Sue Doe v. Linda Kidd

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:03-cv-01918-MBS Copies to all parties and the district court/agency. [999906923].. [14-1428, 14-1429, 15-1022, 15-1024, 15-1026]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1428

SUE DOE,
Plaintiff - Appellant,
v.
LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; ROBERT KERR;
SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants – Appellees,
v.
SANDRA RAY,
Party-in-interest.

No. 14-1429

SUE DOE,
Plaintiff - Appellee,
v.
LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT KERR,
Defendants – Appellants,
v.

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SANDRA RAY,
Party-in-interest.

No. 15-1022

SUE DOE,
Plaintiff - Appellant,
v.
LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; ROBERT KERR;
SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants – Appellees,
v.
SANDRA RAY,
Party-in-interest.

No. 15-1024

SUE DOE,
Plaintiff - Appellee,
v.
LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; SOUTH CAROLINA
DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT KERR,
Defendants – Appellants,
v.

2

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SANDRA RAY,
Party-in-interest.

No. 15-1026

SUE DOE,
Plaintiff - Appellant,
v.
LINDA KIDD; STAN BUTKUS; KATHI LACY; SOUTH CAROLINA
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; ROBERT KERR;
SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants – Appellees,
v.
SANDRA RAY,
Party-in-interest.

Appeals from the United States District Court for the District
of South Carolina, at Columbia.
Margaret B. Seymour, Senior
District Judge. (3:03-cv-01918-MBS)

Argued:

January 27, 2016

Decided:

August 9, 2016

Before GREGORY, Chief Judge, and KING and WYNN, Circuit Judges.

Vacated and remanded by unpublished opinion.
Chief Judge
Gregory wrote the opinion, in which Judge King and Judge Wynn
joined.

ARGUED:
Armand G. Derfner, DERFNER & ALTMAN, LLC, Charleston,
South Carolina; Patricia L. Harrison, PATRICIA LOGAN HARRISON
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ATTORNEY AT LAW, Columbia, South Carolina, for Appellant/CrossAppellee.
Kenneth Paul Woodington, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellees/Cross-Appellants.
ON
BRIEF: William H. Davidson, II, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellees/Cross-Appellants.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Chief Judge:
This

is

an

appeal

and

cross-appeal

of

an

award

of

attorneys’ fees in a civil rights action brought by Sue Doe, a
young woman with developmental disabilities, including epilepsy,
mild intellectual disability, and cerebral palsy.
this

42

U.S.C.

§ 1983

action

against

the

She filed

South

Carolina

Department of Disabilities and Special Needs (“DDSN”), the South
Carolina Department of Health and Human Services (“DHHS”), as
well as Linda Kidd, Stan Butkus, Kathi Lacy, and Robert Kerr, in
their official capacities as state administrators (collectively,
“defendants”).

The suit alleged that the defendants violated

various sections of the Medicaid Act related to the provision of
services.
This
occasions.

case

has

In

Doe

been
v.

before
Kidd,

this

501

Court

F.3d

348

on

two

(4th

previous

Cir.

2007)

[hereinafter “Doe I”], this Court reversed the district court’s
summary judgment finding in favor of the defendants, holding
that § 1396a(a)(8) of the Medicaid Act creates a private right
of action that is enforceable through § 1983.

501 F.3d at 356.

In Doe v. Kidd, 419 F. App’x 411 (4th Cir. 2011) (unpublished)
[hereinafter “Doe II”], this Court again reversed the district
court’s summary judgment finding in favor of the defendants,
holding

that,

as

a

matter

of

law,

the

defendants

failed

to

comply with the Medicaid Act “through their ongoing refusal to
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finance residential habilitation services at an acceptable . . .
placement to” Doe.

419 F. App’x at 418.

This Court further

held that Doe was “the prevailing party, [and] she is entitled
to attorney’s fees.”
Despite

two

significantly

Id.
successful

reduced

appeals,

Doe’s

request

the
for

district

court

attorneys’

fees,

guardian ad litem fees, and costs, finding, among other things,
that there “ha[d] been no change in the status quo.”

J.A. 2300.

Because this finding, and others, were clearly wrong, we vacate
the

attorneys’

fee

award

and

direct

entry

for

an

award

of

$669,077.20, exclusive of costs; we vacate the guardian ad litem
fee award and direct entry for an award of $39,173.75; and we
remand for further proceedings consistent with this opinion.

I.
A.
The

basic

history

of

this

detail in Doe I and Doe II.

case

is

laid

out

in

further

Below is a brief summary of the

facts.
Medicaid

is

an

optional,

federal-state

program

through

which the federal government provides financial assistance to
states for the medical care of needy individuals.
Hosp. Ass’n, 496 U.S. 498, 502 (1990).
participate

in

the

program,

it
6

must

Wilder v. Va.

Once a state elects to
comply

with

all

federal

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Medicaid laws and regulations.

Id.

DHHS is the state agency

responsible for administering and supervising Medicaid programs
in South Carolina.
treatment

and

DDSN has specific authority over the state’s

training

programs

for

people

with

intellectual

disability.
This case involved the Medicaid waiver program created by
42

U.S.C.

§ 1396n(c),

requirement

that

which

persons

permits

with

states

intellectual

to

waive

disability

the
or

a

related disability live in an institution in order to receive
certain Medicaid services.

See generally Bryson v. Shumway, 308

F.3d 79, 82 (1st Cir. 2002) (“[The program] allow[s] states to
experiment

with

methods

of

care,

or

to

provide

care

on

a

targeted basis, without adhering to the strict mandates of the
Medicaid

system.”).

When

an

individual

in

South

Carolina

applies for DDSN services, including the waiver program, DHHS is
required to make certain determinations.
The waiver application process has three steps:

first,

DHHS needed to decide whether Doe was eligible for any Medicaid
funding; next, DDSN was required to evaluate Doe to determine
what services she was entitled to; and, finally, DDSN had to
decide the most appropriate “level of care” for Doe as well as
the least restrictive environment or care setting.
F.3d at 351.

Doe I, 501

These settings may include, listed in order of the

least to the most restrictive placement (1) a Supervised Living
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Program II (“SLP II”), an apartment where recipients of DDSN
services reside together; (2) a Community Training Home I (“CTH
I”), a private foster home where a services recipient resides
with a family, one member of which is a trained caregiver; or
(3) a Community Training Home II (“CTH II”), a group home with
live-in caregivers for four or fewer recipients.

