OFFICE PLANNING GROUP INC V BARAGA-HOUGHTON-KEWEENAW CHILD DEVELO
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 8, 2005
OFFICE PLANNING GROUP, INC.,
Plaintiffs-Appellee,
v
No. 125448
BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
Plaintiff
is
a
disappointed
bidder
that
seeks
disclosure from defendant of bid documents under 42 USC
9839(a), a provision of the federal Head Start Act1 that
requires Head Start agencies to provide for “reasonable
public
access”
to
information.
Defendant
Head
Start
agency contends that the act does not create a private
cause of action to enforce its provisions.
We hold that
the Head Start Act does not contemplate a private cause of
action seeking disclosure of the contested bid documents
under § 9839(a).
1
Accordingly, we reverse the judgment of
42 USC 9831 et seq.
the
Court
of
Appeals
and
enter
judgment
in
favor
of
defendant.
I.
FACTS
AND
PROCEDURAL HISTORY
Defendant, Baraga-Houghton-Keweenaw Child Development
Board, Inc., is a private, nonprofit organization that is
designated as a Head Start2 agency under 42 USC
Defendant
operates
Houghton,
and
defendant
solicited
furniture.
Head
Keweenaw
Start
counties.
bids
for
programs
In
office
9836(a).3
in
Baraga,
January
2001,
supplies
and
Plaintiff, a private, for-profit corporation,
submitted a bid.
Defendant conducted an open meeting at
which its building committee reviewed the bids and made a
recommendation
to
its
board
of
directors.
2
See section III(A) of this opinion.
3
Defendant
42 USC 9836(a) provides:
The Secretary [of Health and Human Services]
is authorized to designate as a Head Start agency
any local public or private nonprofit or forprofit agency, within a community, which (1) has
the power and authority to carry out the purposes
of this subchapter [42 USC
9831 et seq.] and
perform the functions set forth in section 642
[42 USC
9837] within a community; and (2) is
determined by the Secretary (in consultation with
the
chief
executive
officer
of
the
State
involved, if such State expends non-Federal funds
to carry out Head Start programs) to be capable
of
planning,
conducting,
administering,
and
evaluating,
either
directly
or
by
other
arrangements, a Head Start program.
2
accepted
the
lowest
Liimatainen,
bid
at
defendant’s
the
open
executive
meeting.
director,
Rodney
notified
plaintiff’s branch manager, Jack Hamm, that plaintiff’s
bid had exceeded the lowest bid by $10,000.
Hamm, suspicious that the lower bidders had offered
lesser-quality merchandise, requested copies of all the
bids
submitted.
Liimatainen
informed
Hamm
that
the
details of the bids were unavailable for inspection by the
public
because
information
however,
the
other
bidders
disseminated.
that
there
did
Liimatainen
might
be
small
not
want
the
acknowledged,
discrepancies
in
quality, manufacturer, and type of product among the bids
submitted.
In an attempt to compel defendant to disclose
copies of the bids, Hamm then submitted written requests
to defendant under the Michigan Freedom of Information Act
(FOIA).4
Defendant refused the requests on the basis that
it was a private corporation that was not subject to the
FOIA.
bids
Plaintiff also requested copies of the submitted
from
the
Department
of
Health
and
Human
Services
(HHS), the federal agency responsible for administering
the Head Start Act.
4
MCL 15.231 et seq.
3
In April 2001, plaintiff filed an action under the
FOIA5 demanding a complete copy of each bid.
later
filed
an
amended
complaint
alleging
Plaintiff
that
it
was
additionally entitled to disclosure of the bid information
under
unspecified
disclosure
of
“federal
information
legislation
by
parties
which
supplying
under the so-called Head Start Program.”
motion
papers,
plaintiff
indicated
that
requires
service
In subsequent
the
federal
legislation on which it relied was 42 USC 9839(a), which
provides, in relevant part:
Each [Head Start] agency shall also provide
for reasonable public access to information,
including public hearings at the request of
appropriate
community
groups
and
reasonable
public access to books and records of the agency
or other agencies engaged in program activities
or operations involving the use of authority or
funds for which it is responsible.
After the commencement of the litigation, various HHS
officials issued memoranda indicating that defendant was
not
required
under
the
FOIA
or
the
Head
Start
Act
provide plaintiff with access to the bid information.
to
In
a letter to defendant, a program officer in the Chicago
regional office of the HHS advised defendant that Head
5
Although the trial court treated plaintiff’s
complaint as if it contained a claim under the federal
Freedom of Information Act, 5 USC 551 et seq., the parties
agree that plaintiff’s claim was based solely on the
Michigan FOIA.
4
Start grantees are not subject to the FOIA provisions.
The program officer further noted that, under § 9839(a)
and
its
defendant
corresponding
was
HHS
not
regulation,
required
to
45
1301.30,6
CFR
disclose
specific
information regarding the selection of a supplier; rather,
it was required only to disclose general information such
as copies of its written procurement procedures.
Similarly, in a letter to plaintiff’s counsel, the
director of the HHS Office of Public Affairs, FOI/Privacy
Acts
Division,
stated
that
the
FOIA
did
not
apply
to
defendant; however, the director noted that defendant had
provided plaintiff with a copy of the policy it followed
in
conducting
its
procurement
activities
and
with
background documents addressing its source of funding.
The
director
also
wrote
a
letter
advising
defense
counsel that defendant was not subject to the requirements
of the federal Freedom of Information Act.7
6
The director
45 CFR 1301.30 provides:
Head Start agencies and delegate agencies
shall conduct the Head Start program in an
effective and efficient manner, free of political
bias or family favoritism.
Each agency shall
also
provide
reasonable
public
access
to
information
and
to
the
agency's
records
pertaining to the Head Start program.
[Emphasis
supplied.]
7
5 USC 551 et seq.
5
further advised counsel that defendant was bound by any
provisions incorporated into the grant language regarding
its
obligations
to
make
information
concerning
its
activities available to the public, but that defendant had
already complied with those requirements.
Finally,
Stupak,
who
in
a
had
letter
apparently
written
come
to
to
Congressman
plaintiff’s
Bart
aid
in
seeking the bid documents, the director of the HHS Office
of Family and Child Development stated that defendant had
reasonably complied with the requirements of § 9839 and 45
CFR 1301.30 by providing plaintiff with a copy of its
procurement procedures, and that defendant was under no
further
obligation
to
provide
documents
with
specific
commercial information it received through the competitive
bid process.
Citing
these
HHS
memoranda,
defendant
moved
for
summary disposition, arguing that it was not subject to
the Michigan FOIA or the federal FOIA and that defendant
had exceeded any obligation it had to supply plaintiff
with information under 42 USC 9839(a).
The
trial
court
granted
defendant’s
motion
for
summary disposition to the extent that plaintiff sought
6
relief under the Michigan FOIA and the federal FOIA.8
The
court, however, sua sponte granted summary disposition in
favor of plaintiff under MCR 2.116(I)(2) on the ground
that the requested information was subject to disclosure
under § 9839(a).
The court, observing that § 9839(a)
required that a Head Start agency grant “reasonable public
access” to its books and records, opined that
[a] demand that information be provided outside
of working hours would not be reasonable.
A
demand that an agency exhaustively search for
something
that
the
requesting
party
cannot
properly identify would not be reasonable.
As
recognized by the Michigan Freedom of Information
Act, it would likely not be reasonable to expect
an agency to create a record, such as a
compilation or summary, when no such record
exists.
And it may well not be reasonable to
demand that an employee’s personnel file or
disciplinary record be disclosed.
In the present situation, a denial by the
Plaintiff
of
a
written
request
to
review
specified,
existing
and
readily
accessible
written bids is certainly not compliant with a
requirement
of
providing
reasonable
public
access.
That would be true regardless of who
made the request, but the case is even more
compelling when the requesting party has a
genuine, identifiable reason for the information
sought, as did the Plaintiff.
In
summary,
Defendant’s
denial
of
Plaintiff’s request to review and obtain copies
of the bids in question was in violation of the
Federal requirement that Plaintiff provide for
reasonable
public
access
to
information,
including reasonable public access to books and
8
See note 5.
Plaintiff’s FOIA claims are not at
issue in this appeal.
7
records of the agency, involving the use of funds
for which the Plaintiff is responsible.
