PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, Plaintiff-Appellee, v. Robert MOSER, M.D., Secretary, Kansas Department of Health and Environment, Defendant-Appellant.
Nos. 11-3235, 12-3178, 13-3175
United States Court of Appeals, Tenth Circuit
March 25, 2014
747 F.3d 814
Eagle Forum Education & Legal Defense Fund, Amicus Curiae.
Scott, 550 U.S. at 385-86, 127 S.Ct. 1769 (emphasis in original). Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.
Garner, 471 U.S. at 11, 105 S.Ct. 1694 (emphasis added).
Chief Judge KOZINSKI, with whom Circuit Judges TROTT, TALLMAN and BEA join, dissenting:
It‘s undisputed that, at the time he fired the fatal shot, Officer Wyatt was trapped inside a moving vehicle driven by a man who had resisted the verbal commands, physical restraints, lethal threats and bodily force of two uniformed officers. How fast the van was moving and how far it had traveled are beside the point. What matters is that Officer Wyatt was prisoner in a vehicle controlled by someone who had already committed several dangerous felonies. No sane officer in Wyatt‘s situation would have acted any differently, and no reasonable jury will hold him liable. The only thing this remand will accomplish is to give plaintiffs a bludgeon with which to extort a hefty settlement. The Supreme Court should foil the plan with a swift summary reversal.
Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and Erin C. Thompson, Thompson Law Firm, LLC, Wichita, KS; Roger K. Evans and Helene T. Krasnoff, Planned Parenthood Federation of America, New York, N.Y. and Washington, D.C., with her on the briefs), for Plaintiff-Appellee.
Lawrence J. Joseph, Washington, D.C., for Amicus Curiae.
Before LUCERO, HARTZ, and O‘BRIEN, Circuit Judges.
HARTZ, Circuit Judge.
The federal government subsidizes the cost of family-planning services for low-income individuals through
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, 594 F.3d 742, 764 (10th Cir.2010), and Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir.2004), this opinion does not call into question the validity of the injunctions affirmed by those two decisions. Our holding is much narrower than what the dissent suggests. We hold only that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily (it is a matter of statutory interpretation that depends on the specifics of the federal statute) authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under
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
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).
Under Title X, “[l]ocal 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.”
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.”
The Title X regulations cross-reference “HHS Department-wide regulations,” which apply to Title X grants.
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, 2011. 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(l)
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(l) 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
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)).1 Thus, only (1) public entities and (2) nonpublic hospitals and federally qualified health centers (FQHCs) may become delegate agencies of KDHE, with public entities receiving priority. Kansas law adopts the definition of FQHC set forth in
All agree that the two categories of eligible entities under § 107(l) 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(l) 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(l) 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(l) violates the First Amendment by penalizing Planned Parenthood for associating with abortion providers and advocating for access to abortion services; and (3) that § 107(l) 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(l) imposes eligibility requirements that render it “certain that Planned Parenthood cannot successfully participate in Title X funds,” Aplt. App., Vol. III 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(l) 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(l) 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, 670 F.3d 1111, 1125 (10th Cir.2012)—and ruled that each favored Planned Parenthood. Accordingly, it enjoined “any further enforcement or reliance on Section 107(l)” and ordered Moser “to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l).” Aplt. App., Vol. III at 485 (Mem. Op. at 36). The court did not address the Fourteenth Amendment claim based on the right to choose abortion, and that claim is not at issue in this appeal.
Moser filed an interlocutory notice of appeal challenging the preliminary injunction. He raises several grounds for reversal: (1) that neither a
II. DISCUSSION
We have jurisdiction under
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. III at 476 (Mem. Op. at 27). It explained that § 107(l) 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(l) “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(l)‘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(l). We need not reach those issues, however, because Moser 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
We disagree. We hold that, regardless of whether § 107(l) 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 injunctive 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(l) 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,
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.”
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, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), certain state-court proceedings, such as ongoing criminal prosecutions, cannot be enjoined despite allegations that the statute underlying the proceeding violates the federal Constitution. And the Tax Injunction Act (TIA),
Determining what remedies are available for violations of a statute is a matter of statutory construction. Cf. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just the private right but also a private remedy.“). The statute may make the task easy by spelling out the remedies. But a court may have to infer whether or not a remedy is available by using traditional methods of statutory construction. This is true regardless of what remedy is in question, be it punitive damages, compensation for emotional distress, or injunctive relief. The answers are not the same for every statute; and the answers may differ depending on the remedy (for example, injunctive relief may be implied when a damages remedy is not). But the Supremacy Clause does not provide the answers. It does not tell us how to interpret federal statutes. It proclaims only that the federal statute, once interpreted, prevails over state or local law.
