Kelly v. Parents United for the District of Columbia Public Schools

*, Acting Judge, Before FERREN Chief SCHWELB, PRYOR, Judge, Associate Judge. Senior *Judge argument. FERREN was an Associate of this court at the time of His status

FERREN, Acting Judge: implied private that has an Chief Parents United Assign- of the action to enforce Nurse August Parents United for the ment Act and that the District violated that brought D.C. Public Schools1 suit to enforce summary judg- Act. affirm We therefore of the District Public School Nurse Columbia ment Act and trial court’s under the the Assignment § Act of D.C.Code 31-2421 however, Because, permanent injunction. (1988), seq. declaratory requesting et both providing a com- of action — injunctive Assign- and relief.2 The Nurse plete remedy gives in the District’s courts — requires assign to ment the District due, process Parents all the that United elementary registered to nurse each and sec- must conclude that Parents United has ondary specified school for a of number deprived property right not been of a and, further, per to assign hours week either and, result, process of as a cannot law registered nurse or a certified athletic § recover there- under U.S.C. 1983. We every school-sponsored to trainer attend ath- fore must reverse the trial court order (1) alleged letic event. Parents United awarding attorney’s fees under 42 U.S.C. Assign- District the the had violated Nurse supra § 1988. note 5. See Act, ment im- which Parents United had an enforce, plied private right action to of and I. The Nurse Act of 1987 (2) implement the failure to District’s The Council of the District of Columbia only that Act the Act violated not itself but enacted Act in 1987 in the also the due clause of the Constitu- shortage of effort to the severe tion, recovery permitting under 42 U.S.C. schools, public nurses in as well the District’s (1982).3 § 1983 personnel as the lack of medical at school- summary granted judgment The trial court See Council sponsored events. athletic of statutory for Parents on and United both COMM. COLUMBIA, THE HUMAN DISTRICT OF ON claims, granted perma- the constitutional4 Report Bill SeRvs., on The DistRict Assign- injunctive ordering compliance nent relief of Columbia Public School NuRSe (June 1987) requirements with both and 2-3 at ment Act of (hereafter Report 7-47). attorney’s pur- awarded fees The Act Bill (1982).5 provided: § agree suant to U.S.C. We Acting changed other on March of United States or within the person Chief jurisdiction thereof of any deprivation rights, privileges, or immunities secured by Public 1. Parents United for the D.C. Schools is a laws, shall liable to the Constitution be organization seeks to improve injured in an action at suit in law, party equity, District’s school Parents of sever- system. proceeding or for redress. other proper al children who attend the District’s public joined schools United as We Parents plaintiffs. Although the trial court concluded all refer as "Parents plaintiffs, collectively, failing § District had violated provide United.” nursing the schools, services in it found adequate §no for the failure to 1983 violation District's originally named the 2. Parents United athletic nurses provide school-sponsored Columbia, and the Director of the Mayor, events. reasoned that, The court because as Human Services defendants. Department budget District had submitted necessaiy Beginning 1991, the Council of with fiscal year regarding with the the Act provisions transferred the Columbia responsi- athletic the administrative failure to im- events, implementing bility was these not “a deliberate plement provisions of Human from Services Department disregard the state's fundamental 31-2421(g) § process" Board of Education. See D.C.Code § (1993). amounting to a 1983 violation. As a Parents United added the result, Board of Education and the Superintendent time. Schools as defendants at that We refer to (1982) U.S.C. provides part: "the defendants, all District.” collectively, proceeding or to enforce a any provi- 3. 42 U.S.C. sion of sections provides part: title, court, 1986 of this ... in its discre- color of who, statute, under Every person any prevailing tion, other allow regulation, usage, ordinance, custom, party, any States, than the United reasonable of Columbia, attorney’s State or or the District Territory subjects, subjected, fee as of the costs. citizen causes to part (a) registered 26, 1990), A assigned (July nurse shall be to District.” D.C.Law 8-149 (“District”) each District of Columbia (emphasis ele- D.C.Code add- 31-2421© mentary secondary public ed); D.C.Reg. see 37 per during minimum of 12 hours week provisions governing Council also added during each semester and summer school types personnel of medical to be if a program operated. summer school particular D.C.Reg. athletic events. See 37 (b) Finally, per regis- The minimum hours at 2208-09.7 week of Council added sub- (g), tered nurse services at responsibil- each school shall section which transferred the per ity increase from 12 to 16 implementing hours week the Act from the De- beginning year partment after December of Human Services to the Board of per The minimum regis- 2209, 3718; hours week of D.C.Reg. Education. See (1993). tered nurse services at each school shall 31-2421(g) § D.C.Code per increase from 16 to 20 hours week Although the 1990 amendments of the beginning years after December re-emphasized Nurse Act place Council’s desire to and maintain nurses (b) (1988).6 31-2421(a), § D.C.Code The Act events, in the schools and at athletic explained also that medical services would be fully implemented. was never The trial provided at all school-sponsored athletic court found that the enactment of “[s]ince events: Act, there have been a maximum of 54 (d) nurse, registered A a certified athletic working nurses schools” and trainer, or both shall be at all (2) “[f]ifty-one additional school nurses athletic sponsored by events in would need to be hired order for defen- elementary secondary public or schools compliance dants to be in with Amended in occur the District. These medical Act.” The District never contested this find- services shall inbe addition to the mini- ing. Although budget the District’s 1991 registered mum hours of nurse services $454,700 provided hiring for the of fourteen (a) (b) required by subsection or of this comply certified athletic trainers needed to section. provisions with the Act’s for medical cover- 31-2421(d) (1988). § events, D.C.Code age school-sponsored Further- athletic more, initially budget provide funding “[s]uffi- did not for the addi- carry cient funds to requirements necessary out the tional school nurses this section are appropriated provisions. authorized to be the school nurse general out of the revenues of the District.” Proceedings II. to Date 31-2421(e) (1988). § D.C.Code 31-2421(e) In § the Council “egregious amended Frustrated and continu- mandatory Act,” to stress the funding. ing need for It violation of the Nurse was relettered as brought Superior subsection and now in Parents United suit © carry reads: August seeking “Sufficient funds to out in the Court both declarato- requirements of this appro- ry injunctive September section shall be and relief.8 priated general out of complaint revenues of the Parents United amended its 31-2421(c) (1988) § provisions again 6.D.C.Code elaborated: 7. These were amended once in (1990), D.C.Reg. see 37 and are now (c) that, Any May school on exceeded 31-2421(d) (e) in D.C.Code and codified registered pre- the standards for nurse services (1993). (a) (b) scribed subsection of this section service, shall continue that level of or the level 8. Parents United also claimed that the District's (b) (a) prescribed by subsection of this sec- "gross noncompliance Assign- with the Nurse tion, greater. whichever is No reduction shall proposed ment Act and its cuts in the base bud- registered be made in the level of nurse servic- get programs Assign- under the for school any except response es at school to a re- ment Act” violated the District of Columbia Ad- Act, duced need based on a reduced student enroll- §§ ministrative Procedure D.C.Code proportion ment or a reduced of students re- seq. voluntarily et Parents United dis- quiring special handicap- prejudice Septem- services because of missed this claim without ping conditions. ber 31-2421(c) allege compliance District defendants had “de- under D.C.Code that the (1988 supra note procedural Supp.), & see and plaintiffs nied their shortage registered that the nurses process under the fifth amendment of the have situation where would be created a of [42 ] U.S. Constitution violation U.S.C. event, impossible, for the District to 1983.” added that the Nurse Judge Taylor, reject- comply with the Act. justifiable Act had created ex- speculative ing arguments District’s pectation that “children would certain receive hypothetical, and concluded: registered minimal of care from nurses levels sum, genuine no during athletic trainers there are issues certified that, compli- regarding material fact defendants’ year” acting while under nursing ance with hours re- the school color of District of Columbia law “[without quirement plain- giving of the Amended plaintiffs opportunity notice or an on judgment tiffs are to that as- heard, deprived plaintiffs’ entitled defendants chil- Complaint as mat- pect of the Amended they dren of care to the medical which are ter law. requested to the entitled.” addition relief original complaint, provi- As for the Nurse attorney’s asked for an award reasonable requiring sions medical services school- 1988, fees and costs under U.S.C. see events, sponsored the trial athletic court 5, supra prayer amended for note its the require- found that District had met relief. 