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

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,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENT

WENDY LIU

Counsel of Record

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Attorneys for Amicus Curiae

September 2022

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 2

I. Section 1983 provides an express cause of action

for rights established by all federal laws,

including Spending Clause laws. .......................... 2

A. Spending Clause laws are federal “laws”

within the scope of the § 1983 right of

action................................................................. 3

1. There is no exception to the § 1983 right

of action for Spending Clause laws. ........... 5

2. A Spending Clause law creates a right

enforceable under § 1983 if the law

unambiguously confers that right. ............. 7

B. The express right of action in § 1983 does

not require a separate right of action in the

federal law sought to be enforced. ................... 9

II. The contract-law analogy is inapplicable here

because § 1983 supplies an express right of

action. ................................................................... 14

A. This Court employs the contract-law analogy

when the statute lacks clarity on the type of

conduct or remedy for which a funding

recipient may be liable. .................................. 14

B. The contract-law analogy is inapplicable to

§ 1983 claims. ................................................. 18

C. The third-party beneficiary theory urged by

Petitioners is unfounded. ............................... 20

ii

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

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Alexander v. Sandoval,

532 U.S. 275 (2001) ....................................... 13, 21

Arlington Central School District Board of Education

v. Murphy,

548 U.S. 291 (2006) ........................... 15, 18, 19, 23

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ............................................. 13

Baker v. McCollan,

443 U.S. 137 (1979) ............................................... 3

Barnes v. Gorman,

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

Bennett v. Kentucky Department of Education,

470 U.S. 656 (1985) ............................................... 6

Blessing v. Freestone,

520 U.S. 329 (1997) ................................. 7, 8, 9, 10

Chapman v. Houston Welfare Rights Organization,

441 U.S. 600 (1979) ............................................. 10

Cummings v. Premier Rehab Keller, P.L.L.C.,

142 S. Ct. 1562 (2022) ..................................passim

Dalton v. Little Rock Family Planning Services,

516 U.S. 474 (1996) ............................................... 5

Davis v. Monroe County Board of Education,

526 U.S. 629 (1999) ....................................... 16, 19

Dennis v. Higgins,

498 U.S. 439 (1991) ......................................... 4, 12

Egbert v. Boule,

142 S. Ct. 1793 (2022) ......................................... 12

iv

Franklin v. Gwinnett County Public Schools,

503 U.S. 60 (1992) ............................................... 23

Gebser v. Lago Vista Independent School District,

524 U.S. 274 (1998) ................................. 16, 17, 19

Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 (1989) ......................................... 4, 12

Gomez-Perez v. Potter,

553 U.S. 474 (2008) ............................................. 12

Gonzaga University v. Doe,

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

Lawrence County v. Lead-Deadwood School District

No. 40-1,

469 U.S. 256 (1985) ............................................... 5

Livadas v. Bradshaw,

512 U.S. 107 (1994) ..................................... 3, 4, 19

Lynch v. Household Finance Corp.,

405 U.S. 538 (1972) ............................................... 4

Maine v. Thiboutot,

448 U.S. 1 (1980) ................................. 3, 4, 6, 7, 20

Middlesex County Sewerage Authority v. National

Sea Clammers Association,

453 U.S. 1 (1981) ................................................... 3

Oklahoma v. Castro-Huerta,

142 S. Ct. 2486 (2022) ........................................... 8

Pennhurst State School & Hospital v. Halderman,

451 U.S. 1 (1981) ............................................. 6, 15

Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) ............................... 7, 8, 14, 20

v

Smith v. Robinson,

468 U.S. 992 (1984) ............................................... 5

Smith v. Wade,

461 U.S. 30 (1983) ............................................... 20

Suter v. Artist M.,

503 U.S. 347 (1992) ........................................... 8, 9

United States v. Georgia,

546 U.S. 151 (2006) ............................................. 22

Vega v. Tekoh,

142 S. Ct. 2095 (2022) ................................... 11, 14

Wilder v. Virginia Hospital Ass’n,

496 U.S. 498 (1990) ..................................... 3, 7, 12

Wright v. City of Roanoke Redevelopment & Housing

Authority,

479 U.S. 418 (1987) ..................................... 5, 7, 23

Constitutional Provisions

U.S. Const. art. I, § 7, cl. 2.......................................... 5

U.S. Const. art. I, § 8, cl. 1.......................................... 5

U.S. Const. art. I, § 8, cl. 18........................................ 5

U.S. Const. art. VI, cl. 2 .............................................. 5

Statutes

20 U.S.C. § 1415. ....................................................... 21

29 U.S.C. § 794a ........................................................ 22

42 U.S.C. § 1381a ........................................................ 6

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

vi

42 U.S.C. § 12133 ...................................................... 22

42 U.S.C. § 18116 ...................................................... 22

Other

David E. Engdahl, The Spending Power,

44 Duke L.J. 1 (1994) ...................................... 9, 10

Noah Webster, An American Dictionary of the

English Language (1875) .................................... 10

Noah Webster, An American Dictionary of the

English Language, vol. II (1828)......................... 10

INTEREST OF AMICUS CURIAE1

Public

Citizen

is

a

consumer-advocacy

organization with members in all 50 states. Public

Citizen appears on behalf of its members before

Congress, administrative agencies, and the courts on

a wide range of issues involving protection of

consumers and workers, public health and safety, and

maintaining openness and integrity in government.

