Title Sabree ex rel Sabree v. Richman
Date 2004
By
Subject Other\Concurring
Contents
180 367 FEDERAL REPORTER, 3d SERIES
devising a way to reason to this conclusion under the statute, I write separately to stress that this logic should not compel that we combine definitions within this sec- tion, as a general rule. Rather, only where an offense is a hybrid—as I submit theft by deception is—and the aggravated felony classifications contain two distinct, clearly applicable tests, should we conclude that both must be fulfilled in order for the offense to qualify as an aggravated felony.
,
Hassan SABREE, By his Mother and Next–Friend, Hana SABREE; Cather- ine Meade, By her Father and Next– Friend, Robert A. Meade; Joseph Fra- zier, By his Mother and Next–Friend, Patricia Frazier, for Themsleves and All Others Similarly Situated
v.
* Estelle B. RICHMAN, In Her Official Capacity as Secretary of the Depart- ment of Public Welfare of the Com- monwealth of Pennsylvania
Hassan Sabree, Catherine Meade, and
Joseph Frazier, Appellants
* {Substitution Pursuant to Clerk’s Order dated 3/28/03 and F.R.A.P. Rule 43(c)}
No. 03–1226.
United States Court of Appeals, Third Circuit.
Argued Sept. 11, 2003. Filed May 11, 2004.
Background: Class of mentally retarded
Medicaid recipients sued the Secretary of
Pennsylvania’s public welfare department, pursuant to § 1983, seeking to vindicate purported right to small community-based intermediate care facilities for mentally re- tarded persons. The United States District Court for the Eastern District of Pennsyl- vania, Herbert J. Hutton, J., 245
F.Supp.2d 653, granted Secretary’s motion to dismiss, and recipients appealed. Holding: The Court of Appeals, Barry, Circuit Judge, held, as a matter of first impression, that: Medicaid statute requir- ing states to provide medical assistance covering medical services from an interme- diate care facility for persons with mental retardation with reasonable promptness unambiguously conferred individual feder- al rights enforceable under § 1983. Reversed and remanded.
Alito, Circuit Judge, concurred and filed opinion.
1. Civil Rights O1052
Medicaid statute requiring states to provide medical assistance covering medi- cal services from an intermediate care fa- cility for persons with mental retardation with reasonable promptness unambiguous- ly conferred individual federal rights that could be privately enforced through § 1983 action. 42 U.S.C.A. § 1983; Social Securi- ty Act, §§ 1902(a)(8, 10), 1905(a)(15), as amended, 42 U.S.C.A. §§ 1396a(a)(8, 10),
1396d(a)(15).
2. Civil Rights O1308
A plaintiff’s ability to invoke § 1983 cannot be defeated simply by the availabil- ity of administrative mechanisms to pro- tect the plaintiff’s interests. 42 U.S.C.A.
§ 1983.
Stephen F. Gold, (Argued), Philadelphia, PA and Ilene W. Shane, Disabilities Law Project, Philadelphia, PA, for Appellants.
SABREE EX REL. SABREE v. RICHMAN
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181
Doris M. Leisch, (Argued), Common- wealth of Pennsylvania, Department of Public Welfare, Philadelphia, PA and John A. Kane, Commonwealth of Pennsylvania, Office of Legal Counsel, Department of Public Welfare, Harrisburg, PA, for Appel- lees.
Sarah Somers, Jane Perkins, National Health Law Program, Chapel Hill, NC, for Amicus–Appellants.
Before ALITO, BARRY, and AMBRO, Circuit Judges.
OPINION OF THE COURT BARRY, Circuit Judge.
I. INTRODUCTION
When Congress offers money to the states, it often imposes conditions on ac- ceptance. States welcome federal funding to help underwrite many of the core ser- vices they provide to their citizens. Edu- cation, healthcare, and public safety, to name a few, while typically state concerns, are usually funded in part by federal dol- lars that come with strings attached. This case raises the question-not new, but of first impression in this Court following Gonzaga University v. Doe, 536 U.S. 273,
122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)-of what happens when a state allegedly fails
to live up to the conditions imposed on it by Congress.
Plaintiffs are a class of mentally retard- ed adults in need of medical services from an intermediate care facility for persons with mental retardation (‘‘ICF/MR ser- vices’’). Although they qualify for state assistance to obtain these services under the Medicaid Act, that assistance has not been forthcoming. In an effort to force Pennsylvania to provide the needed ser- vices, plaintiffs, pursuant to 42 U.S.C.
§ 1983, sued the Secretary of the Pennsyl- vania Department of Public Welfare. Pennsylvania argues that it would provide assistance if it could but that it cannot, and that, in any event, the sole remedy for its non-compliance with the Medicaid Act is the suspension or revocation of funding
1from Congress. We disagree.
The District Court, relying heavily on Gonzaga University, concluded that Con- gress had not unambiguously conferred the rights that plaintiffs sought to vindi- cate under § 1983, and dismissed the suit.2
Sabree v. Houston, 245 F.Supp.2d 653, 659
(E.D.Pa.2003). At first blush, language in Gonzaga University would appear to sup- port that conclusion. In Gonzaga Univer- sity, the Court foreclosed the ability of a student to enforce, by means of § 1983, provisions of the Family Educational Rights and Privacy Act of 1974 (‘‘FER-
1. There appears to be a disagreement among our sister courts of appeals as to whether, pursuant to Medicaid, a state must merely provide financial assistance to obtain covered services, or provide the services themselves. See Bruggeman v. Blagojevich, 324 F.3d 906,
910 (7th Cir.2003) (‘‘ T he statutory reference to ‘assistance’ appears to have reference to financial assistance rather than to actual medical services, though the distinction was missed in Bryson v. Shumway, 308 F.3d 79,
81, 88–89 (1st Cir.2002) and Doe v. Chiles,
136 F.3d 709, 714, 717 (11th Cir.1998).’’). The only issue before us, however, is whether plaintiffs may sue Pennsylvania under 42
U.S.C. § 1983 to obtain the ‘‘assistance’’ for which they qualify. To resolve this issue we need not, and do not, address the remedy that might be available to plaintiffs, but leave that to the District Court in the first instance.
2. Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘‘of any rights, privileges, or immuni- ties secured by the Constitution and laws.’’
42 U.S.C. § 1983. Rights conferred by feder- al statute are enforceable under § 1983. Maine v. Thiboutot, 448 U.S. 1, 4–8, 100 S.Ct.
