Lead Opinion
The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act. It often grants Title X funding directly to a state, which in turn makes subgrants to family-planning service providers. Kansas is one such state.
In May 2011 Kansas Governor Sam Brownback signed into law an appropriations bill restricting the classes of entities eligible for Title X subgrants. It limits the recipients to public entities, hospitals, and federally qualified health centers that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). Planned Parenthood sued Governor Brownback and Robert Moser, M.D., in his capacity as the Secretary of the
Moser challenges the injunction on several grounds, most of which we need not address. As to the Supremacy Clause claim, we hold that Planned Parenthood cannot establish a likelihood of success on the merits because there is no private cause of action for injunctive relief for the alleged violation of Title X. Although Planned Parenthood and the dissent assert that the view we adopt is contrary to circuit precedent in Chamber of Commerce of U.S. v. Edmondson,
As to the First Amendment claim, we hold that Planned Parenthood cannot establish a likelihood of success because the legislation does not restrict the rights of speech or association of subgrantees and the motives of individual lawmakers are irrelevant.
After summarizing the relevant background of this case, we will set forth the reasoning behind our two holdings, distinguishing the cases relied on by Planned Parenthood and the dissent. We then vacate the preliminary injunction, reverse, and remand for further proceedings.
I. BACKGROUND
A. Overview of Title X
In 1970 Congress passed the Family Planning Services and Population Research Act (Act). See Pub.L. No. 91-572, 84 Stat. 1504 (1970). The Act’s stated purposes include “assisting] in making comprehensive voluntary family planning services readily available to all persons desiring such services.” Id. § 2,
Of particular relevance to this appeal, the Act amended the Public Health Service
to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).
42 U.S.C. § 300(a). Title X is relatively sparse, consisting of just a few short provisions. It mostly confers executive authority. It authorizes the HHS Secretary to make grants for various purposes related to family planning. See id. § 300(a) (family-planning project grants); id. § 300a(a) (formula grants to state health authorities); id. § 300a-l(a) (training grants); id. § 300a-2 (research grants); id. § 300a-3 (grants for educational materials). And it gives the Secretary authority to determine the amounts of grants, see id. § 300a-4(a), the conditions to which grants are subject, see id. § 300a-4(b), and whether projects satisfy the statutory eligibility requirements, see id. § 300a-4(c).
Under Title X, “[ljocal and regional entities shall be assured the right to apply for direct grants and contracts ..., and the Secretary shall by regulation fully provide for and protect such right.” Id. § 300(b); see also id. § 300a-4(a) (authority to promulgate regulations governing grants). The regulations thus provide that “[a]ny public or nonprofit private entity in a State may apply for a grant under this subpart.” 42 C.F.R. § 59.3. The regulations detail the application process and the requirements of a Title X project. See id. §§ 59.4, 59.5. HHS provides successful applicants with a “notice of grant award,” which informs the grantee how long HHS intends to fund the project before requiring the grantee to recompete for funding. Id. § 59.8. Although this period typically lasts three to five years, the initial grant is usually for only one year; the grantee must submit subsequent applications for “continuation awards” each year, subject to “consideration of such factors as the grantee’s progress and management practices, and the availability of funds.” Id.
Direct Title X grantees need not provide family-planning services themselves but may contract to have the services provided “by delegate/contract agencies operating under the umbrella of the grantee” (delegate agencies). U.S. Dep’t of Health & Human Servs., Office of Pub. Health & Sci., Office of Population Affairs, Program Guidelines for Project Grants for Family Planning Services § 6.1 (2001) (Program Guidelines). But the direct grantee remains “responsible for the quality, cost, accessibility, acceptability, reporting, and performance of the grant-funded activities provided by delegate/contract agencies.” Id.; see also Marilyn J. Keefe, Deputy Assistant Sec’y for Population Affairs, Dep’t of Health & Human Servs., Memorandum on Title X Grantee Compliance with Grant Requirements and Applicable Law 2 (March 1, 2011) (“Title X grantees are responsible for conducting periodic reviews of sub-recipient agencies, and must undertake immediate steps to address issues related to lack of compliance with established policies and procedures.”). Although Title X also authorizes direct federal grants to service providers, see Program Guidelines § 6.1, “[m]ost Title X funds flow initially to state and local governmental agencies and non-profit organizations [,
The Title X regulations cross-reference “HHS Department-wide regulations,” which apply to Title X grants. 42 C.F.R. § 59.10. The referenced regulations include 42 C.F.R. pt. 50 and 45 C.F.R. pts. 16, 74, and 92, which create an administrative scheme for HHS grants and cooperative state-federal funding agreements. The scheme, promulgated primarily under the general grant of authority to heads of executive agencies, see 5 U.S.C. § 301, provides for centralized executive enforcement of Title X. It states, “If a grantee or subgrantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may” temporarily withhold payments, disallow funding to cover the cost of the noncomplying activities, terminate the award, withhold further awards, or pursue other legally available remedies. 45 C.F.R. § 92.43(a). A grantee subjected to an adverse determination may request an informal review of the decision before the agency. See 42 C.F.R. §§ 50.404(a) (defining adverse determination), 50.405 (authorizing review committees to review adverse determinations), 50.406 (setting forth steps in administrative review process). A grantee may appeal an adverse final decision to the Departmental Appeals Board. See 45 C.F.R. §§ 16.3 (requirements for appeal to be heard by the board), 16.7-.8 (steps in initiating appeals process). And a grantee may seek judicial review under the Administrative Procedure Act (APA) of a final agency decision. See 5 U.S.C. § 704; see also 45 C.F.R. § 74.90(c)-(d) (requirements for final decisions in HHS disputes).
In Kansas, HHS grants Title X funds to the State, which distributes the funds to delegate agencies. The State applies directly to HHS for Title X funds through KDHE, which is the sole direct grantee in Kansas. ■ Most recently, KDHE submitted a competitive grant application on February 22, 2010, requesting funds for the five-year period from June 30, 2010, through June 29, 2015. KDHE applied for a continuation grant on March 21, 2011, and the notice of grant award was issued on June 27, 201Í. KDHE provides no family-planning services itself, but instead contracts with delegate agencies.
Before the events giving rise to this litigation, those delegate agencies included Planned Parenthood. Planned Parenthood had received Title X funds under contract with KDHE for over 25 years. Because KDHE included Planned Parenthood in its application for the 2010-15 grant, Planned Parenthood did not apply to HHS for a direct grant. Although Planned Parenthood does not provide abortion services at the Wichita and Hays clinics, which have been subgrantees, it provides the services in two clinics in Missouri and is affiliated with Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, which provides them in Overland Park, Kansas.
B. Section 107(1)
On May 28, 2011, Governor Brownback signed into law Senate Substitute for House Bill 2014, an appropriations bill containing the provision at issue. Section 107(Z) of the law provides:
During the fiscal year ending June 30, 2012, subject to any applicable requirements of federal statutes, rules, regulations or guidelines, any expenditures or grants of money by the department of*820 health and environment — division of health for family planning services financed in whole or in part from federal title X moneys, shall be made subject to the following two priorities: First priority to public entities (state, county, local health departments and health clinics) and, if any moneys remain, then, Second priority to non-public entities which are hospitals or federally qualified health centers that provide comprehensive primary and preventative care in addition to family planning services: Provided, That, as used in this subsection “hospitals” shall have the same meaning as defined in K.S.A. 65-425, and amendments thereto, and “federally qualified health center” shall have the same meaning as defined in K.S.A. 65-1669, and amendments thereto.
Aplt. App., Vol. I at 31 (30 Kan. Reg. 793 (June 9, 2011)).
All agree that the two categories of eligible entities under § 107(Z) do not include Planned Parenthood, an operator of private, specialized family-planning clinics. Accordingly, KDHE notified Planned Parenthood by letter dated June 14, 2011, that Title X funding would not be available in the upcoming fiscal year through its contract with KDHE. KDHE then sought or procured new or expanded contracts with other service providers satisfying the requirements of § 107(0 to serve the geographical areas previously served by Planned Parenthood, but the district court’s preliminary injunction in this litigation halted KDHE’s efforts.
