*1 Burke, The Seery, Brian J. Williams & Tax Court’s factual Soren- determination is not sen, Cal., clearly erroneous. We believe Angeles, petitioners-appel- Los it is more likely taxpayers were moti- lants. primarily by vated daugh- concern for their Miller, C., Jay Washington, argued, W. D. ter by than an interest in the Olympic Team respondent-appellee; Duffy, Robert T. general. Nor do we believe that the Tax C., Washington, D. on brief. Court’s factual determination is inconsist-
ent with prior decisions. taxpayers argue
The also the ex- penditures should be deductible because ANDERSON, FERGUSON, Before and they could have been excluded if reim- REINHARDT, Judges. Circuit argument unpersuasive. bursed. This is The taxpayers authorities cited PER CURIAM: not demonstrate the here expenses taxpayers, parents Olympic The figure be Equally excludable or deductible. with- Babilonia, sought skater Tai to deduct the out merit taxpayer’s is the contention that accompanying cost of Tai to various inter- the Commissioner improperly argued for competitions expenses national incurred the first time in his posttrial brief that the to performing incident a service to a chari- expenditures were motivated a desire to organization. table We affirm the Tax argument further Tai’s career. This was Court’s decision disallowing the deductions. merely variation of the Commissioner’s trial that the expenses were for repeatedly We have held that do highly personal Tai’s commendable benefit. nations to a organization charitable are de The parents commendable sacrifices Tai’s ductible only if made out of a “detached made to further her remarkable carеer are See, and disinterested generosity.” e.g., Al expenditures deductible under current States, len v. (9th United 541 F.2d law. 1976). Cir. Where a contribution benefits judgment The the donor as well charity, pri as the mary purpose controls. The Commissioner AFFIRMED. need not show that personal benefit is the motive; sole may contribution not be
deducted where expectation of personal
benefit is the primary motive. Id. at 788.
The same principles govern the deduction
under Treas.Reg.
1.170A-1(g)
expenses
incurred in performing services for a chari
BUMPUS,
al.,
et
Alta
ty.
States,
See Sheffels v. United
Plaintiffs-Appellants,
F.Supp. 85 (E.D.Wash.1967), aff’d, 405 F.2d
v.
(9th
1969)
Cir.
(expressly adopting rea
CLARK,
al.,
Donald E.
et
soning of district court); Tаte v. Commis
Defendants-Appellees.
sioner,
(1973);
Commissioner, No. 77-2883. T.C. Appeals, United Court of
Here, the Tax Court found that the Ninth Circuit. taxpayer’s primary motive was to advance daughter their Tai’s career. This determi Argued and March 1980. Submitted fact, nation is a finding of which may be set Reassigned May 1982. only Allen, aside if clearly erroneous. See July Decided 787; Commissioner, F.2d at Collman v. 1263, 1267(9th 511 F.2d 1975); Cir. Jong De Commissioner, (9th 378-79 1962). *3 Marcus, Portland, Or.,
Michael H. plaintiffs-appellants. Portland, Or., Leahy,
John B. for defend- ants-appellees. HUG, FARRIS,
Before FLETCHER Judges. Circuit FARRIS, Judge: Circuit elderly Plaintiffs are a class of and dis- Manor, abled residents of a nurs- ing operated by home owned and Multno- Cоunty, Oregon mah and licensed as a Title XIX Intermediate Care State Facility. are Defendants Multnomah Coun- of ty, County Multnomah Board Com- missioners, Department of Human Re- Oregon, sources of the and several directors and administrators of various agencies responsible supervising state provision of medical assistance under dispute parties Title XIX. The between the arises out of an announcement Multno- mah it County considering closing is Edgefield Manor. Plaintiffs contend that closure of con- Edgefield Manor would bе XIX, trary to their Title rights under Constitution, United the com- Oregon. mon law seek declar- injunctive event; atory County relief has preventing invol- Multnomah of the latter untary Manor and to transfers and destruction inter- to close decided personal provider. relationships among as a Medicaid residents and withdraw staff, or, between residents and in the alter- Edge- the closure of Plaintiffs contend allowed, native if closure is to be compelling under would violate their field Manor a reasonably prompt decision regarding the is that the They argue Title XIX. future requiring Manor and a provider. continue to act as obligated to that each resident be given notice and an (he alternative, they argue In the evidentiary hearing prior transfer. take over in and The district court plaintiffs’ dismissed or, very at the federal claims under 12(b)(6). Fed.R.Civ.P. least, transfer arrange for a collective The district court then dismissed of residents and keeping group the current pendent state law citing United We conclude that closure staff intact. *4 Gibbs, Mine Workers v. 383 725- plain- would not violate Edgefield Manor 1130, 1138-40, Title XIX. tiffs’ under (1966). We affirm. Plaintiffs have no against claims County under Title XIX. Title XIX
