          United States Court of Appeals
                      For the First Circuit


No. 13-1456

      HANS BRUNS and KADRA HASSAN, on behalf of themselves
            and other similarly situated individuals,

                     Plaintiffs, Appellants,

                                v.

                   MARY MAYHEW, Commissioner,
         Maine Department of Health and Human Services,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]



                              Before

                   Howard, Stahl and Thompson,
                         Circuit Judges.



     Jennifer A. Archer, with whom Kelly Remmel & Zimmerman, Jack
Comart, Maine Equal Justice Partners, Zachary L. Heiden and ACLU of
Maine Foundation were on brief, for appellants.
     Justin B. Barnard, Assistant Attorney General, with whom Janet
T. Mills, Attorney General, and Doris A. Harnett, Assistant
Attorney General, were on brief, for appellee.



                          April 28, 2014
            HOWARD,      Circuit    Judge.      After   Congress    passed    the

Personal Responsibility and Work Opportunity Reconciliation Act of

1996 ("PRWORA"), narrowing the eligibility of non-citizens for

Medicaid and other federal benefits, the state of Maine responded

in 1997 by extending state-funded medical assistance benefits to

certain legal aliens rendered ineligible for Medicaid.                 In 2011,

the Maine Legislature terminated these benefits.              The appellants

allege that this termination of their benefits violated their

rights   under    the    Equal     Protection   Clause   of   the    Fourteenth

Amendment, and presently appeal from the district court's denial of

their    motion    for     a   preliminary      injunction.         Finding   no

constitutional violation, we affirm the district court's denial of

a preliminary injunction and remand for dismissal.

                                        I.

            Medicaid is a cooperative federal-state program created

in 1965 as an amendment to the Social Security Act in order to help

states provide publicly-funded medical assistance to certain needy

citizens.   See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.

2566, 2581 (2012). A state's participation in the Medicaid program

is voluntary, but once a state chooses to participate it must

comply with federal statutory and regulatory requirements in order

to receive federal matching funds. See 42 U.S.C. §§ 1396-1, 1396a,

1396b, 1396c; id. at 2581; id. at 2601, 2604 (Roberts, C.J., joined

by Breyer and Kagan, JJ.); Frew ex rel. Frew v. Hawkins, 540 U.S.


                                       -2-
431, 433 (2004).       The      eligibility    requirements for Medicaid

coverage are governed by federal law.             Under the Medicaid Act,

participating states must provide full Medicaid services under the

approved state plan to certain groups of individuals who meet the

eligibility criteria, including "categorically needy" groups.                 See

42 U.S.C. §§ 1396a(a)(10)(A)(I), 1396d(a); Lewis v. Thompson, 252

F.3d 567, 570 (2d Cir. 2001). For years, federal Medicaid extended

medical   assistance      to    eligible   individuals   without     regard   to

citizenship status or durational residency.              By act of Congress,

however, the alien eligibility requirements for publicly-funded

benefits, including Medicaid, changed dramatically in 1996.              See 8

U.S.C. §§ 1601-1646.

            In enacting PRWORA, Pub. L. No. 104-193, 110 Stat. 2105

(1996)    (also   known    as    the   "Welfare   Reform    Act"),    Congress

restricted the ability of aliens to access federal public welfare

benefits, including Medicaid.          See 8 U.S.C. §§ 1611, 1612, 1621,

1622.    PRWORA divided non-citizens into categories of "qualified"

and "non-qualified" aliens, see id. §§ 1611, 1641(b), and further

restricted eligibility for federal welfare benefits by imposing a

five-year United States residency requirement for most qualified

aliens, see id. § 1613.            Although PRWORA authorized states to

expand the category of qualified aliens eligible for federal

benefits, it prohibited the states from extending federal benefits




                                       -3-
to most aliens residing in the United States for less than five

years.       See id. § 1612(b).1

               PRWORA    left     the     states    more    discretion      in    the

dispensation of state public benefits, authorizing the states "to

determine the eligibility for any State public benefits of an alien

who is a qualified alien," including qualified aliens residing less

than five years in the United States.                Id. § 1622(a).      The Maine

