Harris v. James

concerned, appearances of the terms count as well as only to a modification amounts sentence, Koonce, reality.” original United the defendant’s States (11th Cir.1993). punishment for the revo further does not constitute We offense, Jeopar the Double cation-triggering possession appears reasoned that of what subsequent not violated dy gun during robbery play Clause is be a an can inte- denied, offense.”), cert. prosecution for gral part in the commission of the crime and — -, evidences, victim, U.S. in the mind of the an abili- (1997); United States v. Woodr Shores, L.Ed.2d 486 ty weapon. to use United States v. (4th Cir.) (“[T]he Dou wp, (11th Cir.1992). 86 F.3d We Jeopardy prohibit not ble Clause does respect conclude with to the facts of this case criminally prosecuting and government from discretionary that the court acted within its punishing offense has formed the an authority imposing applicable sentence supervised basis for revocation of a term percep- on enhancement based the victim’s denied, -, release.”), cert. gun possessed during tion that a was (1996); 332, 136 L.Ed.2d 245 United robbery. commission of the (“[P]un Soto-Olivas, 44 F.3d at 791 States AFFIRM. We super imposed upon revocation of ishment punishment original for release is vised

crime, lead punishment not conduct revocation”). similarly

ing We conclude part probation constitutes

that revocation original sentence does

of a defendant’s subsequent prosecution for the preclude proba gave criminal conduct that rise HARRIS, individually Mae and on Willie Accordingly, convic tion revocation. Woods’ similarly situated; behalf of all others robbery not violate the Double tion for does Patton, individually Linda and on behalf Jeopardy Clause. similarly situated; all others Taenika briefly conclude that the district Patton, We individually and all on behalf of clearly enhancing err in Woods’ court did similarly situated; Patton, others John 2B3.1(b)(2)(E) U.S.S.G. individually sentence under all and on behalf of others brandishing, displaying, possessing or a dan similarly situated; Tommy Gordon, indi weapon. government gerous concedes vidually and behalf of all others simi proof gun that conclusive of a was never larly situated; J., individually Bertha court, but notes that the produced similarly before all and on behalf of others object placed in reported having victim Plaintiffs-Appellees, situated, robbery perceiving during her side object weapon. objecting to be a Governor; Toney, JAMES, David Fob enhancement in the recommended sentence the Alabama Medicaid Commissioner of Report, deny the Presentence Woods did not Agency, Defendants-Appellants. argued that the victim’s account but identified, weapon neither nor was seen No. 95-6861. dangerous weap not be classified as a could Appeals, United States Court on. Eleventh Circuit. Sentencing that we Guidelines direct objects “appeared” to be are to treat Nov. they dangerous weapons as such Id., brandished, displayed, possessed. comment, (n. 2). previously have ob- We weapons dangerous that “insofar as

served supervised probation and re- the conditions of substantive distinction between revocation probation supervised functionally equivalent.”). release. See U.S.S.G. [are] lease intro, B, ("[Violations of Ch. Pt. comment. Barnett, Jr., Henry Clay Herman H. Ham- ilton, Jr., Torbert, III, Clay Clement James McLemore, Howard, Capell, H. Knabe & Cross, P.A., AL, Montgomery, James H. Ev- ans, Sessions, AL, Montgomery, Jeff Charles Durham, III, Agency, H. Alabama Medicaid AL, Montgomery, Defendants-Appel- for lants. Cohen, Bowden,

J. Richard Ellen Southern Center, AL, Poverty Montgomery, Law Law- Gardella, Corp. Legal rence F. Services AL, AL, Montgomery, Plaintiffs-Appel- lees. HHS, Aibel, Dept, Washing-

Daniel ton, DC, for Amicus. ANDERSON, Judge,

Before Circuit KRAVITCH, FAY and Senior Circuit Judges.

ANDERSON, Judge: Circuit ease, plaintiffs-appellees In the instant brought a class action under 1983, alleging that Alabama’s Medicaid compliance was not in plans requiring Medicaid recipi- necessary ensure providers. The district to and from ents summary judgment granted court (a) agency will Specify that the Medicaid approved a remedial later plaintiffs and necessary transportation for re- ensure appeal, parties. by the On agreed to cipients providers; and to and from (hereinafter to as “the referred officials (b) agency Describe the methods that the State”) regulation does not argue requirement. will use to meet this action. below, accept 431.53. The defendants moved the offi- C.F.R. For the reasons or, alternatively, stay for a for dismissal judgment argument cials’ and reverse legislative re- pending “administrative and court. district and action.” a memorandum order view motion, denying the district court de- I. AND BACKGROUND FACTS arguments scribed the raised the defen- dants’ brief: Here, only the facts relevant to we set out important [arguments] of these The most appeal. particular, the instant specific that no is Defendants’ contention challenge not the State does district transportation non-emergency benefits plan that the was not court’s conclusion They argue statute. mandated federal regulation, we compliance with the do require the statute itself does underlying the lower court’s detail the facts transportation, regulation so that re- finding noncompliance.1 transportation beyond ferring goes Therefore, Defen- congressional mandate. by revisiting previous begin We our de- contend, regulation does not cre- dants scription program. of the Medicaid In Silver ate a which is enforceable under (11th Cir.1986), Baggiano, They argue although § further that 1983. we wrote: implement regulations the Medicaid cooperative a venture of the Medicaid is recognize the for trans- the statute need governments. A state state and federal portation, spell fail those out participate in which chooses to Medicaid any specific parameters requirements plan funding regarding transportation. submits a state Defendants that the issue left non- needy contend has been medical services for the which is may that each state so best deal approved by government. the federal Consequent- with this issue as it sees fit. government then subsidizes a cer- federal ly, argue that Plaintiffs have Defendants portion obligations tain of the financial a not asserted valid cause of action under agreed to bear. A which the state has § U.S.C. participating state in Medicaid must com- (M.D.Ala.1995). F.Supp. In a statute, applicable XIX ply with the Title opinion, thorough the district court reviewed Security Act of as the Social rejected the relevant case law and the defen- amended, seq., § 42 U.S.C. et and the arguments. dants’ Id. at 1514-22. After the applicable regulations. summary granted judgment court district Id. at 1215. plaintiffs, F.Supp. favor of the (M.D.Ala.1995), in- the defendants filed the 2, 1994, plaintiffs On November filed appeal. stant 1983, arguing suit that the under U.S.C. State’s failed to ensure non- Medicaid II. ISSUE emergency transportation required by fed- presented The narrow issue for decision plaintiffs Specifically, eral law. relied on today recipients a is whether Medicaid have provides: which transportation which be A in an action must— enforced 1983.2 carefully, ing we 1. Those facts are set out in the district court’s reviewed the briefs conclude James, published opinion. F.Supp. Harris v. argue while it is true that the State chose to (M.D.Ala.1995). point primarily by challenging validity adequately regulation, did the initial brief argue that the State in its initial brief Plaintiffs question regarding the broad raise preserved only argument right” "federal is not valid of the statute. Hav- imposing ceiling federal statute III. DISCUSSION rent implementing regulations, the statute’s reviewing Supreme begin by We required public housing authorities to include un- governing law whether and Court’s case utility a reasonable allowance in tenants’ violations of federal der what circumstances rent. In answer to the defendant’s claim under 42 create a cause of action statutes that neither the statute nor the Then, apply that case 1983.3 gave the tenants an enforceable within today. us law to the case before meaning the Court wrote suc- cinctly: Supreme A. The Court’s Case Law perceive We little substance this claim. rejected Supreme The Brooke Amendment could not be cause of

argument 1983 creates a clearer: as further amended ten- action for constitutional violations and charged ants be could as rent no more and equal for the violation of civil percent no less than 30 of their income. laws; protection the Court held that mandatory This focusing was limitation encompasses “purely claims based on family on the individual and its income. statutory” violations of federal law. Maine The intent to benefit tenants is undeniable. Thiboutot, 1, 100 any question Nor is there HUD inter- By L.Ed.2d 555 regulations, im in effect when this suit recognized had two limitations to the began, expressly required that a “reason- § to proposition broad that 1983 is available able” amount for utilities be included in enforce violations of federal statutes PHA charge, rent that a was allowed to an agents Wright the state. v. Roanoke of interpretation to which HUD has adhered Auth., Redevelopment Hous. 479 U.S. & adoption both and after the before of the (1987) 423,107 766, 770, 93 L.Ed.2d 781 S.Ct. Thiboutot). Brooke Amendment. HUD’s is enti- view (citing subsequent decisions tled deference as valid First, § plaintiffs cannot sue under 1983 for statute, of the course of a statute where “Con- violations amending provision has disa- gress has foreclosed such enforcement of the greed with it. Second, statute in the enactment itself.” Id. § speaks “rights, in terms of Respondent nevertheless asserts immunities,” merely privileges, or viola- provision for a “reasonable” allowance law, only rights” tions of federal “federal are vague amorphous utilities too § enforceable under 1983. Id. Because our “right” confer on tenants an enforceable resolution of the instant case turns on the meaning § within 1983 and i.e., of the two second “fed- limitations — utility whole matter of must be allowances issue, rights” por- eral we do not detail the PHA, subject left to the discretion of the dealing tions of the Court decisions supervision by regulations, HUD. The

with the first limitation.4 however, defining statutory concept of utilities, including Wright, In claimed that the “rent” as have the force ..., guide- housing authority they specifically of law set out defendant had overbilled utilities thus lines that the PHAs were to follow them for and had violated deprivation any jurisdiction § 1983. We note also that the thereof to the right" presented rights, privileges, “federal issue was ruled or immunities secured court, appeal, laws, the district and on both shall be liable to the Constitution parties given opportunity an additional law, party injured any action at suit in requested by in letter address the issue briefs proper proceeding equity, for redress. or other panel. reader that Wilderv. 4.We note for the interested provides part: 3.42 U.S.C. 1983 in relevant Ass’n, 498, 520-23, Virginia Hosp. U.S. statute, who, Every person ordinance, any under color of 2510, 2523-25, (1990), L.Ed.2d 455 S.Ct. custom, regulation, usage, any or "Congress rejected argument fore- an Columbia, Territory Stale or or the District of the Medicaid Act under closed enforcement of subjects, subjected, any citizen or causes to be § 1983.” person of the United States or other within the allowances, they prevents governmental interfer- utility scheme establishing collective-bargaining process opportuni- ence with the tenants and require notice to [petitioner] rights gives In and that the NLRA proposed allowances. ty to comment on view, against governmental interfer- Congress intended the benefits our Id. at sufficiently specif- ence in an action under 1983.” to confer tenants argument at 450. As for the of the qualify as enforceable ic and definite cause of action courts below that no rights [Pennhurst under Pennhurst Halderman, government interference Hosp. could he because School & (1981) weapons” use of “economic did not L.Ed.2d 694 ] 101 S.Ct. statute, not, respondent constitute “direct violation” rights that are beyond competence of the the Court wrote: suggests, judiciary to enforce. held, language, based on the We NLRA, structure, (footnotes history at 773-75 protects rights omitted).5 the Act certain of labor and management against governmental inter- Corp. City Transit Golden State ference. While it is true that the rule of 444, 107 Angeles, 110 S.Ct. Los 493 U.S. case is not set forth in the the Machinists the Court considered specific text of an enumerated section of company in petitioner, whether the a cab NLRA, might well also be said dispute, volved could sue under .labor respect number of or 1983 to vindicate violations the rule implicit in obligations that we have found Lodge International law announced A of law language. statute’s rule that is Aerospace Machinists and Workers Ass’n of product judicial interpretation of a Com’n, Employment Relations Wisconsin vague, ambiguous, incomplete 2548, 49 L.Ed.2d 396 binding is no less than a rule that (1976). Machinists, the Court had “reit plain meaning is based on the of a statute. give parties Congress erated that intended to right of a that has violation collective-bargaining agreement to a implicit in been found to be a statute’s weapons,’ right to make use of ‘economic language structure is as much a “di- Act, explicitly govern in set forth free right rect violation” of a as is the violation Transit, ment interference.” State Golden clearly of a forth in that is set 110-11, In at 110 S.Ct. at 451. U.S. text of the statute. Transit, petitioners brought Golden State 111-12, seeking monetary damages According at at suit under Id. 110 S.Ct. 451. Court, Court, city being which the in an “the interest in free of for interference case, ‘peaceful governmental earlier had violated federal law of the held Having putting pressure upon that economic under Machinists. noted there methods another,’ question” right specifically no that the one ... is a con- was “substantial hold ing previous employers employees by “within case was ferred enforce,” judiciary at competence (quoting the NLRA.” Id. at 110 S.Ct. Machinists, petitioner at at Court concluded that the U.S. S.Ct. 2560).6 beneficiary of a was “the intended 432-41, dissent, O'Connor, joined by Id. at 107 S.Ct. at 775-80. we dis-

