Petition for Writ of Certiorari — Leonard Thurman, Petitioner v. Medical Transportation Management, Incorporated

Supreme Court briefJun 12, 2021

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FILED

LEONARD THURMAN,

OFFICE OF THE CLERK

Petitioner,

MEDICAL TRANSPORTATION MANAGEMENT, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Leonard Thurman

Petitioner Pro Se

120 Rucker Lane

Bentonia, MS 39040

662-673-2795

QUESTION PRESENTED

Petitioner Leonard Thurman filed suit against Respondent Medical Transportation

Management, Inc. for failure to provide transportation, which is guaranteed by

regulation, under 42 C.F.R. § 431.53 Assurance of Transportation.

In its opinion below, the U.S. Court of Appeals for the Fifth Circuit and District

Court stated that definitive guidance is lacking from the United States Supreme

Court as to whether an administrative regulation may establish a federal right

enforceable under 42 U.S.C. § 1983. The District Court order dismissing the case

stated that “federal courts are divided as to whether a federal regulation can create

a federal right.” (App. 14a) The Fifth Circuit described the lack of clarity on this issue,

stating C‘[I]t is not clear that regulations can be considered ‘laws’ for purposes of

creating a right actionable under section 1983.”) Citing Wright v. Roanoke Redev. & Hous.

Auth., 479 U.S. 418, 437-39 (1987) (O'Connor, J., dissenting). The Fifth Circuit also

acknowledged a circuit split between the Sixth Circuit and several sister circuits. (App.6a,

7a).

The Question Presented Is:

Whether an administrative regulation may establish a federal right enforceable

under 42 U.S.C. § 1983.

LIST OF PROCEEDINGS BELOW

United States Court of Appeals for the Fifth Circuit

No. 19-60596

Leonard Thurman v. Medical Transportation Management, Incorporated

Date of Final Order: January 22, 2021

U.S. District Court Southern District of Mississippi (Northern (Jackson))

No. 3:18-cv-00282

Leonard Thurman v. Medical Transportation Management, Incorporated

Date of Final Judgment: June 18, 2019

TABLE OF CONTENTS

.Page

QUESTION PRESENTED........................................................................................................

LIST OF PROCEEDINGS BELOW....... ..................................................................................

OPINIONS BELOW..................................................................................................... .........

JURISDICTION.......................................................................................................................

STATEMENT OF THE CASE..............................................................................................

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

Overview............................................................................................................ .......

II. Standardof Review........................................................................................ ........

REASONS FOR GRANTING THE PETITION............................................................... .

Federal Regulations with the Force and Effect of Law Confer Rights

Enforceable Under Section 1983..................................................... .............

A. Under the Plain Language of Section 1983, Regulations Bearing the

Force of Law May Create Federal Rights...................................................

B. The Regulation at Issue, 42 C.F.R. § 431.53, has the Force and Effect

of Law Under Brown and Is Also Entitled to Chevron Deference......... 12

The Transportation Regulation has the Full Force and Effect of

Law Under Brown..................................................................................... 12

The Transportation Regulation Is Entitled to Chevron Deference.. 15

II. In the Alternative, a Statute Read in Tandem With a Regulation May

Confer a Federally Enforceable Right If They Satisfy the Factors Set

Forth in Wilder and Gonzaga........................................................................... 16

A. Supreme Court Authorities Expressly Contemplate that a Statute

and Regulation May be Read Together to Establish a Federal Right.... 16

B. Read Together, Relevan t Provisions of the Medicaid Act and 42 C.F.R.

§ 431.53 Satisfy the Wilder/Blessing and Gonzaga Standards for

Creation of a Federal Right

CONCLUSION

TABLE OF AUTHORITIES

Page.

CASES

Af-Cap, Inc. v. Republic of Congo,

462 F.3d 417 (5th Cir. 2006)..................................................

Albright v. Oliver,

510 U.S. 266(1994)................................................................

Alexander v. Sandoval,

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

passim

Armstrong v. Exceptional Child Center, Inc.,

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

Batterton v. Francis,

432 U.S. 416(1977)........................ ,.....................................

8, 9,13

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................... ........................

Bivens v. Six Unknown Agents ofFederal Bureau ofNarcotics,

403 U.S. 388 (1971)...............................................................

Blessing v. Freestone,

520 U.S. 329 (1997)...............................................................

passim

Boatman v. Hammons,

164 F.3d 286 (6th Cir. 1998)..................................................

3,9,14

Bryson v. Shumway,

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

Causey v. Sewell Cadillac—Chevrolet, Inc.,

394 F.3d 285 (5th Cir. 2004)..................................................

Central Va. Community College v. Katz,

546 U.S. 356 (2006)...............................................................

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837(1984)........................ :.....................................

passim

Chrysler Corp. v. Brown,

441 U.S. 281 (1979)...............................................................

passim

Cuvillier v. Taylor,

503 F.3d 397 (5th Cir. 2007).................................................

3, 6, 27

Doe v. Chiles,

136 F.3d 709 (11th Cir. 1998)................................................

Does v. Gillespie,

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

Douglas v. Indep. Living Ctr. ofSouthern Ca., Inc.,

565 U.S. 606 (2012)...............................................................

TABLE OF AUTHORITIES—Continued

Page

'Gulden State Transit Corp. v. Los Angeles,

493 U.S. 103 (1989)............. ...............................

Gonzaga Univ. v. Doe,

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

passim

Guardians Ass ’n v. Civil Service Com ’n of

City ofNew York, 463 U.S. 582 (198*3)................

7, 8,19

Harris v. James,

127 F.3d 993 (11th Cir. 1997)..............................

3, 11,34,35

Hose in v. Gonzales,

452 F.3d 401 (5th Cir. 2006)................................

INS v. Chadha,

462 U.S. 919(1983)................................ ............

Johnson v. City ofDetroit,

446 F.3d 614 (6th Cir. 2006)................................

Maine v. Thiboutot,

448 U.S. 1 (1980).................................................

7, 8, 9,19

Middlesex County Sewerage Authority v. National Sea

Clammers Assn., 453 U.S. 1 (1981).....................

Midwest Foster Care and Adoption Ass ’n v. Kincade,

712 F.3d 1190 (8th Cir. 2013)..............................

Pennhurst State School and Hospital v. Halderman,

451 U.S. 1 (1981)............................ '....................

Rolland v. Romney,

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

Romano v. Greenstein,

721 F.3d 373 (5th Cir. 2013)................................

31,32, 34

Rosado v. Wyman,

397 U.S. 397(1970)..............................................

Sabree ex. rel Sabree v. Richman,

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

31,32

Samuels v. District of Columbia,

770 F.2d 184 (D.C. Cir. 1985)..............................

Save Our Valley v. Sound Transit,

335 F.3d 932 (9th Cir. 2003)................................

Shakhnes v. Berlin,

689 F.3d 244 (2d Cir. 2012).................................

28, 29, 33

TABLE OF AUTHORITIES—Continued

Page

■SmithrvrMiller,

“

665 F.2d 172 (7th Cir. 1981)..................................................

Smith v. Powell,

379 F. Supp. 139 (W.D. Tex. 1974)......................................

Suter v. Artist M.,

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

22, 25

Touche Ross & Co. v. Redington,442 U.S. 560 (1979)................. .............................................

24, 25

Wilder v. Virginia Hospital Association,

496 U.S. 498 (1990)...............................................................

passim

Wright v. City of Roanoke Redevelopment and Housing Authority,

479 U.S. 418 (1987)...............................................................

passim

STATUTES

18U.S.C. § 1905...................................

