                                   United States Court of Appeals,

                                           Eleventh Circuit.

                                             No. 95-6861.

  Willie Mae HARRIS, individually and on behalf of all others similarly situated; Linda Patton,
individually and on behalf of all others similarly situated; Taenika Patton, individually and on
behalf of all others similarly situated; John Patton, individually and on behalf of all others similarly
situated; Tommy Gordon, individually and on behalf of all others similarly situated; Bertha J.,
individually and on behalf of all others similarly situated, Plaintiffs-Appellees,

                                                   v.

   Fob JAMES, Governor; David Toney, Commissioner of the Alabama Medicaid Agency,
Defendants-Appellants.

                                             Nov. 6, 1997.

Appeal from the United States District Court for the Middle District of Alabama. (No. CV-94-A-
1422-N), W. Harold Albritton, Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.

        ANDERSON, Circuit Judge:

        In the instant case, plaintiffs-appellees brought a class action under 42 U.S.C. § 1983,

alleging that Alabama's Medicaid plan was not in compliance with a federal regulation requiring

State Medicaid plans to ensure necessary transportation for recipients to and from providers. The

district court granted summary judgment to the plaintiffs and later approved a remedial plan agreed

to by the parties. On appeal, the State officials (hereinafter referred to as "the State") argue that the
regulation does not create a right enforceable in a § 1983 action. For the reasons below, we accept

the officials' argument and reverse the judgment of the district court.

                                  I. FACTS AND BACKGROUND

        Here, we set out only the facts relevant to the instant appeal. In particular, because the State

does not challenge the district court's conclusion that the plan was not in compliance with the

regulation, we do not detail the facts underlying the lower court's finding of noncompliance.1




   1
   Those facts are set out in the district court's published opinion. Harris v. James, 896 F.Supp.
1120 (M.D.Ala.1995).
       We begin by revisiting our previous description of the Medicaid program. In Silver v.

Baggiano, 804 F.2d 1211 (11th Cir.1986), we wrote:

       Medicaid is a cooperative venture of the state and federal governments. A state which
       chooses to participate in Medicaid submits a state plan for the funding of medical services
       for the needy which is approved by the federal government. The federal government then
       subsidizes a certain portion of the financial obligations which the state has agreed to bear.
       A state participating in Medicaid must comply with the applicable statute, Title XIX of the
       Social Security Act of 1965, as amended, 42 U.S.C. § 1396, et seq., and the applicable
       regulations.

Id. at 1215.

       On November 2, 1994, the plaintiffs filed suit under 42 U.S.C. § 1983, arguing that the

State's Medicaid plan failed to ensure non-emergency transportation as required by federal law.

Specifically, the plaintiffs relied on a regulation which provides:

       A State plan must—

(a) Specify that the Medicaid agency will ensure necessary transportation for recipients to and from
       providers; and

(b) Describe the methods that the agency will use to meet this requirement.

42 C.F.R. § 431.53. The defendants moved for dismissal or, alternatively, for a stay pending

"administrative and legislative review and action." In a memorandum order denying the motion, the

district court described the arguments raised by the defendants' brief:

       The most important of these [arguments] is Defendants' contention that no specific
       non-emergency transportation benefits are mandated by federal statute. They argue that the
       statute itself does not require transportation, so that the regulation referring to transportation
       goes beyond the congressional mandate. Therefore, Defendants contend, the regulation does
       not create a right which is enforceable under § 1983. They argue further that although the
       Medicaid regulations that implement the statute recognize the need for transportation, those
       regulations fail to spell out any specific parameters or requirements regarding transportation.
       Defendants contend that the issue has been left non-specific so that each state may best deal
       with this issue as it sees fit. Consequently, Defendants argue that Plaintiffs have not asserted
       a valid cause of action under 42 U.S.C. § 1983.

883 F.Supp. 1511, 1513 (M.D.Ala.1995). In a thorough opinion, the district court reviewed the

relevant case law and rejected the defendants' arguments. Id. at 1514-22. After the district court

granted summary judgment in favor of the plaintiffs, 896 F.Supp. 1120 (M.D.Ala.1995), the

defendants filed the instant appeal.


                                                   2
                                              II. ISSUE

       The narrow issue presented for decision today is whether Medicaid recipients have a federal

right to transportation which may be enforced in an action under § 1983.2

                                          III. DISCUSSION

       We begin by reviewing the Supreme Court's case law governing whether and under what

circumstances violations of federal statutes create a cause of action under 42 U.S.C. § 1983.3 Then,

we apply that case law to the case before us today.

A. The Supreme Court's Case Law

       In 1980, the Supreme Court rejected the argument that § 1983 creates a cause of action only

for constitutional violations and for the violation of civil rights and equal protection laws; the Court

held that the statute encompasses claims based on "purely statutory" violations of federal law.

Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). By 1987, the Supreme

Court had recognized two limitations to the broad proposition that § 1983 is available to enforce

violations of federal statutes by agents of the state. See Wright v. Roanoke Redevelopment & Hous.

Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987) (citing decisions subsequent

to Thiboutot ). First, plaintiffs cannot sue under § 1983 for violations of a federal statute where

"Congress has foreclosed such enforcement of the statute in the enactment itself." Id. Second,

   2
    Plaintiffs argue that the State in its initial brief preserved only the argument that the
regulation is not a valid interpretation of the statute. Having reviewed the briefs carefully, we
conclude that while it is true that the State chose to argue the point primarily by challenging the
validity of the regulation, the initial brief did adequately raise the broad question regarding
whether plaintiffs have a "federal right" to transportation enforceable under § 1983. We note
also that the "federal right" issue was presented to and ruled upon by the district court, and on
appeal, both parties were given an additional opportunity to address the issue in letter briefs
requested by the panel.
   3
    42 U.S.C. § 1983 provides in relevant part:

               Every person who, under color of any statute, ordinance, regulation, custom, or
               usage, of any State or Territory or the District of Columbia, subjects, or causes to
               be subjected, any citizen of the United States or other person within the
               jurisdiction thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party injured in any
               action at law, suit in equity, or other proper proceeding for redress.

                                                   3
because § 1983 speaks in terms of "rights, privileges, or immunities," not merely violations of

federal law, only "federal rights" are enforceable under § 1983. Id. Because our resolution of the

instant case turns on the second of the two limitations—i.e., the "federal rights" issue, we do not

detail the portions of the Supreme Court decisions dealing with the first limitation.4

       In Wright, the plaintiffs claimed that the defendant housing authority had overbilled them

for utilities and had thus violated a federal statute imposing a rent ceiling and the statute's

implementing regulations, which required public housing authorities to include a reasonable utility

allowance in tenants' rent. In answer to the defendant's claim that neither the statute nor the

regulations gave the tenants an enforceable right within the meaning of § 1983, the Court wrote

succinctly:

       We perceive little substance in this claim. The Brooke Amendment could not be clearer:
       as further amended in 1981, tenants could be charged as rent no more and no less than 30
       percent of their income. This was a mandatory limitation focusing on the individual family
       and its income. The intent to benefit tenants is undeniable. Nor is there any question that
       HUD interim regulations, in effect when this suit began, expressly required that a
       "reasonable" amount for utilities be included in rent that a PHA was allowed to charge, an
       interpretation to which HUD has adhered both before and after the adoption of the Brooke
       Amendment. HUD's view is entitled to deference as a valid interpretation of the statute, and
       Congress in the course of amending that provision has not disagreed with it.

                Respondent nevertheless asserts that the provision for a "reasonable" allowance for
       utilities is too vague and amorphous to confer on tenants an enforceable "right" within the
       meaning of § 1983 and that the whole matter of utility allowances must be left to the
       discretion of the PHA, subject to supervision by HUD. The regulations, however, defining
       the statutory concept of "rent" as including utilities, have the force of law ..., they
       specifically set out guidelines that the PHAs were to follow in establishing utility
       allowances, and they require notice to tenants and an opportunity to comment on proposed
       allowances. In our view, the benefits Congress intended to confer on tenants are sufficiently
       specific and definite to qualify as enforceable rights under Pennhurst [Pennhurst State
       School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ] and §
       1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to
       enforce.

Id. at 430-32, 107 S.Ct. at 773-75 (footnotes omitted).5

   4
    We note for the interested reader that Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 520-23,
110 S.Ct. 2510, 2523-25, 110 L.Ed.2d 455 (1990), rejected an argument that "Congress has
foreclosed enforcement of the Medicaid Act under § 1983."
   5
   In dissent, Justice O'Connor, joined by Chief Justice Rehnquist and Justices Powell and
Scalia, argued that there was no federal right enforceable under § 1983. The dissenters argued

                                                 4
       In Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107

L.Ed.2d 420 (1989), the Court considered whether the petitioner, a cab company involved in a labor

dispute, could sue under § 1983 to vindicate violations of the rule of law announced in Lodge 76,

International Ass'n of Machinists and Aerospace Workers v. Wisconsin Employment Relations

Com'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). In Machinists, the Court had

"reiterated that Congress intended to give parties to a collective-bargaining agreement the right to

make use of "economic weapons,' not explicitly set forth in the Act, free of government

interference." Golden State Transit, 493 U.S. at 110-11, 110 S.Ct. at 451. In Golden State Transit,

petitioners brought suit under § 1983 seeking monetary damages for city interference which the

Court, in an earlier case, had held violated federal law under Machinists. Having noted that there

was no "substantial question" that the holding in the previous case was "within the competence of

the judiciary to enforce," the Supreme Court concluded that the petitioner was "the intended

beneficiary of a statutory scheme that prevents governmental interference with the

collective-bargaining process and that the NLRA gives [petitioner] rights enforceable against

governmental interference in an action under § 1983." Id. at 109, 110 S.Ct. at 450. As for the

argument of the courts below that no § 1983 cause of action could lie because government

interference with the use of "economic weapons" did not constitute a "direct violation" of the statute,

the Court wrote:

       We have held, based on the language, structure, and history of the NLRA, that the Act
       protects certain rights of labor and management against governmental interference. While
       it is true that the rule of the Machinists case is not set forth in the specific text of an
       enumerated section of the NLRA, that might well also be said with respect to any number
       of rights or obligations that we have found implicit in a statute's language. A rule of law that
       is the product of judicial interpretation of a vague, ambiguous, or incomplete statutory


that neither the language of the Brooke Amendment, nor its legislative history, nor its
interpretation by HUD supported the conclusion that Congress intended to create an entitlement
to reasonable utilities and that, even assuming that regulations alone could create federal rights,
the regulations at issue simply were not capable of judicial enforcement because they neither
provided a basis for calculating an individual tenant's rent nor provided for a remedy in the event
of a violation. Id. at 432-41, 107 S.Ct. at 775-80. As we discuss below, the dissenters also
expressed strong reservations regarding the issue that they assumed arguendo—i.e., that
regulations alone could create federal rights. Id. at 437-38, 107 S.Ct. at 777-78.

                                                  5
       provision is no less binding than a rule that is based on the plain meaning of a statute. The
       violation of a federal right that has been found to be implicit in a statute's language and
       structure is as much a "direct violation" of a right as is the violation of a right that is clearly
       set forth in the text of the statute.

Id. at 111-12, 110 S.Ct. at 451. According to the Court, "the interest in being free of governmental

regulation of the "peaceful methods of putting economic pressure upon one another,' ... is a right

specifically conferred on employers and employees by the NLRA." Id. at 112, 110 S.Ct. at 452

(quoting Machinists, 427 U.S. at 154, 96 S.Ct. at 2560).6

       In Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990),

the Court summarized the test that previous decisions had developed for determining whether the

statute in question creates a "federal right" enforceable under § 1983. According to the Court:

       Such an inquiry turns on whether the provision in question was intend[ed] to benefit the
       putative plaintiff.... If so, the provision creates an enforceable right unless it reflects merely
       a congressional preference for a certain kind of conduct rather than a binding obligation on
       the governmental unit, ... or unless the interest the plaintiff asserts is too vague and
       amorphous such that it is beyond the competence of the judiciary to enforce.