5. In Justice Chief As Scalia, Rehnquist below, Powell expressed strong Justice and Justices cuss dissenters also argued that no federal enforce- there was they regarding that reservations the issue as- argued able under 1983. The dissenters that arguendo i.e., regulations alone sumed Amendment, language neither the of the Brooke 437-38, rights. at could create federal Id. legislative history, nor its nor S.Ct. at 777-78. supported HUD the conclusion to create an entitlement to reasonable intended Kennedy, joined by Chief Justice Rehn- 6. Justice that, assuming even utilities and O'Connor, dissented, quist arguing and Justice rights, alone create federal could upon pre-emption that Machinists "rests al- capable simply at issue were not en- power than individual location of rather they provided forcement because neither a basis rights, privileges, or immunities.” Id. at calculating for an individual tenant's rent nor provided remedy for a in the event of violation. 110 S.Ct. Ass’n, Virginia Hosp. prong, As to the first the Court Wilder concluded the amendment was 110 L.Ed.2d intended benefit plaintiff support the test that class. of its conclu the Court summarized sion, the Court relied on the developed for fact that previous “[t]he had deter- decisions system establishes a for question cre- reimburse mining whether the statute providers phrased ment of in terms right” enforceable under ates a “federal benefitting providers....” health care According to the Court: 510, 110 S.Ct. at 2517-18. pro- inquiry turns on whether the Such Turning question to the was to benefit intend[ed] vision imposed a “binding obligation” amendment so, provi- putative plaintiff____ If States, on the the Court looked first to the sion creates an enforceable unless it language of the statute and noted: merely congressional preference reflects The Boren Amendment is cast mandato- kind of conduct rather than a for certain ry precatory rather than terms: The state binding obligation governmental on the “provide unit, payment “must” ... plaintiff ... or unless the interest hospitals]” according to rates the State vague amorphous such asserts is too finds adequate.... are reasonable and beyond competence it is Moreover, provision of federal funds is ex- judiciary to enforce. pressly compliance conditioned on with the (citations Id. at at 2517 Secretary amendment and the is autho- omitted). quotations ap- The Court internal noncompliance rized to withhold funds for (“the test”7) plied three-prong this test provision. with this following pro- Plaintiff care facts. health (emphasis Id. at brought a 1983 suit to enforce an viders Then, original). the Court addressed the requiring to the Medicaid Act amendment argument only binding defendants’ plans to State obligation procedural essentially was an one: provide payment ... ... of [services] reimbursement, provide the State must some (determined through ... the use of rates reasonable, must itself find its rates are in accordance methods standards satisfactory and must make assurances to the ) developed by the ... the Secretary. rejected interpre- The Court finds, and makes assurances satisfac- tation, refusing require- to make the federal tory Secretary, are reasonable and ment a “dead letter”: “It make little would adequate to meet the costs which must be require a to sense for to State by efficiently economically incurred findings requiring .make without those find- operated facilities.... addition, ings to correct. In there would be 502-03, (quoting Id. at 110 S.Ct. at 2514 require be no reason to a State to submit 1396a(a)(13)(A)). According to the Secretary if the statute assurances did plaintiffs, the reimbursement formula findings used require the State’s to be review- Virginia of Secretary.” the Commonwealth did Id. able some manner generate rates that were “reasonable and at 110 S.Ct. at 2520. The Court found adequate” support defined the statute. The as further its conclusion rights in the argued defendants did not Amendment created enforceable Secretary reject have an enforceable federal to reason- fact that the was entitled to as- adequate Applying upon concluding able and reimbursement. that the State’s test, compliance unsatisfactory: three-prong the Court determined surances of Secretary reject “If to a state the amendment did indeed create an is entitled adequate plan upon concluding that a assur- to reasonable and State’s compliance unsatisfactory, ... a rates. ances of provision plaintiff; Although intended to benefit the Court has sometimes is the order, (2) provision impose binding "prongs” obli- referred to these in a different does the unit; (3) Freestone, - U.S. -, -, Blessing gation governmental is the inter- see 1353, 1359, vague amorphous” S.Ct. en- 137 L.Ed.2d 569 est "too (1) will refer to them in the order set out above: forcement? was a adopt any At issue Suter it cannot notice that State is on Adoption Assistance and Child Welfare it chooses and rates participating a mere formali- to sub- ‘findings’ required is not Act that States that it make that, reviewed the ty.” Finally, “provides the Court in each plan9 Id. mit a (A) Amendment and history case, legislative efforts will be made reasonable require- that “the that it showed placement determined in foster prior to the child prescribe ‘assurances’ ‘findings’ care, ments or eliminate the need for prevent and the Secre- respective (B) roles of State home, from his removal of the child not, suggest, elimi- petitioners tary and do possible make it for the child to return adopt reasonable obligation nate State’s Id. at 112 S.Ct. at 1364 his home.” 110 S.Ct. at Id. at rates.” 671(a)(15)). (quoting 42 U.S.C. The Court 2520-22. inquiry by began its discussion decisions,

Finally, noting looked to the reviewing the Court its earlier vague obligation pains was “too opinions whether the in those cases “took judicially detail, ambiguous” to be enforceable. analyze statutory provisions in not, both that it was noting Court concluded legislative Id. light of the entire enactment.” accompanying regula- the statute and 357, 112 at 1367. The Court also at S.Ct. a State was to tions set out factors which regarding an earlier statement revisited adopting consider in its rates and present special concerns 1983 suits objective benchmark of provided requirements brought to enforce the of Con- fa- “efficiently economically operated passed pursuant gressional acts cility.” at 2522-23. The Id. S.Ct. Spending Clause: Court wrote: legitimacy Congress’ power legis- range reasonable While there be a spending power ... late under the rests on rates, certainly out- there are some rates voluntarily whether the State and know- no could ever range side that ingly accepts the terms of the “contract.” adequate under find to be reasonable and course, can, accep- knowing There be no Although knowledge of the the Act. some tance if a is unaware of the condi- required to hospital industry might be tions or' is unable to ascertain what findings respect evaluate a State’s expected Accordingly, Congress it. rates, of its such an the reasonableness impose grant intends to a condition on the inquiry competence is well within the moneys, unambigu- of federal it must do so Judiciary. ously. 519-20, 110 at 2523.8 S.Ct. (quoting Penn- Id. at the Court decided Suter Artist Halderman, M., 1360, 118 347, 112 Hosp. hurst State Sch. and very Rehnquist, joined by plain limitation on that lan- 8. Chief Justice Justices own O’Connor, Scalia, Kennedy, dissented. guage”: response majority’s argument that the stat- to the step requires cer- The first the States to make rights health care ute conferred substantive on findings. step The second and tain argued providers, the dissenters requires the States to make certain assurances 1396a(a)(13)(A) § light placement In Secretary Secretary to the and the the —not statute, ... within the structure of the one review Under the courts—to those assurances. reasonably would conclude most § law, respondent arguably logic of our case 1396a(a)(13)(A) is addressed to the States require bring § be a 1983 action to rates merely many establishes one of conditions process. according set funds; receiving the text for federal Medicaid 527-28, at 110 S.Ct. at 2527. rights does not confer substantive on Med- providers. evi- icaid services This structural Act, Adoption 9. Like the Medicaid the Assistance the dence is buttressed the absence in stat- Act a federal reim- and Child Welfare establishes any express providers ute "focus” on as a expenses program for certain in- bursement beneficiaiy provision. class of the participate curred the States. In order to at Id. at 2526-27. The dissenters reimbursement, program and receive say went on to if one were to assume "[e]ven Secretary plan must a to the States submit a [the statute] that the terms of confer substan- approval. right providers places for tive ... the statute Health and Human Services on 1531, 1540, home, 67 her S.Ct. or return the child to his or her (1981)10). 359-60, home from foster care. L.Ed.2d 694 Id. at at S.Ct. 1368. To find no it, question in before The the ease said not, according “reasonable efforts” did Court, Congress, enacting was “Did Court, render the a “dead letter” Act, Adoption unambiguously confer Secretary authority because the retained of the Act a the child beneficiaries payments or eliminate upon finding reduce a requirement enforce the that the make noncompliance and because federal reim- prevent ‘reasonable efforts’ to a child from bursement for payments foster care made home, being from his once re- removed respect involuntary to an removal from reunify family?” with his moved to the child home had to be the result aof Turning Id. at to an S.Ct. 1367. continuing determination that in the home “exactly required what is examination contrary would be to the welfare of the child. Act,” States the Court wrote: 360-61, Id. at Finally, 1368-69. 671(a) Here, § “In the terms of are clear: regulations promul- Court examined the eligible pay- order for be gated Adoption to enforce the Act: part, plan ments this it shall under regulations promulgated by the Secre- approved by Secretary.” Therefore tary Adoption to enforce the Act do not place requirement the Act does 671(a) places any evidence view that States, requirement only goes but that so requirement receipt for state of federal plan far as to ensure that the State have a than funds other approved by Secretary which contains plan approved by State submit a to be the 16 listed features. Secretary. regulations provide that to Id. at In a footnote 671(a)(15) requirements meet the following language, the Court noted: plan case for each child must “include a Contrary respondents’ assertion that description of the services offered and the finding require only [the statute] provided prevent services removal of plan filing approval by of a the Secre- reunify child from the home and to tary “prerequisite would add a new for the 1356.21(d)(4) (1991). family.” 45 CFR 1983,” ... existence of our regulation, “requirements Another entitled holding today imposes “prerequi- no new submittal,” provides that a state merely sites” but counsels that each stat- specify preplacement preven- must “which interpreted by ute must be its own terms. tive and reunification services are available to children and families in need.” Id. at n. S.Ct. at 1367 n. 8. The 1357.15(e)(1). significant What is is that distinguished Court then case before are not and do previous from its decision in Wilder. provide notice to the States that failure to Wilder, wrote, the Court the statute and anything do other than submit a “in had set forth some detail” the features, requisite approved by to be in determining factors to be considered £he Secretary, is a further condition on the rates; calculating methods for reimbursement receipt of funds from the Federal Govern- Court, however, in the case before the no ment. statutory guidance given further was as to (footnotes how to measure “reasonable efforts” to main- Id. at S.Ct. at 1369 omitted).11 neglected tain an abused or child in his or Pennhurst, ques- ing the Court considered the whether the Act created substantive Rights" provision clearly inquiry tion relevant to the before us to- "Bill of day. Developmentally Disabled Assistance and Bill of Rights upon mentally Act of 1975 conferred Blackmun, Stevens, "appropriate joined by retarded substantive treat- Justice Justice dissented, ment" in the "least restrictive” Al- arguing majority environment. that the had deviated though specifically principles the Court’s decision did not from the established in the Court’s question enforceability regarding precedents. opinion, provi- address the the dissenters’ In 1983, provision of the 21, un- 28 n. sion established an enforceable federal 21, regard- 101 S.Ct. at 1545 n. its statements der Wilder.