One of Public Citizen’s interests is ensuring that

federal and state governments comply with laws that

affect ordinary citizens. The ability of citizens to

enforce those laws, including through the private

right of action expressly provided in 42 U.S.C. § 1983,

is vital to guaranteeing such compliance. Public

Citizen submits this brief to explain that the § 1983

private right of action applies to Spending Clause

laws.

SUMMARY OF ARGUMENT

42 U.S.C. § 1983 provides an express private right

of action against every person acting under color of

state law who deprives another of “any rights,

privileges, or immunities secured by the Constitution

and laws of the United States.” The right of action

supplied in § 1983 applies to rights conferred by all

federal laws, including Spending Clause laws. So long

as a Spending Clause law unambiguously confers a

substantive, individual “right,” private parties may

enforce that right under the § 1983 right of action.

––––––––––––––––––––––––

1 This brief was not written in whole or part by counsel for a

party. No one other than amicus curiae or its counsel made a

monetary contribution to the preparation or submission of the

brief. Counsel for all parties have consented in writing to its

filing.

2

Because there is no question that § 1983 expressly

supplies a private right of action, it does not matter

whether the Spending Clause law that created the

substantive right for which the plaintiff seeks redress

also contains a right of action. The plaintiff’s claim is

brought pursuant to the express right of action

provided in § 1983, not pursuant to a right of action in

the Spending Clause law. Accordingly, Petitioners’

view that private parties cannot sue to enforce

Spending Clause laws because Spending Clause laws

are akin to contracts, and third-party beneficiaries of

contracts cannot sue to enforce contractual terms, is

misplaced. Although a contract-law analogy to

Spending Clause laws may be appropriate in some

circumstances, the analogy does not apply to all issues

concerning Spending Clause laws. And the contractlaw analogy does not apply here, where Congress has

expressly conferred a right of action and the scope of

the remedies available under it is not in doubt.

ARGUMENT

I. Section 1983 provides an express cause of

action for rights established by all federal

laws, including Spending Clause laws.

42 U.S.C. § 1983 provides an express private right

of action against every person who under color of state

law deprives a United States citizen or person within

the United States’ jurisdiction of “any rights,

privileges, or immunities secured by the Constitution

and laws of the United States.” Section 1983 provides

that every such person shall be “liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.” 42 U.S.C. § 1983.

The plain language of § 1983 thus provides a

“source of express congressional authorization of

3

private suits.” Wilder v. Virginia Hosp. Ass’n, 496 U.S.

498, 509 n.9 (1990) (quoting Middlesex Cty. Sewerage

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19

(1981)); see also Livadas v. Bradshaw, 512 U.S. 107,

132 (1994) (stating that “Section 1983 provides a

federal cause of action for the deprivation, under color

of law, of a citizen’s ‘rights, privileges, or immunities

secured by the Constitution and laws’ of the United

States”). The express cause of action provided

in § 1983 provides “a method for vindicating federal

rights elsewhere conferred” in the Constitution and

federal statutes. Baker v. McCollan, 443 U.S. 137, 144

n.3 (1979).

A. Spending Clause laws are federal “laws”

within the scope of the § 1983 right of

action.

Section 1983 unambiguously provides an express

right of action for violations of rights conferred by all

federal laws, including laws enacted pursuant to

Congress’s Spending Clause power. The phrase “the

Constitution and laws of the United States” in the

statutory language of § 1983 makes clear that

Congress intended the scope of the § 1983 right of

action to cover not just violations of constitutional

rights, but also violations of rights conferred by

federal laws. 42 U.S.C. § 1983 (emphasis added).

In Maine v. Thiboutot, 448 U.S. 1 (1980), this Court

confirmed that § 1983 provides a right of action for

violations of federal statutory rights, as well as

constitutional ones. In Thiboutot, the plaintiffs sued

under § 1983 to recover public assistance benefits to

which they were entitled under provisions of the

Social Security Act enacted pursuant to Congress’s

Spending Clause authority. 448 U.S. at 2–3. Looking

4

to the statutory text of § 1983, the Court explained

that “the phrase ‘and laws,’ as used in § 1983, means

what it says.” Id. at 4. “Given that Congress attached

no modifiers to the phrase, the plain language of the

statute undoubtedly embraces respondents’ claim

that petitioners violated the Social Security Act.” Id.;

see also Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103, 105 (1989) (“As the language of

the statute plainly indicates, the remedy encompasses

violations of federal statutory as well as constitutional

rights.”).

Since Thiboutot, the Court has refused to carve out

categories of laws or rights from the scope of the

§ 1983 right of action. For example, the Court has

“refused to limit the phrase ‘and laws’ in § 1983 to civil

rights or equal protection laws.” Dennis v. Higgins,

498 U.S. 439, 445 (1991). It likewise has “rejected

attempts to limit the types of constitutional rights

that are encompassed within the phrase ‘rights,

privileges, or immunities.’” Id. For example, it has

“refused to limit the phrase to ‘personal’ rights as

opposed to ‘property’ rights.’” Id. (citing Lynch v.

Household Fin. Corp., 405 U.S. 538 (1972)).

Instead, the Court “give[s] full effect to [§ 1983’s]

broad language, recognizing that § 1983 provides a

remedy, to be broadly construed, against all forms of

official violation of federally protected rights.” Id.

