                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

OSCAR SALAZAR, et al.,        :
                              :
          Plaintiffs,         :
                              :
     v.                       :         Civil Action No. 93-452 (GK)
                              :
DISTRICT OF COLUMBIA, et al., :
                              :
          Defendants.         :


                            MEMORANDUM OPINION

     Plaintiffs are a class of poor children who are eligible for

Medicaid services in the District of Columbia.         Pursuant to 42

U.S.C. § 1983, they initiated this action almost two decades ago in

order to ensure that Defendants provide those services. During the

course of this long and difficult litigation, parties were able to

resolve their dispute in the form of a Consent Decree agreed to in

1999.   For the past ten years, the Court has overseen Defendants’

compliance with the terms of that Consent Decree.

     This matter is now before the Court on Defendants’ Motion to

Terminate Consent Decree and Subsequent Remedial Orders and to

Dismiss the Case (“Defs.’ Mot.”) [Dkt. Nos. 1456, 1481].           Upon

consideration   of    the     Motion,   Opposition,   Reply,   numerous

supplemental briefs and surreplies, and the entire record herein,

and for the reasons stated below, Defendants’ Motion is denied as

to the private right of action issue.
I.    BACKGROUND

      Prior opinions have described in some detail the lengthy and

complicated history of this case.          See, e.g., Salazar v. District

of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000); Salazar v. District

of Columbia, 954 F. Supp. 278 (D.D.C. 1996) (“Salazar I”).           The key

pieces of the narrative are set forth herein.

      In their Complaint, Plaintiffs brought seven claims against

the   District    of   Columbia.1    Complaint     ¶¶    103-25.    One    of

Plaintiffs’ most far-reaching claims was that Defendants had failed

to    furnish    “early   and   periodic    screening,    diagnostic,     and

treatment” (“EPSDT”) services, as mandated by the Medicaid program,

42 U.S.C. § 1396a(a)(43).       Complaint ¶¶ 120-22.       Such a failure,

they claim, is actionable under 42 U.S.C. § 1983.

      In 1994, Judge Norma Holloway Johnson, to whom the case was

originally assigned, ruled that Plaintiffs were permitted to bring

six of the seven Medicaid claims under § 1983.           See Wellington v.

District of Columbia, 851 F. Supp. 1, 3-6 (D.D.C. 1994).2                 The

Court held that “Section 1983 provides a private remedy for all of

the Title XIX provisions except those in [P]laintiffs’ third claim.




      1
          Three of the allegations in the Complaint were either
resolved before trial or dismissed as a matter of law. Salazar I,
954 F. Supp. at 280 n.4.
      2
          After Judge Johnson         issued    this    Opinion,   the   lead
Plaintiff became Salazar.

                                    -2-
All of [P]laintiffs[’] Title XIX claims except Claim III are

sufficient to withstand the motion to dismiss.”    Id. at 6.

     On July 1, 1994, the case was transferred to this Court   [Dkt.

No. 74].   After extensive pre-trial litigation, a seven-day bench

trial was held in 1996, to resolve the dispute over Plaintiffs’

EPSDT claim, as well as three additional claims. At the conclusion

of the trial, a lengthy opinion set forth the Court’s findings of

fact and conclusions of law. Plaintiffs prevailed, under 42 U.S.C.

§ 1983, on each of the four claims that went to trial.3   After the

Court entered remedial orders to effectuate this ruling, Defendants

appealed the judgment.

     While the case was proceeding before our Court of Appeals,

parties engaged in settlement negotiations. On September 23, 1998,

those negotiations produced a proposed Settlement Order [Dkt. No.

624]. The next day, parties asked the Court of Appeals to remove

the case from its calendar and requested remand back to this Court.

On January 22, 1999, the Settlement Order was approved by the

Court.   Order Modifying the Amended Remedial Order of May 6, 1997

and Vacating the Order of March 27, 1997 (“Settlement Order”) [Dkt.



     3
          The Court held that Defendants failed to “issue decisions
and provide Medicaid coverage within 45 days after initial
applications are submitted” (Claim 4); “provide advance notice of
the discontinuance or suspension of Medicaid benefits” (Claim 5);
“provide or arrange for the provision of [EPSDT] services to
Medicaid recipients who request such services” (Claim 6); and
failed to “effectively notify individuals of the availability of
EPSDT services” (Claim 7). Salazar I, 954 F. Supp. at 280.

                                -3-
No. 663]. Since that time, this agreement has governed the case.

There     have   been   various   consensual   amendments      made   to   the

Settlement Order, as well as Court Orders resolving disputes over

Defendants’ compliance with the Order’s requirements.

      In March of 2009, the District of Columbia filed the instant

Motion.4    In it, Defendants argue, inter alia, that Plaintiffs have

no private right of action to enforce the EPSDT provisions under §

1983, and, even if they do, Defendants have achieved compliance

with federal law governing provision of such services. Defs.’ Mot.

at 1-2.    On May 26, 2009, the Court concluded, at the suggestion of

Defendants,      that   “the   most    efficient   way   to    resolve     the

Defendant[s’] pending Motion” would be to first consider the

discrete legal question of whether or not Plaintiffs have a private

right of action to enforce the EPSDT provisions.              Order (May 26,

2009) [Dkt. No. 1489]. Accordingly, briefing was conducted on only

this legal issue, and was completed on September 18, 2009.

II.   ANALYSIS

      Defendants argue that Rule 60(b) provides grounds for vacating

the decision.      Their chief argument is that a 2002 Supreme Court

decision, Gonzaga v. Doe, 536 U.S. 273 (2002), represents an

intervening change in law that alters the legal landscape on which



      4
           On May 20, 2009, Defendants re-filed the entire Motion,
along with a complete set of numerous exhibits, as an Errata Motion
[Dkt. No. 1481]. See Pls.’ Mot. to Take Discovery, at 1 n.1 [Dkt.
No. 1472].

                                      -4-
the Settlement Order rests.            Such a significant change, they

maintain, makes Rule 60(b) an appropriate vehicle for re-arguing

whether Plaintiffs have a private right of action to enforce the

EPSDT provisions of Medicaid, a point previously decided in favor

of Plaintiffs.     See Wellington, 851 F. Supp. at 6.

