 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FILED

DEC 16 2019

 

THE DISTRICT OF COLUMBIA,

ELSA MALDONADO, et al., ) Clerk, U.S. District & Bankruptcy
) Courts for the District of Columbia
Plaintiffs, )
)
v. ) Civil Case No. 10-1511 (RJL)
)
)
)

Defendant. :
MEMORANDUM OPINION

December lo 2019 [# 114]

On September 7, 2010, Medicaid recipients brought this suit against the District of
Columbia (“the District”), alleging the District failed to provide them due process when
denying Medicaid coverage for certain prescription medications. See Compl. [Dkt. # 3].
After two amended complaints, four motions to dismiss, and two appeals to the D.C.
Circuit, plaintiffs filed a motion for a preliminary injunction on September 24, 2019, nine
years after initiating this lawsuit. See Pls.” Mem. in Support of Mot. for a Prelim.
Injunction (“Pls.’ Mot.”) [Dkt. # 114-1]. They seek a preliminary injunction compelling
the District to provide individualized notice to persons denied Medicaid coverage for those
prescriptions within sixty days. Jd. at 2. The District moved to stay briefing on plaintiffs’
motion, which I denied on October 10, 2019. I ordered the parties to complete briefing on
plaintiffs’ motion by October 23, 2019, and I held oral argument on November 1, 2019.

Upon consideration of the parties’ briefing and argument, the relevant law, the entire

 

 

 
 

 

record, and for the reasons stated below, plaintiffs’ motion for a preliminary injunction is
DENIED.
BACKGROUND
I. Factual Background

The underlying facts of this case have been set forth at great length in prior opinions
of this Court and our Circuit Court, and I will not belabor them again here. See N.B. v.
Dist. of Columbia, 800 F. Supp. 2d 51, 53-54 (D.D.C. 2011); N.B. ex rel. Peacock v. Dist.
of Columbia, 682 F.3d 77, 80-81 (D.C. Cir. 2012); N.B. v. Dist. of Columbia, 34 F. Supp.
3d 146, 148-50 (D.D.C. 2014); N.B ex rel. Peacock v. Dist. of Columbia, 794 F.3d 31, 35—
37 (D.C. Cir. 2015); N.B. v. District of Columbia, 244 F. Supp. 3d 176, 177-79 (D.D.C.
2017). As relevant to plaintiffs’ pending motion, the District’s Department of Health Care
Finance (“DHCF”) administers D.C.’s Medicaid program. Second Am. Compl.
(“Compl.”’) § 17 [Dkt. # 98]. Plaintiffs in this case receive Medicaid benefits in the District,
including prescription drug benefits. Jd. § 5-8, 10. They allege that their prescription
coverage has been denied on various occasions, and the District failed to provide “timely
and adequate individualized written notice” of the reason for the denial. Jd. {[] 2-3.

In support of their motion for preliminary injunctive relief, plaintiffs point to
specific issues they have had in filling prescriptions. Plaintiff Elsa Maldonado reports that
she attempted to refill her asthma medication at a District pharmacy in 2013, but the
pharmacy told her that Medicaid did not cover the kind she had been prescribed. Pls.’
Mot., Ex. 13 9/25/18 Maldonado Aff. § 14 [Dkt. # 114-15]. She was thus given a substitute

medication for her asthma. Jd. Maldonado contacted plaintiffs’ counsel as well as her

Ps

 

 

 
 

 

doctor to obtain an override of the pharmacy’s decision. Jd. {| 17, 18. She did not take
the substitute medication. See id. § 19. After her prescribed medication ran out, she sought
treatment from an asthma specialist, who provided her with a temporary supply of the
prescribed medication. Jd.

