Transcript

IN THE SUPREME COURT OF THE UNITED STATES

SUE SUTER, et al., Petitioners v. ARTIST M., ET AL.

No. 90-1488

December 2, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m.

APPEARANCES:

CHRISTINA M. TCHEN, ESQ., Special Assistant Attorney General of Illinois, Chicago, Illinois; on behalf of the Petitioners.

JOHN G. ROBERTS, JR., ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae, supporting the Petitioners.

MICHAEL DSIDA, ESQ., Chicago, Illinois; on behalf of the Respondents.

PROCEEDINGS

10:01 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 90-1488, Sue Suter v. Artist M.

Ms. Tchen.

ORAL ARGUMENT OF CHRISTINA M. TCHEN ON BEHALF OF THE PETITIONERS

MS. TCHEN: Mr. Chief Justice, and may it please the Court:

This case raises the question of whether the Federal Adoption Assistance Act and Child Welfare Act of 1980, specifically the provision commonly referred to as the reasonable efforts clause, creates rights that may be enforceable under 42 USC section 1983. The reasonable efforts clause states that in order to be eligible for Federal foster care reimbursement funds, that States must have a plan approved by the secretary that provides that in each case reasonable efforts will be made to keep or return a child home.

The reasonable efforts clause does not provide any further definition or explanation of reasonable efforts. In light of that, the Seventh Circuit Court of Appeals below misapplied this Court's decision in Wilder v. Virginia Hospital Association when it held that this clause was sufficiently specific and definite to create an enforceable right.

The State of Illinois maintains that although the Adoption Assistance Act is mandatory and benefits the plaintiffs here, that it is simply too vague and amorphous to create a Federal right.

This Court has stated that in order to create Federal rights upon the States, Congress must speak with a clear voice because of the values and concerns inherent in our system of Government, and that clear voice and clear statement is simply lacking here.

One of the elements of determining whether a clear statement has been provided by Congress under section 1983 is whether the interest asserted by the plaintiffs is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.

What the Seventh Circuit did here was to take this notion of competence of the judiciary in the abstract. It never looked at the statute at issue here and simply said, that because courts have proved competent to enforce a reasonableness terms in other statutes that have no relation to the statute at hand here, that therefore, courts are competent to enforce this particular reasonable efforts clause.

But this reasonable efforts clause stands in stark contrast, for example, to the clause construed by this Court in Wilder v. Virginia Hospital Association. In Wilder this Court held that the Boren amendment to the Medicaid act created a Federal right to reasonable and adequate Medicaid reimbursement rates, but it did so after a lengthy and extensive analysis of the statute at hand.

And what this Court found was that the Boren amendment there set forth a lengthy list of specific factors, specific objective benchmarks defining what meant reasonable. There are no such benchmarks or factors here, and what we are left with is a reasonable efforts clause with no definition supplied by Congress that will subject the States to a substantive right to reasonable efforts that will be defined not by Congress but by individual judges applying their own notions of reasonableness.

QUESTION: What about the Sherman Act? Doesn't the Sherman Act do the same thing in spades? We preempt State laws regularly on the basis of a determination that the courts are supposed to make, that there has been an unreasonable restraint of trade.

MS. TCHEN: But what is missing here, Justice Scalia, is a specific designation that Congress intended to create a Federal right. What we are trying to do here is we must -- there is no specific designation of a Federal right or Federal intent to create a national standard of child welfare or to Federalize child welfare.

QUESTION: Well, I may agree with you on that, but not because it is too vague. I mean, what does vagueness have to do with whether the right exists or not? You cannot create the right unless it is highly defined?

MS. TCHEN: What this Court has said in Wilder is to set out a three-part test for when under section 1983 this Court can infer a congressional intent to create a Federal right, and the third element of that test is whether the interest is too vague and amorphous. Here we have a statute that we agree is mandatory, benefits plaintiffs, but it is simply too vague, and what this Court has said in Wilder is that there cannot be a Federal right unless there is a specific objective benchmark provided by Congress that measures what is reasonable, and that's what is lacking here.

I think it is important to note that the reasonable efforts that we are talking about here --

QUESTION: Let me ask you on that point, is it so vague that the Secretary could never enforce this provision?

MS. TCHEN: No, what the Secretary does and the Congress has specifically delegated to the Secretary the authority to approve a plan, to make sure that it provides reasonable efforts or to withdraw funds if not.

QUESTION: Well, suppose it -- you have a plan approved such as this one and then assume the State or whatever the agency is, did absolutely nothing to implement it, could the funds be withdrawn?

MS. TCHEN: The funds -- the Secretary would have the discretion to withdraw the funds.

QUESTION: But would it be following a -- enforcing a Federal right if he did so?

MS. TCHEN: No. I think it would be enforcing a Federal statute. Again, section 1983 does not exist simply to remedy statutory violations. Section 1983 exists to remedy deprivation of Federal rights, and what we have to find here is whether there is a Federal right that exists, not merely a mandatory Federal statute that may be violated.

I think it is important to note, we can always state the most egregious case where a statute we would all agree has been clearly violated, but that doesn't answer the question of whether there is a Federal right that is created.

QUESTION: Why can't you use the same test to ask whether a Federal right has been violated, but where nothing at all is being done?

MS. TCHEN: What we need, Justice Stevens, is a benchmark that governs not only the easy case that you have posed, which is where there is simply no efforts at all that are being exerted by the State, but also the harder case, which I submit is this case.

QUESTION: But that is what Justice Scalia's question was directed to, is that reasonableness is a standard that is judicially enforceable in other contexts, but you say not in this context.

MS. TCHEN: I say not in this case because for example, in this case, this is not the case where the State was making no reasonable efforts at all, never assigning --

QUESTION: But this case will decide that case as well.

MS. TCHEN: I think that is true, and I think the problems in this case demonstrate the problems with having a reasonable efforts clause that is not defined by Congress. In this case, what the district court below found was that after the State of Illinois instituted a remedial plan to assign caseworkers more quickly, 83 percent of the time the district court found the State of Illinois was assigning a caseworker within 10 calendar days, less than 2 weeks.

Nonetheless, and we don't know why, the district court found that to be unreasonable. The State further provided specific evidence on why there may be instances in which a delay in assigning a caseworker would be reasonable.

