author: Justice Souter Justice Ginsburg,

text:
    HARTMAN et al. v. MOORE
    No. 04-1495.
    Argued January 10, 2006
    Decided April 26, 2006

      Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Dan Himmelfarb, Barbara L. Herwig, Matthew M. Collette, Stephanie R. Marcus, and Richard Montague.

      Patrick F. McCartan argued the cause for respondent. With him on the brief were Paul Michael Pohl and Christian G. Vergonis

        Richard Ruda and James I. Crowley filed a brief for the National League of Cities et al. as amici curiae urging reversal.

   Justice Souter

delivered the opinion of the Court.

This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven.

I

In the 1980’s, respondent William G. Moore, Jr., was the chief executive of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader for interpreting'multiple lines of text. Although REI had received some $50 million from the United States Postal Service to develop this technology for reading and sorting mail, the Postmaster General and other top officials of the Postal Service were urging mailers to use nine-digit zip codes (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail automatically by reading just that line.

Besides Moore, who obviously stood to gain financially from' the adoption of multiline technology, some Members of Congress and Government research officers had reservations about the Postal Service’s Zip + 4 policy and its intended reliance on single-line readers. Critics maligned single-line scanning technology, objected to the foreign sources of single-line scanners, decried the burden of remembering the four extra numbers, and echoed the conclusion reached by the United States Office of Technology Assessment, that use of the single-line scanners in preference to multiliners would cost the Postal Service $1 million a day in operational losses.

Moore built on this opposition to Zip + 4, by lobbying Members of Congress, testifying before congressional committees, and supporting a “Buy American” rider to the Postal Service’s 1985 appropriations bill. Notwithstanding alleged requests by the Postmaster General to be quiet, REI followed its agenda by hiring a public-relations firm, Gnau and Associates, Inc. (GAI), which one of the Postal Service’s governors, Peter Voss, had recommended.

The campaign succeeded, and in July 1985 the Postal Service made what it called a “mid-course correction” and embraced multiline technology. Brief for Respondent 4. But the change of heart did not extend to Moore and REI, for the Service’s ensuing order of multiline equipment, valued somewhere between $250 million and $400 million, went to a competing firm.

Not only did REI lose out on the contract, but Moore and REI were soon entangled in two investigations by Postal Service inspectors. The first looked into the purported payment of kickbacks by GAI to Governor Voss for Voss’s recommendations of GAI’s services, as in the case of REI; the second sought to document REI’s possibly improper role in the search for a new Postmaster General. Notwithstanding very limited evidence linking Moore and REI to any wrongdoing, an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury indicted Moore, REI, and REFs vice president. At the close of the Government’s case, after six weeks of trial, however, the District Court concluded that there was a “complete lack of direct evidence” connecting the defendants to any of the criminal wrongdoing alleged, and it granted the REI defendants’ motion for judgment of acquittal. United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (DC 1989).

Moore then brought an action in the Northern District of Texas for civil liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), against the prosecutor and the five postal inspectors who are petitioners here (a sixth having died). His complaint raised five causes of action, only one of which is relevant here, the claim that the prosecutor and the inspectors had • engineered his criminal prosecution in retaliation for criticism of the Postal Service, thus violating the First Amendment. In the course of these proceedings Moore has argued, among other things, that the postal inspectors launched a criminal investigation against him well before they had any inkling of either of the two schemes mentioned above, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney’s Office to have him indicted. Moore also sought recovery from the United States under the Federal Tort Claims Act (FTCA). The District Court dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse-of-process claim against the inspectors. Moore v. Valder, Civil Action No. 3:91-CV-2491-G (ND Tex., Sept. 21, 1992).

The claims remaining were transferred to the District Court for the District of Columbia, where Moore’s suit was dismissed in its entirety, Civ. Nos. 92-2288 (NHJ), 93-0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals for the District of Columbia Circuit reinstate the retaliatory-prosecution claim. Moore v. Valder, 65 F. 3d 189 (1995). The District Court then permitted limited discovery on that matter so far as the inspectors were involved, but again dismissed the remaining charges against the United States and the prosecutor. Moore v. Valder, Civil Action No. 92-2288 (NHJ) et al., Record, Tab No. 32 (Memorandum Opinion, Feb. 5,1998). Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed. Moore v. United States, 213 F. 3d 705 (2000).

With the remainder of the case back in District Court, the inspectors moved for summary judgment, urging that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed. 388 F. 3d 871 (2004).

The Courts of Appeals have divided on the issue of requiring evidence of a lack of probable cause in 42 U. S. C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burden plaintiffs with the obligation to show its absence. See, e. g., Wood v. Kesler, 323 F. 3d 872, 883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260 (CA5 2002); Mozzochi v. Borden, 959 F. 2d 1174, 1179-1180 (CA2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e. g., Poole v. County of Otero, 271 F. 3d 955, 961 (CA10 2001); Haynesworth v. Miller, 820 F. 2d 1245, 1256-1257 (CADC 1987). We granted certiorari, 545 U. S. 1138 (2005), to resolve the Circuit split and now reverse.

II

Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574, 588, n. 10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”). Some official actions adverse to such a speaker might well be unexceptionable if taken on other grounds, but when non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution. See Crawford-El, supra, at 593; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283-284 (1977) (adverse action against government employee cannot be taken if it is in response to the employee’s “exercise of constitutionally protected First Amendment freedoms”). When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. See 403 U. S., at 397.

III

Despite a procedural history portending another Jarndyce v. Jarndyce, the issue before us is straightforward: whether a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges.

A

The inspectors argue on two fronts that absence of probable cause should be an essential element. Without such a requirement, they first say, the Bivens claim is too readily available. A plaintiff can afflict a public officer with disruption and expense by alleging nothing more, in practical terms, than action with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against. Brief for Petitioners 21-23; see also National Archives and Records Admin. v. Favish, 541 U. S. 157, 175 (2004) (allegations of government misconduct are “ ‘easy to allege and hard to disprove’”)- In the inspectors’ view, some “objective” burden must be imposed on these plaintiffs, simply to filter out the frivolous. The second argument complements the first, for the inspectors believe that the traditional tort of malicious prosecution tells us what the objective requirement should be. Brief for Petitioners 24-29. In an action for malicious prosecution after an acquittal, a plaintiff must show that the criminal action was begun without probable cause for charging the crime in the first place; the inspectors see retaliatory prosecution under Bivens as a close cousin of malicious prosecution under common law, making the latter’s no-probable-cause requirement a natural feature of the constitutional tort. See Heck v. Humphrey, 512 U. S. 477, 483-485, and 484, n. 4 (1994).

