K.C. Ex Rel. Africa H. v. Shipman ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
K.C., a minor child, by and 
through his mother and next
friend, Africa H.; ALLISON TAYLOR
JOHNS; L.S., a minor child, by and
through his father and next friend,
Ron S.; D.C., a minor child, by
his mother and next friend, Penny
C.,
Plaintiffs-Appellees,
M.S., a minor child, through his
parent and natural guardian,
Rachelle S.,
Intervenor/Plaintiff-Appellee,
 No. 12-1575
v.
PAMELA SHIPMAN, in her official
capacity as Area Director of
Piedmont Behavioral Health Care
Area Mental Health,
Developmental Disabilities, and
Substance Abuse Authority;
PIEDMONT BEHAVIORAL HEALTHCARE
AREA MENTAL HEALTH,
DEVELOPMENTAL DISABILITIES AND
SUBSTANCE ABUSE AUTHORITY, d/b/a
PBH,
Defendants-Appellants,

2 K.C. v. SHIPMAN
and 
LANIER M. CANSLER, in his official
capacity as Secretary of the
Department of Health and Human
Services; ALBERT A. DELIA, in his 
official capacity as Acting
Secretary of the Department of
Health and Human Services,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Louise W. Flanagan, District Judge.
(5:11-cv-00354-FL)
Argued: March 21, 2013
Decided: May 10, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Appeal dismissed by published opinion. Judge Wilkinson
wrote the opinion, in which Judge King and Judge Wynn
joined.
COUNSEL
ARGUED: Wallace Churchill Hollowell, III, NELSON
MULLINS RILEY & SCARBOROUGH, LLP, Raleigh,
North Carolina, for Appellants. Douglas Stuart Sea, LEGAL
SERVICES OF SOUTHERN PIEDMONT, INC., Charlotte,
North Carolina, for Appellees. ON BRIEF: Stephen D. Mar-
K.C. v. SHIPMAN 3
tin, NELSON MULLINS RILEY & SCARBOROUGH, LLP,
Raleigh, North Carolina, for Appellants. Jane Perkins,
NATIONAL HEALTH LAW PROGRAM, Carrboro, North
Carolina; John R. Rittelmeyer, Jennifer L. Bills, Morris
McAdoo, DISABILITY RIGHTS NC, Raleigh, North Caro-
lina, for Appellees.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs are a class of Medicaid beneficiaries who suffer
from severe developmental disabilities. In July 2011, they
sued (1) the Secretary of the North Carolina Department of
Health and Human Services ("the Secretary" or "the
NCDHHS"); (2) Piedmont Behavioral Healthcare ("PBH"), a
local subdivision of the state that manages the delivery of
plaintiffs’ Medicaid services pursuant to a contract with the
NCDHHS; and (3) Pamela Shipman, the director of PBH.
Plaintiffs alleged that defendants violated their rights under
the Medicaid statute and the Due Process Clause of the Four-
teenth Amendment by reducing their health care services
without notice and an opportunity for a hearing. The district
court awarded a preliminary injunction in plaintiffs’ favor,
ordering defendants to reinstate plaintiffs’ services to their
prior levels and enjoining defendants from reducing those ser-
vices without a hearing.
In this appeal, PBH and Shipman challenge the district
court’s entry of the preliminary injunction. Critically, how-
ever, the other defendant in this case—the Secretary of the
NCDHHS — did not join in the appeal. Under the Medicaid
statute and basic principles of justiciability, the Secretary’s
decision dictates the disposition of this case. That is because
a provision in the statute, 42 U.S.C. § 1396a(a)(5), requires
each state to designate a "single State agency" to administer
4 K.C. v. SHIPMAN
its Medicaid plan (here, the NCDHHS) and a regulation pro-
hibits PBH from "chang[ing] or disapprov[ing] any adminis-
trative decision of that agency," 42 C.F.R. § 431.10(e)(3). Yet
PBH seeks to do exactly that through its appeal—to reduce
plaintiffs’ services immediately, notwithstanding the NCDH-
HS’s decision to comply with the injunction. Moreover, the
Secretary’s choice means that any judgment we could enter in
PBH’s favor would not provide PBH the redress it seeks:
because the NCDHHS would remain bound by the prelimi-
nary injunction, so too would PBH as its agent. We therefore
dismiss this appeal.
I.
A.