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, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (“Congress plainly authorized the federal courts to issue injunctions in
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(l).
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, 567 U.S. 519, 132 S.Ct. 2566, 2601-07, 183 L.Ed.2d 450 (2012), can require the States to comply with certain conditions in return for accepting some of that money. Inherent in such legislation is the power of the purse to assure compliance. That is certainly the case here. The provision of Title X allegedly violated by § 107(l) directs how grantees of Title X funds must spend money appropriated by Congress. If HHS, which administers the grants, thinks that the money is being misspent, it can refuse to give more funds to Kansas and even clawback money that Kansas has misspent. See
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(l) 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
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 misincentives that can arise out of an occasional inappropriate application of the statute in a private action for damages.
Id. at 292, 122 S.Ct. 2268 (Breyer, J., concurring). And Chief Justice Roberts recently made the following observation about legislation similar to Title X:
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., 565 U.S. 606, 132 S.Ct. 1204, 1214-15, 182 L.Ed.2d 101 (2012) (Roberts, C.J., dissenting) (citations and internal quotation marks omitted); see also United States v. Hohri, 482 U.S. 64, 71-73, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (observing that the advantage of national uniformity is one reason why breach-of-contract suits against the government must ordinarily be brought in the Court of Claims and are reviewable only in the Federal Circuit).
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(l), 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, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). And it has held that protected speech does not need to be subsidized by the government. See Regan v. Taxation with Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (“Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for TWR‘s lobbying.“) True, denial of a subsidy can create hardship, even great hardship, and Congress may well decide that the hardship is sufficiently significant that a person denied the subsidy should have a judicial remedy. But Planned Parenthood does not suggest that Title X granted it an individual right, which could be enforced under
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, 560 U.S. 631, 130 S.Ct. 2549, 2560-62, 177 L.Ed.2d 130 (2010). Relevant to this case, there is no tradition of recognizing a private party‘s right to injunctive relief against a state law that is contrary to Spending Clause legislation not creating a personal right. There is no reason to assume that the Congress that enacted Title X anticipated creation of such a remedy.
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, 132 S.Ct. at 1211, Medicaid providers and ben-
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 [
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,”
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.
132 S.Ct. at 1214-15 (Roberts, C.J., dissenting) (citations and internal quotation marks omitted).
In our view, Title X does not “display[] an intent to create” the remedy sought by Planned Parenthood under the Supremacy Clause. Alexander, 532 U.S. at 286, 121 S.Ct. 1511. On the contrary, the message of the statutory scheme is that statutory requirements should be enforced through the administering agency. Supporting this view is the opinion by the Seventh Circuit in Planned Parenthood of Indiana, Inc. v. Comm‘r of Indiana State Department of Health, 699 F.3d 962 (7th Cir.2012). Although it relied on other grounds to reject a claim under the Medicaid Act virtually identical to the one presented here, it noted that, for the reasons set forth in Chief Justice Roberts‘s dissent, it was “not inclined to agree” with the proposition that the Supremacy Clause supplied a right of action for injunctive relief. Id. at 983. Similarly, the Massachusetts Supreme Judicial Court has adopted the dissent in Douglas. See Bos. Med. Ctr. Corp. v. Sec‘y of Exec. Office of Health & Humans Servs., 463 Mass. 447, 974 N.E.2d 1114, 1127-28 (2012).
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 injunctive 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 reliance 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, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), a person accused of loitering under a Louisville ordinance successfully defended himself on the ground that the loitering law was too vague to satisfy federal due process. Given the uniform precedent in permitting such a defense, one might infer that the defense is compelled by the Supremacy Clause. But that precedent can readily be explained on the ground that it is almost always reasonable to infer from the federal law at issue that it is intended to be available as a defense to enforcement of state or local law. As in Thompson, permitting the defense may be the only way to effectuate the federal law. And the “equities” weigh heavily in favor of one who is being 3 prohibited from engaging in conduct that, under the Supremacy Clause, is lawful.
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. When that is so, we can also generally presume that a person likely to face such an enforcement action may proceed in federal court to
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(l), 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, 6 Wheat. 264, 19 U.S. 264, 399, 5 L.Ed. 257 (1821).
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
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, 547 U.S. 268, 292, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), there is no mention of the Supremacy Clause in the Court‘s unanimous opinion, nor is there any mention of the Clause in the district-court or circuit-court opinions in the case. In Crosby v. National Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000), the source of the cause of action was apparently not a matter of contention because the opinion contains no discussion of whether a cause of action exists. In Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), the Court denied relief, so the opinion could not be a precedent for the existence of a cause of action. And Jones v. T.H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976), was a summary affirmance with no discussion of the basis of the cause of action. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (discussing the very limited precedential effect of a summary affirmance).