For example, the State of Illinois is under another consent to create another Federal case that requires the State to provide a Spanish-speaking caseworker only to Spanish-speaking families and children. But a Spanish-speaking caseworker may not be available within the 3 days that the injunction requires or even the 10 days in which 83 percent of the cases were assigned.

There are other instances. We had testimony in the preliminary injunction action that a 3-day across the board rule such as was imposed by the district court here requires us to assign a caseworker to a case with less risk, the truant teenager case, as quickly as we assign a case to the severely burned infant.

It is simply -- it's an intrusion by the Federal court on that very specific decision making that child welfare administrators are supposed to make and what Congress intended child welfare administrators to make.

QUESTION: Is there anything about the subject matter of the judgment which makes the Secretary more competent, or perhaps I should say a more appropriate person to make the judgment about reasonableness than a court?

MS. TCHEN: I think so, Justice Souter. This is particularly an area where we don't know what works with abused and neglected children, and I think it's important to note that at the time the act was passed in 1980, this whole concept of requiring States to make reasonable efforts to keep abused children in abusive homes was somewhat new to the States, which is why there was a delayed effective date, and which is why the Secretary in promulgating regulations specifically stated that he made the determination it was better to leave the flexibility to the States and to allow States to make their determinations of how they were going to meet the reasonable efforts clause, allow the States to make the policy decisions of how to balance scarce resources and allocate scarce resources in this very difficult area.

It is, again, I think important to note, reasonable efforts -- these are not reasonable efforts to conduct negotiations around a collective bargaining agreement. They are --

QUESTION: I am sorry, I thought you have finished.

MS. TCHEN: They are not even reasonable efforts, I think, to set reasonable rates or reasonable rents, as in the Wright case, which are monetary calculations that could be measured against a marketplace, and in addition, this Court required specific lengthy factors in the statute.

Here we have no marketplace for reasonable efforts, and we have a much more difficult decision than determining what are reasonable rates or reasonable rents, and yet the plaintiffs ask us to find a Federal right in a statute that provides not only less guidance than the Boren amendment or the regulations in Wright, but absolutely no guidance whatsoever.

QUESTION: Ms. Tchen, do you acknowledge that the statute requires the State to make reasonable efforts in each case?

MS. TCHEN: We agree. We recognize that the statute requires reasonable efforts in each case.

QUESTION: Where does it require that?

MS. TCHEN: Well, it states --

QUESTION: As I read it, the section we are talking about, 671(a)(15) requires the State to come up with a plan that would produce reasonable efforts, but nothing is perfect. I mean, if the plan provides for reasonable efforts, the fact that now and then it may in a particular case not produce that would not seem to me to violate (a) (15), but you think it does?

MS. TCHEN: No, what we think is, it wouldn't necessarily violate (a) (15), which requires the State to have a plan that provides reasonable efforts. There is a separate --

QUESTION: What does it violate then?

MS. TCHEN: There is a separate section, section 672(a) that says that in individual cases, that in order to receive Federal reimbursement, there must be a State judicial determination of whether reasonable efforts were made in the best interest of the child.

Now it is also the case however, Justice Scalia, that Congress recognized there are going to be a lot of cases where there should be no reasonable efforts made at all because of the best interests of the child which the State courts are required to balance as well in section 672 explicitly and this individualized decision making is what was intended under the reasonable efforts clause because the clause itself reads, in each case.

It doesn't say a system of reasonable efforts, which is what the plaintiffs are seeking here. They want a substantive right to allow a Federal court to judge whether there is a system of reasonable efforts by the State.

But there is nowhere in the statute, the plain language never speaks about a system of reasonable efforts.

QUESTION: Well, it speaks of a plan.

MS. TCHEN: It speaks of a plan --

QUESTION: What's the difference between a system and a plan in your view?

MS. TCHEN: Here the plan is an actual document, as in many other Federal and State cooperative funding acts, which requires that the State put together a document, submit it to the Secretary and have it approved.

QUESTION: And that is what has to provide that reasonable efforts will be made?

MS. TCHEN: That's right.

QUESTION: It's the plan.

MS. TCHEN: Is the plan. Now the plan was never at issue in this case, and I think it's telling. The plaintiffs here are not suing because they disagree with the plan that was approved --

QUESTION: They agree that the plan provides for reasonable efforts?

MS. TCHEN: They simply never raised the plan.

QUESTION: They never raised --

MS. TCHEN: They never raised the plan. What they are trying to do is say there is not just a right to a plan, but a substantive right beyond the plan to reasonable efforts which they define.

What is allows them to do and it allows Federal courts to do under this undefined substantive right to reasonable efforts is to peel off one after another various administrative structures in the States and hold it up to a standard of reasonable efforts, and it's already happening.

This case is only one of five that are currently pending against the Illinois Department of Children and Family Services, taking one part of the department's structure after another and holding it up. In this case, it's caseworker assignment. In another case, it's cash assistance and housing to abusive parents. In another case it's parental visitation, and in yet another case, it's sibling visitation.

In fact, there are 13 States and the District of Columbia that currently are exposed to reasonable efforts lawsuits taking one little piece after another. The plaintiffs have even cited one coming out of the Third Circuit most recently last week, in which a visitation rule was held up to the court and under some standard which we don't know because Congress didn't give us a measurement, it said that a visitation rule of 1 hour every other week was somehow not so meager that it fell below a standard of reasonableness.

But Congress has not provided us what that standard would be.

QUESTION: What are the reasonableness requirements that the Court must determine under 672 in the event of payment to a child?

MS. TCHEN: What the reasonableness --

QUESTION: Where is that? Is that quoted in 672?

MS. TCHEN: It's 672. I believe it's in petitioner's brief.

QUESTION: The blue brief?

MS. TCHEN: The blue brief.

QUESTION: I have been looking for it. I can't find it.

QUESTION: 672(a)(1).

MS. TCHEN: 672(a)(1), it's not quoted in full, but on page 24, it's stated that the foster care placement must be the result of a judicial determination that continuation at home, quote, "would be contrary to the welfare of such child, and that reasonable efforts of the type described in section 671(a)(15) have been made."

QUESTION: So the statute does require the courts in this instance to make a determination whether or not reasonable efforts have been made. Is that a different inquiry than the respondents are asking for here?

