UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

Jody Burtsell

v. Civil No. 1:08-cv-455-JL

Nicholas A. Toumpas, Commissioner,

New Hampshire Department of Health

and Human Services

MEMORANDUM ORDER

This controversy concerns the proper allocation of a

personal injury settlement between an injured Medicaid

beneficiary and a state Medicaid payor in light of the Supreme

Court’s decision in Arkansas Department of Health & Human

Services v. Ahlborn, 547 U.S. 268 (2006), and the New Hampshire

statute that establishes a Medicaid payor’s claim against such a

settlement as well as a procedure for apportioning it, N.H. Rev.

Stat. Ann. §§ 167:14-a, II-IV. After settling his medical 1

malpractice claim against third parties, the plaintiff, Jody

Burtsell, filed this action for declaratory and injunctive

relief, asserting that the defendant, the New Hampshire

Department of Health and Human Services (“HHS”), has demanded

recovery from the settlement for Medicaid expenditures it made on

These statutes were amended during the pendency of this 1

litigation. See 2010 N.H. Laws, Ch. 15 (H.B. 577) (effective

May 7, 2010), but the parties agree that the amended version of

the statute controls so far as is relevant here.

Case 1:08-cv-00455-JL Document 49 Filed 05/10/12 Page 1 of 42
his behalf in excess of that permitted under federal Medicaid law

or the New Hampshire statute.

As this court has already determined, it has subject-matter

jurisdiction under 28 U.S.C. § 1331 (federal question). See

Burtsell v. Toumpas, 2009 DNH 069. After the parties cross-moved

for summary judgment, see Fed. R. Civ. P. 56, the court conducted

oral argument, together with an evidentiary hearing, on the

issues raised in the motions, as well as in requests for findings

of fact and rulings of law submitted at the court’s direction. 

In a subsequent margin order, the court denied the cross-motions

without prejudice, explaining that it would address the parties’

arguments in a comprehensive order resolving all of the issues in

the case.2

For the reasons explained fully infra, the court rejects

Burtsell’s argument that federal law preempts the New Hampshire

statute giving HHS a claim against his settlement, and also

rejects HHS’s arguments that it is entitled to reimbursement of

its Medicaid expenditures in full. Instead, based on those

rulings and the evidence presented at the hearing, the court

makes an equitable apportionment to HHS in the sum of $53,124.61

in accordance with N.H. Rev. Stat. Ann. § 167:14-a, IV. The

This order constitutes this court’s findings of fact and 2

rulings of law in this matter. See Fed. R. Civ. P. 52(a).

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court also concludes that Burtsell is entitled to recover his

reasonable attorneys’ fees in this matter under 42 U.S.C. § 1988.

I. Background

A. Factual background

This case arises from a medical malpractice action Burtsell

filed in New Hampshire Superior Court in January 2007. In that

action, Burtsell claimed to have suffered severe injuries and

permanent disability from botched ulcer surgery at a New

Hampshire hospital in November 2004. In June 2007, after the

suit was filed, HHS received a fax from a paralegal working for

Burtsell, stating that he “was the victim of medical malpractice”

and asking whether HHS held any “liens for medical benefits paid

on behalf of [] Burtsell which are directly related to the

medical malpractice.” The paralegal then had a series of

telephone conversations with an HHS representative about the

amount of Medicaid expenditures made on Burtsell’s behalf. 

On June 3, 2008, the parties to the malpractice action

participated in a mediation session. It is undisputed that HHS

received no prior notice of this session. Prior to the session,

Burtsell, through counsel, submitted a summary to the mediator,

claiming medical expenses (up until that time) in the amount of

$628,548.07, as well as future medical expenses in the amount of

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$148,614. The summary also claimed lost wages in the amount of

$1.327 million, asserting, in essence, that Burtsell’s medical

injury had permanently disabled him from any meaningful

employment. Based on these figures, Burtsell’s mediation summary

demanded $2.6 million.

While the mediation session ended without a settlement,

counsel for both parties continued to negotiate. On June 10,

2008, counsel for Burtsell in the malpractice action sent a

letter to HHS, stating that “current records indicate that the

amount of the Medicaid lien is $75,892.30” but asking HHS to

“accept 30% of [this] outstanding balance to resolve [its]

interest in the case.” The letter noted that counsel was “doing

[his] best to put together [a] settlement.”

By mid-June--and before Burtsell’s counsel received any

response from HHS--the parties to the medical malpractice action

agreed to a settlement in the lump sum of $850,000. On June 23,

2008, Burtsell’s counsel sent a letter to HHS informing it of

this development, and also that counsel had reduced his fees by

$25,000 “[t]o facilitate this settlement.” This letter asked HHS

to reduce its lien by 50 percent.

Burtsell’s counsel subsequently sent a letter to his client

explaining that only $419,507.32 of the $850,000 “gross

settlement” was being disbursed to him. The letter explained

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that one-third of the gross settlement--less the $25,000

reduction--i.e., $258,050, was being used to pay counsel’s fees,

while approximately $32,000 was being used to reimburse counsel

for costs. The letter further explained that another $140,641.41

would be held in escrow pending resolution of various third-party

liens on the settlement, some of which counsel was still

“try[ing] to negotiate downward.”

In the meantime, on July 3, 2008, HHS sent Burtsell’s

counsel a “counteroffer” to settle its Medicaid lien for $70,000,

as opposed to the full amount of $75,892.30. This small

reduction, the letter explained, reflected the fact that counsel

for Burtsell had reduced his own fees, as well as “the litigation

costs involved if this matter reached the ‘Petition for Equitable

Apportionment’ stage.” The letter further explained that there

“was not much room for compromise” on HHS’s lien because, among

other things, the portion of the settlement “reasonably

attributable to past medical expenses . . . is sufficient to

discharge the lien in full.” The letter also noted that HHS had

not received the “required notice” of “any scheduled trial,

alternative dispute resolution hearing, or settlement,” and,

therefore, “reserve[d] the right to claim prejudice. For

example, because notice was not provided, [HHS] was not able to

participate in the mediation.” 

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Burtsell eventually resolved the liens against the

settlement held by the other third parties who had paid for or

furnished him the medical care necessitated by the alleged

malpractice, including a private insurer, Medicare, and a thirdparty hospital. Each of these parties accepted substantially

less than the amount of its lien. Specifically:

•the private insurer accepted $62,256.75 in settlement

of its lien of $88,938.12 (a discount of 30 percent);

•Medicare accepted $60.34 in settlement of its lien of

$202.12 (a discount of 70 percent); and

•the third-party hospital accepted $1,955.02 in

settlement of its lien of $3,910.33 (a discount of 50

percent).

