Amicus Curiae Brief — Joshua Baker, Director, South Carolina Department of Health and Human Services, Petitioner v. Planned Parenthood South Atlantic, et al.

No. 19-1186

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOSHUA BAKER, Director, South Carolina

Department of Health and Human Services,

Petitioner,

v.

PLANNED PARENTHOOD SOUTH ATLANTIC, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------BRIEF FOR NEBRASKA, INDIANA,

AND 17 OTHER STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------CURTIS T. HILL, JR.

Attorney General

of Indiana

THOMAS M. FISHER

Solicitor General

JULIA C. PAYNE

Deputy Attorney General

OFFICE OF THE INDIANA

ATTORNEY GENERAL

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

DOUGLAS J. PETERSON

Attorney General of

Nebraska

DAVID T. BYDALEK

Deputy Attorney General

JAMES A. CAMPBELL

Solicitor General

Counsel of Record

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

Counsel for Amici Curiae

[Additional Counsel Listed At End Of Brief ]

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF THE ARGUMENT .....................

2

REASONS FOR GRANTING THE PETITION .....

4

I.

II.

The circuit conflict over private enforcement of the provider-choice plan requirement warrants review to ensure proper

Medicaid Act accountability ......................

4

Uncertainty surrounds the general framework for determining when Spending

Clause statutes create private rights enforceable under Section 1983 .................... 10

A. The evolution of private-enforceability

doctrine has left critical questions unanswered .............................................. 11

1. Do third-party beneficiaries of a

contract between governmental entities have a right to enforce the

agreement? ..................................... 12

2. Do the Blessing factors still apply?....

14

3. What is the relevance of congressionally prescribed enforcement

mechanisms? ................................... 15

4. What is the relevance of a statutory

provision’s placement within a directive to federal officials? .............. 17

ii

TABLE OF CONTENTS—Continued

Page

B. Cases finding private rights enforceable

under Section 1983 spawn widespread

lawsuits, burden state resources, and

intrude on state sovereignty ................. 19

CONCLUSION..................................................... 24

iii

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Choate,

469 U.S. 287 (1985) ...................................................5

Alexander v. Sandoval,

532 U.S. 275 (2001) .................................................17

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ......................................... passim

ASW v. Oregon,

424 F.3d 970 (9th Cir. 2005) ....................................22

Ball v. Rodgers,

492 F.3d 1094 (9th Cir. 2007) ..................................20

Blessing v. Freestone,

520 U.S. 329 (1997) ................................. 3, 11, 13, 14

Bond v. United States,

564 U.S. 211 (2011) .................................................23

Bontrager v. Indiana Family &

Social Services Administration,

697 F.3d 604 (7th Cir. 2012) ....................................20

Bryson v. Shumway,

308 F.3d 79 (1st Cir. 2002) ......................................19

BT Bourbonnais Care, LLC v. Norwood,

866 F.3d 815 (7th Cir. 2017) ....................................19

Center for Special Needs Trust

Administration, Inc. v. Olson,

76 F.3d 688 (8th Cir. 2012) ......................................21

iv

TABLE OF AUTHORITIES—Continued

Page

Davis Next Friend LaShonda D. v.

Monroe County Board of Education,

526 U.S. 629 (1999) .................................................23

Doe v. Kidd,

501 F.3d 348 (4th Cir. 2007) ....................................19

Does v. Gillespie,

867 F.3d 1034 (8th Cir. 2017) .......................... passim

Frew ex rel. Frew v. Hawkins,

540 U.S. 431 (2004) ...................................................5

Gee v. Planned Parenthood of Gulf Coast, Inc.,

139 S. Ct. 408 (2018) ....................................... passim

Gonzaga University v. Doe,

536 U.S. 273 (2002) ......................................... passim

Grammer v. John J. Kane Regional

Centers—Glen Hazel,

570 F.3d 520 (3d Cir. 2009) ............................... 14, 20

Henry A. v. Willden,

678 F.3d 991 (9th Cir. 2012) ....................................21

Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co.,

513 U.S. 527 (1995) .................................................14

Jones v. District of Columbia,

996 A.2d 834 (D.C. 2010).........................................11

Legacy Community Health Services, Inc. v. Smith,

881 F.3d 358 (5th Cir. 2018) ....................................20

Moore v. Sims,

442 U.S. 415 (1979) .................................................22

v

TABLE OF AUTHORITIES—Continued

Page

Murphy v. Smith,

138 S. Ct. 784 (2018) ...............................................14

National Bank v. Grand Lodge,

98 U.S. 123 (1878) ...................................................13

National Federation of Independent

Business v. Sebelius,

567 U.S. 519 (2012) ...................................................5

New York State Citizens’ Coalition

for Children v. Poole,

922 F.3d 69 (2d Cir. 2019) ..................... 15, 21, 22, 23

Pennhurst State School &

Hospital v. Halderman,

451 U.S. 1 (1981) ............................................. 6, 7, 11

Pharmaceutical Research & Manufacturers

of America v. Walsh,

538 U.S. 644 (2003) .................................................13

Planned Parenthood of Greater Texas

Family Planning & Preventative

Health Services, Inc. v. Smith,

913 F.3d 551 (5th Cir. 2019) ................................ 9, 23

Planned Parenthood of Indiana, Inc. v.