Plaintiff BR, a severely disabled child, was prescribed antibiotics for strep throat in
March 2018. Pls.’ Mot., Ex. 12 8/8/18 Robertson Aff. §§ 3, 11 [Dkt. # 114-14]. Two
District pharmacies told BR’s parents that her prescription could not be filled because BR’s
Medicaid identification information was incorrect and she was not active in the system. Jd.
§4 14, 16, 19-20. Eventually, BR’s mother spoke to a representative at BR’s Medicaid
managed care organization, who informed her that BR had been issued a new prescription
identification number at the start of the year. Jd. § 24. BR sometimes refuses to eat or
drink when she has a sore throat and, due to the several hours of delay in filling her
prescription, she became dehydrated and was taken to the emergency room. Jd. {J 12, 27.

II. Procedural History

The procedural history of this case runs long. Plaintiffs filed suit in 2010. See
Compl. In 2011, I granted defendants’ motion to dismiss, concluding plaintiffs lacked
Article III standing to assert their claims. N.B. v. Dist. of Columbia, 800 F. Supp. 2d 51,
58 (D.D.C. 2011). Our Circuit Court reversed in 2012. N.B. ex rel. Peacock v. Dist. of
Columbia, 682 F.3d 77, 86 (D.C. Cir. 2012). Plaintiffs amended their complaint on
remand, and the District again moved to dismiss. Am. Compl. [Dkt. # 43]; Mot. to Dismiss
Am. Compl. [Dkt. # 46]. In 2014, I concluded that plaintiffs failed to state claims under

Title XIX or the Fifth Amendment and that I lacked pendent jurisdiction over their D.C.

3

 

 

 
 

 

law claims. N.B. v. Dist. of Columbia, 34 F. Supp. 3d 146, 156, 160 (D.D.C. 2014).
Plaintiffs appealed, and our Circuit affirmed dismissal of the Title XIX claim but reversed
and remanded plaintiffs’ Fifth Amendment claim. NB ex rel. Peacock v. Dist. of Columbia,
794 F.3d 31, 40-44 (D.C. Cir. 2015). On remand, I denied the District’s third motion to
dismiss, holding that plaintiffs stated a claim that they were not provided constitutionally
adequate notice of the reasons for the denial of their prescription claims. N.B. v. District
of Columbia, 244 F. Supp. 3d 176, 183 (D.D.C. 2017).

Eighteen months after my ruling, plaintiffs moved to amend their complaint and to
certify a class. See Mot. to Amend [Dkt. # 79]; Mot. to Certify Class [Dkt. # 80]. One
month later, plaintiffs filed a motion for summary judgment and a permanent injunction or,
in the alternative, a preliminary injunction. Mot. for Summ. J. [Dkt. # 85]. On April 4,
2019, I granted plaintiffs’ motion for leave to file a second amended complaint, and the
District moved to partially dismiss on May 31, 2019. Partial Mot. to Dismiss [Dkt # 102].
Plaintiffs opposed and cross moved for partial summary judgment. Pls.” Mem. in Opp. to
Partial Mot. to Dismiss [Dkt. # 104]; Pls.” Cross Mot. for Summ. J. [Dkt. # 105]. Those
motions became fully briefed on August 2, 2019. On September 24, 2019, plaintiffs filed
the instant motion for preliminary injunctive relief. See Pls.’ Mot.

LEGAL STANDARD

A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008) (citation omitted). Plaintiffs “seeking a

preliminary injunction must establish [1] that [they are] likely to succeed on the merits, [2]

4

 

 

 
 

 

that [they are] likely to suffer irreparable harm in the dioaitt of preliminary relief, [3] that
the balance of equities tips in [their] favor, and [4] that an injunction is in the public
interest.” Jd. at 20. Although these factors “interrelate on a sliding scale, the movant must,
at a minimum, demonstrate that irreparable injury is /ikely in the absence of an injunction.”
Bill Barrett Corp. v. U.S. Dep’t of Interior, 601 F. Supp. 2d 331, 334-35 (D.D.C. 2009)
(internal quotation marks and citations omitted). “A movant’s failure to show any
irreparable harm is... grounds for refusing to issue a preliminary injunction, even if the
other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel
Churches (CFCG) v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
ANALYSIS
I. Irreparable Harm

