Uneeda Davis v. Ball Memorial Hospital Association Patricia Roberts Harris, in Her Capacity as Secretary of Health, Education and Welfare

FAIRCHILD, Judge, Before CUM Chief MINGS, GRANT, Judge, Circuit and Senior Judge.*

CUMMINGS, Judge. Circuit Plaintiffs, indigent persons three former patients Hospital at Ball ly Memorial Indiana,1 County, originally Delaware brought suit on behalf of themselves persons income who have and all low re there charging ceived or receive care Hospital’s of the violations defendant obli gations under the Constitution and the seq.2 et join Hospital After moved to as defend Indiana ants the members of the State Health, the Health Commis Board of State Health, sioner and the Educa (now tion Welfare Health & Human and Services), plaintiffs amended com plaint parties include and to broad these eligible Indiana persons en the class to all under the Act. services September On party moved to be dismissed as 17, 1979, lawsuit, and on December dis motion, granted thus elimi trict court of the com nating the two relevant claims allegations plaint insofar as involved The district concerning Secretary. motion to plaintiffs’ court denied thereafter judgment final enter this dismissal as a 54(b), plaintiffs appealed. under Rule Cullen, Jane A. Legal the district Organiza- Services We reverse and remand now Indiana, Inc., Ind., Bloomington, to one claim respect court’s order plaintiffs-appellants. other. respect to the affirm with * Grant, original The Honorable A. Robert as a Senior District 2. Also named defendant Judge Emergency Physi- complaints United States District Court amended Indiana, sitting by Inc., the Northern County, District Delaware described as “a cians of designation. not-for-profit corporation chartered to emergency medical to those in and services Only original plaintiffs, 1. two of the Indiana, named County, including Delaware around Kathy Bright, parties Uneeda Davis and patients treated at the Ball Memorial those appeal. Judge case on Holder dismissed par. emergency (Am.Cplt., Hospital room.” Barber, plaintiff, the third named Susan be of this Holder the dismissal ordered apparent cause her failure six to wait party suit, it is not a from the defendant filing months after with the de appeal, nor relevant is its dismissal suit, filing required fendant before now before this Court. issue 300p-2(c). the statute. 42 U.S.C. That appeal. dismissal is not an issue on consequence, efforts As a Hill-Bur- forcement. enacted in

Originally lax. federal assistance for the remained provides ton Act3 effect Sess., 93-1285, re- Cong., of medical 2d Rep.No. construction and modernization 93d As a condition of re- nationwide. & Admin.News printed Cong. facilities in U.S.Code program, under the the Act ceiving funds (1974). pp. give