Id. at 509, 110 S.Ct. at 2517 (citations and internal quotations omitted). The Court applied this test

("the three-prong test"7) to the following facts. Plaintiff health care providers brought a § 1983 suit

to enforce an amendment to the Medicaid Act requiring State plans to

       provide ... for payment ... of [services] ... through the use of rates (determined in accordance
       with methods and standards developed by the State ... ) which the State finds, and makes
       assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which
       must be incurred by efficiently and economically operated facilities....
Id. at 502-03, 110 S.Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A)). According to the plaintiffs,

the reimbursement formula used by the Commonwealth of Virginia did not generate rates that were

"reasonable and adequate" as defined by the statute. The defendants argued that plaintiffs did not

   6
    Justice Kennedy, joined by Chief Justice Rehnquist and Justice O'Connor, dissented, arguing
that Machinists pre-emption "rests upon that allocation of power rather than upon individual
rights, privileges, or immunities." Id. at 117-18, 110 S.Ct. at 455.
   7
    Although the Supreme Court has sometimes referred to these "prongs" in a different order,
see Blessing v. Freestone, --- U.S. ----, ----, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997), we
will refer to them in the order set out above: (1) is the provision intended to benefit the plaintiff;
(2) does the provision impose a binding obligation on the governmental unit; (3) is the interest
"too vague and amorphous" for judicial enforcement?

                                                   6
have an enforceable federal right to reasonable and adequate reimbursement. Applying its

three-prong test, the Court determined that the amendment did indeed create an enforceable right

to reasonable and adequate rates.

        As to the first prong, the Court concluded that the amendment was intended to benefit the

plaintiff class. In support of its conclusion, the Court relied on the fact that "[t]he provision

establishes a system for reimbursement of providers and is phrased in terms benefitting health care

providers...." Id. at 510, 110 S.Ct. at 2517-18.

        Turning to the question whether the amendment imposed a "binding obligation" on the

States, the Court looked first to the language of the statute and noted:

        The Boren Amendment is cast in mandatory rather than precatory terms: The state plan
        "must" ' "provide for payment ... of hospital[s]" according to rates the State finds are
        reasonable and adequate.... Moreover, provision of federal funds is expressly conditioned
        on compliance with the amendment and the Secretary is authorized to withhold funds for
        noncompliance with this provision.

Id. at 512, 110 S.Ct. at 2519 (emphasis in original). Then, the Court addressed the defendants'

argument that the only binding obligation was an essentially procedural one: the State must provide

some reimbursement, must itself find that its rates are reasonable, and must make assurances

satisfactory to the Secretary. The Court rejected this interpretation, refusing to make the federal

requirement a "dead letter": "It would make little sense for Congress to require a State to make

findings without requiring those findings to be correct. In addition, there would be no reason to
require a State to submit assurances to the Secretary if the statute did not require the State's findings

to be reviewable in some manner by the Secretary." Id. at 514, 110 S.Ct. at 2520. The Court found

further support for its conclusion that the Amendment created enforceable rights in the fact that the

Secretary was entitled to reject a plan upon concluding that the State's assurances of compliance

were unsatisfactory: "If the Secretary is entitled to reject a state plan upon concluding that a State's

assurances of compliance are unsatisfactory, ... a State is on notice that it cannot adopt any rates it

chooses and that the requirement that it make "findings' is not a mere formality." Id. Finally, the

Court reviewed the legislative history of the Amendment and determined that it showed that "the


                                                   7
requirements of "findings' and "assurances' prescribe the respective roles of a State and the Secretary

and do not, as petitioners suggest, eliminate a State's obligation to adopt reasonable rates." Id. at

519, 515-19, 110 S.Ct. at 2522, 2520-22.

       Finally, the Court looked to the question whether the obligation was "too vague and

ambiguous" to be judicially enforceable. The Court concluded that it was not, noting both that the

statute and accompanying regulations set out factors which a State was to consider in adopting its

rates and that the statute provided the objective benchmark of an "efficiently and economically

operated facility." Id. at 519, 110 S.Ct. at 2522-23. The Court wrote:

       While there may be a range of reasonable rates, there certainly are some rates outside that
       range that no State could ever find to be reasonable and adequate under the Act. Although
       some knowledge of the hospital industry might be required to evaluate a State's findings with
       respect to the reasonableness of its rates, such an inquiry is well within the competence of
       the Judiciary.

Id. at 519-20, 110 S.Ct. at 2523.8

       In 1992, the Court decided Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1

(1992). At issue in Suter was a provision of the Adoption Assistance and Child Welfare Act that


   8
    Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, and Kennedy, dissented. In
response to the majority's argument that the statute conferred substantive rights on health care
providers, the dissenters argued that

               In light of the placement of § 1396a(a)(13)(A) within the structure of the statute,
               ... one most reasonably would conclude that § 1396a(a)(13)(A) is addressed to the
               States and merely establishes one of many conditions for receiving federal
               Medicaid funds; the text does not confer any substantive rights on Medicaid
               services providers. This structural evidence is buttressed by the absence in the
               statute of any express "focus" on providers as a beneficiary class of the provision.

       Id. at 527, 110 S.Ct. at 2526-27. The dissenters went on to say that "[e]ven if one were to
       assume that the terms of [the statute] confer a substantive right on providers ... the statute
       places its own limitation on that right in very plain language":

               The first step requires the States to make certain findings. The second and only
               other step requires the States to make certain assurances to the Secretary and the
               Secretary—not the courts—to review those assurances. Under the logic of our
               case law, respondent arguably may bring a § 1983 action to require that rates be
               set according to that process.

       Id., at 527-28, 110 S.Ct. at 2527.

                                                  8
required participating States to submit a plan9 which "provides that, in each case, reasonable efforts

will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for

removal of the child from his home, and (B) to make it possible for the child to return to his home."

Id. at 351, 112 S.Ct. at 1364 (quoting 42 U.S.C. § 671(a)(15)). The Court began its discussion of

the § 1983 inquiry by reviewing its earlier decisions, noting that the opinions in those cases "took

pains to analyze the statutory provisions in detail, in light of the entire legislative enactment." Id.

at 357, 112 S.Ct. at 1367. The Court also revisited an earlier statement regarding the special

concerns present in § 1983 suits brought to enforce the requirements of Congressional acts passed

pursuant to the Spending Clause:

        The legitimacy of Congress' power to legislate under the spending power ... rests on whether
        the State voluntarily and knowingly accepts the terms of the "contract." There can, of
        course, be no knowing acceptance if a State is unaware of the conditions or is unable to
        ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on
        the grant of federal moneys, it must do so unambiguously.

Id. at 356, 112 S.Ct. at 1366 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17,

101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981)10).

        The question in the case before it, said the Court, was "Did Congress, in enacting the

Adoption Act, unambiguously confer upon the child beneficiaries of the Act a right to enforce the

requirement that the State make "reasonable efforts' to prevent a child from being removed from his

home, and once removed to reunify the child with his family?" Id. at 357, 112 S.Ct. at 1367.
Turning to an examination of "exactly what is required of States by the Act," the Court wrote:


   9
    Like the Medicaid Act, the Adoption Assistance and Child Welfare Act establishes a federal
reimbursement program for certain expenses incurred by the States. In order to participate in the
program and receive reimbursement, the States must submit a plan to the Secretary of Health and
Human Services for approval.
   10
     In Pennhurst, the Court considered the question whether the "Bill of Rights" provision of
the Developmentally Disabled Assistance and Bill of Rights Act of 1975 conferred upon the
mentally retarded substantive rights to "appropriate treatment" in the "least restrictive"
environment. Although the Court's decision specifically did not address the question regarding
the enforceability of the provision under § 1983, 451 U.S. at 28 n. 21, 101 S.Ct. at 1545 n. 21, its
statements regarding whether the Act created substantive rights are clearly relevant to the inquiry
before us today.

                                                  9
       Here, the terms of § 671(a) are clear: "In order for a State to be eligible for payments under
       this part, it shall have a plan approved by the Secretary." Therefore the Act does place a
       requirement on the States, but that requirement only goes so far as to ensure that the State
       have a plan approved by the Secretary which contains the 16 listed features.

Id. at 358, 112 S.Ct. at 1367. In a footnote following this language, the Court noted:

       Contrary to respondents' assertion that finding [the statute] to require only the filing of a plan
       for approval by the Secretary would add a new "prerequisite for the existence of a right
       under § 1983," ... our holding today imposes no new "prerequisites" but merely counsels that
       each statute must be interpreted by its own terms.

Id. at 358 n. 8, 112 S.Ct. at 1367 n. 8. The Court then distinguished the case before it from its

previous decision in Wilder. In Wilder, the Court wrote, the statute and regulations had set forth "in

some detail" the factors to be considered in determining the methods for calculating reimbursement

rates; in the case before the Court, however, no further statutory guidance was given as to how to

measure "reasonable efforts" to maintain an abused or neglected child in his or her home, or return

the child to his or her home from foster care. Id. at 359-60, 112 S.Ct. at 1368. To find no federal

right to "reasonable efforts" did not, according to the Court, render the provision a "dead letter"

because the Secretary retained authority to reduce or eliminate payments upon a finding of

noncompliance and because federal reimbursement for foster care payments made with respect to

an involuntary removal from the home had to be the result of a judicial determination that continuing

in the home would be contrary to the welfare of the child. Id. at 360-61, 112 S.Ct. at 1368-69.

Finally, the Court examined the regulations promulgated to enforce the Adoption Act:
       The regulations promulgated by the Secretary to enforce the Adoption Act do not evidence
       a view that § 671(a) places any requirement for state receipt of federal funds other than the
       requirement that the State submit a plan to be approved by the Secretary. The regulations
       provide that to meet the requirements of § 671(a)(15) the case plan for each child must
       "include a description of the services offered and the services provided to prevent removal
       of the child from the home and to reunify the family." 45 CFR § 1356.21(d)(4) (1991).
       Another regulation, entitled "requirements and submittal," provides that a state plan must
       specify "which preplacement preventive and reunification services are available to children
       and families in need." § 1357.15(e)(1). What is significant is that the regulations are not
       specific and do not provide notice to the States that failure to do anything other than submit
       a plan with the requisite features, to be approved by the Secretary, is a further condition on
       the receipt of funds from the Federal Government.




                                                  10
Id. at 361-62, 112 S.Ct. at 1369 (footnotes omitted).11
        In the wake of Suter, federal courts of appeals took somewhat divergent views of what

general propositions should be derived from the Court's decision and, in particular, from the Court's

distinguishing of the decision in Wilder. According to the First Circuit, the key element of Suter

was an instruction that "when a provision in a statute fails to impose a direct obligation on the States,

instead placing the onus of [ensuring] compliance with the statute's substantive provisions on the

federal government, no cause of action cognizable under section 1983 can flourish." Stowell v. Ives,

976 F.2d 65, 70 (1st Cir.1992). In the Second Circuit's view, "[T]he significant point in Suter was

not that the statute in question only required a state to submit a plan to the federal agency but that

the statute provided no guidance for measuring "reasonable efforts.' " Marshall v. Switzer, 10 F.3d

925, 929 (2d Cir.1993). The Eighth Circuit concluded that Suter added "additional considerations"

to the approach applied in Wilder. Arkansas Medical Soc., Inc. v. Reynolds, 6 F.3d 519, 525 (8th

Cir.1993) (noting the Suter Court's emphasis on the fact that rights must be "unambiguously"

conferred and that each statute must be examined on its own basis).12

   11
    Justice Blackmun, joined by Justice Stevens, dissented, arguing that the majority had
deviated from the principles established in the Court's precedents. In the dissenters' opinion, the
provision established an enforceable federal right under Wilder.
   12
     Various panels of the Seventh Circuit have addressed the appropriate scope of Suter as well
as the scope of previous panels' decisions regarding Suter. In Clifton v. Schafer, 969 F.2d 278
(7th Cir.1992), the panel said of Suter:
                The Court based its analysis, in large part, on the fact that § 671(a)(15) required
                only that a state have a plan providing that the state will make "reasonable
                efforts" to prevent removing a child from his home or to make it possible to return
                a removed child to his home.... Nothing in the Adoption Act placed any other
                specific requirement on the states or defined what "reasonable efforts" might
                entail.

        Id. 969 F.2d at 284. A subsequent panel seemed to interpret Clifton to have taken the
        position that Suter turns on a distinction between statutes explicitly requiring state
        compliance and statutes requiring that the state adopt a plan providing for such
        compliance. Procopio v. Johnson, 994 F.2d 325, 332 (7th Cir.1993). However, other
        panels have taken a more case-specific reading of Suter and Clifton. See Miller by Miller
        v. Whitburn, 10 F.3d 1315 (7th Cir.1993); City of Chicago v. Lindley, 66 F.3d 819 (7th
        Cir.1995).


