This appeal is from a grant of a preliminary injunction ordering the Pennsylvania Department of Public Welfare to fund an immediate residential placement for a blind and mentally retarded young woman. The Pennsylvania Department of Public Welfare has insufficient funds to serve adequately all of the mentally retarded individuals in the state who qualify for residential services. It leaves to each county the determination as to how to allocate among needy individuals in that county the limited state funds that the Department provides. This case raises the question whether the Department violates the Fourteenth Amendment to the United States Constitution by its procedures for requesting and allocating state funds and by its failure to provide special funds for an individual who is in dire need of appropriate residential services but is not now receiving them because she is on a waiting list.1 We conclude that it does not.

Cynthia Alessi is a 23-year old woman who is profoundly mentally retarded and legally blind. She also suffers from other serious physical and behavioral disabilities. She has a congenital heart defect, is hyperactive, has an active seizure disorder, and experiences "significant behavioral difficulties." Appendix ("App.") at 105-6. From 1978 through June, 1986, Alessi resided at the Royer-Greaves School for the Blind ("Royer-Greaves"), in an educational placement by the Haverford School District of Delaware County, Pennsylvania. During those eight years, Cynthia made significant gains for a person with her disabilities and had become happy, emotionally stable, non-self-abusive and toilet trained. She could dress herself and perform simple vocational tasks. At the end of her educational placement, at age 21, Alessi was sent home to her parents. App. at 106; Appellee's Brief ("Apple's Br.") at 4.

Alessi's parents, realizing that her educational entitlement would end in June of 1986, and that the Delaware County Mental Health/Mental Retardation ("MH/MR") Association would be responsible for providing services to her thereafter, applied to a number of federally-funded facilities for the mentally retarded that seemed to be appropriate to Alessi's needs. Apple's Br. at 4-5. All of them rejected her, saying that they were unable to care for someone with her overwhelming disabilities. Id. Delaware County has some state facilities equipped to care for Alessi, but no places are available in them at present. The MH/MR Association says that there are no funds to place Alessi in a private facility such as the Royer-Greaves School, which remains willing and able to receive her, and that because of inadequate funds from the Pennsylvania Department of Public Welfare ("DPW" or "Department"), it cannot provide her with any appropriate residential service at present. App. at 38-39. The DPW does not allocate money for individual cases; instead, it gives a lump sum to each county and the county distributes it. Delaware County maintains a waiting list of individuals who qualify for care, and provides care as funds become available.2 Since her discharge from the Royer-Greaves School, Alessi has been in a day program for six hours a day, and she spends the rest of her time at home with her parents. In three years of such care, she has lost virtually all of the training she had gained during her eight years at Royer-Greaves. App. at 106-07. She is no longer toilet trained and does not use the minimal sign language she had acquired. She engages in serious self-abusive behavior, awakens repeatedly at night screaming, has knocked a door off its hinges and is in danger of harming herself. Unrebutted expert testimony has established that unless she receives appropriate residential care in the near future, she may never be able to regain the basic skills she had so painstakingly acquired. App. at 110.

In October, 1986, Alessi's parents petitioned for her involuntary commitment to an appropriate residential facility pursuant to the Pennsylvania Mental Health and Mental Retardation Act of 1966 ("MH/MR Act"), Pa.Stat.Ann. tit. 50, Secs. 4101-4704, Sec. 4406 (Purdon 1969 & Supp.1989).3 Neither the DPW nor any of its officials or employees was made a party to that action; the DPW was informed of the action, but did not intervene. App. at 107-108. At the conclusion of the commitment hearing, the Court of Common Pleas of Delaware County ordered that Alessi be committed to the Royer-Greaves School at the expense of the DPW. App. at 108. The DPW appealed the order and the appeal was quashed by the Commonwealth Court on the ground that the DPW did not have party status to appeal because it had not intervened. Commonwealth of Pennsylvania v. Alessi, 105 Pa.Commw. 453, 455, 524 A.2d 1052, 1053 (1987). In August, 1988, the DPW was held in contempt by the Delaware County Court of Common Pleas for failing to comply with its order, but the Commonwealth Court reversed the contempt order on the ground that the Court of Common pleas had no jurisdiction over the Department in the case. Dept. of Public Welfare v. Alessi, 119 Pa.Commw. 160, 163-64, 546 A.2d 157, 158-59 (1988). Alessi filed a Petition for Allowance of Appeal of that decision before the Pennsylvania Supreme Court in September 1988, but the court had not ruled on the petition at the time of this appeal. Apple's Br. at 6. In May 1988, Alessi filed a civil rights action seeking declaratory and injunctive relief and damages against the DPW in the Court of Common Pleas of Delaware County, alleging violations of her Fourteenth Amendment rights pursuant to 42 U.S.C. Secs. 1983 and 1985 (1982). She filed a motion for a preliminary injunction at the same time. At the hearing on the motion for the preliminary injunction, the DPW challenged the jurisdiction of the court to determine claims against Commonwealth officers for declaratory and injunctive relief brought under those statutes, and the Delaware County Court of Common Pleas held that it had no jurisdiction with regard to those claims. App. at 109.