Legislature accordingly responded to PRWORA by enacting Public Law

1997, chapter 530, section A-16 (the "1997 State Legislation,"

codified at Me. Rev. Stat. tit. 22, § 3762(3)(B)(2), as amended),

which empowered the state Department of Health and Human Services

("DHHS")       to   provide     medical    assistance      benefits    to   PRWORA-

ineligible aliens residing in Maine.               Although these benefits were

purely state-funded, this program was jointly administered with the

federal-state cooperative Medicaid program for eligible citizens

and qualified aliens, and both the state-funded program and the

state Medicaid program became known as "MaineCare."                   In June 2011,

however, the Maine Legislature passed Public Law 2011, chapter 380,

section KK-4 (the "2011 State Legislation"), a budgetary measure

that       terminated   state-funded       non-emergency     medical    assistance

benefits for PRWORA-ineligible aliens residing less than five years

in   the     United     States,   essentially       repealing   the    1997      State


       1
      We refer throughout this opinion to aliens absolutely barred
from federal benefits by PRWORA's five-year residency requirement
(such as the appellants here) as "PRWORA-ineligible aliens."

                                          -4-
Legislation. In September 2011, DHHS sent form termination notices

to   approximately   500   non-citizens,    informing   them   that   their

MaineCare benefits were being terminated and that they would remain

eligible only for emergency care benefits.

           The appellants Hans Bruns and Kadra Hassan represent a

class of PRWORA-ineligible aliens residing in Maine and rendered

ineligible for non-emergency medical assistance benefits as a

result of the 2011 State Legislation.          Bruns filed this class

action complaint against Mary Mayhew in her official capacity as

the Commissioner of DHHS in April 2012, and moved for a preliminary

injunction against enforcement of the 2011 State Legislation.           In

the complaint, Bruns alleged that the state violated the Equal

Protection Clause of the Fourteenth Amendment by continuing to

provide MaineCare benefits to United States citizens while denying

those benefits to similarly situated non-citizens due solely to

their alienage.

           The Commissioner opposed the motion for a preliminary

injunction, and also filed a motion to dismiss the complaint.           In

November 2012, the district court denied without prejudice the

Commissioner's    motion    to   dismiss.      Although    the   relevant

legislative history and statutory provisions strongly suggested

that the appellants were not similarly situated to United States

citizens and eligible aliens receiving Medicaid and thus that they

were not treated unequally by the state of Maine, the district


                                   -5-
court concluded that this determination ultimately came too close

to a factual finding and was therefore inappropriate to resolve on

a motion to dismiss.

          In March 2013, the district court denied the appellants'

motion for a preliminary injunction.     The court found that the

state had effectively operated two separate medical assistance

programs and that the appellants, as PRWORA-ineligible aliens

receiving separately-funded benefits from a state program, were not

similarly situated to recipients of federal Medicaid. Accordingly,

the court concluded that the appellants were unlikely to succeed on

the merits of their equal protection claim. Secondarily, the court

also concluded that the appellants had not established a potential

for irreparable harm.   This appeal followed.

                                II.

          "We review the denial of a preliminary injunction under

a deferential standard, reversing only upon finding a mistake of

law, a clear error in fact-finding, or other abuse of discretion."

Nat'l Org. for Marriage v. Daluz, 654 F.3d 115, 117 (1st Cir.

2011).   To obtain a preliminary injunction, a plaintiff "must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest." Winter v. Natural Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). We have recognized the first


                                -6-
two factors, likelihood of success and of irreparable harm, as "the

most important" in the calculus.    González-Droz v. González-Colón,

573 F.3d 75, 79 (1st Cir. 2009).        The appellants argue that the

district court erred in concluding that they had demonstrated

neither a likelihood of success on the merits of their equal

protection challenge nor a likelihood of irreparable harm absent a

preliminary injunction. Because we hold that the appellants cannot

succeed on the merits of their claim, we need not consider the

likelihood of irreparable harm.

          The appellants argue that the termination of their state-

funded medical benefits under the 2011 Legislation represented

selective alienage-based treatment by the state of Maine.      In the

appellants' estimation, the state's action discriminated against a

suspect class and therefore warrants strict scrutiny, requiring the

state to demonstrate that the alienage classification advances a

compelling state interest by the least restrictive means available.