B

In fact, we think there is a fair argument for what the inspectors call an “objective” fact requirement in this type of case, but the nub of that argument differs from the two they set out, which we will deal with only briefly. As for the invitation to rely on common-law parallels, we certainly are ready to look at the elements of common-law torts when we think about elements of actions for constitutional violations, see Carey v. Piphus, 435 U. S. 247, 258 (1978), but the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts. See, e. g., Albright v. Oliver, 510 U. S. 266, 277, n. 1 (1994) (Ginsburg, J., concurring); Bivens, supra, at 394; cf. Baker v. McCollan, 443 U. S. 137, 146 (1979). And in this instance we could debate whether the closer common-law analog to retaliatory prosecution is malicious prosecution (with its no-probable-cause element) or abuse of process (without it). Compare Heck, 512 U. S., at 483-485, and 484, n. 4, with id., at 493-496 (Souter, J., concurring in judgment).

Nor is there much leverage in the fear that without a filter to screen out claims federal prosecutors and federal courts will be unduly put upon by the volume of litigation. The basic concern is fair enough, but the slate is not blank. Over the past 25 years fewer than two dozen damages actions for retaliatory prosecution under Bivens or §1983 have come squarely before the Federal Courts of Appeals, and there is no disproportion of those cases in Circuits that do not require showing an absence of probable cause.

C

It is, instead, the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors. Although a Bivens (or § 1983) plaintiff must show a causal connection between a defendant’s retaliatory animus and subsequent injury in any sort of retaliation action, see Crawford-El, 523 U. S., at 593; Mt. Healthy, 429 U. S., at 285-287, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, with causation in a case like this one.

Take the example of a public employee’s claim that he was fired for speech criticizing the government. See, e. g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 566-567 (1968) (allegation that a school board dismissed a teacher for writing a public letter critical of the board’s financial administration). While the employee plaintiff obviously must plead and prove adverse official action in retaliation for making the statements, our discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances. Cf. Crawford-El, supra, at 593 (“[A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation”). The cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other. See, e. g., Mt. Healthy, supra, at 287; see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, n. 21 (1977). It is clear, moreover, that the causation is understood to be but-for causation, without which the adverse action would not have been taken; we say that upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy, 429 U. S., at 287. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El, supra, at 593; Mt. Healthy, supra, at 285-286.

When the claimed retaliation for protected conduct is a criminal charge, however, a constitutional tort action will differ from this standard case in two ways. Like any other plaintiff charging official retaliatory action, the plaintiff in a retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury, and the defendant will have the same opportunity to respond to a prima facie case by showing that the action would have been taken anyway, independently of any retaliatory animus. What is different about a prosecution case, however, is that there will always be a distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge. Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence-of probable cause will suggest that prosecution would have occurred even without a retaliatory motive. This alone does not mean, of course, that a Bivens or § 1983 plaintiff should be required to plead and prove no probable cause, but it does mean that litigating probable cause will be highly likely in any retaliatory-prosecution case, owing to its powerful evidentiary significance.

The second respect in which a retaliatory-prosecution case is different also goes to the causation that a Bivens plaintiff must prove; the difference is that the requisite causation between the defendant’s retaliatory animus and the plaintiff’s injury is usually more complex than it is in other retaliation cases, and the need to show this more complex connection supports a requirement that no probable cause be alleged and proven. A Bivens (or §1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute, Imbler v. Pachtman, 424 U. S. 409, 431 (1976). Instead, the defendant will be a nonprosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute. The consequence is that a plaintiff like Moore must show that the non-prosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging.

Thus, the causal connection required here is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another. See 213 F. 3d, at 710 (“In order to find that a defendant procured a prosecution, the plaintiff must establish ‘a chain of causation’ linking the defendant’s actions with the initiation of criminal proceedings”); see also Barts v. Joyner, 865 F. 2d 1187, 1195 (CA11 1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that the police, who allegedly acted in violation of law in securing her arrest, unduly pressured or deceived prosecutors); Dellums v. Powell, 566 F. 2d 167, 192-193 (CADC 1977) (where allegation of misconduct is directed at police, a malicious-prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police); cf. Smiddy v. Varney, 665 F. 2d 261, 267 (CA9 1981) (“[Wjhere police officers do not act maliciously or with reckless disregard for the rights of an arrested person, they are not liable for damages suffered by the arrested person after a district attorney files charges unless the presumption of independent judgment by the district attorney is rebutted”).

Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector’s animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor’s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 489-490 (1999); United States v. Armstrong, 517 U. S. 456, 464-466 (1996). And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal, see Wayte v. United States, 470 U. S. 598, 607-608 (1985).

Some sort of allegation, then, is needed both to bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause.

It would be open to us, of course, to give no special prominence to an absence of probable cause in bridging the causal gap, and to address this distinct causation concern at a merely general level, leaving it to such pleading and proof as the circumstances allow. A prosecutor’s disclosure of retaliatory thinking on his part, for example, would be of great significance in addressing the presumption and closing the gap. So would evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police. Cf. Mt. Healthy, 429 U. S., at 281-283 (evidence that the board of education, which formally decided not to rehire a teacher, was only nominally distinct from the school superintendent, who allegedly bore the retaliatory animus). In fact, though, these examples are likely to be rare and consequently poor guides in structuring a cause of action. In most cases, for instance, it would be unrealistic to expect a prosecutor to reveal his mind even to the degree that this record discloses, with its reported statement by the prosecutor that he was not galvanized by the merits of the case, but sought the indictment against Moore because he wanted to attract the interest of a law firm looking for a tough trial lawyer.

