                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2004

Sabree v. Richman
Precedential or Non-Precedential: Precedential

Docket No. 03-1226




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"Sabree v. Richman" (2004). 2004 Decisions. Paper 667.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/667


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                        PRECEDENTIAL                       PENNSYLVANIA
                                                      D.C. Civil No. 02-cv-03426
    UNITED STATES COURT OF                     District Judge: The Honorable Herbert J.
           APPEALS                                              Hutton
     FOR THE THIRD CIRCUIT

                                                    Argued: September 11, 2003
             No. 03-1226

                                               Before: ALITO, BARRY, and AMBRO,
HASSAN SABREE, By his Mother and                           Circuit Judges
       Next-Friend, Hana Sabree;
CATHERINE MEADE, By her Father                      (Opinion Filed: May 11, 2004)
       and Next-Friend, Robert A.
  Meade; JOSEPH FRAZIER, By his
        Mother and Next-Friend,
Patricia Frazier, for Themsleves and All       Stephen F. Gold, Esq. (Argued)
            Others Similarly                   125 South 9th Street
                 Situated                      Suite 700
                                               Philadelphia, PA 19107
                   v.                                 -AND-
                                               Ilene W. Shane, Esq.
  * ESTELLE B. RICHMAN, In Her                 Disabilities Law Project
    Official Capacity as Secretary of          1315 Walnut Street
the Department of Public Welfare of the        Suite 400
           Commonwealth of                     Philadelphia, PA 19107
              Pennsylvania
                                               Attorneys for Appellants
          Hassan Sabree, Catherine
      Meade, and Joseph Frazier,
                         Appellants            Doris M. Leisch, Esq. (Argued)
                                               Commonwealth of Pennsylvania
     *{Substitution Pursuant to Clerk's        Department of Public Welfare
         Order dated 3/28/03                   1400 Spring Garden Street
         and F.R.A.P. Rule 43(c)}              State Office Building
                                               Philadelphia, PA 19130
                                                      -AND-
   APPEAL FROM THE UNITED                      John A. Kane, Esq.
    STATES DISTRICT COURT                      Commonwealth of Pennsylvania
 FOR THE EASTERN DISTRICT OF                   Office of Legal Counsel

                                           1
Department of Public Welfare                       imposed on it by Congress.
P.O. Box 2675
Health & Welfare Building                                  Plaintiffs are a class of mentally
Seventh & Forster Streets                          retarded adults in need of medical
Harrisburg, PA 17120                               services from an intermediate care
                                                   facility for persons with mental
Attorneys for Appellees                            retardation (“ICF/MR services”).
                                                   Although they qualify for state assistance
                                                   to obtain these services under the
Sarah Somers, Esq.                                 Medicaid Act, that assistance has not
National Health Law Program                        been forthcoming. In an effort to force
211 North Columbia Street                          Pennsylvania to provide the needed
Chapel Hill, NC 27514                              services, plaintiffs, pursuant to 42 U.S.C.
                                                   § 1983, sued the Secretary of the
Attorney for Amicus-Appellants                     Pennsylvania Department of Public
                                                   Welfare. Pennsylvania argues that it
                                                   would provide assistance if it could but
                                                   that it cannot, and that, in any event, the
      OPINION OF THE COURT                         sole remedy for its non-compliance with
                                                   the Medicaid Act is the suspension or
                                                   revocation of funding from Congress.
                                                   We disagree.1
BARRY, Circuit Judge
                                                     1
         I. INTRODUCTION                               There appears to be a disagreement
                                                   among our sister courts of appeals as to
        When Congress offers money to              whether, pursuant to Medicaid, a state
the states, it often imposes conditions on         must merely provide financial assistance
acceptance. States welcome federal                 to obtain covered services, or provide the
funding to help underwrite many of the             services themselves. See Bruggeman v.
core services they provide to their                Blagojevich, 324 F.3d 906, 910 (7th Cir.
citizens. Education, healthcare, and               2003) (“[T]he statutory reference to
public safety, to name a few, while                ‘assistance’ appears to have reference to
typically state concerns, are usually              financial assistance rather than to actual
funded in part by federal dollars that             medical services, though the distinction
come with strings attached. This case              was missed in Bryson v. Shumway, 308
raises the question–not new, but of first          F.3d 79, 81, 88-89 (1st Cir. 2002) and
impression in this Court following                 Doe v. Chiles, 136 F.3d 709, 714, 717
Gonzaga University v. Doe, 536 U.S. 273            (11th Cir. 1998).”). The only issue
(2002)–of what happens when a state                before us, however, is whether plaintiffs
allegedly fails to live up to the conditions       may sue Pennsylvania under 42 U.S.C. §
                                                   1983 to obtain the “assistance” for which

                                               2
        The District Court, relying heavily         at 283. The Chief Justice, writing for the
on Gonzaga University, concluded that               Court, stated emphatically: “We now
Congress had not unambiguously                      reject the notion that our cases permit
conferred the rights that plaintiffs sought         anything short of an unambiguously
to vindicate under § 1983, and dismissed            conferred right to support a cause of
the suit.2 Sabree v. Houston, 245 F.                action brought under § 1983.” Id.
Supp. 2d 653, 659 (E.D. Pa. 2003). At               (emphasis added).
first blush, language in Gonzaga
University would appear to support that                    The Court, no doubt, has set a
conclusion. In Gonzaga University, the              high bar for plaintiffs. Nonetheless, after
Court foreclosed the ability of a student           having considered the relevant provisions
to enforce, by means of § 1983,                     of the Medicaid Act against the backdrop
provisions of the Family Educational                of Gonzaga University, we are convinced
Rights and Privacy Act of 1974                      that Congress unambiguously conferred
(“FERPA”).3 Gonzaga Univ., 536 U.S.                 the rights which plaintiffs here seek to
                                                    enforce. Accordingly, we will reverse
                                                    the order of the District Court.
they qualify. To resolve this issue we
need not, and do not, address the remedy                       II. DISCUSSION
that might be available to plaintiffs, but
leave that to the District Court in the first              Title XIX of the Social Security
instance.                                           Act, codified at 42 U.S.C. §§ 1396-
                                                    1396v and popularly known as the
  2
    Section 1983 imposes liability on               “Medicaid Act,” established a
anyone who, under color of state law,               “cooperative federal-state program under
deprives a person “of any rights,                   which the federal government furnishes
privileges, or immunities secured by the            funding to states for the purpose of
Constitution and laws.” 42 U.S.C. §                 providing medical assistance to eligible
1983. Rights conferred by federal statute           low-income persons.” Pa. Pharm. Ass’n
are enforceable under § 1983. Maine v.              v. Houstoun, 283 F.3d 531, 533 (3d Cir.
Thiboutot, 448 U.S. 1, 4-8 (1980).
  3
  The relevant FERPA language                              education records (or
mandated:                                                  personally identifiable
                                                           information contained
       No funds shall be made                              therein . . . ) of students
       available under any                                 without the written consent
       applicable program to any                           of their parents to any
       educational agency or                               individual, agency, or
       institution which has a                             organization.
       policy or practice of
       permitting the release of                    20 U.S.C. § 1232g(b)(1).