                                                   11
       Our obligation to discern the law in this area does not end with interpreting Suter. In 1994,

Congress enacted the following amendment to the Social Security Act:

       § 1320a-2 Effect of failure to carry out State plan

       In an action brought to enforce a provision of this chapter, such provision is not to be
       deemed unenforceable because of its inclusion in a section of this chapter requiring a State
       plan or specifying the required contents of a State plan. This section is not intended to limit
       or expand the grounds for determining the availability of private actions to enforce State plan
       requirements other than by overturning any such grounds applied in Suter v. Artist M., 503
       U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), but not applied in prior Supreme Court
       decisions respecting such enforceability; provided, however, that this section is not intended
       to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable
       in a private right of action.

42 U.S.C. § 1320a-2. There has been some suggestion that this statute "overrules" Suter entirely and

that we should determine the "federal rights" question only according to the pre-Suter precedents.

See Jeanine B. by Blondis v. Thompson, 877 F.Supp. 1268, 1283 (E.D.Wis.1995) ("[T]he court must

"rewind the clock' and look to cases prior to Suter to determine the enforceability of other provisions

under the Adoption Assistance Act [beyond the specific one involved in Suter ]."). We reject this

argument on the basis of the plain language of the statute. Section 1320a-2 does not purport to reject

any and all grounds relied upon in Suter; it purports only to overrule certain grounds—i.e., that a

provision is unenforceable simply because of its inclusion in a section requiring a state plan or

specifying the contents of such a plan.

        As is suggested by the above survey of the case law in other circuits, it may well be that the

grounds Congress "overruled" were never relied upon by the Suter Court. In other words, it may

well be that the majority never intended to suggest that substantive provisions included in legislation

requiring a State plan or specifying the contents of that State plan are a fortiori unenforceable under



               Similarly, we note that while one Sixth Circuit panel embraced the First Circuit's
       reading of Suter, Audette v. Sullivan, 19 F.3d 254 (6th Cir.1994), another panel indicated
       that were it not bound by the previous decision, it would reject the First Circuit's
       approach and explain Suter as a decision turning on the vagueness of the "reasonable
       efforts" obligation. Wood v. Tompkins, 33 F.3d 600, 609 n. 18 (6th Cir.1994). See also
       Loschiavo v. City of Dearborn, 33 F.3d 548, 551 n. 2 (6th Cir.1994) (noting simply that
       the Sixth Circuit had joined other circuits in concluding that Suter and Wilder may be
       "harmonized"), cert. denied, 513 U.S. 1150, 115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995).

                                                  12
§ 1983.13 In particular, we note that any such rule is plainly inconsistent with Wilder, which the

Court did not overrule, but expressly distinguished. See LaShawn A. v. Barry, 69 F.3d 556, 569,

568-70 (D.C.Cir.1995) (concluding that § 1320a-2 is essentially meaningless because the Suter

Court "did not find provisions of the Adoption Assistance Act unenforceable "because of ...

inclusion in a section of [the Act] requiring a State plan or specifying the required contents of a State

plan' "), superseded by decision en banc, 87 F.3d 1389 (D.C.Cir.1996) (not addressing the Suter

issue), cert. denied, --- U.S. ----, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997). However, we need not

definitively resolve the question whether Suter announced or implicitly stood for the rule rejected

by Congress: in light of the statute, it is clear that the mere fact that an obligation is couched in a

requirement that the State file a plan is not itself sufficient grounds for finding the obligation

unenforceable under § 1983.

        Finally, we turn to Blessing v. Freestone, --- U.S. ----, 117 S.Ct. 1353, 137 L.Ed.2d 569

(1997), the most recent Supreme Court case in this area. In Blessing, parents of children entitled to

receive child support services from the State pursuant to Title IV-D of the Social Security Act sued

the director of the State child support agency under § 1983, claiming they had an enforceable right

to have the State program achieve "substantial compliance" with the requirements of Title IV-D.14

A unanimous Supreme Court reversed the Ninth Circuit's decision in favor of the plaintiffs. After

summarizing the three-factor test used to determine whether a particular statutory provision gives
rise to a federal right, the Court turned to the case before it. The Court began by rejecting the Ninth

Circuit's general approach:




   13
     The precise language of the statute, which refers to "any such grounds" applied in Suter,
suggests that Congress itself may have been unsure if the Court intended to announce the rule
referred to in the statute.
   14
     A State participating in the federal Aid to Families with Dependant Children program must
certify that it will operate a child support enforcement program that conforms with Title IV-D's
requirements and that it will do so pursuant to a plan approved by the Secretary of Health and
Human Services. Id. at ----, 117 S.Ct. at 1356.

                                                   13
        Without distinguishing among the numerous rights that might have been created by this
        federally funded welfare program, the Court of Appeals agreed in sweeping terms that "Title
        IV-D creates enforceable rights in families in need of Title IV-D services." ...

        [T]he lower court's holding that Title IV-D "creates enforceable rights" paints with too broad
        a brush. It was incumbent upon respondents to identify with particularity the rights they
        claimed, since it is impossible to determine whether Title IV-D, as an undifferentiated
        whole, gives rise to undefined "rights."

Id. at ----, 117 S.Ct. at 1360. As for the particular statutory provision requiring States to operate

their child support programs in substantial compliance with Title IV-D,15 the Court concluded that

this provision "was not intended to benefit individual children and custodial parents, and therefore

it does not constitute a federal right." Id. at ----, 117 S.Ct. at 1361. The Court explained:

        Far from creating an individual entitlement to services, the standard is simply a yardstick for
        the Secretary to measure the systemwide performance of a State's Title IV-D program. Thus,
        the Secretary must look to the aggregate services provided by the State, not to whether the
        needs of any particular person have been satisfied. A State substantially complies with Title
        IV-D when it provides most mandated services ... in only 75 percent of the cases reviewed
        during the federal audit period.... States must aim to establish paternity in 90 percent of all
        eligible cases, but may satisfy considerably lower targets so long as their efforts are steadily
        improving.... It is clear, then, that even when a State is in "substantial compliance" with
        Title IV-D, any individual plaintiff might still be among the 10 or 25 percent of persons
        whose needs ultimately go unmet. Moreover, even upon a finding of substantial
        noncompliance, the Secretary can merely reduce the State's AFDC grant by up to five
        percent; she cannot, by force of her own authority, command the State to take any particular
        action or to provide any services to certain individuals. In short, the substantial compliance
        standard is designed simply to trigger penalty provisions that increase the frequency of
        audits and reduce the State's AFDC grant by a maximum of five percent. As such, it does
        not give rise to individual rights.

Id. (emphasis in original). As for the Ninth Circuit's "blanket approach" in determining that Title

IV-D creates enforceable rights, the Court concluded that "[i]t is readily apparent that many other

provisions [besides the "substantial compliance' provision] ... do not fit our traditional three criteria

for identifying statutory rights." Id. The Court wrote:

        To begin with, many provisions, like the "substantial compliance" standard, are designed
        only to guide the State in structuring its systemwide efforts at enforcing support obligations.
        These provisions may ultimately benefit individuals who are eligible for Title IV-D services,
        but only indirectly. For example, Title IV-D lays out detailed requirements for the State's
        data processing system.... Obviously, these complex standards do not give rise to

   15
    See 42 U.S.C. § 609(a)(8) (authorizing the Secretary of Health and Human Services to
reduce a State's AFDC grant by up to five percent if the State does not "substantially comply"
with the requirements of Title IV-D).

                                                   14
        individualized rights to computer services. They are simply intended to improve the overall
        efficiency of the States' child support enforcement scheme.

                The same reasoning applies to the staffing levels of the state agency, which
        respondents seem to claim are inadequate.... Title IV-D generally requires each participating
        State to establish a separate child support enforcement unit "which meets such staffing and
        organizational requirements as the Secretary may by regulation prescribe." ... The
        regulations, in turn, simply provide that each level of the State's organization must have
        "sufficient staff" to fulfill specified functions. These mandates do not, however, give rise
        to federal rights. For one thing, the link between increased staffing and the services
        provided to any particular individual is far too tenuous to support the notion that Congress
        meant to give each and every Arizonan who is eligible for Title IV-D the right to have the
        State Department of Economic Security staffed at a "sufficient" level. Furthermore, neither
        the statute nor the regulation gives any guidance as to how large a staff would be
        "sufficient." ... Enforcement of such an undefined standard would certainly "strain judicial
        competence."

Id. at ----, 117 S.Ct. at 1361-62. Leaving open the possibility that some provisions of Title IV-D

give rise to enforceable individual rights, the Court sent the case back to the district court to

determine "exactly what rights, considered in their most concrete, specific form" respondents were

asserting as well as whether any of the specific claims asserted an individual federal right. Id. at ----,

117 S.Ct. at 1362.

        Although we are reluctant to state many general propositions of law in this area, we think

it safe to summarize a few principles derived from the above discussion. First, the holdings of

Wright, Wilder, and Suter all remain good law. Second, the three-prong "enforceable rights" test

developed in Wright and Wilder remains good law. Finally, the Supreme Court's admonitions in

Suter which fall short of proposing that State-plan statutes are a fortiori unenforceable under § 1983
remain good law. With these principles in mind, we proceed to determine whether plaintiffs have

an enforceable right to transportation under the Medicaid statute and the accompanying regulations.

B. Do Medicaid Recipients Have a "Federal Right" to Transportation?

        In the instant case, the plaintiffs seek to enforce a transportation requirement that appears

explicitly not in the Medicaid Act, but in a federal regulation. The plaintiffs argue that the

transportation regulation is a valid interpretation of at least one of several statutory provisions found

at 42 U.S.C. § 1396a(a). Those provisions are as follows:

(a) A State plan for medical assistance must—

                                                   15
(1) provide that it shall be in effect in all political subdivisions of the State, and, if administered by
        them, be mandatory upon them;

                                              .   .   .    .   .

(4) provide (A) such methods of administration ... as are found by the Secretary to be necessary for
        the proper and efficient operation of the plan ...;

                                              .   .   .    .   .

(8) provide that all individuals wishing to make application for medical assistance under the plan
       shall have opportunity to do so, and that such assistance shall be furnished with reasonable
       promptness to all eligible individuals;

                                              .   .   .    .   .

(10) (B) that the medical assistance made available to any individual described in subparagraph (A)
       [describing the so-called "categorically needy"]

                        (i) shall not be less in amount, duration, or scope than the medical assistance
                        made available to any other such individual, and

                        (ii) shall not be less in amount, duration, or scope than the medical assistance
                        made available to individuals not described in subparagraph (A) ...;

                                              .   .   .    .   .

(19) provide such safeguards as may be necessary to assure that eligibility for care and services
       under the plan will be determined, and such care and services will be provided, in a manner
       consistent with simplicity of administration and the best interests of the recipients;

                                              .   .   .    .   .

(23) provide that (A) any individual eligible for medical assistance ... may obtain such assistance
       from any institution, agency, community pharmacy, or person, qualified to perform the
       service or services required ... who undertakes to provide him such services....

According to the plaintiffs, the regulatory and statutory provisions create a federal right to

transportation to and from providers.16

   16
    We note that a district court in Pennsylvania has held that the transportation regulation is
enforceable through an action under § 1983. Morgan v. Cohen, 665 F.Supp. 1164, 1175
(E.D.Pa.1987) (relying on Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S.
418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)).

