Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

OFFICE PLANNING GROUP, INC., 

FILED JUNE 8, 2005 

Plaintiffs-Appellee, 

v No. 125448 

BARAGA-HOUGHTON-KEWEENAW 

CHILD DEVELOPMENT BOARD, 

Defendant-Appellant. 

_______________________________ 

BEFORE THE ENTIRE BENCH 

YOUNG, J. 

Plaintiff is a disappointed bidder that seeks 

disclosure from defendant of bid documents under 42 USC 

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

 that 

requires Head Start agencies to provide for “reasonable 

public access” to information. Defendant Head Start 

agency contends that the act does not create a private 

cause of action to enforce its provisions. We hold that 

the Head Start Act does not contemplate a private cause of 

action seeking disclosure of the contested bid documents 

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

1 42 USC 9831 et seq. 
 

 

the Court of Appeals and enter judgment in favor of 

defendant. 

I. FACTS AND PROCEDURAL HISTORY 

Defendant, Baraga-Houghton-Keweenaw Child Development 

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

designated as a Head Start2

 agency under 42 USC 9836(a).3 

Defendant operates Head Start programs in Baraga, 

Houghton, and Keweenaw counties. In January 2001, 

defendant solicited bids for office supplies and 

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

submitted a bid. Defendant conducted an open meeting at 

which its building committee reviewed the bids and made a 

recommendation to its board of directors. Defendant 

2 See section III(A) of this opinion. 

3 42 USC 9836(a) provides: 

The Secretary [of Health and Human Services]

is authorized to designate as a Head Start agency

any local public or private nonprofit or forprofit agency, within a community, which (1) has

the power and authority to carry out the purposes

of this subchapter [42 USC 9831 et seq.] and

perform the functions set forth in section 642

[42 USC 9837] within a community; and (2) is

determined by the Secretary (in consultation with

the chief executive officer of the State 

involved, if such State expends non-Federal funds

to carry out Head Start programs) to be capable

of planning, conducting, administering, and 

evaluating, either directly or by other 

arrangements, a Head Start program. 

2
 
 

accepted the lowest bid at the open meeting. Rodney 

Liimatainen, defendant’s executive director, notified 

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

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

Hamm, suspicious that the lower bidders had offered 

lesser-quality merchandise, requested copies of all the 

bids submitted. Liimatainen informed Hamm that the 

details of the bids were unavailable for inspection by the 

public because the other bidders did not want the 

information disseminated. Liimatainen acknowledged, 

however, that there might be small discrepancies in 

quality, manufacturer, and type of product among the bids 

submitted. In an attempt to compel defendant to disclose 

copies of the bids, Hamm then submitted written requests 

to defendant under the Michigan Freedom of Information Act 

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

it was a private corporation that was not subject to the 

FOIA. Plaintiff also requested copies of the submitted 

bids from the Department of Health and Human Services 

(HHS), the federal agency responsible for administering 

the Head Start Act. 

4 MCL 15.231 et seq. 

3
 
 

 

In April 2001, plaintiff filed an action under the 

FOIA5 demanding a complete copy of each bid. Plaintiff 

later filed an amended complaint alleging that it was 

additionally entitled to disclosure of the bid information 

under unspecified “federal legislation which requires 

disclosure of information by parties supplying service 

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

motion papers, plaintiff indicated that the federal 

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

provides, in relevant part: 

Each [Head Start] agency shall also provide

for reasonable public access to information,

including public hearings at the request of 

appropriate community groups and reasonable 

public access to books and records of the agency

or other agencies engaged in program activities

or operations involving the use of authority or 

funds for which it is responsible. 

After the commencement of the litigation, various HHS 

officials issued memoranda indicating that defendant was 

not required under the FOIA or the Head Start Act to 

provide plaintiff with access to the bid information. In 

a letter to defendant, a program officer in the Chicago 

regional office of the HHS advised defendant that Head 

5 Although the trial court treated plaintiff’s

complaint as if it contained a claim under the federal

Freedom of Information Act, 5 USC 551 et seq., the parties

agree that plaintiff’s claim was based solely on the

Michigan FOIA. 

4
 
 

Start grantees are not subject to the FOIA provisions. 

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

and its corresponding HHS regulation, 45 CFR 1301.30,6 

defendant was not required to disclose specific 

information regarding the selection of a supplier; rather, 

it was required only to disclose general information such 

as copies of its written procurement procedures. 

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

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

Acts Division, stated that the FOIA did not apply to 

defendant; however, the director noted that defendant had 

provided plaintiff with a copy of the policy it followed 

in conducting its procurement activities and with 

background documents addressing its source of funding. 

The director also wrote a letter advising defense 

counsel that defendant was not subject to the requirements 

of the federal Freedom of Information Act.7 The director 

6 45 CFR 1301.30 provides: 

Head Start agencies and delegate agencies

shall conduct the Head Start program in an 

effective and efficient manner, free of political

bias or family favoritism. Each agency shall

also provide reasonable public access to 

information and to the agency's records 

pertaining to the Head Start program. [Emphasis

supplied.] 

7 5 USC 551 et seq. 

5
 
further advised counsel that defendant was bound by any 

provisions incorporated into the grant language regarding 

its obligations to make information concerning its 

activities available to the public, but that defendant had 

already complied with those requirements. 

Finally, in a letter written to Congressman Bart 

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

seeking the bid documents, the director of the HHS Office 

of Family and Child Development stated that defendant had 

reasonably complied with the requirements of § 9839 and 45 

CFR 1301.30 by providing plaintiff with a copy of its 

procurement procedures, and that defendant was under no 

further obligation to provide documents with specific 

commercial information it received through the competitive 

bid process. 

Citing these HHS memoranda, defendant moved for 

summary disposition, arguing that it was not subject to 

the Michigan FOIA or the federal FOIA and that defendant 

had exceeded any obligation it had to supply plaintiff 

with information under 42 USC 9839(a). 

The trial court granted defendant’s motion for 

summary disposition to the extent that plaintiff sought 

6
 
 

 

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

court, however, sua sponte granted summary disposition in 

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

that the requested information was subject to disclosure 

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

required that a Head Start agency grant “reasonable public 

access” to its books and records, opined that 

[a] demand that information be provided outside

of working hours would not be reasonable. A 

demand that an agency exhaustively search for

something that the requesting party cannot 

properly identify would not be reasonable. As 

recognized by the Michigan Freedom of Information

Act, it would likely not be reasonable to expect

an agency to create a record, such as a 

compilation or summary, when no such record 

exists. And it may well not be reasonable to

demand that an employee’s personnel file or 

disciplinary record be disclosed. 

In the present situation, a denial by the

Plaintiff of a written request to review 

specified, existing and readily accessible 

written bids is certainly not compliant with a

requirement of providing reasonable public

access. That would be true regardless of who

made the request, but the case is even more

compelling when the requesting party has a 

genuine, identifiable reason for the information

sought, as did the Plaintiff. 

In summary, Defendant’s denial of 

Plaintiff’s request to review and obtain copies

of the bids in question was in violation of the

Federal requirement that Plaintiff provide for

reasonable public access to information,

including reasonable public access to books and 

8 See note 5. Plaintiff’s FOIA claims are not at 

issue in this appeal. 

7
 
 

 

records of the agency, involving the use of funds

for which the Plaintiff is responsible. 

