California Alliance of Child & Family Services v. Allenby

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ALLIANCE OF CHILD AND 

FAMILY SERVICES,

Plaintiff-Appellant,

v.

CLIFF ALLENBY, Interim Director of No. 08-16267

the California Department of

Social Services, in his official  D.C. No.

3:06-cv-04095-MHP

capacity; MARY AULT, Deputy

OPINION

Director of the Children and

Family Services Division of the

California Department of Social

Services, in her official capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted

October 7, 2009—San Francisco, California

Filed December 14, 2009

Before: Alfred T. Goodwin and Pamela Ann Rymer,

Circuit Judges, and George H. Wu,* District Judge.

Opinion by Judge Rymer;

Concurrence by Judge Wu

*The Honorable George H. Wu, United States District Judge for the

Central District of California, sitting by designation.

16421

16424 CACFS v. ALLENBY

COUNSEL

William F. Abrams, East Palo Alto, California, for the appel-

lant.

George Prince, Deputy Attorney General, San Francisco, Cal-

ifornia, for the appellees.

OPINION

RYMER, Circuit Judge:

California Alliance of Child and Family Services, an asso-

ciation of private, non-profit agencies that provide adoption,

foster care, and group home services, appeals the summary

judgment entered in favor of Cliff Allenby, the interim direc-

tor of the California Department of Social Services (the

State). We must determine whether the State is in compliance

with the federal Child Welfare Act’s (CWA) mandate that a

participating state “cover the cost” of certain enumerated

items for foster care group homes when it pays at a rate that

is approximately 80 percent of actual 1986-1987 costs

adjusted for inflation. The district court concluded that this

substantially complies with the CWA. We disagree; the natu-

ral meaning of “cover the cost” is to pay in full, not in part.

As the State isn’t doing this, we reverse.

I

The CWA, codified at 42 U.S.C. §§ 670-679b, was enacted

in 1980 and creates an opt-in scheme whereby states can

CACFS v. ALLENBY 16425

receive federal funding to assist in the costs associated with

raising children who are dependants or wards of the state. To

qualify for federal funding, the state agrees to abide by certain

requirements.

The state must first submit a plan to the Secretary of the

United States Department of Health and Human Services

(DHHS). See 42 U.S.C. § 671(a). Among other things, the

plan must “provide[ ] for foster care maintenance payments in

accordance with” other provisions of the CWA. 42 U.S.C.

§ 671(a)(1). The state must also designate a state agency to

administer the plan once approved, and must agree to amend

its plan to comply with any changes made to the CWA or

other applicable federal law. 42 U.S.C. § 671(a)(2); 45 C.F.R.

§ 1356.20(d)(1).

The CWA further provides that any state with an approved

plan “shall make foster care maintenance payments on behalf

of each” qualifying child. 42 U.S.C. § 672(a)(1). The phrase

“foster care maintenance payments” is defined 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.

In the case of institutional care, such term shall

include the reasonable costs of administration and

operation of such institution as are necessarily

required to provide the items described in the pre-

ceding sentence.

42 U.S.C. § 675(4)(A).

California has created its own statutory scheme in an

16426 CACFS v. ALLENBY

attempt to comply with the CWA.1 It has designated the Cali-

fornia Department of Social Services (CDSS) as the agency

responsible for administering California’s CWA plan. See

Cal. Welf. & Inst. Code §§ 11229, 11460(a). The plan calls

for CDSS to pay foster care providers on “a per child per

month rate in return for the care and supervision of the [ ]

child placed with them.” Cal. Welf. & Inst. Code § 11460(a).

“Care and supervision” is defined in such a way that it sub-

stantially mirrors the federal definition of foster care mainte-

nance payments. It covers “food, clothing, shelter, daily

supervision, school supplies, a child’s personal incidentals,

liability insurance with respect to a child, and reasonable

travel to the child’s home for visitation.” Cal. Welf. & Inst.

Code § 11460(b).