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), is sometimes cited as supporting the exis-
Finally, in Pharmaceutical Research & Manufacturers of America v. Walsh, 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003), the Court affirmed the circuit court‘s reversal of a preliminary injunction against a state law without addressing whether the plaintiff had a cause of action. Justice Thomas‘s concurrence pointed out that the respondents had failed to argue that the petitioner was “not entitled to bring a preemption lawsuit as a third-party beneficiary to the Medicaid contract.” Id. at 683, 123 S.Ct. 1855.
We note that the dissent also cites Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), as rejecting our view when it stated that “a claim of federal preemption does not always arise as a defense to a coercive action,” id. at 12 n. 12, 103 S.Ct. 2841. But the cases cited by the Court as illustrations of that proposition, see id. at 20 n. 20, 103 S.Ct. 2841, make clear that all the Court was saying is that preemption can be raised not only as a defense but also in suits for injunctions or declaratory judgments. It was not deciding when it can be a basis for injunctive relief, and it was hardly saying that preemption always provides a cause of action for injunctive relief. As for the dissent‘s citation of Virginia Office for Protection & Advocacy v. Stewart, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011), the only issue before the Court was the scope of the exception to the Eleventh Amendment recognized in Ex parte Young. The existence of a cause of action was not addressed. Suggesting caution in reading too much into the opinion is that the author was Justice Scalia, who less than a year later joined the dissent in Douglas.
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, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“drive-by jurisdictional rulings
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, 810 F.2d 984 (10th Cir.1987), the suit was brought under
That leaves us with the two of our opinions on which Planned Parenthood places its principal reliance: Edmondson, 594 F.3d 742, and Qwest Corp., 380 F.3d 1258. But as opinions that purportedly have definitively resolved the issue before us, they are remarkably short on discussion. In neither was the existence of a Supremacy Clause cause of action disputed. And of particular importance, neither involved Spending Clause legislation and both involved relief from enforcement actions.
Edmondson dealt with the issue in a footnote stating that one of the defendants had challenged the plaintiffs’ right to bring suit under
The discussion in Qwest was not significantly longer. It consisted of four conclusory 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 id. at 1264 n. 1. As explained above, the existence of jurisdiction is quite different from the existence of a cause of action. See Bell, 327 U.S. at 682, 66 S.Ct. 773.
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
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
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 while retaining another employee that the employer knew or should have known was an unauthorized alien. See id. at 758, 760, 765 (describing the Act‘s remedies—cease-and-desist orders, reinstatement, back pay, costs, and attorneys’ fees as
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,
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
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., 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), the Supreme Court addressed the petitioner‘s argument that the court of appeals had improperly considered an argument (that Congress had repealed the statute permitting certain banks to sell insurance) not raised by the respondents in the circuit court in their opening brief or even at oral argument, despite that court‘s invitation, see id. at 445. Indeed, in response to the circuit court‘s orders for supplemental briefing, the respondents did not take a position on the merits. See id. But the Court wrote,
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
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
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.8 We see no unfairness to Planned Parenthood given the opportunity we have provided for it to submit two briefs on the subject. And we think this issue is sufficiently substantial and important to demand our attention. At least four members of the Supreme Court appear to believe that there is no cause of action in this type of case, and, as the dissent here notes, they might go further than this opinion in restricting suits for injunctive relief. To be sure, four is not a majority of the Court; but the fact that the issue is as yet undecided argues for, rather than against, consideration of an issue that has clearly grabbed the attention of the Justices.
