                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CALIFORNIA ALLIANCE OF CHILD AND        
FAMILY SERVICES,
                 Plaintiff-Appellant,
                 v.
CLIFF ALLENBY, Interim Director of             No. 08-16267
the California Department of
Social Services, in his official                 D.C. No.
                                            3:06-cv-04095-MHP
capacity; MARY AULT, Deputy
                                                 OPINION
Director of the Children and
Family Services Division of the
California Department of Social
Services, in her official capacity,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
          for the Northern District of California
         Marilyn H. Patel, District Judge, Presiding

                   Argued and Submitted
         October 7, 2009—San Francisco, California

                   Filed December 14, 2009

    Before: Alfred T. Goodwin and Pamela Ann Rymer,
    Circuit Judges, and George H. Wu,* District Judge.

                  Opinion by Judge Rymer;
                  Concurrence by Judge Wu

  *The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.

                              16421
16424                 CACFS v. ALLENBY




                         COUNSEL

William F. Abrams, East Palo Alto, California, for the appel-
lant.

George Prince, Deputy Attorney General, San Francisco, Cal-
ifornia, for the appellees.


                         OPINION

RYMER, Circuit Judge:

   California Alliance of Child and Family Services, an asso-
ciation of private, non-profit agencies that provide adoption,
foster care, and group home services, appeals the summary
judgment entered in favor of Cliff Allenby, the interim direc-
tor of the California Department of Social Services (the
State). We must determine whether the State is in compliance
with the federal Child Welfare Act’s (CWA) mandate that a
participating state “cover the cost” of certain enumerated
items for foster care group homes when it pays at a rate that
is approximately 80 percent of actual 1986-1987 costs
adjusted for inflation. The district court concluded that this
substantially complies with the CWA. We disagree; the natu-
ral meaning of “cover the cost” is to pay in full, not in part.
As the State isn’t doing this, we reverse.

                               I

  The CWA, codified at 42 U.S.C. §§ 670-679b, was enacted
in 1980 and creates an opt-in scheme whereby states can
                      CACFS v. ALLENBY                     16425
receive federal funding to assist in the costs associated with
raising children who are dependants or wards of the state. To
qualify for federal funding, the state agrees to abide by certain
requirements.

   The state must first submit a plan to the Secretary of the
United States Department of Health and Human Services
(DHHS). See 42 U.S.C. § 671(a). Among other things, the
plan must “provide[ ] for foster care maintenance payments in
accordance with” other provisions of the CWA. 42 U.S.C.
§ 671(a)(1). The state must also designate a state agency to
administer the plan once approved, and must agree to amend
its plan to comply with any changes made to the CWA or
other applicable federal law. 42 U.S.C. § 671(a)(2); 45 C.F.R.
§ 1356.20(d)(1).

   The CWA further provides that any state with an approved
plan “shall make foster care maintenance payments on behalf
of each” qualifying child. 42 U.S.C. § 672(a)(1). The phrase
“foster care maintenance payments” is defined as

    payments to cover the cost of (and the cost of pro-
    viding) food, clothing, shelter, daily supervision,
    school supplies, a child’s personal incidentals, liabil-
    ity insurance with respect to a child, reasonable
    travel to the child’s home for visitation, and reason-
    able travel for the child to remain in the school in
    which the child is enrolled at the time of placement.
    In the case of institutional care, such term shall
    include the reasonable costs of administration and
    operation of such institution as are necessarily
    required to provide the items described in the pre-
    ceding sentence.

42 U.S.C. § 675(4)(A).

  California has created its own statutory scheme in an
16426                     CACFS v. ALLENBY
attempt to comply with the CWA.1 It has designated the Cali-
fornia Department of Social Services (CDSS) as the agency
responsible for administering California’s CWA plan. See
Cal. Welf. & Inst. Code §§ 11229, 11460(a). The plan calls
for CDSS to pay foster care providers on “a per child per
month rate in return for the care and supervision of the [ ]
child placed with them.” Cal. Welf. & Inst. Code § 11460(a).
“Care and supervision” is defined in such a way that it sub-
stantially mirrors the federal definition of foster care mainte-
nance payments. It covers “food, clothing, shelter, daily
supervision, school supplies, a child’s personal incidentals,
liability insurance with respect to a child, and reasonable
travel to the child’s home for visitation.” Cal. Welf. & Inst.
Code § 11460(b).