                                                3
2002). States are not required to                 1396d(a)(15). 6
participate in the program, but states that
do accept federal funding must comply                     That plaintiffs merit sympathy
with the Medicaid Act and with                    does not escape our notice, but neither
regulations promulgated by the Secretary          does it govern our reasoning. Rather,
of Health and Human Services (“HHS”).             Gonzaga University provides the
Participating states must devise and
implement a state medical assistance plan
that is approved by the Secretary of                     shall have opportunity to
HHS. 42 U.S.C. § 1396; 42 C.F.R. §                       do so, and that such
430.10. A state that fails to comply with                assistance shall be
its medical assistance plan runs the risk                furnished with reasonable
of having its funding revoked by the                     promptness to all eligible
Secretary. 42 U.S.C. § 1396c.                            individuals . . . .

       There is no dispute that plaintiffs        42 U.S.C. § 1396a(a)(8) (emphasis
qualify for ICF/MR services under                 added).
Pennsylvania’s medical assistance plan.             5
Nor is it disputed that plaintiffs have               Section 1396a(a)(10) provides in
languished on waiting lists for years,            relevant part: “A State plan for medical
unable to obtain these services. The only         assistance must . . . provide . . .for
dispute, and the one now before us, is            making medical assistance available, . . .
whether plaintiffs may sue Pennsylvania           to . . . all [eligible] individuals . . . .” 42
under § 1983 to enforce the provisions of         U.S.C. § 1396a(a)(10) (emphasis added).
Title XIX that require (1) a state to               6
                                                      Section 1396d(a)(15) provides in
provide medical assistance covering
                                                  relevant part:
ICF/MR services, and (2) to do so with
“reasonable promptness.” 42 U.S.C. §§
                                                         For purposes of this title
1396a(a)(8),4 1396a(a)(10), 5 and
                                                         [42 U.S.C. §§ 1396 et seq.]
                                                         . . . [t]he term “medical
                                                         assistance” means payment
  4
    Section 1396a(a)(8) provides in                      of part or all of the cost of
relevant part:                                           the following care and
                                                         services . . . for individuals
       A State plan for medical                          . . . who are [eligible:] . . .
       assistance must . . .                             services in an intermediate
       provide that all individuals                      care facility for the
       wishing to make                                   mentally retarded . . . .
       application for medical
       assistance under the plan                  42 U.S.C. § 1396d(a)(15).

                                              4
dispassionate lens through which this             1983.7
matter must be viewed. A three-step
analysis is required. First, we must                      In Gonzaga University, the
examine Gonzaga University to                     plaintiff sought to enforce conditions
determine the essential characteristics of        imposed on the State of Washington by
an “unambiguously conferred right.”
Second, we must assess whether the
statutory language of Title XIX imparts
an “unambiguously conferred right.”
Third, we must determine–if an                      7
                                                      We take as a given that when seeking
individual right has been unambiguously
                                                  redress under § 1983 for violation of a
conferred–whether Congress has
                                                  statutory right, a plaintiff need not
precluded individual enforcement of that
                                                  establish that Congress intended to
right. This analysis, which, as will
                                                  confer a remedy in addition to that right.
become clear, is assuredly not for the
                                                  See, e.g., Gonzaga Univ., 536 U.S. at 284
timid, compels the conclusion that the
                                                  (“Plaintiffs suing under § 1983 do not
provisions invoked by plaintiffs–42
                                                  have the burden of showing an intent to
U.S.C. §§ 1396a(a)(8), 1396a(a)(10),
                                                  create a private remedy because § 1983
and 1396d(a)(15)–unambiguously confer
                                                  generally supplies a remedy for the
rights vindicable under § 1983.
                                                  vindication of rights secured by federal
                                                  statutes. Once a plaintiff demonstrates
A.     Gonzaga University v. Doe and
                                                  that a statute confers an individual right,
       Unambiguously Conferred
                                                  the right is presumptively enforceable by
       Rights – Step One
                                                  § 1983.”).
                                                          That § 1983 provides a remedy for
       As the Court explained more than
                                                  statutorily conferred rights “makes
twenty years ago, “[i]n legislation
                                                  obvious sense.” Id. at 285. While the
enacted pursuant to the spending power,
                                                  creation of statutorily specific remedies
the typical remedy for state
                                                  would make our task easier, Congress
noncompliance with federally imposed
                                                  has chosen to provide § 1983 as an all
conditions is not a private cause of action
                                                  purpose remedy. Obviously, we cannot
for noncompliance but rather action by
                                                  require a clear statement rule mandating
the Federal Government to terminate
                                                  the specification of a right to sue within
funds to the State.” Pennhurst State Sch.
                                                  the statutory text; to do so would
& Hosp. v. Halderman, 451 U.S. 1, 28
                                                  effectively repeal § 1983. Instead, we
(1981). Nonetheless, as the Court
                                                  must, as the Court demonstrates in
observed in Gonzaga University, in some
                                                  Gonzaga University, examine the
instances Congress has unambiguously
                                                  statutory text to determine whether
conferred rights that may be vindicated
                                                  Congress has unambiguously conferred
by individual suits brought under §
                                                  an individual right.

