Petition — PENNHURST PARENTS-STAFF ASSOCIATION v. TERRI LEE HALDERMAN (Nos. 79-1489, 79-1404, 80-738)

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No. 79-1404

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

PENNHURST PARENTS-STAFF ASSOCIATION,

Petitioner,

V.

TERRI LEE HALDERMAN, ET AL.,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

JOEL I. KLEIN

H. BARTOW Farg, III

SUSAN L. CARNEY

ROGOVIN, STERN & HUGE

1730 Rhode Island Avenue, N.W.

Suite 1100

Washington, D.C. 20036,

(202) 466-6464

; Attorneys for Petitioner

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Reasons for granting the petition

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CITATIONS

Cases: Page

Bell v. Wolfish, 99 S.Ct. 1861 (1979) .................... 8

Cannon v. University of Chicago, 99 S.Ct. *1946

Neen nT nea. seneasacneehenennse 10, 11

Connecticut Association for Retarded Citizens Vv.

Mansfield Training School, No. H-78-653 (D.

ee | 9

cae 2. ee ee Gee. Ge C1978) ............................. 10, 11

Edelman Vv. Jordan, 415 U.S. 651 (1974) .............. 6

Hisen V. Carlisle & Jacquelin, 391 F.2d 555 (2d

EE Ee ee 19

Garrity v. Gallen, No. 78-116 (D.N.H., filed April

Ee 9

Hansberry v. Lee, 311 U.S. 32 (1940) -............. 18, 19, 20

In re Roger S., 19 Cal. 3d 921, 569 P.2d 1286

EE RE 8

Kentucky Association for Retarded Citizens V.

Conn, No. C-78-0157LA (W.D.Ky., filed May 16,

Neen es cinscecntencectccccescane 9

Kremens Vv. Bartley, 97 S.Ct. 1709 (1977) ............. 19

Miener Vv. Missouri, No. 79-1050(2) (E.D.Mo.

Neen a snssecvesenencnseasueseee 11

National Railroad Passenger Corp. v. National

Association of Railroad Passengers, 414 U.S.

SS 12

New Mexico Ass’n for Retarded Children v. New

Mexico, No. 75-6330M (D.N.M. Jan. 1, 1980) . 11

Parham V. J.R., 99 S.Ct. 2498 (1979) .......00.0.... 8, 14

Rizzo Vv. Goode, 423 U.S. 362 (1976) ...................... 8

Rogers v. Frito-Lay, Inc., Nos. 77-2443, 77-3263

SS, a 11

Santa Clara Pueblo vy. Martinez, 98 S.Ct. 1670 -

ECD SE 11,14

Secretary of Public Welfare of Pennsylvenia V.

’ -‘itutionalized Juveniles, 99 S.Ct. 2523

a . . ncnssnscervenqevers 8

Socu.yg for Goodwill to Retarded Children, Inc. v.

Corey, No. 78-C-1847 (E.D.N.Y., filed Aug. 23,

I LE 9

iii

CITATIONS—Continued

Page

Southeastern Community College v. Davis, 99 S.

Oe I Cre rai 11

Switchmen’s Union of North America v. National

Mediation Board, 320 U.S. 297 (1948) 0.000000. 12

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

BIDE D discavssiccccaontnsksasherdhseiehaseasumeieteniecinaan maimed 9,10

United States v. Mattson, 600 F.2d 1295 (9th Cir.

| Sk MMP ROC REET oI aA Wises 10

Washington Ass’n. for Retarded Children Vv.

Thomas, No. C-79-1235V (W.D.Wash., filed

OE, UNI wihassndinc ohcesettiins conncsencisencoesdssaplnachaiaptobeaites 9

Constitutional Provisions:

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Statutes and Rules:

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Re re te IE cet gehc cs castoncentitorncticcuiai eh excdescabobmcacs 3

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GB ee CUO ED, sesitectsccalinccssisneeoesnanoss 17

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50 Pa. Stat. Ann. §§ 4201 et seq. ..00.0..... eee. 4,5

Miscellaneous:

House Report No. 94-58, 94th Cong., Ist Sess. 10,

reprinted in 2 [1975] U.S. Code Cong. & Ad.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1404

PENNHURST PARENTS-STAFF ASSOCIATION,

Petitioner,

V.

TERRI LEE HALDERMAN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Pennhurst Parents-Staff Association, intervenor in the

suit below, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit (App. A, infra, la-97a), issued on

December 13, 1979, and is not yet officially reported.

The opinion of the United States District Court for the

Eastern District of Pennsylvania issued on December 23,

1977, and its order issued on March 17, 1978 (App. C,

infra, 102a-170a) ; both appear at 446 F.Supp. 1295.

yA

JURISDICTION

The judgment of the Court of Appeals (App. B, infra,

98a-10la) was entered on December 13, 1979.1 On

March 10, 1980, Mr. Justice Brennan extended the time

for filing this petition until April 11, 1980. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the provisions of the Develop-

mentally Disabled Assistance and Bill of Rights Act, 42

U.S.C. §§ 6000 et seg. (1975 & 1978 amend.) (the “DD

Act” or the “Act’’), set forth in its entirety in App. D,

infra, 171a-210a.

QUESTIONS PRESENTED

1. Whether the DD Act implicitly creates a private

right of action authorizing a federal court to: (a) de-

termine which facility is best suited for housing each

mentally retarded person; (b) order a state to create new

facilities for such persons; and (c) monitor the on-going

provision of care at such facilities.

2. Whether the DD Act creates a legally enforceable

presumption in favor of community-based care regardless

of state resources or state plans for providing such care.

3. Whether the Court of Appeals erred in failing to

direct the district court to decertify the plaintiff class

when it became clear that the interests of the named

plaintiffs, who sought to close a state institution for the

retarded, were antagonistic to those members of the class

who sought to retain their residence in an improved state

institution.

1The mandate was recalled by the court on March 4, 1980, and

petitioner’s motion to intervene for the purpose of filing a petition

for a writ of certiorari was granted (App. F, infra, 218a-219a).

3

STATEMENT

This class action was brought in May 1974 on behalf

of all current and potential future residents of the Penn-

hurst State School & Hospital, a Pennsylvania facility

that houses more than 1,000 mentally retarded citizens.

Proceeding pursuant to 28 U.S.C. §§ 1331, 1343(3),

plaintiffs, several individuals at Pennhurst, as well as

an organization of some parents and families of Penn-

hurst residents,? alleged that Pennhurst operated in a

manner that violated a variety of its residents’ constitu-

tional and statutory rights. They sought damages and

injunctive relief that would require, inter alia, that

Pennhurst be closed and its residents placed in new,

small, community-based facilities.* Defendants, the State

of Pennsylvania, various counties within Pennhurst’s

service area, and several state and county officials re-

sponsible for the care of mentally retarded citizens in

Pennsylvania, acknowledged the institutional deficiencies

at Pennhurst, but disputed that any federal or state con-

stitutional or statutory violations could be shown.

After a 32-day trial, the district court (Broderick, J.)

denied plaintiffs’ damages claims, but granted their re-

quest for injunctive relief. Halderman v. Pennhurst

State School & Hospital, 446 F.Supp. 1295 (E.D.Pa.

1977). Finding conditions at Pennhurst to be deficient,

the court ruled that the facility violated its residents’

constitutional rights to “minimally adequate habilita-

tion,” id. at 1314, to be “free from harm,” 7d. at 1320,

2The organization was the Parents and Family Association of

Pennhurst, which, at the outset of the litigation, claimed to repre-

sent 200 parents of retarded citizens at Pennhurst. App. at 108a.

8 After the litigation was initiated, several additional individual

plaintiffs, as well as the Pennsylvania Association for Retarded

Citizens and the United States, were granted leave to intervene as

plaintiffs, requesting essentially the same relief as the initial

plaintiffs. :

Y

4

and to “non-discriminatory habilitation,” id. at 1821,*

as well as their federal statutory right to “non-discrimi-

natory habilitation” under 29 U.S.C. § 794 (1973), id.

at 1323,° and their state statutory right to “minimally

adequate habilitation” under 50 Pa. Stat. Ann. §§ 4201

et seq., id. at 1322.°

The remedy fashioned by the district court sought not

to improve the conditions at Pennhurst, but to close the

facility altogether:

In view of the Court’s finding that institutionaliza-

tion at Pennhurst is not conducive to normalization,

which is vital to the habilitation of the retarded, our

Order must provide that immediate steps be taken

to remove the retarded residents from Pennhurst.

446 F.Supp. at 1325.

The court then entered an order requiring, inter alia,

that Pennsylvania close Pennhurst and provide suitable

community living arrangements for its residents. To

implement its decree, the court appointed a master with

instructions essentially to: (1) devise a plan for assur-

ing community placement of each current and potential

resident of Pennhurst; (2) identify and provide for the

resources and staff necessary for implementing the plan;

4 These constitutional rights were based on the Eighth Amend-

ment proscription of cruel and unusual punishment, and the due

process and equal protection clauses of the Fourteenth Amendment.

5 This section provides: “No otherwise qualified handicapped in-

dividual in the United States, as defined in section 706(7) of this

title, shall, solely by reason of his handicap, be excluded from the

participation in, be denied the benefits of, or be subjected to dis-

crimination under any program or activity receiving Federal

financial assistance.” Section 794 was amended in 1978 in ways

irrelevant to the issue in this case. Rehabilitation, comprehensive

services, and Developmental Disabilities Act of 1978, Pub. L. No. 95-

602, Title I, §§ 119, 122(d) (2), 92 Stat. 2982, 2987.

8In relevant part, this statute provides: “The department [of

public welfare] shall have power, and its duty shall be: (1) To

assure within the State the availability and equitable provision of

adequate mental health and mental retardation services for all per-

sons who need them... .”

5

(3) establish a mechanism to monitor the ongoing pro-

vision care to these people; and (4) create a plan for the

operation of Pennhurst until it could be closed.

On appeal, the United States Court of Appeals elected

to hear the case en banc after a panel was unable to

agree upon a majority decision. On December 13, 1979,

a sharply divided court, relying on a legal approach that

differed almost entirely from that of the district court,

largely affirmed the relief ordered below. Halderman Vv.

Pennhurst State School & Hospital, —— F.2d —— (38d

Cir. 1979). The majority ruled that the DD Act created

an implied federal right of action for mentally retarded

citizens with respect to the rights therein enumerated.

Specifically, the court found that the Act provides a ju-

dicially-enforceable federal right to habilitation,’ and

that such habilitation must be provided “in the setting

that is least restrictive of t:.¢ person’s personal liberty.”

App. at 38a. Discerning a congressional preference for

community-based living arrangements—in contrast to in-

stitutional settings such as Pennhurst—the court con-

cluded that “on remand, the [district] court or the Mas-

ter should engage a presumption in favor of placing in-

dividuals in CLA’s [7.e., community living arrange-

ments].” App. at 62a-63a.

Turning to the question of appropriate relief, the court

vacated that part of the district court’s injunction order-

ing that Pennhurst be closed, finding that despite Con-

7 Invoking its pendent jurisdiction, the court also found a similar

implied right of action under state law, 50 Pa. Stat. Ann. §§ 4201

et seq. The court made plain, however, that the state law right

assures only that “to the extent Pennsylvania maintains facilities

for the mentally handicapped, those facilities must provide adequate

treatment or habilitation.” App. at 34a. Thus, in contrast to the

federal statutory relief ordered, the state statute provides no basis

for the creation of new community facilities; nor does it create a

presumption in favor of placement in such facilities. Accordingly,

petitioner does not contest the Court of Appeals’ interpretation of

state law.

6

gress’ preference for community facilities, the Act “did

not anticipate a shutdown of all institutions... .” App.

at 61a. The Court, however, upheld the decision to cer-

tify the case as a class action despite the fact that pe-

titioner had filed a motion to intervene and a brief

amicus curiae in opposition to class certification.’ It also

ruled that the appointment of a master was appropriate

to implement the detailed relief ordered, and rejected de-

fendants’ Eleventh Amendment claims, finding that,

although the relief might be costly, it was pursuant to an

injunction and therefore not barred by Edelman v. Jor-

dan, 415 U.S. 651 (1974).

Chief Judge Seitz, joined by Judges Aldiser+ and

Hunter, dissented. In their view, the majority decision

goes far beyond the proposition that federal courts

should require the state to eliminate the deplorable

conditions at Pennhurst. The effect of the rule is

to require the state to create new facilities regard-

less of the feasibility or practicality of such a course

8 The Court of Appeals also vacated the order insofar as it re-

quired the defendants to find alternative employment for all Penn-

hurst employees.

® Pennhurst Parents-Staff Association is an organization of ap-

proximately 500 members, almost 95 percent of whom are parents,

guardians or close relatives of Pennhurst residents. The Association

did not participate in the district court proceedings. Alarmed at

that court’s decision, however, including especially the order to close

Pennhurst, the Association moved to intervene after judgment. Its

motion was denied because a notice of appeal had already been filed

by one of the defendants. On appeal, the Court of Appeals, sitting

en banc, in a companion case to the instant one, also rejected

the Association’s motion to intervene, noting that the Association’s

position would be pressed by other litigants and that it could file an

amicus curiae brief. See App. E, infra, at 21la-217a. The court did

state, however, that its decision denying the Association’s motion

to intervene was “without prejudice to any motion that [it] might

want to make to intervene for the purpose of petitioning to the

United States Supreme Court for a writ of certiorari. ...” Jd. at

216a. Such a motion was filed on February 28, 1980, and granted by

an en bane decision of the court on March 4, 1980. See App. F,

infra, at 218a-219a.

7

of action. Moreover, because persons develop over

time, the federal courts will become embroiled in

almost continual supervision to ensure that each

individual at any particular moment is in the least

restrictive environment.

Although I believe improvement of Pennhurst to

be mandatory, I do not believe a federal court may

dictate to the state the type of treatment that best

suits every individual. In my view, as long as the

state runs all of its facilities free of the types of

conditions that exist at Pennhurst today, then the

state must be given latitude to choose in which of

the facilities it will place a given individual. A fed-

eral court should remove a person from an insti-

tution or forbid a particular mode of treatment only

in very limited circumstances. Because I can find

no basis for the rule announced by the majority in

statute or Constitution, I dissent from that portion

of its opinion mandating a general right to indi-

vidualized treatment in the least restrictive environ-

ment. App. at 66a-67a.

Accordingly, the dissent found that, even assuming it

provided a private right of action for some purposes, the

DD Act, while seeking to encourage the use of commun-

ity settings, creates neither a legally enforceable duty

against the state to assure the development of new com-

munity facilities, nor a legal presumption mandating

placement of virtually all retarded citizens in such set-

tings. The dissent also rejected plaintiffs’ other federal

and state statutory claims and federal constitutional

claims.

REASONS FOR GRANTING THE WRIT

1. The decision by the Court of Appeals, if allowed

to stand, will transfer to federal district courts the

principal responsibility for care of mentally retarded

citizens in this nation. Under that decision, the federal

courts, rather than state or local governments, must de-

8

termine the appropriate placement for each of the more

than one hundred thousand retarded citizens covered by

the DD Act. If they deem it desirable, the district courts

may also order the states to develop completely new fa-

cilities rather than to upgrade or redesign existing ones.

Once these initial decisions have been made, moreover,

the federal courts may monitor the ongoing provision of

care at the designated facilities in order to assure that

the treatment remains appropriate. As the dissent below

properly stated, the decision “implicates massive and

continual involvement of the federal judiciary in the

multiple problems of the mentally retarded.” App. at

96a.

This Court has repeatedly admonished federal district

courts against assuming the responsibility for adminis-

tering institutions and programs traditionally reserved

to other authorities. See Bell v. Wolfish, 99 S.Ct. 1861

(1979) ; Rizzo v. Goode, 423 U.S. 362, 378-80 (1976).

Indeed, in two recent companion cases involving the

placement of mentally ill and mentally retarded children

in state facilities, the Court specifically cautioned against

over-involvement of the federal courts in these areas,

making plain that “neither judges nor administrative

hearing officers are better qualified than psychiatrists

to render psychiatric judgments.” Parham v. J.R., 99

S.Ct. 2493, 2506-07 (1979), quoting In re Roger S., 19

Cal.3d 921, 941, 569 P.2d 1286, 1299 (1977) (Clark, J.,

dissenting) ; Secretary of Public Welfare of Pennsyl-

vania Vv. Institutionalized Juveniies, 99 S.Ct. 2523

(1979). The decision below radically contravenes these

principles, substituting a Master, appointed by a federal

court, for the state administrators and professionals who

would otherwise have the responsibility for providing

care to retarded citizens.

Absent review by this Court, the effects of the decision

below will not easily be undone. Once federal courts be-

9

gin the transfer of mentally retarded persons to different

facilities and order construction of new facilities rather

than improvement of existing ones, it will be too late

to declare that the responsibility rested with the states

all along. At the very least, the residents of the facilities

will be subjected to needless confusion and dislocation.

