S Camden Citizens v. NJ Dept Env Prot , 274 F.3d 771 ( 2001 )


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  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-17-2001
    S Camden Citizens v. NJ Dept Env Prot
    Precedential or Non-Precedential:
    Docket 01-2224
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/292
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    Filed December 17, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 01-2224 and 01-2296
    SOUTH CAMDEN CITIZENS IN ACTION;
    GENEVA SANDERS; PAULINE WOODS;
    BARBARA PFEIFER; JULITA GILLIARD;
    OSCAR LISBOA; SHIRLEY RIOS;
    PHYLLIS HOLMES; GWEN PETERSON;
    LATOYA COOPER; JULIO LUGO
    v.
    NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
    PROTECTION; ROBERT C. SHINN, JR.,
    Commissioner of the NJ Dept. of Environmental
    Protection, in his official capacity
    ST. LAWRENCE CEMENT CO., L.L.C.,
    Intervenor in D.C.,
    Appellant in No. 01-2224
    SOUTH CAMDEN CITIZENS IN ACTION;
    GENEVA SANDERS; PAULINE WOODS;
    BARBARA PFEIFER; JULITA GILLIARD;
    OSCAR LISBOA; SHIRLEY RIOS;
    PHYLLIS HOLMES; GWEN PETERSON;
    LATOYA COOPER; JULIO LUGO
    v.
    NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
    PROTECTION; ROBERT C. SHINN, JR.,
    Commissioner of the NJ Dept. of Environmental
    Protection, in his official capacity
    ST. LAWRENCE CEMENT CO., L.L.C.,
    Intervenor in D.C.,
    New Jersey Department of Environmental Protection;
    Robert C. Shinn, Jr.,
    Appellants in No. 01-2296
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civ. No. 01-00702)
    District Judge: Honorable Stephen M. Orlofsky
    Argued September 25, 2001
    BEFORE: MCKEE, AMBRO, and GREENBERG,
    Circuit Judges
    (Filed: December 17, 2001)
    Olga D. Pomar (argued)
    Camden Regional Legal Services
    745 Market Street
    Camden, NJ 08102
    Jerome Balter
    Michael Churchill (argued)
    Public Interest Law Center of
    Philadelphia
    125 South 9th Street
    Suite 700
    Philadelphia, PA 19107
    Luke W. Cole
    Center on Race, Poverty & The
    Environment
    631 Howard Street
    Suite 330
    San Francisco, CA 94114
    Attorneys for appellees
    South Camden Citizens in Action,
    Geneva Sanders, Pauline Woods,
    Barbara Pfeifer, Julita Gilliard,
    Oscar Lisboa, Shirley Rios, Phyllis
    Holmes, Gwen Peterson, Latoya
    Cooper, Julio Lugo
    2
    John J. Farmer, Jr.
    Attorney General
    Stefanie A. Brand (argued)
    Deputy Attorney General
    124 Halsey Street
    P.O. Box 45029
    Newark, NJ 07101
    James M. Murphy
    Patrick DeAlmeida
    Deputy Attorneys General
    Office of Attorney General of
    New Jersey
    Division of Law
    Richard J. Hughes Justice Complex
    P.O. Box 112
    Trenton, NJ 08625
    Attorneys for appellants
    New Jersey Department of
    Environmental Protection and
    Robert C. Shinn Jr.
    Brian S. Montag (argued)
    Catherine A. Trinkle
    Pitney, Hardin, Kipp & Szuch
    200 Campus Drive
    Florham Park, NJ 07932
    Attorneys for appellant
    St. Lawrence Cement Co.
    Robin S. Conrad
    National Chamber Litigation
    Center, Inc.
    1615 H Street, N.W.
    Washington, D.C. 200062
    Robert R. Gasaway
    Daryl Joseffer
    Kirkland & Ellis
    655 Fifteenth Street, N.W.
    Washington, D.C. 20036
    Attorneys for amicus curiae
    Chamber of Commerce of the
    United States
    3
    James M. Sheehan
    General Counsel
    Commonwealth of Pennsylvania
    Suite 225 Main Capitol Building
    Harrisburg, PA 17120
    Attorney for amicus curiae
    Commonwealth of Pennsylvania
    John P. Krill, Jr.
    Linda J. Shorey
    David R. Fine
    Kirkpatrick & Lockhart LLP
    240 North Third Street
    Harrisburg, PA 17101
    Attorneys for amici curiae
    Robert C. Jubelirer and Matthew J.
    Ryan
    Frederick F. Fitchett, III
    Jill Manuel-Coughlin
    Cureton Caplan Hunt
    Scaramella & Clark, P.C.
    950B Chester Avenue
    Delran, NJ 08075
    Attorneys for amicus curiae
    South Jersey Port Corporation
    Michael W. Steinberg
    Morgan, Lewis & Bockius LLP
    1800 M Street, N.W.
    Washington, D.C. 20036
    Attorneys for amici curiae
    National Association of
    Manufacturers, American Chemistry
    Council, and Chemistry Industry
    Council of New Jersey
    4
    Daniel J. Popeo
    Richard A. Samp
    Washington Legal Foundation
    2009 Massachusetts Ave., N.W.
    Washington, D.C. 20036
    Attorneys for amici curiae
    Washington Legal Foundation,
    National Black Chamber of
    Commerce, and Allied Educational
    Foundation
    Robert A. Matthews
    Lawrence J. Joseph
    McKenna & Cuneo, L.L.P.
    1900 K Street, N.W.
    Washington, D.C. 20006
    Attorneys for amicus curiae
    American Road & Transportation
    Builders Association
    John J. Gibbons
    Lawrence S. Lustberg
    Risa E. Kaufman
    Gibbons, Del Deo, Dolan,
    Griffinger & Vecchione
    One Riverfront Plaza
    Newark, NJ 07102
    Attorneys for amici curiae
    American Civil Liberties Union of
    New Jersey Foundation and
    American Civil Liberties Union of
    Pennsylvania
    5
    Lawrence W. Lindsay
    Justin T. Loughry
    Loughry and Lindsay, LLC
    309 Market Street
    Camden, NJ 08102
    Attorneys for amici curiae
    Bridge of Peace Community
    Church, Fettersville Neighborhood
    Task Force, Concerned Citizens of
    North Camden, The Greater
    Camden Unity Coalition,
    Leavenhouse, South Jersey
    Campaign for Peace and Justice,
    Gray Panthers of South Jersey,
    Dar Al Salaam/Africana Islamic
    Mission, New Jersey Environmental
    Federation, and Camden County
    Green Party
    Thomas Henderson, Esq.
    Janette L. Wipper, Esq.
    Lawyers' Committee for Civil Rights
    Under Law
    1408 New York Avenue, N.W.
    Washington, D.C. 20005-2124
    Robert J. Del Tufo
    Ellen O'Connell
    Skadden, Arps, Slate, Meagher &
    Flom LLP
    One Newark Center - 18th Floor
    Newark, NJ 07102
    Dennis Courtland Hayes
    National Association for the
    Advancement of
    Colored People
    4801 Mount Hope Road
    Baltimore, MD 21215
    Ronald Thompson
    Garden State Bar Association
    Law Office of Ronald Thompson
    213 South Harrison Street
    East Orange, NJ 07018
    6
    Ken Kimerling
    Margaret Fung
    Asian American Legal Defense
    and Education Fund
    99 Hudson Street - 12th Floor
    New York, NY 10013
    Elaine R. Jones
    Theodore M. Shaw
    Norman J. Chachkin
    NAACP Legal Defense &
    Educational Fund, Inc.
    99 Hudson Street, Suite 1600
    New York, NY 10013-2897
    Regina Waynes Joseph
    Garden State Bar Association
    320 South Harrison Street
    16th Floor
    East Orange, NJ 07018-1333
    Attorneys for amici curiae
    Lawyers' Committee for Civil Rights
    Under Law, National Association
    for the Advancement of Colored
    People, NAACP Legal Defense &
    Educational Fund, Inc., Asian
    American Legal Defense and
    Education Fund and Garden State
    Bar Association
    Bradford Mank
    University of Cincinnati
    College of Law
    P.O. Box 210040
    Cincinnati, OH 45221-0040
    Attorney for amici curiae
    Law Professors Concerned about
    Environmental Justice
    7
    Julie H. Hurwitz
    Alma L. Lowry
    National Lawyers' Guild/
    Maurice and
    Jane Sugar Law Center for
    Economic and
    Social Justice
    645 Griswold, Suite 1800
    Detroit, MI 48266
    Denise Hoffner-Brodsky
    The Sierra Club
    85 Second Street, 2nd Floor
    San Francisco, CA 94105
    Douglas W. Henkin
    Michele Host
    Milbank, Tweed, Hadley &
    McCloy, LLP
    1 Chase Manhattan Plaza
    New York, NY 10005-1413
    Attorneys for amici curiae
    Center for Constitutional Rights,
    Center for Law in the Public
    Interest, National Health Law
    Program, National Senior Citizens
    Law Center, New York City
    Coalition to End Lead Poisoning,
    New York Lawyers for the Public
    Interest, National Lawyers'
    Guild/Maurice and Jane Sugar
    Law Center for Social and
    Economic Justice, Puerto Rican
    Legal Defense and Education Fund,
    and the Sierra Club
    8
    Michelle B. Alvarez
    Mark A. Izeman
    Eric A. Goldstein
    Natural Resources Defense Council
    40 West 20th Street
    New York, NY 10011
    Attorneys for amici curiae
    Natural Resources Defense Council
    and Environmental Defense
    OPINION OF THE COURT
    GREENBERG, Circuit Judge:
    I. OVERVIEW
    This matter comes on before this court on appeals
    by defendant-appellant New Jersey Department of
    Environmental Protection ("NJDEP") and intervenor-
    appellant St. Lawrence Cement Co., L.L.C. ("St. Lawrence")
    from the district court's order granting preliminary
    injunctive relief to plaintiffs, South Camden Citizens in
    Action and ten residents of the Waterfront South
    neighborhood of Camden, New Jersey. Plaintiffs brought
    this action pursuant to 42 U.S.C. S 1983, as well as on
    other bases, claiming NJDEP discriminated against them by
    issuing an air permit to St. Lawrence to operate a facility
    that would have an adverse disparate racial impact upon
    them in violation of Title VI of the Civil Rights Act of 1964,
    42 U.S.C. SS 2000d to 2000d-7.
    Our opinion focuses on whether, following the Supreme
    Court's recent decision in Alexander v. Sandoval , 
    532 U.S. 275
    , 
    121 S. Ct. 1511
    (2001), plaintiffs can maintain this
    action under section 1983 for disparate impact
    discrimination in violation of Title VI and its implementing
    regulations. For the reasons we set forth, we hold that an
    administrative regulation cannot create an interest
    enforceable under section 1983 unless the interest already
    is implicit in the statute authorizing the regulation, and
    that inasmuch as Title VI proscribes only intentional
    9
    discrimination, the plaintiffs do not have a right enforceable
    through a 1983 action under the EPA's disparate impact
    discrimination regulations. Because the district court
    predicated its order granting injunctive relief on section
    1983, we will reverse.
    II. BACKGROUND AND PROCEDURAL HISTORY
    A. Background
    As we ultimately decide this appeal on a legal basis and
    the district court's opinions stated the facts at length, we
    only need summarize the factual background of this case.
    Initially, we point out that the residents of Waterfront
    South are predominately minorities and the neighborhood
    is disadvantaged environmentally.1 Waterfront South
    contains two Superfund sites, several contaminated and
    abandoned industrial sites, and many currently operating
    facilities, including chemical companies, waste facilities,
    food processing companies, automotive shops, and a
    petroleum coke transfer station. Moreover, NJDEP has
    granted permits for operation of a regional sewage
    treatment plant, a trash-to-steam incinerator and a co-
    generation power plant in the neighborhood. As a result,
    Waterfront South, though only one of 23 Camden
    neighborhoods, hosts 20% of the city's contaminated sites
    and, on average, has more than twice the number of
    facilities with permits to emit air pollution than exist in the
    area encompassed within a typical New Jersey zip code.
    St. Lawrence supplies cement materials, primarily to the
    ready-mix concrete industry. One aspect of St. Lawrence's
    business is the processing of ground granulated blast
    furnace slag ("GBFS"), a sand-like by-product of the steel-
    making industry, used in portland cement. In 1998, St.
    Lawrence wanted to open a GBFS grinding facility on a site
    in Camden owned by the South Jersey Port Corporation
    (the "Port"). In furtherance of this project, in March 1999
    St. Lawrence signed a lease with the Port for the site and
    initiated discussions with NJDEP with respect to obtaining
    _________________________________________________________________
    1. The Waterfront South community is comprised of 63% African-
    American, 28.3% Hispanic, and 9% white residents.
    10
    construction and operation permits for the facility,
    primarily focusing on the air permit that required
    minimizing the emission of PM10, i.e., particulate matter
    with a diameter of 10 microns or less. NJDEP required St.
    Lawrence to conduct an air quality impact analysis for
    PM10 confirming that there would not be adverse health
    impacts from operation of the facility and that St.
    Lawrence's operations complied with the National Ambient
    Air Quality Standards for PM10. St. Lawrence completed
    the analysis, and NJDEP accepted the result that the
    facility's emissions would satisfy the established standards
    applicable to its operation.
    On November 1, 1999, NJDEP notified St. Lawrence that
    the permit process was "administratively complete."
    Accordingly, NJDEP permitted St. Lawrence to begin
    construction of the facility, which it did in late 1999. Then,
    on July 25, 2000, NJDEP gave notice of a public hearing to
    be held on August 23, 2000, addressing St. Lawrence's
    draft air permit. NJDEP stated, however, that it would
    accept written comments on the draft permit until August
    31, 2000. Approximately 120 community members voiced
    their opinions and concerns about St. Lawrence's facility at
    the hearing, and several individuals provided NJDEP with
    written comments.
    Thereafter, NJDEP issued a 33-page "Hearing Officer's
    Report Responses to Public Comments on the Draft Air
    Permit" for St. Lawrence. In the report, NJDEP addressed
    the concerns raised by community members, including
    environmental equity/environmental justice, preexisting
    local environmental issues, St. Lawrence's emission limits,
    the results of St. Lawrence's air quality impact analysis,
    truck emission standards and carbon monoxide air quality
    evaluation results, and the protection of the health and
    safety of Waterfront South residents. Plaintiffs, however,
    filed an administrative complaint with the EPA and a
    request for a grievance hearing with NJDEP, as they alleged
    that NJDEP's permit review procedures violated Title VI of
    the Civil Rights Act of 1964 because the procedures did not
    include an analysis of the allegedly racially disparate
    adverse impact of the facility. NJDEP did not respond to the
    grievance hearing request, and on October 31, 2000, issued
    St. Lawrence's final air permit.
    11
    B. Procedural History
    On February 13, 2001, plaintiffs filed a complaint against
    NJDEP and NJDEP Commissioner Robert C. Shinn, Jr.,
    alleging that they violated Title VI by intentionally
    discriminating against them in violation of section 601, 42
    U.S.C. S 2000d, by issuing the air quality permit and
    further asserting that the facility in operation under the air
    permit would have an adverse disparate impact on them in
    violation of section 602, 42 U.S.C. S 2000d-1. St. Lawrence
    subsequently intervened with the consent of the parties.
    Following the submission of briefs and expert reports and
    oral argument, the district court issued an opinion and
    order on April 19, 2001, granting plaintiffs' request for a
    preliminary injunction. See South Camden Citizens in Action
    v. N.J. Dep't of Envtl. Prot., 
    145 F. Supp. 2d 446
    , 505
    (D.N.J. 2001) ("South Camden I"). In reaching its
    conclusions, the court found that section 602 and its
    implementing regulations contained an implied private right
    of action. Therefore, inasmuch as the court found that
    plaintiffs otherwise were entitled to relief based on their
    disparate impact claim, it remanded the matter to NJDEP
    for a Title VI analysis. See 
    id. at 473-84,
    505.
    South Camden I, however, had a short shelf life. On April
    24, 2001, the Supreme Court issued its decision in
    Sandoval, 
    532 U.S. 275
    , 
    121 S. Ct. 1511
    , holding that
    "[n]either as originally enacted nor as later amended does
    Title VI display an intent to create a freestanding private
    right of action to enforce regulations promulgated under
    S 602. We therefore hold that no such right of action
    exists." Id. at ___, 121 S.Ct. at 1523 (footnote omitted).
    Obviously, Sandoval eliminated the basis for the court's
    injunction in South Camden I, an effect that led St.
    Lawrence to move to dissolve the injunction. The district
    court, however, denied the motion, following which St.
    Lawrence again sought similar relief or a stay of the
    injunction pending appeal. The district court then allowed
    plaintiffs to amend their complaint to add a claim to
    enforce section 602 through section 1983. The court also
    required supplemental briefing on plaintiffs' remaining
    claims, namely, whether plaintiffs' intentional
    discrimination charge and/or their section 1983 claim
    12
    could provide an alternate basis for relief. On May 10,
    2001, the court issued a supplemental opinion and order
    continuing the preliminary injunction based on plaintiffs'
    section 1983 claim and again remanding the matter to
    NJDEP for a Title VI analysis. See South Camden Citizens
    in Action v. N.J. Dep't of Envtl. Prot., 
    145 F. Supp. 2d 505
    (D.N.J. 2001) (South Camden II). In reaching its result the
    court relied, inter alia, on Powell v. Ridge, 
    189 F.3d 387
    ,
    403 (3d Cir.), cert. denied, 
    528 U.S. 1046
    , 
    120 S. Ct. 579
    (1999), in which we held that there was a private right of
    action available to enforce a regulation implementing Title
    VI and that a disparate impact discrimination claim could
    be maintained under section 1983 for a violation of a
    regulation promulgated pursuant to section 602. See South
    Camden 
    II, 145 F. Supp. 2d at 520
    , 525, 543. Immediately
    thereafter, St. Lawrence unsuccessfully moved in the
    district court for a stay of the preliminary injunction
    pending appeal.
    St. Lawrence appealed to this court, and on May 15,
    2001, filed with us a motion to suspend or, in the
    alternative, to modify the preliminary injunction pending
    appeal, as well as a request for expedited review of the
    appeal. On May 29, 2001, NJDEP requested a stay of the
    remand process from the district court, but on June 4,
    2001, the district court denied that request. NJDEP then
    made the same application to this court on June 6, 2001,
    but we denied its motion on June 11, 2001. On June 12,
    2001, however, we granted St. Lawrence's request for
    expedited review, and on June 15, 2001, we granted St.
    Lawrence's request to suspend the preliminary injunction
    pending appeal.
    III. DISCUSSION
    As we have indicated, plaintiffs in their amended
    complaint sought an injunction under section 1983
    preventing operation of St. Lawrence's GBFS grinding
    facility.2 The district court found that plaintiffs stated a
    _________________________________________________________________
    2. The district court had jurisdiction over this matter pursuant to 28
    U.S.C. SS 1331, 1343, and we have jurisdiction pursuant to 28 U.S.C.
    S 1292(a)(1).
    13
    claim under section 1983 against NJDEP for violating
    section 602 and its implementing regulations by failing to
    consider the potentially adverse discriminatory impact of
    permitting operation of the facility, and therefore enjoined
    its operation until NJDEP made such a determination. 3 We
    review the district court's order granting a preliminary
    injunction for abuse of discretion, although we review
    factual findings for clear error and questions of law de
    novo. See AT&T v. Winback and Conserve Program, Inc., 
    42 F.3d 1421
    , 1426-27 (3d Cir. 1994).
    We often have recognized that injunctive relief,
    particularly preliminary relief, is an "extraordinary remedy
    . . . which should be granted only in limited
    circumstances." 
    Id. (citation omitted).
    To obtain a
    preliminary injunction, the moving party must
    demonstrate: (1) the reasonable probability of eventual
    success in the litigation, and (2) that it will be irreparably
    injured if relief is not granted. Moreover, the district court
    also should take into account, when relevant, (3) the
    possibility of harm to other interested persons from the
    grant or denial of the injunction, and (4) the public interest.
    See In re Arthur Treacher's Franchisee Litig., 
    689 F.2d 1137
    ,
    1143 (3d Cir. 1982). Thus, "a failure to show a likelihood of
    success or a failure to demonstrate irreparable injury must
    necessarily result in the denial of a preliminary injunction."
    