HHS, however, continued to demand payment of the entire amount it

had paid, through its Medicaid program, as a result of Burtsell’s

injury--again, $75,892.30.

That prompted Burtsell to file this action. He asserts that

HHS’s “failure and refusal to limit the recovery of Medicaid

benefits to that part of the third-party settlement attributable

to the recovery of medical costs violates” the anti-assignment

and anti-lien provisions of the federal Medicaid statute, 42

U.S.C. §§ 1396k(a)(1)(A), 1396p(a)(1), as construed by the 

Court in Ahlborn. Burtsell also now argues (though he did not at

the outset) that these provisions pre-empt the New Hampshire

statute entitling HHS to recover its Medicaid expenditures from

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third-party settlement proceeds, N.H. Rev. Stat. Ann. § 167:14-a,

III-a. In the alternative, he invokes that statute as the basis

for an equitable apportionment of the settlement between himself

and HHS, see id. § 167:14-a, IV, that would result in HHS’s

recovery of significantly less than the full amount of its

Medicaid expenditures. HHS, for its part, advances a variety of

arguments in support of its position that it is entitled to

recover the full amount of its Medicaid expenditures on

Burtsell’s behalf.

B. Legal framework

1. Federal and state Medicaid law

The Medicaid program, established by Title XIX of the Social

Security Act, see 42 U.S.C. § 1396 et seq., is a cooperative

federal and state program providing payment for medical services

to eligible individuals and families. Ahlborn, 547 U.S. at 275. 

States that participate in the Medicaid program are reimbursed by

the federal government for a portion of the payments they make to

recipients, provided the states meet certain statutory

eligibility requirements. See id. at 275-76.

Among other things, each participating state’s plan must

require that recipients, as a condition of their own eligibility

for Medicaid, assign to the state their rights “to payment for

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medical care from any third party.” 42 U.S.C. § 1396k(a)(1)(A). 

This is generally known as the “assignment provision.” In

accordance with this requirement, the New Hampshire Medicaid

statute provides that any recipient, “by his acceptance of such

assistance, shall be deemed to have assigned any claim or right

of action against any person or party to the commissioner or

[HHS], to the extent that such assistance is furnished.” N.H.

Rev. Stat. Ann. § 167:14-a, I. 

The federal Medicaid statute requires each participating

state to have a plan enabling it to identify any third parties

liable for medical expenses funded through its Medicaid program

and to “seek reimbursement for such assistance to the extent of

such legal liability.” 42 U.S.C. § 1396a(a)(25)(B). This is

generally known as the “recovery provision.” In accordance with

this requirement, the New Hampshire Medicaid statute authorizes

the state to bring its own action against any “person or party

against whom the recipient has a legally cognizable claim for

expenses or support” to recover the amount of assistance the

state has furnished to the recipient. N.H. Rev. Stat. Ann. 

§ 167:14-a, II.

The federal Medicaid statute, however, also imposes limits

on a state’s ability to recover funds from Medicaid recipients. 

The so-called “anti-lien” provision states that “[n]o lien may be

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imposed against the property of any individual prior to his death

on account of medical assistance paid or to be paid on his behalf

under the State plan,” subject to certain exceptions not relevant

here. 42 U.S.C. § 1396p(a). To similar effect, an “antirecovery provision” states that “[n]o adjustment or recovery of

any medical assistance correctly paid on behalf of an individual

under the State plan may be made,” except, again, under

circumstances not relevant here. 42 U.S.C. § 1396p(b)(1). 

2. Ahlborn

In Ahlborn, supra, the United States Supreme Court reviewed

an Arkansas statute that imposed state liens on settlement

payments by third parties to Medicaid recipients without regard

to the proportion of the settlement representing medical costs. 

547 U.S. at 274. The Court held that this statute was pre-empted

by the anti-lien provision of the federal Medicaid statute,

explaining:

There is no question that [the state] can require an

assignment of the right, or chose in action, to receive

payments for medical care. So much is expressly

provided for by §§ 1396a(a)(25) and 1396k(a). And we

assume . . . that [the state] can also demand as a

condition of Medicaid eligibility that the recipient

“assign” in advance any payments that may constitute

reimbursement for medical costs. To the extent that

the forced assignment is expressly authorized by the

terms of §§ 1396a(a)(25) and 1396k(a), it is an

exception to the anti-lien provision. But that does

not mean that [the state] can force an assignment of,

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or place a lien on, any other portion of [a

recipient’s] property . . . . [T]he exception carved

out by §§ 1396a(a)(25) and 1396k(a) is limited to

payments for medical care. Beyond that, the anti-lien

provision applies.

Id. at 284-85 (emphasis added). After Ahlborn, then, a state’s

recovery from a third-party personal injury settlement to a

Medicaid recipient is limited to that portion of the settlement

representing medical expenses. See, e.g., Lima v. Vous, 94 Cal.

Rptr. 3d 183, 194 (Cal. Ct. App. 2009); Rathbun v. Health Net of

Ne., Inc., No. 01CV085012640S, 2009 WL 3086289, at *11 (Conn.

Super. Ct. Aug. 21, 2009); Idaho Dep’t of Health & Welfare v.

Hudelson, 196 P.3d 905, 910-11 (Idaho 2008); Lugo v. Beth Israel

Med. Ctr., 13 Misc. 3d 681, 684-85 (N.Y. Sup. Ct. 2006). 

This aspect of Ahlborn forced many states to overhaul their

approach to collecting Medicaid payouts from recipients’ personal

injury settlements. See, e.g., Doran v. Mo. Dep’t of Soc.

Servs., No. 07-cv-04158-NKL, 2008 WL 4151617, at *10 (W.D. Mo.

Sept. 2, 2008); Bolanos v. Superior Court, 87 Cal. Rptr. 3d 174,

176 (Cal. Ct. App. 2009); Harris v. City of N.Y., 16 Misc. 3d

674, 678-79 (N.Y. Sup. Ct. 2007). As one court observed, the

fundamental consequence of Ahlborn is that 

a settlement that does not distinguish between past

medical expenses and other damages must be allocated

between these two classes of recoveries. Without such

an allocation, the principle set forth in Ahlborn, that

the state cannot recover for anything other than past

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medical expenses cannot be carried into effect . . . .

In other words, an allocation between past medical and

other expenses or damages may be made by the judgment

itself. If there is no such allocation, as in

settlement, the parties must attempt to allocate; if

they cannot agree, they must turn to the court.3

Bolanos, 87 Cal. Rptr. 3d at 180.