Id. at 351-52.

Appeals from DDSN decisions are taken to a DHHS hearing officer
and

thereafter

may

be

appealed

to

a

South

Carolina

administrative law judge.
In December 2002, without having made a final decision as
to Doe’s eligibility for a waiver, DDSN placed Doe on the waiver
program’s noncritical waiting list.

Doe appealed this decision

to DHHS, and claimed that DDSN had failed to provide her with
services within a reasonably prompt time frame as required by
federal regulations.

Pending that appeal, DDSN moved Doe to its

critical waiting list in February 2003.

Doe was advised that

she met certain DDSN eligibility requirements in March 2003.
She was then moved to the top of the critical waiting list.
At

a

March

2003

hearing

officer dismissed the matter.

on

the

appeal,

a

DHHS

hearing

He found that, by moving Doe to

the top of the critical waiting list and determining that she
was eligible for services, DDSN had resolved all of Doe’s claims
in her favor.

The hearing officer also found that DDSN had not

provided Doe with services in a “reasonably prompt” period of
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However, because DDSN was then promising to provide Doe
services,

the

hearing

officer

found

that

he

lacked

the

power to provide any other relief and the appeal was dismissed.
In April 2003, DDSN approved a “plan of care” that was
developed

for

Doe

plan”).

The

2003

pursuant
plan

to

42

included

C.F.R.
a

§ 441.301(b)

regime

of

(“2003

personal

care,

psychological evaluations, and other services to be provided inhome at the residence of Doe’s mother.
Doe

“receive

residential

It also recommended that

habilitation

from

a

DDSN

approved

provider” within three months at a “setting located within the
Columbia area to be chosen by her family.”

Doe II, 419 F. App’x

at 414.
In May 2003, in response to the declining mental health of
Doe’s mother, Doe asked to terminate the in-home services and,
per the 2003 plan, receive “residential habilitation services”
in either a CTH I or CTH II.
receive

any

residential

In June 2003, after failing to

habilitation

services,

Doe

initiated

this action, wherein she accused the defendants of violating the
Medicaid

Act.

She

sought

injunctive

relief

from

DDSN,

the

payment of medical expenses, and attorneys’ fees.
In a letter dated June 26, 2003, DDSN authorized CTH I or
SLP

II

services

for

“authorization letter”).

Doe

at

a

residential

center

(the

According to the authorization letter,

an assessment of Doe by DDSN revealed that her needs for “out9

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of-home placement/residential habilitation supervision, care and
skills training” could be met at either of these two placements.
However,

Doe

rejected

the

DDSN

chosen

provider,

the

Babcock

Center, because she believed that the facility could not safely
provide her with appropriate services.

Through August 2003, the

defendants

alternative

and

Doe

discussed

some

placements,

including the possibility of upgrading the services at another
CTH I setting or placement at a CTH II facility closer to her
family.

The

defendants

maintained

that

a

CTH

“represent[ed] the best long-term option” for Doe.

I

setting

Id. at 414.

In an August 16, 2003 letter, DDSN gave Doe permission to
reside in a CTH II facility, where she would receive “respite”
or

temporary

provided

Doe

services.
with

circumstances,

not

CTH

The
II

because

defendants

placement
she

was

contended

because

of

qualified

that

Doe’s

for

the

it

family
most-

restrictive setting; in fact, DDSN found Doe to need a CTH I
(foster home) or SLP II (apartment) setting.
In February 2005, DDSN reevaluated Doe’s eligibility for
Medicaid services.
that

Doe

ineligible

was
for

not
the

Based on this reevaluation, DDSN maintained
intellectually
waiver

disabled

program.

and,

According

therefore,
to

Doe,

is
the

reevaluation was initiated in retaliation for her filing of this
lawsuit.

She also believes it contradicts the Social Security

Administration’s prior determination that Doe is intellectually
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disabled

and

physicians.

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the
Doe

similar

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longstanding

administratively

diagnosis

appealed

this

of

Doe’s

reevaluation.

However, both a DHHS hearing officer and a state administrative
law court judge agreed with DDSN.

See generally Doe v. S.C.

Dep’t of Health and Human Servs., No. 06–ALJ–08–0605–AP, 2008 WL
2828634 (S.C. Admin. L. Ct. June 20, 2008).

Doe appealed.

While Doe’s appeals concerning her eligibility for waiver
services under the Medicaid Act were proceeding in state court,
this Court heard two separate appeals.

In Doe I, this Court

recognized for the first time that § 1396a(a)(8) unambiguously
conferred rights enforceable under § 1983.

In other words, Doe

was entitled to proceed under § 1983 to assert her right to
receive services with reasonable promptness.

Thus, this Court

remanded to the district court the issue of whether Doe had
received, with reasonable promptness, the services authorized by
DDSN in the 2003 plan.

On remand, the district court granted

summary judgment in favor of the defendants on the reasonable
promptness issue, holding that the defendants offered Doe with
CTH I services in June 2003, but she rejected those services.
Doe appealed.
In Doe II, this Court held, as a matter of law, that the
“defendants have violated the Medicaid Act through their ongoing
refusal

to

finance

residential

habilitation

acceptable CTH I placement of [Doe’s] choice.”
11

services

at

an

419 F. App’x at

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421.

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This

continuing

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Court

further

violations

of

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held
the

that,

“given

timeliness

the

defendants’

provisions

of

the

Medicaid Act and its regulations, they are ordered to provide
Doe with services in a SLP II or CTH I facility of her choice
(at

least

pending

the

(emphasis added).

outcome

of

her

state

appeal).”

Id.

This Court reasoned that after Doe rejected

the CTH I services offered in June 2003, the defendants were
still obligated to present her with alternative CTH I services
within a reasonably prompt period of time.
Court reversed

the

district

court,

and

Id.

directed

Because this
it

to

grant

summary judgment in her favor, we found that there could “be no
question

that

Doe

is

the

‘prevailing

§ 1988.

She is therefore entitled to reasonable attorney’s fees

as determined by the district court.”

party’

for

purposes

of

Id. at 420.

