Health & Hospital Corporation of Marion County v. Talevski: Determining When A Statute Creates a Federal Right Actionable Under 42 U.S.C. § 1983

Health & Hospital Corporation of Marion County v. Talevski: Determining When A Statute Creates a Federal Right Actionable Under 42 U.S.C. § 1983

Legal Sidebari
Health & Hospital Corporation of Marion
County v. Talevski: Determining When A
Statute Creates a Federal Right Actionable
Under 42 U.S.C. § 1983
November 3, 2022
Not every right under the Constitution or federal statute is explicitly associated with a private remedy.
One federal law that provides a remedy when state or local governments violate rights protected by the
Constitution or federal statute is found in 42 U.S.C. § 1983 (Section 1983). Health & Hospital
Corporation of Marion County v. Talevski, before the Supreme Court this term, presents an opportunity
for the Court to examine the scope of Section 1983 remedies, and possibly to provide insight into trends
in this area of law.
Section 1983 potential y al ows individuals to recover compensatory, nominal, or punitive damages for,
among other things, the deprivation of “rights” secured by federal “laws.” At issue in Talevski is (1)
whether Spending Clause legislation—which typical y establish a cooperative federal-state program under
which states accept federal funds and agree to spend them in accordance with congressional y-imposed
conditions—general y gives rise to privately enforceable rights under Section 1983, and if so, (2)
specifical y whether provisions of the Federal Nursing Home Reform Act provide such a right. The first
and more far-reaching question may require the Court to reexamine decades of precedent in which it has
recognized Section 1983 actions in Spending Clause legislation. The second question, involving an
examination of a specific statutory scheme, may give the Court the opportunity to clarify its test for
evaluating when statutes create federal “rights” that are enforceable under Section 1983.
This Legal Sidebar provides an overview of the relevant legal background on Section 1983 and the facts
and arguments presented in Talevski, as wel as certain considerations for Congress.
Legal Background
Section 1983, enacted as part of the Civil Rights Act of 1871, provides a federal cause of action for “the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person
acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.”
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Section 1983 is often used by individuals to recover for violations of constitutional rights by state and
local government actors. In the 1980 case Maine v. Thiboutot, the Supreme Court also held that the
Section 1983 remedy “broadly encompasses” violations not only of constitutional rights, but also rights
established under federal statutes, because the plain language of Section 1983 provides relief for the
violation of any “rights, privileges, or immunities secured by the Constitution and laws.” Rejecting the
argument that the phrase “and laws” in Section 1983 should be limited to civil rights or equal protection
laws, the Court noted that Congress attached no modifiers to the phrase. Therefore, Section 1983
“undoubtedly embrace[d]” claims for a state’s failure to pay benefits required under the Social Security
Act. The Court later clarified this view, explaining that because Section 1983 “speaks in terms of ‘rights,
privileges, or immunities,’” and not violations of federal law, the remedy is only available if a state actor
violated a “federal right.”
Since Thiboutot, the Court has considered whether a Spending Clause statute confers a federal right
actionable under Section 1983 on several occasions. In the 1981 case Pennhurst State School & Hospital
v. Halderman, the Court rejected a claim that a Spending Clause statute, the Developmental y Disabled
Assistance and Bil of Rights Act of 1975, conferred an enforceable right. Residents of a state institution
for the developmental y disabled sought relief for violations of a “bil of rights” provision within the Act.
Important to the Court was the special nature of laws passed pursuant to the Spending Clause, which the
Court described as “much in the nature of a contract: in return for federal funds, the States agree to
comply with federal y imposed conditions.” Thus, any conditions on the grant of federal money must be
unambiguous so that states can be “cognizant of the consequences of their participation” in the spending
program. According to the Court, federal rights can only exist within Spending Clause statutes when
Congress imposes obligations in mandatory, not precatory, terms. In this case, the Court concluded there
was no evidence that the bil of rights provision imposed mandatory, binding obligations on the states.
In the 1990 case Wilder v. Virginia Hospital Association, the Court held that a reimbursement provision of
the Medicaid Act created an enforceable right under Section 1983 because the provision conferred a
binding obligation to provide specific monetary entitlements to an intended beneficiary. However, in the
years since Wilder, the Court has rejected attempts to infer enforceable rights in Spending Clause
legislation. In the 1992 case Suter v. Artist M., the Court held that provisions of the Adoption Assistance
and Child Welfare Act of 1980 did not “unambiguously confer an enforceable right upon the Act’s
beneficiaries.” Instead, the Court explained that the language imposed a “generalized duty” on the State
that could only be enforced by the Secretary by reducing or eliminating payments to a noncompliant state.
Because the legal question in these cases turns on the interpretation of statutes, Congress was able to
respond to the Suter decision through legislation. In 1994, Congress enacted 42 U.S.C. § 1320a-2 and
§ 1320a-10 to clarify that individuals should be “able to seek redress in the federal courts to the extent
they were able to prior to the decision in Suter v. Artist M.”
The Court rejected another attempt to infer an enforceable right in Blessing v. Freestone, in which it also
formal y articulated its three-prong test for determining the existence of individual rights enforceable
under Section 1983. To determine whether a federal statute conferred a right actionable under Section
1983, a court must find: (1) Congress intended the statutory provision benefit the plaintiff; (2) the asserted
right is not so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the
provision must unambiguously impose a binding obligation, meaning the provision giving rise to the
asserted right must be couched in mandatory, rather than precatory, terms.
Five years later in Gonzaga University v. Doe, the Court clarified the first prong of the Blessing test. The
Court rejected the notion that “anything short of an unambiguously conferred right” can support a Section
1983 cause of action, and suggested that past cases involving “implied private rights of action” may
provide guidance in determining whether a statute confers individual rights enforceable under Section
1983. In both Section 1983 and implied private right of action cases, the important inquiry is determining
whether Congress intended for the statute to “confer[] rights on a particular class of persons.” Thus, the