   California uses the Rate Classification Level system (RCL)
to determine the amount of the foster care maintenance pay-
ments it makes. See Cal. Welf. & Inst. Code § 11462. The
RCL uses a point system that classifies group homes in four-
teen categories—the funding they receive depends on the cat-
egory. See Cal. Welf. & Inst. Code § 11462(b), (d)-(f). A
group home’s RCL is based on “the level of care and services
that the group home operator projects will be provided during
the period of time for which the rate is being established,”
Cal. Welf. & Inst. Code § 11462(e), and payments are made
on a per child, per month basis, Cal. Welf. & Inst. Code
§ 11460(a). The rates were initially made effective on July 1,
1990, relying on data from a study of 1985 calendar year costs
and since then reflect adjustments made, starting with the
1986-1987 fiscal year, based on the California Necessities
Index (CNI). See Cal. Welf. & Inst. Code § 11462(c). The
  1
   California’s Title IV-E State Plan consists of a compilation of Califor-
nia statutes, regulations, All County Letters, All County Information
Notices, County Fiscal Letters, and other documents that are intended to
implement federal requirements for the federal foster care program in
order to claim Federal Financial Participation in payments made under the
program.
                           CACFS v. ALLENBY                           16427
CNI is a weighted average of changes in various costs of liv-
ing for low-income consumers, including food, clothing, fuel,
utilities, rent and transportation. See, e.g., Cal. Welf. & Inst.
Code § 11453(a). Thus, these annual adjustments reflect any
increase or decrease in the cost of living, as measured by one
constant calculation of inflation—the CNI. See id. Beginning
with the 2000-2001 fiscal year, the California statute has pro-
vided that “the standardized schedule of rates [for group
homes] shall be adjusted annually by an amount equal to the
CNI computed pursuant to Section 11453, subject to the avail-
ability of funds. The resultant amounts shall constitute the
new standardized schedule of rates.” Cal. Welf. & Inst. Code
§ 11462(g)(2).2

                                     II

   The Alliance accepts the State’s system for calculating
costs to be covered, but takes issue with the State’s under-
funding of foster care maintenance payments as a result of
having failed to adjust the standardized schedule of rates by
an amount equal to the CNI since 2001. Accordingly, it
brought this action, asserting that the State is violating
CWA’s mandate to cover costs, and seeking declaratory and
injunctive relief under 42 U.S.C. § 1983.

   After discovery, the parties filed cross motions for sum-
mary judgment. In a joint statement of undisputed facts they
agreed that since the inception of the RCL, the payment
schedule has increased by approximately 27 percent; that
since the 1990-1991 fiscal year, the actual costs incurred by
group homes for the care and supervision of children has
  2
   See also Cal. Welf. & Inst. Code § 11453(c)(3) (“In any fiscal year
commencing with the 2000-01 fiscal year to the 2003-04 fiscal year, inclu-
sive, when there is no increase in tax relief pursuant to the applicable para-
graph of subdivision (a) of Section 10754 of the Revenue and Taxation
Code, then any increase pursuant to subdivision (a) of this section shall be
suspended.”).
16428                      CACFS v. ALLENBY
increased by more than 27 percent; and that the CNI has
increased by approximately 59 percent since the 1990-1991
fiscal year. The State admits that as of 2005-2006, it was
making foster care maintenance payments at an amount
approximately 80 percent3 of what they would have been had
it made yearly CNI adjustments.

   The district court granted summary judgment in favor of
the State. The court concluded that the State based its initial
reimbursement standard on the statutory criteria mandated by
the federal statute. Although the court recognized that the
standard rate schedule could become so out of sync with the
cost of items listed in the CWA that the California system
would be in violation of federal law, it concluded that the pro-
cess for determining foster care payment rates remains sub-
stantially compliant given that today, the RCL provides for
about 80 percent of the costs associated with those items.
Finally, the court held that the CWA does not prohibit the
State from taking budgetary considerations into account.4