B. First Amendment Claim
The district court also granted Planned Parenthood a preliminary injunction against implementation of
Moser challenges the preliminary injunction, arguing that
We begin by stating our understanding of the unconstitutional-conditions doctrine. Under the
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, 518 U.S. at 671 (termination of independent contractor by county officials in retaliation for contractor‘s criticism of county board); Perry, 408 U.S. at 597 (nonrenewal of professor‘s contract with state university by board of regents in retaliation for his criticizing the board). In these cases, the government official‘s action has not been compelled by a statute or regulation; rather, the challenged action is one that would be within the official‘s discretion if it were not taken in retaliation for the exercise of a constitutional right. Thus, these cases necessarily examine the official‘s motive for taking the action; the challenge will be rejected unless retaliation against the protected conduct was
Neither of these contexts is present here. The first is absent because nothing in
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
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, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), considered the 1965 amendment to the
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’
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-
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 (footnote omitted). Second, the Court noted the futility of striking down a statute
As here, the plaintiff in O‘Brien relied primarily on the statements of three lawmakers, the only ones to speak during floor debate. But the Court downplayed the importance of the statements, saying that
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, 482 U.S. 578, 585, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (invalidating law under Establishment Clause based on state‘s lack of a legitimate secular purpose); Wallace v. Jaffree, 472 U.S. 38, 56, 59, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (same); Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (invalidating state constitutional provision under Equal Protection Clause based on racially discriminatory motive and impact); Crawford v. Bd. of Educ. of L.A., 458 U.S. 527, 543-45, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982) (rejecting equal-protection challenge to state constitutional amendment limiting state court-ordered busing on ground that it was not adopted with a discriminatory purpose); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (rejecting equal-protection challenge to city‘s rezoning decision on ground that the challengers failed to carry their burden of proving that racially discriminatory purpose was a motivating factor). But Planned Parenthood
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, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), presents a clear contrast to the Court‘s decision less than two years earlier in Umbehr. In Umbehr the Court had held that an independent contractor could sue two members of the board of county commissioners who had allegedly terminated his government contract in retaliation for his criticism of the county and the board. See 518 U.S. at 670-73. The Court applied to independent government contractors essentially the same protection provided to public employees.
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
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.
LUCERO, Circuit Judge, 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, 380 F.3d 1258 (10th Cir.2004), and correctly stated that the Tenth Circuit
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, 200 F.3d 715, 720 (10th Cir.2000). This bedrock principle of stare decisis ensures that parties are treated consistently and invites confidence in the judicial process. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It is
I
A
In Qwest Corp., we held that
Qwest
The panel in Qwest Corp. concluded that we had federal question jurisdiction because
Qwest Corp. considered whether the district court erred in concluding that
Although we held that
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
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. —, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011), a criminal defendant argued that Congress lacked constitutional authority to enact a federal statute that imposed criminal penalties for chemical weapon use. The Court unanimously rejected the argument that Bond lacked standing because she asserted only the legal rights and interests of the states. Id. at 2363. Instead, the Court held that a party
As did Bond, Planned Parenthood seeks to vindicate its own interests in contending that
The district court determined that Planned Parenthood
Moser cannot rely on Wilderness Society v. Kane County, 632 F.3d 1162 (10th Cir.2011) (en banc), for his contention that Planned Parenthood lacks prudential standing. The Supreme Court‘s decision in Bond expressly rejected the conclusion that a party
C
Under our federal structure,
When other circuits have examined state laws that impose heightened
Record review fully supports the district court‘s conclusion that
But
Regardless of the statute‘s purpose, the text of
Planned Parenthood has demonstrated that the remaining preliminary injunction factors weigh in its favor. See Winter v. Nat‘l Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (describing the standard for a preliminary injunction).
The record firmly supports the district court‘s conclusion that Planned Parenthood
I also agree with the district court‘s conclusion that
Finally, I would also affirm the district court‘s conclusion that an injunction is
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
The majority pretends that the waiver issue is debatable, stating that Planned Parenthood
This rule carries particular force in the context of affirmative waiver.
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
1
The majority repeatedly asserts that
Engaging in an unwarranted exercise in statutory interpretation, the majority announces that plaintiff lacks a cause of action under the Supremacy Clause because
As we explained in Qwest Corp., however, an implied right of action is distinct from a Supremacy Clause claim:
2
My colleagues also argue that Qwest Corp. is distinguishable because Planned Parenthood, unlike Qwest, cannot be subjected to an
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
But that cannot be right, because the district court opinion on review today orders the following:
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
For example, the requirement that telecommunications companies provide the city certain information as part of the registration process logically cannot be
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
claim that the ordinance was preempted could not possibly serve as a defense.4
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.” 380 F.3d at 1264 n. 1 (emphasis added). We affirmatively held, with respect to a local ordinance that merely imposed conditions on the receipt of government benefits, 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.” Id. at 1266. This holding was joined in relevant part by the author of today‘s majority opinion.
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 “prevent[ing] 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., 380 F.3d at 1262, and Planned Parenthood similarly seeks an injunction “to prevent the application and enforcement” of Section 107(1), Planned Parenthood of Kan. & Mid.-Mo., 799 F.Supp.2d at 1220; see also 2011 Kan. Sess. Laws 2020; 30 Kan. Reg. 793 (June 9, 2011). “Enforcement” in this context simply means conditioning benefits in a manner inconsistent with federal law.
