     Case: 12-10010    Document: 00512022985         Page: 1     Date Filed: 10/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                         October 17, 2012

                                      No. 12-10010                        Lyle W. Cayce
                                                                               Clerk

RANDALL D. WOLCOTT, M.D., P.A.,

                                                  Plaintiff - Appellant
v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary of Health and
Human Services of the United States; TRAILBLAZER HEALTH
ENTERPRISES LLC,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:09-CV-195


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Randall D. Wolcott, M.D., P.A., filed a complaint seeking a writ of
mandamus ordering the Secretary of Health and Human Services and a
Medicare payment administrator to process and pay allegedly outstanding
claims due Wolcott for services it provided to Medicare beneficiaries. After
finding that Wolcott failed to establish a right to mandamus relief because the


       *
        Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5th
Circuit Rule 47.5.4.
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                                    No. 12-10010

claims underlying its complaint were moot, the district court entered summary
judgment against Wolcott. For the reasons discussed below, we AFFIRM.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff-Appellant Randall D. Wolcott, M.D., P.A. (“Wolcott”), is a Texas-
based professional association that provides wound-care services, including
debridement, to Medicare beneficiaries.1 Defendant-Appellee Kathleen Sebelius,
in her official capacity as Secretary of the United States Department of Health
and Human Services (the “Secretary”), administers the federal Medicare
program.       Defendant-Appellee       TrailBlazer     Health     Enterprises     LLC
(“TrailBlazer”) is a limited liability company that contracts with the Department
of Health and Human Services to process and pay Medicare benefits in Texas.
      On September 3, 2009, Wolcott filed a seven-count complaint against the
defendants seeking mandamus relief in connection with certain claims Wolcott
submitted for reimbursement as a Medicare service provider. As alleged in the
complaint, from March 2008 to June 2009, the defendants denied “virtually 100
percent” of Wolcott’s debridement claims, worth “a total value of $700,000.”
Though Wolcott successfully appealed each of these claims through the Medicare
administrative appeals process, Wolcott alleged that the defendants nevertheless
re-denied successfully appealed claims and refused to pay it for valid claims.
      In response, the defendants moved to dismiss the complaint, arguing that
the district court lacked subject matter jurisdiction over Wolcott’s claims and
that Wolcott had failed to plead claims upon which mandamus relief could be
granted. On February 26, 2010, the district court granted the motion and
dismissed Wolcott’s complaint in its entirety. Wolcott appealed to this court the
decision on five of the seven counts. On appeal, this court affirmed the district



      1
         Debridement is “the surgical removal of lacerated, devitalized, or contaminated
tissue.” Webster’s Third New International Dictionary 582 (1963).

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court’s judgment as to four counts, but reversed and remanded as to one (“Count
I”). Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757 (5th Cir. 2011).
       In Count I, which forms the primary basis of the current appeal, Wolcott
seeks an order in mandamus directing the defendants to pay it for all claims it
previously successfully appealed via the administrative appeals process. In
explaining why dismissal of Count I was improper at the time of Wolcott’s first
appeal, this court held that subject matter jurisdiction then existed for that
claim, pursuant to the Mandamus and Venue Act, because Wolcott “ask[ed] the
district court to order the defendants to complete affirmative actions to fulfill
their allegedly nondiscretionary duties under the law.”2 Id. at 766. Next, the
court explained that, at that time, Wolcott had stated a claim for mandamus
relief under Count I by sufficiently pleading that it “ha[d] a clear right to relief,
that the defendants owe[d] a non-discretionary duty to issue payment to Wolcott
for appealed claims finally decided in Wolcott’s favor, and that no adequate
alternative remedies exist[ed].” Id. at 771. This claim was supported, the court
highlighted, by “a fully favorable decision by an administrative law judge (‘ALJ’),
dated June 23, 2009, which reversed the denial of ninety-five debridement
claims for services rendered in April and May 2008 and concluded that ‘the
provider is entitled to Medicare payment for services rendered in every case.’”
Id. at 768.3


