Rosie D. Ex Rel. John v. Swift

United States Court of Appeals
For the First Circuit

No. 02-1604

ROSIE D., BY HER PARENTS, JOHN AND DEBRA D., ET AL.,
Plaintiffs, Appellees,

v.

JANE M. SWIFT, ACTING GOVERNOR, ET AL.,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin and B. Fletcher,* Senior Circuit Judges.

Deirdre Roney, Assistant Attorney General, with whom Thomas F.
Reilly, Attorney General, was on brief, for appellants.
Steven J. Schwartz, with whom Cathy E. Costanzo, Center for
Public Representation, James C. Burling, Sara J. Shanahan, John S.
Rhee, Hale and Dorr, LLP, Frank Laski, and Mental Health Legal
Advisors were on brief, for appellees.
Steven A. Hitov and Victoria Pulos on brief for National
Health Law Program, National Alliance for the Mentally Ill,
National Mental Health Ass'n, National Ass'n of Protection and
Advocacy Systems, Mass. Law Reform Institute, Western Mass. Legal
Services, and the Judge David L. Bazelon Center for Mental Health
Law, amici curiae.

November 7, 2002

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*Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
 SELYA, Circuit Judge. In recent years, the Supreme Court

has redefined the calculus of federalism, tilting the scales more

and more toward states' rights. This appeal represents an attempt

by the named defendants — a complement of Massachusetts officials,

including the governor, two cabinet officers, and the Commissioner

of the Division of Medical Assistance — to capitalize upon that

trend. As we explain below, they seek to push the envelope too

far.

We begin with basics. In this class action, the

plaintiffs seek prospective injunctive relief to vindicate their

view that the federal Medicaid Act requires Massachusetts to

provide home-based mental health services to Medicaid-eligible

children. The defendants resist the plaintiffs' interpretation of

the Medicaid Act. As a preliminary matter, however, they claim

that the Eleventh Amendment bars the prosecution of the plaintiffs'

action in a federal court (and, thus, obviates any need to address

the substantive question).

The district court rejected the defendants' Eleventh

Amendment sortie, and the defendants thereupon filed this

interlocutory appeal. We affirm the district court's ruling.

While recent Supreme Court decisions have made some inroads on the

venerable doctrine of Ex parte Young, 209 U.S. 123 (1908), they

have not eviscerated that doctrine, and only very narrow exceptions

infringe on the well established right to ask for prospective

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injunctive relief against state officials in a federal forum.

Consequently, the Eleventh Amendment does not preclude the

maintenance of this action.

I. BACKGROUND

Congress created the Medicaid program, 42 U.S.C. §§ 1396-

1396v, in 1965. Over time, it augmented the program's coverage to

provide early and periodic screening, diagnosis and treatment

(EPSDT) services to Medicaid-eligible children. See id. §§

1396a(a)(10), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5). Congress

intended that these revisions would give children access to

preventive health care (e.g., vision, hearing, and dental

services), preempt the onset of childhood illness, and identify

children with disabilities in need of early attention. See, e.g.,

H.R. Rep. No. 101-247, at §§ 4211-4214 (1989), reprinted in 1989

U.S.C.C.A.N. 1906, 2121-2127; S. Rep. No. 90-744, at § II-G (1967),

reprinted in 1967 U.S.C.C.A.N. 2834, 2869-2871. The EPSDT reforms

enacted by Congress in 1989 (as part of the Omnibus Budget

Reconciliation Act of 1989, Pub. L. No. 101-239, 103 Stat. 2106)

were particularly noteworthy in two pertinent respects. First,

Congress obligated participating states to provide a comprehensive

package of preventive services that met reasonable standards of

medical necessity. 42 U.S.C. §§ 1396a(a)(43), 1396d(r). Second,

Congress expanded EPSDT services to include "[s]uch other necessary

health care, diagnostic services, treatment, and other measures

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described [as medical assistance] to correct or ameliorate defects

and physical and mental illnesses and conditions discovered by the

screening services, whether or not such services are covered under

the State plan." Id. § 1396d(r)(5). In effect, these amendments

required states to provide Medicaid coverage for any service

"identified as medically necessary through the EPSDT program." 135

Cong. Rec. S6899, 6900 (daily ed. June 19, 1989) (statement of Sen.

Chafee).

