ALBERT DAVIDSON, as Guardian of Marilyn Davidson; REGINA DAVIDSON, as Guardian of Marilyn Davidson, Plaintiffs, Appellants,
ELIN HOWE, as Commissioner of the Massachusetts Department of Developmental Services, Defendant, Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.
Margaret M. Pinkham, with whom Elise Busny and Pinkham Busny LLP were on brief, for appellants.
Timothy J. Casey, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee.
Before Lynch, Chief Judge, Thompson, Circuit Judge, and Smith,[*] District Judge.
LYNCH, Chief Judge.
Plaintiffs Albert and Regina Davidson are guardians
of 70-year-old Marilyn Davidson (whom we refer to as " Marilyn" ), who is in
state care. They appeal from the district court's denial of a preliminary
injunction in an action purported to be brought under the federal Medicaid Act
and various implementing regulations. Davidson v. Howe, No. 1:13-cv-12634-WGY
(D. Mass. Oct. 29, 2013). Plaintiffs sought to enjoin Marilyn's transfer from
the Fernald Developmental Center, her home since 1985 and which was being
closed, to her new home at the Wrentham Developmental Center. Both are
Intermediate Care Facilities (" ICFs" ) for the intellectually disabled operated
by the Massachusetts Department of Developmental Services (" DDS" ).
On appeal, the Davidsons argue in their briefs that the district court erred in denying the injunction and in holding that the statutory and regulatory provisions cited in their complaint, 42 U.S.C. § 1396a(a)(31) and 42 C.F.R. § 483.430, do not create a private right of action.
The Commonwealth argues that plaintiffs' case should be dismissed because the claims for injunctive and declaratory relief have been rendered moot by Marilyn's completed transfer to Wrentham, and that plaintiffs' claim for money damages is barred by the Eleventh Amendment. We agree that the claims for injunctive and declaratory relie f in the case are moot. The case does not raise issues which fall into an exception for mootness. We also hold that the damages claim is barred by the state's Eleventh Amendment immunity. We do not reach the question of whether there is a private right of action under the statute and accompanying regulations.
Marilyn is intellectually disabled and has been in DDS care for most of her life. Marilyn was first admitted to Fernald at age six in 1949. At age sixteen, Marilyn was transferred to Metropolitan State Hospital. Other than a short period when she lived in Westborough State Hospital, she remained at Metropolitan State Hospital until 1985, at which time she was transferred back to Fernald. In 2003, the Commonwealth
announced that it would close Fernald, described as " by far the most costly of the ICFs to run and the most seriously noncompliant with the Americans with Disabilities Act of 1990[, 42 U.S.C. § 12101 et seq.]." 
M.D. ex rel. Davidson v. Dep't of Developmental Servs. (" Davidson I" ), 83 Mass.App.Ct. 463, 464 n.4, 985 N.E.2d 863, 864 n.4, review denied, 465 Mass. 1107, 989 N.E.2d 900 (2013). In 2008, after protracted litigation, this court held that the Commonwealth could close Fernald
without re-opening the landmark 1993 consent decree, see Ricci v. Okin ("
Ricci III" ), 823 F.Supp. 984 (D. Mass. 1993), that brought to an end more than two decades of institutional reform litigation concerning the intellectually disabled in Massachusetts.
Ricci v. Patrick (" Ricci V" ), 544 F.3d 8, 15-22 (1st Cir. 2008).
Under the Ricci consent decree, certain disputes about treatment of class members are submitted to the state system. See id. at 20. There were extensive state administrative and judicial proceedings leading up to Marilyn's transfer from Fernald. Following this court's decision in Ricci V, DDS began to plan Marilyn's transfer from Fernald. DDS discussed with plaintiffs various alternative placements including at the two ICFs that would remain in operation (Wrentham and the Hogan Regional Center) as well as at state- and vendor-run community-based facilities. Davidson I, 83 Mass.App.Ct. at 474, 985 N.E.2d 863 at 871. Plaintiffs made plain that they opposed Marilyn's transfer from Fernald. Id. In May 2010, DDS gave plaintiffs notice of its specific plan to transfer Marilyn from Fernald to Wrentham. Id. at 465, 985 N.E.2d at 865; see Mass. Gen. Laws ch. 123B, § 3. Plaintiffs objected and DDS referred the matter to the Massachusetts Division of Administrative Law Appeals. Davidson I, 83 Mass.App.Ct. at 465, 985 N.E.2d at 865; see Mass. Gen. Laws ch. 123B § 3. Chapter 123B, § 3 of Massachusetts General Laws is a state law providing an administrative due process mechanism for review of agency decisions, followed by a mechanism ...