The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA STATE FOSTER PARENT
ASSOCIATION; CALIFORNIA STATE
CARE PROVIDERS ASSOCIATION;
LEGAL ADVOCATES FOR PERMANENT
PARENTING,
No. 09-15025
Plaintiffs-Appellees,
D.C. No.
v.
3:07-cv-05086-
JOHN WAGNER, Director of the WHA
California Department of Social
ORDER AND
Services, in his official capacity;
AMENDED
MARY AULT, Deputy Director of
OPINION
the Children and Family Services
Division of the California
Department of Social Services, in
her official capacity,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted December 7, 2009
Submission Vacated December 8, 2009
Resubmitted for Decision August 23, 2010
San Francisco, California
Filed August 30, 2010
Amended October 27, 2010
17831
17832 CALIFORNIA STATE FOSTER PARENT v. WAGNER
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Carlos F. Lucero,* Circuit Judge.
Opinion by Judge Schroeder;
Concurrence by Judge Callahan
*The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
17834 CALIFORNIA STATE FOSTER PARENT v. WAGNER
COUNSEL
Richard S. Ballinger, Palo Alto, California, for plaintiffs-
appellees California State Foster Parent Association, et al.
Susan M. Carson, San Francisco, California, for defendants-
appellants John Wagner, et al.
ORDER
The Opinion filed August 30, 2010, slip op. 13015, and
appearing at ___ F.3d ___, 2010 WL 3385532, is amended as
follows:
1. Page 13019, line 24: Replace the sentence <The
parties have resolved the Foster Parents’ chal-
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17835
lenge through mediation.> with <Foster Parents
filed a motion to voluntarily dismiss their cross-
appeal, which was granted by this Court on May
07, 2009.>
2. Page 13019, line 28: Delete the sentence <This
case is therefore now in an unusual posture
because the merits, in effect, have already been
resolved, in part through the parties’ own nego-
tiations and then by another decision of this
court.>
3. Page 13020, line 26: Replace the entire para-
graph <We do not address the nature of the rem-
edy here . . . > with <We do not address the
nature of the remedy here because the Foster
Parents’ appeal was voluntary dismissed. The
parties agreed that the State’s appeal would go
forward to address the issue waived in Allenby
II: the threshold question of whether the Foster
Parents may maintain this action under § 1983.
We are now therefore squarely faced with the
issue of whether the CWA, at 42 U.S.C.
§§ 672(a) and 675(4)(A), creates an enforceable
federal right.>
4. Page 13030, line 10: Delete the sentence
<Although the district court ruled against Foster
parents on the scope of the remedy, that issue
has been resolved through mediation.>.
5. Page 13030, line 13: Add <.> after <dismiss>.
6. Page 13030, line 14: Delete <and remand solely
so that the district court may modify its judg-
ment for consistency with the parties’ mediation
agreement.>.
17836 CALIFORNIA STATE FOSTER PARENT v. WAGNER
7. Page 13030, line 17: Delete <and
REMANDED.>.
Judges Schroeder and Lucero have voted to deny the peti-
tion for rehearing en banc, and Judge Callahan has voted to
grant the petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
Defendants-Appellants’ petition for rehearing en banc is
denied.
No further filings will be accepted in this closed case.
OPINION
SCHROEDER, Circuit Judge:
The federal Child Welfare Act (“CWA” or “the Act”) pro-
vides money to state governments to pay for children’s foster
care and adoption assistance programs. 42 U.S.C. § 670 et
seq. The CWA spells out the specific foster care provider
expenses that states’ payments are supposed to cover. See 42
U.S.C. §§ 672(a) and 675(4)(A). The states then distribute the
funds to the actual families and institutions that provide care.
In California, foster parents have become concerned
because the State’s payments are not covering their costs to
the extent allegedly required under the federal law. Plaintiffs
in this case are three associations representing individual fos-
ter parents in the State of California: the California State Fos-
ter Parent Association, the California State Care Providers
Association, and Legal Advocates for Permanent Parenting
(collectively, “Foster Parents”). They brought this suit against
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17837
officials of the State of California (“the State”) under 42
U.S.C. § 1983 claiming a violation of their federal right to
payments under the CWA and seeking declaratory and injunc-
tive relief. Foster Parents seek to compel the State to revise
its payment schedule upward in order to reflect Foster Par-
ents’ actual costs.
