Cody v. Cox

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided December 14, 2007

No. 06-5253

MARTIN CODY, ET AL.,

APPELLANTS

v.

TIMOTHY C. COX,

CHIEF OPERATING OFFICER, ARMED FORCES RETIREMENT

HOME, AND

ROBERT M. GATES, SECRETARY OF DEFENSE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01041)

David H. Bamberger argued the cause for appellants. With

him on the briefs was J. David Folds.

Brian C. Baldrate, Special Assistant United States Attorney,

argued the cause for appellees. With him on the brief were

Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,

Assistant U.S. Attorney. Steven M. Ranieri, Assistant U.S.

Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and SENTELLE and

BROWN, Circuit Judges.

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Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Chief Judge GINSBURG.

BROWN, Circuit Judge: Plaintiffs are elderly veterans who

seek to force the Armed Forces Retirement Home to provide

“high quality” health care, as required by 24 U.S.C. § 413(b).

The district court dismissed their case as moot, relying on new

amendments to section 413. We reverse and hold the case is not

moot and subsection 413(b) is not committed to agency discre-

tion by law.

I

The Armed Forces Retirement Home-Washington D.C.

(“Home”), provides full-time housing and medical care for

approximately 1,000 elderly veterans. In 2003, the Chief

Operating Officer of the Home (“COO”) introduced a series of

cost-saving measures that plaintiffs, a group of full-time

residents at the Home, claim led to a severe decrease in the

quality of medical care. The alleged deficiencies include

unavailability of physicians and dentists, neglect of patients, and

delays in obtaining prescription drugs.

In 2005, plaintiffs sued the COO and the Secretary of

Defense (“defendants”), requesting an injunction to force

defendants to provide “high quality” health care as required by

24 U.S.C. § 413(b). They asked the district court to mandate the

Home to: maintain “a primary treatment room, staffed by an

on-location physician, to provide primary health care to resi-

dents of the Home seven days a week, twenty-four hours a day”;

maintain “the ability to provide promptly the medications

required for the treatment of residents”; maintain “the ability to

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provide on-site x-ray services, electrocargiogram [sic] services,

laboratory work, and such other services as are required to

provide for the primary health care needs of the residents”;

provide “annual examinations for each resident to assess their

overall physical and mental condition”; and provide “adequate

resources (such as transportation).” Their requested relief was

not “limited to” these remedies and they also asked the court to

“[a]ward such other and further relief, including costs and

attorneys’ fees, as the Court may deem just and proper.”

In 2006, Congress amended section 413, mandating specific

measures regarding physicians, dentists, and transportation, and

requiring the COO to issue uniform standards to ensure access

to care. The district court found that these amendments ren-

dered plaintiffs’ claims moot and granted defendants’ motion to

dismiss the case. See Cody v. Rumsfeld, 450 F. Supp. 2d 5, 9-11

(D.D.C. 2006). Plaintiffs now appeal.

II

The mootness doctrine ensures that federal courts only

decide ongoing cases and controversies. Clarke v. United States,

915 F.2d 699, 700-01 (D.C. Cir. 1990) (en banc). For a case to

become moot, it must be “impossible for the court to grant ‘any

effectual relief whatever.’” Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green,

159 U.S. 651, 653 (1895)).

When plaintiffs filed their complaint, subsection 413(a)

provided that a resident at the Home “shall receive the services

authorized by the Chief Operating Officer.” 24 U.S.C. § 413(a)

(Supp. I 2001)). Subsection (b) was the only limitation on the

COO’s discretion and mandated that the Home “shall provide

for the overall health care needs of residents in a high quality

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and cost-effective manner, including on site primary care,

medical care, and a continuum of long-term care services.” §

413(b) (emphasis added).

In January 2006, Congress amended section 413 by adding

more specific requirements. See National Defense Authoriza-

tion Act for Fiscal Year 2006, Pub. L. No. 109-163, § 909(a),

119 Stat. 3136, 3404-05. While leaving subsection (b) substan-

tially intact, the amendments inserted subsections (c) and (d) as

additional limitations on the COO’s discretion under subsection

(a). Under subsection (c), the Home must “have a physician and

a dentist- (A) available at the facility during the daily business

hours of the facility; and (B) available on an on-call basis at

other times,” and those professionals must “have the skills and

experience suited to residents of the facility.” Under subsection

(d), the Home must “provide daily scheduled transportation to

nearby medical facilities used by residents of the facility,” and

“may provide, based on a determination of medical need,

unscheduled transportation for a resident of the facility to any

medical facility located not more than 30 miles from the facility

for the provision of necessary and urgent medical care for the

resident.” Finally, under subsection (c)(3), “the Chief Operating

Officer, in consultation with the Medical Director, shall estab-

lish uniform standards, appropriate to the medical needs of the

residents, for access to health care services during and after the

daily business hours of the facility.”

The district court held that the newly enacted subsections

rendered plaintiffs’ complaint moot. In essence, the court

concluded that by adding these new subsections, Congress made

subsection (b)’s requirement that the Home provide “high

quality and cost-effective” health care a mere redundancy.

