Amicus Curiae Brief — Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased

Supreme Court briefJul 25, 2022

Ask Donna

What actually matters in this document.

Text

NO. 21-806

IN THE

Supreme Court of the United States

HEALTH AND HOSPITAL CORPORATION OF MARION

COUNTY, ET AL.,

Petitioners,

GORGI TALEVSKI, BY HIS NEXT FRIEND IVANKA

TALEVSKI,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

BRIEF OF ROBERT M. KERR, DIRECTOR OF

SOUTH CAROLINA DEPARTMENT OF HEALTH

AND HUMAN SERVICES AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

KELLY M. JOLLEY

ARIAIL B. KIRK

JOLLEY LAW

GROUP, LLC

810 Bellwood Road

Columbia, SC 29205

(803) 809-6500

CHRISTOPHER P. SCHANDEVEL

Counsel of Record

JOHN J. BURSCH

CODY S. BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(571) 707-4655

cschandevel@ADFlegal.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

The Court should resolve the confusion in

its caselaw over what constitutes an

unambiguously conferred private right. ............. 3

A. To create a private right through

Spending Clause legislation, Congress

must use explicit, rights-creating

terms. ............................................................. 6

B. Lower court divisions over Medicaid

Act provisions highlight the need to

clarify that Gonzaga’s clear-statement

rule controls, not Blessing’s multifactor

test. ................................................................ 6

C. The Court should explicitly discard the

discredited Wilder approach and

Blessing factors............................................ 11

D. When determining whether Congress

created a private right, courts should

look for clear and unambiguous text. ......... 16

II. If Congress wants private individuals to

enforce Spending Clause legislation, then

Congress must explicitly authorize private

remedies. ............................................................ 18

A. The public in 1871 would not have

understood Section 1983 to create a

vehicle

that

allows

private

beneficiaries to enforce Spending

Clause legislation. ....................................... 19

B. Modern contract principles also

prevent third-party beneficiaries from

suing to vindicate Spending Clause

legislation. ................................................... 20

C. The lower courts’ approach threatens

the separation of powers. ............................ 22

CONCLUSION ......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001)............................................ 18

Armstrong v. Exceptional Child Center, Inc.,

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

Astoria Federal Savings & Loan Association v.

Solimino,

501 U.S. 104 (1991)............................................ 19

Barnes v. Gorman,

536 U.S. 181 (2002)............................................ 20

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971)............................................ 23

Blessing v. Freestone,

520 U.S. 329 (1997).................................. 4, 12, 18

Bontrager v. Indiana Family & Social Services

Administration,

697 F.3d 604 (7th Cir. 2012) ............................. 11

BP America Production Co. v. Burton,

549 U.S. 84 (2006)................................................ 6

Bryson v. Shumway,

308 F.3d 79 (1st Cir. 2002) ................................ 11

BT Bourbonnais Care, LLC v. Norwood,

866 F.3d 815 (7th Cir. 2017) ............................. 10

Cannon v. University of Chicago,

441 U.S. 677 (1979)...................................... 23, 24

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981)............................................ 19

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001).............................................. 24

Cummings v. Premier Rehab Keller, PLLC,

142 S. Ct. 1562 (2022)............................ 20, 21, 25

Doe v. Kidd,

501 F.3d 348 (4th Cir. 2007) ............................. 10

Does v. Gillespie,

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

Douglas v. Independent Living Center of Southern

California, Inc.,

565 U.S. 606 (2012).............................................. 7

Egbert v. Boule,

142 S. Ct. 1793 (2022).................................. 23, 24

Food Marketing Institute v. Argus Leader Media,

139 S. Ct. 2356 (2019)........................................ 12

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

139 S. Ct. 408 (2018)................................ 3, 11, 14

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) ............................... 15

Harris v. Olszewski,

442 F.3d 456 (6th Cir. 2006) ............................... 8

Health Science Funding, LLC v. New Jersey

Department of Health & Human Services,

658 F. App’x 139 (3d Cir. 2016) ......................... 13

Hernandez v. Mesa,

140 S. Ct. 735 (2020)................................ 5, 23, 24

Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co.,

513 U.S. 527 (1995)............................................ 13

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018)........................................ 12

Jones v. District of Columbia,

996 A.2d 834 (D.C. 2010) ..................................... 4

Kennedy v. Bremerton School District,

142 S. Ct. 2407 (2022)........................................ 16

Kimble v. Marvel Entertainment, LLC,

576 U.S. 446 (2015)............................................ 12

Kwan v. United States,

272 F.3d 1360 (Fed. Cir. 2001) .......................... 21

Lamb’s Chapel v. Center Moriches Union Free

School District,

508 U.S. 384 (1993)............................................ 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................. 22

McCready v. White,

417 F.3d 700 (7th Cir. 2005) ............................... 2

Murphy v. Smith,

138 S. Ct. 784 (2018).......................................... 13

Nasello v. Eagleson,

977 F.3d 599 (7th Cir. 2020) ....................... 14, 26

New York State Citizens’ Coalition for Children v.

Poole,

922 F.3d 69 (2d Cir. 2019) ............................. 5, 15

O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980).............................................. 8

Pennhurst State School & Hospital v. Halderman,

451 U.S. 1 (1981)............................................ 2, 21

Pharmaceutical Research & Manufacturers of

America v. Walsh,

538 U.S. 644 (2003)............................................ 21

Planned Parenthood Arizona Inc. v. Betlach,

727 F.3d 960 (9th Cir. 2013) ............................... 8

Planned Parenthood of Greater Texas Family

Planning & Preventative Health Services v.

Kauffman,

981 F.3d 347 (5th Cir. 2020) ..................... 2, 8, 10

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

862 F.3d 445 (5th Cir. 2017) ............................... 8

Planned Parenthood of Indiana, Inc. v.

