Office Planning Group, Inc v. Baraga-Houghton-Keweenaw Child Development Board

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 8, 2005
OFFICE PLANNING GROUP, INC.,

Plaintiffs-Appellee,

v No. 125448

BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

Plaintiff is a disappointed bidder that seeks

disclosure from defendant of bid documents under 42 USC

9839(a), a provision of the federal Head Start Act1 that

requires Head Start agencies to provide for “reasonable

public access” to information. Defendant Head Start

agency contends that the act does not create a private

cause of action to enforce its provisions. We hold that

the Head Start Act does not contemplate a private cause of

action seeking disclosure of the contested bid documents

under § 9839(a). Accordingly, we reverse the judgment of

1
42 USC 9831 et seq.
the Court of Appeals and enter judgment in favor of

defendant.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Baraga-Houghton-Keweenaw Child Development

Board, Inc., is a private, nonprofit organization that is

designated as a Head Start2 agency under 42 USC 9836(a).3

Defendant operates Head Start programs in Baraga,

Houghton, and Keweenaw counties. In January 2001,

defendant solicited bids for office supplies and

furniture. Plaintiff, a private, for-profit corporation,

submitted a bid. Defendant conducted an open meeting at

which its building committee reviewed the bids and made a

recommendation to its board of directors. Defendant

2
See section III(A) of this opinion.
3
42 USC 9836(a) provides:

The Secretary [of Health and Human Services]
is authorized to designate as a Head Start agency
any local public or private nonprofit or for-
profit agency, within a community, which (1) has
the power and authority to carry out the purposes
of this subchapter [42 USC 9831 et seq.] and
perform the functions set forth in section 642
[42 USC 9837] within a community; and (2) is
determined by the Secretary (in consultation with
the chief executive officer of the State
involved, if such State expends non-Federal funds
to carry out Head Start programs) to be capable
of planning, conducting, administering, and
evaluating, either directly or by other
arrangements, a Head Start program.

2

accepted the lowest bid at the open meeting. Rodney

Liimatainen, defendant’s executive director, notified

plaintiff’s branch manager, Jack Hamm, that plaintiff’s

bid had exceeded the lowest bid by $10,000.

Hamm, suspicious that the lower bidders had offered

lesser-quality merchandise, requested copies of all the

bids submitted. Liimatainen informed Hamm that the

details of the bids were unavailable for inspection by the

public because the other bidders did not want the

information disseminated. Liimatainen acknowledged,

however, that there might be small discrepancies in

quality, manufacturer, and type of product among the bids

submitted. In an attempt to compel defendant to disclose

copies of the bids, Hamm then submitted written requests

to defendant under the Michigan Freedom of Information Act

(FOIA).4 Defendant refused the requests on the basis that

it was a private corporation that was not subject to the

FOIA. Plaintiff also requested copies of the submitted

bids from the Department of Health and Human Services

(HHS), the federal agency responsible for administering

the Head Start Act.

4
MCL 15.231 et seq.

3

 In April 2001, plaintiff filed an action under the

FOIA5 demanding a complete copy of each bid. Plaintiff

later filed an amended complaint alleging that it was

additionally entitled to disclosure of the bid information

under unspecified “federal legislation which requires

disclosure of information by parties supplying service

under the so-called Head Start Program.” In subsequent

motion papers, plaintiff indicated that the federal

legislation on which it relied was 42 USC 9839(a), which

provides, in relevant part:

Each [Head Start] agency shall also provide
for reasonable public access to information,
including public hearings at the request of
appropriate community groups and reasonable
public access to books and records of the agency
or other agencies engaged in program activities
or operations involving the use of authority or
funds for which it is responsible.

After the commencement of the litigation, various HHS

officials issued memoranda indicating that defendant was

not required under the FOIA or the Head Start Act to

provide plaintiff with access to the bid information. In

a letter to defendant, a program officer in the Chicago

regional office of the HHS advised defendant that Head

5
Although the trial court treated plaintiff’s
complaint as if it contained a claim under the federal
Freedom of Information Act, 5 USC 551 et seq., the parties
agree that plaintiff’s claim was based solely on the
Michigan FOIA.

4

Start grantees are not subject to the FOIA provisions.

The program officer further noted that, under § 9839(a)

and its corresponding HHS regulation, 45 CFR 1301.30,6

defendant was not required to disclose specific

information regarding the selection of a supplier; rather,

it was required only to disclose general information such

as copies of its written procurement procedures.

Similarly, in a letter to plaintiff’s counsel, the

director of the HHS Office of Public Affairs, FOI/Privacy

Acts Division, stated that the FOIA did not apply to

defendant; however, the director noted that defendant had

provided plaintiff with a copy of the policy it followed

in conducting its procurement activities and with

background documents addressing its source of funding.

The director also wrote a letter advising defense

counsel that defendant was not subject to the requirements

of the federal Freedom of Information Act.7 The director

6
45 CFR 1301.30 provides:

Head Start agencies and delegate agencies
shall conduct the Head Start program in an
effective and efficient manner, free of political
bias or family favoritism. Each agency shall
also provide reasonable public access to
information and to the agency's records
pertaining to the Head Start program. [Emphasis
supplied.]
7
5 USC 551 et seq.

5

further advised counsel that defendant was bound by any

provisions incorporated into the grant language regarding

its obligations to make information concerning its

activities available to the public, but that defendant had

already complied with those requirements.

Finally, in a letter written to Congressman Bart

Stupak, who had apparently come to plaintiff’s aid in

seeking the bid documents, the director of the HHS Office

of Family and Child Development stated that defendant had

reasonably complied with the requirements of § 9839 and 45

CFR 1301.30 by providing plaintiff with a copy of its

procurement procedures, and that defendant was under no

further obligation to provide documents with specific

commercial information it received through the competitive

bid process.

Citing these HHS memoranda, defendant moved for

summary disposition, arguing that it was not subject to

the Michigan FOIA or the federal FOIA and that defendant

had exceeded any obligation it had to supply plaintiff

with information under 42 USC 9839(a).

The trial court granted defendant’s motion for

summary disposition to the extent that plaintiff sought

6

relief under the Michigan FOIA and the federal FOIA.8 The

court, however, sua sponte granted summary disposition in

favor of plaintiff under MCR 2.116(I)(2) on the ground

that the requested information was subject to disclosure

under § 9839(a). The court, observing that § 9839(a)

required that a Head Start agency grant “reasonable public

access” to its books and records, opined that

[a] demand that information be provided outside
of working hours would not be reasonable. A
demand that an agency exhaustively search for
something that the requesting party cannot
properly identify would not be reasonable. As
recognized by the Michigan Freedom of Information
Act, it would likely not be reasonable to expect
an agency to create a record, such as a
compilation or summary, when no such record
exists. And it may well not be reasonable to
demand that an employee’s personnel file or
disciplinary record be disclosed.

In the present situation, a denial by the
Plaintiff of a written request to review
specified, existing and readily accessible
written bids is certainly not compliant with a
requirement of providing reasonable public
access. That would be true regardless of who
made the request, but the case is even more
compelling when the requesting party has a
genuine, identifiable reason for the information
sought, as did the Plaintiff.

In summary, Defendant’s denial of
Plaintiff’s request to review and obtain copies
of the bids in question was in violation of the
Federal requirement that Plaintiff provide for
reasonable public access to information,
including reasonable public access to books and

8
See note 5. Plaintiff’s FOIA claims are not at
issue in this appeal.

7

 records of the agency, involving the use of funds
for which the Plaintiff is responsible.

