Free Motion to Dismiss - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 SUSAN M. CARSON Supervising Deputy Attorney General 3 GEORGE PRINCE, State Bar No. 133877 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 4 San Francisco, CA 94102-7004 Telephone: (415) 703-5749 5 Fax: (415) 703-5480 6 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Defendants. 22 23 TO PLAINTIFFS CALIFORNIA STATE FOSTER PARENT ASSOCIATION, v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family services Division of the California Department of Social Services, in her official capacity,, CALIFORNIA STATE FOSTER PARENT ASSOCIATION, CALIFORNIA STATE CARE PROVIDERS ASSOCIATION, and LEGAL ADVOCATES FOR PERMANENT PARENTING,, Plaintiffs, C 07-5086 JL DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES Hearing: December 19, 2007 Time: 9:30 a.m. Courtroom: F, 15th floor Judge: The Honorable James Larson IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

24 CALIFORNIA STATE CARE PROVIDERS ASSOCIATION, LEGAL and ADVOCATES FOR 25 PERMANENT PARENTING, AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE THAT defendants John Wagner and Mary Ault will move

27 this Court, on December 19, 2007, at 9:30 a.m., or as soon thereafter as the matter may be heard, 28 in Courtroom F, the Honorable James Larson, presiding, in the United States District Courthouse
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1 at 450 Golden Gate Avenue, San Francisco, California, for an order dismissing this action for 2 failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal 3 Rules of Civil Procedure. 4 Defendants' motion to dismiss is made on the ground that plaintiff's complaint cannot

5 be sustained against defendants because plaintiff does not have a private right of action under 42 6 U.S.C. section 1983 to enforce the provisions of the Child Welfare Act cited in this case (Title 7 IV-E of the Social Security Act, 42 U.S.C. §§ 670-679b). 8 This motion is based on this notice of motion and motion, the supporting memorandum

9 of points and authorities, the proposed order, a copy of which is included with this notice of 10 motion and motion, and on the pleadings and records on file with the Court in this matter. 11 12 13 MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF THE CASE This is a civil-rights lawsuit filed October 3, 2007, purportedly on the basis of 42

14 U.S.C. § 1983, by plaintiffs California State Foster Parent Association (CSFPA), California State 15 Care Providers Association (CSCPA), and Legal Advocates for Permanent Parenting (LAPP).1/ 16 Plaintiffs state that they bring this action "on behalf of licensed foster parents who elect to care 17 for abused and neglected children who have been removed from the custody of their parents by 18 operation of state law." (Complaint for Declaratory Judgment and Permanent Injunctive Relief 19 (Complaint), p. 1:2-4.) Plaintiffs allege that the foster care maintenance payments made by 20 California do not cover the costs incurred by foster parents, and that defendants thus violate the 21 federal Child Welfare Act.2/ (Complaint, generally.) 22 23 24 25 1. By stipulation of the parties, defendants have been granted an extension of time, to and through November 6, 2007, in which to respond to the complaint.

2. Title IV-E of the Social Security Act, 42 U.S.C. sections 670-679b ("Part E. Federal Payments for Foster Care and Adoption Assistance"). Plaintiff does not clearly specify any 26 substantive provision of the Child Welfare Act in its allegations against defendants, but refers to 42 U.S.C. section 675, the "Definitions" portion, to contend that defendants violate the Child Welfare 27 Act by not paying "the actual cost" of the items set forth in section 675(4)(A). (Complaint, p. 8:2326.) However, the term "actual" does not appear in section 675(4)(A). 28
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Plaintiffs describe themselves as California corporations representing the interests of

2 foster parents with respect to matters relating to the State of California and the Department of 3 Social Services's administration of the Aid to Families with Dependent Children - Foster Care 4 program (Complaint, p. 3:11-12; 4:9-11; and 4:24-25), but specifically note that they are 5 bringing this action "without the participation of an individual member of CSFPA" (id., p. 3:18), 6 "without the participation of an individual member of LAPP" (id., p. 4:6), and "without the 7 participation of an individual member of CSCPA" (id., p. 4:21). 8 9 10 11 12 ARGUMENT THIS ACTION SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AS THERE IS NO PRIVATE RIGHT OF ACTION UNDER SECTION 1983 AVAILABLE TO THESE PLAINTIFFS TO ENFORCE THOSE PORTIONS OF THE CHILD WELFARE ACT AT ISSUE IN THIS ACTION. The gravamen of plaintiffs' case is that defendants have failed "to comply with the

13 Child Welfare Act's mandated factors in setting rates for foster care maintenance payments [and 14 thus deprive] the Plaintiffs and the foster parents they represent of their federal rights, privileges 15 and immunities under color of state law in violation of 42 U.S.C. § 1983." (Complaint, p. 13:1716 20.) This conclusory contention fails to state a claim upon which relief can be granted because 17 there is no private right of action available to these plaintiffs under 42 U.S.C. section 1983 18 (Section 1983) to enforce those provisions of the Child Welfare Act at issue. 19 20 A. Plaintiffs' Burden Under the Applicable Legal Standards. To sustain their claims for relief here, plaintiffs must demonstrate that they seek

