                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2147


KENNETH HENSLEY, as adoptive parents of BLH; ANGELA
HENSLEY, as adoptive parents of BLH; BLH, by parents-
general guardians Kenneth and Angela Hensley,

                 Plaintiffs - Appellees,

           v.

LILLIAN KOLLER, individually and in her official capacity as
State Director for the South Carolina Department of Social
Services;   ELIZABETH  PATTERSON,  individually   as  Former
Director of the South Carolina Department of Social
Services; KIM AYDLETTE, individually as Former Director of
the South Carolina Department of Social Services; KATHLEEN
HAYES, individually as Former Director of the South Carolina
Department of Social Services,

                 Defendants - Appellants,

           and

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES,

                 Defendant.


Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:11-cv-02827-GRA)


Argued:   May 16, 2013                      Decided:    July 3, 2013


Before MOTZ, DAVIS, and WYNN, Circuit Judges.


Reversed and remanded by published opinion.         Judge Motz wrote
the opinion, in which Judge Davis and Judge Wynn joined.


ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellants.   Timothy Ryan Langley, HODGE &
LANGLEY LAW FIRM, P.C., Spartanburg, South Carolina, for
Appellees.   ON BRIEF: William H. Davidson, II, Joel S. Hughes,
DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for
Appellants.   Charles J. Hodge, HODGE & LANGLEY LAW FIRM, P.C.,
Spartanburg, South Carolina; James Fletcher Thompson, JAMES
FLETCHER   THOMPSON,  LLC,  Spartanburg,  South  Carolina,  for
Appellees.




                                2
DIANA GRIBBON MOTZ, Circuit Judge:

      A minor, by and through her adopted parents, brought this

class action challenging South Carolina’s reduction of monthly

adoption assistance benefits.            She claims the reduction violates

the   Adoption    Assistance       and     Child    Welfare       Act,   and     seeks

declaratory and injunctive relief, as well as money damages.

The district court certified the class and denied the parties’

cross-motions    for     summary       judgment.          For   the   reasons     that

follow, we reverse and remand.



                                         I.

      The South Carolina Department of Social Services (“DSS”)

provides     adoption         assistance       subsidies        and   foster      care

maintenance payments pursuant to federal funding authorized by

the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C.

§ 670 et seq. (2006) (“the Act”).               To receive funding under the

Act, a state must develop a plan for a subsidy and maintenance

program and must obtain approval of that plan by the United

States     Secretary     of    Health    and     Human     Services.       See     id.

§ 671(a).

      The Act sets forth specific requirements governing foster

care maintenance payments, id. § 672, and adoption assistance

payments, id. § 673.           With respect to the latter, a state with

an    approved    plan        “shall    enter      into     adoption     assistance

                                           3
agreements . . . with the adoptive parents of children with

special needs.”     Id. § 673(a)(1)(A).             The Act further provides:

      The amount of the [adoption assistance] payments . . .
      shall be determined through agreement between the
      adoptive parents and the State . . . , which shall
      take into consideration the circumstances of the
      adopting parents and the needs of the child being
      adopted, and may be readjusted periodically, with the
      concurrence of the adopting parents . . . , depending
      upon changes in such circumstances.     However, in no
      case may the amount of the adoption assistance payment
      . . . exceed the foster care maintenance payment which
      would have been paid during the period if the child
      with respect to whom the adoption assistance payment
      is made had been in a foster family home.

Id. § 673(a)(3).      The adoption subsidy agreement between DSS and

adoptive parents, referenced in § 673, establishes the payment

rate for an adoptive child.



                                     II.

      In April 1997, BLH, a minor child, was placed in temporary

foster care with Angela and Kenneth Hensley.                 Beginning in 1998,

DSS approved monthly foster care maintenance payments of $675 to

Mr.   and   Mrs.   Hensley   for   the       care    of   BLH.   These   payments

included a “Difficulty of Care Rate” upward adjustment because

DSS found BLH to be a special needs child.                   In early 1999, Mr.

and Mrs. Hensley applied for a court order declaring them BLH’s

adoptive parents.

