Sanchez Ex Rel. Hoebel v. Johnson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHEN SANCHEZ, by and through 
his mother and next friend, Joyce
Hoebel; KORY NIGIAN, by and
through his mother and next
friend, Irene Ybarra; KATHY
TOBIASON, by and through her
mother and next friend, Sandra
Nash; SCOTT DE SANTO; GRACE
EWALT, a minor, by and through
her mother, Suzanne Ewalt; SCOTT
CROSE, by and through his mother No. 04-15228
and conservator, Janice Crose;
EDWARD EDDIE COMPTON, by and
through his parents and next
 D.C. No.
CV-00-01593-CW
friends, Edward and Elaine OPINION
Compton; AUTISM SOCIETY OF LOS
ANGELES; CALIFORNIA
REHABILITATION ASSOCIATION;
CALIFORNIA COALITION OF UNITED
CEREBRAL PALSY ASSOCIATIONS;
EASTER SEALS CALIFORNIA; SYSTEMS
REFORM, INC.; TIERRA DEL SOL,
INC.,
Plaintiffs-Appellants,
v.


8887
8888 SANCHEZ v. JOHNSON

GRANTLAND JOHNSON, in his official 
capacity as Secretary of the
California Department of Health
and Human Services; CLIFFORD
ALLENBY, in his official capacity
as Director of the California
Department of Developmental
Services; DIANE M. BONTA, in her 
official capacity as Director of the
California Department of Health
Services; B. TIMOHTY GAGE, in his
official capacity as Director of the
California Department of Finance,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
December 8, 2004—San Francisco, California

Filed August 2, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
8892 SANCHEZ v. JOHNSON

COUNSEL

Thomas K. Gilhool, The Public Interest Law Center of Phila-
delphia, Philadelphia, Pennsylvania, argued the cause for the
appellants. Michael Churchill, Judith A. Gran, and James
Eiseman, Jr., of The Public Interest Law Center of Philadel-
phia, and Arlene Mayerson and Larisa M. Cummings, of the
Disability Rights Education & Defense Fund, Berkeley, Cali-
fornia, were on the briefs.

Susan M. Carson, Deputy Attorney General, State of Califor-
nia, argued the cause for the appellee. Bill Lockyer, Attorney
General, Teresa Stinson, Supervising Deputy Attorney Gen-
eral, and Elizabeth Edwards, Deputy Attorney General, State
of California, and Henry S. Hewitt, Todd Boley, and Clarisa
R. Canady, of Erickson, Beasley, Hewitt & Wilson LLP, Oak-
land, California, were on the briefs.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether developmentally disabled recipi-
ents of Medicaid funds and their service providers have a pri-
vate right of action against state officials to compel the
enforcement of a federal law governing state disbursement of
such funds. We are also asked to decide, separately, whether
the State of California has unlawfully discriminated by alleg-
edly paying community-based service providers lower wages
and benefits than it pays employees in state institutions.

I

In May, 2000, seven named plaintiffs representing a class
of developmentally disabled individuals, and six organiza-
 SANCHEZ v. JOHNSON 8893
tions that advocate for, or provide community-based services
to, the developmentally disabled, brought this action against
California officials who manage and administer various state
programs for the developmentally disabled.

The class (collectively referred to by reference to the first
named plaintiff as “Sanchez”) consists of those individuals
who would be capable of living in the community with prop-
erly funded support services but who now live in, or are at
risk of living in, state institutions because community-based
services are inadequately funded. All members of the class are
entitled to services under Title XIX of the Social Security
Act, 42 U.S.C. § 1396 et seq. (the “Medicaid Act”), and are
“qualified individual[s] with a disability” under § 504 of the
Rehabilitation Act (“§ 504”), 29 U.S.C. § 794(a), and under
Title II of the Americans with Disabilities Act, 42 U.S.C.
§§ 12131-12134 (the “ADA”).

The organizational plaintiffs (the “Providers”) are not part
of the class, but receive reimbursement from the State of Cali-
fornia under the Medicaid Act for providing services to the
developmentally disabled.

The state officials are, respectively, officials of California’s
Department of Health and Human Services, Department of
Health Services, Department of Developmental Services
(“DDS”) and Department of Finance. These departments
administer and oversee services funded, in part, through the
Medicaid Act. Generally, the Department of Health and
Human Services ensures that the services of the other depart-
ments are provided in compliance with state and federal law;
the Department of Health Services directs, organizes and
administers California’s medical assistance programs, includ-
ing Medi-Cal, California’s Medicaid program; DDS directs,
organizes and administers California’s developmental disabil-
ities services program; and the Department of Finance over-
sees all of the State’s financial and business policies,
including health care funding.
8894 SANCHEZ v. JOHNSON
A

Under the Medicaid Act, the federal government distributes
funds to participating states to help them provide health care
services for the poor and needy. Because California accepts
Medicaid funds, it must administer its state Medicaid pro-
gram, Medi-Cal, in compliance with a state plan that has been
pre-approved by the U.S. Department of Health and Human
Services. The Medicaid Act sets out the requirements for a
state plan at 42 U.S.C. § 1396a(a)(1)-(65).

In 1981, in response to the fact that a disproportionate per-
centage of Medicaid resources were being used for long-term
institutional care and studies showing that many persons
residing in Medicaid-funded institutions would be capable of
living at home or in the community if additional support ser-
vices were available, Congress authorized the Home and
Community Based Services (“HCBS”) waiver program. The
HCBS program allows a variety of noninstitutional care
options for persons who would otherwise be eligible for Med-
icaid benefits in an institution, but who would prefer to live
at home or in the community.1 To obtain a HCBS waiver for
a qualified person, the State must certify that the cost of plac-
ing that individual through the waiver program will be less
than or equal to the cost of his care in an institution. See gen-
erally Olmstead v. L.C., 527 U.S. 581, 601-02 (1999).
1
The program was established under 42 U.S.C. § 1396n(c)(1), which
provides, in part, that:
The Secretary may by waiver provide that a State plan approved
under this title [42 USCS §§ 1396 et seq.] may include as “medi-
cal assistance” under such plan payment for part or all of the cost
of home or community-based services (other than room and
board) approved by the Secretary which are provided pursuant to
a written plan of care to individuals with respect to whom there
has been a determination that but for the provision of such ser-
vices the individuals would require the level of care provided in
a hospital or a nursing facility or intermediate care facility for the
mentally retarded the cost of which could be reimbursed under
the State plan.
 SANCHEZ v. JOHNSON 8895
B

Sanchez and the Providers claim that, because California
pays wages to community-based service providers participat-
ing in the HCBS waiver program at a lower rate than it pays
employees in state institutions, the State is in violation of the
provision of the Medicaid Act that requires that

A State plan for medical assistance — [must] pro-
vide such methods and procedures relating to the uti-
lization of, and the payment for, care and services
available under the plan . . . as may be necessary to
. . . assure that payments are consistent with effi-
ciency, economy, and quality of care and are suffi-
cient to enlist enough providers so that care and
services are available under the plan at least to the
extent that such care and services are available to the
general population in the geographic area[.]

