                       IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1613
                              Filed October 23, 2019


EERIEANNA GOOD and CAROL BEAL,
     Petitioners-Appellants,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.


       The petitioners, who successfully challenged a department rule as

violating provisions of law, appeal the district court’s denial of their request for

attorney fees and costs. AFFIRMED.


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

LLP, Chicago, Illinois, Rita Bettis Austen of ACLU of Iowa Foundation Inc., Des

Moines, and John Knight of ACLU Foundation LGBT & HIV Project, Chicago,

Illinois, for appellants.

       Thomas J. Miller, Attorney General, and Matthew K. Gillespie, Assistant

Attorney General, for appellee.



       Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ. Gamble,

S.J., takes no part.
                                            2


POTTERFIELD, Judge.

       EerieAnna Good and Carol Beal successfully challenged a regulation

adopted by the Iowa Department of Human Services (DHS) that prohibited Iowa

Medicaid coverage of surgical procedures related to “sex reassignment” and

“gender identity disorders.” See Iowa Admin. Code r. 441-78.1(4). In a recent

ruling, our supreme court determined the rule’s exclusion of coverage for gender-

affirming procedures violates the Iowa Civil Rights Act (ICRA), which includes

“gender identity” as a protected characteristic.         See Good v. Iowa Dep’t of

Human Servs., 924 N.W.2d 853, 862–63 (Iowa 2019).

       In this case, Good and Beal appeal the district court ruling denying their

application for attorney fees and costs incurred in their challenge of the

regulation.1 They brought their request for fees under the ICRA, see Iowa Code

§ 216.16(6) (2018), and the Iowa Equal Access to Justice Act, see id. § 625.29.

The district court determined neither statute permitted an award of fees and

denied the request.       Good and Beal maintain the district court erred in its

interpretation of the statutes; they ask us to reverse the denial of their request

and remand to the district court for the determination of the amount of reasonable

attorney fees.




1
  This issue was not included in the case already decided by our supreme court because
DHS appealed the district court’s ruling on the merits before the district court denied the
petitioners’ request for fees and costs. Our supreme court retained DHS’s appeal and
ordered the matter to be expedited. Then, after the district court denied their request for
fees and costs, Good and Beal appealed. Our supreme court declined to consolidate
the two cases; this matter was transferred to us.
                                              3


I. Background Facts and Proceedings.

       In early 2017, Good sought Medicaid preapproval of expenses for an

orchiectomy. The managed care organization (MCO) denied the request based

on Iowa Administrative Code rule 441-78.1(4).2                Good initiated an internal

appeal, which the MCO denied. Good then appealed the MCO’s decision to

DHS, arguing the denial of her request violated the ICRA’s prohibition against




2
  The rule provided:
                For the purposes of this program, cosmetic, reconstructive, or
        plastic surgery is surgery which can be expected primarily to improve
        physical appearance or which is performed primarily for psychological
        purposes or which restores form but which does not correct or materially
        improve the bodily functions. When a surgical procedure primarily
        restores bodily function, whether or not there is also a concomitant
        improvement in physical appearance, the surgical procedure does not fall
        within the provisions set forth in this subrule. Surgeries for the purpose of
        sex reassignment are not considered as restoring bodily function and are
        excluded from coverage.
                ....
                b. Cosmetic, reconstructive, or plastic surgery performed in
        connection with certain conditions is specifically excluded.            These
        conditions are:
                ....
                (2) Procedures related to transsexualism, hermaphroditism,
        gender identity disorders, or body dysmorphic disorders.
                (3) Cosmetic, reconstructive, or plastic surgery procedures
        performed primarily for psychological reasons or as a result of the aging
        process.
                (4) Breast augmentation mammoplasty, surgical insertion of
        prosthetic testicles, penile implant procedures, and surgeries for the
        purpose of sex reassignment.
                ....
                d. Following is a partial list of cosmetic, reconstructive, or plastic
        surgery procedures which are not covered under the program. This list is
        for example purposes only and is not considered all inclusive.
                ....
                (2) Cosmetic, reconstructive, or plastic surgical procedures which
        are justified primarily on the basis of a psychological or psychiatric need.
                ....
                (15) Sex reassignment.
Iowa Admin. Code 441-78.1(4) (emphasis added).
                                           4


gender-identity and sex discrimination and violated the Iowa Constitution.3

Following a hearing, an administrative law judge (ALJ) issued a proposed

decision affirming the MCO’s denial. The ruling enumerated the evidence and

arguments presented before noting, “Whatever the merits of [Good’s] claims, an

administrative proceeding such as this can only preserve and not decide claims

whose resolution is entrusted only to those wielding judicial authority.           This

includes deciding whether the MCO acted appropriately in denying [Good’s] prior

authorization request.”     (Footnote omitted.)      Good appealed the proposed

decision to the Director of DHS, who affirmed the ALJ’s proposed decision and

adopted it as the agency’s final decision. Good filed a petition for judicial review

in the district court.