After Doe II, the defendants - for well over two years did not provide Doe with CTH I or SLP II possible placements in
order for Doe to decide which facility best suited her needs.
In fact, the district court determined that the defendants did
not comply with this Court’s order - or the Medicaid Act - until
August

2013,

decided.

full

two

and

a

half

years

after

Doe

Doe’s

counsel

II

was

J.A. 2300.

During
several

a

this

possible

same

time

placements

period,
to

the

defendants

presented
that

the

defendants rejected on the basis that Doe was either seeking a
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CTH II placement or additional accommodations inconsistent with
a

“true”

SLP

supervision.

II

placement,

such

as

twenty-four

hours

Unable to reach an agreement, Doe’s counsel filed

a motion for remedial relief with the district court.

On August

12, 2013, the district court ordered that the defendants provide
Doe with a list of all potential qualified SLP II or CTH I
placements every fourteen days until Doe’s state administrative
process is exhausted or Doe accepts a placement, whichever comes
first.

The defendants complied with this order.

In December 2011, some months after the decision of Doe II,
the Supreme Court of South Carolina held that the DHHS hearing
officer

in

the

Medicaid

eligibility

proceeding

should

have

applied a different legal standard under state law about the
latest possible age of onset of intellectual disability.

Doe v.

S.C. Dep’t of Health and Human Servs., 727 S.E.2d 606 (S.C.
2011).
determine

Thus,

the

court

eligibility

remanded

under

the

to

the

hearing

correct

officer

legal

to

standard.

Thereafter, the hearing officer in late 2013 issued an order
finding

that

Doe

was

“mentally

retarded

after

the

age

eighteen years and prior to the age of twenty-two years.”
2285.

The

order

further

held

that

the

determine the appropriate level of care.
appealed.

agencies
Id.

were

of
J.A.
to

Neither party

As a result of the state administrative decisions in

2014, DDSN authorized residential habilitation services in such
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facilities as a CTH II.

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Consequently, this case became moot, as

Doe was provided proper accommodations in a CTH II facility.
B.
On

August

attorneys’
sought

28,

fees.

$1,868,958

2013,
After
in

Doe’s
filing

counsel
an

attorneys’

filed

amended
fees,

a

fee
of

motion

for

petition,

Doe

which

$997,489

represented time expended in the state litigation and $871,469
represented time expended in the federal litigation.

Doe also

sought

for

$19,742,54

guardian ad litem.

in

costs

and

$59,018.75

in

fees

the

After applying the framework set forth in

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir.
2009), the district court determined that Doe’s efforts in the
state litigation were not compensable under § 1988 and that Doe
was entitled to $100,000 in attorneys’ fees, $5,523.13 in costs,
and $3,750 in guardian ad litem fees for the federal litigation.
Both

parties

timely

appealed.

We

possess

jurisdiction

pursuant to 28 U.S.C. § 1291.

II.
We review for abuse of discretion a district court’s award
of attorneys’ fees, but we will only reverse such an award if
the district court is “clearly wrong” or has committed an “error
of law.”

Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)

(citations omitted); see also Mercer v. Duke Univ., 401 F.3d
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199, 203 (4th Cir. 2005) (“A district court’s decision to grant
or deny attorney’s fee[s] under section 1988 is reviewed for
abuse of discretion.”).

III.
The general rule in our legal system is that each party
must pay its own attorneys’ fees and expenses, see Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983), but Congress enacted 42
U.S.C.

§ 1988

to

ensure

that

federal

rights

are

adequately

enforced.

Specifically, Congress “found that the private market

for

services

legal

rights

failed

violations

process.”

with

to

provide

effective

many

access

victims
to

of

the

civil

judicial

City of Riverside v. Rivera, 477 U.S. 561, 576 (1986)

(citations omitted).

“Congress attributed this market failure

in

that

part

afford

to
to

the

fact

purchase

private market.’”

legal

‘[t]hese
services

victims
at

the

ordinarily
rates

set

cannot
by

the

Lefemine v. Wideman, 758 F.3d 551, 555 (4th

Cir. 2014) (quoting City of Riverside, 477 U.S. at 576).
“Section 1988 provides that a prevailing party in certain
civil rights actions may recover ‘a reasonable attorney’s fee as
part of the costs.’”
Unfortunately,
“‘reasonable’

Perdue v. Kenny, 559 U.S. 542, 550 (2010).

Congress
fee,

and

did

not

therefore

explain
the

task

what
of

it

meant

by

identifying

an

appropriate methodology for determining a ‘reasonable’ fee was
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for

the

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courts.”

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Id.

In

Perdue,

the

Supreme

Court

concluded that “a ‘reasonable fee’ is a fee that is sufficient
to induce a capable attorney to undertake the representation of
a

meritorious

civil

rights

case.”

Id.

at

552;

see

also

Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478
U.S. 546, 565 (1986) (“[I]f plaintiffs . . . find it possible to
engage a lawyer based on the statutory assurance that he will be
paid a ‘reasonable fee,’ the purpose behind the fee-shifting
statute has been satisfied.”).

The aim of § 1988, therefore, is

to enforce the covered civil rights statutes, not to provide “‘a
form

of

economic

attorneys.’”

relief

to

improve

the

financial

lot

of

Perdue, 559 U.S. at 552 (quoting Del. Valley, 478

U.S. at 565).
The proper calculation of a reasonable attorneys’ fee award
involves a three-step process.

First, the court must “determine

[the] lodestar figure by multiplying the number of reasonable
hours expended times a reasonable rate.”
243.

Robinson, 560 F.3d at

To ascertain what is reasonable in terms of hours expended

and the rate charged, the court is bound to apply the factors
set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d
714, 717–19 (5th Cir. 1974). 1

Id. at 243–44.

1

Next, the court

We have characterized the twelve Johnson factors as
follows:
(1) The time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
(Continued)
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fees

for

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hours

unrelated to successful ones.”

spent

on

Id. at 244.

unsuccessful

claims

Finally, the court

should award “some percentage of the remaining amount, depending
on the degree of success enjoyed by the plaintiff.”

Id.

The

district court erred on all three steps, particularly the third
step, as it understated Doe’s success.
A.
As a preliminary matter, the defendants contend that the
only reasonable award of attorneys’ fees in this case is an
award of no fees at all.