requires each “assurances” the 1974, Title XVI of Congress passed In volume of provide that it will “a reasonable (42 Public Health Services Act U.S.C. § persons pay to unable to therefor” services 300o),amending part the Hill-Burton Act in that the financial condition of to the extent to stricter enforcement of the un- 291c(e).4 42 facility permits. the U.S.C. § compensated program. services The new development of the assurances The tortuous legislation gave Secretary direct investi- adoption since of the Act is set requirement gative power, including and enforcement opinions in the two in Ameri- out in detail (42 U.S.C. authority payments withhold to Harris, Hospital Association v. can acknowledged possibility 300p-2(c)), § Cir., 1980)5 and there is no need (id), against the facilities private actions Nevertheless, a repeat to it here. brief adopt new Secretary to and directed development applies overview of that as it services uncompensated regulations for to this ease be useful. (6). 300o-l(5) and program. 42 §§ U.S.C. Despite presence of the assurances respond Secretary again slow The requirement Secretary failed 1979, how- May this last directive. On steps implement provision to take cur- ever, promulgated the regulations until when substantive set out which inter alia regulations, rent regula- finally promulgated.6 were Those 124.506), (42 pre- eligibility criteria C.F.R. § tions, 1974, stipulated amended in services uncompensated the level of scribe facility indigent—careobliga- meet its could with the assurances required compliance for by setting uncompen- tions either aside for (42 124.503),provide for individual C.F.R. § operating or sated services 3% of costs regarding availability patients notice to assistance, of such federal whichever is 10% 124.505),and (42 of the services C.F.R. § less, by simply certifying that it would procedures for the determination establish any person not exclude because of an inabil- (42 124.508). The 1979 C.F.R. benefits § ity pay for medical care. C.F.R. longer allow a regulations no 53.111(d). Secretary’s power to en- The § merely certifying obligations by meet its was, compliance regulations sure with the patient because of that it will not exclude a however, diluted the structure of 42 C.F.R. inability pay. Compare Secretary’s primary role was to Act. 53.111(d). 124.503with C.F.R. § see that the assurances were reflected reg- Secretary issued the 1979 plans state health while Before the State authorities ulations, federal responsible specific filed this suit in were otherwise for en- injunction, popular acted 3. The Act is name was whether program begun adopting in 1964 under Title VI of the his mandate within seq.; (42 Public Health Services Act. 42 U.S.C. regulations §§ see 124.50 et C.F.R. §§ part to 2910-1. In of the National infra). dispute in case discussion Planning Development Health and Resources regulations provisions those centered on 1974, Congress Act of added Title XVI to the regulatory merely part of the a small Public Health §§ Services Act. U.S.C. 300o on the that case The resolution of scheme. litiga- to 300t. Both titles are involved in this litigation. directly affect merits will tion. Some of these sections have now been Association, supra, Hospital See American repealed (see g., or recodified e. current 42 discussing 42 C.F.R. F.2d at 300s, 300s-6), but to avoid §§ U.S.C. confusion 124.509(b). 124.503(b) and §§ we will use the older section references. in force between comparable provision appears 6. The 4. A in Title XVI. statutory requirement merely 300o-3(b)(l)(J). restated give such assurances. that facilities Association, Hospital 5. The issue in American appeal preliminary from the denial of a are, complaint, been, court.7 an amended filed care services who have or will be April 1979, plaintiffs alleged8 eligible uncompensated services from formerly Bright, pa- Davis any facility located in the State of Indiana Hospital, tients at Ball Memorial inade- pursuant which receives funds to the Hill- quate pay their medical resources (Am.Cplt., par. Burton Act.” services, received no notice of the availabili- Only com- two claims amended ty services, gained plaint appeal. are relevant to this Claim eligibility, determination and encoun- charges individual applying tered difficulties after dis- violating the Due state defendants with charge for a settlement of their under bills Process Clause of the Fourteenth Amend- program.9 They brought suit against a 10by failing adopt regu- ment in federal variety compel defendants lations or the notice plan proper state directives, filing with the Act’s on behalf of procedures.11 determination Claim themselves and consumers of health “[a]ll charges Secretary violating alone -with been, are, care services who have or by failing eligible the Hill-Burton Act to issue uncompensated for services Hospital proper regulations properly defendant Ball to monitor Memorial Asso- or [] ciation, Inc.” compliance and consumers health obligations.12 of with the assurance “[a]ll merely 7. This suit was one of filed c. to several Indicate Plaintiffs the criteria utilized country prod Secretary determining eligibility. around to into in promulgating regulations. See opportunity Newsom v. d. Give Plaintiffs an effective to Vanderbilt, Univ., F.Supp. (M.D.Tenn. present concerning affirmative evidence their 1978); Lugo Simon, F.Supp. (N.D. eligibility uncompensated for services and Ohio opportunity to refute adverse evidence before participated a making has decision-maker who 8. Because the district court dismissed the finding ineligibility.” the initial of Secretary pleadings, claims on the well-pleaded allega- we must take as true all provides , 12. Claim 6 in full: complaint. tions Joseph “85. Defendant Califano Patri- [now Act, cia has violated the Harris] Hill-Burton (see supra ) 9. Plaintiff Barber note 1 made simi- seq. implementing § et and its U.S.C. allegations. lar regulatory provisions by: Failing promulgate regulations a. to final 10. The amended mentions pro- for administration of the Hill-Burton Amendment, though Fourteenth court as the district gram, by required as 300o-l et concede, U.S.C. noted of course seq. Secretary the brought properly claims Failing adequately b. to monitor inves- under the Due Process Clause of the tigate court, Fifth either the Indiana Amendment. Like State Board the district we depends nothing purely find that Health and individual facilities in Indiana techni- funding cal error. receive to deter- mine whether there with feder- 11. Claim 4 states full: regulations, al the Indiana State Board of Kerr, Bloodgood, Butler, “83. Defendants by plan, any given Health state assurances or McDermott, Miller, McSoley, Rosser, Worley, any facilities or the State Board connec- Levinson, Paynter and Califano have violated program, tion with the Hill-Burton as re- the Due Process Clause the Fourteenth quired by 300o-2(c) [300p-2(c)]. U.S.C. Amendment to United States Constitu- Failing adequate proce- c. establish by failing regulations, in the federal Indi- investigation dure for and enforcement regula- ana State Plan or tions, other rules and by made assurances individual Hill-Burton require a Hill-Burton in Indi- Indiana, including per- sufficient facilities sonnel ana to: effectively enforce the Hill-Burton Adequately notify writing a. Plaintiffs in program. availability the pursuant services d. Failure sanction violations of assur- to the Hill-Burton 42 U.S.C. by ances made Hospital Defendants Ball Memorial seq. apply et § 291 Association, Physicians Emergency such services. Inc., County, mem- Delaware defendant detailing b. Give to Plaintiffs written notice Health, bers or State Board of denial, denial, reasons and evidence by Indiana, required in seq. as facilities denying applications relied on in for un- 300p-2(c).” § 291 et and § compensated services. Appealability sought judgment against Plaintiffs violated Secretary declaring that she has contends first and that and continues to violate Act ap court is not the district the decision of violating is still she violated and decision Clearly, Judge Holder’s pealable. They sought an Due Process Clause. under 28 final decision its nature a grant comply refusal requiring the and his order U.S.C. § the dismissal to enter plaintiffs’ Act “in- motion with her duties under the and to 54(b) of the Fed under Rule judgment final duty Hospitals form and enforce [her] forecloses of Civil Procedure eral Rules protection.” of law means for only other available plaintiffs’ Shortly amending complaint, after require meeting jurisdictional standard plaintiffs moved a determination of that as nonetheless ments. Plaintiffs assert their class action claims. The relief, including in denying all a decision then, responded relying to these claims and relief, Secretary, the against the junctive 18,1979, part May on the issuance of new interlocutory is an ruling district court’s regulations, moved for dismissal from the continuing, modifying, re “granting, order lawsuit. the district court On December dissolving refusing or fusing injunctions, or granted the latter motion. Holder thereby injunctions,” modify to dissolve allegations found that the had Claim exception the final qualifying for great been mooted “to extent” new 1292(a)(1)of found in decision rule Section sur- and to the extent agree. Code. We the Judicial vived, allegations plain- the because failed First, a district court’s is settled that it tiffs not exhausted their administrative 54(b) entry under Rule refusal make an provided by remedies the as Administrative jurisdiction un- preclude appellate does not (5 (App. 558(e))13 Procedure Act U.S.C. § 1292(a)(1). Tapeswitch Corp. of der § 39—40). respect the dis- With to Claim Co., 527 F.2d 1013 v. Recora America provided trict court held that the Act 54(b), which affords the 1976). Rule private right against of action the Secre- apply its opportunity district court alternative, tary plaintiffs or in of the case to the knowledge first-hand had failed to exhaust the administrative parts separability of certain question of expressly provided remedies in the Hill- action, appellate for review provides prerequisite Burton as a to such a statute 1292(a)(1) Section in some cases which 40-42).14 Judge suit subse- (App. Holder by the results in its denial does not and quently refused enter this order cases which Section district court some 260). 54(b) (R. jurisdiction. 1292(a)(1) final decision under Rule Therefore grants Appeals to con- appealed. Plaintiffs then remains for Court by tary provides agency sub- 13. That take the action authorized Section shall “[e]ach give any person (b) shall petition interested of this section or take section issuance, amendment, repeal (including by for the an action law action authorized of a brought by rule.” specific performance the At- torney upon request Secre- of the General by 14. Section relied on both the district by tary) compliance which effect plaintiffs 300p- court 2(c), and the was appropriate entity such An with assurances. provides in full: any compliance with action to effectuate “(c) investigate shall and as- brought by person such assurance be certain, basis, periodic respect on a with complaint Secretary only if a other than the entity receiving each which is financial as- by person has the Secre- been filed such with subchapter sistance under this or which has tary has such and dismissed subchap- received financial assistance under Attorney complaint has or the General not chapter subchapter, ter IV of this or this brought civil action for with compliance by entity extent of such with the such 6 months after the assurance within required assurances to be at the made time filed with date on which the was such assistance received. If the Secre- Secretary.” tary entity finds that such an has failed to comply any assurance, the Secre- Buffalo, Sedita, independently availability juris- vail. Build of sider Inc. excepting (2d diction under the statute. This F.2d also Wright policies Miller, conclusion does not mean & Federal Practice & Procedure 54(b) regarding behind Rule the inadvisabil- (reconciling 3924 at n.43 81-82 Local Un- ity piecemeal dangers review and the ion 1888 grounds). and Sedita on these splitting a cause of action should appeal permitted This resembles that application considered this Court in the Sedita, case, supra. plaintiffs In that 1292(a)(1) particular of Section to any case. sought preliminary injunc- permanent quite Defendants are correct raise those Buffalo, tive relief Mayor Rather, here. weighing issues of these Police Commissioner and various members policies against competing considera- Department, of the “ Police alleging Buffalo tions case draws from Section systematic pattern ‘a resulting of conduct 1292(a)(1) results in our conclusion that the numerous, separate distinct viola- question appealable. rights, privileges, tions of the immuni- exception provided by Behind the Section ties’ of and the class seek to 1292(a)(1) recognition request lies a represent.” 441 F.2d at When injunctive inevitably presents relief Mayor district court and Com- dismissed pressing issues, equitable including the permitted Appeals missioner the Court of irreparable injury, and that 1292(a)(1). review under The court Section require such concerns speedy settlement found that defendants dismissal those through appellate prompt review of the bal- plain- “decisive” on the have a effect ance struck the district court. Gardner relief, request injunctive particu- tiffs’ Westinghouse Co., Broadcasting larly pow- since district would be court 478, 480, 2451, 2453, 57 L.Ed.2d 364. erless to order relief re- Therefore, although dismissal of some but maining might defendants that address the all equitable defendants to an pattern alleged. police misbehavior presents four-square dangers here, Similarly alleged piecemeal split review causes of action comply that the failed appellate jurisdiction structure of obligations her statutory and constitutional eschew, is intended implicate to it will often any particular as they affect more than policies the 1292(a)(1) of Section well to 4 hospital. particular, charges her Claim the extent directly that the dismissal and failing adopt regulations with to suitable substantially affects the of character and with failing Claim 6 to monitor and injunctive sought. Accordingly, juris- relief required enforce with the Act as commonly diction this context depends by respect the 1975 amendments. to With appraisal on an of significance to the claim, complaint the latter the amended dropped action of the party. Thus courts provide seeks can relief the alone unwilling have been appeal to allow under requests it respect the former 1292(a)(1) Section when the district court relief requires substantial involvement has party merely dismissed a that is “ancil- Secretary. jurisdiction Accordingly, lary” to the request for Local relief. Union 1292(a)(1) proper. under is Section Jackson, City 1888 v. of Westinghouse Broadcasting Gardner Cir. Conversely, have courts found 2451, Co., 478, 437 98 57 L.Ed.2d U.S. S.Ct. jurisdiction parties when the dismissed are defendants, us by 364 cited to does not parties against the sole injunctive whom contrary That case (Holton indicate result. sought relief is v. Crozer-Chester presents Center, issue whether a denial (3d Medical distinct 1977); F.2d 575 Co., injunctive McNally v. class action status in an Publishing Pulitzer 532 F.2d denied, gives appellate jurisdiction under rise to certiorari 855) 1292(a)(1) or when Section on the class certification dismissal of certain defend- will significantly question. Clearly permitting ants a rule contact relief generate appeals that will plaintiffs pre- appeals be available should flood is constitutionality agency action itself largely on issue committed to the district an discretion, Supreme sufficiency court’s an issue not at issue but rather the meeting due agency-adopted procedures Court has otherwise viewed as too unsub- interlocutory challenged. stantial to warrant review. is Never- process requirements 463, Coopers Lybrand Livesay, principle widely & is general U.S. theless since Therefore, FTC, accepted, 57 L.Ed.2d 351. Inc. Spiegel, see although 1976) (citing cases), denial class certification at (7th Cir. times result in some contraction of the plaintiffs and of these others demands relief, policies peculiar available specific have action from may outweigh class actions that concern in discretion, con- her we led her to exercise any particular case. Thus will often be is re- that further exhaustion not clude case, Gardner, as in that the denial of focus our consideration of Claim quired class certification affect neither the mootness and the more the issue of plaintiff’s scope question of a claim nor the any not question, briefed intractable legal sufficiency any parts. its entitled party, 480-481, at 2453. In U.S. 98 S.Ct. raise a due claim under the Hill- case, present decision district court’s Burton Act. questions. Consequently, affects both simply class treated in Gardner is A. inapposite the case at hand and cannot Ange- rely upon County Plaintiffs Los jurisdiction alter our conclusion that Davis, les proper. principle 59 L.Ed.2d 642 Claim is no likelihood is not moot unless there case recur the effects that violation will noted, charges As Claim 4 the Secre past have violation been eradicated. violating tary process by failing Although Davis involved discrimination adopt regulations requiring each raising that differ salient claims issues employ procedure giving notice to action, respects spirit from those in patients obligation of its indigent particular services, if formula of that ease determining and of govern ques- eligibility patient op does the mootness issue. offering while portunity presents tion it here is whether Secre- present affirmative evidence to procedural impartial tary completely officer. The district court held filled inappro- complained of and rendered new federal have void sought. considera- largely respect priate mooted this claim with the relief Close and to the extent tion of the amended not, perspective had failed to exhaust confirms Claim their administrative remedies. Plaintiffs moot.

