# Georgia Association of Retarded Citizens, Cross v. Dr. Charles McDaniel Etc., Cross-Appellees > Court of Appeals for the Eleventh Circuit · December 2, 1983 · 716 F.2d 1565 URL: https://www.frixlaw.com/law-library/cases/9471165 ## Case - **Full name:** GEORGIA ASSOCIATION OF RETARDED CITIZENS, Et Al., Plaintiffs-Appellees, Cross-Appellants, v. Dr. Charles McDANIEL, Etc., Et Al., Defendants-Appellants, Cross-Appellees - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** December 2, 1983 - **Citations:** 716 F.2d 1565 - **Precedential status:** Published - **Opinion:** Dissent by Hill - **Judges:** Hill, Vance, Tuttle - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by United States v. Cassity, 468 U.S. 1212 (1984). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471165 ## How later opinions describe it (automated extraction) - noting the “central role states play in educating their citizens” but observing that “a state’s responsibility for providing education is bounded by certain *185 congressionally developed concerns once the state accepts federal financial assist-anee under the Act” ## Opinion text JAMES C. HILL, Circuit Judge, dissenting. I respectfully dissent from the judgment in this case affirming the district court not because the judgment may not result in a proper and appropriate educational oppor *1582 tunity for the appellee and those in the class, but because, in my view, neither the district court nor this court is constitutionally entitled to, or under a duty to, decide the issue. I have carefully studied the provisions of the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. While it contains a number of provisions, nowhere does it amount to legislation by the Congress on the issue seen as confronting the nation. It describes the problem which might cryptically be stated as the unsatisfactory educational opportunities found to be available to handicapped children. In a number of provisions, it announces that these handicapped children should have an “appropriate” education. It appears to me that the legislative branch, acknowledging the existence of a serious problem, has acknowledged that the solution to it should be the “appropriate” solution. This is not legislation; it is not even news! It goes without saying that when the Congress is confronted with a problem facing the country and feels that governmental intervention is necessary, the law to be passed should be an appropriate law. In the Handicapped Act, a structure is created looking towards the determination, by some institution (not the Congress), of what an appropriate solution to the problem might be. Thus, the states which care to avail themselves of the financial resources provided by the law are required to establish plans that assure all handicapped children a “free appropriate public education.” 20 U.S.C. § 1412 . These plans are to be submitted to the then Commissioner of Education, now the Secretary of Education, for approval before any funds are to be made available to the state. 20 U.S.C. § 1413 . If the Commissioner of Education should approve a plan providing for educational opportunities for the handicapped less than what might be found appropriate, no provision is made for an appeal. If the Commissioner refuses to approve a plan contended by the state to provide for appropriate educational opportunities, the state can appeal to the circuit court of appeals. 20 U.S.C. § 1416 (b)(1). Whether or not any of these procedures created by the congressional delegation to the agencies and the states results in an appropriate education for a handicapped child cannot be determined by reference to any of the provisions of the law passed by the Congress. Indeed, it cannot be determined by reference to any of the regulations established by the Commissioner in exercising the Commissioner’s delegated authority. When all is said and done, if a citizen be dissatisfied with the education to be offered to a handicapped child, the entire matter is to be decided, de novo, by a United States district judge. 20 U.S.C. § 1415 (e). What the district judge is required to do, if the Congress may delegate this power and responsibility to the district judge, is to determine, on a case-by-case basis, what is the “appropriate” answer to the problem seen by the Congress to confront the country. As I view the Handicapped Act and the regulations, it appears that no branch of the politically responsive branches of government has yet been willing to provide the appropriate answer to the compelling problem. Although there are many provisions in the law, the Congress and the Department of Education take the position that the ultimate making of the law as to any particular state shall be that which a district judge deems to be an appropriate law. Nevertheless, the legislative branch cannot delegate or confer legislative power on the courts or impose legislative duties upon them because such duties are not judicial in nature. See, e.g., National Mutual Insurance Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582, 590-91 , 69 S.Ct. 1173, 1177 , 93 L.Ed. 1556 (1949); Kilbourn v. Thompson, 103 U.S. 168, 190-91 , 26 L.Ed. 377 (1880). The separation of powers created by our finely-tuned constitutional system of government is offended when the legislative branch undertakes to abdicate its sometimes most difficult tasks to the judicial branch. If that willingness on the part of the legislative branch to abdicate is met by a willingness on the part of the judicial *1583 branch to accept inappropriate power and responsibility, the system of government in this country is, to that extent, eroded. I am aware that in Board of Education v. Rowley, 458 U.S. 173 , 102 S.Ct. 3034 , 73 L.Ed.2d 690 (1982), the Court determined what is generally meant by the Handicapped Act’s requirement of a “free appropriate public education.” My review of the case and the briefs, however, indicates that the constitutionality of the Act’s delegation of legislative authority to district courts was not raised by the parties or considered by the Court. Here also, no party litigant attacks the constitutionality or advisability of this attempt on the part of the Congress to pass over to the judiciary the difficult task of creating an appropriate law in this area. If it were attacked by the appellee and the class, it would jeopardize the funds to be used for the education of those so situated. If it were attacked by the local board of education or the State, the funds to administer the program would be in jeopardy. The Department of Education has represented to this court that it is quite comfortable with the law being made by the judiciary. Thus, all of the parties are satisfied that the legislative function in this difficult area be handled by the one branch of government not responsive to the electorate — the judiciary. Unless those working in the judicial branch shall be, sua sponte, sensitive to this breach of the separation of powers, legislative activity will be exercised by the branch least appropriate to its exercise, not by virtue of any usurpation or “power grab” on the part of the courts, but by virtue of a willing abdication of this “hot potato” by the Congress and the executive. It has long been recognized that a federal court must on its own motion ascertain its jurisdiction and I apprehend that the same rule applies to the court’s ascertainment of its power to act under Article III, Section 2 of the Constitution. That Article III judicial power extends to all cases arising under the laws of the United States but does not extend to the resolution of debates as to what the law of the United States ought to be — even though the legislative branch, charged with that responsibility and given that power to make the law, might invite the court so to act. Inasmuch as I feel this delegation to be unconstitutional, I should, on that basis, vacate the judgment of the district court and remand the case to the district court for dismissal, the question presented being within the domain of the Congress as established by Article I of the Constitution and beyond the jurisdiction established by the Constitution for Article III courts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471165. Public record. Not legal advice.