California uses the Rate Classification Level system (RCL)

to determine the amount of the foster care maintenance pay-

ments it makes. See Cal. Welf. & Inst. Code § 11462. The

RCL uses a point system that classifies group homes in four-

teen categories—the funding they receive depends on the cat-

egory. See Cal. Welf. & Inst. Code § 11462(b), (d)-(f). A

group home’s RCL is based on “the level of care and services

that the group home operator projects will be provided during

the period of time for which the rate is being established,”

Cal. Welf. & Inst. Code § 11462(e), and payments are made

on a per child, per month basis, Cal. Welf. & Inst. Code

§ 11460(a). The rates were initially made effective on July 1,

1990, relying on data from a study of 1985 calendar year costs

and since then reflect adjustments made, starting with the

1986-1987 fiscal year, based on the California Necessities

Index (CNI). See Cal. Welf. & Inst. Code § 11462(c). The

1

California’s Title IV-E State Plan consists of a compilation of Califor-

nia statutes, regulations, All County Letters, All County Information

Notices, County Fiscal Letters, and other documents that are intended to

implement federal requirements for the federal foster care program in

order to claim Federal Financial Participation in payments made under the

program.

CACFS v. ALLENBY 16427

CNI is a weighted average of changes in various costs of liv-

ing for low-income consumers, including food, clothing, fuel,

utilities, rent and transportation. See, e.g., Cal. Welf. & Inst.

Code § 11453(a). Thus, these annual adjustments reflect any

increase or decrease in the cost of living, as measured by one

constant calculation of inflation—the CNI. See id. Beginning

with the 2000-2001 fiscal year, the California statute has pro-

vided that “the standardized schedule of rates [for group

homes] shall be adjusted annually by an amount equal to the

CNI computed pursuant to Section 11453, subject to the avail-

ability of funds. The resultant amounts shall constitute the

new standardized schedule of rates.” Cal. Welf. & Inst. Code

§ 11462(g)(2).2

II

The Alliance accepts the State’s system for calculating

costs to be covered, but takes issue with the State’s under-

funding of foster care maintenance payments as a result of

having failed to adjust the standardized schedule of rates by

an amount equal to the CNI since 2001. Accordingly, it

brought this action, asserting that the State is violating

CWA’s mandate to cover costs, and seeking declaratory and

injunctive relief under 42 U.S.C. § 1983.

After discovery, the parties filed cross motions for sum-

mary judgment. In a joint statement of undisputed facts they

agreed that since the inception of the RCL, the payment

schedule has increased by approximately 27 percent; that

since the 1990-1991 fiscal year, the actual costs incurred by

group homes for the care and supervision of children has

2

See also Cal. Welf. & Inst. Code § 11453(c)(3) (“In any fiscal year

commencing with the 2000-01 fiscal year to the 2003-04 fiscal year, inclu-

sive, when there is no increase in tax relief pursuant to the applicable para-

graph of subdivision (a) of Section 10754 of the Revenue and Taxation

Code, then any increase pursuant to subdivision (a) of this section shall be

suspended.”).

16428 CACFS v. ALLENBY

increased by more than 27 percent; and that the CNI has

increased by approximately 59 percent since the 1990-1991

fiscal year. The State admits that as of 2005-2006, it was

making foster care maintenance payments at an amount

approximately 80 percent3 of what they would have been had

it made yearly CNI adjustments.

The district court granted summary judgment in favor of

the State. The court concluded that the State based its initial

reimbursement standard on the statutory criteria mandated by

the federal statute. Although the court recognized that the

standard rate schedule could become so out of sync with the

cost of items listed in the CWA that the California system

would be in violation of federal law, it concluded that the pro-

cess for determining foster care payment rates remains sub-

stantially compliant given that today, the RCL provides for

about 80 percent of the costs associated with those items.

Finally, the court held that the CWA does not prohibit the

State from taking budgetary considerations into account.4

III

“We review the district court’s decision to grant summary

judgment de novo. Thus, viewing the evidence in the light

most favorable to the nonmoving party, we must determine

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant sub-

stantive law.” Fichman v. Media Center, 512 F.3d 1157, 1159

3

127 percent divided by 159 percent (the level payments would have

been at had the State followed its initial plan to tie adjustments to the CNI)

equals 79.8 percent.

4

The Alliance subsequently moved for reconsideration under Federal

Rules of Civil Procedure 59(e) and 60(b) on the footing that the State’s

new proposed budget would result in payments decreasing to 70 percent

of the amount group homes would have been entitled to had the State fol-

lowed the adjustment scheme it originally implemented. The district court

denied leave to file the motion because the proposed budget had not yet

been passed, making the Alliance’s new claims unripe.