2502, 65 L.Ed.2d 555 (1980).
182 367 FEDERAL REPORTER, 3d SERIES
PA’’).3 Gonzaga Univ., 536 U.S. at 283,
122 S.Ct. 2268. The Chief Justice, writing for the Court, stated emphatically: ‘‘We now reject the notion that our cases permit anything short of an unambiguously con- ferred right to support a cause of action brought under § 1983.’’ Id. (emphasis added).
The Court, no doubt, has set a high bar for plaintiffs. Nonetheless, after having considered the relevant provisions of the Medicaid Act against the backdrop of Gon- zaga University, we are convinced that Congress unambiguously conferred the rights which plaintiffs here seek to en- force. Accordingly, we will reverse the order of the District Court.
II. DISCUSSION
Title XIX of the Social Security Act, codified at 42 U.S.C. §§ 1396–1396v and popularly known as the ‘‘Medicaid Act,’’ established a ‘‘cooperative federal-state program under which the federal govern- ment furnishes funding to states for the purpose of providing medical assistance to eligible low-income persons.’’ Pa. Pharm. Ass’n v. Houstoun, 283 F.3d 531, 533 (3d
Cir.2002). States are not required to par- ticipate in the program, but states that do accept federal funding must comply with the Medicaid Act and with regulations pro- mulgated by the Secretary of Health and Human Services (‘‘HHS’’). Participating states must devise and implement a state medical assistance plan that is approved by the Secretary of HHS. 42 U.S.C.
§ 1396; 42 C.F.R. § 430.10. A state that fails to comply with its medical assistance plan runs the risk of having its funding revoked by the Secretary. 42 U.S.C.
§ 1396c.
There is no dispute that plaintiffs qualify for ICF/MR services under Pennsylvania’s medical assistance plan. Nor is it disputed that plaintiffs have languished on waiting lists for years, unable to obtain these ser- vices. The only dispute, and the one now before us, is whether plaintiffs may sue Pennsylvania under § 1983 to enforce the provisions of Title XIX that require (1) a state to provide medical assistance cover- ing ICF/MR services, and (2) to do so with
‘‘reasonable promptness.’’ 42 U.S.C.
§§ 1396a(a)(8),4 1396a(a)(10),5 and
1396d(a)(15).6
3. The relevant FERPA language mandated:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of edu- cation records (or personally identifiable information contained therein TTT) of stu- dents without the written consent of their parents to any individual, agency, or organ- ization.
20 U.S.C. § 1232g(b)(1).
4. Section 1396a(a)(8) provides in relevant part:
A State plan for medical assistance must TTT provide that all individuals wishing to make application for medical assistance un- der the plan shall have opportunity to do so, and that such assistance shall be fur- nished with reasonable promptness to all eligible individuals TTTT
42 U.S.C. § 1396a(a)(8) (emphasis added).
5. Section 1396a(a)(10) provides in relevant part: ‘‘A State plan for medical assistance must TTT provide TTT for making medical as- sistance available, TTT to TTT all eligible indi- viduals TTTT’’ 42 U.S.C. § 1396a(a)(10) (em- phasis added).
6. Section 1396d(a)(15) provides in relevant part:
For purposes of this title 42 U.S.C. §§ 1396 et seq. TTT t he term ‘‘medical assistance’’ means payment of part or all of the cost of the following care and services TTT for indi- viduals TTT who are eligible: TTT services in an intermediate care facility for the men- tally retardedTTTT
42 U.S.C. § 1396d(a)(15).
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That plaintiffs merit sympathy does not escape our notice, but neither does it gov- ern our reasoning. Rather, Gonzaga Uni- versity provides the dispassionate lens through which this matter must be viewed. A three-step analysis is required. First, we must examine Gonzaga University to determine the essential characteristics of an ‘‘unambiguously conferred right.’’ Sec- ond, we must assess whether the statutory language of Title XIX imparts an ‘‘unam- biguously conferred right.’’ Third, we must determine-if an individual right has been unambiguously conferred-whether Congress has precluded individual enforce- ment of that right. This analysis, which, as will become clear, is assuredly not for the timid, compels the conclusion that the provisions invoked by plaintiffs–42 U.S.C.
§§ 1396a(a)(8), 1396a(a)(10), and
1396d(a)(15)-unambiguously confer rights vindicable under § 1983.
A. Gonzaga University v. Doe and Un- ambiguously Conferred Rights— Step One
As the Court explained more than twen- ty years ago, ‘‘ i n legislation enacted pur- suant to the spending power, the typical remedy for state noncompliance with fed- erally imposed conditions is not a private cause of action for noncompliance but rath- er 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). Nonetheless, as the Court observed in Gonzaga University, in some instances Congress has unambiguously conferred rights that may be vindicated by individual suits brought under § 1983.7
In Gonzaga University, the plaintiff sought to enforce conditions imposed on the State of Washington by FERPA.8
‘‘Congress enacted FERPA under its spending power to condition the receipt of federal funds on certain requirements re- lating to the access and disclosure of stu- dent educational records.’’ Gonzaga Univ., 536 U.S. at 278, 122 S.Ct. 2268. Ultimately, the Court rejected the viability of plaintiff’s claim because it concluded that in FERPA Congress had not ‘‘intend- ed to create a federal right.’’ Id. at 283,
122 S.Ct. 2268 (emphasis in original); see also id. at 291, 122 S.Ct. 2268 (Breyer, J., concurring) (‘‘The ultimate question, in re- spect to whether private individuals may bring a lawsuit to enforce a federal statute, through 42 U.S.C. § 1983 or otherwise, is a question of congressional intent.’’ ) (em- phasis added).
Accordingly, we must determine wheth- er Congress intended to confer the rights claimed by plaintiffs. Gonzaga University instructs that congressional intent is mani-
7. We take as a given that when seeking re- dress under § 1983 for violation of a statutory right, a plaintiff need not establish that Con- gress intended to confer a remedy in addition to that right. See, e.g., Gonzaga Univ., 536
U.S. at 284, 122 S.Ct. 2268 (‘‘Plaintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.’’).
That § 1983 provides a remedy for statuto- rily conferred rights ‘‘makes obvious sense.’’