    Id. at 1143.
    We first consider the probability of plaintiffs' success in
    the litigation and, indeed, as we find that their case is
    legally insufficient, we will go no further. Naturally, in view
    of Sandoval, the overarching legal issue on this appeal is
    whether plaintiffs can advance a cause of action to enforce
    section 602 of Title VI and its implementing regulations
    through section 1983. If they cannot, then the only basis
    on which they can obtain relief is to demonstrate that the
    NJDEP engaged in intentional discrimination, a possibility
    that we do not address on this appeal.
    _________________________________________________________________
    3. The parties agree that the NJDEP receives grants of federal financial
    assistance so as to be subject to Title VI of the Civil Rights Act of
    1964,
    including sections 601 and 602.
    14
    We start our legal analysis with a consideration of
    Sandoval in which the Court held that a private right of
    action is not available to enforce disparate impact
    regulations promulgated under Title VI,4 thus overruling
    Powell at least to the extent that it held to the contrary. See
    Sandoval, 532 U.S. at ___, 121 S. Ct. at 1523. In Sandoval,
    _________________________________________________________________
    4. We have set forth conditions that can lead to the recognition of a
    private right of action not explicitly created as follows:
    When a statute does not explicitly supply a private right of
    action,
    two occasionally intersecting avenues may be explored for a
    possible
    private right of enforcement. First, an implied private right of
    action
    to enforce the statute may exist directly under the statute in
    accordance with the four-factor analysis of Cort v. Ash, 
    422 U.S. 66
    ,
    78, 
    95 S. Ct. 2080
    , 2088 (1975). To establish an implied private
    right
    of action under Cort v. Ash, the plaintiff must satisfy the first
    requirement--that the statute creates a federal right in favor of
    the
    plaintiff. The plaintiff must then satisfy the three remaining Cort
    v.
    Ash requirements relating to the existence of a remedy--that
    Congress intended to create a remedy, that the remedy is consistent
    with the legislative scheme, and that the cause of action is not
    traditionally relegated to state law. In sum, under Cort v. Ash the
    plaintiff bears the burden of establishing not only the existence
    of a
    right, but also the existence of an intended private remedy.
    In appropriate cases, the second avenue for private enforcement of
    a federal statute is S 1983. In determining whether a private right
    of
    action exists under S 1983, only two inquiries are relevant: one,
    whether the statute alleged to have been violated creates a federal
    right in favor of the plaintiff, and the other, whether Congress
    has
    foreclosed the remedy of private enforcement. TheS 1983 analysis
    intersects with the Cort v. Ash analysis insofar as the plaintiff
    under
    both analyses must establish the creation of a federal right. With
    respect to the existence of a remedy, however, the contrast between
    the two analyses is stark. Under Cort v. Ash the plaintiff must
    establish that Congress intended the remedy. UnderS 1983
    analysis, on the other hand, once a federal right is established,
    the
    existence of a remedy is presumed because S 1983 itself provides
    the
    authorization for private enforcement. The burden is on the
    defendant to establish that Congress intended to foreclose private
    enforcement.
    W. Va. Univ. Hosp. v. Casey, 
    885 F.2d 11
    , 18 n.1 (3d Cir. 1989). In
    Sandoval, the Court focused exclusively on whether Congress had
    created a federal right in favor of the plaintiff, the same essential
    question at issue here.
    15
    the Court considered a challenge to the Alabama
    Department of Public Safety's official policy of administering
    its driver's license examination only in English as violative
    of Title VI and its implementing regulations. See id. at ___,
    121 S.Ct. at 1515. The Court held that "[n]either as
    originally enacted nor as later amended does Title VI
    display an intent to create a freestanding private right of
    action to enforce regulations promulgated underS 602. We
    therefore hold that no such right of action exists." Id. at
    ___, 121 S.Ct. at 1523. *In reaching its result in Sandoval,
    the Court began by listing three aspects of Title VI that
    "must be taken as given": (1) private individuals may sue to
    enforce section 601 of Title VI and obtain both injunctive
    relief and damages; (2) section 601 prohibits only
    intentional discrimination; and (3) for the purposes of the
    case, regulations promulgated pursuant to section 602
    validly may proscribe disparate impact discrimination even
    though it is permissible under section 601. See id. at ___,
    121 S.Ct. at 1516-17. Then, the Court considered whether
    section 602 regulations conferred a private right of action,
    looking to its precedent interpreting Title VI and to the text
    and structure of Title VI. See id. at ___, 121 S.Ct. at 1519.
    First, the Court noted, based on its analysis of its holdings
    in its prior Title VI cases, that it previously had not held
    that there is such a private right of action under section
    602. See id. at ___, 121 S.Ct. at 1517-21 (citing Lau v.
    Nichols, 
    414 U.S. 563
    , 
    94 S. Ct. 786
    (1974) (holding that
    section 601 prohibits disparate impact discrimination);
    Cannon v. Univ. of Chicago, 
    441 U.S. 677
    , 694, 
    99 S. Ct. 1946
    , 1956 (1979) (holding that private right of action
    exists to enforce Title IX, which is patterned after Title VI);
    Regents of Univ. of Cal. v. Bakke, 
    438 U.S. 265
    , 287, 
    98 S. Ct. 2733
    , 2746 (1978) (holding, contrary to Lau, that
    section 601 proscribes only those classifications that would
    violate the Equal Protection Clause of the Fifth Amendment,
    namely intentional discrimination); Guardians Ass'n v. Civil
    Serv. Comm'n, 
    463 U.S. 582
    , 
    103 S. Ct. 3221
    (1983)
    (affirming Bakke's holding that section 601 prohibits only
    intentional discrimination); Alexander v. Choate , 
    469 U.S. 287
    , 293, 
    105 S. Ct. 712
    , 716 (1985) (same)).
    The Court then found that section 602's text and
    structure did not evince an intent to create a private right
    16
    of action and that the regulations alone were insufficient to
    create a private right of action. See id. at ___, 121 S.Ct. at
    1520-22 ("Language in a regulation may invoke a private
    right of action that Congress through statutory text created,
    but it may not create a right that Congress has not.").
    Therefore, the Court held that a private right of action was
    not available to enforce regulations promulgated under
    section 602. See id. at ___, 121 S.Ct. at 1523. However,
    inasmuch as the plaintiffs in Sandoval did not advance a
    cause of action under section 1983 to enforce Title VI and
    its implementing regulations, the majority did not consider
    whether such an action is available.5
    Resolution of this issue, therefore, requires us to examine
    whether disparate impact regulations promulgated
    pursuant to section 602 may, and if so do, create a right
    that may be enforced through a section 1983 action.
    Section 1983 provides, in relevant part:
    Every person who, under color of any statute,
    ordinance, regulation, custom, or usage, of any State
    or Territory or 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
    _________________________________________________________________
    5. In his dissent, Justice Stevens stated the following with regard to
    section 1983:
    [T]o the extent that the majority denies relief to the respondents
    merely because they neglected to mention 42 U.S.C.S 1983 in
    framing their Title VI claim, this case is something of a sport.
    Litigants who in the future wish to enforce the Title VI
    regulations
    against state actors in all likelihood must only reference S 1983
    to
    obtain relief; indeed, the plaintiffs in this case (or other
    similarly
    situated individuals) presumably retain the option of re-
    challenging
    Alabama's English-only policy in a complaint that invokes S 1983
    even after today's decision.
    Sandoval, 532 U.S. at ___, 121 S.Ct. at 1527 (Stevens, J., dissenting).
    The majority does not address the dissent's statement. Nevertheless, for
    the reasons that follow, we conclude that the majority's opinion and
    Supreme Court precedent do not permit the bringing of the section 1983
    action that Justice Stevens suggested is available.
    17
    the party injured in any action at law, suit in equity, or
    other proper proceeding for redress.
    Therefore, section 1983 provides a remedy for deprivation
    under color of state law of "any rights . . . secured by the
    Constitution and laws." In Maine v. Thiboutot , 
    448 U.S. 1
    ,
    6-8, 
    100 S. Ct. 2504
    , 2505-06 (1980), the Supreme Court
    interpreted this language and held that causes of action
    under section 1983 are not limited to claims based on
    constitutional or equal rights violations. Rather, certain
    rights created under federal statutes are enforceable
    through section 1983 as well. This rule, however, is limited
    by two well-recognized exceptions. First, a section 1983
    remedy is not available "where Congress has foreclosed
    such enforcement of the statute in the enactment itself."
    Wright v. City of Roanoke Redevelopment & Hous. Auth.,
    
