                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1419


KOBE; MARK,

                Plaintiffs – Appellants,

          and

JOHN,

                Plaintiff,

          v.

NIKKI HALEY, in her official capacity as Governor and
Chairman of the South Carolina Budget and Control Board;
CHRISTIAN SOURA, in his capacity as the Director of the
South Carolina Department of Health and Human Services:
ANTHONY KECK, in his capacity as the former Director of the
South Carolina Department of Health and Human Services;
BEVERLY BUSCEMI, in her official capacity as Director of
the South Carolina Department of Disabilities and Special
Needs; RICHARD HUNTRESS, in his capacity as Commissioner of
the South Carolina Department of Disabilities and Special
Needs; KATHI LACY; THOMAS P. WARING; JACOB CHOREY, in their
capacities as employees of the South Carolina Department of
Disabilities and Special Needs; MARY LEITNER, in her
capacity as the Director of the Richland Lexington
Disabilities and Special Needs Board; JUDY JOHNSON, in her
capacity as the Director of the Babcock Center; DANIEL
COOPER; CONVERSE A. CHELLIS, III, HUGH LEATHERMAN; RICHARD
ECKSTROM; CURTIS LOFTIS; BRIAN WHITE, in their capacities
as former members of the South Carolina Budget and Control
Board; EMMA FORKNER, in her capacity as the former Director
of the South Carolina Department of Health and Human
Services; EUGENE A. LAURENT, former Interim Director of the
South Carolina Department of Disabilities and Special
Needs; STANLEY BUTKUS, former Director of the South
Carolina Department of Disabilities and Special Needs;
UNNAMED ACTORS     ASSOCIATED   WITH   THE    BABCOCK   CENTER;   THE
BABCOCK CENTER,

                  Defendants – Appellees,

           and

CYNTHIA MANN, Deputy Administrator and Director of the
Center for Medicaid, CHIP, and Survey & Certification, CMS;
ELEANOR KITZMAN, in her official capacity as the Executive
Director of the State Budget and Control Board; MCCONNELL
F. GLENN, in his official capacity as the President Pro
Tempore of the South Carolina Senate; ROBERT W. HARRELL,
JR., in his official capacity as the Speaker of the South
Carolina House of Representatives; MARK SANFORD, in his
capacity as a former member of the South Carolina Budget
and Control Board,

                  Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.       Margaret B. Seymour, Senior
District Judge. (3:11-cv-01146-MBS)


Argued:   September 22, 2016                 Decided:   December 15, 2016


Before TRAXLER, DIAZ, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Patricia L. Harrison, PATRICIA LOGAN HARRISON LAW
OFFICE, Columbia, South Carolina, for Appellants.      Damon C.
Wlodarczyk, RILEY, POPE & LANEY, LLC, Columbia, South Carolina;
Vance J. Bettis, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South
Carolina, for Appellees.    ON BRIEF: William H. Davidson, II,
Kenneth P. Woodington, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellees Buscemi, Butkus, Chorey, Huntress,
Lacy, Laurent & Waring. Patrick J. Frawley, DAVIS FRAWLEY, LLC,
Lexington, South Carolina, for Appellee Leitner.        Joel W.
Collins, Jr., Christian Stegmaier, Meghan Hazelwood Hall,

                                   2
COLLINS & LACY, P.C., Columbia, South Carolina, for Appellees
Babcock Center, Unnamed Actors Associated with the Babcock
Center & Johnson.       Robin L. Jackson, SENN LEGAL, LLC,
Charleston, South Carolina, for Appellees Chellis & Cooper.
Leslie A. Cotter, Jr., Sheila M. Bias, RICHARDSON, PLOWDEN &
ROBINSON,   P.A.,  Columbia,  South Carolina,  for  Appellees
Leatherman & Eckstrom.


Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

      “Kobe”        and   “Mark”        (“Appellants”) 1      appeal    district     court

orders dismissing certain defendants and then granting summary

judgment       to   others       in    an   action     primarily    pertaining     to   the

administration        of     a    South       Carolina    Medicaid      waiver   program.

Because we conclude that the district court erred in determining

that no justiciable issues remain in this case, we vacate the

grant     of    summary      judgment         against    Appellants      on   Counts    One

through Seven.            We also vacate the dismissal of Counts One and

Two   against       Governor          Nikki    Haley    in   her   official      capacity.

Otherwise, we affirm.

                                                I.

      The      Medicaid      program,          42    U.S.C.A.      §§   1396,    1396a-v,

established as part of the Social Security Act in 1965, “is a

cooperative federal-state public assistance program that makes

federal funds available to states electing to furnish medical

services       to    certain          impoverished      individuals.”         Mowbray    v.

Kozlowski, 914 F.2d 593, 595 (4th Cir. 1990); see also Harris v.

McRae, 448 U.S. 297, 301 (1980).                       The state agency responsible

for administering and supervising Medicaid in South Carolina is



      1Appellants are using pseudonyms to protect themselves from
possible retaliation.




                                                4
the   South    Carolina     Department       of    Health    and   Human    Services

(“DHHS”).      See Doe v. Kidd, 501 F.3d 348, 351 (4th Cir. 2007).

DHHS, in turn, contracts with the South Carolina Department of

Disabilities       and    Special   Needs         (“DDSN”)    to    operate    South

Carolina’s     treatment     and    training       programs    for    people    with

intellectual and related disabilities.                   DDSN is a seven-member

commission that is appointed by the Governor with the advice and

consent of the Senate.           DDSN contracts with local Disabilities

and Special Needs Boards (“DSN Boards”), which contract with

private entities to provide Medicaid services.

      The Richland Lexington Disabilities and Special Needs Board

(“Rich/Lex”) is “the administrative, planning, coordinating, and

service delivery body” for DDSN services that are provided in

South Carolina’s Richland and Lexington Counties.                          S.C. Code

§ 44-20-385.       It is funded by DDSN and follows DHHS’s and DDSN’s

policies and procedures.

      At   issue    in    this   case   is    the     Medicaid     waiver     program

created by 42 U.S.C. § 1396n(c), which allows states to waive

the requirement that aid recipients must live in an institution

to receive particular Medicaid services.                     This case concerns

home and community-based services that South Carolina provides

through    a   Medicaid    waiver    program       for   eligible    persons    with

disabilities so that they may live in the community and avoid



                                         5
institutionalization (the “ID/RD waiver”). 2                    As is relevant in

this case, among the several types of services provided through

the ID/RD waiver are Adult Day Health Care services (“ADHC”),

respite   care,    and    equipment      and    assistive       technology.       ADHC

provides individuals with medical or therapeutic care as well as

social    and   recreational      events       and    meals.     Respite    care    is

“[s]ervice[]      provided      to     individuals        unable    to     care    for

themselves [that is] furnished on a short-term basis because of

the   absence     or    need    for    relief    of     those    persons    normally

providing the care.”       J.A. 2894.

      Administration       of    the    ID/RD        waiver    services    generally

involves a service coordinator for each recipient, typically at

the county level.        The service coordinator’s role is to evaluate

the individual’s condition and needs, including information from

that person’s doctors and other medical professionals, and to

work with the individual’s family members in order to develop a

plan of care.          Service coordinators may approve some services



      2 “ID/RD” stands for “intellectual disabilities/related
disabilities.”   Although the ID/RD waiver was previously known
as the Mentally Retarded/Related Disabilities waiver, see
Stogsdill v. South Carolina Dep’t of Health and Human Servs.,
763 S.E.2d 638, 639 n.1 (S.C. Ct. App. 2014), the South Carolina
General Assembly amended various South Carolina code sections to
replace the former terms “mental retardation” and “mentally
retarded” with the terms “intellectual disability” and “person
with intellectual disability.”   See 2011 S.C. Act No. 47, § 13
(eff. June 7, 2011).



                                          6
themselves,        but   as    to   other        services,    they   only    make    a

recommendation to DDSN, which decides whether to approve them.

See generally 42 C.F.R. § 440.169.

     Appellants contend that for many years, DDSN has failed to

spend     monies    appropriated        by   the    General    Assembly     for     the

services the appropriations were intended to fund.                       Appellants

maintain     that    the      problem    has     been   compounded    because       the

failure to spend the appropriated funds caused them to miss out

on the federal matching funds that spending the funds would have

generated.

     In late 2009, several events occurred that Appellants point

to as causing a reduction of services provided under the ID/RD

waiver, purportedly for budgetary reasons. 3                   After the General

Assembly adjourned in 2009, DDSN announced that the Centers for

Medicare and Medicaid Services (“CMS”) had approved requested

changes to the ID/RD Waiver, effective January 1, 2010.                             The

changes     included          the   elimination         of    physical      therapy,

occupational therapy, and speech and language services “since

they [we]re covered under regular Medicaid.”                    J.A. 2607.     Also,

respite hours were limited to 68 hours per month unless one of

     3  Because we are reviewing orders granting motions to
dismiss and motions for summary judgment, we describe the facts
in the light most favorable to Appellants. For purposes of this
appeal, there is no material difference in the facts we consider
regarding the different motions.



                                             7
three      specific    conditions        were      present,    in   which   case,    the

client      could    receive      up    to    240    hours    per   month   upon     DDSN

approval. 4

       Appellants      contend         that       although    government     officials

represented that the waiver changes were motivated by budget

concerns,      in    fact   the    changes        increased   costs    significantly.