Id. at 285, 122 S.Ct. 2268. While the creation of statutorily specific remedies would make our task easier, Congress has chosen to pro- vide § 1983 as an all purpose remedy. Obvi- ously, we cannot require a clear statement rule mandating the specification of a right to sue within the statutory text; to do so would effectively repeal § 1983. Instead, we must, as the Court demonstrates in Gonzaga Univer- sity, examine the statutory text to determine whether Congress has unambiguously con- ferred an individual right.
8. For the relevant FERPA language, see note
3, supra.
184 367 FEDERAL REPORTER, 3d SERIES
fest only when statutory language unam- biguously confers such rights. Id. at 283,
122 S.Ct. 2268. To determine what statu- tory language is necessary to confer rights unambiguously, we turn first to the cases in which the Court addressed statutory actions brought under § 1983. We then consider what the Court means in Gonza- ga University when it requires ‘‘rights- creating language.’’ Id. at 287, 122 S.Ct.
2268.
1. Statutory Rights and 42 U.S.C.
§ 1983
Since Pennhurst, only twice has the Court recognized a congressional intent to confer statutory rights vindicable via
§ 1983: Wright v. Roanoke Redevelop- ment & Housing Authority, 479 U.S. 418,
107 S.Ct. 766, 93 L.Ed.2d 781 (1987), ad- dressing the Public Housing Act; and Wil- der v. Virginia Hospital Ass’n, 496 U.S.
498, 110 S.Ct. 2510, 110 L.Ed.2d 455
(1990), addressing Title XIX of the Social
Security Act. The Court has foreclosed
§ 1983 suits in two equally significant cases (in addition to Gonzaga University ): Suter v. Artist M., 503 U.S. 347, 112 S.Ct.
1360, 118 L.Ed.2d 1 (1992), addressing the Adoption Assistance and Child Welfare Act of 1980; and Blessing v. Freestone,
520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d
569 (1997), addressing Title IV–D of the
Social Security Act.
While in Gonzaga University the Court
‘‘reject ed the notion that its TTT cases permit anything short of an unambiguous- ly conferred right to support a cause of action brought under § 1983,’’ it carefully avoided disturbing, much less overruling, Wright and Wilder. Gonzaga Univ., 536
U.S. at 283, 122 S.Ct. 2268. Indeed, as the ensuing analysis will demonstrate, the Court relied on those cases in crafting Gonzaga University. Accordingly, we will assess the rights claimed by plaintiffs in light of Wright, Wilder, Suter, and Bless- ing, as construed by Gonzaga University.
(a) Wright v. Roanoke Redevelopment
& Housing Authority
In Wright, the Court permitted a § 1983 suit by tenants to recover past over- charges under a rent-ceiling provision of the Public Housing Act.9 As explained in Gonzaga University, three factors moti- vated the Wright Court to conclude ‘‘that the provision unambiguously conferred ‘a mandatory benefit focusing on the indi- vidual family and its income.’ ’’ Gonzaga Univ., 536 U.S. at 280, 122 S.Ct. 2268
(quoting Wright, 479 U.S. at 430, 107 S.Ct.
766). First, ‘‘ t he key to the Court’s inquiry was that Congress spoke in terms that ‘could not be clearer.’ ’’ Id. Second, Congress ‘‘conferred entitlements ‘suffi-
9. The Public Housing Act provided in relevant part:
Dwelling units assisted under this chapter shall be rented only to families who are lower income families at the time of their initial occupancy of such units. Reviews of family income shall be made at least annu- ally. A family shall pay as rent for a dwell- ing unit assisted under this chapter (other than a family assisted under section
1437f(o) of this title) the highest of the following amounts, rounded to the nearest dollar:
(1) 30 per centum of the family’s monthly adjusted income;
(2) 10 per centum of the family’s monthly income; or
(3) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accor- dance with the family’s actual housing costs, is specifically designated by such agency to meet the family’s housing costs, the portion of such payments which is so designated.
42 U.S.C. § 1437a (1982 ed. and Supp. III)
(emphasis added).
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185
ciently specific and definite to qualify as enforceable rights under Pennhurst.’ ’’ Id.
(quoting Wright, 479 U.S. at 432, 107 S.Ct.
766). Third, ‘‘the federal agency charged with administering the Public Housing Act
‘had never provided a procedure by which tenants could complain to it about the al- leged failures of state welfare agencies to abide by the Act’s rent-ceiling provi- sion .’ ’’ Id. (quoting Wright, 479 U.S. at
426, 107 S.Ct. 766).
(b) Wilder v. Virginia Hospital Ass’n In Wilder, the Court permitted a § 1983 action brought by health care providers to enforce a reimbursement provision of Title XIX of the Social Security Act, the same Title at issue here.10 According to Gonza- ga University, the Wilder Court was per- suaded because the relevant Medicaid pro- visions: (1) ‘‘explicitly conferred specific monetary entitlements upon the plaintiffs’’;
(2) ‘‘required States to pay an ‘objective’ monetary entitlement to individual health care providers, with no sufficient adminis- trative means of enforcing the requirement against States that failed to comply’’; and
(3) because ‘‘Congress left no doubt of its
intent for private enforcement.’’ Gonzaga
Univ., 536 U.S. at 280–81, 122 S.Ct. 2268
(quoting Wilder, 496 U.S. at 522–23, 110
S.Ct. 2510).
(c) Suter v. Artist M.
In Suter, the Court foreclosed an action under § 1983 brought by a class of parents and children who sought to enforce provi- sions of the Adoption Assistance and Child Welfare Act, which required that states have a ‘‘plan’’ to make ‘‘reasonable efforts’’ to keep children out of foster homes.11
According to Gonzaga University, the Su- ter Court recognized that because the Adoption Act ‘‘conferred no specific, indi- vidually enforceable rights, there was no basis for private enforcement, even by a class of the statute’s principal beneficia- ries.’’ Gonzaga Univ., 536 U.S. at 281, 122
S.Ct. 2268 (citing Suter, 503 U.S. at 357,
112 S.Ct. 1360). Writing for the Court in
Suter, the Chief Justice explained:
Careful examination of the language TTT does not unambiguously confer an en- forceable right upon the Act’s beneficia- ries. The term ‘‘reasonable efforts’’ in this context is at least as plausibly read
10. Title XIX of the Social Security Act provid- ed in relevant part:
A State plan for medical assistance must TTT provide TTT for payment TTT of hospital services, nursing facility services, and ser- vices in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards de- veloped by the State TTT) which the State funds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated fa- cilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individ- uals eligible for medical assistance have reasonable access TTT to inpatient hospital services of adequate quality.