The Court of Appeals affirmed.9 Noting that the state

courts shared concurrent jurisdiction to decide a case

involving the Head Start Act because the act did not

provide for exclusive federal jurisdiction,10 the panel

rejected the reasoning of federal case law holding that

the Head Start Act does not provide a private cause of

action.11 The panel, citing Long v Chelsea Community Hosp,

219 Mich App 578; 557 NW2d 157 (1996), and Forster v

Delton School Dist, 176 Mich App 582, 585; 440 NW2d 421

(1989), held that a private cause of action could be

inferred under § 9839(a) because the statute did not

provide adequate means to enforce its provisions:

The statute in question, 42 USC 9839(a),
requires Head Start agencies to provide
reasonable public access to their books and
records, but it does not provide any means of
enforcing this specific provision. Although the
Head Start Act requires agencies to open their
books and records to the department secretary or
the United States Comptroller General for audit

9
Office Planning Group, Inc v Baraga-Houghton-
Keweenaw Child Dev Bd, 259 Mich App 279; 674 NW2d 686
(2003).
10
Gulf Offshore Co v Mobil Oil Corp, 453 US 473, 478;
101 S Ct 2870; 69 L Ed 2d 784 (1981).
11
See Johnson v Quin Rivers Agency for Community
Action, Inc, 128 F Supp 2d 332, 336 (ED Va, 2001); Hodder
v Schoharie Co Child Dev Council, Inc, 1995 US Dist LEXIS
19049 (ND NY, 1995).

8

 and examination, 42 USC 9842, Congress
specifically provided for public access to the
books and records, not simply to the audits
prepared by these other entities. Therefore, we
conclude an implied private cause of action
exists.[12]

The panel concluded that the trial court did not err

in granting summary disposition for plaintiff because

defendant had not complied with the “reasonable public

access” requirement of § 9839(a). The panel, noting that

defendant had failed to suggest why it would be

unreasonable to disclose the requested information, held

that because the information was readily available and

could be produced on short notice, it was covered by the

statutory directive to provide “reasonable public

access.”13 The panel rejected defendant’s contention that

the bidders did not have notice that the bids would be

disclosed, stating that the statute itself provided that

notice; the panel also rejected defendant’s argument that

public policy dictated against interpreting the statute to

require disclosure of the bids.14 Finally, the panel held

that it was not required to defer to the interpretation of

§ 9839(a) set forth in the letters written by HHS

12
259 Mich App at 289-290 (emphasis deleted).

13
259 Mich App at 290-292.

14
259 Mich App at 292-295.

9

officials, opining that only a ruling from the “upper

echelon” of the HHS would be entitled to deference and

that, in any event, the officials’ interpretation was

clearly wrong.15

We granted defendant’s application for leave to

appeal.16 Because we conclude that § 9839(a) does not

provide for a private cause of action, we reverse the

judgment of the Court of Appeals and enter judgment in

favor of defendant.

II. STANDARD OF REVIEW

This case presents issues of statutory construction

and other questions of law. Such questions are subject to

review de novo by this Court.17 Similarly, we review a

trial court's grant of summary disposition de novo.18

15
259 Mich App at 297.
16
470 Mich 888 (2004).
17
Preserve the Dunes, Inc v Dep't of Environmental
Quality, 471 Mich 508, 513; 684 NW2d 847 (2004); Mack v
Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002); Grand
Traverse Co v Michigan, 450 Mich 457, 463-464; 538 NW2d 1
(1995).
18
Mack, supra at 193.

10

 III. ANALYSIS

A. INTRODUCTION

The Head Start Act was enacted for the purpose of

“promot[ing] school readiness by enhancing the social and

cognitive development of low-income children through the

provision, to low-income children and their families, of

health, educational, nutritional, social, and other

services that are determined, based on family needs

assessments, to be necessary.”19 The secretary of the HHS

is authorized under 42 USC 9836(a) to designate as a Head

Start agency “any local public or private nonprofit or

for-profit agency . . . .” The act further authorizes the

secretary to provide financial assistance or grants to

Head Start agencies for the operation of Head Start

programs.20

Under 42 USC 9836a, the secretary is directed to

establish by regulation standards applicable to Head Start

agencies, including performance standards, administrative

and financial management standards, and standards relating

to the conditions and location of agency facilities. The

secretary has promulgated regulations implementing these

19
42 USC 9831; see also Action for Boston Community
Dev, Inc v Shalala, 136 F3d 29, 30 (CA 1, 1998).
20
42 USC 9833 to 9835; Community Action of Laramie
Co, Inc v Bowen, 866 F2d 347, 348 (CA 10, 1989).

11

statutory directives.21 The secretary is directed under 42

USC 9836a(c) and (d) to monitor Head Start agencies for

compliance with statutory and regulatory standards and to

take corrective action if necessary. If an agency does

not comply with such standards, the secretary may initiate

proceedings to terminate the designation of the agency

unless the agency corrects the deficiency.22

At issue in this case is § 9839(a) of the act, which

provides as follows:

Each Head Start agency shall observe
standards of organization, management, and
administration which will assure, so far as
reasonably possible, that all program activities
are conducted in a manner consistent with the
purposes of this subchapter [42 USC 9831 et
seq.] and the objective of providing assistance
effectively, efficiently, and free of any taint
of partisan political bias or personal or family
favoritism. Each such agency shall establish or
adopt rules to carry out this section, which
shall include rules to assure full staff
accountability in matters governed by law,
regulations, or agency policy. Each agency shall
also provide for reasonable public access to
information, including public hearings at the
request of appropriate community groups and
reasonable public access to books and records of
the agency or other agencies engaged in program
activities or operations involving the use of
authority or funds for which it is responsible.
Each such agency shall adopt for itself and other
agencies using funds or exercising authority for
which it is responsible, rules designed to (1)
establish specific standards governing salaries,

21
See 45 CFR 1304.1.
22
42 USC 9836a(d)(1)(C).

12

 salary increases, travel and per diem allowances,
and other employee benefits; (2) assure that only
persons capable of discharging their duties with
competence and integrity are employed and that
employees are promoted or advanced under
impartial procedures calculated to improve agency
performance and effectiveness; (3) guard against
personal or financial conflicts of interest; and
(4) define employee duties in an appropriate
manner which will in any case preclude employees
from participating, in connection with the
performance of their duties, in any form of
picketing, protest, or other direct action which
is in violation of law. [Emphasis supplied.]

Similarly, Head Start regulation 45 CFR 1301.30 provides

that “[e]ach agency shall also provide reasonable public

access to information and to the agency's records

pertaining to the Head Start program.”

The lower courts concluded that defendant was

required under the “reasonable public access” provision of

§ 9839(a) to disclose copies of all bids it received in

connection with its January 2001 solicitation of bids for

office supplies and furniture. In considering the

propriety of the lower courts’ rulings, we must first

determine whether the trial court properly exercised

jurisdiction over plaintiff’s claim under § 9839(a).

Next, we must examine whether § 9839(a) allows for

plaintiff’s private cause of action to enforce the

disclosure provision. Although we conclude that the state

courts have jurisdiction over this action, we hold that

§ 9839(a) does not provide for a private cause of action.

13

 B. CONCURRENT JURISDICTION

Defendant first argues that the state courts lack

jurisdiction over plaintiff’s claim under the federal Head

Start Act.23 We disagree and hold that the state courts

23
We note initially that defendant, in support of its
assertion that subject-matter jurisdiction is lacking,
presents a hodgepodge, “shotgun approach” argument that
conflates the concepts of exhaustion of remedies, primary
jurisdiction, “Chevron doctrine” deference, and existence
of a private cause of action under the federal statute at
issue, making it rather difficult to discern what
precisely it is that defendant is arguing. These concepts
are not, in fact, jurisdictional in nature. See, e.g.,
Northwest Airlines, Inc v Kent Co, Michigan, 510 US 355,
365; 114 S Ct 855; 127 L Ed 2d 183 (1994) (“The question
whether a federal statute creates a claim for relief is
not jurisdictional.”).

In light of our determination that the Head Start
Act, in the first instance, does not provide for a private
cause of action to enforce the public access requirement
of § 9839(a), it is unnecessary to address defendant’s
assertion that primary jurisdiction over this cause of
action lies with the HHS, see Travelers Ins Co v Detroit
Edison Co, 465 Mich 185; 631 NW2d 733 (2001), and its
related argument that plaintiff failed to exhaust
administrative remedies before filing this state-court
action. However, we note that this case presents a
straightforward issue of statutory construction involving
the meaning of the simple phrase “reasonable public
access.” The interpretation of this particular statutory
language does not require knowledge of sophisticated or
technical terms or the exercise of expert judgment or
discretion. Because the “reasonable public access”
provision presents a matter that the judiciary is
particularly competent to address, rather than a matter
within the “specialized and expert knowledge” of the HHS,
see id. at 198, primary jurisdiction does not lie with
that agency. Moreover, there are no “prescribed
administrative remedies” that plaintiff has failed to
exhaust before seeking relief under § 9839(a) from the
Footnotes continued on following page.
14
courts. McCarthy v Madigan, 503 US 140, 144-145; 112 S Ct
1081; 117 L Ed 2d 291 (1992).

