Q & A: The Heavy Burden of Proving a Case Moot

Q. We filed a class action complaint naming the director of the state Medicaid agency as the defendant. The complaint describes numerous instances where Medicaid agency practices have violated recipients? due process rights, including failing to provide adequate written notices and de novo hearings as required by the U.S. Constitution and federal Medicaid law. The state legislature just passed a new law that establishes required content for written notices. This newly-established standard complies with the notice requirements set forth in one of the federal Medicaid regulations cited in our complaint, 42 C.F.R. § 431.210 (2010). The state attorney is now arguing that the case is moot. Does the state have a winning argument? 
A. No, the court should not dismiss this case as moot. The standard for the defendant to establish mootness is very high. When, as in 
your case, it is the agency?s practices and procedures that are being challenged, enactment of a state statute, without more, should not result in dismissal. 
To maintain a case in federal court, the plaintiff must have a live case or controversy at all times. ?A federal court has no authority ?to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.? Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 150 U.S. 651, 653 (1895). 
The scenario described in this Q & A is an example of the ?voluntary cessation? argument. Specifically, the defendant is arguing that the case became moot because an intervening event, namely enactment of a state statute, addressed and corrected the due process problems that are at issue. This is a common argument. 
Advocates must keep in mind that, when a defendant is claiming mootness based on voluntary cessation, the Supreme and other courts have repeatedly emphasized that the burden is a ?stringent one,? and "the ?heavy burden of persua[ding]? the court that the challenged conduct cannot reasonably be expected to start up against lies with the party asserting mootness.? Friends of the Earth v. Laidlaw, 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Ass?n, 393 U.S. 199, 203 (1968) (requiring that subsequent events make it ?absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur?). See also, e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 719 (2007) (rejecting mootness, stating subsequent events must make it ?absolutely clear? the allegedly wrong behavior will not recur);Adarand Constr., Inc. v. Slater, 528 U.S. 216, 224 (2000) (?[M]ootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it 
sought.?); Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (citation omitted) (mootness requires an event that makes it ?impossible for the court to grant any effectual relief whatever?); County of Los Angeles v.Davis, 440 U.S. 621, 625 (1979) (citations omitted) (mooting events must have ?completely and irrevocably eradicated? the effects of the alleged violation); United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953) (finding defendant has ?heavy burden? to establish mootness based on voluntary cessation of allegedly illegal conduct). 

In the example discussed here, the defendant ?s argument is grounded on the enactment of a state statute that allegedly remedies the due process problems at issue in the complaint. Notably, however, the complaint does not challenge the legality of a state statute or regulation, argue that the state law is in conflict with federal law, or ask the court to enjoin a state law. Rather, the case concerns whether the state Medicaid agency?s systemic practices and policies violate existing federal law. So, the enactment of a new state law, without more, should not make the case moot. 
The situation is similar to that recently confronted by a federal district court in North Carolina. There, Medicaid recipients with behavioral health and developmental disability service needs filed a class action case alleging constitutional and statutory due process violations as a result of practices being used by the state Medicaid agency and its contractors to deny, terminate or reduce services. After the case was filed, the state legislature enacted a statute that amended and clarified the existing state due process requirements. The Medicaid agency argued that enactment of the state law made the recipients? case moot. In response, the recipients argued that the state statute merely subjected the Medicaid agency to yet another layer of legal duties in addition to those already in place in existing federal and state due process laws. TheDistrict Court agreed with the Medicaid recipients and refused to find the case moot. According to the court,
Legislation that merely touches upon issues involved in litigation does not ? render an action moot?. While the new legislation may supersede certain state regulations pertaining to North Carolina?s Medicaid program, plaintiffs are not challenging these or any other regulations or statutes. Rather, plaintiffs? challenge is to the practices and procedures utilized by defendant and his agent?. In large part, the new legislation simply codifies protections already afforded by the federal and state laws that plaintiff alleges, and defendant denies, are being violated.
McCartney v. Cansler, 608 F. Supp. 2d 694, 703 (E.D. N.C. 2009); compare Nat?l Ass?n of Neighborhood Health Centers, Inc. v. Mathews, 551 F.2d 321, 339 (D.C. Cir. 1976) (rejecting mootness where ?the new statute, in pertinent part, appears quite similar to the old one?). 
By contrast, the mootness debate might indeed be resolved differently if the complaint presented a facial challenge to a state law. For example, appellate courts have found cases moot where the state legislature repealed a law or amended it to excise a challenged provision after the district court found the provision to be illegal. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582 (1989); Princeton Univ. v. Schmid, 455 U.S. 100 , 103 (1982) (per curium) (?substantial amendment? of challenged regulation made case moot) . See also, e.g., Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000) (holding statutory changes rendered case moot); Maryland Highway Contractors Ass?n v. State of Maryland, 933 F.2d 1246, 1249 (4th Cir. 1991) (finding new law made case moot and noting that opinion would also be advisory because it would be based on a record that was developed when the old law was in place). 
But, the repeal of a law does not necessarily render a case moot. For example, in City of Mesquite v. Aladdin?s Castle, the Supreme Court held that the case was not moot, notwithstanding the city?s repeal of a challenged ordinance because there was no barrier to the city reenacting precisely the same provision if district court?s judgment were vacated. 455 U.S. 283, 289 (1982). But see Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000) (distinguishing City of Mesquite and finding that ?statutory changes that discontinue a challenged practice are usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.?) (citations and quotations omitted).

