Appeals from the Superior Court of the District of Columbia; (Hon. Harriett R. Taylor, Trial Judge)
Rehearing Granted for Purposes of Amendment September 28, 1994.
Before Ferren*, Acting Chief Judge, Schwelb, Associate Judge, and Pryor, Senior Judge. Opinion for the court by Acting Chief Judge Ferren. Opinion Concurring in the result by Associate Judge Schwelb.
The opinion of the court was delivered by: Ferren
FERREN, Acting Chief Judge: In August 1989, Parents United for the D.C. Public Schools *fn1 brought suit to enforce the District of Columbia Public School Nurse Assignment Act of 1987, D.C. Code § 31-2421 (1988), requesting both declaratory and injunctive relief. *fn2 The Nurse Assignment Act requires the District to assign a registered nurse to each elementary and secondary school for a specified number of hours per week and, further, to assign either a registered nurse or a certified athletic trainer to attend every school-sponsored athletic event. Parents United alleged that (1) the District had violated the Nurse Assignment Act, which Parents United had an implied private right of action to enforce, and that (2) the District's failure to implement that Act violated not only the Act itself but also the due process clause of the Constitution, permitting recovery under 42 U.S.C. § 1983 (1982). *fn3
The trial court granted summary judgment for Parents United on both the statutory and the constitutional *fn4 claims, granted permanent injunctive relief ordering compliance with both requirements of the Act, and awarded Parents United attorney's fees pursuant to 42 U.S.C. § 1988 (1982). *fn5 We agree that Parents United has an implied private right of action to enforce the Nurse Assignment Act and that the District violated that Act. We therefore affirm summary judgment under the Act and the trial court's permanent injunction. Because, however, this private right of action -- providing a complete remedy in the District's courts -- gives Parents United all the process that is due, we must conclude that Parents United has not been deprived of a property right without due process of law and, as a result, cannot recover under 42 U.S.C. § 1983. We therefore must reverse the trial court order awarding attorney's fees under 42 U.S.C. § 1988. See (supra) note 5.
I. The Nurse Assignment Act of 1987
The Council of the District of Columbia enacted the Nurse Assignment Act in 1987 in an effort to remedy the severe shortage of nurses in the District's public schools, as well as the lack of medical personnel at school-sponsored athletic events. See COUNCIL OF THE DISTRICT OF COLUMBIA, COMM. ON HUMAN SERVS., REPORT ON BILL 7-47, THE DISTRICT OF COLUMBIA PUBLIC SCHOOL NURSE ASSIGNMENT ACT OF 1987, at 2-3 (June 11, 1987) (hereafter REPORT ON BILL 7-47). The Act provided:
(a) A registered nurse shall be assigned to each District of Columbia ("District") elementary and secondary public school a minimum of 12 hours per week during each semester and during summer school if a summer school program is operated.
(b) The minimum hours per week of registered nurse services at each school shall increase from 12 to 16 hours per week beginning 1 year after December 10, 1987. The minimum hours per week of registered nurse services at each school shall increase from 16 to 20 hours per week beginning 2 years after December 10, 1987.
D.C. Code § 31-2421 (a), (b) (1988). *fn6 The Act also explained that medical services would be provided at all school-sponsored athletic events:
(d) A registered nurse, a certified athletic trainer, or both shall be present at all athletic events sponsored by the District elementary or secondary public schools that occur in the District. These medical services shall be in addition to the minimum hours of registered nurse services required by subsection (a) or (b) of this section.
D.C. Code § 31-2421 (d) (1988). Furthermore, the Act initially provided that "sufficient funds to carry out the requirements of this section are authorized to be appropriated out of the general revenues of the District." D.C. Code § 31-2421 (e) (1988).
In 1990, the Council amended § 31-2421 (e) to stress the need for mandatory funding. It was relettered as subsection (f) and now reads: "Sufficient funds to carry out the requirements of this section shall be appropriated out of the general revenues of the District." D.C. Law 8-149 (July 25, 1990), D.C. Code § 31-2421 (f) (1993) (emphasis added); see 37 D.C. Reg. 2208-10 (1990). The Council also added provisions governing the types of medical personnel to be provided at particular athletic events. See 37 D.C. Reg. at 2208-09. *fn7 Finally, the Council added subsection (g), which transferred the responsibility for implementing the Act from the Department of Human Services to the Board of Education. See 37 D.C. Reg. at 2209, 3718; D.C. Code § 31-2421 (g) (1993).