MS. TCHEN: Yes, it is, Justice Kennedy. It is a uniquely different one. It is a determination on a case-by-case basis, and 672 is very specific. It's on the individual child for whom the State seeks Federal reimbursement, there must be an individualized determination based on the facts of that case, which is, as we submit, the only way you can determine reasonableness. You have to look at the risk to the child. You have to look --

QUESTION: So the reasonableness of the plan is not in question in the inquiry that is made under 672(a)(1)?

MS. TCHEN: No, it's not. That is what plaintiff is seeking -- in fact, plaintiffs specifically disavow that they are looking for that individualized determination, which is the only judicial determination that Congress intended under the reasonable efforts clause.

QUESTION: Ms. Tchen, will you file with the clerk, as soon as you can after the argument, a full copy of the section you were just talking about?

MS. TCHEN: Yes, I will, Mr. Chief Justice.

QUESTION: If you find it's not otherwise in the briefs or in the appendix.

MS. TCHEN: Yes. Actually, I have a copy here.

Plaintiffs completely disavow that particular inquiry. They are seeking a systemic right to reasonable efforts, which simply does not appear anywhere in the statute at all. Furthermore --

QUESTION: You say it doesn't appear in the statute, but the statute does require the plan to include a systemic right, doesn't it?

MS. TCHEN: No, it says a plan that provides that in each case, reasonable efforts will be made.

QUESTION: Well, the in each case language is in -- I thought it was in (a)(2)?

MS. TCHEN: No. It's in 671(a)(15), 671(a)(15) simply says that the plan provide that in each case reasonable efforts be made. It doesn't say system. Elsewhere in the statute there is reference to a case review system which indicates, I believe, that Congress knew and knew how to use the word system when it wanted to use system.

QUESTION: Yes, but the very fact that the requirement is in a plan means it has to be part of the system, doesn't it?

MS. TCHEN: No. I think what the Secretary's regulations say is what reasonable efforts means is a list of services. There may not be one system for providing reasonable efforts. You need to have flexibility. You need to be able to address the variation of problems that exist in a State in this very volatile and highly individualized area of child welfare involving abused and neglected children.

The circumstances vary a great deal. We don't know a lot about what works to keep children at home.

QUESTION: What you are saying is the plan required by the Secretary contemplates variation for different kinds of cases.

MS. TCHEN: The plan simply says a list of services, that the States to comply with the plan, what the regulations say, is that there is a list of services which States may choose to --

QUESTION: May I ask if that regulation is in the materials before us?

MS. TCHEN: I don't believe it's quoted in full but it is also cited both in our brief and in the brief of the United States.

And I would like to reserve the balance of my time.

QUESTION: I just have one question. Assume that there is clear noncompliance with the reasonable plan requirement, could respondents bring an action against the secretary under the Administrative Procedure Act to compel the secretary to withhold payments?

MS. TCHEN: I don't think that is a question that has been directly addressed by this Court. It may well fall as a nonenforcement decision under Heckler v. Chaney and may be precluded from suit as something that is left to the --

QUESTION: But the inquiry there would be the same if such an action were brought?

MS. TCHEN: It's an analogous inquiry, I think, under Heckler whether there is no law to apply, and I would like to reserve the balance of my time.

QUESTION: Very well, Ms. Tchen.

Mr. Roberts, we will hear from you.

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

MR. ROBERTS: Thank you, Mr. Chief Justice, and may it please the Court:

QUESTION: Mr. Roberts, could you answer Justice Kennedy's -- just the question he just put from the point of view of the Government?

MR. ROBERTS: Yes. We don't believe that an action against the secretary would lie because it would involve issues of prosecutorial discretion and no law to apply, so there wouldn't be a direct action against the secretary under the APA.

QUESTION: Prosecutorial discretion?

MR. ROBERTS: Well, the discretion of how to enforce the requirements of the statute against the States, yes. The secretary may well decide that the resources are better used providing care even though the State is not complying and then taking other steps to ensure compliance.

But no individual would have a right to sue the secretary, to compel the secretary to cut off funds to the State.

The court below erred in this case in concluding that the reasonable efforts proviso was sufficiently specific and definite to create a right enforceable under section 1983. I think the issue is most clearly posed by asking the question, reasonable with respect to what?

The statute provides no answer. This is not a case like Wilder where the statute provided for reasonable rates, but then went on at some length to specify what that meant: rates to meet the costs that must be incurred by efficiently and economically operated hospitals providing care in accordance with Federal and State law.

This Court in Wilder said that that statutory language provided an objective benchmark against which to assess the reasonableness of rates. Here, the statute provides none.

QUESTION: How do you answer Justice Scalia's question about the Sherman Act and its reasonableness standard, Mr. Roberts?

MR. ROBERTS: First of all, the Sherman Act specifically directs the courts to enforce the provision. There is no such direction to Federal courts in this case.

Second of all, I think the Sherman Act does provide an objective benchmark: the standard of free market competition which the courts can use in applying those vague terms as well.

In this case the regulations also don't answer the question, reasonable with respect to what? The case is therefore not like this Court's decision in Wright where the Court relied on regulations defining what was included in rent in holding that tenants could enforce a rent ceiling under section 1983.

Here the secretary specifically determined not to define reasonable efforts in the implementing regulations.

QUESTION: Does that mean, Mr. Roberts, that the secretary could never withhold funds for failure to comply with this provision?

MR. ROBERTS: No, Your Honor. The secretary can enforce the reasonable efforts provision by engaging in precisely the sort of social policy judgments that are entrusted to an expert administrative agency but which are not entrusted under our system to the Federal courts.

QUESTION: Are they entrusted pursuant to any standard specified by Congress or are they entirely made up by the secretary?

MR. ROBERTS: Well, the secretary's determination of what's reasonable in specific cases.

QUESTION: How does the secretary know what's reasonable, that is what I am asking you.

MR. ROBERTS: He knows by making the sorts of policy judgments on each case, as a State submits a particular plan and they say here is what we are going to do to comply with reasonable efforts, the secretary makes policy judgments --

QUESTION: Are those policy judgments guided by anything Congress says in the statute?

MR. ROBERTS: No, other than reasonable efforts, that is what confines the secretary's discretion. It is a very broad --

QUESTION: How does it confine the secretary's discretion anymore than it would confine the judge's discretion?