In December, 1988, plaintiff filed this motion for declaratory and injunctive relief under 42 U.S.C. Secs. 1983 and 1985 in United States District Court for the Eastern District of Pennsylvania and requested a preliminary injunction at the same time. Appellant's Brief ("Applt's Br.") at 7.

In granting the preliminary injunction ordering the DPW to provide funds for an immediate residential placement for Alessi, 710 F. Supp. 127, the district court found that Alessi had a constitutionally protected property interest in appropriate residential services under the Pennsylvania MH/MR Act, 50 Pa.Stat.Ann. Sec. 4406. App. at 119-22. It also found that there was a substantial likelihood that DPW's procedures for funding its residential programs, which regularly resulted in insufficient funds and in this case resulted in the denial of services for Alessi, were irrational and arbitrary. The court found that the DPW knowingly failed to request in its budget an amount adequate to cover cost of the residential services for all who were entitled to them. In addition, it found that the DPW failed to base allocations on projections of the counties' needs for a given year but instead made across the board cost-of-living increases to the county budgets for the previous year. App. at 122-23. The preliminary injunction that is appealed here ordered the DPW to provide the state funding necessary for Alessi's immediate placement at either the Royer-Greaves School or the Elwyn Institute. App. at 125-26. A stay of the preliminary injunction was granted pending this appeal. App. at 153.

We have noted the following factors among those that guide the exercise of the trial court's equitable discretion in its decision to grant a preliminary injunction: (1) the probability of irreparable injury to the moving party in the absence of relief; (2) the possibility of harm to the nonmoving party if relief were granted; (3) the likelihood of success on the merits; and (4) the public interest. United States v. Price, 688 F.2d 204, 211 (3d Cir.1982). Our authority to review a district court's decision to issue a preliminary injunction is limited. We must affirm the decision unless the court has abused its discretion, committed an obvious error in applying the law or made a serious mistake in considering the proof. Id. at 210; Premier Dental Products v. Darby Dental Supply Co., 794 F.2d 850, 852 (3d Cir.1986). With this standard in mind, we shall review the factors to be considered with regard to the grant of the preliminary injunction.

The probability of irreparable injury to Cynthia Alessi if the preliminary injunction is not granted is beyond dispute. Unrebutted expert testimony established the tragic facts of Alessi's severe regression since her educational placement at Royer-Greaves ended three years ago. She has lost virtually all of the basic human skills and training she had acquired in her eight years at the school. The district court found that if it refused to grant the requested relief, Alessi would "suffer the irreparable injury of continuing to regress from a body incapable of much more than rocking itself back and forth. Alessi's family cannot afford the expense of residential care, and without it she may regress to the point where she will never be able to regain basic skills." App. at 123. The district court's finding is well supported and it did not abuse its discretion in making it.

The DPW claims that the district court did not discuss the second or fourth factors, the possibility of harm to the Department or to other interested parties and the public interest if the injunction were granted. The DPW notes that in cases involving public issues or policy matters it is particularly appropriate that the court consider possible harm to other interested parties and to the public interest in considering a request for a preliminary injunction. Applt's Br. at 17; see also Oburn v. Shapp, 521 F.2d 142 (3d Cir.1975).

The DPW argues that court orders requiring it to pay for services for particular individuals severely disrupt the Department's ability to plan and coordinate the equitable distribution of services to the mentally retarded throughout the state. It claims that compliance with such orders requires redistribution of available funds to the counties, which results in other counties' diminished ability to maintain existing services to their current clients, and that compliance with this order will cause it to reduce the amount of community residential funds it has allocated to some or all of the other counties. App. at 115. Counsel for Alessi counters that there is enough flexibility in the DPW budget to allow it to fund Alessi's placement without requiring it to redistribute money to other counties. He suggests that the DPW could reallocate to Delaware County for Alessi's placement part of the approximately one million dollars it budgets annually for conferences and training. App. at 57.

