CHESTER RESIDENTS CONCERNED FOR QUALITY LIVING; Zulene Mayfield; Cathy Morse; Ossie Morse; King McDonald; Angela McDonald; Carlene P. Stevenson; Louis S. Morse; Rick Otten; Linda Morse Rothwell; Arthur H. Rothwell, III; Margarita Santiago; Ricardo Santiago*; Daniel Murphy; Janet Weiss; Reagan Otten; Renee D. Dale; Frances Rothwell; Lisa Gilliam, Appellants v. James M. SEIF, in his capacity as Secretary of the Pennsylvania Department of Environmental Protection; Pennsylvania Department of Environmental Protection; Carol R. Collier, in her capacity as Director of the Southeastern Region of Department of Environmental Protection; Pennsylvania Department of Environmental Protection—Southeast Region
No. 97-1125.
United States Court of Appeals, Third Circuit.
Argued Sept. 25, 1997. Decided Dec. 30, 1997.
132 F.3d 925
Mark L. Freed, (Argued), Commonwealth of Pennsylvania, Department of Environmental Resources, Conshohocken, PA, for Appellees James M. Seif, in his capacity as Secretary of the Pennsylvania Department of Environmental Protection, Pennsylvania Department of Environmental Protection, Carol R. Collier, in her capacity as Director of the Southeastern Region of Department of Environmental Protection, Pennsylvania Department of Environmental Protection, Southeast Region.
Seth M. Galanter, United States Department of Justice, Civil Rights Division, Washington, DC, for Amicus-Appellant, United States of America.
Arthur H. Bryant, Trial Lawyers for Public Justice, Washington, DC, for Amicus-Appellant, Trial Lawyers for Public Justice Southern Poverty Law Center.
Before: COWEN, ROTH and LEWIS, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal presents the purely legal question of whether a private right of action exists under discriminatory effect regulations promulgated by federal administrative agencies pursuant to
We find that Chowdhury is not dispositive on this issue. Subsequent jurisprudence, namely Guardians Ass‘n v. Civil Serv. Comm‘n, 463 U.S. 582 (1983), and its progeny, provides support for the existence of a private right of action. Moreover, Chowdhury did not apply this court‘s test for determining when it is appropriate to imply a private right of action to enforce regulations. We agree with the overwhelming number of courts of appeals that have indicated, with varying degrees of analysis, that a private right of action exists under
I.
The non-profit corporation CRCQL brought suit against the Pennsylvania Department of Environmental Protection (“PADEP”) and James M. Seif, in his capacity as Secretary of PADEP, and other related defendants. CRCQL alleges that PADEP‘s issuance of a permit to Soil Remediation Services, Inc., to operate a facility in the City of Chester, a predominantly black community, violated the civil rights of CRCQL‘s members.1 Specifically, the complaint asserts that PADEP‘s grant of the permit violated: (1)
PADEP has authority to issue or deny applications for permits to operate waste processing facilities. See
Title VI and the EPA‘s civil rights regulations implementing Title VI condition PADEP‘s receipt of federal funding on its assurance that it will comply with Title VI and the regulations. See
The district court dismissed Count One of CRCQL‘s complaint without prejudice. It found that CRCQL failed to allege intentional discrimination on the part of PADEP, which is a required element for an action brought under
The district court dismissed Counts Two and Three with prejudice, finding that no private right of action exists under which CRCQL could enforce the EPA‘s civil rights regulations.6 In reaching this determination, it relied on our statements in Chowdhury, which concerned whether a private plaintiff must first exhaust administrative remedies under
Congress explicitly provided for an administrative enforcement mechanism, contained in section 602, by which the funding agency attempts to secure voluntary compliance and, failing that, is empowered to terminate the violator‘s federal funding. Under the regulations promulgated pursuant to this section, an aggrieved individual may file a complaint with the funding agency but has no role in the investigation or adjudication, if any, of the complaint. The only remedies contemplated by the language of the Act and the Regulations are voluntary compliance and funding termination. There is no provision for a remedy for the victim of the discrimination, such as injunctive relief or damages.
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 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 the financial assistance in connection with which the action is taken.
II.
The district court had jurisdiction pursuant to
III.
It is important to distinguish at the outset between
In contrast,
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.
A.
We look first to the applicable Supreme Court jurisprudence. CRCQL contends that the Court‘s decisions in Guardians and Alexander establish a private right of action. Guardians is a fragmented decision consisting of five separate opinions. It concerned a suit by black and hispanic police officers alleging that certain lay-offs by their department violated Title VI and Title VII of the Civil Rights Act of 1964, as well as the Fourteenth Amendment,
i.