CACFS v. ALLENBY 16429

(9th Cir. 2008) (internal citation omitted); see also Fed. R.

Civ. P. 56(c). We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 1331.5

IV

[1] The threshold question in this case is what the CWA

actually mandates the State to do. Section 672(a)(1) provides

that the State “shall make foster care maintenance payments

on behalf of each” qualifying child—that is, “payments to

cover the cost of (and the cost of providing)” various daily

living expenses, 42 U.S.C. § 675(4)(A). We therefore must

answer two questions: (1) What does it mean to “cover”

costs? and (2) how are “costs” defined? We address each

question in turn.

[2] In determining what it means to “cover” costs, we look

to the relevant statute for context. “In interpreting a statute,

we first look to the plain meaning of its text.” See Paul

Revere Insurance Group v. United States, 500 F.3d 957, 962

(9th Cir. 2007). Absent a definition in the statute itself, in

5

We note that district courts across the country have split on whether the

CWA creates a private right of action. Compare Cal. Alliance of Child &

Fam. Servs. v. Allenby, 459 F.Supp.2d 919, 922-25 (N.D. Cal. 2006) (find-

ing a private right of action under the CWA); Cal. State Foster Parent

Assoc. v. Wagner, No. C 07-05086 WHA, 2008 WL 191283 (N.D. Cal.

Jan. 22, 2008) (same); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277,

302-04 (N.D. Ga. 2003) (same); Missouri Child Care Ass’n v. Martin, 241

F.Supp.2d 1032, 1037-42 (W.D. Mo. 2003) (same), with Carson P. ex rel.

Foreman v. Heineman, 240 F.R.D. 456, 539-41 (D. Neb. 2007) (finding

no private right of action under the CWA); Olivia Y. ex rel. Johnson v.

Barbour, 351 F.Supp.2d 543, 564-65 (S.D. Miss. 2004) (same). Yet, the

state makes no argument on appeal on this point. If the question were

jurisdictional, we would nonetheless be required to raise the concern our-

selves; but the Supreme Court has stated explicitly that “whether a cause

of action exists is not a question of jurisdiction.” Burks v. Lasker, 441 U.S.

471, 476 n.5 (1979). Accordingly, our familiar rule that issues not raised

in the briefing are deemed waived, see United States v. Loya, 807 F.2d

1483, 1486-87 (9th Cir. 1987), is applicable.

16430 CACFS v. ALLENBY

attempting to divine the meaning of a particular word we gen-

erally use the “ordinary, contemporary, common meaning.”

Wilderness Society v. U.S. Fish & Wildlife Service, 353 F.3d

1051, 1060 (9th Cir. 2003) (en banc) (internal quotation

marks omitted); see United States v. Smith, 155 F.3d 1051,

1057 (9th Cir. 1998). Here, the term “cover” and the phrase

“cover the costs” are both left undefined by the CWA. In

these circumstances, consulting common dictionary defini-

tions is the usual course. See Wilderness Society, 353 F.3d at

1061.

[3] Various dictionaries indicate that to “cover” in the con-

text of costs means an amount sufficient to pay all the costs.

See, e.g., Concise Oxford English Dictionary 330 (Catherine

Soanes & Angus Stevenson, eds., 11th ed., Oxford Univ.

Press 2004) (“(of money) be enough to pay (a cost): there are

grants to cover the cost of materials for loft insulation”);

Webster’s Third New International Dictionary 524 (Merriam-

Webster 2002) (“to be adequate to defray or compensate”).

This comports with the common understanding of what it

means to “cover the cost.” For example, we normally under-

stand an obligation to maintain sufficient funds in a bank

account to cover checks as requiring us to provide enough

money in reserve to offset the amount of the check. Eighty

percent of the amount won’t do. On the other hand, it is easy

to imagine an alternate scenario where “cover” is qualified.

For example, parents might tell their child they will help

cover the cost of college. In such a scenario, the common

understanding would be that the parents will cover some, but

not all, of their child’s college-related expenses. But here,

because the CWA leaves “cover” unqualified, the common

understanding is that it must refer to meeting all the costs of

food, clothing, shelter, etc. See 42 U.S.C. § 675(4)(A).