We disagree.

In Doe II, this Court determined that, in light of our
holding that the defendants continued to violate the timeliness
provisions of the Medicaid Act, “there can be no question that
Doe is the ‘prevailing party’ for purposes of § 1988.”
App’x at 420.

419 F.

This conclusion, however, means only that Doe is

properly perform the legal services rendered; (4) the attorney’s
opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney’s expectations at
the outset of the litigation; (7) the time limitations imposed
by the client or circumstances; (8) the amount in controversy
and the results obtained; (9) the experience, reputation, and
ability of the attorney; (10) the undesirability of the case
within the legal community in which the suit arose; (11) the
nature and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards in similar
cases.
See Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978) (adopting twelve factors for determining the
reasonableness of attorneys’ fees that Fifth Circuit identified
in Johnson).
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eligible for, rather than entitled to, an award of attorneys’
fees.

See

Mercer,

401

F.3d

at

203.

Although

Doe

is

a

prevailing party, the district court has discretion to determine
what constitutes a reasonable fee, a determination that requires
the court to consider the extent of the plaintiff’s success.
See

Farrar

rights

v.

Hobby,

litigation

between

the

success

goes

U.S.

materially

parties,
to

506

the

the

103,

114

alters

degree

the

of

reasonableness

(1992)

the
of

(internal quotation marks omitted)).

(“Once

legal

relationship

plaintiff’s

a

fee

civil

award

overall
. . . .”

If the prevailing party

has recovered only nominal damages or their success is purely
technical or de minimis, the Supreme Court has explained that
“the only reasonable fee is usually no fee at all.”
In

Mercer,

we

set

forth

three

factors

Id. at 115.

for

courts

to

consider in distinguishing cases in which the only reasonable
attorney fee award is no attorney fees.
include:

The Mercer factors

(1) the extent of relief sought compared to the relief

obtained; (2) the significance of the legal issues on which the
plaintiff prevailed; and (3) whether the litigation served a
public purpose.

Mercer, 401 F.3d at 204.

All three factors

easily weigh in favor of an award of attorneys’ fees to Doe.
As for the first factor, Doe, since the inception of this
case, claimed that the defendants violated the Medicaid Act by
providing

her

with

temporary
18

respite

services

instead

of

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providing

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her,

with

Pg: 19 of 39

reasonable

promptness,

the

residential

habilitation services approved in her 2003 plan of care.
Court

agreed,

holding

that

“[t]he

law

places

the

This

burden

on

Defendants to work with Doe to find or establish an acceptable
SLP II or CTH I setting, which, so far, they have utterly failed
to do.”

Doe II, 419 F. App’x at 418.

We further held:

(1) that Defendants never provided Doe with
residential habilitation services in a SLP
II or CTH I setting; (2) that the CTH II
respite services that have been provided to
Doe since July 2003 are not the equivalent
of
the
SLP
II
or
CTH
I
residential
habilitation
services
to
which
she
is
entitled; and (3) that, given Defendants’
continuing
violations
of
the
timeliness
provisions of the Medicaid Act and its
regulations, they are ordered to provide Doe
with services in a SLP II or CTH I facility
of her choice (at least pending the outcome
of her state appeal).
Id.

at

419

(emphasis

added).

In

light

of

these

emphatic

holdings, there can be very little doubt that this Court’s order
“materially alter[ed] the legal relationship between the parties
by modifying the defendant’s behavior in a way that directly
benefit[ed] the plaintiff.”

Farrar, 506 U.S. at 111-12.

Turning to the second factor, we hold that the legal issue
on

which

Doe

prevailed

is

an

important

one.

Doe’s

case

established that § 1396a(a)(8) of the Medicaid Act creates a
private

right

of

action

that

is

enforceable

through

§ 1983.

Doe’s case was the first to so hold in this Circuit, and has

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served as guidance to courts and parties facing this issue and
similar issues that have arisen under the Medicaid Act, and will
continue to do so.

See, e.g., Planned Parenthood of Ind., Inc.

v. Comm’r of Ind. State Dep’t Health, 699 F.3d 962, 975-76 (7th
Cir. 2012); Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570
F.3d 520, 527 (3d Cir. 2009).
the

courthouse

doors

that

This case, unquestionably, opened

had

formerly

been

closed

to

such

actions.
The final factor we must consider is whether the litigation
served a public purpose, as opposed to simply vindicating the
plaintiff’s individual rights. See Farrar, 506 U.S. at 121–22
(O’Connor,

J.,

concurring)

(explaining

that

a

plaintiff’s

“success might be considered material if it also accomplished
some public goal other than occupying the time and energy of
counsel, court, and client”).

As previously discussed, Doe’s

case was the first to establish in this Circuit that a litigant
can enforce their rights under the Medicaid Act through § 1983.
Thus, Doe’s case was important in that it marked a milestone in
the development of the law under the Medicaid Act.
For these reasons, the district court did not abuse its
discretion in determining that Doe was entitled to attorneys’
fees.

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B.
Having determined that the district court did not abuse its
discretion

in

its

determination

that

Doe

is

entitled

to

attorneys’ fees, we turn to the district court’s calculation of
the attorneys’ fee award.
1.
Returning to step one – calculation of the lodestar fee
amount – we find that the district court abused its discretion
in two separate ways:

first, when it determined the prevailing

market rate for similar work in calculating Doe’s lead counsel’s
hours;

and

second,

when

it

reduced

Doe’s

paralegal

and

co-

counsel rates without providing any explanation on why it did
so.

See Robinson, 560 F.3d at 243.

We, however, find no error

in the district court’s twenty-five percent reduction to Doe’s
lead counsel’s and paralegal’s hours for excessiveness.
Doe’s legal team consisted of two lawyers and a paralegal:
Patricia Harrison as lead counsel, Armand Derfner as co-counsel,
and Nancy Law as their paralegal.
attorneys’ fees as follows:

In Doe’s motion, she sought

Harrison’s hourly rate was $425 for

1,770.4 hours; Derfner’s hourly rate was $480 for 148.8 hours;
and Law’s hourly rate was $150 for 317.5 hours.