MR. ROBERTS: It doesn't confine the secretary's more than a judge's, but the secretary, the Congress determined, had the expert experience in the field of child welfare to make the policy judgments. There are, as we indicated, no right answers in this area, but Congress entrusted the secretary in applying the act to come up with good policy judgments. They may be different in different cases --

QUESTION: Without any legislative guidance whatsoever?

MR. ROBERTS: The guidance is simply reasonable efforts to keep families together and to provide for the return of the children.

QUESTION: Almost as vague as public interest, convenience, and necessity, isn't it?

MR. ROBERTS: Well, except that in this case there are no objective standards to which a court can resort. In those other cases there are. Now, some of respondent's amici do say there are objective standards. The National Association of Social Workers, for example, says that the objective standards are those published and endorsed by the National Association of Social Workers.

And that highlights the problem in this case. Congress refrained from enacting any such specific standards in the statute. The secretary declined to enact any such specific standard in the regulations, though she was urged to do so.

And now these groups come before this Court and urge this Court to elevate their professional standards to the level of an enforceable Federal right.

QUESTION: What are the State courts supposed to use? It's the same language that the State courts are supposed to apply under 672 (a).

MR. ROBERTS: The State courts can apply it in the context of a particular removal decision involving a particular child and a particular family history. The Federal courts -- the respondents disclaim any such role for the Federal courts under section 1983. They are much more interested in defining on a systemic level in the abstract what constitutes reasonable efforts.

The State courts look to the particular case, what the State has done for this child against -- and balance that against the asserted need to remove the child from the home.

Now the respondents may not agree with their amici on the source of the standards to apply in this case, but if it's not those standards, which standards? If the Federal courts are going to enforce a supposed right to reasonable efforts, the first thing they are going to have to do is set an objective benchmark against which to assess reasonableness, and that exercise involves policy judgments beyond the competence of the article 3 branch, not beyond their competence in the sense that judges would be incapable of coming up with an answer in any particular case, but beyond their competence in the sense that it moves the courts from adjudication of particular cases and controversies to the setting of social policy.

QUESTION: Well, I suppose the State in submitting a plan promises to live up to it.

MR. ROBERTS: Yes. It sets forth in its plans how it intends to comply with the requirement and the secretary either accepts it or rejects it.

QUESTION: Says that is a good way, that's fine. That is just fine, and so why would a court have to decide what a benchmark is, they just want to enforce this promise that the State has -- here is what we are going to do and the secretary says fine, go ahead and do it. And why can't a private person just enforce that contract?

MR. ROBERTS: Well, in the first place, that's not what is involved here. The State's plan says nothing about providing a caseworker within 3 days and the Federal court is simply enforcing that requirement. The State's plan says nothing of the sort.

QUESTION: What does it say?

MR. ROBERTS: It simply lists the State services that are available, through which it intends to comply with the requirement.

QUESTION: Doesn't it mean that in each case these services will be available?

MR. ROBERTS: It means that in each case reasonable efforts will be made, and here is an array of services from which they can draw. It doesn't mean that every service will be available in every case. In some cases no --

QUESTION: What if the State doesn't provide any services at all?

MR. ROBERTS: Well, in some cases that may be appropriate. If you have a situation where immediate removal of the child is demanded for health and safety reasons, no efforts at keeping the family together may be the appropriate efforts.

The position of the plaintiffs here is at least three steps removed from the statutory language. On its face this statute simply sets forth a contract between the United States and the State, confers no rights on anyone. If there are any rights, it would seem to be simply rights to what the statute provides, a plan providing for reasonable efforts approved by the secretary.

Illinois has a plan, does provide for reasonable efforts, has been approved by the secretary. If there were any further right to actual implementation of the plan it would be seem to be just that, implementation of the plan. Here the plaintiffs and the court go beyond that and set forth the requirement of 3 days in every case though the State plan says nothing about that.

We are not told why 3 days is reasonable in every case while the 9- to 10-day average of the State is not, nor for that matter, why 3 days is reasonable here when the First Circuit determined that 24 hours was needed to meet the reasonableness requirement.

The point is that determining how quickly a caseworker capable of providing services should be assigned to a new case involves basic policy judgments about the allocation of limited resources in a child welfare system, the sort of policy judgments entrusted to the States in the first instance and to the secretary.

If there are no further questions --

QUESTION: Very well.

Mr. Dsida, we'll now hear from you.

ORAL ARGUMENT OF MICHAEL DSIDA ON BEHALF OF THE RESPONDENTS

MR. DSIDA: Thank you, Mr. Chief Justice, and may it please the Court:

This case turns on two critical issues. First, Federal courts are competent in applying reasonableness standards of the type at issue here, and their task is especially straightforward in this context when the defendants have made no efforts, let alone the reasonable efforts required of them by the statute, to keep families together.

QUESTION: Do you agree with the petitioner, Mr. Dsida, that your clients have not attacked the plan filed by the State at all?

MR. DSIDA: Your Honor, I don't think that is a fair characterization of our complaint. What we contended in our complaint was that the defendants had failed to make reasonable efforts and it was clear --

QUESTION: Why do the defendants have to make reasonable efforts? The statute says, the plan shall provide that reasonable efforts shall be made, doesn't it?

MR. DSIDA: Your Honor, the plan also must be in effect -- it's clear that the statute requires that the specific obligations under the plan must be implemented by the State and that has been this Court's position under Federal/State cooperative --

QUESTION: So what's your answer to the question I asked you? You don't agree with petitioners, that you did not attack the plan, and therefore you say you did attack the plan?

MR. DSIDA: We did attack the plan. We didn't use the word State plan specifically, but we did attack the plan in that defendants have failed to live up to their obligations under the plan.

QUESTION: But that's two different things.

MR. DSIDA: Your Honor, the plan --

QUESTION: Isn't that two different things? One, whether the plan complies with the statute, and second, whether the defendants have lived up to their obligation under the plan. Is that or is that not two different things?

MR. DSIDA: That is two different things, Your Honor. I think defendants correctly stated that the plan is different from their obligation. The plan is simply is a document which they submit to the secretary.

QUESTION: And that's what the statutory language that -- at least the petitioners were talking about related to, isn't it?

