                                                                           FILED
                           NOT FOR PUBLICATION                              APR 05 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CALIFORNIA ALLIANCE OF CHILD                     No. 09-17649
AND FAMILY SERVICES,
                                                 D.C. No. 3:09-cv-04398-MHP
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

JOHN A. WAGNER, Director of the
California Department of Social Services,
in his official capacity; GREGORY ROSE,
Deputy Director of the Children and
Family Services Division of the California
Department of Social Services, in his
official capacity,

              Defendants - Appellants.



CALIFORNIA ALLIANCE OF CHILD                     No. 10-15593
AND FAMILY SERVICES,
                                                 D.C. No. 3:06-cv-04095-MHP
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

JOHN WAGNER, Director of the
California Department of Social Services,
in his official capacity; GREGORY ROSE,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Deputy Director of the Children and
Family Services Division of the California
Department of Social Services, in his
official capacity,

              Defendants - Appellants.

                   Appeals from the United States District Court
                       for the Northern District of California
                  Marilyn H. Patel, Senior District Judge, Presiding

                      Argued and Submitted January 12, 2011
                             San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

      These appeals concern the same parties and legal issues and have been

consolidated for the purpose of disposition.

      In Appeal No. 10-15593, Defendant-Appellants John Wagner, Director of

the California Department of Social Services, and Gregory Rose, Deputy Director

of the Children and Family Services Division of the California Department of

Social Services, state officials named in their official capacities (State), appeal the

scope of the district court’s judgment in favor of Plaintiff-Appellee California

Alliance of Child and Family Services (Alliance), entered on remand from this




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                            2
court in Cal. Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th

Cir. 2009) (Allenby).

      In Appeal No. 09-17649, the State appeals the scope of the district court’s

preliminary injunction order in favor of Alliance that enjoins the implementation of

a ten percent reduction in foster care maintenance payment rates mandated by

recently-enacted state legislation. See Cal. Welf. & Inst. Code §§ 11462(g)(5),

(f)(2)(A).

      We review the scope of injunctive relief for abuse of discretion. See Internet

Specialties West, Inc. v. Milon-DiGiorgio Enterprises, Inc., 559 F.3d 985, 993 (9th

Cir. 2009). In both appeals, the State contends that the district court abused its

discretion by granting injunctive relief that requires California to increase funding

for the approximately forty-one percent of resident foster children who do not meet

the eligibility criteria of the Child Welfare Act, 42 U.S.C. § 670 et seq. See 42

U.S.C. § 672(a)(1)-(3) (defining eligibility criteria). This argument fails.

      The State did not waive its objection to the district court’s inclusion of non-

federally eligible children within the terms of the injunction. The State’s Eleventh

Amendment challenge may be raised at any time. See Oregon v. Legal Services

Corp., 552 F.3d 965, 969 (9th Cir. 2009); see also Edelman v. Jordan, 415 U.S.

651, 678 (1974) (“[T]he Eleventh Amendment defense sufficiently partakes of the


                                           3
nature of a jurisdictional bar so that it need not be raised in the trial court[.]”).

“We review de novo whether Eleventh Amendment immunity applies.” Nat’l

Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 846 (9th Cir. 2002).

       The district court’s judgment and preliminary injunction order did not

exceed its jurisdiction, the scope of the pleadings, or our remand in Allenby, 589

F.3d at 1023. “In determining the scope of an injunction, a district court has broad

latitude, and it must balance the equities between the parties and give due regard to

the public interest.” California ex rel. Lockyer v. U.S. Dept. of Agriculture, 575

F.3d 999, 1020 (9th Cir. 2009), as amended (citation omitted). The district court

extended injunctive relief to all California foster children based on our

interpretation of the Child Welfare Act in Allenby, 589 F.3d at 1023. The district

court’s undisputed finding was that because the State does not distinguish between

federally-eligible and non-federally eligible children when making group home

program placements or setting payment rate levels, reimbursing foster care

providers at lower rates for non-federally eligible children inevitably dilutes funds

for federally-eligible children.

       There was no violation of the Eleventh Amendment because the district

court’s preliminary injunction order and judgment fall squarely within the doctrinal

exception of Ex Parte Young, 209 U.S. 123, 159-60 (1908). See, e.g., Cardenas


                                             4
v. Anzai, 311 F.3d 929, 934-35 (9th Cir. 2002). A district court may enjoin state

officials from future violations of a federal statute, “even if it might require

substantial outlay of funds from the state treasury, provided that it does not award

retroactive relief for past conduct.” Natural Resources Def. Council v. Cal. Dept.

of Transp., 96 F.3d 420, 422 (9th Cir. 1996) (citation omitted).

      The district court’s permanent injunction in Appeal No. 10-15593 is

AFFIRMED. The district court’s preliminary injunction order in Appeal No. 09-

17649 is AFFIRMED.




                                            5
