Kobe v. Nikki Haley , 666 F. App'x 281 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1419
KOBE; MARK,
Plaintiffs – Appellants,
and
JOHN,
Plaintiff,
v.
NIKKI HALEY, in her official capacity as Governor and
Chairman of the South Carolina Budget and Control Board;
CHRISTIAN SOURA, in his capacity as the Director of the
South Carolina Department of Health and Human Services:
ANTHONY KECK, in his capacity as the former Director of the
South Carolina Department of Health and Human Services;
BEVERLY BUSCEMI, in her official capacity as Director of
the South Carolina Department of Disabilities and Special
Needs; RICHARD HUNTRESS, in his capacity as Commissioner of
the South Carolina Department of Disabilities and Special
Needs; KATHI LACY; THOMAS P. WARING; JACOB CHOREY, in their
capacities as employees of the South Carolina Department of
Disabilities and Special Needs; MARY LEITNER, in her
capacity as the Director of the Richland Lexington
Disabilities and Special Needs Board; JUDY JOHNSON, in her
capacity as the Director of the Babcock Center; DANIEL
COOPER; CONVERSE A. CHELLIS, III, HUGH LEATHERMAN; RICHARD
ECKSTROM; CURTIS LOFTIS; BRIAN WHITE, in their capacities
as former members of the South Carolina Budget and Control
Board; EMMA FORKNER, in her capacity as the former Director
of the South Carolina Department of Health and Human
Services; EUGENE A. LAURENT, former Interim Director of the
South Carolina Department of Disabilities and Special
Needs; STANLEY BUTKUS, former Director of the South
Carolina Department of Disabilities and Special Needs;
UNNAMED ACTORS ASSOCIATED WITH THE BABCOCK CENTER; THE
BABCOCK CENTER,
Defendants – Appellees,
and
CYNTHIA MANN, Deputy Administrator and Director of the
Center for Medicaid, CHIP, and Survey & Certification, CMS;
ELEANOR KITZMAN, in her official capacity as the Executive
Director of the State Budget and Control Board; MCCONNELL
F. GLENN, in his official capacity as the President Pro
Tempore of the South Carolina Senate; ROBERT W. HARRELL,
JR., in his official capacity as the Speaker of the South
Carolina House of Representatives; MARK SANFORD, in his
capacity as a former member of the South Carolina Budget
and Control Board,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Senior
District Judge. (3:11-cv-01146-MBS)
Argued: September 22, 2016 Decided: December 15, 2016
Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Patricia L. Harrison, PATRICIA LOGAN HARRISON LAW
OFFICE, Columbia, South Carolina, for Appellants. Damon C.
Wlodarczyk, RILEY, POPE & LANEY, LLC, Columbia, South Carolina;
Vance J. Bettis, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South
Carolina, for Appellees. ON BRIEF: William H. Davidson, II,
Kenneth P. Woodington, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellees Buscemi, Butkus, Chorey, Huntress,
Lacy, Laurent & Waring. Patrick J. Frawley, DAVIS FRAWLEY, LLC,
Lexington, South Carolina, for Appellee Leitner. Joel W.
Collins, Jr., Christian Stegmaier, Meghan Hazelwood Hall,
2
COLLINS & LACY, P.C., Columbia, South Carolina, for Appellees
Babcock Center, Unnamed Actors Associated with the Babcock
Center & Johnson. Robin L. Jackson, SENN LEGAL, LLC,
Charleston, South Carolina, for Appellees Chellis & Cooper.
Leslie A. Cotter, Jr., Sheila M. Bias, RICHARDSON, PLOWDEN &
ROBINSON, P.A., Columbia, South Carolina, for Appellees
Leatherman & Eckstrom.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
“Kobe” and “Mark” (“Appellants”) 1 appeal district court
orders dismissing certain defendants and then granting summary
judgment to others in an action primarily pertaining to the
administration of a South Carolina Medicaid waiver program.
Because we conclude that the district court erred in determining
that no justiciable issues remain in this case, we vacate the
grant of summary judgment against Appellants on Counts One
through Seven. We also vacate the dismissal of Counts One and
Two against Governor Nikki Haley in her official capacity.
Otherwise, we affirm.
I.
The Medicaid program, 42 U.S.C.A. §§ 1396, 1396a-v,
established as part of the Social Security Act in 1965, “is a
cooperative federal-state public assistance program that makes
federal funds available to states electing to furnish medical
services to certain impoverished individuals.” Mowbray v.
Kozlowski, 914 F.2d 593, 595 (4th Cir. 1990); see also Harris v.
McRae, 448 U.S. 297, 301 (1980). The state agency responsible
for administering and supervising Medicaid in South Carolina is
1Appellants are using pseudonyms to protect themselves from
possible retaliation.
4
the South Carolina Department of Health and Human Services
(“DHHS”). See Doe v. Kidd, 501 F.3d 348, 351 (4th Cir. 2007).
DHHS, in turn, contracts with the South Carolina Department of
Disabilities and Special Needs (“DDSN”) to operate South
Carolina’s treatment and training programs for people with
intellectual and related disabilities. DDSN is a seven-member
commission that is appointed by the Governor with the advice and
consent of the Senate. DDSN contracts with local Disabilities
and Special Needs Boards (“DSN Boards”), which contract with
private entities to provide Medicaid services.
The Richland Lexington Disabilities and Special Needs Board
(“Rich/Lex”) is “the administrative, planning, coordinating, and
service delivery body” for DDSN services that are provided in
South Carolina’s Richland and Lexington Counties. S.C. Code
§ 44-20-385. It is funded by DDSN and follows DHHS’s and DDSN’s
policies and procedures.
At issue in this case is the Medicaid waiver program
created by 42 U.S.C. § 1396n(c), which allows states to waive
the requirement that aid recipients must live in an institution
to receive particular Medicaid services. This case concerns
home and community-based services that South Carolina provides
through a Medicaid waiver program for eligible persons with
disabilities so that they may live in the community and avoid
5
institutionalization (the “ID/RD waiver”). 2 As is relevant in
this case, among the several types of services provided through
the ID/RD waiver are Adult Day Health Care services (“ADHC”),
respite care, and equipment and assistive technology. ADHC
provides individuals with medical or therapeutic care as well as
social and recreational events and meals. Respite care is
“[s]ervice[] provided to individuals unable to care for
themselves [that is] furnished on a short-term basis because of
the absence or need for relief of those persons normally
providing the care.” J.A. 2894.
Administration of the ID/RD waiver services generally
involves a service coordinator for each recipient, typically at
the county level. The service coordinator’s role is to evaluate
the individual’s condition and needs, including information from
that person’s doctors and other medical professionals, and to
work with the individual’s family members in order to develop a
plan of care. Service coordinators may approve some services
2 “ID/RD” stands for “intellectual disabilities/related
disabilities.” Although the ID/RD waiver was previously known
as the Mentally Retarded/Related Disabilities waiver, see
Stogsdill v. South Carolina Dep’t of Health and Human Servs.,
763 S.E.2d 638, 639 n.1 (S.C. Ct. App. 2014), the South Carolina
General Assembly amended various South Carolina code sections to
replace the former terms “mental retardation” and “mentally
retarded” with the terms “intellectual disability” and “person
with intellectual disability.” See 2011 S.C. Act No. 47, § 13
(eff. June 7, 2011).
6
themselves, but as to other services, they only make a
recommendation to DDSN, which decides whether to approve them.
See generally 42 C.F.R. § 440.169.
Appellants contend that for many years, DDSN has failed to
spend monies appropriated by the General Assembly for the
services the appropriations were intended to fund. Appellants
maintain that the problem has been compounded because the
failure to spend the appropriated funds caused them to miss out
on the federal matching funds that spending the funds would have
generated.
In late 2009, several events occurred that Appellants point
to as causing a reduction of services provided under the ID/RD
waiver, purportedly for budgetary reasons. 3 After the General
Assembly adjourned in 2009, DDSN announced that the Centers for
Medicare and Medicaid Services (“CMS”) had approved requested
changes to the ID/RD Waiver, effective January 1, 2010. The
changes included the elimination of physical therapy,
occupational therapy, and speech and language services “since
they [we]re covered under regular Medicaid.” J.A. 2607. Also,
respite hours were limited to 68 hours per month unless one of
3 Because we are reviewing orders granting motions to
dismiss and motions for summary judgment, we describe the facts
in the light most favorable to Appellants. For purposes of this
appeal, there is no material difference in the facts we consider
regarding the different motions.