(internal marks omitted); accord Livadas, 512 U.S. at

132. “A broad construction of § 1983 is compelled by

the statutory language, which speaks of deprivations

of ‘any rights, privileges, or immunities secured by the

Constitution and laws.’” Dennis, 498 U.S. at 445

(internal footnote omitted). Accordingly, the Court

does “‘not lightly conclude that Congress intended to

preclude reliance on § 1983 as a remedy’ for the

5

deprivation of a federally secured right,” and does so

only when the text and structure of a statute require

such a reading. Wright v. City of Roanoke Redev. &

Hous. Auth., 479 U.S. 418, 423–24 (1987) (quoting

Smith v. Robinson, 468 U.S. 992, 1012 (1984)).

1. There is no exception to the § 1983 right of

action for Spending Clause laws.

Pursuant to the Spending Clause, Congress is

empowered to enact legislation “to lay and collect

Taxes, Duties, Imposts, and Excises, to pay the Debts

and provide for the common Defence and general

Welfare of the United States.” U.S. Const. art. I, § 8,

cl. 1. A Spending Clause enactment takes the form of

a bill passed by both Houses of Congress and

presented to the President, and Article I expressly

provides that such a bill “become[s] a Law” when it is

signed by the President, not signed within ten days of

presentment, or passed over the President’s veto. Id.

§ 7, cl. 2. And the Necessary and Proper Clause

expressly provides that all of the powers assigned to

Congress by § 8, including the Spending Power, are to

be “carr[ied] into Execution” by making “Laws.” Id.

§ 8, cl. 18 (granting Congress the power “[t]o make all

Laws which shall be necessary and proper for carrying

into Execution the foregoing Powers”). In addition, the

Court has recognized that Spending Clause statutes

preempt conflicting state laws under the Supremacy

Clause, which makes “Laws of the United States” “the

supreme Law of the Land,” U.S. Const. art. VI, cl. 2.

See, e.g., Dalton v. Little Rock Family Planning Servs.,

516 U.S. 474, 478 (1996); Lawrence Cty. v. LeadDeadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257–58

(1985). Thus, legislation enacted by Congress

pursuant to its Spending Clause power is a federal

6

“law,” just as any other legislation enacted by

Congress is a federal law.

That some Spending Clause laws are “‘much in the

nature of a contract’”—because some persons or

entities may avoid their requirements by declining

funds—does not alter the conclusion that a law

enacted pursuant to Congress’s Spending Power is a

federal “statute[]” that “may be enforced.” Cummings

v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562,

1568 (2022) (quoting Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981)).2 Indeed, the Court

has rejected the argument that a Spending Clause law

is merely “a bilateral contract.” Bennett v. Kentucky

Dep’t of Educ., 470 U.S. 656, 669 (1985). “Unlike

normal contractual undertakings, federal grant programs originate in and remain governed by statutory

provisions expressing the judgment of Congress concerning desirable public policy.” Id.

Because Spending Clause laws are federal laws,

they fit comfortably within the plain meaning of the

phrase “and laws” in § 1983. See Thiboutot, 448 U.S.

at 4 (stating that there are “no modifiers” in the

statutory text that limit the phrase “and laws”).

Indeed, Thiboutot itself involved a Spending Clause

law, though the opinion did not address an argument

that the source of authority for Congress’s enactment

of the law placed it outside § 1983’s scope. And since

––––––––––––––––––––––––

Not all Spending Clause enactments involve conditions

imposed on State funding recipients or private intermediaries.

For example, Title XVI of the Social Security Act provides

supplemental security income (SSI) for the aged, blind, and

disabled. The SSI benefits are provided directly to the SSI

program’s eligible beneficiaries, who have the right under law to

receive such benefits. See 42 U.S.C. § 1381a.

2

7

Thiboutot, this Court has twice explicitly held that

rights conferred by Spending Clause laws are within

the scope of the express right of action in § 1983: In

Wright, this Court held that rights provided to

tenants under a rent-ceiling provision of an

amendment to the Housing Act of 1937, enacted

pursuant to Congress’s Spending Clause authority,

were enforceable under § 1983. 479 U.S. at 432. And

in Wilder, this Court held that a reimbursement

provision of an amendment to the Medicaid Act,

another Spending Clause statute, “creates a right

enforceable by health care providers under § 1983.”

496 U.S. at 509.

2. A Spending Clause law creates a right

enforceable under § 1983 if the law unambiguously confers that right.

The relevant question under this Court’s

precedents is not whether the Spending Clause is a

“law,” but whether that law confers a “right” within

the meaning of the phrase “rights, immunities, and

privileges” in § 1983. Only “an unambiguously conferred right” can “support a cause of action brought

under § 1983.” Gonzaga Univ. v. Doe, 536 U.S. 273,

283 (2002); Blessing v. Freestone, 520 U.S. 329, 341

(1997) (stating that “the provision giving rise to the

asserted right must be couched in mandatory, rather

than precatory, terms”); see also Rancho Palos Verdes

v. Abrams, 544 U.S. 113, 120 (2005) (“To sustain

a § 1983 action, the plaintiff must demonstrate that

the federal statute creates an individually enforceable

right in the class of beneficiaries to which he

belongs.”).

In addition, if a Spending Clause law establishes a

substantive, individual right, “there is only a

8

rebuttable presumption that the right is enforceable

under § 1983,” Rancho Palos Verdes, 544 U.S. at 120

(quoting Blessing, 520 U.S. at 341), which “may [be]

defeat[ed] … by demonstrating that Congress did not

intend that remedy for a newly created right,” id.