The Court of Appeals affirmed.9 Noting that the state 

courts shared concurrent jurisdiction to decide a case 

involving the Head Start Act because the act did not 

provide for exclusive federal jurisdiction,10 the panel 

rejected the reasoning of federal case law holding that 

the Head Start Act does not provide a private cause of 

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

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

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

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

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

provide adequate means to enforce its provisions: 

The statute in question, 42 USC 9839(a),

requires Head Start agencies to provide

reasonable public access to their books and 

records, but it does not provide any means of

enforcing this specific provision. Although the

Head Start Act requires agencies to open their 

books and records to the department secretary or

the United States Comptroller General for audit 

9 Office Planning Group, Inc v Baraga-HoughtonKeweenaw Child Dev Bd, 259 Mich App 279; 674 NW2d 686

(2003). 

10 Gulf Offshore Co v Mobil Oil Corp, 453 US 473, 478;

101 S Ct 2870; 69 L Ed 2d 784 (1981). 

11 See Johnson v Quin Rivers Agency for Community

Action, Inc, 128 F Supp 2d 332, 336 (ED Va, 2001); Hodder 

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

19049 (ND NY, 1995). 

8
 
 

 

and examination, 42 USC 9842, Congress

specifically provided for public access to the

books and records, not simply to the audits 

prepared by these other entities. Therefore, we

conclude an implied private cause of action 

exists.[12] 

The panel concluded that the trial court did not err 

in granting summary disposition for plaintiff because 

defendant had not complied with the “reasonable public 

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

defendant had failed to suggest why it would be 

unreasonable to disclose the requested information, held 

that because the information was readily available and 

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

statutory directive to provide “reasonable public 

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

the bidders did not have notice that the bids would be 

disclosed, stating that the statute itself provided that 

notice; the panel also rejected defendant’s argument that 

public policy dictated against interpreting the statute to 

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

that it was not required to defer to the interpretation of 

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

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

13 259 Mich App at 290-292. 

14 259 Mich App at 292-295. 

9
 
 

 

 

officials, opining that only a ruling from the “upper 

echelon” of the HHS would be entitled to deference and 

that, in any event, the officials’ interpretation was 

clearly wrong.15 

We granted defendant’s application for leave to 

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

provide for a private cause of action, we reverse the 

judgment of the Court of Appeals and enter judgment in 

favor of defendant. 

II. STANDARD OF REVIEW 

This case presents issues of statutory construction 

and other questions of law. Such questions are subject to 

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

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

15 259 Mich App at 297. 

16 470 Mich 888 (2004). 

17 Preserve the Dunes, Inc v Dep't of Environmental

Quality, 471 Mich 508, 513; 684 NW2d 847 (2004); Mack v 

Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002); Grand 

Traverse Co v Michigan, 450 Mich 457, 463-464; 538 NW2d 1

(1995). 

18 Mack, supra at 193. 

10
 
 

 

 

III. ANALYSIS 

A. INTRODUCTION 

The Head Start Act was enacted for the purpose of 

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

cognitive development of low-income children through the 

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

health, educational, nutritional, social, and other 

services that are determined, based on family needs 

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

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

Start agency “any local public or private nonprofit or 

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

secretary to provide financial assistance or grants to 

Head Start agencies for the operation of Head Start 

programs.20 

Under 42 USC 9836a, the secretary is directed to 

establish by regulation standards applicable to Head Start 

agencies, including performance standards, administrative 

and financial management standards, and standards relating 

to the conditions and location of agency facilities. The 

secretary has promulgated regulations implementing these 

19 42 USC 9831; see also Action for Boston Community

Dev, Inc v Shalala, 136 F3d 29, 30 (CA 1, 1998). 

20 42 USC 9833 to 9835; Community Action of Laramie

Co, Inc v Bowen, 866 F2d 347, 348 (CA 10, 1989). 

11
 
 

 

 

statutory directives.21 The secretary is directed under 42 

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

compliance with statutory and regulatory standards and to 

take corrective action if necessary. If an agency does 

not comply with such standards, the secretary may initiate 

proceedings to terminate the designation of the agency 

unless the agency corrects the deficiency.22 

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

provides as follows: 

Each Head Start agency shall observe 

standards of organization, management, and 

administration which will assure, so far as 

reasonably possible, that all program activities

are conducted in a manner consistent with the 

purposes of this subchapter [42 USC 9831 et 

seq.] and the objective of providing assistance

effectively, efficiently, and free of any taint

of partisan political bias or personal or family

favoritism. Each such agency shall establish or

adopt rules to carry out this section, which

shall include rules to assure full staff 

accountability in matters governed by law,

regulations, or agency policy. Each agency shall 

also provide for reasonable public access to

information, including public hearings at the 

request of appropriate community groups and 

reasonable public access to books and records of

the agency or other agencies engaged in program 

activities or operations involving the use of

authority or funds for which it is responsible.

Each such agency shall adopt for itself and other

agencies using funds or exercising authority for

which it is responsible, rules designed to (1)

establish specific standards governing salaries, 

21 See 45 CFR 1304.1. 

22 42 USC 9836a(d)(1)(C). 

12
 
salary increases, travel and per diem allowances,

and other employee benefits; (2) assure that only

persons capable of discharging their duties with

competence and integrity are employed and that

employees are promoted or advanced under 

impartial procedures calculated to improve agency

performance and effectiveness; (3) guard against

personal or financial conflicts of interest; and

(4) define employee duties in an appropriate

manner which will in any case preclude employees

from participating, in connection with the 

performance of their duties, in any form of

picketing, protest, or other direct action which

is in violation of law. [Emphasis supplied.] 

Similarly, Head Start regulation 45 CFR 1301.30 provides 

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

access to information and to the agency's records 

pertaining to the Head Start program.” 

The lower courts concluded that defendant was 

required under the “reasonable public access” provision of 

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

connection with its January 2001 solicitation of bids for 

office supplies and furniture. In considering the 

propriety of the lower courts’ rulings, we must first 

determine whether the trial court properly exercised 

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

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

plaintiff’s private cause of action to enforce the 

disclosure provision. Although we conclude that the state 

courts have jurisdiction over this action, we hold that 

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

13
 
 

 

B. CONCURRENT JURISDICTION 

Defendant first argues that the state courts lack 

jurisdiction over plaintiff’s claim under the federal Head 

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

23 We note initially that defendant, in support of its 

assertion that subject-matter jurisdiction is lacking,

presents a hodgepodge, “shotgun approach” argument that

conflates the concepts of exhaustion of remedies, primary

jurisdiction, “Chevron doctrine” deference, and existence

of a private cause of action under the federal statute at

issue, making it rather difficult to discern what 

precisely it is that defendant is arguing. These concepts

are not, in fact, jurisdictional in nature. See, e.g.,

Northwest Airlines, Inc v Kent Co, Michigan, 510 US 355,

365; 114 S Ct 855; 127 L Ed 2d 183 (1994) (“The question 

whether a federal statute creates a claim for relief is 

not jurisdictional.”). 

