Council of and for the Blind of Delaware County Valley, Inc. v. Donald T. Regan, Secretary of the Treasury

WILKEY and GINSBURG, Circuit Judges. Argued 11 Jan. 1982. Argued En Bane 1 Dec. 1982. ORDER Decided 10 June 1983.

PER CURIAM. Upon consideration of appellee’s motion

for summary affirmance, as well appel- as

lant’s motion to remand, vacate and and the

response and thereto, reply it is

ORDERED by the Court that appellee’s

motion summary affirmance is denied.

The passage of Pub.L. No. 96 Stat.

2364 (January 12, 1983) (amending 36

U.S.C. seq.; et to be at 36 codified 1219), exempts the United

States Society Historical from paying, col-

lecting accounting “for any tax ap- ... plicable to taxable events occurring within the United Capital States Building and grounds on or after January Id., 1964.”

has rendered the case moot. It is therefore

FURTHER ORDERED by the Court that

the judgment of the Court, District is vacated and the case re-

manded to the District Court di-

rections to dismiss the complaint. United States v. Munsingwear, L.Ed. 36 It FURTHER ORDERED by Court, sua

sponte, that the Clerk withhold issuance of

the mandate until days seven after disposi-

tion of any timely petition for rehearing.

See Local Rule amended June

WILKEY, Circuit Judge, did not partici-

pate in the foregoing order.

1523

Separate opinion concurring in part and dissenting in part filed by Chief Judge, SPOTTSWOOD W. ROBINSON, III, with whom Judges Circuit J. SKELLY WRIGHT, WALD, MIKVA and HARRY T. join. EDWARDS WILKEY, Circuit Judge: In this suit appellants, two individuals organizations seven located in various places States, United challenge way in which the Office of Revenue Shar- ing handles complaints that funds it distrib- utes in block grants are being used par- programs ticular in an illegally discrimina- McNeill, William C. III, with whom tory manner. The district court held that Peña, Eduardo Jr., Washington, D.C., was appellants failed state a claim upon on brief, for appellants. relief which could granted. Because we Robertson, James D.C., Washington, with conclude that no federal statute or provi- whom William L. Robinson, Washington, sion Constitution authorizes the type D.C., was on the brief for amicus curiae appellants have brought, we af- urging reversal and remand for discovery firm the district court’s decision. and trial. John Jr., H.E. Bayly, Asst. Atty., U.S. BaCkground I. Washington, D.C., with whom Stanley S. In 1972 Congress enacted the State and Harris, Atty., U.S. Royce C. Lamberth and Local Fiscal Assistance Act1 (Revenue R. Craig Lawrence, Asst. Attys., Sharing Act), thereby giving legal effect to Isen, Richard S. Bruce H. Cameron and a concept which had proposed been inter- Bonnie Gay, L. Attys., Dept, of Treasury, mittently for more than years2 —that Washington, D.C., were on the brief for the federal government general make reve- appellees. Michael Ryan J. and Kenneth M. nue grants to state and governments local Raisler, Asst. U.S. Attys., Washington, D.C., with no strings However, attached.3

also entered appearances for appellees. idea of providing state govern- and local ments with unlimited flexibility Before did ROBINSON, not re- Chief Judge, and ceive support. unanimous WRIGHT, Some TAMM, members MacKINNON, WIL- of Congress KEY, were WALD, disturbed MIKVA, specter EDWARDS, GINS- of permitting BURG, officials, state and local BORK who SCALIA, Circuit Judges. had ignored sometimes or violated the civil Opinion for the Court filed by rights Circuit women, minorities and to expend Judge WILKEY. federal funds without some accountability.4 92-512, (1972) (codi- 86 Stat. percent 1. Pub.L. No. corporate Federal individual and fied, amended, as at 31 income taxes raised within the State.” (1976 Supp. 1980)). Cong.Rec. & IV (remarks Rep. Ander- son). general 2. “A form of sharing revenue was actu- Cong., S.Rep. 92d 2d Sess. No. ally operation early as 1836 ... [when] reprinted in 1972 U.S. Code Cong. & Ad.News nearly $28 deposited million ... was with the 3874, 3876. governments.... State See, e.g., Rights Aspects Civti Rev- General century, congressional “In this attempts to Sharing: Hearings enue tee Before the Subcommit- secure sharing Federal tax date back to 1949 Rights on Civil and Constitutional when Congress] a Member [of from Kansas Judiciary, Cong., House on the Committee 94th introduced a bill to transfer to State treasuries 1st Sess. had filed 122; each and that included section legislation Accordingly, the the ORS complaint and local state prohibited administrative provision which was complaint sharing initial using revenue After from avail. no governments case, dismissed that discriminated court filed, programs the district funds origin, standing or sex.5 color, race, national lacked appellants basis holding that appeal, On actions. the ORS’s challenge program sharing revenue 1976 the In decision.12 reversed court respond- Congress, that time At extended.6 Office Reve- complaints that ing to the amended filed appellants remand On adequately (ORS) was nue the present focus is the complaint compliance government monitoring first complaint In dispute. (sec- provision7 the nondiscrimination Reve- had violated the ORS alleged of section scope 122), broadened tion “failing to adhere Sharing Act nue the ORS was timetables 122,8 specified for limits” time regulatory statutory com- discrimination resolving meet complaints and resolving discrimination suits citizen private and authorized plaints,9 other take impose sanctions failing provision.10 enforce the rights “civil the to enforce effectively steps organiza- of group 22 March On also Appellants program.”13 enforcement present brought the and individuals11 tions perform failure ORS’s that'the alleged Secretary of the Trea- the against action Pro- the Administrative violated its duties ORS, the the of Director the sury, Fifth Amend- and the (APA) Act14 cedure of the Rights Branch Civil of the Chief ment.15 alleged appellants complaint In their ORS. commen- appellants, sought by The relief in a resided appellants the each of the scope the nationwide surate the under funds received locality which tar- The broad based. suit, extremely was Act; jurisdiction that the Sharing Revenue civil entire the ORS’s was the action get those funds using lived was each in which Appellants effort. rights enforcement violation discriminatory manner in a re- who of two individuals consists 92-512, 86 Stat. § No. 5. Pub.L. organizations lo- seven amended, in California side 31 U.S.C. (codified, as (1972) Tennessee, and Califor- Pennsylvania, cated (1976)). § Original at i. Appellants’ Brief nia. 94-488, 90 Stat. 2341 No. 6. Pub.L. again 1980. Pub.L. program renewed Employment was v. Blumen for Full Committee 12. that time 96-604, At Stat. (D.C.Cir.1979). No. funding thal, out, phased governments was to state shar- all revenue 1 October so that since Complaint at 66. ¶ First Amended Plaintiff’s 13. govern- local made to ing grants been alleged ORS violated the Appellants also 1981). 1226(a)(1) (Supp. V § ments. U.S.C. of non “failing notices to issue Act September expire 30 program will entire holdings” receiving compliance after Id. Congress renew it. acts to 1983 unless illegal dis- engaged in governments were 1224(d)(2). § However, hold- none Id. crimination. any of the relates ings the ORS received 4. 7. note 67. appellants. See infra remaining 94-488, Stat. 2350-51 § No. 8. Pub.L. (1976). See Plaintiffs’ 1242(a) (1976)). 701-706 §§ 5 U.S.C. (codified § U.S.C. 14. at 31 Complaint at 69. ¶ First Amended (codified at 31 8,7, Stat. 2350-52 Id. §§ (1976)). 1242(b), 1245 §§ U.S.C. Complaint at ¶ First Amended Plaintiffs’ they were entitled argued Appellants also (codified at 31 Stat. at Id. § Act, U.S.C. Mandamus under to relief (1976)). § U.S.C. Title violated (1976), and that ORS Rights Act of of the Civil VI group com- was point 11. At one 1980). Supp. IV (1976 & 2000d-2000d-6 §§ organizations individu- and two posed of eleven argu- appellants’ mandamus address we While Complaint at First Amended Plaintiffs’ als. 84-85, district ment, at notes infra text see Dela- the Blind for of and Council ¶¶ was not claim Title VI court’s dismissal (D.D.C. Regan, Valley, No. 76-467 Inc. v. ware appealed. group However, present 1981). 4 Feb. court, alia, asked the inter criminatory recipients order ORS acts of of revenue (1) sharing funding “ensure that revenue sharing funds. We further conclude that is not govern- awarded to state and local Congress the private actions has authorized agencies engage mental in discrimi- adequate afford an remedy within the natory practices,”16 (2) regulations “issue meaning persons of the APA to aggrieved which adequately enforce civil [ORS’s] by violations of the Sharing Revenue Act’s rights (3) obligations,”17 submit a “good nondiscrimination requirements. We there- request budgetary faith for each annual fore affirm district court’s decision. appropriation which provision includes for compliance positions sufficient to secure Implied II. Cause of Action Under 122,”18 duties under fill [ORS’s] Sharing Revenue Act “each civil rights compliance position imme- diately upon opening.”19 Appellants first contend that the Reve- requested also that the district court retain nue Act creates federal cause jurisdiction action until had the ORS failing ORS to inves- “fully complied with the orders” issued tigate complaints against sharing revenue essence, the court.20 In appellants asserted recipients fund and to adequately monitor that the adequately enforcing compliance rights with the Act’s civil safe- provision, they nondiscrimination guards. Appellants point are unable to asked the court to do whatever was neces- provision expressly the Act which sary improved ensure that the its ORS Thus, creates such a cause of action. we performance—including specific directions accept argument can this only if we con- regulations on what to issue and what private right clude that the of action appel- requests budgetary to make Congress.21 of lants implied describe should be from the February On 4 the district court statute. An examination of the relevant granted the motion ORS’s to dismiss the factors, however, convinces us that such an complaint, that concluding appellants had implied. action should cognizable failed to state a legally claim for In determining private whether a relief. The district judgment court’s was right affirmed of action panel implied should from court an statute, unpublished decision 1 February filed 1982. federal “the ultimate issue is 2 August On 1982 appellants’ suggestion for whether intended to Congress pri create rehearing granted en banc was right the vate action.”22 The four factors panel’s February 1982 decision was vacated. Supreme outlined the Court Cort provide through Ash23 “criteria We agree with the court district this intent be discerned.”24 These [can] Congress has not private authorized a ac- are: factors against tion the type appellants ORS of Instead, First, “one maintain. is the of the class for Congress has au- private specific thorized suits to check especial dis- whose benefit the statute was Instead, sharing Complaint, Prayer 16. First Plaintiffs’ Amended it is an “in funds.” action Relief, require D. officials to nature mandamus ¶ perform statutory generally, their duties” rath- specific than er in a few instances. Plaintiffs’ Id, 17. E.¶ Complaint First Amendment at 4.¶ Id, G(l). 18. ¶ Club, 22. v. Sierra 451 U.S. California 1775, 1778, 68 L.Ed.2d 101 S.Ct. Id, G(2). ¶ U.S. 45 L.Ed.2d 26 Id, I.¶ Club, complaint forthrightly In their 24. California v. Sierra Passman, (quoting state that the basis plaints is “not of their action com- Davis S.Ct. at 1778 2264, 2275, specific acts of discrimination government recipients (1979)). the ... of revenue L.Ed.2d 846 enacted,” might was the ORS is, gress does the statute aware ...—that com- right discrimination create federal favor of handle adequately Second, is man- plaintiff? deliberately there indication it structured plaints, intent, legislative explicit implicit, sharing nondiscrimi- which revenue ner in deny a remedy either to create such or to could be monitored obligations nation Third, it one? ... is consistent with large avoiding view to challenged with a underlying legislative of the purposes the ORS’s staff. expansion of remedy such a for the imply scheme to expanded the 1976 amendments plaintiff? finally, ... And cause en- scope of the nondiscrimination ORS’s traditionally relegated one time and established authority30 forcement law, basically an state area concern act.31 was to within which limits States, inappro- so that it would be to be performance was of the ORS’s Review priate'to infer a of action based cause Comp- Congress. The monitored closely on solely federal law?25 to review the troller General32 was directed assuming first and fourth Even report and to to Con- performance ORS’s Cort factors appellants’ can be resolved in “evaluate so its members could gress favor, explicit im- consideration of the operations under compliance intent, coupled with plicit legislative [Act],”33 presumably make whatever analysis underlying purposes necessary. Con- adjustments they deemed scheme, requires us legislative enforcement aided gress’ oversight function further argument. to reject appellants’ annually by the that the ORS requirement Scheme A. Nature of the Enforcement analysis with a “detailed provide Congress comply . taken to .. the measures sharing inception, the revenue

