           United States Court of Appeals
                      For the First Circuit


No. 13-2365

         ALBERT DAVIDSON, as Guardian of Marilyn Davidson;
         REGINA DAVIDSON, as Guardian of Marilyn Davidson,

                      Plaintiffs, Appellants,

                                v.

  ELIN HOWE, as Commissioner of the Massachusetts Department of
                     Developmental Services,

                       Defendant, Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]



                              Before

                        Lynch, Chief Judge,
                     Thompson, Circuit Judge,
                    and Smith,* District Judge.



     Margaret M. Pinkham, with whom Elise Busny and Pinkham Busny
LLP were on brief, for appellants.
     Timothy J. Casey, Assistant Attorney General, with whom Martha
Coakley, Attorney General of Massachusetts, was on brief, for
appellee.

                          April 16, 2014



     *
         Of the District of Rhode Island, sitting by designation.
              LYNCH,   Chief   Judge.         Plaintiffs   Albert     and    Regina

Davidson are guardians of 70-year-old Marilyn Davidson (whom we

refer to as "Marilyn"), who is in state care.              They appeal from the

district court's denial of a preliminary injunction in an action

purported to be brought under the federal Medicaid Act and various

implementing regulations.        Davidson v. Howe, No. 1:13-cv-12634-WGY

(D. Mass. Oct. 29, 2013).         Plaintiffs sought to enjoin Marilyn's

transfer from the Fernald Developmental Center, her home since 1985

and which was being closed, to her new home at the Wrentham

Developmental       Center.    Both     are    Intermediate    Care   Facilities

("ICFs")      for   the   intellectually        disabled     operated       by   the

Massachusetts Department of Developmental Services ("DDS").

              On appeal, the Davidsons argue in their briefs that the

district court erred in denying the injunction and in holding that

the statutory and regulatory provisions cited in their complaint,

42 U.S.C. § 1396a(a)(31) and 42 C.F.R. § 483.430, do not create a

private right of action.

              The Commonwealth argues that plaintiffs' case should be

dismissed because the claims for injunctive and declaratory relief

have   been    rendered   moot   by     Marilyn's    completed      transfer      to

Wrentham, and that plaintiffs' claim for money damages is barred by

the Eleventh Amendment.        We agree that the claims for injunctive

and declaratory relief in the case are moot.                  The case does not

raise issues which fall into an exception for mootness.                     We also


                                        -2-
hold that the damages claim is barred by the state's Eleventh

Amendment immunity.   We do not reach the question of whether there

is a private right of action under the statute and accompanying

regulations.

                                I.

          Marilyn is intellectually disabled and has been in DDS

care for most of her life.   Marilyn was first admitted to Fernald

at age six in 1949.    At age sixteen, Marilyn was transferred to

Metropolitan State Hospital.   Other than a short period when she

lived in Westborough State Hospital, she remained at Metropolitan

State Hospital until 1985, at which time she was transferred back

to Fernald.    In 2003, the Commonwealth announced that it would

close Fernald, described as "by far the most costly of the ICFs to

run and the most seriously noncompliant with the Americans with

Disabilities Act of 1990[, 42 U.S.C. § 12101 et seq.]."1   M.D. ex

rel. Davidson v. Dep't of Developmental Servs. ("Davidson I"), 83

Mass. App. Ct. 463, 464 n.4, 985 N.E.2d 863, 864 n.4, review

denied, 465 Mass. 1107, 989 N.E.2d 900 (2013).      In 2008, after

protracted litigation, this court held that the Commonwealth could


     1
         In budgetary appropriations from 2004 to 2007, the
Massachusetts legislature directed DDS (then the "Department of
Mental Retardation") to take measures to consolidate or close its
six ICFs for the intellectually disabled. Ricci v. Patrick, 544
F.3d 8, 12 (1st Cir. 2008).      Among the reasons cited by the
legislature were "avoid[ing] discrimination against mentally
disabled persons by promoting their placement into community
settings" and using available resources for the care of the
intellectually disabled more efficiently. Id.