                                     III

   “We review the district court’s decision to grant summary
judgment de novo. Thus, viewing the evidence in the light
most favorable to the nonmoving party, we must determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant sub-
stantive law.” Fichman v. Media Center, 512 F.3d 1157, 1159
  3
     127 percent divided by 159 percent (the level payments would have
been at had the State followed its initial plan to tie adjustments to the CNI)
equals 79.8 percent.
   4
     The Alliance subsequently moved for reconsideration under Federal
Rules of Civil Procedure 59(e) and 60(b) on the footing that the State’s
new proposed budget would result in payments decreasing to 70 percent
of the amount group homes would have been entitled to had the State fol-
lowed the adjustment scheme it originally implemented. The district court
denied leave to file the motion because the proposed budget had not yet
been passed, making the Alliance’s new claims unripe.
                           CACFS v. ALLENBY                           16429
(9th Cir. 2008) (internal citation omitted); see also Fed. R.
Civ. P. 56(c). We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 1331.5

                                     IV

   [1] The threshold question in this case is what the CWA
actually mandates the State to do. Section 672(a)(1) provides
that the State “shall make foster care maintenance payments
on behalf of each” qualifying child—that is, “payments to
cover the cost of (and the cost of providing)” various daily
living expenses, 42 U.S.C. § 675(4)(A). We therefore must
answer two questions: (1) What does it mean to “cover”
costs? and (2) how are “costs” defined? We address each
question in turn.

   [2] In determining what it means to “cover” costs, we look
to the relevant statute for context. “In interpreting a statute,
we first look to the plain meaning of its text.” See Paul
Revere Insurance Group v. United States, 500 F.3d 957, 962
(9th Cir. 2007). Absent a definition in the statute itself, in
  5
    We note that district courts across the country have split on whether the
CWA creates a private right of action. Compare Cal. Alliance of Child &
Fam. Servs. v. Allenby, 459 F.Supp.2d 919, 922-25 (N.D. Cal. 2006) (find-
ing a private right of action under the CWA); Cal. State Foster Parent
Assoc. v. Wagner, No. C 07-05086 WHA, 2008 WL 191283 (N.D. Cal.
Jan. 22, 2008) (same); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277,
302-04 (N.D. Ga. 2003) (same); Missouri Child Care Ass’n v. Martin, 241
F.Supp.2d 1032, 1037-42 (W.D. Mo. 2003) (same), with Carson P. ex rel.
Foreman v. Heineman, 240 F.R.D. 456, 539-41 (D. Neb. 2007) (finding
no private right of action under the CWA); Olivia Y. ex rel. Johnson v.
Barbour, 351 F.Supp.2d 543, 564-65 (S.D. Miss. 2004) (same). Yet, the
state makes no argument on appeal on this point. If the question were
jurisdictional, we would nonetheless be required to raise the concern our-
selves; but the Supreme Court has stated explicitly that “whether a cause
of action exists is not a question of jurisdiction.” Burks v. Lasker, 441 U.S.
471, 476 n.5 (1979). Accordingly, our familiar rule that issues not raised
in the briefing are deemed waived, see United States v. Loya, 807 F.2d
1483, 1486-87 (9th Cir. 1987), is applicable.
16430                 CACFS v. ALLENBY
attempting to divine the meaning of a particular word we gen-
erally use the “ordinary, contemporary, common meaning.”
Wilderness Society v. U.S. Fish & Wildlife Service, 353 F.3d
1051, 1060 (9th Cir. 2003) (en banc) (internal quotation
marks omitted); see United States v. Smith, 155 F.3d 1051,
1057 (9th Cir. 1998). Here, the term “cover” and the phrase
“cover the costs” are both left undefined by the CWA. In
these circumstances, consulting common dictionary defini-
tions is the usual course. See Wilderness Society, 353 F.3d at
1061.

   [3] Various dictionaries indicate that to “cover” in the con-
text of costs means an amount sufficient to pay all the costs.
See, e.g., Concise Oxford English Dictionary 330 (Catherine
Soanes & Angus Stevenson, eds., 11th ed., Oxford Univ.
Press 2004) (“(of money) be enough to pay (a cost): there are
grants to cover the cost of materials for loft insulation”);
Webster’s Third New International Dictionary 524 (Merriam-
Webster 2002) (“to be adequate to defray or compensate”).
This comports with the common understanding of what it
means to “cover the cost.” For example, we normally under-
stand an obligation to maintain sufficient funds in a bank
account to cover checks as requiring us to provide enough
money in reserve to offset the amount of the check. Eighty
percent of the amount won’t do. On the other hand, it is easy
to imagine an alternate scenario where “cover” is qualified.
For example, parents might tell their child they will help
cover the cost of college. In such a scenario, the common
understanding would be that the parents will cover some, but
not all, of their child’s college-related expenses. But here,
because the CWA leaves “cover” unqualified, the common
understanding is that it must refer to meeting all the costs of
food, clothing, shelter, etc. See 42 U.S.C. § 675(4)(A).