TITLE XIX does not impose any obligations upon Med providers. icaid providers The indepen are Act, 42 Security XIX of the Title Social dent only contractors whose obligations un federal seq., et authorizes 1396 U.S.C. § der the Medicaid program arise out of their help pay for medical grants to the States respective provider agreements. See Ro income and for individuals whose assistance Wood, berson v. 500 F.Supp. (S.D. 860 mеet the costs insufficient to resources are Ill.1980): as- Federal necessary medical services. pro- nowhere regulations Federal law and only available to those States sistance is pa- takes on provider vide that once a to an administra- adopt and adhere tients, from the it can never withdraw satisfying for assistance tive medical by the program unless it is decertified 1396a. The forth in requirements set with- Restrictions on the government. certain specified has government federal only possibly lie рrovider drawal of a can of medical assistance categories minimum patients in the contract between the ... that covered, beyond but which must be provider and the or in state law. adopt reasona- has discretion to each State impose obligations on those Title XIX does how much determining for ble standards in the participate which choose to States provided. will be medical assistance program. Medicaid 1396a(a)(17). 1396d(a), 1396a(a)(10), §§ program is of the Medicaid goal The overаll argument Plaintiffs’ first against pro- participating to enable each is that keep its failure to act to practica- far as medical assistance “as vide open Manor constitutes a viola circumstances in such State.” ble under the plaintiffs’ rights tion of under section Section 1396a(a)(23) to provider. choose their own generally provide The do not The answer to this is contained in Instead, directly. they medical assistance the language 1396a(a)(23) of section itself. provider agreements entеr into with state- Plaintiffs are free to obtain medical assist certified care facilities that are will- health person ance “from institution ... ing providers. to act as health care Provid- . . . qualified perform the service or years, are a term of agreements er for required services . . . who undertakes to provider unless the near-automatic renewal provide him (Emphasis such services.” add satisfy state is decertified for failure to ed.) longer Multnomah no wishes voluntarily requirements or terminates Medicaid serviсes. Plaintiffs’ arrangement. out This arises controversy free longer choice therefore no in- See, eg., Edgefield Manor. See Roberson v. Brede v. Director Department elude Wood, (quoted Health, F.Supp. supra); (9th 1980); at 860 F.2d Cir. Nursing Blum, O’Bannon v. Town Court Yaretsky (2d see also Center, 2467, 1980), grounds, - U.S. reversed on other -, (holding (1980) confer a 1396a(a)(23) section does not has expert One for plain testified recipient on continue to re enter or tiffs that “a of the patients transfer ... [at home). unqualified Edgefield] ceive benefits at an quite probably will result in the deaths of a substantial number of those on certain rely parts Plaintiffs next Record, Vol. patients.” at 276. Plain Rights,” Bill of of the Medicaid “Residents’ any plan tiffs contend medical as 442.311, por those particular C.F.R. § sistance which allows mass transfers under protecting privacy residents’ and free tions presented circumstances such as are interests, 442.311(g)(1) (2) association and here cannot meet the possibly requirement 442.311(i)(1), provisions preventing 1396a(a)(19) that care and serv discharges unless for transfers provided ices be “in a manner consistent 442.311(c)(1)-(3). or nonpayment, reasons with simplicity of administration and the However, pertain these regulations only to recipients.” best interests of the ongoing provision of medical services. Though we unsympathetic are not do not They require the States limit a we conclude provider’s right upon that section expira to withdraw proper provider nor not the avenue for agreement, they tion of *5 1396a(a)(19) their relief. not impose obligations on the States to in Section does quo give plaintiffs a preserve right and the status whenever a substantive to remain provider right exercises its to withdraw at Manor to be as transferred program. the single group from a with full staff to a new facility. 