FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INDEPENDENT LIVING CENTER OF 

SOUTHERN CALIFORNIA, INC., a

nonprofit corporation; GRAY

PANTHERS OF SACRAMENTO, a

nonprofit corporation; GRAY

PANTHERS OF SAN FRANCISCO, a

nonprofit corporation; GERALD

SHAPIRO, PHARM. D. doing business

as UPTOWN PHARMACY AND GIFT No. 08-56061

SHOPPE; SHARON STEEN doing D.C. No.

business as CENTRAL PHARMACY;  2:08-cv-03315-CASMARK BECKWITH; MARGARET MAN

DOWLING; TRAN PHARMACY, INC.,

doing business as TRAN PHARMACY; OPINION

JASON YOUNG,

Petitioners-Appellants,

v.

SANDRA SHEWRY, Director of the

Department of Health Care

Services, State of California,

Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

July 11, 2008—Pasadena, California

Filed September 17, 2008

Before: Stephen Reinhardt, Marsha S. Berzon, and

Milan D. Smith, Jr., Circuit Judges.

13025
Opinion by Judge Berzon

13026 INDEPENDENT LIVING CENTER v. SHEWRY
COUNSEL

Lynn S. Carman and Stanley L. Friedman (argued) for Independent Living Center of Southern California, et al.,

petitioners-appellants. 

Edmund G. Brown, Jr., Attorney General of the State of California; Richard T. Waldow, Supervising Deputy Attorney

General; Jennifer M. Kim (argued), Supervising Deputy

Attorney General; Phillip J. Matsumoto, Tara L. Newman,

Gregory M. Cribs, and Sara Ugaz, Deputy Attorneys General;

for Sandra Shewry, Director of the Department of Health Care

Services of the State of California, respondent-appellee. 

INDEPENDENT LIVING CENTER v. SHEWRY 13029
OPINION

BERZON, Circuit Judge: 

Petitioner-appellants, a group of pharmacies, health care

providers, senior citizens’ groups, and Medi-Cal beneficiaries

(collectively “ILC”),1 seek to enjoin a state official from

implementing legislation reducing payments to medical service providers under the state’s Medicaid program, known as

“Medi-Cal,” by ten percent. ILC alleged in its complaint that

the state legislation violates certain provisions of the federal

Medicaid Act, and is therefore preempted under the Supremacy Clause.2

 Although ILC sought preliminary relief, the district court denied any such relief, holding that ILC could not

allege any viable claim for injunctive relief because none of

the petitioners or their members have any federal right to

1Petitioner-appellants include the Independent Living Center of Southern California, a non-profit corporation providing services to over 8,000

disabled individuals annually; Gray Panthers of Sacramento and San Francisco, senior citizens’ advocacy groups whose members include a number

of Medi-Cal recipients; Gerald Shapiro, a licensed registered pharmacist

operating Uptown Pharmacy & Gift Shoppe, which delivers prescription

drugs to roughly 5,000 home-bound patients in Los Angeles; Sharon

Steen, co-owner of Central Pharmacy in Santa Monica; Mark Beckwith,

a quadriplegic suffering from spinal muscular atrophy who receives medical and pharmacy services under Medi-Cal; Margaret Dowling, a paraplegic who receives part of her medical services under Medi-Cal; Jason

Young, an individual suffering from blindness and brain damage who

receives in-home support services from a Medi-Cal managed care program; and Tran Pharmacy, Inc., a California corporation operating a retail

pharmacy in Garden Grove. Independent Living Center, the Gray Panthers, and the pharmacy petitioners also sued to assert the interests of their

respective patients and members. We refer to petitioner-appellants collectively as “petitioners,” “Independent Living Center,” or “ILC.” 

2The Supremacy Clause provides that “[t]his Constitution, and the Laws

of the United States which shall be made in Pursuance thereof . . . shall

be the supreme Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. 

13030 INDEPENDENT LIVING CENTER v. SHEWRY
Medi-Cal payments or benefits. We do not agree that this suit

fails for this threshold reason, and therefore reverse.

I.

A.

Under Title XIX of the Social Security Act, 42 U.S.C.

§ 1396 et seq. (the “Medicaid Act”), the federal government

provides funds to participating states to “enabl[e] each State,

as far as practicable . . . to furnish [ ] medical assistance on

behalf of families with dependent children and of aged, blind,

or disabled individuals, whose income and resources are

insufficient to meet the costs of necessary medical services[.]”

42 U.S.C. § 1396. Medicaid is a cooperative federal-state program, enacted by Congress pursuant to its powers under the

Spending Clause, see U.S. CONST. art. I, § 8, cl. 1, that “ ‘directs federal funding to states to assist them in providing medical assistance to low-income individuals.’ ” Ball v. Rodgers,

492 F.3d 1094, 1098 (9th Cir. 2007) (quoting Katie A. v. Los

Angeles County, 481 F.3d 1150, 1153-54 (9th Cir. 2007)). To

receive federal funds, states are required to administer their

programs in compliance with individual “State plans for medical assistance” approved by the federal Secretary of Health

and Human Services. 42 U.S.C. § 1396. The Act sets forth

detailed requirements for state plans, see id. § 1396a(a)(1)-

(71), including the specific provision at issue in this appeal.

Under that provision, § 1396a(a)(30)(A) (“Section 30(A)”),

a state plan must: 

provide such methods and procedures relating to . . .

the payment for[ ] care and services . . . as may be

necessary . . . to assure that payments are (consistent

with efficiency, economy, and quality of care and are

sufficient to enlist enough providers so that care and

services are available under the plan at least to the

INDEPENDENT LIVING CENTER v. SHEWRY 13031
extent that such care and services are available to the

general (population in the geographic area[.]

That is, a state plan must establish reimbursement rates for

health care providers that are both consistent with highquality medical care (the “quality of care provision”) and sufficient to enlist enough providers to ensure that medical services are generally available to Medicaid recipients (the

“access to care provision”). See generally Orthopaedic Hosp.

v. Belshe, 103 F.3d 1491 (9th Cir. 1997).

B.