From section premised strings” [122].”34 the “no program was categorical to the philosophy, in contrast citi augmented private An role for Thus, in existence.26 grant programs then in the 1976 expressly zens was delineated relatively to have a small ORS was First, legislation. the state and provisions staff to the of section administer required public to hold governments were on placed was and extensive reliance the hearings “citizens shall have at which auditing powers investigative and oral provide written opportunity This agencies.27 other state and federal uses of possible comment on the [revenue ade- prove enforcement scheme did This afforded citizens sharing] funds.”35 however,28 quate, and in 1976 when illegal the chance to discrimina extended, spotlight sharing program revenue importance tion at the outset. Of more changes were made in the enforcement were, in dispute, private citizens resulting present A review of the mechanism.29 to initiate way, a limited also authorized scheme shows that while Con- enforcement Ash, supra 28. See 7. text at note Cort 25. 422 U.S. at omitted). original) (citations (emphasis 29. See 8-10. text at notes Cong., 26. 92d 2d Sess. S.Rep. No. 1242(d) Cong. 1242(b)(2) (3), reprinted in 1972 U.S.Code 30. 31 U.S.C. & §§ & Ad.News 3874, 3876. Id, 1242(b), 1245. §§ 31. Rights Aspects of 27. See Civil General Revenue Hearing Sharing: on Before the Subcommittee Id., 1243(c)(8). Rights Rights § Civil Constitutional Judiciary, Cong., House Committee on 93rd Id., 1243(c)(9). (1973); State and Local Fiscal § 1st Sess. 3-6 Hearings Assistance Act: on H.R. 6558 Id, 1241(f)(1). Related Bills before Subcommittee § Operations, House Committee Government id., Id., Cong., 1241(b)(2). 1241(b)(1). See also 94th 1st Sess. post-budget compliance review. Under the B. Expressions of Legislative Intent law, persons aggrieved by violations of Prior to 1976 there was no express pri- provision nondiscrimination may file an vate right of action in the Revenue Sharing administrative complaint with the ORS.36 However, Act. some courts had held that a Within ninety days of the filing, private ORS is cause of action could be implied directed Act,42 under conducted an investigation in one of those suits ORS was a to have made a co-defendant. finding.37 If the ORS contend that section 124 merely codified determines the recipient entity has those Thus, decisions. they argue, a suit “more likely than not” violated the nondis- like the present one was not foreclosed by provision,38 crimination various enforce- the passage of section 124. separate Three ment proceedings are to be initiated under provisions of the section are cited as sup- section 122(b).39 If, hand, on the other port for this conclusion. ORS “fails to issue a determination” within First, appellants note that while section the ninety day period, or if it determines 124 provides for a civil action any ag- the recipient has “not failed to com- grieved person whenever a state or local ply” with the nondiscrimination provision, government has engaged in any action or complainant is deemed to have exhaust- practice prohibited by the Revenue Sharing ed his administrative remedies and he is Act43 it does not expressly delineate who entitled bring an action under section can be a defendant in such a suit. Appel- 124(a).40 Thus, Congress was aware that argue lants it is possible therefore might fail to act on administrative infer that the ORS can be a defendant complaints within the ninety-day period and such an action. it chose give the aggrieved persons the Second, appellants point to the section sole remedy of filing a suit under section 124(e) provision that attorneys’ may fees 124. Giving private citizens remedy out- awarded “to the prevailing party, other side section 124 for the ORS’s failure to than the United States ... and the United investigate and up follow on complaints States shall be liable for fees and costs the would significantly alter the scheme Con- same as a private person.”44 This, appel- gress Therefore, crafted. unless section 124 maintain, lants is a further indication that authorizes the type of suit appellants have the United (in States the form of ORS) brought, they are not entitled to bring it. can be under sued section 124. After examining legislative history be- Finally, appellants remind us that in a hind section we conclude that Congress suit under section 124 the court empow- did not intend to private authorize citizens ered to “grant as relief to the to bring suit under that section naming the temporary restraining order, preliminary or ORS the sole or a principal defendant.41 permanent injunction order, other or includ- Id., 1244(d). 36. § however, may, 41. joined The ORS be as a nom- purposes inal defendant of relief. See infra Id., 37. § 1245. possible may 68. is also It that the ORS circumstances, be a defendant in other limited Id., 1242(c)(4). 38. § although dowe not decide now that issue. See infra note 67. Id, 1242(b). 39. § City 42. Chicago, United States v. of Id., 1244(d). 40. 124(a) provides: § Section F.Supp. (N.D.Ill.), aff'd, (7th government Whenever a State or a unit of Cir.1975); Massell, Mathews v. government, any local employee or officer or (N.D.Ga.1973). City Chicago, In of the acting thereof capacity, in an official has en- joined ORS was as a defendant. infra text gaged engaging any or is practice in act or at notes 46-47. prohibited by chapter, upon this exhaustion remedies, of administrative may a civil action 1244(a) (1976). 43. 31 § be person aggrieved instituted the in an appropriate United States district or in court Id, general jurisdiction. 1244(e). a State of court federal on the focus does section termination, repay- or suspension, ing the confer- House The activities. government’s pay- any further funds, placing or of ment the bill of the version ees, explaining in pending in escrow chapter this ments under conference, de- by the adopted was Appel- which litigation.”45 the of the outcome section under of a suit the nature scribed power to order court’s that the argue lants any action, alleging “This necessarily follows: 124 as funding termination of a Act, by a of this provisions as a of the designated be violation can the ORS that implies govern- of local a unit or arguments government a suit. These State in such defendant temporary as a relief such ment, seek could review. attentive do not survive ....”49 restraining order is based position entire First, appellants’ an exami- importantly, a suit most Finally, that before premise on the legislation of the against history mounted of the be nation could this nature ultimately enacted is not sound. However, premise version that that reveals ORS. Congress de- as a involved of members was views the ORS Although reflects ORS, the Rev- ensuring under suit pre-1976 on in one intent were fendant who on focused Act,46 resources, suit would not enue its limited As local suits. particular in section in discrimination defendant principal not on Revénue Department), original Chicago Police (the date expiration complaint- of the ORS’s House Sub- failure approached, nationwide Sharing Act Indeed, the order Relations system. Intergovernmental processing on committee Chicago was City com- in sets the ORS two against held Resources Human court found district after to evaluate hearings issued order prehensive engaged was government deter- the local working program how Thus, contrary form, pro- discrimination.47 illegal in what whether, and mine prece- pre-1976 no argument, appellants’ The Subcom- extended.50 should gram suit type of exists for the proposals dent range a wide examined mittee argu- Appellants’ seek maintain. debate, now submitted and, after substantial codi- merely amendment the 1976 ment Committee the House bill clean unavailing. is therefore existing law fied sub- bill Operations.51 Government represented Committee to the mitted appears terms by its Further, statute wishing a forces “those among compromise local state targeted suits basically program extension simple does section Although governments. wishing to forces and those form its present defend- potential delineate expressly turning it program alter drastically aggriev- that an state does ants, the section certain reform for the instrument into only when of action a cause has person ed activities government local State or a unit government “a State simply terminate wishing forces those act engaging ... government compro- This “delicate” program.”52 chapter.”48 practice prohibited Cong., 2d Sess. 94th H.Rep. added). Id., (emphasis No. 1244(b) Cong. & Ad.News reprinted in U.S. Code Chicago, City added). (emphasis States 46. United aff’d, (7th F.2d 695 (N.D.Ill.), F.Supp. 329 Cir.1975). Cong., I), 2d (Part 94th No. H.Rep. Cong.Rec. also See (1976). Sess. was appears the ORS that Id. 47. at 335. It Fountain). Rep. (remarks of merely Chicago City of in joined a defendant funding if the terminate would that to ensure (Part Cong., 2d 94th I), 94-1165 H.Rep. 51. No. their suit in plaintiffs were successful Cong.Rec. See also (1976). 4-5 Sess. government. decision does Our the local Fountain). Rep. (remarks of infra 68. See possibility. out rule Rep. (remarks CongRec. Steel- of 52. (emphasis add- 1244(a) (1976) 48.31 man). ed). mise was changed by Committee,53 the ment. The of role the Justice Depart- adopted a “number of amend- ment should be the enforcement of the ments,” and reported the amended bill to civil rights provision through litigation.58 the entire House. These members Congress were clearly Several intent on Committee, members the ensuring while the ORS not be a supporting the principal Committee bill party-defendant because of ain section 124 their “strong commitment they the felt that General while the Subcom- Revenue mittee Sharing concept,”55 bill accomplished noted their purpose, dissatisfaction with some of the Committee bill did changes not. made Committee expressed their The dissatisfied members’ wish that hope that the full House “modify would “injurious provisions” introduced injurious provisions.”56 One of Com- (including Committee the nondiscrimination mittee amendments to which the dissatis- enforcement provision) would be modified fied legislators objected the change in by the entire House59 was soon realized. provisions.57 nondiscrimination After Representative (one Horton of the dissatis- noting specific differences between fied members) attempted to substitute the version adopted by the Committee Subcommittee bill for the version adopted originally proposed by Subcommittee, by the Committee.60 He abandoned that the dissatisfied members stated: effort, however, when Representative question central is whether the Unit- Fountain offered to substitute “the bill ap- ed government States be posi- shall proved subcommittee after intensive