Moreover, the decision below may encourage other fed-

eral district courts to follow suit in the large number of

pending cases patterned on the instant one. See, e.g.,

Connecticut Association for Retarded Citizens v. Mans-.

field Training School, Civ. No. H-78-653 (D.Conn., filed

December 6, 1978); Garrity v. Gallen, Civ. No. 78-116

(D.N.H., filed April 12, 1978); Society for Goodwill to

Retarded Children, Inc. v. Carey, Civ. No. 78-C-1847

(E.D.N.Y., filed August 23, 1978); Kentucky Associa-

tion for Retarded Citizens v. Conn, Civ. No. C-78-0157

LA (W.D.Ky., filed May 16, 1977); Washington Asso-

ciation for Retarded Citizens v. Thomas, Civ. No. C-79-

1235V (W.D.Wash., filed October 22, 1979).

In contrast to the approach below, the Fourth Circuit

has recognized that the DD Act provides no license for

federal courts to take over the administration of state

programs for the mentally retarded. United States v.

Solomon, 563 F 2d 1121 (1977). In Solomon, the court

held that the Attorney General of the United States had

no authority to sue to enforce the provisions of the DD

Act. Considering the portion of the Act’s legislative his-

tory that referred to the right to a judicial forum for

protection of the right to treatment, id. at 1125, the

Solomon court stated that it “manifestly refers to a state

judicial forum and not to a federal judicial forum where

the United States customarily sues,” ibid."° This position

is plainly inconsistent with the holding of the Third Cir-

10 The Third Circuit expressly declined to follow the reasoning of

Solomon in this case. App. at lla-12a.

10

cuit that the Act creates rights to be redressed in federal

court."

2. The decision of the Court of Appeals, imposing a

mandatory duty to provide community care for mentally-

retarded persons and implying a private right of action

to enforce it, finds no basis in the DD Act. To the con-

trary, the Act and its legislative history demonstrate

that Congress carefully avoided the imposition of in-

flexible requirements on the states, preferring instead to

allow the states to develop their own programs within

general guidelines. Moreover, Congress selected various

methods for assuring compliance with the Act, without

giving any authority for private rights of action. The

Court of Appeals simply created a new legislative scheme

to replace the one enacted by Congress.

A. It is undisputed that the DD Act creates no ex-

press right of action for private parties. The Court of

Appeals, by applying the four-factor analysis established

in Cort v. Ash, 422 U.S. 66 (1975), nevertheless decided

that a private right of action was implied in the Act.

See Cannon v. University of Chicago, 99 S.Ct. 1946

(1979). In our view, that conclusion stretches the Cort

11The Third Circuit also adopted a markedly different position

from that of the Fourth Circuit on the right of the United States

to maintain a suit or to intervene in actions founded on the DD

Act. Compare 563 F.2d at 1125-29, with App. at 9a-13a. In

Solomon, the court ruled that, in the absence of a clear congres-

sional expression to the contrary, the doctrine of separation of

powers restrains the Attorney General from bringing a suit to

enforce the Act. See also United States v. Mattson, 600 F.2d 1295

(9th Cir. 1979). The decision below, by contrast, rejected the

separation of powers analysis, and upheld the United States’ right

to intervene in the suit under Fed.R.Civ.P. 24(b).

12 The court must ascertain:

(1) Whether the statute was enacted for the “especial benefit”

of a class of which plaintiff is a member;

(2) Whether there is any explicit or implicit indication of a

legislative intent either to create or deny such a remedy;

[Continued on page 11]

11

v. Ash test beyond the breaking point."*

We do not question, of course, that the Act was in-

tended to benefit developmentally disabled persons. But

that fact is the beginning, not the end, of the inquiry.

See Santa Clara Pueblo v. Martinez, 98 S.Ct. 1670

(1978). As this Court recently noted, there is

far less reason to infer a private remedy in favor

of individual persons if Congress, instead of draft-

ing [the statute] with an unmistakable focus on the

benefited class, had written it simply as a ban on

discriminatory conduct by recipients of federal

funds or as a prohibition against the disbursement

of public funds to educational institutions engaged

in discriminatory practices. Cannon v. University

of Chicago, supra, 99 S.Ct. at 1955 (footnote

omitted).

12 [Continued ]

(3) Whether creation of a private remedy would frustrate or

enhance the underlying purpose of the legislative scheme;

and

(4) Whether implying a federal remedy is inappropriate be-

cause the subject matter involves an area “traditionally

relegated to state law.”

Cort Vv. Ash, supra, 422 U.S. 66, 78 (1975); see also Cannon v. Uni-

versity of Chicago, 99 S.Ct. 1946, 1953 & n.9 (1979).

13 As the Court below recognized, App. at 28a, a decision in this

case will almost certainly have significant ramifications not only

for similar suits brought under the DD Act, but for suits asserting

implied remedies under Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794 (1973 & 1978 amend). Many such suits, in-

cluding this one, have been brought under § 504. Rogers v. Frito-

Lay, Inc., Nos. 77-2448, 77-3263 (5th Cir. February 15, 1980);

New Mexico Association for Retarded Children v. New Mevico,

No. 75-6330M (D.N.M. January 1, 1980); Miener v. Missouri, No.

79-1050C (2) (E.D.Mo. January 25, 1980).

This Court has heretofore expressly reserved decision on the

question of any remedies implied by § 504. See Southeastern

Community College v. Davis, 99 S.Ct. 2861, 2366 n.5 (1979).

12

Since the DD Act is principally a federal financial as-

sistance statute, there is reason to conclude that it lacks

the “unmistakable focus” to which Cannon refers."*

But even assuming that the Act has the requisite

special “focus,” its structure and purposes nonetheless

strongly indicate that Congress deliberately chose not to

provide a private right of action. A: this Court has

recognized, Congress may establish a system that depends

for enforcement on _ specified administrative action,

rather than on individualized action in federal courts.

See, e.g., National Railroad Passenger Corp. v. National

Association of Railroad Passengers, 414 U.S. 453

(1974) ; Switchmen’s Union of North America v. Na-

tional Mediation Board, 320 U.S. 297, 300-01 (1943).%

That is precisely what Congress has done in the DD Act.

The Act contains a clear and comprehensive scheme to

vindicate the interests it seeks to protect. That scheme

rests primarily on the administrative authority of the

Secretary of Health, Education and Welfare. For ex-

ample, the Secretary is empowered to condition pay-

ment of each state’s federal allotment on the filing with

and approval by the Secretary of a state plan for the

provision of services to the developmentally disabled, 42

U.S.C. § 6063; on the filing with and approval by the

Secretary of a state plan for implementing an evaluation

system to monitor the effectiveness of funded programs,

42 U.S.C. § 6063; and on the preparation for each par-

ticipant in a state program receiving federal funds under

14 ]t bears noting that, when Congress has intended to make a

private right of action available to enforce rights established in a

federal financial assistance statute, it has done so in clear and

unmistakable terms. See, e.g., 42 U.S.C. § 6104(e)(1) (1978) .

15 In Switchmen’s Union, the Court specifically noted that Con-

gress had created not only a right but a means of enforcing it,

stating: “Congress for reasons of its own decided upon the

method for the protection of the ‘right’ which it created. It se-

lected the precise machinery and fashioned the tool which it

deemed suitable to that end.” 320 U.S. at 301.

18

the Act of a detailed, individual “habilitation plan” meet-

ing statutory and regulatory requirements, and subject

to annual review, 42 U.S.C. $6011. Following notice

to and opportunity for hearing by the state, the Secre-

tary may, if compliance has not been otherwise achieved,

disapprove state plans and terminate federal funding.

42 U.S.C. § 6063. The Act specifically provides, more-

over, that the United States Court of Appeals for the

state in question shall hear all state objections to ad-

verse decisions by the Secretary. 42 U.S.C. § 6068.

Congress even went beyond this federal administra-

tive enforcement scheme and mandated, as a condition

to federal aid, that each state establish an Office of Pro-

tection and Advocacy to protect the beneficiaries of the

Act. 42 U.S.C. § 6012. This office must “have the au-

thority to pursue legal, administrative, and other appro-

priate remedies to insure the protection of the rights of

such persons who are receiving treatment, services, or

habilitation within the State.” Jbid. Thus, Congress

provided an express mechanism for enforcing existing

rights and remedying individual grievances, without

creating yet another set of federal remedies inherent in

establishing a private right of action.

The purposes of the legislative scheme also leave little

ground for inferring a cause of action from the Act. The

‘“overall purpose” of the Act is “to assist States to as-

sure that persons with developmental disabilities receive

the care, treatment, and other services necessary . . .”

(emphasis supplied).*® The approach sanctioned below,

16 The “Congressional declaration” at the outset of the Act like-

wise describes its specific purposes as:

(A) to assist in the provision of comprehensive services to

persons with developmental disabilities . . .

(B) to assist States in appropriate planning activities .. .

[Continued on page 14]

14

far from assisting the States, improperly displaces their

authority in favor of administration by a federal court.

See Santa Clara Puebio v. Martinez, supra, 98 S.Ct. at

1677-80. Moreover, the finite resources available to the

states may be diverted from care of the disabled to de-

fense of the numerous individualized lawsuits that may

be expected to arise, a result that ultimately undercuts

the intention of the Act. See id. at 1681.

Finally, and perhaps most critical in this case, the

creation of a federal right of action will seriously erode

the traditional role of the state as parens patriae. Par-

ham v. J.R., supra. The Act is explicit that no such re-

duction in state authority is intended:

Except as otherwise specifically provided, nothing

in this chapter shall be construed as conferring on

any Federal officer or employee the right to exer-

cise any supervision or control over the administra-

tion, personnel, maintenance, or operation of any

facility for persons with developmental disabilities

with respect to which any funds have been or may

be expended under this chapter. 42 U.S.C. § 6003

(emphasis supplied).

It is simply incompatible with this provision to allow

federal courts, under the guise of ordering “appropriate

treatment,” to take control of all decisions regarding

16 [Continued ]

(C) to make grants to States and public and private, non-

profit agencies to establish model programs, ...

(D) to make grants to university affiliated facilities to as-

sist them in administering and operating demonstration fa-

cilities ... [and]

(E) to make grants to support a system in each State to

protect the legal and human rights of all persons with de-

velopmental disabilities.

42 U.S.C. § 6000(b) (2) (1978 amend.)

15

treatment facilities and to exercise continuing super-

vision over the operation of such facilities.”

In short, despite the obvious concern of Congress to

improve care for the mentally retarded, there is no indi-

cation that Congress intended to achieve that goal

through private suits in federal court. Rather, Congress

provided methods of enforcement that protect the rights

of the retarded without stripping the States of primary

responsibility for the care of their own citizens. The

Court of Appeals erred, therefore, in concluding that the

DD Act impliedly authorizes private suits to enforce its

provisions.

B. Turning to the merits, the Court of Appeals found

that the DD Act requires every state to provide ‘“com-

munity living arrangements” for each of its retarded

citizens, except for those “probably comparatively rare”

individuals who absolutely require institutionalization.

App. at 45a. As Chief Judge Seitz observed in dissent,

“(tlhe effect of th[is] rule is to require the state to

create new facilities regardless of the feasibility or

17 The actual extent of the displacement of staic authority is dra-

matically illustrated by developments in the instant case. On re-

mand from the Court of Appeals, the district court entered a

memorandum opinion and order on February 22, 1980, to govern

implementation. (App. G, infra, 220a-23la.) The order requires

that a group consisting of the resident, his or her parent or guar-

dian, an advocate or next friend for the resident, and the case

manager responsible for the resident’s care prepare an individual

treatment plan designating the appropriate setting for each Penn-

hurst resident. App. at 225a. All disputes within this group

initially are to be resolved by the Master. /bid.

In addition, the order mandates the appointment of a second

Master, called a “Hearing Master,” to conduct individualized hear-

ings when the initial Master cannot resolve disputes informally.

The Hearing Master, or any of the parties to the hearing, may

compel the production of witnesses and other evidence, and must

tape record the hearing. App. at 227a. Upon completion of the

hearing, the Hearing Master must issue a report as to the appro-

priate placement for the person under consideration. Objections

to this report may be filed with the court. App. at 228a.

16

practicality of such a course of action.” App. at 67a.

The Act contains no such requirement.

The Court of Appeals first overstates the objectives

of the Act and then proceeds to recast these objectives

into obligations. Section 6010(2) of the Act, on which

the court below primarily relies, directs that “(t]he

treatment, services, and habilitation for a person with

developmental disabilities . . . should be provided in the

setting that is least restrictive of the person’s personal

liberty.” (Emphasis supplied.) Similar admonitions are

repeated throughout the Act. But it is a very different

matter to say that Congress intended the states im-

mediately to relocate all but a handful of patients to

community-based facilities, whatever the cost, feasibility

or appropriateness might be.

Nothing in the Act suggests that institutional settings,

such as Pennhurst, are inappropriate for all but a few,

“probably comparatively rare” mentally retarded individ-

uals. On the contrary, the least restrictive setting for

each retarded person depends upon his or her individual

needs as well as the realistic alternative placements

available.’* In contrast to the court below, Congress

foresaw no panacea in the hollow slogan of “community

care.” Rather, it realized that deinstitutionalization is

the preferred approach for those mentally retarded citi-

zens who can properly benefit from quality community

care.

The dissent of Chief Judge Seitz discusses in persua-

sive detail the materials showing that Congress estab-

lished a goal of community care where appropriate, not

18 Indeed, petitioner believes that for many developmentally

disabled persons, particularly those who are profoundly or severely

retarded, a large congregate institution that offers diverse, quality

programs will afford more respect for and protection of the per-

son’s liberty than would life in a small discrete, community fa-

cility.

17

an inflexible requirement. App. at 68a-72a. The governing

regulations of HEW, for example, do not impose the

duty created by the Court of Appeals but require only

that the states “support” community programs “to the

maximum extent feasible.” 45 C.F.R. § 1386.43 (1978).

Reviewing that provision, the dissent aptly observed: “I

fail to see how a duty to ‘support’ ‘feasible’ non-iustitu-

tional care can be elevated to an absolute duty to pro-

vide the least restrictive treatment for every individual

regardless of cost or available resources.” App. at 70a.

The legislative history supports the same view. Dis-

cussing the provisions regarding community care, the

pertinent House Report stated:

Since the Committee is well aware that current

theory with regard to the treatment and support

of the developmentally disabled emphasizes that this

treatment should be conducted in the individual’s

community without unnecessarily institutionalizing

him, the Committee has chosen to include a specific

requirement that state programs plan for as much

deinstitutionalization as is feasible, and earmark

monies for this purpose. Knowing that this may

require some increase in expenditures, the Commit-

tee has also increased the authorization of appro-

priations.

It is anticipated that these requirements will

prompt some movement of patients from State in-

stitutions back into their communities. Jt is hoped

that corresponding amounts of State and other

funds currently being spent on institutional care

will be re-budgeted for community care, an ob-

vious re-budgeting that has not always occurred

in conjunction with deinstitutionalization efforts.

House Rep. No. 94-58, 94th Cong., Ist Sess. 10, re-

printed in 2 [1975] U.S. Code Cong. & Ad. News 919,

928, quoted in Halderman v. Pennhurst, App. at 70a

(Seitz, C.J., dissenting) (emphasis supplied). This his-

18

tory strongly indicates that the Act imposes only obli-

gations of good faith effort and that it intentionally

leaves needed discretion to the states. The decision below

drastically distorts this legislative approach.

3. The Court of Appeals compounded the effects of

its error by affirming the certification of this case as a

class action. As a consequence, the large number of

Pennhurst residents represented by petitioner have had

their interests litigated by representative plaintiffs with

objectives directly antagonistic to their own. This ap-

proach is not only indefensible under Rule 23(a) of the

Federal Rules of Civil Procedure but is directly con-

trary to the constitutional teachings of Hansberry v. Lee,

311 U.S. 32 (1940).

When this suit began in 1974, the representative plain-

tiffs sought to compel the improvement of the Pennhurst

facility, rather than its closing, an objective with which

no resident of Pennhurst could disagree. On November

29, 1976, therefore, the district court certified a plain-

tiff class including “all persons who as of May 30, 1974,

and at any time subsequent, have been or may become

residents of Pennhurst . . .” App. at 7a. Following

that certification, however, the representative plaintiffs

dramatically shifted course, seeking to close Pennhurst

entirely. At that point, they were no longer qualified

to represent the interests of class members like those rep-

resented by petitioner, who believed that the closing of

Pennhurst would cause considerable harm.

Rule 28(a), Fed. R. Civ. P., states that “[fol]ne or

more members of a class may sue * * * as representa-

tive parties on behalf of all only if * * * (3) the claims

or defenses of the representative parties are typical of

the claims or defenses of the class, and (4) the repre-

sentative parties will fairly and adequately protect the

interests of the class.” (Emphasis added.) It is im-

possible to say, however, that a class member seeking to

19

close Pennhurst has a claim typical of the claims of

members seeking to keep it open or that he will fairly

and adequately protect the adverse interests of other

members cf the class. See Kremens v. Bartley, 97 S.Ct.

