Petition for Writ of Certiorari — Reggie B. v. Bush
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
OILED (")
Q3 351 SEP 2 2003,
IN THE
Supreme Court of the Gnited States
>Pr<¢
REGGIE AND REBECCA B., TAMMY G.,
ELAINE R. and RACHEL C.,
Petitioners,
Vv.
JEB BUSH, as the Governor of the State of Florida, ef 2/.,
Respondents.
On Petition For A Writ of Certiorari
To The United States Court of Appeals
For The Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
: Karen Gievers Marcia Robinson Lowry
GIEVERS, P.A. Counsel of Record
524 East College Avenue, Suite 2 Eric E. Thompson
Tallahassee, Florida 32301 Douglas C. Gray
850-222-1961 CHILDREN’S RIGHTS, INC.
, 404 Park Avenue South
Eleventh Floor
New York, New York 10016
212-683-2210
(Additional Counsel On the Reverse)
William H. Fraser
LEGAL AID SOCIETY OF
PALM BEACH COUNTY, INC.
423 Fern Street, Suite 200
West Palm Beach, Florida 33401
561-655-8944
Bernard P. Ferlmutter
Carolyn Salisbury
UNIVERSITY. OF MIAMI
SCHOOL OF LAW _
5915 Ponce de Leon
Boulevard #28
Coral Gables, Florida 33146
305-284-3123
|
Christina A. Zawisza
CHILD ADVOCACY CLINIC
THE UNIVERSITY OF MEMPHIS
SCHOOL OF LAW
109 North Main Street, 2nd Floor
Memphis, Tennessee 38103
901-523-8822
ROY WASSON
210 South Dixie Highway
Suite 450
Gables One Tower
Miami, Florida 33146
305-666-5053
Deborah A. Schroth
FLORIDA LEGAL SERVICES
126 West Adams Street, #502
Jacksonville, Florida 32202
904-355-5200
i
QUESTION PRESENTED
Petitioners are foster children in the custody of the State
of Florida seeking to compel executive branch officials of the
state to treat them in accordance with the United States
Constitution. ~- The district court determined that Younger
abstention was required due to petitioners’ periodic review
proceedings in state juvenile court and the Eleventh Circuit
affirmed. The question presented for review is:
Whether the court of appeals’ Younger abstention ruling
was improper where the prospective injunctive and declaratory
relief sought by petitioners is directed solely at executive
branch officials and will not enjoin or otherwise result in
federal court control over periodic state juvenile court review
proceedings in which petitioners are otherwise unable to
vindicate their constitutional rights?
li
PARTIES TO THE PROCEEDING
Petitioners Reggie and Rebecca B., Tammy G., Elaine
R. and Rachel C. (plaintiffs-appellants below) — all foster
children who have been adjudicated dependent and placed in
_ the custody of the State of Florida’s Department of Children
and Family Services (the “Department”) — are the five of
twenty-two original named plaintiff foster children who have
not settled all of their claims or exited the foster care system
since the filing of the amended complaint in August 2000.
Petitioners, on behalf of themselves and a putative class of
Florida foster children, allege widespread constitutional
deficiencies in the state’s provision of foster care services and
seek prospective declaratory and injunctive relief to remedy
these systemic deficiencies and protect them from ongoing
harm.
Respondents (defendants-appellees below) — the Florida
executive branch officials who operate the state’s foster care
system — are sued in their official capacities only. They are
Governor Jeb Bush; Commissioner of the Department, Jerry
Regier (formerly Kathleen Kearney); and thirteen of the
Department’s fourteen sitting District Administrators: Charles
Bates, Robert Williams, Ester Tibbs, Nancy Dreicer, Lynn
Richard, Jr., David Dennis, Mike Murphy, Ted Simpkins,
Charles Hood, III, Ron Zychowski, Beth Englander, Cynthia
Schuler, and Vern Melvin.
ili
TABLE OF CONTENTS
Page
REET RR PERE PERRI om a ener i
Parties to the Proceeding ......... | I auaaaibemdasacstininns iad aeibateanaisitced il
a iceenecebsssinehnnbesanaunubaneneunintaason Vv
POUROR TOF GR Wit OF CORIOLANT .......cescssececsoccesscevesvensvsssenseees l
Opinions Below. ......... ORES EO ae LOO De l
IESE EEL See eo en ae er a l
Constitutional and Statutory Provisions Involved............... 2
a cca chasis snsnnnpngnasnennctnnenwnvaiionsiakebans 2
A. Introduction ..................00 aa aa 2
B. The State’s Foster Care System...................0s0000 4
C. Petitioners’ Federal Claims and Relief Sought ....9
BP, PRIS TI on sss nscesesccesvecsssesccscescessocesees 11
Reasons for Granting the Petition ................::cccesseeeesseeeeees 14
iV
1. The Writ Should Be Granted To Correct
The Eleventh Circuit’s Extension Of Younger
Abstention Beyond This Court’s Prior
EIN isicasiancnsasatosichimesitbadiaiitianitapsemiedtuiiiuibiadebenas 15
2. The Writ Should Be Granted To Resoive
Splits Among The Circuit Courrts.................... 23
Rep UITIIIDAisisnslcsctsictniiescletcelaaedebpecselibaianaliaianiaicnakdadaeaduaataeliiban 29
Appendix A (court of appeals opinion).................::cce8 la
Appendix B (district court opinion) ...............::.cseeeeeee 45a
Appendix C (rehearing denial) ...................cc:cccssseeeseeeeees 95a
Appendix D (excerpt from amended complaint)............. 97a
Appendix E (provisions involved) ...............::cssseeeseeees 10la
Peet bent, OR ak et ne ee ee ee a |
——<—
CASES:
Boyle v. Landry, 401 U.S 77 (1971)..........ccccccsscsssescsseceeees 18
Crawley v. Hamilton County Com'’rs,
FOR Fe 2 Ce, Fa ivccisnscscsrstncaitiereeanian 24
Cohens v. Virginia, 19 U.S. 264 (1821) ....cecceeeeeeeeseeeeeee 15
Colorado River Water Conservation Dist. v. United States,
SOG UD. FO CES wisccsvicunesitnisestiieieatamlgaanaaaaae 16
Dep't Health and Rehab. Servs. v. B. J. M,,
CSG Te. BE FRG OR, TO wiciaiccernaciccasnvneamanan 8,9
Dep't of Children & Family Servs. v. I. C.,
742 So. 2d 401 (Fla. Dist. Ct. App. 1999)... 9,10
Dep't of Children and Families v. J. H.,
831 So. 2d 782 (Fla. Dist. Ct. App. 2002)... cece 10
Doran v. Salem Inn, Inc., 422 U.S 922 (1975)...... 17, 18, 22
Green v. City of Tuscon,
255 F.3d 1086 (9th Cir. 2001) (en banc)........cccccccesseseeseess 24
vi
Henry & Rilla White Found., Inc. v. Migdall,
720 So. 2d 568 (Fla. Dist. Ct. App. 1998)..........ccseseeeeeeeees 9
Hicks v. Miranda, 422 U.S. 332 (1975) .........cccssessseeeeeeees 18
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).........0+. 16, 18
InreR. V.,
626 So. 2d 1009 (Fla. Dist. Ct. App. 1993)... ceeeeeeeees 9
J. B. ex rel. Hart v. Valdez,
106 F.3ek 12BO CEG Cae, FBP scceccscvenssctissvccsseestermenntn 24-27
Joseph A. ex rel. Wolfe v. Ingram,
27S F.3G L253 CEO Cae. BITE) ovinssecsersensnsonsssnnsonssenents 25-27
Judice v. Vail, 430 U.S. 327 (1977) ..........cccccsscssssreeeee 17,19
Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1998)..........cceceeseeee 9
Klein v. Berk Constr. Co, 260 U.S. 226 (1922)................. 15
Kugler v. Helfant, 421 U.S. 117 (1975) .....cccccessseesseeseeees 18
L. H. v. Jamieson, 643 F.2d 1351 (9th Cir. 1981)....... 27, 28
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163 (1993) ........ eens 2
Vil
Lee v.Dep’t Health and Rehab. Servs.,
ee , eR NT 8,9
Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) ......... eee 24
Middlesex County Essex Comm. v. Garden State Bar Ass'n,
SEPT Ra Ge 0 IED siicehitebinininintiasinpiisapectinabenadaniednians 13, 16, 19
Missouri Child Care Ass’n v. Cross.,
ye Re: 21
Moore v. Sims, 442 U.S. 415 (1979) .o...ccccecesssesteeeeeees 19
New Orleans Pub. Serv., Inc, v. Council of City of
New Orleans, 491 U.S. 350 (1989) .........ccceecsseeeeeeees passim
Ohio Civil Rights Comm’n v. Dayton Christian Schs. Inc.,
Ee Se Cr taccenkstcnnessniisiapaiieninbntstinamninabianiaiiiis 19
O'Shea v. Littleton, 414 U.S. 488 (1974)............. 18, 20, 21
P. O. v. Dep't of Children and Families,
840 So. 2d 360 (Fla. Dist. Ct. App. 2003)... eee 6
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)........ 17, 19
Perez v. Ledesma, 401 U.S. 82 (1971) ...........cccseseeessereeees 18
Pompey v. Broward County,
Fe Bic ee EOE Or Oe Gs CR etintiincteianatinenmnaenncians 2
Vili
Samuels v. Mackell, 401 U.S. 66 (1971) ...........eeee 16, 18
Trainor v. Hernandez,431 U.S. 434 (1977) ................ 17, 18
Youngberg v. Romeo, 457 U.S. 307 (1982)..........ccccceeeeeeee 22
Younger v. Harris, 401 U.S. 37 (1971)..............c008 3, 16, 18
Will v. Michigan Dep't of State Police,
Pe Ses SP SD neintiinnssininnnvannniniieiaiiiiabatieniininn 21
CONSTITUTION, STATUTES AND REGULATIONS:
Pele CAME, FIER. © sccccnvescecensemeinsccrontensenmisnentiinsainiaaien 2
es MEIN a: GEMINI Cilia inosiidsd:tecincas nin tainanabeeineieaieinisaaiiasieetnaae 2
n,n er nar an ne 2
Be ss BRD GREED iicenticcrnicenctsaisimimiinnnuanioaie 2
eT a ne 8
Te Chins & SUE GED cicsttnsstvnrshincceniunoinensinnnmabianansenee 2, 11
Pe Be pe Irs acetates vitsiecnnicensassicianeanbimecaiienianiiinte 7
Fe Fee Ce ccerccetnntenenicinsnianmninsiinioniaaiiaa 6
:
«
:
¥
ix
Fla. Stat. § 39.402(1)(a) (2003) ......ssccssccsccccccsssccssessesssseseses 7
Fla. Stat. § 39.507 (2003) ...cccccccssssssssssssssssssesesscssssssssssssseees 7
Fla. Stat. § 39.521(3)(d) (2003).....cccccscsssssssssssssessssseeseeeeee 7
Fla. Stat. § 39.601 (2003) ..cccccccccssssssssssssssssussssssssssesseeeeeeee 8
Fla. Stat. § 39.601(1)(C) (2003) ...ccccssssssssssssssssssessseseseeesees 6
Fla. Stat. § 39.603(2) (2003) ..cccccccsssssssvecssssssssssssssssssssssssse 8
Fla. Stat. § 39.701 (2003) ...ccccccccsscccccssssssssssssescessesevsssssseees 8
Fla. Stat. § 39.701(1)(b) (2003)....scsscccsscscsssseseccssssssvsssssseees 8
Fla. Stat. § 39.703 (2003) ......scccssscssscsccscsssssssseseeleeeensssssssees 8
Fla. Stat. § 39.81 1(8) (2003) ..ccccsssscccscccsssssssesessesssssnsesssnsees 7
Fla. Stat. § 39.802 (2003) ...cccccccscscsssssssssesssssssessssessesesesseees 7
Fla. Stat. § 402.72 (2003) ..scccsccccssccssssssssssssssssesessssssnssssssnees 6
Fla. Stat. § 402.731(1)-(2) (2003) ..ccccccsssssssssssesecssssseseseeee 6
Fla. Stat. § 409.145 (2003) .....cccscccccssssssssssssssseessevesssesees 5, 6
Pe EB a Sad GOD eocicncecnssencnnsesernennneenensntiopiounens 6
Pim, DOME. 6 SOG. ETS CRO) arse essvenisscsisvsnnsnnsvcnrsesensesienssssonnies 6
Fla. Admin. Code §§ 65C-13.009-11 (2003) ......... cece 6
]
PETITION FOR A WRIT OF CERTIORARI
Petitioners, on behalf of themselves and a putative class
of Florida foster children, respectfully petition for a writ of
certiorari to the United States Court of Appeals for the Eleventh
Circuit, to review that court’s judgment and opinion affirming
the decision of the District Court for the Southern District of
Florida to abstain from adjudicating petitioners’ constitutional
claims.
OPINIONS BELOW
The opinion of the Eleventh Circuit affirming the
district court’s decision to abstain (App. 1a-44a) is reported at
329 F.3d 1255. The per curiam order of the court of appeals
denying the petition for rehearing (App. 95a-96a) is unreported.
The order and opinion of the district court (App. 45a-94a) is
reported at 180 F. Supp. 2d 1321, and the underlying report and
recommendation of the magistrate judge that the district court
not abstain from hearing petitioners’ claims is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
May 8, 2003. Rehearing was denied on June 13, 2003. The
jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Reprinted in the appendix to this petition are the First,
Ninth and Fourteenth Amendments to the United States
Constitution; 42 U.S.C. § 1983 and 28 U.S.C. § 1343(b); and
pertinent provisions of the Florida Constitution and Florida
Statutes-(App. 101a-123a).
STATEMENT OF THE CASE
A, Introduction.
Petitioners are foster children who have been removed
from their homes and placed into the custody of the state and
who are, as a result, wholly dependent on the government for all
aspects of their health and well-being. Petitioners allege that
respondents, their legal custodians, have failed to satisfy their
constitutional obligations to protect petitioners from harm while
in state custody and to meet their basic needs for food, clothing,
shelter, medical, educational and other necessary services.' As
alleged by petitioners, respondents operate a deficient foster
care system that gravely harms the very children it is supposed
to protect. Specifically:
e Respondents have failed to recruit and develop
sufficient foster and adoptive placements, resulting in
overcrowding and inherently dangerous living
' For purposes of this petition, the facts asserted in petitioners’ amended
complaint are to be deemed true. See Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165 (1993);
Pompey v. Broward County, 95 F.3d 1543, 1548 n.6 (1 1th Cir. 1996).
3
environments for children (see Am. Compl. 4 142-44,
151-53);
e Respondents have failed to hire and properly train
sufficient caseworkers, the result being that foster
children are inadequately supervised and are kept in
crowded and unsafe homes and institutions (id. J§ 146-
148);
e Respondents unnecessarily move foster children from
placement to placement and separate them from their
siblings who are also in foster care custody, resulting in
emotional and psychological deterioration to the
children (id. J] 157-60); and
e Respondents deny basic services to foster children in
their custody, even after determinations of need made
by the Department itself (id. J] 164-67).
The result is a statewide system that, rather than protecting
damaged children, inflicts further harm on them. Petitioners
seek prospective injunctive and declaratory relief requiring
respondents to remedy these and other systemic failures. To
date, however, petitioners have been barred from pursuing their
federal claims in their chosen federal court forum by virtue of
the district court’s and the Eleventh Circuit’s unprecedented
expansion of the abstention doctrine of Younger v. Harris, 401
U.S. 37 (1971).
The lower court, affirmed by the Eleventh Circuit,
granted respondents’ motion to dismiss based on Younger
abstention, holding that the prospective equitable relief sought
4
by petitioners against the solely executive branch respondents
would “interfere” with the Florida juvenile court’s periodic
reviews of petitioners’ status while in foster care. This Court,
however, has always strictly limited application of Younger
abstention to cases in which the requested relief, if granted,
would enjoin or otherwise limit the state proceedings
themselves — circumstances not at all present in this case. The
mere fact that there may be some overlap between the subject
matters encompassed by the federal and state proceedings is
not, as has seemingly been determined here by the Eleventh
Circuit, the standard by which a federal court should decline
jurisdiction lawfully conferred upon it by Congress. The ruling
of the Eleventh Circuit conflicts, at least in principle, with this
Court’s prior abstention rulings and heralds a pronounced
expansion of Younger that categorically bars foster children —
who have periodic state judicial review proceedings by virtue of
their custodial status — from pursuing their federal claims
against executive branch officials in federal court.
Respectfully, a grant of certiorari is warranted to review and
correct the Eleventh Circuit’s ill-advised extension of Younger
abstention.
As an independent ground warranting review, the court
of appeals’ decision is in conflict with other circuit court
determinations concerning the Younger “interference” standard,
and there is, moreover, a direct conflict in the circuit courts on
the application of Younger abstention to foster care reform
litigation of the type at issue here.
B. The State’s Foster Care System.
The executive branch officials in the Department, on the
one hand, and the juvenile courts, on the other, both play
phage ik elie
TS ME TRAINS RGAE TA OTM cE ABNER SPAIN ie A RE ni SA RR cE RES RE cial dpe at
bites rn
fee, *. er mo
5 -
important, though fundamentally distinct, roles in the protection
of Florida’s abandoned, abused and neglected children. It is
only the practices and inactions of the Department, not the
procedures or determinations of the juvenile courts, that are
challenged in this action.