42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V) (emphasis added).
11. In Suter, the Court considered provisions of the Adoption Assistance and Child Welfare Act, which provided in relevant part:
In order for a State to be eligible for pay- ments under this part, it shall have a plan approved by the Secretary which TTT pro- vides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them; TTT and provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his homeTTTT
42 U.S.C. § 671(a)(3), (15) (1988 ed. and
Supp. I) (emphasis added).
186 367 FEDERAL REPORTER, 3d SERIES
to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner of reducing or eliminat- ing payments .
Suter, 503 U.S. 363, 112 S.Ct. 1360 (quoted approvingly by Gonzaga Univ., 536 U.S. at
281, 122 S.Ct. 2268).
(d) Blessing v. Freestone
In Blessing, the Court rejected the claim under § 1983 of five mothers whose children were eligible to receive child sup- port services from the State of Arizona pursuant to Title IV–D of the Social Secu- rity Act.12 Title IV–D of the Social Security Act enumerated various entitlements.13
Without claiming any specific rights under
Title IV–D, the plaintiffs asserted that
‘‘they had an enforceable individual right to have the State’s program achieve ‘sub- stantial compliance’ with the requirements of Title IV–D,’’ as required of the State in Title IV–A.14 Blessing, 520 U.S. at 333, 117
S.Ct. 1353.
In Gonzaga University, the Court ex- plained the logic of the unanimous Bless- ing holding:
Because the provision focused on ‘‘the aggregate services provided by the State,’’ rather than ‘‘the needs of any particular person,’’ it conferred no indi- vidual rights and thus could not be en-
forced by § 1983. We emphasized: ‘‘To seek redress through § 1983, TTT a plaintiff must assert the violation of a federal right, not merely a violation of federal law.’’
Gonzaga Univ., 536 U.S. at 281, 122 S.Ct.
2268 (quoting Blessing, 520 U.S. at 340,
117 S.Ct. 1353 (emphasis in original)). That Blessing garnered unanimous sup- port is not surprising: it is an easy case. The plaintiffs never asserted any individu- al rights but, instead, attempted to enforce Congress’s right to demand ‘‘substantial compliance’’ with the terms of a conditional grant of money. To have allowed the ac- tion to proceed would have transformed
§ 1983 from a vehicle to vindicate personal
rights into a qui tam mechanism.
To evaluate whether Congress had con- ferred enforceable individual rights in a statute, the Blessing Court drew on Wright, Wilder, and Suter, and formulated a three-prong test: a statute must (1) be intended by Congress to benefit the plain- tiff, (2) not be ‘‘vague and amorphous,’’ and
(3) impose an unambiguous ‘‘binding obli- gation on the States.’’ Blessing, 520 U.S. at 340–41, 117 S.Ct. 1353. While in Gon- zaga University the Court did not aban- don this test, it did dispel
the confusion that has led some courts to interpret Blessing as allowing plaintiffs to enforce a statute under
12. 42 U.S.C. §§ 651–69 (1996) (as amended by the Personal Responsibility and Work Op- portunity Reconciliation Act of 1996, Pub.L.
104–193, 110 Stat. 2105 (‘‘PRWOR Act’’)).
13. See, for example, the following provision: A State plan for child and spousal support must TTT provide that the State will TTT provide services relating to the establish- ment of paternity TTT with respect to TTT each child who is eligible TTT and TTT enforce any support obligation established with respect to eligible children TTTT
42 U.S.C. § 654(4)(A)-(B) (1996) (as amended by the PRWOR Act) (emphasis added).
14. Title IV–A of the Social Security Act pro- vided in relevant part:
If a State program TTT is found TTT not to have complied substantially with the re- quirements of the program , and the Secre- tary determines that the program is not complying substantially with such require- ments at the time the finding is made, the Secretary shall reduce the grant payable to the StateTTTT
42 U.S.C. § 609(a)(8) (1996) (as amended by the PRWOR Act) (emphasis added).
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§ 1983 so long as the plaintiff falls with- in the general zone of interest that the statute is intended to protect; some- thing less than what is required for a statute to create rights enforceable di- rectly from the statute itself under an implied private right of action.
Gonzaga Univ., 536 U.S. at 283, 122 S.Ct.
2268. The Court clarified and ‘‘empha- size d that it is only violations of rights, not laws, which give rise to § 1983 ac- tions.’’ Id. at 283, 122 S.Ct. 2268 (citing Blessing, 520 U.S. at 340, 117 S.Ct. 1353
(emphasis in original)).
Significantly, in Blessing the Court did not decide that Title IV–D does not, in fact, confer individual rights. Rather, the Court concluded that plaintiffs had failed to assert any specific rights, instead rely- ing on the general requirement that Ari- zona ‘‘substantially comply’’ with its Child Welfare Plan. Blessing, 520 U.S. at 345–46,
117 S.Ct. 1353 (‘‘We do not foreclose the possibility that some provisions of Title IV–D give rise to individual rightsTTTT
But, it is not at all apparent that respon- dents sought any relief more specific than a declaration that their ‘rights’ were being violated and an injunction forcing Ari- zona’s child support agency to ‘substantial- ly comply’ with all of the provisions of Title IV–D.’’). Consequently, the Court re- manded the case for a determination of whether specific provisions of Title IV–D gave rise to individual rights. Id. at 346,
117 S.Ct. 1353.
2. Rights–Creating Language
To confer rights, Congress must use
‘‘rights-creating language.’’ Gonzaga
Univ., 536 U.S. at 287, 122 S.Ct. 2268. Such language must clearly impart an ‘‘in- dividual entitlement,’’ and have an ‘‘unmis- takable focus on the benefitted class.’’ Id.
(quoting Blessing, 520 U.S. at 343, 117
S.Ct. 1353, and Cannon v. University of
Chicago, 441 U.S. 677, 690–93, 99 S.Ct.
1946, 60 L.Ed.2d 560 (1979)). Cf. Alexan- der v. Sandoval, 532 U.S. 275, 289, 121
S.Ct. 1511, 149 L.Ed.2d 517 (2001) (‘‘Stat- utes that focus on the person regulated rather than the individuals protected cre- ate ‘no implication of an intent to confer rights on a particular class of persons’ ’’)
(quoting California v. Sierra Club, 451
U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d
101 (1981)).