The district court mentioned the DPW's allegations that court orders forcing it to provide money for individuals disrupt its overall plans, but did not discuss them further. We may assume, however, that it concluded that whatever harm the DPW and the public would sustain from the preliminary injunction was not great enough to bar its issuance in the face of the tragic and irreparable consequences for Alessi if it were not issued. We cannot say that the district court abused its discretion in reaching that conclusion. The possible harm caused by issuing this preliminary injunction is not great, and it must be distinguished from the greater harm that might result to the DPW and the public interest if Alessi prevailed on the merits and the DPW had to face such challenges from individuals on a regular basis. The amount involved here is only the cost of paying for Alessi's residential placement until the case has been tried, and the court required that an appropriate bond be posted to cover that cost in the event that Alessi did not prevail on the merits. App. at 126.

We now reach the question of whether Alessi is likely to prevail on the merits. This turns on whether Alessi has a federally protected interest in receiving appropriate residential services from the DPW and whether the DPW violated her fourteenth amendment due process rights in failing to provide such services.

The district court in this case did not base its injunction on a substantive due process right to mental retardation services under the fourteenth amendment, and it is clear that such a claim could not succeed under DeShaney v. Winnebago County Department of Social Services, --- U.S. ----, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) and Philadelphia Police and Fire Association For Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir.1989). On appeal, both sides agreed that DeShaney and Philadelphia Police foreclose plaintiff's substantive due process claims.4

Instead, the district court found that the state MH/MR Act, as interpreted by the Pennsylvania Supreme Court, had created a property interest in appropriate mental retardation services, and that the procedures followed by the state in connection with the failure to provide Alessi with appropriate residential mental retardation services violated her due process rights under the fourteenth amendment. App. at 120-23. Our review of this case on the merits is limited to deciding whether the district court correctly interpreted Pennsylvania law as to the scope of Alessi's state-created property interest in appropriate mental retardation services and to determining what procedures, if any, are required under the fourteenth amendment in connection with the state's failure to provide such services for her.

The Pennsylvania MH/MR Act clearly states that the DPW has a duty "to assure ... the availability and equitable provision of adequate ... mental retardation services for all persons who need them...." 50 Pa.Stat.Ann. Sec. 4201. The DPW claims, however, that the section does not create an unqualified right to services, but must be read in conjunction with Sec. 4509(5), which anticipates funding shortfalls and requires the DPW, if it receives an appropriation insufficient to fund approved grants,

to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties' financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available.

50 Pa.Stat.Ann. Sec. 4509(5).

The DPW notes that the Pennsylvania Supreme Court has held that the Pennsylvania Constitution prohibits the executive branch from spending more on a program than the legislature designates. Pa. Const. art. III, Sec. 24, as interpreted by Shapp v. Sloan, 480 Pa. 449, 468-69, 391 A.2d 595, 604 (1978). It claims that when appropriated funds are insufficient to provide benefits under a statute to all who would otherwise be entitled to them, the executive branch "discharges its duty if it distributes funds available in some rational and equitable manner." Appellant's Brief at 14.

Contrary to appellant's argument, Pennsylvania case law interprets the statute to mean more than that an individual's interest is wholly contingent on appropriated funds. In re Sauers, 68 Pa.Commw. 83, 447 A.2d 1132 (1982), aff'd, 500 Pa. 342, 456 A.2d 987 (1983), raised the question whether the DPW or the county should pay for residential services for a mentally retarded woman. The court held that it was the DPW's responsibility and suggested that the DPW could obtain additional funds when needed.

[S]ections 508, 510 and subsection (5) of 509 of the [MH/MR] Act all contemplate the possibility that unbudgeted, unappropriated fiscal demands might be made on the State Treasury to pay for the essential services which the Act requires the Commonwealth to provide under Section 201, 50 P.S. Sec. 4201(1).

In re Sauers, 68 Pa.Cmwlth. at 90, 447 A.2d 1132.5

In another case, In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), the Pennsylvania Supreme Court stated that a mere recitation of practical difficulties in finding an immediate and appropriate placement for a mentally retarded young man (it did not address funding shortfalls) was not enough to discharge the state's obligation. Id. 429 A.2d at 637.