The case before us arises out of a dispute over the

Commonwealth's obligations under sections 1396a(a)(43) and

1396d(r)(5). The plaintiffs are nine Medicaid-eligible children,

acting through their parents or guardians, who seek to compel the

Commonwealth to furnish them with home-based mental health

services. Although their particular ailments vary, each plaintiff

has been diagnosed with a severe psychiatric or behavioral

disorder. These debilitating conditions have led to a wide array

of unhappy results, including expulsions from schools, cyclical

transfers between treating facilities, repeated hospitalizations,

and years spent away from family members at crisis stabilization

units.

In the plaintiffs' view, the Massachusetts Medicaid

program, as presently administered, relies almost exclusively on

institution-based psychiatric care. The plaintiffs allege that

such a narrowly focused treatment regime cannot rehabilitate (and,

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indeed, may exacerbate) their conditions; that home-based

psychiatric care is medically necessary for effective treatment;

that the Commonwealth, notwithstanding its clear statutory

obligation to provide such services, has taken no action; and that

its lethargy flies in the face of the EPSDT mandates.

To right these perceived wrongs, the plaintiffs invoked

42 U.S.C. § 1983 and brought suit in federal district court.1 They

claim to represent thousands of Medicaid-eligible children,

resident in Massachusetts, who suffer from similarly severe

behavioral, emotional, and psychiatric disorders and who require

home-based care. The gravamen of their complaint is that the

Medicaid statute entitles the members of the putative class to, and

obligates the Commonwealth to provide, intensive home-based mental

health services. They further allege that the defendants'

persistent denial of such medically necessary treatment has created

a "mental health crisis" within Massachusetts. On this basis, they

1
Section 1983 provides in pertinent part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof
to the deprivation of any rights, privileges,
or immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress . . . .

42 U.S.C. § 1983.

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ask the district court to order the defendants to reform the

Massachusetts Medicaid program to include the home-based mental

health care that the EPSDT provisions allegedly require.

The defendants moved to dismiss the action on three

grounds. First, they claim that the Commonwealth's sovereign

immunity, enshrined in the Eleventh Amendment of the United States

Constitution, bars the suit.2 Second, they assert that the EPSDT

provisions of the Medicaid Act do not create private rights

enforceable under section 1983. Third, they posit that the

plaintiffs' complaint fails to state an actionable claim. The

plaintiffs opposed this motion and the district court, ruling ore

sponte, denied it.

The defendants responded by filing this interlocutory

appeal. The appeal is proper as to the Eleventh Amendment issue,

as pretrial orders granting or denying Eleventh Amendment immunity

are immediately appealable. See P.R. Aqueduct & Sewer Auth. v.

2
The amendment reads:

The Judicial power of the United States shall
not be construed to extend to any suit in law
or equity, commenced or prosecuted against one
of the United States by Citizens of another
State, or by Citizens or Subjects of any
Foreign State.

U.S. Const. amend. XI. Despite its phrasing, the amendment
consistently has been read to render a state immune from suits
brought in federal courts both by its own citizens and by citizens
of other states. E.g., Employees of Dep't of Pub. Health & Welfare
v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); Fred
v. Roque, 916 F.2d 37, 38 (1st Cir. 1990) (per curiam).

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Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993). We affirm the

district court's ruling as it pertains to the issue of Eleventh

Amendment immunity. The other facets of the order denying the

motion to dismiss are not ripe for review, and we express no

opinion as to those issues.

II. ANALYSIS

As a general matter, the Eleventh Amendment bars suits in

federal courts against unconsenting states (including "official

capacity" suits against state hierarchs). De Leon Lopez v.

Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir. 1991)

(collecting cases). This proscription is subject to a well

recognized exception memorialized in Ex parte Young, 209 U.S. at

159-60. The exception allows federal courts, "notwithstanding the

absence of consent, waiver or evidence of congressional assertion

of national hegemony, [to] enjoin state officials to conform future

conduct to the requirements of federal law." Lane v. First Nat'l

Bank, 871 F.2d 166, 172 n.5 (1st Cir. 1989) (quoting Ramirez v.

P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983)).

For nearly a century, the doctrine of Ex parte Young

flourished and suits against state officials seeking prospective

injunctive relief were commonplace. E.g., Quern v. Jordan, 440

U.S. 332, 346-47 (1979); Ramirez, 715 F.2d at 697; Coalition for

Basic Human Needs v. King, 654 F.2d 838, 842 (1st Cir. 1981) (per

curiam). Lately, however, the Supreme Court has fashioned an

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exception to the exception, applicable to certain cases in which

"Congress has created a remedial scheme for the enforcement of a

particular federal right." Seminole Tribe v. Florida, 517 U.S. 44,

74 (1996). Since the plaintiffs here sue only for prospective

injunctive relief, and do so under the imprimatur of Ex parte

Young, this case requires us to evaluate, for the first time, the

extent to which Seminole Tribe has narrowed the Ex parte Young

exception.