The Department’s central obligations with respect to the
children in its care are set forth in Chapter 409 of the Florida
Statutes,” which provides that
The [D]epartment shall conduct, supervise, and
administer a program for dependent children and
their families. The services of the [D]epartment
are to be directed toward the following goals:
(a) The prevention of separation of children from
families. (b) The reunification of families who
have had children placed in foster homes or
institutions. (c) The permanent placement of
children who cannot be reunited with their
families or when reunification would not be in the
best interest of the child. (d) The protection of
dependent children or children alleged to be
dependent, including provision of emergency and
long-term alternate living arrangements.
Fla. Stat. § 409.145 (2003). The Department is exclusively
> Foster care is provided through a system of Cooperative federalism, in
which the federal government grants substantial funds to states to provide
out-of-home foster care and related services that comport with federal
standards and requirements. The state, however, creates the foster care
system’s structure, including the obligations of and limitations on the powers
and duties of the Department and of the juvenile court.
6
empowered to recruit, select, set standards for, and monitor
homes and facilities providing care to foster children in their
charge. See Fla. Stat. § 409.175 (2003); Fla. Admin. Code
§§ 65C-13.009-11 (2003). The Department manages the
services provided to foster children by private contractors
through performance standards and penalties for non-
compliance. Fla. Stat. § 402.72 (2003). And the Department
alone is responsible for ensuring that the workforce it employs
is appropriate to the task of caring for foster children, including
through its certification that the Department’s workers meet all
appropriate education, experience and training requiremenis.
Fla. Stat. § 402.731(1)-(2) (2003).? In sum, the Department
constructs and operates the foster care system.
The juvenile court exercises its own judicial
responsibilities over children in state custody. The powers and
limitations of this state court vis-a-vis foster children are set out
in Chapter 39 of the Florida Statutes. Though the juvenile court
is to “cooperate” with the Department in carrying out the
purposes of Chapter 409 (Fla. Stat. § 409.145(3) (2003)), no
statute or other authority gives the Florida courts jurisdiction to
directly regulate the Department’s operation of the foster care
system.
The juvenile court’s role begins when the child is taken
into governmental custody by the Department or by law
enforcement. Fla. Stat. § 39.402, § 409.145 (2003). Once the
> The Department is also charged with regularly monitoring every foster
child’s placement, including through face-to-face visits with the child. See
Fla. Stat. § 39.601(1)(c) (2003); P.O. v. Dep’t of Children and Families, 840
So. 2d 360, 362 (Fla. Dist. Ct. App. 2003) (failure to provide for face-to-face
contacts in child's case plan was in derogation of “statutorily mandated
duties”).
AIEEE ie Dill NEAL SDI fe iy SAY
Raia
7
Department files a petition against parents or other legal
guardians alleging a child to be dependent, i.e., abandoned,
abused or neglected (see Fla. Stat. § 39.402(1)(a) (2003)), the
juvenile court’s jurisdiction is to conduct the necessary
proceedings and to either adjudicate the child as dependent or to
dismiss the case and return the child to the parents. Fla. Stat.
§ 39.507 (2003). Ifthe court adjudicates the child dependent
and determines that the child cannot be safely placed with the
child’s parents or the home of a relative or other suitable
“nonlicensed” placement, then the chiid is committed to the
“temporary legal custody” of the Department, a commitment
that “invests in the [D]epartment all rights and responsibilities
of a legal custodian.” Fla. Stat. § 39.521(3)(d) (2003).
The custodial adjudications made in these initial
proceedings are not in any respect the subject of petitioners’
federal claims, nor are petitioners’ parents (or other legal
guardians prior to removal) parties to this case.* Petitioners do
not contend for instance that they were improperly removed
from their parents and placed into state custody, nor do they
allege that their parents were improperly denied pre-custodial
services that might have prevented their entry into state custody.
Petitioners challenge instead the deficient conditions of
custody they are subjected to by the Department’s policies and
practices after these custody adjudications have been made by
the juvenile court.’
* Petitioners’ interests in this lawsuit are represented by adult “next friends.”
See Fed. R. Civ. P. 17(c). >
* The juvenile court may eventually be called upon to conduct a termination
of parental rights proceeding in connection with a child’s case, but only if
the Department (or other party) files a petition seeking such relief. Fla. Stat.
§§ 39.701, 39.703, 39.802 (2003). As with the juvenile court’s custody
decisions, petitioners Go not seek to challenge any decisions of the juvenile
8
From the time a child enters state custody until the child
is returned home without supervision, adopted or reaches 18
years of age, the juvenile court is charged with periodically
reviewing the child’s status, usually not more than once every
six months. Fla. Stat. §§ 39.701(1)(b), 39.81 1(8) (2003).° Prior
to all juvenile court review proceedings, the Department
develops and submits to the court a case plan which details,
among other things, information about the child’s placement;
the behavioral changes the child’s parents must make to regain
custody of the child; the frequency of parent-caseworker
contacts; the “permanency” goal for the placement; and the
services to be provided to the child and the child’s family to
achieve the goal. Fla. Stat. § 39.601 (2003). The plan serves as
the principal vehicle through which the juvenile court performs
its reviews of the child’s status and the efforts being made on
his or her behalf by, among others, the Department.
The court must approve this case plan but does not have
the authority to change the document. :f the court disapproves
of the plan, it can only order the parties to make modifications
and resubmit the plan for approval. Fla. Stat. § 39.603(2)
(2003). Though the juvenile court may in certain limited
circumstance hold the Department in contempt for failing to
comply with the case plan, it cannot oversee discretionary
executive functions of the Department, including (i) specific
placement decisions, Dep’t Health & Rehab. Servs. v. B.J.M.,
656 So. 2d 906, 913 (Fla. 1995); (ii) decisions regarding staff
cas dads and staffing patterns, Lee v. Dep’t Health & Rehab.
Servs., 698 So. 2d 1194, 1196 (Fla. 1997); (iii) the
courts relating to termination of parental rights.
° The state is also required to assure at least yearly court or administrative
reviews as a condition of federal funding. See 42 U.S.C. § 675(5)(2003).
9
Department’s maintenance of adequate foster care service
arrays to meet the needs of children, id.; and (iv) general
conditions at facilities housing children, Dep't of Children &
Family Servs. v. I.C., 742 So. 2d 401, 405 (Fla. Dist. Ct. App.
1999); Henry & Rilla White Found., Inc. v. Migdal, 720 So. 2d
568, 573 (Fla. Dist. Ct. App. 1998). Even in cases where the
safety of a child is at issue, the juvenile courts have the
authority to enter only specific and limited types of relief’ and
cannot direct child welfare authorities in their systemic
policymaking, planning, and prioritization decisions. See I.C.,
742 So. 2d at 404.8
.. Petitioners’ Federal Claims and Relief Sought.
Petitioners assert that respondents are violating their
substantive due process rights by instituting and engaging in a
pattern and practice of failing to provide them with safe foster
care, placements, and necessary services and by failing to meet
” In juvenile court proceedings, the Department’s assertion of inadequate
state appropriations is a defense to any contempt order the court may seek to
levy against the Department for non-compliance with a case plan. See Dep't
of Children & Families v. J.H., 831 So. 2d 782, 783 (Fla. Dist. Ct. App.
2002) (reversing juvenile court order requiring the Department to fund
treatment of a child because the order “ignores [the Department’s] funding
issues”); Jn re R.V., 626 So. 2d 1009, 1009 (Fla. Dist. Ct. App. 1993) (“the
state judiciary lacks subject matter jurisdiction to review discretionary acts
of the executive branch affecting the use of state resources”).
* Florida’s notably robust separation of powers doctrine places off-limits to
judicial oversight, including that of the juvenile courts, discretionary
executive functions involving decision-making on fundamental questions of
policy or planning. Kaisner v. Kolb, 543 So. 2d 732, 736-37 (Fla. 1998)
(interpreting related doctrine of executive sovereign immunity from tort
liability); /.C., 742 So. 2d at 404 (precluding juvenile courts from ordering
or regulating discretionary function of executive authority).
10
their basic needs, all of which has significantly harmed
petitioners (Am. Compl. 139-90). Petitioners further claim
violations of their procedural due process rights by respondents’
failure to establish processes for an administrative hearing or
professional review of decisions that deny petitioners benefits
to which they are entitled (id. §4 191-201). Finally, petitioners
seek redress for respondents’ violation of petitioners’ First and
Ninth Amendment rights to familial association by
unnecessarily separating them from, and denying visitation
with, their siblings in state custody (id. 4] 202- 04).?
Petitioners seek, on behalf of themselves and the
putative class of children in state foster care custody: (1) a
declaration that respondents’ failures are constitutional
violations; (2) an injunction permanently enjoining respondents
from subjecting petitioners and the putative class members to
foster care practices that violate their constitutional rights;
(3) an order of appropriate remedial relief to ensure
respondents’ future compliance with the Constitution of the
United States and their provision of legally mandated services,
protection and procedures to petitioners and the putative class
members; (4) the appointment of an expert panel to “develop
and oversee the implementation of a plan for reform, which will
ensure that [respondents] protect the federal constitutional . .
rights of [petitioners] and the members of the class they seek to
represent”; and (5) the appointment of a permanent ombudsman
° The only claims germane to this appeal are petitioners’ constitutional
claims. Petitioners’ statutory claims under the Adoption Assistance and
Child Welfare Act, as amended by the Adoption and Safe Families Act; the
Early, Periodic Screening, Diagnosis and Treatment provisions of the
Medicaid Title of the Social Security Act (the “EPSDT claims”); and Title
VI of the 1964 Civil Rights Act were dismissed or settled on grounds not
relevant to this petition.
‘
NET a, Wee ee ag a
11
or children’s advocate to present the interests of petitioners and
the putative class members to respondents (App. 98a-100a).'°
D. Proceedings Below.
Petitioners brought suit pursuant to 42 U.S.C. § 1983 in
the United States District Court for the Southern District of
Florida in June 2000, filed their amended class action complaint
in August 2000, and moved in September 2000 to certify the
statewide class of all alleged or adjudicated dependent children
who were or would in the future be in the Department’s custody
and a subclass of all alleged or adjudicated dependent black
children.'’ Respondents filed various motions to dismiss the
amenaed complaint, a number of which were referred to a
magistrate judge, along with petitioners’ class certification
motion. The magistrate judge entered his report and
recommendation that the motions to dismiss be denied (except
with regard to four of the named plaintiffs who did not have
standing to assert claims under the Adoption and Safe Families
Act (the “ASFA claims”) because their parental rights had been
terminated). The magistrate judge additionally entered a report
and recommendation that a class should be certified, consisting
'° For the convenience of the Court, the “Prayer for Relief” from petitioners’
amended complaint is excerpted in Appendix D (App. 98a-100a).
'' Before responding to either the amended complaint or class certification
motion, respondents moved in the district court to require counsel to produce
documentation establishing their authority to represent petitioners and to stay
the case. The district court denied the motion in an order appointing a
guardian ad litem to report on whether prosecution of this action was in
petitioners’ best interests. On December 15, 2000, the guardian ad litem
issued a report concluding that the failures in Florida’s foster care system
had caused petitioners “real harm” and the prosecution of the lawsuit to a
final resolution was in the best interests of petitioners and the class they
sought to represent.
12
of all Florida foster children except those in Broward County
who were parties to a separate federal class action lawsuit.
Following respondents’ objections to the reports and
recommendations, on December 14, 2001, the district court
entered an order dismissing with prejudice the constitutional
claims of the plaintiffs who were less than 18 years of age (and
therefore had pending juvenile court proceedings) based on the
Younger abstention doctrine (App. 45a-94a). 2 The district
court did not rule on the class certification motion that the
magistrate judge had recommended be granted.
Petitioners filed their notice of appeal to the Eleventh
Circuit on December 31, 2001. The Eleventh Circuit affirmed
the district court’s rulings by Opinion and Order dated May 8,
2003 (App. la-44a).'° Applying an abuse of discretion
standard, the court affirmed the district court’s decision not to
exercise jurisdiction and to abstain from adjudicating
petitioners’ constitutional claims based on Younger abstention.
'2 The court also (i) dismissed with prejudice plaintiffs’ ASFA claims as
barred by the Eleventh Amendment, and (ii) dismissed with leave to replead
the EPSDT and Title VI claims which respondents and the pertinent
petitioners settled in February 2002.
13 The Eleventh Circuit first considered a number of justiciability concerns
raised by respondents and concluded that, although the claims of two of the
eleven petitioners seeking review were moot by virtue of these children
having been adopted (and thus having left state custody), the other nine
petitioners had standing to pursue their claims. The Eleventh Circuit did not
reach the application of the Eleventh Amendment to these proceedings,
dismissing petitioners’ ASFA claims instead on the grounds that the statutory
provisions upon which the claims were predicated did not provide a basis for
private enforcement (App. 6a-28a).
13
In reaching its abstention ruling, the court of appeals
applied the three-part test set forth by this Court in Middlesex
County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
432 (1982). Without explanation or citation to the record, the
Court erroneously determined that the first Middlesex prong,
_ which the court acknowledged requires not just an ongoing state
proceeding but “interference” with such proceeding, was met
because the relief sought by plaintiffs would “plac[e] decisions
that are now in the hands of the state courts under the direction
of the federal district court” (App. 37a). The court found
further that the “federal and state courts could well differ,
issuing conflicting orders about what is best for a particular
plaintiff...” (App. 37a). The court of appeals also cited as
grounds for abstention the potential for federal court relief that
“might effectively require an amendment to a child’s case plan
that the state court would not have approved . . .” (App. 37a).
Finally, the court appeared to rely in part on a misreading of the
amended complaint in reaching its abstention ruling, finding
that the mission of a group of experts that petitioners sought to
have the district court empanel to guide and advise respondents
in a reform effort (see App. 99a) was instead sought to “revamp
and reform dependency proceedings in Florida” (App. 37a-38a).
The Eleventh Circuit also found that the third prong of
the Middlesex test — the ability to raise constitutional claims in
the ongoing state proceeding — was satisfied, determining that
petitioners had not presented “unambiguous authority
establishing that the procedures available in state court
proceedings do not provide an adequate opportunity for
[petitioners] to raise their constitutional claims” (App. 41a-
42a), a determination petitioners intend to challenge should this
petition be granted, but which is not directly relevant to the
14
Court’s consideration of the need for review.“
By petition dated May 28, 2003, petitioners sought panel
rehearing of the Eleventh Circuit’s abstention ruling, principally
based on the court’s misstatement of the nature of the relief
petitioners sought. By summary per curiam order dated June
13, 2003, the panel denied the petition for rehearing (App. 95a-
96a).
REASONS FOR GRANTING THE PETITION
The Eleventh Circuit’s decision represents a dramatic
and unsound expansion of Younger abstention that raises
important issues about the interaction of the nation’s dual
system of federal and state courts. The decision turns a
narrowly-drawn exception to a federal court’s “virtually
unflagging” duty to exercise its jurisdiction into a categorical
bar to foster children in state custody seeking to enjoin
prospective violations of their constitutional rights by the
executive officials responsible for their care. The decision
conflicts in principle with three decades of this Court’s
teachings on the type of federal court interference with state
court proceedings that calls for application of Younger
abstention. The decision also conflicts directly with decisions
of other circuit courts applying the Younger abstention
“interference” standard, including those concerning application
of Younger to factually similar child welfare reform litigation.
Respectfully, certiorari should be granted to correct the
Eleventh Circuit’s expansion of the Younger doctrine far
beyond the federalism principles that justify it and to resolve the
'4 As noted by the court, the second Middlesex prong — the implication of
important state interests by the action — is not in dispute.
15
circuit conflicts on the important jurisdictional issues raised in
this case.
1. The Writ Should Be Granted to Correct the
Eleventh Circuit’s Extension of Younger Abstention
Beyond This Court’s Prior Limitations.
The Eleventh Circuit’s decision deviates far from all
prior precedents of this Court and the sound reasoning
embodied in them, distorting the threshold Younger abstention
requirement of “interference” with ongoing state court
proceedings into an empty formalism. Correction of the
judicial “under-reaching” implicit in the Eleventh Circuit’s
decision is warranted to preserve the federalism and comity
principles served by Younger abstention and to confine the
doctrine to appropriate bounds.
Within constitutional limits, Congress has the exclusive
authority to define the jurisdiction of the federal judiciary and
"federal courts lack the authority to abstain from the exercise of
jurisdiction that has been conferred.” New Orleans Pub. Serv.,
Inc. v. Council of the City of New Orleans, 491 U.S. 350, 359
(1989)(“NOPST’); Kline v. Burke Constr. Co., 260 U.S. 226,
234 (1922); Cohens v. Virginia, 19 U.S._264, 404 (1821)
(Marshall, C.J.) (“[T]o decline the exercise of jurisdiction [or]
usurp that which is not given. . . . would be treason to the
constitution”). While a federal court’s obligation to exercise its
jurisdiction does not “eliminate [its] discretion in determining
whether to grant certain types of relief’ insofar as such
discretion “was part of the common-law background against
which the statutes conferring jurisdiction were enacted,”
NOPSI, 491 U.S. at 359 (citing David L. Shapiro, Jurisdiction
and Discretion, 60 N.Y.U. L. Rev. 543, 570-77 (1985)), this
16
Court has repeatedly cautioned that the areas in which
abstention is permissible are “carefully defined,” id, and
abstention is an “‘extraordinary and narrow exception to the
duty of a District Court to adjudicate a controversy properly
before it.” Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 813 (1976) (quoting County of Allegheny
vy. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)).
Younger abstention governs one such “carefully
defined” class of cases in which authorized equitable relief may
be withheld: those in which a grant of the requested federal
injunctive or declaratory relief would interfere with ongoing
state court proceedings, implicating important state interests,
and in which the federal plaintiffs would have an adequate
opportunity to vindicate their federal claims. See NOPSI, 491
U.S. at 372-373; Middlesex, 457 U.S. at 432. In Younger v.
