Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/25

Rh what it lacks—a private judicial right of action, a private federal administrative remedy, or any “ ‘carefu[l]’ ” congressional “ ‘tailor[ing],’ ” Fitzgerald, 555 U. S., at 255, that §1983 actions would “distort,” Rancho Palos Verdes, 544 U. S., at 127. HHC seems to think it enough to show that Congress was not slipshod in crafting the remedial scheme. But in a world where the FNHRA’s remedial scheme could “complement,” not “supplant, §1983,” id., at 122, HHC must demonstrate more than that.

One last rebuttal argument warrants addressing. The United States says that, because private entities owned most nursing homes when the FNHRA was enacted in 1987 (as they do now), the FNHRA is a rare bird for implicit-preclusion purposes. In the United States’ view, because Congress knew that most nursing homes could not be subject to suit under §1983 anyway, see, e.g., Polk County v. Dodson, 454 U. S. 312, 317–319 (1981), the FNHRA’s remedial scheme “necessarily reflects Congress’s judgment that these administrative enforcement mechanisms appropriately protect the rights the statute confers,” Brief for United States as Amicus Curiae 31.

This argument is unavailing. The implicit-preclusion inquiry looks to “the statute creating the right” and any “ ‘comprehensive enforcement scheme’ ” Congress has created in the statute “ ‘that is incompatible with individual enforcement under §1983.’ ” Rancho Palos Verdes, 544 U. S., at 120 (emphasis added). It does not invite speculation about ostensible marketplace realities that appear nowhere in the statute’s text or relevant context. The relevant FNHRA provisions speak in neutral terms that do not distinguish between private and public nursing homes. And, regardless, the question remains whether something in the FNHRA has foreclosed §1983’s “genera[l]” availability as “a remedy for the vindication of rights secured by federal statutes.” Gonzaga, 536 U. S., at 284. We see no such sign,