California Assembly Bill X3 5 (“AB 5”), enacted on February 16, 2008, during a special session convened by the Governor to address the state’s budget deficit, reduces payments to

medical providers participating in the state’s Medi-Cal program by ten percent. Section 14 of AB 5 instructs the Director

of the Department of Health Care Services, the state agency

responsible for administering the Medi-Cal program, to

reduce payments to physicians, dentists, pharmacies, adult

day health care centers, clinics, health systems and other providers participating in Medi-Cal’s fee-for-service program by

ten percent. See CAL. WELF. & INST. CODE § 14105.19 (2008).

Section 14 also reduces payments to managed health care

plans under contract with the Department by the “actuarial

equivalent” of ten percent. Id. Section 15 of AB 5 instructs

the Director to reduce payments for inpatient services provided by acute care hospitals not under contract with the

Department by ten percent. See id. § 14166.245. All of these

cuts were scheduled to take effect July 1, 2008. 

ILC filed this suit in California state court seeking to enjoin

implementation of AB 5 on April 22, 2008, maintaining that

the ten-percent rate reduction violates both the “quality of

care” and “access to care” provisions of § 30(A) and is therefore invalid under the federal Constitution’s Supremacy

Clause, as it conflicts with governing federal law. The com13032 INDEPENDENT LIVING CENTER v. SHEWRY
plaint alleged that even prior to passage of AB 5, a substantial

percentage of medical care providers — 45% of primary care

providers and 50% of specialists — were unwilling to participate in the Medi-Cal program due to low reimbursement

rates; that 90% of dentists refused to accept Medi-Cal

patients; and that Medi-Cal’s reimbursement rates for prescription drugs allowed pharmacies to “uniformly earn less

than a 10% net profit.” By further reducing already-low reimbursement rates, ILC argued, AB 5 would drive even more

primary care physicians, specialists, dentists, and pharmacies

out of the Medi-Cal program and force existing providers to

reduce services. As a result, ILC contended, Medi-Cal recipients would be “denied quality medical services and access to

quality medical services,” in violation of § 30(A). ILC also

maintained that nothing in the legislative history of AB 5

demonstrated that the legislature had considered whether

reduced payments would be consistent with efficiency, economy, and quality of care, or whether such payments would be

sufficient to enlist an adequate network of health care providers. Rather, the sole purpose cited in the legislation was to

“address[ ] the fiscal emergency declared by the Governor”

and “implement cost containment measures affecting health

services, at the earliest possible time.” ILC therefore

requested a peremptory writ of mandate or injunction to prevent the Department of Health Care Services3

 and its Director,

Sandra Shewry (“the Director”), from implementing AB 5.4

C.

The state defendants removed the suit to federal court,

where ILC filed a motion for preliminary injunction. The dis3

ILC voluntarily dismissed the Department from suit on June 1, 2008,

leaving the Director as the sole defendant. 

4

ILC also alleged in its complaint that the ten-percent rate reduction

both violated and was preempted by the Americans with Disabilities Act

of 1990 (“ADA”), 42 U.S.C. § 12181 et seq. ILC voluntarily dismissed

these claims without prejudice. 

INDEPENDENT LIVING CENTER v. SHEWRY 13033
trict court denied relief, holding that although it was “acutely

cognizant of the potential adverse consequences of the ten

percent rate reduction,” ILC had “no likelihood of succeeding

on the merits” because they “do not have any federal rights

under § 30(A).”

In reaching this conclusion, the district court relied heavily

on this court’s decision in Sanchez v. Johnson, which held

that § 30(A) does not “create an individual right that either

Medicaid recipients or providers would be able to enforce

under [42 U.S.C.] § 1983.” 416 F.3d 1051, 1062 (9th Cir.

2005). Although the district court acknowledged that ILC in

this case filed suit under 28 U.S.C. § 1331 and the Supremacy

Clause rather than under § 1983, the court viewed this as a

distinction without a difference, reasoning that the Supremacy

Clause — like § 30(A) — “ ‘is not a source of any federal

rights.’ ” Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103, 107 (1989) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979)). In the absence

of any “right,” the district court concluded, ILC almost surely

had failed to state a claim for injunctive relief. 

In so ruling, the district court rebuffed ILC’s argument that

it was entitled to seek purely injunctive relief — which is all

it is seeking — on the basis of federal preemption under the

doctrine recognized in Shaw v. Delta Air Lines, Inc., 463 U.S.

85 (1983). Shaw held that “[a] plaintiff who seeks injunctive

relief from state regulation, on the ground that such regulation

is pre-empted by a federal statute which, by virtue of the

Supremacy Clause . . . , must prevail, thus presents a federal

question which the federal courts have jurisdiction under 28

U.S.C. § 1331 to resolve.” Id. at 96 n.14. The district court

held Shaw and its progeny — which, as we shall see, are

legion — inapplicable to ILC’s claims, holding that Shaw preemption claims have been permitted in only three “circumstances”: (1) “where the plaintiff claims that a state law

requires him to act in violation of federal law;” (2) “where the

plaintiff contends that his conduct will be restricted by a state

13034 INDEPENDENT LIVING CENTER v. SHEWRY
law that is preempted by federal law;” and (3) “where state

law interferes with federally created rights.” The court concluded that ILC’s claims did not fall under any of these three

categories, as “AB 5 neither compels nor restricts petitioners

own conduct” and “§ 30(A) does not give rise to a federally

created right.” ILC’s claims thus fell outside the Shaw

Supremacy Clause doctrine, rendering its probability of success on the merits “low, if not wholly lacking.” 

ILC immediately sought emergency relief in this court. We

granted ILC’s motion to expedite oral argument, but denied

the balance of its emergency motion. We heard argument on

July 11, 2008, and issued an order the same day reversing the

district court’s decision and remanding for consideration of

the merits of ILC’s motion for preliminary injunction.5 This

opinion more fully sets forth the rationale for our July 11

order.

II.

We review a district court’s denial of a preliminary injunction for abuse of discretion. The Lands Council v. McNair,

___ F.3d ___, 2008 WL 2640001, at *3 (9th Cir. 2008) (en

banc). “A district court abuses its discretion in denying a

request for a preliminary injunction if it ‘base[s] its decision

on an erroneous legal standard or clearly erroneous findings

of facts.’ ” Id. (quoting Earth Island Inst. v. U.S. Forest Serv.,

442 F.3d 1147, 1156 (9th Cir. 2006)) (alteration in original).

We therefore review the district court’s legal rulings de novo

and its findings of fact for clear error. Id.; see also Perfect 10,

Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1157 (9th Cir.