In light of our determination that the Head Start

Act, in the first instance, does not provide for a private

cause of action to enforce the public access requirement

of § 9839(a), it is unnecessary to address defendant’s

assertion that primary jurisdiction over this cause of

action lies with the HHS, see Travelers Ins Co v Detroit 

Edison Co, 465 Mich 185; 631 NW2d 733 (2001), and its

related argument that plaintiff failed to exhaust 

administrative remedies before filing this state-court

action. However, we note that this case presents a

straightforward issue of statutory construction involving

the meaning of the simple phrase “reasonable public

access.” The interpretation of this particular statutory

language does not require knowledge of sophisticated or

technical terms or the exercise of expert judgment or

discretion. Because the “reasonable public access” 

provision presents a matter that the judiciary is 

particularly competent to address, rather than a matter

within the “specialized and expert knowledge” of the HHS,

see id. at 198, primary jurisdiction does not lie with

that agency. Moreover, there are no “prescribed

administrative remedies” that plaintiff has failed to

exhaust before seeking relief under § 9839(a) from the

Footnotes continued on following page. 

14 
 

courts. McCarthy v Madigan, 503 US 140, 144-145; 112 S Ct

1081; 117 L Ed 2d 291 (1992). 

Defendant’s somewhat cryptic assertion that the state

courts are required to give deference to the HHS’s 

interpretation of § 9839(a) warrants additional comment.

Citing the “Chevron doctrine,” see Chevron USA Inc v 

Natural Resources Defense Council, Inc, 467 US 837; 104 S

Ct 2778; 81 L Ed 2d 694 (1984), defendant argues that the

state courts are required to give deference to the 

determinations of HHS officials regarding the disclosure

required under the act and that the state courts therefore

lack jurisdiction over this action. Again, defendant is

conflating two discrete doctrines. The concept of Chevron 

deference is not jurisdictional; rather, it is a doctrine

that is in the nature of a standard of review, applied by

the judiciary in reviewing an agency’s reasonable 

construction of an ambiguous statute, which recognizes

that any necessary policy determinations in interpreting a

federal statute are more properly left to the agency

responsible for administering the particular statute. See 

Yellow Transportation, Inc v Michigan, 537 US 36, 47-48;

123 S Ct 371; 154 L Ed 2d 377 (2002); United States v Mead 

Corp, 533 US 218, 227-228; 121 S Ct 2164; 150 L Ed 2d 292

(2001), quoting Chevron, supra at 844 (“‘considerable

weight should be accorded to an executive department’s

construction of a statutory scheme it is entrusted to

administer’”). 

Again, because we have determined that there is no

private cause of action to enforce the disclosure 

requirement of the Head Start Act, we need not address

whether the state courts are required, under Chevron and 

Mead, supra, to accord deference to the letters authored

by these HHS officials. However, we note in passing that

these letters presumably lack the “force of law” that is

generally required for application of Chevron-type

deference. See, e.g., Shalala v Guernsey Mem Hosp, 514 US

87, 99; 115 S Ct 1232; 131 L Ed 2d 106 (1995) (noting that

administrative interpretive rules, which do not require

notice and comment, “do not have the force and effect of

law and are not accorded that weight in the adjudicatory

process”); Northwest Airlines, supra at 366-367 (noting

that a “reasoned decision” of the Secretary of 

Transportation would be entitled to Chevron-type deference

in a dispute over the meaning of a provision of the AntiHead Tax Act, 49 USC 1513); Human Development Corp of 

Footnotes continued on following page. 

15
 
 

 

have concurrent jurisdiction with the federal courts to 

entertain plaintiff’s action seeking relief under 

§ 9839(a). 

It has long been established that, so long as 

Congress has not provided for exclusive federal-court 

jurisdiction, state courts may exercise subject-matter 

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

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

courts possess sovereignty concurrent with that of the 

federal government, “subject only to limitations imposed 

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

presumptively competent to assume jurisdiction over a 

Metropolitan St Louis v United States Dep’t of Health &

Human Services, 312 F3d 373, 379 (CA, 8, 2002) (applying

Chevron deference to a final decision of the HHS’s 

Departmental Appeals Board interpreting an HHS 

regulation); see also Mead, supra at 236, n 17;

Christensen v Harris Co, 529 US 576, 586-587; 120 S Ct

1655; 146 L Ed 2d 621 (2000). 

24 Tafflin v Levitt, 493 US 455, 459; 110 S Ct 792;

107 L Ed 2d 887 (1990), quoting Claflin v Houseman, 93 US

130, 136; 23 L Ed 833 (1876). 

25 Tafflin, supra at 458. See US Const, art VI, cl 2

(“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.”). 

16
 
 

 

 

cause of action arising under federal law.26 If concurrent 

jurisdiction otherwise exists, subject-matter jurisdiction 

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

In determining whether our state courts enjoy 

concurrent jurisdiction over a claim brought under federal 

law, it is necessary to determine whether Congress 

intended to limit jurisdiction to the federal courts. 

"In considering the propriety of state-court

jurisdiction over any particular federal claim,

the Court begins with the presumption that state

courts enjoy concurrent jurisdiction. Congress,

however, may confine jurisdiction to the federal

courts either explicitly or implicitly. Thus,

the presumption of concurrent jurisdiction can be

rebutted by an explicit statutory directive, by

unmistakable implication from legislative

history, or by a clear incompatibility between

state-court jurisdiction and federal 

interests."[28] 

26 Tafflin, supra at 459; Gulf Offshore Co, supra at 

478; Charles Dowd Box Co, Inc v Courtney, 368 US 502, 507-

508; 82 S Ct 519; 7 L Ed 2d 483 (1962). 

27 Gulf Offshore Co, supra at 478. 

28 Tafflin, supra at 459-460, quoting Gulf Offshore 

Co, supra at 478 (citations omitted); see also Peden v 

Detroit, 470 Mich 195, 201 n 4; 680 NW2d 857 (2004).

Although we, of course, must apply these federal-law

principles in determining whether concurrent jurisdiction

exists under the federal statute, we would be remiss if we

failed to note that the use of legislative history in the

search for legislative intent “‘is a perilous venture . .

. [that is] doubly fraught with danger in Michigan which,

unlike Congress, has failed to create an authoritative

legislative record.’” Frank W Lynch & Co v Flex 

Technologies, Inc, 463 Mich 578, 587 n 7 (2001), quoting

People v Tolbert, 216 Mich App 353, 360 n 5; 549 NW2d 61

Footnotes continued on following page. 

17 
 

 

Defendant does not present a coherent argument that 

the courts of this state lack jurisdiction over the 

parties’ dispute concerning the disclosure of documents 

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

the “expansive regulatory scheme” of the Head Start Act 

“evidences Congressional intent that the HHS exercise its 

sole discretion over its administration of local HeadStart 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 subjectmatter jurisdiction over the action. 

Defendant concedes that nothing in the Head Start Act 

explicitly confines jurisdiction to the federal courts, 

and defendant does not point to any statutory indication 

(1996). 

18
 
 

that Congress intended that jurisdiction over a dispute 

under the Head Start Act should lie solely in the federal 

courts. We have been unable to locate anything in the 

legislative history of the act demonstrating an intent to 

grant exclusive federal-court jurisdiction, and defendant 

has certainly failed to bring any such information to our 

attention. Moreover, there is no “clear incompatibility” 

between state-court jurisdiction and federal interests 

with respect to application of the Head Start Act, 

particularly with respect to a straightforward question of 

statutory construction such as the one presented in this 

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

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

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

causes of action facilitates the enforcement of federal 

rights.” 

Congress has done nothing in the exercise of its 

powers under the Supremacy Clause to “affirmatively divest 

state courts of their presumptively concurrent 

jurisdiction” over claims brought under the Head Start 

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

state have subject-matter jurisdiction over the dispute at 

29 Yellow Freight Sys, Inc v Donnelly, 494 US 820,

823; 110 S Ct 1566; 108 L Ed 2d 834 (1990). 