They       further    maintain         that   notwithstanding         the   claims    of

budgetary restraints, DHHS actually had more funding than it

even needed to avoid reducing the services it had previously

been providing.




       4   The three conditions were as follows:

       1.   Caregiver has been hospitalized or is receiving
       medical treatment causing the caregiver to be away
       from home for lengthy periods during the day for which
       respite takes the place of the caregiver to protect
       the health, safety, and welfare of the waiver
       participant.

       2.   The waiver participant is medically complex or
       severely disabled to the extent that the caregiver
       must provide him/her constant hands on/direct care and
       supervision for which the caregiver is not paid for 16
       hour[s] of a 24-hour day.

       . . . .

       3.   If support center services are unavailable to a
       participant age 12 to exiting high school and the
       primary caregiver works fulltime during the summer
       months of June, July, and August.

J.A. 2608.



                                              8
     The waiver amendments were not the only cause of reductions

in DDSN’s expenditures on ID/RD waiver services.                In December

2010, DDSN instructed the four local service coordinators in

Richland and Lexington Counties to complete new assessments for

ADHC service recipients in light of the requirement that ADHC

services are available only if the participants either have a

medically complex condition or require extensive assistance with

functional activities or tasks (the “medically complex/extensive

assistance requirement”). 5   Rich/Lex, in turn, informed affected

consumers of the impending reassessments. 6

     Appellants allege that the effort to reduce expenditures on

ID/RD waiver services was part of a plan to force them to attend

Work Activity Centers (“WACs”) operated by local DSN Boards.              A

WAC is “[a] workshop having an identifiable program designed to

provide   therapeutic   activities       for   workers   with   intellectual

disability whose physical or mental impairment is so severe as

to interfere with normal productive capacity.”             S.C. Code Regs.

     5 Appellees contend that this step was prompted when DDSN
officials noticed in late 2010 and early 2011 that service
coordinators in several counties were approving ADHC services
for a greater proportion of individuals than were generally
being approved in other counties.
     6 Also, in December 2010, DDSN requested reevaluation of the
medical justification for provision of assistive technology and
specialized medical equipment for particular consumers whose
costs were particularly high.




                                     9
88-405(K).        Appellants          contend      that     having        more     service

recipients attend WACs financially benefited DDSN as well as

local DSN Boards.        They emphasize that the profits generated by

WACs are paid to DDSN and may be spent at DDSN’s discretion

without     oversight        by     its     governing     board      or    the     General

Assembly.       Meanwhile,          Appellants      maintain      that      individuals

working in WACs are paid less than minimum wage, their medical

needs may not be properly attended to, and they are at risk for

abuse and neglect.           Appellants additionally allege that forcing

ADHC recipients to attend a WAC set to open soon in Columbia,

South Carolina, was the true motivation behind DDSN’s attempt to

terminate the ADHC services of many disabled persons in Richland

and Lexington Counties.

     Also at issue in this case are expenditures of DDSN funds

approved by the South Carolina Budget and Control Board (“BCB”).

Composed of the Governor, State Treasurer, Comptroller General,

Chairman of the Senate Finance Committee, and Chairman of the

House Ways and Means Committee, the BCB, at the time of the

events    at   issue    in    this        case,   acted   as   “an    executive      body

dealing     primarily        with     the     fiscal      affairs     of     the    State

government.”      State ex rel. McLeod v. Edwards, 236 S.E.2d 406,

406-07 (S.C. 1977).               However, the BCB was abolished effective

July 1, 2015.          See South Carolina Restructuring Act of 2014,

S.C. Act No. 121 (S. 22) (2014).

                                             10
       In late 2009, DDSN requested and received BCB approval for

the transfer of nearly $6 million from an excess funds account

containing $7.8 million.                From the requested funds, $2.6 million

was to purchase buildings to be used as WACS for two DSN boards

and    the    Babcock      Center; 7     $3,244,738      was    to    be    used    for   a

statewide       accounting         system;        and   $100,000        was      for   the

improvement         of    DDSN’s    Medicaid       billing     system.          Appellants

contend the transfer of these funds, which the General Assembly

had    intended          would     be    spent     on   ID/RD        waiver      services,

essentially gave the BCB control over the $3,244,738.                            Further,

Appellants maintain that by not spending the funds on services,

DDSN missed the opportunity to receive matching funds from the

federal government.

                                            Kobe

       Kobe has been disabled since birth due to severe cerebral

palsy.       He is intelligent but cannot walk, nor can he speak in a

way that others can understand him.                          His arms and legs are

strapped to his wheelchair with Velcro to keep him from hurting

himself due to his spasticity.                   At the time this suit was filed

in    2011,    he    was    39   years     old    and   he    lived    in   a    community

       7
       The “Babcock Center is a private, non-profit corporation
based in Columbia that provides housing and other services for
people with autism, [intellectual disabilities], head or spinal
injuries, or related disabilities.”    Madison ex rel. Bryant v.
Babcock Ctr., Inc., 638 S.E.2d 650, 654 (S.C. 2006).



                                             11
training    home    at     the    Babcock     Center.        Kobe’s       physician      has

determined that he needs ADHC services, and Kobe has attended

the Hope Bridge Adult Day Care program for many years.

     In December 2010, after the aforementioned decision by DDSN

to have Rich/Lex’s service coordinators reassess the eligibility

of   persons      using    ADHC    services,        Kobe’s     service         coordinator

determined        that     he     no     longer      satisfied           the     medically

complex/extensive assistance requirement and thus was no longer

eligible to continue to receive ADHC services.                            Kobe appealed

the decision to the DDSN Director.                 He continued to receive ADHC

during the pendency of his appeal.

     Kobe       also      maintains       that      the      government          has     not

consistently provided him with a functioning wheelchair.                                  In

early    2008     his     then-current      wheelchair        was    causing      him     to

develop     painful      ulcers    on    his      buttocks.         He    asserts       that

although a wheelchair was inserted into his plan of care in

January    2008,    he    did    not    actually     receive    the       wheelchair      he

needed    until    April     2009.       Then     shortly     thereafter,         his    new

wheelchair was damaged and the headrest needed to be replaced.

As a result, he spent weeks in bed while his wheelchair was not

functional and he was unable to attend Hope Bridge.

     Kobe    was    injured       and   his      wheelchair    further         damaged    on

December 28, 2010, when Kobe was dropped from a van as he was

being transported between Hope Bridge and the Babcock Center.

                                            12
His broken wheelchair prevented him from attending Hope Bridge

from December 28, 2010, until January 18, 2011.              Even after his

return,   the   wheelchair     remained   damaged   and   malfunctioned     in

ways that sometimes left him “in bed for days.”           J.A. 3656.

     Kobe’s     efforts   to    obtain    the    equipment     he   needs   to

communicate also have often been unsuccessful.            Since 2009, Kobe

has been requesting help in improving his reading skills, but he

has not been provided adult education classes, because he did

not have a device to help him communicate.            An investigation by

the Lieutenant Governor’s Office in the summer of 2010 into a

report by Hope Bridge staff that Kobe was being neglected at the

Babcock   Center    revealed     that     Kobe   needed   an    augmentative

communications device (“ACD”) in order to communicate his needs

to the staff.      And the Lieutenant Governor’s Office notified

DDSN of this need in October 2010. 8              Kobe’s doctors ordered

speech evaluations on December 7, 2010, and on January 13, 2011,

and he received an evaluation in March 2011 from the Palmetto

Health Rehab Center.         He tried a number of different speech

devices and experienced great success with the “Tobii C12 with

Eye Control,” which allowed him to synthesize speech with eye


     8 Kobe identified several specific health problems that he
has suffered as a result of not being able to communicate
properly.




                                     13
movements.          Such a device would enable him to communicate with

staff     so    as     to     receive     proper       care     and    make     his    own

appointments.

                                            Mark

       Mark has Down Syndrome and, although he is an adult, he

functions at the level of a two-year-old.                          Since his father

died,    he    has    lived    with     his    adult    sister    in    her     home   and

requires constant supervision.

       Like Kobe, Mark receives ADHC services and he attends Hope

Bridge.        Also like Kobe, Mark was notified in 2011, following

Rich/Lex’s reassessments, that he no longer was eligible for

ADHC    services,       although      his      services       continued    during      the

pendency       of     the     appellate       process.          Mark    appealed       the

eligibility         decision   to   the     DDSN   Director,      but     the   Director

upheld the decision.               He therefore appealed that decision to

DHHS.

       Important to Mark’s sister’s continued ability to care for

him in her home is Mark’s entitlement to respite care.                           Mark is

concerned that if his sister were to become ill and require

hospitalization for several weeks, rendering her unable to care

for    him,    the    new   caps    would     prevent     him   from    receiving      the

number of respite care hours he would need and could require him

to enter an institution to receive the care he would need.

                                        Lawsuit

                                              14
      Appellants       brought       this   action    in    May   2011     in    federal

district court, and filed an amended complaint in October 2011. 9

Appellants’ amended complaint alleges many overlapping causes of

action primarily asserting, under various theories, that they

were deprived of services they were entitled to receive in a

timely      fashion. 10       These     services      included      ADHC       for     both

Appellants, Kobe’s wheelchair and ACD and physical, occupation,

and   speech     and      language    therapy,     and     Mark’s   respite          hours.

