### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-10010

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. W o l cott, M.D., P.A., filed a complaint seeking a writ of mandamus ordering the Secretary o f H ealth and Human Services and a Medicare payment administrator to proces s and pay allegedly outstanding cl a i m s d u e Wolcott for services it provided to Medicare beneficiaries. After finding that Wolcott failed to establish a right to mandamus relief because the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 17 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5th Circ uit Rule 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5th Circ uit Rule 47.5 .4. Case: 12-10010 Document: 00512022985 Page: 1 Date Filed: 10/17/2012No. 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 Texasb a s e d professional association that provides wound-care services, including deb ri d e m e nt , to M e dic ar e b e n e f ici ari e s . D ef

e n d ant

- Appellee Kathleen Sebelius, 1 in her official capacity as Secretary of the United States Department of Health and Human Services (t h e “Secretary”), administers the federal Medicare program. Defendant-Appellee TrailBlaze r H ealth Enterprises LLC (“TrailBlazer”) is a limited liability company that contracts with the D e p art m ent 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 t o tal value of $700,000.” Though Wolcott successfully appealed each of these clai m s thro u gh th e Medicare

a d mini s tr ative ap p e al s p ro c e s s , Wolcott alleged that th e d e f e n d ant s n everth e l e s s 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 Wo l c o t t ’ s claims and that Wolcott had failed to plead claims upon which mandamus reli e f 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

De brid em ent is “th e s u r gical rem oval of lace rat ed, devit alized , or cont ami nate d 1 tis sue .” Webs ter ’s Thir d NewInte rnat ional Di cti onary 582 (196 3). 2 Case: 12-10010 Document: 00512022985 Page: 2 Date Filed: 10/17/2012No. 12-10010

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 administ r ative 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 f o r t hat claim, pursuant to the Mandamus and Venue Act, because Wolcott “ask[ed] the district court to order the defendants t o c o m p l e t e affirmative actions to fulfill their allegedly nondiscretiona r y d u t i e s under the law.” Id. at 766. Next, the 2 court explained that, at that time, Wol c ott 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 Wolco t t ’ s f avor, and that no adequate alternative remedies exist[ed].” Id. at 771. This claim was supported, the court hi ghlighted, by “a fully favorable decision by an administrative law judge (‘ALJ’), dated June 23, 2009, which reversed the denial o f n inety-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

Sec tio n 1361 of the Man dam us and Venue Act pr ovide s that “[t] he dis tri ct cour t sha ll 2 have origi nal juris dic ti o n o f a n y a cti on in the natur e of man dam us to com pel an off icer or em plo yee of the Unit ed State s or any agency ther eof to per for m a dut y ow ed to the plai ntif f. ” 28 U. S. C. § 1361. Of note , the Wol cott c o u r t a l s o e x plai ned, cont rar y to the def enda nts ’ argum ent in that cas e, that reli ef under 28 U. S. C. § 1361 wa s not pr eclu ded by the Medi car e Act. 635 F.3dat763 –66. The rec ord ref

lect s so me dis agree me n t b e t w een the par tie s as to the act ual dat e of 3 this ALJ dec isi on, wi th so me doc ume nts ref lect ing the dat e of June 23, 2009 and othe rs sho wi ng the dat e of June 24, 2009. The expla natio n for this dis cre panc y se em s to be that the ord er, origi nally iss ued on June 23, 2009, w a s ame nded on June 24, 2009 to inclu de an ap p e n d i x t h a t wa s app aren tly inadvert entl y om itt ed fr om the June 23, 2009 dec isi on. To 3 Case: 12-10010 Document: 00512022985 Page: 3 Date Filed: 10/17/2012No. 12-10010

Presumably because the sole issue still in contention on remand was whether p a y m e n t 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 cou r t’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 sup p o r t o f, 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 expr e ssly discuss the continued vitality of the Medicare claims underlying Count I. The defendants, on th e o th e r h an d , c o m p li ed with the district court’s order, filing their summary judgment motion on November 4, 2012. In that motion, the defendants argued, inter a l i a , 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, an d Wolcott’s mandamus claim was therefore moot. To s ubstantiate this assertion, the defendants attached to their motion: (1) a n 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

