Alessi ex rel. Alessi v. Pennsylvania, Department of Public Welfare

BECKER, Circuit Judge,

concurring in the judgment in part and dissenting in part.

I join in the majority’s lament as to the state of affairs that has given rise to this lawsuit. I also agree with the majority’s holding that the preliminary injunction cannot stand, and (incidentally) with its underlying reasoning that the kinds of procedures Alessi has challenged are, in all probability, not regulated by the due process clause. I dissent, however, from the majority’s decision to allow the injunctive claim to proceed on remand.

Although Alessi does challenge a kind of state procedure, her injunctive claims bear little relation to that challenge. She does not seek to require the state to employ different procedures; instead, she seeks an injunction requiring the state to pay for her mental health treatment. In essence, she seeks to vindicate a substantive right created by a state statute. Because I believe that the Eleventh Amendment bars a federal court from awarding such relief, I would not only dissolve the preliminary injunction, but also direct the district court to dismiss the injunctive claim forthwith.

I.

In the preliminary injunction hearing, the DPW presented an Eleventh Amendment defense to the district court, which rejected it. Because the Department has not mentioned the Eleventh Amendment its brief before this court, I must first address the appropriateness of considering that issue nonetheless.

An Eleventh Amendment defense can be waived. 1 Nonetheless, “because the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States,” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 , 105 S.Ct. 3142, 3145 , 87 L.Ed.2d 171 (1985), the Supreme Court has fashioned unusually stringent waiver requirements in this context. Thus, “a State will be deemed to have waived its immunity ‘only where stated “by the most express language or by such overwhelming implication ... as [will] leave no room for any other reasonable construction.” ’ ” Id. at 239-40 , 105 S.Ct. at 3146 (citations omitted). Atascadero involved the construction of a state statute, but the principle that silence or ambiguity cannot imply waiver applies more generally. Thus, “the failure of attorneys representing the state to assert the [Eleventh Amendment] defense does not waive it,” P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 1213 (3d ed. 1988) [hereinafter Hart & Wechsler\ even if the defense is asserted for the first time in the Supreme Court itself. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 467 , 65 S.Ct. 347, 352 , 89 L.Ed. 389 (1945). Under these principles, we cannot deem DPW to have waived its Eleventh Amendment defense simply by failing to include it in its brief at this stage of the proceedings.

By its express terms, the Eleventh Amendment, where applicable, creates a jurisdictional defect. 2 “It deprives a feder *1455 al court of power to decide certain claims against States that otherwise would be within the scope of Art. Ill’s grant of jurisdiction.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119-20 , 104 S.Ct. 900, 918-19 , 79 L.Ed.2d 67 (1984) (emphasis added); see also, e.g., Ford Motor Co., 323 U.S. at 467 , 65 S.Ct. at 352 (“The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power_”). Thus, “a federal court must examine each claim to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment.” Pennhurst, 465 U.S. at 121 , 104 S.Ct. at 919 . It is, to be sure, somewhat anomalous that a constitutional limitation on the federal judicial power can be waived by a party 3 or abrogated by Congress, 4 but that is the Supreme Court doctrine we are bound to apply. Because the Eleventh Amendment defense is jurisdictional if applicable and cannot be deemed waived on these facts, I find it appropriate, if not necessary, to consider that issue. 5

II.

In conceptualizing what purports to be a procedural due process case, it is helpful to begin by considering what Alessi is not seeking. She is not seeking the right to notice, a hearing, an attorney, or an impartial arbitrator. She does not desire to make a statement, present witnesses, discover evidence, introduce evidence, or confront adverse witnesses. She demands neither more carefully recorded factfinding, nor a more favorable burden of proof, nor a stricter standard of judicial review. In short, she does not assert the right to any kind of procedure designed to reduce the risk of an erroneous determination whether she is entitled to the benefit she seeks. The reason is simple enough: DPW concedes Alessi’s entitlement to free treatment *1456 under section 4201 of the MH/MR Act, but argues that that entitlement is qualified by the availability of funds. More adjudicative “procedure,” as that term is commonly understood, would clearly be pointless.

Alessi attacks assertedly “procedural” violations of a very different sort — the “procedures” by which DPW (1) requests its funds and (2) allocates those funds among the various counties. “Procedures” for requesting funds involve the tactics by which DPW persuades, cajoles, implores, or negotiates with the executive, the legislature, and various other state agencies, each of which is itself competing for the same limited pool of funds. “Procedures” for allocating funds involve the way the agency makes wholesale policy determinations about how best to apportion its unrestricted funds among various counties and programs, in light of statutory obligations that, as a practical matter, are not always jointly satisfiable. “Procedures” of this sort embrace notions fundamentally different from the more familiar adjudicative procedures that make up the conceptual universe of cases like Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), and Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).