Consistent with this Court’s longstanding insistence

that congressional “intent” in the abstract lacks legal

consequences unless it is manifested in the text and

structure of a statute, see Oklahoma v. Castro-Huerta,

142 S. Ct. 2486, 2496–97 (2022), “[e]vidence of such

congressional intent may be found directly in the

statute creating the right, or inferred from the

statute’s creation of a ‘comprehensive enforcement

scheme that is incompatible with individual

enforcement under § 1983,’” Rancho Palos Verdes, 544

U.S. at 120.

Where this Court has concluded that a Spending

Clause statute was not enforceable under § 1983, it

has done so because the Court’s analysis of the

statute’s text and structure revealed that the statute

did not unambiguously confer a substantive,

individual right. See Gonzaga, 536 U.S. at 287

(concluding that the nondisclosure provisions of the

Family Educational Rights and Privacy Act “fail to

confer enforceable rights”); Blessing, 520 U.S. at 344

(concluding that the “substantial compliance”

provision of Title IV-D of the Social Security Act “does

not give rise to individual rights”); Suter v. Artist M.,

503 U.S. 347, 363 (1992) (concluding that the

“reasonable efforts” provision of the Adoption

Assistance and Child Welfare Act “does not

unambiguously confer an enforceable right”). These

decisions have not expressed any doubt over the

inclusion of Spending Clause laws within the scope

of § 1983’s express right of action. To the contrary, the

9

Court affirmed in each that violations of rights

established by Spending Clause statutes can come

within the scope of the § 1983 cause of action, so long

as the Spending Clause statute, as evidenced through

the statutory text and structure, unambiguously

confers an individual right. See Gonzaga, 536 U.S. at

290; Blessing, 520 U.S. at 341; Suter, 503 U.S. at 357.

Pointing to the characterization of Spending

Clause laws as akin to contractual undertakings,

Petitioners contend that rights conferred by Spending

Clause laws are not “‘secured’ … by any ‘law,’ but only

by the contract between the recipient and the United

States.” Pet. Br. 18 (quoting David E. Engdahl, The

Spending Power, 44 Duke L.J. 1, 104 (1994)).

However, although a funding recipient’s acceptance of

federal funds may trigger the recipient’s obligation to

comply with conditions attached to those funds, it is

the statute itself that creates those conditions and, in

some cases, confers corresponding rights against the

funding recipient on individuals. See Blessing, 520

U.S. at 341 (asking “whether a particular statutory

provision gives rise to a federal right”). Therefore, it is

the law, and not any contractual undertaking, that

provides the substantive right within the scope of the

§ 1983 cause of action.

B. The express right of action in § 1983 does

not require a separate right of action in

the federal law sought to be enforced.

1. Section 1983 itself does not provide substantive

rights; it “merely provides a mechanism for enforcing

individual rights ‘secured’ elsewhere, i.e., rights

independently ‘secured by the Constitution and laws’

of the United States.” Gonzaga, 536 U.S. at 282. Thus,

the phrase “secured by” in the § 1983 right of action

10

for the deprivation of “rights … secured by the

Constitution and laws of the United States” refers to

the protection of a substantive right by the

Constitution or federal law, not the provision of a

right of action for the enforcement of the

constitutional or federal right.

The ordinary meaning of “secured” in § 1983 is that

a law or constitutional provision “secures” a right if,

as a substantive matter, it “guarantees” that a person

has the right. Dictionaries around the time of the

enactment of § 1983 reflect this meaning of the term.

See Noah Webster, An American Dictionary of the

English Language 1193 (1875) (defining “secure” as

“to make certain” or “to assure”); Noah Webster, An

American Dictionary of the English Language, vol. II,

at 66 (1828) (defining “secured” as “[e]ffectually

guarded or protected” or “made certain”). Likewise, as

the Court has noted, “[t]he preamble of the

Constitution, proclaiming the establishment of the

Constitution in order to ‘secure the Blessings of

Liberty’, uses the word ‘secure’ in the sense of ‘protect’

or ‘make certain’.” Chapman v. Houston Welfare

Rights Org., 441 U.S. 600, 613 n.29 (1979).3

Under this meaning of the term “secure,” the

source of the substantive right—here, the Spending

Clause law—need not create a remedy for its violation

in order to “secure” it. Rather, a right is “secured”

under a federal law, and thus within the scope of the

private right of action provided in § 1983, if “a statute

confers an individual right.” Gonzaga, 536 U.S. at 285;

see also Blessing, 520 U.S. at 340 (stating that § 1983

––––––––––––––––––––––––

Professor Engdahl, whom Petitioners cite, construes the

term “secured” similarly. See Engdahl, 44 Duke L.J. at 104

(equating “secures” with “makes … obligatory”).

3

11

“safeguards certain rights conferred by federal

statutes”). Indeed, the Court affirmed that principle

just last term. See Vega v. Tekoh, 142 S. Ct. 2095, 2107

n.6 (2022) (stating that “[i]f a § 1983 plaintiff

demonstrates that the federal statute creates an

individually enforceable right in the class of

beneficiaries to which he belongs, this gives rise to a

rebuttable presumption that the right is enforceable

under § 1983” (cleaned up, emphasis added)).

Petitioners urge a contrary view, suggesting that

the term “secured” refers to whether a federal law that

creates a right also provides a private right of action.