Harris itself, the Court, citing equitable restraint and comity
concerns, rejected an order from a federal court that restrained a
state prosecutor from proceeding with an ongoing state criminal
prosecution of the federal court plaintiff. 401 U.S. 37, 53-54
(1971). On the same day as it determined Younger, the Court
determined that a federal court may withhold declaratory relief
under the same reasoning as that set forth in Younger where the
declaratory relief at issue would have the same “practical
effect” as enjoining a pending state criminal prosecution.
Samuels v. Mackell, 401 U.S. 66, 73 (1971). In the years since
Younger and Samuels were decided, the Court has clarified that,
in addition to criminal prosecutions, Younger abstention may be
appropriate where the federal relief sought interferes with civil
enforcement proceedings “akin to a criminal prosecution,”
Huffman vy. Pursue, Ltd., 420 U.S. 592, 604 (1975) (civil
17
nuisance proceedings),'> and even to “civil proceedings
involving ceriain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions,” NOPSI,
491 U.S. at 368, such as orders relating to the enforcement of
judgments and contempt proceedings.'® This Court has always
maintained, however that there be unequivocal interference
with state court proceedings for Younger abstention to apply.
Importantly, Younger abstention does not permit federal
courts to decline to exercise lawfully conferred jurisdiction over
cases merely because parallel federal and state court
proceedings address overlapping, or even the same, subject
matters. See Doran v. Salem Inn, Inc., 422 U.S. 922, 928
(1975) (“the interest of avoiding conflicting outcomes in the
litigation of similar issues, while entitled to substantial
deference in a unitary systerm, must of necessity be subordinated
to the claims of federalism”). It is not enough that a federal
court’s disposition of a case “may well affect, or for practical
purposes, pre-empt, a future . . . [or] even pending [] state court
action. . . . there is no doctrine that the availability or even the
pendency of state judicial proceedings excludes the federal
courts.” NOPSI, 491 U.S. at 372.
Rather, what is required to trigger the Younger
exception is a request for injunctive or declaratory relief that
would result in the federal court exercising control over a state
judicial proceeding or over the state courts themselves. Thus,
'S See also Trainor y. Hernandez, 431 U.S. 434 (1977) (civil proceedings
seeking attachment and return of funds allegedly obtained by welfare fraud).
'© See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (civil judgment
enforcement proceedings); Judice v. Vail, 430 U.S. 327 (1977) (contempt
proceedings relating to post-judgment enforcement subpoenas).
18
every case in which this Court has applied Younger has
involved remedies that would have the effect of putting a halt to
state court proceedings. The means by which this federal
control over the state court action is exercised has varied. In the
most common scenario — present in eleven of this Court’s
fifteen affirmative Younger abstention cases — the federal
plaintiff seeks to directly enjoin (and in almost all of these
cases, does in fact obtain an injunction of) state court judges,
prosecutors, law enforcement officers and even court clerks
from continuing with the prosecution of state court proceedings
they are charged with conducting, often at the same time
launching a facial attack on the constitutionality of the statute
underlying the proceedings. ’” In the remaining four cases, the
offending relief targets administrative bodies, executive agency
officials, and even private litigants, but in each instance the
federal plaintiff seeks to enjoin the state proceedings
” Trainor, 431 U.S. at 438 (enjoining clerks and sheriffs from issuing or
serving attachments); Judice, 430 U.S. at 328 (enjoining state court judges
from enforcement of contempt proceedings); Doran, 422 U.S. at 924
(granting injunction of town attorney and other law enforcement officials);
Hicks v. Miranda, 422 U.S. 332, 340 (1975) (enjoining district attorneys and
law enforcement personnel and declaring the unconstitutionality of obscenity
statute in criminal proceeding); Kugler v. Helfant, 421 U.S. 117, 119 (1975)
(enjoining attorney general from proceeding with criminal prosecution);
Huffman, 420 U.S. at 599 (enjoining sheriff and prosecuting attorney and
execution of judgment); O'Shea v. Littleton, 414 U.S. 488 (1974) (seeking to
enjoin state court judges and law enforcement officials from taking certain
actions in future criminal prosecutions); Perez v. Ledesma, 401 U.S. 82
(1971) (entering suppression order requiring return by law enforcement
officials of materials); Boyle v. Landry, 401 U.S. 77, 78 (1971) (enjoining
state court judges and state’s attorney from prosecution of intimidation
statutes); Samuels, 401 U.S. at 73 (1971) (seeking to enjoin district attorney
from proceeding with criminal case and to declare statue underlying
prosecution unconstitutional); Younger, 401 U.S. at 53-54 (enjoining district
attorney from proceeding with criminal case).
19
themselves or to enjoin a litigant from instituting or continuing
with such proceedings. ®
Petitioners here seek no relief even remotely akin to that
which has justified Younger abstention in prior decisions of this
Court. To the contrary, this is a generic civil rights action
brought to compel an adrainistrative agency to comply with
federal law in its institutional exercise of control over
petitioners and the putative class they seek to represent. The
prayer for relief in petitioners’ amended complaint calls for
general declaratory and injunctive relief directed solely at the
Department, not Florida’s juvenile courts, juvenile court judges
or juvenile court personnel (App. 97a-100a). Petitioners do not
seek to enjoin, or to have the federal court in any respect
exercise control over, their ongoing state juvenile court
proceedings, which will continue without interference
regardless of the outcome of this suit. Nor do petitioners seek
to challenge the constitutionality of any state statute, contest
any juvenile court custodial or parental rights determination, or
compel or restrain the Department from instituting or
maintaining proceedings in juvenile court on behalf of, or
against, any party. Compare with Moore v. Sims, 442 U.S. 415,
417 (1979) (state court proceedings enjoined by district court
pursuant to “broad facial attack” in federal court on
constitutionality of Texas Family Code brought by parents and
minor children challenging children’s removal from parents’
'® See Pennzoil, 481 U.S. at 8 (enjoining attempts to enforce state court
judgment or obtain lien under state law); Ohio Civil Rights Comm'n v.
Dayton Christian Schs. Inc., 477 U.S. 619, 625 (1986) (enjoining civil rights
commission from exercising jurisdiction over sex discrimination claim);
Middlesex, 457 U.S. at 426 (seeking to enjoin state attorney disciplinary
proceeding); Moore v. Sims, 442 U.S. 415, 422 (1979) (enjoining juvenile
court neglect and abuse proceedings).
20
home into state custody).
Notwithstanding the plain language of the amended
complaint limiting the relief sought to executive conduct, the
Eleventh Circuit erroneously determined that petitioners seek
federal. court control over petitioners’ juvenile court
proceedings and even the juvenile courts themselves. Most
dramatically, the court found that plaintiffs seek
implementation of a “systemwide plan to revamp and reform
dependency proceedings in Florida, as well as the appointment
of a permanent children’s advocate to oversee that plan,” a clear
factual error (see p. 13, supra). In addition, however, the
Eleventh Circuit found “interference” in (i) its conclusory
statement that the relief sought by petitioners would place
decisions “now in the hands of the state courts under the
direction of the federal district court”; and (ii) the unarticulated
potential for “conflicting orders about what is best for a
particular plaintiff,” resulting in “amendment{[s] to a child’s
case plan that the state court would not have approved.” (App.
37a). These concerns are misplaced and the Eleventh Circuit’s
reliance on them is flatly inconsistent with this Court’s prior
teachings.
The Eleventh Circuit cites in support this Court’s
decision in O’Shea v. Littleton for the proposition that “[t]he
relief sought need not directly interfere with an ongoing
proceeding or terminate an ongoing proceeding in order for
Younger abstention to be required.” (App. 32a.) But O'Shea
establishes only that the targets of ongoing state enforcement
hearings cannot evade the Younger bar by simply framing their
claim as one for prospective relief. Younger bars not only
remedies that cause the federal courts to usurp present state
court hearings but also prospective relief that would inevitably
21
lead to a similar result. Notably, Michael O’ Shea and his co-
petitioner were state court judges, and the injunction at issue
contemplated “interruption of state proceedings to adjudicate
assertions of noncompliance by petitioners” which to the Court
constituted “nothing less than an ongoing federal audit of state
criminal proceedings.” O’Shea, 414 U.S. 488, 500 (1974).
Such relief, which directly targeted judicial officers and the
criminal proceedings they oversee, even if only prospectively, is
a far cry from the exclusively executive branch-focused
remedial relief sought in this case.
Rather than relief targeting judicial decisions about what
is best for an individual child before the juvenile court or
amendments to a particular child’s custodial disposition or case
plan, petitioners — representing a putative class of nearly all
Florida’s foster children — seek such systemic changes as the
employment of more and better trained caseworkers, the
recruitment of more and a wider availability of appropriate and
safe foster placements, and better state oversight and control
over the agencies with which the state contracts to provide
foster care services. This is precisely the relief that the Florida
separation of powers doctrine and other procedural, substantive
and practical barriers preclude Florida’s foster children from
obtaining in juvenile court (see pp. 8-9, supra).'? As a result,
'? Unlike the juvenile court, federal district courts are not constrained from
granting relief that might require additional state expenditures. Will v.
Michigan Dep't of State Police et al., 491 U.S. 58, 90 (1989) (equitable
relief “may be awarded to ensure future compliance by a State with a
substantive federal question determination” even if such compliance requires
expending state funds); Missouri Child Care Ass’nv. Cross, 294 F.3d 1034,
1042 (8th Cir. 2002) (citing Milliken v. Bradley, 433 U.S. 267, 289 (1977);
Edelman v. Jordan, 415 U.S. 651, 667-68 (1974); Wyatt v. Aderholt, 503
F.2d 1305, 1315 (Sth Cir. 1974); Anticran v. Odom, 290 F.3d 178, 186 (4th
Cir. 2002)).
22
there is no likelihood of even indirect interference with, or
intrusion into, the state court’s proceedings, which will continue
regardless of petitioners’ ability to pursue federal judicial
relief.”°
Moreover, petitioners seek only injunctive and
declaratory relief addressed to the actions and inactions of the
Department as an executive authority — specifically, the
Department’s implementation and operation of a child welfare
system that comports with reasonable professional standards.
See Youngberg v. Romeo, 457 U.S. 3u7, 324 (1982). Such
conduct is separate and distinct from any individualized judicial
review of executive action in the context of an individual foster
child’s dependency review proceedings. As this Court noted in
NOPSI, where Younger abstention ‘was held not to foreclose a
federal court challenge to a state legislative body’s rate-setting
determination subject to parallel state court review:
[I]t has never been suggested that Younger
requires abstention in deference to a state
judicial proceeding reviewing legislative or
executive action. Such a broad abstention
requirement would make a mockery of the rule
that only exceptional circumstances justify a
federal court’s refusal to decide a case in
deference to the States.
20 Not only is the prospect of inconsistent orders chimerical given the nature
of the systemic relief sought by petitioners, the mere fact that there is a
potential for disagreement in the outcomes of the federal and state judicial
proceedings is not by itself a proper basis, under this Court’s decisional law,
for application of the Younger bar. See NOPSI, 491 U.S. at 372; Doran, 422
U.S. at 928.
23
NOPSI, 491 U.S. at 368 (citations omitted). Thus, by virtue of
both (i) tiie wholly divergent relief sought and available in the
parallel federal and state proceedings at issue and (ii) the
executive nature of the conduct challenged, this case is — like
the federal challenge to the council’s rate-making determination
in NOPSI — simply beyond the purview of the Younger
abstention doctrine.
The Eleventh Circuit has adopted such a broad
abstention doctrine that the danger identified in NOPS] — the
exception that would swallow the rule that Younger abstention
be only a limited exception to a federal court exercising its
lawfully-conferred jurisdiction — has come to pass. Some of the
nation’s most vulnerable citizens, abused and neglected
children in state foster care custody, have been prohibited from
challenging in federal court the unconstitutional conditions of
their confinement by government custodians and from obtaining
appropriate relief. Respectfully, the Court should grant review
to correct this harmful expansion of what federalism dictates
must remain a doctrine only sparingly applied.
» The Writ Should Be Granted to Resolve Splits
Among the Circuit Courts.
The Court’s voice is needed to resolve conflicts between
the circuits on the type of “interference” with state court
proceedings justifying application of Younger, including direct
conflicts on Younger abstention in the context of foster care
reform litigation.
a. Though petitioners believe the corpus of
24
Supreme Court Younger abstention case law is consistent in
requiring “interference” with ongoing state court proceeding
that results in the injunction or other non-collateral limitation of
those proceedings, the circuits abound with conflicts on this
issue. The decisions reflect three strains:
i. Direct interference with state court proceedings
required — The en banc Ninth Circuit in Green v. City of
Tuscon, determined emphatically that federal relief qualifying
for Younger must “directly interfere” with the ongoing state
court proceedings and the doctrine is not satisfied merely by the
possibility of inconsistent outcomes in parallel proceedings.
255 F.3d 1086, 1097 (9th Cir. 2001) (en banc). Rather, the
interference of Younger is that which seeks to “enjoin, declare
invalid, or otherwise involve the federal courts in terminating or
truncating the state court proceedings.” Jd. at 1098. See also
Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994) (“since
parallel proceedings always involve a likelihood that a final
merits judgment in one will effectively terminate the other, it
necessarily follows that the mere fact that a judgment in the
federal suit might have collateral effects in the state proceeding
is not interference for Younger purposes”); Crawley v.
Hamilton County Com’rs, 744 F.2d 28, 30 (6th Cir. 1984)
(declining to abstain where “the federal plaintiffs ... are not
attempting to use the federal courts to shield them from state
court enforcement efforts”).
ii. At least indirect interference with state court
proceedings required — \n J.B. ex rel. Hartv. Valdez, 186 F.3d
1280 (10th Cir. 1999), a suit brought on behalf of a putative
class of developmentally disabled children in the custody of
New Mexico, the district court denied class certification and
thereafter dismissed the individual named plaintiffs’ lawsuits on
25
abstention grounds. Jd. at 1283. The Tenth Circuit affirmed the
denial of class certification (id.), dismissed a number of the
individual named plaintiffs’ claims as moot (id. at 1290), and
upheld the district court’s decision to abstain as to the three
individual plaintiff children remaining in the case (id. at 1293).
The court determined that federal court consideration of three
children’s individual claims was likely to interfere with the
children’s ongoing proceedings because the only remaining
claims required specific changes in the plaintiffs’ case plans (id.
at 1295) which would “place[] the federal court in the role of
making dispositional decisions such as whether to return the
child to his parents in conjunction with state assistance or
whether to modify a treatment plan.” /d. at 1291-92.
Further along the spectrum is the Tenth Circuit’s
decision in Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253
(10th Cir. 2002), and the extension of the Younger doctrine
contemplated in it. The plaintiffs in Joseph A., a class of foster
children, sued the New Mexico Department of Human Services
for failure to provide meaningful access to foster care and
adoption services. The case was settled with the parties entering
into a federal court consent decree. /d. at 1256. In the context
of a contempt proceeding brought by plaintiffs based on
defendants’ failure to comply with the terms of a court-ordered
“exit plan” from the original decree, the Tenth Circuit
articulated a novel expansion of the Younger doctrine under
which abstention may be warranted if a federal decree or
injunction “requires interference with the operations of [state
court proceedings] in an insidious way in that the [decree]
expressly prevents the Department’s employees from
recommending [to the state court] a range of planning options
for children who are in [] custody.” /d. at 1268. The court did
not find that any provision of the decree required abstention,
26
instead remanding that question to the district court, which it
conceded was more familiar with the “complexities” of the
case. Id. at 1273. On remand, only a sirigle provision of the
remedial scheme at issue was found by the district court to
interfere with the plaintiffs’ [state court proceedings], even
pursuant to the Tenth Circuit's “insidious _ interference”
expansion of Younger. See Joseph A. v. New Mexico Dept. of
Human Servs., No. CIV 80-623 JC/DJS (D.N.M. Jan. 16,
2003).
iii. No interference with state court proceedings
required — Sitting outside even the Tenth Circuit’s recent
extensions of Younger abstention is the Eleventh Circuit’s
decision, which petitioners submit requires no actual
interference with the state court proceedings at issue, direct or
indirect, but merely the adjudication of potentially overlapping
issues by the federal and state proceedings. The court of
appeals ruling extends beyond J.B., because unlike in J.B.,
petitioners here do not seek to challenge any custodial or other
individual “dispositional” determinations of the juvenile courts.
And it extends Younger beyond Joseph A., because the district
court here granted abstention on a motion to dismiss, essentially
ruling that the court could grant no possible relief that would
not create abstention problems. In Joseph A., by contrast,
specific relief, in a written settlement decree, had already been
formulated, and the Tenth Circuit acknowledged that at least
some relief would not conflict with the abstention doctrine.
That ruling ultimately permitted the district court’s line-by-line
abstention review that resulted in that case surviving the
Younger bar.
b. With respect to systemic foster care litigation of
the general type at issue, the Eleventh Circuit’s ruling in this
27
case, and the Tenth Circuit’s determinations in Joseph A. and
J.B. that the court of appeals expressly relies upon and expands,
are directly at odds with the Ninth Circuit’s ruling in L.H. v.
Jamieson, 643 F.2d 1351 (9th Cir. 1981). All four cases
consider the application of Younger abstention to child welfare
reform litigation filed in federal court against executive branch
defendants »y foster children seeking prospective injunctive. In
each case, the “interference” the executive defendants claim
justify Younger abstention arises from the federal court action’s
supposed effect on periodic juvenile court reviews of the same
generic type as the review proceedings at issue here.