1002 Suter, brought provision In an action enforce federal courts of of

In the wake not to be chapter, this such of divergent views of appeals took somewhat inclu- unenforceable because of its deemed propositions should be derived general what chapter requiring a in a of this and, sion section particular, in from the decision Court’s specifying required con- plan or distinguishing of the deci- from the Court’s plan. a State This section is tents of First According to the Cir- in sion Wilder. grounds for expand limit or intended to cuit, was an instruc- key of Suter element availability private ac- determining the provision in a statute fails “when a tion that plan requirements to enforce State tions States, on obligation impose a direct by overturning such other than [ensuring] compli- placing the onus instead M., applied in 503 grounds Suter v. Artist provisions substantive ance with the statute’s 347, 1360, 1 112 S.Ct. 118 L.Ed.2d U.S. cause of action government, no on the federal applied prior in but not 1983 can flourish.” cognizable under section respecting such enforce- (1st Cir.1992). Court decisions Ives, 65, F.2d 70 Stowell v. 976 however, ability; provided, that this sec- view, signifi- “[T]he In the Second Circuit’s holding in intended to alter the tion is not point in was not cant Suter 671(a)(15)of v. Artist M. that section Suter only required a state to submit private is not enforceable in a this title agency but that the stat- to the federal action. guidance measuring ‘rea- provided ute no ” Switzer, 10 Marshall v. sonable efforts.’ 42 U.S.C. 1320a-2. There been some (2d Cir.1993). Eighth 929 suggestion that this statute “overrules” Suter that Suter added “addition- Circuit concluded entirely and that we should determine approach applied in al considerations” rights” question only according to “federal Soc., v. Arkansas Medical Inc. Wilder. pre-Suter precedents. B. See Jeanine Cir.1993) (8th (not- Reynolds, 6 F.3d Thompson, F.Supp. Blondis v. emphasis (“[T]he (E.D.Wis.1995) on the fact ing the Suter Court’s court must ‘rewind “unambiguously” rights must be con- prior clock’ and look to cases to Suter to that each statute must be exam- ferred and enforceability provi- of other determine basis).12 own ined on its Adoption [be- sions under the Assistance Act Suter].”). yond one involved obligation to discern the law this Our reject argument on the basis of We interpreting area does not end with Suter. plain language of the statute. Section 1994, Congress following enacted the purport reject any 1320a-2 does Security amendment to the Social Act: Suter; purports it grounds all relied carry grounds' i.e., certain that a 1320a-2 Effect of failure to out to overrule simply provision is unenforceable However, Cir.1993). (7th panels panels other of the Seventh Circuit have Various scope case-specific reading appropriate of Suter and addressed the of Suter as well taken a more Whitburn, regard- scope previous panels' decisions Miller v. 10 F.3d as ing (7th Cir.1992), See Miller Clifton. Schafer, (7th Cir.1993); Lindley, City Chicago Suter. v. 969 F.2d 278 v. Clifton panel (7th Cir.1995). of Suter: said 66 F.3d 819 Similarly, we Sixth Circuit note that while one analysis, large part, The Court based its panel reading embraced the First Circuit’s (a)(l 5) required only that a the fact Sullivan, Suter, (6th F.3d 254 Cir. Audette plan providing that the will state have a state 1994), panel it not another indicated that were prevent removing make "reasonable efforts” to decision, reject previous it would bound possible a child from his home or to make approach explain Circuit's Suter as the First . return a removed child to his home.. Noth- turning vagueness on the of the "rea a decision Adoption placed any spe- ing Act other in the Tompkins, obligation. efforts” Wood v. sonable what cific on the states defined (6th Cir.1994). n. 18 See also 33 F.3d might "reasonable efforts" entail. Dearborn, City 33 F.3d Loschiavo subsequent panel Id. at 284. A seemed to inter- (6th Cir.1994) simply (noting that the Sixth pret position n. have taken the that Suter Clifton joined concluding circuits in explicitly Circuit had statutes turns on a distinction between "harmonized”), may be requiring compliance requiring that Suter and Wilder state and statutes denied, adopt plan providing for such cert. the stale Johnson, compliance. Procopio L.Ed.2d 1067 requiring Security in a section a state of the Social its inclusion Act sued the director plan specifying the contents of such a support or of the State agency child plan. claiming they had program have the State achieve survey suggested As is the above compliance” “substantial require- with the circuits, may of the case law other it ments of Title A Supreme IV-D.14 unanimous grounds Congress “over well be that Court reversed the Ninth Circuit’s decision upon by ruled” were never relied the Suter plaintiffs. favor of the summarizing After words, may In well be that Court. the three-factor test used to determine majority suggest that never intended particular a statutory provision provisions legislation included in substantive gives right, rise to a federal the Court turned requiring plan specifying or to the case it. began by before The Court plan contents of that State are a fortiori rejecting general the Ninth Circuit’s ap- particu unenforceable under 1983.13 proach: lar, plainly we note such rule is distinguishing among Without the numer- Wilder, inconsistent with which the Court might ous have been created overrule, expressly did not but distin federally this program, funded welfare guished. Barry, See LaShawn A. v. Appeals agreed Court of in sweeping (D.C.Cir.1995) (con 556, 569, 568-70 terms “Title IV-D creates enforceable cluding essentially 1320a-2 is mean rights in families need of Title IV-D ingless Suter Court “did not services.” ... provisions Adoption find Assistance holding [T]he Act of ... lower court’s unenforceable ‘because inclusion Title IV-D requiring rights” in a “creates enforceable paints [the section a State with Act] too specifying required or broad brush. It was contents incumbent respondents identify plan’”), superseded by particularity a State with decision en banc, (D.C.Cir.1996) (not rights they claimed, impossi- 87 F.3d 1389 ad since it is — issue), denied, IV-D, ble to dressing determine whether Title the Suter cert. as an -, whole, gives U.S. undifferentiated rise to L.Ed.2d unde- (1997). However, “rights.” fined definitively need resolve the whether Suter an at -, 117 S.Ct. at 1360. As for the implicitly nounced stood for the rule re particular provision requiring statute, jected by Congress: in light of the operate support pro States to their child it is clear that fact mere that an obli grams compliance in substantial with Title gation is couched IV-D,15 provi the Court concluded this State file is not itself sufficient sion “was not intended to benefit individual grounds finding obligation unen parents, children and custodial and therefore forceable under right.” it does not constitute a federal Id. at -, at 1361. The Court ex Freestone, Finally, Blessing we turn to plained: -, the most creating recent Far from an individual entitle- services, Blessing, parents case in area. simply ment to standard support yardstick Secretary children entitled to receive child ser- for the to measure the pursuant systemwide vices from the performance Title IV-D of a Title State’s statute, precise language plan approved Secretary 13. The to a of Health Suter, "any grounds” applied at -, refers to such and Human Services. Id. 117 S.Ct. at suggests itself un- been sure referred the Court intended to announce the rule to in statute. 609(a)(8) (authorizing 15.See 42 U.S.C. Secretary of Health and Human Services to re- participating 14. A State in the federal Aid to grant by up percent duce a State’s AFDC to five Dependant program Families certify Children must "substantially comply” if the State does not operate support that it will a child en- IV-D). requirements of Title program forcement that conforms with TitleTV- requirements pursuant D's and that it will do so sup- efficiency child Thus, States’ Secretary must overall program. IV-D port scheme. enforcement provided services aggregate look any State, the needs to whether not staff- reasoning applies to the same A satisfied. person have been particular agency, which re- of the state ing levels complies with Title IV- substantially State inade- to claim are spondents seem most mandated ser- provides D when it requires generally .... Title IV-D quate cases only percent of the ... in vices sep- participating State to establish each peri- during the federal audit reviewed unit support enforcement child arate pa- to establish must aim States od.... staffing organiza- such “which meets cases, eligible percent of all ternity in 90 Secretary may requirements as tional considerably targets satisfy lower may but regula- ... prescribe.” by regulation steadily improv- efforts are long as their so tions, turn, each simply provide that in clear, then, that even when It ing.... is must have organization level of the State’s compliance” with is in “substantial func- specified fulfill staff’ to “sufficient might IV-D, plaintiff any individual Title not, however, These mandates do tions. percent of among the 10 or 25 still be thing, rights. For one give rise to federal ultimately go unmet. persons whose needs staffing and the link increased between Moreover, finding of substan- upon a even individ- provided any particular services Secretary can noncompliance, tial support the notion far too tenuous to ual is grant by AFDC merely reduce the State’s and ev- give meant to each cannot, by force of percent; she up to five eligible for Title IV-D ery Arizonan who is authority, the State command her own Department of have the provide action or to any particular take Security staffed at a “sufficient” Economic individuals. any services to certain Furthermore, neither the statute level. 'short, compliance standard the substantial any as to regulation gives guidance nor the trigger penalty provi- designed simply to is large a staff would be “sufficient.” how frequency of audits sions that increase an undefined ... Enforcement of such grant by a AFDC reduce the State’s certainly “strain standard would such, As it does percent. of five maximum competence.” rights. give rise to individual at -, Leaving 117 S.Ct. at 1361-62. Id. provisions As for the Ninth (emphasis original). open possibility that some Id. determining approach” give to enforceable individual “blanket Title IV-D rise Circuit’s rights, back to the rights, Title IV-D creates enforceable the Court sent the case ap- readily “exactly what “[i]t concluded that court to determine the Court district concrete, many provisions in their most parent rights, [besides considered asserting ... compliance’ provision] respondents do specific the ‘substantial form” for iden-. claims three criteria not fit our traditional well as right. statutory rights.” Id. The Court tifying asserted an individual -, at 1362. wrote: many are reluctant to state with, Although we many provisions, like begin To area, in this we standard, propositions of law general are de- compliance” “substantial principles few to summarize a think safe signed only guide the State structur- First, above discussion. enforcing from the systemwide derived ing its efforts Wilder, all Wright, and Suter holdings of provisions obligations. These support Second, three-prong law. eligi- good remain who are ultimately benefit individuals developed Wright services, rights” test “enforceable but indi- for Title IV-D ble Finally, good law. remains lays out and Wilder rectly. example, Title IV-D For Suter Supreme Court’s admonitions for the data requirements State’s detailed State-plan stat- proposing that Obviously, fall short of these processing system.... unenforceable utes are a give rise to indi- complex standards do fortiori princi- these good law. With computer 1983 remain services. vidualized mind, wheth- proceed to determine ples in improve They simply intended (i) er have an enforceable right amount, shall not be less in dura- transportation under the tion, Medicaid statute scope or than the medical assis- and the accompanying regulations. tance made available any individual,

such B. Do Recipients Medicaid Have a “Feder- (ii) shall amount, not be less in dura- Right” al Transportation? tion, or scope than the medical assis- tance made available to individuals not ease, plaintiffs the instant seek to (A) in described subparagraph ...; transportation enforce a appears explicitly Act, the Medicaid regulation. but a federal (19) provide such safeguards may as be argue transportation regulation is a necessary to assure that eligibility

valid of at least one of several for care and services plan under the statutory provisions found at 42 will determined, be and such care 1396a(a). Those provisions are as follows: provided, services will be in a (a) A plan for medical manner assistance consistent with simplicity of

must— administration the best inter- ests of recipients; (1) provide that it shall be in effect all political State, subdivisions of the and, them, administered be (23) (A) provide that any individual eli-

mandatory them; gible for medical assistance ...