Commissioner of the Indiana

State Department of Health,

699 F.3d 962 (7th Cir. 2012) .............................. 17, 18

Planned Parenthood of Kansas v. Andersen,

882 F.3d 1205 (10th Cir. 2018) ................................16

Rabin v. Wilson-Coker,

362 F.3d 190 (2d Cir. 2004) .....................................21

vi

TABLE OF AUTHORITIES—Continued

Page

Rolland v. Romney,

318 F.3d 42 (1st Cir. 2003) ......................................21

S.D. ex rel. Dickson v. Hood,

391 F.3d 581 (5th Cir. 2004) ....................................14

Sabree ex rel. Sabree v. Richman,

367 F.3d 180 (3d Cir. 2004) .....................................20

Suter v. Artist M.,

503 U.S. 347 (1992) .................................................18

University of Texas Southwestern

Medical Center v. Nassar,

570 U.S. 338 (2013) .................................................17

Wilder v. Virginia Hospital Association,

496 U.S. 498 (1990) ................................. 3, 11, 12, 15

Wright v. City of Roanoke Redevelopment

& Housing Authority,

479 U.S. 418 (1987) ........................................... 11, 12

STATUTES AND REGULATIONS

42 U.S.C. 671 ...............................................................21

42 U.S.C. 671(a)(16) ....................................................21

42 U.S.C. 672 ...............................................................21

42 U.S.C. 673(a)(3) ......................................................22

42 U.S.C. 675 ...............................................................21

42 U.S.C. 675(1)...........................................................21

42 U.S.C. 1320a-2 .................................................. 17, 18

42 U.S.C. 1396a(a)..................................... 3, 5, 6, 19, 20

vii

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. 1396a(a)(8) ..................................................19

42 U.S.C. 1396a(a)(10) ................................................20

42 U.S.C. 1396a(a)(13)(A) ...........................................19

42 U.S.C. 1396a(a)(23) ........................................ 4, 7, 19

42 U.S.C. 1396a(a)(30) ................................................17

42 U.S.C. 1396a(b).........................................................8

42 U.S.C. 1396a(p)(1) ....................................................7

42 U.S.C. 1396a(bb).....................................................20

42 U.S.C. 1396c ......................................................... 6, 8

42 U.S.C. 1396n(c)(2)(C) & (d)(2)(C) ...........................20

42 U.S.C. 1396p(d)(4)(C) .............................................21

42 U.S.C. 1396r ...........................................................21

42 U.S.C. 1396r(b)(2) ...................................................20

42 U.S.C. 1396r-6(a) ....................................................21

42 U.S.C. 1983 ..................................................... passim

42 U.S.C. 1988 .............................................................22

42 C.F.R. 1002.3 ............................................................7

S.C. Code Regs. 126-404 ...............................................8

viii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Barbara S. Klees, Christian J. Wolfe & Catherine A. Curtis, Centers for Medicare & Medicaid Services, Brief Summaries of Medicare &

Medicaid: Title XVIII & Title XIX of the Social

Securities Act (Nov. 20, 2017), available at

https://bit.ly/3cgDvAh ...............................................5

Richard A. Lord, Williston on Contracts (4th ed.

2013) ........................................................................13

William W. Story, A Treatise on the Law of Contracts (4th ed. 1856) ................................................13

1

INTEREST OF AMICI CURIAE1

The Amici States of Nebraska, Indiana, Alabama,

Alaska, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma,

South Dakota, Tennessee, Texas, Utah, and West Virginia add their voices to the many seeking this Court’s

guidance on “the appropriate framework for determining” when federal Spending Clause legislation creates

“a cause of action . . . under [42 U.S.C.] 1983—an important legal issue . . . worthy of this Court’s attention.” Gee v. Planned Parenthood of Gulf Coast, Inc.,

139 S. Ct. 408, 409 (2018) (Thomas, J., dissenting from

denial of certiorari); accord Pet. App. 45a (Richardson,

J., concurring) (expressing “hope that clarity will be

provided”). Less than two years ago, 15 States asked

this Court to take up that question in a Medicaid case

similar to this one. Indiana et al. Amici Br., Gee v.

Planned Parenthood of Gulf Coast, No. 17-1492. And

just last year, 22 States sought clarity on that issue in

a challenge to a State’s foster-care-maintenance payments. Connecticut et al. Amici Br., Poole v. N.Y. State

Citizens’ Coalition for Children, No. 19-574.

Amici States have a substantial interest in this

Court clarifying when federal statutes create private

rights enforceable under Section 1983. This topic affects multiple areas of state law, ranging from Medicaid policies to foster-care programs. Improperly

extending private causes of actions through Spending

1

Pursuant to Supreme Court Rule 37.2(a), amici timely notified the parties of their intent to file this brief.

