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January 3, 1995

BETH V., a Minor, et al.

The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 January 3, 1995

 This is an action to enforce compliance with federal regulations located at 34 C.F.R. §§ 300.660-.662 (1993), which set forth certain complaint resolution procedures states must provide under the federal Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485 (the "IDEA"). Plaintiffs seek to enforce these complaint procedure regulations under the IDEA itself (the "direct IDEA claim" or the "IDEA claim") and under 42 U.S.C. § 1983 (the "section 1983 claim"). Before me are plaintiffs' motions for class certification as to both claims and for summary judgment as to the IDEA claim.

 I find that plaintiffs' IDEA and section 1983 claims fail at the threshold because plaintiffs do not have a private right to enforce the particular regulatory provisions at issue here. I decline to imply a right of action in favor of private parties such as plaintiffs directly under the regulations at issue, and I find that, in light of the current efforts of the United States Secretary of Education ("the Secretary") to resolve the very problems that are the impetus for this lawsuit, plaintiffs are foreclosed from enforcing those regulations under 42 U.S.C. § 1983. Accordingly, I will: (i) deny plaintiffs' motion for summary judgment on the direct IDEA claim, and enter summary judgment on that claim in favor of defendants; (ii) enter summary judgment in favor of the defendants on the section 1983 claim on my own initiative, and dismiss that claim without prejudice to re-assert it, if necessary, when the Secretary's involvement in the matters at issue is terminated or after June 30, 1995, whichever is earlier; and (iii) deny as moot plaintiffs' motion to certify for class treatment the IDEA claim and the section 1983 claim.

 I. ABBREVIATIONS USED IN THIS OPINION Because this opinion contains more than the usual number of abbreviated terms, I offer the following glossary at the outset for ease of reference: DOC Division of Compliance (a unit of the Pennsylvania Department of Education) EDGAR Education Department General Administrative Regulations IDEA Individuals with Disabilities Education Act IEP Individualized Education Program OSEP Office of Special Education Programs (a unit of the United States Department of Education that reports to the federal Secretary of Education) PDE Pennsylvania Department of Education SEA State Educational Agency Secretary United States Secretary of Education


A. The Parties and the Claims

 Plaintiffs are several children who need special education and their parents or guardians, and Parents' Union for Public Schools, a public advocacy group that represents disabled children and their families in special education matters. In August of 1993, plaintiffs filed this action against the Pennsylvania Department of Education and its secretary, Donald M. Carroll, Jr. (collectively "PDE"), alleging violations of the IDEA, 20 U.S.C. §§ 1400-1485, and its implementing regulations *fn1" ; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations; and 42 U.S.C. § 1983. Plaintiffs also sued in his official capacity the United States Secretary of Education, Richard W. Riley, but they later dismissed the Secretary from the suit.

 Plaintiffs have each filed with PDE administrative, education-related complaints under the Commonwealth's special education system. The gravamen of their claim here is that the Division of Compliance ("DOC"), the unit of PDE responsible for handling such complaints, has failed to maintain a complaint resolution system that complies with certain regulatory requirements now codified under the IDEA at 34 C.F.R. §§ 300.660-.662 (1993). Specifically, plaintiffs cite as the principal deficiencies in DOC's operation the following alleged violations of these regulations: (i) DOC fails to resolve complaints within the required 60-day time limit; (ii) DOC fails to monitor and enforce the corrective action that it orders subordinate agencies to take; and (iii) DOC fails to address all allegations raised in complaints.

 Plaintiffs seek declaratory and injunctive relief that is both intrusive and detailed. They ask me to compel PDE to: (i) take immediate measures to ensure that DOC's complaint system meets all applicable requirements, including the 60-day time limit; (ii) devise and submit for my approval a plan to ensure such compliance; (iii) file semi-annual reports with me and with plaintiffs for the next five years addressing, in part, the nature and number of complaints filed, the time necessary to resolve complaints, and the methods used by DOC to resolve complaints; and (iv) publicize the availability and procedures of DOC's complaint system.

