                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3346
                                  ___________

Missouri Child Care Association,         *
doing business as Missouri Coalition     *
of Children's Agencies,                  *
                                         *
             Appellee,                   *
                                         *
       v.                                *
                                         * Appeal from the United States
Denise Cross, Director of the Division * District Court for the
of Family Services of the Missouri       * Western District of Missouri.
Department of Social Services, in her *
official capacity; Dana K. Martin,       *
Director of the Missouri Department      *
of Social Services, in her official      *
capacity,                                *
                                         *
             Appellants.                 *
                                    ___________

                            Submitted: April 15, 2002

                                 Filed: June 28, 2002
                                  ___________

Before BOWMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

      The Missouri Child Care Association (MCCA) brings this 42 U.S.C. § 1983
action against Denise Cross, Director of the Missouri Division of Family Services,
and Dana Martin, Director of the Missouri Department of Social Services
(collectively, the Directors). The MCCA seeks declaratory and injunctive relief to
enforce the foster-care provider reimbursement provisions of the Adoption Assistance
and Child Welfare Act of 1980 (CWA or the Act), 42 U.S.C. §§ 670-679b (1994 &
Supp. V 1999), also known as Title IV-E of the Social Security Act. The Directors
moved for judgment on the pleadings, asserting that they are entitled to the benefit
of the state’s Eleventh Amendment immunity, so that the District Court1 lacks
jurisdiction over them. The court denied the motion, and the Directors appeal.2 We
affirm.

                                          I.

       Enacted by Congress pursuant to its powers under the Spending Clause,3 the
CWA creates a joint federal-state program that provides federal funds to participating
states to pay for certain foster-care and adoption expenses. "The Act provides that
States will be reimbursed for a percentage of foster care and adoption assistance
payments when the State satisfies the requirements of the Act." Suter v. Artist M.,
503 U.S. 347, 351 (1992). Specifically at issue in this suit, the Act imposes upon
participating states the obligation to make "foster care maintenance payments," which
reimburse institutional foster-care providers for a variety of expenses incurred caring
for abused and neglected children. 42 U.S.C. § 672. These payments are to


      1
      The Honorable Nanette J. Laughrey, United States District Judge for the
Western District of Missouri.
      2
       We have jurisdiction over this interlocutory appeal under the collateral-order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949);
Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).
      3
         The Spending Clause grants Congress the power "to pay the Debts and provide
for the common Defence and general Welfare of the United States." U.S. Const. art.
I, § 8, cl. 1.

                                         -2-
      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, and reasonable travel to the child's
      home for visitation. 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.

42 U.S.C. § 675(4)(A).

      The state of Missouri has availed itself of the funds offered by Congress
through the CWA. Although Congress may not require a state to participate in a
program created pursuant to the Spending Clause, once a state agrees to take the
funds offered through such programs the state is bound to "comply with federally
imposed conditions." Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981). The Act requires Missouri to submit to the Secretary of Health and Human
Services (HHS) a state plan for providing foster care and adoption assistance that
meets the standards enacted by Congress. 42 U.S.C. § 671. In Missouri, the
Department of Social Services, through its Division of Family Services, has been
designated to administer the state plan and assure state compliance with the Act. Mo.
Rev. Stat. §§ 207.010, 207.060, 660.010 (2000).

      The MCCA, a trade association whose members are institutional foster-care
providers in Missouri, sued the Directors alleging that they have failed to comply
with the reimbursement requirements applicable to institutional providers set forth
in 42 U.S.C. § 675(4)(A). The MCCA alleges that "State officials have failed to
adopt a cost-based method of reimbursement to the foster care providers," Br. of
Appellee at 5, and that in fact they are reimbursing providers "based on the
mathematical formula of dividing the state budget for state-wide foster care by the
approximate number of days or units of service." Id. at 7. Thus, the MCCA argues,


                                          -3-
the state officials reimburse providers in violation of the Act's provisions because
their calculations are "based solely on budget constraints and not on any other
methodology." Id.

