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

Supreme Court briefSep 23, 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,

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 CONSTITUTIONAL ACCOUNTABILITY

CENTER, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, AND ACLU OF INDIANA AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

1915 15th St. NW

Washington, D.C. 20005

KENNETH J. FALK

ACLU OF INDIANA

1031 E. Washington St.

Indianapolis, IN 46202

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th St. NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

September 23, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

Petitioners’ Argument that Spending

Clause Statutes Categorically Cannot

Give Rise to a Section 1983 Action

Cannot Be Reconciled with the Text and

History of Section 1983 ..............................

There Is No Support for Petitioners’

Argument that Spending Clause Statutes

Cannot Create Judicially Enforceable

Private Rights ............................................

CONCLUSION .....................................................

II.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Barnes v. Gorman,

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

4, 17, 19

Blessing v. Freestone,

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

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ........................

8, 16

Conn. Nat. Bank v. Germain,

503 U.S. 249 (1992) ............................

Chapman v. Houston Welfare Rights Org.,

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

Cummings v. Premier Rehab Keller,

P.L.L.C,

142 S. Ct. 1562 (2022) ...................... 4, 17, 18,19

Dennis v. Higgins,

498 U.S. 439 (1991) ............................... 2, 8, 9

Golden State Transit Corp. v. City of Los

Angeles,

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

Gonzaga Univ. v. Doe,

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

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ............................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Hernández v. Mesa,

140 S. Ct. 735 (2020) ..............................

Hughes v. Oklahoma,

441 U.S. 322 (1979) ................................

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ................................ 2, 6, 7

Maine v. Thiboutot,

448 U.S. 1 (1980) .................................... 2, 6, 16

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) ................................

McNeese v. Bd. of Educ.,

373 U.S. 668 (1963) ................................

Mitchum v. Foster,

407 U.S. 225 (1972) ...........................

3, 12, 14

Monell v. NYC Dep’t of Soc. Servs.,

436 U.S. 658 (1978) ................................

Patsy v. Bd. of Regents,

457 U.S. 496 (1982) ................................ 12, 14

Pennhurst State School & Hospital v.

Halderman,

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

5, 21

Rehberg v. Paulk,

566 U.S. 356 (2012) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Ross v. Blake,

578 U.S. 632 (2016) ................................

Rubin v. United States,

449 U.S. 424 (1981) ................................

Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) ................................

Timbs v. Indiana,

139 S. Ct. 682 (2019) ..............................

United States v. Mosley,

238 U.S. 383 (1915) ................................

United States v. Price,

383 U.S. 787 (1966) ................................ 2, 6, 7

Wilder v. Virginia Hospital Ass’n

496 U.S. 498 (1990) .............................. 9, 15, 20

Wright v. City of Roanoke Redevelopment &

Housing Authority,

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

9, 14

Statutes, Legislative Materials, and Constitutional

Provisions

18 U.S.C. § 241 .........................................

28 U.S.C. § 1343 .......................................

42 U.S.C. § 1395i-3(c) ...............................

TABLE OF AUTHORITIES – cont’d

Page(s)

42 U.S.C. § 1396r(c).................................. passim

42 U.S.C. § 1396r(h) .................................

42 U.S.C. § 1437a

(1982 ed. & Supp. III) ...........................

42 U.S.C. § 1983 ....................................... 2, 5, 10

Cong. Globe, 42d Cong., 1st Sess.

(1871) ..................................................... 2, 12, 14

Cong. Globe, 39th Cong., 1st Sess.

(1866) ..................................................... 3, 11, 12

Books, Articles, and Other Authorities

Abbe R. Gluck, Our [National] Federalism,

123 Yale L.J. 1996 (2014) ......................

Brief for Petitioner, Gonzaga Univ. v. Doe,

536 U.S. 279 (2002) (No. 01-679), 2002

WL 332055..............................................

Douglas Laycock & Richard L. Hasen,

Modern American Remedies (5th ed.

2019) .......................................................

Eric Foner, Reconstruction: America’s Unfinished Revolution, 1873-1877 (Henry

Steel Commager & Richard B. Morris

eds., updated 2014) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Terry Jean Seligmann, Muddy Waters: The

Supreme Court and the Clear Statement

Rule for Spending Clause Legislation, 84

Tul. L. Rev. 1067 .................................... 18, 19

INTEREST OF AMICI CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in protecting meaningful access to the courts

and ensuring adherence to the text and history of important federal statutes, and therefore has an interest

in this case.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly two million members and supporters dedicated

to the principles of liberty and equality embodied in

the Constitution. Since its founding more than 100

years ago, the ACLU has appeared before this Court

in numerous cases, both as direct counsel and as amicus curiae. The ACLU of Indiana is a statewide affiliate of the national ACLU.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Section 1983, a landmark statute dating to the Reconstruction era, provides a right to sue “[e]very person” who under color of state law or custom deprives

another person of “any rights, privileges, or

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici

or their counsel made a monetary contribution to its preparation

or submission.

immunities secured by the Constitution and laws” of

the United States. 42 U.S.C. § 1983. Despite this clear

text authorizing suits pursuant to all rights secured by

either the Constitution or other federal law, Petitioners urge this Court to create a sweeping exception for

suits bringing claims under one particular category of

federal statutes—those enacted pursuant to the Constitution’s Spending Clause. This Court should not do

so.