2

Clause legislation exposes States to costly federal litigation and intrudes on areas traditionally entrusted to

them. With so much at stake, Amici States ask this

Court to grant review and provide guidance.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

This case presents an issue of national importance

and federal circuit conflict: whether the providerchoice plan requirement of the Medicaid Act is privately enforceable. Six circuits, including the Fourth

Circuit in this case, have held that Medicaid recipients

may bring suit to enforce the provision; one circuit has

held that they may not. Three Justices of this Court

have already recognized the significance of that conflict. Gee, 139 S. Ct. at 408 (Thomas, J., dissenting from

denial of certiorari). That lower-court split is, on its

own, a sufficient reason to grant certiorari.

In addition, private enforcement of the providerchoice plan requirement undermines the contractual

nature of Medicaid and the related political accountability Congress implemented. Medicaid is a federal

spending program, not a civil-rights statute. For this

reason, federal law gives States substantial discretion

to redesign or alter their Medicaid programs, with the

understanding that the federal government may withhold funding if a State’s program does not meet the

Medicaid Act’s requirements. Thus, the proper remedy

when a State fails to comply with conditions in the

Act is not a private lawsuit under Section 1983 but

3

withdrawal of federal funding by the Secretary of

Health and Human Services.

Of perhaps even greater significance, this case

presents an ideal opportunity to clarify the general

framework for determining when Spending Clause

statutes provide rights that are privately enforceable

under Section 1983. This Court in Wilder v. Virginia

Hospital Association, 496 U.S. 498 (1990), permitted

private enforcement of a Medicaid plan requirement in

42 U.S.C. 1396a(a), but has since curtailed dramatically the circumstances in which private parties may

enforce federal Spending Clause statutes. Most notably, Gonzaga University v. Doe, 536 U.S. 273 (2002), and

Armstrong v. Exceptional Child Center, Inc., 575 U.S.

320 (2015), repudiated the permissive approach that

Wilder and its progeny endorsed. But in the wake of

those decisions, four critical aspects of the analytical

framework remain unsettled and continue to perplex

lower courts: (1) whether third-party beneficiaries of a

contract between governmental entities may enforce

that contract; (2) whether courts should still apply the

multifactor balancing test that this Court announced

in Blessing v. Freestone, 520 U.S. 329 (1997); (3) the relevance of congressionally prescribed enforcement

mechanisms; and (4) the relevance of a statutory provision’s placement within a directive to federal officials.

Amidst this uncertainty, lower courts are allowing

pervasive private enforcement of Spending Clause

statutes under Section 1983. This permeates many

areas of the law, including Medicaid, foster-care, and

4

adoption funding. Permitting these private claims significantly burdens States, infringes their sovereignty,

and upends the federal-state balance.

Faced with widespread confusion among the circuits and lower-court case law placing a heavy strain

on the States, it is this Court’s “job to fix” the situation.

Gee, 139 S. Ct. at 410 (Thomas, J., dissenting from denial of certiorari). The Court can and should do that by

granting certiorari in this case.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I.

The circuit conflict over private enforcement of the provider-choice plan requirement warrants review to ensure proper

Medicaid Act accountability.

Three Justices have already recognized that the

first question raised in the petition “present[s] a conflict on a federal question with significant implications:

whether Medicaid recipients have a private right of action to challenge a State’s determination of ‘qualified’

Medicaid providers under 42 U.S.C. § 1396a(a)(23) and

Rev. Stat. § 1979, 42 U.S.C. § 1983.” Gee, 139 S. Ct. at

408 (Thomas, J., dissenting from denial of certiorari).

That conflict alone justifies this Court’s review. Ibid.

(“Because of this Court’s inaction, patients in different

States—even patients with the same providers—have

different rights to challenge their State’s provider decisions.”). The Court’s attention is especially critical

because private enforcement of the provider-choice

5

plan requirement undermines the contractual nature

of Medicaid and the related political accountability

Congress implemented.

The Medicaid Act is not a civil-rights statute imposing duties and restraints on States concerning

healthcare financing. Rather, it creates a program that

States may use to finance their own healthcare benefits for the poor and disabled. Nat’l Fed’n of Indep. Bus.

v. Sebelius, 567 U.S. 519, 541–42 (2012). States have

substantial discretion to design and administer their

Medicaid programs within broad federal guidelines.

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 439 (2004)

(there are “various ways that a State could implement

the Medicaid Act”); Alexander v. Choate, 469 U.S. 287,

303 (1985) (“The [Medicaid] Act gives the States substantial discretion to choose the proper mix of amount,

scope, and duration limitations on coverage”). States

may, for example, establish eligibility standards, provide coverage for other medical services, define the

amount and scope of services, and determine the

payment methodology and payment rate for services. See Barbara S. Klees, Christian J. Wolfe & Catherine A. Curtis, Ctrs. for Medicare & Medicaid Servs.,

Brief Summaries of Medicare & Medicaid: Title XVIII

& Title XIX of the Social Securities Act 23–30 (Nov. 20,

2017), available at https://bit.ly/3cgDvAh.

If a State has established a healthcare-benefit

program satisfactory to the Secretary of Health and

Human Services, it may seek federal matching grants.

In particular, Section 1396a(a) establishes conditions

under which States may qualify to receive federal

6

funding and begins as follows: “A State plan for medical assistance must. . . .” 42 U.S.C 1396a(a). Each subsection then delineates requirements and prohibitions

(with varying degrees of specificity) for a State’s plan

to qualify for federal matching grants. In context, these

provisions say nothing about individual rights, even if

some may incidentally yield individually recognizable

benefits.