here contend that erred in Holder 4 and Superficially wording of Claim finding is mootness and that exhaustion not might sug- Secretary’s thereof parsing necessary constitutionality when the charges gest result. Claim contrary agency challenged. action is Secretary violating process * * regulations appeal Secretary disputed “by failing On in the federal not facility” to plaintiffs’ require provide a regarding inapplica- assertion requirement process protections. al- Secre- bility exhaustion certain due regulations has, course, adopted though argument tary is not without now its have, thereby satisfying the basic They example, difficulties. under the cited claim, directly complaint. no that in this mean- case addresses the issue Nowhere while, an necessary any legal basis for whether exhaustion when the is there stated 15. The other 4 are all defendants cited Claim parties state officials and are therefore not appeal.

obligation Secretary’s part requires. on the due process enforce The controlling cases procedures, plaintiffs such Indeed, so that cannot requirement. reflect such in the appearance overcome the of mootness with Goldberg Kelly, seminal case 397 U.S. respect to by relying this claim on the re- 254, plaintiffs S.Ct. 25 L.Ed.2d quest in prayer injunc- relief for alleged merely they that were terminated regarding such enforcement. from or welfare were about to be terminat- process ed without due did assert Furthermore, the new supply they specifically sought that kind specific most of procedures plaintiffs hearing Supreme ultimately Court de- alleged necessary have are under Due necessary. requirement cided was Such a they Process Clause. Thus anomalous because it would re- written the availability notification of quire plaintiff predict the course of (42 C.F.R. services 124.- § development hamper constitutional ef- 505(d)), written notice denial of such rights. forts vindicate constitutional (42 services 124.058(c)) C.F.R. the use eligibility of clear for granting standards (42 denying such services C.F.R. 124.- B.

508(c)). respect submitting With affirm- The Secretary does have at its dis ative evidence on a receiving claim and a posal a more objection fundamental to the hearing an impartial before decision-mak- standing plaintiffs of these er-procedures sought by plain- these respect right, hearing to the asserted to a tiffs-the notes that the named but with To respect to Claim 4 as a whole. plaintiffs sought never such from relief Ball process claim, plaintiffs assert a due must Hospital argues they Memorial proteetible property demonstrate a or liber therefore standing lack under O’Shea ty Regents Roth, interest. Board of Littleton, U.S. S.Ct. 564, 92 2701, 33 548. Yet S.Ct. L.Ed.2d L.Ed.2d 674 to raise this on issue either appeal neither the district court nor on their own behalf or class. have indicated source of such The Secretary’s characterization right. Judge merely Holder assumed that plaintiffs’ complaint is cramped though. too implicated interest was in the amended specifically seeks deciding course to dismiss the claims declaratory judgment process on the due grounds. finding Our on mootness point by raising the question whether the permit pass does not us and exhaustion has violated their due lightly so over this issue. past rights and whether It that: settled suffering any lingering effects property in a bene- have a interest “[t]o context, violation. In this inconsequen it is fit, person clearly must have more than tial specific there be no more for it. He an abstract need or desire relief court can order the expec- must have more than a unilateral supply. Carey Piphus, Cf. must, instead, it. He tation of (due process claim it. legitimate of entitlement Further, violation is itself an injury). ****** Secretary’s regulations granted have not requested hearing ato interests, course, are not “Property so Due Proc Rather, created the Constitution. requires hearing ess Clause a such remains they are created and their dimensions are a live issue below. existing defined rules under- The Secretary sup standings independent meanwhile has that stem plied authority no suggestion for her that source or under- state law-rules bring suit to process proce establish due standings that secure certain benefits and plaintiff dures a allege must he support that or she that claims of entitlement actually Thus, sought particular procedure recipi- each the welfare those benefits. to treat on have resources the facilities Kelly, supra, had Goldberg v.

