Artist M. v. Johnson

• Decision Date: 21 November 1989
• Docket Number: No. 88 C10503.,88 C10503.
• Parties: ARTIST M., et al., Plaintiffs, v. Gordon JOHNSON, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

726 F. Supp. 690

ARTIST M., et al., Plaintiffs, v. Gordon JOHNSON, et al., Defendants.

No. 88 C10503.

United States District Court, N.D. Illinois, E.D.

November 21, 1989.

Patrick Murphy, Julie L. Biehl, Susan Tone Pierce, and Michael G. Dsida, Office of the Public Guardian, Chicago, Ill., for plaintiffs.

Susan Getzendanner, Christina Tchen, Charles Smith, Sp. States Attys., Skadden, Arps, Slate, Meagher & Flom, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

In December 1988 plaintiffs filed this action as a class action seeking declaratory and injunctive relief pursuant to the Adoption Assistance and Child Welfare Act of 1980 ("AAA"), 42 U.S.C. §§ 620-629, 670-679—either under 42 U.S.C. § 1983 ("Section 1983") or perhaps via direct action— and under the Due Process Clause. Plaintiffs simultaneously filed a Motion for Preliminary Injunction and a Motion for Class Certification.

Upon presentation of plaintiffs' motions, defendants concurred in the propriety of certifying two classes of plaintiffs:

Class A: Children who are or will be the subjects of neglect, dependency or abuse petitions filed in the Circuit Court of Cook County, Juvenile Division ("Juvenile Court"), who are or will be in the custody of Department of Children and Family Services ("DCFS") or in a home under DCFS supervision by an order of Juvenile Court and who are now or will be without a DCFS caseworker for a significant period of time.

Class B: Children who are or will be the subjects of neglect, dependency or abuse petitions filed in Juvenile Court who are or will be placed in DCFS' custody and who are or will be without a DCFS caseworker for a significant period of time.

This Court entered a memorandum order certifying both classes, granting plaintiffs' request for expedited discovery and setting plaintiffs' Motion for Preliminary Injunction for an early evidentiary hearing. After that hearing (the "Hearing") was held, with extensive evidence presented by both sides, the parties presented their post-Hearing submissions.

Defendants in this action are DCFS Director Gordon Johnson ("Johnson") and DCFS Guardianship Administrator Gary Morgan ("Morgan").¹ DCFS is the state agency charged with, among other things, investigating allegations of child abuse and neglect throughout Illinois and caring for children and families who are the victims of child abuse and neglect. This action is concerned solely with cases in the Cook County Region.

Plaintiffs complain that DCFS has a policy and practice of failing promptly to assign a caseworker to court cases following the issuance of a temporary custody or protective (or supervision) order and of failing promptly to reassign court cases when a caseworker goes on leave, is terminated or resigns. Plaintiffs claim that alleged policy and practice violates both AAA and the Due Process Clause.

Post-Hearing Procedures

This Court initially deferred issuance of its post-Hearing findings of fact and conclusions of law pending (2) then-awaited Supreme Court action and (2) DCFS' implementation of a restructuring plan directly addressing the delays in caseworker assignments.² Then just after the end of the Supreme Court's last term this Court issued its July 24, 1989 memorandum opinion and order (the "Opinion," 1989 WL 88525, 1989 U.S. Dist. LEXIS 9040 (N.D.Ill.)), requesting supplemental submissions from the parties as to:

1. whether Will v. Michigan Department of State Police, ___ U.S. ___, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) rendered Section 1983 unavailable to plaintiffs;

2. whether AAA confers on plaintiffs the implied right of action necessary to establish subject matter jurisdiction; and

3. what standard (intentionally inflicted harm or something less) should be applied to plaintiffs' Due Process Clause claims and whether plaintiffs can meet that standard.