MR. DSIDA: The statutory language requires them to submit a plan to the secretary --

QUESTION: And you don't claim the secretary made a mistake in approving the plan?

MR. DSIDA: That's not our --

QUESTION: Just yes or no.

MR. DSIDA: No, Your Honor.

QUESTION: All right.

MR. DSIDA: The question today is whether or not the defendants have lived up to their obligations under the plan.

QUESTION: So we take the case on the assumption that the plan is reasonable?

MR. DSIDA: That the plan is reasonable?

QUESTION: Yes.

MR. DSIDA: Your Honor, the plan was approved by the secretary. The defendants failed to adhere to their obligations under the plan.

QUESTION: But as the base point, the beginning point is that we assume that there is in place a plan that if followed would comply with the statute.

MR. DSIDA: Yes, Your Honor, that's a fair assumption. But what happened in this case is that defendants failed to make any efforts and in that context courts are competent to enforce the reasonableness standard provided here.

The second crucial point here is that enforcement of the reasonable efforts requirement will preserve only the most limited role for Federal courts in this area --

QUESTION: Excuse me. It seems to me you are arguing a different theory now. If, as you say, all they are trying to do is get the State to live up to the State's promise under the plan, the benchmark should not be the very vague reasonableness standard of the statute, but rather the benchmark should be the plan.

MR. DSIDA: The plan contains a promise by the State of Illinois to make reasonable efforts in each case, and they did not do that here. Defendants up until today did not contest before the court that issue. There is no dispute --

QUESTION: I see. Does the plan say that in so many words, we promise to make reasonable efforts in each case?

MR. DSIDA: The plan essentially repeats the language of the statute, that the State will provide that reasonable efforts will be made in each case.

QUESTION: Is the plan in the record?

MR. DSIDA: No, Your Honor, it's not. But if the Court would like, we could submit that.

QUESTION: Well, if you say you want to enforce the plan, it looks to me like you would let us know what the plan you are trying to enforce is.

MR. DSIDA: The plan contains the requirements set forth by the statute and among them --

QUESTION: Would you see to it that the clerk has copies?

MR. DSIDA: Yes, Your Honor. Enforcing this particular statutory requirement will not, will preserve only the most limited role for Federal courts as well, but it's a role which is consistent with the contract entered into between the Federal Government and the States under title IV-E.

Now Illinois purports to adhere to this obligation by assigning a caseworker to each abused and neglected child in his or her family. Under DCFS's system, the caseworker alone is responsible for providing services to keep children in their own homes, and for providing services to make it possible for children to return to their homes if they have been placed in foster care.

But as the district court found in plaintiff's cases, defendants regularly and systematically deprived these children of caseworkers and the services which caseworkers alone can provide for weeks and months at a time.

QUESTION: Mr. Dsida, it seems to me that under your theory, that the court would be asked in each instance to look at the specifics of the plan and then determine whether in that State the plan was specific enough to give some cause of action for enforcement, and that would become the standard, which would seem perhaps to result in different standards being applied in different States depending on the content of a particular plan.

MR. DSIDA: No, Your Honor. The ultimate obligation of the State is the one set forth by Congress in the statute. The State must provide reasonable efforts to keep these children with their families or to return them to their families. That is the standard which the courts are to apply. That's the obligation which defendants admit that they are bound to adhere to, and the Solicitor General agrees on that point.

QUESTION: And you don't rely on any other specifics in this particular State of Illinois as supporting your cause of action?

MR. DSIDA: No, Your Honor, that's the obligation which we contend defendants failed to adhere to, and it's clear in this case that they did not. The district court found that in plaintiff's case, that defendants regularly deprived children of caseworkers, which is the sole means DCFS chose to use under their system to implement this reasonable efforts requirement.

And in a situation like this, it's very straightforward for courts to enforce and apply this statute. The courts below needed to look no further --

QUESTION: Well, I thought the courts below did in fact look further and look at what Illinois had done and said and because the State had indicated that the provision of child care workers was the linchpin and so forth, that that provided the standard. The court didn't need to do that, I take it?

MR. DSIDA: The court didn't need to do that, but what it was doing there was ultimately crafting its remedy, consistent with the State's approach in trying to resolve the problems which the plaintiffs had presented. And the court looked at the defendant's plan to restructure the department after it heard extensive evidence that the defendants had regularly and systemically deprived these children of caseworkers, and the reasonable efforts which only caseworkers can provide.

So the court looked at the caseworkers only because defendants had made --

QUESTION: Well, then if another State hadn't made the provision of child caseworkers a linchpin then no remedy could be devised?

MR. DSIDA: It would depend on the particulars of that case. If a State employed another technique to supposedly provide reasonable efforts, but then utterly failed to do so, as Illinois had failed to do here, then a court might be -- it might be appropriate for a court to look at the particular practices of that State to provide a remedy which is not intrusive and which would not involve the Federal courts in the administration of the State agency's operations, and that's what the court did here.

It employed a remedy, exercising its broad remedial discretion, which was consistent with the State's approach, and it was one which was not intrusive and one which provided -- which essentially deferred to the State's decisions and how they were to implement the requirements of this statute.

QUESTION: Would it have been within the statute for the Federal administrator, for the secretary to refuse to approve a plan unless it was more specific than the one involved here? You say that the plan here essentially just repeats that best efforts will be made.

Would it have been appropriate for the secretary to say, I won't approve a plan unless it provides for social workers to be assigned within 3 days?

MR. DSIDA: The secretary could have made that decision in this case, but the secretary did not.

QUESTION: And if he had, we wouldn't be here. We wouldn't have this case?

MR. DSIDA: If the secretary had not approved the plan?

QUESTION: Right.

MR. DSIDA: That's correct, Your Honor, because presumably the State would have then responded appropriately in resolving their violation of the statute in that regard.

But what's clear here is that the Court can determine that the State has failed to live up to its obligations to make reasonable efforts. Courts apply -- Federal courts apply reasonableness standards every day. It is a central part of the task of any Federal court judge, and that includes assessing the reasonableness of a party's conduct under countless Federal statutes.

QUESTION: Is there something peculiar about the reasonableness judgment here in implicating essentially judgments about the appropriate determination of the way the State uses its money?