Critically, however, States are in no way obligated

to implement a Medicaid program in accordance with

the conditions required for federal funding. States participating in Medicaid remain free to amend their programs, even if that means the Secretary will deny

federal funding as a consequence. See 42 U.S.C. 1396c.

Section 1396c recognizes a State’s continuing prerogative to alter its Medicaid program even after accepting

federal funds. Any State that administers a non-compliant program runs the risk that the Secretary will

turn off the funding spigot, but this remains a lawful

option for the State under the statute. “[T]he sole remedy Congress provided for a State’s failure to comply

with Medicaid’s requirements—for the State’s ‘breach’

of the Spending Clause contract—is the withholding of

Medicaid funds by the Secretary.” Armstrong, 575 U.S.

at 328 (emphasis added).

Furthermore, because the States’ Medicaid participation is “in the nature of a contract,” Congress may

create an enforceable private right only if the States

“knowingly accept[ ]” such rights as a condition on

funding, which is possible only if “Congress speak[s]

with a clear voice.” Pennhurst State Sch. & Hosp. v.

7

Halderman, 451 U.S. 1, 17 (1981). Subjecting States to

private causes of action when Congress did not unambiguously create a private right breaches the Medicaid

agreement just as surely as the federal government’s

withholding of funds from States that meet all plan requirements.

Affording a private right of action without clear

congressional direction not only defeats the States’

contractual expectations, it also erodes the political accountability the Medicaid Act embraces, particularly

with respect to provider qualifications. The Act says

that “any individual eligible for medical assistance . . .

may obtain such assistance from any institution . . .

qualified to perform the service or services required.”

42 U.S.C. 1396a(a)(23) (emphasis added). The meaning

of “qualified” provider, however, comes not merely from

the Act itself, but from state-federal contracts that implement it. Under federal regulations, “a State may

exclude an individual or entity from participation in

the Medicaid program for any reason for which the

Secretary could exclude that individual or entity from

participation” or “for any reason . . . authorized by

state law.” 42 C.F.R. 1002.3 (implementing 42 U.S.C.

1396a(p)(1)). In other words, politically accountable

state officials may adopt as law whatever qualifications they like, and the presidentially accountable Secretary decides whether the federal government will

reimburse the State’s Medicaid expenditures in light

of those qualifications.

In this case, however, the respondents’ lawsuit

disrupted that combination of state-federal political

8

accountability. South Carolina deemed abortion clinics

unqualified to provide Medicaid services. If the respondent clinic disputes whether that order (and its

subsequent termination as a provider) violates state

law, it may avail itself of state administrative and judicial remedies. S.C. Code Regs. 126-404. But the

Secretary, not a federal court, is responsible for determining in the first instance whether South Carolina’s

actions are consonant with eligibility for federal Medicaid reimbursement. See 42 U.S.C. 1396a(b).

Indeed, by its terms, the Medicaid Act imposes legal obligations only on the Secretary, who must ensure

that States substantially comply with plan requirements. 42 U.S.C. 1396c. If the Secretary finds that a

State’s plan “has been so changed that it no longer

complies” with the requirements of 42 U.S.C. 1396a or

that “in the administration of the plan there is a failure to comply substantially with any such provision,”

the Secretary “shall notify [the] State . . . that further

payments will not be made” or that “payments will be

limited to . . . parts of the State plan not affected by

[the] failure” to comply. Ibid.

That sort of executive judgment, made by an official appointed and removable by the President, and

subject to judicial review at the State’s request, is critical to the proper functioning of Medicaid. It permits

appropriate assessment not only of a State plan’s conformity with federal law, but also of the degree to which

any departure from federal law is significant. The Secretary may adjust the funding spigot (gradually if so

desired), but in all events the law permits a State to do

9

as it sees fit. In contrast, a federal court in a lawsuit

like this may only issue an injunction that upsets the

federal-state tradeoffs put in place by politically accountable officials.

Here, the Fourth Circuit, by decreeing which

healthcare providers will receive public funding, interfered with vital medical, ethical, and fiscal policies

rightly belonging to States. See Gee, 139 S. Ct. at 409

(Thomas, J., dissenting from denial of certiorari)

(choices of approved providers seek to promote “the

public interest”). It also interfered with States’ ability

“to manage Medicaid” because the court of appeals’ decision “give[s] Medicaid providers an end run around”

the process for judicial review prescribed “in the state’s

statutory scheme.” Ibid. (cleaned up). State tribunals

are better “suited to handle these cases based on their

more intimate familiarity with the agencies, the regulation of the practice of medicine, and state administrative law.” Planned Parenthood of Greater Texas

Family Planning & Preventative Health Servs., Inc v.

Smith, 913 F.3d 551, 571 (5th Cir. 2019) (Jones, J., concurring).

As the Eighth Circuit recognized, Medicaid enforcement via Section 1983 “result[s] in a curious system for

review of a State’s determination that a Medicaid provider is not ‘qualified.’ ” Does v. Gillespie, 867 F.3d 1034,

1041 (8th Cir. 2017). It sets up two tracks for judicial

assessment of qualifications. On the one hand, the

Medicaid Act requires that States provide a terminated provider the “opportunity for administrative

appeal and judicial review in the state courts.” Ibid.

