Kenneth Hensley, as adoptive parents of BLH v. Lillian Koller, individually

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2147
KENNETH HENSLEY, as adoptive parents of BLH; ANGELA
HENSLEY, as adoptive parents of BLH; BLH, by parents-
general guardians Kenneth and Angela Hensley,
Plaintiffs - Appellees,
v.
LILLIAN KOLLER, individually and in her official capacity as
State Director for the South Carolina Department of Social
Services; ELIZABETH PATTERSON, individually as Former
Director of the South Carolina Department of Social
Services; KIM AYDLETTE, individually as Former Director of
the South Carolina Department of Social Services; KATHLEEN
HAYES, individually as Former Director of the South Carolina
Department of Social Services,
Defendants - Appellants,
and
SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:11-cv-02827-GRA)
Argued: May 16, 2013 Decided: July 3, 2013
Before MOTZ, DAVIS, and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote

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the opinion, in which Judge Davis and Judge Wynn joined.
ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellants. Timothy Ryan Langley, HODGE &
LANGLEY LAW FIRM, P.C., Spartanburg, South Carolina, for
Appellees. ON BRIEF: William H. Davidson, II, Joel S. Hughes,
DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for
Appellants. Charles J. Hodge, HODGE & LANGLEY LAW FIRM, P.C.,
Spartanburg, South Carolina; James Fletcher Thompson, JAMES
FLETCHER THOMPSON, LLC, Spartanburg, South Carolina, for
Appellees.

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DIANA GRIBBON MOTZ, Circuit Judge:
A minor, by and through her adopted parents, brought this
class action challenging South Carolina’s reduction of monthly
adoption assistance benefits. She claims the reduction violates
the Adoption Assistance and Child Welfare Act, and seeks
declaratory and injunctive relief, as well as money damages.
The district court certified the class and denied the parties’
cross-motions for summary judgment. For the reasons that
follow, we reverse and remand.
I.
The South Carolina Department of Social Services (“DSS”)
provides adoption assistance subsidies and foster care
maintenance payments pursuant to federal funding authorized by
the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C.
§ 670 et seq. (2006) (“the Act”). To receive funding under the
Act, a state must develop a plan for a subsidy and maintenance
program and must obtain approval of that plan by the United
States Secretary of Health and Human Services. See id.
§ 671(a).
The Act sets forth specific requirements governing foster
care maintenance payments, id. § 672, and adoption assistance
payments, id. § 673. With respect to the latter, a state with
an approved plan “shall enter into adoption assistance

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agreements . . . with the adoptive parents of children with
special needs.” Id. § 673(a)(1)(A). The Act further provides:
The amount of the [adoption assistance] payments . . .
shall be determined through agreement between the
adoptive parents and the State . . . , which shall
take into consideration the circumstances of the
adopting parents and the needs of the child being
adopted, and may be readjusted periodically, with the
concurrence of the adopting parents . . . , depending
upon changes in such circumstances. However, in no
case may the amount of the adoption assistance payment
. . . exceed the foster care maintenance payment which
would have been paid during the period if the child
with respect to whom the adoption assistance payment
is made had been in a foster family home.
Id. § 673(a)(3). The adoption subsidy agreement between DSS and
adoptive parents, referenced in § 673, establishes the payment
rate for an adoptive child.
II.
In April 1997, BLH, a minor child, was placed in temporary
foster care with Angela and Kenneth Hensley. Beginning in 1998,
DSS approved monthly foster care maintenance payments of $675 to
Mr. and Mrs. Hensley for the care of BLH. These payments
included a “Difficulty of Care Rate” upward adjustment because
DSS found BLH to be a special needs child. In early 1999, Mr.
and Mrs. Hensley applied for a court order declaring them BLH’s
adoptive parents.
In preparing their application, Mr. and Mrs. Hensley sought
to convert the foster care maintenance payment into an adoption

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assistance subsidy. On March 22, 1999, DSS and Mr. and Mrs.
Hensley entered into an Adoption Subsidy Agreement under which
DSS agreed to furnish the Hensleys with monthly adoption
assistance payments of $675. Two months later, a state court
issued an order declaring Mr. and Mrs. Hensley the adoptive
parents of BLH. Mr. and Mrs. Hensley continued to receive the
$675 adoption subsidy monthly for three years.
But in June 2002, then-DSS Director Elizabeth G. Patterson
announced that as a result of “South Carolina’s budget crisis,”
DSS would reduce by twenty dollars all monthly foster care
maintenance payments and adoption assistance subsidies,
beginning that July. Pursuant to this across-the-board
reduction, BLH’s subsidy decreased to $655. In 2004, DSS
rescinded the twenty dollar reduction to foster care maintenance
payments, but DSS has never rescinded the 2002 reduction to
adoption assistance subsidies; thus, for BLH, the latter remains
$655.
In September 2011, BLH, by and through Mr. and Mrs. Hensley
(collectively, “the Hensleys”), filed in state court a class
action under 42 U.S.C. § 1983 against Lillian Koller,
individually and in her official capacity as director of DSS.
Koller removed the action to federal court. The Hensleys
amended their complaint three times, removed the South Carolina
Department of Social Services as a party, and added Patterson,

