Respondents 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 briefSep 16, 2022
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No. 21-806
In the Supreme Court of the United States
HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY,
ET AL., PETITIONERS
v.
IVANKA TALEVSKI, PERSONAL REPRESENTATIVE OF THE
ESTATE OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR RESPONDENT
SUSIE TALEVSKI
429 Hampshire Ct.
Valparaiso, IN 46385
JAY MEISENHELDER
EMPLOYMENT &
CIVIL RIGHTS LEGAL
SERVICES, P.C.
650 N. Girls School Rd.
Suite D40
Indianapolis, IN 46214
LORELI WRIGHT
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 80202
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
KRISTINE BLACKWOOD
STEPHEN K. WIRTH
KOLYA D. GLICK
CASEY BROUHARD
ERNESTO M. HERNÁNDEZ
ALYSSA T. GERSTNER
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
WILLIAM T. SHARON
LAUREL RUZA
HANNAH GRACE
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th St.
New York, NY 10019
QUESTIONS PRESENTED
Respondent Gorgi Talevski was a resident of
Valparaiso Care and Rehabilitation (VCR), a government
nursing home in Valparaiso, Indiana. He had dementia.
VCR found caring for him difficult, so it administered
psychotropic drugs to restrain him, then involuntarily
transferred him to another facility. The Federal Nursing
Home Reform Act (FNHRA) specifies that nursing
homes in the Medicaid program “must protect” “the
right” of “each resident” to be “free from … chemical
restraints imposed for purposes of discipline or
convenience,” 42 U.S.C. § 1396r(c)(1)(A)(ii), and “must not
transfer or discharge the resident” without notice and
consent except in narrow circumstances not present here,
§ 1396r(c)(2)(A). The Civil Rights Act of 1871 provides a
cause of action against any person who, under color of
state law, deprives another of “any rights, privileges, or
immunities secured by the Constitution and laws.” § 1983.
Respondent’s wife, his guardian, sued VCR and its
affiliates under § 1983 on his behalf for violating his
FNHRA rights.
The questions presented are:
1. Whether this Court should overrule a half-century
of precedent that has consistently interpreted § 1983 as
capable of securing “rights” under “laws” enacted
pursuant to the Spending Clause.
2. Whether the Federal Nursing Home Reform Act’s
rights against chemical restraint and improper discharge
and transfer are federal rights that § 1983 protects.
TABLE OF CONTENTS
Page
Introduction .......................................................................... 1
Statement .............................................................................. 4
A. Statutory Background............................................ 4
B. Factual Background ............................................. 16
Summary of Argument ...................................................... 18
Argument ............................................................................ 19
I. FNHRA’s Rights Against Chemical Restraint
and Involuntary Discharge and Transfer Are
Enforceable Under § 1983 ......................................... 19
A. Rights protected by Spending Clause
statutes are “rights” “secured by” the “laws” ... 19
B. FNHRA’s chemical restraint and wrongful
discharge and transfer rights are individually
enforceable rights that § 1983 protects .............. 32
II. An Adverse Ruling Would Be Disastrous For
Federal Safety-Net Programs .................................. 45
Conclusion ........................................................................... 46
Appendix ............................................................................. 1a
(ii)
TABLE OF AUTHORITIES
Cases
Page(s)
The Amiable Isabella,
19 U.S. (6 Wheat.) 1 (1821) .............................................. 38
Anderson v. Ghaly,
930 F.3d 1066 (9th Cir. 2019) .................................... 39, 40
Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) ........................................................... 21
Armstrong v. Exceptional Child Center,
Inc.,
575 U.S. 320 (2015) ........................................................... 12
Becerra v. Empire Health Found.,
142 S. Ct. 2354 (2022) ....................................................... 43
Biden v. Texas,
142 S. Ct. 2528 (2022) ....................................................... 22
Blessing v. Freestone,
520 U.S. 329 (1997) .................................................. passim
Bomar v. Keyes,
162 F.2d 136 (2d Cir. 1947) ................................................ 5
Bostock v. Clayton Cnty.,
140 S. Ct. 1731 (2020) ....................................................... 21
Bragdon v. Abbott,
524 U.S. 624 (1998) ........................................................... 24
Burns v. Alcala,
420 U.S. 575 (1975) ............................................................. 6
Cal. Dep’t of Hum. Res. Dev. v. Java,
402 U.S. 121 (1971) ....................................................... 5, 23
Calder v. Bull,
3 U.S. (3 Dall.) 386 (1798) ................................................ 20
Carleson v. Remillard,
406 U.S. 598 (1972) ....................................................... 6, 23
(iii)
iv
Cases—Continued
Page(s)
City of Rancho Palos Verdes, Cal. v.
Abrams,
544 U.S. 113 (2005) ..................................................... 40, 43
Civil Rights Cases,
109 U.S. 3 (1883) ................................................................. 5
Cort v. Ash,
422 U.S. 66 (1975) ............................................................... 3
Crawford-El v. Britton,
523 U.S. 574 (1998) ........................................................... 40
Cree v. Washington,
990 F.2d 1256 (9th Cir. 1993) .......................................... 30
Cree v. Waterbury,
78 F.3d 1400 (9th Cir. 1996) ............................................ 30
Dandridge v. Williams,
397 U.S. 471 (1970) ............................................................. 5
Davis v. County of Westmoreland,
844 A.2d 54 (Pa. Commw. Ct. 2004) ............................... 42
District of Columbia v. Carter,
409 U.S. 418 (1973) ............................................................. 6
DuBerry v. District of Columbia,
824 F.3d 1046 (D.C. Cir. 2016) .................................... 3, 31
Edelman v. Jordan,
415 U.S. 651 (1974) ................................................... 1, 6, 23
Edye v. Robertson,
112 U.S. 580 (1884) ........................................................... 31
FCC v. NextWave Pers. Commc’ns Inc.,
537 U.S. 293 (2003) ........................................................... 38
First Nat. Bank of Omaha v. Marquette
Nat. Bank of Minneapolis,
636 F.2d 195 (8th Cir. 1980) ............................................ 36
v
Cases—Continued
Page(s)
Fitzgerald v. Barnstable Sch. Comm.,
555 U.S. 246 (2009) ............................................... 39, 40, 41
Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1 (1824) .............................................. 20
Golden State Transit Corp. v. City of
Los Angeles,
493 U.S. 103 (1989) ........................................................... 40
Gonzaga University v. Doe,
536 U.S. 273 (2002) .................................................. passim
Hagans v. Lavine,
415 U.S. 528 (1974) ............................................................. 6
Hague v. Comm. Indus. Org.,
307 U.S. 496 (1939) ........................................................... 20
Halliburton Co. v. Erica P. John
Fund, Inc.,
573 U.S. 258 (2014) ........................................................... 25
Harrison v. Sterry,
9 U.S. (5 Cranch) 289 (1809)............................................ 20
Hendrick v. Lindsay,
93 U.S. 143 (1876) ............................................................. 28
Hudson v. Michigan,
547 U.S. 586 (2006) ........................................................... 40
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred
Int’l, Inc.,
534 U.S. 124 (2001) ........................................................... 38
Jefferson v. Hackney,
406 U.S. 535 (1972) ............................................................. 6
Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701 (1989) ............................................................. 5
Kalina v. Fletcher,
522 U.S. 118 (1997) ..................................................... 27, 28
vi
Cases—Continued
Page(s)
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015) ........................................................... 25
King v. Smith,
392 U.S. 309 (1968) ............................................................. 5
Knick v. Twp. of Scott,
139 S. Ct. 2162 (2019) ......................................................... 4
Lewis v. Martin,
397 U.S. 552 (1970) ............................................................. 5
Maine v. Thiboutot,
448 U.S. 1 (1980) ....................................... 1, 8, 9, 21, 23, 24
McGrath v. Kristensen,
340 U.S. 162 (1950) ........................................................... 28
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014) ..................................................... 25, 26
Middlesex Cnty. Sewerage Auth. v. Nat’l
Sea Clammers Ass’n,
453 U.S. 1 (1981) ......................................................... 40, 43
Miller v. Youakim,
440 U.S. 125 (1979) ....................................................... 6, 23
Mitchum v. Foster,
407 U.S. 225 (1972) ................................................... 4, 5, 40
Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978) ..................................................... 25, 26
Morton v. Mancari,
417 U.S. 535 (1974) ........................................................... 38
N.Y. Dep’t of Soc. Servs. v. Dublino,
413 U.S. 405 (1973) ............................................................. 6
Neal v. United States,
516 U.S. 284 (1996) ........................................................... 25
Ohio Bureau of Emp. Servs. v. Hodory,
431 U.S. 471 (1977) ............................................................. 6
vii
Cases—Continued
Page(s)
Oklahoma v. Castro-Huerta,
142 S. Ct. 2486 (2022) ................................................. 27, 28
Oklahoma City v. Tuttle,
471 U.S. 808 (1985) ........................................................... 25
Patsy v. Bd. of Regents,
457 U.S. 496 (1982) ....................................................... 6, 25
Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ........................................................... 25
Payne v. Tennessee,
501 U.S. 808 (1991) ........................................................... 25
Pennhurst State School and Hospital v.
Halderman,
451 U.S. 1 (1981) ............................................... 9, 10, 15, 36
Philbrook v. Glodgett,
421 U.S. 707 (1975) ....................................................... 6, 23
Pulliam v. Allen,
466 U.S. 522 (1984) ........................................................... 11
Quarles v. United States,
139 S. Ct. 1872 (2019) ................................................. 22, 23
Quern v. Mandley,
436 U.S. 725 (1978) ............................................................. 6
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ....................................................... 25
Romero v. Kitsap Cnty.,
931 F.2d 624 (9th Cir. 1991) ............................................ 30
Rosado v. Wyman,
397 U.S. 397 (1970) ............................................. 5, 6, 22, 23
Sekhar v. United States,
570 U.S. 729 (2013) ........................................................... 24
Shea v. Vialpando,
416 U.S. 251 (1974) ....................................................... 6, 23
viii
Cases—Continued
Page(s)
Steward Machine Co. v. Davis,
301 U.S. 548 (1937) ........................................................... 30
Suter v. Artist M.,
503 U.S. 347 (1992) .................................................. passim
Texas v. Johnson,
491 U.S. 397 (1989) ........................................................... 45
Texas Dep’t of Hous. & Cmty. Affs. v.
Inclusive Communities Project, Inc.,
576 U.S. 519 (2015) ............................................... 22, 23, 25
Townsend v. Swank,
404 U.S. 282 (1971) ................................................... 5, 6, 23
TVA v. Hill,
437 U.S. 153 (1978) ............................................................. 8
U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc.,
508 U.S. 439 (1993) ............................................................. 4
UARG v. EPA,
573 U.S. 302 (2014) ........................................................... 42
Van Lare v. Hurley,
421 U.S. 338 (1975) ....................................................... 6, 23
West Virginia v. EPA,
142 S. Ct. 2587 (2022) ....................................................... 42
Wilder v. Virginia Hosp. Ass’n,
496 U.S. 498 (1990) ............................... 2, 10, 13, 23, 40, 41
Wooden v. United States,
142 S. Ct. 1063 (2022) ....................................................... 31
Wright v. City of Roanoke Redevelopment
& Housing Authority,
479 U.S. 418 (1987) ................................... 10, 13, 23, 40, 41
ix
Cases—Continued
Page(s)
Yellen v. Confederated Tribes of Chehalis
Rsrv.,
141 S. Ct. 2434 (2021) ....................................................... 27
Statutes and Regulations
18 U.S.C. § 926C .............................................................. 3, 31
20 U.S.C. § 1232g ................................................................. 12
20 U.S.C. § 1232g(f) ............................................................. 13
Social Security Act, 42 U.S.C. § 301 et seq. ........................ 1
Tit. IV, 42 U.S.C. § 601 et seq.
42 U.S.C. § 671(a) .................................................... 10, 11
Tit. XI, 42 U.S.C. § 1301 et seq.
42 U.S.C. § 1320a-2.................................................. 11, 22
42 U.S.C. § 1320a-10................................................ 11, 22
Tit. XVIII, 42 U.S.C. § 1395 et seq.
42 U.S.C. § 1395i-3(c) .................................................... 13
42 U.S.C. § 1437a ........................................................... 10
Tit. XIX, 42 U.S.C. § 1396 et seq.
42 U.S.C. § 1396r(c) ................................................. 13, 33
42 U.S.C. § 1396r(c)(1)(A) ...................................... 13, 33
42 U.S.C. § 1396r(c)(1)(A)(ii)........................................ 14
42 U.S.C. § 1396r(c)(1)(A)(iv) ....................................... 39
42 U.S.C. § 1396r(c)(1)(B) ............................................ 14
42 U.S.C. § 1396r(c)(1)(B)(i) ......................................... 33
42 U.S.C. § 1396r(c)(1)(B)(ii)........................................ 33
42 U.S.C. § 1396r(c)(1)(C) ...................................... 14, 33
42 U.S.C. § 1396r(c)(2)(A) ...................................... 14, 33
42 U.S.C. § 1396r(e)(3) .................................................. 39
42 U.S.C. § 1396r(h)(3)(A) ............................................ 42
42 U.S.C. § 1396r(h)(8)................................ 16, 37, 40, 43
x
Statutes and Regulations—Continued
Page(s)
42 U.S.C. § 1983 .......................................................... passim
17 Stat. 13 ............................................................................ 4
Rev. Stat. § 1977 ........................................................... 4, 31
Rev. Stat. § 1978 ........................................................... 4, 31
Rev. Stat. § 1979 ................................................................. 4
Rev. Stat. § 2004 ................................................................. 4
Rev. Stat. § 2005 ........................................................... 4, 37
Rev. Stat. § 563(12)............................................................. 5
Civil Rights of Institutionalized Persons
Act, 42 U.S.C. § 1997 et seq. .............................................. 6
42 U.S.C. § 1997(1)(A) ........................................................ 7
42 U.S.C. § 1997(1)(B)(v) ................................................... 7
42 U.S.C. § 1997(2) ............................................................. 7
42 U.S.C. § 1997a ............................................................ 7, 8
42 U.S.C. § 1997a(a) ........................................................... 7
42 U.S.C. § 6010 ............................................................... 9, 10
Federal Courts Improvement Act,
Pub. L. No. 104-317, § 309(c), 110 Stat.
