                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 12-1834
                           ___________________________

 Midwest Foster Care and Adoption Association; Missouri State Foster Care and
  Adoption Board; Wesley Cauveren; Jennifer Cauveren; Kristina DesCombes;
                Tyran Murrell; Michael Paulsen; Kay Paulsen

                         lllllllllllllllllllll Plaintiffs - Appellants

                                              v.

   Brian Kincade, Director of the Department of Social Services, in his official
capacity; Candace A. Shively, Director of the Children's Division, in her official capacity

                        lllllllllllllllllllll Defendants - Appellees

                                ------------------------------

  American Civil Liberties Union Foundation of Kansas and Western Missouri;
American Civil Liberties Union of Eastern Missouri; Kansas Foster and Adoptive
Children; Missouri Foster Care and Adoptive Association; The Central Missouri
    Foster Care and Adoption Association; The Evan B. Donaldson Adoption
Institute; The North American Council on Adoptable Children; Children's Rights

                    lllllllllllllllllllllAmici on Behalf of Appellants

 State of Alaska; State of Arizona; State of Arkansas; State of Colorado; State of
      Hawaii; State of Indiana; State of Kansas; State of Maryland; State of
 Massachusetts; State of Michigan; State of Nebraska; State of Nevada; State of
New York; State of North Dakota; State of Rhode Island; State of South Carolina;
              State of Utah; State of Washington; State of Wyoming

                     lllllllllllllllllllllAmici on Behalf of Appellees
                                         ____________
                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 15, 2012
                               Filed: April 8, 2013
                                  ____________

Before SMITH, BEAM, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

       Six individual foster care providers and two organizations representing
Missouri foster care providers (collectively, “Providers”) brought a suit against
officials of the State of Missouri (“the State”) who oversee the State’s foster care
program. The Providers asserted that the Adoption Assistance and Child Welfare Act
of 1980 (“CWA”), 42 U.S.C. § 670 et seq., gave them a privately enforceable right
under 42 U.S.C. § 1983 to receive payments from the State sufficient to cover the cost
of certain statutorily enumerated components of foster care. The district court1 held
that the CWA provisions the Providers invoked were not privately enforceable and
dismissed their complaint for failure to state a claim. For the reasons discussed
below, we affirm the district court.

                                          I.

       The CWA is a piece of Spending Clause legislation that creates a cooperative
state-federal program to fund foster care and adoption assistance. Mo. Child Care



      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

                                         -2-
Ass’n v. Cross, 294 F.3d 1034, 1036 (8th Cir. 2002).2 State expenditures are eligible
for partial reimbursement with federal matching funds only if the state incurs them
within the constraints set forth in the CWA. A state must enact a plan for organizing
and operating its foster care program and then submit the plan to the Secretary of
Health and Human Services (“Secretary”) for approval. 42 U.S.C. § 671(a). The
Secretary must “promulgate regulations for the review of such programs to determine
whether” there is “substantial conformity” between the terms of the state plan and
federal requirements, as well as between the state plan as written and the way in
which it is implemented. 42 U.S.C. § 1320a-2a(a). If “there is a substantial failure
to so conform,” the Secretary is directed to take corrective measures, including
withholding federal matching funds. § 1320a-2a(b). States failing to substantially
conform must be given an opportunity to “adopt and implement a corrective action
plan, approved by the Secretary,” during which time the withholding of federal
matching funds is suspended. § 1320a-2a(b)(4).




      2
        In Cross, we analyzed whether the State could invoke its Eleventh
Amendment sovereign immunity in defense of a § 1983 suit to enforce provisions of
the CWA. We determined that the CWA does not have the type of comprehensive
remedial scheme indicative of a congressional intent to foreclose suits brought against
state officials in their official capacities for violations of the Constitution or federal
law. Cross, 294 F.3d at 1039; see also Ex parte Young, 209 U.S. 123, 149-59 (1908)
(holding that the Eleventh Amendment does not bar suits seeking prospective
injunctive relief against state officials in their official capacities for the violation of
federal law); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996) (“[W]here
Congress has prescribed a detailed remedial scheme for the enforcement against a
State of a statutorily created right, a court should hesitate before casting aside those
limitations and permitting an action against a state officer based upon Ex parte
Young.”). The availability of state sovereign immunity was the sole issue presented
during the interlocutory appeal in Cross, and we did not have occasion to determine
which sections of the CWA, if any, could be individually enforced by foster care
providers.

                                           -3-
       One of the required characteristics of each state plan is that it “provides for
foster care maintenance payments in accordance with section 672.” § 671(a)(1).
Section 672, in turn, describes how “[e]ach state” with an approved plan “shall make
foster care maintenance payments on behalf of each child who has been removed
from the home of a relative . . . if the removal and foster care placement”
requirements are met and the child would have otherwise qualified for assistance
under the now-defunct Aid to Families with Dependent Children program. § 672(a).
Subsection (b) sets forth “[a]dditional qualifications,” which limit the individuals or
entities eligible to receive foster care maintenance payments. These payments “may
be made . . . only on behalf of a child” who is eligible under § 672(a) and is in either
“the foster family home of an individual” or “a child-care institution.” § 672(b).
Three classes of recipients are referenced: individuals, public or private “child-care
agenc[ies],” and “child-care institution[s].” Id. A state can receive federal matching
funds—at a rate equal to its Medicaid matching rate—only for those foster care
maintenance payments meeting the foregoing requirements of § 672. See § 674(a)(1).
Section 675, the “Definitions” section of the CWA, defines “foster care maintenance
payments” as:

      payments to cover the cost of (and the cost of providing) food, clothing,
      shelter, daily supervision, school supplies, a child’s personal incidentals,
      liability insurance with respect to a child, reasonable travel to the child’s
      home for visitation, and reasonable 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 preceding sentence.

§ 675(4)(A).

      The State interprets these CWA provisions as constraining the potential types
of payment recipients and imposing a ceiling on the types of expenses for which the


                                          -4-
federal government is willing to provide matching funds. In contrast, under the
Providers’ reading, § 672(a) endows eligible foster care providers with an
individually enforceable federal right to payments sufficient to cover every element
of care listed in § 675(4)(A). It is this alleged right they seek to enforce through
§ 1983, by requesting both a declaratory judgment that the State is violating the CWA
through inadequate foster care maintenance payments and an injunction requiring the
State to adopt and implement a methodology that will result in a higher, “lawful”
level of payments.