    479 U.S. 418
    , 423, 
    107 S. Ct. 766
    , 770 (1987). Second, the
    remedy is not available "where the statute did not create
    enforceable rights, privileges, or immunities within the
    meaning of S 1983." 
    Id. The Supreme
    Court has established a three-part test to
    determine whether a federal statute creates an individual
    right enforceable through a section 1983 action:
    First, Congress must have intended that the provision
    in question benefit the plaintiff. Second, the plaintiff
    must demonstrate that the right assertedly protected
    by the statute is not so `vague and amorphous' that its
    enforcement would strain judicial competence. Third,
    the statute must unambiguously impose a binding
    obligation on the States. In other words, the provision
    giving rise to the asserted right must be couched in
    mandatory, rather than precatory, terms.
    Blessing v. Freestone, 
    520 U.S. 329
    , 340-41, 
    117 S. Ct. 1353
    , 1359-60 (1997). If a plaintiff satisfies each of these
    elements, and therefore establishes and identifies a federal
    right that allegedly has been violated, a rebuttable
    presumption that the right is enforceable through
    section 1983 arises. See 
    id. at 341,
    117 S.Ct. at 1360; see
    also Banks v. Dallas Housing Auth., 
    271 F.3d 605
    , 
    2001 WL 1285391
    , at *4 (5th Cir. Oct. 24, 2001). We have found two
    circumstances, which in harmony with Wright, are
    18
    sufficient to rebut this presumption: where "Congress
    specifically foreclosed a remedy under S 1983,[either]
    expressly, by forbidding recourse to S 1983 in the statute
    itself, or impliedly, by creating a comprehensive
    enforcement scheme that is incompatible with individual
    enforcement under S 1983." 
    Powell, 189 F.3d at 401
    (citations omitted). In the former case, the plaintiff 's claim
    must fail. In the latter case, however, the burden shifts to
    the defendant to "make the difficult showing that allowing
    a S 1983 action to go forward in these circumstances `would
    be inconsistent with Congress' carefully tailored scheme.' "
    
    Id. (quoting Blessing,
    520 U.S. at 
    346, 117 S. Ct. at 1362
    ).
    Here, plaintiffs seek to enforce a prohibition on disparate
    impact discrimination that does not appear explicitly in
    Title VI, but rather is set forth in EPA regulations. They
    contend that the regulations are a valid interpretation of
    Title VI.6 Section 601 of Title VI provides:
    No person in the United States 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 receiving Federal financial assistance.
    42 U.S.C. S 2000d. Section 602 provides, in relevant part:
    Each Federal department and agency which is
    empowered to extend Federal financial assistance to
    any program or activity, by way of grant, loan, or
    contract other than a contract of insurance or
    guaranty, is authorized and directed to effectuate the
    provisions of section 2000d [Section 601] of this title
    with respect to such program or activity by issuing
    rules, regulations, or orders of general applicability
    which shall be consistent with achievement of the
    _________________________________________________________________
    6. We assume without deciding that the regulations are valid, as neither
    NJDEP nor St. Lawrence timely challenged them in the district court and
    our analysis does not turn on their validity. That being said, like the
    Court stated in Sandoval, we observe that there does seem to be
    considerable tension between the section 602 regulations proscribing
    activities that have a disparate impact and section 601's limitation to
    interdiction only of intentionally discriminatory activities. See
    Sandoval,
    532 U.S. at ___, 121 S.Ct. at 1517.
    19
    objectives of the statute authorizing financial
    assistance in connection with which the action is
    taken.
    
    Id. S 2000d-1.
    Finally, the EPA regulations at issue provide:
    No person shall be excluded from participation in,
    be denied the benefits of, or be subjected to
    discrimination under any program or activity receiving
    EPA assistance on the basis of race, color, [or] national
    origin . . . .
    . . .
    A recipient shall not use criteria or methods of
    administering its program which have the effect of
    subjecting individuals to discrimination because of
    their race, color, national origin, or sex, or have the
    effect of defeating or substantially impairing
    accomplishment of the objectives of the program with
    respect to individuals of a particular race, color,
    national origin, or sex.
    40 C.F.R. SS 7.30 & 7.35(b). According to plaintiffs, these
    statutory provisions and their complementary regulations
    prohibiting discriminatory impacts in administering
    programs create a federal right enforceable through section
    1983.
    This contention raises the question of whether a
    regulation can create a right enforceable through section
    1983 where the alleged right does not appear explicitly in
    the statute, but only appears in the regulation. The district
    court found that the Supreme Court, as well as this court,
    have found that a regulation may create an enforceable
    right, see South Camden 
    II, 145 F. Supp. 2d at 526-27
    (citing 
    Wright, 479 U.S. at 418
    , 107 S.Ct. at 766; W. Va.
    Univ. Hosp. v. Casey, 
    885 F.2d 11
    , 18 (3d Cir. 1989);
    Alexander v. Polk, 
    750 F.2d 250
    (3d Cir. 1984)), and
    therefore concluded that the three-prong Blessing test
    applied to determine whether the EPA regulations indeed
    created a federal right. See 
    id. at 529.
    For the reasons that
    follow, however, we are satisfied that the district court's
    conclusion was erroneous. Thus, as the plaintiffs do not
    advance any federal right to enforce, the district court erred
    in granting relief on the basis of section 1983.
    20
    In considering whether a regulation in itself can establish
    a right enforceable under section 1983, we initially point
    out that a majority of the Supreme Court never has stated
    expressly that a valid regulation can create such a right. In
    Guardians Ass'n Justice Stevens, joined by Justices
    Brennan and Blackmun, wrote: "[I]t is clear that the S 1983
    remedy is intended to redress the deprivation of rights
    secured by all valid federal laws, including statutes and
    regulations having the force of law." See Guardians 
    Ass'n, 463 U.S. at 638
    , 103 S.Ct. at 3251. According to them, the
    rationale of Thiboutot applied equally to statutes and
    administrative regulations having the force of law. See 
    id. at 638
    n.6, 103 S. Ct. at 3251 
    n.6. But later in Wright, four
    Justices expressed the contrary view. See Wright , 479 U.S.
    at 
    437-38, 107 S. Ct. at 777-78
    (O'Connor, J., dissenting).
    Justice O'Connor, joined by Chief Justice Rehnquist,
    Justice Powell, and Justice Scalia, wrote in dissent:
    In the absence of any indication in the language,
    legislative history, or administrative interpretation of
    the Brooke Amendment that Congress intended to
    create an enforceable right to utilities, it is necessary to
    ask whether administrative regulations alone could
    create such a right. This is a troubling issue not
    briefed by the parties, and I do not attempt to resolve
    it here. The Court's questionable reasoning that,
    because for four years HUD gave somewhat less
    discretion to the PHA's in setting reasonable utilities
    allowances, HUD understood Congress to have required
    enforceable utility standards, apparently allows it to
    sidestep the question. I am concerned, however, that
    lurking behind the Court's analysis may be the view
    that, once it has been found that a statute creates
    some enforceable right, any regulation adopted within
    the purview of the statute creates rights enforceable in
    federal courts, regardless of whether Congress or the
    promulgating agency ever contemplated such a result.
    Thus, HUD's frequently changing views on how best to
    administer the provision of utilities to public housing
    tenants becomes the focal point for the creation and
    extinguishment of federal `rights.' Such a result, where
    determination of S 1983 `rights' has been unleashed
    21
    from any connection to congressional intent, is
    troubling indeed.
    
    Id. Notwithstanding the
    foregoing cautionary language, the
    district court relied on Wright in holding that federal
    regulations may create rights enforceable through section
    1983. In Wright, the plaintiffs alleged the housing authority
    violated a federal statute imposing a rent ceiling and the
    statute's implementing regulations which required public
    housing authorities to include a reasonable utility
    allowance in tenants' rent. See 
    id. at 419,
    107 S.Ct. at 768.
    The defendants argued that neither the statute nor the
    regulations gave the tenants a right enforceable through
    section 1983. See 
    id. at 429-30,
    107 S.Ct. at 773. In
    response, the Court stated:
    We perceive little substance in this claim. The Brooke
    Amendment could not be clearer: as further amended
    in 1981, tenants could be charged as rent no more and
    no less than 30 percent of their income. This was a
    mandatory limitation focusing on the individual family
    and its income. The intent to benefit tenants is
    undeniable. Nor is there any question that HUD
    interim regulations, in effect when this suit began,
    expressly required that a `reasonable' amount for
    utilities be included in rent that a PHA was allowed to
    charge, an interpretation to which HUD has adhered
    both before and after the adoption of the Brooke
    Amendment. HUD's view is entitled to deference as a
    valid interpretation of the statute, and Congress in the
    course of amending that provision, has not disagreed
    with it.
    Respondent nevertheless asserts that the provision
    for a `reasonable' allowance for utilities is too vague
    and amorphous to confer on tenants an enforceable
    `right' within the meaning of S 1983 and that the whole
    matter of utility allowances must be left to the
    discretion of the PHA, subject to supervision by HUD.
    The regulations, however, defining the statutory
    concept of `rent' as including utilities, have the force of
    law . . ., they specifically set out guidelines that the
    22
    PHAs were to follow in establishing utility allowances,
    and they require notice to tenants and an opportunity
    to comment on proposed allowances. In our view, the
    benefits Congress intended to confer on tenants are
    sufficiently specific and definite to qualify as
    enforceable rights under Pennhurst [State School &
    Hospital v. Halderman, 
    451 U.S. 1
    , 
    101 S. Ct. 1531
           (1981)] and S 1983, rights that are not, as respondent
    suggests, beyond the competence of the judiciary to
    enforce.
    
