Unpublished Dispositionnational Kidney Patients Ass'n, et al., Appellees v. Louis W. Sullivan, M.d., et al., Appellants, 896 F.2d 599 (D.C. Cir. 1990)

On February 1, 1990, the Omnibus Budget Reconciliation Act of 1989 ("OBRA") went into effect. OBRA Section 6203(b) (1) amends Section 1881(b) (7) of the Social Security Act (42 U.S.C. § 1395rr(b) (7)) to limit the amount of payment for hemodialysis equipment and supplies under Method II to the composite Method I rate received by hospital-based facilities. This provision permits HHS to calculate home-dialysis reimbursements in precisely the manner prohibited by the district court in its preliminary injunction. Accordingly, it appears that the preliminary injunction in this case has been mooted by OBRA.

The only question presented to this Court on this appeal is whether the preliminary injunction was properly granted. Given that OBRA seems to have mooted the preliminary injunction, the precise issue for appeal may no longer be susceptible to judicial resolution. See University of Texas v. Camenisch, 451 U.S. 390 (1980).

For this reason WE ORDER the parties to show cause why this appeal should not be dismissed as moot. Counsel for both parties are ordered to submit written memorandum of no more than five pages on this issue within ten days of the issuance of this Order.