Defendant’s somewhat cryptic assertion that the state
courts are required to give deference to the HHS’s
interpretation of § 9839(a) warrants additional comment.
Citing the “Chevron doctrine,” see Chevron USA Inc v
Natural Resources Defense Council, Inc, 467 US 837; 104 S
Ct 2778; 81 L Ed 2d 694 (1984), defendant argues that the
state courts are required to give deference to the
determinations of HHS officials regarding the disclosure
required under the act and that the state courts therefore
lack jurisdiction over this action. Again, defendant is
conflating two discrete doctrines. The concept of Chevron
deference is not jurisdictional; rather, it is a doctrine
that is in the nature of a standard of review, applied by
the judiciary in reviewing an agency’s reasonable
construction of an ambiguous statute, which recognizes
that any necessary policy determinations in interpreting a
federal statute are more properly left to the agency
responsible for administering the particular statute. See
Yellow Transportation, Inc v Michigan, 537 US 36, 47-48;
123 S Ct 371; 154 L Ed 2d 377 (2002); United States v Mead
Corp, 533 US 218, 227-228; 121 S Ct 2164; 150 L Ed 2d 292
(2001), quoting Chevron, supra at 844 (“‘considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to
administer’”).

Again, because we have determined that there is no
private cause of action to enforce the disclosure
requirement of the Head Start Act, we need not address
whether the state courts are required, under Chevron and
Mead, supra, to accord deference to the letters authored
by these HHS officials. However, we note in passing that
these letters presumably lack the “force of law” that is
generally required for application of Chevron-type
deference. See, e.g., Shalala v Guernsey Mem Hosp, 514 US
87, 99; 115 S Ct 1232; 131 L Ed 2d 106 (1995) (noting that
administrative interpretive rules, which do not require
notice and comment, “do not have the force and effect of
law and are not accorded that weight in the adjudicatory
process”); Northwest Airlines, supra at 366-367 (noting
that a “reasoned decision” of the Secretary of
Transportation would be entitled to Chevron-type deference
in a dispute over the meaning of a provision of the Anti-
Head Tax Act, 49 USC 1513); Human Development Corp of
Footnotes continued on following page.
15

have concurrent jurisdiction with the federal courts to

entertain plaintiff’s action seeking relief under

§ 9839(a).

It has long been established that, so long as

Congress has not provided for exclusive federal-court

jurisdiction, state courts may exercise subject-matter

jurisdiction over federal-law claims “‘whenever, by their

own constitution, they are competent to take it.’”24 State

courts possess sovereignty concurrent with that of the

federal government, “subject only to limitations imposed

by the Supremacy Clause.”25 Thus, state courts are

presumptively competent to assume jurisdiction over a

Metropolitan St Louis v United States Dep’t of Health &
Human Services, 312 F3d 373, 379 (CA, 8, 2002) (applying
Chevron deference to a final decision of the HHS’s
Departmental Appeals Board interpreting an HHS
regulation); see also Mead, supra at 236, n 17;
Christensen v Harris Co, 529 US 576, 586-587; 120 S Ct
1655; 146 L Ed 2d 621 (2000).
24
Tafflin v Levitt, 493 US 455, 459; 110 S Ct 792;
107 L Ed 2d 887 (1990), quoting Claflin v Houseman, 93 US
130, 136; 23 L Ed 833 (1876).
25
Tafflin, supra at 458. See US Const, art VI, cl 2
(“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”).

16

cause of action arising under federal law.26 If concurrent

jurisdiction otherwise exists, subject-matter jurisdiction

over a federal-law claim is governed by state law.27

In determining whether our state courts enjoy

concurrent jurisdiction over a claim brought under federal

law, it is necessary to determine whether Congress

intended to limit jurisdiction to the federal courts.

"In considering the propriety of state-court
jurisdiction over any particular federal claim,
the Court begins with the presumption that state
courts enjoy concurrent jurisdiction. Congress,
however, may confine jurisdiction to the federal
courts either explicitly or implicitly. Thus,
the presumption of concurrent jurisdiction can be
rebutted by an explicit statutory directive, by
unmistakable implication from legislative
history, or by a clear incompatibility between
state-court jurisdiction and federal
interests."[28]

26
Tafflin, supra at 459; Gulf Offshore Co, supra at
478; Charles Dowd Box Co, Inc v Courtney, 368 US 502, 507-
508; 82 S Ct 519; 7 L Ed 2d 483 (1962).
27
Gulf Offshore Co, supra at 478.
28
Tafflin, supra at 459-460, quoting Gulf Offshore
Co, supra at 478 (citations omitted); see also Peden v
Detroit, 470 Mich 195, 201 n 4; 680 NW2d 857 (2004).
Although we, of course, must apply these federal-law
principles in determining whether concurrent jurisdiction
exists under the federal statute, we would be remiss if we
failed to note that the use of legislative history in the
search for legislative intent “‘is a perilous venture . .
. [that is] doubly fraught with danger in Michigan which,
unlike Congress, has failed to create an authoritative
legislative record.’” Frank W Lynch & Co v Flex
Technologies, Inc, 463 Mich 578, 587 n 7 (2001), quoting
People v Tolbert, 216 Mich App 353, 360 n 5; 549 NW2d 61
Footnotes continued on following page.
17
 Defendant does not present a coherent argument that

the courts of this state lack jurisdiction over the

parties’ dispute concerning the disclosure of documents

under § 9839(a). Rather, defendant simply contends that

the “expansive regulatory scheme” of the Head Start Act

“evidences Congressional intent that the HHS exercise its

sole discretion over its administration of local Head-

Start agencies through its regulations.” Defendant has

conflated the vesting of discretion in federal agencies

with the vesting of jurisdiction in the federal courts:

That a particular agency has discretion to administer a

federal statute and to implement regulations for the

enforcement of the statute does not address whether state

courts have concurrent jurisdiction over a dispute arising

under that statute. Instead, our inquiry is limited to

whether Congress intended to limit to federal courts

exclusive jurisdiction over such a dispute and, if not,

whether state law allows our courts to exercise subject-

matter jurisdiction over the action.

Defendant concedes that nothing in the Head Start Act

explicitly confines jurisdiction to the federal courts,

and defendant does not point to any statutory indication

(1996).

18

that Congress intended that jurisdiction over a dispute

under the Head Start Act should lie solely in the federal

courts. We have been unable to locate anything in the

legislative history of the act demonstrating an intent to

grant exclusive federal-court jurisdiction, and defendant

has certainly failed to bring any such information to our

attention. Moreover, there is no “clear incompatibility”

between state-court jurisdiction and federal interests

with respect to application of the Head Start Act,

particularly with respect to a straightforward question of

statutory construction such as the one presented in this

case. Indeed, as noted in Gulf Offshore Co v Mobil Oil

Corp, 453 US 473, 478 n 4; 101 S Ct 2870; 69 L Ed 2d 784

(1981), “[p]ermitting state courts to entertain federal

causes of action facilitates the enforcement of federal

rights.”

Congress has done nothing in the exercise of its

powers under the Supremacy Clause to “affirmatively divest

state courts of their presumptively concurrent

jurisdiction” over claims brought under the Head Start

Act.29 Additionally, it is clear that the courts of this

state have subject-matter jurisdiction over the dispute at

29
Yellow Freight Sys, Inc v Donnelly, 494 US 820,
823; 110 S Ct 1566; 108 L Ed 2d 834 (1990).

19

issue, because our Constitution provides that the circuit

courts of this state have original jurisdiction “in all

matters not prohibited by law . . . .”30 Accordingly, we

hold that the courts of this state have properly exercised

concurrent jurisdiction over plaintiff’s § 9839(a) claim.

C. PRIVATE CAUSE OF ACTION TO ENFORCE § 9839(a)

Defendant next contends that plaintiff’s claim fails

because § 9839(a) does not provide for a private cause of

action to enforce the public access requirement. We

agree.