 B. Proceedings in This Case

 On November 15, 1993, plaintiffs moved for certification of the following proposed class as to all claims pursuant to Fed. R. Civ. P. 23(b)(2):

All Pennsylvania children, and their parents and/or other representatives, who since July 1, 1990, have used the [Pennsylvania Department of Education's special education] complaint system, or may in the future use that system.

 When I first considered the issue of class certification, I referred the matter to a special master, Alfred W. Putnam, Jr., Esq. (the "Special Master"), for a report and recommendation. The reasons prompting my referral were detailed in my memorandum that accompanied the order. Beth V. v. Carroll, 155 F.R.D. 529 (E.D. Pa. 1994) (attached hereto as "Appendix"). On August 31, 1994, the Special Master filed his report, to which both plaintiffs and PDE submitted responses.

 Among the Special Master's findings were those concerning the causes of DOC's alleged deficiencies and the status of cooperative efforts undertaken by the Secretary and PDE to remedy the problems. Specifically, the Special Master found that while DOC does have in place procedures that meet federal requirements, PDE concedes that due to understaffing DOC has been unable to meet the 60-day time limit for resolving complaints, which on average require 80 to 90 days to resolve. Report of Special Master, at 3. He also found that, since the commencement of this lawsuit, the federal Office of Special Education Programs ("OSEP"), which reports to the Secretary, has issued a final document (the "OSEP Report") addressing the principal deficiencies of DOC at issue here. Id. at 5. After expressly noting DOC's untimeliness and its failure to resolve all allegations, Report of Special Master, App. C, at 8, the OSEP Report concludes with a detailed order to remedy these problems. Report of Special Master, App. C, at 49. *fn2" Included in this order are (i) specific procedures by which PDE must verify that it has corrected the deficiencies cited and (ii) specific deadlines for complying with the OSEP order. Id.

 In response to the OSEP Report, the Special Master found, PDE has begun to undertake compliance efforts, producing the following proposals: "Plan for Recruiting, Scheduling and Retaining Personnel to Ensure Investigation and Resolution of Complaints" and "Procedures for Ensuring All Allegations Are Resolved." Report of Special Master, at 7. Observing that PDE hopes to be in compliance with the OSEP Report by early next year, the Special Master reported that OSEP would continue to monitor PDE if necessary, while the Secretary would undertake his periodic compliance review as mandated by statute. Id. at 9. *fn3"

 After the Special Master filed his report, plaintiffs moved for summary judgement on their IDEA claim. On October 25, 1994, I issued an order raising, sua sponte, the threshold question of whether a private right of action existed under either the regulatory provisions that plaintiffs seek to enforce or section 1983, and requiring the parties to brief the issue. Beth V. v. Carroll, 1994 U.S. Dist. LEXIS 15449, No. 93 Civ. 4418, 1994 WL 594267 (E.D. Pa. Oct. 25, 1994). Both plaintiffs and PDE have submitted papers in response to that order and in reply to each other's submissions. *fn4"


 The parties have stipulated to certification of the proposed class, and PDE has admitted the core allegation supporting plaintiffs' summary judgment motion, that is, PDE's inability to resolve complaints within the prescribed 60-day period. Yet I find that plaintiffs' IDEA claim fails at the outset because there is no private right of action to sue on this claim directly under the regulations at issue, nor is there, under the narrow circumstances of this case, an indirect right to sue on it under 42 U.S.C. § 1983. *fn5" I thus conclude that: (i) summary judgment should be granted in favor of PDE rather than plaintiffs on the IDEA claim; (ii) summary judgment should be granted for defendants on plaintiffs' section 1983 claim, and that claim should be dismissed without prejudice; and (iii) I need not address the class certification issues with respect to these claims because such certification issues are moot.