     Rule 60(b) permits a party to seek relief from a “final

judgment, order, or proceeding” for various reasons.            Fed. R. Civ.

P. 60(b).    Defendants seek relief under 60(b)(5) and (6).             Defs.’

Mot. at 5.   Rule 60(b)(5) allows a court to grant relief where “the

judgment has been satisfied, released or discharged; it is based on

an earlier judgment that has been reversed or vacated; or applying

it prospectively is no longer equitable.”               Rule 60(b)(6) is a

catch-all provision that permits a court to grant relief for “any

other    reason   that     justifies     relief.”       The   party    seeking

modification of a consent decree bears the burden of showing that

“a significant change in circumstances” warrants relief.               Rufo v.

Inmates of the Suffolk County Jail, 502 U.S. 367, 383 (1992).

     “Modification is an extraordinary remedy, as would be any

device   which    allows   a   party--even    a     municipality--to   escape

commitments voluntarily made and solemnized by a court decree.”

Twelve John Does v. District of Columbia, 861 F.2d 295, 298 (D.C.

Cir. 1988) (discussing Rule 60(b)(5)).              The district court has

discretion to grant or deny a motion brought under Rule 60(b).             See




                                       -5-
id.; see also United Mine Workers of Am. 1974 Pension v. Pittston

Co., 984 F.2d 469, 476 (D.C. Cir. 1993).

     A.     Defendants       Are    Time-Barred    from    Seeking    Rule      60(b)
            Relief.

     A party seeking relief under Rule 60(b)(5) or (6) must do so

“within a reasonable time.”               Fed. R. Civ. P. 60(c)(1).              This

standard must be applied to the specific facts of each case, after

considering       “whether   the     party   opposing     the   motion    has    been

prejudiced by the delay in seeking relief and . . . whether the

moving    party    had   some      good   reason   for    his   failure   to     take

appropriate action sooner.”           11 Charles A. Wright, et al., Federal

Practice and Procedure, § 2866 (2d ed. 2009); see also Expeditions

Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 500 F.2d

808, 810 (D.C. Cir. 1974); Evans v. Fenty, Civ. No. 76-0293, 2010

WL 1337641, at *27 (D.D.C. Apr. 7, 2010) (“Factors to consider

include ‘the length of the delay, the explanations for the delay,

the prejudice to the opposing party caused by the delay and the

circumstances warranting relief.’”) (citations omitted).                   In this

case, Defendants filed their Motion in March of 2009.                 The Supreme

Court    issued    its   opinion     in   Gonzaga--the     asserted      basis   for

Defendants’ private right of action argument--in June of 2002.

Nearly seven years separate the two dates.

     Defendants argue that ongoing enforcement of the decree in the

intervening time has minimized actual prejudice to the Plaintiffs.

Defs.’ Reply to Pls.’ Partial Opp’n to Defs.’ Mot. at 6-7 (“Defs.’

                                          -6-
Reply”) [Dkt. No. 1503]; cf. Order (May 26, 2009) (finding no

prejudice to Plaintiff in bifurcating consideration of Defendants’

Motion to Terminate because “all parts of the consent decree

[would] remain in order”).   That may well be true to some extent.

However, underlying the limitation on Rule 60(b) relief are the

important interests of finality and repose. See Randall v. Merrill

Lynch, 820 F.2d 1317 (D.C. Cir. 1987) (noting that 60(b) is “a tool

which trial courts are to use sparingly,” as it is the “mechanism

by which courts temper the finality of judgments with the necessity

to distribute justice”); Summers v. Howard Univ., 374 F.3d 1188,

1193 (D.C. Cir. 2004) (“Under Rule 60(b), a court must balance the

interest in justice with the interest in protecting the finality of

judgments.”). Allowing Defendants to file a motion that strikes at

the legal foundation of a ten-year-old decree, based on an issue

decided seven years ago, surely prejudices Plaintiffs’ interests in

finality and repose.

     Courts in this Circuit have found far shorter delays to be

unreasonable.   See, e.g., Gilmore v. Hinman, 191 F.2d 652, 652-53

(D.C. Cir. 1951) (concluding that a 60(b) motion filed 16 months

after final judgment was not filed within a reasonable time);

Karim-Panahi v. Washington Metro. Area Transit Auth., Civ. No. 08-

7093, 2008 WL 5460693, at *1 (D.C. Cir. 2008) (finding no abuse of

discretion where district court denied motion as untimely because

filed after 18 months and without justification); see also Emily Q.


                                -7-
v. Shrewy, 203 Fed. Appx. 35 (9th Cir. 2006) (affirming district

court denial of 60(b) motion on timeliness grounds, as Defendant in

an   institutional-reform      case   waited       four    years   before      making

argument based on Gonzaga) (unpublished).

       Defendants    argue   that   because    the    “priorities         of   public

officials” overseeing the litigation for the District of Columbia

may change from one municipal administration to another, a decision

not to challenge a consent decree entered into by an earlier

administration should not prevent the current administration from

doing so.     Defs.’ Reply at 4-6.           In this particular case, the

current administration took office in January of 2007. See Elected

Officials, http://www.grc.dc.gov/grc/cwp/view,a,1203,q,447121,pm,

1,grcNav_GID,1424,,grcNav_GID,1421.asp.                   The   current     Attorney

General assumed his position in November of 2008, after serving as

Interim Attorney General since January of 2008 and as General

Counsel to the Mayor since January of 2007. See OAG: AG Bio - Peter

Nickles, http://occ.dc.gov/occ/cwp/view,a,3,q,638711.asp.                        Thus,

over   two   years   passed    between      this    administration’s           initial

handling of the case and its decision to file a 60(b) Motion in

March of 2009 based on Gonzaga.             Defendants’ asserted excuse is

hardly compelling and does not justify such a delay in filing.

       Defendants    come    perilously     close    to     asserting     that      the

finality of a case involving a municipality in an institutional-

reform   context     depends   upon   the    policies       and    tenure      of   the


                                      -8-
administration litigating it at any given time.           See Defs.’ Reply

at 4-5 (“The ‘reason’ for the asserted ‘delay’ goes to the heart of

the   democratic   process--the   priorities      of     public   officials

responsible for advancing their conceptions of the public interest.

