# Del A. v. Edwin Edwards, Individually and as Governor of the State of Louisiana

> Court of Appeals for the Fifth Circuit · September 28, 1988 · 855 F.2d 1148

URL: https://www.frixlaw.com/law-library/cases/9478098

## Case

- **Full name:** DEL A., Et Al., Plaintiffs-Appellees, v. Edwin EDWARDS, Individually and as Governor of the State of Louisiana, Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 28, 1988
- **Citations:** 855 F.2d 1148; 1988 U.S. App. LEXIS 13537; 1988 WL 93495
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Thornberry, Williams, Smith
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478098

## How later opinions describe it (automated extraction)

- discussing but not deciding the question

## Opinion text

JERRY E. SMITH, Circuit Judge,
dissenting:
Counsel for the plaintiffs has acknowledged that in accordance with plaintiffs’ view of this case, the governor and other high state officials can be made to stand trial and pay personal money damages if certain regulatory details — such as a reporting deadline — are not met in the implementation of the Child Welfare Act. The majority has concluded that if, for example, a report is not filed as often as the Act requires, the defendants have violated a clearly-established right cognizable under section 1983 and that, hence, this qualified-immunity appeal must fail. Today’s holding leads, inadvertently, to an untoward result that undermines the very federal aid program at issue — most assuredly a consequence which Congress could not have intended.
I.
The majority has acknowledged the possibility that we can exercise discretion, in a qualified-immunity appeal, to examine the sufficiency of the claims. Although the majority’s decision to forego that inquiry is not in the abstract unreasonable, I instead would, in this case, analyze the claims for legal sufficiency and would conclude that the plaintiffs have not stated a federal cause of action.
*1155 Both the Second and Eighth Circuits consider collateral issues where a public official appeals from a lower court judgment denying summary judgment. See San Filippo v. United States Trust Co., 737 F.2d 246 , 255 (2d Cir.1984), cert. denied, 470 U.S. 1035 , 105 S.Ct. 1408 , 84 L.Ed.2d 797 (1985); Drake v. Scott, 812 F.2d 395, 397-99 (8th Cir.), modified on other grounds, 823 F.2d 239 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 455 , 98 L.Ed.2d 395 (1987). These circuits have considered the legal sufficiency of section 1983 claims where the defendants have taken qualified-immunity interlocutory appeals. They have determined that it will often be better and more economical for the appeals court to determine issues closely related to the issue on appeal, rather than forcing the district court to revisit old issues reformulated. 1 Since the gravaman of a qualified-immunity interlocutory appeal is whether the rights alleged have been clearly established, both circuits have used such appeals to determine whether the alleged rights existed at all. San Filippo, 737 F.2d at 255; Drake, 812 F.2d at 399 .
I would apply such a rule to determine the legal sufficiency of the claims here. Qualified immunity exists to protect public officials, in appropriate circumstances, from the rigors of vexatious litigation; interlocutory appeals are allowed from orders denying qualified immunity because we wish to protect officials’ right to insulate their personal resources from costly, unnecessary trials. However, the majority overlooks the policies undergirding the doctrine of qualified immunity when it decides not to examine the merits of plaintiffs’ complaint.
Here, the majority holds that the Adoption Assistance Act unambiguously defines specific rights which state officials may not violate. Reduced to its essentials, the plaintiffs’ claimed cause of action leads to bizarre results, at least in some of its applications. For example, the Act requires that the state must adopt a case plan for each affected child within 60 days after the child enters care, and must review the plan every 6 months. The plaintiffs, through their attorneys, have acknowledged that under their theory of the case, if state human resources officials wait, say, 75 days before adopting a plan as to a child, or review the child’s plan only every 7 months, the Governor of the State of Louisiana is personally (i.e., from his own pocket) liable to pay damages to that child under section 1983, as are the other individual defendants.
The plaintiffs, however, will not prevail in this lawsuit unless they can also prove that the defendants were responsible for violating at least some of these rights, and that plaintiffs have a right to collect money damages from'the defendants for such a violation. The majority would require these high-level state officials to engage in the arduous task of defending against the factual allegations of the thousands of class plaintiffs and eighteen individual plaintiffs.
The plaintiffs do not allege that the officials specifically decided to deprive any foster child of his or her rights, but only that the officials consciously managed Louisiana’s foster care system in an inept manner, and thus indirectly violated the children’s rights. But the majority today holds that the officials must undertake this burdensome defense and answer these charges at trial before we shall decide whether the children have ever had any right to sue the officials for damages in the first place.
The policies underlining qualified immunity require courts to determine, as early as possible, whether there is any merit to the plaintiffs’ claims, so as to avoid exposing state officials to vexatious litigation based upon decisions those officials have made in good faith pursuant to their public duties. Since I can find no reason to be *1156 lieve that the plaintiffs are entitled to damages, I would hold that this court has discretionary power to consider pendent claims on interlocutory appeal, and would exercise that discretion to dismiss the plaintiffs’ Adoption Assistance Act claims. I now turn to the deficiencies which I perceive in those claims.