    Id. at 430-32,
    107 S.Ct. at 773-75 (footnotes omitted).7
    As we have indicated, the district court held, and the
    appellees argue here, that Wright stands for the proposition
    that valid federal regulations may create rights enforceable
    under section 1983, to which the Blessing analysis applies.
    Therefore, the appellees argue that because the EPA's
    section 602 regulations are valid and enforceable, we
    should apply the Blessing analysis and conclude that the
    regulations create rights enforceable through section 1983.
    The district court's holding was, however, erroneous
    because, as the foregoing quotation from the Court's
    opinion makes clear, Wright dealt with an issue that differs
    from that presented in the district court and here. There,
    the Court, in finding the statute and its implementing
    regulations created a right enforceable through section
    1983, focused on tying the right to a reasonable utility
    allowance to Congress' intent to create federal rights
    through the statute. The Court looked first to the statutory
    provision creating the ceiling on tenants' rent, describing it
    as "a mandatory limitation focusing on the individual family
    and its income." 
    Id. at 430,
    107 S.Ct. at 773-74. Further,
    it stated that Congress' intent with regard to the statute to
    benefit tenants was "undeniable." 
    Id. at 430,
    107 S.Ct. at
    774. Having reached this conclusion, it turned to the
    regulations and found that they were entitled to deference
    _________________________________________________________________
    7. The Court of Appeals for the Fifth Circuit recently in Banks v. Dallas
    Housing Authority, 
    271 F.3d 605
    , 
    2001 WL 1285391
    , at *4, indicated
    that a statutory obligation in 42 U.S.C. S 1437f(e) (repealed) to provide
    "decent, safe, and sanitary" housing was too vague to be judicially
    enforceable under section 1983, distinguishing Wright.
    23
    as valid administrative interpretations of the statute. 
    Id., 107 S.Ct.
    at 774. It afforded this deference, however, after
    having found that Congress had conferred upon plaintiffs
    that right by statute. 
    Id., 107 S.Ct.
    at 773.
    Clearly, therefore, the regulation at issue in Wright
    merely defined the specific right that Congress already had
    conferred through the statute. See 
    id. at 430
    n.11 & 
    431, 107 S. Ct. at 774
    & n.11 (rejecting "respondent's argument
    that the Brooke Amendment's rent ceiling applies only to
    the charge for shelter and that the HUD definition of rent
    as including a reasonable charge for utilities is not
    authorized by the statute" and stating regulations "defin[ed]
    the statutory concept of `rent' "). There should be no doubt
    on this point, for the Court plainly stated that"the benefits
    Congress intended to confer on tenants are sufficiently
    specific and definite to qualify as enforceable rights under
    Pennhurst and S 1983, rights that are not, as respondent
    suggests, beyond the competence of the judiciary to
    enforce." 
    Id. at 432,
    107 S.Ct. at 774-75 (emphasis added).
    Therefore, the Wright Court located the alleged right in the
    statutory provision and then relied upon the implementing
    regulations to define and interpret that right. Critically, as
    pertains to this case, Wright does not hold that a regulation
    alone--i.e., where the alleged right does not appear
    explicitly in the statute, but only appears in the regulation
    --may create an enforceable federal right. It is thus
    manifest that, inasmuch as the disparate impact
    regulations go far beyond the intentional discrimination
    interdiction in section 601, the district court's reliance on
    Wright was misplaced.
    Similarly, although also relied upon by the district court,
    none of our opinions in Alexander, Casey , or Powell nor
    that of the Court of Appeals for the Ninth Circuit in Buckley
    v. City of Redding, 
    66 F.3d 188
    (9th Cir. 1995), justifies the
    district court's conclusion that valid regulations may create
    rights enforceable under section 1983. In Alexander, we
    held that federal regulations governing the administration
    of the Supplemental Food Program for Women, Infants and
    Children created rights enforceable under section 1983 for
    recipients of program assistance. See Alexander , 750 F.2d
    at 261. But the right enforceable through section 1983,
    24
    namely notice of the right to a fair hearing upon
    termination of benefits, could be traced to and was
    consistent with the statute as it provided for cash grants to
    local agencies to enable them to carry out health and
    nutrition programs to make supplemental food available to
    pregnant and lactating women and infants. Accordingly, the
    statute created a right to supplemental food for those who
    qualified. See 
    id. at 253
    & n.3.
    We recognize that in Alexander we never expressly
    identified the right as stemming from the statute.
    Nevertheless we did not expressly analyze the question of
    whether a federal regulation could create an enforceable
    section 1983 right. Instead, after stating the general rule
    that violations of federal statutes may be actionable under
    section 1983 except where Congress has foreclosed section
    1983 enforcement or the statute does not create
    enforceable rights, we simply concluded that the regulation
    created an enforceable right. See 
    id. at 259.
    But Alexander did not involve a circumstance in which
    the regulations attempted to create a federal right beyond
    any that Congress intended to create in enacting the
    statute. Furthermore, we decided Alexander in 1984, well
    before the Supreme Court refined its analysis to focus
    directly on Congress' intent to create enforceable rights and
    to confine its holdings to the limits of that intent. See
    Blessing, 520 U.S. at 
    341, 117 S. Ct. at 1360
    -61
    (concentrating on Congress' intent to create rights in
    statute enforceable through section 1983); Suter v. Artist M.,
    
    503 U.S. 347
    , 357, 
    112 S. Ct. 1360
    , 1367 (1992) (same);
    Wilder v. Va. Hosp. Ass'n, 
    496 U.S. 498
    , 510, 
    110 S. Ct. 2510
    , 2517-18 (1990) (same); Golden State Transit Corp. v.
    City of Los Angeles, 
    493 U.S. 103
    , 110-11, 
    110 S. Ct. 444
    ,
    451 (1989) (same); Wright, 479 U.S. at 
    430, 107 S. Ct. at 774
    (focusing on Congress' intent to create rights in
    statute enforceable through section 1983, and finding
    implementing regulation defined right). Therefore,
    Alexander is distinguishable from this case.
    So, too, is Casey. There, we stated, citing only Wright and
    Alexander, that "valid federal regulations as well as federal
    statutes may create rights enforceable under section 1983."
    
    Casey, 885 F.2d at 18
    . The issue in Casey , however, was
    25
    only whether the federal Medicaid statute, not its
    implementing regulations, created a federal right
    enforceable through section 1983. See 
    id. at 17
    ("The
    threshold issue in this case is whether [the plaintiff] can
    assert a cause of action against the defendant state officials
    under 42 U.S.C. S 1983 for alleged violation of the federal
    medicaid statute."). Therefore, our broader statement was
    dicta not binding here.
    Plaintiffs place much reliance on Powell v. 
    Ridge, 189 F.3d at 403
    , in which we indicated that a disparate impact
    discrimination claim could be maintained under section
    1983 for a violation of a regulation promulgated pursuant
    to section 602. There, the plaintiffs brought a Title VI action
    against the Commonwealth of Pennsylvania, challenging its
    practices in funding public education on the ground that
    they had a racially discriminatory effect. See 
    id. at 391.
    On
    appeal, we considered, among other things, whether there
    was a private right of action available to enforce a
    regulation implementing Title VI, as well as whether a
    plaintiff can maintain a claim under section 1983 for a
    violation of that regulation. See 
    id. We answered
    both
    questions in the affirmative, stating that section 602 and
    the Department of Education regulation at issue provided a
    private right of action, and that plaintiffs also could utilize
    section 1983 to redress defendants' alleged violation of the
    statute and regulation. See 
    id. at 399-400,
    403.
    Powell, however, should not be overread. Initially, it held
    that section 602 and the regulations under it included a
    private right of action. Moreover, in then authorizing the
    section 1983 action we merely rejected three specific
    arguments: (1) that the individual defendants were not
    "persons" amenable to suit under section 1983; 8 (2) that
    Title VI possessed a comprehensive enforcement scheme
    that precluded the assertion of the section 1983 claim; and
    (3) that our precedents barring certain claims under Title IX
    of the Education Amendments of 1972 should have barred
    the action in Powell as well. See Powell , 189 F.3d at 400-
    03. But Powell did not analyze the foundation issue that is
    _________________________________________________________________
    8. On appeal, the defendants did not advance this argument even though
    the district court had relied on it. See Powell , 189 F.3d at 401.
    26
    central here, i.e., whether a regulation in itself can create a
    right enforceable under section 1983. In Powell , we seemed
    simply to assume for section 1983 purposes that it could.
    See 
    id. at 401
    ("Once a plaintiff has identified a federal
    right that has allegedly been violated, there arises a
    `rebuttable presumption that the right is enforceable under
    S 1983.' "). Thus, while plaintiffs rely heavily on Powell, that
    reliance is misplaced, and, accordingly, quite aside from the
    impact of Sandoval, Powell could not control the outcome
    here.9
    Similarly, the district court's reliance on Buckley was
    misplaced. The issue there was whether the Federal Aid in
    Sport Fish Restoration Act and its interpretive regulations
    created an enforceable federal statutory right under section
    1983. See 
    Buckley, 66 F.3d at 189-90
    . The court, after
    analyzing the relevant statutory and regulatory language,
    held that it did. See 
    id. at 193.
    Inasmuch as the court
    stated expressly that it was determining whether the federal
    statute and its implementing regulations conferred a
    section 1983 right and not whether such a right arose
    under the implementing regulations alone, Buckley is
    distinguishable. See also 
    Powell, 189 F.3d at 401
    ; Farley v.
    Philadelphia Hous. Auth., 
    102 F.3d 697
    , 699 (3d Cir. 1996)
    ("[The] cause of action arises strictly under[the statutory
    provision.] Regulation S 966.57(b) merely interprets that
    section."); Doe v. District of Columbia, 
    93 F.3d 861
    , 867
    _________________________________________________________________
    9. It cannot be argued plausibly that by holding in Powell that there was
    a private right of action under Title VI, we necessarily determined that
    the plaintiffs in Powell had a right enforceable under section 1983. Even
    if it could be so argued, however, the aspect of the opinion holding that
    there is a private right of action under Title VI did not survive Sandoval
    and thus the 1983 claim would not survive either. In any event, the
    district court in South Camden II did not determine that the plaintiffs
    had a right enforceable under section 1983 merely because in Powell we
    had determined that there was a private right of action enforceable
    under Title VI. Rather, the court in South Camden II made an
    independent examination of whether a section 1983 action was available,
    just as we do. Indeed, it hardly could have avoided making that analysis
    as it cited favorably Santiago v. Hernandez, 
    53 F. Supp. 2d 264
    , 268
    (E.D.N.Y. 1999), for the point that "[i]t is conceptually possible for
    plaintiff who is the intended beneficiary of a statute to have a S 1983
    action but not a private right of action, or vice versa . . . ."
    27
    (D.C. Cir. 1996) (analyzing both statute and its
    accompanying regulations in determining whether
    enforceable section 1983 right existed); Tony L. v. Childers,
    
    71 F.3d 1182
    , 1189 (6th Cir. 1995) (same); City of Chicago
    v. Lindley, 
    66 F.3d 819
    , 827 (7th Cir.1995) (same); Martinez
    v. Wilson, 
    32 F.3d 1415
    , 1421 & n.4 (9th Cir. 1994) (same);
    Howe v. Ellenbecker, 
    8 F.3d 1258
    , 1263 (8th Cir. 1993)
    (same), overruled by 
    Blessing, 520 U.S. at 348
    , 117 S.Ct. at
    1363; Albiston v. Me. Comm'r of Human Servs., 
    7 F.3d 258
    ,
    265 (1st Cir. 1993) (same), overruled by 
    Blessing, 520 U.S. at 348
    , 117 S.Ct. at 1363; Pinnacle Nursing Home v.
    Axelrod, 
    928 F.2d 1306
    , 1313-14 (2d Cir. 1991) (same);
    Samuels v. District of Columbia, 
    770 F.2d 184
    , 195 (D.C.
    Cir. 1985) (same).
    There are cases in other circuits addressing the question
    of whether a regulation alone may create a right enforceable
    under section 1983. The Courts of Appeals for the Fourth
    and Eleventh Circuits concluded that they may not and the
    Court of Appeals for the Sixth Circuit decided to the
    contrary. In Smith v. Kirk, 
    821 F.2d 980
    , 982 (4th Cir.
    1987), the court considered whether the state's use of an
    economic needs test on disabled persons requesting
    vocational rehabilitation services stated a cause of action
    under section 1983 for violations of the Social Security Act
    and its implementing regulations. After concluding that
    nothing in the statute created an entitlement to vocational
    rehabilitation services, the court addressed the plaintiff 's
    argument that the mandatory language utilized in the
    implementing regulations created such a right. See 
    id. at 984.
    The court rejected this claim, stating:
    An administrative regulation . . . cannot create an
    enforceable S 1983 interest not already implicit in the
    enforcing statute. The Supreme Court has never held
    that one could--to the contrary, members of the Court
    have expressed doubt that `administrative regulations
    alone could create such a right.'
    