[4] The question then becomes one of measuring the cost

of those covered items. While the CWA identifies the types

of items that must be covered, it does not prescribe any partic-

ular metric to measure the cost of those items. Each state

CACFS v. ALLENBY 16431

develops its own plan. California uses the RCL system to

make this determination. At the time it implemented its CWA

plan, the State looked to 1985 calendar year costs from a pilot

study for the various items, see Cal. Welf. & Inst. Code

§ 11462(c), and created separate levels for different group

homes based on the “care and services that the group home

operator projects will be provided during the period of time

for which the rate is being established,” Cal. Welf. & Inst.

Code § 11462(e). The California statute moreover provides

for yearly adjustments in the proper RCL calculation, tied to

the CNI—in other words, it makes sure if the cost of certain

items rise or fall, the RCL takes that change in cost into

account. See Cal. Welf. & Inst. Code §§ 11453(a), 11462(c).

Thus, California decided that the original RCL, as adjusted by

the CNI each year, is the cost of the basket of items the CWA

requires to be covered. It is undisputed that the State is no

longer paying this amount—rather, it is paying somewhere in

the neighborhood of 80 percent of the amount. In other words,

the CWA requires California to cover the cost of certain items

and California has developed a formula to determine what

those items cost, but is now only partially covering the cost

of those items. This runs afoul of the CWA’s mandate.

The State’s arguments to the contrary are not persuasive. It

points out that the provision for a CNI adjustment in its CWA

plan is subject to availability of funds. However, the State dis-

avows relying on this “out” in this case; its brief represents

that “California is not using ‘lack of funds’ as an ‘excuse’ to

avoid complying with the Act.” In any event, the State devel-

oped no record to support the possibility that it skipped a

yearly CNI adjustment for lack of funds. Consequently, we

decline both parties’ invitation to express an opinion on

whether availability of funds is a proper limitation under the

CWA on the obligation to cover costs.

The State emphasizes that the CWA does not mandate cov-

ering “actual” costs, which is true. However, this is a straw-

man as the Alliance does not contend that the State must

16432 CACFS v. ALLENBY

cover every dime spent on the care of foster children. Rather,

its position is that the State is not paying the amount the State

itself treats as costs—that is, the RCL as adjusted each year

in accordance with the CNI—and this is what falls short of

complying with the CWA.

The State notes that its plan has been approved by DHHS.

While also true, the record leaves us unable to say what—if

any—significance this has. For instance, the parties indicated

at argument that DHHS approves only the structure of Cali-

fornia’s plan, and does not audit what the State pays. Beyond

this we have been alerted to no action or opinion by DHHS

to which we would owe deference. See Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skid-

more v. Swift & Co., 323 U.S. 134 (1944).

[5] In sum, the CWA does not set rates or tell states how

they are supposed to cover costs. It does not require states to

apply an index such as the CNI, or to adopt any particular sys-

tem for arriving at the amount to be reimbursed. But the CWA

does direct participating states to make foster care mainte-

nance payments that “cover the cost of” listed items such as

food, clothing, and shelter. Nothing required California to opt

in to the CWA program, but once it agreed to take federal dol-

lars, it is “bound to ‘comply with federally imposed condi-

tions.’ ” Missouri Child Care Ass’n v. Cross, 294 F.3d 1034,

1036 (8th Cir. 2002) (quoting Pennhurst State Sch. & Hospi-

tal v. Halderman, 451 U.S. 1, 17 (1981)). In our judgment

those conditions are clear—the State must pay for the cost of

listed items. 42 U.S.C. § 675(4)(A). And to do so, under the

system the State chose to follow, it must make yearly CNI

adjustments (or some other inflationary adjustment) to

account for the rise (or fall) in its standardized schedule of

rates.

