Section 1983 Litigation/Enforcement of Federal Statutes Under § 1983

Some federal statutory rights may be enforced under § 1983. In Maine v. Thiboutot,^[1] the Supreme Court rejected the argument that only federal statutes dealing with “equal rights” or “civil rights” are enforceable under § 1983. It held that § 1983’s reference to “laws” of the United States means what it says, and, therefore, that all federal statutes are enforceable under § 1983 against defendants who acted under color of state law. However, as discussed below, subsequent Supreme Court decisions substantially cut back the decision in Thiboutot by holding that not all federal statutes are enforceable under § 1983.^[2] These decisions hold that a federal statute is not enforceable under § 1983 if it either (1) does not unambiguously create a federal right in the plaintiffs, or (2) contains enforcement remedies intended by Congress to be the exclusive means of enforcement.

Enforcement of Federal “Rights”[edit | edit source]

For a federal statute to be enforceable under § 1983, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”^[3] The Supreme Court has identified three factors to determine whether a particular federal statutory provision creates an enforceable federal right in favor of the plaintiff:

First, Congress must have intended that the provision in question benefit the plaintiff.^[4]

Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence.^[5]

Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.^[6]

The pertinent issue is not whether the federal statutory scheme creates enforceable rights, but whether the specific federal statutory provision at issue creates enforceable rights.^[7]

In Pennhurst State School & Hospital v. Halderman,^[8] the Supreme Court held that 42 U.S.C. § 6009, the “bill of rights” provision of the Developmental Disabilities Assistance and Bill of Rights Act, did not create enforceable rights in favor of the developmentally disabled.^[9] The Court identified the inquiry as whether the statutory provisions at issue “imposed an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms.”^[10] Applying the principle that “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously,”^[11] the Court found that “the provisions of § [6009] were intended to be hortatory, not mandatory.”^[12] “Congress intended to encourage, rather than mandate, the provision of better services to the developmentally disabled.”^[13] Therefore, the Court held that § 6009 did not create substantive rights in favor of the mentally disabled to “appropriate treatment” in the “least restrictive” environment, and thus was not enforceable through § 1983.^[14]

In its next several decisions concerning the enforcement of federal statutes under § 1983, the Supreme Court found that federal statutes created enforceable rights. In Golden State Transit Corp. v. City of Los Angeles,^[15] the Court held that Golden State could sue for damages under § 1983 to remedy the violation of its right against unfair labor practices under the National Labor Relations Act^[16] not to have the renewal of its taxi license conditioned on the settlement of a pending labor dispute.^[17] The Court found that the federal statute created enforceable rights in the plaintiff and did not contain a comprehensive enforcement scheme precluding enforcement under § 1983.^[18]

In Wright v. City of Roanoke Redevelopment & Housing Authority,^[19] the defendant was a public housing authority subject to the Brooke Amendment’s “ceiling for rents charged to low-income people living in public housing projects.”^[20] The Department of Housing and Urban Development in its implementing regulations, had “consistently considered ‘rent’ to include a reasonable amount for the use of utilities.”^[21] Public housing tenants brought suit under § 1983 alleging that the Roanoke Housing Authority had “imposed a surcharge for ‘excess’ utility consumption that should have been part of [the plaintiffs’] rent and deprived them of their statutory rights to pay only the prescribed maximum portion of their income as rent.”^[22] The Supreme Court determined that the Brooke Amendment to the U.S. Housing Act and implementing HUD regulations gave low-income tenants specific and definable rights to a reasonable utility al lowance that were enforceable under § 1983.^[23]