Though the cases differ factually, on the relevant legal
point the conflict is clear-cut. As discussed, the Eleventh
Circuit here, and the Tenth Circuit in J.B. and Joseph A.,
determined that the relief sought by petitioners violated the
“interference” threshold to the first prong of Middlesex. In L.H.
v. Jamieson, a case seeking additional funding for a group of
private agencies that cared for a plaintiff class of Arizona foster
children, the Ninth Circuit reached a contrary result,
determining that there was no “interference” of the type barred
by Younger in that:
.... the juveniles are not seeking to enjoin any
state proceeding, nor are they seeking to enjoin
state officials from enforcing any state law.
They are instead requesting an order that would
require Arizona to spend more money to fund
dispositional alternatives for juveniles in state
custody. This relief may enrich the variety of
dispositional alternatives available to a juvenile
_ court judge, and, to this extent, affect pending
and ongoing state juvenile proceedings. It does
28
not, however, have the wholly disruptive
consequences associated with enjoining a state
judicial proceeding or enjoining further
enforcement of a state statute.
643 F.2d at 1354.
Respectfully, the Court should grant review to resolve
these general and specific conflicts on important issues of
federal court jurisdiction.
BN Ne A a a waxes :
29
CONCLUSION
For the reasons stated above, the petition for certiorari
should be granted.
Date: September 2, 2003
Karen Gievers
GIEVERS, P.A. ;
524 E. College Avenue,
Suite 2
Tallahassee, FL 32301
850-222-1961
William H. Fraser
LEGAL AID SOCIETY OF
PALM BEACH COUNTY,
INC.
423 Fern Street, Suite 200
West Palm Beach, FL
33401
561-655-8944
Bernard P. Perlmutter
Carolyn Salisbury
UNIV. OF MIAMI SCHOOL OF
LAW
5915 Ponce de Leon Blvd. #28
Coral Gables, FL 33146
305-284-3123
Respectfully submitted,
Marcia Robinson Lowry
Counsel of Record
Eric E. Thompson
Douglas C. Gray
CHILDREN’S RIGHTS, INC.
404 Park Ave. So., 11th Fl.
New York, NY 10016
212-683-2210
Christina A. Zawisza
CHILD ADVOCACY CLINIC
THE UNIV. OF MEMPHIS
SCHOOL OF LAW
109 N. Main St., 2nd Floor
Memphis, TN 38103
901-523-8822
ROY WASSON
1320 South Dixie Hwy.
Suite 450
Gables One Tower
Miami, FL 33146
305-666-5053
30
Deborah A. Schroth
FLORIDA LEGAL SERVICES
126 W. Adams St., #502
Jacksonville, FL 32202
904-355-5200
APPENDIX
App. la
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 02-10180
31 FOSTER CHILDREN, on behalf of themselves and all
other Children in Florida Foster Care,
Plaintiffs-Appellants
v.
JEB BUSH, as Governor of the State of Florida,
KATHLEEN KEARNEY, as Secretary of the Florida
Department of Children and Families,
CHUCK BATES, District Administrator,
ROBERT WILLIAMS, District Administrator,
ESTER TIBBS, District Administrator, et al.,
Defendants-Appellees
On Appeal from the United States District Court
For the Southern District of Florida
(D.C. Docket No. 00-02116-CV-FAM)
May 8, 2003
App. 2a
Before ANDERSON and CARNES, Circuit Judges, and
HAND’, District Judge.
CARNES, Circuit Judge.
This case involves a proposed class action brought on
behalf of all children in Florida’s foster care system against
the Governor of Florida, the Secretary of Florida’s
Department of Children and Families (“the Department”),
and the administrators of fourteen of the Department’s fifteen
districts, all of whom collectively administer Florida’s foster
care system. The individual plaintiffs’ amended complaint
alleges widespread deficiencies in the state’s foster care
system, in violation of the United States Constitution and
federal statutory law. The plaintiffs appeal the district court’s
order insofar as it grants the defendants’ motions to dismiss
parts of the amended complaint on grounds of Younger V.
Harris abstention and Eleventh Amendment immunity.
In Part I of this opinion, we set out the allegations
contained in the multi-count complaint and the procedural
history of the case. In Part II, we address the justiciability
concerns raised by the defendants and conclude that although
the claims of two of the plaintiffs are moot, the other
plaintiffs have standing to pursue their claims. In Part III, we
review the plaintiffs’ federal statutory claims and affirm the
district court’s order dismissing those claims, because the
statutes at issue do not give rise to enforceable rights. In Part
IV, we discuss the Younger abstention doctrine and conclude
that the district court did not abuse its discretion in abstaining
from deciding the plaintiffs’ claims. Part V contains our
conclusions and instructions for the district court on remand.
* Honorable William B. Hand, United States District Judge for the
Southern District of Alabama, sitting by designation.
8 OIE CRG ELON EIS MO OOS Me NT NRT Pe RRR RT Ne TO Ey
App. 3a
I. THE COMPLAINT AND PROCEDURAL HISTORY
In June of 2000, the plaintiffs filed suit on behalf of
themselves and a statewide class of children in custody of the
defendants. The amended complaint contains six counts,
alleging that the defendants’ practices deny and threaten the
plaintiffs’’ claimed rights to: (1) safe care that meets their
basic needs, prompt placements with permanent families, and
services extended after their eighteenth birthdays, as
guaranteed by substantive due process (Count I); (2)
procedural due process in determining the services they will
receive (Count II); (3) family association with siblings as
guaranteed by the First, Ninth, and Fourteenth Amendments
(Count III); (4) prompt placement with permanent families
and to have their medical and educational backgrounds
provided to their care givers, as guaranteed by 42 U.S.C. §§
675(5)(D) and (E), which are provisions of the Adoption
Assistance and Child Welfare Act of 1980, Pub. L. No. 96-
272, 94 Stat. 500, 516 (June 17, 1980) (codified as amended
at 42 U.S.C. §§ 620-628 and §§ 670-679a) (‘the Adoption
Act”) (Count IV); (5S) health screening and followup under
schedules established pursuant to the Medicaid Act, 42
U.S.C. §§ 1396a(a)(43)(B), 1396(a)(43)(C), and 1396d(r)
(Count V); and (6) in the case of the black plaintiff foster
children, freedom from racial discrimination in the provision
of care and services, as guaranteed by Title VI of the 1964
Civil Rights Act (Count VI).
The plaintiffs brought their lawsuit under 42 U.S.C. §
1983, seeking declaratory and injunctive relief relating to the
' The plaintiffs who filed the amended complaint are: Bonnie L., Reggie
B., Rebecca B., Laurie S., Lillie S., Leslie F., Sandra M., Tanya M.,
Candice D., Jay D., Matthew I., Hugh S., Leanne G.., Tammy G., Elaine
R., Paul B., Rachel C., Cathy W., Larissa C., John J., Melinda, and
Karina.
App. 4a
operation of Florida’s foster care system. Specifically, they
requested that the court:
(1) declare unconstitutional and unlawful the
following alleged practices: (a) the failure to provide for the
plaintiffs’ basic needs, safety, freedom from harm, freedom
from unreasonable restraints on their liberty, care and
treatment, freedom from being placed into unnecessary state-
created danger, and freedom from arbitrary and capricious
actions and decisions that deprive them of benefits to which
they are entitled; (b) deprivation of state-created entitlements
without an adequate and fair procedure; (c) unnecessary
separation of siblings and denial of visitation among them;
(d) failure to comply with the Adoption Act and the Medicaid
Act; and (e) discrimination on the basis of race;
(2) enjoin the Department and the defendants
from violating the plaintiffs’ constitutional rights, including
those described in (1) above;
(3) order appropriate remedial relief to ensure
compliance with the Constitution and laws of the United
States;
(4) appoint an expert panel to develop and
oversee the implementation of a plan for reform;
(5) appoint a permanent ombudsman or children’s
advocate to present the plaintiffs’ interests to the defendants,
and require the defendants to meet regularly and frequently
with that ombudsman; and
(6) grant other equitable relief as the court sees
fit.
PERL at AE AP GLEE PR TO OR ‘
“ .
App. 5a
After amending the complaint, the plaintiffs moved to
certify the statewide class of all children who are or would be
in foster care in Florida, along with a subclass of black
children.” Upon motion of the defendants, the court
appointed a guardian ad litem, who concluded after
investigation that “a class action lawsuit is an appropriate
mechanism to secure a remedy for all the children in State
custody . . . [and] that the prosecution of this lawsuit to a
final resolution . . . will be in the best interests of the Plaintiff
children and the class they represent.”
The district court dismissed all of the plaintiffs’
claims on the pleadings. It ruled that Count IV, which
involves the Adoption Act claims, is barred by the Eleventh
Amendment and dismissed those claims with prejudice. The
court also dismissed with prejudice the constitutional claims
— Counts I, II, and III] — as to all plaintiffs who are not in
extended foster care (which exists only for persons age 18 or
older); it did so based upon the abstention doctrine of
Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). The
court dismissed with prejudice the portion of Count VI that
alleges disparate impact discrimination under Title VI of the
Civil Rights Act of 1964. Concluding that the amended
complaint was not a “short and plain statement” of claims,
the court dismissed all the other claims (including the Title
VI claims for intentional discrimination} in the amended
complaint without prejudice, granting the plaintiffs leave to
replead those claims that had not been dismissed on some
other basis.
Thereafter, eleven of the twenty-two named plaintiffs
who had filed the amended complaint settled all of their
* The class description was later modified to exclude children who were
plaintiffs in a separate class action involving only children in foster care
in Broward County.
App. 6a
claims, executed a release, and are no longer part of the
lawsuit. Some of the eleven plaintiffs who remain in the
lawsuit also settled some of their claims. More specifically,
all the intentional racial discrimination claims and all the
Medicaid Act claims have been settled and dismissed.’ The
settlement left no unadjudicated claims pending in the district
court.
The plaintiffs who appealed to this Court are the
remaining eleven named plaintiffs still in foster care in -
Florida for persons under the age of eighteen." The issues
they raise in this appeal concern only Counts I through IV,
which involve some of the claims that were dismissed with
prejudice.”
Il. JUSTICIABILITY
Initially, we are faced with some threshold questions
about whether the plaintiffs’ claims present a justiciable case
or controversy. Specifically, we must decide whether the
claims of two of the plaintiffs are moot and whether the other
plaintiffs have standing to challenge the practices at issue.
A. MOOTNESS
The exercise of jurisdiction by the federal courts
“depends upon the existence of a case or controversy.”
3 Because of that settlement, none of the plaintiffs filed an amendment to
the complaint repleading those claims, even though the district court’s
dismissal of them had been without prejudice.
‘ They are: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Leanne
G., Tammy G., Elaine R., Rachel C., Larissa C., and John J.
* Although the disparate impact portion of the black children’s Title VI
claims in Count VI was also dismissed with prejudice, the plaintiffs do
not contest that ruling.
App. 7a
North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404
(1971) (citation and internal quotation marks omitted). “[A]
case is moot when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486,496, 89 S. Ct. 1944,
1951 (1969). “Put another way, [a] case is moot when it no
longer presents a live controversy with respect to which the
court can give meaningful relief.” Fla. Ass’n of Rehab.
Facilities. Inc. v. Fla. Dep’t of Health & Rehabilitative
Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (citations and
internal quotation marks omitted). We consider questions of
mootness under a plenary standard of review. United States
v. Fla. Azalea Specialists, 19 F.3d 620, 621 (11th Cir. 1994).
The defendants contend that Larissa C.’s and Leanne
G.’s claims are moot, and we agree. Because Larissa C. and
Leanne G. have been adopted, they are no longer in the
defendants’ legal or physical custody and therefore cannot be
further harmed by the defendants’ alleged illegal practices.
Because the plaintiffs’ amended complaint seeks only
prospective injunctive relief against the defendants to prevent
future harm, no live controversy exists between them and
these two plaintiffs. Larissa C. and Leanne G. have no legally
cognizable interest in the outcome of this lawsuit. All of their
claims are moot.
B. STANDING
The three prerequisites for standing are that: (1) the
plaintiff have suffered an “injury in fact” — an invasion of a
judicially cognizable interest, which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical; (2) there be a causal connection between that
injury and the conduct complained of — the injury must be
fairly traceable to the challenged action of the defendant, and
App. 8a
not the result of the independent action of some third party
not before the court; and (3) it be likely, not merely
speculative, that the injury will be redressed by a favorable
decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct.
1154, 1161 (1997). These three elements “constitute[] the
core of Article III’s case-or-controversy requirement.” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118
S. Ct. 1003, 1017 (1998).
The plaintiffs bear the burden of establishing each of
the three standing elements. Bennett, 520 U.S. at 167-68, 117
S. Ct. at 1163-64. How much evidence is necessary to satisfy
that burden depends on the stage of litigation at which the
standing challenge is made. Id. At the pleading stage,
“general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
we presume that general allegations embrace those specific
facts that are necessary to support the claim.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130,
2137 (1992) (citations and internal marks omitted).
Because Larissa C.’s and Leanne G.’s claims are
moot, we have nine remaining plaintiffs who appealed to this
Court and for whom the standing question maiters: Reggie
B., Rebecca B., Laurie S., Lillie S., Tanya M., Tammy G.,
Elaine R., Rachel C., and John J. Taking the allegations of
the complaint as true for present purposes, as we must,
Pompey v. Broward County, 95 F.3d 1543, 1548 n.6 ( Ith
Cir. 1996), we will proceed count-by-count as to all the
injury claimed by the plaintiffs who have appealed to this
Court.
In Count I, the plaintiffs claim that the defendants
have violated their substantive due process rights by
engaging in a pattern and practice of failing to meet their
See =>
: . . . ania poner - . PHS ae sy at % are ee BES ee aa, fe rs
RS eine hese i bo PAA i aA li
App. 9a
obligations in the following ways: failing to satisfy the
plaintiffs’ basic needs for food, clothing, and shelter, as well
as for medical, educational and other services; failing to
provide safe care and placements that protect the plaintiffs
from harm and services that prevent or ameliorate harm; and
failing to provide the plaintiffs with care consistent with the
purposes for which the defendants assumed custody of them.
As additional claimed violations of their substantive
due process rights in Count I, eight of the nine remaining
plaintiffs — Tanya M., Laurie S., Lillie S., Elaine R., Rachel
C., Reggie B., John J., and Tammy G. — assert that the
defendants knowingly placed and retained them in foster care.
placements that were dangerous, abusive, neglectful,
overcrowded, or wholly inappropriate for meeting the
children’s needs. The plaintiffs further claim that the
defendants ignore or inappropriately respond to complaints
or other information identifying certain placements as
dangerous, abusive, neglectful, overcrowded, or wholly
inappropriate for meeting the children’s needs, and have
done so in the placements of Tanya M., Laurie S., Lillie S..,
Tammy G., and John J. Further, the defendants are alleged to
have engaged in a pattern and practice of placing some
children, including Rachel C. and Tammy G., in temporary
shelters or group homes on a long-term basis because of the
unavailability of foster homes to accommodate them. They
are alleged to have retained children, including Laurie S..,
Lillie S., Reggie B., and Rebecca B., in foster care longer
than necessary and to have subjected children to multiple,
unwarranted placements. The position of the plaintiffs is that
the defendants have a pattern and practice of engaging in the
conduct alleged in Count I, which has caused and continues
to cause the plaintiffs injury.
In Count II, the plaintiffs assert viviations of .
procedural due process. They allege that the defendants have
App. 10a
failed to establish a process for an administrative hearing or
professional review of decisions that deny the plaintiffs
benefits to which they are entitled, including caseworker
supervision of children in foster care and shelter care,
medical care, foster care after reaching the age of majority,
and participation in a subsidized Independent Living
Program. Specifically, it is alleged that Reggie B. has been
and continues to be injured by this pattern and practice,
because he has been denied treatment necessary to repair a
cleft palate and for other medical needs.
In Count III, eight of the remaining plaintiffs —
Tanya M., Tammy G., Laurie S., Lillie S., John J., Elaine R..,
Reggie B., and Rebecca B. — claim that the defendants have
violated their First, Ninth, and Fourteenth Amendment rights
by unnecessarily separating them from their siblings and
depriving them of regular and frequent visitation with their
separated siblings. They allege that the defendants have a
pattern and practice of doing so, and that it has harmed them.
In Count IV, the plaintiffs allege that the defendants
have violated rights granted them under the Adoption Act.
Specifically, Laurie S., Lillie S., Reggie B., and Rebecca B.
claim that the defendants routinely fail to initiate proceedings
for termination of parental rights to children in their custody
for 15 of the most recent 22 months as required under 42
U.S.C. § 675(5)(E), and that they have been harmed by this
practice. Reggie B. also alleges specifically that his health
and education records were not provided to foster parents or
foster care providers immediately upon his placement in a
home or facility, as required under 42 U.S.C. § 675(5)(D),
and the other eight remaining plaintiffs allege generally that
the defendants routinely fail to obtain the required
information, update it, or provide a record of the information
to each foster home or facility.
SsckaisaPiip des Shao uci gh msi A ks ok nina bs as dba ais
EP Ae NR EARP Og Sra
SNES EIA ES
App. lla
The defendants contend that none of the plaintiffs has
Standing to bring claims under Count II (procedural due
process) or Count IV (Adoption Act). With regard to Count I
(substantive due process), the defendants contend that only
four plaintiffs — Laurie S., Lillie S., Reggie B., and Rebecca
B. — have standing to claim that they have been in foster
care longer than reasonably necessary. They contend that
only three plaintiffs — Tammy G., Laurie S., and Lillie S$. —
have standing to bring a claim under Count III (sibling
association) for failure to be placed in a foster home with
their siblings. Finally, they contend that only two plaintiffs
— Elaine R. and Tammy G. — have standing to raise a claim
under Count III for failure to allow visitation with siblings.