1709 (1977). Once the district court was made aware

that the class was fragmented,” it should have “carefully

scrutinize[d] the adequacy of representation” and “elimi-

nate[d] so far as possible the likelihood that . . . plaintiff

ha[d] interests artagonistic to those of the remainder of

the class,” Hisen v. Carlisle & Jacquelin, 391 F.2d 555,

562 (2d Cir. 1968) (citation omitted). Indeed, the need

for such scrutiny was especially important in this case be-

cause dissenting class members had no right to “opt out”

of the suit. The district court, however, failed to provide

any relief at all.*°

This Court has made plain that due process does not

permit the rights of absent parties to be represented by

a person hostile to them. Rejecting that notion in Hans-

berry v. Lee, supra, the Court observed:

19 Individual class members submitted letters to the Court, ex-

pressing their distress and fear at the closing of Pennhurst.

Although these letters were sent after trial, it is apparent that, in

view of the nature of the class, the lack of sophistication in its

organization, and the fundamental change in the nature of the

suit, this notice was adequate to inform the court that class certi-

fication was no longer appropriate.

20The Court of Appeals affirmed the class certification, saying

that the views of dissident class members could be expressed dur-

ing the “relief stage,” which may ultimately require individual-

ized hearings for each of the approximately 1200 residents of

Pennhurst. That is not a satisfactory result. Not only will such

hearings be costly, lengthy, and possibly unworkable, but they will

be subject to an unwarranted class-wide presumption in favor of

community facilities. That presumption has been imposed on all

class members despite the fact that it is contrary to the best in-

terests of many of them. It will be too late to challenge the ex-

istence of that presumption at the hearings on relief. See Appen-

dix G, infra.

20

It is one thing to say that some members of a

class may represent other members in a litigation

where the sole and common interest of the class in

the litigation, is either to assert a common right or

to challenge an asserted obligation. It is quite an-

other to hold that all those who are free alterna-

tively either to assert rights or to challenge them

are of a single class, so that any group merely be-

cause it is of the class so constituted, may be deemed

adequately to represent any others of the class

in litigating their interests in either alternative.

Such a selection of representatives for purposes of

litigation, whose substantial interests are not neces-

sarily or even probably the same as those whom they

are deemed to represent, does not afford that pro-

tection to absent parties which due process re-

quires. Id. at 44-45 (citations omitted).

Those principles, fully applicable here, were simply ig-

nored by both courts below.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOEL I. KLEIN

H. BARTOW Fark, III

SUSAN L. CARNEY

ROGOVIN, STERN & HUGE

1730 Rhode Isiand Avenue, N.W.

Suite 1100

Washington, D.C. 20036

(202) 466-6464

Appendices

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 78-1490, 78-1564 and 78-1602

TERRI LEE HALDERMAN, a retarded citizen, by her mother

and guardian, Winifred Halderman; LARRY TAYLOR, a

retarded citizen, by his parents and guardians, Elmer

and Doris Taylor; KENNY TAYLOR, a minor, a re-

tarded citizen, by his parents and guardians, Elmer and

Doris Taylor; ROBERT SOBETSKY, a minor, a retarded

citizen, by his parents and guardians, Frank and

Angela Sobetsky; THERESA SOBETSKY, a retarded citi-

zen, by her parents and guardians, Frank and Angela

Sobetsky; NANCY BETH BOWMAN, a retarded citizen, by

her parents and guardians, Mr. and Ms. Horace Bow-

man; LINDA TAUB, a retarded citizen, by her parents

and guardians, Mr. and Mrs. Allen Taub; GEORGE

SOROTOS, a minor, a retarded citizen by his foster par-

ents, William and Marion Caranfa, all of the above

individually and on behalf of all others similary situ-

ated; THE PARENTS AND FAMILY ‘ASSOCIATION OF

PENNHURST

PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, JO

SUZANNE MOSKOWITZ, a minor, by her parents and

next friends, Leonard and Nancy Moskowitz, ROBERT

HIGHT, a minor, by his parents and next friends, John

and Jeanne Hight, DAvID PREUSCH, a minor by his

parents and next friends, Calvin and Elizabeth Preusch,

and CHARLES DINOLFI, On behalf of themselves and

all other similarly situated,

Plaintiffs-Intervenors

2a

UNITED STATES OF AMERICA,

Plaintiff-Intervenor

VS.

PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT

OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENN-

SYLVANIA, FRANK S. BEAL, Secretary of the Depart-

ment of Public Welfare, STANLEY MEYERS, Deputy

Secretary for Mental Retardation, Department of Pub-

lic Welfare, HELENE WOHLGEMUTH, Former Secre-

tary, Department of Public Welfare, ALDO COLAUTTI,

Executive Deputy Secretary, Department of Public

Welfare, WILBUR HosBs, Deputy Secretary for South-

eastern Region, Department of Public Welfare, Rus-

SELL RICE, JR., Commissioner of Mental Retardation

for Southeastern Region, Department of Public Wel-

fare, C. DUANE YOUNGBERG, Superintendent, Penn-

hurst State School & Hospital, ROBERT SMILOVITZ,

Former Assistant Superintendent, Pennhurst State

School & Hospital, JOSEPH FOSTER, Assistant Superin-

tendent, Pennhurst State School & Hospital, MARGARET

GREEN, BETTY UPHOLD, ALICE BARTON, P. E. KLICK,

Dr. PAROCCA, HELEN FRANCIS, employees and agent

of Pennhurst State School & Hospital, JOHN Doctor,

JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD

ROE, JANE DOE, unknown and unnamed staff, employees

and agents of Pennhurst State School & Hospital, each

individual Defendant sued individually and in his or

her official capacity, GEORGE METZGER, JOSEPH CaA-

TANIA, and ROGER BOWERS, Commissioners for Bucks

County, ROBERT STREBL, EARL BAKER, and LEO Mc-

DERMOTT, Commissioners for Chester County, FAITH

R. WHITTLESEY, CHARLES KEELER and WILLIAM

SPINGLER, Commissioners for Delaware County, A.

RUSSELL PARKHOUSE, FRANK W. JENKINS and LAW-

RENCE H. CurRyY, Commissioners for Montgomery

County, MAYOR FRANK L. RIZZO and THE CITY CouN-

3a

CIL OF PHILADEPHIA, as Authorities for Philadelphia

County, PETER BODENHEIMBER, Mental Health/Mental

Retardation Administrator for Bucks County, WIL-

LIAM A. MCKENDRY, Mental Health/Mental Retarda-

tion Administrator for Chester County, P. PAUL BuR-

RICHTER, Mental Health/Mental Retardation Adminis-

trator for Delaware County, HERMANN A. ROETHER,

Mental Health/Mental Retardation Administrator for

Montgomery County, and LEON SOFFER, Mental

Health/Mental Retardation Administrator for Phila-

delphia County, Commonwealth of Pennsylvania De-

fendants Pennhurst State School & Hospital, Depart-

ment of Public Welfare of the Commonwealth of Penn-

sylvania, Frank §S. Beal, Stanley Meyers, Helene

Wohlgemuth, Aldo Colautti, Wilbur Hobbs, Russell

Rice, Jr., C. Duane Youngberg, Robert Smilovitz,

Joseph Foster, Margaret Green, Betty Uphold, Alice

Barton, P. E. Klick, Dr. Paroceca, and Helen Francis,

Appellants in No. 78-1490

GEORGE METZGER, JOSEPH CATANIA, and ROGER BOWERS,

Commissioners for Bucks County, and PETER BODEN-

HEIMBER, Mental Health/Mental Retardation Adminis-

trator for Bucks County, ROBERT G. STREBL, EARL M.

BAKER, and LEO MCDERMOTT, Commissioners for

Chester County, and WILLIAM A. MCKENpDRY, Mental

Health/Mental Retardation Administrator for Chester

County, FAITH RYAN WHITTLESEY, CHARLES C. KEL-

LER, and WILLIAM A, SPINGLER, Commissioners for

Delaware County, and P. PAUL BURRICHTER, Mental

Health/Mental Retardation Administrator for Dela-

ware County, and A. RUSSELL PARKHOUSE, FRANK W.

JENKINS, and LAWRENCE H. Curry, Commissioners for

Montgomery County, and HERMANN A. ROETHER, Men-

tal Health/Mental Retardation Administrator for Mont-

gomery County,

Appellants in No. 78-1564

4a

MAYOR FRANK L. RIZZO, THE CITY COUNCIL OF

PHILADELPHIA, and LEON SOFFER,

Appellants in No. 78-1602

On Appeal From the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 74-1345)

Argued: January 9, 1979

Before: SEITZ, Chief Judge, GIBBONS and

HIGGINBOTHAM, Circuit Judges

Reargued en bane September 6, 1979

Before: SEITZ, Chief Judge, ALDISERT, GIBBONS,

ROSENN, HUNTER, WEIS, GARTH,

HIGGINBOTHAM and SLOVITER, Circuit Judges

(Opinion Filed December 13, 1979)

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This is an appeal from an order granting class action

injunctive relief against the continued maintenance of

Pennhurst State School and Hospital (Pennhurst), a

facility for the care and training of persons suffering

mental retardation. Located in Spring City, Pennsyl-

vania, Pennhurst is operated under the direction of the

5a

Pennsylvania Department of Public Welfare. The appel-

lants are Pennhurst, its superintendent and various other

officials of the Commonwealth of Pennsylvania responsible

for the operation of Pennhurst (the Commonwealth de-

fendants), and five counties in southeastern Pennsylvania

from which mentally retarded persons are admitted to

Pennhurst (the County defendants).' The appellees are

the original and intervening plaintiffs, described more

fully below. We affirm the trial court’s finding of lia-

bility, and modify in part the court’s decree.

I. PROCEEDINGS BELOW

The action commenced on May 30, 1974, when Terri

Lee Halderman, a minor retarded resident of Pennhurst,

for herself and all other Pennhurst residents, filed a com-

plaint against the Commonwealth defendants. The com-

plaint alleged that the residents, all of whom are mentally

retarded, live in inhumane and dangerous conditions, are

subjected to unnecessary physical restraints, are given

unnecessary and dangerous medication, are consigned to

lives of idleness because of lack of habilitative programs,

and are subjected to numerous physical injuries result-

ing from a lack of adequate supervision. The complaint

further charged that the regimen of Pennhurst caused

Halderman and her class to deteriorate and regress emo-

tionally, intellectually and physically. The conditions to

which residents were subjected, she claimed, denied the

class members due process and equal protection of the

law, and inflicted on them cruel and unusual punishment.

Halderman sought both injunctive relief against the con-

ditions at Pennhurst and money damages for past in-

juries.

1The Commonwealth defendants are appellants in No. 78-1490.

Appellants in No. 78-1564 include Bucks, Chester, Delaware and

Montgomery Counties. Philadelphia is appellant in No. 78-1602. In

a related case, No. 78-1999, disposed of separately, Pennhurst

Parents-Staff Association appeals from the denial of its motion to

intervene.

6a

In November 1974, the United States moved pursuant

to Rule 24, Fed. R. Civ. P. 24, to intervene as a plaintiff.

Its complaint sought injunctive relief against the Com-

monwealth defendants, citing the same conditions about

which Halderman had complained. The Commonwealth

defendants opposed intervention by the United States, but

it was granted on January 17, 1975."

On June 3, 1975, the Pennsylvania Association for

Retarded Citizens (PARC) and several additional men-

tally retarded residents of Pennhurst moved to inter-

vene. Like the United States, PARC and the additional

individual plaintiffs sought only injunctive relief and

proceeded only against the Commonwealth defendants.

Thereafter PARC and Halderman amended their com-

plaints to seek relief, not only against the Commonwealth

defendants, but also against the County defendants, who

it was alleged, were responsible for the commitment of

the mentally retarded to Pennhurst and also for the lack

of local community facilities, access to which the class

members were entitled. In the amended complaint the

PARC and Halderman plaintiffs alleged violations of

various rights arising under the eighth and fourteenth

amendments of the United States Constitution; under

section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794 (1976); under the Developmentally Disabled As-

sistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081

(1976) ; under the Pennsylvania Mental Health and Men-

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

§§ 4101-4704 (Purdon 1969). The district court, on

November 29, 1976, denied motions to dismiss filed by

the various defendants, and entered an order determining

2The Commonwealth defendants thereafter sought a writ of

mandamus from this court to compel the district court to dismiss

the United States as a party. The writ was denied, and petitions

for certiorari and for a stay of this court’s order were denied by

the Supreme Court. Beal v. Broderick, 431 U.S. 983 (1977).

Ta

that the action should -be maintained as a class action,

the class consisting of “all persons who as of May 30,

1974, and at any time subsequent, have been or may be-

come residents of Pennhurst ...” This included, besides

current residents of the institution, all mentally retarded

residents of the five counties of southeastern Pennsylvania

who might in the future be placed in Pennhurst.

After extensive pretrial discovery, trial of the action

commenced on April 18, 1977, and continued until June

13, 1977. On December 23, 1977, the trial judge made

findings of fact and conclusions of law holding that the

defendants were violating the rights of members of the

mentally retarded class secured to them by section 504

of the Rehabilitation Act of 1973, by the Pennsylvania

Mental Health and Mental Retardation Act of 1966, Pa.

Stat. Ann. tit. 50, §§ 4201-4704 (Purdon 1969), by the

due process and equal protection clauses of the four-

teenth amendment, and by the eighth amendment pro-

hibition against cruel and unusual punishment.’ The

court held that the mentally retarded have a federal

statutory right to nondiscriminatory habilitation, a Penn-

sylvania statutory right to minimally adequate habilita-

tion, and federal constitutional rights to nondiscrimina-

tory habilitation, freedom from harm, and adequate treat-

ment by the least restrictive means. Each of these rights

was found to have been violated by the conditions of

confinement at Pennhurst. Thereafter, on January 6,

1978, the court held a separate hearing on relief. The

court requested that the parties meet and attempt to

agree upon an order satisfactory to all the litigants.

After meeting, the parties informed the court that they

could not, and would not be able to, agree on an order.

The court then asked the parties to submit separate

proposed orders.

3 The district court’s opinion is reported at 446 F. Supp. 1295.

8a

On March 17, 1978, the court issued the order from

which these appeals were taken.‘ The court ordered that

Pennhurst eventually be closed and suitable community

living arrangements and necessary support services pro-

vided for all Pennhurst residents (approximately 1200) ;

that individualized program plans be developed for each

resident with the participation of each class member or

his next friend at the formulation and implementation

stages; and that plans for the removal of Pennhurst resi-

dents to appropriate community based mental retarda-

tion programs, meeting individual needs and structured

in the least restrictive, most integrated setting, be devel-

oped and submitted to the court. The order also provided

for the appointment of a Special Master to supervise the

planning and implementation of arrangements for plac-

ing Pennhurst residents elsewhere, and for the opera-

tion of Pennhurst until such placements were accom-

plished. It enjoined the County defendants from rec-

ommending future commitments of mentally retarded

persons to Pennhurst, and forbade the Commonwealth

defendants from placing additional persons there. It

also established a “friend-advocate” program to repre-

sent the class members in monitoring the provision of

community living arrangements. During the period of

gradual phase-out of Pennhurst as a home for the men-

tally retarded, the Commonwealth defendants were or-

dered to take steps to prevent any recurrence of some of

the more egregious abuses of residents which the court

found to have occurred in the past. The order further

empowered the Master to establish a plan to provide

alternative employment for all Pennhurst employees. An

application for a stay of the March 17, 1978 order was

4 The court entered judgment in favor of the defendants on the

claim for money damages, and no appeal has been taken from that

determination.

9a

denied by the district court® and a panel of this court

denied a stay pending appeal.

A panel of this court heard argument in the case on

January 9, 1979. When no single opinion could com-

mand majority support, the case was set down for en

bane disposition. Thereafter, renewed motions for a stay

pending appeal were considered by the court en banc

and on August 6, 1979 the court reserved judgment

thereon, except that the order appealed from was

“stayed to the extent that it shall not apply to transfers

out of Pennhurt of any resident whose parents or guar-

dian fails to sign a written consent to such transfer.”

In other respects, its implementation has gone forward

pending appeal.

II. UNITED STATES INTERVENTION

The Commonwealth defendants, relying on United

States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), con-

tended that the court erred in permitting the United

States to intervene as a plaintiff. In Solomon the United

States filed a complaint charging the State of Maryland

with violating the rights of mentally retarded residents

of the Rosewood State Hospital. The district court dis-

missed the action, holding that the United States lacked

authority to bring it. The Fourth Circuit affirmed. In

the instant case, equating intervention under Rule 24

with the original action in Solomon, the Commonwealth

defendants urge that Solomon be followed and interven-

tion by the United States disapproved. Of course, since

the Halderman and PARC appellees defend the order

appealed from on all the same grounds that the United

States does, the resolution of the federal government’s

right to participate has no effect on the merits of the ap-

peal. But its standing as an intervenor would determine

5 Halderman v. Pennhurst State Sch. & Hospital, 451 F. Supp.

233 (E.D. Pa. 1978).