ents in eligibility The uncompensated basis. payments to welfare claim of entitlement has been entitlement defining in which an in the statute cases grounded that was mandato- recipients ordinarily The make assistance eligibility for them. found were, fact, con- they in No such yet eligibility not shown that is found. ry when eligibility. terms of in case. possible within is clusion right to a they had a we held that But regulations contrary, To attempt to they might hearing at which alloca- options in the with two the facilities Roth, Regents v. Board of do so.” resources, allowing of their limited tion at 2709. one hand on the to choose between them Goldberg as a case reference to Roth’s plan the allocation specific adopting entitlement had “a claim of on the other uncompensated services * * * defining in the statute grounded first-come, on a merely taking patients particularly signifi- eligibility for them” is 124.507(a) basis. C.F.R. § first—serve Goldberg, case. cant for the instant give option could rise (b). former significant case for perhaps the most only plan once a specific entitlement pub- process of due claims disposition a due plaintiffs have adopted; say that field, sought due lic assistance orderly plan for the interest in a governmental deci- process protections on is to uncompensated services allocation of welfare ben- regarding sions termination clear entitlement existence of a assume the receiving. already Roth’s they efits were come actually that does to the services Goldberg casts the Court’s description of adopted. plan is until the into existence mold, charac- ruling general there in a more first-come, option first-serve Similarly, the terizing the case as one in which statutori- of an en- presence raises doubts about criteria create an en- ly-created eligibility ever be plaintiff could titlement since arguably who meet persons titlement the bene- applied for that he or she certain process protections criteria. Due those year to any particular early enough in fit determina- necessary to make the factual receive the benefits. eligibility process. a rational tion of actual moreover, that generally supports emphasizing, The case law since Roth It is worth properly property anomaly interest when does not the existence of a this structural rep- Goldberg, benefits are at stake. but eligibility, such conditional relate to Califano, before-the-fact, Wright qualifi- practical resents Detrich, 1978); F.2d 118 mere Griffeth It means that program. cation on 1979); see also v. Nebraska Greenholtz program is for the qualification abstract Inmates, Penal 442 U.S. 99 S.Ct. any expectation and that insufficient eligibility (mandatory parole L.Ed.2d 668 justified. fully receiving is not benefits entitlement). guidelines protectible create qual- reflect regulations themselves eligibility determination Goldberg line of ified nature This case resembles to tell require the facilities regulations clearly they set out cases recipients of feder- specific eligibility requirements plain- that as the patients funds, gen- some depending either will or will not meet tiffs al construction they have to 42 C.F.R. obligation on the factual circumstances. See eral service regulations meeting that Yet the Act and 124.506. certain amounts set aside distinguishing 124.505(a). It contain a structural element obligation. C.F.R. ordinary scheme from the qualified such a state- is uncertain public program. reg- Under the engender assistance is sufficient obligation ment ulations, meets the every applicant expecta- who claim” or “legitimate the kind eligibility clearly enti- relevant criteria by Roth. anticipated Rather, tled to assistance. not overcome Plaintiffs contemplate possibility

seem to class alie- by relying on simply applicants than hurdle eligible there will be more gations. First, the complaint repeating person amended de bears predi- cannot eligible scribes a class those for uncom standing injury cate which does he not pensated services and therefore does share.”)17 gap eliminate the discussed above between supplementary In a memorandum to the eligibility pro and entitlement under this Court, plaintiffs have cited several cases gram. Even if the amended finding a property interest under this stat- were drafted it is differently, doubtful that regulations ute and its as well as under a class merely drawn to reflect and there qualifi- other statutes that contain similar fore create such an entitlement would be beyond presence cations of eligibility addition, proper. In assuming arguendo a criteria. These are largely unpersua- cases drawn, class so may be there split is a sive. In Newsom University, v. Vanderbilt authority regarding whether we should con F.Supp. 401, (M.D.Tenn.1973), 422-423 allegations sider the class at this stage example, construing case these Hill- proceedings. Compare Roberts assurances,18 Burton appears court Airlines, (7th American 526 F.2d 757 Cir. engage legal legerdemain in a by kind of 1975), denied, certiorari U.S. finding that eligibility means entitlement 195; S.Ct. 48 L.Ed.2d Case & Co. and that by restrictions created Board of City Chicago, Trade of merely finiteness of funds result in a denial 1975) (summary judgment Cir. must, of benefits Goldberg, under com- cases from this Circuit in which the Court port process guarantees. with due In Grif- beyond refused look plaint named Harris, (3d 1978), fin v. iffs)16 F.2d Cir. City of Inglewood v. City analysis court’s express finding Los included an Angeles, 1971); there, plaintiffs 3B receiving ¶ Moore’s Federal tenants Practice 23.50 (taking allegations rent regarding consequence living benefits as a class as true in during projects consideration 12(b)(6) by under Rule certain selected Procedure). Housing Federal Rules of Civil Development, and Urban were “in- importantly, Most it is certain that unless availability duced” of benefits to plaintiffs these named or some individual project. become an approved tenants can legiti demonstrate that he she has a The form and re- character the notice claim, mate there representatives are no quired under the proper standing bring the class alle preclude a finding of such inducement gations. Patterson, Bailey this case. S.Ct. L.Ed.2d see Lastly, City Holmes New York Medrano, 802, 828-829, Allee v. 416 (2d Housing Authority, 398 F.2d 262 2191, 2206, 2207, 40 (Burg er, case, J., C. otherwise resembles this concurring in part result combined dissenting part) (“A pre-Roth several of sins of plaintiff named can case, acquire standing process analysis. plain due In that to sue his bringing 90,000 action on among eligible behalf of others who tiffs were applicants suffered y injur 10,000 places which would have projects. afforded them for public housing standing plaintiffs; held, been named judge dissenting, The court one infra, simply greater length cases those the district court ne- 17. As discussed at glected ques- question plaintiffs standing to decide the class certification whether result, cases, tion. As a for in those the reasons entitle- have an Appeals accept plain- assuming Court ment are not Even identical. allegations arguably strong tiffs’ standing class were would have cer- vindicate present taking interests, as those here for that course. tain their interests would differ authority class, The is from sources outside this that the with its en- Circuit those titlement, compelling. might no less present, Because a final resolu- so that named necessary plaintiffs arguably proper tion of this difficult matter is not still not disposition question, our representatives of the instant de-we for the class. attempt cline to one in case. supra. note 7 18. See begins analysis from Hufstedler’s requires selection process