The linchpin of the majority’s opinion is the proposition that the “procedures” challenged by Alessi “[are] not the sort of state action that triggers procedural due process protection.” Ante at 1453. I am inclined to agree, for any suggestion to the contrary must distinguish a settled line of cases holding that the due process clause does not constrain the methods by which a state actor may legislate, promulgate rules, or develop generally applicable policies, 6 the rejection of which in this context would raise troubling and difficult questions of justiciability, 7 federalism, 8 and the scope of a federal court’s remedial equitable powers. 9 Despite these reservations, however, I do not believe that the constitutionality of the “procedures” by which DPW seeks and allocates its funds is before us at this time.

Alessi alleges that these procedures violate constitutional standards. She does not seek an injunction to impose new and improved procedures on DPW in the future, however. Nor does she seek damages for harm already done to her by DPW’s past conduct. 10 She does seek a declaratory judgment that DPW’s procedures are unconstitutional, but that claim (despite the district court’s apparent receptivity towards it) is not yet before us. Primarily, Alessi seeks a permanent injunction ordering DPW to pay for her treatment, and what is before us at this time is a preliminary injunction temporarily affording that very relief. Because I believe that the Eleventh Amendment barred the district *1457 court from affording such relief — regardless of the constitutionality of the DPW’s procedures for raising and allocating its funds — I would dissolve the injunction on that basis.

III.

Under due process analysis, “[t]he categories of substance and procedure are distinct.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 , 105 S.Ct. 1487, 1492 , 84 L.Ed.2d 494 (1985). Despite familiar conceptual objections to this distinction, 11 maintaining it is the only way to reconcile how the due process clause can itself create no affirmative entitlement to government services, 12 but nonetheless protect substantive entitlements created and defined exclusively by state law. 13 In this case, federal law supplies only procedures, for Alessi concedes that her underlying entitlement to free treatment arises, if at all, under state law. On the basis of that entitlement, Alessi sought and obtained a preliminary injunction ordering treatment, not more procedures. In any meaningful sense, her claim for treatment is “substantive,” not “procedural,” and therefore state, not federal. Stripped to its essentials, therefore, this case presents the question whether a federal court can order a state agency to obey state law.

In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984), the Supreme Court held that the Eleventh Amendment bars suits in federal court against state officials for violation of state law. The present case is indistinguishable from Pennhurst. As in Pennhurst, the decree under consideration is an injunction ordering DPW to provide benefits that the MH/MR Act allegedly requires it to provide. This case also involves a closely related claim that is indisputably federal (the claim seeking a declaratory judgment that some of DPW’s procedures are unconstitutional), but Pennhurst makes clear that the doctrine of pendent jurisdiction cannot create jurisdiction over claims — such as Alessi’s injunc-tive claims — otherwise barred by the Eleventh Amendment. See id. at 117-23 , 104 S.Ct. at 917-200 . Pennhurst thus prevents federal courts from entertaining claims of entitlement against state agencies that arise under state law, and Alessi cannot avoid this rule by attempting to recharacterize what is obviously a state-law claim for subsidized treatment as a federal claim for more procedure. 14

In sum, I agree with the majority’s decision that the preliminary injunction cannot stand. I base this conclusion, however, not on the likely constitutionality of the challenged procedures, but on the district court’s lack of jurisdiction to entertain an artfully pleaded claim for benefits under Pennsylvania’s MH/MR Act. Thus, I would order the district court to dismiss Alessi’s injunctive claim forthwith. Although I have expressed some doubt about whether the due process clause restricts the kind of procedures Alessi seeks to have declared unconstitutional, I believe that her declaratory judgment claim is properly be *1458 fore the district court at this time, and may proceed.

. See Clark v. Barnard, 108 U.S. 436 , 2 S.Ct. 878 , 27 L.Ed. 780 (1883).

. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of anoth *1455 er State, or by Citizens or Subjects of any Foreign State.

U.S. Const, amend. XI.

. See Hart & Wechsler, at 1213 (pointing out that ordinarily “the parties lack power to confer jurisdiction on the federal courts").

. See Pennsylvania v. Union Gas Co., - U.S. -, 109 S.Ct. 2273, 2286 , 105 L.Ed.2d 1 (1989) (Stevens, J., concurring) ("A statute cannot amend the constitution.”).

