EDGAR enforcement matters simply cannot abide private interference of the sort contemplated by plaintiffs here.
In sum, a private right of action to enforce the EDGAR complaint procedures would not further the legislative purpose of what I will call "flexible accountability" expressed in section 1412(6). Consequently, even if section 1412(6) confers a private right of action, and even if the EDGAR regulations at issue are within the scope of that section, the EDGAR complaint procedures do not confer upon plaintiffs a private right of action to enforce them. Insofar as plaintiffs' IDEA claim is based on a direct right of action under the EDGAR complaint procedure regulations, that claim cannot survive.
VI. RIGHT OF ACTION UNDER SECTION 1983 TO
ENFORCE EDGAR PROCEDURES
Finally, I address the contention that plaintiffs' IDEA-based claim can be advanced under the alternative banner of 42 U.S.C. § 1983. Where applicable, section 1983 provides a cause of action for violation of rights created by federal statutes and regulations. Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980); West Va. Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 18 (3d Cir. 1989), aff'd, 499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).
Until recently, the framework under section 1983 was clear. In order to invoke the remedy provided by section 1983, it was necessary to demonstrate that the substantive statute or regulation being enforced was intended to confer a federal right. See West Va. Univ. Hosps., Inc. v. Casey, 885 F.2d at 18 n.1. A federal right could be identified in the statute by establishing that: (1) the provision at issue was intended to benefit the plaintiff, (2) the provision at issue reflected a binding obligation on the defendant rather than a mere Congressional preference, and (3) the plaintiff's interest was not so vague and amorphous as to be unenforceable. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S. Ct. 444, 107 L. Ed. 2d 420 (1989). Even if a federal right was identified in the statute, however, a plaintiff's cause of action under section 1983 would still fail if the statute or regulation that conferred the federal right manifested, either expressly or by implication, an intent to foreclose a private remedy such as that provided by section 1983. E.g., West Virginia Univ. Hosps., Inc., 885 F.2d at 18 n.1.
But after the Supreme Court's recent decision in Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992), I question whether section 1983 is any more lenient than the traditional Cort -based standard for direct implication applied above. I need not decide this question today, however. Even under a pre-Suter analysis, I believe that implicit in the legislative scheme of which the EDGAR procedures are a part is the intent to foreclose a private remedy, at least under the narrow circumstances presented by OSEP's current involvement here. Thus, regardless of the impact of Suter, plaintiffs' section 1983 claim may not be pursued given the present facts.
I articulate the foreclosure analysis first. Afterwards, because it may become relevant, I elaborate my concerns regarding the section 1983 landscape after Suter.
A. Section 1983 "Foreclosure" Analysis
Mindful of the admonition that intent to preclude reliance on section 1983 for a federally secured right is not to be "lightly" inferred, Wright v. Roanoke Redev. & Housing Auth., 479 U.S. 418, 423-24, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987), and aware that neither the EDGAR procedures nor section 1412(6) expressly forbid the use of section 1983 suits, I focus my inquiry on whether section 1412(6) and the EDGAR complaint procedures are part of a remedial scheme that is "sufficiently comprehensive" to demonstrate the intent to foreclose the private remedy of a section 1983 action. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981). The precise inquiry I undertake, however, is substantially narrower than this formulation would suggest. Only since the decision in Maine v. Thiboutot has there been a clear basis for using section 1983 to enforce federal statute-based claims such as those plaintiffs advance here. In his dissent in that case, Justice Powell warned that such use of section 1983 represented "a major new intrusion into state sovereignty under our federal system." Maine v. Thiboutot, 448 U.S. at 33. Thus, the precise question before me is "just how far such an intrusion should be carried." Carelli v. Howser, 923 F.2d 1208, 1213 (6th Cir. 1991). I conclude that, under the circumstances of this case, use of the section 1983 private remedy to enforce the EDGAR complaint procedures at issue would extend the judicial oversight function beyond that intended under those procedures. Cf. Carelli v. Howser, 923 F.2d at 1215.