Although the 1990 amendments of the Nurse Assignment Act re-emphasized the Council's desire to place and maintain nurses in the schools and at athletic events, the Act was never fully implemented. The trial court found that (1) "since the enactment of the Act, there have been a maximum of 54 nurses working in the public schools" and that (2) "fifty-one additional school nurses would need to be hired in order for defendants to be in compliance with the Amended Act." The District never contested this finding. Although the District's 1991 budget provided $454,700 for the hiring of fourteen certified athletic trainers needed to comply with the Act's provisions for medical coverage at school-sponsored athletic events, that budget did not provide funding for the additional school nurses necessary to comply with the school nurse provisions.
Frustrated by the "egregious and continuing violation of the Nurse Assignment Act," Parents United brought suit in the Superior Court in August 1988 seeking both declaratory and injunctive relief. *fn8 In September 1989, Parents United amended its complaint to allege that the District defendants had "denied plaintiffs their right to procedural due process under the fifth amendment of the U.S. Constitution in violation of [42 U.S.C. § ] 1983." Parents United added that the Nurse Assignment Act had created a justifiable expectation that "children would receive certain minimal levels of care from registered nurses and certified athletic trainers during the school year" and that, while acting under color of District of Columbia law "without giving plaintiffs notice or an opportunity to be heard, defendants deprived plaintiffs' children of the medical care to which they are entitled." In addition to the relief requested in the original complaint, Parents United asked for an award of reasonable attorney's fees and costs under 42 U.S.C. § 1988, see (supra) note 5, in its amended prayer for relief.
A. Preliminary Injunction
Parents United moved for a preliminary injunction in October 1989. Judge Nan (Huhn) Shuker applied the test in Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), to conclude that the Nurse Assignment Act created an implied private right of action. She issued a preliminary injunction to enforce the Act's requirement of medical coverage for school-sponsored athletic events, the lack of which she found "unequivocally" caused irreparable harm. But she did not grant injunctive relief to cure the general lack of school nurses. Neither party appealed Judge Shuker's ruling. More than two months after Judge Shuker issued the preliminary injunction, the District complied by providing the required medical services at school-sponsored athletic events.
In February 1990, Parents United moved for summary judgment. The District did not contest Parents United's contentions that the District had never complied with the Nurse Assignment Act and that the Act created an implied private right of action to enforce compliance. Instead, the District argued that declining school enrollment and requested school closings may have put the District in compliance under D.C. Code § 31-2421 (c) (1988 & 1990 Supp.), see (supra) note 6, and that the shortage of registered nurses may have created a situation where it would be impossible, in any event, for the District to comply with the Act. Judge Taylor, rejecting the District's arguments as speculative and hypothetical, concluded:
In sum, there are no genuine issues of material fact regarding defendants' compliance with the school nursing hours requirement of the Amended Act, and plaintiffs are entitled to judgment on that aspect of the Amended Complaint as a matter of law.
As for the Nurse Assignment Act provisions requiring medical services at school-sponsored athletic events, the trial court found that the District had met the requirements of the Act as of April 4, 1990:
Thus, with regard to the requirement for medical coverage of athletic events, there are no genuine issues of material fact: defendants were violating the law until the court preliminarily enjoined them to comply with it; they currently are in compliance, under the continuing pressure of that court order.
Under those circumstances, plaintiffs contend -- and defendants do not dispute -- that continued injunctive relief is appropriate and necessary to ensure defendants' continued compliance. The Court agrees.
The trial court accordingly issued a permanent injunction on August 3, 1990, ordering the District to comply with both requirements of the Act.
The trial court then addressed Parents United's constitutional claim, concluding that the Nurse Assignment Act created an entitlement that amounts to a significant property interest. More specifically, the court concluded, first, that "plaintiffs are entitled to the assignment of a registered nurse to the D.C. Public Schools for a minimum of 20 hours per week during each semester and during summer school if a summer school program is operated." The court concluded that this "entitlement cannot be withdrawn without procedural due process," and that "defendants' failure ever to comply with §§ (a) and (b) of either the Act or the Amended Act deprives plaintiffs of that entitlement, and does so without affording them any 'process' whatsoever." The court accordingly held that the District had "deliberately disregarded . . . the state's fundamental process," as articulated in Silverman v. Barry, 269 U.S. App. D.C. 327, 334, 845 F.2d 1072, 1079 (1988), cert denied, 488 U.S. 956, 102 L. Ed. 2d 383, 109 S. Ct. 394 (1988), by repeatedly disregarding the law for more than four years and by submitting a budget that would not permit compliance with the Act. The trial court concluded, as a result, that Parents United was entitled to relief under 42 U.S.C. § 1983.
Next, the trial court concluded that the statutory provisions mandating medical coverage of school-sponsored athletic events were also sufficiently specific to create significant property interests. Because, however, the District eventually had complied with the Act and had provided for future compliance in the District's budget, the court concluded that the property ...