4, April ments the Act as of 1990: Thus, requirement regard with to the Preliminary Injunction A. events, coverage medical of athletic there genuine material are no issues of fact: for a preliminary Parents United moved violating the law defendants were until injunction Judge Nan October preliminarily enjoined them com- court (Huhn) applied the test in Shuker Cort it; currently ply they compli- with are Ash, 66, 78, 2080, 2087-88, S.Ct. ance, continuing pressure that under the (1975), that L.Ed.2d conclude court order. implied Act created an circumstances, plaintiffs Under those prelimi- of action. She issued a dispute— do not contend —and defendants nary injunction require- to enforce the Act’s injunctive appropri- that relief is continued coverage school-spon- ment of medical necessary ate and to ensure defendants’ events, lack sored athletic of which she compliance. agrees. continued The Court “unequivocally” irreparable found caused injunctive grant harm. But she did not relief accordingly issued a perma- The trial court general lack of school nurses. cure 3, 1990, injunction August ordering nent Judge party appealed Neither Shuker’s rul- comply require- with both the District ing. months More than two after ments the Act. injunction, preliminary Shuker issued The trial addressed Parents court then by providing required complied District claim, concluding United’s that constitutional school-sponsored medical services at athletic the Nurse Act created entitle- events. significant property ment that amounts to a specifically, the con- interest. More court Summary Judgment B. cluded, first, “[pjlaintiffs are entitled to that 1990, assignment registered nurse of a February Parents United moved minimum Public for a of 20 summary judgment. The did not D.C. Schools during per hours each semester and contentions that the week contest Parents United’s during if a summer complied with summer school school District had never court program operated.” concluded Assignment Act and that the Act created an cannot be implied right of action “entitlement withdrawn to enforce Instead, procedural process,” and that compliance. argued the District “[djefendants’ ever to with request- failure declining school enrollment and (b) (a) §§ or the put of either closings ed have deprives plaintiffs Amended Act of that enti incarceration responsi- work release for tlement, affording and does so without them possible ble District officials as sanctions. any ‘process’ whatsoever.” The court ac 3, 1992, Judge On March Wertheim con- cordingly held that the District had “deliber firmed compliance. the District’s substantial ate[ly] disregarded] ... the state’s funda process,” mental as articulated in Silverman Attorney’s D. Fees Barry, 327, 334, U.S.App.D.C. On November Parents United had (1988), denied, F.2d cert. 488 U.S. Application submitted an Interim for Reason- 956, 109 394, 102 (1988),by Attorneys period able Fees and Costs for the repeatedly disregarding the law for more July through September from years than four submitting budget pursuant Judge Taylor’s August permit compliance would not with the supplemented 1990 order. This was with a concluded, result, Act. The trial court as a request for September fees incurred between that Parents United was entitled to relief 1990 and December 1990. On March under 42 U.S.C. 13,1992, supple- Parents United moved for a Next, the trial court concluded mental award of fees and costs incurred be- statutory provisions mandating medical cov- tween March 1991 and March the time erage school-sponsored athletic events during which it monitored the District’s com- sufficiently specific signif- were also to create pliance successfully efforts and prosecuted property Because, however, icant interests. contempt the District’s proceeding. eventually complied District had with the Act and had compliance August Judge for future On Wertheim budget, the District’s granted the court concluded requests Parents United’s for costs that the deprivation attorney’s was not suffi- Although fees. the District ciently qualify deliberate to for relief under attorney’s continues to contest the award of § supra 1983. See note 4. 1988, agrees § fees under 42 U.S.C. it that the award of fees to Parents United was Because the trial court found one 1983 period warranted for the contempt violation, the court awarded Parents United proceedings. attorney’s reasonable pursuant fees and costs 42 swpra U.S.C. 1988. See note 5. Implied Right III. Private of Action Assignment Under the Nurse Contempt Proceedings C. Despite clarity Judge Taylor’s argues The District Au- the Nurse 3, gust order, Assignment implied the District Act does continued to not create an Assignment fact, D.G., violate the private right Nurse Act. In In of action.9 In re fully 160, (D.C.1990), the District did not applied with the Act A.2d 1992, until February the end of almost four’ four-part three relevant factors test Judge Cort, months 78, after had Wertheim held the established in at contempt District in civil on November at to determine whether a statute implied private right Wertheim had said that he an creates of action.10 Cort, ordering would consider school closures and Under the court must determine: below, argues implied right Parents United that the District is es- elaborated the issue of an because, topped arguing from this issue action is relevant to resolution of the stay appeal pending entry District’s motion to claim, recognize estoppel we do not an bar here. order, attorney's of the fee it had said it did not challenge ruling intend to the trial court’s explained ”[t]he 10. We in In re D.G. that fourth implied the Nurse Act created an factor, (if any) [Cort] whether the cause appel- of action. In a footnote of its 'traditionally relegated is to state law ... so that brief, however, explains: "Upon late inappropriate it would be to infer a cause of consideration, changed more careful we have law,’ solely action based 78, on federal 422 U.S. at proceed our minds and we now on the basis of applicable 95 S.Ct. at is not ...” when appeal our unrestricted notice of of the final D.G., a federal statute is not at issue. In re by Judge Taylor.” order entered Because the A.2d at 166 n. appeal Septem- District’s first notice of filed on unrestricted, because, ber 1990 was deny the most First, one of one.” Id. This become plaintiff the class is inquiry. important of the Cort See especial benefit the statute was en- factor whose —M., U.S. -, -, Second, any is there indication acted ... ? Suter Artist (“The intent, explicit legislative implicit, deny remedy such a or to ... important inquiry either to create most here whether Third, private is it consistent with the un- Congress one? to create the rem intended legislative derlying purposes of the scheme also edy sought by plaintiffs.”); see Ed Columbia, plaintiff? imply U.S.App. such a wards v. District of 163, 166-67 4, F.2d n. D.C. n. (cita- Cort, 95 S.Ct. at 2088 (intent legislature impor is most omitted). ease, In this each of these tions factor). tant Cort criteria met. First, question, provisions of the District of Unlike other represents especial the class for whose bene- Code,11 Columbia Assign- fit enacted the Nurse the Council private expressly does not authorize individu- legislative According to the histo- ment Act. expressly als to the Act. Nor does enforce ry: fact, prohibit private enforcement. Many school students not contain Act does households_ from low-income come Act. provision for enforcement greatly can benefit from Cort,

