author: DENNIS, Circuit Judge:

text:
    David F. COURY, Plaintiff-Appellee, Cross-Appellant, v. Alain PROT, Defendant-Appellant, Cross-Appellee.
    Nos. 94-20084, 94-20694.
    United States Court of Appeals, Fifth Circuit.
    June 19, 1996.

      D. Scott Funk, J. Cary Gray, Looper, Reed, Mark and McGraw, Houston, TX, for Coury.
    Thomas Donald Moran, Schneider & McKinney, Houston, TX, for Prot.
    Before GARWOOD, SMITH and DENNIS, Circuit Judges.
   DENNIS, Circuit Judge:

In this case David Coury, a citizen of California, sued Alain Prot, a dual citizen of the United States and France, in a Texas state court to recover for damages resulting from breach of contract and fraud. Prot removed the action to the federal district court pleading that he was a dual citizen of France and the United States domiciled in France and therefore entitled to remove this action under the alienage provision of diversity jurisdiction, 28 U.S.C. § 1332(a)(2). After a jury trial, the trial court dismissed Coury’s fraud claim but submitted the balance of his ease to the jury, which returned a verdict awarding Coury $164,500 including attorney’s fees plus post-judgment interest based on Prot’s breach of contract. Subsequently, the court denied Prot’s post verdict motions and granted Coury’s motion for turnover of two parcels of Prot’s Texas property in satisfaction of the trial court’s judgment implementing the jury award.

Prot appealed from the main judgment of the trial court and from its turnover order contending: (1) the district court lacked diversity jurisdiction under the alienage provision because when the suit was commenced and removed Prot was a dual citizen of the United States and France domiciled in France; (2) the district court erred in denying Prot’s post verdict motion for leave to amend his answer to add the affirmative defense that the contract sued upon by Coury was illegal; (3) Prot’s Texas parcels of property were exempt from turnover and forced sale under the state constitutional and statutory homestead exemptions.

Coury filed a cross appeal seeking prejudgment interest and, in the event of reversal of the breach of contract award, to overturn the trial court’s dismissal of his fraud claim.

Upon its initial consideration of the appeals, a different panel of this court concluded that based on the record presented for its review it could not determine whether Prot’s domicile at the time the complaint was filed was in France or in Texas. For purposes of diversity jurisdiction, only the American nationality of a dual national is recognized. Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 507 (2nd Cir.1991) cert. denied, 503 U.S. 1006, 112 S.Ct. 1763, 118 L.Ed.2d 425 (1992); see also Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980) (“only the American nationality of the dual citizen should be recognized under 28 U.S.C. § 1332(a)”). An American national, living abroad, cannot sue or be sued in federal court under diversity jurisdiction, 28 U.S.C. § 1332, unless that party is a citizen, i.e. domiciled, in a particular state of the United States. 1 J. Moore, Moore’s Federal Practice § 0.74[4] (1996). Thus, Prot’s initial claim of diversity jurisdiction under the alienage provision was invalid. Furthermore, if Prot was found to be domiciled abroad, he would not be a citizen of any state and diversity of citizenship would also fail. However, if the district court determined that Prot was domiciled in Texas at the time the suit was filed and removed, although removal may have been improper, subject matter jurisdiction would not be lacking. Coury v. Prot, slip op. at 2, 3, 40 F.3d 385 (5th Cir. Nov. 3, 1994) (unpublished per curiam) (citing Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972)). Accordingly, the panel remanded the case to the district court for it to determine whether subject matter jurisdiction existed, with directions to vacate its judgment if jurisdiction was lacking or to return the case to this court if jurisdiction existed. Coury v. Prot, slip op., 40 F.3d 385 (5th Cir.1994) (unpublished per curiam).

On remand, the trial court conducted an evidentiary hearing, determined that Prot was domiciled in Texas when the suit was filed in state court in May, and removed in June, of 1992, and that jurisdiction existed. The trial court returned the ease to this court.

Jurisdiction

The district court correctly determined that subject matter and diversity of citizenship jurisdiction exists. Prot was domiciled in Texas when the state court action was commenced and when he removed the case to federal court. Although in 1992 Prot had physically moved himself, his family and his business to France, he had not formed an intention to remain there.

Article III, § 2 of the Constitution provides that the judicial power of the United States shall extend, inter alia, to controversies “between Citizens of Different States” and to controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” These provisions constitute the authority for the grant of “diversity” and “alienage” jurisdiction, respectively. 1 J. Moore, Moore’s Federal Practice § 0.71[1] (1996).

It is axiomatic that the federal courts have limited subject matter jurisdiction and cannot entertain cases unless authorized by the Constitution and legislation. Id. at 5.-1]. The parties can never consent to federal subject matter jurisdiction, and lack of such jurisdiction is a defense which cannot be waived. Fed.R.Civ.P. 12(h)(3); See City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 20, 86 L.Ed. 47 (1941). Accordingly, there is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court. See, e.g. Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir.1984); 1 J. Moore, Moore’s Federal Practice § 0.71[5.-1] (1996).

What makes a person a citizen of a state? The fourteenth amendment to the Constitution provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” United States Const. amend. XIV, § 1. However, “reside” has been interpreted to mean more than to be temporarily living in the state; it means to be “domiciled” there. Thus, to be a citizen of a state within the meaning of the diversity provision, a natural person must be both (1) a citizen of the United States, and (2) a domiciliary of that state. Federal common law, not the law of any state, determines whether a person is a citizen of a particular state for purposes of diversity jurisdiction. 1 J. Moore, Moore’s Federal Practice, § 0.74[1] (1996); e.g., Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974).

Consistent with general principles for determining federal jurisdiction, diversity of citizenship must exist at the time the action is commenced. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 2221, 104 L.Ed.2d 893 (1989). In cases removed from state court, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court. See, e.g., Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir.1986). If diversity is established at the commencement and removal of the suit, it will not be destroyed by subsequent changes in the citizenship of the extant parties. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1114 n. 1, 1 L.Ed.2d 1205 (1957); Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824); 1 J. Moore, Moore’s Federal Practice, § 0.74[1] (1996).

The lack of subject matter jurisdiction may be raised at any time during pendency of the case by any party or by the court. Fed.R.Civ.P. 12(h)(3). Moreover, the Supreme Court has held that a party cannot waive the defense and cannot be estopped from raising it. E.g., Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Obviously, these principles can result in a tremendous waste of judicial and private resources. The general reaction is that this waste is simply a price that must be paid for federalism. 1 J. Moore, Moore’s Federal Practice § 0.74[1] (1996). Some cases cry out for an exception to the rules, for example, when a party who invokes federal jurisdiction recants his original jurisdictional allegations or “discovers” that there was no diversity after all after suffering a loss on the merits. Id. So far, however, the traditional rule stands firm despite the urging of commentators for doctrines of estoppel or waiver to bar litigants from “playing fast and loose with the judicial machinery” and using the federal courts’ limited subject matter jurisdiction in bad faith. Id. at n. 29. A few circuits have demonstrated a willingness to do so only to be repudiated by intervening Supreme Court decisions. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-18, 71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951); City of Brady, Texas v. Finklea, 400 F.2d 352, 357-358 (5th Cir.1968); Di Frischia v. New York Cent. R.R., 279 F.2d 141, 141-144 (3rd Cir.1960); Klee v. Pittsburgh & W. Va. Ry. Co., 22 F.R.D. 252, 252-255 (W.D.Pa.1958).

Jurisdictional matters are to be decided by the court, although the court may, in its discretion, submit to the jury contested factual issues involving the presence of diversity of citizenship, to be used as an advisory determination. E.g. Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir.1967). As long as the trial court applies the correct standard of law, its findings as to the citizenship of the parties will be upheld on appeal unless they are clearly erroneous. Fed.R.Civ.P. 52(a); see, e.g., Village Fair Shopping Center Co. v. Sam Broadhead Trust, 588 F.2d 431 (5th Cir.1979) (fact finding regarding principal place of business of corporation not clearly erroneous); 1 J. Moore, Moore’s Federal Practice § 0.74[1] (1996).

In making a jurisdictional assessment, a federal court is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties. See, e.g. Jones v. Landry, 387 F.2d 102 (5th Cir.1967); 1 J. Moore, Moore’s Federal Practice § 0.74[1] (1996). The court has wide, but not unfettered, discretion to determine what evidence to use in making its determination of jurisdiction. See Ray v. Bird & Son & Asset Realization Co., 519 F.2d 1081 (5th Cir.1975).