C. Procedural History
On June 27, 2011, Planned Parenthood filed suit in the United States District Court for the District of Kansas seeking declaratory and injunctive relief. The complaint alleged three counts: (1) that § 107(Z) violates, and is therefore preempted by, Title X because it places eligibility restrictions on the receipt of funding in excess of and inconsistent with those imposed by federal law; (2) that § 107(Z) violates the First Amendment by penalizing Planned Parenthood for associating with abortion providers and advocating for access to abortion services; and (3) that § 107(Z) violates the Fourteenth Amendment by penalizing the provision of, and association or affiliation with, abortion services, thereby burdening the right to choose abortion. The complaint named as
On August 1, 2011, the district court granted a preliminary injunction. The court decided (1) that § 107(£) imposes eligibility requirements that render-it “certain that Planned Parenthood cannot successfully participate in Title X funds,” Aplt. App., Vol. Ill at 473 (Memorandum & Order at 24, Planned Parenthood of Kan. & Mid-Mo. v. Brownback, No. 11-2357-JTM (D.Kan. Aug. 1, 2011) (Mem. Op.)); and (2) that the purpose and effect of § 107(i) is to bar Planned Parenthood, “an entity associated with abortion[,] from the benefit of federal funding for which it would be otherwise eligible.” Id. at 480 (Mem. Op. at 31). It therefore ruled that Planned Parenthood had demonstrated a likelihood of success on the merits of its Supremacy Clause claim and its claim that § 107(() infringed on its constitutional rights of association. The court weighed the other three factors required for a preliminary injunction — the risk of irreparable injury to the plaintiff, whether the threatened injury outweighs the injury to the opposing party from an injunction, and whether the-injunction would be adverse to the public interest, see Awad v. Ziriax,
Moser filed an interlocutory notice of appeal challenging the preliminary injunction. He raises several grounds for reversal: (1) that neither a § 1983 action nor an equitable cause of action is available to raise Planned Parenthood’s Supremacy Clause claim;
II. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1292(a)(1), which authorizes ap
A. Supremacy Clause Claim 1. Likelihood of Success on the Merits
The district court agreed with Planned Parenthood that it had shown a likelihood of success on its Supremacy Clause claim. In the court’s view, “Congress foreclosed states participating in Title X from creating additional, narrower standards for application.” Aplt. App., Vol. Ill at 476 (Mem. Op. at 27). It explained that § 107(i) created such a standard, “completely excluding a class of entities who are otherwise qualified under federal law for Title X participation.” Id. at 477 (Mem. Op. at 28). Thus, it concluded, § 107(Z) “is in direct conflict with federal law and is unconstitutional.” Id. It therefore enjoined Moser from applying the statute.
Moser contests this ruling. He argues that § 107(i )’s scheme of prioritizing funding to public and full-service healthcare providers is consistent with the Congressional policy of facilitating the provision of services to low-income patients. He further argues that although Title X contemplates broad eligibility for direct grants, nothing in the statute prevents a direct grantee from imposing additional eligibility criteria for subgrants. And he insists that the State can simultaneously comply with both Title X and § 107(i). We need not reach those issues, however, because Mos-er prevails on another ground: Planned Parenthood lacks a cause of action to assert its claim for injunctive relief.
a. Cause of Action for Injunctive Relief
Planned Parenthood does not claim that its cause of action is under 42 U.S.C. § 1983. Nor does it claim that Title X expressly authorizes its suit. It relies solely on its contention that the Supremacy Clause itself gives it the right to seek an injunction against state or local law inconsistent with Title X.
We disagree. We hold that, regardless of whether § 107(0 is inconsistent with Title X, Planned Parenthood does not have a private cause of action for injunctive relief under the Supremacy Clause. Our reasons, which we discuss more fully below, can be summarized as follows: Whether to recognize a private cause of action for injunctive relief is a matter of statutory interpretation. And we cannot infer such a cause of action from Title X. HHS, the expert federal agency charged by Congress with administering Title X, has ample power to enforce the requirements of the law; private suits for injunc-tive relief can undermine the advantages of uniformity and expertise provided by HHS supervision; Title X does not clearly notify States that they are subject to such suits; implementation of § 107(2) does not constitute state enforcement action forbidding Planned Parenthood from acting as it wishes (as opposed to state action complying with legislation simply denying subsidies for that activity); and private suits for injunctions are not traditionally implied in statutes enacted under the Constitution’s Spending Clause, U.S. Const, art. I, § 8, cl. 1. The remedy for a State’s violation of
The Supremacy Clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const; art. VI, cl. 2. It declares that when state or local law conflicts with federal law, federal law prevails. It does not, however, tell us what that federal law is. This proposition may seem obvious, but the point might be overlooked when one considers what remedies are available under federal law.- A statute declaring what the substantive rule is does not necessarily endorse every potential remedy for violation of that rule. For example, a statute may not allow recovery of punitive damages, see, e.g., 42 U.S.C. § 2210(s) (Price-Anderson Act), may not allow damages for emotional distress, see, e.g., id. § 1997e(e) (restricting right of prisoner to recover damages for emotional or mental injury under 42 U.S.C. § 1983), or may not allow any damages at all, see, e.g., United States v. Johnson,
Planned Parenthood suggests that the Supremacy Clause requires that whenever a state statute conflicts with federal law, a private person harmed by the statute can obtain an injunction in federal court to prohibit the operation of the statute. True, there are occasions when such injunctions can be obtained. But not always. For example, under the doctrine established in Younger v. Harris,
Determining what remedies are available ‘for violations of a statute is a matter of statutory construction. Cf. Alexander v. Sandoval,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,....
(emphasis added); see Mitchum v. Foster,
The test can be more challenging when the federal statute does not create a personal right. We need not provide here a test to resolve in all circumstances when there is a cause of action for injunctive relief even though no personal right is created by the federal statute allegedly violated by the State. We need analyze only whether there is such a cause of action under Spending Clause legislation of the type involved here. Our analysis persuades us that Planned Parenthood has no cause of action under Title X to enjoin the application of § 107(Z).
First, in deciding whether Congress intended to create an injunctive remedy, we look to see what other remedies are available for violation of the federal law. When the law is Spending Clause legislation such as Title X, there is a powerful alternative remedy available to deter and sanction violations. Congress has appropriated money and, within limits, see Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -,
Second, we ask whether permitting private persons to seek injunctive relief for alleged violations of Title X would substantially interfere with the administration of the program by HHS. In our view, it would. HHS has deep experience and expertise in administering Title X, and the great breadth of the statutory language suggests a congressional intent to leave the details to the agency. Although Planned Parenthood may be confident that § 107(i) is inconsistent with Title X, HHS may disagree, completely or in part. Absent private suits, HHS can maintain uniformity in administration with centralized control. If private suits were allowed, however, interpretation of Title X could be
The advantages of such centralized, expert administration do not appear to be controversial and would be obvious to Congress. As the Supreme Court wrote in denying a private cause of action for damages under 42 U.S.C. § 1983 and the Family Educational Rights and Privacy Act, “It is implausible to presume that the same Congress [that created a centralized administrative enforcement scheme] nonetheless intended private suits to be brought before thousands of federal- and state-court judges, which could only result in the sort of ‘multiple interpretations’ the Act explicitly sought to avoid.” Gonzaga Univ. v. Doe,
Congress may well have wanted to make the agency remedy that it provided exclusive — both to achieve the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking and to avoid the comparative risk of inconsistent interpretations and misin-centives that can arise out of an occasional inappropriate application of the statute in a private action for damages.
Id. at 292,
The Medicaid Act commits to the federal agency the power to administer a federal program; the agency is comparatively expert in the statute’s subject matter; the language of the particular provision at issue here is broad and general, suggesting that the agency’s expertise is relevant; and APA review would provide an authoritative judicial determination. Allowing for both Supremacy Clause actions and agency enforcement threatens potential inconsistency or confusion, and imperils the uniformity that Congress intended by centralizing administration of the federal program in the agency....
Douglas v. Indep. Living Ctr. of S. Cal., Inc., — U.S.-,
Moreover, an important, and apparently desirable, feature of supervision of spending programs by federal agencies is the play in the joints — the flexibility— of administrative enforcement. State and local governments can negotiate compromises, even obtain waivers, from the federal agency. Courts have much more limited authority in that regard. This feature of administrative enforcement is of particular moment because of the special nature of Spending Clause legislation. In the federal-grant context, the State is more a partner than a subordinate of the
A third consideration is the nature of the harm suffered by the private person as a result of a violation of the federal statute. It is one thing if the State prohibits the person from engaging in conduct protected by the federal law. It is another if, as with § 107(i), the State only declines to subsidize the conduct. There is a qualitative difference between prohibiting an activity and refusing to subsidize it. The Supreme Court, for instance, has drawn that line in rejecting state laws prohibiting certain abortions but not laws refusing to provide funds for the practice. See Harris v. McRae,
Finally, we look to tradition. We assume that Congress enacts legislation aware of a judicial tradition interpreting similar statutes. For example, equitable tolling is generally read into a federal statute of limitations even when not expressed in the statute’s language. See Holland v. Florida,
We find significant support for our analysis in a recent Supreme Court dissent by Chief Justice Roberts, joined by three other Justices and not challenged by any other Justice on this point. In Douglas,
Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, would have decided that the plaintiffs lacked a cause of action. Noting that the statute did not authorize the suit, he explained that “as this case comes to us, the federal rule is that Medicaid reimbursement rates must meet certain criteria, but private parties have no statutory right to sue to enforce those requirements in court.” Id. at 1212 (Roberts, C.J., dissenting). He then concluded that the Supremacy Clause provides no cause of action. See id. He observed that unlike other constitutional provisions, the Supremacy Clause itself creates no federal rights, but merely “ensure[s] that, in a conflict with state law, whatever Congress says goes.” Id. Thus, he reasoned, it is not the role of the Supremacy Clause to supply a cause of action to enforce a federal statute if Congress did not intend to do so. See id. at 1212-13. To hold otherwise, he observed, “would effect a complete end-run around [the] Court’s implied right of action and [§ 1983] jurisprudence.” Id. at 1213. The Chief Justice found unavailing the plaintiffs’ appeal to “the traditional exercise of equity jurisdiction.” Id. For a court to recognize an equitable cause of action when Congress chose not to supply one, he argued, “would raise the most serious concerns regarding both the separation of powers (Congress, not the Judiciary, decides whether there is a private right of action to enforce a federal statute) and federalism (the States under the Spending Clause agree only to conditions clearly specified by Congress, not any implied on an ad hoc basis by the courts).” Id. The dissent’s reasoning is sound.
