New York State Citizens' Coal. for Children v. Poole ( 2019 )

14-2919
New York State Citizens' Coal. for Children v. Poole
14‐2919
New York State Citizensʹ Coal. for Children v. Poole
United States Court of Appeals
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 16th day of August, two thousand
nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK
Circuit Judges.
NEW YORK STATE CITIZENSʹ COALITION
FOR CHILDREN,
Plaintiff‐Appellant,
v. No. 14‐2919
SHEILA J. POOLE, Acting Commissioner for
the New York State Office of Children and
Family Services, in his official capacity,
1
Defendant‐Appellee.
For Plaintiff‐Appellant: Grant J. Esposito, Adam J. Hunt,
Morrison & Foerster LLP, New York,
NY; Brian R. Matsui, Esq., Morrison &
Foerster LLP, Washington, DC.
For Defendant‐Appellee: Caroline A. Olsen, Assistant Solicitor
General; Barbara D. Underwood,
Solicitor General; Steven C. Wu,
Deputy Solicitor General for Letitia
James, Attorney General for the State
of New York.
Following disposition of this appeal on April 19, 2019, an active judge of
the Court requested a poll on whether to rehear the case en banc. A poll having
been conducted and there being no majority favoring en banc review, rehearing
en banc is hereby DENIED.
Debra Ann Livingston, Circuit Judge, joined by José A. Cabranes, Richard J.
Sullivan, Joseph F. Bianco, and Michael H. Park, Circuit Judges, dissents by
opinion from the denial of rehearing en banc.
José A. Cabranes, Circuit Judge, dissents by opinion from the denial of
rehearing en banc.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
2
DEBRA ANN LIVINGSTON, Circuit Judge, joined by JOSÉ A. CABRANES, RICHARD
J. SULLIVAN, JOSEPH F. BIANCO, and MICHAEL H. PARK, Circuit Judges, dissenting
from the denial of rehearing en banc:
By a vote of six to five, the active members of this Court decline to rehear a
case presenting an issue of “exceptional importance”—an issue that now divides
four United States Courts of Appeals.1 Fed. R. App. P. 35(a). The panel majority
holds that the Adoption Assistance and Child Welfare Act of 1980 (the “CWA” or
the “Act”), 42 U.S.C. § 670 et seq., creates a privately enforceable right under 42
U.S.C. § 1983 by which some foster care parents and providers may sue States for
costs related to childrearing. In implying this right of action, the majority tasks
federal district judges across the three States of our Circuit with setting the rates
at which this subset of foster care parents and providers should be compensated
for items such as a child’s “food, clothing, shelter, daily supervision, [and] school
1 Compare New York State Citizens’ Coalition for Children v. Poole, 322 F.3d 69 (2d Cir.
2019) (finding a right privately enforceable under § 1983 to recover “foster care
maintenance payments” in the CWA); D.O. v. Glisson, 847 F.3d 374 (6th Cir. 2017) (same);
Cal State Foster Parents Ass’n v. Wagner, 624 F.3d 974 (9th Cir. 2010) (same), with Midwest
Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190 (8th Cir. 2013) (holding that the
CWA does not confer a privately enforceable right to “foster care maintenance
payments”); see Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 170 (D. Mass. 2011)
(“Federal courts are divided as to whether the [CWA] creates privately enforceable rights
to . . . foster care maintenance payments.”); see also 31 Foster Children v. Bush, 329 F.3d 1255
(11th Cir. 2003) (holding that provisions of the CWA requiring that a foster care child’s
health and education record be reviewed do not confer a privately enforceable right
under § 1983).
1
supplies,” id. § 675(4)(A), pursuant to a statute that contains not a word of
guidance for making such judgments.2 In its forceful petition for rehearing en
banc, the State of New York argues that the panel majority’s holding will require
States “to prioritize spending on the limited set of children and expenditures
eligible for partial federal reimbursement, at the expense of the much broader
population of children that New York and other States have chosen to benefit,”
while at the same time “subjecting States to the risk of multiple, inconsistent
judgments about proper foster care reimbursement rates.” Petition for Rehearing
En Banc at 1, 3, New York State Citizens’ Coalition for Children v. Poole, 922 F.3d 69
(2d Cir. 2019) [hereinafter Petition for Rehearing]. Connecticut, along with over
a dozen other States joining in an amicus brief, agrees with New York. It too
argues that the majority’s privately enforceable right will impose immense
Section 675 of the Act, entitled “Definitions,” defines “foster care maintenance
2
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.
