UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1441

D.T.M., a minor child, by his mother Penny McCartney; E.C., 

a minor child, by his mother Selena McMillan; K.T., a minor 

child, by her father, Greg Tipton, individually and on 

behalf of all others similarly situated,

Plaintiffs - Appellees,

v.

LANIER M. CANSLER, Secretary of North Carolina Department of 

Health and Human Services, in his official capacity,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Malcolm J. Howard, 

Senior District Judge. (7:08-cv-00057-H)

Argued: May 13, 2010 Decided: June 11, 2010

Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and 

Samuel G. WILSON, United States District Judge for the Western 

District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Ronald Moore Marquette, NORTH CAROLINA DEPARTMENT OF 

JUSTICE, Raleigh, North Carolina, for Appellant. Douglas Stuart 

Sea, LEGAL SERVICES OF SOUTHERN PIEDMONT, INC., Charlotte, North 

Carolina, for Appellees. ON BRIEF: Roy Cooper, North Carolina 

Attorney General, Belinda A. Smith, Special Deputy Attorney 

General, Tracy J. Hayes, Assistant Attorney General, NORTH 
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CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for 

Appellant. Jane Perkins, Sarah Jane Somers, NATIONAL HEALTH LAW 

PROGRAM, Chapel Hill, North Carolina, for Appellees. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Lanier Cansler, the Secretary of the North Carolina 

Department of Health and Human Services (“HHS”), appeals the 

denial of his motion to dismiss this suit alleging that HHS has 

reduced or terminated Medicaid benefits received by plaintiffs 

and others in violation of the Due Process Clause and the 

Medicaid Act. The Secretary primarily argues that he is 

entitled to Eleventh Amendment immunity. Finding no error, we 

affirm.

I.

Medicaid is a cooperative federal-state program that 

assists states in providing medical services to the needy. 

States need not participate in Medicaid, but once they choose to 

do so, they must implement plans for providing medical 

assistance that comply with detailed federal standards. See 42 

U.S.C.A. § 1396a (West 2003 & Supp. 2009). As is relevant here, 

state plans are required to “provide for granting an opportunity 

for a fair hearing . . . to any individual whose claim for 

medical assistance . . . is denied or is not acted upon with 

reasonable promptness.” 42 U.S.C.A. § 1396a(a)(3). The state 

plans also must contain reasonable standards for determining 

individuals’ eligibility. See 42 U.S.C.A. § 1396a(a)(17). In 

Medicaid parlance, “medical assistance” means payment of part or 
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all of the cost of care and services or provision of the 

services themselves. See 42 U.S.C. § 1396d(a), as amended by 

the Patient Protection and Affordable Care Act, Pub. L. No. 111-

148, § 2304, 124 Stat. 119, 296 (Mar. 23, 2010). These services 

generally include “health care, diagnostic services, treatment, 

and other measures . . . to correct or ameliorate defects and 

physical and mental illnesses” in children. 42 U.S.C.A. § 

1396d(r)(5) (West Supp. 2009). 

HHS is the state agency responsible for administering 

Medicaid programs in North Carolina. See 42 U.S.C.A. § 

1396a(a)(5). In approximately 2006, HHS contracted with 

ValueOptions, Inc. (“VO”), to be HHS’s statewide agent to 

administer behavioral health and developmental disability 

services for North Carolina’s Medicaid program. The three 

plaintiffs in this action are children who have been denied the 

level of medical assistance that they requested. North Carolina 

requires preauthorization for medical assistance of the type 

Plaintiffs sought. See 42 C.F.R. § 440.230(d) (2008) (providing 

that states “may place appropriate limits on a service based on 

. . . utilization control procedures”). If a preauthorization 

request is granted, Medicaid pays for the service for a certain 

length of time—90 days for Community Support Services and one 

year for the Community Alternatives Program for persons with 

mental retardation/developmental disabilities. An applicant may 
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appeal an adverse decision to the North Carolina Office of 

Administrative Hearings (“OAH”), with or without first appealing 

informally to the HHS hearing office. During the pendency of a 

timely filed appeal, North Carolina authorizes the provision of 

services at the existing level of care.

Plaintiffs brought this suit under 42 U.S.C.A. § 1983 (West 

2003), alleging that HHS violated their rights under the 

Medicaid Act and the Due Process Clause of the Fourteenth 

Amendment by arbitrarily and capriciously denying their requests 

for services, terminating or reducing their benefits without 

providing timely and adequate written notice and a fair hearing, 

and failing to ensure that their benefits continued while their 

appeals were pending. Plaintiffs’ complaint requests 

declaratory relief as well as an order enjoining the Secretary, 

his agents, successors, and employees to 

(a) continue to provide behavioral health and 

developmental disability services to all persons who 

have been receiving them, until Defendant corrects the 

practices and procedures alleged herein;

(b) prospectively reinstate behavioral health and 

developmental disability services previously provided 

to the named Plaintiffs and members of the Plaintiff 

class that were improperly reduced or terminated under 

the illegal practices and procedures alleged herein; 

[and]

(c) comply with the Due Process Clause of the 

U.S. Constitution and the Medicaid Act.

J.A. 40. 
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After filing suit, Plaintiffs filed a motion in the 

district court to certify this suit as a class action. The 

Secretary opposed class certification and moved to dismiss for 

lack of subject-matter jurisdiction and for failure to state a 

claim upon which relief can be granted. See Fed. R. Civ. P. 