The State moved to dismiss on the ground that the CWA
does not create rights enforceable under § 1983. The district
court denied the motion and ultimately entered judgment in
favor of Foster Parents, finding that the CWA created a fed-
eral monetary entitlement and that the State violated the Act
by setting rates without considering the CWA’s mandatory
cost factors. Both sides appealed from the final order, with the
State contesting the district court’s finding of an enforceable
federal right, and the Foster Parents challenging other aspects
of the district court’s summary judgment order. Foster Parents
filed a motion to voluntarily dismiss their cross-appeal, which
was granted by this Court on May 07, 2009. Before us now
is only the State’s appeal contending Foster Parents have no
enforceable right to higher payments.
We recently decided California Alliance of Child and Fam-
ily Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009)
(“Allenby II”), a similar case brought by institutional provid-
ers of foster care. The district court in that case held that the
CWA created a right enforceable under § 1983. California
Alliance of Child and Family Servs. v. Allenby, 459 F. Supp.
2d 919, 925 (N.D. Cal. 2006) (“Allenby I”). The district court
in this case relied heavily on the district court’s opinion in
Allenby I.
When Allenby I reached this court, however, the State had
declined to appeal the issue of whether the CWA created a
right enforceable under § 1983, and we therefore assumed,
without deciding, that it did. Allenby II, 589 F.3d at 1020 n.5.
We went on to reach the merits of the institutional providers’
claim and held that the State had failed to comply with the
17838 CALIFORNIA STATE FOSTER PARENT v. WAGNER
CWA’s mandatory cost factors, because even though the
State’s original payment schedule in 1990 was based on the
costs enumerated in the statute, the State had not complied
with its own plan to adjust the payments for inflation. Id. at
1019-23.
The district court viewed these plaintiffs as having an even
stronger case on the merits than the institutional providers in
Allenby. On summary judgment, the district court found that
the State failed to provide evidence that the payments to indi-
vidual foster care providers were ever based on the CWA’s
itemized list of costs, and that Foster Parents had provided
uncontroverted evidence that their rates had “fallen further out
of line with the cost of providing the enumerated items than
had the institutional rates” addressed in Allenby. The court
ordered a remedy that would bring about “substantial compli-
ance” with the federal statute.
We do not address the nature of the remedy here because
the Foster Parents’ appeal was voluntary dismissed. The par-
ties agreed that the State’s appeal would go forward to
address the issue waived in Allenby II: the threshold question
of whether the Foster Parents may maintain this action under
§ 1983. We are now therefore squarely faced with the issue of
whether the CWA, at 42 U.S.C. §§ 672(a) and 675(4)(A),
creates an enforceable federal right.
We hold that it does. The district court correctly permitted
the Foster Parents’ action to go forward because the CWA
grants foster care providers a federal statutory right to pay-
ments that cover certain enumerated costs, a right redressable
under § 1983. As we explain more fully below, this conclu-
sion flows from the controlling Supreme Court and Ninth Cir-
cuit authority governing when federal statutes create federal
rights enforceable through 42 U.S.C. § 1983. See Gonzaga
University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed.
2d 309 (2002); Blessing v. Freestone, 520 U.S. 329, 117 S.
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17839
Ct. 1353, 137 L. Ed. 2d 569 (1997); Price v. City of Stockton,
390 F.3d 1105 (9th Cir. 2004).
DISCUSSION
The Child Welfare Act, also known as Title IV-E of the
Social Security Act, was adopted in 1980 to enable states to
provide foster care and adoption assistance for children in
need of such services. 42 U.S.C. § 670. The Act establishes
a program through which the federal government provides
funding to states to cover the costs of administering the foster
care system. 42 U.S.C. § 670 et seq. State receipt of funds is
conditioned upon submission of a plan for assistance to the
Department of Health and Human Services for approval. 42
U.S.C. § 671(a). The CWA requires that participating states
use the federal funds to reimburse foster parents for identified
out-of-pocket costs. 42 U.S.C. §§ 671(a)-(b), 672, 675(4)(A).