A person cannot be a “citizen” of a state unless she is also a citizen of the United States. See e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Mas v. Perry, 489 F.2d 1396 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). A United States citizen who is domiciled in a state is a citizen of that state. See Robertson v. Cease, 97 U.S. 646, 648-650, 24 L.Ed. 1057 (1878). Thus, with few exceptions, state citizenship for diversity purposes is regarded as synonymous with domicile. E.g., Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027 (1st Cir.1988); 1 J. Moore, Moore’s Federal Practice § 0.74[3] n. 3. Accordingly, it has been held consistently that a diversity suit may not be maintained under 28 U.S.C. § 1332(a)(1) by or against a United States citizen who is domiciled in a foreign country, for a resident of a foreign country is not necessarily a citizen thereof. Smith v. Carter, 545 F.2d 909 (5th Cir.) cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977). Moreover, an American living abroad is not by virtue of that domicile a citizen or subject of the foreign state in which he resides so as to permit invocation of the alien-age jurisdiction prescribed in 28 U.S.C. § 1332(a)(2) of the Judicial Code. 13B Wright-Miller-Cooper, Federal Practice & Procedure § 3621 (1984).

Furthermore, there is an emerging consensus among courts that, for a dual national citizen, only the American citizenship is relevant for purposes of diversity under 28 U.S.C. § 1332. Consequently, diversity jurisdiction may be properly invoked only when a dual citizen’s domicile, and thus his citizenship, is in a state diverse from that of adverse parties. See Action S.A. v. Marc Rich & Co., 951 F.2d 504 (2nd Cir.) cert. denied, 503 U.S. 1006, 112 S.Ct. 1763, 118 L.Ed.2d 425 (1992); Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir.1992); Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980); Las Vistas Villas, S.A. v. Petersen, 778 F.Supp. 1202 (D.C.Fla.1991) (affirmed by 13 F.3d 409 (11th Cir.1994)); Liakakos v. CIGNA Corp, 704 F.Supp. 583 (E.D.Pa.1988); See also Maple Island Farm, Inc. v. Bitterling, 196 F.2d 55 (8th Cir.) cert. denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952). Accordingly, the dual citizen should not be allowed to invoke alienage jurisdiction because this would give him an advantage not enjoyed by native-born American citizens. Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980); Soghanalian v. Soghanalian, 693 F.Supp. 1091 (D.C.Fla.1988); Liakakos v. CIGNA Corp., supra. The latter conclusion is sound according to 1 Moore’s Federal Practice § 0.74[4], because the major purpose of alienage jurisdiction is to promote international relations by assuring other countries that litigation involving their nationals will be treated at the national level, and alienage jurisdiction is also intended to allow foreign subjects to avoid real or perceived bias in the state courts — a justification that should not be available to the dual citizen who is an American. See also 13B Wright-Miller-Cooper § 3621 (1984).

A change in domicile typically requires only the concurrence of: (1) physical presence at the new location and (2) an intention to remain there indefinitely; 13B Wright-Miller-Cooper, Federal Practice and Procedure § 3613 (1984), citing, inter alia, Stine v. Moore, 213 F.2d 446 (5th Cir.1954); Paudler v. Paudler, 185 F.2d 901 (5th Cir.) cert. denied, 341 U.S. 920, 71 S.Ct. 742 (1950); or, as some courts articulate it, the absence of any intention to go elsewhere. 13B Wright-Miller-Cooper § 3613 n. 3. Thus, a person who has the clear intent to change domicile does not accomplish the change until he is physically present in the new location with that intent. On the other hand, mere presence in a new location does not effect a change of domicile; it must be accompanied with the requisite intent. In most cases, the difficult issue is not presence but whether the intent to change domicile can be shown. 1 J. Moore, Moore’s Federal Practice § 0.74[3.-1] (1996).

A person’s domicile persists until a new one is acquired or it is clearly abandoned. Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Mas v. Perry, 489 F.2d 1396 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). There is a presumption in favor of the continuing domicile which requires the party seeking to show a change in domicile to come forward with enough evidence to that effect to withstand a directed verdict. Lew v. Moss, 797 F.2d at 751. While some opinions seem to imply that the burden of persuasion rests with the party attempting to show a change of domicile, this is an overstatement. The proper rule is that the party attempting to show a change assumes the burden of going forward on that issue. The ultimate burden on the issue of jurisdiction rests with the plaintiff or the party invoking federal jurisdiction. 1 J. Moore, Moore’s Federal Practice § 0.74[3-3], n. 8, (1996) citing Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966); Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir.1980).

In determining a litigant’s domicile, the court must address a variety of factors. No single factor is determinative. The court should look to all evidence shedding light on the litigant’s intention to establish domicile. The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family. See Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Hendry v. Masonite Corp., 455 F.2d 955 (5th Cir.) cert. denied, 409 U.S. 1023, 93 S.Ct. 464, 34 L.Ed.2d 315 (1972); 1 J. Moore, Moore’s Federal Practice § 0.74[3.-3] n. 18 (1996) (citing authorities). A litigant’s statement of intent is relevant to the determination of domicile, but it is entitled to little weight if it conflicts with the objective facts. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.1985); Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th Cir.) cert. denied, 409 U.S. 1023, 93 S.Ct. 464, 34 L.Ed.2d 315 (1972).

Most courts regard domicile as presenting a mixed question of law and fact. E.g., Village Fair Shopping Center Co. v. Sam Broadhead Trust, 588 F.2d 431, 433 (5th Cir.1979). Nevertheless, in practice, the district court’s determination of domicile is reviewed on appeal as a question of fact; it will be upheld unless “clearly erroneous.” 1 J. Moore, Moore’s Federal Practice § 0.74[3.-3] n. 29 and authorities cited therein.

Applying these precepts to the case at bar, we conclude that there was no clear error in the district court’s determination that Prot was domiciled in Texas when the action was initially filed and when he removed it to federal court. Accordingly, the district court’s conclusion that diversity and subject matter jurisdiction exist in this case was also correct.

Because Prot twice recanted his statement as to whether he intended to establish domicile in France the trial court was entitled to regard his representations as lacking in candor and credibility. Originally, in Prot’s notice of removal filed on June 29, 1992, he represented to the court that he was “a dual-citizen both of France and the United States however, significantly prior to the time that suit was filed against him he became domiciled in France.” Later, after Corny obtained judgment against Prot and moved to have Prot’s Texas parcels of real estate turned over, Prot filed an affidavit in connection with the court’s hearing on the turnover motion on August 8, 1994. In the affidavit, Prot recanted his pleading that he was domiciled in France, averring that he never intended to live permanently in France or to abandon his Texas home; that his intention was always to return to his homestead in Texas. His affidavit further provided that in late 1990 a bottled water business opportunity in France caused him to begin commuting between Texas and France; his wife resided full time in their Bellaire, Texas home as late as April 1991; in June 1991 he and his wife moved temporarily to France due to increased demands of his business; neither he nor his wife ever established a permanent residence in France; his wife returned to Texas for over a year from the summer of 1992 until September 1993; in the meantime he had been leasing the Bellaire house for no longer than eighteen-month terms; he and his wife intended to return to Bellaire some day so she could resume work at the Texas Medical Center; he would not be willing to sell the Bellaire property; he filed a voluntary designation of homestead on the Bellaire property in March 1994; he did not know when he would be able to return to the United States — stating the bottled water business had already taken a year and a half longer than he planned; because the quarters in which he resided near the natural springs were about forty miles by mountain roads to the school his children attended, his wife and children reside in Limoges, France, while he lives on the property where the business is located — an arrangement he assured the court was totally unsatisfactory as a permanent home.

Finally, in Ms first appeal to tMs court in 1994, Prot asserted that the district court may have lacked subject matter jurisdiction, viz., no diversity jurisdiction. On remand from tMs court, at the evidentiary hearing held by the district court to determine whether jurisdiction exists, Prot recanted the testimony m Ms sworn affidavits at the hear-mg on the turnover motion. In support of the proposition that he was not domiciled m Texas m May and June of 1992, at the time the suit was filed and removed, Prot testified that it was “primarily” Ms wife’s wish to return to the Urnted States, thereby implyrng he had no such desire; that their return to Texas was contingent on the success of the bottling water business; that he had characterized their move to France as “temporary” m earlier statements only because his wife did not wish to live in France permanently; and his intention to return to Texas was nothing more that an indefmite plan for the future. On cross exammation Coury’s attorney asked Prot about the “dozen occasions” Prot testified that it was Ms “constant intent to return to Texas some day, throughout the time [Prot] left Texas until the present.” In response, Prot mdicated that he had testified so because that was what he had told Ms wife. The record does not mdieate that Prot otherwise tried to reconcile the conflictmg testimony.

Based on the evidence of record, much of which consisted of Prot’s conflictmg statements and actions, the district court found that Prot established a domicile in Texas in 1987, that he physically moved himself and Ms family to France m 1991 to avoid transatlantic commutmg, but that the evidence failed to show an essential requisite of a change in domicile, viz., that he formed an intention m 1991 or 1992, prior to the filing of the complaint and the removal of this case, to remain in France mdefimtely. In view of Prot’s repeated statements that he and his wife did not rntend to stay in France indefimtely and that they always mtended to return to Texas, we conclude that the district court’s findmgs were not clearly erroneous.

