K. Et al. V. NH Dept. Of HHS

2011 DNH 157

• Court: District Court, D. New Hampshire
• Decided: September 30, 2011
• Docket: CV-09-94-JL
• Status: Published

Opinion

K. Et al. V. NH Dept. Of HHS CV-09-94-JL 9/30/11 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

BK and SK

v. Civil No. 09-CV-94-JL Opinion No. 2011 DNH 157 New Hampshire Department of Health and Human Services et a l .

MEMORANDUM ORDER

This action presents the question of whether private

citizens can enforce certain requirements that federal law

imposes on the states as a condition of fundinq for foster care

and adoption services. The plaintiffs claim that, in violation

of these requirements, the New Hampshire Department of Health and

Human Services (and other defendants) removed the plaintiffs'

minor children from their home, placed them in different foster

homes from each other, and failed to place them with foster

families "who respected and followed [the childrens'] reliqious,

ethnic or cultural backqround."

The plaintiffs, proceedinq pseudonymously as BK (the

childrens' father) and SK (the childrens' mother), and actinq on

behalf of themselves and their children, are practicinq Hindi.

Nevertheless, they alleqe that their children were placed with

foster families who served them beef and took them to Christian

reliqious services, in contravention of the plaintiffs' reliqious beliefs. They claim that this violated federal law requiring, as

a condition of federal funding for state child welfare plans, a

state's "diligent recruitment of potential foster and adoptive

families that reflect the ethnic and racial diversity of children

in the State for whom foster and adoptive homes are needed." 42

U.S.C. § 622(b) (7). The plaintiffs also claim that the foster

care placements violated their free exercise rights under the

First Amendment to the Constitution. They further claim that,

through the foster placements, the defendants violated other

statutory requirements for "reasonable efforts" as a condition of

federal funding for state foster programs, including "to preserve

and reunify families," id. § 671(a)(15)(B), and "to place

siblings removed from their home in the same foster care," id.

§ 671(a)(31)(A). Finally, the plaintiffs claim that the

defendants negligently inflicted emotional distress on SK.

The defendants, who include the New Hampshire Department of

Health and Human Services, its Division for Children, Youth and

Families, one of its district offices, and a number of their

employees, have moved to dismiss the plaintiffs' complaint for

failure to state a claim.1 See Fed. R. Civ. P. 12(b) (6). The

1After the defendants filed their motion to dismiss, the plaintiffs filed a motion to amend their complaint, which the court granted. The defendants then filed an answer to the amended complaint and, the next month, the court granted the plaintiffs' motion to stay the action so that one of them could

2 defendants argue that the statutory funding reguirements they are

accused of violating do not confer any judicially enforceable

rights on the plaintiffs, that the plaintiffs "allege no

statutory vehicle for redress" of the claimed First Amendment

violations, and that they do not allege sufficient facts to state

a claim for negligent infliction of emotional distress.2 This

court has subject-matter jurisdiction under 28 U.S.C. §§ 1331

(federal guestion) and 1367 (supplemental jurisdiction).

Following oral argument, the defendants' motion is granted

in part and denied in part. The defendants are correct that the

statutory funding reguirements invoked by the plaintiffs, which

reguire state foster care plans to provide for "reasonable

find substitute counsel. During the stay, the court denied the defendants' motion to dismiss without prejudice to reinstatement following the stay; after the stay was lifted, the defendants reinstated their motion to dismiss. Accordingly, the court will treat the motion to dismiss the complaint as a motion for judgment on the pleadings, see Rule 1 2 (c), directed at the amended complaint.

2In their original complaint, the plaintiffs had brought claims under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ("RFRA"), which the Supreme Court has held unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507 (1997). On that basis, the defendants have moved to dismiss those claims in their reinstated motion to dismiss. But the plaintiffs have excluded their RFRA claims from their amended complaint, and say in their reinstated objection to the motion to that they wish to "withdraw the claims without prejudice." Since the RFRA claims do not appear in the amended complaint, however, this court will not rule on either the defendants' motion to dismiss them nor the plaintiffs' reguest to "withdraw" them "without prejudice."

3 efforts" or "diligent recruitment," are not the sort of clear

congressional mandates that create privately enforceable rights

and therefore cannot provide the basis for relief here. The

defendants are also correct that the plaintiffs have failed to

allege a claim for negligent infliction of emotional distress on

behalf of SK, because they do not allege that any of the

defendants owed her a duty. The defendants are incorrect,

though, that the plaintiffs have failed to state a statutory

basis for recovering for the defendants' alleged violations of

their First Amendment rights, because the amended complaint

specifically cites just that vehicle, 42 U.S.C. § 1983.

I. Applicable legal standard

A motion for judgment on the pleadings under Rule 12 (c) is

evaluated under essentially the same standard as a Rule 12(b) (6)

motion for failure to state a claim. See, e.g., Simmons v.

Galvin, 575 F.3d 24, 30 (1st Cir. 2009). To survive such a

motion, the "complaint must contain factual allegations that

'raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true.'"

