U.S. v. Solomon
| Decision Date | 12 October 1977 |
| Docket Number | No. 76-2184,76-2184 |
| Citation | 563 F.2d 1121 |
| Parties | UNITED STATES of America, Appellant, v. Dr. Neil SOLOMON, Secretary of Health and Mental Hygiene of the State of Maryland, Bert W. Schmickel, Director, Mental Retardation Administration, Department of Health and Mental Hygiene of the State of Maryland, and Dr. Marvin M. Malcotti, Superintendent, Rosewood State Hospital, Appellees, The National Association for Retarded Citizens, et al., The State of Texas, The State of Connecticut, Commonwealth of Pennsylvania, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Frank D. Allen, Jr., Atty., U. S. Dept. of Justice, Washington, D.C. (Jervis S. Finney, U.S. Atty., Baltimore, Md., J. Stanley Pottinger, Asst. Atty. Gen., and Brian K. Landsberg, Atty., U. S. Dept. of Justice, Washington, D.C., on brief), for appellant.
Paul Walter, Asst. Atty. Gen. of Maryland, Baltimore, Md. , for appellees.
John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., First Asst. Atty. Gen., Thomas W. Choate, Sp. Asst. Atty. Gen., Richel Rivers, Asst. Atty. Gen. of Texas, Austin, Tex., on brief for Amicus Curiae, State of Texas.
Jeffrey Cooper and Norman J. Watkins, Deputy Attys. Gen., J. Justin Blewitt, Jr. Deputy Atty. Gen., Chief, Civ. Litigation, Robert P. Kane, Atty. Gen., Com. of Pennsylvania, and Carl R. Ajello, Atty. Gen., State of Connecticut, for Amicus Curiae.
Before WINTER, BUTZNER and HALL, Circuit Judges.
The question we must decide is whether the Attorney General of the United States, without specific statutory authorization, has the right to bring suit on behalf of the United States against three state officials, responsible for the operation of a state hospital for the confinement and treatment of mentally retarded persons, to redress the alleged deprivation of Eighth, Thirteenth and Fourteenth Amendment rights of the patients. The district court concluded that he did not and it dismissed the complaint. We agree, and we therefore affirm.
The dismissed complaint alleges that Rosewood State Hospital, located at Owings Mills, Maryland, was established and is operated by officials of the State of Maryland for the purpose of providing treatment and care to mentally retarded persons. Approximately 2,400 persons are patients at Rosewood, and many are committed there and involuntarily confined. About one-half of the patients are younger than twenty-one, and about one-half of the patients are classified as severely or profoundly mentally retarded. It is asserted that, notwithstanding that all, or nearly all, mentally retarded patients at Rosewood are capable of benefitting from treatment and rehabilitative care, defendants, who are charged with responsibility for the operation of Rosewood, have failed or refused to provide treatment and rehabilitative care to patients in a number of respects. It is also asserted that, in a number of respects, defendants have failed or refused to provide Rosewood patients with decent and humane living conditions and to keep them free from harm. As a consequence, it is alleged that the rights of these patients under the Eighth, Thirteenth and Fourteenth Amendments are being infringed.
In a submission made to the district court to supplement the complaint, it is asserted that Rosewood receives substantial amounts of federal funds. For example, in 1975 it received in excess of $5.6 million from the Department of Health, Education and Welfare, mostly as payments under the Medicare Program, in excess of $12,000 from the Department of Defense for providing rehabilitative treatment for military dependents entitled to military health care, and a smaller amount from the Department of Agriculture. Similar payments, in comparable amounts, were made from each of these sources for 1974 and 1973, and some funds from still other federal sources are received.
The complaint alleges that the United States has a direct concern in the proper treatment, habilitation, and rights of mentally retarded patients at Rosewood by virtue of a Presidential Statement on Mental Retardation (November 16, 1971), as well as §§ 1905(c) & (d) of Title XIX of the Social Security Act (42 U.S.C. §§ 1396d(c) & (d)), the Education of the Handicapped Act (20 U.S.C. §§ 1401 et seq.), and the Developmental Disabilities Services and Facilities Construction Act (42 U.S.C. §§ 2661-2666 and 2670-2677c) (as now amended by the Developmentally Disabled Assistance and Bill of Rights Act, P.L. 94-103, 89 Stat. 486, 42 U.S.C. §§ 6001-6012 (1977)). 1
The United States sought equitable relief against continuation of the claimed deprivations asserting it to be the only adequate means of preventing the unconstitutional practices being committed by defendants. The district court, however, dismissed the complaint on the grounds that the United States lacked the authority and standing to bring the suit.