The defendants’ basis for claiming that most plaintiffs lack
standing for these claims is that most of them fail to allege
either a palpable injury or the imminent risk of harm.®
Instead, according to the defendants, most of the plaintiffs
complain about past harms and seek relief for aspects of the
Florida foster care system that have not caused them injury.
In order to satisfy the “injury in fact” requirement of
standing, a plaintiff need not wait for an injury to occur. An
° In addition to injury in fact, plaintiffs must also allege that their injuries
are “fairly traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before the court,”
and that it is likely the injury will be redressed if the court rules in their
favor. Bennett v. Spear, 520 U.S. 154, 167, 117 S. Ct. 1154, 1163 (1997).
These aspects of standing are not disputed in this case. According to the
amended complaint, the defendants’ failures caused the plaintiffs’ injuries
and their continued failures are likely to cause further injuries. The
plaintiffs do allege that their injuries are related to the challenged conduct
of the defendants. Therefore, the alleged injuries suffered by the plaintiffs
are fairly traceable to the conduct of the defendants. In addition, the
plaintiffs seek a declaratory judgment and prospective injunctive relief
that will prevent the defendants from violating their constitutional and
federal statutory rights. The relief the plaintiffs seek would clearly
remedy their claimed injuries.
App. 12a
allegation of future injury satisfies this prong of standing so
long as the alleged injury is “imminent” or “real and
immediate” and not merely “conjectural” or “hypothetical.”
Lujan, 504 U.S. at 560, 112 S. Ct. at 2136; City of Los
Angeles _v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660,
1665 (1983). An injury is imminent if it is likely to occur,
and likely to do so immediately. Lujan, 504 U.S. at 560, 112
S. Ct. at 2136.
When a plaintiff cannot show that an injury is likely
to occur immediately, the plaintiff does not have standing to
seek prospective relief even if he has suffered a past injury.
For example, in Lyons, the plaintiff sought to enjoin the use
of “chokeholds” by police officers. 461 U.S. at 98, 103 S. Ct.
at 1663. The Court stated that the plaintiffs standing to seek
that relief hinged on “whether he was likely to suffer future
injury from the use of the chokeholds by police officers.” Id.
at 105, 103 S. Ct. at 1667. The Court held that the plaintiff
lacked standing, because the probability of future injury was
too speculative, id. at 106-07, 103 S. Ct. at 1667-68,
explaining:
In order to establish an actual controversy in this case,
[the plaintiff] would have had not only to allege that
he would have another encounter with the police but
also to make the incredible assertion either (1) that all
police officers in Los Angeles always choke any
citizen with whom they happen to have an encounter
_.. or (2) that the City ordered or authorized police
officers to act in such manner.
Id. at 105-06, 103 S. Ct at 1667. As Lyons illustrates, future
injury that depends on either the random or unauthorized acts
of a third party is too speculative to satisfy standing
requirements. However, when the threatened acts that will
e + ieee Se eae area et
oe " ‘ ; na oe hee BY eae 3 somes s Pa OMe pt Le ago
wae) ite Pe x IEEE ESE PERRIS ls LN OO a I a de Si i tink eal = Sika .
EDN LEAT INO en eee Ore
4
aay.
br te
*
aby
*
eit
¥
¢
Sy
"
;
App. 13a
cause injury are authorized or part of a policy, it is
significantly more likely that the injury will occur again. See
id. at 106, 103 S. Ct. at 1667 (plaintiff may have had
Standing if he had alleged “that the City ordered or
authorized police officers to [perform illegal chokeholds]”).
This case is more like Church v. City of Huntsville.
30 F.3d 1332 (11th Cir. 1994), than Lyons. In Church. the
plaintiffs were homeless persons who sought an injunction
against the City of Huntsville to prevent the City and its
employees from harassing, intimidating, detaining, and
arresting them solely because they were homeless, as part of
a concerted effort to drive them out of the city. Id. at 1335.
We held that the plaintiffs had standing, because they were
far more likely than the Lyons plaintiff to have future
encounters with the police, were homeless involuntarily, and
could not “‘avoid future exposure to the challenged course of
conduct” in which the City engaged. Id. at 1338 (quoting
O’Shea v. Littleton, 414 U.S. 488, 497, 94 S. Ct. 669, 677
(1974)). Importantly, the Church plaintiffs alleged that
municipal policy authorized the constitutional deprivations
they claimed and that the City had a “custom, practice and
policy” of engaging in the challenged conduct. Id. at 1339.
For the reasons that the Church plaintiffs had
standing, the plaintiffs in this case who are in the defendants’
physical custody have standing to pursue their substantive
due process claims (Count I). The plaintiffs who are in the
defendants’ physical custody and have siblings in the
defendants’ custody — Tammy G., Laurie S., Lillie S., John
J., Reggie B., and Rebecca B. — have standing to pursue
their sibling association claims (Count III). These plaintiffs
are in much the same legal position as the Church plaintiffs.
They are in the custody of the defendants involuntarily and
will be until they are returned to their parents, are adopted, or
reach the age of majority. They cannot avoid exposure to the
App. 14a
defendants’ challenged conduct. The alleged systemic
deficiencies in the Florida foster care system are similar to an
injurious policy, and different from the random act at issue in
Lyons. The alleged pattern and practice in this case presents
a substantial likelihood that the alleged injury will occur. See
Church, 30 F.3d at 1339.
Moreover, the plaintiffs’ allegations under Counts |
and III support the conclusion that future injury will proceed
with a high degree of immediacy. The Supreme Court
addressed this aspect of the injury in fact requirement in
Lujan, holding that because the plaintiffs failed to
demonstrate their injury would “proceed with a high degree
of immediacy, so as to reduce the possibility of deciding a
case in which no injury would have occurred at all,” they
lacked standing to pursue their claim. 504 US. at 559, 564
n.2, 112 S. Ct. at 2135-36, 2138 n.2. Thus, under Lujan, one
cannot merely allege that an injury will be suffered at “some
time” in the future. However, a plaintiff need not
demonstrate that the injury will occur within days or even
weeks to have standing. See, e.g., Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 211-12, 115 S. Ct. 2097, 2105 (1995)
(plaintiff who was likely to suffer injury within one year
period had standing to sue). The court must make a
qualitative inquiry into this question. See Wilderness Soc’y
y. Alcock, 83 F.3d 386, 390 (llth Cir. 1996) (when
determining standing, court focuses on qualitative sufficiency
of the injury). In this case, for those plaintiffs who are in the
physical custody of the defendants, the degree of immediacy
is sufficiently high that there is little likelihood the district
court will be deciding a case “in which no injury would have
occurred at all.” Lujan, 504 U.S. at 564 n.2, 112 S. Ct. at
2138 n.2.
However, the two plaintiffs who are not in the
defendants’ physical custody lack standing to pursue the
eee ee. ee ee ae FOE LE LE AE ET OO SO PO ji ie
1 a aed LL RGA INS RY PGI IEEE INE IE NDT AG IGE LAN ET eg Be ORR PE SEE AOSD Se OCT te . ib thei ris eget
ed Pete Te ECG ESA GRRE To PRE BS hakiead bail itt age nat et Rdaats gs ote able ce teal ee ae Sie : -
App. 15a
constitutional claims under Counts I and III. The amended
complaint states that Tanya M. has run away, and at oral
argument the plaintiffs’ counsel referred to Elaine R. as one
of the “hundreds of missing children.” Plaintiffs who are not
in the defendants’ physical custody cannot demonstrate that
their constitutional injuries are imminent. They may return to
the defendants’ physical custody, but they may not. If they do
not return to the defendants’ physical custody, then they will
never be harmed by the alleged practices of the defendants. It
follows that they cannot demonstrate any injury that would
“proceed with a high degree of immediacy.” Id.
Only Reggie B. has standing to pursue the procedural
due process claims set out in Count II, because he is the only
plaintiff who has demonstrated injury in fact as to that claim.
He claims that he has been denied medical care to repair a
cleft palate (and other unspecified medical care) and that the
defendants have not provided a process for review of that
denial. If his cleft palate has not been repaired, he has been
denied an alleged entitlement, and he is asking for procedural
protections he claims have not been provided. His is a
concrete injury that is real and immediate. Id. at 560, 112 S.
Ct. at 2136. The other plaintiffs, however, have not alleged
that they have been denied any entitlement. Without such an
allegation, the other plaintiffs are essentially asserting that
they will be denied a benefit in the future, and that when that
happens, the defendants will provide them with no process
for reviewing the denial. The plaintiffs’ procedural due
process claims are different from their substantive due
process claims because the procedural injury requires two
steps: the defendants must deny the plaintiffs a benefit and
then deny them process. Such an injury may never occur. See
id. at 564 n.2, 112 S. Ct. at 2138 n.2.
As to the Adoption Act claims in Count IV, all of the
plaintiffs whose parents’ parental rights have not been
App. 16a
terminated within the period set out in the statute have
standing to pursue a claim under 42 U.S.C. § 675(5)(E).
Their claimed injury is concrete. In the amended complaint,
Laurie S., Lillie S., Reggie B., and Rebecca B. present such
claims. Other plaintiffs, the ones who have not been in the
defendants’ custody for the statutory period, do not have
standing to bring a claim under § 675(5)(E), because they
may not be injured at all; they may return to their parents’
custody.
All of the remaining plaintiffs in the defendants’
physical custody have claims under 42 U.S.C. § 675(5)(D)
for the defendants’ failure to provide updated health and
education records to the plaintiffs’ foster caregivers for the
same reasons that they have standing to pursue their
substantive due process claims. Because it is alleged that the
defendants routinely fail to obtain the required information,
update the records, and provide the information to the foster
caregivers, all children who are within the defendants’
physical custody are at risk of immediate harm from that
pattern and practice.
In sum, Larissa C.’s and Leanne G.’s claims are moot
because they have been adopted. Reggie B., Rebecca B.,
Laurie S., Lillie S., Tammy G., Rachel C., and John J. have
standing to pursue their Count I claims. Reggie B. has
standing to pursue his Count II claims. Tammy G., Laurie S.,
Lillie S., John J., Reggie B., and Rebecca B. have standing to
pursue their Count III claims. Laurie S., Lillie S., Reggie B.,
and Rebecca B. have standing to pursue their Count IV
claims for failure to terminate parental rights in the statutory
period. Reggie B., Rebecca B., Laurie S., Lillie S., Tammy
G., Rachel C., and John J. have standing to pursue their
Count IV claims for failure to provide updated health and
education records to foster caregivers.
App. 17a
III. THE PLAINTIFFS’ CLAIMS UNDER § 1983 FOR
VIOLATIONS OF §§ 675(5)(D) AND (E) OF THE
ADOPTION ACT
Because some of the plaintiffs have standing to
pursue their Adoption Act claims, we must now decide
whether 42 U.S.C. § 675(5)(D) and (E) provide rights
enforceable under 42 U.S.C. § 1983.’ It provides a federal
remedy for violations not only of the Constitution but federal
statutes as well. Maine v. Thiboutot 448 U.S. 1, 100 S. Ct.
2502 (1980). In order to have a viable cause of action under §
1983 based on the violation of a federal statute, however, a
plaintiff must establish that the statute allegedly violated
gives the plaintiff enforceable rights. Gonzaga Univ. v. Doe,
536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002) (rejecting
the notion that case law permits “anything short of an
unambiguously conferred right to support a cause of action
brought under § 1983”).
We emphasize, as did the Court in Gonzaga, that in
cases brought to enforce legislation enacted pursuant to
Congress’ spending power, such as the Adoption Act,
Congress must “speak with a clear voice” and manifest an
“unambiguous” intent to confer individual rights before
federal funding provisions will be read to provide a basis for
private enforcement. Id. at 280, 122 S. Ct. at 2273 (citing
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. ey A
28 & n.21, 101 S. Ct. 1531, 1540, 1545 & n.21) (1981)). “In
” The district court did not decide this question, instead dismissing the
plaintiffs’ Adoption Act claims as barred by the Eleventh Amendment
under Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114
(1996). In view of our conclusion that the Adoption Act claims are due to
be dismissed on other grounds, we need not address the Eleventh
Amendment issue. McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d
1252, 1258-59 (11th Cir. 2002).
App. 18a
legislation enacted pursuant to the spending power, the
typical remedy for state noncompliance with federally
imposed conditions is not a private cause of action for
noncompliance but rather action by the Federal Government
to terminate funds to the State.” Pennhurst, 451 USS. at 28,
101 S. Ct. at 1545. Only twice since Pennhurst has the
Supreme Court held that spending legislation gave rise to
rights enforceable via § 1983. See Wilder _v. Va. Hosp.
Ass’n, 496 U.S. 498, 110 S. Ct. 2510 (1990) (holding that
health care providers could, pursuant to § 1983, enforce the
Boren Amendment to the Medicaid Act); Wright v. Roanoke
Redevelopment & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766
(1987) (holding that the Brooke Amendment to the Housing
Act provided a cause of action under § 1983).
The Supreme Court has set forth three requirements
that must be met before a federal statute will be read to
confer a right enforceable under § 1983: (1) Congress must
have intended that the provisions in question benefit the
plaintiff; (2) the plaintiff must demonstrate that the right
assertedly protected by the statute is not so vague and
amorphous that its enforcement would strain judicial
resources; and (3) the provision giving rise to the asserted
right must be couched in mandatory, rather than precatory,
terms. Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.
Ct. 1353, 1359 (1997). The Supreme Court in Gonzaga
clarified the first of the Blessing requirements, making it
plain that only unambiguously conferred rights, as
distinguished from mere benefits or interests, may be
enforced under § 1983. 536 U.S. at 283, 122 S. Ct. at 2275
(rejecting the notion private plaintiffs have enforceable
federal rights merely because they are the intended
beneficiaries of a statute or fall within its zone of interest).
The Court held in Gonzaga that a private plaintiff
could not bring an action under § 1983 to enforce provisions
App. 19a
of the Family Educational Rights and Privacy Act of 1974
(FERPA), 20 U.S.C. § 1232g. In FERPA Congress directed
the Secretary of Education to deny federal funding to any
state with a policy or practice of permitting the unauthorized
release of education records or personal information.
Congress was explicit about it, saying: “No funds shall be
made available... to any [school] which has a policy or
practice of permitting the release of education records . . . of
students without the written consent of their parents ...” 20
U.S.C. § 1232g(b)(1).
5 A thee L OEE SLES MAREE EO SO or
In holding that FERPA does not create a right
enforceable under § 1983, the Supreme Court explained that
the act lacks “rights-creating” language critical to showing
congressional intent to create new rights. Instead, the act
speaks only to the Secretary of Education, directing him to
withhold funds if the prohibited practice exists. Gonzaga, 536
U.S. at 287, 122 S. Ct. at 2277. The Court contrasted
FERPA’s language that “[n]o funds shall be made available,”
with the individually focused language of Titles VI and IX,
which mandate that “[n]Jo person . . . shall . . . be subjected to
discrimination,” statutes that do create enforceable rights, see
Cannon vy. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946
(1979). The Court concluded in Gonzaga that the focus of
FERPA is “two steps removed from the interests of
individual students and parents.” 536 U.S. 287, 122 S. Ct. at
2277. Instead of creating an enforceable duty on the part of
the school, the act only imposed a duty on the part of the
federal government — the duty to withhold funds.
A second reason the Supreme Court gave in Gonzaga
for concluding that FERPA does not create enforceable rights
is that its nondisclosure provisions speak only in terms of
institutional policy and practice, not about “individual
instances of disclosure.” Id. at 288, 122 S. Ct. at 2278. The
provisions therefore have an aggregate focus, instead of a
App. 20a
concern for “whether the needs of any particular person have
been satisfied.” Id. (citation omitted). Also thought
significant is the fact that institutions can avoid funding
termination under FERPA by substantial compliance with the
act’s requirements; compliance in every case is not necessary
to avoid loss of funding. Id.
Finally, the Supreme Court considered in Gonzaga
the mechanism that Congress chose to provide for enforcing
the provisions of FERPA. The act expressly authorizes the
Secretary of Education to “deal with violations” of it and to
establish a review board for investigating and adjudicating
such violations. 20 U.S.C. § 1232g(f). The Secretary’s
regulations create an office to act as a review board, and
students can file individual written complaints with that
office. This review mechanism, the Court concluded,
evidences a congressional intent to avoid the multiple
interpretations of FERPA that might arise if the act created
enforceable individual rights. Gonzaga, 536 at 289-90, 122 S.
Ct. at 2278-79.
We take from Gonzaga the lesson that we are to look
at the text and structure of a statute in order to determine if it
unambiguously provides enforceable rights. If the text and
structure “provide no indication that Congress intends to
create new individual rights, there is no basis for a private
suit.” Id. at 286, 122 S. Ct. at 2277. If they provide some
indication that Congress may have intended to create
individual rights, and some indication it may not have, that
means Congress has not spoken with the requisite “clear
voice.” Ambiguity precludes enforceable rights. Id. at 280,
122 S. Ct. at 2273. The first Blessing requirement, which is
what Gonzaga addressed, is that Congress must have
intended that the provision in question benefit the plaintiff.
Factors to consider in determining if it did include whether
the statute: (1) contains “rights-creating” language that is
App. 2la
individually focused; (2) addresses the needs of individual
persons being satisfied instead of having a systemwide or
aggregate focus; and (3) lacks an enforcement mechanism
through which an aggrieved individual can obtain review.
Turning to the specific legislation at hand, the
Adoption Act comprises Parts B and E of Title IV of the
Social Security Act and is a federal funding statute that
establishes a program of payments to states for foster care
and adoption assistance. 42 U.S.C. § 620-628, 670-679a.
