# Petition — PENNHURST PARENTS-STAFF ASSOCIATION v. TERRI LEE HALDERMAN (Nos. 79-1489, 79-1404, 80-738) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2229%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text @g-i439 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 5 | WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 / cxf 00 | AA ARNIS TARR ian ae mmm nn ky we . ; k ' i | INDEX SG ics icccoseksancareccusriorveien PIII ascesecniciesedaubditesihhenkinpcuizeitim Statutory provisions involved ....... Questions presented .......00............- IIIT: ©. 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 not to be the least restrictive en- vironment in which to provide habilitation. See Record, vol. 4, at 79 (testimony of Mr. Lancaster-Gaye) ; Record, vol. 2, at 85 (testimony of Dr. Clements) ; Record, vol. 1, at 179 (testimony of Dr. Roos). Thus we cannot find clearly erroneous the trial court’s determination that, for the retarded class members as a whole, Pennhurst can- not be an appropriate setting in which to provide habili- tation. But in making this wholesale judgment, the trial court did not adequately canvass the discrete needs of individual patients. For some patients a transfer from Pennhurst might be too unsettling a move. Longterm patients, for example, may have suffered such degener- ation in the minimum skills needed for community liv- ing that habilitation outside an institution is a practical impossibility. Indeed, the Pennhurst Parents-Staff Asso- ciation, which has participated as an amicus in this ap- peal, contends that this is true for many patients. Moreover, there seems to be some support among practi- tioners for this view as well.*’ We need not decide that issue here. All that we need recognize is that there may be some individual patients who, because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life out- side of an institution and thus will be harmed by such a change. The case must therefore be remanded for indi- vidual determinations by the court, or by the Special 37 See e.g., Clements, Reaction Comment, in The Mentally Re- tarded Citizen and the Law 437 (President’s Committee on Mental Retardation, 1976); M. Rosen, G. Clark, & M. Kivitz, Habilitation of the Handicapped (1977). 6la Master, as to the appropriateness of an improved Penn- hurst for each such patient. We base our ruling on the nature of the rights being enforced in this case. The framers of 42 U.S.C. §§ 6001- 6081, as we have noted, did not anticipate a shut- down of all institutions when they endorsed a right to habilitation in the least restrictive environment. Rather, they recognized that for some patients institu- tions, once improved, might be appropriate. Similarly, we do not think that the Pennsylvania legislature, in providing a right to treatment in the Mental Health and Mental Retardation Act of 1966, intended to foreclose all institutionalization. In section 102 of that Act, for ex- ample, the legislature expressly included “institution[s]” within the category of “facilities” for which the Depart- ment of Public Welfare was responsible. Pa. Stat. Ann. tit. 50, § 4102. Thus, we see in the MH/MR Act of 1966 exactly the intent ascribed to it by Senator Peshan when he spoke in support of the measure. The object of this legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it. 1966 Pa. Legis. J., 3d Spec. Sess., No. 33, 76 (Sept. 27, 1966). The state statute, like the federal statute, was fo- cused on individual needs. Since the statutory rights to treatment, state and federal, vindicate the individual pa- tient’s fundamental interest in personal liberty, it is only fitting that the Commonwealth be required to undertake a case-by-case investigation into how each _ person’s rights may best be facilitated. The right to the least restrictive environment also supports an individualized approach. Insofar as the right derives from sections 6001-6081, it is plain that no per se rule against institutions was contemplated. Moreover although we do not predicate our holding on a constitu- 62a tional right to treatment in the least restrictive setting, we note that such a constitutional right would protect the liberty interest of individuals. It would be anomalous to recognize the right to the least restrictive environment but never inquire whether a given individual can adjust to the environment to which he has been con- signed. Thus to the extent that the district court predi- cated its blanket prohibition against institutionalization in Pennhurst on the fourteenth amendment, we dis- agree. Whatever the Constitution requires by way of least restrictive alternatives, it does not preclude resort to institution2lization of patients for whom life in an in- stitution has been found to be the least restrictive envi- ronment in which they can survive. Of course, deinstitutionalization is the favored approach to habilitation. The federal statutory material makes that clear and we acknowledge that constitutional law developments incline in that direction as well.** Thus, on remand, the court or the Master should engage a pre- 38 See, e.g., Parham v. J.L., —— USS. , 99 S. Ct. 2498, 2502-03 (1979); Secretary of Public Welfare of Pennsylvania v. In- stitutionalized Juveniles, 47 U.S.L.W. 4754, 4756 (U.S. June 20, 1979); O’Connor v. Donaldson, 422 U.S. 563, 575 (1975); Welsch v. Likins, 550 F.2d 1122, 1125-26 (8th Cir. 1977), affirming in rel- evant part, vacating and remanding in part, 373 F. Supp. 487 (D. Minn. 1974); Lake v. Cameron, 364 F.2d 657, 663 (D.C. Cir. 1966) (en banc); Evans v. Washington, 450 F. Supp. 483, 484 (D.D.C. 1978) (by consent decree); Eubanks v. Clarke, 434 F. Supp. 1022, 1027-28 (E.D. Pa. 1977); Gary W. v. State of Louisiana, 437 F. Supp. 1209 (E.D. La. 1976); Suzuki v. Quisenberry, 411 F. Supp. 1113, 1132-33 (D. Hawaii 1976); Lynch v. Baxley, 386 F. Supp. 378, 392 (M.D. Ala. 1974) (three judge court); Davis v. Watkins, 384 F. Supp. 1196, 1203, 1206 (N.D. Ohio 1974) (by stipulation) ; Saville v. Treadway, 404 F. Supp. 430, 433 (M.D. Tenn. 1974) (by stipulation); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded for a more specific order, 414 U.S. 473, order on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated and remanded on other grounds, 421 U.S. 957 (1975), order rein- stated on remand, 413 F. Supp. 1318 (E.D. Wis. 1976); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972); 344 F. Supp. 387 (M.D. Ala. 1972), enforcing 325 F.Supp. 781 (M.D. Ala. 1971), af- firmed in relevant part, remanded in part, and decision reserved in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 63a sumption in favor of placing individuals in