          The Commissioner advances no argument that the 2011 State

Legislation would survive strict scrutiny.       Instead, the crux of

the Commissioner's defense, and of the district court's ruling, is

that Maine did not discriminate against aliens and in favor of

citizens at all. The Commissioner suggests that the only alienage-

based distinction implicated in this case was the one drawn by

Congress in PRWORA, a distinction subject only to deferential




                                  -7-
rational basis review in light of the federal government's broad

authority over immigration and naturalization.

             This case thus intertwines a core question of equal

protection jurisprudence, concerning the proper scope of comparison

in determining whether a plaintiff is similarly situated to another

group or entity treated more favorably under the law, with notions

of federalism concerning the respective roles of federal and state

governments in immigration policy and Medicaid alike.                   Before

turning to the merits of this case, we therefore pause to limn some

overarching equal protection principles in the context of alienage.

             A.     Equal Protection Framework

             In order to establish an equal protection violation, a

plaintiff must show state-imposed disparate treatment compared with

others similarly situated "'in all relevant respects.'" Barrington

Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8

(1st Cir. 2001) (quoting Dartmouth Review v. Dartmouth Coll., 889

F.2d   13,   19   (1st   Cir.   1989),    overruled   on    other   grounds    by

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st

Cir. 2004)).       In determining whether two groups are similarly

situated,    we   have   identified      the   somewhat    imprecise   test   as

"whether a prudent person, looking objectively . . . would think

them roughly equivalent."        Dartmouth Review, 889 F.2d at 19.            Put

differently, "the proponent of the equal protection violation must

show that the parties with whom he seeks to be compared have


                                      -8-
engaged in the same activity vis-à-vis the government entity

without such distinguishing or mitigating circumstances as would

render the comparison inutile."         Cordi-Allen v. Conlon, 494 F.3d

245, 251 (1st Cir. 2007).

            Alienage,   like   race    and   nationality,    constitutes    a

suspect classification under the Fourteenth Amendment.          See Graham

v. Richardson, 403 U.S. 365, 372 (1971) (invalidating state-imposed

alienage-based classifications).        Because "[a]liens as a class are

a prime example of a 'discrete and insular' minority," a state's

alienage-based    classifications       inherently   raise    concerns     of

invidious discrimination and are therefore generally subject to

strict judicial scrutiny.      Id. (quoting United States v. Carolene

Prods. Co., 304 U.S. 144, 152-53 n.4 (1938)).                Though states

traditionally enjoy broad power to regulate economics and social

welfare, even the otherwise "valid interest in preserving the

fiscal integrity of [state] programs" is generally insufficient

grounds for a state-imposed burden on alienage to survive an equal

protection challenge.     Id. at 374-75.

            The calculus is markedly different for congressional acts

distinguishing on the basis of alienage, evaluated under the Due

Process Clause of the Fifth Amendment.          See Mathews v. Díaz, 426

U.S. 67, 80-85 (1976) (holding that congressional alienage-based

restrictions on federal Medicare benefits did not violate due

process).    Unlike other suspect classifications such as race and


                                      -9-
nationality,    congressional    disparate    treatment   of    aliens    is

presumed   to   rest   on   national   immigration   policy    rather   than

invidious discrimination. See id. at 79-80. Because Congress acts

with plenary authority when it legislates the rights and benefits

to be afforded aliens present in this country, such congressional

acts are appropriately afforded rational basis judicial review.

See id. at 80-85.       States do not share in this plenary federal

power, though they obviously are impacted by its exercise.               See

Plyler v. Doe, 457 U.S. 202, 225 (1982); Hampton v. Mow Sun Wong,

426 U.S. 88, 95 (1976) ("Congress and the President have broad

power over immigration and naturalization which the States do not

possess.").     The Supreme Court has, however, stated that "if the

Federal Government has by uniform rule prescribed what it believes

to be appropriate standards for the treatment of an alien subclass,

the States may, of course, follow the federal direction."          Plyler,

457 U.S. at 219 n.19.

            Because Medicaid, unlike Medicare, is not solely funded

and administered by the federal government, this case does not fall

neatly within the holding of Mathews.          On the other hand, the

alienage-based distinction in this case does not originate purely

from state legislation, unlike the restrictions struck down in

Graham.    Instead, this case presents a Gordian knot of federal and

state legislation effecting an adverse impact on resident aliens:

a federal-state cooperative program (Medicaid), the eligibility for


                                   -10-
which was subsequently limited on the basis of alienage by federal

legislation (PRWORA), to which the state of Maine responded by

first creating, and then terminating, supplemental state-funded

medical assistance benefits for PRWORA-ineligible aliens only.                 We

now examine this state legislation in more detail in order to

properly evaluate the equal protection claim before us.