CACFS v. ALLENBY 16433

V

[6] The Alliance and the State dispute whether California

is in substantial compliance with the CWA.6 As a general rule,

a state that accepts federal funds with conditions attached

must strictly comply with those conditions—substantial com-

pliance will not be good enough. See Withrow v. Concannon,

942 F.2d 1385, 1386-87 (9th Cir. 1991) (requiring strict com-

pliance with a requirement in federal regulations of a review

hearing within a pre-specified number of days). The CWA

plainly attaches the condition that participating states “shall”

cover the listed costs. This said, DHHS regulations indicate

that the federal government is willing to accept “substantial

compliance” at least in some circumstances. See, e.g., 45

C.F.R. §§ 1355.39, 1356.71(c)(5). And it makes sense that

compliance cannot, as a practical matter, invariably be strict.

Thus, California’s system necessarily averages costs across

each of the fourteen categories by which it classifies group

homes, and the CNI is just a proxy for actual increases (or

decreases) in cost. Likewise, that the State’s definition of cov-

ered items for foster care maintenance payments does not pre-

cisely mirror the federal statute does not make it non-

compliant. Compare 42 U.S.C. § 675(4)(A), with Cal. Welf.

& Inst. Code § 11460(b). The State’s plan generally tracks the

federal definition of daily living expenses, making the State

substantially compliant. Beyond this, however, we have diffi-

culty seeing how payment of approximately 80 percent of the

costs of providing the listed items can qualify as substantial

compliance. The federal objective is for those costs to be cov-

ered. As 80 percent isn’t even close, and the State makes no

serious argument that it is, we hold that its foster care mainte-

nance payments do not substantially comply with the CWA.

6

The concept appears to have originated in Missouri Child Care Ass’n,

241 F.Supp.2d 1032, 1046 n.7 (W.D. Mo. 2003) (“While it is true that

Missouri need only be in substantial compliance with the [Act], a failure

to even consider the relevant statutory factors cannot be substantial com-

pliance.”).

16434 CACFS v. ALLENBY

VI

[7] Because the State is not covering the costs required by

the CWA, we reverse the district court’s order granting sum-

mary judgment to the State and denying summary judgment

to the Alliance. There are no factual disputes in this case and

therefore, the Alliance is entitled to judgment as a matter of

law. We remand to the district court to determine the proper

scope of declaratory and injunctive relief.

REVERSED and REMANDED.

WU, District Judge, concurring:

I agree that the district court’s grant of summary judgment

should be reversed and remanded but for different reasons

than delineated in the majority’s opinion.

Initially, the majority characterizes the Child Welfare Act

(“CWA”), 42 U.S.C. §§ 670-79b, as having a “mandate” that

a participating State “cover the cost” of certain enumerated

items for children’s foster care homes. See 42 U.S.C.

§ 675(4)(A). It then seems to suggest that it is adopting the

“natural meaning” of the term “cover the cost” which is “to

pay in full, not in part.” The majority also states that “because

the CWA leaves ‘cover’ unqualified, the common understand-

ing is that it must refer to meeting all the costs of food, cloth-

ing, shelter, etc. [emphasis added].”1 Later, the majority

indicates that it is acceptable under the CWA for a State to

create a plan which allows for an estimate of the enumerated

1

Paying “in full” “all” of a foster care provider’s costs for supplying

food, clothing, shelter, etc. would be comparable to reimbursing the pro-

vider’s actual expenditures for such items. However, that is not what the

majority ultimately concludes is required by the State Plan or what it finds

to be sufficient under the CWA.

CACFS v. ALLENBY 16435

costs for various categories of foster care providers (such as

the Rate Classification Level or “RCL” herein) and to pay

such estimates where the plan also has a provision for annual

adjustments (such as the California Necessities Index or

“CNI” herein). I agree with the latter conclusion but cannot

concur with the initial ones. More importantly, I differ with

the majority in regards to the issues which need to be ruled

upon in this appeal.

It is not necessary to decide what “cover the cost” means

under the CWA or for this court to determine whether “sub-

stantial compliance” with the “CWA’s cost requirements suf-

fices” in order to resolve this appeal. Further, discretion

warrants that we not do so herein. Rather, because the State

Plan requires annual CNI adjustments and California clearly

has not fully complied with that requirement (or obtained

relief from that obligation), reversal can and should be based

on that ground alone.