In total, Doe

sought $871,469 in legal fees for the federal litigation.
The district court determined that, “given lead counsel’s
limited litigation experience, the nature of the case, and the
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market in South Carolina, $280 is an adequate hourly rate” for
Harrison.

J.A. 2299.

explanations,
acknowledging

reduced

The court then, without providing any
Law’s

“Derfner’s

hourly

rate

national

reduced his hourly rate to $450.

to

$85

and,

reputation,”

despite

J.A.

2299,

Further, based on the first

Johnson factor - time and labor expended – the court reduced
Harrison’s and Law’s hours by twenty-five percent.

Therefore,

the district court determined the lodestar multipliers to be as
follows:

Harrison’s hourly rate was $280 for 1,327.8 hours;

Derfner’s hourly rate was $450 at 148.8 hours; and Law’s hourly
rate was $85 at 238.13 hours.

Based on these numbers, the

district court determined the lodestar figure to be $458,985.05.
Both parties appeal the district court’s lodestar calculation.
a.
Both Doe and the defendants contend, for different reasons,
that

the

district

determination
contention

of

that

court

abused

Harrison’s
the

district

hourly
court

its

discretion

rate.
failed

The
to

in

its

defendants’
consider

any

applicable rates in the relevant community is wholly without
merit, as the district court clearly did.

See J.A. 2295-96.

Doe, however, argues that the district court erred by failing to
determine the prevailing market rates in the relevant community,
as required by our precedent.
F.2d 273, 277 (4th Cir. 1990).

See, e.g., Plyler v. Evatt, 902
We agree.
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As the fee applicant, Doe bore the burden of establishing
the

reasonableness

of

those

hourly

rates.

See

id.

A

fee

applicant is obliged to show that the requested hourly rates are
consistent with “the prevailing market rates in the relevant
community for the type of work for which [s]he seeks an award.”
Id.

The evidence we have deemed competent to show prevailing

market rates includes “affidavits of other local lawyers who are
familiar both with the skills of the fee applicants and more
generally

with

the

type

of

Robinson, 560 F.3d at 245.
about

the

appropriate

rate

work

in

the

relevant

community.”

Both parties submitted affidavits
for

Harrison.

Doe

submitted

two

affidavits in support of the requested rate for Harrison – both
affiants testified that $425 per hour is a reasonable rate for
Harrison.

While it appears that the court did not find Doe’s

affidavits persuasive (or the defendants’), it did note that
this was a “complex civil litigation” case.
Despite

its

finding

that

this

J.A. 2296.

was

a

“complex

civil

litigation” case, the district court, remarkably, only reviewed
attorney rates in ordinary run-of-the-mill civil cases.

The

district court reviewed rates in three cases – an employment law
case,

an

intellectual

infringement case.

property

law

case,

and

a

copyright

None of the cases reviewed by the court

could remotely be considered a “complex civil litigation” case.
In fact, the courts in all three cases determined that the cases
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them

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were

special skills.

Pg: 24 of 39

straightforward,

requiring

no

expertise

or

See, e.g., Evans v. Milliken & Co., 7:13-cv-

02908-GRA, 2014 WL 508508 at *2 (D.S.C. Feb. 6, 2014).

In

Evans, for example, the district court determined that a rate of
$280 for two lawyers was appropriate in a case that required no
“special skill.”

Id.

(“While attorneys Kilgore and Giles have

experience in the employment law field and may command premium
rates for work that requires that expertise, the Court believes
that an hourly rate of $280 is appropriate for the type of legal
work performed and for which an award is being made.

In the

opinion of the Court, the work performed in this case relating
to jurisdiction and venue does not require special skill in the
employment

law

area.”);

see

also

H&C

Corp.,

Inc.

v.

PukaCreations, LLC., 4:12-cv-00013-RBH, 2013 WL 2303248 at *2
(D.S.C. May 24, 2013) (“While attorneys Klett and Kanos have
expertise in the intellectual property field and may command a
higher hourly rate for work that requires that expertise, the
Court believes that an hourly rate of $265 is appropriate for
the type of legal work performed and for which an award is being
made.

The

defendant’s

work
default

performed
does

not

in

this

require

case

relating

special

skill

to

the

in

the

intellectual property law area in the opinion of the Court.”
(emphasis added)).

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In support of her motion for attorneys’ fees, Doe cited to
South Carolinians for Responsible Government v. Krawcheck, 2012
WL 2830274 (D.S.C. July 9, 2012).

Like this case, the plaintiff

in Krawcheck brought its case pursuant to § 1983.

The plaintiff

claimed that a South Carolina statute violated its rights under
the First Amendment.

The same district court involved in this

case determined that a rate of $425 was appropriate for lead
counsel – a counsel with less experience than Harrison - in
Krawcheck.

Id. at *2.

Surprisingly, this district court did

not address, let alone distinguish, why the rate in Krawcheck
was inappropriate for this case.
For these reasons, the district court abused its discretion
in its determination of the prevailing market rates in South
Carolina

for

complex

civil

litigation.

Based

on

the

record

before the district court, Doe has more than met her burden of
establishing the reasonable hourly rate for Harrison. 2

2

Likewise, the district court abused its discretion in its
determination of Derfner’s and Law’s hourly rate. The district
court did not provide any reasons on why both rates should be
reduced, and, as the district court is well aware, it must
explain how it arrived at its determination with sufficient
specificity to permit an appellate court to determine whether
the court abused its discretion in the way the analysis was
undertaken.
See, e.g., McCown v. City of Fontana, 565 F.3d
1097, 1102 (9th Cir. 2008); Robinson, 560 F.3d at 245. In fact,
the district court, oddly, acknowledged Derfner’s national
reputation before it reduced his rate. Further, on at least one
other occasion, this district court found an hourly rate of $140
for a paralegal reasonable, which is very near the hourly rate
(Continued)
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b.
Doe and the defendants both contend, for different reasons,
that the district court abused its discretion in its twenty-five
percent

reduction

of

Harrison’s

and

Law’s

excessiveness under the first Johnson factor. 3

hours

for

The defendants

assert that there should have been a greater reduction.

Doe

argues

for

that

excessiveness.

there

should

have

been

no

reduction

For the reasons stated below, we reject both

arguments as baseless and hold that the district court did not
abuse its discretion.
In

determining

the

appropriate

number

of

hours

to

be

included in a lodestar calculation, the district court should
exclude

hours

unnecessary.”

