K.W. Ex Rel. D.W. v. Armstrong

Opinion by Judge MILAN D. SMITH, Jr.; Partial Concurrence and Partial Dissent by Judge CLIFTON.

OPINION

Richard Armstrong, in his official capacity as Director of the Idaho Department of Health and Welfare, Lisa Hettinger, in her *966 official capacity as Medicaid Administrator of the Idaho Department of Health and Welfare, and the Idaho Department of Health and Welfare (collectively, Department), appeal from the district court’s order expanding a preliminary injunction forbidding the Department from decreasing the individual budgets of a class of participants in and applicants to Idaho’s Developmental Disabilities Waiver program (DD Waiver program) without adequate notice. The Department also seeks review of the district court’s order denying its motion to approve a proposed Budget Notice to the class.

On appeal, the Department argues that the Plaintiffs’ claims are not ripe because calculating a lower individual budget does not trigger the fair hearing provisions of the Medicaid Act, 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.206 , or deprive a participant of property under the Due Process Clause, U.S. Const, amend. XIV, § 1. The Department also argues that the Plaintiffs…

concurring in part and dissenting in part:

I fully concur in Parts I — III of the majority opinion. I regret, however, that I must dissent from Part IV, in which the majority concludes that we lack pendant jurisdiction over the district court’s denial of the Department’s motion to approve a proposed revised notice to program participants. It is clear to me that we do have jurisdiction and should address that issue on the merits.

I agree that we would not have jurisdiction over an appeal from the denial that motion .if it were standing by itself, unless, of course, it was brought as an interlocutory appeal under 28 U.S.C. § 1292 (b). But it is not standing by itself. It comes to us because it is directly connected to the appeal by the Department of the district court’s expansion of the preliminary injunction, over which the majority opinion acknowledges our jurisdiction.

The district court recognized the connection between the two motions. It dealt with both in the same memorandum decision and order. It expressly noted in that order that before it could deal with the motion to extend the preliminary injunction, it was “require[dj” to address the Department’s motion to approve…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

K. W., by his next friend D.W.; C. No. 14-35296 M.; C. L.; A. L., through her guardian E.B.; K. S., through his D.C. Nos. next friend S.S.; M. S., through his 1:12-cv-00022- guardian V.S.; N. R., through her BLW next friend G.R.; T. F., through her 3:12-cv-00058- guardian R.F.; T. M., through his BLW guardian T.W.; B. B., through his next friend D.B.; R. P., through her guardian T.P.; M. S., through her OPINION guardian D.S.; E. L.; TOBY SCHULTZ, by and through his legal guardian Jana Schultz on behalf of himself and all others similarly situated; BREANNA MULLIC, by and through her legal guardian Brenda Passmore; CALEB HALL, by and through his next friend Melanie Hall, Plaintiffs-Appellees,

v.

RICHARD ARMSTRONG, in his official capacity as Director of the Idaho Department of Health and Welfare; LISA HETTINGER, in her official capacity as Medicaid Administrator of the Idaho Department of Health and Welfare; IDAHO DEPARTMENT OF HEALTH AND WELFARE, a department of the State of Idaho, Defendants-Appellants.

Appeal from the United States District…