10a

the standing of the United States to seek or oppose Su-

preme Court review. Thus it is appropriate that we ad-

dress that question.

In Solomon the Fourth Circuit acknowledged the num-

erous federal statutes evidencing a federal interest in,

concern for, and activity with respect to the mentally

retarded.® It pointed out that no statute expressly au-

thorized the United States to bring suit to challenge the

alleged deprivation of the rights of the retarded. Review-

ing and purporting to distinguish numerous cases sus-

taining the authority of the United States to sue in the

absence of such express statutory authorization,’ the

court said:

6 These included §§ 1905(c) and (d) of Title XIX of the Social

Security Act, 42 U.S.C. § 1896(c)(d) (1976); the Education of the

Handicapped Act, 20 U.S.C. §§ 1401-1461 (1976); the Developmen-

tal Disabilities Services and Facilities Construction Act, 42 U.S.C.

§§ 2661-2666 and 2670-2677c, as amended by the Developmentally

Disabled Assistance and Bill of Rights Act, Pub. L. No. 94-103, 89

Stat. 496, 42 U.S.C. §§ 6001-6081 (1976) ; the surplus food program,

7 U.S.C. § 1431 (1976); and the school lunch program for institu-

tionalized children, 42 U.S.C. § 1761 (1976).

7 See, e.g., New York Times Co. v. United States, 403 U.S. 713

(1971) (suit to enjoin publication of the Pentagon Papers); In re

Debs, 158 U.S. 564 (1895) (suit to enjoin strike affecting interstate

commerce) ; United States v. San Jacinto Tin Co., 125 U.S. 273

(1888) (suit to set aside patent to land procured by fraud) ; United

States v. Bell Telephone Co., 128 U.S. 315 (1888) (suit to set aside

invention patent obtained by fraud); United States v. Brand Jewel-

ers, Inc., 318 F. Supp. 1293 (S.D.N.Y. 1970) (suit to enjoin sys-

tematic due process violations in collection of consumer credit

obligations). Perhaps not surprisingly, the strongest resistance to

the standing of the United States to sue in the absence of an

express statutory authorization has arisen out of its efforts to

enforce civil rights. As the Solomon court put it:

Congressional concern with federal-state relations in the area

of civil rights is sufficiently great that we are reluctant to sus-

tain nonstatutory executive acts in all but the clearest case.

563 F.2d at 1129. See also United States v. School Dist. of Ferndale,

400 F. Supp. 1122 (E.D. Mich. 1975), aff'd in part and remanded in

part, 577 F.2d 1339 (6th Cir. 1978) ; United States v. County School

lla

[W]e decline to hold that in the absence of specific

authority the United States may sue in the instant

ease. Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952)—the so-called “Steel Seizure

Case”—is one of the reasons for our decision. It

raised the question of whether the President had

the authority to seize the nation’s steel industry in

an effort to prevent a crippling steel strike during

the Korean War. Because the President had no

statutory or constitutional authority to seize the

mills, the Court held that the seizure was illegal

and improper.

The case is important here because of the light

that it sheds on the doctrine of separation of powers.

563 F.2d at 1128.

We do not find persuasive the Solomon court’s anal-

ogy between President Truman’s nonjudicial seizure of

the steel mills by military force and a judicial proceeding

to obtain injunctive relief enforcing legislative policies

in aid of the mentally retarded. There is all the dif-

ference in the world for separation of powers purposes

between a naked exercise of executive power and execu-

tive branch resort to the judicial branch for relief which

Congress has not expressly prohibited. The President

is, after all, charged with the responsibility to “take Care

Bd., Prince George County, 221 F. Supp. 93 (E.D. Va. 1963);

United States v. Biloxi Mun. School Dist., 219 F. Supp. 691 (S.D.

Miss. 1963), and United States v. Madison County Bd. of Educ.,

219 F. Supp. 60 (N.D. Ala. 1963), both aff’d on other grounds, 326

F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964). We see in the

Developmentally Disabled Assistance and Bill of Rights Act, 42

U.S.C. §§ 6001-6081 (1976) and § 504 more concern for the handi-

capped than for federal-state relations. Congress must be aware,

from the annual reports of the Attorney General (1974, p. 7374;

1975, pp. 85-86; 1976, pp. 111-112; 1977, pp. 161-162), that a litiga-

tion program intended to strengthen the rights of mentally retarded

persons is an ongoing Justice Department activity. It has not

reacted negatively.

ha

12a

that the Laws be faithfully executed .. .” U.S. Const.

art. II, § 3. When, in an effort to do so, he resorts to

an Article III court under a recognized grant of federal

jurisdiction such as 28 U.S.C. § 1345, and that court

finds no legislative prohibition against that resort, the

lawsuit cannot reasonably be seen as an invasion of the

powers of Congress. Before relief can be given in such

a suit, one branch, the executive, must seek it, while a

second branch, the judiciary, must agree that it is au-

thorized by the law promulgated by a third branch. If

the judiciary has, in an individual case, misconstrued

the law, Congress can, constitutional pronouncements

aside, change the rule for the future. If Congress wishes

to withhold from the executive branch the civil remedies

available under the Federal Rules of Civil Procedure,

it can by specific legislation say so. Thus, we find un-

convincing the separation of powers argument invoked

by the Solomon court to reject executive branch enforce-

ment of federal law.®

In this case, however, we need not decide whether

absent the Halderman action the United States could in-

dependently have sued. The suit was already pending.

Moreover, in its constitutional dimensions the suit was

expressly authorized by 42 U.S.C. § 1983. We hold that

the initial plaintiffs have standing to enforce federal

statutory claims as well. See p. 22 infra. Thus Congress

has made the decision that someone could seek the

injunctive relief in question. Intervention presented no

danger that the federal executive would initiating [sic] a

lawsuit that Congress somehow never intended. Interven-

tion was sought pursuant to Rule 24, Fed. R. Civ. P. 24,

and there was ample justification for permitting it. Un-

der Rule 24(b) (2), a district court may allow interven-

tion when an applicant’s claim or defense and the main

8 See Gibbons, The Interdependence of Legitimacy: An introduc-

tion to the Meaning of Separation of Powers, 5 Seton Hall L. Rev.

435 (1974).

13a

action have common questions of law or fact. Rule 24 (b)

makes specific provision for intervention by governmental

agencies interested in statutes, regulations, or agree-

ments relied upon by the parties in the action. Here, as

noted below, there is extensive federal legislation di-

rected toward the well-being of the mentally retarded.

Several executive branch agencies, especially the Depart-

ment of Health, Education and Welfare (HEW), have

important responsibilities under that legislation. Large

amounts of federal funds flow to Pennsylvania from the

federal government, and the United States is vitally

interested in the enforcement of the conditions in which

those grants are made. One such condition is com-

pliance with governing federal law. Had the United

States sought to do so, it could have brought suit to

enforce the conditions attached to its grants.® Clearly,

then, the district court did not abuse its discretion in

permitting intervention under Rule 24.

Ill. FACTUAL FINDINGS

Neither the Commonwealth nor the County defend-

ants take serious issue with the court’s findings of fact

respecting the abominable conditions to which Penn-

hurst residents have been subjected. They do con-

tend, however, that despite those findings there was no

legal basis for the grant of any injunctive relief, and,

alternatively, that the. scope of the relief ordered was

broader than was warranted by the facts or the law.

At the time of trial Pennhurst housed 1230 mentally

retarded individuals, some of whom also suffered from

physical disabilities. The residents are not mentally ill,

have broken no laws, and are not a danger to others, al-

though, in severe cases, some are unable to care for

themselves. Mental retardation is an impairment in

® See United States v. Solomon, 563 F.2d at 1129 (Butzner J.,

concurring), and cases cited.

l4a

learning capacity and adaptive behavior, and is not treat-

able, like mental illness, by means of drugs or psycho-

therapy. While the mentally retarded do suffer educa-

tional difficulties, the level of their functioning can be

improved by individualized training.

Residents come to Pennhurst either because of a com-

mitment order from a state court, or by a “voluntary”

admission initiated by a parent or guardian. In either

ease, the admission is arranged through Base Service

Units, operated by the County defendants pursuant to

the Pennsylvania Mental Health and Mental Retardation

Act.’° The Base Service Units are responsible for evalu-

ating the needs of retarded individuals and determining

the appropriate habilitative services.

In addition to large residential institutions like Penn-

hurst, Pennsylvania operates smaller and less isolated

programs referred to as Community Living Arrange-

ments (CLAs). The latter programs reflect a recog-

nition of the principles of normalization for the habili-

tation of the retarded.*' Under normalization principles,

retarded persons are treated as much as possible like

nonretarded persons. The purpose of such treatment is

remediation of the delayed learning process so as to de-

velop maximum potential in self-help, language, per-

10 Pa. Stat. Ann. tit. 50 § 4301(d)(9) (Purdon 1969), states in

relevant part: °

(d) ... it shall be the duty of local authorities in coopera-

tion with the department [of Public Welfare] to insure that

the following mental health and mental retardation services are

available:

*% * *

(9) Unified procedures for intake for all county services

and a central place providing referral services and information.

11 For a description of the normalization principle in the care

of the mentally retarded, see B. Nirje, The Normalization Princi-

pic, Changing Patterns in Residential Services for the Mentally

ee President’s Committee on Mental Retardation, 231 (Rev.

ed. 1976).

15a

sonal, social, educational, vocational and recreational

skills. These remediation efforts, the trial court found,

are, in general, much more likely to succeed in smaller

living units which are closer to and more reflective of the

normal society. In large separate isolated institutions

like Pennhurst, however, the retarded generally suffer

apathy, stunted growth, and even regression in the skills

referred to. The effective result is the imposition or

facilitation of increased retardation. Such large institu-

tions, the court also determined, are more expensive to

operate than community based alternatives. Perhaps for

those and other reasons it had been the current intention

of the Department of Public Welfare to transfer resi-

dents from Pennhurst to community residential facilities,

supported by specialized services, by some time in the

early 1980’s. In the five county area, 530 retarded

persons already live in CLAs, including 186 former Penn-

hurst residents.

The district court also found that the environment at

Pennhurst is not merely inconsistent with normaliza-

tion principles, but is actually hazardous to residents.

Because of the inadequacies in programming attribut-

able to staff shortages, residents were found to have

lost skills already learned. Organized programs of appro-

priate education and training were found to be inad-

equate or unavailable. Evaluations of resident progress

do not meet minimum professional standards, and re-

cord keeping is inadequate.

Moreover, the Pennhurst environment was found to

be unsanitary. There is often urine and excrement on

the ward floors. Infectious diseases are common. Obnox-

ious odors and excessive noise permeate the institution.

Most toilet areas do not have towels, soap or toilet paper.

Injuries to residents by other residents or through self-

abuse are common. Serious injuries inflicted by staff

members, including sexual assaults, have occurred. Phys-

ical restraints, which may be physically harmful and

16a

which have caused injuries and at least one death, are

resorted to more frequently than appropriate because

of shortages of staff. Dangerous psychotropic drugs are

used for purposes of behavior control and staff con-

venience rather than for legitimate treatment needs.

Such drug misuse produces lethargy, hypersensitivity to

sunlight, inability to maintain gait, and other disabilities.

Seclusion in solitary confinement has been used to pun-

ish aggressive behavior which might not have occurred

if a proper regimen of training were available. Diet

control is not possible because residents dine in large

group eating areas without adequate staff supervision.

The federal government is a substantial partner in

the Commonwealth’s and Counties’ provision of services

generally available, although not always provided, to the

mentally retarded. The Commonwealth Department of

Welfare receives federal grants under both the Devel-

opmentally Disabled Assistance and Bill of Rights Act,

42 U.S.C. §§ 6001-6081 (1976), and the Education for

All Handicapped Children Act of 1975, 20 U\S.C.

§§ 1401-1461 (1976). The Commonwealth, in turn,

makes funds available to the Counties for purposes of

developing and maintaining their CLAs. Thus it is clear

that there are county based programs open and available

to the mentally retarded which receive federal financial

assistance. The-trial court found that the Counties have

made an insufficient effort to provide community based

services to the retarded.’* The population of Pennhurst

12 The trial court found that because the Commonwealth has

chosen to pay all of Pennhurst’s costs not federally funded, while

requiring the Counties to pay 10% of the cost of some community

based services, the Counties have a financial incentive to send re-

tarded residents to Pennhurst rather than attempting habilitation

within the community, 446 F. Supp. at 1312. See Record, Vol. 30,

at 12.23 (testimony of Ms. E. A. Ballard). The County defendants

urge that the finding that they have such a financial incentive is

clearly erroneous. We need not resolve that question, since the basis

on which we decide the legal issues is not dependent upon the

motive of the Counties.

17a

has thus remained high, effectively precluding the resi-

dents from taking advantage not only of federally funded

programs expressly intended for the care of the retarded,

but also of various other federally funded facilities such

as education and transportation.

The court held that the isolation at Pennhurst is

attributable, across the board, to state action. It found

that about half of the Pennhurst residents had been

committed there by order of a Pennsylvania court, while

the other half had been admitted upon application of a

parent or guardian. Although the latter group of resi-

dents are referred to in some of the briefs as voluntary

admittees, theoretically free to leave when of age, the

court found that when a resident wishes to leave and the

Pennhurst staff determines that there is no place for him

in the community, or that he is not ready for community

living, a pet*tion for involuntary commitment is made.

The court found, moreover, that many residents do not

understand the available alternatives in institutionali-

zation, or are physically unable to express an interest

in leaving, or have no adequate alternative living ar-

rangement. Thus the notion of voluntariness in admis-

sion and retention was found to be illusory.

IV. PREFERRED LEGAL BASES FOR RELIEF

Appellants, as we noted above, do not quarrel with

the facts; they dispute only the legal significance of

those facts. They reject both the court’s conclusion that

the mentally retarded have a legal right to treatment or

habilitation and its conclusion that treatment or habilita-

tion must be provided in the least restrictive environ-

ment. Moreover, even assuming that these rights exist,

appellants challenge the court’s injunctive order as over-

broad. We consider in turn each of these objections.

The district court’s determination that appellees have

a right to treatment was predicated upon constitutional,

18a

federal and state statutory grounds. The federal courts

have long been directed to decide whether causes of ac-

tion can be supported on statutory grounds before they

adjudicate constitutional law issues."

Moreover, while federal courts can interpret federal

legislation definitively, subject only to Supreme Court

review, their interpretation of a state statute arguably

supporting the judgment might be rejected by the state’s

courts. The preferred order, therefore, is to turn first

to the federal statutory issues. Thereafter, we will con-

sider state statutory grounds for the trial court’s decision.

V. THE RIGHT TO TREATMENT OR

HABILITATION *

A. Federal Statutory Law

In their second amended complaint, appellees asserted

a cause of action under the Developmentally Disabled

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

89 Stat. 486, codified at 42 U.S.C. §§ 6001-6081 (1976)

[hereinafter “the Act’’]. The trial court did not reach

the question of defendants’ possible liability under this

statute. The parties have nevertheless supplied this court

with detailed briefing on the statute. We are persuaded

that the Act provides the mentally retarded with a right

to treatment.

13 Hagans v. Lavine, 415 U.S. 528, 543 (1974); Siler v. Louis-

ville & Nashville R.R. Co., 2138 U.S. 175, 193 (1909).

14 Throughout this section the terms “treatment” and “habilita-

tion” will be used interchangeably. Strictly speaking, since mental

retardation is not a curable disability, the term “treatment” is in-

appropriate. Rather, “habilitation,” which refers to “that education,

training and care required by retarded individuals to reach their

maximum development,” 446 F. Supp. at 1298, is the more appro-

priate term. Nevertheless, because the relevant statutory and con-

stitutional sources typically apply both to the mentally ill—who can

be treated—and to the mentally retarded, who can only be educated,

trained and cared for, we will employ both words interchangeably.

19a

The Act was passed in 1975 as an amendment to the

Developmental Disabilities Services and Facilities Con-

struction Act. It established particular rights and ben-

efits for the developmentally disabled, a class of persons

which included the mentally retarded. 42 U.S.C. § 6001

(7) (A) (i). Among those was a right to the least re-

- gtrictive environment, about which we will have more to

say in Section VI A below. In addition, however, the

Act expressly provided that the developmentally disabled

have a right to treatment or habilitation. In the so-called

Bill of Rights section, 42 U.S.C. § 6010, Congress made

plain its intention to establish a right to treatment.’

15§ 6010. Congressional findings respecting rights of develop-

mentally disabled.

Congress makes the following findings respecting the rights of

persons with developmental disabilities:

(1) Persons with developmental disabilities have a right to

appropritae treatment, services, and habilitation for such

disabilities.

(2) The treatment, services, and habilitation for a person

with developmental disabilities should be designed to maxi-

mize the developmental potential of the person and should be

provided in the setting that is least restrictive of the person’s

personal liberty.