CLAs. But the special needs and desires of individual patients must not be neglected in the process. Finally, consideration must be given to the order di- rected to the future activity of the Base Service Units. That order essentially imposes an absolute ban on ad- missions to Pennhurst, paragraphs 9, 10, 446 F. Supp. at 1327, and requires that the defendants provide CLAs for all persons on the Pennhurst waiting list, id. at 1326, paragraph 1. As we have noted with respect to current residents of Pennhurst, the court or the Master should engage in a presumption that individuals should be placed in CLAs. This presumption is equally important, if not more so with respect to applicants for future admission. However, we have recognized that although institutionalization is strongly disfavored, it is not foreclosed completely by the governing federal and state statutes. It is conceivable that in processing a given future application, a Base Service Unit will find that no available CLA is suitable for the individual, life in the community is not possible, and no other alternative institution in the relevant geo- graphic area is available. Modification of the decree to permit admission to Pennhurst of such an individual while it remains open, but under court supervision as in the case of present residents, seems appropriate. This would provide for the interim accommodation of such persons while, as the decree contemplates, and the Com- monwealth intends, Pennhurst is being phased out. We emphasize again, however, that any determination with respect to future applicants must always be made with the least restrictive alternative in mind and that the modification is appropriate only because an extreme situ- ation calling for institutionalization might arise. The precise mechanism for court supervision of the Base Service Units in this regard we leave to the district court. 64a Naturally, nothing we have said here should be under- stood to disapprove the interim measures ordered by the trial court for the improvement of Pennhurst. Quite the reverse: state and federal laws plainly require that if Pennhurst is to remain open for at least some patients, it must be dramatically improved so as to provide ade- quate habilitation. Neither should our willingness to permit retention of Pennhurst as an institution available for those who cannot be treated in any less restrictive environment be construed as an invitation to the appel- lants to desist from opening up alternative community facilities. As we have said, institutionalization is a dis- favored approach to habilitation. Only where the court or the Master finds that an improved Pennhurst is the only appropriate place for individual patients should it be used. For all other patients, CLAs must be provided.” We caution both the trial court and the Master that be- fore ordering transfers to CLAs they must have assur- ances that the sanitary, staffings, and program deficien- cies which were found at Pennhurst are not duplicated on a smaller scale in the CLAs. If staffing and programs are inadequate at the CLAs, then the goals of deinstitu- tionalization will not be met. Mere changes in the size of buildings and their location are not enough to meet the statutory requirements. There are six other appeals pending in this court from orders entered subsequent to the March 17, 1978 order with which this opinion deals. By agreement of the par- ties, briefing has been postponed in these appeals pending disposition of this appeal. On remand, the district court should be free, despite the pendency of the appeals, to consider modification of the orders with which these ap- 39 We note, in this connection, that the development of suit- able CLAs will impose little, if any, financial burden on the State and Counties. As we indicated in Part III, the trial court made a finding, unchallenged on appeal, that per patient cost in CLAs is less than at Pennhurst. See 446 F. Supp. at 1312. 65a peals are concerned, in the light of the modification of the March 17, 1978 order that we have directed. Because the district court is free to consider modification of the orders subsequent to March 17, 1978, the motions for stays of those orders are denied without prejudice. VIII. CONCLUSION With the exception of the order to find alternative employment for all Pennhurst employees, the order di- recting the eventual closing of Pennhurst, and the order banning all future admissions to Pennhurst, the judg- ment of the trial court will be affirmed in all respects. To facilitate the inquiry into the appropriate setting for each patient’s habilitation, the court may if it chooses, permit particular organizations to intervene at the relief stage or create subclasses. Alternatively, it may allow the inquiry to proceed on a case-by-case basis. No matter how it is accomplished, however, an assessment of each. class member’s needs must be carried out. The case will therefore be remanded for further proceedings not in- consistent with this opinion. All parties shall bear their own costs. _ SEITZ, Chief Judge, with whom Judges ALDISERT and HUNTER join, dissenting. This case poses what is for the judiciary a singularly difficult and sensitive problem. At a federal judicial level, we are asked to interpret relatively new and innovative legislation and to embark upon uncharted constitutional waters. At a factual level, the record presents a mass of social science and medical data from which judges are asked to fashion legal rules. Initially, I have no trouble agreeing with the majority that the conditions at Pennhurst revealed in this record 66a fall below a statutory or constitutional threshold of de- cency so as to merit judicial intervention. The district court adequately documented the deplorable conditions at Pennhurst. See 446 F. Supp. at 1302-11. Understaffing, filth, violence, enforced inactivity, and other horrors make Pennhurst, in the opinion of one well-traveled expert, one of the worst institutions of its kind in the world. Under these circumstances the federal courts have a right and a duty to intervene and to secure for Pennhurst’s resi- dents, at the very least, adequate living conditions. Cf. Norris v. Frame, 585 F.2d 1183 (8d Cir. 1978) (scrutiny of pre-trial detainee’s conditions of confinement). I thus have no hesitation in agreeing that the federal judiciary should take the necessary steps to eliminate those condi- tions at Pennhurst. Pennhurst as it exists today, however, must not ob- scure what is an entirely severable legal issue. That issue is the legality of institutionalization of the mentally retarded. The inquiry is not whether institutionalization is