The Fourth Circuit affirmed the district court’s refusal to vacate a consent decree regarding Maryland’s foster care program. Both the district court and the Fourth Circuit declined to address whether 42 U.S.C. § 1983 provides a cause of action to enforce the applicable provision of the Adoption Assistance and Child Welfare Act (“AACWA”). Instead, the circuit court held that Maryland failed to prove that the law of the case was overruled or dead wrong. L.J. v. Wilbon, 2011 WL 228626 (4 th Cir. Jan. 26, 2011).
This case was initially filed in 1984, alleging serious systemic deficiencies in the Baltimore foster care system. In 1988, the Fourth Circuit affirmed a preliminary injunction for prospective relief requiring the state to maintain standards for foster homes and operate a case review system for each child in foster care. Shortly thereafter, the state entered into a consent decree. Implementation of the decree continued over the next decade, with problems continuing. A contempt hearing was scheduled in September 2008, but the state offered to negotiate a settlement, postponing the hearing. In June 2009, an agreement was reached, but before it was entered, in September 2009, the state moved to vacate the 1988 decree and opposed entry of the 2009 modified decree based on intervening Supreme Court cases.
The Fourth Circuit considered whether Horne v. Flores, 129 S.Ct. 2579 (2009), met the standard under Fed. R. Civ. Pro. 60(b)(5) for a significant change in law that renders enforcement of the decree detrimental to the public interest. Rufo v. Inmates of Suffolk Co., 502 U.S. 367, 384 (1992). The state relied upon a footnote in Horne indicating that because there was no private right of action to enforce the No Child Left Behind statute, only the government could enforce it. Maryland argued that Horne constituted a significant change in the law. The Fourth Circuit disagreed, concluding instead that “Horne reinforced the well-established principle that private plaintiffs cannot bring a claim to enforce a statute that lacks a private right of action.”
Nevertheless, the court assumed that Horne did constitute a significant change in law, and considered whether Suter v. Artist M., 503 U.S. 347 (1992), held that there is no cause of action under § 1983 to enforce the AACWA. After noting that the state’s delay of 18 years in relying on Suter would “bring into question the appropriateness of equitable relief,” the court held that Suter did not overrule the Fourth Circuit’s 1988 decision upholding the preliminary injunction. The court stated: “Our holding in L.J. II that Appellees had a private right of action to enforce the relevant provisions of AACWA is ‘the law of the case’ and is therefore presumptively controlling, absent proof to the contrary.”
The Fourth Circuit observed that Suter had held that 42 U.S.C. §§ 671(a)(9) and (15) of the AACWA were not privately enforceable under § 1983, because the provisions were too vague for private enforcement. Suter also held, the court explained, that since the requirements were included in a list of items for a state plan, all that was required of the state was to have a state plan, not to actually follow the requirements. But Congress passed a statute specifically disapproving the rationale in Suter regarding the unenforceability of requirements in state plans, though not overruling the result. 42 U.S.C. § 1320a-2. The Fourth Circuit stated: “Whether a plaintiff has a right to bring an action under a particular provision of AACWA requires a section-specific inquiry.” The L.J. case concerned 42 U.S.C. §§ 671(16), 675(1), and 675(5)(b), which were not addressed in Suter. The Fourth Circuit concluded that Maryland had “failed to establish that Suterforecloses a private plaintiff’s ability to bring an action pursuant to 42 U.S.C. § 671(a)(16).” The court also noted that Suter quotedRufo for the principle that “parties may agree to provisions in a consent decree which exceed the requirements of federal law.”
Public Justice Center represents the plaintiffs. The case was initially brought by the Legal Aid Bureau of Maryland.