Summary
finding that the Eleventh Amendment “bars all claims against [Alabama DHR] in federal court”
Summary of this case from Lowe v. JenkinsOpinion
Civil Action No. 01-T-453-N.
June 14, 2001
Kid's Care, Inc. represented by Josh O. Kelly, III Huntsville, AL, Plaintiff
Rainbow Daycare Center, Inc., individually and on behalf of all others similarly situated, and on behalf of all infants and children who are receiving or should be receiving childcare services within the State of Alabama represented by Josh O. Kelly, III Plaintiff
State of Alabama Department of Human Resources represented by James Edward Long, Montgomery, AL, Defendant
Bill Fuller in his official capacity as Commissioner of The Alabama Department of Human Resources represented by James Edward Long, Defendant
Margaret Bonham in her official capacity as Director, Family Services Partnership, State of Alabama Department of Human Resources represented by James Edward Long Defendant
Frances Arnold in her official capacity as Assistant Director, Office of Childcare, Family Services Partnership, State of Alabama Department of Human Resources represented by James Edward Long Defendant
OPINION
Plaintiffs Kid's Care, Inc., Rainbow Daycare Center, Inc., and Super Kids, Inc., all Alabama daycare providers, have brought suit on behalf of themselves and others, naming as defendants the State of Alabama Department of Human Resources ("DHR") and DHR officials Bill Fuller, Margaret Bonham, and Frances Arnold. Alleging a great host and variety of federal and state-law claims and seeking declaratory and injunctive relief, damages, and attorneys' fees, the plaintiffs filed a complaint in state court on March 16, 2001, and the defendants removed the action to federal court on April 13, based on federal question jurisdiction. See 28 U.S.C.A. §§ 1331, 1441. This case is now before the court on the defendants' motions to dismiss. For the reasons given below, the court will dismiss plaintiffs' federal claims and will remand their state-law claims back to state court.
I. STANDARDS FOR A RULE 12(b)(6) MOTION TO DISMISS
In considering the defendants' motions to dismiss, the court must accept the plaintiffs' allegations as true, see Fed.R.Civ.P. 12(b), Andreu v. Sapp, 919 F. 2d 637, 639 (11th Cir. 1990), and must construe their complaint liberally in their favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974). A claim may not be dismissed unless the plaintiffs can prove no set of facts that would support the requested relief. See Scheuer, 416 U.S. at 236, 94 S. Ct. at 1686; Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).
II. SOVEREIGN-IMMUNITY LIMITS ON THE PLAINTIFFS' CLAIMS
The plaintiffs have named DHR as a defendant but, because DHR is a state agency, the eleventh amendment to the United States Constitution bars all claims against the agency in federal court. "[A] suit in which the State or one of its agencies or departments is named as defendant is proscribed by the Eleventh Amendment." Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984). "This jurisdictional bar applies regardless of the nature of the relief sought." Id. This bar also applies regardless of whether the claim is based on state or federal law. See id. at 104-106, 104 S. Ct. at 910-911.The plaintiffs also sue three DHR officials (Fuller, Bonham and Arnold) in their official capacities as DHR personnel for damages and injunctive and declaratory relief. Sovereign immunity bars the plaintiffs' claim for damages. Official-capacity lawsuits are, "in all respects other than name, . . . treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166,
105 S. Ct. 3099, 3105 (1985). Because damages are recovered from the government entity itself and not the official's personal assets, the real party in interest is the entity and not the official personally. See id. The eleventh amendment to the Constitution bars damage actions against States in federal court absent a waiver by the State or valid congressional action abrogating immunity to allow suit, see id. at 169, 105 S. Ct. at 3107, and this bar extends to suits against state officers and employees sued for damages in their official capacities, see id.; Jackson v. Georgia Dept. of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). Because there is no waiver or valid abrogation of immunity here, the plaintiffs may not recover any damages from Fuller, Bonham and Arnold in their official capacities.
The plaintiffs also seek injunctive and declaratory relief against the individual defendants. Although "the Eleventh Amendment insulates states from suit in federal court," Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995), it "does not insulate state officials acting in their official capacities from suit in federal court, at least to the extent the complainant seeks prospective injunctive relief."Id. Therefore, the eleventh amendment poses no general bar to prospective equitable relief against the individual defendants (so long as such relief does not constitute an end-run around the rule against recovery of damages from the State).