Id. § 675(4)(A).
2
burdens on State foster care systems and represents a “costly condition . . . that
Congress did not impose and to which the . . . States did not agree when entering
into [this] relationship with the federal government.” Brief for Amici Curiae
States Supporting Respondents at 2, New York State Citizens’ Coalition for Children
v. Poole, 922 F.3d 69 (2d Cir. 2019); see also Armstrong v. Exceptional Child Care Center,
135 S. Ct. 1378, 1389 (2015) (Breyer, J., concurring in part and concurring in the
judgment) (noting the “increased litigation, inconsistent results, and disorderly
administration” that result from judicial rate setting).
The panel majority’s decision imposes these pernicious costs on our Circuit
despite the fact that the right it identifies is not even fairly discernible, much less
unambiguously manifest, in the text of the CWA. Congress simply did not create
an individual right to foster care maintenance payments enforceable pursuant to
§ 1983 in the “Definitions” section of this Spending Clause legislation. See
Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190, 1197 (8th Cir. 2013)
(“[F]inding an enforceable right solely within a purely definitional section is
antithetical to requiring unambiguous congressional intent.”). In deciding to the
contrary, the panel majority misconstrues the Act and ignores decades of Supreme
Court precedent, choosing instead to resurrect the Court’s long-abandoned “ancien
3
regime” of readily implied causes of action. Alexander v. Sandoval, 532 U.S. 275,
287 (2001). Because the majority’s decision is wrong, will dissipate scarce foster
care dollars, and will impose litigation burdens in this Circuit that far outweigh
the additional work required for en banc review, I dissent from the denial of
rehearing en banc.
* * *
The CWA, enacted almost 40 years ago, offers fiscal incentives to
participating States “to encourage a more active and systematic monitoring of
children in the foster care system.” Vermont Dep’t of Soc. & Rehab. Servs. v. U.S.
Dep’t of Health & Human Servs., 798 F.2d 57, 59 (2d Cir. 1986). As the dissent from
the panel majority’s decision lays out more fully, by incentivizing appropriate
foster care arrangements, the CWA does not in some way sub silentio grant a subset
of New York foster parents and providers a privately enforceable right under 42
U.S.C. § 1983 to recover “foster care maintenance payments.” See Poole, 922 F.3d
at 85–101 (Livingston, J., dissenting). The panel majority makes two fundamental
mistakes in concluding to the contrary.
As to the first mistake: the CWA provides partial reimbursement to
participating States of “foster care maintenance payments” made by these States
4
on behalf of eligible children, if the States otherwise satisfy the requirements of the
Act. See 42 U.S.C. §§ 671, 675. But the panel majority concludes that by
providing that States “shall make” foster care maintenance payments, id. §
672(a)(1), the CWA also imposes a minimum foster care spending obligation on
recipient States, requiring the States to cover the entire cost of a slew of items listed
as reimbursable in § 675(4)(A), despite the fact that the States do not even receive
full federal reimbursement for those items. Put differently, the panel majority
determines that the partial federal support system supplied by the CWA imposes
a categorical foster care spending requirement on all recipient States,
notwithstanding any limits their legislatures may have placed on these
expenditures. This is not a reasonable interpretation of §§ 672 and 675. These
provisions are instead best read as identifying certain categories of State payments
that are eligible for partial federal reimbursement, but leaving to the discretion of the
States which payments to make in the first instance.3 See Poole, 922 F.3d at 86–92
3
The Department of Health and Human Services (“HHS”) has consistently
interpreted the statute as merely stipulating reimbursement eligibility requirements. To
take one example, in 2008, Congress amended the definition of “foster care maintenance
payments” to include “payments to cover the cost of (and the cost of providing) . . .
reasonable travel for the child to remain in the school in which the child is enrolled at the
time of placement.” Fostering Connections to Success and Increasing Adoptions Act of
2008, Pub. L. No. 110–351,122 Stat 3949 (2008) (current version at 42 U.S.C. § 675(4)(A)).
But HHS did not interpret this amendment as requiring States to pay for such travel: “As
5
(Livingston, J., dissenting). State authorities direct their own foster care
programs—not federal courts.
