Kobe v. Nikki Haley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cv-01146-MBS. Copies to all parties and the district court/agency. [999987319]. [15-1419]

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UNPUBLISHED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;

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UNNAMED ACTORS
BABCOCK CENTER,

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ASSOCIATED

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WITH

THE

BABCOCK

CENTER;

THE

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,
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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.

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PER CURIAM:
“Kobe”

and

“Mark”

(“Appellants”) 1

appeal

district

court

orders dismissing certain defendants and then granting summary
judgment

to

others

administration

of

in
a

an

action

South

primarily

Carolina

pertaining

Medicaid

waiver

to

the

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

through Seven.
Two

against

judgment

against

Appellants

on

Counts

One

We also vacate the dismissal of Counts One and

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

1

Appellants are using pseudonyms to protect themselves from
possible retaliation.

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the

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South

(“DHHS”).

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Carolina

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Department

of

Health

and

Human

Services

See Doe v. Kidd, 501 F.3d 348, 351 (4th Cir. 2007).

DHHS, in turn, contracts with the South Carolina Department of
Disabilities
Carolina’s

and

Special

treatment

and

Needs

(“DDSN”)

training

to

programs

intellectual and related disabilities.

operate

for

South

people

with

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.
§ 44-20-385.

S.C. Code

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

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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

“[s]ervice[]

provided

events
to

and

meals.

individuals

Respite

unable

to

care
care

is
for

themselves [that is] furnished on a short-term basis because of
the

absence

or

need

providing the care.”
Administration

for

relief

of

those

persons

normally

J.A. 2894.
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).

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themselves,

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but

as

to

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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

services the appropriations were intended to fund.
maintain

that

the

problem

has

been

compounded

for

the

Appellants
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.
changes

included

the

elimination

of

physical

The

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.

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specific

client

could

conditions

receive

up

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were
to

present,

240

hours

in

which

case,

per

month

upon

the
DDSN

approval. 4
Appellants

contend

that

although

government

officials

represented that the waiver changes were motivated by budget
concerns,
They

in

fact

further

the

maintain

changes
that

increased

costs

notwithstanding

significantly.
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.

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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.

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88-405(K).

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Appellants

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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

Assembly.

by

its

Meanwhile,

governing

Appellants

board

maintain

or
that

the

General

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
dealing

at

issue

in

primarily

government.”

with

case,
the

acted

fiscal

as

“an

affairs

executive
of

the

body
State

State ex rel. McLeod v. Edwards, 236 S.E.2d 406,

406-07 (S.C. 1977).
July 1, 2015.

this

However, the BCB was abolished effective

See South Carolina Restructuring Act of 2014,

S.C. Act No. 121 (S. 22) (2014).
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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

Center; 7

Babcock

statewide

accounting

improvement

of

$3,244,738

system;

DDSN’s

and

Medicaid

was

to

be

$100,000

billing

used

was

system.

for

for

a

the

Appellants

contend the transfer of these funds, which the General Assembly
had

intended

would

be

spent

on

ID/RD

waiver

essentially gave the BCB control over the $3,244,738.

services,
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.
in

2011,

he

was

39

years

At the time this suit was filed

old

7

and

he

lived

in

a

community

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).

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training

home

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at

the

Babcock

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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
that

determined

ADHC
he

services,
no

Kobe’s

longer

service

satisfied

coordinator

the

medically

complex/extensive assistance requirement and thus was no longer
eligible to continue to receive ADHC services.
the decision to the DDSN Director.

Kobe appealed

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

to

2008

develop

his

painful

then-current
ulcers

on

wheelchair

his

was

buttocks.

causing
He

him

asserts

that

although a wheelchair was inserted into his plan of care in
January
needed

2008,
until

he

did

April

not

2009.

actually
Then

receive

shortly

the

wheelchair

thereafter,

his

he
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.
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His broken wheelchair prevented him from attending Hope Bridge
from December 28, 2010, until January 18, 2011.
return,

the

wheelchair

remained

damaged

and

ways that sometimes left him “in bed for days.”
Kobe’s

efforts

to

obtain

the

Even after his
malfunctioned
J.A. 3656.

equipment

communicate also have often been unsuccessful.

in

he

needs

to

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.