may obtain such assistance from any institution, agency, community (4) (A) provide such methods of adminis- pharmacy, person, qualified to tration ... found the Sec- perform the service or services re- retary to necessary be for the proper quired ... who pro- undertakes to operation and efficient plan him vide such services.... According plaintiffs, regulatory provisions create a federal transportation provid- to and from (8) provide all wishing individuals ers.16 to make application medical as- turn initially sistance We to questions regard under shall have ing the opportunity so, appropriate analytical to do approach and that such cases such as assistance the instant shall be one which furnished with involve regulations. federal promptness reasonable As a previous panel eligible to all out, individuals; pointed this court has pre “There is no cedent in our circuit and those that exist are split and far from clear.” Housing Colvin v. (10) (B) that the medical Sarasota, Fla., assistance Auth. 864, 865 n. 1 (11th made Cir.1996) available individual de- (concluding that the issue had (A) scribed in subparagraph it). [de- been waived the case before scribing the so-called “categorically plaintiffs point out that the Sixth Circuit has needy”] asserted that because We note that a Pennsylvania district court in brought by 1983, recipients Medicaid under transportation held regulation is held Texas’s Medicaid be "out of con- through an action under formity” transportation with the Cohen, Morgan F.Supp. ordered However, conforming plan. to submit a (E.D.Pa.1987) Wright (relying City Roa- Smith v. Vowellnowhere addressed the Auth., Redevelopment noke and Hous. i.e., right” before "federal there us— (1987)). 107 S.Ct. 93 L.Ed.2d 781 1983? Vowell, We also note that in Smith v. Therefore, persuasive the decision has little ef- (W.D.Tex.1974), F.Supp. (5th aff'd, 504 F.2d 759 fect. 1974) court, (table), Cir. in an action interpretations of administrative all valid en law, they may create force Wright rights. creating federal Loschiavo § 1983. statutes rights under forceable Cir.1994), (6th Housing Au- Redevelopment and Dearborn, v. Roanoke City of denied, 107 S.Ct. thority, 479 U.S. rt. ce O’Connor, (1995). Accordingly, joined Justice 130 L.Ed.2d Powell, three applied the simply panel Rehnquist, Justice the Loschiavo Justice Chief directly to right” test Scalia, of the “federal prongs wrote dissent: Justice i.e., asked panel the regulation the issue — in the any indication of In the absence bene- intended to regulation was whether history, or adminis- legislative language, im- regulation whether plaintiff, fit the the Brooke of trative obligation, and whether mandatory posed a Congress intended to Amendment judicial en- of capable was regulation utilities, it is right to an enforceable create v. also Levin at 552-53. See Id. forcement. whether administrative necessary to ask Cir.1996) (de- (6th Childers, 101 F.3d 47 such a could create alone regulations ‘plaintiffs holding “that as scribing Loschiavo troubling issue not This is right. only not to enforce 1983 may use Section at- I do not parties, and by the briefed rights those rights, but also constitutional The Court’s it here. tempt to resolve regu federal [and statutes by federal defined that, reasoning questionable Similarly, ”) (brackets original).17 lations]’ dis- less gave somewhat years HUD four of the Justices three we note that setting reasonable the PHA’s cretion to that a valid view expressed the have allowances, Con- HUD understood utilities right enforce create a federal can regulation utility required enforceable gress to v. Ass’n § 1983. Guardians able under sidestep it to standards, allows apparently York, 463 U.S. New Comm’n Serv. Civil of concerned, however, I am question. 3221, 3251, 866 77 582, 638, 103 S.Ct. analysis the Court’s lurking behind Stevens, by joined Justices Justice that, once it has been may be the view Blackmun, is clear “[I]t wrote: Brennan and enforce- creates some re- that a to remedy is intended found § 1983 adopted within regulation all right, any rights of secured able deprivation dress the rights reg- creates laws, the statute including purview statutes and valid federal courts, According regardless law.” having the force of in federal ulations enforceable Justices, promulgating of Maine the rationale or the these whether expressly Thiboutot, applied holding contemplated whose a result. such agency ever statutes, applies equally only changing views Thus, frequently to federal HUD’s force of having the regulations provision administrative to administer the how best n. 6. at 3251 638 n. law. Id. 103 becomes housing tenants public utilities and extin- the creation point for focal hand, four Jus- we note that other On the a re- “rights.” Such of federal guishment rights” “federal suggested that tices have sult, 1983 determination where derive ei- § 1983 cannot under enforceable any from con- unleashed has “rights” been or from regulations alone from valid ther Schafer, 17. Similarly, that in note written in Circuit dicta Third Clifton Circuit, Cir.1992), (7th Seventh private F.2d respect to the existence "[w]ith sued plaintiff in which with a case faced federal rights requirement, valid expressly imposed obligation an enforce create enforce well as federal statutes ap- analytical regulation, followed an Virginia Univ. West section 1983.” able under (3d taken to that proach somewhat similar Casey, 885 F.2d Hospitals, Inc. v. words, panel denied, seemed 1989) Circuit. (citing Wright), Sixth cert. Cir. 936, regulation "directly” to determine look L.Ed.2d 661 How- rights” was met. test the "federal state into it reads far much We think too ever, regulation, panel concluded agreement say Circuit is that the Third ment only right to any right, insist created DeVargas v. it created also Circuit. See with the Sixth making provision Inc., Co., State have Hanger-Silas & Mason Mason (which plaintiff did required ("In (10th Cir.1988) least in some Therefore, we do dispute). at 283-84. stances, rights provided fed violations holding agreeing with as a the decision read provide a basis for eral approach. suits.”) Circuit (dicta). Sixth intent, neetion congressional is trou- of amending has not disa- bling indeed. greed with it. Respondent nevertheless asserts Id. at 107 S.Ct. at 777-78. The the provision for a “reasonable” allowance Circuit, Fourth citing position vague utilities is too amorphous dissent in Wright, has written that “[a]n ad- confer on an tenants “right” ministrative ... cannot within meaning 1983 and that the already interest not im- whole utility matter of allowances must be plicit in enforcing statute.” Smith v. left to the PHA, discretion of subject Kirk, (4th Cir.1987). to supervision by HUD. The regulations, Special also Project Former Employees however, defining the statutory concept of (4th Norfolk, Ass’n v. City 909 F.2d 89 “rent” utilities, as including have the force Cir.1990) ).18 (following Smith Kirk ..., they law specifically guide- set out Given the fact that the view set out above lines that the PHAs were to follow represented position of the dissenting establishing allowances, utility they Justices in Wright, we think our first obli- require notice to opportuni- tenants and an gation is to ascertain whether the majority ty proposed to comment on allowances. opinion Wright, which remains binding view, our the benefits Congress intended us, upon rejected position the dissent’s re- on confer tenants are sufficiently specif- garding eases involving regulations. federal ic and definite qualify as enforceable Ultimately, persuaded arewe major- that the rights under Pennhurst [Pennhurst State ity reject not position did that and thus that Hosp. Halderman, School & v. 451 U.S. majority’s opinion does ar- foreclose (1981) 101 S.Ct. 67 L.Ed.2d 694 ] and guments that turn on the expressed concerns rights not, that respondent as by the dissent. Because careful attention to beyond suggests, competence of the the language of majority’s opinion re- is judiciary to enforce. quired, we set out the relevant discussion Wright, 479 U.S. at 107 S.Ct. at 773- again: 75. We do not think the is passage fairly The Brooke Amendment could not be read to hold that federal rights are created clearer: as further amended ten- either regulations of their own force byor ants could charged be as rent no more and any valid interpretation administrative of a no less percent than 30 of their income. that creates some right. This was mandatory a limitation focusing We begin by that noting majority no- on the family individual and its income. where takes issue with the sugges- dissent’s The intent to benefit tenants undeniable. tion majority did not so hold much. any Nor is there that HUD inter- As for what majority say, did we note the regulations, im in effect when this persistent suit focus tying on right to a rea- began, expressly required that a “reason- utility sonable to Congressional allowance in- able” for amount utilities be included tent to create rights. federal signifi- We find rent that a PHA was charge, allowed to cant regard in this the fact that majority interpretation to which HUD has adhered first focused directly statutory provi- on the both and after adoption before creating sion ceiling, rent describing the Brooke Amendment. HUD’s view is enti- as “a mandatory focusing limitation tled to a interpretation deference as valid on the family individual and its income.” In statute, words, the course the Court seemed to locate the 18. For other appeals cases in the Columbia, courts of deal v. Samuels District 770 F.2d ing with relying part (D.C.Cir.1985). causes action at least in 184 opin- While none of these regulation, Farley Philadelphia see general approach Hous. ions articulates a dealing Auth., (3d Cir.1996); Buckley cases, F.3d 697 suspect underlying such we that Cal., City (9th Redding, Cir.1995); F.3d least principles of these some decisions are simi- Services, Albiston v. Maine Comm’r Human Farley, lar to those we below. articulate See (1st Cir.1993); Ellenbecker, F.3d ("[The] Howe strictly at 699 cause of action arises (8th Cir.1993), denied, F.3d 1258 cert. provision]. statutory Regulation [the under § (1994); 966.57(b) 128 L.Ed.2d merely section."). interprets that regula- either are created turning to federal provision, statutory in the by any valid administrative “alone” tions respon- answer only to regulation en- creating some of a statute HUD’s argument dent’s definition right. forceable au- was concept of “rent” statutory n. view, at 430 force behind driving id. See by the statute. our thorized (“We is a reject re- in this area thus case law 774 n. Court’s 107 S.Ct. Congressional the Brooke courts find argument requirement spondent’s right. particular only to ceiling applies intent rent Amendment’s Suter, this in expression of defini- find a clear the HUD We charge for shelter dispositive as the posed the Court charge where including a reasonable of rent tion enacting the Congress, question: “Did by the stat- authorized is not utilities Act, confer unambiguously Adoption ute.”). in that discussion the Court Although Act child beneficiaries to valid adminis- owed spoke of the deference make the State enforce statutes, it so in did interpretations trative from prevent child efforts’ ‘reasonable of a context particular home, once re- his from being removed of a the content merely defined family?” his reunify the child moved had opinion, Congress that, majority’s in the light of 357,112 1367. In S.Ct. at statute. upon the conferred ap- focus, reject Circuit’s the Sixth (referring to the at 774 id. at right” in finding a “federal proach i.e., con- “defining the regulations as right meets in its own ”). conclusion, the Court In cept of ‘rent’ For the rights” test. three-prong “federal that “the benefits that it believed reiterated approach reason, the reject we also same on tenants to confer Congress intended in “troubling” by the dissent labeled as qualify to and definite sufficiently specific in rights finding Wright i.e., enforceable — Pennhurst under rights interpretation of a any valid administrative not, respondent as rights that are § right. some enforceable that creates statute judi- of competence the beyond the suggests, precise case define the in this at need not 107 S.Ct. We Id. at ciary to enforce.” may play in the added).19 regulation which a valid conclude We role (emphasis 774-75 would analysis.20 Wright rights” that “federal not majority did hold Wright the