III. DISCUSSION OF FEDERAL CLAIMS
Because the court also finds that all the plaintiffs' federal claims should be dismissed for either failure to state a claim or for lack of standing, the court will now run through the plaintiffs' federal claims while sidestepping consideration of their state-law claims.
A. Constitutional Challenges to the Religious Exemption in Alabama's Law Regulating Daycare
The plaintiffs, who are all daycare providers subject to Alabama's general laws regulating daycare, claim that their equal-protection, procedural and substantive due-process, and property rights are violated by an Alabama statute that exempts religiously affiliated entities from compliance with certain licensing and other requirements generally imposed on daycare providers. The plaintiffs argue that they have standing for their constitutional challenges to the exemption because, as they say, the law's favorable treatment of religious daycare providers puts secular providers at a competitive disadvantage and because more of the per-child government subsidies awarded to religious daycare providers would go to secular providers in the absence of the exemption.
(1) Equal-Protection Challenge
The standards for evaluating an equal-protection challenge to legislation are highly deferential to the legislating governmental entities when the challenged distinction is not a suspect classification and when the distinction is not alleged to impair a fundamental right. See, e.g., TRM, Inc. v. United States, 52 F.3d 941, 945-46 (11th Cir. 1995); Foto USA, Inc. v. Bd. of Regents of the Univ. System of Fla., 141 F.3d 1032, 1038 (11th Cir. 1998) ("In the local economic sphere, it is only invidious discrimination, the wholly arbitrary act, that cannot stand consistently with the Fourteenth Amendment."). Under rationality review, state regulations will withstand an equal-protection challenge if the court can conceive of any reasonable basis for them and any rational relation between the posited ends and the means; in hypothesizing purposes for legislation, a court should think broadly, and, if necessary, it should go beyond the facts in the record. See, e.g., Panama City Medical Diagnostic Ltd., v. Williams, 13 F.3d 1541, 1545-47 (11th Cir. 1994); TRM, Inc., 52 F. 3d at 945-946. If the court can articulate rational reasons for the challenged distinctions in the law, it need not go further to determine whether such reasons actually motivated the legislature. See id.
According to the plaintiffs, the religious exemption is a form of "arbitrary and capricious" discrimination among similarly situated daycare providers that lacks any rational basis in violation of the Equal Protection Clause. The court, however, finds that the plaintiffs' equal-protection objection to the differential treatment of religious entities fails to state a claim and must be dismissed.
In addition to this invocation of rational-basis review, the plaintiffs also assert at one point, without explanation, that they are a "suspect class" for purposes of the equal protection clause. The plaintiffs have not claimed they are being discriminated against because they are secular rather than religious, and they have not otherwise explained their basis for invoking suspect-class status. Because the court cannot guess their intended argument, the court's equal-protection discussion is limited to rationality review.
First, in order for their equal-protection claim to get even off the ground, the plaintiffs must have a colorable basis for representing that they are similarly situated to the class of persons accorded different treatment. But non-religious entities are not similarly situated to religious entities as a matter of constitutional law. The United States Constitution itself 'discriminates' on the basis of religion in that the free-exercise and establishment clauses of the first amendment put religious and secular entities on a different footing in their relations to government.