1396a(a)(19) Section is not the sort Plaintiffs’ XIX argument final Title specific for receipt of condition of federal on 1396a(a)(19), pro is based section funds which can said to be create substan- that plan vides a assist recipients. tive in Medicaid See ance must: Hospital Pennhurst and State School provide safeguards may such be neces- Halderman, 1, 17, 24, to assure sary eligibility that for care and 1531, 1540, 1543, (1981): services plan under the will be deter- Congress impose to intends a condi- [I]f mined, and such care and services will be tion on the it grant moneys federal provided in a manner with sim- consistent unambiguously. By insisting must do so plicity of and the best in- administration voice, Congress that with speak a clear terests of the recipients. we enable the exercise their Plaintiffs’ on this provision based cognizant choice knowingly, of the conse- infirm, is not without fоrce. Plaintiffs are quences participation. of their and elderly, variously afflicted with heart (citations Id. at at 1540 omit- disease, disorders, stroke brain syn- chronic ted). They allege drome other disabilities. speaks Manor, 1396a(a)(19) the closure Section to two some- resulting conflicting simplicity of ad- involuntary goals: transfers and de- times of interpersonal struction ministration and best interests of the relationships, will irreparable physical recipients. plan cause emotional and in- a state Whether strikes juries. Thе damage plain- to individuals in proper balance between two is a deci- tiffs’ physical circumstances in terms of Department sion better left emotional deterioration and increased inci- Health and Human and the Services state of mortality dence agencies responsible as a result of “transfer implementing Title trauma” has been recognized by position this and We XIX. are not in to second- other federal courts on numerous occasions. guess balance chosen the buy outs would still cоnstitute a substantial applied time the balance as
Oregon every
hardship
particu-
withdrawal,
on a
voluntary
threatens to work
restraint on
and this
Nor could
group
recipients.
lar
of Medicaid
considerable,
impose
com-
approach
of Health and Human
Department
obligations
ap-
on the
Neither
plex
States.
ambiguous lan-
fairly rely on the
Services
proach
continuity
would assure
of staff or
guage
1396a(a)(19) deprive
of section
Or-
residents, since individual staff and resi-
egon
way
of its Title XIX funds as a
always
go
dents will
be free to
elsewhere.
to take over
or to
force the State
summary,
Oregon’s
In
it is not clear that
clearly required
take
other action not
current medical assistance
is less con-
1396a(a)
pro-
regulations
section
or the
sistent with the dual mandate of section
mulgated thereunder.
1396a(a)(19)
plaintiffs’ implied
than
alterna-
1396a(a)(19) sufficiently
Even if section
is
tives would be.
give
clear to
Medicaid
some sub-
recipients
is
Finally, plaintiffs’ argument
inconsist-
States,
rights against
stantive
section
ent with the result in O’Bannon v. Town
1396a(a)(19)
does not create the
Center,
Nursing
Court
1396a(a)(19)must be
claimed here. Section
That case
legislative
in
scheme
light
considered
of the
patients’
involved certain Medicaid
unsuc-
as a
program
whole. The Medicaid
is not
cessful claim to a constitutional
to a
intended to meet all the medical needs of
hearing
nursing
before their
home could be
Rather,
recipients.
goal
nursing
decertified as a Title XIX skilled
practicable
medical assistance “as far as
case,
fаcility.
Unlike this
under the conditions in
State.”
[each]
rely
O’Bannon did
on section
Supreme
U.S.C.
1396. The
Court relied
§
Still,
1396a(a)(19).
if the States under the
part
phrase appearing
on the same
in 42
best
language
interests
Maryland’s
deciding
U.S.C.
when
obligated
preserve
can be
grant
maximum
rule did not violate the
quo
providers
status
when
withdraw
requirements of
the Aid To Families
voluntarily,
presumably they
then
should
Dependent
(AFDC) Program.
