Appellants Brief — Pennhurst State School and Hospital v. Halderman

3 EILED

Nos. 79-1404, 79-1408, 79-1414, 79-1415, and 7

RY 1920

Iu the Supreme Court of the Bnited ABP Bar we ees

OcToBER TERM, 1979 Medea ee Tye tne

PENNHURST STATE SCHOOL AND HOSPITAL, ET AL.,

PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

MAYOR OF CITY OF PHILADELPHIA, ET AL., PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, ET AL.,

PETITIONERS

Vv.

PENNHURST STATE SCHOOL AND HOSPITAL, ET AL.

COMMISSIONERS AND MENTAL HEALTH/MENTAL RETARDATION

ADMINISTRATORS FOR BUCKS COUNTY, ET AL., PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

PENNHURST PARENTS-STAFF ASSOCIATION, PETITIONER

Vv.

TERRI LEE HALDERMAN, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

Drew S. Days, III

Assistant Attorney General

BRIAN K. LANDSBERG

FRANK D. ALLEN, JR.

Attorneys

Department of Justice

Washington, D.C. 20580

INDEX

Page

OI las eal sae ealsiedansinied =

I ina aa ait ac cian scankenitied 3

Questions presented ...................:...c--ceeseeeeeeeeees 3

I ina hi atralaactnassesoiaiachassbeselenedhs 4

A. Procedural history ...................-....----+- 4

Ne SINE sath coh asl ptaerenavsaddnnnconcoosnente 6

PI ancccaiie vane eciaeicdameneunentinneinbsenniictidanes 9

ENCES eke a te Sea RRL ey re ae NO 20

CITATIONS

Cases:

Allen Calculators, Inc. v. National Cash

Register Co., 322 U.S. 187 ...................- 16

Bell v. Hood, 327 U.S. 678 .........222..2..---000- 19

Cannon v. University of Chicago, 441 U.S.

I ha alae a ad chiar ads ince deatdceaaien leopueee 15

Cort ¥. AOR, 422 Unt. GG oo ncccsccccccocccccoveseosss 15

County of Allegheny v. Commw., Dept. of

Public Welfare, 381 A.2d 1014 ~.......... 9

Cruz v. Hauck, 515 F.2d 322, cert. denied,

Pe EE oats aca oeactaanoninanans 18-19

Davis v. Watkins, 384 F.Supp. 1196 ......... 19

Estate of Spiegel v. Commissioner, 335

iS Ge [RRA aaiie re SRE R Phra oA no 12

Eubanks v. Clarke, 434 F.Supp. 1022 ...... 9

Gary W. v. Louisiana, 601 F.2d 240 ........ 18

Hart v. Community School Bd. of Brook-

lyn, N.Y., School Dist. #21, 3838

Ps I © oxenresan tie tadornmnsenasanetuebivekGrns 19

Il

Cases—Continued Page

Hoolick v. Retreat State Hospital, 354

A.2d 609, aff’d, 382 A.2d 739 -............... 10

Huddleston v. Dwyer, 322 U.S. 282 .......... 12

Joyce Z, In re, 4 Pa. D. & C. 3d 596 -....... 9

Milliken v. Bradley, 433 U.S. 267 -........... 19

Morgan v. Kerrigan, 5380 F.2d 401, cert.

qouneg,, 406 U.S. O68 nc. 18

Nuesse v. Camp, 385 F.2d 694 .................. 17

Pennsylvania Ass’n for Retarded Children

v. Pennsylvania, 335 F.Supp. 1257 ........ 19

Rizzo v. Goode, 423 U.S.. 362 ..................-- 19

SEC v. United States Realty & Improve-

mont Co. SEO UB. BBO seins 17

Touche Ross & Co. v. Redington, 442 U.S.

APTI scinsionivtsoieasstinnncncagossaeucaliacoeeetiicean aaa 15

Transamerica Mortgage Advisors, Ine. v.