Second, a legislature acts with a rational and permissible purpose when it exempts all religious organizations from certain laws of general applicability in order to minimize government interference with the free exercise of religion. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 107 S. Ct. 2862 (1987) (inclusion of the secular nonprofit activities of a religious organization within the coverage of religious exemption under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, from its general prohibition against religious discrimination in employment serves a legitimate purpose and does not violate the establishment clause). Other courts which have heard equal-protection challenges to religious exemptions from generally applicable laws, including daycare regulation such as that at issue in the present case, have rejected these claims.See Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993) (religious exemption from daycare zoning ordinance does not violate the establishment clause or the equal protection clause); Forte v. Coler, 725 F. Supp. 488 (M.D. Fla. 1989) (judgment on the pleadings rendered because the challenged religious exemption from compliance with state daycare licensing requirements does not violate the establishment clause or the equal protection clause); Pre-School Owners Assoc. of Illinois, Inc. v. Dept. of Children and Family Services, 119 Ill. 2d 268, 518 N.E. 2d 1018 (Ill. 1988) (various exemptions from daycare regulation, including a religious exemption, do not violate the equal protection clause, or the religion clauses of the first amendment, and are not unconstitutionally vague); see also Forest Hills Early Learning Center v. Grace Baptist Church, 846 F. 2d 260 (4th Cir. 1988) (religious exemption from licensing requirements for church-run childcare centers does not violate the establishment clause). Thus, it is well-settled that the possible economic inequalities that might result from religious exemptions such as daycare licensing exemptions generally do not amount to an equal-protection violation.
The court does not, of course, mean to say that such religious exemptions from generally applicable laws always warrant this measure of deference; the court addresses only a suit such as the present one where there is an economic challenge to socioeconomic regulation and no fundamental right or suspect classification at issue.
This court finds that, even if the plaintiffs were properly treated as similarly situated to religiously affiliated daycare providers, the State of Alabama's interests in limiting church-state entanglement and in respecting the free exercise of religion could provide a rational basis for the State's exemption of religiously associated entities from its daycare regulations and licensing requirements. The plaintiffs cannot prove any set of facts that would change this legal conclusion; accordingly, the equal-protection claim is due to be dismissed.
(2) Procedural Due-Process and Takings-Clause Challenges
The plaintiffs also claim that the religious exemption violates their constitutional rights by "taking," without due process of law, their "'property,' (i.e. additional State and Federal subsidies to which they would be entitled and/or additional revenue generating children." The plaintiffs complain that, "The 'exempt' facilities are able to take these children and receive the subsidies without meeting the same rigorous standards as the licensed facilities."In order to make out a property-takings claim or a property-based procedural due-process claim, the plaintiffs need to offer some colorable allegation that they have a property interest at issue. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972) ("Property interests, of course, are not created by the Constitution . . [but] stem from an independent source such as state law-rules. . . ."); American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 59, 119 S. Ct. 977, 989 (1999) ("In every due process challenge, the first inquiry is whether the plaintiff has been deprived of a protected interest in property or liberty"). However, on any set of facts this court can imagine, the plaintiffs' asserted property interest in the additional state subsidies or private revenue they might receive within a hypothetical regulatory regime without religious exemptions cannot be their "property" for purposes of the due process or takings clauses. Even if, for the sake of argument, the plaintiffs were entitled to operate in a regulatory world without religious exemptions, their hope and expectancy in the extra funds that might later be determined to be due them in a post-exemption world still would not amount to a present constitutionally cognizable property interest. See Roth, 408 U.S. at 577, 92 S. Ct. at 2709 ("To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."); American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977 (1999) (claimants for insurance reimbursement under the Pennsylvania State Workers' Insurance Fund — despite the fact they have an entitlement to insurance coverage for reasonable and necessary healthcare — have no property claim to any medical treatment or compensation until the time when a specific determination has been made that a particular treatment satisfies the reasonable and necessary standards); Marine One, Inc. v. Manatee Co., 877 F. 2d 892 (11th Cir. 1989) (rescission of a building permit was not a taking and not violative of due process because plaintiff had no vested property interest in the building permit). Having failed to show that they have a colorable property interest related to the religious exemption, the plaintiffs' takings and procedural due-process challenges to the religious exemption are due to be dismissed for failure to state a claim for which relief can be granted.
(3) Substantive Due-Process Challenge
The plaintiffs also claim that "it is unconstitutional and illegal for exempt centers to merely have to certify to DHR in writing that they meet the definition required for exemptions." DHR, according to the plaintiffs, "is under a legal duty to make an individual determination of actual exemption status before allowing a facility to operate under such exemptions. . . . Said provision lacks substantive due process in that the method for an exempt facility to certify exempt status is unconstitutionally vague and void of standards and procedures."