The Court of Appeals affirmed.9
courts
shared
involving
provide
concurrent
the
for
Head
jurisdiction
Start
exclusive
Noting that the state
Act
because
federal
to
decide
the
act
jurisdiction,10
a
case
did
not
the
panel
rejected the reasoning of federal case law holding that
the Head Start Act does not provide a private cause of
action.11
The panel, citing Long v Chelsea Community Hosp,
219
App
Mich
578;
557
NW2d
157
(1996),
and
Forster
v
Delton School Dist, 176 Mich App 582, 585; 440 NW2d 421
(1989),
inferred
held
that
under
§
a
private
9839(a)
cause
because
of
the
action
could
be
statute
did
not
provide adequate means to enforce its provisions:
The statute in question, 42 USC 9839(a),
requires
Head
Start
agencies
to
provide
reasonable public access to their books and
records, but it does not provide any means of
enforcing this specific provision.
Although the
Head Start Act requires agencies to open their
books and records to the department secretary or
the United States Comptroller General for audit
9
Office Planning Group, Inc v Baraga-HoughtonKeweenaw Child Dev Bd, 259 Mich App 279; 674 NW2d 686
(2003).
10
Gulf Offshore Co v Mobil Oil Corp, 453 US 473, 478;
101 S Ct 2870; 69 L Ed 2d 784 (1981).
11
See Johnson v Quin Rivers Agency for Community
Action, Inc, 128 F Supp 2d 332, 336 (ED Va, 2001); Hodder
v Schoharie Co Child Dev Council, Inc, 1995 US Dist LEXIS
19049 (ND NY, 1995).
8
and
examination,
42
USC
9842,
Congress
specifically provided for public access to the
books and records, not simply to the audits
prepared by these other entities.
Therefore, we
conclude an implied private cause of action
exists.[12]
The panel concluded that the trial court did not err
in
granting
defendant
summary
had
not
disposition
complied
with
for
plaintiff
because
the
“reasonable
public
access” requirement of § 9839(a).
defendant
had
failed
to
The panel, noting that
suggest
why
it
would
be
unreasonable to disclose the requested information, held
that
because
the
information
was
readily
available
and
could be produced on short notice, it was covered by the
statutory
directive
to
provide
“reasonable
public
access.”13
The panel rejected defendant’s contention that
the bidders did not have notice that the bids would be
disclosed, stating that the statute itself provided that
notice; the panel also rejected defendant’s argument that
public policy dictated against interpreting the statute to
require disclosure of the bids.14
Finally, the panel held
that it was not required to defer to the interpretation of
§
9839(a)
set
forth
in
the
letters
written
by
12
259 Mich App at 289-290 (emphasis deleted).
13
259 Mich App at 290-292.
14
259 Mich App at 292-295.
9
HHS
officials,
opining
that
only
a
ruling
from
the
“upper
echelon” of the HHS would be entitled to deference and
that,
in
any
event,
the
officials’
interpretation
was
clearly wrong.15
We
granted
appeal.16
defendant’s
application
for
leave
to
Because we conclude that § 9839(a) does not
provide for a private cause of action, we reverse the
judgment of the Court of Appeals and enter judgment in
favor of defendant.
II.
STANDARD
OF
REVIEW
This case presents issues of statutory construction
and other questions of law.
Such questions are subject to
review de novo by this Court.17
Similarly, we review a
trial court's grant of summary disposition de novo.18
15
259 Mich App at 297.
16
470 Mich 888 (2004).
17
Preserve the Dunes, Inc v Dep't of Environmental
Quality, 471 Mich 508, 513; 684 NW2d 847 (2004); Mack v
Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002); Grand
Traverse Co v Michigan, 450 Mich 457, 463-464; 538 NW2d 1
(1995).
18
Mack, supra at 193.
10
III.
ANALYSIS
A. INTRODUCTION
The Head Start Act was enacted for the purpose of
“promot[ing] school readiness by enhancing the social and
cognitive development of low-income children through the
provision, to low-income children and their families, of
health,
educational,
services
that
are
nutritional,
determined,
assessments, to be necessary.”19
social,
based
other
family
on
and
needs
The secretary of the HHS
is authorized under 42 USC 9836(a) to designate as a Head
Start agency “any local public or private nonprofit or
for-profit agency . . . .”
secretary
Head
to
Start
provide
agencies
The act further authorizes the
financial
assistance
or
for
the
operation
of
9836a,
the
secretary
is
grants
Head
to
Start
programs.20
Under
42
USC
directed
to
establish by regulation standards applicable to Head Start
agencies, including performance standards, administrative
and financial management standards, and standards relating
to the conditions and location of agency facilities.
The
secretary has promulgated regulations implementing these
19
42 USC 9831; see also Action for Boston Community
Dev, Inc v Shalala, 136 F3d 29, 30 (CA 1, 1998).
20
42 USC 9833 to 9835; Community Action of Laramie
Co, Inc v Bowen, 866 F2d 347, 348 (CA 10, 1989).
11
statutory directives.21
The secretary is directed under 42
USC 9836a(c) and (d) to monitor Head Start agencies for
compliance with statutory and regulatory standards and to
take corrective action if necessary.
If an agency does
not comply with such standards, the secretary may initiate
proceedings
to
terminate
the
designation
of
the
agency
unless the agency corrects the deficiency.22
At issue in this case is § 9839(a) of the act, which
provides as follows:
Each
Head
Start
agency
shall
observe
standards
of
organization,
management,
and
administration which will assure, so far as
reasonably possible, that all program activities
are conducted in a manner consistent with the
purposes of this subchapter [42 USC
9831 et
seq.] and the objective of providing assistance
effectively, efficiently, and free of any taint
of partisan political bias or personal or family
favoritism.
Each such agency shall establish or
adopt rules to carry out this section, which
shall
include
rules
to
assure
full
staff
accountability
in
matters
governed
by
law,
regulations, or agency policy. Each agency shall
also provide for reasonable public access to
information, including public hearings at the
request of appropriate community groups and
reasonable public access to books and records of
the agency or other agencies engaged in program
activities or operations involving the use of
authority or funds for which it is responsible.
Each such agency shall adopt for itself and other
agencies using funds or exercising authority for
which it is responsible, rules designed to (1)
establish specific standards governing salaries,
21
See 45 CFR 1304.1.
22
42 USC 9836a(d)(1)(C).
12
salary increases, travel and per diem allowances,
and other employee benefits; (2) assure that only
persons capable of discharging their duties with
competence and integrity are employed and that
employees
are
promoted
or
advanced
under
impartial procedures calculated to improve agency
performance and effectiveness; (3) guard against
personal or financial conflicts of interest; and
(4) define employee duties in an appropriate
manner which will in any case preclude employees
from
participating,
in
connection
with
the
performance of their duties, in any form of
picketing, protest, or other direct action which
is in violation of law. [Emphasis supplied.]
Similarly, Head Start regulation 45 CFR 1301.30 provides
that “[e]ach agency shall also provide reasonable public
access
to
information
and
to
the
agency's
records
pertaining to the Head Start program.”
The
lower
courts
concluded
that
defendant
was
required under the “reasonable public access” provision of
§ 9839(a) to disclose copies of all bids it received in
connection with its January 2001 solicitation of bids for
office
supplies
and
propriety
of
determine
whether
jurisdiction
Next,
we
plaintiff’s
the
lower
the
over
must
furniture.
courts’
trial
plaintiff’s
examine
private
disclosure provision.
of
considering
rulings,
court
§
we
must
properly
claim
whether
cause
In
under
9839(a)
action
to
the
first
exercised
§
9839(a).
allows
for
enforce
the
Although we conclude that the state
courts have jurisdiction over this action, we hold that
§ 9839(a) does not provide for a private cause of action.
13
B. CONCURRENT JURISDICTION
Defendant
first
argues
that
the
state
courts
lack
jurisdiction over plaintiff’s claim under the federal Head
Start Act.23
We disagree and hold that the state courts
23
We note initially that defendant, in support of its
assertion that subject-matter jurisdiction is lacking,
presents a hodgepodge, “shotgun approach” argument that
conflates the concepts of exhaustion of remedies, primary
jurisdiction, “Chevron doctrine” deference, and existence
of a private cause of action under the federal statute at
issue, making it rather difficult to discern what
precisely it is that defendant is arguing. These concepts
are not, in fact, jurisdictional in nature.
See, e.g.,
Northwest Airlines, Inc v Kent Co, Michigan, 510 US 355,
365; 114 S Ct 855; 127 L Ed 2d 183 (1994) (“The question
whether a federal statute creates a claim for relief is
not jurisdictional.”).
In light of our determination that the Head Start
Act, in the first instance, does not provide for a private
cause of action to enforce the public access requirement
of § 9839(a), it is unnecessary to address defendant’s
assertion that primary jurisdiction over this cause of
action lies with the HHS, see Travelers Ins Co v Detroit
Edison Co, 465 Mich 185; 631 NW2d 733 (2001), and its
related
argument
that
plaintiff
failed
to
exhaust
administrative remedies before filing this state-court
action.
