CALIFORNIA STATE FOSTER PARENT ASSOCIATION; CALIFORNIA STATE CARE PROVIDERS ASSOCIATION; LEGAL ADVOCATES FOR PERMANENT PARENTING v. JOHN WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity
No. 09-15025
UNITED STATES COURT OF APPEALS FOR THE NINTH
August 30, 2010
13015
Before: Mary M. Schroeder and Consuelo M. Callahan, Circuit Judges, and Carlos F. Lucero,* Circuit Judge.
Appeal from the United States District Court for the Northern District of California. William H. Alsup, District Judge, Presiding. Argued and Submitted December 7, 2009. Submission Vacated December 8, 2009. Resubmitted for Decision August 23, 2010. San Francisco, California. *The Honorable Carlos F. Lucero, United States Circuit Judge for the Tenth Circuit, sitting by designation.
Opinion by Judge Schroeder;
Concurrence by Judge Callahan
COUNSEL
Richard S. Ballinger, Palo Alto, California, for plaintiffs-appellees California State Foster Parent Association, et al.
Susan M. Carson, San Francisco, California, for defendants-appellants John Wagner, et al.
OPINION
SCHROEDER, Circuit Judge:
The federal Child Welfare Act (“CWA” or “the Act“) provides money to state governments to pay for children‘s foster care and adoption assistance programs.
In California, foster parents have become concerned because the State‘s payments are not covering their costs to the extent allegedly required under the federal law. Plaintiffs in this case are three associations representing individual foster parents in the State of California: the California State Foster Parent Association, the California State Care Providers Association, and Legal Advocates for Permanent Parenting (collectively, “Foster Parents“). They brought this suit against officials of the State of California (“the State“) under
The State moved to dismiss on the ground that the CWA does not create rights enforceable under
This case is therefore now in an unusual posture because the merits, in effect, have already been resolved, in part through the parties’ own negotiations and then by another decision of this court. We recently decided California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (“Allenby II“), a similar case brought by institutional providers of foster care. The district court in that case held that the CWA created a right enforceable under
When Allenby I reached this court, however, the State had declined to appeal the issue of whether the CWA created a right enforceable under
The district court viewed these plaintiffs as having an even stronger case on the merits than the institutional providers in Allenby. On summary judgment, the district court found that the State failed to provide evidence that the payments to individual foster care providers were ever based on the CWA‘s itemized list of costs, and that Foster Parents had provided uncontroverted evidence that their rates had “fallen further out of line with the cost of providing the enumerated items than had the institutional rates” addressed in Allenby. The court ordered a remedy that would bring about “substantial compliance” with the federal statute.
We do not address the nature of the remedy here, however, because the parties have resolved their differences as to that issue through mediation. The Foster Parents’ appeal was therefore voluntarily dismissed, and the parties agreed that the State‘s appeal would go forward to address the issue waived in Allenby II: the threshold question of whether the Foster Parents may maintain this action under
We hold that it does. The district court correctly permitted the Foster Parents’ action to go forward because the CWA grants foster care providers a federal statutory right to payments that cover certain enumerated costs, a right redressable under
DISCUSSION
The Child Welfare Act, also known as Title IV-E of the Social Security Act, was adopted in 1980 to enable states to provide foster care and adoption assistance for children in need of such services.
[1] The two principal statutory provisions at issue in this case are
payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child‘s personal incidentals, liability insurance with respect to a child, reasonable travel to the child‘s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.
Foster Parents contend that
[2] We review de novo the district court‘s decision on a motion to dismiss. Fireman‘s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002). The district court, recognizing that this court had not passed on the precise question presented here, relied on our decision in Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004), which found an enforceable right in a highly analogous statutory provision. We agree.
The Supreme Court has repeatedly recognized that a federal statute can create an enforceable right under
permitted by the Public Housing Act); see also Gonzaga, 536 U.S. at 280 (reaffirming Wilder and Wright).
[3] The inquiry into whether a statute creates a right enforceable under
[4] The inquiry begins with the three-part test the Supreme Court established in Blessing. Price, 390 F.3d at 1109 & n.4. Blessing‘s test asks:
(1) whether Congress intended the provision in question to benefit the plaintiff; (2) whether the plaintiff has demonstrated that the asserted right is not so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the provision giving rise to the right is couched in mandatory, rather than precatory, terms.
Id. at 1109 (quoting Blessing, 520 U.S. 329, 340-41 (1997)) (internal quotation marks omitted).