In the Eleventh Circuit, "'The standard for evaluating substantive due process challenges to social and economic legislation is virtually identical to the 'rational relationship' test for evaluating equal protection claims.'" TRM, Inc., 52 F.3d at 945 (internal citations omitted). State regulations should be upheld against a substantive due-process challenge if there is any legitimate purpose which the enacting governmental body could have been pursuing and any rational basis for that body to believe the regulations would further the hypothesized purpose. See Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir. 1995). Moreover, a plaintiff bringing a substantive due-process claim based on economic injury must allege an interest that has been egregiously impaired. See e.g., McKinney v. Pate, 20 F.3d 1550, 1556 1556 n. 7 (11th Cir. 1994) (substantive due process is implicated when fundamental rights implicit in the concept of ordered liberty are threatened; alternatively, a substantive due process claim may be stated if the questioned governmental action "'shocks the conscience' of federal judges") (citations omitted); Eastern Enterprises v. Apfel, 524 U.S. 498, 550, 118 S. Ct. 2131, 2159 (1998) (Kennedy, J., concurring) (summarizing previous Supreme Court caselaw to say that "under the deferential standard of review applied in substantive due process challenges to economic legislation[,] . . . [s]tatutes may be invalidated on due process grounds only under the most egregious of circumstances").
The plaintiffs' substantive due-process objections to Alabama's daycare licensing regime do not begin to approach the minimum allegations necessary to make out a prima-facie substantive due-process claim. The economic injury to the plaintiffs from DHR's alleged failure to employ a more rigorous certification process for religiously exempt providers is not, on any set of facts, "egregious." Further, the court can hypothesize many conceivable and rationally tailored legitimate reasons why the State of Alabama's certification process might rely on self-representations rather than more rigorous and independent scrutiny. For example, the State might want to avoid the higher financial expense that would result if it conducted independent evaluations of providers, or, it might find it more efficient to monitor the bad-faith conduct of exempted day-care providers through means other than its licensing decisions. Or, the State might have fashioned its certification process so as to keep the State out of the business of defining what counts as religion and to limit the possible intrusions on the free exercise of religion that could result if religious certification depended upon bureaucratic discretion. Thus, on any set of facts, the plaintiffs' substantive due-process objection to Alabama's administration of its religious exemption is due to be dismissed.
The court's consideration of this claim should not be understood to mean that the court has decided the logically prior question of whether the plaintiffs have standing for the claim.
B. Equal-Protection and Substantive and Procedural Due-Process Objections to Alabama's Daycare Licensing Laws
In addition to their objections to the religious exemption, the plaintiffs claim that, "based on information and belief," various other licensing laws violate the equal protection clause because DHR does not apply the "same licensing standards and criteria evenly to all applicants for daycare licenses across the State of Alabama." Not only the religiously exempt providers but also daycare centers such as those operated at the YMCA, Boys and Girls Clubs, government facilities, and educational facilities, are believed to operate under special licensing standards. The plaintiffs also claim that these differential licensing requirements violate the plaintiffs' right to substantive due process because they are "vague and void of standards and procedures by which the Department can reasonably determine that applicants meet the standards uniformly," and they claim these requirements violate procedural due process because the subjective opinions of DHR personnel may determine whether some licenses are granted or denied.Assuming only for the sake of the argument that plaintiffs have standing for these claims, the plaintiffs' objections to Alabama's regulation of entities such as the YMCA will not, on any set of facts, be able to satisfy the deferential standards governing judicial review of socioeconomic regulation that is challenged on equal-protection and substantive due-process grounds. The YMCA, Boys and Girls Clubs, government facilities, and educational facilities are all entities that serve additional functions beyond those of a simple daycare provider. These entities are all likely subject to regulatory regimes that do not govern simple daycare providers (for example, laws regulating athletic facilities or laws governing activities on government property). The State of Alabama could conceivably and rationally find that it is more appropriate to regulate daycare provision by such entities through a different set of rules, procedures, and agency personnel from those that are applicable to simple daycare providers. Alternatively, the State might rationally believe that such institutional and governmental providers are typically more institutionally accountable and more subject to public scrutiny than simple daycare providers are, thus justifying a less regulatory oversight by DHR. For purposes of both equal protection and substantive due process then, these legislative distinctions among types of daycare providers must be upheld against the plaintiffs' objections.