Turning to the specifics of Title X, the statutory scheme indicates that the reasons for not recognizing private actions for injunctive relief operate with full force. The statute clearly contemplates that grants will be administered under the supervision of HHS. It provides that “[g]rants under [Title X] shall be ... subject to such conditions as the Secretary [of HHS] may determine to be appropriate to assure that such grants will be effectively utilized for the purposes for which made,” 42 U.S.C. § 300a-4(b); it contains no provision for private enforcement; and it delegates authority to HHS to establish the regulatory scheme for enforcement, see 42 C.F.R. § 59.10; 45 C.F.R. §§ 74.62, 74.73, 92.43, 92.52. When a statute rests all enforcement authority in a federal agency, never mentioning the possibility of private litigation, the natural inference is that Congress favored centralized enforcement, with the courts getting involved only through the deferential oversight provided by the APA.
The Medicaid Act commits to the federal agency the power to administer a federal program; the agency is comparatively expert in the statute’s subject matter; the language of the particular provision at issue here is broad and general, suggesting that the agency’s expertise is relevant; and APA review would provide an authoritative judicial determination. Allowing for both Supremacy Clause actions and agency enforcement threatens potential inconsistency or confusion, and imperils the uniformity that Congress intended by centralizing administration of the federal program in the agency.... [I]n light of all this, ... the Supremacy Clause challenge appears at best redundant, and [the] continuation of the action in that form would seem to be inefficient.
In our view, Title X does not “display[ ] an intent to create” the remedy sought by Planned Parenthood under the Supremacy Clause. Alexander,
b. Distinguishing Planned Parenthood’s Cases
Planned Parenthood argues that our conclusion is contrary to binding precedent. But it cites to no decision of the Supreme Court or this court holding that when a state (or local) law is contrary to a federal statute not conferring a personal right, a person can bring a claim under the Supremacy Clause to enjoin operation of the state law even when (1) the federal law is Spending Clause legislation and (2) the state law does not subject the person to an adversary enforcement action prohibiting the person from engaging in particular conduct. Before showing why the decisions cited by Planned Parenthood are far from binding in this case, we discuss why we should distinguish cases in which the federal statute invoked is Spending Clause legislation and the person seeking injunc-tive relief is not facing an enforcement action.
It should be apparent from our prior discussion why courts should distinguish cases in which the allegedly preempting statute is Spending Clause legislation. In that circumstance the federal government’s power of the purse gives it a very effective means for ensuring that federal law is honored. The availability of that effective means makes it unnecessary to also recognize remedies (such as private suits for injunctive relief) that can interfere with important policies such as reb-anee on the experience and expertise of administrative agencies and uniformity of interpretation of the law. Additionally, when construing Spending Clause legisla
The reason to distinguish cases involving enforcement actions should also be apparent, but further explanation can be helpful. State and local laws prohibit a good deal of conduct, from selling narcotics, to driving over the speed limit, to disturbing the peace, to conducting a business without a license. If a person violates such a law, the government can commence adversary proceedings to impose sanctions for the violation. When we use the- term enforcement actions, we are referring to adversary legal proceedings by a government to impose such sanctions on conduct prohibited by law. Sometimes the prohibitory law is contrary to federal law. One remedy generally recognized in that circumstance is the availability to the accused of a defense in the adversary proceeding that the law allegedly violated is preempted by federal law. For example, in Thompson v. City of Louisville,
It is important to recognize, however, that even in this circumstance there may be exceptions. What if, for example, the federal statute prohibited its use as a defense? Say, Congress, in an effort to assist the trucking industry, enacted a statute providing that a State receiving federal highway funds could not impose a speed limit under 80 miles per hour on rural parts of interstate highways. Assume further that a federal agency could withhold highway funds from States that did not comply with the speed-limit requirement. To avoid confusion that could endanger those traveling on interstate highways, however, the statute included a proviso that forbade anyone from defending against a speeding ticket on the ground that the posted speed limit on a highway was below federal requirements. Could a driver still invoke the Supremacy Clause as a defense to enforcement of a state speed limit? Certainly not. The Supremacy Clause is the law, but it does not amend federal legislation to contradict congressional intent. Recognizing the driver’s defense would infringe the authority of Congress, not effectuate it. Congress obviously decided that its purposes could best be advanced by limiting the sanctions against contrary state laws to those provided by the power of the purse.
Nevertheless, we can generally presume that a person accused in a state or local enforcement action of engaging in prohibited conduct is entitled to defend against the charge on the ground that the conduct is protected under federal law.
Moreover, once the courts recognize a federal preemption defense to an enforcement action, allowing suits to enjoin state enforcement does not increase the risk of nonuniform interpretation of federal law. Yes, multiple courts will have the authority to interpret federal law in deciding whether to grant an injunction. But multiple courts already have the authority to interpret the federal law in deciding whether that law provides a preemption defense to state enforcement action.
It should be plain that the compelling reasons not to recognize a private cause of action for injunctive relief under Title X are inapplicable (or at least of much less weight) when a court is considering an injunction against a state or local enforcement action based on preemption by federal law not enacted under the Spending Clause. Unlike the present suit to enjoin § 107(0, such suits for injunctive relief are a component of what is probably the only means of effectuating the federal law (the combination of the preemption defense and injunctive relief); centralized uniformity of interpretation of the federal law is impossible (at least until a Supreme Court ruling); the state is prohibiting conduct, not just refusing to subsidize it; and the remedy is a traditional one.
We now turn to an examination of the cases that Planned Parenthood asserts to be binding precedent contrary to our conclusion. It is useful to begin with a lesson from Chief Justice Marshall on how to read precedent. He wrote:
It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent -suit when the very point is presented for decision.
Cohens v. Virginia,
The path of the law is not a straight line. It would be a wooden jurisprudence if every general statement by a court were set in stone. Every lawyer (and certainly every judge) knows that factual circumstances and arguments (that is, insights) may be presented that were not anticipat
Of course, revisions to precedents can be taken to extremes. Because no two cases are identical, we could always say we are not bound by precedent because of differences between the facts in the precedent and in the case before us. But there needs to be a good reason on which to distinguish a precedent. And the need for a good reason increases in proportion to the extent to which the precedent has analyzed and elaborated on the issue. By that standard, it is easy to see that in this case we are not bound by any precedent of the United States Supreme Court or this court. No binding opinion has addressed the factors that we find compelling in this case — the federal statute’s origin in the Spending Clause and the absence of an enforcement action. Indeed, in not one of the allegedly precedential decisions cited by Planned Parenthood was the existence of a Supremacy Clause cause of action for injunctive relief a disputed issue, and statements regarding the existence of such a cause of action (which appear in only a couple of the cases) were brief and not supported by substantial analysis.