1. WHETHER A CAUSE OF ACTION EXISTS IS SOLELY
A MATTER OF STATUTORY CONSTRUCTION

“‘[T]he fact that a federal statute has been violated

and some person harmed does not automatically give rise to

a private cause of action in favor of that person.’”31

Rather, “[l]ike substantive federal law itself, private

rights of action to enforce federal law must be created by

Congress.”32 Thus, in determining whether plaintiff may

bring a private cause of action to enforce the public

30
Const 1963, art 6, § 13.
31
Touche Ross & Co v Redington, 442 US 560, 568; 99 S
Ct 2479; 61 L Ed 2d 82 (1979), quoting Cannon v Univ of
Chicago, 441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560
(1979).
32
Alexander v Sandoval, 532 US 275, 286; 121 S Ct
1511; 149 L Ed 2d 517 (2001); see also Touche Ross & Co,
supra at 578.

20

access requirement of § 9839(a), we must determine whether

Congress intended to create such a cause of action.33

Because the Head Start Act does not evidence an intent to

create a private remedy for an alleged violation of §

9839(a), plaintiff’s action must be dismissed.

Although the United States Supreme Court in the last

century embraced a short-lived willingness to create

remedies to enforce private rights,34 the Court “abandoned”

that approach to statutory remedies in Cort v Ash35 and

“[has] not returned to it since.”36 In Cort, the Court set

33
Alexander, supra at 286-287.
34
See, e.g., Bivens v Six Unknown Named Agents of Fed
Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d
619 (1971) (inferring a private cause of action for
damages to enforce the Fourth Amendment guarantee against
unreasonable searches and seizures); J I Case Co v Borak,
377 US 426, 433; 84 S Ct 1555; 12 L Ed 2d 423 (1964)
(holding that “it is the duty of the courts to be alert to
provide such remedies as are necessary to make effective
the congressional purpose” of a federal statute). See
also, generally, Correctional Services Corp v Malesko, 534
US 61, 75; 122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia,
J., concurring) (noting that “Bivens is a relic of the
heady days in which this Court assumed common-law powers
to create causes of action—decreeing them to be ‘implied’
by the mere existence of a statutory or constitutional
prohibition”); Note, Section 1983 and implied rights of
action: Rights, remedies, and realism, 90 Mich L R 1062,
1071-1083 (1992) (exploring the evolution of the United
States Supreme Court’s implied right of action
jurisprudence and its subsequent retreat).
35
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
36
Alexander, supra at 287.

21

forth a test for determining whether a private remedy is

implicit in a statute that does not expressly provide such

a remedy:

First, is the plaintiff "one of the class
for whose especial benefit the statute was
enacted," . . . that is, does the statute create
a federal right in favor of the plaintiff?
Second, is there any indication of legislative
intent, explicit or implicit, either to create
such a remedy or to deny one? . . . Third, is it
consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the
plaintiff? . . . And finally, is the cause of
action one traditionally relegated to state law,
in an area basically the concern of the States,
so that it would be inappropriate to infer a
cause of action based solely on federal law?[37]

Post-Cort, the Court has become increasingly

reluctant to imply a private cause of action, preferring

to focus exclusively on the second Cort element, which

requires indicia of congressional intent to create a cause

of action. For example, as early as Cannon v Univ of

Chicago,38 although the Court applied each of the Cort

factors, it characterized the determination whether a

private remedy existed to enforce a statutory right as a

matter of “statutory construction.”39 In Touche Ross &

37
Cort, supra at 78 (emphasis deleted).
38
441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560
(1979).
39
See also Merrell Dow Pharmaceuticals Inc v
Thompson, 478 US 804, 812; 106 S Ct 3229; 92 L Ed 2d 650
Footnotes continued on following page.
22
Co,40 the Court declined to even address the remaining Cort

factors where it was clear that Congress did not intend to

create a private cause of action to enforce § 17(a) of the

Securities Exchange Act of 1934:41

It is true that in Cort v. Ash, the Court
set forth four factors that it considered
"relevant" in determining whether a private

(1986), noting that it would “flout congressional intent
to provide a private federal remedy” for an alleged
violation of the federal Food, Drug, and Cosmetic Act, 21
USC 301 et seq.:

See, e.g., Daily Income Fund, Inc. v. Fox,
464 US 523, 535-536 (1984) ("In evaluating such a
claim, our focus must be on the intent of
Congress when it enacted the statute in
question."); Middlesex County Sewerage Authority
v. National Sea Clammers Assn., 453 U.S., at 13
("The key to the inquiry is the intent of the
Legislature."); Texas Industries, Inc. v.
Radcliff Materials, Inc., 451 U.S. 630, 639
(1981) ("Our focus, as it is in any case
involving the implication of a right of action,
is on the intent of Congress."); California v.
Sierra Club, 451 U.S. at 293 ("[The] ultimate
issue is whether Congress intended to create a
private right of action."); Northwest Airlines,
Inc. v. Transport Workers, 451 U.S. 77, 91 (1981)
("The ultimate question in cases such as this is
whether Congress intended to create the private
remedy."); Transamerica Mortgage Advisors, Inc.
v. Lewis, 444 U.S. 11, 15 (1979) ("The question
whether a statute creates a cause of action,
either expressly or by implication, is basically
a matter of statutory construction."); Touche
Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)
("The question of the existence of a statutory
cause of action is, of course, one of statutory
construction."). [Merrell, supra at 812 n 9.]
40
Touche Ross & Co, supra at 575-576.
41
15 USC 78q(a).

23

 remedy is implicit in a statute not expressly
providing one. But the Court did not decide that
each of these factors is entitled to equal
weight. The central inquiry remains whether
Congress intended to create, either expressly or
by implication, a private cause of action.
Indeed, the first three factors discussed in
Cort—the language and focus of the statute, its
legislative history, and its purpose, see 422
U.S. at 78—are ones traditionally relied upon in
determining legislative intent. Here, the
statute by its terms grants no private rights to
any identifiable class and proscribes no conduct
as unlawful. And the parties as well as the
Court of Appeals agree that the legislative
history of the 1934 Act simply does not speak to
the issue of private remedies under § 17 (a). At
least in such a case as this, the inquiry ends
there: The question whether Congress, either
expressly or by implication, intended to create a
private right of action, has been definitely
answered in the negative.

Similarly, in California v Sierra Club,42 the Court,

noting that “the focus of the inquiry is on whether

Congress intended to create a remedy,” concluded that

consideration of the first two Cort factors was

dispositive. Because there was no indication that

Congress intended to create a private remedy to enforce §

10 of the Rivers and Harbors Appropriation Act of 1899,43

the Court held that it was unnecessary to inquire further

into the remaining factors, because “[t]hese factors are

42
451 US 287, 297; 101 S Ct 1775; 68 L Ed 2d 101
(1981).
43
33 USC 403.

24

only of relevance if the first two factors give indication

of congressional intent to create the remedy.”44

In Alexander, the Court appears to have abandoned the

Cort inquiry altogether in favor of a completely textual

analysis in determining whether a private remedy exists

under a particular statute. Rather than applying the Cort

factors, the Alexander Court concluded, solely on the

basis of the text of 42 USC 2000d-1, that private

individuals could not sue to enforce disparate-impact

regulations promulgated under Title VI of the Civil Rights

Act of 1964. The Court rejected the plaintiff’s argument

that dispositive weight could be accorded to context shorn

of text, holding that “legal context matters only to the

extent it clarifies text.”45 The Alexander majority

additionally rejected the dissent’s claim that the

position adopted “‘blind[ed] itself to important evidence

of congressional intent,’” noting that the methodology

44
Sierra Club, supra at 298.

This Court has also noted the paramount importance of
legislative intent in determining whether a private cause
of action can be founded on an alleged violation of a
statute. See Gardner v Wood, 429 Mich 290, 302 n 6; 414
NW2d 706 (1987) (noting that Cort marked “the beginning of
a trend in the federal courts to reserve the creation of
civil remedies from penal violations only where to do so
[was] clearly consistent with affirmative legislative
intent”).
45
Alexander, supra at 288.