42 U.S.C. § 1396a(a)(30)(A) (“§ 30(A)”). They further claim
that the lower pay in community-based programs has resulted
in some developmentally disabled persons remaining unnec-
essarily institutionalized, which, they allege, constitutes dis-
crimination against them in violation of the ADA and § 504.
Sanchez and the Providers seek injunctive relief requiring the
state officials to increase wages and benefits for community-
based service providers to match substantially the wages and
benefits of employees in state institutions.

C

The state officials moved for judgment on the pleadings
with respect to the § 30(A) claim, on the ground that § 30(A)
does not provide a private right of action enforceable under 42
U.S.C. § 1983 (“§ 1983”), and for summary judgment with
respect to the ADA and § 504 claims, on the ground that San-
chez and the Providers failed to establish sufficient facts
establish a prima facie case for discrimination.
8896 SANCHEZ v. JOHNSON
The district court initially granted the state officials’ sum-
mary judgment motion, but denied the motion for judgment
on the pleadings with respect to the § 30(A) claim. The state
officials subsequently filed a motion for reconsideration of the
§ 30(A) claim in light of the Supreme Court’s intervening
decision in Gonzaga v. Doe, 536 U.S. 273 (2002), which clar-
ified the standard for evaluating whether a statute creates a
private right of action.2 The district court granted the motion
and, by opinion and order dated January 5, 2004, reversed its
earlier decision. Applying the Supreme Court’s guidance in
Gonzaga, the district court concluded that neither Sanchez nor
the Providers could bring suit under § 1983 for a violation of
§ 30(A).

Sanchez and the Providers timely appeal from the district
court’s adverse decisions with respect to both their § 30(A)
and their ADA and § 504 claims.

II

Both Sanchez and the Providers claim that § 30(A) creates
an individual right enforceable by them under § 1983. Their
interests, however, though similar, are not congruent. San-
chez’s claim requires us to decide whether § 30(A) creates a
private right of action for recipients of Medicaid funding; the
Providers’ claim requires us to decide the same question with
respect to providers of Medicaid services. Both claims require
us to consider the current state of the Supreme Court’s private
right of action and § 1983 jurisprudence.
2
Gonzaga involved an alleged violation of the Family Educational
Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. § 1232g, which
prohibits “the federal funding of educational institutions that have a policy
or practice of releasing education records to unauthorized persons.” 536
U.S. at 276. Gonzaga University disclosed a student’s alleged sexual mis-
conduct to the state agency responsible for teacher certification, where-
upon the student sued to enforce the privacy provisions of FERPA. The
Court held that “such an action [was] foreclosed because the relevant pro-
visions of FERPA create no personal rights to enforce under 42 U.S.C.
§ 1983.” Id.
 SANCHEZ v. JOHNSON 8897
A

In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme
Court held for the first time that § 1983 permits suits against
state officials to enforce statutes enacted pursuant to Con-
gress’s spending power. Id. at 4-5. The scope of these new
remedies available under § 1983 was clarified in Pennhurst
State School and Hospital v. Halderman, 451 U.S. 1 (1981),
in which the Court explained that Thiboutot did not alter the
fact that “the typical remedy for state noncompliance with
federally imposed conditions is not a private cause of action
for noncompliance but rather action by the Federal Govern-
ment to terminate funds to the State.” Id. at 28. Pennhurst
established that the remedy announced in Thiboutot was to be
applied sparingly and only to statutes in which Congress
“speak[s] with a clear voice,” and “unambiguously” creates a
“right[ ] secured by the laws of the United States.” Id. at 17,
28 (quotation marks omitted). The Court also advised that the
identification of a substantive right embodied in a statute was
only the first of at least two steps that must be considered
when analyzing whether that right is enforceable under
§ 1983. Id. at 28 n.21 (“Because we conclude that § 6010 con-
fers no substantive rights, we need not reach the question
whether there is a private cause of action under that section
or under 42 U.S.C. § 1983 to enforce those rights.”) (empha-
sis added).

Ten years later, in Wilder v. Virginia Hospital Ass’n, 496
U.S. 498 (1990), the Court held that 42 U.S.C.
§ 1396a(a)(13)(A) (subsequently repealed) of the Medicaid
Act could give rise to a private right of action under § 1983.
Id. at 523. This anomalous decision appeared to mark a sud-
den expansion in the Court’s § 1983 jurisprudence. In hind-
sight, however, it was merely a rare case in which, as the
Court explained in Gonzaga, a statute “explicitly conferred
specific monetary entitlements upon the plaintiffs . . . [and]
8898 SANCHEZ v. JOHNSON
Congress left no doubt of its intent for private enforcement
. . . .” Gonzaga, 536 U.S. at 280.3

[1] In Blessing v. Freestone, 520 U.S. 329 (1997), the
Court finally provided an analytical framework for courts to
use when evaluating whether or not a statute creates a right
enforceable under § 1983. Blessing requires a court to con-
sider three factors: (1) “Congress must have intended that the
provision in question benefit the plaintiff,” id. at 340-41; (2)
“the plaintiff must demonstrate that the right assertedly pro-
tected by the statute is not so ‘vague and amorphous’ that its
enforcement would strain judicial competence,” id. at 340;
and (3) “the statute must ambiguously impose a binding obli-
gation on the states. In other words, the provision giving rise
to the asserted right must be couched in mandatory rather than
precatory terms.” Id. at 341. Somewhat confusingly, the first
Blessing factor addressed whether or not the plaintiff receives
an intended “benefit” from the statute, whereas the second
factor referred not to a “benefit” but to a “right.” In Gonzaga,
the Court resolved this inconsistency.