      The Directors respond that this suit is effectively a suit against the state and
should be dismissed on the ground "of Missouri’s immunity from suit in federal court,
embodied in the Eleventh Amendment." Br. of Appellants at 5.

             That a State may not be sued without its consent is a fundamental
      rule of jurisprudence having so important a bearing upon the
      construction of the Constitution of the United States that it has become
      established by repeated decisions of this [C]ourt that the entire judicial
      power granted by the Constitution does not embrace authority to
      entertain a suit brought by private parties against a State without consent
      given: not one brought by citizens of another State, or by citizens or
      subjects of a foreign State, because of the Eleventh Amendment; and not
      even one brought by its own citizens, because of the fundamental rule
      of which the Amendment is but an exemplification.

Ex parte New York, 256 U.S. 490, 497 (1921); see also U.S. Const. amend. XI; Alden
v. Maine, 527 U.S. 706, 712-13 (1999); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261,
267-68 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana,
134 U.S. 1, 15 (1890). Ex parte Young, 209 U.S. 123 (1908), carves out an exception
to that fundamental rule: state officials may be sued in their official capacities for
prospective injunctive relief when the plaintiff alleges that the officials are acting in
violation of the Constitution or federal law. Id. at 159-60; see also Green v. Mansour,
474 U.S. 64, 68 (1985). This exception exists to "preserve the constitutional structure
established by the Supremacy Clause." Antrican ex rel. Antrican v. Odom, No. 01-
1693, 2002 WL 939566, at *3 (4th Cir. May 9, 2002). According to the Directors,
Ex parte Young does not apply to this suit for three distinct reasons. We review de
novo the District Court's denial of judgment on the pleadings. Randolph v. Rodgers,
253 F.3d 342, 345 (8th Cir. 2001) (reviewing de novo denial of state's motion to

                                          -4-
dismiss on basis of Eleventh Amendment immunity). We reject in turn each of the
Directors' arguments.

                                           II.

       The Directors argue that Ex parte Young is unavailable to the MCCA in this
suit because the CWA has a detailed remedial scheme that manifests Congress's intent
to preclude such suits and thus make federal jurisdiction unavailable. Relying on the
Supreme Court's decision in Seminole Tribe, 517 U.S. at 74-75, the Directors point
out that "[w]here Congress has created a detailed remedial scheme for the
enforcement against a State of a statutory right, state officials are not subject to
enforcement of that right by the federal courts through prospective injunctive relief."
Br. of Appellants at 8.4 As far as we have been able to discern, the Directors raise
this ground for reversal for the first time in this appeal.5 The MCCA has not,
however, raised any objection to our consideration of this issue. Although we are not
entirely convinced that this argument is properly before us, see Smith v. City of Des
Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996), we will nonetheless address it on
the merits. We conclude that the CWA does not reflect any intent by Congress to
limit Ex parte Young actions, and the Directors are not entitled to the state's Eleventh
Amendment immunity under this rationale.



      4
        In their reply brief, the Directors assert that, under Seminole Tribe v. Florida,
any remedial scheme, limited or comprehensive, forecloses § 1983 actions and thus
this suit. Seminole Tribe simply does not support such an assertion. See 517 U.S. 44,
73-76 (1996).
      5
        The argument neither appears in their memorandum in support of judgment
on the pleadings, nor is it addressed in the District Court's decision. In the District
Court, the Directors only argued that the CWA is not the "supreme law" of the land,
that the Act did not specifically condition receipt of federal funds on a state's consent
to an Ex parte Young suit, and that Missouri is the real party in interest.