3847 (1996) ......................................................................... 11
Omnibus Budget Reconciliation Act of
1987, Pub. L. No. 100-203, 110 Stat. 1330 ..................... 11
Pub. L. No. 96-170, 93 Stat. 1284 (1979) ............................. 6
42 Pa. Cons. Stat. § 8522(b)(2) ........................................... 42
42 C.F.R. § 431.231 .............................................................. 40
42 C.F.R. § 483.12(c) ........................................................... 40
Other Authorities
1 Theophilus Parsons, Law of Contracts
467 (6th ed. 1873) .............................................................. 28
xi
Other Authorities—Continued
Page(s)
1 William W. Story, A Treatise on the Law
of Contracts Not Under Seal 549 (4th ed.
1856) ................................................................................... 29
2 Joseph Story, Commentaries on the
Constitution of the United States § 1838
(2d ed. 1851)................................................................. 30, 31
3 Joseph Story, Commentaries on the
Constitution of the United States § 1641
(1833) .................................................................................. 20
39 Fed. Reg. 15230 (1974)................................................... 15
39 Fed. Reg. 35774 (1974)................................................... 15
46 Fed. Reg. 7408 (1981)..................................................... 15
Bouvier’s Law Dictionary (1856) ....................................... 20
Brief for United States,
Blessing v. Freestone, 520 U.S. 329
(1997) (No. 95-1441).......................................................... 21
Brief for United States,
Gonzaga Univ. v. Doe, 536 U.S. 273
(2002) (No. 01-679)............................................................ 21
Brief for United States,
Suter v. Artist M., 503 U.S. 347
(1992) (No. 90-1488).......................................................... 21
Brief for United States,
Wilder v. Virginia Hosp. Ass’n, 496 U.S.
498 (1990) (No. 88-2043)................................................... 21
Christopher C. Langdell, A Summary of
the Law of Contracts 80 (2d ed. 1880) ............................ 29
David P. Currie, The Reconstruction
Congress, 75 U. Chi. L. Rev. 383 (2008) ........................ 37
xii
Other Authorities—Continued
Page(s)
E. Allan Farnsworth, Contracts
Scholarship in the Age of the Anthology,
85 Mich. L. Rev. 1406 (1987) ..................................... 28, 29
Institute of Medicine, Committee on
Nursing Home Regulations, Improving
the Quality of Care in Nursing Homes
(1986) ...................................................................... 15, 16, 36
LEGISLATIVE MATERIALS
2 Cong. Rec. 827 (1874) ...................................................... 4
119 Cong. Rec. 39382 (1973) ............................................ 14
119 Cong. Rec. 40159 (1973) ............................................ 14
120 Cong. Rec. 5347 (1974) .............................................. 15
124 Cong. Rec. 23184 (1978) .............................................. 8
125 Cong. Rec. 19870 (1979) ............................................ 15
125 Cong. Rec. 33651 (1979) .............................................. 6
125 Cong. Rec. 36755 (1979) .............................................. 6
126 Cong. Rec. 3955 (1980) ................................................ 7
126 Cong. Rec. 25293 (1980) ............................................ 24
129 Cong. Rec. 811 (1983) ................................................ 24
132 Cong. Rec. 3180 (1986) .............................................. 15
133 Cong. Rec. 1471 (1987) .............................................. 24
136 Cong. Rec. 35640 (1990) ............................................ 22
140 Cong. Rec. 8331 (1994) .............................................. 22
140 Cong. Rec. 29533 (1994) ............................................ 11
141 Cong. Rec. 21836 (1995) ............................................ 12
Cong. Globe, 42nd Cong., 2d Sess. 383
(1872) ............................................................................... 28
H.R. 9315, 94th Cong. (1975) .......................................... 14
H.R. 9720, 95th Cong. (1978) .......................................... 14
xiii
Other Authorities—Continued
Page(s)
H.R. 9720, 95th Cong. § 1127(d)(2) (1977) ..................... 15
H.R. 9720, 95th Cong. § 1127(d)(3) (1977) ..................... 15
H.R. Conf. Rep. No. 96-897 (1980) ................................... 6
H.R. Conf. Rep. No. 100-495 (1987) ............................... 43
H.R. Conf. Rep. No. 101-922 (1990) ............................... 22
H.R. Conf. Rep. No. 103-480 (1994) ............................... 22
H.R. Conf. Rep. No. 103-761 (1994) ............................... 11
H.R. Rep. No. 95-1058 (1978)............................................ 7
H.R. Rep. No. 96-548 (1979).............................................. 6
H.R. Rep. No. 100-391 (1987).................................... 16, 43
S. 141, 98th Cong. (1983) ................................................. 24
S. 325, 100th Cong. (1987) ............................................... 24
S. 584, 97th Cong. (1981) ................................................. 24
S. 1546, 96th Cong. (1979) ......................................... 14, 15
S. 2119, 99th Cong. (1986) ......................................... 14, 15
S. 3114, 96th Cong. (1980) ............................................... 24
S. Rep. No. 96-416 (1979)............................................... 7, 8
S. Rep. No. 104-366 (1996)......................................... 11, 12
Amendments to the Medicare Program:
Hearing Before the H. Comm. on Ways
& Means, 95th Cong. 154-56 (1978) ............................ 15
Federal Implementation of OBRA 1987
Nursing Home Reform Provisions:
Hearing Before the S. Special Comm.
on Aging, 101st Cong. 11-12 (1989)............................. 14
Municipal Liability under 42 U.S.C.
1983: Hearings on S.584, S.585, and
S.990, 97th Cong. 336 (1981) ........................................ 24
Oliver W. Holmes, Jr., The Common Law
340-41 (1881) ...................................................................... 29
xiv
Other Authorities—Continued
Page(s)
Stephen A. Siegel, John Chipman Gray
and the Moral Basis of Classical Legal
Thought, 86 Iowa L. Rev. 1513 (2001) ........................... 29
Tim Evans et al., Careless, Indianapolis
Star, Mar. 11, 2020 ..................................................... 42, 44
Webster’s Dictionary (1828) .............................................. 20
William W. Story, A Treatise on the Law of
Contracts Not Under Seal 82 (1st ed.
1844) ............................................................................. 28, 29
INTRODUCTION
This case begins and ends with the statutory text.
When Congress in 42 U.S.C. § 1983 created an express
cause of action against those acting under color of state
law who deprive individuals of “any rights, privileges, or
immunities secured by the Constitution and laws” it
meant exactly what it said: suits are authorized for the
violation any “rights” “secured by” the “laws.” Those
“laws” include all the laws, including those enacted
pursuant to the spending power. If you asked “were Gorgi
Talevski’s rights against chemical restraint and wrongful
discharge and transfer secured by federal law?” The only
answer consistent with ordinary English usage would be:
“Yes.” Consistent with its plain text, for decades all three
branches of the government have understood that rights
in Spending Clause statutes are enforceable under § 1983.
Given that history, and the reliance interests at stake, if
ever there was a case for holding to a statute’s ordinary
meaning, this is that case.
The ordinary meaning of the text is so clear no one
thought to argue that Spending Clause statutes are
excluded from § 1983 until more than 120 years after its
enactment. Instead, in an unbroken consensus going back
more than 50 years, this Court, Congress, and the
Executive Branch have affirmed and reaffirmed the
opposite: that “suits in federal court under § 1983 are
proper to secure compliance with the provisions of the
Social Security Act” (of which Medicaid is Title XIX),
Edelman v. Jordan, 415 U.S. 651, 675 (1974) (Rehnquist,
J.). When parties specifically argued to this Court that the
text applied to fewer than all the laws in Maine v.
Thiboutot, 448 U.S. 1 (1980), Blessing v. Freestone, 520
U.S. 329 (1997), and Gonzaga University v. Doe, 536 U.S.
273 (2002), this Court rejected those arguments. When
the Executive Branch weighed in on the enforceability of
provisions in Spending Clause statutes in Gonzaga,
(1)
2
Blessing, Suter v. Artist M., 503 U.S. 347 (1992), and
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990), it
maintained that Spending Clause statutes can create
enforceable rights. And when Congress placed rightssecuring text in Spending Clause statutes—including the
rights at issue in this very case—it did so believing that
§ 1983 could be used to enforce those rights.
The reason is obvious: the text permits no other
reasonable interpretation. Petitioners do not argue
otherwise. Petitioners do not purport to interpret the text
of § 1983. Instead, they argue the Court should treat
§ 1983 not as a real statute, with real text, but as an
anything-goes “common law” statute subject to “ongoing”
judicial “interpretation.” Br. 9, 36. The Court should
reject that invitation. Not only because it transgresses
basic separation of powers principles but also because
Congress has four times amended or enacted statutes,
including amending § 1983 itself, based on its
understanding that the text of § 1983 dictates its meaning.
If the Court follows ordinary meaning or statutory
stare decisis in this case, petitioners lose. But even if the
Court accepts petitioners’ invitation to ignore text and
precedent and look instead to the common law of
contracts in 1874 to determine whether § 1983 applies to
Spending Clause statutes, petitioners’ argument still fails.
Under the common law in 1874, intended third-party
beneficiaries ordinarily could sue to enforce a promise for
their benefit.
Plain text also decides the second question presented.
Using traditional tools of statutory interpretation,
reflected in the factors set forth in Blessing and Gonzaga,
Congress clearly intended enforcement in federal court of
FNHRA’s rights against chemical restraint and wrongful
discharge and transfer. Congress used unambiguous
rights-securing language similar to language it used when
it enacted rights-securing statutes alongside § 1983.
3
FNHRA requires that nursing homes inform residents of
their rights. FNHRA describes its rights as “legal
rights.” And FNHRA rights “devolve upon” the legal
guardians of incompetent residents. These are individual
entitlements that § 1983 protects. Nothing in FNHRA
rebuts the presumption that these are individually
enforceable rights. In fact, FNHRA’s savings clause
carefully and specifically preserves access to § 1983.
Petitioners are wrong that determining which federal
rights are enforceable is beyond judicial ken. Br. 31-36.
Courts of appeals have capably applied this Court’s
framework, holding when appropriate that unambiguous
provisions secure federal rights enforceable under § 1983.
See DuBerry v. District of Columbia, 824 F.3d 1046, 105254 (D.C. Cir. 2016) (holding 18 U.S.C. § 926C (JA8-12)
creates federal rights under § 1983). Every court of
appeals that has considered the question has held that
FNHRA’s rights against restraint and wrongful
discharge and transfer are enforceable rights. As the
United States notes, “occasional disagreements are
unavoidable” in this area, but petitioners have not shown
those disagreements are “more widespread with respect
to Spending Clause legislation than they are with respect
to other laws.” U.S. Br. 22.
Finally, petitioners’ repeated use of “implied” in
relation to the rights at issue in this case evinces a basic
misunderstanding. The rights against chemical restraint
and wrongful discharge are not “implied” rights, Br. 8,
and suits under § 1983 are not “implied causes of action,”
Br. 23. This is not a case like Cort v. Ash, 422 U.S. 66
(1975), where no statute authorized suit. See Gonzaga, 536
U.S. at 283-84. Section 1983 creates an express cause of
action against state actors who violate federal rights, and
FNHRA’s text expressly and unambiguously creates
federal rights. The court below correctly held that
FNHRA clearly provides rights enforceable against
4
government nursing homes under § 1983, and its decision
should be affirmed.
STATEMENT
A.
Statutory Background
1. Section 1983. Since 1874, § 1983 has provided a
cause of action against any person who, under color of
state law, deprives another of “any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983; see Rev. Stat. § 1979.
a. Congress enacted § 1983 in 1871 as part of the
Reconstruction Enforcement Acts. Mitchum v. Foster,
407 U.S. 225, 238 (1972). “Section 1983 opened the federal
courts to private citizens, offering a uniquely federal
remedy against incursions under the claimed authority of
state law upon rights secured by the Constitution and
laws of the Nation.” Id. at 238-39. Thus, since 1871 “part
of ‘judicial federalism’ has been the availability of a
federal cause of action” for the violation of federal rights.
Knick v. Twp. of Scott, 139 S. Ct. 2162, 2177 n.8 (2019)
(Roberts, C.J.).
b. Congress amended § 1983 in 1874 as part of the
Revised Statutes—“a massive revision, reorganization,
and reenactment of all statutes in effect at the time.” U.S.
Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 449 (1993). While the 1871 predecessor reached
only deprivations of “rights, privileges, and immunities
secured by the Constitution of the United States,” 17 Stat.
13, the Revised Statutes expanded § 1983 to reach
deprivations of rights “secured by the Constitution and
laws,” Rev. Stat. § 1979. See 2 CONG. REC. 827-28 (1874).
At the same time that Congress expanded § 1983 to
cover violations of rights secured by federal laws,
Congress enacted four rights-securing statutes: Rev.