Several claims challenge the BCB’s alleged failure in 2009 “to

insure that the funds paid to [DDSN] were spent appropriately

for services Plaintiffs . . . need, despite repeated warnings

from the South Carolina Legislative Audit Council, federal and

state audits showing that [DDSN] was spending those funds to

purchase real estate to force waiver participants into WAC’s to

profit the State.”          J.A. 220, see J.A. 225, 228, 231.

      The     amended       complaint       asserts      causes     of    action        for

violation      of   the     Americans       with     Disabilities        Act    of     1990

(“ADA”), see 42 U.S.C. §§ 12101 et seq. (Count One); violation


      9Originally there was a third plaintiff, who was eventually
voluntarily dismissed from the suit.
      10Among other theories, Appellants alleged that Appellees
have failed to give deference to the treating orders of their
physicians; endangered their right to receive services in the
most integrated setting appropriate, and failed to establish
reasonable standards and promulgate regulations for operating
the waiver program.



                                            15
of Section 504 of the Rehabilitation Act of 1973, see 29 U.S.C.

§ 794 (Count Two); violation of 42 U.S.C. § 1983 (Count Three);

violation of 42 U.S.C. § 1983 and 1988 (Count Four); 11 commission

of a conspiracy in violation of 42 U.S.C. 1985(3) (Count Five);

violation of the Supremacy Clause (Count Six); and violation of

the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

see 18 U.S.C. §§ 1503, 1512, 1513 (Count Seven).               Kobe also

asserted state law claims for negligence, intentional infliction

of   emotional   distress,   and   assault   and   battery   against   the

Babcock Center and other Appellees in regard to his care during

the time he lived there (Count Eight). 12



      11Counts Three and Four included allegations of violations
of Appellants’ rights under the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution, as well as the
Medicaid Act, see 42 U.S.C. § 1396 et seq.
      12The amended complaint named numerous state officials and
others   as   defendants   (collectively,  “Appellees”).     The
defendants can be divided into several categories.     There are
DHHS Directors – Emma Forkner and Anthony Keck (“the DHHS
Appellees”); DDSN Directors and other DDSN officials – Beverly
Buscemi, Eugene Laurent, Stanley Butkus, Kathi Lacy, Richard
Huntress, Thomas Waring and Jacob Chorey (“the DDSN Appellees”);
the Director of Rich/Lex – Mary Leitner; the Director of the
Babcock Center, Judy Johnson, as well as other unnamed actors
associated with the Babcock Center (collectively, “the Babcock
Center Appellees”); and the Governor and other members of the
BCB (the “BCB Members”).

     The BCB Members included Governor Haley, who assumed office
in January 2011 as Governor of South Carolina and Chairman of
the BCB; former Governor Mark Sanford, who preceded Governor
Haley as Governor and BCB Chairman; former State Representative
Daniel Cooper, who served as a BCB member by virtue of his
(Continued)
                                    16
     As is relevant here, the amended complaint requests that

the district court:

     -    “Issue an order of protection prohibiting [DDSN]
     and its agents and employees from retaliating against
     the Plaintiffs or their families.”

     -    “Assume   jurisdiction  over  this   action  and
     maintain continuing jurisdiction until the Defendants
     are in full compliance with every order of [the
     district court.]”

     -    “Issue   an   injunctive  order  declaring   that
     Defendants’ policies, practices, acts and omissions,
     as set forth above, violate Plaintiff[s’] rights under
     the ADA and Section 504 of the Rehabilitation Act and
     the Medicaid Act.”

     -    “[Issue] an order prohibiting the Defendants from
     reducing ADHC services and requiring Defendants to
     provide such additional services as shall be medically
     necessary, as shall be determined by [Plaintiffs’]
     treating physicians, so as to allow Plaintiffs . . .
     to live in the most integrated settings possible . . .
     .”

     -    “So long as the cost of these services is less
     than the cost of ICF/MR services, [issue] . . . an


service as Chairman of the Ways and Means Committee of the South
Carolina House of Representatives until January 2011; former
State Treasurer Converse Chellis, who served as a BCB member by
virtue of his position as State Treasurer until January 2011;
State Senator Hugh Leatherman, who served as a BCB member by
virtue of his position as Chairman of the Finance Committee of
the South Carolina Senate until the BCB was abolished in 2014;
and State Treasurer Curtis Loftis and Representative Brian
White, who succeeded Chellis and Cooper, respectively, and both
of whom served as BCB Members until the BCB was abolished in
2014.

     Governor Haley, Loftis, and White were sued solely in their
official capacities, while the other Appellees were sued in both
their individual and official capacities.



                               17
         order requiring Defendants to provide Medicaid waiver
         services as shall be determined by the treating
         physicians to be necessary absent review and an order
         from the [district court] during this litigation.”

         -    “[Disgorge from] Defendants and their associated
         enterprises or organizations . . . ill gotten gains.”

J.A. 244-45.             The amended complaint also requests actual and

punitive damages and attorneys’ fees and costs. 13

                Events Subsequent to the Filing of this Lawsuit

         In May 2011, Kobe moved out of the Babcock Center to a

congregate         group       home    operated       by     United    Cerebral       Palsy,   a

private provider.              However, Kobe has stated that he “want[s] to

live in [his] own apartment in the community instead of living

in a home with three other people who have disabilities.”                                  J.A.

3655.

         Kobe’s        troubles       obtaining        and     maintaining        a     working

wheelchair continued after filing this suit.                               Kobe’s plan of

care as of May 12, 2011, included the need for a new wheelchair

or   a        repair   of   the    one    he    had    been     using.         Weeks    passed,

however, and he did not receive a new one.

         Kobe’s struggles to obtain the Tobii ACD continued as well.

As of June 7, 2011, his plan of care included the Tobii C12 ACD.

Nevertheless,           once    more     than   a     year    had     passed    after   Kobe’s

         13
        The amended complaint contains class action allegations
in the body of the complaint.      However, Appellants sought no
class certification and have conceded that this action is not
being brought on behalf of others.



                                                18
speech    evaluation,      Kobe      was   told    that      he   would    need   a   new

evaluation because the first one was not sufficiently recent.

      Kobe     received    another      evaluation,       during     which   he   tried

several ACDs that did not work for him due to his spasticity.

The evaluator again determined that he needed the Tobii device.

Kobe’s treating physician signed an order requesting the device,

certifying it as medically necessary, and Kobe requested it from

DHHS.     DHHS initially denied his request on August 23, 2011, on

the basis that Kobe had not provided adequate documentation of

medical    need.    As    of   the    filing      of   the   amended      complaint    in

October 2011, Kobe still had not received the device he had

requested.

      As for Kobe’s pending appeal of his service coordinator’s

decision that he no longer qualified for ADHC services, on May

11,     2011   –   the    same    day      Appellants        filed   their    original

complaint – DDSN’s Director reversed the service coordinator’s

decision, determining that Kobe indeed did satisfy the then-

existing requirements.            As the result of this reversal, Kobe’s

ADHC services never lapsed.

      Despite obtaining a reversal of the decision that he was no

longer eligible for ADHC, Kobe appealed to DHHS.                       In his appeal,

Kobe complained that he had not received written notice of the

intent to reduce or eliminate his services.                       He also complained

that DHHS had failed to provide him “with speech and language

                                           19
services,      physical         therapy,        occupational     therapy,         adult

companion services and with an appropriate communications device

or to notify him of all feasible alternatives under the [ID/RD]

Medicaid waiver.”          J.A. 2533.        The appeal was resolved in mid-

October 2011 according to the following terms provided in an

August 9, 2012, consent order:

       1.   The Parties agree that [Kobe] meets criteria for
       and is appropriate for [ADHC].     Waiver participants
       are evaluated yearly under 42 CFR §441.302(c)(2).

       2.   As an [ID/RD] Waiver Participant, [Kobe] will be
       allowed to continue to receive ADHC offered by the
       [ID/RD] Waiver, provided by the qualified provider of
       his choice.

J.A. 2458.

       Mark’s appeal to DHHS regarding his ADHC eligibility was

also resolved in mid-October 2011 by agreement.                    An August 2012

consent   order     memorializing         the    agreement     contained    language

identical    to    that    of    Kobe’s    and    thus   established       that   Mark

satisfied         the      medically            complex/extensive      assistance

requirement.      Like Kobe’s ADHC services, Mark’s never lapsed.

       Shortly after resolving Appellants’ administrative appeals,

DHHS    eliminated        the    medically       complex/extensive     assistance

requirement    that     had     been   the      basis   for   Appellants’    service

coordinators’ initial decisions (“the 2011 Policy Change”).

             Motions to Dismiss and for Summary Judgment




                                           20
     As the present lawsuit continued, Governor Haley, Loftis,

White, Cooper, and Chellis filed motions to dismiss the claims

against    them,         arguing     they     were    entitled       to   dismissal         for   a

variety of reasons.                 See Fed. R. Civ. P. 12(b)(1), (6).                       They

all maintained they were entitled to dismissal on the basis of

Eleventh Amendment immunity of all claims asserted against them

in their official capacities.