    Id. (quoting Wright,
    479 U.S. at 
    437, 107 S. Ct. at 777
    (O'Conner, J., dissenting)). Therefore, the court affirmed the
    district court's dismissal of the plaintiff 's section 1983
    cause of action. See id.; see also Former Special Project
    Employees Ass'n v. City of Norfolk, 
    909 F.2d 89
    , 94 (4th
    28
    Cir. 1990) (following Smith and concluding that "because
    [the statutory provision] does not provide an enforceable
    right, the [administrative regulation is] irrelevant to our
    consideration of the employee's claim under section 1983").
    The Court of Appeals for the Eleventh Circuit reached a
    similar conclusion in Harris v. James, 
    127 F.3d 993
    (11th
    Cir. 1997). There, the court considered whether a Medicaid
    regulation requiring states to provide non-emergency
    transportation to and from providers created a right to such
    transportation enforceable under section 1983. See 
    id. at 996.
    The court began by reviewing the Supreme Court's
    precedent governing whether violations of federal statutes
    create section 1983 causes of action. See 
    id. at 997-1005.
    Then, the court turned to the specific question of whether
    the regulation created a federal right. See 
    id. at 1005.
    There, like here, the requirement plaintiffs sought to
    enforce "appear[ed] explicitly not in the Medicaid Act, but in
    a federal regulation," with the plaintiffs claiming that "the
    regulatory and statutory provisions create[d] a federal right
    to transportation to and from providers." 
    Id. The court
    rejected this argument. See 
    id. at 1009-10.
    In doing so, it first acknowledged the relative dearth of
    authority on this precise issue, noting that courts of
    appeals are split and that the Supreme Court never
    definitively addressed the matter. See 
    id. at 1005-07
    (citing
    
    Wright, 479 U.S. at 437-38
    , 107 S.Ct. at 777-78 (O'Conner,
    J., dissenting); Guardians 
    Ass'n, 463 U.S. at 638
    , 103 S.Ct.
    at 3251; Loschiavo v. City of Dearborn, 
    33 F.3d 548
    , 551
    (6th Cir. 1994); 
    Smith, 821 F.2d at 984
    ). The court then
    analyzed the majority opinion in Wright to ascertain
    whether it rejected the dissent's view of cases involving
    federal regulations, namely that administrative regulations
    alone cannot create enforceable federal rights, and found
    that it did not. See Harris v. 
    James, 127 F.3d at 1007-08
    ("We conclude that the Wright majority did not hold that
    federal rights are created either by regulations`alone' or by
    any valid administrative interpretation of a statute creating
    some enforceable right."). Therefore, the court rejected the
    argument that a " `federal right' [may be found] in any
    regulation that in its own right meets the three-prong
    `federal rights' test," as well as the argument that
    29
    "enforceable rights [may be found] in any valid
    administrative interpretation of a statute that creates some
    enforceable right." 
    Id. at 1008.
    Instead, it adopted the rule
    that:
    [S]o long as the statute itself confers a specific right
    upon the plaintiff, and a valid regulation merely further
    defines or fleshes out the content of that right, then the
    statute--`in conjunction with the regulation'--may
    create a federal right as further defined by the
    regulation.
    . . .
    [But], if the regulation defines the content of a
    statutory provision that creates no federal right under
    the three-prong test, or if the regulation goes beyond
    explicating the specific content of the statutory
    provision and imposes distinct obligations in order to
    further the broad objectives underlying the statutory
    provision, we think the regulation is too far removed
    from Congressional intent to constitute a `federal right'
    enforceable under S 1983. To hold otherwise would be
    inconsistent with the driving force of the Supreme
    Court precedent requiring a Congressional intent to
    create federal rights and with the Supreme Court's
    directive that courts must find that Congress has
    unambiguously conferred federal rights on the plaintiff.
    
    Id. at 1009
    (footnotes omitted).
    Applying this rule, the court concluded that the
    regulation did not define the content of any specific right
    conferred upon the plaintiffs by statute because the"nexus
    between the regulation and Congressional intent to create
    federal rights [was] simply too tenuous to create an
    enforceable right to transportation." 
    Id. at 1009
    -10. Finally,
    the court stated:
    It may be that each of these statutes creates some
    federal right; similarly, it may be that the
    transportation regulation is a valid interpretation of
    each of these provisions under Chevron. However, we
    do not think these two factors, even if we found both
    to be true, would add up to a federal right of
    30
    transportation. In each case the transportation
    regulation would be valid not because it reasonably
    defines the content of rights created by the statutory
    provisions, as did the regulation in Wright, but only
    because the regulation furthers the broad objectives
    underlying each statutory provision. . . . Instead, if the
    regulation is a valid interpretation of these provisions,
    it would be because transportation may be a
    reasonable means of ensuring the prompt provision of
    assistance, comparable assistance, or choice among
    providers. Such links to Congressional intent may be
    sufficient to support the validity of a regulation;
    however, we think they are too tenuous to support a
    conclusion that Congress has unambiguously
    conferred upon Medicaid recipients a federal right to
    transportation enforceable under S 1983.
    
    Id. at 1011-12
    (footnote omitted); see Kissimmee River
    Valley Sportsman Ass'n v. City of Lakeland, 
    250 F.3d 1324
    ,
    1327 (11th Cir. 2001) (applying Harris and concluding that
    "even more clearly . . . the instant regulation imposes new
    and `distinct obligations' not found in the statute itself, and
    thus is `too far removed from the Congressional intent to
    constitute a federal right enforceable under S 1983' "), cert.
    denied, 
    70 U.S.L.W. 3106
    (Nov. 26, 2001) (No. 01-204); Doe
    v. Chiles, 
    136 F.3d 709
    , 717 (11th Cir. 1998) (utilizing
    Harris analysis and finding federal right was created by
    statute and regulations that "further define[d] the contours
    of the statutory right" at issue).
    The Court of Appeals for the Sixth Circuit, however,
    reached the opposite result in Loschiavo. There, the court
    held that because administrative regulations have the force
    of law, they may create enforceable rights under section
    1983. See 
    Loschiavo, 33 F.3d at 551
    (citing Wright, 479
    U.S. at 
    431, 107 S. Ct. at 774
    ). Accordingly, the court
    concluded that the regulation at issue created a federal
    right enforceable through section 1983. See 
    id. at 552-53;
    see also Levin v. Childers, 
    101 F.3d 44
    , 47 (6th Cir. 1996)
    (stating Loschiavo court held "plaintiffs may use Section
    1983 to enforce not only constitutional rights, but also
    31
    those rights defined by federal statutes [and federal
    regulations]").10
    Nevertheless, in light of the foregoing analysis, we reject
    the Loschiavo approach. To start with, we reiterate that in
    Sandoval the Court made the critical point that"[l]anguage
    in a regulation may invoke a private right of action that
    Congress through statutory text created, but it may not
    create a right that Congress has not." 532 U.S. at ___, 121
    S.Ct. at 1522. Furthermore, as we noted previously, the
    Court's focus in Wright was on tying Congress' intent to
    create federal rights through the statute to the particular
    federal right claimed. See Wright, 479 U.S. at 
    430, 107 S. Ct. at 774
    ; 
    Harris, 127 F.3d at 1008-09
    . It was of
    paramount importance that Congress intended to create
    such a right in the statute, with the regulation then
    defining the right that Congress already conferred through
    the statute. See 
    Wright, 479 U.S. at 430
    n.11 & 
    431, 107 S. Ct. at 774
    & n.11; 
    Harris, 127 F.3d at 1008
    .
    Moreover, it is apparent that in the Court's section 1983
    jurisprudence after Wright dealing with whether a plaintiff
    is advancing an enforceable right, the primary
    consideration has been to determine if Congress intended
    to create the particular federal right sought to be enforced.
    See 
    Suter, 503 U.S. at 357
    , 112 S.Ct. at 1367 (stating issue
    as "[d]id Congress, in enacting the Adoption Act,
    unambiguously confer upon the child beneficiaries of the
    Act a right to enforce the requirement that the State make
    `reasonable efforts' to prevent a child from being removed
    from his home, and once removed to reunify the child with
    his family?"). Inasmuch as the Loschiavo court's approach
    first did not examine whether Congress intended to create
    the particular right at issue, we reject its holding that a
    federal right may be found in any federal regulation that, in
    its own right, meets the Blessing test.
    Therefore, we follow Wright, in accordance with its actual
    holding, the teaching of Sandoval, and the holdings in
    Harris and Smith, which we believe the courts of appeals
    _________________________________________________________________
    10. Of course, when the issue was raised in a district court within the
    Sixth Circuit the court followed Loschiavo. See Lucero v. Detroit Public
    Sch., 
    160 F. Supp. 2d 767
    , 781-85 (E.D. Mich. 2001).
    32
    decided correctly, and hold that the EPA's disparate impact
    regulations cannot create a federal right enforceable
    through section 1983. To the extent, if any, that Powell
    might be thought on a superficial reading to suggest
    otherwise, in the light of Sandoval we cannot regard it as
    stating controlling law. Since the time of the Supreme
    Court's decision in Sandoval, it hardly can be argued
    reasonably that the right alleged to exist in the EPA's
    regulations, namely to be free of disparate impact
    discrimination in the administration of programs or
    activities receiving EPA assistance, can be located in either
    section 601 or section 602 of Title VI.
    In reaching our result, we emphasize the following.
    Sandoval made it clear that section 601 proscribes
    intentional discrimination only. See Sandoval , 532 U.S. at
    ___, 121 S.Ct. at 1516. In discussing whether section 602
    and its implementing regulations created an implied right of
    action, the Court first considered whether Congress
    intended to create a federal right in favor of the plaintiffs.11
    See id. at ___, 121 S.Ct. at 1520 21. After reviewing the
    relevant language of section 602, the Court stated:
    _________________________________________________________________
    11. To adjudge whether an implied right of action exists under a
    particular statute, courts employ a four-factor test the Court first
    articulated in Cort v. Ash, 
    422 U.S. 66
    , 78, 
    95 S. Ct. 2080
    , 2088 (1975).
    As the Court explained in Cannon:
    In determining whether a private remedy is implicit in a statute
    not
    expressly providing one, several factors are relevant. First, is
    the
    plaintiff `one of the class for whose especial benefit the statute
    was
    enacted,' that is, does that 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 purpose of the
    legislative
    scheme to imply such a remedy for the plaintiffs? 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?
    