10

And on the other hand, “individual patients” will “separately . . . litigate or relitigate the qualifications of

the provider in federal court.” Ibid. The result of this

two-track system will be “parallel litigation and inconsistent results,” id. at 1041–42, or, as here, federal judicial interference with a State’s Medicaid plan and its

procedures for determining whether a provider is qualified, see Pet. App. 11a.

In sum, this Court should grant certiorari because

this case is a great vehicle to reaffirm the States’ legitimate authority over their Medicaid programs, preserve the balance of public accountability that the

Medicaid Act envisions, and resolve the circuit conflict

over the provider-choice plan requirement.

II.

Uncertainty surrounds the general framework for determining when Spending Clause

statutes create private rights enforceable

under Section 1983.

The Court’s opinions addressing when federal

statutes create private rights enforceable under Section 1983 are not “models of clarity.” Gonzaga, 536 U.S.

at 278. As a result, confusion surrounding private

rights of action to enforce Spending Clause legislation

is hardly limited to the provider-choice plan requirement or even the Medicaid Act (though both generate

plenty of cases). Accordingly, this case presents the

Court with a critical opportunity to address an issue

relevant to federal legislation covering an array of topics and interests.

11

A. The evolution of private-enforceability

doctrine has left critical questions unanswered.

One of this Court’s early decisions on the private

enforceability of Spending Clause legislation explained that for “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.” Pennhurst, 451 U.S. at 28 (emphasis

added). Only two of this Court’s subsequent decisions—

Wright v. City of Roanoke Redevelopment & Housing

Authority, 479 U.S. 418 (1987), and Wilder—have

held that a Spending Clause provision created rights

enforceable under Section 1983. Construing those

cases, Blessing said three factors guide the analysis:

(1) whether Congress “intended” the “provision in

question [to] benefit the plaintiff,” (2) whether the asserted right is “vague and amorphous,” and (3) whether

the statute “impose[s] a binding obligation on the

States.” 520 U.S. at 340–41.

Then, in 2002, this Court decided Gonzaga, which

lower courts have called a “game-changer.” Jones v.

District of Columbia, 996 A.2d 834, 845 (D.C. 2010).

Gonzaga held that Spending Clause legislation must

“unambiguously confer[ ]” private rights on the plaintiff; it is not enough that the plaintiff “falls within the

general zone of interest that the statute is intended

to protect.” 536 U.S. at 283. Throughout its opinion, the

Gonzaga Court “consider[ed] [Blessing’s] multifactor

12

test problematic, to say the least.” Pet. App. 43a (Richardson, J., concurring); see Gonzaga, 536 U.S. at 286

(criticizing the “multifactor balancing test” as enabling

courts “to pick and choose which federal requirements

may be enforced by § 1983 and which may not”).

Gonzaga thus rejected the analysis in cases like

Wright and Wilder. The dissent recognized this right

away. Gonzaga, 536 U.S. at 300 n.8 (Stevens, J., dissenting) (explaining that the majority’s “framework

sub silentio overrules cases such as Wright and Wilder”

because the statutes in those cases “did not ‘clearly and

unambiguously’ intend enforceability under § 1983”)

(cleaned up). And a majority of the Court made that

explicit in Armstrong, observing that Gonzaga “plainly

repudiate[s] the ready implication of a § 1983 action

that Wilder exemplified.” 575 U.S. at 331 n.*.

The evolution of the Court’s jurisprudence has left

unsettled many important aspects of the framework

for determining when Congress creates private rights

enforceable under Section 1983. At least four critical

questions remain unanswered.

1. Do third-party beneficiaries of a contract between governmental entities

have a right to enforce the agreement?

Many Members of the Court have raised this crucial threshold question, but a majority has yet to

squarely address it. E.g., Armstrong, 575 U.S. at 332

(plurality op.) (discussing whether “intended beneficiaries” of “the federal-state Medicaid agreement” “can

13

sue to enforce the [contractual] obligations”); Blessing,

520 U.S. at 349–50 (Scalia, J., concurring) (similar);

Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644,

683 (2003) (Thomas, J., concurring) (acknowledging

“serious questions as to whether third parties may sue

to enforce Spending Clause legislation”).

“Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the

contract, and could not sue upon it. . . . This appears to

have been the law at the time § 1983 was enacted.”

Blessing, 520 U.S. at 349–50 (Scalia, J., concurring)

(citing 1 William W. Story, A Treatise on the Law of

Contracts 549–50 (4th ed. 1856)); see also National

Bank v. Grand Lodge, 98 U.S. 123, 124 (1878) (“No

doubt the general rule is that . . . privity must exist” to

sue for breach of contract). Even today, “modern jurisprudence permitting intended beneficiaries to sue does

not generally apply to contracts between a private

party and the government—much less to contracts

between two governments.” Armstrong, 575 U.S. at

332 (plurality op.) (citing 13 Richard A. Lord, Williston

on Contracts §§ 37:35–37:36, pp. 256–71 (4th ed.

2013)).

