"appropriate equitable relief." 42 U.S.C. § 300bb-7. Mansfield argues that this difference in remedies is unfair to public sector employees and could not have been intended by Congress. (Pl. Resp. at 10). The court does not agree with Mansfield's argument.
When courts interpret statutes, the initial inquiry is the language of the statute itself. United States v. James, 478 U.S. 597, 604, 92 L. Ed. 2d 483, 106 S. Ct. 3116 (1986). If the language on the face of the statute is clear and unambiguous, courts will not look to legislative history determine the intent of Congress. Barnhill v. Johnson, 503 U.S. 393, 401, 118 L. Ed. 2d 39, 112 S. Ct. 1386 (1992); In Re McFarland, 84 F.3d 943, 947 (7th Cir. 1996). There is nothing ambiguous about ERISA's exemption of governmental plans. In fact, ERISA defines the governmental plan exemption with exceptional clarity.
Similarly, the COBRA amendments to the PHSA expressly recognize ERISA's exclusion of governmental plans and serve to fill this gap. See 42 U.S.C. § 300bb-1 (the PHSA governs group health plans of state governments); Williams, 970 F.2d at 1264 (PHSA intended to fill gap created by ERISA's governmental plan exemption). The PHSA is also unambiguous about the remedy it provides. Under 29 U.S.C. § 300bb-7, any person who is aggrieved by the failure of a state to comply with the requirements of the PHSA "may bring an action for appropriate equitable relief." Id. The PHSA therefore establishes a remedy for those who have been harmed by a state's failure to properly administer a group health plan.
That ERISA provides more extensive remedies to private sector employees than the PHSA provides to their public sector counterparts reflects a decision by Congress, and it is not this court's obligation to question that decision. While this decision may seem unfair to public sector employees, Congress had legitimate reasons for fashioning different remedies in ERISA and the PHSA. Congress considered applying ERISA to public pension plans, but "was reluctant to interfere with the administration of public retirement plans due to the resulting federalism implications." Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 448 (5th Cir. 1995); H.R. Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 4647. Because Congress excluded public sector employees from ERISA coverage, Mansfield's ERISA claim must be dismissed.
Finally, the parties devote portions of their briefs debating the availability of money damages under the PHSA. It is clear that the PHSA provides only "equitable relief," 42 U.S.C. § 300bb-7, and that equitable relief typically does not include money damages. See, e.g., Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1491 (7th Cir. 1996) (monetary damages do not constitute "equitable relief" under ERISA). However, equitable relief may include an award of money as restitution for pecuniary losses caused by a defendant, where such relief is necessary to make a plaintiff whole. In re Unisys Corp. Retiree Medical Benefit "ERISA" Litig., 57 F.3d 1255, 1267-69 (3d Cir. 1995); Reich v. Continental Casualty Co., 33 F.3d 754, 755-56 (7th Cir. 1994); UIU Severance Pay Trust Fund v. Local Union No. 18-U, 998 F.2d 509, 512-13 (7th Cir. 1993). Restitution includes the amount of medical expenses that were not reimbursed because of a plan's failure to notify a beneficiary of continuation coverage rights under COBRA. Hamilton v. Mecca, Inc., 930 F. Supp. 1540, 1553-54 (S.D. Ga. 1996). In this case, Mansfield may recover restitution for out of pocket medical expenses attributable to the Park District's alleged failure to notify him of his COBRA rights. Thus, the court dismisses all portions of Mansfield's complaint that seek monetary damages exceeding his out of pocket medical expenses that would have otherwise been covered by the defendant plan.
II. STATUTE OF LIMITATIONS
Having established that ERISA does not apply in this case, the court turns to the Park District's argument that Mansfield's PHSA claim is barred by the statute of limitations. Because the PHSA does not have a statute of limitations, the court should normally apply the most analogous state limitation period. Dell v. Board of Educ., 32 F.3d 1053, 1058 (7th Cir. 1994). "More recently, however, the Supreme Court has noted that federal courts may also borrow from another federal statute if that statute is clearly more analogous to the legislation than the state statutes." Id. (citing DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 171-72, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983).
The Park District argues that since Mansfield's suit is against an arm of the state, the most analogous statute is the Illinois Local Government and Local Governmental Employees Tort Immunity Act, 745 ILCS § 10/8-101 et seq.. ("Tort Immunity Act"). Under the Tort Immunity Act, a tort suit against a local governmental entity must be initiated one year after injury. Id. Thus, the Park District maintains that Mansfield did not timely file his lawsuit on May 31, 1995 for medical costs he incurred during 1993. The court does not agree with the Park District's assertion that the Tort Immunity Act is the most analogous statute.