See Pet. Br. 22–23 (asserting that unless “the statute

expressly authorizes private parties to enforce

obligations incurred for their benefit,” “it cannot be

said … that Spending Clause legislation ‘secures’ the

right of a private citizen to compel a state to make

good on its statutory obligations”); see also id. at 36–

37 (suggesting that the right that must be “secured”

by the underlying source of law is the right of action

as opposed to the substantive right that the action

vindicates). Petitioners cite no authority supporting

that view of what § 1983 means when referring to

rights “secured by” the Constitution and laws.

Moreover, Petitioners’ view that a law or

constitutional provision “secures” a right only if it

creates a right of action would render § 1983

superfluous because Ҥ 1983 merely provides a

mechanism for enforcing individual rights ‘secured’

elsewhere.” Gonzaga, 536 U.S. at 285. The suggestion

that Congress needs to have affirmatively created a

right of action twice—once in § 1983 and again in the

Spending Clause law—fails to respect the right of

action that Congress created § 1983. Contrary to

requiring that Congress affirmatively provide a

12

second right of action in the Spending Clause statute,

this Court has stated that the implication of the

express right of action in § 1983 is just the opposite:

“Because § 1983 provides an ‘alternative source of

express congressional authorization of private suits,’”

the Court “recognize[s] an exception to the general

rule that § 1983 provides a remedy for violation of

federal statutory rights only when Congress has

affirmatively withdrawn the remedy.” Wilder, 496

U.S. at 509 n.9 (emphasis added); see also Golden

State Transit Corp., 493 U.S. at 107 (burden on

defendant to show that Congress has withdrawn

§ 1983 remedy).

Further, an interpretation that “secured” requires

the provision of a right of action would sharply limit,

if not eliminate, the availability of § 1983 for

violations of constitutional rights. The Constitution

itself, though it creates substantive rights, does not

provide express rights of action (or in most cases even

implied ones) to protect those rights. See Egbert v.

Boule, 142 S. Ct. 1793, 1802 (2022). It is well-settled,

however, that constitutional rights are enforceable

under § 1983. See, e.g., Dennis, 498 U.S. at 445

(stating that the Court has “rejected attempts to limit

the types of constitutional rights that are

encompassed within the phrase ‘rights, privileges, or

immunities’”).

2. The suggestion that only Spending Clause laws

that include rights of action are enforceable under

§ 1983 conflates the question whether a Spending

Clause statute creates a substantive right potentially

subject to judicial enforcement with the question

whether Congress has conferred a private right of

action, which is expressly supplied in § 1983 when

such a right exists. Cf. Gomez-Perez v. Potter, 553 U.S.

13

474, 483 (2008) (stating that “the question whether a

statute confers a private right of action” is

“analytically distinct” from “the question whether the

statute’s substantive prohibition reaches a particular

form of conduct”).

Throughout their brief, Petitioners characterize

the question presented as whether to “imply” a right

of action under a Spending Clause statute. See, e.g.,

Pet. Br. 3 (stating that the Court “should now hold

that Spending Clause statutes do not give rise to

private rights of action under Section 1983”); id. at 11

(discussing “inferring private rights of action from

Spending Clause legislation”); id. at 20 (referencing

“the question of private rights of action under

Spending Clause statutes pursuant to Section 1983”);

id. at 26 (discussing “implying private rights of action

in Spending Clause statutes”).4 That is not the right

question. When a plaintiff sues under § 1983, the

right of action is already expressly supplied by § 1983.

Accordingly, whether a right of action exists under the

Spending Clause law is irrelevant because the

plaintiff’s lawsuit is brought pursuant to the express

§ 1983 right of action. As this Court has explained,

“plaintiffs suing under § 1983 do not have the burden

of showing an intent to create a private remedy

because § 1983 generally supplies a remedy for the

vindication of rights secured by federal statutes.”

Gonzaga, 536 U.S. at 284. Under § 1983 and this

Court’s precedents construing its language, the

––––––––––––––––––––––––

4 In addition, Alexander v. Sandoval, 532 U.S. 275 (2001),

and Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320

(2015), both of which Petitioners repeatedly cite, examine

whether the statutes at issue provided implied rights of action,

not whether they conferred substantive rights enforceable

through the express right of action provided in § 1983.

14

determinative question is whether the law creates a

substantive, individual right. If so, the deprivation of

that right is presumptively within the § 1983 right of

action. Vega, 142 S. Ct. at 2107 n.6 (citing Rancho

Palos Verdes, 544 U.S. at 120).

To be sure, the Court observed in Gonzaga that its

decisions limiting the availability of implied rights of

action are not entirely “separate and distinct from [its]

§ 1983 cases.” 536 U.S. at 283. Both reflect the same

concern about recognizing private rights of action

when the statutory language and structure do not

manifest congressional intent to do so. See id. at 285–

86. But in § 1983 cases, that question is

presumptively answered when a statute’s “text and

structure” show that the statute “create[s] new

individual rights.” Id. at 286. In such circumstances,

§ 1983 unambiguously provides a right of action for

deprivation of those rights by a state actor, and no

further manifestation of congressional intent to create

a private remedy is necessary. Id. at 284.

II. The contract-law analogy is inapplicable

here because § 1983 supplies an express

right of action.

A. This Court employs the contract-law

analogy when the statute lacks clarity on

the type of conduct or remedy for which a

funding recipient may be liable.