[1] The two principal statutory provisions at issue in this
case are 42 U.S.C. § 672(a), which requires states to make
“foster care maintenance payments” on behalf of each foster
child, and § 675(4)(A), which defines the term “foster care
maintenance payments” as payments to cover enumerated cat-
egories of costs. Section 672(a) mandates that “[e]ach State
with a plan approved under this part . . . make foster care
maintenance payments on behalf of each child” qualifying for
foster care. 42 U.S.C. § 672(a). Section 675(4)(A) defines
“foster care maintenance payments” as
payments to cover the cost of (and the cost of pro-
viding) food, clothing, shelter, daily supervision,
school supplies, a child’s personal incidentals, liabil-
ity insurance with respect to a child, reasonable
travel to the child’s home for visitation, and reason-
able travel for the child to remain in the school in
which the child is enrolled at the time of placement.
42 U.S.C. § 675(4)(A).
17840 CALIFORNIA STATE FOSTER PARENT v. WAGNER
Foster Parents contend that §§ 672(a) and 675(4)(A) create
a federal right to payments that are based upon consideration
of the expenses enumerated in the Act. The district court
agreed. The State, on appeal, maintains that Foster Parents
have no remedy with this court because the identified provi-
sions of the CWA do not create an individually enforceable
federal right.
[2] We review de novo the district court’s decision on a
motion to dismiss. Fireman’s Fund Ins. Co. v. City of Lodi,
302 F.3d 928, 939 (9th Cir. 2002). The district court, recog-
nizing that this court had not passed on the precise question
presented here, relied on our decision in Price v. City of
Stockton, 390 F.3d 1105 (9th Cir. 2004), which found an
enforceable right in a highly analogous statutory provision.
We agree.
The Supreme Court has repeatedly recognized that a federal
statute can create an enforceable right under § 1983 when it
explicitly confers a specific monetary entitlement on an iden-
tified beneficiary. See Wilder v. Virginia Hosp. Ass’n, 496
U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (recog-
nizing health care providers’ right to reasonable reimburse-
ment rates under the Medicaid Act); Wright v. Roanoke
Redev. & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed.
2d 781 (1987) (recognizing public housing tenants’ right to
reimbursement for utilities charges in excess of rental costs
permitted by the Public Housing Act); see also Gonzaga, 536
U.S. at 280 (reaffirming Wilder and Wright).
[3] The inquiry into whether a statute creates a right
enforceable under § 1983 is one of congressional intent. Con-
gress’s intent to benefit the plaintiff must be “unambiguous.”
Gonzaga, 536 U.S. at 283. The touchstone is “whether Con-
gress intended to create a federal right.” Id. The Court
explained that “broader or vaguer ‘benefits’ or ‘interests’ ” do
not suffice. Id.
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17841
[4] The inquiry begins with the three-part test the Supreme
Court established in Blessing. Price, 390 F.3d at 1109 & n.4.
Blessing’s test asks:
(1) whether Congress intended the provision in ques-
tion to benefit the plaintiff; (2) whether the plaintiff
has demonstrated that the asserted right is not so
vague and amorphous that its enforcement would
strain judicial competence; and (3) whether the pro-
vision giving rise to the right is couched in manda-
tory, rather than precatory, terms.
Id. at 1109 (quoting Blessing, 520 U.S. 329, 340-41 (1997))
(internal quotation marks omitted).
[5] We have held that Blessing’s first factor calls for evalu-
ating the “provision in question,” and requires that we identify
the particular statutory provision at issue. ASW v. Oregon, 424
F.3d 970, 977 (9th Cir. 2005). “We do not look at the Act in
its entirety and determine at that level of generality whether
it creates individual rights.” Id. As the district court recog-
nized, Foster Parents’ asserted right is for reimbursement of
costs, and this statute is almost identical in structure to the one
this court recognized as creating an enforceable right in Price.
[6] In Price, we analyzed §§ 104(d) and (k) of the Housing
and Community Development Act (“HCDA”) to determine
whether they created a right enforceable under § 1983. 390
F.3d at 1110. Like the CWA, the HCDA supports state pro-
grams through federal grants, while “impos[ing] specific
responsibilities upon grantees.” Id. Section 104(k) of the
HCDA requires that “[e]ach grantee shall provide for reason-
able benefits to any person involuntarily and permanently dis-
placed as a result of the use of assistance received under this
chapter to acquire or substantially rehabilitate property.” Id.
