UNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant.
No. 00-51177.
United States Court of Appeals, Fifth Circuit.
July 23, 2002.
530
Mark Randolph Stelmach, Asst. U.S. Atty. (argued), Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Louis M. Fischer, U.S. Dpt. of Justice, Criminal Div. App. Sec., Washington, DC, for Plaintiff-Appellee. George McCall Secrest, Jr. (argued), Houston, TX, for Defendant-Appellant.
ON PETITION FOR REHEARING EN BANC
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
Jeneva FRAZAR, Etc., et al., Plaintiffs, Linda Frew, as next friend of her minor child, Carla Frew; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; Mary Fisher, as next friend of her minor child, Tyrone T. Edwards; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza, Plaintiffs-Appellees, v. Don GILBERT, Etc., et al., Don Gilbert, Commissioner of the Texas Health and Human Services Commission in his official capacity; Linda Wertz, Texas State Medicaid Director; Bridgett Cook, employee of Texas Department of Health in official capacity; Susan Penfield, M.D., employee of the Texas Department of Health in official capacity; Eduardo Sanchez, M.D., Texas Commissioner of Health, Defendants-Appellants. Jeneva Frazar, Etc., et al., Plaintiffs, Linda Frew, as next friend of her minor child, Carla Frew; Carla Frew; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; Mary Fisher, as next friend of her minor child, Tyrone T. Edwards; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; Shannon Garcia, as next friend of her minor children, Andrew Garcia, Marisha Garcia, Stephen Sanchez and Allison Sanchez, Plaintiffs-Appellees, v. Richard Ladd, Etc., et al., Linda Wertz, Texas State Medicaid Director; Bridgett Cook, employee of Texas Department of Health in official capacity; Susan Penfield, M.D., employee of the Texas Department of Health in official capacity; Don Gilbert, Texas Commissioner of Health and Human Services; Eduardo Sanchez, M.D., Texas Commissioner of Health, Defendants-Appellants.
Nos. 00-41112, 01-40667.
United States Court of Appeals, Fifth Circuit.
July 24, 2002.
530
REAVLEY, Circuit Judge:
State officials take interlocutory appeals from orders of the district court that refused to modify a prior consent decree and required detailed state action in the administration of the Medicaid program to afford health care to the certified class of indigent children. We vacate the orders because the court has exceeded its jurisdiction.
The court expended great effort in developing a record of unmet medical needs of children in Texas that must be of concern to the people and authorities of the State, as to the district judge. The State did however have a substantial program to meet the medical needs of the class members. The number of State employees and contract workers assigned to that program has increased from about ten in 1993 to almost 500 in 2000. Participation by eligible youth has increased; the “participation ratio,” a measure of the percentage of eligible persons who have received at least one screening service annually, and which must be reported to the Health Care Finance Administration, the federal agency responsible for administering the Medicaid program,1 increased from 18 percent in 1991 to 66 percent in 1998. The utilization of dental services also increased, and the rate now is well above the national average. Texas spends more that any other state on informing and outreach programs. In 1999 it made about 4.8 million outreach contacts to class members (up from about 2 million such contacts in 1995), including about 1.8 million voice-to-voice or face-to-face contacts.
The State now operates a toll-free telephone service for the benefit of class members, and the district court recognized that the State has made striking improvement in the operation of this service.2 The State has a medical transportation program, and from 1993 to 1999 the number of rides increased from about 750,000 trips to 2.5 million trips. The State offered evidence that its Department of Health is not aware of a single eligible person who has requested services and not subsequently received them.
Nevertheless, some children are unable or, for whatever reason, fail to take full advantage of the services. The plaintiffs and district court see the answer to be oversight and enforcement by the court. Aside from the lack of judicial competence to meet this task, we hold that the court lacks jurisdiction to cure the problems or to direct the particular means and methods of this care.
