OFFICE PLANNING GROUP, INC. v. BARAGA-HOUGHTON-KEWEENAW CHILD DEV. BD.

YOUNG, J.

Plaintiff is a disappointed bidder that seeks disclosure from defendant of bid documents under 42 U.S.C. 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 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 U.S.C. 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 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.

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 U.S.C. 9839(a), which provides, in relevant part:

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 Start grantees are not subject to the FOIA provisions. The program officer further noted that, under § 9839(a) and its corresponding HHS regulation, 45 C.F.R. 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 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 C.F.R. 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 U.S.C. 9839(a).

The trial court granted defendant's motion for summary disposition to the extent that plaintiff sought 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

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 N.W.2d 157 (1996), and Forster v. Delton School Dist., 176 Mich.App. 582, 585, 440 N.W.2d 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 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 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

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 U.S.C. 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 U.S.C. 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 statutory directives.21 The secretary is directed under 42 U.S.C. 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:

Similarly, Head Start regulation 45 C.F.R. 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.

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 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 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.

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 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 U.S. 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 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 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 forth a test for determining whether a private remedy is implicit in a statute that does not expressly provide such a remedy:

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 & Co., 442 U.S. 560, 99 S.Ct. 247940 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

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 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 U.S.C. 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 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 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:

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:

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 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 U.S.C. 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 U.S.C. 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 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.

CLIFFORD W. TAYLOR, MAURA D. CORRIGAN and STEPHEN J. MARKMAN, JJ., concur.

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 U.S.C. 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 U.S.C. 9839(a) provides, in pertinent part:

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 883.

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:

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 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 WL 760832, *4, 1995 U.S. Dist LEXIS 19049, *10 (N.D.N.Y., 1995), the court premised its analysis as follows:

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., ___ U.S. ___, ___, 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:

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 U.S.C. 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 U.S. 287, 293, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the four Cort factors

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

MARILYN J. 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 U.S.C. 9831 et seq. However, I disagree with its conclusion that the act, at 42 U.S.C. 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 N.W.2d 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, 631 N.W.2d 733.

The primary jurisdiction doctrine underscores the notion that administrative agencies possess specialized and expert knowledge to address the matters they regulate. Id. at 198, 631 N.W.2d 733. 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 N.W.2d 805 (1982). This case does not concern such matters.

Moreover, resolution of this case does not require specialized knowledge. Instead, it involves a straightforward 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, 631 N.W.2d 733.

Defendant complains that, under the Chevron1 doctrine, the meaning that HHS has given to "reasonable public access" in various letters interpreting 42 U.S.C. 9839(a) should be definitive. Chevron directs that considerable weight be accorded an agency's construction of a statutory scheme. Chevron, supra at 844, 104 S.Ct. 2778. 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 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). 42 U.S.C. 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 U.S.C. 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 U.S. 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 U.S. 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 U.S. 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 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, 95 S.Ct. 2080. The key to this inquiry is determining the legislative intent in enacting the statute. Merrill Lynch, supra at 377-378, 102 S.Ct. 1825.

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:

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 Ross, supra at 569, 99 S.Ct. 2479. It required that brokers keep certain documents for government inspection and focused on governmental rights of inspection. Id. at 569-570, 99 S.Ct. 2479. Because the statute did not imply a private right of action, the Court found that none existed. Id. at 571, 99 S.Ct. 2479.

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 U.S. 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, 121 S.Ct. 1511. In that case, it needed to go no further in its inquiry. Id. at 288, 121 S.Ct. 1511. 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, 121 S.Ct. 1511.

That statute neither conferred rights on private parties nor proscribed conduct as unlawful. Instead, it empowered governmental agencies to enforce regulations. Id. at 289, 121 S.Ct. 1511. The Court concluded that, by expressly providing one method of enforcement, Congress signaled that it intended to preclude other methods.5 Id. at 290, 121 S.Ct. 1511.

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 U.S.C. 9839

Despite espousing a textualist approach, the majority never deals with the actual language of 42 U.S.C. 9839(a). Instead, it focuses on tangentially related federal district court cases and the overall purpose of the Head Start Act.

Let us review the actual language in question. 42 U.S.C. 9839(a) provides in part:

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.

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, 121 S.Ct. 1511; Touche Ross, supra at 569-570, 99 S.Ct. 2479. 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 (E.D.Va., 2001), and Hodder v. Schoharie Co Child Dev. Council, Inc., 1995 WL 760832, 1995 U.S. Dist LEXIS 19049 (N.D.N.Y., 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.

Neither dealt with 42 U.S.C. 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 U.S.C. 9836a(a)(1) and (2). Johnson, supra at 336-337.

Hodder concerned claims of employees terminated from Head Start agencies. Hodder, supra, at *6, at *16. It dealt with 42 U.S.C. 9849(b). Hodder, supra, at *4, at *12. 42 U.S.C. 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 U.S.C. 9839(a) does. Given that Hodder and Johnson do not deal with 42 U.S.C. 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 U.S.C. 9839(a).

42 U.S.C. 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 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 U.S.C. 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 U.S.C. 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, 95 S.Ct. 2080.

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 U.S.C. 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, 95 S.Ct. 2080. As the majority states, the overall purpose of the Head Start Act is to promote school readiness. 42 U.S.C. 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 U.S.C. 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 of 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 U.S.C. 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 U.S.C. 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 U.S. (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 presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise. Franklin v. Gwinnett Co. Pub. Schools, 503 U.S. 60, 66, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

In this case, a private right of action exists under 42 U.S.C. 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 U.S.C. 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.

MICHAEL F. CAVANAGH, J., agrees.