(3) The Federal Government and the States both have an

obligation to assure that public funds are not provided to any

institutional or other residential program for persons with

developmental disabilities that—

(A) does not provide treatment, services, and habilita-

tion which is appropriate to the needs of such persons; or

(B) does not meet the following minimum standards:

(i) Provision of a nourishing, well-balanced daily

diet to the persons with developmental disabilities be-

ing served by the program.

(ii) Provision to such persons of appropriate and

sufficient medical and dental services.

(iii) Prohibition of the use of physical restraint on

such persons unless absolutely necessary and prohibi-

tion of the use of such restraint as a punishment or as

a substitute for a habilitation program.

(iv) Prohibition on the excessive use of chemical

restraints on such persons and the use of such re-

20a

Congress found that “[p]lersons with developmental dis-

abilities have a right to appropriate treatment, services,

and habilitation for such disabilities.” 42 U.S.C. § 6010

(1). Moreover, both “[t]he Federal Government and

the States .. . have an obligation to assure that public

funds are not provided to any institutional or other

residential program for persons with developmental dis-

abilities that—(A) does not provide treatment, services,

and habilitation which is appropriate to the needs of such

persons...” 42 U.S.C. § 6010(3) (A). It is hard to

see how Congress could have been any more precise

straints as punishment or as a substitute for a habili-

tation program or in quantities that interfere with

services, treatment, or habilitation for such persons.

(v) Permission for close relatives of such persons

to visit them at reasonable hours without prior notice.

(vi) Compliance with adequate fire and safety

standards as may be promulgated by the Secretary.

(4) All programs for persons with developmental disabili-

ties should meet standards which are designed to assure the

most favorable possible outcome for those served, and—

(A) in the case of residential programs serving persons

in need of comprehensive health-related, habilitative, or

rehabilitative services, which are at least equivalent to

those standards applicable to intermediate care facilities

for the mentally retarded promulgated in regulations of the

Secretary on January 17, 1974 (39 Fed. Reg. pt. II), as

appropriate when taking into account the size of the in-

stitutions and the service delivery arrangements of the

facilities of the programs;

(B) in the case of other residential programs for per-

sons with developmental disabilities, which assure that

care is appropriate to the needs of the persons being served

by such programs, assure that the persons admitted to

facilities of such programs are persons whose needs can be

met through services provided by such facilities, and

assure that the facilities under such programs provide for

the humane care of the residents of the facilities, are sani-

tary, and protect their rights; and

(C) in the case of nonresidential programs, which

assure the care provided by such programs is appropriate

to the persons served by the programs.

2la

in revealing its intention to confer a right to treatment

or habilitation.

Another section of the Act reaffirms the right to

treatment. Section 6063 provides that any state which

wishes to take advantage of the subchapter must submit

a plan to the Secretary of HEW. That plan must con-

tain a program designed, inter alia, “to improve the

quality of care and the state of surroundings of persons

for whom institutional care is appropriate .. .” 42

U.S.C. § 6063(b) (20) (B). While this section was de-

leted in the 1978 revision of the Act, it did apply until

that date and retains legal significance for purposes of

this litigation. Moreover, the revised statute contains a

section requiring states to conform their plans to the

dictates of the Bill of Rights provision, section 6010.

See 42 U.S.C. § 6063(b) (5) (C) (Supp. 1979).

The legislative history of Pub. L. No. 94-103 also

supports the recognition of a statutory right to treat-

ment for the mentally retarded. Congressman Carter, in

introducing H.R. 4005 (later enacted as Pub. L. No.

94-103) in the House, stated that among its many pur-

poses “‘[t]his legislation . . . directs that States should

devote attention to improving the facilities and sur-

roundings of institutions where people have been appro-

priately institutionalized.” 121 Cong. Rec. 9976 (1975).

The bill was introduced in the Senate as S. 462. 121

Cong. Rec. 16,470. Senator Stafford, discussing the pur-

pose of Title II—the Bill of Rights—stated “Title II was

added to the bill to assist in the protection of the rights

guaranteed under our Constitution for those individuals

that will require institutionalization ...” Zd. at 16,516.

Senator Javits added that “Congress should reaffirm its

belief in equal rights for all citizens—including the de-

velopmentally disabled. Congress should provide the lead-

ership to change the tragic warehousing of human be-

ings that has been the product of insensitive Federal

224

support of facilities providing inhumane care and treat-

ment of the mentally retarded.” Jd. at 16,519. Senator

Cranston observed that while the bill endorsed dein-

stitutionalization, it ‘“‘recognize[d] that the need for some

long-term residential programs will remain. The bill

specifically provides that where institutional programs

are appropriate, adequate support should be planned for

them so that necessary treatment and habilitation pro-

grams can be given residential patients to develop their

full potential.” Jd. at 16,520. Senator Schweiker de-

scribed one of the requirements of the proposed legis-

lative Bill of Rights as “[h]umane care, treatment, re-

habilitation, and protection in residential facilities . . .”

Id. at 16,522.

The bill went to conference, in part because the Sen-

ante bill contained an expanded version of Title IJ—

specifying in great detail the standards for appropriate

care—with which the House did not concur. The Con-

ference Committee compromised on details, and produced

the more general, yet equally forceful Bill of Rights

provisions, now codified in section 6010. A right to

treatment was, as we noted above, specifically proclaimed.

Thus, the Conference Report for the bill states that

“the developmentally disabled have a right to appro-

priate treatment, services and habilitation .. .” H.R.

Conf. Rep. No. 94-473, 94th Cong., 1st Sess. 42 (1975) ;

U.S. Code Cong. & Ad. News 9438, 961. In addition, Sen-

ators Javits, Schweiker and Williams, in approving the

Conference Report, all called attention to the critical

role of the right to treatment. 121 Cong. Rec. 29,820-21.

We therefore hold that the Developmentally Disabled

Assistance and Bill of Rights Act grants to the mentally

retarded a right to treatment and habilitation.

We further hold that retarded persons have a private

right of action under the Act. To date, only one other

court has considered whether private litigants may en-

23a

force the rights granted under the Act. In Naughton v.

Bevilacqua, 458 F. Supp. 610 (D.R.I. 1978), Judge Pet-

tine concluded that there was a private right of action.

Plaintiffs in Naughton were a mentally retarded, schizo-

phrenic patient and his father. They brought suit for

injunctive relief and damages, alleging that the child

had sustained injuries as a result of drugs administered

to him in a Rhode Island institution. Among their sev-

eral causes of action, plaintiffs asserted a claim under 42

U.S.C. §§ 6001-6081.

The court, reviewing the statute, concluded that it in-

tended to convey a private right of action. Judge Pet-

tine offered several arguments supporting his view of

Congressional intent. First, he noted, section 6010, the

Bill of Rights provision, has two sections: the first “de-

clares the right to appropriate treatment’; the second

“provides that federal funds are available only to pro-

grams that meet certain basic minimum standards and

offer ‘appropriate’ treatment.” 458 F. Supp. at 616.

“This dichotomy in sec. 6010,” the court reasoned, “sug-

gests that denial of funds is not the only mechanism to

enforce the declared statutory rights.” Jd. In addition,

the court noted that the Conference Report expressly

states that “ ‘this right [to receive appropriate treat-

ment] should be protected and assured by the Congress

and the court.’” Jd. (quoting [1975] U.S. Code Cong.

& Ad. News 961). Furthermore, participating states

are required under the Act “to establish an independent

agency ‘to protect and advocate the rights of persons

with developmental disabilities, and . . . to pursue legal,

administrative, and other appropriate remedies to insure ,

the protection of the rights of such persons who are re-

ceiving treatment, services or habilitation within the

State... .’” Id. (quoting 42 U.S.C. §6012(a)). As

the court observed, “[t]he enforcement of individual

rights . . . cannot be achieved solely by withholding fed-

24a

eral funds; not only is the Secretary incapable of in-

vestigating every violation, but the Secretary may quite

properly be unwilling to withhold funds for a single

violation. Thus, the advocacy agency and a private right

of action are crucial to protect the rights secured by the

Act.” Id. Finding that the developmentally disabled

were the “especial benefi[ciaries]” of the Act, that pri-

vate suits would effectuate the policies of the statute,

and that they would not infringe traditional state pre-

rogatives, the Naughton court concluded that there was

a private right of action under 42 U.S.C. §§ 6001-6081.

We find the Naughton court’s analysis persuasive. A

private right of action eminently satisfies the standards

articulated in Cort v. Ash, 422 U.S. 66, 78 (1975).’°

As developmentally disabled persons, the mentally re-

tarded undoubtedly qualify as “especial benefi[ciaries]”

of the section 6010 grant of a right to treatment. In

addition, the Conference Report recognized the desir-

ability of enforcement of the Act, in part, by the courts.

Moreover, a private right of action would surely further

the purposes of the Act. By permitting private suits,

courts would facilitate improvements in the delivery of

services to the disabled without forcing the federal gov-

16 Cort v. Ash set forth four relevant factors to be considered in

determining whether a private remedy is implicit in a statute:

whether the plaintiffs are especial beneficiaries of the statute,

whether there is any indication of legislative intent to create a pri-

vate remedy, whether a private remedy would further the policies of

the statute, and finally whether the cause of action is one tradition-

ally relegated to the states. See Cannon v. Univ. of Chicago, 47

U.S.L.W. 4549 (May 14, 1970) (implying private right of action un-

der Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681 (1976), acivil rights statute) ; Note, Implied Rights of Action

to Enforce Civil Rights: The Case for a Sympathetic View, 87 Yale

L.J. 1378 (1978). Cf. Touche Ross & Co. v. Redington, 47 U.S.L.W.

4732 (U.S. June 18, 1979) (refusing to imply private action for

damages under § 17(a) of the Securities and Exchange Act of 1934,

clearly not a civil rights statute).

25a

ernment to resort to the drastic remedy of a cut-off of

funds.

It may be argued, however, that while the first three

Cort v. Ash criteria are satisfied, the implication of a

private right of action would infringe basic state pre-

rogatives, and transgress the bounds of federal lawmak-

ing competence, inasmuch as mental health policies have

always been within the states’ traditional police power

authority. We are unpersuaded by that argument. While

providing for the health and well-being of the citizenry

is surely a legitimate state function, Congress’s recogni-

tion of a right to treatment in section 6010 is not a

simple displacement of that admitedly basic state concern.

In Ingraham v. Wright, 480 U.S. 651, 673 (1977),

the Supreme Court said that among the liberties pro-

tected by the fourteenth amendment is “a right to be

free from and to obtain judicial relief for unjustified

intrusions on personal security.”’ Section 5 of the four-

teenth amendment vests Congress with authority “to en-

force by appropriate legislation, the provisions of this

article.” In Section 6010, Congress has legislated with

respect to the state intrusions on personal security of the

developmentally disabled.'* Thus, in providing specific

guarantees for a particular affected group, Congress’

action is consistent with the Supreme Court’s recognition

17 That Congress intended in §§ 6001-6081 to enforce recognized

constitutional rights is amply borne out by the legislative history

of the Act. See 121 Cong. Rec. 16,516 (1975) (remarks of Sen.

Stafford). Moreover, Senator Javits, speaking in support of the

measure, cited Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala.

1972) ; 344 F. Supp. 373 (M.D. Ala. 1972), enforcing, 325 F. Supp.

781 (M.D. Ala. 1971), affirmed in relevant part, remanded in part,

and decision reserved in part, Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974) (Constitution guarantees persons civilly committed

to state mental institutions a right to treatment and granting relief

does not invade exclusive province of state legislature), as an articu-

lation of “‘constitutionally required minimum standards for the care

and treatment of mentally retarded patients.” Jd. at 16,519.

26a

of the broad underlying right protected against impair-

ment by the state through the fourteenth amendment.

Section 6010 does not go beyond what has been judicially

declared to be the limits of the fourteenth amendment

but clearly is within those bounds.'* Since the rights de-

scribed in section 6010 are specified pursuant to section

5 of the fourteenth amendment, implication of a private

cause of action from that statute rests upon the same

constitutional footing. Thus we are not dealing with the

implication of a private cause of action from a congres-

sional enactment justified only by the spending power of

the federal government, and we need not address the

question whether such a statute could ever provide the

predicate for private substantive rights. As the Supreme

Court acknowledged in another context, Congress may,

under section 5, establish certain restrictions that might

otherwise implicate the prerogatives of the states.’®

We also note that any suggestion that private en-

forcement of the Act usurps basic State concerns, is

vitiated by the structure of the Act itself. For example,

section 6063(b) (20) (B), which until 1978 required

states to produce a plan providing for improved quality

of care, was applicable to all those states “desiring to

take advantage of this subchapter.” 42 U.S.C. § 6063(a).

Congress thus invoked its spending clause powers to con-

dition the grant of federal monies on the provision by the

states of adequate care. Pennsylvania has accepted fed-

——

18Cf. Oregon v. Mitchell, 400 U.S. 112 (1970); Katzenbach v.

Morgan, 384 U.S. 641, 658 (1966) (§ 4(e) of Voting Rights Act of

1965 is proper exercise of congressional powers under § 5 of four-

teenth amendment). See generally Cox, Foreword: Constitutional

Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev.

91 (1966).

19 See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Usery v.

Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir. 1976),

cert. denied, 430 U.S. 946 (1977) ; cf. National League of Cities v.

Usery, 426 U.S. 833 (1976).

27a

eral funds provided pursuant to the Act.?° Whatever ar-

gument it might otherwise have had were it faced with

an unexpected set of federal obligations is refuted by its

obvious willingness to accept the benefits of the Act.”

20 See Commw. of Pa., Governor’s Executive Budget 1979-80 at

638. We need not decide whether the obligations of § 6010 apply

even to those states which do not ace >t federal funds under the

Act. As to those states, this spending clause analysis would not ap-

ply. For the reasons elaborated at p. 25, supra, and p. 27 n.21 infra,

we doubt that the concerns for state autonomy—indicated in Na-

tional League of Cities—would prevail over a congressional an-

nouncement of fourteenth amendment policy. But we need not

address that issue here. It is sufficient for our purposes to note that

Pennsylvania has accepted federal funds and has thus consented to

federally mandated standards for the treatment and habilitation of

the developmentally disabled.

21 Cf. Developments in the Law—Zoning, 91 Harv. L. Rev. 1427,

1617 (1978) (“nothing in National League of Cities or in related

principles of federalism would prevent Congress from using the

spending power to require that states receiving federal funds for

the development and administration of land use programs abide by

federal specifications”). For these same reasons we would reject,

were it made, any contention that §§ 6001-6081 are unconstitu-

tional under National League of Cities. Fitzpatrick v. Bitzer, 427

U.S. 445 (1976), recognizes that National League of Cities is inap-

plicable to legislation promulgated pursuant to § 5 of the fourteenth

amendment. 427 U.S. at 453-56. This court reached the same

conclusion with respect to the Equal Pay Act. Usery v. Allegheny

County Inst. Dist., 544 F.2d 148 (3d Cir. 1976) cert. denied, 430

U.S. 946 (1977). Moreover, we note that the Supreme Court itself

has chosen to read the state reserved powers language in National

League of Cities narrowly. In City of Lafayette v. Louisiana Power

& Light Co., 435 U.S. 389 (1978), the Court held that cities and

subdivisions of a state that engage in anticompetitive practices with-

out authorization are subject to federal antitrust liability. The

Lafayette Court paid scant attention to National League of Cities,

thus suggesting that even under the commerce clause federal stat-

utes may be enforced against the states. See 435 U.S. at 423-24

(Burger, C.J., concurring in Part I of the opinion and in the judg-

ment) (“[t]he National League of Cities opinion focused its deline-

ation of the ‘attributes of sovereignty’. . . on a determination as to

whether the State’s interest involved ‘ “functions essential to sepa-

rate and independent existence.” ’. . . It should be evident, I would

think, that the running of a business enterprise is not an integral

operation in the area of traditional government functions.”). (Quot-

28a

Finally, we have recently decided that a private right

of action exists for the enforcement of section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976)—

another statute designed to improve the lives of handi-

capped persons. National Association for the Advance-

ment of Colored People v. The Medical Center, Inc., 599

F.2d 1247, 1258-59 (3d Cir. 1979).2* We did not feel,

in that case, that the traditional police power duties of

the states foreclosed a private right of action. In view

of these considerations, then, we hold that appellees have

standing to sue to enforce the Bill of Rights provisions of

the Act.

One court, we note, has held that claims under the

Act must be brought in state court. United States v.

Solomon, 563 F.2d at 1125. The Solomon court acknowl-

edged that the Conference Report on the Act stated that

the right to treatment “should be protected and assured

ing National League of Cities v. Usery, 426 U.S. at 845, quoting

Coyle v. Oklahoma, 221 U.S. 559, 580 (1911)).

The author of this opinion notes that even assuming, arguendo,

that the provision of habilitation is within the sphere of the states’

autonomy, that does not end the matter; “[t]o determine whether

the federal action is unconstitutional requires a balancing of the

federal interests, on the one hand, against the degree of federal

intrusion upon state autonomy on the other.” Developments in the

Law—Zoning, 91 Harv. L. Rev. 1427, 1613 n.159 (1978). See Na-

tional League of Cities, 426 U.S. at 852-53 (distinguishing Fry v.