[2] The Court first acknowledged that “[s]ome language in
our opinions might be read to suggest that something less than
an unambiguously conferred right is enforceable by § 1983.”
Gonzaga, 536 U.S. at 282 (referring specifically to the Bless-
ing test). Correcting this misperception, the Court announced
that

[w]e now reject the notion that our cases permit any-
thing short of an unambiguously conferred right to
3
Justice Stevens, writing in dissent in Gonzaga, even suggested that the
reasoning in Wilder is so out of step with the Court’s holding in Gonzaga
that it has been effectively overruled. Id. at 300 n.8 (Stevens, J., dissent-
ing) (“[Imposing the implied right of action framework upon the § 1983
inquiry] sub silentio overrules cases such as Wright and Wilder. In those
cases we concluded that the statutes at issue created rights enforceable
under § 1983, but the statutes did not ‘clearly and unambiguously,’ . . .
intend enforceability under § 1983.”)
 SANCHEZ v. JOHNSON 8899
support a cause of action brought under § 1983. Sec-
tion 1983 provides a remedy only for the deprivation
of “rights, privileges, or immunities secured by the
Constitution and laws” of the United States. Accord-
ingly, it is rights, not the broader or vaguer “bene-
fits” or “interests,” that may be enforced under the
authority of that section. This being so, we further
reject the notion that our implied right of action
cases are separate and distinct from our § 1983
cases. To the contrary, our implied right of action
cases should guide the determination of whether a
statute confers rights enforceable under § 1983.

Id. at 283. The Court repeatedly stressed that it is Congress’s
use of explicit, individually focused, rights-creating language
that reveals congressional intent to create an individually
enforceable right in a spending statute.4 See Gonzaga, 536
4
The Medicaid Act was promulgated under Congress’s spending power,
see Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 682-83
(2003) (Thomas, J., concurring), which is encompassed in Art. I, § 8, cl.
1, of the United States Constitution. One of the few enumerated grants of
federal legislative authority, see Marbury v. Madison, 5 U.S. 137, 176 1
Cranch 137, 176, 2 L. Ed. 60 (1803) (Marshall, C. J.) (“The powers of the
legislature are defined, and limited; and that those limits may not be mis-
taken, or forgotten, the constitution is written.”), the Spending Clause
states that “Congress shall have Power To . . . provide for the . . . general
Welfare of the United States.” In Pennhurst, the Court advised that, when
reviewing legislation enacted pursuant to the spending power, courts
should be especially reluctant to conclude that Congress intended to create
a new individual right enforceable against the States. Because of the quasi-
contractual nature of Congress’s spending power, states accepting funds
from the federal government must be aware of the conditions attached to
the receipt of those funds so that they can be said to have “voluntarily and
knowingly accept[ed] the terms of the ‘contract.’ ” 451 U.S. at 17. (citing
Steward Machine Co. v. Davis, 301 U.S. 548, 585-598 (1937); Harris v.
McRae, 448 U.S. 297 (1980)). “Accordingly, if Congress intends to
impose a condition on the grant of federal moneys, it must do so unam-
biguously. . . . [and] speak with a clear voice [in order to] enable the States
to exercise their choice knowingly, cognizant of the consequences of their
participation.” Id.
8900 SANCHEZ v. JOHNSON
U.S. at 283-84 (“[T]he question whether Congress 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 identifiable class.”) (quotation marks and alterations
omitted, emphasis added).5

[3] As examples of paradigmatic rights-creating language,
the Court cited the texts of Title VI of the Civil Rights Act of
1964 and Title IX of the Education Amendments of 1972. Id.
at 287 (comparing the text of FERPA unfavorably to “the
individually focused terminology of Titles VI and IX”). Those
5
Relying on an opaque item of legislative history, Sanchez and the Pro-
viders argue that the district court erred by focusing unduly on the explicit
text of the statute to the exclusion of legislative intent. They allege that
classic “rights-creating” language could not be used in § 30(A), since the
section is included as part of the state plan requirements and that, in 1994,
Congress amended the Medicaid Act to provide that
[i]n an action brought to enforce a provision of the Social Secur-
ity Act [42 U.S.C. §§ 301 et seq.], such provision is not to be
deemed unenforceable because of its inclusion in a section of the
Act requiring a State plan or specifying the required contents of
a State plan. This section is not intended to limit or expand the
grounds for determining the availability of private actions to
enforce State plan requirements other than by overturning any
such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992)
but not applied in prior Supreme Court decisions respecting such
enforceability; provided, however, that this section is not
intended to alter the holding in Suter v. Artist M. that section
471(a)(15) of the Act [42 U.S.C. § 671(a)(15)] is not enforceable
in a private right of action.
42 U.S.C. § 1320a-2; accord 42 U.S.C. § 1320a-10. Although this text is
hardly a model of clarity, the caveat that it “is not intended to limit or
expand the grounds for determining the availability of private actions to
enforce State plan requirements” shows that, at the very least, it does not
disturb the Supreme Court’s reasoning in Pennhurst, which was decided
prior to Suter. And as we are bound to follow the Court’s holdings in
Blessing and Gonzaga, which followed the enactment of 42 U.S.C.
§ 1320a-2, this provision does not disturb the general framework that we
—and the district court in this case—have used to analyze private rights
of action under § 1983.
 SANCHEZ v. JOHNSON 8901
statutes provide, respectively, that “No person in the United
States shall . . . be subjected to discrimination,” 42 U.S.C.
§ 2000d, and that “No person in the United States shall, on the
basis of sex . . . be subjected to discrimination.” 20 U.S.C.
§ 1681(a). Although our inquiry should not be limited to look-
ing for those precise phrases, statutory language less direct
than the individually-focused “No person shall . . .” must be
supported by other indicia so unambiguous that we are left
without any doubt that Congress intended to create an individ-
ual, enforceable right remediable under § 1983.