These students indicated such Supreme Court availability of health care services implied pri- an silence would leave room for their schools. remedy: vate ‡ sji sj?

s|e it is clear [I]n [the situations which shortage of nurs- Closely persons related granted a class of statute] has during ing necessary school hours is the services rights, certain it is not show personnel school-spon- issue of health create a cause of intention to events_ Injuries to stu- action, purpose sored athletic although explicit to an immediate atten- deny dents which need medical such cause of action would control- any type physical not unusual at ling. tion are personnel competition.... Medical (foot- Cort, at 2090 U.S. at 95 S.Ct. sports medicine would be able to trained omitted). note participating sports how advise students however, that a argues, The more District injuries, to and also be best avoid decision, Supreme Suter v. Art recent Court proper given at events to assure care is —M., at -, at S.Ct. ist U.S. injured physician until a or an an student Cort, eclipses requiring Parents United to arrives. ambulance legislative intent to explicit demonstrate an

Report at The Council Bill private a of action. We dis create cause accordingly Assignment the Nurse enacted Suter, agree. did not abandon the Court primary Act benefit the children for the test; in a merely applied it man the Cort it attending schools—“the the District’s second, “legislative emphasized ner especial benefit the statute class for whose intent” id. factor. See Cort, enacted,” 422 U.S. at was behalf Parents United and on whose Suter, specifically, in the Court ad- More filed this suit. the clause of question dressed the whether Adoption federal Assistance Child