Accordingly, the significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. True, it is not necessarily dis-positive: showing an absence of probable cause may not be conclusive that the inducement succeeded, and showing its presence does not guarantee that inducement was not the but-for fact in a prosecutor’s decision. But a retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor’s decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision, see Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) (emphasizing that “so long as the prosecutor has probable cause,” the charging decision is generally discretionary), and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to bring the charge.

Our sense is that the very significance of probable cause means that a requirement to plead and prove its absence will usually be cost free by any incremental reckoning. The issue is so likely to be raised by some party at some point that treating it as important enough to be an element will be a way to address the issue of causation without adding to time or expense. See n. 7, supra. In this case, for example, Moore cannot succeed in the retaliation claim without showing that the Assistant United States Attorney was worse than just an unabashed careerist, and if he can show that the prosecutor had no probable cause, the claim of retaliation will have some vitality.

In sum, the complexity of causation in a claim that prosecution was induced by an official bent on retaliation should be addressed specifically in defining the elements of the tort. Probable cause or its absence will be at least an evidentiary issue in practically all such cases. Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded and proven.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

The Chief Justice and Justice Alito took no part in the consideration or decision of this case.

Justice Ginsburg,

with whom

Justice Breyer joins, dissenting.

The Court of Appeals, reviewing the record so far made, determined that “[t]he evidence of retaliatory motive [came] close to the proverbial smoking gun.” 388 F. 3d 871, 884 (CADC 2004). The record also indicated that the postal inspectors engaged in “unusual prodding,” strenuously urging a reluctant U. S. Attorney’s Office to press charges against Moore. Ibid. Following Circuit precedent, the Court of Appeals held that “once a plaintiff shows [conduct sheltered by the First Amendment] to have been a motivating factor in the decision to press charges,” the burden shifts to the defending officials to show that the case would have been pursued anyway. Id., at 878.

Recognizing that this case is now directed against the instigating postal inspectors alone, not the prosecutor, I would not assign to the plaintiff the burden of pleading and proving the absence of probable cause for the prosecution. Instead, in agreement with the Court of Appeals, I would assign to the postal inspectors who urged the prosecution the burden of showing that, had there been no retaliatory motive and importuning, the U. S. Attorney’s Office nonetheless would have pursued the case.

Under the Court’s proof burden allocation, which saddles plaintiff — the alleged victim — with the burden to plead and prove lack of probable cause, only entirely “baseless prosecutions” would be checked. Id., at 879. So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law. Under the D. C. Circuit’s more speech-protective formulation, “[a] Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),] recovery remains possible ... in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials’ retaliatory animus.” Id., at 881. That such situations “are likely to be rare,” it seems to me, does not warrant “structuring a cause of action,” ante, at 264, that precludes relief when they do arise.

For reasons fully developed in the D. C. Circuit’s opinion, I conclude that, in full accord with this Court’s decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), the Court of Appeals’ decision strikes the proper balance. I would, therefore, affirm the Circuit’s judgment.

       See, e. g., Seaberry, Durenberger Begins Campaign Against Nine-Digit Zip Code, Washington Post, Feb. 24,1981, p. E4 (describing Senator David Durenberger’s reference to the Zip + 4 campaign as “ ‘a mnemonic plague of contagious digititous’ ”).

        “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U. S. 14, 18 (1980). Though more limited in some respects not relevant here, a Bivens action is the federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U. S. C. § 1983. See Wilson v. Layne, 526 U. S. 603, 609 (1999); see also Waxman & Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L. J. 2195, 2208 (2003) (“Section 1983 applies ... to state and local officers, [and] the Supreme Court in Bivens . . . inferred a parallel damages action against federal officers”).

       Moore and his wife had originally filed this complaint jointly. Her claims were dismissed for lack of standing.

       See 2 C. Dickens, Bleak House 85 (1853).

       Moore contends that we (like the Court of Appeals before us) exceed our appellate jurisdiction when we address the issue of probable cause, see Brief for Respondent 37-39, but his argument is mistaken. It is true that the disagreement over a no-probable-cau'se requirement arose on the inspectors’ motion for summary judgment on their qualified-immunity defense; Moore stresses that an interlocutory appeal can be taken from the rejection of qualified immunity at the summary-judgment stage only on questions turning on the definition of the violation, not on the sufficiency of the evidence to show that a defendant is in fact entitled to the immunity claimed. See Mitchell v. Forsyth, 472 U. S. 511, 528 (1985). Moore says that the issue of probable cause or its absence is simply an evidentiary matter going to entitlement in fact. But the inspectors are making more than a claim about the evidence in this case: they are arguing that we should hold that a showing of no probable cause is an element of the kind of claim Moore is making against them. In agreeing with the inspectors, we are addressing a requirement of causation, which Moore must plead and prove in order to win, and our holding does not go beyond a definition of an element of the tort, directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal. See ibid.; see also Crawford-El v. Britton, 523 U.S. 574, 588, 592-593 (1998); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285-286 (1977).

       In fact, many of the appellate challenges have been brought in the Second, Fifth, and Eleventh Circuits, all of which require plaintiffs to show an absence of probable cause. See, e. g., Izen v. Catalina, 398 F. 3d 363 (CA5 2005) (per curiam); Wood v. Kesler, 323 F. 3d 872 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002); Singer v. Fulton County Sheriff, 63 F. 3d 110 (CA2 1995); Post v. Fort Lauderdale, 7 F. 3d 1552 (CA11 1993); Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Magnotti v. Kuntz, 918 F. 2d 364 (CA2 1990).

       Indeed, even though the Court of Appeals in this ease held that plaintiffs do not have to show an absence of probable cause in order to make retaliatory-prosecution claims, it nevertheless acknowledged probable cause’s significance in such suits. See 388 F. 3d 871, 881 (CADC 2004) (“Given that probable cause ordinarily suffices to initiate a prosecution, that showing will be enough in most cases to establish that prosecution would have occurred absent bad intent. A Bivens recovery remains possible, however, in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the prosecution would not have occurred but for the officials’ retaliatory animus”).