 Summary judgment is appropriate where there are no disputed material facts. E.g., Aetna Casualty & Surety Co. v. DeBruicker, 838 F. Supp. 215, 217 (E.D. Pa. 1993), aff'd, 30 F.3d 1484 (3d Cir. 1994). As developed below, the foregoing facts regarding OSEP's involvement in this case and the results of that involvement, largely findings of the Special Master, are the only facts necessary to resolve the dispositive private right of action questions in this case. *fn6" These facts are not contested. As to the Special Master's findings based on the OSEP Report, plaintiffs themselves cite that report in support of their summary judgment motion. See Pls.' Proposed Findings of Undisputed Facts P 67 (describing noncompliance found by OSEP and documented in OSEP Report), PP 79-80 (description of OSEP audit and of finding in OSEP Report that DOC fails to resolve all allegations raised in complaints). Nor do plaintiffs take issue with the fact that PDE has produced in response to the OSEP Report the above-mentioned documentary proposals regarding recruiting and procedures for full complaint resolution. Report of Special Master, at 7. Because these particular findings are not contested, I find that a hearing upon them is not necessary, and I hereby adopt them. *fn7" Plaintiffs also accept PDE's representations, supra, at n.3, concerning its more aggressive enforcement posture of late. See Pls.' Reply to Defs.' Resp. to Pls.' Mot. for Summ. J., at 8 n.9 ("Plantiffs applaud any recent efforts by DOC to reform its practices and procedures."). Finally, plaintiffs have not disputed PDE's update as to hiring developments. See supra, at n.3. What plaintiffs dispute, of course, is the legal import of these facts.

 Where, as here, a court is already "engaged in the process of determining whether there is a genuine issue of material fact, and the parties have had the opportunity to present evidence on the issues," the weight of authority allows summary judgment in favor of a nonmovant such as PDE if warranted. Weil Ceramics & Glass, Inc. v. Dash, 618 F. Supp. 700, 716 (D.N.J. 1985) (citing 10A Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice & Procedure § 2720 (1983), rev'd on other grounds, 878 F.2d 659 (3d Cir.), cert. denied, 493 U.S. 853, 107 L. Ed. 2d 114, 110 S. Ct. 156 (1989). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986) ("District courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence."); Caputo v. Fauver, 800 F. Supp. 168, 172 (D.N.J. 1992) (similar), aff'd, 995 F.2d 216 (3d Cir. 1993). Here, plaintiffs initiated my consideration of the issues by moving for summary judgment on the IDEA claim. Because I felt that the parties had overlooked the threshold questions of whether a private right of action existed under the regulations at issue or under section 1983, I specifically requested that these questions be addressed. Beth V. v. Carroll, 1994 U.S. Dist. LEXIS 15449, No. 93 Civ. 4418, 1994 WL 594267 (E.D. Pa. Oct. 25, 1994) Plaintiffs then briefed these questions thoroughly, appreciating the significance, I must presume, of all uncontested facts in the record that bear upon them. There can be no assertion that plaintiffs were not put on notice of the possibility that this case might be decided against them on the grounds that no private right of action exists here to enforce the regulations at issue. Thus, as a procedural matter, summary judgment may be granted against plaintiffs and in favor of PDE. See Weil Ceramics & Glass, Inc. v. Dash, 618 F. Supp. at 716.

  Moreover, because I conclude that PDE is entitled to summary judgment on the IDEA and section 1983 claims, I may properly decline to reach the related class certification issues before me and dismiss that motion as moot with respect to those claims. See Thompson v. County of Medina, Ohio, 29 F.3d 238, 241 (6th Cir. 1994) (court has discretion to decide summary judgment motion before class certification motions where doing so will protect both parties and court from further litigation) (citations omitted); Bogue v. Vaughn, 1993 U.S. Dist. LEXIS 17058, No. 91 Civ. 5046, 1993 WL 497851, at *1, *12 (E.D. Pa. 1993) (granting summary judgment motion and therefore denying class certification motion); Haas v. Boeing Co., 1992 U.S. Dist. LEXIS 13240, No. 90 Civ. 7414, 1992 WL 221335, at *8 (E.D. Pa. Sept. 4, 1992) (granting summary judgment motion and denying as moot class certification motion), aff'd, 993 F.2d 877 (3d Cir. 1993). *fn8" Thus, I confine my discussion to the dispositive questions of whether private parties such as plaintiffs may, in the circumstances presented here, sue to enforce the regulatory provisions at issue, under either the regulations themselves or 42 U.S.C. § 1983.