            B.       MaineCare

            In   concluding      that   the    appellants    were   unlikely    to

succeed on the merits of their equal protection claim, the district

court explained that "because there were two separate programs [in

Maine]    distributing     medical       benefits   to      Medicaid-ineligible

qualified aliens and citizens . . . [and] citizens were statutorily

unable to receive health benefits under the same state-sponsored

program, the Plaintiffs are unable [to] show [that] they were

similarly situated with citizens for equal protection purposes."

Bruns v. Mayhew, 931 F. Supp. 2d 260, 273 (D. Me. 2013).                       It

arrived at this conclusion after a thorough analysis of the

"[c]ontours of the [d]isputed [p]rograms," noting inter alia that

"[t]he    statutorily     mandated      separate    funding    structures      for

MaineCare, which receives federal and state funds, and the aliens-

only program, which received only state funds post-PRWORA, is the

first    indicator   of   [the    programs']     independence";     that   these

separate funding structures "also signify that the programs were

separately controlled by the governments that funded them"; and


                                        -11-
that "the history of the benefit programs, specifically the federal

government's express relinquishment of its former obligation to

provide benefits for qualified aliens subject to the residency

requirement and the State's decision to assume that obligation only

underscores their autonomy."     Id. at 272-73.

          The appellants aver that "[t]he District Court erred as

a matter of fact and law when it concluded that there was no class

of citizens who were similarly situated to the Plaintiffs," because

(in their view) Maine operated a "unitary medical assistance

benefits program" for citizens and aliens alike.       To evaluate this

contention, we begin where the district court did -- by examining

the legal contours through which such publicly-funded benefits have

been provided to Maine residents.

          As we have explained above, PRWORA seismically shifted

the landscape of Medicaid funding in 1996. Despite the cooperative

federal-state   nature   of   Medicaid   benefits,   PRWORA   classifies

Medicaid as a "federal program" from which many subclasses of

aliens are excluded, including legal residents who have not yet

resided in this country for five years.      Participating states are

statutorily obligated to alter Medicaid benefits available to their

residents in order to remain compliant with evolving federal law.

Nevertheless, in enacting PRWORA Congress authorized the states to

provide purely state-funded welfare benefits to legal aliens, and

in 1997, the state of Maine enacted legislation to ameliorate the


                                  -12-
effects of PRWORA for legal aliens who would have remained eligible

for Medicaid benefits but for PRWORA.         Maine therefore dispensed

both the Medicaid medical assistance funds for eligible residents

and the state supplemental medical assistance funds for PRWORA-

ineligible alien residents under the auspices of MaineCare.              In

2011, the state legislature repealed the 1997 State Legislation's

grant of state supplemental medical assistance benefits for PRWORA-

ineligible aliens.   At present, publicly-funded medical assistance

remains available to eligible Maine residents through federal-state

Medicaid funding still known locally as MaineCare.

           With this context established, we turn to the appellants'

first contention that the district court erred in construing the

1997 State Legislation as establishing a new state program distinct

from Medicaid.    The 1997 State Legislation mandated that "funds

must be expended"

           [t]o provide financial and medical assistance
           to certain noncitizens legally admitted to the
           United States. Recipients of assistance under
           this   subparagraph   are   limited   to   the
           categories of noncitizens who would be
           eligible for the TANF or Medicaid programs but
           for their status as aliens under PRWORA.
           Eligibility for the TANF and Medicaid programs
           for these categories of noncitizens must be
           determined using the criteria applicable to
           other recipients of assistance from these
           programs.

Me. Pub. L. 1997, ch. 530, § A-16 (codified at Me. Rev. Stat. tit.