       2
        Section 1361 of the Mandamus and Venue Act provides that “[t]he district court shall
have original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
28 U.S.C. § 1361. Of note, the Wolcott court also explained, contrary to the defendants’
argument in that case, that relief under 28 U.S.C. § 1361 was not precluded by the Medicare
Act. 635 F.3d at 763–66.
       3
        The record reflects some disagreement between the parties as to the actual date of
this ALJ decision, with some documents reflecting the date of June 23, 2009 and others
showing the date of June 24, 2009. The explanation for this discrepancy seems to be that the
order, originally issued on June 23, 2009, was amended on June 24, 2009 to include an
appendix that was apparently inadvertently omitted from the June 23, 2009 decision. To

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       Presumably because the sole issue still in contention on remand was
whether payment had been made on the Medicare claims underlying Count I,
the district court entered the following order on October 7, 2011:
       If the relief requested in Count I has become moot since the filing of
       Plaintiff’s Complaint, the parties should notify the Court promptly.
       In the event a dispute remains, motions for summary judgment on
       Count I should be filed on or before 3:00 p.m. on November 4, 2011,
       with any responses due 21 days after the filing of the motions.
Despite the district court’s explicit order to do so, Wolcott chose not to file a
summary judgment motion. Instead, on the day that motion was due, it filed:
(1) a motion for, and memorandum in support of, the issuance of a scheduling
order, and (2) a motion and supporting appendix for leave to file a first amended
complaint, which Wolcott asserted would cure the defect in one of the previously
dismissed claims. In neither of these filings did Wolcott expressly discuss the
continued vitality of the Medicare claims underlying Count I.
       The defendants, on the other hand, complied with the district court’s order,
filing their summary judgment motion on November 4, 2012. In that motion, the
defendants argued, inter alia, that Wolcott failed to demonstrate a right to
mandamus relief because the Medicare claims relating to Count I, as reflected
in the June 23, 2009 ALJ decision, had already been paid, and Wolcott’s
mandamus claim was therefore moot.               To substantiate this assertion, the
defendants attached to their motion: (1) an affidavit in which a TrailBlazer
employee stated that TrailBlazer had paid Wolcott in accordance with the June
23, 2009 ALJ decision, and (2) a spreadsheet setting out the claim number and
payment information for each of the payments.4


maintain consistency with Wolcott, and because the substantive aspects of the decision were
addressed in the June 23, 2009 decision, this court will use that date when referring to the
decision.
       4
        Notably, that spreadsheet purportedly shows not only payments made in connection
with the June 23, 2009 ALJ decision, but also payments made for claims not required by that

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                                  No. 12-10010

       On November 18, 2011, the defendants filed an unopposed motion for an
extension until November 28, 2011 to respond to Wolcott’s pending motions.
Wolcott likewise filed an unopposed motion on November 18, 2011, requesting
an extension until December 5, 2011 to respond to the defendants’ summary
judgment motion. The district court granted each motion.
       On November 28, 2011, the defendants filed a brief opposing Wolcott’s
motions for issuance of a scheduling order and leave to amend its complaint. As
to the former, the defendants asserted that there was no need for a scheduling
order because, as they had argued in their summary judgment motion, the
Medicare claims at issue in Count I already had been paid, thus mooting
Wolcott’s claim for mandamus relief. As to Wolcott’s motion for leave to amend,
the defendants asserted that Wolcott’s proposed amendment would prejudice the
defendants, would not cure the defect that had caused the previous dismissal of
the claim at issue, and would be futile insofar as it would not survive a motion
to dismiss.
       Without waiting for Wolcott’s response to the defendants’ summary
judgment motion, the district court entered summary judgment against Wolcott
on December 1, 2011—four days before Wolcott’s response was due. In its order,
the district court ruled that Count I was moot because the defendants had
provided uncontroverted evidence that they had paid the claims covered by the
June 23, 2009 ALJ decision. The court also denied Wolcott’s motion for leave to
amend, on the ground that the amendment would not cure the defect in the
previously dismissed claim.
       Wolcott timely appeals, claiming that the district court erred in entering
summary judgment against it. In particular, Wolcott argues that the court
deprived it of its due process rights to notice and a meaningful opportunity to be



decision.