       An action could still be brought against a prosecutor for conduct taken in an investigatory capacity, to which absolute immunity does not extend. See Buckley v. Fitzsimmons, 509 U. S. 259, 274-276 (1993) (no absolute immunity when prosecutor acts in administrative capacity); Burns v. Reed, 500 U. S. 478, 492-495 (1991) (absolute immunity does not attach when a prosecutor offers legal advice to the police regarding interrogation practices). In fact, Moore’s complaint charged the prosecutor with acting in an investigative as well as in a prosecutorial capacity, see App. 45, but dismissal of the complaint as against the prosecutor was affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim against him is before us now.

       No one here claims that simply conducting a retaliatory investigation with a view to promote a prosecution is a constitutional tort. That is not part of Moore’s complaint. See App. 33-34, 38-45. Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us.

       Some may suggest that we should structure a cause of action in the alternative, dispensing with a requirement to show no probable cause when a plaintiff has evidence of a direct admission by a prosecutor that, irrespective of probable cause, the prosecutor’s sole purpose in initiating a criminal prosecution was to acquiesce to the inducements of other government agents, who themselves harbored retaliatory animus. Cf. United States v. Armstrong, 517 U. S. 456, 469, n. 3 (1996) (leaving open the question “whether a [criminal] defendant must satisfy the similarly situated requirement in a case ‘involving direct admissions by [prosecutors] of discriminatory purpose’” (brackets in original)). But this would seem a little like proposing that retirement plans include the possibility of winning the lottery. Unambiguous admissions of successful inducement are likely to be rare, and hassles over the adequacy of admissions will be the predictable result, if any exemption to a no-probable-cause requirement is allowed.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES et al. v. AHLBORN
    No. 04-1506.
    Argued February 27, 2006
    Decided May 1, 2006

      Lori Freno, Assistant Attorney General of Arkansas, argued the cause for petitioners. With her on the briefs was Mike Beebe, Attorney General.

      Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, William Ranter, and Anne Murphy.

      H. David Blair argued the cause for respondent. With him on the brief was Phillip Farris

      A brief of amici curiae urging reversal was filed for the State of Washington et al. by Rob McKenna, Attorney General of Washington, William L. Williams, Senior Assistant Attorney General, and Kimberly D. Frinell, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: David W. Márquez of Alaska, Terry God

        dard of Arizona, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Robert J. Spagnoletti of the District of Columbia, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Phill Kline of Kansas, Gregory D. Stwmbo of Kentucky, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming.

        Louis M. Bograd, Ned Miltenberg, and Kenneth M. Suggs filed a brief for the Association of Trial Lawyers of America as amicus curiae urging affirmance.

   Justice Stevens

delivered the opinion of the Court.

When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid’s costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State’s lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs — like pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable. Ahlborn v. Arkansas Dept. of Human Servs., 397 F. 3d 620 (2005). Other courts have upheld similar lien provisions. See, e. g., Houghton v. Department of Health, 2002 UT 101, 57 P. 3d 1067; Wilson v. Washington, 142 Wash. 2d 40, 10 P. 3d 1061 (2000) (en banc). We granted certiorari to resolve the conflict, 545 U. S. 1165 (2005), and now affirm.

I

On January 2, 1996, respondent Heidi Ahlborn, then a 19-year-old college student and aspiring teacher, suffered severe and permanent injuries as a result of a car accident. She was left brain damaged, unable to complete her college education, and incapable of pursuing her chosen career. Although she possessed a claim of uncertain value against the alleged tortfeasors who caused her injuries, Ahlborn’s liquid assets were insufficient to pay for her medical care. Petitioner Arkansas Department of Health and Human Services (ADHS) accordingly determined that she was eligible for medical assistance and paid providers $215,645.30 on her behalf under the State’s Medicaid plan.

ADHS required Ahlborn to complete a questionnaire about her accident, and sent her attorney periodic letters advising him about Medicaid outlays. These letters noted that, under Arkansas law, ADHS had a claim to reimbursement from “any settlement, judgment, or award” obtained by Ahlborn from “a third party who may be liable for” her injuries, and that no settlement “shall be satisfied without first giving [ADHS] notice and a reasonable opportunity to establish its interest.” ADHS has never asserted, however, that Ahlborn has a duty to reimburse it out of any other subsequently acquired assets or earnings.

On April 11, 1997, Ahlborn filed suit against two alleged tortfeasors in Arkansas state court seeking compensation for the injuries she sustained in the January 1996 car accident. She claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future.

ADHS was neither named as a party nor formally notified of the suit. Ahlborn’s counsel did, however, keep ADHS informed of details concerning insurance coverage as they became known during the litigation.

In February 1998, ADHS intervened in Ahlborn’s lawsuit to assert a lien on the proceeds of any third-party recovery Ahlborn might obtain. In October 1998, ADHS asked Ahlborn’s counsel to notify the agency if there was a hearing in the case. No hearing apparently occurred, and the case was settled out of court sometime in 2002 for a total of $550,000. The parties did not allocate the settlement between categories of damages. ADHS did not participate or ask to participate in settlement negotiations. Nor did it seek to reopen the judgment after the case had been dismissed. ADHS did, however, assert a lien against the settlement proceeds in the amount of $215,645.30 — the total cost of payments made by ADHS for Ahlborn’s care.

On September 30, 2002, Ahlborn filed this action in the United States District Court for the Eastern District of Arkansas seeking a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court’s resolution of the legal questions presented, the parties stipulated that Ahlborn’s entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn’s construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. See App. 17-20.

Ruling on cross-motions for summary judgment, the District Court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned to ADHS her right to any recovery from the third-party tortfeasors to the full extent of Medicaid’s payments for her benefit. Accordingly, ADHS was entitled to a lien in the amount of $215,645.30.

The Eighth Circuit reversed. It held that ADHS was entitled only to that portion of the judgment that represented payments for medical care. For the reasons that follow, we affirm.

II

The crux of the parties’ dispute lies in their competing constructions of the federal Medicaid laws. The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX of the Social Security Act (SSA), as added, 79 Stat. 343, 42 U. S. C. § 1396 et seq. (2000 ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).