How a court should go about allocating a personal injury

settlement between the recipient and the state, however, was not

addressed in Ahlborn. There, the parties had stipulated that: 

(1) if the federal Medicaid statute limited the state’s recovery

to only medical expenses, that recovery would be reduced in

proportion to the value of the settlement to the claim, and (2)

the value of the settlement was approximately one-sixth that of

the total claim. 547 U.S. at 274.

Relying on this, a number of courts have calculated the

reimbursement for Medicaid expenditures that a state should

receive from a personal injury settlement to a beneficiary simply

by “determin[ing] what percentage the settlement is of the

[beneficiary’s] total claim, and then apply[ing] that percentage

to the sum paid by [the state under its Medicaid program] to the

Of course, even if the beneficiary and the tortfeasor do 3

specifically designate some or all of the settlement as

compensation for non-medical expenses, that designation is not

binding on either the state or a court making an allocation

decision. See Harris, 16 Misc. 3d at 680; Lugo, 13 Misc. 3d at

688. That is not an issue here, though, because Burtsell’s

settlement was an unallocated “lump sum” payment. 

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beneficiary.” Bolanos, 87 Cal. Rptr. 3d at 181. This approach

has become known as the “Ahlborn formula.” See, e.g., Lima, 94

Cal. Rptr. 3d at 194. Expressed mathematically, the Ahlborn

formula is essentially:

 Reimbursement Due = Value of Medicaid lien x Total Settlement 

 Full Value of Claim

A number of courts have used, or endorsed the use of, the formula

in allocating personal injury settlements between Medicaid

recipients and payors. See, e.g., Lima, 94 Cal. Rptr. 3d at 195;

Hudelson, 196 P.3d at 912; Lugo, 13 Misc. 3d at 687-88.

As the parties here agree, however, using the Ahlborn

formula is not mandatory--nor is it without its potential

difficulties, as illustrated by the many disputes about how to

apply the formula in this case. In Ahlborn, in contrast, the

parties stipulated not only to the use of the formula, but to the

value of each of the variables used in the formula itself. 547

U.S. at 274. This approach, as one court has observed, avoided

the need for “significant inquiry about how a settlement amount

should be allocated in circumstances where the differing amounts

claimed by the parties are subject to serious dispute.” See

Tristani v. Richman, 609 F. Supp. 2d 423, 444 (W.D. Pa. 2009)

(“Tristani I”), aff’d in part, vacated in part sub nom. Tristani

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ex. rel. Karnes v. Richman, 652 F.3d 360 (3d Cir. 2011)

(“Tristani II”).

3. New Hampshire’s statute

As HHS acknowledges, “[l]ike the Arkansas statute at issue

in [Ahlborn], New Hampshire’s [former] allocation formula has

been partially invalidated by Ahlborn.” Indeed, the relevant New

Hampshire statute was amended during the pendency of this case. 

See note 1, supra. The statute now provides in relevant part:

III. Whenever a recipient of medical assistance shall

receive a settlement or an award from a liable third

person or party, such recipient shall repay the amount

of medical assistance furnished by the state to the

extent that the amount of the recovery makes repayment

possible. If a recipient of medical assistance

receives a settlement or an award from a third party,

the settlement or award is subject to disbursement as

provided in paragraphs III-a and IV. 

III-a. The commissioner of [HHS] may recover the full

amount of medical assistance furnished by the state

from the portion of any settlement or judgment

reasonably attributable to medical expenses . . . .

IV. A disbursement of any award, judgment, or

settlement shall not be made to a recipient without the

recipient or the recipient’s attorney first providing

at least 30-days written notice of any scheduled trial,

alternative dispute resolution hearing, or settlement

to the commissioner of [HHS] that the recipient has a

claim which could result in a recovery from a third

party . . . . If a dispute arises between the

recipient and the commissioner of [HHS] as to the

settlement of any claim that arises under this section,

the third party or the recipient’s attorney shall

withhold from disbursement to the recipient . . . an

amount equal to the commissioner’s claim. Either party

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may apply to the . . . court in which an action based

on the commissioner’s claim could have been commenced

for an order to determine an equitable apportionment

between the commissioner and the recipient of the

amount withheld. The court shall have broad discretion

to apportion the amount withheld as justice may

require.

N.H. Rev. Stat. Ann. § 167:14-a. As the parties acknowledge,

neither this court nor the New Hampshire Supreme Court has

addressed these provisions of the statute. 

III. Analysis

The parties here disagree on two key points. First, they

disagree over the portion of Burtsell’s settlement that

represents medical expenses and is therefore subject to HHS’s

claim for reimbursement under Ahlborn. Second, even within that

limit, they disagree over how much HHS should recover as a matter

of “equitable apportionment” under § 167:14-a. Specifically,

Burtsell argues that medical expenses represent $59,408 of the

settlement, but that HHS should receive no more than $26,733.60

(and as little as $8,112.69) of this sum as a matter of equitable

apportionment. HHS, in contrast, argues that at least $204,000

(and as much as $225,000) of the settlement represents payment

for medical expenses, and is therefore subject to its claim for

reimbursement, under Ahlborn--and that, as a matter of equitable

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apportionment, HHS should receive reimbursement of its Medicare

expenditures in full, i.e., in the sum of $75,892.30.

For reasons fully explained infra, this court, exercising

its “broad discretion” to effect equitable apportionment under

§ 167:14-A, IV, awards HHS the sum of $53,124.61. Because this

is less than the amount of the settlement that--according to

Burtsell’s own calculations--represents payment for medical

expenses, the court need not resolve the parties’ many competing

arguments over how to calculate that figure. But the court

rejects HHS’s arguments that it is entitled to reimbursement in

full either because (1) the amount of the settlement exceeded the

amount of its Medicaid expenditures on Burtsell’s behalf or

(2) Burtsell failed to give HHS proper notice of the settlement

under § 167:14-A, IV. The court also rules that Burtsell is a

prevailing party under 42 U.S.C. § 1988, entitling him to recover

his reasonable attorneys’ fees in this action. 

Before addressing these issues, however, the court must

consider Burtsell’s argument, raised for the first time shortly

before the evidentiary hearing, that the anti-lien and antirecovery provisions of the federal Medicaid statute, 42 U.S.C. 

§§ 1396p(a) and (b)(1), pre-empt the New Hampshire statute

insofar as it allows the state to “recover medical assistance

furnished by the state from the portion of any settlement or

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judgment reasonably attributable to medical expenses,” N.H. Rev.

Stat. Ann. § 167:14-a, III-a. For the reasons explained below,

the court rejects that argument as well.