Lewis, No. 77-1645 (Nov. 13, 1979) _..... 15

United States v. City of Philadelphia, 482

F, Supp. 1248 and 1274, appeal pend-

ing, No. 80-1348 (8d Cir.) —.......0........ 17

United States v. Elrod, No. 76-C-4768

(N.D. Ill. May 16, 1978), appeal pend-

ing, No. 79-1394 (7th Cir.) .................. 17

United States v. Mattson, 600 F.2d 1295.. 17

United States v. Solomon, 563 F.2d 1121.. 17

Statutes and rules:

Developmentally Disabled Assistance and

Bill of Rights Act, 42 U.S.C. 6001 et

NT EN en oe MNT AN SN meio MONO AOC Niet.” 3,12

7 Ue. Gee) 2 ok 13

42 U.S.C. 6002-6081 .......................... 5

Oe i GOD. aiince naan 14, 15

Ill

Statutes and rules—Continued Page

I Es TEED. cescssceaieceeccieensavienion 13

I Is OD vee sesicisncncsnnaisunda daletanin 13

Oe eee PRD ciiciccncndscenclscesisveniens 13,17

Be Na IEE cscircy/ssiopnakashanasomerldpantied 16

Ae Pls MI osnecctvcgectnssccssiessbennstionins 16

IRE NE cise ksh wsracounsnseriartain 16

Rehabilitation Act of 1978, Section 504,

BE I edie credo tea scileclaraverics 5

Social Security Act, Title XIX, 42 U.S.C.

I nant taeda 16

Pub. L. No. 94-108, Section 1, 89 Stat.

____ EEREN Ce CRSA Oe Rn IU a RO 15

Pub. L. No. 95-602, Section 507, 92 Stat.

i a SE AARON IO Se TSC LADEN eT NSE 14

Mental Health and Mental Retardation

Act of 1966, Pa. Stat. Ann., tit. 50,

§ 4201 et seg. (Purdon 1969) _............. 5, 9

ME evil hanacipictnceaaetnsees sxebiagasadks 7,10

Fed. R. Civ. P.:

nn el 3, 15, 16, 17

DE Neca dcr contin. ana 18

i tee Ws RCE P OOD soci 12

Miscellaneous:

126 Cong. Rec. S4628 (daily ed. May 6,

FERS ernecO IEE RHC ORer Meron araER 17

126 Cong. Rec. H3500 (daily ed. May 12,

RRS ah cE NARI AVE IN? elton aC Ne eee ARNE 17

H.R. Conf. Rep. No. 94-473, 94th Cong.,

Be NS IID ifsc sccm vecencdcnnecetesancecations 14

H.R. Rep. No. 95-1188, 95th Cong., 2d

Nt ccs coansensisdenpsicieannanai tienes 13

3B Moore’s Federal Practice (2d ed.

SITE staiccheiaieasitselinddaroshsiinnnesabekencancbapnenihigins 17

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1404

PENNHURST STATE SCHOOL AND HOSPITAL, ET AL.,

PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

No. 79-1408

MAYOR OF CITY OF PHILADELPHIA, ET AL.,

7 PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

No. 79-1414

PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS,

ET AL., PETITIONERS

UV.

PENNHURST STATE SCHOOL AND HOSPITAL, ET AL.

(1)

2

No. 79-1415

COMMISSIONERS AND MENTAL HEALTH/MENTAL

RETARDATION ADMINISTRATORS FOR BUCKS COUNTY,

ET AL., PETITIONERS

Vv.

TERRI LEE HALDERMAN, ET AL.

No. 79-1489

PENNHURST PARENTS-STAFF ASSOCIATION,

PETITIONER

Vv.

TERRI LEE HALDERMAN, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

92a-196a)' is reported at 612 F. 2d 84; the opinion

1 “Pet. App.” refers to the separately bound Joint Appendix

in No. 79-1404.

3

of the district court (Pet. App. 6a-75a) is reported

at 446 F. Supp. 1295.

JURISDICTION

The judgment of the court of appeals was entered

on December 13, 1979. The petitions in Nos. 79-

1404, 79-1414, 79-1408 and 79-1415 were filed on

March 12, 1980, and the petition in No. 79-1489

was filed on March 20, 1980. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether Pennsylvania law provides mentally

retarded persons in Pennsylvania a right to care and

habilitation appropriate to their individual needs, and

whether the right is judicially enforceable against

local, as well as state, officials.