“In order for a State to be eligible for payments under [the

CWA],” it must have a plan approved by the Secretary of the

Department of Health and Human Services which contains

certain prerequisites, one of which is the provision for foster

care maintenance payments. See 42 U.S.C. § 671(a). The

State Plan enacted by California and approved by the Secre-

tary requires that “[b]eginning with the 2000-01 fiscal year,

the standardized schedule of rates [for the RCL] shall be

adjusted annually by an amount equal to the CNI computed

pursuant to [Cal. Welf. & Inst. Code] Section 11453, subject

to the availability of funds.” Cal. Welf. & Inst. Code

§ 11462(g)(2). On the merits herein, everyone (including the

State) seems to accept that: 1) the State Plan enacted by Cali-

fornia pursuant to 42 U.S.C. § 671 passes muster; 2) the State

Plan requires California to include annual adjustments to the

RCL payments (although a lack of funds can affect the

increases under section 11462(g)(2)); and 3) California is not

in compliance with its Plan in regards to annual adjustments

as structured by the State and approved by the Secretary. Nev-

16436 CACFS v. ALLENBY

ertheless, at best, all that the Plaintiff has actually shown is

that the State has failed to comply with its own statute (i.e.

Cal. Welf. & Inst. Code § 11462(g)(2)). The State has con-

ceded (and the Plaintiff does not contend otherwise) that Cali-

fornia is not using any unavailability of funds contention to

justify its failure to pay the adjusted amounts.

The action before the Court is for violation of the CWA.

Without a provision in the CWA for a cost-of-living adjust-

ment or its equivalent, it is difficult to see how the CWA itself

is violated by the State’s conduct. The majority in fact makes

the case for this observation when it states (with emphasis

added here):

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. California uses the RCL sys-

tem to make this determination . . . . The California

statute moreover provides for yearly adjustments in

the proper RCL calculation, tied to the CNI — in

other words, it makes sure if the cost of certain items

goes up or down, the RCL takes that rise or fall in

cost into account . . . . Thus, California decided that

the original RCL, as adjusted by the CNI each year,

is the cost of the basket of items the CWA requires

to be covered . . . . In other words, the CWA requires

California to cover the cost of certain items and Cal-

ifornia has developed a formula to determine what

those items cost, but is now only partially covering

the cost of those items.

The opinion later reaffirms this point when it indicates that:

“[i]n sum, the CWA does not set rates or tell states how they

are supposed to cover costs. It does not require states to apply

an index such as the CNI, or to adopt any particular system

for arriving at the amount to be reimbursed.”

CACFS v. ALLENBY 16437

Normally, the difficult issue which would have to be

resolved herein is whether the violation of the State’s obliga-

tions under a cooperative federal-state welfare program could

give rise to a federal right enforceable by means of a 42

U.S.C. § 1983 lawsuit.2 See generally Blessing v. Freestone,

520 U.S. 329, 340-48 (1997); Suter v. Artist M, 503 U.S. 347,

350-64 (1992). However, in this case, the State in a motion to

dismiss specifically raised the issues of “whether the CWA

confers a [sic] individual right of enforcement upon plaintiff

for foster care maintenance payments” and whether the Plain-

tiff “has a private right of action under 42 U.S.C. § 1983 to

enforce the provisions of the Child Welfare Act at issue.”

California Alliance of Child and Family Services v. Allenby,

459 F.Supp.2d 919, 921-22 (N.D. Cal. 2006). The district

court answered “yes” to both of those questions in a published

decision. Id. However, the State did not file a cross-appeal as

to that decision. Moreover, as noted in footnote 5 of the

majority’s opinion, the State raised no argument on appeal as

to whether the CWA creates a private right of action in this

context. Thus, the State has effectively (but, perhaps unfortu-

nately, given the importance of those questions and that anal-

ysis) waived its right to litigate those issues and has conceded

them for purposes of this appeal.

As noted in Pennhurst State School & Hospital v. Halder-

man, 451 U.S. 1, 28 (1981), “[i]n legislation enacted pursuant

to [Congress’s] spending power, the typical remedy for state

noncompliance with federally imposed conditions is not a pri-

vate cause of action for noncompliance but rather action by

the Federal Government to terminate funds to the State.” That

is precisely the remedy incorporated into the CWA. Further-

2

A “claim for violation of state law is not cognizable under § 1983.”

Cornejo v. County of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007).