“that

are

excessive,

redundant,

Hensley, 461 U.S. at 434.

or

otherwise

Here, the district

Doe seeks here.
Krawcheck, 2012 WL 2830274 at *2.
Based on
this record, Doe has met her burden in establishing the
reasonable hourly rate for Derfner is $480 and, consistent with
what the district court did in Krawcheck, we find that an hourly
rate of $140 for Law is appropriate.
3

The defendants further argue that the district court
abused its discretion by failing to find Derfner’s hours
excessive under the first Johnson factor.
Defs.’ Opp. Br. at
50.
While it is true that the defendants did object to
Derfner’s hours under this factor, the district court determined
that it was “satisfied with the number of hours billed by
counsel Derfner.”
J.A. 2294.
Moreover, the defendants do not
proffer any reasons as to why Derfner’s hours should be reduced
for excessiveness.
Accordingly, we affirm the district court’s
decision on this issue.
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court

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determined

that

Harrison’s

Pg: 27 of 39

hours

should

be

reduced

by

twenty-five percent for excessiveness because her time “includes
numerous

entries

for

copying,

organizing

files,

and

other

clerical/paralegal tasks,” and “the court was required to hold a
hearing

and

inappropriate
depositions.”

issue

an

questions

order
that

J.A. 2294.

instructing
could

not

lead
be

counsel

propounded

as

to

during

Similarly, the court concluded that

Law’s hours were excessive because she included an exorbitant
amount of time reviewing the file and performing clerical tasks.
Id.

We find no abuse of discretion in these findings, and will

not accept the parties’ invitation to reweigh the evidence. 4

We

therefore affirm the court’s twenty-five percent reduction.

4

Doe makes the passing argument that the district court
abused its discretion because it did not take into account over
three hundred “hours of voluntary reductions” made by Harrison.
It can hardly be said that the district court abused its
discretion because it failed to take into account a reduction by
Harrison in her hours, some of which were reduced because of
billing errors on her end.
Doe Br. 15.
Further, it appears
that Doe does not even contest the district court’s reduction
for Law.
Thus, we reject Doe’s argument as meritless.
See
Brodziak, 145 F.3d at 196 (stating that we will only reverse an
attorney’s fee award if the district court is “clearly wrong” or
has committed an “error of law”).
The defendants assert that the district court should have
reduced Harrison’s and Law’s hours by a greater percentage for
excessiveness.
The defendants only cite a chart that they
prepared for the district court – with vague numbers indicating
what they believed was excessive billing. The court considered
and, in exercising its judgment, declined to adopt the
defendants’ chart.
The defendants cannot seriously argue that
the court abused its discretion; in fact, the defendants only
(Continued)
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2.
After

determining

the

lodestar

figure

–

hours

expended

multiplied by attendant rates - a court is obliged to “subtract
fees for hours spent on unsuccessful claims unrelated to the
successful ones.”

Grissom v. Mills Corp., 549 F.3d 313, 321

(4th Cir. 2008).
Here,

the

district

court,

in

a

very

cursory

analysis,

stated that the “defendants’ arguments are well taken,” cited a
vague chart provided by the defendants, and then significantly
cut Doe’s lead counsel and paralegal hours as follows:
hours

were

cut

from

the

court’s

calculation

of

700

Harrison’s

lodestar hours, resulting in a fifty-two percent reduction; and
70 hours were cut from the court’s calculation of Law’s lodestar
hours, resulting in a thirty percent reduction.

The court did

not provide any reasons on why it made such a steep cut; it just
cited a chart prepared by the defendants.
The chart the defendants proffered, and the district court
relied so heavily on, provides very vague categories of hours
they believed Harrison and Law spent on unsuccessful claims.
For example, one category is, interestingly, entitled “Vague.”

generally remark that the court “erred in not making the greater
reductions [they suggested] to the hours of Harrison and Law.”
Defs.’ Br. 50-51. The defendants, however, proffer no arguments
on why they believe the district court abused its discretion.
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J.A. 2185.

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Another category is labelled “Not related to matters

actually litigated,” id., but it does not contain what those
matters are.

Further, the defendants asked the district court

to deduct hours for work that Doe’s lawyers performed after Doe
II, including seeking placement in a facility that this Court
said was appropriate.

This chart – besides being completely

useless and unhelpful – cannot support any reductions, let alone
such significant reductions, made by the district court.
Therefore,
twenty-five
tasks, 5

and

because

percent
because

the

reduction
the

district
for

district

court

already

excessiveness
court’s

and

reliance

made

a

clerical
on

the

defendants’ chart was clear error, we find that a reduction for
hours spent on unsuccessful claims is unwarranted.

5

We have serious concerns that the district court, because
it did not state with any specificity the reasons for the
substantial reduction in hours for unsuccessful claims, may have
double
counted
a
Johnson
factor
already
considered
in
calculating the lodestar. See, e.g., Black v. SettlePou, P.C.,
732 F.3d 492, 502 (5th Cir. 2013) (“The lodestar may not be
adjusted due to a Johnson factor that was already taken into
account during the initial calculation of the lodestar.”);
Millea v. Metro–N. R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011)
(“[A] court may not adjust the lodestar based on factors already
included in the lodestar calculation itself because doing so
effectively double-counts those factors.”). Surely, the twentyfive percent reduction for excessiveness would cover several
categories in the “unsuccessful aspects of the case” chart
provided by the defendants, such as the “discovery,” “clerical,”
and “Post-Doe II.”
Compare J.A. 2185 (defendants’ chart
providing hours spent on unsuccessful aspects of the case), with
J.A. 2187 (defendants’ chart for excessive hours).
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3.
In the final step before making an attorneys’ fee award
under § 1988, a district court must “consider the relationship
between the extent of success and the amount of the fee award.”
McAfee v. Boczar, 738 F.3d 81, 92 (4th Cir. 2013); see also
Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)
(“Once

the

court

has

subtracted

the

fees

incurred

for

unsuccessful, unrelated claims, it then awards some percentage
of

the

remaining

amount,

depending

enjoyed by the plaintiff.”).

on

the

degree

of

success

The court will reduce the award if

“the relief, however significant, is limited in comparison to
the scope of the litigation as a whole.”