As this Court has explained, “[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 v. Higgins, 498 U.S. 439, 443 (1991); see also

Cong. Globe, 42d Cong., 1st Sess. App. 68 (1871) (Rep.

Shellabarger) (“As has been again and again decided

by your own Supreme Court of the United States, and

everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words

employed is uniformly given in construing such statutes.”). Because Section 1983’s text “attach[es] no

modifiers to the phrase [‘and laws’], the plain language

of the statute undoubtedly embraces” Respondent’s

claim under the Federal Nursing Home Reform Act

(FNHRA). Maine v. Thiboutot, 448 U.S. 1, 4 (1980).

This Court could end its analysis there, just as it has

done repeatedly in the face of previous attempts to

limit the scope of Section 1983 and other Reconstruction-era statutes containing the same broad language.

See, e.g., id.; Dennis, 498 U.S. at 451; Lynch v. Household Fin. Corp., 405 U.S. 538, 542 (1972); United

States v. Price, 383 U.S. 787, 800-01 (1966).

The history of Section 1983 further undermines

Petitioners’ argument that this Court should create an

atextual carve-out from that statute, precluding the

enforcement of certain rights based solely on the

constitutional provision authorizing the particular law

that created those rights. Congress enacted Section

1983 in the wake of the Civil War to “enforce the provisions of the Fourteenth Amendment against State

action.” Mitchum v. Foster, 407 U.S. 225, 240 (1972)

(quotation marks omitted). Crafted against the backdrop of the suppression of rights in the South, the

Fourteenth Amendment was designed to protect the

full range of substantive rights inherent in personal

liberty and to “restrain the power of the States and

compel them at all times to respect these great fundamental guarantees,” Cong. Globe, 39th Cong., 1st Sess.

2766 (1866). Given Section 1983’s drafters’ paramount

concern with protecting personal liberty, it would be

especially problematic to deny the statute’s protections

to individuals who claim violations of rights that implicate personal liberty, including the right to be free

from chemical restraints imposed for discipline or convenience rather than treatment, 42 U.S.C.

§§ 1395i-3(c)(1)(A)(ii), 1396r(c)(1)(A)(ii), and the right

not to be transferred or discharged unless certain criteria are met, id. §§ 1395i-3(c)(2)(A), 1396r(c)(2)(A). 2

Moreover, an atextual and categorical exemption from

Section 1983’s reach for a large class of rights would

vitiate the statute’s objective of protecting the supremacy of federal law by “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.” Mitchum, 407 U.S. at 239.

Faced with this overwhelming text, history, and

precedent supporting enforcement of all federal rights

through Section 1983, Petitioners argue that Spending

Clause statutes like FNHRA are somehow different

2 Section 1395i-3 and 1396r are identical. Hereinafter, this

brief will cite only Section 1396r.

because they are inherently incapable of creating privately enforceable rights. That argument suffers from

at least two fatal flaws.

First, to the extent that it is premised on the principle that Spending Clause legislation creates a contract-like relationship between the federal government and the states—one to which private individuals

are third-party beneficiaries who therefore should not

be permitted to bring enforcement suits—the argument fails to account for the fact that this contract law

analogy is merely an interpretive tool to aid in the process of statutory interpretation in cases where the

plain text of the statute does not answer the relevant

question. Indeed, all of this Court’s cases invoking

that analogy have done so in the face of statutory ambiguity, see, e.g., Barnes v. Gorman, 536 U.S. 181, 186

(2002) (where text of statute was silent on availability

of punitive damages, analogy to contract law invoked

to ascertain congressional intent); Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1571 (2022)

(same for emotional distress damages), and this Court

has been “careful not to imply that all contract-law

rules apply to Spending Clause legislation,” Barnes,

536 U.S. at 186. In short, while useful in certain cases,

the contract law analogy cannot be used to circumvent

the plain text of a statute.