outmoded, undesirable, or unjustifiably expensive. Rather, the question is, assuming a Pennhurst without the deplorable living conditions here, may a federal court step in and say institutionalization is illegal, and if it ean, what standard will the court employ in determining that illegality. It is on this issue that I part company with the majority. The district court held that no matter how much one might change Pennhurst, it would never be legal to place a person in such a large institution. Although the major- ity rejects that theory, its position is that even if all the deplorable living conditions at Pennhurst are eliminated, it still is impermissible to place persons there if a large institution is not the least restrictive environment for that individual. Such a rule goes far beyond the proposition that fed- eral courts should require the state to eliminate the 67a 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 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 particu- lar 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 indi- vidual. A federal court should remove a person from an institution 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 individualized treatment in the least restrictive environment. I. Statutory Basis A. Developmentally Disabled Assistance and Bill of Rights Act I will assume that the majority is correct in asserting, first, that patients at Pennhurst have a right to treat- ment under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000-6081 (the Act) ; and, second, that patients have an implied cause of ac- tion under the Act to enforce that right. These two con- clusions, however, bring one no closer to an answer in this case, for it means little to say that a person has a “right” without defining it in a particular context. In 68a this case, one must ask exactly what are the contours and substance of the right to treatment. The starting point for an answer to this question is the nature and history of the implied cause of action. In England as early as the thirteenth century, the king’s courts fashioned private remedies by looking to duties imposed on the defendant by royal enactments. See gen- erally J. Mashaw & R. Merrill, Introduction to the Amer- ican Public Law System 969-71 (1975) ; Katz, The Juris- prudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1 (1968). The essence of the implied cause of action is that the defendant breaches a duty imposed on him by a statute, and the breach in some way harms the plain- tiff, who then may supplement the statutory scheme through a private suit. See J.J. Case Co. v. Borak, 377 US. 426 (1964). One cannot divorce the implied cause of action from a duty imposed on the defendant by the statute in question. Unless the defendant’s activity vio- lated the statute, there is nothing a court can properly redress. Applying this precept to the case at hand, the question is whether the Act imposes a duty on the defendants to provide the least restrictive treatment possible to the plaintiffs. Unless it does the Act cannot be a proper basis for the majority’s holding. I agree with the major- ity that the legislative history indicates a preference for least restrictive treatment, but a preference cannot be elevated into a mandatory duty without explicit statutory authority. The Act nowhere places such a duty of least restrictive treatment on those states accepting federal funding. The Act is extremely explicit as to the duties of those states that receive such funds. The heart of the state’s duty under the Act is section 6063. Before the state can re- 69a ceive funds, it must submit a plan to the Secretary of Health, Education, and Welfare (HEW) for approval. Prior to the 1978 amendments, section 6063(b) (20) re- quired that the state’s submission to HEW contain: a plan designed (A) to eliminate inappropriate placement in institutions of persons with develop- mental disabilities, and (B) to improve the quality of care and the state of surroundings of persons for whom institutional care is appropriate.’ Moreover, the state must maintain individual habilita- tion plans and an advocacy system to ensure that the general plan approved by HEW is properly implemented. See 42 U.S.C. §§ 6011-6012. Cf. id. $$ 6007, 6067 (estab- lishing state and national planning and advisory com- missions) . The requirement in section 6063(b) (20), however, in no way imposes an absolute duty on the state to provide the least restrictive treatment. For example, the regula- tion dealing with this portion of a state’s plan provides: The State plan shall support the establishment of community programs as alternatives to institution- alization and support such programs designed to provide services for the care and habilitation of per- sons with developmental disabilities, and which uti- lize, to the maximum extent feasible, the resources and personnel in related community programs to assure full coordination with such programs and to assure the provision of appropriate supplemental 1This specific requirement was eliminated in 1978. The new provision still requires, however, that the plan deal with non- institutional treatment, albeit in a more general way. See, e.g., 42 U.S.C.A. § 6063(b) (5) (B)-(C) (1979 cumm. supp.). Cf. id. § 6063(b)(7)(B) (state plan must deal with right of employees dis- placed because of relocation of patients in community living ar- rangements). 70a health, educational, or social services for persons with developmental disabilities. 45 C.F.R. § 1886.43 (1978). I fail to see how a duty to “support” “feasible” non-institutional care can be ele- vated to an absolute duty to provide the least restrictive treatment for every individual regardless of cost or | available resources. The Act elsewhere demonstrates that the state’s limited resources may qualify its duty to provide alternate habili- tation. For example, the state has primary control over where the funds are to be allocated. See 42 U.S.C. § 6003. Indeed, the House Report on the 1975 version of the Act 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 re- quire some increase in expenditures, the Committee has also increased the authorizations of appropria- tions. It is anticipated that these requirements will prompt some movement of patients from State in- stitutions back into their communities. It is hoped that corresponding amounts of State and other funds currently being spent on institutional care will be re-budgeted for community care, an obvious rebudg- eting that has not always occurred in conjunction with deinstitutionalization efforts. House Rep. No. 94-58, 94th Cong., 1st Sess. 10, reprinted in 2 U.S. Code Cong. & Admin, News 