We begin with the Supreme Court “precedents” cited by Planned Parenthood. Most striking, a number of these cases (unavailability of the records keeps us from knowing precisely how many) were brought under 42 U.S.C. § 1983, which independently provides a right to obtain injunctive relief, mooting whether the Supremacy Clause does the same. See Wilder v. Virginia Hospital Ass’n,
In other cited cases we cannot discern the source of the cause of action because the Court does not address the matter; certainly none of the opinions state that the source was the Supremacy Clause. In Arkansas Department of Health & Human Services v. Ahlborn,
Shaw v. Delta Air Lines, Inc.,
Finally, in Pharmaceutical Research & Manufacturers of America v. Walsh,
We note that the dissent also cites Franchise Tax Board v. Construction Laborers Vacation Trust,
The Supreme Court has told us that even on questions of jurisdiction, which courts always have a duty to consider, precedent is not established by the Court’s decision to hear a case if the Court does not address the issue of jurisdiction. See Steel Co. v. Citizens for a Better Env’t,
Turning to the decisions of this court, the earliest three opinions cited by Planned Parenthood as precedential did not address the possibility of causes of action under the Supremacy Clause. In Planned Parenthood v. Dandoy Ass’n of Utah,
That leaves us with the two of our opinions on which Planned Parenthood places its principal reliance: Edmondson,
Edmondson dealt with the issue in a footnote stating that one of the defendants had challenged the plaintiffs’ right to bring suit under 42 U.S.C. § 1983 but had not challenged the plaintiffs’ invocation of the Supremacy Clause. It then quoted Qwest as follows: “We have held that ‘[a] party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.’ ”
The discussion in Qwest was not significantly longer. It consisted of four conclu-sory sentences, citing decisions by two other circuits. See'id. at 1266. There was no need for any additional analysis because no one disputed the existence of a cause of action. In its reply brief on appeal, the City of Santa Fe argued for the first time that the district court lacked jurisdiction because there was no federal-question jurisdiction to hear the request for an injunction. The Qwest opinion dealt with the jurisdictional issue in a footnote. See
The statement in Qwest regarding a Supremacy Clause cause of action was not in response to a question raised by a party about whether a cause of action existed. No such question was raised. Rather, the statement appeared in a discussion addressing Qwest’s (losing) argument that it had a personal right under 47 U.S.C. § 253 that was enforceable under § 1983, so it could recover attorney fees under 42 U.S.C. § 1988(b). The statement was background used by the panel majority to argue that some comments by Senators in the Congressional Record did not indicate that the Senators intended to create a personal right. See
Ironically, our Qwest opinion recognized that the existence of a private right of action under a federal statute may be affected by whether the statute is Spending Clause legislation. In analyzing whether § 253 created a right enforceable through § 1983, we applied the test set forth by the Supreme Court in Gonzaga University v. Doe,
Again, Qwest had no occasion to consider whether there is a private cause of action for an injunction under the Supremacy Clause when the allegedly preempting statute is Spending Clause legislation and the injunction is not to halt enforcement
We do not dispute that Edmondson and Qwest are binding precedent for the contexts in which those cases arose. But the case before us, unlike Edmondson and Qwest, involves Spending Clause legislation. And Planned Parenthood is not facing a potential enforcement action — an adversary legal proceeding to impose a sanction for engaging in prohibited activity. After all, § 107(0 does not prohibit Planned Parenthood from doing anything. It does not say that all health-care providers must offer comprehensive care. It does not even prohibit those who do not offer comprehensive care from providing family-planning services. Planned Parenthood can continue to do so. The statute says only that the State will not subsidize family-planning services provided by those who do not offer comprehensive care.
Were we to say that Edmondson and Qwest, in which no party challenged the existence of a Supremacy Clause cause of action, are binding precedent that such a cause of action is available even in very different contexts, we would be unfaithful to Chief Justice Marshall’s maxim that “general expressions” in an opinion that “go beyond the case ... may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens,
2. Waiver
Planned Parenthood argues that Moser has waived the issue of wheth
In United States National Bank v. Independent Insurance Agents of America, Inc.,
It is not hard to find examples of appellate courts raising issues sua sponte, although sometimes the opinion does not mention that the court did so. An en banc Ninth Circuit recently pronounced that it “may consider an issue that has not been adequately raised on appeal if such a failure will not prejudice the opposing party.” United States v. Cotterman,
Sometimes it may even be improper not to consider an issue waived by the parties. Certainly when the opposing parties both agree that a contract is unambiguous (but they differ on the meaning), we should be able to decide otherwise. And we think it significant that Justice Stevens (joined by Justice Marshall) once wrote a dissent faulting the majority, which held that the Federal Arbitration Act (FAA) compelled arbitration of an employment claim, because it had not addressed the unraised (except by amici) question of whether the FAA extends to employment disputes, a question “clearly antecedent to disposition of this case.” Gilmer v. Interstate/Johnson Lane Corp.,
We are comfortable with the propriety of our addressing the cause-of-action issue. Whether there is a cause of action under the Supremacy Clause for injunctive relief is certainly a question antecedent to whether injunctive relief is proper in a particular case.
B. First Amendment Claim
The district court also granted Planned Parenthood a preliminary injunction against implementation of § 107(i) on the ground that it infringed Planned Parenthood’s First Amendment rights. This claim was brought under § 1983, so there is no dispute that Planned Parenthood has a cause of action. We therefore address the merits.
Moser challenges the preliminary injunction, arguing that § 107(Z) contains, on its face, nothing that discriminates based on speech or association. He contends that the law neither conditions eligibility for a Title X subgrant on the relinquishment of First Amendment rights, nor punishes entities for exercising such rights. Planned Parenthood argues in response that § 107(£) imposes an unconstitutional condition because it penalizes the exercise of Planned Parenthood’s rights “to associate with entities that provide abortions and to advocate for access to abortion services.” Aplee. Br. at 24. We agree with Moser.
We begin by stating our understanding of the unconstitutional-conditions doctrine. Under the “modern unconstitutional conditions doctrine ... the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit.” Bd. of Cnty. Comm’rs v. Umbehr,
First, the doctrine has been applied when the condition acts prospectively in statutes or regulations that limit a government-provided benefit — typically a subsidy or tax break — to those who refrain from or
Second, the unconstitutional-conditions doctrine has been applied when the condition acts retrospectively in a discretionary executive action that terminates a government-provided benefit — typically public employment, a government contract, or eligibility for either — in retaliation for prior protected speech or association. See, e.g., Umbehr,
Neither of these contexts is present here. The first is absent because nothing in § 107(Z) prohibits subgrantees — or even their officers or employees — from advocating abortion rights or associating with abortion providers. Nor does any advantage accrue to a potential recipient by its advocacy against abortion. Planned Parenthood could qualify under the statute if it expanded its services to satisfy the requirements to be an FQHC. It does not dispute that, on its face, § 107(Z )’s scheme of prioritizing funding to public entities and full-service healthcare providers does not discriminate in funding based on a potential recipient’s speech or association.
Rather, Planned Parenthood attempts to fit its claim within the second category of cases, those in which a person is penalized by discretionary executive action for prior speech or association. It asserts that § 107(Z) violates the First Amendment “by imposing a penalty on [Planned Parenthood’s] association or affiliation with, abortion services.” Aplt. App., Vol. I at 21. And to show that § 107(Z) imposes a penalty, it attempts to show the motive for enactment of the measure. It points to the following evidence: (1) a declaration by a Planned Parenthood employee that she heard members of both houses of the Kansas legislature refer to § 107(Z) as the “ ‘Planned Parenthood’ provision” and heard Representative Lance Kinzer, who introduced the measure, confirm during floor debates that it “was designed to de-fund Planned Parenthood,” id. at 62-63; (2) a press release from Kinzer’s office
But Planned Parenthood cites no Supreme Court or Tenth Circuit authority for expanding the second category of unconstitutional-condition cases — those in which adverse discretionary executive action was motivated by the plaintiff’s speech or association — to legislative enactments. Indeed, we are bound by Supreme Court precedent not to consider the motives of lawmakers to determine whether legislation that imposes no burden on speech (or expressive conduct) or association was enacted to penalize speech or association.
United States v. O’Brien,
O’Brien is best known for setting forth the test for determining the constitutionality of a statute that restricts expressive conduct. See id. at 377,
But the Court then considered the argument that the statute was unconstitutional because Congress’ “purpose” was “to suppress freedom of speech.” Id. at 382-83,
Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled crite*841 ria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.
Id. at 383-84,
As' here, the plaintiff in O’Brien relied primarily on the statements of three lawmakers, the only ones to speak diming floor debate. But the Court downplayed the importance of the statements, saying that “[t]here was little floor debate on [the challenged] legislation in either House,” the statute having passed after only a “brief statement” by one senator and statements by two congressmen. O’Brien,
We recognize that the Supreme Court has considered legislative motive or purpose in assessing whether a statute is valid under the Establishment Clause and the Equal Protection Clause. See Edwards v. Aguillard,
On the contrary, after the decisions cited in the prior paragraph the Supreme Court has reiterated in the context of a First Amendment retaliation claim that a court cannot inquire into a legislator’s motives. Bogan v. Scott-Harris,
In Bogan the government conduct was quite similar to that in Umbehr, except that the alleged retaliation took the form of legislation rather than executive action. The city had adopted an ordinance eliminating the city’s Department of Health and Human Services, of which plaintiff was the sole employee. Plaintiff alleged that her department was eliminated in retaliation for her filing a complaint against another city employee, an action protected by the First Amendment. In ruling that the defendant mayor and city councilor were protected from liability by absolute legislative immunity, the unanimous Court noted that it “is ‘not consonant with our scheme of government for a court to inquire into the motives of legislators.’ ” Bogan,
Even if we were not bound by O’Brien and Bogan, we would be most reluctant to expand the statutory-motive cases to the arena of freedom of speech and association. The implications of doing so are daunting. Planned Parenthood’s theory raises the prospect of every loser in a political battle claiming that enactment of legislation it opposed was motivated by hostility toward the loser’s speech. That is essentially what Planned Parenthood argues here. Planned Parenthood favors abortion rights. At least some influential Kansas lawmakers take a contrary view. If they act on that view to favor legislation opposed by Planned Parenthood, is the statute to be struck down as violating Planned Parenthood’s First Amendment rights? If Congress imposes a tax on oil companies, is the tax to be voided because
We hold that Planned Parenthood’s First Amendment claim lacks merit.
III. CONCLUSION
We REVERSE and. REMAND to the district court with instructions to vacate its preliminary injunction and proceed consistently with this opinion.
