54 soc.sec.rep.ser. 332, Medicare & Medicaid Guide P 45,750, 11 Fla. L. Weekly Fed. C 740 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 v. Fob James, Governor David Toney, Commissioner of the Alabama Medicaid Agency54 soc.sec.rep.ser. 332, Medicare & Medicaid Guide P 45,750, 11 Fla. L. Weekly Fed. C 740 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 v. Fob James, Governor David Toney, Commissioner of the Alabama Medicaid Agency
J. Richard Cohen, Ellen Bowden, Southern Poverty Law Center, Montgomery, AL, Lawrence F. Gardella, Legal Services Corp. of AL, Montgomery, AL, for Plaintiffs-Appellees.
Daniel Aibel, U.S. Dept. of HHS, Washington, DC, for Amicus.
Appeal from the United States District Court for the Middle District of Alabama.
ANDERSON, Circuit Judge:
In the instant case, plaintiffs-appellees brought a class action under
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
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.
On November 2, 1994, the plaintiffs filed suit under
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.
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 .
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
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, 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
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 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
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.
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 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 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
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).
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.
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
§ 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.
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 § 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, 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, 520 U.S. 329, 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:
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.”
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 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 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 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?
(a) A State plan for medical assistance must—
(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
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 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.
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 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.
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 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 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.
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
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, 520 U.S. 329, 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
Next, we turn to the provision of
Finally, we find no right under the regulation read in conjunction with any of the remaining statutory sections cited by the plaintiffs:
IV. CONCLUSION
For the foregoing reasons, we conclude that the plaintiffs do not have a federal right, enforceable under
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
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.
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
Plaintiffs asserting a violation of federal law under
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 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
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
The majority appears to have imported into the
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
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
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 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 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
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
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.
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 contours of those rights.14 The majority thus erects its analysis upon a very thin, and, in my view, insufficient, legal foundation.
III.
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
A.
According to
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
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 ...;
* * * * * *
(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;
The transportation regulation is a valid exercise of the broad rule-making authority granted to the Secretary by
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
Moreover, as determined by the Secretary, see supra Part 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
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
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
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
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, 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 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. 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 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
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,
I therefore respectfully DISSENT.
Notes
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 23, 101 S.Ct. 1531, 1543, 67 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: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.
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 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“).
Suter v. Artist M., 503 U.S. 347, 361, 112 S.Ct. 1360, 1369, 118 L.Ed.2d 1 (1992).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.
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
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,
Federal regulations at
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