The case involves the delivery of Medicaid services to a
class of North Carolina Medicaid recipients who suffer from
chronic disabilities such as cerebral palsy, seizure disorders,
mental retardation, and autism. While plaintiffs’ conditions
are serious enough to qualify them for institutional placement,
they are able to live in community environments with the
assistance of certain support services. For example, named
plaintiff D.C. is a teenage Medicaid recipient with severe
autism. Although he is verbally non-communicative and
requires supervision at all times, D.C. is able to live at home
with the help of professionals who teach him basic skills such
as eating, dressing, and personal hygiene, and who provide
temporary care for him when his parents are unavailable.
Plaintiffs receive these services through a type of Medicaid
program known as "managed care Medicaid." In contrast to
traditional fee-for-service Medicaid, where beneficiaries seek
services directly from providers who are then reimbursed by
the state, managed care Medicaid is a model in which the state
contracts with a managed care organization ("MCO"), which
oversees the delivery of services to beneficiaries in exchange
for a fixed, prospective payment from the state for each
K.C. v. SHIPMAN 5
enrollee. See Medicaid Program; Medicaid Managed Care:
New Provisions, 67 Fed. Reg. 40,989, 40,989 (June 14, 2002).
In this case, PBH is the MCO that manages the delivery of
plaintiffs’ Medicaid services, and Shipman is PBH’s director.1
More specifically, PBH is party to a contract with the
NCDHHS under which PBH provides managed care to
roughly 675 disabled individuals, including plaintiffs, as part
of a program known as the North Carolina Innovations
Waiver. The contract requires PBH to provide these enrollees
with a list of certain covered health care services. PBH does
so through a system in which it requires pre-authorization for
non-emergency services like the skill-building and temporary
care provided to plaintiff D.C. To obtain authorization, enroll-
ees and their guardians meet each year with their physicians
and a PBH employee to design an individual support plan
identifying the services that the enrollee needs. The identified
services are then submitted to PBH for approval. Once an
enrollee’s services are authorized, the contract provides that
if PBH reduces or terminates those services, PBH must pro-
vide the enrollee with certain notice and appeal rights
described in 42 C.F.R. §§ 438.400-.424.
As part of its pre-authorization process, PBH sets annual
"base budget" amounts for each enrollee—the maximum level
of funding that is available for certain non-emergency ser-
vices. Prior to 2011, PBH set plaintiffs’ base budget amounts
using a benchmark system that was intended to tailor the
amount of funding an enrollee could receive to his or her
medical needs. In light of increasing service requests and bud-
get shortfalls, however, PBH designed a new system, which
established different funding categories for enrollees based on
factors such as the enrollee’s needs, safety risk, age, and place
of living.
1
For ease of reference, we generally refer to PBH and Shipman collec-
tively as PBH.
6 K.C. v. SHIPMAN
Pursuant to this updated system, PBH sent letters to Inno-
vations Waiver enrollees in March and April of 2011 inform-
ing them of their newly assigned base budget amounts. For
some enrollees—in particular, the five named plaintiffs and
the members of the class eventually certified by the district
court—the letter indicated that their previous base budget
amounts would be reduced. The letter also stated that the new
base budget amounts would be "the maximum amount of base
service funds that can be authorized in your Individual Sup-
port Plan" and that PBH would be in contact to develop their
next plan.
To illustrate, D.C.’s parents received a letter from PBH
informing them that D.C.’s base budget would be reduced
from $47,588.52 to $18,799.60 in graduated steps beginning
on July 1, 2011. The letter contained no information on how
to appeal or challenge the reduced amount. As a result, even
though D.C. was approved on April 21, 2011 to receive
$43,579.52 worth of skill-building and temporary care ser-
vices, D.C.’s mother eventually signed a new plan (under
what she states were threats that PBH would terminate all of
D.C.’s services) reducing D.C.’s services to comply with his
new budget. Under the new plan, D.C.’s services were
reduced by seventy to one hundred hours per month from
their prior levels. In order to maintain D.C.’s services at those
prior levels and to avoid placing him in an institution, D.C.’s
parents paid for his care directly out of their savings.
B.
On July 5, 2011, four Innovations Waiver enrollees filed a
class action against Lanier Cansler, the Secretary of the
NCDHHS;2 PBH; and Shipman. A fifth enrollee, M.S., inter-
2
After then-Governor Beverly Perdue named Albert Delia Acting Secre-
tary of the NCDHHS in 2012, Delia was substituted for Cansler as the
state defendant under Federal Rule of Civil Procedure 25(d). In January
2013, however, Pat McCrory succeeded Perdue as governor and named
Aldona Zofia Wos Secretary of the NCDHHS—making Wos the current
state defendant in the underlying action.