Wilder v. Virginia Hospital Ass’n^[24] involved the Boren Amendment to the Medicaid Act,^[25] which required a participating state to reimburse health care providers at “reasonable rates.”^[26] The Court concluded that health care providers were clearly intended beneficiaries of the Boren Amendment;^[27] that the amendment was cast in mandatory terms, imposing a “binding obligation” on participating states to adopt reasonable reimbursement rates for health care providers; and that this obligation was enforceable under § 1983.^[28] The Court rejected the defendant’s argument that the obligation imposed by the Boren Amendment was “too vague and amorphous” to be capable of judicial enforcement.^[29] The Court relied upon the facts that “the statute and the Secretary’s regulations set out factors which a State must consider in adopting its rates,” including “the objective benchmark of an ‘efficiently and economically operated facility’ providing care in compliance with federal and state standards while at the same time ensuring ‘reasonable access’ to eligible participants.”^[30]

The decisions in Golden State, Wright, and Wilder represent a broad approach to enforcement of federal statutes under § 1983. The Supreme Court’s more recent decisions, however, have generally been more restrictive. In Suter v. Artist M.,^[31] the Court held that a provision of the Adoption Assistance and Child Welfare Act of 1980 was not enforceable under § 1983.^[32] The Act provides for federal reimbursement of certain expenses incurred by a state in administering foster care and adoption services, conditioned upon the state’s submission of a plan for approval by the Secretary of Health and Human Services.^[33] To be approved, the plan must satisfy certain requirements, including one that mandates that the state make “reasonable efforts” to keep children in their homes.^[34]

The issue in Suter was whether “the Adoption Act, unambiguously confer[ed] upon the child beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child from being removed from his home, and once removed to reunify the child with his family.”^[35] The Court held that it did not. It concluded that the only unambiguous requirement imposed by 42 U.S.C. § 671(a) was that the state submit a plan to be approved by the Secretary.^[36] The Court emphasized that in Wilder it had “relied in part on the fact that the statute and regulations set forth in some detail the factors to be considered in determining the methods for calculating rates,”^[37] whereas the Child Welfare Act con tained “[n]o further statutory guidance . . . as to how ‘reasonable efforts’ are to be measured.”^[38]

In Blessing v. Freestone,^[39] a unanimous Supreme Court rejected an attempt by custodial parents to enforce, through a § 1983 action, a general, undifferentiated right to “substantial compliance” by state officials with a federally funded child-support enforcement program that operates under Title IV-D of the Social Security Act.^[40] While the Court did not foreclose the possibility that certain specific provisions of Title IV-D might give rise to private, enforceable rights, it faulted the court of appeals for taking a “blanket approach,” and for painting “with too broad a brush” in determining whether Title IV-D creates enforceable rights.^[41] The Court remanded the case, and instructed the plaintiffs to articulate with particularity the rights they were seeking to enforce. Blessing forces plaintiffs to break down their claims into “manageable analytic bites” so that the court can “ascertain whether each separate claim satisfies the various criteria [the Supreme Court has] set forth for determining whether a federal statute creates rights.”^[42]

In Gonzaga University v. Doe,^[43] the Supreme Court held unenforceable under § 1983 a provision of the Family Educational Rights and Privacy Act (FERPA) directing that federal funds shall not be made available to an educational institution that “has a policy of permitting the release of educational records . . . of students without the written consent of their parents.”^[44] The Court acknowledged that its decisions governing enforcement of federal statutes under § 1983 contained inconsistent language and created “confusion” in the lower courts.^[45] It found that the FERPA provision was not enforceable under § 1983 because it failed to create “in clear and unambiguous terms” a federal right in the plaintiffs.^[46] Rather FERPA’s aggregate approach is directed at the U.S. Secretary of Education to deny federal funds to educational institutions that disclose students’ records.^[47]

Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy[edit | edit source]

If the plaintiff demonstrates that a federal statute creates an enforceable right, there is “a rebuttable presumption that the right is enforceable under § 1983.”^[48] The defendant has the burden of rebutting the presumption by showing that Congress intended to preclude enforcement under § 1983.^[49] Congress may preclude enforcement under § 1983 either expressly or im pliedly by creating a remedial scheme that is so comprehensive as to demonstrate a congressional intent to preclude enforcement under § 1983.^[50]