“due that be made accordance among applicants above, that the presence the rule discussed * * * standards,’ with ‘ascertainable does not foreclose a eligibility criteria and, many where are in cases candidates entitlement, noting finding of an “[a]n standards, qualified under these equally rise to an entitlement gives interest further selections made some always quickly interest.” She conditional such as lot or on ‘by manner reasonable adds, however, that chronological order of the basis of ” in govern- “not interests all conditional 265, citing application.’ 398 F.2d at rise to entitlements. give mental benefits Allen, (5th 330 F.2d Hornsby v. Cir. entitlement, To law must create an 1964).19 grant remove the the benefit decision failed, however, speci- Having state agency 504 F.2d at 494 from discretion.” involved, interest ficity protectible (footnote omitted). merely assumes its court conclusion Newsom, style supra, by finding that the entitlements, a benefit To become actual very process, arbitrariness in selection particular must be sort. of a arbitrariness that should raised doubts directly “Every statute and indi- remedial entitlement, it- presence about the rectly peo- on numerous confers benefits process safeguards. self necessitates due ple. Although of an actual ben- conferral analysis simply inadequate an Such an efit essential to the creation of may be resolving our case.20 entitlement, recipients not all of actual C. benefits have entitlements. Benefits guidance special Some treating arising from a statute can become emerge this case circumstances of does be restricted those entitlements should housing cases. In Harlib v. those conferred on beneficiaries benefits Lynn, (7th 1975), 511 F.2d 51 Cir. this Court intended Congress to whom to extend housing program held that established or, interest some kind of enforceable 221(d)(3) of National under Section put slightly differently, whom Con- Housing (12 1715e(d)(3)) gives Act U.S.C. § governmental gress intended to create protections rise process to no due for ten- obligation.” Id. buildings ants who live financed she program. perhaps point, That decision is note- In a outlines a footnote at its worthy because of refusal to find applicable to relationship directly our dis- in those who are ex- arguably entitlement cussion below: pected program to benefit from a federal “The notion an enforceable interest] [of assistance in the construction of certain fa- standing Prerequi- is akin doctrines. importantly, cilities. More relies for Harlib asserting legal sites to a claimant’s obli- reasoning upon conclusion the elaborate prior gation purpose compelling for the Hufstedler, of then-Judge dissenting in Ge- perforce hearing notice more Organization Tenants v. Fed- neva Towers he stringent in which seeks to than those Investors, Mortgage erated legal requirement support assert re- (9th That reasoning Cir. relies in a governmental proceed- view provides formu- analysis useful ing government has acted.” Id. after the resolving la the due issue in this omitted). (citation at 494 n.3 case. Allen, Village Hornsby Nothing 19. in Bloodworth Oxford F.2d Townhouses, (N.D.Ga. 1964), F.Supp. by plaintiffs us a case also cited to 1974) specifically approved by Supreme St. James Police or Poirrier v. Parish Court n.9, (E.D.La.1974), Kelly, Jury, F.Supp. Goldberg af- 262-263 firmed, 1017-1018, appears case in cases S.Ct. at to be a necessary requirements plaintiffs, supplies eligibility cited anal- alone made plaintiffs’ ysis. interest conditional. elements, Judge Building upon comply these Huf- their assurances. Saine by noting Hospital of compo- Authority County, stedler continues that “a Hall (5th 1974); 1033 nent addition to the existence of an Cir. Corum Beth Israel Center, (S.D.N.Y. right” necessary F.Supp. is Medical 550 enforceable for there to entitlement, 1974); Organized Migrants Community be an namely the interests Action, “upon Hospi be Inc. v. James Archer conditional the existence one Smith of or tal, F.Supp. (S.D.Fla.1971); more controvertible Cook v. controverted Hospital, Ochsner F.Supp. Foundation component facts.” F.2d 495. This (E.D.La.1970). Other courts found to practical process, serves the side due contrary. Okmulgee Don Memorial hearing since a “point- notice would be Hospital, (10th 1971);22 F.2d Cir. less” if there were no such facts to resolve. Sipes, (W.D.Mo. Stanturf v. 224 F.Supp. 883 Summing up, Judge Hufstedler notes: 1963), affirmed, 335 F.2d 224 principles “From these we draw can a denied, certiorari working definition of an entitlement: An 567; Rogers Hospi v. Provident entitlement a legally is enforceable inter- tal, (N.D.Ill.1965). F.Supp. receiving est a governmentally con- benefit, ferred the initial receipt Congress apparently was aware of this termination upon of which is dispute conditioned when it redrafted assurances the existence of a controvertible and con- program. Its con- reformulation the Act troverted fact. Such an interest cannot language tained relevant the controver- impaired be or destroyed prior sy, without as follows: beneficiary notice to the and a meaning- appropriate action to effectuate “[A]n opportunity ful him be heard for compliance with such assurance purpose of resolving the factual is- brought by person be a than sue.” 504 F.2d 495-496. Secretary only if a been complaint has person filed such with analysis, Under this tug the facts here and the has dismissed directions, making different a this close Attorney complaint or the General has case. At previously first blush the dis- brought not a civil action for cussed structure of the pro- with such assurance within 6 months af- gram seems specifically to mean that these ter the date on which the plaintiffs simply fail meet the first of Secretary.” filed 42 U.S.C. Judge requirements, Hufstedler’s that of 300p-2(c). showing right some enforceable or interest. language ambiguity This is free since hand, On the other language and struc- right expressly grant private it does not a ture of the Act should not viewed in a action enforce assurances but political and historical vacuum. Before the requirements establishes certain where such 1975 amendments to the at least one Still, con- action exists. viewed explicitly indigent court had pa- found that text dispute among earlier were proper tients third-party beneficiaries courts, language does seem to contem- program standing assurances plate private right a continued of action Stenner, sue. Euresti v. compli- the facilities to effectuate 1972).21 This tentative conclusion ance with the assurances. soon recognition by blossomed into a some full-fledged private right courts As noted in Hufstedler Geneva Towers, supra, sue the requirement facilities for failure to of some en- holding upon finding 21. Euresti relies Circuit in It is curious that Tenth Euresti provides Okmuigee that the Hill-Burton Act for a contract did cite its earlier case of Memo- containing Hospital finding against private the assurances between the federal rial since agency facility receiving and the federal funds. of action latter inconsistent seems pinpoint precise finding standing cases do not relation- with the in the former. ship finding third-party between a benefi- ciary rights private right of action. Nevertheless, it a mistake require- would be interest is to the forceable “akin” result, standing. anomaly. the availa- long ment of As pause very over standing to bility to these sue is not process side of so practical is an of an en- the facilities initial index permit- a matter it should be weighty Although Judge interest. Huf- forceable more funda- completely ted to overshadow finds that this enforceable interest stedler the existence of supporting mental concerns stringent” requirement “perforce more practical an entitlement. Minor concerns standing sue, concepts two mere than deciding process resolved in what are best Fur- perhaps closer than she indicates. than should due rather whether due thermore, just this is not case there generally applied. Thus the courts have be abstract, standing, relatively a threshold finding at an entitlement demurred concept merely requiring a sufficient stake process con- resulting even when the due controversy to the issues with contest party may the accused to straints force (Association Data Pro- proper vigor of pertaining information to matters supply Camp, Organizations, Inc. v. cessing Service by the beyond those raised individual far 827, 829, 150, 151-152, For that an educational grievant. example, right but a private concrete of supply general might to institution have hospital. private action This suspicion dispel financial information action, definition, re- right of almost motives to re- improper that it refused for very flects the sort intend- Congressional of faculty thought not been member has to confer ment some enforceable interest hire finding an entitlement in preclude of upon Judge Huf- these beneficiaries that regarded faculty as individual member where the stedler indicative of this first protectible property expecta- element of a justify interest. an circumstances otherwise Similarly, it employment. tion of continued case also This encounters difficulties in this case to conclude would anomalous step Judge second of Hufstedler’s anal- circumstanc- slightly practical that unusual practi- ysis. Judge Hufstedler viewed the an finding es foreclose a of entitlement process requiring cal of due that side permitted a Congress specifically when has status, achieve entitlement an enforceable exist, right presumably of action to upon private must be contro- interest conditional spite practical verted or facts. On the obstacles. controvertible one hand, case present this seems to such an context, that significant In this it patient’s right uncompensated issue. A of the Act and indi- structure depend ability will an to dem- upon services practical objections cate that eligi- facts necessary onstrate both to show application process of due claims under bility prove Hospital and to that the very severe. in fact obligations has not met its financial suggest and regulations statute hand, year. the other On it is not certain place that will presumptions framework that this latter conditional element is production party on the the burden of anticipated by Judge sort Hufstedler. Her relevant The lan- has the information. reasoning suggests practical side obligation guage the Act one of the entitlement existence refers result, despite preca- assurances. As regarding controverted facts the claimant tory language the notices facilities himself. The existence of controverted obligations, regu- post must about their finances, facts the hospital’s about which granting appear anticipate lations process hearing full- could turn a due into course, per- application will be the usual an litigation scale elaborate dis- requiring haps customary compli- level because covery, raises some doubts about the con- high enough is set to ensure most ance sistency practical of such with the claims process applicants side of the due services.23 Accord- equation. receive example, alleged, plans serv- 23. The have not for the allocation of action, adopted have well creat- Indiana formal ices. Such facilities ordinarily dem- ingly, gations claimants will have to under particular the Act and in onstrate their eligibility; 300p-2(c). in the un- under U.S.C. The district case, may perhaps common seek court relied grounds on two alternative First, dismissing Judge thereafter show of its this claim. Holder yearly exhaustion compliance requirement or concluded that the statute does not simply financial strain. permit private for or cause practical With the concerns reduced in way, action pur- for this appears that Hufstedler’s Second, pose. analysis noting proce- exhaustion permit in- this enforceable dure the statute provides for enforcement terest to achieve entitlement status. by “persons other actions than the Secre- sum, plaintiffs here have an enforce- tary,” he even private right found that if a able in compliance by interest the facilities exists, have failed to with their assurances under the express statutory prerequisites meet the Congress interest intended by and reflected appeal, plaintiffs action. con- On in 42 300p-2(c). This enforceable that the analysis ordinarily applied tend comports practical interest with the side of statutes on indicates that a since upon it is conditional con- private of action is appropriate and troverted controvertible facts. That requiring plaintiffs petition that the to the some of these facts are external to the Secretary complaints review their patients’ presents claims too ob- minor an about enforcement makes little sense. In jection status, particularly to entitlement in instance, however, we the believe dis- light of the structure of the Act and regula- trict court was correct. tions.24 necessary pause briefly It is only not, course, These conclusions do end dispose ground of an additional for dismiss matter, plaintiffs the for even if have al raised the the both in dis proteetible interest it is not at all clear appeal. trict court and on what is due. can- particular, we regu contends that because she has issued say now that expectancy the created lations established new enforcement requires a full hearing impartial before procedures plaintiffs’ complaint about officer, plaintiffs contend. we Although procedures old In enforcement is moot. might issue, ourselves decide this it seems deed, been say her counsel has “[t]here preferable to return ease to the district showing plaintiffs’ complaints that about court. condign process will on depend opera prior system are relevant to the questions factual regarding procedures (Br. 30). tion of the new The short scheme” employed the hospital, position proce to this comment is that the answer plaintiffs and even the level of demand plain dural status of this case has denied generally. their services ques- These showing opportunity tiffs the make tions cannot be on exiguous decided so a whatsoever, therefore impossible and it is record. We therefore reverse and remand predict plaintiffs what ad evidence could permit Claim 4 plaintiffs test They support may, duce in of their claims. argument merits of their regarding ap- example, to show deficiencies in able propriate process. not addressed in the enforcement Claim 6 procedures. Fur current charges ther, Claim essentially opportunity have the should with a failure to meet obli- in for a prove, support request its enforcement entitlement, option ed only a clear is an reached our after undertak- conclusion presumably ing scrutiny Judge become more attractive as the de- the careful Hufstedler’s mand for services increases. process analysis. Only opinion sets out for due analysis responsive wide vari- such an to the Although general 24. in result resembles appears context from statute ation way Univ., those in Newsom v. Vanderbilt su- statute. pra p. City 39 and v. Holmes New York Housing Authority, pp. supra 39-40 we law, an area basical- relegated to state declaratory judgment, have suf- States, lingering allegedly effects of the so ly fered the concern Secretary. history lax enforcement to infer a cause inappropriate would be Accordingly, moot. the claim not solely on federal law? See action based Wheeler, 647, 652 Wheeldin v. 373 U.S. a cause We do not believe Claim states 1441, (1963); cf. 10 L.Ed.2d S.Ct. 605] [83 action, Clearly, however. statute 426, Borak, 377 U.S. J. I. Case Co. right of expressly grant does not 1555, (1964); 12 L.Ed.2d S.Ct. 243] [84 against Secretary; language of 42 Federal Narcotics Bivens v. Unknown Six 300p-2(c) actions refers to 394-395, 388, S.Ct. Agents, 403 U.S. note, [91 facility. As id., 1999, (1971); at L.Ed.2d therefore, presence private vel non of 619] J., (Harlan, Concurring at Secretary S.Ct. 2006] of action [91 78, at at depend judgment).” U.S. S.Ct. analysis Supreme Court Ash, originally set forth Cort v. U.S. 66, 2080, 45 has 95 S.Ct. L.Ed.2d the Cort recently This observed Court subsequent since reiterated in several cases. “basically analysis is matter Advisors, g., Mortgage See e. Transamerica looking Congress to “whether construction” Lewis, 11, Inc., (TAMA) v. 444 U.S. remedy as private intended create 242, 62 Cannon Univer- Co., Metals Simpson Reynolds serted.” sity Chicago, 99 S.Ct. (1980), quoting at 1238 60 L.Ed.2d 560. That well-known Cort Advisors, Inc. Mortgage Transamerica comprises

