Sue Doe v. Linda Kidd

UNPUBLISHED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.
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
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Vacated and remanded by unpublished opinion.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

3
ATTORNEY AT LAW, Columbia, South Carolina, for Appellant/Cross-
Appellee. 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Unpublished opinions are not binding precedent in this circuit.

4
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. She filed

this 42 U.S.C. § 1983 action against the 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 case has been before this Court on two previous

occasions. In Doe v. Kidd, 501 F.3d 348 (4th 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

5
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.” Id.

Despite two successful appeals, the district court

significantly reduced Doe’s request for 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 case is laid out in further

detail in Doe I and Doe II. 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. Wilder v. Va.

Hosp. Ass’n, 496 U.S. 498, 502 (1990). Once a state elects to

participate in the program, it must comply with all federal

6
Medicaid laws and regulations. Id. DHHS is the state agency

responsible for administering and supervising Medicaid programs

in South Carolina. DDSN has specific authority over the state’s

treatment and training programs for people with intellectual

disability.

This case involved the Medicaid waiver program created by

42 U.S.C. § 1396n(c), which permits states to waive the

requirement that persons with intellectual disability 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. Doe I, 501

F.3d at 351. These settings may include, listed in order of the

least to the most restrictive placement (1) a Supervised Living

7
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 on the appeal, a DHHS hearing

officer dismissed the matter. 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

8
time. However, because DDSN was then promising to provide Doe

with 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 pursuant to 42 C.F.R. § 441.301(b) (“2003

plan”). The 2003 plan included a regime of personal care,

psychological evaluations, and other services to be provided in-

home at the residence of Doe’s mother. It also recommended that

Doe “receive residential 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. In June 2003, after failing to

receive any residential 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 Doe at a residential center (the

“authorization letter”). According to the authorization letter,

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

9
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 and Doe discussed some alternative 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 I setting

“represent[ed] the best long-term option” for Doe. 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 services. The defendants contended that it

provided Doe with CTH II placement because of Doe’s family

circumstances, not because she was qualified for the 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. Based on this reevaluation, DDSN maintained

that Doe was not intellectually disabled and, therefore, is

ineligible for the waiver program. According to Doe, 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

10
disabled and the similar longstanding diagnosis of Doe’s

physicians. Doe administratively appealed this 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 services at an

acceptable CTH I placement of [Doe’s] choice.” 419 F. App’x at

11
421. This Court further held that, “given the 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.

(emphasis added). 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. Id. Because this

Court reversed the district court, and directed it to grant

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

question that Doe is the ‘prevailing party’ for purposes of

§ 1988. She is therefore entitled to reasonable attorney’s fees

as determined by the district court.” 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, a full two and a half years after Doe II was

decided. J.A. 2300.

During this same time period, Doe’s counsel presented

several possible placements to the defendants that the

defendants rejected on the basis that Doe was either seeking a

12
CTH II placement or additional accommodations inconsistent with

a “true” SLP II placement, such as twenty-four hours

supervision. 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). Thus, the court remanded to the hearing officer to

determine eligibility under the correct legal standard.

Thereafter, the hearing officer in late 2013 issued an order

finding that Doe was “mentally retarded after the age of

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

2285. The order further held that the agencies were to

determine the appropriate level of care. Id. Neither party

appealed. As a result of the state administrative decisions in

2014, DDSN authorized residential habilitation services in such

13
facilities as a CTH II. Consequently, this case became moot, as

Doe was provided proper accommodations in a CTH II facility.

B.

On August 28, 2013, Doe’s counsel filed a motion for

attorneys’ fees. After filing an amended fee petition, Doe

sought $1,868,958 in attorneys’ fees, of which $997,489

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

represented time expended in the federal litigation. Doe also

sought $19,742,54 in costs and $59,018.75 in fees for the

guardian ad litem. 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

14
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 legal services failed to provide many victims of civil

rights violations with effective access to the judicial

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

(citations omitted). “Congress attributed this market failure

in part to the fact that ‘[t]hese victims ordinarily cannot

afford to purchase legal services at the rates set by the

private market.’” 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.’” Perdue v. Kenny, 559 U.S. 542, 550 (2010).

Unfortunately, Congress did not explain what it meant by

“‘reasonable’ fee, and therefore the task of identifying an

appropriate methodology for determining a ‘reasonable’ fee was

15
left for the courts.” 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 relief to improve the financial lot of

attorneys.’” 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.” Robinson, 560 F.3d at

243. 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. Next, the court

1We 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)
16
must “subtract fees for hours spent on unsuccessful claims

unrelated to successful ones.” Id. at 244. 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.” 419 F.

App’x at 420. 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).

17
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 v. Hobby, 506 U.S. 103, 114 (1992) (“Once civil

rights litigation materially alters the legal relationship

between the parties, the degree of the plaintiff’s overall

success goes to the reasonableness of a fee award . . . .”

(internal quotation marks omitted)). 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.” Id. at 115.