States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care, and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See § 1396a.

One such requirement is that the state agency in charge of Medicaid (here, ADHS) “take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available under the plan.” § 1396a(a)(25)(A) (2000 ed.). The agency’s obligation extends beyond mere identification, however;

“in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability.” § 1396a(a)(25)(B).

To facilitate its reimbursement from liable third parties, the State must,

“to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, [have] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services.” § 1396a(a)(25)(H).

The obligation to enact assignment laws is reiterated in another provision of the SSA, which reads as follows:

“(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall—
“(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—
“(A) to assign the State any rights ... to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;
“(B) to cooperate with the State ... in obtaining support and payments (described in subparagraph (A)) for himself...; and
“(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan ....” § 1396k(a).

Finally, “any amount collected by the State under an assignment made” as described above “shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of” the Medicaid recipient. § 1396k(b). “[T]he remainder of such amount collected shall be paid” to the recipient. Ibid.

Acting pursuant to its understanding of these third-party liability provisions, the State of Arkansas passed laws that purport to allow both ADHS and the Medicaid recipient, either independently or together, to recover “the cost of benefits” from third parties. Ark. Code Ann. §§20-77-301 through 20-77-309 (2001). Initially, “[a]s a condition of eligibility” for Medicaid, an applicant “shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to [ADHS] to the full extent of any amount which may be-paid by Medicaid for the benefit of the applicant.” § 20-77-307(a). Accordingly, “[w]hen medical assistance benefits are provided” to the recipient “because of injury, disease, or disability for which another person is liable,” ADHS “shall have a right to recover from the person the cost of benefits so provided.” §20-77-301(a). ADHS’ suit “shall” not, however, “be a bar to any action upon the claim or cause of action of the recipient.” § 20-77-301(b). Indeed, the statute envisions that the recipient will sometimes sue together with ADHS, see §20-77-303, or even alone. If the latter, the assignment described in § 20-77-307(a) “shall be considered a statutory lien on any settlement, judgment, or award received . . . from a third party.” § 20-77-307(c); see also § 20-77-302(a) (“When an action or claim is brought by a medical assistance recipient . . . , any settlement, judgment, or award obtained is subject to the division’s claim for reimbursement of the benefits provided to the recipient under the medical assistance program”).

The State, through this statute, claims an entitlement to more than just that portion of a judgment or settlement that represents payment for medical expenses. It claims a right to recover the entirety of the costs it paid on the Medicaid recipient’s behalf. Accordingly, if, for example, a recipient sues alone and settles her entire action against a third-party tortfeasor for $20,000, and ADHS has paid that amount or more to medical providers on her behalf, ADHS gets the whole settlement and the recipient is left with nothing. This is so even when the parties to the settlement allocate damages between medical costs, on the one hand, and other injuries like lost wages, on the other. The same rule also would apply, it seems, if the recovery were the result not of a settlement but of a jury verdict. In that case, under the Arkansas statute, ADHS could recover the full $20,000 in the face of a jury allocation of, say, only $10,000 for medical expenses.

That this is what the Arkansas statute requires has been confirmed by the State’s Supreme Court. In Arkansas Dept. of Human Servs. v. Ferrel, 336 Ark. 297, 984 S. W. 2d 807 (1999), the court refused to endorse an equitable, nontextual interpretation of the statute. Rejecting a Medicaid recipient’s argument that he ought to retain some of a settlement that was insufficient to cover both his and Medicaid’s expenses, the court explained:

“Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS’s ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the ‘made whole’ rule stated in [Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S. W. 2d 837 (1997)]. By creating an automatic legal assignment which expressly becomes a statutory lien, [Ark. Code Ann. § 20-77-307 (1991)] makes an unequivocal statement that the ADHS’s ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the settlement does not pay all the recipient’s medical costs.” Id., at 308, 984 S. W. 2d, at 811.

Accordingly, the Arkansas statute, if enforceable against Ahlborn, authorizes imposition of a lien on her settlement proceeds in the amount of $215,645.30. Ahlborn’s argument before the District Court, the Eighth Circuit, and this Court has been that Arkansas law goes too far. We agree. Arkansas’ statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws.

Ill

We must decide whether ADHS can lay claim to more than the portion of Ahlborn’s settlement that represents medical expenses. The text of the federal third-party liability provisions suggests not; it focuses on recovery of payments for medical care. Medicaid recipients must, as a condition of eligibility, “assign the State any rights ... to payment for medical care from any third party,” 42 U. S. C. § 1396k(a)(1)(A) (emphasis added), not rights to payment for, for example, lost wages. The other statutory language that ADHS relies upon is not to the contrary; indeed, it reinforces the limitation implicit in the assignment provision.

First, ADHS points to § 1396a(a)(25)(B)’s requirement that States “seek reimbursement for [medical] assistance to the extent of such legal liability” (emphasis added) and suggests that this means that the entirety of a recipient’s settlement is fair game. In fact, as is evident from the context of the emphasized language, “such legal liability” refers to “the legal liability of third parties ... to pay for care and services available under the plan.” § 1396a(a)(25)(A) (emphasis added). Here, the tortfeasor has accepted liability for only one-sixth of the recipient’s overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses. Under the circumstances, the- relevant “liability” extends no further than that amount.

Second, ADHS argues that the language of §1396a(a) (25)(H) favors its view that it can demand full reimbursement of its costs from Ahlborn’s settlement. That provision, which echoes the requirement of a mandatory assignment of rights in § 1396k(a), says that the State must have in effect laws that, “to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual,” give the State the right to recover from liable third parties. This must mean, says ADHS, that the agency’s recovery is limited only by the amount it paid out on the recipient’s behalf— and not by the third-party tortfeasor’s particular liability for medical expenses. But that reading ignores the rest of the provision, which makes clear that the State must be assigned “the rights of [the recipient] to payment by any other party for such health care items or services” § 1396a(a)(25)(H) (emphasis added). Again, the statute does not sanction an assignment of rights to payment for anything other than medical expenses — not lost wages, not pain and suffering, not an inheritance.

Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from “any amount collected by the State under an assignment” before “the remainder of such amount collected” is remitted to the recipient. § 1396k(b). In ADHS’ view, this shows that the State must be paid in full from any settlement. See Brief for Petitioners 13. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS’ conclusion rests on a false premise: The “amount recovered . . . under an assignment” is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State’s assigned rights extend only to recovery of payments for medical care. Accordingly, what § 1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.

At the very least, then, the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care. They did not mandate the enactment of the Arkansas scheme that we have described.

IV

If there were no other relevant provisions in the federal statute, the State might plausibly argue that federal law supplied a recovery “floor” upon which States were free to build. In fact, though, the federal statute places express limits on the State’s powers to pursue recovery of funds it paid on the recipient’s behalf. These limitations are contained in 42 U. S. C. §§ 1396a(a)(18) and 1396p. Section 1396a(a)(18) requires that a state Medicaid plan comply with § 1396p, which in turn prohibits States (except in circumstances not relevant here) from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient:

“(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan
“(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except—
“(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or
“(B) [in certain circumstances not relevant here]
“(b) Adjustment or recovery of medical assistance correctly paid under a State plan
“(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except [in circumstances not relevant here].” § 1396p.

Read literally and in isolation, the anti-lien prohibition contained in § 1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care. Ahlborn does not ask us to go so far, though; she assumes that the State’s lien is consistent with federal law insofar as it encumbers proceeds designated as payments for medical care. Her argument, rather, is that the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement.

We agree. There is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§ 1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§ 1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383-385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§ 1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.

ADHS tries to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn’s “property.” Its argument appears to be that the automatic assignment effected by the Arkansas statute rendered the proceeds the property of the State. See Brief for Petitioners 31 (“[U]nder Arkansas law, the lien does not attach to the recipient’s ‘property’ because it attaches only to those proceeds already assigned to the Department as a condition of Medicaid eligibility”). That argument fails for two reasons. First, ADHS insists that Ahlborn at all times until judgment retained her entire chose in action — a right that included her claim for medical damages. The statutory lien, then, cannot have attached until the proceeds materialized. That much is clear from the text of the Arkansas statute, which says that the “assignment shall be considered a statutory lien on any settlement . . . received by the recipient from a third party” Ark. Code Ann. §20-77-307(c) (2001) (emphasis added). The settlement is not “received” until the chose in action has been reduced to proceeds in Ahlborn’s possession. Accordingly, the assertion that any of the proceeds belonged to the State all along lacks merit.

Second, the State’s argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory lien on those proceeds. Why, after all, would ADHS need a lien on its own property? A lien typically is imposed on the property of another for payment of a debt owed by that other. See Black’s Law Dictionary 922 (6th ed. 1990). Nothing in the Arkansas statute defines the term otherwise.

That the lien is also called an “assignment” does not alter the analysis. The terms that Arkansas employs to describe the mechanism by which it lays claim to the settlement proceeds do not, by themselves, tell us whether the statute violates the anti-lien provision. See United States v. Craft, 535 U. S. 274, 279 (2002); Drye v. United States, 528 U. S. 49, 58-61 (1999). Although denominated an “assignment,” the effect of the statute here was not to divest Ahlborn of all her property interest; instead, Ahlborn retained the right to sue for medical care payments, and the State asserted a right to the fruits of that suit once they materialized. In effect, and as at least some of the statutory language recognizes, Arkansas has imposed a lien on Ahlborn’s property. Since none of the federal third-party liability provisions excepts that lien from operation of the anti-lien provision, its imposition violates federal law.

y

ADHS and its amici urge, however, that even if a lien on more than medical damages would violate federal law in some cases, a rule permitting such a lien ought to apply here either because Ahlborn breached her duty to “cooperate” with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. Neither argument is persuasive.

The United States proposes a default rule of full reimbursement whenever the recipient breaches her duty to “cooperate,” and asserts that Ahlborn in fact breached that duty. But, even if the Government’s allegations of obstruction were supported by the record, its conception of the duty to cooperate strays far beyond the text of the statute and the relevant regulations. The duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. See 42 U. S. C. § 1396k(a)(1)(C) (recipients must “cooperate with the State in identifying ... and providing information to assist the State in pursuing” third parties). Most of the accompanying federal regulations simply echo this basic duty; all they add is that the recipient must “[p]ay to the agency any support or medical care funds received that are covered by the assignment of rights.” 42 CFR § 433.147(b)(4) (2005).

In any event, the aspersions the United States casts upon Ahlborn are entirely unsupported; all the record reveals is that ADHS, despite having intervened in the lawsuit and asked to be apprised of any hearings, neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here.

ADHS’ and the United States’ alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation is more colorable, but ultimately also unpersuasive. The issue is not, of course, squarely presented here; ADHS has stipulated that only $35,581.47 of Ahlborn’s settlement proceeds properly are designated as payments for medical costs. Even in the absence of such a postsettlement agreement, though, the risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.

VI

Finally, ADHS contends that the Court of Appeals’ decision below accords insufficient weight to two decisions by the Departmental Appeals Board of HHS (Board) rejecting appeals by the States of California and Washington from denial of reimbursement for costs those States paid on behalf of Medicaid recipients who had settled tort claims. See App. to Pet. for Cert. 45-67 (reproducing In re Washington State Dept. of Social & Health Servs., Dec. No. 1561, 1996 WL 157123 (HHS Dept. App. Bd., Feb. 7, 1996)); App. to Pet. for Cert. 68-86 (reproducing In re California Dept. of Health Servs., Dec. No. 1504, 1995 WL 66334 (HHS Dept. App. Bd., Jan. 5,1995)). Because the opinions in those eases address a different question from the one posed here, make no mention of the anti-lien provision, and, in any event, rest on a questionable construction of the federal third-party liability provisions, we conclude that they do not control our analysis.