Id. (guoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). In determining whether the complaint meets that

standard, the court must construe the complaint's allegations in

4 the light most favorable to the plaintiff, drawing all reasonable

inferences in the plaintiff's favor. Id.; see also Perez-Acevedo

v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). The following

facts are set forth accordingly.

II. Background

BK and SK, who were born in India, "are firm believers of

the Hindu faith and actively practice its teachings," including

treating "the cow as sacred" and not "eating beef, eating from

cookware or dishes used to serve or cook beef," or "residing in

households in which beef is consumed." Their minor children,

identified as "MG," "KK," and "B," have been "brought up in a

home in which the cow was treated as a sacred animal and they

have followed their belief throughout their lives."

At some point (the amended complaint does not say when),

the plaintiffs' children were removed from their home and each

was placed with a different foster family. This was accomplished

by the DCYF's Claremont District Office, through its director,

Mary-Ann Babic-Keith, one of its assistant directors, Mark

Rissala, and two of its social workers, Jeszadiah Eisenberg and

Susan Holdsworth. The plaintiffs allege that, though their

religious faith was well-known to Rissala, Eisenberg, and

Holdsworth, the children were placed with foster families who

5 "did not recognize [their] beliefs and [who], in fact, violated

them by cooking, consuming, and serving beef."

In response, SK "offered to cook and supply food for the

children" to eat while in foster care, but, the plaintiffs say,

Eisenberg "rejected that offer out of hand." The plaintiffs

claim that SK eventually did give food she had prepared to B, who

brought it to her foster home only to have her foster parents

throw it away, and that those same foster parents sent B to

school without lunch on at least one day, "informing her it was

too hard to make her a lunch she could eat."

The plaintiffs further allege that "two of the children were

placed in homes where they were taken to a Christian church

almost weekly," including KK, who was placed in the home of "a

minister, who had in the past tried to covert [sic]" BK. The

plaintiffs say that, when they brought this, and their children's

exposure to beef while in foster care, to Rissala's attention, he

claimed there were no other foster homes available--which the

plaintiffs find hard to believe because they "reside in an area

of New Hampshire which has residents from a multitude of relgions

[sic], cultures and ethnicity [sic]."

Finally, the plaintiffs allege that SK, in particular,

suffered severe emotional distress--reguiring her

hospitalization--not only over the removal of her children from

6 her home, but through the actions of certain defendants while the

children were in their foster placements. In addition to the

defendants' failure to intervene in the foster families' alleged

violations of the childrens' religious beliefs, as just

discussed, the plaintiffs claim that Eisenberg "interfere[d]"

with the childrens' visits to SK in the hospital by interrupting

their conversations.

The plaintiffs' amended complaint is in six separately

numbered counts:

• violation of the First Amendment by placing the children in foster homes where beef was served (count 1);

• violation of the First Amendment by placing two of the children with foster families who took them to Christian religious services (count 2);

• violation of 42 U.S.C. § 1983 by placing the children in foster homes and with foster families who took them to Christian religious services (count 3) ;

• violation of 42 U.S.C. §§ 671(a) (15) (B) and 671(a) (31) by failing to make reasonable efforts (i) to preserve and reunify the plaintiffs' family and (ii) to place the children in the same foster home (count 4);

• violation of 42 U.S.C. § 622(b)(7) by failing to provide for the diligent recruitment of foster families reflecting the ethnic and racial diversity of children in the state needing foster care (count 5); and

• "negligent and reckless infliction of emotional distress" under New Hampshire law (count 6).

The plaintiffs seek compensatory and punitive damages. They do

not seek any prospective relief.

7 Ill. Analysis

As noted at the outset, the defendants move to dismiss the

plaintiffs' complaint because (A) they allege "no statutory

vehicle for redress" of their First Amendment claims, (B) they

cannot bring claims under federal statutes that impose

reguirements on state foster programs receiving federal funding,

because those statutes do not create any privately enforceable

rights, and (C) they fail to state a claim for negligent

infliction of emotional distress. As explained fully infra, the

defendants' second and third arguments are correct, but their

first argument is not.

A. The First Amendment claims

The defendants argue that counts 1 and 2, alleging

violations of the plaintiffs' First Amendment rights, fail to

state a claim for relief because "the U.S. Constitution does not

provide a private right of action, " and "the plaintiffs have not

alleged a statutory vehicle for seeking redress." Of course, the

"statutory vehicle for seeking redress" for "the deprivation of

any rights, privileges, or immunities secured by the

Constitution" is 42 U.S.C. § 1983, which specifically provides in

relevant part that "[e]very 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" to such a deprivation "shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress."