Notes
. On June 1, 2012, Kansas Governor Sam Brownback signed into law Section 82(k) of House Substitute for Senate Bill No. 294, a funding provision that reenacted the restrictions on Title X funding contained in Section 107(1), applying it to the upcoming fiscal year. See 2012 Kan. Sess. Laws 2022; 31 Kan. Reg. 861 (June 7, 2012). On June 29, 2012, the district court extended its preliminary injunction to apply to and enjoin enforcement of Section 82(k). The appeal of this injunction is case No. 12-3178. On June 28, 2013, the district court again extended its preliminary injunction, this time to apply to and enjoin enforcement of Section 131(k) of Senate Bill No. 171, passed by the Kansas legislature in 2013. The appeal of this injunction is our case No. 13-3175. These two appeals have been consolidated with the appeal of the Section 107(1) injunction in case No. 11-3235; our reasoning applies to all three appeals.
. As noted in Part 11(A)(2) .below, there is a substantial question whether Moser adequately raised in his original briefs the argument that Planned Parenthood lacks a cause of action for injunctive relief based on alleged violations of Title X. Nevertheless, this court requested and received supplemental briefs on the matter and, as explained in Part 11(A)(2), properly considers it.
. We note that Planned Parenthood has not identified any enforcement action that could be taken against it in which it could defend on the ground that § 107(Z) is preempted by fedéral law.
. The district-court injunction at issue in Edmondson involved three provisions of the Oklahoma Taxpayer and Citizen Protection Act of 2007. First, it enjoined the Oklahoma Attorney General from enforcing Section 7(B), which prohibited a contractor from contracting with a public employer unless it used a particular system to verify eligibility. We reversed that portion of the injunction. ' See Edmondson,
. Qwest's complaint alleged, and the City’s answer admitted, that failure to comply with the Santa Fe ordinance would subject Qwest to criminal and civil penalties. See Compl. (Qwest v. City of Santa Fe, No. CIV 00 795 LH (D.N.M. June 1, 2000)), and City of Santa Fe’s Answer to PL’s Compl. dated June 1, 2000 {id., June 22, 2000). The context of the case is important. Qwest had a state license requiring it to serve anyone requesting service within Santa Fe and forbidding it from terminating service without state-agency permission. See Qwest Corp. v. City of Santa Fe,
. The dissent says that Qwest is like this case in that Qwest could have sought review under the APA. Perhaps Qwest could have found a way to obtain a final order from the FCC that would have been reviewable under the APA. But that consideration was never addressed by the court and parties in Qwest. Indeed, Qwest appears to agree with two circuit decisions cited by the opinion as stating that the FTC does not have authority to enforce preemption claims relating to local-government management of public rights-of-way, the very type of preemption claim raised in Qwest. See
. The dissent cites ten opinions from other circuits as support for a preemption cause of action for injunctive relief. But none weaken our analysis. Pharmaceutical Research & Manufacturers of America v. Concannon,
. The dissent seems to suggest that the only issues that can be termed "antecedent” are jurisdictional issues. But the issue raised by Justice Stevens’s dissent in Gilmer was quite similar to the issue here — whether the Federal Arbitration Act created a cause of action in the context of employment disputes. See
. Planned Parenthood cites cases inquiring into legislative history to interpret a statute, arguing that these cases support consideration of legislative background here. We find these cases unpersuasive. As noted above, the Supreme Court observed in O’Brien:
When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the*842 purpose of the legislature, because the benefit to sound decision-making in this circumstances is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it.
. Tenney, like Bogan, was a legislative-immunity case. But Tenney gave as the ultimate source for the proposition the early case of Fletcher v. Peck,
Dissenting Opinion
dissenting.
I dissent.
Litigants and the public at large are entitled to receive decisions from our court rooted in precedent and based on rigorous analysis of the parties’ submissions. Today’s decision meets neither test. Instead, the majority conveniently defenestrates controlling precedent and proceeds on substituted premises. This behavior is particularly unjust because the very rule that the majority would scuttle was conceded by the parties as controlling.
This dissent proceeds in two parts. Part I addresses the case as presented by the parties in their briefing before our court. It speaks to the issues brought to us by the parties for our resolution and argued to our panel. Part II addresses the arguments of my majority colleagues in support of the issues of their own irregular creation and about which they sought additional briefing over my objection.
In initial briefing, all parties acknowledged that Planned Parenthood possesses a cause of action under the Supremacy Clause. The holdings of this court required such an acknowledgement. In his opening brief, Moser cited Qwest Corp. v. City of Santa Fe,
I ought not need remind my colleagues that a panel of this court lacks authority to overrule the decisions of prior panels. United States v. Meyers,
I
A
In Qwest Corp., we held that “[a] party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.”
Qwest “sought to install” new telecommunications equipment on a city-owned right-of-way, but after learning that the new ordinance would require a lease for that project and “any use of the City’s rights-of-way,” the company withdrew its application and filed suit in federal district court. Id. at 1262-63. Qwest claimed that various provisions of the ordinance were preempted by 47 U.S.C. § 253, which provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” § 253(a). The statute further provides-that if the Federal Communications Commission (“FCC”) “determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) ... the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.” § 253(d).
The panel in- Qwest Corp. concluded that we had federal question jurisdiction because “ ‘[a] plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which', by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.’ ” Qwest Corp.,
Qwest Corp. considered whether the district court erred in concluding that § 253 'did not evince congressional intent “to create a federal right to be free of local laws
Although we held that § 253 did not “create[] a right enforceable through 42 U.S.C. § 1983,” Qwest Corp.,
A federal statutory right or right of action is not required where a party seeks to enjoin the enforcement of a regulation on the grounds that the local ordinance is preempted by federal law. A party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.
Id. at 1266 (citations and footnote omitted).
On considering the merits of Qwest’s direct Supremacy Clause claims, we affirmed the district court’s ruling that many of the ordinance’s provisions were preempted by § 253. Although bare registration and lease requirements were not per se “prohibitive” under § 253(a), Qwest Corp.,
B
It having been acknowledged by the parties that the cause of action at issue was firmly controlled by circuit precedent, our analysis should have proceeded directly to the merits of Planned Parenthood’s Supremacy Clause claim. Remarkably, the majority did not reach the merits. I would hold that Planned Parenthood possesses standing, has established a likelihood of success on the merits of its claim, and is entitled to a preliminary injunction.
In Bond v. United States, — U.S.-,
As did Bond, Planned Parenthood seeks to vindicate its own interests in contending that Section 107(Z) “upset[s] the constitutional balance between the National Government and States.” Bond,
The district court determined that Planned Parenthood “has demonstrated convincingly the existence of an injury which may be effectively addressed only by granting the injunction sought.” This finding is entitled to deference and is supported by ample record evidence. Planned Parenthood alleges that Section 107(Z) caused its Wichita and Hays health centers to lose more than $330,000 in funding, will end their eligibility for a low-cost drug-purchasing program, and will likely lead to declines in staffing levels and the closure of the Hays health center. Thus, Planned Parenthood has suffered concrete harm. These injuries are particular because the funding cuts apply only to Planned Parenthood.
Moser cannot rely on Wilderness Society v. Kane County,
C
Under our federal structure, “state law is nullified to the extent that it ... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,
Title X establishes a broad eligibility standard for grantees, allowing “[a]ny public or nonprofit private entity” to apply for Title X funds. 42 C.F.R. § 59.3. In
When other circuits have examined state laws that impose heightened Title X eligibility requirements, they have concluded that such provisions violate the Supremacy Clause. See Planned Parenthood of Hous. & Se. Tex. v. Sanchez,
Section 107(i) is similarly inconsistent with the terms and conditions that Congress and the Department of Health and Human Services (“HHS”) established in allowing KDHE to receive Title X funding. Even without considering Section 107(i)’s underlying purpose, the provision excludes an entire category of providers from eligibility, contravening the federal command that “[a]ny public or nonprofit private entity” may apply for Title X funds. 42 C.F.R. § 59.3. Section 107(Z) directs Title X funding to public entities and then, “if any moneys remain,” to non-public hospitals or federally qualified health centers. 2011 Kan. Sess. Laws 2020. The provision does not mention non-public facilities that solely provide family planning services, such as Planned Parenthood, nor does it provide that, “if any moneys remain” after funds are distributed to non-public hospitals or federally qualified health centers, Title X funding may be distributed to nonpublic family planning providers. Implicitly, such entities.are barred from applying for funds, contrary to 42 C.F.R. § 59.3.