12(b)(1), (6). Regarding subject-matter jurisdiction, the 

Secretary argued that he was entitled to Eleventh Amendment 

immunity, that the Plaintiffs lacked standing, and that the 

action had become moot. He also sought to dismiss because 

abstention under Younger v. Harris, 401 U.S. 37 (1971), was 

appropriate. The district court denied the motion to dismiss 

and denied the class-certification motion without prejudice to 

Plaintiffs’ right to refile the motion after further discovery. 

II.

On appeal, the Secretary argues that the district court 

erred in not dismissing the suit based on Eleventh Amendment 

immunity.*

A district court order denying a motion to dismiss on the 

ground of Eleventh Amendment immunity is immediately appealable. 

 We disagree.

 * The Secretary also maintains that the Plaintiffs lacked 

standing when they initiated this suit, and, alternatively, that 

the suit has become moot since it was filed. We decline to 

address those issues at this time. See Antrican v. Odom, 290 

F.3d 178, 191 (4th Cir. 2002).
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See Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002). We 

review such an order de novo. See CSX Transp., Inc. v. Bd. of 

Pub. Works, 138 F.3d 537, 541 (4th Cir. 1998).

Although the Eleventh Amendment generally bars individual 

suits against non-consenting states and state officers, an 

exception exists under the doctrine of Ex parte Young, 209 U.S. 

123 (1908), for official capacity suits requesting prospective 

relief to achieve the officials’ compliance with federal law. 

See Litman v. George Mason Univ., 186 F.3d 544, 549-50 (4th Cir. 

1999). In such a case, a federal court may enjoin a state 

officer from engaging in future conduct in violation of federal 

law. See Antrican, 290 F.3d at 184. In determining whether the 

Ex parte Young exception applies, “a court need only conduct a 

‘straightforward inquiry into whether the complaint alleges an 

ongoing violation of federal law and seeks relief properly 

characterized as prospective.’” Verizon Md. Inc. v. Pub. Serv. 

Comm’n, 535 U.S. 635, 645 (2002) (alteration omitted).

The Secretary asserts three arguments against application 

of Ex parte Young: that Plaintiffs seek a compensatory, 

monetary remedy against the state rather than prospective relief 

against him; that Plaintiffs have not alleged an ongoing 

violation of federal law; and that the Secretary is not an 

appropriate party. We will address these arguments seriatim.
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A.

In arguing that Plaintiffs do not seek prospective relief, 

the Secretary focuses on one part of the relief requested in the 

amended complaint, that being Plaintiffs’ request to enjoin him, 

his agents, successors, and employees to prospectively reinstate 

services to the named Plaintiffs. However, the request for 

prospective reinstatement of benefits is precisely the type of 

relief that we recognized in Kimble v. Solomon, 599 F.2d 599, 

605 (4th Cir. 1979), that plaintiffs may seek consistent with 

the Eleventh Amendment when they allege a state Medicaid 

agency’s reduction of their benefits violated federal law. The 

Secretary argues that the facts alleged in the complaint do not 

legally entitle Plaintiffs to prospective reinstatement of 

benefits since the benefits allegedly denied were for a discrete 

period in the past. However, even assuming arguendo that the 

Secretary is correct on this point, the fact that Plaintiffs 

cannot prove entitlement to the prospective relief they seek 

does not mean that the relief they seek is not prospective. See

Verizon, 535 U.S. at 646 (“[T]he inquiry into whether suit lies 

under Ex parte Young does not include an analysis of the merits 

of the claim.”). And, in any event, even if the prospective 

reinstatement of benefits—the remedy on which the Secretary has 

focused—were not a prospective remedy, injunctive relief from 
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the continuation of HHS’s allegedly illegal practices would be, 

and the Ex parte Young exception would apply.

B.

The Secretary’s second argument, that Plaintiffs have not 

alleged an ongoing violation of federal law, is also a meritsbased argument dressed in Eleventh Amendment clothing. The 

Secretary argues that to determine whether Plaintiffs allege an 

ongoing violation for Ex parte Young purposes, “this Court must 

determine what pre-deprivation and post-deprivation process is 

provided and whether it is constitutionally adequate.” Brief of 

Appellant, at 45. However, to fall within the Ex parte Young

exception, it is sufficient for Plaintiffs’ suit to allege an 

ongoing violation of federal law; actually proving such an 

ongoing violation is unnecessary. See Verizon, 535 U.S. at 646; 

Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 

(9th Cir. 2007); Deposit Ins. Agency v. Superintendent of Banks 

(In re Deposit Ins. Agency), 482 F.3d 612, 621 (2d Cir. 2007); 

McCarthy v. Hawkins, 381 F.3d 407, 415-17 (5th Cir. 2004).

C.

The Secretary finally maintains that his status as the 

official responsible for administering North Carolina’s Medicaid 

program is not a sufficient connection to the complained-of 

actions to justify applying the Ex parte Young exception to him. 

We disagree. 
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The complaint makes clear that it is challenging the 

practices of the public agency. The Secretary, as the person 

responsible for assuring that the agency’s decisions comply with 

federal law, was properly named as the defendant. See Ogden v. 

United States, 758 F.2d 1168, 1177 (7th Cir. 1985) (“[W]here 

injunctive, as opposed to monetary relief is sought, no ‘direct 

and personal’ involvement is required in order to hold highlevel officials responsible for the actions of subordinates and 

to subject them to the equitable jurisdiction of the court.”). 

And, the Ex parte Young exception was therefore properly applied 

to him. See Antrican, 290 F.3d at 188-89 (holding Ex parte 

Young exception was properly applied to state officials 

overseeing the North Carolina Medicaid program in suit alleging 

wrongful denial of Medicaid services).

III.

In sum, because we conclude that the district court 

properly ruled that the Secretary was not entitled to Eleventh 

Amendment immunity, we affirm.

AFFIRMED