Nahmod Law

Consider Health & Hospital Corporation of Marion County v. Talevski, 143 S. Ct. — (2023), aff’g, 6 F.4th 713 (7th Cir. 2021), an important case involving Congress’s spending power and the relationship between § 1983 and alleged violations of the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C.A. §§1396r et seq.

In Talevski, the plaintiff sued a state-run nursing home facility and others under § 1983 for violations of the unnecessary-restraint and predischarge-notice provisions of the Act. Reversing the district court which had dismissed for failure to state a claim, the Seventh Circuit agreed with decisions of the Third and Ninth Circuits and ruled that violations of FNHRA are actionable under §1983. According to the Seventh Circuit, the text and structure of the Act “unambiguously reveal that it establishes individual rights for a particular class of beneficiaries.” Further, there was nothing in the Act that impliedly foreclosed §1983 claims.

The Questions Presented On Certiorari

On certiorari review, the Supreme Court addressed the following Questions Presented: “(1) Whether, in light of compelling historical evidence to the contrary, the Court should reexamine its holding that spending clause legislation gives rise to privately enforceable rights under 42 U.S.C. §1983; and (2) whether, assuming spending clause statutes ever give rise to private rights enforceable via Section 1983, the Federal Nursing Home Amendments Act of 1987’s transfer and medication rules do so.” It was the first Question Presented in particular that attracted the Court’s attention and that of many observers, including me.

The Majority Opinion

In an opinion by Justice Jackson, the Supreme Court affirmed the Seventh Circuit. It rejected the broad defense argument that the “laws” language of § 1983 does not include federal statutes such as FNHRA that were enacted pursuant to Congress’s spending power. The Court declared: “’Laws’ means ‘laws,’ and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” It strongly disagreed with the defense contention that because the FNHRA was enacted under the spending power and bound states through their agreements to participate, it was analogous to a contract “which was not ‘generally’ enforceable by third party beneficiaries at common law.” For one thing, it is not so clear that this was in fact the common law of contracts in 1871. For another, § 1983 claims are analogous to torts, not contracts.  The Court emphasized that it relied on § 1983’s text and history, as well as its precedents, for its conclusion that there is no § 1983  “carve out” for federal legislation enacted under the spending power.

Next, the Court addressed the specifics of FNHRA’s statutory language. It determined that the two relevant provisions of the Act unambiguously created enforceable rights, in “stark contrast to the statutory provisions that failed Gonzaga’s test in Gonzaga itself.”

Finally, the Court concluded that there was no incompatibility between the Act’s remedial scheme and private § 1983 enforcement of the unnecessary-restraint and predischarge-notice.provisions of the Act. The Court, applying the approach of City of Rancho Palos Verdes, then observed that there was nothing in the Act that would indicate “implicit preclusion” of a § 1983 remedy or that would suggest that allowing a § 1983 remedy would “thwart” the Congressional purpose in enacting the Act. Along these lines, it was significant that the Act included a provision that stated that the Act’s remedies were “in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies.”

The Three Concurring Justices: Justices Gorsuch, Barrett and the Chief

Justice Gorsuch concurred, observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.”[1] Justice Barratt, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash—between one private judicial remedy against another, more expansive remedy—is not required to find that a statute forecloses recourse to § 1983.” 

The Two Dissenting Justices: Justices Thomas and Alito

Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of § 1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through § 1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”

Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow § 1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing § 1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”

Comments

In Talevski, § 1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward, such claims will continue to be viewed from a posture of skepticism by a number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.

It is also worth noting that several justices in Talevski appear to have found a unique way around the broad scope of §1983 by focusing on the word “secured” in the statute and then giving it a crabbed interpretation. This reminds me of the Court’s disingeneous ruling earlier in the Term in Vega v. Tekoh, 142 S. Ct. — (2022), that Miranda rights are not “secured by the Constitution.” I call it “disingenuous” because in my view it can only be explained by an implicit rejection of Miranda. See my post: https://nahmodlaw.com/2022/07/12/miranda-violations-and-section-1983-the-disingenuous-decision-in-vega-v-tekoh/

I discuss “laws” actions, including those based on federal spending power legislation, extensively in Chapter 2 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 ed.)(West/Westlaw).

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