However, we note that this case presents a
straightforward issue of statutory construction involving
the meaning of the simple phrase “reasonable public
access.” The interpretation of this particular statutory
language does not require knowledge of sophisticated or
technical terms or the exercise of expert judgment or
discretion.
Because the “reasonable public access”
provision presents a matter that the judiciary is
particularly competent to address, rather than a matter
within the “specialized and expert knowledge” of the HHS,
see id. at 198, primary jurisdiction does not lie with
that
agency.
Moreover,
there
are
no
“prescribed
administrative remedies” that plaintiff has failed to
exhaust before seeking relief under § 9839(a) from the
Footnotes continued on following page.
14
courts. McCarthy v Madigan, 503 US 140, 144-145; 112 S Ct
1081; 117 L Ed 2d 291 (1992).
Defendant’s somewhat cryptic assertion that the state
courts are required to give deference to the HHS’s
interpretation of § 9839(a) warrants additional comment.
Citing the “Chevron doctrine,” see Chevron USA Inc v
Natural Resources Defense Council, Inc, 467 US 837; 104 S
Ct 2778; 81 L Ed 2d 694 (1984), defendant argues that the
state courts are required to give deference to the
determinations of HHS officials regarding the disclosure
required under the act and that the state courts therefore
lack jurisdiction over this action.
Again, defendant is
conflating two discrete doctrines. The concept of Chevron
deference is not jurisdictional; rather, it is a doctrine
that is in the nature of a standard of review, applied by
the
judiciary
in
reviewing
an
agency’s
reasonable
construction of an ambiguous statute, which recognizes
that any necessary policy determinations in interpreting a
federal statute are more properly left to the agency
responsible for administering the particular statute. See
Yellow Transportation, Inc v Michigan, 537 US 36, 47-48;
123 S Ct 371; 154 L Ed 2d 377 (2002); United States v Mead
Corp, 533 US 218, 227-228; 121 S Ct 2164; 150 L Ed 2d 292
(2001), quoting Chevron, supra at 844 (“‘considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to
administer’”).
Again, because we have determined that there is no
private cause of action to enforce the disclosure
requirement of the Head Start Act, we need not address
whether the state courts are required, under Chevron and
Mead, supra, to accord deference to the letters authored
by these HHS officials. However, we note in passing that
these letters presumably lack the “force of law” that is
generally
required
for
application
of
Chevron-type
deference. See, e.g., Shalala v Guernsey Mem Hosp, 514 US
87, 99; 115 S Ct 1232; 131 L Ed 2d 106 (1995) (noting that
administrative interpretive rules, which do not require
notice and comment, “do not have the force and effect of
law and are not accorded that weight in the adjudicatory
process”); Northwest Airlines, supra at 366-367 (noting
that
a
“reasoned
decision”
of
the
Secretary
of
Transportation would be entitled to Chevron-type deference
in a dispute over the meaning of a provision of the AntiHead Tax Act, 49 USC 1513); Human Development Corp of
Footnotes continued on following page.
15
have concurrent jurisdiction with the federal courts to
entertain
plaintiff’s
action
seeking
relief
under
§ 9839(a).
It
has
Congress
long
has
jurisdiction,
not
been
established
provided
state
that,
so
long
as
for
federal-court
may
courts
exclusive
exercise
subject-matter
jurisdiction over federal-law claims “‘whenever, by their
own constitution, they are competent to take it.’”24
courts
possess
sovereignty
concurrent
with
that
State
of
the
federal government, “subject only to limitations imposed
by
the
Supremacy
presumptively
Clause.”25
competent
to
Thus,
assume
state
courts
jurisdiction
are
over
a
Metropolitan St Louis v United States Dep’t of Health &
Human Services, 312 F3d 373, 379 (CA, 8, 2002) (applying
Chevron deference to a final decision of the HHS’s
Departmental
Appeals
Board
interpreting
an
HHS
regulation); see also Mead, supra at 236, n 17;
Christensen v Harris Co, 529 US 576, 586-587; 120 S Ct
1655; 146 L Ed 2d 621 (2000).
24
Tafflin v Levitt, 493 US 455, 459; 110 S Ct 792;
107 L Ed 2d 887 (1990), quoting Claflin v Houseman, 93 US
130, 136; 23 L Ed 833 (1876).
25
Tafflin, supra at 458. See US Const, art VI, cl 2
(“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”).
16
cause of action arising under federal law.26
If concurrent
jurisdiction otherwise exists, subject-matter jurisdiction
over a federal-law claim is governed by state law.27
In
determining
whether
our
state
courts
enjoy
concurrent jurisdiction over a claim brought under federal
law,
it
is
necessary
to
determine
whether
Congress
intended to limit jurisdiction to the federal courts.
"In considering the propriety of state-court
jurisdiction over any particular federal claim,
the Court begins with the presumption that state
courts enjoy concurrent jurisdiction.
Congress,
however, may confine jurisdiction to the federal
courts either explicitly or implicitly.
Thus,
the presumption of concurrent jurisdiction can be
rebutted by an explicit statutory directive, by
unmistakable
implication
from
legislative
history, or by a clear incompatibility between
state-court
jurisdiction
and
federal
interests."[28]
26
Tafflin, supra at 459; Gulf Offshore Co, supra at
478; Charles Dowd Box Co, Inc v Courtney, 368 US 502, 507508; 82 S Ct 519; 7 L Ed 2d 483 (1962).
27
28
Gulf Offshore Co, supra at 478.
Tafflin, supra at 459-460, quoting Gulf Offshore
Co, supra at 478 (citations omitted); see also Peden v
Detroit, 470 Mich 195, 201 n 4; 680 NW2d 857 (2004).
Although we, of course, must apply these federal-law
principles in determining whether concurrent jurisdiction
exists under the federal statute, we would be remiss if we
failed to note that the use of legislative history in the
search for legislative intent “‘is a perilous venture . .
. [that is] doubly fraught with danger in Michigan which,
unlike Congress, has failed to create an authoritative
legislative record.’”
Frank W Lynch & Co v Flex
Technologies, Inc, 463 Mich 578, 587 n 7 (2001), quoting
People v Tolbert, 216 Mich App 353, 360 n 5; 549 NW2d 61
Footnotes continued on following page.
17
Defendant does not present a coherent argument that
the
courts
of
this
state
lack
jurisdiction
over
the
parties’ dispute concerning the disclosure of documents
under § 9839(a).
Rather, defendant simply contends that
the “expansive regulatory scheme” of the Head Start Act
“evidences Congressional intent that the HHS exercise its
sole
discretion
over
its
administration
Start agencies through its regulations.”
of
local
Head-
Defendant has
conflated the vesting of discretion in federal agencies
with the vesting of jurisdiction in the federal courts:
That a particular agency has discretion to administer a
federal
statute
and
to
implement
regulations
for
the
enforcement of the statute does not address whether state
courts have concurrent jurisdiction over a dispute arising
under that statute.
whether
Congress
Instead, our inquiry is limited to
intended
to
limit
to
federal
courts
exclusive jurisdiction over such a dispute and, if not,
whether state law allows our courts to exercise subjectmatter jurisdiction over the action.
Defendant concedes that nothing in the Head Start Act
explicitly confines jurisdiction to the federal courts,
and defendant does not point to any statutory indication
(1996).
18
that Congress intended that jurisdiction over a dispute
under the Head Start Act should lie solely in the federal
courts.
We have been unable to locate anything in the
legislative history of the act demonstrating an intent to
grant exclusive federal-court jurisdiction, and defendant
has certainly failed to bring any such information to our
attention.
between
with
Moreover, there is no “clear incompatibility”
state-court
respect
to
jurisdiction
application
and
of
the
federal
Head
interests
Start
Act,
particularly with respect to a straightforward question of
statutory construction such as the one presented in this
case.
Indeed, as noted in Gulf Offshore Co v Mobil Oil
Corp, 453 US 473, 478 n 4; 101 S Ct 2870; 69 L Ed 2d 784
(1981), “[p]ermitting state courts to entertain federal
causes of action facilitates the enforcement of federal
rights.”
Congress
has
done
nothing
in
the
exercise
of
its
powers under the Supremacy Clause to “affirmatively divest
state
courts
jurisdiction”
Act.29
of
over
their
claims
presumptively
brought
under
the
concurrent
Head
Start
Additionally, it is clear that the courts of this
state have subject-matter jurisdiction over the dispute at
29
Yellow Freight Sys, Inc v Donnelly, 494 US 820,
823; 110 S Ct 1566; 108 L Ed 2d 834 (1990).