B

Since Gonzaga, no federal court of appeals of which we are
aware has concluded that § 30(A) provides Medicaid recipi-
ents or providers with a right enforceable under § 1983.

Before Gonzaga, the Fifth and Eighth Circuits each held
that Medicaid recipients had such a private right of action. See
Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d
908, 927-28 (5th Cir. 2000); Ark. Med. Soc’y, Inc. v. Reynolds
6 F.3d 519, 528 (8th Cir. 1993); cf. Pa. Pharmacists Ass’n v.
Houstoun, 283 F.3d 531, 543-44 (3rd Cir. 2002) (en banc)
(positing, in dicta, a right for recipients while rejecting such
a right for providers); Visiting Nurse Ass’n v. Bullen, 93 F.3d
997, 1004 n.7 (1st Cir. 1996) (positing, in dicta, a right for
recipients while holding that such a right existed for provid-
ers). The First, Seventh and Eighth Circuits held that such a
right existed for Medicaid providers. See Visiting Nurse
Ass’n, 93 F.3d at 1005 (1st Cir. 1996); Methodist Hosps. v.
Sullivan, 91 F.3d 1026, 1029 (7th Cir. 1996); Ark. Med.
Soc’y, Inc., 6 F.3d at 528. By contrast, the Third and Fifth
Circuits explicitly held that § 30(A) did not create a right
enforceable by Medicaid providers. See Pa. Pharmacists
Ass’n, 283 F.3d at 543; Evergreen Presbyterian Ministries,
Inc., 235 F.3d at 929.

However, in light of Gonzaga, the First Circuit has since
reversed itself in a case involving only the rights of providers.
8902 SANCHEZ v. JOHNSON
See Long Term Care Pharm. Alliance v. Ferguson, 362 F.3d
50, 59 (1st Cir. 2004) (“If Gonzaga had existed prior to Bul-
len, the panel could not have come to the same result. . . . Pro-
viders such as pharmacies do not have a private right of action
under subsection (30)(A).”). With the First Circuit’s example
in mind, we turn to the language of § 30(A) to determine if
it unambiguously manifests Congressional intent to create
individual rights, whether for Medicaid recipients or provid-
ers, remediable under § 1983.

C

In contrast to the language of Title VI and Title IX, there
is nothing in the text of § 30(A) that unmistakably focuses on
recipients or providers as individuals. Moreover, the flexible,
administrative standards embodied in the statute do not reflect
a Congressional intent to provide a private remedy for their
violation.

1

[4] In Gonzaga, the Supreme Court instructed that, when a
“provision focuse[s] on ‘the aggregate services provided by
the State,’ rather than ‘the needs of any particular person,’ it
confer[s] no individual rights and thus [cannot] be enforced
by § 1983.” Id. at 282 (quoting Blessing, 520 U.S. at 340).
Like the statute under review in Gonzaga, § 30(A) also has an
aggregate focus, rather than an individual focus that would be
evidence of an intent to confer an individually enforceable
right. The statute speaks not of any individual’s right but of
the State’s obligation to develop “methods and procedures”
for providing services generally. Indeed, the only reference in
§ 30(A) to recipients of Medicaid services is in the aggregate,
as members of “the general population in the geographic
area.” A statutory provision that refers to the individual only
in the context of describing the necessity of developing state-
wide policies and procedures does not reflect a clear Congres-
sional intent to create a private right of action.
 SANCHEZ v. JOHNSON 8903
The text does at least refer explicitly to Medicaid providers,
but as a means to an administrative end rather than as individ-
ual beneficiaries of the statute. The State is directed to “pro-
vide methods and procedures . . . sufficient to enlist enough
providers so that care and services are available under the
plan at least to the extent that such care and services are avail-
able to the general population in the geographic area.” Under
§ 30(A), providers are to be “enlisted” as subordinate partners
in the administration of Medicaid services. They may cer-
tainly benefit from their relationship with the State, but they
are, at best, indirect beneficiaries and it would strain common
sense to read § 30(A) as creating a “right” enforceable by
them. See Gonzaga, 536 U.S. at 284 (“For a statute to create
such private rights, its text must be phrased in terms of the
persons benefitted.”).

2

Far from focusing on the rights of a specific class of benefi-
ciaries, § 30(A) is concerned with a number of competing
interests. It requires a State to “provide such methods and pro-
cedures relating to . . . care and services . . . as may be neces-
sary to . . . assure that payments are consistent with
efficiency, economy, and quality of care.” The most efficient
and economical system of providing care may be one that
benefits taxpayers to the detriment of medical providers and
recipients; likewise, the provision of “quality” care—
whatever standard may be implied by such a nebulous term—
is likely to conflict with the goals of efficiency and economy.
The tension between these statutory objectives supports the
conclusion that § 30(A) is concerned with overall methodol-
ogy rather than conferring individually enforceable rights on
individual Medicaid recipients.

In Gonzaga, Justice Breyer observed that the “broad and
nonspecific” language of FERPA indicated that “Congress
may well have wanted . . . to achieve the expertise, unifor-
mity, wide-spread consultation, and resulting administrative
8904 SANCHEZ v. JOHNSON
guidance that can accompany agency decisionmaking and to
avoid the comparative risk of inconsistent interpretations and
misincentives that can arise out of an occasional inappropriate
application of the statute in a private action for damages.” 536
U.S. at 292 (Breyer, J., concurring in the judgment). The lan-
guage of § 30(A) is similarly ill-suited to judicial remedy; the
interpretation and balancing of the statute’s indeterminate and
competing goals would involve making policy decisions for
which this court has little expertise and even less authority.

3

[5] The text and structure of § 30(A) simply do not focus
on an individual recipient’s or provider’s right to benefits, nor
is the “broad and diffuse” language of the statute amenable to
judicial remedy. We conclude, therefore, that Congress has
not spoken with an unambiguous, clear voice that would put
a State on notice that Medicaid recipients or providers are
able to compel state action under § 1983.