Record review fully supports the district court’s conclusion that Section 107(l) “effectively block[s]” and “exclu[des]” Planned Parenthood from participating in KDHE’s Title X program. Immediately after Section 107(i) was passed, Planned Parenthood was informed that “[d]ue to recent legislative action funding is no longer available for your organization.” KDHE sought alternative subgrantees only after terminating Planned Parenthood’s contracts. Further, KDHE acknowledges that at the time the preliminary injunction was granted, it had not contracted with or located sufficient facilities to replace Planned Parenthood’s service offerings. There is no record evidence that Planned Parenthood’s funding was terminated because KDHE ran out of Title X funding; rather, KDHE had imposed a policy of wholly excluding Planned Parenthood from obtaining Title X funds. We thus are not presented with the hypothetical scenario under which an agency merely prioritizes funding pursuant to a blanket rule. Both the text and the actual implementation of Section 107(i) demonstrate a categorical bar on eligibility for Planned Parenthood.
But Title X’s enacting statute and implementing regulations recognize that entities affiliated with abortion providers may participate in Title X projects as long as Title X funds are not used for abortion programs. 42 U.S.C. § 300a-6; 65 Fed.Reg. at 41,275-76. Section 107(Z)’s goal of disqualifying organizations associated with abortion providers contravenes federal regulations that allow abortion providers and their affiliates to participate in Title X.
Regardless of the statute’s purpose, the text of Section 107(i) and KDHE’s manner of implementing it violate 42 C.F.R. § 59.3 by categorically barring entities such as Planned Parenthood from Title X funding. The district court’s conclusion that Planned Parenthood is likely to prevail on its Supremacy Clause claim is thus fully supported by the record and applicable law, and should be affirmed.
Planned Parenthood has demonstrated that the remaining preliminary injunction factors weigh in its favor. See Winter v. Nat’l Res. Def. Council,
The record firmly supports the district court’s conclusion that Planned Parenthood “is likely to suffer irreparable harm in the absence of preliminary relief.” Id Plaintiff attests that Section 107(1) caused its health centers to lose more than $380,000 in funding, will end their health centers’ eligibility for a low-cost drug purchasing program, and will likely lead to declines in staffing levels and the closure of one center. Furthermore, Planned Parenthood cannot apply directly to HHS for Title X funding until the next project period begins in 2015. See, e.g., 42 C.F.R. § 59.8(a).
I also agree with the district court’s conclusion that “the balance of equities tips in [Planned Parenthood’s] favor.” Winter,
Finally, I would also affirm the district court’s conclusion that an injunction is “in the public interest.” Winter,
II
A
Instead of undertaking the foregoing analysis, the majority sua sponte announced its skepticism that precedent acknowledged as controlling by all litigants was actually controlling. Over my objections, my colleagues then sought supplemental briefing on two issues not dis
The majority is correct that waiver is not a jurisdictional bar. But that does not mean it is something to be tossed aside when two judges “are comfortable with the propriety” of addressing a given issue. (Majority Op. 888.) “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” NASA v. Nelson, — U.S.-,
The majority pretends that the waiver issue is debatable, stating that Planned Parenthood “may be correct” that the issue was waived. (Majority Op. 836-37.) It is well established that we do not address arguments an appellant does not assert in its opening brief. See Gaines-Tabb v. ICI Explosives, USA, Inc.,
This rule carries particular force in the context of affirmative waiver. “A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.” Wood v. Milyard, - U.S. -,
B
The majority’s call for additional briefing constitutes nothing more and nothing less than an attempt to find a way to distinguish Qwest Corp. Having received briefing on the subject, my colleagues invent and apply a four-part test for determining whether the Supremacy Clause “authorize[s] an injunction against ... state action.” (Majority Op. 817.) Two elements of the four-part test rely on precisely the sort of statutory interpretation that this court has already held is not part of the analysis for determining whether a plaintiff may proceed directly under the Supremacy Clause. The fourth element, the absence of an “enforcement action,” {id. at 817), was also present in Qwest Corp. and thus fails to distinguish our controlling circuit precedent. This leaves the majority’s third element, Title X’s status as Spending Clause legislation. Numerous courts have already held this to be a distinction without a difference. The majority also argues (though it does not incorporate the claim into its assumedly controlling four-part standard) that potential APA remedies are a relevant consideration. (Majority Op. 824-26.) But this asserted dissimilarity also fails because the plaintiffs in Qwest Corp., as in this.case, might have sought a remedy by suing a federal agency under the APA.
1
The majority repeatedly asserts that “[wjhether to recognize a private cause of action for injunctive relief [under the Supremacy Clause] is a matter of statutory interpretation.” (Majority Op. 822; see also id. at 817, 823.) Specifically, the majority says that to determine whether a cause of action exists under the Supremacy Clause we must decide whether “the statute ... specifically authorize^] injunc-tive relief’ and whether “the statute ... create[s] an individual right.” (Id. at 817.) This newly conjured test cannot be squared with our precedent. After evaluating the federal statute at issue in Qwest Corp., we concluded that “nothing in the text or structure of [the statute at issue] indicates an intention to create a private right.”
Engaging in an unwarranted exercise in statutory interpretation, the majority announces that plaintiff lacks a cause of action under the Supremacy Clause because “Title X does not ‘display[] an intent to create’ the remedy sought by Planned Parenthood.” (Majority Op. 828 (quoting Alexander v. Sandoval,
As we explained in Qwest Corp., however, an implied right of action is distinct from a Supremacy Clause claim: “ ‘A claim under the Supremacy Clause simply asserts that a federal statute has taken away local authority to regulate a certain activity. In contrast, an implied private right of action is a means of enforcing the substantive provisions of a federal law.’ ”
2
My colleagues also argue that Qwest Corp. is distinguishable because Planned Parenthood, unlike Qwest, cannot be subjected to an “enforcement action” arising from § 107(i). (Majority Op. 834-35.) This assertion misconstrues Qwest Corp., which enjoined several provisions of a local ordinance that could not have led to an enforcement action.
The majority cites the dispositional section of the district court opinion we reviewed in Qwest Corp., (Majority Op. 835 n. 5), which enjoined Santa Fe and its agents “from taking any enforcement action against Qwest Corporation” based on certain preempted provisions. Qwest Corp. v. City of Santa Fe, 224 F.Supp.2d. 1305, 1332 (D.N.M.2002). From this, I am led to presume that the majority would hold that if a district court enjoins enforcement, enforcement is possible under the statute.
But that cannot be right, because the district court opinion on review today orders the following: “[T]he defendants are hereby enjoined from any further enforcement or reliance on Section 107(Z) of H.B. 2014.... ” Planned Parenthood of Kan. &
A review of the provisions enjoined in Qwest Corp. makes it pellucid that an enforcement action would have been logically impossible. The majority incorrectly suggests that Qwest only wanted , to “continue[ ] to provide telecommunications service as it had in the past.” (Majority Op. 835 n. 5.) Instead, the dispute began when “Qwest sought to install a four-by-four foot utility cabinet on a twelve-by-eighteen foot concrete pad on a city-owned right-of-way.” Qwest Corp.,
For example, the requirement that telecommunications companies provide the city certain, information as part of the registration process logically cannot be “enforced” against the company in an “action” as the majority uses those terms. And Qwest could not possibly raise preemption of the information requirement as a “defense” in an “enforcement action.” If Qwest failed to provide the information, it simply would be ineligible for a government benefit: the opportunity to lease city-owned rights-of-way. The majority fails to provide a scenario under which the city might “enforce” this provision in a coercive action that would place Qwest in a posture to raise preemption as a defense. Similarly, the Qwest Corp. panel barred enforcement of the double-conduit and appraisal-based rental requirements in the Santa Fe ordinance.
My colleagues do not explain how the preempted provisions of the Santa Fe ordinance could have given rise to an enforcement action, or how preemption of the ordinance could possibly serve as a defense. If Qwest violated the terms of its license by failing to provide service, it might have raised some sort of impossibility defense in regulatory proceedings to explain its failure, but a claim that the ordinance is preempted would not invalidate the regulations requiring service provision. Alternatively, I suppose, Qwest could have simply trespassed on a city-owned right-of-way and installed new telecommunications facilities. In that circumstance, it may have been subject to sanctions for trespass, but again, the challenged provisions of the ordinance would not form the basis of such an action and a
The Qwest Corp. opinion specifically held that “the issue of pre-emption is not an anticipated defense, but is the basis for a federal claim in Qwest’s complaint in federal court.”
Because Qwest was not defending against a threatened enforcement action, its position is precisely analogous to that of Planned Parenthood. The majority says “Qwest’s concern was that Santa Fe was effectively prohibiting it from providing telecommunications service.” (Majority Op. 835 n. 5.) Similarly, Planned Parenthood’s concern in this case is that Kansas is effectively “preventing] Planned Parenthood from participating in the Title X program.” (Planned Parenthood Answer Br. 2.) In both cases, a local law denies what federal law guarantees. Both plaintiffs sought to access government benefits but were thwarted by a law that conflicts with a federal statute. Both advanced a cause of action directly under the Supremacy Clause to redress their grievances. Both requested an order enjoining enforcement of the allegedly preempted law: Qwest sought “an injunction to prevent the enforcement” of Santa Fe’s ordinance, Qwest Corp.,
Moreover, Qwest Corp. was not this court’s final word as to the existence of a Supremacy Clause cause of action. In Chamber of Commerce of the United States v. Edmondson,
The majority’s claim, that Planned Parenthood, unlike Qwest' and the Chamber of Commerce, faces no “enforcement action” arises from a semantic contortion. I am reminded of Justice John Marshall Harlan’s guidance: “[AJlmost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. I do not, however, consider it a provident use of the time of this Court to coach what amounts to little more than verbal calisthenics.” Cole v. Richardson,
3
Having failed to distinguish Qwest Corp. on three of the elements identified in its novel test, the majority suggests that our circuit has not found that a Supremacy Clause cause of action exists if the “federal law [at issue] is Spending Clause legislation.” (Majority Op. 828.) The Supreme Court has stated that “legislation enacted pursuant to the spending power is much in the nature of a contract.” Pennhurst State Sch. & Hosp. v. Halderman,
Four circuits have considered the argument that Spending Clause legislation is fundamentally different from other legislation for Supremacy Clause purposes. None found any merit in the argument.
