Aiden Vasquez and Mika Covington v. Iowa Department of Human Services

IN THE SUPREME COURT OF IOWA

No. 21–1977

Submitted January 18, 2023—Filed May 12, 2023

AIDEN VASQUEZ and MIKA COVINGTON,

Appellees/Cross-Appellants,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES,

Appellant/Cross-Appellee.

Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.

The Iowa Department of Human Services appeals the district court ruling

requiring its Medicaid program to pay for gender-affirming surgery for two

transgender adults who cross-appeal the denial of their claim for attorney fees.

DIRECT APPEAL DISMISSED AS MOOT; FEE RULING AFFIRMED ON

CROSS-APPEAL.

Waterman, J., delivered the opinion of the court, in which all justices

joined.

Brenna Bird, Attorney General, Samuel P. Langholz, Chief Deputy

Attorney General, and Thomas J. Ogden (argued), Assistant Attorney General,

for appellant/cross-appellee.

Rita Bettis Austen and Shefali Aurora of ACLU of Iowa Foundation, Inc.,

Des Moines, Lisa Nowlin-Sohl of ACLU Foundation, New York, New York, and
 2

Seth A. Horvath (argued), F. Thomas Hecht, and Tina B. Solis of Nixon Peabody

LLP, Chicago, Illinois, for appellees/cross-appellants.

Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and Steve

Sanders of Maurer School of Law, Indiana University, Bloomington, Indiana, for

amici curiae Iowa Law Professors.

Roxanne Barton Conlin and Devin C. Kelly of Roxanne Conlin &

Associates, P.C., Des Moines, and James W. Ducayet, Paul E. Bateman, Jr. (until

withdrawal), Emily Scholtes, and Fiona Collins of Sidley Austin LLP, Chicago,

Illinois, for amici curiae Chicago Lawyers’ Committee for Civil Rights, Iowa Safe

Schools, Professor Leonard A. Sandler, Clinical Professor and Director,

University of Iowa.

Scott M. Brennan, Elizabeth A. Etchells, and Katelynn T. McCollough of

Dentons Davis Brown PC, Des Moines, for amici curiae One Iowa, Individual

Transgender Iowans, and allies.

Joshua Matz and Raymond P. Tolentino of Kaplan Hecker & Fink LLP,

Washington, D.C., and Joseph C. Glazebrook, Des Moines, for amici curiae Bay

Area Lawyers for Individual Freedom, Forge, Inc., GLBTQ Legal Advocates &

Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for

Transgender Equality, National LGBTQ+ Bar Association, National LGBTQ Task

Force, National Women’s Law Center, Southern Arizona Gender Alliance, Trans

People of Color Coalition, Trans Youth Equality Foundation, Transgender Legal

Defense & Education Fund, and Transgender Resource Center of New Mexico.
 3

Paige Fiedler and Amy Beck of Fiedler Law Firm, P.L.C., Johnston, and

Robert R. Stauffer of Jenner & Block LLP, Chicago, Illinois, for amici curiae The

American Medical Association, The Iowa Medical Society, The American College

of Obstetricians and Gynecologists, The American College of Physicians, The

American Psychiatric Association, The Endocrine Society, GLMA: Health

Professionals Advancing LGBT Equality, Mental Health America, North American

Society for Pediatric and Adolescent Gynecology, and Society of OB/GYN

Hospitalists.
 4

WATERMAN, Justice.

Choices have consequences, and in this case, the appellant’s choices

prompt us to dismiss its direct appeal as moot. The Iowa Department of Human

Services (DHS)1 appeals from a district court ruling requiring Iowa’s Medicaid

program to pay for sex reassignment surgery2 for two transgender adults. But

after losing the fight in district court, DHS agreed to pay for their surgeries and

declined to appeal the adjudication declaring unconstitutional Medicaid rule

441—78.1(4), which excluded payment for sex reassignment surgery. DHS still

asks us to reverse the district court’s adjudication declaring unconstitutional

Iowa Code section 216.7(3) (2020), an amendment to the Iowa Civil Rights Act

(ICRA) enacted specifically to authorize exclusions for sex reassignment surgery.

We decline to decide that issue through an advisory opinion that is now merely

of academic interest to these litigants. We save the constitutional issues for

another day, presumably with a better-developed record.