                                -3-
close Fernald without re-opening the landmark 1993 consent decree,

see Ricci v. Okin ("Ricci III"), 823 F. Supp. 984 (D. Mass. 1993),

that brought to an end more than two decades of institutional

reform   litigation      concerning       the    intellectually   disabled    in

Massachusetts.2    Ricci v. Patrick ("Ricci V"), 544 F.3d 8, 15-22

(1st Cir. 2008).

             Under the Ricci consent decree, certain disputes about

treatment of class members are submitted to the state system.                See

id. at 20.    There were extensive state administrative and judicial

proceedings    leading    up   to   Marilyn's       transfer   from   Fernald.

Following this court's decision in Ricci V, DDS began to plan

Marilyn's transfer from Fernald.                DDS discussed with plaintiffs

various alternative placements including at the two ICFs that would

remain in operation (Wrentham and the Hogan Regional Center) as

well as at state- and vendor-run community-based facilities.

Davidson I, 83 Mass. App. Ct. at 474, 985 N.E.2d 863 at 871.

Plaintiffs made plain that they opposed Marilyn's transfer from

Fernald.     Id.   In May 2010, DDS gave plaintiffs notice of its

specific plan to transfer Marilyn from Fernald to Wrentham. Id. at

465, 985 N.E.2d at 865; see Mass. Gen. Laws ch. 123B, § 3.

Plaintiffs     objected    and      DDS    referred     the    matter   to   the



     2
        Marilyn is a member of the Ricci class, entitling her to
certain specialized supports and services for as long as she needs
them. See 115 Mass. Code Regs. § 6.05 (defining the Ricci class
and services available to class members).

                                      -4-
Massachusetts Division of Administrative Law Appeals.            Davidson I,

465 Mass. App. Ct. at 465, 985 N.E.2d at 865; see Mass. Gen. Laws

ch. 123B § 3.   Chapter 123B, § 3 of Massachusetts General Laws is

a state law providing an administrative due process mechanism for

review of agency decisions, followed by a mechanism for judicial

review in the state courts. An evidentiary hearing was held before

an   administrative   magistrate.         The    magistrate    approved   the

transfer, concluding that Marilyn's transfer to Wrentham "would

result in improved services and quality of life and was in her best

interest."3   Davidson I, 465 Mass. App. Ct. at 465, 985 N.E.2d at

865; see Mass. Gen. Laws ch. 123B, § 3.

           Plaintiffs   sought      state       judicial    review   of   the

magistrate's decision; the Superior Court affirmed.              Davidson I,

465 Mass. App. Ct. at 465, 985 N.E.2d at 865; see Mass. Gen. Laws

ch. 30A, § 14(7). Plaintiffs appealed the Superior Court decision;

in April 2013, the Massachusetts Appeals Court affirmed.             Davidson

I, 83 Mass. App. Ct. at 465, 985 N.E.2d at 865.            And, in June 2013,

the Massachusetts Supreme Judicial Court denied further appellate


      3
        The magistrate declined to consider plaintiffs' various
federal law challenges to the proposed transfer, holding that Mass.
Gen Laws. c. 123B, § 3 limited his authority to determining whether
the transfer would be in Marilyn's best interest. See Davidson I,
83 Mass. App. Ct. at 466, 985 N.E.2d at 865; see also Box Pond
Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408, 416, 758
N.E.2d 604, 611 (2001) (holding that an agency's interpretation of
its statutory mandate will not be disturbed unless it is "patently
wrong, unreasonable, arbitrary, whimsical, or capricious" (quoting
TBI, Inc. v. Bd. of Health of N. Andover, 431 Mass. 9, 17, 725
N.E.2d 188, 194 (2000)) (internal quotation mark omitted)).

                                    -5-
review, see 465 Mass. 1107, 989 N.E.2d 900.                        At this point,

plaintiffs had exhausted all means of challenging the proposed

transfer under Massachusetts law.

                   DDS continued to plan for Marilyn's transfer.          On August

22, 2013, DDS held a meeting with plaintiffs and Fernald and

Wrentham staff members to update Marilyn's Individual Transition

Plan ("ITP"). Under the updated ITP, Marilyn was scheduled to move

to Wrentham on October 22, 2013.