In Westside Mothers v. Haveman,
The Fifth Circuit adopted the Sixth Circuit’s Westside Mothers reasoning in Frazar v. Gilbert,
In Missouri Child Care Ass’n v. Cross,
Finally, in Antrican v. Odom,
Today’s majority might respond that these cases are distinguishable because they were brought under statutes enforceable utilizing § 1983.
The majority’s sole support for its extreme proposition is its citation to dicta in Pennhurst I. In addition to the foregoing circuit court holdings, the Supreme Court itself has cautioned against over-reading the Pennhurst I analogy, noting that it “do[es] not imply, for example, that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.” Barnes v. Gorman,
Moreover, the majority’s contention that states have not consented to suits to enjoin ongoing violations of federal law is a dramatic and unwarranted expansion of the principles announced in Pennhurst I. (See Majority Op. 825-26.) In that case, the Court noted that the $1.6 million grant provided under the Spending Clause legislation at issue was “woefully inadequate to meet the enormous financial burden” of the alleged conditions attached to that grant. Pennhurst I,
The Court has stressed the unanticipated financial liability rationale as fundamental to its Spending Clause jurisprudence. With respect to “legislation enacted pursuant to Congress’ authority under the Spending Clause ... private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Davis v. Monroe Cnty. Bd. of Educ.,
In light of these cases, I am baffled by the following assertion by the majority: “Presumably the Qwest court would not have thought it untoward to consider whether to distinguish Spending Clause legislation from other legislation with regard to whether it created a cause of action for damages. The same should be true for a cause of action for injunctive relief.” (Majority Op. 834.) In the context of Spending Clause legislation, the Supreme Court has clearly explained that unanticipated financial liability through private damages actions is paramount in determining whether a state may be sued. The possibility of injunctive relief does not implicate the same concerns. Immediately after the text quoted by the majority, (Majority Op. 825-26), the Pennhurst I decision explains, “in return for federal funds, the States agree to comply with federally imposed conditions.”
4
The majority also suggests that the potential availability of a remedy under the APA should make us reluctant to consider a Supremacy Clause challenge. (Majority Op. 824-25.) This is, to put it mildly, an invented claim that finds no support in precedent or practice. The majority cites Gonzaga,
If the availability of APA review were a relevant factor in determining whether a cause of action under the Supremacy Clause exists, Qwest Corp. itself would have been decided differently. In that case, Qwest argued that the Federal Telecommunications Act, specifically 47 U.S.C. § 253, preempted the local ordinance at issue. That statute includes the following provision:
If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or*859 legal requirement to the extent necessary to correct such violation or inconsistency.
§ 253(d).
Section 253(d) grants power to the FCC; presumably an action filed under the APA to compel the FCC to “preempt the enforcement of such statute,” id., would have been available to Qwest. Such an action would have promoted “[t]he advantages of ... centralized, expert administration.” (Majority Op. 825.) The Qwest Corp. panel expressly acknowledged other courts’ holding “that 47 U.S.C. § 253(d) calls on the [FCC] to enforce 253(a) and 253(b).”
Today’s majority cites Chief Justice Roberts’ dissent in Douglas for the proposition that “[allowing for both Supremacy Clause actions and agency enforcement threatens potential inconsistency or confusion, and imperils the uniformity that Congress intended by centralizing administration of the federal program in the agency-” (Majority Op. 825.) I am sure my colleagues are well aware that dissents, even those “not challenged by any other Justice on [a particular] point,” (id. at 826), and even those whose reasoning the majority finds sound, (id. at 827), are not law. To my knowledge, no court has ever held that the hypothetical possibility of bringing a suit against an agency under the APA forecloses a litigant from bringing an entirely different suit against a state or a municipality. The majority certainly does not direct the reader to any such case, nor does it suggest that the text of the APA provides any support for its position. And because this entirely novel factor was also present in Qwest Corp., it provides the majority no shelter.
In its eagerness to jettison the binding holding of Qwest Corp., the majority omits a series of cases that undermine its assertion that a Supremacy Clause action is unavailable because “statutory requirements should be enforced through the administering agency.” (Majority Op. 828.) In Seminole Tribe v. Florida,
C
The majority’s asserted rationales for distinguishing Qwest Corp. and Edmondson are unavailing. But I am also troubled by the way the majority opinion would undermine the precedents of the Supreme Court and our court to reach its conclusion. I fear that today’s opinion creates a dangerous norm that will allow future litigants to undermine and re-litigate issues once thought to be settled law, depriving the public of the “evenhanded, predictable, and consistent development of legal principles.” Payne,
1
To justify its conclusion that neither Qwest Corp. nor Edmondson binds this panel, the majority writes: “In neither was the existence of a Supremacy Clause cause of action disputed.” (Majority Op. 833.) The majority characterizes our holding in Qwest Corp. as “four conclusory sentences, citing decisions by two other circuits.” (Id. at 834.) It adds, “[tjhere was no need for any additional analysis because no one disputed the existence of a cause of action.” (Id. at 834.) And because Edmondson simply applied the rule articulated in Qwest Corp., its discussion of the cause of action issue was even barer. The majority infers from -the brevity of these discussions that they failed to “definitively resolve[ ] the issue before us.” (Id. at 833.) With no small degree of hubris, the majority opinion suggests that the Qwest Corp. panel improperly reached out to decide an unargued issue. (But see Majority Op. 822-36.)
But to make that conclusion, my colleagues must rely not on the published opinions of this court or the Court, but instead (erroneously, see Part II.C.2, infra) on the briefs and pleadings of the parties in earlier decided cases, (see Majority Op. 833, 835 n. 5). Neither Qwest Corp. nor Edmondson indicates that the cause of action issue was undisputed; the majority makes this claim based on an incorrect reading of briefs filed in those cases. This approach does violence to any reasonable conception of precedent and potentially undermines countless decisions of this court. The existence of a cause of action in Qwest Corp. was unambiguously decided by the panel. A later panel is not entitled to announce — based entirely on its reading of the briefs in a previous case— that a holding is invalid. Such an ap
A person seeking to understand the law in this circuit should not have to read briefs in already decided cases to capture the meaning of a published opinion of our court. When a panel of this court- writes, “[a] party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right, of action,” Qwest Corp.,
2
In any event, the majority’s claim that the existence of a Supremacy Clause cause of action was undisputed is erroneous. In its combined opening and answer brief,
Santa Fe argued that Qwest lacked a cause of action under either § 1983 or § 253 of the Federal Telecommunications Act. (See City of Santa Fe Combined Opening and Answer Br. 2.) It thus stated that the district court’s decision “rests federal jurisdiction solely on the Supremacy Clause” and that this was error because “the Supremacy Clause cannot in and of itself confer ‘arising under’ jurisdiction.” (Id.) The City argued that although the Supremacy Clause might provide a defense based on federal law, “under the well-pleaded complaint rule, a federal defense does not show that ‘the plaintiffs original cause of action arises under the Constitution.’ ” (Id. at 2-3 (quoting Franchise Tax Bd. v. Laborers Vacation Trust,
Qwest responded that “private plaintiffs seeking injunctive or declaratory relief may challenge local telecommunications ordinances under the Supremacy Clause, regardless of whether the Telecom Act confers a private right of action.” (Qwest Reply Br. 2-3.) In a footnote, Qwest noted that “[e]ven in the absence of an explicit statutory provision establishing a cause of action, a private party may ordinarily seek declaratory and injunctive relief against state action on the basis of federal preemption.” (Id. at 2 n. 4 (quoting Bud Antle, Inc. v. Barbosa,
As the foregoing makes clear, Santa Fe ásserted two premises: (1) that Qwest lacked a federal cause of action; and (2) that a federal cause of action was a precondition of federal question jurisdiction. The Qwest Corp. panel might have disposed of Santa Fe’s jurisdictional argument by rejecting the second premise • and holding that federal question jurisdiction can exist even without a federal cause of action. In Grable & Sons Metal Products v. Darue Engineering & Manufacturing,
Because this legal conclusion was a necessary step in the court’s decisional path, it is a binding holding. See Yost v. Stout,
D
There are but two exceptions to the rule that one panel may not overrule another: superseding en banc review or intervening Supreme Court decisions. See Rezaq v. Nalley,
There can be no doubt that the Douglas dissent is incongruous with our circuit precedent. The dissenting Justices in that case would have established a blanket rule: “the Supremacy Clause does not provide a cause of action to enforce the requirements of [a federal statute] when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.” Douglas,
Other than the Douglas dissent, the majority provides no support for its novel theory of Supremacy Clause jurisprudence. The text of the Constitution does not assist the majority’s attempt to limit these claims. The Supremacy Clause states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const, art. VI, cl. 2. It does not distinguish between preemption of state “enforcement actions” and laws that interfere with positive federal rights, nor does it exclude Spending Clause legislation.