It is the state's responsibility to find a placement for Joseph with a staff-patient ratio suitable to his needs. The state will not be allowed to ignore that responsibility and that obligation by stating that an appropriate facility is not immediately available. Section 201(1) of the Act, 50 P.S. Sec. 4201(1), requires the state to provide adequate mental retardation services for persons in need of them. Joseph Schmidt has clearly demonstrated his need and the State must respond to it.

Id. at 637 (emphasis in original).

This court has also discussed the relation between the state's obligation to provide mental retardation services and the availability of funding in Halderman v. Pennhurst State School & Hospital, 673 F.2d 647 (3d Cir.1982),6 and has stressed the expectation of a good faith effort by government to find funds to provide needed services.

The Schmidt court made clear that the Pennsylvania law imposed the obligation on both levels of government to provide habilitation in that environment providing the least restriction on personal liberty consistent with habilitation. Insofar as financial burdens are concerned, it merely referred to Sections 508 and 509 of the MH/MR Act of 1966, which impose funding duties on both levels of government, and which provide mechanisms for the allocation of appropriated funds among the counties. The Commonwealth was ordered to find a placement for Schmidt in an institution with a staff-patient ratio suitable to his needs. There is no suggestion in the Schmidt opinion that this order would be qualified by the necessity for appropriations. Obviously the Schmidt court anticipated that the adjustment mechanisms of Sections 508 and 509 would be operated in good faith. Nothing in the record which is before us on this appeal suggests that those mechanisms will be dismantled, will be operated other than in good faith, or are inhibited by the provisions of this judgment. On the record we, like the Supreme Court of Pennsylvania, must assume that the Pennsylvania legislature intends compliance with its statutes.

Halderman, 673 F.2d at 654-55 (footnote and citation omitted).

The courts in Schmidt, Sauers, and Pennhurst all found that a mere recitation that funds or facilities were not available was not enough to satisfy the DPW's duty to provide services for those in its charge. They expected that the DPW would make a good faith effort to secure sufficient funds "to assure ... the availability ... of adequate ... mental retardation services for all who need them." 50 Pa.Stat.Ann. Sec. 4201(1). The district court found, in the case at bar, that it had not made that effort:

The testimony established that it is the policy and practice of the Secretary of the Department of Public Welfare to intentionally close his eyes to reality and knowingly request a total annual budget of less funding than is necessary for the adequate residential care of mentally retarded persons in Pennsylvania. In reliance on the Secretary's understated request, the Governor requests insufficient funds from the Legislature for care of the mentally retarded. Thus the Secretary's practice necessarily precludes the mentally retarded from receiving the funding they desperately need and I find that it is arbitrary.

App. at 122-23.

The district court is correct in its description of the process, but it fails to note that, according to unrebutted testimony, it is the Governor's Budget Office, rather than DPW's secretary, who initiates the request of funds known to be inadequate. The DPW's witness, Mr. Gaultier, Director of the Bureau of Mental Retardation Program Support, testified that every year the Governor's Budget Office instructs the DPW as to the amount the DPW should request for the new budget. App. at 50-51, 65. That amount is considerably less than the Department needs to fund its programs fully.7 The district court attributed this procedure to a desire by the governor to present and by the legislature to pass a budget that appears to provide all the money needed for the care of the mentally retarded so that they will not have to take the political "heat" for failing to provide adequately for the state's citizens who are in need of such services. App. at 87-88. The result is that many people who desperately need services are placed on waiting lists, sometimes, as in Alessi's case, for years.

The Secretary of the DPW is not making the good faith effort contemplated by the Pennhurst court to secure the funds necessary for all the individuals in his charge when he neither requests the full amount the Department needs nor seeks supplemental appropriations when the amount initially appropriated is insufficient.8 The question remains, however, whether his actions violate Alessi's procedural due process rights under the fourteenth amendment.

Alessi also claims, and the district court agrees, that the DPW's methods of allocating funds among the counties is arbitrary. The court said in its opinion,

The testimony further established that the Secretary utilizes an arbitrary method of allocating the budgeted funds among the counties. Essentially, funding allocation is based on each county's past expenditures (plus an arbitrary increase for all counties), rather than on an individual determination of each county's current needs for the particular fiscal year. In effect, the Secretary's methodology, policy and practice is to deny adequate provision for Cynthia Alessi's needs without giving her case any meaningful consideration.