A. Preemption

“A fundamental tenet of our federalist system is that

constitutionally enacted federal law is supreme to state law. 

See U.S. Const. Art. VI. cl. 2. As a result, federal law

sometimes preempts state law either expressly or by implication.” 

N.H. Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 74 (1st Cir.

2006), aff’d, 552 U.S. 364 (2008). Burtsell makes an express

preemption argument here. He says that the anti-lien and antirecovery provisions of the federal Medicaid statute (which, as

discussed at Part I.B.2, supra, prevent states from placing liens

on or obtaining recovery from the assets of any beneficiary on

account of any Medicaid assistance paid on his behalf) preempt

N.H. Rev. Stat. Ann. § 167:14-a, III-a (which, as just noted,

allows the state to recoup Medicaid payments from settlements or

judgments to beneficiaries).

In Ahlborn, the Supreme Court assumed, without deciding,

that state laws imposing liens against settlements to Medicaid

beneficiaries fell under an implied exception to the anti-lien

and anti-recovery provisions (at least insofar as the settlements

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included compensation for medical expenses). 547 U.S. at 284-85. 

Burtsell’s sole support for his argument that, contrary to this

assumption, the anti-lien and anti-recovery provisions in fact

preempt § 167:14-a, III-a, is the opinion of the District Court

for the Western District of Pennsylvania in Tristani I, supra. 

Burtsell relies on this decision even though, since he first

cited it, it has been overruled by a divided panel of the Third

Circuit Court of Appeals in Tristani II, supra. Burtsell now

urges this court to follow the district court’s decision, and the

opinion of the dissenting circuit judge, rather than the opinion

of the panel majority.

 In Tristani I, the district court concluded that a

Pennsylvania statute allowing the state to recoup medical

expenses from the proceeds of a tort settlement to a Medicaid

beneficiary was preempted by the anti-lien and anti-recovery

provisions. 609 F. Supp. 2d at 468. The court reasoned that a

lien on settlement proceeds logically could not arise until the

proceeds “materialized,” and, at that point, the proceeds became

the recipient’s “property.” See id. at 471-72. The court ruled

that the Pennsylvania statute thus effectively placed a lien on

the beneficiary’s “property” in violation of the anti-lien

provision. Id. at 472.

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The court further reasoned that, because the Pennsylvania

statute entitled the state to recover its Medicaid payments by

intervening in the beneficiary’s action against the tortfeasor,

there was no reason to allow the state to take a “free ride” by

placing a lien on the resulting settlement proceeds instead. Id.

at 473. As the appeals court subsequently explained, the

district court thus attempted to “harmonize the conflicting

provisions of the Social Security Act by interpreting them to

require Pennsylvania to take an active role in the recovery of

medical costs, either by intervening in lawsuits initiated by

Medicaid beneficiaries or by directly pursuing liable third

parties.” Tristani II, 652 F.3d at 368-69. Accordingly, the

district court held that, insofar as the Pennsylvania Medicaid

law allowed the state to impose a lien against the proceeds of a

third party’s settlement with a beneficiary, i.e., to recover

directly from those proceeds, the state law was pre-empted by the

anti-lien and anti-recovery provisions of federal Medicaid law. 

Tristani I, 609 F. Supp. 2d at 473. 

On appeal, however, the United States Court of Appeals for

the Third Circuit concluded that the Pennsylvania statute

allowing the state to recoup Medicaid payouts directly from

settlements to beneficiaries fell within an implied exception to

the federal anti-lien and anti-recovery provisions (as the

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Supreme Court had assumed in Ahlborn). Tristani II, 652 F.3d at

375. Writing for the majority, Circuit Judge Hardiman reasoned:

The text of the Social Security Act, when combined 

with its structure, purpose, and legislative history,

reveals that Congress sought to accomplish different

goals in enacting the anti-lien and anti-recovery

provisions on the one hand, and the reimbursement and

forced assignment provisions on the other hand. While

the anti-lien and anti-recovery provisions were

intended to protect the assets of Medicaid recipients,

the subsequently-enacted forced assignment and

reimbursement provisions were intended to limit the

financial burden of Medicaid on the states and ensure

that Medicaid beneficiaries did not receive a windfall

by recovering medical costs they did not pay. In this

context, the forced assignment and reimbursement

provisions are best viewed as creating an implied

exception to the anti-lien and anti-recovery provisions

of the Act. 

Id.

The conclusion of the court of appeals finds support in the

plain language of the provisions at issue. Again, the anti-lien

and anti-recovery provisions state, in relevant part, that “[n]o

lien may be imposed against the property of any individual prior

to his death on account of medical assistance paid or to be paid

on his behalf under the State plan” and that “[n]o adjustment or

recovery of any medical assistance correctly paid on behalf of an

individual under the State plan may be made.” 42 U.S.C. §§

1396p(a) and (b)(1). They do not mention, at least specifically,

the beneficiary’s rights of recovery against third parties.

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But the assignment and reimbursement provisions do. Those

provisions, again, require that each state’s Medicaid

beneficiaries assign it their rights “to payment for medical care

from any third party,” id. § 1396k(a)(1)(A), and that states 

“seek reimbursement for [Medicaid] assistance” from third parties

who have “legal liability” for it, id. § 1396a(a)(25)(B). As 

Circuit Judge Hardiman observed, these provisions--allowing a

state to pursue tortfeasors who have necessitated Medicaid

expenditures--thus serve to “protect[] the public fisc while

preventing Medicaid beneficiaries from receiving a windfall,”

i.e., recovering from third parties for medical expenses that the

beneficiary did not himself pay. 

4 652 F.3d at 373. These

purposes are undermined if, as the district court ruled in

Tristani, the state cannot recover against a tortfeasor’s

settlement with a Medicaid beneficiary, even if the settlement

unquestionably includes reimbursement for medical expenses borne

by the state, rather than by the beneficiary. See id.

(recognizing that, through the assignment and reimbursement

provisions, “Congress intended to ensure that states recover

Under the collateral source rule, which is followed in 4

nearly all states, the beneficiary may recover those expenses

from the tortfeasor nonetheless. See, e.g., Aumand v. Dartmouth

Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 90-91 (D.N.H. 2009). 

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medical payments . . . whenever third parties are found liable”)

(emphasis supplied). 

Indeed, as the court further observed in Tristani II, it

defies not only the apparent purpose of the assignment and

reimbursement provisions but also “common sense to conclude that

Congress intended to protect the rights of Medicaid beneficiaries

to recover medical costs that they never paid in the first

place.” Id. at 374. While a court is not free to disregard a

clear statutory command on the basis of “common sense”--after

all, one man’s common sense may be another man’s nonsense--that

is a legitimate area of inquiry here, where there is considerable

tension if not irreconcilable conflict between the anti-lien and

anti-recovery provisions, on the one hand, and the assignment and

reimbursement provisions, on the other.