The Chief Justice invoked the implied private right of action cases to demon- strate the type of ‘‘rights-creating terms’’ that unambiguously confer rights.
‘‘ T he question whether Congress TTT intended to create a private right of action is definitively answered in the negative’’ where ‘‘a statute by its terms grants no private rights to any identifi- able class.’’ Touche Ross & Co. v. Red- ington, 442 U.S. 560, 576, 99 S.Ct. 2479,
61 L.Ed.2d 82 (1979). For a statute to create such private rights, its text must be ‘‘phrased in terms of the persons benefitted.’’ Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13, 99
S.Ct. 1946, 60 L.Ed.2d 560 (1979). We have recognized, for example, that Title VI of the Civil Rights Act of 1964 15 and Title IX of the Education Amendments of 1972 16 create individual rights be- cause those statutes are phrased ‘‘with an unmistakable focus on the benefitted
15. Title VI provides: ‘‘No person in the Unit- ed States shall TTT be subjected to discrimina- tion under any program or activity receiving Federal financial assistance’’ on the basis of race, color, or national origin. 42 U.S.C.
§ 2000d (emphasis added).
16. Title IX provides: ‘‘No person in the United States shall, on the basis of sex TTT be subject- ed to discrimination under any education pro- gram or activity receiving Federal financial assistance.’’ 20 U.S.C. § 1681(a) (emphasis added).
188 367 FEDERAL REPORTER, 3d SERIES
class.’’ Id., at 691, 99 S.Ct. 1946 (em- phasis added).
Gonzaga Univ., 536 U.S. at 283–84, 122
S.Ct. 2268.
As with implied private rights of action, statutory claims under § 1983 must be premised on an unambiguous articulation and conferral of rights by Congress.17
‘‘ W here the text and structure of a stat- ute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.’’ Id. at 286, 122 S.Ct. 2268. With this in mind, the Court evaluated FERPA. First, and most importantly, the Court contrasted the ‘‘individually focused’’
‘‘rights-creating’’ language of Title VI and IX (‘‘no person shall be subjected to dis- crimination’’) 18 with FERPA’s general provisions addressing the Secretary of Ed- ucation (‘‘no funds shall be made available’’ to any ‘‘educational agency or institution’’ which has a prohibited ‘‘policy or prac- tice.’’).19 Gonzaga Univ., 536 U.S. at 287,
122 S.Ct. 2268. The Court noted that
‘‘FERPA’s nondisclosure provisions TTT speak only in terms of institutional policy and practice, not individual instances of disclosure.’’ Id. at 288, 122 S.Ct. 2268. The contrast between the language of Ti- tles VI and IX and that of FERPA is stark. The specific, mandatory, individual- ly focused language of Titles VI and IX
confers individual rights, while the aggre- gate, programmatic focus of FERPA’s lan- guage merely creates law applicable to the states. The distinction is dispositive: rights are enforceable under § 1983; laws are not. Gonzaga Univ., 536 U.S. at 283,
122 S.Ct. 2268 (citing Blessing, 520 U.S. at
340, 117 S.Ct. 1353).
Despite the clarity of the statutory lan- guage, the Court went on to bolster its analysis by considering the structural ele- ments of FERPA, which emphasize the programmatic and aggregate focus of the statute. Although references to the indi- vidual appear throughout the text of FER- PA, ‘‘ i n each provision the reference TTT is in the context of describing the type of
‘policy or practice’ that triggers a funding prohibition.’’ Id. Indeed, the fact that Congress ‘‘expressly authorized the Secre- tary of Education to ‘deal with violations’ TTT and to ‘establish or designate a re- view board’ ’’ buttressed the Court’s as- sessment that FERPA did not confer en- forceable rights. Id. at 289, 122 S.Ct. 2268
(citing 20 U.S.C. §§ 1232g(f)-(g)).20 Final- ly, the Court highlighted statutory lan- guage reminiscent of that in Blessing that counseled against a finding of individual rights. See id. (‘‘Recipient institutions can further avoid termination of funding so long as they ‘comply substantially’TTTT This, too, is not unlike Blessing, which
17. The distinction between implied private rights of action and § 1983 private rights of action rests not in the articulation of rights, but in the availability of a remedy. Gonzaga Univ., 536 U.S. at 285, 122 S.Ct. 2268 (‘‘ T he initial inquiry in a private right of action under § 1983 -determining whether a statute confers any right at all-is no different from the initial inquiry in an implied right of action case, the express purpose of which is to deter- mine whether or not a statute ‘confers rights on a particular class of persons.’ ’’) (quoting California v. Sierra Club, 451 U.S. at 294, 101
S.Ct. 1775).
18. See n.15 & n.16, supra.
19. 20 U.S.C. § 1232g(b)(1).
20. Understandably, the Court did not reach the issue of whether the remedial scheme in FERPA was sufficient to preclude a § 1983 suit. Gonzaga Univ., 536 U.S. at 289 n. 8,
122 S.Ct. 2268 (‘‘We need not determine whether FERPA’s procedures are ‘sufficiently comprehensive’ to offer an independent basis for precluding private enforcement due to our finding that FERPA creates no private right to enforce.’’) (citation omitted).
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found that Title IV–D failed to support a
§ 1983 suit in part because it only re- quired ‘substantial compliance’ with feder- al regulations.’’) (citing Blessing, 520 U.S.
329 at 335, 343, 117 S.Ct. 1353, 137
L.Ed.2d 569).
B. Title XIX—Step Two
Having traced the Court’s treatment of statutory rights under § 1983, we now turn to the ‘‘text and structure’’ of Title XIX. Gonzaga Univ., 536 U.S. at 286, 122
S.Ct. 2268.
1. Statutory Text
‘‘We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the lan- guage of the statute itself.’’ Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64
L.Ed.2d 766 (1980).