After those supplemental submissions had been tendered, defendants moved under Fed.R.Civ.P. ("Rule") 12(b)(6) for dismissal of the Complaint with prejudice for failure to state a claim. Defendants assert that no legal basis exists for any of plaintiffs' claims, pointing to four claimed defects that raise issues substantially similar (if not identical) to those framed in the Opinion:

1. Class A plaintiffs lack standing to sue under AAA because they are not in foster care.

2. AAA neither authorizes a private right of action nor gives rise to enforceable rights under Section 1983 to secure continuous caseworker assignments.

3. Plaintiffs' Due Process Clause claim is flawed because the Fourteenth Amendment does not mandate immediate, continuous caseworker assignment and because plaintiffs do not contend defendants acted intentionally.

4. Will bars plaintiffs' claim for sweeping injunctive relief.

This opinion addresses each of those contentions, though not in the same order.

Implied Statutory Rights of Action and Section 1983 Rights of Action

Despite defendants' confluence of analysis as to the existence vel non of implied rights of action under AAA and enforceable rights under Section 1983, those are really two distinct inquiries. Samuels v. District of Columbia, 770 F.2d 184, 194 (D.C.Cir.1985) confirms that "statutory Section 1983 claims differ significantly from implied private rights of action." Boatowners and Tenants Association, Inc. v. Port of Seattle, 716 F.2d 669, 674 (9th Cir.1983) underscored that difference:

There are both substantive and evidentiary distinctions between the two causes of action.

Because of those distinctions and in the interest of clarity, this opinion will examine each type of claim individually.

1. Implied Rights Under AAA

About the only legal proposition the parties here agree upon is that Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) establishes the framework for determining whether a statute contemplates an implied right of action for a given individual or class. To that end Cort, id. (citations omitted, emphasis in original) calls for this inquiry:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" ...—that is, does the statute create a federal right in favor of the plaintiff? ... Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Later refinements of the Cort analysis have brought matters to the situation well summarized in King v. Gibbs, 876 F.2d 1275, 1280-81 (7th Cir.1989):

In its recent pronouncements, the Court has reaffirmed the use of the Cort test but has also made it clear that the principal focus is on the second of the Cort factors—whether the legislature intended to create a private cause of action. See Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). The first and third of the Cort factors are aids in determining that intent, Touche Ross, 442 U.S. at 575-76, 99 S.Ct. at 2488-89; see also P. Bator, D. Meltzer, P. Mishkin, D. Shapiro, The Federal Courts and the Federal System 946 (1988), and, by negative implication, it is unclear whether the fourth Cort factor—whether the cause of action is generally thought of as a matter of state concern—has any continuing significance. But see Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 393, 102 S.Ct. 1825, 1847, 72 L.Ed.2d 182 (1982) (Court noted that fourth Cort factor favored implying private right of action under a provision of the Commodities Exchange Act.). In sum, unless a congressional intent to create the right of action "can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist." Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981).

It was against that backdrop that Opinion at 8 stated:

At least until otherwise demonstrated, then, it must be considered that AAA provides plaintiffs no direct ticket of entry to this federal court.

That was not of course a prejudgment of the issue—it rather confirmed that the burden rested on plaintiffs to make an affirmative showing of congressional intent to create a private right of action (Boatowners, 716 F.2d at 674). Now they have sought to do just that.³

AAA's enactment antedated the Supreme Court's toughening stance on the implication of private causes of action for statutory violations. It is hardly surprising, then, that AAA's provisions neither expressly create nor expressly deny a private right of action, and its legislative history is equally silent in that respect. Consequently the search has to shift to the general language and structure of the statute and to the circumstances of its enactment (see Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988)).

Initially plaintiffs urge that the circumstances surrounding AAA's enactment support implication of a private right of action. AAA was adopted as an amendment to the Social Security Act, a statute as to which the Supreme Court has allowed private enforcement (e.g., Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980); Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979)). But that fact does not support the parallel inference plaintiffs seek to draw, for the cases to which they point were brought under Section 1983 and not directly under the substantive statute (the Social Security Act). Thus the amendatory character of AAA and the...