25

employed in the majority opinion was well established in

earlier decisions that explained “that the interpretive

inquiry begins with the text and structure of the statute

. . . and ends once it has become clear that Congress did

not provide a cause of action.”46

2. THE HEAD START ACT DOES NOT PROVIDE FOR A PRIVATE CAUSE OF ACTION

With the aforementioned principles in mind, we

examine the text of the Head Start Act to determine

46
Id. at 288 n 7.

Our dissenting colleagues assert that we have
incorrectly characterized Touche Ross & Co and Alexander
as representing a departure from the four-factor Cort
test. Post at 3-4. Whether the United States Supreme
Court will, in the future, continue to apply the four-part
Cort test is, however, simply irrelevant where it is clear
from the text of the statute at issue that Congress did
not intend to create a private enforcement action.
Indeed, this case is directly analogous to Touche Ross &
Co and Alexander. As the dissent points out, the
provisions at issue in Touche Ross & Co and Alexander
neither conferred rights on individuals nor proscribed
conduct as unlawful. The same can certainly be said of 42
USC 9839(a). Similarly, the dissent notes that the
Alexander Court found it quite telling that the statute at
issue expressly empowered governmental agencies to enforce
regulations. The Head Start Act does precisely that, by
directing the secretary to establish regulations governing
Head Start agencies and to enforce those regulations, and,
in 42 USC 9839(a), by requiring Head Start agencies to
conduct program activities in conformity with the Head
Start Act and to establish or adopt rules to carry out
that duty.

We note, in passing, that Justice Weaver’s separate
dissent merely echoes the longer dissent of Justice Kelly.
Accordingly, we respond to both in kind.

26

whether it provides for a private cause of action to

enforce § 9839(a).

To date, two federal district courts have considered

whether causes of action existed under different

provisions of the Head Start Act. Although our Court of

Appeals cited these cases, it rejected their analyses

without explanation.

In Hodder, supra, the United States District Court

for the Northern District of New York applied the Cort

factors and concluded that the plaintiffs, former

employees of a Head Start agency, could not bring a cause

of action for wrongful discharge under the Head Start Act:

Turning to the first [Cort] factor,
plaintiffs are far-removed from the class for
whose special benefit Congress enacted the Head
Start Act. The purpose of this Act is to
authorize the appropriation of funds for Project
Head Start's "effective delivery of comprehensive
health, educational, nutritional, social and
other services to economically disadvantaged
children and their families." 42 USC § 9831(a).
Hence, the class for whose special benefit
Congress passed the Head Start Act is the class
of economically disadvantaged children and their
families who need the specified services, which
do not under any reasonable interpretation of the
Act include employment services. Indeed, a Head
Start agency would likely violate the Act if it
employed the parent of Head Start child. See 42
USC § 9839(a)(3). Plaintiffs' assertion that
"employees of Head Start agencies . . . are
members of a class which is specially addressed
are protected by the Act and regulations" is
legally unsupported and legally unsupportable.
. . . Congress plainly did not enact the Head
Start Act in order to benefit Head Start
employees.
27
 As to the second Cort factor, the Court has
found no indication that Congress intended the
Act or its interpretive regulations to create a
private right of action for employees who are
terminated from Head Start agencies in a manner
allegedly inconsistent with those rules.
Plaintiffs admit that the Act lacks any explicit
indication that Congress intended to create a
cause of action for these employees, but argue
that § 9849(b) of the Act "specifically negates
any intent to deny such a cause of action." . . .
Section 9849(b) concerns the application of the
Civil Rights Act to any sexual discrimination
that may occur in connection with Head Start
programs or activities. The last sentence states
that the section "shall not be construed as
affecting any other legal remedy that a person
may have if such person is . . . denied
employment in connection with[] any [Head Start]
program, project, or activity . . . ."

At best, this sentence reveals a
congressional unwillingness to interfere with any
of the state and federal remedies that may be
available to people who are denied jobs at Head
Start agencies; it certainly does not reveal a
congressional intent to create a private right of
action under the Head Start Act for people who
are fired from Head Start agencies. As
plaintiffs surely realize, if courts inferred
from Congress' failure to prohibit a private
cause of action the congressional intent to
create a private cause of action, courts would
read into almost every federal statute an implied
right of action. In the majority of instances,
this curious interpretive method would undermine
congressional intent rather than effectuate it.
It also runs counter to the Supreme Court's
demonstrated reluctance to infer private causes
of action from federal statutes. . . .

Plaintiffs fare no better under the third
Cort factor because implying a private right of
action from the Head Start Act would do little or
nothing to further the underlying purposes of the
legislative scheme. . . .

* * *

28

 We now come to the fourth Cort factor.
Plaintiffs cast their claim as one "based on
employee discharge in violation of federal
policies . . . ." . . . For purposes of
determining the existence of subject matter
jurisdiction, however, the Court considers the
true nature of plaintiffs' action. . . . Although
plaintiffs carefully avoid the phrase in their
complaint, the essence of their claim is breach
of an employment contract. Actions of this kind
are traditionally relegated to state law. Thus
the fourth Cort factor, along with the first
three, strongly support the conclusion that the
Head Start Act does not contain an implied
private right of action for people who are
terminated from Head Start agencies.[47]

Similarly, in Johnson, supra, the plaintiff alleged

that the defendants had mismanaged a Head Start program in

violation of federal regulations. The District Court for

the Eastern District of Virginia held that Congress did

not intend to provide a private cause of action to enforce

the federal regulations:

In this case, the applicable statutory
scheme is set forth pursuant to the Head Start
Act, 42 U.S.C. §§ 9831-9852a. Under the scheme,
the Secretary of the Department of Health and
Human Services is directed to "establish by
regulation standards applicable to Head Start
agencies, programs, and projects under this
subchapter," including "minimum levels of overall
accomplishment that a Head Start agency shall
achieve." 42 U.S.C. § 9836a(a)(1) & (2). The
Secretary is also directed under this section to
monitor the performance of every Head Start
program and to take appropriate corrective action
when a program fails to meet the performance
standards established by the regulations.

47
Hodder, supra at *11-*16 (citations omitted).

29
 Specifically, the Act requires a full review of
each grantee at least once during each three-year
period, review of new grantees after the
completion of the first year, follow up reviews
and return visits to grantees that fail to meet
the standards, and "other reviews as
appropriate." 42 U.S.C. § 9836a(c). If the
Secretary determines, on the basis of such a
review, that a grantee fails to meet the
standards described in § 9836a(a), the Secretary
shall, inter alia, institute proceedings to
terminate the Head Start grant unless the agency
corrects the deficiency. 42 U.S.C. § 9836a(d).

All but three of the regulations cited in
plaintiff's Second Amended Complaint were
promulgated pursuant to the Head Start Act. See
45 C.F.R. § 1304.1. There is no provision in the
Head Start Act, however, permitting a private
citizen to enforce its provisions. Based on the
alternative specific remedies mentioned above,
Congress' intent is clear. The remedy for
substandard performance by a Head Start program
is an enforcement action by the Secretary of the
Department of Health and Human Services, not by
private litigants. For these reasons, the Court
dismisses with prejudice plaintiff's claims
alleging violations of statutory and regulatory
provisions relating to the Head Start Act, for
failure to state a claim upon which relief can be
granted.[48]

We find Hodder and Johnson to be persuasive and

similarly conclude, on the basis of the text and structure

of the Head Start Act, that no private cause of action

exists to enforce § 9839(a).

The act, of course, does not expressly provide for a

private cause of action to enforce the disclosure

requirement of § 9839(a). Thus, the question becomes

48
Johnson, supra at 336-337.

30

whether the text of the act demonstrates an implicit

intent to provide for a private cause of action.

Again, the stated purpose of the act is to promote

school readiness by providing services to low-income

children and their families. 42 USC 9831. The act does

not contemplate any benefit to private corporations such

as plaintiff; nor does it indicate any intent that such a

private corporation may sue to enforce its provisions.

Where the intended beneficiaries are specifically

identified, we are loath to create a private means of

seeking redress under the act for nonbeneficiaries.

More important, the act contains a comprehensive

mechanism for ensuring agency compliance with its

provisions. We agree with the Johnson court that, far

from demonstrating an intent to allow for a private cause

of action, the act indicates that the sole remedy for a

violation of § 9839(a) is an enforcement proceeding by the

secretary of the HHS and the possible termination of Head

Start agency status. See 42 USC 9836a.