The defendants' argument for dismissal, then, is obviously

not that the plaintiffs cannot bring claims against the

defendants under § 1983 for violations of the plaintiffs' First

Amendment rights. So it must be that the plaintiffs have failed

to cite § 1983. This was true of the plaintiffs' original

complaint, which contained counts 1 and 2, but not count 3,

which, as described supra, specifically makes a claim under

§ 1983 for the same actions that counts 1 and 2 allege to have

violated the plaintiffs' First Amendment rights. Yet, despite

the filing of the amended complaint, see note 1, supra, the

defendants have reinstated their motion to dismiss in its

entirety, including the argument that the plaintiffs have

asserted no statutory vehicle for redress of the alleged First

Amendment violations. They were not required to in the first

place, see Morales-Vallellanes v. Potter, 339 F.3d 9, 14 (1st

Cir. 2003) ("A complaint need not point to the appropriate

statute or law in order to raise a claim for relief") (quotation formatting omitted), but in any event they have now. The motion

to dismiss counts 1 and 2 on this basis is denied.3

B. The statutory claims

The defendants seek to dismiss counts 4 and 5 of the amended

complaint, asserting claims against them for violating federal

statutes that impose reguirements on state foster programs

receiving federal funding, namely 42 U.S.C. §§ 671(a) (15) (B) ,

671(a) (31), and 622(b) (7), because those statutes do not create

any privately enforceable rights. Because there is no express

statutory authorization for private citizens to bring suit under

any of these provisions, the plaintiffs may do so here only if

the statutes imply a private right of action, or create a right

enforceable under § 1983. See, e.g., Gonzaga Univ. v. Doe, 536

U.S. 273, 283-84 (2002). This court agrees with the defendants

that none of the provisions in guestion here does either.

3The defendants have not challenged--nor has this court considered--whether counts 1 and 2 fail to state a claim for any other reason.

10 a. Section 671(a)(15) and (a)(31)

One of the statutes invoked by the plaintiffs, § 671(a), was

initially enacted as part of the Adoption Assistance and Child

Welfare Act of 1980, which amended certain provisions of the

Social Security Act. See Pub. L. 96-272, Tit. 1, § 101(a) (1), 94

Stat. 500, 503 ("AACWA") .4 The stated purpose of the AACWA was,

through the appropriation of federal funds, "enabling each State

to provide, in appropriate cases, foster care and adoption

assistance for children who otherwise would be eligible for

assistance" under certain federal Social Security programs. Id.

(codified at 42 U.S.C. § 670). But § 671(a) states that "for a

State to be eligible for payments under this part, it shall have

a plan approved by the Secretary" of Health and Human Services

which contains a number a specified provisions, set forth at

§§ 671(a)(1)-(31). The plaintiffs assert violations of two of

these provisions: §§ 671(a) (15) (B) and § 671(a) (31) .

4This provision was later amended as part of the Adoption and Safe Families Act of 1997. See Pub. L. 105-89, tit. I, § 101, 111 Stat. 2115, 2116 (codified at 42 U.S.C. §§ 671(a)(15)(A)- (F)). This amendment added, to the text of § 671(a)(15)(B), a cross-reference to § 671(a)(15)(D), but otherwise left that provision unchanged. The provision was later amended again as part of the Fostering Connections to Success and Increasing Adoptions Act of 2008, which, in relevant part, also added § 671 (a) (31) . See Pub. L. 110-351, tit. II, § 206, 122 Stat. 3949, 3962 (codified at 42 U.S.C. § 671(a) (31) ) .

11 The first of these provisions, § 671(a) (15) (B) , requires a

state plan to provide for "reasonable efforts shall be made to

preserve and reunify families (1) prior to the placement of the

child in foster care, to prevent or eliminate the need for

removing the child from the child's home; and (ii) to make it

possible for a child to return safely to the child's home." As

the defendants point out, the Supreme Court held in Suter v.

Artist M. , 503 U.S. 347, 364 (1992), that "42 U.S.C. § 671(a) (15)

neither confers an enforceable private right on its beneficiaries

nor creates an implied cause of action on their behalf" and

therefore cannot serve as the basis for a private lawsuit.

That is not entirely the end of the story, however.

Following the Suter decision. Congress enacted the Improving

America's Schools Act of 1994. See Pub. L. 103-382, 108 Stat.

3518. This act stated, in relevant part, that:

In an action brought to enforce a provision of the Social Security Act, such provision is not to be deemed unenforceable because of its conclusion 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. C t . 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 [671(a) (15)] of the Act is not enforceable in a private right of action.

12 Id. tit. V, part E, § 555(a), 108 Stat. at 4057-58 (codified at

42 U.S.C. § 1320a-2). As discussed infra, courts have differed

on how to apply § 1320a-2 to various provisions of the Social

Security Act. They have not differed, however, on how to apply

the express statement that § 1320a-2 "is not intended to alter

the holding of [Suter] that section [671(a)(15)] of the Act is

not enforceable in a private right of action." See, e.g., Carson

P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 539 (D. Neb.

2007); Jeanine B. ex rel. Blondis v. Thompson, 877 F. Supp. 1268,

1283 (E.D. Wis. 1995). That holding, then, is fatal to the

plaintiffs' claim under § 671(a) (15) (B) , notwithstanding

§ 1320a-2. The defendants' motion to dismiss count 4 insofar as

it makes a claim under that section is granted.