       “Section 1983 provides a federal cause of action against anyone who, acting
pursuant to state authority, violates any ‘rights, privileges or immunities secured by
the Constitution and laws’ of the United States.” Pediatric Specialty Care, Inc. v.
Ark. Dep’t of Human Servs., 293 F.3d 472, 477 (8th Cir. 2002) (quoting 42 U.S.C.
§ 1983). However, § 1983 holds out a mechanism to vindicate only “the violation of
a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520
U.S. 329, 340 (1997). “[I]t is rights, not the broader or vaguer ‘benefits’ or
‘interests,’ that may be enforced under [§ 1983].” Gonzaga Univ. v. Doe, 536 U.S.
273, 283 (2002). Where a statute merely gives individuals a general benefit or
enhances their interest in having the state meet its statutory responsibilities, plaintiffs
seeking to force compliance with funding conditions must utilize “the typical
remedy” of pursuing “action by the Federal Government to terminate funds to the
State.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981).

       In Blessing, the Supreme Court created a three-part test for determining
whether a statute creates an individually enforceable federal right. This test requires
us to analyze whether “(1) Congress intended the statutory provision to benefit the
plaintiff; (2) the asserted right is not so ‘vague and amorphous’ that its enforcement
would strain judicial competence; and (3) the provision clearly imposes a mandatory
obligation upon the states.” Lankford v. Sherman, 451 F.3d 496, 508 (8th Cir. 2006)
(quoting Blessing, 520 U.S. at 340). If a plaintiff demonstrates that a statute meets

                                           -5-
all three parts of the Blessing test, it is presumptively enforceable under § 1983.
Blessing, 520 U.S. at 341. Defendants can rebut this presumption by showing either
that Congress explicitly foreclosed a remedy under § 1983 or implicitly did so, “by
creating a comprehensive enforcement scheme that is incompatible with individual
enforcement.” Id.

        After observing some “confusion” among courts applying the Blessing test, the
Supreme Court subsequently clarified the first prong and “reject[ed] the notion that
[its earlier] cases permit anything short of an unambiguously conferred right to
support a cause of action brought under § 1983.” Gonzaga, 536 U.S. at 283; see also
Lankford, 451 F.3d at 508. Requiring Congress to speak clearly when it intends to
create new rights enforceable under § 1983 is no mere tool of convenience. Rather,
it reflects the values of “Our Federalism”3—often invoked in the implied-right-of-
action context—that if a state is to be subject to private suits whenever it fails to meet
a funding condition, Congress should clearly put the state on notice. See Gonzaga,
536 U.S. at 286 & n.5; Pennhurst, 451 U.S. at 17 (“The legitimacy of Congress’
power to legislate under the spending power thus rests on whether the State
voluntarily and knowingly accepts the terms of the ‘contract.’ . . . By insisting that
Congress speak with a clear voice, we enable the States to exercise their choice
knowingly, cognizant of the consequences of their participation.”); see also Bond v.
United States, 564 U.S. ---, 131 S. Ct. 2355, 2364 (2011) (“Federalism is more than
an exercise in setting the boundary between different institutions of government for
their own integrity. ‘State sovereignty is not just an end in itself: “Rather, federalism
secures to citizens the liberties that derive from the diffusion of sovereign power.”’”
(quoting New York v. United States, 505 U.S. 144, 181 (1992))). Furthermore, this
case presents the potential for a federal court to instruct the State’s elected


      3
       Younger v. Harris, 401 U.S. 37, 44 (1971) (describing the concept of “Our
Federalism” as “a system in which there is sensitivity to the legitimate interests of
both State and National Governments”).

                                           -6-
representatives to increase appropriations to the State’s foster care program.
Requiring clarity, then, seems particularly prudent. Cf. Gregory v. Ashcroft, 501 U.S.
452, 461 (1991) (“This plain statement rule is nothing more than an acknowledgment
that the States retain substantial sovereign powers under our constitutional scheme,
powers with which Congress does not readily interfere. In a recent line of authority,
we have acknowledged the unique matter of state decisions that ‘go to the heart of
representative government.’” (quoting Sugarman v. Dougall, 413 U.S. 634, 647
(1973)). Bearing these principles in mind, we turn to analyzing whether § 672(a) and
§ 675(4)(A) confer individually enforceable federal rights on the Providers.

                                          II.

       When the Supreme Court applied the first prong of the Blessing test in
Gonzaga, it focused on three factors. First, the Court searched the asserted statutory
provisions for “‘rights-creating’ language,” in other words text framed in terms of the
individuals who benefit, rather than the persons or institutions that are regulated.
Gonzaga, 536 U.S. at 287 (quoting Alexander v. Sandoval, 532 U.S. 275, 288
(2001)). Second, the Court considered whether the contested statutory language
manifested an “‘aggregate’ focus,” instead of being “concerned with ‘whether the
needs of any particular person have been satisfied.’” Id. (quoting Blessing, 520 U.S.
at 343). Finally, the Court examined whether Congress provided a federal review
mechanism. See id. at 289-90; see also 31 Foster Children v. Bush, 329 F.3d 1255,
1270 (11th Cir. 2003). We analyze the asserted rights-creating provisions through
the lens of these factors. Our review of a district court’s decision regarding the
existence of an individually enforceable federal right is de novo. Ctr. for Special
Needs Trust Admin., Inc. v. Olson, 676 F.3d 688, 699 (8th Cir. 2012).




                                         -7-
      A. Rights-creating language

       First, we note the absence of any rights-creating language in the relevant
portions of the CWA. “Statutes that focus on the person regulated rather than the
individuals protected” do not tend to create enforceable rights. Gonzaga, 536 U.S.
at 287 (quoting Sandoval, 532 U.S. at 289). Gonzaga cited Title VI of the Civil
Rights Act of 1964 and Title IX of the Education Amendments of 1972 as classic
examples of rights-creating language. See id. (citing 42 U.S.C. § 2000d (“No
person . . . shall . . . be subjected to discrimination”); 20 U.S.C. § 1681(a) (same)).
The Court then contrasted the statutory language at issue in Sandoval, which
described how “each Federal department and agency . . . is authorized and directed
to effectuate the provisions of section 2000d.” See id.; 42 U.S.C. § 2000d-1.
Gonzaga addressed a section of the Family Educational Rights and Privacy Act of
1974 (“FERPA”), and it viewed the relevant language4 as more like that of Sandoval
than Titles VI or IX because the focus—the conditions under which the Secretary of
Education is prohibited from disbursing funds to educational institutions—was “two
steps removed from the interests of [the] individual students and parents” filing suit.
See Gonzaga, 536 U.S. at 287.