      In preparing their application, Mr. and Mrs. Hensley sought

to convert the foster care maintenance payment into an adoption

                                         4
assistance subsidy.                On March 22, 1999, DSS and Mr. and Mrs.

Hensley entered into an Adoption Subsidy Agreement under which

DSS     agreed    to     furnish        the        Hensleys       with      monthly      adoption

assistance payments of $675.                       Two months later, a state court

issued    an     order    declaring         Mr.        and   Mrs.    Hensley       the   adoptive

parents of BLH.              Mr. and Mrs. Hensley continued to receive the

$675 adoption subsidy monthly for three years.

      But in June 2002, then-DSS Director Elizabeth G. Patterson

announced that as a result of “South Carolina’s budget crisis,”

DSS   would      reduce       by     twenty      dollars      all     monthly      foster       care

maintenance          payments         and        adoption           assistance         subsidies,

beginning        that     July.             Pursuant         to     this     across-the-board

reduction,       BLH’s       subsidy        decreased        to     $655.         In    2004,    DSS

rescinded the twenty dollar reduction to foster care maintenance

payments,      but     DSS     has    never      rescinded          the    2002    reduction      to

adoption assistance subsidies; thus, for BLH, the latter remains

$655.

      In September 2011, BLH, by and through Mr. and Mrs. Hensley

(collectively, “the Hensleys”), filed in state court a class

action     under        42     U.S.C.        §     1983       against        Lillian      Koller,

individually and in her official capacity as director of DSS.

Koller    removed        the       action     to       federal      court.        The    Hensleys

amended their complaint three times, removed the South Carolina

Department of Social Services as a party, and added Patterson,

                                                   5
Kim   Aydlette,     and   Kathleen       Hayes,      individually         as     former

directors of DSS (collectively, with Koller, “the Directors”).

      The   Directors     then    moved       for   summary     judgment.           The

Hensleys opposed the motion and filed a combined cross-motion

for summary judgment and motion for class certification.                          After

the   district    court   heard    argument,        it    granted   the    Hensleys’

motion for class certification and denied the cross-motions for

summary judgment.     The Directors timely noted this appeal.



                                        III.

      We have jurisdiction over this interlocutory appeal because

the   Directors’     assertion     of        qualified     immunity       from     suit

presents purely legal questions.               See Mitchell v. Forsyth, 472

U.S. 511, 530 (1985).            We review de novo a district court’s

denial of qualified immunity.           Johnson v. Caudill, 475 F.3d 645,

650 (4th Cir. 2007).          In doing so, “[t]o the extent that the

district court has not fully set forth the facts on which its

decision is based, we assume the facts that may reasonably be

inferred from the record when viewed in the light most favorable

to the plaintiff.”        See Waterman v. Batton, 393 F.3d 471, 473

(4th Cir. 2005) (citing Winfield v. Bass, 106 F.3d 525, 533–35

(4th Cir. 1997) (en banc)).

      Qualified immunity shields government officials performing

discretionary     functions      from    suits      for    civil    damages       under

                                         6
§ 1983.    Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d

292, 306 (4th Cir. 2006).                 The qualified immunity inquiry asks

(1)   whether    an     official       violated         a    federal      right,    and    (2)

whether   that    right      was      clearly     established          at   the    time    the

official acted.         See Saucier v. Katz, 533 U.S. 194, 200 (2001).

A court may address the second question -- whether a right is

clearly established -- without ruling on the first -- existence

of the right.           Pearson v. Callahan, 555 U.S. 223, 232, 236

(2009).    But “there are cases in which there would be little if

any conservation of judicial resources to be had by beginning

and   ending     with    a       discussion       of    the      ‘clearly     established’

prong.”   Id. at 236.

      This is such a case.                 The Hensleys seek injunctive and

declaratory      relief          in    addition         to       money      damages.         A

determination     that       a    right    is     not       clearly      established      only

shields   a    state     official       from      money         damages.    See    Akers    v.

Caperton, 998 F.2d 220, 226-28 (4th Cir. 1982) (holding clearly

established law protected state officials only from liability

for money damages, and so remanding case for consideration of

claim for equitable relief).                Thus, if we resolved the case on

the ground that no clearly established law permits an award of

damages against the state officials, the case would necessarily

return    to    the     district       court      for       a    determination       of    the

availability of injunctive and declaratory relief.                                 Here, the

                                              7
“conservation of judicial resources,” Pearson, 555 U.S. at 236,

weighs strongly in favor of resolving the question of whether

the Directors violated the Hensleys’ federal rights.