Plaintiffs must—at a minimum—demonstrate irreparable harm, and I accordingly
address that factor at the outset. Winter, 555 U.S. at 22. Our Circuit “has set a high
standard for irreparable injury.” CFGC, 454 F.3d at 297. First, the injury “must be both
certain and great; it must be actual and not theoretical.” Jd. (internal quotation marks
omitted). In other words, the “moving party must show [t]he injury complained of is of
such imminence that there is a clear and present need for equitable relief to prevent
irreparable harm.” Jd. (internal quotation marks omitted). Second, “the injury must be
beyond remediation,” and “[t]he possibility that adequate compensatory or other corrective
relief will be available at a later date, in the ordinary course of litigation[,] weighs heavily
against a claim of irreparable harm.” Jd. at 297-98 (internal quotation marks omitted).

The alleged harm must be “more than simply irretrievable; it must also be serious in terms

5

 

 

 
 

 

of its effect on the plaintiff.” Air Transp. Ass’n of Am., Inc. v. Exp.-Imp. Bank of the U.S.,
840 F. Supp. 2d 327, 334 (D.D.C. 2012) (internal quotation marks omitted).

As an initial matter, plaintiffs’ extensive delay in seeking a preliminary injunction
weighs heavily against a finding of irreparable harm. See Newdow v. Bush, 355 F. Supp.
2d 265, 292 (D.D.C. 2005) (“An unexcused delay in seeking extraordinary injunctive relief
may be grounds for denial because such delay implies a lack of urgency and irreparable
harm”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (concluding delay
of 44 days in seeking an injunction was “inexcusable”); Mylan Pharms. v. Shalala, 81 F.
Supp. 2d 30, 44 (D.D.C. 2000) (delay of two months “militates against a finding of
irreparable harm’). Plaintiffs initiated this lawsuit nine years ago, and there is no dispute
that they were aware then that the District did not provide the type of individualized notice
that plaintiffs allege is required. See 11/1/19 Prelim. Injunction Hearing Transcript (“Tr.”)
at 11:16 (acknowledging the “harm has not changed”); id. at 12:7-10.!

Plaintiffs counter that their delay is excusable, but unfortunately none of their
arguments is persuasive. They first contend that the seven-year period from September

2010 to March 2017 should not count against them because the District filed multiple

 

' The one precedential case on which Plaintiffs rely is not to the contrary. See Reply in Support
of Mot. for Prelim. Injunction (“Reply”) at 17 [Dkt. # 118] (citing Gordon v. Holder, 632 F.3d 722
(D.C. Cir. 2011)). In that case, the D.C. Circuit concluded the district court erred in denying a
preliminary injunction because the plaintiff filed suit the day before the statute that allegedly
caused him harm went into effect. Jd. at 723, 24. Significantly, the court noted that the motion
was not untimely: plaintiff sought to enjoin the statute before it could legally be enforced. /d. at
724. That is a far cry from the circumstances here, where, according to plaintiffs, the District has
been engaging in unconstitutional conduct for over nine years. Gordon at most stands for the
proposition that delay does not require denial of a motion for a preliminary injunction, id. at 724-
25, and it thus does not foreclose consideration of plaintiffs’ substantial delay here.

6

 

 
 

 

motions to dismiss, which were twice granted and appealed. See Reply at 18 n.6.
According to plaintiffs, it was thus not clear that they had an overwhelming likelihood of
success on the merits until I denied the District’s third motion to dismiss in March 2017.
See id.; Tr. at 8:12-20. But even if briefing on dispositive motions and appeals to our
Circuit Court amounted to excusable delay, plaintiffs sti// refrained from requesting the
extraordinary remedy they now seek for nearly two and a half years after my March 2017
ruling.