        We view the focus of § 672(a) and § 675(4)(A) as similarly “removed” from
the interests of the Providers. Sections 672(a) and 675(4)(A) speak to the states as
regulated participants in the CWA and enumerate limitations on when the states’



      4
        “No funds shall be made available under any applicable program to any
educational agency or institution which has a policy or practice of permitting the
release of education records . . . of students without the written consent of their
parents to any individual, agency, or organization . . . .” 20 U.S.C. § 1232g(b)(1).
After a school released a student’s personal information to a statutorily unauthorized
person, the student asserted an individually enforceable right under § 1983 to sue the
school for violating FERPA’s nondisclosure provision. Gonzaga, 536 U.S. at 277.

                                         -8-
expenditures will be matched with federal dollars; they do not speak directly to the
interests of the Providers.

       First, we do not interpret § 675(4)(A) as listing a mandatory set of costs that
must be fully covered by a state’s foster care maintenance payments in order for the
payments to be matched with federal funds. Finding an enforceable right solely
within a purely definitional section is antithetical to requiring unambiguous
congressional intent. See 31 Foster Children, 329 F.3d at 1271 (explaining that
where sections “are definitional in nature, they alone cannot and do not supply a basis
for conferring rights enforceable under § 1983”). Instead, we construe this list as a
ceiling imposed by Congress on the categories of foster care costs eligible for partial
federal reimbursement. Section 675(4)(A) is part of an open-ended entitlement
program, and when viewed in this context, it seems natural that Congress would
choose to place limitations on the type of state expenditures it matches. Prior to the
adoption of the CWA in 1980, there was no statutory definition of foster care
maintenance payment. H.R. Conf. Rep. 96-900 (1980), reprinted in 1980
U.S.C.C.A.N. 1561, 1570. Responding to “general confusion about what can be
called a foster care maintenance payment,” the Senate then crafted a definition, which
was codified at § 675(4)(A). S. Rep. 96-336 (1980), reprinted in 1980 U.S.C.C.A.N.
1448, 1464 (emphasis added). In sum, the definition of “foster care maintenance
payments” found in § 675(4)(A) amounts to a funding condition that limits the
expenses for which a state may seek reimbursement.5

      5
        Indeed, the Secretary also views this provision as a limitation directed at
participating states: in the definitional section of the regulations promulgated to
implement the CWA, the components of foster care maintenance payments are
referred to as “allowable expense[s].” 45 CFR § 1355.20(a). We are cognizant of the
responsibility to tether our analysis to congressional intent, rather than an agency’s
implementing regulations. See Gonzaga, 536 U.S. at 283; see also Save Our Valley
v. Sound Transit, 335 F.3d 932, 939-40 (9th Cir. 2003). However, the Secretary’s
long-standing interpretation of this enumerated list as a constraint on the scope of a
state’s claim for matching funds buttresses our own determination that Congress did

                                         -9-
       Even importing the full definition of “foster care maintenance payments” from
§ 675(4)(A) into § 672(a), we do not read the resulting conglomeration as embodying
rights-creating language entitling the Providers to payments sufficient to cover every
delineated cost. The Providers and the dissent place emphasis on only the first
portion of § 672(a)(1), which describes how “[e]ach State with a plan approved under
this part shall make foster care maintenance payments [as defined in § 675(4)(A)] on
behalf of each child . . . .” See infra p. 22. Section 672(a)(1) then proceeds, however,
to set forth a series of factors that curtail the situations in which state plans “shall
make foster care maintenance payments”: the child must have been “removed from
the home of a relative specified in section 606(a)”; both the removal and foster care
placement must have met, and continue to meet, the requirements of § 672(a)(2); and
the child must be one who would have met the income-related eligibility requirements
in § 672(a)(3). Thus, although § 672(a)(1) requires participating state plans to remit
foster care maintenance payments in certain contexts, the overwhelming focus is upon
the conditions precedent that trigger this obligation. The function of § 672(a) is to
serve as a roadmap for the conditions a state must fulfill in order for its expenditure
to be eligible for federal matching funds; otherwise, the state bears the full cost of
these payments.6 See § 674(a)(1) (describing how states with approved plans are


not use rights-creating language.
      6
        The dissent cites Wagner for the proposition that “a state must ‘make foster
care maintenance payments “on behalf of each child” qualifying for foster care.’”
Infra p. 22 (quoting Wagner, 624 F.3d at 979-80). To the extent this implies that the
CWA requires the State to make foster care maintenance payments to providers on
behalf of each child who qualifies for care under the state’s foster care program, we
disagree. Section 671(a)(1) requires state plans to make foster care maintenance
payments “in accordance with section 672.” In turn, § 672(a) requires states to make
foster care maintenance payments only on behalf of those children who meet the
statutory restrictions. The dissent seems to implicitly concede this point when it
subsequently remarks that “the state may only make ‘foster care maintenance
payments . . . on behalf of a qualifying child.’” Infra p. 22 (omission in original)
(emphasis added) (quoting Wagner, 624 F.3d at 980). Nor are the CWA’s limitations

                                         -10-
entitled to receive federal matching funds for “the total amount expended . . . as foster
care maintenance payments under section 672”). The title of § 672(a)(1),
“Eligibility,” is thus an apt descriptor of the subsection’s focus—it sets forth
limitations on when a foster care maintenance payment is eligible for partial federal
reimbursement. The remainder of § 672(a) defines and expands upon the eligibility
limitations in § 672(a)(1). The asserted provisions inescapably serve to establish
restrictions on the state foster care expenditures that will be eligible for federal
matching. This focus on the states as regulated entities evinces, as in Gonzaga, a
degree of removal from the interests of the Providers.