The plaintiffs also claim that the State's treatment of other types of daycare providers violates procedural due process because the subjective opinions of DHR personnel may determine whether some licenses are granted or denied. This claim fails because the plaintiffs have not alleged that they have been deprived of a relevant property or liberty interest. See American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 59, 119 S. Ct. 977, 989 (1999). The plaintiffs are not alleging, for example, that they lost out on a license because of DHR's subjective decision making; rather, they are complaining about the subjective treatment of other types of providers such as the YMCA. And, as noted above in the discussion of the claims against the religious exemption, the speculative competitive benefits the plaintiffs might receive if institutional and governmental daycare providers were subject to the same standards as other providers cannot arise to the level of a property interest. See Roth, 408 U.S. at 577, 92 S. Ct. at 2709. Thus, the plaintiffs' procedural due-process objection to the State's different treatment of different types of daycare providers is also due to be dismissed.
C. Substantive and Procedural Due-Process Attacks on 1975 Ala. Code § 38-7-8
Section 38-7-8 of the 1975 Code of Alabama ("License to operate or conduct child-care facility — Revocation or refusal to renew license") provides a list of reasons for which DHR may revoke or refuse to issue or renew a child-care license. The plaintiffs claim that this section violates their substantive and procedural due-process rights. However, once again, the plaintiffs have alleged no relevant property or liberty interest. They have not been refused a license under § 38-7-8 (in fact, they have not been refused a license on any ground). The plaintiffs have not complained of any DHR behavior that is allegedly authorized by or wrongfully unconstrained by § 38-7-8 that is intrusive of their liberty or that is otherwise injurious to them. The plaintiffs merely complain about aspects of § 38-7-8 that might conceivably affect them in the future. They complain that § 38-7-8 gives DHR too much standardless discretion in its licensing decisions, and that it fails to guide the agency's discretion when it authorizes agency requirements that applicants provide records and allow inspections and agency requirements that providers "maintain financial resources adequate for the satisfactory case of children." (The plaintiffs neglect to mention that the neighboring code section, § 38-7-9, provides notice-and-hearing opportunities and an appeals process for parties aggrieved by decisions made pursuant to § 38-7-8.) In sum, the plaintiffs have alleged no deprivation attributable to § 38-7-8 of a liberty or property interest nor any injury of any sort, much less the "egregious" sort required for a successful substantive due-process challenge. Thus, even if the plaintiffs could (improbably) show standing for these claims, they would be due to be dismissed for failure to state a claim.
See White's Place, Inc. v. Glover, 222 F.3d 1327, 1329 (11th Cir. 2000) (outside the more lenient first amendment context, the traditional elements of standing require that a plaintiff show "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision").
D. Due-Process and Equal-Protection Attacks on 1975 Ala. Code § 38-7-12's Prohibition Against Advertisements by Unlicensed Providers
The plaintiffs raise due-process and equal-protection objections to § 38-7-12, which provides that "No person, unless licensed or approved or holding a permit as a childcare facility, may cause to be published any advertisement soliciting a child or children for care or placement or offering a child or children for care or placement." The plaintiffs argue that this section violates due process because "There is no rational basis for prohibiting a potential business to advertise its eventual and anticipated opening," and they argue the section violates equal protection because it sets up a dual standard between licensed and not-yet-licensed daycare providers. The court observes that it is not obvious that the language of § 38-7-12 does, in fact, prohibit the plaintiffs from publishing an advertisement about an anticipated future opening (if, for example, the advertisement clarified that the plaintiffs could not now solicit children for placement). But, assuming the law does restrict the plaintiffs in the manner of which they complain, the plaintiffs' constitutional claims still suffer from the same problems that plague the due-process and equal-protection claims discussed above.The plaintiffs have not claimed that § 38-7-12 has deprived them of a property or liberty interest; they have not even attacked the law on first amendment grounds. The plaintiffs have not alleged that the law is implemented without fair procedures. And, for purposes of both substantive due process and equal protection, it is possible to postulate a rational basis for the law. Given the informal nature of many daycare providers (for example, services provided out of a home), it may be difficult for the State to detect and monitor the activities of unlicensed providers. A ban on advertising by unlicensed providers might be the State's only effective means of limiting unlicensed daycare provision. The State could rationally believe that, on balance, the goal of limiting unlicensed daycare provision is served by the advertising ban even if it is overinclusive (that is, even though it has the unwanted cost of hindering anticipatory advertising by law-abiding entities such as the plaintiffs who would not begin their daycare services unless and until they had received a license). While the plaintiffs' challenge to the advertising ban might warrant more prolonged consideration if it were a first-amendment attack, they have brought only due-process and equal-protection challenges subject to deferential review; these must be dismissed for failure to state a claim.