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Court explained that rights-creating language must focus on the individual to be benefited and not on the
aggregate, generalized, or systemwide policies or practices of a regulated entity. After Gonzaga, it was no
longer enough that a plaintiff fal within “the general zone of interest” of the statute.
If a court determines that a statute confers an “individual right” under the Blessing three-factor test, there
is a presumption that the right is enforceable under Section 1983. This presumption may be rebutted,
however, if Congress expressly or impliedly foreclosed enforcement under Section 1983 “by creating a
comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” The
Supreme Court has found that Congress implicitly foreclosed Section 1983 liability in only three cases,
al of which involved a statute that required plaintiffs to “comply with particular procedures and/or to
exhaust particular administrative remedies prior to filing suit.” According to the Court, “offering plaintiffs
a direct route to court via § 1983 would have circumvented these procedures” in a way that would have
been “inconsistent with Congress’s careful y tailored scheme.”
Facts and Procedural History of Talevski
The Talevski case arises out of requirements that Congress adopted in 1987 for nursing homes
participating in Medicare or Medicaid. The relevant provisions are known as the Federal Nursing Home
Reform Act (FNHRA). The parties in Talevski do not dispute that FNHRA is a Spending Clause statute
because it imposes conditions of participation on nursing homes that receive federal funds under those
programs.
FNHRA contains a detailed list of “requirements relating to residents’ rights,” and provides that nursing
homes “must protect and promote the rights of each resident.” These rights include “[t]he right to be free
from . . . any physical or chemical restraints imposed for purposes of discipline or convenience and not
required to treat the resident’s medical symptoms.” The Act also includes certain “[t]ransfer and discharge
rights,” which provide that a nursing home “must permit each resident to remain in the facility and must
not transfer or discharge the resident from the facility” except in certain circumstances. FNHRA also
contains enforcement mechanisms designed to ensure compliance with its directives. For example, each
nursing home is required to adopt a grievance process for its residents, states must make an administrative
procedure available to chal enge transfer and discharge decisions, and the federal government is
authorized to take a range of enforcement actions against noncompliant nursing homes.
Respondent Gorgi Talevski was a resident at a state-run nursing home owned by Petitioner Health and
Hospital Corporation of Marion County, Indiana. Talevski al eged that Petitioners violated his FNHRA
rights by subjecting him to the use of il egal chemical restraints and depriving him of the right to receive
due process before he was discharged or transferred from the nursing facility. The district court dismissed
the claims, holding that FNHRA requirements are not privately enforceable under Section 1983.
In reversing the district court, the Seventh Circuit Court of Appeals applied the Blessing three-part test to
determine that FNHRA created individual rights that were enforceable under Section 1983. According to
the court, the FNHRA provisions at issue contained the exact type of “rights-creating language” described
in Gonzaga, as the statutory language “spoke of resident rights, not merely steps that the facilities were
required to take.” As to the second and third Blessing factors, the court concluded, respectively, that the
rights created under FNHRA are “focused, straightforward inquiries that agencies and courts are wel
equipped to resolve,” and that there is “no dispute” that the asserted rights are couched in mandatory
terms. The court further concluded that Congress did not “specifical y foreclose[]” a Section 1983
remedy. In the Court’s view, FNHRA’s enforcement mechanisms, are not the “type of ‘unusual y
elaborate, carefully tailored, and restrictive enforcement schemes’ that section 1983 claims would
frustrate.”
The court also rejected a broader argument that Spending Clause legislation cannot give rise to privately
enforceable rights under Section 1983. While acknowledging that the Supreme Court had not recognized