     In their memoranda opposing dismissal of these defendants

on the basis of Eleventh Amendment immunity, Appellants relied

primarily on the Ex Parte Young exception to Eleventh Amendment

immunity.        See      Ex    parte     Young,      209    U.S.     123     (1908).        They

asserted       that       as    to    Loftis,        White,        Cooper,       and   Chellis,

Appellants were seeking prospective relief only.                                 See J.A. 781

(“Plaintiffs         .     .    .    seek     only        prospective        relief     against

Defendants Loftis and White.”); J.A. 1086 (“All of the relief

requested       by       the      Plaintiffs         as     to     Defendant       Cooper         is

prospective.”);            J.A.      1115     (“Only        prospective          relief,      and

attorneys fees, are requested from [Chellis].”).

     Considering            the      various     motions,           the      district       court

dismissed all claims against Haley, Cooper, Loftis, Chellis, and

White.      Regarding          the    claims    asserted          against     them     in   their

official    capacities,             the   district        court     concluded      that     these

defendants were entitled to Eleventh Amendment immunity as a

matter    of    law.           The    court    ruled        that    the     Ex    Parte     Young

                                               21
exception did not apply to requests for redress for violations

that occurred wholly in the past, including those relating to

the BCB’s involvement in the use of funds from the excess fund

to    purchase     real      estate.           Regarding       prospective          relief     for

ongoing    violations,            the    court        concluded    that     none      of     these

defendants       had        the     requisite          special      connection          to     the

administration         of    the    state’s       Medicaid        program    such      that     an

injunction against them would provide Appellants any effective

redress.     And to the extent the defendants were sued in their

individual capacities, the court ruled that there could be no

prospective      relief;          the    court        reasoned    that    even       should     an

injunction    be    entered         against       them,    they     did    not       occupy    any

positions through which they could remedy Appellants’ claimed

injuries.        The    court       also       ruled    that     they    were       entitled    to

legislative immunity.

       Leatherman       and       Eckstrom       subsequently       filed       a    motion    to

dismiss or for summary judgment, advancing arguments similar to

those of the other BCB Members.                       Appellants opposed the motion,

but, as they had regarding Loftis, White, Cooper, and Chellis,

they abandoned any claims for retrospective relief against these

defendants.        See       J.A.       2240    (“[T]he    only     relief       [Appellants]

request from [Leatherman and Eckstrom] is injunctive relief.”).

The district court granted the motion, ruling that Leatherman

and    Eckstrom     were          entitled       to     Eleventh     Amendment         immunity

                                                 22
because     the   Ex    Parte   Young      exception        did    not    apply    since

Appellants could not obtain any prospective injunctive relief

against Leatherman and Eckstrom and because Appellants alleged

no     ongoing    violation     of   the    law.       The        court    also    ruled

Leatherman and Eckstrom were entitled to legislative immunity to

the extent they were sued in their individual capacities.

       The case then proceeded against the remaining defendants.

After discovery had been completed, Appellants and the remaining

defendants filed cross-motions for summary judgment. 14                            As is

relevant to this appeal, several of the defendants maintained

that the claims in this suit were no longer justiciable.                              The

DDSN    Appellees,     in    particular,        contended    that    several       events

mooted Appellants’ claims.              They argued that the 2011 Policy

Change      mooted     any   issue     about      Appellants’       entitlement       to

prospective relief protecting their right to receive ADHC.                           The

DDSN Appellees also argued that the reversal by their Director

of the determination that Kobe was not eligible for ADHC, at a

time when the Director was not even aware of the existence of

the     lawsuit,       mooted    any       claim      regarding           the     service


       14
        The parties had once previously filed cross-motions for
summary judgment.    The district court denied those motions
without prejudice so as to allow Defendants to engage in
discovery regarding certain witnesses that Plaintiffs had only
recently identified.




                                           23
coordinator’s original decision.                    The Babcock Center Appellees

also    argued     that    Appellants       failed       to   forecast        evidence   of

proper damages to meet RICO’s standing requirements.

       In support of their motion for partial summary judgment,

Appellants contended they were entitled to summary judgment on

several      individual      issues      relating        to   the   merits       of   their

claims.        And, in opposition to the remaining Appellees’ summary

judgment motions, Appellants maintained, as is pertinent here,

that     the     “voluntary       cessation”        exception       to     the   mootness

doctrine       prevented    the     2011    Policy       Change     from      mooting    the

claims      concerning      their     ADHC        eligibility,      Kobe’s       equipment

needs, and the provision of in-home services to Mark.

            Additional Developments Regarding Kobe’s Attempts

                                   to Obtain an ACD

       DHHS formally denied Kobe’s request for the Tobii device on

November 14, 2011.           DHHS’s response stated that the reason for

the    denial     was     that    Kobe     was     not    involved       in   educational

endeavors but instead needed to communicate only in order to

express health and well-being needs, comfort and discomfort, and

to conduct normal speech. 15             On that basis, DHHS decided that an


       15
        Appellants express frustration with DHHS’s position in
light of their allegation that Kobe had been denied educational
opportunities because he did not have a speech device.




                                             24
ACD    with   pre-recorded     messages,        as     opposed    to   an    ACD   that

synthesized    speech,     would     be    adequate       for   him.     Rather    than

engage in what they expected would be a lengthy administrative

appeal   process,    Appellants       decided        to   litigate     Kobe’s   claims

regarding his entitlement to the ACD in the current lawsuit.

       Nearly two years after DHHS had denied his request, in the

summer of 2013, Rich/Lex was “able to secure a Tobii unit for

‘Kobe’    through    the     University         of    South     Carolina     Assistive

Technology Exchange Program” (the “USC Program”).                           J.A. 2558.

There is no dispute that the “Tobii C-15 Eye Gaze unit” the USC

Program provided “allows [Kobe] to communicate by shifting his

eye gaze to letters on a board” and thus is sufficient to meet

Kobe’s needs.       J.A. 2558.       However, as of January 2, 2014, the

unit    was   not   attached    to    Kobe’s         damaged    wheelchair.        Kobe

therefore could not effectively use the device when he left his

home.    By the time of the September 23, 2014, summary judgment

hearing, Kobe had finally received a new wheelchair, but the ACD

had not yet been attached.

       Kobe describes the ACD that the USC Program has allowed him

to use as a “loaner,” and he states that “it does not belong to

[him] and [he is] afraid that they will take it back once this

lawsuit is over.”          Appellants’ brief at 25 (internal quotation

marks omitted); J.A. 3654.                However, Rich/Lex’s representative

stated in a January 2014 affidavit that “[t]he arrangement with

                                           25
the USC Program is that ‘Kobe’ can keep the . . . device so long

as he continues to use it.”                   J.A. 2558.         The representative

added in a later affidavit that the USC Program director had

stated that “the device was Kobe’s as long as he uses it” and if

Kobe    “ever   stops     using    it    –    which    is    unlikely     –    [the   USC

Program] would probably like it back so someone else would be

able to benefit from it; but there is no express agreement or

contract to that effect, and the device is not ‘on loan’ to

Kobe.”      J.A. 4440.

       Considering the cross-motions for summary judgment from the

remaining parties, the district court 16 granted summary judgment

against      Appellants     on    all    claims       (except      for   Count    Eight,

asserting       state     law     claims          against    the     Babcock       Center

Appellees),      and     denied    Appellants’         motion. 17        The     district

court’s decision was based on a combination of three grounds

relating to justiciability:              (1) that Kobe’s entitlement to a

wheelchair      was     mooted    when   he       received   a     functioning     chair

during this case, (2) that Mark’s claim to additional respite

care hours was not ripe because the possibility that the new

       16
        The case had been reassigned to a different district
judge in July 2014.
       17
       The district court also dismissed former Governor Sanford
since there was no evidence that he was ever served with copies
of the summons and complaint. See Fed. R. Civ. P. 4(m).




                                             26
caps    would     cause     him        to     be     institutionalized             was    only

speculative, and (3) that Appellants lacked standing to seek

injunctive relief from the “allege[d] systemic failures within

the DHHS and DDSN systems” and the alleged “mishandling of funds

and    exploitation”      because           they   did     not    show    a        particular

cognizable injury or an immediate threat of injury from that

alleged conduct, J.A. 4432.                   The district court, noting that

“Kobe’s ACD device was not installed on his wheelchair at the

time of the hearing and thus [was] not accessible to him[,] . .

. order[ed] that the ACD device be properly affixed to Kobe’s

wheelchair no later than ten (10) days from the date of entry of

th[e] order.”          J.A. 4433 (emphasis omitted).                     The device has

since been installed.

       Appellants subsequently filed a motion to alter or amend,

challenging      the    grant     of       summary    judgment      on    a    variety      of

grounds.      See Fed. R. Civ. P. 59(e).                 As is relevant here, they

contended that the district court ignored much of the factual

predicate     supporting       several        of   their     claims      and       failed   to

explain    its   decision       to     dismiss     several       other   claims.          They

specifically     emphasized          the    court’s      failure    to    address         their

claims that Appellees failed to provide Kobe a wheelchair and

ACD    with    reasonable       promptness.              Regarding       justiciability,

Appellants argued that the district court failed to recognize

that   they    were    among    the     intended      beneficiaries           of    the   DHHS

                                              27
funds used to purchase real estate.                 They contended      that their

challenges       to   illegal        policies       were     ripe     because      the

administrative decisions at issue had already been finalized.