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, 594 F.3d 742 (10th Cir.2010), this court held that the plaintiffs “have a valid right of action under the Supremacy Clause” to challenge three provisions of Oklahoma law as preempted. 594 F.3d at 756 n. 13. Because our circuit precedent in Qwest Corp. was controlling on this point, we declined to reach one defendant‘s argument that the plaintiffs lacked a cause of action under § 1983. Edmondson, 594 F.3d at 756 n. 13. As in Qwest Corp., the plaintiffs challenged a statutory provision that simply limited access to government benefits and thus could not logically lead to an “enforcement action.” The panel majority concluded that plaintiffs possessed a cause of action directly under the Supremacy Clause to challenge
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: “[A]lmost 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, 397 U.S. 238, 240 (1970) (Harlan, J., concurring in the result). The majority‘s attempt to distinguish away a binding precedent on the basis of one district court‘s single use of the phrase “enforcement action” constitutes precisely the sort of verbal calisthenics that Justice Harlan warned against.
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, 451 U.S. 1, 17 (1981) (”Pennhurst I“). Therefore, says the majority, we should look to the legislation to determine which remedies are available, because “[s]tates, being political animals, likely prefer placing enforcement power exclusively with a federal agency” and “[w]e should not impose on the States the burden of private suits unless the Spending Clause legislation ‘unambiguously’ so requires.” (Majority Op. 826.) My colleagues fail to explain why state preferences ought to be treated more deferentially than the Constitution‘s explicit statement that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
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, 289 F.3d 852 (6th Cir.2002), the Sixth Circuit rejected a district court opinion stating “that Medicaid was only a contract between a state and the federal government, that spending-power programs such as Medicaid were not supreme law of the land, . . . [and] that in this case Ex parte Young was unavailable.” Westside Mothers, 289 F.3d at 857. The district court had relied on the same language from Pennhurst I that undergirds the majority opinion. Westside Mothers v. Haveman, 133 F.Supp.2d 549, 557 (E.D.Mich.2001). The Sixth Circuit explained that the Supreme Court “is using the term ‘contract’ metaphorically, to illuminate certain aspects of the relationship formed between a state and the federal government in a program such as Medicaid.” Westside Mothers, 289 F.3d at 858. The Supreme Court, it added, had already explicitly rejected a Medicaid-as-contract theory, holding that “‘unlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy.‘” Id. (quoting Bennett v. Ky. Dep‘t of Educ., 470 U.S. 656, 669 (1985)). It went on to review several Supreme Court decisions striking down state enactments as inconsistent with Spending Clause legislation. Id. at 860 (citing Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 477-78 (1996); Lawrence Cnty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 269-70 (1985)). Finally, the court ruled that because “spending clause enactments are supreme law of the land, they may be the basis for an Ex parte Young action.” Westside Mothers, 289 F.3d at 861.
The Fifth Circuit adopted the Sixth Circuit‘s Westside Mothers reasoning in Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002), rev‘d on other grounds sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004). The state of Texas urged the court to adopt the reasoning of the district court in Westside Mothers and recognize a “Spending Clause exception to the Ex Parte Young exception to the Eleventh Amendment.” Frazar, 300 F.3d at 550 (quotation omitted). The Fifth Circuit easily rejected this invitation to depart from settled practice, explaining that, “[f]or purposes of the Supremacy Clause and Ex Parte Young, the mandates set out in [the] Medicaid statute are more than contractual; they are federal law.” Frazar, 300 F.3d at 550.
In Missouri Child Care Ass‘n v. Cross, 294 F.3d 1034 (8th Cir.2002), the court described as an “unusual assertion” state officials’ argument “that Ex parte Young does not apply” to claims based on Spending Clause legislation because such legislation is “not part of the supreme law of the land under the Supremacy Clause.” 294 F.3d at 1040. The court roundly rejected the argument that Spending Clause legislation “amounts to nothing more under the Constitution than a contract to be interpreted under ordinary contract principles,” holding that the defendants’ contention was based on a “misinterpret[ation of] language from the Supreme Court‘s opinions in Pennhurst [I] and Blessing [v. Freestone, 520 U.S. 329 (1997)].” Mo. Child Care Ass‘n, 294 F.3d at 1040. Citing Westside Mothers, the Eighth Circuit declined to “make the logical leap . . . from describing such programs as ‘like contracts’ to treating such programs ‘as nothing more than contracts.‘” Like the Sixth Circuit, we re
Finally, in Antrican v. Odom, 290 F.3d 178 (4th Cir.2002), the court rejected the defendants’ argument that “Spending Clause legislation[] is not supreme law and therefore does not fall within Ex Parte Young‘s defining purpose, which is to give life to the Supremacy Clause.” 290 F.3d at 188 (quotations omitted). The defendants’ “novel position,” the court concluded, is “at odds with existing, binding precedent.” Id. “[T]he Supreme Court has treated the Medicaid Act as ‘supreme’ law and has invalidated conflicting State law under the Supremacy Clause.” Id. (citing Dalton, 516 U.S. at 478).