19
issue, because our Constitution provides that the circuit
courts of this state have original jurisdiction “in all
matters not prohibited by law . . . .”30
Accordingly, we
hold that the courts of this state have properly exercised
concurrent jurisdiction over plaintiff’s § 9839(a) claim.
C.
PRIVATE CAUSE
OF
ACTION
TO
ENFORCE § 9839(a)
Defendant next contends that plaintiff’s claim fails
because § 9839(a) does not provide for a private cause of
action
to
enforce
the
public
access
requirement.
We
agree.
1. WHETHER A CAUSE OF ACTION EXISTS IS SOLELY
A MATTER OF STATUTORY CONSTRUCTION
“‘[T]he fact that a federal statute has been violated
and some person harmed does not automatically give rise to
a private cause of action in favor of that person.’”31
Rather, “[l]ike substantive federal law itself, private
rights of action to enforce federal law must be created by
Congress.”32
Thus, in determining whether plaintiff may
bring a private cause of action to enforce the public
30
Const 1963, art 6, § 13.
31
Touche Ross & Co v Redington, 442 US 560, 568; 99 S
Ct 2479; 61 L Ed 2d 82 (1979), quoting Cannon v Univ of
Chicago, 441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560
(1979).
32
Alexander v Sandoval, 532 US 275, 286; 121 S Ct
1511; 149 L Ed 2d 517 (2001); see also Touche Ross & Co,
supra at 578.
20
access requirement of § 9839(a), we must determine whether
Congress
intended
to
create
such
a
cause
of
action.33
Because the Head Start Act does not evidence an intent to
create a private remedy for an alleged violation of §
9839(a), plaintiff’s action must be dismissed.
Although the United States Supreme Court in the last
century
embraced
a
short-lived
willingness
to
create
remedies to enforce private rights,34 the Court “abandoned”
that approach to statutory remedies in Cort v Ash35 and
“[has] not returned to it since.”36
33
In Cort, the Court set
Alexander, supra at 286-287.
34
See, e.g., Bivens v Six Unknown Named Agents of Fed
Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d
619 (1971) (inferring a private cause of action for
damages to enforce the Fourth Amendment guarantee against
unreasonable searches and seizures); J I Case Co v Borak,
377 US 426, 433; 84 S Ct 1555; 12 L Ed 2d 423 (1964)
(holding that “it is the duty of the courts to be alert to
provide such remedies as are necessary to make effective
the congressional purpose” of a federal statute).
See
also, generally, Correctional Services Corp v Malesko, 534
US 61, 75; 122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia,
J., concurring) (noting that “Bivens is a relic of the
heady days in which this Court assumed common-law powers
to create causes of action—decreeing them to be ‘implied’
by the mere existence of a statutory or constitutional
prohibition”); Note, Section 1983 and implied rights of
action: Rights, remedies, and realism, 90 Mich L R 1062,
1071-1083 (1992) (exploring the evolution of the United
States
Supreme
Court’s
implied
right
of
action
jurisprudence and its subsequent retreat).
35
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
36
Alexander, supra at 287.
21
forth a test for determining whether a private remedy is
implicit in a statute that does not expressly provide such
a remedy:
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?[37]
Post-Cort,
the
Court
has
become
increasingly
reluctant to imply a private cause of action, preferring
to focus exclusively on the second Cort element, which
requires indicia of congressional intent to create a cause
of action.
Chicago,38
factors,
For example, as early as Cannon v Univ of
although
it
the
Court
characterized
the
applied
each
of
determination
the
Cort
whether
a
private remedy existed to enforce a statutory right as a
matter of “statutory construction.”39
37
38
In Touche Ross &
Cort, supra at 78 (emphasis deleted).
441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560
(1979).
39
See also Merrell Dow Pharmaceuticals Inc v
Thompson, 478 US 804, 812; 106 S Ct 3229; 92 L Ed 2d 650
Footnotes continued on following page.
22
Co,40 the Court declined to even address the remaining Cort
factors where it was clear that Congress did not intend to
create a private cause of action to enforce § 17(a) of the
Securities Exchange Act of 1934:41
It is true that in Cort v. Ash, the Court
set forth four factors that it considered
"relevant" in determining whether a private
(1986), noting that it would “flout congressional intent
to provide a private federal remedy” for an alleged
violation of the federal Food, Drug, and Cosmetic Act, 21
USC 301 et seq.:
See, e.g., Daily Income Fund, Inc. v. Fox,
464 US 523, 535-536 (1984) ("In evaluating such a
claim, our focus must be on the intent of
Congress
when
it
enacted
the
statute
in
question."); Middlesex County Sewerage Authority
v. National Sea Clammers Assn., 453 U.S., at 13
("The key to the inquiry is the intent of the
Legislature.");
Texas
Industries,
Inc.
v.
Radcliff Materials, Inc., 451 U.S. 630, 639
(1981) ("Our focus, as it is in any case
involving the implication of a right of action,
is on the intent of Congress."); California v.
Sierra Club, 451 U.S. at 293 ("[The] ultimate
issue is whether Congress intended to create a
private right of action."); Northwest Airlines,
Inc. v. Transport Workers, 451 U.S. 77, 91 (1981)
("The ultimate question in cases such as this is
whether Congress intended to create the private
remedy."); Transamerica Mortgage Advisors, Inc.
v. Lewis, 444 U.S. 11, 15 (1979) ("The question
whether a statute creates a cause of action,
either expressly or by implication, is basically
a matter of statutory construction."); Touche
Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)
("The question of the existence of a statutory
cause of action is, of course, one of statutory
construction."). [Merrell, supra at 812 n 9.]
40
Touche Ross & Co, supra at 575-576.
41
15 USC
78q(a).
23
remedy is implicit in a statute not expressly
providing one. But the Court did not decide that
each of these factors is entitled to equal
weight.
The central inquiry remains whether
Congress intended to create, either expressly or
by implication, a private cause of action.
Indeed, the first three factors discussed in
Cort—the language and focus of the statute, its
legislative history, and its purpose, see 422
U.S. at 78—are ones traditionally relied upon in
determining
legislative
intent.
Here,
the
statute by its terms grants no private rights to
any identifiable class and proscribes no conduct
as unlawful.
And the parties as well as the
Court of Appeals agree that the legislative
history of the 1934 Act simply does not speak to
the issue of private remedies under § 17 (a). At
least in such a case as this, the inquiry ends
there: The question whether Congress, either
expressly or by implication, intended to create a
private right of action, has been definitely
answered in the negative.
Similarly, in California v Sierra Club,42 the Court,
noting
that
Congress
“the
intended
consideration
dispositive.
of
focus
to
of
the
inquiry
a
remedy,”
create
the
first
Because
there
two
was
is
whether
concluded
Cort
no
on
that
factors
was
indication
that
Congress intended to create a private remedy to enforce §
10 of the Rivers and Harbors Appropriation Act of 1899,43
the Court held that it was unnecessary to inquire further
into the remaining factors, because “[t]hese factors are
42
451 US 287, 297; 101 S Ct 1775; 68 L Ed 2d 101
(1981).
43
33 USC 403.
24
only of relevance if the first two factors give indication
of congressional intent to create the remedy.”44
In Alexander, the Court appears to have abandoned the
Cort inquiry altogether in favor of a completely textual
analysis in determining whether a private remedy exists
under a particular statute.
factors,
basis
the
of
Alexander
the
individuals
text
could
of
not
Rather than applying the Cort
Court
42
sue
concluded,
USC
to
solely
2000d-1,
enforce
that
on
the
private
disparate-impact
regulations promulgated under Title VI of the Civil Rights
Act of 1964.
The Court rejected the plaintiff’s argument
that dispositive weight could be accorded to context shorn
of text, holding that “legal context matters only to the
extent
it
additionally
clarifies
rejected
text.”45
the
The
Alexander
dissent’s
claim
majority
that
the
position adopted “‘blind[ed] itself to important evidence
of
congressional
44
intent,’”
noting
that
the
methodology
Sierra Club, supra at 298.
This Court has also noted the paramount importance of
legislative intent in determining whether a private cause
of action can be founded on an alleged violation of a
statute. See Gardner v Wood, 429 Mich 290, 302 n 6; 414
NW2d 706 (1987) (noting that Cort marked “the beginning of
a trend in the federal courts to reserve the creation of
civil remedies from penal violations only where to do so
[was] clearly consistent with affirmative legislative
intent”).
45
Alexander, supra at 288.
25
employed in the majority opinion was well established in
earlier decisions that explained “that the interpretive
inquiry begins with the text and structure of the statute
. . . and ends once it has become clear that Congress did
not provide a cause of action.”46
2.