Furthermore, the trial court applied the correct principles of law to these facts m concluding that diversity jurisdiction exists. Because Prot’s domicile was determined to be Texas at the time the suit was filed and removed, while Coury’s domicile was in California, diversity of citizenship existed between the two parties pursuant to 28 U.S.C. § 1332(a)(1). The removal was improper, however, because a defendant may not remove a state action to federal court if a defendant is a citizen of the state in wMch the action is filed. 28 U.S.C. § 1441(b). Corny waived tMs defect, however, by Ms failure to seek a remand of the action to state court witMn 30 days of removal. 28 U.S.C. § 1447(e). Nevertheless, although removal may have been improper, subject matter jurisdiction is not lacking. Grubbs v. General Electric Credit Gorp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972) (“Longstanding decisions of tMs Court make clear, however, that where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue m subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had origmal jurisdiction of the case had it been filed in that court.”).

Homestead Exemption

The district court did not clearly err m determining that at the time the motion for turnover of Prot’s Texas properties was filed m March 1994, Prot’s Bellaire, Texas property was no longer protected from turnover and forced sale by the Texas homestead exemption. Prot began commuting to France from Texas m 1991 and by 1994, he and Ms family had lived in France contmuously for over two years. He had purchased at least two properties and established a permanent and primary residence on one of them. It was plausible for the trial court to conclude that after the success of Ms business had been delayed one and one-half years beyond Ms original plans, and Ms wife and children rejoined him m France in September of 1993, and he established for them a home near the children’s school m Limoges, France, the Prots had established a new homestead in France and had abandoned their homestead m Bellaire, Texas prior to the turnover proceedings in 1994.

The question of whether there has been an abandonment of a homestead is to be determined from all the pertinent facts and circumstances of each particular ease as it arises. Coleman v. Banks, 349 S.W.2d 737, 739 (Tex.Civ.App.1961) (application for writ of error refused, no reversible error); Hix v. De Phillipi, 216 S.W.2d 643, 645-646 (Tex.Civ.App.1948) (application for writ of error refused, no reversible error). A homestead exemption may be lost or abandoned by a removal from the premises under circumstances clearly indicating that the removal is not merely temporary. A homestead claimant is not required to remain on the premises at all times, and he does not necessarily lose, forfeit or abandon his homestead rights merely by removing or being absent from the premises when the absence is temporary. McFarland v. Rousseau, 667 S.W.2d 929 (Tex.Ct.App.1984). However such absence is a matter properly to be considered, in connection with other circumstances, in determining the question of abandonment. Carver v. Gray, 140 S.W.2d 227 (Tex.Civ.App.1940) (application for writ of error dismissed, judgment correct).

Generally, in order to constitute an abandonment of a homestead by a removal from the premises, the removal must be accompanied by the intent never to return to occupy the premises as a homestead. See Coyel v. Mortgage Bond Co. of New York, 124 S.W.2d 204 (Tex.Civ.App.1939). A removal from a property constituting a homestead does not cause an abandonment of the homestead where the owner has an unqualified, fixed, and abiding intention to return to the property and occupy it as a homestead, where such intentions remain at all times, and no other homestead is acquired. City National Bank of Bryan v. Walker, 111 S.W.2d 350 (Tex.Civ.App.1937) (application for writ of error dismissed for want of jurisdiction) (The court found Walker had not abandoned his homestead though it had been vacated when he moved to another state, because Walker had not purchased another homestead, had left all furnishings in the house, and had retained his lodge, church and other affiliations in Bryan). Nevertheless, the element of lapse of time the owner has remained away is a matter to be considered, and if the absence is prolonged, it may, if there is no evidence of a fixed intention to return, constitute an abandonment. In re Nelson, 134 B.R. 838, 845-846 n. 3 (Bankr.N.D.Tex.1991) (“If a homestead claimant has remained away from home a prolonged period of time, an intention of no interest to return may be inferred.”); see also Tuerpe v. George Saunders Live Stock Commission Co., 245 S.W. 741, 742 (Tex.Civ.App.1922) (writ of error dismissed or refused) (“while in this ease the Tuerpes were vigorous in their denial of any intention to abandon the ranch homestead, we cannot say ... that this evidence was not overcome by their admissions and conduct over a period of several years and we perceive no reason why we should set aside the ... findings of the trial judge against [the Tuerpes]”).

Although a homesteader who has removed from the premises with no intention to return may change his intention to resume possession and thereby reinvest the property with the homestead character, such resumption of possession has only the effect of creating a new homestead right from the time of the new occupancy, or immediately prior to occupancy as long as the claimant has a fixed time in the near future that he will occupy the homestead. However, the resurrection of the homestead right in the property does not affect the rights of third persons acquired in the interim between the loss of the old and the acquisition of the new. See Zimmer v. Pauley, 51 Wis. 282, 8 N.W. 219, 221 (1881) (where overt acts by plaintiff supported redemption of possibly abandoned homestead just prior to the date of judgment against plaintiff, and thus the plaintiff’s property was protected from the judgment); Kaes v. Gross, 92 Mo. 647, 3 S.W. 840, 842 (1887) (“If [a homestead exemption] be once lost, and possession of the homestead be again resumed, such resumption of possession will only have the effect of giving origin to a new homestead right, bearing date from the new occupancy, and having no retroactive validity on the old right lost by abandonment, and possessing no force against the rights of third persons acquired in the interim between the loss of the old and the acquisition of the new right.”).

Since no one can own two homesteads at the same time, if the debtor acquires a new homestead, he thereby abandons and loses his homestead rights in the former place of residence. Norman v. First Bank & Trust, Bryan, 557 S.W.2d 797, 801 (Tex.Civ.App.) (application for writ of error refused, no reversible error, 1978). The best evidence of the abandonment of a former homestead is the fact that a new and permanent home has been acquired, and appropriated as such. Panhandle Const. Co. v. Wiseman, 110 S.W.2d 615, 617 (Tex.Civ.App.1937) (application for writ of error dismissed for want of jurisdiction) (“[t]here is no rule of law better established in Texas than that possession and use of real estate by one who owns it, and who, with his family, resides upon it, makes it the homestead of the family in law and in fact, and it has been repeatedly held by the courts of this state that the best evidence of the abandonment of a former homestead is the fact that a new and permanent home has been acquired and appropriated as such.”). The removal of the owners from one property to another, and the occupancy and use of the latter property as a homestead, unaccompanied by any act evidencing an intention to return to the former home, silently, but effectively, proclaims the latter property to be their homestead and constitutes the highest and most conclusive evidence of abandonment of the former property as a homestead. Norman v. First Bank and Trust, Bryan, 557 S.W.2d 797, 800-802 (Tex.Civ.App.) (application for writ of error refused, no reversible error, 1978) citing, inter alia, Hinton v. Uvalde Paving Co., 77 S.W.2d 733 (Tex.Civ.App.1934) (application for writ of error refused).

Whether land claimed for homestead exemption was used principally for residential purposes or otherwise is a question of fact for the determination of the jury. Continental Inv. Co. v. Schmeich, 145 S.W.2d 219, 221 (Tex.Civ.App.1940) (application for writ of error refused). However, whether a subject property has been impressed with the character of homestead is based on findings of fact and conclusions of law. Caulley v. Caulley, 806 S.W.2d 795 (Tex.1991). Abandonment of a homestead is a question of fact to be determined in each case from the entire evidence before the court. Coleman v. Banks, 349 S.W.2d 737, 741 (Tex.Civ.App.1961) (application for writ of error refused, no reversible error). Proof that a new homestead has been acquired establishes abandonment of the old homestead as a matter of law. Norman v. First Bank & Trust, Bryan, 557 S.W.2d 797, 800 (Tex.Civ.App.) (application for writ of error refused, no reversible error, 1978). This Court accepts a district court’s finding of fact unless they are clearly erroneous — “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”, Fed.R.Civ.P. 52(a) — and this court reviews issues of law de novo. State Savings and Loan Assn. v. Liberty Trust, 863 F.2d 423 (5th Cir.1989). The burden of showing that the findings of the district court are clearly erroneous is heavier if the credibility of witnesses is a factor in the trial court’s decision. Village Fair Shopping Center v. Broadhead, 588 F.2d 431, 434 n. 2 (5th Cir.1979).

Applying these precepts to the ease at bar, we conclude that the district court did not err in determining that by 1994 Prot had established a new homestead in France, no longer having the requisite intent to maintain the Bellaire, Texas property as his homestead, and in concluding that the Bellaire Boulevard property was not protected at that time from turnover and forced sale by the Texas homestead exemption.