Stat. §§ 1977, 1978, 2004, and 2005 (JA140-43). Sections
1977 and 1978 were the original rights-securing “laws” to
5
which Congress expected § 1983 would apply. See Civil
Rights Cases, 109 U.S. 3, 16-18 (1883); see also Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 734 (1989).
Congress in the Revised Statutes also expanded the
jurisdiction of the federal courts to facilitate the
enforcement of the new § 1983 cause of action. Mitchum,
407 U.S. at 240-41, 241 n.31. Congress granted federal
district courts jurisdiction over “all suits” for the violation
of “any right secured by any law of the United States.”
Rev. Stat. § 563(12) (JA139).
In 1947, Judge Learned Hand held that § 1983 applies
to privileges secured by the “laws.” Unable to find an
earlier case “in which the right or privilege at stake was
secured by a ‘law’ of the United States,” he nevertheless
found “the language is so plain that the only question is
whether this particular ‘law’ ” permitting service on
federal juries “secured to the plaintiff a ‘privilege.’ ”
Bomar v. Keyes, 162 F.2d 136, 138-39 (2d Cir. 1947). He
held that it did. Id. at 139 (“We do not see how it can be
questioned that to prevent a person, who wishes to do so,
to serve on a federal jury, is to deny an interest which the
statute means to protect.”).
c. In 1968, this Court decided a § 1983 case alleging a
deprivation of the rights secured by the Social Security
Act. King v. Smith, 392 U.S. 309, 311-13 (1968). It did so
again in Rosado v. Wyman, 397 U.S. 397, 399-400 (1970).
And again, and again: sixteen more times over the next
decade, this Court resolved § 1983 cases asserting rights
secured by Spending Clause legislation—and in many
cases held, on the merits, that a state entity violated a
right secured by that legislation.1 As of 1974, the Court
See Dandridge v. Williams, 397 U.S. 471, 472-73 (1970) (using
§ 1983 to enforce rights secured by the Social Security Act); Lewis
v. Martin, 397 U.S. 552, 553-55 (1970) (same); Cal. Dep’t of Hum.
Res. Dev. v. Java, 402 U.S. 121, 122-24 (1971) (same); Townsend v.
1
6
considered Rosado to have decided the issue: As Justice
Rehnquist explained in Edelman, the Rosado Court had
“of course” “held that suits in federal court under § 1983
are proper to secure compliance with the provisions of the
Social Security Act on the part of participating States.”
415 U.S. at 675.
d. In December 1979, Congress enacted the first of
the two post-1874 amendments to the text of § 1983, each
to overrule a decision by this Court. In District of
Columbia v. Carter, the Court held that the original text
of § 1983 did not permit suits against District of Columbia
officials. 409 U.S. 418, 432 (1973). In response, Congress
amended § 1983 to cover the District. See Pub. L. No. 96170, 93 Stat. 1284 (1979). The House Report, the House
sponsor, and the Senate sponsor all described § 1983 as
providing a cause of action to enforce “statutory rights.”
H.R. REP. NO. 96-548 (1979); 125 CONG. REC. 33651-53
(1979); id. at 36755-56 (1979).
e. In 1980, Congress enacted the Civil Rights of
Institutionalized Persons Act (CRIPA) “to ensure that
the United States Attorney General has ‘legal standing to
enforce existing constitutional rights and Federal
statutory rights of institutionalized persons.’ ” Patsy v.
Bd. of Regents, 457 U.S. 496, 508 (1982) (quoting H.R.
REP. NO. 96-897, at 9 (1980) (Conf. Rep.)). The statute
Swank, 404 U.S. 282, 283-85 (1971) (same); Jefferson v. Hackney,
406 U.S. 535, 536-37 (1972) (same); Carleson v. Remillard, 406 U.S.
598, 599-600 (1972) (same); N.Y. Dep’t of Soc. Servs. v. Dublino, 413
U.S. 405, 406-08 (1973) (same); Hagans v. Lavine, 415 U.S. 528, 53033, 530 n.3 (1974) (same); Edelman, 415 U.S. at 653-54 (same); Shea
v. Vialpando, 416 U.S. 251, 252-53 (1974) (same); Van Lare v.
Hurley, 421 U.S. 338, 339-40 (1975) (same); Burns v. Alcala, 420
U.S. 575, 577-78 (1975) (same); Philbrook v. Glodgett, 421 U.S. 707,
708-09 (1975) (same); Ohio Bureau of Emp. Servs. v. Hodory, 431
U.S. 471, 472-73 (1977) (same); Quern v. Mandley, 436 U.S. 725, 72628 (1978) (same); Miller v. Youakim, 440 U.S. 125, 126-29 (1979)
(same).
7
arose from the Attorney General’s unsuccessful efforts in
two lawsuits brought to enforce federal rights on behalf of
institutionalized persons. H.R. REP. NO. 95-1058, at 7-11
(1978); S. REP. NO. 96-416, at 16-18 (1979) (describing
Solomon and Mattson decisions). Each case was
dismissed because the Attorney General lacked a cause of
action. Id.
In response, Congress enacted CRIPA, its text
mirroring that of § 1983, giving the Attorney General a
cause of action, to enforce the rights of institutionalized
persons against state institutions, 42 U.S.C. § 1997a(a),
including government nursing facilities, § 1997(1)(B)(v);
see also S. REP. NO. 96-416 at 29 (1979) (describing
§ 1997a’s limitations as “parallel” to those “applied to
actions brought under 42 U.S.C. 1983 and similar rights
enforcement statutes”); 126 CONG. REC. 3955 (1980)
(Indiana Attorney General objecting to CRIPA as “not
needed since [it] purport[s] to provide relief where
numerous remedies already exist,” including suits under
§ 1983). Under CRIPA, the Attorney General may initiate
a civil action where a state or political subdivision is
systematically subjecting persons in an institution “to
egregious or flagrant conditions which deprive such
persons of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States
causing such persons to suffer grievous harm.” 42 U.S.C.
§ 1997a(a) (JA132).
Congress understood that CRIPA’s text, like § 1983’s
text, would permit the enforcement of federal rights
against government nursing homes. See § 1997(1)(A); see
also § 1997(2) (JA130-31). Congress also understood that
CRIPA’s text would authorize suits for violations of rights
in Spending Clause statutes. See H.R. REP. NO. 95-1058,
at 12 (1978) (explaining that authority for CRIPA rests in
part on the “spending power”). Indeed, there was
extensive debate over whether to strike the phrase “or
8
laws” from § 1997a, which would have limited CRIPA to
constitutional rights. Representative Wiggins, the
proponent of that limiting amendment, found it
“unmistakably clear that the Attorney General intends to
utilize various statutes, some of which are financial aid
programs enacted by Congress, as the basis for claiming
that individual inmates or patients are given enforceable
rights under those statutes.” 124 CONG. REC. 23184
(1978). But opponents of the amendment viewed that sort
of statutory enforcement as crucial, citing the Justice
Department’s opinion that “if the phrase ‘or laws’ were
removed from the bill,” actions involving “nursing homes”
and facilities for the disabled—which otherwise could be
brought to enforce rights conferred by the Rehabilitation
Act, the Developmentally Disabled Assistance and Bill of
Rights Act, the Special Health Revenue Sharing Act, and
the Social Security Act—“would be drastically affected.”
Id. at 23185-86. Congress rejected the amendment, id. at
23186, leaving CRIPA capable of enforcing “Federal
statutory rights of institutionalized persons,” S. REP. NO.
96-416, at 3 (1979).
f. In 1980, in Maine v. Thiboutot, 448 U.S. 1 (1980), a
case arising under the Social Security Act, the Court
specifically considered “whether § 1983 encompasses
claims based on purely statutory violations of federal law”
and held that it does. Id. at 3-4. The Court held that the
“plain language of § 1983,” coupled with the Court’s
“consistent treatment of that provision” (applying it to
Social Security Act claims) foreclosed the argument that
§ 1983 applied only to some of the laws. Id. at 6-8. Wrote
the Court: “[w]here the plain language, supported by
consistent judicial interpretation, is as strong as it is here,
ordinarily ‘it is not necessary to look beyond the words of
the statute.’ ” Id. at 6 n.4 (quoting TVA v. Hill, 437 U.S.
153, 184 n.29 (1978)). The Court also found it “important”
9
that Congress had “remained quiet in the face of our many
pronouncements on the scope of § 1983.” Id. at 8.
g. In 1981, in Pennhurst State School and Hospital v.
Halderman, the Court held that § 111 of the
Developmentally Disabled Assistance and Bill of Rights
Act of 1975, 42 U.S.C. § 6010 (1976 ed. & Supp. III), did
not create rights enforceable under § 1983. 451 U.S. 1, 19
(1981) (Rehnquist, J.). Section 6010, the “bill of rights”
provision (JA135-37), declared that Congress had made
certain “findings respecting the rights of persons with
developmental disabilities,” namely, that such persons
have a right to “appropriate treatment” in the least
restrictive environment and that federal and state
governments have an obligation to ensure that
institutions failing to provide “appropriate treatment” do
not receive federal funds. Id. at 13; see also id. at 19, 2223.
The Court did not doubt that Spending Clause
statutes could create federal rights enforceable under
§ 1983. See Suter v. Artist M., 503 U.S. 347, 356 (1992)
(Rehnquist, C.J.) (describing Pennhurst). Rather, the
Court concluded that to determine whether a Spending
Clause statute creates rights under § 1983, “[w]e must
carefully inquire … whether Congress … imposed an
obligation … to spend state money to fund certain rights
as a condition of receiving federal moneys under the Act
or whether it spoke merely in precatory terms.”
Pennhurst, 451 U.S. at 18. Applying those principles, the
Court concluded that the context of the statute and its
legislative history revealed that Congress intended
neither to create new substantive rights nor to require
states to recognize such rights. Id. at 22-24. The Court
examined the language of the provision and determined
that a general statement of “findings” was “too thin a reed
to support” a creation of rights and obligations. Id. at 19.
Moreover, because compliance with the provision was not
10
a condition of receiving federal funding, the Court
reasoned that “the provisions of § 6010 were intended to
be hortatory, not mandatory.” Id. at 24.
In 1987, in Wright v. City of Roanoke Redevelopment
& Housing Authority, the Court found that the Brooke
Amendment to the Housing Act of 1937, 42 U.S.C. § 1437a
(1982 ed. & Supp. III), and its implementing regulations
created rights enforceable under § 1983. 479 U.S. 418,
419-20 (1987). The Brooke Amendment imposed a rent
ceiling for low-income tenants in public housing projects.
Id. HUD regulations defined rent to include “ ‘a
reasonable amount for [use of] utilities,’ ” and further
defined how that term would be measured. Id. at 420-21,
420 n.3. The Court reasoned that the statute and the
regulations created enforceable rights because they were
“mandatory limitation[s] focusing on the individual family
and its income.” Id. at 430-32.
In 1990, in Wilder v. Virginia Hospital Association,
the Court allowed a § 1983 suit brought by health care
providers to enforce a reimbursement provision of the
Medicaid Act, on the ground that the provision, much like
the rent-ceiling provision in Wright, explicitly conferred
specific entitlements upon the plaintiffs. 496 U.S. 498, 52224 (1990). Congress left no doubt of its intent for private
enforcement, the Court said, because the provision
required states to pay an “objective” monetary
entitlement to individual health care providers, with no
sufficient administrative means of enforcing the
requirement against states that failed to comply. Id.
In 1992, in Suter v. Artist M., the Court held that
Title IV-E of the Social Security Act did not provide the
plaintiffs with an enforceable right under § 1983. 503 U.S.
347, 350 (1992). Section 671(a)(15) of the Act required that
to obtain federal reimbursement, a state must have a plan
that “provide[d] that, in each case, reasonable efforts will
be made (A) prior to the placement of a child in foster
11
care, to prevent or eliminate the need for removal of the
child from his home, and (B) to make it possible for the
child to return to his home.” Id. at 351; see also id. at 358.
But the Court held that the condition of federal funding
was that the state have a plan approved by the HHS
Secretary; carrying out the plan was a step removed from
that obligation. Id. at 358 (quoting § 671(a)). Thus, the
Court held that “[c]areful examination of the language ...
does not unambiguously confer an enforceable right upon
the Act’s beneficiaries” because “[t]he term ‘reasonable
efforts’ in this context is at least as plausibly read to
impose only a rather generalized duty on the State, to be
enforced not by private individuals, but by the Secretary
in the manner [of reducing or eliminating payments].” Id.
at 363.
h. Congress responded to Suter in 1994 by enacting
42 U.S.C. §§ 1320a-2, 1320a-10 to overrule some of the
reasoning in Suter (JA37-38). Congress provided that
“[i]n an action brought to enforce a provision of this
chapter, such provision is not to be deemed unenforceable
because of its inclusion in a section of this chapter
requiring a State plan or specifying the required contents
of a State plan.” 42 U.S.C. § 1320a-2 (referencing Suter by
name); § 1320a-10 (same); see H.R. REP. NO. 103-761
(1994) (Conf. Rep.); 140 CONG. REC. 29533 (1994).
i. In 1996, Congress enacted the second of the two
post-1874 amendments to the text of § 1983, again to
overrule a decision by the Court. In Pulliam v. Allen, the
Court had weakened immunity protections for state
judges, holding that judicial immunity is not a bar to
prospective injunctive relief against a judicial officer. 466
U.S. 522, 541-43 (1984). Congress responded with the
Federal Courts Improvement Act (FCIA), Pub. L. No.
104-317, § 309(c), 110 Stat. 3847, 3853 (1996), amending
the text of § 1983 to “restore[] the doctrine of judicial
immunity to the status it occupied prior to Pulliam.” S.