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movements.
staff

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Such a device would enable him to communicate with

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,

in

he

has

lived

with

his

adult

sister

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,

pendency

of

eligibility

although

the

his

appellate

decision

to

upheld the decision.

the

services

continued

process.
DDSN

Mark

Director,

but

during

the

appealed

the

the

Director

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
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Appellants

brought

this

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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.”
The
violation

amended
of

the

J.A. 220, see J.A. 225, 228, 231.
complaint
Americans

asserts
with

causes

of

Disabilities

action
Act

of

for
1990

(“ADA”), see 42 U.S.C. §§ 12101 et seq. (Count One); violation
9

Originally there was a third plaintiff, who was eventually
voluntarily dismissed from the suit.
10

Among 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.

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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

11

Counts 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.
12

The 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)
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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.

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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

private provider.

operated

by

United

Cerebral

Palsy,

a

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

wheelchair continued after filing this suit.

a

working

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

13

year

had

passed

after

Kobe’s

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.

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speech

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evaluation,

Kobe

was

Pg: 19 of 55

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 thenexisting 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
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services,

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physical

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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.
consent

order

identical

to

satisfied

memorializing
that

the

requirement.

of

the

Kobe’s

agreement

and

medically

thus

An August 2012

contained

established

complex/extensive

language
that

Mark

assistance

Like Kobe’s ADHC services, Mark’s never lapsed.

Shortly after resolving Appellants’ administrative appeals,
DHHS

eliminated

requirement

that

the
had

medically
been

the

complex/extensive
basis

for

assistance

Appellants’

service

coordinators’ initial decisions (“the 2011 Policy Change”).
Motions to Dismiss and for Summary Judgment

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As the present lawsuit continued, Governor Haley, Loftis,
White, Cooper, and Chellis filed motions to dismiss the claims
against

them,

arguing

variety of reasons.

they

were

entitled

to

dismissal

for

See Fed. R. Civ. P. 12(b)(1), (6).

a

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

asserted

that

Ex

parte

as

to

Young,

209

Loftis,

U.S.

White,

123

(1908).

Cooper,

and

Appellants were seeking prospective relief only.
(“Plaintiffs

.

.

.

seek

only

prospective

They

Chellis,

See J.A. 781
relief

against

Defendants Loftis and White.”); J.A. 1086 (“All of the relief
requested

by

prospective.”);

the

Plaintiffs

J.A.

1115

as

(“Only

to

Defendant

prospective

Cooper
relief,

is
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

official

capacities,

claims

the

asserted

district

against

court

them

concluded

in

their

that

these

defendants were entitled to Eleventh Amendment immunity as a
matter

of

law.

The

court

ruled
21

that

the

Ex

Parte

Young

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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

ongoing

real

estate.

violations,

defendants

had

administration

the

the
of

Regarding
court

concluded

requisite

the

state’s

prospective
that

special
Medicaid

relief

none

of

connection
program

these

to

such

for

that

the
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
injunction

relief;
be

the

entered

court

against

reasoned
them,

that

they

even

did

not

should
occupy

an
any

positions through which they could remedy Appellants’ claimed
injuries.

The

court

also

ruled

that

they

were

entitled

to

motion

to

legislative immunity.
Leatherman

and

Eckstrom

subsequently

filed

a

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
22

Eleventh

Amendment

immunity

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because

the

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Ex

Parte

Young

Pg: 23 of 55

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.
DDSN

Appellees,

in

particular,

mooted Appellants’ claims.
Change

mooted

any

issue

contended

that

several

The

events

They argued that the 2011 Policy
about

Appellants’

entitlement

prospective relief protecting their right to receive ADHC.

to
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

14

regarding

the

service

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.