K.C. v. SHIPMAN 7
vened as a plaintiff in December 2011. The plaintiffs (now
appellees) sought preliminary and permanent injunctions rein-
stating their services to previously authorized levels and
enjoining defendants (and their agents) from reducing their
services without complying with the notice and hearing
requirements of the Medicaid statute and the Fourteenth
Amendment.
The district court ruled on plaintiffs’ motion for a prelimi-
nary injunction on March 29, 2012. Because the Medicaid
regulations require an MCO to provide notice and hearing
rights only when it has taken "action," 42 C.F.R.
§ 431.200(b), the court focused its attention on defendants’
argument that the reduction of plaintiffs’ budgets did not
amount to "action" in the first place. The court noted that "ac-
tion" is defined in relevant part as the "reduction, suspension,
or termination of a previously authorized service," id.§ 438.400(b). It then reasoned that PBH took "action" by
reducing the plaintiffs’ authorized service budgets and "com-
municat[ing] to [them] that as of July 2011, they must reduce
or terminate certain services to comply with" those reduced
budgets. The district court thus held that plaintiffs were enti-
tled to the notice and appeal rights provided for by the Medic-
aid statute and the Fourteenth Amendment. The court further
ruled that defendants had failed to comply with those require-
ments and accordingly granted the motion for a preliminary
injunction.
On April 27, 2012, defendants PBH and Shipman filed a
timely notice of their interlocutory appeal of the district
court’s order. The deadline to appeal expired fourteen days
later, see Fed. R. App. P. 4(a)(3), with no notice filed by the
remaining defendant, the Secretary of the NCDHHS.
II.
PBH contends that "the narrow legal question" before us is
"whether the budget communications that PBH sent to [plain-
8 K.C. v. SHIPMAN
tiffs] in March and April 2011 constituted agency ‘action,’ as
that term is defined in 42 C.F.R. § 438.400(b)." Appellants’
Br. 23. But before reaching that question, we must first
address the threshold issue of whether PBH may litigate this
appeal to begin with, given that the NCDHHS has decided not
to. For the reasons that follow, we conclude that the Medicaid
statute and accompanying regulations preclude PBH from
appealing in the absence of the NCDHHS.
A.
We begin with the relevant provision of the Medicaid stat-
ute and its attendant regulations. At the heart of our inquiry
is Congress’ pronouncement that each state must "provide for
the establishment or designation of a single State agency to
administer or to supervise the administration" of its Medicaid
program, 42 U.S.C. § 1396a(a)(5), a command we shall refer
to as the "single state agency requirement." In implementing
this requirement, the U.S. Department of Health and Human
Services has set forth the following regulation:
If other State or local agencies or offices perform
services for the Medicaid agency, they must not have
the authority to change or disapprove any adminis-
trative decision of that agency, or otherwise substi-
tute their judgment for that of the Medicaid agency
with respect to the application of policies, rules, and
regulations issued by the Medicaid agency.
42 C.F.R. § 431.10(e)(3).
As implemented through this rule, the single state agency
requirement reflects two important values: an efficiency ratio-
nale and an accountability rationale. From an efficiency per-
spective, the requirement ensures that final authority to make
the many complex decisions governing a state’s Medicaid
program is vested in one (and only one) agency. The require-
ment thereby avoids the disarray that would result if multiple
K.C. v. SHIPMAN 9
state or even local entities were free to render conflicting
determinations about the rights and obligations of beneficia-
ries and providers. Thus, for example, where the designated
state agency determines that a person is eligible for Medicaid
benefits, administrative efficiency counsels that the agency
itself, the individual, and other affected parties should be able
to rely on the decision without worrying that some other state
or local entity may later "change or disapprove" it, in viola-
tion of 42 C.F.R. § 431.10(e)(3). See Forsyth Cnty. Bd. of
Soc. Servs. v. Div. of Soc. Servs., 346 S.E.2d 414, 416-17
(N.C. 1986) (holding that under 42 C.F.R. § 431.10(e)(3), a
county department of social services cannot sue seeking
reversal of the single state agency’s Medicaid eligibility deter-
mination).
With respect to the accountability rationale, the vesting of
responsibility over a state’s Medicaid program in a single
agency safeguards against the possibility that a state might
seek to evade federal Medicaid requirements by passing the
buck to other agencies that take a less generous view of a par-
ticular obligation. As the Second Circuit has explained, "the
reason for the requirement that a state designate a ‘single
State agency’ to administer its Medicaid program . . . was to
avoid a lack of accountability for the appropriate operation of
the program." Hillburn v. Maher, 795 F.2d 252, 261 (2d Cir.