20 U.S.C. § 1232g(b)(l).......................

28 U.S.C. § 1257(1)..............................

28 U.S.C. § 1331...................................

42 U.S.C. § 1302...................................

42 U.S.C. § 1302(a).... ..........................

13, 15

42 U.S.C. § 1396a.................................

passim

42 U.S.C. §§ 1396 et seq............ .'..........

passim

Brooke Amendment....... .......................

. 17, 18

Civil Rights Act of 1871.......................

Title VI of the Civil Rights Act of 1964

23, 24, 32

JUDICIAL RULES

5th Cir. R. 28.2.1................

Fed. R. App. P. 32(a)(5)....

Fed. R. App. P. 32(a)(6)....

Fed. R. App. P. 32(a)(7)(b)

Fed. R. App. P. 4(a)(5)(C)..

Fed. R. Civ. P. 12(b)(6).....

6, 40

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

42 C.F.R. §431.53

passim

OTHER AUTHORITIES

Bradford C. Mank,

Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?:

Why Chevron Deference Survives Sandoval and Gonzaga,

32 Fla. St. U. L. Rev. 843 (2005).............................................................................

Vll

7,15

OPINIONS BELOW

The published Opinion of the United States Court of Appeals for the Fifth Circuit,

dated January 22, 2021, is included below at App.la. The Order of the U.S. District

Court Southern District of Mississippi (Northern (Jackson)), dated June 18, 2019, is

included below at App.lOa.

JURISDICTION

In the district court, this case was originated as a civil action “arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Specifically,

Plaintiff Leonard Thurman asserts a violation of rights owed him under the Medicaid

Act, codified at 42 U.S.C. §§ 1396 et seq., and seeks vindication of those rights via 42

U.S.C. § 1983. ROA.12,1 157. The district court therefore had original jurisdiction

over this action under 28 U.S.C. § 1331.

This petition was initially filed, within 150 days of the final order of the United

States Court of Appeals for the Fifth Circuit. This Court has jurisdiction under 28

U.S.C. § 1257(l). The clerk provided petitioner an additional 60 days to correct and

resubmit a petition, and this petition has been submitted within that timeframe.

1 Fifth Circuit Record on Appeal will be abbreviated as ROA.

STATEMENT OF THE CASE

Plaintiff Leonard Thurman is a Medicaid recipient residing in the state of

Mississippi. ROA.157, 175. Defendant Medical Transportation Management, Inc.

(“MTM”) provides non-emergency medical transportation to Medicaid recipients.

ROA.175. Thurman alleges he requested pickup for a doctor’s appointment to treat

complications stemming from a tooth extraction performed two weeks earlier.

ROA. 14-15. But MTM never showed up to take Thurman to the appointment.

ROA.14. Subsequently, Thurman filed an internal grievance with MTM. ROA.24.

MTM responded that the trip in question was never confirmed because he did “not

provide all trip information” during the scheduling call, placed the MTM representative

on hold, and did not come back to the line. ROA.24.

Proceeding pro se, Thurman filed this action on May 3, 2018. ROA.9. He initially

asserted claims pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Americans with

Disabilities Act (“ADA”). ROA. 12, 27. MTM promptly moved to dismiss all claims.

ROA.47-58. In response, Thurman conceded his ADA and Bivens claims. ROA. 156159. The parties’ briefs on the motion to dismiss focused on a single issue—whether

MTM deprived Thurman of a cognizable federal right. ROA.47-58, 156-59, 162-66.

MTM did not dispute Thurman’s assertion that MTM is a “state entity” jointly funded

by state and federal governments. ROA.47-58, 162-66, 177. The district court

therefore assumed MTM was acting under color of state law for_the_purposes_of

deciding the motion to dismiss. ROA.177.

The court ultimately granted MTM’s motion, and entered a final judgment

dismissing Thurman’s complaint. ROA.175-181. The court reasoned that 42 C.F.R.

§ 431.53, which ensures the availability of non-emergency transportation to Medicaid

beneficiaries, did not create a right enforceable under Section 1983. ROA.177 (citing

Cuvillier v. Taylor, 503 F.3d 397, 402-03 (5th Cir. 2007) and Blessing v. Freestone,

520 U.S. 329 (1997)). In support of its conclusion, the court cited the Eleventh

Circuit’s holding in Harris v. James, 127 F.3d 993 (llth Cir. 1997), which found that

the same regulation did not create a right enforceable under Section 1983. ROA.17880. However, the Court also noted a split of authority on this issue, citing a Sixth

Circuit case reaching precisely the- opposite conclusion with respect to the same

regulation. ROA.179 (citing Boatman v. Hammons, 164 F.3d 286, 289 (6th Cir. 1998)).

In its opinion, the Court did not undertake any separate analysis of the statutory

language giving rise to the regulation at issue.

Thurman appealed the dismissal to the U.S. Fifth Circuit Court of Appeals.

SUMMARY OF ARGUMENT

Overview

This appeal presents a now decades-old dispute concerning the role of federal

regulations in creating rights enforceable under 42 U.S.C. § 1983. The contours of the

dispute are defined by divided Courts of Appeal and by a series of Supreme Court

decisions that are, at times, seemingly inconsistent. But the real heart of this case is

not the novel legal question it presents. It is the disabled individual who seeks to

vindicate rights clearly created for his benefit, but that the district court held were

beyond his reach to vindicate. This Court should reverse that decision for two reasons.

First, the regulation at issue requires the State of Mississippi to create a Medicaid

plan that provides non-emergency transportation to Medicaid recipients. This

regulation was promulgated as a result of express statutory authority granted to the

Secretary of the Department of Health and Human Services by the Medicaid Act. The

regulation, as written, is a permissible construction of the statute’s mandate that the

State ensure reasonably prompt and beneficial care to its recipients. Under the

weight of Supreme Court authority, this regulation bears the force and effect of law,

and is entitled to the highest level of deference the Court affords. Because the plain

language of Section 1983 allows enforceable federal rights to be found in “the

Constitution and laws.” regulations with the force of law, like this one, necessarily

create such rights.

Second, the Supreme Court and Courts of Appeal have held that a regulation read

in conjunction with a statute may create a right enforceable under Section 1983. So

long as the statute itself broadly creates a right vested.-in-the-claimant-courts.inay.

utilize a regulation to give the statute sufficient specificity or to otherwise satisfy the

factors for the creation of a federal right. Here, this Court has already found that one

of the statutory provisions at issue broadly creates an enforceable right under Section

1983. This Court should read that statute, together with the subject regulation, to

find Mr. Thurman has a federal right to non-emergency medical transportation that

is enforceable under Section 1983.

II. Standard of Review

This Court reviews de novo a district court’s dismissal under Rule 12(b)(6).

Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006). “In doing so, [the Court]

acceptts] as true the well-pleaded factual allegations in the complaint.” Causey v.

Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). To survive a Rule

12(b)(6) motion to dismiss, a complaint “does not need detailed factual allegations,”

but must provide the plaintiffs grounds for entitlement to relief—including factual

allegations that when assumed to be true “raise a right to relief above the speculative

level.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Likewise, this Court reviews questions of law de novo. Af—Cap, Inc. v. Republic of

Congo, 462 F.3d 417, 425 (5th Cir. 2006). As this case presents a pure question of law

this Court should consider the legal arguments herein without deference to the

district’s court’s holding.

REASONS FOR GRANTING THE PETITION

Federal Regulations with the Force and Effect of Law Confer Rights

Enforceable Under Section 1983.

A. Under the Plain Language of Section 1983, Regulations Bearing the Force of

Law May Create Federal Rights.