Second, “any examine whether there intent, “reasonable efforts” to requiring im- legislative explicit or Welfare indication of family one of conditions a or to reunite plicit, to create such either —as bring facility may action in trator of an court example, Facilities a the Youth Residential For (1988), 808(d)(1) Mayor, a D.C.Code District Licensure for mandamus to order 3— District, provides: governing youth foster homes government agency, or the residential availability comply Notwithstanding monitoring other with committee resident, any person acting remedy, on or in chapter.... resident, or the licensee or adminis- behalf of a agencies persuaded not intend the for federal assistance to state re that the Council did sponsible investigating charges of child Assignment Act to be unenforceable Nurse neglect abuse and of by anyone than other the Council itself. See —created — against agency persons Sch., the state County Pub. Franklin v. Gwinnett parental rights had terminated. whose been -, -, U.S. S.Ct. major portion opinion A of the Court’s fo (1992) (“[Wjhere legal there is implied private on the fact that an cused right, legal remedy”) (quoting there is also necessary put of action was not teeth Blackstone, Commentaeies William in the “reasonable efforts” clause because the Madison, (1783)); Marbury see also U.S. for other enforcement mechan (1 Cranch) 137, 163, 2 L.Ed. noted, example, isms.12 The Court Finally, recognition Cort conditions of a regulations required detailed the state to being of action on its “consis- plan Secretary submit a of Health underlying purposes tent with the funding Human Services before federal Cort, Legislative scheme.” U.S. approved. regulations

would be also underlying purpose of the S.Ct. at 2088. The required plan provision the state include Assignment Nurse Act is to make medical agency for the state to make reasonable ef available to students in services the District’s removing forts to avoid a child from his or public schools. See REPORT on Bill 7-47. agency agreed place her home before the accomplished This was not until Parents care, inment foster and also to make reason therefore, Plainly, brought United suit. able efforts to assure the return to the child’s — private right of action is consistent with the placement home after foster care. Id. underlying purposes of the Act. at -, S.Ct. at 1364-69. clearly permitted Because the Act the Secre conclude, accordingly, that the three We tary funding program to withhold for a state applicable Cort criteria are met and that the that did not with the “reasonable im- Act thus creates an clause, efforts” whereas the Act did not ex Furthermore, plied private right of action. pressly action, provide private cause of it because the conceded had Congress Court concluded “that in did not complied never private remedy tend to create a for enforce appeal only Act and has raised on the issue ment of the ‘reasonable efforts’ clause.” Id. of whether the Nurse Act cre- — at -, at 1370. action, implied private right ates Adoption Unlike the Assistance and Child properly granted follows that the trial court Suter, Welfare Act at issue in the Nurse summary judgment for Parents United on Assignment provides Act no of means en- claim, Assignment Act as as well private right forcement whatsoever unless a permanent injunctive mandating relief com- implied. of Kelly, See Fountain v. pliance. (D.C.1993) (Social 684, Security 630 A.2d 690 implied private right does not create IV. Section 1983 Claim placed action for homeless residents in inade- By successfully pursuing a quate housing specified remedy because Assignment the Nurse of action under revocation of federal financial assistance to all the Parents United has obtained agency charged providing emer- shelters, substantive relief it is entitled to receive. gency nothing in Act or its Accordingly, to reach legislative history there would be no need suggests pri- there is also remedy). Moreover, the constitutional issues under U.S.C. vate civil the District 1983, § for the fact that a successful attorney general compli- has no but to enforce § nature, justify discretionary claim a mandatory ance. Given the as would well attorney’s specificity, as the of the Act’s substantive award of fees under U.S.C. requirements 1988, 5, § funding provisions, supra we are note Parents which United Suter, implied. 12. The Court addresses this issue in its discus- of action should be - U.S. at -, See however, claim; § § sion of the S.Ct. at 1368-70. closely claim is related to whether a 1990), 25, would (July not otherwise be entitled to D.C.Law receive. D.C.Code 31-2421(f) (1993) added). § (emphasis We therefore must deal with 1983 because In- attorney’s Taylor benefits, awarded hope fees. of creating stead a mere therefore, argu- the Nurse liability To establish under 42 U.S.C. ably gave public students in the District’s 1983, 3, supra see note Parents United a property schools interest could not be (1) must deprived show that it of process withheld without due law—an ar- right, immunity privilege, secured gument supports Parents United refer- Constitution, deprivation and that Supreme ence to decisions such as Court was color of effected under law. See state Memphis Light, Craft, Div. v. Gas & Water Co., 144, Kress & Adickes v. S.H. 398 U.S. 1, 11-12, 436 U.S. 98 S.Ct. 150, (1970). 1598, L.Ed.2d 90 S.Ct. .142 (1978) (because L.Ed.2d 30 Tennessee law acknowledges Because the District its provides utility may only public termi- actions to Act were cause,” nate service “for consumers have law, only taken of state under color the first “ ‘legitimate claim of entitlement’ within the element is at issue here. protection Clause”); of the Due Process Goss contends, and the trial 565, 572-76, 729, Lopez, v. 95 S.Ct. held, court that the children Parents United (1975) (Ohio 735-37, 42 pro- L.Ed.2d 725 law represents deprived a property right were viding for to all free education children be- protected by process the due clause of the ages twenty-one gives tween of five and chil- Fifth argues Amendment. Parents United legitimate public dren claim of entitlement to statutory language of the Nurse education); Goldberg Kelly, 397 U.S. sufficiently specific give Act is 90 S.Ct. public students in the District’s schools (statute defining eligibility for welfare bene- legitimate claim of registered entitlement to gives recipients fits claim of entitlement nurses in their schools for at least twelve payments). welfare registered hours a week and to nurse or a Amendment, course, The Fifth not does all school-spon- certified athletic trainer at prohibit property; all deprivations pro sored athletic events that occur in the Dis- only deprivations hibits made “without due Roth, Regents trict. See Board 408 U.S. Burch, law.” Zinermon v. See 983, 108 113, 125, 110 (1972) (“To L.Ed.2d have a interest Supreme The Court ex benefit, person clearly must have more plained: than an abstract need desire for it.... must, instead,