Today‘s majority might respond that these cases are distinguishable because they were brought under statutes enforceable utilizing § 1983.6 But merely pointing out a difference in procedural posture does not overcome the majority opinion‘s failure to explain why Spending Clause legislation is somehow less supreme than legislation passed pursuant to other constitutional clauses. And although the majority does not take the clearly erroneous position that Spending Clause legislation is not the law of the land, its attempt to limit the Supremacy Clause has the same effect.
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, 536 U.S. 181, 188 n. 2 (2002). Rather than looking to the well-reasoned decisions of other courts, the majority rests on policy arguments in favor of uniformity. I note that judicial decisions provide such uniformity when judges faithfully observe precedent, and that today‘s opinion creates disuniformity by placing our circuit in direct conflict with several others that have considered similar issues, as well as with our own cases.
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, 451 U.S. at 24. Planned Parenthood does not seek damages, nor does it attempt to impose costs on the state in excess of the funds provided by the federal government. It merely argues that KDHE should be
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., 526 U.S. 629, 640 (1999) (emphasis added). Similarly, after acknowledging an implied injunctive or equitable remedy for Title IX violations, the Court in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), noted the need to “examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with [a Spending Clause] condition,” and held that its “central concern in that regard is with ensuring that the receiving entity of federal funds has notice that it will be liable for a monetary award.” Id. at 287 (quotation and alteration omitted).
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.” 451 U.S. at 17. And under traditional equitable principles, “[a]n injunction to prevent [a state official] from doing that which he has no legal right to do is not an interference with the discretion of an officer.” Ex parte Young, 209 U.S. at 159.
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 for the proposition that “[t]he advantages of . . . centralized, expert administration do not appear to be controversial and would be obvious to Congress.” (Majority Op. 825.)
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
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
legal requirement to the extent necessary to correct such violation or inconsistency.
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).” 380 F.3d at 1265. Yet none of the panel members, including the author of today‘s majority opinion (who wrote separately in Qwest Corp.), concluded that the possibility of an APA action foreclosed Qwest‘s suit against Santa Fe.7
Today‘s majority cites Chief Justice Roberts’ dissent in Douglas for the proposition that “[a]llowing 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, 517 U.S. 44 (1996), the Supreme Court considered the circumstances under which a traditional equitable cause of action under Ex parte Young might be curtailed based on concerns of interference with executive administration. The Court concluded that such suits are unavailable only if “Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right.” Seminole Tribe, 517 U.S. at 74. But “[t]he fact that the Federal Government can exercise oversight of a federal spending program and even withhold or withdraw funds . . . does not demonstrate that Congress has displayed an intent not to provide the more complete and more immediate relief that would otherwise be available under Ex parte Young.” Va. Office for Prot. & Advocacy v. Stewart, 131 S.Ct. 1632, 1639 n. 3 (2011)
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, 501 U.S. at 827.
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, “[t]here 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., 380 F.3d at 1266, it should not be necessary to look past that statement and decide whether that issue was sufficiently “disputed” to make that statement by this court binding law. By relying on its own assessment to undermine a precedent that both parties to this litigation treated as settled, the majority establishes a norm that permits infinite relitigation of our court‘s holdings.
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,9 the City of Santa Fe advanced a jurisdictional argument intertwined with the question of whether the Supremacy Clause provides a cause of action. The majority correctly states that the existence of a cause of action and the question of jurisdiction are distinct, (Majority Op. 831-32), but in light of the specific arguments advanced by the parties in Qwest Corp., the questions collapsed into a single inquiry.
Santa Fe argued that Qwest lacked a cause of action under either § 1983 or
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, 45 F.3d 1261, 1269 (9th Cir.1995))). The City of Santa Fe replied that the relevant precedent “does not hold that federal courts have jurisdiction to enjoin local telecommunications or
As the foregoing makes clear, Santa Fe asserted 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, 545 U.S. 308 (2005), decided the year after Qwest Corp., the Supreme Court “resolve[d] a split within the Courts of Appeals on whether . . . a federal cause of action [is] a condition for exercising federal-question jurisdiction,” by holding just that. Id. at 311-12. But the Qwest Corp. panel instead addressed the first premise, ruling that “the issue of pre-emption is not an anticipated defense, but is the basis for a federal claim,” 380 F.3d at 1264 n. 1, specifically, a direct “claim under the Supremacy Clause,” id. at 1266.