22,   §   3762(3)(B)(2),   as     amended).       In       the   appellants'

interpretation,   the   last    sentence   bespeaks    a    single   medical

                                  -13-
assistance program provided by the state of Maine for citizens and

aliens alike.   Parsing its language closely, they suggest that had

the legislature intended to create a separate and distinct program

for ineligible aliens, "it would have referenced other recipients

of 'those programs,' rather than 'these programs.'"

          The appellants, however, gloss over the immediately

preceding sentence, which expressly limits state assistance to "the

categories of noncitizens who would be eligible for the TANF or

Medicaid programs but for their status as aliens under PRWORA."

This sentence clearly evinces the legislature's awareness that this

subclass of aliens was ineligible for federally-sponsored Medicaid

due to "their status as aliens under PRWORA."   We therefore agree

with the Commissioner's suggestion that "a sensible reading of the

final sentence" shows only that the legislature intended to utilize

"the same eligibility standards (save citizenship requirements)"

for PRWORA-ineligible aliens applying for state assistance as were

utilized for Medicaid applicants.

          The appellants also allege that, in practice, Maine

operated a single state healthcare program, MaineCare, which did

not distinguish between eligible citizens and aliens on the one

hand and PRWORA-ineligible aliens on the other.     The appellants

emphasize, inter alia, that the state referred to all public

medical assistance benefits as "MaineCare" and informed PRWORA-

ineligible aliens in 2011 that their "MaineCare" benefits were


                                -14-
being changed; that the state applied the same eligibility criteria

and used the same application form for all MaineCare applicants;

that citizens and non-citizens received the same "full benefits";

and that the state occasionally submitted its expenditures on

PRWORA-ineligible aliens to the federal government, which later

sought reimbursement from the state. The Commissioner acknowledges

that the appellants' materials "collectively suggest that the Maine

Department of Health and Human Services did not distinguish, both

outwardly and in certain aspects of its internal administration,

between the Medicaid benefit provided to citizens and eligible

aliens and the state-created benefit that was provided to Medicaid-

ineligible aliens."   Nevertheless, the Commissioner maintains that

public perception and common administration do not render the

federal-state Medicaid benefits and the state aliens-only benefits

legally indistinct for equal protection purposes.

          We agree with the Commissioner.    The veneer of a single

MaineCare program merely obscured the legal reality that, from 1997

to 2011, MaineCare recipients received benefits from two distinct

programs: one funded jointly by the federal and state governments,

with the federal government retaining ultimate authority over,

inter alia, eligibility criteria; and the other fully funded and

controlled by the state government.    It was the federal government

that determined the appellants' ineligibility for Medicaid benefits

by enacting PRWORA, to which the state responded by extending


                                -15-
equivalent     state-funded   medical      assistance   benefits   to   the

appellants for a time.

             The Ninth Circuit's analysis in Pimentel v. Dreyfus, 670

F.3d 1096 (9th Cir. 2012), rejecting a comparable equal protection

challenge to the termination of a state food assistance program for

PRWORA-ineligible aliens only, is particularly instructive here.

Like MaineCare, Washington's "Basic Food Program" jointly provided

state-funded    food   assistance   to     PRWORA-ineligible   aliens   and

federal Supplemental Nutrition Assistance Program ("SNAP") benefits

to citizens and eligible aliens.           The agency employed a single

application form and identical eligibility criteria for all aid

recipients, and the aid recipients themselves were not informed of

the source of their benefits.       Id. at 1101-02.     The state was also

authorized to issue federal SNAP benefits to ineligible aliens so

long as it then reimbursed the federal government for the value of

the benefit and associated administrative costs.          Id. at 1100-01.

The Ninth Circuit nevertheless held that "[t]he appearance of a

single program does not overcome this fact: the two programs are,

in reality, two separately administered programs funded by two

distinct sovereigns," leaving the plaintiffs dissimilarly situated

to SNAP recipients.     Id. at 1107.       The court elaborated:

             A careful consideration of the contours of the
             SNAP program, including the statutory scheme,
             source   of    funding,   extent    of   state
             involvement, and history, demonstrates that
             SNAP is a federal program which the state
             merely assists in administering, rather than a

                                    -16-
           state   program    which   receives federal
           assistance, and that its beneficiaries are
           differently situated from, and cannot be
           compared to, [the named plaintiff].