Undaunted, plaintiffs also attempt to minimize this lengthy period of delay. They
contend that the delay between March 2017 until July 2019 is excusable because the parties
were engaged in settlement discussions for thirteen months and, after those discussions
were unsuccessful, plaintiffs needed five additional months to prepare their motion for
summary judgment and permanent injunction, which they filed in November 2018. Reply
at 18. They also seem to suggest that their November 2018 motion—which sought
preliminary injunctive relief in the alternative—effectively tolled any delay in filing their
instant motion for a preliminary injunction. See id.; Mot. for Summ. J. I ultimately denied
plaintiffs’ 2018 summary judgment motion without prejudice on July 24, 2019. See
7/24/19 Minute Order.* Thus, in plaintiffs’ view, the only delay that could be counted

against them is the two-month period between my denial of their motion for summary

 

? Plaintiffs had amended their complaint one month before moving for summary judgment, which
prompted the District to file yet another motion to dismiss and all but assured the summary
judgment motion would be stale by the time it was litigated. Mot. to Amend; Partial Mot. to
Dismiss.

 

 

 
 

 

judgment on July 24, 2019, and their filing of the instant motion for a preliminary
injunction on September 24, 2019.

Unfortunately for plaintiffs, that assertion does not withstand scrutiny. Although
plaintiffs moved in the alternative for preliminary injunctive relief in 2018, they displayed
no urgency in pursuing it. Plaintiffs did not request a preliminary injunction hearing (as
required by Local Rule) at the time they filed their motion for summary judgment, nor did
they do so at any time in the eight months that followed. See generally Pl\s.’ Mot.; LCvR
65.1(d) (“On request of the moving party together with a statement of facts which make
expedition essential, a hearing on an application for preliminary injunction shall be set by
the Court no later than 21 days after its filing.”). And five months later, when I granted
plaintiffs leave to amend their complaint, see 4/4/19 Minute Order, they again seemed
content to litigate their case on a routine timetable. Tellingly, plaintiffs proposed a briefing
schedule to govern their pending motions that failed to demonstrate any sense of urgency:
It provided the District thirty days to oppose plaintiffs’ summary judgment motion, and it
further allowed plaintiffs thirty days to reply. Proposed Briefing Schedule [Dkt. #97], Ex.
A at 2. Five months later, plaintiffs filed the instant motion. See Pls.’ Mot. Simply put,
this is not conduct that bespeaks irreparable harm.*? Pub. Citizen Health Research Grp. v.

Acosta, 363 F. Supp. 3d 1, 22 (D.D.C. 2018) (concluding no irreparable harm where

 

> The record also contains other delays that are inconsistent with the sense of urgency required for
the extraordinary remedy plaintiffs seek here. For instance, after the case was remanded from the
D.C. Circuit in 2012, plaintiffs moved for a scheduling order on their motion for class certification,
which I denied on December 10, 2012. See 12/10/12 Minute Order. Following my order, plaintiffs
took no action in this case for seven months—until they filed a motion to amend their complaint
in June 2013. See Mot. to Amend Compl. [Dkt. # 42].

8

 

 

 
 

 

plaintiffs waited over three months after learning that a government agency had taken the
complained-of action and over six weeks after filing their complaint to seek preliminary
relief). To be clear: I do not fault plaintiffs for pursuing any particular litigation strategy,
nor is there anything wrong with plaintiffs proposing reasonable timeframes for briefing.
But, all of that said, plaintiffs’ past litigation positions “strongly discredit[] Plaintiffs’ claim
that they are suffering irreparable harm.” Jd.

Apart from their extended delay, plaintiffs otherwise fail to demonstrate irreparable
harm. They primarily rely on cases in which courts enjoined the defendants’ termination
of coverage or treatment entirely. Pls.’ Mot. at 11-13. That is not the injury plaintiffs
assert here, nor is the actual provision of prescription coverage the relief they seek. See
Compl. {| 1—3; Pls.’ Mot. at 2; Reply at 14. To the contrary, they allege here that
pharmacies are failing to provide them adequate notice as to why a particular prescription
was denied, and they seek an order compelling the District to provide that notice. See Pls.’
Mot. at 1-2. Indeed, I said as much in my last opinion in this case, which plaintiffs have
not appealed: “[P]laintiffs are not facing the total termination of their benefits under a
particular program,” nor are they “prohibit[ed] . . . from obtaining the prescription.” N.B.
v. Dist. of Columbia, 244 F. Supp. 3d at 184 (emphasis added). Plaintiffs remain free to
challenge a denial (albeit with less information than plaintiffs think required). And, in the

case of potential emergencies, the District is required, by its own regulations, to provide a