                                          -5-
       The Directors compare this case to Seminole Tribe and suggest that the CWA
has a remedial scheme that, like the remedial scheme under the Indian Gaming
Regulatory Act (IGRA), Pub. L. No. 100-497, § 11(d), 102 Stat. 2467, 2475 (1988)
(codified at 25 U.S.C. § 2710(d) (1994)), demonstrates Congress's intent to preclude
Ex parte Young actions. We disagree. The plaintiffs in Seminole Tribe brought their
Ex parte Young suit against the governor of Florida, seeking injunctive relief to
compel negotiation of a tribal gaming compact.6 The Court refused to apply Ex parte
Young, reasoning that it was unavailable because the statute included a "carefully
crafted and intricate remedial scheme" that greatly circumscribed the powers of the
federal district court in cases arising under the statute's provisions. Seminole Tribe,
517 U.S. at 73-76. The IGRA's remedial scheme prescribes the role of the courts in
resolving disputes between the tribes and the states, and severely limits that role. 25
U.S.C. §2710(d)(3) (dispute resolution provision). Specifically, if compact
negotiations fail and the parties go to court, the statute provides that, upon a finding
that the state failed to negotiate in good faith, the court's only recourse is to issue an
order directing the state and the tribe to conclude a compact within sixty days. At that
point, if the parties disregard the court's order, the court has no further power to hold
the parties in contempt: the statute prescribes that the parties submit their respective
versions of the compact to a mediator who then selects a version to become the
agreement between the parties. Further disagreements are then referred to the
Secretary of the Interior. By limiting the district court's powers in such a fashion,
"Congress chose to impose upon the State a liability that is significantly more limited
than would be the liability upon the state officer under Ex parte Young" and thus



      6
        The tribe sued under the Indian Gaming Regulatory Act's provision granting
jurisdiction to the district courts over "any cause of action initiated by an Indian Tribe
arising from the failure of a State to enter into" compact negotiations or to negotiate
in good faith. Indian Gaming Regulatory Act (IGRA), Pub. L. No. 100-497,
§ 11(d)(6)(B)(i), 102 Stat. 2467, 2477 (1988) (codified at 25 U.S.C.
§ 2710(d)(6)(B)(i) (1994)).

                                           -6-
indicated its intent to foreclose Ex parte Young actions. Seminole Tribe, 517 U.S. at
75-76.

        In contrast to the IGRA, the CWA merely provides for oversight and funding
restrictions that may be imposed by the Secretary of HHS. The statute requires HHS
to develop a rating system to grade state compliance in providing adoption assistance
and foster-care services. 42 U.S.C. § 679b. The regulations promulgated under the
Act, which the Directors argue comprise the heart of the Act's remedial scheme,
provide for an administrative review process that leads to the Secretary's ultimate
authority to withhold funds from noncompliant states. See 45 C.F.R. §§ 1355, 1356
(2001). Neither the review process nor the Secretary's ultimate authority to withhold
funds limits the powers of the court or the remedies available in a manner comparable
to the restrictions imposed by the IGRA. Moreover, administratively created schemes
are generally not sufficient to foreclose private actions, such as an action under Ex
parte Young or § 1983, because an administrative act is not sufficiently indicative of
Congress's true intent to limit the available remedies. See Blessing v. Freestone, 520
U.S. 329, 346 (1997); Krueger v. Lyng, 927 F.2d 1050, 1055 (8th Cir. 1991). Thus,
Seminole Tribe does not compel us to bar the MCCA's suit on Eleventh Amendment
immunity grounds.

       Moreover, we think that the Supreme Court's decision in Blessing, 520 U.S. at
346-48, supports our conclusion that the CWA does not contain a remedial scheme
indicative of Congress's intent to foreclose the remedies sought by the MCCA.
Blessing discusses whether a statutory remedial scheme is sufficient to foreclose a
§ 1983 action. Although that discussion on its face might appear to address a
different question than the one raised by the Directors, upon closer examination it is
persuasively similar. In Blessing the plaintiffs, seeking prospective injunctive relief,
sued the directors of a state agency charged with administering a federal spending-