The most sensible resolution, as the court concluded in

Tristani II, is to read the provisions as allowing states to

recover Medicaid payments from third-party settlements to

beneficiaries that include reimbursement for those costs, rather

than forcing states to pursue those third parties directly. This

approach gives states the power to reduce overall Medicaid costs

by ensuring that, to the extent possible, they are paid by the

parties responsible for causing them (as envisioned by the

assignment and reimbursement provisions) while preventing the

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state from trying to recover those costs from the beneficiaries

themselves (as envisioned by the anti-lien and anti-recovery

provisions). Thus, essentially for the reasons stated in

Tristani II, this court rejects Burtsell’s argument that 42

U.S.C. §§ 1396p(a) and (b)(1) pre-empt N.H. Rev. Stat. Ann. §

167:14-a, III-a. 

B. Ahlborn’s limit on recovery

As already noted, the parties disagree on the amount of

Burtsell’s settlement that represents medical expenses and, as a

result, is available to repay HHS’s Medicaid costs under Ahlborn. 

Again, Burtsell argues that medical expenses represent $59,408 of

the settlement, while HHS argues that at least $204,000 (and as

much as $225,000) of the settlement represents medical expenses. 

This disparity results from three principal disputes over how to

calculate the portion of an unallocated settlement that

represents medical expenses: (1) whether to use the “full value”

of the plaintiff’s claim, or the plaintiff’s demand, in figuring

the “discount” reflected by the settlement, (2) whether to count

the plaintiff’s attorneys’ fees as part of the settlement, and

(3) whether federal law permits a state Medicaid payor to recover

from the portion of a beneficiary’s personal injury settlement

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representing future medical expenses, or limits that recovery to

the portion representing past medical expenses.

It is unnecessary to resolve any of these disputes or, for

that matter, HHS’s more sweeping attack on the Ahlborn formula,

here. The holding of Ahlborn, as already discussed at length, is

simply that federal Medicaid law limits a state payor’s recovery

from a beneficiary’s settlement to that portion representing

payment for medical expenses. Here, Burtsell himself argues that

this sum is $59,408, and for the reasons explained fully below,

this court concludes that HHS is entitled to less than that sum

(specifically, $53,124.61) as a matter of equitable apportionment

under N.H. Rev. Stat. Ann. § 167:14-a, IV. So deciding this case

does not require resolving any of the potentially difficult and

important issues the parties have raised as to calculating the

maximum sum that a state Medicaid payor may recover from an

unallocated personal injury settlement to a Medicaid beneficiary. 

It requires only that this court, exercising the “broad

discretion” conveyed by § 167:14-a, IV, make an “equitable

apportionment” of HHS’s claim against Burtsell “as justice may

require.” That apportionment decision follows.

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C. Equitable apportionment

As discussed supra, N.H. Rev. Stat. Ann. § 167:14-a sets

forth a process for HHS to recover its Medicaid payouts from

third-party personal injury settlement payments to Medicaid

beneficiaries. Paragraph III of the statute provides that HHS

“may recover the full amount of medical assistance furnished by

the state from the portion of any settlement or judgment

reasonably attributable to medical expenses.” Paragraph IV of

the statute provides that, “[i]f a dispute arises between the

recipient and [HHS] as to the settlement of any [such] claim 

. . . , the third party or the recipient’s attorney shall

withhold from disbursement to the recipient . . . an amount equal

to [HHS’s] claim.” Paragraph IV continues:

Either party may apply to the superior court or the

district court in which an action based upon the

recipient’s claim could have been commenced for an

order to determine an equitable apportionment between

[HHS] and the recipient of the amount withheld. The

court shall have broad discretion to apportion the

amount withheld as justice may require.

(emphasis added). 

Despite this clear language, HHS argues that it is entitled

as a matter of law to full reimbursement of its Medicaid payments

arising out of Burtsell’s injuries. This follows, HHS argues,

from either the fact that (1) the amount of the settlement

exceeds the amount of the Medicaid payments or (2) HHS did not

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receive the notice of the settlement to which it was entitled

under § 167:14-a, IV. This court disagrees on both counts.

1. Absolute priority

HHS bases its first contention principally on 42 U.S.C. 

§ 1396k(b), part of the assignment provision of the federal

Medicaid statute. Again, that provision compels a state to

require its Medicaid recipients “to assign the State any rights 

. . . to payment for medical care from any third party,” 42

U.S.C.A. § 1396k(a)(1)(A), “[f]or the purpose of assisting in the

collection of medical . . . payments for medical care owed to

recipients of medical assistance,” id. § 1396k(a). Section

1396k(b) further provides:

Such part of any amount collected by the State under an

assignment made under the provisions of this section

shall be retained by the State as is necessary to

reimburse it for medical assistance payments made on

behalf of an individual with respect to whom such

assignment was executed . . . ., and the remainder of

such amount collected shall be paid to such individual. 

(emphasis added). By its terms, then, this provision applies

only to sums that a state itself collects from a third-party

“under an assignment” of the beneficiary’s rights to payment from

that third party. It does not apply when a beneficiary

successfully enforces his own rights to payment from a third

party by obtaining a settlement or judgment. Indeed, when that

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happens, the third party makes the payment to the beneficiary,

not to the state, so it would make no sense to say that the state

“collects” the payment, “retains” the sum necessary for

reimbursement of its Medicaid expenditures, or “pays” any

remainder to the beneficiary. Section 1396k(b), then, confers no

priority of payment upon the state in the case of a third-party

settlement to a Medicaid beneficiary.5

Likewise, nothing in the relevant provisions of the state

statute entitles HHS to such priority. Indeed, the statute is to

the contrary. It is true that paragraph III of 

§ 167:14-a provides that “[w]henever a recipient of medical

assistance shall receive a settlement or an award or from a

liable third person or party, such recipient shall repay the

Though HHS suggests otherwise, there is nothing in 5 Ahlborn

to the contrary. There, to support its argument that it could

impose a lien against settlement payments to a Medicaid

beneficiary even if they did not represent medical expenses, the

state relied on § 1396k(b), arguing that the provision “shows

that the State must be paid in full from any settlement.” 547

U.S. at 281. In response, the Court explained that “even

assuming the provision applies in a case where the state does not

actively participate in the litigation, [the] conclusion rests on

[the] false premise” that the “amount recovered under an

assignment is . . . the entire settlement”--which is false

because “under the federal statute the State’s assigned rights

extend only to recovery of payments for medical care.” Id.