Second, and relatedly, FNHRA itself exemplifies

why a categorical bar on enforcement of Spending

Clause statutes pursuant to Section 1983, without regard to the text of a particular statute, cannot possibly

be squared with Section 1983’s objective of protecting

federal rights. Unlike other Spending Clause statutes

where this Court has found only ambiguous rights-creating language, see, e.g., Gonzaga Univ. v. Doe, 536

U.S. 273, 279 (2002) (discussing the Family Educational Rights and Privacy Act of 1974), FNHRA could

not possibly be more explicit in its textual commitment

to ensuring that a “nursing facility must protect and

promote the rights of each resident” enumerated in the

statute, 42 U.S.C. § 1396r(c)(1)(A) (emphasis added).

Moreover, Congress passed FNHRA years after this

Court established in Pennhurst State School & Hospital v. Halderman the requirement that Congress

“speak with a clear voice” and manifest an “unambiguous” intent to confer individual rights in Spending

Clause statutes, 451 U.S. 1, 17 (1981). Congress

plainly wrote FNHRA to comply with that mandate,

and this Court should not nullify its plan.

In sum, Petitioners’ argument that Section 1983

cannot be used to vindicate federal rights created by

Spending Clause statutes does violence to the text and

history of Section 1983 and would force this Court to

ignore the plain text of explicit rights-creating Spending Clause statutes like FNHRA. This Court should

affirm the judgment of the court below.

ARGUMENT

I. Petitioners’ Argument that Spending Clause

Statutes Categorically Cannot Give Rise to a

Section 1983 Action Cannot Be Reconciled

with the Text and History of Section 1983.

A. “Statutory interpretation, as we always say, begins with the text,” Ross v. Blake, 578 U.S. 632, 638

(2016), and “[w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial

inquiry is complete.’” Conn. Nat. Bank v. Germain,

503 U.S. 249, 254 (1992) (quoting Rubin v. United

States, 449 U.S. 424, 430 (1981)). The text of Section

1983 provides a right to sue “[e]very person” who, under color of state law or custom, deprives another person of “any rights, privileges, or immunities secured by

the Constitution and laws” of the United States. 42

U.S.C. § 1983. Based on that plain text alone, which

“embrace[s] ‘all of the Constitution and laws of the

United States,’” Lynch, 405 U.S. at 549 n.16 (quoting

Price, 383 U.S. at 797), this Court should reject Petitioners’ invitation to impose an atextual limitation on

the types of federal laws that can give rise to a Section

1983 action.

This straightforward interpretation of Section 1983

has been espoused by this Court before. Over forty

years ago, in Maine v. Thiboutot, this Court rejected

an argument similar to Petitioners’—one that sought

to limit the scope of Section 1983 actions to the enforcement of “civil rights or equal protection laws,” thus excluding the Social Security Act from Section 1983’s

reach. 448 U.S. at 6. This Court, however, declared

that “‘and laws,’ as used in § 1983, means what it says,

. . . . [g]iven that Congress attached no modifiers to the

phrase,” id. at 4, and it explicitly held “for the first

time that § 1983 actions may be brought against state

actors to enforce rights created by federal statutes as

well as by the Constitution,” Gonzaga, 536 U.S. at 279

(describing Thiboutot).

Petitioners do not ask this Court to overrule Thiboutot, yet their argument—that as a categorical matter, statutes enacted pursuant to the Constitution’s

Spending Clause can never give rise to rights enforceable in a Section 1983 action—is nearly impossible to

square with the straightforward textual reading of

Section 1983 in that case. If the words “and laws,” as

used in Section 1983, meant “all laws except those enacted pursuant to the Spending Clause,” there should

be at least some textual clues in the statutory scheme.

There are none.

In fact, this Court has searched for these sorts of

textual limitations many times before and repeatedly

come up empty-handed. Instead, in those opinions—

issued both before and after Thiboutot—this Court has

emphasized the importance of adhering to the unambiguous and expansive text of Section 1983 in the face

of arguments seeking to limit that statute’s scope. It

should do the same here.

Take the famous case of United States v. Price, decided just over a decade before Thiboutot and resulting

in the indictments of several local police officers who

murdered three civil rights workers in Mississippi during 1964’s Freedom Summer. Several of the men were

indicted under a Reconstruction statute enacted the

year before Section 1983, which barred “conspir[ing] to

injure, oppress, threaten, or intimidate any person in

any State, Territory, Commonwealth, Possession, or

District in the free exercise or enjoyment of any right

or privilege secured to him by the Constitution or laws

of the United States.” 18 U.S.C. § 241 (emphasis

added). The court below had held that Section 241 was

“confined to rights that are conferred by or ‘flow from’

the Federal Government, as distinguished from those

secured or confirmed or guaranteed by the Constitution,” and thus had dismissed all the indictments resting on the deprivation of rights in the latter category.

Price, 383 U.S. at 800. This Court resurrected the dismissed indictments, explaining that “[t]he language

of § 241 is plain and unlimited . . . embrac[ing] all of

the rights and privileges secured to citizens by all of

the Constitution and all of the laws of the United

States.” Id. Thus, Section 241 “should not be construed so as to deprive citizens of the United States of

the general protection which on its face [it] most reasonably affords.” Id. at 801 (quoting United States v.