. In a footnote in Patsy v. Board of Regents of Florida, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982), the Supreme Court rejected the view that the Eleventh Amendment is "jurisdictional in the sense that it must be raised and decided by this Court on its own motion." Id. at 515 n. 19, 102 S.Ct. at 2567 n. 19 (emphasis added). Footnote nineteen thus created an exception to the general rule that federal courts have an independent duty to determine their own jurisdiction. See Mansfield, Coldwater & Lake Mich. Ry. v. Swan, 111 U.S. 379, 382 , 4 S.Ct. 510, 511 , 28 L.Ed. 462 (1884). The Court’s two stated reasons for doing so — first, "the importance of state law in analyzing Eleventh Amendment questions,” and second, the possibility that the state “may, in some circumstances, waive this defense,” 457 U.S. at 515 n. 19, 102 S.Ct. at 2567 n. 19 — give some clue as to the import of footnote nineteen. The respondents in Patsy appeared to waive their Eleventh Amendment defense before the Supreme Court: after having been expressly asked about the issue at oral argument, counsel urged the Court to affirm solely on other grounds. See id. Given this background, footnote nineteen might simply be a reaffirmation of the well-settled anomaly that a state can waive a defense that would otherwise be jurisdictional. On this view, footnote nineteen would have no applicability here, where DPW’s silence cannot imply waiver. But even if footnote nineteen rested further on an institutional concern about requiring the Supreme Court to evaluate issues of state law in the first instance, it is probably inapplicable nonetheless, because (1) the Eleventh Amendment issue was presented to, and decided by, the district court in this case; (2) courts of appeals are institutionally far better situated than the Supreme Court to construe the laws of the states in which they sit, and (3) the kind of Eleventh Amendment question in Patsy — whether a particular agency is"an arm of the state for purposes of the Eleventh Amendment,” id. — is much more bound up in particular intricacies of state law and practice than the kind of Eleventh Amendment question here— whether a federal court can vindicate a state-law entitlement on the basis of a procedural due process attack against the state’s administration of that entitlement program. Finally, even if footnote nineteen were applicable, we could still raise an Eleventh Amendment issue sua sponte, as the Patsy Court itself did, and rule on it if we deem it "appropriate” to do so. See id. Because of the various differences between this case and Patsy , I would deem it appropriate, even assuming it were not mandatory, for this court to “ask and answer" jurisdictional questions — "first, of this court, and then of the court from which the record comes." Mansfield, 111 U.S. at 382 , 4 S.Ct. at 511 .

. See, e.g., Minnesota St. Bd. for Comm. Colleges v. Knight, 465 U.S. 271, 283-87 , 104 S.Ct. 1058, 1065-67 , 79 L.Ed.2d 299 (1984); Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441 , 36 S.Ct. 141 , 60 L.Ed. 372 (1915).

. Cf. Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691, 710 , 7 L.Ed.2d 663 (1962) (holding that a claim presents a nonjusticiable political question when it “lack[s] judicially discoverable and manageable standards for resolving it" or when it cannot be decided "without an initial policy determination of a kind clearly for nonjudicial discretion”). After Baker , the various categories of political questions are undisputably narrow. See Davis v. Bandemer, 478 U.S. 109, 126-27 , 106 S.Ct. 2797, 2807-08 , 92 L.Ed.2d 85 (1986). Nonetheless, there would appear to be few inquiries less susceptible of "judicially discoverable and manageable standards” and more appropriately left to "nonjudicial discretion” than, for example, whether a state agency is lobbying the governor and the state legislature for adequate funding with sufficient vigor.

. Cf. Rizzo v. Goode, 423 U.S. 362, 377-80 , 96 S.Ct. 598, 607-08 , 46 L.Ed.2d 561 (1976) (holding that "appropriate consideration must be given to principles of federalism” in determining whether to impose injunctions mandating new operating procedures on state agencies).

. Cf. Missouri v. Jenkins, - U.S. -, 109 S.Ct. 1930 , 104 L.Ed.2d 402 (1989) (granting certiora-ri to consider whether a court can order statewide tax increases to fund a broad remedial decree it has imposed).

. Of course, the Eleventh Amendment would bar a federal court from awarding such damages to be paid out of state funds. See Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974). Alessi could have sought damages against White in his individual capacity, but failed to do so.

. See, e.g., Easterbrook, "Substance and Due Process,” 1982 Sup.Ct.Rev. 85, 112-13 ("Procedural rules are just a measure of how much the substantive entitlements are worth, of what we are willing to sacrifice to see a given goal attained.”).

. See, e.g., DeShaney v. Winnebago Co. Dep’t of Soc. Servs., - U.S. -, 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989); Maher v. Hoe, 432 U.S. 464 , 97 S.Ct. 2376 , 53 L.Ed.2d 484 (1977).

. See, e.g., Loudermill, 470 U.S. at 539-41 , 105 S.Ct. at 1491-93 ; Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970).

. Nor can the preliminary injunction ordering subsidized treatment be justified as somehow remedial to Alessi’s declaratory judgment claim, which does attack the DPW's procedures. It is well-settled that "the nature of the [constitutional] violation determines the scope of the [equitable] remedy” a federal court may impose. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 , 91 S.Ct. 1267, 1276 , 28 L.Ed.2d 554 (1971). Thus, even if a federal court found DPW’s fundraising and allocation procedures to be unconstitutional, the only equitable relief it could impose as a result would be an injunction — be it structural, negative, or somewhere in between — designed to ensure that DPW adopts and employs constitutionally adequate procedures in the future. As noted above, however, the district court ordered treatment, not more procedure.