Id. at 1108; see also Hong Pham v. Starkowski, 16 A.3d 635, 654-55

(Conn. 2011) (examining the contours of Medicaid and finding

plaintiffs,    PRWORA-ineligible            aliens     formerly      receiving

supplemental   state   medical    assistance         benefits,    dissimilarly

situated to Medicaid recipients "[i]n light of the scope of federal

control over the federal Medicaid program and the extent to which

the federal government funds that program").

           Contrary    to   the   appellants'        suggestion    that     Maine

operated a single state medical assistance program for all state

residents, we therefore agree with the district court's conclusion

that MaineCare comprised two separate medical assistance programs:

federal-state cooperative Medicaid and a state supplemental program

for   PRWORA-ineligible     aliens    only.          When   it   repealed    the

supplemental aliens-only program, the state of Maine did not

deprive the appellants of a benefit that it continued to provide to

citizens -- or to anyone else, for that matter.             Consequently, the

appellants cannot point to any similarly situated individuals who

remain "engaged in the same activity vis-à-vis the government

entity."   Cordi-Allen, 494 F.3d at 251 (emphasis added); see also

Hong Pham, 16 A.3d at 650 ("[T]he equal protection clause does not

require the state to treat individuals in a manner similar to how

others are treated in a different program governed by a different

                                     -17-
government."); Pimentel, 670 F.3d at 1107; Soskin v. Reinertson,

353 F.3d 1242, 1255-56 (10th Cir. 2004); Khrapunskiy v. Doar, 909

N.E.2d 70, 76-77 (N.Y. 2009).2

           The fact that Maine voluntarily participated in Medicaid

does not alter our analysis.     By the appellants' logic, Maine's

continued voluntary participation in Medicaid and compliance with

PRWORA violated the Equal Protection Clause, requiring the state to

either withdraw from Medicaid altogether or to create an equivalent

state-funded   medical   assistance   benefit   for   PRWORA-ineligible

aliens.   Of course, Maine did the latter for a time; according to

the appellants, the state's termination of those equivalent state-

funded benefits placed it in violation of the Equal Protection



     2
      In light of this distinction between federal and state
action, we find the appellants' cases unpersuasive. Aliessa ex
rel. Fayad v. Novello, 754 N.E.2d 1085 (N.Y. 2001), addressed a
state's discretionary imposition of alienage-based criteria for
purely state-funded benefits, rendering the plaintiff aliens
similarly situated to citizens still receiving these benefits.
(The New York Court of Appeals itself later underscored this
distinction in Khrapunskiy, 909 N.E.2d at 76-77.) Although Ehrlich
v. Perez, 908 A.2d 1220 (Md. 2006), invalidated the termination of
a state-funded benefits program for PRWORA-ineligible aliens only,
the Maryland court relied heavily on Aliessa without addressing
this distinction. As for Unthaksinkun v. Porter, No. 11-588, 2011
WL 4502050 (W.D. Wash. Sept. 28, 2011), Finch v. Commonwealth
Health Insurance Connector Authority (Finch II), 959 N.E.2d 970
(Mass. 2012), and Finch v. Commonwealth Health Insurance Connector
Authority (Finch I), 946 N.E.2d 1262 (Mass. 2011), these cases
involved Medicaid "demonstration programs" rather than federal-
state cooperative Medicaid programs per se.      See Finch II, 959
N.E.2d at 974, 981 (explaining that Massachusetts' Commonwealth
Care program, although federally-subsidized, was "State-initiated,"
"entirely State-run," "entirely under State control, and not bound
by uniform Federal rules").

                                 -18-
Clause, just as it would have been had it never extended those

benefits in the first place.

            The Equal Protection Clause does not place the state in

such a Procrustean bed.          The fact that Congress discriminated on

the basis of alienage in enacting PRWORA does not also establish

alienage-based      discrimination      by     Maine   merely   because      of   its

continued Medicaid participation and required compliance with

PRWORA.    While the federal government determines certain baseline

eligibility      requirements     and    selects       particular     classes     of

categorically needy persons who are eligible to receive Medicaid

benefits,    a   state,     by   choosing      to   participate     in    Medicaid,

generally adopts the grouping of federal eligibility requirements

as a whole.      Like the Hong Pham court, we therefore conclude that

if Maine can be said to have "discriminated" at all, it only did so

on   the    basis    of     federal     Medicaid       eligibility,      a   benign

classification subject to mere rational basis review.                    See id. at

659; cf. Soskin, 353 F.3d at 1255-56.