In other words, one of the benchmark problems in this case is that there doesn't seem to be a benchmark anywhere like the well-run clinic in Wilder, the free market, whatever, of whatever value that is.

Here, the reference has to be an appropriate expenditure of State revenues and [ILLEGIBLE WORD] appropriate determination about the amount [ILLEGIBLE WORD] revenues to be used, or do those two elements of the decision make this something quite different from the normal reasonableness determination that Federal courts make every day?

MR. DSIDA: Your Honor, if I understand your question, I don't think the courts are called upon under this statute to assess whether or not a State has spent its money appropriately.

QUESTION: What if the State simply replies, as it seems to me it is bound to do in a certain number of cases, no, we are not going to have a caseworker for every complaint in 3 days because we haven't got enough money to pay caseworkers, and we haven't got enough money to do that because we have to build highways and we don't want to raise the tax rate and so on.

Ultimately, I suppose any State could have a caseworker in 3 days if it wants to spend money enough. Why isn't that necessarily implicated?

MR. DSIDA: Your Honor, the State has accepted the obligation imposed by it under title IV-E by accepting substantial Federal funding --

QUESTION: It has accepted an obligation to do something which is reasonable, but what is reasonable is in part a decision about the appropriate expenditure of State funds in relation to the problem, and there doesn't seem to be any more specific Federal standard to which a Federal court can look in determining whether that particular aspect of reasonableness has been satisfied.

MR. DSIDA: Your Honor, under this Court's decision in Wilder, courts would be obligated or plaintiffs would be under a heavy burden to show that a particular State's conduct was not reasonable, did not meet the terms of the statute, so courts wouldn't be delving into the minutia of the State's administration and the State's spending of the funding.

But what this case is about is that the State has made no efforts and although there may be gray areas, there may be difficult cases for courts to determine, it's clear that in this case, the State's failure to make any efforts to keep these children with their families, and its failure to make any efforts to return children to their families was not reasonable.

QUESTION: You are asking for more than simply a determination that nothing is not reasonable. You are asking for a determination, in effect, of what is reasonable, assignment in 3 days, whatever.

MR. DSIDA: Your Honor, the assignment -- the remedy crafted by the district court was not the violation that -- we were not saying that failure to assign caseworkers is required under the statute. What we alleged was that defendants were not making reasonable efforts. Under their system, the caseworker is the linchpin, the only way the defendants make reasonable efforts, and we asked the district court to develop a remedy consistent with the State's reliance on caseworkers --

QUESTION: The remedy being, in effect, a plan for the assignment of caseworkers --

MR. DSIDA: Yes, Your Honor.

QUESTION: -- and standards determining when they should get assigned.

MR. DSIDA: Your Honor, that is in fact what we asked, but that is the remedy that the district court choose to use in deference to the State agency which itself elected to use caseworkers as the means by which reasonable efforts are made in each case.

We were not asking to impose a new structure on the State, and the district court ultimately deferred --

QUESTION: You weren't asking them to order caseworkers when in fact caseworkers had not otherwise been thought appropriate. What you are asking them to do is to determine when and how caseworkers should be used.

MR. DSIDA: Your Honor, ultimately the district court --

QUESTION: Isn't that true?

MR. DSIDA: Your Honor, we asked the district court to order the defendants to provide caseworkers, that is true.

QUESTION: Not just to provide caseworkers to provide caseworkers subject to certain standards of assignment, subject to a standard governing the number of days within which workers must be assigned, isn't that true?

MR. DSIDA: That's correct, Your Honor, and it was based on extensive testimony and extensive records documenting the importance of caseworkers under DCFS's system.

If the State determines that there is another means for them to provide reasonable efforts, there is another avenue for them to adhere to the obligations under the statute, they can go back in front of the district court, present their new approach to the court and say, Your Honor, this is how we --

QUESTION: Fair enough. And if they can't and you in effect are claiming or the Federal court is claiming that there ought to be a caseworker assigned within 3 days and the State says no, we can't do it because we haven't got enough money to pay for caseworkers, then to go back to my original question, ultimately you are asking for a determination about the appropriate expenditure of State money.

MR. DSIDA: Your Honor, I do not think that is a fair characterization of our position here. The Court does not have to look at how the State is spending the money, the Court is looking at --

QUESTION: Well, look, let's assume -- maybe I was leaving a term out, let's assume that in fact the State is correct, that it simply does not have a budget which would allow for the hiring of enough caseworkers to satisfy, we will say, the 3-day standard.

The question is, should money be appropriated in a different fashion, isn't that true?

MR. DSIDA: Should Federal money be appropriated?

QUESTION: Should State money? I mean, it's a State/Federal mix, I assume.

MR. DSIDA: Your Honor, the State has entered into a contract with the Federal Government and the plaintiffs in this case are the ultimate beneficiaries of that contract.

QUESTION: Would you answer my question first and that is --

QUESTION: Mr. Dsida, when a Member of the Court asks you a question that can be answered by a yes or no, you should --

MR. DSIDA: I apologize.

QUESTION: -- answer yes or no and then give your reasons for answering the way you did.

MR. DSIDA: I apologize, Your Honor. Ultimately, Your Honor, it would require looking at the State's budget, and it may in this case require the agency to restructure its budget in such a way to fulfill its obligations under the injunction.

QUESTION: Yes, but may I just interrupt? Is it clear that the budget is of State money or maybe this is a budget of the Federal program? Does the record tell us anything about how much of the money that is needed to buy, to pay for additional caseworkers would come from the Federal subsidy and how much would come from the State tax revenues?

MR. DSIDA: No, Your Honor, that's not in the record. But defendants have accepted substantial Federal funding --

QUESTION: Presumably, the purpose of the funding was to enable the State to comply with this program.

MR. DSIDA: That's correct, Your Honor.

QUESTION: So how do we assume there is a need for the State to spend a single dollar of its own money? We just don't know.

MR. DSIDA: That's correct, Your Honor, and I don't think the defendants have shown that the State is under any sort of financial burden which the Court, or which Justice Souter, you were concerned about.

There is nothing in the record which defendants have presented to show that they are unable to adhere or comply with the terms of the --

QUESTION: That may be. I am in no position to suggest otherwise there, but let me ask you just one more question. Are we unable to tell from this record even whether the funds for social workers or the funds for the administration of the program in general consists of a mix of State and Federal dollars? Do we not even know that?