United States, 421 U.S. 542 (1975), which upheld a temporary

freeze on wages of state and municipal employees, in part on the

ground that “[t]he enactment at issue there was occasioned by an

extremely serious problem. .. .”); id. at 856 (Blackmun, J.,

concurring). Here, Congress has found that certain rights must be

recognized in order that disabled persons realize their basic con-

stitutional liberties. The balance, in my view, plainly favors the

legislation.

22In Southeastern Community College v. Davis, 47 U.S.L.W.

4689, 4691 n.5 (June 11, 1979), the Supreme Court expressly

avoided deciding whether there exists a private right of action

under section 504. The Court went on, however, to reach the merits

of the plaintiff’s cause of action.

29a

by the Congress and the courts.” 563 F.2d at 1124. It

held, however, that this language “manifestly refers to a

state judicial forum and not to a federal judicial forum

where the United States customarily sues.” Jd. at 1125.

With deference to the Fourth Circuit, we see nothing

manifest in the Conference Report supporting that

court’s interpretation. If anything, the legisiative history

reflects a Congressional belief that States were not

spending funds for the disabled effectively. The Devel-

opmentally Disabled Assistance and Bill of Rights Act

sought to change the traditional spending habits of the

states. It is most unlikely that Congress intended those

changes to be enforceable only in state courts.** We

would find it quite anomolous in the absence of a clear

congressional expression to hold that a federal statute

created a cause of action arising under federal law, but

enforceable only in the state courts and not under 28

U.S.C. § 18381 (1976).

Accordingly, we hold that appellees have a federal

statutory vight to habilitation, that they may sue to en-

force that right, and that such suit is properly lodged in

federal court.

3. State Law ‘

As an alternative ground for a right to adequate

habilitation, appellees point to sections 101-704 of Penn-

sylvania’s Mental Health and Mental Retardation Act of

1966 [hereinafter MH/MR Act of 1966], Pa. Stat. Anr.

tit. 50, $$ 4101-4704 (Purdon 1969). The trial court ac-

cepted this contention, relying principally upon section

201 of the Act. That section, which establishes the re-

23 In Part II, p. 18 supra, we rejected the Solomon court’s posi-

tion that the United States was precluded from judicial enforce-

ment of the Developmentally Disabled Assistance and Bill of Rights

Act.

30a

sponsibilities of the Department of Public Welfare, pro-

vides in pertinent part:

The department shall have power, and its duty shall

be:

(1) To assure within the State the availability

and equitable provision of adequate menta! health

and menta! retardation services for all persons who

need them...

Pa. Stat. Ann. tit. 50, § 4201. The court held that this

section grants retarded persons an affirmative right to

minimally adequate habilitation. 446 F. Supp. at 1322.

Moreover, it noted, the County defendants share in this

statutory duty to supply adequate treatment. Jd. at

1322-23.

Section 201 refers to the State’s “duty” to “assure”

the “availability . . . of adequate mental health and men-

tal retardation services for all persons who need them

...” Pa. Stat. Ann. tit. 50, § 4201(1). That language is

broad and determined: The obligation to provide services

to the mentally handicapped on the basis of need [sic].

Had the Commonwealth intended to offer only confinement

without more, it would hardly have spoken in terms of

“adequate .. . services.” Id.

Our reading of the statutory language is amply sup-

ported by the legislative history of the MH/MR Act of

1966. Speaking on behalf of the Act in the Pennsylvania

Senate, Senator Pechan elaborated its fundamental habi-

litative purposes.

The object of this legislation is to make it possi-

ble for every mentally disabled person to receive the

kind of treatment he needs, when and where he

needs it. It will make those services available to

every citizen in every community which are now

available only to a lucky few, in the more progres-

3la

sive communities. It will open more beds in the

local general hospitals. It will make available the

services of psychiatrists and psychologists, of psy-

chiatric nurses and social workers, of specially

trained occupational therapists, of speech and hear-

ing therapists, of activities directors and of child

care workers. It will supplement the benefits of

therapy with daytime and evening programs of

activity which will call back to reality the erring

mind, which will re-create and strengthen the ties

which bind one human being to another and make

us comfortable in each others’ company. It will pro-

vide productive activity for those who can work

only in a sheltered situation, and for those who are

able, it will prepare them to go back to the cus-

tomary world of business and industry, or to go

forth into it for the first time, as the case may be.

For those in acute distress, service will be avail-

able twenty-four hours a day, and the violent will

find protective care instead of the harsh custody of

jail.

1966 Pa. Legis. J., 3d Spec. Sess. No. 33, 76 (Sept. 27,

1966). The Act, Senator Pechan declared “will [make] it

... easy for a mentally disabled person to find the treat-

ment he needs .. .” /d. Senator Sesler concurred, id. at

77, and added:

Id.

When you realize that practically one out of ten

of every Pennsylvanian has some problem in mental

health, you will realize how vast the scope of this

problem is. However, I think, we now have

sketched in broad, general terms the framework of

a program which can provide a continuum of

services—out-patient, in-patient, diagnostic treat-

ment, evaluation and research, a _ procedure of

commitment under almost all conceivable types of

circumstances.

32a

Those few courts which have previously considered

the MH/MR Act of 1966 have also gleaned from it a

right to treatment for the mentally handicapped. In in

re Joyce Z., 123 Pitt. L. J. 181 (1975), the Common

Pleas Court for Allegheny County held that a profoundly

retarded child had, under section 201 of the Act, a right

to treatment. 123 Pitt. L. J. at 187. The court quoted the

relevant language of section 201 and declared, “These

are brave words. We mean to see that the State, acting

through the Department of Public Welfare, abides by

them.” Jd. In view of the statutory right to treatment,

the court held that Pennsylvania was obliged to provide

casework services to the child, her parents, and her fos-

ter parents, together with financial assistance to meet

the child’s physical needs. Jd. at 190. Joyce Z. estab-

lishes, as well, that the statutory right to treatment is un-

der Pennsylvania law judicially enforceable in a private

action.

To like effect was Chief Judge Lord’s decision in Eu-

banks v. Clarke, 434 F. Supp. 1022 (E.D. Pa. 1977).

There, relying in part on section 201 of the MH/MR

Act of 1966, Judge Lord held that the plaintiff, an in-

voluntarily committed schizophrenic, had a “state law

right to treatment or release.” 434 F. Supp. at 1027.

Similarly, in Hoolick v. Retreat State Hospital, 24 Pa.

Commw. Ct. 218, 354 A.2d 609 (1976), aff'd 476 Pa.

317, 382 A.2d 739 (1978), a Pennsylvania court de-

scribed the MH/MR Act of 1966 as envisioning a “com-

prehensive program for the care, treatment and rehabili-

tation of mentally disabled and mentally retarded per-

sons...” 24 Pa. Commw. Ct. at 220, 354 A.2d at 611.4

24 See County of Allegheny v. Commw. Dept. of Pub. Welfare,

33 Pa. Commw. Ct. 267, 269, 381 A.2d 1014, 1016 (1978) (squaring

its own holding with the mandate of Joyce Z. and Hoolick which, in

the court’s view, required the availability of adequate mental re-

tardation facilities). Cf. Doe v. Colautti, 592 F.2d 704, 711-12 (3d

33a

Despite the apparent meaning of section 201, and the

plain intentions of the state legislature,?> several of the

appellants object to the trial court’s reliance on the MH/

MR Act of 1966. The Commonwealth and the Counties

contend that section 509(5) of the Act belies any duty

on their part to provide treatment. Section 509(5) em-

powers the Department of Public Welfare to distribute

grant monies to the Counties where sufficient funds have

not been appropriated by the State.

In the event that sufficient funds to pay the full

amount of the grants to which the counties may be

entitled under the provisions of this section have

not been appropriated, to distribute State funds

among the counties by a formula reasonably de-

signed to achieve the objectives of this act, provided

however, that in such event the counties’ financial

obligations under this act shall be reduced in ac-

cordance with the same formula and the counties

shall be required to provide only those services for

which sufficient funds are available.

Cir. 1979) (citing the MH/MR Act of 1966, and Pennsylvania’s “al-

location of an extraordinary large portion of its budget to the treat-

ment of the mentally ill,” as reasons to eschew creating new suspect

classification for protection of mentally handicapped).

25 While not expressly covering persons who are mentally re-

tarded but not mentally ill, Pennsylvania’s Mental Health Proce-

dures Act, Pa. Stat. Ann. tit. 50, §§ 7101-7503 (Purdon) (Supp.

1979) promulgated in 1976, also refiects the state’s recognition of a

need for treatment. Section 102 of the Act provides, in pertinent

part:

§ 7102. Statement of policy

It is the policy of the Commonwealth of Pennsylvania to

seek to assure the availability of adequate treatment to persons

who are mentally ill, and it is the purpose of this act to estab-

lish procedures whereby this policy can be effected. . . . Treat-

ment on a voluntary basis shall be preferred to involuntary

treatment; and in every case, the least restrictions consistent

with adequate treatment shall be employed.

Pa. Stat. Ann. tit. 50, § 7102.

34a

Pa. Stat. Ann. tit. 50, § 4509(5). The Commonwealth

contends that since services to the retarded can be re-

duced in light of insufficient funding, there cannot be

“an unconditional right to those services.” Brief for

Commonwealth Appellants at 31. The Counties, on the

other hand, rely on this section in making their argu-

ment that any duty to provide treatment rests solely

on the state, and not them. Brief for Suburban County

Appellants at 24-25.

We reject these contentions. Section 509(5) hardly

relieves the Commonwealth of its statutory duties under

section 201. Section 509(5) delineates nothing more

than the method by which insufficient funds are to be

distributed. It states the apparent truism that where the

state has failed to provide Counties with full funding,

the Counties need not supply a constant level of services.

This may, to be sure, imply that the right to treatment

is not “unconditional.” But no right is without some

limitations. All that section 201 promises, and all that

we hold, is that to the extent Pennsylvania maintains

facilities for the mentally handicapped, those facilities

must provide adequate treatment or habilitation.

Nor do we agree with the Counties that section 509 (5)

absolves them of any duty to provide treatment. The

MH/MR Act of 1966 contemplated a joint venture be-

tween the Commonwealth and its subdivisions, the Coun-

ties, in the provision of services to the mentally handi-

capped. As Senator Sesler stated, in supporting the Act:

We want to make it clear, for the record, that

we are giving this responsibility to our County

Governments, and we are giving them a great deal

of money. One of the amendments just adopted

today has provided that the State will have to re-

imburse the counties for ninety per cent of the cost

of the program. We are giving them a certain de-

gree of freedom. However, we must remind them

35a

that the counties had a program of control for tak-

ing care of the mentally ill, prior to 1937, when

they failed to do an adequate job. It may be that

they lacked the finances at that time, and that they

lacked the public’s support. However, today, I think

that the public’s support is there. I trust that the

Commonwealth will be there with the adequate fi-

nances.

I hope that we can focus attention on the local

level, because if there was ever an example of a co-

operative effort, which involves so many citizens

and private groups as this legislation, I do not know

what it is. We are going to give it control down on

the local level; we are giving it a flexible degree of

control. So, I am saying today—at least, I, speaking

for myself—that we are charging County Govern-

ments with this tremendous responsibility. We hope

that they will take these words to heart... .

1966 P. Legis. J., 3d Spec. Sess.—No. 33,77 (Sept. 27,

1966). Section 509(5) in no way undercuts the intended

partnership of the Counties and the Commonwealth.

The Counties contend, however, that while they may

have some responsibilities under the Act to provide ha-

bilitation to the retarded, those responsibilities are ex-

haustively specified in section 301(d), and no other duties

—such as habilitation at institutions or community liv-

ing arrangements—can be imposed upon them.*° We

26 Section 301(d) of the Act provides:

Subject to the provisions of sections 508 and 509(5) it shall

be the duty of local authorities in cooperation with the depart-

ment to insure that the following mental health and mental re-

tardation services are available:

(1) Short term inpatient services other than those provided

by the State.

[Footnote continued on page 36a]

36a

reject this suggestion. It is true that section 301(d)

sets forth specific duties for the Counties. Nevertheless,

the Counties mandate under the Act is much broader.

Section 301(a), for example, states, in pertinent part:

The local authorities of each county separately

or in concert with another county or counties, as the

secretary may approve, shall establish a county

mental health and mental retardation program for

the prevention of mental disability, and for the di-

agnosis, care, treatment, rehabilitation and deten-

tion of the mentally disabled and shall have power

to make appropriations for such purposes.

Pa. Stat. Ann. tit. 50, § 4301(a). This section directs

that local authorities establish a “mental health and

mental retardation program for the . . . treatment, re-

habilitation and detention of the mentally disabled .. .”

Id. Thus, although section 4301(d) specifies certain

facilities for which the Counties will be principally re-

sponsible, the Act as a whole contemplates County par-

ticipation in all facets of the state’s provision of services.

26 [Continued ]

(2) Outpatient services.

(3) Partial hospitalization services.

(4) Emergency services twenty-four hours per day which

shall be provided by, or available within at least one of the

types of services specified heretofore in this paragraph.

(5) Consultation and education services to professional per-

sonnel and community agencies.

(6) Aftercare services for persons released from State and

County facilities.

(7) Specialized rehabilitative and training services includ-

ing sheltered workshops.

(8) Interim care of mentally retarded persons who have

been removed from their homes and who having been accepted,

are awaiting admission to a State operated facility.

(9) Unified procedures for intake for all county services

and a central place providing referral services and information.

(Footnote omitted) Pa. Stat. Ann. tit. 50, § 4301(d).

37a

Indeed, in the case of Pennhurst itself, the Counties have

joined inextricably in the state’s provision—or lack of

provision—of treatment. As we noted in Part III above,

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 in-

vestigate alternatives to institutional placements, thereby

consigning the mentally retarded to inadequate living

conditions. 446 F. Supp. at 1313. Having thus partici-

pated for so long in the institutional practices at Penn-

hurst, the Counties cannot at this late date escape—by

pointing the finger of responsibility elsewhere—the statu-

tory duty to provide adequate habilitation.

Accordingly, we hold that the appellees have a state

statutory right to habilitation, that they may sue to en-

force that right, and that a federal court has pendent

jurisdiction to enforce that right which was properly

exercised in this instance.

VI. THE RIGHT TO THE LEAST RESTRICTIVE

ENVIRONMENT

Having concluded that appellees have a right to treat-

ment, we turn to a consideration of the setting in which

that treatment must be provided. Plaintiffs contend that

the state is obliged to provide habilitation in an environ-

ment that infringes least on the personal liberties of the

mentally retarded. The trial court agreed, predicating

the decision exclusively upon constitutional grounds. The

court reasoned that because “[a]ll admissions to state

facilities . . . entail an infringement on fundamental

rights and freedom . .. [,] due process demands that if

a state undertakes the habilitation of a retarded person,

it must do so in the least restrictive setting consistent

with that individual habilitative needs.” 446 F. Supp. at

1319. While there is substantial caselaw support for the

trial court’s constitutional position,?” our resolution of

27 See note 38, infra.

38a

the present controversy or statutory grounds obviates the

necessity for consideration of this constitutional issue.

Two federal statutes were relied upon in the district

court as sources of a right to the least restrictive environ-

ment: The Developmentally Disabled Assistance and Bill

of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), discussed

at pp. 18-29 supra, and section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794 (1976).

A. The Developmentally Disabled Assistance and Bill

of Rights Act.

In Part V A above we addressed the origins and de-

velopment of this statute. We noted there that the Act

enunciates a right to treatment for the developmentally

disabled. In addition to that right, however, the Act ex-

presses a clear congressional preference for deinstitu-

tionalization. Section 6010 states plainly that “the treat-

ment, services, and habilitation for a person with devel-

opmental disabilities should be designed to maximize the

developmental potential of the person and should be pro-

vided in the setting that is least resstrictive of the per-

son’s personal liberty.” 42 U.S.C. § 6010(2). State plans

were required, until 1978, to “contain a plan designed

. . . to eliminate inappropriate placement in institutions

of persons with developmental disabilities ...” 42 U.S.C.

§ 6063 (b) (20). Moreover, they were obliged to

support the establishment of community programs

as alternatives to institutionalization and support

such programs which are designed to provide services

for the care and habilitation of persons with devel-

28 As noted above, supra, the trial court did not reach the

question of liability under § 6001 and while it found liability under

§ 504, the court did not rely expressly on that statute in developing

a least restrictive alternative analysis. Since we also do not rely on

§ 504 nor on the Constitution for our holding we have of necessity,

departed somewhat from the trial court’s approach.

39a

opmental disabilities, and which utilize, to the maxi-

mum extent feasible, the resources and personnel in

related community programs to assure full coordina-

tion with such programs and to assure the provision

of appropriate supplemental health, educational, or

social services for persons with developmental dis-

abilities...