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a private right of action in Spending Clause legislation since Wilder, the court emphasized that the
Supreme Court had since reviewed cases involving private rights in Spending Clause legislation and has
not yet “disapproved Wilder.” Instead, according to the court, the Supreme Court merely determined that
the parties had not cleared the “high bar for these private rights of action.”
Arguments to the Supreme Court
The two issues before the Court are (1) whether Spending Clause legislation general y gives rise to
privately enforceable rights under Section 1983, and if so, (2) whether provisions of FNHRA provide
such a right. As to the first issue, Petitioners renew the argument that Spending Clause legislation does
not give rise to Section 1983 enforceable rights, asking the Court to revisit Wilder and predecessor
decisions al owing Section 1983 claims under Spending Clause statutes. Petitioners assert that, over the
last 20 years, some Supreme Court justices have expressed doubt as to whether Section 1983 is available
as a remedy in Spending Clause legislation. These justices have suggested that Spending Clause
legislation is “much in the nature of a contract,” and this contract analogy “raises serious questions as to
whether parties may sue to enforce Spending Clause legislation.”
In particular, Petitioners noted that in Blessing, Justice Antonin Scalia, in a concurring opinion,
questioned whether third-party beneficiaries may use Section 1983 to enforce contracts between the state
and federal government created in Spending Clause legislation. In his view, the rights secured by Section
1983 should be determined “according to the understanding of § 1983 when it was enacted,” and it was
debatable whether third-party beneficiaries could sue to enforce contracts when Section 1983 was enacted
in 1871. Based on this reasoning, Petitioners assert that at the time Section 1983 was enacted, the law
general y precluded third-party beneficiaries from suing to enforce contracts, especial y government
contracts. Petitioners also argue that “implying” Section 1983 rights in Spending Clause legislation
violates separation of powers and federalism principles. According to Petitioners, it is up to Congress to
create private causes of action, and when it does, it must do so unambiguously so that States can make a
knowing decision whether to participate in federal spending programs.
In response, Respondents rely on the principle from Thiboutot that the plain text of Section 1983, which
permits suit against any person who deprives another of any “rights . . . secured by the Constitution and
laws.” Respondents argue that by its terms, Section 1983 “applies to any right protected by a federal law”
and “there is no reason to treat Spending Clause legislation different from legislation enacted under any
other power.” Respondents also emphasize that the Court has long maintained that rights conferred by
Spending Clause statutes are enforceable under Section 1983, and that Congress has repeatedly ratified
this interpretation. For example, Respondents point to Congress’s 1994 amendments enacted in response
to the Court’s Suter decision. Respondents describe this as “super ratification,” in that Congress explicitly
recognized that there are Spending Clause statutes enforceable under Section 1983 and that absent
congressional action, Suter would have rendered these statutes unenforceable. Respondents also rebuff
Petitioners’ contract-theory arguments, claiming that there is no evidence that Congress intended Section
1983 to be interpreted according to common law contract theories, and even if so, the prevailing rule at
the time Section 1983 was enacted was that third-party beneficiaries could sue to enforce a contract.
If the Court concludes that Spending Clause legislation can create enforceable rights under Section 1983,
Petitioners argue that FNHRA does not do so because it includes a comprehensive enforcement scheme,
and the language of the statute fails the Blessing test. In response, Respondents again focus on the
substance of FNHRA, contending that the FNHRA rights at issue are individual y enforceable rights
under the Blessing test, and that FNHRA’s remedial scheme is “entirely compatible with § 1983.”