19
 
 

 

issue, because our Constitution provides that the circuit 

courts of this state have original jurisdiction “in all 

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

hold that the courts of this state have properly exercised 

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

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

Defendant next contends that plaintiff’s claim fails 

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

action to enforce the public access requirement. We 

agree. 

1. WHETHER A CAUSE OF ACTION EXISTS IS SOLELY 

A MATTER OF STATUTORY CONSTRUCTION 

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

and some person harmed does not automatically give rise to 

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

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

rights of action to enforce federal law must be created by 

Congress.”32 Thus, in determining whether plaintiff may 

bring a private cause of action to enforce the public 

30 Const 1963, art 6, § 13. 

31 Touche Ross & Co v Redington, 442 US 560, 568; 99 S

Ct 2479; 61 L Ed 2d 82 (1979), quoting Cannon v Univ of 

Chicago, 441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560

(1979). 

32 Alexander v Sandoval, 532 US 275, 286; 121 S Ct

1511; 149 L Ed 2d 517 (2001); see also Touche Ross & Co, 

supra at 578. 

20
 
 

 

 

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

Congress intended to create such a cause of action.33 

Because the Head Start Act does not evidence an intent to 

create a private remedy for an alleged violation of § 

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

Although the United States Supreme Court in the last 

century embraced a short-lived willingness to create 

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

that approach to statutory remedies in Cort v Ash35 and 

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

33 Alexander, supra at 286-287. 

34 See, e.g., Bivens v Six Unknown Named Agents of Fed

Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d

619 (1971) (inferring a private cause of action for

damages to enforce the Fourth Amendment guarantee against

unreasonable searches and seizures); J I Case Co v Borak,

377 US 426, 433; 84 S Ct 1555; 12 L Ed 2d 423 (1964)

(holding that “it is the duty of the courts to be alert to 

provide such remedies as are necessary to make effective

the congressional purpose” of a federal statute). See 

also, generally, Correctional Services Corp v Malesko, 534

US 61, 75; 122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia,

J., concurring) (noting that “Bivens is a relic of the 

heady days in which this Court assumed common-law powers

to create causes of action—decreeing them to be ‘implied’

by the mere existence of a statutory or constitutional

prohibition”); Note, Section 1983 and implied rights of

action: Rights, remedies, and realism, 90 Mich L R 1062,

1071-1083 (1992) (exploring the evolution of the United

States Supreme Court’s implied right of action 

jurisprudence and its subsequent retreat). 

35 422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975). 

36 Alexander, supra at 287. 

21
 
 

 

forth a test for determining whether a private remedy is 

implicit in a statute that does not expressly provide such 

a remedy: 

First, is the plaintiff "one of the class

for whose especial benefit the statute was 

enacted," . . . that is, does the statute create 

a federal right in favor of the plaintiff?

Second, is there any indication of legislative

intent, explicit or implicit, either to create

such a remedy or to deny one? . . . Third, is it 

consistent with the underlying purposes of the

legislative scheme to imply such a remedy for the

plaintiff? . . . And finally, is the cause of

action one traditionally relegated to state law,

in an area basically the concern of the States,

so that it would be inappropriate to infer a

cause of action based solely on federal law?[37] 

Post-Cort, the Court has become increasingly 

reluctant to imply a private cause of action, preferring 

to focus exclusively on the second Cort element, which 

requires indicia of congressional intent to create a cause 

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

Chicago,38 although the Court applied each of the Cort 

factors, it characterized the determination whether a 

private remedy existed to enforce a statutory right as a 

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

37 Cort, supra at 78 (emphasis deleted). 

38 441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560

(1979). 

39 See also Merrell Dow Pharmaceuticals Inc 

Thompson, 478 US 804, 812; 106 S Ct 3229; 92 L Ed 2d 650 

Footnotes continued on following page. 

22 

v 
 

Co,40 the Court declined to even address the remaining Cort 

factors where it was clear that Congress did not intend to 

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

Securities Exchange Act of 1934:41 

It is true that in Cort v. Ash, the Court

set forth four factors that it considered 

"relevant" in determining whether a private 

(1986), noting that it would “flout congressional intent

to provide a private federal remedy” for an alleged

violation of the federal Food, Drug, and Cosmetic Act, 21

USC 301 et seq.: 

See, e.g., Daily Income Fund, Inc. v. Fox,

464 US 523, 535-536 (1984) ("In evaluating such a

claim, our focus must be on the intent of 

Congress when it enacted the statute in 

question."); Middlesex County Sewerage Authority 

v. National Sea Clammers Assn., 453 U.S., at 13

("The key to the inquiry is the intent of the

Legislature."); Texas Industries, Inc. v. 

Radcliff Materials, Inc., 451 U.S. 630, 639 

(1981) ("Our focus, as it is in any case 

involving the implication of a right of action,

is on the intent of Congress."); California v. 

Sierra Club, 451 U.S. at 293 ("[The] ultimate

issue is whether Congress intended to create a 

private right of action."); Northwest Airlines, 

Inc. v. Transport Workers, 451 U.S. 77, 91 (1981)

("The ultimate question in cases such as this is

whether Congress intended to create the private

remedy."); Transamerica Mortgage Advisors, Inc. 

v. Lewis, 444 U.S. 11, 15 (1979) ("The question

whether a statute creates a cause of action,

either expressly or by implication, is basically

a matter of statutory construction."); Touche 

Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)

("The question of the existence of a statutory 

cause of action is, of course, one of statutory

construction."). [Merrell, supra at 812 n 9.] 

40 Touche Ross & Co, supra at 575-576. 

41 15 USC 78q(a). 

23
 
 

remedy is implicit in a statute not expressly

providing one. But the Court did not decide that 

each of these factors is entitled to equal

weight. The central inquiry remains whether

Congress intended to create, either expressly or

by implication, a private cause of action. 

Indeed, the first three factors discussed in

Cort—the language and focus of the statute, its

legislative history, and its purpose, see 422

U.S. at 78—are ones traditionally relied upon in

determining legislative intent. Here, the 

statute by its terms grants no private rights to

any identifiable class and proscribes no conduct

as unlawful. And the parties as well as the

Court of Appeals agree that the legislative

history of the 1934 Act simply does not speak to

the issue of private remedies under § 17 (a). At 

least in such a case as this, the inquiry ends

there: The question whether Congress, either 

expressly or by implication, intended to create a

private right of action, has been definitely

answered in the negative. 

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

noting that “the focus of the inquiry is on whether 

Congress intended to create a remedy,” concluded that 

consideration of the first two Cort factors was 

dispositive. Because there was no indication that 

Congress intended to create a private remedy to enforce § 

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

the Court held that it was unnecessary to inquire further 

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

42 451 US 287, 297; 101 S Ct 1775; 68 L Ed 2d 101

(1981). 

43 33 USC 403. 