App. at 122-23.9 Even if the district court is correct in its designation of this method as arbitrary, there remains the question whether such state action constitutes a violation of Alessi's procedural due process rights under the fourteenth amendment to the Constitution.

The district court noted that "the Commonwealth need not create a system of benefits for the mentally retarded. Having chosen to extend the right to adequate treatment to persons in Ms. Alessi's position, however, it may not be withdrawn in the absence of procedures that are fundamentally fair." App. at 121-22. We agree with that statement as a general proposition, but find that it does not describe what has happened in this case. Neither Alessi's right to adequate treatment nor the treatment itself has been withdrawn by the DPW. The DPW recognizes Alessi's right to treatment, but claims that the right is conditioned on the availability of funds appropriated by the state legislature. The DPW has not withdrawn treatment that it had been providing for Alessi; she is new to its rolls. When her educational entitlement ended, she applied for services from the DPW under the MH/MR Act and was put on the list of those waiting for residential placement in her county. The DPW does not decide which individuals are put on the waiting list and when individuals on the waiting list are offered placements; those determinations are left to the counties.

In a procedural due process analysis, we must first ask whether the challenged government action deprived the plaintiff of a liberty or property interest that is protected by the due process clause. Brock v. Roadway Express, Inc., 481 U.S. 252, 260, 107 S. Ct. 1740, 269, 95 L. Ed. 2d 239 (1987) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S. Ct. 1487, 1491-92, 84 L. Ed. 2d 494 (1985)); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 2708-10, 33 L. Ed. 2d 548 (1972). In Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), the Supreme Court addressed the question of due process rights regarding the termination of government benefits that were already being provided, and held that the due process clause required a pretermination hearing before financial aid could be denied under Aid to Families with Dependent Children. However, in a later case, the Court noted that, "[w]e have never held that applicants for government benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by Due Process clause of the Fifteenth or Fourteenth Amendment." Lyng v. Payne, 476 U.S. 926, 942, 106 S. Ct. 2333, 2343, 90 L. Ed. 2d 921 (1986) (citing Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 320 n. 8, 105 S. Ct. 3180, 3189 n. 8, 87 L. Ed. 2d 220 (1985)). See also Jordan v. Ben. Rev. Bd. of U.S. Dept. of Labor, 876 F.2d 1455, 1459 (11th Cir.1989); Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921 (5th Cir.1988).

This court has accorded procedural due process protection to applicants who did not have present enjoyment of a benefit, as have other federal courts. See, e.g., Kelly v. Railroad Retirement Board, 625 F.2d 486 (3d Cir.1980) (applicant for disabled child's annuity under Railroad Retirement Act); Raper v. Lucey, 488 F.2d 748 (1st Cir.1973) (applicant for driver's license); Ressler v. Pierce, 692 F.2d 1212 (9th Cir.1982) (applicants for federal rent subsidies); Butland v. Bowen, 673 F. Supp. 638 (D.Mass.1987) (applicant for Social Security disability benefits). But in those cases, determinations had been made by the defendants to deny benefits to the plaintiffs, and the plaintiffs were claiming that they had not had adequate procedural protection in the denial process.

In Alessi's case, the DPW has made no determination to deny her benefits, has not withdrawn benefits that it had granted her and has not denied her entitlement to benefits. The DPW acknowledges Alessi's right to and her urgent need for services. The procedures that Alessi claims are in violation of her due process rights are those by which the DPW requests funds from the state and those by which it allocates to the counties the funds it receives. These procedures relate not to a determination of an individual's eligibility for benefits, but rather to the funding process as a whole.10 This is not the sort of state action that triggers procedural due process protection. We can find no precedent for ordering a revision of general procedures of this type on the grounds that they violate an individual's procedural due process rights when there has been no determination to withdraw or deny rights, and the individual has been placed on a waiting list because of a shortfall of funds.11 We therefore find that the district court made an error in applying the law. Alessi's procedural due process rights were not violated by the DPW and because of that she has little chance in prevailing on the merits of her claim.