 A. The Statute

 The IDEA is a comprehensive legislative scheme that furnishes federal funds to states to assist in providing special education and related services to children with disabilities. It represents the current state of Congressional efforts spanning nearly three decades to promote the education of disabled children, and was enacted to combat the perception that a majority of such children "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" H.R. Rep. No. 94-332, 94th Cong., 1st Sess. 2 (1975); Board of Educ. of Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 179, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982) (tracing evolution of statute). Recognizing the traditional role of the states in formulating education policy, Rowley, 458 U.S. at 208 n.30, Congress adopted an essentially cooperative structure, "implicating fundamental principles of state/federal relations" and aptly described as "cooperative federalism." Norton School Comm. v. Massachusetts Dep't of Educ., 768 F. Supp. 900, 902 (D. Mass. 1991) (citing Burlington v. Department of Educ., 736 F.2d 773, 783 (1st Cir. 1984), aff'd, 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985)).

 As a condition of funding under the IDEA, states must have in effect a policy that executes the principal goal of the act, which is to "assure[] all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1); Oberti v. Board of Educ. of Borough of Clementon School Dist., 995 F.2d 1204, 1213 (3d Cir. 1993). That policy must be reflected in a state plan submitted to and approved by the Secretary, which describes in detail the goals, programs and timetables with respect to the education of disabled children in the state. 20 U.S.C. § 1413; Rowley, 458 U.S. at 181. Participating states must also provide certain assurances to the Secretary as a condition of funding, including the assurance that (i) the state-level agency charged with administering the IDEA (the "State Educational Agency" or "SEA") will assume responsibility for compliance with the IDEA's terms and (ii) all IDEA-funded programs under the administration of local- and intermediate-level education agencies within the state will be placed under the general supervision of the State Educational Agency. 20 U.S.C. § 1412. If states are found not in compliance with the mandates of the statute, the Secretary is authorized to begin proceedings leading to a termination of funding. 20 U.S.C. § 1416. A state whose funding is so terminated may seek review of the Secretary's decision in the federal Court of Appeals for the circuit encompassing that state. 20 U.S.C. § 1416.

 The "centerpiece" of the IDEA is the "individualized education program," or IEP, which consists of a detailed statement "summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 173 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989). To protect the integrity of the process surrounding the IEP, the primary educational vehicle under the statute, the IDEA contains elaborate procedural machinery. The most prominent aspect of this machinery is the "due process" hearing procedure, which allows for prosecution of complaints about any aspect of the IEP process. 20 U.S.C. § 1415(b)(2). This procedure provides for an initial hearing and administrative appeal, 20 U.S.C. § 1415(c), and culminates in the right to an appeal to a federal district court or state court. 20 U.S.C. § 1415(e)(2). *fn9" Thus, for grievances arising out of the due process system, there is an express right to bring an action in federal court. 20 U.S.C. § 1415(e).

 B. Administrative Provisions

 Comprising a supporting administrative mechanism are the complaint resolution procedures at issue here. See, e.g., Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1308 (9th Cir. 1992) (complaint resolution procedures comprise administrative scheme separate from due process procedures); Stauffer v. William Penn School Dist., 829 F. Supp. 742, 744 n.4 (E.D. Pa. 1993) (same); see generally Judith Welch Wegner, Educational Rights of Handicapped Children: Three Federal Statutes and an Evolving Jurisprudence. Part II: Future Rights and Remedies, 17 J.L. & Educ. 625, 690-91 (1988) (discussing administrative alternatives under predecessor of IDEA) [hereinafter, "Future Rights and Remedies"]. In part, these procedures require State Educational Agencies to adopt written procedures for receiving and resolving complaints, to conduct on-site investigations if necessary, and to resolve complaints within 60 days absent exceptional circumstances. 34 C.F.R. §§ 300.660-.661 (1993). A complainant is expressly afforded the right to request review of the State Educational Agency's decision by the United States Secretary of Education. 34 C.F.R. § 300.661(d).