2007). 

5The district court heard argument on the merits of ILC’s motion for a

preliminary injunction on August 1, 2008, and subsequently entered an

order granting ILC’s motion in part. See Indep. Living Ctr. v. Shewry, No.

CV 08-3315 (C.D. Cal. Aug. 18, 2008), appeal filed, No. 08-56422 (9th

Cir. 2008). 

INDEPENDENT LIVING CENTER v. SHEWRY 13035
[1] In this case, the district court denied ILC’s motion for

a preliminary injunction based solely on its legal ruling that

ILC could not bring suit under the Shaw Supremacy Clause

doctrine. The only issue before this court is thus whether ILC

may maintain a valid cause of action to enjoin implementation

of AB 5 on the basis of federal preemption.

A.

[2] The Supreme Court has repeatedly entertained claims

for injunctive relief based on federal preemption, without

requiring that the standards for bringing suit under § 1983 be

met, and without intimating that such claims must fit into one

of three categories or “circumstances” in order to be cognizable. In City of Burbank v. Lockheed Air Terminal, Inc., 411

U.S. 624 (1973), for example, the Court enjoined a city ordinance prohibiting jet aircraft from taking off between 11 p.m.

and 7 a.m. Id. at 625-26. Plaintiffs, the owner and operator of

a private airport, filed suit under the Supremacy Clause, arguing that the Federal Aviation Act preempted the city’s ordinance. Id. at 626-27. As the Court noted, the Act permitted

the federal government “ ‘to possess and exercise complete

and exclusive national sovereignty in the airspace of the

United States,’ ” id. at 626-27 (quoting 49 U.S.C. § 1508(a)),

displacing both state and local regulation of airspace and —

presumably — any private “right” to occupy airspace at a

given time or place. Without questioning plaintiffs’ authority

to bring suit, the Court proceeded directly to the merits of

their claim for injunctive relief, holding the city’s ordinance

preempted under the Supremacy Clause. See id. at 633, 640.

[3] In Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978),

the Court proceeded along much the same path. Ray involved

a claim for injunctive relief brought by the operators of an oil

refinery and tanker vessels, who argued that the State of

Washington’s Tanker Law, which regulated the design, size,

and movement of oil tankers in Puget Sound, was preempted

by the federal Ports and Waterways Safety Act (PWSA). Id.

13036 INDEPENDENT LIVING CENTER v. SHEWRY
at 154-56. Without comment on plaintiffs’ authority to bring

suit under the Supremacy Clause, the Court once again proceeded straight to the preemption analysis. See id. at 157.

Indeed, none of the Court’s seminal preemption cases casts

any doubt on the presumptive availability of declaratory and

injunctive relief under the Supremacy Clause; to the contrary,

the Court has consistently assumed — without comment —

that the Supremacy Clause provides a cause of action to

enjoin implementation of allegedly unlawful state legislation.

See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88

(1992); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983); Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); see also

RICHARD H. FALLON, DANIEL J. MELTZER, & DAVID L. SHAPIRO,

HART & WECHSLER’S THE FEDERAL COURTS & THE FEDERAL

SYSTEM 903 (5th ed. 2003) (describing “the rule that there is

an implied right of action to enjoin state or local regulation

that is preempted by a federal statutory or constitutional provision” as “well-established”). 

[4] Perhaps the most well-known in this line of cases is

Shaw v. Delta Air Lines, Inc. Shaw involved the claims of

several large employers, who brought suit against the Acting

Commissioner of the New York State Division of Human

Rights, arguing that the State’s Human Rights and Disability

Benefits Laws — which required employers to treat pregnancy no differently than any other non-occupational disability — were preempted by the federal Employee Retirement

Income Security Act (“ERISA”). 463 U.S. at 92. ERISA does

not confer any express cause of action on employers to challenge state benefits laws in federal court,6

 but the Court —

6Section 502(a) of the Act expressly allows participants, beneficiaries,

and fiduciaries of a covered employee benefits plan, as well as the Secretary of Labor, to maintain a cause of action under ERISA. See 29 U.S.C.

§ 1132(a). The same provision, however, is silent as to employers, and has

generally been interpreted to mean that an employer cannot maintain an

action directly under ERISA. See, e.g., DeMarco v. C & L Masonry, Inc.,

INDEPENDENT LIVING CENTER v. SHEWRY 13037
much as it had in City of Burbank and Ray — reached the

merits of the preemption claims anyway, holding that the state

legislation was preempted only insofar as it prohibited practices that were otherwise lawful under ERISA. Id. at 108-09.

In an oft-cited footnote, the Court emphasized that its decision

in Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1 (1983), decided the same day, “does not call

into question the lower courts’ jurisdiction to decide these

cases.”7 463 U.S. at 96 n.14. Rather, the Court reaffirmed the

general rule that a plaintiff seeking to enjoin state law based

on federal preemption maintains a valid federal cause of

action. As the Court explained, 

It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.[8

] A plaintiff who seeks

891 F.2d 1236, 1240-41 (6th Cir. 1989); Tuvia Convalescent Ctr., Inc. v.

Nat’l Union of Hosp. & Health Care Employees, 717 F.2d 726, 729-30 (2d

Cir. 1983). But see Associated Builders & Contractors v. Carpenters

Vacation & Holiday Trust Fund, 700 F.2d 1269, 1278 (9th Cir. 1983)

(allowing suits by employers in narrow circumstances). 

7Franchise Tax Board applied the “well-pleaded complaint rule” to hold

that federal courts lacked jurisdiction to hear cases in which a defendant

asserted ERISA preemption as a defense to an action brought by state tax

authorities to enforce its levies against funds held in ERISA-covered

employee benefit plans. 463 U.S. at 28. Shaw distinguished Franchise Tax

Board by noting that the Tax Board sought a declaration that state laws

were not preempted, whereas the employers in Shaw presented an affirmative claim that the state laws at issue were preempted. See Shaw, 463 U.S.

at 96 n.14. 