Because this legal conclusion was a necessary step in the court‘s decisional path, it is a binding holding. See Yost v. Stout, 607 F.3d 1239, 1244 n. 6 (10th Cir.2010) (“A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment.” (quotation and emphasis omitted)). And despite the majority‘s attempt to limit Qwest Corp. to a misstated version of its specific facts, “[t]he precedent of prior panels which this court must follow includes not only the very narrow holdings of those prior cases, but also the reasoning underlying those holdings, particularly when such reasoning articulates a point of law.” United States v. Meyers, 200 F.3d 715, 720 (10th Cir.2000).
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, 677 F.3d 1001, 1012 n. 5 (10th Cir.2012). The majority does not identify any such superseding decisions. Instead, the majority relies on the dissent in Douglas in its attempt to rewrite our circuit jurisprudence. Again, a dissent is not superseding Supreme Court precedent. To the extent the majority is drawn to the Douglas dissent, it is free to argue for en banc reversal of Qwest Corp. See Fed. R. App. P. 35. But it is not at liberty to usurp the authority of the Supreme Court or our en banc court and overturn Qwest Corp. on its own.
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, 132 S.Ct. at 1212 (Roberts, C.J., dissenting); see also id. (“Thus, if Congress does not intend for a statute to supply a cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one.“). These statements are the antithesis of our holding in Qwest Corp. 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.” 380 F.3d at 1266. Tellingly, despite the majority‘s extensive quotation of the Douglas dissent, these passages are
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.
The majority finds no support in majoritarian 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.” 463 U.S. at 96 n. 14 (citing Ex parte Young, 209 U.S. at 160-62). And the Court notes that it “frequently has resolved pre-emption disputes in a similar jurisdictional posture.” Id. As numerous commentators and courts—including our own—have noted, “[t]he best explanation of Ex parte Young and its progeny is that the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution and laws.” Charles Alan Wright et al., 13D Federal Practice and Procedure § 3566, at 292 (3d ed.2008); see Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1265 (10th Cir.2002) (quoting Charles Alan Wright et al., 13B Federal Practice and Procedure § 3566, at 102 (2d ed.1984)); Burgio & Campofelice, Inc. v. N.Y. Dep‘t of Labor, 107 F.3d 1000, 1006 (2d Cir.1997) (quoting same); Guar. Nat‘l Ins. Co. v. Gates, 916 F.2d 508, 512 (9th Cir.1990) (quoting same); see also Richard H. Fallon et al., Hart and Wechsler‘s The Federal Courts and the Federal System 807 (6th ed.2009) (describing as “well established” “the rule 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 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.” 463 U.S. at 12 n. 12. This holding fits neatly with the Court‘s prior pronouncement that “the prospective relief authorized by Young ‘has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely a shield, for those whom they were designed to protect.‘” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Edelman v. Jordan, 415 U.S. 651, 664 (1974)).
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, 538 U.S. 644 (2003), seven Justices (three in the plurality, one concurring, and three
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, 131 S.Ct. at 1642 (Kennedy, J., concurring). Justice Kennedy states immediately following the quoted sentence that “[t]he Court has expanded the Young exception far beyond its original office in order to vindicate the federal interest in assuring the supremacy of federal law.” Va. Office for Prot. & Advocacy, 131 S.Ct. at 1642 (quotation and alteration omitted). As this statement indicates, the concurrence does not suggest that defensive claims are the only ones permitted under the Supremacy Clause. To the contrary, Justice Kennedy joined the opinion of the court, which gave the green light to a suit “alleg[ing] that respondents’ refusal to produce the requested medical records violates federal law; and seek[ing] an injunction requiring the production of the records.” Id. at 1639 (majority opinion). Such a suit is clearly not one asserting a preemptive defense.
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, 543 F.3d 1050, 1058 (9th Cir.2008) (holding that “a plaintiff seeking injunctive relief under the Supremacy Clause on the basis of federal preemption need not assert a federally created ‘right,’ in the sense that term has been recently used in suits brought under § 1983, but need only satisfy traditional standing requirements“); Wright Elec., Inc. v. Minn. State Bd. of Elec., 322 F.3d 1025, 1028 (8th Cir.2003) (“[A] claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of that federal law.” (quotation omitted)); St. Thomas-St. John Hotel & Tourism Ass‘n v. Virgin Islands, 218 F.3d 232, 241 (3d Cir.2000) (concluding that “a state or territori
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., 380 F.3d at 1266. A private statutory cause of action, in contrast, frequently allows for damages and in some circumstances may be asserted against private parties. See Western Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225-26 (2d Cir. 1987) (“an implied private right of action is a means of enforcing the substantive provisions of a federal law” and “provides remedies, frequently including damages, for violations of federal law by a government entity or by a private party“); see also Gonzaga, 536 U.S. at 277 (damages remedy under private cause of action); Sanchez, 403 F.3d at 335 (“The Supremacy Clause claim advanced here by Appellees is not based on a claim of right under Title X, nor is it a claim for damages; it is a preemption claim. The Gonzaga Court gave no indication that it intended to alter its prior practice regarding such claims . . . .“). Unlike a damages remedy, a suit that merely prevents a state official from violating our federal structure cannot reasonably be described as interfering with a statutory scheme. See Bond v. United States, 131 S.Ct. 2355, 2365 (2011) (noting the role of individual claims in remedying “violation[s] of a constitutional principle that allocates power within government“); Green v. Mansour, 474 U.S. 64, 68 (1985) (“[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.“).