BACKGROUND
This suit began in 1993 when Jeneva Frazar and Linda Frew, suing on behalf of their children, alleged that the State of Texas (the State) and the named state officials (the state defendants) were failing to provide federally mandated Medicaid benefits to the children under the Texas version of the early and periodic screening, diagnostic, and treatment services (EPSDT) program. The Medicaid program provides federal funding for medical services to the poor.3 State participation is voluntary, but once a state joins the
Plaintiffs complained that the Texas EPSDT program, known as the Texas Health Steps program, had failed to provide federally mandated services. They claimed that the EPSDT program did not meet various requirements of
Plaintiffs sought injunctive relief under
The parties proceeded to conduct settlement negotiations, and agreed to a consent decree. The record indicates that this proposed consent decree was reached after the district court ordered the parties to pursue a settlement.7 The district court conducted a fairness hearing on the pro-posed
“A consent decree is akin to a contract yet also functions as an enforceable judicial order.”8 The consent decree in the pending case is a lengthy document and orders the state defendants to implement many highly detailed and specific procedures relating to the EPSDT program.9 It contemplates continuing oversight of the agreement by the district court. It states in paragraph 6 that “the parties agree and the Court orders” the state defendants to implement the changes and procedures to the EPSDT program set out in the decree, and provides in paragraph 303 that if the state defendants fail to comply with the terms and intent of the decree, the plaintiffs “may request relief from this Court.” In paragraphs 306 and 307, the state defendants are required, “[f]or the duration of this Decree,” to submit “monitoring reports” four times a year to the court. The reports must include a chart which identifies “each paragraph of this Decree that obliges Defendants to act and each required action. The chart will further state the status of each activity.” The decree places no limit on its duration.
A. Appeal No. 00-41112
On November 10, 1998, plaintiffs filed a “Motion to Enforce Consent Decree,” alleging that the state defendants had not complied with numerous paragraphs of the consent decree.10 The state defendants
The district court conducted an evidentiary hearing, and, on August 14, 2000, entered a lengthy memorandum opinion. The court held that numerous provisions of the consent decree had been violated and that the consent decree was enforceable. By a separate order entered August 14, 2000, which the court characterized as its initial “order of enforcement,” it directed defendants to mail to the court and opposing counsel, within 60 days, “proposed corrective action plans to remedy each violation of the consent decree detailed in Part One of this court‘s Memorandum Opinion.” The plaintiffs were then given 30 days to respond to defendants’ proposed corrective action plans.
In appeal No. 00-41112, the state defendants appealed the August 14, 2000 order.11 On October 18, 2000, the Fifth Circuit stayed the order during the pendency of this appeal.
B. Appeal No. 01-40667
After the state defendants noticed their appeal in No. 00-41112, plaintiffs filed in the district court a motion for leave to file a supplemental complaint (motion to supplement). The proposed supplemental complaint sought to add claims that dental services to the class were not available “at least to the extent that such care and services are available to the general population in the geographic area” under
The district court granted the motion to supplement. The state defendants then filed a motion to dismiss the supplemental complaint, arguing that the district court had no jurisdiction to grant the motion to supplement because of the pendency of the appeal to the Fifth Circuit. On May 17, 2001, the district court denied the motion to dismiss. In appeal No. 01-40667, the state defendants appeal the order denying the motion to dismiss.
We have consolidated appeal Nos. 00-41112 and 01-40667 for disposition herein.
DISCUSSION
A. Appeal No. 00-41112
In the first appeal, the state defendants essentially make three arguments. They argue that the plaintiffs did not establish violations of federal rights which entitle them to relief under
1. Appellate Jurisdiction
The district court‘s memorandum opinion and the accompanying “order of enforcement” are unusual documents. The district court found that certain provisions of the consent decree had been violated and that these provisions were enforceable, but did not take the next step of specifically ordering enforcement of the consent decree—an order that would amount to affirmative injunctive relief to the plaintiff class—other than directing the defendants to submit corrective action plans.