II.
The majority’s opinion decides only one issue: whether the Adoption Assistance Act clearly establishes rights upon which the foster children may base the instant suit. The majority does not consider whether these children have the right to sue high-level state officials for damages. As I read the Supreme Court’s pronouncements, however, the very arguments which the Court has used to justify the right of individuals to sue under federal funding statutes for injunctive relief preclude the right of individuals to sue state officials for damages.
In Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981), the Court reviewed its prior spending-clause jurisprudence as follows:
[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.... [Hjowever, legislation enacted pursuant to the spending power is much in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ... We must carefully inquire, then, whether Congress in § 6010 imposed an obligation on the States to spend state money to fund certain rights as a condition to receiving federal moneys under the Act....
Id. at 17-18, 101 S.Ct. at 1540 (emphasis added). Thus, the federal government may agree to provide the state with funding when the state agrees to use the federal assistance to benefit third parties.
In Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418 , 107 S.Ct. 766 , 93 L.Ed.2d 781 (1987), the court revisited Pennhurst to determine whether public housing laws and regulations imposed enforceable obligations upon the governmental entities that participated in a federal public housing assistance program. The plaintiffs were tenants suing a local public housing authority to enforce rent regulations enacted by Congress. The local housing authority contended that the regulations, contained in a federal spending statute, were not enforceable obligations against it. The Court disagreed:
In our view, the benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983....
Id. at 775. Thus, like third-party beneficiaries to a contract, the beneficiaries of federal funding statutes may sue for entitlements the states have promised to deliver.
Although the Court’s analogy to contract law in Pennhurst supports the children’s right to sue the state for violating the Adoption Assistance Act, it does not support the children’s action against the governor and his aides individually for damages. Under the Pennhurst contract analogy, the children are third-party beneficiaries to an agreement between the federal government and Louisiana to provide specific services to the children. Under the principles of contract law, the children have the right, as third-party beneficiaries, to sue the state for the benefits the state has undertaken to provide. Like an insurance company that contracts with a manufacturer to provide health insurance to all the manufacturer’s employees, for example, the state is liable to the children to provide the contracted services.
However, just as the insurance company’s liability does not extend in damages to its chief executive officer or other company officials, the liability of the state should not extend to its governor or his aides. It simply makes no sense to require the highest officials of the state to assume state *1157 liabilities that may have been generated by low-level civil servants or mid-level administrators.
Several Supreme Court opinions support the proposition that state officials do not owe harmed individuals, from their own pockets, where the state violates a federal spending statute. In Rosado v. Wyman, 397 U.S. 397, 420 , 90 S.Ct. 1207, 1222 , 25 L.Ed.2d 442 (1970), the Court held that welfare claimants were “entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies ... should the State not develop a conforming plan with a reasonable period of time.” The Rosado court concluded that a federal court could adjudicate disputes under a federal spending statute because even if the state lost, it would have to choose merely between assuming the additional costs of complying with the federal statute and discontinuing the use of federal funds. Id. at 420-21 , 90 S.Ct. at 1222 .
In Pennhurst, the Supreme Court reiterated the Rosado analysis, and added a few other observations about relief available in such cases. “In no case,” the Court opined in dicta, “have we required a State to provide money to plaintiffs_” Pennhurst, 451 U.S. at 29 , 101 S.Ct. at 1546 . The Court also wrote,
In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.
Id. at 28 , 101 S.Ct. at 1545 . 2 Subsequent to Pennhurst, Justice White, announcing the judgment of the Court, explained why damages are not available, even against the offending state, to plaintiffs suing upon the requirements of a spending clause statute:
This is because the receipt of federal funds under typical Spending Clause legislation is a consensual matter: the State or other grantee weighs the benefits and burdens before accepting the funds and agreeing to comply with the conditions attached to their receipt. Typically, before funds are advanced, the appropriate federal official will determine whether the grantee’s plan, proposal, or program will satisfy the conditions of the grant or other extension of federal funds, and the grantee will have in mind what its obligations will be. When in a later private suit brought by those for whose benefit the federal money was intended to be used it is determined, contrary to the State’s position, that the conditions attached to the funds are not being complied with, it may be that the recipient would rather terminate its receipt of federal money than assume the unanticipated burdens.
Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 596 , 103 S.Ct. 3221, 3229 , 77 L.Ed.2d 866 (1983).
In these cases, various Justices have suggested that states deserve the right to refuse federal funding before courts may impose judicial sanctions. This rule implies that the federal judiciary should defer to the state government’s right to withdraw from its funding agreement with the federal government. Presumably, the Supreme Court, recognizing that its jurisdiction over the case rests solely upon the state’s consent, chooses only prospective remedies (i.e., injunctions rather than money damages) as a form of federal-state comity. 3
*1158 Moreover, we must also consider what Louisiana has agreed to do in exchange for federal funds: nothing more than to exercise its own legislative powers to establish legal rules that only it can enact. The Constitution carefully segregates the powers of the federal and state governments: “[N]one of the Framers questioned that the Constitution created a federal system with some authority expressly granted the Federal Government and the remainder retained by the several States.” Atascadero, 473 U.S. at 238-39 n. 2, 105 S.Ct. at 3145 n. 2. See, e.g., The Federalist Nos. 39, 45. Consequently, many governmental functions, such as regulation of family life, are beyond the realm of federal regulation.
What is beyond the ability of the federal government to regulate, however, is not necessarily beyond its power to influence. Congress may condition federal grants upon an agreement that the recipient states must enact legislation that is solely within the powers of the states to promulgate. South Dakota v. Dole, — U.S. -, 107 S.Ct. 2793 , 97 L.Ed.2d 171 (1987). Congress does not thus invade powers reserved to the states, since the states may choose the simple expedient of refusing the federal funds. Id., 107 S.Ct. at 2798. Congress enters the field not as a regulator exceeding its constitutional powers, but as a provider of funds fixing the terms upon which others may partake of its largess. Id.
It should go without saying, then, that the states retain sole sovereign power to govern individual relations where the Constitution either expressly delegates a power to the states, 4 or implicitly withholds regulatory authority from the federal government. 5 Since the states retain sole authority to regulate in these areas, we should confine remedies to those that enforce the contractual agreement between the participating state and the federal government; otherwise federal spending powers will tend to swallow state sovereign powers.
The Sixth Circuit faced this problem squarely in Lesher v. Lavrich, 784 F.2d 193 (6th Cir.1986). There, a mother, joined by her second husband, sought to regain her children from the Ohio foster-care system. She argued in part that Ohio neglect laws, which Ohio had applied to remove her children from her custody, were invalid because those laws did not comply with the federal Adoption Assistance Act. She sought damages from state officials and an injunction undoing the judgment to remove her children from her custody. The district court declined, and the court of appeals affirmed, holding that the plaintiff was not entitled to the relief she had requested. The court reasoned that the Adoption Assistance Act did not, and could not, preempt Ohio regulation of its foster-care system:
An otherwise valid finding of neglect or dependency could not be rendered invalid —at least not under this statute — merely by the failure of the State to undertake an obligation to offer preventive services. Such a result would permit even clearly abusive parents to escape the State’s child protection apparatus, and could not have been any part of the Congressional intent underlying the rights that may be established by the Act.
784 F.2d at 198 . Accordingly, since the Adoption Assistance Act does not mean that Ohio courts no longer have the power to enforce Ohio child-care laws, Ohio public officials were not liable to this plaintiff for damages under that act. Id.
*1159 In Scrivner v. Andrews, 816 F.2d 261 (6th Cir.1987), the Sixth Circuit held that damages are never available against state officials in an action to enforce the Adoption Assistance Act. There, three social workers employed by the Kentucky Cabinet of Human Services arranged a visitation schedule that allowed a natural mother to see her child for only one hour on alternate weekends. A state hearings officer overruled the social workers, and decreed that the mother could see her child twice a week for three hours at a time. The mother and child, seeking damages, challenged the order of the hearing officer on the ground that it denied them “meaningful visitation” rights secured by the Adoption Assistance Act.
The appeals court ruled against the mother and her child. As an alternative holding, the court held that damages were not available under the Adoption Assistance Act. Relying upon Lesher, Scrivner quoted Justice White’s opinion in Guardians to the effect that damages are never available to plaintiffs who allege only that the state has violated a spending clause statute. Scrivner, 816 F.2d at 264 . The Lesher/Scrivner rule may be generalized as follows: Where the federal government relies upon powers solely within the province of the states as a means of enacting federal policies, it cannot create federal rights entitling individual plaintiffs to damages or retroactive injunctions.