7
three specific conditions were present, in which case, the
client could receive up to 240 hours per month upon DDSN
approval. 4
Appellants contend that although government officials
represented that the waiver changes were motivated by budget
concerns, in fact the changes increased costs significantly.
They further maintain that notwithstanding the claims of
budgetary restraints, DHHS actually had more funding than it
even needed to avoid reducing the services it had previously
been providing.
4 The three conditions were as follows:
1. Caregiver has been hospitalized or is receiving
medical treatment causing the caregiver to be away
from home for lengthy periods during the day for which
respite takes the place of the caregiver to protect
the health, safety, and welfare of the waiver
participant.
2. The waiver participant is medically complex or
severely disabled to the extent that the caregiver
must provide him/her constant hands on/direct care and
supervision for which the caregiver is not paid for 16
hour[s] of a 24-hour day.
. . . .
3. If support center services are unavailable to a
participant age 12 to exiting high school and the
primary caregiver works fulltime during the summer
months of June, July, and August.
J.A. 2608.
8
The waiver amendments were not the only cause of reductions
in DDSN’s expenditures on ID/RD waiver services. In December
2010, DDSN instructed the four local service coordinators in
Richland and Lexington Counties to complete new assessments for
ADHC service recipients in light of the requirement that ADHC
services are available only if the participants either have a
medically complex condition or require extensive assistance with
functional activities or tasks (the “medically complex/extensive
assistance requirement”). 5 Rich/Lex, in turn, informed affected
consumers of the impending reassessments. 6
Appellants allege that the effort to reduce expenditures on
ID/RD waiver services was part of a plan to force them to attend
Work Activity Centers (“WACs”) operated by local DSN Boards. A
WAC is “[a] workshop having an identifiable program designed to
provide therapeutic activities for workers with intellectual
disability whose physical or mental impairment is so severe as
to interfere with normal productive capacity.” S.C. Code Regs.
5 Appellees contend that this step was prompted when DDSN
officials noticed in late 2010 and early 2011 that service
coordinators in several counties were approving ADHC services
for a greater proportion of individuals than were generally
being approved in other counties.
6 Also, in December 2010, DDSN requested reevaluation of the
medical justification for provision of assistive technology and
specialized medical equipment for particular consumers whose
costs were particularly high.
9
88-405(K). Appellants contend that having more service
recipients attend WACs financially benefited DDSN as well as
local DSN Boards. They emphasize that the profits generated by
WACs are paid to DDSN and may be spent at DDSN’s discretion
without oversight by its governing board or the General
Assembly. Meanwhile, Appellants maintain that individuals
working in WACs are paid less than minimum wage, their medical
needs may not be properly attended to, and they are at risk for
abuse and neglect. Appellants additionally allege that forcing
ADHC recipients to attend a WAC set to open soon in Columbia,
South Carolina, was the true motivation behind DDSN’s attempt to
terminate the ADHC services of many disabled persons in Richland
and Lexington Counties.
Also at issue in this case are expenditures of DDSN funds
approved by the South Carolina Budget and Control Board (“BCB”).
Composed of the Governor, State Treasurer, Comptroller General,
Chairman of the Senate Finance Committee, and Chairman of the
House Ways and Means Committee, the BCB, at the time of the
events at issue in this case, acted as “an executive body
dealing primarily with the fiscal affairs of the State
government.” State ex rel. McLeod v. Edwards, 236 S.E.2d 406,
406-07 (S.C. 1977). However, the BCB was abolished effective
July 1, 2015. See South Carolina Restructuring Act of 2014,
S.C. Act No. 121 (S. 22) (2014).
10
In late 2009, DDSN requested and received BCB approval for
the transfer of nearly $6 million from an excess funds account
containing $7.8 million. From the requested funds, $2.6 million
was to purchase buildings to be used as WACS for two DSN boards
and the Babcock Center; 7 $3,244,738 was to be used for a
statewide accounting system; and $100,000 was for the
improvement of DDSN’s Medicaid billing system. Appellants
contend the transfer of these funds, which the General Assembly
had intended would be spent on ID/RD waiver services,
essentially gave the BCB control over the $3,244,738. Further,
Appellants maintain that by not spending the funds on services,
DDSN missed the opportunity to receive matching funds from the
federal government.
Kobe
Kobe has been disabled since birth due to severe cerebral
palsy. He is intelligent but cannot walk, nor can he speak in a
way that others can understand him. His arms and legs are
strapped to his wheelchair with Velcro to keep him from hurting
himself due to his spasticity. At the time this suit was filed
in 2011, he was 39 years old and he lived in a community
7
The “Babcock Center is a private, non-profit corporation
based in Columbia that provides housing and other services for
people with autism, [intellectual disabilities], head or spinal
injuries, or related disabilities.” Madison ex rel. Bryant v.
Babcock Ctr., Inc., 638 S.E.2d 650, 654 (S.C. 2006).
11
training home at the Babcock Center. Kobe’s physician has
determined that he needs ADHC services, and Kobe has attended
the Hope Bridge Adult Day Care program for many years.
In December 2010, after the aforementioned decision by DDSN
to have Rich/Lex’s service coordinators reassess the eligibility
of persons using ADHC services, Kobe’s service coordinator
determined that he no longer satisfied the medically
complex/extensive assistance requirement and thus was no longer
eligible to continue to receive ADHC services. Kobe appealed
the decision to the DDSN Director. He continued to receive ADHC
during the pendency of his appeal.
Kobe also maintains that the government has not
consistently provided him with a functioning wheelchair. In
early 2008 his then-current wheelchair was causing him to
develop painful ulcers on his buttocks. He asserts that
although a wheelchair was inserted into his plan of care in
January 2008, he did not actually receive the wheelchair he
needed until April 2009. Then shortly thereafter, his new
wheelchair was damaged and the headrest needed to be replaced.
As a result, he spent weeks in bed while his wheelchair was not
functional and he was unable to attend Hope Bridge.
Kobe was injured and his wheelchair further damaged on
December 28, 2010, when Kobe was dropped from a van as he was
being transported between Hope Bridge and the Babcock Center.
12
His broken wheelchair prevented him from attending Hope Bridge
from December 28, 2010, until January 18, 2011. Even after his
return, the wheelchair remained damaged and malfunctioned in
ways that sometimes left him “in bed for days.” J.A. 3656.
Kobe’s efforts to obtain the equipment he needs to
communicate also have often been unsuccessful. Since 2009, Kobe
has been requesting help in improving his reading skills, but he
has not been provided adult education classes, because he did
not have a device to help him communicate. An investigation by
the Lieutenant Governor’s Office in the summer of 2010 into a
report by Hope Bridge staff that Kobe was being neglected at the
Babcock Center revealed that Kobe needed an augmentative
communications device (“ACD”) in order to communicate his needs
to the staff. And the Lieutenant Governor’s Office notified
DDSN of this need in October 2010. 8 Kobe’s doctors ordered
speech evaluations on December 7, 2010, and on January 13, 2011,
and he received an evaluation in March 2011 from the Palmetto
Health Rehab Center. He tried a number of different speech
devices and experienced great success with the “Tobii C12 with
Eye Control,” which allowed him to synthesize speech with eye
8 Kobe identified several specific health problems that he
has suffered as a result of not being able to communicate
properly.
13
movements. Such a device would enable him to communicate with
staff so as to receive proper care and make his own
appointments.
Mark
Mark has Down Syndrome and, although he is an adult, he
functions at the level of a two-year-old. Since his father
died, he has lived with his adult sister in her home and
requires constant supervision.
Like Kobe, Mark receives ADHC services and he attends Hope
Bridge. Also like Kobe, Mark was notified in 2011, following
Rich/Lex’s reassessments, that he no longer was eligible for
ADHC services, although his services continued during the
pendency of the appellate process. Mark appealed the
eligibility decision to the DDSN Director, but the Director
upheld the decision. He therefore appealed that decision to
DHHS.
Important to Mark’s sister’s continued ability to care for
him in her home is Mark’s entitlement to respite care. Mark is
concerned that if his sister were to become ill and require
hospitalization for several weeks, rendering her unable to care
for him, the new caps would prevent him from receiving the
number of respite care hours he would need and could require him
to enter an institution to receive the care he would need.