He legitimate [or have a she] violation un- constitutional actionable it.”).13 claim of entitlement complete depri- der 1983 is not when the occurs; complete vation it is not unless satisfy To the Roth test Parents United provide and until the State fails to relies, particularly, following more on the Therefore, process. to determine whether registered language of the statute: “A nurse occurred, a constitutional violation has it is assigned shall ... each necessary process the what ask State ”, per minimum of 12 hours ... week provided, and whether was constitution- (1988) 31-2421(a) (emphasis D.C.Code add- adequate. ally inquiry would This examine ed), nurse, registered “[a] and a certified procedural safeguards the built into the trainer, athletic or both shall at all statutory procedure or administrative of by sponsored athletic events the Dis- effecting deprivation, and the remedies 31-2421(d) (1988) trict....”, D.C.Code provided by deprivations for erroneous added). Moreover, (emphasis 25, July since statute or tort law. 1990, the statute “Suffi- Zinermon, 126, carry requirements cient funds to out the of 494 U.S. at S.Ct. at 983. therefore, appropriated_” question, section shall be is whether Parents Roth, Supreme declining teaching In Court contract the reversed sum- to renew his mary hearing, liberty judgment faculty deprived prop- for a nontenured him of a or member had university erly process employer, who of claimed that his in interest without due law. Zinermon, 127, at at 984. private United’s of action to enforce the 494 U.S. S.Ct. type of help it had not To lower courts determine what at a time yet “constitutionally protection constitutionally implemented, procedural been was is re- id., instance, satisfy Supreme adequate,” quired particular demands of due in a the required process, process generally or some additional in Mathews has whether Court required protection of entitlements un- “consideration of three distinct factors.” Mathews, 335, at 903. der that Act. U.S. at 96 S.Ct. First, af- interest that will be assume, solely argu- for the of We sake action; second, by the official fected ment, that the Nurse Act creates deprivation of such risk of an erroneous i.e., property literally that it enti- interest — used, through procedures interest and every tles in students value, any, probable if of additional or regis- to a interest the form a fi- procedural safeguards; substitute tered nurse for at least twelve hours week interest, nally, including the Government’s registered and to a nurse or a ath- certified the function involved and the fiscal every school-sponsored letic trainer athlet- administrative burdens that additional directly ic event. We therefore turn procedural requirement or substitute protections proper- kinds of constitutional would entail. ty traditionally by interests that are afforded process. due Id.

Overall, analysis ap- requirement Typically, “[t]he fundamental Mathews has been process opportunity plied due is the to be whether someone whose heard ‘at determine risk, withheld, meaningful meaningful time and man- entitlement is at or has been 319, Eldridge, hearing14 ner.’” v. predeprivation Mathews U.S. has a to a or (1976) 333, 893, 902, protected, 96 S.Ct. 47 L.Ed.2d 18 instead will be to the extent re- Manzo, 545, (quoting Armstrong quired by process, through postdepri- v. “a due 552, 1187, 1191, hearing, remedy S.Ct. L.Ed.2d 62 vation or a common-law tort (1965)). Zinermon, concept deprivation.” Due is a “flexible erroneous 128, case, particular that varies with if situation.” U.S. at 110 S.Ct. at 984.15 This Zinermon, 127, credits); prisoner’s good-time 494 U.S. at 110 S.Ct. at feiture of Fuentes 984, that, Shevin, 67, 80-84, 1983, Supreme apply- Court noted when 407 U.S. 92 S.Ct. test, ing (hearing usually the Mathews "the Court has held 32 L.Ed.2d 556 re- requires quired allowing reposses- that the Constitution some kind of a before issuance of writ 264, hearing property); Goldberg, deprives person sion of 397 U.S. at the State before See, Zinermon, (hearing required liberty property.” termi- e.g., S.Ct. at 1018-19 before benefits). (medicated nation of welfare 110 S.Ct. at 977-78 person disoriented entitled under 42 U.S.C. Zinermon, predeprivation hearing 1983 to before civil S.Ct. at 494 U.S. at "voluntary” patient); Supreme pointed “[i]n commitment as mental Court out that Loudermill, Bd. held that a Cleveland Educ. v. 470 U.S. some circumstances ... the Court has 532, 542, 1487, 1493, hearing, statutory provision postdeprivation 105 S.Ct. 84 L.Ed.2d 494 for a (1985) (predeprivation hearing required for erroneous de- before or a common-law tort employment); Logan privation, process.” Similarly, termination of v. Zimmer- satisfies Co., 422, 434, Logan, man Brush 455 U.S. 455 U.S. at 102 S.Ct. at 1148, 1156-57, (1982) (state necessity quick 71 L.Ed.2d 265 Court has indicated that "the pro- physical handicap impracticality not terminate or the discrimination State process” may affording hearing viding any predeprivation mean claim before its); claimant on mer- J.R., 584, 606-607, postdeprivation remedy constitutionally Parham 442 U.S. (deter- Light, adequate. Again, Memphis 436 U.S. at physician statutory mination neutral whether 98 S.Ct. at the Court has said that required potential length severity met con- admission standard is before "where hospital); Memphis deprivation of seri- finement of child in mental does not indicate a likelihood 18, (hear- Light, procedures 436 U.S. at S.Ct. at ous loss and where the ... are suffi- 98 1564-65 service); ing cutting utility required ciently determination,” to the risk of erroneous before off reliable minimize Goss, 579, (informal prior hearing may re- 419 U.S. at 95 S.Ct. at 738 not be See, hearing suspension quired. e.g., Ingraham Wright, required v. 430 U.S. before of students McDonnell, 651, 682, 1401, 1418, school); public 711 from v. 418 97 S.Ct. 51 L.Ed.2d Wolff 2975-2976, 539, 557-558, 2963, (1977) corporal (hearing required U.S. 94 41 not before S.Ct. students); (1974) (hearing required punishment junior high L.Ed.2d 935 before for- 168 repeal unique, attempted in that to amend or