In light of this clear indication of congressional

intent, we are precluded from venturing beyond the bounds

of the statutory text to divine support for the creation

of a private claim to enforce § 9839(a). To do so would

be to substitute our own judgment for that of Congress and

31

thus to usurp legislative authority, something that we of

course decline to do.49

IV. CONCLUSION

Because the Head Start Act does not provide for a

private cause of action to enforce the disclosure

requirement of § 9839(a), plaintiff has failed to state a

cognizable claim. Accordingly, we reverse the judgment of

the Court of Appeals and enter judgment in favor of

defendant.

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman

49
Again, contrary to the assertions of our dissenting
colleagues, we do not miss any “important distinction”
between the statutes at issue in Touche Ross & Co and
Alexander and the statute at issue in this case, and this
case does not represent the “opposite situation” of the
situations present in those cases. Post at 6. Rather,
just as the provisions at issue in Touche Ross & Co and
Alexander, 42 USC 9839(a) “call[s] for oversight by
governmental agencies.” Post at 6. Moreover, we wholly
disagree with the dissent’s contention that § 9839(a)
“specifically confers an individual right on members of
the public to conduct inspections of books and records.”
Post at 6. Rather, § 9839(a) imposes on Head Start
agencies a disclosure requirement, and 42 USC 9836a
explicitly provides a remedy for a violation of that
requirement: corrective action to be initiated by the
secretary.

32

 S T A T E O F M I C H I G A N

SUPREME COURT

THE OFFICE PLANNING GROUP, INC.,

Plaintiff-Appellee,

v No. 125448

BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD, INC.,

Defendant-Appellant.

_______________________________

WEAVER, J. (concurring in part and dissenting in part).

I concur in the majority opinion to the extent it

holds that the state courts have concurrent jurisdiction in

this matter.

I dissent from the majority holding that 42 USC

9839(a) of the federal Head Start Act does not permit

plaintiff to seek disclosure of information relevant to the

defendant’s decision on competing bids for a contract. 42

USC 9839(a) provides, in pertinent part:

Each [Head Start] agency shall also provide
for reasonable public access to information,
including public hearings at the request of
appropriate community groups and reasonable
public access to books and records of the agency
or other agencies engaged in program activities
or operations involving the use of authority or
funds for which it is responsible.

For the reasons stated in Justice Kelly’s dissent, I

would hold that this statutory language does provide
plaintiff a right to seek “reasonable” disclosure of

records pertaining to contract bids submitted to a Head

Start agency.

I write separately to elaborate on the majority’s

misreading of the effect of Alexander v Sandoval1 on Cort v

Ash.2 Specifically, the majority is wrong to suggest that

Alexander “appears to have abandoned the Cort inquiry

altogether in favor of a completely textual analysis in

determining whether a private remedy exists under a

particular statute.” Ante at 26.

Cort identified four factors relevant to determining

whether a federal statute implied a private remedy where

the statute did not expressly provide one. Cort held:

First, is the plaintiff "one of the class for
whose especial benefit the statute was enacted,"
. . . that is, does the statute create a federal
right in favor of the plaintiff? Second, is there
any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny
one? . . . Third, is it consistent with the
underlying purposes of the legislative scheme to
imply such a remedy for the plaintiff? . . . And
finally, is the cause of action one traditionally
relegated to state law, in an area basically the
concern of the States, so that it would be

1
532 US 275; 121 S Ct 1511; 149 L Ed 2d 517 (2001).
2
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).

2

 inappropriate to infer a cause of action based
solely on federal law?[3]

Unlike Cort’s focus on whether a cause of action can

be inferred from a statute, Alexander involved a distinct

issue: whether a private cause of action could be inferred

from a regulation that forbids conduct beyond that which

was forbidden by the statute under which the regulation was

promulgated.4

Because the conduct at issue in Alexander was

prohibited by a regulation, but not by the statute pursuant

to which the regulation was adopted, Alexander held that a

cause of action alleging conduct in violation of the

3
Cort, supra at 78.
4
Alexander involved an interpretation of Title VI of
the Civil Rights Act of 1964, which provides in § 601 that
no person shall, "on the ground of race, color, or national
origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity" covered by Title VI. 42 USC 2000d.
Section 602 of the statute authorizes federal agencies to
implement the provisions in § 601 by regulations.

The Department of Justice adopted regulations pursuant
to § 602 that forbid funding recipients from adopting
policies that created a disparate impact on individuals
because of their race, color, or national origin. See 28
CFR 42.104(b)(2) (1999). Claiming that an English-only
policy caused such disparate impacts, the plaintiffs in
Alexander sued to enjoin the policy. While the Alexander
Court assumed that the regulations were valid, the Court
held that there was no private cause of action as a result
of the policy because § 601 did not prohibit disparate
impacts.

3

regulation could not be inferred from the statute. Given

this situation, it was unnecessary for Alexander to delve

deeply into the Cort factors to resolve whether a cause of

action could be inferred from the statute.

Though the majority may prefer that Cort’s factors be

abandoned and a “completely textual” approach be adopted,

neither logic nor federal precedent supports its

preference. First, it is absurd to advocate a “completely

textual approach” where the need to examine whether a cause

of action may be inferred from a statute is engendered by

the lack of an expressly stated cause of action in the text

of the statute. Further, the majority makes no attempt to

explain how its “completely textual” approach differs from

the Cort factors.

Second, while the majority correctly notes that not

every federal case involving whether a private cause of

action may be inferred from a statute has applied all the

four Cort factors, it is an overstatement to suggest that

the federal courts have “abandoned the Cort inquiry

altogether.” Even federal cases relied on by the majority

employ a Cort-based analysis. For example in Hodder v

Schoharie Co Child Dev Council, Inc, 1995 US Dist LEXIS

19049, *10 (ND NY, 1995), the court premised its analysis

as follows:

4

 The Court may infer a private right of
action from a federal statute that does not
expressly create one only if the statute's
language, structure, and legislative history
reveal Congress' intent to create a private right
of action. See Thompson v. Thompson, 484 U.S.
174, 179, 98 L. Ed. 2d 512, 108 S. Ct. 513
(1988); Touche Ross & Co. v. Redington, 442 U.S.
560, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979); Cort
v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct.
2080 (1975). Courts normally try to divine
Congressional intent by applying the four Cort
factors: 1) whether plaintiffs belong to the
class for whose special benefit Congress passed
the statute; 2) whether the indicia of
legislative intent reveal a congressional purpose
to provide a private cause of action; 3) whether
implying a private cause of action is consistent
with the underlying purposes of the legislative
scheme; and 4) whether the plaintiff's cause of
action concerns a subject that is traditionally
relegated to state law. Merrell Dow
[Pharmaceuticals Inc v Thompson], 478 U.S. [804,
810-811; 106 S Ct 3229; 92 L Ed 2d 650 (1986)];
Cort, 422 U.S. at 78.

Hodder applied each factor from Cort to the provision

of the Head Start Act at issue in that case.

That the majority misunderstands Alexander’s effect is

underscored by a recent United States Supreme Court

decision, Jackson v Birmingham Bd of Ed, ___ US ___, ___;

125 S Ct 1497, 1506; 161 L Ed 2d 361, 373 (2005), where the

Court emphasized that Alexander’s holding is simply

premised on the fact that the regulations at issue in

Alexander extended protection beyond the limits of the

statute at issue in Alexander. Describing the holding of

Alexander, Jackson stated:

5

 [In Alexander] we rejected the contention
that the private right of action to enforce
intentional violations of Title VI encompassed
suits to enforce the disparate-impact
regulations. We did so because "it is clear . . .
that the disparate-impact regulations do not
simply apply § 601 -- since they indeed forbid
conduct that § 601 permits -- and therefore
clear that the private right of action to enforce
§ 601 does not include a private right to
enforce these regulations." [Alexander] at 285,
149 L. Ed. 2d 517, 121 S. Ct. 1511. See also
Central Bank of Denver, N. A. v. First Interstate
Bank of Denver, N. A., 511 U.S. 164, 173, 128 L.
Ed. 2d 119, 114 S. Ct. 1439 (1994) (A "private
plaintiff may not bring a [suit based on a
regulation] against a defendant for acts not
prohibited by the text of [the statute]").