42 U.S.C. § 6063(b) (23). Finally, the plans were re-

quired to provide

the maximum utilization of all available community

resources including volunteers serving under the

Domestic Volunteer Service Act of 1973 (Public Law

93-113) and other appropriate voluntary organiza-

tions except that volunteer services shall supplement,

but shall not be in lieu of, services of paid employ-

ees...

42 U.S.C. § 6063 (b) (26).

The legislative history of the Act supports the prefer-

ence for deinstitutionalization. Introducing the bill in

the House Congressman Carter stated:

This bill encourages the States to adopt programs of

deinstitutionalization. We, as a committee, are well

aware that treatment of the developmentally disabled

should be conducted in that person’s community with-

out unnecessarily institutionalizing him. Funds have

been earmarked for this purpose.

121 Cong. Rec. 9976 (1975). Referring to another bill,

Congressman Carter said its

“main thrust ... was to minimize the necessity for

institutionalization. It has come to the attention of

the committee that there needs to be particular a-

tention paid to the same basic problem as it applies

to the developmentally disabled. There seems to be

a tendency in some areas to resort to inpatient treat-

40a

ment when other means of accomplishing the treat-

ment might be possible. Having recognized that this

misuse of facilities has taken place, it is now neces-

sary that we take steps to review and correct the

mistakes already made. The bill [H.R. 4005] re-

quires that States spend a specified percentage of

allotments to tackle the problem and see that those

who have been inappropriately institutionalized be

handled in some other manner.

Id. at 9977. Congressman Biaggi noted that “(t]he bill

. recognizes the trend toward deinstitutionalization

and propose[s] increased appropriations to carry out

demonstration programs which will affect [sic] this goal.”

Id. at 9978. He added that “the cost of home health care

can be... up to five times less expensive than care in

a specialized facility.” Jd.

The House version of the bill passed by a vote of 398-5.

Id. at 9981-82. As noted above, it was introduced in the

Senate as S. 462. Jd. at 16,470. Senator Williams, sup-

porting the bill, described in detail the abuses of institu-

tionalization to which the measure was addressed.

Over the past few years, the horrifying conditions

which exist in most of the public residential institu-

tions for the mentally retarded and other develop-

mentally disabled persons have provided shocking

testimony to the inhuman way we care for such

persons. The conditions at Willowbrook, at Partlow

in Alabama, and at Rosewood in Maryland, and at

many other institutions have shown beyond a shadow

of a doubt that the treatment of these individuals is

worse than [sic] all of us would like to admit.

Steps to scale down many of these large custodial

institutions have resulted in not-so-large institutions,

often with not much improved care and with little

follow-up. This has been true at Willowbrook: in

4la

1965 and again in 1972, broad criticism has been

levied at this institution; all indications point toward

little change, unless substantial legal and advocacy

pressure is forthcoming. While much can be said

about the lack of available funds to-improve condi-

tions at these institutions, at some point this country

must draw the line. The abuses are too common-

place to point at a single institution, or a single

abuse and say that it is an anomaly. Over the last

2 years the Committee on Labor and Public Welfare

has taken testimony or received reports of: Inap-

propriate admissions because of lack of community

services, inappropriate and inhuman experimenta-

tion with residents, sterilizations and other opera-

tions performed for convenience of treatment, starva-

tion and malnutrition, abuse and physical punish-

ment, inadequate food and living conditions, and

death.

S. 462 provides a framework by which the consti-

tutional rights of residents and other persons with

developmental disabilities may be enforced.

Id. at 16,516-17. Senator Kennedy echoed these senti-

ments.

Last year in testimony on this legislation, Geraldo

Rivera showed the committee portions of his docu-

mentary on Willowbrook, and if anyone needed con-

vincing of the need for the establishment of institu-

tional standards, that film provided it. This legisla-

tion provides for the establishment of such standards.

Id. at 16,517. So, too, did Senator Cranston, id. at 16,520

(“I believe one very clear basic goal has been enunciated

in the legislation reported from committee. That is the

need to move away from long-term institutionalization of

individuals with developmental disabilities to the devel-

opment of community-based programs utilizing all com-

42a

munity resources related to treatment or habilitation of

such individuals to provide comprehensive services in the

home community.”); Senator Schweiker, id. at 16,521

(“The last 5 years have seen a dramatic increase in

public awareness of the needs of institutionalized men-

tally retarded and developmentally disabled persons. This

has been highlighted by scandals in many institutions, by

court cases, and by the efforts of the communications

media. Testimony before the committee demonstrated

that standards in institutions for the developmentally

disabled are urgently needed and that the Federal Gov-

ernment should play a major role in improving the care

and services provided to developmentally disabled citi-

zens.”) ; and Senator Beall, id. at 16,522 (“In addition,

I would like to express my support of title II of this bill,

which reflects the increasing concern of Congress and the

public in general about persons who are institutionalized

because they are developmentally disabled. Increased tech-

nological development, especially in regard to travel

speeds, and the sociological stress that many of our citi-

zens are experiencing, particularly in this time of eco-

nomic strain and increased crime, evidence the sad fact

that there will be an increased need for psychological

care. Residential care outside the home is necessary in

some instances, although I am glad to say that increased

emphasis is being placed on similar community-based

facilities rather than the larger State institutions. Title

II assures those individuals who must be institutionalized

of their civil and personal rights, and, at the same time,

provides for the best possible care and services.’’)

The Senate substituted the text of S. 462 for the House

bill, H.R. 4005, and passed it. 7d. at 16,523. A confer-

ence was convened and as noted above, the Senate’s ex-

pansive delineation of the standards for institutional and

community care was dropped and a more general Bill of

Rights (section 6010) was adopted. Nevertheless, the

Congress was serious about the Bill of Rights. The Con-

43a

ference Report noted the difference between the Senate

and House versions of the Act, and explained the result-

ing compromise:

Statement of Purpose

The Senate amendment, but not the House bill,

states the purpose of the bill of rights to be estab-

lishing standards to assure the humane care, treat-

ment, habilitation and protection of mentally re-

tarded and other developmentally disabled individuals

who are served by residential and community facili-

ties and agencies.

The conference substitute contains a compromise

which enumerates Congressional findings respecting

the rights of persons with developmental disabilities.

These include findings that the developmentally dis-

abled have a right to appropriate treatment, services

and habilitation; that such treatment, services and

habilitation should be designed to maximize the de-

velopmental potential of the person and be provided

in the setting that is least restrictive to his personal

liberty; that the Federal government and the States

have an obligation to assure that public funds are

not provided in programs which do not provide ap-

propriate treatment, services and habilitation or do

not meet minimum standards respecting diet, medical

and dental services, use of restraints, visiting hours

and comptiance with fire and safety codes; and that

programs for the developmentally disabled should

meet appropriate standards including standards ad-

justed for the size of the institutions which are at

least comparable to those promulgated under title 19

of the Social Security Act. (Emphasis added).

H.R. Conf. Rep. No. 94-478, 41-42 (1975), [1975] USS.

Code Cong. & Ad. News 9438, 961.

44a

When the Conference Report was submitted to the Sen-

ate, the new version of Title II (the Bill of Rights) was

specifically reprinted so as “to emphasize the importance

of this title of the bill.” 121 Cong. Rec. 29,819 (1975)

(remarks of Sen. Stafford). Senators Javits, Schweiker,

and Williams all called attention to the Bill of Rights in

applauding the compromise measure. /d. at 29,820-21.

Yet, while it disfavored institutionalization, the Devel-

opmentally Disabled Assistance and Bill of Rights Act

did not prohibit all institutions. Congressman Carter,

introducing H.R. 4005, stated “[t]his legislation also di-

rects that States should devote attention to improving the

facilities and surroundings of institutions where people

have been appropriately institutionalized.” Jd. at 9976.

Senator Stafford reported that “Title Il was added to

the bill to assist in the protection of the rights guaran-

teed under our Constitution for those individuals that

will require institutionalization ...” Jd. at 16,516. And

Senator Cranston observed that “in encouraging the move-

ment to community-based programs, I recognize that the

need for some long-term residential programs wil! re-

main. The bill specifically provides that where institu-

tional programs are appropriate, adequate support should

be planned for them so that necessary treatment and

habilitation programs can be given residential patients

to develop their full potential.” Jd. at 16,520. These same

points were reflected in the Conference Report. Explain-

ing the Bill of Rights provisions, the Report stated:

These rights are generally included in the confer-

ence substitute in recognition by the conferees that

the developmentally disabled, particularly those who

have the misfortune to require institutionalization,

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.

45a

H.R. Conf. Rep. No. 94-478, 42 (1975), [1975] US.

Code Cong. & Ad. News 943, 961.

The Act does not, therefore, articulate a per se rule

prohibiting institutions. That was not how the Congress

understood the right to the least restrictive alternative.

Rather, it seems that Congress believed that, for some

patients, institutionalization might be “appropriate.” In

those individual cases, probably comparatively rare, ade-

quate habilitation could not be accomplished in any set-

ting less restrictive than an institution and the need for

such habilitation could thereby justify institutionaliza-

tion.

It is argued, however, that because the Act, until 1978,

required states to spend a specific minimum amount for

deinstitutionalization, the states were free to use insti-

tutions as much as they chose so long as they spent the

specified amounts on alternative facilities. According to

this thesis, states might retain full or nearly full insti-

tutionalization even for those patients for whom institu-

tionalization was not “appropriate.” We do not accept

this contention. The spending requirement was clearly

intended to encourage the development of alternative fa-

cilities. Congress rightly believed that the states were

doing too little to develop alternatives to institutions. The

minimum expenditure requirement must not be confused

with a maximum duty on the States’ parts; to do so

would substantially undermine the right articulated in

section 6010 and the insistence on specific deinstitutional-

ization plans in section 6063.

We hold, therefore, that the Developmentally Disabled

Assistance and Bill of Rights Act provides to mentally

retarded persons the right to the least restrictive environ-

ment. For some patients, to be sure, the Act contemplates

that institutionalization might be appropriate once ade-

quate habilitation and living conditions are established.

46a

The clear preference of the Act, however, is deinstitu-

tionalization, and for the reasons set forth in Part V

A(1), we have no doubt about Congressional power to

impose the least restrictive alternative requirement upon

the states for patients who do not require institutionaliza-

tion for adequate habilitation.

B. Section 504 of the Rehabilitation Act of 1973

Appellees argue that section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794 (1976), also reflects Con-

gressional desire to discourage the institutionalization of

the mentally handicapped.*®

While its language is somewhat opaque, appellees argue

that the illuminating legislative history of section 504

supports the view that Congress sought in that section

to combat, to the extent appropriate, the isolation of the

handicapped from the community—an isolation which it

believed was ineluctably entailed by institutionalization.*”

29 Section 504 provides

No otherwise qualified handicapped individual in the United

States, ... shall, solely by reason of his handicap, be excluded

from the participation in, be denied the benefits of, or be sub-

jected to discrimination under any program or activity receiv-

ing Federal financial assistance.

29 U.S.C. § 794 (1976).

Section 504 is the final section of the Rehabilitation Act of 1973.

Textually, section 504 parallels the language of section 601 of Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1976), and

of section 901 of Title IX of the Educational Amendments of 1972,

20 U.S.C. § 1681 (1976). Its passage was the result of a long effort

to obtain for the handicapped a civil rights act similar to section

601 and section 901.

30 See 118 Cong. Rec. 525 (1972) (remarks of Sen. Humphrey)

(anti-isolation purposes of proposed amendment to § 601, predeces-

sor to § 504); H.R. 8395, 92d Cong., 2d Sess. (1972) (Rehabilita-

tion Act of 1972, predecessor bill of Rehabilitation Act of 1973) ;

118 Cong. Rec. 32,280 (1972) (remarks of Sen. Cranston) (anti-

discrimination and anti-isolation purposes of Act); id. at 32,310

(remarks of Sen. Humphrey) (same); id. at 35,163 (anti-discrimi-

nation provision accepted by House in conference); id. at 36,410

—

47a

Thus section 504, appellees argue, provides an alternative

statutory basis for enforcing the right to a least restric-

tive environment or that the legislative history of section

504 offers powerful corroboration for the deinstitutional-

ist purposes of the Developmentally Disabled Assistance

and Bill of Rights Act. However, because we have found

clear expression of a least restrictive alternative require-

ment in the Developmentally Disabled Assistance and

Bill of Rights Act, and ample confirmation of that ex-

pression in its legislative history, we find it unnecessary

to consider these arguments. One clear federal statute

announces the governing rule, and one is enough. Thus

we decline to consider section 504 issues on this appeal.

VII. RELIEF

We have thus far concluded that the mentally retarded

patients at Pennhurst have federal and state protected

rights to habilitation in the least restrictive environment.

Moreover, it goes almost without saying that Pennhurst,

as it was constituted and operated at the time of the

lawsuit, was in flagrant violation of those rights. The

conditions at Pennhurst were unsanitary, programming

was nonexistent, enforced idleness was substituted for

meaningful habilitation, physical and chemical restraints

were wantonly applied, and overcrowding and understaff-

ing were the prevailing institutional norms. Yet, appel-

lants contend that even if they were properly found liable

under federal and state law, the trial court nevertheless

(remarks of Rep. Brademas) (opposing isolation of handicapped

due to institutionalization) ; id. at 36,414 (remarks of Rep. Badillo)

(same); id. at 37,203-04 (Rehabilitation Act of 1972 vetoed by

»Pres. Nixon).\The bill was reintroduced as the Rehabilitation Act

of 1973. S./7, 93d Cong., 1st Sess. (1973), and section 504 was

finally enacted as part of this Act, with its proponents again em-

phasizing anti-isolation principles. See 119 Cong. Rec. 5880 (1973)

(remarks of Sen. Cranston) ; id. at 5887 (remarks of Sen. Javits) ;

id. at 18,127 (remarks of Rep. Brademas); id. at 24,566 (remarks

of Sen. Stafford).

48a

erred in several respects in ordering the relief that it did.

First, they argue, the court order violates the eleventh

amendment insofar as its effectuation will require an

allocation of funds from the state treasury. Second, they

urge, the relief should not have been classwide since

events have disclosed a material rupture within the af-

fected class. Third, appellants protest the appointment

of a special master as beyond the scope of Rule 53(b),

Fed. R. Civ. P. 53(b). Finally, they contend, several

specific portions of the court order are legally unsupport-

able. These include: the requirement that patients and/

or their next friend participate in the structuring of

relief and review of the plan; the requirement that cer-

tain local rules on physical and chemical restraints be

implemented; the requirement that a ‘“friend-advocate”

system be established; the requirement that alternate

employment for each Pennhurst employee be found; and

the requirement that Pennhurst be closed entirely and

community living arrangements established in its place.

While most of these objections are insubstantial we do

agree that the ordered relief is somewhat overbroad. Ac-

cordingly, the injunction will be modified in accordance

with our discussion below.

A. The Eleventh Amendment

The Commonwealth defendants assail the decree as a

violation of the eleventh amendment. They urge that al-

though the decree is couched in terms of prospective in-

junctive relief, its effectuation will nevertheless require

the expenditure of Commonwealth funds. This result, it

is urged, is forbidden by Edelman v. Jordan, 415 US.

651 (1974). Yet Edelman specifically acknowledges the

continued availability of prospective injunctive relief even

though such relief realistically does impose financial bur-

dens. 415 U.S. at 667-68. See Fitzpatrick v. Bitzer, 427

U.S. 445, 459-60 (Stevens, J., concurring). All of the

49a

relief ordered here is prospective. We have told the Com-

monwealth before that Edelman “quite explicitly left in-

tact the authority of federal courts to enter prospective

decrees having fiscal consequences to a state treasury as

the necessary result of compliance.” Vecchione v. Wohl-

gemuth, 558 F.2d 150, 158 (3d Cir.), cert. dented, 434

U.S. 943 (1977). We have not changed our minds on

that question.

We note, in addition, that the Supreme Court has re-

cently reaffirmed this position. In Quern v. Jordan, 440

U.S. 332 (1979), the Court held that it was not a viola-

tion of the eleventh amendment for a federal court to

order state officials to send an explanatory notice to mem-

bers of a class advising them that there are state admin-

istrative procedures available by which they may receive

a determination of whether they are entitled to past

welfare benefits. The mere fact that such notices might

eventually lead to an expenditure of funds by the state

did not alter the fact that the relief was “properly viewed

as ancillary to the prospective relief already ordered by

the court.” 440 U.S. at 349.

We therefore reject appellants’ eleventh amendment

objections.

B. Classwide Relief

On April 13, 1978, a motion to intervene in order to

protest the possible closing of Pennhurst was filed on

behalf of the Pennhurst Parents-Staff Association and

six Pennhurst residents. That motion, which was made

after the Commonwealth and Philadelphia defendants had

filed their notices of appeal, was denied, and the appeal

from that denial is considered separately at No. 78-1999.