Guardians did not explicitly address whether a private right of action exists under discriminatory effect regulations promulgated under
A close reading of the opinions in Guardians reveals that five Justices agreed that injunctive and declarative relief are available in discriminatory effect cases. For instance, Justice White stated in his opinion that he would allow private plaintiffs to proceed under
Justice Marshall stated in his dissent that he would allow private plaintiffs in discriminatory effect cases to proceed under
Justice Stevens, joined by Justices Brennan and Blackmun, determined: (1) private plaintiffs may seek injunctive, declaratory, or compensatory relief under Title VI; (2) intentional discrimination is a necessary element under
Based on the foregoing, we can find an implicit approval by five Justices of the existence of a private right of action under discriminatory effect regulations implementing
CRCQL‘s second argument based on Guardians also has some merit. CRCQL argues that a private right of action exists because the Guardians Court did not dismiss the plaintiffs’ action sua sponte for failure to state a claim. It is important to remember, however, that no party in Guardians raised, by
ii.
The Court offered some clarification of Guardians in its unanimous decision in Alexander, which involved
In Guardians, we confronted the question whether Title VI of the Civil Rights Act of 1964, which prohibits discrimination against racial and ethnic minorities in programs receiving federal aid, reaches both intentional and disparate-impact discrimination. No opinion commanded a majority in Guardians, and Members of the Court offered widely varying interpretations of Title VI. Nonetheless, a two-pronged hold-
469 U.S. at 292-94 (citation and footnotes omitted). The most plausible reading of this language is that it confirms that a private right of action exists under
CRCQL argues that the Court recognized the existence of a private right of action in the following language from Alexander:
Guardians, therefore, does not support petitioners’ blanket proposition that federal law proscribes only intentional discrimination against the handicapped. Indeed, to the extent our holding in Guardians is relevant to the interpretation of
§ 504 , Guardians suggests that the regulations implementing§ 504 , upon which respondents in part rely, could make actionable the disparate impact challenged in this case.
469 U.S. at 294.8 Stitching together CRCQL‘s arguments and those made by the Trial Lawyers for Public Justice (“TLPJ”) and the Southern Poverty Law Center (“SPLC”) as amici, the argument in favor of inferring the existence of a private right of action from Alexander proceeds as follows. The Alexander Court noted in the above-quoted language that, to the extent that Title VI jurisprudence is relevant to the Rehabilitation Act, Guardians “suggests” that a party can proceed with a disparate impact claim under
While CRCQL‘s argument has some merit, we are not persuaded. The Court in Alexander spoke in the passive voice—“could make actionable”—and did not indicate whether Guardians stood for the proposition that a private plaintiff, or the relevant agency, could proceed under a disparate impact standard. CRCQL‘s argument requires the inference that because Alexander was a suit brought by private plaintiffs, and because Guardians was also brought by private plaintiffs, the Alexander Court must have been speaking of private plaintiffs when it used the passive voice. This inference from Guardians may be justified, but we find no direct authority in Alexander that either confirms or denies the existence of a private right of action. Consequently, we decline to hold that a private right of action exists based on Guardians and Alexander alone.9
Having determined that the applicable Supreme Court precedent is not dispositive, we look to our own precedent. The district court relied on our statements in Chowdhury for the conclusion that no private right of action exists. See 944 F.Supp. at 417. CRCQL, and TLPJ and SPLC as amici, argue that reliance on Chowdhury is questionable because: (1) Chowdhury did not apply this Circuit‘s three-prong test for determining when it is appropriate to infer a private right of action to enforce regulations; and (2) Chowdhury was decided before Guardians.
The sole question in Chowdhury was whether a private plaintiff must first exhaust administrative remedies under
Chowdhury appears to decide that no private right of action exists under the regulations, and we readily understand why the district court reached this conclusion. We nevertheless disagree with that conclusion. Chowdhury does not hold that no private right of action exists under
Looking to our other precedent, CRCQL and amici cite our decision in Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir.1990), a post-Guardians opinion, in support of the existence of a private right of action. Pfeiffer involved a suit by a high school student alleging gender discrimination in her dismissal from the local chapter of the National Honor Society. The plaintiff asserted claims under
In Guardians, the “threshold issue before the Court [was] whether ... private plaintiffs ... need to prove discriminatory intent to establish a violation of Title VI ... and administrative implementing regulations promulgated thereunder.” A majority of the Court agreed that a violation of the statute itself requires proof of discriminatory intent. A different majority seemed to suggest that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute itself.