In this case we must necessarily look beyond the text

of the statute at issue to discern whether Congress

intended that a private person be able to seek disclosure

of documents from a Head Start agency. The text of the

statute at issue in this case, 42 USC 9839(a), does not

expressly create a private cause of action to enforce its

provision regarding public access to information. Thus, it

is necessary to look beyond the text to determine whether

Congress intended to create a private cause of action. As

recognized in California v Sierra Club, 451 US 287, 293;

101 S Ct 1775; 68 L Ed 2d 101 (1981), the four Cort factors

present the relevant inquiries to pursue in
answering the recurring question of implied
causes of action. Cases subsequent to Cort have
explained that the ultimate issue is whether
Congress intended to create a private right of
action . . . but the four factors specified in

6

 Cort remain the "criteria through which this
intent could be discerned." [Citations omitted.]

Given the task at hand and the federal precedent by

which we are bound, it is absurd to suggest that we must

employ a “completely textual” approach. Any inquiry into

whether a private cause of action may be inferred requires

consideration of the intent of Congress and Cort is our

guide. Regardless of the majority’s apparent discomfort

with Cort’s factors and inferred causes of action, we are

bound by federal law and five votes have not combined in

any one case in the United States Supreme Court to declare

Cort a dead letter.5

Elizabeth A. Weaver

5
In Thompson v Thompson, 484 US 174; 108 S Ct 513; 98
L Ed 2d 512 (1988), Justice Scalia (concurring in the
judgment) expressed his vigorous disagreement with whether
the Court should reaffirm Cort and whether it was
appropriate to infer private causes of action from federal
statutes that do not expressly provide them. Justice
Scalia’s view of Cort and inferred causes of action has not
yet garnered the requisite five votes.

7

 S T A T E O F M I C H I G A N

SUPREME COURT

THE OFFICE PLANNING GROUP, INC.,

Plaintiff-Appellee,

v No. 125448

BARAGA-HOUGHTON-KEWEENAW
CHILD DEVELOPMENT BOARD, INC.,

Defendant-Appellant.
_______________________________

KELLY, J. (dissenting).

I agree with the majority that our state courts have

jurisdiction over plaintiff’s claim under the federal Head

Start Act, 42 USC 9831 et seq. However, I disagree with

its conclusion that the act, at 42 USC 9839(a), does not

provide a private cause of action. The statutory language,

the focus of the legislation, its history, and its purpose

imply a congressional intent to allow private actions.

Therefore, I would find such a right and affirm the

decision of the Court of Appeals.

Defendant’s Various Jurisdictional Challenges

Defendant raises a variety of jurisdictional arguments

on appeal. It claims that primary jurisdiction must rest

with the Department of Health and Human Services (HHS)

because, otherwise, an “imbalance” would be created in the
administration of the Head Start Act. This Court explained

the doctrine of primary jurisdiction in Travelers Ins Co v

Detroit Edison Co, 465 Mich 185; 631 NW2d 733 (2001). It

is based on the principle of separation of powers and is

concerned with the respect appropriately shown to an

agency's decisions made in the performance of regulatory

duties. Id. at 196-197.

The primary jurisdiction doctrine underscores the

notion that administrative agencies possess specialized and

expert knowledge to address the matters they regulate. Id.

at 198. The question of primary jurisdiction arises only

with respect to matters that Congress has assigned to a

governmental agency or administrative body. Attorney

General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d

805 (1982). This case does not concern such matters.

Moreover, resolution of this case does not require

specialized knowledge. Instead, it involves a straight-

forward question of statutory interpretation. This Court

is well equipped to handle such questions because they do

not require specialized or expert knowledge outside the

scope of our general jurisdiction. Therefore, the primary

jurisdiction doctrine simply does not apply to this case.

Id.; Travelers, supra at 198-199.

2

 Defendant complains that, under the Chevron1 doctrine,

the meaning that HHS has given to “reasonable public

access” in various letters interpreting 42 USC 9839(a)

should be definitive. Chevron directs that considerable

weight be accorded an agency’s construction of a statutory

scheme. Chevron, supra at 844. But this applies only when

the decision involves reconciling conflicting policies and

requires more than ordinary knowledge of matters that the

agency regulates. Id.

This case does not demand a detailed knowledge of the

subject matter of the Head Start Act. Nor does it concern

a complicated matter of interagency interaction or policy.

It does not require detailed knowledge of the workings of

the Head Start Act. Rather, it involves an issue of

statutory construction. No special expertise being

required, the Chevron doctrine does not apply. Id.

Defendant also argues that we lack jurisdiction

because plaintiff failed to exhaust all its administrative

remedies. But the United States Supreme Court has ruled

that “where Congress has not clearly required exhaustion,

sound judicial discretion governs.” McCarthy v Madigan,

503 US 140, 144; 112 S Ct 1081; 117 L Ed 2d 291 (1992). 42

1
Chevron USA Inc v Natural Resources Defense Council,
Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).

3

USC 9839(a) contains no exhaustion requirements and is

silent regarding administrative remedies. Therefore, it is

within our sound discretion to hear this case.

Given that none of the theories that defendant relies

on to challenge this Court’s jurisdiction applies here, it

is appropriate for us to reach the merits of the case. And

it is appropriate for us to decide whether Congress

intended a private right of action in 42 USC 9839(a).

Whether a Private Cause of Action Exists
Requires a Determination of Legislative Intent

Congress can create a private right of action in two

ways. It can expressly provide for the right or it can

imply it. Cannon v Univ of Chicago, 441 US 677, 717; 99 S

Ct 1946; 60 L Ed 2d 560 (1979). Frequently, legislation

does not clearly express whether a private right was

intended. The growing volume of litigation and the

complexity of federal legislation increase the need for

careful scrutiny to ensure what Congress wanted. Merrill

Lynch, Pierce, Fenner & Smith, Inc v Curran, 456 US 353,

377; 102 S Ct 1825; 72 L Ed 2d 182 (1982).

To assist us in undertaking that scrutiny, the United

States Supreme Court articulated a four-part test thirty

years ago in Cort v Ash, 422 US 66; 95 S Ct 2080; 45 L Ed

2d 26 (1975). A court makes four inquiries: (1) whether

the plaintiff is a member of the class for whose benefit

4

the legislative body enacted the statute, (2) whether there

is any indication that the legislative body intended to

create or deny such a right of action, (3) whether

inferring the right of action is consistent with the

underlying scheme of the legislation, and (4) whether the

cause of action is one traditionally relegated to state law

so that it would be inappropriate to base the determination

solely on federal law. Id. at 78. The key to this inquiry

is determining the legislative intent in enacting the

statute. Merrill Lynch, supra at 377-378.

In Touche Ross & Co v Redington,2 the Court opined that

the first three factors of Cort should be given greater

weight than the fourth. The opinion states:

Indeed, the first three factors discussed in
Cort—the language and focus of the statute, its
legislative history, and its purpose, see 422
U.S., at 78—are ones traditionally relied upon in
determining legislative intent. [Id. at 575-
576.]

The language of the statute in question in Touche Ross3

did not explicitly create a private remedy. Also, the

legislative history gave no indication that Congress

intended one. The statute neither conferred rights on

private parties nor proscribed conduct as unlawful. Touche

2
442 US 560; 99 S Ct 2479; 61 L Ed 2d 82 (1979).
3
15 USC 78q(a).

5

Ross, supra at 569. It required that brokers keep certain

documents for government inspection and focused on

governmental rights of inspection. Id. at 569-570.

Because the statute did not imply a private right of

action, the Court found that none existed. Id. at 571.

The majority contends that, twenty-two years after

Touche Ross, the United States Supreme Court abandoned the

Cort analysis and switched to a completely textual analysis

in Alexander v Sandoval, 532 US 275; 121 S Ct 1511; 149 L

Ed 2d 517 (2001). I disagree. In Alexander, the Court

followed the same reasoning as in Touche Ross and focused

on the initial Cort factors.

As in Touche Ross, the Alexander Court stated that, to

determine legislative intent, it was important to start

with the language of the statute. Id. at 287-288. In that

case, it needed to go no further in its inquiry. Id. at

288. The reason was that, as in Touche Ross, the statute

under consideration4 indicated that Congress intended not to

create a private cause of action. Alexander, supra at 288-

289.