analysis four distinct factors: (TAMA) Lewis, determining a private “In 242. As a result the factors are not remedy is implicit a statute not ex weight two or three equal first one, pressly providing several factors are 24-25, 100 at factors can Id. dispositive. First, plaintiff relevant. the is ‘one 242. uni at We believe those factors S.Ct. especial the class for whose benefit the formly Congress did not wish indicate enacted,’ statute was Texas & R. Pacific right against a action permit private 39, 33, Rigsby, Co. v. 241 U.S. S.Ct. [36 al under the circumstances the 482, (1916) (emphasis sup 60 L.Ed. 874] leged here. is, plied)-that the does statute create respect to the This Court noted with has right plaintiff? federal in favor of the that courts have first of Cort factors Second, legisla is there indication approach in con used “too facile” an often intent, explicit implicit, tive either to “one sidering particular party remedy deny create such a or to one? especial class for whose benefit See, g., Passenger e. National Railroad Assn, v. Simpson Reynolds was statute enacted.” Corp. v. National Pas of Railroad 25; Co., v. Rogers supra Metals see 453, 458-460, sengers, S.Ct. [94 1074, Inc., Frito-Lay, F.2d 690, (1974) (Amtrak). 38 L.Ed.2d 646] denied, - U.S. -, certiorari Third, underlying is it with the consistent 246, Simpson 115. 66 L.Ed.2d purposes legislative of the scheme im involving rights Rogers cases See,