It is too late in the day to deny that in a proper case the protections of the Eighth, Thirteenth and Fourteenth Amendments extend to the mentally retarded who are involuntarily confined. See, e. g., Wyatt v. Aderholt, 503 F.2d 1305, 1316 (5 Cir. 1974). Similarly, we have no doubt that if the United States had authority to bring the suit, the Attorney General of the United States is the one to act as its counsel. The provisions of 28 U.S.C. §§ 516-519 require this conclusion because the language of § 516 could hardly be clearer: "Except as otherwise authorized by law, the conduct of litigation in which the United States . . . is a party . . . is reserved to officers of the Department of Justice, under the direction of the Attorney General." 2 But this statute does not decide this case. It is merely a housekeeping provision. United States v. Daniel, Urbahn, Seelyle and Fuller,357 F.Supp. 853, 857-58 (N.D.Ill.1973); Allen v. School Bd. of Prince Edward City, 28 F.R.D. 358 (E.D.Va.1961). As said in Daniel, Urbahn, Seelyle and Fuller, "(Section 516) does not explicitly provide that officers of the Department of Justice may conduct any litigation in which they believe the government has any interest; it merely provides that if any is conducted, it shall be done by the Department of Justice." 357 F.Supp. at 858.
Thus, the question presented by this case, as we see it, is whether the United States or the Attorney General had authority to sue to redress the alleged deprivations of the patients' rights. The answer to the question is to be found in a consideration of the statutes on which the government relies and a determination of whether they explicitly authorize the suit, and, if they do not, a consideration of the scope and application of the judicially created doctrine of permitting a suit by the United States, despite lack of statutory authorization, in certain areas in which the United States has an interest.
In the instant case, while the United States points to numerous examples of federal legislation evidencing federal interest, concern and action with respect to the mentally retarded, it points to no statute which explicitly authorizes the bringing of this suit. The closest that the government comes to citing a statute granting authority to sue is in its discussion of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6010 et seq., but even then the United States relies not on the statute but on its legislative history. The statute, § 6010, enacts a bill of rights for persons with developmental disabilities; that is, a statement of minimum objectives and standards for their treatment, services and habilitation which is made binding on both the federal government and the states. In the legislative history of this Act, the statement is made that the rights of such persons should be protected and assured by Congress and the courts. Conf.Rep. No. 94-473, 94th Cong., 1st Sess. 42; (1975) U.S.Code Cong. & Admin.News 919, 961. 3
The Act is legislation to provide grants in aid to the states. A grant is given to a state if the state submits a plan complying with the statutory and administrative requirements set forth in §§ 6011 and 6012. Included in these are the requirements of § 6012(a) that the state "will have in effect a system to protect . . . the rights of persons with developmental disabilities" and that the system will "have the authority to pursue legal, administrative, and other appropriate remedies to insure the protection of the rights of such persons . . .." Once a grant has been given to a state, the Act imposes no continuing duty on the United States to see to its proper application. Indeed, § 6003 particularly states that, except as specifically provided otherwise, "nothing contained in this chapter shall be construed as conferring on any Federal officer or employee the right to exercise any supervision or control over the administration, personnel, maintenance or operation" of any facility such as Rosewood.
Thus, we do not think that the Act is capable of a reading that explicitly gives the United States the right to institute this suit. The language in the conference committee report referring to the right to resort to a judicial forum for the protection of the right to treatment manifestly refers to a state judicial forum and not to a federal judicial forum where the United States customarily sues.
Nor do we find implicit authority in any of the legislation on which the government relies to authorize it to sue. 4 We have no doubt that the United States has an interest, in the generic sense, in the subject matter of the suit, and that it has an interest, in the generic sense, in seeing that the various funds which it pays to Rosewood are properly expended. We note that the suit is not one against the State of Maryland to enforce the condition of a grant or for breach of a contract...
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