[5] We have held that Blessing‘s first factor calls for evaluating the “provision in question,” and requires that we identify the particular statutory provision at issue. ASW v. Oregon, 424 F.3d 970, 977 (9th Cir. 2005). “We do not look at the Act in its entirety and determine at that level of generality whether it creates individual rights.” Id. As the district court recognized, Foster Parents’ asserted right is for reimbursement of costs, and this statute is almost identical in structure to the one this court recognized as creating an enforceable right in Price.
[6] In Price, we analyzed
whether they created a right enforceable under
The CWA similarly contains a provision creating a right, in
Once we have identified the provision in question, Blessing‘s first factor asks “whether Congress intended [it] to benefit the plaintiff.” Price, 390 F.3d at 1109. For the following reasons, we conclude that Congress intended for
The CWA unambiguously designates foster parents as one of three types of recipients who can receive funds on foster
children‘s behalf. See
The State asks us to follow Gonzaga, where the Supreme Court held that the language of the Family Educational Rights and Privacy Act (“FERPA“) did not create an enforceable right. See 536 U.S. at 276. The State‘s reliance on Gonzaga is misplaced, because the language of FERPA materially differs from that of the CWA.
The relevant FERPA provision states: “No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents to any individual, agency, or organization.” Gonzaga, 536 U.S. at 279 (quoting
tion agency without his consent. Id. at 277. The Supreme Court held that FERPA did not create an enforceable right because the statute‘s focus was not on individual beneficiaries. Id. at 287. The Court emphasized that FERPA spoke in terms of the “person regulated“— educational agencies and institutions— rather than the “individuals protected“— the students and their families. Id. The Court also stressed that the provision had an “aggregate focus” on “institutional policy and practice” rather than focusing on “individual instances” of noncompliance. Id. at 288 (internal quotation marks omitted). Congress did not contemplate terminating funding on the basis of one violation of the privacy standards, but only where an institution had broader policies and practices that violated FERPA. Id. The Court therefore concluded that an individual student‘s situation was not Congress‘s major concern— institutions were.
In contrast,
[7] Also unlike FERPA,
individualized payment determinations). The CWA is clear, however, that the State must make a foster care maintenance payment on each child‘s behalf.
[8] The second Blessing factor asks “whether the plaintiff has demonstrated that the asserted right is not so vague and amorphous that its enforcement would strain judicial competence.” Price, 390 F.3d at 1109. The State argues that the CWA is too vague because it does not specify how rates should be set to cover the enumerated costs, and that no regulations governing the calculation of foster care maintenance payments fill the gap. We disagree. Our precedent strongly suggests, if not compels, the conclusion that the asserted right is sufficiently specific. The itemized list of expenses to be covered under
In Price, the displaced persons were entitled to “reimbursement for actual and reasonable moving expenses, security deposits, credit checks, and other moving-related expenses, including any interim living costs.” Id. Here, the statute contemplates similarly concrete expenditures including “food, clothing, shelter, daily supervision, school supplies, a child‘s personal incidentals, liability insurance with respect to a child, reasonable travel to the child‘s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.” See
We agree with Foster Parents that courts may review the State‘s compliance with a requirement to set rates that cover the costs of the enumerated expenditures. If a statute or applicable federal requirement does not prescribe a particular methodology for calculating costs, we give deference to a reasonable methodology employed by the State. See Wilder, 496 U.S. at 518-19. Though some deference may be owed to the State‘s methodology, the absence of a uniform federal methodology for setting rates “does not render the [statute] unenforceable by a court.” Id. at 519. In Allenby II, we recognized the lack of methodology specified by federal law to measure the costs. 589 F.3d at 1021 (“While the CWA identifies the types of items that must be covered, it does not prescribe any particular metric to measure the cost of those items. Each state develops its own plan.“). Nonetheless, we did not find that such a statutory gap presented any significant obstacles to adjudicating the parties’ dispute, and we required the State to comply with the methodology that the State had itself adopted to implement the CWA. See id. at 1023.
[9] Other courts considering the combined effect of
[10] The third and final Blessing factor requires that “the provision giving rise to the right is couched in mandatory, rather than precatory, terms.” Price, 390 F.3d at 1109. In
Price, this Court concluded that the HCDA‘s similar provision in
[11] There is, moreover, an additional important distinction between this case and Gonzaga that bolsters our conclusion that
[12] For all the above reasons, we hold that
“presumptively enforceable” by
CONCLUSION
The district court correctly held that Foster Parents could maintain their suit under
AFFIRMED and REMANDED.
CALLAHAN, Circuit Judge, concurring:
I concur because I agree that the application to this case of the three-part test set forth by the Supreme Court in Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), is controlled by our opinion in Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004). Were I writing on a blank slate, I would not find that there is the requisite “unambiguously conferred right” for a private action under