                                              5
FERPA.8 “Congress enacted FERPA                           Since Pennhurst, only twice has
under its spending power to condition the         the Court recognized a congressional
receipt of federal funds on certain               intent to confer statutory rights
requirements relating to the access and           vindicable via § 1983: Wright v. Roanoke
disclosure of student educational                 Redevelopment & Housing Authority,
records.” Gonzaga Univ., 536 U.S. at              479 U.S. 418 (1987), addressing the
278. Ultimately, the Court rejected the           Public Housing Act; and Wilder v.
viability of plaintiff’s claim because it         Virginia Hospital Ass’n, 496 U.S. 498
concluded that in FERPA Congress had              (1990), addressing Title XIX of the
not “intended to create a federal right.”         Social Security Act. The Court has
Id. at 283 (emphasis in original); see also       foreclosed § 1983 suits in two equally
id. at 291 (Breyer, J., concurring) (“The         significant cases (in addition to Gonzaga
ultimate question, in respect to whether          University): Suter v. Artist M., 503 U.S.
private individuals may bring a lawsuit to        347 (1992), addressing the Adoption
enforce a federal statute, through 42             Assistance and Child Welfare Act of
U.S.C. § 1983 or otherwise, is a                  1980; and Blessing v. Freestone, 520
question of congressional intent.”)               U.S. 329 (1997), addressing Title IV-D
(emphasis added).                                 of the Social Security Act.

        Accordingly, we must determine                    While in Gonzaga University the
whether Congress intended to confer the           Court “reject[ed] the notion that [its] . . .
rights claimed by plaintiffs. Gonzaga             cases permit anything short of an
University instructs that congressional           unambiguously conferred right to support
intent is manifest only when statutory            a cause of action brought under § 1983,”
language unambiguously confers such               it carefully avoided disturbing, much less
rights. Id. at 283. To determine what             overruling, Wright and Wilder. Gonzaga
statutory language is necessary to confer         Univ., 536 U.S. at 283. Indeed, as the
rights unambiguously, we turn first to the        ensuing analysis will demonstrate, the
cases in which the Court addressed                Court relied on those cases in crafting
statutory actions brought under § 1983.           Gonzaga University. Accordingly, we
We then consider what the Court means             will assess the rights claimed by
in Gonzaga University when it requires            plaintiffs in light of Wright, Wilder,
“rights-creating language.” Id. at 287.           Suter, and Blessing, as construed by
                                                  Gonzaga University.
       1.     Statutory Rights and 42
              U.S.C. § 1983                             (a) Wright v. Roanoke
                                                  Redevelopment & Housing Authority

  8
   For the relevant FERPA language, see                 In Wright, the Court permitted a §
note 3, supra.                                    1983 suit by tenants to recover past

                                              6
overcharges under a rent-ceiling               explained in Gonzaga University, three
provision of the Public Housing Act.9 As       factors motivated the Wright Court to
                                               conclude “that the provision
                                               unambiguously conferred ‘a mandatory
  9
    The Public Housing Act provided in         [benefit] focusing on the individual
relevant part:                                 family and its income.’” Gonzaga Univ.,
                                               536 U.S. at 280 (quoting Wright, 479
      Dwelling units assisted                  U.S. at 430). First, “[t]he key to [the
      under this chapter shall be              Court’s] inquiry was that Congress spoke
      rented only to families who              in terms that ‘could not be clearer.’” Id.
      are lower income families                Second, Congress “conferred
      at the time of their initial             entitlements ‘sufficiently specific and
      occupancy of such units.                 definite to qualify as enforceable rights
      Reviews of family income                 under Pennhurst.’” Id. (quoting Wright,
      shall be made at least                   479 U.S. at 432). Third, “the federal
      annually. A family shall                 agency charged with administering the
      pay as rent for a dwelling               Public Housing Act ‘had never provided
      unit assisted under this                 a procedure by which tenants could
      chapter (other than a family             complain to it about the alleged failures
      assisted under section                   [of state welfare agencies] to abide by
      1437f(o) of this title) the              [the Act’s rent-ceiling provision].’” Id.
      highest of the following                 (quoting Wright, 479 U.S. at 426).
      amounts, rounded to the
      nearest dollar:                                  (b) Wilder v. Virginia Hospital
                                               Ass’n
      (1) 30 per centum of the
      family’s monthly adjusted
                                                      In Wilder, the Court permitted a §
      income;
                                               1983 action brought by health care
      (2) 10 per centum of the                 providers to enforce a reimbursement
      family’s monthly income;                 provision of Title XIX of the Social
      or                                       Security Act, the same Title at issue
      (3) if the family is
      receiving payments for
      welfare assistance from a                        to meet the family's
      public agency and a part of                      housing costs, the portion
      such payments, adjusted in                       of such payments which is
      accordance with the                              so designated.
      family’s actual housing
      costs, is specifically                   42 U. S. C. § 1437a (1982 ed. and Supp.
      designated by such agency                III) (emphasis added).

                                           7
here.10 According to Gonzaga                   University, the Wilder Court was
                                               persuaded because the relevant Medicaid
                                               provisions: (1) “explicitly conferred
  10                                           specific monetary entitlements upon the
    Title XIX of the Social Security Act
                                               plaintiffs”; (2) “required States to pay an
provided in relevant part:
                                               ‘objective’ monetary entitlement to
                                               individual health care providers, with no
       A State plan for medical
                                               sufficient administrative means of
       assistance must . . . provide
                                               enforcing the requirement against States
       . . . for payment . . . of
                                               that failed to comply”; and (3) because
       hospital services, nursing
                                               “Congress left no doubt of its intent for
       facility services, and
                                               private enforcement.” Gonzaga Univ.,
       services in an intermediate
                                               536 U.S. at 280-81 (quoting Wilder, 496
       care facility for the
                                               U.S. at 522-23).
       mentally retarded provided
       under the plan through the
       use of rates (determined in                    (c) Suter v. Artist M.
       accordance with methods
       and standards developed by                     In Suter, the Court foreclosed an
       the State . . .) which the              action under § 1983 brought by a class of
       State funds, and makes                  parents and children who sought to
       assurances satisfactory to              enforce provisions of the Adoption
       the Secretary, are                      Assistance and Child Welfare Act, which
       reasonable and adequate to              required that states have a “plan” to
       meet the costs which must               make “reasonable efforts” to keep
       be incurred by efficiently              children out of foster homes.11
       and economically operated
       facilities in order to
       provide care and services               Supp. V) (emphasis added).
       in conformity with
                                                 11
       applicable State and                         In Suter, the Court considered
       Federal laws, regulations,              provisions of the Adoption Assistance
       and quality and safety                  and Child Welfare Act, which provided
       standards and to assure that            in relevant part:
       individuals eligible for
       medical assistance have                        In order for a State to be
       reasonable access . . . to                     eligible for payments under
       inpatient hospital services                    this part, it shall have a
       of adequate quality.                           plan approved by the
                                                      Secretary which . . .
42 U.S.C. § 1396a(a)(13)(A) (1982 ed.,                provides that the plan shall