2. Whether the Developmentally Disabled Assis-

tance and Bill of Rights Act, 42 U.S.C. 6001 et seq.,

provides mentally retarded persons in the custody of

a state receiving federal funds under the Act a judi-

cially enforceable right to receive care and habilita-

tion appropriate to their needs in the setting that

least restricts their personal liberty.

3. Whether the district court abused its discretion

under Rule 24(b), Fed. R. Civ. P., by allowing the

United States to intervene.

4. Whether the plaintiff class should have been

decertified.

4

5. Whether the remedy violates the principles of

federalism and exceeds the authority of federal courts.

*

STATEMENT

A. Procedural History

This case began with the filing of a class action

in the United States District Court for the Eastern

District of Pennsylvania by residents of the Penn-

hurst State School and Hospital, an institution in

Pennsylvania for residential care and habilitation of

mentally retarded persons.* The certified plaintiff

class is all persons “who * * * have been or may be-

come residents of Pennhurst’”’ (Pet. App. 14a). The

Pennsylvania Association for Retarded Citizens, sev-

eral additional individual mentally retarded plaintiffs,

and the United States were permitted to intervene as

plaintiffs. Defendants are various state and local

officials having the responsibility for the operation of

Pennhurst and for placing mentally retarded persons

there as residents. After a lengthy trial, the district

court found that conditions at Pennhurst were so

inadequate and debilitating that they abridged plain-

2 The district court explained that: “ ‘[h]abilitation’ is the

term of art used to refer to that education, training and care

required by retarded individuals to reach their maximum de-

velopment” (Pet. App. 10a).

3 Following trial, and after notice of appeal had been filed,

petitioners in No. 79-1489 sought to intervene in the district

court and intervention was denied. The denial was affirmed

by the court of appeals (79-1489 Pet. App. 213a-217a), but

that court subsequently allowed intervention for the purpose

of seeking certiorari (79-1489 Pet. 6 n.9). :

5

tiffs’ rights under the Due Process Clause, the Equal

Protection Clause, Section 504 of the Rehabilitation

Act of 1973 (29 U.S.C. 794) and Pennsylvania law

(Pa. Stat. Ann. tit. 50, § 4201 et seg. (Purdon 1969) ).

The district court ordered that certain interim steps

be taken to improve conditions at Pennhurst.* It also

ordered defendants to make plans to close Pennhurst,

and to remove its residents to more appropriate and

less restrictive community living arrangements, in

accordance with the deinstitutionalization policy that

has been adopted in Pennsylvania.

On appeal, the en banc court of appeals held that

by subjecting plaintiffs to the conditions at Penn-

hurst, defendants were violating both Pennsylvania

statutes (Pa. Stat. Ann. tit. 50, § 4201 et seg. (Pur-

don 1969)) and the Developmentally Disabled As-

sistance and Bill of Rights Act (42 U.S.C. 6002-

6081).° However, the court of appeals reversed the

district court’s order requiring the eventual closing

of Pennhurst, and instead directed the district court,

or the special master appointed by the court, to super-

vise the defendants’ determinations, on a case-by-

case basis, of the proper placement of Pennhurst

residents (Pet. App. 150a-15la). The court said

(Pet. App. 158a-160a) :

4 The district court first attempted, without success, to ob-

tain from the defendants proposals for appropriate relief to

correct the harmful conditions found to exist (Pet. App. 77a-

79a).

5 The court of appeals accordingly did not decide whether

petitioners’ conduct violated the Constitution or Section 504

of the Rehabilitation Act of 1973 (Pet. App. 13la & n.28,

141a).

6

Of course, deinstitutionalization is the favored

approach to habilitation * * *. Thus, on remand,

the court or the Master should engage a pre-

sumption in favor of placing individuals in [com-

munity living arrangements]. But the special

needs and desires of individual patients must

not be neglected in the process.

* * * * *

[S]tate and federal laws plainly require that

if Pennhurst is to remain open for at least some

patients, it must be dramatically improved so as

to provide adequate habilitation. Neither should

our willingness to permit retention of Pennhurst

as an institution available for those who cannot

be treated in any less restrictive environment be

construed as an invitation to the appellants to

desist from opening up alternative community

facilities.