21 redress for violation of a federal right, not just a federal law. Gonzaga University v. Doe, 536 22 U.S. 273, 283 (2002). Specifically, plaintiffs must thus show that they have rights under the 23 Child Welfare Act. 24 In Gonzaga, the Supreme Court clarified the principles to be applied in determining

25 whether a federal statute enacted pursuant to Congress's spending power confers individual 26 rights enforceable under 42 U.S.C. § 1983. The Court began by confirming that private 27 enforcement of Spending Clause statutes is the rare exception. "`In legislation enacted pursuant 28 to the spending power, the typical remedy for state noncompliance with federally imposed
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1 conditions is not a private cause of action for noncompliance but rather action by the Federal 2 Government to terminate funds to the State.'" Gonzaga, 536 U.S. at 280, quoting Pennhurst 3 State School and Hospital v. Halderman, 451 U.S. 1, 28 (1981). Therefore, "unless Congress 4 `speaks with a clear voice' and manifests an `unambiguous' intent to confer individual rights, 5 federal funding provisions provide no basis for private enforcement by § 1983. (Citation 6 omitted.)." Id. 7 8 B. Clarification of the Blessing v. Freestone Factors: Creation of an Unambiguous Right. The Court in Gonzaga also addressed the "confusion" that had led some courts to

9 misinterpret its prior decisions, including Blessing v. Freestone, 520 U.S. 329 (1997), as 10 endorsing a less stringent standard. In Blessing, the Court had formulated a three-factor test to 11 evaluate whether Congress had conferred an enforceable right: (1) Congress must have intended 12 that the statutory provision in question to benefit the plaintiff; (2) the right must not be so "vague 13 and amorphous" as to be "beyond the competence of the judiciary to enforce;" and (3) the statute 14 "must be couched in mandatory, rather than precatory, terms." 520 U.S. at 340-41.3/ While not 15 abandoning the test, the Gonzaga Court dispelled any suggestion that the first Blessing factor 16 stood for the proposition that Congressional intent to permit enforcement under § 1983 will be 17 found "so long as the plaintiff falls within the general zone of interest that the statute is intended 18 to protect."4/ Id. at 283. That the statute "benefits" the plaintiff is insufficient ­ the provision 19 must unambiguously create a right: 20 21 22 23 3. The Supreme Court granted certiorari in Blessing to resolve disagreement among the 24 Courts of Appeals as to whether individuals could sue state officials under Section 1983 for 25 violations of Title IV-D of the Social Security Act. 520 U.S. at 339-340. Justice O'Connor's opinion, for a unanimous court, held that Title IV-D did not give individuals a federal right to force 26 a state agency to substantially comply with Title IV-D. Id. at 333. Part D of Title IV immediately precedes Part E, at issue here, in the Social Security Act. 27 4. See 31 Foster Children v. Bush, 329 F. 3d 1255, 1269-1270 (11th Cir. 2003) ("The 28 Supreme Court in Gonzaga clarified the first of the Blessing requirements.").
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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. Section 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Accordingly, it is rights, not the broader or vaguer "benefits" or "interests" that

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may be enforced under the authority of that section. (Emphasis original.)

2 Id. And, because only rights may be enforced, the Court's implied right of action cases "should 3 guide the determination of whether a statute confers rights enforceable under § 1983." Id. 4 5 C. Statutory Analysis Under Gonzaga. As Gonzaga explains, under the private right of action cases, the "text and structure"

6 of the statute must demonstrate that Congress unambiguously intended to grant individual rights. 7 536 U.S. at 286. Critical to this inquiry is whether the statutory provision uses "rights-creating" 8 language. 536 U.S. at 287; Alexander v. Sandoval, 532 U.S. 275, 288-289 (2001). Such 9 language must clearly impart an "individual entitlement," and have an "unmistakable focus on 10 the benefitted class." Id.; Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13 (1979) (text 11 of statute must be "phrased in terms of the person benefitted.") "Statutes that focus on the 12 person regulated rather than the individuals protected create no implication of an intent to confer 13 rights on a particular class of person." (Internal quotes and citation omitted). Gonzaga, 536 14 U.S. at 287, quoting Alexander, 532 U.S. at 289. "If [the statute] provide[s] some indication that 15 Congress may have intended to create individual rights, and some indication it may not have, 16 that means Congress has not spoken with the requisite `clear voice.' Ambiguity precludes 17 enforceable rights." 31 Foster Children, 329 F. 3d at 1270. The Gonzaga Court invoked as 18 exemplars of "rights-creating" language Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 19 2000d) and Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a). Each of those 20 statutes provides: "No person in the United States shall . . . be subject to discrimination." 21 According to Gonzaga, this language creates individual rights because it is phrased "with an 22 unmistakable focus on the benefitted class." 536 U.S. at 284 (quoting Cannon, 441 U.S. at 691) 23 (emphasis original). 24 Additional closely related principles relevant to determining whether the text and

