Care v. Kincade

• Citation: 712 F.3d 1190
• Decision Date: 17 May 2013
• Docket Number: No. 12–1834.,12–1834.
• Parties: MIDWEST FOSTER CARE AND ADOPTION ASSOCIATION; Missouri State Foster Care and Adoption Board; Wesley Cauveren; Jennifer Cauveren; Kristina DesCombes; Tyran Murrell; Michael Paulsen; Kay Paulsen, Plaintiffs–Appellants v. Brian KINCADE, Director of the Department of Social Services, in his official capacity; Candace A. Shively, Director of the Children's Division, in her official capacity, Defendants–Appellees. American Civil Liberties Union Foundation of Kansas and Western Missouri; American Civil Liberties Union of Eastern Missouri; Kansas Foster and Adoptive Children; Missouri Foster Care and Adoptive Association; The Central Missouri Foster Care and Adoption Association; The Evan B. Donaldson Adoption Institute; The North American Council on Adoptable Children; Children's Rights, Amici on Behalf of Appellants State of Alaska; State of Arizona; State of Arkansas; State of Colorado; State of Hawaii; State of Indiana; State of Kansas; State of Maryland; State of Massachusetts; State of Michigan; State of Nebraska; State of Nevada; State of New York; State of North Dakota; State of Rhode Island; State of South Carolina; State of Utah; State of Washington; State of Wyoming, Amici on Behalf of Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

712 F.3d 1190

MIDWEST FOSTER CARE AND ADOPTION ASSOCIATION; Missouri State Foster Care and Adoption Board; Wesley Cauveren; Jennifer Cauveren; Kristina DesCombes; Tyran Murrell; Michael Paulsen; Kay Paulsen, Plaintiffs–Appellants

v. Brian KINCADE, Director of the Department of Social Services, in his official capacity; Candace A. Shively, Director of the Children's Division, in her official capacity, Defendants–Appellees.American Civil Liberties Union Foundation of Kansas and Western Missouri; American Civil Liberties Union of Eastern Missouri; Kansas Foster and Adoptive Children; Missouri Foster Care and Adoptive Association; The Central Missouri Foster Care and Adoption Association; The Evan B. Donaldson Adoption Institute; The North American Council on Adoptable Children; Children's Rights, Amici on Behalf of AppellantsState of Alaska; State of Arizona; State of Arkansas; State of Colorado; State of Hawaii; State of Indiana; State of Kansas; State of Maryland; State of Massachusetts; State of Michigan; State of Nebraska; State of Nevada; State of New York; State of North Dakota; State of Rhode Island; State of South Carolina; State of Utah; State of Washington; State of Wyoming, Amici on Behalf of Appellees.

No. 12–1834.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2012.

Filed: April 8, 2013.

Rehearing and Rehearing En Banc^* Denied May 17, 2013.

J. Eugene Balloun, Shook, Hardy & Bacon, L.L.P., Kansas City, MO, argued (Lori Burns–Bucklew, Michael Barnett, Lynn C. Herndon, Dana L. Strueby, on the brief), for appellants.

James R. Layton, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellees.

Stephen Douglas Bonney, Daniel Hyndman, Kansas City, MO, Anthony E. Rothert, Grant R. Doty, St. Louis, MO, for amicus curiae American Civil Liberties Union Foundation of Kansas and Western Missouri, American Civil Liberties Union of Eastern Missouri, Kansas Foster and Adoptive Children, Missouri Foster Care and Adoption Assn., the Evan B. Donaldson Adoption Inst., the Central Missouri Foster Care and Adoption Assn., and the North American Council on Adoptable Children, in support of appellants.

J. Richard Hammett, Elizabeth Yingling, Brandon Moseberry, Mireille Zuckerman, Joe Rindone, Calina Joachim, Emily Harbison, Baker & McKenzie LLP, Houston, TX, Ira Lustbader, Jodi Miller, New York, NY, for amicus curiae Children's Rights in support of appellants.

Robert M. McKenna, Atty. Gen., Theresa L. Fricke, Asst. Atty. Gen., Alan Copsey, Dep. Solicitor Gen., Olympia, WA, for amici curiae State of Washington and 18 other states, in support of appellees.

Before SMITH, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Six individual foster care providers and two organizations representing Missouri foster care providers (collectively, “Providers”) brought a suit against officials of the State of Missouri (“the State”) who oversee the State's foster care program. The Providers asserted that the Adoption Assistance and Child Welfare Act of 1980 (“CWA”), 42 U.S.C. § 670 et seq., gave them a privately enforceable right under 42 U.S.C. § 1983 to receive payments from the State sufficient to cover the cost of certain statutorily enumerated components of foster care. The district court ¹ held that the CWA provisions the Providers invoked were not privately enforceable and dismissed their complaint for failure to state a claim. For the reasons discussed below, we affirm the district court.