D

This conclusion follows our discussion of the impact of
Gonzaga in Price v. City of Stockton, 390 F.3d 1105 (9th Cir.
2004). In that case, former tenants of low-income hotels and
a nonprofit organization involved in assisting the homeless
sued the City of Stockton, alleging that the closing of residen-
tial hotels for health and safety reasons violated federal and
state laws, including the Housing and Community Develop-
ment Act. We were asked to decide whether the plaintiffs had
a private right of action to enforce the relevant provisions of
the act.

We began by observing that, after Gonzaga, “to create
enforceable rights [such as would satisfy the first prong of the
Blessing test] the language of the statute must focus on indi-
vidual entitlement to benefits rather than the aggregate or sys-
temwide policies and practices of a regulated entity.” Price,
 SANCHEZ v. JOHNSON 8905
390 F.3d at 1110. Applying this rule, we noted that “[f]irst
and foremost, Section 104(k) mandates that ‘each grantee
shall provide for reasonable benefits to any person involuntar-
ily and permanently displaced as a result of the use of assis-
tance received under this chapter to acquire or substantially
rehabilitate property.’ ” Id. (emphasis added). From this lan-
guage, we concluded that the section “is ‘phrased with an
unmistakable focus on the benefited class’ [and] does not
speak ‘only in terms of institutional policy and practice,’ . . .
but rather requires that benefits be provided to particular per-
sons displaced by federally funded redevelopment activities,”
and, therefore, it “evinces a clear intent to create a federal
right.” Id. at 1111 (quoting Gonzaga, 536 U.S. at 288) (cita-
tions omitted).

We also held that the “ ‘reasonable benefits’ to which dis-
placed persons unquestionably are entitled under Section
104(k),” were not “too vague for judicial enforcement.” Id.
Because related statutory provisions and regulations “enumer-
ate[d] the monetary benefits to which displaced persons of
low and moderate income are entitled, ‘including reimburse-
ment for actual and reasonable moving expenses, security
deposits, credit checks, and other moving-related expenses,
including any interim living costs,’ ” id. at 1112, we con-
cluded that the terms of the statute anticipated a clear,
enforceable remedy for violations of the rights enumerated in
the statute. Id. at 1112, 1114.

In contrast, we held that “other provisions of [the statute
under consideration] do not share Section 104(k)’s focus on
individual benefits,” id. at 1113, and, instead, “are directed to
governmental agencies . . . and are phrased in aggregate
terms, without reference to individual displaced persons.” Id.
(emphasis added, quotation marks omitted). We concluded
that, “[i]n consideration of this aggregate focus, we hold that
the requirements of [these other sections of the statute] do not
. . . create individual rights directly: . . . the lack of ‘rights-
creating’ language and the absence of any focus on individual
8906 SANCHEZ v. JOHNSON
entitlements, would prevent us from holding that [they] create
individual rights.” Id. at 1113-14 (quotation marks and cita-
tion omitted).

Because § 30(A) also lacks “rights-creating” language and
“any focus on individual entitlements,” and does not antici-
pate a judicially enforceable remedy, it shares the flaws that
Price identified as fatal to the sections of the Housing and
Community Development Act that we held to be unenforce-
able.

E

Our conclusion also accords with the First Circuit’s analy-
sis of the text of § 30(A) in Long Term Care. Although that
case was concerned only with Medicaid providers, its reason-
ing applies also to recipients. The First Circuit noted that
§ 30(A) “has . . . broad[ ] coverage, sets forth general objec-
tives, and mentions no category of entity or person specially
protected” and “has no ‘rights creating language’ and identi-
fies no discrete class of beneficiaries — two touchstones in
Gonzaga’s analysis and of those earlier cases on which Gon-
zaga chose to build.” Long Term Care, 362 F.3d at 56-57
(citations omitted). Instead, “[t]he provision focuses . . . upon
the state as the person regulated rather than individuals pro-
tected, suggesting no intent to confer rights on a particular
class of persons.” Id. (quotation marks and citation omitted).
The court concluded that, “[s]ubsection (30)(A) presents the
same concern” that Justice Breyer identified in Gonzaga,
namely that “much of the statute’s key [substantive] language
is broad and non-specific,” id. at 58 (quoting Gonzaga, 536
U.S. at 292 (Breyer, J., concurring in the judgment)) (alter-
ation in original), which suggests “that exclusive agency
enforcement might fit the scheme better than a plethora of pri-
vate actions threatening disparate outcomes.” Id.

We do not believe the Third Circuit case, Sabree v. Rich-
man, 367 F.3d 180 (3d Cir. 2004), which held that “it [is] dif-
 SANCHEZ v. JOHNSON 8907
ficult, if not impossible, as a linguistic matter, to distinguish
the import of the relevant Title XIX language—‘A State plan
must provide’—from the ‘No person shall’ language of Titles
VI and IX,” id. at 190, to be applicable to our analysis of
§ 30(A). Sabree involved two sections of the Medicaid Act
that are prefaced by language very different from that which
introduces § 30(A). Those provisions specifically focus on
entitlements available to “all eligible individuals” and “pro-
vide . . . for making medical assistance available . . . to all
individuals” rather than on the “methods and procedures” by
which a State can balance the often incompatible goals of “ef-
ficiency, economy, and quality of care” in the administration
of Medicaid services. Compare 42 U.S.C. §§ 1396a(a)(8) and
(a)(10) (emphases added) with 42 U.S.C. § 1396a(a)(30)(A).
The Third Circuit observed that the phrase “A State plan must
provide,” when read together with the individual focus of 42
U.S.C. §§ 1396a(a)(8) and (a)(10), has an overall direction
that is similar to the individually focused Title VI and IX lan-
guage approved by the Court in Gonzaga. Such language is
also notably absent from § 30(A).

Although 42 U.S.C. § 1396a(a) sets out a comprehensive
list of requirements that a state plan must meet, it does not
describe every requirement in the same language. Some
requirements, such as those addressed in Sabree, focus on
individual recipients, while others are concerned with the pro-
cedural administration of the Medicaid Act by the States and
only refer to recipients, if at all, in the aggregate. Section
30(A) is one of the latter provisions; it is directly concerned
with the State as administrator and only indirectly with recipi-
ents and providers as beneficiaries of the administered ser-
vices. Gonzaga made it clear that simply being the intended
beneficiary of a statute is not enough to demonstrate the inten-
tional creation of an enforceable right.