Three judges dissented (Pet. App. 162a). They

would have found that conditions at Pennhurst vio-

lated plaintiffs’ constitutional and statutory rights,

but would have limited relief to correcting these con-

ditions.

B. The Findings

The Pennhurst State School and Hospital, which

is owned and operated by the State of Pennsylvania,

has been overcrowded and understaffed since its

founding in 1908. At the time of trial, the resident

population was 1230 mentally retarded persons, al-

though in the early 1960’s there were 4000 resi-

dents (Pet. App. 19a). Residents sleep in large

overcrowded wards and spend their days in large day

7

rooms; their schedules are determined by the needs

of the institution (Pet. App. 21a).

All parties agreed at trial that Pennhurst “as an

institution is inappropriate and inadequate for the

habilitation of the retarded” (Pet. App. 23a).° The

district court found the “average resident receives

only 114 hours of programming per weekday and no

programming on weekends” (id. at 24a); because of

staff shortages, residents are not placed in special pro-

grams to which they are referred (id. at 25a). For.

example, as of April 1977, 511 residents were on the

waiting list for occupational therapy; 106 residents

were on the waiting list for speech therapy; only 143

of the three to four hundred residents who needed

physical therapy to prevent physical deterioration

were receiving it. Moreover, 75 to 100 residents

lacked specially adapted wheelchairs that they needed;

only 51 of 300 residents who needed hearing aids had

been provided them (id. at 25a-26a).

Proper habilitation cannot be provided to retarded

persons unless those responsible for providing such

programs are aware of individual needs. Yet, the

district court found that the relevant patient evalua-

tions at Pennhurst did not meet professional stan-

dards (Pet. App. 27a).

6 Pennsylvania’s purpose in maintaining mentally retarded

persons in institutions is “[t]o assure * * * the availability

and equitable provision of adequate * * * mental retardation

services for all persons who need them * * *.” Pa. Stat.

Ann. tit. 50, § 4201(1) (Purdon 1969).

8

Although a committee at Pennhurst recommended

against isolating residents except in medical emer:

gencies and specifically recommended against the use

of isolation as punishment, isolation was still used,

simply because there was insufficient staff to provide

the attention to residents that would make isolation

unnecessary. Physical restraints were used for the

same reason and have been physically harmful, in-

cluding causing one death by strangulation (Pet. App.

31a-32a).

Psychotraupic drugs were used to control residents

rather than to treat them, and their use was inade-

quately monitored. The administration of such

drugs has had debilitating or hazardous side effects

and has impeded, rather than enhanced, habilitation

of residents (Pet. App. 33a).

The physical environment at Pennhurst was _ haz-

ardous and unsanitary. Pinworm and infectious dis-

eases were common. The environment not only was

not conducive to learning new skills, it contributed

to losing skills already learned. Injury of residents

by other residents and through self-abuse was com-

mon: in January 1977, there were 833 minor and 25

major injuries reported (Pet. App. 34a-35a).

Pennsylvania accepts the “normalization” theory

that a retarded person will develop and learn more

if placed in an environment that is as close to a

normal one as is possible. Toward that end, the state

has established ‘community living arrangements”

in the five-county area from which the Pennhurst

population is drawn. However, there are insufficient

9

living units, vocational opportunities, and day care

facilities in the area to provide placement for all

Pennhurst residents; from 1972 until trial, only 186

Pennhurst residents were transferred into community

living arrangements (Pet. App. 43a)."

These findings were not disputed on appeal; they

were affirmed by the court of appeals (Pet. App.

105a-106a).

ARGUMENT

1. The court of appeals held that Pennsylvania

law requires petitioners to furnish mentally retarded

persons adequate treatment and habilitation (Pet.

App. 125a-127a). Although Pennsylvania’s Mental

Health and Mental Retardation Act of 1966, Pa. Stat.

Ann. tit. 50, § 4201 et seg. (Purdon 1969), is uncon-

strued by the highest state court, decisions of lower

state and federal courts fully support the construction

given it by the court of appeals. E.g., In re Joyce Z,

4 Pa. D. & C. 8d 596 (C. P., Allegheny Co. 1975) ;

County of Allegheny v. Commw., Dept. of Pub. Wel-

fare, 381 A.2d 1014, 1016 (Pa. Commw. Ct. 1978) ;

Eubanks v. Clarke, 434 F. Supp. 1022, 1027 (E.D. Pa.

