Korab et al v. Koller et al

Filing 122

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO DISMISS ACTION WITHOUT PREJUDICE, DOC. NO. 108 ; AND (2) DENYING DEFENDANTS' COUNTER-MOTION FOR SUMMARY JUDGMENT, DOC. NO. 116 . Signed by JUDGE J. MICHAEL SEABRIGHT on 3/5/2015. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TONY KORAB, TOJIO CLANTON,
KEBEN ENOCH, CASMIRA
AGUSTIN, ANTONIO IBANA,
AGAPITA MATEO, and RENATO
MATEO, each individually and on
behalf of those persons similarly
situated,

)
)
)
)
)
)
)
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Plaintiffs,
)
)
vs.
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RACHEL WONG, in her official
)
capacity as Director of the State of
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Hawaii, Department of Human Services, )
and KENNETH FINK, in his official
)
capacity as State of Hawaii, Department )
of Human Services, Med-QUEST
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Division Administrator,
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Defendants.
)
________________________________ )

CIVIL NO. 10-00483 JMS/KSC
ORDER (1) GRANTING IN PART
AND DENYING IN PART
PLAINTIFFS’ MOTION TO
DISMISS ACTION WITHOUT
PREJUDICE, DOC. NO. 108; AND
(2) DENYING DEFENDANTS’
COUNTER-MOTION FOR
SUMMARY JUDGMENT, DOC.
NO. 116

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION TO DISMISS ACTION WITHOUT PREJUDICE, DOC. NO. 108;
AND (2) DENYING DEFENDANTS’ COUNTER-MOTION FOR
SUMMARY JUDGMENT, DOC. NO. 116
I. INTRODUCTION
Although the parties agree that this action should be dismissed, they
disagree on the basis for dismissal of Plaintiffs’ Equal Protection claim and
whether such claim should be dismissed with or without prejudice. (There is no

dispute that Plaintiffs’ Americans with Disabilities Act (the “ADA”) claim should
be dismissed without prejudice.) With both parties refusing to budge, they instead
waste both their and this court’s resources by presenting dueling motions -Plaintiffs filed a Motion to Dismiss without prejudice pursuant to Federal Rule of
Civil Procedure 41(a)(1) on the basis of mootness, Doc. No. 108, and Defendants
filed a Counter-Motion for Summary Judgment. Doc. No. 116. Based on the
following, the court finds that neither party has carried their burden on the Equal
Protection claim and therefore GRANTS Plaintiffs’ Motion as to the ADA claim,
and DENIES the parties’ Motions as to the Equal Protection claim.1
II. BACKGROUND
On April 5, 2010, Plaintiffs filed this class action asserting claims
against Rachel Wong,2 in her official capacity as Director of the State of Hawaii,
Department of Human Services (“DHS”), and Kenneth Fink, in his official
capacity as State of Hawaii, DHS, Med-QUEST Division Administrator
(collectively “Defendants”), challenging DHS’s implementation of a health care
benefits program, Basic Health Hawaii (“BHH”), which Defendants created for
1

Pursuant to Local Rule 7.2(d), the court determines the Motions without a hearing.