While one administration did not raise the issue, a different

administration, elected by the citizens of the District of Columbia

well after the Gonzaga decision, made the decision to raise this

argument in a filing that simultaneously asserts that the District

is in compliance with the law.”).       To read the Rule’s “reasonable

time” requirement to allow a complete change of position with each

election of a new administration would completely undermine the

interests of finality and repose that the Rule is designed to

protect.5

      Defendants urge the Court to consider the institutional-reform

context of the litigation and approach the issue with greater

flexibility. Rufo, they maintain, articulates a public interest in

allowing public officials in institutional-reform cases to focus on

“the sound and efficient operation of [the public’s] institutions,”

Rufo, 502 U.S. at 381.    Defs.’ Reply at 7-8.      Therefore, the delay

in filing--as well as continued enforcement of the Settlement

Order--has   actually    prejudiced     the   District    of   Columbia   by

prohibiting it from running its programs as it sees fit.          Id. at 8.


      5
          Indeed, such a reading would undoubtedly prejudice many
interests in a community and raise doubts about whether commitments
made and relied upon could be trusted for the future.

                                  -9-
      Tellingly, no such interpretation of the “reasonable time”

requirement is even discussed, no less adopted, in Horne v. Flores,

129 S. Ct. 2579 (2009), a recent Supreme Court case addressing this

issue, or in any other cases relied on by Defendants.                       In Horne,

the   Supreme     Court       observed     that    in     “institutional       reform

litigation,”     Rule       60(b)(5)     “serves    a    particularly       important

function.”      129 S. Ct. at 2593.             The Rule allows courts to re-

examine judgments or orders that “often raise sensitive federalism

concerns.”      Id.         Accordingly,    the    Horne    Court    took    care    to

emphasize its earlier holding in Rufo that courts should take a

“flexible approach” to Rule 60(b)(5) motions addressing consent

decrees.   Id. at 2594-95.         However, the Supreme Court also stated

that “[i]t goes without saying that federal courts must vigilantly

enforce federal law and must not hesitate in awarding necessary

relief.” Id. at 2595.         The Horne Court went on to explain that the

appropriate inquiry under Rufo “takes the original judgment as a

given and asks only whether ‘a significant change either in factual

conditions or in law’ renders continued enforcement of the judgment

‘detrimental to the public interest.’”                  Id. at 2596-97.

      Defendants cite two appellate decisions from other circuits

that have applied Rufo’s “flexible approach” in considering motions

to vacate.   In Shakman v. City of Chicago, 426 F.3d 925 (7th Cir.

2005), the Seventh Circuit held that it was reversible error for a

district   court      not    to   factor    in    the    “public    nature    of    the


                                         -10-
litigation in reaching its conclusion that the City’s motion was

untimely.” Id. at 933-34. More recently, the Sixth Circuit upheld

a district court’s ruling that a Rule 60(b) motion brought 30 years

late was timely, because it appropriately considered more than

simply the amount of time which had passed--it looked as well at

the explanations for the delay, the prejudice to the opposing

party, and the circumstances of the case.    Doe v. Briley, 562 F.3d

777, 781 (6th Cir. 2009).

     These cases, which of course are not binding on this Court,

certainly do not require a conclusion, taking into account the Rufo

factors, that the Motion in this case was filed within a reasonable

amount of time.   At most, they counsel courts to take more than a

rigid numerical view of delay in cases that implicate institutional

reform and are of great public concern.     See Shakman, 426 F.3d at

933-34; see also Briley, 562 F.3d at 781.

     In this case, parties have actively litigated the matter

throughout the time period in question.   In the ten years since the

Settlement Order was entered, the Court has issued numerous orders

enforcing the Order’s terms.    As was true in Evans, Defendants

“have been in Court continually and repeatedly” since agreeing to

the Settlement Order.    Evans, 2010 WL 1337641, at *27.       They

cannot, therefore, claim that they were unaware of the “existence

of the [Settlement Order] or its impact.” Id.   To the contrary, the

District of Columbia has met regularly with Plaintiffs and the


                               -11-
Court to narrow issues of dispute and to work through--and around--

bureaucratic stumbling blocks to ensure compliance with the terms

of the Settlement Order.   While Defendants have sought to vacate

portions of that Order, they have not, until their filing in 2009,

relied on Gonzaga to attempt to undue the lawsuit by challenging

whether a private right of action exists.    To allow Defendants to

do so nearly seven years after that decision was issued would deny

the Plaintiffs their bargained-for interest in finality, and would

put them in a position where judicial decisions made many years ago

could, at any time, be set aside by a different city administration

with different political priorities.

     Given the circumstances of this case, and the prejudice that

Plaintiffs would suffer, seven years of delay does, in the Court’s

judgment, fall outside the limits of “flexibility” discussed in

Rufo, and represents an unreasonable time under Rule 60(b).

Therefore, the Court concludes that Defendants did not file their

Motion “within a reasonable time” under Rule 60(b).

     B.   Even if Defendants’ Motion Is Timely, They Have Not
          Satisfied the Requirements of Rule 60(b) by Showing
          Either the Existence of Extraordinary Circumstances or a
          Significant Change in Law.

     Timeliness is only one of the requirements that must be met in

order to justify Rule 60(b) relief.    Even if Defendants’ Motion to

Terminate was timely, they would still need to demonstrate that

applying the Settlement Order prospectively is no longer equitable,



                               -12-
or that “any other reason justifies relief.”         Fed. R. Civ. P.

60(b)(5), (6).

            1.   Rule 60(b)(6) Relief Is Not Appropriate.

     The Supreme Court has ruled that relief under Rule 60(b)(6) is

appropriate only in “extraordinary circumstances.”          Ackermann v.

United States, 340 U.S. 193, 199 (1950).      Our Court of Appeals has

made it clear that “plaintiffs [and presumably Defendants as well]

must clear a very high bar to obtain relief under Rule 60(b)(6).”

Kramer v. Gates, 481 F.3d 788, 791-93 (D.C. Cir. 2007).