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Yet, “the normal assumption is that where Congress amends

only one section of a law, leaving another untouched, the two

were designed to function as parts of an integrated whole.”

Markham v. Cabell, 326 U.S. 404, 411 (1945). Under the newly

amended subsection (a), the COO’s discretion is limited by

“subsections (b), (c), and (d).” This demonstrates subsection

(b)’s “high quality” mandate has force beyond subsections (c)

and (d). Accordingly, we hold section 413 functions as an

“integrated whole,” with subsections (c) and (d) serving as a

baseline that does not exhaust subsection (b)’s “high quality and

cost-effective” health care mandate. The district court could

have provided meaningful relief under subsection (b), notwith-

standing the new subsections.1

Under the district court’s interpretation, the COO could

decide to provide no physical examinations for residents simply

because examinations are not specified in subsections (c) and

(d). Similarly, on this reading, the COO could decide to hire

just one physician for 1,000 elderly residents because subsection

(c) only requires that “a physician” be “available.” Conversely,

under our interpretation, the COO could provide no examina-

tions and only one physician only if doing so would satisfy

subsection (b)’s “high quality and cost-effective” health care

mandate. While the requirements of subsections (c) and (d)

inform this “high quality and cost-effective” inquiry, they do not

completely exhaust its scope.

1

While its wording was unclear, the district court did not decide

whether the Home complied with the newly enacted subsections (c)

and (d). See Cody, 450 F. Supp. 2d at 10 n.2. This was the proper

course, since plaintiffs had not alleged violations of these new

subsections. On remand, plaintiffs may choose to amend their

complaint to reflect these changes. See FED. R. CIV. P. 15(a)(2) (“The

court should freely give leave [to amend] when justice so requires.”).

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We conclude plaintiffs’ complaint is not moot, either for the

subjects mentioned by subsections (c) and (d), like physicians

and transportation, or for those not specifically addressed by

those subsections, like physical examinations and medical

supplies.2

III

Defendants claim subsection (b)’s “high quality and cost-

effective” health care requirement is exempted from judicial

review under the Administrative Procedure Act because the

COO’s decision is “committed to agency discretion by law”

2

The district court found plaintiffs’ requests for examinations,

medical supplies, and transportation were premature because the COO

had not issued “uniform standards” under subsection 413(c)(3) or

exercised his discretion under subsection (d)(1). Cody, 450 F. Supp.

2d at 9-10 (“For this Court to order the relief requested prior to those

standards being set would supplant the power” Congress gave to the

COO). The Chief Judge’s concurrence seems to adopt the district

court’s notion that the COO must, apart from providing care,

“promulgate” more “specific” standards. Concurring op. at 2. Yet,

as defendants’ counsel explained at oral argument: “[The COO is]

issuing standards all the time and that’s what a Chief Operation

Officer does. When he establishes a new bus schedule, when he sets

up x-ray services or contracts out a doctor, that’s what he does . . . .”

This shows the COO, in “establish[ing] uniform standards” and

exercising his discretion, is not contemplating a more formal process

than continuing to provide care at the Home, and no party has

suggested this approach is inconsistent with subsections 413(c)(3) and

(d)(1). Accordingly, the district court’s concern that its involvement

in this dispute would be premature was unfounded.

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under 5 U.S.C. § 701(a)(2).3 To prevail, defendants must rebut

the presumption that agency action is judicially reviewable by

showing “the relevant statute ‘is drawn so that a court would

have no meaningful standard against which to judge the

agency’s exercise of discretion.’” Lincoln v. Vigil, 508 U.S.

182, 191 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830

(1985)). Defendants have failed to satisfy this burden.

First, section 413 does not fall into one of the narrow

categories that usually satisfies the strictures of subsection

701(a)(2). See Lincoln, 508 U.S. at 191-92. This case does not

involve “second-guessing executive branch decision[s] involv-

ing complicated foreign policy matters.” Legal Assistance for

Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349,

1353 (D.C. Cir. 1997). Nor does it relate to an agency’s refusal

to undertake an enforcement action, Heckler, 470 U.S. at 831,

or its determination about how to spend a lump-sum appropria-

tion, Lincoln, 508 U.S. at 192.

Second, while subsection 413(a) gives the COO broad

discretion in administering care, it qualifies that discretion with

the phrase: “[e]xcept as provided in subsection (b), (c), and (d).”

Plainly, Congress intended subsection (b)’s “high quality and

cost-effective” standard to limit the COO’s discretion under

subsection (a). Although “high quality and cost-effective”

health care is a tricky standard for a court to apply, that diffi-

cultly is not unique to this statute. For example, in determining

whether doctors are immune from suit while taking part in

professional review activities, courts and juries must decide,

3

We may consider this argument even though defendants did not

cross-appeal because they are only seeking to support the district

court’s judgment on an alternative ground. See United States v. Am.

Ry. Express Co., 265 U.S. 425, 435 (1924).

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under an objective standard, whether the doctors acted with

“reasonable belief” that their actions were “in furtherance of

quality health care.” 42 U.S.C. § 11112(a)(1); see also Mathews

v. Lancaster Gen. Hosp., 87 F.3d 624, 635 (3d Cir. 1996).