   [4] The question then becomes one of measuring the cost
of those covered items. While the CWA identifies the types
of items that must be covered, it does not prescribe any partic-
ular metric to measure the cost of those items. Each state
                      CACFS v. ALLENBY                     16431
develops its own plan. California uses the RCL system to
make this determination. At the time it implemented its CWA
plan, the State looked to 1985 calendar year costs from a pilot
study for the various items, see Cal. Welf. & Inst. Code
§ 11462(c), and created separate levels for different group
homes based on the “care and services that the group home
operator projects will be provided during the period of time
for which the rate is being established,” Cal. Welf. & Inst.
Code § 11462(e). The California statute moreover provides
for yearly adjustments in the proper RCL calculation, tied to
the CNI—in other words, it makes sure if the cost of certain
items rise or fall, the RCL takes that change in cost into
account. See Cal. Welf. & Inst. Code §§ 11453(a), 11462(c).
Thus, California decided that the original RCL, as adjusted by
the CNI each year, is the cost of the basket of items the CWA
requires to be covered. It is undisputed that the State is no
longer paying this amount—rather, it is paying somewhere in
the neighborhood of 80 percent of the amount. In other words,
the CWA requires California to cover the cost of certain items
and California has developed a formula to determine what
those items cost, but is now only partially covering the cost
of those items. This runs afoul of the CWA’s mandate.

   The State’s arguments to the contrary are not persuasive. It
points out that the provision for a CNI adjustment in its CWA
plan is subject to availability of funds. However, the State dis-
avows relying on this “out” in this case; its brief represents
that “California is not using ‘lack of funds’ as an ‘excuse’ to
avoid complying with the Act.” In any event, the State devel-
oped no record to support the possibility that it skipped a
yearly CNI adjustment for lack of funds. Consequently, we
decline both parties’ invitation to express an opinion on
whether availability of funds is a proper limitation under the
CWA on the obligation to cover costs.

   The State emphasizes that the CWA does not mandate cov-
ering “actual” costs, which is true. However, this is a straw-
man as the Alliance does not contend that the State must
16432                 CACFS v. ALLENBY
cover every dime spent on the care of foster children. Rather,
its position is that the State is not paying the amount the State
itself treats as costs—that is, the RCL as adjusted each year
in accordance with the CNI—and this is what falls short of
complying with the CWA.

   The State notes that its plan has been approved by DHHS.
While also true, the record leaves us unable to say what—if
any—significance this has. For instance, the parties indicated
at argument that DHHS approves only the structure of Cali-
fornia’s plan, and does not audit what the State pays. Beyond
this we have been alerted to no action or opinion by DHHS
to which we would owe deference. See Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skid-
more v. Swift & Co., 323 U.S. 134 (1944).

   [5] In sum, the CWA does not set rates or tell states how
they are supposed to cover costs. It does not require states to
apply an index such as the CNI, or to adopt any particular sys-
tem for arriving at the amount to be reimbursed. But the CWA
does direct participating states to make foster care mainte-
nance payments that “cover the cost of” listed items such as
food, clothing, and shelter. Nothing required California to opt
in to the CWA program, but once it agreed to take federal dol-
lars, it is “bound to ‘comply with federally imposed condi-
tions.’ ” Missouri Child Care Ass’n v. Cross, 294 F.3d 1034,
1036 (8th Cir. 2002) (quoting Pennhurst State Sch. & Hospi-
tal v. Halderman, 451 U.S. 1, 17 (1981)). In our judgment
those conditions are clear—the State must pay for the cost of
listed items. 42 U.S.C. § 675(4)(A). And to do so, under the
system the State chose to follow, it must make yearly CNI
adjustments (or some other inflationary adjustment) to
account for the rise (or fall) in its standardized schedule of
rates.
                         CACFS v. ALLENBY                          16433
                                   V