     Changes in the law, “by themselves[,] rarely constitute the

extraordinary    circumstances   required   for   relief”    under   this

subsection of the Rule.      Agostini v. Felton, 521 U.S. 203, 239

(1997).    In Gonzales v. Crosby, 545 U.S. 524 (2005), the Supreme

Court held that a “change in the interpretation of the AEDPA

statute of limitations” did not represent such an extraordinary

circumstance.    545 U.S. at 536.   Thereafter, our Court of Appeals

interpreted Crosby to mean that “‘extraordinary circumstances’ are

not present when . . . there has been an intervening change in case

law.”     Kramer, 481 F.3d at 792.      Other courts of appeals have

adopted the same position.    See, e.g.,    Bailey v. Ryan Stevedoring

Co., Inc., 894 F.2d 157, 160 (5th Cir. 1990); McKnight v. United

States Steel Corp., 726 F.2d 333, 336 (7th Cir. 1984); Title v.

United States, 263 F.2d 28, 31 (9th Cir. 1959).




                                 -13-
     In this case Defendants’ private right of action argument

rests   solely    on   the    assumption    that    Gonzaga     represents    a

significant change in intervening law.             Defs.’ Mot. at 4-6.       As

the case law makes overwhelmingly clear, Rule 60(b)(6) provides no

avenue for relief where the motion is based solely on a change in

intervening law. Therefore, Defendants cannot rely on this section

of the Rule to raise their private right of action argument.

             2.   Rule 60(b)(5) Relief Is Not Warranted Because
                  Gonzaga Does Not Represent a Significant Change in
                  Decisional Law.

     Thus,    Defendants     are   left   only   with   Rule   60(b)(5)   as a

possible justification for relief.          See Defs.’ Mot. at 5 (citing

subsections 60(b)(5) and (6) as sole bases of relief for their

assertion of private right of action argument). According to Rufo,

parties may be entitled to relief under this subsection if they can

show “a significant change either in factual conditions or law.”

502 U.S. at 384.       Defendants assert a change only in decisional

law: they insist that Gonzaga rejected the analysis in cases that

this Court relied on when it concluded that Plaintiffs have a

private right of action, a conclusion which went on to serve as one

of the legal bases for Salazar I and the Settlement Order.                   See

Defs.’ Mot. at 5-6 (citing Wellington, 851 F. Supp. at 3-4).

Plaintiffs deny that Gonzaga represents a significant change in

law, and insist that it merely clarifies prior Supreme Court




                                     -14-
precedent in private right of action cases.                Pls.’ Opp’n to Defs.’

Mot. at 11-14 (“Pls.’ Opp’n”) [Dkt. No. 1499].

       In   Agostini,    a    Supreme   Court       case   that    dealt    with   the

provision of remedial assistance by public school teachers to

students    enrolled     in   religious     schools,       the    Court’s    60(b)(5)

analysis “hinge[d] on whether [its] later Establishment Clause

cases have so undermined [Aguilar v. Felton, 473 U.S. 402 (1985)]

that it is no longer good law.”             521 U.S. at 217-18.            Addressing

the issue in the context of a consent decree, the Supreme Court

stated that “a decision that clarifies the law will not, in and of

itself, provide a basis for modifying a decree.” Rufo, 502 U.S. at

390.

       The question, therefore, is whether the 2002 opinion in

Gonzaga sufficiently undermines the validity of those Supreme Court

cases this Court relied upon in Wellington, where it held that a

private     right   of   action    exists      to    enforce      Medicaid’s    EPSDT

provisions under § 1983, so “that [they are] no longer good law.”

Agostini, 521 U.S. at 217, 18; Wellington, 851 F. Supp at 6

(analyzing 42 U.S.C. §§ 1396a(a)(10)(a) and (a)(43)).

       In order to determine whether a private right of action

existed under § 1983, Wellington applied the test set forth in

Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990).                      See

Wellington, 851 F. Supp. at 3-4 (applying Wilder and Suter v.

Artist M., 503 U.S. 347 (1992)).                Wilder required that courts


                                        -15-
inquiring into the existence of a private right of action must

determine if 1) the statutory “provision was intended to benefit

the putative plaintiff”; 2) the statute reflects an unenforceable

“congressional preference for a certain kind of conduct rather than

a[n actionable] binding obligation on the governmental unit”; and

3) the “interest plaintiff asserts is ‘too vague and amorphous’” to

be judicially enforceable.   Wellington, 851 F. Supp. at 3 (quoting

Wilder, 496 U.S. at 509-10) (internal citations and quotations

omitted)). The word “benefit” used in Wilder proved to be the

culprit creating much confusion in lower court decisions.

     The first of the Supreme Court’s two holdings in Gonzaga

focused on the language used in Wilder and related cases to

determine whether the statute provides an enforceable right.6   See

536 U.S. at 283.     Gonzaga aimed to resolve ambiguities within

earlier private right of action cases that the Court admitted had

hardly been “models of clarity.”       Id. at 278.   The Court did

clarify its precedents by holding that only “an unambiguously

conferred right [will] support a cause of action brought under §

1983.”   Id.   Because “Section 1983 provides a remedy only for the

deprivation of ‘rights, privileges, or immunities secured by the



     6
          The Court’s second holding resolved the narrow question
presented in that case, regarding whether nondisclosure provisions
in the Family Educational Rights and Privacy Act (“FERPA”), 20
U.S.C. § 1232g, confer enforceable rights. The Court concluded
that those provisions do not confer such rights. Gonzaga, 536 U.S.
at 287.

                                -16-
Constitution and laws’ of the United States,” it is “rights, not

the broader or vaguer ‘benefits’ or ‘interests,’ that may be

enforced under the authority of that section.” Id. (emphasis in

original).

      Part of the “confusion” that the doctrine created was due to

language from Wilder and a later Supreme Court case, Blessing v.

Freestone, 520 U.S. 329 (1997), both of which dealt with private

rights of action under § 1983.                See Gonzaga, 536 U.S. at 282-83.

Both cases suggested that the provision of “benefits,” rather than

the   creation       of   “rights,”      might     be    sufficient   to    create     an

enforceable private right of action.                    See id.

      As noted earlier, Wilder set forth a test in which the key

inquiry was “whether ‘the provision in question was intend[ed] to

benefit the putative plaintiff.’” Wilder, 496 U.S. at 509 (quoting

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989)).