ply remedy plaintiff? handicapped persons under Section 503 Amtrak, g., supra; e. Investor Securities (29 412, Act Barbour, the Rehabilitation Corp. Protection 421 U.S. charges the (1975); seq.), 793 et which S.Ct. [95 263] federal ensuring recipients Harvey, Calhoon [85 (1964). statutory prohibition finally, And funds abide L.Ed.2d 190] handicapped.25 traditionally the cause of action one discrimination handicapped, construing under which 25. nation In Section 503 of the Rehabilita- Lloyd Act, Simpson Rogers right private of action has been found. tion contrast the lan- Authority, Regional Transportation F.2d guage provision of that with Section 300p-2(c) sweeping prohibition resem- much more on discrimi- Section resolving private general mind, whether a With this distinction in we right handicapped pass of action is available to to the second and third Cort factors. institutions, persons against non-complying parties supplied have no direct evi- they specifically per- distinguish between legislative enacting dence of intent in Sec- subject sons who are the mere of federal 300p-2(c). quota- Plaintiffs’ various legislation meet and those who the benefi- legislative history tions from the merely ciary status Cort test. As stated Congress’ demonstrate about concern there: “sorry” enforcement record assur- “There every is no intimation that quali ances under the Act. To infer from these handicapped fied person right has a Congress statements that intended to create case; particular affirmative in his right sought ignore of action is to here what is con apparent is that those who Indeed, warning noted above. to draw trol federal a duty contracts have merely such an inference is assume what make containing and enforce contracts proved, ignoring should be while several the requisite clause. The handicapped signals gave Congress in the course of simply petition Until primary deliberations. en- those who administer federal contracts to program forcement of the re- assurances perform duty.” Simpson Reyn mained at the Consequently, state level. Co., olds supra, Rog Metals quoting Congressional remarks about the “sorry” Frito-Lay, Inc., ers v. supra, 611 F.2d at Act, enforcement under although record certainly suggestive of disappointment with Secretary, is too slender a reed on which This observation particular relevance Congress rest the conclusion that ain statute such as the Hill-Burton Act thought required prod- direct particular funding because the scheme in ding private right the form of a of ac- requires assurances from Congressional tion. The response to the the facilities and enforcement the Secre- problems specifically enforcement tary, questions raises similar about en- primary transfer responsibility enforcement forceable interests of plain- an individual Secretary. from the States to Without Simpson Rogers, course, tiff. Unlike indication, step some further such a Congress apparently chose create an en- ordinarily adequate be viewed itself to patients forceable interest in indigent inso- remedy prevailing It therefore defects. far as compliance by the facilities is con- requires leap a considerable of faith to con- not, however, cerned. That difference does patients from clude this action that the nugatory render expressed the caveat in thereby rights against received new the en- Simpson Rogers summary about find- forcement bodies. ings “especial of benefit” under the first thing Cort factor. It is one the make Plaintiffs the observe some of courts patients the direct permitted patients beneficiaries of as- the which before had 1975 surances, quite give another to an permit them sue the also individual facilities had immediate interest in particulars the against Secretary. g., of fed- ted suits the E. Co administration, eral Center, enforcement and which rum v. Beth Israel Medical 373 public serve the at large. simply, (S.D.N.Y.1974); Put F.Supp. more 550 Cook Ochs implicated by the interests Hospital, F.Supp. an action to ner Foundation 319 603 compel local (E.D.La.1970); Organized Migrants with assurances also see Action, are implicated by different from those Community in Inc. v. James Archer compel specific (S.D.Fla. suit to Hospital, action F.Supp. Secre- Smith 325 268 tary to compel comply. 1971). facilities Far from some affirma- providing plementary memorandum, inapposite