   [6] The Alliance and the State dispute whether California
is in substantial compliance with the CWA.6 As a general rule,
a state that accepts federal funds with conditions attached
must strictly comply with those conditions—substantial com-
pliance will not be good enough. See Withrow v. Concannon,
942 F.2d 1385, 1386-87 (9th Cir. 1991) (requiring strict com-
pliance with a requirement in federal regulations of a review
hearing within a pre-specified number of days). The CWA
plainly attaches the condition that participating states “shall”
cover the listed costs. This said, DHHS regulations indicate
that the federal government is willing to accept “substantial
compliance” at least in some circumstances. See, e.g., 45
C.F.R. §§ 1355.39, 1356.71(c)(5). And it makes sense that
compliance cannot, as a practical matter, invariably be strict.
Thus, California’s system necessarily averages costs across
each of the fourteen categories by which it classifies group
homes, and the CNI is just a proxy for actual increases (or
decreases) in cost. Likewise, that the State’s definition of cov-
ered items for foster care maintenance payments does not pre-
cisely mirror the federal statute does not make it non-
compliant. Compare 42 U.S.C. § 675(4)(A), with Cal. Welf.
& Inst. Code § 11460(b). The State’s plan generally tracks the
federal definition of daily living expenses, making the State
substantially compliant. Beyond this, however, we have diffi-
culty seeing how payment of approximately 80 percent of the
costs of providing the listed items can qualify as substantial
compliance. The federal objective is for those costs to be cov-
ered. As 80 percent isn’t even close, and the State makes no
serious argument that it is, we hold that its foster care mainte-
nance payments do not substantially comply with the CWA.
  6
    The concept appears to have originated in Missouri Child Care Ass’n,
241 F.Supp.2d 1032, 1046 n.7 (W.D. Mo. 2003) (“While it is true that
Missouri need only be in substantial compliance with the [Act], a failure
to even consider the relevant statutory factors cannot be substantial com-
pliance.”).
16434                     CACFS v. ALLENBY
                                    VI

   [7] Because the State is not covering the costs required by
the CWA, we reverse the district court’s order granting sum-
mary judgment to the State and denying summary judgment
to the Alliance. There are no factual disputes in this case and
therefore, the Alliance is entitled to judgment as a matter of
law. We remand to the district court to determine the proper
scope of declaratory and injunctive relief.

   REVERSED and REMANDED.



WU, District Judge, concurring:

   I agree that the district court’s grant of summary judgment
should be reversed and remanded but for different reasons
than delineated in the majority’s opinion.

   Initially, the majority characterizes the Child Welfare Act
(“CWA”), 42 U.S.C. §§ 670-79b, as having a “mandate” that
a participating State “cover the cost” of certain enumerated
items for children’s foster care homes. See 42 U.S.C.
§ 675(4)(A). It then seems to suggest that it is adopting the
“natural meaning” of the term “cover the cost” which is “to
pay in full, not in part.” The majority also states that “because
the CWA leaves ‘cover’ unqualified, the common understand-
ing is that it must refer to meeting all the costs of food, cloth-
ing, shelter, etc. [emphasis added].”1 Later, the majority
indicates that it is acceptable under the CWA for a State to
create a plan which allows for an estimate of the enumerated
  1
   Paying “in full” “all” of a foster care provider’s costs for supplying
food, clothing, shelter, etc. would be comparable to reimbursing the pro-
vider’s actual expenditures for such items. However, that is not what the
majority ultimately concludes is required by the State Plan or what it finds
to be sufficient under the CWA.
                      CACFS v. ALLENBY                   16435
costs for various categories of foster care providers (such as
the Rate Classification Level or “RCL” herein) and to pay
such estimates where the plan also has a provision for annual
adjustments (such as the California Necessities Index or
“CNI” herein). I agree with the latter conclusion but cannot
concur with the initial ones. More importantly, I differ with
the majority in regards to the issues which need to be ruled
upon in this appeal.

   It is not necessary to decide what “cover the cost” means
under the CWA or for this court to determine whether “sub-
stantial compliance” with the “CWA’s cost requirements suf-
fices” in order to resolve this appeal. Further, discretion
warrants that we not do so herein. Rather, because the State
Plan requires annual CNI adjustments and California clearly
has not fully complied with that requirement (or obtained
relief from that obligation), reversal can and should be based
on that ground alone.