Normally, if a State recovers from a third party the cost of Medicaid benefits paid on behalf of a recipient, the Federal Government owes the State no reimbursement, and any funds already paid by the Federal Government must be returned. See 42 CFR § 433.140(a)(2) (2005) (federal financial participation “is not available in Medicaid payments if . . . [t]he agency received reimbursement from a liable third party”); § 433.140(c). Washington and California both had adopted schemes according to which the State refrained from claiming full reimbursement from tort settlements and instead took only a portion of each settlement. (In California, the recipient typically could keep at least 50% of her settlement, see App. to Pet. for Cert. 72; in Washington, the proportion varied from case to case, see id., at 48-51.) Each scheme resulted in the State’s having to pay a portion of the recipient’s medical costs — a portion for which the State sought partial reimbursement from the Federal Government. CMS (then called HCFA) denied this partial reimbursement on the ground that the States had an absolute duty to seek full payment of medical expenses from third-party tortfeasors.

The Board upheld CMS’ determinations. In California’s appeal, which came first, the Board concluded that the State’s duty to seek recovery of benefits “from available third party sources to the fullest extent possible” included demanding full reimbursement from the entire proceeds of a Medicaid recipient’s tort settlement. Id., at 76. The Board acknowledged that § 1396k(a) “refers to assignment only of ‘payment for medical care,’ ” but thought that “the statutory scheme as a whole contemplates that the actual recovery might be greater and, if it is, that Medicaid should be paid first.” Ibid. The Board gave two other reasons for siding with CMS: First, the legislative history of the third-party liability evinced a congressional intent that “the Medicaid program ... be reimbursed from available third party sources to the fullest extent possible,” ibid.; and, second, California had long been on notice that it would not be reimbursed for any shortfall resulting from failure to fully recoup Medicaid’s costs from tort settlements, see id., at 77. The Board also opined that the State could not escape its duty to seek full reimbursement by relying on the Medicaid recipient’s efforts in litigating her claims. See id., at 79-80.

Finally, responding to the State’s argument that its scheme gave Medicaid recipients incentives to sue third-party tortfeasors and thus resulted in both greater recovery and lower costs for the State, the Board observed that “a state is free to allow recipients to retain the state’s share” of any recovery, so long as it does not compromise the Federal Government’s share. Id., at 85.

The Board reached the same conclusion, by the same means, in the Washington case. See id., at 53-64.

Neither of these adjudications compels us to conclude that Arkansas’ statutory lien comports with federal law. First, the Board’s rulings address a different question from the one presented here. The Board was concerned with the Federal Government’s obligation to reimburse States that had, in its view, failed to seek full recovery of Medicaid’s costs and had instead relied on recipients to act as private attorneys general. The Board neither discussed nor even so much as cited the federal anti-lien provision.

Second, the Board’s acknowledgment that the assignment of rights required by § 1396k(a) is limited to payments for medical care only reinforces the clarity of the statutory language. Moreover, its resort to “the statutory scheme as a whole” as justification for muddying that clarity is nowhere explained. Given that the only statutory provisions CMS relied on are §§ 1396a(a)(25), 1396k(a), and 1396k(b), see id., at 75-76; id., at 54-55, and given the Board’s concession that the first two of these limit the State’s assignment to payments for medical care, the “statutory scheme” must mean § 1396k(b). But that provision does not authorize the State to demand reimbursement from portions of the settlement allocated or allocable to nonmedical damages; instead, it gives the State a priority disbursement from the medical expenses portion alone. See supra, at 282. In fact, in its adjudication in the Washington case, the Board conceded as much: “[CMS] may require a state to assert a collection priority over funds obtained by Medicaid recipients in [third-party liability] suits even though the distribution methodology set forth in section [1396k(b)] refers only to payments collected pursuant to assignments for medical care.” App. to Pet. for Cert. 54 (emphasis added). The Board’s reasoning therefore is internally inconsistent.

Third, the Board’s reliance on legislative history is misplaced. The Board properly observed that Congress, in crafting the Medicaid legislation, intended that Medicaid be a “payer of last resort.” S. Rep. No. 99-146, p. 313 (1985). That does not mean, however, that Congress meant to authorize States to seek reimbursement from Medicaid recipients themselves; in fact, with the possible exception of a lien on payments for medical care, the statute expressly prohibits liens against the property of Medicaid beneficiaries. See 42 U. S. C. § 1396p(a). We recognize that Congress has delegated “broad regulatory authority to the Secretary [of HHS] in the Medicaid area,” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 496, n. 13 (2002), and that agency adjudications typically warrant deference. Here, however, the Board’s reasoning couples internal inconsistency with a conscious disregard for the statutory text. Under these circumstances, we decline to treat the agency’s reasoning as controlling.

VII

Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas’ third-party liability provisions are unenforceable insofar as they compel a different conclusion. The judgment of the Court of Appeals is affirmed.

It is so ordered.

       ADHS was then named Arkansas Department of Human Services.

       Affidavit of Wayne E. Olive, Exhs. 5 and 6 (Mar. 6, 2003).

       Until 2001, CMS was known as the Health Care Financing Administration or HCFA. See 66 Fed. Reg. 35437.

       The exact percentage of the federal contribution is calculated pursuant to a formula keyed to each State’s per capita income. See 42 U. S. C. § 1396d(b).

       A “third party” is defined by regulation as “any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan.” 42 CFR §433.136 (2005).

       Under the Arkansas statute, ADHS’ right to recover medical costs appears to be broader than that of the recipient. When ADHS sues, “no contributory or comparative fault of a recipient shall be attributed to the state, nor shall any restitution awarded to the state be denied or reduced by any amount or percentage of fault attributed to a recipient.” § 20-77-301(d)(1) (2001).

       The Arkansas Supreme Court has held that ADHS has an independent, nonderivative right to recover the cost of benefits from a third-party tortfeasor under §20-77-301 even when the Medicaid recipient also sues for recovery of medical expenses. See National Bank of Commerce v. Quirk, 323 Ark. 769, 792-794, 918 S. W. 2d 138, 151-152 (1996).

       ADHS denies that it would actually demand the full $20,000 in such a case, see Brief for Petitioners 49, n. 13, but points to no provision of the Arkansas statute that would prevent it from doing so.