12
REP. NO. 104-366, at 36-37 (1996); 141 CONG. REC. 21836
(1995).
j. In 1997, in Blessing v. Freestone, the Court held
that a provision of Title IV-D of the Social Security Act
did not create rights enforceable under § 1983. Five
Arizona mothers invoked § 1983 against state officials on
grounds that state child-welfare agencies consistently
failed to meet the Act’s requirement to “substantially
comply” with Title IV-D’s requirements designed to
ensure timely payment of child support. 520 U.S. 329, 337
(1997). The Court held that the requirement to
“substantially comply” with Title IV-D’s requirements did
not create individual rights. Id. at 343. “Far from creating
an individual entitlement to services, the standard is
simply a yardstick for the Secretary to measure the
systemwide performance of a State’s Title IV-D
program.” Id. Because the provision focused on “the
aggregate services provided by the State,” rather than
“the needs of any particular person,” it conferred no
individual rights and thus could not be enforced by § 1983.
Id. The Court emphasized: “[T]o seek redress through
§ 1983, ... a plaintiff must assert the violation of a federal
right, not merely a violation of federal law.” Id. at 340.
k. The last time the Court addressed statutory rights
under § 1983 was in 2002 in Gonzaga University v. Doe,
536 U.S. 273 (2002).2 In Gonzaga, the Court held that the
Family Educational Rights and Privacy Act of 1974
(FERPA), 20 U.S.C. § 1232g (JA13-30), a Spending
Clause statute that prohibits the federal funding of
educational institutions that have a policy or practice of
releasing education records to unauthorized persons, did
The Court mentioned the issue in passing in Armstrong v.
Exceptional Child Center, Inc. but only to note the plaintiffs “[did]
not assert a § 1983 action.” 575 U.S. 320, 330 n.* (2015). Part IV of
Armstrong is not about § 1983. Id. at 331-32.
2
13
not create enforceable rights under § 1983. 536 U.S. at
276; see id. at 278-79. The Court held that only “an
unambiguously conferred right” will “support a cause of
action brought under § 1983.” Id. at 283. Accordingly,
“where the text and structure of a statute provide no
indication that Congress intends to create new individual
rights, there is no basis for a private suit … under § 1983.”
Id. at 286. Applying those principles, there was “no
question that FERPA’s nondisclosure provisions fail to
confer enforceable rights.” Id. at 287. FERPA’s
requirements are “two steps removed from the interests
of individual students and parents” because they (1) speak
to the Secretary of Education, directing the Secretary to
withhold funds from non-compliant institutions, and (2)
prohibit non-compliant policies and practices not
individual instances of disclosure. Id. at 287-90. The Court
found its conclusion “buttressed” by the fact that
Congress created robust administrative enforcement
mechanisms, including a charge to the Secretary of
Education to “deal with violations” of the Act. Id. at 289
(quoting with emphasis § 1232g(f)). That “squarely
distinguish[ed]” the case from Wright and Wilder “where
an aggrieved individual lacked any federal review
mechanism.” Id. at 290.
2. FNHRA. Congress enacted FNHRA as part of the
Omnibus Budget Reconciliation Act of 1987, Pub. L. No.
100-203, 101 Stat. 1330. Congress made protecting the
rights set forth in a comprehensive Residents’ Bill of
Rights a condition of participation in the Medicaid and
Medicare programs. 42 U.S.C. §§ 1395i-3(c), 1396r(c).3
The Bill of Rights requires that nursing homes that accept
federal funds “must protect and promote the rights of
each resident.” § 1396r(c)(1)(A). Those rights include
Sections 1395i-3 and 1396r are materially identical. Section
1396r is reproduced at JA39-128.
3
14
“[t]he right to be free from … any physical or chemical
restraints imposed for purposes of discipline or
convenience and not required to treat the resident’s
medical symptoms.” § 1396r(c)(1)(A)(ii). They also cover
certain “[t]ransfer and discharge rights,” which require
that nursing homes “must permit each resident to remain
in the facility and must not transfer or discharge the
resident from the facility” except for specified reasons,
such as to protect the resident’s welfare or others’ safety.
§ 1396r(c)(2)(A). FNHRA describes these rights as “legal
rights” and provides that a nursing home “must” “inform
each resident, orally and in writing at the time of
admission to the facility” of these rights. § 1396r(c)(1)(B).
FNHRA also provides that “[i]n the case of a resident
adjudged incompetent under the laws of a State, the
rights of the resident under this subchapter shall devolve
upon, and … be exercised by, the person appointed under
State law to act on the resident’s behalf.” § 1396r(c)(1)(C).
The effort to enact a federal bill of rights protecting
nursing-home patients traces back to December 1973 and
Representative (later Senator) William S. Cohen’s
introduction of H.R. 11759, “providing for a Federal
Nursing Home Patients bill of rights.” 119 CONG. REC.
39382 (1973); see also id. at 40159. Congressman Cohen
reintroduced legislation that would codify the Patient’s
Bill of Rights in the House in 1975, 1978, and in the Senate
in 1979, and 1985. See Federal Implementation of OBRA
1987 Nursing Home Reform Provisions: Hearing Before
the S. Special Comm. on Aging, 101st Cong. 11-12 (1989);
H.R. 9315, 94th Cong. (1975), H.R. 9720, 95th Cong.
(1978), S. 1546, 96th Cong. (1979), S. 2119, 99th Cong.
(1986).
The legislative process that led to enactment of the
nursing-home bill of rights showed acute focus on the
need for judicial enforcement. Earlier bills provided a
cause of action in federal court for damages and attorney’s
15
fees against nursing homes for violations of the Patient’s
Bill of Rights. See H.R. 9720, 95th Cong. §§ 1127(d)(2)-(3)
(1977); S. 1546, 96th Cong. §§ 7(a)-(b) (1979); S. 2119, 99th
Cong. §§ 7(a)-(c) (1986). As nursing-home-reform
advocates explained in a 1978 hearing, and as the
legislative sponsor, Congressmen Cohen, explained in
numerous statements in Congress, a damages remedy
was necessary to ensure that nursing homes adequately
protected patients’ rights. Amendments to the Medicare
Program: Hearing Before the H. Comm. on Ways &
Means, 95th Cong. 154-56, 161-64 (1978); 125 CONG. REC.
19870 (1979); 132 CONG. REC. 3180 (1986).
Meanwhile, regulatory implementation of a Patients’
Bill of Rights proceeded on a parallel track. In 1974, in
response to Congressman Cohen’s initial bills, HHS’s
predecessor agency, the Department of Health,
Education, and Welfare, promulgated a “Bill of Rights”
for nursing-home patients in the Medicaid program, the
text of which basically mirrored the rights set forth in the
initial bill. 39 Fed. Reg. 15230 (1974); id. at 35774; 120
CONG. REC. 5347-48 (1974). In January 1981, on the eve of
this Court’s decision in Pennhurst, the outgoing HHS
Secretary elevated the rights from a standard to a
condition of participation in the Medicaid program, but
the new Secretary promptly rescinded the regulation.
Institute of Medicine, Committee on Nursing Home
Regulations, Improving the Quality of Care in Nursing
Homes 15 (1986) (IOM Report); see 46 Fed. Reg. 7408
(1981). For the next three years, the administration and
Congress remained at an impasse over whether and how
to revise the bill of rights. IOM Report 247-48.
In 1983, the administration and Congress agreed to
postpone virtually all changes to the regulations until a
committee appointed by the Institute of Medicine (IOM)
studied the issues and reported its recommendations. Id.
at 248. In 1986, the IOM committee issued its report.
16
Among the report’s central recommendations was that
“Residents’ rights should be raised from a standard to a
condition of participation.” Id. at 27, 81.
Following the IOM Report, Congress and the
President enacted FNHRA. FNHRA codified resident’s
rights into federal law and elevated residents’ rights to a
condition of participation in the Medicare and Medicaid
programs, as the IOM committee recommended. H.R.
REP. NO. 100-391, at 452-53, 457-58 (1987). FNHRA did
not include a freestanding private right of action but did
include a savings clause providing that FNHRA’s
remedies “are in addition to those otherwise available
under State or Federal law and shall not be construed as
limiting such other remedies, including any remedy
available to an individual at common law.” 42 U.S.C.
§ 1396r(h)(8).
B.
Factual Background
In the final years of his life, Gorgi Talevski began to
suffer from dementia. His family members devoted
themselves to his care until January 2016, when it became
clear he would need professional care for his safety.
Pet. App. 77a. At that point, he began living at VCR, a
government nursing facility near his family home in
Indiana. Id. When he entered VCR, he was able to walk,
communicate in English, feed himself, and recognize his
family. Id.
Shortly after he moved to VCR, however, Gorgi’s
daughter
observed
“sudden[]
and
dramatic[]”
deterioration in his cognitive and physical abilities. Id. at
78a. He lost the ability to feed himself or communicate in
English, instead speaking only in his native Macedonian.
Id. During this time, his daughters frequently arrived to
find that their father had soiled himself, leading to a
“severe rash on his buttocks.” Id. On one visit, Gorgi’s
family found that he could not get out of bed. Id.
17
VCR was abusing Gorgi. They were using drugs to
restrain him, including six powerful psychotropics. Id. His
family hired a private neurologist, who facilitated the
removal of the drugs from his treatment. Id. at 78a-79a.
Once he was off the drugs, Gorgi’s condition improved,
and he was able to feed himself again. Id. at 79a.
Gorgi’s family filed a formal complaint against VCR.
Id. Following that complaint and the tapering of the
drugs, VCR started repeatedly transferring Gorgi to a
distant neuropsychiatric hospital an hour and a half away,
three counties over, and in a different time zone. Id. at
18a, 79a. Each time he returned from the hospital, VCR
would transfer him right back in a matter of days. Id. at
79a. During his final transfer—over the holidays in
December 2016—VCR transferred him without his teeth,
causing his gums to degrade to the point where he could
not be fitted for new dentures. Id. at 80a.
After the repeated transfers in late 2016, VCR
refused Gorgi’s readmittance to the facility. Instead, it
attempted to transfer him—through an involuntarily
discharge—to a dementia facility in Indianapolis, nearly
three hours away from his family. Id. at 18a, 79a. His
family filed an appeal of the unlawful transfer with the
Indiana State Department of Health. Id.at 80a. A state
administrative law judge held that VCR had violated
Gorgi’s discharge rights. Id. But the only relief available
was readmittance to VCR. Id.at 81a. His family, fearful
that VCR would retaliate against him, or continue to
abuse him, moved Gorgi to another nursing home. Id.
Through his wife, Ivanka Talevski, Gorgi Talevski
sued VCR under 42 U.S.C. § 1983 for violations of
FNHRA. Id. at 2a-3a. The district court dismissed the
action for failure to state a claim, finding that FNHRA
does not provide rights redressable under § 1983. Id. at
3a. The Seventh Circuit reversed. This Court granted
certiorari.
18
SUMMARY OF ARGUMENT
I. Section 1983 expressly grants a cause of action to
protect “rights . . . secured by the Constitution and laws.”
Spending Clause statutes, like other laws, can “secure”
“rights” for purposes of § 1983. Section 1983’s text,
context, and purpose all dictate that conclusion, as does
congressional ratification and statutory stare decisis. The
text and ratified interpretation of § 1983 should determine
its meaning, not the common law of contract in the 1870s.
Petitioners do not dispute that they cannot succeed if the
Court follows the statute’s ordinary meaning. But even if
contract law overcomes the text and this Court’s
precedent, the prevailing rule in this country in the early
1870s was that third parties could sue to enforce contracts
for their benefit.
II. Congress clearly intended FNHRA’s rights
against chemical restraint and involuntary discharge and
transfer would be individually enforceable rights that
§ 1983 would protect. FNHRA’s text, structure, history,
and purpose place that conclusion beyond doubt.
It is hard to imagine a more unambiguous rightscreating statute than FNHRA. Residents must be
notified repeatedly of these rights, the rights are part of a
“bill of rights,” provided orally and in writing to each
resident (often posted on the wall of the facility, as they
were at VCR), the statute repeatedly refers to them as
“rights,” the rights are specifically described as “legal
rights,” and the statute provides that these rights pass to
a resident’s guardian if he becomes incompetent.
Protecting these rights is a condition of participation in
the Medicaid program and the rights are conferred in
mandatory language, requiring that nursing homes
“must” protect them.
And these rights are fundamental basic rights, like
rights to bodily autonomy and against surprise eviction.
Nursing-home residents are among the most vulnerable
19
individuals in our society, and Congress recognized they
require significant legal protections to protect them
against abuse and neglect.
The statute’s enforcement scheme dispels any doubt
that FNHRA’s rights are enforceable under § 1983.
FNHRA offers no path to federal judicial review for
rights violations and no federal accountability mechanism
for individual rights violations at all; instead, in its savings
clause, it explicitly preserves access to other federal
remedies outside FNHRA. Section 1983 is among the
federal remedies to which FNHRA preserves access.
At bottom, FNHRA was enacted to secure certain
rights by law and make their protection binding
conditions of participation in the Medicaid program.
Before that, those rights had for nearly a decade been
secured only by regulation. There would have been no
reason to enact FNHRA if regulatory enforcement was
adequate, because there already were regulations.
Congress wanted more. It wanted to confer enforceable
rights on nursing-home residents to protect them against
neglect and abuse.
ARGUMENT
I.
FNHRA’S RIGHTS AGAINST CHEMICAL RESTRAINT
AND INVOLUNTARY DISCHARGE AND TRANSFER
ARE ENFORCEABLE UNDER § 1983
A.