Commissioner of Indiana State Department of

Health,

699 F.3d 962 (7th Cir. 2012) ............................... 8

vii

Planned Parenthood of Kansas v. Andersen,

882 F.3d 1205 (10th Cir. 2018)...................... 8, 14

Planned Parenthood South Atlantic v. Baker,

941 F.3d 687 (4th Cir. 2019) ................6, 9, 14, 25

Planned Parenthood South Atlantic v. Kerr,

27 F.4th 945 (4th Cir. 2022) .................... 3, 4, 8, 9

Sabree ex rel. Sabree v. Richman,

367 F.3d 180 (3d Cir. 2004) ........................... 4, 11

Saint Anthony Hospital v. Eagleson,

2022 WL 2437844 (7th Cir. July 5,

2022) ........................................................... 5, 6, 13

Schweiker v. Chilicky,

487 U.S. 412 (1988)............................................ 23

Schwier v. Cox,

340 F.3d 1284 (11th Cir. 2003).......................... 13

Suter v. Artist M.,

503 U.S. 347 (1992).............................................. 4

West Virginia v. EPA,

142 S. Ct. 2587 (2022)........................................ 25

Wilder v. Virginia Hospital Association,

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

Will v. Michigan Department of State Police,

491 U.S. 58 (1989).............................................. 22

Wright v. City of Roanoke Redevelopment &

Housing Authority,

479 U.S. 418 (1987).............................................. 3

viii

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017).................................. 11, 14

Statutes

42 U.S.C. 1396–1 ........................................................ 7

42 U.S.C. 1396a(a)(10) ............................................. 11

42 U.S.C. 1396a(a)(13)(A) ........................................ 10

42 U.S.C. 1396a(a)(23)(A) .......................................... 7

42 U.S.C. 1396a(a)(8) ............................................... 11

42 U.S.C. 1396c .......................................................... 7

Other Authorities

1 F. Hilliard, The Law of Contracts (1872) ............. 19

9 Corbin on Contracts § 45.6 (2019) ........................ 20

C. Langdell, A Summary of the Law of Contracts

(2d ed. 1880) ....................................................... 19

Regulations

Medicaid Program; Methods for Assuring Access

to Covered Medicaid Services, 80 Fed. Reg.

67576 (Nov. 2, 2015) .......................................... 22

INTEREST OF AMICUS CURIAE 1

As Director of the South Carolina Department of

Health and Human Services, Robert M. Kerr is

charged with faithfully implementing the state’s

Medicaid program. After South Carolina determined

that abortion providers like Planned Parenthood were

not “qualified” to receive Medicaid funding for family

planning services, Planned Parenthood and a Medicaid recipient sued the Director’s predecessor, claiming a private right of action to challenge that decision.

But Congress did not unambiguously create a

private right of action in the Medicaid Act that allows

Medicaid recipients to sue States (and their officials)

for determining that their preferred provider is

unqualified. And because the Act is Spending Clause

legislation, that should have been enough to defeat

the Medicaid recipient’s claims against the Director.

Twice now, though, the Fourth Circuit, applying

precedent this Court had previously abandoned, held

that Congress did unambiguously create a privately

enforceable right in the Medicaid Act’s any-qualifiedprovider provision. The Director’s petition for a writ

of certiorari is pending. So the Director has a strong

interest in seeing this Court clear up the confusion in

its caselaw and expressly hold that Congress must

explicitly create private rights and authorize private

remedies under Spending Clause legislation like the

Medicaid Act.

1 No counsel for a party authored this brief in whole or in part,

and no person other than the amicus and his counsel made any

monetary contribution to fund the preparation or submission of

this brief. Petitioners and Respondent have submitted blanket

consents to the filing of amicus briefs in case.

SUMMARY OF THE ARGUMENT

Spending Clause legislation is “much in the

nature of a contract.” Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981). The “states receive

federal funds in exchange for compliance with

concomitant conditions.” Planned Parenthood of

Greater Tex. Fam. Plan. & Preventative Health Servs.

v. Kauffman, 981 F.3d 347, 370 (5th Cir. 2020) (en

banc) (Elrod, J., concurring). And, like any contract,

States must “voluntarily and knowingly” accept those

conditions. Pennhurst, 451 U.S. at 17.

“There can, of course, be no knowing acceptance if

a State is unaware of the conditions or is unable to

ascertain what is expected of it.” Ibid. So Congress

has a duty to “speak with a clear voice” and use unambiguous language about the conditions that Spending

Clause legislation imposes on the States. Ibid. States

cannot knowingly foresee a consequence on which

Congress was “silen[t].” McCready v. White, 417 F.3d

700, 703 (7th Cir. 2005) (Easterbrook, J.) (cleaned up).

Yet in two related ways, the Judiciary has

imposed on States terms and consequences not clearly

specified in Spending Clause legislation. First, courts

have held that Spending Clause legislation creates

private rights, even when it does not contain “explicit

rights-creating terms.” Gonzaga Univ. v. Doe, 536

U.S. 273, 284 (2002). Second, together with these

implied rights, courts have implied remedies that

allow private individuals to enforce these so-called

conditions against the States. Both errors flout

traditional contract principles, upend standard

statutory interpretation methods, and threaten

federalism and the separation-of-powers.

For over 30 years, “the caselaw on implied private

rights of action [has been] plagued by confusion and

uncertainty.” Planned Parenthood S. Atl. v. Kerr, 27

F.4th 945, 959 (4th Cir. 2022) (Richardson, J.,

concurring in the judgment). This case presents the

perfect opportunity for this Court to clarify that

plaintiffs cannot privately enforce Spending Clause

statutes through Section 1983 unless Congress

explicitly authorizes them to do so. See Gee v. Planned

Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 410

(2018) (Thomas, J., dissenting from the denial of

certiorari) (“We created this confusion. We should

clear it up.”). At the very least, the Court should clarify that Wilder and Blessing are no longer good law,

and that Congress does not create privately enforceable rights absent clear and unambiguous language.