The cross-appeal is not moot. The district court ruled that the successful

transgender litigants were not entitled to recover their attorney fees from DHS in

this judicial review action under Iowa Code chapter 17A. We affirm that ruling.

These individuals never sued under the ICRA, and their fee claim is barred by

Iowa Code section 625.29(1), paragraphs (b) and (d). For the reasons more fully

1DHS will officially become the Iowa Department of Health and Human Services (HHS) on
July 1, 2023. The proceedings in this case took place while the entity was still DHS. Accordingly,
we refer to it as “DHS” throughout this opinion.
2We use the terminology employed in the legislative enactment at issue. See Iowa Code
§ 216.7(3) (2020); see also Iowa Admin. Code r. 441—78.1(4)(b)(2).
 5

explained below, we dismiss the direct appeal as moot sua sponte and affirm the

denial of fees on the cross-appeal.

I. Background Facts and Proceedings.

Petitioners Aiden Vasquez and Mika Covington are adult transgender

Iowans who requested and were denied preauthorization for sex reassignment

surgeries3 through Iowa’s Medicaid program.4 Vasquez, now age 54, was born

female but has expressed “his male identity in various ways since the age of

eight.” Vasquez was diagnosed with gender dysphoria in 2016. Vasquez started

hormone therapy that year and began socially transitioning from female to male,

presenting as a man and using male pronouns and restrooms. In May 2016, he

legally changed his name and amended his driver’s license and social security

card to reflect his male identity. In September 2016, he underwent a double

3Both petitioners seek a form of “bottom surgery”—a phalloplasty and a vaginoplasty,

respectively.
A phalloplasty is a multi-stage procedure that involves removing flaps of skin from the
arm, leg, or side and rolling them into a tube. The tube is sewn onto the groin. Later, a prosthesis
is inserted within the tube. The prosthesis inflates upon the activation of a pump that hangs free
between the tube and the patient’s body. See Fan Liang, Phalloplasty for Gender Affirmation,
Johns Hopkins Med., https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies
/phalloplasty-for-gender-affirmation [https://perma.cc/ZEQ7-D4B8].
A vaginoplasty is “plastic surgery of the vagina.” Vaginoplasty, Stedman’s Medical
Dictionary (27th ed. 2000). As part of the procedure, “the penile skin is turned inside out like a
sock” and used to create a vaginal cavity. Vaginoplasty Techniques, Rumer Cosmetic Surgery,
https://rumergendersurgery.com/gender-reassignment-surgery/vaginoplasty-techniques
[https://perma.cc/7QEY-Z75N]. Additional skin is taken from the surrounding area and
rearranged, but “the surgeon may need to use a skin graft from the abdomen or thigh to construct
a full vaginal canal.” Fan Liang, Vaginoplasty for Gender Affirmation, Johns Hopkins Med.,
https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/vaginoplasty-for-
gender-affirmation [https://perma.cc/4PFP-ALDT].
4Both have previously sued to challenge the constitutionality of an amendment to the
Iowa Civil Rights Act that provides denying public funds for sex reassignment surgeries does not
violate the Iowa Civil Rights Act. The district court dismissed their lawsuit for failure to exhaust
administrative remedies, and the court of appeals affirmed because they had not yet requested
and been denied Medicaid coverage for their bottom surgeries. See Covington v. Reynolds ex rel.
State, No. 19–1197, 2020 WL 4514691, at *1, *3 (Iowa Ct. App. Aug. 5, 2020).
 6

mastectomy to “better align his body with his gender identity.” The next month

he amended his birth certificate “to reflect his male gender identity.” He reports

“a long history of self-harm and suicidality stemming from depression caused by

his gender dysphoria” and that “[h]e is severely distressed with his genitalia,

which does not align with his gender identity and exacerbates his depression.”

Covington, now age 31, was born male but “expressed her female identity

in various ways since the age of six.” In 2009, Covington began socially

transitioning from male to female, using feminine pronouns. In 2014, Covington

legally changed her name to reflect her identity as a woman. She was diagnosed

with gender dysphoria in 2015 and began hormone therapy. Covington reports

she “is severely distressed with her genitalia, which does not align with her

gender identity and exacerbates her depression and anxiety.”

Vasquez and Covington are patients of the same primary care physician,

Dr. Nicole Nisly, who recommended that each undergo bottom surgery. Their

managed care organization (MCO), Amerigroup of Iowa, denied their requests,

citing a longstanding Iowa administrative rule and a 2019 amendment to the

ICRA.