       The Providers argue that Wilder v. Virginia Hospital Ass’n, 496 U.S. 498
(1990), compels a finding of an individually enforceable right. Our contrary
conclusion, however, does not contradict Wilder. In Wilder, the Supreme Court
analyzed text from section 1902(a)(13) of the Medicaid Act, as amended by the Boren
Amendment: “A State plan for medical assistance must provide . . . for payment [of
medical services] through the use of rates . . . which the State finds . . . are reasonable
and adequate to meet the costs which must be incurred by efficiently and
economically operated facilities in order to provide care and services in conformity
with applicable State and Federal laws, regulations, and quality and safety
standards . . . .” Wilder, 496 U.S. at 502-03 (quoting 42 U.S.C. § 1396a(a)(13)(A)
(emphasis removed)). The Court interpreted section 1902(a)(13) of the Medicaid Act
as giving health care providers an individually enforceable right to reimbursement
from participating states at “reasonable and adequate” rates. Id. at 515. Both Wilder


merely pro forma conditions. During the years 1999-2001, foster care for an average
of only 43.7 percent of the foster children in Missouri was eligible for federal
subsidy. The remaining foster children were supported solely through state or local
funds. Staff of H. Comm. on Ways and Means, 108th Cong., Background Material
and Data on the Programs Within the Jurisdiction of the Comm. on Ways and Means,
§ 11-20, available at http://www.gpo.gov/fdsys/pkg/GPO-CPRT-108WPRT108-6/
pdf/GPO-CPRT-108WPRT108-6-2-11.pdf.

                                           -11-
and this case involve state-federal matching programs in which state payments to the
providers of certain services must fulfill statutory requirements in order to be eligible
for federal matching. And as in the CWA, the health care providers filing suit were
referenced only insofar as they were the sub silentio recipients of the payments
discussed. But unlike the CWA sections at issue here, the relevant provisions in the
Medicaid Act did not focus on defining the conditions that must be met in order for
a participating state’s expenditures to be eligible for federal matching funds and,
therefore, did not evince the degree of removal we now confront.

        The dissent and our colleagues on the Ninth Circuit identified a congressional
intent that foster parents benefit from the receipt of foster care maintenance payments.
See Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 981 (9th Cir. 2010);
infra p. 23 (quoting Wagner, 624 F.3d at 979). We do not disagree with this finding,
but we do diverge as to its consequence. The ability to locate a nexus between § 1983
plaintiffs and a benefit conferred by a statute is necessary but not sufficient; the
statutory text also “must be ‘phrased in terms of the persons benefitted.’” Gonzaga,
536 U.S. at 284 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13 (1979); see
also Walters v. Weiss, 392 F.3d 306, 313 (8th Cir. 2004) (holding that 42 U.S.C.
§ 657(a) does not create an individually enforceable federal right, even though
“§ 657(a) reflects some congressional intent to benefit custodial parents”). This
requirement ensures that § 1983 is available only to those asserting a violation of
federal rights, rather than federal laws. Section 1983 is not a quasi-qui tam
mechanism, capable of being leveraged by individuals “within the [statute’s] general
zone of interest” into a vehicle for policing state compliance with federal programs.
See Gonzaga, 536 U.S. at 283. The unmistakable focus of § 672(a) and § 675(4)(A)
on the states as regulated participants in this federal cost-sharing program precludes
us from finding that these provisions are “phrased in terms of the [Providers].” See
id. at 284. Where the statutory language primarily concerns itself with commanding
how states are to function within a federal program, the statute is less likely to have
created an individually enforceable right. See Walters, 392 F.3d at 313 (finding no

                                          -12-
individually enforceable right to “strict compliance with [the] terms” of 42 U.S.C.
§ 657 because the statute “focuses on the relationships between different federal
programs and provides guidelines for state agencies”).

      B. Aggregate focus

        Statutes with an “aggregate,” rather than an individual, focus “cannot ‘give
rise to individual rights.’” Gonzaga, 536 U.S. at 288 (quoting Blessing, 520 U.S. at
344). Examining both “the text and structure” of the asserted provisions, as Gonzaga
instructs us to do, id. at 286, we discern an aggregate focus “not concerned with
‘whether the needs of any particular [foster care provider] have been satisfied.’” See
id. at 288 (quoting Blessing, 520 U.S. at 343).

       Because the State has “availed itself of the funds offered by Congress through
the CWA,” it must comply with the CWA’s funding conditions, including the creation
of a state plan for foster care provision that contains § 671(a)’s “[r]equisite features”
and is approved by the Secretary.7 Cross, 294 F.3d at 1036. A statutory provision
located in Title 42, Chapter 7—which encompasses the CWA—cannot be deemed
individually unenforceable solely because of its situs in a larger regime “requiring a
State plan or specifying the required contents of a state plan” (the so-called “Suter
fix”). 42 U.S.C. § 1320a-2; see also Carson P. ex rel. Foreman v. Heineman, 240
F.R.D. 456, 538-39 (D. Neb. 2007). Thus, a statute could not be considered to have
an aggregate focus simply because, as here, it requires states to engineer a plan
governing their participation in a federal matching program that inures to the
advantage of an entire group of beneficiaries.




      7
        The State’s Department of Social Services is the designated administrator of
the State’s plan and is responsible for ensuring the State’s compliance with the CWA.
Cross, 294 F.3d at 1036 (citing Mo. Rev. Stat. §§ 207.010, 207.060, 660.010 (2000)).

                                          -13-
       But when a statute links funding to substantial compliance with its
conditions—including forming and adhering to a state plan with specified
features—this counsels against the creation of individually enforceable rights. See
Gonzaga, 536 U.S. at 288. As in Gonzaga, the federal funding tied to the asserted
CWA provisions is conditioned on a backstop substantial compliance requirement.
Perfect compliance is not demanded, but states risk diminution or termination of
funding if they fail to be “in substantial conformity” with the CWA’s funding
conditions. See § 1320a-2a. A substantial compliance regime cuts against an
individually enforceable right because, even where a state substantially complies with
its federal responsibilities, a sizeable minority of its beneficiaries may nonetheless fail
to receive the full panoply of offered benefits. Focusing on substantial compliance
is tantamount to focusing on the aggregate practices of a state funding recipient.
Nevertheless, Wilder identified an enforceable right to “reasonable and adequate”
reimbursement rates, despite a substantial compliance requirement in the Medicaid
statute. See 42 U.S.C. § 1396c. Thus, while a substantial compliance regime may
suggest an absence of the requisite congressional intent, it cannot by itself establish
an aggregate focus. See Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 192 (3d Cir.
2004).