               We also note that in Smith v. Vowell, 379 F.Supp. 139 (W.D.Tex.1974), aff'd, 504
        F.2d 759 (5th Cir.1974) (table), the court, in an action brought by Medicaid recipients
        under § 1983, held Texas's Medicaid plan to be "out of conformity" with the
        transportation regulation and ordered the State to submit a conforming plan. However,
        Smith v. Vowell nowhere addressed the question before us—i.e., is there a "federal right"

                                                      16
        We turn initially to questions regarding the appropriate analytical approach for cases such

as the instant one which involve federal regulations. As a previous panel of this court has pointed

out, "There is no precedent in our circuit and those that exist are split and far from clear." Colvin

v. Housing Auth. of Sarasota, Fla., 71 F.3d 864, 865 n. 1 (11th Cir.1996) (concluding that the issue

had been waived in the case before it). The plaintiffs point out that the Sixth Circuit has asserted

that because federal regulations have the force of law, they may create enforceable rights under §

1983. Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994), cert. denied, 513 U.S. 1150,

115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995). Accordingly, the Loschiavo panel simply applied the

three prongs of the "federal right" test directly to the regulation at issue—i.e., the panel asked

whether the regulation was intended to benefit the plaintiff, whether the regulation imposed a

mandatory obligation, and whether the regulation was capable of judicial enforcement. Id. at 552-

53. See also Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996) (describing Loschiavo as holding

"that "plaintiffs may use Section 1983 to enforce not only constitutional rights, but also those rights

defined by federal statutes [and federal regulations]' ") (brackets in original).17 Similarly, we note

that three Justices of the Supreme Court have expressed the view that a valid regulation can create


        to transportation enforceable under § 1983? Therefore, the decision has little persuasive
        effect.
   17
     The Third Circuit has written in dicta that "[w]ith respect to the existence of the private
rights requirement, valid federal regulations as well as federal statutes may create rights
enforceable under section 1983." West Virginia Univ. Hospitals, Inc. v. Casey, 885 F.2d 11, 18
(3d Cir.1989) (citing Wright ), cert. denied, 496 U.S. 936, 110 S.Ct. 3213, 110 L.Ed.2d 661
(1990). We think it reads far too much into this statement to say that the Third Circuit is in
agreement with the Sixth Circuit. See also DeVargas v. Mason & Hanger-Silas Mason Co., Inc.,
844 F.2d 714, 724 (10th Cir.1988) ("In at least some instances, violations of rights provided
under federal regulations provide a basis for § 1983 suits.") (dicta).

                Similarly, we note that in Clifton v. Schafer, 969 F.2d 278 (7th Cir.1992), the
        Seventh Circuit, faced with a case in which the plaintiff sued to enforce an obligation
        expressly imposed only by federal regulation, followed an analytical approach somewhat
        similar to that taken by the Sixth Circuit. In other words, the panel seemed to look
        "directly" to the regulation to determine whether the "federal rights" test was met.
        However, the panel concluded that the regulation, if it created any right, created only a
        right to insist that the State have a plan making the provision the regulation required
        (which the plaintiff did not dispute). Id. 969 F.2d at 283-84. Therefore, we do not read
        the decision as a holding agreeing with the Sixth Circuit approach.

                                                  17
a federal right enforceable under § 1983. In Guardians Ass'n v. Civil Serv. Comm'n of New York,

463 U.S. 582, 638, 103 S.Ct. 3221, 3251, 77 L.Ed.2d 866 (1983), Justice Stevens, joined by Justices

Brennan and Blackmun, wrote: "[I]t is clear that the § 1983 remedy is intended to redress the

deprivation of rights secured by all valid federal laws, including statutes and regulations having the

force of law." According to these Justices, the rationale of Maine v. Thiboutot, whose holding

applied expressly only to federal statutes, applies equally to administrative regulations having the

force of law. Id. at 638 n. 6, 103 S.Ct. at 3251 n. 6.

       On the other hand, we note that four Justices have suggested that "federal rights" enforceable

under § 1983 cannot derive either from valid regulations alone or from any and all valid

administrative interpretations of statutes creating federal rights.         In Wright v. Roanoke

Redevelopment and Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), Justice

O'Connor, joined by Chief Justice Rehnquist, Justice Powell, and Justice Scalia, wrote in dissent:

       In the absence of any indication in the language, legislative history, or administrative
       interpretation of the Brooke Amendment that Congress intended to create an enforceable
       right to utilities, it is necessary to ask whether administrative regulations alone could create
       such a right. This is a troubling issue not briefed by the parties, and I do not attempt to
       resolve it here. The Court's questionable reasoning that, because for four years HUD gave
       somewhat less discretion to the PHA's in setting reasonable utilities allowances, HUD
       understood Congress to have required enforceable utility standards, apparently allows it to
       sidestep the question. I am concerned, however, that lurking behind the Court's analysis may
       be the view that, once it has been found that a statute creates some enforceable right, any
       regulation adopted within the purview of the statute creates rights enforceable in federal
       courts, regardless of whether Congress or the promulgating agency ever contemplated such
       a result. Thus, HUD's frequently changing views on how best to administer the provision
       of utilities to public housing tenants becomes the focal point for the creation and
       extinguishment of federal "rights." Such a result, where determination of § 1983 "rights" has
       been unleashed from any connection to congressional intent, is troubling indeed.

Id. at 437-38, 107 S.Ct. at 777-78. The Fourth Circuit, citing the position of the dissent in Wright,

has written that "[a]n administrative regulation ... cannot create an enforceable § 1983 interest not

already implicit in the enforcing statute." Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987). See also




                                                 18
Former Special Project Employees Ass'n v. City of Norfolk, 909 F.2d 89 (4th Cir.1990) (following

Smith v. Kirk ).18

        Given the fact that the view set out above represented the position of the dissenting Justices

in Wright, we think our first obligation is to ascertain whether the majority opinion in Wright, which

remains binding upon us, rejected the dissent's position regarding cases involving federal

regulations. Ultimately, we are persuaded that the majority did not reject that position and thus that

the majority's opinion does not foreclose arguments that turn on the concerns expressed by the

dissent. Because careful attention to the language of the majority's opinion is required, we set out

the relevant discussion again:

        The Brooke Amendment could not be clearer: as further amended in 1981, tenants could be
        charged as rent no more and no less than 30 percent of their income. This was a mandatory
        limitation focusing on the individual family and its income. The intent to benefit tenants is
        undeniable. Nor is there any question that HUD interim regulations, in effect when this suit
        began, expressly required that a "reasonable" amount for utilities be included in rent that a
        PHA was allowed to charge, an interpretation to which HUD has adhered both before and
        after the adoption of the Brooke Amendment. HUD's view is entitled to deference as a valid
        interpretation of the statute, and Congress in the course of amending that provision has not
        disagreed with it.

                 Respondent nevertheless asserts that the provision for a "reasonable" allowance for
        utilities is too vague and amorphous to confer on tenants an enforceable "right" within the
        meaning of § 1983 and that the whole matter of utility allowances must be left to the
        discretion of the PHA, subject to supervision by HUD. The regulations, however, defining
        the statutory concept of "rent" as including utilities, have the force of law ..., they
        specifically set out guidelines that the PHAs were to follow in establishing utility
        allowances, and they require notice to tenants and an opportunity to comment on proposed
        allowances. In our view, the benefits Congress intended to confer on tenants are sufficiently
        specific and definite to qualify as enforceable rights under Pennhurst [Pennhurst State
        School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ] and §
        1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to
        enforce.

   18
     For other cases in the courts of appeals dealing with causes of action relying at least in part
on a regulation, see Farley v. Philadelphia Hous. Auth., 102 F.3d 697 (3d Cir.1996); Buckley v.
City of Redding, Cal., 66 F.3d 188 (9th Cir.1995); Albiston v. Maine Comm'r of Human
Services, 7 F.3d 258 (1st Cir.1993); Howe v. Ellenbecker, 8 F.3d 1258 (8th Cir.1993), cert.
denied, 511 U.S. 1005, 114 S.Ct. 1373, 128 L.Ed.2d 49 (1994); and Samuels v. District of
Columbia, 770 F.2d 184 (D.C.Cir.1985). While none of these opinions articulates a general
approach for dealing with such cases, we suspect that underlying at least some of these decisions
are principles similar to those we articulate below. See Farley, 102 F.3d at 699 ("[The] cause of
action arises strictly under [the statutory provision]. Regulation § 966.57(b) merely interprets
that section.").

                                                 19
Wright, 479 U.S. at 430-32, 107 S.Ct. at 773-75. We do not think the passage is fairly read to hold

that federal rights are created either by regulations of their own force or by any valid administrative

interpretation of a statute that creates some enforceable right. We begin by noting that the majority

nowhere takes issue with the dissent's suggestion that the majority did not hold so much. As for

what the majority did say, we note the persistent focus on tying the right to a reasonable utility

allowance to Congressional intent to create federal rights. We find significant in this regard the fact

that the majority first focused directly on the statutory provision creating the rent ceiling, describing

the provision as "a mandatory limitation focusing on the individual family and its income." In other

words, the Court seemed to locate the right in the statutory provision, turning to the regulation only

to answer the respondent's argument that HUD's definition of the statutory concept of "rent" was not

authorized by the statute. See id. at 430 n. 11, 107 S.Ct. at 774 n. 11 ("We thus reject respondent's

argument that the Brooke Amendment's rent ceiling applies only to the charge for shelter and that

the HUD definition of rent as including a reasonable charge for utilities is not authorized by the

statute."). Although the Court in that discussion spoke of the deference owed to valid administrative

interpretations of statutes, it did so in the particular context of a regulation that merely defined the

content of a specific right that, in the majority's opinion, Congress had conferred upon the plaintiffs

by statute. See id. at 431, 107 S.Ct. at 774 (referring to the regulations as "defining the statutory

concept of "rent' "). In conclusion, the Court reiterated that it believed that "the benefits Congress

intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights

under Pennhurst and § 1983, rights that are not, as respondent suggests, beyond the competence of

the judiciary to enforce." Id. at 432, 107 S.Ct. at 774-75 (emphasis added).19 We conclude that the

   19
     We note that footnote 3 of the majority's opinion reads in part: "The dissent may have a
different view, but to us it is clear that the regulations gave low-income tenants an enforceable
right to a reasonable utility allowance and that the regulations were fully authorized by the
statute." Id. at 420 n. 3, 107 S.Ct. at 769 n. 3. We think it is possible that the majority here was
referring not to the dissent's position on whether the regulation qua regulation could give rise to
a "right," but instead to the dissent's position that, even assuming a regulation could create a
federal right, the particular regulation at issue was incapable of judicial enforcement. Id. at 438,
107 S.Ct. at 778. In any event, we see no inconsistency between footnote 3 and our
interpretation of the majority's full discussion of the "federal rights" question, and we decline to

                                                   20
Wright majority did not hold that federal rights are created either by regulations "alone" or by any

valid administrative interpretation of a statute creating some enforceable right.

        In our view, the driving force behind the Supreme Court's case law in this area is a

requirement that courts find a Congressional intent to create a particular federal right. We find a

clear expression of this in Suter, where the Court posed as the dispositive question: "Did Congress,

in enacting the Adoption Act, unambiguously confer upon the child beneficiaries of the Act a right

to enforce the requirement that the State make "reasonable efforts' to prevent a child from being

removed from his home, and once removed to reunify the child with his family?" 503 U.S. at 357,

112 S.Ct. at 1367. In light of this focus, we reject the Sixth Circuit's approach—i.e., finding a

"federal right" in any regulation that in its own right meets the three-prong "federal rights" test. For

the same reason, we also reject the approach labeled "troubling" by the dissent in Wright—i.e.,

finding enforceable rights in any valid administrative interpretation of a statute that creates some

enforceable right.

        We need not in this case define the precise role which a valid regulation may play in the

"federal rights" analysis.20 Wright would seem to indicate that so long as the statute itself confers


read into this isolated statement any broader rule than we derive from that discussion.
   20
     In addition to the role for regulations as suggested in Wright, see text infra, the Supreme
Court has sometimes looked to the Secretary's understanding of Congressional intent as an
interpretive aid in its own judicial effort to ascertain legislative intent. For example, the
Pennhurst Court, in rejecting an argument that the "Bill of Rights" provision of the
Developmentally Disabled Assistance and Bill of Rights Act of 1975 imposed a condition on the
receipt of federal funds and created substantive rights in favor of the plaintiffs, relied in part on
the Secretary's similar understanding of Congressional intent:

                Equally telling is the fact that the Secretary has specifically rejected the position
                of the Solicitor General. The purpose of the Act, according to the Secretary, is
                merely "to improve and coordinate the provision of services to persons with
                developmental disabilities." 45 CFR § 1385.1 (1979). The Secretary
                acknowledges that "[n]o authority was included in [the 1975] Act to allow the
                Department to withhold funds from States on the basis of failure to meet the
                findings [of § 6010]." 45 Fed.Reg. 31006 (1980). If funds cannot be terminated
                for a State's failure to comply with § 6010, § 6010 can hardly be considered a
                "condition" of the grant of federal funds.

        Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 23, 101 S.Ct. 1531, 1543, 67

                                                  21
a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the

content of that right, then the statute—"in conjunction with the regulation"—may create a federal

right as further defined by the regulation.21 In Wright, the statute itself conferred a specific right on


        L.Ed.2d 694 (1981). Similarly, the Wilder Court, in holding that there was a binding
        obligation to actually adopt reasonable and adequate rates, noted inter alia:

                The Secretary has expressed his intention to withhold funds if the state plan does
                not comply with the statute or if there is "noncompliance in practice." See 42
                CFR § 430.35 (1989) ("A question of noncompliance in practice may arise from
                the State's failure to actually comply with a Federal requirement, regardless of
                whether the plan itself complies with that requirement").

        Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 512, 110 S.Ct. 2510, 2519, 110 L.Ed.2d
        455 (1990). Finally, in determining that the relevant statutory provision imposed upon
        States not a specific binding obligation, but instead a "rather generalized duty," id. at 363,
        112 S.Ct at 1370, the Suter Court wrote:

                The regulations promulgated by the Secretary to enforce the Adoption Act do not
                evidence a view that § 671(a) places any requirement for state receipt of federal
                funds other than the requirement that the State submit a plan to be approved by
                the Secretary.

        Suter v. Artist M., 503 U.S. 347, 361, 112 S.Ct. 1360, 1369, 118 L.Ed.2d 1 (1992).

                In the passages quoted above, the Supreme Court relied in part on administrative
        understandings of Congressional intent with regard to the scope of the obligation
        imposed by a federal statute. In the instant situation, it appears that the Secretary has
        consistently taken the position that States are obligated to ensure necessary transportation
        to and from providers. See Brief of Amicus Curiae Secretary of Health and Human
        Services. However, the issue before us is a different one—whether or not Congress
        intended to confer upon private plaintiffs a federal right enforceable under § 1983. The
        transportation regulation does not evidence any administrative understanding of
        Congressional intent as to this point; similarly, we note that the Secretary has expressly
        declined in this litigation to take any position on this question. To find a federal right to
        transportation, we would have to accord the transportation regulation an entirely different
        weight than is evidenced by the Supreme Court's reliance on regulations as an
        interpretive aid in ascertaining Congressional intent. As we describe in detail in the text
        which follows, in order to find for the plaintiffs, we would have to either rely on the
        regulation to create a federal right of its own force or derive a federal right from an
        administrative interpretation that goes beyond defining the content of rights conferred by
        statute and instead imposes a distinct obligation in order to further the broad objectives
        underlying the statutory provisions.
   21
     We note that we are uncertain exactly how our understanding of Wright squares with the
Fourth Circuit's case law. To the extent that we conclude federal rights must ultimately emanate
from either explicit or implicit statutory requirements, we would seem to be in agreement with
the Fourth Circuit. However, we are uncertain whether the Fourth Circuit would agree with our
conclusion that regulations may further define rights imposed by federal statutes.

                                                   22
the plaintiffs: tenants could be charged as rent no more and no less than 30% of their income. The

regulation concerning the utility allowance merely defined the statutory concept of "rent." Thus,

Wright has been described as holding that "[a] statute providing that tenants in low-income housing

could only be charged 30% of their income in rent, in conjunction with regulations providing that

"reasonable utilities' costs were included in the rental figure, created [a] right under § 1983 to not

be charged more than a "reasonable' amount for utilities." Suter, 503 U.S. at 361 n. 13, 112 S.Ct.

at 1369 n. 13.

        On the other hand, if the regulation defines the content of a statutory provision that creates

no federal right under the three-prong test, or if the regulation goes beyond explicating the specific

content of the statutory provision and imposes distinct obligations in order to further the broad

objectives underlying the statutory provision, we think the regulation is too far removed from

Congressional intent to constitute a "federal right" enforceable under § 1983.22 To hold otherwise

would be inconsistent with the driving force of the Supreme Court precedent requiring a

Congressional intent to create federal rights and with the Supreme Court's directive that courts must

find that Congress has unambiguously conferred federal rights on the plaintiff. See Suter, 503 U.S.

at 357, 112 S.Ct. at 1367; see also Pennhurst, 451 U.S. at 18, 24-25, 101 S.Ct. at 1540, 1543-44.

        Applying these principles to the case at hand, we conclude that the transportation regulation

does not define the content of any specific right conferred upon the plaintiffs by Congress. In our
view, the nexus between the regulation and Congressional intent to create federal rights is simply

too tenuous to create an enforceable right to transportation.23

   22
      This, of course, assumes that the administrative interpretation is not implicit in the statute.
It is clear under Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 112, 110 S.Ct.
444, 451, 107 L.Ed.2d 420 (1989), that "[a] rule of law that is the product of judicial
interpretation of a vague, ambiguous, or incomplete statutory provision" may be enforced under
§ 1983.
   23
     In our subsequent discussion, we assume, expressly without deciding, that the regulation is a
valid interpretation of each of the provisions cited. We emphasize that we assume this only for
purposes of argument; in each case, determining the validity of the regulation would require
application of the analysis set out in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

                                                 23
        We turn first to the "methods of administration" provision primarily relied upon by the

plaintiffs and by the court below. We conclude that the plaintiffs do not have an enforceable right

to "methods of administration." Just last term, in Blessing v. Freestone, --- U.S. ----, 117 S.Ct. 1353,

137 L.Ed.2d 569 (1997), the Court distinguished between provisions of Title IV-D intended to

benefit individual recipients and provisions intended "only to guide the State in structuring its

systemwide efforts at enforcing support obligations." Id. at ----, 117 S.Ct. at 1361. We conclude

that the "methods of administration" statute is intended only to guide the State in structuring its

efforts to provide care and services to Medicaid recipients and, therefore, that it does not create a

federal right enforceable by the plaintiffs. Because we conclude that Congress did not intend to

confer upon the plaintiffs a federal right to "methods of administration," it follows that a regulation

defining the precise content of that statutory requirement cannot create a federal right.

        We reach a similar conclusion regarding § 1396a(a)(19), which requires that State plans

provide "such safeguards as may be necessary to assure that ... care and services will be provided

... in a manner consistent with simplicity of administration and the best interests of the recipients."

We conclude that this section imposes only a generalized duty on the States—in other words, the

provision is insufficiently specific to confer any particular right upon the plaintiffs. See Suter, 503

U.S. at 363, 112 S.Ct. at 1370 ("[T]he "reasonable efforts' language does not unambiguously confer

an enforceable right upon the Act's beneficiaries. The term "reasonable efforts' in this context is at
least as plausibly read to impose only a rather generalized duty on the States."). Other courts have

reached similar conclusions with respect to § 1396a(a)(19). See Bumpus v. Clark, 681 F.2d 679, 683

(9th Cir.1982) ("Section 1396a(a)(19) is not the sort of specific condition for receipt of federal funds

which can be said to create substantive rights in Medicaid recipients."), opinion withdrawn as moot,

702 F.2d 826 (9th Cir.1983); Stewart v. Bernstein, 769 F.2d 1088, 1093 (5th Cir.1985) (citing

Bumpus with approval); Cook v. Hairston, No. 90-3437, 948 F.2d 1288 (6th Cir. Nov.26, 1991)

(unpublished disposition) ("[T]he district court did not err in finding that the [provisions] in question




                                                   24
were not sufficiently specific and definite to permit enforcement through § 1983.").24 Again, we do

not believe that in the absence of a federal right created by Congress, an implementing regulation

can create a right enforceable under § 1983.

        Next, we turn to the provision of § 1396a which requires that a State plan "provide that it

shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory

upon them." § 1396a(a)(1). The gist of the plaintiffs' argument with regard to this provision seems

to be that providing transportation to and from providers is necessary to ensure that the plan is truly

"in effect" in all areas of the State. However, the Supreme Court has rejected a similar argument

in the Title IV-D context. In Suter, the plaintiffs relied on the analogous provision in Title IV-D25

to argue that the State had a substantive obligation enforceable in a § 1983 action to make the

   24
     In addition to our concern that the provision is insufficiently specific to confer enforceable
rights on the plaintiff, we also suspect that such an obligation is "too vague and amorphous" to
be capable of judicial enforcement. To ask a court to determine whether a State practice
complies with the broad, and sometimes competing, goals of "simplicity of administration" and
"the best interests of the recipients" would likely strain judicial competence.

                We recognize that the Supreme Court has sometimes looked to regulations in
        determining whether the interest asserted by the plaintiff is "too vague and amorphous" to
        be judicially enforceable. For example, the Wright Court, in rejecting a "too vague and
        ambiguous" argument, wrote: "The regulations ... defining the statutory concept of "rent'
        as including utilities have the force of law, ... they specifically set out guidelines that the
        PHAs were to follow in establishing utility allowances, and they require notice to tenants
        and an opportunity to comment on proposed allowances." 479 U.S. at 431, 107 S.Ct. at
        774. Similarly, the Wilder Court, in rejecting an argument that the "reasonable and
        adequate reimbursement" obligation was "too vague and amorphous," relied in part on
        the implementing regulations: "As in Wright, the statute and regulations set out factors
        which a State must consider in adopting its rates...." 496 U.S. at 519, 110 S.Ct. at 2522.
        We find significant the fact that in each case the statute itself set out a particular right,
        and the regulation only further defined the content of that right. In our view, the Court's
        approach in these cases is closely related to our holding above. We have held that where
        a statute confers a specific right upon the plaintiff, and a valid regulation further defines
        or fleshes out the precise content of that right, then the statute "in conjunction with" the
        regulation may create a federal right as further defined by the regulation. Similarly, the
        quoted portions of Wright and Wilder suggest that courts can look to regulations to flesh
        out the precise content of specific rights conferred by statute and, thus, bring those rights
        within the realm of judicial enforceability. As we have stated above, we simply cannot
        conclude that § 1396a(a)(19) confers any specific right upon the plaintiffs.
   25
     42 U.S.C. § 671(a)(3) reads: "In order for a State to be eligible for payments under this part,
it shall have a plan approved by the Secretary which ... provides that the plan shall be in effect in
all political subdivisions of the State, and, if administered by them, be mandatory upon them."

                                                   25
"reasonable efforts" required elsewhere in the statute; if such efforts were not made, the argument

apparently went, the plan would not be "in effect." The Court rejected this argument: "[W]e think

that "in effect' is directed to the requirement that the plan apply to all political subdivisions of the

State, and is not intended to otherwise modify the word "plan.' " Suter, 503 U.S. at 359, 112 S.Ct.

at 1368. The Court's conclusion that the "shall be in effect" provision of the Adoption Assistance

Act requires only that the plan apply to all political subdivisions would seem to foreclose arguments

(such as the plaintiffs') that attempt to use "shall be in effect" provisions in other State-plan

legislation as a bootstrap for enforcing requirements imposed on such plans by other statutory

provisions.

           Finally, we find no right under the regulation read in conjunction with any of the remaining

statutory sections cited by the plaintiffs: § 1396a(a)(8), which requires that State plans provide that

"individuals wishing to make application for medical assistance under the plan shall have

opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all

eligible individuals"; § 1396a(a)(10)(B), which requires that State plans provide that medical

assistance provided to any "categorically needy" recipient shall not be less "in amount, duration, or

scope" than the assistance made available to other categorically needy recipients or to "medically

needy" recipients;26 or § 1396a(a)(23), which requires that the State plan provide that individuals

eligible for medical assistance may obtain such assistance from qualified providers who undertake
to provide the service or services required. It may be that each of these statutes creates some federal

right;27 similarly, it may be that the transportation regulation is a valid interpretation of each of these
provisions under Chevron. However, we do not think these two factors, even if we found both to


   26
     The precise distinction between categorically needy recipients and medically needy
recipients is a technical one not relevant to the case before us today. For present purposes, it is
only necessary to understand that § 1396a(a)(10)(B) is designed to ensure that "categorically
needy" recipients—who are, generally speaking, the most needy recipients—receive assistance
comparable to the assistance received by other categorically needy recipients and by "medically
needy" recipients.
   27
        We assume for the sake of argument only that these provisions create some federal right.