919, 928 (1975). T1la This passage illustrates that Congress intended the Act as no more than an incentive to deinstitutionalization, not an imposition of a mandatory requirement regardless of fiscal concerns. Thus the language and structure of the Act, the rele- vant regulations, and the legislative history all indicate that the states may consider their own resources in pro- viding less restrictive treatment. The duty of the states under the Act is to provide alternative individual habili- tation to the extent feasible, which includes a wide variety of fiscal concerns. Yet the import of the approach taken by the majority is exactly the opposite: it imposes a duty to provide less restrictive treatment, regardless of cost or available funds. This is an approach entirely in- consistent with the nature of an implied cause of action, which must rest on the breach of a statutory duty. In effect, the majority transforms the duty of providing feasible alternative treatment into an entirely different substantive obligation that has absolutely no basis in the statutory scheme. It is improper to say an implied statu- tory cause of action exists and then impose new substan- tive duties nowhere present in the statute in question. The majority places great emphasis on section 6010, the bill of rights section. The broad rights declared in section 6010 can be given concrete meaning, however, only by reference to the other provisions in the Act. I do not believe, especially with a funding statute such as the one here, that general findings and declarations should be used as a charter for the creation of absolute obliga- tions where Congress felt the states should be free to choose on their own as to the proper allocation of funds. Cf. Beal v. Doe, 432 U.S. 488 (1977) (Title XIX gives states latitude as to whether to spend federal funds on abortion). In sum, where Congress establishes a funding scheme designed to encourage a course of conduct, that 72a is no license to federal courts to make that conduct mandatory. None of this is meant to denigrate the purpose of section 6010. The time has passed when retarded persons can be considered citizens without any rights whatsoever. Those rights conferred by this Act are important and a significant step on the road on which our nation has a far way to go. Yet the judiciary should not permit such feelings to exceed the obligations imposed on states by the Act. Because the Act nowhere imposes an absolute duty on funded states to provide the least restrictive treatment regardless of cost or feasibility, I would hold that the Act does not support those portions of the dis- trict court’s order that create such an obligation. B. Rehabilitation Act of 1973 The district court held that continued confinement at Pennhurst, which receives federal funds under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et segq., vio- lated section 504 of the Rehabilitation Act of 1973.? That provision, as amended in 1978, states in relevant part: 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 subjected to discrimina- tion under any program or activity receiving Fed- eral financial assistance .... 2The arguments treated in this section are those of the plain- tiffs, not the district court. That court concluded that “[i]n en- acting Section 504 . . . Congress has in effect codified the constitu- tional right to equal protection.” 446 F. Supp. at 1323. Because of its earlier conclusion that confinement at Pennhurst violated equal protection, see 446 F. Supp. at 1321-22, the district court felt that section 504 also had been violated. The district court’s analysis of the section 504 claim accordingly is subsumed in my consideration of plaintiffs’ equal protection claim. See Part I1.B, infra. 73a 29 U.S.C. § 794, as amended, Pub. L. 95-602, § 122(d) (2), 92 Stat. 2987 (1978). The issue is whether section 504 mandates positive ac- tion by the state to create new, less restrictive habilita- tion facilities. On its face, the section merely says that states may not discriminate as to existing facilities; it does not require that the states take affirmative action. Thus in Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), the Supreme Court noted that section 504 dia aot require the state to create new facilities suit- able for training nurses with hearing disabilities. After a thorough examination of the statutory structure and implementing regulations, the Court stated: If these regulations were to require substantial ad- justments in existing programs beyond those neces- sary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute. . .. Section 504 does not refer at all to affirmative action, and except as it applies to federal employers it does not provide for implementation by adminis- trative action. A comparison of these provisions demonstrates that Congress understood accommoda- tion of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so. Id. at 2369 (footnote omitted). The conclusion that section 504 imposes no such obli- gation in this case is supported by the legislative history. Most of the controversy surrounding the Rehabilitation Act concerned provisions other than section 504. As a result, legislative remarks about the purpose of that sec- tion are scarce and tend to restate the obvious. The pro- 74a vision’s major thrust clearly is directed toward ensuring the handicapped equal access to federally-funded pro- grams. See, e.g., 118 Cong. Rec. 32,310 (Sept. 26, 1972) (remarks of Senator Humphrey); id. at 32,294 (Sept. 26, 1972) (remarks of Senator Cranston) ; Sen. Rep. No. 93-318, 93d Cong., 1st Sess., reprinted in 2 U.S. Code Cong. & Admin. News 2076, 2123, 2143 (1973). Moreover, the structure and thrust of the Rehabili- tation Acts of 1972 and 1978, of which section 504 was only one small part, undercuts plaintiffs’ contention. The Acts essentially are funding statutes. They repre- sent comprehensive attempts to deal with the plight of the handicapped, especially the most severely handi- capped, see 29 U.S.C. § 701, through a system of federal grants to states for the development of the enumerated programs. See id. §§ 720, 721, 762. One of the clear pur- poses of these grants was to offer states financial incen- tives to deinstitutionalize the mentally retarded. See, e.g., 118 Cong. Ree. 32,305 (Sept. 26, 1972) (remarks of Senator Javits) ; id. at 36,414 (Oct. 14, 1972) (remarks of Congressman Badillo). Given the emphasis in the Rehabilitation Act of 1972 and 1973 on encouraging the states to deinstitution- alize, I do not believe that there should be read into section 504, included in both those acts, a legislative mandate for deinstitutionalization. The carefully tailored system of programs and grants in the legislation as a whole belies any congressional intention to impose an absolute duty to provide the least restrictive treatment. Plaintiffs offer two less expansive arguments in sup- port of the district court’s holding that section 504 man- dates Pennhurst’s closing. First, they argue that section 504 requires the termination of a federal program de- signed exclusively for the handicapped if that program prevents its beneficiaries from participating in other fed- 75a eral programs. This is quite novel. No court that has granted relief under section 504 has even implied that such an interpretation is possible. See, e.g., Leary V. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handi- capped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977) ; Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). Moreover, I believe that plaintiffs’ argument cannot be justified on this record. Plaintiffs allude throughout their briefs to a variety of federally-funded programs for the handicapped that are unavailable to Pennhurst’s residents. The district court heard 32 days of testimony and argument in this case. The parties took 27 depositions. The exhibits in- cluded 108 photographs, a three-hour film, and 288 documents. An examination of this massive record does not reveal, however, a single federally-funded program from which Pennhurst residents have been excluded. Indeed, the United States intervening on behalf of plaintiffs, concedes that the record fails to demonstrate that any programs using such funds were available to anyone in the five-county area served by Pennhurst. Thus plaintiffs’ first argument is without merit. Plaintiffs alternatively argue that Pennhurst violates section 504 by denying its residents the benefits of Pennsylvania’s program of community living arrange- ments. This denial allegedly is based impermissibly upon the severity of the handicaps of those confined at Pennhurst. Significantly, Pennsylvania accepts no federal funds for the operation of its community living arrangements, choosing instead to finance the program out of its own revenues. - In 1976, Pennsylvania served 2069 persons in community living arrangements, 483 of whom were from the five-county region served by Pennhurst. Dur- ing 1976, Pennhurst itself served approximately 1200 76a residents. As places have become available in com- munity living arrangements in the five-county area, Pennsylvania has filled half of them with residents of Pennhurst and half with other retarded individuals. Plaintiffs would have us hold that this system vio- lates section 504 because only the most severely handi- capped persons are placed at Pennhurst. Almost fifty percent of Pennhurst’s residents are profoundly re- tarded, having I.Q.’s of less than 20. Almost three quar- ters are at least severely retarded, with I.Q.’s of less than 36. In addition, many of the residents are multiply handicapped. Although, given proper facilities, all of these persons could be served “in the community,” no une disputes that such severely handicapped persons pose difficult placement problems. Moreover, plaintiffs do not contend that Pennsylvania has now, or has ever had, adequate facilities in the community to cope with all, most, or even many of Pennhurst’s present residents. Plaintiffs’ only argument is that such facilities are fea- sible and that Pennsylvania violates section 504 by fail- ing to develop them. Presumably, such an expanded program of commu- nity living arrangements could be funded by federal grants under Titles XIV and XX of the Social Security Act, 42 U.S.C. §§ 1351 et seqg., 1397 et seg. Four states, Michigan, Minnesota, Nebraska, and Oklahoma, pres- ently finance such programs under these titles. Section 504, however, cannot be read as requiring states to ac- cept federal funds for such a program. On the contrary, in his comments on the Rehabilitation Act of 1972, which included a provision identical to section 504 as enacted, Congressman Badillo specified that the Act would allow states “to explore the possibility of using, as much as possible, 4 community-based treatment ap- proach... .” 118 Cong. Rec. 36,414 (Oct. 14, 1972). Plaintiffs now argue that Pennsylvania, which has chosen 77a to use its own funds to “explore the possibility of us- ing’ community living arrangements, violates section 504 in failing to embrace that treatment approach com- pletely and immediately. Because the legislative history reveals no more than a congressional intent to encour- age deinstitutionalization, I believe that such a conclu- sion is untenable. Therefore, I reject each of plaintiffs’ arguments that institutionalization of the mentally retarded at Penn- hurst violates section 504. Because that section supports neither the plaintiffs nor the majority, I must proceed to consider the other bases for the district court’s order. C. Pennsylvania Law The majority holds that Pennsylvania’s Mental Health and Mental Retardation Act of 1966 (MH&MRA), 50 P.S. $$ 4101 et seqg., grants the retarded a statutory right to treatment and that the plaintiffs have a pri- vate cause of action under the statute to enforce that right. The majority seems to implicitly rest its least re- strictive treatment rule in part on Pennsylvania law. I will assume that the residents of Pennhurst have a statutory right to some kind of treatment under the 1966 legislation. I cannot say as a matter of Pennsylvania law, however, that whatever treatment the residents are en- titled to receive must be provided in the least restrictive environment possible. The question is: If the deplorable conditions evidenced in the record were eliminated at Pennhurst, would some individual still have an absolute right as a matter of state law to be placed in a less re- strictive setting? Initially, as with any implied cause of action, the remedy must be tied to violation of an express statutory provision. General language may not obscure the need for concrete imposition of a specific duty. Article II of the 78a MH&MRA sets out the cuties of the state and nowhere does it mention a duty to provide the least restrictive treatment regardless of fiscal concerns. Moreover, the structure of the MH&MRA itself im- plies that Pennsylvania’s General Assembly, in enacting the legislation, contemplated no such absolute right to treatment outside a properly run institution if such were the least restrictive environment imaginable. A major purpose of the MH&MRA was to ensure proper division of responsibilities between the state’s Department of Public Welfare (DPW) and local authorities, primarily cities