tion of defendant or plaintiff civil and careful consideration of this matter, rights enforcement cases. If the United together with the seven noncontroversial States becomes a in every defendant civil amendments adopted by the full commit- rights ease involving revenue sharing tee.” version section 12462 con- funds, its capacity to enforce laws will be tained in the Fountain substitute was iden- severely limited. The Justice Depart- tical to that contained in the Horton substi- ment’s powers enforcement tute, which was the Subcommittee bill.63 greatly strengthened if private such suits The House ultimately adopted this version were authorized against State 124,64 section as did the Senate.65 As governments, but not the Federal govern- earlier, noted the Subcommittee bill was 53. (remarks Id. See also id. Rep. (remarks 61. 122 Rep. Cong.Rec. Foun- (“In Horton) my experience all House, tain) I (emphasis added). ascertaining After never destroyed just saw bill so a few the Committee amendments contained in the hours as occurred in Oper- the full Government Fountain substitute were not the ones to which ations adopted Committee when we some of objected, Representa- dissatisfied members amendments.”); these (remarks id. at 17074 support tive Horton shifted his to that substi- Rep. Fuqua). tute. Id. at 17342. H.Rep. (Part 54. I), No. Cong., 94-1165 94th 2d House, 62. private As introduced in the civil Sess. 5 action was contained section 125. See provision 17340. The Cong.Rec. became section (Additional 55. Id. at 115 Reps. Horton, views of 124 after the Senate changes made various Erlenbom, Wydler, Brown, McCloskey, C. the entire Act. The substance section Steiger, Thone, Steelman, Pritchard, Forsythe, 124(a), however, unchanged. was left infra Hasten, Gradison, Brown). and G. note 65. 56. Id. Compare 63. Cong.Rec. 17340 with id. 17337. 57. Id. at 111-12. Cong.Rec. 17368, 64. 122 (emphasis Id. added). at 112 59. See text 65. 122 at note 56. Cong.Rec. 30326-29 The Senate provision outlining did add a administrative (remarks exhausted, Cong.Rec. Rep. remedies which had to Hor- Cong. ton). See also id. at (1976), provision Rec. and a authoriz- the sum, In an examination “against to suits