“To state a claim for relief in an action brought under § 1983, [plaintiffs]

must establish that they were deprived of a right secured by the Constitu-

tion or laws of the United States, and that the alleged deprivation was

committed under color of state law.” American Mfrs. Mut. Ins. Co. v. Sul-

livan, 526 U.S. 40, 49-50 (1999).

16438 CACFS v. ALLENBY

more, the procedure set out in the statute requires the Secre-

tary to initially consider the question of compliance and only

thereafter provides for judicial review.

42 U.S.C. § 1320a-2a(a) and (c) state:

(a) In general

The Secretary, in consultation with the State agen-

cies administering the State programs under parts B

and E of subchapter IV of this chapter, shall promul-

gate regulations for the review of such programs to

determine whether such programs are in substantial

conformity with —

(1) State plan requirements under such parts

B and E,

(2) implementing regulations promulgated

by the Secretary, and

(3) the relevant approved State plans.

*****

(c) Provisions for administrative and judicial

review

The regulations referred to in subsection (a) of this

section shall —

(1) require the Secretary, not later than 10 days

after a final determination that a program of the State

is not in conformity, to notify the State of —

(A) the basis for the determination; and

(B) the amount of the Federal matching funds (if

any) to be withheld from the State;

CACFS v. ALLENBY 16439

(2) afford the State an opportunity to appeal the

determination to the Departmental Appeals Board

within 60 days after receipt of the notice described

in paragraph (1) (or, if later, after failure to continue

or to complete a corrective action plan); and

(3) afford the State an opportunity to obtain judi-

cial review of an adverse decision of the Board,

within 60 days after the State receives notice of the

decision of the Board, by appeal to the district court

of the United States for the judicial district in which

the principal or headquarters office of the agency

responsible for administering the program is located.

Pursuant to Section 1320a-2a(a) and (c), the Secretary has

promulgated consistent regulations. See, e.g., 45 C.F.R.

§§ 1355.32, 1355.39. A full or partial review can be initiated

“at any time, based on any information, regardless of the

source that indicates that the State may no longer be operating

in substantial conformity.” 45 C.F.R. § 1355.32(c)(1).

Given the statutory scheme whereby the issue of substantial

conformity of California’s foster care program with the CWA

(42 U.S.C. Chapter 7, Subchapter IV, Part E) and the

approved State Plan is to be first considered by the Secre-

tary’s designee and then by the Departmental Appeals Board

before review by the district court, we should be somewhat

reluctant to reach issues such as the meaning of the term

“cover the costs” and whether (and to what extent) “substan-

tial compliance” can satisfy the requirements of 42 U.S.C.

§ 675(4)(A) before the Secretary has been given the opportu-

nity to initially rule on California’s conformity/compliance.

The mere fact that the parties have chosen to litigate this case

so as to preclude that appropriate review by the Secretary

does not mean that this court should unnecessarily decide

issues which are within the Secretary’s expertise.

In sum, it is apparently undisputed that California is not

complying with the requirements of the State Plan approved

16440 CACFS v. ALLENBY

by the Secretary because it has failed and is currently failing

to provide the full annual adjustments in the form of CNI

increases to the RCLs for group foster care maintenance pro-

viders as required by Cal. Welf. & Inst. Code § 11462(g)(2).

Given that misfeasance/nonfeasance, it is unnecessary to

resolve what “cover the cost” in 42 U.S.C. § 675(4)(A) means

since, irrespective of any definition which we give it, in the

end California is still non-compliant with its own State Plan

and California has not sought to raise on this appeal whether

the Plaintiff can bring a private action under section 1983 to

enforce the provisions of the CWA purportedly at issue

herein. Similarly, given that the applicable statute (42 U.S.C.

§ 1320a-2a) and its concomitant regulations provide that the

Secretary is to initially determine whether a State’s program

is in “substantial conformity” with the requirements of the

CWA, its regulations and the relevant approved State Plan,

the issue of whether California’s practice (of providing only

about 80% of the full annual adjusted payments to foster care

providers) is in “substantial compliance” with the CWA

should be addressed by the Secretary before this court inter-

jects itself into the fray.

In light of the above, I agree that the district court’s grant

of summary judgment in favor of the State should be reversed

and remanded, but for different reasons and on a much more

limited basis than pronounced in the majority’s opinion.