    Cannon, 441 U.S. at 688
    n.9, 99 S. Ct. at 1953 
    n.9 (quoting Tex. & Pac.
    R. Co. v. Rigsby, 
    241 U.S. 33
    , 39, 
    36 S. Ct. 482
    , 484 (1916)) (citations
    and emphasis omitted). Although not expressly, the Sandoval Court
    began, and ended, its analysis with the first factor, namely whether
    Congress intended to create a right in favor of the plaintiffs. See
    Sandoval, 532 U.S. at ___, 121 S.Ct. at 1520-21.
    33
    It is immediately clear that the `rights-creating'
    language so critical to the Court's analysis in Cannon
    of S 601, is completely absent from S 602. Whereas
    S 601 decrees that `[n]o person . . . shall . . . be
    subjected to discrimination,' the text of S 602 provides
    that `[e]ach Federal department and agency . . . is
    authorized and directed to effectuate the provisions of
    [S 601].' Far from displaying congressional intent to
    create new rights, S 602 limits agencies to
    `effectuat[ing]' rights already created byS 601. And the
    focus of S 602 is twice removed from the individuals
    who will ultimately benefit from Title VI's protection.
    Statutes that focus on the person regulated rather
    than the individuals protected create `no implication of
    an intent to confer rights on a particular class of
    persons.' Section 602 is yet a step further removed: it
    focuses neither on the individuals protected nor even
    on the funding recipients being regulated, but on the
    agencies that will do the regulating. . . . So far as we
    can tell, this authorizing portion of S 602 reveals no
    congressional intent to create a private right of action.
    Nor do the methods that S 602 goes on to provide for
    enforcing its authorized regulations manifest an intent
    to create a private remedy; if anything, they suggest
    the opposite. . . . Whatever these elaborate restrictions
    on agency enforcement may imply for the private
    enforcement of rights created outside ofS 602, they
    tend to contradict a congressional intent to create
    privately enforceable rights through S 602.
    Id. at ___, 121 S.Ct. at 1521 (citations omitted). Therefore,
    the Court found that there was no evidence of
    congressional intent to create new rights under section 602.
    See 
    id. Rather, "S
    602 limits agencies to`effectuat[ing]'
    rights already created by S 601."12 Id.
    _________________________________________________________________
    12. It is important to note that relying upon the Sandoval Court's
    assessment of Congress' intent in enacting section 602, set forth in the
    context of determining whether there is a private right of action for the
    purposes of determining whether an enforceable right exists, does not, as
    the district court found, conflate the distinction between rights and
    remedies. See South Camden 
    II, 145 F. Supp. 2d at 517
    ("The essence of
    34
    Inasmuch as the Court found previously that the only
    right conferred by section 601 was to be free of intentional
    discrimination, it does not follow that the right to be free
    from disparate impact discrimination can be located in
    section 602. In fact, it cannot. In sum, the regulations,
    though assumedly valid, are not based on any federal right
    present in the statute. Thus, this case is very similar to
    Smith and Harris. Here, as there, the regulations do more
    than define or flesh out the content of a specific right
    conferred upon the plaintiffs by Title VI. Instead, the
    regulations implement Title VI to give the statute a scope
    beyond that Congress contemplated, as Title VI does not
    establish a right to be free of disparate impact
    discrimination. Thus, the regulations are "too far removed
    from Congressional intent to constitute a `federal right'
    enforceable under S 1983." 
    Harris, 127 F.3d at 1009
    .
    Accordingly, if there is to be a private enforceable right
    under Title VI to be free from disparate impact
    discrimination, Congress, and not an administrative agency
    or a court, must create this right. In this regard, we point
    out what should be obvious: the scope of conduct subject
    to being interdicted by limitations on actions having a
    disparate impact is far broader than limitations on
    intentional discrimination. Thus, we reiterate that if Title VI
    _________________________________________________________________
    the NJDEP's and [St. Lawrence]'s misunderstanding of Sandoval lies in
    their conflation of rights with remedies in their analysis of the Supreme
    Court's holding in Sandoval."). It is true, as the district court
    repeatedly
    stated, that "[t]he holding in Sandoval is explicitly limited to the
    determination that S 602 itself does not create a right of private
    action,"
    or in other words, a remedy. 
    Id. at 518.
    It is also true, as the Sandoval
    Court stated and the district court emphasized, that this court is "bound
    by holdings, not language." Sandoval, 532 U.S. at ___, 121 S.Ct. at 1517.
    That being said, we are not precluded from utilizing the Court's
    discussion of Congress' intent in enacting Title VI, although raised in
    the
    context of whether Congress intended a remedy through section 602
    directly, to help it discern whether Congress intended to create a right
    that is enforceable through section 1983. Doing so respects the
    difference between the Cort implied-right-of-action analysis and the
    Blessing "rights" analysis because it relies upon the factor common to
    both.
    35
    is to go so far as to have the application that plaintiffs wish,
    Congress should take it there.
    We emphasize that the implications of this case are
    enormous and obviously, as the appearance of the many
    amici curiae attests, have not been lost on interested
    parties. It is plain that in view of the pervasiveness of state
    and local licensing provisions and the likely applicability of
    Title VI to the agencies involved, the district court's opinion
    has the potential, if followed elsewhere, to subject vast
    aspects of commercial activities to disparate impact
    analyses by the relevant agencies. Indeed, we noted in
    Powell that "[a]t least 40 federal agencies have adopted
    regulations that prohibit disparate-impact discrimination
    pursuant to [section 602]." 
    Powell, 189 F.3d at 393
    . While
    we do not express an opinion on whether that would be
    desirable, we do suggest that if it is to happen, then
    Congress and not a court should say so as a court's
    authority is to interpret rather than to make the law.13
    IV. CONCLUSION
    We sum up our conclusions as follows. The Supreme
    Court's primary concern in considering enforceability of
    federal claims under section 1983 has been to ensure that
    Congress intended to create the federal right being
    advanced. See 
    Suter, 503 U.S. at 357
    , 112 S.Ct. at 1367;
    Wright, 479 U.S. at 
    431, 107 S. Ct. at 774
    . Accordingly, we
    hold that a federal regulation alone may not create a right
    _________________________________________________________________
    13. St. Lawrence and NJDEP raise numerous other procedural and
    substantive arguments in support of their appeals. In view of our result,
    with one exception, we do not address them as the appeal is only from
    the granting of preliminary injunction that we are reversing on other
    grounds. Nevertheless, it is possible that on further proceedings the
    issues involved in those arguments may be significant and thus we want
    to make it clear that we are taking no position on those points. The one
    exception is NJDEP's argument that the Eleventh Amendment bars this
    action to the extent that it "prohibits the retrospective revocation of
    [St.
    Lawrence's] air permit." Br. at 44. We are constrained to consider this
    argument as it is jurisdictional. See Chittister v. Dep't of Cmty. and
    Econ.
    Dev., 
    226 F.3d 223
    , 227 (3d Cir. 2000). After careful consideration, we
    have concluded that the argument is without merit, and we therefore
    reject it without discussion.
    36
    enforceable through section 1983 not already found in the
    enforcing statute. Similarly, we reject the argument that
    enforceable rights may be found in any valid administrative
    implementation of a statute that in itself creates some
    enforceable right. Applying these rules here, it is clear that,
    particularly in light of Sandoval, Congress did not intend by
    adoption of Title VI to create a federal right to be free from
    disparate impact discrimination and that while the EPA's
    regulations on the point may be valid, they nevertheless do
    not create rights enforceable under section 1983. The
    district court erred as a matter of law in concluding
    otherwise and therefore also erred in finding that plaintiffs
    are likely to succeed on the merits of their claim.
    Consequently, we will reverse the district court's order of
    May 10, 2001, granting preliminary injunctive relief and
    will remand the case to the district court for further
    proceedings consistent with this opinion.
    37
    McKEE, Circuit Judge, dissenting:
    Plaintiffs seek to enforce regulations promulgated under
    S 602 of Title VI of the Civil Rights Act of 1963, 42 U.S.C.
    S 2000-1. The validity of those regulations is not in dispute
    here. The regulations are set forth at 40 C.F.R.S 7.10 et
    seq. and require the defendants to consider the potentially
    adverse disparate impact of air permits that St. Lawrence
    needs to operate the proposed facility.1
    The majority's decision to reverse the district court's
    grant of preliminary injunctive relief is based upon my
    colleagues' conclusion that the district court erred"as a
    matter of law . . . in finding that plaintiffs are likely to
    succeed on the merits of their claim." Maj. Op. at 37.
    However, our review here ought to be limited to determining
    if plaintiffs have established "a reasonable probability of
    succeeding on the merits. . . ." ACLU v. Reno , 
    217 F.3d 162
    , 173 (3d Cir. 2000) (emphasis added). We need look no
    further than our recent decision in Powell v. Ridge, (3d Cir.)
    cert denied, 
    528 U.S. 1046
    (1999) to find the answer to that
    question. The majority correctly notes that the Supreme
    Court's subsequent decision in Alexander v. Sandoval, 
    531 U.S. 1049
    (2001), overruled part of our holding in Powell.
    However, Powell was not overruled in its entirety until
    today. Ironically, the majority overrules Powell by engaging
    in an analysis that overreads Sandoval while cautioning
    that "Powell, . . . should not be overread." Maj. Op. at 26.
    Accordingly, I respectfully dissent from the decision of my
    colleagues.
    I.
    Before beginning my discussion I think it is important to
    define the parameters of our inquiry. First, "we must affirm
    unless we find the [district] court abused its discretion,
    _________________________________________________________________
    1. The extent to which plaintiffs have already suffered a disparate impact
    of pollution is readily apparent from the factual summary set forth by
    the majority. See Maj. Op. at 10 ("As a result, Waterfront South, though
    only one of 23 Camden neighborhoods, hosts 20% of the city's
    contaminated sites and, on average, has more than twice the number of
    facilities with permits to emit air pollution than exist in the area
    encompassed within a typical New Jersey zip code.").
    38
    committed an obvious error of law, or made a serious
    mistake in considering proof." Bill Blass, Ltd v. SAZ Corp, et
    al, 
    751 F.2d 152
    , 154 (3rd Cir. 1984) (emphasis added).
    Our analysis is not driven by factual issues. Accordingly,
    our inquiry turns on whether the district court committed
    an "obvious error of law." If it committed such an error, it
    abused its discretion in granting preliminary relief. If it did
    not commit such an error, preliminary relief was
    appropriate, and we must affirm. Second, there is no issue
    about the validity of the applicable regulations enacted
    pursuant to 42 U.S.C. S 602. The majority assumes they
    are valid, just as the Supreme Court did in Sandoval. Third,
    it has long been the rule in this Circuit that decisions
    made in similar cases by panels of this Court are
    binding on other panels . . . . [i]t is only through the
    Court En Banc that precedents established by earlier
    [published] panel decisions may be reexamined.
    In the Matter of The Central Railroad Co. of New Jersey, 
    485 F.2d 208
    , 210 (3rd Cir. 1974). See also Reich v. D.M. Sabia
    Co., 
    90 F.3d 854
    (3rd Cir. 1996).
    The majority concludes that the plaintiffs' action here is
    "legally insufficient" and that the district court therefore
    erred in granting preliminary injunctive relief, Maj. Op. at
    14, because the disparate impact regulations plaintiffs seek
    to enforce are "too far removed from Congressional intent to
    constitute a `federal right' enforceable underS 1983." 
    Id. at 35.
    Based upon that analysis, the majority concludes that
    plaintiffs have no reasonable probability of success on the
    merits and are therefore not entitled to injunctive relief.
    This analysis not only ignores controlling precedent, it
    overrules it.
    II.
    42 U.S.C. S 1983 provides:
    Every person who, under color of any statute,
    ordinance, regulation, custom, or usage, of any State
    or Territory or 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
    39
    deprivation of any rights, privileges, or immunities
    secured by the Constitution and laws, shall be liable to
    the party injured in any action at law, suit in equity, or
    other proper proceeding for redress.
    Section 601 of Title VI provides:
    No person in the United States 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 receiving Federal financial assistance.
    42 U.S.C. S 2000d. The Supreme Court has held that S 601
    only reaches intentional discrimination. See 
    Sandoval, 121 S. Ct. at 1516
    . However, S 602 authorizes federal regulatory
    agencies to promulgate regulations under Title VI.
    Section 602 provides, in relevant part:
    Each Federal department and agency which is
    empowered to extend Federal financial assistance to
    any program or activity, by way of grant, loan, or
    contract other than a contract of insurance or
    guaranty, is authorized and directed to effectuate the
    provisions of section 2000d [Section 601] of this title
    with respect to such program or activity by issuing
    rules, regulations, or orders of general applicability
    which shall be consistent with achievement of the
    objectives of the statute authorizing financial
    assistance in connection with which the action is
    taken.
    