8Although Shaw utilized the term “federal rights,” it did so before that

term had taken on the added significance attributed to it in more recent

cases such as Gonzaga University v. Doe, 536 U.S. 273 (2002), discussed

below. Shaw’s description of ERISA makes clear that the Court did not

view the statute as creating any substantive “rights” in employers. To the

contrary, the Court described ERISA as “a comprehensive statute designed

to promote the interests of employees and their beneficiaries in employee

benefit plans,” 463 U.S. at 90 (emphasis added), and noted that the statute

itself “does not mandate that employers provide any particular benefits,”

id. at 91. 

13038 INDEPENDENT LIVING CENTER v. SHEWRY
injunctive relief from state regulation, on the ground

that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the

Constitution, must prevail, thus presents a federal

question which the federal courts have jurisdiction

under 28 U.S.C. § 1331 to resolve. 

Id. (internal citations omitted). The Court concluded by noting

that it “frequently has resolved pre-emption disputes in a similar jurisdictional posture,” citing, inter alia, Ray and Florida

Lime & Avocado Growers. Id. Thus, Shaw did not give rise

to some unique line of “Shaw preemption” cases, but merely

reaffirmed the traditional rule that injunctive relief is presumptively available in federal court to enjoin state officers

from implementing a law allegedly preempted under the

Supremacy Clause.9See Lawrence County v. Lead-Deadwood

Sch. Dist. No. 40-1, 469 U.S. 256, 259 n.6 (1985) (describing

Shaw as “reaffirming the general rule” that a plaintiff asserting preemption under the Supremacy Clause has stated a federal claim for injunctive relief).

B.

[5] Contrary to the district court’s conclusion that “Shaw

preemption claims” have been permitted in only three “circumstances,” we know of no authority limiting Shaw in this

manner, nor has the Director cited any. In fact, the Supreme

Court recently reaffirmed Shaw’s holding, maintaining that it

had “no doubt” as to the authority of private parties to seek

9

Indeed, Shaw itself traced the roots of the doctrine to Ex parte Young,

209 U.S. 123 (1908), decided seventy-five years earlier. See 463 U.S. at

96 n.14. In Young, the Court found “ample justification” in the case law

to support its conclusion that “individuals who, as officers of the state, are

clothed with some duty in regard to the enforcement of the laws of the

state, and who threaten and are about to commence proceedings . . . to

enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such

action.” 209 U.S. at 155-56. 

INDEPENDENT LIVING CENTER v. SHEWRY 13039
injunctive relief on the basis of federal preemption under 28

U.S.C. § 1331 and the Supremacy Clause. See Verizon Md.

Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642-43 (2002). 

Nor are we certain on what grounds the district court concluded that ILC lacked a valid cause of action in this case.

The first two of the district court’s three “circumstances” —

whether the challenged statute “restricts” or “compels” petitioners’ own conduct — appear to reflect traditional standing

doctrine, which requires a litigant to “demonstrate that it has

suffered a concrete and particularized injury that is either

actual or imminent, that the injury is fairly traceable to the

defendant, and that it is likely that a favorable decision will

redress that injury.” Massachusetts v. E.P.A., 127 S. Ct. 1438,

1453 (2007). We address ILC’s standing to bring suit separately below, as that inquiry raises questions apart from

whether the Supremacy Clause provides a valid cause of

action to seek injunctive relief on the basis of federal preemption. 

The parties have proceeded on the assumption that the district court denied relief because ILC lacked any judicially

enforceable “rights” under the federal statute.10 The Director

10As noted above, the district court also concluded that the Supremacy

Clause itself does not give rise to any federal “right” to legal relief. In

reaching this conclusion, however, the district court relied on a series of

cases holding that the Supremacy Clause does not give rise to rights

enforceable under § 1983, an altogether separate remedial scheme. See

Golden State Transit Corp., 493 U.S. at 107-08 (“Given the variety of situations in which preemption claims may be asserted, in state court and in

federal court, it would obviously be incorrect to assume that a federal right

of action pursuant to § 1983 exists every time a federal rule of law preempts state regulatory authority. Conversely, the fact that a federal statute

has preempted certain state action does not preclude the possibility that the

same federal statute may create a federal right for which § 1983 provides

a remedy.” (emphasis added)); Chapman, 441 U.S. at 612-15 (holding that

the Supremacy Clause “is not a source of any federal rights” falling under

28 U.S.C. § 1343(3), the jurisdictional counterpart to § 1983). We explore

the distinction between claims for relief under § 1983 and claims for

injunctive relief on the basis of federal preemption more fully in Part B3 below. 

13040 INDEPENDENT LIVING CENTER v. SHEWRY
specifically urges this court to deny ILC relief “because

[§ 30(A)] does not confer a private right of enforcement upon

petitioners, which is the necessary predicate to seeking relief

under the Supremacy Clause.” Were we to accept it, this argument would work a fundamental change in Supremacy Clause

jurisprudence. We decline to do so, and thus join several other

circuits in holding that a plaintiff seeking injunctive relief

under the Supremacy Clause on the basis of federal preemption need not assert a federally created “right,” in the sense

that term has been recently used in suits brought under

§ 1983, but need only satisfy traditional standing requirements.

1.

[6] Although the Director asserts that the express conferral

of a “private right of enforcement” on petitioners is a “necessary predicate” to a claim for injunctive relief under the

Supremacy Clause, the well-established rule in both this court

and in other circuits is precisely the opposite. In Bud Antle,

Inc. v. Barbosa, 45 F.3d 1261 (9th Cir. 1994), we addressed

a claim for injunctive relief brought by a large agricultural

employer, who sought to enjoin the California Agricultural

Relations Board (ALRB) from adjudicating various unfair

labor practice charges. Id. at 1264. The employer argued that

the ALRB proceedings were preempted by the National Labor

Relations Act (NLRA), and were therefore invalid. Id. We

held that a private party may bring an action in a federal district court seeking to enjoin allegedly unlawful state conduct,

noting the “general rule that a private party may seek declaratory and injunctive relief against the enforcement of a state

statutory scheme on the ground of federal preemption.” Id. at

1269-71 (citing Shaw). We reached this conclusion “[e]ven in

the absence of an explicit statutory provision establishing a

cause of action,” id. at 1269, and regardless of whether the

NLRA conferred a federal “right” on employers, see id. at

1271 n.13 (finding it unnecessary to apply the four-factor test

set forth in Cort v. Ash, 422 U.S. 66 (1975)).