We nevertheless conclude that we have appellate jurisdiction to review the orders under
The district court held that the consent decree was enforceable under
2. Enforceability of Consent Decree under § 1983 and the Eleventh Amendment
The district court, while often making reference to statutory requirements and the consistency of the consent decree with the Medicaid Act,13 did not consider it necessary to determine whether an alleged violation of the consent decree would constitute, in the absence of the decree, a statutory violation of the Medicaid Act remediable under
While
Proof of a violation of a federal statute, by itself, does not entitle a plaintiff to relief under
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.19
Employing this test, the Court in Blessing held that
In Wilder v. Virginia Hospital Ass‘n, 496 U.S. 498 (1990), the Supreme Court held that the Boren Amendment to the Medicaid Act,22 which required reimbursement according to rates that a state finds “are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities,” was enforceable by health care providers under
In Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000), we applied the Blessing factors and held that one portion of one Medicaid provision created a federal right enforceable by Medicaid recipients, but not Medicaid providers, under
Applying the Blessing factors to the pending case, there is no doubt that under the first factor the Medicaid program generally is intended to benefit qualifying recipients such as members of the plaintiff class. The Medicaid Act is, however, a large and complex statute, and whether plaintiffs seeking to enforce a federal right under the Medicaid Act can meet this requirement depends on which statutory provision or provisions they rely. In Evergreen, we further explained that receipt of an indirect benefit under the statutory provision in issue “is not sufficient to support a claim that [plaintiffs] are its intended beneficiaries.”28
Similarly, moving to the second prong of the Blessing test, while some of the provisions of the Medicaid Act are not so vague and amorphous that enforcement would strain judicial competence, plaintiffs’ claims can succeed only if predicated on those provisions.
Under the third Blessing factor, the Medicaid statute does impose some binding obligations on the states. With respect to the EPSDT program at issue in the pending case,
In addition to the three factors described above, Blessing goes on to state:
Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under
§ 1983 . Because our inquiry focuses on congressional intent, dismissal is proper if Congress specifically foreclosed a remedy under§ 1983 . Congress may do so expressly, by forbidding recourse to§ 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under§ 1983 .30
Under this last part of the Blessing analysis, Congress did not expressly foreclose resort to
The district court‘s authority to enforce the consent decree is further limited by the Eleventh Amendment. This suit was brought against state officials in their official capacities, seeking injunctive relief under
A fundamental rule of federal jurisdiction, of which the Eleventh Amendment is an exemplification, is that the judicial power of the federal courts granted by the Constitution does not extend to suits by private parties against the states.36 In order to accommodate both the supremacy of federal law and the Eleventh Amendment, Ex Parte Young allows a private suit against state officials to enjoin state conduct that violates federal law.37 “[T]he Young doctrine rests on the need to promote the vindication of federal rights.”38 It “has not been provided an expansive interpretation.”39
We addressed the enforceability of a consent decree in the face of Eleventh Amendment immunity in Lelsz v. Kavanagh.40 In that case the state defendants appealed a district court order purporting to enforce a consent decree by ordering the State to furlough a certain number of mentally ill patients in the State‘s care.41 We stated that the relief ordered, “in effect, requires state officials to comply with state law.”42 We held that the district court was without jurisdiction to enforce the consent decree.43
addressed the entry of a consent decree and held that the parties’ agreement could result in a decree whose terms would exceed the court‘s remedial authority under a governing statute. It does not enlarge the court‘s latitude to issue its own, different order enforcing or modifying the decree, for in that case we presume the court must fall back on its inherent jurisdiction. . . .
. . . .