The evidence before the court consisted of two depositions of Prot, taken in 1992 and 1994, and an affidavit submitted by Prot in lieu of an appearance at the evidentiary hearing on jurisdiction on remand. When Prot initially moved to France in 1991 to manage his bottle water company, though he also moved his wife and children and their residential belongings, he anticipated having the business up and running in eighteen months. His wife moved back to San Antonio, Texas in the summer of 1992 and worked there until the fall of 1993. At that point Prot admits that his business was not developing as successfully as possible and his wife and children moved back to France to join him in September 1993. Prot’s intention to return to Texas within eighteen months was no longer realistic. He remodeled an apartment on the property where the spring water was located and Prot’s family settled into a home 40 miles away in Limoges near the children’s school. When the motion for turnover was filed in 1994, Prot and his family had not lived at the Bellaire Boulevard property for three years; Prot discontinued his Texas mailing address in 1993; he had lost his homestead property tax treatment on the Bellaire, Texas property; he evidently did not file a homestead declaration for the Bellaire property until after Coury moved for its turnover; he was unsure of whether he still maintained an active checking account in Texas, indicating little if any use of the account if it existed; he had stated in a 1992 deposition that he did not have any intention of making his primary residence in the United States at any time in the future, though later he stated that English was not his primary language and that he may not have understood the question; and Prot continuously leased out the Bellaire property after his initial move to France in 1991. In addition, Prot declared to the French Consulate that he lived in France “full-time”; he maintained active cheeking and savings accounts in French financial institutions; in addition to operating the bottling business, Prot is a “French farmer” in the timber and hay businesses; and he admitted at the evidentiary hearing in 1994 to determine where he was domiciled that he “purchased land in France and move[d] his family into a home that was prepared for the use as a home”.

We find no clear error in the district court’s determination that prior to 1994 Prot created a new homestead in France and abandoned his Texas homestead, subsequent to which the Texas property was not protected by the homestead exemption.

Other Issues

For the reasons assigned by the trial court, we affirm the trial court’s determination that Prot waived by not pleading the affirmative defense of illegality of the contract and find no abuse of discretion in the court’s denial of Prot’s post-verdict motion for leave to amend his answer to plead the affirmative defense of illegality of contract. Fed.R.Civ.P. 8(c). Also, it appears that Coury may be entitled to an award of prejudgment interest. Cavnar v. Quality Control Parking, 696 S.W.2d 549 (Tex.1985); see also Concorde Limousines, Inc. v. Moloney Coachbuilders, Inc., 835 F.2d 541, 548-550 (5th Cir.1987) (for discussion of the development of Texas law concerning prejudgment interest). The district court failed to rule on this claim. Accordingly, this case will be remanded to the trial court for adjudication of this issue.

The judgment of the trial court is AFFIRMED, in part, but the case is REMANDED in part to that court for its determination of Corny’s prejudgment interest claim.

      . Bellaire, Texas is a small municipal corporation located in the center of Houston, Texas.


source: Caselaw Access Project

author: MERRITT, Chief Judge.

license: Public Domain

text:
    In re THE CINCINNATI ENQUIRER, a division of Gannett Satellite Information, Inc., Petitioner.
    No. 96-3627.
    United States Court of Appeals, Sixth Circuit.
    Decided June 7, 1996.

      John A. Flanagan, John C. Greiner, Gray-don, Head & Ritchey, Cincinnati, OH, for Petitioner.
   ORDER

MERRITT, Chief Judge.

The petitioner, the Cincinnati Enquirer, a daily newspaper, has filed an emergency petition for a writ of mandamus requiring the Honorable Arthur Spiegel to permit public access to a summary jury trial proceeding now under way in his court in the case of Morris, et al. v. Voinovich, et al, No. C-1-93-436. The Morris case involves a class action arising from a large prison riot in an Ohio prison. A jury will be empaneled to hear the lawsuit which will be conducted in a regular courtroom in the Cincinnati Courthouse by a federal judge.

A single judge has considered this emergency petition pursuant to Rule 27, Fed. RApp.P. and enters the following order pending final disposition of the case on the merits:

(1) The parties to the case in the court below should file with this court no later than Monday, June 17, 1996, by 5:00 P.M., an answer stating their respective positions in this matter.
(2) Judge Spiegel is requested to file an answer to the petition for writ of mandamus pursuant to Rule 21(b) Fed.RApp.P.
(3) In the interim, prior to a ruling on the merits on the petition for writ of mandamus by the U.S. Court of Appeals for the Sixth Circuit, the district court shall not further conduct the summary jury trial proceedings in the case of Morris, et al. v. Voinovich, et al., supra, without permitting public access, including access by the press, to the proceedings.

It is contrary to centuries of Anglo-American jurisprudence to conduct jury trials in secret. The Court finds that there is a substantial likelihood of success on the merits by the petitioner for the writ of mandamus, that a broad public interest is at stake and lends support to the position of the petitioner and that absent such access the secrecy order denying public access may cause irreparable harm and could result in a prior restraint prohibited under the First Amendment should the District Court implement its order of further restraints on publication. See Brown and Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir.1983); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir.1996). See also Day v. NLO, Inc., 147 F.R.D. 148, 152 (S.D.Ohio 1993). The preliminary conclusion that the petitioner is likely to succeed on the merits on the petition for writ of mandamus is based on the general principle stated in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), guaranteeing the public under ordinary circumstances the right to be present during proceedings in federal court and allowing the closing of a federal courtroom only in the most exceptional circumstances. The district court, therefore, shall not conduct further proceedings in the above-mentioned case while denying public access to the summary jury trial proceeding in question until the U.S. Court of Appeals for the Sixth Circuit has had an opportunity to adjudicate the petition for a writ of mandamus on the merits.

The case of Cincinnati Gas & Electric Co. v. General Electric Co., 854 F.2d 900 (6th Cir.1988) (a 2 to 1 ease with Judge Edwards dissenting), is inconsistent with the Procter & Gamble v. Bankers Trust case, supra, and the case of In re NLO, 5 F.3d 154 (6th Cir.1993), which are later cases. This Court had not issued its writ of mandamus in In re NLO, 5 F.3d 154, supra, outlawing compulsory summary jury trials in the Sixth Circuit when the Cincinnati Gas case was decided. In that case also the district judge had ordered a summary jury trial, and one party was unwilling to participate unless the hearing was closed. Similarly in the present case a party appears willing to participate in the summary jury trial only if the press and the public are excluded. The court held in In re NLO that summary jury trials may not be mandated under such circumstances. Moreover, even if the public and the press may be excluded in some circumstances, this does not appear to be such a case. The Cincinnati Gas case was a private commercial action, not a class action involving public correctional institutions like the present case.

Accordingly, it is so ORDERED.


author: NATHANIEL R. JONES, Circuit Judge.

text:
    ENERTECH ELECTRICAL, INC., Plaintiff-Appellant, v. MAHONING COUNTY COMMISSIONERS; Mahoning County Building Commission, Defendants-Appellees, Local 64 International Brotherhood of Electrical Workers, Intervenor-Appellee.
    No. 94-3601.
    United States Court of Appeals, Sixth Circuit.
    Argued Sept. 25, 1995.
    Decided June 7, 1996.
    Peter D. Welin (argued and briefed), Arter & Hadden, Columbus, OH, for Plaintiff-Appellant Enertech Electrical, Inc.

      John E. Lynch, Jr. (argued and briefed), Marsha L. Montgomery, Squire, Sanders & Dempsey, Cleveland, OH, for DefendantsAppellees Mahoning County Commissioners, Mahoning County Building Commission.
    Dennis Haines (argued and briefed), Barry R. Laine, Green, Haines, Sgambati, Murphy & Maeala, Youngstown, OH, for Intervenor-Appellee Local 64 International Brotherhood of Electrical Workers.
    Victoria L. Bor (briefed), Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Amicus Curiae Building and Construction Trades.
    Michael J. Galeano and Ronald L. Mason (briefed), Emens, Kegler, Brown, Hill & Ritter, Columbus, OH, for Amicus Curiae ABC, Inc.
    Before: JONES and DAUGHTREY, Circuit Judges; GIBSON, District Judge.

       The Honorable Benjamin F. Gibson, United States District Judge for the Western District of Michigan, sitting by designation.

   NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant Enertech Electrical, Inc. (“Enertech”) appeals the district court’s grant of summary judgment to Mahoning County (“County”) in this action brought under 42 U.S.C. § 1983. Enertech sued the County after losing on its bid to be the electrical contractor for the County’s Justice Center construction project. The district court granted summary judgment to the County, holding that Enertech had failed to allege a deprivation of a constitutionally guaranteed property interest. For the reasons stated herein, we AFFIRM the decision of the district court.

I.