mai ntain cons ist ency wi th Wol cott , and becaus e the subst antive asp ect s of the decis ion we re add res se d in the J u n e 2 3, 2009 dec isi on, this cour t wi ll use that dat e wh en ref err ing to the dec isi on. Not ably, that sp read she et pur por ted ly sho ws not only paym ents mad e in conne cti on 4 wi th the June 23, 2009 ALJ dec isi on, but als o paym ents mad e for clai ms not requ ired by that 4 Case: 12-10010 Document: 00512022985 Page: 4 Date Filed: 10/17/2012No. 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 exten s i o n u n t i l 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 i n t h e i r 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, th e d e f e n d ant s asserted that Wolcott’s proposed amendment would pr e j u dic e th e 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. Wit h o u t 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, t he district court ruled that Count I was moot because the defen d a n t s h a d 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 de f e c t i n the previously dismissed claim. Wolcott timely appeals, claiming that the district court erred in entering
summary judgment against it. In particular, Wolco t t argues that the court deprived it of its due process rights to notice and a meaningful opportunity to be

dec isi on. 5 Case: 12-10010 Document: 00512022985 Page: 5 Date Filed: 10/17/2012No. 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. 2 0 12). Summary judgment is proper “if the movant shows that the r e i s n o 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 o f 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 . . . consi d er summary judgment on its own after ident i f yi n g for the parties material facts that may not be gen u i n e l y i n d ispute.” Fed. R. Civ. P. 56(f); see also Celotex Corp. v. Catrett , 477 U.S. 317, 326 (1986) (“[D]istri c t c o u rt s 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 [t h e c o u r t] 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 St a t e s , 8 4 9 F .2d 1576, 1579 (5th Cir. 1988). Accordingly, providing notice in connection with summary judgment “is not an unimportant technicality,” but rather giv e s the opposing

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party an opportunity to contest entry of summary judgment against it. Hanson v. Polk Cnty. Land, Inc. , 608 F.2d 129, 131 (5th Cir. 197 9). Relying on these principles, Wolcott cites to Powell and New York Life Insurance Co

. v . B rown , 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 e n t ry of
summary judgment against taxpayers who were seek i n g 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 a r gu m e n t .” Id. We found that the few hours’ notice the taxpayers received “was surely not sufficient time to allow [t h e i r] counsel to submit all of its legal and fact u a l a r gu m e n ts.” 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 gr a nt of summary judgment, a defendant has no opportunity to be heard

. . . [and is] denied due process of law.” 84 F.3d at 1 4 3. 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 a d d r e ss 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 W o l cott 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 O c t o b e r 7, 2011, when the court ordered the parties to submit summary judgment motions, u n t i l December 1, 2011, when the court entered s u m m a r y judgment. Second, unlike in either 5 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 f a c t s 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

s t a t e d t h at the parties should file summary judgment motions “[i]n the even t a dispute remains.” The di s t r i c t court thus put Wolcott on notice that it was contemplating
summary judgment. Moreover, by directing each party to submit a s ummary judgment motion, and by giving it a reasonable time to do so, the co u r t a l s o provided Wolcott with the opportunity “to s ubmit 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

Furt herm ore , in cont ras t to the cur rent vers ion of Rule 56, see Fed. R. Civ. P. 56(f ), 5 the vers ion of that rule in eff ect w h e n Pow el l wa s dec ide d did “not sp eak to sum mar y judgm ent on the cour t’s ow n m oti on. ” Pow el l , 849 F.2dat157 8. 8 Case: 12-10010 Document: 00512022985 Page: 8 Date Filed: 10/17/2012No. 12-10010

Wolcott has also failed to satisfy the burden it carri e d i n seeking mandamus relief. M a n d a m u s jurisdiction in federal courts is codified by 28 U.S.C. § 1361, which provides that “[t]he d i s t r i ct court shall have original jurisd i c t i o n 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 r i ght to the relief sought, a clear duty by the defendant to do the particular act, and that no other adequate remedy is avai l ab l e . ” Green v. Heckler , 742 F.2d 237, 241 (5th Cir. 1984)

. I n e x pounding 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 office r i s m i nisterial 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 s eeking mandamus bears a “heavy burden” of estab l i s h i ng its entitlement to such extraordinary relief. Dresser v. Ohio Hempery, Inc. , 122 F. App’x 749, 755 (5th Cir. 200 4) (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 parti c u l a r , Wolcott was aware that, to demonstrate a right to a writ of mandamus, it was required to establish its clear ri gh t to relief and the defendants’ clear dut y 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 pr o vi d e d nothing to the district court to support its allegation that successfully appealed Medicare claims still remained