that Rights Act of and Bill of majority’s opin- Disabled Assistance the We footnote of note that receipt of feder- imposed the may a a condition on part: in "The dissent ion reads rights view, favor in clear the substantive to us is that al funds and created but different regulations gave Secretary's part an on the plaintiffs, tenants enforce- relied in low-income of the utility Congressional intent: right understanding a allowance reasonable of able similar fully the authorized regulations were the that Secretary telling that the Equally is the fact at 769 n. 3. S.Ct. Id. 420 n. at statute." position the rejected of specifically the has majority here was possible that We think it is the Act, purpose of the The Solicitor General. position on whether referring to the dissent's merely Secretary, "to im- is according give a regulation regulation qua could rise provision of services prove and coordinate that, position "right," to the but dissent's instead developmental disabilities.” persons with feder- assuming regulation create a a could even (1979). Secretary ac- § CFR 45 knowledges 1385.1 regulation was particular at issue right, the al incapable authority was included "[n]o judicial enforcement. of Department to Act to allow [the 1975] in event, any incon- we see no S.Ct. at 778. of on the basis from States withhold funds interpreta- sistency 3 and our footnote between § findings 6010].” 45 [of failure to meet "fed- majority’s full discussion tion be funds cannot Fed.Reg. If into question, decline to read rights” and we eral comply with a State’s failure terminated for any rule than broader isolated statement this hardly can be considered from that discussion. derive grant federal funds. "condition" Halderman, 451 Hosp. v. Sch. & Pennhurst sug- regulations as the role In addition 1531, 1543, 1, 23, 67 L.Ed.2d infra, Supreme Wright, text gested see in Court, holding (1981). Similarly, in the Wilder Secretary's looked has sometimes Court actually binding obligation to there was in- understanding Congressional intent as an rates, adequate noted inter adopt reasonable to ascer- effort terpretive its own aid in alia: example, Penn- legislative For intent. tain Secretary expressed his intention Court, argument rejecting an hurst plan does com- if state Developmenlally withhold funds Rights" "Bill seem long to indicate that so as the hand, statute On the other regulation if the de- specific itself right upon plain- confers fines the content of a statutory provision that tiff, regulation merely and a valid further creates no right federal under the three- defines or fleshes out the content test, prong or if the regulation goes beyond right, conjunction then the statute —“in with explicating specific content of the statuto- the regulation” may create a right federal ry provision imposes obligations distinct as further defined regulation.21 in order to further objectives the broad un- Wright, the statute itself conferred derlying statutory provision, we think the plaintiffs: on the tenants could be too far removed from Congres- charged rent no more and no less than sional intent to constitute a right” “federal 30% of their income. The con- under 1983.22 To hold other- cerning utility merely allowance defined wise would be inconsistent with the driving concept Thus, of “rent.” force Supreme precedent re- Wright has been holding described as quiring Congressional intent to create fed- “[a] providing statute tenants in low- eral rights and with Court’s housing income could only charged be 30% of directive that courts find must rent, their in conjunction income reg- has unambiguously conferred providing ulations that ‘reasonable utilities’ plaintiff. on the Suter, 503 U.S. at costs were included the rental figure, cre- 1367; Pennhurst, see also ated [a] 1983 to not be charged 18, 24-25, U.S. at 101 S.Ct. at 1543-44. more than a ‘reasonable’ amount for utili- Suter, ties.” 503 U.S. at 361 n. Applying these principles to the case at 1369 n. 13. hand, we conclude ply "noncompli- there is expressly declined litigation to take practice." ance in See 42 CFR 430.35 position question. on this To find a federal (1989) ("A question noncompliance prac- transportation, we would have to accord the tice arise from State’s failure to actu- transportation regulation entirely different ally comply requirement, with a Federal re- weight than is evidenced Supreme the Court’s gardless of complies whether the itself reliance on interpretive an as aid in requirement”). with that ascertaining Congressional . intent. As we de- Ass'n, 498, Virginia Hosp. Wilder v. 496 U.S. follows, scribe in detail in the text which in order 2510, 2519, (1990). 110 S.Ct. 110 L.Ed.2d 455 plaintiffs, to find for the we would have to either Finally, determining that statutory in the relevant rely regulation on the to right create a federal of provision imposed upon specific States not a its own force or right derive a federal from an binding obligation, general- but instead a “rather interpretation goes administrative beyond that duty,” ized id. at S.Ct at 112 the Suter defining rights the content of conferred stat- Court wrote: ute imposes instead obligation a distinct promulgated by in Secretary the order Adoption to to objectives enforce the further the underlying Act broad do not evidence a 671(a) places provisions. view any requirement statutory that receipt state of federal funds other than the requirement that the State submit a to be 21. We note that we are exactly uncertain how approved by Secretary. understanding our Wright squares of with the M., 347, 361, Suter v. Artist 112 S.Ct. Fourth Circuit's case law. To the extent that we 1360, 1369, rights conclude ultimately federal must emanate above, passages quoted In the explicit from either implicit require- or statutory part in relied on administrative under- ments, we agreement would seem be in to with standings Congressional of regard intent with to However, the Fourth Circuit. we are uncertain scope obligation imposed by a federal whether the agree Fourth would Circuit with our situation, statute. instant appears it that regulations may conclusion that further define Secretary consistently position has taken the rights imposed by federal statutes. obligated that States are necessary to ensure transportation providers. to and from See Brief This, course, that assumes the administra- 22. Secretary Amicus Curiae of Health and Hu- interpretation tive implicit is not However, in statute. man Services. the issue us before is It is clear Golden Corp. City State Transit different Congress one—whether or not intended 103, 112, Angeles, Los upon private U.S. to confer plaintiffs right a federal (1989),

enforceable under L.Ed.2d 420 rule of "[a] 1983. regulation any product does law that not is evidence administrative understanding Congressional vague, ambiguous, of a incomplete intent as to this point; similarly, we Secretary provision” note that be enforced under regard conclusion reach similar We content of not define regulation does 1396a(a)(19), requires that State ing plaintiffs upon the conferred specific right may be safeguards as provide “such plans view, between nexus In our Congress. ser ... care and necessary to assure to intent Congressional in manner consis ... provided will be vices simply too tenuous is create federal and the of administration simplicity with tent transporta- right enforceable create con recipients.” We interests best tion.23 gener imposes only a this section clude that words, duty the States —in on alized of ad the “methods turn first We insufficiently specific to con is provision upon relied primarily ministration” plaintiffs. right any particular fer We by the below. court plaintiffs and by the Suber, at 1370 U.S. See have an do not plaintiffs conclude not (“[T]he language does efforts’ ‘reasonable of administra to “methods an enforceable confer unambiguously term, Blessing v. Free last tion.” Just The term ‘rea Act’s beneficiaries. upon the -, stone, 117 S.Ct. at least as context is efforts’ sonable distinguished the Court L.Ed.2d 569 gener only rather impose read plausibly intended of Title IV-D provisions between States.”). courts Other duty alized provisions recipients and benefit individual respect conclusions similar have reached in structur guide the “only to intended Clark, 1396a(a)(19). Bumpus v. §to enforcing sup efforts at systemwide ing its (“Section Cir.1982) (9th 679, 683 at -, obligations.” port 1396a(a)(19) condi not the sort of “methods of conclude We can be funds which of federal receipt tion only to is intended administration” rights in Medicaid substantive to create said structuring its efforts moot, guide the State opinion withdrawn recipients.”), recipi to Medicaid services (9th Cir.1983); v. Bern provide care Stewart F.2d 826 (5th Cir.1985) (cit therefore, not create and, stein, does ents plaintiffs. by the v. Hair approval); Cook ing Bumpus (6th did Cir. ston, 948 F.2d 1288 conclude No. Because we 1991) Nov.26, disposition) (unpublished a federal upon the intend confer administration,” (“[T]he finding it fol not err court did district “methods right to [provisions] defining precise that a lows permit and definite sufficiently specific cannot statutory requirement content of that 1983.”).24 Again, through enforcement right. a federal plaintiff assume, by is discussion, the asserted the interest ex- subsequent In our 23. judicially en- amorphous” be vague to deciding, regulation the is "too and pressly that without Court, Wright example, in provisions the For each of the forceable. interpretation of valid argu- only ambiguous” vague emphasize rejecting assume this and that we a "too cited. We wrote; case, ment, defining argument; each deter- ... the purposes in “The validity regulation would re- including the utilities mining concept statutory the of 'rent' as analysis law, set out in Chev- quire application of the they set out specifically ... have the force U.S.A., ron, v. Natural Resources Inc. in estab- the were follow guidelines Defense PHAs to that Council, Inc., allowances, they require notice utility lishing and L.Ed.2d 694 opportunity on to an to tenants and comment 431, 107 U.S. at proposed allowances.” provision Court, that the our concern to Similarly, In addition in the 774. Wilder S.Ct. at 24. insufficiently specific to confer is argument "reasonable rejecting that the an suspect that plaintiff, we such rights also on the was "too obligation adequate reimbursement” amorphous” to vague obligation “too an is part the amorphous,” in on vague relied To ask a capable judicial enforcement. be Wright, regulations: in the implementing "As practice com- whether State court to determine which a out factors set broad, competing, plies and sometimes with the adopting its rates....” in State must consider "the "simplicity goals of administration” We find S.Ct. at 2522. likely recipients" would of the best interests the statute in each case significant fact that the competence. strain regulation right, the particular itself set out a right. In of that only the content defined Supreme Court recognize We that the further view, cases is approach in these Court's determining the our regulations in to sometimes looked imposed that federal ments plans by do not in absence such believe other statu- tory by Congress, implementing provisions. right created regulation can enforceable un- Finally, we find no under the §der regulation conjunction in any read of the Next, provisión remaining statutory we turn to the by sections cited plan plaintiffs: 1396a(a)(8), § requires which that a State requires 1396a which that politi in all “provide plans provide that it shall be effect in wishing “individuals State, and, application cal if adminis to subdivisions make for medical assistance them, mandatory upon plan tered them.” opportunity be shall to have do 1396a(a)(l). so, gist plaintiffs’ ar and that such assistance shall be fur gument regard provision to this seems promptness nished with reasonable to eli all gible individuals”; providing transportation 1396a(a)(10)(B), be which necessary providers requires plans from is provide ensure that State that medi plan truly provided is “in in all areas of cal effect” assistance “categorically However, needy” recipient amount, State. Court has shall not less “in be duration, rejected a in argument scope” similar the Title IV or than the assistance made Suter, D context. relied on available categorically needy recipi to other analogous provision IV-D25 “medically needy” recipients;26 Title ents or to 1396a(a)(23), argue that the had a obli requires substantive that the State gation plan provide enforceable in a 1983 action to make eligible that individuals for med required the “reasonable efforts” ical elsewhere assistance obtain such assistance statute; made, if qualified providers such efforts from who undertake to went, argument apparently provide required. the service or services It rejected may “in not be effect.” The each would be that of these statutes creates think ‘in effect’ argument: right;27 similarly, may some federal “[W]e it be regulation directed is a valid State, apply political all provisions subdivisions of of each un of these modify However, and is not intended to otherwise der Chevron. we do not think ” Suter, factors, ‘plan.’ word U.S. at 112 these two if even we found both to be true, Court’s up S.Ct. at conclusion that add would to a federal Adop transportation. be “shall effect” each case the transporta requires only regulation tion Act tion Assistance would be valid not because plan apply political reasonably to all subdivisions would defines the content of cre (such arguments statutory seem provisions, to foreclose as the ated as did plaintiffs’) attempt regulation Wright, use “shall be in but provisions effect” State-plan legisla objectives in other furthers the broad un a bootstrap require- tion for enforcing derlying provision. each In other State, and, closely holding political related to We our above. all subdivisions of the them, specific right where a mandatory upon held that statute confers a administered be plaintiff, and valid further them.” precise or fleshes out the defines content that right, conjunction then the statute “in with” the precise categorically The distinction between may regulation right create federal as further needy recipients medically needy recipients by regulation. quoted Similarly, defined the the is a technical one not relevant to the case before portions Wright suggest that and Wilder courts today. present purposes, us it For is neces- regulations precise can to to the look flesh out 1396a(a)(10)(B) sary § de- to understand that is rights content conferred signed “categorically needy” to that re- ensure thus, and, bring rights those within realm the are, cipients generally speaking, the most —who above, judicial enforceability. As we have stated needy recipients comparable assistance —receive 1396a(a)(19) simply § we cannot conclude that categorically to the assistance received any specific right upon plaintiffs. confers the recip- needy recipients by "medically needy” ients. 671(a)(3) 25.42 U.S.C. "In order for a reads: eligible payments part, State be to under this plan approved by argument only Secretary have a shall 27. We assume for the sake of provides right. provisions which ... that the be in effect these some federal shall law, rights violates established words, transportation to enforceable not think that dowe statute and a reasonably which holds a federal is understood providers and from an validly regulation to can create right prompt promulgated part the content of to be right, assistance, comparable assis- actionable under U.S.C. enforceable provision of Instead, regulation together tance, if if the statute and among providers. choice or prongs three of the test reiterated of meet the is a valid Ass’n, Virginia Hosp. v. 496 U.S. provisions, it be because trans- these would Wilder 498, 509, of en- 110 L.Ed.2d portation may a reasonable means be omitted). (1990) (citations assistance, Finally, even provision of suring prompt assistance, majority’s approach to among pro- choice if new enforceable comparable correct, plaintiffs Congressional in this case intent viders. Such links to support validity of a still have demonstrated an enforceable be sufficient however, ... they “necessary transportation from think are too to and regulation; we statute, 42 providers” under the Medicaid support a conclusion Con- tenuous to 1396a(a), applicable regula- unambiguously and the gress has conferred tion, I re- Accordingly, trans- 42 C.F.R. 431.53. recipients Medicaid spectfully § 1983. dissent. portation under CONCLUSION IV. I. reasons, foregoing we For conclude appeal, initial on In its brief State right, do not have a federal plaintiffs no asserted transportation under transportation statute. Medicaid providers.28 We there- to and from Medicaid argument solely its based this on State judgment