Here, the plaintiffs have advanced the theory that the Adoption Assistance Act creates a federal right permitting them to sue the governor of Louisiana. If they are correct, it seems that the Constitution would never prevent the federal government from enacting laws allowing the citizens of a state to sue that state’s officials. Congress could regulate even areas the Constitution explicitly forbids it to regulate, provided states participating in a federal grant program agreed to enact the specific regulations themselves. Whether the states ever actually kept the bargain would be irrelevant — plaintiffs could sue state officials in their individual capacities as a matter of federal right. Only the state’s consent would be relevant to whether plaintiffs could sue on this new federal right.
To the contrary, however, I conclude that the consent of the state alone may not subject any citizen, including its governor, to suit in federal court for alleged violations of laws which Congress itself could not have enacted. I would hold that the Adoption Assistance Act creates individual rights that can be enforced only prospectively and only against the participating states themselves, or against state officials only in their official capacities.
III.
Thus, I conclude that all of the plaintiffs’ claims should be dismissed. The majority, though ably analyzing the single legal question it addresses, unfortunately does not speak to the most basic issues at the heart of this litigation. It does not consider whether the plaintiffs’ constitutional claims are clearly established — and they are not — nor does it address whether the plaintiffs have any right at all to force the officials to pay damages out of their own pockets. Thus, the majority allows a single dubious claim to frustrate the defendants’ right, under the doctrine of qualified immunity, to avoid having to face a jury and answer, in damages, novel claims of unestablished constitutional “rights.”
Ironically, this result promises to frustrate the policies which the suit itself was instituted to enforce. It creates a powerful disincentive for state officials to participate in such programs because of the possibility that they will incur sizeable, personal financial liability if a few deadlines are not met or some intricate regulatory detail is not followed to the letter. The result is that the very persons whom the federal statute is designed to benefit — the qualifying children of Louisiana — are the big losers.
At this point, the analysis returns to its starting point. We have jurisdiction here because of the need, recognized in Mitchell v. Forsyth and Harlow v. Fitzgerald, to protect public officials from the chilling effect which potential litigation has upon *1160 the exercise of policymaking discretion in the administration of programs such as those carried out under the Child Welfare Act. The holding today sends those very officials back into the courtroom to face probable trial, and possible personal liability, despite the absence of any violation of clearly-established rights.
With the best of intentions, the majority has placed an intolerable burden upon public officials who, wishing to take advantage of federal assistance, are faced with a more-than-imaginary conflict of interest: They must decide between substantial financial assistance for a deserving and disadvantaged class of their own citizens, on the one hand, and reasonably insuring themselves against personal financial disaster, on the other. Congress could not have intended so unpalatable and counter-productive a scheme, and our system of federalism would appear to forbid it. I respectfully dissent.
. The Second Circuit has developed a generalized rule for these circumstances. Under its doctrine of pendent appellate jurisdiction, the court first determines whether it has jurisdiction over an appeal of any of the issues raised. Once the appellate court has recognized jurisdiction over the case, it may exercise its discretion to consider otherwise nonappealable issues that sufficiently overlap the appealable issues. San Filippo, 737 F.2d at 255 (citing cases).
. I recognize that under Wright , private actions to enforce individual rights under funding statutes may become more prevalent. Nonetheless, I quote this language from Pennhurst to emphasize that spending clause statutes primarily calibrate the relationships between the federal government and the entities with which it does business. Such statutes affect individual rights only to the extent of the conditions the statutes impose upon the relationship between the federal government and the funded entity.
. See Guardians, 463 U.S. at 603-04 , 103 S.Ct. at 3233 (White, J.) (analogizing, for the purposes of determining available relief, spending clause cases to eleventh amendment immunity cases). Cf. Atascadero State Hosp. v. Scanlon, 473 U.S. 234 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985) (state's consent to abide by spending statute obligations is not consent enough to waive eleventh amendment sovereign immunity). See also Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction *1158 of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L.Rev. 1033, 1124-27 (1983) (suggesting that the Supreme Court, cognizant of the limits of federal power over the states, is reluctant, in a case based upon the spending clause, to hold that a state has waived eleventh amendment immunity).
. South Dakota v. Dole, 107 S.Ct. at 2793 (the states retain the exclusive right, under the twenty-first amendment, to determine whether a teenager may buy alcohol even where the federal government requires states receiving federal highway funds to establish twenty-one as the minimum drinking age).
. E.g., Oklahoma v. Civil Serv. Comm’n, 330 U.S. 127 , 67 S.Ct. 544 , 91 L.Ed. 794 (1947) (allowing Congress to require federally-funded state governmental entities to adhere to the Hatch Act despite Congress’ inability to regulate local politics).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478098. Public record. Not legal advice.