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                                  No. 12-10010

heard. Wolcott also argues that the district court erroneously denied its motion
for leave to amend.
                         II. STANDARD OF REVIEW
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Khan v. Normand, 683 F.3d 192, 194 (5th Cir.
2012). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A factual dispute is ‘genuine,’ if the
evidence is such that a reasonable [trier of fact] could return a verdict for the
nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). “After
giving notice and a reasonable time to respond, the court may . . . consider
summary judgment on its own after identifying for the parties material facts
that may not be genuinely in dispute.” Fed. R. Civ. P. 56(f); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely
acknowledged to possess the power to enter summary judgments sua sponte, so
long as the losing party was on notice that she had to come forward with all her
evidence.”).
                               III. DISCUSSION
      On appeal, Wolcott argues that the district court violated its right to due
process by “fail[ing] to give Wolcott notice that [the court] was about to enter
summary judgment against it.” We disagree.
      A.       Notice and Opportunity
      In the summary judgment context, “[t]his court has explained that strict
enforcement of the notice requirement is necessary because summary judgment
is a final adjudication on the merits.” Powell v. United States, 849 F.2d 1576,
1579 (5th Cir. 1988). Accordingly, providing notice in connection with summary
judgment “is not an unimportant technicality,” but rather gives the opposing



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                                  No. 12-10010

party an opportunity to contest entry of summary judgment against it. Hanson
v. Polk Cnty. Land, Inc., 608 F.2d 129, 131 (5th Cir. 1979).
      Relying on these principles, Wolcott cites to Powell and New York Life
Insurance Co. v. Brown, 84 F.3d 137 (5th Cir. 1996), to support its argument
that it was denied notice and a meaningful opportunity to be heard. In Powell,
this court considered the propriety of a district court’s sua sponte entry of
summary judgment against taxpayers who were seeking a federal income tax
refund. 849 F.2d at 1577. The record revealed that “the district court judge first
gave plaintiffs notice that he might enter summary judgment” against them just
hours before actually doing so. Id. Given the importance of providing adequate
process at the summary judgment stage, we explained that because “a summary
judgment forecloses any future litigation of a case[,] the district court must give
proper notice to insure that the nonmoving party had the opportunity to make
every possible factual and legal argument.” Id. We found that the few hours’
notice the taxpayers received “was surely not sufficient time to allow [their]
counsel to submit all of its legal and factual arguments.” Id. at 1579–80.
Accordingly, we reversed the district court’s judgment. Id. at 1582.
      Wolcott also cites to Brown, in which we stated that “[w]ithout notice of an
impending grant of summary judgment, a defendant has no opportunity to be
heard . . . [and is] denied due process of law.” 84 F.3d at 143. In Brown, the
party challenging entry of summary judgment against it had not received notice
of the impending judgment because the district clerk had mailed “the notice to
an address it knew from its own documents to be invalid.”             Id. at 142.
Acknowledging that “[u]nder our system of justice, the opportunity to be heard
is the most fundamental requirement,” we vacated the district court’s summary
judgment order. Id. at 143.
      The authority Wolcott offers undoubtedly evidences the necessity of
providing litigants with notice of impending entries of summary judgment. See

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Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 79 (5th Cir. 1992) (“We encourage—we
require—district courts to give parties full notice of a possible summary
judgment against them; we will reverse such a judgment when the court fails to
do so.”). Nonetheless, the cases Wolcott cites are distinguishable from the
situation presented here. First, unlike in Powell, where the plaintiffs had only
a few hours’ notice that the court was considering summary judgment, Wolcott
had nearly two months notice here—from October 7, 2011, when the court
ordered the parties to submit summary judgment motions, until December 1,
2011, when the court entered summary judgment.5 Second, unlike in either
Powell or Brown, the district court here explicitly ordered the parties to submit
summary judgment motions by a certain date. In that order, in accordance with
Rule 56(f), the court “identif[ied] for the parties material facts that may not
[have been] genuinely in dispute,” by stating that the parties were to “notify the
Court promptly” “[i]f the relief requested in Count I has become moot since the
filing of Plaintiff’s Complaint.” See Fed. R. Civ. P. 56(f). Alternatively, the order
stated that the parties should file summary judgment motions “[i]n the event
a dispute remains.”
       The district court thus put Wolcott on notice that it was contemplating
summary judgment. Moreover, by directing each party to submit a summary
judgment motion, and by giving it a reasonable time to do so, the court also
provided Wolcott with the opportunity “to submit all of its legal and factual
arguments.” Powell, 849 F.2d at 1580. That Wolcott failed to take advantage
of that opportunity does not constitute judicial error.
       B.     Establishing an Entitlement to Mandamus Relief




