FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALOHACARE,
Plaintiff-Appellant,
No. 08-16589
v.
D.C. No.
STATE OF HAWAII, DEPARTMENT OF 1:08-cv-00212-
HUMAN SERVICES; LILLIAN B. SOM-BMK
KOLLER, Director, State of Hawaii,
OPINION
Department of Human Services,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Argued and Submitted
May 15, 2009—Honolulu, Hawaii
Filed July 14, 2009
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Bybee
8805
8808 ALOHACARE v. STATE OF HAWAII
COUNSEL
James L. Feldesman (argued), Feldesman Tucker Leifer Fidell
LLP, Washington, D.C.; Edward C. Kemper, Kemper &
Watts, Honolulu, Hawaii, for the plaintiff-appellant.
John F. Molay, Deputy Attorney General, Department of the
Attorney General, Honolulu, Hawaii; Charles A. Miller
(argued), Covington & Burling, LLP, Washington, D.C., for
the defendants-appellees.
OPINION
BYBEE, Circuit Judge:
AlohaCare submitted a proposal to provide managed health
care to Medicaid-eligible aged, blind, and disabled individu-
als. When the Hawaii Department of Human Services
awarded the contract to two other health plans, AlohaCare
brought suit under 42 U.S.C. § 1983, alleging that the state
had violated the Medicaid Act. We must decide whether 42
U.S.C. § 1396b(m) confers a federal right to contract eligibil-
ity on AlohaCare that can be remedied under § 1983. For the
reasons discussed below, we conclude that it does not and
thus affirm the judgment of the district court.
I
A
Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et
seq., (the “Act” or “Medicaid Act”), provides federal funding
to “enabl[e] each State, as far as practicable . . . to furnish . . .
medical assistance on behalf of families with dependent chil-
dren and of aged, blind, or disabled individuals, whose
income and resources are insufficient to meet the costs of nec-
ALOHACARE v. STATE OF HAWAII 8809
essary medical services.” 42 U.S.C. § 1396-1. Medicaid is a
jointly financed federal-state program that is administered by
the States in accordance with federal guidelines. See Chil-
dren’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1093
(9th Cir. 1999). Medicaid is overseen at the federal level by
the Department of Health and Human Services (“HHS”)
through HHS’s Centers for Medicare and Medicaid Services
(“CMS”). See Robert F. Kennedy Med. Ctr. v. Leavitt, 526
F.3d 557, 558 (9th Cir. 2008).
The Act, among other things, outlines detailed require-
ments for plan eligibility, id. § 1396a, erects a complex
scheme for allocating and receiving federal funds, id.
§ 1396b, and imposes detailed requirements on States that
wish to delegate the provision of health care services through
contracts with managed care organizations (“MCOs”), id.
§ 1396u-2. Hawaii’s compliance with these federal laws is the
subject of the current dispute.
B
Hawaii has established the Department of Human Services
(“DHS”) as the “single State agency” responsible for adminis-
tering and supervising Hawaii’s Medicaid program. See HAW.
REV. STAT. § 26-14; 42 U.S.C. § 1396a(a)(5). Medicaid gener-
ally requires a State to conform with federal guidelines prior
to receiving federal funds; however, under 42 U.S.C. § 1315,
CMS may waive compliance for certain “experimental, pilot,
or demonstration project[s].” Id. § 1315(a). Pursuant to
§ 1315, in 1993 Hawaii obtained approval from CMS to oper-
ate a managed care model known as QUEST. QUEST is a
statewide demonstration project that allows Hawaii to con-
tract with health-maintenance organizations (“HMOs”) and
provide health care coverage to populations outside the nor-
mal reach of Medicaid.
In 1993, a group of Hawaii’s federally qualified health care
organizations (“FQHCs”) formed AlohaCare, a non-profit
8810 ALOHACARE v. STATE OF HAWAII
organization whose central purpose is to provide and arrange
for health care services for Medicaid-eligible individuals in
Hawaii. AlohaCare obtained approval to participate as an
HMO under the QUEST program. At the time of this suit,
AlohaCare was the second largest QUEST health plan in
Hawaii and the third largest health plan in the state overall.
FQHCs are organizations, funded by the federal govern-
ment under 42 U.S.C. § 254b, that provide medical health ser-
vices to “medically underserved” populations. 42 U.S.C.
§ 254b(a)(1); see also id. § 1396d(l)(2)(A)-(B); id.