1986) (rejecting single state agency’s argument that it did not
need to comply with certain Medicaid regulations because of
contrary decisions by another agency). As a result, a single
state agency may not "diminish[ ] or alter[ ]" its Medicaid
responsibilities based on the "action or inaction of other state
offices or agencies." Id.In sum, the single state agency requirement represents Con-
gress’s recognition that in managing Medicaid, states should
enjoy both an administrative benefit (the ability to designate
a single agency to make final decisions in the interest of effi-
ciency) but also a corresponding burden (an accountability
regime in which that agency cannot evade federal require-
10 K.C. v. SHIPMAN
ments by deferring to the actions of other entities). See San
Lazaro Ass’n v. Connell, 286 F.3d 1088, 1100-01 (9th Cir.
2002) (noting that single state agency requirement ensures
"systemwide efficiency" and "systemwide accountability").
This does not mean, of course, that a single state agency may
never delegate responsibilities to other entities. Such agency
relationships are expressly contemplated, for example in the
context of MCOs like PBH that manage the provision of Med-
icaid on the state’s behalf. See 42 C.F.R. §§ 438.1(b), 438.6.
But the single state agency requirement does mean that a dele-
gation can go only so far: where the agency makes a final
decision, it cannot be overridden by another state or local
entity.
B.
In this case, there is no dispute that North Carolina law des-
ignates the NCDHHS as the agency responsible for operating
the state’s Medicaid plan. N.C. Gen. Stat. § 108A-54. Nor is
there any dispute that PBH is a "local political subdivision of
the State," N.C. Gen. Stat. § 122C-116(a), which has con-
tracted with the NCDHHS to operate a managed care Medic-
aid program on the state’s behalf. Federal and state law thus
interlock, establishing the following propositions: the
NCDHHS is the "single State agency" with the final responsi-
bility to administer the state’s Medicaid program under 42
U.S.C. § 1396a(a)(5), and as a local subdivision of the state,
PBH is forbidden to "change or disapprove any administrative
decision" made by the NCDHHS pursuant to 42 C.F.R.
§ 431.10(e)(3).
The question, then, is whether PBH’s appeal seeks to
"change or disapprove" an "administrative decision" of the
NCDHHS such that it is barred by § 431.10(e)(3). PBH con-
tends that the answer is "no." It argues first that this appeal
does not change or disapprove any NCDHHS decision at all
because PBH and the NCDHHS still take "the same position
in this litigation"—namely that they did not violate plaintiffs’
K.C. v. SHIPMAN 11
notice and hearing rights. Appellants’ Reply Br. 22-23. But
this contention misses the mark for a simple reason: it focuses
on the wrong decision.
The agency decision that PBH seeks to disapprove is not
the NCDHHS’s ultimate position on the merits of the underly-
ing case. It is the NCDHHS’s decision not to appeal and
thereby to comply with the preliminary injunction. The
NCDHHS’s decision to comply means that the injunction is
binding not only on the NCDHHS itself, but also on the
NCDHHS’s "agents" and any who are in "active concert or
participation" with it. Fed. R. Civ. P. 65(d)(2). There is thus
no escaping the fact that the NCDHHS has effectively
decided that it and PBH—which is obligated to manage plain-
tiffs’ care in accordance with its contract with the NCDHHS
—will provide plaintiffs with their prior level of services (or
else notice and a hearing) until a final judgment permits other-
wise. Yet the entire purpose of PBH’s appeal is to overturn
that decision: PBH seeks to reduce plaintiffs’ services imme-
diately, without providing notice or a hearing. We must there-
fore reject PBH’s contention that this appeal does not "change
or disapprove" any decision by the NCDHHS.
PBH responds that even if its appeal does seek to change
or disapprove some decision made by the NCDHHS, the deci-
sion in question is not an "administrative decision of that
agency" protected under § 431.10(e)(3), but rather a mere "lit-
igation" decision. Appellants’ Reply Br. 22. Again we dis-
agree.
To start, we find no support for the notion that litigation
decisions are somehow categorically precluded from consti-
tuting an "administrative decision" under the regulation.
Although the phrase is not expressly defined in the relevant
provisions, the plain meaning of an "administrative decision"
of a single state Medicaid agency naturally encompasses deci-
sions that pertain to the management of the state’s Medicaid
program. See Random House Dictionary of the English Lan-
12 K.C. v. SHIPMAN
guage 26 (2d ed. 1987) (defining "administrative" as "pertain-
ing to administration" and "administration" as the
"management of any office, business or organization"). No
less than its decisions in other contexts, of course, an agency’s
litigation decisions can have substantial impacts on the man-
agement of a state’s Medicaid program. One need look no fur-
ther than this case to see how: the NCDHHS’s choice to
comply with the preliminary injunction means that absent the
provision of notice and appeal rights, the state must provide
a class of Medicaid beneficiaries their previously authorized
level of services pending a final ruling from the courts.