designed private authorize the legisla scheme and enforcement but not the overall governments, State or local of that the enactment Thus, history behind government.”66 the version tive Federal was Congress convinces us that by scheme ultimately adopted Con- section al agency inaction type that the to focus aware gress legislative reflects a intent occur, it chose and that leged could sharing fund here67 private actions on revenue principally against private to suits the authorize and not on ORS. recipients appeal. they parties See attorneys’ are to ing but not fees. Cong.Rec. Original Certificate, Appellants’ However, 8(c) Brief (1976). the of section Rule House version And, unchanged provision although the 124(a) for left the the Council was so that at i. Inc., County Valley, originally serves became was identical to that law Blind of Delaware Compare area, Philadelphia people offered the Subcommittee. see Plaintiffs’ in the 1244(a) (1976) represents Complaint § it at First Amended Cong.Rec. ¶ persons, not racial minori the interests of blind ties, groups discriminated the Philadelphia which were (Part I), Cong., H.Rep. No. 94th 2d 94-1165 against cases. in the cited text at notes 55- Sess. allegations Similarly, appellants’ ORS an City of employee Maria, Santa determined that the Obispo, county Luis of San and the the situation in decision deals Our California, compliance with were not in section alleged has failed which it is the ORS nevertheless, the ORS failed to 122 and that investigate respond adequately to to admin- agreement compliance with those into a enter complaints steps to or take increase istrative entities, Complaint at Plaintiffs’ First Amended capability not to do so. We do decide 43-44, 60-61, a are not sufficient state ¶¶ person aggrieved conduct of a a whether theory under the outlined cause of action sharing recipient that violates revenue fund required a not to enter is above. ORS directly 122(a) bring section against could compliance agreement with local a written if, a the after the ORS received ORS investigators government everytime one of its 1242(c)(1), “holding,” as in 31 U.S.C. § defined government is more that the local determines “finding,” 1242(c)(4), defined in section a as likely the Act. The in violation of than not proceed against local the the ORS refused govern- required to send the local ORS is first 1242(b) government required as 31 U.S.C. noncompliance 31 U.S.C. notice. ment government 1242(b)(1) (1976). is The local appellants judi complaint, cite seven In their present to the Secre- evidence then entitled to “holdings” they allege were received cial tary the discrimina- on the issues whether ORS, not did follow but which program whether was unlawful and tion Complaint up at Plaintiffs’ First Amended on. allegedly has been funded is in violation which by Rizzo, (Pennsylvania 9 E.P.D. v. ¶¶ 1242(b)(2). sharing at § revenue funds. Id. O’Neill, (E.D.Pa.1975); Pennsylvania v. ¶ 348 Secretary required to determine is then part, F.Supp. (E.D.Pa.1972), aff'd in violating government sec- is the local whether (3d Cir.1973)); part, in 473 F.2d 1029 vacated 1242(a). Secretary determines Id. If tion (Jones County, 19 at v. Milwaukee 35-38 ¶¶ government is in violation that the (E.D.Wis. 1979); United States E.P.D. ¶ Act, suspend temporarily revenue he must Milwaukee, (E.D.Wis. F.Supp. City hearing payments (pending sharing before an Green, 1977); Crockett judge) compliance law unless administrative (E.D.Wis. 1975), aff’d, (7th Cir. If, agreement hand, other is into. Id. entered (United Diego 1976)); v. San States ¶¶ Secretary that the local determines 30,154 County, (S.D.Cal.1979)). 20 E.P.D. ¶ Act, government he is is in violation of not However, allegations not sufficient to these Thus, anything. appellants required do theory a cause noted state of action under Secretary allege that the failed have failed preceding paragraph none in the because carry his under section because out duties holdings appellants in the cited present relates complaint forth do set the averments of the case. None of the resides steps which must occur before all of the Diego. Justicia either Milwaukee or San Casa agreement noncompliance must entered composed of indi which is Mexican-American possible appellants who into. It Diego, city county in the of San viduals they quali- question, if in the localities reside fy Complaint Plaintiffs’ First Amended at ¶ “aggrieved persons,” MAY able voluntarily this case. See dismissed from under the ORS Community a cause of action state Appendix at 119. Northside Joint paragraph, theory first articulated Design Latin Center and American Union We they this case. done so in Rights, organizations representing have not but Civil both theory Milwaukee, advanced persons that even if Plaintiffs’ First Amend case, paragraph basis of a sitúa- plaintiffs could be the Complaint first in this ed were ¶ the state or government local engaged in plaints in a timely manner constitutes final discrimination, rather against than agency action within the meaning of the ORS, whose limited might resources be APA.70 However, the APA judicial limits overburdened if the agency were cast in the review to “[ajgency action made reviewable role of principal defender in section 124 by statute final agency action for Thus, suits.68 we hold that the Revenue which there is no other adequate remedy in Sharing Act not provide does private a a court.”71 We already decided that cause of action the type brought by the action of the ORS challenged by appel appellants in this case.69 We therefore turn lants is not reviewable by statute.72 There to their arguments. other fore, in determining whether have stated cause a of action under III. Cause of Action Under APA, the key inquiry is whether section 124 Administrative Procedure Act provides an adequate remedy for the wrong Appellants contend even if allegedly on appellants inflicted by the complaint their does not a state cause of ORS. We conclude that it does. action under Act, the Revenue Sharing they still are entitled relief under APA. argue if, as we parties Both agree that the hold, failure to ORS’s section 124 is largely limited to suits process and resolve administrative com against state governments, and local it is an tion-specific (something suit do not (public we now institutions) the funds educational were decide) it could springboard not be used as a discriminating against entities plain- seeking grand for a nationwide suit scale However, relief. tiffs. First, distinguishable. Adams legislative history behind the statute attorneys’ may The fact that fees be award- (Title involved in Rights Adams VI of the Civil against ed the United States not does under- Act) was present different from that mine the important above conclusion. It is Act, Sharing case. Unlike the Revenue Title VI 124(e) provides note that “any pre- section designed strings” grant not as a “no vailing party" may attorneys’ recover fees. 31 was, therefore, scheme. There congressional emphasis not the same 1244(e) (1976) (emphasis U.S.C. added). § It limiting the size of does not prevailing plain- limit such awards to funding Second, agency’s Congress staff. tiffs. Since the United States can intervene as expressly provide did remedy a for the action, a in a section 124 31 U.S.C. agency’s 1244(c) failure enforce the nondiscrimina- (1976), provision permitting § a attor- provision neys’ Accordingly, tion of Title VI. against in Ad- fees the United States al- facing ams we were not government (which low the situation in which is the defend- Congress already suit) had ant how it attorneys’ section 124 indicated wanted to recover private fees discrimination suits United States if structured. the local government prevails. present Congress In expressly situation has provided remedy; primarily one directed to- power Nor does the court’s to order a termi- government, ward the local funding, nation of ORS. 1244(b) § U.S.C. (1976), detract from our conclusion. The ORS Congress can choose how it wants to enforce may joined aas nominal defendant in order provision. a nondiscrimination It is clear that relief, to obtain that as the district court noted. Congress knew how to create suits Council of and for the Blind of Delaware Val- directly against a federal which failed Inc., ley, 76-0467, slip op. (D.D.C. No. at 3 n. 3 carry statutorily imposed out duties. 1981). 4 Feb. participation Such limited ORS See, e.g., (1976) 1365(a)(2) (Federal in a section 124 suit would not alter the nature 1972); Water Control Pollution Amendments of the cause of action arises under that (Supp. (Clean 1981) 42 U.S.C. 7604 V Air Act “alleging section —one pro- ... violation of the 1970). Amendments of We therefore hesi- visions government [the Revenue Act] State Congress tant to infer that has authorized such government.” or a unit of local H. expressly say suits when it did not so. Cf. Cong., Rep. No. 94th 2d Sess. re- Redington, Touche Ross Co. v. & 2479, 2487, printed in Cong. 1976 U.S.Code & Ad.News L.Ed.2d Fund, 70. See Environmental Defense Inc. v. Appellants argue disposition that our Hardin, (D.C.Cir.1970). present case is prior controlled court’s Richardson, decision in Adams v. 480 F.2d 1159 (D.C.Cir.1973) (en banc). (emphasis added). 71. 5 U.S.C. plaintiffs § 704 In Adams brought directly against funding agency (HEW) though recipients even 72. See text notes 22-69. nationwide that one agreed we Even if pro- it not does remedy because inadequate several effective than to be more the failure would against ORS’s suit redress vide that mean suits, nondiscrimination that does not the statute’s enforce section is inade- pursued complaints Congress If the ORS provided command. remedy the comply observed, would the funded units adequately, court district As the quate.75 sooner, postulate, appellants the law with the Revenue provision nondiscrimination to to resort appellants for the need guarantee “to designed Sharing Act suits time-consuming section expensive, fi- not does government federal the that However, it is clear not would diminish.73 recipients discriminatory practices nance remedy would suit that a nationwide at all ag- Thus, person a funds.”76 federal than effectively grievances more appellants’ is of section a violation grieved If the 124 suits. district several section (1) a cessa- relief: types two entitled to requested relief the broad granted court (2) a or practice discriminatory the tion of be thereafter court the could appellants,74 Both funding. federal termination handling the supervise to ORS’s upon called under relief available types of of these sec- alleged violation every virtually re- 124,77 90-day exhaustion and the section to regard with slipped 122. the ORS tion If citi- aggrieved the that ensures quirement here, appel- issue at programs one of the lengthy to required endure not be zen will to the court hold the district lants could ask re- that obtaining in delays administrative proceeding a such contempt, in but agency favorably Indeed, the ORS acted had lief.78 the each time have to be initiated relief, while the complaints, appellants’ oversight. adequate short of ORS fell might quickly, more obtained possibly re- Therefore, the relief granting appellants under that available than more limited been necessarily not this suit would quested it could ORS, although the 124 since section court, al- to to need return obviate the order could compliance, voluntary seek judge one district empower though it would discrimina- stop the government the local of the ORS’s supervisor supreme to act as ar- if, as Therefore, appellants even tion. appro- role more activities —a enforcement effec- more suit would nationwide gue, a under Executive for priately the reserved suits, we hold section several tive than Congress. the oversight it when thus errs The dissent not. does Appellants’ 21-23. En Brief at Banc the “inconsistent charges is that our result Rather, it Congress.” 1551 n. Id. at will at notes 16-20. 74. See text congressional opposes the which is dissent the will. properly that the ORS’s adequate there is no other remedy of the remedy available under section 124. Since, available to the plaintiff-.84 as out- We conclude that such an action is unwar above, lined part in III an adequate remedy provides ranted. Section 124 the district is available to appellants, they may not court with all the tools it needs to vindicate extraordinary invoke the remedy afforded all the rights granted aggrieved persons by the Mandamus Act.85 Thus, under the Revenue Sharing Act.80 ion.82 What in this case where the statute and the legis tinuing supervision of an Executive agency role. To utilize our lative debates demonstrate an intent ference. inquiry into the activity ble discovery manner would be of the subcommittee shield the more seeking here is not enforcement er. amicus, a court. This is Discovery ongoing practices properly courts for which has agency an investigation is neither necessary but the broadest conducted of the magnitude suggested appellants ORS’s part overstepping particularly itself from only produced judicial power of its allegedly of the by Congressional and amicus are type of “the oversight broadest judicial condemnation inappropriate possible their ORS,”81 ineffective nor judicial specific in that proper inter possi prop funct con tionally protected interest. The agency’s tion because failure under the Fifth their complaint states a cause of action quired by state a cause of action under the Constitu of due vant pellants applicable regulations is of itself a violation does not. crimination agency’s liberty, ^[9] V. Cause of Action Under Appellants’ process.86 have been ORS’s a due follow the property.87 the Revenue complaints Fifth Amendment they deprives failure to process process Amendment. do deprived Such final applicable not In the in allegations claim argument establish that the manner re present rules They argue only their dis Act and constitu is that is rele do not ease it if the life, ap process appel failure to ORS’s