E. Equal-Protection and Substantive and Procedural Due-Process Challenges to 1975 Ala. Code § 38-7-16's Creation of Misdemeanor Crimes
The plaintiffs complain that their equal-protection and substantive and procedural due-process rights are violated by § 38-7-16. This section makes it a misdemeanor crime punishable by a fine ranging between $100 and $1000 and imprisonment in a county jail for not longer than one year for a person or entity to operate an unlicensed childcare facility, to make materially false statements in order to obtain a license, to fail to keep the records and make the reports required by state childcare licensing law, to advertise any service not authorized by a license, to publish any advertisement in violation of state childcare licensing law, to receive a child in violation of the an adoption regulation, and to violate any other provision of childcare licensing law or any reasonable rule or regulation adopted and published by DHR for the enforcement of the provisions of state childcare licensing law.
The plaintiffs maintain that many of the provisions of § 38-7-16 are unconstitutional because they are "unconstitutionally vague, broad and void of standards and procedures by which a childcare facility could know if it were potentially guilty of criminal conduct." The plaintiffs' objections to § 38-7-16 are themselves vague and broad. For example, the plaintiffs allege that § 38-7-16 violates equal protection because "Whether or not a potential facility might be guilty of criminal acts would be up to the subjective opinion of various independent DHR employees." The court has difficulty understanding this claim because there is nothing in § 38-7-16 to suggest that individual DHR employees can take over the functions of prosecutor and judge or jury. In fact, a neighboring provision, § 38-7-17, states that enforcement of such laws is the duty of the district attorney. Section 38-7-16(7) does criminalize violation of "any reasonable rule or regulation adopted and published by the department for the enforcement of the provisions of this chapter". But this provision only empowers the agency (not an individual DHR employee in his or her subjective judgment) to make rules that may be backed by a criminal sanction but only through independent processes of prosecution and conviction. See also 1975 Ala. Code § 38-7-10 ("report to attorney general for prosecution"). Any rules promulgated pursuant to § 38-7-16(7) must be "adopted and published," thus giving the plaintiffs written advance notice of a defined rule enforceable by a district attorney, a process that seems to provide no basis for the plaintiffs' allegation that, in violation of equal protection, different persons will be prosecuted differently at the subjective whim of DHR employees.
However, the court need not evaluate the plaintiffs' constitutional objections to § 38-7-16 because the plaintiffs have manifestly failed to satisfy the standing requirements for these claims. The plaintiffs have failed to allege they have suffered any specific injuries resulting from § 38-7-1. "[P]re-enforcement review [of a challenged criminal statute] is the exception." See American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas Co., 221 F.3d 1211 (11th Cir. 2000). It is true that "when the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.'" Id. at 1214 (internal citations omitted). But to establish standing to bring such an as-applied challenge to the statute, the plaintiffs "need to demonstrate that a 'credible threat of an injury exists,' not just a speculative threat which would be insufficient for Article III purposes. . . . [For example, this standard can be met by showing that] 'either (1) plaintiff was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.'" Id. (internal citations omitted); see also Wyzykowski v. Dept. of Corrections, 226 F.3d 1213 (11th Cir. 2000) ("constitutional issues affecting legislation will not be determined . . . at the instance of one who fails to show that he is injured by the statute's operation") (internal citations omitted); Jones v. Wade, 479 F. 2d 1176, 1179 (5th Cir. 1973).