Furthermore, 5 U.S.C. § 701(a)(2) provides a “very narrow

exception” that applies only in “rare instances.” Citizens to

Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

The difficulty of defining the boundaries of “high quality and

cost-effective” health care is insufficient to make subsection (b)

one of those rare instances.

We have regularly found Congress has not committed

decisions to agency discretion under far more permissive and

indeterminate language. For example, in Dickson v. Secretary

of Defense, 68 F.3d 1396 (D.C. Cir. 1995), we found judicial

review was available for abuse of discretion when the statute

stated that a board “may excuse a failure to file [a request to

correct an error in a military record] within three years after

discovery if it finds it to be in the interest of justice.” Id. at

1399-1404. If language that a board “may” take an action if it

“finds it to be in the interest of justice” provides a “meaningful

standard against which to judge the agency’s exercise of discre-

tion,” Lincoln, 508 U.S. at 191, surely wording mandating that

the COO “shall” provide “high quality and cost-effective” health

care does so as well.

IV

We conclude plaintiffs’ allegations under subsection (b)

are neither moot nor “committed to agency discretion by

law.” We therefore reverse the judgement of the district court

and remand the case for further proceedings.

So ordered.

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GINSBURG, Chief Judge, concurring: I write separately only

because I do not agree with the Court’s reason for holding the

issues in this case are ripe for decision. I do not disagree with

the Court’s conclusion.

The district court read the amendment of 24 U.S.C. § 413

largely to supplant the mandate of § 413(b) that the Home

provide “high quality and cost-effective” health care. For

example, because § 413(c)(1)(A) provides “the Retirement

Home shall have a physician and a dentist ... available at the

facility during the daily business hours of the facility,” the

district court concluded that the statute did not oblige the Home

to have a physician on site overnight and therefore that the

amendment mooted the plaintiffs’ prayer for that relief. See Ct.

Op. at 4-5. The district court also held the amendment made

unripe all the plaintiffs’ claims it did not moot. 450 F. Supp. 2d

at 9-10. Apparently reading the amendment to make § 413(b)

applicable only when the COO provides care pursuant to §

413(c)(3), the court noted the COO had not yet issued standards.

See, e.g., id. at 9 (“[T]he standards controlling ... access to

medication ... are yet to be established under [§ 413(c)(3)] by

[the] COO. ... Accordingly, this relief requested by plaintiffs is

being sought prematurely ....”). The court was troubled also that

the COO was yet to exercise his discretion pursuant to § 413(d).

Id.

The Court seizes upon Government counsel’s statement at

oral argument that the COO is “issuing standards all the time,”

as though that addressed the district court’s concern with

ripeness. Ct. Op. at 6 n.2. The Court infers counsel’s position

was that § 413(c)(3) does not require “a more formal process

than continuing to provide care at the Home.” Id. That is not,

however, the position of the Government, the brief of which

adopted the view of the district court: “Since [the COO] has yet

to establish ... standards, the District Court properly held” the

case was unripe. The plaintiffs, too, view § 413(c)(3) as

requiring the COO to do more than provide care: “[I]t has now

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been seventeen months since the statute was amended to require

the COO to issue the standards, but they still have not been

issued.” It is hardly surprising, therefore, that “no party has

suggested [the Court’s] approach is inconsistent with” the

statute. Ct. Op. at 6 n.2.

In context, moreover, I think it clear counsel was not

addressing the scope of § 413(c)(3) and did not represent that

the COO had promulgated “standards.” He discussed neither the

text nor the purpose of the amendment. Nor did he explain why

reading the statute as the Court now does would not render §

413(c)(3) a nullity. Furthermore, counsel’s examples of

“standards” were just instances of the Home providing care.

(“[The COO is] issuing standards all the time .... When he

establishes a new bus schedule, when he sets up x-ray services

or contracts out a doctor, that’s what he does.”)

Considering that the Court has an obligation independently

to determine whether the district court had jurisdiction, we

should not strain to interpret counsel’s ex tempore remark at oral

argument as establishing a fact for which there is no record

support and which contravenes the same party’s written

submission. Even as the Court interprets counsel’s statement,

moreover, that statement does not address the district court’s

concern that the COO had yet to exercise his discretion

regarding the provision of transportation pursuant to §

413(d)(1).

In my view, it is nonetheless clear, quite apart from

counsel’s statement, this case is ripe. The plaintiffs complain

that the Home does not provide care consistent with the standard

set out in § 413(b) (“high quality and cost-effective” health

care), not that the COO has violated his obligations to

promulgate more specific standards pursuant to § 413(c)(3) and

to provide for the transportation of residents pursuant to §

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413(d)(1). Whatever the role of those provisions, they do not

displace the mandate of § 413(b). For instance, the plaintiffs

assert that § 413(b) requires the COO to provide x-ray services

on-site, as the Home used to do. The COO already has decided

to eliminate this service, although he did so through an informal

adjudication rather than by promulgating a “standard” under §

413(c)(3). That decision and others like it have allegedly

injured the plaintiffs and given rise to a live controversy over the

question whether the Home is providing the “high quality and

cost-effective” health care required of it by § 413(b).