In interpreting the scope of a funding recipient’s

liability under a Spending Clause law, this Court has

analogized Spending Clause laws to contracts.

“[L]egislation enacted pursuant to the spending power

is much in the nature of a contract: in return for

federal funds, the [recipients] agree to comply with

federally imposed conditions.” Cummings, 142 S. Ct.

15

at 1568 (2022) (alteration in original) (quoting

Pennhurst, 451 U.S. at 17). Because “Spending Clause

legislation operates based on consent,” “the legitimacy

of Congress’ power to enact Spending Clause

legislation rests … on whether the recipient

voluntarily and knowingly accepts the terms of that

contract.” Id. at 1570 (cleaned up). “There can … be no

knowing acceptance if a State is unaware of the

conditions or is unable to ascertain what is expected

of it.” Pennhurst, 451 U.S. at 17. Accordingly, “when

Congress attaches conditions to a State’s acceptance

of federal funds, the conditions must be set out

‘unambiguously,’” so that the State has “clear notice”

of those conditions. Arlington Cent. Sch. Dist. Bd. of

Educ. v. Murphy, 548 U.S. 291, 296 (2006).

The contract-law analogy, however, is just that: an

analogy. Indeed, the Court has explicitly rejected the

notion that the law of contract should be adopted

“wholesale” for Spending Clause statutes. Cummings,

142 S. Ct. at 1574. And it “ha[s] been careful not to

imply that all contract-law rules apply to Spending

Clause legislation.” Barnes v. Gorman, 536 U.S. 181,

186 (2002); id. at 188 n.2 (stating that the Court

“do[es] not imply … that suits under Spending Clause

legislation are suits in contract, or that contract-law

principles apply to all issues that they raise”);

Cummings, 142 S. Ct. at 1573 (cautioning that “[the

Court’s] cases do not treat suits under Spending

Clause legislation as literal ‘suits in contract,’

subjecting funding recipients to whatever ‘governing

rules’ some general federal law of contracts would

supply” (internal citation omitted)).

The Court has applied the contract-law analogy

only in narrow circumstances “as a potential

limitation on liability” for funding recipients,

16

Cummings, 142 S. Ct. at 1573 (citation omitted and

emphasis removed), in assessing the “scope of

conduct” for which a recipient might be held liable and

the “scope of available remedies,” id. at 1570 (citations

omitted). For example, in Gebser v. Lago Vista

Independent School District, the Court concluded that

a funding recipient may not be held liable for damages

under Title IX of the Education Amendments of 1972

solely because of acts of teacher-on-student sexual

harassment that it did not know (and, indeed, could

not have known) would place it in violation of Title

IX’s prohibitions, but may be held liable for deliberate

indifference to known acts of harassment. 524 U.S.

274, 277 (1998). Similarly, in Davis v. Monroe County

Board of Education, the Court stated that “private

damages actions [under Title IX] are available only

where recipients of federal funding had adequate

notice that they could be held liable for the conduct at

issue.” 526 U.S. 629, 640 (1999). Accordingly, the

Court limited a school board’s liability for student-onstudent sexual harassment to cases involving deliberate indifference to known acts. Id. at 633.

The contract-law analogy also has been applied to

limit remedies under Spending Clause statutes where

the availability of a right of action was clearly

established but the scope of the remedy was

uncertain. In Barnes v. Gorman, the Court held that

punitive damages were not an available remedy under

Title VI of the Civil Rights Act of 1964 (and,

accordingly, under section 202 of the Americans with

Disabilities Act (ADA) and section 504 of the

Rehabilitation Act of 1973, both of which provide

remedies coextensive with Title VI). 536 U.S. at 189.

The Court observed that although the availability of a

private right of action under Title VI was “beyond

17

dispute” in light of congressional ratification of this

Court’s decisions finding an implied right of action

under the statute, id. at 185 (citation omitted), “[i]t is

less clear what remedies are available in such a suit,”

id. To resolve that uncertainty, the Court applied the

contract-law analogy, explaining that “[a] funding

recipient is generally on notice that it is subject not

only to those remedies explicitly provided in the

relevant legislation, but also to those remedies

traditionally available in suits for breach of contract.”

Id. at 187. Because “punitive damages … are

generally not available for breach of contract,” the

Court concluded that punitive damages were not

available under Title VI. Id.

Similarly, in Cummings v. Premier Rehab Keller,

the Court held that another category of damages—

emotional distress damages—was not available under

Title VI, Title IX, § 504 of the Rehabilitation Act, and

§ 1557 of the Patient Protection and Affordable Care

Act. 142 S. Ct. at 1576. The Court explained that “the

statutes at issue are silent as to available remedies.”

Id. at 1571. Accordingly, the Court applied the

contract-law analogy, explaining that where “it is less

clear what remedies are available,” id. at 1570

(quoting Barnes, 536 U.S. at 185), the Court’s

“consideration of whether a remedy qualifies as

appropriate relief must be informed by the way

Spending Clause ‘statutes operate,’” id. (quoting

Gebser, 524 U.S. at 286). Because “a funding recipient

is aware that, for breaching its Spending Clause

‘contract’ with the Federal Government, it will be

subject to the usual contract remedies in private

suits,” and “[i]t is hornbook law that ‘emotional

distress is generally not compensable in contract,’” the

Court concluded that emotional distress damages

18

were not available under the statutes. Id. at 1571–72.