Mosley, 238 U.S. 383, 388 (1915)).

A few years later, in Lynch v. Household Finance

Corp., a case involving Section 1983’s jurisdictional

counterpart which contains the same “rights,

privileges, or immunities” phrase, see 28 U.S.C.

§ 1343(3), this Court refused to limit that language to

“personal liberties,” as opposed to “proprietary rights,”

in a suit challenging a Connecticut law that allowed

for pre-judgment garnishment of bank accounts. 405

U.S. at 538. That conclusion rested primarily on the

plain text of the statutory provision, which failed to

“distinguish[] between personal and property rights.”

Id. at 543.

A decade after Thiboutot, in Dennis v. Higgins, this

Court again looked to the plain text of Section 1983 to

reject an attempt to exclude rights created by the Commerce Clause from the scope of rights protected by the

statute. This Court started from the premise that although “the ‘prime focus’ of § 1983 . . . was to ensure ‘a

right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto,’ . . . the Court has never restricted the

section’s scope to the effectuation of that goal.” Dennis, 498 U.S. at 444-45 (quoting Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 611 (1979)); cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020)

(“[T]he limits of the drafters’ imagination supply no

reason to ignore the law’s demands.”). Rather, this

Court has “given full effect to [Section 1983’s] broad

language, recognizing that § 1983 ‘provide[s] a remedy, to be broadly construed, against all forms of official violation of federally protected rights.’” Dennis,

498 U.S. at 445 (quoting Monell v. NYC Dep’t of Soc.

Servs., 436 U.S. 658, 700-01 (1978)).

This Court then rejected an argument much like

the one that Petitioners advance here with respect to

Spending Clause statutes: “that the Commerce Clause

merely allocates power between the Federal and State

Governments and does not confer ‘rights.’” Id. at 447.

Although there was “no doubt that the Commerce

Clause is a power-allocating provision,” this Court

noted that the Clause can operate in other fashions as

well, at times acting as “a substantive ‘restriction on

permissible state regulation’ of interstate commerce,”

id. at 447 (quoting Hughes v. Oklahoma, 441 U.S. 322,

326 (1979)), and “conferring a ‘right’ to engage in interstate trade free from restrictive state regulation,”

id. at 448. Accordingly, this Court refused to adopt a

categorical rule excluding all Commerce Clause claims

from enforcement via Section 1983.

And this Court has even relied on the plain text of

Section 1983 to reject arguments that other statutes

that, like FNHRA, were enacted pursuant to the Constitution’s Spending Clause, cannot be enforced in Section 1983 actions. In Wright v. City of Roanoke Redevelopment & Housing Authority, this Court concluded

that the Brooke Amendment to the Housing Act of

1937, 42 U.S.C. § 1437a (1982 ed. & Supp. III), could

be enforced by a tenant in a Section 1983 action because the Brooke Amendment created “enforceable

rights, privileges, or immunities within the meaning

of § 1983,” the text of which imposes no substantive

limits on the nature of those “rights, privileges, or immunities.” 479 U.S. 418, 423 (1987).

So too in Wilder v. Virginia Hospital Ass’n. In that

case, this Court permitted a Section 1983 lawsuit

brought by healthcare providers to enforce a reimbursement provision of the Medicaid Act that explicitly conferred concrete entitlements upon the plaintiffs. 496 U.S. 498, 522-23 (1990). Certainly, if there

were any indication in the text or history of Section

1983 that Congress did not intend the statute’s remedy

to extend to laws enacted pursuant to the Spending

Clause, this Court would have at least mentioned it in

Wright or Wilder. It did not.

Indeed, even in cases decided since Wilder that

have rejected the applicability of Section 1983 to certain Spending Clause statutes, this Court has never

countenanced an argument that there is a categorical

exemption to the enforcement of such statutes pursuant to Section 1983. Compare, e.g., Brief for Petitioner,

Gonzaga Univ. v. Doe, 536 U.S. 279 (2002) (No. 01679), 2002 WL 332055, at *40 (arguing that “[t]he Congress that enacted § 1983 . . . would not have regarded

Spending Clause legislation as conferring the right to

sue upon the third-party beneficiaries of the promises

made by the recipients of federal funds”), with Gonzaga, 536 U.S. at 287-91 (ruling for Petitioner that the

particular statute at issue did not authorize a Section

1983 action without categorically barring Section 1983

suits brought pursuant to Spending Clause laws); see

also id. at 280-86 (distinguishing without overruling

Wright and Wilder). To do so would directly undermine Section 1983’s plain text, which provides a right

to sue “[e]very person” who, under color of state law or

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

laws” of the United States. 42 U.S.C. § 1983 (emphasis

added).