The plaintiffs also seek relief under a different provision

imposing reguirements on state foster care plans as a condition

of federal funding, § 671(a)(31). In relevant part, that

subsection reguires that such a plan:

provide[] that reasonable efforts shall be made--

(A) to place siblings removed from their home in the same foster care . . . unless the State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and

(B) in the case of siblings removed from their home who are not so jointly placed, to provide for freguent visitation or other ongoing interaction between the siblings, unless the State documents that freguent visitation or other ongoing interaction would be

13 contrary to the safety or well-being of any of the siblings[.]

There does not appear to be any case law discussing whether this

provision (which is relatively new, having been enacted in 2008,

see note 4, supra) implies a private right of action or a right

enforceable under § 1983. The defendants argue that § 671(a) (31)

does neither. The court agrees.

The Supreme Court has explained that "[a] court's role in

discerning whether personal rights exist in the § 1983 context

should . . . not differ from its role in discerning whether

personal rights exist in the implied right of action context."

Gonzaga, 536 U.S. at 285. Thus, "where the text and structure of

a statute provide no indication that Congress intends to create

new individual rights, there is no basis for a private suit,

whether under § 1983 or under an implied right of action." Id.

at 286. Moreover, "if Congress wishes to create new rights

enforceable under § 1983, it must do so in clear and unambiguous

terms--no less and no more than what is reguired for Congress to

create rights enforceable under an implied private right of

action." Id. at 290.

As already noted, the Supreme Court held in Suter that

"Congress did not intend to create a private remedy for

enforcement of the 'reasonable efforts' clause" of § 671(a) (15),

which "neither confers an enforceable private right on its

14 beneficiaries nor creates an implied cause of action on their

behalf." 503 U.S. at 364. In reaching this conclusion, the

Court relied on the fact that, aside from the text of the

provision itself,

[n]o further statutory guidance is found as to how 'reasonable efforts' are to be measured. This directive is the only one which Congress has given to the States, and it is a directive whose meaning will obviously vary with the circumstances of each individual case. How the State was left to comply with this directive, and with the other provisions of the Act, was, within broad limits, left up to the State.

Id. at 360. The Court observed that § 671(a) (15)'s "'reasonable

efforts' clause is not similarly worded" to other provisions in

the AACWA that "impose precise reguirements on the States." Id.

at 361 n.12 (citing, as an example, 42 U.S.C. § 672(e), which

disallows federal payments for a child voluntarily placed in

foster care for more than 180 days absent a judicial

determination that it is in the child's best interests) .

The Court explained that, while it is "well established that

Congress has the power to fix the terms under which it disburses

federal money to the States" under the Spending Clause of the

Constitution, Congress "must do so unambiguously." Id. at 356.

Thus, the Court noted, it had previously held that a federal

statute, setting conditions on the receipt of federal funds, that

"did not provide such unambiguous notice to the States" did not,

for that reason, "confer an implied cause of action." Id.

15 (discussing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

1, 24 (1981)) .5

The Suter Court also noted that other sections of the ACCWA

"provide enforcement mechanisms for the 'reasonable efforts'

clause of 42 U.S.C. § 671(a) (15)," including a provision

authorizing the Secretary of Health and Human Services "to reduce

or eliminate payments to a State on finding that the State's plan

no longer complies with § 671(a) or that 'there is a substantial

failure' in the administration of a plan such that the State is

not complying with its own plan." Id. at 360 (citing the former

version of 42 U.S.C. § 671(b)). The Court reasoned that,

"[w]hile these statutory provisions may not provide a

comprehensive enforcement mechanism so as to manifest Congress's

intent to foreclose remedies under § 1983, they do show that the

absence of a remedy to private plaintiffs under § 1983 does not

51he Court also distinguished § 671(a)(15) from the statute at issue in Wilder v. Virginia Hospital Ass'n, 496 U.S. 498 (1990), which, at the time, "reguired that Medicaid providers be reimbursed according to rates that the State finds, and makes assurances satisfactory to the Secretary [of Health and Human Services] are reasonable and adeguate to meet the costs of efficiently and economically operated facilities." Id. at 357 (guotation marks omitted). In Suter, the Court explained that, in ruling in Wilder that this statutory reguirement "created an enforceable right, on the part of providers seeking reimbursement, to challenge the rates set by the State," id., it had "relied in part on the fact that the statute and [its implementing] regulations set forth in some detail the factors to be considered in determining the methods for calculating rates," in contrast to the ACCWA. Id. at 359.

16 make the 'reasonable efforts' clause a dead letter." Id.

(footnotes omitted).