Of course, our conclusion that the Secretary’s decision not
to appeal is an "administrative decision" protected from inter-
ference by another agency under § 431.10(e)(3) does not
mean every litigation decision by a single state agency quali-
fies as such. But we do not need to list every example of an
"administrative decision" in order to hold that where, as here,
an agency’s decision is tantamount to a substantial policy
choice, the decision falls within the sphere of agency judg-
ment covered by § 431.10(e)(3). After all, it can hardly be dis-
puted that if the NCDHHS had issued a policy statement
declaring that all PBH enrollees would be eligible to receive
their prior level of services (or else a fair hearing) until a con-
trary judicial ruling, that choice would surely constitute an
"administrative decision" that local agencies would not be
permitted to "change or disapprove" under § 431.10(e)(3).
The result should not be any different here simply because the
Secretary made the same decision in response to litigation
rather than before it. If anything, a decision made in the
instant context should be entitled to even greater respect
because it comes with the backing of a court order announc-
ing a preliminary interpretation of federal law.
Our conclusion is all the more necessary when one consid-
ers the implications of PBH’s opposing approach. If important
litigation decisions made by a single state agency were not
"administrative decisions" protected from challenge by
K.C. v. SHIPMAN 13
another agency, the resulting inefficiency and turmoil would
be profound. Consider, for example, a case in which a single
state agency agrees to a consent decree confirming the Medic-
aid eligibility of a group of citizens. PBH’s position would
imperil that decision by permitting any county Medicaid
office or local MCO to embroil the courts in a collateral law-
suit seeking a reversal of the decree. Or consider the converse
situation where the designated agency elects to litigate a Med-
icaid case rather than to settle. Under PBH’s view of
§ 431.10(e)(3), the agency’s choice to pursue the lawsuit
could be subject to "change or disapprov[al]" by another state
or local entity that would prefer to settle the matter on what-
ever terms that other entity deemed satisfactory. The result of
PBH’s interpretation would be a constant state of confusion
in the litigation process in which parties (and judges) must not
only attempt to argue (or decide) the merits of each case, but
where they must first identify which of multiple state entities
is even speaking with the state’s final authority.
PBH’s view would thus compromise both the efficiency
and accountability rationales for the single state agency
requirement. That requirement prevents improvident ends by
arresting their beginnings. Put simply, by directing states to
designate a single Medicaid agency the decisions of which
may not be overridden by other state and local actors, the
requirement prohibits precisely what PBH aims to achieve in
this appeal: to place itself in the driver’s seat and call the
shots on how the state’s Medicaid program is to be adminis-
tered in the face of a clearly contrary decision by the
NCDHHS. PBH’s appeal thus contravenes 42 U.S.C.
§ 1396a(a)(5) and 42 C.F.R. § 431.10(e)(3), and must be dis-
missed.
C.
The case for dismissal of the appeal is underscored not only
by the single state agency requirement, but also by the fact
that it follows from that very requirement that PBH is pushing
14 K.C. v. SHIPMAN
the court to issue an advisory opinion. For the Secretary’s
decision not to appeal means that PBH would remain bound
by the preliminary injunction regardless of any decision this
court might issue.
1.
A party seeking recourse must establish that it is "likely, as
opposed to merely speculative, that [its] injury will be
redressed by a favorable decision." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks
omitted). Of course, the elements of standing must be satis-
fied not just at the outset of a suit, but also on appeal. See
Bond v. United States, 131 S. Ct. 2355, 2362 (2011).
In this appeal, PBH seeks relief in the form of a reversal of
the district court’s preliminary injunction. PBH argues that
such a decision "would in no way be merely advisory"
because once the injunction is reversed, PBH’s injury will
necessarily be redressed: that is, PBH will be free to reduce
plaintiffs’ services (or as PBH argues, their budgets) without
first providing notice and hearing rights. Appellants’ Reply
Br. 27.
PBH is mistaken. Its problem lies again in the Secretary’s
choice not to appeal and to instead comply with the prelimi-
nary injunction while litigating the case through to final judg-
ment. In that context, the question becomes whether the fact
that the NCDHHS remains obligated to obey the injunction
means that PBH would also be bound to comply regardless of
any decision we might issue. Or, put slightly differently, the
question is whether PBH—the NCDHHS’s contractual agent
with respect to plaintiffs’ Medicaid services—may disregard
the injunction even as PBH’s principal is obligated to comply
with it. For several reasons, we cannot countenance that
result.
