On September 6, 2002, the federal District Court for the District of Columbia granted plaintiffs’ summary judgment motion in Gray Panthers Project Fund, Inc. v. Thompson, Civ. Action No. 01-01374 (HHK) (D.C.D.C. filed June 22, 2001). The Center for Medicare Advocacy, Inc., represented the Gray Panthers Project Fund, Action Alliance of Philadelphia, the Medicare Rights Center, the Northern Virginia Medicare Ombudsman Program, and a Medicare beneficiary, Horace Baker, in their challenge to unilateral decisions by Secretary of Health and Human Services Tommy Thompson to delay the statutory date by which Medicare+Choice plans had to file their plan benefit information in 2001 and to ignore a statutory requirement to send written comparative plan information to beneficiaries. The court issued a preliminary injunction order in August 2000. As a result, HHS mailed supplemental comparative area-specific M+C plan information to beneficiaries in October 2001.

In granting the summary judgment motion, the court rejected the Secretary’s argument that the Plaintiffs’ claims were moot. Instead, the court found that the Secretary’s compliance with the preliminary injunction order fell within the "voluntary cessation" exception to the general rule regarding mootness. The Secretary would not have complied with the statutory requirement if the court had not ordered him to do so. Further, compliance with the preliminary injunction did not preclude the court from ruling that the Secretary’s 2001 action violated the law or that he may not evade the law in the future. The court further found that the failure to provide comparative plan information was not an oversight, but that the Secretary recognized that the information was both required by the Medicare statute and necessary to help beneficiaries compare M+C options. The court was also troubled by the Secretary’s "failure to confess error regarding his past conduct" and his repeated assertions about the reasonableness of his action.

The court in a footnote stated that the passage of Pub.Law 107-288, Sect. 532(b)(1) (June 12, 2002), which extended the MCO filing deadline from July to September, also did not render the controversy moot. The issue is not whether the information is to be submitted in July rather than in September, but whether the Secretary "may disregard the clear mandate of Congress in its administration of the Medicare+Choice Program." The court stated that, although the new deadline might make it easier to comply with the filing requirement, the Secretary did not make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

The court noted later in the opinion that the change in the date by which MCOs must file their plan benefit information makes the compiling and disseminating of written comparative plan information more difficult so that, without judicial intervention, the Secretary may violate the statutory requirement again.

In another footnote, the court dismissed the Secretary’s argument that the controversy was not ripe. The Secretary had argued that any harm from future actions was speculative since the court could not know the Medicare agency’s plans for future years. The court said the Secretary could not have it both ways, arguing that it is too late and too early for judicial intervention. The issue was fit for review because the Secretary’s behavior caused Plaintiffs cognizable injury.

Summary judgment in favor of Plaintiffs was warranted because the facts were both dispositive and not in dispute. The Secretary chose not to comply with the unambiguous dictate of Congress, and his actions violated both the Medicare statute and the Administrative Procedure Act. He did not meet the burden of demonstrating that, in the future, he would not again unilaterally choose to violate the M+C statute. As the court concluded, "Agencies may not choose to follow some laws while ignoring others... Put simply, agencies, like the rest of us, must obey the law -- even if compliance is cumbersome, burdensome, or costly."