                                           8
According to Gonzaga University, the                    duty on the State, to be
Suter Court recognized that because the                 enforced not by private
Adoption Act “conferred no specific,                    individuals, but by the
individually enforceable rights, there was              Secretary in the manner [of
no basis for private enforcement, even by               reducing or eliminating
a class of the statute’s principal                      payments].
beneficiaries.” Gonzaga Univ., 536 U.S.
at 281 (citing Suter, 503 U.S. at 357).          Suter, 503 U.S. 363 (quoted approvingly
Writing for the Court in Suter, the Chief        by Gonzaga Univ., 536 U.S. at 281).
Justice explained:
                                                        (d) Blessing v. Freestone
       Careful examination of the
       language . . . does not                          In Blessing, the Court rejected the
       unambiguously confer an                   claim under § 1983 of five mothers
       enforceable right upon the                whose children were eligible to receive
       Act’s beneficiaries. The                  child support services from the State of
       term “reasonable efforts”                 Arizona pursuant to Title IV-D of the
       in this context is at least as            Social Security Act. 12 Title IV-D of the
       plausibly read to impose                  Social Security Act enumerated various
       only a rather generalized                 entitlements.13 Without claiming any


       be in effect in all political               12
                                                     42 U.S.C. §§ 651-69 (1996) (as
       subdivisions of the State,                amended by the Personal Responsibility
       and, if administered by                   and Work Opportunity Reconciliation
       them, be mandatory upon                   Act of 1996, Pub. L. 104-193, 110 Stat.
       them; . . .[and] provides                 2105 (“PRW OR Act”)).
       that, in each case,
                                                   13
       reasonable efforts will be                    See, for example, the following
       made (A) prior to the                     provision:
       placement of a child in
       foster care, to prevent or                       A State plan for child and
       eliminate the need for                           spousal support must . . .
       removal of the child from                        provide that the State will .
       his home, and (B) to make                        . . provide services relating
       it possible for the child to                     to the establishment of
       return to his home . . . .                       paternity . . . with respect
                                                        to . . . each child [who is
42 U. S. C. § 671(a)(3), (15) (1988 ed.                 eligible] . . . and . . .
and Supp. I) (emphasis added).                          enforce any support

                                             9
specific rights under Title IV-D, the                   Because the provision
plaintiffs asserted that “they had an                   focused on “the aggregate
enforceable individual right to have the                services provided by the
State’s program achieve ‘substantial                    State,” rather than “the
compliance’ with the requirements of                    needs of any particular
Title IV-D,” as required of the State in                person,” it conferred no
Title IV-A.14 Blessing, 520 U.S. at 333.                individual rights and thus
                                                        could not be enforced by §
       In Gonzaga University, the Court                 1983. We emphasized: “To
explained the logic of the unanimous                    seek redress through §
Blessing holding:                                       1983, . . . a plaintiff must
                                                        assert the violation of a
                                                        federal right, not merely a
                                                        violation of federal law.”
        obligation established with
        respect to [eligible
                                                 Gonzaga Univ., 536 U.S. at 281 (quoting
        children] . . . .
                                                 Blessing, 520 U.S. at 340 (emphasis in
                                                 original)). That Blessing garnered
42 U.S.C. § 654(4)(A)-(B) (1996) (as
                                                 unanimous support is not surprising: it is
amended by the PRWOR Act) (emphasis
                                                 an easy case. The plaintiffs never
added).
                                                 asserted any individual rights but,
  14
    Title IV-A of the Social Security Act        instead, attempted to enforce Congress’s
provided in relevant part:                       right to demand “substantial compliance”
                                                 with the terms of a conditional grant of
       If a State program . . . is               money. To have allowed the action to
       found . . . not to have                   proceed would have transformed § 1983
       complied substantially with               from a vehicle to vindicate personal
       the requirements of [the                  rights into a qui tam mechanism.
       program], and the Secretary
       determines that the program                       To evaluate whether Congress had
       is not complying substantially            conferred enforceable individual rights in
       with such requirements at the             a statute, the Blessing Court drew on
       time the finding is made, the             Wright, Wilder, and Suter, and
       Secretary shall reduce the                formulated a three-prong test: a statute
       grant payable to the State . . .          must (1) be intended by Congress to
       .                                         benefit the plaintiff, (2) not be “vague
                                                 and amorphous,” and (3) impose an
42 U.S.C. § 609(a)(8) (1996) (as                 unambiguous “binding obligation on the
amended by the PRWOR Act)                        States.” Blessing, 520 U.S. at 340-41.
(emphasis added).                                While in Gonzaga University the Court