 
 

 

temporary three-day supply of medication. See id. at 183; District Mem. in Opp’n to Mot.
for Prelim. Injunction at 9 [Dkt. # 116]; Pls.’ Mot. at 2 0.5.
Plaintiffs rely in particular on this Court’s prior opinion in Minney v. U.S. Office of
Pers. Mgmt. (“OPM”), 130 F. Supp. 3d 225, 235 (D.D.C. 2015), in which I concluded the
plaintiff's harm was irreparable. See Pls.’ Mot. at 12-13; Reply at 15. But the claims in
that case stemmed from OPM’s failure to provide adequate notice to the plaintiff, a blind
veteran, that his federal benefits, including medical coverage, would terminate completely
if his earnings exceeded a certain amount. Minney, 130 F. Supp. 3d at 229-30, 235. When
OPM terminated his benefits, he successfully moved for a preliminary injunction. Jd. at
230. To say the least, that case does not control here. Plaintiffs do not face the complete
and total termination of their Medicaid coverage, and they remain able to submit
prescriptions, challenge any denials, and receive temporary supplies of denied
prescriptions.
II. Balance of the Equities and Public Interest
Because I conclude there is no likelihood of irreparable harm, preliminary injunctive
relief is unwarranted, and I need not address the remaining factors. See Acosta, 363 F.
Supp. 3d at 23; GEO Specialty Chems., Inc. v. Husisian, 923 F. Supp. 2d 143, 147 (D.D.C.

2013). I note, however, that the “balance of the equities” and “public interest” factors,

 

4 Plaintiffs assert that despite this requirement, “very few” Medicaid beneficiaries receive the
three-day emergency supply. Pls.’ Mot. at 2.n.5. In support, they cite the District’s response to
their FOIA request, which states that between June 2018 and February 2019, “21 prescriptions
were provided temporary supply for 3 days after being denied for lack of prior authorization.”
Pls.’ Mot., Ex. 2 at 4 [Dkt. # 114-4]. That representation reveals nothing, however, about how
many individuals sought the emergency supply and were denied it.

10

 

 

 
 

 

which “merge when the Government is the opposing party,” Nken v. Holder, 556 U.S. 418,
435 (2009), further weigh against the issuance of a preliminary injunction here. In
evaluating the equities, I must “balance the competing claims of injury and. . . consider
the effect on each party of the granting or withholding of the requested relief.” Winter, 555
U.S. at 24 (internal quotation marks omitted). “When the issuance of a preliminary
injunction, while preventing harm to one party, causes injury to the other, this factor does
not weigh in favor of granting preliminary injunctive relief.” ConverDyn v. Moniz, 68 F.
Supp. 3d 34, 53 (D.D.C. 2014). Here, plaintiffs do not seek to simply enjoin the District
from acting in a certain way or preserve the status quo pending the outcome of litigation.
See Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006). Rather, they seek to
obligate the District to provide individualized notice to individuals denied Medicaid
coverage, a costly enterprise that would no doubt impose significant financial and
administrative burdens on the District. Indeed, plaintiffs’ proposed relief would require
the District to implement that program within sixty days of any order by this Court, which
amounts to a mandate that the District disburse funds it does not have in its current budget.
See 11/4/19 Ltr from C. Risher.

Plaintiffs’ response on the balance-of-the-equities factor is unavailing. They argue
that because the District has undertaken a pilot program in which certain pharmacies did
provide individualized notice, the District is capable of implementing the scheme long-

term. Pls.’ Mot. at 17-18. That may be so, but it certainly does not follow that the balance-

of-the-equities tips in plaintiffs’ favor. The District will still face significant financial

 

 

 
 

burdens if they are ordered to implement a full-scale individualized-notice program within
sixty days, even if they are in theory capable of doing so.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for a preliminary injunction is
DENIED. A separate order consistent with this decision accompanies this Memorandum

Opinion.

l

RICHARD N
United States District Judge

 

 

 

 