2

This action was originally brought against Lillian Koller, the then-Director of DHS,
and Rachel Wong now holds this position. See Fed. R. Civ. P. 25(d) (explaining that when a
public officer is named in her official capacity, her “successor is automatically substituted as a
party”).
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non-pregnant citizens, age nineteen or older, of countries with Compacts of Free
Association (“COFA”) with the United States who are lawfully residing in Hawaii
(“COFA Residents”), and non-pregnant immigrants, age nineteen or older, who
have been United States residents for less than five years (“New Residents”).
Plaintiffs are COFA Residents and New Residents who brought this action on
behalf of themselves and others similarly situated, asserting that BHH violates
(1) the Equal Protection Clause of the Fourteenth Amendment because it provides
less health benefits than the State of Hawaii’s (the “State”) Medicaid program
offered to citizens and certain qualified aliens, and (2) the ADA because BHH is
not administered in the most integrated setting appropriate to meet their medical
needs.
On December 10, 2010, the court granted Plaintiffs’ Motion for
Preliminary Injunction seeking relief as to COFA Residents as to the Equal
Protection claim, finding that BHH is subject to strict scrutiny. See Korab v.
Koller, 2010 WL 5158883 (D. Haw. Dec. 13, 2010). On appeal, the Ninth Circuit
vacated and remanded, determining that BHH is subject to rational basis review.
See Korab v. Fink, 748 F.3d 875, 888 (9th Cir. 2014) cert. denied sub nom. Korab
v. McManaman, 135 S. Ct. 472 (2014). Since the remand, Defendants have
adopted emergency rules suspending BHH, and the State has issued a public
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notice that it plans to repeal BHH and adopt new administrative rules establishing
a different program.
III. DISCUSSION
Both parties’ Motions on the Equal Protection claim suffer from
significant flaws.
Plaintiffs seek dismissal without prejudice on the basis that this claim
is now moot due to BHH’s suspension and the State’s plans to repeal it. But in
bringing this Motion, Plaintiffs largely ignore the framework for determining
when intervening legislation moots a controversy and have therefore failed to
carry their “heavy” burden of establishing mootness. See Cnty. of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979) (“The burden of demonstrating mootness is a
heavy one.”) (quotation marks and citations omitted).
A claim becomes moot if “‘events have completely and irrevocably
eradicated the effects of the alleged violation,’” and there is “‘no reasonable . . .
expectation that the alleged violation will recur.’” Am. Cargo Transp., Inc. v.
United States, 625 F.3d 1176, 1179 (9th Cir. 2010) (quoting Davis, 440 U.S. at
631). And “[w]here intervening legislation has settled a controversy involving
only injunctive or declaratory relief, the controversy has become moot.” Chem.
Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875 (9th Cir. 2006)
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(quoting Bunker Ltd. P’ship v. United States, 820 F.2d 308, 311 (9th Cir. 1987)).
“The test for whether intervening legislation has settled a controversy involving
only declaratory or injunctive relief is ‘whether the new [law] is sufficiently
similar to the repealed [law] that it is permissible to say that the [government’s]
challenged conduct continues.’” Id. (alterations in original) (quoting Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 662 n.3 (1993)). Intervening legislation moots a controversy where the law
has been “sufficiently altered so as to present a substantially different controversy”
from what was originally presented to the court, and that there is “no basis for
concluding that the challenged conduct is being repeated.” Id. (internal alterations
omitted) (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am., 508
U.S. at 662 n.3).
At the time Plaintiffs brought their Motion, BHH had not yet been
repealed. And at no point in their briefing do Plaintiffs explain the content of the
new law (when and if passed), how it differs from BHH, and whether the conduct
challenged in this action is being repeated through the new law. The court
therefore DENIES Plaintiffs’ Motion to Dismiss the Equal Protection claim.
Defendants’ Counter-Motion suffers from its own defects. As an
initial matter, Defendants’ Counter-Motion, which ignores Plaintiffs’ mootness
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arguments and instead asks the court to substantively address the claim, is
improper. Local Rule 7.9 allows a party to file a counter-motion along with its
opposition so long as the counter-motion relates to the same subject matter of the
original motion. Because the subject matter of Plaintiffs’ Motion is mootness and
not the substantive merits of the claim, Defendants needed to file an opposition to
Plaintiffs’ Motion, as well as a stand-alone Motion for Summary Judgment. As it
stands, Defendants presented no arguments whatsoever as to whether the Equal
Protection claim is moot. Instead, they put the proverbial cart before the horse -i.e., substantive merits before jurisdiction -- and the court cannot address
Defendants’ summary judgment arguments if the Equal Protection claim is moot.
See Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (“Mootness is
jurisdictional.”). The court therefore DENIES Defendants’ Counter-Motion for
Summary Judgment.
IV. CONCLUSION
Based on the above, the court GRANTS Plaintiffs’ Motion to the
extent it seeks dismissal of the ADA claim without prejudice, but DENIES the
parties’ Motions as to the Equal Protection claim. Before the parties file any
additional Motion(s) on the Equal Protection claims (presumably correcting the
deficiencies outlined above), the court admonishes the parties NOT to
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unnecessarily waste judicial resources. Both parties agree that the Equal
Protection claim should be dismissed and they therefore should be able to agree on
appropriate language guiding that dismissal.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 5, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Korab et al. v. Wong et al., Civ. No. 10-00483 JMS/KSC, Order (1) Granting in Part and
Denying in Part Plaintiffs’ Motion to Dismiss Action Without Prejudice, Doc. No. 108; and
(2) Denying Defendants’ Counter-motion for Summary Judgment, Doc. No. 116
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