Sections 675(5)(D) and (E) are found in Part E. For a state to
receive funds under Part E, it must satisfy certain
requirements. The state must submit for approval by the
Secretary of Health and Human Services a plan for foster
care and adoption assistance. 42 U.S.C. § 671(a). If a state
follows its approved plan, it receives federal funds. 42 U.S.C.
§ 670; 42 U.S.C. § 1320a-2a.
If the state does not follow its approved plan, it may
lose all or some of the federal funds it otherwise would
receive. Section 1320a-2a requires the Secretary to
promulgate regulations for use in reviewing state programs in
order to determine whether the programs are in substantial
conformity with the state plan. 42 U.S.C. § 1320a-2a(a)(3).
Under the statute, the regulations must require the Secretary
to withhold federal funds if a state has failed to substantially
conform to its approved plan, id. § 1320a-2a(b)(3), and the
regulations do exactly that, 45 C.F.R. §§ 1355.35(c)(4),
1355.36(b).
The plaintiffs in this case brought suit under § 675, a
section that provides definitions for both Parts B and E,
including a definition for the term “case review system.” 42
U.S.C. § 675(5). The plaintiffs’ position is that those
provisions relating to a case review system give them an
App. 22a
enforceable right under the statute. Section 675(5) provides,
in relevant part:
The term “case review system” means a procedure for
assuring that —
(D) a child’s health and education record (as
described in paragraph (1)(A)) is reviewed and
updated, and supplied to the foster parent or foster
care provider with whom the child is placed, at the
time of each placement of the child in foster care;
(E) in the case of a child who has been in foster care
under the responsibility of the State for 15 of the most
recent 22 months, or, if a court of competent
jurisdiction has determined a child to be an
abandoned infant (as defined under State law) or has
made a determination that the parent has committed
murder of another child of the parent, committed
voluntary manslaughter of another child of the parent,
aided or abetted, attempted, conspired, or solicited to
commit such a murder or such a_ voluntary
manslaughter, or committed a felony assault that has
resulted in serious bodily injury to the child or to
another child of the parent, the State shall file a
petition to terminate the parental rights of the child’s
parents (or, if such a petition has been filed by
another party, seek to be joined as a party to the
petition). 42 U.S.C. § 675(5).
Because §§ 675(5)(D) and (E) are definitional in
nature, they alone cannot and do not supply a basis for
conferring rights enforceable under § 1983. See Gonzaga,
536 U.S. at 280, 122 S. Ct. at 2273; see_also Charlie H. v.
Whitman, 83 F. Supp. 2d 476, 490 (D.N.J. 2000) (§ 675(5),
standing alone, does not confer a right enforceable under §
1983); B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D. Ill.
pa tar a pelea Ie BLN REA A PREIS NE USS ig SASS
bs
, App. 23a
1989) (“It would be strange for Congress to create
enforceable rights in the definitional section of a statute.”).
Other than the definition, the only provision in Part E
of Title IV that uses the term “case review system” is 42
U.S.C. § 671(a)(16). That section conditions receipt of federal
funds on the existence of a state plan that, among other
things, provides for “a case review system which meets the
requirements described in section 675(5)(B) .. . with respect
to each such child.” Section 671(a)(16) does not go beyond
that and explicitly require a plan to meet the requirements
described in §§ 675(5)(D) and (E).
The plaintiffs contend otherwise. They argue that we
should not interpret § 671(a)(16) to require compliance only
with § 675(5)(B) in order for states to receive federal funds,
but we think that is the most logical interpretation. The
statute plainly directs that the state must have a plan that
provides for a case review system “which meets the
requirements described in section 675(5)(B) of this title.” 42
U.S.C. § 671(a)(16). It does not say that a plan’s case review
system must meet the requirements of §§ 675(5)(D) and (E).
Moreover, in other provisions of the Adoption Act,
provisions that are codified in Part B of Title IV, Congress
has required compliance with all of § 675(5) in order for a
state to receive funds. The conclusion we reach is that
* Part B creates a joint federal-state program that provides federal funds
for child welfare services. In order to be eligible for these funds, 42
U.S.C. § 622(b)(10)(B){ii) requires that each state have a plan for child
welfare services that “provide[s] assurances that the State — is operating,
to the satisfaction of the Secretary — a case review system (as defined in
section 675(5) of this title) for each child receiving foster care under the
supervision of the State.” Another provision, 42 U.S.C. § 626(b)(3),
requires that, in order for states to receive funds for projects for the
development of alternate care arrangement for infants who do not need to
ee er ee
App. 24a
Congress knew how to require compliance with all aspects of
a case review system, as described in § 675(5), when it
wanted to do so. It did not choose to do so in § 671(a)(16).
Additionally, §§ 675(5)(D) and (E) do not have the
kind of focused-on-the-individual, rights-creating language
required by Gonzaga. Instead, the language of those
provisions gives them an aggregate or system wide focus
‘nstead of one that indicates concern with whether the needs
of any particular child are met. Gonzaga, 536 U.S. 288, 122
S. Ct. at 2277-78. Although the text of the provisions speaks
to “a child’s health and education record” provided at “each
placement of the child” and to termination of the parental
rights of “the child’s parents,” the case review system as a
whole is defined as “a procedure for assuring” that the
desired steps are taken. 42 U.S.C. § 675(5). The references to
individual children and their placements are made in the
context of describing what the procedure is supposed to
ensure, and such provisions “cannot make out the requisite
congressional intent to confer individual rights enforceable
by § 1983.” Gonzaga, 536 U.S. at 289, 122 S. Ct. at 2278.
be in hospital settings, the state develop “a case review system of the type
described in § 675(5) of this title” for each infant.
The plaintiffs have not sued under either 42 U.S.C. § 622(b)(10)(B)(ii)
or § 626(b)(3), which are in Part B, and instead have repeatedly said that
their claims arise under Part E. Section 671(a)(16) is the only section in
Part E that refers to a “case review system.” So, we have confined our
consideration to it. However, other courts have found that §
622(b)(10)(B)(ii), at least, does not confer an enforceable right. See
Charlie H. v. Whitman, 83 F. Supp. 2d 476, 485-89 (D.N.J. 2000) (§
622(b)(10)(B)(ii) is not so unambiguous as to confer a right enforceable
under § 1983); Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H. 1994)
(plaintiffs have no enforceable right to compel state’s implementation of
programs under predecessor to § 622(b)(10)(B)(ii)).
———— tS ;
App. 25a
Further, Congress has required the Secretary of
Health and Human Services to promulgate regulations for the
review of the child welfare and adoption assistance programs
set out in Parts B and E in order “to determine whether such
programs are in substantial conformity with — State plan
requirements under such parts B and E.” 42 U.S.C. § 1320a-
2a(a)(1) (emphasis added). The substantial conformity
requirement is similar to FERPA’s, which the Court in
Gonzaya concluded showed an aggregate instead of an
individual focus. 536 U.S. at 288, 122 S. Ct. at 2278; see also
Blessing, 520 U.S. at 335, 343, 117 S. Ct. at 1357, 1361
(holding that Title IV-D of the Social Security Act did not
Support a right enforceable pursuant to § 1983, in part
because the statute mandated “substantial compliance” with
federal regulations).
As for enforcement of §§ 675(5)(D) and (BE), it is true
that the statutes do not contain “a remedial scheme
sufficiently comprehensive to demonstrate congressional
intent to preclude the remedy of suits under § 1983.”
Blessing, 520 U.S. at 346, 117 S. Ct. at 1362 (internal marks
omitted). In fact, the Adoption Act contains no mechanism
by which aggrieved individuals can enforce its provisions.
Instead, the Secretary enforces the Adoption Act by requiring
the implementation of corrective action or withholding
federal funds if the states fail to comply with an approved
plan. See 42 U.S.C. § 1320a-2a. Federal regulations require
that the Secretary audit states to determine whether they are
in compliance. 45 C.F.R. §§ 1355.32-33; 1355.36. This
enforcement scheme is not like those that have been held by
the Supreme Court to preclude suits under § 1983. See
Gonzaga, 536 U.S. at 289-90, 122 S. Ct. at 2278-79 (creation
of centralized review board for individual complaints and
enforcement of FERPA precluded private suits); Smith v.
Robinson, 468 U.S. 992, 1010-12, 104 S. Ct. 3457, 3467-68
(1984), superseded in part by 20 U.S.C. § 1415 (review
App. 26a
scheme in Education of the Handicapped Act permitting
aggrieved individuals to invoke “carefully tailored” local
administrative procedures followed by federal judicial review
precluded § 1983 suits because such suits would “render
superfluous most of the detailed procedural protections
outlined in the statute’); Middlesex County Sewerage Auth.
vy. Nat’ Sea Clammers Ass’n, 453 U.S. 1, 13, 20, 101 S. Ct.
2615, 2623, 2626-27 (1981) (“unusually elaborate
enforcement provisions” of the Federal Water Pollution
Control Act, which provided many enforcement options,
including noncompliance orders, civil suits, and criminal
penalties and authorized private persons to initiate
enforcement actions, foreclosed § 1983 suit). Nonetheless, in
this case, the lack of an enforcement mechanism by which an
aggrieved individual can obtain review is but one of the
factors we consider. The others point in the other direction
and prevent us from saying that Congress spoke with a clear
voice to unambiguously manifest its intent to create
enforceable rights.
One other, more specific argument of the plaintiffs
needs to be discussed. They contend that § 103(c) of the
Adoption and Safe Families Act of 1997 (ASFA), Pub. L.
No. 105-89, 111 Stat. 2115,2119, shows that Congress
intended that the right to have parental rights termination
proceedings initiated within the statutory period be an
enforceable right for children in foster care. Section 103(c)
provides:
(1) NEW FOSTER CHILDREN.— In the case of a
child who enters foster care... under the responsibility
of a State after the date of the enactment of this Act—
(A) if the State comes into compliance with
the amendments made by [section 103(a), which
amended the Adoption Act] before the child has been
Bhs cs Seca sls aig loco ct 9a SOE
Be
SEIS vty 9 om RRIF a A
Pus uaa arena te
Sata IAAI iat aa aia ney Ay atts Ate MER RS RRR UR AN HID wher h EO
App. 27a
in such foster care for 15 of the most recent 22
months, the State shall comply with [42 U.S.C. §
675(5)(E)] with respect to the child when the child
has been in such foster care for 15 of the most recent
22 months; and
(B) if the State comes into such compliance
after the child has been in such foster care for 15 of
the most recent 22 months, the State shall comply
with [42 U.S.C. § 675(5)(E)] with respect to the child
not later than 3 months after the end of the first
regular session of the State legislature that begins
after such date of enactment.
(2) CURRENT FOSTER CHILDREN.— In the case
of children in foster care under the responsibility of
the State on the date of the enactment of this Act, the
State shall—
* &
(C) not later than 18 months after the end of
such first regular [legislative] session, comply with
[42 U.S.C. § 675(5)(E)] with respect to all of such
children.
ASFA § 103(c). Section 103(c) does mandate that a state
must comply with 42 U.S.C. § 675(5)(E) with respect to all
children in foster care.
However, when examined in light of the structure of
both that section of the ASFA and the Adoption Act as a
whole, § 103(c) is ambiguous. Section 103(c)(4) provides
that the requirements of § 103(c) “shall be treated as State
plan requirements imposed by [42 U.S.C. § 671(a)].”
Treating § 103(c) as a plan requirement means that the
Secretary is to review compliance with the requirements of
§ 103(c) only for substantial compliance, not for compliance
in every individual case. See 42 U.S.C. § 1320a-2a(a)(1)
App. 28a
(requiring Secretary to “promulgate regulations for the
review of such programs [under Parts B and E of Title IV] to
determine whether such programs are in substantial
conformity with — State plan requirements under such parts
B and E.”) (emphasis added). The substantial conformity
standard applicable to § 103(c) of the ASFA puts that
provision on the same footing as 42 U.S.C. §§ 675(5)(D) and
(E), and it prevents us from finding that the statute manifests
an unambiguous congressional intent to create a right
enforceable under § 1983.
Taken as a whole, §§ 675(5)(D) and (E) do not
contain rights-creating language; they have an aggregate, not
individual, focus. Those provisions do not give plaintiffs an
“unambiguously conferred right to support a cause of action
brought under § 1983.” Gonzaga, 536 U.S. at 283, 122 S. Ct.
at 2275. Congress has not spoken with a clear voice
manifesting an unambiguous intent for those provisions of
the Adoption Act to provide a basis for private enforcement.
Id. at 280, 122 S. Ct. at 2273; Pennhurst, 451 U.S. at 17,28 &
n.21, 101 S. Ct. at 1540, 1545 & n.21. Count IV of the
complaint, therefore, does not state a claim upon which relief
can be granted.
IV. YOUNGER ABSTENTION
Because some of the plaintiffs have standing to
pursue the constitutional claims, we turn to the issue arising
from the district court’s dismissal of Counts I through III
under the abstention doctrine of Younger v. Harris, 401 U.S.
37, 91 S. Ct. 746 (1971). We review an abstention decision
only for an abuse of discretion. Boyes v. Shell Oil Prods.
Co., 199 F.3d 1260, 1265 (11th Cir. 2000).
App. 29a
The Supreme Court has said that federal courts have a
“virtually unflagging obligation. . . to exercise the
jurisdiction given them.” Col. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236,
1246 (1976). But “virtually” is not “absolutely,” and in
exceptional cases federal courts may and should withhold
equitable relief to avoid interference with state proceedings.
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491
U.S. 350, 359, 109 S. Ct. 2506, 2513 (1989). While non-
abstention remains the rule, the Younger exception is an
important one. It derives from ‘the vital consideration of
comity between the state and national governments,” Luckey
v. Miller, 976 F.2d 673, 676 (11th Cir. 1992) (“Luckey”),’
which Younger itself characterized as a “sensitivity to the
legitimate interests of both State and National Governments,”
401 US. at 44, 91 S. Ct. at 750.
Although Younger concerned state criminal
proceedings, its principles are “fully applicable to
noncriminal judicial proceedings when important state
interests are involved.” Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515,
2521 (1982). “Proceedings necessary for the vindication of
important state policies or for the functioning of the state
judicial system. . . evidence the state’s substantial interest in
the litigation.” Id. “Where vital state interests are involved, a
federal court should abstain unless state law clearly bars the
interposition of the constitutional claims.” Id. (citation
omitted). As the Middlesex Court framed the issue, “The
question. . . is threefold: first, do [the proceedings] constitute
° The genealogy of the Luckey case is: Luckey v. Harris, 860 F.2d 1012
(1ith Cir. 1988) (“Luckey I’); Luckey v. Harris, 896 F.2d 479 (11th Cir.
1989) (“Luckey II”); Harris v. Luckey, 918 F.2d 888 (11th Cir. 1990)
(“Luckey III’); Luckey v. Miller, 929 F.2d 618 (1 1th Cir. 1991) (“Luckey
IV”) and Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) (“Luckey V”).
App. 30a
an ongoing state judicial proceeding; second, do the
proceedings implicate important state interests; and third, is
there an adequate opportunity in the state proceedings to
raise constitutional challenges.” Id. (emphasis omitted); see
also Old Republic Union Ins. Co. v. Tillis Trucking Co., 124
F.3d 1258, 1261 (11th Cir. 1997).
The parties agree, and so do we, that the continuing
state dependency proceedings involving each of the plaintiffs
are ongoing state proceedings for the purposes of Middlesex
analysis, see J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291
(10th Cir. 1999) (holding that continuing jurisdiction of
juvenile court and six month periodic review hearings
constituted an ongoing state judicial proceeding), although
they dispute whether this federal proceeding, if allowed to go
forward, would interfere with those state proceedings. The
parties also agree, and so do we, that important state interests
are involved. The parties disagree about whether the state
court dependency proceedings provide the plaintiffs with an
opportunity to raise and vindicate the federal constitutional
claims, if those claims are valid. We will start by addressing
whether the first Middlesex factor is properly read as
requiring federal court interference with state proceedings
and whether a federal court proceeding in this case would
interfere with the dependency proceedings. Then we will
address whether the plaintiffs have an adequate state remedy.
A. THE FIRST MIDDLESEX FACTOR
Both the plaintiffs and the defendants have presumed
the first Middlesex factor, in addition to requiring an ongoing
state proceeding, also requires that the federal relief the
plaintiffs seek would interfere with those proceedings, and
that if it would not interfere with the state proceedings, then
the federal court has no basis for abstaining under Younger.
App. 3la
See generally, Middlesex, 457 U.S. at 431, 102 S. Ct. at 2521
(“Younger v. Harris. . . and its progeny espouse a strong
federal policy against federal-court interference with pending
state judicial proceedings absent extraordinary
circumstances.”). Decisions from some other circuits support
that view. See. e.g., Green v. City of Tucson, 255 F.3d 1086,
1097 (9th Cir. 2001) (en banc) (“[T]he three part test we
derived from Middlesex is a suitable guide for analysis only
when the threshold condition for Younger abstention is
present — that is, when the relief sought in federal court
would in some manner directly ‘interfere’ with ongoing state
judicial proceedings.”); J.B., 186 F.3d at 1291 (stating first
Middlesex factor as requiring abstention under Younger
“when federal proceedings would. . . interfere with an
ongoing state judicial proceeding”); FOCUS v. Allegheny
County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir.
1996) (stating first Middlesex factor as “there must be an
ongoing state judicial proceeding to which the federal
plaintiff is a party and with which the federal proceeding will
interfere”).