[T]he right/remedy distinction urged by appellees inevitably collides with the principles of federalism and comity which animate the Eleventh Amendment. . . . Therefore, the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights. If a federal court remedy unfounded in federal law intrudes into the governance of matters otherwise presided over by the states, no federal right has been vindicated.47
In Saahir v. Estelle,48 we also addressed the enforceability of a consent decree. In that case, the district court had entered a consent decree approving a settlement between the plaintiff inmate and the state defendants which allowed the plaintiff to order tapes.49 The plaintiff filed a motion for contempt when some of his tapes were confiscated.50 We recognized that in Lelsz we had held “that the district court lacked jurisdiction to enforce a consent decree against the State to the extent that the relief ordered in the decree was based on state law . . . because the only legitimate basis for federal court intervention consistent with the Eleventh Amendment was the vindication of federal rights.”51 We held that enforcing the consent decree to allow the plaintiff to keep non-religious tapes was not required under state law, and further held that
enforcing the provision would not be required by any federal or constitutional law, as we fail to discern any First Amendment protections except as to the religious tapes. Because “the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights,” Lelsz, 807 F.2d at 1252, the federal courts have no jurisdiction to enforce the provision as it relates to the non-religious tapes.52
Underlying our reasoning in Lelsz and Saahir is the jurisdictional nature of the Eleventh Amendment. Eleventh Amendment immunity is in “the nature of
We recognized in Lelsz56 and Saahir57 that a federal court “must fall back on its inherent jurisdiction” when it issues an order enforcing a consent decree. For our purposes, the essential holding of Lelsz and Saahir is that a consent decree like the one entered by the district court is not enforceable against the State or its officials except to vindicate a federal right granted in the federal Constitution or a federal statute, since “the consent decree does not enlarge the courts’ jurisdiction.”58 Blessing sets out the factors used in deciding whether a statutory violation amounts to a violation of a “federal right” actionable under
The district court held that “the Firefighters test will be applied to the decree provisions sought to be enforced by plaintiffs.”59 In Firefighters the Supreme Court upheld a consent decree that, according to the petitioner, granted relief that was unavailable under the statute in issue. The Court, without reaching the issue of statutory construction, concluded that “a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial.”60 In the pending case, the district court, under its interpretation of the ”Firefighters test,” erroneously held that
to sustain federal court jurisdiction to approve a consent decree against state officials, the remedies in the decree must only serve to: 1) resolve a dispute within the court‘s subject matter jurisdiction, 2) come within the general scope of the case made by the pleadings, and 3) further the objectives of the law upon which the complaint was based.61
Although the district court engaged at some length in a generalized discussion of the Blessing factors,62 it is clear to us that the district court did not conduct a particularized Blessing analysis as to each alleged violation of the consent decree. For example, rather than deciding whether a statutory violation took place and applying the Blessing factors, the court, in concluding that the training provisions of the consent decree were enforceable, agreed with the state defendants that training “is not a requirement of federal law.”63 It nevertheless found under the ”Firefighters test” that the training provisions “served to resolve this dispute, and they come within the general scope of the case made by the pleadings,” and that training “clearly furthers the objectives of the EPSDT stat
Firefighters is a consent decree case but is not an Eleventh Amendment case,67 and does not therefore address the deference federal courts must show for the Eleventh Amendment when called upon to enjoin state officials under Ex Parte Young. “Eleventh Amendment immunity represents a real limitation on a federal court‘s federal-question jurisdiction.”68 Moreover, we expressly distinguished Firefighters in both Lelsz and Saahir, reasoning that (1) Firefighters does not help the plaintiff if the district court lacks jurisdiction as a result of the Eleventh Amendment, and (2) even if a federal court is not necessarily barred from entering a consent decree providing broader relief than it could have awarded at trial, it must fall back on its own jurisdiction when it issues an order enforcing the decree.69 The Eleventh Amendment limits that jurisdiction to the enforcement of federal rights.