These observations as to the "reasonable efforts" clause of

§ 671(a)(15) apply with equal force to the "reasonable efforts"

clause of § 671(a) (31) . As in the case of § 671 (a) (15), the

ACCWA provides no guidance apart from the subsection itself on

what those "reasonable efforts" entail and, indeed,

§ 671(a)(31) contains other "directive[s] whose meaning will

obviously vary with the circumstances of each individual case,"

including an exception for joint sibling placements when they

"would be contrary to the safety or well-being of any of the

siblings," and a provision for "frequent visitation or other

ongoing interaction between the siblings" if they are not jointly

placed. Like § 671(a) (15), then, § 671(a) (31) is in contrast to

other provisions of the ACCWA--including other provisions of

§ 671(a) itself--that impose more precise requirements on states

as a condition of federal funding.6

6Significantly, where courts have recognized privately enforceable rights under particular sections of § 671 (a), those sections set forth more specific requirements. These include § 671(a)(1), which requires a state plan to "provide[] for foster care maintenance payments in accordance with [§ 672] and for adoption assistance in accordance with [§ 673]" and § 671(a)(16), which requires a state plan to "provide[] for the development of a case plan (as defined in [§ 675(1)]) for each child receiving foster care maintenance payments under the State plan and provide[] for a case review system which meets the requirements described in [§ 675(5)(B)] with respect to each such child."

17 Furthermore, while the provisions of § 671 (b) relied on by

the Suter Court as vesting enforcement authority in the Secretary

of Health and Human Services have since been deleted, they were

replaced by a provision to essentially the same effect. Social

Security Act Amendments of 1994, Pub. L. 103-342, tit. II,

§ 203(b), 108 Stat. 4398, 4454-55 (codified as amended at 42

U.S.C. § 1320a-2a) . That statute directs the Secretary, "in

consultation with the State agencies administering the State

programs under parts B and E of subchapter IV of this chapter" to

"promulgate regulations for the review of such programs to

determine whether such programs are in substantial conformity

with State plan reguirements under such Parts B and E ."7 42

U.S.C. § 1320a-2a(a) (formatting altered). The statute further

directs that these rules "specify the method to determine the

amount of any federal matching funds to be withheld due to the

See, e.g., Lynch v. Dukakis, 719 F.2d 504, 512 (1st Cir. 1983) (ruling, pre-Suter, that § 671(a)(16) conveys privately enforceable rights); Sam M. ex rel. Elliot v. Chafee, ___ F. Supp. 2d ___, No. 07-241, 2011 WL 2899213, at *19-*20 (D.R.I. July 20, 2011) (ruling that §§ 671(a) (1) and 671(a) (16) establish privately enforceable rights to a case plan and foster care maintenance payments); Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 170 n n . 13-14 (D. Mass. 2011) (observing that a majority of courts have so concluded). Naturally, this court need not--and does not--decide here whether other provisions of § 671(a) create privately enforceable rights.

7The state plan reguirements of § 671 (a) are included within Part E of subchapter IV of the Social Security Act. See ACCWA, Pub. L. 96-272, tit. I, § 101(a) (1), 94 Stat. 500.

18 State program's failure to so conform." Id. § 1320a-2a(b)(3).

The Secretary has promulgated such regulations. See 45 C.F.R.

§§ 1355.33, 1355.56. Just as in Suter, then, the existence of

other enforcement mechanisms for § 671(a) (31), authorizing the

Secretary to withhold federal payments to a state for failing to

substantially conform to its own plan, suggests that the

provision was not intended to create any private rights.

Of course, reasoning by analogy to Suter is less than

straightforward because of § 1320a-2, the Congressional response

to the decision. As one court has observed, "courts have not

uniformly interpreted the meaning of § 1320a-2": some have read

it "as reguiring lower courts to apply pre-Suter case law," while

others have rejected that approach. Carson P ., 240 F.R.D. at 538

(citing cases). Our court of appeals does not appear to have

decided the issue: in a decision in the wake of the statute, the

court "assume[d] that Congress intended that § 1320a-2 serve to

resurrect the Wilder test, with no Suter overlay," but did not

discuss the issue further. Visiting Nurse Ass'n of N. Shore,

Inc. v. Bullen, 93 F.3d 997, 1003 n.5 (1st Cir. 1996).8 The

court later cited the statute for the more modest proposition

8Our court of appeals later overruled the holding in Visiting Nurse Ass'n as having been abrogated by the Supreme Court's subseguent decision in Gonzaga. See Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir. 2004) .

19 that "[t]he mere fact that . . . laws are embedded within the

requirements for a state plan does not, by itself, make all of

the . . . provisions into ones stating a mere institutional

policy or practice rather than creating an individual right."

Rio Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 74 (1st Cir.

2005) . As another district court in this circuit recently

observed, this reflects the majority view. See Sam M., 2011 WL

2899213, at *18 (citing Carson P ., 240 F.R.D. at 538).