First, because the preliminary injunction binds the
NCDHHS, so too must it bind PBH under ordinary operation
K.C. v. SHIPMAN 15
of the Federal Rules of Civil Procedure. Federal Rule of Civil
Procedure 65(d)(2) dictates that every order granting an
injunction is binding not only on named parties, but also on
"the parties’ . . . agents" as well as any others with whom they
"are in active concert or participation." As the Supreme Court
has explained, the purpose of this rule is to prevent defendants
from "nullify[ing] a decree by carrying out prohibited acts
through aiders and abettors." Regal Knitwear Co. v. NLRB,
324 U.S. 9, 14 (1945). Echoing that purpose, the plaintiffs’
motion in this case specifically requested preliminary injunc-
tive relief against not just the defendants, but also their
"agents . . . and all persons acting in concert or participating
with them."
Applying Rule 65(d)(2) to this case, there is no dispute that
PBH is an agent of the NCDHHS due to its contract to admin-
ister plaintiffs’ Medicaid services on behalf of the state. Nor
is there any question that PBH is acting in participation with
the NCDHHS to that same end. Thus, PBH is restrained by
the preliminary injunction through not one, but two channels:
first, in its capacity as a named defendant, and second, in its
capacity as an agent and co-participant of the NCDHHS with
respect to plaintiffs’ Medicaid services. To be sure, a decision
in this appeal in PBH’s favor could negate the former channel
of restraint. But such a decision could in no way affect the lat-
ter channel because the NCDHHS’s choice not to appeal
means that the injunction remains binding on it—and, as a
consequence of Rule 65(d)(2), so too its agent and co-
participant PBH. See Tenn. Ass’n of Health Maint. Orgs. v.
Grier, 262 F.3d 559, 565 (6th Cir. 2001) (holding that under
Rule 65(d), consent decree issued against single state Medic-
aid agency was also binding on MCOs due to their agency
relationship with the state); U.S. ex rel. Rahman v. Oncology
Assocs., 198 F.3d 502, 511 (4th Cir. 1999) (citing Rule 65(d)
and holding that writ of mandamus issued against Medicare
agency was also binding on non-party Medicare contractors).
There is another reason why we may not allow PBH to
evade a preliminary injunction that continues to run against
16 K.C. v. SHIPMAN
the NCDHHS: the single state agency requirement. Recall
that this requirement embodies an important accountability
rationale: Congress’s desire to prevent states from backsliding
on their Medicaid obligations by deferring to the non-
conforming actions of other agencies. See Hillburn, 795 F.2d
at 260-61. To that end, 42 C.F.R. § 431.10(e)(1) provides that
the single state agency "must not delegate . . . authority to
[e]xercise administrative discretion in the administration" of
the state’s Medicaid plan to others. Another regulation, id.§ 435.903(b), requires the agency to "[t]ake corrective action
to ensure" the adherence of local agencies to the state’s Med-
icaid program. The single state agency requirement thus for-
bids the result that PBH seeks on appeal: it bars the NCDHHS
from escaping its legal responsibilities (i.e., to obey the
injunction) by acquiescing to the non-compliant actions of
another agency like PBH.
In sum, PBH must show that it is likely, not just specula-
tive, that a favorable decision will provide the redress it seeks.
See Lujan, 504 U.S. at 561. Yet the binding effect of the pre-
liminary injunction on PBH pursuant to Rule 65(d)(2) and the
single state agency requirement makes it speculative at best
whether a decision in this appeal would enable PBH to engage
in the conduct that the district court enjoined.
2.
PBH asserts that any decision reversing the injunction as to
it would automatically inure to the benefit of NCDHHS
because "it is not logical to argue that an order that is reversed
or vacated based on an erroneous interpretation of law would
somehow still be enforceable against a party simply because
that party did not also take an interlocutory appeal." Appel-
lants’ Reply Br. 25-26. If PBH were correct, there would be
no redressability problem since a ruling in its favor would
negate both channels through which it is restrained by the pre-
liminary injunction: the injunction would no longer bind PBH
either as a named defendant or as an agent of the NCDHHS.