The Secretary is charged by statute with supervising state-level entities' compliance with the terms of section 1412(6) and other statutory provisions of the IDEA. 20 U.S.C. § 1416. The EDGAR complaint regulations specifically provide for appeal by aggrieved parties to the Secretary. 34 C.F.R. § 300.661(d) (1993). Monitoring and complaint resolution functions under the IDEA, including oversight of the EDGAR procedures themselves, are committed to the Secretary through the General Education Provisions Act. See 20 U.S.C. § 1232c(a) (Secretary may require state to submit plan for monitoring compliance; such plan may include complaint resolution procedures); 20 U.S.C. § 1221e-3(a)(1) (Secretary authorized to promulgate regulations governing operation of programs under IDEA and other funding statutes). Section 1413 of the IDEA, which requires periodic compliance review of state plans, contains a further source of authority enabling the Secretary to monitor the EDGAR complaint procedures. 20 U.S.C. § 1413(c) (Secretary shall disapprove submitted plan or plan modification that does not meet statutory requirements). Using this authority, the Secretary has delegated to OSEP the responsibility of conducting state-level audits, investigating complaints of state-level entities, and initiating an escalating series of enforcement measures against recalcitrant SEAs that range from informal resolution procedures to administrative cease-and-desist hearings to full-blown litigation, either in the form of a funds-withholding proceeding or an injunction-seeking proceeding arising out of a Justice Department referral. See Wegner, Future Rights and Remedies, 17 J.L. & Educ. at 690; Will-Trible Letter, Handicapped Educ. L. Rep. (CRR) 211:397 (citations omitted).
And these administrative mechanisms are not the only IDEA remedies relevant in the foreclosure analysis. In addition, the statute codifies an express private right of action in the due process provisions of the IDEA. 20 U.S.C. § 1415. This due process right of action, which is initiated by an IEP-related grievance, confers jurisdiction on a reviewing court to adjudicate grievances based on any provision of the IDEA -including grievances arising from the EDGAR complaint regulations -- as long as such grievances are implicated in the context of an individual dispute over a child's IEP. See Georgia Ass'n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1573 (11th Cir. 1983) ("There is nothing in [section 1415] to suggest that the due process rights of a parent under the [IDEA] are to be curtailed merely because the challenge to the IEP happens to implicate a portion of a state's plan."). Moreover, the express right of action under the due process mechanism is accessible without prior exhaustion of the EDGAR complaint procedures, at least where the administrative procedures of the due process system itself have been exhausted. See Mrs. W. v. Tirozzi, 832 F.2d 748, 758 (2d Cir. 1987). Where exhaustion of the EDGAR complaint procedures would be required for a due process review, it can be excused where, as plaintiffs allege here, there is persistent undue delay on the part of state officials in resolving the predicate EDGAR complaints. See Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1308 & n.9 (9th Cir. 1992) (refusing to excuse exhaustion based on state's failure to respond to 60-day time limit in EDGAR regulations where state had requested extension and had indicated that report would be forthcoming, but noting that persistent failure to respond in timely manner would excuse exhaustion requirement in due process setting).
This remedial scheme might not be "sufficiently comprehensive" to imply preclusion of private enforcement for every right conferred by section 1412(6). Nonetheless, any determination of its sufficiency as to preclusive intent here cannot be divorced from the "essentially cooperative federal-state relationship" created by the IDEA and reflected, in part, in the EDGAR complaint procedures that provide the right to be remedied here. As discussed above with respect to the direct implication of a private remedy, SEA accountability is not the only feature of the EDGAR complaint procedures; SEA autonomy and operational flexibility are characteristic of those procedures as well. See Wegner, Future Rights and Remedies, 17 J.L. & Educ. at 694. Given this mixed nature of the right plaintiffs seek to enforce, I find that the foregoing administrative mechanism is comprehensive enough to manifest intent to preclude a private remedy to enforce the EDGAR complaint procedures under the circumstances presented here. A contrary result would do violence to the balance of "flexible accountability" embodied in those procedures.
Integral to my holding that a private action should be foreclosed here is the Sixth Circuit's reasoning in Carelli v. Howser, 923 F.2d 1208, 1215 (6th Cir. 1991). There, the court concluded that Congress intended to foreclose a section 1983 remedy to redress violations of certain child support enforcement provisions under Title IV-D of the Social Security Act, codified at 42 U.S.C. §§ 651-669. In reaching that conclusion, the court found significant that plaintiffs had not alleged any acts of noncompliance with the relevant state plan other than those the Secretary of Health and Human Services had already unearthed in an audit and ordered corrected. Carelli, 923 F.2d at 1215. The court characterized plaintiffs' suit as little more than a request for a "hurry up" order, which the court described with the following trenchant remarks:
What we envision happening would be an order coming from the court directing the State of Ohio to increase staff size, do a better job of establishing priorities, and setting time limits for performing required tasks as well as responding to calls for service. In short, the court's order would address all the shortcomings the Secretary [of Health and Human Services] has already ordered corrected.