 These complaint resolution procedures have undergone three distinct codification phases. Originally, they were promulgated under the IDEA's predecessor statute and located at 45 C.F.R. § 121.109 (1972), *fn10" then moved to 45 C.F.R. § 121a.14 (1975), and later amended and moved to 45 C.F.R. § 121a.602 (1977). *fn11" In the second phase, they were removed from the statute altogether and re-issued under the Education Department General Administrative Regulations ("EDGAR"), where they were first codified at 45 C.F.R. §§ 100b.780-.781 (1980) and subsequently moved to 34 C.F.R. §§ 76.780-.782 (1983). *fn12" Finally, they were placed back into the regulations under the IDEA as part of the dismantling of EDGAR, and they are now at 34 C.F.R. §§ 300.660-.662 (1993). *fn13" See Mrs. W. v. Tirozzi, 706 F. Supp. 164, 167-68 (D. Conn. 1989) (describing partial history of complaint resolution procedures); Laughlin v. School Dist. No. 1, Multnomah County, Or., 69 Ore. App. 63, 686 P.2d 385, 390 (Or. App.) (same), adhered to on reh'g, 689 P.2d 334 (Or. App. 1984), appeal denied, 695 P.2d 50 (Or. 1985). For the sake of clarity, I will refer to these complaint procedures as the "EDGAR" procedures to distinguish them from the IDEA statutory "due process" procedures described above. I will cite to their current section numbers in the Code of Federal Regulations, however, except where the context requires otherwise.

 * * * *

 With the foregoing in mind, I turn to the question of whether plaintiffs possess a private right of action to enforce the EDGAR provisions at issue here, either directly under those regulatory provisions or indirectly through section 1983. I address these two possibilities seriatim.


 I must determine whether a private right to enforce the EDGAR regulations at issue should be implied directly under those regulations. The Third Circuit has established and recently confirmed the framework for determining whether a private right of action should be implied under a regulation, laying out a three-pronged test that asks: (i) whether the statute under which the regulation was promulgated permits the implication of private right of action under Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), and its progeny; (ii) whether the agency rule is properly within the scope of the enabling statute; and (iii) whether implying a private right of action will further the purpose of the enabling statute. In re Corestates Trust Fee Litig., 39 F.3d 61, 67-68 & n.4 (3d Cir. 1994) (citing Angelastro v. Prudential Bache Sec., Inc., 764 F.2d at 939, 947 (3d Cir.) cert. denied, 474 U.S. 935 (1985)); accord Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir. 1984). As developed below, I conclude that the EDGAR complaint procedures plaintiffs seek to enforce do not give rise to a private right of action under this test.

 A. Can a Private Right of Action Be Implied under the Enabling Statute?

 The initial inquiry is whether, under Cort v. Ash and its progeny, a private right of action can be implied under the enabling statute pursuant to which the EDGAR complaint procedures were promulgated. The test laid down in Cort and later cases inquires: (i) whether plaintiffs are part of the class for whose especial benefit the statute was enacted; (ii) whether there was any indication of Congressional intent to deny or create a private right of action; (iii) whether implication of a private right of action is consistent with the underlying purpose of the statute; and (iv) whether the matter is traditionally one relegated to the states. Cort v. Ash, 422 U.S. at 78. The second Cort v. Ash factor, legislative intent, is accorded the greatest weight. Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). "Specifically, a lack of evidence of legislative intent to create a private right of action, either express or by implication, can by itself provide the answer that a private right of action should not be implied." In re Corestates Trust Fee Litig., 39 F.3d at 68. The EDGAR regulations themselves, moreover, cannot aid in answering the question of whether a private right of action exists under the enabling statute. See id. (citations omitted).

 Plaintiffs press 20 U.S.C. § 1412(6) as the substantive statutory provision authorizing the EDGAR complaint procedure regulations at issue here. Thus, I concentrate my attention on section 1412(6) and on the legislative intent behind that section. Section 1412(6) provides:

§ 1412. Eligibility Requirements.
In order to qualify for assistance under this subchapter in any fiscal year, a State shall demonstrate to the Secretary that the following conditions are met:
. . . .
(6) The State educational agency shall be responsible for assuring that the requirements of this subchapter are carried out and that all educational programs for children with disabilities within the State, including all such programs administered by any other State or local agency, will be under the general supervision of the persons responsible for educational programs for children with disabilities in the State educational agency and shall meet education standards of the State educational agency. This paragraph shall not be construed to limit the responsibility of agencies other than the educational agencies in ...

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