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Kim Aydlette, and Kathleen Hayes, individually as former
directors of DSS (collectively, with Koller, “the Directors”).
The Directors then moved for summary judgment. The
Hensleys opposed the motion and filed a combined cross-motion
for summary judgment and motion for class certification. After
the district court heard argument, it granted the Hensleys’
motion for class certification and denied the cross-motions for
summary judgment. The Directors timely noted this appeal.
III.
We have jurisdiction over this interlocutory appeal because
the Directors’ assertion of qualified immunity from suit
presents purely legal questions. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). We review de novo a district court’s
denial of qualified immunity. Johnson v. Caudill, 475 F.3d 645,
650 (4th Cir. 2007). In doing so, “[t]o the extent that the
district court has not fully set forth the facts on which its
decision is based, we assume the facts that may reasonably be
inferred from the record when viewed in the light most favorable
to the plaintiff.” See Waterman v. Batton, 393 F.3d 471, 473
(4th Cir. 2005) (citing Winfield v. Bass, 106 F.3d 525, 533–35
(4th Cir. 1997) (en banc)).
Qualified immunity shields government officials performing
discretionary functions from suits for civil damages under

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§ 1983. Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 306 (4th Cir. 2006). The qualified immunity inquiry asks
(1) whether an official violated a federal right, and (2)
whether that right was clearly established at the time the
official acted. See Saucier v. Katz, 533 U.S. 194, 200 (2001).
A court may address the second question -- whether a right is
clearly established -- without ruling on the first -- existence
of the right. Pearson v. Callahan, 555 U.S. 223, 232, 236
(2009). But “there are cases in which there would be little if
any conservation of judicial resources to be had by beginning
and ending with a discussion of the ‘clearly established’
prong.” Id. at 236.
This is such a case. The Hensleys seek injunctive and
declaratory relief in addition to money damages. A
determination that a right is not clearly established only
shields a state official from money damages. See Akers v.
Caperton, 998 F.2d 220, 226-28 (4th Cir. 1982) (holding clearly
established law protected state officials only from liability
for money damages, and so remanding case for consideration of
claim for equitable relief). Thus, if we resolved the case on
the ground that no clearly established law permits an award of
damages against the state officials, the case would necessarily
return to the district court for a determination of the
availability of injunctive and declaratory relief. Here, the

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“conservation of judicial resources,” Pearson, 555 U.S. at 236,
weighs strongly in favor of resolving the question of whether
the Directors violated the Hensleys’ federal rights.
For this reason, we begin (and end) with the first step of
Saucier’s two-step inquiry -- determination of whether
§ 673(a)(3) creates a privately enforceable right to parental
concurrence, which the Directors have violated.
IV.
“[U]nless Congress speak[s] with a clear voice, and
manifests an unambiguous intent to create individually
enforceable rights, federal funding provisions provide no basis
for private enforcement by § 1983.” Gonzaga Univ. v. Doe, 536
U.S. 273, 280 (2002) (internal quotation marks omitted). In
Blessing v. Freestone, the Supreme Court announced a three-
factor test to determine whether a particular statutory
provision gives rise to a federal right privately enforceable
under 42 U.S.C. § 1983:
First, Congress must have intended that the provision
in question benefit the plaintiff. Second, 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.
Third, the statute must unambiguously impose a binding
obligation on the States. In other words, the
provision giving rise to the asserted right must be
couched in mandatory, rather than precatory, terms.
520 U.S. 329, 340-41 (1997) (internal quotation marks and

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citations omitted). Of course, even if a statute meets the
Blessing three-factor test establishing a privately enforceable
right, a plaintiff cannot recover unless it can properly plead a
violation of that statutory right. In this case we hold that
the statute, § 673(a)(3), does set forth a privately enforceable
right, but that the Hensleys have failed to plead any violation
of that right by the Directors.
A.
Following the Blessing three-factor test, we initially
consider whether the Hensleys have pled a violation of a federal
right.
As to the first Blessing question, whether § 673(a)(3)
“confer[s] rights on a particular class of persons,” Gonzaga,
536 U.S. at 285 (internal quotation marks omitted), we agree
with the only other circuit to address that question that
§ 673(a)(3) does “evinc[e] a clear intent to create a federal
right,” see ASW v. Oregon, 424 F.3d 970, 975-76 (9th Cir. 2005).
For the Act provides that the adoption assistance payments:
shall be determined through agreement between the
adoptive parents and the State . . . , which shall
take into consideration the circumstances of the
adopting parents and the needs of the child being
adopted, and may be readjusted periodically, with the
concurrence of the adopting parents . . . , depending
upon changes in such circumstances.