On April 26, 1993, the Mahoning County Board of Commissioners began to solicit bids for its Youngstown Justice Center construction project. The project was divided into seven different bid packages, including one for electrical work. To aid the bidding process, the County published an employee handbook, which prospective bidders could obtain from the offices of the County’s project consultants. The foreword to the handbook announced that the County had negotiated a Project Labor Agreement (“PLA”) with the Western Reserve Building and Construction Trades Council to govern the duties and responsibilities of all persons working on the project and to promote labor harmony. See J.A at 91. The foreword further stated that all trade contractors who performed work on the project would be required to ratify the Project Labor Agreement contained in the handbook and operate under its terms. Id. at 218.

At the May 1993 pre-bid meeting, which Enertech’s president attended, County representatives informed bidders that aspects of the PLA were still under negotiation. As of this meeting, the local bargaining representative for electricians had not been selected.

On June 15, 1993, Enertech submitted a bid for the electrical package. As part of the bid review process, the County mailed Enertech a brief questionnaire on June 17, 1993, asking the company whether it intended to abide by the terms of the PLA if its bid were determined to be the lowest and most responsive. The questionnaire asked Enertech to check a box indicating whether it would “agree” or “disagree” to do the following: (1) sign the Employee Manual/Project Labor Agreement; (2) sign the local collective bargaining agreements (for this project only); and (3) commit to safety criteria. J.A. at 219. On June 18, 1993, Enertech wrote a letter informing the County Braiding Commission that the union which represented its electricians was not signatory to the PLA, and that it was currently negotiating a collective bargaining agreement with its own electricians. While Enertech indicated it would commit to the safety criteria, the company did not agree to sign the PLA. J.A. at 221. Enertech knew by this time that the County had negotiated with International Brotherhood of Electrical Workers (“IBEW’) Local 64 to serve as the collective bargaining agent for the electrical workers on the project.

After a problem with one of the other packages altered the specifications of the electrical package, the County called for a rebid on this package. Enertech resubmitted its bid on August 12, 1993. The County determined Enertech to be the apparent low bidder and offered the contract to Enertech, on the express condition that Enertech sign the PLA and the collective bargaining agreement of the designated local bargaining representative, IBEW Local 64. See J.A. at 224-25. The County acknowledged Enertech’s previous resistance to these requirements and set a deadline of August 17, 1993 for Enertech to ratify the collective bargaining agreement of the designated local union. Id. Again, Enertech refused. Enertech replied that it would sign the documents, but because neither the PLA nor the pre-bid documents had specified that Local 64 was the collective bargaining agent for the project, Enertech would consider Local 573 as the appropriate agent for its employees. J.A. at 58. Once again the County mailed a letter stating its position, see J.A. at 60-1, and again Enertech maintained that it would not sign the collective bargaining agreement of Local 64, see J.A. at 62-3.

Enertech then filed a § 1983 action in the district court alleging deprivation of its constitutional property right to the contract without due process of law, abuse of discretion on the part of the County officials, and violations of the National Labor Relations Act (“NLRA”). Enertech sought a declaration from the district court that it was the lowest and most responsive bidder and a declaration that the Project Labor Agreement was illegal. Enertech further asked the court to enjoin preliminarily and permanently the County from enforcing the PLA. Finally, Enertech sought an award of its costs and fees.

The district court denied Enerteeh’s motion for a preliminary injunction, holding that an adequate remedy existed at law. The County then awarded the contract to the next lowest bidder. Enertech filed an amended complaint, adding a request for damages for profits lost due to the County’s awarding the contract to the next lowest bidder.

The district court granted Local 64’s motion to intervene as a Defendant. The County moved to dismiss or, in the alternative, for summary judgment. Local 64 moved for judgment on the pleadings or, in the alternative, for summary judgment. The district court concluded that no genuine issues of material fact existed and granted summary judgment in favor of the County and Local 64. Enertech appealed.

II.

We review a district court’s grant of summary judgment de novo, applying the same standards as the district court. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Russo v. City of Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986), and citing Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990); Curry v. Vanguard Ins. Co., 923 F.2d 484, 485 (6th Cir.1991)). Summary judgment is appropriate when the record “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

III.

We will first address the district court’s grant of summary judgment on Enerteeh’s § 1983 claim. Before the district court, Enertech alleged deprivations of its Fifth and Fourteenth Amendment rights to procedural and substantive due process and deprivations of rights secured by the NLRA. On appeal, however, Enertech has neither articulated a theory of substantive due- process violations nor pursued its argument that the PLA violates the NLRA; we will therefore consider these issues abandoned. See Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir.1989) (issues not raised in appellant’s opening brief will not be considered on appeal) (citing Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir.1986)). In the second part of our analysis, we will address Enertech’s argument that PLAs violate Ohio’s Competitive bidding statutes and are therefore void as a matter of law.

A.

To prevail on § 1983 claim, a plaintiff must establish that the defendant acted under the color of state law to deprive the plaintiff of a right secured by the Constitution or laws of the United States. United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir.1992). A constitutionally protected property interest in a publicly bid contract can be demonstrated in two ways. A bidder can either show that it actually was awarded the contract and then deprived of it, or that, under state law, the County had limited discretion, which it abused, in awarding the contract. United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 34 (6th Cir.1992); Peterson Enterprises, Inc. v. Ohio Dept. of Mental Retardation and Developmental Disabilities, 1989 WL 143563 (unpublished per curiam) (6th Cir. 1989). Enertech claims that the County did not have the discretion to condition the award of the contract on ratification of the PLA, and consequently that it abused its discretion by denying the contract to Enertech, who submitted the lowest dollar bid. We must disagree.

Section 307.90 of the Ohio Revised Code stipulates that the grant of publicly bid contracts are to be made to the “lowest and best bidder.” Ohio Rev.Code Ann. § 307.90 (Anderson 1992). The Ohio Supreme Court has held that “when the statute provides for the acceptance of the lowest and best bid the [county] is not limited to an acceptance of merely the lowest dollar bid.” Cedar Bay Constr., Inc. v. City of Fremont, 50 Ohio St.3d 19, 552 N.E.2d 202, 205 (1990) (citations omitted). Rather, the statute “places in the hands of the [county] authorities the discretion of determining who under all of the circumstances is the lowest and best bidder.” Id. (emphasis added). The local government is empowered to make a qualitative determination as to which bid was both lowest and best. City of Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 423 N.E.2d 1095, 1097 (1981).

The discretion to award a contract based on the lowest and best bid is not vested in the courts, and “the courts cannot interfere in the exercise of this discretion unless [the contracting authority] abused its discretion or acted fraudulently.” Wilson Bennett, Inc. v. GCRTA, 67 Ohio App.3d 812, 588 N.E.2d 920, 925 (1990). In this context, an abuse of discretion “implies an unreasonable, arbitrary or unconscionable attitude....” Scandrick, 423 N.E.2d at 1097 (quotations and citations omitted). “Arbitrary means without adequate determining principle; ... not governed by any fixed rules or standard. Unreasonable means irrational.” Id. (quotations and citations omitted).

We do not believe the county abused its discretion by determining that the “best” bidder would be a bidder willing to ratify the PLA. These terms, the ratification of the PLA and applicable local collective bargaining agreements, were added to secure labor harmony on the project and to govern the rights and responsibilities of project participants. The insertion of these terms is not inconsistent with Ohio’s competitive bidding policy. Ohio’s competitive bidding statutes were enacted “ ‘to provide for open and honest competition in bidding for public contracts and to save the public harmless, as well as bidders themselves, from any kind of favoritism or fraud in its varied forms.’” Cedar Bay, 552 N.E.2d at 204 (quoting Chillicothe Bd. of Ed. v. Sever-Williams Co., 22 Ohio St.2d 107, 258 N.E.2d 605, 610 (1970)). The PLA was included in the bidding process from the beginning, and it in no way interfered with openness and honesty of the bidding process. Furthermore, we find that the inclusion of the PLA in this bidding process neither resulted in favoritism nor fraud. We therefore conclude that in making ratification of the PLA a criterion for determining the lowest and best bidder, the County acted within its statutorily granted discretion.

Enertech did not meet the requirement of signing the PLA and ratifying the collective bargaining agreement of the selected union. Consequently, Enertech was never determined to be the lowest and best bidder. The County was therefore authorized by statute to award the contract to the next lowest bidder. Enertech has failed to allege any constitutionally protected property interest in the contract. The award of summary judgment for Defendants on the procedural due process claim was proper.

Before the district court, Enertech further contended that the County abused its discretion by conditioning the award of the contract on the adoption of Local 64’s collective bargaining agreement, a requirement that Enertech alleges, which was not announced prior to the bidding period. We find that we do not need to address this issue. Because this is another line of argument Enertech has excluded from its appellate briefs, we consider the issue abandoned. See Priddy v. Edelman, 883 F.2d at 446.