K.C. v. SHIPMAN 17
But PBH is again mistaken. It is basic to appellate practice
that a "judgment will not be altered on appeal in favor of a
party who did not appeal"—a rule that applies even if "the
interests of the party not appealing are aligned with those of
the appellant." Smith v. Dairymen, Inc., 790 F.2d 1107, 1109
(4th Cir. 1986) (quoting 9 Moore’s Federal Practice
¶ 204.11[4], at 4-54 to -55 (2d ed. 1980)). Indeed, where "co-
defendants are held liable below, and one appeals and one
does not," if the district court’s order is reversed as to the
appealing party, "the party not appealing remains liable,
despite the fact that the liability of each depends upon the
same legal principles." Id.We are thus powerless to provide the very relief that PBH
needs: an order reversing the preliminary injunction as against
both PBH and the NCDHHS. We lack that ability for good
reason, too, because offering a non-appealing party the auto-
matic benefit of any appellate decision won without its partic-
ipation would produce an intractable free-rider problem, not
to mention endless follow-on litigation by non-appealing par-
ties to determine whether their interests are closely enough
aligned with those of the appealing party to warrant the bene-
fit of the appellate judgment. We accordingly reject PBH’s
contention that a decision in its favor would as a matter of
course render the preliminary injunction unenforceable
against the NCDHHS.3
3
PBH further argues that even if this appeal would not automatically
benefit the NCDHHS, a reversal would still redress PBH’s injury by
enabling the Secretary to file a motion in the district court for relief from
the preliminary injunction pursuant to Federal Rule of Civil Procedure
60(b). But "a preliminary injunction is not a ‘final judgment, order, or pro-
ceeding’ that may be addressed by a motion under Rule 60(b)." Prudential
Real Estate Affiliates v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir.
2000) (quoting Fed. R. Civ. P. 60(b)). Moreover, even if a Rule 60(b)
motion were available, there is some question whether the Secretary
would apply for such relief if given the chance. After all, the Secretary had
the ability to appeal the preliminary injunction as a matter of right by sim-
ply filing a notice to that effect, but chose not to do so. In addition, even
18 K.C. v. SHIPMAN
III.
On March 28, 2013, one week after oral argument and
more than ten months after the Secretary’s deadline to file a
notice of appeal had expired, we received a motion from the
Secretary seeking leave to file a "Memorandum in Response
to Questions Raised at Oral Argument." In the motion, the
Secretary sought the court’s consent "to clarify [the NCDH-
HS’s] position to the extent it is relevant to the Court’s further
consideration of the matters presented in this case." Secre-
tary’s Mot. for Leave to File Mem. in Resp. to Questions
Raised at Oral Arg. 4. Reflecting the unusual nature of its
request as a non-party to this appeal, the Secretary filed the
motion under Rule 2 of the Federal Rules of Appellate Proce-
dure, which permits a court to "suspend any provision of [the
Rules]" for "good cause." The Secretary did not specify which
rules she would like us to suspend, but for the reasons that
follow we find no "good cause" to suspend any rules at all.
To start, the Secretary points to nothing close to good cause
for why this court should consider her views on the issues
raised by this appeal ten months after her deadline elapsed to
participate in it as a matter of right. The only explanation the
Secretary offers is that the NCDHHS "did not anticipate prior
to oral argument that this Court might view or interpret [its]
decision not to . . . appeal as precluding an appeal by [PBH]."
Secretary’s Mot. for Leave to File Mem. in Resp. to Ques-
tions Raised at Oral Arg. 4. We find that explanation wanting.
if a Rule 60(b) motion were available for relief from a preliminary injunc-
tion, and even if the Secretary were to file such a motion, there is no guar-
antee that it would succeed. The remedy afforded by Rule 60(b) is an
"extraordinary" one that is "only to be invoked upon a showing of excep-
tional circumstances." Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th
Cir. 1979). In any event, we need not (and may not) decide the ultimate
outcome of any hypothetical Rule 60(b) motion filed by the Secretary. Our
only point here is that PBH’s theory—that a ruling in its favor will redress
its injury by virtue of such a motion—is riddled with speculation.
K.C. v. SHIPMAN 19
For one thing, the NCDHHS has been aware of its respon-
sibilities under the single state agency requirement since at
least 2009, when it was the defendant in a Medicaid case that
held that "[a]s North Carolina’s ‘single state agency,’ . . . [the
NCDHHS] may not disclaim its responsibilities under federal
law by simply contracting away its duties." McCartney v.
Cansler, 608 F. Supp. 2d 694, 701 (E.D.N.C. 2009). Thus,
even though it is generally permissible for a single state
agency to enter into a contractual relationship with an MCO,
the Secretary was on clear notice that allowing such a contrac-
tor to take a particular action (i.e., an appeal)—while dis-
avowing the opportunity to take the same action in the
agency’s own right—could be subject to attack. Even worse
for the Secretary, plaintiff/appellees filed their brief in this
case in August 2012, squarely arguing that the NCDHHS’s
failure to appeal should trigger dismissal of PBH’s appeal.