                                            10
did not abandon this test, it did dispel                an injunction forcing Arizona’s child
                                                        support agency to ‘substantially comply’
        [the] confusion [that] has                      with all of the provisions of Title IV-
        led some courts to interpret                    D.”). Consequently, the Court remanded
        Blessing as allowing                            the case for a determination of whether
        plaintiffs to enforce a                         specific provisions of Title IV-D gave
        statute under § 1983 so                         rise to individual rights. Id. at 346.
        long as the plaintiff falls
        within the general zone of                             2.     Rights-Creating
        interest that the statute is                                  Language
        intended to protect;
        something less than what is                             To confer rights, Congress must
        required for a statute to                       use “rights-creating language.” Gonzaga
        create rights enforceable                       Univ., 536 U.S. at 287. Such language
        directly from the statute                       must clearly impart an “individual
        itself under an implied                         entitlement,” and have an “unmistakable
        private right of action.                        focus on the benefitted class.” Id.
                                                        (quoting Blessing, 520 U.S. at 343, and
Gonzaga Univ., 536 U.S. at 283. The                     Cannon v. University of Chicago, 441
Court clarified and “emphasize[d] that it               U.S. 677, 690-93 (1979)). Cf. Alexander
is only violations of rights, not laws,                 v. Sandoval, 532 U.S. 275, 289 (2001)
which give rise to § 1983 actions.” Id. at              (“Statutes that focus on the person
283 (citing Blessing, 520 U.S. at 340                   regulated rather than the individuals
(emphasis in original)).                                protected create ‘no implication of an
                                                        intent to confer rights on a particular
        Significantly, in Blessing the                  class of persons’”) (quoting California v.
Court did not decide that Title IV-D does               Sierra Club, 451 U.S. 287, 294 (1981)).
not, in fact, confer individual rights.
Rather, the Court concluded that                               The Chief Justice invoked the
plaintiffs had failed to assert any specific            implied private right of action cases to
rights, instead relying on the general                  demonstrate the type of “rights-creating
requirement that Arizona “substantially                 terms” that unambiguously confer rights.
comply” with its Child Welfare Plan.
Blessing, 520 U.S. at 345-46 (“We do not                       “[T]he question whether
foreclose the possibility that some                            Congress . . . intended to
provisions of Title IV-D give rise to                          create a private right of
individual rights. . . . [But,] it is not at all               action [is] definitively
apparent that respondents sought any                           answered in the negative”
relief more specific than a declaration                        where “a statute by its
that their ‘rights’ were being violated and

                                                   11
       terms grants no private                      Gonzaga Univ., 536 U.S. at 283-84.
       rights to any identifiable
       class.” Touche Ross & Co.                           As with implied private rights of
       v. Redington, 442 U.S. 560,                  action, statutory claims under § 1983
       576 (1979)). For a statute                   must be premised on an unambiguous
       to create such private                       articulation and conferral of rights by
       rights, its text must be                     Congress. 17 “[W]here the text and
       “phrased in terms of the                     structure of a statute provide no
       persons benefitted.”                         indication that Congress intends to create
       Cannon v. University of                      new individual rights, there is no basis
       Chicago, 441 U.S. 677,                       for a private suit, whether under § 1983
       692, n.13 (1979). We have                    or under an implied right of action.” Id.
       recognized, for example,                     at 286. With this in mind, the Court
       that Title VI of the Civil                   evaluated FERPA. First, and most
       Rights Act of 1964[15] and                   importantly, the Court contrasted the
       Title IX of the Education                    “individually focused” “rights-creating”
       Amendments of 1972 [16]                      language of Title VI and IX (“no person
       create individual rights                     shall be subjected to discrimination”)18
       because those statutes are                   with FERPA’s general provisions
       phrased “with an                             addressing the Secretary of Education
       unmistakable focus on the                    (“no funds shall be made available” to
       benefitted class.” Id., at
       691 (emphasis added).
                                                      17
                                                         The distinction between implied
                                                    private rights of action and § 1983
                                                    private rights of action rests not in the
  15
    Title VI provides: “No person in the            articulation of rights, but in the
United States shall . . . be subjected to           availability of a remedy. Gonzaga Univ.,
discrimination under any program or                 536 U.S. at 285 (“[T]he initial inquiry [in
activity receiving Federal financial                a private right of action under §
assistance” on the basis of race, color, or         1983]–determining whether a statute
national origin. 42 U.S.C. § 2000d                  confers any right at all–is no different
(emphasis added).                                   from the initial inquiry in an implied
                                                    right of action case, the express purpose
  16
     Title IX provides: “No person in the           of which is to determine whether or not a
United States shall, on the basis of sex . .        statute ‘confers rights on a particular
. be subjected to discrimination under              class of persons.’”) (quoting California
any education program or activity                   v. Sierra Club, 451 U.S. at 294).
receiving Federal financial assistance.”
                                                      18
20 U.S.C. § 1681(a) (emphasis added).                      See n.15 & n.16, supra.

                                               12
any “educational agency or institution”             FERPA did not confer enforceable
which has a prohibited “policy or                   rights. Id. at 289 (citing 20 U.S.C. §§
practice.”).19 Gonzaga Univ., 536 U.S. at           1232g(f)-(g)).20 Finally, the Court
287. The Court noted that “FERPA’s                  highlighted statutory language
nondisclosure provisions . . . speak only           reminiscent of that in Blessing that
in terms of institutional policy and                counseled against a finding of individual
practice, not individual instances of               rights. See id. (“Recipient institutions
disclosure.” Id. at 288. The contrast               can further avoid termination of funding
between the language of Titles VI and IX            so long as they ‘comply substantially’ . . .
and that of FERPA is stark. The                     . This, too, is not unlike Blessing, which
specific, mandatory, individually focused           found that Title IV-D failed to support a
language of Titles VI and IX confers                § 1983 suit in part because it only
individual rights, while the aggregate,             required ‘substantial compliance’ with
programmatic focus of FERPA’s                       federal regulations.”) (citing Blessing,
language merely creates law applicable              520 U.S. 329 at 335, 343).
to the states. The distinction is
dispositive: rights are enforceable under           B.        Title XIX – Step Two
§ 1983; laws are not. Gonzaga Univ.,
536 U.S. at 283 (citing Blessing, 520                      Having traced the Court’s
U.S. at 340).                                       treatment of statutory rights under §
                                                    1983, we now turn to the “text and
        Despite the clarity of the statutory        structure” of Title XIX. Gonzaga Univ.,
language, the Court went on to bolster its          536 U.S. at 286.
analysis by considering the structural
elements of FERPA, which emphasize                            1.    Statutory Text
the programmatic and aggregate focus of
the statute. Although references to the                       “We begin with the familiar canon
individual appear throughout the text of
FERPA, “[i]n each provision the
reference . . . is in the context of                     20
                                                         Understandably, the Court did not
describing the type of ‘policy or practice’         reach the issue of whether the remedial
that triggers a funding prohibition.” Id.           scheme in FERPA was sufficient to
Indeed, the fact that Congress “expressly           preclude a § 1983 suit. Gonzaga Univ.,
authorized the Secretary of Education to            536 U.S. at 590 n.8 (“We need not
‘deal with violations’ . . . and to                 determine whether FERPA’s procedures
‘establish or designate [a] review board’”          are ‘sufficiently comprehensive’ to offer
buttressed the Court’s assessment that              an independent basis for precluding
                                                    private enforcement due to our finding
                                                    that FERPA creates no private right to
  19
       20 U.S.C. § 1232g(b)(1).                     enforce.”) (citation omitted).