Section 1983 imposes liability on any person who, acting under color of state law,

deprives another of “any rights, privileges, or immunities secured by the Constitution

and laws. ...” 42 U.S.C. § 1983. It does not, by itself, confer any rights upon litigants.

Albright v. Oliver, 510 U.S. 266, 271 (1994). Instead, Section 1983 provides a

procedural vehicle for vindicating existing federal rights. Id. Stated differently, it is

“a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights

independently ‘secured by the Constitution and laws of the United States.’” Gonzaga

Univ. v. Doe, 536 U.S. 273, 285 (2002) (quoting id. § 1983). Accordingly, the first step

of a claimant pursuing relief under Section 1983 is to identify the separately secured

federal rights he believes have been violated. Albright, 510 U.S. at 271. Courts have

been clear that a “[vliolation of federal law is insufficient for redress through section

1983; a plaintiff must assert [a] violation of a federal right.” Cuvillier v. Taylor, 503

F.3d 397, 402-03 (5th Cir. 2007) (emphasis in original).

On a fundamental level, the question before this Court is where “rights”

enforceable under Section 1983 may be found. It is undisputed that the federal

Constitution is one source of these rights. Indeed, Section 1983 was first introduced

in the Civil Rights Act of 1871, and was primarily aimed at guaranteeing

constitutional protections to African-Americans. Bradford C. Mank, Can Administrative

Regulations Interpret Rights Enforceable Under Section 1983?:

Why Chevron

Deference Survives Sandoval and Gonzaga, 32 Fla. St. U. L. Rev. 843, 850-51 (2005).

Ergo, the first iteration of Section 1983, by its plain language, protected only rights

secured by the Constitution. Id. But in 1874, Section 1983 was amended to provide

redress for deprivations of “rights . . . secured by the Constitution and laws.

(emphasis added). Id. In the years that followed, a number of different viewpoints

emerged concerning Congress’s intent in adding the “and laws” language. Id.

Specifically, there was substantial debate whether “and laws” referred to federal

statutes generally, or only to civil rights statutes. Id.

It was not until 1980, in Maine v. Thiboutot, 448 U.S. 1, 4 (1980), that the

Supreme Court definitively, answered this question. The Court’s analysis was

relatively simple, and focused on the plain language of the statute. It held the term

“laws” could not reasonably be read to refer to an undefined “subset of laws,” such as

civil rights statutes. Rather, Section 1983 “encompasses violations of federal

statutory as well as constitutional law.” Id. (citing Rosado v. Wyman, 397 U.S. 397

(1970)).

Unsurprisingly, however, the Court’s simple, plain language analysis did not end

the debate concerning the source of rights enforceable under Section 1983. Not long

after Thiboutot was decided, the Court issued a fractured opinion in Guardians Ass’n

v. Civil Service Com’n of City of New York, 463 U.S. 582 (1983). In dissent, Justice

Stevens—joined by Justices Brennan and Blackmun—cited Thiboutot for the

proposition that Section 1983 provides redress for “the deprivation of rights secured

by all federal laws, including statutes and regulations having the force of law.”

Guardians, 463 U.S. at 638 (emphasis added). While Stevens acknowledged that

Thiboutot involved only federal statutes, and not regulations, he insisted that “[i]ts

analysis of § 1983 ... applies equally to administrative regulations having the force of

law.” Id. at 638 n. 6. In support of this declaration, he relied on the Court’s earlier

decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), which outlined specific

standards for determining whether regulations bore the force and effect and of law.

Petitioner in Brown was a government contractor who sought to enjoin disclosure

of allegedly confidential information under the Freedom of Information Act.

Petitioner argued that disclosure was inconsistent with the Trade Secrets Act, 18

U.S.C. § 1905, which imposes criminal sanctions on government employees who

disclose certain information in a manner “not authorized by law.” Respondent,

however, relied on a federal regulation as “law” authorizing the subject disclosure.

The Court in Brown agreed broadly with the premise that “properly promulgated,

substantive agency regulations have the ‘force and effect of law.’” Id. at 296 (quoting

Batterton v. Francis, 432 U.S. 416, 425 n. 9 (1977)). “This doctrine,” the Court noted,

“is so well established that agency regulations implementing federal statutes have

been held to pre-empt state law under the Supremacy Clause.” Id. In order to have

the force of law, a regulation must have “certain substantive characteristics and be

the product of certain procedural requisites.” Id. Specifically, regulations have the

force and effect of law if: (l) they are substantive rules affecting individual rights and

obligations, and not merely interpretive rules or general policy statements; (2)

Congress has granted quasi-legislative power to the agency; and (3) the agency has

complied with applicable procedures such as the Administrative Procedure Act. Id. at

301-03. Although the Court ultimately held the particular regulation at issue in

Brown did not carry the force and effect of law, its rationale nevertheless establishes

that regulations that meet certain criteria may constitute “laws.” Browiis holding,

applied to Section 1983, suggests federal regulations with the force and effect of law

are, by definition, “laws” in which federal rights enforceable under Section 1983 may

be found.

Admittedly, the Supreme Court *has never explicitly adopted Stevens’ reasoning

or his conclusion that regulations with the force of law may provide “rights”

enforceable under Section 1983. Conversely, the Court also has never expressly

rejected Stevens’ premise. At least two Courts of Appeal, however, have held that

federal regulations have the full force and effect of law. Samuels v. District of

Columbia, 770 F.2d 184 (D.C. Cir. 1985); Boatman v. Hammons, 164 F.3d 286 (6th

Cir. 1998). In Samuels, the D.C. Circuit held that HUD’s regulations, enacted

pursuant to the United States Housing Act of 1937, had the full force and effect of

law, because they were “issued under a congressional directive to implement specific

statutory norms and they affect individual rights and obligations.” 770 F.2d at 199

(citing Brown, 441 U.S. at 301-03). The court further reasoned that “section 1983

provides a legal remedy for the violation of all valid federal laws, including at least

those federal regulations adopted pursuant to a clear congressional mandate that

have the full force and effect of law.” Id. Because the Court in Thiboutot refused to

limit Section 1983 to “some subset of federal laws,” regulations with the force of law

necessarily created the requisite rights. Id. at 199-200.

Although the Supreme Court has not specifically carried its “force of law”

jurisprudence into the Section 1983 context, it has expanded its view of the deference

owed to administrative regulations. In 1984, the Court decided Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron was a Clean

Air Act (“CAA”) case. Id. at 839-40. The CAA required states that had not achieved

certain air quality standards to establish a permit program regulating “new or

modified major stationary sources” of air pollution. Id. at 840. The statute did not

define “stationary sources.” Id. Instead, that term was defined solely by an EPA

regulation. Id. Plaintiffs were environmental groups who contended the regulation

defined “stationary sources” too narrowly. Id. at 841. The D.C. Circuit agreed with

Plaintiffs, and set aside the regulation. Id. The Supreme Court, however, reversed.

Id. at 866.

In its opinion, the Court explained that the regulation at issue was entitled

deference if certain conditions were met. Id. at 842-44. In reviewing an agency’s

construction of a statute, the Court must first discern whether Congress has directly

spoken to the precise question at issue. Id. at 842-43. If the intent of Congress is clear,

the Court and the agency must give effect to the unambiguously expressed intent of

Congress. Id. If, however, Congress has not directly addressed the precise question

at issue, the court “does not simply impose its own construction on the statute. . . . ”

Id. at 843. “Rather, if the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agencv’s answer is based on a

permissible construction of the statute.” Id. This framework, the Court noted, honors

the administrative agency’s Congressional authorization to administer a federal

program, including the formulation of policy and the making of rules to fill any gaps

left—explicitly or implicitly—by Congress. Id. at 843-44. The agency’s construction

need not be the only permissible one, and the court should not substitute its own

construction of the statute for a reasonable interpretation made by the agency. Id.