Lawsuit
14
Appellants brought this action in May 2011 in federal
district court, and filed an amended complaint in October 2011. 9
Appellants’ amended complaint alleges many overlapping causes of
action primarily asserting, under various theories, that they
were deprived of services they were entitled to receive in a
timely fashion. 10 These services included ADHC for both
Appellants, Kobe’s wheelchair and ACD and physical, occupation,
and speech and language therapy, and Mark’s respite hours.
Several claims challenge the BCB’s alleged failure in 2009 “to
insure that the funds paid to [DDSN] were spent appropriately
for services Plaintiffs . . . need, despite repeated warnings
from the South Carolina Legislative Audit Council, federal and
state audits showing that [DDSN] was spending those funds to
purchase real estate to force waiver participants into WAC’s to
profit the State.” J.A. 220, see J.A. 225, 228, 231.
The amended complaint asserts causes of action for
violation of the Americans with Disabilities Act of 1990
(“ADA”), see 42 U.S.C. §§ 12101 et seq. (Count One); violation
9Originally there was a third plaintiff, who was eventually
voluntarily dismissed from the suit.
10Among other theories, Appellants alleged that Appellees
have failed to give deference to the treating orders of their
physicians; endangered their right to receive services in the
most integrated setting appropriate, and failed to establish
reasonable standards and promulgate regulations for operating
the waiver program.
15
of Section 504 of the Rehabilitation Act of 1973, see 29 U.S.C.
§ 794 (Count Two); violation of 42 U.S.C. § 1983 (Count Three);
violation of 42 U.S.C. § 1983 and 1988 (Count Four); 11 commission
of a conspiracy in violation of 42 U.S.C. 1985(3) (Count Five);
violation of the Supremacy Clause (Count Six); and violation of
the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
see 18 U.S.C. §§ 1503, 1512, 1513 (Count Seven). Kobe also
asserted state law claims for negligence, intentional infliction
of emotional distress, and assault and battery against the
Babcock Center and other Appellees in regard to his care during
the time he lived there (Count Eight). 12
11Counts Three and Four included allegations of violations
of Appellants’ rights under the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution, as well as the
Medicaid Act, see 42 U.S.C. § 1396 et seq.
12The amended complaint named numerous state officials and
others as defendants (collectively, “Appellees”). The
defendants can be divided into several categories. There are
DHHS Directors – Emma Forkner and Anthony Keck (“the DHHS
Appellees”); DDSN Directors and other DDSN officials – Beverly
Buscemi, Eugene Laurent, Stanley Butkus, Kathi Lacy, Richard
Huntress, Thomas Waring and Jacob Chorey (“the DDSN Appellees”);
the Director of Rich/Lex – Mary Leitner; the Director of the
Babcock Center, Judy Johnson, as well as other unnamed actors
associated with the Babcock Center (collectively, “the Babcock
Center Appellees”); and the Governor and other members of the
BCB (the “BCB Members”).
The BCB Members included Governor Haley, who assumed office
in January 2011 as Governor of South Carolina and Chairman of
the BCB; former Governor Mark Sanford, who preceded Governor
Haley as Governor and BCB Chairman; former State Representative
Daniel Cooper, who served as a BCB member by virtue of his
(Continued)
16
As is relevant here, the amended complaint requests that
the district court:
- “Issue an order of protection prohibiting [DDSN]
and its agents and employees from retaliating against
the Plaintiffs or their families.”
- “Assume jurisdiction over this action and
maintain continuing jurisdiction until the Defendants
are in full compliance with every order of [the
district court.]”
- “Issue an injunctive order declaring that
Defendants’ policies, practices, acts and omissions,
as set forth above, violate Plaintiff[s’] rights under
the ADA and Section 504 of the Rehabilitation Act and
the Medicaid Act.”
- “[Issue] an order prohibiting the Defendants from
reducing ADHC services and requiring Defendants to
provide such additional services as shall be medically
necessary, as shall be determined by [Plaintiffs’]
treating physicians, so as to allow Plaintiffs . . .
to live in the most integrated settings possible . . .
.”
- “So long as the cost of these services is less
than the cost of ICF/MR services, [issue] . . . an
service as Chairman of the Ways and Means Committee of the South
Carolina House of Representatives until January 2011; former
State Treasurer Converse Chellis, who served as a BCB member by
virtue of his position as State Treasurer until January 2011;
State Senator Hugh Leatherman, who served as a BCB member by
virtue of his position as Chairman of the Finance Committee of
the South Carolina Senate until the BCB was abolished in 2014;
and State Treasurer Curtis Loftis and Representative Brian
White, who succeeded Chellis and Cooper, respectively, and both
of whom served as BCB Members until the BCB was abolished in
2014.
Governor Haley, Loftis, and White were sued solely in their
official capacities, while the other Appellees were sued in both
their individual and official capacities.
17
order requiring Defendants to provide Medicaid waiver
services as shall be determined by the treating
physicians to be necessary absent review and an order
from the [district court] during this litigation.”
- “[Disgorge from] Defendants and their associated
enterprises or organizations . . . ill gotten gains.”
J.A. 244-45. The amended complaint also requests actual and
punitive damages and attorneys’ fees and costs. 13
Events Subsequent to the Filing of this Lawsuit
In May 2011, Kobe moved out of the Babcock Center to a
congregate group home operated by United Cerebral Palsy, a
private provider. However, Kobe has stated that he “want[s] to
live in [his] own apartment in the community instead of living
in a home with three other people who have disabilities.” J.A.
3655.
Kobe’s troubles obtaining and maintaining a working
wheelchair continued after filing this suit. Kobe’s plan of
care as of May 12, 2011, included the need for a new wheelchair
or a repair of the one he had been using. Weeks passed,
however, and he did not receive a new one.
Kobe’s struggles to obtain the Tobii ACD continued as well.
As of June 7, 2011, his plan of care included the Tobii C12 ACD.
Nevertheless, once more than a year had passed after Kobe’s
13
The amended complaint contains class action allegations
in the body of the complaint. However, Appellants sought no
class certification and have conceded that this action is not
being brought on behalf of others.
18
speech evaluation, Kobe was told that he would need a new
evaluation because the first one was not sufficiently recent.
Kobe received another evaluation, during which he tried
several ACDs that did not work for him due to his spasticity.
The evaluator again determined that he needed the Tobii device.
Kobe’s treating physician signed an order requesting the device,
certifying it as medically necessary, and Kobe requested it from
DHHS. DHHS initially denied his request on August 23, 2011, on
the basis that Kobe had not provided adequate documentation of
medical need. As of the filing of the amended complaint in
October 2011, Kobe still had not received the device he had
requested.
As for Kobe’s pending appeal of his service coordinator’s
decision that he no longer qualified for ADHC services, on May
11, 2011 – the same day Appellants filed their original
complaint – DDSN’s Director reversed the service coordinator’s
decision, determining that Kobe indeed did satisfy the then-
existing requirements. As the result of this reversal, Kobe’s
ADHC services never lapsed.
Despite obtaining a reversal of the decision that he was no
longer eligible for ADHC, Kobe appealed to DHHS. In his appeal,
Kobe complained that he had not received written notice of the
intent to reduce or eliminate his services. He also complained
that DHHS had failed to provide him “with speech and language
19
services, physical therapy, occupational therapy, adult
companion services and with an appropriate communications device
or to notify him of all feasible alternatives under the [ID/RD]
Medicaid waiver.” J.A. 2533. The appeal was resolved in mid-
October 2011 according to the following terms provided in an
August 9, 2012, consent order:
1. The Parties agree that [Kobe] meets criteria for
and is appropriate for [ADHC]. Waiver participants
are evaluated yearly under 42 CFR §441.302(c)(2).
2. As an [ID/RD] Waiver Participant, [Kobe] will be
allowed to continue to receive ADHC offered by the
[ID/RD] Waiver, provided by the qualified provider of
his choice.
J.A. 2458.
Mark’s appeal to DHHS regarding his ADHC eligibility was
also resolved in mid-October 2011 by agreement. An August 2012
consent order memorializing the agreement contained language
identical to that of Kobe’s and thus established that Mark
satisfied the medically complex/extensive assistance
requirement. Like Kobe’s ADHC services, Mark’s never lapsed.