THE HEAD START ACT DOES NOT PROVIDE
With
examine
46
the
the
aforementioned
text
of
the
Head
FOR A
PRIVATE CAUSE
principles
Start
Act
in
to
OF
ACTION
mind,
we
determine
Id. at 288 n 7.
Our dissenting colleagues assert that we have
incorrectly characterized Touche Ross & Co and Alexander
as representing a departure from the four-factor Cort
test.
Post at 3-4.
Whether the United States Supreme
Court will, in the future, continue to apply the four-part
Cort test is, however, simply irrelevant where it is clear
from the text of the statute at issue that Congress did
not intend to create a private enforcement action.
Indeed, this case is directly analogous to Touche Ross &
Co and Alexander.
As the dissent points out, the
provisions at issue in Touche Ross & Co and Alexander
neither conferred rights on individuals nor proscribed
conduct as unlawful. The same can certainly be said of 42
USC 9839(a).
Similarly, the dissent notes that the
Alexander Court found it quite telling that the statute at
issue expressly empowered governmental agencies to enforce
regulations.
The Head Start Act does precisely that, by
directing the secretary to establish regulations governing
Head Start agencies and to enforce those regulations, and,
in 42 USC 9839(a), by requiring Head Start agencies to
conduct program activities in conformity with the Head
Start Act and to establish or adopt rules to carry out
that duty.
We note, in passing, that Justice Weaver’s separate
dissent merely echoes the longer dissent of Justice Kelly.
Accordingly, we respond to both in kind.
26
whether
it
provides
for
a
private
cause
of
action
to
enforce § 9839(a).
To date, two federal district courts have considered
whether
causes
of
action
existed
provisions of the Head Start Act.
Appeals
cited
these
cases,
it
under
different
Although our Court of
rejected
their
analyses
without explanation.
In Hodder, supra, the United States District Court
for the Northern District of New York applied the Cort
factors
and
concluded
that
the
plaintiffs,
former
employees of a Head Start agency, could not bring a cause
of action for wrongful discharge under the Head Start Act:
Turning
to
the
first
[Cort]
factor,
plaintiffs are far-removed from the class for
whose special benefit Congress enacted the Head
Start Act.
The purpose of this Act is to
authorize the appropriation of funds for Project
Head Start's "effective delivery of comprehensive
health, educational, nutritional, social and
other services to economically disadvantaged
children and their families." 42 USC § 9831(a).
Hence, the class for whose special benefit
Congress passed the Head Start Act is the class
of economically disadvantaged children and their
families who need the specified services, which
do not under any reasonable interpretation of the
Act include employment services. Indeed, a Head
Start agency would likely violate the Act if it
employed the parent of Head Start child. See 42
USC § 9839(a)(3).
Plaintiffs' assertion that
"employees of Head Start agencies . . . are
members of a class which is specially addressed
are protected by the Act and regulations" is
legally unsupported and legally unsupportable.
. . . Congress plainly did not enact the Head
Start Act in order to benefit Head Start
employees.
27
As to the second Cort factor, the Court has
found no indication that Congress intended the
Act or its interpretive regulations to create a
private right of action for employees who are
terminated from Head Start agencies in a manner
allegedly
inconsistent
with
those
rules.
Plaintiffs admit that the Act lacks any explicit
indication that Congress intended to create a
cause of action for these employees, but argue
that § 9849(b) of the Act "specifically negates
any intent to deny such a cause of action." . . .
Section 9849(b) concerns the application of the
Civil Rights Act to any sexual discrimination
that may occur in connection with Head Start
programs or activities. The last sentence states
that the section "shall not be construed as
affecting any other legal remedy that a person
may have if such person is . . . denied
employment in connection with[] any [Head Start]
program, project, or activity . . . ."
At
best,
this
sentence
reveals
a
congressional unwillingness to interfere with any
of the state and federal remedies that may be
available to people who are denied jobs at Head
Start agencies; it certainly does not reveal a
congressional intent to create a private right of
action under the Head Start Act for people who
are
fired
from
Head
Start
agencies.
As
plaintiffs surely realize, if courts inferred
from Congress' failure to prohibit a private
cause of action the congressional intent to
create a private cause of action, courts would
read into almost every federal statute an implied
right of action.
In the majority of instances,
this curious interpretive method would undermine
congressional intent rather than effectuate it.
It also runs counter to the Supreme Court's
demonstrated reluctance to infer private causes
of action from federal statutes. . . .
Plaintiffs fare no better under the third
Cort factor because implying a private right of
action from the Head Start Act would do little or
nothing to further the underlying purposes of the
legislative scheme. . . .
* * *
28
We now come to the fourth Cort factor.
Plaintiffs cast their claim as one "based on
employee
discharge
in
violation
of
federal
policies . . . ." . . . For purposes of
determining the existence of subject matter
jurisdiction, however, the Court considers the
true nature of plaintiffs' action. . . . Although
plaintiffs carefully avoid the phrase in their
complaint, the essence of their claim is breach
of an employment contract. Actions of this kind
are traditionally relegated to state law.
Thus
the fourth Cort factor, along with the first
three, strongly support the conclusion that the
Head Start Act does not contain an implied
private right of action for people who are
terminated from Head Start agencies.[47]
Similarly, in Johnson, supra, the plaintiff alleged
that the defendants had mismanaged a Head Start program in
violation of federal regulations.
The District Court for
the Eastern District of Virginia held that Congress did
not intend to provide a private cause of action to enforce
the federal regulations:
In this case, the applicable statutory
scheme is set forth pursuant to the Head Start
Act, 42 U.S.C. §§ 9831-9852a. Under the scheme,
the Secretary of the Department of Health and
Human Services is directed to "establish by
regulation standards applicable to Head Start
agencies, programs, and projects under this
subchapter," including "minimum levels of overall
accomplishment that a Head Start agency shall
achieve."
42 U.S.C. § 9836a(a)(1) & (2).
The
Secretary is also directed under this section to
monitor the performance of every Head Start
program and to take appropriate corrective action
when a program fails to meet the performance
standards
established
by
the
regulations.
47
Hodder, supra at *11-*16 (citations omitted).
29
Specifically, the Act requires a full review of
each grantee at least once during each three-year
period,
review
of
new
grantees
after
the
completion of the first year, follow up reviews
and return visits to grantees that fail to meet
the
standards,
and
"other
reviews
as
appropriate."
42 U.S.C. § 9836a(c).
If the
Secretary determines, on the basis of such a
review, that a grantee fails to meet the
standards described in § 9836a(a), the Secretary
shall, inter alia, institute proceedings to
terminate the Head Start grant unless the agency
corrects the deficiency. 42 U.S.C. § 9836a(d).
All but three of the regulations cited in
plaintiff's
Second
Amended
Complaint
were
promulgated pursuant to the Head Start Act. See
45 C.F.R. § 1304.1. There is no provision in the
Head Start Act, however, permitting a private
citizen to enforce its provisions. Based on the
alternative specific remedies mentioned above,
Congress' intent is clear.
The remedy for
substandard performance by a Head Start program
is an enforcement action by the Secretary of the
Department of Health and Human Services, not by
private litigants.
For these reasons, the Court
dismisses
with
prejudice
plaintiff's
claims
alleging violations of statutory and regulatory
provisions relating to the Head Start Act, for
failure to state a claim upon which relief can be
granted.[48]
We
find
Hodder
and
Johnson
to
be
persuasive
and
similarly conclude, on the basis of the text and structure
of the Head Start Act, that no private cause of action
exists to enforce § 9839(a).
The act, of course, does not expressly provide for a
private
cause
requirement
48
of
of
§
action
9839(a).
to
enforce
Thus,
Johnson, supra at 336-337.
30
the
the
disclosure
question
becomes
whether
the
text
of
the
act
demonstrates
an
implicit
intent to provide for a private cause of action.
Again, the stated purpose of the act is to promote
school
readiness
by
providing
children and their families.
services
to
42 USC 9831.
low-income
The act does
not contemplate any benefit to private corporations such
as plaintiff; nor does it indicate any intent that such a
private
Where
corporation
the
may
intended
sue
to
enforce
beneficiaries
its
are
provisions.
specifically
identified, we are loath to create a private means of
seeking redress under the act for nonbeneficiaries.
More
important,
mechanism
provisions.
for
the
ensuring
act
contains
agency
a
comprehensive
compliance
with
its
We agree with the Johnson court that, far
from demonstrating an intent to allow for a private cause
of action, the act indicates that the sole remedy for a
violation of § 9839(a) is an enforcement proceeding by the
secretary of the HHS and the possible termination of Head
Start agency status.