fore reverse district question claim that the exceeds grant with instructions to court and remand scope enabling statute. Chev- See motion dismiss. State’s U.S.A., ron Inc. v. Natural De- Resources AND REVERSED REMANDED. Council, Inc., 837, 842-43, fense 2778, 2781-82, 81 L.Ed.2d 694 KRAVITCH, Judge, Senior Circuit challenge did State the district dissenting: holding court’s deemed valid reasoning together I can disagree with and the re- under Chevron be considered opinion on with the relevant statute under all three majority sult of the several First, majority grounds. majority improperly prongs de- of the Wilder test.1 The that, view, claim my resolving cides issue the State thus errs that the State an Moreover, majority’s analysis waived. abandoned.2 Moore, briefly 28. We note that we do not hold that the Wm. Moore’s Federal Practice 328.20[4],[7] (3d ed.1997). Fed.R.App.P. comply II obligation See State no with the is under 28(a) (describing required appellant's contents of transportation regulation. simply a dif- This brief). appellant's A claim absent from initial today. ferent from the one decide considered even the court brief is abandoned James, F.Supp. 1. See requests supplemental Harris subsequently briefing on (M.D.Ala.1995). appeal, brief on Maryland People's initial issue. Counsel F.E.R.C., (D.C.Cir.1985) many State of the same referred 760 F.2d 319-20 (Scalia, J.) majority, (deeming an issue waived where a cases relied see infra appeal party dispute note did did not raise it on until after but it supplemental briefing) (citing requested a three-prong court could considered under the Wil- be Miller, Instead, Wright & Civil C. A. Federal Rules argued der “the test. (1969)); Horsley § 1295 see Procedure also Secretary's regulation for services Ala., (11th Cir.), cert. Congressional statute exceeds the mandate of the and, 410, denied, - U.S. -, S.Ct. L.Ed.2d 116 133 therefore, meaning right the is not a within J., (1995) (Hatchett, dissenting) (concluding 328 Appellant's of§ at 19. 1983.” Brief argument waived harmless error when that state argument panel’s appellant's response 2. An must be in initial claim the raised Moreover, supplemental briefing). request brief in order not to be considered waived. for a Co., Inc., Ingram rely Equipment majority does on McGinnis v. 918 not Freestone, 1491, (11th Cir.1990); Blessing recent v. 1496-97 20 James Court’s decision

1013 II. able a right. stringent require- It divines plaintiffs ment that satisfy must in order to addressing ques- than the Chevron Rather demonstrate that an enforceable right exists: brief, in its initial tion raised the State view, “In driving our force behind the thoroughly Su- majority examines several Supreme Court’s case law in this area is a a preme cases3 and discovers in them Court requirement that courts find a Congressional determining new whether fed- framework intent to create particular right.” a rights regulations eral and create statutes Using under actionable 1983. this frame- general From this premise, majority work, majority plain- concludes that derives the following test for determining right tiffs do have an enforceable help can view, my § 1983. under actionable under A regulation can analysis contrary governing is Su- be used to create an right enforceable if the preme precedent. Court itself statute confers an right and asserting violation Plaintiffs a of federal regulation “merely further defines or first law under 1983 must demonstrate fleshes out the content of that right.” A right that an enforceable federal Ac- exists. however, regulation, is “too far from removed cording three-prong the established test Congressional intent” help and thus cannot Wilder, right restated such an enforceable 1) create an if either: 1) statutory provision in- exists if: is regulation defines the content of a 2) plaintiffs;' provi- to benefit the tended provision that itself creates no enforceable imposes binding obligation sion a on 2) right; beyond “goes 3) unit; governmental as- interest explicating content of the statuto- vague serted not “too is ry provision imposes distinct obligations amorphous” 496 enforcement. objectives order further broad un- 509, at 110 at 2517. also U.S. S.Ct. See derlying provision.” [that] Freestone, -, -, Blessing v. U.S. 1353, (1997). 1359, 117 S.Ct. 137 L.Ed.2d 569 majority’s The is primar- framework based met, If .three these conditions are then a ily Wright City Redevelop- v. Roanoke remedy presumptively 1983 available.4 Auth., 418, ment and Hous. 479 U.S. 107 Furthermore, infra, demonstrated even 766, (1987). 93 781 S.Ct. L.Ed.2d In that statutory provision satisfy a alone does not case, statutory provision created an en- test, statutory provision the Wilder payments forceable to have rental regulation promulgated a valid thereunder income, capped percentage at a certain satisfy may spe- the test and thus confer a and a rent defined to include right. cific enforceable charges for “reasonable amounts of utilities”. however, 419-20, majority, develops new Id. at 107 at S.Ct. 768-69. approach analyzing whether a held that gave statute “the low- regulation together valid create an enforce- income tenants an enforceable to a - U.S. -, 1353, 444, (1989); Wright 117 S.Ct. 137 569 110 S.Ct. 107 L.Ed.2d 420 v. Auth., concluding City Redevelopment valid and a Roanoke and Hous. 766, regulation promulgated thereunder not be 107 93 S.Ct. L.Ed.2d 781 (1987); together prongs Hasp. considered the three Pennhurst State v. Sch. Halder- test; thus, man, the Wilder the fact that the State filed U.S. 694 101 S.Ct. 67 L.Ed.2d prior Blessing its initial brief does not excuse challenge. failure brief's to articulate Wilder Fed.R.App.P. advisory note committee's State, Cf. 4. As the Court held in “The burden Golden (authorizing litigants courts to relieve of conse expressly Congress to demonstrate that with quences injustice of default where manifest remedy We drawn is on defendant. do result). would otherwise lightly conclude that intended to preclude remedy reliance on as a for the - Freestone, -, Blessing federally deprivation right.” U.S. of a secured (1997); (citations S.Ct. 137 L.Ed.2d 569 at 449 Suter U.S. at M., omitted). Blessing, quotation Artist U.S. S.Ct. internal See also (1992); -, 1360; Wilder, supra; Wright, L.Ed.2d 1 Golden - U.S. Corp. City Angeles, Transit Los at 770. U.S.

1014 ” concern, separation powers, grounded in of Id. 420 utility allowance.... reasonable con- Congress than the courts rather 3, Generalizing n. 3. from 769 n. 107 S.Ct. availability for viola- of remedies trols ease, majority that a concludes single this tions of statutes. help create an enforceable regulation can cases, Wright, as in where in those 9, 110 at 2517 n. 9 at 509 n. S.Ct. 496 U.S. an en- standing alone confers the statute omitted). (citations quotation internal merely and the right, forceable showing specific of Con- an affirmative Such right. of that the content “fleshes out” necessary to establish gressional intent is action, § however. The Wil- 1983 cause of however, fun- is majority’s approach, The continued; der Court By § damentally requiring 1983 flawed. provides in- alternative “Congressional Because 1983 an plaintiffs to demonstrate right,” express congressional of authoriza- particular federal source tent to create a suits, private separation-of- the three- of these majority depart from tion appears Wilder, in a present are not According powers concerns prong test.5 Wilder view, we plaintiffs may an 1983 with this § 1983 assert enforceable case. Consistent rule simply by proving recognize exception general right under a statute remedy of for violation provides satisfies each 1983 509, statutory rights only when Con- 496 U.S. 110 S.Ct. at of federal prongs. three test, only Congression- affirmatively the rem- gress withdrawn 2517. Under plaintiffs edy. must show is the al intent that the by majority, them. The

intent benefit omitted). (citations quotation internal contrast, impose plaintiffs §on 1983 would By § 1983 establish demanding that showing stringent more burden of Congress create specifically intended to Congress affirmatively intended to create a right, majority thus fun- an enforceable specific damentally governing § law 1983 alters the contrary es- is 1983. This of causes action. tablished law. Furthermore, majority’s treatment appears imported majority to have analysis in its enforceable into the context framework estab- 1983 Supreme prece- is inconsistent with Court Ash, 66, by 422 lished v. U.S. 95 Cort approach by most dent and taken (1975), 2080, 2088-91, 45 L.Ed.2d 26 S.Ct. law, appeals. courts of Under established cre- determining whether federal statute statutory provision if a does not even alone As the Court implied right ates an action. right, the statu- confer held in Wilder: tory provision together valid cases, employ promulgated create such implied right of action thereunder methodology, employed right. proper the four-factor Cort test determine by the courts intended to circuits,6 appeals eight in at is to consid- private remedy asserted for the violation least implementing reflects a er both statute and statutory rights. The test test, 819, (7th Chicago Lindley, Cir. re- v. 66 F.3d 827 majority 5. The admits that the Wilder Williams, Cal., 1995); cently Maynard employed Buckley City Redding, v. 72 F.3d 66 F.3d v. 848, law,” Cir.1996), (11th "good 188, (9th Cir.1995); 852 but City still 192 v. Loschiavo holding majority’s that conces- Dearborn, Cir.1994), actual belies 548, (6th 33 F.3d 552-53 sion. 1150, 1099, denied, 115 130 cert. U.S. 513 Wilson, (1995); L.Ed.2d 1067 v. Martinez Sixth, First, Second, Third, Seventh, 6. The 1415, Cir.1994); (9th & n. 4 Howe F.3d Ninth, Eighth, and District of Columbia Circuits Ellenbecker, Cir.1993), (8th 8 F.3d regula appropriate all have to consider found denied, 1373, 128 cert. inquiry. conducting See Far tions Wilder by Blessing, supra; L.Ed.2d 49 overruled Auth., ley Philadelphia Hous. 102 F.3d Servs., 7 Comm’r Human Albiston Maine (3d Cir.1996); Colum Doe Fein v. Dist. of Cir.1993), (1st part overruled in F.3d bia, (D.C.Cir.1996); Tony By L. F.3d Blessing, supra; Nursing v. Axel Home Pinnacle Childers, Through Simpson v. (2d Cir.1991). rod, 1313-14 denied, - -, (6th Cir.1995), cert. (1996); City