1977). Thus, state law requires the state and county

petitioners to furnish ‘a comprehensive program for

7 Nevertheless, the state petitioners “agreed that the re-

tarded should be removed from Pennhurst and readily ad-

mitted that the only reason that the litigation was necessary

was because they wished to accomplish the closing of Penn-

hurst as a residence for the retarded, pursuant to their own

schedule which was vague and indefinite’ (Pet. App. 78a,

42a).

10

the care, treatment and rehabilitation of mentally dis-

abled and mentally retarded persons.” Hoolick v.

Retreat State Hospital, 354 A.2d 609, 611 (Pa.

Commw. Ct. 1976), aff’d, 382 A.2d 739 (Sup. Ct.

1978). It is the duty of the state petitioners under

Pa. Stat. Ann. tit. 50, § 4201(1) (Purdon 1969):

To assure within the State the availability

and equitable provision of adequate mental re-

tardation services for all persons who need

ne

As the findings made clear, the confinement of

mentally retarded persons in Pennhurst is neither

“adequate” nor “equitable”: the district court found,

and the court of appeals affirmed, that many of Penn-

hurt’s residents not only receive inadequate services,

but are confined in an environment that produces

regression in skills and physical and mental harm.

The petitioning city and county officials claim that

state law places no responsibility on them for the

wrong done to Pennhurst residents (79-1408 Pet.

9-10; 79-1415 Pet. 15). But, as the court of appeals

observed (Pet. App. 130a):

the Counties have joined inextricably in the

‘ states’ provision—or lack of provision—of treat-

ment * * * the Counties arrange for admission

to Pennhurst through their operation of Base

Service Units. Often, the district court found,

the County Base Service Units fail to investigate

alternatives to institutional placements, thereby

consigning the mentally retarded to inadequate

living conditions. * * * Having thus participated

for so long in the institutional practices at Penn-

11

hurst, the Counties cannot at this late date

escape—by pointing the finger of responsibility

elsewhere—the statutory duty to provide ade-

quate habilitation.

The relief ordered by the court of appeals (Pet.

App. 155a-160a) is entirely consistent with the statu-

tory responsibilities of petitioners. That relief is

premised on three principles: First, the deinstitution-

alization process established by the Pennsylvania

legislature (see Pet. App. 43a-44a) should continue.

Second, because “[t]he state statute, like the federal

statute, was focused on individual needs” (Pet. App.

157a), the court of appeals reversed the district

court’s requirement that Pennhurst be eliminated as

an institution caring for mentally retarded persons;

individuals who will benefit from institutionalization

and would be harmed by a less restrictive alternative

facility may still be placed in and treated at Penn-

hurst (id. at 158a-159a).° Third, in whatever facility

individuals are placed, the state and local petitioners

must provide them with adequate habilitative services

as required by state law; this means that the harmful

conditions found to exist at Pennhurst must be elimi-

nated (id. at 160a-161a).

Without furnishing any Pennsylvania authority

suggesting that the courts’ treatment of respondents’

state law claim is “in conflict with applicable state

8 This modification of the relief ordered by the district

court satisfies the intervening petitioner’s concern (79-1489

Pet. 9, 16 n.18, 18) that severely mentally retarded persons

should not be thrust into settings to which they cannot adjust.

12

* * * law” (Rule 19(1)(b) of the Rules of this

Court), petitioners ask this Court to reverse purely

Pennsylvania law decisions of two federal courts sit-

ting in Pennsylvania. Cf. Huddleston v. Dwyer, 322

U.S. 232, 237 (1944); Estate of Spiegel v. Commis-

sioner, 335 U.S. 701, 707-708 (1949). Nor can this

Court overlook the state law issue if it chooses to re-

view this case since, as the analysis above shows, the

relief that the courts below granted is based on their

acceptance of the state, as well as the federal claim.®°

2. In any event, the court of appeals’ application

of the Developmentally Disabled Assistance and Bill

of Rights Act, 42 U.S.C. 6001 et seqg., the first appel-

late decision to apply this statute, was correct. The

Act is the culmination of congressional actions taken

over a number of years for the purpose of improving

the care and training of developmentally disabled

® Petitioners argue that the court of appeals’ requirement

that the district court “engage in a presumption that indi-

viduals should be placed in [community living arrangements]”