INDEPENDENT LIVING CENTER v. SHEWRY 13041
Our holding in Bud Antle is consistent with established

practice in the other circuits, which have universally affirmed

the right of private parties to seek injunctive relief under the

Supremacy Clause regardless of whether the allegedly preemptive statute confers any federal “right” or cause of action.

As the Tenth Circuit explained, 

A federal statutory right or right of action is not

required where a party seeks to enjoin the enforcement of a regulation on the grounds that the local

ordinance is preempted by federal law. A party may

bring a claim under the Supremacy Clause that a

local enactment is preempted even if the federal law

at issue does not create a private right of action. 

Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th

Cir. 2004) (internal citations omitted); see also Local Union

No. 12004 v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004)

(holding that “in suits against state officials for declaratory

and injunctive relief, a plaintiff may invoke the jurisdiction of

the federal courts by asserting a claim of preemption, even

absent an explicit statutory cause of action”); Ill. Ass’n of

Mortgage Brokers v. Office of Banks & Real Estate, 308 F.3d

762, 765 (7th Cir. 2002); St. Thomas - St. John Hotel & Tourism Ass’n v. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000)

(holding that “a state or territorial law can be unenforceable

as preempted by federal law even when the federal law

secures no individual substantive rights for the party arguing

preemption”); Village of Westfield v. Welch’s, 170 F.3d 116,

124 n.4 (2d Cir. 1999) (holding that a cause of action under

the Supremacy Clause “do[es] not depend on the existence of

a private right of action under the [preempting statute]”); Burgio & Campofelice, Inc. v. N.Y. State Dep’t of Labor, 107

F.3d 1000, 1005-07 (2nd Cir. 1997) (holding that plaintiff

could assert ERISA preemption under the Supremacy Clause,

even though it was “beyond dispute” that plaintiff fell outside

ERISA’s express enforcement provisions); First Nat’l Bank of

E. Ark. v. Taylor, 907 F.2d 775, 776 n.3 (8th Cir. 1990).

13042 INDEPENDENT LIVING CENTER v. SHEWRY
2.

[7] The Director acknowledges these general principles but

argues for a different result in this case, based on the specific

statutory provision at issue. The Director provides little, if

any, justification for treating a claim of preemption under a

federal statute passed pursuant to Congress’s spending power

differently from a claim of preemption under any of the federal statutes discussed above. But even if she had, this argument has also been flatly rejected by the Supreme Court and

the other circuits that have addressed the question.

In Pharmaceutical Research & Manufacturers of America

(“PhRMA”) v. Concannon, 249 F.3d 66 (1st Cir. 2001), aff’d

sub nom. PhRMA v. Walsh, 538 U.S. 644 (2003), a pharmaceutical manufacturers trade group challenged a Maine statute

designed to lower prescription drug prices for low-income

residents by essentially requiring manufacturers to issue

rebates.11 Id. at 71-72. PhRMA argued, inter alia, that

Maine’s statute was preempted by the federal Medicaid Act

under the Supremacy Clause, and moved for injunctive relief

to prevent implementation of the program. Id. at 72. In

response, the defendants contended that PhRMA could not

bring suit in this manner, as the Medicaid Act was not

intended to confer any private right on pharmaceutical manufacturers. Id. at 73. The First Circuit rejected the defendants’

argument, explaining that “PhRMA has not asserted an action

to enforce rights under the Medicaid statute . . . but rather a

preemption-based challenge under the Supremacy Clause. In

this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”

Id. Citing a decision from the Third Circuit, the court noted:

11To ensure pharmaceutical companies’ participation in the program,

the statute subjected all drugs produced by manufacturers refusing to offer

rebates to “prior authorization requirements,” meaning that the drug could

not be prescribed to a Medicaid beneficiary unless the state Medicaid

administrator specifically approved the prescription. See id. at 71-72. 

INDEPENDENT LIVING CENTER v. SHEWRY 13043
We know of no governing authority to the effect

that the federal statutory provision which allegedly

preempts enforcement of local legislation by conflict

must confer a right on the party that argues in favor

of preemption. On the contrary, a state or territorial

law can be unenforceable as preempted by federal

law even when the federal law secures no individual

substantive rights for the party arguing preemption.

Id. (quoting St. Thomas - St. John Hotel & Tourism Ass’n,

218 F.3d at 241). The court thus concluded — in stark contrast to the Director’s position in this case — that “regardless

of whether the Medicaid statute’s relevant provisions were

designed to benefit PhRMA, PhRMA can invoke the statute’s

preemptive force.” Id. 

Although the First Circuit permitted PhRMA to bring suit,

the court ultimately held that Maine’s statute was not preempted by federal law because there was no conflict between

its requirements and those of the Medicaid Act. See id. at 74-

79. PhRMA successfully petitioned the Supreme Court for

certiorari, and the state defendants renewed their claim that

PhRMA lacked any federal right to bring suit. Like the Director in our case, defendants argued that “[the Supremacy

Clause] does not, by its own force, protect or regulate any

interests,” and that PhRMA must therefore “look to the allegedly preempting federal statute to find an interest to support

standing.” Brief for Respondents at 13-17, PhRMA v. Walsh,

538 U.S. 644 (2003) (No. 01-188). PhRMA took issue with

this claim in its reply brief, noting that the Supreme Court and

the lower federal courts had “decided innumerable cases in

which parties claiming to be injured by a state law have challenged it as preempted by federal law” and that the Court had

never held “that a party directly claiming a Supremacy Clause

violation must demonstrate an enforceable right under the preemptive federal law.” Reply Brief of Petitioner at 2-3,

PhRMA v. Walsh, 538 U.S. 644 (2003) (No. 01-188). 

