N.Y.S. Citizens' Coal. for Children v. Poole

• Decision Date: 19 April 2019
• Docket Number: No. 14-2919-cv,August Term 2017,14-2919-cv
• Citation: 922 F.3d 69
• Parties: NEW YORK STATE CITIZENS' COALITION FOR CHILDREN, Appellant, v. Sheila J. POOLE, Acting Commissioner for the New York State Office of Children and Family Services, in his official capacity, Appellee
• Court: U.S. Court of Appeals — Second Circuit

922 F.3d 69

NEW YORK STATE CITIZENS' COALITION FOR CHILDREN, Appellant,
v.
Sheila J. POOLE, Acting Commissioner for the New York State Office of Children and Family Services, in his official capacity, Appellee,

No. 14-2919-cv
August Term 2017

United States Court of Appeals, Second Circuit.

Argued: June 15, 2015
Decided: April 19, 2019

Grant J. Esposito, Esq., Adam J. Hunt, Esq., Morrison & Foerster LLP, New York, NY, Brian R. Matsui, Esq., Morrison & Foerster LLP, Washington, DC, for Plaintiff - Appellant.

Steven Wu, Caroline Anais Olsen, Esq., Assistant Solicitor General, New York State Office of the Attorney General, New York, NY, for Defendant - Appellee.

Jennifer S. Meyer, Assistant Attorney General, Karl D. Smith, Assistant Attorney General, Washington State Office of the Attorney General, Social and Health Services-Olympia Division, for Amici Curiae.

Before: Calabresi, Livingston, Circuit Judges, and Sessions, District Judge.^*

Judge Livingston dissents in a separate opinion.

Calabresi, Circuit Judge:

This case asks whether Spending Clause legislation that directs specific payments to identified beneficiaries creates a right enforceable through 42 U.S.C. § 1983. We hold that it does.

Congress enacted the Adoption Assistance and Child Welfare Act of 1980 ("the Act") "to strengthen the program of foster care assistance for needy and dependent children." Pub. L. 96-272,94 Stat. 500 (1980). One of the ways the Act does so is by creating a foster care maintenance payment program. 42 U.S.C. § 671(a)(1). Under this program, participating states receive federal aid in exchange for making payments to foster parents "on behalf of each child who has been removed from the

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home of a relative." Id. § 672(a)(1), (2). These payments are calculated to help foster parents provide their foster children with basic necessities like food, clothing, and shelter.

The particular question before us is whether the Act grants foster parents a right to these payments enforceable through a Section 1983 action. Three Courts of Appeals have reached this issue. The Sixth and Ninth Circuits have held that it does. Cal. State Foster Parent Ass'n v. Wagner , 624 F.3d 974 (9th Cir. 2010) ; D.O. v. Glisson , 847 F.3d 374 (6th Cir. 2017). The Eighth Circuit has held that it does not. Midwest Foster Care and Adoption Ass'n v. Kincade , 712 F.3d 1190 (8th Cir. 2013).

We join the Sixth and Ninth Circuits in holding that the Act creates a specific entitlement for foster parents to receive foster care maintenance payments, and that this entitlement is enforceable through a Section 1983 action. The district court, Kuntz J. , held to the contrary. Accordingly, we VACATE the order dismissing the case and REMAND for further proceedings.

I. Background

This appeal arises from a Section 1983 action filed in federal district court by the New York State Citizens' Coalition for Children ("the Coalition"). The Coalition's suit, brought on behalf of its foster parent members, alleges that the New York State Office of Children and Family Services ("the State") has failed to make adequate foster care maintenance payments as required by the Act.

The district court dismissed the Coalition's suit, holding that the Act creates no federally enforceable right to receive foster care maintenance payments. The Coalition appealed. On appeal, the State asserted, for the first time, that the Coalition lacked standing to bring this suit on behalf of its members. We remanded the case to the district court for additional factfinding on that issue. On remand, the district court found that the Coalition has standing: The Coalition must expend resources to advise and assist foster parents because of the State's allegedly inadequate reimbursement rates.

The Coalition then returned to this Court for review of the district court's original holding that they could not enforce the Act through Section 1983. The State, yet again, raised a new argument on appeal, this time that the Coalition lacks standing to bring this suit under the third-party standing rule.