The majority finds no support in majori-tarian Supreme Court opinions. This is because our holding in Qwest Corp. is fully in line with Supreme Court practice. In Shaw, the Court explained that “[i]t is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.”
The Supreme Court has explicitly rejected the majority’s assertion that only preemptive defenses are permitted under the Supremacy Clause. In Franchise Tax Board, a case decided the same day as Shaw, the Court explained that “a claim of federal preemption does not always arise as a defense to a coercive action.”
Moreover, the Court has repeatedly addressed the merits of Supremacy Clause claims that do not involve “enforcement actions” and are based on Spending Clause legislation. In Pharmaceutical Research & Manufacturers of America v. Walsh,
The majority cites Justice Kennedy’s concurrence in Virginia Office for Protection & Advocacy for the proposition that the Supremacy Clause permits only “an anticipatory action to enjoin enforcement of a state law.” (Majority Op. 830.) But the actual quote is descriptive rather than restrictive; it simply notes that the injunction sought in Ex parte Young was a preemptive assertion of a defense in equity. Va. Office for Prot. & Advocacy,
E
The majority’s deviation from Qwest Corp. also breaks with the clear weight of authority in other circuits. Numerous decisions have stressed the distinction between a cause of action under the Supremacy Clause and one seeking enforcement of the federal law in question — a distinction the majority attempts to eliminate by imposing the same requirements on Supremacy Clause claimants as those applying to plaintiffs seeking to assert an implied right of action. See Indep. Living Ctr. of S. Cal., Inc. v. Shewry,
As these courts recognize, the potential relief available in a Supremacy Clause claim is limited to enjoining a state or local government official from engaging in an ongoing violation of the Constitution. See Qwest Corp.,
Further, a majority of circuits have recognized a cause of action under the Supremacy Clause to challenge allegedly preempted state laws that merely impose conditions on the receipt of government benefits and thus could not lead to an “enforcement action.” Most of these cases involve Spending Clause legislation. Yet the majority asserts that “tradition” backs its naked “assum[ption]” that Planned Parenthood is prohibited from redressing its injury through the Supremacy Clause without actually looking to the case law. (Majority Op. 826-27.)
In Sanchez, the Fifth Circuit concluded that it was “well-established” that “there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision,”
The Eighth- Circuit has also held that the Supremacy Clause provides a private right of action for claims that involve the provision of government benefits. In Lankford v. Sherman,
In Pharmaceutical Research & Manufacturers of America v. Concannon,
The Second Circuit has held, consistent with Qwest Corp., that a plaintiff may sue directly under the Supremacy Clause to seek access to government property. In Western Air Lines, the court concluded that the plaintiff lacked a cause of action under the allegedly preemptive federal statutes and affirmed the dismissal of the plaintiffs § 1983 claims for lack of prose
And our circuit, in Qwest Corp. and Edmondson, has recognized a direct cause of action under the Supremacy Clause to challenge local enactments that could not be enforced in a coercive action. That makes no fewer than seven circuits that have rejected the rationale espoused by the majority.
F
In some future case, the Supreme Court might upend the long line of cases flowing from Ex parte Young to Shaw to Qwest Corp., reject the view of a majority of circuits, and curtail litigants’ ability to assert the supremacy of federal law in protecting their rights. In the Supreme Court, “stare decisis is a principle of policy rather than an inexorable command.” Hohn v. United States,
In Douglas, the Court explicitly stated: “[W]e do not address whether the Ninth Circuit properly recognized a Supremacy Clause action to enforce this federal statute before the agency took final action.”
My colleagues claim that Planned Parenthood of Indiana supports their decision to upend our circuit precedent based on the Douglas dissent because the Seventh Circuit was “not inclined to agree” with the position of multiple circuits, including our own, that allow a cause of action directly under the Supremacy Clause. (Majority Op. 828 (quoting
Ill
The district court opinion before us on review for error is well-grounded in its findings of fact and based on a learned presentation of the appropriate authorities. Because it correctly applies the precedents of the Court and of this court, it is free of error and justly worthy of affirmance. I am neither persuaded to follow the vanishing trail that my colleagues pursue in an end run around the district court, nor am I amenable to their harsh treatment of binding precedent. Accordingly, I dissent.
. The funding cuts also applied to the Dodge City Family Planning Clinic, which was previously an intervenor in this case. Because the organization ceased operations and is no longer seeking funding from the Kansas Department of Health and Environment ("KDHE”), we dismissed Dodge City’s appeal as moot upon a joint stipulation of the parties.
. Because I would affirm the district court’s conclusion as to Planned Parenthood's Supremacy Clause claim, I would not reach its First Amendment claim. Nonetheless, I must voice my disagreement with the majority's analysis of that issue. The majority argues that Planned Parenthood's claim does not fall within an asserted category of cases, "those in which a person is penalized by discretionary executive action for prior speech or association.” (Majority Op. 839.) In doing so, the majority ignores the undisputed evidence of executive action noted above: KDHE pulled funding from Planned Parenthood without having contracted with alternative providers.
The majority bases its holding entirely on the putative absence of executive action and the inability of courts to overturn legislative enactments due to improper motives. It therefore does not reach plaintiff's argument that Section 107(1) is unconstitutional because it disqualifies Planned Parenthood from receiving government funds on the basis of its constitutionally protected activity. KDHE has in practice barred Planned Parenthood from Title X funding based on its affiliation with abortion. As the Supreme Court recently held, legislatures may "define the limits of [a] government spending program” but may not "leverage funding to regulate speech outside the contours of the program itself.”
. As the majority observes, courts must occasionally decide antecedent issues that the parties may not have briefed in order to resolve the dispute between the litigants. (Majority Op. 837); see also U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc.,
. If this is the basis of the majority’s hypothetical enforcement action, it must be presumed that Planned Parenthood could similarly attempt to "continuef ] to provide [family planning] service as it had in the past,” (Majority Op. 835 n. 5), by stealing state funds to replace its prior Title X funding. But as far as I can tell, the subsequent criminal proceeding would qualify as an "enforcement action” under the majority’s reasoning. I would hope that important rules of constitutional law are not based on such fanciful hypotheticals, but I must highlight the exact congruence between the plaintiffs in this case and Qwest Corp.
. Because the majority places great weight on the use of the phrase “enforcement action” in the district court order enjoining parts of the ordinance at issue in Qwest Corp., I note that the district court on review in Edmondson did not use the word "enforcement action” to describe its injunction. Instead, much like the district court order on review before us, it simply used a form of the verb "enforce”: "Because of ... the irreparable harm Plaintiffs will suffer if an unconstitutional Act is enforced, the Court finds Plaintiffs' Motion for Preliminary Injunction ... should be and is GRANTED.” Chamber of Commerce of the U.S. v. Henry, No. CIV-08-109-C,
. The majority repeatedly chastises both Planned Parenthood and this dissent for citing cases that deal with § 1983, private statutory rights of action, the Eleventh Amendment, and jurisdictional issues. (Majority Op. 831-33.) My colleagues refuse to follow our Supremacy Clause jurisprudence from Qwest Corp. and Edmondson, and they summarily reject in a single footnote the well-reasoned decisions on point from a majority of other circuits, (Majority Op. 836 n. 7), electing instead to spin from whole cloth a new test never endorsed by another court. I am therefore forced to look to analogous precedent for “general expressions” of the law. (Majority Op. 835-36 (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399,
. My colleagues say that the possibility of APA relief in Qwest Corp. "was never addressed by the court and parties,” (Majority Op. 835 n. 6), suggesting that the panel's silence on the matter supports their position. But the absence of any discussion of an APA remedy is precisely the point. The majority’s assertion that the possible availability of APA review in this case distinguishes it from Qwest Corp. is an invention; APA review is equally available to the plaintiffs in both cases. And as I have already noted, the APA was not properly addressed by the parties in this case. The majority raised the issue sua sponte in its call for supplemental briefing.
. Similarly, a federal right may be unenforceable under § 1983 if the statute creates a “comprehensive enforcement scheme.” City of Rancho Palos Verdes v. Abrams,
. Qwest Corp. was a cross-appeal.
. Although the plaintiffs also filed suit under § 1983, the district court concluded that it was necessary to reach the Supremacy Clause issue because plaintiffs challenged one of the statutory provisions solely in their Supremacy Clause claim. Lewis,