Children
also be
Williams,
Dandridge v.
*6
when withdrawal is involuntary pursuant to
1153,1158,
(1970).
S.Ct.
685 recognize “rights or to transfer of resi- We arrange collective of association are voluntary dents and staff the event of within the ambit pro- constitutional tections withdrawal.1 afforded First and Four-
teenth Amendments.” Gibson v. Florida
539,
Legislative Comm.,
543,
372
83
U.S.
CONSTITUTIONAL RIGHT TO REMAIN
(1963).
S.Ct.
No
AT EDGEFIELD
such associational
are
rights
involved in this
Plaintiffs contend that even if Title
сase.
XIX is
to
nursing
no bar
closure of their
home,
de
involuntary transfers
and
claim that
interference
interpersonal
relationships
struction
“social
fabric” and “culture of
result
contrary
still would be
mutual affection” which exist at
to their
to
constitutional
free associa Manor would violate their constitutional
tion,
treatment,
humane
privacy,
First,
and life.
privacy
ways.
in two
on a
level,
Plaintiffs have not
point
cited
cases on
literal
transfers
to new facilities
support
their claim that either the
Coun would forсe
on a new
depend
ty’s
provider
decision to
as a
strange
withdraw
set of
faces for
intimate care.
State’s failure to
only
Plaintiffs claim that “it is
by reason of
violates their
sensitivity
constitutional
of the
staff and
rights.
pre
mutual affection that
can
residents
humanity
serve their
dignity
even
constitutionally
Plaintiffs’ assertion of a
though many of
are entirely depend
them
protected
interper
maintain their
ent upon staff for the most intimate human
relationships
sonal
with each other and with
Second,
necessities.”
generаlly,
more
staff
on
is based
two lines
plaintiffs claim the forced transfers would
“free association”
cases. The first
line
“right
their
be left
violate
alone.” Plain
cases involves state action intended to hin
in support
privacy argu
tiffs cite
of their
or prevent
der
people
unrelated
from com
ment a line of
process
substantive due
cases
ing together
rights,
further civil
labor
including
Connecticut,
Griswold v.
See,
and other
e.g.,
causes.
NAACP v. But
479,
1678,
(1965);
ton,
415,
328,
371
83
9
U.S.
S.Ct.
L.Ed.2d
Baird,
v.
405
92
Eisenstadt
U.S.
S.Ct.
(1963);
405
Mine Workers of Ameri
United
(1972);
Wade,
Roe v.
ca,
Ass’n,
District 12
Illinois
Bar
35
147
U.S.
L.Ed.2d
L.Ed.2d 426
Cleveland,
(1973); and Moore v. East
(1967);
VanCleave,
Lontine v.
L.Ed.2d 531
1973).
(10th The second line of cases
bearing
These cases have no
on the
regulate
involves various
attempts
mo
facts
instant case. Plaintiffs
*7
rality by discriminating against non-nuclear
seek
privacy
the sort of
at
in
stake
Gris
family
See,
living arrangements.
e.g.,
wold, Roe v. Wade or Moore v.
Cleve
East
Cleveland,
Moore
494,
v. East
97
431 U.S.
they really
land. Nor do
be
want
to
left
1932,
(1977); Doherty
S.Ct.
686 and free stantive
privacy
maintaining
right
association
constitutional
to life. The
an
they
environment where
can continue to
decision in
Supreme Court’s
O’Bannon v.
