9 F. 3d 117 - Medicare&medicaid Gu 41902

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This is an appeal from a district court order holding that the State of Oklahoma's 1992 Medicaid reimbursement rate violated the procedural requirements of the Boren Amendment to the Medicaid Act, 42 U.S.C. 1396(a)(13)(A), and its implementing regulations. The order declared the 1992 rate invalid and directed the parties to attempt to agree upon a proposal for compliance with the Boren Amendment with respect to the 1992 and 1993 Medicaid reimbursement rate. In the event the parties were unable to agree, the defendants were ordered to submit a proposal for compliance. This court ordered the parties to submit memorandum briefs addressing whether the order is final and/or immediately appealable.

The parties assert that the order is not a final decision appealable under 28 U.S.C. 1291 because it does not dispose of all of plaintiffs' claims and does not conclusively grant relief. We agree.

Defendants contend that the order is an appealable interlocutory injunction under 28 U.S.C. 1292(a)(1), insofar as it ordered defendants to prepare and submit a proposal for compliance, because the district court specified the nature and extent of the relief that will ultimately be ordered. In Jackson by Jackson v. Fort Stanton Hospital & Training School, 964 F.2d 980, 988 (10th Cir.1992), we recognized that a district court's order to submit a remedial plan is not tantamount to an injunction appealable under 1292(a)(1). An exception exists when the district court's order specifies the nature and extent of the injunctive relief which the final decree will grant. Id.

Here, while the district court described the inadequacies of the existing plan, it did not substantially prescribe the contents of the proposal for compliance. Defendants concede the district court only specified in broad outline form the nature and extent of relief to be ordered, and that they have discretion in developing the proposal. Thus, we conclude the order is not appealable under Jackson.

In light of the district court's September 28, 1993, order, plaintiffs have apparently abandoned their contention that the order contained an interlocutory injunction prohibiting defendants from relying on their invalid rate setting procedures to reduce rates. We therefore conclude the order is not an appealable interlocutory injunction under 1292(a)(1).

Plaintiffs assert that the portion of the order denying defendants' motion to dismiss on Eleventh Amendment grounds is immediately appealable under the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S.Ct. 684, 689 (1993). However, the Eleventh Amendment is "wholly inapplicable" to suits against state officials seeking prospective relief only. Id. at 688-89. "[T]he Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law." Green v. Mansour, 474 U.S. 64, 68 (1985).

The district court acknowledged that the Eleventh Amendment barred retroactive relief which would require expenditures from the state treasury, but concluded that defendants committed a continuing violation of federal law. Neither party challenges this determination. Thus, because the district court intends to grant prospective relief to prevent a continuing violation, no Eleventh Amendment concerns are present warranting an immediate appeal.

Plaintiffs' motion to file their third supplemental memorandum brief concerning jurisdiction is GRANTED. The appeal is DISMISSED.