Exhibit 3.5.2 Doe V. Kidd Fee Petition

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Exhibit 3.5.2 Doe v. Kidd Fee Petition

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Sue Doe, Plaintiff,

v.

Linda Kidd, Stanley J. Butkus, Kathi Lacy, Michelle Ford, W. Robert Harrell, the South Carolina Dept. of Disabilities and Special Needs, Emma Forkner, the South Carolina Dept. of Health and Human Services, Phillip Massey, Fred Owens and the Newberry County Disabilities and Special Needs Board, Defendants.

C/A No.: 3:03-cv-1918-MBS

PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, COSTS, AND EXPENSES

Pursuant to 42 U.S.C. § 1988(b), Plaintiff Sue Doe moves to recover her attorneys' fees and costs through May 31, 2013, in the amount of $911,054.00 for fees in the federal courts, $997,489.00 for fees in the administrative appeals directly related to the federal litigation, and $19,742.54 in costs and other litigation expenses.

INTRODUCTION

This suit began in 2003, a decade ago, as an effort to enforce the reasonable promptness mandate of the federal Medicaid Act and secure for plaintiff the Medicaid services she was entitled to receive under the Act, particularly residential habilitation services ("Res Hab"). See Complaint ¶¶ 8, 10, 14, 17, 26, 31, 38, 39, 43 and Relief ¶ 1.

She has now prevailed in that claim by virtue of a summary judgment, ordered by the Court of Appeals and granted by this Court. The judgment holds that defendants have violated the Medicaid Act, that plaintiff is entitled to those services and that defendants have defaulted in their legal obligation by failing to provide them. The Fourth Circuit also held that plaintiff is the prevailing party entitled to attorneys' fees.

To get to this point, plaintiff has been dragged by the unrelenting defendants through ten years of scorched-earth litigation, through this Court, to the United States Court of Appeals, to a petition for rehearing en banc, to a petition for certiorari in the Supreme Court of the United States, back to this Court, back to the Court of Appeals, then still another petition for rehearing en banc, and back to this Court again. Meanwhile, plaintiff's right to pursue her federal claims was and still is being threatened by a state administrative attack by defendants claiming she is not eligible for any Medicaid services at all - a patent attempt to moot this federal case. This collateral challenge has produced an endless series of state administrative hearings and appeals, to the South Carolina Administrative Law Court, back for more agency hearings, back to the Administrative Law Court again, on to the South Carolina Supreme Court, and now back for more agency hearings.

A very simple but clear-cut measure of this grueling litigation, and the tenacious effort demanded of plaintiff's counsel, is the sheer number of docket entries that chronicle this case. Those entries exceed 200 in this Court alone, along with many more in the Fourth Circuit, the state agency, the Administrative Law Court and the South Carolina Supreme Court.

The result of all this is a decision that not only benefits the plaintiff, but also benefits countless other people by the Fourth Circuit s landmark ruling establishing a federal cause of action for this type of violation of the Medicaid Act. 42 U.S.C. § 1396a(a)(8).

As the Fourth Circuit explicitly held, plaintiff is indisputably the prevailing party entitled to attorneys' fees.

DISCUSSION

This case involves Doe's rights under the Medicaid Act, which the Fourth Circuit has now held - in this case - are enforceable under 42 U.S.C. § 1983. Accordingly, attorneys' fees are authorized under 42 U.S.C. § 1988(b): "In any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. ..."

The Supreme Court has held that fees to prevailing civil rights plaintiffs should be awarded as a mater of course, except where unusual special circumstances - not present here - dictate otherwise. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). In this case, the plaintiff's entitlement to fees has already been established by the Fourth Circuit. Doe v. Kidd, 419 Fed. Appx. 411, at page 8 (4^th Cir. 2011) (Unreported Cases-Exhibit 9). I. Computation of Fee Award

Attorney s fees awards "are an integral part of the remedy necessary to obtain compliance with the civil rights laws." Anderson v. Morris, 658 F.2d 246, 248 (4^th Cir. 1981), and, as such, should be "adequate to obtain competent counsel." Daly v. Hill, 790 F.2d 1071, 1077 (4^th Cir. 1986), quoting Blum v. Stenson, 465 U.S. 886, 897 (1984). Where the prevailing party has obtained essentially full relief, as here, the result should be a "fully compensatory fee." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).

Of particular note in this case seeking declaratory and injunctive relief, Congress specified and Hensley repeated that "it is intended that the amount of fees awarded . . . be governed by the same standards which prevail in other types of equally complex federal litigation, such as antitrust cases, and not be reduced because the rights involved may be non-pecuniary in nature." 461 U.S. at 430.

In calculating the fee, two overlapping approaches have been used. The Fourth Circuit set out a 12-factor guide in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4^th Cir. 1978), and these are now incorporated in this Court's Local Rule 54.02(A). However, two of the 12 factors - the attorney's reasonable hourly rate and the number of hours reasonably spent - are typically multiplied to produce a "lodestar" which is presumptively the appropriate fee award. In that sense, the other 10 factors are ordinarily reviewed simply to determine whether an enhancement or reduction should be applied to the lodestar amount.

For the Court's assistance, plaintiff will address both approaches below.

Plaintiffs note two points of special interest. First, several of the Barber factors would dictate an upward adjustment of the award in this case. These "enhancing" factors serve to counterbalance any arguments that defendants may make in support of any downward adjustment. Second, this petition includes a request for compensation for time spent in the cognate state proceedings which began in 2005. Compensation for that time is supported by caselaw and the specific facts of this case, and that issue is addressed separately in part C below.

A. Doe's Lodestar Value

1. Hourly Rates

Most of the work in this case was performed by Patricia Harrison, Stuart Andrews, most recently Armand Derfner, and several associates and paralegals. These three named lawyers have filed Declarations as to their rates (Exhibits 1-3), supported by Declarations or Affidavits of other members of the Bar (Exhibits 4-8). Each of these three lawyers is widely regarded as being at the very top of the profession in this State.

Mr. Andrews was admitted to the Bar in 1978. He is a partner at Nelson, Mullins, Riley and Scarborough, and an acknowledged leader in health care litigation. He seeks $450 per hour, which is at or below the actual rate he charges clients. Ms. Harrison, admitted to the Bar in 1988, is renowned nationwide as a leader in disability rights cases. She seeks $425 per hour, which is an appropriate rate for a lawyer of her seniority, skill and experience. Mr. Derfner, admitted to the Bar in the District of Columbia in 1965 and in this state in 1974, has been at the head of the profession for many years, especially in complex litigation like this. He has been awarded fees at rates of $ 400-450 per hour some years ago, and here seeks $480 per hour, an appropriate slight increase from his earlier awards.¹

The hourly rates sought for Nelson Mullins associates are in line with the rates the firm actually charges its clients for work by those associates. The paralegal work is listed at $120-150-180 per hour, according to the paralegal's experience level, which are standard rates for paralegals in this state for complex litigation.

The above rates are in line with other rates awarded by this Court or other courts in this state. For example, in this Court's recent case of South Carolinians for Responsible Government v. Krawcheck, 2012 WL 2830274 (D.S.C. July 9, 2012), this Court awarded fees at a rate of $425 per hour to Kevin Hall, Esq., who was admitted to the Bar in 1991. Ms. Harrison is senior to Mr. Hall but does not seek a higher hourly rate. Mr. Derfner and Mr. Andrews are much senior to Mr. Hall, by 25+ and 10+ years, respectively, and seek only slightly higher hourly...