ARGUMENT

The Court should resolve the confusion in

its caselaw over what constitutes an unambiguously conferred private right.

This Court’s guidance on when federal spending

statutes create private rights enforceable through

Section 1983 has not been a “model[ ] of clarity.”

Gonzaga, 536 U.S. at 278. The trouble started when

the Court too easily inferred privately enforceable

rights by looking at “legislative history” and statutory

“objective[s].” Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 424 (1987)

(Housing Act); Wilder v. Va. Hosp. Ass’n, 496 U.S.

498, 515 (1990) (Medicaid Act amendment). Within a

seven-year span, this Court twice tried to pull back

the throttle, offering a multifactor test that, even if

satisfied, created only a “rebuttable presumption that

the right is enforceable under § 1983.” Blessing v.

Freestone, 520 U.S. 329, 341 (1997); see also Suter v.

Artist M., 503 U.S. 347 (1992). Then, the Court

pumped the brakes even harder, replacing Blessing’s

nebulous multifactor test with a firm rule: “unless

Congress speaks with a clear voice, and manifests an

unambiguous intent to confer individual rights,

federal funding provisions provide no basis for private

enforcement by § 1983.” Gonzaga, 536 U.S. at 280

(cleaned up). And lest anyone miss the point, the

Court again intervened to clarify that “later

opinions,” like Gonzaga, “[had] plainly repudiate[d]

the ready implication of a § 1983 action that Wilder

exemplified.” Armstrong v. Exceptional Child Ctr.,

Inc., 575 U.S. 320, 330 n* (2015).

That should have settled the matter. See Jones v.

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

(calling Gonzaga a “game-changer”). But because this

Court never “explicitly overrule[d]” any precedent

over its 30-year jurisprudential evolution, lower

courts have divided repeatedly on the issue. Kerr, 27

F.4th at 959 (Richardson, J., concurring in the

judgment). Accord, e.g., Sabree ex rel. Sabree v.

Richman, 367 F.3d 180, 194 (3d Cir. 2004) (“While the

analysis and decision of the [lower court] may reflect

the direction that future Supreme Court cases in this

area will take, currently binding precedent supports

the decision of the Court.”) (Alito, J., concurring); Pet.

for Writ of Cert. at 14–29, 31–32, Kerr v. Planned

Parenthood S. Atl., No. 21-1431 (May 6, 2022)

(discussing circuit splits).

Some courts have continued to follow Wilder’s

heady approach to justify inferring privately enforceable rights in Spending Clause legislation. E.g., N.Y.

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

69, 81 & n.4 (2d Cir. 2019). Others have used the

“Blessing factors” to do the same. E.g., Saint Anthony

Hosp. v. Eagleson, 2022 WL 2437844, at *5 (7th Cir.

July 5, 2022). Still others have trodden with “caution,”

see Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020), and

have refused to imply a privately enforceable right

where Congress did not clearly and unambiguously

create one, e.g., Does v. Gillespie, 867 F.3d 1034,

1039–40 (8th Cir. 2017).

The Court should answer petitioner’s first question presented by rejecting the notion that Spending

Clause legislation ever implicitly allows for private

enforcement under Section 1983. Pet. Br. 10–38; infra

Part II. Considered against the backdrop of commonlaw contract principles in force at the time Congress

enacted Section 1983, no one would have understood

it to provide a private remedy for alleged violations of

Spending Clause legislation.

At a minimum, the Court should resolve the confusion in its caselaw over what it means for Congress

to have “unambiguously conferred” a private right.

Gonzaga, 536 U.S. at 283. That confusion has

spawned multiple circuit splits in the lower courts—

including the 5-2 split at the heart of the Director’s

pending certiorari petition over whether the Medicaid

Act’s any-qualified-provider provision creates a

private right to receive Medicaid funding for services

from the provider of one’s choice. Unless the Court

provides that necessary clarity now, these splits will

continue to deepen and spread.

A. To create a private right through

Spending Clause legislation, Congress

must use explicit, rights-creating terms.

Whether Congress has created a private right

through Spending Clause legislation is an exercise in

statutory interpretation. Planned Parenthood S. Atl.

v. Baker, 941 F.3d 687, 694–95 (4th Cir. 2019). And

when courts interpret statutes, they should always

start with the text. BP Am. Prod. Co. v. Burton, 549

U.S. 84, 91 (2006). That text must use “explicit rightscreating terms” to create private rights. Gonzaga, 536

U.S. at 284. “[U]nspoken Congressional intent should

be an oxymoron when examining whether Spending

Clause legislation contains a private right of action.”

Saint Anthony Hosp., 2022 WL 2437844, at *22

(Brennan, J., concurring and dissenting in part).

Nevertheless, most lower courts have latched on

to “loose standard[s]”—standards this Court created

but has since disavowed—and readily found private

rights lurking unmentioned in Spending Clause

statutes. Gonzaga, 536 U.S. at 282. The Court should

stop these courts from allowing plaintiffs to enforce

anything “short of an unambiguously conferred right”

under Spending Clause legislation. Id. at 283.

B. Lower court divisions over Medicaid Act

provisions highlight the need to clarify

that Gonzaga’s clear-statement rule

controls, not Blessing’s multifactor test.

In 1965, Congress created Medicaid, “a federal

program that subsidizes the States’ provision of

medical services” to families and individuals “whose

income and resources are insufficient to meet the

costs of necessary medical services.” Armstrong, 575

U.S. at 323 (quoting 42 U.S.C. 1396–1). The program

“is a cooperative federal-state program that provides

medical care to needy individuals.” Douglas v. Indep.

Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012).

“Like other Spending Clause legislation, Medicaid

offers the States a bargain: Congress provides federal

funds in exchange for the States’ agreement to spend

them in accordance with congressionally imposed

conditions.” Armstrong, 575 U.S. at 323. States create

plans and submit them to the Secretary of Health and

Human Services for approval and disbursement of

funds. 42 U.S.C. 1396-1. If the Secretary later finds

that a State has failed to “comply substantially” with

the Act’s requirements in the administration of the

plan, the Secretary may withhold all or part of the

State’s funds until “satisfied that there will no longer

be any such failure to comply.” 42 U.S.C. 1396c.

Congress amended the Medicaid Act to add

Section 1396a(a)(23)(A) in response to concerns that

States were forcing recipients to use one of a limited

number of providers. The added provision requires

that plans “must” allow “any individual eligible for

medical assistance” to obtain “assistance from any

[provider] qualified to perform the service . . . who

undertakes to provide” it. 42 U.S.C. 1396a(a)(23)(A).

Because the Medicaid Act does not define “qualified,”

States do. And on July 13, 2018, South Carolina’s

Governor issued an executive order that effectively

deemed abortion clinics unqualified to provide family

planning services. This prompted Planned Parenthood and one of its Medicaid clients to sue under

Section 1983 for an alleged Medicaid Act violation.

Whether this Medicaid amendment—“sometimes

referred to as the ‘any-qualified-provider’ or ‘freechoice-of-provider’ provision,” Kauffman, 981 F.3d at

3542—provides a private right enforceable through

Section 1983 has confounded the lower courts. Five

circuit courts have held that it does. Kerr, 27 F.4th at

959 (Fourth Circuit); Planned Parenthood of Kan. v.

Andersen, 882 F.3d 1205 (10th Cir. 2018); Planned

Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th

Cir. 2013); Planned Parenthood of Ind., Inc. v.

Comm’r of Ind. State Dep’t of Health, 699 F.3d 962

(7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456 (6th

Cir. 2006). Two circuits, including the Fifth Circuit

sitting en banc, have reached the opposite conclusion.

Kauffman, 981 F.3d at 350 (en banc Fifth Circuit)

(overruling Planned Parenthood of Gulf Coast, Inc. v.

Gee, 862 F.3d 445 (5th Cir. 2017)); Does, 867 F.3d at

1037 (Eighth Circuit).

Unsurprisingly, courts that have discovered a

privately enforceable right in the any-qualifiedprovider provision have done so using Wilder and the

Blessing factors. Consider the Fourth Circuit, which

has now twice held that a private plaintiff can enforce

the any-qualified-provider provision.

The latter label overlooks the express qualifier that

beneficiaries may only choose from a “range of qualified

providers.” O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773,

785 (1980). So the former shorthand—“any-qualifiedprovider”—is more accurate.

In its first opinion, the Fourth Circuit applied the

Blessing factors—reading Gonzaga as merely a gloss

on the first—and then, citing Wilder, asserted that

this Court has “already held that the Medicaid Act’s

administrative scheme is not sufficiently comprehensive to foreclose a private right of action enforceable

under § 1983.” Baker, 941 F.3d at 698–99 (cleaned

up). Although the court recognized that Gonzaga had

“cut back” on Wilder, it nonetheless maintained that

“Wilder’s reasoning as to the comprehensiveness of

the Medicaid Act’s enforcement scheme has not been

overturned.” Id. at 699.

Even worse, the court ignored the Armstrong

plurality’s position that “intended beneficiaries” to

“contracts between two governments” do not have a

right to sue to enforce those contracts. Armstrong, 575

U.S. at 332. Instead, the court cited two words from

that part of the opinion—the phrase “unambiguously

conferred”—and turned the plurality’s position on its

head by insisting courts should not relieve “sovereign

signatories to a contract” of the “consequences” of

their agreement, including conferring private rights

of action on third parties. Baker, 941 F.3d at 701.

In its second opinion, the Fourth Circuit doubled

down on its earlier conclusions. The court again

applied the three Blessing factors and held that they

were satisfied, adding that “if this statute does not

survive the Blessing factors, we cannot imagine one

that would.” Kerr, 27 F.4th at 956. The court also

rejected the argument that “Gonzaga effectively

abrogated Blessing” because, according to the court,

“Gonzaga never indicated that Blessing is no longer

good law.” Id. at 957.

Contrast that approach with the en banc Fifth

Circuit’s. In Kauffman, the court started with

Gonzaga and concluded that the any-qualifiedprovider provision “unambiguously provides that a

Medicaid beneficiary has the right to obtain services

from the qualified provider of her choice,” but it “does

not unambiguously say that a beneficiary may contest

or otherwise challenge a determination that the

provider of her choice is unqualified.” 981 F.3d at 359

(emphasis added). As for Wilder, the court reached

the opposite conclusion of the Fourth Circuit, noting

that Armstrong meant what it said and had “plainly

repudiate[d]” Wilder’s approach. Id. at 359. Seven

judges in the eleven-judge majority would have gone

further and recognized that this Court had discarded

Blessing, too. Id. at 371 & n.1 (Elrod, J., concurring)

(“In Gonzaga, the Court abandoned the lenient

Wilder/Blessing framework, instead requiring ‘an

unambiguously conferred right’ to support enforceability through § 1983.”) (cleaned up).

Though the confusion surrounding the anyqualified-provider provision has created a mature

circuit split, it is not the only place in the Medicaid

Act where lower courts have implied rights and remedies. The Medicaid Act is rife with provisions that

lower courts have made actionable against the States.

This includes a right for healthcare providers to

challenge States’ notice-and-comment process for

setting payment rates, BT Bourbonnais Care, LLC v.

