UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAMIE MCGHEE;WILLIAM MCGHEE,
by and through his conservator,
Mamie McGhee,
Plaintiffs-Appellants,

v.
                                                                  No. 97-2588
DIRECTOR, DEPARTMENT OF MENTAL
HEALTH AND HYGIENE; DIRECTOR,
PRINCE GEORGE'S COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-97-673-Y)

Argued: June 4, 1998

Decided: July 7, 1998

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Anthony Isaacson, BOIES & SCHILLER,
L.L.P., Washington, D.C., for Appellants. John Francis Lessner,
Assistant Attorney General, Baltimore, Maryland, for Appellees. ON
BRIEF: Ron M. Landsman, Bethesda, Maryland; Bruce Vignery,
AMERICAN ASSOCIATION OF RETIRED PERSONS, Washing-
ton, D.C., for Appellants. J. Joseph Curran, Jr., Attorney General of
Maryland, Elizabeth M. Kameen, Assistant Attorney General, Balti-
more, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff Mamie McGhee brings this action under 42 U.S.C. § 1983
for declaratory and injunctive relief on her own behalf and as conser-
vator of her husband, William McGhee. She alleges that defendants
Maryland Department of Health and Mental Hygiene and the Prince
George's County Department of Social Services (collectively "the
State") have misapplied federal Medicaid law, namely 42 U.S.C.
§ 1396r-5, which governs the distribution of income between nursing
home residents and their spouses who continue to reside in the com-
munity. She is also pursuing a Maryland state court action for bene-
fits. We remand the case with instructions to stay this action pending
resolution of the state court litigation.

I.

Since July 19, 1993, William McGhee has lived in a nursing home
in Largo, Maryland, while Mamie McGhee has continued to live in
the couple's home in Washington, D.C. Mr. McGhee was granted
Medicaid coverage effective November 1, 1993. In late 1994, Mrs.
McGhee petitioned the Superior Court of the District of Columbia for
an income support award from her husband's retirement benefits to
supplement her own income. On December 2, 1994, that court
awarded her $956.90 a month in support.

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On December 7, 1994, Mrs. McGhee presented the D.C. court
order to the State, requesting that it implement the support order as
a community spouse monthly income allowance ("CSMIA") under
Medicaid. Before the State acted, on January 19, 1995, Mrs. McGhee
initiated administrative review of her request, charging that the State
had delayed considering her request for a CSMIA and seeking a sum-
mary decision in her favor. The State responded with a cross motion
for summary decision, arguing that the D.C. support order was imma-
terial to the State's threshold determination that Mrs. McGhee was
ineligible for a CSMIA. The State's motion was granted on April 17,
1995, and Mrs. McGhee was denied benefits. While the appeal from
this administrative ruling was pending, Mrs. McGhee filed suit in fed-
eral court, which was dismissed without prejudice on ripeness
grounds. On January 17, 1997, the initial state administrative decision
was affirmed.

In the meantime, however, Mrs. McGhee had filed a second appli-
cation for a CSMIA, which was denied by the local department by
Notice dated October 22 and December 30, 1996. On March 6, 1997,
Mrs. McGhee filed the present action in federal district court. On May
30, 1997, a state Administrative Law Judge ("ALJ") affirmed the
decision of the local department denying the CSMIA for the second
time. Mrs. McGhee's appeal of this denial to the Circuit Court of
Maryland has been held in abeyance pending resolution of Mrs.
McGhee's federal case.

The district court dismissed this action as moot in light of the May
30, 1997 ruling by the state ALJ. The court reasoned that the ALJ
"has, in essence, granted McGhee's requested relief by holding that
the local department must consider a foreign court's support order in
calculating a CSMIA once the department has determined the appli-
cant's eligibility for a CSMIA in any amount." Mrs. McGhee now
appeals.

II.

At bottom, this case presents a complex question of the proper
interpretation of Medicaid law, 42 U.S.C. § 1396r-5(d)(5). That sec-
tion provides:

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           If a court has entered an order against an institutionalized
          spouse for monthly income for the support of the commu-
          nity spouse, the community spouse monthly income allow-
          ance for the spouse shall not be less than the amount of the
          monthly income so ordered.

Mrs. McGhee contends this section plainly entitles her to a CSMIA
of $956.90, the amount of the D.C. court support order, irrespective
of the State's system for determining whether she is eligible for any
CSMIA at all. The State insists that this section does not displace its
independent authority to determine Mrs. McGhee's eligibility for a
CSMIA as a threshold matter. Rather the section requires the State to
take the support order into account if, and only if, Mrs. McGhee is
found eligible for a CSMIA in the first place. We agree with the dis-
trict court that this controversy is not presently justiciable, but we dif-
fer in our reasoning for that conclusion.