       The parties here assume, as do we, that a State can fulfill its obligations under the federal third-party liability provisions by requiring an “assignment” of part of, or placing a lien on, the settlement that a Medicaid recipient procures on her own. Cf. §§ 1396k(a)(l)(B)-(C) (the recipient has a duty to identify liable third parties and to “provid[e] information to assist the State in pursuing” those parties (emphasis added)).

       The effect of the stipulation is the same as if a trial judge had found that Ahlborn’s damages amounted to $3,040,708.12 (of which $215,645.30 were for medical expenses), but because of her contributory negligence, she could only recover one-sixth of those damages.

       Implicit in ADHS’ interpretation of this provision is the assumption that there can be no “remainder” to remit to the Medicaid recipient if all the State has been assigned is the right to damages for medical expenses. That view in turn seems to rest on an assumption either that Medicaid will have paid all the recipient’s medical expenses or that Medicaid’s expenses will always exceed the portion of any third-party recovery earmarked for medical expenses. Neither assumption holds up. First, as both the Solicitor General and CMS acknowledge, the recipient often will have paid medical expenses out of her own pocket. See Brief for United States as Amicus Curiae 12 (under § 1396k(b), “the beneficiary retains the right to payment for any additional medical expenses personally incurred either before or subsequent to Medicaid eligibility and for other damages”); CMS, State Medicaid Manual § 3907, available at https://www.lexis. com>Legal>Secondary Legal>CCH>Health Law>CMS Program Manuals>CCH CMS Program Manuals P 3907 (as updated Mar. 25, 2006, and available in Clerk of Court’s ease file) (envisioning that “medical insurance payments,” for example, will be remitted to the recipient if possible). Second, even if Medicaid’s outlays often exceed the portion of the recovery earmarked for medical expenses in tort cases, the third-party liability provisions were not drafted exclusively with tort settlements in mind. In the case of health insurance, for example, the funds available under the policy may be enough to cover both Medicaid’s costs and the recipient’s own medical expenses.

       ADHS concedes that, had a jury or judge allocated a sum for medical payments out of a larger award in this case, the agency would be entitled to reimburse itself only from the portion so allocated. See Brief for Petitioners 49, n. 13; see also Brief for United States as Amicus Curiae 22, n. 14 (noting that the Secretary of HHS “ordinarily accepts” a jury allocation of medical damages in satisfaction of the Medicaid debt, even where smaller than the amount of Medicaid’s expenses). Given the stipulation between ADHS and Ahlborn, there is no textual basis for treating the settlement here differently from a judge-allocated settlement or even a jury award; all such awards typically establish a third party’s “liability” for both “payment for medical care” and other heads of damages.

       Likewise, subsection (b) would appear to forestall any attempt by the State to recover benefits paid, at least from the “individual.” See, e. g., Martin ex rel. Hoff v. Rochester, 642 N. W. 2d 1, 8, n. 6 (Minn. 2002); Wallace v. Estate of Jackson, 972 P. 2d 446, 450 (Utah 1998) (Durham, J., dissenting) (reading § 1396p to “prohibi[t] not only liens against Medicaid recipients but also any recovery for medical assistance correctly paid”). The parties here, however, neither cite nor discuss the antirecovery provision of § 1396p(b). Accordingly, we leave for another day the question of its impact on the analysis.

       “Property” is defined by regulation as “the homestead and all other personal and real property in which the recipient has a legal interest.” 42 CPE § 433.36(b) (2005).

       The United States as amicus curiae makes the different argument that the proceeds never became Ahlborn’s “property” because “to the extent the third party’s payment passes through the recipient’s hands en route to the State, it comes with the State’s lien already attached.” Brief as Amicus Curiae 18. Even if that reading were consistent with the Arkansas statute (and it is not, see infra this page), the United States’ characterization of the “assignment” simply reinforces Ahlborn’s point: This is a lien that attaches to the property of the recipient.

       Because ADHS insists that “Arkansas law did not require Ahlborn to assign her claim or her right to sue,” Brief for Petitioners 33 (emphasis in original), we need not reach the question whether a State may force a recipient to assign a chose in action to receive as much of the settlement as is necessary to pay Medicaid’s costs. The Eighth Circuit thought this would be impermissible because the State cannot “circumvent the restrictions of the federal anti-lien statute simply by requiring an applicant for Medicaid benefits to assign property rights to the State before the applicant liquidates the property to a sum certain.” App. to Pet. for Cert. 6. Indeed, ADHS acknowledges that Arkansas cannot, for example, require a Medicaid applicant to assign in advance any right she may have to recover an inheritance or an award in a civil ease not related to her injuries or medical care. This arguably is no different; as with assignment of those other choses in action, assignment of the right to compensation for lost wages and other nonmedical damages is nowhere authorized by the federal third-party liability provisions.

       See, e. g., Brief for United States as Amicus Curiae 14 (alleging that Ahlborn “omitt[ed] or understated] the medical damages claim from her lawsuit and attempt[ed] to horde for herself the third-party liability payments”); id., at 15 (“[H]aving forsaken her federal and state statutory duties of candid and forthcoming cooperation[,] respondent, rather than the taxpayers, must bear the financial consequences of her actions”); id., at 21, 24 (referring to Ahlborn’s “backdoor settlement”, and “obstruction and attrition,” as well as her “calculated evasion of her legal obligations”).

       As one amicus observes, some States have adopted special rules and procedures for allocating tort settlements in circumstances where, for example, private insurers’ rights to recovery are at issue. See Brief for Association of Trial Lawyers of America 20-21. Although we express no view on the matter, we leave open the possibility that such rules and procedures might be employed to meet concerns about settlement manipulation.

       The point is illustrated by state cases involving the recovery of workers’ compensation benefits paid to an employee (or the family of an employee) whose injuries were caused by a third-party tortfeasor. In Flanigan v. Department of Labor and Industry, 123 Wash. 2d 418, 869 P. 2d 14 (1994), for example, the court concluded that the state agency could not satisfy its lien out of damages the injured worker’s spouse recovered as compensation for loss of consortium. The court explained that the department could not “share in damages for which it has provided no compensation” because such a result would be “absurd and fundamentally unjust.” Id., at 426, 869 P. 2d, at 17.