While Chevron obviously is not a Section 1983 case, it nevertheless creates

considerable tension with the notion that regulations are, as a rule, too attenuated

from Congressional intent to create an enforceable federal right. See Harris, 127 F.3d

at 1009 (“we think the regulation too far removed from Congressional intent to

constitute a ‘federal right’ enforceable under § 1983”). Chevron is built on the premise

that Congress’s intent is sometimes to entirely defer its legislative authority in a

particular area to an agency with greater knowledge and experience. 467 U.S. at 865.

It is counterintuitive to find that this type of broad Congressional delegation on one

hand entitles the regulations to greater force and deference {Chevron), and on the

other reduces their viability as a source of federal rights {Harris).

Ultimately, Brown and Chevron both stand for the proposition that the term

“laws” as used in Section 1983 should be read to include regulations with the force

and effect of law. To hold otherwise is to use the “gap” created by a broad

Congressional delegation of authority to an administrative agency as a shield in some

proceedings, but as a sword in others. This Court should therefore hold that

regulations with the force and effect of law confer federal rights enforceable under

Section 1983.

B. The Regulation at Issue, 42 C.F.R. § 431.53, has the Force and Effect of Law

Under Brown and Is Also Entitled to Chevron Deference.

If this Court accepts the general premise that agency regulations with the force

and effect of law may create rights enforceable under Section 1983, it should conclude

that the regulation at issue here, 42 C.F.R. § 431.53 (“the Transportation Regulation),

creates such rights.

The Transportation Regulation has the Full Force and Effect of Law

Under Brown.

Under the three-part test espoused in Brown, this Court should conclude that the

Transportation Regulation bears the force of law. It states: A State plan must (a) Specify that the Medicaid agency will ensure necessary transportation

for beneficiaries to and from providers; and

(b) Describe the methods that the agency will use to meet this requirement.

42 C.F.R. § 431.53.

This regulation satisfies the first prong of the Brown test because it constitutes a

substantive rule affecting individual rights and obligations, and not merely

interpretive rules or general policy statements. 441 U.S. at 301-02. The plain

language of the regulation unambiguously requires the state to provide Medicaid

beneficiaries with a specific and tangible right to transportation to and from their

medical providers. 42 C.F.R. § 431.53(a). This right inures to the individual

beneficiaries of the plan, and is not merely a statement of policy. Id. Rather, it

imposes a quantifiable obligation on the state to provide the transportation at issue.

See id.

Second, the Transportation Regulation’s enabling statute makes clear that the

Secretary has vast, quasi-legislative authority to affect the goals of the Act. Id. at

302-03; See INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (“To be sure, some

administrative

agency

action—rule

making,

for

example—may

resemble

lawmaking. . . . This Court has referred to agency activity as being ‘quasi-legislative’

in character. . . . ”). The statute expressly directs the Secretary to “make and publish

such rules and regulations, not inconsistent with this chapter, as may be necessary

to the efficient administration of the functions with which each is charged under this

chapter.” 42 U.S.C. § 1302(a). The Transportation Regulation, issued in compliance

with the Secretary’s statutory rulemaking power, is plainly “issued by an agency

pursuant to statutory authority [to] . . . implement the statute.” Batterton, 432 U.S.

at 425 n.9.

Further, and importantly, there is also an identifiable “nexus” between this

regulation and a particular delegation of legislative authority by Congress. Brown,

441 U.S. at 304. Several provisions of the Medicaid Act expressly direct that a state

plan must provide tangible assistance to qualified individuals. Moreover, the statute

expressly references non-emergency transportation as among the services it

contemplates the state providing. Specifically, Section 1396a(a) requires that a State

Plan must:

(8) provide that all individuals wishing to make application for medical

assistance under the plan shall have opportunity to do so, and that such

assistance shall be furnished with reasonable promptness to all eligible

individuals.

(19) provide such safeguards as may be necessary to assure that eligibility

for care and services under the plan will be determined, and such care and

services will be provided, in a manner consistent with the simplicity of

administration and the best interests of the recipients;

(70) ... provide for the establishment of a non-emergency medical

transportation brokerage program in order to more cost-effectively provide

transportation for individuals eligible for medical assistance under the State

plan who need access to medical care or services and have no other means

of transportation. ...

42 U.S.C. §§ 1396a(a)(8), (19), (70). Read together, these statutory provisions

establish a clear connection between the statute itself and the right the regulation

purports to provide. There can be no doubt Congress intended the Secretary to

regulate State Plans respecting transportation and appropriate medical care for

Medicaid recipients. A nexus therefore exists between the Congressional delegation

of authority and the right created by the regulation.

Finally, there is no indication that the Secretary has failed to comply with the

Administrative Procedure Act or any other procedural requirements in its promulgation

of the subject regulations. Brown, 441 U.S. at 301-03. As a number of courts have

held that regulations under the Medicaid Act have the force and effect of law, it

appears the Secretary has acted lawfully respecting the regulatory process. See, e.g.,

Smith v. Miller, 665 F.2d 172 (7th Cir. 1981).

At least one court in this Circuit has also held that the Medicaid Act regulations

issued by the Secretary pursuant 42 U.S.C. § 1302 “are to be given the full force and

effect as the statute themselves. ...” Smith v. Powell, 379 F. Supp. 139, 152 (W.D.

Tex. 1974) affd 504 F.2d 759 (5th Cir. 1974) (Table). The Sixth Circuit in Boatman

went a step further, expressly holding that 42 C.F.R. § 431.53 has “the force of law,

[and] must be characterized as law under § 1983.” 164 F.3d at 289. These authorities,

together with Brown, confirm that this regulation should be given the full force and

effect of law.

The Transportation Regulation Is Entitled to Chevron Deference.

The Transportation Regulation is also entitled to Chevron deference. This is

because “[t]he Medicaid Act commits to the federal agency the power to administer a

federal program.” Douglas v. Indep. Living Ctr. of Southern Ca., Inc., 565 U.S. 606

(2012). “And here,” in promulgating a specific regulation requiring state plans to

provide non-emergency transport of Medicaid recipients, “the agency has acted under

this grant of authority.” Id.

Further, 42 C.F.R. § 431.53 satisfies the specific elements of the Chevron

analysis. The statute itself does not directly speak to the responsibility of the State

Plan to provide non-emergency transportation. See 42 U.S.C. § 1396a. Accordingly, a

“gap” exists for the agency to fill. Chevron, 467 U.S. at 843-44. The fact that this gap

is implied and not express is not an impediment to deference. Mank, supra, at 87273 (“ Chevron suggests that in filling such gaps an agency could, in some

circumstances, reasonably clarify or amplify rights that are only inchoate or implicit

in an ambiguous statute or one that contains obvious gaps.”) When the statutory

scheme is read as a whole, it is plain that Congress intended for the Secretary to

promulgate regulations effectuating its directive to provide prompt, quality care to

Medicaid beneficiaries. See id. §§ 1396a(a)(8), (19), (70); 42 U.S.C. § 1302(a). The

agency’s determination that the mandated prompt, quality care necessitates non15

emergency transportation is a reasonable and permissible construction of the statute.

It is therefore entitled to deference.