not unusual the state-creat- (a specified issue —a level of right any ed entitlement at Act” in event to all available public nurses and athletic trainers in the legis- lobbyists participants as and in citizens authorized, mandat- schools —has been even hearings).16 lative ed, Thus, provided. law but at this never short, in applying the second Mathews history time in the of the Nurse factor, will be no we conclude there typical of a we do not have the case value,” “probable indeed no value whatsoev- proposed ongoing cut-off an for benefit er, pro- providing in “additional substitute predeprivation hearing a which would beyond safeguards” in this cedural case — feasible, an or even the case of adverse action bring to enforcement action— postdeprivation of some kind which a for reduce or eliminate “the risk of an errone- to hearing adequate Par- provide would relief. deprivation” children’s inter- ous United, example, complained for ents not required assignment of school ests already particular place, nurses below trainers. As a conse- nurses athletic statute, required by the level have been with- factors be- quence, other two Mathews from situa- drawn the schools. Unlike such come irrelevant. tions, entirely we deal with a here ease relying required not here We are on omission, alleged where uncontested — —and are we exhaustion state remedies.17 Nor only possible manda- effective relief is a relying on state remedies cases where tort tory injunction implement the dormant process satisfy held to due because are precisely the afforded local relief statute — hearing impossible either predeprivation through Assign- (i.e., deprivation was unauthorized and implied private right ment Act’s of action inappropri- unpredictable),18 or is otherwise Indeed, successfully brought Parents here. (i.e., analysis indicates proffers ate Mathews remedy, itself no other aside United brief, out- right, “partic- predeprivation hearing of a would from a in its costs claimed benefits).19 (1) Rather, simply if ipation legislative process weigh citizens Co., 600, 416 doctrine Mitchell v. W.T. Grant U.S. 619- does not "offend the of nonexhaustion denied, 889, 620, remedies”), S.Ct. 40 state cert. 488 U.S. 94 L.Ed.2d 406 220, (1988); Vicory (hearing v. required not S.Ct. L.Ed.2d 211 before issuance of writ 109 102 Walton, 1062, Cir.1983) (6th sequester property). 721 1064 n. 3 debtor’s F.2d (exhaustion of state remedies does not "stand person seeking general proposition that a acknowledges legisla 16. Parents United that the deprivation claim state a under 1983 statutory can at ture eliminate a entitlement procedural process due not property without need simply by Logan, amending time the statute. See prove post-deprivation procedures plead and 432, (state may at S.Ct. at 455 U.S. 102 1156 remedies under state law were available statutorily eliminate its created of action causes deficient”), denied, 834, S.Ct. cert. 469 U.S. 105 "just altogether as it can amend or terminate its 125, (1984). 83 L.Ed.2d 67 programs”); Taylor employment welfare or v. Ledbetter, 791, Cir.1987) (11th F.2d Palmer, 517, 530-36, (“Since proce 468 U.S. claim under Roth is a 18. See Hudson v. child's 3194, 3202-05, claim, process Georgia due dural state of (where intentionally may officer took alter its in such correctional statutes ordinances position to way change expectation prisoner's property, state was not in as to or eliminate the provide predeprivation procedure rely.”), de because action which this child had a cert. unauthorized; nied, 1065, 1337, availability of 489 U.S. 109 S.Ct. 103 L.Ed.2d was random and (1989). process); due Parratt state satisfied 527, 535-44, Taylor, 451 101 S.Ct. U.S. 1912-17, (1981) (predeprivation L.Ed.2d Felder, Easter 17. See House v. 910 F.2d prisoner's procedure impossible where loss of (7th Cir.1990) (§ 1983 action not foreclos hobby by negligent, act kit was caused random simply provides alternative fo ed because state state; availability reme- unauthorized of state relief; however, rum for alternative relief process), dy provided adequate due overruled adequate process, leaving no basis furnish due here, Williams, part not Daniels v. relevant denied, action), § 1983 cert. 106 S.Ct. (1991); Campo 111 S.Ct. 112 L.Ed.2d City Employees' Sys., York New Retirement Cir.1988) (conclusion (2d Ingraham, that “a 19. See 430 U.S. F.2d (public required may provide not to hold procedural schools state hearings inflicting corporal punish- judicial setting” before either administrative § existing prejudice note that state often remedies are under U.S.C. attorney’s award of fees to the uneontested process sufficient to assure constitutional due contempt proceed- Parents United for the reasons, variety supra of see notes 18 ings. 19; and we conclude in that no this case other, remedy provide kind additional will part, part, reversed Affirmed any greater, expedient protection more remanded. presumed property Parents United’s interest SCHWELB, Judge, concurring Associate injunctive in school nurses than the relief the in the result: permits; Act and thus we hold that be- local, procedures cause District of agree majority Columbia I that the Nurse Zinermon, Assignment by a “constitutionally adequate,” are be enforced civil brought by action such as that Parents Unit- 494 U.S. at 110 S.Ct. at there is agree ed. I also that the District’s violation § no 1988violation here. The most essential of local law did not constitute a denial of met; process element of due Par- has been law, without due and that “opportunity ents United has had the to be Parents United therefore is not entitled to meaningful meaning- heard at a time and in a my opinion, award of counsel fees. how- manner,” Mathews, ful ever, majority’s analysis question 902, by successfully obtaining whether the Act creates a only meaningful maximum —and relief: — action tends to understate the differences summary judgment permanent injunc- and a and the between this ease authorities relied tion.20 United, Parents and makes the issue complicated somewhat closer and more than Y. actually appropriate is. I also think it portion affirm We of the trial court’s forcefully explicate more what I view as the holding order that Parents United has an incompatibility fundamental between Parents implied private right of action under the purported claim United’s constitutional Act; Nurse that the District has principles Accordingly, basic of federalism. nursing require- violated the “school hours although agree Acting I with much of what Act; ment” of that that the District had been written, join I Chief FERREN has violating statutory “requirement for med- judgment opinion. court not but its coverage ical until athletic events” injunction court preliminary entered a I. re- quiring compliance; and that Parents United My colleagues would determine whether accordingly summary judgment is entitled to bring Parents United has a a civil permanent injunction mandating and a com- against the District under the Nurse pliance requirements with both of the Act. Assignment by applying principles § Absent a violation of 42 U.S.C. how- Ask, set forth Cort v. ever, portion we reverse of the trial Cort and its granting summary judgment however, court’s order progeny, statutory enact- dealt with attorney’s § awarding respect under 1983 and fees ments different in a critical from the students; availability contempt remedy, ment on that situation would of common law aside the pro- present possibility tort actions for excessive force satisfied due at least the theoretical —not cess). predeprivation hearing here—of kind, stay some other than court action Goldberg, U.S. at 90 S.Ct. at here, cutoff. announcing the result do not Cf. (hearing required termination of before effectively apply address how would case, benefits). perhaps different, In such a welfare Act violations in grips, definitively, court would have to come to hypothetical Suppose, example, situations. property interest with whether the Act creates a complies that the District with the act relief, injunctive coupled with the and whether period by reducing of time and then violates it levels, availability of tort actions to individual nurses or athletic trainers below the injuries proximately procedures, caused the absence of in violation of standards and re- trainers, 31-2421(c), satisfy proce- quired by nurses or athletic would statute. See D.C.Code process requirements, supra (setting without need for note 6 when reduction can be dural due forth services). registered nursing Putting made in 1983 relief. 170 (1979)). us,