                                               13
of statutory construction that the starting         do so with “reasonable promptness,” and
point for interpreting a statute is the             the government does not do so. Our
language of the statute itself.” Consumer           inquiry, however, does not end there.
Product Safety Comm’n v. GTE Sylvania,              Indisputably, these provisions create law,
Inc., 447 U.S. 102, 108 (1980).                     binding on those states choosing to
                                                    accept Medicaid funding. Whether the
        Plaintiffs seek to enforce the right        same provisions confer rights,
to acquire ICF/MR services, by virtue of            enforceable by individuals, is another
42 U.S.C. §§ 1396a(a)(10)21 and                     question, and is the question we are
1396d(a)(15). 22 The language of the                called upon to answer.
statute requires that a state “must provide
. . . medical assistance . . . to . . . all                 To determine whether these
[eligible] individuals,” and includes               provisions provide plaintiffs with
intermediate care facilities in the                 unambiguously conferred rights, we
definition of “medical assistance.” 42              begin with what has come to be called
U.S.C. §§ 1396a(a)(10) & 1396d(a)(15).              the “Blessing Test.” Blessing, 520 U.S.
Plaintiffs also seek to enforce the right to        at 340-41. As discussed above, the plain
acquire ICF/MR services with                        language of the statute clearly conveys
“reasonable promptness,” as required by             that a state “must provide” plaintiffs with
42 U.S.C. § 1396a(a)(8). 23 The language            “medical assistance,” including ICF/MR
of the statute declares that a state “must          services, with “reasonable promptness.”
provide . . . assistance . . . with                 42 U.S.C. §§ 1396a(a)(10),
reasonable promptness to all eligible               1396d(a)(15), 1396a(a)(8). Without
individuals.” 42 U.S.C. § 1396a(a)(8).              difficulty, we conclude that these
                                                    provisions satisfy the Blessing Test
       In each of these provisions, the             because: (1) plaintiffs were the intended
statutory language is clear and                     beneficiaries of §§ 1396a(a)(10),
unambiguous. Indeed, we can hardly                  1396d(a)(15), and 1396a(a)(8); (2) the
imagine anyone disputing that a state               rights sought to be enforced by them are
must provide the assistance necessary to            specific and enumerated, not “vague and
obtain ICF/MR services, and that it must            amorphous”; and (3) the obligation
                                                    imposed on the states is unambiguous
  21
                                                    and binding. Id.
   For the relevant text of Section
1396a(a)(10), see note 5, supra.
                                                            But, again, our inquiry does not
  22
   For the relevant text of Section                 end there because, as is explained in
1396d(a)(15), see note 6, supra.                    Gonzaga University, the Blessing Test
                                                    may only indicate that plaintiffs “fall[]
  23
   For the relevant text of Section                 within the general zone of interest that
1396a(a)(8), see note 4, supra.                     the statute is intended to protect;

                                               14
something less than what is required for            the statutory references to the individual
a statute to create rights enforceable              appear “in the context of describing the
directly from the statute itself . . . .”           type of ‘policy or practice’ that triggers a
Gonzaga Univ., 536 U.S. at 283. To                  funding prohibition.” Gonzaga Univ.,
ensure that Congress unambiguously                  536 U.S. at 288.
conferred the rights asserted, we must
determine whether Congress used                            In requiring states which accept
“rights-creating terms.” Id. at 284.                Medicaid funding to provide ICF/MR
                                                    services with reasonable promptness,
        The Court identified the text of            Congress conferred specific entitlements
Titles VI24 and IX 25 as exemplars of               on individuals “in terms that ‘could not
rights-creating language. Gonzaga                   be clearer.’” Gonzaga Univ., 536 U.S. at
Univ., 536 U.S. at 287. Viewing Titles              280 (quoting Wright, 479 U.S. at 430).
VI and IX, we find it difficult, if not             There is no ambiguity. Where, as here,
impossible, as a linguistic matter, to              the plain meaning of the text is evident,
distinguish the import of the relevant              we need not look further to determine
Title XIX language–“A State plan must               congressional intent. See, e.g., Darby v.
provide”–from the “No person shall”                 Cisneros, 509 U.S. 137, 147 (1993)
language of Titles VI and IX. Just as in            (“Recourse to the legislative history . . .
Titles VI and IX, the relevant terms used           is unnecessary in light of the plain
in Title XIX are “mandatory rather than             meaning of the statutory text.”).26
precatory.” Blessing, 520 U.S. at 341.
Further, the “individual focus” of
Sections 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8) is unmistakable. Gonzaga                  26
                                                         We note, however, that plaintiffs
Univ., 536 U.S. at 287. The relevant                have cited legislative history that may be
Title XIX provisions enumerate the                  construed to support our reading of the
entitlements available to “all eligible             statute. See App. Br. at 20-21 (citing
individuals.” See, e.g., 42 U.S.C. §                various congressional legislative
1396a(a)(8). The provisions do not focus            materials for the proposition that Title
on “the [entity] . . . regulated rather than        XIX authorizes individual suits under §
the individuals protected.” Alexander v.            1983). See, e.g., H.R. Rep. No. 104-651,
Sandoval, 532 U.S. at 289. Neither do               at 213-14, 731-32, 2019-20 (1996); H.R.
                                                    Rep. No. 104-350, at 211, 270, 288, 1069
                                                    (1995); and H.R. Rep. No. 97-158, vol.
  24
    For the relevant text of Title VI, see          II, at 301 (1981). Because we find the
note 15, supra.                                     statute unambiguous, however, we do not
                                                    base our decision on legislative
  25
    For the relevant text of Title IX, see          materials, or otherwise pass judgment on
note 16, supra.                                     their relevance to our inquiry.