As acknowledged herein, Chevron deference does not, by itself, mean a regulation

creates a “right” under Section 1983. Nevertheless, that this regulation would be

enforced in the same manner as law in other substantive contexts counsels in favor

of a holding that accords it the full force and effect of law.

II. In the Alternative, a Statute Read in Tandem With a Regulation May Confer

a Federally Enforceable Right If They Satisfy the Factors Set Forth in

Wilder and Gonzaga.

Even if this Court rejects the arguments asserted in Part I, it should still reverse

the district court’s holding. The Supreme Court and most Courts of Appeal have

either implicitly or explicitly allowed regulations to be read in conjunction with a

statute in order to find a federal right enforceable under Section 1983. Stated

differently, courts have used federal regulations to fill statutory gaps that might

otherwise prevent the statute from creating a federal right. Here, relevant portions

of the Medicaid Act, when read in conjunction with the Transportation Regulation,

create a clear right to transportation enforceable under Section 1983. This Court

should therefore reverse the district court’s dismissal and hold Thurman has stated

a plausible cause of action.

A. Supreme Court Authorities Expressly Contemplate that a Statute and

Regulation May be Read Together to Establish a Federal Right.

Since its holding in Thiboudot, the Court has issued at least five opinions

assessing various statutes to determine whether they create a federal right

enforceable under Section 1983. Within these cases, the Court developed a practice

of utilizing statutes and regulations together to fill in the analytical framework for

discerning these rights. For instance, in Wright v. City of Roanoke Redevelopment

and Housing Authority, 479 U.S. 418 (1987) the Court considered HUD regulations

together with the Brooke Amendment to determine whether plaintiffs could proceed

under Section 1983. The relevant portion of the Brooke Amendment set a maximum

percentage of income that public housing tenants should pay as rent. Id. at 421.

Plaintiffs argued that the Housing Authority unlawfully failed to include a

reasonable amount for utility use in determining its tenants’ rent. Id. at 421-22.

Acknowledging that the statute itself did not reference utilities, plaintiffs explicitly

relied on HUD regulations that defined the term “rent” to include utility payments in

support of their claim. Id. The district court granted summary judgment to the

Authority, holding that a private cause of action was unavailable to enforce the

Brooke Amendment. Id. at 422. The Fourth Circuit affirmed, noting that “while the

Brooke Amendment confers certain rights on tenants, these rights are enforceable

only by HUD, not by the individual tenant. ...” Id.

But the Supreme Court reversed. It explicitly rejected the premise that only HUD

could enforce the rights guaranteed by the Brooke Amendment. Id. at 423-25. While

HUD certainly had enforcement authority in certain contexts, there was no evidence

of a remedial scheme created by Congress that was “sufficiently comprehensive . . . to

demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id.

at 424 (quoting Middlesex County Sewerage Authority v. National Sea Clammers

Assn., 453 U.S. 1, 20 (1981)).

More importantly for this Court’s purposes, the Court rejected the Authority’s

argument that “neither the Brooke Amendment nor the interim regulations gave the

tenants any specific or definable rights to utilities, that is, no enforceable rights under

§ 1983.” Id. at 429-30. Instead, without any separate commentary on the role of the

regulations in creating a right under Section 1983, the Court relied on the language

of the Amendment and the regulation together to conclude they imposed a mandatory

limitation on rent that inured to the benefit of the individual tenants. Id. at 430.

Further, the Court held the HUD regulations’ requirement that at a “reasonable”

amount of utilities be included in rent was entitled to deference under Chevron as a

valid interpretation of the statute. Id.

The Court likewise overruled the Authority’s claim that the regulations’ provision

of a “reasonable” allowance for utilities was “too vague and amorphous to confer on

tenants an enforceable ‘right’ within the meaning of § 1983. ...” Id. at 431. In doing

so, the Court noted that “[t]he regulations . . . defining the statutory concept of‘rent’

as including utilities, have the force of law. ...” Id. (citing Brown, 441 U.S. at 294-95)

(emphasis added). Thus, “the benefits Congress intended to confer on tenants are

sufficiently specific and definite to qualify as enforceable rights under ... § 1983,”

and are not “beyond the competence of the judiciary to enforce.” Id. at 432. On these

bases, the Court allowed plaintiffs to proceed with their Section 1983 claim against

the Authority.

Admittedly, the majority’s dictum concerning regulations’ force and weight drew

fire from some members of the Court. In dissent, Justice O’Connor found “troubling”

the Court’s insinuation that regulations alone might create rights enforceable under

Section 1983. Id. at 437. Her primary concern was that allowing agency regulations

to create such rights would entirely untether them from Congressional intent. Id. at

438. Still, O’Connor stopped short of declaring that she would find agency regulations

could not create federal rights under any circumstances. Id. Instead, she merely

posited that the “interim” regulations the majority found authoritative in Wright

should not be construed to create such rights. Id.

Despite these concerns, the Court again relied in part on regulations to find an

enforceable Section 1983 right in Wilder v. Virginia Hospital Association, 496 U.S.

498 (1990). Like Wright, Guardians, and Thihoutot before it, Wilder involved

“spending clause” litigation. Specifically, plaintiff healthcare providers brought a

Section 1983 action to challenge the state’s methods of reimbursement under the

Medicaid Act. 496 U.S. at 501. The Medicaid Act, the Court explained, creates a

cooperative federal-state program through which the federal government provides

financial assistance to states so they may furnish medical care to needy individuals.

Id. at 502. “Although participation in the program is voluntary, participating States

must comply with certain requirements imposed by the Act and regulations

promulgated by the Secretary of Health and Human Services.” Id. To qualify for

federal assistance, the state must submit and have approved a “plan for medical

assistance” containing a number of specific features enumerated by the Act. Id. One

of those features, the Boren Amendment, requires reimbursement to providers

according to rates that the “State finds, and makes assurances satisfactory to the

Secretary, are reasonable and adequate to meet the costs which must be incurred by

efficiently and economically operated facilities.” Id. at 503 (quoting 42 U.S.C.

§ 1396a(a)(l3)(A)). Plaintiffs in Wilder sued under Section 1983 seeking revision of

Virginia’s state plan, which they claimed did not meet the requirements of the Boren

Amendment to provide “reasonable and adequate” rates for reimbursement. Id. at

504-05.

Whether the Boren Amendment creates a federal right enforceable under Section

1983, the Court held, turns on whether “the provision was intendted] to benefit the

putative plaintiff.” Id. at 509 (quoting Golden State Transit Corp. v. Los Angeles, 493

'■* U.S. 103 (1989)). If so, “the provision creates an enforceable right unless it reflects

merely a ‘congressional preference’ for a certain kind of conduct rather than a binding

obligation on the governmental unit... or unless the interest the plaintiff asserts is

‘too vague and amorphous such that it is ‘beyond the competence of the judiciary to

enforce.’” Id. (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S.

1, 19 (1981) and Golden State, 493 U.S. at 106)).2

Looking to the plain language of the statute, the Court concluded the plaintiff

health care providers were the intended beneficiaries of the Boren Amendment. Id.

at 510. The Amendment, the Court noted “is phrased in terms benefiting health care

providers” in requiring the state plan to provide the requisite payments. Id.

2 While not succinctly articulated .as a three part test, these same three factors are outlined by the

Court in Blessing v. Freestone, 520 U.S. 329 (1997)—and relied on by the district court here—as the

test for determining whether a “law” creates a federal right enforceable under Section 1983. ROA.177.

Specifically, the statute required the plan to provide payment “of the hospital

services, nursing facility services, and services in an intermediate care facility.” Id.