                   On October 18, 2013, plaintiffs filed a complaint in

federal district court alleging that the ITP for Marilyn's transfer

violated the federal Medicaid statute and various implementing

regulations.4          See 42 U.S.C. § 1396a(a)(31); 42 C.F.R. § 483.430.

That        same    day,   plaintiffs   filed   a   motion   for    a   preliminary

injunction, seeking to delay Marilyn's transfer from Fernald to

Wrentham until such time as DDS adopted an appropriate transition

plan.

                   The district court held an initial hearing on October 21,

during which it directed the parties to file additional briefing on

whether the various federal regulations cited in the complaint

created a private right of action and, if so, what legal standard

the court was to use to adjudicate plaintiffs' claims.                   Plaintiffs



        4
       Plaintiffs have abandoned any claims under Title II of the
Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, Section
504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and equal
protection under 42 U.S.C. § 1983.

                                         -6-
filed an amended complaint on October 27.      On October 28, the

district court held a second hearing, during which the court denied

plaintiffs' request for injunctive relief on the ground that the

regulations cited in the original complaint did not create a

private right of action, but nonetheless allowed plaintiffs to file

an amended complaint.5    The court held further that Marilyn's

transfer could proceed on October 31 absent a stay from this court.

Plaintiffs appealed and asked this court for a stay pending appeal.

This court denied plaintiffs' request for a stay on October 30,

reasoning that, even if plaintiffs had a private right of action,

the court "ha[d] no confidence at this stage that staying the

transfer would do Marilyn more good than harm."6       Marilyn was

transferred the next day to Wrentham and has continued to reside

there.

                                II.

          We take up the question of mootness.    In their briefs,

plaintiffs took the position the case was not moot because they say

they have ongoing claims for declaratory and injunctive relief as

to Marilyn's care and so fall under an exception to the mootness



     5
       In so doing, the district court appears to have authorized
retroactively the amended complaint filed by plaintiffs the
previous day.
     6
         We relied on testimony in affidavits accompanying the
Commonwealth's response to plaintiffs' motion to stay. In those
affidavits, both Marilyn's physician and her psychiatrist stated
that further delay would be contrary to Marilyn's best interest.

                                -7-
doctrine, and because they have a remaining claim for damages from

the transfer. At oral argument, counsel for plaintiffs agreed that

the declaratory and injunctive relief originally sought, both

regarding Marilyn's now-inactive ITP, are now moot.

          "The doctrine of mootness enforces the mandate that an

actual controversy must be extant at all stages of the review, not

merely at the time the complaint is filed."    Am. Civil Liberties

Union of Mass. v. U.S. Conference of Catholic Bishops ("ACLU"), 705

F.3d 44, 52 (1st Cir. 2013) (quoting Mangual v. Rotger–Sabat, 317

F.3d 45, 60 (1st Cir. 2003)) (internal quotation marks omitted).

"If events have transpired to render a court opinion merely

advisory, Article III considerations require dismissal of the

case."   Mangual, 317 F.3d at 60.     "The burden of establishing

mootness rests with the party invoking the doctrine . . . ."   ACLU,

705 F.3d at 52.

          Here, the transfer from Fernald to Wrentham has been

completed and the administrative plan under which the transfer was

effectuated is no longer in effect as to Marilyn.         Absent a

cognizable claim for damages, when a challenged plan goes out of

effect, "there is literally no controversy left for the court to

decide -- the case is no longer 'live.'"      ACLU, 705 F.3d at 53

(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).        More

still, a court can provide no meaningful relief to the challenging

party since, once the plan ceases to be operative, there is no plan


                               -8-
left to enjoin, cf. New Eng. Reg'l Council of Carpenters v. Kinton,

284 F.3d 9, 18 (1st Cir. 2002), and, "[w]ith limited exceptions,

. . . issuance of a declaratory judgment deeming past conduct

illegal is also not permissible as it would be merely advisory."

ACLU, 705 F.3d at 53.

          Plaintiffs maintain that their original complaint is not

moot, first because their case nonetheless fits an exception to the

mootness doctrine, and second because they have a cognizable claim

for damages.   Both arguments fail.

A.        "Capable of Repetition, Yet Evading Review"

          Plaintiffs argue that the issues presented are "capable

of repetition, yet evading review."      S. Pac. Terminal Co. v.

Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911); see, e.g., In

re Grand Jury Proceedings, 744 F.3d 211, 218-19 (1st Cir. 2014);

ACLU, 705 F.3d at 56-57.   This exception to the mootness doctrine

applies only in "exceptional situations."   City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983). Plaintiffs must show that "(1) the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be

subjected to the same action again."   Weinstein v. Bradford, 423

U.S. 147, 149 (1975).

          The Davidsons cannot meet those standards. In fact, they

litigated in the state administrative and judicial systems the


                                -9-
questions about the appropriateness of Marilyn's transfer for over

three years. Their state litigation ended in June 2013; they filed

this federal suit four months later.

             In any event, plaintiffs have done nothing to show a

"'reasonable expectation' or 'demonstrated probability,'" ACLU, 705

F.3d at 57 (quoting Murphy v. Hunt, 455 U.S. 478, 483 (1982) (per

curiam)), that Marilyn "will again be subjected to the alleged

illegality" as to her transfer, id. (internal quotation marks

omitted) (quoting Lyons, 461 U.S. at 109). DDS insists that it has

no plan to transfer Marilyn again.          Plaintiffs make no contrary

allegation.     Fernald has now been closed.

             Instead, plaintiffs try to reshape their case.     They now

contend that DDS, post-transfer, is likely to afford Marilyn

inadequate     care,   in   contravention    of   unspecified   Medicaid

regulatory requirements.     In their original complaint, plaintiffs

alleged that adherence to the ITP for Marilyn's transfer from one

ICF to another would result in undue harm to Marilyn by requiring

her to transition without adequate precautions.        This is the only

"alleged illegality" at issue, and the transfer has been completed.

             If plaintiffs have new complaints based on Marilyn's

post-transfer care, they must utilize their state remedies.         See

Ricci V, 544 F.3d at 20 ("The Disengagement Order and state

regulations provide a procedure and a place where individual

disputes about adequacy of the services resulting from the ISP


                                  -10-
process may be heard. . . . Again, the Disengagement Order commits

these disputes to resolution in a state forum and under state law

and thus provides no basis for federal court intervention."); Ricci

III, 823 F. Supp. at 988 ("Individual ISP disputes shall be

enforced solely through the state ISP process.").

B.         Claim for Damages

           Plaintiffs' claim for damages is squarely foreclosed by

the   Commonwealth's   Eleventh   Amendment   immunity    from   suit   for

damages in federal court.7   Though the district court did not reach

this issue, we deal with it because plaintiffs have directly argued

the issue to us as part of mootness, in the interest of efficiency,

and because the record makes the issue manifest.         See, e.g., In re

Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348

F.3d 16, 26 (1st Cir. 2003).      As one commentator has noted, "[a]

damages claim suffices to avoid mootness only if viable."               13C




      7
        At oral argument, plaintiffs argued for the first time that
their claim for attorney's fees under 42 U.S.C. § 1983 is, by
itself, enough to keep this a live case or controversy.        This
argument is waived. DeCaro v. Hasbro, Inc., 580 F.3d 55, 64 (1st
Cir. 2009) ("It is common ground that contentions not advanced in
an appellant's opening brief are deemed waived."). It also fails.
The Supreme Court has stated flatly that an "interest in attorney's
fees is, of course, insufficient to create an Article III case or
controversy where none exists on the merits of the underlying
claim." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 (1990); see
also Diamond v. Charles, 476 U.S. 54, 70–71 (1986) ("[T]he mere
fact that continued adjudication would provide a remedy for an
injury that is only a byproduct of the suit itself does not mean
that the injury is cognizable under Art. III.").

                                  -11-
Wright & Miller, Federal Practice & Procedure § 3533.3 (3d ed.

2003) (emphasis added).

            "[A]   suit   by   private   parties   seeking   to   impose    a

liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment."         Edelman v. Jordan,

415 U.S. 651, 663 (1974). This is true whether the named defendant

is the state itself or, as here, a state official in her official

capacity.    Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 234

(1st Cir. 2002) ("As a general matter, the Eleventh Amendment bars

suits in federal courts against unconsenting states (including

'official capacity' suits against state hierarchs)."); see also

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[A]

suit against a state official in his or her official capacity is

not a suit against the official but rather is a suit against the

official's office. As such, it is no different from a suit against

the State itself." (citation omitted)).