(Pet. App. 159a) is derived solely from the Developmentally

Disabled Assistance and Bill of Rights Act. But the court

of appeals explained (Pet. App. 157a) that the intent of the

Pennsylvania law is “to make it possible for every mentally

disabled person to receive the kind of treatment he needs,

when and where he needs it.”” Both state and federal law, the

court held, make it “fitting that the Commonwealth be re-

quired to undertake a case-by-case investigation into how

each person’s rights may best be facilitated” (ibid.). In this

context, the direction to “engage in a presumption” simply

requires a method of proceeding with individual determi-

nations that is consistent with Pennsylvania’s acceptance of

the policy of normalization (see supra, pages 8-9).

13

persons.’ See H.R. Rep. No. 95-1188, 95th Cong., 2d

Sess. 3-7 (1978). The 1975 amendments, in addition

to providing federal funds for centralized planning

and coordination of the various services provided by

a state to developmentally disabled persons, create

rights enforceable in federal courts: 42 U.S.C. 6010

(1) and (2) announce the right of the developmen-

tally disabled ‘to appropriate treatment, services,

and habilitation for such disabilities’ and to have

“treatment, services, and habilitation * * * designed

to maximize the developmental potential of the per-

son * * * in the setting that is least restrictive of the

person’s personal liberty.”

The legislative history cited by the court of appeals

(Pet. App. 132a-135a) establishes that the Act ex-

presses a preference for deinstitutionalization of

mentally retarded persons. Institutionalization is al-

lowed only if it provides “treatment, services and

habilitation which is appropriate to the needs of such

persons” and meets the minimum standards specified

in 42 U.S.C. 6010(3). Thus, the court of appeals

followed the congressional purpose and intent by re-

quiring that only those persons who need institutional-

ization should be placed at Pennhurst and that the

offending conditions there should be eliminated."

‘0 Mental retardation is a developmental disability within

the contemplation of the Act (42 U.S.C. 6001(7)).

'! The petition of the county officials suggests that the deci-

sion of the court of appeals “establishes a right in 6.75 million

retarded citizens [throughout the United States] to receive

habilitative services in the least restrictive setting.” 79-1415

14

The rights secured to mentally retarded persons by

Section 6010 are judicially enforceable through civil

actions such as this. This Section was the product of

a conference of the two Houses of Congress, and in

the conference report (H.R. Conf. Rep. No. 94-478,

94th Cong., 1st Sess. 42 (1975)) the section was de-

scribed as being included “in recognition by the con-

ferees that the developmentally disabled, particularly

those who have the misfortune to require institutional-

ization, have a right to receive appropriate treatment

for the conditions for which they are institutionalized,

and that this right should be protected and assured

by the Congress and the courts.”

In 1978, 42 U.S.C. 6010 was amended by Pub. L.

No. 95-602, Section 507, 92 Stat. 3007, to add:

The rights of persons with developmental dis-

abilities described in findings made in this sec-

tion are in addition to any constitutional or other

rights otherwise afforded to all persons.

Pet. 8 n.5. But the opinion below adjudicates only the rights

of the class, consisting of “current residents of [Pennhurt,

and] all mentally retarded residents of the five counties of

southeastern Pennsylvania who might in the future be placed

in Pennhurst” (Pet. App. 96a). The court accordingly focused

on the rights of those institutionalized at Pennhurst, and

concluded that when the state accepts the responsibility for

the care of the mentally disabled and accepts federal funding

under the Act to assist in performing that responsibility, it

must provide that care in a manner consistent with the Act.

The court did not consider, much less adjudicate, the quite

different question whether the state must provide for the

care of all its mentaliy disabled citizens.