IV. Cause of Action Under extinguish their complaints lants’ does Mandamus Act Act, it denies them merely under the rights vindicating also of the argue they are enti- the assistance legally tled to relief under 28 In order to state a rights. 1361 which those Daiflon, Inc., Lawyers’ Corp. Rights 79. The Allied Committee Civil 85. See Chemical Under Law. 449 U.S. 101 S.Ct. 66 L.Ed.2d 193 (1980). 80. See text at notes 77-78. Appellants’ Original Brief 42. See also 81. Amicus Brief at 15. Reply Appellants’ En Banc Brief at 16. 1241(f), 1243(c)(9) (1976); 82. See 31 U.S.C. § Hearings supra note 4. See, Cleland, e.g., Devine v. (9th Cir.1980) (agency’s failure to fol- 83. 28 U.S.C. statutory procedure considered low the procedure followed after court found that Alexander, 84. See Jones v. constitutionally protect- deprived plaintiff of a (5th Cir.), denied, cert. property interest). ed L.Ed.2d that staff directed Congress staff. claim, federal constitutional cognizable the funds ensuring that part its to do deprivation than the allege must more program were under distributed agency carry will expectation that the man- discriminatory unlawfully used in an that such an If we concluded out its duties. time, was Congress ner. At the same under the Consti- protected expectation might not staff the small ORS aware that tution, swamped would be this court the dis- process all effectively to be able every because claims constitutional It received. it complaints crimination statutory norm from the deviation private citizens provide chose to therefore questions. raise constitutional situations, but that remedy in such with a constitutional response appellants’ Our toward state remedy was directed used up language is summed argument were involved which governments a similar denying when First Circuit by the means, By this the discrimination. Regional Director claim Congress powers, oversight the use of Opportunity Commis- Employment Equal system an enforcement to establish sought sion. use of federal stop the would both n [T]his alleged loss of case involves the en- discriminatory programs funds in assist- statutory rights to administrative not be staff would the small ORS sure that underlying, the vindication of in ance De- of the Justice into a branch converted statutory and constitutional fundamental Division. Rights partment’s Civil have interests. The interests themselves we be- that the balance urge Appellants lost, only help Congress not been at has not worked. arrived Congress lieve in vin- charging parties receive intended provided, However, remedy Congress that such rights. We think dicating those so- as a less effective broad perhaps while rights, they “liberty if statutory appellants than measure cial reform meaning of all within the property” individu- desire, to redress their adequate is Clause, tangential are the Due Process so at- reject their We therefore injuries. al thrust of Shar- to central [Revenue over- perpetual in a the courts tempt put deprivation ing] rights —for agency. respect with sight position remedy an provide did a Congress —that appellants conclude Because we and should of action cannot implied right claim for legally cognizable failed to state Indeed, were we to here. not be found court is relief, of the district judgment is right assistance find [ORS] Affirmed. implied right an protected by Amendment, then ev- in Fifth found ROBINSON, III, W. SPOTTSWOOD subject ery federal bureaucrat would joined J. with whom SKELLY Judge, Chief minute review of the most judicial WALD, T. WRIGHT, MIKVA HARRY they as af- aspects responsibilities of his concurring in EDWARDS, Judges, Circuit is a public. fect members of the Such dissenting part: part and eager we are neither nor constitu- task Revenue the Office of tionally competent charge to undertake.88 of its virtual abdication Sharing (ORS) with VI. Conclusion provi- the nondiscrimination duty enforce Sharing The Act.1 Revenue sharing program, premised sions The revenue refus- claim is ORS of their strings” concept, gravamen is de- as it on the “no to inves- es, continually systematically, small signed operate relatively Maine, (1972), No. amended Pub.L. University as 86 Stat. 919 94-488, Francis-Sobel (codified (1976) Cir.), denied, as (1st cert. 90 Stat. (1979) (emphasis (1976 & 62 L.Ed.2d §§ amended at 31 U.S.C. original). 1980)) Revenue Supp. cited as IV [hereinafter Sharing Act], Officially, legislation State and is the Act, No. Fiscal Assistance Pub.L. Local tigate complaints administrative of statuto- the distribution of billions of federal dollars violations, ry implement pro- or to statutory great variety programs. for use precipitating funding suspension cedures Act, however, 122(a) of the Section bans recipients persist cutoff when therein. This specified types of in any discrimination inaction, contend, widespread appellants project wholly funded or partly through amounts to renunciation of its stat- sharing.3 implement revenue To this pro- utory responsibilities, only by remediable scription, Congress proce- has established judicial directing order ORS execute the requiring dures to ferret out discrim- ORS4 Act’s commands. recipients compli- ination fund and exact today, concluding The court that federal ance with the nondiscrimination edict.5 law the relief appellants discountenances insist, procedures, These con- ask, outright affirms an dismissal of their stantly ignored by ORS. injunction I appellants’ suit. think effort The central feature of the Act’s enforce- may be sustainable as a suitably class action ment triggering scheme is a mechanism invoking the Administrative Procedure summoning to launch re- compliance ORS Accordingly, Act.2 I would afford them upon views. is instructed to do so ORS opportunity to demonstrate that it is.

occurrence of either of two events. One is I filing complaint alleging of a recipient that a has discriminated Sharing Revenue Act enables state governments and local to share annually complainant.6 ORS is directed to then kinds, (codified including 2. Ch. 60 Stat. 237 several cutoff of funds and U.S.C.). Attorney amended scattered sections of 5 referral of violations to the General provisions Act, supra relevant are cited and discussed for civil suit. Revenue 122(b), (1972). Part III infra. 86 Stat. 932 The 1972 Act § Attorney empowered recipi- General to sue shall, engaged pattern practice person 3. “No ents crimination, in a or of dis- States United on the 122(c), ground race, color, sex, origin, id. 86 Stat. but did § of national or in, right participation private a excluded from be denied the not confer natory of action for discrimi- of, subjected benefits or be to discrimination use of shared revenues. At least one any court, however, program activity under or of a State federal entertained citizen suits government government, endeavoring infringements or unit of local to redress government 122(a), perceiving or unit receives funds made availa- a action under cause of § subchapter Act, chapter. Any ble I under of this 10 of the Administrative Procedure § prohibition against (1976), resting jurisdiction discrimination on the basis and U.S.C. § age Age (1976). under the upon Discrimination Act of See note 20 28 U.S.C. § respect qualified 1975 or with to an otherwise infra. handicapped provided individual as in section by general Deeply ineffective- troubled apply any 794 of title 29 shall also to such stood, it then as the medium ness of as § program activity. Any prohibition against or discrimination, Congress eradicating re- for religion, discrimination on the basis of or “improve enforce- vised the section 1976 to exemption prohibition, provided from such as level, provide ment at the Federal to better Rights in the Civil Act of 1964 or title VIII of federal, state, among and local coordination 11, 1968, April the Act of hereafter referred to rights agencies recipi- civil and to ensure that Rights apply as Civil any Act of shall also to conflicting subject to en- ents not be [would] program activity.” such or Revenue Shar- H.R.Rep. forcement standards.” No. Act, ing supra 122(a), note 31 U.S.C. § Cong., 94th 2d Sess. 12-13 [hereinafter 1242(a)(1) (1976). References § herein to dis- prime Report]. A factor in this cited as House types by crimination are to those forbidden Secretary recognition that the had decision that section. discretionary sufficiently utilized his au- thority compliance the Act’s to secure Secretary Treasury assigned 4. The has provisions. Id. at nondiscrimination During responsibility discharging ORS the amending proc- of the 1976 course imposed upon duties him the Act. 31 C.F.R. ess, procedures the Act’s enforcement assumed (1981). 51.1 § present their form. Act, Sharing originally adopted 5. As 6.Revenue the Revenue 1244(d), 124(d), 125(1), Secretary §§ Act authorized the 31 U.S.C. §§ to seek compliance (1976). through 1245(1) administrative action of a that a revenue sharer five court to make investigation, and conduct an charge Thereupon, within preliminary ruling on engaged in discrimination. has likely than If finds it “more days.7 ORS course. A no- pursue a similar must ORS violated, a 122(a) has been not” that Section transmitted must be noncompliance tice of sent to the noncompliance must be notice of days,10 ten ORS offender within to the days days.8 within ten Within 30 recipient days within 30 un- suspend payments must sus- given, must after notice has been ORS compliance into a the offender enters less revenue-sharing unless payments pend hearing.11 for a or asks agreement agree- a compliance enters into recipient of an correction judicial seek hearing respect requests ment or these stat- obey accusation.9 refusal ORS asserted commands, specif- proffer eleven utory Act in which the The second situation repeated as ic incidents illustrative receipt of notice enjoins proceed pervasive claim duty.12 They derelictions finding by another administra- by ORS of noncompli- sharing, sent notices but neither If ORS § Id. 31 U.S.C. § required implicated as the localities the 90- ance to a determination within does not issue day period, 1242(b)(1) (1976), recipient 122(b)(1), nor § 31 U.S.C. § if it determines that proceedings fund-suspension comply” man- nondiscrim- instituted failed to with the has “not 1242(b)(2) mandate, aggrieved 122(b)(2), § citizen is 31 U.S.C. § ination dated (1976). Complaint Joint his administrative deemed to have exhausted See Amended ¶ bring Pennsylvania empowered 36, referring (J.App.) a civil Appendix and is remedies 1224(d) 124(d), (E.D.Pa.), O’Neill, F.Supp. § Id. U.S.C. aff’d § action. (1976). v. (3d part, part 473 F.2d vacated in Philadelphia po- Cir.1972) (hiring practices of 1242(b)(1), 122(b)(1), (c)(4), 31 U.S.C. § Id. § discriminatory), racially department found lice (c)(4) (1976). Rizzo, Pennsylvania EPD v. ¶ procedures 1975) (employment (E.D.Pa. Phil- 1242(b)(2). 122(b)(2), At § Id. racially adelphia department dis- found fire recipient may dispute hearing, 36, J.App. criminatory); Complaint Amended ¶ finding. agency’s preliminary The admin- Id. City referring of Milwau- to United States hearing may judge conducting the istrative law (pay kee, (E.D.Wis.1977) F.Supp. 1371 decision after or reverse the initial ORS affirm complete discriminatory city practices basis found evidence, and must rest review of the 37, J.App. Complaint sex); Amended ¶ findings upon the record. 31 C.F.R. his entire Green, referring to Crockett 51.66 aff’d, (7th (E.D.Wis.1975), Cir. city 1976) (employment practices ra- found Act, 1, 10. Revenue Sharing supra note Complaint cially discriminatory); Amended 1242(b)(1) (1976). 122(b)(1), 31 U.S.C. § § 50, 40, referring J.App. to United States ¶ 3,154 (S.D.Cal.1979) Cty., 11. Id. § Diego 122(b)(2), 1242(b)(2). proce- 20 EPD San The § ¶ by by (promotional practices sheriffs maintained a citi- differs from that activated dure here discriminatory supra. basis of complaint. department A on at notes 6-9 found zen See text race, origin). practices con- whose have been revenue sharer sex and national by “holding,” in as described demned however, any present, party to of these no At may 122(c)(1), 1242(c)(1) (1976), 31 U.S.C. § § in this case. Three incidents five remains relitigate question be- of discrimination not challenging organizations ORS’ earlier 1, Act, Sharing supra note fore Revenue ORS. 122(b), noncompliance 31 U.S.C. § 122(b)(2)(A), (c)(2), U.S.C. § these, dropped 1242(b) (1976), out. Of § 1242(b)(2)(A), (c)(2) (1976). issue § plaintiffs, the Northside Com- two Milwaukee recipient program can raise is “whether Center, minority plan- munity Design urban activity exclu- or in connection with which [an] association, ning American Asso- the Latin discrimination, sion, denial, or violation Inc., organization Rights, ciation for Civil part charged in whole or in has been funded Spanish- interests of to advance the created under” the Act. Id. with funds made available 7, Complaint community, speaking Amended ¶ 1242(b)(2)(B) 122(b)(2)(B), 31 § § (1976). protested refusal to act J.App. ORS’ which findings receipt of dis- upon of federal-court 35-37, J.App. city, id. crimination ¶¶ 12. In their amended complaint, appellants cited appeal. parties See Brief for are alleged In ORS inaction. eleven incidents certificate). 8(c) (D.C.Cir. Rule Appellants 1at instances, appellants charge, these ORS five of organizational Similarly, of these the third findings of court was notified of federal district Justicia, represented plaintiffs, had Casa by programs funded revenue discrimination in habitually fails to respond Act, ORS to ad- and under the Administrative well, complaints, press ministrative compli- for Procedure Act as anee agreements, cut off funds or impose Court, The District ruling on appellees’ recipients other sanctions on flouting the dismiss, motion to concluded that “in view Act. They contend that these inactions are of the purposes of the judicially reviewable under nondiscrimination the Revenue persons by judicial finding Appellants affected of dis- further assert that in two instanc- ORS, Diego County’s upon receipt complaints, in crimination the San sheriff’s es of citizen department, compliance resulting Complaint see conducted a review Amended ¶ recipient 40, is, J.App. determination that gressed voluntary had trans- on its own motion for Act, compli- dismissal, but failed to secure a Fed.R.App.P. 41(b), longer see no agreement impose ance sanctions as de- organization, appellant the case. Another by 122(d)(2), 1242(d)(2) manded 31 U.S.C. § § Blind, protests Council of and for the ORS’ 42-47, Complaint See Amended ¶¶ noncompliance failure to send notices of to the 39-40, J.App. referring complaint to a filed City Philadelphia in the two instances cited. 3, 1975, against El Pueblo Unido on December however, difficulty, any is lack of indica- City Maria, California, charging of Santa any tion that Council constituents was city engaged employment practices that the involved in or affected either of those two blacks, against which discriminate Mexican- incidents; may standing thus Council have no Americans and women. ORS conducted a Majority Opinion (Maj. to attack them. See 21-22, 1977, compliance investigation April Op.) at n. 67. Nor is Council member of the locality and determined the was out of con- class—those who have filed administrative formity Act, with the but took no action ORS, infra, complaints with see note 39 —that against city to cut off funds or to secure a might litigate alleged be able to ORS’ deficien- 43-47, compliance agreement. J.App. Id. ¶¶ handling complaints. cies in the of such Ac- 38-40. ORS answered that fourteen months cordingly, claim of Council’s dereliction on subsequently city compli- it found the to be in part following ORS’ notification of discrimina- Complaint Answer ance. See to Amended findings by may prop- tion other tribunals 44, J.App. Complaint 60. See also Amended ¶ erly belong in the case. J.App. referring complaint to a ¶¶ however, Appellants allege, do that some of Equal Employ- filed for Concerned Citizens complaints them have filed administrative alleging Obispo County, ment California, that San Luis charging revenue-sharing recipients five on November followed a discrimination, prohibited and that similar practice employment against discrimination charges against have been on their filed behalf blacks, Mexican-Americans, Spanish-sumamed recipient, one additional and that none of these persons April and women. Pursuant to an grievances has received the consideration re- review, compliance ORS found the coun- quired Appellants the Act. so involved are ty to the Act. The amended be in violation of appropriate possi- members of the class I deem complaint, J.App. alleges that no com- ¶ bly qualified to maintain this action pliance agreement was ever executed between statutory infringements for relief from ORS county and ORS nor were sanctions processing complaints. of discrimination answer, imposed; J.App. in its ¶ See text infra at notes 36-44. charge. denies this El Pueblo Unido and Con- context, pertinent allegations In that Equal Employment cerned appellants also are Citizens statutory obliga- failure ORS’ to fulfill its Complaint here. Amended ¶ tions has manifested itself in three forms. 29-30; J.App. J.App. id. ¶ First, appellants claim that ORS has elected not claim that in two additional also investigations required by to initiate the investigations compliance were initia- instances 31 U.S.C. See Amended Com- filed, complaints citizen were but ted after 40-41, 38, plaint J.App. (administrative com- any findings by ¶¶ ORS were terminated without 1974, plaint by Operation May, filed Push in any compliance agreement or and without Tennessee, against City Memphis, alleg- of 55-56, J.App. (com- 41 sanctions. See id. ¶¶ ing city racially that the maintained discrimina- Laredo, plaint by Ernest on behalf of the filed 53-54, tory employment practices); id. Union, County alleging ¶¶ Tenants’ that Tulare J.App. (administrative complaint 40 California, filed County, engaged pattern Tulare in a Chapter, Magdaleno Yuba NAACP Sutter J. practice employment and of discrimination Eugene 57-58, and minorities); J.App. Bottello Elvertt Fields on Decem- against 41 id. ¶¶ 3, 1975, asserting County, ber (complaint Taxpayers that Sutter Cali- As- filed the Chicano fornia, engaged employment practices Oceanside, asserting City in sociation that the of race, California, engaged discriminatory employ- discriminate gin the basis of national ori- in Push, sex). Operation County practices). and NAACP Yuba The Tulare Tenants’ ment Chapter, Magdaleno Taxpayers Sutter J. and Eu- Association Bottello Union and the Chicano 11, 14, gene 8, appellants appellants Elvertt Fields are Id. here. Id. likewise are J.App. here. ¶¶ ¶ 6; 12, J.App. J.App. id. 30-31. ¶ 1538 Act,

