NEW YORK STATE CITIZENS' COALITION FOR CHILDREN, Plaintiff-Appellant, v. Sheila J. POOLE, Acting Commissioner for the New York State Office of Children and Family Services, in his official capacity, Defendant-Appellee., 935 F.3d 56

NEW YORK STATE CITIZENS' COALITION FOR CHILDREN, Plaintiff-Appellant, v. Sheila J. POOLE, Acting Commissioner for the New York State Office of Children and Family Services, in his official capacity, Defendant-Appellee. No. 14-2919 United States Court of Appeals, Second Circuit. August 16, 2019 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. 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. 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. 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 supplies," id. § 675(4)(A), pursuant to a statute that contains not a word of guidance for making such judgments.

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 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 Center , --- U.S. ----, 135 S. Ct. 1378, 1389, 191 L.Ed.2d 471 (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 regime " of readily implied causes of action. Alexander v. Sandoval , 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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 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. See Poole , 922 F.3d at 86-92 (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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (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, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). After all, "[t]he legitimacy of Congress' power to legislate ... 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, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) (quoting Pennhurst , 451 U.S. at 17, 101 S.Ct. 1531 ); 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. The panel majority inexplicably charges that the dissent inappropriately "read[s] the tea leaves" to reach this conclusion, Poole , 922 F.3d at 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, 117 S.Ct. 1353, 137 L.Ed.2d 569 (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." 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, 117 S.Ct. 1353. If so, that factor weighs against the existence of the right. See id. Here, calculating the appropriate "cost" of "foster care mai