Id. (footnote omitted).
As in Carelli, the relief plaintiffs seek here, reduced to its essence, is a "hurry up" order to expedite remediation of deficiencies that OSEP has already identified and ordered corrected. See Report of Special Master, App. C. Thus, my ruling is "akin to an abstention order, although [I] do not label it as such." Carelli, 923 F.2d at 1216. But see Albiston v. Maine Comm'r of Human Servs., 7 F.3d 258, 268-69 (1st Cir. 1993) (declining to follow Carelli 's conclusion that it is "unlikely that Congress intended [private parties] to occupy the same ground at the same time and in the same manner as the Secretary" of Health and Human Services).
The amendment of the IDEA to add section 1415(f), which permitted section 1983 suits under the statute in appropriate circumstances, does not alter my conclusion. As noted above, the legislative history of section 1415(f) itself plainly reveals that the amendment was not intended to affect the EDGAR complaint procedures. See H.R. Rep. No. 296, 99th Cong., 1st Sess., at 7-8 (1985). Thus, the addition of section 1415(f) cannot be viewed as opening the door to section 1983 suits to enforce the EDGAR complaint procedures.
* * * * *
I am not without empathy for plaintiffs' plight. I wish to see DOC function properly and provide effective redress for plaintiffs' grievances. My ruling, therefore, is predicated on my hope that a satisfactory result can be achieved without judicial compulsion in light of OSEP's ongoing attempts to resolve the problems at issue here. I intend to allow these efforts to run their course, which, as I understand it, will happen soon enough, sometime in early 1995. See Report of Special Master, at 9. But if plaintiffs are still not satisfied with the functioning of DOC's complaint procedures by the time OSEP's involvement here is terminated or after June 30, 1995, whichever is earlier, I will allow them to re-assert their section 1983 claim then.
B. Section 1983 Claims After Suter v. Artist M.
I rest my decision on the foreclosure analysis as applied in the circumstances presented here. Because plaintiffs may re-assert their section 1983 claim later, however, I feel compelled to warn them that, as I read it, the Supreme Court's decision in Suter v. Artist M. has substantially changed the landscape of section 1983 law. Specifically, I believe that after Suter the standard for advancing a private remedy under section 1983 is no more lenient than the traditional Cort -based standard for direct implication applied earlier in this opinion.
Suter, like this case, involved a federal assistance program designed to encourage certain behavior on the part of states, the Assistance and Child Welfare Act of 1980. That program attempted to induce states to raise the quality of care for children in state foster-care programs. At issue in Suter was a provision that required participating states to submit a plan to the Secretary of Health and Human Services that provided for the state to make "reasonable efforts" to prevent removal of a child from the home before utilizing the foster-care option.
In a groundbreaking 7-2 decision by Chief Justice Rehnquist, the Court held that the "reasonable efforts" clause was not enforceable by private parties under section 1983. The majority formulated the critical inquiry thus: "Did Congress, in enacting the Adoption Act, unambiguously confer upon [the plaintiffs] a right to enforce the requirement that the State make 'reasonable efforts' to prevent a child from being removed" from the home? Suter, 112 S. Ct. at 1367 (emphasis added). Answering in the negative, the majority concluded, in a holding difficult to reconcile with its earlier holding in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), that the only clear mandate of the "reasonable efforts" clause was that participating states adopt a plan with the requisite features, not that they be accountable to private parties for failure to execute that plan. Suter, 112 S. Ct. at 1371-74 (Blackmun J., dissenting). In addition to a close reading of the text and history of the provision at issue, the majority found significant that other sections of the statute expressly provided an alternative, administrative mechanism to enforce the "reasonable efforts" clause such that the latter could not be considered a "dead letter." Suter, 112 S. Ct. at 1368-69.