       In addition to the existence of a substantial compliance funding condition,
another indicator of an aggregate focus occurs where “each . . . reference to [the
asserted individual right] is in the context of describing the type of [action] that
triggers a funding prohibition.” Gonzaga, 536 U.S. at 288-89 (citing § 1232g(b)(1)-
(2)). For example, FERPA mandated that “[n]o funds shall be made available” to
educational institutions with a certain “policy or practice” of releasing student
information. Id. at 279. Correspondingly, the ostensible rights-creating language in
Gonzaga was couched in terms of the recipient behaviors that would be deemed
inconsistent with a claim to funding under the statute, and this contributed to the
Court’s conclusion that the asserted right was not individually enforceable.



                                           -14-
       Where the Supreme Court has found individually enforceable rights, they have
not been ensconced by references to actions that trigger such a funding prohibition.
For example, the relevant statutory language in Wilder did not mention “reasonable
and adequate” Medicaid reimbursement rates in the context of actions that would
cause a state to lose Medicaid funding. See Wilder, 496 U.S. at 502-03 (quoting 42
U.S.C. § 1396a(a)(13)(A)). Instead, the statute discussed the rates in terms of
ensuring that the amounts would be sufficient to allow efficient health care providers
to meet quality-of-care requirements imposed by other state and federal laws and
regulations. The statutory provision the Court found enforceable in Wright v. City of
Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987), is similar to
Wilder in this regard. The Brooke Amendment to the United States Housing Act
stated that a family living in a public housing project “shall pay as rent . . . the highest
of the following amounts.” Wright, 479 U.S. at 420 & n.2 (1987) (quoting Pub. L.
No. 97-35, § 322, 95 Stat. 357, 400 (1981)). Again, the asserted right to pay no more
than the statutorily specified amounts was not situated within a discussion of the
actions by local public housing authorities that would trigger prohibitions on their
claims to federal matching funds.

      In this regard, we view § 672(a) and § 675(4)(A) to be more like the statutory
language at issue in Gonzaga than that of the statutes at issue in Wilder or Wright.8
Admittedly, § 672(a) and § 675(4)(A) do not explicitly proclaim “no funds shall be

       8
        The dissent goes to great lengths to point out that Wilder remains good law.
Infra pp. 23-24. We agree of course, but we find Wilder to be distinguishable. As
we have discussed, two distinctions are particularly relevant. First, the CWA
provisions at issue fail to use rights-creating language because they focus on the rules
governing state participation, which bears a degree of removal from the interests of
the Providers. See supra p. 11. Second, as the previous paragraph explains, the
payments in Wilder were not, as here, discussed in the context of conditions that
would trigger program funding restrictions. Although the dissent avers that Wilder
should not be “so easily set aside,” the balance of the dissent’s critique involves the
district court’s treatment of Wilder, rather than our own. See infra pp. 23-24.

                                           -15-
made available to match a state’s foster care maintenance payments if the state has
certain reimbursement policies or practices,” as the exact analogue of the statute at
issue in Gonzaga would. See Gonzaga, 536 U.S. at 279. But in effect they do just
that, by saying “[e]ach state . . . shall make foster care maintenance payments on
behalf of each child . . . if” certain subsequently enumerated conditions are met, and
§ 674(a)(1) establishes that matching funds are not otherwise available. In other
words, the failure to meet the requirements of § 672(a) “triggers a funding
prohibition,” and the asserted right is only mentioned in the context of these funding
prohibitions. This is further evidence of an aggregate focus.9

      C. Federal enforcement mechanism

       Finally, Gonzaga found that the existence of a centralized federal review
mechanism for individuals asserting statutory violations further weighed against a
congressional intent to create individually enforceable rights through the courts.
Gonzaga, 536 U.S. at 289-90. In contrast, although the CWA “provides for oversight
and funding restrictions that may be imposed by the Secretary” on the participating
states, there is no direct federal review of the claims of individual providers. Cross,
294 F.3d at 1038. Instead, the CWA delegates oversight of individual grievances to
the states. State plans are required to offer administrative review opportunities to
“any individual whose claim for benefits . . . is denied or is not acted upon with
reasonable promptness.” § 671(a)(12). Additionally, each state plan must “provide[]
for periodic review of . . . amounts paid as foster care maintenance payments . . . to
assure their continuing appropriateness.” § 671(a)(11). Federal review is limited to


      9
        The dissent points out that as a result of the Suter Fix, § 672(a) and
§ 675(4)(A) cannot be held individually unenforceable merely because they are
“embedd[ed] . . .into ‘the requirements for a state plan.’” Infra p. 23 (quoting Connor
B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 171 (D. Mass. 2011)). We have not
argued otherwise. See supra p. 14. Instead, as we have discussed, other factors
persuade us that these CWA provisions have an aggregate focus.

                                         -16-
auditing states for substantial compliance with these and other requirements. See
§ 1320a-2a.

       Despite the relative lack of federal review opportunities, however, the other
elements of Gonzaga’s analysis of Blessing’s first prong strongly tilt against the
finding of an unambiguous intent to create an individually enforceable right. We
reject the notion that a failure to provide a federal enforcement mechanism equal to
the one considered in Gonzaga is sufficient to overcome the weight of these
competing considerations. See 31 Foster Children, 329 F.3d at 1273. Because the
Providers have failed to show a “clear and unambiguous” congressional intent to the
asserted right, we need not analyze the remaining Blessing factors. See Gonzaga, 536
U.S. at 290-91.

                                         III.

       We respect the important service the Providers are conferring upon their
communities and the children in their care. But, as with most legislation enacted
pursuant to the Spending Clause, the Providers’ federal remedy is to seek termination
of matching funds as a consequence for a state’s shortcomings. The Providers argue
that the Secretary has failed to review adequately the State’s plan or impose sanctions
for nonconformity, relegating them to the pursuit of other means of enforcing
compliance. But the manner in which the Secretary has chosen to oversee this federal
matching program has little bearing on the task at hand. Our job is to determine
whether Congress, in enacting the CWA, evinced a clear intent to grant foster care
providers an individually enforceable right to foster care maintenance payments
sufficiently large to cover the cost of each item enumerated in § 675(4)(A). We hold
that Congress did not unambiguously confer such a right and, therefore, we affirm the
district court’s dismissal of the Providers’ complaint for failure to state a claim.




                                         -17-
SMITH, Circuit Judge, dissenting.