We have not yet expressly held that the first
Middlesex factor requires that the federal proceeding
interfere with the state proceeding, but implicitly we seem to
have assumed as much. For example, in Old Republic, the
plaintiff filed a declaratory judgment action in federal court
to avoid paying a state court judgment and to have its
obligations under certain insurance policies determined by a
federal court instead of a state court. 124 F.3d at 1259. In
applying the Middlesex factors, we concluded that the first
factor was met, not simply because there was an ongoing
State proceeding, but because that proceeding would have
been effectively enjoined by a declaratory judgment issued
by the federal court. Id. at 1261-62; see also For Your Eyes
Alone. Inc. v. City of Columbus, 281 F.3d 1209, 1216 n.13
(llth Cir. 2002) (“[T]he Supreme Court has held that
App. 32a :
Younger abstention is sometimes applicable to restrain
federal court interference with certain noncriminal state
proceedings that implicate important state interests.”).
Indeed, the Supreme Court in Middlesex held that “[because
respondent.. . had an opportunity to raise and have timely
decided by a competent state tribunal the federal issues
involved, federal courts should abstain from interfering with
the ongoing proceedings.” 457 U.S. at 437, 102 S. Ct. at
2524 (emphasis added) (citation and internal quotation marks
omitted). Therefore, we join our sister circuits in explicitly
stating that an essential part of the first Middlesex factor in
Younger abstention analysis is whether the federal
proceeding will interfere with an ongoing state court
proceeding. If there is no interference, then abstention is not
required.
In order to decide whether the federal proceeding
would interfere with the state proceeding, we look to the
relief requested and the effect it would have on the state
proceedings. See O’Shea v. Littleton, 414 U.S. 488,499-502,
94 S. Ct. 669, 677-79 (1974); Luckey V, 976 F.2d at 679
(Younger and O’Shea require “focus on the likely result of an
attempt to enforce an order of the nature sought here”). The
relief sought need not directly interfere with an ongoing
proceeding or terminate an ongoing proceeding in order for
Younger abstention to be required. In O’Shea, the Supreme
Court held that abstention was required where an injunction
would have “indirectly accomplish[ed] the kind of
interference that Younger v. Harris. . . and related cases
sought to prevent.” Id. at 500, 94 S. Ct. at 678 (emphasis
added). The plaintiffs in O’Shea did not seek to enjoin
directly any pending prosecutions but apparently did seek a
federal court injunction aimed at controlling or preventing
the occurrence of specific events that might take place in the
course of future state criminal trials. The requested injunction
contemplated interruption of the state proceedings in order
App. 33a
for the federal court to adjudicate compliance by the
defendants with the injunction, through what the Supreme
Court called “an ongoing federal audit of state criminal
proceedings.” Id. at 500, 94 S. Ct. at 678. The Court found
that the injunction “would disrupt the normal course of
proceedings in the state courts via resort to the federal suit
for determination of the claim ab initio.” Id. at 501, 94S. Ct.
at 679.
We applied the reasoning of O’Shea in Luckey V.
976 F.2d at 678-79. In that case, the plaintiffs had asserted a
class action on behalf of “all individuals who are or will in
the future be adversely affected by the unconstitutional
practices of the indigent defense system within Georgia.” Id.
at 676. They sought injunctive relief to reform the indigent
defense system, including orders that the system provide
speedy appointment of counsel and ensure that there would
be counsel at all probable cause determinations, and would
have required monitoring the implementation of the
injunction. Id. Adopting in full the explanation in the district
court’s abstention order. we concluded that the decree
requested by the plaintiffs inevitably would interfere with
State criminal proceedings. Id. at 677.
Luckey V did not involve a direct termination of
ongoing state proceedings, and the plaintiffs did not directly
contest any single criminal conviction or seek to restrain any
individual prosecution. Nevertheless, as we observed, the
injunctive relief the plaintiffs sought would have had the
effect of restraining every indigent prosecution until the
systemic improvements they wanted were in place. Id. We
focused on the effect of the requested relief on the state
proceedings. See id.; see also Joseph A. ex rel. Wolfe v.
Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (“Younger
governs whenever the requested relief would interfere with
the state court’s ability to conduct proceedings, regardless of
App. 34a
whether the relief targets the conduct of a proceeding
directly.”) (citing News-Journal Corp. v. Foxman, 939 F.2d
1499, 1511 (11th Cir. 1991) (affirming district court’s
decision to ubstain under Younger from hearing newspaper's
challenge to state court’s pre-trial order because an injunction
would restrict the ability of the state court to impanel an
impartial jury)).
Whether the effect of the federal court injunctive
relief the plaintiffs seek in this lawsuit will interfere with
ongoing state dependency proceedings depends in part upon
the nature and extent of those proceedings. The state trial
level courts of Florida play a critically important role in
dependency hearings from the outset of a child’s case. After
the Department files a petition for dependency, the court
holds an adjudicatory hearing as soon as practicable. Fla.
Stat. § 39.507. If the facts alleged in the dependency petition
are proven in the adjudicatory hearing and the child is
determined to be dependent, the state court conducts a
disposition hearing. Id. §§ 39.507(7); 39.52 4(1). The
Department must prepare a written case plan and a
predisposition study and file these items with the court no
later than 72 hours before the disposition hearing. Id. § 39.52
1(1)(a).
The case plan is a document that “follows the child
from the provision of voluntary services through any
dependency, foster care, or termination of parental rights
proceeding or related activity or process.” Id. § 39.0 1(11). It
must include, among other items, a description of the
permanency goal for the child, a description of the type of
home or institution in which the child is to be placed, a
discussion of the safety and appropriateness of the child’s
placement, the services that the child needs and will receive,
a description of the visitation rights of the parents, and a
App. 35a
description of the efforts to be undertaken to maintain the
stability of the child’s education. Id., § 39.601(3)(a)-(i).
The case plan must be approved by the court. Id. §§
39.601(2), (3); 39.603. It may be amended if all the parties
agree and the court approves, or after a hearing it may be
amended by the court on its own motion or that of a party,
based on competent evidence that demonstrates the need for
an amendment. Id. § 39.601(9)(f). If at the hearing on the
case plan, which occurs in conjunction with the disposition
hearing, the court determines that any of the elements
required in the plan are not present, it can order the
Department to amend the plan to include what is necessary.
Id. § 39.603(2).
The state court has continuing jurisdiction over a
dependency case and reviews the child’s status at least every
six months. Id. § 39.701(1)(a). Prior to the review hearing, the
Department must furnish to the court a written report that
includes, among other items, a description of the placement
of the child, its appropriateness, the safety of the child, the
number of placements, documentation of the efforts of all
parties to comply with the case plan, the number of times the
child’s educational placement has been changed, and copies
of all medical and psychological records that support the
terms of the case plan. Id. § 39.701(6)(a). At the review
hearing, the court considers the child’s Situation, including
whether there has been compliance with the case plan, the
appropriateness of the child’s current placement, and whether
the child is in a setting that is family-like and consistent with
the child’s best interests and special needs. Id.
39.701(7)(d), (g). No later than 12 months after the date that
the child is placed in shelter care, the court must conduct a
judicial review to plan for the child’s permanent placement.
Id. § 39.701(8)(f). If the child is not returned to his parents,
the case plan must document steps the Department is taking
App. 36a
to find an adoptive parent or other permanent living
arrangement for the child. Id.
If the Department has not complied with the case
plan, the court may find it in contempt. Id. § 39.701(8)(c).
The court can also issue protective orders. Id. § 39.701(8)(g).
A protective order can require a person or agency to make
periodic reports to the court containing such information as
the court prescribes. Id. The court can issue a protective order
in support of, or as a condition to, any other order it may
make. Id.
The Tenth Circuit has addressed two cases similar to
this one and held that abstention was required because the
plaintiffs’ federal proceeding would interfere with the state
court proceedings by “fundamentally changing the
dispositions and oversight of the children.” J.B., 186 F.3d at
1291-92; see also Joseph A., 275 F.3d 1253. In J.B., the
plaintiffs, mentally or developmentally disabled children in
the custody of New Mexico, alleged violations of the
Constitution and federal statutes and brought suit against
several state officers in their official capacities, seeking
declaratory and injunctive relief. The Tenth Circuit
concluded that the relief requested would give the federal
district court an oversight role over the entire state program
for children with disabilities and would give it control over
decisions then in the hands of the New Mexico Children’s
Court, such as whether to return a child to his parents or
whether to modify a treatment plan. J.B., 186 F.3d at 1292.
In the other similar case decided by the Tenth Circuit,
Joseph A.., the plaintiffs, who were children in New Mexico’s
custody because of abuse or neglect, and the New Mexico
Department of Human Services had entered into a federal
court consent decree. 275 F.3d at 1259. When the plaintiff
App. 37a
children moved the court to hold the Department in contempt
for allegedly violating the consent decree, the Department
moved for dismissal based on Younger abstention. The Tenth
Circuit held that federal court enforcement of certain
provisions of the decree would interfere with the ongoing
juvenile proceedings in the state court.!° Id. at 1272. It
concluded that “federal court Oversight of state court
operations, even if not framed as direct review of state court
judgments, may nevertheless be problematic for Younger
purposes,” citing O’Shea and Luckey V. at 1271.
In this case, the plaintiffs are seeking relief that would
interfere with the ongoing state dependency proceedings by
placing decisions that are now in the hands of the state courts
under the direction of the federal district court. The
declaratory judgment and injunction that they request would
interfere with the state proceedings in numerous ways. The
federal and state courts could well differ, issuing conflicting
orders about what is best for a particular plaintiff, such as
whether a particular placement is safe or appropriate or
whether sufficient efforts are being made to find an adoptive
family. The federal court relief might effectively require an
amendment to a child’s case plan that the state court would
not have approved, and state law gives its courts the
responsibility for deciding upon such an amendment. See
Fla. Stat. § 39.601(9)(f). Even though any remedial order
would run against the Department, state law makes it a duty
of state courts to decide whether to approve a case plan, and
to monitor the plan to ensure it is followed. Id. § 39.701(1),
(7)-(8). The plaintiffs seek to have the district court appoint a
'° Some of the provisions that the Tenth Circuit cited as “(particularly
problematic” under Younger included provisions governing assessment
and treatment planning conferences for children entering the Department
of Human Services’ custody and periodic review of the Department’s
plans for those children. Joseph A., 275 F.3d at 1267-68.
App. 38a
panel and give it authority to implement a systemwide plan
to revamp and reform dependency proceedings in Florida, as
well as the appointment of a permanent children’s advocate
to oversee that plan. To say the least, taking the responsibility
for a state’s child dependency proceedings away from state
courts and putting it under federal court control constitutes
“federal court oversight of state court operations, even if not
framed as direct review of state court judgments” that is
problematic, calling for Younger abstention. Joseph A., 275
F.3d at 1271. The relief that the plaintiffs seek would
interfere extensively with the ongoing state proceedings for
each plaintiff." The first Middlesex factor is satisfied.
B. THE THIRD MIDDLESEX FACTOR
As for the other Middlesex factor that is disputed, the
third one, the plaintiffs have the burden of establishing that
the state proceedings do not provide an adequate remedy for
their federal claims. Butler v. Ala. Judicial Inquiry Comm’n,
261 F.3d 1154, 1159 (11th Cir. 2001). “Minimal respect for
'! The plaintiffs argue that the requested relief would not interfere
because it is directed solely at the Department of Children and Families
and not the state courts. We previously rejected essentially that same
argument in Luckey V, and we reject it again here. In that case, the
plaintiffs sued the Governor of Georgia and all state court judges who
presided over prosecutions of indigent defendants. 976 F.3d 673, 678.
The plaintiffs contended that the relief they requested against the
Governor of Georgia would not interfere with state court proceedings
because the onus to comply would be on the state executive and not the
judiciary. Id. We observed that “a case cannot be decided in a vacuum,
and the potential enforcement difficulties of any order reforming such an
integral aspect of a state criminal justice process as the indigent defense
system would be significant.” Id. at 679. This case raises the same
concerns that Luckey V did, and the federal court relief the plaintiffs seek
would interfere with the ongoing state dependency hearings, even if it
were directed against the Department and state officers, instead of state
courts and judges.
a Se
App. 39a
the state processes, of course, precludes any presumption that
the state courts will not Safeguard federal constitutional
rights.” Middlesex, 457 U.S. at 431, 102 S. Ct. at 2521. A
federal court “should assume that state procedures will afford
an adequate remedy, in the absence of unambiguous
authority to the contrary.” Pennzoil Co. v. Texaco. Inc., 481
U.S. 1, 15, 107 S. Ct. 1519, 1528 (1987). Plaintiffs, having
failed to use their federal Claims in the ongoing state
Proceedings involving them, must overcome this initial
presumption by demonstrating that the state remedies are
inadequate. Butler, 261 F.3d at 1159.
In determining whether the State remedies are
adequate, as the district court correctly observed, “Tt}he
relevant question is not whether the state courts can do all
that Plaintiffs wish they could, but whether the available
remedies are sufficient to meet Pennzoil’s requirement that
the remedy be adequate.” The district court found that “the
juvenile court can act to protect children within its
jurisdiction,” citing Dep’t of Children & Family Servs. v.
LC., 742 So. 2d 401, 404 (Fla. 4th DCA 1999), and declined
to hold that the remedies available are inadequate. We agree
with its conclusion.
A Florida state court can remedy in a dependency
proceeding the harms that a child in the defendants’ custody
and in that court’s jurisdiction might suffer. Although the
Department has discretion regarding the identification of a
specific placement for a child, State v. Brooke, 573 So. 2d
363, 368 (Fla. Ist DCA 1991), the court can order that
siblings be placed together in foster care, one of the very
things that some of these plaintiffs seek. See Div. of Family
Servs. v. S.R., 328 So. 2d 270, 271 (Fla. Ist DCA 1976);
F.B. v. State, 319 So. 2d 77, 79 (Fla. Ist DCA 1975). The
court can order that a child be placed in a therapeutic setting,
In the Interest of L.W., 615 So. 2d 834, 839 (Fla. 4th DCA
App. 40a
1993), and that a child be treated by a licensed health care
professional or receive mental health treatment. Fla. Stat. §
39.407(4). While the state court cannot compel the
Department to place children where space is not available,
Dep’t of Children & Family Servs. v. M.H., 830 So. 2d 849,
850 (Fla. 2d DCA 2002), it can hold the Department in
contempt for failing to comply with a child’s case plan and
can order the Department to submit proposals for
compliance. Fla. Stat. § 39.701(8)(c); L.W., 615 So. 2d at
837-38. Even though the court cannot prevent the
Department from using unsafe or inappropriate facilities for
all children, as to those children within its division, the court
can take protective measures. It can determine whether a
facility in which a child is located is safe, either by
appointing a child’s representative to make an inquiry or
itself investigating conditions at the facility. Fla. Stat.
§ 39.701(8)(g); LC., 742 So. 2d at 405. If the investigation
reveals that a child within the jurisdiction of the court
(meaning within its division) is in a dangerous facility, the
court can take action, including finding the Department in
contempt for failing to comply with the child’s case plan. See
generally, Fla. Stat. §§ 39.601(3)(e); 39.701(8)(c); LC., 742
So.2d at 404-06. Case plans always call for an appropriate
placement, and an unsafe facility is not an appropriate one.
Fla. Stat. § 39.601(3)(e) (“placement is intended to be safe,
the least restrictive and most family-like setting available
consistent with the best interest and special needs of the
child, and in as close proximity as possible to the child’s
home”).
Again, the Tenth Circuit’s decisions in similar cases
are helpful. In J.B., that Court affirmed the district court’s
decision to abstain, because the plaintiffs had failed to show
clearly that they could not have raised their claims in their
periodic review hearings in the New Mexico Children’s
Court. 186 F.3d at 1292. The Court concluded that New
App. 4la
Mexico law “seemingly grants the Children’s Court wide
power to determine the needs and claims of children during
the periodic review proceeding.” Id. Additionally, because
the Children’s Court was a court of general jurisdiction and
had full constitutional powers under New Mexico law, the
plaintiffs had not provided the “unambiguous authority” that
Pennzoil requires to prove that the state courts could not
afford an adequate remedy. Id. at 1292-93.
In Joseph A., the Tenth Circuit held that a certified
class of plaintiffs had not shown that the New Mexico
Children’s Court offered inadequate opportunities to raise
federal constitutional and statutory claims. 275 F.3d at 1274.
The plaintiffs in that case argued that the systemwide,
structural relief they sought was not available in the
Children’s Court and cited a New Mexico decision, In re
T.B., 913 P.2d 272 (N.M. App. 1996), for that proposition.
The Tenth Circuit was not convinced the T.B. decision
established the Children’s Court was precluded from granting
systemic relief. 275 F.3d at 1274 n.6. Although in T.B. the
Children’s Court had dismissed a motion brought under §
1983 to require the Department of Human Services “to
submit an action plan for a system for the proper licensure
and regulation of therapeutic foster care,” the New Mexico
Court of Appeals had addressed the dismissal only in dicta,
noting that the guardian ad litem who had filed the motion
had failed to identify which federal laws secured the rights
the plaintiffs sought to enforce. Id. The Court held that the
plaintiffs had not provided unambiguous authority that the
relief they sought was unavailable. Id. at 1274.
In the present case, each of these plaintiffs is
represented by counsel. There are no procedural constraints
preventing them from presenting the claims in this case to the
state courts in their dependency review hearings. They have
not provided unambiguous authority establishing that the
App. 42a
procedures available in state court dependency proceedings
’ do not provide an adequate opportunity for them to raise their
constitutional claims. At dependency review proceedings for
each plaintiff in this case, the state court will consider
whether the parties have complied with the child’s case plan,
the appropriateness of that child’s current facility placement,
educational placement, and any special needs the child has.