1015 (“The determining in regulations regulations whether an en- S.Ct. at 1369 ... do 671(a) forceable exists under Wilder test evidence a places any view that in defining precise contours of such a and receipt for state of federal funds right. other than the requirement that the State approved submit a to be Thus, the Secre- consistently courts have considered tary.”).9 Wilder, the Court prong cited regulations under the first of the Wil- and de- test, provides regulatory scribed provisions der which that a statute support must intended to benefit in be order conclusion participating that states have right. In Blessing, to create binding obligations adopt reasonable and example, for the Court evaluated whether adequate Medicaid rates. 496 U.S. at 512 & statutory provisions two were intended to 513 n. 110 S.Ct. at 2519 & n. 11 (citing 42 plaintiffs by analyzing benefit the statu- 430.35, 447.253(a),(b) (1989)). §§ C.F.R. provisions tory conjunction in with their im- appeals Courts of also have regu- considered plementing regulations.7 appeals Courts of lations under prong the second of the Wilder have regulations also considered under the test.10 prong proper, first test.8 It Wilder Finally, .consistently courts therefore, agency’s have interpreta- to refer to an consid- regulations ered deciding prong tion of a statute in under third whether Con- test, gress plaintiffs. intended to Wilder provides benefit the which that a statute does not create an if the Similarly, consistently courts have consid- “vague interest too asserted is and amor- regulations prong ered under the second phous” enforcement.11 In Wilder test, provides the Wilder that a statute itself, the Court a statutory examined provi- binding must be in order create an en- sion required that pay a State to hospitals M., right. forceable Suter Artist 503 such “rates [that] the State finds are reason- 112 118 1 able and adequate.” 496 U.S. at 110 example, the Court examined the (citing at 42 regulations promulgated Adoption under 1396a(a)(13)(A) (1982 V)). ed., Supp. Assistance and Act As Child Welfare to deter- Suter, subsequently explained mine whether the Court duty statute created a binding on the State. 503 U.S. at 112 the Wilder Court First, 7. statutory Farley, Court held that the detailed 10. (finding at 702 102 F.3d that lan- regulatory requirements pro- guage and for States' data “mandatory, of statute and was Fein, cessing systems clear”); and benefited individuals indi- Doe 93 F.3d at 867 rectly give (stating statutory provision and did not rise individualized failed Wilder test - -, Wilder, computer regulations, regulations services. U.S. at unlike mandatory); Tony By S.Ct. at Through 1361. The Court also were not determined L. statutory Simpson, regulatory staffing (concluding man- 71 F.3d at 1189 that statu- give tory rights, provision dates did not rise to individualized failed Wilder test because neither part regulations because of mandatory); the tenuous link between in- statute nor chiavo, were Los- staffing provided (stating creased and the benefits to indi- 33 F.3d at at---, mandatory language viduals. Id. S.Ct. at included 1361-62. "sufficient ... Howe, binding obligation....”); create a 8 F.3d (finding regulations at 1263 Farley, es- (concluding 8. See F.3d at “particular tablished mandates that plaintiff beneficiary "is an intended [the statu- specific enough impose binding obligations”); provision] tory lations”); accompanying regu- and its HUD Albiston, (concluding statutory ("[T]he Buckley, F.3d at 192 Act regulatory provisions “impose[d] specific, clearly plaintiffs. is intended to benefit the mandatory obligation”); definite and Pinnacle unambiguously purpose Act’s state a Home, Nursing (describing 1313-14 waterways to increase access to for recreational Court, Loschiavo, concluding fishermen.”); how Wilder boaters 33 F.3d at ("We mandatory, was relied on both statuto- [plaintiffs] no doubt that the ... ry regulatory language). regulation."). were intended of this beneficiaries III.C, Indeed, infra, Congress 9. As described in Part sub- the State that this concedes court sequently together overruled this limited consider a statute un- obligations Security prong Appel- a State's der Social the third the Wilder test. Act. See U.S.C. 1320a-2. lant's Letter Brief thin, and, actually analysis upon very erects its Boren Amendment held adopt view, insufficient, my legal reasonable foundation. States to required the rates, that this obli- adequate and and providers. gation was enforceable III. part the fact that in on We relied analyzed majority’s Whether regulations set forth in some statute and framework or under the established Wilder in deter- the factors be considered detail test, right have an enforceable calculating rates. mining the methods pro- from Medicaid transportation to and (emphasis at 1368 at right is conferred viders. This enforceable Wilder,

added) n. (citing 496 U.S. at 519 1396a(a) § 42 by 42 and C.F.R. U.S.C. 17). appeals at n. Courts of 110 2522 431.53, regulation promulgated § a valid regulations under also have considered thereunder. the Wilder test.12 prong third of statute, standing By concluding that

alone, prongs must all three of A. meet test, majority departs thus from Wilder 431.53, § According to 42 which C.F.R. precedent and the estab- Supreme Court B, appears Subpart under Part entitled most of practice appeals. of courts lished Requirements”: “General Administrative majority position, novel support for its A must— merely passage cites from a Fourth Circuit Kirk, decision, Smith panel 821 F.2d (a) Specify Agency that Medicaid (4th Cir.1987),13 opinion was 984 necessary transportation ensure will Wilder, Suter, Blessing, prior to and written recipients providers; to and from by any other which has not been cited and and hand, appeals to of date. On court (b) Agen- Describe methods that the eight circuit courts and cy requirement. will use to meet this appeals regulations de- of have considered transportation require- This termining statutory provision cre- administrative they ment has existed in almost identical form rights, and have used ates enforceable very precise beginning since the of the Medicaid regulations to determine the count- rights.14 majority program.15 thus ours of those Buckley, (concluding supra, Farley, 14. The decision

12. See 102 F.3d at 702 Ninth Circuit’s regulation meaningless previous language too of statute and "is not renders dicta Howard courts”); City Burlingame, vague amorphous to F.2d 1380 & 4 be enforced 937 n. (9th Lindley, (finding regulations may Cir.l991)(stating 827 no "de 66 at F.3d 1983,” obligations § regulations provided guid- legal where clear fine enforceable under no "amorphous merely but that there is as to whether ance but instead statutory tracked "some Buckley, they already implied language”); 192 F.3d at not statute”). appears (holding unambiguous enabling The Fifth Circuit that statute was Loschiavo, regulations regulation); to have determined to treat of clear command how conducting inquiry. (concluding regulation was F.3d at 552-53 Wilder See Gracia Hous., (5th sufficiently "unambiguous” "straightfor- and F.3d Brownsville Martinez, Cir.1997) ("[I]t right); clear that can ward” establish enforceable (finding purposes creating § & n. 4 no be considered 'laws’ for denied, 1983.”), manageable action statute had "no actionable under section cert. where -, implementing were standards” - Howe, -(1997). clearer"); (finding at 1263 "no implementing regulations statute and established transportation Adequate origi- "particular one of the mandates that was high quality enough impose binding obligations”); Albi- nal "criteria to assure care ston, provided (concluding and services under" State Medicaid 7 F.3d at plans. Supplement regulatory provisions imposed specific, "a defi- D to the Handbook of Public D-5130(2)(b) (June mandatory obligation”). Assistance Administration nite 17, 1966), transporta- Secretary's Exhibit B. The simply ad- included in the initial in- "[a]n 13. The court in Kirk held tion was program, regulation en- see 33 ... cannot create an terim rules for the Medicaid ministrative 16,165 (1968), already implicit Fed.Reg. then codified at 45 forceable 1983 interest not 249.10(a)(4) (1970)(slating enforcing C.F.R. that State statute.” 821 F.2d on According Secretary, transpor- experience recognition the needy will not be pursuant necessary able obtain regulation promulgated tation was 20-20.A tions state: cal Assistance § A State 1396a(a), 1396a(a)(l),(10), (4) several ^[******] provide istration (June 6, 1972),Secretary’s plan (also including subsections for medical Manual, MSA-PRG-17, § (A) (including basing and such methods (4), (23)). assistance methods These subsec- of Exhibit A relating admin- must— Medi- 6- thus hibit A means timely Medicaid adequate assistance, Medical element of § 1396a(a)(4),(8),and sion of 6-20-20.A is a medical care transportation at 2. The Assistance recipients getting transportation. plan care, (June 6, 1972), reasonable administration16 and because can Manual, (19) services is an essential services providers they Moreover, are without Secretary’s receive medical MSA-PRG-17, if they the service.” provi have Con Ex gress effectively establishment mainte- has consented to Secre tary’s personnel contemporaneous nance of on a construction of standards (8) provide ^[******] proper plan Secretary reasonable merit basis to make individuals; assistance shall be sistance under the opportunity to do ...; that all individuals application ' to be promptness efficient ... ) as are necessary so, operation for medical as- furnished and that such to all found shall have gests for wishing eligible with Dry ployment Opportunity Comm’n v. Associated based on a founding pressed Congressional tice”). years EEOC’s contemporaneous construction of its (holding original Goods its consent to the Commission’s never Because and is Medicaid statute. that, statute, 823 n. Corp., permissible expressed where not contrary a regulation Congress’s intent, construction See disapproval is valid silence see Equal for fifteen clearly n. Chevron, 17,101 (1981) prac “sug Em it is ex U.S.C. (19) provide :¡: necessary plan will be in a manner for plicity of administration and the best interests care § 1396a(a) ^[*] care such services will be ^[*] to assure that (emphasis determined, safeguards may consistent services under ^[*] recipients; added). ^[*] as provided, eligibility and such ^[*] sim- be portation regulation ty); 467 U.S. at transportation regulation is transportation regulation represents a valid exercise (M.D.Tenn. 1974) (pre-Chevron No. Tennessee (W.D.Tex.), Smith v. Dep’t agency authority. 842-43, Feb.20, 1985 WL Vowell, aff'd, 504 F.2d 759 Health and 104 S.Ct. at 1985) case within was valid (stating F.Supp. concluding agency See Daniels v. Environment, 2781-82, *2 interpre (5th and n. 1 authori trans 152- Cir. statute). tation of transportation regulation is a valid rule-making authority exercise of the broad B. granted by 42 Secretary U.S.C. 1302(a).