The district court's mootness ruling appears to have rested on a
misunderstanding of the relief Mrs. McGhee is seeking -- she seeks
a declaration that she is entitled to a CSMIA of $956.90 because of
the D.C. support order whether or not the local department would oth-
erwise deem her eligible for a CSMIA. This relief is yet to be forth-
coming from the state system; the ALJ only said what the State has
said all along, that Mrs. McGhee was "entitled to have the local
department consider the D.C. court's support order .. . if, and when,
the local department first calculates a CSMIA and Recipient's avail-
able income." Mrs. McGhee has appealed this ruling to the Maryland
courts.

Thus, far from being moot, Mrs. McGhee's claim is not yet ripe
enough for us to render any decision on this significant question of
statutory interpretation. As the Supreme Court has just recently reaf-
firmed, "A claim is not ripe for adjudication if it rests upon `contin-
gent future events that may not occur as anticipated, or indeed may
not occur at all.'" Texas v. United States , 118 S. Ct. 1257, 1259
(1998) (quoting Thomas v. Union Carbide Agricultural Prods. Co.,
473 U.S. 568, 581 (1985)) (other citation omitted). Mrs. McGhee's
appeal from the ALJ's decision of May 30, 1997 is still pending in
the Maryland courts. Thus the possibility remains that she will receive
benefits from the State, and the injury of which she complains

                     4
remains contingent upon future events. If Maryland were to find Mrs.
McGhee eligible for benefits for whatever reason, then we would
have no occasion to resolve this case. In such circumstances,
"[f]ederal ripeness doctrine . . . counsels against adjudication of ques-
tions that might be altered or dissolved by further action in the state
court." Crestar Mortgage Corp. v. Peoples Mortgage Co., 818 F.
Supp. 816, 820 n.5 (E.D. Pa. 1993) (citing Charles A. Wright et al.,
Federal Practice and Procedure § 3532.1, at 122 (1984)).

In addition, application of the familiar balancing test for ripeness
indicates that we should not yet render a decision in this case. In eval-
uating the ripeness of claims for judicial review, courts balance "the
`fitness of the issues for judicial decision' and the `hardship to the
parties of withholding court consideration.'" Ohio Forestry Ass'n,
Inc. v. Sierra Club, 118 S. Ct. 1665, 1670 (1998) (quoting Abbot Lab-
oratories v. Gardner, 387 U.S. 136, 149 (1967)). We cannot deny that
delaying consideration of Mrs. McGhee's claim will cause her some
hardship. Of course, she hopes for a favorable outcome in federal
court and would rather have it sooner than later. But the hardship
prong of the ripeness test would be meaningless if injury to the gen-
eral interest in prompt relief, an interest surely shared by all plaintiffs,
constituted the kind of hardship that trumped every other consider-
ation and required immediate resolution of this case.

Two significant factors counsel awaiting state court action in this
case. First, delaying decision will accommodate separation of powers
concerns by providing an opportunity for briefing on the underlying
statutory question from the Health Care Financing Administration
("HCFA"), the federal agency charged with overseeing Medicaid. The
parties to this action both claim that HCFA materials support their --
differing -- interpretations of the statute. Should the merits of this
controversy be presented to the district court again following remand,
the court should solicit HCFA's views on the proper interpretation of
§ 1396r-5(d)(5).

Second, staying any decision pending final state court action is
consistent with the dual federal-state nature of the Medicaid system
and helps preserve the states' important role in administering the pro-
gram. Because Mrs. McGhee has already appealed to the state courts,
basic notions of federalism and comity counsel that the state system

                     5
should first make a final determination of her eligibility for a CSMIA.
These basic principles have special salience in the context of the
Medicaid system. Although Medicaid is governed principally by fed-
eral law, the system is one in which state governments are intimately
involved, having front-line responsibility for its implementation. See
Virginia Hospital Ass'n v. Baliles, 868 F.2d 653, 665 (4th Cir. 1988)
("[T]he Medicaid Act reveal[s] Medicaid to be the subject of both
state and federal concern."), aff'd sub nom. Wilder v. Virginia Hospi-
tal Ass'n, 496 U.S. 498 (1990); cf. also New York State Dept. of
Social Servs. v. Dublino, 413 U.S. 405, 413 (1973) (recognizing state
prerogatives under AFDC's analogous "cooperative federalism"). In
order to avoid any federal-state friction, a stay of Mrs. McGhee's fed-
eral suit pending final action on her state eligibility appeal is appro-
priate.

III.

For the foregoing reasons, the judgment of the district court is
vacated and the case is remanded with instructions to stay the suit
pending the resolution of state proceedings.

VACATED AND REMANDED

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