These contract principles cast serious doubt on

whether Section 1983 affords private causes of action

to third-party beneficiaries of Spending Clause legislation. Settling that threshold issue is one way to bring

much-needed consistency to this area of the law.

14

2. Do the Blessing factors still apply?

The Gonzaga Court criticized and did not apply

Blessing’s “multifactor balancing test.” 536 U.S. at 286.

Instead, it looked to “the text and structure of [the]

statute” to decide whether “Congress intend[ed] to create new individual rights” enforceable under Section

1983. Ibid.

Despite this, many lower courts continue to apply

the Blessing factors in various ways. Some say that

Gonzaga simply amended the first Blessing factor, requiring courts to ask whether a statute unambiguously

confers rights on (rather than merely benefits) the

plaintiffs. E.g., S.D. ex rel. Dickson v. Hood, 391 F.3d

581, 602 (5th Cir. 2004). Others “apply the three components of the Blessing test” and then, per Gonzaga,

“inquire into whether the statutes in question unambiguously confer a substantive right.” E.g., Grammer v.

John J. Kane Reg’l Centers—Glen Hazel, 570 F.3d 520,

527 (3d Cir. 2009).

No matter the form, the continued use of the Blessing factors is concerning. The “practical consequences

of . . . a multifactor test” include less “predictability”

and more “open-ended” analysis. Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,

547 (1995). Such standards give too much “discretion

[to] trial judges” and generally “produce[ ] disparate results.” Murphy v. Smith, 138 S. Ct. 784, 790 (2018).

Consistent jurisprudence will remain elusive while the

Blessing factors reign.

15

Tellingly, judges who find private rights enforceable under Section 1983 continue to apply the Blessing

factors, while those who do not follow Gonzaga’s focus

on statutory text and structure. This happens in Medicaid cases like this one. Compare Gillespie, 867 F.3d

at 1039–42 (following Gonzaga and finding no private

right), with id. at 1049–51 (Melloy, J., dissenting) (applying Blessing and finding a private right). The same

goes for foster-care-payment cases. Compare New York

State Citizens’ Coal. for Children v. Poole, 922 F.3d 69,

79 (2d Cir. 2019) (applying Blessing, saying “Blessing’s

three factor test remains good law,” and finding a private right), with id. at 94 (Livingston, J., dissenting)

(following Gonzaga, noting that Gonzaga “calls into

question the vitality of the Blessing test,” and finding

no private right). Resolving whether the Blessing factors still apply will go a long way toward bringing stability to the law.

3. What is the relevance of congressionally prescribed enforcement mechanisms?

The Gonzaga Court held that the statute’s prescribed enforcement mechanism confirmed Congress’s

intent not “to create individually enforceable private

rights” under Section 1983. 536 U.S. at 289–90. And in

Armstrong, the plurality reiterated that “the explicitly

conferred means of enforcing compliance . . . by the

[federal government’s] withholding funding suggests

that other means of enforcement are precluded.” 575

U.S. at 331–32. Those decisions conflict with Wilder,

16

which considered the statute’s enforcement mechanism only after finding an enforceable private right

and only to assess whether the “remedial scheme” was

“sufficient to displace the remedy provided in § 1983.”

496 U.S. at 520–23.

Downplaying Gonzaga and Armstrong, some lower

courts, including the Fourth Circuit here, continue to

apply Wilder’s approach. Unlike what this Court did

in Gonzaga and Armstrong, the Fourth Circuit said

nothing about the Medicaid Act’s prescribed means of

enforcement when asking whether the Act “unambiguously gives Medicaid-eligible patients an individual

right.” Pet. App. 16a–18a (citation omitted). Rather,

the court considered the prescribed remedies only

when analyzing (under Wilder) whether Congress’s

“enforcement scheme” was “sufficiently ‘comprehensive’ ” to “rebut[ ]” its finding of a private right enforceable under Section 1983. Pet. App. 19a–23a; accord

Planned Parenthood of Kansas v. Andersen, 882 F.3d

1205, 1224–29 (10th Cir. 2018) (same). In contrast, the

Eighth Circuit reasoned that the Medicaid Act’s explicit enforcement mechanism shows that “Congress

did not intend to create an enforceable right for individual patients under § 1983.” Gillespie, 867 F.3d at

1041. As these cases illustrate, the lower courts need

direction from this Court on how Congress’s prescribed enforcement mechanisms factor into this

analysis.

17

4. What is the relevance of a statutory

provision’s placement within a directive to federal officials?

Statutory “[t]ext may not be divorced from context.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 356 (2013). That is why the Armstrong plurality

analyzed 42 U.S.C. 1396a(a)(30)—a subsection parallel

to the provider-choice plan requirement at issue

here—as “a directive to the federal agency charged

with approving state Medicaid plans, not as a conferral

of the right to sue upon the beneficiaries of the State’s

decision to participate in Medicaid.” 575 U.S. at 331.

Such directives “ ‘reveal[ ] no congressional intent to

create a private right of action.’ ” Ibid. (quoting Alexander v. Sandoval, 532 U.S. 275, 289 (2001)); see also

Gonzaga, 536 U.S. at 287 (statute directing federal official to withhold funds from regulated entities is “two

steps removed from the interests of individual[s]” and

“does not confer the sort of ‘individual entitlement’

that is enforceable under § 1983”).