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coordinator’s original decision.
also

argued

that

Appellants

The Babcock Center Appellees

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

doctrine
claims

“voluntary
prevented

concerning

cessation”

the

2011

their

exception

Policy

ADHC

Change

eligibility,

to

the

from

mootness

mooting

Kobe’s

the

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.
the

denial

was

DHHS’s response stated that the reason for

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.

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ACD

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with

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pre-recorded

synthesized

speech,

Pg: 25 of 55

messages,

would

be

as

opposed

adequate

for

to

an

that

Rather

him.

ACD

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

Technology Exchange Program” (the “USC Program”).

Assistive
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.

unit

attached

was

not

to

However, as of January 2, 2014, the
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
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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

asserting
Appellees),

on

state

law

and

denied

all

claims

claims

(except

against

Appellants’

for

the

Count

Eight,

Babcock

motion. 17

The

Center
district

court’s decision was based on a combination of three grounds
relating to justiciability:

(1) that Kobe’s entitlement to a

wheelchair

he

was

mooted

when

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).

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would

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cause

him

to

Pg: 27 of 55

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
grounds.

the

grant

of

summary

See Fed. R. Civ. P. 59(e).

judgment

on

a

variety

of

As is relevant here, they

contended that the district court ignored much of the factual
predicate
explain

supporting

its

specifically

decision

several
to

emphasized

of

dismiss
the

their
several

court’s

claims
other

failure

and

failed

claims.

to

address

to

They
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
27

beneficiaries

of

the

DHHS

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funds used to purchase real estate.

They contended

challenges

were

to

illegal

policies

ripe

that their

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
Regarding

court
a

later

contention

denied
by

Appellants’

Appellants

that

Rule

59(e)

the

court

motion.
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.

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on

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justiciability

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grounds

on

Pg: 29 of 55

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).

19

Summary judgment is

At the summary judgment hearing, Appellants abandoned any
damages claims against the remaining defendants.

29

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appropriate

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“if

the

movant

Pg: 30 of 55

shows

that

there

is

no

genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
In

order

for

the

Fed. R. Civ. P. 56(a).

federal

courts

to

have

jurisdiction,

plaintiffs must possess standing under Article III, § 2 of the
Constitution.
2013).

See David v. Alphin, 704 F.3d 327, 333 (4th Cir.

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.”
30

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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.”
133

S.

Ct.

1017,

1023

(2013)

(some

Chafin v. Chafin,

internal

quotation

marks

omitted).
Another

“Article

III

threshold

“dispute is ripe for adjudication.”

question”

is

whether

a

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
Dep’t

impact
of

remains

State

wholly

Police,

713

speculative.”

Doe

F.3d

(4th

745,

(internal quotation marks omitted).

758

v.

Virginia

Cir.

2013)

“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

ripeness,

we

quotation

traditionally

marks

omitted).

consider

“(1)

the

When

determining

fitness

of

the

issues for judicial decision and (2) the hardship to the parties
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of withholding court consideration.”
F.3d

226,

omitted).

240

(4th

Cir.

2013)

Cooksey v. Futrell, 721
(internal

quotation

marks

“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

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Appellants’

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brief

at

44.

Pg: 33 of 55

They

also

contend

that

the

caps

affecting the amount of respite care Mark can receive have not
been

eliminated.

Appellees

have

They

argue

voluntarily

that

ceased

even
some

to
of

the
the

extent

that

complained-of

conduct by confirming their eligibility for ADHC or providing
them with requested services and equipment, exceptions to the
mootness doctrine apply.
court

failed

justiciability

to

And they maintain that the district

explain

justified

how

its

granting

conclusions

summary

regarding

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
district

and

services.

court’s

implicit

Then,

finally,

conclusion

we

that

will
the

address

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 respitehours 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)
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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.
22

Appellants 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.

