372 Holding Health Insurance Marketplaces Accountable 2015
rights for the purposes of § 1983, the Courts of Appeals similarly focused
on whether the text of the statute reflected a congressional intent to create a
right. 267 These circuits surveyed the Supreme Court’s § 1983 precedents
and honed in on the Court’s language and reasoning emphasizing the centrality of congressional intent. 268 For example in South Camden Citizens in
Action v. New Jersey Department of Environmental Protection, the Third
Circuit concluded “the Supreme Court refined its analysis to focus directly
on Congress’ intent to create enforceable rights and to confine its holdings
to the limits of that intent.” 269 The Sixth, Ninth, and Eleventh Circuits have
also addressed the question of the enforceability of regulatory rights after
the Supreme Court’s decisions in Sandoval and Gonzaga, and each court
concluded that § 1983 could not be used to enforce rights created by regulation. 270 The Ninth and Sixth Circuits explicitly concluded that the holding
in Sandoval applied to cases brought through a § 1983 cause of action as
well. 271 Moreover, the Ninth Circuit reasoned that the focus on the statute is
especially important when looking at Spending Clause statutes because the
statutory language is necessary to “put a State on notice” of the requirements of the federal statute. 272
However, simply ignoring regulations as these circuits have done is not
the only possible conclusion after Sandoval and Gonzaga. Some circuits
have provided a little more leeway, allowing regulations to “flesh out” a
statute and therefore be held enforceable. 273 This approach still requires
some statutory text to create the right, but permits federal regulations to
greatly expand and detail what the right entails. In Shakhnes v. Berlin, the
Second Circuit considered the Medicaid regulations specifying the ninety-day timeline for receiving a decision on a Medicaid application. 274 The
267. See Save Our Valley v. Sound Transit, 335 F.3d 932, 943-44 (9th Cir. 2003); S.
Camden Citizens in Action v. N.J. Dep’t. of Envtl. Prot., 274 F.3d 771, 779-80 (3d. Cir.
268. See Save Our Valley, 335 F.3d at 943-44; S. Camden Citizens in Action, 274 F.3d
269. 274 F.3d at 784.
270. See Am. Ass’n of People with Disabilities v. Harris, 605 F.3d 1124, 1134 (11th
Cir. 2010) (“we find no congressional intent to create a private right of action for the regulation’s enforcement”), vacated, 647 F.3d 1093 (11th Cir. 2011); Johnson v. City of Detroit,
446 F.3d 614, 628-29 (6th Cir. 2006); Sanchez v. Johnson, 416 F.3d 1051, 1060 (9th Cir.
271. See Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009); City of Detroit, 446 F.3d at 628-29; Sanchez, 416 F.3d at 1060.
272. See Lonberg, 571 F.3d at 851; Sanchez, 416 F.3d at 1060.
273. See Shakhnes v. Berlin, 689 F.3d 244, 251 (2d Cir. 2012) cert. denied, 133 S. Ct.
1808 (2013); See Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003), overruled by, Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917 (10th
274. Shakhnes, 689 F. 3d at 254.