Fla. Stat. §§ 39.701(7)(d), (g)- If the Department is not
complying with the case plan for the child, the court can hold
it in contempt. Id. §§ 39.701(8)(c), (g). If the plaintiff claims
that he is in an unsafe and inappropriate placement, as we
have already noted, the court can order the Department to
comply with the case plan by putting him in a safe and
appropriate place. Id. §§ 39.601(3)(e); 39.701(8)(c). If the
plaintiff claims that he has been in foster care longer than
reasonably necessary, the court can require the Department to
document the steps that it is taking toward permanent
placement. Id. §§ 39.701(f). If the plaintiff has not been
placed with his siblings, the court can order them be placed
together or it can require visitation between them. See Div. of
Family Servs. v. S.R., 328 So. 2d 270, 271 (Fla. 1st DCA
1976).
The availability of these forms of relief and the
existence of the state courts’ protective order and contempt
powers mean that the plaintiffs have not carried their burden
of establishing that the ongoing state court proceedings do
not provide an adequate opportunity to raise and vindicate
each plaintiff child’s individual claims.'* Therefore, the third
” In LaShawn A. ex rel, Moore v. Kelly, 990 F.2d 1319, 1323-24
(D.C. Cir. 1993), the Court held that the District of Columbia’s juvenile
review proceedings did not provide the plaintiffs an adequate opportunity
to raise their constitutional challenges. The plaintiffs in that case brought
a class action on behalf of children who were in foster care under the
supervision of the District of Columbia Department of Human Services,
alleging widespread federal constitutional and statutory violations. The
App. 43a
and final Middlesex factor is satisfied. The district court did
not abuse its discretion in abstaining under the Younger
doctrine.
D.C. Circuit affirmed the district court’s decision that Younger abstention
was not warranted after noting that the state court had “explicitly rejected
the use of review hearings to adjudge claims requesting broad-based
injunctive relief based on federal law” in In re Brim, No. 489-80 (D.C.
Super. Ct. July 20, 1984). In the Brim case the family court had denied a
motion by two children for injunctive relief against the Department for its
alleged mishandling of Social Security disability payments it had
collected on the children’s behalf and noted that the appropriate forum for
such issues is federal court. LaShawn A., 990 F.2d at 1323. The D.C.
Circuit therefore rejected Younger abstention because “there was no
pending judicial proceeding in the District of Columbia which could have
served as an adequate forum for the class of children in this case to
present its multifaceted request for broad-based injunctive relief based on
the Constitution and on federal and local statutory law.” Id.
In contrast to the D.C. Circuit, however, in this circuit’s Younger
decisions, we have not determined whether the broad relief the plaintiffs
would prefer is available but instead whether the forum itself is adequate
for addressing the claims and providing a sufficient remedy to the
individual plaintiffs. In the Luckey case, the plaintiffs sought broad-based
injunctive relief to reform Georgia’s indigent defense system. Luckey V,
976 F.2d at 676. Although we did not expressly address the third
Middlesex factor in our opinion in that case, we did affirm the district
court’s decision to abstain under Younger. Id. at 679. The decision turned
on the fact that the Luckey plaintiffs could have brought their challenges
in their individual criminal trials, even though it is obvious that the broad-
sweeping remedy they sought was unavailable there. “Equity need not
intervene immediately in plaintiffs’ state trials. Plaintiffs have an
adequate remedy at law for any ineffective assistance of counsel they
may actually receive Most important, they can present objections to sixth
amendment violations at their state trials and in their state appeals.”
Luckey v. Harris, 896 F.2d 479, 482 (11th Cir. 1989) (“Luckey _IT’’)
(Edmondson, J., dissenting).
App. 44a
V. CONCLUSION
Insofar as it relates to Larissa C. and Leanne G., the
district court’s judgment is VACATED and the case is
REMANDED with instructions to dismiss that part of the
amended complaint as moot. Insofar as it relates to Tanya M.
and Elaine R., the district court’s judgment is VACATED
and the case is REMANDED with instructions to dismiss that
part of the amended complaint for lack of standing. The
district court’s judgment is also VACATED as to those
portions of the complaint for which the each of the seven
remaining plaintiffs do not have standing, as discussed in
Part II, and the case is REMANDED with instructions to
dismiss those portions of the amended complaint for lack of
standing. In all other respects, the district court’s judgment is
AFFIRMED.
App. 45a
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 00-2116-CIV-MORENO
FOSTER CHILDREN BONNIE L., by and through her
next friend Donald Hadsock, et al.,
Plaintiffs,
v.
JEB BUSH, as Governor of the State of F lorida, et al.,
Defendants.
ORDER GRANTING IN PART DEFENDANTS’
MOTIONS TO DISMISS
Plaintiffs filed this action for declaratory and
injunctive relief relating to the operation of Florida’s foster
care system. The 116 page, 226 paragraph, six count
Amended Complaint seeks relief pursuant to 42 U.S.C.
§ 1983 and is brought on behalf of Florida’s 15,000 foster
children. The suit challenges Defendants’ pattern and
practice of failing to fulfill their constitutional and statutory
obligations toward the safety, stability, and health of the
children, and deliberate indifference toward the alleged
pattern and practice.
App. 46a
The Amended Complaint alleges violations of
(1) substantive due process; (2) procedural due process;
(3) the First, Ninth and Fourteenth Amendment rights to
familial association; (4) violation of the federal Adoption and
Safe Family Act; (5) violation of the Early Periodic
Screening, Diagnosis and Treatment (EPSDT) provision of
Medicaid; and (6) violation of rights under the Title VI
financial assistance program. As of the time of the Amended
Complaint, the Plaintiffs and putative class representatives
included Bonnie L., age 17, Reggie and Rebecca B,, ages 13,
Laurie and Lillie S., ages 10 and 8, Leslie F., age 17, Sandra
M., age 16, Tanya M., age 14, Jay and Candice D., age 9 and
10, Matthew I., age 2, Hugh S., age 16, Leanne and Tammy
G., ages 2 and 9, Elaine R., age 11, Paul B., age 16, Rachel
C., age 13, Cathy W., age 12, Larissa C., age 2, John J., age
12, and Melinda and Karina, ages 18 and 17. The Amended
Complaint gives an extensive account of each Plaintiff's
experience in the foster care system, an account of each
youth is more fully described in Magistrate Judge Dubé’s
Report and Recommendation of April 20, 2001. Defendants
are Governor Jeb Bush, Judge Kathleen Kearney, Secretary
of Department of Children and Family Services (the
“Department” or “DCF”), and District Administrators Chuck
Bates, John Awad, Ester Tibbs, Lee Johnson, Lynn Richard,
Don Dixon, Robert Morin, Fran Gibbons, Paul Brown,
Charles Auslander, Christine Davenport, Patrick Howard,
Sue Gray, and Vern Martin.
All Defendants except Governor Bush filed a
collective motion to dismiss (D.E. No. 93) asserting various
grounds discussed more fully below. Governor Bush’s
motion to dismiss (D.E. No. 94) asserts the additional
grounds that as alleged there is no basis for equitable relief
against the Governor and there is no basis for liability under
§ 1983. All Defendants have supplemented arguments raised
in their initial motion to dismiss by filing additional motions
App. 47a
to dismiss. These additional motions to dismiss seek to
dismiss certain claims for lack of standing (D.E. No. 335), to
dismiss certain named plaintiffs for mootness (D.E. No. 336),
and to dismiss the action based on abstention and Eleventh
Amendment grounds (D.E. No. 408).
Analysis
A. Eleventh Amendment Immunity
Defendants claim that this action should be barred on
Eleventh Amendment Grounds. The Eleventh Amendment
states, “The judicial powers of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI. The Amendment applies
equally to suits against a state initiated by that state’s own
citizens. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct.
1347, 1356 (1974); Summit Medical Assoc., P.C. y. Pryor,
180 F.3d 1326, 1336 (11th Cir. 1999). There is a long
recognized exception to this rule for suits against state
officers seeking prospective equitable relief to end ongoing
and continuous violations of federal law. See Ex parte Young,
209 U.S. 123, 28 S.Ct. 441 (1908); Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 269, 117 S.Ct. 2028, 2034 (1997).
Generally, the Eleventh Amendment does not bar the
exercise of the judicial power where a plaintiff seeks to
compel a state to comply with federal law. Summit, 180 F.3d
at 1336.
A suit seeking prospective rather than retrospective
relief is not barred so long as the prospective relief sought is
not the functional equivalent of money damages. Edelman.
415 US. at 669, 94 S.Ct. at 1358. “In other words, a plaintiff
App. 48a
may not use the doctrine to adjudicate the legality of past
conduct” Summit, 180 F.3d at 1337 (citing Papasan v. Allian,
478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940(1986)). As
stated in the Magistrate’s Report and Recommendation, “In
the present case, the Amended Complaint seeks a declaration
that certain acts by the Defendants are unconstitutional and
unlawful and asks the Court to enjoin such practices and take
remedial action to ensure that the Defendants comply with all
such laws in the future.” Foster Children v. Jeb Bush, No.00-
2116, slip op. at 20 (S.D. Fla. April 20,2001)(Magistrate
Report & Recommendation). “An allegation of an ongoing
violation of federal law where the requested relief is
prospective is ordinarily sufficient to invoke the Young
fiction.” Coeur d’Alene Tribe, 521 U.S. 261, 281, 117 S.Ct.
2028, 2040.
The inquiry does not end there, however, as
Defendants rely on Coeur d’Alene in support of its position
that the Eleventh Amendment bars this Court from hearing
this suit. Defendants contention is that state dependency
courts are already addres’ ag many of the issues raised in this
suit, however, they faii to specify which aspects are being
addressed. Defendants note that in Coeur d'Alene Justice
Kennedy remarked, “A doctrine based on the inherent
inadequacy of state forums would run counter to basic
principles of federalism.” Jd. at-275, 117 S.Ct at 2037 (non-
majority opinion). This portion of Justice Kennedy’s opinion,
found in part II. B., however, did not receive the support of
five Justices and, therefore, is not part of the Supreme
Court’s holding. Nevertheless, there are two doctrines that
merit examination and their relationship to the individual
causes of action asserted in the instant suit, one from Idaho v.
Coeur d’Alene Tribe, 521 U.S. 261, 117 S.Ct. 2028 (1997),
the “special sovereign interests doctrine,” and one from
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct.
App. 49a
1114 (1996), involving the existence of a detailed remedial
scheme.
1. Coeur d’Alene’s Special Sovereign Interests
The Coeur d'Alene Court limited the Ex parte Young
doctrine when the equitable relief sought “implicates special
sovereign interests.” Coeur d ‘Alene Court, 521 US. 261,
281, 117 S.Ct. 2028, 2040. In that suit an Indian tribe sought
declaratory and injunctive relief to resolve the tribe’s right to
quiet enjoyment over certain state lands. In finding that the
Eleventh Amendment barred the action despite the fact that
the suit sought only Prospective injunctive relief, the Court
held, “that if the Tribe were to prevail, Idaho’s ‘sovereign
interest in its lands and waters would be affected in a degree
fully as intrusive as almost any conceivable retroactive levy
upor funds in its Treasury.” Jd. at 287, 117 S.Ct. at 2043.
Although no reported Eleventh Circuit case has
analyzed in detail Coeur d’Alene’s “special sovereign
interests” requirement in a suit for prospective relief from the
ongoing violation of federal laws and for reform of a state’s
system,'? Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998),
decided after Cveur d'Alene, dealt with Eleventh
Amendment immunity in a_ suit seeking prospective
injunctive relief to enjoin violations of the Medicaid Act, 42
U.S.C. § 1396(a)(8). Id at 711. The Doe -court relied on
Tallahassee Mem. Reg. Med Ctr. v. Cook, 109 F.3d 693 (11th
Cir. 1997), a suit about the organizational and funding
deficiencies in the state’s medical assistance program, and
neld that “the instant lawsuit fits neatly within the Ex parte
Young exception. Like the hospitals in Cook, the appellees in
this case seek prospective injunctive relief to enjoin state
. Summit Med. Assoc., P.A. v. Pryor, 180 F.3d 1326 (11th Cir.
1999), was a suit challenging Alabama’s partial-birth abortion act.
App. 50a
officials from continuing to violate federal law, that is, the
Medicaid Act.” Thus, the Eleventh Amendment did not bar
the federal court from hearing that controversy.
The Tenth Circuit, meanwhile, has considered Coeur
d’Alene’s impact in two suits closely analogous to the instant
suit. In both cases the Tenth Circuit determined that
administering a welfare program is not a “special sovereign
interest,” and looked to Doe v. Chiles from the Eleventh
Circuit.
In J.B. ex rel. Hart v. Valdez, 186 F.3 d 1280 (10th
Cir. 1999), plaintiffs sought prospective injunctive relief to
reform the way the state was administering a welfare
program in a putative class action involving mentally or
developmentally disabled children in the custody of the state
of New Mexico. After a thorough examination of Supreme
Court precedent and Coeur d’Alene, the Valdez court held,
“A state’s interest in administering a welfare program at least
partially funded by the federal government is not such a core
sovereign interest as to preclude the application of Ex parte
Young.” Valdez, 186 F.3d at 1287 (citing Doe v. Chiles, 136
F.3d 709, 720 (11th Cir. 1998)).
The court in Joseph A. v. Ingram, 262 F.3d 1113
(10th Cir. 2001), used Valdez to reach an identical result in a
suit seeking prospective injunctive relief for the Adoption
and Safe Families Act of 1997 (“ASFA”), 42 U.S.C. § §
673b, 679b & 678, and the Adoption Assistance and Child
Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. After noting
that Valdez was squarely on point with its case, the Joseph A.
court held, “Although we recognize that a state’s
administration of federally-funded welfare programs for
children in its custody involves important state interests,
those interests do not implicate the ‘essential attribute[s] of
App. 5la
sovereignty’ with which Coeur d'Alene was concerned.
Therefore, we hold that Coeur d’Alene does not remove this
action from the scope of the Ex parte Young doctrine.”
Joseph A., 262 F.3d at 1120 (internal citations omitted).
Coeur d’Alene does not serve as a bar to Plaintiffs’
EPSDT Medicaid Act count, see Doe v. Chiles, 136 F.3d
709, 720 (11th Cir. 1998), Plaintiffs’ ASFA count, see
Joseph A. v. Ingram, 262 F.3d 1113 (10th Cir. 2001), or the
Title VI claims. See Sandoval vy. Hagan, 197 F.3d 484 qai*
Cir. 1999) rev'd on other grounds sub nom. Alexander vy.
Sandoval, 531 U.S. 1049, 121 S.Ct. 1511 (2001) (holding
State waived sovereign immunity by receiving federal funds
and that prospective injunctive relief is still available against
director in his official capacity for continuing violations).
2. Detailed Remedial Scheme - Seminole Tribe
In Seminole Tribe of Fla. v. Florida, 517 U.S. 44,116
S.Ct. 1114 (1996), the Supreme Court established that the
Eleventh Amendment bar, lifted by Ex parte Young for suits
seeking prospective injunctive relief, should not be raised
where Congress has created a detailed remedial scheme for
the enforcement of a statutorily created right against a state.
Id. at 74, 116 S.Ct. at 1132. The Court held:
[T]he question is not whether a remedy should be
created, but instead is whether the Eleventh
Amendment bar should be lifted, as it was in Ex parte
Young, in order to allow a suit against a state officer.
Nevertheless, we think that the same general principle
applies: Therefore, where Congress has prescribed a
detailed remedial scheme for the enforcement against
a State of a statutorily created right, a court should
hesitate before casting aside those limitations and
permitting an action against a state officer based upon
Ex parte Young.
———
App. 52a
Id. A key factor that a court must consider in applying
Seminole Tribe is whether “Congress chose to impose upon
the State a liability that is significantly more limited than
would be the liability imposed upon the state officer under Ex
parte Young.” Id. at 76-77, 116 S.Ct. at 1133. Where such
liability is limited by the remedial scheme created by
Congress, it is a strong indication that Congress had no wish
to allow for the application of Ex parte Young. Id. The
Seminole Tribe Court ultimately determined that “Ex parte
Young is inapplicable to petitioner’s suit against the
Governor of Florida, and therefore that suit is barred by the
Eleventh Amendment and must be dismissed for a lack of
jurisdiction.” Jd.
Defendants claim that the administrative remedy
provided by EPSDT is a sufficient enforcement scheme to
invoke Seminole Tribe. Defendants’ contention is that
Piaintiffs “must compel HHS - which can and must be sued
in federal court - to find Florida out of compliance with
federal law and to seek to withhold Florida’s federal share of
Medicaid payments.” Def. Mot. to Dis. at 20-21.
In Seminole Tribe, the Court was confronted with the
Indian Gaming Regulatory Act, 25 U.S.C. §2710(d). The
Court concluded after examining the statutory scheme that
Congress intended the provisions of § 2710(d)(3)"* to be
enforced in an action brought under § 2710(d)(7). Section
2710(d)(7) confers jurisdiction on federal district courts to
hear a controversy between the Indian tribe and the State
with whom the negotiations on the compact are required
under § 2710(d)(3), and serves to limit the relief that can be
administered. Section 2710(d)(7) allows the Indian tribe itself
'4 Section 2710(d)(3) “imposes upon the States a duty to negotiate in good
faith with an Indian tribe toward the formation of a compact” concerning
gaming activities. Seminole Tribe, 517 U.S. at 1119, 116 S.Ct. at 47.
rr
App. 53a
to initiate the suit and take advantage of the statutory
remedial scheme that the Court determined prevented the
application of Ex parte Young. See 25 U.S.C. § 2710(d)(7)
(“An Indian tribe may initiate a cause of action described in
° 42 C.F.R. § 430.38 deals wi
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.