Spurning Armstrong, many circuits continue to

ignore this broader statutory context. And quite a

few (including the court below) have done so because

of 42 U.S.C. 1320a-2, which says that a “provision is

not to be deemed unenforceable because of its inclusion in a section . . . requiring a State plan or specifying the required contents of a State plan.” E.g., Pet.

App. 24a–25a (citing Section 1320a-2 to reject the

State’s argument that the provider-choice provision is

a “ ‘plan requirement,’ rather than an individual

right”); Planned Parenthood of Ind., Inc. v. Comm’r of

18

Ind. State Dep’t Health, 699 F.3d 962, 976 n.9 (7th Cir.

2012) (similar).

But as the Eighth Circuit has explained, those

courts ignore that Section 1320a-2—hardly a “model of

clarity” itself—simply overturned a narrow part of the

Court’s analysis in Suter v. Artist M., 503 U.S. 347

(1992). Gillespie, 867 F.3d at 1044. That provision did

not otherwise displace this Court’s case law or “limit or

expand the grounds for determining the availability of

private actions to enforce State plan requirements.” Id.

at 1044–45 (quoting 42 U.S.C. 1320a-2). Notably, the

Armstrong plurality did not consider Section 1320a-2

an impediment to its analysis. Id. at 1045–46 & n.7.

But the inconsistency in the circuits confirms that they

need more guidance on this issue.

*****

These four unanswered questions show that uncertainty and conflict permeate the framework for deciding whether Spending Clause legislation creates a

private right enforceable under Section 1983. Because

disagreement and confusion arise at every turn, this

Court should grant review.

19

B. Cases finding private rights enforceable

under Section 1983 spawn widespread

lawsuits, burden state resources, and intrude on state sovereignty.

Expanding private cause of actions too far, as some

lower courts have done, exposes States to far-reaching

lawsuits and infringes state sovereignty.

1. The breadth of lawsuits that lower courts have

licensed is staggering. Starting with just the subsections of 42 U.S.C. 1396a(a) in the Medicaid Act, lower

courts have found a vast array of private rights enforceable under Section 1983:

•

As this case shows, individuals may challenge

States’ decisions to terminate or decline to

add healthcare providers. Pet. 20–28 (discussing split of authority interpreting 42 U.S.C.

1396a(a)(23)); accord Gee, 139 S. Ct. at 409

(Thomas, J., dissenting from denial of certiorari) (mentioning challenges to “the failure to

list particular providers”).

•

Healthcare providers may challenge States’

notice-and-comment process for setting payment rates. E.g., BT Bourbonnais Care, LLC v.

Norwood, 866 F.3d 815, 824 (7th Cir. 2017)

(applying 42 U.S.C. 1396a(a)(13)(A)).

•

Individuals may object to not receiving

“medical assistance . . . with reasonable

promptness.” E.g., Doe v. Kidd, 501 F.3d 348,

355–57 (4th Cir. 2007) (applying 42 U.S.C.

1396a(a)(8)); Bryson v. Shumway, 308 F.3d 79,

88–89 (1st Cir. 2002) (same).

20

•

And individuals may enforce the federal

statute requiring a State’s plan to “mak[e]

medical assistance available” to eligible “individuals.” E.g., Bontrager v. Ind. Family &

Soc. Servs. Admin., 697 F.3d 604, 606–07 (7th

Cir. 2012) (applying 42 U.S.C. 1396a(a)(10));

Sabree ex rel. Sabree v. Richman, 367 F.3d 180,

189–92 (3d Cir. 2004) (same).

Looking beyond 42 U.S.C. 1396a(a), courts have

held that many other federal Medicaid provisions

grant private rights enforceable under Section 1983.

Here are just a few:

•

Individuals eligible for home- and communitybased services may sue under so-called “free

choice” provisions. E.g., Ball v. Rodgers, 492

F.3d 1094, 1117 (9th Cir. 2007) (applying 42

U.S.C. 1396n(c)(2)(C) & (d)(2)(C)).

•

Qualified healthcare centers may challenge

States’ reimbursement rates. E.g., Legacy

Cmty. Health Servs., Inc. v. Smith, 881 F.3d

358, 371–73 & n.13 (5th Cir. 2018) (applying

42 U.S.C. 1396a(bb) and collecting cases).

•

Nursing-home residents may sue States under the Federal Nursing Home Reform

Amendments (FNHRA) for failing to ensure

their “highest practicable physical, mental

and psychosocial well-being.” E.g., Grammer,

570 F.3d at 524–25, 532 (applying 42 U.S.C.

1396r(b)(2) and related provisions); see also

Pet. 32–33 (noting the split of authority).

21

•

Nursing-home residents may file federal lawsuits to force States to provide “specialized

services.” E.g., Rolland v. Romney, 318 F.3d 42,

51–56 (1st Cir. 2003) (applying various provisions in 42 U.S.C. 1396r).