That statute neither conferred rights on private

parties nor proscribed conduct as unlawful. Instead, it

empowered governmental agencies to enforce regulations.

4
42 USC 2000d-1.

6

Id. at 289. The Court concluded that, by expressly

providing one method of enforcement, Congress signaled that

it intended to preclude other methods.5 Id. at 290.

Contrary to the majority’s conclusion, a full reading

of Alexander indicates that the Court did not abandon Cort.

Instead, Alexander stated that the analysis in that case

need not extend beyond the first two Cort factors because

the statute indicated that Congress did not intend a

private cause of action. The Cort factors remain a valid

and important means of discerning legislative intent. The

Alexander decision provides no basis to conclude the

contrary.

Specific Analysis of 42 USC 9839

Despite espousing a textualist approach, the majority

never deals with the actual language of 42 USC 9839(a).

Instead, it focuses on tangentially related federal

5
The majority points out that 42 USC 9839(a) contains
language like the statutory language that the Supreme Court
analyzed in Alexander. Ante at 27 n 46. But the majority
again misses the point. Unlike 42 USC 2000d-1, it contains
a directive that does not concern the mere internal
creation of rules. 42 USC 9839(a) contains language that
is absent in 42 USC 2000d-1 (the statutory language
analyzed in Alexander). 42 USC 9839(a) specifically
mentions the “public” and “appropriate community groups
. . . .” It allows the public and these groups to request
public hearings and to seek access to books and records.
42 USC 9839(a).

7

district court cases and the overall purpose of the Head

Start Act.

Let us review the actual language in question. 42 USC

9839(a) provides in part:

Each Head Start agency shall observe
standards of organization, management, and
administration which will assure, so far as
reasonably possible, that all program activities
are conducted in a manner consistent with the
purposes of this subchapter [42 USC 9831 et seq.]
and the objective of providing assistance
effectively, efficiently, and free of any taint
of partisan political bias or personal or family
favoritism. Each such agency shall establish or
adopt rules to carry out this section, which
shall include rules to assure full staff
accountability in matters governed by law,
regulations, or agency policy. Each agency shall
also provide for reasonable public access to
information, including public hearings at the
request of appropriate community groups and
reasonable public access to books and records of
the agency or other agencies engaged in program
activities or operations involving the use of
authority or funds for which it is responsible.
Each such agency shall adopt for itself and other
agencies using funds or exercising authority for
which it is responsible, rules designed to . . .
(3) guard against personal or financial conflicts
of interest . . . . [Emphasis added.]

This language indicates the intent of Congress to

maintain open accountability in the use of Head Start

funds. It explicitly provides a right of public access.

After stating that “[e]ach agency shall also provide for

reasonable public access to information,” it spells out

particulars on how to meet this requirement, including

holding public meetings.

8

 The statute specifically confers an individual right

on members of the public to conduct inspections of books

and records. The opposite situation existed in both Touche

Ross and Alexander, where the statutes lacked language

creating such a right. They offered neither the general

public nor any private individual access to anything. The

oversight they called for was by governmental agencies.

Alexander, supra at 288-289; Touche Ross, supra at 569-570.

The majority simply misses this important distinction.6

It relies on two federal district court cases, Johnson

v Quin Rivers Agency for Community Action, Inc, 128 F Supp

2d 332 (ED Va, 2001), and Hodder v Schoharie Co Child Dev

Council, Inc, 1995 US Dist LEXIS 19049 (ND NY, 1995). But

Johnson and Hodder do not support the conclusion that no

private cause of action exists and they are inapplicable to

the case at hand.

6
The majority states that it “wholly disagree[s]” with
the conclusion that 42 USC 9839(a) confers an individual
right on a member of the public. It contends that 42 USC
9839(a) merely creates a disclosure requirement. Ante at
33 n 49. Again, the majority fails to analyze the actual
language of the statute. 42 USC 9839(a) mandates public
access, such as public hearings, at the request of
“appropriate community groups . . . .” Only by allowing
enforcement of this public inspection and access
requirement can we effectuate Congress’s specific goal of
maintaining open accountability in the use of public funds.
The majority simply ignores this clear congressional
intent.

9

 Neither dealt with 42 USC 9839(a). Johnson concerned

claims of discrimination and substandard enforcement of

Head Start regulations. Johnson, supra at 335. The Head

Start provisions in question were 42 USC 9836a(a)(1) and

(2). Johnson, supra at 336-337.

Hodder concerned claims of employees terminated from

Head Start agencies. Hodder, supra at *16. It dealt with

42 USC 9849(b). Hodder, supra at *12. 42 USC 9839(a) was

mentioned only in passing.

The only thing Hodder and Johnson have in common with

this case is that both involve provisions of the Head Start

Act. But the statutory language scrutinized in Hodder and

Johnson makes no mention of public access as 42 USC 9839(a)

does. Given that Hodder and Johnson do not deal with 42

USC 9839(a), they are of no assistance in our resolution of

this case.

The majority also bases its decision on the general

purpose of the Head Start Act. It assumes that the only

purpose worth considering is the act’s overarching goal of

providing services to low-income children and their

families. It ignores the congressional intent specifically

written into 42 USC 9839(a).

42 USC 9839(a) specifies Congress’s goal of

maintaining open accountability in the use of public funds

and effectuates it by providing a right of public access to
10
books and records. By ignoring these specific provisions,

the majority has effectively substituted its judgment for

that of Congress. In reducing public oversight, it

frustrates the paramount goals of the Head Start Act by

facilitating the misuse of federal funds.

Application of the Cort factors to 42 USC 9839(a)

Given that the language of the statute does not

contradict the existence of a private cause of action, it

is appropriate to apply all the Cort factors. The first

question is whether plaintiff is in the class for whose

benefit Congress enacted 42 USC 9839(a). The statute

indicates that Congress intended to grant access to the

public at large. Plaintiff is a member of the public.

Therefore, plaintiff is within the appropriate class. Cort,

supra at 79.

The second question, whether there is any indication

that Congress intended to create or to deny a private right

of action, has already been discussed. The language of 42

USC 9839(a) indicates a specific intent to create such an

action. There is no legislative history or other material

contradicting this intent.

The third question is whether it is consistent with

the underlying legislative scheme to infer a private right

of action. Cort, supra at 78. As the majority states, the

overall purpose of the Head Start Act is to promote school
11
readiness. 42 USC 9831. As part of its plan to reach this

goal, Congress expressed an intent to maintain open

accountability in the use of public funds in 42 USC

9839(a). In the same section, to effectuate this intent,

Congress provided the public with a right of access to

books and records. Inferring a right of action to

implement this right enforces that intent. Therefore,

inferring a right of action is consistent with the

legislative scheme.

Finally, there is no indication that this is a cause

of action traditionally relegated to state law. And

defendant makes no such argument. To the contrary, an

action pursuant to 42 USC 9839(a) is the only means by

which plaintiff could obtain the information it seeks.

Therefore, the analysis of this factor, as with the other

Cort factors, points to the need to recognize a private

right of action under 42 USC 9839(a).

Where a Legal Right Exists, so Does a Legal Remedy

“The very essence of civil liberty certainly consists

in the right of every individual to claim the protection of

the laws . . . .” Marbury v Madison, 5 US (1 Cranch) 137,

163; 2 L Ed 60 (1803). One of the fundamental tenets of

the American legal system is that, where there is a legal

right, there is also a legal remedy. Id. After it is

determined that Congress intended a right of action, courts
12
presume the availability of all appropriate remedies unless

Congress has expressly indicated otherwise. Franklin v

Gwinnett Co Pub Schools, 503 US 60, 66; 112 S Ct 1028; 117

L Ed 2d 208 (1992).

In this case, a private right of action exists under

42 USC 9839(a). Plaintiff sought the appropriate remedy of

viewing the records of the bids submitted for office

supplies and furniture. Defendant makes no persuasive

argument that viewing this information would be

unreasonable. This proposed remedy is specifically

consistent with the language of 42 USC 9839(a), which

allows for reasonable inspections of books and records.

Therefore, Congress has not expressly indicated that this

remedy is inappropriate. And the trial court did not err

in granting it.

I would affirm the decision of the Court of Appeals.

Marilyn Kelly
Michael F. Cavanagh

13