But even if §§ 672 and 675 do impose a spending obligation on the States
(and they do not), the panel majority errs a second time in concluding that the
CWA also confers on a subset of New York caregivers a right, enforceable under
§ 1983, to a monetary amount that “cover[s] the cost of” these “foster care
maintenance payments.” Poole, 922 F.3d at 77. As the panel majority is well
aware, the Supreme Court has “rejected the notion” that its precedent “permit[s]
anything short of an unambiguously conferred right to support a cause of action
brought under § 1983.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (emphasis
added). And the Court has reminded us that the dangers of implying enforceable
rights are particularly acute with regard to Spending Clause legislation, which is
“much in the nature of a contract.” Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981). After all, “[t]he legitimacy of Congress’ power to legislate . . .
with any cost enumerated in the definition of foster care maintenance payments,” it said,
“the [State] agency may decide which of the costs to include in the child’s foster care
maintenance payment.” U.S. Dep’t of Health & Human Servs., Program Instruction No.
ACYF-CB-Pl-10-11 at 20, http://perma.cc/9LX9-C76D; see also U.S. Dep’t of Health &
Human Servs., Child Welfare Policy Manual § 8.3B.1(9) (2018) (noting that Boy Scout
dues qualify as “incidentals” and are therefore “reimbursable” under the CWA (emphasis
added)).
6
rests on whether the State voluntarily and knowingly accepts the terms of [this]
‘contract,’” and an implied right of action constitutes a critical contractual term.
Suter v. Artist M., 503 U.S. 347, 356 (1992) (quoting Pennhurst, 451 U.S. at 17); see
also Poole, 922 F.3d at 92–93 (Livingston, J., dissenting) (outlining the Court’s
jurisprudence in this area); Kapps v. Wing, 404 F.3d 105, 127 (2d Cir.
2005) (recognizing that “the Court has appeared to be increasingly reluctant to
find § 1983–enforceable rights in statutes which . . . set forth their requirements in
the context of delineating obligations that accompany participation in federal
spending clause programs”).
The CWA does not come close to satisfying this demanding standard for
recognizing a privately enforceable right under § 1983 to foster care maintenance
payments. 4 The panel majority inexplicably charges that the dissent
inappropriately “read[s] the tea leaves” to reach this conclusion, Poole, 922 F.3d at
4
By contrast, the CWA unambiguously confers a private right of action to prevent
States from making foster-care placement decisions on the basis of race, color, or national
origin. See 42 U.S.C. §§ 671(a)(18), 674(d)(3)(A) (“Any individual who is aggrieved by a
violation of section 671(a)(18) [prohibiting racial discrimination in foster care or adoption
denials] of this title by a State or other entity may bring an action seeking relief from the
State or other entity in any United States district court.”). The absence of such rights-
creating language in the foster care maintenance payment provisions at issue here
strongly suggests that the omission was intentional. See, e.g., Olmsted v. Pruco Life Ins.
Co. of N.J., 283 F.3d 429, 433 (2d Cir. 2002).
7
79—that the dissent rests on a mere prediction that the Supreme Court will
abandon the factors set forth in its Blessing decision to guide judicial inquiry into
whether a statute manifests an “unambiguous[ ]” intent to create a private right,
see Blessing v. Freestone, 520 U.S. 329, 340–41 (1997), when “this Court is not tasked
with—and is, in fact, prohibited from—such guesswork.” Poole, 922 F.3d at 79.
In reality, each of the Blessing factors uniformly weigh against the presence in the
CWA of a § 1983 right to a monetary amount that covers the cost of any and all
“foster care maintenance payments.”5 See id. at 94–97 (Livingston, J., dissenting).
For example, Blessing asks us to consider whether “the right assertedly
protected by the statute is . . . so ‘vague and amorphous’ that its enforcement
would strain judicial competence.” Blessing, 520 U.S. at 340–41. If so, that factor
weighs against the existence of the right. See id. Here, calculating the
appropriate “cost” of “foster care maintenance payments” involves manifold
policy judgments about foster care and childrearing, not to mention overall
5
And the Supreme Court has warned against reading Blessing to thwart the
Court’s repeated directive that nothing less than an unambiguously conferred right is
enforceable pursuant to § 1983. See Gonzaga, 536 U.S. at 282–83 (“Some language in our
opinions might be read to suggest that something less than an unambiguously conferred
right is enforceable by § 1983. Blessing, for example, set forth three ‘factors’ to guide
judicial inquiry into whether or not a statute confers a right. . . . We now reject the notion
that our cases permit anything short of an unambiguously conferred right to support a
cause of action brought under § 1983.”).