•

Trustees of pooled trust accounts may involve

federal courts in Medicaid reimbursement

disputes between States and trust beneficiaries. E.g., Ctr. for Special Needs Tr. Admin., Inc.

v. Olson, 676 F.3d 688, 698–700 (8th Cir. 2012)

(applying 42 U.S.C. 1396p(d)(4)(C)).

•

And individuals may enforce the federal statute requiring that a State’s plan temporarily

continue Medicaid benefits for recipients who

no longer meet income eligibility requirements. E.g., Rabin v. Wilson-Coker, 362 F.3d

190, 201–02 (2d Cir. 2004) (applying 42 U.S.C.

1396r-6(a)).

This private-enforcement issue also transcends

Medicaid. For example, courts have held that several

federal statutes addressing foster-care and adoption

funding create private rights enforceable under Section 1983:

•

Foster parents may contest the amount of foster-care-maintenance payments that States

pay. Poole, 922 F.3d at 73–74, 76 (noting circuit split and applying parts of 42 U.S.C. 671,

672, & 675).

•

Foster children may challenge States’ caseplan procedures. Henry A. v. Willden, 678 F.3d

991, 1006 (9th Cir. 2012) (noting split and applying 42 U.S.C. 671(a)(16) & 675(1)).

22

•

And adoptive parents may challenge States’

budgetary decisions reducing adoption-assistance payments. ASW v. Oregon, 424 F.3d 970,

975–78 (9th Cir. 2005) (applying 42 U.S.C.

673(a)(3)).

As these illustrative (but by no means comprehensive) lists show, existing case law on the enforceability

of Spending Clause legislation exposes States to widespread litigation across many areas of the law, including core “area[s] of state concern” like “[f ]amily

relations.” Moore v. Sims, 442 U.S. 415, 435 (1979).

2. These private lawsuits impose substantial

burdens on States. The sheer breadth of federal provisions that lower courts have found to create enforceable rights, the more than 70 million current Medicaid

recipients, and the nation’s recent rise in foster children all ensure that these lawsuits will not be isolated

or few. See Gee Cert. Pet. 19 (Louisiana faced more

than 350 federal claims in less than 2 years contesting

the disqualification of a Medicaid provider). What is

more, the availability of attorney fees under 42 U.S.C.

1988 encourages these suits, prolongs the proceedings

(as fees are litigated), and multiplies the financial risk

to States. See Poole, 922 F.3d at 97 n.13 (Livingston, J.,

dissenting) (noting the benefits to the attorneys who

bring these claims).

The high cost of all this federal litigation is not

easily quantified. But above all, the deluge of lawsuits

diverts scarce state resources away from administering the Medicaid and foster-care programs that serve

needy families and children, risking harm to those

23

vulnerable citizens. See Smith, 913 F.3d at 571 (Jones,

J., concurring). And the burden on States is only compounded by the “inconsistent results” that these suits

threaten to produce. Poole, 922 F.3d at 97 (Livingston,

J., dissenting); cf. Gonzaga, 536 U.S. at 290 (raising

consistency concerns from allowing “private suits to be

brought before thousands of federal- and state-court

judges”).

*****

When courts fail to respect Spending Clause limits, private enforcement intrudes upon “sensitive areas

of traditional state concern.” Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,

654–55 (1999) (Kennedy, J., dissenting); see Gonzaga,

536 U.S. at 286 n.5 (no indication that Congress intended to interfere with an area traditionally belonging to States). Exposing States to lawsuits like this one

violates the bargain that they struck when accepting

federal funding. To preserve the “dignity” and “residual

sovereignty of the States,” Bond v. United States, 564

U.S. 211, 221 (2011), the Court should grant review

and clarify the framework for determining when

Spending Clause legislation creates private rights enforceable under Section 1983.

---------------------------------♦---------------------------------

24

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted,

CURTIS T. HILL, JR.

Attorney General

of Indiana

THOMAS M. FISHER

Solicitor General

JULIA C. PAYNE

Deputy Attorney General

OFFICE OF THE INDIANA

ATTORNEY GENERAL

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

DOUGLAS J. PETERSON

Attorney General of

Nebraska

DAVID T. BYDALEK

Deputy Attorney General

JAMES A. CAMPBELL

Solicitor General

Counsel of Record

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

Counsel for Amici Curiae

[Additional Counsel Listed On The Following Page]

APRIL 2020

25

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

TIM FOX

Attorney General

State of Montana

KEVIN G. CLARKSON

Attorney General

State of Alaska

DAVE YOST

Attorney General

State of Ohio

MARK BRNOVICH

Attorney General

State of Arizona

MIKE HUNTER

Attorney General

State of Oklahoma

CHRIS CARR

Attorney General

State of Georgia

JASON RAVNSBORG

Attorney General

State of South Dakota

DEREK SCHMIDT

Attorney General

State of Kansas

HERBERT H. SLATERY III

Attorney General

State of Tennessee

DANIEL CAMERON

Attorney General

State of Kentucky

KEN PAXTON

Attorney General

State of Texas

JEFF LANDRY

Attorney General

State of Louisiana

SEAN D. REYES

Attorney General

State of Utah

LYNN FITCH

Attorney General

State of Mississippi

PATRICK MORRISEY

Attorney General

State of West Virginia

ERIC S. SCHMITT

Attorney General

State of Missouri