Plaintiffs argue that Lelsz should be limited to a consent decree based only on state law. The district court, likewise, would limit Lelsz to suits to enforce only state law claims, and “declined” to apply it.70 We do not read Lelsz so narrowly, and in any event Saahir cannot be read as limited to state-law-based consent decrees. Insofar as the district court noted authority that found the distinction we drew in Lelsz and Saahir between jurisdiction to enter and jurisdiction to enforce a consent decree “utterly indefensible” or “untenable,”71 the district court, and we, are bound by the law of our circuit.
Before the district court can remedy a violation of a provision of the consent decree, plaintiffs must demonstrate that any such consent decree violation is also a violation of a federal right, by showing (1) a statutory violation of a specific provision of the Medicaid Act, (2) which was intended to benefit plaintiffs, (3) which is not so vague and amorphous that its enforcement would strain judicial competence, and (4) which imposes a binding obligation on the states. Lest the court run afoul of Blessing, it must not paint “with too broad a brush”72 by failing to “separate out the particular rights it believe[s] arise from the statutory scheme.”73 The Blessing criteria can only be properly applied when
3. Relief Available to Plaintiffs
a. Whether a Federal Court Can Set EPSDT Performance and Participation Standards
As discussed above, plaintiffs are only entitled to injunctive relief if they can show a violation of specific statutory provision that is actionable under
We reach this conclusion based on our understanding of congressional intent. Our goal, of course, in construing a statute is to give effect to congressional intent, and we begin this task by looking to the language of the statute itself.75
In the pending case, the district court did not direct that particular individuals receive EPSDT services to which they were entitled under federal law. It has instead taken upon itself the task of reworking the procedures and mechanisms whereby EPSDT services are provided to the totality of eligible participants. The court has become overseer of the State‘s Medicaid plan. As such, the court assumes the role of assuring that the State‘s plan meets federal mandates, which in turn raises the issue of whether the plan must always, unfailingly, provide the EPSDT services described in the Medicaid Act. We think that is not required.
Congress did not intend that a court can require that a state participating in the Medicaid program must always provide every EPSDT service to every eligible person at all times. Perfect compliance with such a complex set of requirements is practically impossible, and we will not infer congressional intent that a state achieve the impossible. Furthermore, looking to
The Secretary shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each State for participation of individuals who are covered under the State plan under this subchapter in early and periodic screening, diagnostic, and treatment services.
In
In our view, Congress has therefore spoken to the success expected of a state plan: it should meet EPSDT participation goals
Moreover, we believe that plaintiffs cannot sue under
[T]he requirement that a State operate its child support program in “substantial compliance” with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. 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 (such as enforcement of support obligations) in only 75 percent of the cases reviewed during the federal audit period.
45 C.F.R. § 305.20(a)(3)(iii) (1995). 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.42 U.S.C. § 652(g) . 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.76
An analogous situation is presented here. The statute authorizes the Secretary to set certain participation goals, and to cut off federal funding if “there is a failure to substantially comply” with statutory provisions.77 Under Blessing, a state‘s failure to meet such a participation goal or other systemwide performance standard does not give rise to individual rights actionable under
We now proceed to decide whether consent decree violations found by the district court amount to a statutory violation of the EPSDT provisions actionable under
Rather than focusing on the statutory requirements, the court focused on the consent decree requirements and proceeded to find numerous consent decree violations. These consent decree provisions impose standards and requirements on the State which are not required by the Medicaid statute.