bles Section 503 rather than Section For reason, this Handicapped Simpson Rogers cases such as United this case. draw much of Andre, (8th Cannon, analysis Federation v. 558 F.2d Cir. 441 at 690-692 this U.S. 1977), sup- have cited n.13. resembling of Act this one sions tive of intention to create a evidence proce- to circumvent against private right of the Secre- allow individuals legislative enact- tary, just opposite dural limitations suggest these cases argue here that Medical ment.27 Plaintiffs of cases considered the result. None these was case which relief was a depth in the that Cort demands.26 Center facility respect single with to a Further, acting backdrop sought only against federal funds therefore receiving against suits both state federal defend- relief ants, gain complete plaintiffs there could Congress chose to amend the statute against fed- directly proceeding without acknowledge private right of action Although the court placing-without eral defendant. against while facilities this fact Medical did mention acknowledgement-enforcement similar Center result, it drew stating finding, the conclusion powers As a Secretary. general permit- recognizes more one that principle far construction with ting any action was inconsistent possibilities that the selection one of two other, statutory scheme.28 suggests the exclusion of the an intention not amendments indicate Furthermore, implied itself Cannon private extend a of action cases facility of more than one the involvement involving Secretary. in the overall enforcement and deficiencies by an give to an action Similarly, scrutiny of the Cort fac scheme will rise third against the federal purposes legislative beneficiary scheme- individual tor-the agency only under extreme raises the exist enforcement substantial doubts about Richardson, circumstances, sought-for example, Adams right. citing ence of For (D.C.Cir. U.S. plaintiffs’ statutory ex contention that F.2d a line representative Adams is prerequisite against haustion to suits 707 n.41. agencies cases in which the federal applied makes sense when obliga suggests to meet an enforcement suits also failed tion, actually face but declined act in the the conclusion that suits the Secre wrongdoing state level. The tary of clear at the are inconsistent stopped addition, agencies what ease law is avail in these cases often format. engaging kind of construing just step able sort has one short of in a statutes improper state action. private rights complicity found that of action are in Hamtramck, 503 City consistent with such enforcement schemes. Garrett Assoc, 1974); United Thus in for the Advance F.2d Cir. National Center, F.Supp. People City Chicago, ment of Colored Medical States v. Inc., (N.D.Ill.1975), by unpublished 1247, 1254, affirmed (3d n.27 held, 1975). As a opinion, F.2d 695 relying part the court Cannon v. result, represents 706- case a more serious University Chicago, if this 1962-1963, presented in n.41, lapse 60 enforcement than Center, it still falls far short of private right of action Medical L.Ed.2d ordinari- provi- neglect compel agency to enforce kind wholesale federal g., pronounced E. Medical Cen local or institution. 26. This defect is even more cases, ter, City Chicago, supra; two most recent decided the 1975 after United States amendments, simply (N.D.Ill.1975), each of which assumes F.Supp. un affirmed against proper. an action is published opinion, 525 F.2d 695 University, Newsom Vanderbilt Simon, F.Supp. (M.D.Tenn.1978); Lugo v. plaintiffs them- It be recalled that should F.Supp. (N.D.Ohio 1978). beyond extends a sin- selves have a claim that stage gle facility only if entitled at this in, principle though 27. This is most familiar allegations litigation to have their class to, private restricted context actions true, we declined taken as issue have agencies force federal to cut off funds under decide. assertedly noncomplying certain statutes to an ly given rights against agen- rise to federal eral cause of action one who en- gages cies.29 in the forbidden conduct and in favor injured by one who has been it. That is Furthermore, plaintiffs them appeal. not our case on this (Reply n.13), selves concede Br. 22 Adams Judge out, Cummings points As Claim 4 was a case under the Administrative Proce originally directed at the Secretary’s (APA), dure Act specific not the regulatory adopt regulation failure to in response to scheme there Although plaintiffs at issue. the 1975 amendments. the adoption Since contend that the pri differences between a regulation, of the Claim 4 has been convert- vate of action under the Hill-Burton challenge ed to a particu- to its adequacy, Act and the mandate of the APA are incon larly concerning hearing procedures. sequential, we do not share their unconcern for the Unlike instances where a statute differences between the creates types two an entitlement and the glib actions. administrator denies jur Such treatment of the a claim of affording entitlement without particular isdictional basis of a lawsuit not process, due Secretary’s regulation, only is im- inconsistent with the basic notice statute, plementing the creates the entitle- requirements judicial practice sys in our ment, alleged tem, permit hospitals but is but also blithely ignores rather deny affording process. without practical differences the approaches two may engender for the nature and course of judicial Claim 4 in substance seeks review litigation. short, cannot at regulation alleged of a inadequate to be an stage alter the theory entire of their performance of an administrator’s action with a mere wave of the hand. I duty. agree opinion can with the <5fthe Judge Holder correctly therefore dismissed light history Court that in the of this this claim of complaint. the amended case, it was unnecessary plaintiff for the petition for an amendment Judgment part, affirmed in reversed and asserting before deficiency in court. part. remanded in Parties to bear their own costs. Because Holder has re- agree I can further have tained control of the remainder of this liti- shown standing judicial sufficient to seek gation, Rule 18 shall not apply. regulation respect review of the to the adequacy hearing procedures, and that it FAIRCHILD, Judge, Chief concurring in appropriate to return the matter to part, dissenting part. district court to adequacy. determine such “private cause of action” which is the judicial Claim 6 seeks review of the Sec- subject appeal of this one seeking judicial retary’s failure to take and en- review of certain action and failure to act required by forcement action the statute. by the Secretary. It seems to me that both duty An administrator’s to enforce is or- Claim 4 and Claim Secretary, dinarily highly discretionary, and for that must be analyzed in those terms. reason respect his choices with to enforce- In making analysis, help I find little ordinarily subject judicial ment are not Ash, in Cort Davis, 701(a)(2); review. See 5 U.S.C. § (1975) or Cannon v. University Treatise, Administrative Law 29.16. A of Chicago, 441 does, however, power court to review (1979). L.Ed.2d 560 These decisions dealt “agency unlawfully withheld or un- with the question whether a federal 706(1). statute reasonably delayed.” 5 U.S.C. § expressly prohibiting implies conduct Califano, (1st a fed- See Caswell v. Kyne, 184, 180, 29. sug- Leedom v. 358 U.S. 79 tion of S.Ct. substantial discretion. As we have 210, plaintiffs’ argument 3 gested, particulars L.Ed.2d also lends of the enforcement support. case, no program attempt Unlike this Leedom involved assurances de- belie agency acting Secretary’s purely a federal in excess of its statuto- scribe the duties as or even ry powers, thereby failing comply primarily with a ministerial. statutory duty involving applica- clear 48 CURIAM. University Chicago, 559 PER

1978); Cannon v. 1063, 1976), rev’d on F.2d 1077 August eptered an order on This court 677, 99 grounds 60 S.Ct. cause to show directing the defendant (1979); 560 Poirrier v. James L.Ed.2d St. not be should why appealed order Police Jury, Parish light and summarily remanded reversed (1976), rehearing denied F.2d Payner, 447 U.S. of United States adopting F.Supp. (E.D.La.1974). (1980). 65 L.Ed.2d 468 supervisory its 6(b) (d) alleges had exercised through Claim Sec district court by the evidence tainted suppress carry power monitor retary has failed to out the Fourth violation Government’s ing required by of assurances 42 U.S.C. parties and set rights of third Amendment 300p-2(c). to decide discretion She finding the defend- verdict jury’s aside comply that section. not to conspiracy to defraud guilty ant opinion, my In dismissal of Claim was of the Inter- and of violation United States inappropriate, should pendency of During the nal Revenue laws. opportunity prove their claim of Court, Payner, appeal, Supreme specific failure perform total arising suppression order reversed similar duties. seizure at of the search and out identical court in the case. The district present issue on order ground had refused to its theory use defendant of the unlaw- acquired evidence result process. activity ful was a denial of due argued appeal on Defendant its brief America, UNITED STATES of error, was and that due refusal Petitioner-Appellant, ground theory was an alternative process response to our order to for affirmance. cause, that his maintains show defendant Roger BASKES, Defendant-Appellee. S. theory Payner. We process due survives No. 79-1774. disagree. Although process issue was not the due United Appeals, States Court of Pay- petition certiorari raised Seventh Circuit. (presumably ap- because the court ner Sept. 15, Submitted it peals question), 1980. did not decide that had court, by the district been considered Decided Oct. suppression alternatively grounded 23, 1981. Certiorari Denied Feb. rationale, apparently order S.Ct. 1368. argued both the court of briefed and before appeals Supreme Court. un- ambiguous language Justice Powell’s ma- n.9, opinion (447 jority U.S. at 737 n.9, 468) at 2447 65 L.Ed.2d S.Ct. Sullivan, Atty., Chicago, Thomas P. U. S. majority’s rejection implicit dissen- Ill., Gen., Ferguson, M. Carr Asst. Atty. Tax n.15, (447 at preference ters’ Div., Justice, C., Dept, of D. Washington, n.15, (Marshall, petitioner-appellant. J., dissenting)) case be remanded Sinars, Ill., Chicago, Harvey Theodore A. appeals to the court of for consideration of Silets, Martin, Ltd, Ill., Chicago, M. Silets & issue leave no doubt that a defendant-appellee. ques- justices majority of the considered properly before Court and decided so, FAIRCHILD, being Judge, Payner. Before CUM- That adversely Chief BAUER, Supreme Court is clear: Judges. position MINGS and Circuit

Case Details

Case Name: Uneeda Davis v. Ball Memorial Hospital Association Patricia Roberts Harris, in Her Capacity as Secretary of Health, Education and Welfare

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 3, 1980

Citation: 640 F.2d 30

Docket Number: 80-1209

Court Abbreviation: 7th Cir.