and counties. See 50 P.S. §§ 4102, 4202(a), 4301 (d), 4507(a) (1). This division of authority indicates that DPW was to operate regional facilities like Penn- hurst while the localities were to concentrate on com- munity-based services such as after-care. The very fact that both exist side by side in the legislative scheme without any language about placement in one or the other belies any theory that the General Assembly in- tended an absolute right to one to the exclusion of the other. Buttressing my conclusion that the MH&MRA con- templated institutionalization of the mentally retarded are statistics, cited by the district court, indicating that institutionalization as a means of providing for the re- tarded was on the rise through 1966, the year of the MH&MRA’s enactment. See 446 F. Supp. at 1300n.7. The record shows that only in 1970 did Pennsylvania be- gin to explore the possibility of deinstitutionalizing Pennhurst’s residents. See 446 F. Supp. at 1312. I believe it would be anomalous to attribute to the General Assem- bly of 1966 an intention to require treatment of the men- tally retarded in a community setting because it would be less restrictive than an institution when the state did not even consider community treatment until 1970. 79a Nor do I believe that intervening changes in attitudes toward habilitation of the mentally retarded allow this court to reject the legislative judgment, implicit in the MH&MRA, that institutions, if properly run, can provide the mentally retarded with the requisite services. The General Assembly has not indicated that it has reached a contrary conclusion. Furthermore, the only Pennsyl- vania courts to consider analogous issues seem to have assumed that institutionalization is permissible without examining it as the least restrictive alternative under the MH&MRA. For example, in Hoolick v. Retreat State Hospital, 24 Pa. Commw. Ct. 218, 354 A.2d 609 (1976), aff'd mem., 476 Pa. 317, 382 A.2d 739 (1978), the Com- monwealth Court rejected a claim that the MH&MRA required DPW to continue to operate the Retreat State Hospital. In so ruling, the court noted that the hospital was “an institution within the framework of mental health facilities operated by the Commonwealth. ...” Jd. at 220, 354 A.2d at 610. According to the Commonwealth Court: The manifest object of the General Assembly in enacting the Mental Health and Mental Retardation Act of 1966 was to create a cooperative State-county (or multi-county) program across the Common- wealth for those who suffer mental health or mental retardation afflictions. . . . To retard or restrict State action in the operation of such a program, a clear specific legislative intent that a particular mental health facility shall remain functional would be required. Id. at 224, 354 A.2d at 612. Thus under Hoolick, the legislature gave the DPW wide latitude in choosing what type of an institution best suits an individual. Moreover, the state’s duty to treat individuals is sub- ject to the financial limitations of its own treasury. Cf. 80a County of Allegheny v. Commonwealth, 33 Pa. Commw. Ct. 267, 381 A.2d 1014 (1978) (state’s liability to county not absolute). Indeed, in one case, the county placed an individual in a private home; because this was not au- thorized by the Act, the state was not liable to the county for the expenditure. Jn the interest of Wayne K., 34 Pa. Commw. Ct. 10, 382 A.2d 989 (1978). At the least, then, the state right to treatment does not include a right to placement in a private home, even if that is the least re- strictive environment. Absent legislative action indicating that a particular type of facility, acceptable to the General Assembly in 1966, no longer passes legislative muster, I cannot pre- dict that a Pennsylvania court facing this same question would hold that an individual has an absolute right to treatment in another less restrictive institution. I would hold only that, according to Pennsylvania law, any right the mentally retarded may have under the MH&MRA to habilitation can be satisfied in an institutional setting properly maintained. II. Constitutional Basis A. Due Process The final question presented by the plaintiffs is the constitutionality of the state statutory scheme of insti- tutionalizing people in Pennhurst. The district court held that retarded persons, once admitted to a state facility, “have a constitutional right [under the due proc- ess clause] to be provided with minimally adequate habilitation under the least restrictive conditions con- sistent with the purpose of the commitment.” 446 F. Supp. at 1319. Having found such a right, the district court further held that Pennhurst, because it is an in- stitution, could never provide minimally adeguate habili- tation, and that Pennhurst’s residents were entitled to be 8la placed in community living arrangements. 446 F. Supp. at 1318, 1320. The majority holds that some individuals may re- main in Pennhurst, thus rejecting the district court’s thesis. It purports to do this on statutory grounds, thereby avoiding the constitutional issue. The majority’s apparent justification for failing to reach the constitu- tional issue is that the legislation involved here does not require less than is mandated by the Constitution. The majority merely makes this statement without explain- ing why its unarticulated view of the Constitution is cor- rect and the district court’s theory is incorrect. If, as I believe, the statutes in question provide no cause of ac- tion to enforce a generalized absolute right to least re- strictive treatment, then the only remaining basis for the majority’s holding is the Constitution. My approach presents two questions. First, decide what are the permissible governmental purposes that support civil commitment of the mentally retarded. Sec- ond, determine whether those purposes are sufficient to support institutionalization or whether the state has a constitutional duty to employ means less restrictive of individual freedom. In finding a constitutional right to habilitation, the district court relied on a series of cases that grant non-dangerous mental patients who are involuntarily committed a right to psychiatric treatment. The seminal right-to-treatment case was Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966), which dealt with a statutory right to treatment. In dictum, the court indicated that the fail- ure to treat a mental patient who had been committed by the state was sufficiently “shocking” to violate due proc- ess guarantees. See id. at 455. A number of courts have expanded upon Rouse’s dictum. The Court of Appeals for the Fifth Circuit of- 82a fered the strongest