       5
        Furthermore, in contrast to the current version of Rule 56, see Fed. R. Civ. P. 56(f),
the version of that rule in effect when Powell was decided did “not speak to summary
judgment on the court’s own motion.” Powell, 849 F.2d at 1578.

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      Wolcott has also failed to satisfy the burden it carried in seeking
mandamus relief. Mandamus jurisdiction in federal courts is codified by 28
U.S.C. § 1361, which provides that “[t]he district court shall have original
jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to
the plaintiff.” Mandamus is, however, “an extraordinary remedy.” Davis v.
Fechtel, 150 F.3d 486, 487 (5th Cir. 1998). “Before mandamus is proper, three
elements must generally co-exist. A plaintiff must show a clear right to the
relief sought, a clear duty by the defendant to do the particular act, and that no
other adequate remedy is available.” Green v. Heckler, 742 F.2d 237, 241 (5th
Cir. 1984). In expounding upon these requirements, we have explained that
mandamus is proper “only when the plaintiff’s claim is clear and certain and the
duty of the officer is ministerial and so plainly prescribed as to be free from
doubt.” Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992) (quoting Nova
Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983)) (internal quotation
omitted).   Thus, the party seeking mandamus bears a “heavy burden” of
establishing its entitlement to such extraordinary relief.      Dresser v. Ohio
Hempery, Inc., 122 F. App’x 749, 755 (5th Cir. 2004) (unpublished).
      Given the extraordinary nature of mandamus relief, and Wolcott’s burden
of establishing its entitlement to such relief, Wolcott was continually on notice
that it had to provide sufficient evidence to satisfy the mandamus standard. In
particular, Wolcott was aware that, to demonstrate a right to a writ of
mandamus, it was required to establish its clear right to relief and the
defendants’ clear duty to provide that relief. Nevertheless, after remand from
its previous appeal, Wolcott failed to show its entitlement to such an
extraordinary remedy.
      In fact, after remand, Wolcott provided nothing to the district court to
support its allegation that successfully appealed Medicare claims still remained

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                                      No. 12-10010

unpaid by the defendants. While the Wolcott court had stated that Count I
initially was supported by the fully favorable June 23, 2009 ALJ decision, the
defendants’ summary judgment motion—filed in response to the district court’s
October 7, 2011 order—included evidence demonstrating that all claims subject
to that decision already had been paid. Wolcott presented nothing to the district
court that challenged this evidence. Moreover, although Wolcott asserts that the
claims addressed in the June 23, 2009 ALJ decision represented only an
“example” set of the claims it purported to assert under Count I, Wolcott offered
no evidence after remand of a right to other payments beyond those discussed
in that decision.6 In failing to provide such evidence, Wolcott also failed to carry
its burden—as required in a mandamus action—of demonstrating that its right
to relief was clear and that the duty of the defendants was so plainly prescribed
as to be free from doubt. See Giddings, 979 F.2d at 1108.
       Of course, Wolcott argues that it failed to meet this burden only because
it was denied an opportunity to oppose the defendants’ summary judgment
motion and to introduce evidence it may have had of other unpaid Medicare
claims.    As we have discussed, however, Wolcott ignores that it had the
affirmative obligation to demonstrate its right to mandamus relief. In ordering
the parties to file summary judgment motions, the district court provided
Wolcott the opportunity to satisfy that obligation by introducing evidence of its
entitlement to mandamus relief. Again, however, when given this opportunity,
Wolcott failed to seize it.
       Wolcott now suggests that it would have been improper for it to file a
summary judgment motion because it believed there was a genuine dispute as


       6
        Although Wolcott’s complaint included by attachment other favorable ALJ decisions,
those decisions were evidently introduced to support other counts that were eventually
dismissed by this court in Wolcott. Wolcott’s counsel conceded during oral arguments in this
case that the only evidence in the record related to Count I was the June 23, 2009 ALJ
decision.