(emphasis added; quotation marks omitted). This court is not

willing to equate an assumption the Court made for the purpose of

rejecting an argument as its endorsement of that assumption,

particularly where the statutory language in question is directly

to the contrary. 

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amount of medical assistance furnished by the state to the extent

that the amount of the recovery makes repayment possible”

(emphasis added). The very next sentence, however, states that

“[i]f a recipient of medical assistance receives a settlement or

an award from a third party, the settlement or award is subject

to disbursement as provided in paragraphs III-a and IV.” Those

provisions make clear that the statute does not entitle HHS to

full recovery of its Medicaid expenditures on the sole condition

that they are less than the amount of the settlement.

Paragraph III-a provides that HHS “may recover the full

amount of medical assistance furnished by the state from the

portion of any settlement or judgment reasonably attributable to

medical expenses” (emphasis added), not that HHS “shall recover

the full amount,” as HHS envisions. Cf. Appeal of Rowan, 142

N.H. 67, 71 (1997) (“It is the general rule that in statutes the

word ‘may’ is permissive only, and the word ‘shall’ is

mandatory.”) Even more importantly, paragraph IV provides for

disbursement to occur by way of an “equitable apportionment,”

according to the court’s “broad discretion . . . as justice may

require,” in the event of a dispute between the recipient and HHS

as to its claim against the settlement. This provision--and the

flexible process it envisions--would be unnecessary if, as HHS

argues here, it is simply entitled to repayment of its claimed

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expenditures in full so long as they are less than the settlement

(or the portion of the settlement representing medical expenses).

Accepting HHS’s argument, then, would mean ignoring

paragraphs IV (and III-a) and giving effect only to an isolated

sentence of paragraph III--even though paragraph III specifically

provides that third-party awards to Medicaid beneficiaries are to

be disbursed as provided in paragraph IV. That flies in the face

of well-settled rules that associated sections of a statute

should be read together to determine its meaning, see, e.g.,

Ocasio v. Fed. Exp. Corp., 162 N.H. 436, 450-51 (2011), and that

no part of a statute be treated as surplusage, see, e.g.,

Gordonville Corp. N.V. v. LR1-A Ltd. P’ship, 151 N.H. 371, 375

(2004). Instead, the court reads § 167:14-a to mean what its

says, namely, that HHS’s claim for Medicaid expenses against a

third-party settlement to a beneficiary is subject to equitable

apportionment as set forth in paragraph IV, rather than entitled

to absolute priority.

2. Inadequate notice

The court also rejects HHS’s claim that Burtsell’s failure

to properly notify it of the impending settlement creates a

presumption that HHS is entitled to full reimbursement. Again,

N.H. Rev. Stat. Ann. § 167:14-a, IV provides:

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A disbursement of any award, judgment, or settlement

shall not be made to a recipient without the recipient

or the recipient’s attorney first providing at least

30-days written notice of any scheduled trial,

alternative dispute resolution hearing, or settlement

to the commissioner of [HHS] that the recipient has a

claim which could result in a recovery from a third

party.

Here, Burtsell first informed HHS of his medical malpractice

claim in June 2007, when a paralegal working for his attorney

first contacted HHS to ask for information on its lien. The next

time HHS heard from anyone on Burtsell’s behalf was on June 10,

2008, when his attorney asked HHS to compromise its Medicaid

lien, explaining that he was working on settling the medical

malpractice case. HHS did not hear from Burtsell’s attorney

again, however, until a week or so after the medical malpractice

action had in fact settled in mid-June 2008. Nor did Burtsell

inform HHS of the mediation session--which took place on June 3,

2008, but did not end in a settlement--until after the fact.

HHS argues that Burtsell therefore failed to provide it with

the notice required by § 167:14-a, IV. But that proposition is

not entirely clear, given the structure of the statutory notice

provision. The provision prevents disbursement of a settlement

or award to a Medicaid recipient unless HHS has received 30 days

written notice--but notice of what, and 30 days from when?

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HHS seems to take the position that it is entitled to 30

days prior notice of “any scheduled trial, alternative dispute

resolution hearing, or settlement,” but it is unclear how a

recipient can provide advance notice of a settlement, which by

its nature--and unlike a trial or alternative dispute resolution

hearing--cannot be scheduled before it occurs (indeed, it can

occur more or less spontaneously). Another way to read the

provision would be simply to require 30 days notice of the claim

before the payment on it is disbursed, but that construction

reads the phrase “of any scheduled trial, alternative dispute

resolution hearing, or settlement” out of the statute, and also

would not provide HHS with the opportunity to participate in

litigation, alternative dispute resolution, or settlement

negotiations before they end. In any event, Burtsell’s attorney

still has not disbursed to his client that portion of the

settlement representing HHS’s claimed lien, so if the statute 

requires notice to HHS 30 days prior to disbursement, it would

seem that Burtsell has complied with it.

The textual problem--but not necessarily the practical 

one--could potentially be avoided by yet another reading of the

provision, i.e., to require notice “that the recipient has a

claim which could result in a recovery from a third party,” so

long as that notice occurs least 30 days before the claim

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proceeds to trial, an alternative dispute resolution hearing, or

settlement. That is what Burtsell did here: he told HHS of his

medical malpractice claim in June 2007, which was considerably

more than 30 days before the mediation session or the subsequent

settlement.

Rather than trying to resolve this interpretive quandary

here, this court will simply assume without deciding that

Burtsell failed to comply with the notice requirement of 

§ 167:14-a, IV, as HHS contends. It does not follow that, as a

consequence, HHS is presumptively entitled to reimbursement of

its Medicaid expenditures in full. Section 167:14-a, IV does not

state that this--or, for that matter, any result at all--follows

from a beneficiary’s failure to give the required notice. Since

the statute does not provide any consequence for failing to

provide notice, this court is disinclined to simply make one up.

This is especially true where the proposed “punishment”--a

presumption entitling HHS to full reimbursement of its Medicare

expenditures notwithstanding any other factors--would not seem to

fit the “crime” of failing to give notice, at least in this case. 

As a result of the initial communication from Burtsell’s counsel,

HHS knew that Burtsell, a Medicare recipient, had “a claim which

could result in recovery from a third party.” HHS learned this

more than a year before Burtsell ultimately reached the

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settlement, but does not appear to have done anything in response

other than to notify Burtsell that, in its view, he had not

complied with the notice requirement. And in the settlement, of

course, neither Burtsell nor any of the other lienholders

received the full amount of compensation they claimed as a result

of his injuries. Under these circumstances, there is no reason

to believe that, had Burtsell provided the 30 days prior notice

of the mediation session that HHS reads the statute to require,

it would have--unlike everyone else--recovered the full amount of

its expenditures.