       I respectfully dissent from the majority's holding that the CWA provisions at
issue do not confer upon the Providers "a privately enforceable right under 42
U.S.C. § 1983 to receive payments from the State sufficient to cover the cost of
certain statutorily enumerated components of foster care." Consistent with the
majority of courts to have addressed the issue, I would "hold that §§ 672(a) and
675(4)(A) of the [CWA] establish a presumptively enforceable right under § 1983 to
foster care maintenance payments from the State that cover the cost of the expenses




                                       -18-
enumerated in § 675(4)(A)." Wagner, 624 F.3d at 982.10 Therefore, I would reverse
the district court's dismissal of the Providers' complaint for failure to state a claim.

                                      I. Discussion
       "Section 1983 imposes liability on anyone who, under color of state law,
deprives a person 'of any rights, privileges, or immunities secured by the Constitution
and laws.'" Blessing, 520 U.S. at 340 (quoting 42 U.S.C. § 1983). The Supreme Court
has recognized that § 1983 "safeguards certain rights conferred by federal statutes."


      10
         See also Foster Parents Ass'n of Wash. State v. Dreyfus, No. C11-5051 BHS,
2013 WL 496062, at *3 (W.D. Wash. Feb. 7, 2013) (slip copy) (holding that "[t]he
expenses are clear and the right to reimbursement is clear" under §§ 672(a) and
675(4)(A); therefore, foster parents had a federal right to enforce); Sam M. ex rel.
Elliott v. Chafee, 800 F. Supp. 2d 363, 387 (D.R.I. 2011) (agreeing with the
"conclu[sion] that the [CWA] provisions [of §§ 672(a)(1) and 675(4)(A)] satisf[y] all
three Gonzaga factors and, therefore, create privately enforceable rights to case plans
and foster care maintenance payments"); Connor B. ex rel. Vigurs v. Patrick, 771 F.
Supp. 2d 142, 172 (D. Mass. 2011) ("[A]pplication of the Gonzaga factors makes it
clear that Congress intended to create privately enforceable rights to . . . foster care
maintenance payments under the [CWA]."); C.H. v. Payne, 683 F. Supp. 2d 865, 877
(S.D. Ind. 2010) (agreeing with "the majority of the[ ] courts" that "§ 672(a)(1)
creates rights enforceable by foster parents and foster children under § 1983"); Cal.
Alliance of Child & Family Servs. v. Allenby, 459 F. Supp. 2d 919, 925 (N.D. Cal.
2006) ("[T]he court concludes that CWA confers an individual right on [foster care
service providers] for enforcement of the foster care maintenance payments pursuant
to section 675(4)(A)."); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 303 (N.D.
Ga. 2003) (granting plaintiffs' motion for leave to file amended complaint to add
claim that state defendants violated "plaintiffs' and class members right to live in
foster care placements that have the capacity to provide for the essential needs and
services of children in their care by receiving adequate foster care maintenance
payments under 42 U.S.C. §§ 671(a)(1), 672(a) and (b), 675(4)(A) and (B), and 45
C.F.R. § 1355.20" after concluding that CWA "provisions . . . do create privately
enforceable rights"); Mo. Child Care Ass'n v. Martin, 241 F. Supp. 2d 1032, 1042
(W.D. Mo. 2003) ("[T]he [c]ourt concludes that Congress intended there to be a
private right of action under §§ 672 and 675 of the CWA.").

                                         -19-
Id. "In order to seek redress through § 1983, however, a plaintiff must assert the
violation of a federal right, not merely a violation of federal law." Id. To "determin[e]
whether a particular statutory provision gives rise to a federal right," id., the Supreme
Court has directed courts to analyze the following three factors:

       First, Congress must have intended that the provision in question benefit
       the plaintiff. Wright, 479 U.S., at 430, 107 S. Ct., at 773–774. Second,
       the plaintiff must demonstrate that the right assertedly protected by the
       statute is not so "vague and amorphous" that its enforcement would
       strain judicial competence. Id., at 431–432, 107 S. Ct., at 774–775.
       Third, the statute must unambiguously impose a binding obligation on
       the States. In other words, the provision giving rise to the asserted right
       must be couched in mandatory, rather than precatory, terms. Wilder,
       supra, at 510–511, 110 S. Ct., at 2517–2518; see also Pennhurst State
       School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531,
       1539–1540, 67 L. Ed. 2d 694 (1981) (discussing whether Congress
       created obligations giving rise to an implied cause of action).

Id. at 340–41.

        If a plaintiff shows that a federal statute satisfies these three Blessing criteria,
then "there is . . . a rebuttable presumption that the right is enforceable under § 1983."
Id. at 341. "[O]ur inquiry focuses on congressional intent"; therefore, a court properly
dismisses a claim where "Congress 'specifically foreclosed a remedy under § 1983.'"
Id. (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)). "Congress may do
so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by
creating a comprehensive enforcement scheme that is incompatible with individual
enforcement under § 1983." Id. In the present case, Congress did not expressly forbid
§ 1983 actions related §§ 672 and 675 of the CWA.




                                           -20-
                    A. First Blessing Factor—Benefit to Plaintiff

       The Supreme Court has "reject[ed] the notion that [its] cases permit anything
short of an unambiguously conferred right to support a cause of action brought under
§ 1983." Gonzaga, 536 U.S. at 283. According to the Court, although the inquiry into
whether a plaintiff may enforce a statutory violation through § 1983 is different from
whether the court can imply a private right of action from a statute, "the inquiries
overlap in one meaningful respect—in either case we must first determine whether
Congress intended to create a federal right." Id. "For a statute to create such private
rights, its text must be 'phrased in terms of the persons benefited.'" Id. at 284 (quoting
Cannon, 441 U.S. at 692 n.13). Thus, the plaintiff must show that the "statute
'confer[s] rights on a particular class of persons.'" Id. at 285 (alteration in original)
(quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)). "A court's role in
discerning whether personal rights exist in the § 1983 context should therefore not
differ from its role in discerning whether personal rights exist in the implied right of
action context." Id. "Accordingly, where the text and structure of a statute provide no
indication that Congress intends to create new individual rights, there is no basis for
a private suit, whether under § 1983 or under an implied right of action." Id. at 286.