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unpaid by the defendants. While the Wolcott court had stated that Co u nt I initially was supported by the fully fav orable 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 evi d e nc e . Moreover, although Wolcott asserts that the claims addressed in the June 23, 2009 ALJ d e cision 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 th o s e d i s c u ssed in that decision. In failing to provide such evidence, Wolcott also failed to carry 6 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 j u d g ment

m otion and to introduce evidence it may have had of other unpaid Medic a r e claims. As we have dis c ussed, 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 pro vi d ed 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 i t t o f i l e a summary judgment motion because it believed there was a genuine dispute as

Altho ugh Wolc ott ’s com plai nt inclu ded by att achm ent othe r favor able ALJ dec isi ons , 6 th o s e dec isi ons we re evide ntly intr oduc ed to sup por t othe r count s that we re event ually dis mi ss ed by this cour t in Wolcott

. Wolc ott ’s couns el conc ede d dur ing oral argum ents in this cas e that the only evide nce in the rec ord rela ted to C o u n t I w a s t h e June 23, 2009 ALJ dec isi on. 10 Case: 12-10010 Document: 00512022985 Page: 10 Date Filed: 10/17/2012No. 12-10010

to whether the claims at issue actually had been pa i d

. Ac cordingly, Wolcott

a s s e r t s that filing a summary judgment motion while entertaining this belie f

w ould have been a violation of Rule 11, which requires parties to certify t h a t motions submitted to a court are “ w a rranted by existing law” and contain “factual contentions [that] have evidentiary suppo rt

. ” F e d

. R. Civ. P. 11(b). 7 In advancing this argument, Wolcott appears to ta k e issue with the district court’s order requiring the parties to file summary judgment m o tions. N e v ertheless, when the district court first entered that order, Wolcott d i d n o t object to it. Further, it is well sett l e d t h a t district courts have the inherent authority “to m anage 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 o f C ivil Procedure] directly mandate a specific pro c e dure 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 T r u c k i n g, Inc. , 867 F.2d 996, 1002 (7th Cir. 1989)). Moreover, to the exten t 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 Wo l cott could have asserted its position. Rule 59(e), for example, allows a party to file a motion t o a l t er or amend a judgment, while Rule 60(b) permits a party to seek relief f r om 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

Wo lcot t fir str ais ed this ar gume nt on app eal, and , even then , only in its r epl y br ief

. 7 This cour t genera lly doe s “not cons ide r argum ents rais ed for the fir st tim e on app eal, ” In re Paige , 610 F.3d 865, 871 (5t h Cir. 2010) , thou gh for the reas ons note d, Wolc ott ’s argum ent is, in any e vent, unavailing. 11 Case: 12-10010 Document: 00512022985 Page: 11 Date Filed: 10/17/2012No. 12-10010

orders, or otherwise could hav e d e m o nstrated 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 w e have explained, however, in making this argument, Wo l c o t t 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, Wolcot t f a i l e d 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 de m o n s t rate a live case or controversy associated with that count rendered moot the only remaining aspect of the case. See Deakins v. Monaghan , 484 U.S. 193, 199 (1988) (“Article III of

8
t h e Constitution limits federal courts to the adjudication of actual, ongoi n g controversies between litigants.”); Goldin v. Bartholow , 166 F.3d 710, 717 (5th Cir. 1999) (“A moot c a s e p r e sents 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.

As we have note d, Wolc ott fil ed a mo tio n for leave to ame nd and now argues that the 8 dis tri ct cour t err ed in denyi ng it. We need not a d d res s that iss ue. “[ T]he man dat e rule com pel s com pli ance on rem and wi th the dic tat es of a sup erio r cour t and for eclo se s reli tigat ion of iss ues expr es sly or im pli edl y dec ide d by the app ellat e cour t. ” Uni ted States v. Lee , 358 F.3d 315, 321 (5t h Cir. 2004)

. As the dis tri ct cour t expla ined in its ord er , Wolc ott ’s pr opo se d ame ndm ent wa s func tio nally no dif fer ent fr om the clai m alre ady dis mi ss ed, wh ich dis mi ss al
we aff i r me d in Wol cott

. The cour t thus conc lude d that “f or the sam e reas ons alre ady art icula ted [in Wol cott], it wo uld be im pr ope r to allow Plaint iff ’s pr opo se d ame nded ple adin g.” We agree
. 12 Case: 12-10010 Document: 00512022985 Page: 12 Date Filed: 10/17/2012