            Like    other    courts     facing      similar   post-PRWORA     equal

protection claims, we therefore conclude that the state was under

no constitutional obligation to "fill the gap" created by PRWORA by

extending equivalent state-funded benefits to federally-ineligible

aliens.    See Korab v. Fink, No. 11-15132, 2014 WL 1302614, at *2,

*9 (9th Cir. Apr. 1, 2014); Pimentel, 670 F.3d at 1109; Hong Pham,

16 A.3d at 661; Khrapunskiy, 909 N.E.2d at 77; cf. Sudomir v.


                                        -19-
McMahon, 767 F.2d 1456, 1465-66 (9th Cir. 1985). Because Maine was

not obligated to extend equivalent state-funded benefits to the

appellants in the first place, it follows that the termination of

those benefits does not violate the Equal Protection Clause.                     See

Pimentel, 670 F.3d at 1109-10; Hong Pham, 16 A.3d at 661.

            As     a    last   stand,   the    appellants     rely   on   Graham's

proclamation that Congress "does not have the power to authorize

the individual States to violate the Equal Protection Clause." 403

U.S.   at   382.        More   specifically,      they    contend    that   "[t]he

Commissioner cannot seek shelter for her equal protection violation

in Congress's enactment of PRWORA" because PRWORA did not "create

a national uniform immigration policy with respect to access to

medical care," and instead left "the decision of whether to provide

medical assistance for medically indigent non-citizens who have

been in the country less than five years to the individual states."

However, as we have explained above, the appellants' argument rests

on the assumption that a state's mere participation in Medicaid,

subject to PRWORA's mandatory eligibility restrictions, represents

alienage-based         discrimination.        Because    we   conclude    that   the

state drew no distinctions on the basis of alienage, Graham's

proscription does not apply here, and we therefore need not reach




                                        -20-
the question of whether Maine acted in accordance with uniform

federal policy.3

            In short, the disparate treatment challenged by the

appellants is not attributable to legislation enacted by the state

of Maine.   Instead, the appellants are experiencing the impact of

a congressional decision -- PRWORA's mandatory five-year residency

requirement -- restricting their eligibility for public welfare

benefits, including federal-state cooperative programs such as

Medicaid.     As a result, there is no class of similarly situated

citizens with whom the appellants can be compared vis-à-vis the

state of Maine.      We therefore conclude that the appellants' equal

protection claim fails on the merits and that the district court

properly    denied    the   appellants'    request   for   a   preliminary

injunction.

            C.       Dismissal

            One final task remains.       The Commissioner requests that

we remand and order the district court to dismiss this case

outright.     The request is a sound one.      We may remand a case for

dismissal after reviewing a district court's preliminary injunction


     3
      Even assuming arguendo that Maine discriminated on the basis
of alienage in declining to extend state-funded benefits to PRWORA-
ineligible aliens, we question whether the state's action would in
fact run afoul of Graham. We need not decide the question today,
but we note that both the Ninth and Tenth Circuits have held that
PRWORA represents a uniform federal policy such that a state's
exercise of its discretion under 8 U.S.C. §§ 1612(b) and 1622(a)
garners only rational basis review under Plyler. See Korab, 2014
WL 1302614, at *8; Soskin, 353 F.3d at 1255.

                                   -21-
order, see First Med. Health Plan, Inc. v. Vega-Ramos, 479 F.3d 46,

50-51 (1st Cir. 2007), and we do so here.

           In order to survive a motion to dismiss, a complaint

"must provide fair notice to the defendants and state a facially

plausible legal claim."      Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 12 (1st Cir. 2011). "Non-conclusory factual allegations in

the complaint must [] be treated as true, even if seemingly

incredible," id., but a court is "'not bound to accept as true a

legal conclusion couched as a factual allegation,'" Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)).