15

This addition dispels any argument that the rights

described in Section 6010 are simply declarative of

rights granted elsewhere in the Constitution or stat-

utes. It also fully answers petitioners’ arguments

that the Act is no more than a funding statute. Con-

gress also intended in the Act to create a private

cause of action for the benefit of the developmentally

disabled.’* The court of appeals was accordingly cor-

rect in concluding (Pet. App. 115a-117a) that this

statute satisfies this Court’s criteria for the implica-

tion of a private cause of action. See Cort v. Ash,

422 U.S. 66, 78 (1975); ef. Cannon v. University of

Chicago, 441 U.S. 677 (1979); Touche Ross & Co. v.

Redington, 442 U.S. 560 (1979); Transamerica

Mortgage Advisors, Inc. v. Lewis, No. 77-1645 (Nov.

13, 1979).

3. The district court allowed the United States to

intervene in this action under Rule 24, Fed. R. Civ.

P., presumably under part (b), governing permissive

intervention. The court of appeals concluded that

“Tejlearly, * * * the district court did not abuse its

discretion in permitting [that] intervention” (Pet.

App. 103a). There is no need for further review of

that question by this Court; this Court’s resolution of

that question would affect neither the findings of

statutory violation nor the relief ordered by the court

below.

12 This dual intent is emphasized in the short title of the

Act. Had Congress intended to enact only a funding statute,

it would scarcely have called it the “Developmentally Disabled

Assistance and Bill of Rights Act.’”’ Pub. L. No. 94-103, Sec-

tion 1, 89 Stat. 486.

16

There was, in any event, no “clear abuse” of the

district court’s discretion warranting the reversal of

its decision to permit intervention. See Allen Calcu-

lators, Inc. v. National Cash Register Co., 322 U.S.

137, 142 (1944). The United States provides a large

portion of the funds for the operation of Pennhurst

through the Social Security Act, Title XIX, 42 U.S.C.

1396d et seqg., even though Pennhurst has never fully

met standards set by federal regulations for receipt

of those funds (Pet. App. 19a n.14). While at the

time of intervention the suit was cast in constitu-

tional terms, it was unmistakably directed toward

the conditions at Pennhurst (Pet. App. 47a). As

such, it raised issues affecting the interests of the

United States reflected in Social Security Act fund-

ing and the related regulations. Following the United

States’ intervention, the suit quickly became one

where the principal claims rest upon federal statutes

that impose substantial responsibilities on the Depart-

ment of Health and Human Services. See, e.g.,

42 U.S.C. 6062, 6063, 6065. Rule 24(b) provides:

When a party to an action relies for ground of

claim or defense upon any statute or executive

order administered by a federal or state govern-

mental officer or agency * * * the officer or

agency upon timely application may be permitted

to intervene in the action.

Thus, the rule expressly permits government inter-

vention when a claim arises such as the one decided

by the court of appeals.*

18 Rule 24(b) is designed to allow trial courts to consider

governmental intervention “with a fresh and more hospitable

17

Despite petitioners’ claims (79-1404 Pet. 18-19)

there is no conflict between the decision below and

United States v. Solomon, 563 F.2d 1121 (4th Cir.

1977), and United States v. Mattson, 600 F.2d 1295

(9th Cir. 1979). The United States initiated those

cases based on an implied right of action to enforce

constitutional rights of institutionalized persons. Cf.

United States v. City of Philadelphia, 482 F. Supp.

1248 and 1274 (E.D. Pa. 1979), appeal pending, No.

80-1348 (3d Cir.); United States v. Elrod, No. 76-

C-4768 (N.D. Ill. May 16, 1978), appeal pending, No.

79-1394 (7th Cir.). The holding that there is no such

implied right to initiate suit does not apply to inter-

vention explicitly allowed by Rule 24(b).* Moreover,

Solomon, supra, 563 F.2d at 1125, 1129 (concurring

opinion) and Mattson, supra, 600 F.2d at 1299 n.6,

both recognize the authority of the United States to

sue to enforce conditions of federal grants.”

approach,” Nwesse v. Camp, 385 F. 2d 694, 705 (D.C. Cir.

1967), even though a government “claim or defense” in the

usual sense may not be present. See SEC v. United States

Realty & Improvement Co., 310 U.S. 434, 459 (1940); 3B

Moore’s Federal Practice {| 24.10[2] (2d ed. 1980).