The Wilder Court concluded that the Boren Amendment to the Medicaid

Act does “create[] a right enforceable by health care providers

under § 1983” because of the “benefits” it conferred upon those

eligible for Medicaid.           Id. at 509-10.

      In Blessing, the Supreme Court conducted a similar inquiry but

arrived at a different conclusion.                 It held that Title IV-D of the

Social   Security         Act,   42    U.S.C.    §§     651-669b,   “does    not     give

individuals      a    federal         right   to      force   a   state     agency     to

substantially comply with” that Title’s provisions.                   Blessing, 520


                                          -17-
U.S. at 333.      Using nearly the same language as Wilder, Blessing

began its analysis by stating “[f]irst, Congress must have intended

that the provision in question benefit the plaintiff.”                      Blessing,

520 U.S. at 340-41 (emphasis added).

     The school teacher who brought suit under FERPA in Gonzaga

attempted to use these two cases to support his argument that a

private   right     of   action   is   created    where      a    statute        merely

“benefits”    putative     plaintiffs.        Gonzaga,    536     U.S.      at   282.

However, as the Court discussed, other Supreme Court cases focused

on whether it was a right, rather than a benefit, was created in

order to determine whether a private right of action exists.

     The Gonzaga Court examined several of these cases, which held

that for a right to be enforceable under § 1983, that right must be

unambiguously conferred by statutory language. See id. at 279-80.

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1

(1981), “made clear that unless Congress ‘speak[s] with a clear

voice,’ and manifests an ‘unambiguous’ intent to confer individual

rights, federal funding provisions provide no basis for private

enforcement    by   §    1983.”   Gonzaga,      536   U.S.       at   280    (quoting

Pennhurst). Similarly, Wright v. Roanoke Redevelopment and Housing

Authority, 479 U.S. 418 (1987), held that tenants could bring a

private lawsuit under § 1983 for violations of the Public Housing

Act where a provision of that statute “conferred entitlements

‘sufficiently specific and definite to qualify as enforceable


                                       -18-
rights   under   Pennhurst.’”      Gonzaga,    536    U.S.    at    280    (quoting

Wright). Finally, in Suter, the Court also grounded its inquiry in

“rights” language, and found that the Adoption Assistance and Child

Welfare Act of 1980 did not “unambiguously confer an enforceable

right upon the Act’s beneficiaries.”                Gonzaga, 536 U.S. at 281

(quoting Suter).

     Gonzaga     resolved   the    confusion    in    the    case    law    between

“benefits” and “rights” by concluding that the “relatively loose”

“benefits” standard advocated by respondents in that case was

incorrect.     The Supreme Court clarified that courts must examine

whether the statute unambiguously conferred a right, instead of

focusing on whether the statute granted benefits.                    Gonzaga, 536

U.S. at 282-83.     In short, the Court clarified the standard to be

applied in determining the existence of a private right of action.

     Turning to the instant case, it is clear that Gonzaga does not

represent a significant change in the law applied in Wellington.

     First, the Wellington decision did not turn on application of

the “benefits” language that produced the confusion resolved in

Gonzaga.     Defendants in this case never contested the issue of

whether Plaintiffs were beneficiaries of Medicaid, under the first

prong of the Wilder test; instead, they argued only that the

statutory    provisions     in    question    did    not    impose    a    “binding

obligation” on the governmental unit.          Wellington, 851 F. Supp. at

3.   Because Gonzaga said nothing about this aspect of the Wilder


                                     -19-
test, it does not represent a significant change in the law relied

on in this case which established a private right of action for

Plaintiffs.      In sum, Judge Johnson did not rely on the “benefits”

test in determining whether these Plaintiffs had a private cause of

action.

       This fact therefore distinguishes Johnson v. City of Detroit,

446 F.3d 614 (6th Cir. 2006), which Defendants argue supports

adoption of a “more rigorous standard” for establishing enforceable

rights under § 1983. Defs.’ Mot. at 7.                In that case, the Sixth

Circuit stated that “any cases premised upon a ‘benefits’ analysis

must be reexamined in light of Gonzaga.”7               Johnson, 446 F.3d at

624.       Wellington was not based on a “benefits analysis,” and

therefore the Sixth Circuit’s instruction to reexamine such cases

does not apply.

       Second, the Supreme Court itself, in Gonzaga, essentially said

that its decision does not represent a significant change in law.

The Court characterized its analysis of the private right of action

question as one designed to “resolve the conflict among the lower

courts     and   in   the   process   resolve   any    ambiguity   in   our   own

opinions.”       Gonzaga, 536 U.S. at 278.        The “ambiguity” that the

Court intended to resolve sprang from “[s]ome language in [its]

opinions [that] might be read to suggest that something less than


       7
          Johnson also described Gonzaga as having simply
“allay[ed] . . . confusion” in the case law. Johnson, 446 F.3d at
618-19.

                                       -20-
an unambiguously conferred right is enforceable by § 1983.” Id. at

282.       The Court clarified that only unambiguously conferred rights

are actionable, thereby dispelling any confusion on the matter.

Id. at 282-83.

       In explaining its ruling, the Court in Gonzaga noted that the

Blessing opinion used benefits language alongside language that

focused       on    whether   “rights”      were    created,      thereby   producing

confusion.          Gonzaga, 536 U.S. at 283.           The Wilder decision also

used “benefits” language and “rights” language in crafting its

test, which generated the same confusion as did the language in

Blessing.           See   Wilder,   496   U.S.     at   509-10.      Gonzaga   merely

clarified that the first prong of these tests requires the right to

be unambiguously conferred: “it is rights, not the broader or

vaguer ‘benefits’ or ‘interests,’ that may be enforced.”                       Id. at

283 (emphasis in original).               The Court did not disturb or limit

Pennhurst or Golden State, upon which Wilder relied in announcing

its test.          In addition, it did not abandon Blessing, as discussed

further below.8

       Third, many courts which have addressed, in the Medicaid

context, whether or not plaintiffs can enforce a private right of

action       for    a   state’s   failure    to    comply   with    that    statute’s


       8
          Indeed, after clarifying its analysis, Gonzaga then
relied on Blessing’s reasoning in conducting its analysis of
FERPA’s language, thereby further suggesting that the analysis in
Blessing had not been changed so significantly as to no longer
qualify as good law. See Gonzaga, 536 U.S. at 287-88.