A. The Regulation. Before 1980, DHS applied an informal policy of

excluding sex reassignment surgeries from Medicaid coverage. See Pinneke v.

Preisser, 623 F.2d 546, 548, 549 (8th Cir. 1980). The agency, without conducting

any rulemaking proceedings or hearings, categorized sex reassignment surgery

with “cosmetic” procedures and those meant to treat “mental diseases.” Id. at

548 n.2, 550; Good v. Iowa Dep’t of Hum. Servs., 924 N.W.2d 853, 862 (Iowa
 7

2019). The United States Court of Appeals for the Eighth Circuit determined that

the exclusion was arbitrary and unenforceable. Pinneke, 623 F.2d at 549.

In 1994, the agency codified its policy in a new administrative rule (the

Regulation). 17 Iowa Admin. Bull. 730–34 (Nov. 9, 1994) (effective Feb. 1, 1995);

see also Smith v. Rasmussen, 249 F.3d 755, 760 (8th Cir. 2001). This formal

policy, like its informal predecessor, was challenged in federal court. Smith, 249

F.3d at 760. This time, the challenge failed because DHS followed the appropriate

rulemaking procedures and did its research. Id. at 760–61. The Regulation now

at issue excludes from Medicaid coverage “cosmetic, reconstructive, or plastic

surgery . . . [p]rocedures related to transsexualism, hermaphroditism, gender

identity disorders, or body dysmorphic disorders.” Iowa Admin. Code

r. 441—78.1(4)(b)(2). The Regulation explains that “[s]urgeries for the purpose of

sex reassignment are not considered as restoring bodily function and are

excluded from coverage.” Id. r. 441—78.1(4). The Regulation also excludes

coverage for numerous other procedures altering physically healthy tissue or

body parts for cosmetic or psychological purposes, including female breast

augmentation and nose plastic surgery for persons of either sex. Id.

r. 441—78.1(4)(b)(4), (d)(1).

In 2007, the general assembly expanded the scope of the ICRA to prohibit

discrimination in public accommodations based on gender identity. See 2007

Iowa Acts ch. 191, § 5 (codified at Iowa Code § 216.7(1)(a)–(b) (2009)). In 2019,

we held the Regulation violated the ICRA’s statutory prohibition on gender

identity discrimination in Good v. Iowa Department of Human Services, 924
 8

N.W.2d at 861–63. We did not reach the constitutional challenge to the

Regulation. Id. at 863 (applying the constitutional avoidance doctrine).

B. The ICRA Amendment. In 2019, in response to Good, the legislature

enacted an amendment to the ICRA (the ICRA amendment) that stated, “[The

ICRA] shall not require any state or local government unit or tax-supported

district to provide for sex reassignment surgery or any other cosmetic,

reconstructive, or plastic surgery procedure related to transsexualism,

hermaphroditism, gender identity disorder, or body dysmorphic disorder.” 2019

Iowa Acts ch. 85, § 93 (codified at Iowa Code § 216.7(3) (2020)).

C. This Litigation. Vasquez and Covington appealed their MCO’s denial

of coverage to DHS. An administrative law judge (ALJ) held evidentiary hearings

and proposed rulings affirming the denials. The director of DHS adopted the

rulings as DHS’s final agency action. Vasquez and Covington each filed an action

for judicial review of DHS’s decision under the Iowa Administrative Procedure

Act (IAPA). See Iowa Code § 17A.19. Their cases were consolidated in the Iowa

District Court for Polk County.

In the district court, Vasquez and Covington argued that DHS’s denial of

coverage should be vacated because the Regulation and the ICRA amendment

facially violate the guarantee of equal protection under the Iowa Constitution.5

See Iowa Const. art. I, § 6. Vasquez and Covington also sought attorney fees.

5Petitioners also argued that the ICRA amendment violated the single-subject and title

notice requirements of the Iowa Constitution, Iowa Const. art. III, § 29, and that the decision to
deny them Medicaid coverage for their bottom surgeries exhibited gender identity and sex
discrimination, demonstrated discriminatory animus towards transgender people, constituted a
 9

The district court concluded transgender people are a quasi-suspect class

warranting the application of heightened scrutiny. It concluded the Regulation

and the ICRA amendment violated the guarantee of equal protection under the

Iowa Constitution under both rational basis review and intermediate scrutiny.