Rights protected by Spending Clause statutes are
“rights” “secured by” the “laws”
Section 1983 provides an express cause of action for
the deprivation of rights secured by Spending Clause
statutes.
1.a. Text. The starting point is the text. Section 1983
permits suit against any person who, under color of state
law, deprives another of “any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. The phrase “secured by the laws,” had a
20
well-recognized ordinary meaning at the time of § 1983’s
enactment—it meant protected by law. See Hague v.
Comm. Indus. Org., 307 U.S. 496, 526-27 (1939) (opinion
of Stone, J.) (explaining that the Court recognized a
decade after its enactment that § 1983 uses “secured” by
the Constitution to mean “protected” by the
Constitution).
Indeed, at the time of § 1983’s enactment, leading
dictionaries defined “secure” as “[t]o make certain; to put
beyond hazard,” Webster’s Dictionary (1828), and “to
secure” as “to protect, insure, or save a right,” Bouvier’s
Law Dictionary (1856). For nearly a century preceding
§ 1983’s enactment, this Court used the word in the same
way. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197-98
(1824) (“This principle … is secured by the tenth
amendment”); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390
(1798) (“The prohibitions … were inserted [in the
Constitution] to secure private rights”); see also, e.g.,
Harrison v. Sterry, 9 U.S. (5 Cranch) 289, 299 (1809)
(similar usage). The same consistent usage appeared
across the nineteenth century in treatises, court cases,
speeches, legislative debates, and periodicals. “To secure”
a right by law was to protect it by law, and that
formulation was used repeatedly. See, e.g., 3 Joseph Story,
Commentaries on the Constitution of the United States
§ 1641, at 508 (1833).
That more than 120 years elapsed before anyone
conceived of the possibility that § 1983 excludes rights in
Spending Clause legislation is powerful evidence that the
phrase “secured by the … laws” carries its ordinary
meaning in § 1983. Eighteen times between 1968 and
1980, this Court decided cases involving the enforcement
of § 1983 in the Social Security Act without anyone
mentioning the novel Spending Clause exclusion
petitioners now advance. Did the Court in all of those
cases just miss that obvious answer—and overlook the
21
fact that § 1983 does not apply to Spending Clause
legislation? That seems implausible. See Bostock v.
Clayton Cnty., 140 S. Ct. 1731, 1833 (2020) (Kavanaugh,
J., dissenting); cf. Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 576 U.S. 787, 824-25 (2015)
(Roberts, C.J., dissenting). The reason is obvious: If you
asked an ordinary English speaker whether the rights in
this case were “secured by the laws” the answer would
quite clearly be yes. Petitioners have offered no other way
to read that text because none is available.
By its terms, § 1983 applies to any right protected by
a federal law. And there is no textual or constitutional
basis for treating Spending Clause legislation differently
from legislation enacted under any other power. Indeed,
petitioners concede that the Spending Clause authorizes
Congress to create causes of action, notwithstanding the
“contract[ual]” nature of Spending Clause legislation.
Br.25. Thus, rights in Spending Clause statutes are
enforceable under § 1983 for the same reason rights in
other statutes are enforceable: because they are
protected by federal law.
b. Consistent Understanding. The meaning of the
statute is so clear that all three branches of the federal
government have treated it as settled for decades. In
addition to this Court, which has three times rebuffed the
argument that § 1983 applies to fewer than all the laws (in
Thiboutot, Blessing, and Gonzaga), the Executive Branch
has for more than thirty years consistently maintained
that Spending Clause statutes can create federal rights as
long as Congress showed a clear intention that the rights
are enforceable.4 And Congress has relied on the
See, e.g., U.S. Br. 10-24; U.S. Br. at 18, Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) (No. 01-679); U.S. Br. at 16-17, Blessing v.
Freestone, 520 U.S. 329 (1997) (No. 95-1441); U.S. Br. at 8, Suter v.
Artist M., 503 U.S. 347 (1992) (No. 90-1488); U.S. Br. at 14-15,
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990) (No. 88-2043).
4
22
enforceability of Spending Clause statutes when placing
federal rights in spending statutes since Rosado.5
2.a Ratification. Congress has also ratified this
Court’s interpretation of § 1983 as applying to rights in
Spending Clause legislation. Across four separate acts,
Congress not only amended § 1983 in the face of decisions
holding Spending Clause rights enforceable; it enacted
new legislation to overrule decisions that impeded the
enforcement of Spending Clause rights.
Congress ratified this Court’s interpretation in 1994,
when it enacted a pair of laws to overrule part of this
Court’s decision in Suter dealing with the enforceability
of a category of Spending Clause statutes. See pp. 10-11,
supra. By overriding part of Suter, Congress expressed
that there are enforceable Spending Clause statutes that
courts following Suter would have incorrectly found
unenforceable. See 42 U.S.C. §§ 1320a-2, 1320a-10.
Congress’s Suter override is more than ratification—it is
super ratification. See Texas Dep’t of Hous. & Cmty. Affs.
v. Inclusive Communities Project, Inc., 576 U.S. 519, 53738 (2015). If rights in Spending Clause legislation were
unenforceable all along, Congress’s Suter override was
meaningless. That would contravene this Court’s
consistent recognition that, in matters of statutory
interpretation, the Court must give effect, if possible, to
every part of every statute. See Biden v. Texas, 142 S. Ct.
2528, 2539 (2022). In fact, the point is stronger: The
principle that “Congress” does not enact “self-defeating
See, e.g., H.R. REP. NO. 101-922, at 420 (1990) (Conf. Rep.)
(explaining committee’s intent “that the rights created by” the
Cranston-Gonzalez National Affordable Housing Act of 1990 “be
enforceable under 42 U.S.C. Section 1983”); 136 CONG. REC. 35640
(1990) (same); H.R. REP. NO. 103-480, at 64 (1994) (Conf. Rep.)
(discussing intended application of § 1983 to the rights in the Schoolto-Work Opportunities Act of 1994); 140 CONG. REC. 8331 (1994)
(same).
5
23
statute[s]” is stronger than the preference for giving
effect to every word and clause. Quarles v. United States,
139 S. Ct. 1872, 1879 (2019). Yet, on petitioners’ view, the
whole legislative override was a nullity.
Congress also ratified this Court’s view of § 1983 in the
more conventional way by twice amending the statute to
overrule decisions by this Court: first in 1979 and then
again 1996. Inclusive Communities, 576 U.S. at 535-37.
By the time Congress amended the statute in 1979, this
Court had already decided eighteen cases involving the
enforceability of rights secured by the Social Security Act
under § 1983. See p. 5-6 & n.1, supra. Some of those cases
held that state entities had violated rights secured by the
Social Security Act.6 By 1974, Justice Rehnquist, writing
for the Court in Edelman, found the question beyond
dispute: the Court “of course” had “held that suits in
federal court under § 1983 are proper to secure
compliance with the provisions of the Social Security Act
on the part of participating States.” 415 U.S. at 675 (citing
Rosado, 397 U.S. at 399-400). And by the time Congress
amended the statute again in 1996, this Court had decided
Thiboutot, Wright, Wilder, and Blessing. Yet, both times
it amended § 1983 to overrule other decisions interpreting
§ 1983, Congress left unchanged the text of § 1983
permitting the enforcement of rights in Spending Clause
statutes.
This history is especially significant because Congress
was aware of this Court’s holdings that § 1983 applies to
Spending Clause legislation and expressly considered
whether to overrule it, but did not. Beginning just months
after this Court’s decision in Thiboutot, Senator Orrin
See Java, 402 U.S. at 122-24; Townsend, 404 U.S. at 283-85;
Carleson, 406 U.S. at 599-600, 604; Shea, 416 U.S. at 252-53; Van
Lare, 421 U.S. at 339-40; Philbrook, 421 U.S. at 708-09; Youakim,
440 U.S. at 126-29.
6
24
Hatch repeatedly introduced legislation that would have
amended § 1983 to limit the enforceable “laws.” S.3114,
96th Cong. (1980); see also S.584, 97th Cong. (1981). This
limitation was necessary because, under Thiboutot, “a
cause of action under section 1983 may now rest on the
violation or deprivation of any rights secured by any
statute.” 126 CONG. REC. 25293 (1980) (emphasis added).
Of particular concern were rights secured by “federal
grant statutes” like those providing “unemployment,
Medicaid, school lunch subsidies,” or “food stamps and
other welfare benefits.” Municipal Liability under 42
U.S.C. 1983: Hearings on S.584, S.585, and S.990, 97th
Cong. 336 (1981); see 126 CONG. REC. 25293-94 (1980).
Courts would be open to “senior citizen torts.” Municipal
Liability, at 336. Opponents of the bill countered that
these sorts of suits were in § 1983’s heartland. Id. at 6263. The bill never passed, despite reintroduction in 1983
and 1987. See S.141, 98th Cong. (1983); 129 CONG. REC.
811 (1983); S.325, 100th Cong. (1987); 133 CONG. REC.
1471 (1987).
Congress also ratified this Court’s interpretation of
§ 1983 still another way: by enacting CRIPA. CRIPA was
modeled on § 1983, using nearly identical language. The
critical words “rights … secured by the … laws” appear
in both statutes. See JA129, JA132. If petitioners are
correct that those words do not include Spending Clause
statutes in § 1983, then they would not include Spending
Clause statutes in CRIPA either because CRIPA took
them from § 1983. See Sekhar v. United States, 570 U.S.
729, 733 (2013) (“[I]f a word is obviously transplanted
from another legal source, … it brings the old soil with
it.”). But Congress enacted CRIPA with the express
understanding that CRIPA would apply against
government nursing homes and that it would apply to
rights in Spending Clause statutes. See pp. 6-8, supra; see
also Bragdon v. Abbott, 524 U.S. 624, 645 (1998). It would
25
be bizarre to give § 1983 and CRIPA different meanings
solely because one was enacted in 1874 and the other in
1980. See Inclusive Communities, 576 U.S. at 534-35.
b. Stare Decisis. Finally, in this case, stare decisis is
“supercharged” because it involves statutory precedent.
Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015).
Adherence to precedent is always extremely important.
See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,
798 (2014); Payne v. Tennessee, 501 U.S. 808, 827 (1991).
Even when stare decisis is at its lowest ebb, overruling
takes “special justification”—more than the “argument
that the precedent was wrongly decided.” Halliburton Co.
v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014).
Here stare decisis is at its pinnacle. Kimble, 576 U.S.
at 456; Ramos v. Louisiana, 140 S. Ct. 1390, 1413 (2020)
(Kavanaugh, J., concurring) (“strict”). Precedent’s special
force in this context derives from the separation of powers
and principles of institutional competence. See, e.g., Neal
v. United States, 516 U.S. 284, 295-96 (1996). Congress
can always amend a statute to override this Court’s
interpretation. Id. at 295. Conversely, when this Court
overrules a statutory precedent, it gives Congress “less
reason to exercise its responsibility to correct statutes
that are thought to be unwise or unfair.” Id. at 295-96.
Section 1983 is a statute that “Congress remains free to
alter,” Patterson v. McLean Credit Union, 491 U.S. 164,
172-73 (1989), and the same supercharged stare decisis
applies to § 1983 that applies in other statutory cases. See
Oklahoma City v. Tuttle, 471 U.S. 808, 818 n.5 (1985)
(Rehnquist, J., plurality op.); see also Patsy, 457 U.S. at
517 (White, J., concurring in part); Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 714-19 (1978) (Rehnquist, J.,
dissenting).
Stare decisis carries even more force here than in a
run-of-the-mine statutory case, for three reasons. First,
ruling for petitioners would require the Court to overrule
26
not a single case, but a “long line of precedents”—each
one reaffirming the rest and going back 50 years or more.
See Bay Mills, 572 U.S. at 798. This Court has decided
dozens of cases involving Spending Clause statutes, and
lower courts have done so hundreds (if not thousands) of
times. Section 1983 is integrated into the enforcement
scheme of nearly every cooperative federalism program
in the United States. Second, because that is so, this would
be the rare overruling that introduces so much instability
into so many areas, all in one blow, that it warrants
heightened caution. Third, this precedent has stood intact
for a very long time—over half a century—and Congress
has not overruled it. Instead Congress has permitted suits
under Spending Clause statutes, even after Members of
this Court began to raise questions about whether § 1983
should extend to Spending Clause legislation. See
Blessing, 520 U.S. at 349-50 (Scalia, J., concurring). Given
all of that history—on top of statutory stare decisis—
“[o]nly the most compelling circumstances can justify”
now reversing course. Monell, 436 U.S. 714-19
(Rehnquist, J., dissenting). There are no such compelling
circumstances in this case.7 See U.S. Br. 21-24.
3. To overcome the text, context, purpose, and history
of § 1983, petitioners offer several counterarguments.
None is persuasive.
a. Petitioners contend that, regardless of the
statutory text, Congress implicitly intended to exclude
rights protected by Spending Clause statutes from § 1983.
The fundamental problem with petitioners’ implicit intent
argument is that the text of § 1983 says no such thing.
“Congress expresses its intentions through statutory text
Petitioners argue that § 1983 is a “common law” statute entitled
to reduced stare decisis protection. Br. 28, 36-38. Petitioners
identify only one statute the Court has ever treated that way: the
Sherman Act. Br. 36. That law is textually and historically unique.
There is no basis to treat § 1983 similarly here.
7
27
passed by both Houses and signed by the President (or
passed over a Presidential veto).” Oklahoma v. CastroHuerta, 142 S. Ct. 2486, 2496 (2022). “As this Court has
repeatedly stated, the text of a law controls over
purported legislative intentions unmoored from any
statutory text.” Id. “The Court may not replace the actual
text with speculation as to Congress’ intent.” Id. “Rather,
the Court will presume more modestly” that “the
legislature says what it means and means what it says.”