25 structure of a statutory provision manifest a congressional intent to confer an enforceable right 26 include: (1) statutes that have an "aggregate" focus rather than a focus upon whether the needs of 27 any particular person has been satisfied do not give rise to individual rights; (2) statutes that 28 speak only in terms of institutional policy and practice do not evince an intent to create private
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1 rights of enforcement; (3) a statutory provision that references the individual only in the context 2 of describing the type of policy or practice that will trigger a funding prohibition, does not reflect 3 a congressional intent to create a private right of action; and (4) a provision that allows a state 4 entity to avoid a loss of federal funds through substantial compliance reflects a congressional 5 intent to confer group rather than individual rights. Gonzaga, 536 U.S. at 288. 6 In explaining just what is required to demonstrate Congress's intent to create an

7 individual right enforceable under Section 1983, the Ninth Circuit, in Sanchez v. Johnson, 416 8 F.3d 1051 (2005), recited examples given by the Gonzaga Court "of paradigmatic rights9 creating language" used by the Congress in Title VI of the Civil Rights Act of 1964 ("No person 10 in the United States shall ... be subjected to discrimination") and in Title IX of the Education 11 Amendments of 1972 ("No person in the United States shall, on the basis of sex ... be subjected 12 to discrimination"). Sanchez, 415 F.3d at 1058. The Ninth Circuit then added: 13 14 15 16 Id. 17 18 D. Plaintiffs Lack Any Basis for Their Claims. Applying the principles discussed above to the instant action demonstrates that nothing Although our inquiry should not be limited to looking for these precise phrases, statutory language less direct must be supported by other indicia so unambiguous that we are left without any doubt that Congress intended to create an individual, enforceable right remediable under § 1983.

19 in Title IV-E grants any unambiguous right enforceable by Section 1983 to the instant plaintiffs. 20 21 1. The "Text and Structure" of Part IV-E Benefits Children, Not Foster Parents Plaintiffs' contention that its members are entitled to relief under Section 1983 is

22 belied by the clear language of Part IV-E. That Part contains no language susceptible of 23 interpretation as benefitting or creating rights for foster parents, who make up plaintiffs' 24 constituent members. To the extent there is any "rights-creating" language,5/ the intended 25 holders of the right are the individual beneficiaries of the services -- that is, the children6/ -- not 26 27 28 5. Gonzaga, 536 U.S. at 287; Alexander, 532 U.S. at 288-289. 6. Alexander, 532 U.S. at 288-289; Cannon, 441 U.S. at 692, n. 13.
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1 the providers of those services, here, foster parents.7/ To the extent the providers are mentioned, 2 the references are analogous to the references to Medicaid providers that were discussed by the 3 Ninth Circuit in Sanchez: "The text does at least refer explicitly to Medicaid providers, but as a 4 means to an administrative end rather than as individual beneficiaries of the statute." Id., 416 5 F.3d at 1059. The Sanchez court added that the Medicaid providers "may certainly benefit from 6 their relationship with the State, but they are, at best, indirect beneficiaries and it would strain 7 common sense to read [42 U.S.C. § 1396a(a)(30)(a), a provision at issue in Sanchez] as creating 8 a `right' enforceable by them." Id. 9 Moreover, just as the true beneficiaries of Part IV-E are children, the focus of the

10 statutes is clearly on the State and its responsibilities to those children. (See, for example, 42 11 U.S.C. section 671 -- entitled "State plan for foster care and adoption assistance" -- which sets 12 forth the burdens on a State for the receipt of federal funding.) Nothing within this detailed 13 section suggests any intent by Congress to confer rights on anyone save for those children.8/ 14 15 16 // 17 18 19 20 21 22 23 24 25 26 27 7. In ASW v. Oregon, 424 F.3d 970 (2005), the Ninth Circuit found that Part IV-E did create federally enforceable rights to (1) payment determinations (per 42 U.S.C. § 673(a)(3)) and (2) fair hearings before state agencies to challenge individual benefit reductions (per 42 U.S.C. § 671(a)(12)). However, those rights were specific to the parents of adopted children. This is distinguishable from the instant action, where plaintiffs are not parents, nor even providers of benefits to children, but merely organizations claiming an enforceable right through their averments that they represent foster parents they claim are adversely affected by defendants' allegedly wrongful actions. (Complaint, paragraphs 4, 6, and 9, generally.) Moreover, the payment determinations and fair hearings that were the subject of the ASW v. Oregon decision were based on a provision of the Child Welfare Act involving a written agreement between parties -- i.e., state or other agencies and prospective adoptive parents -- which involved specificity as to those parties on matters of payments, services, and assistance under the written agreements. (See 42 U.S.C. section 675(3).) That differs from the general "foster care maintenance payments" provisions at issue here, which involve neither individualized agreements between "parties" nor specific determinations of how to determine costs. (See 42 U.S.C. section 675(4)(A).)