Looking to statutory EPSDT provisions, the requirement of subpart 43(B) that a state plan provide screening services is limited to the provision of services “where they are requested.” We agree with the state defendants that a statutory violation of this requirement cannot occur except in cases where eligible persons request screening services. The district court recognized that the evidence did not support a finding that screening services were ever denied after they were so requested, noting that “[s]everal witnesses testified that defendants are not aware of a single class member who has requested services and not subsequently received those services.”79
Whether the state plan has met performance goals set by the Secretary is unclear from the record. Regardless of the terms of the consent decree, the district court cannot impose higher performance standards than those set by the Secretary, and cannot under
The district court first found violations of consent decree provisions relating to outreach, including provisions that the State “effectively” inform the class about EPSDT services and conduct outreach efforts to encourage use of these services.80 The Medicaid Act EPSDT provisions, at subpart 43(A), only require a state plan providing for “informing all [eligible persons] of the availability of [EPSDT] services.” It does not expressly require “effective” conveyance of information, and does not require outreach programs that extend beyond an effort at informing eligible persons of available EPSDT services. As explained above, we read the Act to limit the success required from such efforts to meeting performance standards set by the Secretary. The district court did not find that any such standards were violated, and in any event lacks the power to impose systemwide standards under
The court next considered whether the State had violated consent decree provisions concerning medical and dental checkups.82 Insofar as the court concluded that insufficient numbers of Medicaid re-cipients
The district court also held that, with respect to checkups, the State had failed to report certain data as required by ¶¶ 212 and 284 of the consent decree, which require the state defendants to report the number and percent of recipients who receive all their scheduled medical and dental checkups. The Medicaid Act‘s EPSDT provision does not require states to provide this data. Certain other data must be reported under
The district court also discussed, with respect to dental checkups, evidence of a shortage of dentists. However, Blessing makes clear that staffing mandates, even where such mandates have a statutory basis, are not enforceable under
The district court next found that the State had violated provisions of the consent decree concerning corrective action plans.85 The consent decree has provisions requiring the State to report participation by class members in medical and dental checkups by county or cluster of counties, and to develop corrective action plans for “lagging” counties with relatively low participation rates. The Medicaid Act does not impose such reporting requirements and corrective action plans, and for the reasons discussed above, such reporting and systemwide corrective action mandates, even if found in the statute, would not give rise to individuals rights enforceable under
The court next turned to alleged violations of consent decree provisions concerning the receipt of EPSDT services through managed care providers.86 Without belaboring the complex facts presented concerning these provisions, the court discussed evidence that the State‘s data was flawed, that participation rates for class members in managed care was lower than the rates for other class members, and that the level of care for managed care class members was inadequate. The court did not find a specific violation of a statutory managed care requirement, assuming that one exists. We agree with the state defendants that there is no basis in federal law for heightened or additional benefits to class members receiving care through managed care providers. As discussed above, the State‘s failure if any to provide reports or data under the consent decree
The court separately found violations of a consent decree provision concerning accelerated managed care services to migrant farm workers. Again, the court did not rely on a statutory provision of the Medicaid Act requiring such special services. The court also found a violation of ¶ 194 of the consent decree, requiring “appropriate training” of health care providers in the managed care system. Such training is not mandated by statute, as the district court noted,87 and is no more actionable under
The district court next considered toll-free line requirements set out in ¶ 247 of the consent decree,88 and found that the State had violated requirements that recipients receive “prompt service” from an operator who is “knowledgeable, helpful, and polite.” As the district court acknowledged, “no such lines are required by federal law or regulation.”89 Even if there were such statutory requirements, a toll-free line system would be akin to the data processing system which the Court in Blessing held did not give rise to individualized rights actionable under
The district court next turned to consent decree provisions relating to case workers who assist class members in arranging for the treatment they need.90 The court did not find a statutory violation actionable under
In short, so far as we can tell from this record, plaintiffs have not established any violations of the EPSDT provisions of the Medicaid statute which are actionable under
4. Other Issues
a. Waiver of Sovereign Immunity
After they filed their appellees’ brief, plaintiffs filed two
Instead, we hold that under well-established law for determining a waiver of Eleventh Amendment immunity, the State did not do so in this case. “The Supreme Court has made it clear that we may find a waiver of a state‘s Eleventh Amendment immunity in only the most exacting circumstances.”97 The states‘s consent to suit must be “unequivocally expressed.”98
The State has not unequivocally waived its Eleventh Amendment immunity. The consent decree expressly states in paragraph 301 that “Defendants do not concede liability.” The state defendants repeatedly raised in the district court an Eleventh Amendment defense to the enforcement of the decree, contending that the entry of the consent decree did not expand the district court‘s jurisdiction, and that a violation of the consent decree, by itself, was “of no consequence.” It made numerous other statements to the district court in pleadings and in open court indicating that it did not intend to waive its Eleventh Amendment immunity, arguing for example that “[i]f the court determines that no federal right has been violated it lacks jurisdiction to impose a remedy even
A critical distinction between the pending case and the cases cited in the Rule 28(j) letters—Watson and Lapides—is that in those cases the state voluntarily chose to submit itself to the jurisdiction of the federal court. In Watson, the State of Texas elected to bring its tobacco action in federal court. In Lapides, the state defendants removed the case to federal court.100 These cases and others establish that a state can waive its Eleventh Amendment immunity by voluntarily invoking the federal court‘s jurisdiction,101 but in the pending case the State did not do so; the state officials were sued as defendants. The State has not waived its Eleventh Amendment immunity.