     Before the court ruled on that motion, the parties settled

Count 8, regarding injuries Kobe allegedly suffered while living

at the Babcock Center, and the claim was dismissed by a consent

order.

     The    court     later   denied        Appellants’      Rule   59(e)   motion.

Regarding    a   contention     by    Appellants      that    the   court   had    not

addressed Kobe’s claim that he was entitled to be placed in a

Supervised Living Program (“SLP”) apartment, 18 the district court

concluded that such a claim was not ripe because “[t]here is no

evidence    regarding    if   or     when    [any   request    made    by   Kobe    to

Rich/Lex] was forwarded to [DDSN], or whether DDSN has rendered

an unfavorable administrative decision or failed to respond to

Kobe’s request.”      J.A. 4495.

                                        II.

     Appellants first argue that the district court erred in

granting summary judgment against the then-remaining defendants




     18 An SLP would be a less-restrictive setting than the one
Kobe currently lives in.




                                        28
on   justiciability    grounds      on    Counts    One    through     Seven. 19

Appellees, on the other hand, maintain that the district court

properly ruled that no live controversy remains in this case.

Appellees argue that because no justiciable issues remain, we

need not even address the Appellants’ arguments regarding the

dismissal of the BCB Members from the case.               We therefore begin

our analysis with these justiciability questions.              See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“[E]very

federal   appellate   court   has   a     special   obligation    to   satisfy

itself not only of its own jurisdiction, but also that of the

lower courts in a cause under review.” (internal quotation marks

omitted)).

      We review de novo a district court’s ruling concerning

subject-matter jurisdiction.         See Simmons v. United Mortg. &

Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir. 2011).               “We review a

district court’s decision to grant summary judgment de novo,

applying the same legal standards as the district court, and

viewing all facts and reasonable inferences therefrom in the

light most favorable to the nonmoving party.”              T–Mobile Ne., LLC

v. City Council of Newport News, 674 F.3d 380, 384–85 (4th Cir.

2012) (internal quotation marks omitted).             Summary judgment is



     19At the summary judgment hearing, Appellants abandoned any
damages claims against the remaining defendants.



                                     29
appropriate   “if   the    movant   shows    that    there      is   no   genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”       Fed. R. Civ. P. 56(a).

     In   order   for    the   federal    courts    to   have    jurisdiction,

plaintiffs must possess standing under Article III, § 2 of the

Constitution.     See David v. Alphin, 704 F.3d 327, 333 (4th Cir.

2013).    Article III standing, in turn, has three “irreducible

minimum requirements”:

     (1) an injury in fact (i.e., a ‘concrete and
     particularized’ invasion of a ‘legally protected
     interest’);

     (2) causation (i.e., a ‘fairly ... trace[able]’
     connection between the alleged injury in fact and the
     alleged conduct of the defendant); and

     (3) redressability (i.e., it is ‘likely’ and not
     merely ‘speculative’ that the plaintiff’s injury will
     be remedied by the relief plaintiff seeks in bringing
     suit).

Pender v. Bank of Am. Corp., 788 F.3d 354, 365 (4th Cir. 2015)

(quoting Sprint Commc’ns Co., L.P. v. APCC Serv., Inc., 554 U.S.

269, 273–74 (2008)).       Regarding the injury-in-fact prong, “[a]n

allegation of future injury may suffice if the threatened injury

is certainly impending, or there is a substantial risk that the

harm will occur.”       Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334, 2341 (2014) (internal quotation marks omitted).

     “To qualify as a case fit for federal-court adjudication,

an actual controversy must be extant at all stages of review,

not merely at the time the complaint is filed.”                  Arizonans for
                                     30
Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal

quotation marks omitted).                  Accordingly, a case is moot “when the

issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.”                          Chafin v. Chafin,

133   S.    Ct.      1017,    1023    (2013)    (some    internal       quotation     marks

omitted).

      Another         “Article       III    threshold     question”      is    whether     a

“dispute is ripe for adjudication.”                      Lansdowne on the Potomac

Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d

187, 198 (4th Cir. 2013).                     “A claim should be dismissed as

unripe if the plaintiff has not yet suffered injury and any

future     impact      remains       wholly    speculative.”           Doe    v.   Virginia

Dep’t      of   State    Police,       713     F.3d    745,     758    (4th   Cir.    2013)

(internal quotation marks omitted).                    “The basic rationale of the

ripeness doctrine is to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete

way by the challenging parties.”                      Pacific Gas & Elec. Co. v.

State Energy Res. Conserv. & Dev. Comm’n, 461 U.S. 190, 200

(1983)     (internal         quotation      marks     omitted).        When   determining

ripeness,       we    traditionally         consider     “(1)    the    fitness      of   the

issues for judicial decision and (2) the hardship to the parties

                                               31
of withholding court consideration.”                 Cooksey v. Futrell, 721

F.3d    226,    240    (4th     Cir.   2013)      (internal   quotation    marks

omitted).      “A case is fit for adjudication when the action in

controversy is final and not dependent on future uncertainties”;

conversely, a claim is not ripe when “it rests upon contingent

future events that may not occur as anticipated, or indeed may

not    occur   at   all.” 20     Scoggins    v.    Lee’s   Crossing   Homeowners

Ass’n, 718 F.3d 262, 270 (4th Cir. 2013) (internal quotation

marks omitted).         The hardship prong, on the other hand, “is

measured by the immediacy of the threat and the burden imposed

on the plaintiffs.”            Miller v. Brown, 462 F.3d 312, 319 (4th

Cir. 2006) (alterations and internal quotation marks omitted).

       Regarding      the   district    court’s      conclusion   that    events

during the pendency of this case have put an end to any live

controversy, Appellants contend that the record, viewed in the

light most favorable to them, demonstrates that:

       Appellees have not yet voluntarily ceased the conduct
       of   failing  to   provide services   with  reasonable
       promptness, failing to establish reasonable standards,
       failing to provide services in the amount, duration
       and scope necessary to meet Plaintiffs[’] needs in
       order [for them to be able] to remain in the least
       restrictive setting.



       20
        A fit case would ideally present “purely legal” issues.
See Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006).




                                        32
Appellants’      brief      at   44.      They    also       contend       that   the    caps

affecting the amount of respite care Mark can receive have not

been    eliminated.          They   argue      that    even     to    the    extent      that

Appellees      have    voluntarily       ceased       some    of     the    complained-of

conduct by confirming their eligibility for ADHC or providing

them with requested services and equipment, exceptions to the

mootness doctrine apply.               And they maintain that the district

court       failed     to     explain     how      its       conclusions          regarding

justiciability        justified        granting    summary         judgment       on    their

various claims.

       We will address these seriatim, beginning with the issues

relating to Appellants’ eligibility to receive ADHC, and then

moving to those pertaining to Kobe’s requests for particular

equipment     and     services.        Then,     finally,      we    will    address      the

district      court’s       implicit    conclusion       that       the    justiciability

issues warranted granting summary judgment against Appellants on

each of the first seven counts. 21


       21
        In their initial brief, Appellants do not challenge the
district court’s ruling that their challenge to the respite-
hours caps was not ripe because they had not shown that Mark had
in fact been affected by the caps or that there was any
nonspeculative possibility that he would be affected in the
future.   For the first time, in their reply brief, Appellants
offer a cursory challenge to that conclusion, suggesting that if
his circumstances were to change such that his sister became
physically incapacitated or otherwise unable to care for him for
an extended period, then the caps could prevent him from
receiving the respite care he would need and could even result
(Continued)
                                            33
     We start with Appellants’ argument that their claims remain

justiciable to the extent they concern the termination of their

eligibility to receive ADHC services.           Appellants contend that

despite the fact that they prevailed during the administrative

appeal process regarding termination of their ADHC services, the

claims relating to those services continue to present a live

controversy and should not be dismissed as moot. 22

     “It   is   well   settled   that   [the]    defendant’s   voluntary

cessation of a challenged practice does not deprive a federal


in his institutionalization.    Even if the issue were properly
before us, Appellants have done nothing to demonstrate that the
prospect of such a change in circumstances was anything more
than speculative.     Nor have they identified any immediate
hardship Mark would suffer from being unable to resolve the
legality of the new limits in this suit. We conclude therefore
that they have failed to satisfy their burden of showing that
their challenges to the new respite-hour limitations are ripe.
See Miller, 462 F.3d at 319 (“The burden of proving ripeness
falls on the party bringing suit.”).

     Appellants offer no challenge to the district court’s
ruling that their claim that Kobe is entitled to be provided
with an SLP is unripe.   Nor do they challenge the ruling that
Appellants’ claim demanding payment for the speech pathologist
who evaluated Kobe and provided him with speech services fell
outside the scope of their complaint.     We therefore do not
address those issues.
     22Appellants argue that at this stage they are entitled to
an award of attorneys’ fees regarding claims in which Appellees
have voluntarily ceased their allegedly wrongful conduct.
However, Appellants do not identify any ruling by the district
court addressing the fee issue, and we decline to address the
attorneys’-fee issue in the first instance.




                                  34
court of its power to determine the legality of the practice”

unless     it     is    “absolutely     clear     that    the    allegedly      wrongful

behavior could not reasonably be expected to recur.”                        Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,

189    (2000)         (internal   quotation      marks    omitted);       see   Knox   v.