In their appeal in this case, the Commonwealth defend-

ants rely on that motion to intervene as evidence that

the interests of the plaintiffs were adverse to one another,

and thus that the trial court erred, first, in certifying

the class, and second, in granting classwide relief. We

50a

reject completely the first contention. The certification of

the class for purposes of determining liability was en-

tirely proper. Plainly, the violations of federal and state

law which the trial court found and which we have af-

firmed, are violations affecting all of the plaintiffs, not

simply those who wish a transfer from Pennhurst. At

the liability stage, therefore, important questions of law

were common to all members of the class. Thus, regard-

less of my subsequent disagreement among class members

as to the appropriate relief, we can think of no persua-

sive reason to have fractionated the class at that early

juncture. See Fed. R. Civ. P. 23(c) (4) (A) (permitting

use of class action device for purposes of particular is-

sues within lawsuit). As Judge Frankel observed in the

context of class actions brought under Rule 23(b) (3),

Fed. R. Civ. P. 23(b) (8) :.

In the cases to which I refer, assertedly under

(b) (3)—i.e., having both common issues and issues

affecting separately the individual members of the

class—district judges have apparently thought that

all members of the class would have to be brought

before the court—for discovery as well as trial—

before there could be any judgment affecting the

class as a whole. Insofar as this premise lurks in

the cited cases, it would appear to be unwarranted.

Take, for example, the simple model of the case by

an alleged class of securities purchasers charging

fraudulent representations. There are, supposedly,

common questions as to the nature of the alleged rep-

resentations, falsity, and materiality. If some or all

such questions are decided against the plaintiff class,

the complaint will be dismissed and, always assum-

ing adequate representation of the class, there will

be a judgment binding the class without requiring

any but the representative members to have been

before the court.

5la

On the other hand, if the plaintiff class prevails

on the common questions, it will then—but only then

—become necessary to try or settle or otherwise dis-

pose of individual questions like reliance, damages,

or the like. If the common questions have been aptly

defined, there should be no need at an earlier stage

to have all the individual class members before the

court for discovery or any other purpose.

Frankel, Some Preliminary Observations Concerning

Civil Rule 23, 48 F.R.D. 39, 47 (1967) (footnote omit-

ted). See also Developments in the Law—Class Actions,

89 Harv. L. Rev. 1818, 1491-92 (1976). It was not abuse

of the trial court’s discretion to certify the class for pur-

poses of determining liability.”

The Commonwealth contends, however, that because

some members of the plaintiff class are opposed to the

closing of Pennhurst, the class should at least have been

decertified for purposes of relief. Thus, it argues that

classwide relief infringes on the dissenting members’

rights. As we indicate in more detail below, the trial

court did err in promulgating a blanket order closing

Pennhurst without sufficiently canvassing the needs of

individual patients. Accordingly, inasmuch as we modify

the court order appealed from, our opinion takes account

of the differences within the class concerning relief.

Nevertheless, we do not think that the implementation

of the relief, as modified by our opinion, requires the

decertification of the class. Two procedural alternatives,

short of decertification, are available to the trial court

on remand in implementing individuated relief.

First, the court can create subclasses within the

plaintiff class pursuant to Rule 23(c)(4)(B). Through

31 See Paton v. La Prade, 524 F.2d 862, 875 (3d Cir. 1975);

Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 245 (3d Cir.), cert.

denied, 421 U.S. 1011 (1975).

52a

this process, individual patients who wish to remain at

Pennhurst may be represented at the implementation

hearings. We suggested this approach in Samuel V.

University of Pittsburgh, 588 F.2d 991 (3d Cir. 1976)

(Clark, J.). There, we reversed a trial court decision

decertifying a class at the relief stage. We stated that

“even if there were managerial difficulties [in litigating

the appropriate relief], some investigation into the possi-

ble usefulness of subclasses as suggested by Rule 23

(c) (4) (B) should have been undertaken before decerti-

fication was ordered.” 588 F.2d at 996. See also Nix

v. Grand Lodge of Int'l Ass’n of Mach. & Aero. Work-

ers, 479 F.2d 382, 385 (5th Cir.), cert. denied, 414

U.S. 1024 (1973) ; Developments in the Law—Class Ac-

tions, 89 Harv. L. Rev. 1318, 1479-82 (1976).

Yet another means by which dissenting members

may be represented at the relief stage is through inter-

vention. See id. at 1482-85. We note in this connection

that the trial court currently has under consideration a

motion by the Pennhurst Parents-Staff Association—

who purport to represent patients opposed to closing

Pennhurst—to intervene at the relicf stage.

Even should the trial court ultimately decline to

pursue either of these two procedural alternatives to

decertification, the interests of dissenting members will

still be represented. As we suggested above, and as we

will elaborate at greater length below, plaintiffs’ right to

habilitation in the least restrictive environment requires

that they be given an individual opportunity to partici-

pate in the process by which their habilitation is chosen.

Thus, whether they are represented as a group, through

such procedural safeguards as subclasses or interven-

tion, or whether they participate as individuals, class

members who wish continued habilitation at Pennhurst

will have a chance to state their position.

53a

C. The Use of a Master

The court found that implementation of its order

would be impossible without the assistance of a Special

Master “with the power and duty to plan, organize, di-

rect, supervise and monitor the implementation of this

and any further Orders...” 446 F. Supp. at 1326. It

directed the Commonwealth and County defendants to

provide the Master with access to premises, records,

documents, and residents, and to cooperate with him to

the extent necessary to execute such orders. The Master

was directed to prepare and present to the court for its

approval various plans for the transfer of Pennhurst resi-

dents to CLAs and for the provision of services to the

class members “in the least separate, most integrated,

least restrictive community setting,” taking into account

available resources. Jd. at 1326-27. The order also di-

rected that the Master prepare a plan for the interim op-

eration of Pennhurst pending its replacement by other

living arrangements and services.

The appellants contend that appointment of a mas-

ter was improper under Rule 53(b), Fed. R. Civ. P.

53(b). We disagree. It is abundantly clear that providing

the 1200 Pennhurst residents with a right to habilitation

in the least restrictive environment will be a complex

and lengthy process, probably involving monitoring, dis-

pute resolution, and development of detailed enforce-

ment mechanisms. Were we to preclude the trial court

from resorting to a master, we would help make self-

fulfilling the frequently made prophecy that courts are

institutionally incapable of remedying wholesale viola-

tions of legally protected rights. Masters have been used

in a wide variety of remedial contexts. These include

cases involving handicapped children,®? as well as cases

32 See, e.g., Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C.

1972) ; Pennsylvania Ass’n for Retarded Children (PARC) v. Penn-

sylvania, 334 F. Supp. 1257 (E.D. Pa. 1971); 343 F. Supp. 279

(E.D. Pa. 1972).

54a

remedying various other statutory or constitutional viola-

tions.** Masters are peculiarly appropriate in the im-

plementation of complex equitable decrees which require

ongoing judicial supervision.™

Moreover, by use of a master, the judge can mini-

mize his personal participation in the details of imple-

mentation without sacrificing direct control or efficacy.”

While they acknowledge that courts have frequent-

ly relied upon special masters, appellants nonetheless

insist that the master appointed by the trial court in

this case will have excessive powers. “The proper rule of

a master in federal litigation,” appellants urge, “is nar-

rowly circumscribed.” Brief for Commonwealth Appel-

lant at 49. Specifically, it is urged, a master may only

find facts. Since the lower court has already found the

facts, any use of a master for implementation purposes

intrudes excessively into the proper domain of local au-

tonomy. Id. at 51-52.

This argument is unpersuasive. First, the Common-

wealth is simply incorrect in asserting that the scope of a

33 See, e.g., Chicago Hous. Auth. v. Austin, 511 F.2d 82 (7th

Cir. 1975) (overseeing implementation in public housing discrimi-

nation case); Gautreux v. Chicago Hous. Auth., 384 F. Supp. 37

(N.D. Ill. 1974) (same) ; Hart v. Community Sch. Bd., 383 F. Supp.

699 (E.D.N.Y. 1974) aff’s 512 F.2d 37 (2d Cir. 1975) (coordinating

development of desegregation plan in housing and school discrimi-

nation case) ; Moore v. Leflore County Bd. of Election Comm’rs, 361

F. Supp. 603 (N.D. Miss. 1972) (formulating reapportionment

plan); Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972) (im-

plementing prison reform), aff’d, 501 F.2d 1291 (5th Cir. 1974);

Knight v. Board of Educ., 48 F.R.D. 115 (E.D.N.Y. 1969) (conduct-

ing due process grievance hearings in schools).

34 See generally Note, Implementation Problems in Institutional

Reform Litigation, 91 Harv. L. Rev. 428 (1977); Note, Monitors:

A New Equitable Remedy ?, 70 Yale L.J. 103 (1960).

35 Note, Implementation Problems in Institutional Reform Litiga-

tion, 91 Harv. L. Rev. 428, 451 (1977); Kaufman, Masters in the

Federal Courts: Rule 58, 58 Colum. L. Rev. 452, 469 (1958).

55a

master’s duties is narrow. As one commentator has prop-

erly noted, “[m]asters may be delegated the authority to

issue subpoenas, hear grievances, take sworn testimony,

and make formal or binding recommendations, includ-

ing contempt findings, to the court.” Note, /mplementa-

tion Problems in Institutional Reform Litigation, 91

Harv. L. Rev. 428, 451 (1977). In employment discrim-

ination cases, for example, court-appointed administra-

tors, who have the same powers as masters, have made

frequent and successful use of rather wide-ranging pow-

ers. See Harris, The Title VII Administrator: A Case

Study in Judicial Flexibility, 60 Cornell L. Rev. 53

(1974). Authorized to take all action necessary to imple-

ment the decree and to remedy breaches of compliance,

these administrators have performed negotiating and

investigatory functions, and have issued recommenda-

tions for future implementation. Jd. at 55, 64. See Note,

Implementation Problems in Institutional Reform Liti-

gation, 91 Harv. L. Rev. 428, 452 (1977).

In this case, moreover, the court’s resort to use of a

master is particularly appropriate. After the decision on

liability was announced, the appellants were afforded an

opportunity to devise and present their own remedies for

conditions at Pennhurst. They failed to do so. At that

point, having received insufficient assistance from the of-

ficials directly involved, the court was faced with the

choice of massive personal participation in devising a

complex scheme for remedying the violations that were

found, or of proceeding with the assistance of a master,

whose functions would be supplementary to and super-

visory over those of the Commonwealth and County

defendants. We hold that the trial court chose correctly

in ordering the appointment of a master. We are con-

fident that the court will exercise appropriate super-

vision over the operations of the master in order to

minimize the expenditure of funds in the administration

of his responsibilities and the manner in which he dis-

56a

charges his responsibilities under the degree; in particu-

lar, the manner in which individualized habilitation

programs are developed for each class member. As we

understand the role of the Master under the decree, he is

to supervise all implementation efforts with the aid and

assistance of all parties to the lawsuit. The defendants

will thus have an opportunity to participate in the struc-

turing of relief. Moreover, their underlying obligation to

provide habilitation in the least restrictive environment

is derived, in part, from a state statute and federal stat-

utes under which Pennsylvania has received federal

funds. These duties were known and consented to.

These considerations, in our view, vitiate whatever com-

plaint the Commonwealth might otherwise have that the

court order somehow violates whatever principles of fed-

eralism are relevant. Brief for Appellant at 59-62.

D. Specific Objections to the Court Order

Appellants also contest certain specific portions of

the court’s decree. They object to paragraph 2, 446 F.

Supp. at 1326, which entitles members of the class and

their next friend to participate in the development and

review of the plan. They protest that paragraph 13, id. at

1328, requiring that certain local rules on physical and

chemical restraints be implemented, is inapplicable

since (1) the rules were not in effect long enough to per-

mit a finding that they were violated, and (2) the rules

are not statutorily compelled. In addition, appellants

contend that paragraph 6, id. at 1326-27, imposes on the

state duties which have no legal source; these duties in-

clude the establishment of a friend-advocate system and

the provision of alternative employment for each

Pennhurst employee. Finally, appellants argue that the

trial court should not have ordered that Pennhurst be

entirely closed, particularly in view of the apparent de-

sire of certain members of the class to remain at the in-

stitution once it is improved.

57a

Criteria for evaluating the trial court’s exercise of

discretion in effecting a remedy are set forth in Milliken

v. Bradley, 483 U.S. 267, 279-288 (1977) (Milliken II).

There, the Court held that if an alleged injury is con-

stitutionally (or presumably statutorily) cognizable, “the

remedy does not ‘exceed’ the violation if the remedy is

tailored to cure the ‘ “condition that offends the Con-

stitution.”’” Jd. at 282 (quoting Mulliken v. Bradley,

418 U.S. 717, 738 (1974) (Milliken I)) (emphasis added

by the Milliken II Court). In Milliken II, the Court af-

firmed a district court decision to order certain remedial

reading, testing, and counseling services. These remedies,

the Court concluded, were found by the trial court to be

necessary to “cure” the “condition” of de jure segrega-

tion in Detroit. Jd. at 288. The Supreme Court could find

no reason to believe that the district court had abused its

“broad and flexible equity powers” in reaching this de-

termination. Id.

Under these liberal standards, we have no trouble

upholding paragraphs 2 and 13 of the court order. In this

case, the “condition” to be “cured” is the failure to pro-

vide the retarded with adequate habilitation in the least

restrictive environment. Both paragraphs 2 and 13 are

directly addressed to remedying this condition. Parental

and patient participation in the design of alternative

facilities is well-suited to redressing the violations of the

rights of the retarded. So, too, are the restrictions im-

posed by the court against physical and chemical re-

straints.

In addition, we affirm that portion of paragraph G

which establishes a friend-advocate system to monitor

the continued availability of community services to the

retarded. Not only will such a system help to effectuate

the rights of the retarded but, by providing ongoing su-

pervision of implementation efforts, it will reduce the

need for judicial oversight.

58a

The court’s decree should be modified in two respects.

First, we cannot agree with that portion of paragraph

6, requiring that alternative employment be provided to

all Pennhurst employees. Even under the liberal stand-

ards of Milliken I, we do not see how this mandate is

reasonably related to facilitating the right of the re-

tarded to habilitation in the least restrictive environ-

ment. This section of the court’s order must therefore

be set aside.

Second, we cannot agree with the trial court that

Pennhurst must be entirely closed. In so ruling, the

court first noted that Pennhurst was not providing ade-

quate habilitation at the time of the litigation, 446 F.

Supp. at 1318. With that conclusion we obviously agree.

But the court also held that Pennhurst could never pro-

vide adequate habilitation because of its very status as a

large institution.

[O]n the basis of this record we find that minimally

adequate habilitation cannot be provided in an in-

stitution such as Pennhurst. As the Court has here-

tofore found, Pennhurst does not provide an at-

mosphere conducive to normalization which is so

vital to the retarded if they are to be given the op-

portunity to acquire, maintain and improve their life

skills. Pennhurst provides confinement and _isola-

tion, the antithesis of habilitation. We found that

Pennhurst has produced regression and in many in-

stances has destroyed life skills possessed by its re-

tarded residents at the time of their admission. We

are inclined to agree with the following comments

of Mason & Menolascino, . . . (footnotes omitted):

Although Wyatt and Welsh are significant

in their recognition of the principles of nor-

malization and the developmental model for the

factual foundation of their formulation of the

constitutional right to habilitation, their ap-

59a

proach can be considered only the rudimentary

beginning. The logic of normalization and the

developmental model which Wyatt and Welsh

recognized suggests full implementation of

habilitation can only be achieved in a

non-institutional setting. Institutions, by their

very structure—a closed and segregated society

founded on obsolete custodial models—can

rarely normalize and habilitate the mentally re-

tarded citizen to the extent of community pro-

grams created and modeled upon the normali-

zation and developmental approach components

of habilitation. Neither Wyatt nor Welsh fully

implemented the right to habilitation in that

they failed to challenge the very existence of the

institution. Consequently, the two institutional

characteristics most antithetical to the appli-

cation of the normalization principle remain in-

tact: segregation from the community and the

total sheltering of retarded citizens in all

spheres of their lives.

Id. (footnote omitted) (quoting Mason & Menolascino,

The Right to Treatment for Mentally Retarded Citizens:

An Evolving Legal and Scientific Interface, 10 Creighton

L. Rev. 124, 156-57 (1976)). The court was thus appar-

ently persuaded to the view, shared by many practition-

ers, that institutionization of any sort is a deterrent to

adequate habilitation.*

It is probably true, as the trial court found, that in

general institutions are less effective than community

living arrangements in facilitating the right to habilita-

tion in the least restrictive setting. There is ample testi-

mony on the record indicating the shortcomings of insti-

36 See, e.g., Burt, Beyond the Right to Rehabilitation, in The

Mentally Retarded Citizen and the Law 418-36 (President’s Com-

mittee on Mental Retardation 1976).

60a

tutions as places for habilitation. See, e.g., Record, vol.

1, at 96 (testimony of Dr. Roos); Record, vol. 4, at 73

(testimony of Mr. Lancaster-Gaye) ; Record, vol. 2, at 96

(testimony of Dr. Clements). Moreover, institutions

would generally appear n

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