The district court treated the Regulation and the ICRA amendment as

“unavoidably intertwined,” characterizing the whole as “Iowa’s prohibition

against medically necessary gender-affirming surgical procedures in the current

statute.” The district court went on to reject Vasquez and Covington’s additional

argument that the legislature was motivated by animus against transgender

people when it enacted the ICRA amendment. And the district court denied

Vasquez and Covington’s request for attorney fees. The court ruled that the

fee-shifting provision in the ICRA was inapplicable in this chapter 17A judicial

review action and also that fees were disallowed under Iowa Code

section 625.29(1)(d).

DHS appealed the district court’s ruling on the constitutionality of the

ICRA amendment but chose not to appeal the ruling on the Regulation. DHS

argues the issue of the constitutionality of the Regulation is therefore moot, while

Vasquez and Covington argue that the Regulation is so bound up with the ICRA

amendment that the constitutionality of the Regulation remains a justiciable

issue. On the merits, DHS argues that the ICRA amendment is not what the

district court said it was: a prohibition on Medicaid coverage for sex

disproportionate negative impact on private rights, and was an unreasonable, arbitrary, and
capricious decision.
 10

reassignment surgery. Instead, DHS characterizes it as a clarification that the

ICRA does not require the state or its subdivisions to provide such coverage. DHS

argues that the legislature did not have to add gender identity to the

antidiscrimination provisions of the ICRA in 2007, and just as the legislature

could remove that protection altogether, it could enact narrower protection.

Vasquez and Covington reply that even the plain text of the amendment violates

equal protection because it “exempt[s] only transgender people from the normal

nondiscrimination protections and remedies that apply to all Iowans under [the]

ICRA with respect to Medicaid coverage.”

Vasquez and Covington cross-appealed the denial of attorney fees. They

argue the ICRA allows fee-shifting in this chapter 17A judicial review action. DHS

responds that the district court correctly denied their fee claims pursuant to

Iowa Code section 625.29(1)(d) and correctly ruled that the fee-shifting

provisions in the ICRA do not apply.

We retained the case.

II. Standard of Review.

Iowa Code section 17A.19 generally governs judicial review of agency

action. Good, 924 N.W.2d at 860. Constitutional claims arising in agency

proceedings are reviewed de novo. Endress v. Iowa Dep’t of Hum. Servs., 944

N.W.2d 71, 76 (Iowa 2020). We review rulings on whether fees are available in

agency proceedings for correction of errors at law. Id.

“Mootness is, however, ‘a threshold question.’ ” Riley Drive Ent. I, Inc. v.

Reynolds, 970 N.W.2d 289, 296 (Iowa 2022) (quoting Homan v. Branstad, 864
 11

N.W.2d 321, 327 (Iowa 2015)). “An appellate court may consider matters

technically outside the district court record in determining a question of

mootness.” Id.

III. Analysis.

A. DHS’s Direct Appeal. We begin with the threshold question of

mootness. Although both sides urge us to decide the constitutionality of Iowa

Code section 216.7(3), “an appellate court has responsibility sua sponte to police

its own jurisdiction.” Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646, 649 (Iowa

2021) (quoting Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa 2014))

(addressing mootness even though “[n]o party has raised mootness as a ground

to prevent our consideration of this appeal”). Today we confront litigation

brought by two, and only two, transgender adults seeking Medicaid

reimbursement for their bottom surgeries. DHS has now agreed to pay for those

surgeries. That concession renders DHS’s direct appeal moot.

“Courts exist to decide cases, not academic questions of law. For this

reason, a court will generally decline to hear a case when, because of changed

circumstances, the court’s decision will no longer matter.” Riley Drive Ent. I, Inc.,

970 N.W.2d at 296 (quoting Homan, 864 N.W.2d at 328). The parties to this

appeal essentially ask for an advisory opinion on what is now an academic

question of constitutional law. That is not our role. DHS has committed to paying

for bottom surgeries for Vasquez and Covington regardless of how we decide the

constitutional issue. There is no longer a live controversy between these litigants

over Medicaid reimbursement for their surgeries.
 12

As in Riley Drive Entertainment I, Inc. v. Reynolds, 970 N.W.2d at 298–300,

and Homan v. Branstad, 864 N.W.2d at 330–32, we decline to apply a mootness

exception. The issues concerning Medicaid coverage for adult sex reassignment

surgery are of public importance and likely to recur, but not in a manner that

will evade appellate review. For several reasons, this case is a poor vehicle for a

precedential decision on the constitutionality of Iowa Code section 216.7(3).