Hensley, 461 U.S. at

439–40.

recognized

Indeed,

the

Supreme

Court

has

that

the

extent of a plaintiff’s success is “the most critical factor” in
determining a reasonable attorneys’ fee under § 1988.
436.

What

the

court

must

ask

is

whether

“the

Id. at
plaintiff

achieve[d] a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award.”

Id. at

434.
After the district court completed the first two steps, it
calculated the remaining fees to be $265,675.05.
reduced

that

number

to

$100,000,

or

The court then

sixty-three

percent,

because “there ha[d] been no change in the status quo.”
2300.

J.A.

The district court reasoned that “DDSN was required to
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tender alternate placement in a CTH I or SLP II facility in 2003
when the initial offer was rejected.”
counsel’s

objective

in

this

Id.

litigation

And, because “lead
has

been

to

obtain

residential habilitation in a CTH II facility, a remedy this
court could not provide,” Doe’s success has been “limited under
the circumstances.”

Id.

The district court’s analysis grossly

understates Doe’s success.
As Doe observed in her brief, the litigation was vigorously
contested by the defendants at every step, and in view of the
district court’s rulings, Doe was required to appeal twice to
this Court, each time succeeding in her effort.

As a result,

Doe contends, and we agree, that her case changed the legal
landscape

under

the

Medicaid

Act.

For

reasons

previously

discussed, see supra Part III.A, this case opened the courthouse
doors

to

claims

that

courts

in

this

Circuit,

including

district court, had routinely closed on plaintiffs.
now

can

§ 1983

enforce
–

a

their

direct

rights

result

under

of

the

Doe’s

Medicaid

efforts

in

this

Plaintiffs
Act

through

this

case.

Importantly, the district court failed to recognize that the
defendants – not Doe – repeatedly violated the Medicaid Act,
even after Doe I and Doe II was decided.
August

2013,

defendants

two

came

and
into

a

half

years

compliance

after
with

It was not until
Doe
the

II,

that

Medicaid

the
Act.

Moreover, the fact that the state administrative body found in
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Doe’s favor – allowing her to seek CTH II placement – before
this district court awarded her appropriate relief, does not
diminish what Doe accomplished in this case.
For these reasons, the district court abused its discretion
in imposing a sixty-three percent across-the-board reduction of
the fee request.
*****
Under such circumstances, we typically would remand this
case for further work by the district court and the lawyers.

We

have recognized, however, that “[a] request for attorney’s fees
should not result in a ‘second major litigation.’”

Rum Creek

Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994)
(citing Hensley, 461 U.S. at 437 n.12).
Consistent with Rum Creek, and to avoid further expense and
the

nonessential

use

of

judicial

resources

associated

with

remand proceedings and other appeals, we are satisfied to vacate
the

attorneys’

follows:

fee

award

and

direct

that

it

be

entered

as

Harrison shall receive a rate of $425 an hour for

1,327.80 hours (1770.4 x .75, which reflects the twenty-five
percent reduction), for a total of $564,315; Law shall receive a
rate of $140 (the same rate this district court determined to be
reasonable in Krawcheck) for 238.13 hours (317.5 x .75, which
reflects

the

twenty-five

percent

reduction),

for

a

total

of

$33,338.20; and Derfner shall receive a rate of $480 for 148.8
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hours for a total of $71,424.

Pg: 33 of 39

In total, Doe is entitled to

$669,077.20 in fees, exclusive of costs.

See id. (modifying

award of attorneys’ fees “[t]o avoid further litigation expenses
that

would

follow

a

remand

and

the

risk

fees,

Doe

of

yet

a

fourth

to

assess

appeal”).
C.
In

addition

to

attorneys’

sought

guardian ad litem fees against the defendants in the amount of
$39,173.75

for

the

federal

litigation,

hours at a rate of $175 per hour. 6

which

included

223.85

The district court determined

that $3,750 was appropriate in guardian ad litem fees, reducing
the guardian ad litem hourly rate to $75 and hours to 50.

The

district court reasoned that even if a guardian ad litem’s fees
and expenses may be taxed as costs under Rule 54(d), those costs
and fees may not include services the guardian ad litem performs
as attorney to Doe.

J.A. 2301 (citing Kollsman v. Cohen, 996

F.2d 702, 706 (4th Cir. 1993)).

Because “much of the work

performed by the guardian ad litem included legal work,” the
district court significantly reduced Doe’s request.

Id.

Doe

then filed a motion for reconsideration under Federal Rule of

6

In total, Doe sought $59,018.75 in guardian ad litem fees,
which included hours spent by the guardian ad litem in both the
federal and state litigation (337.25 hours at a rate of $175 per
hour).
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Procedure

59(e),

which

Pg: 34 of 39

the

district

court

denied

for

similar reasons.
We review the denial of a Rule 59(e) motion for abuse of
discretion.

Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,

Inc., 674 F.3d 369, 378 (4th Cir. 2012).
may only be granted in three situations:

A Rule 59(e) motion
“(1) to accommodate an

intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.”
Courts

have

interpreted

Federal

Id.
Rule

of

Civil

Procedure

54(d) to allow taxation of guardian ad litem expenses as costs
against

the

United

States.

See

Kollsman,

996

F.2d

at

702;

Lebron v. United States, 279 F.3d 321, 332 (5th Cir. 2002).
Rule 54(d) states, “costs - other than attorneys’ fees – should
be allowed to the prevailing party.”

Fed. R. Civ. P. 54(d).

Where the same person performs services as a guardian ad litem
and as an attorney, only fees for services rendered in the role
of guardian ad litem are taxable as costs.
States,

971

F.2d

1499,

1510

(10th

Cir.

Hull v. United

1992).

It

is

well

recognized that the guardian ad litem serves essentially as an
officer

of

plaintiff.

the

court

and

looks

after

the

interests

of

the

See Kollsman, 996 F.2d at 702; Hull, 971 F.2d at

1510; duPont v. S. Nat. Bank of Hous., 771 F.2d 874, 882 (5th
Cir. 1985); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835,
34

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854 (D.C. Cir. 1981); Franz v. Buder, 38 F.2d 605, 606 (8th Cir.
1930).