To the contrary, HHS acknowledged here, through the

testimony of an attorney who routinely represents it in

negotiations over Medicaid liens on personal injury settlements,

that it often compromises on its recovery during the settlement

process because it is in the department’s best interest to do so.

There was also evidence that, in those relatively few cases where

HHS has participated in the mediation of a personal injury case,

it typically settles its claim for 50 percent of its value. 

Thus, although entitling HHS to a presumption of full recovery

from a settlement reached without the required notice might be

appropriate in some cases, it is not appropriate here.6

This decision finds additional, if indirect, support in 6

Ahlborn, where the Court rejected the state’s argument that its

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3. The apportionment calculus

As noted supra, Burtsell argues that HHS should receive no

more than $26,733.60 (and as little as $8,112.69) from the

settlement for its claimed Medicaid expenditures, while HHS

argues that it is entitled to the full amount of those

expenditures, $75,892.30. Again, this court “broad discretion to

apportion [this] amount . . . as justice may require.” N.H. Rev.

Stat. Ann. § 167:14-a, IV.

Burtsell claims, based on expert testimony from two

different attorneys highly experienced in litigating personal

injury actions, that the total value of his claim was

approximately $5 million. Because the gross settlement amount

was $850,000--but $315,328 of that payment was directed to his

attorneys’ fees and costs, leaving $534,672--Burtsell calculates

lien against the beneficiary’s settlement should be permitted to

exceed the portion representing medical expenses because she had

“breached her duty to ‘cooperate’ with [the state] or because

there is an inherent danger of manipulation in cases where the

parties to a tort case settle without judicial oversight or input

from the state.” 547 U.S. at 287. The Court observed that while

“the argument that a rule of full reimbursement is needed

generally to avoid the risk of settlement manipulation is

colorable,” it was ultimately “unpersuasive,” because “the risk

that parties to a tort suit will allocate away the State’s

interest can be avoided” by, among other procedures, “submitting

the matter to a court for decision.” Id. (footnote omitted). Of

course, that is what happened here and, more importantly, it is

what § 167:14-a, IV, envisions in creating an action for

equitable apportionment.

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that he received 10.69 percent of the value of the case in

settlement. Burtsell argues that, as a matter of equitable

apportionment, HHS should get the same proportionate recovery of

its claim: $8,112.89 (10.69 percent of $75,892.30).

While this approach is not inequitable by any means, it does

not fully reflect what happened in the settlement, in which not

every interested party took such a deep discount. Most

significantly, the private insurer who paid the lion’s share of

Burtsell’s medical expenses received $62,256.75 in settlement of

its claim of $88,938.12, which works out to nearly 70 percent. 

Burtsell does not explain how it would be equitable for the

private insurer to recover substantially more, as a percentage of

its total claim, than HHS, and that proposition is not apparent

to the court. If anything, HHS’s role as a taxpayer-funded

insurer of last resort for the indigent would seem to point to

the opposite conclusion.

By the same token, this court can see no reason that HHS

deserves to recover more than 70 percent of its claimed

expenditures here. The very nature of a negotiated settlement of

a lawsuit is that nobody gets everything he or she would have

gotten if the case had proceeded to trial and resolved in his or

her favor. Burtsell’s medical malpractice claim was no

exception: Burtsell, his private insurer, Medicare, the third34

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party hospital, and even Burtsell’s attorney each took less than

any of them stood to recover as the best possible outcome. It

would not be equitable for HHS to recover in full nonetheless.

Indeed, the testimony of the HHS attorney at the evidentiary

hearing was that HHS often compromises on its recovery during the

settlement process because it is in its best interest to do so. 

There was also evidence that, at least in the relatively small

number of cases where HHS participates in a mediation session, it

ends up settling its claim for approximately 50 percent of its

total. Here, then, HHS is essentially asking for something that

it almost certainly would not have even insisted on, much less

received, had it participated in the settlement negotiations on

Burtsell’s medical malpractice claim. That does not strike the

court as equitable, or even reasonable.

 Finally, allowing HHS to recover in full, at least in the

absence of atypical circumstances, could potentially impose an

obstacle to settlement in many of the personal injury cases where

HHS has a claim for Medicaid expenditures. If the beneficiary

knows that HHS will ultimately receive reimbursement in full as

the result of an equitable apportionment action, then the

beneficiary will likely demand that the tortfeasor pay that sum

in full--in addition to the sum necessary to make the beneficiary

forego pursuing his claim against the tortfeasor. Introducing

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this “non-negotiable” element into settlement negotiations “might

preclude settlement in a large number of cases, and be unfair to

the recipient in others,” as the Supreme Court recognized in

Ahlborn. 547 U.S. at 288.

In sum, exercising its “broad discretion to apportion [HHS’s

claim] as justice may require” under § 167:14-a, IV, this court

apportions 70 percent of that claim, or $53,124.61, to HHS, and

the remainder to Burtsell. The court cautions that this result

is not intended to express the view that 70 percent (whether

because it was the proportionate recovery obtained by Burtsell’s

private insurer, or otherwise) will always, or even

presumptively, be the equitable resolution of a disputed HHS

claim against a personal injury settlement; indeed, the nature of

equity is that similar facts may produce different results in

different cases. It is merely this court’s view of an equitable

result in this case.

D. Attorneys’ fees

Finally, Burtsell argues that, under 42 U.S.C. § 1988, he is

entitled to recover his attorneys’ fees for prosecuting this

action. Section 1988 provides that “[i]n any action or

proceeding to enforce . . . [among other statutes, 42 U.S.C. 

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Case 1:08-cv-00455-JL Document 49 Filed 05/10/12 Page 36 of 42
§ 1983], the court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s fee as part of the costs.” 

42 U.S.C. § 1988(b). HHS does not dispute that this was a

proceeding to enforce § 1983.

7

HHS also has not disputed that, if it failed to recover the

full amount of its claimed lien in this matter--which, as just

discussed, is indeed the outcome--then Burtsell would be a

“prevailing party” under § 1988. “Generally speaking, a

‘prevailing party’ is ‘one who has been awarded some relief by

the court,’ meaning ‘a judicially sanctioned change in the legal

relationship of the parties.’” Diffenderfer v. Gomez-Colon, 587

F.3d 445, 453 (1st Cir. 2009) (quoting Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598,

603-05 (2001)). “A plaintiff who receives a favorable judgment

on the merits of a claim is the classic example of a ‘prevailing

party.’” Id.