The litigants sketch the suggested contours of this new

limitation in very different ways. The plaintiffs (and the amici)

view Seminole Tribe as a rara avis, asserting that it relates only

to those few federal statutes that contain comprehensive remedial

schemes, and otherwise leaves the doctrine of Ex parte Young alive

and well. The defendants contend that the Seminole Tribe

constraint applies much more broadly. They tell us that, under

Seminole Tribe, the inquiry into the applicability of Ex parte

Young in any given case turns upon a comparison between the

remedies conferred by the statute governing the dispute and the

judicial remedies available under Ex parte Young; whenever the

statute provides anodynes that are more limited than those allowed

under Ex parte Young, a complainant's redress is restricted to the

former (and, accordingly, Ex parte Young becomes a dead letter).

For purposes of analysis, we turn directly to the

defendants' argument. The defendants base their assessment of the

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diminished efficacy of the Ex parte Young exception on their

reading of two recent Supreme Court cases. They asseverate that,

in Seminole Tribe, the Court examined the remedial provisions

created by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§

2701-2721, and asked whether those remedies were more circumscribed

than the relief available under Ex parte Young. Seminole Tribe,

517 U.S. at 74-75. The defendants also contend that in a

subsequent case, Verizon Md., Inc. v. Pub. Serv. Comm'n, 122 S. Ct.

1753, 1761 (2002), the Court undertook a similar inquiry with

respect to the Telecommunications Act of 1996, Pub. L. No. 104-104,

110 Stat. 56 (codified, as amended, in scattered sections, chiefly

in 47 U.S.C. §§ 151-615). Building on this foundation, the

defendants argue that Ex parte Young remains ascendant only when

the applicable statute authorizes a set of remedies more far-

reaching than prospective injunctive relief.

Clinging to this approach, the defendants visualize the

case at hand through the prism of the "fair hearing" requirement of

the Medicaid statute, 42 U.S.C. § 1396a(a)(3). That provision,

nestled among a long list of requirements imposed on state plans,3

declares tersely that "[a] State plan for medical assistance must

. . . provide for granting an opportunity for a fair hearing before

the State agency to any individual whose claim for medical

3
One commentator suggests that "Section 1396a is generally
regarded to be the longest sentence in the English language."
Barry R. Furrow et al., Health Law § 12-1, at 2 n.2 (2d ed. 2000).

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assistance under the plan is denied or is not acted upon with

reasonable promptness." According to the defendants, this language

supplies a remedy (a fair hearing) more limited than that available

under Ex parte Young (prospective injunctive relief), and, thus,

precludes the use of Ex parte Young as an instrument for piercing

the shield of the Commonwealth's Eleventh Amendment immunity.4

To be sure, recent Supreme Court decisions have redefined

Eleventh Amendment jurisprudence in a variety of ways. E.g., Alden

v. Maine, 527 U.S. 706, 712-15 (1999); Fla. Prepaid Postsecondary

Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 635-36 (1999);

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267-70, 281-82 (1997).

We have termed this movement a "sea change" in constitutional

doctrine. Jusino Mercado v. Commonwealth of Puerto Rico, 214 F.3d

34, 38 (1st Cir. 2000). But even sea changes have limited (albeit

significant) effects — and the Supreme Court has not yet signaled

a willingness to curtail the Ex parte Young exception as

drastically as the defendants suggest.

4
We assume, without deciding, that the defendants are correct
in their assertion that section 1396a(a)(3) offers remedies that
are narrower than the prospective injunctive relief available under
Ex parte Young. It is unsettling, however, that the defendants
base this assertion in large measure on the regulations that
implement the statute — 42 C.F.R. §§ 431.200-250 — rather than on
the statutory text. In both Seminole Tribe and Verizon, the Court
looked only at the statutory language, not at any accompanying
regulations. That may well be significant, as regulatory language
is not invariably a reliable guide to congressional intent.