                                               15
       2.     Statutory Structure                  narrow provisions invoked by plaintiffs
                                                   gives us some pause. Indeed, the District
        “As a general rule of statutory            Court, basing its decision largely on the
construction, where the terms of a statute         structural elements of Title XIX, reached
are unambiguous, judicial inquiry is               the opposite conclusion from that we
complete.” Adams Fruit Co. v. Barrett,             reach. The District Court in large part
494 U.S. 638, 642 (1990). “General”                grounded its analysis on 42 U.S.C. §§
rules, however, are susceptible to                 1396 and 1396c, and concluded that
exceptions, and we have before us one of           those provisions do not contain the
those instances in which our inquiry does          rights-creating language required by
not end with the plain language of the             Gonzaga University. Sabree, 245 F.
statute. We recognize, of course, that             Supp. 2d at 659. Undoubtedly, the Court
“[s]tatutory construction ‘is a holistic           was correct in that regard.
endeavor,’ and, at a minimum, must
account for a statute’s full text, language              The opening section of Title
as well as punctuation, structure, and             XIX–Section 1396–is the appropriations
subject matter.” United States Nat’l               and general introductory statement of the
Bank v. Independent Ins. Agents of Am.,            Medicaid Act.27 As that Section
508 U.S. 439, 455 (1993) (quoting
United Savings Ass’n of Texas v. Timbers
of Inwood Forest Associates, Ltd., 484               27
                                                          Section 1396 provides:
U.S. 365, 371 (1988)). In Gonzaga
University, the Court instructs that not                    For the purpose of enabling
only should the text of the statute be                      each State, as far as
examined, but also its structure.                           practicable under the
Gonzaga Univ., 536 U.S. at 286. This                        conditions in such State, to
instruction makes good sense: we cannot                     furnish (1) medical
presume to confer individual rights–that                    assistance on behalf of
is a task for Congress. As the Court                        families with dependent
aptly put it, we “may play the sorcerer’s                   children and of aged, blind,
apprentice but not the sorcerer himself.”                   or disabled individuals,
Alexander v. Sandoval, 532 U.S. at 291.                     whose income and
Our judicial function is limited to                         resources are insufficient to
recognizing those rights which Congress                     meet the costs of necessary
“unambiguously confers,” and in doing                       medical services, and (2)
so we would be remiss if we did not                         rehabilitation and other
consider the whole of Congress’s voice                      services to help such
on the matter–the statute in its entirety.                  families and individuals
                                                            attain or retain capability
       Turning our sights beyond the                                              (continued...)

                                              16
explains, Title XIX was enacted “[f]or             language. Sabree, 245 F. Supp. 2d at
the purpose of enabling each State . . . to        660. Section 1396c empowers the
furnish . . . medical assistance.” 42              Secretary of HHS to suspend payments to
U.S.C. § 1396. This language says                  a state if it fails to “comply substantially”
nothing of individual entitlements or              with the requirements of Title XIX.28
rights, but reminds us that we are dealing
with an agreement between Congress and
a particular state, and recalls the axiom            28
                                                          Section 1396c provides:
of Pennhurst: “In legislation enacted
pursuant to the spending power, the
                                                            If the Secretary, after
typical remedy for state noncompliance
                                                            reasonable notice and
with federally imposed conditions is not
                                                            opportunity for hearing to
a private cause of action for
                                                            the State agency
noncompliance but rather action by the
                                                            administering or
Federal Government to terminate funds
                                                            supervising the
to the State.” Pennhurst State Sch. &
                                                            administration of the State
Hosp., 451 U.S. at 28.
                                                            plan approved under this
                                                            title, finds (1) that the plan
        Turning next, as did the District                   has been so changed that it
Court, to Section 1396(c) does not help                     no longer complies with
in the search for rights-creating                           the provisions of section
                                                            1902; or (2) that in the
                                                            administration of the plan
  27
       (...continued)                                       there is a failure to comply
           for independence or self-                        substantially with any such
           care, there is hereby                            provision; the Secretary
           authorized to be                                 shall notify such State
           appropriated for each fiscal                     agency that further
           year a sum sufficient to                         payments will not be made
           carry out the purposes of                        to the State (or, in his
           this title. The sums made                        discretion, that payments
           available under this section                     will be limited to
           shall be used for making                         categories under or parts of
           payments to States which                         the State plan not affected
           have submitted, and had                          by such failure), until the
           approved by the Secretary,                       Secretary is satisfied that
           State plans for medical                          there will no longer be any
           assistance.                                      such failure to comply.
                                                            Until he is so satisfied he
42 U.S.C. § 1396.                                                                    (continued...)

                                              17
This language not only confirms that                  difficult task. Nonetheless, it is evident,
Title XIX by its terms creates a                      at least to us, that the statutory language,
relationship between Congress and a                   despite countervailing structural
particular state, but it recalls, as well, the        elements of the statute, unambiguously
“comply substantially” language in                    confers rights which plaintiffs can
Blessing and Gonzaga University.                      enforce.
Blessing, 520 U.S. at 343; Gonzaga
Univ., 536 U.S. at 289. Of course, in                        We conclude that Section 1396,
Blessing and Gonzaga University, such                 the appropriations and general
language counseled against the                        introductory statement, cannot neutralize
recognition of an unambiguously                       the rights-creating language of Sections
conferred right.                                      1396a(a)(10), 1396d(a)(15), and
                                                      1396a(a)(8). Our confidence in this
        But while the District Court                  conclusion rests securely on the fact that
correctly recognized that Sections 1396               the Court has refrained from overruling
and 1396c do not contain the “sort of                 Wright and Wilder, which upheld the
explicit, rights-creating language found              exercise of individual rights under
in Title VI,” it did not consider the                 statutes that contain similar (or, in the
existence of rights-creating language in              case of Wilder, identical) provisions to
other relevant provisions of Title XIX.               42 U.S.C. § 1396.
Sabree, 245 F. Supp. 2d at 659. The
language used by Congress in 42 U.S.C.                       Section 1396 was in effect at the
§§ 1396a(a)(10), 1396d(a)(15), and                    time of Wilder, in which the Court
1396a(a)(8), however, explicitly creates              allowed claims to proceed under Title
rights. Admittedly, plumbing for                      XIX, and a similar provision was in
congressional intent by balancing the                 effect when the Court allowed claims to
specific language of a few discrete                   proceed in Wright. 42 U.S.C. §§ 1396 &
provisions of Title XIX against the larger            1437. But Gonzaga University did not
structural elements of the statute is a               overrule Wilder; rather, it explained that
                                                      “Congress left no doubt of its intent for
                                                      private enforcement.” Gonzaga Univ.,
  28
       (...continued)                                 536 U.S. at 280-81 (quoting Wilder, 496
           shall make no further                      U.S. at 522-23). Neither did the Court
           payments to such State (or                 overrule Wright; rather, it identified it as
           shall limit payments to                    an instance in which Congress
           categories under or parts of               “unambiguously conferred ‘a mandatory
           the State plan not affected                [benefit] focusing on the individual
           by such failure).                          family and its income.’” Gonzaga Univ.,
                                                      536 U.S. at 280 (quoting Wright, 479
42 U.S.C. § 1396c (emphasis added).                   U.S. at 430).