      For this reason, we begin (and end) with the first step of

Saucier’s         two-step       inquiry       --      determination         of       whether

§ 673(a)(3) creates a privately enforceable right to parental

concurrence, which the Directors have violated.



                                              IV.

      “[U]nless         Congress      speak[s]        with     a     clear   voice,      and

manifests         an    unambiguous        intent        to        create    individually

enforceable rights, federal funding provisions provide no basis

for private enforcement by § 1983.”                     Gonzaga Univ. v. Doe, 536

U.S. 273, 280 (2002) (internal quotation marks omitted).                                  In

Blessing     v.    Freestone,        the   Supreme      Court       announced     a   three-

factor     test        to     determine    whether        a    particular         statutory

provision gives rise to a federal right privately enforceable

under 42 U.S.C. § 1983:

      First, Congress must have intended that the provision
      in question benefit the plaintiff.         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.
      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.

520   U.S.    329,          340-41   (1997)        (internal    quotation       marks    and

                                               8
citations omitted).              Of course, even if a statute meets the

Blessing three-factor test establishing a privately enforceable

right, a plaintiff cannot recover unless it can properly plead a

violation of that statutory right.                   In this case we hold that

the statute, § 673(a)(3), does set forth a privately enforceable

right, but that the Hensleys have failed to plead any violation

of that right by the Directors.

                                           A.

       Following        the   Blessing     three-factor      test,     we   initially

consider whether the Hensleys have pled a violation of a federal

right.

       As   to    the    first    Blessing       question,   whether    §   673(a)(3)

“confer[s] rights on a particular class of persons,” Gonzaga,

536 U.S. at 285 (internal quotation marks omitted), we agree

with   the       only   other    circuit     to    address   that    question   that

§ 673(a)(3) does “evinc[e] a clear intent to create a federal

right,” see ASW v. Oregon, 424 F.3d 970, 975-76 (9th Cir. 2005).

For the Act provides that the adoption assistance payments:

       shall be determined through agreement between the
       adoptive parents and the State . . . , which shall
       take into consideration the circumstances of the
       adopting parents and the needs of the child being
       adopted, and may be readjusted periodically, with the
       concurrence of the adopting parents . . . , depending
       upon changes in such circumstances.




                                             9
42 U.S.C. § 673(a)(3) (emphasis added). 1

      In    considering    the    second     Blessing   factor,    we    determine

whether the asserted right is “so ‘vague and amorphous’ that its

enforcement would strain judicial competence.”                  520 U.S. at 340-

41.       The Directors argue that the term “concurrence” is too

“vague[] and amorphous[]” to create an enforceable right.                        We

disagree.     “In interpreting the plain language of a statute, we

give the terms their ordinary, contemporary, common meaning.”

Minor v. Bostwick Labs., Inc., 669 F.3d 428, 435 (4th Cir. 2012)

(internal     quotation     marks    omitted).        Black’s    Law    Dictionary

defines     “concurrence”    as     “[a]greement;     assent.”         Black’s   Law

Dictionary (9th ed. 2009).            Thus, § 673(a)(3) clearly provides

that a state may not readjust an adoption assistance payment

amount      without   an    adoptive       parent’s     “concurrence,”       i.e.,

agreement or assent.

      Turning to Blessing’s final factor, we examine whether the

statute     “unambiguously    impose[s]       a   binding   obligation      on   the

State[].”      520 U.S. at 341.        To do so we must resolve whether

      1
       The Directors contend that the Act cannot be challenged by
BLH, or Mr. and Mrs. Hensley in their capacity “as adoptive
parents of BLH,” because it contemplates only an agreement
between the state and the adoptive parents.        This argument
fails. The Act provides that its stated purpose is to “enabl[e]
each State to provide . . . adoption assistance for children
with special needs.”    42 U.S.C. § 670 (emphasis added).    This
language clearly reveals Congressional “inten[t] to confer
individual rights upon” this “class of beneficiaries.”        See
Gonzaga, 536 U.S. at 285.