24
 
 

only of relevance if the first two factors give indication 

of congressional intent to create the remedy.”44 

In Alexander, the Court appears to have abandoned the 

Cort inquiry altogether in favor of a completely textual 

analysis in determining whether a private remedy exists 

under a particular statute. Rather than applying the Cort 

factors, the Alexander Court concluded, solely on the 

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

individuals could not sue to enforce disparate-impact 

regulations promulgated under Title VI of the Civil Rights 

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

that dispositive weight could be accorded to context shorn 

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

extent it clarifies text.”45 The Alexander majority 

additionally rejected the dissent’s claim that the 

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

of congressional intent,’” noting that the methodology 

44 Sierra Club, supra at 298. 

This Court has also noted the paramount importance of

legislative intent in determining whether a private cause

of action can be founded on an alleged violation of a

statute. See Gardner v Wood, 429 Mich 290, 302 n 6; 414

NW2d 706 (1987) (noting that Cort marked “the beginning of

a trend in the federal courts to reserve the creation of 

civil remedies from penal violations only where to do so

[was] clearly consistent with affirmative legislative

intent”). 

45 Alexander, supra at 288. 

25
 
 

employed in the majority opinion was well established in 

earlier decisions that explained “that the interpretive 

inquiry begins with the text and structure of the statute 

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

not provide a cause of action.”46 

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

With the aforementioned principles in mind, we 

examine the text of the Head Start Act to determine 

46 Id. at 288 n 7. 

Our dissenting colleagues assert that we have 

incorrectly characterized Touche Ross & Co and Alexander 

as representing a departure from the four-factor Cort 

test. Post at 3-4. Whether the United States Supreme

Court will, in the future, continue to apply the four-part

Cort test is, however, simply irrelevant where it is clear

from the text of the statute at issue that Congress did

not intend to create a private enforcement action. 

Indeed, this case is directly analogous to Touche Ross & 

Co and Alexander. As the dissent points out, the 

provisions at issue in Touche Ross & Co and Alexander 

neither conferred rights on individuals nor proscribed

conduct as unlawful. The same can certainly be said of 42

USC 9839(a). Similarly, the dissent notes that the

Alexander Court found it quite telling that the statute at

issue expressly empowered governmental agencies to enforce

regulations. The Head Start Act does precisely that, by

directing the secretary to establish regulations governing

Head Start agencies and to enforce those regulations, and,

in 42 USC 9839(a), by requiring Head Start agencies to

conduct program activities in conformity with the Head

Start Act and to establish or adopt rules to carry out

that duty. 

We note, in passing, that Justice Weaver’s separate

dissent merely echoes the longer dissent of Justice Kelly.

Accordingly, we respond to both in kind. 

26
 
whether it provides for a private cause of action to 

enforce § 9839(a). 

To date, two federal district courts have considered 

whether causes of action existed under different 

provisions of the Head Start Act. Although our Court of 

Appeals cited these cases, it rejected their analyses 

without explanation. 

In Hodder, supra, the United States District Court 

for the Northern District of New York applied the Cort 

factors and concluded that the plaintiffs, former 

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

of action for wrongful discharge under the Head Start Act: 

Turning to the first [Cort] factor,

plaintiffs are far-removed from the class for

whose special benefit Congress enacted the Head

Start Act. The purpose of this Act is to

authorize the appropriation of funds for Project

Head Start's "effective delivery of comprehensive

health, educational, nutritional, social and 

other services to economically disadvantaged

children and their families." 42 USC § 9831(a).

Hence, the class for whose special benefit 

Congress passed the Head Start Act is the class

of economically disadvantaged children and their

families who need the specified services, which

do not under any reasonable interpretation of the

Act include employment services. Indeed, a Head

Start agency would likely violate the Act if it

employed the parent of Head Start child. See 42 

USC § 9839(a)(3). Plaintiffs' assertion that 

"employees of Head Start agencies . . . are

members of a class which is specially addressed 

are protected by the Act and regulations" is

legally unsupported and legally unsupportable.

. . . Congress plainly did not enact the Head 

Start Act in order to benefit Head Start 

employees. 

27 
As to the second Cort factor, the Court has

found no indication that Congress intended the

Act or its interpretive regulations to create a 

private right of action for employees who are

terminated from Head Start agencies in a manner 

allegedly inconsistent with those rules. 

Plaintiffs admit that the Act lacks any explicit

indication that Congress intended to create a

cause of action for these employees, but argue

that § 9849(b) of the Act "specifically negates

any intent to deny such a cause of action." . . .

Section 9849(b) concerns the application of the

Civil Rights Act to any sexual discrimination

that may occur in connection with Head Start

programs or activities. The last sentence states 

that the section "shall not be construed as 

affecting any other legal remedy that a person

may have if such person is . . . denied 

employment in connection with[] any [Head Start]

program, project, or activity . . . ." 

At best, this sentence reveals a 

congressional unwillingness to interfere with any

of the state and federal remedies that may be

available to people who are denied jobs at Head

Start agencies; it certainly does not reveal a

congressional intent to create a private right of

action under the Head Start Act for people who

are fired from Head Start agencies. As 

plaintiffs surely realize, if courts inferred

from Congress' failure to prohibit a private

cause of action the congressional intent to 

create a private cause of action, courts would

read into almost every federal statute an implied

right of action. In the majority of instances,

this curious interpretive method would undermine

congressional intent rather than effectuate it.

It also runs counter to the Supreme Court's

demonstrated reluctance to infer private causes

of action from federal statutes. . . . 

Plaintiffs fare no better under the third 

Cort factor because implying a private right of 

action from the Head Start Act would do little or 

nothing to further the underlying purposes of the

legislative scheme. . . . 

* * * 

28
 
 

We now come to the fourth Cort factor. 

Plaintiffs cast their claim as one "based on 

employee discharge in violation of federal 

policies . . . ." . . . For purposes of 

determining the existence of subject matter 

jurisdiction, however, the Court considers the

true nature of plaintiffs' action. . . . Although

plaintiffs carefully avoid the phrase in their

complaint, the essence of their claim is breach

of an employment contract. Actions of this kind 

are traditionally relegated to state law. Thus 

the fourth Cort factor, along with the first

three, strongly support the conclusion that the

Head Start Act does not contain an implied

private right of action for people who are 

terminated from Head Start agencies.[47] 

Similarly, in Johnson, supra, the plaintiff alleged 

that the defendants had mismanaged a Head Start program in 

violation of federal regulations. The District Court for 

the Eastern District of Virginia held that Congress did 

not intend to provide a private cause of action to enforce 

the federal regulations: 

In this case, the applicable statutory

scheme is set forth pursuant to the Head Start

Act, 42 U.S.C. §§ 9831-9852a. Under the scheme,

the Secretary of the Department of Health and

Human Services is directed to "establish by

regulation standards applicable to Head Start

agencies, programs, and projects under this 

subchapter," including "minimum levels of overall

accomplishment that a Head Start agency shall

achieve." 42 U.S.C. § 9836a(a)(1) & (2). The 

Secretary is also directed under this section to

monitor the performance of every Head Start 

program and to take appropriate corrective action

when a program fails to meet the performance

standards established by the regulations. 

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

29 
 

 

Specifically, the Act requires a full review of

each grantee at least once during each three-year

period, review of new grantees after the 

completion of the first year, follow up reviews

and return visits to grantees that fail to meet

the standards, and "other reviews as 

appropriate." 42 U.S.C. § 9836a(c). If the 

Secretary determines, on the basis of such a

review, that a grantee fails to meet the 

standards described in § 9836a(a), the Secretary

shall, inter alia, institute proceedings to 

terminate the Head Start grant unless the agency

corrects the deficiency. 42 U.S.C. § 9836a(d). 