Shortly after resolving Appellants’ administrative appeals,
DHHS eliminated the medically complex/extensive assistance
requirement that had been the basis for Appellants’ service
coordinators’ initial decisions (“the 2011 Policy Change”).
Motions to Dismiss and for Summary Judgment
20
As the present lawsuit continued, Governor Haley, Loftis,
White, Cooper, and Chellis filed motions to dismiss the claims
against them, arguing they were entitled to dismissal for a
variety of reasons. See Fed. R. Civ. P. 12(b)(1), (6). They
all maintained they were entitled to dismissal on the basis of
Eleventh Amendment immunity of all claims asserted against them
in their official capacities.
In their memoranda opposing dismissal of these defendants
on the basis of Eleventh Amendment immunity, Appellants relied
primarily on the Ex Parte Young exception to Eleventh Amendment
immunity. See Ex parte Young, 209 U.S. 123 (1908). They
asserted that as to Loftis, White, Cooper, and Chellis,
Appellants were seeking prospective relief only. See J.A. 781
(“Plaintiffs . . . seek only prospective relief against
Defendants Loftis and White.”); J.A. 1086 (“All of the relief
requested by the Plaintiffs as to Defendant Cooper is
prospective.”); J.A. 1115 (“Only prospective relief, and
attorneys fees, are requested from [Chellis].”).
Considering the various motions, the district court
dismissed all claims against Haley, Cooper, Loftis, Chellis, and
White. Regarding the claims asserted against them in their
official capacities, the district court concluded that these
defendants were entitled to Eleventh Amendment immunity as a
matter of law. The court ruled that the Ex Parte Young
21
exception did not apply to requests for redress for violations
that occurred wholly in the past, including those relating to
the BCB’s involvement in the use of funds from the excess fund
to purchase real estate. Regarding prospective relief for
ongoing violations, the court concluded that none of these
defendants had the requisite special connection to the
administration of the state’s Medicaid program such that an
injunction against them would provide Appellants any effective
redress. And to the extent the defendants were sued in their
individual capacities, the court ruled that there could be no
prospective relief; the court reasoned that even should an
injunction be entered against them, they did not occupy any
positions through which they could remedy Appellants’ claimed
injuries. The court also ruled that they were entitled to
legislative immunity.
Leatherman and Eckstrom subsequently filed a motion to
dismiss or for summary judgment, advancing arguments similar to
those of the other BCB Members. Appellants opposed the motion,
but, as they had regarding Loftis, White, Cooper, and Chellis,
they abandoned any claims for retrospective relief against these
defendants. See J.A. 2240 (“[T]he only relief [Appellants]
request from [Leatherman and Eckstrom] is injunctive relief.”).
The district court granted the motion, ruling that Leatherman
and Eckstrom were entitled to Eleventh Amendment immunity
22
because the Ex Parte Young exception did not apply since
Appellants could not obtain any prospective injunctive relief
against Leatherman and Eckstrom and because Appellants alleged
no ongoing violation of the law. The court also ruled
Leatherman and Eckstrom were entitled to legislative immunity to
the extent they were sued in their individual capacities.
The case then proceeded against the remaining defendants.
After discovery had been completed, Appellants and the remaining
defendants filed cross-motions for summary judgment. 14 As is
relevant to this appeal, several of the defendants maintained
that the claims in this suit were no longer justiciable. The
DDSN Appellees, in particular, contended that several events
mooted Appellants’ claims. They argued that the 2011 Policy
Change mooted any issue about Appellants’ entitlement to
prospective relief protecting their right to receive ADHC. The
DDSN Appellees also argued that the reversal by their Director
of the determination that Kobe was not eligible for ADHC, at a
time when the Director was not even aware of the existence of
the lawsuit, mooted any claim regarding the service
14
The parties had once previously filed cross-motions for
summary judgment. The district court denied those motions
without prejudice so as to allow Defendants to engage in
discovery regarding certain witnesses that Plaintiffs had only
recently identified.
23
coordinator’s original decision. The Babcock Center Appellees
also argued that Appellants failed to forecast evidence of
proper damages to meet RICO’s standing requirements.
In support of their motion for partial summary judgment,
Appellants contended they were entitled to summary judgment on
several individual issues relating to the merits of their
claims. And, in opposition to the remaining Appellees’ summary
judgment motions, Appellants maintained, as is pertinent here,
that the “voluntary cessation” exception to the mootness
doctrine prevented the 2011 Policy Change from mooting the
claims concerning their ADHC eligibility, Kobe’s equipment
needs, and the provision of in-home services to Mark.
Additional Developments Regarding Kobe’s Attempts
to Obtain an ACD
DHHS formally denied Kobe’s request for the Tobii device on
November 14, 2011. DHHS’s response stated that the reason for
the denial was that Kobe was not involved in educational
endeavors but instead needed to communicate only in order to
express health and well-being needs, comfort and discomfort, and
to conduct normal speech. 15 On that basis, DHHS decided that an
15
Appellants express frustration with DHHS’s position in
light of their allegation that Kobe had been denied educational
opportunities because he did not have a speech device.
24
ACD with pre-recorded messages, as opposed to an ACD that
synthesized speech, would be adequate for him. Rather than
engage in what they expected would be a lengthy administrative
appeal process, Appellants decided to litigate Kobe’s claims
regarding his entitlement to the ACD in the current lawsuit.
Nearly two years after DHHS had denied his request, in the
summer of 2013, Rich/Lex was “able to secure a Tobii unit for
‘Kobe’ through the University of South Carolina Assistive
Technology Exchange Program” (the “USC Program”). J.A. 2558.
There is no dispute that the “Tobii C-15 Eye Gaze unit” the USC
Program provided “allows [Kobe] to communicate by shifting his
eye gaze to letters on a board” and thus is sufficient to meet
Kobe’s needs. J.A. 2558. However, as of January 2, 2014, the
unit was not attached to Kobe’s damaged wheelchair. Kobe
therefore could not effectively use the device when he left his
home. By the time of the September 23, 2014, summary judgment
hearing, Kobe had finally received a new wheelchair, but the ACD
had not yet been attached.
Kobe describes the ACD that the USC Program has allowed him
to use as a “loaner,” and he states that “it does not belong to
[him] and [he is] afraid that they will take it back once this
lawsuit is over.” Appellants’ brief at 25 (internal quotation
marks omitted); J.A. 3654. However, Rich/Lex’s representative
stated in a January 2014 affidavit that “[t]he arrangement with
25
the USC Program is that ‘Kobe’ can keep the . . . device so long
as he continues to use it.” J.A. 2558. The representative
added in a later affidavit that the USC Program director had
stated that “the device was Kobe’s as long as he uses it” and if
Kobe “ever stops using it – which is unlikely – [the USC
Program] would probably like it back so someone else would be
able to benefit from it; but there is no express agreement or
contract to that effect, and the device is not ‘on loan’ to
Kobe.” J.A. 4440.
Considering the cross-motions for summary judgment from the
remaining parties, the district court 16 granted summary judgment
against Appellants on all claims (except for Count Eight,
asserting state law claims against the Babcock Center
Appellees), and denied Appellants’ motion. 17 The district
court’s decision was based on a combination of three grounds
relating to justiciability: (1) that Kobe’s entitlement to a
wheelchair was mooted when he received a functioning chair
during this case, (2) that Mark’s claim to additional respite
care hours was not ripe because the possibility that the new
16
The case had been reassigned to a different district
judge in July 2014.
17
The district court also dismissed former Governor Sanford
since there was no evidence that he was ever served with copies
of the summons and complaint. See Fed. R. Civ. P. 4(m).
26
caps would cause him to be institutionalized was only
speculative, and (3) that Appellants lacked standing to seek
injunctive relief from the “allege[d] systemic failures within
the DHHS and DDSN systems” and the alleged “mishandling of funds
and exploitation” because they did not show a particular
cognizable injury or an immediate threat of injury from that
alleged conduct, J.A. 4432. The district court, noting that
“Kobe’s ACD device was not installed on his wheelchair at the
time of the hearing and thus [was] not accessible to him[,] . .
. order[ed] that the ACD device be properly affixed to Kobe’s
wheelchair no later than ten (10) days from the date of entry of
th[e] order.” J.A. 4433 (emphasis omitted). The device has
since been installed.