(quoting 42 U.S.C. § 1396a(a)(l3)(a)). These explicit references to healthcare

providers erased any doubt that they were statutes’ intended beneficiaries. Id.

With respect to the second element of its inquiry—whether the Boren Amendment

creates a binding obligation on the states—the Court again concluded that the plain

language of the statute controlled. Id. at 512. That language, the Court explained, is

cast in mandatory, rather than precatory terms, providing that a state plan “must”

provide for payment according to reasonable and adequate rates. Id. Moreover, the

fact that the Secretary was “authorized to withhold funds for noncompliance” with

the statute supported the Court’s finding that the obligation it created was

mandatory. Id.

Finally, the Court considered whether the obligation was “too vague and

ambiguous” to be judicially enforceable. Id. at 519. With respect to this factor, the

Court considered both the applicable regulations and the statute. Id. at 519-20.

Noting that the “statute and regulation set out factors which a court must consider

in adopting its rates,” the Court held that assessing a state’s findings concerning

reasonable and adequate rates was “well within the competence of the judiciary.” Id.

at 520.

Although the Court in Wilder made no direct statements respecting the role of

regulations in creating enforceable rights under Section 1983, it is nevertheless

significant for two reasons. First, the Wilder majority openly characterized its earlier

holding in Wright as suggesting that “the [statute] and its implementing regulations

did create rights enforceable under Section 1983.” This statement, while dictum,

reinforces the notion that Wright intentionally and meaningfully utilized regulations

as part of its analysis for finding enforceable federal rights. Second, Wilder dealt

broadly with the Medicaid Act, the same statute giving rise to the rights at issue in

this case. While not all of the Wilder Court’s conclusions apply to the statutory

provisions at issue here, its specific finding that the Medicaid Act’s internal

enforcement scheme did not foreclose a private right of action is significant. Although

this case features different statutory provisions and regulations, they share an

enforcement scheme with the laws at issue in Wilder. The Court’s finding that this

scheme was not so comprehensive as to foreclose a private cause of action under

Section 1983 eliminates one hurdle to finding a federal right in this case.

Two subsequent Supreme Court cases applied the same three factors used in

Wilder to determine whether certain statutes created a federal right enforceable

under Section 1983. See Suter v. Artist M., 503 U.S. 347 (1992) and Blessing v.

Freestone, 520 U.S. 329 (1997). While these cases came to the opposite conclusion of

Wright and Wilder—holding that the statutes at issue did not create rights

enforceable under Section 1983—the Court in both openly considered federal

regulations to determine the existence of such rights. Id. Specifically, the Court in

Suter noted that the regulations at issue lacked the specificity of the regulations

relied on in Wright and Wilder. Suter, 503 U.S. at 357, 59, 61-62. This was among

the factors counseling against the finding that federal right existed. Id. The

regulations in Blessing suffered the same deficiency—a lack of specificity—and also

factored into the Court’s ultimate holding. Blessing, 520 U.S. at 345. Although these

cases pulled the reins on the Courts’ findings of enforceable rights under Section

1983, they also reinforced that federal regulations could be appropriately used to

satisfy the standard used to discern those rights’ existence.

Critically, the Supreme Court’s later holdings in Alexander v. Sandoval, 532 U.S.

275 (2001) and Gonzaga, 536 U.S. at 273 do not weaken the role of federal regulations

in the Wilder/Blessing analysis. Although the 2001 decision in Sandoval did not

involve a claim under Section 1983, it is nevertheless significant. 532 U.S. at 278.

Plaintiffs in Sandoval asserted an implied right of action, rather than an enforceable

right under Section 1983. Id. Before Sandoval and Gonzaga, the private right of action

inquiry, while similar to the Section 1983 “rights” analysis, was considered to be “a

different inquiry than that involved in determining whether a private right of action

can be implied from a particular statute.” Wilder, 496 U.S. at 508 n. 9. However, the

Court in Gonzaga later held the two standards overlap in one meaningful respect—

in either case, the Court “must first determine whether Congress intended to create

a federal right.” 536 U.S. at 283. Thus, by finding a common thread in to the two

analyses, Gonzaga made Sandovals conclusions about private rights of action

relevant to the Section 1983 inquiry. See id.

Plaintiffs in Sandoval sued the Alabama Department of Transportation under

Title VI of the Civil Rights Act of 1964, 532 U.S. at 279. Although Section 601 forbids

intentional discrimination, plaintiffs claimed they could seek redress for disparate

impact (i.e. unintentional) discrimination under a federal regulation prohibiting the

state from administering programs that have the effect of subjecting individuals to

discrimination based on protected characteristics. Id. at 278-79. This regulation was

promulgated under a separate statutory section, Section 602. Id. at 278.

Starting from the premise that “private rights of action to enforce federal law

must be created by Congress,” the Court began its inquiry with the text and structure

of Title VI. Id. at 286 (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578

(1979)). First, the Court found there was an absence of “rights-creating” language in

Section 602. Id. at 288. To prove this point, the Court contrasted the language of

Sections 601 and 602. Id. at 288-89. While Section 601 decreed that “[n]o

person . . . shall... be subjected to discrimination,” Section 602 stated that “[elach

Federal department and agency is authorized and directed to effectuate the

provisions of [§ 601].” Id. Moreover, because Section 602 focused on the agency, and

not on the individuals protected, the Court determined there was no indication

Congress intended to create a private right of action for those individuals. Id. at 289.

Similarly, the Court also highlighted the complexity and restrictive nature of the

administrative enforcement scheme of Section 602, and suggested those procedures

“contradict a congressional intent to create privately enforceable rights through § 602

itself.” Id. at 289-90.

Importantly, the Court also rejected the plaintiffs’ argument that rights-creating

language in the regulations created a private right of action. Id. at 291. “Language in

a regulation” the Court explained, “may invoke a private right of action that Congress

through statutory text created, but it may_not create a right that .Congress has not.!

Id. (citing Redington, 442 U.S. at 577 n.18). Nevertheless, the Court conceded that

“when a statute has provided a general authorization for private enforcement of

regulations, it may perhaps be correct that the intent displayed in each regulation

can determine whether or not it is privately enforceable.” Id. “But it is most certainly

incorrect,” the Court added, “to say that language in a regulation can conjure up a

private cause of action that has not been authorized by Congress. Agencies may play

the sorcerer’s apprentice but not the sorcerer himself.” Id.

While the Court’s pithy reference to the sorcerer and his apprentice have

sometimes been used to diminish the role of regulations in the establishment of

private rights, its context tells a different story. Indeed, the Court in Sandoval

actually reinforced the notion that a “general” statutory authorization may be

augmented by a more specific regulation. Id. More importantly, this regulatory

“augmentation” may be determinative in whether or not the right sought is privately

enforceable. See id. The Court’s comments in Sandoval axe, in fact, consistent with

its prior use of regulations to fill statutory gaps in Wright, Wilder, Suter, and

Blessing.

While the Court in Sandoval did not directly address rights enforceable under

Section 1983, the Court in Gonzaga did. There, a student tried to enforce provisions

of the Family Educational Rights and Privacy Act of 1974 (“FERPA”) via Section

1983. Gonzaga, 536 U.S. at 277. The provision of the statute at issue provides:

No funds shall be made available under any applicable program to any

educational agency or institution which has a policy or practice of permitting

the release of education records (or personally identifiable information

contained therein . . .) of students without the written consent of their

parents to any individual, agency, or organization.