917 F.2d at 788 (quoting Guardians, 463 U.S. at 584) (citations omitted).
It is of course informative to read an interpretation of Guardians by a prior panel. The interpretation, however, is dicta and not
C.
Since our own precedent does not resolve the matter, we must now determine whether to imply a private right of action. This court has established a three-prong test for determining when it is appropriate to imply private rights of action to enforce regulations. The test requires a court to inquire: “(1) ‘whether the agency rule is properly within the scope of the enabling statute‘; (2) ‘whether the statute under which the rule was promulgated properly permits the implication of a private right of action‘; and (3)‘whether implying a private right of action will further the purpose of the enabling statute.‘” Polaroid Corp. v. Disney, 862 F.2d 987, 994 (3d Cir.1988) (quoting Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 947 (3d Cir.1985)). We discuss each prong in turn.
i.
There is no question that the EPA‘s discriminatory effect regulation satisfies the first prong. The Supreme Court‘s unanimous opinion in Alexander makes clear that “actions having an unjustifiable disparate impact on minorities [can] be redressed through agency regulations designed to implement the purposes of Title VI.” 469 U.S. at 293 (footnote omitted).
ii.
The second and third prongs are the crux of this case. In addressing the second, a court will consider the factors set out by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975), and its progeny. See Angelastro, 764 F.2d at 947. The factors relevant here are: (1) whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; and (2) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.” Cort, 422 U.S. at 78.10
The United States, as amicus, contends that the implication of a private right of action is consistent with legislative intent because Congress acknowledged the existence of the right when it amended Title VI. The purpose of the amendment was to broaden the scope of coverage of Title VI in response to the Supreme Court‘s decision in Grove City Coll. v. Bell, 465 U.S. 555 (1984), where the Court narrowly construed the terms “program or activity.”11 The United States cites various items of legislative history which it claims indicates an “understanding ... [of]
First, the United States relies on a House Report on an early version of the relevant bill, which states that the “private right of action which allows a private individual or entity to sue to enforce Title IX would continue to provide the vehicle to test [certain] regulations in Title IX and their expanded meaning to their outermost limits.” H.R. REP. NO. 963, Pt. 1, 99th Cong., 2d Sess. 24 (1986).12 Second, the United States relies on several legislators’ comments in the Congressional Record, where the legislators appear to recognize the existence of a private right of action.13 Third, the United States also relies on the following compilations of testimony at congressional hearings: Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98th Cong., 2d Sess. 23-24, 153-54, 200 (1984); Civil Rights Restoration Act of 1985: Joint Hearings on H.R. 700 Before the House Comm. on Educ. & Labor and the Subcomm. on Civil & Const. Rights of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 734, 1095, 1099 (1985). The first compilation contains, inter alia, a memorandum by the Office of Management and Budget (“OMB”) which states OMB‘s opinion that “every licensed attorney would be empowered to file suit to enforce the ‘effects test’ regulations of agencies, challenging practices in every aspect of every institution that receives any Federal assistance.” Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98th Cong., 2d Sess. 527 (1984).
PADEP presents two responses. First, PADEP emphasizes that the purpose of the amendment of Title VI was to address the Supreme Court‘s decision in Grove City, not to confirm or announce the existence of a private right of action. Second, PADEP reminds the court that many of the above-cited comments may only reflect the views of individual members of Congress. PADEP does not, however, cite to any statements in the Congressional Record or elsewhere that would undermine those cited by the United States. We therefore find that there is some indication in the legislative history, here uncontroverted, of an intent to create a private right of action, in satisfaction of the Cort factors.
This finding, however, does not end our inquiry. The Cort factors also require a court to determine whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff[.]” 422 U.S. at 78. Relevant to this inquiry is PADEP‘s argument that
[N]o such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.
In addition, PADEP emphasizes that the EPA‘s regulations expressly provide private parties with an administrative mechanism through which they can raise allegations of unintentional discrimination. See
A person who believes that he or she or a specific class of persons has been discriminated against in violation of this Part may file a complaint. The complaint may be filed by an authorized representative. A complaint alleging employment discrimination must identify at least one individual aggrieved by such discrimination. Complaints solely alleging employment discrimination against an individual on the basis of race, color, national origin, sex or religion shall be processed under the procedures for complaints of employment discrimination filed against recipients of federal assistance. Complainants are encouraged but not required to make use of any grievance procedure established under
§ 7.90 before filing a complaint. Filing a complaint through a grievance procedure does not extend the 180 day calendar requirement of paragraph (b)(2) of this section.