MR. DSIDA: There is nothing in the record, no, Your Honor, there is no -- the record doesn't speak to how the money is divided between the Federal and the State governments and how it would adhere to this obligation.

But ultimately the defendants have accepted Federal funding under this statute and they concede that this statute imposes a binding obligation on them.

QUESTION: Does the Federal statutory scheme envision that the Federal Government will fund 100 percent of the costs or does it assume that it's going to be a shared cost, State and Federal?

MR. DSIDA: Your Honor, the statute envisions that the costs will be shared --

QUESTION: It's shared, it is not?

MR. DSIDA: Yes, Your Honor.

QUESTION: Exactly.

MR. DSIDA: And in fact, section 674 provides an elaborate funding mechanism to determine how the State is to be funded, but there is no question about whether or not defendants are under this obligation to make reasonable efforts.

The sole question is whether or not courts are capable of determining whether or not the State has violated its obligation in this case.

The record makes clear that in this case they have not. The defendants do not have a plan in effect to make reasonable efforts to prevent or eliminate the need for removing these children from their homes.

QUESTION: Well, the real question is whether a deficiency in that regard, if it exists, is one that is to be remedied by the Secretary's withholding of funds or by some individual suit under section 1983 or otherwise.

MR. DSIDA: Your Honor, this Court has repeatedly held since Rosado v. Wyman that the Secretary's ability to cut off funding under a Federal/State cooperative funding statute does not preclude enforcement of the statute under section 1983 by individual plaintiffs, and that is the case here.

In fact, the secretary --

QUESTION: Yes, but we have also said that in order to provide a private cause of action under 1983, we have to find certain things, certain objective standards, and one thing and another. Isn't that the question before us?

MR. DSIDA: Your Honor, the question is whether -- that is not the question before the Court. The question is whether or not courts are competent to enforce this reasonableness standard, and courts enforce reasonableness standards on a regular basis. It is a central task of Federal courts.

And in fact, in the Wilder case, less than a year and a half ago, this Court again affirmed that Federal courts are capable of enforcing reasonableness standards, even though under that statute Federal courts would be required to look at, among other things, what constitutes adequate health care, what constitutes reasonable access to adequate health care, whether or not the State's Medicaid rates adequately account for the particular needs of individual hospitals serving a disproportionately large number of low income patients.

In short, a rather complicated inquiry, but one which, under this Court's decision in Wilder, the courts are well-equipped to undertake, and there is no reason to believe that Federal courts are any less capable of enforcing the reasonableness inquiry, a requirement set forth in this statute.

In fact, the State court enforcement or the State court decisions under section 672 (a) (1) provide further evidence that courts generally are capable of assessing whether or not a State has made reasonable efforts to keep a family together, and defendants present no reason to or nothing to distinguish Federal courts' ability to enforce that standard contained in this Federal statute.

Instead, they point only to this section as an indication that Congress intended to preclude enforcement under section 1983 of this statute, but that State court determinations under this section occur only at the time the State assumes custody of the child. They have no bearing on children who remain in their homes but are at risk of being removed when the State is making no efforts to keep them there.

They have no bearing on children who have already been placed in foster care when the State is making no efforts to return them to their families. These determinations under section 672(a)(1) provide no opportunity for -- to address the sort of systemic grievances which plaintiffs are seeking to remedy here.

In short, this provision pales in comparison to the express cause of action provided by Congress in the statutes at issue in Smith v. Robinson or National Sea Clammers, which this Court found sufficiently comprehensive to preclude enforcement under section 1983.

Just because section 1983 is available, however, does not mean that courts will be flooded with challenges to particular casework decisions in individual cases. The Adoption Assistance and Child Welfare Act, like the Boren amendment, the provision at issue in Wilder, affords States substantial discretion in how they are to implement their obligations under the statute.

In keeping with Wilder then, plaintiffs will be under a heavy burden to show that the State's conduct fell outside of the range permitted by Congress under the statute.

In fact, in the Winston case which we addressed in our supplemental memorandum, the Court of Appeals for the Third Circuit showed how this heavy burden and this substantial discretion will prevent the sort of flood of litigation which defendants predict from ever occurring.

In that case the court first confirmed that the reasonable efforts requirement created enforceable rights under section 1983 but then it went on to hold that Pennsylvania's visitation policies were within the range of conduct permitted by Congress under the statute.

Pennsylvania had in fact exercised appropriate professional judgment, appropriate discretion in setting up those visitation policies, and as a result the court affirmed the judgment of the district court in favor of the State and county defendants.

Beyond that, beyond this heavy burden and the discretion afforded States, collateral estoppel will also serve to preclude what in all likelihood would otherwise be the bulk of claims under this statute, namely, parents challenging the decision to remove a child from the home in the first instance.

QUESTION: Mr. Dsida, I think you may well be right, that the statute is not as comprehensive as other ones that we have found whose comprehensiveness precludes the inferring of any private right. But comprehensiveness aside, you have here a statute that at the general level puts the thing in the lap of the secretary. It leaves it up to the secretary to determine whether a plan is adequate or not and he can disapprove a plan.

MR. DSIDA: That's correct, Your Honor.

QUESTION: And there may be a lawsuit available to set aside his approval of a plan, that's conceivable.

MR. DSIDA: Your Honor, I don't believe that under Heckler v. Chaney we could challenge the secretary's decision to approve or disapprove a particular State plan. I don't think we have that remedy available.

In fact, the only thing that the secretary does in enforcing the State's plan is looking at the individual cases in the State courts and determining whether or not the State court orders have found that reasonable efforts have been made.

There is no independent assessment of the State's efforts, either in the individual cases or on a systemic basis. The secretary simply fails to do that, and in light of that, the secretary's conduct and the inclusion of the secretary in the remedial scheme doesn't provide the sort of comprehensive mechanism necessary for close enforcement of the statute --

QUESTION: So the secretary could approve a plan that is grossly inadequate?

MR. DSIDA: Yes, Your Honor, under --

QUESTION: What would your remedy be? You have none?

MR. DSIDA: Our remedy is the Federal courts, Your Honor.

QUESTION: Wait, you say you are here enforcing the secretary's plan.

MR. DSIDA: No, Your Honor.