20 U.S.C. § 1232g(b)(l). In finding that no right enforceable under Section 1983

existed, the Court reiterated that unless Congress “speak[s] with a clear voice,” and

manifests an “unambiguous” intent to confer individual rights, federal funding

provisions provide no basis for enforcement by § 1983. Gonzaga, 536 U.S. at 280. In

reviewing its precedents, the Court reaffirmed that the statutes at issue in Wright

and Wilder aptly demonstrated this unambiguous intent. Id. at 280-81.

The Court, however, criticized some of the language it used in Wilder and

Blessing to describe the three-part test for identifying a right enforceable under

Section 1983. Id. at 282-83. Specifically, the Court took issue with the first element

of the test, which according to Blessing; requires that “Congress must have intended

that the provision in question benefit the plaintiff.” Id. (quoting Blessing, 520 U.S. at

340-41). The Court clarified that this “benefit” language should not be read to imply

that any plaintiff who falls “within the general zone of interest that the statute is

intended to protect” can enforce a statute under Section 1983, Id. at 283. Instead, the

Court expressly rejected “the notion that our cases permit anything short of an

unambiguously conferred right to support a cause of action brought under § 1983.”

Id. To find such a right, the statute, by it terms, must grant private rights to an

identifiable class. Id. at 283-84. It does this by being “phrased in terms of the persons

benefited.” Id. at 284. Once a plaintiff demonstrates that the statute confers an

individual right, “the right is presumptively enforceable under § 1983.” Id.

The Court ultimately held that FERPA lacked “rights-creating” language critical

to showing the requisite congressional intent. Id. at 287. FERPA’s “aggregate” focus

bolstered the Court’s conclusion that it did not create new individual rights. Id. at

289. Likewise, FERPA’s complex enforcement scheme counseled against a finding

that Congress intended to confer an individual right, particularly as contrasted with

Wright and Wilder. Id. at 289-90.

There are three critical takeaways from Gonzaga. First, Gonzaga did not make

any direct statement about the role of regulations in the creation of an enforceable

right under Section 1983. Rather, by incorporating the Sandoval analysis, the Court

reinforced the notion that specific regulations can be used to augment more general

rights-granting language in a statute. Second, Gonzaga did not overrule Wright,

Wilder, or Blessing. To the contrary, the Court seemingly went to great effort to

reinforce its analyses in those cases while simultaneously distinguishing the relevant

features of the statutes at issue. Gonzaga, 526 U.S. at 280-81. Accordingly, those cases

reliance on regulations to show the existence of an enforceable right remains

undisturbed. 3

3 The Eighth Circuit has suggested that Gonzaga overruled Wright, Wilder, and Blessing sub silentio.

Does v. Gillespie, 867 F.3d 1034, 1040 (8th Cir. 2017). That interpretation is contrary to the opinion

itself, which preserves the holdings of those cases. Gonzaga, 526 U.S. at 280-81. Equally important,

the vast majority of Courts of Appeal, including this one, have continued to rely on Wright, Wilder,

and Blessing, while simply acknowledging Gonzagas clarification of Blessing's first factor. See

Cuvillier, 503 F.3d 397, 402-03.

Third, and perhaps most importantly, when read in conjunction with Sandoval,

it is clear that Gonzagds requirement that a statute “unambiguously” confer an

individual right is not inconsistent with the premise that the language conferring

that right may be general. As long as the statute itself confers a right, “the intent

displayed in each regulation can determine whether or not it is privately enforceable.”

Sandoval, 532 U.S. at 291. Gonzaga, when taken together with the other authorities

discussed herein, allows regulations to be used to augment, explain, or clarify a right

unambiguously conferred by statute.

After Gonzaga, Courts of Appeal have continued to rely on regulations to satisfy

parts of the Wilder!Blessing test. In 2003, the First Circuit assessed the impact of

Gonzaga in a case asserting a private right of action under Section 1983 for violation

of the Nursing Home Reform Amendments to the Medicaid Act. Rolland v. Romney,

318 F.3d 42 (1st Cir. 2003). The Court specifically held that it was appropriate to

consider regulations to the extent they “invoke a private right of action that Congress

through statutory text created. ...” Id. at 52. The Court further held that the agency

view as expressed through its regulations, was entitled to deference under Chevron.

Id. Expressly relying on the regulations to provide the definition of the pivotal term

in the statutory language, the Court ultimately held that the regulation and statute

together were not too vague and amorphous to be amenable to judicial enforcement.

Id. at 53-54.

Likewise, in Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012) the Second Circuit

considered the arguments of certain Medicaid recipients that they could enforce the

statute’s fair hearing provision—”as construed by the regulation”—through an action

under Section 1983. Shakhnes, 689 F.3d at 249. The Court noted that a regulation

was undoubtedly relevant in determining the scope of a right conferred by Congress,

and expressly relied on the applicable regulation, in conjunction with the statute, to

find an enforceable right under Section 1983. Id. at 251.

Even Courts that have read Gonzaga more broadly than the First and Second

Circuits have not held that regulations may not augment or clarify a statute that

confers a federal right. The Ninth Circuit, for one, acknowledged that there was “some

role for agency regulations in applying the three-prong Blessing test to statutes.”

Save Our Valley v. Sound Transit, 335 F.3d 932, 941 (9th Cir. 2003). Likewise, while

the Sixth Circuit held, post -Gonzaga, that regulations cannot “create enforceable

rights of their own accord under § 1983,” it did not foreclose or dismiss the notion that

regulations may elucidate a right granted by the statute. Johnson v. City ofDetroit,

446 F.3d 614, 627-28 (6th Cir. 2006); see also Midwest Foster Care and Adoption

Ass’n v. Kincade, 712 F.3d 1190, 1198 n. 5 (8th Cir. 2013) (using administrative

regulation to support its conclusion that the statute did not confer an enforceable

right under Section 1983).

In view of these precedents, this Court should hold that the weight of authority

favors continued reliance on regulations, in conjunction with a statute, to find federal

rights enforceable under Section 1983.

B. Read Together, Relevant Provisions of the Medicaid Act and 42 C.F.R.

§ 431.53 Satisfy

Wilder/Blessing and Cfonsaga Standards for Creation ofa

Federal Right.

Applying the standards Set forth by the Supreme Court, this Court should find

that the following provisions of Medicaid Act, together with 42 C.F.R. § 431.53 confer

a federal right on Thurman that is enforceable under Section 1983. The rightsconferring portions of the statute are as follows:

(a) Contents

A State plan for medical assistance must—

(8) provide that all individuals wishing to make application for medical

assistance under the plan shall have opportunity to do so, and that such

assistance shall be furnished with reasonable promptness to all eligible

individuals.

(19) provide such safeguards as may be necessary to assure that eligibility

for care and services under the plan will be determined, and such care and

services will be provided, in a manner consistent with the simplicity of

administration and the best interests of the recipients;

42 U.S.C. §§ 1396a(a)(8), (19).

The accompanying regulation provides:

A State plan must —

Specify that the Medicaid agency will ensure necessary transportation for

beneficiaries to and from providers; and

Describe the methods that the agency will use to meet this requirement.

42 C.F.R. § 431.53.

The first step of the Blessing test, as modified by Gonzaga, requires this Court

to find that the statutory provision at issue unambiguously creates a federal right.

To do this, it must be phrased in “explicit rights-creating terms”—”in terms of persons

benefitted.” Gonzaga, 536 U.S. at 284. It must clearly confer an “individual

entitlement” and have an “unmistakable focus on the benefitted class.” Id. at 287. A

provision does not confer an individual right when it “speakts] only in terms of

institutional policy and practice,” or when it has an “aggregate focus” and is “not

concerned with whether the needs of any particular person have been satisfied.” Id.

at 288.