Id.; see also id. at 2497 (collecting cases); Yellen v.
Confederated Tribes of Chehalis Rsrv., 141 S. Ct. 2434,
2443-44 (2021).
To buttress their implicit intent argument, petitioners
seize on this Court’s cases holding that the Congress that
enacted § 1983 would have expected it to be “construed in
the light of common-law principles that were well-settled
at the time of its enactment.” Br. 12 (quoting Kalina v.
Fletcher, 522 U.S. 118, 123 (1997)). They further claim
that “[i]n the context of Spending Clause legislation in
particular, it is common-law contract principles that
control.” Br. 12.
But filling gaps in a statute is fundamentally different
from interpreting text. None of the cases petitioners cite,
which deal with background tort principles like
immunities not expressly addressed in § 1983, used the
common law to determine which rights Congress was
referring to when it wrote the words “any rights,
privileges, or immunities secured by the Constitution and
laws” in § 1983. See Br. 11-13. There is no reason to think
that the Congress that wrote the phrase “rights …
secured by the … laws” in § 1983 believed that phrase
would mean something other than what it ordinarily
means. And there is no evidence that the Congress that
enacted that text believed it would be construed according
to the common law of contract. Given the absence of
modern Spending Clause programs in 1874, Congress
28
likely had no specific view of how § 1983 would interact
with Spending Clause legislation. “And this Court does
not rewrite a constitutionally valid statutory text under
the banner of speculation about what Congress might
have done had it faced a question that ... it never faced.”
Castro-Huerta, 142 S. Ct. at 2497.
b. Petitioners are also wrong about the history of
third-party beneficiary enforcement.8 Petitioners must
show that it was “well-settled at the time of [§ 1983’s]
enactment” that intended third-party beneficiaries could
not sue to enforce a contract. Br. 12 (quoting Kalina, 522
U.S. at 123). But in 1874, when Congress enacted § 1983,
the prevailing rule was that intended third-party
beneficiaries could sue to enforce a contract.
“The best known and most influential” contracts
treatises in 1870 “were by William Story and Theophilus
Parsons.” E. Allan Farnsworth, Contracts Scholarship in
the Age of the Anthology, 85 Mich. L. Rev. 1406, 1408-09
(1987); CONG. GLOBE, 42nd Cong., 2d Sess. 383 (1872)
(Sen. Sumner citing Parsons). Six versions of Parsons
were published between 1853 and 1874, using materially
identical relevant language. Parsons said the “prevailing
rule” was that intended third-party beneficiaries could
sue. 1 Theophilus Parsons, Law of Contracts 467 (6th ed.
1873). This Court cited this exact passage of Parsons for
this exact proposition in a contracts case in 1876.
Hendrick v. Lindsay, 93 U.S. 143, 149 (1876). And across
multiple editions Story also recognized this as the general
American rule. William W. Story, A Treatise on the Law
of Contracts Not Under Seal 82 (1st ed. 1844) (hereinafter
W. Story, 1844 Treatise); 1 William W. Story, A Treatise
To be sure, members of this Court have questioned whether
third-party beneficiaries could enforce contracts in the 1870s. Br.3.
Full briefing and further examination in this case shows that the
“better considered position” is that they could. McGrath v.
Kristensen, 340 U.S. 162, 176-78 (1950) (Jackson, J., concurring).
8
29
on the Law of Contracts Not Under Seal 549 (4th ed. 1856)
(hereinafter W. Story, 1856 Treatise).
Petitioners’ quotes from Story, Holmes, and Langdell
are inapposite. The Langdell and Holmes quotes are from
passages that were never meant to explain the prevailing
rule. The quoted section of Holmes’s lectures has nothing
to do with contract rules for third-party beneficiaries. See
Oliver W. Holmes, Jr., The Common Law 340-41 (1881).
Langdell’s Summary was a teaching aid, not a treatise,
see Farnsworth, supra at 1410, and “decidedly not a
canonic textual treatment of contract law,” Stephen A.
Siegel, John Chipman Gray and the Moral Basis of
Classical Legal Thought, 86 Iowa L. Rev. 1513, 1516
(2001); see also Farnsworth, supra, at 1409. Moreover,
Langdell was examining “the established doctrine in
England and in Massachusetts”; he noted a “contrary
doctrine” was “already established” elsewhere.
Christopher C. Langdell, A Summary of the Law of
Contracts 80 (2d ed. 1880). In Story’s case, petitioners (at
14) omit text from the passage, which states: “in cases of
simple contract if one person make a promise to another
for the benefit of a third … the party for whose benefit it
is made may maintain an action upon it.” W. Story, 1844
Treatise 82. Story’s 1856 edition made the point even
more forcefully. W. Story, 1856 Treatise 554-55
(explaining “the broad doctrine is here held that where
one person makes a promise to another upon a valid
consideration for the benefit of a third, the third person
may maintain an action thereon, although he be not privy
to the original promise. Nor does it seem to matter
whether the promise be founded upon an agreement
relating to property or specific articles belonging to the
third person or in respect to which he has a special
interest” and collecting cases).
Also contrary to petitioners’ arguments (at 15), thirdparty beneficiaries routinely successfully sued to enforce
30
promises for their benefit. Courts in New York, Ohio,
Illinois, Missouri, Indiana, and thirteen other states,
representing five of the six largest states and almost two
thirds of the nation’s population at the time of § 1983’s
enactment (and at least 19 states total) seemingly would
have allowed such suits in 1874 in accordance with what
they described as the prevailing rule in this country. See
Resp. App. 1a-6a. The smattering of cases petitioners
found from a handful of states (at 15) do not show a
“settled” contrary rule.
Petitioners (at 18-23) are incorrect that rules
governing government contracts “bolster” their
argument. Instead, it reveals the inherent manipulability
and error of petitioners’ project to analogize Spending
Clause legislation to contracts.9 The best analogy when
the federal government exchanges promises with a state
under the Spending Clause is to a contract between
sovereigns (a treaty), as this Court recognized in Steward
Machine Co. v. Davis, 301 U.S. 548, 597 (1937). And
treaties—like the treaties securing hunting, fishing, and
travel rights to members of Indian tribes—create
individually enforceable rights for third-party
beneficiaries. See, e.g., Cree v. Waterbury, 78 F.3d 1400,
1401-02 (9th Cir. 1996) (discussing plaintiff Indians’ § 1983
claims to enforce their rights under the Treaty with the
Yakima, June 9, 1855, 12 Stat. 951); Cree v. Washington,
990 F.2d 1256 (9th Cir. 1993) (Mem.) (same); Romero v.
Kitsap Cnty., 931 F.2d 624, 626-27 (9th Cir. 1991)
(similar); 2 Joseph Story, Commentaries on the
Constitution of the United States § 1838, at 571 (2d ed.
1851); see also Edye v. Robertson, 112 U.S. 580, 598 (1884)
(treaties providing for the “rights of citizens and subjects
Petitioners’ government contracts analogy also fails because
those contracts generally did not create intended individual thirdparty rights. See U.S. Br. 19-20.
9
31
of the contracting nations” “are capable of enforcement as
between private parties in the courts of the country”).
c. Petitioners argue that the Court should hold that
separation of powers and federalism principles preclude
the creation of statutory rights under § 1983. Br. 23-26.
They argue that permitting § 1983 enforcement of federal
statutory rights thrusts courts into a fundamentally
legislative role, id. at 24-25, and that it betrays federalism
by exposing states to unanticipated and unpredictable
liability, id. at 25-26. Yet there is no dispute that Congress
has the power to create a cause of action to enforce
Spending Clause rights; the only question is whether it
has done so. And it is petitioners who would thrust the
courts into a legislative role, by overriding the statutory
text that Congress enacted in favor of an unwritten
limitation based on what petitioners think Congress
intended.
Moreover, the requirement that rights must be
unambiguously conferred (and recognized by courts as
such) safeguards federalism and separation-of-powers
principles. That requirement allows Congress to create
rights knowing they will be enforced while allowing states
to “anticipate—[and] budget for—possible litigation costs
or jury awards” when state actors violate them. Id.
Numerous statutes create federal rights with sufficient
clarity to overcome separation of powers and federalism
concerns. Rev. Stat. §§ 1977 and 1978 secure rights, as
does the Law Enforcement Officers Safety Act, which
unambiguously secures to law enforcement officers a
right to carry concealed firearms. 18 U.S.C. § 926C (JA812); see DuBerry, 824 F.3d at 1052-55. “Of course, there
will be some hard cases.” Wooden v. United States, 142 S.
Ct. 1063, 1071 (2022). But hard cases are not a reason to
ignore the text of the laws Congress wrote.
32
B.
FNHRA’s chemical restraint and wrongful
discharge and transfer rights are individually
enforceable rights that § 1983 protects
FNHRA’s text, context, and purpose show that its
rights against chemical restraint and wrongful discharge
and transfer are federal rights that § 1983 protects.
1. Not every violation of a federal statute is
redressable under § 1983: “[A] plaintiff must assert the
violation of a federal right, not merely a violation of
federal law.” Blessing, 520 U.S. at 340. Determining
whether a federal statute creates rights enforceable
under § 1983 requires taking “pains to analyze the
statutory provisions in detail, in light of the entire
legislative enactment.” Suter, 503 U.S. at 357.
Whether a statute is enforceable under § 1983 turns
on whether Congress “unambiguously confer[red] upon
the … beneficiaries of the Act a right to enforce the
requirement” at issue. Id. This painstaking analysis “in
detail,” this “close” examination for “unambiguous”
intent, is directed not to whether the statute at issue
“created unspecified ‘rights,’ ” but rather to the more
exacting inquiry into whether the statute confers a
“protected individual interest,” “an individual
entitlement.” Blessing, 520 U.S. at 343. To aid that
inquiry, the Court has “traditionally looked at three
factors” in considering whether a federal statute confers
individual rights enforceable under § 1983: (1) whether
the provision in question was intended to benefit the
putative plaintiff; (2) whether the interest the plaintiff
asserts is not so “vague and amorphous” that “its
enforcement would strain judicial competence”; and (3)
whether the statute “unambiguously impose[s] a binding
obligation.”10 Id. at 340-41. At bottom, the “inquiry focuses
Petitioners argued below that Blessing “set forth the standard
courts must apply in evaluating whether a statute implies a private
10
33
on congressional intent,” id. at 341, and “[t]he most
important inquiry ... is whether Congress intended to
create the private remedy sought by the plaintiffs.” Suter,
503 U.S. at 364. That intent must be expressed
“unambiguously” before spending power legislation will
be held to give rise to individual rights enforceable under
§ 1983. Id. at 357, 363.
2.a. FNHRA meets § 1983’s exacting standards. The
United States agrees. See U.S. Br. 25-27. FNHRA uses
unambiguous rights-creating language that shows a clear
intent to create enforceable rights for individuals in the
benefited class. The statute confers “rights”—using the
word “right” repeatedly to describe the entitlement it
confers—on individual nursing-home residents. 42 U.S.C.
§ 1396r(c). FNHRA says that nursing homes “must
protect” these rights and “must not” violate them.
§§ 1396r(c)(1)(A), 1396r(c)(2)(A). The statute describes
them as “legal rights” and states that they devolve on
guardians if residents are adjudged incompetent.
§§ 1396r(c)(1)(B)(i), 1396r(c)(1)(C). The statute mandates
that nursing-home residents be informed of these rights,
orally and in writing, upon admission to a nursing home
and on request. § 1396r(c)(1)(B)(i), (ii). The statute groups
these rights under a section entitled “Requirements
relating to residents’ rights.” § 1396r(c). The “Resident
Rights” were literally posted on the walls of the nursing
home in this case. That poster reads near the top: “This
page summarizes specific rights you have as a nursing
home resident as provided by both federal and Indiana
state statutes and regulations.”
right of action, including for purposes of Section 1983.”
Pet. C.A. Br.19 (“This Court Should Apply the Blessing Test.”).
34
Bill of Rights (Far Off)
Fig. 1. The Bill of Rights posted at
Valparaiso Care and Rehabilitation
35
Bill of Rights (Close Up)
Fig. 2. Close up of the Bill of Rights on the wall of
Valparaiso Care and Rehabilitation
36
That Congress expressly elevated these rights to a
condition of participation in the Medicaid program when
it enacted FNHRA is powerful evidence that Congress
understood it was creating enforceable rights. See
Pennhurst, 451 U.S. at 18 (enforceability turns on
whether Congress imposed an obligation “to fund certain
rights as a condition of receiving federal moneys”).
Congress and the executive branch understood—in light
of this Court’s holding in Pennhurst—that making
compliance with statutory rights an express condition of
participation in a federal spending program would make
the rights enforceable. Congress and the executive
branch sparred over whether to elevate these rights to the
status of conditions of participation for over half a decade
before Congress decided to accept the recommendations
of the IOM Report and make them conditions of
participation. See pp. 15-16, supra.
The legislative history of FNHRA further shows that
Congress intended to confer individual enforceable rights
on nursing-home residents. The regulatory precursor to
FNHRA was entitled the “Patients’ bill of rights,” the
legislative precursors to FNHRA were also entitled
“Patients’ bill of rights,” and several of these statutes
included a specific private cause of action against all
nursing homes, public and private. See pp. 14-15, supra.
Suits to enforce these rights were clearly contemplated in
the legislative process.