8
program administration, that federal judges are ill-suited to make and that go
entirely unmentioned in the statute that the panel majority interprets
unambiguously to require these judgments. Poole, 922 F.3d at 95–97 (Livingston,
J., dissenting); cf. Armstrong, 135 S. Ct. at 1388 (Breyer, J., concurring in part and
concurring in the judgment) (“The history of ratemaking demonstrates that
administrative agencies are far better suited to this task than judges.”). How
exactly should judges determine the “cost” of daily supervision, personal
incidentals, and other expenses associated with childrearing? Should rates vary
based on a family’s income level or location, or a child’s disability? Who can say,
since the CWA, which does not contemplate federal courts’ involvement in rate
setting, says not a word about the standards according to which scarce foster care
dollars are to be allocated?6
6 As already noted, the CWA provides partial federal reimbursement of a State’s
foster care expenditures, but only with regard to the § 675(4)(A) items and only for some
children—those who “would have otherwise qualified for assistance under the now-
defunct Aid to Families with Dependent Children program.” Midwest Foster Care, 712
F.3d at 1194. New York affirms that partial federal reimbursement is available for only
about forty percent of the children in its foster care system. Petition for Rehearing at 7.
The panel majority’s conclusion that the CWA imposes a spending mandate on States,
enforceable pursuant to § 1983, will thus not only confer on district courts a rate-setting
obligation pursuant to a statute that provides no guidance for this task, but also have the
likely effect, as New York argues, of arbitrarily “forc[ing] New York to decrease its
payments for the costs and children who do not meet federal eligibility requirements.”
Id. at 15.
9
If the plain language of the statute and the Blessing factors were not
formidable enough obstacles to the panel majority’s conclusion, there is also the
Supreme Court’s recent pronouncement in Armstrong v. Exceptional Childcare
Center, 135 S. Ct. 1378 (2015). In Armstrong, the Supreme Court held that § 30(A)
of the Medicaid Act is not privately enforceable in equity because “[t]he sheer
complexity associated with enforcing § 30(A), coupled with the express provision
of an administrative remedy,” demonstrates that Congress did not intend for
private plaintiffs to enforce § 30(A) in courts. Id. at 1385. The Court rested its
holding on the long line of precedent catalogued above, “establish[ing] that a
private right of action under federal law is not created by mere implication, but
must be ‘unambiguously conferred.’” Id. at 1388 (quoting Gonzaga, 536 U.S. at
283). The panel majority bizarrely claims that Armstrong is inapposite. Poole, 922
F.3d at 85. But the Medicaid Act and the CWA have similar administrative (rather
than judicial) enforcement schemes and, as already noted, determining
appropriate reimbursement rates for childrearing expenses absent any statutory
guidance presents major problems of judicial administrability, similar to those in
Armstrong. See id. at 97–99 (Livingston, J. dissenting). In fact, the only significant
distinction between the two cases—that the Armstrong plaintiffs brought suit in
10
equity rather than pursuant to § 1983—hurts the Plaintiffs here. Those seeking to
bring a cause of action in equity benefit from a presumption that an equitable cause
of action exists, whereas those bringing suit under § 1983 labor under the opposite
presumption. Armstrong, 135 S. Ct. at 1392 (Sotomayor, J., dissenting). Indeed,
the Armstrong plaintiffs did not even attempt to sue under § 1983, given this more
exacting burden. Id. at 1386 n*; see also Poole, 922 F.3d at 98–99 (Livingston. J,
dissenting) (discussing the Armstrong decision).
Parsing recent Supreme Court pronouncements on implied rights of action,
however, is not really necessary here—belts and suspenders, so to speak. From
the start, this case has been and remains remarkably easy. The CWA simply does
not unambiguously confer a right to foster care maintenance payments
enforceable pursuant to § 1983. The panel majority reaches the opposite
conclusion only by adopting a flawed construction of the Act and ignoring the
Supreme Court’s “repudiat[ion of a] ready implication of a § 1983 action.”
Armstrong, 135 S. Ct. at 1386 n*. Its decision threatens to waste foster care
resources, arbitrarily divert scarce dollars from some children to others, and push
federal courts into a “traditional area of state concern.” Moore v. Sims, 442 U.S.
11
415, 435 (1979). Congress neither intended nor legislated for such an outcome.
Our en banc Court should not countenance it.