14 Tn any event, Congress has enacted H.R. 10 (126 Cong.

Rec. S4628 (daily ed. May 6, 1980), 126 Cong. Rec. H3500

(daily ed. May 12, 1980) ) which, if signed by the President,

will effectively overrule Solomon and Mattson by giving the

Attorney General explicit authority to sue to protect the

constitutional rights of institutionalized persons.

15 Under the Developmentally Disabled Assistance and Bill

of Rights Act, “‘[t]he Federal Government * * * [has] an obli-

gation to assure that public funds are not provided to any

institutional * * * program” that does not comply with the

Act. 42 U.S.C. 6010(3).

18

4. Petitioner in No. 79-1489 urges this Court to

grant certiorari to consider whether the courts below

properly refused to divide the class into subclasses,

i.e., those who “believed that the closing of Pennhurst

would cause considerable harm” (79-1489 Pet. 18)

and those who seek the removal of all residents from

Pennhurst. However, whether or not there should

have been such a division is now irrelevant. The

court of appeals ruled that the district court had

incorrectly required the closing of Pennhurst, the

only issue on which the opinion of the class is alleged

to have been divided; the court of appeals did require

improvement of living conditions there for those who

remain, or who may be placed there in the future,

“an objective with which no resident of Pennhurst

could disagree” (ibid.). To implement the court of

appeals’ order, what remains is the proper assign-

ment of individual class members either to com-

munity placement or to Pennhurst. This, however,

requires a determination of the “special needs and

desires of individual patients” (Pet. App. 159a)—

not a class question at all.

5. Petitioners in Nos. 79-1404, 79-1408 and 79-

1415 challenge the propriety of the relief granted as

inconsistent with principles of federalism.’* None of

16 In No. 79-1404, it is urged that the use of a master violates

Rule 53, Fed. R. Civ. P. However, it is common and entirely

proper for courts to employ masters to assist them in devising

the specific and necessary measures to effect a complex rem-

edy. E.g., Gary W. v. Louisiana, 601 F.2d 240, 244-246 (5th

Cir. 1979) ; Morgan V. Kerrigan, 530 F.2d 401, 427 (1st Cir.),

cert. denied, 426 U.S. 9385 (1976); Cruz v. Hauck, 515 F.2d

19

these contentions merit review here. If, as the court

of appeals held, petitioners have violated rights se-

cured to plaintiffs by state and federal law, it is the

duty of federal courts “to adjust their remedies so

as to grant the necessary relief.” Bell v. Hood, 327

U.S. 678, 684 (1946). While considerations of fed-

eralism may militate against permitting certain civil

actions to lie, e.g., Rizzo v. Goode, 423 U.S. 362

(1976), it has never been thought that those princi-

ples preclude an equitable remedy necessary to bring

about the realization of rights found to exist and to

have been violated. Milliken v. Bradley, 433 U.S.

267, 281-282, 291 (1977).”

322, 328-331 (5th Cir. 1975), cert. denied, 424 U.S. 917

(1976); Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio

1974) ; Pennsylvania Ass’n for Retarded Children v. Penn-

sylvania, 334 F. Supp. 1257 (E.D. Pa. 1971); Hart v. Com-

munity School Bd. of Brooklyn, N.Y., School Dist. +21,

383 F. Supp. 699, 766-767 (E.D. N.Y. 1974).

17 Moreover, the district court’s order, as affirmed by the

court of appeals, directs the petitioners themselves to develop

the individualized program plans for the members of the class,

and to make and monitor suitable living arrangements for

each class member (Pet. App. 79a-80a, 151a). The master’s

responsibility is to assure that these plans and arrangements

are consistent with the court’s orders and are implemented

(Pet. App. 8la-82a). Thus, contrary to petitioners’ claims

(79-1404 Pet. 16-17; 79-1408 Pet. 11-12; 79-1415 Pet. 16-17;

79-1489 Pet. 7-9), the court’s order does not deprive petition-

ers of their responsibility for supervising the care and treat-

ment of the mentally disabled; it simply assures that the re-

sponsibility will be exercised in accordance with the govern-

ing statutes.

20

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WaDE H. McCREE, JR.

Solicitor General

DREW §&. Days, III

Assistant Attorney General

BRIAN K. LANDSBERG

FRANK D. ALLEN, JR.

Attorneys

May 1980

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