13044 INDEPENDENT LIVING CENTER v. SHEWRY
Not acceding to the defendants’ argument that PhRMA

lacked a cause of action under the Supremacy Clause, seven

Justices reached the merits of PhRMA’s claim for injunctive

relief. See PhRMA v. Walsh, 538 U.S. at 668 (Stevens, J.,

joined by Souter, J., and Ginsburg, J.); id. at 671 (Breyer, J.);

id. at 684 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J.). Only Justices Scalia and Thomas would have denied

PhRMA’s ability to bring suit for preemption, although they

ultimately concurred in the Court’s judgment that Maine’s

statute was likely not preempted by the federal Medicaid Act.

See id. at 675 (Scalia, J., concurring in judgment); id. at 675-

83 (Thomas, J., concurring in judgment).12 Faced with arguments similar to those presented by the Director in this case,

the Court necessarily assumed — albeit implicitly — that a

private party seeking to enjoin implementation of a state law

allegedly preempted by the federal Medicaid Act may bring

suit for injunctive relief directly under the Supremacy Clause.

Although the Supreme Court’s decision in Walsh affirmed

PhRMA’s ability to bring suit under the Supremacy Clause

sub silentio, two circuits have expressly relied on Walsh to

permit suits for injunctive relief. In PhRMA v. Thompson, 362

F.3d 817 (D.C. Cir. 2004), the D.C. Circuit addressed a similar challenge to Michigan’s “Best Practices Initiative,” which

was designed — much like Maine’s statute — to provide lowcost prescription drug coverage to state residents. Id. at 819.

Citing Justice Thomas’s opinion in Walsh, the defendants

argued that there were “serious questions as to whether third

parties may sue to enforce Spending Clause legislation —

12Justices Scalia would have held that PhRMA could not bring suit,

because “the remedy for the State’s failure to comply with the obligations

it has agreed to undertake under the Medicaid Act is set forth in the Act

itself: termination of funding.” See id. at 675 (Scalia, J., concurring in

judgment). Justice Thomas argued that the broad discretion conferred by

statute on the Secretary of Health and Human Services defeated any preemption claim, and doubted whether “Spending Clause legislation can be

enforced by third parties in the absence of a private right of action.” See

id. at 675-83 (Thomas, J., concurring in judgment). 

INDEPENDENT LIVING CENTER v. SHEWRY 13045
through pre-emption or otherwise.” Id. at 819 n.3. The D.C.

Circuit rejected defendants’ argument, holding that by reaching the merits of PhRMA’s preemption claim in Walsh, the

Supreme Court implicitly affirmed PhRMA’s authority to

bring suit for injunctive relief under the Supremacy Clause.

Id.

In Planned Parenthood of Houston v. Sanchez, 403 F.3d

324 (5th Cir. 2005), the Fifth Circuit relied in part on the

Supreme Court’s decision in Walsh to permit a claim for

injunctive relief under the federal Social Security and Public

Health Services Acts. Id. at 331-32. Several local branches of

Planned Parenthood claimed that a Texas statute known as

“Rider 8,” which restricted the distribution of public funds for

family planning services to contractors who pledged not to

perform, or to contract with any individual or entity that performed, any elective abortion procedures, was preempted by

federal law.13 Id. at 328. Plaintiffs argued, inter alia, that the

state statute violated the Supremacy Clause by imposing eligibility requirements that were inconsistent with those imposed

under the federal funding statutes. Id.

In assessing plaintiff’s claims for injunctive relief, the Fifth

Circuit began by noting that “[i]t is well-established that the

federal courts have jurisdiction under 28 U.S.C. § 1331 over

a preemption claim seeking injunctive and declaratory relief.”

Id. at 331 (citing Shaw). The court then cited Walsh and

Thompson for the principle that “asserting the preemptive

force of federal Spending Clause legislation” itself states a

claim for relief, even if “[Planned Parenthood was] not seeking to vindicate any right or to enforce any duty running to

them.” Id. at 331-32. After a thorough canvassing of preemption cases, see id. at 331-34 & nn. 25, 27-28, 37, 46-47, the

court had “little difficulty . . . holding that [Planned Parent13Texas accepted federal funds for family planning services by voluntarily participating in a number of federal programs, including the Public

Health Services Act and the Social Security Act. Id. at 327. 

13046 INDEPENDENT LIVING CENTER v. SHEWRY
hood had] an implied right of action to assert a preemption

claim seeking injunctive and declaratory relief.” Id. at 335. 

[8] We find the reasoning of the D.C. and Fifth Circuits persuasive.14 For more than a century, federal courts have entertained suits seeking to enjoin state officials from

implementing state legislation allegedly preempted by federal

law, and we see no reason to depart from the general rule in

this case, or in this category of cases. We therefore join several other circuits in holding that a party may seek injunctive

relief under the Supremacy Clause regardless of whether the

federal statute at issue confers any substantive rights on

would-be plaintiffs.

3.

[9] The reasoning adopted by the other circuits is also helpful in identifying the fundamental flaw with the Director’s

position. By maintaining that ILC cannot proceed unless it

can demonstrate that AB 5 interferes with some federally created right, the Director essentially asks us to apply the test for

determining whether a plaintiff may seek relief under 42

14The district court stated that ILC’s reliance on Concannon was misplaced because plaintiffs in that case had “established a concrete injury in

fact” — standing language, as we shall see — whereas “[h]ere, § 30(A)

does not give petitioners any right to Medi-Cal funds.” In fact, Concannon

expressly permitted PhRMA to bring suit for injunctive relief in the

absence of any statutory right to Medicaid funds. See 249 F.3d at 73. The

pharmaceutical manufacturers bringing suit in Concannon had no greater

“right” to Medicaid funds than the pharmacies and health care providers

in this case, and ILC has adequately alleged injury-in-fact. See Part II-C,

infra. 

Similarly, there is no viable distinction for present purposes between the

restrictions on Planned Parenthood’s activities imposed by the statute at

issue in Planned Parenthood v. Sanchez and the impact of AB 5 on the

Medi-Cal providers in this case. AB 5 allegedly prevents petitioners from

providing services to Medi-Cal beneficiaries unless they are willing to do

so at a financial loss, and thus assuredly “restricts” petitioners’ provision

of professional services. 

INDEPENDENT LIVING CENTER v. SHEWRY 13047
U.S.C. § 1983, which provides a remedy for “the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws.”