* * *
One final word is in order. The narrow vote by a bare majority of our
Court’s active judges to decline en banc review might lead a reader to infer that
these judges concur in the panel majority’s holding and reasoning, despite all the
arguments presented in the dissent. That would be a big mistake. Because of
our Circuit’s so-called “tradition” of declining en banc review, the fact that six
members of our Court voted to decline review does not mean that they were
convinced that the panel majority is correct. See Ricci v. DeStefano, 530 F.3d 88, 89
(2d Cir. 2008) (Katzmann, J., concurring in the denial of rehearing en banc)
(highlighting the Circuit’s supposed “longstanding tradition of general deference
to panel adjudication—a tradition which holds whether or not the judges of the
Court agree with the panel’s disposition of the matter before it”). Nor does it
follow that these six judges deemed the matter unimportant or unexceptional.
See Landell v. Sorrell, 406 F.3d 159, 167 (2d Cir. 2005) (Sack & Katzmann, JJ.,
concurring in the denial of rehearing en banc) (suggesting that en banc review “only
forestall[s] resolution of issues destined . . . for the Supreme Court”). But see Ricci,
12
530 F.3d at 92 (Jacobs, J., dissenting from the denial of rehearing en banc) (“If issues
are important enough to warrant Supreme Court review, they are important
enough for our full Court to consider and decide on the merits.”).
Our so-called en banc “tradition,” however, is not a license to disregard the
substantial consequences that will accompany this Court’s mistaken judgments.
Once the mandate issues in this case, the district court must commence its review
of how New York “determined the amounts it pays” to those receiving foster care
maintenance payments, and “how it has quantified the costs of the specific
expenses listed in Section 675(4),” Poole, 922 F.3d at 82, so as to decide whether to
approve or reject the State’s foster care rates (again, as applied to a subset of its
foster care parents and providers). In its petition for rehearing, New York warns
that such review will unjustifiably inject federal courts into the “complex,
judgment-laden process” by which New York, like other States, determines when
and how to cover costs for particular children in foster care. Petition for
Rehearing at 20. Resources may—and likely will—be squandered in litigation
destined to produce “multiple, inconsistent” results. Id. at 3. Tradition
shouldn’t prevent this Court from reviewing an issue of such consequence.
As set forth above, the panel majority made a mistake in interpreting this
13
Spending Clause statute to impose a mandatory spending obligation on States,
enforceable under § 1983. The full Court also errs in declining en banc review, but
perhaps with less excuse. The panel majority simply made a mistake. To the
extent that this en banc vote comes down to nothing more than an ostensible
tradition, the full Court, with eyes open, has refused to afford New York State, the
amici, and the foster care children within our jurisdiction the consideration they
deserve.
14
José A. Cabranes, Circuit Judge, dissenting from the order denying rehearing en
banc:
I respectfully join in Judge Livingston’s opinion. The dissenters having
failed to persuade a majority of the active judges to rehear this appeal, our
concerns necessarily now rest in the hands of our highest court. I write
separately, and in my name alone, for the sole purpose of re-stating some earlier
observations regarding aspects of the en banc practice of the Second Circuit. See
generally United States v. Taylor, 752 F.3d 254, 255–57 (2d Cir. 2014) (Cabranes, J.,
dissenting from order denying rehearing en banc).
As I observed on that earlier occasion, an observer can draw only one firm
conclusion from our decision not to rehear this case before the full court of active
judges—namely, that the opinion dissenting from the denial of en banc review
(here, by Judge Livingston) is, by definition, an expression of the view of the five
subscribing judges that the panel’s resolution of this case presents legal issues of
exceptional importance.
By contrast, the order denying rehearing without elaboration may, or may
not, reflect the substantive views of the particular judges in the six-judge
majority voting against rehearing.
1
In light of how judges in the Second Circuit have historically exercised
their discretion, the decision not to convene the en banc court does not
necessarily mean that a case either lacks significance or was correctly decided.
Indeed, the contrary may be true. The story of our vaunted en banc “traditions”
is fully described in my dissent from the denial of rehearing in Taylor. Suffice it to
say that this tradition is a sometime thing, and some who invoke it have no
difficulty abandoning it when convenient.
All one can know for certain about a vote like this one is that six active
circuit judges did not wish to rehear this case—perhaps because of a general
aversion to en banc rehearings, perhaps out of confidence that the Supreme
Court will solve our problem, or perhaps because doing so would signal their
investment in “collegiality”—while the five other active circuit judges strongly
believed that the panel opinion presented multiple legal errors of exceptional
importance warranting correction.
2