            This case does not fit into any exception to Eleventh

Amendment   immunity.      First,   Congress   may   abrogate     a   state's

sovereign immunity through "appropriate legislation," Va. Office

for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011);

"[s]econd, a State may waive its sovereign immunity by consenting

to suit," Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 670 (1999).             This court "will find

waiver only where stated 'by the most express language or by such


                                    -12-
overwhelming implications from the text as [will] leave no room for

any other reasonable construction.'"                       Edelman, 415 U.S. at 673

(alteration in original) (quoting Murray v. Wilson Distilling Co.,

213 U.S. 151, 171 (1909)).               Other than by an express statement, a

state can waive its immunity by clear declaration that it intends

to submit itself to the jurisdiction of a federal court, Coll. Sav.

Bank, 527 U.S. at 676, by participating in a federal program that

requires waiver of immunity as an express condition, see Atascadero

State       Hosp.   v.     Scanlon,     473   U.S.    234,     246-47    (1985),   or   by

affirmative litigation conduct, Lapides v. Bd. of Regents of Univ.

Sys. of Ga., 535 U.S. 613, 620 (2002).

               "Congress      may     abrogate       the    States'     constitutionally

secured immunity from suit in federal court only by making its

intention unmistakably clear in the language of the statute."

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (internal

quotation marks omitted) (quoting Dellmuth v. Muth, 491 U.S. 223,

228 (1989)).             The provisions of the Medicaid Act upon which

plaintiffs          rely     do   not     contain          anything     approaching     an

"unequivocal[] express[ion]" of an intent to abrogate.8                               Fla.


        8
       Plaintiffs rely principally upon 42 U.S.C. § 1396a(a)(31),
which provides that a State Plan for medical assistance must:
     with respect to services in an intermediate care facility
     for the mentally retarded (where the State plan includes
     medical assistance for such services) provide, with
     respect to each patient receiving such services, for a
     written plan of care, prior to admission to or
     authorization of benefits in such facility, in accordance
     with regulations of the Secretary, and for a regular

                                              -13-
Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527

U.S. 627, 635 (1999) (quoting Seminole Tribe of Fla. v. Florida,

517   U.S.     44,    55   (1996);   see    also    Fla.    Dep't       of     Health   &

Rehabilitative Servs. v. Fla. Nursing Home Ass'n, 450 U.S. 147, 150

(1981)    (per       curiam)   (holding     state   immune       from     suit    where

plaintiffs were seeking retroactive relief for alleged insufficient

Medicaid reimbursement).             Plaintiffs make no argument to the

contrary.

               As to waiver, "[s]tates do not waive their Eleventh

Amendment      immunity     merely    by    participating        in     the    Medicaid

program."       Greenless v. Almond, 277 F.3d 601, 606 n.6 (1st Cir.

2002); see also Edelman, 415 U.S. at 673 ("The mere fact that a

State    participates       in   a   program     through        which    the    Federal

Government provides assistance for the operation by the State of a

system of public aid is not sufficient to establish consent on the

part of the State to be sued in the federal courts.").                        Nor does a

state waive its immunity by "defend[ing] itself" upon being "haled

into federal court as a defendant against its will."                         Consejo de

Salud     de    la     Comunidad     de    la    Playa     de     Ponce,       Inc.     v.

González-Feliciano, 695 F.3d 83, 104 (1st Cir. 2012), cert. denied,

134 S. Ct. 54 (2013).          Plaintiffs' claim for damages is barred by

the Eleventh Amendment.


        program of independent professional review (including
        medical evaluation) which shall periodically review his
        need for such services[.]

                                          -14-
                                 III.

          We   remand   this   case   to   the   district   court   with

instructions to dismiss plaintiffs' claim for damages as barred by

the Eleventh Amendment and to dismiss plaintiffs' claims for

declaratory and injunctive relief as moot.9      No costs are awarded.




     9
        While this appeal was pending, the district court denied,
on futility grounds, plaintiffs' motion to file a second amended
complaint.

                                 -15-