The plaintiffs themselves seem to endorse the majority

interpretation of § 1320a-2.9 And this court finds that

interpretation of § 1320a-2 persuasive because, if for no other

reason, it hews most closely to the language of the statute,

which is the beginning--and often the ending--point for

interpretive analysis. See, e.g., Ruiz v. Bally Total Fitness

Holding Corp., 496 F.3d 1, 8 (1st Cir. 2007) (citing United

States v. Ron Pair Enters., 489 U.S. 235, 241 (1989)). Again,

9In their objection the plaintiffs quote a case--without disagreeing with it--that "the purpose of [§ 1320a-2] was simply to clarify 'that the mere fact that an obligation is couched in a requirement that the State file a plan is not itself sufficient grounds for finding the obligation unenforceable under § 1983'" (quoting Harris v. James, 127 F.3d 993, 1003 (11th Cir. 1997)). They do cite another opinion that they say "appears to apply the Wilder analysis," but that case expressly did not reach the question of whether the statute there implied a private right of action, and did not even mention § 1320a-2. See Rodriguez ex rel. Rodriguez v. DeBuono, 162 F.3d 56, 61-62 (2d Cir. 1998), amended and superseded, 175 F.3d 227 (2d Cir. 1999) .

20 the first sentence of § 1320a-2 states simply that a provision of

the Social Security Act "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."

The only other effect the statute purports to have on judicial

decisions as to the private enforceability of Social Security Act

requirements is to "overturn[] any such grounds applied in

[Suter], but not applied in prior Supreme Court decisions

respecting such enforceability."

This clause does not, by its terms, require a return to

"pre-Suter case law." To the contrary, it allows courts to

follow Suter except insofar as it applied "grounds for

determining the availability of private actions to enforce State

plan requirements" not applied in the Court's prior decisions.10

See Harris, 127 F.3d at 1002 ("Section 1320a-2 does not purport

to reject any and all grounds relied upon in Suter; it purports

only to overrule certain grounds.") And the only such "grounds"

the statute itself identifies are the placement of the provision

in question in "a section of the [Social Security] Act requiring

10Nor does § 1320a-2 state that there even were any such grounds--and, indeed, two circuit courts interpreting § 1320a-2 have suggested that there were not. See White v. Chambliss, 112 F.3d 731, 739 n.4 (4th Cir. 1997); LaShawn A. v. Barry, 69 F.3d 556, 570 (D.C. Cir. 1995), vacated and superseded on unrelated grounds, 87 F.3d 1389 (D.C. Cir. 1996) (en banc).

21 a State plan or specifying the required contents of a State

plan." So, as one court has observed, "most courts hold that if

§ 1320a-2 effectively overruled anything in Suter, it overruled

only that portion of the opinion identifying and allowing a court

to rely exclusively on the 'state plan' criteria in determining

the existence of a federal right" enforceable through private

action. Carson P ., 240 F.R.D. at 538-39 (citing cases from five

different federal courts of appeals, including Rio Grande) .

Under this majority interpretation of § 1320a-2, the statute

does not prevent this court from concluding, based on the aspects

of Suter just discussed at length, that § 671(a) (31) creates no

privately enforceable rights. Those aspects of Suter--that the

absence of a clear standard and the presence of other enforcement

mechanisms in a federal statute indicate that Congress did not

intend it to bestow such a right--were left unscathed by

§ 1320(a)(2), at least under the majority view.

Furthermore, even if § 1320(a)(2) does, as a minority of

courts have ruled, require them to "rewind the clock and look to

cases prior to Suter to determine the enforceability of other

provisions under the [AACWA]," Jeanine B ., 877 F. Supp. at 1283,

even those Supreme Court cases foreclose the conclusion that

§ 671(a)(31) creates a privately enforceable right. That much is

clear from the Supreme Court's more recent decision in Blessing

22 v. Freestone, 520 U.S. 329, 340-41 (1997), which set forth

factors to which the Court has "traditionally looked . . . when

determining whether a particular statutory provision gives rise

to a federal right"--and did so, coincidentally or not, with

reference solely to pre-Suter case law. Of particular relevance

here, the Court held that "the plaintiff must demonstrate that

the right assertedly protected by the statute is not so 'vague

and amorphous' that its enforcement would strain judicial

competence," id. (guoting Wright v. City of Roanoke Redev. &

Hous. Auth., 479 U.S. 418, 431-32 (1987)), and that "the

provision giving rise to the right must be couched in mandatory,

rather than precatory terms," id. at 341 (citing Wilder, 496 U.S.

at 510-11 and Pennhurst, 451 U.S. at 17).

For the reasons already discussed, § 671(a) (31) flunks these

tests. First, trying to enforce the right for which the

plaintiffs invoke it--"reasonable efforts . . . to place siblings

removed from their home in the same foster care unless the State

documents that such a joint placement would be contrary to the

safety or well-being of any of the siblings"--would "strain

judicial competence," because the right would be "vague and

amorphous." Second, while the plaintiffs emphasize the mandatory

language of § 671(a)(31)--"that reasonable efforts shall be

made"--that provision cannot be read in isolation. The section

23 of the Social Security Act empowering the Secretary to enact

regulations to review state foster care programs, as discussed

supra, allows those regulations to provide for the withholding of

funds only if "the program fails substantially to . . . conform"

with, among other reguirements, those of § 671(a). 42 U.S.C.