The nature of the rights FNHRA protects is also
strong evidence of Congress’s intent. The rights FNHRA
protects are basic rights to bodily autonomy and integrity
similar to the basic protections enshrined in the
Constitution’s Bill of Rights. These are exactly the kind of
“fundamental human, highly personalized rights” “from
which § 1983 claims are to be made.” First Nat. Bank of
Omaha v. Marquette Nat. Bank of Minneapolis, 636 F.2d
195, 198 (8th Cir. 1980).
37
FNHRA’s savings clause further shows Congress’s
intent that these rights would be enforceable. That
savings clause provides that “[t]he remedies provided
under this subsection are in addition to those otherwise
available under State or Federal law and shall not be
construed as limiting such other remedies, including any
remedy available to an individual at common law.” 42
U.S.C. § 1396r(h)(8). Congress would not have preserved
access to other state and federal remedies outside
FNHRA (a category that clearly includes § 1983) had it
not intended for these rights to be enforced using state
common law and the federal § 1983 remedy. That no one
disputes that FNHRA’s rights are enforceable under
CRIPA (the language of which mirrors § 1983) further
cements this conclusion. See U.S. Br. 34.
In short, petitioners had clear and unambiguous
notice that violating FNHRA’s chemical restraint and
transfer and discharge rights would give rise to liability
under § 1983.
b. Petitioners (at 43-46) claim that the phrasing of the
residents’ bill of rights—as an instruction to nursing
homes to protect residents’ rights—means FNHRA does
not secure any rights. That is incorrect. Laws requiring
officials to protect individual rights secure those rights.
Rev. Stat. § 2005, a rights-creating statute passed in 1874
alongside § 1983 (JA143) secured the right to vote. See
David P. Currie, The Reconstruction Congress, 75 U. Chi.
L. Rev. 383, 458-59 (2008). The First Amendment, written
as an instruction to Congress, similarly creates individual
rights. U.S. Br. 26.
Petitioners (at 45) are also incorrect that FNHRA’s
chemical restraint and discharge and transfer rights are
so “vague and amorphous” that they would “strain judicial
competence” to enforce. The statute contemplates that
innumerable officials can understand and protect these
rights, including state administrative judges, state
38
surveyors and certifiers, HHS officials, and the nursing
homes themselves. Federal courts are at least as capable
of redressing rights violations as all of these other actors.
These are rights courts are equipped to enforce.
3.a. Once a plaintiff demonstrates that a statute
confers an individual right, that is typically the end of the
matter. Gonzaga, 536 U.S. at 284-85. Section 1983
provides a remedy for the deprivation of any right secured
by the Constitution and laws, and once a plaintiff
establishes that a right is secured by the laws, “the right
is presumptively enforceable by § 1983.” Id. at 284.
But in this case, petitioners (Br. 39-42), and the
United States (U.S. Br. 29-33), argue (for different
reasons) that FNHRA “impliedly precluded Section 1983
suits” “by creating a comprehensive enforcement scheme
that is incompatible with individual enforcement under
§ 1983,” Blessing, 520 U.S. at 341.
At the outset, petitioners and the United States
understate the burden they must meet. “Implied
preclusion” is another way of saying implied repeal.
Notwithstanding that FNHRA creates enforceable rights
under § 1983, petitioners and the United States argue the
Court should write into the statute an imaginary clause
stating “Section 1983 does not apply to FNHRA.” But
such “repeals by implication are not favored.” Morton v.
Mancari, 417 U.S. 535, 549 (1974). They are a “rarity.”
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534
U.S. 124, 142 (2001). “Inserting any clause, whether small
or great, important or trivial” into a law is “not an exercise
of judicial functions.” The Amiable Isabella, 19 U.S. (6
Wheat.) 1, 71-73 (1821). As a consequence, presented with
two statutes the Court will “regard each as effective”—
unless Congress’s intention to repeal is “clear and
manifest,” or the two laws are “irreconcilable.” Morton,
417 U.S. at 550-51; see also FCC v. NextWave Pers.
Commc’ns Inc., 537 U.S. 293, 304 (2003).
39
Thus, implied preclusion arises only when an
enforcement scheme is “incompatible” with individual
enforcement under § 1983. Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 252 (2009). As the Court explained
in Fitzgerald, in the three cases where the Court has
found implied preclusion, the statutes included federal
judicial remedies, and all “the statutes at issue required
plaintiffs to comply with particular procedures and/or to
exhaust particular administrative remedies prior to filing
suit.” Id. at 253-54. “Allowing a plaintiff to circumvent the
statutes’ provisions … would have been inconsistent with
Congress’ carefully tailored scheme” in each case. Id. at
254-55. Thus the “dividing line” for purposes of implied
preclusion is whether the statute provides a “more
restrictive” federal judicial remedy. Id. at 255-56.
Implied preclusion is inappropriate here because
FNHRA’s remedial scheme is entirely compatible with
§ 1983 and includes no federal judicial remedy. The
remedial scheme, as all concede, primarily consists of
enforcement by the state and federal government in the
form of penalties or expulsion from the Medicaid
program. See U.S. Br. 3-5; Br. 5-6, 41 n.13. But the
existence of a government enforcement scheme has never
been enough to impliedly preclude access to § 1983. See
U.S. Br. 28-29; Fitzgerald, 555 U.S. at 252-55; Blessing,
520 U.S. at 347-48.
FNHRA also provides nursing home residents a right
to voice grievances, 42 U.S.C. § 1396r(c)(1)(A)(iv), and a
right to appeal wrongful discharges and transfers,
§ 1396r(e)(3). But neither of those provisions are federal
remedies. As petitioners and the United States concede,
there is no pathway to a federal judicial remedy in
FNHRA at all. The grievance and appeal rights are rights
states are supposed to implement as a condition of the
state’s participation in Medicaid. But states often fail to
protect or provide them. See Anderson v. Ghaly, 930 F.3d
40
1066, 1073 (9th Cir. 2019). And “the existence of a state
administrative remedy does not ordinarily foreclose
resort to § 1983,” U.S. Br. 28-29 (quoting Wright, 479 U.S.
at 427-28), because it does not show a clear congressional
intent to displace § 1983, Fitzgerald, 555 U.S. at 252-55.
Moreover, the two state administrative remedies
provide relief of a fundamentally different sort from the
relief available under § 1983 and thus do not show an
intent to displace § 1983. See Wilder, 496 U.S. at 523;
Wright, 479 U.S. at 427-29. The administrative remedy for
chemical restraint is that the nursing home must report
the conduct to the state regulator and take “appropriate
corrective action” to stop it. 42 C.F.R. § 483.12(c). The
administrative remedy for an unlawful discharge is return
to the nursing home that just made the discharge.
§ 431.231. Each of these remedies is about restoring the
status quo and nothing more. In contrast, § 1983 provides
redress for past wrongdoing or restraint against future
misconduct.
At base, “the crucial consideration is what Congress
intended.” Fitzgerald, 555 U.S. at 252. And here,
Congress made its intent absolutely clear. It included a
savings clause that provides that “[t]he remedies
provided” “are in addition to those otherwise available
under” federal law. 42 U.S.C. § 1396r(h)(8). This Court
has described § 1983 as a “remedy” numerous times, both
before and after FNHRA’s enactment.11 The best reading
See, e.g., Fitzgerald, 555 U.S. at 256 (describing § 1983 as a
“remedy”); Hudson v. Michigan, 547 U.S. 586, 597 (2006) (same);
City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 121
(2005) (same); Gonzaga, 536 U.S. at 284 (same); Crawford-El v.
Britton, 523 U.S. 574, 595 (1998) (same); Golden State Transit Corp.
v. City of Los Angeles, 493 U.S. 103, 105 (1989) (same); Wright, 479
U.S. at 427 (same); Middlesex Cnty. Sewerage Auth. v. Nat’l Sea
Clammers Ass’n, 453 U.S. 1, 20 (1981) (same); Mitchum, 407 U.S. at
239 (same).
11
41
of the savings clause is that it expresses Congress’s clear
intent that the remedies in FNHRA should be in addition
to remedies “otherwise available under … Federal law.”
Those remedies include § 1983.
b. To overcome these points, petitioners and the
United States advance a variety of arguments. None is
persuasive.
Petitioners argue that this Court’s precedents
support a finding of implied preclusion because the
administrative scheme offers “individualized enforcement
methods.” See Br. 40-42. But as Fitzgerald explains, and
the basic principle underlying implied preclusion doctrine
dictates, an “individualized enforcement method” is not
enough. See 555 U.S. at 256; Blessing, 520 U.S. at 346-48;
Wilder, 496 U.S. at 523; Wright, 479 U.S. at 427-29. For
one remedy to displace the other, the two must be
“incompatible,” and FNHRA’s remedies are not
incompatible with § 1983. The United States agrees that
petitioners are incorrect. See U.S. Br. 28-29.
The United States argues that because most nursing
homes were private when Congress enacted FNHRA,
Congress must have thought § 1983 suits to enforce
FNHRA were unnecessary. U.S. Br. 29-33.12
That argument fails because it relies on a faulty
premise for which there is no evidence: that Congress
wanted a federal judicial remedy against all nursing
homes or none. That assumption is baseless. Congress
enacts and the President signs laws all of the time that
reflect legislative compromises. And here Congress had
many reasons to provide access to § 1983 to residents of
government nursing homes. FNHRA’s remedial scheme
is less effective for government nursing homes, which
Contrary to the United States’ (at 29) claim, nothing turns on
whether the government is operating in a “distinctly governmental
capacity.” See, e.g., Wright, 479 U.S. at 426-29.
12
42
FNHRA recognizes by vesting the HHS Secretary with
additional oversight duties over “State nursing facilities.”
42 U.S.C. § 1396r(h)(3)(A). Congress likely thought § 1983
was needed because states collecting billions of dollars in
Medicaid funds for their government nursing homes—
like Indiana is—have a strong incentive to look away when
government nursing homes engage in misconduct.13
Congress may also have recognized that states frequently
immunize arms of the government from tort claims (while
private nursing homes are amenable to suit),14 and
determined § 1983 would put government and private
nursing homes on similar footing. Congress likely also
determined that governments owe citizens a special duty
to protect their rights and thus state actors should abide
by a higher standard, a conclusion reflected in a range of
statutes including RFRA, RLUIPA, and CRIPA. The
point is that Congress had as many reasons to preserve
access to § 1983 as it did to foreclose access to it. There is
no way to decide which implicit intention the statute
reflects, which is why the text of the law should guide the
Court, not speculation about intent.15
Petitioners and the United States argue that the
savings clause does not actually preserve access to the
See Tim Evans et al., Careless, Indianapolis Star, Mar. 11, 2020,
https://bit.ly/3vsl1ZD.
14
For example, in Pennsylvania government nursing homes have
tort immunities that private nursing homes do not have. See 42 PA.
CONS. STAT. § 8522(b)(2); see also Davis v. County of
Westmoreland, 844 A.2d 54, 56 (Pa. Commw. Ct. 2004).
15
That no party or judge in any case ever—not even petitioner
here, see Br. 39-42; Pet. 26-29—has ever claimed that FNHRA
precludes access to § 1983 for the reason the United States has
given is another reason to reject its argument. When the United
States claims to discover in a long-extant statute a heretofore
unknown interpretation, the Court typically hesitates to embrace it.
See West Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022); UARG v.
EPA, 573 U.S. 302, 324 (2014).
13
43
§ 1983 remedy. Br. 42; U.S. Br. 34. Both claim that this
Court’s cases construing savings clauses with different
wording in different statutes dictate that result. They cite
Sea Clammers, 453 U.S. at 15-16, 20 n.31, and Rancho
Palos Verdes, 544 U.S. at 127.
But whether FNHRA’s savings clause applies to the
§ 1983 remedy “is resolved by the most fundamental
principle of statutory interpretation: Read the statute.”
Becerra v. Empire Health Found., 142 S. Ct. 2354, 236869 (2022) (Kavanaugh, J., dissenting). In Sea Clammers,
the relevant savings clause preserved access to “any right
which any person ... may have under any statute or
common law to seek ... any other relief.” 453 U.S. at 15-16,
20 n.31. Sea Clammers held that a “right” to seek “other
relief” is not a right to pursue a different “remedy” for a
violation of the very statute the savings clause is in. Id. at
20 n.31. In Rancho Palos Verdes, the relevant savings
clause provided that “[t]his Act and the amendments
made by this Act shall not be construed to … impair …
Federal … law.” 544 U.S. at 126. The Court in Rancho
Palos Verdes held that precluding access to § 1983 does
not “impair” federal law. Id.
Neither of those savings clauses look remotely like
the savings clause in FNHRA, which expressly preserves
access to all other “remedies” “otherwise available under
… Federal law.” 42 U.S.C. § 1396r(h)(8) (emphasis
added). Were there any doubt these other remedies were
meant to be other remedies for FNHRA violations, the
explanation of the savings clause in FNHRA’s legislative
history eliminates it. See H.R. REP. NO. 100-495, at 575
(1987) (Conf. Rep.); H.R. REP. NO. 100-391, at 472, 475
(1987). At minimum, FNHRA’s savings clause dispels any
implicit inference that Congress intended to “restrict”
44
access to § 1983 by providing “comprehensive” remedies
in FNHRA.16
3. Petitioners and their amici make several policy
arguments against § 1983 enforcement of FNHRA rights.
They claim it disrupts state medical malpractice schemes
and creates unjustified liability for government nursing
homes. Those concerns are either misplaced or
exaggerated.
Section 1983 does not displace medical malpractice.
Section 1983 applies only to government nursing homes.
And the intentional torts at issue here are not similar to
typical malpractice claims alleging negligence. FNHRA’s
bill of rights merely sets a floor to protect the basic rights
of nursing home residents. Section 1983 also does not
create an unjustified disparity between government and
private nursing homes. Indiana is an outlier that has made
more than 90% of its nursing homes government-owned.