                                          -21-
provisions,      have   agreed   that   Gonzaga     simply   “resolve[d]      any

ambiguity in [the Supreme Court’s] own opinions.”                Gonzaga, 536

U.S. at 278.      The Ninth Circuit, in a post-Gonzaga decision, was

faced with the question of whether 42 U.S.C. §§ 1396a(a)(10) and

(a)(17) of the Medicaid Act create private rights of action.

Watson v. Weeks, 436 F.3d 1152, 1159 (9th Cir. 2006).               That court

began its inquiry by stating the Blessing test.                 Id. at 1158.

According to the Ninth Circuit, “the Supreme Court clarified the

first prong of [this] test in [Gonzaga].”            Id. at 1159.    The Weeks

decision stated that Gonzaga requires a right to be “unambiguously

conferred” in order to be enforceable under § 1983, and that it is

only   rights,    and   not   “benefits”    or    “interests”    that   can   be

enforced.   Id.    The Ninth Circuit then went on to apply the rest of

the Blessing test, and concluded that § 1396(a)(10) creates an

enforceable right.       Id. at 1159-60.

       In a similar case, the Third Circuit explicitly explained that

the Supreme Court in Gonzaga “carefully avoided disturbing, much

less overruling, Wright and Wilder.”             Sabree v. Richman, 367 F.3d

180, 184 (3d Cir. 2004).         According to the Third Circuit, Gonzaga

“did not abandon [the Blessing] test”--which, again, contains

language similar to Wilder--but did “dispel” confusion in the case

law.    Id. at 186-87.     See also Westside Mothers v. Olszewski, 454

F.3d 532, 541 (6th Cir. 2006) (“Westside Mothers II”) (finding that

Gonzaga “clarified” Blessing requirement regarding “benefits”);


                                     -22-
S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 602-03 (5th Cir. 2004)

(same); Hunter ex rel. Lynah v. Medows, Civ. No. 08-2930, 2009 WL

5062451, at *2 (N.D. Ga. Dec. 16, 2009) (noting that Gonzaga

“clarified” case law, and ruling that plaintiffs could enforce

private   right   of   action   for     violations   of   42   U.S.C.   §

1396a(a)(43)).

     Finally, many other courts, construing Gonzaga in contexts

other than the Medicaid statute, have characterized it as doing no

more than clarifying the Supreme Court’s private right of action

jurisprudence.    See, e.g., Ball v. Rodgers, 492 F.3d 1094, 1105

(9th Cir. 2007) (reasoning that Supreme Court “clarified” first

prong of test for determining federal rights under § 1983); Day v.

Apoliona, 496 F.3d 1027, 1035-36 (9th Cir. 2007) (characterizing

Gonzaga as “[c]larifying a potential tension in earlier cases” and

“offer[ing] guidance”); 31 Foster Children v. Bush, 329 F.3d 1255,

1269 (11th Cir. 2003) (Gonzaga “clarified” first prong of Blessing

test); Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 233

F. Supp. 2d 16, 22 (D.D.C. 2002) (Gonzaga “clarified” precedent

with respect to enforcement of federal rights under § 1983).9


     9
          Defendants attempt to cast Gonzaga as a “conclusive
adoption of a more rigorous standard” for meeting the first prong
of the Wilder private right of action test. Defs.’ Mot. at 7.
Admittedly, there are some appellate decisions that lend support to
this position. For instance, the Fifth Circuit acknowledged that
Gonzaga may have “partially overruled” one of its own earlier
decisions. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d
697, 701 n.4 (5th Cir. 2007). The First Circuit treated Gonzaga as
                                                     (continued...)

                                 -23-
     Based on the reasoning set forth above, the Court agrees with

Sabree, Westside Mothers II, and Hood, among other decisions, that

Gonzaga merely clarified Supreme Court doctrine. By the same token,

the Court disagrees with Equal Access and Long Term Care to the

extent that they regard Gonzaga as a significant change in private

right of    action    case   law   that    renders   earlier       Supreme Court

precedents as “no longer good law” under Agostini.                 Consequently,

the Court does not adopt the reasoning of the Fifth or First

Circuits as persuasive.

     C.    Even if Intervening Case Law Does Provide a Basis for Re-
           Examination of the Private Right of Action Question,
           Plaintiffs Have Established, Under Gonzaga, Their Private
           Right of Action to Enforce Medicaid’s EPSDT Provisions.

     Had   Defendants     filed    a     timely   motion,    and    had    Gonzaga

represented a significant change in decisional law, Defendants

would still need to establish under Gonzaga that Plaintiffs have no

private    right    of   action    to     enforce    the    relevant      Medicaid

provisions.

           1.      Statutory Provisions

     Parties dispute exactly which Medicaid provisions should be

analyzed under Gonzaga.       Plaintiffs insist that the private right



     9
      (...continued)
an intervening decision that justified departure from circuit
precedent. Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d
50, 57 (1st Cir. 2004). That same decision, however, was itself
not clear on whether Gonzaga constituted “a tidal shift or merely
a shift in emphasis” in private right of action case law. Id. at
59.

                                        -24-
of action analysis must be based on the EPSDT allegations made in

the Complaint.   Pls.’ Opp’n at 20.      They alleged that the District

of Columbia violated 42 U.S.C. §§ 1396a(a)(10)(a), (a)(43)(a),

1396d(a)(4)(B), and 1396d(r). Accordingly, these provisions formed

the basis of the Settlement Order.       See Pls.’ Surreply at 4 [Dkt.

No. 1508-3].     They further argue that these EPSDT provisions,

though not all cited to in Salazar I, are the provisions that the

Court referred to in Wellington.     Pls.’ Opp’n at 27, 27 n.2 (citing

Salazar I, 954 F. Supp. at 328-33, and Wellington, 851 F. Supp. at

6).

      Defendants maintain that the Complaint is not the source of

the statutory provisions at issue.           In their view, 42 U.S.C. §

1396a(a)(10) is irrelevant to the Gonzaga analysis because it was

not ruled on in Salazar I and was not incorporated into the

Settlement Order.       Defs.’ Reply at 14.       Defendants argue that

without   a   finding    that   Defendants    violated   this   statutory

provision, and because it “did not form the basis for the portion

of the consent decree at issue,” the Court cannot look to §

1396a(a)(10) as the basis of the Gonzaga analysis.          Defs.’ Sur-

Surreply at 1.