legislation presented and thus a before “Where, here, legislature specified legal one the somewhat different issue from the appropriate that us in this case. relief which is to a confronts the redress violation, are not authorized to courts devise The in question Cort was whether a .remedies; expressio different unius ex- est litigant bring a had the civil action States, clusio alterius.” Mack v. United 637 under statute a federal criminal which con- omitted). (D.C.1994) (citations A.2d 433 penalties, tained criminal but made no which specifies only one legislature When the mode provision proceedings civil it. for to enforce enforcement, judges surely should hesitate Congress having specifically the identified more, holding that two or before there are statute, namely, for sanction violations of the they into a for lest intrude domain reserved punishment, question was criminal the legislative branch. an whether additional different means enforcement, case, namely, the of a civil The institution situation on hand, by aggrieved fundamentally action party, should be read other different. Un- Ash, by implication. into v. the statute The Court like the statute at issue in Cort question provision no negative, answered that and Nurse makes by penalties. courts criminal articulated standards which for Nor is case like whether, Suter, only should determine one for is at where no federal financial assistance explicitly mode has been au- If Act is of enforcement issue. violat- thorized, ed, implicit in- may authorization be Uncle cannot cut off the flow of Sam Cort, nudge ferred for a second. federal dollars in order to District U.S. compliance. Accordingly, unless S.Ct. 2087-89. into those injured by the who are District’s failure majority The cases discussed which carry responsibilities out under the its apply analysis present question the Cort a permitted to Act are sue the See, e.g., similar that which arose Cort. redress, nothing for the Act is but D.G., (D.C.1990). In re 583 A.2d cruel hoax —an unenforceable declaration —M., -, v. Artist Suter U.S. which, good paper, but which look (1992), S.Ct. L.Ed.2d on which teeth, having accomplishes nothing no relies, Congress specified had protect. designed those whom it was remedy agency for the of a failure state representatives pre cannot Adoption with the federal Assis- Our be elected Act; Secretary legisla tance and Child Welfare sumed to have enacted unenforceable ago, autho- More Sir Health Human Services was tion. than two centuries Wil “general rized to reduce or federal financial liam Blackstone articulated the eliminate rule, indisputable legal Al- there is non-complying recipient. assistance to that where though legal explicitly right, remedy, stated federal there also a suit or law, right is funds could be terminated and contained no action at whenever that invad provision by pri- of the Act for enforcement ed.” Blackstone, 3 William COMMENTARIES plaintiffs in v. litigants, (quoted vate claimed Franklin Gwinnett Suter — Schools, U.S. -, -, County they implied had an to sue under Public (1992)). 1028, 1033, 117 the Act and under 42 U.S.C. 1983. Unsur- later, years prisingly, they Chief Justice Marshall lost. Nineteen Madison, Marburg wrote for the Court rejection reason the courts’ (1 Cranch) (1802), 137, 163, 2 L.Ed. like implied rights claims of in cases government our Cort, readily appar and In D.G. is Suter' re govern- emphatically has been termed statutory ent. is an elemental canon of “[I]t laws, men. ment and not of It will expressly construction where statute certainly high appel- to deserve this cease remedy, a must provides particular court lation, if the laws furnish no chary into it.” Foun reading others right. legal of a vested violation (em Kelly, tain A.2d added) Only ago, “unhesitatingly” few phasis (quoting Mort weeks Transamerica Advisors, Lewis, concept as articulated gage Inc. v. endorsed the “noble” statute, question by century provided in the eighteenth legal giants. has been a these Columbia, person Brantley aggrieved whether an sue to See v. District of (D.C.1994). therefore be answered in A.2d enforce must emphatic Yes! most cases with an remedy A right without a is ta- therefore present The case falls into the second of boo, the Act must be dealing categories. are with a these We accordingly. being There construed no alter- at all statute which cannot be enforced unless enforcement,1 private right of a native mode recognized. private right a action is Al- of recognized, of a action must be the act is my though colleagues hold that and, I nullity. It would be unreasonable rigorous the passed even think, for a presumptuous court to assume Ash, distinguishable of Cort is test v. Cort right that the Council created a but withheld my opinion, only marginally relevant. suppose remedy. We cannot that our question ought posed the to have been which merely representatives pretended to elected may reasonably is whether the Council be they unacceptable as an address what viewed right, but supposed pre- to have created a namely, shortage the severe of condition— any remedy cluded whatsoever vindicate per- nurses at schools and of medical right. question The answer to that —not provided sonnel at athletic events —but no a difficult No! one —is reality. means to alleviate condition in majority apparently discerns no differ- II. ence, analytical purposes, the between Cort agree majority line of cases and the controver- I the that Parents claim, sy. Yet the critical factor makes which United’s Section 19832 conceived in plaintiffs fees, heap like counsel lose cases Cort and is not order to recover a of is Suter present here, lacking part, argument whereas the decisive merit. For the most I con- Judge reasoning cur in carry which enables Parents United the FERREN’s Part wish, however, opinion. day of his I in this case not IV that he was available to the it, plaintiffs emphatic be a about legis- would bit more Cort Suter. Where the important are at stake. specified remedy, values lature has one it has im- plicitly precluded teaching others —this is the me, argument To Parents United’s comes of expressio unius maxim —and it sel- govern- suggesting close to that whenever a dom, ever, province if of the add court to mental actor or local law in violates state a by judi- enforcement additional mechanisms way plaintiffs property that affects a interest Moreover, cial where a mode en- fiat. transgression this local becomes —abracada- statute, provided ques- forcement no bra; federal hocus-pocus-fidibus3 consti- —a tion legislature arises as to whether the has perhaps ingenious, tutional violation. While remedy. created without In such approach at the roots federal- strikes situation, question answer whether ism, identify and I think should and firm- implied was is there- has ly reject it. Easterbrook said it always fore resounding almost No! best: hand, law,