This Court, along with the First, Third, and Eleventh Circuits has expressly

concluded that Section 1396a(a)(8) does, in fact, unambiguously create a right under

these standards. Romano v. Greenstein, 721 F.3d 373 (5th Cir. 2013); Sabree ex. rel

Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004); Bryson v. Shumway, 308 F.3d 79 (1st

Cir. 2002); Doe v. Chiles, 136 F.3d 709 (llth Cir. 1998). This Court held Section

(a)(8)’s “reasonable promptness” clause is “clearly intended to benefit ‘eligible

individuals,”’ making the Medicaid recipient the intended beneficiary. Romano, 721

F.3d at 378.4 Moreover, this provision does not focus on “the [entity] . . . regulated

rather than the individuals protected.” Sandoval, 532 U.S. at 289; Romano, 721 F.3d

at 379 (Section (a)(8) does not have an aggregate focus, but is instead “concerned with

whether the needs of [particular individuals] been satisfied]. Nor do the statutory

4 Indeed, the Medicaid Act as a whole clearly exists for the benefit of eligible individuals. The statute’s

earliest available legislative history shows the aims of the Act were directed expressly towards elderly

and disabled persons. Specifically, the Act was created “[t]o provide a hospital insurance program for

the aged under the Social Security Act with a supplementary medical benefits program and an

expanded program of medical assistance

Pub. L. 89-97, July 30, 1965, 79 Stat. 286.

references to the individual appear “in the context of describing the type of‘policy or

practice’ that triggers a funding prohibition.” Gonzaga, 536 U.S. at 288.

Critically, the “rights creating language” also satisfies the exacting standards set

forth in Gonzaga. As the Third Circuit noted, the Court in Gonzaga “identified the

text of Titles VI and I as exemplars of rights-creating language.” Sabree, 367 F.3d at

190 (citing Gonzaga, 536 U.S. at 287). “Viewing Titles VI and IX,” the Third Circuit

explained, “we find it difficult, if not impossible, as a linguistic matter, to distinguish

the import of the relevant [Medicaid Act] language-‘A State plan must provide’-from

the ‘No person shall’ language of Titles VI and IX.” Id. Just as in Titles VI and IX, the

relevant terms used in Title XIX are “mandatory rather than precatory.” Id. (citing

Blessing, 520 U.S. at 341).

Second, “the right to reasonably prompt assistance is not so ‘vague and

amorphous’ as to exceed the jury’s competence.” Romano, 721 F.3d at 378. This

Conclusion is supported by Wilder, in which the Supreme Court held that a statutory

provision requiring reimbursement at rates a “State finds . . . are reasonable and

adequate. ...” was not too vague and amorphous to be unenforceable under Section

1983. 496 U.S. at 501-02. Further, this Court noted that like the statutory provision

in Wilder, Section (a)(8) has accompanying regulations that “clarify the scope of the

‘reasonable promptness” duty.” Romano, 721 F.3d at 378.

Finally, Section (a)(8) “unambiguously impose[s] a binding obligation on the

States with its mandatory language that state plans ‘must/ provide that medical

assistance ‘shall’ be furnished with reasonable promptness. Id. (citing Blessing, 520

U.S. at 341) (quotation marks omitted). Together with the other factors, Section (a)(8)

plainly creates a right enforceable under Section 1983.

This analysis applies equally to 42 U.S.C. § 1396a(a)(l9), which features the same

mandatory “A State plan must” language and expressly focuses on “the best interests

of the recipients.” This language compares favorably with the statute at issue in

Wilder in terms of its specificity and amenability to enforcement by the judiciary.

However, even if either or both of these regulations alone do not meet all of the

Blessing standards, the Transportation Regulation augments both statutes to

interpret the “reasonable promptness” and “best interest of the recipients” standards

to require non-emergency transportation to and from their medical providers. 42

C.F.R. § 431.53. As discussed above, the text of these statutes unambiguously creates

a federal right vested in individual Medicaid recipients. The Transportation

Regulation merely “defines and fleshes out the content of that right.” Shakhnes, 689

F.3d at 251. In so doing, it adds greater specificity and enables more apt enforcement

by the judiciary. Read together with the statutory language itself, this regulation

creates an enforceable right to transportation for Mr. Thurman under Section 1983.5

5 It bears mention that the Supreme Court in Armstrong v. Exceptional Child Center, Inc., 575 U.S.

.320 (2015) found that a separate portion of the Medicaid Act did not create a federal right enforceable

under Section 1983. In dicta, the Court commented that certain features of the Medicaid Act did not

counsel in favor of finding an enforceable right under Section 1983. Id. at 331-32 (acknowledging the

majority was addressing an issue the parties had not raised). Some of those assertions are directly

contrary to the analyses in Wright and Wilder. See id. This dictum is not binding and should not

In holding the statute and regulation at issue here create a federal right, this

Court must necessarily reject, at least in part, the Eleventh Circuit’s decision in

Harris, 127 F.3d at 1005-1012. Interestingly, however, the Court in Harris actually

agrees with the premise that regulations may, in conjunction with a statute, confer

rights enforceable under Section 1983. Id. at 1009. It merely came to a different

conclusion concerning the language of the statute and regulation at issue.

Specifically, in reading Section 1396a(a), the Harris court determined that the statute

itself did not create a right, and that the regulation could not do so on its own. This

Court should reject the Harris Court’s analysis for two reasons.

First, this Court has found that one of the statutory provisions at issue in

Harris—42 U.S.C. § 1396a(a)(8)—does, in fact, create a right enforceable under

Section 1983. See Romano, 721 F.3d at 389. Thus, in order to follow Harris, this Court

would have to disregard its holding in Romano.

Second, the Harris Court’s analysis is inconsistent with Wright. While the Harris

Court paid substantial lip service to the Supreme Court’s holding in Wright, it

ultimately treated applicable federal regulations with far less regard than did the

Court in Wright. Specifically, the statute in Wright stated only that a tenant could

be charged no more than a certain percentage of his income as “rent.” 479 U.S. at 420.

Utilities were not mentioned in the statute at all. Id. Instead, it was a HUD regulation

that broached the subject of utilities and defined them as a part of the “rent”

impact this Court’s decision. Central Va. Community College v. Katz, 546 U.S. 356, 363 (2006) (“we

are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”)

calculation. Id. Despite the fact that the regulation introduced a new, narrower

benefit into the broader right created by the statute, the Wright Court utilized the

two together to find an enforceable right. Id. at 429-30. Yet the Court in Harris

dismissed the regulation here because it could not find an explicit right to

transportation in the statutory language. 127 F.3d at 1010-12. It failed to recognize

the broader right created by the statute and apply the regulation to define and flesh

out that right. This approach is contrary to both Wright and Sandoval, which

contemplate that a regulation can clarify or define the content of broader statutory

right.

For these reasons, this Court should find that the 42 U.S.C. §§ 1396a(a)(8) and

(19) create broad rights to reasonably prompt and beneficial medical care that, when

read together with 42 U.S.C. § 431.53 create a right to non-emergency transportation

that is enforceable under Section 1983.

CONCLUSION

In view of the foregoing, Thurman respectfully requests that this Court reverse

the district court’s judgment dismissing this matter for failure to state a claim under

Fed. R. Civ. P. 12(b)(6) and court of appeals affirmation of that decision, and remand

to the Court below for proceedings not inconsistent with this Court’s holding.

Respectfully submitted,

/s/ Leonard Thurman

Petitioner Pro Se

120 Rucker Lane

Bentonia, MS 39040

662-673-2795

August 5, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.