defense of the right to treatment in Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds and remanded, 422 U.S. 563 (1975), and Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), aff’'g, Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971) (Stickney I). Donaldson noted that involun- tary confinement must be justified by a legitimate state purpose to survive scrutiny under the due process clause. See Jackson v. Indiana, 406 U.S. 715, 738 (1972). His- torically, civil commitment had been based on one of three grounds: danger to self, danger to others, or need for treatment. See id. at 737. Because uncontradicted evidence demonstrated that Donaldson was dangerous neither to himself nor to others, the only legitimate basis for his confinement was the provision of treatment. Ac- cording to the Fifth Circuit, the state of Florida, which confined Donaldson to treat him, had a constitutional duty to provide him with adequate and effective treat- ment, the “quid pro quo” for his confinement. See 493 F.2d at 518-27.* The first case to apply the right-to-treatment rationale to the mentally retarded was Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) (Stickney II), affirmed in relevant part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Having determined in Stickney I that persons involuntarily committed to mental institu- tions had a right to treatment, the district court felt com- pelled to extend an analogous right to the mentally retarded. See 344 F. Supp. at 390.* 3The Supreme Court in Donaldson stopped short of endors- ing the quid-pro-quo approach. See O’Connor v. Donaldson, 422 U.S. 563, 576 (1975). Our court has specifically reserved ruling on the theory. See Scott v. Plante, 532 F.2d 939, 947 (3d Cir. 1976). *Since 1972, a number of courts have followed Stickney I] and have held that mentally retarded persons confined in state-run institutions have a constitutional right to habilitation. See, e.g., Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aff’d in part 83a I can assume, without deciding, that a non-dangerous individual committed by the state because of an al- leged mental illness has a right to receive psychiatric treatment for his or her condition. I do not agree, however, with the assertion made in Stickney I] that, in this regard, “no viable distinction can be made between the mentally ill and the mentally retarded.” 344 F. Supp. at 390. On the contrary, as the Supreme Court has noted in another context, “careful attention must be paid to the differences between [the] mentally ill and [the] mentally retarded. .. .” Kremens v. Bartley, 481 U.S. 119, 135- 36 (1977). In particular, I believe that the government’s purpose in depriving Pennhurst’s residents of their liber- ty is quite different from the government’s purpose in depriving a non-dangerous, mentally ill person of his or her liberty. As noted earlier, the Supreme Court has identified three conditions that might justify civil commitment: danger to self, danger to others, and need for treatment. See Jackson v. Indiana, 406 U.S. 715, 737 (1972). In O’Connor v. Donaldson, 422 U.S. 568, 574 n.9 (1975), the Supreme Court briefly examined the “danger to self” rationale and indicated that it considered inability to care for oneself a permissible basis for civil commitment: Of course, even if there is no foreseeable risk of self-injury or suicide, a person is literally “dan- gerous to himself” if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends. No one disputes that most, if not all, of Pennhurst’s resi- dents are dangerous to themselves in this sense. Severely and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). In each of these cases, however, the court concluded or assumed that the state could provide the necessary habilitation in an institu- tional setting. See, e.g., Gary W. v. Louisiana, 437 F. Supp. 1209, 1217-19 (E.D. La. 1976). 84a or profoundly retarded, often with multiple handicaps, the residents obviously are unable to fend for themselves. Nor, as the district court’s findings on voluntariness make clear, are there “willing family members or friends” available to shield them from the “hazards of freedom.” I believe that the residents’ inability to live indepen- dently distinguishes this case from Donaldson and other cases granting non-dangerous mental patients a right to treatment. Moreover, I believe that the state’s willing- ness to provide the residents with such necessities as food, shelter, medical care, and supervision for which the residents have no other source, forms an adequate basis for some state-imposed restrictions on their liberty. I am left, of course, with the question whether the residents’ need for care and supervision justifies the magnitude of the restraint imposed by institutionaliza- tion. The Court of Appeals for the Fifth Circuit has argued that it does not. In Wyatt v. Aderholt, 503 F.2d 1305, 1313 (5th Cir. 1974) (affirming Stickney I and Stickney II), the court emphasized that commitment en- tailed “ ‘massive curtailments’ of individual liberty.”’ The court continued: Against the sweeping personal interests involved, [the state of Alabama] would have us weigh the state’s interest, and the interests of the friends and families of the mentally handicapped in having pri- vate parties relieved of the “burden” of caring for the mentally ill. The state interest thus asserted may be, strictly speaking, a “rational” state interest. But we find it so trivial beside the major personal in- terests against which it is to be weighed that we cannot possibly accept it as a justification for the deprivations of liberty involved. Several factors persuade me to reject Wyatt’s rea- soning in the context of this case. First, that decision 85a preceded the Supreme Court’s decision in Donaldson. As noted, the Supreme Court there indicated that the need to provide mentally handicapped persons with cus- todial care could, under some circumstances, support civil commitment. Moreover, to the extent that Wyatt’s rea- soning survived Donaldson, the realities of Pennhurst as recorded in the findings of the district court preclude its application in this case. The vast majority, almost 90 per cent, of Pennhurst’s residents are 18 years of age or older. Under Pennsylvania law the duty of parents or relatives to contribute to the support of an unmarried person who has been committed or who is receiving services under the MH&MRA terminates upon that person’s attainment of 18 years of age. See 50 P.S. § 4502. Moreover, relatives and friends who will ac- cept responsibility for the care of Pennhurst’s residents either do not exist or are unwilling or unable to do so. The