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 parentsgeneral 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 
2

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 
4

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 
5

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 threefactor 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 
9

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.