    Id. S 2000d-1.
    The regulations at issue here were
    promulgated under S 602 and they proscribe discrimination
    that results from the disparate impact of certain activity.
    The Environmental Protection Agency is not alone in
    promulgating disparate-impact regulations underS 602. In
    Powell we noted that "[a]t least 40 federal agencies have
    adopted regulations that prohibit disparate-impact
    discrimination pursuant to this 
    authority." 189 F.3d at 393
    .
    We held in Powell, that the plaintiffs there could
    maintain an action under S 1983 to enforce disparate
    impact regulations promulgated under S 602 by the
    40
    Department of Education that are virtually identical to the
    regulations promulgated by the Environmental Protection
    Agency that are at issue here.2 Plaintiffs in Powell brought
    an action against state officials challenging the funding
    mechanism for public education. They alleged, inter alia,
    that the defendants' method of funding education in the
    Commonwealth of Pennsylvania had a racially
    discriminatory impact in violation of Title VI and its
    implementing regulations.
    The district court dismissed the complaint based upon its
    conclusion that the plaintiffs did not "adequately allege that
    a specific element of the Commonwealth's funding practices
    adversely and disproportionately affects students of a
    particular 
    race." 189 F.3d at 393
    . On appeal, the
    defendants asserted an alternative ground for upholding
    the district court. They argued that the Title VI regulations
    did not provide an enforceable right. We resolved that
    inquiry by applying the four prong test established in Cort
    v. Ash, 
    422 U.S. 66
    (1975), and a similar inquiry set forth
    in Angelastro v. Prudential-Bache Securities, Inc. 
    764 F.2d 939
    (3d Cir. 1985). See 
    Powell. 189 F.3d at 397
    ("It is by
    now well established that implication of a private right of
    action for a statute requires analysis of the factors set forth
    in Cort v. Ash."). We concluded that Title VI afforded
    plaintiffs a right to enforce the prohibition against disparate
    impact discrimination contained in the regulations
    promulgated pursuant to S 602 of Title VI. We stated:
    The regulation at issue here, although promulgated by
    the Department of Education under 602 of Title VI,
    implements S 601 of Title VI. The Supreme Court
    precedent and our cases firmly establish that S 601 of
    Title VI gives rise to an implied right of action, at least
    for our purposes for securing injunctive 
    relief. 189 F.3d at 399
    . We also concluded that the remaining
    prongs of the relevant inquiry were satisfied and held that
    _________________________________________________________________
    2. The regulation at issue in Powell was codified at 34 C.F.R.
    S 100.3(b)(2) and it prohibited recipients of applicable federal funds
    from
    "utilizing criteria or methods of administration which have the effect of
    subjecting individuals to discrimination because of their race, color,
    . . . 
    ." 189 F.3d at 393
    .
    41
    plaintiffs had therefore established "an implied private right
    of action to enforce the regulations promulgated under 602
    of Title VI." 
    Id. There is
    no question that that portion of our
    holding can not stand after the Supreme Court's
    pronouncement in Sandoval. That was the precise issue
    addressed in Sandoval and Powell was rendered a dead
    letter as to that issue. However, that was also the only
    issue decided in Sandoval. The Court's holding did not
    address Count II of the complaint that was before the court
    in Powell.
    In Powell, we explained: "[p]laintiffs' second count
    invokes one of the Civil Rights Acts, 42 U.S.C.S 1983 to
    address the defendants' alleged violation of the regulation."
    
    Id. We concluded
    that inasmuch as the complaint sought
    only injunctive and declaratory relief defendants were
    "persons acting under color of state law" under S 1983. 
    Id. at 401.
    We then cited Blessing v. Freestone, 
    520 U.S. 329
    (1997) in stating that "once a plaintiff has identified a
    federal right that has allegedly been violated, there arises a
    rebuttable presumption that the right is enforceable under
    S 1983.' 
    " 189 F.3d at 401
    . Inasmuch as the relevant
    statute did not explicitly foreclose a suit underS 1983, and
    since that statute clearly lacked a "comprehensive
    enforcement scheme that is incompatible with individual
    enforcement under S 1983," we concluded that plaintiffs
    could maintain an action to enforce the provisions of the
    regulations promulgated under S 602 by resorting to
    S 1983. We stated simply, "we see no reason to hold that
    resort to S 1983 has been foreclosed here." 
    Id. at 402.
    The majority seizes upon that articulation of our holding
    to minimize the effect of what we said. My colleagues state:
    "Powell did not analyze the foundation issue that is central
    here, i.e. whether a regulation in itself can create a right
    enforceable under section S 1983. In Powell we seemed
    simply to assume for section 1983 purposes that it could."
    Maj. Op. at 26-27. My colleagues then cite to Powell at 401
    and note that we there stated, "Once a plaintiff has
    identified a federal right that has allegedly been violated,
    there arises a `rebuttable presumption that the right is
    enforceable under S 1983." Maj. Op. 27. I am frankly
    astounded by that analytical alchemy. The rebuttable
    42
    presumption we referred to in Powell arises not because we
    "assumed" a cause of action under S 1983, but precisely
    because we held there was a cause of action under S 1983.
    See 
    Blessing, 520 U.S. at 1359
    . In Blessing , the Court was
    asked to determine if a plaintiff could enforce a right under
    S 1983. That was the issue, and it was the only issue. The
    Court stated, "We granted certiorari to resolve disagreement
    among the Courts of Appeals as to whether individuals may
    sue state officials under S 1983 for violations of Title IV-D."
    
    Id. at 339-40.
    The Court began that inquiry by citing Maine
    v. Thiboutot, 
    448 U.S. 1
    (1980), wherein the Court had held
    that S 1983 provided a remedy for violations of federal
    rights, not federal laws. The Blessing Court could not have
    been clearer in stating: "[i]n order to seek redress through
    S 1983, however, a plaintiff must assert the violation of a
    federal right, not merely a violation of federal law." 
    Blessing, 520 U.S. at 340
    (emphasis in original). The Court then
    applied the three factor test set forth in Wright v. Roanoke
    Redevelopment and Housing Authority, 
    479 U.S. 418
    (1987),
    to determine if plaintiff had established a federal right. In
    doing so, the Court noted that if plaintiff had established
    such a right, it would be enforceable under S 1983 unless
    Congress had foreclosed resort to S 1983 either in the text
    of the applicable statute, or the comprehensive nature of
    the relevant statutory scheme. 
    Blessing, 520 U.S. at 340
    . It
    is in this latter context that a presumption arises.
    Accordingly, there is a presumption that S 1983 is available
    once a federal right (as opposed to a violation of federal law)
    is established. The presumption is rebutted if a defendant
    can establish that Congress expressed its intent (explicitly,
    or implicitly through the statutory scheme), that the statute
    not be enforceable under the general rubric of S 1983.
    It is true, as the majority notes, that much of our
    discussion in Powell was worded in terms of refuting
    defendant's assertion that plaintiffs could maintain a cause
    of action. The majority notes: that "[Powell ] merely rejected
    . . . specific arguments. But Powell did not analyze the
    foundation issue that is central here, i.e. whether a
    regulation in itself can create a right enforceable under
    section 1983." Maj. Op. at 26-27. That assertion can not
    withstand even a cursory reading of Powell. The fact that
    we "merely rejected" defendant's arguments that S 1983
    43
    does not allow a private cause of action to enforce the
    regulations does not negate the fact that the result of
    refuting those arguments was that we found plaintiffs had
    a cause of action under S 1983, and that was part of our
    holding. The majority's attempt to suggest the contrary is
    tantamount to arguing that "merely rejecting" the argument
    that 2 plus 2 does not equal 4 does not at the same time
    establish that 2 plus 2 does equal 4.
    The sleight of hand that transforms our mention of a
    "presumption" in Powell into an assumption about the
    application of S 1983 is even more puzzling when one
    considers that the majority's own analysis states that the
    relevant presumption does not arise unless the plaintiff can
    establish a federal right has been violated. My colleagues
    quite correctly state: "If a plaintiff . . . establishes and
    identifies a federal right that allegedly has been violated, a
    rebuttable presumption that the right is enforceable
    through section 1983 arises." Maj. Op. at 18 (citing
    Blessing). Therefore, the majority clearly recognizes that
    Powell concluded that the plaintiffs there had a federal
    right, arising from the regulations promulgated under Title
    VI, and that the right could be enforced under S 1983
    absent a demonstration that the cause of action was
    precluded by the text of Title VI, or the statutory scheme.
    We held that the defendants in Powell could not rebut the
    presumption. Moreover, the majority here correctly
    concedes that that was part of our holding in Powell, even
    while attempting to transform the holding into a mere
    assumption. See Maj. Op. at 13 ("In reaching its result the
    [district] court relied, inter alia on Powell v. Ridge, in which
    we held that there was a private right of action available to
    enforce a regulation implementing Title VI and that a
    disparate impact discrimination claim could be maintained
    under section 1983 for a violation of a regulation
    promulgated pursuant to section 602.") (emphasis added);
    see also Maj. Op. at 26 ("We answered both questions in
    the affirmative, stating that section 602 and the
    Department of Education regulation at issue provided a
    private right of action, and that plaintiffs could utilize
    section 1983 to redress defendant's alleged violation of the
    statute and regulation.") (emphasis added). As noted above,
    it is clear that the first part of our holding in Powell does
    44
    not survive Sandoval. However, that is simply not true of
    the second part of the holding. Sandoval never discussed
    the S 1983 issue.
    In Sandoval, plaintiffs brought a class action against the
    Alabama Department of Public Safety in an attempt to
    enjoin the Department from administering drivers license
    examinations only in English. Plaintiffs alleged that
    administering the test in English to Spanish speaking
    residents had the effect of discriminating against them in
    violation of S 601 of Title VI. The Court began its analysis
    by stating that it was clear from the Court's own decisions,
    Congress' amendments to Title VI, "and from the parties'
    concessions that three aspects of Title VI must be taken as
    given." 121 Sup. Ct. at 1516. These were that private
    individuals could sue to enforce the prohibition of
    intentional discrimination contained in S 601, that S 601
    prohibits only intentional discrimination, and "we must
    assume for purposes of deciding this case that regulations
    promulgated under S 602 of Title VI may validly proscribe
    activities that have a disparate impact on racial groups,
    even though such activities are permissible underS 601."
    
    Id. at 1516-17.
    In writing for the majority and noting these three
    principles were taken as given, Justice Scalia observed that
    five justices of the Court had previously, in Guardians
    Association v. Civil Serv. Comm'n of New York City , 
    463 U.S. 582
    (1983), voiced that latter principle "at least as
    alternative grounds for their decisions." Sandoval 121 S.Ct
    at 1517. Justice Scalia noted that that position was"in
    considerable tension with the rule of Bakke3 and Guardians
    that S 601 forbids only intentional discrimination. . . ." 
    Id. However, inasmuch
    as the plaintiffs in Sandoval had not
    challenged the regulations and had asserted a claim only
    under S 601, the Court, "for the purposes of deciding this
    case" assumed that the regulations proscribing disparate
    impact discrimination "are valid." 
    Id. at 1517.
    The question before the Court was, therefore, a very
    narrow one. The only issue was whether S 602 created a
    free standing private cause of action to enforce regulations
    _________________________________________________________________
    3. Referring to Regents of Univ. of Cal. v. Bakke, 
    438 U.S. 265
    (1978).
    45
    precluding disparate impact discrimination. As noted
    above, that was the only question that the Court granted
    certiorari to review. The Court answered that narrow
    inquiry as follows:
    "neither as originally enacted nor as later amended
    does Title VI display an intent to create a freestanding
    proper right of action to enforce regulations
    promulgated under S 602. We therefore hold that no
    such right of action exists."
    121 Sup. Ct. at 1523.
    The majority seizes upon the "language of Sandoval," to
    answer the very different inquiry posed by the district
    court's injunction here. The majority does so even while
    noting that the Court in Sandoval cautioned that "this
    Court is `bound by holdings, not language.' " Maj. Op. at 35
    n. 12 (quoting Sandoval 121 Sup. Ct. at 1517). The
    language of Sandoval, however, can not read an issue into
    that case that was not raised by the parties and not
    decided by the Court.
    The issue here, simply stated, is whether S 1983 provides
    an independent avenue to enforce disparate impact
    regulations promulgated under S 602 of Title VI. That is the
    same question that was posed in Powell. We answered it in
    the affirmative in Powell, and the answer was not
    overturned by the subsequent holding in Sandoval. Powell
    therefore controls our inquiry here until overruled by the
    Supreme Court, or this court sitting en banc. See Central
    
    Railroad, 485 F.2d at 210
    . Clearly, the majority's decision
    is not based on any determination of the en banc court.
    Just as clearly, it is not based upon the holding in
    Sandoval, or Powell.
    The majority reasons that inasmuch as the Sandoval
    majority did not find the requisite Congressional intent for
    a private cause of action in the statute there can be no
    enforceable right under S 1983. See Maj. Op. at 37
    ("Applying these rules here, it is clear that, particularly in
    light of Sandoval, Congress did not intend by adoption of
    Title VI to create a federal right to be free from disparate
    impact discrimination and that while the EPA's regulations
    46
    on the point may be valid, they nevertheless do not create
    rights enforceable under section 1983.").
    However,
    This [an enforceable right under S 1983] is a different
    inquiry than that involved in determining whether a
    private right of action can be implied in a particular
    statute. In right of action cases we employ the four-
    factor Cort test to determine whether Congress
    intended to create the private remedy asserted for the
    violation of statutory rights. The test reflects a concern,
    grounded in separation of powers, that Congress rather
    than the courts controls the availability of remedies for
    violations of statutes. Because S 1983 provides an
    alternative source of express congressional authorization
    of private suits, these separation-of-powers concerns are
    not present in a S 1983 case. Consistent with this view,
    we recognize an exception to the general rule that
    S 1983 provides a remedy for violation of federal
    statutory rights only when Congress has affirmatively
    withdrawn the remedy.
    Wilder v. Virginia Hospital 
    Assoc., 496 U.S. at 508
    n.9
    (1990) (emphasis added) (internal citations and internal
    quotation marks omitted) (citing Sea Clammers , 453 U.S. at
    19.).
    The majority in Sandoval did, in fact, apply the
    aforementioned Cort test for determining if a cause of action
    existed in the statute. The Court did not apply the
    Blessing test that is used under S 1983 analysis.4 This fact
    alone should cause my colleagues pause before
    "overreading" Sandoval.
    Moreover, if we are to discount Powell on the grounds
    that Powell only assumed plaintiffs there had an actionable
    S 1983 claim so too we must distinguish Sandoval--a case
    _________________________________________________________________
    4. Blessing requires, as its first element, that "Congress must have
    intended that the provision in question benefit the plaintiff." 
    Blessing, 520 U.S. at 340
    . The Sandoval Court, on the other hand, asked in its
    private right of action inquiry, "whether it[section 602] displays an
    intent to create not just a private right but also a private remedy."
    