As the dissent observed, the court silently overruled years of jurisprudence under section 1983, shifting the burden onto the plaintiff to prove that the statutory provision at issue confers a private remedy as well as a private right. Suter, 112 S. Ct. at 1376 (Blackmun J., dissenting) (majority has "inverted the established presumption that a private remedy under § 1983 unless 'Congress has affirmatively withdrawn the remedy.'"). Effectively, Suter collapses the section 1983 standard into the traditional standard under Cort v. Ash for direct implication of a private right of action. See Lisa L. Frye, Note, Suter v. Artist M. and Statutory Remedies Under Section 1983: Alteration Without Justification, 71 N.C.L. Rev. 1171, 1201 (1993) ("After Artist M., plaintiffs bringing suit under § 1983 shoulder virtually the same burden . . . as private plaintiffs who attempt to persuade the Court to find an implied cause of action.").
It would appear that Suter, then, has produced something of a tectonic movement in section 1983 litigation. Indeed, even those circuits that have shrunk from such a conclusion have not failed to recognize that Suter has "weakened earlier precedents in certain important respects" and "reconfigured" the previous framework. Stowell v. Ives, 976 F.2d 65, 68 (1st Cir. 1992). See also Resident Council of Allen Parkway Village v. United States Dep't of Hous. & Urban Dev., 980 F.2d 1043, 1051 (5th Cir.) (Suter "calls into question the continued viability of the [previous] framework"), cert. denied, 114 S. Ct. 75, 126 L. Ed. 2d 43 (1993); Arkansas Medical Society Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir. 1993) (Suter placed "great emphasis on the fact that rights must be 'unambiguously' conferred to be enforceable.").
And while the Third Circuit has not directly addressed this admittedly controversial issue, it too appears inclined toward an appreciation of Suter 's broader ramifications. See United States v. Accounts Nos. 3034504504 & 144-07143, 971 F.2d 974, 982 (3d Cir. 1992) (observing, based on Suter, that Supreme Court now seems "especially reluctant to imply provisions that are ordinarily expressly stated into statutes that do not mention them."), cert. denied sub nom. Friko Corp. v. United States, 113 S. Ct. 1580, 123 L. Ed. 2d 148 (1993). See also Baby Neal v. Casey, 821 F. Supp. 320, 326, 328 (E.D. Pa. 1993) (emphasizing Suter 's formulation of test as whether statute "unambiguously confers" private right of action on plaintiff, and finding no cause of action under provisions of Adoption Act not addressed in Suter), remanded by, 43 F.3d 48, 1994 WL 699019 (3d Cir. 1994) (reversing district court's earlier order denying class certification, but declining to address issue of private right of action).
All this has possibly dispositive implications for plaintiffs' section 1983 claim if they should re-assert it. Plaintiffs, seizing upon Suter 's consideration of the mandatory nature of the statutory language at issue and the specificity of the relevant regulations, argue that section 1412(6) and the EDGAR complaint regulations should be interpreted to allow a section 1983 action here even under a post-Suter analysis. Pls.' Br. in Resp. to Order of Oct. 25, 1994, at 8-9. But as discussed at length above, I conclude that, under the Corestates /Angelastro framework for direct implication of a right of action to enforce a regulation, a private right to enforce the EDGAR complaint procedures would not further the legislative purpose of "flexible accountability." Thus, I am not inclined to read the regulatory provisions at issue here as "unambiguously conferring" the private right of action plaintiffs claim. Accordingly, while I expressly refrain from so ruling, I observe that, even if plaintiffs' section 1983 claim had merit before Suter, I have strong reservations about whether it still does. Suter, 112 S. Ct. at 1367.
For the foregoing reasons, I conclude that plaintiffs' are without a private right of action to enforce the EDGAR complaint procedures directly under those regulations themselves. I also conclude that, under the current circumstances of this case, plaintiffs may not use section 1983 to enforce the EDGAR complaint procedures, although plaintiffs are free to raise the section 1983 claim again after the termination of OSEP's current efforts to rectify DOC's deficiencies or after June 30, 1995, whichever is earlier. Accordingly: (i) plaintiffs' motion for summary judgment on the direct IDEA claim is denied, and summary judgment on that claim is entered in favor of PDE; (ii) summary judgment on plaintiffs' section 1983 claim is entered in favor of PDE, and that claim is dismissed without prejudice to re-assert it in accordance with the terms of this opinion; and (iii) plaintiffs' motion to certify these claims for class treatment is denied as moot. Finally, while I do not address either the merits of plaintiffs' Rehabilitation Act claim or the appropriateness of that claim for class treatment, I defer any ruling on plaintiffs' motion for class certification with respect to that claim until such time as the argument on that claim is further developed and I can determine whether summary judgment would be suitable.
ANITA B. BRODY, J.