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

(interpreting 42 U.S.C. 1396a(a)(13)(A)); a right for

individuals to object to not receiving “medical

assistance . . . with reasonable promptness,” Doe v.

Kidd, 501 F.3d 348, 355–57 (4th Cir. 2007)

(interpreting 42 U.S.C. 1396a(a)(8)); accord Bryson v.

Shumway, 308 F.3d 79, 88–89 (1st Cir. 2002); or for

not receiving “medical assistance” in the first place,

Bontrager v. Ind. Fam. & Soc. Servs. Admin., 697

F.3d 604, 606–07 (7th Cir. 2012) (interpreting 42

U.S.C. 1396a(a)(10)); accord Sabree, 367 F.3d at 189–

92. These are just the rights courts have found within

42 U.S.C. 1396a(a). The list goes on.

C. The Court should explicitly discard the

discredited

Wilder

approach

and

Blessing factors.

To make clear to lower courts that nothing “short

of an unambiguously conferred right” will suffice, this

Court needs to clean up this jurisprudential “mess.”

Gee, 139 S. Ct. at 409 (Thomas, J., dissenting from the

denial of certiorari). That starts with interring two

precedents that, despite repeated admonitions from

this Court to the contrary, Gonzaga, 536 U.S. at 282–

83; accord Armstrong, 575 U.S. at 330 n.*, lower

courts have continued to invoke: Wilder and Blessing.

Wilder embodies the “ancien regime,” a time when

this Court readily “impl[ied] causes of action not

explicit in the statutory text itself.” Ziglar v. Abbasi,

137 S. Ct. 1843, 1855 (2017). In Wilder, the Court held

that a Medicaid Act amendment “create[d] a right

enforceable by health care providers” to “reasonable

and adequate” reimbursement rates. 496 U.S. at 509–

10. Though the amendment was silent about such a

right, the Court held that the providers were the

amendment’s intended beneficiaries, and that “legislative history” affirmed that “Congress [also] intended . . . health care providers [to] be able to sue in

federal court” to enforce this right. Id. at 515–16.

Four justices dissented and chided the majority

for “virtually ignor[ing]” what mattered most: the

statutory text. Id. at 526–27 (Rehnquist, C.J.,

dissenting). The dissenters’ approach has since

become the one adopted by this Court. In case after

case, this Court has said that legislative history and

vague notions of statutory purpose cannot supplant

the language Congress enacts. Wilder’s approach is “a

relic from a bygone era of statutory construction,”

Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.

2356, 2364 (2019) (cleaned up)—a “doctrinal

dinosaur” long since gone extinct, Kimble v. Marvel

Ent., LLC, 576 U.S. 446, 458 (2015).

But the problem did not stop with Wilder. Its

casual disregard of the words Congress enacted into

law set this Court on a collision course with “the

limits of [its] constitutional authority.” See Jesner v.

Arab Bank, PLC, 138 S. Ct. 1386, 1413 (2018)

(Gorsuch, J., concurring in part and in the judgment).

When in Blessing this Court first tried to pull

back from the Wilder precipice, it created a multifactor test that ostensibly limited courts’ ability to

imply private rights. That test included three factors.

First, “Congress must have intended that the

provision in question benefit the plaintiff ”; second,

“the plaintiff must demonstrate that the right

assertedly protected by the statute is not so vague and

amorphous that its enforcement would strain judicial

competence”; and third, “the provision giving rise to

the asserted right must be couched in mandatory,

rather than precatory, terms.” Blessing, 520 U.S. at

340–41 (cleaned up).

Though intended to constrain the lower courts,

Blessing’s approach, like all multifactor tests, has had

the “practical consequence[ ]” of less “predictability”

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

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

547 (1995). Under open-ended tests like Blessing’s,

judges wield so much “discretion” that they “produce[ ]

disparate results” in practically identical cases.

Murphy v. Smith, 138 S. Ct. 784, 790 (2018). This

Court already has criticized the “confusion” that

Blessing created and has firmly “reject[ed] the notion

that [this Court’s] cases permit anything short of an

unambiguously conferred right.” Gonzaga, 536 U.S.

at 283. Notably, in doing so the Court refused to apply

Blessing’s “multifactor balancing test.” Id. at 286.

But because the Court did not explicitly overrule

Blessing in the Gonzaga opinion, lower courts have

continued to use Blessing at their fancy. Some courts

view the multifactor test as unaffected and continue

to use it. E.g., Saint Anthony Hosp., 2022 WL

2437844, at *5. Some see Gonzaga as merely

establishing a threshold question for courts to address

before applying the Blessing factors. Schwier v. Cox,

340 F.3d 1284, 1291 (11th Cir. 2003). Still others see

Gonzaga as adding a safety valve that kicks in only

after courts have evaluated the Blessing factors.

Health Sci. Funding, LLC v. N.J. Dep’t of Health &

Hum. Servs., 658 F. App’x 139, 141 (3d Cir. 2016).

This Court’s equivocation on Wilder has had a

similar effect. If anything, this Court has spoken more

harshly about Wilder than Blessing. For instance, the

dissent in Gonzaga recognized that the Court “sub

silentio overrule[d] . . . Wilder” because the statute in

Wilder “did not clearly and unambiguously intend

enforceability under § 1983.” Gonzaga, 536 U.S. at

300 n.8 (Stevens, J., dissenting) (cleaned up). More

recently, a plurality of this Court described Wilder’s

approach as “plainly repudiate[d].” Armstrong, 575

U.S. at 330 n.*. Yet lower courts continue to apply

Wilder as though it remains good law.3 E.g., Planned

Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1229

& n.16 (10th Cir. 2018).

In the end, the confusion that Gonzaga decried

continues to dominate. “Courts are not even able to

identity which of [this Court’s] decisions are binding.”