   “In order for a State to be eligible for payments under [the
CWA],” it must have a plan approved by the Secretary of the
Department of Health and Human Services which contains
certain prerequisites, one of which is the provision for foster
care maintenance payments. See 42 U.S.C. § 671(a). The
State Plan enacted by California and approved by the Secre-
tary requires that “[b]eginning with the 2000-01 fiscal year,
the standardized schedule of rates [for the RCL] shall be
adjusted annually by an amount equal to the CNI computed
pursuant to [Cal. Welf. & Inst. Code] Section 11453, subject
to the availability of funds.” Cal. Welf. & Inst. Code
§ 11462(g)(2). On the merits herein, everyone (including the
State) seems to accept that: 1) the State Plan enacted by Cali-
fornia pursuant to 42 U.S.C. § 671 passes muster; 2) the State
Plan requires California to include annual adjustments to the
RCL payments (although a lack of funds can affect the
increases under section 11462(g)(2)); and 3) California is not
in compliance with its Plan in regards to annual adjustments
as structured by the State and approved by the Secretary. Nev-
16436                 CACFS v. ALLENBY
ertheless, at best, all that the Plaintiff has actually shown is
that the State has failed to comply with its own statute (i.e.
Cal. Welf. & Inst. Code § 11462(g)(2)). The State has con-
ceded (and the Plaintiff does not contend otherwise) that Cali-
fornia is not using any unavailability of funds contention to
justify its failure to pay the adjusted amounts.

   The action before the Court is for violation of the CWA.
Without a provision in the CWA for a cost-of-living adjust-
ment or its equivalent, it is difficult to see how the CWA itself
is violated by the State’s conduct. The majority in fact makes
the case for this observation when it states (with emphasis
added here):

    While the CWA identifies the types of items that
    must be covered, it does not prescribe any particular
    metric to measure the cost of those items. Each state
    develops its own plan. California uses the RCL sys-
    tem to make this determination . . . . The California
    statute moreover provides for yearly adjustments in
    the proper RCL calculation, tied to the CNI — in
    other words, it makes sure if the cost of certain items
    goes up or down, the RCL takes that rise or fall in
    cost into account . . . . Thus, California decided that
    the original RCL, as adjusted by the CNI each year,
    is the cost of the basket of items the CWA requires
    to be covered . . . . In other words, the CWA requires
    California to cover the cost of certain items and Cal-
    ifornia has developed a formula to determine what
    those items cost, but is now only partially covering
    the cost of those items.

The opinion later reaffirms this point when it indicates that:
“[i]n sum, the CWA does not set rates or tell states how they
are supposed to cover costs. It does not require states to apply
an index such as the CNI, or to adopt any particular system
for arriving at the amount to be reimbursed.”
                          CACFS v. ALLENBY                           16437
   Normally, the difficult issue which would have to be
resolved herein is whether the violation of the State’s obliga-
tions under a cooperative federal-state welfare program could
give rise to a federal right enforceable by means of a 42
U.S.C. § 1983 lawsuit.2 See generally Blessing v. Freestone,
520 U.S. 329, 340-48 (1997); Suter v. Artist M, 503 U.S. 347,
350-64 (1992). However, in this case, the State in a motion to
dismiss specifically raised the issues of “whether the CWA
confers a [sic] individual right of enforcement upon plaintiff
for foster care maintenance payments” and whether the Plain-
tiff “has a private right of action under 42 U.S.C. § 1983 to
enforce the provisions of the Child Welfare Act at issue.”
California Alliance of Child and Family Services v. Allenby,
459 F.Supp.2d 919, 921-22 (N.D. Cal. 2006). The district
court answered “yes” to both of those questions in a published
decision. Id. However, the State did not file a cross-appeal as
to that decision. Moreover, as noted in footnote 5 of the
majority’s opinion, the State raised no argument on appeal as
to whether the CWA creates a private right of action in this
context. Thus, the State has effectively (but, perhaps unfortu-
nately, given the importance of those questions and that anal-
ysis) waived its right to litigate those issues and has conceded
them for purposes of this appeal.

   As noted in Pennhurst State School & Hospital v. Halder-
man, 451 U.S. 1, 28 (1981), “[i]n legislation enacted pursuant
to [Congress’s] spending power, the typical remedy for state
noncompliance with federally imposed conditions is not a pri-
vate cause of action for noncompliance but rather action by
the Federal Government to terminate funds to the State.” That
is precisely the remedy incorporated into the CWA. Further-
  2
    A “claim for violation of state law is not cognizable under § 1983.”
Cornejo v. County of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007).
“To state a claim for relief in an action brought under § 1983, [plaintiffs]
must establish that they were deprived of a right secured by the Constitu-
tion or laws of the United States, and that the alleged deprivation was
committed under color of state law.” American Mfrs. Mut. Ins. Co. v. Sul-
livan, 526 U.S. 40, 49-50 (1999).
16438                 CACFS v. ALLENBY
more, the procedure set out in the statute requires the Secre-
tary to initially consider the question of compliance and only
thereafter provides for judicial review.