Plaintiffs seek to enforce the right to acquire ICF/MR services, by virtue of 42
U.S.C. §§ 1396a(a)(10) 21 and
1396d(a)(15).22 The language of the stat- ute requires that a state ‘‘must provide TTT medical assistance TTT to TTT all eligible individuals,’’ and includes intermediate care facilities in the definition of ‘‘medical assistance.’’ 42 U.S.C. §§ 1396a(a)(10) &
1396d(a)(15). Plaintiffs also seek to en- force the right to acquire ICF/MR services with ‘‘reasonable promptness,’’ as required by 42 U.S.C. § 1396a(a)(8).23 The lan- guage of the statute declares that a state
‘‘must provide TTT assistance TTT with rea- sonable promptness to all eligible individu- als.’’ 42 U.S.C. § 1396a(a)(8).
In each of these provisions, the statuto- ry language is clear and unambiguous.
Indeed, we can hardly imagine anyone disputing that a state must provide the as- sistance necessary to obtain ICF/MR ser- vices, and that it must do so with ‘‘reason- able promptness,’’ and the government does not do so. Our inquiry, however, does not end there. Indisputably, these provisions create law, binding on those states choosing to accept Medicaid fund- ing. Whether the same provisions confer rights, enforceable by individuals, is an- other question, and is the question we are called upon to answer.
1 To determine whether these provi- sions provide plaintiffs with unambiguous- ly conferred rights, we begin with what has come to be called the ‘‘Blessing Test.’’ Blessing, 520 U.S. at 340–41, 117 S.Ct.
1353. As discussed above, the plain lan- guage of the statute clearly conveys that a state ‘‘must provide’’ plaintiffs with ‘‘medi- cal assistance,’’ including ICF/MR ser- vices, with ‘‘reasonable promptness.’’ 42
U.S.C. §§ 1396a(a)(10), 1396d(a)(15),
1396a(a)(8). Without difficulty, we con- clude that these provisions satisfy the Blessing Test because: (1) plaintiffs were the intended beneficiaries of
§§ 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8); (2) the rights sought to be enforced by them are specific and enumer- ated, not ‘‘vague and amorphous’’; and (3) the obligation imposed on the states is unambiguous and binding. Id.
But, again, our inquiry does not end there because, as is explained in Gonzaga University, the Blessing Test may only indicate that plaintiffs ‘‘fall within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create
21. For the relevant text of Section
1396a(a)(10), see note 5, supra.
22. For the relevant text of Section
1396d(a)(15), see note 6, supra.
23. For the relevant text of Section
1396a(a)(8), see note 4, supra.
190 367 FEDERAL REPORTER, 3d SERIES
rights enforceable directly from the stat- ute itselfTTTT’’ Gonzaga Univ., 536 U.S. at 283, 122 S.Ct. 2268. To ensure that Congress unambiguously conferred the rights asserted, we must determine wheth- er Congress used ‘‘rights-creating terms.’’ Id. at 284, 122 S.Ct. 2268.
The Court identified the text of Titles VI 24 and IX 25 as exemplars of rights- creating language. Gonzaga Univ., 536
U.S. at 287, 122 S.Ct. 2268. Viewing Titles VI and IX, we find it difficult, if not impos- sible, as a linguistic matter, to distinguish the import of the relevant Title XIX lan- guage-‘‘A State plan must provide’’-from the ‘‘No person shall’’ language of Titles VI and IX. Just as in Titles VI and IX, the relevant terms used in Title XIX are
‘‘mandatory rather than precatory.’’ Blessing, 520 U.S. at 341, 117 S.Ct. 1353. Further, the ‘‘individual focus’’ of Sections
1396a(a)(10), 1396d(a)(15), and 1396a(a)(8) is unmistakable. Gonzaga Univ., 536 U.S. at 287, 122 S.Ct. 2268. The relevant Title XIX provisions enumerate the entitle- ments available to ‘‘all eligible individuals.’’ See, e.g., 42 U.S.C. § 1396a(a)(8). The provisions do not focus on ‘‘the entity TTT regulated rather than the individuals pro- tected.’’ Alexander v. Sandoval, 532 U.S. at 289, 121 S.Ct. 1511. Neither do the statutory references to the individual ap- pear ‘‘in the context of describing the type of ‘policy or practice’ that triggers a fund- ing prohibition.’’ Gonzaga Univ., 536 U.S. at 288, 122 S.Ct. 2268.
In requiring states which accept Medic- aid funding to provide ICF/MR services with reasonable promptness, Congress conferred specific entitlements on individu- als ‘‘in terms that ‘could not be clearer.’ ’’ Gonzaga Univ., 536 U.S. at 280, 122 S.Ct.
2268 (quoting Wright, 479 U.S. at 430, 107
S.Ct. 766). There is no ambiguity. Where, as here, the plain meaning of the text is evident, we need not look further to determine congressional intent. See, e.g., Darby v. Cisneros, 509 U.S. 137, 147, 113
S.Ct. 2539, 125 L.Ed.2d 113 (1993) (‘‘Re- course to the legislative history TTT is un- necessary in light of the plain meaning of the statutory text.’’).26
2. Statutory Structure
‘‘As a general rule of statutory construc- tion, where the terms of a statute are unambiguous, judicial inquiry is complete.’’ Adams Fruit Co. v. Barrett, 494 U.S. 638,
642, 110 S.Ct. 1384, 108 L.Ed.2d 585
(1990). ‘‘General’’ rules, however, are sus- ceptible to exceptions, and we have before us one of those instances in which our inquiry does not end with the plain lan- guage of the statute. We recognize, of course, that ‘‘ s tatutory construction ‘is a holistic endeavor,’ and, at a minimum, must account for a statute’s full text, lan- guage as well as punctuation, structure, and subject matter.’’ United States Nat’l Bank v. Independent Ins. Agents of Am.,
508 U.S. 439, 455, 113 S.Ct. 2173, 124
L.Ed.2d 402 (1993) (quoting United Sav- ings Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371,
24. For the relevant text of Title VI, see note
15, supra.
25. For the relevant text of Title IX, see note
16, supra.
26. We note, however, that plaintiffs have cit- ed legislative history that may be construed to support our reading of the statute. See App. Br. at 20–21 (citing various congressional leg-
islative materials for the proposition that Title XIX authorizes individual suits under § 1983). See, e.g., H.R.Rep. No. 104–651, at 213–14,
731–32, 2019–20 (1996); H.R.Rep. No. 104–
350, at 211, 270, 288, 1069 (1995); and H.R.Rep. No. 97–158, vol. II, at 301 (1981). Because we find the statute unambiguous, however, we do not base our decision on legislative materials, or otherwise pass judg- ment on their relevance to our inquiry.