The guardian ad litem is there not only to manage the

litigation for the incompetent but also to assist the court in
performing

its

interests.
guardian

duty

See
ad

to

zealously

Kollsman,

litem’s

996

“costs

chargeable under Rule 54.”

protect

F.2d

and

at

the

706.

expenses

incompetent’s
As

are

such,

the

appropriately

Id.

Even if the guardian ad litem performed legal tasks for the
plaintiff,

such

as

legal

research,

the

court

can

tax

these

expenses as costs so long as the guardian ad litem did not
perform the legal tasks in the role of the plaintiff’s attorney.
Hull v. United States, 53 F.3d 1125, 1128 (10th Cir. 1995).
the

extent

that

the

guardian

ad

litem

was

performing

To
her

guardian role - acting as an officer of the court and looking
after the interests of the plaintiff - the defendant should pay
the guardian ad litem fees.
In 2003, the district court appointed Dr. Sandra Ray to
serve as Doe’s guardian ad litem pursuant to Federal Rule of
Civil Procedure 17(c).

Dr. Ray was selected as guardian ad

litem because of her specialized experience working with persons
who have mental and physical disabilities.

Dr. Ray has logged

223

There

hours

in

the

federal

litigation.

was

active

litigation in this case for over eleven years (2003-2014), which

35

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means Dr. Ray spent, on average, approximately 20.27 hours per
year as guardian ad litem to Doe.
Dr. Ray provided all of her time entries with a description
of what she spent the time on to the district court.

It is

clear that Dr. Ray at no point performed legal tasks on behalf
of Doe, but, instead, was looking after Doe’s interests.

For

example, she would review filings in this Court, spending a half
hour and up to an hour and a half reviewing appellate briefs.
Similarly,

Dr.

interrogatories.

Ray

would

review

Doe’s

responses

to

This is hardly performing legal tasks in the

role as Doe’s attorney, as Dr. Ray never drafted any documents,
filed any documents, or conducted legal research in this case.
In fact, this is what courts expect from a guardian ad litem –
to zealously protect the incompetent’s interests.
996 F.2d at 706.

See Kollsman,

For these reasons, we find that the district

court erred in reducing the guardian ad litem’s hours.
We

further

find

that

the

district

court

determination of the guardian ad litem’s rate.

erred

in

its

The district

court, citing no authority or declarations, determined a rate of
$75 per hour to be adequate.
supporting

the

rate

Doe provided two declarations

requested

for

Dr.

Ray.

Both

affiants

testified that $175 is a reasonable hourly rate for a guardian
ad litem in South Carolina for a complex case, as both affiants
have

received

rates

between

$150-$250,
36

depending

on

the

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complexity of the case.

Pg: 37 of 39

Further, while there are not many cases

that discuss the rate of the guardian ad litem, courts have
recently

determined

reasonable

for

a

that

hourly

rates

case,

albeit

complex

of
in

$200

and

$350

different

are

markets.

See, e.g., Jacobs v. United States, No. 08-civ-8061, 2012 WL
5504783, at *23 (S.D.N.Y. Nov. 13, 2012) (guardian ad litem rate
of

$350

1017L,

reasonable);
2002

WL

Metro.

32140310,

Life

at

Ins.

*4

Co.

(N.D.

v.

Tex.

Brown,
Dec.

300-cv-

23,

2002)

(guardian ad litem rate of $200 reasonable).
We,

therefore,

direct

that

the

district

court

enter

an

order awarding Doe with the total amount - $39,173.75 - she
requests in guardian ad litem fees for the federal litigation.
D.
The district court determined that Doe was not entitled to
any fees related to the state litigation.

The court reasoned

that the work performed by counsel in state court related to the
defendants’ determination to terminate the benefits to which it
had found Doe entitled to in 2003.

In other words, because DDSN

maintained that Doe was not intellectually disabled, she was no
longer

eligible

for

the

waiver

program.

The

court

further

reasoned that the “state court proceedings were not necessary to
advance the litigation in this court, i.e., whether Defendants
provided placement at a qualified CTH I or SLP II facility with
reasonable promptness.”

J.A. 2293.
37

We disagree, and find that

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the state litigation “was both useful and of a type ordinarily
necessary to advance the civil rights litigation to the stage it
reached,” see Webb v. Dyer Cty. Bd. of Educ., 471 U.S. 234, 243
(1985), before Doe ultimately received a placement she believed
would address her needs.
In 2003, the defendants determined that Doe was eligible
for the Medicaid waiver program and authorized CTH I or SLP II
services for Doe at a residential center.
filed

this

suit

habilitation

after

services.

failing
Doe

to

sought

That same year, Doe

receive
an

any

residential

injunction

that

would

require the defendants to provide the services that they deemed
she was eligible for with reasonable promptness, as required by
the

Medicaid

Act.

Rather

timeliness

provisions,

determining

(wrongly)

than

the

that

comply

defendants

she

no

longer

with

the

Medicaid

reevaluated
met

the

Doe,

state-law

definition of intellectual disability; Doe thus was ineligible
for the waiver program.
first,

she

could

waive

At that point, Doe had two options:
her

right

to

appeal

the

defendants’

determination through state proceedings, and, consequently, give
up her claim for injunctive relief in this case.

Second, she

could do exactly what she did here – challenge the defendants’
determination in state administrative proceedings in order to
enforce her rights under the Medicaid Act.

The “choice,” if we

can call it that, was easy, as the penalty was clear.
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And,

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because

Doe

Pg: 39 of 39

successfully

challenged

the

defendants’

determination in state proceedings, she received the relief she
desperately

sought

–

this

Court

ordered

the

defendants

to

provide Doe with services in a SLP II or CTH I facility of her
choice in a reasonably prompt manner.
that

the

state

litigation

“was

For this reason, we find

both

useful

and

of

a

type

ordinarily necessary to advance the civil rights litigation to
the stage it reached.”

See Webb, 471 U.S. at 243.

We therefore remand to the district court for appropriate
consideration

of

Doe’s

request

for

fees

in

the

state

administrative proceedings.

IV.
For the foregoing reasons, we vacate the attorneys’ fee
award and direct entry for an award of $669,077.20, exclusive of
costs; we vacate the guardian ad litem fee award and direct
entry for an award of $39,173.75; and we remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED

39