Where, ought A its but treat legislature other state to follow remedy all, expressio no a violation state law as a violation of the govern contrary, federal apply. unius does not On Constitution is to make the law_ presume that the of state Penn legislature courts must did ment enforcer Hospital not [State to create a hurst & Halder intend reme- School man, 900, 911, dy, statutory law is for an unenforceable (1984)] held that eunuch. Where no other sanction or federal Counsel, Corporation attorney 2. 42 U.S.C. 1.The District, realistically expected cannot to en- bringing force the Act an action in the name used sorcerers 3. These words are said to be client, to restrain her own conjurers accomplishments. enhance their District, violating the Act. from authority to state courts lack the direct If

officials to with state law. PITTMAN, SHAW, POTTS and alchemist’s wand can transmute a viola- Petitioner, TROWBRIDGE, tion state law into a violation constitution, naught, Pennhurst will befor law the order state

federal enforcement of DEPART OF COLUMBIA DISTRICT day. MENT EMPLOYMENT SER OF VICES, Respondent. Racine, 1211, 1217 City Archie v. 847 F.2d (7th Cir.1988) (en banc) added), (emphasis No. 92-AA-1356. denied, cert. 489 U.S. (1989).4 Appeals. District of Columbia Court Assuming, argument, for the sake of Argued March proper- Act creates 5,May Decided

ty purposes, I interest for Fifth Amendment am facts how at a loss to understand these plaintiffs deprived with- were They

out due law. have had meaningful opportunity to be heard at a time meaningful Armstrong in manner.

Manzo, 552, 85 380 U.S. (1965). Indeed, they L.Ed.2d prevailed, large part, on their local

have ease, By deciding

law claim. courts giving them all the relief are they

to which are entitled. There is no deprivation

constitutional here.

To rule Parents United’s favor on its judicial claim would be to vindicate

alchemy expense at the of federalism principles present of law. The con-

neutral

troversy arises from the District’s violation

a District of statute. It is a case Columbia noncompliance law. That

involving with local Literally colloquially,

is all it is. as well as a federal case out of it.

we should not make one, case, and the unfa- brought a federal constitutional the suit was into In the (and Superior principles implications Court not in a federal court as of feder- vorable for basic Archie, Nevertheless, here, Archie). as in comparable to those in Archie. alism are plaintiffs violation seek to convert a state law

Case Details

Case Name: Kelly v. Parents United for the District of Columbia Public Schools

Court Name: District of Columbia Court of Appeals

Date Published: May 5, 1994

Citation: 641 A.2d 159

Docket Number: 90-CV-1130, 90-CV-1158 & 92-CV-1126

Court Abbreviation: D.C.