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108 S.Ct. 626, 98 L.Ed.2d 740 (1988)). In Gonzaga University, the Court instructs that not only should the text of the statute be examined, but also its structure. Gon- zaga Univ., 536 U.S. at 286, 122 S.Ct.
2268. This instruction makes good sense: we cannot presume to confer individual rights-that is a task for Congress. As the Court aptly put it, we ‘‘may play the sor- cerer’s apprentice but not the sorcerer himself.’’ Alexander v. Sandoval, 532 U.S. at 291, 121 S.Ct. 1511. Our judicial func- tion is limited to recognizing those rights which Congress ‘‘unambiguously confers,’’ and in doing so we would be remiss if we did not consider the whole of Congress’s voice on the matter-the statute in its en- tirety.
Turning our sights beyond the narrow provisions invoked by plaintiffs gives us some pause. Indeed, the District Court, basing its decision largely on the structur- al elements of Title XIX, reached the op- posite conclusion from that we reach. The District Court in large part grounded its analysis on 42 U.S.C. §§ 1396 and 1396c, and concluded that those provisions do not contain the rights-creating language re- quired by Gonzaga University. Sabree,
245 F.Supp.2d at 659. Undoubtedly, the
Court was correct in that regard.
The opening section of Title XIX–Sec- tion 1396–is the appropriations and gener- al introductory statement of the Medicaid Act.27 As that Section explains, Title XIX was enacted ‘‘ f or the purpose of enabling each State TTT to furnish TTT medical as- sistance.’’ 42 U.S.C. § 1396. This lan- guage says nothing of individual entitle- ments or rights, but reminds us that we are dealing with an agreement between Congress and a particular state, and re- calls the axiom of Pennhurst: ‘‘In legisla- tion enacted pursuant to the spending power, the typical remedy for state non- compliance with federally imposed condi- tions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.’’ Pennhurst State Sch. & Hosp., 451 U.S. at 28, 101 S.Ct. 1531. Turning next, as did the District Court, to Section 1396(c) does not help in the search for rights-creating language. Sa- bree, 245 F.Supp.2d at 660. Section 1396c empowers the Secretary of HHS to sus- pend payments to a state if it fails to
‘‘comply substantially’’ with the require- ments of Title XIX.28 This language not
27. Section 1396 provides:
For the purpose of enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent chil- dren and of aged, blind, or disabled individ- uals, whose income and resources are in- sufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or selfcare, there is hereby authorized to be appropriated for each fis- cal year a sum sufficient to carry out the purposes of this title. The sums made avail- able under this section shall be used for making payments to States which have sub- mitted, and had approved by the Secretary, State plans for medical assistance.
42 U.S.C. § 1396.
28. Section 1396c provides:
If the Secretary, after reasonable notice and opportunity for hearing to the State agency administering or supervising the adminis- tration of the State plan approved under this title, finds (1) that the plan has been so changed that it no longer complies with the provisions of section 1902; or (2) that in the administration of the plan there is a failure to comply substantially with any such provision; the Secretary shall notify such State agency that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Sec- retary is satisfied that there will no longer be any such failure to comply. Until he is so satisfied he shall make no further pay-
192 367 FEDERAL REPORTER, 3d SERIES
only confirms that Title XIX by its terms creates a relationship between Congress and a particular state, but it recalls, as well, the ‘‘comply substantially’’ language in Blessing and Gonzaga University. Blessing, 520 U.S. at 343, 117 S.Ct. 1353; Gonzaga Univ., 536 U.S. at 289, 122 S.Ct.
2268. Of course, in Blessing and Gonzaga University, such language counseled against the recognition of an unambiguous- ly conferred right.
But while the District Court correctly recognized that Sections 1396 and 1396c do not contain the ‘‘sort of explicit, rights- creating language found in Title VI,’’ it did not consider the existence of rights-creat- ing language in other relevant provisions of Title XIX. Sabree, 245 F.Supp.2d at 659. The language used by Congress in 42
U.S.C. §§ 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8), however, explicitly creates rights. Admittedly, plumbing for congres- sional intent by balancing the specific lan- guage of a few discrete provisions of Title XIX against the larger structural elements of the statute is a difficult task. Nonethe- less, it is evident, at least to us, that the statutory language, despite countervailing structural elements of the statute, unam- biguously confers rights which plaintiffs can enforce.
We conclude that Section 1396, the ap- propriations and general introductory statement, cannot neutralize the rights- creating language of Sections 1396a(a)(10),
1396d(a)(15), and 1396a(a)(8). Our confi- dence in this conclusion rests securely on the fact that the Court has refrained from overruling Wright and Wilder, which up- held the exercise of individual rights under statutes that contain similar (or, in the case of Wilder, identical) provisions to 42
U.S.C. § 1396.
Section 1396 was in effect at the time of Wilder, in which the Court allowed claims to proceed under Title XIX, and a similar provision was in effect when the Court allowed claims to proceed in Wright. 42
U.S.C. §§ 1396 & 1437. But Gonzaga University did not overrule Wilder; rath- er, it explained that ‘‘Congress left no doubt of its intent for private enforce- ment.’’ Gonzaga Univ., 536 U.S. at 280–
81, 122 S.Ct. 2268 (quoting Wilder, 496
U.S. at 522–23, 110 S.Ct. 2510). Neither did the Court overrule Wright; rather, it identified it as an instance in which Con- gress ‘‘unambiguously conferred ‘a manda- tory benefit focusing on the individual family and its income.’ ’’ Gonzaga Univ.,
536 U.S. at 280, 122 S.Ct. 2268 (quoting
Wright, 479 U.S. at 430, 107 S.Ct. 766). We do not diminish the significance of the ‘‘comply substantially’’ language in Section 1396c. Rather, we recognize that the plaintiffs in Blessing sued under a provision requiring ‘‘substantial compli- ance’’ by a state. The Court held that the plaintiffs had no such right in the aggre- gate, but specifically reserved decision on whether they might have individual rights under other provisions of the statute, and remanded for a determination of that is- sue. Blessing, 520 U.S. at 345–46, 117
S.Ct. 1353. This distinction makes good sense: that Congress provides a remedy for itself for non-compliance does not nec- essarily preclude a coherent and coexisting intent to create an enforceable right in individual beneficiaries. Significantly, and unlike the plaintiffs in Blessing and Gon- zaga, plaintiffs here have advanced specific claims, rooted in discrete, rights-creating provisions of Title XIX.
ments to such State (or shall limit payments to categories under or parts of the State plan not affected by such failure).