district court found that 43 per cent of the residents have had no family contact in the past three years. The record does not show what percentage of the residents have family members still living. See 446 F. Supp. at 1302 & n.16. Even as to those residents under the age of 18, the district court found that Pennhurst “was and is their only alternative,” id. at 1311 (footnote omitted), and that “they have no place else to go,” id. at 1318. Given these findings, defendants are doing far more than relieving otherwise willing and able relatives of the burden of caring for the residents; they are acting as the residents’ only source of food, shelter, supervision, and medical care. Far from being “trivial,”’ these services are a matter of life or death to the residents. See generally New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 759-60 (E.D.N.Y. 1973), consent judgment approved, 393 F. Supp. 715 (E.D.N.Y. 1975), affd, 596 F.2d 27 (2d Cir.), cert. denied, 48 U.S.L.W. (Oct. 2, 1979). But see Gary W. v. Louisiana, 86a 437 F. Supp. 1209, 1217 (E.D. La. 1976) (all members of plaintiff class were minor children). Having concluded that the residents’ need for care and supervisicn can support significant restrictions on their personal liberty, it nevertheless must be decided whether Pennsylvania must provide for the residents’ needs in a manner least restrictive of those liberties, or whether it is sufficient that the restrictions be rationally related to the purpose of confinement. The district court here felt that Shelton v. Tucker, 364 U.S. 479 (1960), re- quired use of less drastic means in general, and commu- nity living arrangements in particular. In Shelton the Supreme Court considered an Arkansas statute requir- ing every teacher to file an arinual affidavit listing all or- ganizations to which he or she belonged or contributed. In striking down the requirement as an unconstitutional abridgement of first amendment freedoms, the Court held that even though the governmental purpose be legiti- mate and substantial, that purpose cannot be pur- sued by means that broadly stifle fundamental per- sonal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. Id. at 488 (footnotes omitted). It is quite possible that the Supreme Court has al- ready rejected the contention that Shelton’s less-drastic- means analysis applies to the conditions of civil commit- ment. See State v. Sanchez, 80 N.M. 438, 457 P.2d 370 (1968) (mentally ill), dismissed for want of a sub- stantial federal question, 396 U.S. 276 (1970). See gen- erally Mandel v. Bradley, 432 U.S. 173 (1977) (per curiam); Hicks v. Miranda, 422 U.S. 332 (1975); Halderman v. Pennhurst State School & Hospital, 446 87a F. Supp. at 1319 n.55; Patton v. Dumpson, 425 F. Supp. 621, 624 (S.D.N.Y. 1977). Nevertheless, I believe that the importance of this issue merits a full examination of plaintiffs’ argument. In two cases dealing directly with the conditions and duration of civil confinement the Supreme Court has not been required to reach the question whether a state must provide its mental health services in a manner least restrictive of fundamental liberties. In Jackson v. Indi- ana, 406 U.S. 715 (1972), the Court examined the constitutionality of a statutory scheme that permitted indefinite, and probably permanent, commitment of a person adjudged incompetent to stand trial on criminal charges. In holding that this procedure deprived the petitioner of due process of law, the Court reasoned that [a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id. at 738. Similarly, in O’Connor v. Donaldson, supra, 422 U.S. at 576, the Court explored the minimum pro- tection afforded by due process, holding that “a State cannot constitutionally confine without more a _ non- dangerous individual who is capable of surviving safety in freedom ... .” In both Jackson and Donaldson the challenged restrictions were invalidated under this mini- mal scrutiny. But by employing the phrases “at the least” and “without more,” the Supreme Court left open the possibility that it might apply stricter scrutiny in a proper case. Recently, in Bell v. Wolfish, 99 S. Ct. 1861 (1979), the Supreme Court considered the constitutional require- ments for the conditions under which pre-trial detainees may be confined. The plaintiff detainees, who were con- fined solely because of their inability to post bail, com- plained, inter alia, that the practice of assigning two detainees to a cell designed for one person denied them 88a due process of law. In upholding the constitutionality of “double-bunking,” the Supreme Court declined to apply the “compelling necessity” test that had been adopted by the Court of Appeals for the Second Circuit. Instead, the majority focused on whether double-bunking constituted infliction of punishment, and phrased the standard of review as whether ‘a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective... .” Id. at 1874. Bell, although dealing with the conditions of non- criminal confinement, is not dispositive of the standard of review to be applied in this case. The plaintiffs in Bell did not contend that double-bunking, as opposed to single-bunking, was unduly restrictive of any express constitutional guarantee. See id. at 1871. In this case, however, plaintiffs argue that institutions, when com- pared with community living arrangements, are more restrictive of such fundamental rights as freedom to travel and freedom of association. Assuming this to be the case, I will consider the applicability of some sort of less-drastic-means analysis. The Supreme Court first formalized less-drastic-means analysis in Shelton v. Tucker, 364 U.S. 479, 488 (1960). Prior to that decision, the consideration of less restrictive alternatives was at least implicit in a number of opinions. See The Supreme Court, 1960 Term, 75 Harv. L. Rev. 40, 129 (1961) (collecting cases). Those earlier de- cisions, however, tended to treat less drastic alternatives as only one consideration in the overall assessment of an enactment’s reasonableness. Compare Shelton v. Tucker, supra, at 488-90, with id. at 493-94 (Frankfurter, J., dissenting). In Shelton the Court seemed to hold that the existence of less drastic means would almost always in- validate a statute that impinged upon “fundamental per- sonal liberties.” See id. at 488. 89a Since 1960, application of less-drastic-means analysis has been far from uniform. See, e.g., United States V. Robel, 389 U.S. 258, 267 (1967) (“It is not our function . . . to determine whether an industrial security screen- ing program exh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2229%3A1. Public record. Not legal advice.