I.

The CWA is a piece of Spending Clause legislation that creates a cooperative state-federal program to fund foster care and adoption assistance. Mo. Child Care Ass'n v. Cross, 294 F.3d 1034, 1036 (8th Cir.2002).² State expenditures are eligible for partial reimbursement with federal matching funds only if the state incurs them within the constraints set forth in the CWA. A state must enact a plan for organizing and operating its foster care program and then submit the plan to the Secretary of Health and Human Services (“Secretary”) for approval. 42 U.S.C. § 671(a). The Secretary must “promulgate regulations for the review of such programs to determine whether” there is “substantial conformity” between the terms of the state plan and federal requirements, as well as between the state plan as written and the way in which it is implemented. 42 U.S.C. § 1320a–2a(a). If “there is a substantial failure to so conform,” the Secretary is directed to take corrective measures, including withholding federal matching funds. § 1320a–2a(b). States failing to substantially conform must be given an opportunity to “adopt and implement a corrective action plan, approved by the Secretary,” during which time the withholding of federal matching funds is suspended. § 1320a–2a(b)(4).

One of the required characteristics of each state plan is that it “provides for foster care maintenance payments in accordance with section 672.” § 671(a)(1). Section 672, in turn, describes how “[e]ach state” with an approved plan “shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative ... if the removal and foster care placement” requirements are met and the child would have otherwise qualified for assistance under the now-defunct Aid to Families with Dependent Children program. § 672(a). Subsection (b) sets forth “[a]dditional qualifications,” which limit the individuals or entities eligible to receive foster care maintenance payments. These payments “may be made ... only on behalf of a child” who is eligible under § 672(a) and is in either “the foster family home of an individual” or “a child-care institution.” § 672(b). Three classes of recipients are referenced: individuals, public or private “child-care agenc[ies],” and “child-care institution[s].” Id. A state can receive federal matching funds—at a rate equal to its Medicaid matching rate—only for those foster care maintenance payments meeting the foregoing requirements of § 672. See § 674(a)(1). Section 675, the “Definitions” section of the CWA, defines “foster care maintenance payments” as:

payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence.

§ 675(4)(A).

The State interprets these CWA provisions as constraining the potential types of payment recipients and imposing a ceiling on the types of expenses for which the federal government is willing to provide matching funds. In contrast, under the Providers' reading, § 672(a) endows eligible foster care providers with an individually enforceable federal right to payments sufficient to cover every element of care listed in § 675(4)(A). It is this alleged right they seek to enforce through § 1983, by requesting both a declaratory judgment that the State is violating the CWA through inadequate foster care maintenance payments and an injunction requiring the State to adopt and implement a methodology that will result in a higher, “lawful” level of payments.

“Section 1983 provides a federal cause of action against anyone who, acting pursuant to state authority, violates any ‘rights, privileges or immunities secured by the Constitution and laws' of the United States.” Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472, 477 (8th Cir.2002) (quoting 42 U.S.C. § 1983). However, § 1983 holds out a mechanism to vindicate only “the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). “[I]t is rights, not the broader or vaguer ‘benefits' or ‘interests,’ that may be enforced under [§ 1983].” Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Where a statute merely gives individuals a general benefit or enhances their interest in having the state meet its statutory responsibilities, plaintiffs seeking to force compliance with funding conditions must utilize “the typical remedy” of pursuing “action by the Federal Government to terminate funds to the State.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

In Blessing, the Supreme Court created a three-part test for determining whether a statute creates an individually enforceable federal right. This test requires us to analyze whether “(1) Congress intended the statutory provision to benefit the plaintiff; (2) the asserted right is not so ‘vague and amorphous' that its enforcement would strain judicial competence; and (3) the provision clearly imposes a mandatory obligation upon the states.” Lankford v. Sherman, 451 F.3d 496, 508 (8th Cir.2006) (quoting Blessing, 520 U.S. at 340, 117 S.Ct. 1353). If a plaintiff demonstrates that a statute meets all three parts of the Blessing test, it is presumptivelyenforceable under § 1983. Blessing, 520 U.S. at 341, 117 S.Ct. 1353. Defendants can rebut this presumption by showing either that Congress explicitly foreclosed a remedy under § 1983 or implicitly did so, “by creating a comprehensive enforcement scheme that is incompatible with individual enforcement.” Id.

After observing some “confusion” among courts applying the Blessing test, the Supreme Court subsequently clarified the first prong and “reject[ed] the notion that [its earlier] cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268;see also Lankford, 451 F.3d at 508. Requiring Congress...