                                                    26
be true, would add up to a federal right to transportation. In each case the transportation regulation

would be valid not because it reasonably defines the content of rights created by the statutory

provisions, as did the regulation in Wright, but only because the regulation furthers the broad

objectives underlying each statutory provision. In other words, we do not think that transportation

to and from providers is reasonably understood to be part of the content of a right to prompt

provision of assistance, comparable assistance, or choice among providers. Instead, if the regulation

is a valid interpretation of these provisions, it would be because transportation may be a reasonable

means of ensuring the prompt provision of assistance, comparable assistance, or choice among

providers. Such links to Congressional intent may be sufficient to support the validity of a

regulation; however, we think they are too tenuous to support a conclusion that Congress has

unambiguously conferred upon Medicaid recipients a federal right to transportation enforceable

under § 1983.

                                         IV. CONCLUSION

        For the foregoing reasons, we conclude that the plaintiffs do not have a federal right,

enforceable under § 1983, to transportation to and from Medicaid providers.28 We therefore reverse

the judgment of the district court and remand with instructions to grant the State's motion to dismiss.

        REVERSED and REMANDED.

        KRAVITCH, Senior Circuit Judge, dissenting:
        I disagree with the reasoning and the result of the majority opinion on several grounds. First,

the majority improperly decides an issue that, in my view, the State waived. Moreover, the

majority's analysis of enforceable rights violates established law, which holds that a federal statute

and a validly promulgated regulation can create an enforceable right, actionable under 42 U.S.C. §

1983, if the statute and regulation together meet the three prongs of the test reiterated in Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (citations


   28
     We note briefly that we do not hold that the State is under no obligation to comply with the
transportation regulation. This is simply a different question from the one we decide today.

                                                  27
omitted). Finally, even if the majority's new approach to enforceable rights were correct, the

plaintiffs in this case still have demonstrated an enforceable right to "necessary transportation ... to

and from providers" under the Medicaid statute, 42 U.S.C. § 1396a(a), and the applicable regulation,

42 C.F.R. § 431.53. Accordingly, I respectfully dissent.

                                                   I.

       In its initial brief on appeal, the State asserted that the plaintiffs have no right to

transportation under the Medicaid statute. The State based this argument solely on its claim that the

regulation in question exceeds the scope of the enabling statute. See Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694

(1984). The State did not challenge the district court's holding that regulations deemed valid under

Chevron can be considered together with the relevant statute under all three prongs of the Wilder

test.1 The majority thus errs in resolving a claim that the State abandoned.2

                                                  II.

   1
     See Harris v. James, 883 F.Supp. 1511, 1521 (M.D.Ala.1995). In its initial brief on appeal,
the State referred to many of the same Supreme Court cases relied on by the majority, see infra
note 3, but it did not dispute that regulations could be considered under the three-prong Wilder
test. Instead, the State argued that "the Secretary's regulation for transportation services exceeds
the mandate of the Congressional statute and, therefore, is not a right within the meaning of §
1983." Appellant's Brief at 19.
   2
     An appellant's argument must be in its initial brief in order not to be considered waived.
McGinnis v. Ingram Equipment Co., Inc., 918 F.2d 1491, 1496-97 (11th Cir.1990); 9 James
Wm. Moore, Moore's Federal Practice ¶ 328.20 228.02[4],[7] (3d ed.1997). See Fed.R.App.P.
28(a) (describing required contents of appellant's brief). A claim absent from an appellant's
initial brief is considered abandoned even if the court subsequently requests supplemental
briefing on the issue. See Maryland People's Counsel v. F.E.R.C., 760 F.2d 318, 319-20
(D.C.Cir.1985) (Scalia, J.) (deeming an issue waived where a party did not raise it on appeal
until after the court requested a supplemental briefing) (citing C. Wright & A. Miller, Federal
Rules of Civil Procedure § 1295 (1969)). See also Horsley v. State of Ala., 45 F.3d 1486, 1497
(11th Cir.), cert. denied,--- U.S. ----, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995) (Hatchett, J.,
dissenting) (concluding that state waived harmless error argument when it raised claim only in
response to the panel's request for a supplemental briefing). Moreover, the majority does not
rely on the Supreme Court's recent decision in Blessing v. Freestone, --- U.S. ----, 117 S.Ct.
1353, 137 L.Ed.2d 569 (1997), in concluding that a statute and a valid regulation promulgated
thereunder may not be considered together under the three prongs of the Wilder test; thus, the
fact that the State filed its initial brief prior to Blessing does not excuse the brief's failure to
articulate a Wilder challenge. Cf. Fed.R.App.P. 2 advisory committee's note (authorizing courts
to relieve litigants of consequences of default where manifest injustice would otherwise result).

                                                  28
       Rather than addressing the Chevron question raised by the State in its initial brief, the

majority thoroughly examines several Supreme Court cases3 and discovers in them a new framework

for determining whether federal statutes and regulations create rights actionable under § 1983.

Using this framework, the majority concludes that the plaintiffs do not have an enforceable right to

transportation under § 1983. In my view, this analysis is contrary to governing Supreme Court

precedent.

       Plaintiffs asserting a violation of federal law under § 1983 must first demonstrate that an

enforceable federal right exists. According to the established three-prong test restated in Wilder,

such an enforceable right exists if: 1) the statutory provision is intended to benefit the plaintiffs;

2) the provision imposes a binding obligation on the governmental unit; and 3) the interest asserted

by the plaintiffs is not "too vague and amorphous" for judicial enforcement. 496 U.S. at 509, 110

S.Ct. at 2517. See also Blessing v. Freestone, --- U.S. ----, ----, 117 S.Ct. 1353, 1359, 137 L.Ed.2d

569 (1997). If these three conditions are met, then a § 1983 remedy is presumptively available.4

Furthermore, as demonstrated infra, even if a statutory provision alone does not satisfy the Wilder

test, the statutory provision and a valid regulation promulgated thereunder may satisfy the test and

thus confer a specific enforceable right.

       The majority, however, develops a new approach to analyzing whether a statute and a valid

regulation together create an enforceable right. It divines a stringent requirement that plaintiffs must
satisfy in order to demonstrate that an enforceable right exists: "In our view, the driving force


   3
    See Blessing v. Freestone, --- U.S. ----, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Suter v.
Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992); Wilder, supra; Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989);
Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 107 S.Ct. 766, 93
L.Ed.2d 781 (1987); Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531,
67 L.Ed.2d 694 (1981).
   4
    As the Court held in Golden State, "The burden to demonstrate that Congress has expressly
withdrawn the remedy is on the defendant. We do not lightly conclude that Congress intended to
preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right." 493
U.S. at 107, 110 S.Ct. at 449 (citations and internal quotation omitted). See also Blessing, ---
U.S. at ----, 117 S.Ct. at 1360; Wright, 479 U.S. at 423-24, 107 S.Ct. at 770.

                                                  29
behind the Supreme Court's case law in this area is a requirement that courts find a Congressional

intent to create a particular federal right."

        From this general premise, the majority derives the following test for determining whether

regulations can help create rights actionable under § 1983. A regulation can be used to create an

enforceable right if the statute itself confers an enforceable right and the regulation "merely further

defines or fleshes out the content of that right." A regulation, however, is "too far removed from

Congressional intent" and thus cannot help create an enforceable right if either: 1) the regulation

defines the content of a statutory provision that itself creates no enforceable right; or 2) the

regulation "goes beyond explicating the specific content of the statutory provision and imposes

distinct obligations in order to further the broad objectives underlying [that] provision."

        The majority's framework is based primarily on Wright v. City of Roanoke Redevelopment

and Hous. Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). In that case, a statutory

provision created an enforceable right to have rental payments capped at a certain percentage of

income, and a regulation defined rent to include charges for "reasonable amounts of utilities" Id. at

419-20, 107 S.Ct. at 768-69. The Court held that "the regulations gave low-income tenants an

enforceable right to a reasonable utility allowance...." Id. at 420 n. 3, 107 S.Ct. at 769 n. 3.

Generalizing from this single case, the majority concludes that a regulation can help create an

enforceable right only in those cases, as in Wright, where the statute standing alone confers an
enforceable right, and the regulation merely "fleshes out" the content of that right.

        The majority's approach, however, is fundamentally flawed. By requiring § 1983 plaintiffs

to demonstrate "Congressional intent to create a particular federal right," the majority appears to

depart from the three-prong Wilder test.5 According to Wilder, § 1983 plaintiffs may assert an

enforceable right under a statute simply by proving that the provision in question satisfies each of

the three prongs. 496 U.S. at 509, 110 S.Ct. at 2517. Under this test, the only Congressional intent

   5
   The majority admits that the Wilder test, recently employed in Maynard v. Williams, 72 F.3d
848, 852 (11th Cir.1996), is still "good law," but the majority's actual holding belies that
concession.

                                                  30
that the plaintiffs must show is the intent to benefit them. The majority, by contrast, would impose

on § 1983 plaintiffs the more stringent burden of showing that Congress affirmatively intended to

create a specific federal right enforceable under § 1983. This requirement is contrary to established

law.

       The majority appears to have imported into the § 1983 context the framework established

by Cort v. Ash, 422 U.S. 66, 78-85, 95 S.Ct. 2080, 2088-91, 45 L.Ed.2d 26 (1975), for determining

whether a federal statute creates an implied right of action. As the Court held in Wilder:

       In implied right of action cases, we employ the four-factor Cort test to determine whether
       Congress intended to create the private remedy asserted for the violation of statutory rights.
       The test reflects a concern, grounded in separation of powers, that Congress rather than the
       courts controls the availability of remedies for violations of statutes.

496 U.S. at 509 n. 9, 110 S.Ct. at 2517 n. 9 (citations and internal quotation omitted). Such an

affirmative showing of specific Congressional intent is not necessary to establish a § 1983 cause of

action, however. The Wilder Court continued:

       Because § 1983 provides an alternative source of express congressional authorization of
       private suits, these separation-of-powers concerns are not present in a § 1983 case.
       Consistent with this view, we recognize an exception to the general rule that § 1983 provides
       a remedy for violation of federal statutory rights only when Congress has affirmatively
       withdrawn the remedy.

Id. (citations and internal quotation omitted). By demanding that § 1983 plaintiffs establish that

Congress specifically intended to create an enforceable right, the majority thus fundamentally alters

the law governing § 1983 causes of action.
       Furthermore, the majority's treatment of regulations in its enforceable rights analysis is

inconsistent with Supreme Court precedent and with the approach taken by most courts of appeals.

Under established law, even if a statutory provision alone does not confer a specific enforceable

right, the statutory provision together with valid regulations promulgated thereunder may create

such a right. The proper methodology, employed by the Supreme Court and by the courts of appeals

in at least eight circuits,6 is to consider both the statute and its implementing regulations in

   6
   The First, Second, Third, Sixth, Seventh, Eighth, Ninth, and District of Columbia Circuits all
have found it appropriate to consider regulations in conducting the Wilder inquiry. See Farley v.

                                                 31
determining whether an enforceable right exists under the Wilder test and in defining the precise

contours of such a right.

       Thus, courts consistently have considered regulations under the first prong of the Wilder test,

which provides that a statute must be intended to benefit the plaintiffs in order to create an

enforceable right. In Blessing, for example, the Court evaluated whether two statutory provisions

were intended to benefit the plaintiffs by analyzing the statutory provisions in conjunction with their

implementing regulations.7 Courts of appeals also have considered regulations under the first prong

of the Wilder test.8 It is proper, therefore, to refer to an agency's interpretation of a statute in

deciding whether Congress intended to benefit the plaintiffs.

       Similarly, courts consistently have considered regulations under the second prong of the

Wilder test, which provides that a statute must be binding in order to create an enforceable right.