           In its order denying without prejudice the Commissioner's

motion to dismiss for failure to state a claim, the district court

was decidedly skeptical as to the merits of the appellants' equal

protection claim, and allowed the case to go forward "despite some

misgivings."    Bruns v. Mayhew, No. 12-131, 2012 WL 5874812, at *13

(D. Me. Nov. 20, 2012).       Nevertheless, the district court felt

constrained by the deferential pleading standard and found "the

line between factual allegation and legal conclusion [] too murky

for a clean and decisive resolution," because in its opinion the

question   of   whether   Maine   operated   separate   medical   benefits

programs appeared to be "a factual issue."        Id. at *9, *13.

           In opposing dismissal, the appellants agree with the

district court's reasoning and also point to the Ninth Circuit's


                                   -22-
analysis in Pimentel, which looked to the "the statutory scheme,

source of funding, extent of state involvement, and history" to

determine whether recipients of state-funded food assistance were

similarly situated to federal SNAP recipients.                    670 F.3d at 1108.

The appellants err, however, in framing Pimentel's analysis as a

"factual inquiry."         The Pimentel court focused almost exclusively

on the legal contours of the federal and state food assistance

programs, and not at all on the plaintiffs' factual allegations

regarding the administration and appearance of the programs.

Indeed,   the     court     explicitly     stated,        "The     statutory     scheme

establishes that the SNAP program is federal."                        Id. (emphasis

added).

            Likewise, both the appellants' underlying complaint and

our own analysis in this case are grounded in law rather than fact.

The appellants set forth Maine's purportedly unconstitutional

legislative      actions    in     a   section       of   their    complaint     titled

"Statutory Framework," separate from the "Factual Allegations"

section describing the individual appellants' medical conditions

and   denial     of   benefits.         That    section      is    rife   with    legal

conclusions, stating inter alia that "PRWORA did not prescribe a

uniform   rule    for     the     treatment     of    aliens";     that   "[a]lthough

MaineCare      benefits     for    [PRWORA-ineligible]            non-citizens    were

exclusively state-funded while United States citizen benefits were

jointly funded by the federal and state governments, this did not


                                         -23-
create an independent state Medicaid program for lawful permanent

residents in Maine"; and that the 2011 Legislation "den[ied] non-

citizens lawfully residing in Maine full MaineCare coverage while

allowing similarly situated United States citizens to retain those

same MaineCare benefits."

            In finding no equal protection violation in this case, we

have taken as true the appellants' allegations that Maine's state-

funded    supplemental   medical   assistance   benefits   for   PRWORA-

ineligible aliens were jointly administered with, and outwardly

indistinguishable from, the Medicaid benefits enjoyed by citizens

and eligible aliens. We reject only their legal conclusions, which

we are under no obligation to accept.        See Twombly, 550 U.S. at

555.

            The appellants alternatively suggest that even if strict

scrutiny is unwarranted, dismissal is nevertheless inappropriate

because they are entitled to discovery on the question of whether

Maine's actions would violate the Equal Protection Clause under

more deferential review.      More specifically, they suggest that

discovery may uncover evidence of a discriminatory animus against

aliens, invalidating the state's action even under rational basis

review.     This argument is doubly flawed.        First, as we have

explained above, as a matter of law, Maine did not discriminate on

the basis of alienage at all.      Second, and more fundamentally, the

appellants' underlying complaint does not allege discriminatory


                                   -24-
animus on the part of the state, nor does it anywhere suggest that

Maine's actions violated the Equal Protection Clause even under

rational basis review.      The appellants therefore cannot salvage

their complaint now by invoking such a claim for the first time.

See Alicea v. Machete Music, No. 12-1548, 2014 WL 888909, at *6

(1st Cir. Mar. 7, 2014) ("The plaintiffs' failure to adequately

raise this argument below dooms it on appeal."); Iverson v. City of

Boston, 452 F.3d 94, 102 (1st Cir. 2006) ("[T]heories not squarely

and timely raised in the trial court cannot be pursued for the

first time on appeal.").

                                  III.

             For the foregoing reasons, the appellants have failed to

state a claim under the Equal Protection Clause.           We therefore

affirm the district court's denial of a preliminary injunction and

remand   with    instructions   that   the   appellants'   complaint   be

dismissed.




                                  -25-