Service Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287

(2012) (“The voluntary cessation of challenged conduct does not

ordinarily render a case moot because a dismissal for mootness

would permit a resumption of the challenged conduct as soon as

the case is dismissed.”).               Without that rule, “courts would be

compelled        to    leave    the   defendant    free   to     return    to    his   old

ways.”      City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283, 289 n.10 (1982) (alterations and internal quotation marks

omitted).         The     party    asserting     mootness       bears   “[t]he    ‘heavy

burden of persua[ding]’ the court that the challenged conduct

cannot reasonably be expected to start up again.”                       Wall v. Wade,

741 F.3d 492, 497 (4th Cir. 2014) (quoting Laidlaw, 528 U.S. at

189).

       Additionally, “[a] case that would otherwise be moot is not

so    if   the    underlying      dispute   is    ‘capable       of   repetition,      yet

evading review.’”              Stop Reckless Economic Instability Caused by

Democrats v. FEC, 814 F.3d 221, 229 (4th Cir. 2016) (quoting

Southern Pac. Term. Co. v. ICC, 219 U.S. 498, 515 (1911)).                             The

Supreme Court has explained

                                            35
     that in the absence of a class action, the “capable of
     repetition, yet evading review” doctrine [is] limited
     to the situation where two elements combined: (1) the
     challenged action was in its duration too short to be
     fully litigated prior to its cessation or expiration,
     and (2) there was a reasonable expectation that the
     same complaining party would be subjected to the same
     action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).

     Appellants argue, essentially, that Appellees’ reversal of

their service coordinators’ decisions that they were no longer

eligible     for     ADHC    services         was     a     voluntary    cessation       of

Appellees’        challenged      conduct.             Appellants       maintain       that

Appellees have not met their “heavy burden” of showing that, if

Appellants’       claims    are   dismissed,         Appellees     would      not    simply

reverse course again after this litigation regarding Appellants’

eligibility for ADHC.             See Pashby v. Delia, 709 F.3d 307, 316

(4th Cir. 2013).         We disagree.

     Assuming that when this suit was initiated Appellants had

standing     to     challenge         their      service      coordinator’s         initial

decision that they were no longer eligible to receive ADHC, the

claims regarding their eligibility became moot once Appellants

obtained a reversal of the decision through the administrative

appeal process without ever having their ADHC discontinued.                             The

reversals    were    “not    .    .    .   voluntary        cessation[s]      within    the

meaning    of     that   doctrine,         but     w[ere]    instead    the    result   of

[Appellants’] successful administrative appeal[s].”                           Oregon Nat.


                                              36
Res. Council, Inc. v. Grossarth, 979 F.2d 1377, 1379 (9th Cir.

1992)    (holding       that     action    challenging    United     States   Forest

Service’s approval of a timber sale became moot when challenged

sale was halted as a result of an administrative appeal).                       Cf.

ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d

44, 55 (1st Cir. 2013) (“The voluntary cessation doctrine does

not     apply    when     the    voluntary       cessation    of   the   challenged

activity occurs because of reasons unrelated to the litigation.”

(internal quotation marks omitted)); Sze v. INS, 153 F.3d 1005,

1008 (9th Cir. 1998) (similar).

      Appellants’ argument that their challenges regarding their

ADHC eligibility fit within the capable-of-repetition exception

fail as well.            Appellants offer no argument as to why such

claims would inherently be too short in duration to be able to

be fully litigated, and we know of no reason that they would be.

See Weinstein, 423 U.S. at 149.                  We therefore conclude that the

district court correctly determined that Appellants’ challenges

regarding their eligibility for ADHC services are moot.

      We     reach      the     opposite    conclusion,      however,    concerning

Appellants’       claims       regarding    Appellees’       responses   to   Kobe’s

needs      for   particular       equipment      and   technology.       Appellants

allege, under various legal theories, that Appellees wrongfully

failed to promptly provide Kobe with the equipment he needed,

particularly a functioning wheelchair and the ACD he requested.

                                            37
Appellants argue that even if Appellees’ conduct during this

case has      satisfied         Kobe’s       needs      for    the     time    being,      neither

Appellees nor the district court offer any suggestion as to how

Appellees     have     carried         the    heavy      burden      of    showing      that    the

complained-of        pattern       of        allegedly         unreasonable          delays     and

improper denials will not resume after this case is completed.

In fact, Appellees have not even made that showing with regard

to the specific items that are the subject of Kobe’s claims.

      Kobe’s     future         prospects          with       regard      to   the     ACD     seem

especially uncertain.              DHHS denied his request for the ACD his

doctor      ordered,       and    while       the       USC     Program,       apparently       at

Rich/Lex’s request, has now voluntarily allowed Kobe to use a

satisfactory        ACD,    there       is    no   indication          that    DHHS     has    ever

altered its decision that Kobe is not legally entitled to such a

device.       If,    after       this    case      is     completed,       the    USC      Program

requests     return        of    the    ACD     or      if    Kobe     needs     it    adjusted,

repaired, or replaced, he could well be met with the same sort

of   allegedly       improper          delays        and      denials      that       he     claims

repeatedly occurred before he decided to press his claims in

court. 23      Cf.    Pashby,          709    F.3d      at    316    (holding         that    state



      23In fact, it was only by virtue of an order of the
district court in this case that Appellees even attached the
device to Kobe’s wheelchair so that it would be accessible to
him outside of his house.



                                                38
agency’s “voluntar[y] reinstate[ment]” of benefits after agency

had    previously        announced         that        recipients         no    longer       met   the

eligibility requirements for those benefits did not moot suit

challenging        the       termination              of    the     benefits          when    agency

“remain[ed] free to reassess the [recipients’] needs and cancel

their [benefits] at any time”).                            And Kobe certainly has reason

to    be    concerned        in    light        of    the    many    problems          he    has   had

obtaining reasonably prompt responses from Appellees regarding

his allegedly often-nonfunctional wheelchair, the condition of

which      is   also     critical          to    his       quality       of    life.         In    sum,

Appellees       have     not      met    their        “heavy      burden”       of    showing      that

after this litigation has concluded, Kobe will not once again

find    himself        without       the    equipment         he    needs       and    without      any

ability to obtain it without significant delay.                                       We therefore

conclude        that    to     the      extent        Appellants         challenge      Appellees’

response to Kobe’s need for equipment, his challenges are not

mooted by Appellees’ temporary satisfaction of his needs during

the    pendency        of    this       lawsuit.            Accordingly,         we    vacate       the

district        court’s        order       granting           summary          judgment      against

Appellants       on     justiciability               grounds,      and    remand       for   further

proceedings consistent with this opinion.

       In    addition        to   arguing        that       this    case       presented      a    live

controversy, Appellants contend that the district court erred in

failing to explain its decision not to address the merits of

                                                     39
several of their claims.                  Indeed, the district court did not

explain         in     any      detail     how         its     conclusions       regarding

justiciability justified granting summary judgment on each of

Appellants’ first seven claims.                      Because we hold that this case

in fact continues to present justiciable issues, we vacate the

grant      of   summary       judgment     against          Appellants    on   Counts   One

through      Seven     and    remand      to    the    district     court      for   further

consideration of the viability of each of Appellants’ claims

against each of the Appellees.                   To the extent that the district

court      concludes     on     remand    that        any    particular    Appellees     are

entitled to prevail as a matter of law on any particular claims,

the court should fully explain its analysis. 24

                                               III.

      We now turn to Appellants’ argument that the district court

erred in dismissing the official-capacity claims against several

of   the    BCB       Members    –   Governor         Haley,    Leatherman,      Eckstrom,

Chellis,        and    Cooper    –   on    the        basis    of   Eleventh     Amendment

immunity. 25




      24We express no view on any issue not addressed in this
opinion, whether related to justiciability or otherwise.
      25Appellants do not appeal the dismissal of Loftis, White,
or Sanford.




                                                40
      The Eleventh Amendment to the United States Constitution

provides:     “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted        against    one    of   the    United   States    by    Citizens   of

another State, or by Citizens or Subjects of any Foreign State.”

Eleventh Amendment immunity protects unwilling states from suit

in federal court.           See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 70 (1989); Edelman v. Jordan, 415 U.S. 651, 662–63

(1974). 26    “State officers acting in their official capacity are

also entitled to Eleventh Amendment protection, because ‘a suit

against a state official in his or her official capacity is not

a suit against the official but rather is a suit against the

official’s office.’”              Lytle v. Griffith, 240 F.3d 404, 408 (4th

Cir. 2001) (quoting Will, 491 U.S. at 71).

      The Supreme Court, however, delineated an exception to the

application of the Eleventh Amendment in Ex parte Young.                          That

exception     “permits        a     federal     court    to   issue     prospective,

injunctive relief against a state officer to prevent ongoing

violations of federal law, on the rationale that such a suit is

not   a    suit    against    the     state     for   purposes    of    the   Eleventh

      26Although the language of the Eleventh Amendment does not
explicitly apply to suits brought against a state by one of its
own citizens, the Amendment has been construed to bar such
suits.   See Equity in Athletics, Inc. v. Department of Educ.,
639 F.3d 91, 107 n.12 (4th Cir. 2011).



                                           41
Amendment.”     McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.

2010).     “Ex parte Young requires a ‘special relation’ between

the state officer sued and the challenged [provision] to avoid

the Eleventh Amendment’s bar.”                      Waste Mgmt. Holdings, Inc. v.

Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (quoting Ex Parte

Young, 209 U.S. at 157); see also DeBauche v. Trani, 191 F.3d

499, 505 (4th Cir. 1999) (explaining that the Ex Parte Young

exception “applies only when there is an ongoing violation of

federal law that can be cured by prospective relief”).                                   This

requirement    “protects        a    state’s          Eleventh     Amendment     immunity

while, at the same time, ensuring that, in the event a plaintiff

sues   a   state     official       in    his       individual    capacity     to    enjoin

unconstitutional        action,          any        federal      injunction      will     be

effective with respect to the underlying claim.”                          McBurney, 616

F.3d at 399 (alteration and internal quotation marks omitted).

       Here,   the    district           court      concluded     that    none      of   the

prospective relief Appellants sought from the BCB Members fit

within the Ex Parte Young exception because these defendants had

no “control or enforcement rights over any agency regarding the

Plaintiffs’    ADHC     or   other         Medicaid      services”       and   thus      that

“impos[ing] a prospective injunction on [Loftis and White] would

have no effect whatsoever.”                    J.A. 1136; see J.A. 1134 (“[T]o

impose a prospective injunction on Governor Haley to cure any

alleged Medicaid violations would have no effect.”); J.A. 1136

                                               42
(“Plaintiffs         would     not     be    able    to      obtain      any   prospective

injunctive relief from Defendant Cooper in his official capacity

as he is no longer a member of the [BCB] and would have no

authority      to      provide       such    relief.”);        J.A.     1140    (“Defendant

Chellis      is        not    involved       in     any        ongoing     constitutional

deprivations         and     could     not    provide      Plaintiffs,         should      they

prevail, with the prospective injunctive relief they seek.”);

J.A.    2372      (“Plaintiffs         would       not    be     able    to    obtain      any

prospective injunctive relief from [Leatherman and Eckstrom] in

their official capacities as they would not have any control or

enforcement       rights      over     any   agency       regarding      the    Plaintiffs’

ADHC    or     other       Medicaid     services.”).             Appellants        offer    no

specific challenge to the district court’s conclusions regarding

Leatherman, Eckstrom, Chellis, and Cooper.                            And, especially in

light   of     the     fact   that     the    BCB    is    now    abolished,       with     its

responsibilities having been transferred to the Governor, there

would be no basis to challenge the court’s conclusion regarding

these Appellees.

       However,        Appellants       do    challenge         the     district     court’s

analysis concerning Governor Haley.                       In arguing that Governor

Haley bears the necessary relationship to the ongoing violations

they allege, they note that Appellees “have refused to restore

service levels of waiver participants to the pre-2010 level, . .

.   refused       to    pay    for     Kobe’s       speech      services,      refused      to

                                              43
acknowledge Kobe’s right under the Medicaid Act and ADA to a

speech device and have refused to provide funding for Kobe to

live outside of a congregate setting.”                        Appellants’ brief at 35.

What Appellants fail to appreciate, however, is that Governor

Haley     is     not     an    official        with        responsibility          for     these

decisions,       nor    does    she     have       the     authority       to    change    them.

South Carolina has designated DHHS to administer and supervise

Medicaid.        See S.C. Code § 44-6-30; see also 42 C.F.R. § 431.10

(providing       that    each    state’s       Medicaid           plan    must    designate      a

single state agency to administer the Medicaid plan).                                   And DHHS

“may     not   delegate,        to    other         than     its     own     officials,        the

authority to supervise the plan or to develop or issue policies,

rules,     and     regulations          on     program        matters.”            42     C.F.R.

§ 431.10(e).        Although Governor Haley appoints DHHS’s Director,

see     S.C.   Code      § 44-6-10,          she     has     no     direct       authority      to

administer       South    Carolina’s          Medicaid        plans;       rather,       she    is

limited to reviewing and commenting on proposed plans, see 42

C.F.R. § 430.12(b).

       In arguing that injunctive relief against Governor Haley

could    nevertheless          remedy    the        ongoing        violations       that     they

allege, Appellants argue that Governor Haley “is the single most

influential individual in the State with the power to influence

the General Assembly to establish a budget and to promulgate

regulations        to     bring       DDSN         and      DHHS         into     compliance.”

                                               44
Appellants’ brief at 36.                But the fact that a governor, by

virtue of her office, may have political influence over those

who    are     responsible      for     ongoing     violations       and   have      the

authority to end them does not give the governor the “special

relation” needed to make her a proper defendant under Ex Parte

Young.        Cf. Waste Mgmt. Holdings, 252 F.3d at 331 (“The fact

that     [a    governor]      has    publicly      endorsed    and     defended      the

challenged statutes does not alter our analysis [holding that

the governor lacks the special relation required under Ex Parte

Young to be sued regarding the statutes].).                          Rather, a more

direct connection is required.                    The district court therefore

properly ruled that Appellants’ claims against Governor Haley

did not fit within the Ex Parte Young exception.

       Appellants      next    assert    that     regardless    of    whether     their

claims fit within Ex Parte Young, Governor Haley, Leatherman,

Eckstrom, Chellis, and Cooper were not entitled to be dismissed

regarding      Counts    One   and    Two    on    Eleventh    Amendment    grounds.

Concerning Count One, Appellants contend that Congress validly

abrogated      South    Carolina’s      Eleventh     Amendment       immunity   as    to

claims alleging violations of Title II of the ADA.                      As for Count

Two, Appellants argue that South Carolina waived its Eleventh




                                            45
Amendment immunity by accepting federal financial assistance for

its Medicaid program.        We address these arguments in turn. 27

     In their initial brief to us, Appellants argued that the

district court erred in dismissing Count One as against these

Appellees    on   Eleventh    Amendment    immunity   grounds,      maintaining

that Congress validly abrogated the States’ Eleventh Amendment

immunity for claims alleging a violation of Title II of the ADA.

Appellants relied on our decision in Constantine v. Rectors,

George Mason Univ., 411 F.3d 474, 486 (4th Cir. 2005), holding

that “the accommodation requirement of Title II, as it applies

to   cases   involving       the   administration     of   higher     education

programs, represents a congruent and proportional response to a



     27 Although Appellants opposed dismissal of these Appellees
Eleventh Amendment immunity grounds, it does not appear that
they specifically argued that Congress validly abrogated the
States’ immunity with regard to the ADA claim or that South
Carolina waived immunity to Rehabilitation Act claims by virtue
of accepting Medicaid funds.    Rather, Appellants focused their
Eleventh-Amendment arguments on the application of the Ex Parte
Young exception.    Nevertheless, Appellees do not assert that
Plaintiffs have waived these arguments by failing to raise them
earlier. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”); Dan Ryan Bldrs., Inc. v. Crystal Ridge Dev., Inc., 783
F.3d 976, 980 (4th Cir. 2015) (“[T]he Supreme Court has long
recognized that a court may consider an issue antecedent to and
ultimately dispositive of the dispute before it, even an issue
the parties fail to identify and brief.” (alteration and
internal quotation marks omitted)).



                                      46
history        and       pattern           of         unconstitutional          disability

discrimination by States and nonstate government entities.”                                See

also id. at 484-90.               They also drew support from the Supreme

Court’s    decision      in      Tennessee       v.    Lane,    541    U.S.    509,    533-34

(2004), which held that “Title II, as it applies to the class of

cases implicating the fundamental right of access to the courts,

constitutes     a    valid       exercise       of     Congress’      § 5     authority     to

enforce the guarantees of the Fourth Amendment.”

       In their initial brief, Appellees denied that Constantine

and     Lane    conclusively          demonstrated          that       Congress       validly

abrogated the States’ immunity for the type of claim at issue

here.     See Appellees’ Brief at 36 (Constantine “holds only that

Title     II   of    the      ADA    validly          abrogated    Eleventh       Amendment

immunity ‘as it applies to public higher education.’”) (quoting

Constantine, 411 F.3d at 490)).                      Notwithstanding their argument

that    Constantine        and      Lane   did       not   conclusively        resolve     the

abrogation issue, Appellees offered no argument that Congress

had not in fact validly abrogated the States’ Eleventh Amendment

immunity.

       Additionally, in their initial briefs to us, neither party

discussed or even cited the Supreme Court’s decision in United

States v. Georgia, 546 U.S. 151 (2006).                        In Georgia, the Supreme

Court noted that in prior decisions the Court had been split

regarding      whether      Congress       had       the   power      under    § 5    of   the

                                                47
Fourteenth Amendment to abrogate states’ sovereign immunity for

conduct that did not actually violate the Constitution.                 See id.

at 158-59.     The Georgia Court specifically held that “insofar as

Title II creates a private cause of action for damages against

the States for conduct that actually violates the Fourteenth

Amendment, Title II validly abrogates state sovereign immunity.”

Id.   at    159.     To   give   guidance    to   lower   courts   determining

whether the Eleventh Amendment bars an ADA Title II claim, the

Supreme Court provided a three-part test:

      [D]etermine . . . on a claim-by-claim basis, (1) which
      aspects of the State’s alleged conduct violated Title
      II; (2) to what extent such misconduct also violated
      the Fourteenth Amendment; and (3) insofar as such
      misconduct violated Title II but did not violate the
      Fourteenth Amendment, whether Congress’s purported
      abrogation of sovereign immunity as to that class of
      conduct is nevertheless valid.