provision Sharing agree majority of Revenue I with the the Reve- Act not confer a cause of Sharing nue does private remedy in section undenia- [124]13 type by appellants. action of the framed adequate in court bly provides remedy Congress designed statutory grievance grievances.”14 plaintiff’s each individual for judicial-review procedures to accommo- and basis, this the court held that On I con- pressed individually.18 date claims under any cause of had not stated action clude, colleagues, Congress, like in my Act,15 the the Administrative Procedure developing comprehensive plan this for ad- mandamus statute16 or the Due Process investigation ministrative and resolution of Clauses of the Constitution.17 position This for subse- situation-specific complaints and is now by majority my endorsed col- review,19 intend to quent judicial did not leagues. of action chal- thereby right create a new 1207, 5, 12; S.Rep. 124, supra No. 94th Act, 1, port, supra note Sharing note § Revenue 2627, reprinted in 1976 U.S. (1976). Cong., 2d Sess. § U.S.C. Cong. 5176-5177 [hereinafter & Ad.News Code 14. Council of Regan, Blind v. No. and for the Finding Report], ORS’ enforce- cited as Senate 4, 76-0467, (D.D.C. 1981) (memorandum Feb. unsatisfactory, provisions Con- these ment of gress, order) at 12-13. and 1976, 122’s elaborate in established § investigations compliance machinery and for 15. Id. at 13. 6-11 See notes at the level. review wary, accompanying how- Still text. 13, 20, referring 28 U.S.C. Id. at 14 n. failures, Congress ever, past because of ORS’ § eventuality parties private for the armed Regan, supra Blind v. of and for the Council affirmatively might respond a time- 14, at 14-15. complaint ly chal- an administrative manner discriminatory practices lenging of a funded 18. As the emphasized, Supreme im has Court 1720, Cong., H.R.Rep. 2d 94th No. unit. See plication private right of is a matter of a action Cong. 37, reprinted & in 1976 U.S.Code Sess. construction, statutory ulti must of mately “what cited as Conference Ad.News [hereinafter Congress in is whether be determined 34, reprinted Report, supra, Report]; Senate private remedy asserted.” tended to create 5184; Cong. & 1976 U.S.Code Ad.News in Cong.Rec. Lewis, Mortgage Advisors v. Transamerica (remarks 29904, (1976) 29906, 11, 15-16, L.Ed.2d 100 S.Ct. U.S. Brooke). weapon Long of Senators (1979) (private for cause action Congress supplied 31 U.S.C. § is § damages implied from 206 of § not to be remedy enabling conferring (1976), a citizen 1940); Act of see Touche Investment Advisors any organizations locali- to sue individuals ty using Redington, 442 U.S. Ross & Co. v. discriminatory revenues in a shared 2484-2485, 61 L.Ed.2d S.Ct. (no part, section In its most relevant manner. 17(a) implied private right from provides: damages at Act of 1934 of the Securities government or a unit a State Whenever re to accountants’ misstatements tributable ports); employee any government, officer or Passengers Corp. v. Na R.R. National capacity, acting has en- in an official Passengers, thereof Ass’n R.R. tional practice engaging act or gaged or is 38 L.Ed.2d 94 S.Ct. chapter, upon exhaustion language prohibited (1964) (express of the Am section may remedies, Act, legislative civil action interpreted light trak history of its of administrative aggrieved Act, person in an provides exclusive instituted and the whole be or in remedies, private court appropriate district no additional cause United States jurisdiction. implied). general has cau The Court court of action is to a State be abstractly 124(a), against looking judges at the Act § tioned desirability Revenue inferring private 1244(a) (1976). of action causes supposed purposes in efforts effectuate course, can, Pierce, actions Lynch, given Fen 19.Section Merrill of a statute. recipient. See note 353, 378-382, fund Curran, brought ner & Smith v. pro- expressly supra. section does This 72 L.Ed.2d joined as a defendant ORS can vide that suspension sought or termi- the relief when provisions inserted were Nondiscrimination 124(a), funding. recipient’s See § the of nation Sharing original in 1972 into the Revenue Act supra quoted note 1244(a) (1976), § 31 U.S.C. will guaranty Federal as a that the Government per- to § District Court construed discriminatory The or in state conduct not subsidize framing anof joinder, the to enable mit such through programs of revenue- allocations See suspension order. or termination sharing effective for the Blind of and monies. Council Regan, the and for Blind of Regan, supra citing Re- Council House note at lenging inquiry believe the properly ORS’ overall ends at response to this plan.20 But, unlike the majority, point. I do not appeal, By establishing note at 3 n. 3. compliance proce- On ORS does not a set of interpretation, my colleagues resulting mandatory suspension this contest dures in the sharing participation. payments proven Maj.Op. affirm that of revenue limited should that, persist, agree discrimination at note pension-termination I the insofar Committee en- as sus- has § laxity sured concerned, that the of the Office of Revenue actions are the enforcing congressionally-intended in the nondiscrimination role for ORS is that of requirement permitted of the Act shall not be See, purpose. a nominal defendant for that governments long- to however, continue. Local will no note 20 infra. rights er be to able evade civil enforcement through accounting reporting slick devices in pursuant Individual actions to con- § sharing the use of revenue funds. they Individu- grievances, fined as are to individual can- submitting complaints alleging rights als civil provide adequate systemic not redress for the longer many will violations no have to wait appellants allege. breakdowns See Part III in- years receiving months or even before re- a Nonetheless, injury fra. culmination of an sponse Sharing. from the Office of Revenue appellant but one failure to act on a —ORS’ Id. at 94. particular complaint confer alone —cannot Congress adopted approach, coupling this standing challenge on ORS’ con- nondiscretionary procedures enforcement with representatives duct as of a class. See Par- II provision conferring remedy. a citizen The press infra. can their bid for relief Report House noted that the 1972 Act did alleged systemic only they from ORS’ if failures provision contain such a but that the courts qualify representatives can as of a class of interpreted original “pri- had § to enable similarly persons protected harmed organizations representing vate citizens 122(a). See Part II § infra. their interests sue the United [to] States or not, however, This does institution foreclose recipient government using for shared revenues ORS, against defendant, of an action as sole for discriminatory 14; in a fashion.” Id. at see id. refusing particular comply in a instance to with pains point 102. The House took 122(b)(1), the of commands § rights out that ... continued “[these] under the 1242(b)(1) (1976). By provision, § this Con- revised 122.” Id. at 14. section gress explicitly ordered ORS to a notice send explicating preexisting judicially- In that the noncompliance days to a funded unit ten within private created action was to be codified in receipt holding of notice of a of discrimina- repeatedly amended the § House referred tribunal, making tion another or of the of a approval remedy to the citizen in utilized ORS, finding by against similar the revenue City Chicago, United States v. sharer. These directives cannot be deemed (N.D.Ill), opinion, aff'd 525 plaintiffs without merely precatory, ignores and if ORS them (7th Cir.1975). case, 695 sought In that 124(a), 1244(a) (1976), empowers § 31 U.S.C. § prohibiting court orders obtained private aggrieved party bring against suit revenue-sharing payments recipient, to a compel proceed against ORS it to alone Act, had been in found violation of the until targeted “holding,” local unit in the as defined discriminatory practices policies were 122(c)(1), 1242(c)(1) (1976), § U.S.C. § action, abandoned. The from commencement “finding,” 122(c)(4), in the as described in § resolution, through targeted elimination 1242(c)(4) injunc- U.S.C. § Section 124 agency plaintiffs dereliction. initiated type against tive of this relief process by filing Department with the of the only instances, lie these two once ORS Treasury complaint against an administrative proceeds specifically directs, private as the Act City Chicago, alleging city the using that the parties pursue injunctive could not route 122(a). shared revenues in § violation of example, further. For if the believes a Secretary Treasury The investigate of the elected compliance agreement inadequate, his charges, whereupon plain against locality recourse is a suit brought tiffs a civil action in the United States allegedly discriminating, joined District an for the District of Court Columbia nominal defendant. injunction ordering Secretary to take legislative history Examination of the against city remedial administrative action position. 1976 amendments fortifies this In enforcing statutory proscription aimed at amending Act, Congress recognized the 1972 against racially the use of shared funds for major deficiency supra. 124. See note 5 discriminatory purposes. Contemporaneously Committee on action, House acknowl- private Finance with this the Federal Govern edged “inadequately that ORS had used charges City Chicago [its] ment filed discretionary authority to enforce nondis- States District Court for the United provision,” Report, supra Illinois, charging crimination House Northern racial dis District Chicago police department. and recommended means of crimination securing city’s policies more effective prac of the em- enforcement That court found bargo discriminatory revenue-sharing employment patrol respect use of tices with offi discriminatory promotion sergeants funds: cers and