“[W]e … cannot treat federal funding recipients as

having consented to be subject to damages for

emotional distress,” reasoned the Court. Id. at 1572.

In short, where the Court has applied the contractlaw analogy, it has done so because the statute was

not clear on the particular conduct prohibited or the

type of relief available in a private right of action.

Because the text of the statute did not itself provide

the “clear notice” required in Spending Clause cases,

Arlington, 548 U.S. at 296, the Court looked to

contract law to assess whether the funding recipient

was on notice of the disputed condition attached to its

acceptance of federal funds. Conversely, where there

is no doubt as to the type of conduct prohibited or the

remedy available under a Spending Clause law, there

is no basis to analogize to contract law.

B. The contract-law analogy is inapplicable

to § 1983 claims.

Although this Court has used the contract analogy

to resolve uncertainty about the scope of both

substantive obligations under Spending Clause

statutes and the relief available in private rights of

action to enforce those obligations, the Court has not

analogized to contract law where Congress has spoken

with clarity as to the existence of a private right of

action. Amicus has found no case in which the Court

applied the contract-law analogy to bar a plaintiff

from asserting a private damages action where a

Spending Clause statute unambiguously conferred

substantive rights on the plaintiff and Congress had

provided an express right of action to protect such

rights—either in the Spending Clause statute itself or

in § 1983.

19

That the Court has not applied the contract-law

analogy in such cases reflects that the analogy’s

rationale does not apply to statutes like § 1983 that

provide an express right of action. As explained above,

the reason for analogizing to contract law is to

consider whether the funding recipient had “clear

notice” of the conditions attached to its acceptance of

federal funds. Arlington, 548 U.S. at 296. Where a

Spending Clause statute unambiguously confers a

substantive right, the text of § 1983 and this Court’s

precedents provide clear notice to state actors of their

potential liability for § 1983 claims by private

parties—just as the text of an express right of action

within a Spending Clause law provides notice of

potential liability for claims within its scope. As this

Court has explained repeatedly, a cause of action

under § 1983 “remains a generally and presumptively

available remedy for claimed violations of federal

law.” Livadas, 512 U.S. at 133.

Moreover, none of the limited circumstances in

which the Court has applied the contract-law

analogy—to evaluate the type of conduct or damages

for which a funding recipient is liable in the context of

a statute where such issues are unclear—is present in

cases where § 1983 is invoked to redress violations of

rights unambiguously conferred by Spending Clause

statutes. Unlike in Gebser and Davis, the question

whether a statute imposes damages liability for the

kind of conduct that is alleged by the plaintiff is not at

issue in such cases. See Gebser, 524 U.S. at 287–88

(applying the contract-law analogy to determine

whether the alleged misconduct was within the scope

of Title IX); Davis, 526 U.S. at 639–40 (same).

In addition, here there is no doubt as to the type of

remedy that is available for a § 1983 claim, as there

20

was under the statutes at issue in Barnes and

Cummings. See Barnes, 536 U.S. at 189 (holding that

punitive damages were not available); Cummings, 142

S. Ct. at 1576 (holding that emotional distress

damages were not available). It is well-settled

that § 1983 authorizes money damages and attorney’s

fees for violations of statutory or constitutional rights.

Cf. Rancho Palos Verdes, 544 U.S. at 123 (stating that

a “successful plaintiff may recover not only damages

but reasonable attorney’s fees and costs” (citing

Thiboutot, 448 U.S. at 9)); see also Smith v. Wade, 461

U.S. 30, 56 (1983) (holding that punitive damages may

be available under § 1983). Thus, unlike in Barnes

and Cummings, because there is no question what

remedies are authorized by § 1983, there is no basis to

apply the contract-law analogy in the context of

a § 1983 claim. See Cummings, 142 S. Ct. at 1570

(applying the contract-law analogy to assess the

remedy because “it is less clear what remedies are

available” under the Spending Clause statutes

(quoting Barnes, 536 U.S. at 185)).

C. The third-party beneficiary theory urged

by Petitioners is unfounded.

Petitioners contend that the contract-law analogy

should be extended to provide that the rights that

Spending Clause statutes grant to individuals who

are not funding recipients are not judicially

enforceable because third-party beneficiaries of

contracts could not sue to enforce the contracts at the

time § 1983 was enacted. Even if Petitioners’ account

of 19th-century contract law were correct (but see

Resp. Br. 28–31; U.S. Amicus Br. 18–21), their

reasoning is unsound.

21

Taken seriously, Petitioners’ reasoning would

suggest that Congress lacks authority to provide even

express private rights of action for Spending Clause

laws, because Petitioners’ argument seems to

presume that the contractual nature of the Spending

Clause (which was obviously enacted before § 1983)

imposes a purported limitation on Congress’s power to

authorize private lawsuits under § 1983. Accordingly,

Petitioners assert that “when Section 1983 was

enacted, private suits to enforce government contracts

are almost always verboten.” Pet. Br. 11; id. at 13

(similar); id. at 18 (referencing “the even stronger

common law rule barring third parties from suing to

enforce government contracts”). Although the logical

implication of Petitioners’ argument would seem to be

that the Spending Clause’s contractual nature forbids

enforcement by third parties of requirements imposed

on funding recipients by Spending Clause laws, even

Petitioners disavow that consequence: They

acknowledge that courts “should recognize” the

“causes of action and remedies expressly provided for

in Spending Clause legislation.” Id. at 25.

