Near the end of an oral argument that stretched beyond 1½ hours, Arnold & Porter attorney Andrew Tutt reminded the U.S. Supreme Court what started the case — a family was trying to get proper medical care for their elderly father.
Representing the Talevski family in their lawsuit against the Health & Hospital Corporation of Marion County, Tutt was answering Justice Brett Kavanaugh’s inquiry about the administrative process available to handle the family’s grievances.
Tutt described the state-level administrative remedies as minimal and not requiring the state regulator to even respond. When Kavanaugh pressed him about the ability to turn to the federal government, Tutt replied the family did everything it could before deciding to go to court.
“You Honor, there may be a process for getting to the Health and Human Services secretary to actually get enforcement for rights violations by nursing homes,” Tutt said. “If there was, I promise you this family would have pursued it. But, as far as I know, there was no process available.”
The case, Health & Hospital Corp., et al., v. Ivanka Talevski, personal representative of the estate of Gorgi Talevski, deceased, 21-806, was the second case argued during the Tuesday morning session.
Arguments were scheduled to begin at 11:10 a.m., but with the first case running long, the hearing did not start until 11:53 a.m. It continued until 1:27 p.m. and included another instance of Justice Clarence Thomas breaking his usual silence and querying the attorneys.
Before the nine justices were two questions.
The first, which has drawn the most attention, is whether private citizens can sue under 42 U.S.C. § 1983 to enforce spending clause statutes. Those statutes underpin a myriad of public benefit programs like Medicaid, Medicare and the Supplemental Nutrition Assistance Program.
The second, arising from the issue that sparked the original lawsuit, asked if the Federal Nursing Home Reform Act’s rights against chemical restraint and involuntary discharge and transfer are enforceable under Section 1983.
Lawrence Robbins, partner at Friedman Kaplan Seiler & Adelman, represented the Health & Hospital Corporation. Seated with him at the table was Indiana Solicitor General Thomas M. Fisher, who was given time to present Indiana’s arguments in support of HHC.
Tutt presented the Talevski family’ arguments. Seated behind him in the courtroom was Susie Talevski, an attorney and daughter of the late Gorgi Talevski.
Benjamin Snyder, assistant to the U.S. solicitor general, argued for both sides. In an amicus brief in support of neither party, the lead litigator of the U.S. Department of Justice split on the two questions before the court.
Snyder urged the court to maintain the precedent behind Talevski’s first question and continue to allow private causes of action against state officials under Section 1983. At the same time, he argued the rights granted in FNHRA are not enforceable under Section 1983.
Fisher used his time to try to convince the Supreme Court to provide clarity by finding for HHC.
The Indiana solicitor general said the lower courts are confused by the Supreme Court’s precedent addressing enforcement of spending clause statutes. He told the justices they should finish what was started in Gonzaga University v. Doe, 536 U.S. 273 (2002), and hold that private citizens cannot enforce federal spending conditions unless Congress gives express permission to do so.
However, the justices seemed skeptical.
Chief Justice John Roberts, who represented Gonzaga University in the 2002 case, said the Supreme Court had “imposed a pretty high bar” in Gonzaga in terms of the evidence required to show that Congress intended a private enforceable right. Justice Amy Coney Barrett asked if the confusion would not be cleared by telling the lower courts they should look to Gonzaga because it is more recent and laid down a stricter standard.
Fisher replied that states would still be coming with “case after case after case asking for clarification.”
Justice Sonia Sotomayor joined by asking, “So why don’t you bring us a case where the right is more ambiguous? This case doesn’t seem to present that confusion that you seem to be referring to.”
As the midday sun streamed through the windows, the justices pushed the attorneys and countered several of their arguments. Roberts kept order by calling on each justice individually in order of seniority to provide them the opportunity to ask questions. Only Justice Neil Gorsuch did not pose any questions or make any statements.
As the newest to join the Supreme Court, Justice Ketanji Brown Jackson had to wait until all the other justices made their inquiries. But when she was allowed to question the attorneys, she went to the heart of HHC’s historical context argument.
The Health & Hospital Corporation contends that when Congress crafted Section 1983 in the 1870s, it would have understood the provision as limiting third parties’ ability to sue to enforce government contracts.
HHC attorney Robbins described Section 1983’s history as the “old soil” that must be considered when examining a statute that provides substantive rights.
Jackson pointed out that Congress crafted Section 1983 as part of the Ku Klux Klan Act. The intent was to give “people who were being terrorized” the ability to enforce their rights when some states were not protecting those rights.
“So while there might be situations in which we carry old soil into our interpretation,” Jackson said, “I don’t understand how you can interpret an express grant of authority to go to court to enforce rights created by law, consistent with the opposite situation at common law and say, ‘We have to limit the current right because, in common law, you didn’t have that right.’”
Robbins responded, “… (T)his Court has consistently held that when it comes to spending clause statutes, the common law of contracts gives us the clearest window into what 1983 covered.”
Jackson pushed, “And the explicit language of the statute is not affirmative evidence to the extent that it conflicts with the state of the common law.”
Robbins held his position, stating, “… I find no such evidence that FNHRA or 1983 abrogates the common law against which 1983 was enacted. And when we ask the question, ‘What rights are secured by law?’ I contend that it is the marriage of these two statues — 1983 enacted in 1871 and amended to add laws in ’74, and FNHRA, enacted in 1987 — and they both bring the old soil with them.”
The issue of third parties enforcing contracts returned during Tutt’s arguments.
Justice Samuel Alito contended the spending clause legislation does not confer a right but, instead, is dependent on the entity agreeing to accept federal money.
When Tutt responded that HHC’s “contract law analogy” did not make sense, Justice Thomas leaned forward in his chair.
The longest serving justice on the Supreme Court pressed the attorney on what should be used in place of the contract analogy. Thomas said the analogy has been used by the courts to determine if a third-party beneficiary of a contract can enforce some of the rights in that contract.
“That’s the way we have done it,” Thomas said. “Now you’re saying it’s OK to have the contract analogy at the formation stage, but you can drop it along the way if it becomes inconvenient on the back end; that is, on the rights vindication stage.”
Tutt replied, “We don’t dispute that Mr. Talevski was the beneficiary of this contract. … (But) it’s not material for purposes of this analysis because Section 1983 says that he has the right to sue, and the state promised that he would have the right to sue by entering into the agreement with the federal government.”
At the conclusion of the oral argument, Roberts stated HHC v. Talevski had been submitted. A decision in the case is expected before the end of the court’s term in the summer of 2023.