We can imagine the frustration of Cynthia Alessi's parents, who have tried every legal means to obtain the desperately needed care that Pennsylvania should be providing for their daughter and who keep running into blind alleys and dead ends. Unfortunately, their attempt to secure care for their daughter by invoking her procedural due process rights under the United States Constitution must also fail. The fourteenth amendment provides that fundamentally fair procedures must be used in a decision to terminate Alessi's benefits, and may provide that such procedures must be used in a decision to deny her benefits initially. The DPW has made neither decision. It has failed to make a good faith effort to obtain sufficient funds from the state and has failed to allocate the funds it has to the counties in a rational and equitable manner to meet projected needs. Those failures are not the sort of state action that can sustain a claim of a procedural due process violation.

For reasons that appear in the foregoing opinion, Alessi's likelihood of prevailing of the merits of her claim are slight, and the grant of the preliminary injunction will be reversed.

Each party to bear its own costs.

BECKER, Circuit Judge, concurring in the judgment in part and dissenting in part.

I join in the majority's lament as to the state of affairs that has given rise to this lawsuit. I also agree with the majority's holding that the preliminary injunction cannot stand, and (incidentally) with its underlying reasoning that the kinds of procedures Alessi has challenged are, in all probability, not regulated by the due process clause. I dissent, however, from the majority's decision to allow the injunctive claim to proceed on remand.

Although Alessi does challenge a kind of state procedure, her injunctive claims bear little relation to that challenge. She does not seek to require the state to employ different procedures; instead, she seeks an injunction requiring the state to pay for her mental health treatment. In essence, she seeks to vindicate a substantive right created by a state statute. Because I believe that the Eleventh Amendment bars a federal court from awarding such relief, I would not only dissolve the preliminary injunction, but also direct the district court to dismiss the injunctive claim forthwith.

In the preliminary injunction hearing, the DPW presented an Eleventh Amendment defense to the district court, which rejected it. Because the Department has not mentioned the Eleventh Amendment its brief before this court, I must first address the appropriateness of considering that issue nonetheless.

An Eleventh Amendment defense can be waived.1 Nonetheless, "because the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States," Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S. Ct. 3142, 3145, 87 L. Ed. 2d 171 (1985), the Supreme Court has fashioned unusually stringent waiver requirements in this context. Thus, "a State will be deemed to have waived its immunity 'only where stated "by the most express language or by such overwhelming implication ... as [will] leave no room for any other reasonable construction." ' " Id. at 239-40, 105 S.Ct. at 3146 (citations omitted). Atascadero involved the construction of a state statute, but the principle that silence or ambiguity cannot imply waiver applies more generally. Thus, "the failure of attorneys representing the state to assert the [Eleventh Amendment] defense does not waive it," P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1213 (3d ed. 1988) [hereinafter Hart & Wechsler ], even if the defense is asserted for the first time in the Supreme Court itself. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 467, 65 S. Ct. 347, 352, 89 L. Ed. 389 (1945). Under these principles, we cannot deem DPW to have waived its Eleventh Amendment defense simply by failing to include it in its brief at this stage of the proceedings.

By its express terms, the Eleventh Amendment, where applicable, creates a jurisdictional defect.2 "It deprives a federal court of power to decide certain claims against States that otherwise would be within the scope of Art. III's grant of jurisdiction." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119-20, 104 S. Ct. 900, 918-19, 79 L. Ed. 2d 67 (1984) (emphasis added); see also, e.g., Ford Motor Co., 323 U.S. at 467, 65 S.Ct. at 352 ("The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power...."). Thus, "a federal court must examine each claim to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Pennhurst, 465 U.S. at 121, 104 S.Ct. at 919. It is, to be sure, somewhat anomalous that a constitutional limitation on the federal judicial power can be waived by a party3 or abrogated by Congress,4 but that is the Supreme Court doctrine we are bound to apply. Because the Eleventh Amendment defense is jurisdictional if applicable and cannot be deemed waived on these facts, I find it appropriate, if not necessary, to consider that issue.5

In conceptualizing what purports to be a procedural due process case, it is helpful to begin by considering what Alessi is not seeking. She is not seeking the right to notice, a hearing, an attorney, or an impartial arbitrator. She does not desire to make a statement, present witnesses, discover evidence, introduce evidence, or confront adverse witnesses. She demands neither more carefully recorded factfinding, nor a more favorable burden of proof, nor a stricter standard of judicial review. In short, she does not assert the right to any kind of procedure designed to reduce the risk of an erroneous determination whether she is entitled to the benefit she seeks. The reason is simple enough: DPW concedes Alessi's entitlement to free treatment under section 4201 of the MH/MR Act, but argues that that entitlement is qualified by the availability of funds. More adjudicative "procedure," as that term is commonly understood, would clearly be pointless.