It has apparently done this to vastly increase its Medicaid
reimbursements and channel the additional Medicaid
funds to county hospitals. See Evans, supra at note 13.
That decision to make virtually all its nursing homes
public forces people like Gorgi Talevski to live in
government nursing homes—nursing homes that states
may not adequately police. In the rare outlier like Indiana,
§ 1983 enforcement plays a crucial gap-filling role.
To be sure, petitioners and the United States have
advanced important policy arguments. But this is a court,
not Congress. Its role is not to make or amend the law.
Under the Constitution’s separation of powers, its role is
to interpret and follow the law regardless of whether it
The United States concedes the savings clause preserves access
to CRIPA to enforce FNHRA. U.S. Br. 34. That concession is fatal.
Congress would not have preserved access to CRIPA, a cause of
action with materially identical enforcement language to § 1983 for
the Attorney General (JA132-33), and not § 1983 itself.
16
45
likes the result. Cf. Texas v. Johnson, 491 U.S. 397, 42021 (1989) (Kennedy, J., concurring). Congress gave
nursing-home patients rights that it requires federal
courts to enforce under § 1983, and the Court must honor
that decision.
II.
AN ADVERSE RULING WOULD BE DISASTROUS FOR
FEDERAL SAFETY-NET PROGRAMS
Enforcement of federal statutory rights through
§ 1983 has been an essential component of cooperative
federalism programs for half a century. Eliminating the
availability of § 1983 would leave tens of millions of people
that Congress provided with rights under these Spending
Clause programs without any effective means of
enforcement. With more than a quarter of the United
States population (more than 87 million people)
dependent on Medicaid for their basic healthcare needs,
the consequences of eliminating access to § 1983 to
enforce rights in the Medicaid statute are staggering.
Medicaid, and programs like it, will transform from
programs where states must comply with strict conditions
on participation into programs in which many of the rights
guaranteed to program beneficiaries become illusory.
This is far from a hypothetical concern. The federal
government almost never withdraws federal funds from
states as a penalty for failing to safeguard required rights
under the programs because withdrawing these funds
harms the very people these programs are meant to
benefit.
Federal government enforcement also means
underenforcement. The federal government lacks the
resources to police every individual violation of a nursing
home resident’s FNHRA rights, let alone the rights in
every spending statute. And if the Executive Branch
disagrees that certain rights are worthy of protection, it
may exercise discretion and decline to penalize states for
failing to protect disfavored rights. That is inconsistent
46
with the very concept of conferring a right on individuals.
But it is the inevitable consequence of eliminating access
to § 1983.
Section 1983 offers an essential component of the
remedies available to individuals for violations of their
rights under cooperative spending programs. These
rights are embedded in the law and in the fabric of society.
An adverse decision from this Court would upend the
careful enforcement balance Congress has constructed
over the course of decades while leaving millions of
citizens without remedy for the deprivation of federal
rights. The Court should decline to take that drastic step,
especially where, as here, the text of the statutes involved
so clearly dictates the opposite result.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
47
Respectfully submitted.
SUSIE TALEVSKI
429 Hampshire Ct.
Valparaiso, IN 46385
JAY MEISENHELDER
EMPLOYMENT &
CIVIL RIGHTS LEGAL
SERVICES, P.C.
650 N. Girls School Rd.
Suite D40
Indianapolis, IN 46214
LORELI WRIGHT
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 80202
SEPTEMBER 2022
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
KRISTINE BLACKWOOD
STEPHEN K. WIRTH
KOLYA D. GLICK
CASEY BROUHARD
ERNESTO M. HERNÁNDEZ
ALYSSA T. GERSTNER
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
WILLIAM T. SHARON
LAUREL RUZA
HANNAH GRACE
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th St.
New York, NY 10019
APPENDIX
STATES THAT ALLOWED INTENDED
BENEFICIARIES TO ENFORCE CONTRACTS
AS OF 1874
Alabama (996,9921) - Mason v. Hall, 30 Ala. 599, 601
(1857) (“[T]he weight of authority, both in England and
America, is decidedly in favor of the proposition, that
where a parol promise is made to one, for the benefit of
another, an action may be maintained upon it by him for
whose benefit it was made.”).
California (560,247) - Morgan v. Overman Silver
Mining Co., 37 Cal. 534, 537 (1869) (“[T]he authorities
show, that, in such cases, the party for whose benefit the
promise is made, may maintain an action against the
promisor.”).
Illinois (2,539,891) - Bristow v. Lane, 21 Ill. 194, 197
(1859) (“In this country the right of a third party to bring
an action on a promise made to another for his benefit, is
generally asserted, and is the prevailing rule with us.”).
Indiana (1,680,637) - Day v. Patterson, 18 Ind. 114,
117 (1862) (“[I]t is settled in Indiana that a party may sue
upon a promise made to a third person for his benefit.”);
Davis v. Calloway, 30 Ind. 112, 113 (1868) (same).
Iowa (1,194,020) - Scott’s Adm’rs v. Gill, 19 Iowa 187,
188 (1865) (reaffirming “the broad principle[] that if one
person make a promise to another for the benefit of a third
person, that the third person may maintain an action on
the promise”).
Kentucky (1,321,011) - Allen v. Thomas, 60 Ky. 198,
199 (1860) (“The doctrine is now well settled, that the
party for whose sole benefit a contract is evidently made
State population in 1870 according to United States Census data.
See Table I., Population of the United States, Population by States
and Territories—1790-1870 (available at https://www2.census.gov/
library/publications/decennial/1870/population/1870a-04.pdf).
1
(1a)
2a
may sue thereon in his own name, although the
engagement be not directly to or with him.”).
Louisiana (726,915) - Union Bank of Louisiana v.
Bowman, 9 La. Ann. 195, 196 (1854) (“It is true that one
in whose favor a stipulation is made by another, may bring
an action to enforce it, though not a party to the
contract.”).
Maine (626,915) - Bohanan v. Pope, 42 Me. 93, 96
(1856) (“[W]here a party for a valuable consideration
stipulates with another, by simple contract, to pay money
or do some other act for the benefit of a third person, the
latter, for whose benefit the promise is made, if there be
no other objection to his recovery than a want of privity
between the parties, may maintain an action for a breach
of such engagement.”); see also Motley v. Manufacturers’
Ins. Co., 29 Me. 337, 340 (1849) (similar).
Maryland (780,894) - Small v. Schaefer, 24 Md. 143,
158 (1866) (allowing a third-party suit and citing
“Professor Parsons in his Law of Contracts” for the
proposition that a third-party beneficiary may hold the
promisor liable even if the third-party was unaware of the
contract when it was created).
Minnesota (439,706) - Sanders v. Clason, 13 Minn.
379, 382 (1868) (allowing a third-party suit and quoting
Parsons: “In this country the right of a third party to
bring an action on a promise made to another for his
benefit, seems to be somewhat more positively asserted,
and we think it would be safe to consider this a prevailing
rule with us”).
Mississippi (827,922) - Sweatman v. Parker, 49 Miss.
19, 31 (1873) (citing Parsons and concluding that “[t]he
promise was made by Brantly to Cunningham for the
benefit of Parker, who had an undoubted right to maintain
an action upon it, and especially if adopted by him, or
3a
where he had, as in this case, a beneficial concern and
interest in the transaction”).
Missouri (1,721,295) - Flanagan v. Hutchinson, 47
Mo. 237, 239 (1871) (“[T]he party for whose benefit the
promise, in such a case, is made, may sue upon it in his
own name.”); see also Meyer v. Lowell, 44 Mo. 328, 330
(1869) (quoting Parsons: “In this country the right of a
third party to bring an action on a promise made to
another for his benefit, seems to be more positively
asserted, and we think it would be safe to consider this a
prevailing rule with us”).
Nevada (42,491) - Alcalda v. Morales, 3 Nev. 132, 137
(1867) (citing Parsons for the proposition that “[t]here
seems to be a decided inclination in this country to allow
the party for whose benefit a contract is made to sue on it,
although he may not have been a party assenting when
the contract was made”).
New Jersey (906,096) - Joslin v. New Jersey CarSpring Co., 36 N.J.L. 141, 146 (1873) (“[I]t is now well
settled, as a general rule, that in cases of simple contracts,
if one person makes a promise to another for the benefit
of a third, the third may maintain an action on it though
the consideration does not move from him.”).
New York (4,382,759) - Coster v. Mayor of Albany,
43 N.Y. 399, 410-11 (1871) (holding that a city’s contract
with the state to pay for property damages stemming
from public construction was enforceable by third-party
property owners even though “[t]he ultimate beneficiary
[was] uncertain” at the time of the contract and was not
“privy to the consideration”); see also Lawrence v. Fox, 20
N.Y. 268, 274 (1859).
Ohio (2,665,260) - Thompson v. Thompson, 4 Ohio St.
333, 353 (1854) (describing as “well settled” the rule “that
if one person makes a promise to another, for the benefit
4a
of a third person, that third person may maintain an action
at law on that promise”).
South Carolina (705,606) - Brown v. O’Brien, 30
S.C.L. 268, 270 (1845) (“Where one person makes a
promise, for the benefit of a third person, that third
person may maintain an action on such promise.”).
Texas (818,579) - McCown v. Schrimpf, 21 Tex. 22, 27
(1858) (“[T]he suit may be brought either by the legal
holder or the party beneficially interested in the
contract.”).
Wisconsin (1,054,670) - Putney v. Farnham, 27 Wis.
187, 190 (1870) (“[T]he principle seems well settled now in
cases of simple contracts, where one makes a promise to
another for the benefit of a third person, that such third
person can maintain an action in his own name upon the
promise, though the consideration does not move from
him.”).
STATES THAT ALLOWED INTENDED
BENEFICIARIES TO ENFORCE CONTRACTS
SHORTLY AFTER 1874
Colorado (39,864) - Lehow v. Simonton, 3 Colo. 346,
348 (1877) (“[T]he decided preponderance of American
authority sustains the action of the beneficiary.”).
Florida (187,748) - Wright v. Terry, 23 Fla. 160, 172
(1887) (collecting authority saying that third-parties could
enforce promises intended for their benefit).
Kansas (364,399) - Anthony v. Herman, 14 Kan. 494,
497 (1875) (“[N]otwithstanding some conflict in the
authorities, we think the rule is settled that an action will
lie on a promise made by a defendant, upon valid
consideration to a third party, for the benefit of the
plaintiff, although the plaintiff was not privy to the
consideration.”); Burton v. Larkin, 13 P. 398, 399 (1887)
(noting that the rule is limited to intended, not merely
incidental beneficiaries).
5a
Nebraska (122,993) - Shamp v. Meyer, 20 Neb. 223
(1886) (“[I]n case of simple contract, where one makes a
promise to another for the benefit of a third person, such
third person may maintain an action upon the promise,
though the consideration does not move from him.”).
Oregon (90,923) - Baker v. Eglin, 11 Or. 333, 334
(1884) (“[T]he authorities with us are quite decisive that
when A., for a valuable consideration, agrees with B. to
pay his debt to C., the latter can enforce the contract
against A.”).
Rhode Island (217,353) - Urquhart v. Brayton, 12
R.I. 169, 171 (1878) (allowing a third-party suit under a
theory of novation, and observing that “[t]he decisions on
this question are conflicting, but many of the more recent
cases support the right of the [third-party] mortgagee to
maintain the action”).
STATES THAT BARRED INTENDED
BENEFICIARIES FROM ENFORCING
CONTRACTS AS OF 1874
Arkansas (484,471) - Hicks v. Wyatt, 23 Ark. 55, 58
(1861) (rejecting a third-party suit where there “was no
privity of contract”).
Connecticut (537,454) - Treat v. Stanton, 14 Conn.
445, 451 (1841) (“[T]he parties to a contract are the
persons in whom the legal interest in the subject of it is
deemed to be vested, and who therefore must be the
parties to the action which is instituted for the purpose of
enforcing it, or recovering damages for its violation.”).
Massachusetts (1,457,351) - Mellen v. Whipple, 67
Mass. 317, 321 (1854) (concluding that “[t]here must be a
privity of contract between the plaintiff and defendant, in
order to render the defendant liable to an action, by the
plaintiff, on the contract,” and describing contrary cases
as “exceptions”).
6a
Michigan (1,184,059) - Pipp v. Reynolds, 20 Mich. 88,
93 (1870) (rejecting a third-party claim).
New Hampshire (318,300) - Butterfield v.
Hartshorn, 7 N.H. 345, 347 (1834) (“It is apparent, that in
cases of this kind, a contract, in order to be binding, must
be mutual to all concerned . . . .”).
North Carolina (1,071,361) - Styron v. Bell, 53 N.C.
222, 224 (1860) (requiring mutual agreement to a
substitution or third-party action).
Pennsylvania (3,521,951) - Blymire v. Boistle, 6
Watts 182, 184 (1837) (rejecting a third-party suit because
the beneficiary was not “the only party in interest”).
Tennessee (1,258,520) - McAlister v. Marberry, 23
Tenn. 426, 427 (1844) (rejecting a third-party suit for lack
of privity).
Vermont (330,551) - Crampton v. Ballard’s Adm’r,
10 Vt. 251, 253 (1838) (denying third-parties’ right to
enforce a contract because “[i]t was made without their
privity”).
Virginia (1,225,163) - Ross v. Milne, 39 Va. 204, 218
(1841) (prohibiting a third-party suit at law, although
declining to decide whether third-party beneficiaries may
sue in equity).
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.