       In separate proceedings, Beal requested Medicaid preapproval of

expenses for vaginoplasty, penectomy, bilateral orchiectomy, clitoroplasty,

urethroplasty, labiaplasty, and perineoplasty to treat her gender dysphoria. The

MCO denied her request, stating that gender reassignment surgery is not a

covered benefit under Medicaid.        Beal sought internal review, and the MCO

denied her appeal, relying on rule 441-78.1. Beal challenged the MCO’s decision

to DHS. After a hearing, an ALJ issued a proposed decision affirming the MCO’s

decision. Like in Good’s case, the ALJ noted the agency lacked authority to

decide the merits of Beal’s claims that the administrative rule in question violated

the Iowa Constitution. However, the proposed decision considered Beal’s claim

that the rule violated the ICRA. The ALJ considered “whether sex reassignment


3
 Iowa Code section 216.7(1)(a) makes it “an unfair or discriminatory practice” to refuse
or deny to any person a public accommodation because of their gender identity or sex.
                                            5


surgery prohibited by an Iowa Administrative Code Medicaid rule properly falls

within the parameters of a public accommodation,” before concluding the MCO’s

decision had to be affirmed due to current case law. Beal appealed the proposed

decision to the Director of DHS, who adopted the proposed decision as the final

agency action.4 Beal filed a petition for judicial review.

       Based upon the joint request of all parties, the district court consolidated

the two cases.

       In a June 2018 ruling, the district court determined the challenged

regulation violated the ICRA’s prohibition against discrimination based on gender

identity. As previously noted, this ruling was ultimately affirmed by our supreme

court.5 See Good, 924 N.W.2d at 856.

       Shortly thereafter, Good and Beal filed an application for attorney fees and

costs in the amount of $467,285.67. They based their request on two separate

statutory theories of recovery.      DHS resisted, arguing section 216.16 did not

apply because the petitioners did not bring their case under ICRA procedures

and section 625.29 did not apply because two exceptions to the fee-shifting

provision prevented the petitioners from recovering fees and costs. Additionally,

DHS maintained the fees requested were unreasonable.

4
   The Director made a few modifications in the findings of fact before adopting the
decision; those findings are not at issue here.
5
  The district court also considered Good and Beal’s claim that the regulation violated the
Equal Protection clause of the Iowa Constitution. The court applied a heightened level
of scrutiny to the regulation before concluding it could not withstand either intermediate
or rational basis review. In its review of the district court’s ruling, our supreme court
affirmed on the basis that the regulation violates the ICRA’s prohibition against gender-
identity discrimination but, based on the doctrine of constitutional avoidance, did not
consider the petitioners’ constitutional claim. See Good, 924 N.W.2d 853, 863 (Iowa
2019); see also Constitutional-Avoidance Rule, Black’s Law Dictionary (11th ed. 2019)
(“The doctrine that a case should not be resolved by deciding a constitutional question if
it can be resolved in some other fashion.”).
                                          6


         The district court agreed with DHS that the statutes relied upon did not

allow the petitioners to recover fees and costs. Good and Beal appeal.

II. Standard of Review.

         We review the district court’s interpretation of statutes for correction of

errors at law. Colwell v. Iowa Dep’t of Human Servs., 923 N.W.2d 225, 232

(Iowa 2019).

III. Discussion.

         Good and Beal brought their request for attorney fees and costs under two

separate statutes—the ICRA and the Iowa Equal Access to Justice Act. They

need only to prove one of the two statutes is applicable to recover their fees and

costs.

         A. Iowa Civil Rights Act.

         We first consider Good and Beal’s claims for attorney fees and costs

under section 216.16(6). It provides, in relevant part, “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.” Iowa Code § 216.16(6).

