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 Health and Hospital Corp. of Marion County, Indiana v. Talevski

In Health and Hospital Corp. of Marion County, Indiana v. Talevski the State and Local Legal Center (SLLC) has asked the U.S. Supreme Court to hold that private parties can’t bring lawsuits for money damages under Spending Clause legislation unless the statute explicit states such suits are possible.

In 1990 in Wilder v. Virginia Hospital Association the Supreme Court held that private parties could sue to enforce rights contained in some federal Spending Clause legislation, even where Congress didn’t expressly provide for a private right of action in the statute. Wilder involved the Boren Amendment to Medicaid which Congress has repealed.


Since Wilder the Supreme Court hasn’t recognized any new Spending Clause-based private rights. But lower courts have, like the Seventh Circuit in this case. The Seventh Circuit held that private rights of action may be brought under the Federal Nursing Home Rights Act (FNHRA) transfer and medication rules. FNHRA lacks an express private right of action.   

Medicaid is Spending Clause statute. To receive Medicaid funding nursing homes must comply with FNHRA. Ivanka Talevski sued Valparaiso Care claiming it violated FNHRA’s medication rules by giving her husband, who had dementia, unnecessary psychotropic medications for purposes of chemical restraint. She likewise claimed it violated FNHRA’s transfer rules by transferring him to another facility without consent. 

The SLLC amicus brief argues that the Supreme Court should hold that the Spending Clause does not permit implied private rights of action. The brief points out that the Supreme Court has held that federal grants to states may only be accompanied by unambiguous conditions. “But judicially created implied rights of action expose states to conditions unknown at the time they agreed to accept federal dollars. This is a serious problem, because a substantial portion of states’ revenue comes from federal grants, so the possibility of future private actions turns every federal dollar States accept into a litigation risk down the road.”

If the Court decides to continue to allow implied private rights of action in Spending Clause legislation the SLLC argues that it should hold that no private right of action exists under FNHRA’s transfer and medication rules. Counties operate hundreds of nursing homes around the country. “Under the Seventh Circuit’s holding, many local governments may simply decide it is not worth the increased risk of liability, and choose to get out of the nursing-home business. That would not be good for patients: As numerous studies confirm, county-owned nursing homes are widely regarded as providing better patient outcomes than private alternatives.”

Finally, the SLLC argues federalism supports not implying a private right of action under FNHRA. “The decision below also interferes with States’ ability to craft their own legal remedies for medical malpractice, by superimposing an unnecessary, uniform federal cause of action. Every state in the country has medical malpractice laws that keep the doors to the courthouse open for litigants, and federalism concerns counsel against allowing private FNHRA actions as a means of circumventing state-law malpractice claims.”

Christopher J. Wright and John R. Grimm of Harris, Wiltshire & Grannis wrote the SLLC amicus brief which the following organizations joined:  National Conference of State Legislatures, Council of State Governments, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association and Government Finance Officers Association.

Sackett v. EPA

In Sackett v. EPA the U.S. Supreme Court will decide the proper test for determining when wetlands are “waters of the United States” (WOTUS). The State and Local Legal Center (SLLC) amicus brief argues that municipal water infrastructure isn’t WOTUS.

The Clean Water Act (CWA) prohibits discharging pollutants into “navigable waters,” defined as “waters of the United States” without a permit.

CWA regulations define WOTUS to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries. In Rapanos v. United States (2006) Justice Scalia and Justice Kennedy offered competing criteria for determining when a wetland is WOTUS.  

Justice Scalia, writing for four Justices, stated that “waters of the United States” extends to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. 

For Justice Kennedy, writing alone, if wetlands have a “significant nexus” to navigable waters they are “waters of the United States.” Kennedy’s “significant nexus” test turns on whether wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters.  

In this case the Sacketts purchased a “soggy residential lot” 300 feet from Idaho’s Priest Lake. To the north of their lot, with a road in between, is a wetland that drains to a tributary that feed into a creek that flows southwest of the Sacketts’ property and empties into Priest Lake.

After obtaining permits from the county the Sacketts began backfilling the property with sand and gravel to create a stable grade. The Environmental Protection Agency issued the Sacketts a “formal administrative compliance order” explaining they were violating the CWA and that failure to comply could result in penalties of over $40,000 per day. 


Before the Ninth Circuit the Sacketts argued that the Scalia opinion controls whether their property contains wetlands. The Ninth Circuit disagreed and applied Justice Kennedy’s test. 


The SLLC amicus brief, filed in support of neither party, doesn’t advocate that the Court adopt a particular test to determine whether a wetland is WOTUS. Instead, the brief argues that municipal water infrastructure which provides water supply and treatment, flood control, and stormwater management protection isn’t WOTUS.  More specifically, the SLLC brief asks the Court to exclude from WOTUS aqueducts and irrigation canals, terminal reservoirs, groundwater recharge and infiltration basins, and green infrastructure.  


The brief points out, much of this infrastructure “is in close proximity to waters that would qualify as traditionally navigable, and/or includes features that could be construed as meeting the definition of WOTUS” as promulgated by the federal government. The brief argues: “A commonsense reading of the CWA, one that looks at the Act as a whole, and its implications for traditional state control of water supply and flood control, recognizes the difference between the infrastructure that amici operate and those waters that were intended to be treated as WOTUS under the Act. Failure to recognize this difference leads to absurdities and an inability of the Act to achieve its stated purpose.”

Roderick Walston and Andre Monette of Best, Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

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