Before considering the original issue before us—that is, whether the Act creates a federally enforceable right to receive foster care maintenance payments—we must address the State's claim that the Coalition lacks organizational and third-party standing to litigate these claims on behalf of its foster parent members.

II. Standing

To bring a Section 1983 suit on behalf of its members, an organization must clear two hurdles. First, it must show that the violation of its members' rights has caused the organization to suffer an injury independent of that suffered by its members. Nnebe v. Daus , 644 F.3d 147, 156 (2d Cir. 2011). Second, it must "demonstrat[e] a close relation to the injured third part[ies]," and "a hindrance" to those parties' "ability to protect [their] own interests." Mid-Hudson Catskill Rural Migrant Ministry v. Fine Host Corp. , 418 F.3d 168, 174 (2d Cir. 2005). We conclude that the Coalition has cleared both hurdles.

A. Organizational Standing

In a string of opinions, this Court has held that organizations suing under

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Section 1983 must, without relying on their members' injuries, assert that their own injuries are sufficient to satisfy Article III's standing requirements. Nnebe , 644 F.3d at 156-58 ; League of Women Voters v. Nassau Cty. , 737 F.2d 155, 160-61 (2d Cir. 1984) ; Aguayo v. Richardson , 473 F.2d 1090, 1099-1100 (2d Cir. 1973). To establish its own injury, an organization must show that it has suffered a "perceptible impairment" to its activities. Nnebe , 644 F.3d at 157. This showing can be met by identifying "some perceptible opportunity cost" that the organization has incurred because of the violation of its members' rights. Id.

The Coalition asserts that the State's alleged violations of the Act has cost it hundreds of hours in the form of phone calls from aggrieved foster families. The district court found, and we agree, that the Coalition has spent nontrivial resources fielding these calls, and that it will continue to have to do so absent relief. This showing is sufficient to establish that the Coalition has suffered its own injury.

B. Third Party Standing

When any plaintiff asserts the rights of others, it has traditionally also faced, in our court, a rule of prudential standing: the so-called third-party standing bar. With some exceptions, this rule prevents "litigants from asserting the rights or legal interests of others [simply] to obtain relief from injury to themselves." Keepers, Inc. v. City of Milford , 807 F.3d 24, 40 (2d Cir. 2015) (quoting Rajamin v. Deutsche Bank Nat. Trust Co. , 757 F.3d 79, 86 (2d Cir. 2014) ).

There is considerable uncertainty as to whether the third-party standing rule continues to apply following the Supreme Court's recent decision in Lexmark v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). In Lexmark , the Supreme Court cast doubt on the entire doctrine of prudential standing, explaining that a court can no more "limit a cause of action that Congress has created" than it can "apply its independent policy judgment to recognize a cause of action that Congress has denied." Id. at 1388. Nevertheless, in United States v. Suarez , a post- Lexmark case, we continued to hold that courts are required to address third-party standing. 791 F.3d 363, 367 (2d Cir. 2015). In Suarez , however, we did not address Lexmark .

But we need not, in the case before us, resolve this tension. Whatever the status of the third-party standing bar, our cases have developed an exception to it where a plaintiff can show "(1) a close relationship to the injured party and (2) a barrier to the injured party's ability to assert its own interests." Keepers, Inc. , 807 F.3d at 41. That exception applies here.

It is evident that the Coalition enjoys a close relationship with the foster parents it counsels, not least because those foster parents have authorized the Coalition to file suit on their behalf. The State argues, however, that the Coalition has failed to show that it would be "difficult if not impossible" for the foster parents to protect their own rights. December 22, 2017 Appellee Letter Br. at 14. But the third-party standing rule does not demand anything near impossibility of suit. See 15 James William Moore, Moore's Federal Practice § 101.51[3][c][iii] (3d ed. 2008). Instead, a mere "practical disincentive to sue"—such as a desire for anonymity or the fear of reprisal—can suffice to overcome the third-party standing bar. Id. ; See also Keepers , 807 F.3d at 42 ; Camacho v. Brandon , 317 F.3d 153, 160 (2d Cir. 2003).

And here, the Coalition has demonstrated that the manifest desire of their foster parent members for anonymity constitutes a significant disincentive for those parents

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to sue in their own names. It did so by submitting an anonymous affidavit from one of its members articulating two reasons the member desired anonymity. First, the member feared retaliation because a state...