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Public Law and Private Causes of Action

by | Aug 9, 2021 | Firm News |

There are many violations of laws and regulations that are also actionable through private civil lawsuits. Assault and battery are both crimes as well as torts. The crime of theft can be compared to the tort of conversion. However, not every violation of the law is something that can be acted upon by an individual. If someone runs a stop sign and strikes your vehicle, you may be able to bring suit against them for negligence but you probably can’t actually enforce traffic law. This idea was the heart of the dispute in the recent decision by the United States Court of Appeals for the Seventh Circuit in Talevski by next friend Talevski v. Health & Hosp. Corp. of Marion Cty., No. 20-1664, 2021 WL 3163061 (7th Cir. July 27, 2021).

The Complaint alleges that the Defendant, a state-run nursing facility, violated the Federal Nursing Home Reform Act (FNHRA) in its care of Gorgi Talevski, a patient living in its care with dementia. As a result of these alleged violation, the Plaintiff brought suit under 42 U.S.C. § 1983, which allows for private federal actions when there is a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” The District Court found that the provisions of FNHRA (which sets standards for what facilities may receive Federal Medicaid funds) that the Plaintiff cited did not create an action under § 1983, and the Plaintiff Appealed that decision.

The Appellate Court reversed the dismissal, citing to the Supreme Court’s decision in Blessing v. Freestone, 520 U.S. 329 (1997) which sets up a three-part test for § 1983 actions:

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.

The Court found that the provisions of the FNHRA at issue met all three of these criteria. As to the first, Congress explicitly describes the provisions as setting for the rights entitled to each resident of a covered facility, and the whole law is specifically aimed at curbing abuses of individual residents of nursing care facilities, albeit through the congressional spending power of the Medicaid program. As to the second factor, the provisions of the FNHRA is very specific in it prohibitions, and they fall well within the competency of courts to evaluate. The Court quickly dispensed with the third factor, pointing out that the language in the FNHRA is that of a mandate.

Having found that the Plaintiff presumptively has a cause of action under 42 U.S.C. § 1983, the court also addresses another arguments made by the Defendant: that the FNHRA sets up a comprehensive enforcement scheme that would preclude individual enforcement. This objection is rooted in the idea that, when the federal government has established a particularly elaborate and restrictive enforcement setup, the Supreme Court has in some instances found that private enforcement of rights outside of the remedies of a specific statute might unreasonably frustrate the regulatory scheme set up y Congress. The Appellate Court in this case found that the FNHRA, although it includes some administrative remedies, sets up no such scheme that would crowd out and replace private actions under § 1983.

This decision is important in that, as the Court itself notes, the determination of the existence of § 1983 actions based on specific statutes can be a complicated and delicate decision. The decision marks only the third Federal Appellate Circuit to find a cause of action under § 1983 and will certainly influence litigation over the care provided at publicly-run nursing facilities in the future.
Attorney Travis Dunn