Section 216.15(9)(a)(8) allows for the award of “court costs and reasonable

attorney fees” to a successful complainant.

         Good and Beal acknowledge that they did not bring their challenge to the

regulation pursuant to the ICRA procedures outlined in section 216.16, but they

maintain neither case law nor the statute itself prevents recovery of fees for a

claim based on the ICRA that was not brought under ICRA procedures. DHS

responds that both case law and the statute itself—stating it applies “in an action

under this section”—prevent their recovery.
                                         7

       In its ruling, the district court relied upon Hollinrake v. Monroe County, 433

N.W.2d 696, 699 (Iowa 1988) for the conclusion “the General Assembly intended

the fee-shifting under [section] 216.16 to be restricted to cases brought through

ICRA procedures.” Hollinrake concludes that actions challenging the substance

of an agency rule—as Good and Beal did—can only be brought under section

17A.19 and not the procedures of the ICRA. 433 N.W.2d at 699. But it is silent

as to whether parties who properly bring ICRA claims under section 17A

procedures can recover fees under the ICRA framework.               And nothing in

Hollinrake forecloses fee-shifting in cases such as Good and Beal’s.

       We have not found, and the parties have not provided, any authority

determinative of this issue. So we must interpret the statute. In doing so, “our

ultimate goal is to ascertain and give effect to the intent of the legislature.” Iowa

Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil

Corp., 606 N.W.2d 359, 363 (Iowa 2000). “In determining legislative intent, we

not only look to the language of the statute, but the objects sought to be

accomplished, the purpose served, the underlying policies, the remedies, and the

consequences of the various interpretations.”        Id. at 364.    “Yet, when the

language is plain and unambiguous, we do not look beyond the statute for its

meaning and do not engage in further construction.” Id. at 363. “[W]e give the

words their plain and ordinary meaning when not specifically determined by the

legislature or when there is no particular legal definition of the term.” Id. We only

consider legislative history “in interpreting statutory language found to be

ambiguous.” Id. at 365.
                                         8


       Good and Beal urge us to consider the “crucial importance” of awarding

attorney fees and costs to prevailing plaintiffs involved in ICRA litigation. See,

e.g., Ayala v. Ctr. Line, Inc., 415 N.W.2d 603, 605 (Iowa 1987) (“The reason for

awarding attorney fees in such a case is to ensure that private citizens can afford

to pursue the legal actions necessary to advance the public interest vindicated by

the policies of civil rights acts.”). But the plain language of section 216.16(6)

prevents Good and Beal from recovering fees for their suit under this statute. It

states, “The district court may grant any relief in an action under this section

which is authorized . . . to be issued by the commission.” Iowa Code § 216.16(6)

(emphasis added).      While their challenge to the agency rule was brought

pursuant to chapter 216, it is undisputed it was not brought pursuant to section

216.16, which, other than the provision for fee-shifting, outlines the proper

procedure for bringing an ICRA claim.

       Because the language of the fee-shifting provision specifically limits it to

proceedings conducted through the ICRA procedures contained in section

216.16, we agree with the district court that Good and Beal cannot recover fees

and costs under this statute.

       B. Iowa Equal Access to Justice Act.

       Good and Beal also made their request for attorney fees and costs

pursuant to section 625.29(1), which provides in relevant part, “[T]he court in . . .

an action for judicial review brought against the state pursuant to chapter 17A

other than for a rulemaking decision, shall award fees and other expenses to the

prevailing party unless the prevailing party is the state.” It is undisputed that

Good and Beal meet this initial requirement. But there are several enumerated
                                         9


exceptions when the general rule of awarding fees to the prevailing party “shall

not” be applied. See generally Iowa Code § 625.29(1)(a)-(h).

       DHS successfully argued to the district court that two of the exceptions

applied. The district court concluded, “The state’s role in the case was primarily

adjudicative,” and, “The 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.” Id. § 625.29(1)(b), (d). Good and Beal’s request for

fees and costs is defeated if either exception is properly applied.         See Id.

§ 625.29(1) (stating the court “shall not make an award under this section if it

finds one of the following”).

       We first consider section 625.29(1)(d), which precludes the court from

awarding fees when “[t]he 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 or to adjudicate a dispute or issue between private

parties or to establish or fix a rate.” The parties agree that the relevant language

here is whether the action involved: 1. an eligibility or entitlement; 2. to a

monetary benefit or its equivalent. Both Good and Beal and DHS agree that this

is a two-part question and both parts must be met for the exception to apply.