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42 U.S.C. § 673(a)(3) (emphasis added).1
In considering the second Blessing factor, we determine
whether the asserted right is “so ‘vague and amorphous’ that its
enforcement would strain judicial competence.” 520 U.S. at 340-
41. The Directors argue that the term “concurrence” is too
“vague[] and amorphous[]” to create an enforceable right. We
disagree. “In interpreting the plain language of a statute, we
give the terms their ordinary, contemporary, common meaning.”
Minor v. Bostwick Labs., Inc., 669 F.3d 428, 435 (4th Cir. 2012)
(internal quotation marks omitted). Black’s Law Dictionary
defines “concurrence” as “[a]greement; assent.” Black’s Law
Dictionary (9th ed. 2009). Thus, § 673(a)(3) clearly provides
that a state may not readjust an adoption assistance payment
amount without an adoptive parent’s “concurrence,” i.e.,
agreement or assent.
Turning to Blessing’s final factor, we examine whether the
statute “unambiguously impose[s] a binding obligation on the
State[].” 520 U.S. at 341. To do so we must resolve whether
1 The Directors contend that the Act cannot be challenged by
BLH, or Mr. and Mrs. Hensley in their capacity “as adoptive
parents of BLH,” because it contemplates only an agreement
between the state and the adoptive parents. This argument
fails. The Act provides that its stated purpose is to “enabl[e]
each State to provide . . . adoption assistance for children
with special needs.” 42 U.S.C. § 670 (emphasis added). This
language clearly reveals Congressional “inten[t] to confer
individual rights upon” this “class of beneficiaries.” See
Gonzaga, 536 U.S. at 285.

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“the provision giving rise to the asserted right” is “couched in
mandatory, rather than precatory, terms.” Id. In this case,
the operative “provision,” § 673(a)(3), requires states to enter
into agreements with adoptive parents to determine adoption
assistance payments. It further requires that such agreed
determinations “take into consideration the circumstances of the
adopting parents and the needs of the child being adopted.” Id.
See ASW, 424 F.3d at 976 (“[T]here is no ambiguity as to what
[states must] do under § 673(a)(3) as a condition of receiving
federal funding under [the Act].”). And if a state wants to
readjust the agreed-to payments, it must have “the concurrence
of the adopting parents” to do so, with the limited exception we
address below. 42 U.S.C. § 673(a)(3).
For these reasons, we conclude that, pursuant to the
Blessing test, § 673(a)(3) does give rise to a limited privately
enforceable federal right cognizable under 42 U.S.C. § 1983.
B.
But only violations of such enforceable rights can provide
a basis for recovery. See Saucier, 533 U.S. at 200 (“[T]he
first inquiry must be whether a . . . right would have been
violated on the facts alleged . . . .” (emphasis added)). Thus,
we must also determine whether the Hensleys have alleged facts
establishing that the Directors violated the Hensleys’ rights
under § 673(a)(3) when the Directors reduced adoption assistance

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subsidies.
The statute’s limited exception speaks to this very
question. Section 673(a)(3) provides:
in no case may the amount of the adoption assistance
payment . . . exceed the foster care maintenance
payment which would have been paid during the period
if the child with respect to whom the adoption
assistance payment is made had been in a foster family
home.
42 U.S.C. § 673(a)(3). The most logical reading of this
language is that the statute prohibits adoption assistance
subsidies that exceed foster care maintenance payments.2 As a
result, § 673(a)(3) establishes a right to parental concurrence
in subsidy readjustment determinations except when the subsidy
must be reduced due to reductions in foster care maintenance
payments.
It is undisputed that DSS reduced the foster care
maintenance payments by twenty dollars at the same time DSS
reduced the adoption assistance subsidy by the same amount. The
Hensleys do not contend that at any time prior to the 2002
reduction, the adoption assistance subsidy they received for BLH
was less than BLH’s $675 foster care maintenance payment.
2 The policy manual issued by the United States Department
of Health & Human Services, which administers the federal
funding authorized by the Act, supports this reading of
§ 673(a)(3). See Admin. for Children & Families, U.S. Dep’t of
Health & Human Servs., Child Welfare Policy Manual § 8.2D.4
(2012).

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It was only in 2002, when South Carolina decreased by
twenty dollars all foster care maintenance payments, that the
State also decreased BLH’s adoption assistance subsidy by twenty
dollars. The State’s failure to do so would have violated
federal law. For, under § 673(a)(3), a failure to reduce BLH’s
adoption assistance payment would have resulted in a payment
“exceed[ing] the foster care maintenance payment” she would have
received had she remained in foster care. For these reasons,
the Hensleys cannot establish that the Directors violated the
Hensleys’ rights under the Act and therefore the Directors are
entitled to qualified immunity.3
V.
For the reasons stated, we reverse the judgment of the
district court and remand the case for entry of a judgment
consistent with this opinion.
REVERSED and REMANDED
3 The Hensleys also argue that the Directors violated their
parental concurrence rights when DSS later increased foster care
maintenance payments without also increasing the adoption
assistance subsidy. However, the 2004 increase did not
“readjust” the amount of the adoption assistance subsidies;
accordingly, the Directors’ 2004 action did not trigger –- let
alone violate -- the parental concurrence requirement.

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