Finally, even if the defendant were able to establish that the notice issues were resolved, it would not be proper to dismiss the case. As noted, your case involves other issues, including alleged problems with de novo hearings. And, there is no evidence that the defendant has cured these violations. 
Recommendations and Conclusion
  • When arguing against mootness, stress the heavy burden of proof that must be meet. While your judge will almost certainly be familiar with the standard, it does no harm to offer multiple reminders in briefs. 
  • If you requested declaratory relief in your complaint, the case may not be moot even if the claim for injunctive relief is lost. In Super Tire Engineering v. McCorkle, the Supreme Court held that although a claim for injunctive relief preventing payment of cash benefits during a strike was moot because the strike had ended, the employers' request for declaratory relief was not moot because the state?s ongoing policy of paying strike benefits was, on the employers? theory of the case, ?immediately and directly injurious to the [employers?] economic positions.?416 U.S. 115, 125 (1974). 
  • Assess the mootness argument holistically. If the Defendants? memorandum in support of the motion to dismiss or an affidavit from the defendant reflects the position that no legal violations have occurred, this contradicts and undermines the argument for mootness. See, e.g., Parents Involved in Cmty. Sch., 551 U.S. at 702 (finding lack of absolute clarity that challenged practices had ceased where defendant "vigorously defends? the constitutionality of its actions); Honig v. Doe, 484 U.S. 305, 321 (1988) (finding case was not moot where state?s arguments gave Court every reason to believe that, absent an injunction, plaintiff would face a substantial threat of adverse action in the future); United States v. Gov?t of Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004) (finding government?s ?continued defense of the validity and soundness of the contract prevents the mootness argument from carrying much weight?); Doe v. Harris, 696 F.2d 109 (2d Cir. 1982) (refusing to find a case moot where the defendant was insisting that it had acted properly); Armster v. U.S. Dist. Ct., 806 F.2d 1247, 1359-60 (9th Cir. 1986) (?It has long been recognized that the likelihood of recurrence of challenged activity is more substantial when the cessation is not based upon a recognition of the initial illegality of that conduct.?); Virginia ex rel. Coleman v. Califano, 631 F.2d 324, 326-27 (4th Cir. 1980) (finding complaint seeking a declaration that the State of Virginia had a right to a hearing was not moot, in part because the federal government continued to assert its position that a hearing was not required); see also Pederson v. Louisiana State Univ., 213 F.3d 858, 875 (5th Cir. 2000) (finding statement of the state Attorney General in a brief did not moot the challenge because ?the Attorney General must proffer more than a conclusory assertion of inapplicability to convince us that the [plaintiff] Association no longer faces a credible threat of prosecution.?) 
  • If the motion to dismiss is based upon enactment of a state statute, check the statute for a sunset clause. If such a provision is included, this provides additional argument against mootness. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (noting that a citywide moratorium would not moot an otherwise valid claim for injunctive relief, because moratorium by its terms was not permanent); Carpenter v. Dep?t of Transp., 13 F.3d 313, 314 n.1 (9th Cir. 1994) (finding case was not moot where programmatic change cited by defendant was only temporary); see generally Hunt v. Cromartie, 526 U.S. 541, 545 n.1 (1999) (action by state residents not moot where the state?s new redistricting plan provided for reversion to the old plan upon a favorable ruling from Supreme Court).


1 Produced by the National Health Law Program with a grant from the Nathan Cummings Foundation, NC IOLTA, and the Training Advocacy Support Center (TASC), which is sponsored by the Administration on Developmental Disabilities, the Center for Mental Health Services, the Rehabilitation Services Administration, the Social Security Administration, and the HealthResources Services Administration. TASC is a division of the National Disabilities Rights Network (NDRN).

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