B. While the plain text of Section 1983 alone is sufficient for this Court to reject Petitioners’ argument

that the statute cannot be used to enforce rights created by Spending Clause laws, the history of Section

1983 further reinforces this conclusion, particularly

when considered in the context of this case brought to

remedy deprivations of rights implicating personal liberty.

Perhaps the chief concern of the drafters of Section

1983 was the protection of personal liberty, as is evidenced by both Section 1983’s own history and the history of the Reconstruction Amendments that

immediately preceded the law’s enactment. The first

step taken by those Amendments was to erase the

stain of slavery—the ultimate violation of personal liberty and bodily integrity—from the Constitution. In

doing so, the Framers affirmed that “there are some

inherent and inalienable rights, pertaining to every

citizen, which cannot be abolished or abridged by State

constitutions or laws,” including the “right to live, the

right of personal security, personal liberty, and the

right to acquire and enjoy property.” Cong. Globe,

39th Cong., 1st Sess. 1832-33 (1866); see id. at 1757

(explaining that “these are declared to be inalienable

rights, belonging to every citizen of the United States,

as such, no matter where he may be” (quoting Chancellor Kent)). Both personal liberty and control over

one’s person and body—a basic aspect of personal security—were understood by the Framers to be inalienable rights. See id. at 1118 (defining “personal security” to include “‘a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and

his reputation’” (citation omitted)).

Yet the abolition of slavery did not end the oppression and deprivation of liberties of African Americans

and their allies in the South. “Following the Civil War,

Southern States enacted Black Codes to subjugate

newly freed slaves and maintain the prewar racial hierarchy.” Timbs v. Indiana, 139 S. Ct. 682, 688 (2019).

The Black Codes criminalized Black freedom by restricting physical movement through strict anti-loitering laws and subjected those newly free from bondage

to brutal whippings and other invasions of personal

liberty. See Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, at 198-202 (Henry

Steele Commager & Richard B. Morris eds., updated

ed. 2014). Southern sheriffs “engaged in a campaign

of unending violence against Black people, killing,

raping and brutalizing those newly freed from enslavement.” Id. “What kind of freedom,” Senator Lyman

Trumbull asked during debates on the Fourteenth

Amendment, “is that which the Constitution of the

United States guaranties to a man that does not protect him from the lash if he is caught away from home

without a pass?” Cong. Globe, 39th Cong., 1st Sess.

941-42 (1866).

In light of this brutal state of affairs, the Reconstruction Framers recognized that ensuring true freedom and preventing the subjugation of formerly enslaved people required, at a minimum, safeguarding

control over one’s person as a basic right. And when

the Fourteenth Amendment on its own proved insufficient in providing that safeguard, see Cong. Globe, 42d

Cong. 1st Sess. 459 (Rep. Coburn) (“men [continued to]

be banished or whipped or burned out or murdered”),

the Forty-Second Congress enacted Section 1983 to

provide further safeguards for “the preservation of human liberty,” id. at App. 68 (Rep. Shellabarger).

Section 1983, originally Section 1 of the Civil

Rights Act of 1871, was thus designed to create “a private right of action to vindicate violations of rights,

privileges, or immunities secured by the Constitution

and laws of the United States.” Rehberg v. Paulk, 566

U.S. 356, 361 (2012) (quotation marks omitted). This

Act, and “the Fourteenth Amendment it was enacted

to enforce, were crucial ingredients in the basic alteration of our federal system accomplished during the

Reconstruction Era,” Patsy v. Bd. of Regents, 457 U.S.

496, 503 (1982), which established “the role of the Federal Government as a guarantor of basic federal rights

against state power,” Mitchum, 407 U.S. at 239; see

Cong. Globe, 42d Cong., 1st Sess. 577 (Sen. Carpenter)

(“one of the fundamental . . . revolutions effected in our

Government” by the Fourteenth Amendment was to

“give[] Congress affirmative power . . . to save the citizen from the violation of any of his rights by State[s]”).

Section 1983, therefore, established the federal courts

as the chief protectors of personal liberty, “stand[ing]

with open doors, ready to receive and hear with impartial attention” the complaints of those deprived of fundamental liberties by intransigent southern authorities. Id. at 459 (Rep. Coburn); see also id. at 449 (Rep.

Butler) (“every citizen . . . should have a remedy

against the locality whose duty it was to protect him

and which had failed on its part”).