Id.; see Babcock v. Michigan, 812 F.3d 531, 534-35 (6th Cir.

2016); see also Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439, 445 (1988) (It is a “fundamental and longstanding

principle of judicial restraint . . . that courts avoid reaching

constitutional questions in advance of the necessity of deciding

them.”); Lors v. Dean, 746 F.3d 857, 864 (8th Cir. 2014) (noting

that “the constitutional question of whether Title V of the ADA

was   a    valid   abrogation    of   sovereign   immunity   may   be   avoided

altogether if the district court correctly determined that the




                                        48
[ADA] claim fails on the merits”). 28                   Because neither the parties

nor the district court had addressed Georgia in their briefs, we

requested that the parties file supplemental briefs explaining

the impact of Georgia on the present case.

       In    their       supplemental      brief,       Appellants      suggest       that    in

light       of    the    district      court’s      failure     to    apply    the    Georgia

framework,         “their    claims      for     injunctive          relief    and    damages

should be reassessed by the district court, with instructions to

apply the test set forth in Georgia, except for those claims

which [the Fourth Circuit] may elect to grant summary judgment

in favor of the plaintiffs.”                     Appellants’ Supp. Brief at 15.

Appellees, in their supplemental brief, do not deny that the

Georgia framework governs the analysis of the abrogation issue

to the extent that Appellants assert a claim for money damages.

Nor do they explain how that analysis should apply to the facts

of    this       case.     They     contend      that    Georgia      cannot    affect       the

outcome      of     this    appeal     because      none   of    the    claims       here    are

justiciable – an argument we have now rejected – and because any

ADA    liability         would    be    duplicative        of    liability       under       the




       28
        Although Eleventh Amendment immunity is designed “to
protect the State from being subject to suit at all[,] the
Georgia protocol may require the State to defend litigation
before obtaining a ruling on immunity.” Buchanan v. Maine, 469
F.3d 158, 172 n.8 (1st Cir. 2006).



                                               49
Rehabilitation         Act    to     the     extent      that       Eleventh       Amendment

immunity is not available.

     In   light    of        the   existence        of   the    unresolved         issue   of

whether   Congress       has       validly    abrogated        the    States’       Eleventh

Amendment    immunity        for    Title    II     claims     of    the    type    asserted

here, we hold that dismissing Count One on Eleventh Amendment

grounds, without utilizing the Georgia framework, was premature.

Particularly     since       Appellees       have    not     yet     made   any     argument

regarding how the Georgia framework would apply to the facts

before us, we decline to apply Georgia in the first instance.

     Appellees also argue that regardless of whether Congress

validly abrogated South Carolina’s Eleventh Amendment immunity

regarding the type of claim asserted in Count One, we should

affirm the dismissal of the BCB Members in light of the fact

that no effective prospective relief was available as against

these Appellees – as we have already discussed – and because

Appellants      have     abandoned         any    claims       for    damages       asserted

against these Appellees.

     We agree that Appellants abandoned any claim for damages in

regard to their claims against Leatherman, Eckstrom, Chellis,

and Cooper when they submitted memoranda to the district court

explicitly representing that they were not seeking damages from

them.     See    J.A.    1086       (“All    of   the    relief       requested      by    the

Plaintiffs as to Defendant Cooper is prospective.”); J.A. 1115

                                             50
(“Only     prospective      relief,    and      attorneys    fees,   are    requested

from [Chellis].”); J.A. 2240 (“[T]he only relief [Appellants]

request from [Leatherman and Eckstrom] is injunctive relief.”).

We therefore affirm the dismissal of Counts One and Two against

these Appellees – the individual-capacity claims as well as the

official-capacity claims – on this basis.

       We do not agree, however, that Appellants have abandoned

their claims for money damages against Governor Haley (in her

official     capacity).         In   her   memoranda    to    the    district   court

supporting her motion to dismiss, Governor Haley suggested that

Appellants were seeking money damages in their claims against

her.       See J.A. 290 (“If a plaintiff seeks only retrospective

relief (such as monetary damages), then Ex Parte Young is not an

available means of bringing suit against the state official.”).

It    is   true    that    Appellants’       primary   response      was    that   the

prospective relief fit within the Ex Parte Young requirements.

But    unlike     they    did   with   regard     to   the   other    BCB   Members,

Appellants did not specifically deny Governor Haley’s contention

that they sought retrospective relief as well.                         Indeed, they

argued that Governor Haley could be liable for the past actions

of others, suggesting that at least part of the relief they were

claiming was retrospective.                See, e.g., J.A. 387 (“Plaintiffs

have presented evidence that Haley and her predecessor, Mark

Sanford, had actual or, at least constructive, knowledge of the

                                           51
violations      alleged     in     the    amended       complaint.”).            On   reply,

Appellees      argued    that      Appellants        had    “failed       to   present      any

opposition” to the argument that they did not seek injunctive

relief against Governor Haley except with regard to Count Six.

J.A. 717.

       In   further      support         of    their       abandonment         proposition,

Appellees point to a statement by Appellants’ counsel, made to

the    district     court     on    September        23,    2014,     that      Appellants’

lawsuit     was    not    requesting          damages      other    than       against     the

Babcock     Center.         As     Appellants         point    out,        however,        this

statement was made well after Governor Haley – and the other BCB

Members – had been dismissed.                   And at oral argument before us

Appellants’ counsel denied that her statement was intended to

encompass the claims asserted against the BCB Members.                                In our

view, counsel’s ambiguous statement made at the summary-judgment

hearing is simply not clear enough to constitute an abandonment

of Appellants’ damage claims asserted against Governor Haley in

her official capacity.             See Doe v. Kidd, 501 F.3d 348, 354 (4th

Cir.   2007)      (“Federal      law     is   well-settled         that    waiver     is    the

voluntary and intentional relinquishment of a known right, and

courts have been disinclined lightly to presume that valuable

rights have been conceded in the absence of clear evidence to

the    contrary.”        (alteration           and     internal       quotation          marks

omitted)).        Cf. Santos v. Frederick Cty. Bd. Of Comm’rs, 725

                                              52
F.3d 451, 463 (4th Cir. 2013) (holding that counsel’s ambiguous

statement during argument on summary judgment motion did not

constitute waiver); Feikema v. Texaco, Inc., 16 F.3d 1408, 1417

(4th Cir. 1994) (holding no waiver of claim for damages when,

although “[t]he principal aim” of the arguments opposing the

motion to dismiss were directed at “whether they could obtain

injunctive relief,” the record was ambiguous regarding whether

they intended to continue to pursue a damages claim).                               We thus

decline to affirm the dismissal of Count One as against the

Governor    in    her     official       capacity      on    this     basis   but    rather

vacate the dismissal of that count against the Governor.

       Regarding Count Two, Appellants maintain that states waive

Eleventh    Amendment       immunity       against      suit    under      § 504    of    the

Rehabilitation Act by accepting federal financial assistance, as

South     Carolina       did     here     with      regard     to     Medicaid.           See

Constantine, 411 F.3d at 490-96.                    For their part, Appellees do

not     dispute    that        South    Carolina       has     waived      any     Eleventh

Amendment immunity regarding Count Two, but they argue that the

district    court       properly       ruled    that   the     BCB    Members      were   not

named as defendants in Count Two.                   See Appellees’ brief at 36-37

(“States do waive their Eleventh Amendment immunity under the

Rehabilitation Act by accepting funds, see Constantine, 411 F.3d

at    490-96,     but    Plaintiffs’       Rehabilitation            Act   claim    is    not

asserted against any of the BCB Members.”).                          We do not read the

                                               53
district court opinions as reaching that conclusion, however.

It is true that in the parts of the district court’s opinions

describing the different counts in the complaint, the district

court did not identify the BCB Members as defendants.                        Later in

its opinions, though, the court appeared to recognize that Count

Two named the BCB Members.                See J.A. 1135 (noting that those

“who were members of the [BCB]” were named as defendants in

Count Two); J.A. 2371 (noting that Leatherman and Eckstrom were

named as defendants in Count Two).                In any event, review of the

amended    complaint      shows    that    the    BCB   Members    were    among    the

defendants as to Count Two.               See J.A. 225 (allegation in Count

Two of amended complaint that BCB “failed to insure that the

funds   allocated    to    [DDSN]     were      spent   as    appropriated    by    the

General Assembly to provide services, despite warnings from the

South     Carolina   Legislative          Audit    Council      that      [DDSN]   was

spending    those    funds        improperly      for   the     purchase     of    real

estate”).       We therefore vacate the dismissal of Governor Haley

as a defendant regarding Count Two.

                                          IV.

     In sum, for the foregoing reasons, we vacate the district

court   order    granting     summary      judgment      against    Appellants       on

Counts One through Seven on justiciability grounds, and remand

for further proceedings consistent with this opinion.                        We also

vacate the district court order to the extent that it dismisses

                                          54
Counts     One   and   Two   against   Governor   Haley   on   the   basis   of

Eleventh Amendment immunity.           However, we affirm the dismissal

of   the     official-       and   individual-capacity     claims     against

Leatherman, Eckstrom, Chellis, and Cooper.

                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




                                       55