Far from meeting these standards, the plaintiffs in this case have offered only highly general allegations about the harm caused to them by this statute; consequently, they fail to meet the standing requirements for an as-applied challenge to § 38-7-16. The plaintiffs cannot avoid this standing problem by making a facial attack on the law because, even though § 38-7-16 might raise constitutional concerns as applied to particular circumstances, it is apparent that the statute is not "unconstitutional in all its applications." See Williams v. Pryor, 240 F.3d 944, 953 (11th Cir. 2001). Accordingly, the plaintiffs' constitutional challenges to § 38-7-16 are due to be dismissed for lack of standing.
F. Equal-protection, Procedural and Substantive Due-Process, and Statutory Challenges to DHR's Implementation of a Law Requiring Criminal Background ChecksThe plaintiffs challenge the State's implementation of a law that, according to them, requires criminal history background checks on daycare licensees and staff and applicants for such positions. Although this challenge is buried among the great number of vague claims in the plaintiffs' pleadings, it is apparently among the most central of their grievances because the plaintiffs have moved for preliminary injunctive and declaratory relief based on this challenge. The plaintiffs allege that:
"The problem . . . is not with the act itself. The problem is due to the fact that the Department of Human Resources failed to put into place a system or mechanism by which plaintiffs/licensees could apply for and undergo such a background check. Local DHR offices do not have the appropriate fingerprint cards or applications. DHR cannot tell the plaintiffs where they should go to get fingerprinted. DHR has failed to provide the plaintiffs with the appropriate paperwork and applications to request the background checks. Furthermore, and most critically, DHR has failed to contract with the Alabama Department of Public Safety and set up a procedure by which the criminal background checks can actually be done through the Alabama Bureau of Investigation. Thus, DHR has again required daycare facilities to jump through hoops without providing the hoops. The plaintiffs cannot comply with this law through no fault of their own."
The plaintiffs allege, for example, that plaintiff Super Kids, Inc. is suffering substantial financial injury because its efforts to get a license for the new daycare center that it has built are stalled, not because the facility has failed any licensing requirements or because it is unwilling to provide any background information but rather simply because the State has yet to implement any means by which the background-check requirements may be satisfied.
To the extent this complaint is directed against the DHR, it is barred by sovereign immunity. To the extent it is directed at DHR officials Fuller, Bonham, and Arnold, regardless of the merits of the plaintiffs' problems with the criminal-background checks, the court finds that this dispute belongs in state court.
The plaintiffs have put forth two efforts to make a federal case out of the dispute: First, they have cited their now familiar equal-protection and procedural and substantive due-process objections to the law's implementation. The equal-protection claim is based upon an allegation that some counties in the State have set up procedures and standards so that daycare license applicants in those counties can get the needed background checks whereas the plaintiffs are operating and seeking to operate in counties that have not set up the procedures. Under the deferential equal-protection standards that apply, this claim easily fails because DHR officials could rationally choose to decentralize implementation authority to the county level. Such decentralization might serve a legitimate interest in local control and any resulting inequalities in practices and procedures among different counties might be rationally thought to have more benefits than costs (for example, innovative experiments and efficient adaptation to unique local conditions). For the same reasons, the plaintiffs' substantive due-process claim fails the Eleventh Circuit's "virtually identical" standard for substantive due-process challenges to social and economic legislation. See TRM, Inc., 52 F.3d at 945. Accordingly, the plaintiffs' equal-protection and substantive due-process challenges to the criminal background check implementation are due to be dismissed.
The court does not assume as easily that the plaintiffs will not, under any set of facts, be able to show that they have property interests at stake for purposes of procedural due process. However, even if the plaintiffs could show that they have been deprived of a property interest by a background-check requirement that is impossible to meet, they cannot show a completed procedural due-process violation "'unless and until the State fails to provide due process.'" McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (citations omitted). The plaintiffs have failed to allege that state procedures for a deprivation are inadequate either as a matter of law or actual practice. And, in fact, a portion of state law not cited by the plaintiffs provides the following procedural redress:
"In the event a party or an applicant for a license or a licensee is denied a license or a renewal of a license or has a license suspended or revoked for the operation of a child-care facility required by this chapter to be licensed by the department, or in the event an application for such a license or renewal of a license is not acted upon with reasonable promptness, or in the event an approval required by this chapter to be issued by the department is denied or revoked or unduly delayed, any aggrieved party may appeal to the department for a fair hearing of his case. . . . Any party aggrieved by a final decision or action of the department . . . is entitled to a review of such final decision or action by filing a complaint with the circuit court in the county in which the child-care facility is located or in the Circuit Court of Montgomery County, Alabama."