§ 1395x(aa)(3)(B). The Medicaid Act has a number of provi-
sions that place FQHCs on more favorable footing than other
health care organizations. For example, because a number of
requirements usually applicable to MCOs do not apply to
FQHCs, FQHCs can often become eligible for managed care
contracts more easily than other health care organizations. See
id. § 1396b(m)(1)(C)(ii)(IV), (2)(B)(i)(I), (2)(G).
C
In January 2005, DHS sought to implement a revised ver-
sion of QUEST, called QUEST Expanded Access (“QEXA”).
The purpose of this program was to build on the existing
QUEST program and offer managed care services to
Medicaid-eligible aged, blind, and disabled individuals. As
with the original QUEST program, DHS had to obtain a
waiver for QEXA from CMS under 42 U.S.C. § 1315 as an
experimental demonstration project. DHS submitted its appli-
cation in January 2005, and CMS approved the waiver in Feb-
ruary 2008.
In 2007, DHS issued a request for proposals (“RFP”) for
qualified health care plans to provide managed care under
QEXA, and AlohaCare submitted a proposal in response.
After conducting an internal review, DHS concluded that Alo-
haCare did not meet the RFP’s technical requirements and
thus did not consider AlohaCare as a viable candidate for the
ALOHACARE v. STATE OF HAWAII 8811
QEXA program. Ultimately, DHS awarded contracts to two
other health plans: Ohana Health Plan and Evercare. Aloha-
Care filed a protest, arguing that its proposal was not properly
evaluated. This protest was denied by Lillian Koller, the
Director of DHS, and AlohaCare filed a request for reconsid-
eration with the State Procurement Office.
In 2008, before Hawaii had responded to the request for
reconsideration, AlohaCare filed a complaint in federal dis-
trict court against DHS and Koller (collectively “the Defen-
dants”) pursuant to 42 U.S.C. § 1983. AlohaCare alleged that
the Defendants violated at least five provisions of the Medic-
aid Act: (1) 42 U.S.C. § 1396b(m) (by awarding contracts in
violation of the statute’s requirements for MCOs and by find-
ing AlohaCare ineligible for the contract); (2) § 1396u-2(b)(5)
(by awarding a contract to an MCO without obtaining ade-
quate assurances that the MCO’s network of providers has
sufficient capacity to serve the relevant population); (3)
§ 1396b(i)(17) (by providing rebates to the winning bidders);
(4) § 1396u-2(a)(2)(A) (by imposing managed care on the
population under the age of nineteen); and (5) § 1396u-
2(a)(1)(A) (by restricting the number of entities eligible for
managed care contracts).1 The complaint sought a declaration
that the awards made to the selected contractors were null and
void, an injunction prohibiting the Defendants from proceed-
ing with the awarded contracts, an order to force DHS to con-
form its contract requirements to federal law, and an order to
force DHS to consider AlohaCare as an eligible applicant in
any future procurements.
Shortly after AlohaCare filed suit, Aaron Fujioka, the
1
AlohaCare’s complaint also included claims for violations of due pro-
cess, breach of the implied duty of good faith and fair dealing, and retalia-
tion for the exercise of First Amendment rights. The district court
dismissed the first two of these claims, and AlohaCare does not challenge
those rulings on appeal. AlohaCare withdrew its retaliation claim at a
hearing before the district court.
8812 ALOHACARE v. STATE OF HAWAII
state’s Chief Procurement Officer, denied AlohaCare’s
request for reconsideration, concluding that there was no evi-
dence that AlohaCare’s proposal was improperly evaluated.
Defendants filed a motion to dismiss AlohaCare’s suit for
failure to state a claim, which the district court granted. Based
on the three-pronged analysis in Blessing v. Freestone, 520
U.S. 329 (1997), the district court found that AlohaCare could
not bring claims for violations of the Medicaid Act under
§ 1983. The court also found that AlohaCare did not have
third-party standing to bring these claims on behalf of the
aged, disabled, and blind population in Hawaii or Aloha-
Care’s member FQHCs. AlohaCare filed a timely appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291.2
II
On appeal, AlohaCare argues that the district court erred by
(1) failing to analyze its claims under the Supremacy Clause,
(2) concluding that AlohaCare could not bring claims pursu-
ant to § 1983 for violations of the Medicaid Act, and (3) fail-
ing to conclude that AlohaCare has associational standing to
bring claims on behalf of its member FQHCs. We address
each of these claims in turn.