We recognize that PADEP‘s argument has some force. There is, however, a more convincing counter-argument. The procedural requirements in
In sum, we find that there is some indication in the legislative history of an intent to create a private right of action and that the implication of a private right of action would be consistent with the legislative scheme of Title VI, in accordance with the relevant Cort factors. Accordingly, we find that “the statute under which the rule was promulgated properly permits the implication of a private right of action,” Polaroid Corp., 862 F.2d at 994 (quoting Angelastro, 764 F.2d at 947), and that the second prong of the test is satisfied.
iii.
The third prong of the test requires the court to inquire “whether implying a private right of action will further the purpose of the enabling statute.” Id. (quoting Angelastro, 764 F.2d at 947). The United States contends that this prong is satisfied because the implication of a private right of action under
We agree with the United States that, to the extent that a private right of action will increase enforcement, the implication of that right will further the dual purposes of Title VI. Consequently, we find that the third prong of the test is also satisfied.
iv.
Lastly, although no other court of appeals has rendered a holding on the precise issue before this court, we note that the decisions of other courts of appeals indicate support for our reasoning. See, e.g., Latinos Unidos De Chelsea v. Secretary of Hous. & Urban Dev., 799 F.2d 774, 785 n. 20 (1st Cir.1986) (“Under the statute itself, plaintiffs must make a showing of discriminatory intent; under the regulations, plaintiffs simply must show a discriminatory impact.” (citation omitted)); New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir.1995) (“Courts considering claims under analogous Title VI regulations have looked to Title VII disparate impact cases for guidance. A plaintiff alleging a violation of the DOT regulations must make a prima facie showing that the alleged conduct has a disparate impact.” (citations omitted)); Castaneda v. Pickard, 781 F.2d 456, 465 n.11 (5th Cir.1986) (“Thus a Title VI action can now be maintained in either the guise of a disparate treatment case, where proof of discriminatory motive is critical, or in the guise of a disparate impact case, involving employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another. In this latter type of case, proof of discriminatory intent is not necessary.” (citation omitted)); Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 n. 5 (6th Cir.1996) (“A plaintiff may pursue a claim under a disparate impact theory as well. However, a disparate impact theory is not applicable in the case at hand.” (citation omitted)); David K. v. Lane, 839 F.2d 1265, 1274 (7th Cir.1988) (“It is clear that plaintiffs may maintain a private cause of action to enforce the regulations promulgated under Title VI of the Civil Rights Act. Moreover, plaintiffs need not show intentional discriminatory conduct to ry of Title VI as it relates to the implication of a private remedy for victims of discrimination). Rather, should relief prove warranted in this case, we leave the determination of the appropriate remedy to the district court in the first instance.
V.
In conclusion, the district court misapplied our decision in Chowdhury. Chowdhury did not apply this court‘s three-prong test for determining when it is appropriate to imply a private right of action to enforce regulations and was decided before the Supreme Court‘s decision in Guardians. Applying that three-prong test, we hold that private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to
Notes
Applicants for EPA assistance shall submit an assurance with their applications stating that, with respect to their programs or activities that receive EPA assistance, they will comply with the requirements of this Part. Applicants must also submit any other information that the OCR determines is necessary for pre-award review. The applicant‘s acceptance of EPA assistance is an acceptance of the obligation of this assurance and this Part.
Private petitioners reiterate in this Court their assertion that the state system also violates Title VI, citing a regulation to that statute which requires States to “take affirmative action to overcome the effects of prior discrimination.” Our cases make clear, and the parties do not disagree, that the reach of Title VI‘s protection extends no further than the Fourteenth Amendment. We thus treat the issues in these cases as they are implicated under the Constitution.
Id. at 732 n. 7. Fordice did not indicate that private plaintiffs were barred from asserting a claim under the regulation quoted. Rather, the Court merely noted that the affirmative relief called for under the statute could not reach beyond that afforded by the Constitution itself.
The failure to provide a particular share of contract opportunities to minority-owned businesses, for example, could lead Federal agencies to undertake enforcement action asserting that the failure to provide more contracts to minority-owned firms, standing alone, is discriminatory under agency disparate impact regulations implementing Title VI.... Of course, advocacy groups will be able to bring private lawsuits making the same allegations before federal judges.
134 CONG. REC. 4,257 (1988). The United States also quotes a portion of the following statement by Representative Fields: “If a greater percentage of minority than white students fail a bar exam or a medical exam ... will a State be subject to private lawsuits because the tests have a disproportionate impact on minorities[.]” 130 CONG. REC. 18,880 (1984).
Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law....