See 42 USC 9836a.
In light of this clear indication of congressional
intent, we are precluded from venturing beyond the bounds
of the statutory text to divine support for the creation
of a private claim to enforce § 9839(a).
To do so would
be to substitute our own judgment for that of Congress and
31
thus to usurp legislative authority, something that we of
course decline to do.49
IV.
CONCLUSION
Because the Head Start Act does not provide for a
private
cause
of
action
to
enforce
the
disclosure
requirement of § 9839(a), plaintiff has failed to state a
cognizable claim.
the
Court
of
Accordingly, we reverse the judgment of
Appeals
and
enter
judgment
in
favor
of
defendant.
Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman
49
Again, contrary to the assertions of our dissenting
colleagues, we do not miss any “important distinction”
between the statutes at issue in Touche Ross & Co and
Alexander and the statute at issue in this case, and this
case does not represent the “opposite situation” of the
situations present in those cases.
Post at 6.
Rather,
just as the provisions at issue in Touche Ross & Co and
Alexander, 42 USC 9839(a) “call[s] for oversight by
governmental agencies.”
Post at 6.
Moreover, we wholly
disagree with the dissent’s contention that § 9839(a)
“specifically confers an individual right on members of
the public to conduct inspections of books and records.”
Post at 6.
Rather, § 9839(a) imposes on Head Start
agencies a disclosure requirement, and 42 USC 9836a
explicitly provides a remedy for a violation of that
requirement: corrective action to be initiated by the
secretary.
32
S T A T E
O F
M I C H I G A N
SUPREME COURT
THE OFFICE PLANNING GROUP, INC.,
Plaintiff-Appellee,
v
No. 125448
BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD, INC.,
Defendant-Appellant.
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the majority opinion to the extent it
holds that the state courts have concurrent jurisdiction in
this matter.
I
9839(a)
dissent
of
from
the
the
federal
majority
Head
holding
Start
Act
that
does
not
42
USC
permit
plaintiff to seek disclosure of information relevant to the
defendant’s decision on competing bids for a contract.
42
USC 9839(a) provides, in pertinent part:
Each [Head Start] agency shall also provide
for reasonable public access to information,
including public hearings at the request of
appropriate
community
groups
and
reasonable
public access to books and records of the agency
or other agencies engaged in program activities
or operations involving the use of authority or
funds for which it is responsible.
For the reasons stated in Justice Kelly’s dissent, I
would
hold
that
this
statutory
language
does
provide
plaintiff
a
right
to
seek
“reasonable”
disclosure
of
records pertaining to contract bids submitted to a Head
Start agency.
I
write
separately
to
elaborate
on
the
majority’s
misreading of the effect of Alexander v Sandoval1 on Cort v
Ash.2
Specifically, the majority is wrong to suggest that
Alexander
“appears
to
have
abandoned
the
Cort
inquiry
altogether in favor of a completely textual analysis in
determining
whether
particular statute.”
a
private
remedy
exists
under
a
Ante at 26.
Cort identified four factors relevant to determining
whether a federal statute implied a private remedy where
the statute did not expressly provide one.
Cort held:
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
1
532 US 275; 121 S Ct 1511; 149 L Ed 2d 517 (2001).
2
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
2
inappropriate to infer a
solely on federal law?[3]
cause
of
action
based
Unlike Cort’s focus on whether a cause of action can
be inferred from a statute, Alexander involved a distinct
issue: whether a private cause of action could be inferred
from a regulation that forbids conduct beyond that which
was forbidden by the statute under which the regulation was
promulgated.4
Because
the
conduct
at
issue
in
Alexander
was
prohibited by a regulation, but not by the statute pursuant
to which the regulation was adopted, Alexander held that a
cause
of
3
action
alleging
conduct
in
violation
of
the
Cort, supra at 78.
4
Alexander involved an interpretation of Title VI of
the Civil Rights Act of 1964, which provides in § 601 that
no person shall, "on the ground of race, color, or national
origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity" covered by Title VI.
42 USC 2000d.
Section 602 of the statute authorizes federal agencies to
implement the provisions in § 601 by regulations.
The Department of Justice adopted regulations pursuant
to § 602 that forbid funding recipients from adopting
policies that created a disparate impact on individuals
because of their race, color, or national origin. See 28
CFR 42.104(b)(2) (1999). Claiming that an English-only
policy caused such disparate impacts, the plaintiffs in
Alexander sued to enjoin the policy.
While the Alexander
Court assumed that the regulations were valid, the Court
held that there was no private cause of action as a result
of the policy because § 601 did not prohibit disparate
impacts.
3
regulation could not be inferred from the statute.
Given
this situation, it was unnecessary for Alexander to delve
deeply into the Cort factors to resolve whether a cause of
action could be inferred from the statute.
Though the majority may prefer that Cort’s factors be
abandoned and a “completely textual” approach be adopted,
neither
logic
preference.
nor
federal
precedent
supports
its
First, it is absurd to advocate a “completely
textual approach” where the need to examine whether a cause
of action may be inferred from a statute is engendered by
the lack of an expressly stated cause of action in the text
of the statute.
Further, the majority makes no attempt to
explain how its “completely textual” approach differs from
the Cort factors.
Second, while the majority correctly notes that not
every federal case involving whether a private cause of
action may be inferred from a statute has applied all the
four Cort factors, it is an overstatement to suggest that
the
federal
altogether.”
employ a
courts
have
“abandoned
the
Cort
inquiry
Even federal cases relied on by the majority
Cort-based
analysis.
For example in
Hodder v
Schoharie Co Child Dev Council, Inc, 1995 US Dist LEXIS
19049, *10 (ND NY, 1995), the court premised its analysis
as follows:
4
The Court may infer a private right of
action from a federal statute that does not
expressly create one only if the statute's
language, structure, and legislative history
reveal Congress' intent to create a private right
of action. See Thompson v. Thompson, 484 U.S.
174, 179, 98 L. Ed. 2d 512, 108 S. Ct. 513
(1988); Touche Ross & Co. v. Redington, 442 U.S.
560, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979); Cort
v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct.
2080 (1975). Courts normally try to divine
Congressional intent by applying the four Cort
factors: 1) whether plaintiffs belong to the
class for whose special benefit Congress passed
the
statute;
2)
whether
the
indicia
of
legislative intent reveal a congressional purpose
to provide a private cause of action; 3) whether
implying a private cause of action is consistent
with the underlying purposes of the legislative
scheme; and 4) whether the plaintiff's cause of
action concerns a subject that is traditionally
relegated
to
state
law.
Merrell
Dow
[Pharmaceuticals Inc v Thompson], 478 U.S. [804,
810-811; 106 S Ct 3229; 92 L Ed 2d 650 (1986)];
Cort, 422 U.S. at 78.
Hodder applied each factor from Cort to the provision
of the Head Start Act at issue in that case.
That the majority misunderstands Alexander’s effect is
underscored
by
a
recent
United
States
Supreme
Court
decision, Jackson v Birmingham Bd of Ed, ___ US ___, ___;
125 S Ct 1497, 1506; 161 L Ed 2d 361, 373 (2005), where the
Court
emphasized
premised
Alexander
on
the
that
fact
extended
Alexander’s
that
the
protection
statute at issue in Alexander.
Alexander, Jackson stated:
5
holding
regulations
beyond
the
is
simply
at
issue
limits
of
in
the
Describing the holding of
[In Alexander] we rejected the contention
that the private right of action to enforce
intentional violations of Title VI encompassed
suits
to
enforce
the
disparate-impact
regulations. We did so because "it is clear . . .
that the disparate-impact regulations do not
simply apply §
601 -- since they indeed forbid
conduct that §
601 permits -- and therefore
clear that the private right of action to enforce
§
601 does not include a private right to
enforce these regulations." [Alexander] at 285,
149 L. Ed. 2d 517, 121 S. Ct. 1511. See also
Central Bank of Denver, N. A. v. First Interstate
Bank of Denver, N. A., 511 U.S. 164, 173, 128 L.
Ed. 2d 119, 114 S. Ct. 1439 (1994) (A "private
plaintiff may not bring a [suit based on a
regulation] against a defendant for acts not
prohibited by the text of [the statute]").
In this case we must necessarily look beyond the text
of
the
statute
at
issue
to
discern
whether
Congress
intended that a private person be able to seek disclosure
of documents from a Head Start agency.
The text of the
statute at issue in this case, 42 USC 9839(a), does not
expressly create a private cause of action to enforce its
provision regarding public access to information.
Thus, it
is necessary to look beyond the text to determine whether
Congress intended to create a private cause of action.