All but three of the regulations cited in

plaintiff's Second Amended Complaint were 

promulgated pursuant to the Head Start Act. See 

45 C.F.R. § 1304.1. There is no provision in the

Head Start Act, however, permitting a private

citizen to enforce its provisions. Based on the 

alternative specific remedies mentioned above,

Congress' intent is clear. The remedy for 

substandard performance by a Head Start program

is an enforcement action by the Secretary of the

Department of Health and Human Services, not by 

private litigants. For these reasons, the Court

dismisses with prejudice plaintiff's claims 

alleging violations of statutory and regulatory

provisions relating to the Head Start Act, for

failure to state a claim upon which relief can be

granted.[48] 

We find Hodder and Johnson to be persuasive and 

similarly conclude, on the basis of the text and structure 

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

exists to enforce § 9839(a). 

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

private cause of action to enforce the disclosure 

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

48 Johnson, supra at 336-337. 

30
 
whether the text of the act demonstrates an implicit 

intent to provide for a private cause of action. 

Again, the stated purpose of the act is to promote 

school readiness by providing services to low-income 

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

not contemplate any benefit to private corporations such 

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

private corporation may sue to enforce its provisions. 

Where the intended beneficiaries are specifically 

identified, we are loath to create a private means of 

seeking redress under the act for nonbeneficiaries. 

More important, the act contains a comprehensive 

mechanism for ensuring agency compliance with its 

provisions. We agree with the Johnson court that, far 

from demonstrating an intent to allow for a private cause 

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

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

secretary of the HHS and the possible termination of Head 

Start agency status. See 42 USC 9836a. 

In light of this clear indication of congressional 

intent, we are precluded from venturing beyond the bounds 

of the statutory text to divine support for the creation 

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

be to substitute our own judgment for that of Congress and 

31
 
 

 

thus to usurp legislative authority, something that we of 

course decline to do.49 

IV. CONCLUSION 

Because the Head Start Act does not provide for a 

private cause of action to enforce the disclosure 

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

cognizable claim. Accordingly, we reverse the judgment of 

the Court of Appeals and enter judgment in favor of 

defendant. 

Robert P. Young, Jr.

Clifford W. Taylor

Maura D. Corrigan

Stephen J. Markman 

49 Again, contrary to the assertions of our dissenting

colleagues, we do not miss any “important distinction”

between the statutes at issue in Touche Ross & Co and 

Alexander and the statute at issue in this case, and this

case does not represent the “opposite situation” of the

situations present in those cases. Post at 6. Rather,

just as the provisions at issue in Touche Ross & Co and 

Alexander, 42 USC 9839(a) “call[s] for oversight by 

governmental agencies.” Post at 6. Moreover, we wholly

disagree with the dissent’s contention that § 9839(a) 

“specifically confers an individual right on members of

the public to conduct inspections of books and records.”

Post at 6. Rather, § 9839(a) imposes on Head Start

agencies a disclosure requirement, and 42 USC 9836a 

explicitly provides a remedy for a violation of that

requirement: corrective action to be initiated by the 

secretary. 

32
 
_______________________________ 

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

SUPREME COURT 

THE OFFICE PLANNING GROUP, INC., 

Plaintiff-Appellee, 

v No. 125448 

BARAGA-HOUGHTON-KEWEENAW 

CHILD DEVELOPMENT BOARD, INC., 

Defendant-Appellant. 

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

I concur in the majority opinion to the extent it 

holds that the state courts have concurrent jurisdiction in 

this matter. 

I dissent from the majority holding that 42 USC 

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

plaintiff to seek disclosure of information relevant to the 

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

USC 9839(a) provides, in pertinent part: 

Each [Head Start] agency shall also provide

for reasonable public access to information,

including public hearings at the request of 

appropriate community groups and reasonable 

public access to books and records of the agency

or other agencies engaged in program activities

or operations involving the use of authority or

funds for which it is responsible. 

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

would hold that this statutory language does provide 
 

plaintiff a right to seek “reasonable” disclosure of 

records pertaining to contract bids submitted to a Head 

Start agency. 

I write separately to elaborate on the majority’s 

misreading of the effect of Alexander v Sandoval1

 on Cort v 

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

Alexander “appears to have abandoned the Cort inquiry 

altogether in favor of a completely textual analysis in 

determining whether a private remedy exists under a 

particular statute.” Ante at 26. 

Cort identified four factors relevant to determining 

whether a federal statute implied a private remedy where 

the statute did not expressly provide one. Cort held: 

First, is the plaintiff "one of the class for

whose especial benefit the statute was enacted,"

. . . that is, does the statute create a federal 

right in favor of the plaintiff? Second, is there

any indication of legislative intent, explicit or

implicit, either to create such a remedy or to deny

one? . . . Third, is it consistent with the

underlying purposes of the legislative scheme to

imply such a remedy for the plaintiff? . . . And 

finally, is the cause of action one traditionally

relegated to state law, in an area basically the

concern of the States, so that it would be 

1 532 US 275; 121 S Ct 1511; 149 L Ed 2d 517 (2001). 

2

 422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975). 

2
 
 

 

 

inappropriate to infer a cause of action based

solely on federal law?[3] 

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

be inferred from a statute, Alexander involved a distinct 

issue: whether a private cause of action could be inferred 

from a regulation that forbids conduct beyond that which 

was forbidden by the statute under which the regulation was 

promulgated.4 

Because the conduct at issue in Alexander was 

prohibited by a regulation, but not by the statute pursuant 

to which the regulation was adopted, Alexander held that a 

cause of action alleging conduct in violation of the 

3 Cort, supra at 78. 

4 Alexander involved an interpretation of Title VI of

the Civil Rights Act of 1964, which provides in § 601 that

no person shall, "on the ground of race, color, or national

origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

program or activity" covered by Title VI. 42 USC 2000d. 

Section 602 of the statute authorizes federal agencies to

implement the provisions in § 601 by regulations. 

The Department of Justice adopted regulations pursuant

to § 602 that forbid funding recipients from adopting

policies that created a disparate impact on individuals

because of their race, color, or national origin. See 28

CFR 42.104(b)(2) (1999). Claiming that an English-only

policy caused such disparate impacts, the plaintiffs in

Alexander sued to enjoin the policy. While the Alexander 

Court assumed that the regulations were valid, the Court

held that there was no private cause of action as a result

of the policy because § 601 did not prohibit disparate

impacts. 

3
 
regulation could not be inferred from the statute. Given 

this situation, it was unnecessary for Alexander to delve 

deeply into the Cort factors to resolve whether a cause of 

action could be inferred from the statute. 

Though the majority may prefer that Cort’s factors be 

abandoned and a “completely textual” approach be adopted, 

neither logic nor federal precedent supports its 

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

textual approach” where the need to examine whether a cause 

of action may be inferred from a statute is engendered by 

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

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

explain how its “completely textual” approach differs from 

the Cort factors. 

Second, while the majority correctly notes that not 

every federal case involving whether a private cause of 

action may be inferred from a statute has applied all the 

four Cort factors, it is an overstatement to suggest that 

the federal courts have “abandoned the Cort inquiry 

altogether.” Even federal cases relied on by the majority 

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

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

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

as follows: 

4
 
The Court may infer a private right of 

action from a federal statute that does not 

expressly create one only if the statute's 

language, structure, and legislative history

reveal Congress' intent to create a private right

of action. See Thompson v. Thompson, 484 U.S.

174, 179, 98 L. Ed. 2d 512, 108 S. Ct. 513

(1988); Touche Ross & Co. v. Redington, 442 U.S.

560, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979); Cort 

v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct.

2080 (1975). Courts normally try to divine 

Congressional intent by applying the four Cort

factors: 1) whether plaintiffs belong to the 

class for whose special benefit Congress passed

the statute; 2) whether the indicia of 

legislative intent reveal a congressional purpose

to provide a private cause of action; 3) whether

implying a private cause of action is consistent

with the underlying purposes of the legislative

scheme; and 4) whether the plaintiff's cause of

action concerns a subject that is traditionally

relegated to state law. Merrell Dow 

[Pharmaceuticals Inc v Thompson], 478 U.S. [804, 

810-811; 106 S Ct 3229; 92 L Ed 2d 650 (1986)]; 

Cort, 422 U.S. at 78. 

Hodder applied each factor from Cort to the provision 

of the Head Start Act at issue in that case. 

That the majority misunderstands Alexander’s effect is 

underscored by a recent United States Supreme Court 

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

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

Court emphasized that Alexander’s holding is simply 

premised on the fact that the regulations at issue in 

Alexander extended protection beyond the limits of the 

statute at issue in Alexander. Describing the holding of 

Alexander, Jackson stated: 

5
 
[In Alexander] we rejected the contention 

that the private right of action to enforce 

intentional violations of Title VI encompassed

suits to enforce the disparate-impact

regulations. We did so because "it is clear . . .

that the disparate-impact regulations do not 

simply apply § 601 -- since they indeed forbid

conduct that § 601 permits -- and therefore

clear that the private right of action to enforce

§ 601 does not include a private right to

enforce these regulations." [Alexander] at 285,

149 L. Ed. 2d 517, 121 S. Ct. 1511. See also

Central Bank of Denver, N. A. v. First Interstate 

Bank of Denver, N. A., 511 U.S. 164, 173, 128 L.

Ed. 2d 119, 114 S. Ct. 1439 (1994) (A "private

plaintiff may not bring a [suit based on a 

regulation] against a defendant for acts not 

prohibited by the text of [the statute]"). 

In this case we must necessarily look beyond the text 

of the statute at issue to discern whether Congress 

intended that a private person be able to seek disclosure 

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

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

expressly create a private cause of action to enforce its 

provision regarding public access to information. Thus, it 

is necessary to look beyond the text to determine whether 

Congress intended to create a private cause of action. As 

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

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

present the relevant inquiries to pursue in 

answering the recurring question of implied

causes of action. Cases subsequent to Cort have 

explained that the ultimate issue is whether 

Congress intended to create a private right of

action . . . but the four factors specified in 

6
 
 

 

Cort remain the "criteria through which this 

intent could be discerned." [Citations omitted.] 

Given the task at hand and the federal precedent by 

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

employ a “completely textual” approach. Any inquiry into 

whether a private cause of action may be inferred requires 

consideration of the intent of Congress and Cort is our 

guide. Regardless of the majority’s apparent discomfort 

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

bound by federal law and five votes have not combined in 

any one case in the United States Supreme Court to declare 

Cort a dead letter.5 

Elizabeth A. Weaver 

5

 In Thompson v Thompson, 484 US 174; 108 S Ct 513; 98

L Ed 2d 512 (1988), Justice Scalia (concurring in the

judgment) expressed his vigorous disagreement with whether

the Court should reaffirm Cort and whether it was 

appropriate to infer private causes of action from federal

statutes that do not expressly provide them. Justice 

Scalia’s view of Cort and inferred causes of action has not 

yet garnered the requisite five votes. 

7
 
_______________________________ 

v 

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

SUPREME COURT 

THE OFFICE PLANNING GROUP, INC., 

Plaintiff-Appellee, 

No. 125448 

BARAGA-HOUGHTON-KEWEENAW 

CHILD DEVELOPMENT BOARD, INC., 

Defendant-Appellant. 

KELLY, J. (dissenting). 

I agree with the majority that our state courts have 

jurisdiction over plaintiff’s claim under the federal Head 

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

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

provide a private cause of action. The statutory language, 

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

imply a congressional intent to allow private actions. 

Therefore, I would find such a right and affirm the 

decision of the Court of Appeals. 

Defendant’s Various Jurisdictional Challenges 

Defendant raises a variety of jurisdictional arguments 

on appeal. It claims that primary jurisdiction must rest 

with the Department of Health and Human Services (HHS) 

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

the doctrine of primary jurisdiction in Travelers Ins Co v 

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

is based on the principle of separation of powers and is 

concerned with the respect appropriately shown to an 

agency's decisions made in the performance of regulatory 

duties. Id. at 196-197. 

The primary jurisdiction doctrine underscores the 

notion that administrative agencies possess specialized and 

expert knowledge to address the matters they regulate. Id. 

at 198. The question of primary jurisdiction arises only 

with respect to matters that Congress has assigned to a 

governmental agency or administrative body. Attorney 

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

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

Moreover, resolution of this case does not require 

specialized knowledge. Instead, it involves a 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. 

2
 
 

Defendant complains that, under the Chevron1 doctrine, 

the meaning that HHS has given to “reasonable public 

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

should be definitive. Chevron directs that considerable 

weight be accorded an agency’s construction of a statutory 

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

the decision involves reconciling conflicting policies and 

requires more than ordinary knowledge of matters that the 

agency regulates. Id. 

This case does not demand a detailed knowledge of the 

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

a complicated matter of interagency interaction or policy. 

It does not require detailed knowledge of the workings of 

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

statutory construction. No special expertise being 

required, the Chevron doctrine does not apply. Id. 

Defendant also argues that we lack jurisdiction 

because plaintiff failed to exhaust all its administrative 

remedies. But the United States Supreme Court has ruled 

that “where Congress has not clearly required exhaustion, 

sound judicial discretion governs.” McCarthy v Madigan, 

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

1 Chevron USA Inc v Natural Resources Defense Council, 

Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984). 

3
 
USC 9839(a) contains no exhaustion requirements and is 

silent regarding administrative remedies. Therefore, it is 

within our sound discretion to hear this case. 

Given that none of the theories that defendant relies 

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

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

it is appropriate for us to decide whether Congress 

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

Whether a Private Cause of Action Exists 

Requires a Determination of Legislative Intent 

Congress can create a private right of action in two 

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

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

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

does not clearly express whether a private right was 

intended. The growing volume of litigation and the 

complexity of federal legislation increase the need for 

careful scrutiny to ensure what Congress wanted. Merrill 

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

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

To assist us in undertaking that scrutiny, the United 

States Supreme Court articulated a four-part test thirty 

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

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

the plaintiff is a member of the class for whose benefit 

4
 
 

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

is any indication that the legislative body intended to 

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

inferring the right of action is consistent with the 

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

cause of action is one traditionally relegated to state law 

so that it would be inappropriate to base the determination 

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

is determining the legislative intent in enacting the 

statute. Merrill Lynch, supra at 377-378. 

In Touche Ross & Co v Redington,2

 the Court opined that 

the first three factors of Cort should be given greater 

weight than the fourth. The opinion states: 

Indeed, the first three factors discussed in

Cort—the language and focus of the statute, its

legislative history, and its purpose, see 422

U.S., at 78—are ones traditionally relied upon in

determining legislative intent. [Id. at 575-

576.] 