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court of its power to determine the legality of the practice”
unless

it

is

“absolutely

clear

that

the

allegedly

behavior could not reasonably be expected to recur.”

wrongful

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.”).
compelled
ways.”

to

leave

the

Without that rule, “courts would be

defendant

free

to

return

to

his

old

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

evading review.’”

dispute

is

‘capable

of

repetition,

yet

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)).
Supreme Court has explained
35

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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

Appellees’

ADHC

services

challenged

was

conduct.

a

voluntary

Appellants

cessation
maintain

of
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.
(4th Cir. 2013).

See Pashby v. Delia, 709 F.3d 307, 316

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

the

meaning

were

of

“not

that

.

.

doctrine,

.

voluntary
but

w[ere]

cessation[s]
instead

the

[Appellants’] successful administrative appeal[s].”

36

within
result

of

Oregon Nat.

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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

Appellants’
needs

for

the

claims

opposite

conclusion,

however,

regarding

Appellees’

responses

particular

equipment

and

technology.

concerning
to

Kobe’s

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.
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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

complained-of

carried

the

pattern

of

heavy

burden

allegedly

of

showing

the

delays

unreasonable

that

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

especially uncertain.
doctor

ordered,

with

regard

to

the

ACD

seem

DHHS denied his request for the ACD his

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

requests

return

of

this
the

case
ACD

is
or

completed,
if

Kobe

the

needs

USC
it

Program

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

23

at

316

(holding

that

state

In 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.

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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”).
to

be

concerned

in

light

And Kobe certainly has reason

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

Appellees

have

not

met

to

his

their

quality

“heavy

of

life.

burden”

of

In

sum,

showing

that

after this litigation has concluded, Kobe will not once again
find

himself

without

the

equipment

he

needs

and

ability to obtain it without significant delay.
conclude

that

to

the

extent

Appellants

without

any

We therefore

challenge

Appellees’

response to Kobe’s need for equipment, his challenges are not
mooted by Appellees’ temporary satisfaction of his needs during
the

pendency

district

of

court’s

Appellants

on

this

lawsuit.

order

granting

justiciability

Accordingly,
summary

grounds,

and

we

vacate

judgment
remand

for

the

against
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
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several of their claims.
explain

in

any

Pg: 40 of 55

Indeed, the district court did not

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

through

summary

Seven

and

judgment
remand

against
to

the

Appellants
district

on

court

Counts
for

One

further

consideration of the viability of each of Appellants’ claims
against each of the Appellees.
court

concludes

on

remand

To the extent that the district

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

Chellis,

BCB
and

Members
Cooper

–
–

Governor
on

the

Haley,
basis

Leatherman,
of

Eleventh

Eckstrom,
Amendment

immunity. 25

24

We express no view on any issue not addressed in this
opinion, whether related to justiciability or otherwise.
25

Appellants do not appeal the dismissal of Loftis, White,
or Sanford.

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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.
exception

“permits

a

federal

court

to

issue

That

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

26

for

purposes

of

the

Eleventh

Although 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

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Amendment.”
2010).

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Pg: 42 of 55

McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.

“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”).
requirement

“protects

a

state’s

Eleventh

Amendment

This

immunity

while, at the same time, ensuring that, in the event a plaintiff
sues

a

state

official

unconstitutional

in

his

action,

any

individual
federal

capacity

to

injunction

effective with respect to the underlying claim.”

enjoin

will

be

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
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(“Plaintiffs

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would

not

be

Pg: 43 of 55

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
Chellis

to

provide

is

not

deprivations

and

such

involved
could

not

relief.”);
in

J.A.

any

1140

ongoing

provide

(“Defendant

constitutional

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
ADHC

or

rights

other

over

Medicaid

any

agency

regarding

services.”).

the

Plaintiffs’

Appellants

offer

no

specific challenge to the district court’s conclusions regarding
Leatherman, Eckstrom, Chellis, and Cooper.
light

of

the

fact

that

the

BCB

is

now

And, especially in
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

analysis concerning Governor Haley.

the

district

court’s

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
43

speech

services,

refused

to

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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
nor

decisions,

an

official

does

she

with

have

the

responsibility
authority

to

for

these

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

single state agency to administer the Medicaid plan).
“may

not

delegate,

to

other

than

its

own

a

And DHHS

officials,

the

authority to supervise the plan or to develop or issue policies,
rules,

and

§ 431.10(e).
see

S.C.

administer

regulations

on

program

matters.”