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Considerations for Congress
The Court’s decision in Talevski could have far-reaching implications for the availability of Section 1983
remedies for violations of Spending Clause statutes by state or local governments, as wel as the treatment
of implied causes of action in federal laws.
First, the Court may conclude that Section 1983 is not available as a remedy for state or local
governmental violations of federal rights created within Spending Clause statutes. Should this occur,
Congress may need to reexamine the broad array of existing Spending Clause laws and, if it chooses,
enact legislation to create private causes of action for individual rights those laws create. According to
amicus briefs filed by some current and former Members of Congress, Congress has long relied on the
Court’s interpretation that rights established within Spending Clause legislation can be actionable under
Section 1983. The current Members of Congress expressed concern that any changes in this presumption
would create significant burdens, requiring Congress to “revisit—and potential y renegotiate, rewrite,
reenact, and reimplement—its past legislation addressing various programs . . . .”
Second, if the Court rejects the Spending Clause argument in Talevski, it is possible that the Court may
stil find that Section 1983 is unavailable as a remedy, reflecting broader trends in the Court’s approach to
judicial y-implied private causes of action and the scope of available remedies. The Court has appeared
increasingly skeptical of claims of constitutional and statutory implied causes of action, emphasizing that
“creating a cause of action is a legislative endeavor.” The Court has, for example, routinely declined to
recognize new remedies under Bivens v. Six Unknown Named Agent of Federal Bureau of Narcotics for
constitutional violations committed by federal government actors. The Court has also moved away from
implying causes of action within statutes themselves, such as the Medicaid Act. The Court has explained
that it historical y followed a “different approach to recognizing implied causes of action than it follows
now,” and it formerly “impl[ied] causes of action not explicit in the statutory text itself.” More recently,
the Court has adopted a “far more cautious course before finding implied causes of action,” and has
advised that “where Congress ‘intends private litigants to have a cause of action,’ the ‘far better course’ is
for Congress to confer that remedy in explicit terms.”
The issue in Talevski differs slightly from those raised in the cases above in that Section 1983 is not an
implied cause of action, but an explicit statutory cause of action available for violations of the
Constitution and laws by state actors. In Gonzaga, however, the Court explained that implied rights of
action cases and cases involving Section 1983 raise the same legal question in that both require the court
to determine “whether a statute confers any rights at al .” To the extent the Court’s decision in Talevski
follows the Court’s approach in implied rights of action cases, Congress may wish to take such a decision
into account when it considers the remedial scheme of future legislation—i.e., whether to expressly
confer privately enforceable rights under Section 1983 or other private causes of action. Talevski may also
provide Talevski may also provide important insight as to how courts might resolve future cases involving
whether a statute creates individual rights enforceable under Section 1983. For example, there is currently
a circuit split regarding whether the “free-choice-of-provider” provision of the Medicaid Act confers
individual rights enforceable under Section 1983.

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Author Information

Whitney K. Novak

Legislative Attorney

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