In Mercer, we set forth three factors for courts to

consider in distinguishing cases in which the only reasonable

attorney fee award is no attorney fees. The Mercer factors

include: (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 respite services instead of

18
providing her, with reasonable promptness, the residential

habilitation services approved in her 2003 plan of care. This

Court agreed, holding that “[t]he law places the 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

19
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). This case, unquestionably, opened

the courthouse doors that 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.

20
 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. In Doe’s motion, she sought

attorneys’ fees as follows: 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

21
market in South Carolina, $280 is an adequate hourly rate” for

Harrison. J.A. 2299. The court then, without providing any

explanations, reduced Law’s hourly rate to $85 and, despite

acknowledging “Derfner’s national reputation,” J.A. 2299,

reduced his hourly rate to $450. 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 court abused its discretion in its

determination of Harrison’s hourly rate. The defendants’

contention that the district court failed to 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. See, e.g., Plyler v. Evatt, 902

F.2d 273, 277 (4th Cir. 1990). We agree.

22
 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 work in the relevant community.”

Robinson, 560 F.3d at 245. Both parties submitted affidavits

about the appropriate rate 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. J.A. 2296.

Despite its finding that this 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 property law case, and a copyright

infringement case. 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

23
before them were straightforward, requiring no expertise or

special skills. 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 work performed in this case relating to the

defendant’s default does not require special skill in the

intellectual property law area in the opinion of the Court.”

(emphasis added)).

24
 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)
25
 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 hours for

excessiveness under the first Johnson factor. 3 The defendants

assert that there should have been a greater reduction. Doe

argues that there should have been no reduction for

excessiveness. 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 “that are excessive, redundant, or otherwise

unnecessary.” Hensley, 461 U.S. at 434. 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.

26
court determined that Harrison’s 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 issue an order instructing lead counsel as to

inappropriate questions that could not be propounded during

depositions.” J.A. 2294. 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.

4Doe 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)
27
 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: 700

hours were cut from the court’s calculation of 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.

28
J.A. 2185. 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, because the district court already made a

twenty-five percent reduction for excessiveness and clerical

tasks, 5 and because the district court’s reliance 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 twenty-
five 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).

29
 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 on the degree of success

enjoyed by the plaintiff.”). 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. Indeed, the Supreme Court has recognized that the

extent of a plaintiff’s success is “the most critical factor” in

determining a reasonable attorneys’ fee under § 1988. Id. at

436. What the court must ask is whether “the 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. The court then

reduced that number to $100,000, or sixty-three percent,

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

2300. The district court reasoned that “DDSN was required to

30
tender alternate placement in a CTH I or SLP II facility in 2003

when the initial offer was rejected.” Id. And, because “lead

counsel’s objective in this litigation 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 this

district court, had routinely closed on plaintiffs. Plaintiffs

now can enforce their rights under the Medicaid Act through

§ 1983 – a direct result of Doe’s efforts in 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. It was not until

August 2013, two and a half years after Doe II, that the

defendants came into compliance with the Medicaid Act.

Moreover, the fact that the state administrative body found in

31
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’ fee award and direct that it be entered as

follows: 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

32
hours for a total of $71,424. 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 of yet a fourth

appeal”).

C.

In addition to attorneys’ fees, Doe sought to assess

guardian ad litem fees against the defendants in the amount of

$39,173.75 for the federal litigation, which included 223.85

hours at a rate of $175 per hour. 6 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).

33
Civil Procedure 59(e), which 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). A Rule 59(e) motion

may only be granted in three situations: “(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.” Id.

Courts have interpreted Federal 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. Hull v. United

States, 971 F.2d 1499, 1510 (10th Cir. 1992). It is well

recognized that the guardian ad litem serves essentially as an

officer of the court and looks after the interests of the

plaintiff. 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
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 duty to zealously protect the incompetent’s

interests. See Kollsman, 996 F.2d at 706. As such, the

guardian ad litem’s “costs and expenses are appropriately

chargeable under Rule 54.” 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). To

the extent that the guardian ad litem was performing 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 hours in the federal litigation. There was active

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

35
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. Ray would review Doe’s responses to

interrogatories. 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. See Kollsman,

996 F.2d at 706. 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 erred in its

determination of the guardian ad litem’s rate. The district

court, citing no authority or declarations, determined a rate of

$75 per hour to be adequate. Doe provided two declarations

supporting the rate 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, depending on the

36
complexity of the case. Further, while there are not many cases

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

recently determined that hourly rates of $200 and $350 are

reasonable for a complex case, albeit in different 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 reasonable); Metro. Life Ins. Co. v. Brown, 300-cv-

1017L, 2002 WL 32140310, at *4 (N.D. Tex. Dec. 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. We disagree, and find that

37
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. That same year, Doe

filed this suit after failing to receive any residential

habilitation services. Doe sought an 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 than comply with the Medicaid

timeliness provisions, the defendants reevaluated Doe,

determining (wrongly) that she no longer met the state-law

definition of intellectual disability; Doe thus was ineligible

for the waiver program. At that point, Doe had two options:

first, she could waive 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.

38
 And, because Doe 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. For this reason, we find

that 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, 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