8. Gonzaga, 536 U.S. at 287, quoting Alexander v. Sandoval, 532 U.S. at 289. And, to the extent the Ninth Circuit's decision in ASW v. Oregon (footnote 7, ante) found otherwise, the right 28 found extended, again, only to the adoptive parents of those children.
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2. The Other Gonzaga Principles Also Militate Against Plaintiff Here. Analyzing the instant case under the other principles discussed in Gonzaga9/ as

3 relevant to determining whether the text and structure of a statutory provision manifest a 4 congressional intent to confer an enforceable right yield no better result for plaintiffs. 5 First, the statutes comprising Part IV-E have an "aggregate" focus on a state's

6 obligations to provide support to foster children, rather than a focus upon whether the needs of 7 any particular person. To the extent they can be construed to focus on anyone in particular, that 8 focus is on individual children, not a care provider.10/ 9 Second, Part IV-E speaks almost entirely in terms of institutional policy and practice

10 and -- again -- to the extent it suggests any intention to create private rights of enforcement, 11 those rights redound to the children, not their foster parents. 12 Third, the provisions of Part IV-E reference the individual beneficiaries (children)

13 largely in the context of describing the type of policies or practices that will trigger funding 14 prohibitions. For example, again, 42 U.S.C. section 671 -- "State plan for foster care and 15 adoption assistance" -- sets forth the burdens on a state for the receipt of federal funding and 16 hence details what policies and practices, if not followed, will result in a loss of funding to the 17 state. And, again, to the extent that the creation by Congress of any private right of action could 18 be inferred from this language, that right would be for children, not their foster parents. 19 Finally, although it is not entirely clear from Part IV-E whether substantial compliance

20 with its provisions will allow a state entity to avoid a loss of federal funds, the focus of those 21 provisions remains on benefitting the children, not the foster parents of those children. 22 23 24 9. 536 U.S. at 288 10. After plaintiffs filed this action they also filed an "Administrative Motion to Consider Whether Cases Should be Related" in California Alliance of Child and Family Services v. Allenby, 25 et al., C 06-4095 MHP, an action involving not dissimilar allegations to those in this case, but involving foster care group home providers. Both plaintiff and defendants in that action have 26 opposed the administrative motion to relate on several bases, including the differing factual and legal issues of the two cases. 27 28
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In sum, after Gonzaga, it matters not that plaintiffs -- even if they were foster parents,

2 and not merely organizations that claim to represent aggrieved foster parents -- may fall within 3 the "general zone of interest" Part IV-E is intended to protect. Id., 536 U.S. at 283. As the 4 Ninth Circuit pointed out in Sanchez, even being the intended beneficiary of a statute is not 5 enough: "Gonzaga made it clear that simply being the intended beneficiary of a statute is not 6 enough to demonstrate the intentional creation of an enforceable right." Sanchez, 416 F.3d at 7 1062. "After Gonzaga," the Ninth Circuit added, "there can be no doubt that, to satisfy the 8 Blessing test, a plaintiff seeking redress under § 1983 must assert the violation of an individually 9 enforceable right conferred specifically upon him, not merely a violation of federal law or the 10 denial of a benefit or interest, no matter how unambiguously conferred." Id. (emphasis original). 11 And where, as in the instant case, a plaintiff fails the first prong of the Blessing test, there is no 12 need to consider the second and third prongs. See id. 13 That the Child Welfare Act may benefit plaintiffs directly or indirectly is insufficient;

14 to be actionable under Section 1983, the provisions of those statutes must unambiguously create 15 an enforceable right, which, for plaintiffs, they do not. 16 17 18 19 20 21 22 23 24 25 26 // 27 // 28
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CONCLUSION Plaintiffs' conclusory assertion that its members have been deprived of their federal

3 rights, privileges, and immunities under color of state law in violation of 42 U.S.C. section 1983 4 does not withstand scrutiny. Accordingly, for the reasons stated above, defendants Wagner and 5 Ault respectfully request that this Court dismiss plaintiffs' complaint pursuant to Rule 12 (b)(6) 6 of the Federal Rules of Civil Procedure. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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40184436.wpd SF2007402761

Dated: November 6, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California SUSAN M. CARSON Supervising Deputy Attorney General

/s/ George Prince GEORGE PRINCE Deputy Attorney General Attorneys for Defendants

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