First, as the parties and district court recognize, the questions of the

constitutionality of that statute and the Regulation are “unavoidably

intertwined.” Yet DHS declined to appeal the district court ruling that Medicaid

rule 441—78.1(4) is unconstitutional. Our inability to decide the validity of this

rule handicaps our review of the statute enacted to authorize it. The rule as

applied in this case provides context; without it, we are deciding the

constitutionality of the statute in a vacuum. DHS indicates it will enact a new

and different rule.6 Why not wait for a proper challenge by new litigants to

provide a ripe, concrete dispute?

Second, the record made in this case is inadequate in several respects.

DHS attempts to justify restrictions on sex reassignment surgery as cost savings

measures to protect the public fisc. Yet the record lacks any estimate of the cost

of the bottom surgeries sought by these litigants or those who may follow. The

record lacks any evidence of the growing number of Medicaid-eligible

6Itmay be a long wait, in light of the current, multi-year moratorium of rulemaking during
the reorganization of the Executive Branch. State of Iowa Exec. Dep’t, Executive Order Number
10, at 2 (Jan. 10, 2023), https://governor.iowa.gov/media/173/download?inline
[https://perma.cc/E6SM-N4ZA].
 13

transgender individuals expected to seek sex reassignment surgeries in the

future, including individuals who would move to Iowa to obtain such surgeries

and follow-up care. The record lacks any adversary-tested evidence concerning

the efficacy of sex reassignment surgeries in improving the mental health of the

recipients. No record was made of peer-reviewed scientific studies evaluating the

medical necessity or efficacy of sex reassignment surgeries. See Gibson v. Collier,

920 F.3d 212, 221 (5th Cir. 2019) (“As the First Circuit concluded in Kosilek [v.

Spencer, 774 F.3d 63, 72, 73, 86–88 (1st Cir. 2014) (en banc)], there is no

consensus in the medical community about the necessity and efficacy of sex

reassignment surgery as a treatment for gender dysphoria. At oral argument, . . .

counsel did not dispute that the medical controversy identified in Kosilek

continues to this day.”). Indeed, the district court likened the agency proceedings

to “a prolonged default judgment” and noted, “There was no adversarial process

in building this record to search for the truth.” Accordingly, a decision from our

court today “would probably only provide a point of reference” for future cases

to be decided under different records. Riley Drive Ent. I, Inc., 970 N.W.2d at 300.

Third, the law nationally is in flux, with conflicting rulings on transgender

constitutional rights. The United States Supreme Court has not yet decided

whether transgender litigants are a quasi-suspect class triggering heightened

scrutiny of legislative enactments affecting them. Neither have we. The Supreme

Court could decide soon. See, e.g., West Virginia v. B.P.J. ex rel. Jackson,

143 S. Ct. 889 (2023) (Alito, J., dissenting from denial of application to vacate

injunction). Some courts have applied intermediate scrutiny for transgender
 14

rights claims. E.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 609 (4th

Cir. 2020). But en banc rehearings are pending in federal courts of appeals. E.g.,

Fain v. Crouch, No. 22–1927, 2023 WL 2908815, at *1 (4th Cir. Apr. 12, 2023)

(order granting rehearing en banc after oral argument held but before panel

opinion issued); Kadel v. Folwell, No. 22–1721, 2023 WL 2908816, at *1 (4th Cir.

Apr. 12, 2023) (same); Soule v. Conn. Ass’n of Schs., Inc., 57 F.4th 43 (2d Cir.

2022), reh’g en banc granted, No. 21–1365, at 2 (Feb. 13, 2023) (order granting

rehearing en banc).

Some courts have applied rational basis review. E.g., Brown v. Zavaras, 63

F.3d 967, 971 (10th Cir. 1995); Holloway v. Arthur Andersen & Co., 566 F.2d

659, 663 (9th Cir. 1977), overruled on other grounds as recognized in Schwenk v.

Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000); Fields v. Smith, 712 F. Supp. 2d

830, 867 (E.D. Wis. 2010). Other courts have questioned whether transgender

persons satisfy traditional tests for status as a quasi-suspect class triggering

heightened scrutiny. E.g., Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57

F.4th 791, 803 n.5 (11th Cir. 2022) (en banc) (“[W]e have grave ‘doubt’ that

transgender persons constitute a quasi-suspect class.”). “Indeed, the Supreme

Court has rarely deemed a group a quasi-suspect class.” Id. (citing City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–46 (1985) (reversing a lower

court decision creating a new quasi-suspect class)).
 15

For these reasons, we decline to apply a mootness exception. We dismiss

DHS’s direct appeal as moot.7

B. The Cross-Appeal. As noted, the cross-appeal is not moot. Vasquez and

Covington argue the district court erred in denying their request for attorney

fees. We disagree and affirm.

The district court rejected their claim to recover attorney fees under the

ICRA. The district court correctly ruled that this judicial review proceeding is

governed by Iowa Code chapter 17A, not the ICRA. The fee-shifting provisions

under the ICRA are available only in actions brought under the ICRA. See Iowa

Code § 216.16(6) (“The district court may grant any relief in an action under this

section which is authorized by section 216.15, subsection 9, to be issued by the

commission.” (emphasis added)). While the commission may grant relief in the

form of attorney fees, id. § 216.15(9), the key words are “in an action under this

section,” meaning the ICRA, id. § 216.16(6). Vasquez and Covington never filed

an ICRA action against DHS. To the contrary, as the district court observed, this

case is a judicial review action under the IAPA. See id. § 17A.19(10). We have

never extended the ICRA’s fee-shifting provision to actions under the IAPA. We

decline to do so now. The remedies available under the ICRA are conditioned

upon compliance with its statutory requirements, including filing first with the

Iowa Civil Rights Commission and exhausting remedies there, which Vasquez

and Covington failed to do. See id. § 216.16(6); see also Shumate v. Drake Univ.,

7Issuepreclusion would not prevent the state from relitigating the constitutionality of
Iowa Code section 216.7(3) in a future case. See Planned Parenthood of the Heartland, Inc. v.
Reynolds, 975 N.W.2d 710, 732 (Iowa 2022).
 16

846 N.W.2d 503, 513–15 (Iowa 2014) (declining to allow parties to circumvent

the procedural requirements of the ICRA). The ICRA does not support any fee

award here.

As the district court recognized, the governing statute for fee awards in

chapter 17A cases is Iowa Code section 625.29(1). The problem for Vasquez and

Covington is that their case falls squarely within two separate subsections that

preclude a fee award here. First, the statute disallows fee awards when the

“state’s role in the case was primarily adjudicative.” Id. § 625.29(1)(b). DHS

adjudicated their disputed claims to preauthorize their bottom surgeries through

the contested hearing before the ALJ and on intra-agency appeal. Our precedent

makes clear that an agency acts in a primarily adjudicative role even when it

merely determines it lacks subject matter jurisdiction to decide constitutional

challenges. Endress, 944 N.W.2d at 83 (“If DHS determines it lacks jurisdiction

to hear a dispute it could otherwise adjudicate, a prevailing party cannot ask for

section 625.29(1) attorney fees against DHS as the adjudicator.”); Colwell v. Iowa

Dep’t of Hum. Servs., 923 N.W.2d 225, 238 (Iowa 2019) (“Had DHS heard the

dispute and Colwell prevailed, he could not ask for fees against DHS as the

adjudicator. Therefore, he should not be entitled to fees when DHS determined

it had no jurisdiction to hear the appeal.”).

Second, the district court correctly concluded that another subsection

disallows their fees because this “action arose from a proceeding in which the

role of the state was to determine the eligibility or entitlement of an individual to

a monetary benefit or its equivalent.” Iowa Code § 625.29(1)(d). This provision
 17

fits like a glove here: the role of the DHS was to determine their eligibility for

Medicaid payments for their bottom surgeries.

For these reasons, we affirm the district court’s ruling denying any fee

award.

IV. Disposition.

We dismiss DHS’s direct appeal as moot. On the cross-appeal, we affirm

the district court’s order denying attorney fees.

DIRECT APPEAL DISMISSED AS MOOT; FEE RULING AFFIRMED ON

CROSS-APPEAL.