B.

On appeal, Enertech has advanced another argument for demonstrating that Mahoning County abused its discretion in awarding the contract. Enertech alleges that project labor agreements are prohibited by Ohio’s competitive bidding statutes, and that in inserting the PLA into the bidding process, the County abused its discretion by violating Ohio law. Enertech argues that this abuse of discretion represents a deprivation of its property right in the contract, see Peterson, supra, and serves as a legitimate basis for its § 1983 claim. Enertech has also moved to have the issue of “whether PLAs violate Ohio competitive bidding law” certified to the Ohio Supreme Court.

Defendants object to this line of argument because Enertech failed to present this theory of abuse of discretion to the district court. They argue that Enertech’s failure to pursue this theory of its case below resulted in a waiver of the issue. See Brickner v. Voinovich, 977 F.2d 235, 238 (6th Cir.1992) (arguments not presented to the district court are generally considered waived), cert. denied, 508 U.S. 974, 113 S.Ct. 2965, 125 L.Ed.2d 665 (1993).

Although we have been urged by Enertech as well as amici curiae, Associated Builders and Contractors, Inc. and Ohio ABC, Inc., we decline to reach the argument regarding the general legality of project labor agreements in Ohio public works contracts.

When a party fails to present an argument to the district court, we have discretion to resolve the issue only where the proper resolution is beyond any doubt, or where injustice might otherwise result. Brown v. Crowe, 963 F.2d at 897-98; Newmyer v. Philatelic Leasing, Ltd., 888 F.2d 385, 387 (6th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2169, 109 L.Ed.2d 499 (1990). We cannot say that proper resolution of this issue is without any doubt. Although the highest court in Ohio to reach this issue has determined that Ohio competitive bidding law does not prohibit project labor agreements wholesale, see State ex rel. Associated Builders and Contractors, Central Ohio Chapter et al. v. Jefferson County Bd. of Comm’rs, 106 Ohio App.3d 176, 665 N.E.2d 723 (Ohio.Ct.App.1995), appeal dismissed, 74 Ohio St.3d 1499, 659 N.E.2d 314 (1996), the Ohio Supreme Court has not spoken on this issue. In fact, the Ohio Supreme Court has declined to review this very question. 74 Ohio St.3d 1499, 659 N.E.2d 314 (1996). Further, we do not find that injustice would result from allowing the issue to be addressed in the first instance by the district court in the context of a properly developed record. See Newmyer, 888 F.2d at 397-98 (6th Cir.1989).

IV.

For the reasons stated above, we find that the grant of summary judgment against Enerteeh was proper. Consequently, we AFFIRM the decision of the district court and DENY Enertech’s motion for certification to the Ohio Supreme Court.


author: RYAN, Circuit Judge.

text:
    Warren J. DOWNHOUR, D.O., Virginia Forney, Richard E. Shaw, Warren D. Jacobs, Nino M. Camardese, M.D., George Lierenz, Sam Giallombardo, Don Daugherty, Sara Presley and Hilda Ruggles, Plaintiffs-Appellants, v. Peter SOMANI, M.D., individually and as Director of the Ohio Department of Health, Defendant-Appellee.
    No. 94-4232.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 26, 1996.
    Decided June 7, 1996.

      John B. Spitzer (briefed), Hummer Legal Services Corporation, Perrysburg, OH, Kent Masterson Brown (argued and briefed), and Christopher J. Shaughnessy, Brown, Kinkead & Bulleit, Lexington, KY, for Plaintiffs-Appellants.
    Dennis G. Nealon and Elise W. Porter (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, for Defendant-Appellee.
    Before: MARTIN, GUY, and RYAN, Circuit Judges.
   RYAN, Circuit Judge.

The plaintiffs, two health care practitioners and several of their patients, filed an action seeking declaratory and injunctive relief to restrain the defendant from enforcing Ohio Rev.Code Ann. §§ 4769.01 & 4769.02, alleging, inter alia, that the statutes violate the Supremacy Clause, U.S. Const, art. VI, cl. 2, because they are preempted by the Medicare Act, 42 U.S.C. §§ 1395-1395ccc. The complaint also contended that the statutes are void for vagueness, violate due process and equal protection guarantees, and infringe upon the constitutional right to privacy. The plaintiffs appeal from the district court’s grant of summary judgment in favor of the defendant. Concluding that none of the plaintiffs’ constitutional arguments has merit, we affirm.

I.

In 1965, Congress enacted the “Federal Health Insurance for the Aged and Disabled” program, more commonly known as Medicare. 42 U.S.C. §§ 1395-1395ccc. Part A covers those services provided by institutions such as hospitals, 42 U.S.C. §§ 1395c-1395i-4; it is not implicated by this case. Part B provides supplemental medical insurance benefits for certain health care, including physician services. 42 U.S.C. §§ 1395j-1395w-4. Benefits under Part B are administered by private insurance carriers, who in turn are supervised by the Department of Health and Human Services. 42 U.S.C. § 1395u.

Under Medicare, a physician may choose to be a “participating” physician by “accepting assignments,” meaning that the physician directly bills Medicare or, more precisely, the local Medicare insurance carrier for his services. If the claim is for a reimbursable, covered service, Medicare will pay 80% of what it has determined to be its approved rate, calculated pursuant to 42 U.S.C. § 1395w-4. The Medicare beneficiary is then responsible for a copayment of the remaining 20%. A participating physician agrees to accept the resulting 100% of the approved rate as full payment, even if it is less than his actual bill. See 42 U.S.C. § 13952 (a)(1).

In the alternative, a physician may choose not to accept assignments, which means he presents an itemized bill directly to a Medicare patient for his full charge. The patient applies in turn to Medicare, which will, as with participating physicians, reimburse 80% of its approved rate. Unlike in the case of a participating physician, however, the nonparticipating physician may then charge the patient for more than the 20% copayment, as Medicare provides that a nonparticipating physician is not prohibited from charging up to a total of 115% of the Medicare-approved rate. See 42 U.S.C. §§ 13952(a)(1), 1395u(b)(3)(B)(i). The practice of charging the patient for more than 20% of the Medicare-approved rate is commonly referred to as balance billing, although this is not a term used in the Medicare statute. This 115% limit was an innovation of the Omnibus Budget Reconciliation Act of 1989, which provided that, beginning January 1, 1991, nonparticipating physicians could balance bill only up to a “limiting charge,” which, for 1991, was 25% above the Medicare-determined allowable charge; for 1992, 20%; and for 1993 and thereafter, 15%. 42 U.S.C. § 1395w-4(g)(l)-(2).

On January 14, 1993, a group of statutes relating to the ability of health care practitioners to balance bill Medicare patients became effective in Ohio. The term “health care practitioner” includes “[a] physician authorized ... to practice medicine and surgery, osteopathic medicine and surgery, or podiatry,” Ohio Rev.Code Ann. § 4769.01(C)(6) (Anderson 1994), and thus includes the plaintiff-physicians. Balance billing was originally defined as “charging or collecting an amount in excess of the amount reimbursable under the medicare program for medicare-covered services or supplies provided to a beneficiary of the program,” Ohio Rev.Code Ann. § 4769.01(B) (Anderson 1994) (emphasis added). In the plaintiffs’ view, this language imposed a requirement that a Medicare claim be filed whenever a service was performed, in order to determine what amount was “reimbursable” under Medicare. Also, as originally written, the statutes prohibited health care providers from balance billing only those Medicare patients whose family incomes were less than 600% of the poverty guidelines, but allowed balance billing of other, wealthier patients. Ohio Rev.Code Ann. § 4769.02 (Anderson 1994).

Effective November 24,1995, however, the statute was amended, and now provides simply that “[n]o health care practitioner ... shall balance bill for any supplies or service provided to a medicare beneficiary.” Ohio Rev.Code Ann. § 4769.02 (Supp.1995). Thus, the prohibition is no longer tied to the income level of the Medicare beneficiaries. Moreover, balance billing is now defined as “charging or collecting from a medicare beneficiary an amount in excess of the medicare reimbursement rate for medicare-covered services or supplies provided to a medicare beneficiary.” Ohio Rev.Code Ann. § 4769.01(B) (Supp.1995). In other words, the statute now makes plain that it only applies once a Medicare claim has been filed, and that it imposes no independent requirement of filing a claim; if no claim is filed, the Ohio prohibition on balance billing simply is not activated. The statutory prohibition is enforced through complaints filed by those Medicare beneficiaries who believe they have been overcharged and who object to it; that is, there are no independent state investigations. Violations are punished by civil penalties. See generally Ohio Rev.Code Ann. §§ 4769.03-10 (Supp.1995).