The language of the statute in question in Touche Ross3 

did not explicitly create a private remedy. Also, the 

legislative history gave no indication that Congress 

intended one. The statute neither conferred rights on 

private parties nor proscribed conduct as unlawful. Touche 

2

 442 US 560; 99 S Ct 2479; 61 L Ed 2d 82 (1979). 

3

 15 USC 78q(a). 

5
 
 

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

documents for government inspection and focused on 

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

Because the statute did not imply a private right of 

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

The majority contends that, twenty-two years after 

Touche Ross, the United States Supreme Court abandoned the 

Cort analysis and switched to a completely textual analysis 

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

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

followed the same reasoning as in Touche Ross and focused 

on the initial Cort factors. 

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

determine legislative intent, it was important to start 

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

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

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

under consideration4

 indicated that Congress intended not to 

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

289. 

That statute neither conferred rights on private 

parties nor proscribed conduct as unlawful. Instead, it 

empowered governmental agencies to enforce regulations. 

4

 42 USC 2000d-1. 

6
 
 

 

 

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

providing one method of enforcement, Congress signaled that 

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

Contrary to the majority’s conclusion, a full reading 

of Alexander indicates that the Court did not abandon Cort. 

Instead, Alexander stated that the analysis in that case 

need not extend beyond the first two Cort factors because 

the statute indicated that Congress did not intend a 

private cause of action. The Cort factors remain a valid 

and important means of discerning legislative intent. The 

Alexander decision provides no basis to conclude the 

contrary. 

Specific Analysis of 42 USC 9839 

Despite espousing a textualist approach, the majority 

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

Instead, it focuses on tangentially related federal 

5

 The majority points out that 42 USC 9839(a) contains

language like the statutory language that the Supreme Court

analyzed in Alexander. Ante at 27 n 46. But the majority

again misses the point. Unlike 42 USC 2000d-1, it contains 

a directive that does not concern the mere internal 

creation of rules. 42 USC 9839(a) contains language that

is absent in 42 USC 2000d-1 (the statutory language 

analyzed in Alexander). 42 USC 9839(a) specifically 

mentions the “public” and “appropriate community groups

. . . .” It allows the public and these groups to request

public hearings and to seek access to books and records.

42 USC 9839(a). 

7
 
district court cases and the overall purpose of the Head 

Start Act. 

Let us review the actual language in question. 42 USC 

9839(a) provides in part: 

Each Head Start agency shall observe 

standards of organization, management, and 

administration which will assure, so far as 

reasonably possible, that all program activities

are conducted in a manner consistent with the 

purposes of this subchapter [42 USC 9831 et seq.]

and the objective of providing assistance 

effectively, efficiently, and free of any taint

of partisan political bias or personal or family

favoritism. Each such agency shall establish or

adopt rules to carry out this section, which

shall include rules to assure full staff 

accountability in matters governed by law,

regulations, or agency policy. Each agency shall

also provide for reasonable public access to 

information, including public hearings at the 

request of appropriate community groups and 

reasonable public access to books and records of

the agency or other agencies engaged in program

activities or operations involving the use of

authority or funds for which it is responsible.

Each such agency shall adopt for itself and other

agencies using funds or exercising authority for

which it is responsible, rules designed to . . .

(3) guard against personal or financial conflicts

of interest . . . . [Emphasis added.] 

This language indicates the intent of Congress to 

maintain open accountability in the use of Head Start 

funds. It explicitly provides a right of public access. 

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

reasonable public access to information,” it spells out 

particulars on how to meet this requirement, including 

holding public meetings. 

8
 
 

The statute specifically confers an individual right 

on members of the public to conduct inspections of books 

and records. The opposite situation existed in both Touche 

Ross and Alexander, where the statutes lacked language 

creating such a right. They offered neither the general 

public nor any private individual access to anything. The 

oversight they called for was by governmental agencies. 

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

The majority simply misses this important distinction.6 

It relies on two federal district court cases, Johnson 

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

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

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

Johnson and Hodder do not support the conclusion that no 

private cause of action exists and they are inapplicable to 

the case at hand. 

6

 The majority states that it “wholly disagree[s]” with

the conclusion that 42 USC 9839(a) confers an individual

right on a member of the public. It contends that 42 USC 

9839(a) merely creates a disclosure requirement. Ante at 

33 n 49. Again, the majority fails to analyze the actual 

language of the statute. 42 USC 9839(a) mandates public

access, such as public hearings, at the request of 

“appropriate community groups . . . .” Only by allowing

enforcement of this public inspection and access 

requirement can we effectuate Congress’s specific goal of

maintaining open accountability in the use of public funds.

The majority simply ignores this clear congressional

intent. 

9
 
Neither dealt with 42 USC 9839(a). Johnson concerned 

claims of discrimination and substandard enforcement of 

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

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

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

Hodder concerned claims of employees terminated from 

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

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

mentioned only in passing. 

The only thing Hodder and Johnson have in common with 

this case is that both involve provisions of the Head Start 

Act. But the statutory language scrutinized in Hodder and 

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

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

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

this case. 

The majority also bases its decision on the general 

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

purpose worth considering is the act’s overarching goal of 

providing services to low-income children and their 

families. It ignores the congressional intent specifically 

written into 42 USC 9839(a). 

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

maintaining open accountability in the use of public funds 

and effectuates it by providing a right of public access to

10 
books and records. By ignoring these specific provisions, 

the majority has effectively substituted its judgment for 

that of Congress. In reducing public oversight, it 

frustrates the paramount goals of the Head Start Act by 

facilitating the misuse of federal funds. 

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

Given that the language of the statute does not 

contradict the existence of a private cause of action, it 

is appropriate to apply all the Cort factors. The first 

question is whether plaintiff is in the class for whose 

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

indicates that Congress intended to grant access to the 

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

Therefore, plaintiff is within the appropriate class. Cort, 

supra at 79. 

The second question, whether there is any indication 

that Congress intended to create or to deny a private right 

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

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

action. There is no legislative history or other material 

contradicting this intent. 

The third question is whether it is consistent with 

the underlying legislative scheme to infer a private right 

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

overall purpose of the Head Start Act is to promote school

11 
readiness. 42 USC 9831. As part of its plan to reach this 

goal, Congress expressed an intent to maintain open 

accountability in the use of public funds in 42 USC 

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

Congress provided the public with a right of access to 

books and records. Inferring a right of action to 

implement this right enforces that intent. Therefore, 

inferring a right of action is consistent with the 

legislative scheme. 

Finally, there is no indication that this is a cause 

of action traditionally relegated to state law. And 

defendant makes no such argument. To the contrary, an 

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

which plaintiff could obtain the information it seeks. 

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

Cort factors, points to the need to recognize a private 

right of action under 42 USC 9839(a). 

Where a Legal Right Exists, so Does a Legal Remedy 

“The very essence of civil liberty certainly consists 

in the right of every individual to claim the protection of 

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

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

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

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

determined that Congress intended a right of action, courts

12 
presume the availability of all appropriate remedies unless 

Congress has expressly indicated otherwise. Franklin v 

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

L Ed 2d 208 (1992). 

In this case, a private right of action exists under 

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

viewing the records of the bids submitted for office 

supplies and furniture. Defendant makes no persuasive 

argument that viewing this information would be 

unreasonable. This proposed remedy is specifically 

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

allows for reasonable inspections of books and records. 

Therefore, Congress has not expressly indicated that this 

remedy is inappropriate. And the trial court did not err 

in granting it. 

I would affirm the decision of the Court of Appeals. 

Marilyn Kelly

Michael F. Cavanagh 

13