F

[6] After Gonzaga, there can be no doubt that, to satisfy the
Blessing test, a plaintiff seeking redress under § 1983 must
8908 SANCHEZ v. JOHNSON
assert the violation of an individually enforceable right con-
ferred specifically upon him, not merely a violation of federal
law or the denial of a benefit or interest, no matter how unam-
biguously conferred. The text and structure of § 30(A) do not
persuade us that Congress has, with a clear voice, intended to
create an individual right that either Medicaid recipients or
providers would be able to enforce under § 1983. Because we
hold that § 30(A) fails the first prong of the Blessing test, we
do not need to consider the second and third prongs.

III

Sanchez and the Providers also appeal the district court’s
order granting the state officials’ summary judgment motion
with respect to the ADA and § 504 claims. They allege that
California has failed to pursue HCBS waiver reimbursements
under Medicaid aggressively, which, they further allege,
could be used to set payment rates to community-based ser-
vice providers at a level high enough to provide community-
based care for all developmentally disabled persons who
desire it. They request an injunction compelling the state offi-
cials to increase payments to community-based service pro-
viders to prevent what they characterize as the continuing,
unnecessary segregation of developmentally disabled persons
in institutions.

A

[7] Both the ADA and § 504 prohibit discrimination on the
basis of disability in the administration of a public program
receiving Federal funding. Because of the nearly identical lan-
guage of 42 U.S.C. § 12132 and § 504 of the Rehabilitation
Act,6 and because the Sanchez appellants are “qualified
6
42 U.S.C. § 12132 (§ 202 of the ADA) provides, in part, that:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the ben-
 SANCHEZ v. JOHNSON 8909
individual[s] with a disability” within the meaning of both
statutes, for the purposes of this case we construe the two pro-
visions as co-extensive. Cf. Barnes v. Gorman, 536 U.S. 181,
184-85 (2002); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th
Cir. 2002); Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir.
1995).

[8] Regulations enacted pursuant to the ADA and § 504
both express a clear policy preference in favor of integrating
developmentally disabled persons into the community over
institutional care: one § 504 regulation requires programs that
receive federal funding to “administer programs and activities
in the most integrated setting appropriate to the needs of qual-
ified handicapped persons,” 28 C.F.R. § 41.51(d) (2005); and
one of the ADA’s Title II regulations requires a public entity
to “administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified indi-
viduals with disabilities.” 28 C.F.R. § 35.130(d) (2005).
Again, for the purposes of this appeal, we interpret these pro-
visions as co-extensive.

B

In granting the state officials’ motion for summary judg-
ment on Sanchez’s and the Providers’ ADA and § 504 claims,
the district court held that, drawing all reasonable inferences
in favor of Sanchez and the Providers, they had failed to

efits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.
29 U.S.C. § 794(a) (§ 504 of the Rehabilitation Act) provides, in part,
that:
No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .
8910 SANCHEZ v. JOHNSON
establish any material factual dispute with respect to three key
issues, all of which were necessary elements of a prima facie
case for discrimination.

First, the court held that “[e]ven if unjustified institutional-
ization is occurring, [Sanchez and the Providers] have failed
to show that an increase in wages and benefits for
community-based direct care workers would remedy the
alleged violation.” Second, the court held that the relief pro-
posed by Sanchez and the Providers is not a “reasonable mod-
ification” of California’s current policies and practices
because the $1.4 billion of extra expenditure they request
would represent a forty percent increase in the State’s budget
for developmentally disabled services. Third, the court held
that California already has in place an acceptable plan for
deinstitutionalization, the disruption of which would involve
a fundamental alteration of the State’s current policies and
practices in contravention of the Supreme Court’s instructions
in Olmstead. If we uphold any one of these conclusions, then
the state officials must prevail.

1

[9] In Olmstead, the Supreme Court interpreted Title II of
the ADA as forbidding the arbitrary segregation of the dis-
abled in large state institutions. “Unjustified isolation,” the
Court held, “is properly regarded as discrimination based on
disability.” 527 U.S. at 597. However, the Court “recog-
nize[d], as well, the States’ need to maintain a range of facili-
ties for the care and treatment of persons with divers mental
disabilities, and the States’ obligation to administer services
with an even hand.” Id. Justice Ginsburg, writing for a plural-
ity of the Court, elaborated on this balancing of integration
with competing policy and fiscal considerations, emphasizing
that “[t]he State’s responsibility, once it provides community-
based treatment to qualified persons with disabilities, is not
boundless.” Id. at 603. A State is only required to modify its
current practices if the modifications necessary to satisfy the
 SANCHEZ v. JOHNSON 8911
request for increased deinstitutionalization are reasonable and
do not fundamentally alter the nature of the State’s services
or program. Id.; 28 C.F.R. § 35.130(b)(7) (2005) (“A public
entity shall make reasonable modifications in policies, prac-
tices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the pub-
lic entity can demonstrate that making the modifications
would fundamentally alter the nature of the service, program,
or activity.”).

[10] One state defense under the ADA, which was explic-
itly approved by the Court,7 is the existence of a state plan for
deinstitutionalization (an “Olmstead Plan”). The Court held
that,

[i]f . . . the State were to demonstrate that it had a
comprehensive, effectively working plan for placing
qualified persons with mental disabilities in less
restrictive settings, and a waiting list that moved at
a reasonable pace not controlled by the State’s
endeavors to keep its institutions fully populated, the
reasonable-modifications standard would be met.

Id. at 605-06.

The district court concluded that California is currently
operating an acceptable deinstitutionalization plan, which,
under Olmstead, should not be set aside or modified by the
courts.
7
We have held that, while “[t]he section of Justice Ginsburg’s opinion
discussing the state’s fundamental alteration defense commanded only
four votes . . . [b]ecause it relied on narrower grounds than did Justice Ste-
vens’ concurrence or Justice Kennedy’s concurrence, both of which
reached the same result, Justice Ginsburg’s opinion controls.” Townsend
v. Quasim, 328 F.3d 511, 519 n.3 (9th Cir. 2003).
8912 SANCHEZ v. JOHNSON
a

Under California law, all persons with developmental dis-
abilities are entitled to free health care services. The Lanter-
man Developmental Disabilities Services Act, Cal. Welf. &
Inst. Code, §§ 4500-4846, (the “Lanterman Act”) requires the
State to provide “[a]n array of services and supports . . .
which is sufficiently complete to meet the needs and choices
of each person with developmental disabilities, regardless of
age or degree of disability, and at each stage of life and to
support their integration into the mainstream life of the com-
munity.” Id. § 4501. As described by the California Supreme
Court,

[t]he purpose of the statutory scheme is twofold: to
prevent or minimize the institutionalization of
developmentally disabled persons and their disloca-
tion from family and community, and to enable them
to approximate the pattern of everyday living of non-
disabled persons of the same age and to lead more
independent and productive lives in the community.