1971 Ala. Code § 38-7-9 (emphasis added). Because the plaintiffs have failed to allege that these state remedies are inadequate for purposes of federal procedural due process, the plaintiffs' procedural due-process claim is due to be dismissed for failure to state a claim.
The plaintiffs make a second effort to create federal claims out of their background-check allegations by citing various federal statutes vaguely asserted to have some relationship to child-care subsidies or the background-check requirement. Most of these statutes have at best an attenuated relationship to the plaintiffs' claims and cannot by any stretch of the imagination be construed to govern those claims.
The plaintiffs do, however, cite a federal statute that does bear a close relationship to Alabama's criminal background-check requirement. 42 U.S.C.A. § 5119(a) provides, among other things, that a State "may have in effect procedures (established by Statue statute or regulation)" for participating in a nationwide background check conducted in part by the Federal Bureau of Investigations of those who care for children, the elderly, or the disabled. (Emphasis added). It might be argued that, even though this federal law does not mandate that a State set up any background check requirement or that it participate in the desired nationwide system in the first instance, once a State does choose to participate, § 5119(a) then imposes some binding requirements on States and confers some benefits and perhaps federally enforceable rights on those providers which are subject to background checks. Assuming for the sake of argument that this is the case, however, the court does not see any colorable arguments that § 5119a provides the plaintiffs with any redress for their particular problems with the background-check process.
Some language in § 5119a(a)(2) on first glance sounds promising for the plaintiffs' argument that federal law supports their claims: "The authorized agency . . . shall make reasonable efforts to respond to the inquiry within 15 business days." However, it is clear from the rest of § 5119a, as well as the Alabama statute that the "authorized agency" required to "make reasonable efforts to respond to the inquiry within 15 business days," refers to each State's Department of Public Safety, whereas an entity such as DHR is classified as a "qualified entity" that may demand that a childcare provider get a background check. Thus, if this section gives anyone a duty to make a reasonable effort within 15 days, it is the Alabama Department of Public Safety, that is, an entity which is not a party to this suit.
The only other arguable source of judicially enforceable rights, § 5119a(b)(2), does provide a list of rights or benefits to which "each provider who is the subject of a background check is entitled." All of these, however, relate to the uses of a background report after such a report has been made and do not speak to the plaintiffs' concerns.
Thus, the plaintiffs have failed to point to any federal statute that provides them a cause of action.
G. Due-Process Claims for Underpayment of Childcare Subsidies
The plaintiffs claim that the State is required by law to give them child-care subsidies at current market rates but has been instead underpaying them at 1997 market rates. If the law and the facts are as the plaintiffs allege, it is possible they have a property interest for purposes of due process. However, the plaintiffs have not alleged that the available state administrative and judicial remedies are inadequate for purposes of procedural due process. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) Accordingly, these claims are due to be dismissed for failure to state a claim.
H. Other Claims
The plaintiffs bring other allegations that they vaguely assert involve violations of the United States Constitution as well as state law. For example, they argue that, in various ways, Alabama law and DHR have delegated authority to the wrong branch of state government. But, since the federal constitution imposes no relevant constraints on the structure of state government that this court can imagine, this nondelegation argument is, in substance, a purely state-law matter. The state court is the appropriate body to determine which if any of such of the plaintiffs' remaining state-law claims should survive the defendants' motion to dismiss.
IV. DISCUSSION OF STATE-LAW CLAIMS
28 U.S.C.A. § 1367(c)(3) provides that, "The district courts may decline to exercise supplemental jurisdiction over a claim [if] . . . the district court has dismissed all claims over which it has original jurisdiction." Because the federal claims over which this court had original jurisdiction are due to be dismissed, the court believes that the remaining state-law claims against the defendants should be remanded to state court. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S. Ct. 614 (1988). DONE, this the 14th day of June, 2001.