Appellants subsequently filed a motion to alter or amend,
challenging the grant of summary judgment on a variety of
grounds. See Fed. R. Civ. P. 59(e). As is relevant here, they
contended that the district court ignored much of the factual
predicate supporting several of their claims and failed to
explain its decision to dismiss several other claims. They
specifically emphasized the court’s failure to address their
claims that Appellees failed to provide Kobe a wheelchair and
ACD with reasonable promptness. Regarding justiciability,
Appellants argued that the district court failed to recognize
that they were among the intended beneficiaries of the DHHS
27
funds used to purchase real estate. They contended that their
challenges to illegal policies were ripe because the
administrative decisions at issue had already been finalized.
Before the court ruled on that motion, the parties settled
Count 8, regarding injuries Kobe allegedly suffered while living
at the Babcock Center, and the claim was dismissed by a consent
order.
The court later denied Appellants’ Rule 59(e) motion.
Regarding a contention by Appellants that the court had not
addressed Kobe’s claim that he was entitled to be placed in a
Supervised Living Program (“SLP”) apartment, 18 the district court
concluded that such a claim was not ripe because “[t]here is no
evidence regarding if or when [any request made by Kobe to
Rich/Lex] was forwarded to [DDSN], or whether DDSN has rendered
an unfavorable administrative decision or failed to respond to
Kobe’s request.” J.A. 4495.
II.
Appellants first argue that the district court erred in
granting summary judgment against the then-remaining defendants
18 An SLP would be a less-restrictive setting than the one
Kobe currently lives in.
28
on justiciability grounds on Counts One through Seven. 19
Appellees, on the other hand, maintain that the district court
properly ruled that no live controversy remains in this case.
Appellees argue that because no justiciable issues remain, we
need not even address the Appellants’ arguments regarding the
dismissal of the BCB Members from the case. We therefore begin
our analysis with these justiciability questions. See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“[E]very
federal appellate court has a special obligation to satisfy
itself not only of its own jurisdiction, but also that of the
lower courts in a cause under review.” (internal quotation marks
omitted)).
We review de novo a district court’s ruling concerning
subject-matter jurisdiction. See Simmons v. United Mortg. &
Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir. 2011). “We review a
district court’s decision to grant summary judgment de novo,
applying the same legal standards as the district court, and
viewing all facts and reasonable inferences therefrom in the
light most favorable to the nonmoving party.” T–Mobile Ne., LLC
v. City Council of Newport News, 674 F.3d 380, 384–85 (4th Cir.
2012) (internal quotation marks omitted). Summary judgment is
19At the summary judgment hearing, Appellants abandoned any
damages claims against the remaining defendants.
29
appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In order for the federal courts to have jurisdiction,
plaintiffs must possess standing under Article III, § 2 of the
Constitution. See David v. Alphin, 704 F.3d 327, 333 (4th Cir.
2013). Article III standing, in turn, has three “irreducible
minimum requirements”:
(1) an injury in fact (i.e., a ‘concrete and
particularized’ invasion of a ‘legally protected
interest’);
(2) causation (i.e., a ‘fairly ... trace[able]’
connection between the alleged injury in fact and the
alleged conduct of the defendant); and
(3) redressability (i.e., it is ‘likely’ and not
merely ‘speculative’ that the plaintiff’s injury will
be remedied by the relief plaintiff seeks in bringing
suit).
Pender v. Bank of Am. Corp., 788 F.3d 354, 365 (4th Cir. 2015)
(quoting Sprint Commc’ns Co., L.P. v. APCC Serv., Inc., 554 U.S.
269, 273–74 (2008)). Regarding the injury-in-fact prong, “[a]n
allegation of future injury may suffice if the threatened injury
is certainly impending, or there is a substantial risk that the
harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334, 2341 (2014) (internal quotation marks omitted).
“To qualify as a case fit for federal-court adjudication,
an actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.” Arizonans for
30
Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal
quotation marks omitted). Accordingly, a case is moot “when the
issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Chafin v. Chafin,
133 S. Ct. 1017, 1023 (2013) (some internal quotation marks
omitted).
Another “Article III threshold question” is whether a
“dispute is ripe for adjudication.” Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d
187, 198 (4th Cir. 2013). “A claim should be dismissed as
unripe if the plaintiff has not yet suffered injury and any
future impact remains wholly speculative.” Doe v. Virginia
Dep’t of State Police, 713 F.3d 745, 758 (4th Cir. 2013)
(internal quotation marks omitted). “The basic rationale of the
ripeness doctrine is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete
way by the challenging parties.” Pacific Gas & Elec. Co. v.
State Energy Res. Conserv. & Dev. Comm’n, 461 U.S. 190, 200
(1983) (internal quotation marks omitted). When determining
ripeness, we traditionally consider “(1) the fitness of the
issues for judicial decision and (2) the hardship to the parties
31
of withholding court consideration.” Cooksey v. Futrell, 721
F.3d 226, 240 (4th Cir. 2013) (internal quotation marks
omitted). “A case is fit for adjudication when the action in
controversy is final and not dependent on future uncertainties”;
conversely, a claim is not ripe when “it rests upon contingent
future events that may not occur as anticipated, or indeed may
not occur at all.” 20 Scoggins v. Lee’s Crossing Homeowners
Ass’n, 718 F.3d 262, 270 (4th Cir. 2013) (internal quotation
marks omitted). The hardship prong, on the other hand, “is
measured by the immediacy of the threat and the burden imposed
on the plaintiffs.” Miller v. Brown, 462 F.3d 312, 319 (4th
Cir. 2006) (alterations and internal quotation marks omitted).
Regarding the district court’s conclusion that events
during the pendency of this case have put an end to any live
controversy, Appellants contend that the record, viewed in the
light most favorable to them, demonstrates that:
Appellees have not yet voluntarily ceased the conduct
of failing to provide services with reasonable
promptness, failing to establish reasonable standards,
failing to provide services in the amount, duration
and scope necessary to meet Plaintiffs[’] needs in
order [for them to be able] to remain in the least
restrictive setting.
20
A fit case would ideally present “purely legal” issues.
See Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006).
32
Appellants’ brief at 44. They also contend that the caps
affecting the amount of respite care Mark can receive have not
been eliminated. They argue that even to the extent that
Appellees have voluntarily ceased some of the complained-of
conduct by confirming their eligibility for ADHC or providing
them with requested services and equipment, exceptions to the
mootness doctrine apply. And they maintain that the district
court failed to explain how its conclusions regarding
justiciability justified granting summary judgment on their
various claims.
We will address these seriatim, beginning with the issues
relating to Appellants’ eligibility to receive ADHC, and then
moving to those pertaining to Kobe’s requests for particular
equipment and services. Then, finally, we will address the
district court’s implicit conclusion that the justiciability
issues warranted granting summary judgment against Appellants on
each of the first seven counts. 21
21
In their initial brief, Appellants do not challenge the
district court’s ruling that their challenge to the respite-
hours caps was not ripe because they had not shown that Mark had
in fact been affected by the caps or that there was any
nonspeculative possibility that he would be affected in the
future. For the first time, in their reply brief, Appellants
offer a cursory challenge to that conclusion, suggesting that if
his circumstances were to change such that his sister became
physically incapacitated or otherwise unable to care for him for
an extended period, then the caps could prevent him from
receiving the respite care he would need and could even result
(Continued)
33
We start with Appellants’ argument that their claims remain
justiciable to the extent they concern the termination of their
eligibility to receive ADHC services. Appellants contend that
despite the fact that they prevailed during the administrative
appeal process regarding termination of their ADHC services, the
claims relating to those services continue to present a live
controversy and should not be dismissed as moot. 22
“It is well settled that [the] defendant’s voluntary
cessation of a challenged practice does not deprive a federal
in his institutionalization. Even if the issue were properly
before us, Appellants have done nothing to demonstrate that the
prospect of such a change in circumstances was anything more
than speculative. Nor have they identified any immediate
hardship Mark would suffer from being unable to resolve the
legality of the new limits in this suit. We conclude therefore
that they have failed to satisfy their burden of showing that
their challenges to the new respite-hour limitations are ripe.
See Miller, 462 F.3d at 319 (“The burden of proving ripeness
falls on the party bringing suit.”).
Appellants offer no challenge to the district court’s
ruling that their claim that Kobe is entitled to be provided
with an SLP is unripe. Nor do they challenge the ruling that
Appellants’ claim demanding payment for the speech pathologist
who evaluated Kobe and provided him with speech services fell
outside the scope of their complaint. We therefore do not
address those issues.