A
“Absent exceptional circumstances, we generally will not
consider arguments raised for the first time on appeal,
although we have discretion to do so.” El Paso City of Tex.
v. Am. W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d
1161, 1165 (9th Cir. 2000). We may exercise this discretion
“(1) to prevent a miscarriage of justice; (2) when a change in
law raises a new issue while an appeal is pending; and (3)
2
We review de novo a dismissal under rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Kingman Reef Atoll Invs., L.L.C. v.
United States, 541 F.3d 1189, 1195 (9th Cir. 2008); Williams v. Gerber
Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008).
ALOHACARE v. STATE OF HAWAII 8813
when the issue is purely one of law.” Kimes v. Stone, 84 F.3d
1121, 1126 (9th Cir. 1996) (internal quotation marks omitted).
However, we will not “reframe [an] appeal to review what
would be (in effect) a different case than the one the district
court decided below.” Robb v. Bethel Sch. Dist. No. 403, 308
F.3d 1047, 1052 n.4 (9th Cir. 2002).
[1] AlohaCare’s claims under the Supremacy Clause have
not been preserved for appeal because they were never raised
below. There is an important distinction between a claim
brought under the Supremacy Clause and a claim brought
under § 1983: the latter “require[s] a plaintiff to show the
deprivation of ‘an unambiguously conferred right’ in order to
support a cause of action,” while the former “is presumptively
available to remedy a state’s ongoing violation of federal
law.” Ind. Living Ctr. of S. Cal. v. Shewry, 543 F.3d 1050,
1062, 1064 (9th Cir. 2008).
[2] AlohaCare’s complaint specifically states that its claims
were brought “pursuant to 42 U.S.C. § 1983.” AlohaCare
never raised an argument under the Supremacy Clause before
the district court, and consistently pressed its arguments under
the framework of § 1983 cases. We refuse to reverse the dis-
trict court for failing to foresee what AlohaCare would argue
on appeal.
B
AlohaCare also argues that the district court erroneously
dismissed its § 1983 claims. Specifically, AlohaCare asserts
that the provisions of 42 U.S.C. § 1396b(m) confer an unam-
biguous federal right to contract eligibility on FQHCs and
FQHC-controlled entities.3 We disagree.
3
In the district court AlohaCare argued that DHS violated a number pro-
visions of the Medicaid Act, including 42 U.S.C. §§ 1396b(m)(1),
(m)(2)(B), (m)(2)(G), (i)(17), 1396u-2(a)(1)(A)(ii), (a)(2)(A), (b)(5).
However, on appeal AlohaCare has only argued that the provisions of
§ 1396b(m) give rise to a federal right. We only address the provisions
that AlohaCare has presented on appeal.
8814 ALOHACARE v. STATE OF HAWAII
1
[3] In Maine v. Thiboutot, 448 U.S. 1, 4-5 (1980), the
Supreme Court held that § 1983 actions may be brought
against States to enforce rights created by federal statute as
well as the Constitution. However, “the remedy announced in
Thiboutot [is] to be applied sparingly and only to statutes in
which Congress speaks with a clear voice and unambiguously
creates a right secured by the laws of the United States.” San-
chez v. Johnson, 416 F.3d 1051, 1056 (9th Cir. 2005) (internal
quotation marks and alterations omitted).
In Blessing, the Supreme Court established a three-pronged
test for determining whether a federal statutory provision
creates a federal right: (1) “Congress must have intended that
the provision in question benefit the plaintiff,” (2) “the plain-
tiff must demonstrate that the right assertedly protected by the
statute is not so ‘vague and amorphous’ that its enforcement
would strain judicial competence,” and (3) “the statute must
unambiguously impose a binding obligation on the States.”
520 U.S. at 340-41 (internal citations omitted).
[4] Following Blessing, the Court “reject[ed] the notion that
[its] cases permit anything short of an unambiguously con-
ferred right to support a cause of action brought under
§ 1983.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
The Court made it plain that it was not sufficient for § 1983
to assert “interests” or “benefits” under a statute; it is only
“rights . . . that may be enforced under the authority of that
section.” Id. To create a federal right, a statute’s “text must be
phrased in terms of the persons benefited . . . with an unmis-
takable focus on the benefited class.” Id. at 284 (internal quo-
tation marks omitted). Thus, statutes that have an “aggregate
focus,” and “are not concerned with whether the needs of any
particular person have been satisfied,” do not give rise to indi-
vidual rights. Id. at 288 (internal quotations omitted).