As
recognized in California v Sierra Club, 451 US 287, 293;
101 S Ct 1775; 68 L Ed 2d 101 (1981), the four Cort factors
present the relevant inquiries to pursue in
answering the recurring question of implied
causes of action. Cases subsequent to Cort have
explained that the ultimate issue is whether
Congress intended to create a private right of
action . . . but the four factors specified in
6
Cort remain the "criteria through which this
intent could be discerned." [Citations omitted.]
Given the task at hand and the federal precedent by
which we are bound, it is absurd to suggest that we must
employ a “completely textual” approach.
Any inquiry into
whether a private cause of action may be inferred requires
consideration of the intent of Congress and Cort is our
guide.
Regardless
of
the
majority’s
apparent
discomfort
with Cort’s factors and inferred causes of action, we are
bound by federal law and five votes have not combined in
any one case in the United States Supreme Court to declare
Cort a dead letter.5
Elizabeth A. Weaver
5
In Thompson v Thompson, 484 US 174; 108 S Ct
L Ed 2d 512 (1988), Justice Scalia (concurring
judgment) expressed his vigorous disagreement with
the Court should reaffirm Cort and whether
appropriate to infer private causes of action from
statutes that do not expressly provide them.
Scalia’s view of Cort and inferred causes of action
yet garnered the requisite five votes.
7
513; 98
in the
whether
it was
federal
Justice
has not
S T A T E
O F
M I C H I G A N
SUPREME COURT
THE OFFICE PLANNING GROUP, INC.,
Plaintiff-Appellee,
v
No. 125448
BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD, INC.,
Defendant-Appellant.
_______________________________
KELLY, J. (dissenting).
I agree with the majority that our state courts have
jurisdiction over plaintiff’s claim under the federal Head
Start Act, 42 USC 9831 et seq.
However, I disagree with
its conclusion that the act, at 42 USC 9839(a), does not
provide a private cause of action.
The statutory language,
the focus of the legislation, its history, and its purpose
imply
a
congressional
Therefore,
I
would
intent
find
to
such
allow
a
private
right
and
actions.
affirm
the
decision of the Court of Appeals.
Defendant’s Various Jurisdictional Challenges
Defendant raises a variety of jurisdictional arguments
on appeal.
with
the
It claims that primary jurisdiction must rest
Department
of
Health
and
Human
Services
(HHS)
because, otherwise, an “imbalance” would be created in the
administration of the Head Start Act.
This Court explained
the doctrine of primary jurisdiction in Travelers Ins Co v
Detroit Edison Co, 465 Mich 185; 631 NW2d 733 (2001).
It
is based on the principle of separation of powers and is
concerned
with
the
respect
appropriately
shown
to
an
agency's decisions made in the performance of regulatory
duties.
The
Id. at 196-197.
primary
jurisdiction
doctrine
underscores
the
notion that administrative agencies possess specialized and
expert knowledge to address the matters they regulate.
at 198.
Id.
The question of primary jurisdiction arises only
with respect to matters that Congress has assigned to a
governmental
agency
or
administrative
body.
Attorney
General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d
805 (1982).
This case does not concern such matters.
Moreover,
resolution
specialized knowledge.
of
this
case
does
not
require
Instead, it involves a straight-
forward question of statutory interpretation.
This Court
is well equipped to handle such questions because they do
not
require
specialized
or
expert
scope of our general jurisdiction.
knowledge
outside
the
Therefore, the primary
jurisdiction doctrine simply does not apply to this case.
Id.; Travelers, supra at 198-199.
2
Defendant complains that, under the Chevron1 doctrine,
the
meaning
access”
in
that
HHS
various
has
letters
should be definitive.
given
to
“reasonable
interpreting
42
USC
public
9839(a)
Chevron directs that considerable
weight be accorded an agency’s construction of a statutory
scheme.
Chevron, supra at 844.
But this applies only when
the decision involves reconciling conflicting policies and
requires more than ordinary knowledge of matters that the
agency regulates.
Id.
This case does not demand a detailed knowledge of the
subject matter of the Head Start Act.
Nor does it concern
a complicated matter of interagency interaction or policy.
It does not require detailed knowledge of the workings of
the
Head
statutory
Start
Act.
Rather,
construction.
No
it
involves
special
also
argues
that
we
issue
expertise
required, the Chevron doctrine does not apply.
Defendant
an
lack
of
being
Id.
jurisdiction
because plaintiff failed to exhaust all its administrative
remedies.
But the United States Supreme Court has ruled
that “where Congress has not clearly required exhaustion,
sound judicial discretion governs.”
McCarthy v Madigan,
503 US 140, 144; 112 S Ct 1081; 117 L Ed 2d 291 (1992).
1
42
Chevron USA Inc v Natural Resources Defense Council,
Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
3
USC
9839(a)
contains
no
exhaustion
requirements
silent regarding administrative remedies.
and
is
Therefore, it is
within our sound discretion to hear this case.
Given that none of the theories that defendant relies
on to challenge this Court’s jurisdiction applies here, it
is appropriate for us to reach the merits of the case.
it
is
appropriate
for
us
to
decide
whether
And
Congress
intended a private right of action in 42 USC 9839(a).
Whether a Private Cause of Action Exists
Requires a Determination of Legislative Intent
Congress can create a private right of action in two
ways.
It can expressly provide for the right or it can
imply it.
Cannon v Univ of Chicago, 441 US 677, 717; 99 S
Ct 1946; 60 L Ed 2d 560 (1979).
does
not
intended.
complexity
clearly
The
of
express
growing
federal
Frequently, legislation
whether
volume
legislation
a
of
private
right
was
and
the
need
for
litigation
increase
the
careful scrutiny to ensure what Congress wanted.
Merrill
Lynch, Pierce, Fenner & Smith, Inc v Curran, 456 US 353,
377; 102 S Ct 1825; 72 L Ed 2d 182 (1982).
To assist us in undertaking that scrutiny, the United
States Supreme Court articulated a four-part test thirty
years ago in Cort v Ash, 422 US 66; 95 S Ct 2080; 45 L Ed
2d 26 (1975).
A court makes four inquiries:
(1) whether
the plaintiff is a member of the class for whose benefit
4
the legislative body enacted the statute, (2) whether there
is any indication that the legislative body intended to
create
or
inferring
deny
the
such
a
of
action,
of
right
right
(3)
action
is
consistent
whether
with
the
underlying scheme of the legislation, and (4) whether the
cause of action is one traditionally relegated to state law
so that it would be inappropriate to base the determination
solely on federal law.
is
determining
statute.
the
Id. at 78.
legislative
The key to this inquiry
intent
in
enacting
the
Merrill Lynch, supra at 377-378.
In Touche Ross & Co v Redington,2 the Court opined that
the first three factors of Cort should be given greater
weight than the fourth.
The opinion states:
Indeed, the first three factors discussed in
Cort—the language and focus of the statute, its
legislative history, and its purpose, see 422
U.S., at 78—are ones traditionally relied upon in
determining legislative intent.
[Id. at 575576.]
The language of the statute in question in Touche Ross3
did not explicitly create a private remedy.
legislative
intended
history
one.
The
gave
no
statute
indication
neither
Also, the
that
conferred
Congress
rights
private parties nor proscribed conduct as unlawful.
2
442 US 560; 99 S Ct 2479; 61 L Ed 2d 82 (1979).
3
15 USC 78q(a).
5
on
Touche
Ross, supra at 569.
documents
for
It required that brokers keep certain
government
governmental
rights
of
Because
statute
did
the
inspection
and
inspection.
not
imply
Id.
a
majority
contends
that,
at
private
action, the Court found that none existed.
The
focused
on
569-570.
right
of
Id. at 571.
twenty-two
years
after
Touche Ross, the United States Supreme Court abandoned the
Cort analysis and switched to a completely textual analysis
in Alexander v Sandoval, 532 US 275; 121 S Ct 1511; 149 L
Ed 2d 517 (2001).
I disagree.
In Alexander, the Court
followed the same reasoning as in Touche Ross and focused
on the initial Cort factors.
As in Touche Ross, the Alexander Court stated that, to
determine
legislative
intent,
it
with the language of the statute.
was
important
to
start
Id. at 287-288.
In that
case, it needed to go no further in its inquiry.
Id. at
288.
The reason was that, as in Touche Ross, the statute
under consideration4 indicated that Congress intended not to
create a private cause of action.
Alexander, supra at 288-
289.
That
statute
neither
conferred
rights
on
private
parties nor proscribed conduct as unlawful.
Instead, it
empowered
regulations.
4
governmental
agencies
42 USC 2000d-1.
6
to
enforce
Id.
at
289.