While HHS argued, in moving to dismiss the case for lack of 7

subject-matter jurisdiction, that Burtsell had not stated a claim

under § 1983, HHS did not argue that the relevant provisions of

the federal Medicaid statute conferred no private rights

enforceable under § 1983 (to the contrary, HHS more or less

conceded that they did). Instead, HHS argued that its dispute

with Burtsell presented no question of federal law. In denying

HHS’s motion to dismiss, the court rejected that argument. See

Burtsell, 2009 DNH 069, 9. 

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Burtsell readily fits that description here. As a result of

this order, this court will enter judgment directing that HHS

receive only $53,124.61 of the $75,892.30 that was claiming. 

While this is not a complete victory, it is a victory

nonetheless, and a tangible one at that, because it results in

HHS’s recovering less money from Burtsell’s settlement than it

had insisted on receiving. It is not the sort of “purely

technical or de minimis” success, or the mere “moral

satisfaction,” that could justify denying prevailing party

status. Gay Officers Action League v. Puerto Rico, 247 F.3d 288,

293 (1st Cir. 2001). Indeed, while Burtsell did not get all of

the relief he sought--which included rulings that HHS could get

nothing from the settlement because § 167:14-a is preempted by

federal law or, in the alternative, that HHS should get only

about $8,100 as a matter of equitable apportionment--“the degree

of the plaintiff’s success in relation to the other goals of the

lawsuit is a factor critical to the determination of the size of

a reasonable fee, not to the eligibility for a fee award at all.” 

Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.

782, 790 (1989).

Nor is Burtsell’s status as a prevailing party affected by

the fact that this court decided the case in Burtsell’s favor

without completely resolving his claim that HHS’s insistence on

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recovering in full was at odds with federal law. In Williams v.

Hanover Hous. Auth., 113 F.3d 1294, 1298 (1st Cir. 1997), the

court of appeals held that “it is immaterial for § 1988 purposes

that plaintiffs’ success in the § 1983 action results from a

favorable ruling on a relevant issue of state law, so long as the

state law issue and the federal claims being made in the § 1983

proceeding are closely interrelated.” That is the case here. 

Burtsell sought relief against HHS’s insistence on recovering the

full amount of its Medicaid expenditures on the grounds that its

position violated federal Medicaid law or, in the alternative,

was not an “equitable apportionment” under state Medicaid law. 

As the balance of this order makes clear, these claims are

“factually and legally interconnected” so that Burtsell may

recover his fees under § 1988 even though this court resolved one

of his federal-law arguments against him and did not reach the

other ones.

Again, HHS has not questioned that Burtsell is “the

prevailing party” under § 1988. Instead, HHS argues that

Burtsell “is not entitled” to attorneys’ fees because he failed

to give it the notice of the mediation session which, in its

view, is required by § 167-14:a, IV. But even if Burtsell did

fail to give the notice required by state law--a point which, as

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discussed supra, is far from clear--HHS does not explain how that

would disentitle Burtsell to recovery of his fees here under

§ 1988. As the very case that HHS cites in support of this

argument states, “the Supreme Court has interpreted § 1988 to

require attorney’s fees save for rare cases in which ‘special

circumstances’ would render an award unjust.” United States v.

Cofield, 215 F.3d 164, 170 (1st Cir. 2000). While the court of

appeals has recognized that “special circumstances warranting a

denial of attorneys’ fees under § 1988 have been found if there

is a showing of outrageous or inexcusable conduct by plaintiffs

(or plaintiffs’ counsel) during the litigation of the case,”

Williams, 113 F.3d at 1301 (quotation marks omitted), any

deficiency in the notice that Burtsell provided to HHS surely did

not rise to that level.

HHS also argues that “[t]his case involves a good faith

dispute over several novel legal issues. An award of fees and

costs is therefore not appropriate.” But even taking this

characterization of HHS’s position at face value, it too has no

impact on Burtsell’s entitlement to attorneys’ fees. The court

of appeals has squarely held that “[t]he good faith of defendants

is not a controlling factor in determining whether or not

plaintiffs merit an award” of attorneys’ fees under § 1988. 

Williams, 113 F.3d at 1301. As the court explained, § 1988

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is not meant as ‘punishment’ for ‘bad’ defendants who

resist plaintiffs’ claims in bad faith. Rather, it is

meant to compensate civil rights attorneys who bring

civil rights cases and win them. The need for such law

suits, and such payment, may well be greatest in those

instances in which lawyers and officials, in totally

good faith, have opposing views of what state and

federal law requires of them.

Id. at 1302 (quoting Coal. for Basic Human Needs v. King, 691

F.2d 597, 602 (1st Cir. 1982) (Breyer, J.)). So, whatever HHS’s

motivations were for insisting on reimbursement in full from

Burtsell, they are irrelevant to his entitlement to fees under 8

§ 1988. All that relief demands is that he prevail in a § 1983

action, and, again, HHS does not dispute that Burtsell has done

just that.

Accordingly, the court rules that Burtsell is entitled to

recover “a reasonable attorney’s fee as part of the costs” here

under § 1988. Burtsell shall file an application for attorneys’

fees, together with all necessary supporting documentation,

within 30 days of the date of this order. HHS shall file its

It must be noted here that, beginning in the relatively 8

early stages of this litigation, the court informed HHS on

several occasions that its entitlement to full reimbursement was

doubtful at best, and urged HHS to reconsider its position,

rather than continuing to consume public and private resources

through this lawsuit. HHS refused to do so even though, as

discussed at length, its position is obviously at odds with 

§ 167:14-a, IV.

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objection to the application, if any, within 14 days of

Burtsell’s filing.

III. Conclusion

For the foregoing reasons, this court orders an equitable

apportionment of HHS’s claim to Burtsell’s settlement, in the

amount of $53,124.61 to HHS and the balance to Burtsell. 

Burtsell’s attorney shall forthwith disburse those sums from the

escrow account in which they are currently held. The clerk shall

enter judgment accordingly and close the case.

Burtsell shall file an application for attorneys’ fees,

together with all necessary supporting documentation, within 30

days of the date of this order. HHS shall file its objection to

the application, if any, within 14 days of Burtsell’s filing.

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: May 10, 2012

cc: David P. Slawsky, Esq.

Jason D. Reimers, Esq.

Nancy J. Smith, Esq.

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Case 1:08-cv-00455-JL Document 49 Filed 05/10/12 Page 42 of 42