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 The fatal flaw in the defendants' argument lies in their

misreading of Seminole Tribe. The Supreme Court did not, as the

defendants would have it, place primacy on the presence of

statutory limitations on remedies. Rather, the Court read the

remedial limitations imposed by the IGRA merely as a clue from

which to deduce congressional intent. See Seminole Tribe, 517 U.S.

at 75-76 (explaining that Congress's decision "to impose upon the

State a liability that is significantly more limited than would be

the liability imposed upon the state officer under Ex parte Young

strongly indicates that Congress had no wish to create the

latter"). Thus, the nature and scope of the IGRA's remedial scheme

was instrumental in the Court's ruling only to the extent that

those attributes spoke to congressional intent. And in terms of

that intent, the key factors in Seminole Tribe were the intricacy

and detail of the statute's remedial scheme. Id. at 74. In other

words, it was the comprehensiveness of the remedial scheme that

suggested an intention to pretermit Ex parte Young relief. See id.

Perscrutation of the Court's decision in Verizon

reinforces this point. The Verizon Court emphasized the centrality

of congressional intent, basing its decision on whether "the 1996

[Telecommunications] Act display[ed] any intent to foreclose

jurisdiction under Ex parte Young." 122 S. Ct. at 1761. The

Court's passing mention of limited remedies served only to

highlight Congress's apparent motive.

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 Properly read, Seminole Tribe and Verizon provide clear

guideposts as to how lower courts should approach the inquiry into

congressional intent. In each instance, the Court placed great

emphasis on the detail and intricacy of the underlying statute's

remedial scheme as indicators of congressional intent. Following

this train of thought, the Seminole Tribe Court concluded that "the

intricate procedures set forth in [the IGRA] show that Congress

intended therein not only to define, but also to limit

significantly, the [available remedies]." 517 U.S. at 74. The

Court similarly keyed the more general proposition on statutory

detail: "where Congress has prescribed a detailed remedial scheme

for the enforcement against a State of a statutorily created right,

a court should hesitate before casting aside those limitations and

permitting an action against a state officer based upon Ex parte

Young." Id. So too Verizon, 122 S. Ct. at 1761, in which the

Court compared the level of detail and intricacy of the IGRA with

the 1996 Telecommunications Act and found the latter insufficient

to betoken an intent to foreclose Ex parte Young relief.

The short of it is that, as the defendants suggest,

Seminole Tribe and Verizon provide a roadmap for testing the

continued vitality of the Ex parte Young exception on any given set

of facts. But contrary to the defendants' importunings,5 that

5
We note at this juncture that the defendants' reading of
Seminole Tribe is in direct conflict with the Court's statement
there that "we do not hold that Congress cannot authorize federal

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roadmap directs us to pay particular attention to

comprehensiveness, that is, statutory detail and intricacy, as one

indication of congressional intent as it pertains to the Ex parte

Young exception. Applying this mode of analysis to the case at bar

yields a straightforward result.

The Medicaid Act contains no comprehensive set of

remedies. The single artifact relied upon by the defendants — the

fair hearing provision — does not approach the standard of

comprehensiveness required under Seminole Tribe and Verizon as a

basis for trumping Ex parte Young. Rather, section 1396a(a)(3)

merely guarantees a fair hearing to Medicaid beneficiaries. It

neither offers any detail as to how states must conduct such

hearings nor erects any ancillary remedial structures. This lies

in sharp contrast to the IGRA, 25 U.S.C. § 2710(d)(3), a statute

setting forth a web of procedures "prescrib[ing] that a court could

issue an order directing the State to negotiate, that it could

require the State to submit to mediation, and that it could order

that the Secretary of the Interior be notified." Verizon, 122 S.

Ct. at 1761 (discussing the IGRA). Indeed, the pertinent

provisions of the Telecommunications Act, 47 U.S.C. § 252(e)(6),

which the Verizon Court found lacking in comprehensiveness (and,

thus, inadequate to supplant an Ex parte Young action), 122 S. Ct.

jurisdiction under Ex parte Young over a cause of action with a
limited remedial scheme." 517 U.S. at 75 n.17 (emphasis in
original).

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at 1761, afforded far more intricacy and detail than the Medicaid

provision at issue here. Whereas section 252(e)(6) is tailored to

apply specific sections of the Telecommunications Act to certain

disputes, the Medicaid fair hearing reference is a standardless

generality, open to interpretation by the states.

We add, moreover, that even aside from its lack of

comprehensiveness, section 1396a(a)(3) offers no intimation of a

congressional intent to foreclose other remedies. The provision

merely requires states to provide Medicaid beneficiaries with a

fair hearing to contest an agency decision (something that the Due

Process Clause might require in any case).

