                                                                           FILED
                           NOT FOR PUBLICATION                             APR 15 2014

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SHARON NEWTON-NATIONS,                           No. 12-16152

              Plaintiff,                         D.C. No. 2:03-cv-02506-ROS

  And
                                                 MEMORANDUM*
DONALD MCCANTS and NAHRIN
SHAMOON,

              Plaintiffs - Appellants,

  v.

THOMAS BETLACH, Director of the
Arizona Health Care Containment System
and KATHLEEN SEBELIUS, Secretary of
the United States Department of Human
Services, in their official capacities,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted April 10, 2014**
                               San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, Senior District
Judge.***

      Plaintiffs are a certified class of residents of Arizona and enrollees in

Arizona’s state Medicaid Program, Arizona Health Care Cost Containment System

(“AHCCCS”), who appeal the district court’s decision granting Defendants-

Appellees’ motion to dismiss their claims as moot. Plaintiffs originally challenged

the approval of increased patient copayments in an Arizona Medicaid

demonstration project that provided healthcare benefits to individuals not

otherwise covered by Arizona’s Medicaid plan.

      It is a well-settled that under Article III of the Constitution a federal court’s

jurisdiction is limited to live cases and controversies. U.S. Const. art. III, § 2, cl. 1.

In order for a federal court to exercise jurisdiction over a claim, “a litigant must

have suffered, or be threatened with, an actual injury traceable to the defendant and

likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank

Corp., 494 U.S. 472, 477 (1990). The Arizona Medicaid demonstration program at


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Kevin Thomas Duffy, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.

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issue and its corresponding administrative record expired on October 21, 2011,

and, as such, this Court is unable to grant effective relief in this appeal because the

challenged administrative decision and its corresponding administrative record are

no longer in effect. See generally Grand Canyon Trust v. U.S. Bureau of

Reclamation, 691 F.3d 1008, 1017 (9th Cir. 2012). Therefore, all claims stemming

from that program and its administrative record are moot.

       This is not a situation “capable of repetition, yet evading review.” This

court recognizes that while “the mootness doctrine generally bars claims

challenging an action that has already taken place, there is an exception for claims

which ‘may be repeated and yet evade review.’” Nw. Res. Info. Ctr., Inc. v. Nat’l

Marine Fisheries Serv., 56 F.3d 1060, 1070 (9th Cir. 1995) (quoting Alaska Fish &

Wildlife Fed’n v. Dunkle, 829 F.2d 933, 939 (9th Cir.1987)). To qualify for this

exception, “the injury suffered must be of a type inherently limited in duration

such that it is likely always to become moot before federal court litigation is

completed. Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir.

2007). As a general matter, agency decisions fall within the “capable of repetition”

exception to the mootness doctrine if i) the duration of the challenged action is too

short to allow full litigation before it ceases, and ii) there is a reasonable

expectation that the complaining party will be subject to the same action again.


                                            3
Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992). This appeal

fails to meet either of these requirements. First, Plaintiffs’ claims fail to satisfy the

durational requirement needed to qualify for this exception. This court has

consistently held that “an issue that ‘evades review’ is one which, in its regular

course, resolves itself without allowing sufficient time for appellate review.”

Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173–74 (9th Cir. 2002).

Plaintiffs had ample time to fully litigate these issues, and they did just that.

Plaintiffs’ claims do not evade review because they have been reviewed several

times and by several courts. Second, there is no reasonable expectation that

Plaintiffs will be subject to this same action again. It is unlikely, if not entirely

impossible, that this dispute over the sufficiency and development of the

administrative record accompanying Arizona’s prior demonstration project will

arise again because that program has expired and was replaced by a new

demonstration project with a new administrative record. Ultimately, Plaintiffs

cannot demonstrate that the facts on appeal fall within the narrow “capable of

repetition” exception to the mootness doctrine.

      This case is moot because the challenged agency decision and administrative

record are now inoperative and a new administrative record supports the approval




                                            4
of the subsequent demonstration project and the corresponding increased

copayments. Accordingly, Plaintiffs’ appeal is moot and is hereby DISMISSED.




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