Gee, 139 S. Ct. at 410 (Thomas, J., dissenting from the

denial of certiorari) (cleaned up).

Tellingly, which decision the lower courts apply

almost always determines whether they hold that

Congress has created a private right. Courts that

apply Gonzaga have, like this Court, ended up

“adopt[ing] a far more cautious course.” Ziglar, 137 S.

Ct. at 1855. And like this Court, those lower courts

have “repeatedly declined to create private rights of

action under statutes that set conditions on federal

funding of state programs.” Nasello v. Eagleson, 977

F.3d 599, 601 (7th Cir. 2020) (Easterbrook, J.).

3 As the Eighth Circuit correctly noted, this Court

will never

again confront the statute at issue in Wilder because Congress

has since repealed it. Does v. Gillespie, 867 F.3d 1034, 1040 (8th

Cir. 2017). But see Planned Parenthood S. Atl. v. Baker, 941 F.3d

687, 699 (4th Cir. 2019) (“Wilder’s reasoning as to the

comprehensiveness of the Medicaid Act’s enforcement scheme

has not been overturned.”).

And then there are the lower courts that still

apply Wilder and Blessing. Time and again, these

courts have discovered private rights where Congress

has been anything but clear on its intent to create

them. For instance, these courts have held that foster

parents may privately contest the amount of fostercare maintenance that States pay under the Adoption

Assistance and Child Welfare Act. E.g., Poole, 922

F.3d at 74 (joining the Sixth and Ninth Circuits in

finding a privately enforceable right). They have said

that nursing home residents can sue States for failing

to ensure their “highest practicable physical, mental,

and psychosocial well-being” under the Federal

Nursing Home Reform Amendments. E.g., Grammer

v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520,

524–25, 532 (3d Cir. 2009). And, as detailed more fully

above, they have unearthed scores of privately

enforceable rights under the Medicaid Act. See supra

Part I.B.

Sometimes this confusion plays out not just across

circuits but even within them. Majorities applying

Gonzaga have declined to declare private rights that

the dissent would have recognized by applying the

Blessing factors. Compare Does, 867 F.3d at 1039–42

(following Gonzaga and identifying no private right),

with id. at 1049–51 (Melloy, J., dissenting) (applying

Blessing and discovering a private right). And vice

versa. Compare Poole, 922 F.3d at 79 (applying

Blessing’s “three-factor test” as “good law” and

recognizing a private right), with id. at 94

(Livingston, J., dissenting) (questioning “the vitality

of the Blessing test” and declaring no private right

under Gonzaga).

As sometimes happens, the “shortcomings

associated with” Wilder’s and Blessing’s approach had

become “so apparent” to this Court in Gonzaga that it

“abandoned” these precedents. Kennedy v. Bremerton

Sch. Dist., 142 S. Ct. 2407, 2427 (2022) (cleaned up).

Their loose approach and nebulous multifactor test

have “invited chaos in lower courts,” and have “led to

differing results in materially identical cases.” Ibid.

(cleaned up). Like all multifactor tests, the one

endorsed in Blessing also has “created a minefield for

legislators” in Congress—and for the States who

agree to contract with the federal government by

accepting federal funding. Ibid. (cleaned up). Lest the

approach embodied in Wilder and Blessing become

“some ghoul . . . that repeatedly sits up in its grave

and shuffles abroad,” cf. Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 398

(1993) (Scalia, J., concurring in the judgment), this

Court should formally recognize these cases’ collective

demise, cf. Kennedy, 142 S. Ct. at 2428 n.4.

D. When determining whether Congress

created a private right, courts should

look for clear and unambiguous text.

In place of Blessing’s nebulous multifactor test,

this Court should make clear that Congress creates a

private right under Spending Clause legislation only

using “explicit rights-creating terms.” Gonzaga, 536

U.S. at 284. And the Court should expressly discard

Blessing’s malleable factors as unhelpful and countertextual. Instead, courts should do what they do best

and interpret a statute with the tried-and-true tools

of statutory interpretation.

In Does, for example, the Eighth Circuit

demonstrated a principled approach that looks for

“rights-creating terms” without relying on Wilder or

Blessing. There, the court examined whether the

Medicaid Act’s any-qualified-provider provision

creates a privately enforceable right. 867 F.3d at

1041. The court noted that “statutes with an

aggregate focus,” like the Medicaid Act, do not “give

rise to individual rights.” Id. at 1042 (emphasis

added). So, too, with this particular provision. It

“focus[ed]” on the “federal agency charged with

approving” state Medicaid plans, whereas individuals

were “two steps removed” from the statute. Id. at

1041. Moreover, Congress “expressly conferred” a

means of enforcing the statute—not with individuals

but instead with the Secretary of Health and Human

Services. Ibid.

Finally, the court reasoned that the “structural

elements of the statute and language in a discrete

subsection”—specifically, language “nested within

one of eighty-three subsections” and “two steps

removed from the Act’s focus”—at best gave “mixed

signals about legislative intent.” Id. at 1042–43. And

mixed signals do not manifest a clear and

unambiguous intent to create a private right. Ibid.

The Eighth Circuit’s reasoning is sound. And it

proves that, untethered from Wilder’s “bygone”

approach and Blessing’s “multifactor balancing test,”

Gonzaga, 536 U.S. at 286, lower courts can more

easily heed this Court’s admonition that nothing

“short of an unambiguously conferred right” can

“support a cause of action brought under § 1983,” id.

at 283.

II. If Congress wants private individuals to

enforce Spending Clause legislation, then

Congress must explicitly authorize private

remedies.

Spending Clause legislation must explicitly

“create not just a private right but also a private

remedy.” Alexander v. Sandoval, 532 U.S. 275, 286

(2001). Some lower courts have discovered that

remedy in a statute outside the Spending Clause

legislation itself: Section 1983.