1540 re- particular the merit case plaintiffs “the the analysis is my of forefront At the some of relief that it suffices sought; not lief should complaint rule that accepted event, In either may be claim kind state warranted.23 failure to for

be dismissed his amend to allowed should plaintiff the the that doubt beyond appears it unless de- and should complaint support facts no set of prove can plaintiff appropriately,24 to a it appears if opportunity to nied him entitle his claim of a val- state cannot simply he certainty that not that It matters relief.”21 ad- id theory he legal claim.25 on prevail cannot exist he does impossibility of is whether That sort vances; rather, question complaint appellants’ Reading need here. Nor might succeed on theory.22 nominally, from discrimina- relief for ORS and tory sex. United grounds of race and both on activity. Chicago, 543 City 385 of v. States part, part rev’d in (N.D.Ill.1974), aff’d 45-46, 41, Gibson, 78 U.S. Conley 355 v. 21. plaintiffs 1977). then (7th 415 Cir. 549 F.2d Accord, 80, (1957). 99, 102, 84 2 L.Ed.2d findings, S.Ct. moved, basis of these on the 519, 521, Kerner, S.Ct. 92 404 U.S. v. to Haines of Columbia the District for Court District 652, (1972); v. 596, Jenkins 594, 654 30 L.Ed.2d revenue-sharing to the funds enjoin payment of 421-422, 411, McKeithen, 89 S.Ct. injunc U.S. 395 preliminary granted city. That court 404, 1849, 1843, 416-417 withholding 23 L.Ed.2d scheduled ordering funds tion Rogers Memorial v. city, opinion); (plurality Jones city. the interve- On motion for the 773, 51, 53, F.2d U.S.App.D.C. 442 Hosp., trans nor, action was 143 Columbia District of 395 of Illinois. District Northern to the 775 ferred F.Supp. pre That court continued at 337. 1331, revenue-shar liminary additional Court, on 1334 restraint F.2d 526 v. Bonner Circuit city. at 342. City ing payments Cir.1975), 946, Id. denied, to the 96 424 U.S. (8th rt. ce Chicago, Congressional to reference (1976); 1418, United 353 47 L.Ed.2d S.Ct. right private of action 162, (9th as illustrative Howell, Cir. 166 318 F.2d v. States amendments, House see preserved the 1976 King Burger 1963); Perington v. Wholesale 16, 3, 5, 102 n. supra at 98 n. Report, note Cir.1979). (10th 1369, Corp., n. 5 1375 631 F.2d Committee. the Conference within continued 18, supra This Report, note at 37. Conference history Agency, Redev. Norwalk v. Norwalk CORE revising Congress, in me convinces 1968); (2d Lada v. 920, Cir. 925-926 F.2d 395 1976, preexist- this retain desired the Act ing Cir.1957); (8th 211, Wilkie, 212-213 250 F.2d relief, 124 § extend the and thus to form 22, Howell, supra 318 note v. United States solely against remedy actions individual F.2d at 166. dictates to observe for refusal ORS 1242(b)(1) (1976). 122(b)(1), U.S.C. § 31 § See, U.S.App. State, Secretary Shapiro 162 v. 491, Gressette, 432 U.S. e.g., Morris v. 527, 25, 499 25n. 391, 534 & F.2d n. 398 & D.C. 506, 2411, 2418, 53 L.Ed.2d 97 S.Ct. grounds nom. Com sub (1974), other on aff’d 560, Bachowski, Dunlop (1977); v. 516 567, 614, Shapiro, 96 S.Ct. U.S. 424 v. missioner 377, 1857, 1851, 387 44 L.Ed.2d S.Ct. (1976); v. General 1062, Ballou 47 L.Ed.2d Gardner, 387 (1975); v. Laboratories Abbott Cir.1968); 398, (1st Co., F.2d Elec. 1507, 1511, 18 L.Ed.2d U.S. Co., Signal & McLaughlin Union Switch v. superficially matter related A Thomas, 1948); (3d v. Bonanno Cir. carefully distinguished, I do however. must be 1962). (9th Cir. 309 F.2d every position appellants’ not subscribe pre- 90-day limit fails to observe the time ORS Cars Import v. Citroen Motor Star 1244(d) (1976), 25. Lone 124(d), 31 U.S.C. § in § scribed Cir.1961); (5th Stebbins Corp., 288 F.2d complaints, investigation resolution Cir.1976), (7th Weaver, 537 F.2d right ce sue ORS complainant derives denied, might not rt. Congress directly. realized that Thomas, supra (1977); Bonanno timetable, L.Ed.2d and inserted be able to adhere Since, in ex save F.2d at note temper re- 124(d) mainly the exhaustion unlikely circumstances, is it treme parties by allowing private to seek quirement conclusively the face court can determine expedited basis. more on a relief in court plaintiff actu pleading whether 15; a defective Senate Report, note House claim, allow it is wise ally 34; can state Re- Report, supra Conference note Partnership v. Schlesinger Inv. Accordingly, amendment. port, supra at 37-38. 1982); (2d Cir. Corp., 671 F.2d Fluor simply grievance has that ORS when the Vision, v. House deadline, Austin party’s sole re- 90-day met the Cir.1967). (7th recipient, against the course is a light most beneficial to them26 and resolv- handicapped persons, women” and their or- ing favor,27 all factual they doubts their ganizational counterparts “who have filed no means the sole victims of file may ORS’ administrative complaints with .asserted inertia.28 With a presently un- alleging discrimination under Section [ORS] known number of other persons organi- 122 of the” Act.29 Deeming this legal- class situated, zations seemingly similarly it may ly satisfactory,30 appellants moved for class well appellants be that can meet the pre- certification.31 The District Court denied conditions for motion, certification as representa- prejudice, without on grounds tives of a class. It may that, also be the proposed class was overbroad in litigants, class they can attack alleged respects: ORS’ two it included those who have systemic failure to observe the yet ORS, Act’s di- not complaints filed group rectives for consideration and disposition of possibly encompassing countless unknown citizen complaints. blacks, Thus appellants, as Latino-Mexican-Americans, handi- members, class may be able to seek capped persons, women; relief of and the a kind which they cannot hope plaintiffs, obtain as named felt, the court were not individuals. majority ponder does not adequate representatives of women or the prospects, these they adequately nor can handicapped other than the blind.32 gauged us, on the record now before but in this ruling Since prejudice, without it my they view must be explored and found erects no barrier to reconsideration of the wanting before it can be said that this case certification,33 matter of class particularly is susceptible to dismissal. of a somewhat redefined class.34 And with inquiry threshold is whether there is that question inextricably up bound a plausible basis for assuming appel- the question of existence of a cause of lants can obtain pro- action,35 class certification to the propriety dismissing appel- test systemwide handling ORS’ of com- lants’ suit wholly dependent upon plaints. Court, In the District unavailability of class status. esti- By my professed to represent mate, a class composed case class certification is Black, Latino-Mexican-American, strong. “[a]ll McKeithen, 21, supra Jenkins v. note section 122 of the State and Local Government 421, 1849, 416; 1972, U.S. at 89 S.Ct. at 23 L.Ed.2d at Fiscal Assistance Act of as amended Wiley, 971, (3d Tunnell v. 514 F.2d 975 n. 6 Public Law 31 U.S.C. 1242.” Plain- Cir.1975); Hudnell, 247, Ward v. 366 F.2d tiffs’ Motion for Certification Class Action (5th Cir.1966); Jung Mining Co., 2a-b, v. K. & D. Regan Council of and for the Blind v. ¶ (filed 607, (7th Cir.1958); Loge F.2d v. United Aug. 1980), J.App. 67. States, (8th Cir.1981), 662 F.2d cert. denied, 72 L.Ed.2d 23(a), (b). 30. See Fed.R.Civ.P. (1982); Bord, McKinney v. De 507 F.2d (9th Cir.1974). 23(c)(1). 31. See id. States, U.S.App.D.C. 27. Schuler v. United Regan (order 32. Council of and for the Blind v. (1979); 617 F.2d Tunnell v. memorandum) (Jan. 9, 1981), (R.) Record Wiley, 6; supra note 514 F.2d at 975 n. Co., Davis H. Elliot Co. v. Caribbean Utils. (6th Cir.1975); Jung D. K. & Co., Mining supra 608; York, Vardaman, note 260 F.2d at 33. See New & St. L.R.R. v. C. McKinney Bord, (8th Cir.1950) (dismissal v. De 181 F.2d at 503. prejudice” “without leaves free to bring anew); Kennedy suit v. State Farm Mut. supra, 28. See notes 12 48 infra. Co., (E.D.Ark.1969) Auto. Ins. F.R.D. (same); Agricultural Southern Md. Ass’n v. composed define class as one States, (D.Md.1954) United 16 F.R.D. Black, Latino-Mexican-American, of “[a]ll (same). handicapped persons, organiza- women and up persons organized tions made of such accompanying 34. See notes 36-44 infra and improvement for the of the status of the afore- text. persons may mentioned who have filed or file complaints administrative with the Office Sharing alleging Revenue discrimination under III infra. Part should, fur- could, and indeed readily it