(quoting 42 U.S.C. § 5304(k)). In tandem with § 104(k),
§ 104(d)(2)(A)(iii) “precisely enumerates the monetary bene-
fits to which displaced persons of low and moderate income
17842 CALIFORNIA STATE FOSTER PARENT v. WAGNER
are entitled, ‘including reimbursement for actual and reason-
able moving expenses, security deposits, credit checks, and
other moving-related expenses, including any interim living
costs.’ ” Id. at 1112 (quoting 42 U.S.C. § 5304(d)(2)(A)(iii)).
Price held that §§ 104(d)(2)(A)(iii) and (k) satisfy the require-
ments of Blessing and Gonzaga because § 104(k) “unambigu-
ously establishes an individual right to ‘reasonable benefits’ ”
whereas § 104(d)(2)(A)(iii) “spell[s] out the content” of the
right to reasonable benefits by detailing the expenses that ben-
efits should cover. Id. at 1114.
The CWA similarly contains a provision creating a right, in
§ 672(a), and a provision “spelling out the content” of that
right in § 675(4)(A). The asserted right under the statutory
language in question, is therefore the right to foster care main-
tenance payments that cover the cost of the expenses enumer-
ated in § 675(4)(A).
Once we have identified the provision in question, Bless-
ing’s first factor asks “whether Congress intended [it] to bene-
fit the plaintiff.” Price, 390 F.3d at 1109. For the following
reasons, we conclude that Congress intended for §§ 672(a)
and 675(4)(A) to benefit Foster Parents as the caregivers for
foster children.
The CWA unambiguously designates foster parents as one
of three types of recipients who can receive funds on foster
children’s behalf. See § 672(a)-(c). Section 672(a) requires the
State to make foster care maintenance payments “on behalf of
each child” qualifying for foster care. Section 672(b) further
specifies that foster care maintenance payments may be made
on behalf of a qualifying child only to (1) an “individual” pro-
viding a “foster family home”; (2) “a public or private child-
placement or child-care agency”; or (3) a “child-care institu-
tion.” 42 U.S.C. § 672(b). Section 672(c) defines a “foster
family home” as “foster family home for children which is
licensed by the State in which it is situated . . . .” 42 U.S.C.
§ 672(c). Thus, § 672, read as a whole, establishes that partic-
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17843
ipating states must make foster care maintenance payments on
behalf of each child to a foster care provider such as individ-
ual foster parents. Our conclusion thus follows from the text
and structure of the CWA. See Ball v. Rodgers, 492 F.3d
1094, 1105 (9th Cir. 2007) (citing Gonzaga, 536 U.S. at 286)
(evidence of congressional intent to create a federal right “can
be found in a statute’s language as well as in its overarching
structure”).
The State asks us to follow Gonzaga, where the Supreme
Court held that the language of the Family Educational Rights
and Privacy Act (“FERPA”) did not create an enforceable
right. See 536 U.S. at 276. The State’s reliance on Gonzaga
is misplaced, because the language of FERPA materially dif-
fers from that of the CWA.
The relevant FERPA provision states: “No funds shall be
made available under any applicable program to any educa-
tional agency or institution which has a policy or practice of
permitting the release of education records (or personally
identifiable information contained therein . . . ) of students
without the written consent of their parents to any individual,
agency, or organization.” Gonzaga, 536 U.S. at 279 (quoting
20 U.S.C. § 1232g(b)(1)). The plaintiff in Gonzaga, a student,
sought to rely on FERPA to obtain compensatory and punitive
damages from his university, which had released adverse per-
sonal information to the Washington State teacher certifica-
tion agency without his consent. Id. at 277. The Supreme
Court held that FERPA did not create an enforceable right
because the statute’s focus was not on individual beneficia-
ries. Id. at 287. The Court emphasized that FERPA spoke in
terms of the “person regulated”— educational agencies and
institutions— rather than the “individuals protected”— the
students and their families. Id. The Court also stressed that the
provision had an “aggregate focus” on “institutional policy
and practice” rather than focusing on “individual instances” of
noncompliance. Id. at 288 (internal quotation marks omitted).