The plaintiffs filed suit challenging only Ohio Rev.Code Ann. §§ 4769.01-.02, which define and prohibit balance billing; the plaintiffs did not challenge the enforcement provisions of the statutory scheme. The first amended complaint alleged, inter alia, that the statutes were impliedly preempted by Medicare. In addition, the complaint alleged that the statute’s original language, then in effect, providing for differential treatment of Medicare recipients based on their income was violative of the Equal Protection Clauses and the Due Process Clauses of the Fifth and Fourteenth Amendments. The plaintiffs further contended that the statutes were void for vagueness, because of the failure to define terms such as “family income.” Finally, the plaintiffs asserted that the Ohio law required them to file Medicare claims in order to determine whether a claim was “reimbursable,” and that this requirement violated their constitutional right to privacy; likewise, their constitutional right to privacy was violated by an implicit requirement that patients provide their personal financial information in order to determine whether they met the 600%-of-poverty-level threshold.

On the parties’ cross-motions for summary judgment, the district court granted summary judgment in favor of the defendant, dismissing all of the plaintiffs’ claims. The plaintiffs then filed this timely appeal.

II.

When a district court’s disposition of a case on cross-motions for summary judgment involves purely legal issues, this court’s review is plenary. Schilz v. City of Taylor, 825 F.2d 944, 946 (6th Cir.1987).

III.

A.

At the heart of the plaintiffs’ appeal is their argument that the Ohio statutes in question are preempted by Medicare. There has traditionally been a presumption against federal preemption of state law. Broyde v. Gotham Tower, Inc., 13 F.3d 994, 997 (6th Cir.) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)), cert. denied, — U.S. -, 114 S.Ct. 2137, 128 L.Ed.2d 866 (1994); see New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., — U.S. -, -, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995). There is, moreover, an additional and related judicial “ ‘assumption that the historic police powers of the States [are] not to be superseded by ... Federal [law] unless that was the clear and manifest purpose of Congress.’ ” Interstate Towing Ass’n, Inc. v. City of Cincinnati, 6 F.3d 1154, 1161 (6th Cir.1993) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)); see New York State Conference, — U.S. at -, 115 S.Ct. at 1676. Accordingly, if the subject matter of the state statute is one within the state’s traditional powers, the party arguing federal preemption must show that preemption was the “clear and manifest purpose of Congress.” Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 206, 103 S.Ct. 1713, 1723, 75 L.Ed.2d 752 (1983).

As an initial matter, the parties disagree whether the Ohio statutes address a subject traditionally regulated by the states, thus requiring the plaintiffs to satisfy the high “clear and manifest purpose” standard. While public health care is indisputably such a traditionally regulated matter, see New York State Conference, — U.S. at - - -, 115 S.Ct. at 1676-77; Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 2378, 85 L.Ed.2d 714 (1985), the plaintiffs suggest that the Ohio statutes regulate only medical costs, a subject that falls outside the purview of state police power. For support, the plaintiffs point to Judge Sloviter’s dissent to Pennsylvania Medical Society v. Marconis, 942 F.2d 842, 858 (3d Cir.1991), in which the Third Circuit addressed the issues that confront us here and found no preemption. Judge Sloviter contended that while public health may be a matter within a state’s police powers, medical billing is not, and thus a law banning balance billing is not entitled to any favorable presumptions. We disagree. The suggested distinction is interesting, but we think a health provider’s billing practices are inextricably linked to public access to medical care — that is, public health. Regulation of public health presupposes and encompasses the regulation of the cost of medical care. The two issues are therefore really one, and are, together, within a state’s police powers. Consequently, this court may not find that the Ohio statutes in question are preempted by Medicare unless, of course, it can be shown that preemption was the clear and manifest purpose of Congress.

B.

A congressional enactment may preempt state law in three possible ways. First, the federal law may contain “an express congressional command” preempting state law. Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617.

Second, state law may be impliedly preempted when the state law “actually conflicts with federal law,” id., either because “it is impossible to comply with both state and federal law, or [because] the state law is an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting the federal legislation,” Marconis, 942 F.2d at 848. An actual conflict analysis should be narrow and precise, “to prevent the diminution of the role Congress reserved to the States while at the same time preserving the federal role.” Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 515, 109 S.Ct. 1262, 1277, 103 L.Ed.2d 509 (1989).

Third, implied preemption also occurs when “federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’” Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (citations omitted).

It is plain that Medicare contains no express preemption of state law, and the plaintiffs rely only on arguments of implied preemption.

C.

The practice of “balance billing” was initially designed to benefit physicians who believed that the federal fee schedule did not adequately compensate them for the services they provided. See Medical Soc’y of State of New York v. State Dep’t of Health, 83 N.Y.2d 447, 611 N.Y.S.2d 114, 115-16, 633 N.E.2d 468, 469-70 (1994). Over time, however, as the use of balance billing increased, along with a corresponding increase in out-of-pocket liabilities for Medicare beneficiaries, the practice has become controversial:

Opponents contend that many beneficiaries are victimized by the process because they are unaware of the insurance options and often do not know that their physicians “balance bill” until after services have been rendered. They also contend that balance billing thwarts Medicare’s goal of reducing health care costs for beneficiaries because it invariably increases the amount charged to the beneficiary personally. Because this amount is generally not covered by other types of insurance, “extra bills become out-of-pocket liabilities” of the patient.

Medical Soc’y of State of New York v. Cuomo, 976 F.2d 812, 814 (2d Cir.1992) (citation omitted). In response to this mounting controversy, a number of states have considered banning the practice, and several have actually done so. Indeed, the laws banning or curtailing balance billing in three states— Massachusetts, Pennsylvania, and New York — have been challenged in federal courts on preemption grounds, and each has withstood the challenge. Cuomo, 976 F.2d 812 (New York law), aff'g 777 F.Supp. 1157 (S.D.N.Y.1991); Marconis, 942 F.2d 842 (Pennsylvania law), aff'g 755 F.Supp. 1305 (W.D.Pa.1991); Massachusetts Medical Soc’y v. Dukakis, 815 F.2d 790 (1st Cir.) (Massachusetts law), aff'g 637 F.Supp. 684 (D.Mass.1986), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). And not only have individual states been dismayed by the practice; Congress, too, “has repeatedly tried to discourage balance billing” through various legislative enactments. Cuomo, 976 F.2d at 814.

It is instructive to consider the language of the Medicare Act that the plaintiffs claim establishes the right of physicians to balance bill. The first such section provides that the Medicare insurance carrier

will take such action as may be necessary to assure that, where payment under this part for a service is on a charge basis, such charge will be reasonable and not higher than the charge applicable, for a comparable service and under comparable circumstances, to the policyholders and subscribers of the carrier, and such payment will ... be made—
(i) on the basis of an itemized bill; or
(ii) on the basis of an assignment____

42 U.S.C. § 1395u(b)(3)(B) (emphasis added). According to the plaintiffs, the “itemized bill” language reflects Congress’s intention to allow balance billing. Likewise, they argue, since Congress has made plain throughout section 1395u that physicians may “voluntarily” elect to become participating physicians, e.g., 42 U.S.C. § 1395u(h), it follows that Congress intended not to require any physician to forego balance billing, since balance billing is the hallmark of the nonparticipating physician designation. In further support of their argument, the plaintiffs refer to the provision of the Act establishing the 115% limiting charge:

In the cases of a nonpartieipating physician ...
[n]o person may bill or collect an actual charge for the service in excess of the limiting charge____
For physicians’ services furnished in a year after 1992, the “limiting charge” shall be 115 percent of the recognized payment amount under this part for nonpartieipating physicians____

42 U.S.C. § 1395w-4(g)(l)(A)(i), (2)(C). The plaintiffs suggest that by forbidding balance billing beyond 115% of the Medicare-approved rate, Congress has created an affirmative entitlement for physicians to balance bill-up to that amount.

We examine now, more closely, the plaintiffs’ two implied preemption arguments.

(1) Actual Conflict

The plaintiffs’ conclusion that Congress has created an inviolable right to balance bill that the states cannot destroy is based upon their argument that an option to balance bill is necessary to effectuate congressional purposes of maintaining a delicate balance between the competing objectives of providing beneficiaries with medical services they can afford and allowing access to physicians who charge higher fees. That argument has been made, and rejected, on several occasions in other courts. For example, in an opinion later affirmed by the Third Circuit, a district court in the Western District of Pennsylvania explained as follows:

Showing a Congressional design to strike a particular balance ... is not sufficient to shut states out of the process. The [plaintiffs] must show a need or an intent that the particular balance of cost and access be nationally uniform. Whether it is wise to stop the federal government from closing all “safety valves” throughout the nation, is of course, an entirely different question from whether it is wise to prevent states from closing one safety valve where it would serve the local interest.