22Appellants argue that at this stage they are entitled to
an award of attorneys’ fees regarding claims in which Appellees
have voluntarily ceased their allegedly wrongful conduct.
However, Appellants do not identify any ruling by the district
court addressing the fee issue, and we decline to address the
attorneys’-fee issue in the first instance.
34
court of its power to determine the legality of the practice”
unless it is “absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,
189 (2000) (internal quotation marks omitted); see Knox v.
Service Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287
(2012) (“The voluntary cessation of challenged conduct does not
ordinarily render a case moot because a dismissal for mootness
would permit a resumption of the challenged conduct as soon as
the case is dismissed.”). Without that rule, “courts would be
compelled to leave the defendant free to return to his old
ways.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289 n.10 (1982) (alterations and internal quotation marks
omitted). The party asserting mootness bears “[t]he ‘heavy
burden of persua[ding]’ the court that the challenged conduct
cannot reasonably be expected to start up again.” Wall v. Wade,
741 F.3d 492, 497 (4th Cir. 2014) (quoting Laidlaw, 528 U.S. at
189).
Additionally, “[a] case that would otherwise be moot is not
so if the underlying dispute is ‘capable of repetition, yet
evading review.’” Stop Reckless Economic Instability Caused by
Democrats v. FEC, 814 F.3d 221, 229 (4th Cir. 2016) (quoting
Southern Pac. Term. Co. v. ICC, 219 U.S. 498, 515 (1911)). The
Supreme Court has explained
35
that in the absence of a class action, the “capable of
repetition, yet evading review” doctrine [is] limited
to the situation where two elements combined: (1) the
challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration,
and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same
action again.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).
Appellants argue, essentially, that Appellees’ reversal of
their service coordinators’ decisions that they were no longer
eligible for ADHC services was a voluntary cessation of
Appellees’ challenged conduct. Appellants maintain that
Appellees have not met their “heavy burden” of showing that, if
Appellants’ claims are dismissed, Appellees would not simply
reverse course again after this litigation regarding Appellants’
eligibility for ADHC. See Pashby v. Delia, 709 F.3d 307, 316
(4th Cir. 2013). We disagree.
Assuming that when this suit was initiated Appellants had
standing to challenge their service coordinator’s initial
decision that they were no longer eligible to receive ADHC, the
claims regarding their eligibility became moot once Appellants
obtained a reversal of the decision through the administrative
appeal process without ever having their ADHC discontinued. The
reversals were “not . . . voluntary cessation[s] within the
meaning of that doctrine, but w[ere] instead the result of
[Appellants’] successful administrative appeal[s].” Oregon Nat.
36
Res. Council, Inc. v. Grossarth, 979 F.2d 1377, 1379 (9th Cir.
1992) (holding that action challenging United States Forest
Service’s approval of a timber sale became moot when challenged
sale was halted as a result of an administrative appeal). Cf.
ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d
44, 55 (1st Cir. 2013) (“The voluntary cessation doctrine does
not apply when the voluntary cessation of the challenged
activity occurs because of reasons unrelated to the litigation.”
(internal quotation marks omitted)); Sze v. INS, 153 F.3d 1005,
1008 (9th Cir. 1998) (similar).
Appellants’ argument that their challenges regarding their
ADHC eligibility fit within the capable-of-repetition exception
fail as well. Appellants offer no argument as to why such
claims would inherently be too short in duration to be able to
be fully litigated, and we know of no reason that they would be.
See Weinstein, 423 U.S. at 149. We therefore conclude that the
district court correctly determined that Appellants’ challenges
regarding their eligibility for ADHC services are moot.
We reach the opposite conclusion, however, concerning
Appellants’ claims regarding Appellees’ responses to Kobe’s
needs for particular equipment and technology. Appellants
allege, under various legal theories, that Appellees wrongfully
failed to promptly provide Kobe with the equipment he needed,
particularly a functioning wheelchair and the ACD he requested.
37
Appellants argue that even if Appellees’ conduct during this
case has satisfied Kobe’s needs for the time being, neither
Appellees nor the district court offer any suggestion as to how
Appellees have carried the heavy burden of showing that the
complained-of pattern of allegedly unreasonable delays and
improper denials will not resume after this case is completed.
In fact, Appellees have not even made that showing with regard
to the specific items that are the subject of Kobe’s claims.
Kobe’s future prospects with regard to the ACD seem
especially uncertain. DHHS denied his request for the ACD his
doctor ordered, and while the USC Program, apparently at
Rich/Lex’s request, has now voluntarily allowed Kobe to use a
satisfactory ACD, there is no indication that DHHS has ever
altered its decision that Kobe is not legally entitled to such a
device. If, after this case is completed, the USC Program
requests return of the ACD or if Kobe needs it adjusted,
repaired, or replaced, he could well be met with the same sort
of allegedly improper delays and denials that he claims
repeatedly occurred before he decided to press his claims in
court. 23 Cf. Pashby, 709 F.3d at 316 (holding that state
23In fact, it was only by virtue of an order of the
district court in this case that Appellees even attached the
device to Kobe’s wheelchair so that it would be accessible to
him outside of his house.
38
agency’s “voluntar[y] reinstate[ment]” of benefits after agency
had previously announced that recipients no longer met the
eligibility requirements for those benefits did not moot suit
challenging the termination of the benefits when agency
“remain[ed] free to reassess the [recipients’] needs and cancel
their [benefits] at any time”). And Kobe certainly has reason
to be concerned in light of the many problems he has had
obtaining reasonably prompt responses from Appellees regarding
his allegedly often-nonfunctional wheelchair, the condition of
which is also critical to his quality of life. In sum,
Appellees have not met their “heavy burden” of showing that
after this litigation has concluded, Kobe will not once again
find himself without the equipment he needs and without any
ability to obtain it without significant delay. We therefore
conclude that to the extent Appellants challenge Appellees’
response to Kobe’s need for equipment, his challenges are not
mooted by Appellees’ temporary satisfaction of his needs during
the pendency of this lawsuit. Accordingly, we vacate the
district court’s order granting summary judgment against
Appellants on justiciability grounds, and remand for further
proceedings consistent with this opinion.
In addition to arguing that this case presented a live
controversy, Appellants contend that the district court erred in
failing to explain its decision not to address the merits of
39
several of their claims. Indeed, the district court did not
explain in any detail how its conclusions regarding
justiciability justified granting summary judgment on each of
Appellants’ first seven claims. Because we hold that this case
in fact continues to present justiciable issues, we vacate the
grant of summary judgment against Appellants on Counts One
through Seven and remand to the district court for further
consideration of the viability of each of Appellants’ claims
against each of the Appellees. To the extent that the district
court concludes on remand that any particular Appellees are
entitled to prevail as a matter of law on any particular claims,
the court should fully explain its analysis. 24
III.
We now turn to Appellants’ argument that the district court
erred in dismissing the official-capacity claims against several
of the BCB Members – Governor Haley, Leatherman, Eckstrom,
Chellis, and Cooper – on the basis of Eleventh Amendment
immunity. 25
24We express no view on any issue not addressed in this
opinion, whether related to justiciability or otherwise.
25Appellants do not appeal the dismissal of Loftis, White,
or Sanford.
40
The Eleventh Amendment to the United States Constitution
provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”
Eleventh Amendment immunity protects unwilling states from suit
in federal court. See Will v. Michigan Dep’t of State Police,
491 U.S. 58, 70 (1989); Edelman v. Jordan, 415 U.S. 651, 662–63
(1974). 26 “State officers acting in their official capacity are
also entitled to Eleventh Amendment protection, because ‘a suit
against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the
official’s office.’” Lytle v. Griffith, 240 F.3d 404, 408 (4th
Cir. 2001) (quoting Will, 491 U.S. at 71).
The Supreme Court, however, delineated an exception to the
application of the Eleventh Amendment in Ex parte Young. That
exception “permits a federal court to issue prospective,
injunctive relief against a state officer to prevent ongoing
violations of federal law, on the rationale that such a suit is
not a suit against the state for purposes of the Eleventh
26Although the language of the Eleventh Amendment does not
explicitly apply to suits brought against a state by one of its
own citizens, the Amendment has been construed to bar such
suits. See Equity in Athletics, Inc. v. Department of Educ.,
639 F.3d 91, 107 n.12 (4th Cir. 2011).
41
Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.