§ 1320a-2a(b) (3) (A) (emphasis added) .11 The Supreme Court held

in Gonzaga that the similar structure of another federal statute,

under which recipients can "avoid termination of funding so long

as they comply substantially" with listed criteria, also failed

to "make out the reguisite congressional intent to confer

individual rights enforceable by § 1983." 536 U.S. at 288

(guotation marks omitted).

Taken separately, then, the inspecific standard of

§ 671(a)(31) and the "substantial conformity" test used by the

Secretary in enforcing it both contraindicate any congressional

intent that the provision create privately enforceable rights.

Taken together, though, they make that conclusion even stronger.

As our court of appeals has observed, finding no privately

enforceable right in a Medicaid Act reguirement that a state plan

"provide such methods and procedures . . . to assure that

“ Even in the case of a lack of substantial compliance, the Secretary is empowered to revoke federal funding only after he "afford[s] the State an opportunity to adopt and implement a corrective action plan, approved by the Secretary, designed to end the failure to so conform." 42 U.S.C. § 1320a-2a(b)(4)(A).

24 payments are consistent with efficiency, economy, and quality of

care," 42 U.S.C. § 1396a(a)(A)(30), "the generality of the goals

and the structure for implementing them suggests [sic] that plan

review by the Secretary is the central means of enforcement

intended by Congress." Long Term Care, 362 F.3d at 58 (citing

Gonzaga, 536 U.S. at 292 (Breyer, J., concurring)). Justice

Breyer explained in his Gonzaga concurrence that such a scheme

expresses a preference for "the expertise, uniformity, wide­

spread consultation, and resulting administrative guidance that

can accompany agency decisionmaking" over "the comparative risk

of inconsistent interpretations and misincentives that can arise

out of an occasional inappropriate application of the statute in

a private action." 536 U.S. at 292.

Importantly, this reasoning is unaffected by § 1320a-2,

even under the minority view that it restricts courts to pre-

Suter case law in analyzing Social Security Act provisions for

privately enforceable rights. Again, Blessing set forth the

relevant requirements for finding such a right--that it be set

forth in unambiguous and mandatory terms--solely by reference to

the Court's pre-Suter case law. Long Term Care applied these

requirements in ruling that a provision of the Medicaid Act

(which, as the case recognizes, is part of the Social Security

25 Act, see 362 F.3d at 51) did not create privately enforceable

rights, albeit without specifically discussing § 1320a-2.

Other courts of appeals have followed suit. The court in

Watson v. Weeks, 436 F.3d 1152, 1162-63 (9th Cir. 2006), held,

while acknowledging § 1320a-2, that another provision of the

Medicaid Act (reguiring that "a state plan for medical assistance

must include reasonable standards for determining eligibility"

(parenthetical omitted)) did not create a privately enforceable

right because "it is too vague and amorphous for judicial

enforcement."12 The court in 31 Foster Children v. Bush, 32 9

F.3d 1255, 1272 (11th Cir. 2003), also while acknowledging

§ 1320a-2, held that other provisions of § 671(a) itself did not

create privately enforceable rights because of the "substantial

conformity" standards of § 1320a-2a.

So, even if § 1320a-2 does reguire courts to apply only the

Supreme Court's pre-Suter case law in deciding whether provisions

of the Social Security Act create privately enforceable rights,

that case law compels the conclusion that § 671(a) (31) does not

12Watson also distinguished Wilder on the ground that the term "reasonable and adeguate," as the statutory reguirement for the states' rates of reimbursement to Medicaid providers, was "objective and thus judicially manageable because the statute tied it to a benchmark of the 'efficiently and economically operated facility.'" 436 F.3d at 1163. The statute at issue in Watson, like § 671(a)(31), contained no similar benchmark. Thus, even without regard to Suter, Wilder does not support the plaintiffs' position here.

26 do so. The provision's text and surrounding structure simply

"provide no indication that Congress intend[ed] to create new

individual rights." Gonzaga, 536 U.S. at 286. The defendants'

motion to dismiss count 4 insofar as it asserts a claim under

that provision is granted.

b. Section 622(b)(7)

For nearly identical reasons, the third section of the

Social Security Act invoked by the plaintiffs, 42 U.S.C.

§ 622(b)(7), also does not create any privately enforceable

rights.13 That provision appears in a list of reguirements that

a state's "plan for child welfare services" must have "[i]n order

to be eligible for payment under this subpart," id. § 622(a),

which makes allotments for public welfare programs, id. § 623(a).

Section 622(b)(7) provides that such a plan shall "provide for

the diligent recruitment of potential foster and adoptive

families that reflect the ethnic and racial diversity of children

in the state for whom foster and adoptive homes are needed."