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,” 403 F.3d at 334 (quotation omitted), and reached the merits of a claim alleging that a Texas statute “imposes conditions on the receipt of federal funds that are incompatible with Title X,” id. at 335. That statute—just like the Kansas statute at issue in this case—could not have led to an “enforcement action” because it merely distributed funding. Id. at 328. Today‘s panel majority creates a direct circuit split with Sanchez.
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, 451 F.3d 496 (8th Cir.2006), the plaintiffs challenged a state regulation making them ineligible for durable medical equipment as inconsistent with the Medicaid Act. Id. at 501-02. The
In Pharmaceutical Research & Manufacturers of America v. Concannon, 249 F.3d 66 (1st Cir.2001), the plaintiff challenged a statute that directed a state agency to enter into rebate agreements with drug manufacturers. Id. at 71. Drug manufacturers were not required to enter into these agreements, and thus an “enforcement action” would be impossible. Instead, the statute provided for public identification of providers that did not participate, and required prior authorization of drugs from those companies before they could be dispensed to Medicaid beneficiaries. Id. at 71-72. The court rejected the argument that the plaintiff‘s interests were not adequately at issue, because the plaintiff did not assert “an action to enforce rights under the Medicaid statute, . . . but rather a preemption-based challenge under the Supremacy Clause. In this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.” Id. at 73. The Supreme Court affirmed, although it did not discuss the Supremacy Clause private right of action issue. Walsh, 538 U.S. at 670. The D.C. Circuit reached the same conclusion in a case essentially identical to Concannon. In Pharmaceutical Research & Manufacturers of America v. Thompson, 362 F.3d 817 (D.C.Cir.2004), the court rejected the state of Michigan‘s argument that “the appellants have no private right of action for injunctive relief.” Id. at 819 n. 3 (over the separate opinions of Justices Scalia and Thomas in Walsh, 538 U.S. 644 (2003)). The Thompson court noted that by reaching the merits of the Supremacy Clause claim, “the remaining seven Justices appear to have sub silentio found no flaw” in the reasoning of the First Circuit. Id.
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 plaintiff‘s § 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, 524 U.S. 236, 251 (1998) (quotations omitted). Not so in this court. Meyers, 200 F.3d at 720.
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.” 132 S.Ct. at 1211. Notwithstanding the position of the Chief Justice‘s dissent on the matter, the only fair interpretation of Douglas is that the inquiry remains open at that level. Since Douglas, the Fourth Circuit has explicitly declined to reassess its existing precedent. See United States v. South Carolina, 720 F.3d 518, 525-26 (4th Cir.2013) (“Nothing in the Chief Justice‘s dissent disturbed the prior holdings of the Supreme Court or circuit courts that have allowed private parties to seek injunctive relief from state statutes allegedly preempted by federal law.“).
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 699 F.3d at 983)). But the Seventh Circuit‘s discussion of the Douglas dissent did not reject binding circuit precedent, and that panel did what my colleagues categorically refuse to do: proceed to the merits of Planned Parenthood‘s claims. Planned Parenthood of Ind., 699 F.3d at 983-85. Looking for whatever they can find that might support the adoption of a dissenting opinion, my colleagues meekly point to a state court decision from Massachusetts. Boston Med. Ctr. Corp. v. Sec‘y of the Exec. Office of Health & Human Servs., 463 Mass. 447, 974 N.E.2d 1114, 1127-28 (2012). I acknowledge that state opinions may provide persuasive analysis in some instances, but the cited decision contains no substantive discussion of the Supremacy Clause issue, and “the federal courts are particularly appropriate bodies for the application of pre-emption principles.” Hagans v. Lavine, 415 U.S. 528, 550 (1974) (quotation omitted). The majority‘s invocation of the Douglas dissent as a
III
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.