      There appears to be little case law on point.             Plaintiffs

attempt to patch together pieces of dicta from Supreme Court cases

to support their position, but none of the cases they rely on

involved a consent decree or settlement agreement. Therefore, they


                                  -25-
ultimately are unhelpful in resolving whether the Complaint or the

Settlement Order is the governing text.        See Pls.’ Surreply at 2

(citing Blessing and Gonzaga).

     The Court need not decide, however, whether § 1396a(a)(10)

applies.     Assuming that Defendants are correct, and that only

§ 1396a(a)(43) can provide the basis for Plaintiffs’ private right

of action, that statutory provision does, under Gonzaga, establish

such a right.

           2.     Plaintiffs Can Enforce 42 U.S.C. § 1396a(a)(43)
                  Under § 1983.

     Gonzaga requires that, in order to find a federal right

enforceable under § 1983, that right must have been “unambiguously”

conferred.      536 U.S. at 283.      To guide analysis in this area,

Gonzaga instructs us to examine whether Congress used “rights-

creating” language. Id. at 284.         As an example of this type of

language, the Gonzaga Court looked to the provisions of Title VI of

the Civil Rights Act of 1964 and Title IX of the Education

Amendments of 1972, which both provide in relevant part that “no

person . . . shall . . . be subjected to discrimination.”            Id. at

287 (quoting statutory text).         In addition to the text, courts

should assess the structure of the statute to determine if Congress

intended to confer individual rights.      Id. at 286.       If there is an

unambiguously    conferred   right,   courts   then   must    look   to   the

remaining factors articulated in Blessing: “the plaintiff must

demonstrate that the right assertedly protected by the statute is

                                   -26-
not so ‘vague and amorphous’ that its enforcement would strain

judicial competence”; and, last, “the statute must unambiguously

impose a binding obligation on the States.”     Blessing, 520 U.S. at

340-41; see Gonzaga, 536 U.S. at 295.

     Beginning with the text, § 1396a(a)(43) states in part that a

State plan “must . . . provide for . . . informing all persons in

the State who are under the age of 21 and who have been determined

to be eligible for medical assistance including services described

in section 1396d(a)(4)(B) of this title, of the availability of

early and periodic screening, diagnostic, and treatment services as

described in section 1396d(r) of this title and the need for

age-appropriate immunizations against vaccine-preventable diseases

. . .”   42 U.S.C. § 1396a(a)(43)(A).

     The portion of that statutory section which contains “rights-

creating” language under Gonzaga is that “a State plan must provide

for . . . informing all persons . . . of the availability of [EPSDT

services] . . . and the need for age-appropriate immunizations

against vaccine-preventable diseases.”    Id.    This language, like

that in Titles VI and IX of the Civil Rights Act, which the Gonzaga

Court offered as examples of statutes that create private rights of

action, is “individually focused.”    Gonzaga, 536 U.S. at 287.   The

State is required to inform “all persons” under the age of 21 who

are Medicaid-eligible of the services specified in § 1396d(A)(4)(B)

to which they are entitled, clearly indicating that the focus of


                               -27-
the provision is on the “individuals protected,” as opposed to the

“persons regulated.”             Alexander v. Sandoval, 532 U.S. 275, 289

(2001).10      Therefore, under prong one of the appropriate tests, the

Court       concludes     that    the     federal     right    is   “unambiguously”

conferred.

       Other courts have adopted a similar textual analysis in

deciding whether § 1396a(a)(43) creates a private right of action.

For example, in Memisovski ex rel. Memisovski v. Maram, Civ. No.

92-C-1982, 2004 WL 1878332, at *10-11 (N.D. Ill. 2004), the court

held that § 1396a(a)(43) of the Medicaid Act is enforceable under

§ 1983.        The court reasoned that the EPSDT services mandated by

this        section    “provide[]       several     specific    entitlements     that

plaintiffs       ‘must’    be    provided.”          Id.    (enumerating     required

services). Similarly, in Hunter, the district court found that the

EPSDT requirements of § 1396a(a)(43) were focused on the individual

receiving the services.           2009 WL 5062451, at *2.           See also John B.

v. Goetz, 661 F. Supp. 2d 871, 874 (M.D. Tenn. 2009) (denying

defendants’ motion to vacate in part because § 1396a(a)(43) confers

private right of action); Clark v. Richman, 339 F. Supp. 2d 631,

640    (M.D.     Pa.    2004)    (holding     that     “§     1396a(a)(43)    affords


       10
          Although Sandoval is an implied right of action case and
not a § 1983 case, its reasoning can be applied when determining
whether an enforceable right exists in the § 1983 context. See
Gonzaga, 536 U.S. at 284-85 (“[T]he initial inquiry [in a § 1983
case]--determining whether a statute confers any right at all--is
no different from the initial inquiry in an implied right of action
case.”).

                                           -28-
plaintiffs vindicable private rights”); Westside Mothers II, 454

F.3d at 544 (reversing lower court and ruling that plaintiffs

“stated a cognizable claim under § 1983 for violations of §

1396a(a)(43)(A)”); but see Charlie H. v. Whitman, 83 F. Supp. 2d

476 (D.N.J. 2000).

     Defendants insist that the framework of the statute belies the

conclusion that § 1396a(a)(43) confers a privately enforceable

right.11   Defs.’ Mot. at 8-15; Defs.’ Reply at 15-20. They cast the

EPSDT provisions as merely “plan requirements,” the fulfillment of

which is only one of the many conditions that a state must meet in

order to receive funding.12   Defs.’ Mot. at 9.