But Section 1983 provides only a general “remedy

for the vindication of rights secured by federal

statutes.” Gonzaga, 536 U.S. at 284. And “[o]nce a

plaintiff demonstrates that a statute confers an

individual right,” that right is only “presumptively

enforceable by § 1983.” Ibid. (emphasis added).

Spending Clause legislation’s contractual context

should defeat that general presumption. Under

traditional contract principles—both at the time the

42d Congress enacted Section 1983 and today—

outside parties, including third-party beneficiaries,

are treated as “stranger[s] to the contract” who cannot

sue to vindicate its terms. Blessing, 520 U.S. at 349–

50 (Scalia, J., concurring). So if Congress wants to

create a private right through Spending Clause

legislation that is enforceable via Section 1983,

Congress must explicitly say so.

A. The public in 1871 would not have

understood Section 1983 to create a

vehicle that allows private beneficiaries

to enforce Spending Clause legislation.

When the 42d Congress enacted Section 1983 in

1871, the common law prevented a person “for whose

benefit a promise was made, if not related to the

promise,” from suing “upon the promise.” C. Langdell,

A Summary of the Law of Contracts 79 (2d ed. 1880).

The only person who could sue to vindicate a contract

was “the party with whom the contract [was] made”—

even if “the beneficial interest” vested in a third party

outside the contract. 1 F. Hilliard, The Law of

Contracts 422 (1872).

The 42d Congress was “familiar with common-law

principles” and intended these “principles to obtain,

absent specific provisions to the contrary.” City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258

(1981); accord Astoria Fed. Sav. & Loan Ass’n v.

Solimino, 501 U.S. 104, 108 (1991) (“[W]here a

common-law principle is well-established . . . the

courts may take it as a given that Congress has

legislated with an expectation that the principle will

apply except when a statutory purpose to the contrary

is evident.” (cleaned up)). When the 42d Congress

enacted Section 1983, it expressed no specific intent

to abrogate the common law of contracts. That

principle remains in effect and prevents private

parties from using Section 1983 to enforce Spending

Clause legislation absent contrary congressional

authorization.

B. Modern contract principles also prevent

third-party beneficiaries from suing to

vindicate Spending Clause legislation.

Modern contract principles also prohibit private

parties from enforcing Spending Clause legislation

through Section 1983. Just this year, this Court

affirmed that Spending Clause legislation’s

contractual nature “limits the scope of available

remedies in actions brought to enforce Spending

Clause statutes.” Cummings v. Premier Rehab Keller,

PLLC, 142 S. Ct. 1562, 1570 (2022) (cleaned up). In

Cummings, this Court considered whether Congress

authorized “damages for emotional harm” under a

variety of Spending Clause statutes. Id. at 1569. After

finding that the various statutory texts “contain[ed]

no express remedies,” this Court looked at “remedies

traditionally available in suits for breach of contract.”

Id. at 1571 (quoting Barnes v. Gorman, 536 U.S. 181,

187 (2002)). Absent explicit statutory text to the

contrary, “a federal funding recipient may be

considered on notice that it is subject . . . [only] to

those remedies traditionally available in suits for

breach of contract.” Ibid. (cleaned up).

The government “usually operates in the general

public interest,” so private individuals who benefit

from Spending Clause legislation are at best

“presumed to be incidental beneficiaries.” 9 Corbin on

Contracts § 45.6 (2019). Though today third-party

beneficiaries can sometimes “sue to enforce the

obligations of private contracting parties,” that

principle does not extend to “contracts between a

private party and the government—much less . . .

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

332 (plurality op.) (cleaned up); accord Pharm.

Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 683

(2003) (Thomas, J., concurring in the judgment)

(“This contract analogy raises serious questions as to

whether third parties may sue to enforce Spending

Clause legislation.”); Kwan v. United States, 272 F.3d

1360, 1363 (Fed. Cir. 2001) (uncovering “no authority

. . . whereby an individual has been found entitled to

judicial enforcement of a government-to-government

agreement on the legal theory that they are third

party beneficiaries of the agreement”).

A private action to enforce a contract between two

governments is therefore “generally not available”

and not considered a “usual contract” remedy.

Cummings, 142 S. Ct. at 1571. Courts should not

assume that States have, “merely by accepting funds,

implicitly consented to” liability beyond what is

traditionally available. Ibid.

To shut the door on implied Section 1983

enforceability for Spending Clause legislation would

not leave private individuals without recourse,

though. Instead, “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.

Moreover, in Spending Clause statutes, Congress

regularly authorizes the Executive Branch to

“promulgate regulations” governing compliance and

enforcement. Does, 867 F.3d at 1041 (Medicaid Act).

Agencies take these duties seriously. After this Court

decided Armstrong, Centers for Medicare and Medicaid Services promulgated regulations to “strengthen

CMS review and enforcement capabilities.” Medicaid

Program; Methods for Assuring Access to Covered

Medicaid Services, 80 Fed. Reg. 67576, 67578 (Nov. 2,

2015). And if an agency refuses to perform legal

obligations, an individual can “seek judicial review of

the agency’s refusal on the grounds that it is

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” and can “ask

the court to compel agency action unlawfully withheld

or unreasonably delayed.” Armstrong, 575 U.S. at 336

(Breyer, J., concurring in part and in the judgment)

(cleaned up).

If Congress wants to go further and condition

States’ receipt of federal funds on third-party

lawsuits, then Congress “must make its intention to

do so unmistakably clear in the language of the

statute” so that the States understand this potential

consequence. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 65 (1989) (cleaned up).

C. The lower courts’ approach threatens

the separation of powers.

Whenever the lower courts infer private rights,

imply private remedies, or assume that Congress

intended Spending Clause enforcement through

Section 1983, they risk offending the Constitution’s

carefully balanced separation-of-powers principle.