In Gonzaga, the Supreme Court cited Title VI of the Civil
Rights Act of 1964 and Title IX of the Education Amend-
ALOHACARE v. STATE OF HAWAII 8815
ments of 1972 as examples of this rights-creating language.
Id. at 287. Title VI states that “No person in the United States
shall . . . be subjected to discrimination,” 42 U.S.C. § 2000d,
while Title IX states 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 looking for those precise phrases, statutory lan-
guage 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 individual, enforceable right remediable under
§ 1983.” Sanchez, 416 F.3d at 1058.
2
[5] In contrast to the language of Title VI and Title IX,
nothing in 42 U.S.C. § 1396b(m) clearly and unambiguously
confers a federal right to contract eligibility for FQHCs and
FQHC-controlled entities. “[T]he provisions entirely lack the
sort of ‘rights-creating’ language critical to showing the requi-
site congressional intent to create new rights.” Gonzaga, 536
U.S. at 287.
[6] Section 1396b(m) contains two paragraphs. Paragraph
(1) simply defines what “[t]he term ‘medicaid managed care
organization’ means”; it does not focus on the rights of
FQHCs other than to point out that for FQHCs and three other
types of organizations § 1396b(m)(1)(C)(i) “shall not apply.”
42 U.S.C. § 1396b(m)(1)(A), (C)(ii). This is hardly the “un-
mistakable focus on the benefited class” that clearly indicates
Congressional intent to confer a federal right. Gonzaga, 536
U.S. at 284.
[7] Similarly, Paragraph (2) prescribes at great length the
conditions under which the States will receive reimbursement
for Medicaid expenditures. It does not address the rights of
FQHCs or create an unambiguous entitlement to contract eli-
gibility. The language of this paragraph is focused on the pro-
8816 ALOHACARE v. STATE OF HAWAII
cedural requirements of the Medicaid Act and is squarely
“directed to governmental agencies” and “phrased in aggre-
gate terms.” Price v. City of Stockton, 390 F.3d 1105, 1113
(9th Cir. 2004) (internal quotation marks omitted). This falls
well short of the “specific articulation of the entitlements
guaranteed [by the statute]” that our precedent requires. Ball
v. Rodgers, 492 F.3d 1094, 1109 (9th Cir. 2007) (emphasis
added).
[8] In other words, we find that the plaintiffs here are “sim-
ply cogs in a grander statutory scheme.” Id. Although FQHC-
operated entities may benefit from the programs authorized
under § 1396b(m), that section does not create any rights in
FQHCs or FQHC-controlled entities such as AlohaCare that
may be enforced under § 1983. As in Gonzaga, “[s]ince the
Act confer[s] no specific, individually enforceable rights,
there [is] no basis for private enforcement.” 536 U.S. at 281.
3
[9] AlohaCare also argues that HHS’s regulations enforcing
§ 1396b(m) demonstrate that Congress intended to confer a
right of eligibility on FQHCs. However, we have held that
“[p]laintiffs suing under § 1983 must demonstrate that a stat-
ute—not a regulation—confers an individual right.” Save Our
Valley v. Sound Transit, 335 F.3d 932, 943 (9th Cir. 2003).
Although “a regulation may be relevant in determining the
scope of the right conferred by Congress,” ultimately “the
inquiry must focus squarely on Congress’s intent.” Id.
(emphasis added). Because we have already concluded that
Congress did not intend to confer a federal right, “[i]n this
case, our analysis begins and ends with Congress’s intent.” Id.
at 944.
C
[10] AlohaCare also argues, for the first time on appeal,
that it has associational standing to assert the rights of its
ALOHACARE v. STATE OF HAWAII 8817
FQHC members. An entity has associational standing where
“(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are ger-
mane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Or. Advocacy Ctr. v.
Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (quoting Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343
(1977)). Because we have concluded that the Medicaid Act
does not confer an unambiguous federal right to contract eli-
gibility on FQHCs, AlohaCare’s appeal fails under the first
prong of our analysis. Because its FQHC members could not
sue in their own right, AlohaCare cannot bring claims on their
behalf.
III
We hold that 42 U.S.C. § 1396b(m) does not confer a fed-
eral right to contract eligibility on FQHCs, and AlohaCare has
forfeited any arguments under the Supremacy Clause.
The judgment of the district court is AFFIRMED.