Congress did not contemplate terminating funding on the
17844 CALIFORNIA STATE FOSTER PARENT v. WAGNER
basis of one violation of the privacy standards, but only where
an institution had broader policies and practices that violated
FERPA. Id. The Court therefore concluded that an individual
student’s situation was not Congress’s major concern— insti-
tutions were.
In contrast, § 672 of the CWA focuses squarely on the indi-
viduals protected, rather than the entities regulated. It does not
purport to regulate state institutions. Section 672(a) is about
payments “on behalf of each child,” payments which are
directed to foster parents pursuant to § 672(b). As noted by
the district court in Allenby I, the foster care providers’ rela-
tionship with the statutory guarantee is direct: “In contrast [to
FERPA], the CWA contemplates payments directly to provid-
ers, and the providers seek enforcement of that right.” 459
F.Supp. 2d at 924. The CWA is therefore materially different
from FERPA in its focus.
[7] Also unlike FERPA, § 672’s reference to “payments on
behalf of each child” is individual, rather than aggregate. See
§ 672(a)(1) (emphasis added). It is true that foster care main-
tenance payments differ from adoption assistance payments in
that foster care payments are set by a schedule of universal
rates rather than individualized determinations of need. See
Allenby II, 589 F.3d at 1018-19 (describing California’s rate
schedule for foster care maintenance payments); ASW, 424
F.3d at 976 (holding that CWA entitles adoptive parents to
individualized payment determinations). The CWA is clear,
however, that the State must make a foster care maintenance
payment on each child’s behalf. § 672(a)(1). Section 672(a)’s
focus on individual foster children and § 672(b)’s specific
language designating foster care providers to receive pay-
ments on foster children’s behalf together unambiguously
reflect Congress’s intent that foster care maintenance pay-
ments benefit individual foster parents. The first Blessing fac-
tor therefore militates in favor of the creation of an
enforceable right.
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17845
[8] The second Blessing factor asks “whether the plaintiff
has demonstrated that the asserted right is not so vague and
amorphous that its enforcement would strain judicial compe-
tence.” Price, 390 F.3d at 1109. The State argues that the
CWA is too vague because it does not specify how rates
should be set to cover the enumerated costs, and that no regu-
lations governing the calculation of foster care maintenance
payments fill the gap. We disagree. Our precedent strongly
suggests, if not compels, the conclusion that the asserted right
is sufficiently specific. The itemized list of expenses to be
covered under § 675(4)(A) is very similar to those that we
found to be “precisely enumerate[d]” in Price. See 390 F.3d
at 1112.
In Price, the displaced persons were entitled to “reimburse-
ment for actual and reasonable moving expenses, security
deposits, credit checks, and other moving-related expenses,
including any interim living costs.” Id. Here, the statute con-
templates similarly concrete expenditures including “food,
clothing, shelter, daily supervision, school supplies, a child’s
personal incidentals, liability insurance with respect to a child,
reasonable travel to the child’s home for visitation, and rea-
sonable travel for the child to remain in the school in which
the child is enrolled at the time of placement.” See 42 U.S.C.
§ 675(4)(A). There is no basis for concluding that the statute
here is any less specific than the statute examined in Price.
We agree with Foster Parents that courts may review the
State’s compliance with a requirement to set rates that cover
the costs of the enumerated expenditures. If a statute or appli-
cable federal requirement does not prescribe a particular
methodology for calculating costs, we give deference to a rea-
sonable methodology employed by the State. See Wilder, 496
U.S. at 518-19. Though some deference may be owed to the
State’s methodology, the absence of a uniform federal meth-
odology for setting rates “does not render the [statute] unen-
forceable by a court.” Id. at 519. In Allenby II, we recognized
the lack of methodology specified by federal law to measure
17846 CALIFORNIA STATE FOSTER PARENT v. WAGNER
the costs. 589 F.3d at 1021 (“While the CWA identifies the
types of items that must be covered, it does not prescribe any
particular metric to measure the cost of those items. Each
state develops its own plan.”). Nonetheless, we did not find
that such a statutory gap presented any significant obstacles
to adjudicating the parties’ dispute, and we required the State
to comply with the methodology that the State had itself
adopted to implement the CWA. See id. at 1023.