                                                 18
        We do not diminish the                      circumstances ‘would be inconsistent
significance of the “comply                         with Congress’ carefully tailored
substantially” language in Section 1396c.           scheme.’”) (quoting Golden State Transit
Rather, we recognize that the plaintiffs in         Corp. v. Los Angeles, 493 U.S. 103, 107
Blessing sued under a provision requiring           (1989)).
“substantial compliance” by a state. The
Court held that the plaintiffs had no such                  We note, however, that “[t]he
right in the aggregate, but specifically            burden to demonstrate that Congress has
reserved decision on whether they might             expressly withdrawn the remedy is on the
have individual rights under other                  defendant,” and that a court should “not
provisions of the statute, and remanded             lightly conclude that Congress intended
for a determination of that issue.                  to preclude reliance on § 1983 as a
Blessing, 520 U.S. at 345-46. This                  remedy” for deprivation of an
distinction makes good sense: that                  unambiguously conferred right. Golden
Congress provides a remedy for itself for           State Transit Corp., 493 U.S. at 107
non-compliance does not necessarily                 (citations omitted). Indeed, only twice
preclude a coherent and coexisting intent           has the Court found a remedial scheme
to create an enforceable right in                   sufficiently comprehensive to supplant §
individual beneficiaries. Significantly,            1983. See Middlesex County Sewerage
and unlike the plaintiffs in Blessing and           Auth. v. Nat’l Sea Clammers Ass’n, 453
Gonzaga, plaintiffs here have advanced              U.S. 1, 13, 14, 20 (1981) (“Sea
specific claims, rooted in discrete, rights-        Clammers”) (acknowledging the
creating provisions of Title XIX.                   “unusually elaborate enforcement
                                                    provisions” empowering the E.P.A.,
C.     Congressional Preclusion – Step              coupled with several provisions allowing
       Three                                        specific instances of private enforcement
                                                    of the Federal Water Pollution Control
        Even where a right has been                 Act, and concluding that Congress
unambiguously conferred, a state may                intended to preclude individual actions
rebut the presumption of the availability           not explicitly allowed); Smith v.
of § 1983 by demonstrating that                     Robinson, 468 U.S. 992, 1009-11 (1984)
Congress, either expressly or by                    (concluding that because the Education
providing a comprehensive remedial                  of the Handicapped Act permitted
scheme, intended to preclude individual             aggrieved individuals to invoke carefully
suits. See, e.g., Blessing, 520 U.S. at 346         tailored local administrative procedures
(“Because petitioner does not claim that            followed by federal judicial review,
any provision of Title IV-D expressly               Congress could not have intended
curtails § 1983 actions, she must make              individuals to bypass the enumerated
the difficult showing that allowing §               procedure and advance directly to court
1983 actions to go forward in these                 via § 1983).

                                               19
        Title XIX contains no provision            Commonwealth of Pennsylvania. That
explicitly precluding individual actions.          Congress may choose to sanction
As a result, there is a substantial burden         Pennsylvania for failure to comply with
on a state seeking to establish that               its own medical assistance plan does not
Congress has provided a comprehensive              necessarily preclude other repercussions,
remedial scheme with which individual              such as individual actions against the
actions cannot be reconciled. Title XIX            Commonwealth. Congress clearly and
does allow for a state administrative              unambiguously conferred the rights of
hearing.29 This is, however, the only              which plaintiffs have allegedly been
remedial component of Title XIX, and               deprived by Pennsylvania, and has not
clearly falls short of the comprehensive           precluded individual enforcement of
enforcement schemes seen in Sea                    those rights. Accordingly, the order of
Clammers and Smith. “[A] plaintiff’s               the District Court will be reversed, and
ability to invoke § 1983 cannot be                 this case will be remanded for further
defeated simply by ‘the availability of            proceedings in accordance with this
administrative mechanisms to protect the           Opinion.
plaintiff’s interests.’” Blessing, 520 U.S.
at 347 (quoting Golden State Transit
Corp., 493 U.S. at 106). See also Wilder,
496 U.S. at 523 (“The availability of
state administrative procedures ordinarily
does not foreclose resort to § 1983.”).

          III. CONCLUSION

       Plaintiffs have advanced specific
claims rooted in statutory text that
identify them as the intended recipients
of medical assistance from the


  29
    Section 1396a(a)(3) provides in
relevant part: “A State plan for medical
assistance must . . . provide for granting
an opportunity for a fair hearing before
the State agency to any individual whose
claim for medical assistance under the
plan is denied or is not acted upon with
reasonable promptness . . . .” 42 U.S.C.
§ 1396a(a)(3).

                                              20
Sabree v. Richman
No. 03-1226

ALITO, Circuit Judge, concurring:

        While the analysis and decision of
the District Court may reflect the
direction that future Supreme Court cases
in this area will take, currently binding
precedent supports the decision of the
Court. I therefore concur in the Court’s
decision.




                                             21