b. Westside Mothers
The state defendants argue in their reply brief that we should accept arguments embraced by a district court in Westside Mothers v. Haveman.102 That case concerned a challenge to Michigan‘s EPSDT program. The district court held that the Medicaid statute, as legislation enacted pursuant to the Spending Clause,103 was not the supreme law of the land under the Supremacy Clause104 and therefore the Ex Parte Young exception
Suffice it to say that we decline to follow this ruling. We have not recognized a “Spending Clause exception to the Ex Parte Young exception” to the Eleventh Amendment. The district court‘s decision in Westside Mothers on this issue has now been reversed by the Sixth Circuit,106 which noted that the Spending Clause analysis of the district court was inconsistent with a number of Supreme Court cases.107 We agree with the Sixth Circuit that “laws validly passed by Congress under its spending powers are supreme law of the land.”108 For purposes of the Supremacy Clause and Ex Parte Young, the mandates set out in Medicaid statute are more than contractual; they are federal law.
The district court in Westside Mothers concluded that the Ex Parte Young excep-tion to Eleventh Amendment immunity was unavailable for several reasons besides the Spending Clause rationale. These reasons were also rejected on appeal, and we likewise find none of them persuasive.109
B. Appeal No. 01-40667
While we have jurisdiction over the appeal because of the Eleventh Amendment issue, which is an issue that can be raised at any point because it is jurisdictional, there is no need to say more about the limits of the district court‘s jurisdiction. Plaintiffs are objecting to the shortage of transportation for class members to obtain dental services and to the rates of payment set by the Texas Legislature. Unless plaintiffs can prove that the right to dental services is being denied by the defendants, the court cannot act. We therefore vacate the order addressing the motion to dismiss.
CONCLUSION
The orders of the district court in both appeals are VACATED and the case is REMANDED for whatever proceedings that may be consistent with this opinion.
Notes
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases,
(B) providing or arranging for the provision of such screening services in all cases where they are requested,
(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and
(D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year:
(i) the number of children provided child health screening services,
(ii) the number of children referred for corrective treatment (the need for which is disclosed by such child health screening services),
(iii) the number of children receiving dental services, and
(iv) the State‘s results in attaining the participation goals set for the State under section 1396d(r) of this title.
“Early and periodic screening, diagnostic, and treatment services” referenced in the above statutory provision is defined in
- implement properly the outreach program and deliver required outreach reports;
- assure that all class members receive medical and dental checkups;
- develop and implement annual corrective action plans both for counties that lag behind the statewide average for checkups and for the state‘s medical transportation system;
- operate the state‘s managed care system consistently with the mandates of the decree;
- operate toll-free numbers so as to ensure that all calls are answered promptly by a knowledgeable and helpful staff member;
- provide case management to all class members who need it, statewide;
- develop methods to study each agreed health outcome measure; and
- provide EPSDT training for health care providers.