Pennsylvania Medical Soc’y v. Marconis, 755 F.Supp. at 1312 (emphasis added). As the First Circuit observed in Dukakis, there is no particular “theoretical or logical” reason for national uniformity in this context; there is no uniquely federal interest in maintaining balance billing, and there is no concern, as there might be with, for example, transportation, that piecemeal state regulation will result in an unwieldy system. See Dukakis, 815 F.2d at 794-95. On the contrary, as the Dukakis court noted, there are compelling reasons for leaving the decision of whether to allow balance billing in the hands of the states:

After all, a state is ordinarily as concerned as the federal government to see that its elderly citizens enjoy medical care. A state would not normally wish to impose a ban that would hurt those citizens more than it helped them. Indeed, a state would likely be more cautious than the federal government, thinking twice before imposing such a ban, for a single state’s ban on balance billing risks losing doctors to other states, while a federal ban does not. Moreover, to the extent that relevant economic conditions vary from state to state, an individual state may better be able to strike the balance between “affordability” and “access” in a way that best serves its older citizens.

Id. at 795; see also Marconis, 942 F.2d at 852-53.

As we have noted, a state law may “actually conflict” with a federal law either because it is impossible to comply with both, or because “the state law is an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting the federal legislation.” Marconis, 942 F.2d at 848. Because it is, obviously, possible to comply with both the federal and state law at issue here, the sole question is whether Ohio’s law is an obstacle to Congress’s objectives in enacting Medicare.

Part of the basis for the plaintiffs’ theory that Congress has granted a “right” to balance bill that Ohio cannot deny is the argument that the Medicare Act, in providing that “[n]o person may bill or collect” more than 115% of the Medicare-allowed amount, has established a “right” to “bill or collect” up to that amount. We think not. Congress has not affirmatively stated that a health care practitioner is entitled to collect up to 115%, simply that he is forbidden from collecting more. That statement is certainly not equivalent to an express approval of charging 115%; even less is it a clear and manifest intention that such a “right” be preserved to the exclusion of contrary state laws. Moreover, as pointed out so well by other courts, there is no suggestion in the statute or legislative history that there is a need for national uniformity on the issue of balance billing, and there are, indeed, many persuasive reasons to conclude that state-specific legislation is preferable. In short, the plaintiffs’ suggestion that Ohio’s law is impliedly preempted because of an actual conflict with the Medicare Act must fail.

(2) Occupation of the Field

The plaintiffs have argued that Medicare’s extensive and complex regulation of physician fees indicates an intent to occupy the field. We note, first, that it is well-established that comprehensiveness of a statutory scheme is important in the preemption analysis only to the extent it shows a desire for exclusivity; comprehensiveness, without a concomitant congressional indication of intention to preempt, is insufficient to preclude state law. Hillsborough County, 471 U.S. at 717, 105 S.Ct. at 2377. There is no indication in Medicare’s balance billing provisions of a congressional desire for exclusivity; thus, the mere fact that Medicare is long and complicated is unimportant.

Second, the plaintiffs’ claim is belied by Medicare’s explicit statement of a lack of intention to occupy the field of compensation of health providers:

Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services....

42 U.S.C. § 1395. This statement, a fairly straightforward message by Congress conceding state sovereignty over the issue of regulation of physician fees, counsels strongly against the plaintiffs’ claims. In fact, courts have described this language as an “unambiguous sentiment” presenting a serious impediment to any argument that Congress intended Medicare to occupy the balance-billing field. See, e.g., Cuomo, 976 F.2d at 818.

Finally, we note that Congress has long been aware of state bans on balance billing, yet it has never expressed an intent to preempt such bans. For example, Congress was unquestionably aware of state bans, and federal court decisions approving them, at the time it made extensive changes to Medicare in 1989. At that time, the Physician Payment Review Commission, an advisory body to Congress established by the Omnibus Budget Reconciliation Act of 1986, 42 U.S.C. § 1395w-1, submitted a report to Congress which included an appendix listing the four states that at the time had statutes restricting balance billing (Massachusetts, Rhode Island, Connecticut, and Vermont), as well as the additional eighteen states that had considered such statutes. PPRC, 1989 Annual Report to Congress 371 (cited in Marconis, 942 F.2d at 850). Moreover, the PPRC Report cited the First Circuit’s 1987 Dukakis decision, in which the Massachusetts law banning balance billing was unsuccessfully challenged on preemption grounds. At the same time, the General Accounting Office issued a forty-one page report surveying the costs and benefits of state balance billing practices, which likewise referred to the First Circuit opinion. See GAO, MEDICARE: Impact of State Mandatory Assignment Programs on Beneficiaries (September 1989) (cited in Cuomo, 976 F.2d at 815).

On the one hand, we should “generally [be] reluctant to draw inferences from Congress’ failure to act,” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306, 108 S.Ct. 1145, 1154, 99 L.Ed.2d 316 (1988), as “congressional silence provides [but] a squishy reed upon which to base congressional intent,” Cuomo, 976 F.2d at 818. On the other, Congress’s failure to explicitly preempt when it was so clearly aware of the backdrop of state regulation is more significant than the usual failure to act, a consideration that the Mareonis court found highly persuasive:

The appellants cannot overcome the fact that, at the time of the Medicare amendments in 1989, and since then, Congress was and has been undisputedly aware of the fact that at least four states had balance billing restriction statutes and that similar restrictions had been considered by some 18 states.... This information was included in the PPRC report submitted to Congress in 1989. But in the face of this information, Congress did not include a specific preemption provision in the 1989 amendments to Medicare, nor has it done so since. The Supreme Court in a precedent we are not free to disregard has noted that when Congress remains silent regarding the preemptive effect of its legislation on state laws it knows to he in existence at the time of such legislation’s passing, Congress has failed to evince the requisite clear and manifest purpose to supersede those state laws. Furthermore, in this case the silence is particularly indicative of congressional intent, given the extraordinary oversight of the Medicare program as evidenced by the very existence of the PPRC with its annual reports to Congress and by the frequent amendment of the Medicare Act. Congress has simply not preempted state balance billing restrictions.

Marconis, 942 F.2d at 850 (emphasis added) (citing California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 287-88, 107 S.Ct. 683, 692-93, 93 L.Ed.2d 613 (1987)). Like the Marconis court, in the peculiar context presented here, we find the congressional silence resounding.

In sum, we find the fact that Congress elected not to place a federal ban on balance billing carries little weight as an indication that it intended to displace state bans, under the special circumstances of Medicare legislation. Congress has long been aware that several states have banned balance billing, and that those bans have been upheld by the courts. In such circumstances, congressional silence, and the failure to explicitly preempt, becomes much more significant than it otherwise would be. Moreover, recognizing the considerable burden the plaintiffs face in advancing their claim, we conclude that there can be no serious debate that the plaintiffs have not shown a clear and manifest congressional purpose to occupy the field of balance billing.

D.

Finally, we turn briefly to the remainder of the plaintiffs’ claims, which are premised solely on language now abandoned by the statutory amendments enacted during the pendency of this appeal. We entertain considerable doubt as to whether those arguments have not been rendered moot, given that the plaintiffs are, after all, requesting only prospective injunctive relief, and given, further, that the Ohio Department of Health has issued an informational publication stat-mg that it intends to follow the amended law in its implementation of the balance billing program. See generally Jones v. Temmer, 57 F.3d 921 (10th Cir.1995). At oral argument, however, the plaintiffs specifically declined to concede mootness, stating simply that the amendments had not led them to “necessarily forego” their remaining claims. Rather than address at length the complex mootness question, which has not been briefed, we will simply proceed to the merits.

As we have already described, beyond their preemption argument, the plaintiffs have contended that the Ohio statutes at issue are void for vagueness because of their failure to define various terms; that they are violative of due process and equal protection guarantees because they differentiate between groups of citizens based on income; and that they infringe upon the constitutional right to privacy both by requiring physicians to file a Medicare claim in order to determine if the particular claim was “reimbursable,” and by requiring patients to provide their personal financial information in order to determine whether they meet the 600%-of-poverty-level threshold. These arguments, we conclude, are without merit.

First, the Ohio statutes, as previously written, more than adequately conveyed the applicable standard of conduct, and so were not impermissibly vague. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Next, the previously existing differentiation between groups of Medicare recipients based on their income is a differentiation amply supported by the legitimate state interest of desiring to control medical costs for those least able to afford them. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Finally; the plaintiffs’ right-to-privacy arguments fail on two grounds. One, our reading of the first version of the Ohio statute discloses no requirement that a Medicare claim be filed; any such requirement is imposed by the Medicare Act itself, not by the Ohio balance-billing ban. Two, the constitutional right to privacy does not extend to protect the plaintiffs’ desire not to disclose their private financial information under these circumstances. See, e.g., Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir.1995); cf. Whalen v. Roe, 429 U.S. 589, 602, 97 S.Ct. 869, 877-78, 51 L.Ed.2d 64 (1977).

IV.

AFFIRMED.