42

C.F.R.

Although Governor Haley appoints DHHS’s Director,

Code

§ 44-6-10,

South

she

Carolina’s

has

no

Medicaid

direct

plans;

authority

rather,

she

to
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
44

DHHS

into

compliance.”

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Appellants’ brief at 36.

Pg: 45 of 55

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.
that

Cf. Waste Mgmt. Holdings, 252 F.3d at 331 (“The fact
[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].).
direct connection is required.

Rather, a more

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

claims alleging violations of Title II of the ADA.

as

to

As for Count

Two, Appellants argue that South Carolina waived its Eleventh

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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)).

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history

Filed: 12/15/2016

and

pattern

Pg: 47 of 55

of

unconstitutional

disability

discrimination by States and nonstate government entities.”
also id. at 484-90.
Court’s

decision

See

They also drew support from the Supreme

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

not

Constantine

and

Lane

did

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
47

the

power

under

§ 5

of

the

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Fourteenth Amendment to abrogate states’ sovereign immunity for
conduct that did not actually violate the Constitution.
at 158-59.

See id.

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

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[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
light

their

of

the

framework,

supplemental
district

“their

brief,

court’s

claims

Appellants

failure

for

to

suggest

that

in

the

Georgia

relief

injunctive

apply

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

outcome

case.
of

They

this

contend

appeal

that

because

Georgia

none

of

cannot

the

affect

claims

here

the
are

justiciable – an argument we have now rejected – and because any
ADA

liability

would

be

duplicative

28

of

liability

under

the

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

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Rehabilitation

Act

to

the

Pg: 50 of 55

extent

that

Eleventh

Amendment

immunity is not available.
In
whether

light

of

the

Congress

Amendment

has

immunity

existence
validly

for

Title

of

the

abrogated
II

claims

unresolved
the
of

issue

States’
the

type

of

Eleventh
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
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(“Only

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prospective

relief,

Pg: 51 of 55

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
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violations
Appellees

Filed: 12/15/2016

alleged
argued

in

the

that

Pg: 52 of 55

amended

Appellants

complaint.”).

had

“failed

to

On

reply,

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

lawsuit

was

not

Babcock

Center.

on

September

requesting
As

23,

damages

Appellants

2014,
other

point

that
than

out,

Appellants’
against

the

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.
Cir.

2007)

(“Federal

See Doe v. Kidd, 501 F.3d 348, 354 (4th
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.”

omitted)).

(alteration

and

internal

quotation

marks

Cf. Santos v. Frederick Cty. Bd. Of Comm’rs, 725
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Pg: 53 of 55

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

Constantine, 411 F.3d at 490-96.
not

dispute

that

South

regard

to

Medicaid.

See

For their part, Appellees do

Carolina

has

waived

any

Eleventh

Amendment immunity regarding Count Two, but they argue that the
district

court

properly

ruled

that

named as defendants in Count Two.

the

BCB

Members

were

not

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

asserted against any of the BCB Members.”).
53

Act

claim

is

not

We do not read the

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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).
amended

complaint

shows

that

defendants as to Count Two.

the

In any event, review of the
BCB

Members

were

among

the

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

spending

those

estate”).

Legislative
funds

Audit

improperly

Council
for

the

that

[DDSN]

purchase

of

was
real

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
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Counts

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One

and

Filed: 12/15/2016

Two

against

Eleventh Amendment immunity.
of

the

official-

and

Pg: 55 of 55

Governor

Haley

on

the

basis

of

However, we affirm the dismissal

individual-capacity

claims

against

Leatherman, Eckstrom, Chellis, and Cooper.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

55