The term "diligent recruitment" provides no more guidance or

notice to states on what is reguired of them than the term

"reasonable efforts" in §§ 671(a)(15) and (31). Furthermore,

13This provision was enacted as part of the Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. 103-382, tit. V, part E, § 554, 108 Stat. 4056, 4057.

27 like § 671(a) (31), § 622(b) (7) contains other phrases ("potential

foster and adoptive families," "the ethnic and racial diversity

of children in the state") that defy ready definition, or

judicial application, but are left undefined by the statute.

Also like §§ 631(a) (15) and (31), § 622(b) (7) is contained within

a part of the Social Security Act (part E of subchapter 4, see

note 13, supra) that is enforceable by the Secretary under

§ 1320a-2a--which, again, limits his ability to withhold funds to

cases where "substantial conformity" with federally mandated

state plan requirements is lacking, see 42 U.S.C. §§ 1320a-

2 (a)(1), (b)(3)(A). Accordingly, § 622(b)(7) fails to create any

privately enforceable rights for the same reason that

§ 631(a)(31) fails to do so--and, as in the case of

§ 631(a)(31), this conclusion holds whether or not § 1320a-2 is

read to restrict the analysis to pre-Suter case law. See Charlie

H. v. Whitman, 83 F. Supp. 2d 476, 494 n.6 (D.N.J. 2000)

(observing that a claim under § 622(b)(7) "would be too vague and

amorphous to lend itself to proper judicial administration").14

14While the plaintiffs do not provide any authority that § 622(b)(7) creates privately enforceable rights, this court's research revealed one case coming to that conclusion. See Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 683 (S.D.N.Y. 1996) . In ruling that § 622 (b) (7), as well as provisions of § 671(a) not at issue here, had that effect, the Marisol A. court found that "the language of these provisions is mandatory and sets forth the requirements that the state must meet to be eligible for funding" and that "[n]one of these

28 The defendants' motion to dismiss count 5, which asserts their

violation of § 622(b) (7), is granted.

C. The claim for "negligent and reckless infliction of emotional distress"

Finally, the defendants have moved to dismiss the

plaintiffs' claim for "negligent and reckless infliction of

emotional distress." As described in Part II, supra, SK claims

that the defendants caused her emotional distress, not only by

removing her children from her home, but also by failing to

intervene in the foster families' violations of the children's

religious beliefs, and also by interfering in the children's

visits to her in the hospital. The defendants argue that the

plaintiffs have not stated a claim for negligent infliction of

emotional distress because, among other things, they have failed

to establish that the defendants owed a duty to SK.

The defendants are correct on that point. There is no

guestion that a claim for negligent infliction of emotional

distress, like any other negligence claim, demands the existence

provisions is so vague and amorphous as to be beyond the competence of this court to enforce." For the reasons just discussed at length, however, this court disagrees with those findings, at least as they respect § 622(b)(7). It is also worth noting that Marisol A. was decided prior to Gonzaga which, as the court of appeals has pointed out, marked at least "a shift in emphasis" in analyzing statutes for privately enforceable rights. Long Term Care, 362 F.3d at 59.

29 of a duty from the defendant to the plaintiff. See Corso v.

Merrill, 119 N.H. 647, 651-54 (1979). As this court has

previously observed, public agencies and their employees do not

acquire a duty to a parent by taking custody of his or her child;

they acquire a duty to the child.15 See Brodeur v. Claremont

Sch. Dist., 626 F. Supp. 2d 195, 226 n.32 (D.N.H. 2009). Aside

from the defendants' responsibility for the children (and, it

should be noted, even the extent of that is unclear from the

amended complaint), the plaintiffs suggest no basis for any duty

between SK and any of the defendants that could support a

negligent infliction of emotional distress claim.16 The

defendants' motion to dismiss count 6 is granted.

15The amended complaint does not assert the "negligent or reckless infliction of emotional distress claim" on behalf of any plaintiff but SK (there is a statement to the effect that it "was upsetting" to one of the children, B, when her foster parents declined SK's advice on how to care for B when she was sick, but none of the defendants is alleged to have participated in that exchange, and the foster parents are not named as defendants).

16The allegation that the defendants were "reckless" in inflicting emotional distress does not substitute for an allegation of any duty to SK. In their objection to the motion to dismiss, the plaintiffs suggest that the defendants' infliction of emotional distress was "intentional," but that is not the claim pled in the amended complaint.

30 IV. Conclusion

For the foregoing reasons, the defendants' reinstated motion

to dismiss (document no. 43) is GRANTED as to counts 4-6 of the

amended complaint, but DENIED as to counts 1-3. Because the

defendants have already answered the amended complaint, see note

1, supra, the parties shall confer and submit a joint discovery

plan as reguired by Fed. R. Civ. P. 26(f) and L.R. 26.1 by

October 14, 2011. The court will not hold a preliminary pretrial

conference.

SO ORDERED.

Joseph N. Lap^Lante Un/ted States District Judge

Dated: September 30, 2011

cc: Nancy Sue Tierney, Esg. B .K ., pro se Karen A. Schlitzer, Esg.