        In Gonzaga, the Court "laid out a three-part test to determine whether a
provision creates a 'right' that is enforceable under § 1983." Patrick, 771 F. Supp. 2d
at 167. The first consideration is "whether the provision contains 'rights-creating
language.'" Id. at 168 (quoting Gonzaga, 536 U.S. at 287). The second consideration
is "whether the provision had an aggregate as opposed to an individualized focus."
Id. (citing Gonzaga, 536 U.S. at 287). The third consideration is "whether the statute
contains another enforcement mechanism through which an aggrieved individual can
obtain review." Id. (citing Gonzaga, 536 U.S. at 289–90).




                                          -21-
      Applying these considerations I "conclude that Congress intended for §§ 672(a)
and 675(4)(A) to benefit Foster Parents as the caregivers for foster children." Wagner,
624 F.3d at 979.

       Section 672(a)–(c) "unambiguously designates foster parents as one of three
types of recipients who can receive funds on foster children's behalf." Id. First, a state
must "make foster care maintenance payments 'on behalf of each child' qualifying for
foster care." Id. at 979–80 (quoting 42 U.S.C. § 672(a)). Second, the state may only
make "foster care maintenance payments . . . on behalf of a qualifying child . . . to (1)
an 'individual' providing a 'foster family home'; (2) 'a public or private child-
placement or child-care agency'; or (3) a 'child-care institution.'" Id. at 980 (quoting
42 U.S.C. § 672(b)). Third, "[§] 672(c) defines a 'foster family home' as 'foster family
home for children which is licenced by the State in which it is situated . . . .'" Id.
(alteration in original) (quoting 42 U.S.C. § 672(c)). Therefore, reading § 672 in its
totality "establishes that participating states must make foster care maintenance
payments on behalf of each child to a foster care provider such as individual foster
parents." Id.; see also Patrick, 771 F. Supp. 2d at 171 (concluding that the "first
Gonzaga factor requir[ing] 'rights-creating language'" was satisfied because the
"directives [in § 672] are both couched in mandatory terms and are unmistakably
focused on the benefitted class, i.e., foster children").

       This case meaningfully differs from "Gonzaga, where the Supreme Court held
that the language of [FERPA] did not create an enforceable right." Wagner, 624 F.3d
at 980 (citing 536 U.S. at 276); see also 20 U.S.C. § 1232g(b)(1) ("No funds shall be
made available under any applicable program to any educational agency or institution
which has a policy or practice of permitting the release of education records . . . of
students without the written consent of their parents to any individual, agency, or
organization . . . ."). In that case, the Court concluded that FERPA was not "focus[ed]
. . . on individual beneficiaries" but instead targeted "the 'person
regulated'—educational agencies and institutions—rather than the 'individuals

                                          -22-
protected'—the students and their families." Wagner, 624 F.3d at 980 (quoting
Gonzaga, 536 U.S. at 287). FERPA had an "'aggregate focus' on 'institutional policy
and practice' rather than focusing on 'individual instances' of noncompliance." Id.
(quoting Gonzaga, 536 U.S. at 288).

       Unlike FERPA, "§ 672 of the CWA focuses squarely on the individuals
protected, rather than the entities regulated." Id. It is not "regulat[ing] state
institutions" but instead focused on states making "payments 'on behalf of each child,'
payments which are directed to foster parents pursuant to § 672(b)." Id. "'In contrast
[to FERPA], the CWA contemplates payments directly to providers, and the
providers seek enforcement of that right.'" Id. (emphasis added) (alteration in
original) (quoting Allenby, 459 F. Supp. 2d at 924).

       Moreover, § 672(a)(1) has an individual focus—"'payments on behalf of each
child'"—as opposed to an aggregate focus. Id. (quoting 42 U.S.C. § 672(a)(1)).
"Section 672(a)'s focus on individual foster children and § 672(b)'s specific language
designating foster care providers to receive payments on foster children's behalf
together unambiguously reflect Congress's intent that foster care maintenance
payments benefit individual foster parents." Id. at 981. Congress's embedding of these
provisions into "'the requirements for a state plan'" does not mean these provisions
cannot also create an individual right. Patrick, 771 F. Supp. 2d at 171 (quoting Rio
Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 74 (1st Cir. 2005) ("The mere
fact that all the Medicaid laws are embedded within the requirements for a state plan
does not, by itself, make all of the Medicaid provisions into ones stating a mere
institutional policy or practice rather than creating an individual right.")).

       In holding that no rights-creating language exists in the CWA, the majority
attempts to distinguish Wilder. See supra Part II.A. Wilder, however, is not so easily
set aside. "In that case, the Supreme Court gave VA hospitals the right to sue in
federal court under § 1983 to obtain reimbursement for the cost of providing medical

                                         -23-
services to indigents as mandated by the Medicaid Act." Martin, 241 F. Supp. 2d at
1040. The Gonzaga Court explained that, in Wilder, it permitted "a § 1983 suit
brought by health care providers to enforce a reimbursement provision of the
Medicaid Act, on the ground that the provision . . . explicitly conferred specific
monetary entitlements upon the plaintiffs." Gonzaga, 536 U.S. at 280. The Supreme
Court did not overrule Wilder in Gonzaga. See Martin, 241 F. Supp. 2d at 1041 ("If
the Supreme Court had intended to overrule Wilder, one would expect the criticisms
or clarification to be directed at Wilder and not Blessing and Suter.").

             The CWA, like the Medicaid statute in Wilder, explicitly confers
      monetary entitlements on the foster care institutional providers and
      evidences Congress'[s] intent to permit those foster care institutions to
      enforce their rights in federal court using § 1983. While the ultimate
      beneficiaries of the Medicaid statute were the indigents who received
      medical services, the Supreme Court in Wilder found that the hospitals
      had a right to be paid according to the terms of the statute and could use
      § 1983 to enforce that right. Similarly, while the ultimate beneficiaries
      of the CWA are the foster children, Congress mandated that foster care
      providers should recover their costs, thereby creating a similar right of
      enforcement recognized in Wilder. Furthermore, in both the CWA and
      the Medicaid statute, the reference to costs focuses on the institutions
      and not the children. Congress must have recognized that if costs were
      not covered, reputable foster care service would eventually not be
      available. Congress would also have been aware that as a general
      proposition foster care institutions, not foster children, would be in a
      better position to enforce those rights, thereby ensuring the continued
      implementation of congressional intent.