In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), for example, the Court

examined the regulations promulgated under the Adoption Assistance and Child Welfare Act to


Philadelphia Hous. Auth., 102 F.3d 697, 702 (3d Cir.1996); Doe by Fein v. Dist. of Columbia,
93 F.3d 861, 867 (D.C.Cir.1996); Tony L. By and Through Simpson v. Childers, 71 F.3d 1182,
1189 (6th Cir.1995), cert. denied,--- U.S. ----, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996); City of
Chicago v. Lindley, 66 F.3d 819, 827 (7th Cir.1995); Buckley v. City of Redding, Cal., 66 F.3d
188, 192 (9th Cir.1995); Loschiavo v. City of Dearborn, 33 F.3d 548, 552-53 (6th Cir.1994),
cert. denied, 513 U.S. 1150, 115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995); Martinez v. Wilson, 32
F.3d 1415, 1421 & n. 4 (9th Cir.1994); Howe v. Ellenbecker, 8 F.3d 1258, 1263 (8th Cir.1993),
cert. denied, 511 U.S. 1005, 114 S.Ct. 1373, 128 L.Ed.2d 49 (1994), overruled by Blessing,
supra; Albiston v. Maine Comm'r of Human Servs., 7 F.3d 258, 265 (1st Cir.1993), overruled in
part by Blessing, supra; Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1313-14 (2d
Cir.1991).
   7
     First, the Court held that the detailed statutory and regulatory requirements for States' data
processing systems only benefited individuals indirectly and did not give rise to individualized
rights to computer services.at ----, 117 S.Ct. at 1361. The Court also determined that the
statutory and regulatory staffing mandates did not give rise to individualized rights, in part
because of the tenuous link between increased staffing and the benefits provided to individuals.at
---- - ----, 117 S.Ct. at 1361-62.
   8
    See Farley, 102 F.3d at 702 (concluding that plaintiff "is an intended beneficiary of [the
statutory provision] and its accompanying HUD regulations"); Buckley, 66 F.3d at 192 ("[T]he
Act clearly is intended to benefit the plaintiffs. The Act's regulations unambiguously state a
purpose to increase access to waterways for recreational boaters and fishermen."); Loschiavo, 33
F.3d at 552 ("We have no doubt that the [plaintiffs] ... were intended beneficiaries of this
regulation.").

                                                  32
determine whether the statute created a duty binding on the State. 503 U.S. at 361, 112 S.Ct. at 1369

("The regulations ... do not evidence a view that § 671(a) places any requirement for state receipt

of federal funds other than the requirement that the State submit a plan to be approved by the

Secretary.").9 In Wilder, the Court cited and described regulatory provisions to support its

conclusion that participating states have binding obligations to adopt reasonable and adequate

Medicaid rates. 496 U.S. at 512 & 513 n. 11, 110 S.Ct. at 2519 & n. 11 (citing 42 C.F.R. §§ 430.35,

447.253(a),(b) (1989)). Courts of appeals also have considered regulations under the second prong

of the Wilder test.10

        Finally, courts consistently have considered regulations under the third prong of the Wilder

test, which provides that a statute does not create an enforceable right if the interest asserted is too

"vague and amorphous" for judicial enforcement.11 In Wilder itself, the Court examined a statutory

provision that required a State to pay hospitals such "rates [that] the State finds are reasonable and

adequate." 496 U.S. at 512, 110 S.Ct. at 2519 (citing 42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp.

V)). As the Court subsequently explained in Suter, the Wilder Court

        held that the Boren Amendment actually required the States to adopt reasonable and
        adequate rates, and that this obligation was enforceable by the providers. We relied in part
        on the fact that the statute and regulations set forth in some detail the factors to be
        considered in determining the methods for calculating rates.


   9
    As described in Part III.C, infra, Congress subsequently overruled this limited interpretation
of a State's obligations under the Social Security Act. See 42 U.S.C. § 1320a-2.
   10
     See Farley, 102 F.3d at 702 (finding that language of statute and regulation was "mandatory,
specific and clear"); Doe by Fein, 93 F.3d at 867 (stating that statutory provision failed Wilder
test because regulations, unlike regulations in Wilder, were not mandatory); Tony L. By and
Through Simpson, 71 F.3d at 1189 (concluding that statutory provision failed Wilder test
because neither statute nor regulations were mandatory); Loschiavo, 33 F.3d at 552 (stating that
regulation included "sufficient mandatory language ... to create a binding obligation...."); Howe,
8 F.3d at 1263 (finding that statute and regulations established mandates that were "particular
and specific enough to impose binding obligations"); Albiston, 7 F.3d at 265 (concluding that
statutory and regulatory provisions "impose[d] a specific, definite and mandatory obligation");
Pinnacle Nursing Home, 928 F.2d at 1313-14 (describing how Wilder Court, in concluding that
statutory provision was mandatory, relied on both statutory and regulatory language).
   11
    Indeed, the State concedes that this court may consider a statute together with regulations
under the third prong of the Wilder test. Appellant's Letter Brief at 2.

                                                  33
503 U.S. at 359, 112 S.Ct. at 1368 (emphasis added) (citing Wilder, 496 U.S. at 519 n. 17, 110 S.Ct.

at 2522 n. 17). Courts of appeals also have considered regulations under the third prong of the

Wilder test.12

        By concluding that the statute, standing alone, must meet all three prongs of the Wilder test,

the majority thus departs from Supreme Court precedent and the established practice of most courts

of appeals. In support for its novel position, the majority merely cites a passage from a Fourth

Circuit panel decision, Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987),13 an opinion which was

written prior to Wilder, Suter, and Blessing, and which has not been cited by any other court of

appeals to date. On the other hand, the Supreme Court and eight circuit courts of appeals have

considered regulations in determining whether a statutory provision creates enforceable rights, and

they have used regulations to determine the precise countours of those rights.14 The majority thus

erects its analysis upon a very thin, and, in my view, insufficient, legal foundation.

                                                 III.



   12
     See Farley, 102 F.3d at 702 (concluding that language of statute and regulation "is not too
vague or amorphous to be enforced by courts"); Lindley, 66 F.3d at 827 (finding no enforceable
right where regulations provided no clear guidance but instead merely tracked "amorphous
statutory language"); Buckley, 66 F.3d at 192 (holding that statute was unambiguous because of
clear command of regulation); Loschiavo, 33 F.3d at 552-553 (concluding that regulation was
sufficiently "unambiguous" and "straightforward" to establish enforceable right); Martinez, 32
F.3d at 1421 & n. 4 (finding no § 1983 right of action where statute had "no manageable
standards" and implementing regulations were "no clearer"); Howe, 8 F.3d at 1263 (finding that
statute and implementing regulations established mandates that were "particular and specific
enough to impose binding obligations"); Albiston, 7 F.3d at 265 (concluding that statutory and
regulatory provisions imposed "a specific, definite and mandatory obligation").
   13
    The court in Kirk held simply that "[a]n administrative regulation ... cannot create an
enforceable § 1983 interest not already implicit in the enforcing statute." Id. 821 F.2d at 984.
   14
     The Ninth Circuit's decision in Buckley, supra, renders meaningless its previous dicta in
Howard v. City of Burlingame, 937 F.2d 1376, 1380 & n. 4 (9th Cir.1991)(stating that
regulations may "define legal obligations enforceable under § 1983," but that there is "some
question as to whether they may create rights not already implied by the enabling statute"). The
Fifth Circuit appears not to have determined how to treat regulations in conducting the Wilder
inquiry. See Gracia v. Brownsville Hous., 105 F.3d 1053, 1057 (5th Cir.1997) ("[I]t is not clear
that regulations can be considered "laws' for purposes of creating a right actionable under section
1983."), cert. denied, --- U.S. ----, 118 S.Ct. 171, --- L.Ed.2d ---- (1997) (No. 97-150).

                                                 34
        Whether analyzed under the majority's framework or under the established Wilder test, the

plaintiffs have an enforceable right to transportation to and from Medicaid providers. This

enforceable right is conferred by 42 U.S.C. § 1396a(a) and 42 C.F.R. § 431.53, a valid regulation

promulgated thereunder.

                                                 A.

        According to 42 C.F.R. § 431.53, which appears under Part 431, Subpart B, entitled "General

Administrative Requirements":

        A State plan must—

(a) Specify that the Medicaid Agency will ensure necessary transportation for recipients to and from
       providers; and

(b) Describe the methods that the Agency will use to meet this requirement.

This administrative transportation requirement has existed in almost identical form since the very

beginning of the Medicaid program.15

        According to the Secretary, the transportation regulation was promulgated pursuant to

several subsections of 42 U.S.C. § 1396a(a), including (4), (8), and (19). Medical Assistance

Manual, MSA-PRG-17, § 6-20-20.A (June 6, 1972), Secretary's Exhibit A, at 1 (also basing

regulation on § 1396a(a)(1),(10), and (23)). These subsections state:

        A State plan for medical assistance must—

                                          * * * * * *
(4) provide (A) such methods of administration (including methods relating to the establishment and
        maintenance of personnel standards on a merit basis ... ) as are found by the Secretary to be
        necessary for the proper and efficient operation of the plan ...;

   15
     Adequate transportation was one of the original "criteria to assure high quality of the care
and services provided under" State Medicaid plans. Supplement D to the Handbook of Public
Assistance Administration § D-5130(2)(b) (June 17, 1966), Secretary's Exhibit B. The
transportation requirement was included in the initial interim rules for the Medicaid program, see
33 Fed.Reg. 16,165 (1968), then codified at 45 C.F.R. § 249.10(a)(4) (1970)(stating that State
plan must "specify that there will be provision for assuring necessary transportation of recipients
to and from providers of services and describe the methods that will be used"), relocated to 45
C.F.R. § 249.10(a)(5)(ii) (1974), relocated to 45 C.F.R. § 449.10(a)(5)(ii) (1977), and finally
slightly revised and relocated to 45 C.F.R. § 431.53 (1978). See 43 Fed.Reg. 45,176, 45,188
(1978) (reorganizing Medicaid regulations "without making any substantive change").

                                                 35
                                           * * * * * *

(8) provide that all individuals wishing to make application for medical assistance under the plan
       shall have opportunity to do so, and that such assistance shall be furnished with reasonable
       promptness to all eligible individuals;

                                           * * * * * *

(19) provide such safeguards as may be necessary to assure that eligibility for care and services
       under the plan will be determined, and such care and services will be provided, in a manner
       consistent with simplicity of administration and the best interests of the recipients;

42 U.S.C. § 1396a(a) (emphasis added).

        The transportation regulation is a valid exercise of the broad rule-making authority granted

to the Secretary by 42 U.S.C. § 1302(a). As the Secretary has explained, "The requirement for

transportation is based on experience and recognition that the needy will not be able to obtain

necessary and timely medical care if they are without the means of getting to the providers of

service." Medical Assistance Manual, MSA-PRG-17, § 6-20-20.A (June 6, 1972), Secretary's

Exhibit A, at 2. The transportation regulation thus is a reasonable interpretation of § 1396a(a)(4),(8),

and (19) because the provision of transportation services is an essential element of plan

administration16 and because Medicaid recipients can only receive medical assistance, care, and

services if they have adequate transportation. Moreover, Congress effectively has consented to the

Secretary's contemporaneous construction of the original Medicaid statute. See Equal Employment

Opportunity Comm'n v. Associated Dry Goods Corp., 449 U.S. 590, 600 n. 17, 101 S.Ct. 817, 823
n. 17, 66 L.Ed.2d 762 (1981) (holding that, where Congress for fifteen years never expressed its

disapproval of EEOC's contemporaneous construction of its founding statute, Congress's silence

"suggests its consent to the Commission's practice"). Because a regulation is valid if it is based on

a permissible construction of the statute and is not contrary to clearly expressed Congressional

intent, see Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82, the transportation regulation

represents a valid exercise of agency authority. See Daniels v. Tennessee Dep't of Health and

   16
     See Secretary's Brief at 5-7 (explaining why states benefit from the flexibility of being able
to provide transportation either as an administrative activity, see 42 C.F.R. § 431.53, or as an
optional medical service, see 42 U.S.C. § 1396d(a)(xi)(25) and 42 C.F.R. § 440.170(a)).

                                                  36
Environment, No. 79-3107, (M.D.Tenn. Feb.20, 1985) (stating that transportation regulation is

within agency authority); Smith v. Vowell, 379 F.Supp. 139, 152-53 (W.D.Tex.), aff'd, 504 F.2d 759

(5th Cir.1974) (pre-Chevron case concluding that transportation regulation was valid interpretation

of statute).

                                                      B.

           Even if the majority's enforceable rights approach were correct, the plaintiffs in this case still

would have an enforceable right to transportation under 42 U.S.C. § 1396a(a)(8). This statutory

provision, standing alone, creates an enforceable right to medical assistance. It plainly satisfies the

first two prongs of the Wilder test because it is intended to benefit the plaintiffs and is mandatory

on the States.17 Furthermore, even though the term "reasonable promptness" is arguably vague,18

§ 1396a(a)(8) is specific and definite in its command that "all eligible individuals" be furnished

"medical assistance." Because § 1396a(a)(8) would be judicially enforceable against a State that

refused to provide medical assistance to eligible individuals, the statutory provision plainly satisfies

the third prong of the Wilder test. Thus, standing alone, § 1396a(a)(8) confers upon the plaintiffs

an enforceable right to medical assistance.