Given Section 1983’s drafters’ focus on protecting

deeply personal liberties like the right to be free from

unwarranted intrusions on one’s person and body, it

would be especially problematic to exempt from that

statute’s enforcement a broad class of laws that in

many cases—as here—explicitly create analogous

rights. FNHRA added to the Medicaid Act a nursing

home residents’ bill of rights that requires states to

“protect and promote the rights of each resident, including” the right to be “free from” “physical or mental

abuse, corporal punishment, involuntary seclusion,

and any physical or chemical restraints imposed for

purposes of discipline or convenience and not required

to treat the resident’s medical symptoms,” 42 U.S.C.

§ 1396r(c)(1)(A)(ii), “[t]he right to privacy with regard

to” various aspects of personal life and medical treatments, id. § 1396r(c)(1)(A)(iii), and the right “not [to

be] transfer[ed] or discharge[d] . . . from the facility”

unless certain conditions are met, id. § 1396r(c)(2)(A).

The degree to which these rights implicate the sort

of personal liberty at issue when Section 1983 was enacted—freedom of physical movement, the right not to

have one’s body unjustly restrained, the right to be free

from whippings and physical abuse—could not be

more self-evident from their text. The facts of this case

only reinforce that point: Mr. Talevski alleges that he

was chemically restrained with a high dose of psychotropic medications without justification and against

his will, rendering him unable to feed himself or speak

English, and then transferred to a facility far from his

family—again, against his will—without providing

him even the basic decency of his dentures. Pet. App.

78a-80a. Where rights of this nature are blatantly violated, Section 1983 provides a remedy for those violations in direct alignment with its drafters’ plan.

Equally at odds with Section 1983’s history is Petitioners’ argument that because Mr. Talevski filed a

grievance with the Indiana State Department of

Health, no remedy should be available to him to enforce FNHRA via Section 1983. As discussed above,

Congress enacted Section 1983 to create a “uniquely

federal remedy against incursions under the claimed

authority of state law upon rights secured by the Constitution and laws of the Nation.” Mitchum, 407 U.S.

at 239. The remedy created in Section 1983 was designed to be “supplementary to any remedy any State

might have,” McNeese v. Bd. of Educ., 373 U.S. 668,

672 (1963), in light of the Forty-Second Congress’s distrust of state courts as protectors of federal rights. See,

e.g., Cong. Globe, 42d Cong., 1st Sess. App. 252 (Sen.

Morton) (“the States do not protect the rights of the

people”); id. at 653 (Sen. Osborn) (“[i]f the state courts

had proven themselves competent to suppress the local

disorders, or to maintain law and order, we should not

have been called upon to legislate upon this subject at

all”). Accordingly, this Court has repeatedly held that

“the existence of a state administrative remedy does

not ordinarily foreclose resort to § 1983.” Wright, 479

U.S. at 427-28 (citing Patsy, 457 U.S. at 516); see Blessing v. Freestone, 520 U.S. 329, 347-48 (1997) (“a plaintiff’s ability to invoke § 1983 cannot be defeated simply

by ‘the availability of administrative mechanisms to

protect the plaintiff’s interests’” (alterations adopted)

(quoting Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989))); Wilder, 496 U.S. at

523 (“the availability of state administrative procedures ordinarily does not foreclose resort to § 1983”).

And just as the Congress that enacted Section 1983

plainly expected federal courts to provide additional

remedies to plaintiffs who suffered deprivations of

their personal liberties, the Congress that enacted

FNHRA echoed that point for this statute in particular

by including a savings clause. That savings clause provides that “[t]he remedies provided under this subsection are in addition to those otherwise available under

state or federal law.” 42 U.S.C. § 1396r(h)(8) (emphasis added). This language leaves no doubt that Congress did not expressly or impliedly “rebut the presumption of enforcement under § 1983” for FNHRA.

Gonzaga, 536 U.S. at 297.

Thus, the text and history of Section 1983 demonstrate that Congress, in enacting a broad remedy for

the vindication of federal rights, did not eliminate

Spending Clause statutes from the scope of its enforcement, and the text of FNHRA only reinforces that principle.

II. There Is No Support for Petitioners’

Argument that Spending Clause Statutes

Cannot Create Judicially Enforceable

Private Rights.

In light of this overwhelming text, history, and

precedent supporting enforcement of all federal rights

through Section 1983, Petitioners assert that Spending Clause statutes like FNHRA are somehow inherently incapable of creating privately enforceable

rights, attempting to tie that argument to the

uncontroversial principle that “it is only violations of

rights, not laws, which give rise to § 1983 actions,”

Gonzaga, 536 U.S. at 283. But this well-established

principle does not require this Court to adopt Petitioners’ argument. To the contrary, this Court’s repeated

commitment to following the plain text of the law

means that it can—and should—adhere to its long-established practice of evaluating on a case-by-case basis

whether a federal statute creates privately enforceable

rights.