2010). “Ex parte Young requires a ‘special relation’ between
the state officer sued and the challenged [provision] to avoid
the Eleventh Amendment’s bar.” Waste Mgmt. Holdings, Inc. v.
Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (quoting Ex Parte
Young, 209 U.S. at 157); see also DeBauche v. Trani, 191 F.3d
499, 505 (4th Cir. 1999) (explaining that the Ex Parte Young
exception “applies only when there is an ongoing violation of
federal law that can be cured by prospective relief”). This
requirement “protects a state’s Eleventh Amendment immunity
while, at the same time, ensuring that, in the event a plaintiff
sues a state official in his individual capacity to enjoin
unconstitutional action, any federal injunction will be
effective with respect to the underlying claim.” McBurney, 616
F.3d at 399 (alteration and internal quotation marks omitted).
Here, the district court concluded that none of the
prospective relief Appellants sought from the BCB Members fit
within the Ex Parte Young exception because these defendants had
no “control or enforcement rights over any agency regarding the
Plaintiffs’ ADHC or other Medicaid services” and thus that
“impos[ing] a prospective injunction on [Loftis and White] would
have no effect whatsoever.” J.A. 1136; see J.A. 1134 (“[T]o
impose a prospective injunction on Governor Haley to cure any
alleged Medicaid violations would have no effect.”); J.A. 1136
42
(“Plaintiffs would not be able to obtain any prospective
injunctive relief from Defendant Cooper in his official capacity
as he is no longer a member of the [BCB] and would have no
authority to provide such relief.”); J.A. 1140 (“Defendant
Chellis is not involved in any ongoing constitutional
deprivations and could not provide Plaintiffs, should they
prevail, with the prospective injunctive relief they seek.”);
J.A. 2372 (“Plaintiffs would not be able to obtain any
prospective injunctive relief from [Leatherman and Eckstrom] in
their official capacities as they would not have any control or
enforcement rights over any agency regarding the Plaintiffs’
ADHC or other Medicaid services.”). Appellants offer no
specific challenge to the district court’s conclusions regarding
Leatherman, Eckstrom, Chellis, and Cooper. And, especially in
light of the fact that the BCB is now abolished, with its
responsibilities having been transferred to the Governor, there
would be no basis to challenge the court’s conclusion regarding
these Appellees.
However, Appellants do challenge the district court’s
analysis concerning Governor Haley. In arguing that Governor
Haley bears the necessary relationship to the ongoing violations
they allege, they note that Appellees “have refused to restore
service levels of waiver participants to the pre-2010 level, . .
. refused to pay for Kobe’s speech services, refused to
43
acknowledge Kobe’s right under the Medicaid Act and ADA to a
speech device and have refused to provide funding for Kobe to
live outside of a congregate setting.” Appellants’ brief at 35.
What Appellants fail to appreciate, however, is that Governor
Haley is not an official with responsibility for these
decisions, nor does she have the authority to change them.
South Carolina has designated DHHS to administer and supervise
Medicaid. See S.C. Code § 44-6-30; see also 42 C.F.R. § 431.10(providing that each state’s Medicaid plan must designate a
single state agency to administer the Medicaid plan). And DHHS
“may not delegate, to other than its own officials, the
authority to supervise the plan or to develop or issue policies,
rules, and regulations on program matters.” 42 C.F.R.
§ 431.10(e). Although Governor Haley appoints DHHS’s Director,
see S.C. Code § 44-6-10, she has no direct authority to
administer South Carolina’s Medicaid plans; rather, she is
limited to reviewing and commenting on proposed plans, see 42
C.F.R. § 430.12(b).
In arguing that injunctive relief against Governor Haley
could nevertheless remedy the ongoing violations that they
allege, Appellants argue that Governor Haley “is the single most
influential individual in the State with the power to influence
the General Assembly to establish a budget and to promulgate
regulations to bring DDSN and DHHS into compliance.”
44
Appellants’ brief at 36. But the fact that a governor, by
virtue of her office, may have political influence over those
who are responsible for ongoing violations and have the
authority to end them does not give the governor the “special
relation” needed to make her a proper defendant under Ex Parte
Young. Cf. Waste Mgmt. Holdings, 252 F.3d at 331 (“The fact
that [a governor] has publicly endorsed and defended the
challenged statutes does not alter our analysis [holding that
the governor lacks the special relation required under Ex Parte
Young to be sued regarding the statutes].). Rather, a more
direct connection is required. The district court therefore
properly ruled that Appellants’ claims against Governor Haley
did not fit within the Ex Parte Young exception.
Appellants next assert that regardless of whether their
claims fit within Ex Parte Young, Governor Haley, Leatherman,
Eckstrom, Chellis, and Cooper were not entitled to be dismissed
regarding Counts One and Two on Eleventh Amendment grounds.
Concerning Count One, Appellants contend that Congress validly
abrogated South Carolina’s Eleventh Amendment immunity as to
claims alleging violations of Title II of the ADA. As for Count
Two, Appellants argue that South Carolina waived its Eleventh
45
Amendment immunity by accepting federal financial assistance for
its Medicaid program. We address these arguments in turn. 27
In their initial brief to us, Appellants argued that the
district court erred in dismissing Count One as against these
Appellees on Eleventh Amendment immunity grounds, maintaining
that Congress validly abrogated the States’ Eleventh Amendment
immunity for claims alleging a violation of Title II of the ADA.
Appellants relied on our decision in Constantine v. Rectors,
George Mason Univ., 411 F.3d 474, 486 (4th Cir. 2005), holding
that “the accommodation requirement of Title II, as it applies
to cases involving the administration of higher education
programs, represents a congruent and proportional response to a
27 Although Appellants opposed dismissal of these Appellees
Eleventh Amendment immunity grounds, it does not appear that
they specifically argued that Congress validly abrogated the
States’ immunity with regard to the ADA claim or that South
Carolina waived immunity to Rehabilitation Act claims by virtue
of accepting Medicaid funds. Rather, Appellants focused their
Eleventh-Amendment arguments on the application of the Ex Parte
Young exception. Nevertheless, Appellees do not assert that
Plaintiffs have waived these arguments by failing to raise them
earlier. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”); Dan Ryan Bldrs., Inc. v. Crystal Ridge Dev., Inc., 783
F.3d 976, 980 (4th Cir. 2015) (“[T]he Supreme Court has long
recognized that a court may consider an issue antecedent to and
ultimately dispositive of the dispute before it, even an issue
the parties fail to identify and brief.” (alteration and
internal quotation marks omitted)).
46
history and pattern of unconstitutional disability
discrimination by States and nonstate government entities.” See
also id. at 484-90. They also drew support from the Supreme
Court’s decision in Tennessee v. Lane, 541 U.S. 509, 533-34
(2004), which held that “Title II, as it applies to the class of
cases implicating the fundamental right of access to the courts,
constitutes a valid exercise of Congress’ § 5 authority to
enforce the guarantees of the Fourth Amendment.”
In their initial brief, Appellees denied that Constantine
and Lane conclusively demonstrated that Congress validly
abrogated the States’ immunity for the type of claim at issue
here. See Appellees’ Brief at 36 (Constantine “holds only that
Title II of the ADA validly abrogated Eleventh Amendment
immunity ‘as it applies to public higher education.’”) (quoting
Constantine, 411 F.3d at 490)). Notwithstanding their argument
that Constantine and Lane did not conclusively resolve the
abrogation issue, Appellees offered no argument that Congress
had not in fact validly abrogated the States’ Eleventh Amendment
immunity.
Additionally, in their initial briefs to us, neither party
discussed or even cited the Supreme Court’s decision in United
States v. Georgia, 546 U.S. 151 (2006). In Georgia, the Supreme
Court noted that in prior decisions the Court had been split
regarding whether Congress had the power under § 5 of the
47
Fourteenth Amendment to abrogate states’ sovereign immunity for
conduct that did not actually violate the Constitution. See id.
at 158-59. The Georgia Court specifically held that “insofar as
Title II creates a private cause of action for damages against
the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.”
Id. at 159. To give guidance to lower courts determining
whether the Eleventh Amendment bars an ADA Title II claim, the
Supreme Court provided a three-part test:
[D]etermine . . . on a claim-by-claim basis, (1) which
aspects of the State’s alleged conduct violated Title
II; (2) to what extent such misconduct also violated
the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the
Fourteenth Amendment, whether Congress’s purported
abrogation of sovereign immunity as to that class of
conduct is nevertheless valid.