ERISA is by far the most analogous statute to the PHSA. Thus, under Dell, 32 F.3d at 1058, the court will decide the PHSA statute of limitations question by using ERISA analysis. Like the PHSA, ERISA does not have an express limitations provision. When courts enforce limitations periods in ERISA cases, they characterize ERISA lawsuits as a contract action. Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1137 (7th Cir. 1992); Schroeder v. Phillips Petroleum Co., 970 F.2d 419, 420 (8th Cir. 1992) (per curiam); Meade v. Pension Appeals and Review Comm., 966 F.2d 190, 194-95 (6th Cir. 1992). Accordingly, courts look to the state statute of limitations for breach of written contracts. Tolle, 977 F.2d at 1137; Schroeder, 970 F.2d at 420; Jenkins v. Local 705 Int'l Bhd. of Teamsters Pension Plan, 713 F.2d 247, 250-52 (7th Cir. 1983). Illinois enforces a ten year statute of limitations on written contracts. 735 ILCS 5/13-206 (1995). Mansfield's complaint, filed just over two years after his cause of action accrued, falls well within this ten year period, thus his PHSA claim is not time-barred.
In any event, the Illinois Tort Immunity Act applies only to lawsuits brought under Illinois common law or an Illinois statute. 745 ILCS 10/8-101. Since Mansfield's claim is brought pursuant to the PHSA, a federal statute, the Tort Immunity Act does not apply to this case. Similarly, as Mansfield points out, application of the Tort Immunity Act is limited to tort actions. Firestone v. Fritz, 119 Ill. App. 3d 685, 456 N.E.2d 904, 75 Ill. Dec. 83 (Ill. App. Ct. 1983). Mansfield's PHSA claim is based in contract, not tort; thus the Illinois Tort Immunity Act does not apply to this case. The court therefore denies the Park District's motion to dismiss Mansfield's First Amended Complaint on statute of limitations grounds.
III. JURY TRIAL AND ATTORNEY FEES
The Park District's motion also seeks to dismiss those parts of Mansfield's complaint that seek a jury trial and attorney fees under the PHSA. Mansfield admits that "if the Court finds that ERISA has absolutely no applicability to his COBRA claims, Mansfield does not contest that generally trial by jury is not available on purely equitable claims under federal law." (Pl. Resp. at 11 n.4). The court agrees with and appreciates Mansfield's candid admission.
Research reveals no case law determining whether PHSA plaintiffs may obtain a jury trial. However, case law under ERISA is instructive. Both ERISA section 502 and the PHSA provide only "equitable relief." 42 U.S.C. § 300bb-6 (PHSA); 29 U.S.C. § 1132(a)(3)(B) (ERISA). As noted earlier, the "equitable relief" provision in ERISA does not provide jury trials for plaintiffs. Sullivan v. LTV Aerospace & Defense Co., 82 F.3d 1251, 1258 (2d Cir. 1996); Spinelli v. Gaughan, 12 F.3d 853, 858 (9th Cir. 1993); Wardle v. Central States, 627 F.2d 820, 830 (7th Cir. 1980). Following the logic employed by these courts holding that 29 U.S.C. § 1132(a)(3)(B) does not provide jury trials for ERISA plaintiffs, the court concludes that the PHSA does not afford jury trials.
The Park District also seeks to dismiss that portion of Mansfield's complaint that requests attorney fees. While ERISA contains an express provision that entitles prevailing plaintiffs to their attorney fees, 29 U.S.C. § 1132(g), the PHSA does not. This court will not read an attorney fees provision into the PHSA where none exists. At least one other court has also declined to allow attorney fees in a PHSA case. See Brett v. Jefferson Cty., 925 F. Supp. 786, 793-94 (S.D. Ga. 1996) (refusing to exercise inherent equitable powers to award attorney fees). That ERISA provides for attorney fees while the PHSA does not reflects congressional intent. ERISA demonstrates that where Congress wants to impose attorney fees on employers, it knows how to do so. In this case, absent any statutory or contractual authorization, the court presumes that the traditional American rule applies and the litigants must pay their own attorney fees. Hall v. Cole, 412 U.S. 1, 4-5, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973). Accordingly, that part of Mansfield's First Amended Complaint that seeks attorney fees is dismissed.
IV. SECTION 1983
The Park District argues that Mansfield's section 1983 claim must be dismissed because the PHSA provides "the exclusive federal remedy to vindicate governmental employees' COBRA rights." (Defs. Mot. at 5). Although the question is a difficult one, the court agrees with the Park District and therefore dismisses Mansfield's section 1983 claim.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.