     11
           Defendants also argue that the EPSDT language tracks
closely the type of language that our Court of Appeals found
insufficient to create a private right of action in Doe by Fein v.
District of Columbia, 93 F.3d 861 (D.C. Cir. 1996) (per curiam).
Defs.’ Mot. at 13-14; Defs.’ Reply at 21-22. That case involved a
statute requiring states, as a condition of funding, to “provide
that upon receipt of a report of known or suspected instances of
child abuse or neglect an investigation shall be initiated promptly
to substantiate the accuracy of the report.” Doe by Fein, 93 F.3d
at 865 (quoting 42 U.S.C. § 5106(b)(2) (1994)). This language is
plainly different in focus and content from the language at issue
here.    It is programmatic language that targets the persons
regulated, i.e., those who administer a state’s child abuse
programs, and not any individual beneficiary.
     12
          In terms of the statute’s structure, § 1396a(a)(43)
appears in the same section, § 1396a, as provisions that are
individually focused, as well as those that are focused on more
systemic state obligations. Courts have found that surrounding
provisions both do support a private right of action, see, e.g.,
Sabree, 367 F.3d at 182 (finding private right of action under §
§1396a(a)(8),(a)(10), and 1396d(a)(15)), and that some provisions
do not support a private right of action, see, e.g., Equal Access,
509 F.3d at 703 (construing § 1396a(a)(30)).        The framework
                                                    (continued...)

                                -29-
          As the Supreme Court made clear in Gonzaga, the text is

central to determining whether Congress intended to convey a

privately enforceable right. Gonzaga, 536 U.S. at 286. Defendants

do not focus their analysis on the language in § 1396a(a)(43);

instead, Defendants       concentrate   on   that   section’s   surrounding

provisions--and not the actual text of § 1396a(a)(43)--to argue

that no enforceable private rights exist. As the Third Circuit

concisely put it, “[a]dmittedly, plumbing for congressional intent

by balancing the specific language of a few discrete provisions of

Title XIX against the larger structural elements of the statute is

a difficult task. Nonetheless, it is evident, at least to us, that

the statutory language, despite countervailing structural elements

of the statute, unambiguously confers rights which plaintiffs can

enforce.”     Sabree, 367 F.3d at 192.

     In     sum,   the   Court   concludes   that   §   1396a(a)(43)   does

“unambiguously” confer a private right of action as required by

Gonzaga.      The remaining prongs of the private right of action

test--whether the right asserted is so “vague and amorphous” that

its enforcement “strain[s] judicial competence,” and whether the

statute imposes an unambiguous obligation on Defendants--also favor

Plaintiffs’ position.


     12
      (...continued)
argument therefore is not dispositive of the question, and does not
deserve the great weight that Defendants have placed upon it.
While the inquiry into the statute’s structure is indeed important,
it cannot ignore the actual language Congress used in the statute.

                                    -30-
     The right is not too vague and amorphous to be enforced.                    It

plainly requires Defendants to inform eligible individuals of

certain services available to them. The services are delineated in

§   1396d(r),     a   sub-section    referred      to    specifically      in    §

1396a(a)(43).     Section 1396d(r) sets forth in detail the types and

timing   of   treatment     that   shall    be   provided    as    part   of    the

screening, vision, dental, and hearing services due to the patient.

42 U.S.C. § 1396d(r).

     These      statutory    provisions      establish      that    Defendants’

obligation is both clear and enforceable; further, courts can

competently determine whether such statutory guidance is being

followed.     The Court agrees with the Fifth Circuit’s assessment in

Hood that “[t]he EPSDT provisions at issue are no more ‘vague and

amorphous’ than other statutory terms that . . . courts . . . have

found capable of judicial enforcement.”             391 F.3d at 605.            For

instance, the right at issue in this case is no more unenforceable,

and does no more to strain judicial competence, than the right to

reimbursement at “reasonable and adequate rates,” upheld in Wilder.

496 U.S. at 511-12.

     In satisfaction of the third prong, the statutory language

creates a binding obligation. The statute speaks in terms that are

clearly mandatory, as it says that states “must . . . provide.”                  42

U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(r) (describing services in




                                     -31-
detail,     including   what    those   services   “shall   at     a    minimum

include”).

       Courts look to such language to determine whether a binding

obligation has been created. See Blessing, 520 U.S. at 340 (“[T]he

provision giving rise to the asserted right must be couched in

mandatory, rather than precatory, terms.”); Richman, 339 F. Supp.

2d at 640 (“Section 1396a(a)(43) speaks in mandatory terms, as it

mandates that a state plan ‘must’ provide for informing eligible

individuals of EPSDT services, as well as mandates that a state

plan    ‘must’   provide   or   arrange    for   the   provision       of   EPSDT

services.”). For instance, in Wilder, the Supreme Court concluded

that, for purposes of § 1983, a binding obligation arose from the

language, “a state plan ‘must’ ‘provide for payment . . . of

hospital[s].’”     496 U.S. at 2519 (emphasis in original).

       For all the reasons just discussed, the Court concludes that

the statutory text imposes a binding obligation on Defendants to

provide EPSDT services.

       D.    Plaintiffs’ Private Right of Action Is Not Foreclosed by
             Their Status as Third-Party Beneficiaries.

       Defendants also argue that, because Plaintiffs are only third-

party beneficiaries of what is essentially a contract between the

federal government and the District of Columbia, they cannot

enforce Medicaid’s provisions under § 1983. Defs.’ Mot. at 15-17.

To     support   this   far-reaching      position,    Defendants       cite    a

concurrence by Justice Scalia in Blessing suggesting that the only

                                    -32-
rights that can be secured under § 1983 are those that would have

been recognized as rights when § 1983 was originally enacted in

1871.    He reasoned that because a third-party beneficiary had no

enforceable right to compel “a State to make good on its promise to

the Federal Government” in 1871, at the time of the Section’s

enactment, beneficiaries in such cases may have no right to sue in

2010.    520 U.S. at 349-50 (Scalia, J., concurring).

     Obviously, Justice Scalia’s view is not that of the Supreme

Court.    Further, he stresses in the remainder of his concurrence

that the argument above was not even raised before the Court, and

that he addresses it only because he “is not prepared without

further consideration to reject the possibility that third-party-

beneficiary suits simply do not lie.”      Id. at 350.   In short, he

was simply giving an advisory opinion, without even having the

benefit of briefing.

III. CONCLUSION

     For the foregoing reasons, Defendants’ Motion to Terminate is

denied as to the private right of action issue.       An Order shall

issue with this Memorandum Opinion.




                                        /s/
August 5, 2010                         Gladys Kessler
                                       United States District Judge


Copies to: attorneys on record via ECF

                                -33-