Id.; see Babcock v. Michigan, 812 F.3d 531, 534-35 (6th Cir.
2016); see also Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439, 445 (1988) (It is a “fundamental and longstanding
principle of judicial restraint . . . that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them.”); Lors v. Dean, 746 F.3d 857, 864 (8th Cir. 2014) (noting
that “the constitutional question of whether Title V of the ADA
was a valid abrogation of sovereign immunity may be avoided
altogether if the district court correctly determined that the
48
[ADA] claim fails on the merits”). 28 Because neither the parties
nor the district court had addressed Georgia in their briefs, we
requested that the parties file supplemental briefs explaining
the impact of Georgia on the present case.
In their supplemental brief, Appellants suggest that in
light of the district court’s failure to apply the Georgia
framework, “their claims for injunctive relief and damages
should be reassessed by the district court, with instructions to
apply the test set forth in Georgia, except for those claims
which [the Fourth Circuit] may elect to grant summary judgment
in favor of the plaintiffs.” Appellants’ Supp. Brief at 15.
Appellees, in their supplemental brief, do not deny that the
Georgia framework governs the analysis of the abrogation issue
to the extent that Appellants assert a claim for money damages.
Nor do they explain how that analysis should apply to the facts
of this case. They contend that Georgia cannot affect the
outcome of this appeal because none of the claims here are
justiciable – an argument we have now rejected – and because any
ADA liability would be duplicative of liability under the
28
Although Eleventh Amendment immunity is designed “to
protect the State from being subject to suit at all[,] the
Georgia protocol may require the State to defend litigation
before obtaining a ruling on immunity.” Buchanan v. Maine, 469
F.3d 158, 172 n.8 (1st Cir. 2006).
49
Rehabilitation Act to the extent that Eleventh Amendment
immunity is not available.
In light of the existence of the unresolved issue of
whether Congress has validly abrogated the States’ Eleventh
Amendment immunity for Title II claims of the type asserted
here, we hold that dismissing Count One on Eleventh Amendment
grounds, without utilizing the Georgia framework, was premature.
Particularly since Appellees have not yet made any argument
regarding how the Georgia framework would apply to the facts
before us, we decline to apply Georgia in the first instance.
Appellees also argue that regardless of whether Congress
validly abrogated South Carolina’s Eleventh Amendment immunity
regarding the type of claim asserted in Count One, we should
affirm the dismissal of the BCB Members in light of the fact
that no effective prospective relief was available as against
these Appellees – as we have already discussed – and because
Appellants have abandoned any claims for damages asserted
against these Appellees.
We agree that Appellants abandoned any claim for damages in
regard to their claims against Leatherman, Eckstrom, Chellis,
and Cooper when they submitted memoranda to the district court
explicitly representing that they were not seeking damages from
them. See J.A. 1086 (“All of the relief requested by the
Plaintiffs as to Defendant Cooper is prospective.”); J.A. 1115
50
(“Only prospective relief, and attorneys fees, are requested
from [Chellis].”); J.A. 2240 (“[T]he only relief [Appellants]
request from [Leatherman and Eckstrom] is injunctive relief.”).
We therefore affirm the dismissal of Counts One and Two against
these Appellees – the individual-capacity claims as well as the
official-capacity claims – on this basis.
We do not agree, however, that Appellants have abandoned
their claims for money damages against Governor Haley (in her
official capacity). In her memoranda to the district court
supporting her motion to dismiss, Governor Haley suggested that
Appellants were seeking money damages in their claims against
her. See J.A. 290 (“If a plaintiff seeks only retrospective
relief (such as monetary damages), then Ex Parte Young is not an
available means of bringing suit against the state official.”).
It is true that Appellants’ primary response was that the
prospective relief fit within the Ex Parte Young requirements.
But unlike they did with regard to the other BCB Members,
Appellants did not specifically deny Governor Haley’s contention
that they sought retrospective relief as well. Indeed, they
argued that Governor Haley could be liable for the past actions
of others, suggesting that at least part of the relief they were
claiming was retrospective. See, e.g., J.A. 387 (“Plaintiffs
have presented evidence that Haley and her predecessor, Mark
Sanford, had actual or, at least constructive, knowledge of the
51
violations alleged in the amended complaint.”). On reply,
Appellees argued that Appellants had “failed to present any
opposition” to the argument that they did not seek injunctive
relief against Governor Haley except with regard to Count Six.
J.A. 717.
In further support of their abandonment proposition,
Appellees point to a statement by Appellants’ counsel, made to
the district court on September 23, 2014, that Appellants’
lawsuit was not requesting damages other than against the
Babcock Center. As Appellants point out, however, this
statement was made well after Governor Haley – and the other BCB
Members – had been dismissed. And at oral argument before us
Appellants’ counsel denied that her statement was intended to
encompass the claims asserted against the BCB Members. In our
view, counsel’s ambiguous statement made at the summary-judgment
hearing is simply not clear enough to constitute an abandonment
of Appellants’ damage claims asserted against Governor Haley in
her official capacity. See Doe v. Kidd, 501 F.3d 348, 354 (4th
Cir. 2007) (“Federal law is well-settled that waiver is the
voluntary and intentional relinquishment of a known right, and
courts have been disinclined lightly to presume that valuable
rights have been conceded in the absence of clear evidence to
the contrary.” (alteration and internal quotation marks
omitted)). Cf. Santos v. Frederick Cty. Bd. Of Comm’rs, 725
52
F.3d 451, 463 (4th Cir. 2013) (holding that counsel’s ambiguous
statement during argument on summary judgment motion did not
constitute waiver); Feikema v. Texaco, Inc., 16 F.3d 1408, 1417
(4th Cir. 1994) (holding no waiver of claim for damages when,
although “[t]he principal aim” of the arguments opposing the
motion to dismiss were directed at “whether they could obtain
injunctive relief,” the record was ambiguous regarding whether
they intended to continue to pursue a damages claim). We thus
decline to affirm the dismissal of Count One as against the
Governor in her official capacity on this basis but rather
vacate the dismissal of that count against the Governor.
Regarding Count Two, Appellants maintain that states waive
Eleventh Amendment immunity against suit under § 504 of the
Rehabilitation Act by accepting federal financial assistance, as
South Carolina did here with regard to Medicaid. See
Constantine, 411 F.3d at 490-96. For their part, Appellees do
not dispute that South Carolina has waived any Eleventh
Amendment immunity regarding Count Two, but they argue that the
district court properly ruled that the BCB Members were not
named as defendants in Count Two. See Appellees’ brief at 36-37
(“States do waive their Eleventh Amendment immunity under the
Rehabilitation Act by accepting funds, see Constantine, 411 F.3d
at 490-96, but Plaintiffs’ Rehabilitation Act claim is not
asserted against any of the BCB Members.”). We do not read the
53
district court opinions as reaching that conclusion, however.
It is true that in the parts of the district court’s opinions
describing the different counts in the complaint, the district
court did not identify the BCB Members as defendants. Later in
its opinions, though, the court appeared to recognize that Count
Two named the BCB Members. See J.A. 1135 (noting that those
“who were members of the [BCB]” were named as defendants in
Count Two); J.A. 2371 (noting that Leatherman and Eckstrom were
named as defendants in Count Two). In any event, review of the
amended complaint shows that the BCB Members were among the
defendants as to Count Two. See J.A. 225 (allegation in Count
Two of amended complaint that BCB “failed to insure that the
funds allocated to [DDSN] were spent as appropriated by the
General Assembly to provide services, despite warnings from the
South Carolina Legislative Audit Council that [DDSN] was
spending those funds improperly for the purchase of real
estate”). We therefore vacate the dismissal of Governor Haley
as a defendant regarding Count Two.
IV.
In sum, for the foregoing reasons, we vacate the district
court order granting summary judgment against Appellants on
Counts One through Seven on justiciability grounds, and remand
for further proceedings consistent with this opinion. We also
vacate the district court order to the extent that it dismisses
54
Counts One and Two against Governor Haley on the basis of
Eleventh Amendment immunity. However, we affirm the dismissal
of the official- and individual-capacity claims against
Leatherman, Eckstrom, Chellis, and Cooper.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
55