group
Center,
773,
receive care as a
with their current
Nursing
Town Court
staff. This
inconsistent with
2467,
(1980) (dis-
100
to stay legal at is without prece A CONSTITUTIONAL RIGHT TO dent. Oregon, electing participate PROMPT AND PRE- DECISION Title XIX thereby assuming responsi TERMINATION HEARINGS *8 bility part plaintiffs’ needs, they Plaintiffs contend that even if did not constitutionally become bound to statutory have no or constitutional provide the additional increment of care Edgefield, they remain at still are entitled services, required by Title XIX process under Title XIX and federal due itself, that would be necessary requirements reasonably prompt to a final the status quo Edgefield at Manor. by and, decision if the final
Plaintiffs also claim that
the deci
Edgefield,
decision is to close
to individual
sion to
Edgefield implicates
close
their sub- pretermination hearings to assure that
784-89,
the move is
preparation
individually
tai-
gon’s plan for medical assistance defective cretion, not of plaintiff’s right... . simply because it require fails to the Coun- Needless decisions of state law should be ty to make prompt regarding decision avoided.... Certainly, if the federal Edgefield’s future. No one is being denied claims trial, are dismissed before even medical assistance phrase as that is used in though not jurisdiction insubstantial in a sense, al the state claims should be dis Plaintiffs’ claim that they are entitled to missed as well. pretermination individual hearings is based We find no abuse of discretion. Plaintiffs on 42 431.220(a) (state C.F.R. agency pursue should their state law claims in state must grant hearing any applicant who court. requests a hearing because he believes the agency terminated, has suspended or re- CONCLUSION duced his Medicaid eligibility or services Plaintiffs’ statutory federal and constitu- erroneously) and the Due Process Clause of tional properly claims were dismissed under
the United States Constitution. Plаintiffs’ 12(b)(6). Fed.R.Civ.P. Plaintiffs have nei- claim is squarely answered O’Bannon v. ther a federal right substantive to remain Town Nursing Center, Court 447 U.S. at Edgefield Manor nor a federal procedur- (1980), first al hearings prior to individual by making clear that a transfer without transfer. The district court did not abuse interruption or reduction in the level of its discretion dismissing plaintiffs’ when payments assistance does not constitute a pendent state common law claims. reduction or termination in Medicaid serv- AFFIRMED. ices within meaning of the Medicaid regulations, and second by making clear FLETCHER, Circuit Judge, dissenting: that residents do not have constitution- ally protected expectation property inter- I respectfully dissent from the majority est in receiving care and services at a health opinion because this case is moot and no care facility is no longer qualified or controversy” “case or presently exists over willing to participate as a provider. jurisdiction.1 See id. which this court has 1. No may formal motion for dismissal has been filed issues such as mootness be raised sua party. Hоwever, plaintiffs sponte by either Sugar in the the court. See Western Great present Suggestion Nelson, case have filed a of Moot- Co. supporting ness with (1979) (Suggestion affidavit. Jurisdictional L.Ed.2d 735 of Mootness *9 originally filed this action seek-
ing declaratory injunctive relief from JONES, Edgar Edwin the threatened closure of Manor. Petitioner-Appellant, According Manor is now closed. plaintiffs’ to affidavit filed attor- neys, the last resident of was Norman HESS and State of Oklaho to another nursing facility transferred ma, Respondents-Appellees. itself, 20, Edgefield, April was сlosed on No. 80-2214. Moreover, Edge- the ultimate closure Appeals, Court of United States field Manor occurred with full Tenth Circuit. provided assistance. Plaintiffs 1, 1982. June with much of the technical information nec essary to minimize the risk of harm inher patient
ent in these They negoti transfers.
ated the conditions each of the transfers County according
with the to rules which
plaintiffs pro counsel were successful
moting Oregon for all nursing home resi
dents. Accordingly, remedy sought by no in this suit remains to be
granted. The “federal courts are without
power questions to decide that cannot af
fect the rights litigants in the case be ” Rice, fore them. North Carolina v. 244, 246,
U.S. 30 L.Ed.2d S.Ct. during pendency When appeal
an events occur such as those de possibility
scribed here that obviate the relief,
meaningful the court must dismiss moot, appeal as Odegaard, DeFunis v.
416 U.S.
(1974), judgment and vacate the lower court well, Nelson,
as Sugar Great Western v.Co.
(1979). Under certain limited circumstanc
es a justiciable though case remains moot,
issue before the wit: court
challenged action is too brief duration to
be fully litigated prior to its cessation or
expiration expec and there is a reasonable
tation complaining party will be
subject again. to the same action First Bellotti,
National Bank of Boston v.
(1978). No such circumstances exist here.
I would therefore appeal dismiss the judgment
moot and vacate the of the dis
trict court. by party); Odegaard, requested by filed DeFunis v. ties the court to brief the issue of (1974) mootness). (par- 94