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to whether the claims at issue actually had been paid. Accordingly, Wolcott
asserts that filing a summary judgment motion while entertaining this belief
would have been a violation of Rule 11, which requires parties to certify that
motions submitted to a court are “warranted by existing law” and contain
“factual contentions [that] have evidentiary support.” Fed. R. Civ. P. 11(b).7
       In advancing this argument, Wolcott appears to take issue with the
district court’s order requiring the parties to file summary judgment motions.
Nevertheless, when the district court first entered that order, Wolcott did not
object to it. Further, it is well settled that district courts have the inherent
authority “to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31
(1962). While that authority may not be exercised “where the [Rules of Civil
Procedure] directly mandate a specific procedure to the exclusion of others,” such
was not the case here. Natural Gas Pipeline Co. of Am. v. Energy Gathering,
Inc., 2 F.3d 1397, 1408 (5th Cir. 1993) (quoting Landau & Cleary, Ltd. v. Hribar
Trucking, Inc., 867 F.2d 996, 1002 (7th Cir. 1989)). Moreover, to the extent
Wolcott believed the district court improperly exercised its docket management
authority by ordering the parties to file summary judgment motions, or by later
granting the defendants’ motion before Wolcott was required to respond to it, the
rules provide various mechanisms by which Wolcott could have asserted its
position. Rule 59(e), for example, allows a party to file a motion to alter or
amend a judgment, while Rule 60(b) permits a party to seek relief from a
judgment or order. Fed. R. Civ. P. 59(e), 60(b). Notwithstanding these avenues
by which Wolcott could have challenged any perceived overreach in the court’s



       7
        Wolcott first raised this argument on appeal, and, even then, only in its reply brief.
This court generally does “not consider arguments raised for the first time on appeal,” In re
Paige, 610 F.3d 865, 871 (5th Cir. 2010), though for the reasons noted, Wolcott’s argument is,
in any event, unavailing.

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orders, or otherwise could have demonstrated its entitlement to mandamus
relief, Wolcott failed to file any post-judgment motions in the district court.
       Finally, Wolcott alternatively frames the alleged due process violation as
one caused by the district court’s failure to give Wolcott time to respond to the
defendants’ summary judgment motion. As we have explained, however, in
making this argument, Wolcott ignores that the district court may enter
summary judgment sua sponte and that, in seeking a writ of mandamus, Wolcott
had an affirmative duty to show its entitlement to the extraordinary remedy of
mandamus relief. Despite numerous opportunities to do so, Wolcott failed to
demonstrate that any Medicare claims associated with Count I remained unpaid
by the defendants following remand.
       As the district court held, because Count I constituted the sole issue still
in contention after remand, Wolcott’s failure to demonstrate a live case or
controversy associated with that count rendered moot the only remaining aspect
of the case.8 See Deakins v. Monaghan, 484 U.S. 193, 199 (1988) (“Article III of
the Constitution limits federal courts to the adjudication of actual, ongoing
controversies between litigants.”); Goldin v. Bartholow, 166 F.3d 710, 717 (5th
Cir. 1999) (“A moot case presents no Article III case or controversy. . . .”).
Accordingly, the district court did not err in granting summary judgment in the
defendants’ favor.
                                   IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.

       8
         As we have noted, Wolcott filed a motion for leave to amend and now argues that the
district court erred in denying it. We need not address that issue. “[T]he mandate rule
compels compliance on remand with the dictates of a superior court and forecloses relitigation
of issues expressly or impliedly decided by the appellate court.” United States v. Lee, 358 F.3d
315, 321 (5th Cir. 2004). As the district court explained in its order, Wolcott’s proposed
amendment was functionally no different from the claim already dismissed, which dismissal
we affirmed in Wolcott. The court thus concluded that “for the same reasons already
articulated [in Wolcott], it would be improper to allow Plaintiff’s proposed amended pleading.”
We agree.

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