           Moreover, as determined by the Secretary, see supra III.A, eligible individuals must have

transportation in order to obtain medical assistance. Transportation to and from medical providers

is thus an essential element of the right to medical assistance. Stated another way, the right to
medical assistance includes the right to transportation.19

   17
        See infra Part III.C.
   18
    But see Albiston, 7 F.3d at 267 (employing regulation to "demarcate the contours of
reasonable "promptness' in the Title IV-A context").
   19
     Indeed, transportation to and from medical providers is so essential to recipients' receipt of
medical services that the right to transportation is implicit in the statute itself. Cf., Livadas v.
Bradshaw, 512 U.S. 107, 132-34, 114 S.Ct. 2068, 2083-84, 129 L.Ed.2d 93 (1994) (concluding
that plaintiff had enforceable rights to complete collective-bargaining process and agree to an
arbitration clause because such rights "if not provided in so many words" were "imminent in
[the] structure" of National Labor Relations Act); Golden State, 493 U.S. at 111, 110 S.Ct. at
451 ("The violation of a federal right that has been found to be implicit in a statute's language
and structure is as much a "direct violation' of a right as is the violation of a right that is clearly

                                                      37
           Under the majority's own framework, therefore, the plaintiffs have an enforceable right to

transportation. The statute itself confers an enforceable right to medical assistance, and the

regulation merely further defines that right to include the right to transportation. This squarely

meets the majority's requirement that "so long as the statute itself confers a specific right upon the

plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then

the statute—"in conjunction with the regulation'—may create a federal right as further defined by

the regulation."

           Furthermore, the regulation at issue does not violate the majority's admonition that a

regulation that helps to create an enforceable right must not be "too far removed from Congressional

intent."      To the contrary, because the agency's transportation requirement originated

contemporaneously with the founding statute, Congress effectively has consented to the regulation.

See Associated Dry Goods Corp., 449 U.S. at 600 n. 17, 101 S.Ct. at 823 n. 17. Therefore, even

under the majority's own framework, the plaintiffs have asserted an enforceable right to

transportation under 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 431.53.

                                                   C.

           Similarly, the statutory provisions, considered in conjunction with the transportation

regulation, create an enforceable right to transportation under the established Wilder test abandoned

by the majority. Although only one of the authorizing statutory provisions, considered together with
the regulation, needs to meet the three-part Wilder test in order for the plaintiffs to have an

enforceable right to transportation, all three of the cited statutory provisions confer such a right.

           First, each statutory provision, viewed in conjunction with the implementing regulation, is

intended to benefit the plaintiffs. Both § 1396a(a)(8), requiring medical assistance to be furnished

promptly to all eligible individuals, and § 1396a(a)(19), requiring assurances that care and services

will be provided in a manner consistent with recipients' best interests, are plainly intended for the

benefit of the plaintiffs, and the transportation regulation is necessary to effectuate this purpose. Cf.


set forth in the text of the statute.").

                                                   38
Silver v. Baggiano, 804 F.2d 1211, 1216-17 (11th Cir.1986) (concluding that Medicaid statute in

general and "free choice" provision, 42 U.S.C. § 1396a(a)(23), in particular were intended to benefit

Medicaid recipients). Similarly, § 1396a(a)(4), when considered together with the transportation

regulation, is intended to benefit the plaintiffs.20

        Second, the statutory provisions and implementing regulation establish a binding obligation

on the States. The language of the statutory provisions and the regulation is mandatory, not

hortatory.   Moreover, the grant of federal money is unambiguously conditioned on States'

compliance with these provisions. See 42 U.S.C. § 1396c (stating that Secretary can suspend

payments where a State plan does not comply with any provision of § 1396a or where the State, in

administering the plan, fails to comply substantially with any such provision). Cf. Pennhurst State

Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981) ("[I]f

Congress intends to impose a condition on the grant of federal moneys, it must do so

unambiguously."). The State is thus bound to "ensure necessary transportation for recipients to and

from providers." 42 C.F.R. § 431.53.21

   20
     In Vowell, supra, the court stated that the transportation regulation, necessary for the
efficient administration of the Medicaid program, was directly related to the plaintiffs' receipt of
services:

                A fortiori, it is clear that the Secretary of HEW has determined the instant
                regulation to be necessary to the administration of the program, for the obvious
                (and common sense) reason that needy [sic] will not be able to obtain necessary
                and timely medical care if they are without the means of getting to the providers
                of the service.

        379 F.Supp. at 150 (citations and internal quotations omitted). Thus, § 1396a(a)(4) and
        42 C.F.R. § 431.53 differ from the statute and regulations considered by the Court in
        Blessing, at ----, 117 S.Ct. at 1361. There, the Court determined that "many provisions,
        like the "substantial compliance' standard, are designed only to guide the State in
        structuring its systemwide efforts at enforcing support obligations. These provisions may
        ultimately benefit individuals who are eligible for Title IV-D services, but only
        indirectly." The data processing requirements, for example, did "not give rise to
        individualized rights to computer services." Id. By contrast, as recognized by the
        Secretary and affirmed by the Vowell court, the transportation regulation at issue here is
        directly related to the benefits received by the plaintiffs.
   21
     In Suter, the Court stated that the Adoption Assistance and Child Welfare Act only required
that the "State have a plan approved by the Secretary which contains the 16 listed features." 503

                                                   39
        Finally, the interest asserted by the plaintiffs, as defined by the statutory provisions and

implementing regulation, is not "too vague and amorphous" for judicial enforcement. In Wilder, the

Court explained that an enforceable right may exist even where States have wide discretion:

        That the amendment gives the States substantial discretion in choosing among reasonable
        methods of calculating rates may affect the standard under which a court reviews whether
        the rates comply with the amendment, but it does not render the amendment unenforceable
        by a court. While there may be a range of reasonable rates, there certainly are some rates
        outside that range that no State could ever find to be reasonable and adequate under the
        Act.... [E]valuat[ing] a State's findings with respect to the reasonableness of its rates ... is
        well within the competence of the judiciary.

496 U.S. at 519-20, 110 S.Ct. at 2523. Cf. Blessing, at ---- - ----, 117 S.Ct. at 1361-62 (concluding

that the statutory and regulatory staffing mandates did not give rise to individualized rights in part

because the mandates were too vague to be enforceable).

        Just as the States in Wilder had wide discretion to establish reasonable and adequate

reimbursement rates, so the States in this case have wide discretion in determining the types of

transportation services to use in transporting Medicaid recipients.22 Nonetheless, the transportation


U.S. at 358, 112 S.Ct. at 1367. Suter thus appeared to limit the enforceable rights available
under those programs of the Social Security Act requiring State plans. After Suter, however,
Congress enacted an amendment providing: "In an action brought to enforce a provision of this
chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of
this chapter requiring a State plan or specifying the required contents of a State plan." 42 U.S.C.
§ 1320a-2. See Jeanine B. v. Thompson, 877 F.Supp. 1268, 1283 (E.D.Wis.1995) (stating that
after § 1320a-2 "the previous tests of Wilder and Pennhurst apply to the question whether or not
the particulars of a state plan can be enforced by its intended beneficiaries"). Thus, as was true
prior to Suter, required elements in a Medicaid State plan can establish substantive enforceable
rights. See Wilder, 496 U.S. at 512-15, 110 S.Ct. at 2518-20 (citing Secretary's authority under §
1396c to withhold funds for non-compliance and concluding that statute required that the State
actually adopt reasonable and adequate rates); Silver, 804 F.2d at 1216-17 (concluding that
"freedom of choice" requirement in State plan established enforceable rights in Medicaid
recipients) (quoting O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785, 100 S.Ct. 2467,
2475, 65 L.Ed.2d 506 (1980)).
   22
     The State Medicaid Manual, reprinted in Medicare & Medicaid Guide (CCH) ¶ 14,605.89,
at 6309-7 (1997), states in part:

               Federal regulations at 42 C.F.R. § 431.53 require states to assure necessary
               transportation to recipients to and from providers. A description of the method of
               assurance to be used must be included in the state's title XIX state plan.
               Transportation must be covered either under the state's administrative
               requirements, or as an optional state plan item of medical assistance, or may be
               included under both categories. .... [T]ransportation services for which a state

                                                  40
regulation unambiguously requires that all Medicaid recipients have transportation to and from their

providers. As shown by the district court's order in this case, the interest asserted by the plaintiffs

under the transportation regulation is easily enforceable. See Harris v. James, 896 F.Supp. 1120

(M.D.Ala.1995). The district court found that the State provides ambulance transportation only in

very limited circumstances, and that the State merely helps to arrange other transportation that can

be obtained without charge through volunteer groups or other sources. Id. 896 F.Supp. at 1132. The

State "makes absolutely no provision for those occasions when transportation cannot be arranged

in this fashion," and thus its plan "fails to ensure that every eligible individual will have

transportation necessary for access to care under a Medicaid reimbursement scheme." Id.

        Several other federal district courts, as well as at least one state court, also have enforced the

transportation regulation.23 Most notably, the district court in Vowell, in a decision summarily

affirmed by the Fifth Circuit, concluded that the predecessor transportation regulation, virtually

identical to the existing one, was capable of judicial enforcement:

        We read the language of the instant regulation ... as being clear and unambiguous in its
        command.... [T]he State does not have to "stipulate in advance" every possible mode of
        transportation since the situation will necessarily differ with each individual. Nevertheless,
        the command of the language is unmistakable—there must be some inclusive description of
        the primary modes of transportation that can reasonably be contemplated to be utilized.

379 F.Supp. at 159 (citation omitted). The Vowell court found that the State only provided

transportation services in limited circumstances,24 and thus it was "clear beyond all peradventure of
doubt that the Texas State Plan in both form as well as in practice is out of compliance with the

applicable Federal regulations ... and guidelines...." Id. Because the Fifth Circuit affirmed the

                claims reimbursement as an administrative expense are not subject to the
                freedom-of choice provision. For such transportation, a state may designate
                allowable modes of transportation or arrange for transportation on a prepaid or
                contract basis with transit companies.
   23
    See Morgan v. Cohen, 665 F.Supp. 1164, 1175-77 (E.D.Pa.1987); Daniels, Fant v. Stumbo,
552 F.Supp. 617, 618-19 (W.D.Ky.1982); Bingham v. Obledo, 147 Cal.App.3d 401, 404-05, 195
Cal.Rptr. 142 (Cal.Ct.App.1983).
   24
    The State provided only emergency ambulance transportation to hospitals and skilled
nursing facilities. Id. 195 Cal.Rptr. at 155-57.

                                                   41
Vowell court's determination that the transportation regulation was judicially enforceable, this court

should also find the regulation to be enforceable. See Bonner v. City of Prichard, Ala., 661 F.2d

1206, 1209 (11th Cir.1981) (en banc) (holding that all decisions of the Former Fifth Circuit handed

down prior to October 1, 1981, are binding on this court); Harris v. Menendez, 817 F.2d 737, 739

& n. 4 (11th Cir.1987) (holding a summary affirmance of district court to be binding under Bonner

). The authorizing statute and the transportation regulation thus satisfy the third prong of the Wilder

test.

        Because the statutory provisions and the regulation create an enforceable right to

transportation under the three-prong Wilder test, the final question is whether the Medicaid statute

itself creates a remedial scheme that is "sufficiently comprehensive ... to demonstrate congressional

intent to preclude the remedy for suits under § 1983." Middlesex County Sewerage Auth. v. Nat'l

Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Neither the

majority nor the State contends that a sufficient remedial scheme exists here to foreclose a § 1983

remedy.25 The plaintiffs thus have an enforceable right to transportation, actionable under § 1983.

                                                 IV.

        Employing either the approach to enforceable rights proposed by the majority or the

long-standing framework employed by the Supreme Court, I would hold that the Medicaid statute,

42 U.S.C. § 1396a(a), and the applicable regulation, 42 C.F.R. § 431.53, confer upon the plaintiffs
an enforceable right to transportation.

        I therefore respectfully DISSENT.




   25
     The majority notes that the Court in Wilder rejected an argument that "Congress has
foreclosed enforcement of the Medicaid Act under § 1983." 496 U.S. at 520-23, 110 S.Ct. at
2523-25.

                                                  42