    Sandoval, 121 S. Ct. at 1519
    .
    47
    which is even one step more removed than Powell from the
    appropriate inquiry--as Sandoval did not even address
    S 1983 to begin with.
    Although my colleagues recognize in a footnote that the
    four justices who dissented in Sandoval believed that
    litigants could still bring a S 1983 cause of action for
    violation of a Title VI disparate-impact regulation, the
    majority fails to give that fact the significance it deserves.
    See Maj. Op. at 17 n.5. The dissenting justices responded
    to the majority's conclusion that the plaintiffs in Sandoval
    could not bring a cause of action under Title VI by stating:
    to the extent that the majority denies relief to the
    respondents merely because they neglected to mention
    42 U.S.C. S 1983 and framing their Title VI claim, this
    case is something of a sport. Litigants who in the
    future wish to enforce the Title VI regulations against
    state actors in all likelihood must only referenceS 1983
    to obtain relief; indeed, the plaintiffs in this case . . .
    presumably retain the option of rechallenging
    Alabama's English-only policy in a complaint that
    invokes S 1983 even after today's decision.
    Sandoval at 1527.
    In reaching our second holding in Powell, we also noted
    that
    Defendants' argument conflicts with the Supreme
    Court's own pronouncements. As previously noted, in
    Guardians five of the nine justices agreed that
    the administrative regulations incorporating a
    disparate impact standard are valid, 
    see 463 U.S. at 584
    n. 2, 607 n. 27, 
    103 S. Ct. 3221
    , and thereafter the
    Court in Alexander5 characterized Guardians as so
    holding. See 
    Alexander, 469 U.S. at 293
    , 
    105 S. Ct. 712
           ("[Guardians] held that actions having an unjustifiable
    disparate impact on minorities could be redressed
    through agency regulations designed to implement the
    purposes of Title VI."). Obviously, the Supreme Court
    did not believe that administrative regulations that
    prohibit disparate impact were an impermissible
    _________________________________________________________________
    5. Referring to Alexander v. Choate, 
    469 U.S. 287
    (1985).
    48
    creation of substantive law, even though in its own
    earlier opinion in Guardians the Supreme Court had
    held that Title VI itself did not extend that 
    far. 189 F.3d at 399-400
    .
    Moreover, Supreme Court precedent affords additional
    support for the plaintiffs' claim here. In Wright v. City of
    Roanoke Redevelopment & Hous. 
    Auth., supra
    , the plaintiffs
    brought an action under S 1983 to enforce regulations that
    defined "rent" under the relevant statute. Defendants
    argued that the rights plaintiffs sought to enforce under
    S 1983 were too amorphous and vague to confer an
    enforceable right under S 1983. In rejecting that argument
    the Supreme Court proclaimed that "[t]he regulations . . .
    have the force of 
    law." 479 U.S. at 431
    .
    The majority attempts to distance the instant inquiry
    from the analysis in Wright by arguing that the Court there
    first examined the relevant statute and concluded that the
    statute, itself, conferred the right plaintiffs were seeking to
    enforce under S 1983. Only upon making that
    determination, argues the majority, did the Court then
    conclude that the relevant regulations could properly define
    and flesh out the statutorily conferred right. The majority
    then concludes that, inasmuch as the relevant right here
    resides in the regulations, not Title VI, S 1983 can not
    independently afford the relief that Congress did not
    provide for in the controlling statute. Maj. Op. at 24.
    It is true that the Court in Wright ordered its analysis as
    the majority suggests. However, the Court stated that the
    regulation had the force of law as part of its Blessing
    analysis. Significantly, the Court applied that analysis not
    to the provisions of the statute, but to the regulation itself.
    Accordingly, Wright is consistent with, and supports, the
    plaintiffs' position here that the regulations themselves may
    give birth to a federal right so long as the regulations are
    valid.
    In addition, the Supreme Court later interpreted Wright
    as finding an enforceable right in the interrelationship
    between the regulations and underlying statute. See 
    Wilder, 496 U.S. at 511
    ("[I]n Wright, we found that the [statute]
    . . . and its implementing regulations did create rights
    49
    enforceable under S 1983."). Cases that we decided before
    Powell reached the same conclusion. See Alexander v. Polk,
    
    750 F.2d 250
    (3d Cir. 1984)).
    In Polk, we concluded that the regulation at issue created
    an enforceable right. See 
    Polk, 750 F.2d at 259
    ("It is clear
    that 7 C.F.R. S 246.24 created an enforceable right on
    behalf of [plaintiffs] to be informed of the availability of fair
    hearings."). The majority attempts to reconcile today's
    opinion with Polk by stating that the right identified there
    could be "traced to and was consistent with the statute".
    Maj. op. at 25. We ought not dismiss Polk so easily
    however, given our pronouncement in Powell. Although we
    did not cite Polk in Powell, we were clearly aware of the Polk
    analysis, and it is consistent with our result in Powell.
    Furthermore, although Polk was decided before Blessing, it
    is clear that the analysis in Polk is consistent with a
    Blessing analysis, and the focus upon congressional intent.
    See 
    Polk, 750 F.2d at 259
    ("The provision was intended to
    safeguard the legal rights of WIC beneficiaries by informing
    them of fair hearing procedures.").
    The regulations the South Camden plaintiffs are
    attempting to enforce can also be traced to Title VI. The
    majority focuses on the fact that S 601 proscribes only
    intentional discrimination. Nevertheless, disparate-impact
    regulations may very well reflect an agency's practical
    considerations and definition of discrimination, just as
    "rent" was defined by the Department of Housing and
    Urban Development in the regulations in Wright . We cannot
    invalidate that regulatory definition without invalidating the
    regulations, and the majority claims that it is not doing that.6
    Lastly, in keeping with the tendency to rely upon
    "language" that is favorable, and distinguish contrary
    pronouncements as "dicta," the majority dismisses our
    decision in West Virginia Univ. Hospitals v. Casey, 
    885 F.2d 11
    (3rd Cir. 1989) as "dicta." Maj. op. at 26. In Casey, we
    interpreted Wright and Polk as standing for the proposition
    that regulations, as well as statutes, can create rights that
    are enforceable under S 1983. There we stated,"valid
    _________________________________________________________________
    6. Although the majority snipes at the disparate-impact regulations, my
    colleagues concede they are valid for purposes of the instant analysis.
    50
    federal regulations as well as federal statutes may create
    rights enforceable under section 1983," and we cited
    Wright, and 
    Polk. 885 F.2d at 18
    . I readily concede that
    Casey involved only a statute, not regulations, and
    therefore, this statement was "dicta" just as the majority
    states. However, I think it noteworthy that my colleagues so
    readily dismiss statements from our own jurisprudence as
    "dicta" while relying upon dicta from cases that support its
    analysis and identifying the "dicta" as "teachings." See Maj.
    Op. at 32-33 ("we follow Wright, in accordance with its
    actual holding, the teaching of Sandoval, and the holdings
    in Harris and Smith, which we believe the courts of appeals
    decided correctly").
    Of course, whether or not the plaintiffs would ultimately
    prevail on the merits is not the issue before us today.
    However, given controlling precedent in Powell I frankly fail
    to see how we can conclude that their chances of prevailing
    are anything less than reasonable. Moreover, their position
    has been adopted by our sister Court of Appeals for the
    Sixth Circuit. See Loschiavo v. City of Dearborne, 
    33 F.3d 548
    (6th Cir. 1994), (holding that regulations promulgated
    under the Cable Communications Policy Act of 1984
    created a right which plaintiff could enforce under 42
    U.S.C. S 1983, and relying upon 
    Wilder, 496 U.S. at 520
    and 
    Wright, 479 U.S. at 432
    ). The reasonableness of the
    plaintiffs' position is further underscored by the four
    dissenting justices in Sandoval. They noted:
    the majority declines   to accord precedential value to
    Guardians because the   five justices in the majority
    were arguably divided   over the mechanism for which
    private parties might   seek such injunctive relief.
    121 Sup. Ct. at 1527.
    Conclusion
    Accordingly, for the reasons set forth herein, I
    respectfully dissent from the decision of the majority. I do
    readily concede that, given the pronouncements in
    Sandoval, the majority's opinion here has some force.
    However, the majority's opinion can not withstand scrutiny
    given Powell, as well as other cases that were not overruled
    51
    by Sandoval. I believe that the district court was clearly
    correct in concluding that plaintiffs can demonstrate a
    "reasonable probability of success" on the merits.7
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    7. Inasmuch as the majority's analysis is limited to the first prong of
    the
    four part test for upholding a preliminary injunction I have not
    discussed whether plaintiffs have shown that they will be irreparably
    harmed by the denial of relief, whether granting the preliminary relief
    will result in even greater harm to the defendants or whether granting
    preliminary relief will be in the public interest. See Allegheny Energy
    Inc.
    v. DQE, Inc., 
    171 F.3d 153
    , 158 (3d Cir. 1999) citing ACLU v. Blackhorse
    Pike Regional Bd. Of Educ., 
    84 F.3d 1471
    , 1477 n.2 (3d Cir. 1996) (en
    banc)).
    52
    

Document Info

Docket Number: 01-2224

Citation Numbers: 274 F.3d 771

Filed Date: 12/17/2001

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (49)

Albiston v. Maine Commissioner of Human Services , 7 F.3d 258 ( 1993 )

Kissimmee River Valley Sportsman Association v. City of ... , 250 F.3d 1324 ( 2001 )

In the Matter of the Central Railroad Company of New Jersey,... , 485 F.2d 208 ( 1974 )

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33-socsecrepser-17-medicaremedicaid-gu-39194-pinnacle-nursing-home , 928 F.2d 1306 ( 1991 )

54-socsecrepser-332-medicare-medicaid-guide-p-45750-11-fla-l , 127 F.3d 993 ( 1997 )

Robert B. Reich, Secretary of Labor, United States ... , 90 F.3d 854 ( 1996 )

Allegheny Energy, Inc. v. Dqe, Inc. , 171 F.3d 153 ( 1999 )

David D. Chittister v. Department of Community and Economic ... , 226 F.3d 223 ( 2000 )

the-american-civil-liberties-union-of-new-jersey-on-behalf-of-its-members , 84 F.3d 1471 ( 1996 )

Laticia Farley v. Philadelphia Housing Authority Floyd ... , 102 F.3d 697 ( 1996 )

in-re-arthur-treachers-franchisee-litigation-arthur-treachers-fish , 689 F.2d 1137 ( 1982 )

laura-angelastro-on-behalf-of-herself-and-all-others-similarly-situated , 764 F.2d 939 ( 1985 )

luvinia-alexander-for-herself-and-as-guardian-ad-litem-for-sharifa , 750 F.2d 250 ( 1984 )

g-michael-smith-on-behalf-of-himself-and-all-others-similarly-situated , 821 F.2d 980 ( 1987 )

david-powell-shelean-parks-patrice-everage-julia-a-davis-yvette-bland , 189 F.3d 387 ( 1999 )

west-virginia-university-hospitals-inc-v-robert-casey-governor , 885 F.2d 11 ( 1989 )

american-telephone-and-telegraph-company-v-winback-and-conserve-program , 42 F.3d 1421 ( 1994 )

American Civil Liberties Union v. Reno , 217 F.3d 162 ( 2000 )

former-special-project-employees-association-michael-j-babashanian-arthur , 909 F.2d 89 ( 1990 )

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