U.S. Court of Appeals for the Second Circuit. Photo: ALM

Two judges on the U.S. Court of Appeals for the Second Circuit on Friday voiced their strong disagreement with the court’s 6-5 vote to deny an en banc rehearing of a decision that found the Child Welfare Act had created a privately enforceable right for some foster parents to sue states for costs related to child care.

In a pair of dissenting opinions, Judges Debra Ann Livingston and José Cabranes of the U.S. Court of Appeals for the Second Circuit said no such right existed and agreed with states that had argued that the ruling would strain resources and expose them to unnecessary litigation.

“The panel majority’s decision imposes these pernicious costs on our Circuit despite the fact that the right it identifies is not even fairly discernible, much less unambiguously manifest, in the text of the CWA. Congress simply did not create an individual right to foster care maintenance payments enforceable pursuant” to federal law, Livingston wrote in her dissent, joined by Cabranes and three other judges how favored rehearing before the full court.

A three-judge panel of the appeals court held in April that the act’s text and statutory structure set out a specific monetary entitlement for items such as food, clothing, shelter, daily supervision and school supplies. The ruling, entered April 19, tasked federal judges in New York, Connecticut and Vermont with setting the rates for compensation.

In so ruling, the Second Circuit entered a circuit split among appeals courts that have taken up the issue. The Sixth and Ninth Circuits have so far come down on the side of the Manhattan appellate court, with the Eighth Circuit as the sole appellate circuit holding the CWA does not provide a right to sue over benefits.

New York petitioned for rehearing, claiming that the ruling would impose significant burdens on state foster care systems. Connecticut also agreed with that analysis and joined a dozen other states in submitting an amicus brief to the appeals court.

Livingston noted that the “narrow vote by a bare majority” of active judges on the court did not mean that most agreed with the panel’s ruling.

“Because of our Circuit’s so-called “tradition” of declining en banc review, the fact that six members of our Court voted to decline review does not mean that they were convinced that the panel majority is correct,” she said.

Cabranes noted in his own dissent that the judges’ concerns ”now rest in the hands of our highest court.”

An attorney for New York State Citizens’ Coalition for Children, the foster care advocacy group that filed the suit, did not return a call seeking comment on the case. The office of Attorney General Letitia James, which defended the lawsuit, did not respond to a request for comment Friday.

The coalition is represented by Morrison & Foerster partners Grant Esposito and Brian Matsui.

James office is represented by Solicitor General Barbara D. Underwood, Solicitor General, Deputy Solicitor General Steven C. Wu and Assistant Solicitor General Caroline A. Olsen.

The case, out of the Eastern District of New York, is captioned New York State Citizens’ Coalition for Children v. Poole.