Id. (emphasis added).11


      11
         The district court criticized Martin's reliance on Wilder, stating that "Martin
believed that the Wilder analysis remained sound because Gonzaga did not levy any
'criticisms or clarification' at it." (Quoting Martin, 241 F. Supp. 2d at 1041.) It
concluded that Gonzaga rejected the test applied in Wilder "'in favor of the narrower

                                         -24-
       Finally, as the majority concedes, the CWA does not contain an alternative
enforcement mechanism. See supra Part II.C. "Unlike the FERPA [at issue in
Gonzaga], the CWA provides no administrative means through which a foster parent
may ask the State to make foster care maintenance payments that cover the mandatory
costs." Wagner, 624 F.3d at 982. The lack of an "administrative forum in which
[foster parents may] raise their concerns lends additional support to [the] conclusion
that Congress intended to create an enforceable right here, just as the presence of an
administrative mechanism 'buttressed' the Supreme Court's opposite conclusion in
Gonzaga." Id. (citing Gonzaga, 536 U.S. at 289–90); see also Patrick, 771 F. Supp.
2d at 172 ("While Defendants argue that the [CWA] establishes a 'comprehensive
review and enforcement infrastructure' by requiring periodic review to determine
which states are in substantial conformity with the Act, . . . this purely institutional
review process is not the same as an individualized enforcement mechanism.").

       I conclude that "[t]he first Blessing factor therefore militates in favor of the
creation of an enforceable right." Wagner, 624 F.3d at 981.

                  B. Second Blessing Factor—Vagueness of Right
       "The second Blessing factor asks whether the plaintiff has demonstrated that
the asserted right is not so vague and amorphous that its enforcement would strain
judicial competence." Wagner, 624 F.3d at 981 (quotation and citation omitted). I




'unambiguously conferred right' analysis that now governs.'" (Quoting Minn.
Pharmacists Ass'n v. Pawlenty, 690 F. Supp. 2d 809, 818 n.5 (D. Minn. 2010)
(concluding that "it is clear that [Gonzaga] rejected some implications of Wilder").)
"While the analysis and decision of the District Court may reflect the direction that
future Supreme Court cases in this area will take," given that the Court did not
overrule Wilder in Gonzaga and that it is comparable to the present case, I conclude
that "currently binding precedent supports" reversal of the district court. See Sabree
ex rel. Sabree v. Richman, 367 F.3d 180, 194 (3d Cir. 2004) (Alito, J., concurring).

                                         -25-
conclude that § 675(4)(A)'s "itemized list of expenses" creates a "sufficiently
specific" right. Id.

      Section 675(4)(A) of 42 U.S.C. provides that

      [t]he term "foster care maintenance payments" means payments to cover
      the cost of (and the cost of providing) food, clothing, shelter, daily
      supervision, school supplies, a child's personal incidentals, liability
      insurance with respect to a child, reasonable travel to the child's home
      for visitation, and reasonable 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 preceding sentence.

       "[C]ourts may review the State's compliance with a requirement to set rates that
cover the costs of the enumerated expenditures." Wagner, 624 F.3d at 981. Although
the statute "does not prescribe a particular methodology for calculating costs, [courts
may] give deference to a reasonable methodology employed by the State." Id. (citing
Wilder, 496 U.S. at 518–19). The lack "of a uniform federal methodology for setting
rates 'does not render the [statute] unenforceable by a court.'" Id. (alteration in
original) (quoting Wilder, 496 U.S. at 519).

       The majority of "courts considering the combined effect of §§ 672(a) and
675(4)(A) have also concluded that the asserted right satisfies Blessing's second
factor." Id. (citing Payne, 683 F. Supp. 2d at 878 ("The statute explicitly requires any
State with an approved plan to provide payments on behalf of eligible foster children
to cover the specific costs listed in § 675(4)(A). In our view, the language contained
in § 672(a)(1) is the type of rights-creating language referenced in Gonzaga. The right
to reimbursement is couched in mandatory terms (providing that each State with an
approved plan 'shall' make foster care maintenance payments) and is neither vague


                                         -26-
nor amorphous as the statute clearly enumerates the items and services the payments
are required to cover."); Allenby, 459 F. Supp. 2d at 925 ("[S]ection 675(4)([A])
contains an explicit and detailed provision for determining payments to foster care
providers."); Martin, 241 F. Supp. 2d. at 1041 ("Payments [in § 675(4)(A)] are based
either on itemized costs or reasonable overhead, issues routinely entrusted to the
judiciary in both statutory and common law actions.")); see also Chafee, 800 F. Supp.
2d at 388 (explaining that § 675(4)(A) "contains very specific requirements . . . for
foster care maintenance payments" and that "§ 672(a)(1) . . . requires that each State
with an approved plan 'shall make foster care maintenance payments on behalf of
each child' who has been removed into foster care"); Perdue, 218 F.R.D. at 303
("Although the actual costs of certain basic child care necessities such as food,
clothing, and shelter may vary, the Court is equipped to determine whether the current
foster care maintenance rates fall outside the range of reasonable payments necessary
to provide adequate care for children in Fulton and DeKalb Counties.").

       I would hold that the second Blessing factor is satisfied.

          C. Third Blessing Factor—Mandatory Obligation upon the States
        "The third and final Blessing factor requires that the provision giving rise to the
right is couched in mandatory, rather than precatory, terms." Wagner, 624 F.3d at 982
(quotation and citation omitted). Here, § 672(a)(1) provides that "[e]ach State with
a plan approved under this part shall make foster care maintenance payments."
(Emphasis added.) Thus, it "require[s] that grantee states make payments to identified
beneficiaries." Wagner, 624 F.3d at 982. Therefore, I conclude that the third Blessing
factor is satisfied.

                                  II. Conclusion
      As have the majority of courts, I would hold "that §§ 672(a) and 675(4)(A) of
the [CWA] establish a presumptively enforceable right under § 1983 to foster care
maintenance payments from the State that cover the cost of the expenses enumerated

                                           -27-
in § 675(4)(A)." Id. Although I recognize that this right "is only 'presumptively
enforceable' by § 1983," I conclude that "the State has not rebutted the presumption,
because the statute contains no express prohibition on enforcement, and there is no
administrative mechanism through which aggrieved foster parents can seek redress
for inadequate maintenance payments." Id. Thus, the Providers "have access to a
remedy under § 1983 to enforce their federal right." Accordingly, I would reverse the
district court's dismissal of the Providers' complaint.
                        ______________________________




                                        -28-