For these reasons, we hold that the Eleventh Amendment

does not prevent Medicaid beneficiaries from seeking prospective

injunctive relief against state officials in a federal court. In

so holding, we preserve three decades of case law refusing to

construe the Eleventh Amendment to prohibit suits for prospective

injunctive relief involving Title XIX of the Social Security Act.

E.g., Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 521-22 (1990)

(permitting suit against state Medicare intermediaries in

connection with hospital reimbursement); Maine v. Thiboutout, 448

U.S. 1, 5-6 (1980) (permitting suit against officials distributing

AFDC payments); Rosado v. Wyman, 397 U.S. 397, 405-06 (1970)

(permitting suit by welfare recipients against state welfare

administrators); Visiting Nurse Ass'n of N. Shore, Inc. v. Bullen,

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93 F.3d 997, 1002-05 (1st Cir. 1996) (permitting suit by health

care providers against Medicaid program officials over

reimbursement rates); Mass. Ass'n of Older Ams. v. Sharp, 700 F.2d

749, 750-52 (1st Cir. 1983) (permitting suit by families to prevent

termination of Medicaid benefits vis-à-vis stepchildren). That

jurisprudence includes several cases holding that the Eleventh

Amendment does not bar suits seeking prospective injunctive relief

against state actors relative to EPSDT benefits. E.g., Mitchell v.

Johnston, 701 F.2d 337, 344 (5th Cir. 1983); Stanton v. Bond, 504

F.2d 1246, 1251 (7th Cir. 1974). This line of cases seems solidly

embedded in constitutional terrain left undisturbed by Seminole

Tribe. Reversing these precedents would require a dramatic — and

unwarranted — departure from both the common understanding of Ex

parte Young and its historic role in administering the Social

Security Act.6

We note, too, that our holding today aligns us with a

broad coalition of other courts which, subsequent to Seminole

Tribe, have rejected similar arguments aimed at barring suits for

prospective injunctive relief commenced by Medicaid beneficiaries

against state actors. See, e.g., Frazar v. Gilbert, 300 F.3d 530,

6
Although the defendants seek support for such a departure in
a recent decision of this court, see Greenless v. Almond, 277 F.3d
601 (1st Cir. 2002), that case offers them no succor. There, we
dismissed a private claim under the Medicaid statute on the basis
of statutory interpretation. Id. at 608-09. We explicitly
refrained from ruling on the question of sovereign immunity. Id.
at 606-07.

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550-51 & n.109 (5th Cir. 2002) (concluding that the Medicaid Act

does not possess an intricate remedial scheme regulating

noncompliance by states and permitting Ex parte Young action on

behalf of Medicaid beneficiaries to secure EPSDT benefits); Mo.

Child Care Ass'n v. Cross, 294 F.3d 1034, 1038 (8th Cir. 2002)

(concluding "that the [Child Welfare Act of 1980, Title IV-E of the

Social Security Act] does not reflect any intent to limit Ex parte

Young actions"); Antrican v. Odom, 290 F.3d 178, 190 (4th Cir.

2002) (holding that "the Medicaid Act does not provide the type of

detailed remedial scheme that would supplant an Ex parte Young

action"); Westside Mothers v. Haveman, 289 F.3d 852, 862 (6th Cir.

2002) (holding that the Medicaid Act provision allowing reduction

of funds to noncompliant states "is not a detailed 'remedial'

scheme sufficient to show Congress's intent to preempt an action

under Ex parte Young"); Joseph A. ex rel. Corrine Wolfe v. Ingram,

275 F.3d 1253, 1264 (10th Cir. 2002) (explaining that neither the

Adoption and Safe Families Act nor the Adoption Assistance and

Child Welfare Act "provide remedial schemes sufficient to foreclose

Ex parte Young jurisdiction").

III. CONCLUSION

We need go no further. To recapitulate, we conclude that

in determining whether a statute's remedial provisions preclude

prospective injunctive relief under the doctrine of Ex parte Young,

the proper test involves an inquiry into Congress's intent. Here,

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that inquiry centers on determining whether the remedial scheme is

sufficiently comprehensive to indicate that Congress intended to

foreclose such relief. The fair hearing requirement set forth in

42 U.S.C. § 1396a(a)(3) falls well short of this benchmark.

Consequently, Ex parte Young controls. We conclude, therefore,

that the buckler of Eleventh Amendment immunity does not protect

state officials from federal court suits for prospective injunctive

relief under the Medicaid Act. The plaintiffs thus may proceed

with the prosecution of the instant action.

Affirmed.

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