                                          -7-
clause program.7 Thus, although the opinion in Blessing does not specifically
acknowledge it, the case necessarily represents an application of Ex parte Young.
The Court employed essentially the same analysis in Blessing as in Seminole Tribe
to resolve whether the remedial schemes at issue indicated congressional intent to
foreclose judicial remedies. See Blessing, 520 U.S. at 346 (concluding that a § 1983
action is unavailable only when allowing such an action would be inconsistent with
Congress's carefully crafted statutory scheme); Seminole Tribe, 517 U.S. at 74
("When the design of a Government program suggests that Congress has provided
what it considers adequate remedial mechanisms for constitutional violations that
may occur in the course of its administration, we have not created additional . . .
remedies." (alteration in original) (quoting Schweiker v. Chilicky, 487 U.S. 412, 423
(1988))). Applying that rationale, the Court held that the power of the Secretary of
HHS to oversee state compliance with Title IV-D of the Social Security Act, and to
withhold funds from a noncompliant state, did not amount to the type of carefully
crafted scheme that is sufficient to demonstrate Congress's intent to foreclose the
availability of a § 1983 action.

      The remedies available under the CWA, federal oversight and withholding of
funds from noncompliant states, are very similar to the remedies addressed by the
Court in Blessing—so similar that we think the Court's decision practically compels
our conclusion. We therefore hold that the Directors are not entitled to Eleventh
Amendment immunity on this ground. See also Joseph A. ex rel. Wolfe v. Ingram,


      7
        Blessing also addresses a section of the Social Security Act. In order to
qualify for certain federal welfare funds, a state must "certify that it will operate a
child support enforcement program that conforms with the numerous requirements
set forth in Title IV-D of the Social Security Act." Blessing v. Freestone, 520 U.S.
329, 333 (1997) (citing 42 U.S.C. §§ 651-669b (1994 & Supp. V 1999)). The
plaintiffs in Blessing, mothers eligible to receive child support enforcement services
from the state, sought injunctive relief to force the state to achieve "substantial
compliance" with Title IV-D's requirements. Id.

                                         -8-
275 F.3d 1253 (10th Cir. 2002) (holding that the CWA does not include a remedial
scheme sufficient to preclude an Ex parte Young action); cf. Suter, 503 U.S. at 360
(opining in dicta that the CWA "may not provide a comprehensive enforcement
mechanism so as to manifest Congress' intent to foreclose remedies under § 1983").8

                                        III.

       The Directors also urge this Court to conclude that Ex parte Young does not
apply to the MCCA's suit because the CWA is not part of the supreme law of the land
under the Supremacy Clause.9 This unusual assertion follows, the Directors argue,
from two legal conclusions. First, the "legal fiction" of Ex parte Young exists to
"give[] life to the Supremacy Clause." Green, 474 U.S. at 68. Second, the Directors
assert that programs created pursuant to Congress's Spending Clause powers, such as
the program created by the CWA, are merely contracts with the participating states
and therefore those statutes are not "supreme law." For this assertion the Directors

      8
       The Directors are not aided in this argument by the Supreme Court's recent
decision in Gonzaga University v. Doe, No. 01-679, 2002 WL 1338070 (U.S.
June 20, 2002). In Gonzaga, the Court holds that the Family Educational Rights and
Privacy Act (FERPA), which provides for a review board established by the Secretary
of Education to hear individual complaints of violations of the statute's provisions,
does not create any individual rights in students or parents that are enforceable in
private actions under § 1983. That individuals can bring a complaint for violations
of FERPA to a review board distinguishes FERPA from the provisions of the CWA,
which provides for no such complaint process for institutional care providers. And,
because the Court holds that FERPA does not create any private right to enforce, the
Court expressly notes that it does not need to decide whether FERPA has a
comprehensive remedial scheme designed to preclude judicial remedies. 2002 WL
1338070, at *10 n.8.
      9
        The Supremacy Clause provides that "the Laws of the United States . . . shall
be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2.


