R.P. v. SCDHHS

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

R.P., Appellant,

v.

South Carolina Department of Health and Human
Services, Respondent.

Appellate Case No. 2014-001284

Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge

Unpublished Opinion No. 2017-UP-039
Submitted October 1, 2016 – Filed January 11, 2017

AFFIRMED

Stuart M. Andrews, Jr. and Susan Hills Nelson, both of
Nelson Mullins Riley & Scarborough, LLP, of Columbia,
and Patricia Logan Harrison, of Columbia, for Appellant.

William H. Davidson II and Kenneth P. Woodington,
both of Davidson & Lindemann, PA, of Columbia, for
Respondent.
PER CURIAM: R.P. appeals the Administrative Law Court's (ALC's) denial of
her request for attorney's fees pursuant to section 15-77-300 of the South Carolina
Code (Supp. 2016). We affirm.

1. We disagree with R.P.'s argument she was entitled to attorney's fees because
she was the prevailing party and the Department of Health and Human Services
(Department) was not substantially justified in asserting she was not eligible for
Mental Retardation/Related Disability (MR/RD) waiver services and continuing to
litigate this position. See Layman v. State, 376 S.C. 434, 444, 658 S.E.2d 320, 325
(2008) ("The decision to award or deny attorney's fees under the state action statute
will not be disturbed on appeal absent an abuse of discretion by the trial court in
considering the applicable factors set forth by the statute."); id. ("An abuse of
discretion occurs when the conclusions of the trial court are either controlled by an
error of law or are based on unsupported factual conclusions."); S.C. Code Ann. §
15-77-300(A) (Supp. 2016) (providing for an award of attorney's fees against the
State to a prevailing party if: "(1) the court finds that the agency acted without
substantial justification in pressing its claim against the party; and (2) the court
finds that there are no special circumstances that would make the award of
attorney's fees unjust"); Heath v. Cty. of Aiken, 302 S.C. 178, 183, 394 S.E.2d 709,
712 (1990) (stating substantial justification means "justified to a degree that could
satisfy a reasonable person" (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988))); Layman, 376 S.C. at 445, 658 S.E.2d at 326 ("[I]n deciding whether a
state agency acted with substantial justification, the relevant question is whether
the agency's position in litigating the case had a reasonable basis in law and in
fact."); id. ("Although an agency's loss on the merits does not create a presumption
that its position was not substantially justified, the substance and outcome of the
matter litigated is nevertheless relevant to the determination of whether there was
substantial justification in pressing a claim." (citation omitted)); United States v.
Paisley, 957 F.2d 1161, 1167 (4th Cir. 1992) (stating merits decisions and their
rationales "are the most powerful available indicators of the strength, hence
reasonableness, of the ultimately rejected position"); id. ("As such, they obviously
must be taken into account . . . in deciding whether the Government's position,
though ultimately rejected on the merits, was substantially justified . . . ."). During
the underlying litigation, the hearing officer, the ALC, and two supreme court
justices all agreed with the Department's position Regulation 88-210(f)1 did not

1
S.C. Code Ann. Regs. 88-210(f) (2012) (defining "Developmental Period" as
"[t]he period of time between conception and the twenty-second birthday").
apply to MR/RD waiver services eligibility determinations. While their acceptance
of the Department's position is not dispositive of whether that position was
substantially justified, it is an indication of the reasonableness of the position. We
believe the ALC did not abuse its discretion in determining the Department was
substantially justified in espousing the position that Regulation 88-210(f) was not
applicable to MR/RD waiver services eligibility determinations. In addition, we
find the ALC did not abuse its discretion in ruling the Department had a reasonable
factual basis for its position R.P. was ineligible for MR/RD waiver services and
had supported its position with abundant expert testimony.

2. We find no reversible error in the ALC's denial of R.P.'s request for discovery.
The ALC noted R.P. had not filed her motion for discovery until after the court
held a conference call with the parties and announced its ruling to deny R.P.'s
request for attorney's fees. The ALC thus held, "I find that [R.P.'s] subsequent
Motion for Limited Discovery is moot and is therefore denied." R.P. does not
challenge the mootness ruling in her brief. Accordingly, it is the law of the case.
See Rumpf v. Mass. Mut. Life Ins. Co., 357 S.C. 386, 398, 593 S.E.2d 183, 189 (Ct.
App. 2004) ("Any unappealed portion of the trial court's judgement is the law of
the case, and must therefore be affirmed.").

3. We find no error in the ALC's refusal to consider R.P.'s argument the
Department initiated these proceedings in an attempt to moot her federal lawsuit.
The ALC refused to consider this issue because R.P. did not specifically raise the
issue in her petition for attorney's fees. R.P. fails to challenge this ruling. See
First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 566, 511 S.E.2d 372, 378
(Ct. App. 1998) ("Failure to challenge the ruling is an abandonment of the issue
and precludes consideration on appeal. The unchallenged ruling, right or wrong, is
the law of the case and requires affirmance.").

4. We find no merit to R.P.'s assertion the ALC erred in refusing to admit and
consider proffered evidence from the merits hearing. In its order on R.P.'s motion
for reconsideration, the ALC described R.P.'s efforts to supplement the record after
the decision was announced as "untimely and improper." On appeal, R.P. does not
challenge the ALC's refusal to consider the transcript because she did not submit it
in a timely manner. Thus, this ruling is the law of the case. See id. ("Failure to
challenge the ruling is an abandonment of the issue and precludes consideration on
appeal. The unchallenged ruling, right or wrong, is the law of the case and
requires affirmance."). Furthermore, the ALC did consider and reject R.P.'s
argument the Department lacked substantial justification in continuing its efforts to
have R.P. determined ineligible for MR/RD waiver services after the supreme
court's decision. As noted above, we find the ALC did not abuse its discretion in
this determination.

5. We find the ALC did not abuse its discretion in refusing to admit the orders
from the federal court litigation. See Whaley v. CSX Transp., Inc., 362 S.C. 456,
483, 609 S.E.2d 286, 300 (2005) ("The admission of evidence is within the trial
judge's discretion and his decision will not be reversed absent an abuse of
discretion."); State v. Gulledge, 326 S.C. 220, 229, 487 S.E.2d 590, 594 (1997)
("[T]he admissibility of evidence is limited by constitutional provisions which
require the evidence to be relevant, reliable and trustworthy."); In re Long-
Distance Tel. Serv. Fed. Excise Tax Refund Litig., 751 F.3d 629, 636 (D.C. Cir.
2014) (holding that conduct by the IRS in another action was irrelevant because it
did not occur in the action in which the fees were sought). The federal court
litigation involved different issues from the determination of eligibility for MR/RD
waiver services involved in this litigation. Accordingly, the federal court orders
were not relevant and the ALC did not err in denying admission of them into
evidence.

6. We find no merit to R.P.'s argument the ALC erred in holding substantial
justification existed because the issues in this case had not been previously
litigated. See Cornelius v. Oconee Cty., 369 S.C. 531, 539, 633 S.E.2d 492, 497
(2006) (stating the fact that a case involves a novel issue does not make the
government's position substantially justified). While the ALC acknowledged
novelty alone would not cause a "completely unreasonable position to be
substantially justified," it explained the Department's position was in fact
reasonable and "the first-impression nature of the issue . . . constitutes an
additional reason why it was reasonable for [the Department] to conclude that the
regulation was inapplicable to determinations of eligibility." We find no error in
this ruling.

AFFIRMED.

HUFF and SHORT, JJ., and MOORE, A.J., concur.