  42 U.S.C. § 1320a-2a(a) and (c) state:

    (a) In general

    The Secretary, in consultation with the State agen-
    cies administering the State programs under parts B
    and E of subchapter IV of this chapter, shall promul-
    gate regulations for the review of such programs to
    determine whether such programs are in substantial
    conformity with —

          (1) State plan requirements under such parts
          B and E,

          (2) implementing regulations promulgated
          by the Secretary, and

          (3) the relevant approved State plans.

                           *****

    (c) Provisions for administrative and judicial
    review

    The regulations referred to in subsection (a) of this
    section shall —

       (1) require the Secretary, not later than 10 days
    after a final determination that a program of the State
    is not in conformity, to notify the State of —

        (A) the basis for the determination; and

      (B) the amount of the Federal matching funds (if
    any) to be withheld from the State;
                      CACFS v. ALLENBY                     16439
       (2) afford the State an opportunity to appeal the
    determination to the Departmental Appeals Board
    within 60 days after receipt of the notice described
    in paragraph (1) (or, if later, after failure to continue
    or to complete a corrective action plan); and

       (3) afford the State an opportunity to obtain judi-
    cial review of an adverse decision of the Board,
    within 60 days after the State receives notice of the
    decision of the Board, by appeal to the district court
    of the United States for the judicial district in which
    the principal or headquarters office of the agency
    responsible for administering the program is located.

Pursuant to Section 1320a-2a(a) and (c), the Secretary has
promulgated consistent regulations. See, e.g., 45 C.F.R.
§§ 1355.32, 1355.39. A full or partial review can be initiated
“at any time, based on any information, regardless of the
source that indicates that the State may no longer be operating
in substantial conformity.” 45 C.F.R. § 1355.32(c)(1).

   Given the statutory scheme whereby the issue of substantial
conformity of California’s foster care program with the CWA
(42 U.S.C. Chapter 7, Subchapter IV, Part E) and the
approved State Plan is to be first considered by the Secre-
tary’s designee and then by the Departmental Appeals Board
before review by the district court, we should be somewhat
reluctant to reach issues such as the meaning of the term
“cover the costs” and whether (and to what extent) “substan-
tial compliance” can satisfy the requirements of 42 U.S.C.
§ 675(4)(A) before the Secretary has been given the opportu-
nity to initially rule on California’s conformity/compliance.
The mere fact that the parties have chosen to litigate this case
so as to preclude that appropriate review by the Secretary
does not mean that this court should unnecessarily decide
issues which are within the Secretary’s expertise.

  In sum, it is apparently undisputed that California is not
complying with the requirements of the State Plan approved
16440                 CACFS v. ALLENBY
by the Secretary because it has failed and is currently failing
to provide the full annual adjustments in the form of CNI
increases to the RCLs for group foster care maintenance pro-
viders as required by Cal. Welf. & Inst. Code § 11462(g)(2).
Given that misfeasance/nonfeasance, it is unnecessary to
resolve what “cover the cost” in 42 U.S.C. § 675(4)(A) means
since, irrespective of any definition which we give it, in the
end California is still non-compliant with its own State Plan
and California has not sought to raise on this appeal whether
the Plaintiff can bring a private action under section 1983 to
enforce the provisions of the CWA purportedly at issue
herein. Similarly, given that the applicable statute (42 U.S.C.
§ 1320a-2a) and its concomitant regulations provide that the
Secretary is to initially determine whether a State’s program
is in “substantial conformity” with the requirements of the
CWA, its regulations and the relevant approved State Plan,
the issue of whether California’s practice (of providing only
about 80% of the full annual adjusted payments to foster care
providers) is in “substantial compliance” with the CWA
should be addressed by the Secretary before this court inter-
jects itself into the fray.

   In light of the above, I agree that the district court’s grant
of summary judgment in favor of the State should be reversed
and remanded, but for different reasons and on a much more
limited basis than pronounced in the majority’s opinion.