Alessi attacks assertedly "procedural" violations of a very different sort--the "procedures" by which DPW (1) requests its funds and (2) allocates those funds among the various counties. "Procedures" for requesting funds involve the tactics by which DPW persuades, cajoles, implores, or negotiates with the executive, the legislature, and various other state agencies, each of which is itself competing for the same limited pool of funds. "Procedures" for allocating funds involve the way the agency makes wholesale policy determinations about how best to apportion its unrestricted funds among various counties and programs, in light of statutory obligations that, as a practical matter, are not always jointly satisfiable. "Procedures" of this sort embrace notions fundamentally different from the more familiar adjudicative procedures that make up the conceptual universe of cases like Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), and Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

The linchpin of the majority's opinion is the proposition that the "procedures" challenged by Alessi "[are] not the sort of state action that triggers procedural due process protection." Ante at 1453. I am inclined to agree, for any suggestion to the contrary must distinguish a settled line of cases holding that the due process clause does not constrain the methods by which a state actor may legislate, promulgate rules, or develop generally applicable policies,6 the rejection of which in this context would raise troubling and difficult questions of justiciability,7 federalism,8 and the scope of a federal court's remedial equitable powers.9 Despite these reservations, however, I do not believe that the constitutionality of the "procedures" by which DPW seeks and allocates its funds is before us at this time.

Alessi alleges that these procedures violate constitutional standards. She does not seek an injunction to impose new and improved procedures on DPW in the future, however. Nor does she seek damages for harm already done to her by DPW's past conduct.10 She does seek a declaratory judgment that DPW's procedures are unconstitutional, but that claim (despite the district court's apparent receptivity towards it) is not yet before us. Primarily, Alessi seeks a permanent injunction ordering DPW to pay for her treatment, and what is before us at this time is a preliminary injunction temporarily affording that very relief. Because I believe that the Eleventh Amendment barred the district court from affording such relief--regardless of the constitutionality of the DPW's procedures for raising and allocating its funds--I would dissolve the injunction on that basis.

Under due process analysis, "[t]he categories of substance and procedure are distinct." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1492, 84 L. Ed. 2d 494 (1985). Despite familiar conceptual objections to this distinction,11 maintaining it is the only way to reconcile how the due process clause can itself create no affirmative entitlement to government services,12 but nonetheless protect substantive entitlements created and defined exclusively by state law.13 In this case, federal law supplies only procedures, for Alessi concedes that her underlying entitlement to free treatment arises, if at all, under state law. On the basis of that entitlement, Alessi sought and obtained a preliminary injunction ordering treatment, not more procedures. In any meaningful sense, her claim for treatment is "substantive," not "procedural," and therefore state, not federal. Stripped to its essentials, therefore, this case presents the question whether a federal court can order a state agency to obey state law.

In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), the Supreme Court held that the Eleventh Amendment bars suits in federal court against state officials for violation of state law. The present case is indistinguishable from Pennhurst. As in Pennhurst, the decree under consideration is an injunction ordering DPW to provide benefits that the MH/MR Act allegedly requires it to provide. This case also involves a closely related claim that is indisputably federal (the claim seeking a declaratory judgment that some of DPW's procedures are unconstitutional), but Pennhurst makes clear that the doctrine of pendent jurisdiction cannot create jurisdiction over claims--such as Alessi's injunctive claims--otherwise barred by the Eleventh Amendment. See id. at 117-23, 104 S.Ct. at 917-200. Pennhurst thus prevents federal courts from entertaining claims of entitlement against state agencies that arise under state law, and Alessi cannot avoid this rule by attempting to recharacterize what is obviously a state-law claim for subsidized treatment as a federal claim for more procedure.14

In sum, I agree with the majority's decision that the preliminary injunction cannot stand. I base this conclusion, however, not on the likely constitutionality of the challenged procedures, but on the district court's lack of jurisdiction to entertain an artfully pleaded claim for benefits under Pennsylvania's MH/MR Act. Thus, I would order the district court to dismiss Alessi's injunctive claim forthwith. Although I have expressed some doubt about whether the due process clause restricts the kind of procedures Alessi seeks to have declared unconstitutional, I believe that her declaratory judgment claim is properly before the district court at this time, and may proceed.