Ass’n for Retarded Citizens v. Dep’t of Developmental Servs.,
696 P.2d 150, 152 (Cal. 1985) (“ARC”)(citations omitted).
The Lanterman Act gives DDS “jurisdiction over the execu-
tion of the laws relating to the care, custody, and treatment of
developmentally disabled persons,” Cal. Welf. & Inst. Code
§ 4416, but DDS’s role “is basically limited to promoting the
cost-effectiveness of the operations of [21 Regional Centers],
and does not extend to the control of the manner in which
they provide services or in general operate their programs.”
ARC, 696 P.2d at 152. The Lanterman Act also established 21
Regional Centers, independent, private non-profit community
agencies under contract with the DDS, which coordinate ser-
vices to “provide each developmentally disabled person with
services that enable him to live . . . in the community.” Id.

Through the Regional Centers, California provides care ser-
vices for more than 180,000 developmentally disabled per-
 SANCHEZ v. JOHNSON 8913
sons. Of these, approximately 3,800 live in one of seven large,
congregate institutions called Developmental Centers, which
are located throughout the State and are operated by DDS.
Although they are operated by DDS, it is the Regional Cen-
ters that determine if a consumer needs to be institutionalized
in a Developmental Center and for how long. Regional Cen-
ters are required to develop an Individual Program Plan for
each consumer. Once an individual plan is prepared, the
responsible Regional Center must review it annually and
modify it as necessary. An individual plan must include an
assessment of the consumer’s capabilities and limitations, a
statement of time-limited objectives for improving his situa-
tion, a schedule of the type and amount of services necessary
to achieve these objectives, and a schedule of periodic review
to ensure that the services have been provided and the objec-
tives met.

The ninety-eight percent of developmentally disabled per-
sons who receive care in the community do so either at Inter-
mediate Care Facilities, which are licensed to provide 24-hour
nursing care and are scattered throughout the State; Commu-
nity Care Facilities, which provide 24-hour, non-medical,
community-based residential care for developmentally dis-
abled persons in need of personal services, and supervision or
assistance essential for self-protection; or through a variety of
non-residential day programs and residential support services
for developmentally disabled persons who live at home or in
the community. It is the Regional Centers that select and con-
tract with these community based service providers, which
include Family Home Agencies, Foster Family Agencies,
Independent Living Programs, Supported Living Services,
and other support programs, such as vocational training, trans-
portation, health care, respite services, community integration
training, community activities support, adaptive skills train-
ing, behavior management, tutors, special education, recre-
ation therapy, counseling, infant development, and speech
pathology.
8914 SANCHEZ v. JOHNSON
Care of developmentally disabled persons in these
community-based programs may be eligible for Medicaid
reimbursement pursuant to the HCBS waiver program. How-
ever, in order to qualify for Medicaid reimbursement, the
recipient must be a low income person and the services must
also be provided at a lower cost than if they were provided in
a state institution. For qualifying recipients using qualifying
services, Medicaid provides matching funds equal to approxi-
mately half of the cost of those services.8

The number of places in the HCBS waiver program is
capped and a State must apply for any increases of the cap
from the U.S. Department of Health and Human Services.
Because of this, States often apply for, and receive, pre-
approval for more places than they currently need. In 2002,
California had more than 45,000 waiver places approved and
received matching funds for approximately 35,000 registered
persons. That cap has been approved to increase to approxi-
mately 70,000 by October, 2005. Because Sanchez and the
Providers have only identified, at most, 1,125 allegedly unjus-
tifiably institutionalized persons, there would be no reason for
California to increase the number of places in its HCBS
waiver program at this time and Sanchez and the Providers do
not explicitly request such an increase.

b

In the 1980s, the DDS and the Regional Centers developed
a program of Regional Resource Development Projects to
enable the placement of more Developmental Center residents
8
Under the Lanterman Act, all developmentally disabled persons are
entitled to services funded out of the State’s general funds. However, only
seventy percent of these developmentally disabled persons qualify for
Medicaid funding on the basis of financial need. In addition, many of the
developmentally disabled persons eligible for services under the Lanter-
man Act do not have a level of impairment which would qualify them for
matching funds from the federal government under California’s HCBS
waiver program.
 SANCHEZ v. JOHNSON 8915
in the community. The regional development projects assist
the Regional Centers in identifying the services that Develop-
mental Center residents need to live in the community. The
regional development projects maintain a database that indi-
cates whether a Developmental Center resident is recom-
mended by his individual plan (either in the short-term or as
a longer-term goal) to live in the community.

The DDS also utilizes a system of Community Placement
Plans (“CPPs”) to move Developmental Center residents to
community residential settings. Community Placement Plans
are individualized and reflect a partnership between the
Regional Center, each individual and his family, the Develop-
mental Center, and the Regional Resource Development Proj-
ect. Because many recipients require specialized services that
may be difficult to locate in some areas of California, part of
a Community Placement Plan often involves the Regional
Center enhancing and developing the local resources needed
to move the consumer from a Developmental Center into the
community.

Despite the comprehensive and accommodating nature of
California’s deinstitutionalization practices, barriers to indi-
vidual community placement remain. One common barrier is
the opposition of an individual’s family to community place-
ment. Although a family cannot veto a decision by the
Regional Center to place a family member in the community,
family involvement is often crucial in making a successful
placement. Many current Developmental Center residents also
exhibit complex and difficult behaviors, including self-
injurious or aggressive behavior, that make community place-
ment difficult, and many have serious and life-threatening
medical conditions requiring 24-hour nursing care. Therefore,
for the developmentally disabled that still reside in Develop-
mental Centers, placement in the community can be a very
challenging process.