The
Court
concluded
that,
by
expressly
providing one method of enforcement, Congress signaled that
it intended to preclude other methods.5
Id. at 290.
Contrary to the majority’s conclusion, a full reading
of Alexander indicates that the Court did not abandon Cort.
Instead, Alexander stated that the analysis in that case
need not extend beyond the first two Cort factors because
the
statute
indicated
that
private cause of action.
Congress
did
not
intend
a
The Cort factors remain a valid
and important means of discerning legislative intent.
The
Alexander
the
decision
provides
no
basis
to
conclude
contrary.
Specific Analysis of 42 USC 9839
Despite espousing a textualist approach, the majority
never deals with the actual language of 42 USC 9839(a).
Instead,
it
focuses
on
tangentially
5
related
federal
The majority points out that 42 USC 9839(a) contains
language like the statutory language that the Supreme Court
analyzed in Alexander. Ante at 27 n 46. But the majority
again misses the point. Unlike 42 USC 2000d-1, it contains
a directive that does not concern the mere internal
creation of rules.
42 USC 9839(a) contains language that
is absent in 42 USC 2000d-1 (the statutory language
analyzed in Alexander).
42 USC 9839(a) specifically
mentions the “public” and “appropriate community groups
. . . .” It allows the public and these groups to request
public hearings and to seek access to books and records.
42 USC 9839(a).
7
district court cases and the overall purpose of the Head
Start Act.
Let us review the actual language in question.
42 USC
9839(a) provides in part:
Each
Head
Start
agency
shall
observe
standards
of
organization,
management,
and
administration which will assure, so far as
reasonably possible, that all program activities
are conducted in a manner consistent with the
purposes of this subchapter [42 USC 9831 et seq.]
and
the
objective
of
providing
assistance
effectively, efficiently, and free of any taint
of partisan political bias or personal or family
favoritism.
Each such agency shall establish or
adopt rules to carry out this section, which
shall
include
rules
to
assure
full
staff
accountability
in
matters
governed
by
law,
regulations, or agency policy. Each agency shall
also provide for reasonable public access to
information, including public hearings at the
request of appropriate community groups and
reasonable public access to books and records of
the agency or other agencies engaged in program
activities or operations involving the use of
authority or funds for which it is responsible.
Each such agency shall adopt for itself and other
agencies using funds or exercising authority for
which it is responsible, rules designed to . . .
(3) guard against personal or financial conflicts
of interest . . . . [Emphasis added.]
This
maintain
funds.
language
open
indicates
the
accountability
in
intent
the
use
of
of
Congress
Head
to
Start
It explicitly provides a right of public access.
After stating that “[e]ach agency shall also provide for
reasonable
particulars
public
on
access
how
to
to
information,”
meet
this
holding public meetings.
8
it
requirement,
spells
out
including
The statute specifically confers an individual right
on members of the public to conduct inspections of books
and records.
Ross
and
The opposite situation existed in both Touche
Alexander,
where
creating such a right.
the
statutes
lacked
language
They offered neither the general
public nor any private individual access to anything.
oversight
they
called
for
was
by
governmental
The
agencies.
Alexander, supra at 288-289; Touche Ross, supra at 569-570.
The majority simply misses this important distinction.6
It relies on two federal district court cases, Johnson
v Quin Rivers Agency for Community Action, Inc, 128 F Supp
2d 332 (ED Va, 2001), and Hodder v Schoharie Co Child Dev
Council, Inc, 1995 US Dist LEXIS 19049 (ND NY, 1995).
But
Johnson and Hodder do not support the conclusion that no
private cause of action exists and they are inapplicable to
the case at hand.
6
The majority states that it “wholly disagree[s]” with
the conclusion that 42 USC 9839(a) confers an individual
right on a member of the public. It contends that 42 USC
9839(a) merely creates a disclosure requirement.
Ante at
33 n 49.
Again, the majority fails to analyze the actual
language of the statute.
42 USC 9839(a) mandates public
access, such as public hearings, at the request of
“appropriate community groups . . . .”
Only by allowing
enforcement
of
this
public
inspection
and
access
requirement can we effectuate Congress’s specific goal of
maintaining open accountability in the use of public funds.
The majority simply ignores this clear congressional
intent.
9
Neither dealt with 42 USC 9839(a).
claims
of
discrimination
Head Start regulations.
and
Johnson concerned
substandard
enforcement
Johnson, supra at 335.
of
The Head
Start provisions in question were 42 USC 9836a(a)(1) and
(2).
Johnson, supra at 336-337.
Hodder concerned claims of employees terminated from
Head Start agencies.
42 USC 9849(b).
Hodder, supra at *16.
Hodder, supra at *12.
It dealt with
42 USC 9839(a) was
mentioned only in passing.
The only thing Hodder and Johnson have in common with
this case is that both involve provisions of the Head Start
Act.
But the statutory language scrutinized in Hodder and
Johnson makes no mention of public access as 42 USC 9839(a)
does.
Given that Hodder and Johnson do not deal with 42
USC 9839(a), they are of no assistance in our resolution of
this case.
The majority also bases its decision on the general
purpose of the Head Start Act.
It assumes that the only
purpose worth considering is the act’s overarching goal of
providing
services
to
low-income
children
and
their
families.
It ignores the congressional intent specifically
written into 42 USC 9839(a).
42
USC
9839(a)
specifies
Congress’s
goal
of
maintaining open accountability in the use of public funds
and effectuates it by providing a right of public access to
10
books and records.
By ignoring these specific provisions,
the majority has effectively substituted its judgment for
that
of
Congress.
In
reducing
public
oversight,
it
frustrates the paramount goals of the Head Start Act by
facilitating the misuse of federal funds.
Application of the Cort factors to 42 USC 9839(a)
Given
that
the
language
of
the
statute
does
not
contradict the existence of a private cause of action, it
is appropriate to apply all the Cort factors.
The first
question is whether plaintiff is in the class for whose
benefit
Congress
enacted
42
USC
9839(a).
The
statute
indicates that Congress intended to grant access to the
public at large.
Plaintiff is a member of the public.
Therefore, plaintiff is within the appropriate class. Cort,
supra at 79.
The second question, whether there is any indication
that Congress intended to create or to deny a private right
of action, has already been discussed.
The language of 42
USC 9839(a) indicates a specific intent to create such an
action.
There is no legislative history or other material
contradicting this intent.
The third question is whether it is consistent with
the underlying legislative scheme to infer a private right
of action.
Cort, supra at 78.
As the majority states, the
overall purpose of the Head Start Act is to promote school
11
readiness.
goal,
42 USC 9831.
Congress
accountability
9839(a).
As part of its plan to reach this
expressed
in
the
an
use
intent
of
to
public
maintain
funds
in
open
42
USC
In the same section, to effectuate this intent,
Congress provided the public with a right of access to
books
and
records.
implement
this
inferring
a
Inferring
right
right
enforces
of
action
a
right
that
is
of
action
intent.
to
Therefore,
consistent
with
the
legislative scheme.
Finally, there is no indication that this is a cause
of
action
traditionally
relegated
to
defendant makes no such argument.
state
law.
And
To the contrary, an
action pursuant to 42 USC 9839(a) is the only means by
which
plaintiff
could
obtain
the
information
it
seeks.
Therefore, the analysis of this factor, as with the other
Cort factors, points to the need to recognize a private
right of action under 42 USC 9839(a).
Where a Legal Right Exists, so Does a Legal Remedy
“The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of
the laws . . . .”
Marbury v Madison, 5 US (1 Cranch) 137,
163; 2 L Ed 60 (1803).
One of the fundamental tenets of
the American legal system is that, where there is a legal
right, there is also a legal remedy.
Id.
After it is
determined that Congress intended a right of action, courts
12
presume the availability of all appropriate remedies unless
Congress
has
expressly
indicated
otherwise.
Franklin
v
Gwinnett Co Pub Schools, 503 US 60, 66; 112 S Ct 1028; 117
L Ed 2d 208 (1992).
In this case, a private right of action exists under
42 USC 9839(a).
viewing
the
supplies
records
and
argument
Plaintiff sought the appropriate remedy of
furniture.
that
viewing
unreasonable.
This
consistent
with
the
allows
reasonable
for
of
the
bids
submitted
Defendant
this
proposed
language
makes
for
no
information
remedy
of
inspections
is
42
USC
of
books
office
persuasive
would
be
specifically
9839(a),
and
which
records.
Therefore, Congress has not expressly indicated that this
remedy is inappropriate.
And the trial court did not err
in granting it.
I would affirm the decision of the Court of Appeals.
Marilyn Kelly
Michael F. Cavanagh
13
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