15 The Supreme Court has interpreted the text

of § 1983 to require a plaintiff to show the deprivation of “an

unambiguously conferred right” in order to support a cause of

action brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S.

273, 283 (2002). But both the Supreme Court and the courts

of appeal have consistently rejected attempts to extend this

analysis to claims for purely prospective injunctive relief

under the Supremacy Clause, rendering the “rights” requirement inapplicable to ILC’s claims in this case. 

The Eighth Circuit’s decision in Lankford v. Sherman, 451

F.3d 496 (8th Cir. 2006), is instructive. In response to severe

“budget constraints,” the Missouri state legislature amended

its state Medicaid plan to eliminate coverage for durable medical equipment (“DME”) for most categorically-needy Medicaid recipients. Id. at 500-01. Plaintiffs, a group of adult

Medicaid recipients, brought suit under both § 1983 and the

Supremacy Clause to enjoin state regulations implementing

the amendment, arguing that the cuts violated certain provisions of the federal Medicaid Act. Id. at 500-02. Like the

Director in our case, the defendant argued “that there is no

individualized federal right to reasonable Medicaid standards.” Id. at 507. The court agreed with the defendant as to

the § 1983 claim, holding that “[r]ather than focusing on an

individualized entitlement to medical services, the reasonablestandards provision [of the Medicaid Act] focuses on the

aggregate practices of the states in establishing reasonable

Medicaid services.” Id. at 509. The court noted, however, that

the § 1983 issue was not dispositive, as plaintiffs had also

15Section 1983 provides: “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State, . . . subjects, or

causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding

for redress . . . .” 42 U.S.C. § 1983. 

13048 INDEPENDENT LIVING CENTER v. SHEWRY
brought suit under the Supremacy Clause. “Preemption claims

are analyzed under a different test than section 1983 claims,

affording plaintiffs an alternative theory for relief when a

state law conflicts with a federal statute or regulation.” Id.

The lack of any federally created “right” under the Medicaid

Act was inconsequential to the Supremacy Clause analysis,

and plaintiffs’ preemption claim was remanded for consideration on the merits. Id. at 513.

The Fifth Circuit reached a similar conclusion in Planned

Parenthood v. Sanchez. As noted above, plaintiffs sought to

enjoin implementation of Texas’s Rider 8, which required

recipients of federal funds to cut all ties with any organization

performing elective abortions. Sanchez, 403 F.3d at 328.

Advancing the same arguments asserted by the Director in our

case, the Texas Department of Health contended that to seek

injunctive relief, “plaintiffs must meet the requirements for an

action under § 1983, as recently enunciated in Gonzaga University v. Doe,” namely, that the federal statutes at issue confer privately enforceable “rights.” Id. at 335. The Fifth Circuit

flatly rejected this argument, finding that it “mischaracterize[d]” Planned Parenthood’s claim: 

Appellees are not asking the courts to enforce their

“right” under § 1983 to secure enforcement of [the

Public Health Safety Act], as TDH asserts. Rather,

Appellees’ Supremacy Clause argument is fundamentally different: they argue that Rider 8 imposes

conditions on the receipt of federal funds that are

incompatible with [the Act]. Therefore, we need not

be concerned that the Supremacy Clause does not of

its own force create rights enforceable under § 1983.

Id. The court then noted that “Gonzaga, by its terms, applies

only to § 1983 claims. . . . The Supremacy Clause claim

advanced here . . . is not based on a claim of right under [the

Act], nor is it a claim for damages; it is a preemption claim.

The Gonzaga Court gave no indication that it intended to alter

INDEPENDENT LIVING CENTER v. SHEWRY 13049
its prior practice regarding such claims.” Id. The court therefore concluded that a claim of preemption under the Supremacy Clause “does not require a showing, as per Gonzaga, that

a § 1983 action would also be proper.” Id.; see also Local

Union No. 12004, 377 F.3d at 75-76 (distinguishing between

claims brought under § 1983 and claims for injunctive relief

under the Supremacy Clause); Qwest, 380 F.3d at 1266 & n.5

(same); Burgio & Campofelice, 107 F.3d at 1005-07 & n.2

(same). 

For the reasons identified by the Fifth Circuit in Planned

Parenthood v. Sanchez, the Director’s heavy reliance on our

decision in Sanchez v. Johnson, 416 F.3d 1051 (9th Cir.

2005), is misplaced. Johnson merely applied Gonzaga to a

claim seeking to enforce the substantive provisions of § 30(A)

of the Medicaid Act brought under § 1983. We held that the

quality of care and access provisions of § 30(A) do not give

rise to the type of unambiguously conferred “rights” required

under Gonzaga. See id. at 1055-60. But our decision in Johnson had nothing to say about a claim for injunctive relief

brought under the Supremacy Clause. 

[10] Indeed, even as the Supreme Court has tightened the

requirements for seeking damages under § 1983, it has consistently reaffirmed the availability of injunctive relief to prevent

state officials from implementing state legislation allegedly

preempted by federal law. In Green v. Mansour, 474 U.S. 64

(1985), two classes of plaintiffs alleged that the State of

Michigan’s method of calculating benefits under the federal

Aid to Families With Dependent Children (AFDC) program

violated federal law. Id. at 65. While the suits were pending

in federal district court, the State altered its program to comply with recent congressional amendments. Id. at 65-66.

These changes mooted plaintiffs’ claims for prospective

relief, since it was “undisputed that respondent’s calculations

thereafter have conformed to federal law.” Id. at 65. Plaintiffs

nonetheless sought “notice relief” and a declaration that

Michigan’s prior conduct violated federal law. Id.

13050 INDEPENDENT LIVING CENTER v. SHEWRY
The Court denied relief, holding that plaintiffs’ requests for

notice and declaratory relief constituted claims for retrospective damages and were thus barred by state sovereign immunity under the Eleventh Amendment. Id. at 71-74. All nine

justices agreed, however, that injunctive relief would have

been available under the Supremacy Clause if changes to the

state program had not mooted plaintiffs’ prospective claims.