       To begin, we note the parties disagree on the goal sought by Good and

Beal as we interpret paragraph (d). Good and Beal maintain the questions are

whether the role of DHS was to determine their “eligibility or entitlement” to the

Medicaid program and whether Medicaid provides a “monetary benefit or its

equivalent.” In contrast, DHS maintains the appropriate questions are whether

the role of DHS was to determine Good and Beal’s “eligibility or entitlement” to
                                         10


medical payment for specific procedures and whether the medical assistance

payments for those procedures qualify as “monetary benefits or its equivalent.”

       We believe the questions as posed by Good and Beal are too broad. As

Good and Beal recognize, whether a person is eligible for Medicaid involves

meeting certain criteria, such as proof of residency and showing an annual

income below a certain threshold. See Iowa Admin. Code r. 447-75.1 (“Persons

covered”), .25 (defining “member” as “a person who has been determined eligible

for medical assistance under rule 441-75.1”), .71 (providing income limits). DHS

was not asked in these proceedings to determine whether Good and Beal meet

the eligibility requirements to be members of Medicaid; their membership was

undisputed. Rather, the question was whether their membership in Medicaid

allowed them to receive medical assistance payments for the specific procedures

for which they requested authorization. See Iowa Code § 249A.2(7) (“‘Medical

assistance’ or ‘Medicaid’ means payment of all or part of the costs of the care

and services made in accordance with Tit. XIX or the federal Social Security Act

and authorized pursuant to this chapter.”).

       Neither the statute itself nor any case law we have found defines the term

“eligibility or entitlement” or “monetary benefit or its equivalent.” But in Colwell,

our supreme court determined the exception was met when the party appealing

to DHS asked it to determine whether he was entitled to reimbursement

payments under a statute.      923 N.W.2d at 238. The action Good and Beal

requested DHS to undertake, to determine whether they were entitled to medical

assistance payments for specific procedures, is similar enough that we do not

believe we need specific definitions of the terms in dispute to decide that
                                            11


exception (d) applies. We reach this conclusion in spite of the fact that the

dentist in Colwell was requesting reimbursements while Good and Beal

requested preauthorization for funds, as this distinction is inapposite to the

determination.

       Because the application of exception (d) prevents Good and Beal’s

recovery of fees pursuant to section 625.29(1), we need not determine whether

paragraph (b) also applies.6

IV. Conclusion.

       The district court did not err in its determination that neither section

216.16(6) nor section 625.29(1) applies.          Good and Beal are not entitled to

recover their attorney fees and costs. We affirm.

       AFFIRMED.

6
  We note that Good and Beal assert this exclusion is not applicable because DHS’s role
in these matters involved the preservation of the issues, and not adjudication. In support
of this assertion, they claim the underlying facts were never in dispute; they never
contested that the statute, as written, applied to prevent Medicaid’s approval of the funds
for the procedures at issue; and they were aware that DHS lacked the authority to
decide the constitutional portion of their claims and only raised the issue to DHS to
preserve it for judicial review. See Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521
N.W.2d 685, 688 (Iowa 1994) (providing that constitutional issues must be raised at the
agency level to be preserved for judicial review even though agencies lack the authority
to decide constitutional questions). The State responds by relying on Colwell, a recent
supreme court case in which the court determined the state’s role had been primarily
adjudicatory when it determined it did not have jurisdiction to hear the case. 923 N.W.2d
at 238. The State argues that although DHS did not have the authority to decide the
constitutional claims made by Good and Beal, its role was still primarily adjudicatory
because it was asked to determine if the MCO “followed the appropriate rules, laws, or
guidelines when it denied” the petitioner’s claims.” Id.
        In a recent case with similar procedural history, our court noted the concern that
all contested cases fall under the category of primarily adjudicative before determining,
based on the fact that DHS lacked the authority to decide the constitutional questions
raised to it and “did not adjudicate the matter on appeal,” that the state’s role was not
primarily adjudicative. Endress v. Iowa Dep’t of Human Servs., No. 18-1329, 2019 WL
2524193, at *4–6 (Iowa Ct. App. June 19, 2019). Following the entry of our opinion,
DHS filed an application for further review, challenging in part our determination that
section 625.29(1)(b) did not apply to prevent the recovery of fees. Our supreme court
granted the application.