Petitioners’ rejection of the logical consequence of

their argument is compelled by this Court’s

precedents, which leave no doubt that private rights

of action (express or implied) created by Spending

Clause laws may be asserted by “third-party

beneficiaries” of those statutes. For example, the

Individuals with Disabilities Education Act provides

certain aggrieved parties under the Act with an

express right of action. 20 U.S.C § 1415(i)(2). Title VI

and Title IX provide implied rights of action where

“private individuals may sue to enforce both statutes.”

Cummings, 142 S. Ct. at 1569 (quoting Alexander, 532

U.S. at 280). Title II of the ADA provides a private

22

right of action for money damages by expressly

incorporating the right of action recognized by this

Court at the time of the ADA’s adoption, see United

States v. Georgia, 546 U.S. 151, 154 (2006) (citing 42

U.S.C. § 12133); Barnes, 536 U.S. at 185 (same), and

the Rehabilitation Act and Affordable Care Act

likewise provide a private right of action by expressly

incorporating Title VI rights and remedies,

Cummings, 142 S. Ct. at 1569 (citing 29 U.S.C.

§ 794a(a)(2); 42 U.S.C. § 18116(a)).

Moreover, the third-party beneficiary theory urged

by Petitioners would suggest that a host of this

Court’s decisions in Spending Clause cases were

incorrectly decided. For example, in Cummings, the

plaintiff was, under Petitioners’ theory, a “third-party

beneficiary” of the Spending Clause statutes at issue.

The Court recognized that “[n]one of these statutes

expressly provides victims of discrimination a private

right of action to sue the funding recipient in federal

court.” Id. However, the Court did not suggest that the

plaintiff could not sue for damages to enforce

requirements imposed on a funding recipient. The

Court said just the opposite: “[I]t is ‘beyond dispute

that private individuals may sue to enforce’ the

antidiscrimination statutes we consider here.” Id. at

1569–70 (quoting Barnes, 536 U.S. at 185).

Petitioners’ assertion that § 1983 lawsuits brought

by “third-party beneficiaries” “scramble[] a state’s

expectations” because “states … have no way to

anticipate—or budget for—possible litigation costs or

jury awards,” and damages awards “may” circumvent

state damages caps, also proves too much. Pet. Br. 25–

26; see also id. at 3 (stating that “[i]t is doubtful that

third-party enforcement actions, with sky’s-the-limit

damages, are among the commitments that

23

contracting states expected to shoulder”). That same

argument would apply to any damages action brought

pursuant to statutes with express rights of action.

In any event, Petitioners’ assertion rings hollow in

the context of § 1983 lawsuits for violations of rights

conferred by Spending Clause laws. Funding

recipients have long been aware that, under Wright

and its progeny, they may be subject to liability for

violations of rights conferred by Spending Clause

laws. Judicial precedent provides states with notice of

their potential liability. See, e.g., Arlington, 548 U.S.

at 300–03 (examining this Court’s precedents to determine whether a state had “unambiguous notice” of

liability for expert fees and finding that it did not).

Moreover, where the funding recipient infringes

rights expressly granted by a Spending Clause law,

“th[e] notice problem does not arise” because

“Congress surely did not intend for federal moneys to

be expended to support the intentional actions it

sought by statute to proscribe.” Franklin v. Gwinnett

Cty. Pub. Sch., 503 U.S. 60, 74–75 (1992). Because

states are on notice that they may be subject to § 1983

liability for violations of the rights that they agreed to

provide as a condition of receiving federal funds, state

expectations are not “scrambled” when they are faced

with private lawsuits claiming violations of those

rights.

Finally, although Petitioners note that their thirdparty beneficiary theory was “not raised in early

cases” and has not been “squarely addressed” by the

Court, Pet. Br. 3, the Court has previously been

presented with the argument and declined to adopt it.

In Gonzaga, the petitioners, like Petitioners here,

invoked the contract-law analogy and urged the Court

to hold that third-party beneficiaries could not sue to

24

enforce Spending Clause laws. See Pet. Br., Gonzaga,

2002 WL 332055, at *39–42 (U.S. Feb. 25, 2002); Pet.

Reply Br., Gonzaga, 2002 WL 538062, at *16–20 (U.S.

Apr. 8, 2002). The respondents opposed that position,

as did the United States. See Resp. Br., Gonzaga, 2002

WL 485131, at *46–49 (U.S. Mar. 27, 2002); U.S.

Amicus Br., Gonzaga, 2002 WL 354729, at *18–23

(U.S. Feb. 22, 2002). The Court’s ultimate decision,

though it did not mention the third-party beneficiary

argument, is flatly inconsistent with it: The Court

repeatedly made clear that violations of rights

granted by Spending Clause laws are enforceable by

private parties under § 1983, so long as the rights are

“unambiguously conferred.” Gonzaga, 536 U.S. at 283.

In short, it remains “beyond dispute” that

Congress can authorize beneficiaries of a Spending

Clause statute to sue funding recipients for damages

based on violations of rights granted by the law.

Cummings, 142 S. Ct. at 1569 (quoting Barnes, 536

U.S. at 185). Whether the express authority to sue is

provided by the Spending Clause legislation itself or

by § 1983 makes no difference.

CONCLUSION

For the foregoing reasons, the decision below

should be affirmed.

25

Respectfully submitted,

WENDY LIU

Counsel of Record

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Counsel for Amicus Curiae

September 2022