                                        -9-
rely on a district court opinion from the Eastern District of Michigan. The Sixth
Circuit has recently rejected in toto the reasoning employed by the district court in so
concluding, Westside Mothers v. Haveman, No. 01-1494, 2002 WL 987291 (6th Cir.
May 15, 2002), aff'g in part and rev'g in part 133 F. Supp. 2d 549 (E.D. Mich. 2001),
and we have found no other decision in which any federal court of appeals has held
that legislation enacted pursuant to Congress’s Spending Clause powers is not part
of the supreme law of the land. See, e.g., Antrican, 2002 WL 939566, at *7 (rejecting
the "novel position" of the district court in Westside Mothers as being "at odds with
existing, binding" Supreme Court precedent). We agree with the Sixth Circuit's
reasoned rejection of this argument and likewise reject the argument here.

       First, while it is true, as the Directors argue, that "State compliance with
spending power legislation is dependent upon State agreement to comply,” Br. of
Appellants at 14, we reject the notion that, in the context of an Ex parte Young suit,
a state's agreement to participate in a federal aid program amounts to nothing more
under the Constitution than a contract to be interpreted under ordinary contract
principles. As the Sixth Circuit explained, the district court in Westside Mothers
misinterpreted language from the Supreme Court's opinions in Pennhurst and
Blessing. In Pennhurst, the Court used contract law as an analogy to describe the
legal relationship between the federal government and participating states created by
the Medicaid program. "[L]egislation enacted pursuant to the spending power is
much in the nature of a contract: in return for federal funds, the States agree to
comply with federally imposed conditions." Pennhurst, 451 U.S. at 17 (emphasis
added). In his concurrence in Blessing, Justice Scalia further drew upon the contract
analogy employed by the Court in Pennhurst. Blessing, 520 U.S. at 349 (Scalia, J.,
concurring). As the Sixth Circuit readily recognized, the Court "makes clear that it
is using the term 'contract' metaphorically, to illuminate certain aspects of the
relationship formed between a State and the federal government in a program such
as Medicaid. It does not say that Medicaid is only a contract." Westside Mothers,
2002 WL 987291, at *3; see also Barnes v. Gorman, No. 01-682, 2002 WL 1305773,

                                         -10-
at *4 n.2 (U.S. June 17, 2002) ("We do not imply, for example, that suits under
Spending Clause legislation are suits in contract, or that contract-law principles apply
to all issues that they raise."). The Directors urge us to apply the same
misinterpretation of Pennhurst and Blessing. The Sixth Circuit refused to make the
logical leap that the Directors urge, from describing such programs as "like contracts"
to treating such programs "as nothing more than contracts." Like the Sixth Circuit,
we refuse to make that leap, as it is unsupported by the applicable case law. See
Blessing, 520 U.S. at 329 (recognizing viability of § 1983 action brought under Ex
parte Young for violation of federal rights created under Spending Clause programs);
Wilder v. Va. Hosp. Ass'n, 496 U.S. 498 (1990) (recognizing viability of § 1983
claim for violation of federal right involving federal-state Medicaid program).

       Second, in an analogous context, the Supreme Court has specifically held that,
under the Supremacy Clause, federal Spending Clause legislation trumps conflicting
state statutes or regulations. See Blum v. Bacon, 457 U.S. 132, 145-46 (1982)
(holding the provisions of a New York welfare program that conflicted with federal
regulations under the Social Security Act invalid under the Supremacy Clause);
Carleson v. Remillard, 406 U.S. 598, 604 (1972) (holding a California regulation that
conflicted with the Social Security Act invalid under the Supremacy Clause);
Townsend v. Swank, 404 U.S. 282, 285 (1971) (holding an Illinois statute and
regulation that conflicted with the Social Security Act invalid under the Supremacy
Clause). This Court has applied these cases to invalidate state regulations under the
Supremacy Clause. Jackson v. Rapps, 947 F.2d 332, 337 (8th Cir. 1991)
(invalidating a Missouri regulation under the Supremacy Clause because it conflicted
with federal regulations under Title IV-A of the Social Security Act, 42 U.S.C.
§§ 601-615 (1988)), cert. denied, 503 U.S. 960 (1992). These cases stand for the
proposition that the Supremacy Clause indeed applies to Spending Clause enactments
and makes them supreme when challenged by conflicting state enactments. We see
no reason for our treatment to differ when the action challenged is the state's



                                         -11-
implementation of federal requirements. Thus, the MCCA may seek to enforce Title
IV-E's requirements in this Ex parte Young action.