See id. at 68; id. at 77 (Brennan, J., dissenting). Writing for

the majority, then-Justice Rehnquist noted that “the availability of prospective relief of the sort awarded in Ex parte Young

gives life to the Supremacy Clause. Remedies designed to end

a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that

law.” Id. at 68.

[11] The Director’s arguments fail to honor this distinction,

broadly asserting instead that because § 30(A) of the Medicaid Act does not confer any substantive “rights,” ILC is not

entitled to relief of any kind, whether prospective or retrospective. Green cautioned against conflating claims for prospective and retrospective relief in precisely this manner,

recognizing that a state’s interest in continuing to flout binding federal law is illegitimate. 474 U.S. at 68; see also Idaho

v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997) (“An allegation of an ongoing violation of federal law where the

requested relief is prospective is ordinarily sufficient” to seek

injunctive relief under Ex parte Young). We therefore adhere

to the general rule that injunctive relief is presumptively

available to remedy a state’s ongoing violation of federal law.

C.

[12] Because it held that ILC could not bring suit under the

Supremacy Clause, the district court did not technically reach

petitioners’ standing to bring suit. As noted above, however,

the first and second prongs of the district court’s Shaw analysis — which focused on whether AB 5 “restricts” or “compels” petitioners’ conduct — appear to reflect the traditional

INDEPENDENT LIVING CENTER v. SHEWRY 13051
requirement that a litigant demonstrate an injury-in-fact to

establish Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). On appeal, the Director

expressly “does not allege that the named Petitioners do not

have standing to bring this action on their own behalf,” but

rather argues simply that “Petitioners cannot state a claim for

relief under the Supremacy Clause.”

16 We nonetheless recognize our “independent obligation” to examine our own jurisdiction, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230-31 (1990), and therefore briefly address ILC’s Article III

standing.17

[13] To satisfy Article III standing requirements, a plaintiff

must demonstrate three elements: 

First, the plaintiff must have suffered an injury in

fact — an invasion of a legally protected interest

which is (a) concrete and particularized; and (b)

16Although the Director does not contest petitioners’ standing, she does

argue that the interests protected by § 30(A) are not judicially enforceable

because § 30(A) concerns “overall methodology” and “merely requires

states to consider various factors in setting reimbursement rates.” We

express no opinion regarding the correct interpretation of the substantive

provisions of § 30(A), as such arguments are properly addressed to the

merits of petitioners’ preemption claim. See Wilder v. Va. Hosp. Ass’n,

496 U.S. 498, 519 (1990) (“That [the statutory provision at issue] gives

the States substantial discretion in choosing among reasonable methods of

calculating rates may affect the standard under which a court reviews

whether the rates comply with the [statute], but it does not render the [statute] unenforceable by a court.”); Orthopaedic Hosp., 103 F.3d at 1496-

1500 (interpreting the substantive provisions of § 30(A)). 

17Unlike the Article III standing inquiry, whether ILC maintains prudential standing “is not a jurisdictional limitation on our review.” See Bd. of

Natural Res. v. Brown, 992 F.2d 937, 945-46 (9th Cir. 1993). By failing

to articulate any argument challenging ILC’s prudential standing, the

Director has waived that argument. Id. at 946; Greenwood v. F.A.A., 28

F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued

specifically and distinctly in a party’s opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a

claim . . . .” (internal citation omitted)). 

13052 INDEPENDENT LIVING CENTER v. SHEWRY
actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between

the injury and the conduct complained of — the

injury has to be fairly traceable to the challenged

action of the defendant, and not the result of the

independent action of some third party not before the

court. Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision. 

Lujan, 504 U.S. at 560-61 (internal citations and quotation

marks omitted). “The general rule applicable to federal court

suits with multiple plaintiffs is that once the court determines

that one of the plaintiffs has standing, it need not decide the

standing of the others.” Leonard v. Clark, 12 F.3d 885, 888

(9th Cir. 1993). In this case, we have no doubt that several of

the petitioners, at least, have standing to challenge the implementation of AB 5. 

[14] Petitioners include independent pharmacies and health

care providers participating in the State’s Medi-Cal program

that, according to their complaint, will be “directly injured, by

loss of gross income,” when the ten-percent rate reduction

takes effect. The Supreme Court “repeatedly has recognized

that such [direct economic] injuries establish the threshold

requirements” of Article III standing. Craig v. Boren, 429

U.S. 190, 194-95 (1976). Moreover, this injury is directly

traceable to the Director’s implementation of AB 5, and

would certainly be redressed by a favorable decision of this

court enjoining the ten-percent rate reduction. 

[15] Petitioners also include several individual Medi-Cal

beneficiaries, who “will be injured or put at risk of injury by

implementation of the 10% provider payments cuts” because

those cuts will reduce “quality services, and access to quality

services.” This injury, like the injury to medical providers discussed above, is the direct result of the Director’s implementation of AB 5, and would certainly be remedied by a decision

INDEPENDENT LIVING CENTER v. SHEWRY 13053
granting injunctive relief. Such an injury “to those individuals

most directly affected by the administration of [a state welfare] program” is sufficient to allow petitioners to seek

injunctive relief in federal court. Rosado v. Wyman, 397 U.S.

397, 420 (1970).

Conclusion

Under well-established law of the Supreme Court, this

court, and the other circuits, a private party may bring suit

under the Supremacy Clause to enjoin implementation of state

legislation allegedly preempted by federal law. In this case,

ILC alleges that the cuts mandated by AB 5 violate the substantive provisions of the federal Medicaid Act, and are therefore unlawful. They do not seek to enforce any substantive

“right” conferred by statute; instead, they argue that the cuts

mandated by AB 5 are themselves unenforceable, because

they exceed the scope of the State’s discretion under the Act

and violate federal standards. As AB 5 is causing injury to

one or more of the plaintiffs and the other requirements of

Article III standing are met, no more is required to allow this

suit to go forward. 

We express no opinion on the merits of ILC’s preemption

claim. Rather, we simply reaffirm over a century’s worth of

precedent and hold that ILC maintains a valid cause of action

under the Supremacy Clause to assert such a claim for injunctive relief. The district court’s opinion is therefore

REVERSED and REMANDED for further proceedings consistent with this opinion. 

13054 INDEPENDENT LIVING CENTER v. SHEWRY