In Middlesex County Sewerage Authority v. National Sea Clammers Ass’n,^[51] an association claimed that the County Sewerage Authority discharged and dumped pollutants, violating the Federal Water Pollution Control Act^[52] and the Marine Protection, Research, and Sanctuaries Act of 1972.^[53] In addition, the County Sewerage Authority allegedly violated the terms of its permits.^[54] Although the issue before the Court was “whether [the Association] may raise either of these claims in a private suit for injunctive and monetary relief, where such a suit is not expressly authorized by either of these Acts,”^[55] the Court addressed, sua sponte, the enforceability of these Acts pursuant to § 1983. Noting that both statutes contained “unusually elaborate enforcement provisions,”^[56] the Court held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”^[57]

Similarly, in Smith v. Robinson,^[58] the Supreme Court concluded that the “carefully tailored administrative and judicial mechanism”^[59] embodied in the Education of the Handicapped Act (EHA)^[60] reflected Congressional intent that the EHA be “the exclusive avenue through which a plaintiff may assert [an equal protection claim to a publicly financed special education].”^[61] The dissent disagreed:

The natural resolution of the conflict between the EHA, on the one hand, and . . . [section] 1983, on the other, is to require a plaintiff with a claim covered by the EHA to pursue relief through the administrative channels established by that Act before seeking redress in the courts under . . . [section] 1983.^[62]

The dissent’s position became the law when, in response to Smith, Congress amended the EHA to provide explicitly that parallel constitutional claims were not preempted by the EHA and could be raised in conjunction with claims based on it.^[63]

In City of Rancho Palos Verdes v. Abrams,^[64] the Supreme Court held that specific provisions of the federal Telecommunications Act (TCA) were not enforceable under § 1983 because the TCA has its own, carefully circumscribed remedy. The remedy included a short, thirty-day limitations period; the requirement that a court hear and decide a TCA claim “on an expedited basis”; and limited remedies, “perhaps” not including compen satory damages and not authorizing awards of attorneys’ fees and costs.^[65] The Court found that this highly specific remedy indicated a congressional intent to foreclose rather than supplement the § 1983 remedy for a TCA violation.

Current Supreme Court Approach[edit | edit source]

The foregoing analysis shows a clear trend in Supreme Court decisions of substantially tightening the standards for enforcing federal statutes under § 1983.^[66] In the author’s view, Gonzaga University v. Doe^[67] is the most significant of these decisions. The Court in Gonzaga instructed the lower courts that to find that Congress intended to create an enforceable federal statutory right, Congress “must do so in clear and unambiguous terms— no less and no more than what is required for Congress to create new rights under an implied private right of action.”^[68] The Court also strongly indicated that federal statutes enacted under the Spending Clause are unlikely to create private enforceable rights.^[69] The Court stated that since its decision in Pennhurst State School & Hospital v. Halderman,^[70] only twice has it found Spending Clause legislation to give rise to enforceable rights under § 1983.^[71] Nevertheless, although Spending Clause legislation has important federalism implications, “it does not follow that Spending Clause legislation can never create judicially enforceable individual rights.”^[72]

Enforcement of Federal Regulations Under § 1983[edit | edit source]

There is some uncertainty as to when a federal regulation is enforceable under § 1983.^[73] Most Circuit decisions on the issue hold that “a federal regulation alone may not create a right enforceable through section 1983 not already found in the enforcing statute.”^[74] Under this view, “regulations give rise to a right of action [under § 1983] only insofar as they construe a personal right that a statute creates.”^[75] This position finds support in Alexander v. Sandoval,^[76] where the Supreme Court stated that “language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”^[77] Although the Supreme Court found a federal regulation enforceable under § 1983 in Wright v. City of Roanoke Redevelopment & Housing Authority,^[78] the regulation was promulgated pursuant to a federal statute that itself created rights enforceable under § 1983.

References[edit | edit source]