A. Petitioners’ only support for their argument

that Spending Clause statutes cannot create private

rights is a general theory of contract law that this

Court has never relied upon to set aside the plain text

of a statute. Essentially, Petitioners assert that because Spending Clause legislation creates a contractlike relationship between the federal government and

the states, private individuals should be treated as

third-party beneficiaries to such contracts. And because third-party beneficiaries were not typically permitted to sue on such contracts in the 1870s, when Section 1983’s text as it reads today (in relevant part) was

written, Congress could not have possibly intended

that Section 1983 “means what it says,” Thiboutot, 448

U.S. at 4, i.e., that any federal right is enforceable in a

Section 1983 action.

To state that argument is to refute it. As this

Court has explained, “[t]he people are entitled to rely

on the law as written, without fearing that courts

might disregard its plain terms based on some extratextual consideration.” Bostock, 140 S. Ct. at 1749.

The phrase “any right” in Section 1983 was as broad

and unambiguous in the 1870s as it is today. And “‘the

fact that a statute has been applied in situations not

expressly anticipated by Congress’ does not demonstrate ambiguity; instead, it simply ‘demonstrates the

breadth’ of a legislative command.” Id. (alterations

adopted) (quoting Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479, 499 (1985)). That principle is especially salient here. After all, while the concept of third-partybeneficiary enforcement of contracts might have been

somewhat foreign to Section 1983’s drafters, the principle that Section 1983 would be used to enforce rights

sounding in deeply personal liberties plainly was not.

See generally Section I.B. Indeed, enforcement of

those sorts of rights was the chief reason Section 1983

was enacted.

Notably, in prior cases in which this Court has invoked the contract law analogy to guide interpretation

of Spending Clause statutes, it has exclusively done so

in the face of statutory ambiguity. For instance, in

Barnes v. Gorman, this Court evaluated whether punitive damages were available in an action to enforce

Section 202 of the Americans with Disabilities Act and

Section 504 of the Rehabilitation Act by invoking the

contract law analogy. 536 U.S. at 184-85. It did so,

however, only after noting that both statutes, as well

as analogous laws like Title IX, were silent on the

availability of such damages. Id. at 185-88. Only after

making that finding did this Court proceed to conclude

that because punitive damages are “generally not

available for breach of contract,” id. at 187, it would

not freely imply the availability of such damages for

the particular Spending Clause statutes at issue, id. at

188-89.

This Court took a similar approach last Term in

Cummings v. Premier Rehab Keller, P.L.L.C. Presented with the question of whether emotional distress

damages are available in an action brought pursuant

to Section 504 and the Affordable Care Act (ACA), this

Court turned first to the text of the statutes at issue,

finding the text “silent as to available remedies.” 142

S. Ct. at 1571. Only then did this Court turn to principles of contract law, concluding that because, in its

view, “emotional distress [was] generally not compensable in contract,” id. (quoting Douglas Laycock &

Richard L. Hasen, Modern American Remedies 216

(5th ed. 2019)), and both Section 504 and the ACA are

Spending Clause statutes in the nature of a contract,

emotional distress damages were not recoverable, id.

at 1570-72. The dissent applied that same methodology, even though it disagreed with the majority’s conclusion about whether emotional distress damages in

fact were traditionally available for breach of contract.

See id. at 1578 (Breyer, J., dissenting). And the concurrence went one step further, questioning the wisdom altogether of invoking the contract-law analogy

rather than focusing exclusively on statutory text. See

id. at 1576 (Kavanaugh, J., concurring) (“[T]he contract-law analogy is an imperfect way to determine the

remedies for this implied cause of action.”).

In sum, all members of this Court agreed that the

contract analogy is useful only in the face of statutory

ambiguity. Any extension of that analogy beyond

those circumstances “risks arrogating the legislative

power.” Id. at 1574 (majority op.) (quoting Hernández

v. Mesa, 140 S. Ct. 735, 741 (2020)); see also Terry Jean

Seligmann, Muddy Waters: The Supreme Court and

the Clear Statement Rule for Spending Clause Legislation, 84 Tul. L. Rev. 1067, 1120 (2010) (emphasizing

that Spending Clause statutes are “legislation, in the

end, not a buy-sell transaction”); Abbe R. Gluck, Our

[National] Federalism, 123 Yale L.J. 1996, 2031-32

(2014) (arguing against the idea that the “contract

metaphor” renders Spending Clause statutes “not ‘law’

on the same level as other pieces of legislation,” or not

subject to “the principles of statutory interpretation

that courts apply to federal legislation”).