QUESTION: You are not here enforcing the secretary's plan?

MR. DSIDA: The State plan includes their obligation to make reasonable efforts. We are attempting to enforce the obligation that the State agrees to undertake, to make reasonable efforts to keep families together.

QUESTION: So you are saying, this is a statute that does not allow the direct review of the secretary's disapproval of a plan but somehow achieves the same result through 672 (a)? I mean, that is what you are saying. You are saying if the plan is inadequate you can kick it over.

MR. DSIDA: I am sorry. I don't understand Your Honor's question.

QUESTION: Let's assume the secretary approves an inadequate plan. You say there is no direct action to stop that?

MR. DSIDA: We cannot review the secretary's decision in that context pursuant to Heckler v. Chaney.

QUESTION: However, you can under 672 (a) come in and say what the secretary has said is good enough is not good enough because the State promised to do not only what the secretary said was enough, but reasonable efforts.

MR. DSIDA: Your Honor, our claim is under 671 (a) (15). That is the provision of the statute of that we are contending defendants failed to adhere to here. The secretary's determination solely relates to whether or not the State courts have entered these particular orders at the time the court takes custody of the children.

There is no assessment under the secretary's approach of the efforts made to return children to their families, and there is no assessment under the secretary's approach of efforts made at the time children are in their homes to keep them in their homes, and independent of that, Your Honor, independent of the secretary's approach, this Court has held that the secretary's ability to cut off funding or approve or disapprove a plan does not provide an indication that Congress intended to foreclose enforcement of a statute under section 1983, which this Court has repeatedly held is intended to provide a broad remedy for violations of Federal rights, privileges and immunities.

That is the case here. Defendants have violated plaintiffs' rights under the statute to reasonable efforts to keep them with their families. The Adoption Assistance and Child Welfare --

QUESTION: Mr. Dsida, the secretary has the power that you are asserting as well, right, under 671 (b), the secretary could cut off funds for failure of the State to keep up its promises, right?

MR. DSIDA: Yes, Your Honor.

QUESTION: But he has chosen not to do that.

MR. DSIDA: He has chosen not to do that, Your Honor. But that does not preclude our ability to enforce the statute under section 1983.

The adoption -- Congress enacted this statute to keep children out of foster care whenever possible and enforcement of the reasonable efforts requirement is consistent with that purpose and is required by the structure, the language and the history of the act.

The reasonable efforts requirement is at the heart of the Adoption Assistance and Child Welfare Act and consistent with Congress's intent, it must be enforceable.

QUESTION: I take it the reason that Heckler v. Chaney would apply in your view is that there is no meaningful standard to judge the secretary's actions?

MR. DSIDA: No, Your Honor, I don't believe that is the case. Heckler v. Chaney provides the State, I am sorry, provides the agency substantial discretion in determining how to enforce a particular statutory provision.

QUESTION: But the reason there was no action permitted there was there was no meaningful standard by which to measure the secretary's actions.

MR. DSIDA: Your Honor, if I recall that case, Your Honor, I think ultimately it turned on whether or not there are specific standards which the State or which the secretary is obligated to adhere to in enforcing the statute.

There are no particular guidelines or there is no flow chart or something to that effect dictating how the secretary is obligated to review the State's plan. The secretary does in fact have some discretion in making those determinations, but there is not -- there is certainly a means for courts or the secretary to use in reviewing the State's plan, namely, whether or not the State is providing reasonable efforts.

And that is not the case here. The defendants simply failed to provide any efforts and while there may be difficult cases under this statute, this case is not one of them.

Thank you.

QUESTION: Thank you, Mr. Dsida.

Ms. Tchen, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CHRISTINA M. TCHEN ON BEHALF OF THE PETITIONERS

MS. TCHEN: Three brief points. In response to Justice Souter's questions regarding the record and the allocation of State resources, when the district court indicated its intent to impose a 3-day across the board mandatory injunction on the State, the State administrator over the case assignment process, Mr. Goad, did submit a supplemental affidavit, it's at the district court record, item under 96 in which Mr. Goad stated that to comply with the 3-day across the board injunction which was not what the State's original plan was with respect to caseworker assignment, would require the reallocation of resources from other areas in the department's budget.

We were unclear --

QUESTION: Would that reallocation involve State money as distinguished from Federal money?

MS. TCHEN: Yes, it would because the statute, although it's not in the record as a factual matter, the statute itself in sections 672 and 674 makes specific what title IV-E reimbursement is available. It is available on a dollar-for-dollar basis. If the State spends $1 for foster care, for maintenance payments, it receives 50 cents back from the Federal Government and there is a small administrative sharing of the costs as well.

QUESTION: Ms. Tchen, I really don't understand this argument. You don't really think that if the State comes in and pleads poverty to the secretary and says, we are a very poor State and therefore, we are going to make no efforts, for us that is reasonable, we are so poor that nothing is reasonable.

MS. TCHEN: No, I think -- I am not arguing that, but I am arguing --

QUESTION: So what relevance does that have? I don't --

MS. TCHEN: What relevance it has is that in fact in the secretary's regulations, the secretary made the decision not to implement, not to promulgate a mandatory regulation that said, States, you must do this, this and this to comply with reasonable efforts, because in promulgating that regulation, the secretary said that the difficult decisions of how to allocate scarce resources and State resources in this area must be left to the States.

What the district court here did was to take over that decision making for the State and say, I don't care that you have to take money away from other services, you are going to spend money to assign caseworkers within 3 days.

QUESTION: May I ask this question? Is the question whether, quote, reasonable efforts, unquote, have been made a question of Federal law or State law?

MS. TCHEN: In the instance, in section 672 where there is individual determinations delegated specifically by Congress to the States, we believe it is a matter of the States looking at their individual case law, how they weigh best interests of the child --

QUESTION: Your answer is, as the Chief Justice said, sometimes you can give a short answer --

MS. TCHEN: I think it's the State law --

QUESTION: -- so you think you it's a question of -- the meaning of these words in this Federal statute is a question of State law?

MS. TCHEN: Defers to the States. It defers to the States in this area --

QUESTION: No, not just deference, ultimately.

MS. TCHEN: Ultimately, section 672, we believe, gives that decision to the States.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Tchen.

The case is submitted.

(Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)