§ Secretary explained, majority’s As Even if the correct, transportation approach “The is plaintiffs based were' "specify Secretary's (explaining why be must there will Brief at 5-7 necessary assuring transportation recipi- flexibility being states benefit from able to providers ents to and from scribe the methods that will be of services and de- provide transportation either as an administra- used”), relocated 431.53, activity, § tive 42 C.F.R. see 249.10(a)(5)(h) (1974), § to 45 C.F.R. relocated service, optional medical see 449.10(a)(5)(h) (1977), § finally to 45 slightly C.F.R. 440.170(a)). 1396d(a)(xi)(25) § and 42 C.F.R. revised relocated 45 C.F.R. 45,176, 45,188 Fed.Reg. 431.53 See 43 (1978) (reorganizing Medicaid "with- making any change”). out substantive regulation’ may create to with the an enforceable would have case still 1396a(a)(8). regulation.” as further defined under U.S.C. alone, provision, standing cre- This Furthermore, regulation at issue does right to medical assis- ates an enforceable majority’s that a admonition not violate the the first two plainly satisfies tance. It helps to an enforceable in- test because is the Wilder prongs of from right must not be “too far removed plaintiffs and is manda- benefit the tended to contrary, intent.” be- Congressional To Furthermore, tory the States.17 even agency’s transportation require- cause promptness” “reasonable is the term though contemporaneously originated ment 1396a(a)(8) vague,18 arguably statute, Congress effectively has founding eligible that “all in its command and definite regulation. consented See Associated be furnished “medical assis- n. Dry Corp., individuals” at 600 Goods 1396a(a)(8) judi- Therefore, would be Because n. 17. even tance.” S.Ct. at 823 framework, cially against a State that re- majority’s own right transporta- to to eligible medical assistance asserted an enforceable provide to fused 1396a(a)(8) § individuals, plainly and 42 tion under U.S.C. the C.F.R. prong of the test. 431.53. the third Wilder satisfies 1396a(a)(8) alone, § Thus, standing confers C. to plaintiffs right an enforceable the

medical assistance. Similarly, statutory provisions, the consid- transportation conjunction with ered in the Moreover, by Secretary, the determined an to regulation, right enforceable III.A, eligible supra see Part individuals the transportation under established Wilder transportation in order to obtain must have by majority. Although the test abandoned Transportation to and medical assistance. statutory provi- authorizing one of the providers an is thus essential from medical sions, together regula- with the considered right the to element of medical assistance. tion, three-part the needs to meet Wilder way, right the to another medical Stated plaintiffs in order for the to have an test right transporta- assistance includes the to right transportation, enforceable to all three tion.19 statutory provisions of the cited confer such a right. framework, majority’s the own Under

therefore, First, an statutory provision, each viewed right transportation. The statute itself conjunction implementing regula- to with right tion, plaintiffs. as- confers an enforceable to medical is intended benefit 1396a(a)(8), sistance, merely regulation requiring and the further Both medical assis- eligible to all right right promptly defines that to include tance to be furnished individuals, 1396a(a)(19), squarely requiring as- transportation. This meets the and pro- long surances that care and services will be majority’s that “so as the recipients’ right upon in a manner consistent with statute itself confers vided interests, merely plainly intended for the plaintiff, regulation a valid best and transporta- plaintiffs, of benefit of the and the further defines or fleshes out content conjunction necessary right, then the tion is to effectuate statute —‘in complete plaintiff 17. had enforceable col- See Pari III.C. infra lective-bargaining process agree to an arbi- and Albiston, (employing 7 F.3d at 267 But see provid- rights "if clause because such not tration regulation to of context”). “demarcate contours reason- many [the] "imminent in ed in so words” were ‘promptness’ able in the Title IV-A Act); National Labor Relations structure” of State, Golden Indeed, transportation from medical ("The right that been of a federal violation providers recipients’ receipt is so essential language implicit in a to be statute’s found right transportation medical services that the violation’of a is as much ‘direct structure implicit is in the statute Livadas v. itself. Cf. Bradshaw, 107, 132-34, clearly that is set as is the violation of statute.”). (1994) (concluding forth in the text of 129 L.Ed.2d 93 on purpose. Baggiano, grant federal moneys, Silver it must do so Cf. (11th Cir.1986) (concluding unambiguously.”). 1216-17 The State is thus bound necessary “ensure general transportation that Medicaid statute and “free for re- 1396a(a)(23), cipients provision, providers.” from choice” U.S.C. 42 C.F.R. § 431.53.21 particular intended to benefit Medicaid 1396a(a)(4), Similarly, § recipients). when Finally, interest plain- asserted together considered with the tiffs, statutory provisions as defined

regulation, plaint is intended to benefit implementing regulation, is not “too iffs.20 vague amorphous” enforce- Wilder, ment. Second, explained the Court statutory provisions imple may exist even where menting regulation binding establish a obli States have wide discretion: gation language the States.

statutory provisions That gives is the amendment the States sub- Moreover, mandatory, hortatory. stantial in choosing among discretion rea- grant money unambiguously of federal sonable of calculating methods rates may compliance conditioned on States’ these affect the standard under court provisions. (stating comply 1396c reviews rates with the suspend Secretary payments amendment, can where but does not render comply any provi does amendment unenforceable a court. State, §of where sion 1396a or admin While range there be a of reasonable rates, istering plan, comply substantially fails to certainly there are some rates out- provision); with such Pennhurst State side that range no State could ever cf. Halderman, 1, 17, Hosp. Sch. and 451 U.S. to adequate find be reasonable and under (1981) 67 694 L.Ed.2d the Act...'. [E]valuat[ing] a State’s find- (“[I]f Congress impose ings intends to respect condition to the reasonableness of Vowell, supra, Secretary 20. the court staled that the which contains the 16 listed features.” transportation regulation, necessary for the effi- 503 U.S. at 112 S.Ct. at 1367. Suter thus program, cient of the administration Medicaid appeared rights the to limit available directly plaintiffs' receipt was related to the programs Security under those of the Social Act services: Suter, however, plans. requiring State After fortiori, Secretary A it is clear that the of HEW Congress providing: enacted an amendment "In determined instant to be brought provision an action to enforce a of this necessary pro- of the administration chapter, such is not to be deemed (and sense) gram, for the obvious common in unenforceable because of its a sec- inclusion needy [sic] reason that obtain will not be able to chapter requiring plan tion of this State necessary timely medical care if required specifying plan.” contents State they getting are without means of to the Thomp- 42 See B. v. 1320a-2. Jeanine providers of the service. son, (E.D.Wis.1995) F.Supp. (citations F.Supp. quota at 150 and internal (stating previous that after 1320a-2 “the tests Thus, omitted). 1396a(a)(4) tions and 42 apply Wilder and Pennhurst regu C.F.R. differ 431.53 from the statute particulars plan whether or not the of a state can - by Blessing, lations considered the Court in beneficiaries”). by be enforced its intended at -, There, U.S. 117 S.Ct. at 1361. the Court Thus, Suter, prior required as was true ele- "many provisions, determined that like the 'sub plan standard, ments in a Stale can Medicaid establish compliance' designed only stantial Wilder, rights. guide systemwide substantive enforceable structuring in the State 512-15, enforcing support (citing obligations. efforts at U.S. at 110 S.Ct. at These 2518-20 provisions may ultimately Secretary’s authority benefit individuals 1396c withhold services, eligible who are for Title IV-D but non-compliance concluding funds for requirements, indirectly.” processing The data actually required adopt the State example, give did "not rise to individualized Silver, rates); adequate reasonable contrast, rights computer By services.” Id. (concluding at 1216-17 that “freedom of choice” recognized by Secretary by and affirmed State enforce- in established court, transportation regulation Vowell recipients) (quoting able Medicaid in directly issue here is related to the benefits re Ctr., Nursing O’Bannon v. 447 U.S. Town by plaintiffs. ceived 100 S.Ct. (1980)). Suter, Adoption the Court stated that the only required Assistance and Child Welfare Act approved that the "State have a Vowell, in in notably, the court Most district competence within the is well its rates ... summarily by the Fifth affirmed a decision judiciary. of the Circuit, predecessor concluded 110 S.Ct. Cf. virtually identical transportation regulation, at---, Blessing, one, capable existing was (concluding at 1361-62 enforcement: give did not staffing mandates regulatory regu- language instant readWe part rights, in rise to individualized unambiguous being ... as clear lation too to be vague enforce the .mandates command____ does [T]he in its able). “stipulate every possi- advance” have had wide as the States Wilder Just the situa- transportation since ble mode reasonable and ade- to establish discretion necessarily differ with each indi- will tion rates, so the States in quate reimbursement Nevertheless, the command vidual. determining discretion case wide have must be language is unmistakable —there transportation services to use types description primary inclusive some recipients.22 None- transporting Medicaid can reason- transportation modes theless, transportation regulation unam- contemplated to be ably be utilized. recipi- that all Medicaid biguously requires (citation omitted). F.Supp. at and from their transportation ents only pro- the State Vowell court found that shown the district court’s providers. As cir- transportation services in limited vided case, asserted in this interest order cumstances,24 beyond it was and thus “clear transportation regu- plaintiffs under peradventure all of doubt that the Texas easily enforceable. See Harris lation practice in both form as well as in State Plan (M.D.Ala.1995). James, F.Supp. 1120 compliance applicable Fed- is out of pro- court found that The district ” guidelines.... eral ... and transportation only very vides ambulance affirmed the Vo- Because Fifth Circuit circumstances, the State limited transpor- determination that the well court’s merely arrange helps to enforceable, judicially tation was charge through without that can be obtained find the this court should also groups or other sources. Id.

volunteer City Prich- be enforceable. See Bonner absolutely provi- 1132. “makes no The State Cir.1981) Ala., (11th ard, 661 F.2d transportation when sion for those occasions (en banc) (holding that all decisions fashion,” thus arranged cannot be prior Fifth Circuit handed Former down every eligible “fails to ensure 1, 1981, court); binding on this October transportation necessary individual will have Menendez, n. 739 & 4 Harris v. reim- for access to care under Medicaid (11th Cir.1987) summary (holding affir- bursement scheme.” binding district court to be under mance of courts, Bonner). authorizing Several other district The statute and the court, satisfy transportation well as at least one state also thus Wilder, transportation regulation.23 prong of test. third enforced the Manual, reprinted portation, designate state allowable State Medicaid 22.The ¶ 14,605.89, (CCH) transportation arrange Medicare & Medicaid Guide trans- modes part: at 6309-7 states in prepaid portation on or contract basis with regulations at companies. 42 C.F.R. 431.53 re- Federal quire transit necessary transportation to assure states recipients descrip- providers. Cohen, to and from A Morgan F.Supp. 23. tion to be used of the method of assurance (E.D.Pa.1987); Daniels, 1985 WL 1175-77 title must be included the state’s XIX state *1-*9; Stumbo, F.Supp. Fant v. plan. Transportation be covered either must Obledo, (W.D.Ky.1982); Bingham v. 618-19 requirements, under the state’s administrative Cal.Rptr. Cal.App.3d optional or as assistance, state item of medical an (Cal. 1983). Ct.App. or, may be included under both categories.... [T]ransporlation services provided only emergency ambu- claims reimbursement as an ad- a state hospitals transportation to and skilled lance subject expense ministrative are not Cal.Rptr. nursing at 155-57. facilities. provision. For trans- freedom-of-choice such statutory provisions and the Because an enforceable

regulation create three-prong Wilder

test, final is whether the Medic statute itself creates a remedial scheme

aid “sufficiently comprehensive ... congressional preclude intent to

demonstrate remedy for suits under 1983.” Middle County Sewerage Auth. v. Nat’l Sea

sex Ass’n, 1, 20,

Clammers

2615, 2626, 69 L.Ed.2d 435 Neither majority nor the State contends that a

sufficient remedial scheme exists here to remedy.25 plaintiffs §a

foreclose transporta

thus have an enforceable

tion, actionable under

IV.

Employing approach either the to enforce- rights proposed by majority

able or the

long-standing employed framework Court, I would hold that the Medic- statute, 1396a(a),

aid and the 431.53,

applicable regulation, 42 C.F.R.

confer transportation. respectfully

I therefore DISSENT.

PRODIGY NO. CENTERS/ATLANTA L.P.; Prodigy Centers No.

L.P., Plaintiffs-Appellees, ASSOCIATES, LTD., etc.,

T-C

Defendant-Appellee, America,

United States of

Defendant-Appellant.

No. 95-9448. Appeals, States

United

Eleventh Circuit.

Nov. majority 25. The notes that the Court in Wilder 1983.” 496 U.S. at 110 S.Ct. at 2523- rejected argument “Congress has fore- closed enforcement of the Act under Medicaid

Case Details

Case Name: Harris v. James

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 6, 1997

Citation: 127 F.3d 993

Docket Number: 95-6861

Court Abbreviation: 11th Cir.