                                           IV.

       The Directors' final argument that Ex parte Young does not apply to this case
also relies heavily on the repudiated reasoning of the district court in Westside
Mothers. A state is the real party in interest, the Directors argue, when state officials
act within their lawful authority. In other words, the state is the real party in interest
when officials are accused of exercising the authority delegated to them in a
substandard or improper manner. The Directors argue that they have been sued by
the MCCA precisely because they allegedly are administering Missouri's foster-care
and adoption-assistance programs incorrectly. Because they are accused of
implementing the program incorrectly, rather than of acting beyond their authority
under federal law or of acting under state authority that is "void in the face of contrary
federal law," Br. of Appellants at 16, the Directors conclude that Missouri is the real
party in interest in this litigation.

       We view the distinction the Directors seek to draw as something of a red
herring. The CWA requires the state to reimburse providers for specified expenses.
The Act does not grant Missouri officials any discretion to deny providers these
payments: "Each State with a plan approved under this part shall make foster care
maintenance payments (as defined in section 675(4) of this title) . . . ." 42 U.S.C.
§ 672(a). The Directors are responsible for meeting this requirement, and the MCCA
claims that the Directors are failing to do so. "[S]ince Ex parte Young, . . . it has been
settled that the Eleventh Amendment provides no shield for a state official confronted
by a claim that he had deprived another of a federal right under the color of state




                                          -12-
law." Hafer v. Melo, 502 U.S. 21, 30 (1991) (quoting Scheuer v. Rhodes, 416 U.S.
232, 237 (1974)).10

       Finally, the Directors argue that because Missouri may be required to increase
its expenditure of state funds to comply with a judgment in this case, the state is the
real party in interest. But this argument merely states a real-world consequence that
the legal fiction created by Ex parte Young renders of no jurisprudential significance.
That as a practical matter this suit may result in an order requiring Missouri to change
the method it employs to calculate foster-care maintenance payments, and thus going
forward to access funds in its treasury, does not remove this suit from the class of
suits allowed under Ex parte Young. See Milliken v. Bradley, 433 U.S. 267, 289
(1977) (reaffirming that Ex parte Young "permits federal courts to enjoin state
officials to conform their conduct to requirements of federal law, notwithstanding a
direct and substantial impact on the state treasury"); Edelman v. Jordan, 415 U.S. 651,
667-68 (1974); Antrican, 2002 WL 939566, at *4. "[T]he proper focus [of our
immunity inquiry] must be directed at whether the injunctive relief sought is
prospective or retroactive in nature," and not on "an injunction's impact on the State's
treasury." Antrican, 2002 WL 939566, at *4. We conclude that the injunctive relief
requested by the MCCA is prospective in nature and thus falls within Ex parte
Young. The Directors are not entitled to Eleventh Amendment immunity on this
basis.

      10
        The state of Missouri has volunteered to participate in this program, and has
thus agreed to abide by the legal requirements set forth in the CWA. The state might
have chosen not to participate or to run its own foster-care program. But having
chosen to receive federal dollars, it is bound either to run its program in conformity
with the CWA or to forego the federal funds. See Antrican ex rel. Antrican v. Odom,
No. 01-1693, 2002 WL 939566, at *8-*9 (4th Cir. May 9, 2002); Gorrie v. Bowen,
809 F.2d 508, 520 (8th Cir. 1987) ("The state voluntarily accepts the conditions
imposed [upon states receiving federal funds] by Congress and, once it chooses to do
so, the supremacy clause obliges it to comply with federal . . . requirements."
(footnote omitted)).

                                         -13-
     For the foregoing reasons, we affirm the denial of the Directors' motion for
judgment on the pleadings and remand to the District Court for further proceedings.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -14-