Under Article III, courts adjudicate rights; they do not

create them. The “province of the court is, solely, to

decide on the rights of individuals.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (emphasis

added). The obvious converse is that courts do not

make up rights by implying them from silent texts.

By contrast, creating rights and remedies is, “a

legislative endeavor.” Egbert v. Boule, 142 S. Ct. 1793,

1802 (2022). It involves “a range of policy considerations,” such as “economic and governmental concerns,

administrative costs, and the impact on governmental

operations systemwide.” Id. at 1802–03 (quoting

Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388, 407 (1971) (Harlan, J., concurring in the

judgment)) (cleaned up). Balancing these interests

“often demands compromise,” which may include

“creat[ing] a right or prohibit[ing] specified conduct”

but not “authorizing private” remedies. Hernandez,

140 S. Ct. at 742. “Weighing the costs and benefits of

new laws is the bread and butter” of legislatures, not

“federal courts charged with deciding cases and

controversies under existing law.” Egbert, 142 S. Ct.

at 1810 (Gorsuch, J., concurring in the judgment).

Since Congress is “far more competent than the

Judiciary to weigh such policy considerations,” the

Constitution, by separating the legislative power from

the judicial, gives Congress the power to create rights

and the means to enforce them. Id. at 1803 (quoting

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988));

accord Hernandez, 140 S. Ct. at 742. This separation

not only complements Congress’s prerogatives but

also forces legislators—members of the most

accountable Branch—to make the hard choices that

come “through the open debate of the democratic

process.” Cannon v. Univ. of Chi., 441 U.S. 677, 743

(1979) (Powell, J., dissenting).

As Justice Powell recognized over four decades

ago, when the Judiciary implies rights and remedies,

it inappropriately “assume[s]” that “policymaking

authority vested by the Constitution in the

Legislative Branch.” Ibid. (Powell, J., dissenting).

That in turn encourages Congress “to shirk its

constitutional obligation and leave the issue to the

courts”—the Branch least accountable to the public—

with “attendant prejudice to everyone concerned.”

Ibid. (Powell, J., dissenting).

This Court already has taken steps to safeguard

the separation-of-powers principle from judicial

encroachment in similar contexts. Just this year, the

Court affirmed that it is “[n]ow long past the heady

days in which this Court assumed common-law

powers to create causes of action.” Egbert, 142 S. Ct.

at 1802 (quoting Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 75 (2001) (Scalia, J., concurring)). Twelve

times over the last 42 years, this Court refused to

imply various causes of action under the Constitution.

Id. at 1799–1800 (collecting cases). By “emphasiz[ing]

that recognizing a cause of action under [the

Constitution] is a disfavored judicial activity,” id. at

1803 (cleaned up), this Court appropriately “corrected

course,” Hernandez, 140 S. Ct. at 751 (Thomas, J.,

concurring). It should do the same in the statutory

context.

The Court can start by doubling down on

Gonzaga’s admonition that courts only should recognize statutory rights and remedies when Congress

uses explicit language. This approach protects the

separation-of-powers principle by functioning much

like a clear-statement rule. Clear-statement rules

“ensure that the government does not inadvertently

cross constitutional lines.” West Virginia v. EPA, 142

S. Ct. 2587, 2620 (2022) (Gorsuch, J., concurring)

(cleaned up). For instance, in administrative law,

clear-statement rules require that agencies, when

“seek[ing] to resolve major questions,” act only “with

clear congressional authorization and do not exploit

some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond

those the people’s representatives actually conferred

on them.” Ibid. (Gorsuch, J., concurring) (cleaned up).

In the same way, Gonzaga’s requirement that Congress use “explicit rights-creating terms” in Spending

Clause legislation ensures that courts do not impose

conditions on States ex ante by “exploit[ing] some gap,

ambiguity, or doubtful expression” in the Spending

Clause legislation. Ibid. (Gorsuch, J., concurring).

The separation-of-powers principle—perhaps

even “more than [the] contract-law analysis” noted

above—“counsels against judicially authorizing”

private enforcement of Spending Clause statutes

where Congress has not explicitly provided the means

to do so. Cummings, 142 S. Ct. at 1577 (Kavanaugh,

J., concurring). This Court should so hold.

***

The lower courts need clarity. “What is the proper

framework for determining whether a given

statute”—particularly a Spending Clause statute—

“creates a right that is privately enforceable?” Baker,

941 F.3d at 708 (Richardson, J., concurring). To

answer that broad question, this Court must first

answer a narrower one: “So are Wilder, specifically,

and the Blessing factors, generally, still good law?” Id.

at 709.

Tellingly, in “the three decades since Wilder, [this

Court] has repeatedly declined to create private

rights of action under statutes that set conditions on

federal funding of state programs.” Nasello, 977 F.3d

at 601. The Court has described Wilder as “plainly

repudiated” and has, in other contexts, abandoned its

approach. This Court should take the necessary next

step and inter Wilder once and for all.

This Court should do the same for Blessing. The

Blessing factors worked so much mischief that this

Court saw fit to criticize the test and eschew applying

it. Yet in the absence of an explicit overruling from

this Court, that mischief has continued. This Court

should finally overrule the Blessing factors.

Free from this precedential baggage, this Court

should firmly reiterate what it said in Gonzaga:

Congress cannot create privately enforceable rights

without clear and unambiguous language to the

contrary. To determine whether Congress used

“explicit rights-creating terms,” courts should do

what they do best and apply the traditional tools of

statutory interpretation.

Finally, this Court should reaffirm that, with

Spending Clause legislation specifically, Congress

must explicitly authorize a private remedy—

including Section 1983 enforcement. Although

Section 1983 serves as a presumptive remedy in many

other contexts, the contractual nature of Spending

Clause legislation defeats that presumption and

requires an explicit green light from Congress.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,