Despite these obstacles, California successfully reduced the
percentage of developmentally disabled persons residing in
8916 SANCHEZ v. JOHNSON
Developmental Centers from six percent of the developmen-
tally disabled population to two percent over the last decade.
This success is due in part to the fact that the State’s spending
on community-based care increased significantly over that
same period. The 2002/2003 CPP program allocated funding
as high as $286,000 for the first year that a developmentally
disabled person moves into the community. After the first
year, the budget provided for an average of $102,000 per per-
son to maintain the community placement. That budget repre-
sented an increase in total CPP funding of over sixty percent.
Finally, and most significantly, § 4669.2 of the Lanterman
Act authorizes DDS to bypass other restrictions to fund pro-
posals for special projects. This means that DDS is authorized
to fund certain services, such as those provided under the lat-
est iteration of the CPP program, outside the existing rate
structure. DDS has used this authority to fund services that
encourage deinstitutionalization at much higher rates than in
the recent past.

Sanchez and the Providers argue that, although California
has achieved significant success moving institutionalized per-
sons into the community, in recent years the rate of commu-
nity placement has slowed. Sanchez and the Providers have
shown that for the three years prior to the district court’s deci-
sion, the number of admissions to Developmental Centers was
actually greater than the number of discharges, although the
overall residential population declined, in part due to the natu-
ral deaths of residents. However, the record supports the dis-
trict court’s finding that this recent decline in the rate of
community placements has been due to the fact that those per-
sons with the least severe disabilities or with the best pros-
pects for integration into the community were
deinstitutionalized first. Those who remain in Developmental
Centers have, on average, more, and more severe, disabilities
and face higher barriers to deinstitutionalization, including
family or personal opposition. The 2% of developmentally
disabled persons who still reside in Developmental Centers
are more than four times more likely to have serious medical
 SANCHEZ v. JOHNSON 8917
problems, more than six times more likely to have severe
behavior problems, and 69% of current residents are among
the top 10% of all persons with the most acute levels of retar-
dation. In addition, since 1998, the number of persons admit-
ted to Developmental Centers pursuant to court orders finding
them incompetent to stand trial (so called “forensic” admit-
tances) has increased dramatically.9

2

The district court concluded that California’s commitment
to the deinstitutionalization of those Developmental Center
residents for whom community integration is desirable,
achievable and unopposed, is genuine, comprehensive and
reasonable. This conclusion was based on evidence from the
record, which showed that “[o]verall, California’s expendi-
tures for individuals in community settings increased 196%
[between 1991 and 2001], while caseload . . . increased fifty-
five percent in the same period,” that California has applied
for increased places under the HCBS waiver program, and
that, “[between 1996 and 2000], California reduced its institu-
tion population by twenty percent.” DDS has also budgeted to
develop 42 new Community Care Facilities and ten new Inter-
mediate Care Facilities, and anticipates a reduction in institu-
tionalization that would allow it to close at least one
Developmental Center by 2007. We are satisfied, therefore,
that the district court’s conclusion that California’s “plan is
comprehensive, effective, and moving at a reasonable pace,”
is supported by the record.

3

In Olmstead, the Court recognized that a State must have
sufficient leeway “[t]o maintain a range of facilities and to
9
The district court noted that, “[o]f the 436 people admitted into Devel-
opmental Centers since January, 1999, almost forty percent were commit-
ted by a court.”
8918 SANCHEZ v. JOHNSON
administer services with an even hand,” 527 U.S. at 605, and
that courts should be sympathetic to fundamental alteration
defenses against proposed modifications to state services and
programs for care of the disabled.10 Id.; see also Townsend,
328 F.3d at 520.

[11] Concomitant with this leeway is a recognition that,
when there is evidence that a State has in place a comprehen-
sive deinstitutionalization scheme, which, in light of existing
budgetary constraints and the competing demands of other
services that the State provides, including the maintenance of
institutional care facilities, see Olmstead, 527 U.S. at 597, is
“effectively working,” id. at 605, the courts will not tinker
with that scheme. Olmstead does not require the immediate,
state-wide deinstutionalization of all eligible developmentally
disabled persons, nor that a State’s plan be always and in all
cases successful. Id. at 606 (“It is reasonable for the State to
ask someone to wait until a community placement is avail-
able.”) (endorsing position of State of Georgia). The record
supports the district court’s finding that California has a suc-
cessful record of personalized evaluations leading to a reason-
able rate of deinstutionalization and, moreover, that California
has undertaken to continue and to increase its efforts to place
current residents of Developmental Centers into the commu-
10
Olmstead also specifically disapproved two methods of analyzing
whether a requested modification is financially reasonable, or whether it
amounts to a “fundamental alteration” of a State’s services. First, it held
that measuring the cost of placing one or two disabled people in the com-
munity against the entirety of the State’s budget for treatment of that dis-
ability is inappropriate because the requested relief will almost always
appear to be a reasonable modification. 527 U.S. at 603-604. Second, the
Court held that it was not appropriate merely to compare the cost of insti-
tutionalization against the cost of community-based services, because that
comparison would not account for the State’s financial obligation to con-
tinue to operate partially full institutions with fixed overhead costs. Id. at
604 n.15. Even if a community-based placement would be less costly than
an institutional placement for a specific individual, the State must still fac-
tor into its overall budget the fixed cost of maintaining some necessary
number of state institutions.
 SANCHEZ v. JOHNSON 8919
nity when such placement is feasible. Sanchez’s and the Pro-
viders’ requested relief would require us to disrupt this
working plan and to restrict impermissibly the leeway that
California is permitted in its operation of developmentally
disabled services under Olmstead.

IV

Congress did not unambiguously create an individually
enforceable right in § 30(A) that would be remediable under
§ 1983 either by recipients or providers of Medicaid services.
Furthermore, Sanchez’s and the Providers’ requested relief
under Title II of the ADA and § 504 of the Rehabilitation Act
would require the “fundamental alteration” of a comprehen-
sive, working plan for deinstitutionalization in contravention
of Olmstead.

AFFIRMED.