                                        10
“the provision giving rise to the asserted right” is “couched in

mandatory, rather than precatory, terms.”                 Id.    In this case,

the operative “provision,” § 673(a)(3), requires states to enter

into   agreements     with   adoptive     parents    to     determine   adoption

assistance    payments.       It    further   requires       that   such    agreed

determinations “take into consideration the circumstances of the

adopting parents and the needs of the child being adopted.”                      Id.

See ASW, 424 F.3d at 976 (“[T]here is no ambiguity as to what

[states must] do under § 673(a)(3) as a condition of receiving

federal funding under [the Act].”).                And if a state wants to

readjust the agreed-to payments, it must have “the concurrence

of the adopting parents” to do so, with the limited exception we

address below.       42 U.S.C. § 673(a)(3).

       For   these    reasons,     we   conclude    that,    pursuant      to    the

Blessing test, § 673(a)(3) does give rise to a limited privately

enforceable federal right cognizable under 42 U.S.C. § 1983.

                                        B.

       But only violations of such enforceable rights can provide

a basis for recovery.            See Saucier, 533 U.S. at 200 (“[T]he

first inquiry must be whether a . . . right would have been

violated on the facts alleged . . . .” (emphasis added)).                       Thus,

we must also determine whether the Hensleys have alleged facts

establishing that the Directors violated the Hensleys’ rights

under § 673(a)(3) when the Directors reduced adoption assistance

                                        11
subsidies.

      The     statute’s       limited      exception       speaks       to     this    very

question.     Section 673(a)(3) provides:

      in no case may the amount of the adoption assistance
      payment . . . exceed the foster care maintenance
      payment which would have been paid during the period
      if the child with respect to whom the adoption
      assistance payment is made had been in a foster family
      home.

42   U.S.C.      §   673(a)(3).       The    most     logical       reading      of    this

language      is     that   the    statute       prohibits      adoption       assistance

subsidies that exceed foster care maintenance payments. 2                              As a

result, § 673(a)(3) establishes a right to parental concurrence

in subsidy readjustment determinations except when the subsidy

must be reduced due to reductions in foster care maintenance

payments.

      It    is       undisputed     that     DSS     reduced      the        foster    care

maintenance        payments   by   twenty        dollars   at   the     same    time    DSS

reduced the adoption assistance subsidy by the same amount.                             The

Hensleys do not contend that at any time prior to the 2002

reduction, the adoption assistance subsidy they received for BLH

was less than BLH’s $675 foster care maintenance payment.


      2
       The policy manual issued by the United States Department
of Health & Human Services, which administers the federal
funding authorized by the Act, supports this reading of
§ 673(a)(3). See Admin. for Children & Families, U.S. Dep’t of
Health & Human Servs., Child Welfare Policy Manual § 8.2D.4
(2012).


                                            12
     It    was   only   in    2002,    when      South       Carolina    decreased      by

twenty dollars all foster care maintenance payments, that the

State also decreased BLH’s adoption assistance subsidy by twenty

dollars.     The    State’s    failure      to    do     so    would    have     violated

federal law.       For, under § 673(a)(3), a failure to reduce BLH’s

adoption assistance payment would have resulted in a payment

“exceed[ing] the foster care maintenance payment” she would have

received had she remained in foster care.                       For these reasons,

the Hensleys cannot establish that the Directors violated the

Hensleys’ rights under the Act and therefore the Directors are

entitled to qualified immunity. 3



                                        V.

     For   the   reasons     stated,    we    reverse         the   judgment      of   the

district   court    and   remand      the   case       for    entry     of   a   judgment

consistent with this opinion.



                                                              REVERSED and REMANDED




     3
       The Hensleys also argue that the Directors violated their
parental concurrence rights when DSS later increased foster care
maintenance payments without also increasing the adoption
assistance subsidy.      However, the 2004 increase did not
“readjust” the amount of the adoption assistance subsidies;
accordingly, the Directors’ 2004 action did not trigger –- let
alone violate -- the parental concurrence requirement.


                                        13