PBH responded to that argument in its reply brief two weeks
later. The NCDHHS nowhere disputes that it was (or at least
should have been) aware of both of these filings, yet it made
no effort to address either one. It thus defies reason for the
NCDHHS to suggest now, seven months after the issue was
briefed and years after a related ruling against it in district
court, that it was surprised by the panel’s questions at oral
argument.
More fundamentally, we decline to find good cause here
because the basic rule from which the Secretary seeks relief
is as easy to follow as it is widely known. That is, the NCDH-
HS’s motion effectively asks for permission to participate in
this appeal despite the fact that it failed to appeal in a timely
fashion. Yet the NCDHHS is represented in this matter by the
North Carolina Attorney General, a sophisticated and frequent
litigant in this court. As such, the NCDHHS is surely aware
of the time limit for filing an appeal, as well as the fact that
this limit has been "treated as jurisdictional in American law
for well over a century." Bowles v. Russell, 551 U.S. 205, 209
n.2 (2007). The NCDHHS must also know that there is even
a special procedure to make things easier on entities that share
20 K.C. v. SHIPMAN
similar interests in an appeal: under Federal Rule of Appellate
Procedure 3(b)(1), such parties "may file a joint notice of
appeal" and "proceed on appeal as a single appellant." Thus,
literally all the Secretary had to do to participate in this
appeal, as it hopes to do now, was co-sign PBH’s notice one
year ago.
Why the NCDHHS failed to take such an easy step, we
cannot say for certain. The NCDHHS suggests that it declined
to appeal because doing so would have been "duplicative,"
Secretary’s Mot. for Leave to File Mem. in Resp. to Ques-
tions Raised at Oral Arg. 3, but that answer only raises more
questions. Duplicative in what sense? Surely not in terms of
wasted effort, since the Secretary could simply co-sign PBH’s
papers. And surely not duplicative in the sense of "unneces-
sary," for the NCDHHS acknowledges that it will not auto-
matically benefit from a ruling in PBH’s favor, instead
requiring the filing of a Rule 60(b) motion, a problematic
course for all the reasons we have discussed. See ante at
17-18 n.3. In short, we find it dubious that the Secretary
would think it permissible to allow some other litigant to be
its stalking horse in this court, only then to seek leave to par-
ticipate in the case long after the time for doing so had run.
We recognize, of course, that there has been a change in
administrations since the Secretary’s failure to notice an
appeal. But if we let a state off the hook for its decision not
to appeal based on new electoral outcomes, what other rules
would we be called upon to bend when the political winds
shift and a new executive experiences buyer’s remorse for
decisions of the old? The better course by far is to enforce
consistently for all litigants the time-honored rules that have
long governed how an entity may participate in appeals in this
court.
In the end, the Secretary’s motion serves only to reinforce
the weaknesses in PBH’s appeal. For if, as PBH argues, the
Secretary and PBH were truly in agreement all along that they
did not wish to comply with the preliminary injunction, all the
K.C. v. SHIPMAN 21
Secretary had to do to make that position clear was join in
PBH’s appeal. That the NCDHHS did not take that simplest
of steps indicates that it was actually making an administra-
tive policy decision to comply with the injunction, which the
single state agency requirement forbids PBH to overrule.
Likewise, it is the Secretary’s failure to file a simple notice of
appeal that bars her late participation in this case.
Of course, our decision does not leave the Secretary with-
out recourse. Quite the contrary. The Secretary is free to press
her views on the merits when the permanent injunction is liti-
gated in the district court, as well as in any subsequent appeal
of such an injunction before this court. What the Secretary
may not do, however, is participate in the instant appeal of the
preliminary injunction, almost a year after the proper time for
doing so has passed, in order to respond to supposedly sur-
prising questions posed at oral argument that she should have
known were on the way. The Secretary’s motion is accord-
ingly denied.
IV.
Spanning hundreds of regulations across fourteen parts and
scores of subparts in the Code of Federal Regulations, Medic-
aid is—to put it mildly—a complicated program to adminis-
ter. Seen in that light, the single state agency requirement is
a sensible measure aimed at eliminating the added layer of
complexity that would result if primary actors and courts were
required to ask in every case, "who actually speaks for the
state?" Because of this requirement, we cannot permit PBH to
override the NCDHHS’s decision not to appeal, but to comply
with, the preliminary injunction. One head chef in the Medic-
aid kitchen is enough.
The appeal is hereby dismissed.
DISMISSED