                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 01 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ANNA HABETLER,                                   No. 14-56422

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01390-CAB-
                                                 MDD
 v.

SYLVIA MATHEWS BURWELL, et al.,                  MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                        Argued and Submitted June 10, 2016
                               Pasadena, California

Before: KOZINSKI and WARDLAW, Circuit Judges, and KORMAN,** District
Judge.

      Anna Habetler filed a lawsuit seeking declaratory and injunctive relief in

which she challenged a Medicare contractor’s local coverage determination. The

challenge came after the administrative review process was exhausted. Subsequent

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
to filing her complaint in the district court, the local coverage determination was

retired and thus was no longer in place. Because the parties failed to call this to the

attention of the district judge, she was unaware of the fact that the dispute was

mooted and that she was without jurisdiction. The district judge therefore went on

to grant the defendants-appellees’ motion for summary judgment. Indeed, the case

was briefed by the parties without any mention of fact that the local coverage

determination was no longer in place.

      We raised the issue of mootness on our own motion and we now conclude

that, because the local coverage determination has been retired, “there is nothing

left to enjoin.” See Arc of Cal. v. Douglas, 757 F.3d 975, 982 (9th Cir. 2014). A

declaration that the local coverage determination would be invalid were it still in

place would be an advisory opinion. See Ashcroft v. Mattis, 431 U.S. 171, 172

(1977) (per curiam). Because we cannot “grant ‘any effectual relief,’” the case is

moot. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)

(quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

      This case does not fall within the mootness exception reserved for cases that

are capable of repetition yet evading review. When a Medicare contractor retires a

local coverage determination under review by an administrative law judge, it “has

the same effect as a decision” by an administrative law judge finding that the local


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coverage determination is “invalid under the reasonableness standard.” 42 C.F.R.

§§ 426.420(a), 426.460(b); see also id. §§ 426.478, 426.488(b). And, once a local

coverage determination is “found to be unreasonable,” the contractor cannot

reinstate it “unless the contractor has a different basis (such as additional evidence)

than what the ALJ evaluated.” Id. § 426.463. Although the contractor here did not

retire the local coverage determination until after Habetler filed her lawsuit—rather

than during the agency review process to which the above regulations apply—these

regulations make clear that a contractor may not simply retire then reinstate a local

coverage determination and thus evade review. Moreover, any future local

coverage determination regarding transfer factor therapy would be subject to the

same administrative review process as the one utilized here, the final result of

which Habetler could likewise challenge in federal court.

      Because the retirement of the challenged local coverage determination on

January 1, 2012, mooted Habetler’s lawsuit, the case was moot when the district

court granted the defendants-appellees summary judgment on July 1, 2014. Thus,

this appeal is dismissed as moot, and the judgment and order of the district court

are vacated. The district court shall dismiss this action upon remand.

DISMISSED AS MOOT.




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