42 U.S.C. § 1396c (emphasis added).
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C. Congressional Preclusion—Step
Three
Even where a right has been unambigu- ously conferred, a state may rebut the presumption of the availability of § 1983 by demonstrating that Congress, either ex- pressly or by providing a comprehensive remedial scheme, intended to preclude in- dividual suits. See, e.g., Blessing, 520 U.S. at 346, 117 S.Ct. 1353 (‘‘Because petitioner does not claim that any provision of Title IV–D expressly curtails § 1983 actions, she must make the difficult showing that allowing § 1983 actions to go forward in these circumstances ‘would be inconsistent with Congress’ carefully tailored scheme.’ ’’) (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107,
110 S.Ct. 444, 107 L.Ed.2d 420 (1989)). We note, however, that ‘‘ t he burden to demonstrate that Congress has expressly withdrawn the remedy is on the defen- dant,’’ and that a court should ‘‘not lightly conclude that Congress intended to pre- clude reliance on § 1983 as a remedy’’ for deprivation of an unambiguously conferred right. Golden State Transit Corp., 493
U.S. at 107, 110 S.Ct. 444 (citations omit- ted). Indeed, only twice has the Court found a remedial scheme sufficiently com- prehensive to supplant § 1983. See Mid- dlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13, 14, 20, 101
S.Ct. 2615, 69 L.Ed.2d 435 (1981) (‘‘Sea Clammers’’ ) (acknowledging the ‘‘unusual- ly elaborate enforcement provisions’’ em- powering the E.P.A., coupled with several provisions allowing specific instances of private enforcement of the Federal Water Pollution Control Act, and concluding that Congress intended to preclude individual actions not explicitly allowed); Smith v.
Robinson, 468 U.S. 992, 1009–11, 104 S.Ct.
3457, 82 L.Ed.2d 746 (1984) (concluding that because the Education of the Handi- capped Act permitted aggrieved individu- als to invoke carefully tailored local admin- istrative procedures followed by federal judicial review, Congress could not have intended individuals to bypass the enumer- ated procedure and advance directly to court via § 1983).
2 Title XIX contains no provision ex- plicitly precluding individual actions. As a result, there is a substantial burden on a state seeking to establish that Congress has provided a comprehensive remedial scheme with which individual actions can- not be reconciled. Title XIX does allow for a state administrative hearing.29 This is, however, the only remedial component of Title XIX, and clearly falls short of the comprehensive enforcement schemes seen in Sea Clammers and Smith. ‘‘ A plain- tiff’s ability to invoke § 1983 cannot be defeated simply by ‘the availability of ad- ministrative mechanisms to protect the plaintiff’s interests.’ ’’ Blessing, 520 U.S. at 347 (quoting Golden State Transit Corp., 493 U.S. at 106, 110 S.Ct. 444). See also Wilder, 496 U.S. at 523, 110 S.Ct.
2510 (‘‘The availability of state administra- tive procedures ordinarily does not fore- close resort to § 1983.’’).
III. CONCLUSION
Plaintiffs have advanced specific claims rooted in statutory text that identify them as the intended recipients of medical assis- tance from the Commonwealth of Pennsyl- vania. That Congress may choose to sanc- tion Pennsylvania for failure to comply with its own medical assistance plan does not necessarily preclude other repercus-
29. Section 1396a(a)(3) provides in relevant part: ‘‘A State plan for medical assistance must TTT provide for granting an opportunity for a fair hearing before the State agency to
any individual whose claim for medical assis- tance under the plan is denied or is not acted upon with reasonable promptnessTTTT’’ 42
U.S.C. § 1396a(a)(3).
194 367 FEDERAL REPORTER, 3d SERIES
sions, such as individual actions against the Commonwealth. Congress clearly and un- ambiguously conferred the rights of which plaintiffs have allegedly been deprived by Pennsylvania, and has not precluded indi- vidual enforcement of those rights. Ac- cordingly, the order of the District Court will be reversed, and this case will be remanded for further proceedings in accor- dance with this Opinion.
ALITO, Circuit Judge, concurring.
While the analysis and decision of the District Court may reflect the direction that future Supreme Court cases in this area will take, currently binding precedent supports the decision of the Court. I there- fore concur in the Court’s decision.
,
UNITED STATES of America, Plaintiff–Appellee,
v.
Michael A. THOMAS, Defendant– Appellant.
No. 03–4506.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 26, 2004. Decided: May 4, 2004.
Background: Motorist was convicted un- der the Assimilative Crimes Act of fourth- offense driving while intoxicated (DWI) on federal reservation in Virginia, by the United States District Court for the East- ern District of Virginia, Robert E. Payne, J., and he appealed.
Holding: The Court of Appeals, William W. Wilkins, Chief Judge, held that subsec- tion of Maryland driving under the influ- ence (DUI) statute, under which motorist is per se guilty of DUI offense if he or she has threshold blood-alcohol concentration, was not ‘‘substantially similar’’ to Virginia driving while intoxicated (DWI) statute, so that motorist’s prior Maryland convictions, to extent based on this subsection of stat- ute, could not serve as predicate offenses in prosecution for the Virginia crime of fourth-offense DWI.
Vacated and remanded.
1. Criminal Law O1026.10(5)
Defendant’s appeal from district court’s denial of motion to dismiss indict- ment would be treated as challenge to adequacy of factual basis supporting his conditional guilty plea, where defendant, as part of the plea agreement, had re- served right to appeal denial of motion to dismiss, and where, despite purporting to appeal denial of the motion to dismiss, defendant did not challenge sufficiency of indictment allegations, but rather sufficien- cy of record to support finding that he was guilty of offense charged.
2. Indictment and Information
O144.1(1)
To warrant dismissal of indictment, defendant would have to demonstrate that allegations therein, even if true, did not state an offense.
3. Criminal Law O273(4.1)
Federal Rule of Criminal Procedure requiring court, prior to entering judg- ment on guilty plea, to first determine that there is factual basis for plea ensures that court will make clear exactly what defen- dant admits to, and whether those admis- sions are factually sufficient to constitute alleged crime. Fed.Rules Cr.Proc.Rule
11(b)(3), 18 U.S.C.A.
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