These cases merely reinforce the well-established

premise that the contract-law analogy, like any substantive and atextual canon of construction, is only a

useful interpretive tool when the text of a statute

leaves questions unanswered. Petitioners cite no ambiguity in Section 1983’s express conferral of a cause

of action for deprivations of “any rights, privileges, or

immunities secured by the Constitution and laws”—

nor could they—so this Court should reject their invitation to supplant the statute’s plain text with an interpretive theory that has never been treated as binding. See Cummings, 142 S. Ct. at 1574 (rejecting incorporation of “the law of contract remedies wholesale”); Barnes, 536 U.S. at 186 (“[W]e have been careful not to imply that all contract-law rules apply to

Spending Clause legislation.”); see also Seligmann, supra, at 1120 (“Although the voluntary aspect of federal-state engagement in spending clause programs

makes the analogy useful, as members of the Court

have pointed out, the analogy has its limits.”).

B. Petitioners’ argument that Spending Clause

statutes can never create judicially enforceable private

rights is also belied by the plain text of FNHRA, a

Spending Clause statute whose text unambiguously

manifests Congress’s intent to create mandatory private rights for nursing home residents.

Spending Clause statutes, like any broad category

of laws grouped together only by the constitutional authority invoked by Congress in passing them, come in

a wide variety of forms. This Court’s disparate decisions as to whether distinct Spending Clause statutes

create private rights illustrates the point. As discussed above, at times this Court has held that the text

of certain Spending Clause statutes did not “manifest[]

an unambiguous intent to confer individual rights,”

Gonzaga, 536 U.S. at 280 (quotation marks omitted)

(no enforceable private right created by Family Educational Rights and Privacy Act of 1974), whereas at

other times, it has explicitly held otherwise, e.g., Wilder, 496 U.S. at 522-23 (enforceable private right created by reimbursement provision of Medicaid Act).

Discerning the presence or absence of congressional intent to create enforceable rights necessarily

entails examination of the text of the particular statute at issue—here, FNHRA. And examination of

FNHRA’s text leaves no doubt that Congress created

an enforceable private right through FNHRA’s nursing home residents’ bill of rights. For one, the statute

is written in mandatory terms, giving courts a clear

framework through which to assess whether a state

has deprived a resident of the enumerated protections.

See 42 U.S.C. § 1396r(c)(1)(A) (“A nursing facility must

protect and promote the rights of each resident, including each of the following rights . . . .” (emphasis

added)). And the terms of the particular rights at issue

here—“[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,” id. § 1396r(c)(1)(A)(ii), and the

right “to remain in the facility” and not be “transfer[ed]

or discharge[ed] . . . from the facility unless” certain

conditions are met, id. § 1396r(c)(2)(A)—focus not on

the state-federal relationship that Petitioners seek to

elevate, but on individual nursing home residents and

the states’ express obligations to those private individuals. In short, as Respondent describes in detail, see

Resp. Br. 33-38, this Court has perhaps never before

encountered a Spending Clause statute that so clearly

and explicitly confers concrete, judicially enforceable

rights on private individuals. It certainly, therefore,

would be odd to use this case to hold that as a

categorical matter, Spending Clause statutes can

never confer rights of that nature.

And though the plain text of FNHRA alone should

put to rest any doubt that Congress can confer rights

enforceable through Section 1983 in Spending Clause

statutes, it is also noteworthy that Congress enacted

FNHRA after this Court established, most prominently in Pennhurst State School & Hospital v. Halderman, the requirement that Congress “speak with a

clear voice” and manifest an “unambiguous[]” intent to

confer such rights in Spending Clause statutes. 451

U.S. at 17. This Court has often noted that “when Congress enacts statutes, it is aware of relevant judicial

precedent,” Merck & Co. v. Reynolds, 559 U.S. 633, 648

(2010), and thus tailors its legislation to prerequisites

espoused by this Court like the particular constructions of statutory terms or clear-statement rules, e.g.,

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072

(2020) (“Congress, aware of this precedent [so holding],

would have intended the phrase ‘questions of law’ to

include the application of a legal standard to established or undisputed facts.”). Given the explicit and

mandatory rights-creating language in FNHRA, there

is every indication that Congress wrote the statute to

comply with this Court’s heightened standard for enforceability of Spending Clause statutes via Section

1983. For this Court to then say that Spending Clause

statutes are never enforceable via Section 1983 would

pull the rug out from under Congress, effectively nullifying that branch’s plan for a statute in a case that

is, at the end of the day, one of statutory interpretation.

* * *

In sum, the plain text of Section 1983, considered

along with that statute’s history and this Court’s precedents, plainly refutes Petitioners’ argument that

deprivations of rights created by the Spending Clause

are not actionable via Section 1983. The particulars of

this case—including the explicit rights-creating language of FNHRA—only reinforce that conclusion.

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgment of the court below.

Respectfully submitted,

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

1915 15th St. NW

Washington, D.C. 20005

KENNETH J. FALK

ACLU OF INDIANA

1031 E. Washington St.

Indianapolis, IN 46202

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th St. NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

September 23, 2022

* Counsel of Record

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.