[9] Other courts considering the combined effect of
§§ 672(a) and 675(4)(A) have also concluded that the asserted
right satisfies Blessing’s second factor. See C.H. v. Payne,
683 F. Supp. 2d 865, 877-78 (S.D. Ind. 2010); Allenby I, 459
F. Supp. 2d at 925 (“[S]ection 675(4)(a) contains an explicit
and detailed provision for determining payments to foster care
providers.”); Missouri Child Care Ass’n v. Martin, 241 F.
Supp. 2d. 1032, 1041 (W.D. Mo. 2003) (“Payments [in sec-
tion 675(4)(A)] are based either on itemized costs or reason-
able overhead, issues routinely entrusted to the judiciary in
both statutory and common law actions.”), aff’d, 294 F.3d
1034 (8th Cir. 2002). We have found only one exception. See
Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456,
540-41 (D. Neb. 2006). Blessing’s second factor is satisfied.
[10] The third and final Blessing factor requires that “the
provision giving rise to the right is couched in mandatory,
rather than precatory, terms.” Price, 390 F.3d at 1109. In
Price, this Court concluded that the HCDA’s similar provi-
sion in 42 U.S.C. § 5304(k) “was clearly mandatory rather
than precatory or merely hortatory.” Id. at 1114. The structure
of 42 U.S.C. § 5304(k) is identical to that of 42 U.S.C.
§ 672(a) because both statutes require that grantee states make
payments to identified beneficiaries. Compare 42 U.S.C.
§ 672(a) (“[e]ach State with a plan approved under this part
shall make foster care maintenance payments”) with 42
U.S.C. § 5304(k) (“[e]ach grantee [State] shall provide for
reasonable benefits”) (emphases added). Indeed, in this case,
the State does not seriously contend that the § 672(a)’s lan-
CALIFORNIA STATE FOSTER PARENT v. WAGNER 17847
guage is precatory rather than mandatory. We therefore con-
clude that § 672(a)’s language is clearly mandatory, satisfying
the third and final Blessing factor.
[11] There is, moreover, an additional important distinc-
tion between this case and Gonzaga that bolsters our conclu-
sion that §§ 672(a) and 675(4)(A) create an enforceable
federal right. Unlike the FERPA, the CWA provides no
administrative means through which a foster parent may ask
the State to make foster care maintenance payments that cover
the mandatory costs. The fact that Foster Parents have no
administrative forum in which to raise their concerns lends
additional support to our conclusion that Congress intended to
create an enforceable right here, just as the presence of an
administrative mechanism “buttressed” the Supreme Court’s
opposite conclusion in Gonzaga. See 536 U.S. at 289-90. The
State is of course correct that the absence of an administrative
enforcement mechanism does not compel the conclusion that
Congress intended to create a right enforceable in the courts,
but it is a relevant consideration that weighs in Foster Parents’
favor.
[12] For all the above reasons, we hold that §§ 672(a) and
675(4)(A) of the Child Welfare Act establish a presumptively
enforceable right under § 1983 to foster care maintenance
payments from the State that cover the cost of the expenses
enumerated in § 675(4)(A). Though the right itself is only
“presumptively enforceable” by § 1983, Gonzaga, 536 U.S. at
284, the State has not rebutted the presumption, because the
statute contains no express prohibition on enforcement, and
there is no administrative mechanism through which
aggrieved foster parents can seek redress for inadequate main-
tenance payments. We therefore hold that Foster Parents have
access to a remedy under § 1983 to enforce their federal right.
CONCLUSION
The district court correctly held that Foster Parents could
maintain their suit under § 1983. We therefore affirm the dis-
17848 CALIFORNIA STATE FOSTER PARENT v. WAGNER
trict court’s order denying the motion to dismiss.
AFFIRMED
CALLAHAN, Circuit Judge, concurring:
I concur because I agree that the application to this case of
the three-part test set forth by the Supreme Court in Blessing
v. Freestone, 520 U.S. 329, 340-41 (1997), is controlled by
our opinion in Price v. City of Stockton, 390 F.3d 1105 (9th
Cir. 2004). Were I writing on a blank slate, I would not find
that there is the requisite “unambiguously conferred right” for
a private action under 42 U.S.C. § 1983. See Gonzaga Univer-
sity v. Doe, 536 U.S. 273, 283 (2002).