II formally who persons38 ther narrowed suit survives Surely appellants’ Thus to ORS.39 of discrimination complain that a requirement threshold class-action be, relatively refined, from there appel- as Already, exist.36 actually “class” composed case,40 a class the stage early class, only include it would project lants right common sharing a individuals only of protected group who within some those are plaintiffs,41 the named discrimination,37 to themselves 122(a) from by Section Miller, Practice and Gino’s, 71, Wright Federal 36. See Alexander Inc., & A. C. v. Consequently, 953, denied, Cir.), (3d 101 1760 § cert. 449 U.S. Procedure 74-75 358, (1980); the time v. at 217 Roman of an individual L.Ed.2d exclusion S.Ct. 66 1343, ESB, Inc., (4th imply en banc at 1348 Cir. not exclusion does 550 class is defined 258, MCA, Inc., Moreover, 1976); 45 F.R.D. judgment v. Weisman is entered. time Anderson, Dolgow (D.Del.1968); 43 v. viewpoint, 261 district pragmatic from a 472, (E.D.N.Y.1968). 491 F.R.D. those who with court is concerned only may members be class future “organizations Among are members them previously point, their at some extent that “Black, up of’ Latino-Mexican-American made claim grievance into a hypothetical matures persons handicapped “and women” [and] and organized may requested be relief upon which improvement of the status for the occurs, quali- person granted. When persons.” 29 su- See note the afore-mentioned member, if the present even class fies as a organizations pra. so constituted Members specifically those limited to is class definition protected individuals themselves injured already threatened been who 122(a). § injury by conduct. the defendants’ say groups actually of the This is all who class members the future Since 122(a) would discrimination thereby present shielded from necessarily injury class become suffer membership reflected in the relief, en- eligible a definition members 29, supra. Compare 37 joinder ous that the of all certification, members is int- nying held restrictedly48 more - complaints by -, 35, ers’ in the manner commanded 103 74 S.Ct. L.Ed.2d 48 the (1982). Beyond that, Act. certifying before class, the court must ascertain whether the Am., Corp. 42. See Giordano v. Radio of 183 requirements specified 23(b) further in Rule are Cir.1950); 558, (3d F.2d 560-561 remaeck DeB satisfied. Short, 733, (5th Cir.1970); er v. 433 F.2d 734 Mitchell, American Servicemen’s Union v. 54 46. See Plaintiffs’ Motion for Certification of 14, (D.D.C.1972); Katz, Rappaport F.R.D. 17 v. Action, 29, supra J.App. Class note 67. (S.D.N.Y.1974). 62 F.R.D. 512 Opposition 47. See Defendants’ to Plaintiffs’ Compare Narragansett Racing Berman v. Certification, Motion for Class Council of and Ass’n, 311, (1st Cir.1969), 414 F.2d 317 cert. (filed 10, Regan Sept. 1980), for the Blind v. denied, 1037, 682, 396 U.S. 90 24 S.Ct. L.Ed.2d J.App. 120-139. (1970); Dist., 681 United States v. School 616 895, (6th Cir.1980); F.2d 908-909 Alliance to The, Rochford, Repression 975, End v. District 565 F.2d 976- Court did not address the nu- (7th 1977); Community merosity 978 common-question Cir. Midwest and Coun demands of Dist., Chicago 457, cil v. 23(a)(1) apparent Park 87 explana- F.R.D. 459-460 Rule and (N .D.Ill.1980); Schwarzwalder, Fowler v. tion is that the court saw no reason to do I so. 721, F.Supp. (D.Minn.1972); 351 723 readily agree Cruz v. require- that neither of these two Califano, 314, (E.D.Pa.1978). 78 F.R.D. 316-317 certification, poses partic- ments an obstacle to ularly of the class as I would redefine it. See possess ample authority 44. Federal courts supra accompanying note 39 and text. bring acceptable redefine the class to it within “ Numerosity designed prevent is ‘to mem- 2, Lodge limits. Nix v. Fulton Int'l Ass’n of being unnecessarily bers of a small class from Machinists, 794, (5th Cir.1971), 452 F.2d 797 deprived rights day of their without a in court’ denied, 946, 2044, cert. 406 U.S. 32 opposing parties by only a few mem- (1972); 40, L.Ed.2d 332 Longshoremen’s Union, Gibson v. Local Int’l resorting bers of the class to Rule 23.” 7 C. 1259, 543 F.2d 1264 Miller, 40, Wright supra A.& note 1762 at (9th 1976); Taylor Safeway Stores, Cir. v. 524 593, quoting Rippey v. Denver United States 263, (10th Cir.1975); Voss, F.2d Curtis v. Bank, 704, F.Supp. (D.Colo.1966). Nat’l supra 582-583; Farring note 73 F.R.D. at Numerosity also fosters the interest of the Adjutant Mich., F.Supp. ton v. General of assuring exposition court in a full and fair (W.D.Mich.1980); Cyr Walls, v. parties practica- views all affected when it is (N.D.Tex.1977). 703-705 Similar join single proceeding. ble to them in a Al- ly, plaintiff may be allowed to amend in though the absolute number of class members order to reconstruct the class. DeBremaecker factor, determining joinder is not the sole will Short, supra 735; v. note 433 F.2d at War usually impracticable when the class is Bank, (8th ner v. First Nat’l 236 F.2d large. Kennedy, supra See 3B J. Moore & J. Cir.), denied, cert. 40, 23.05[1], determining practi- note In ¶ (1956); Springs L.Ed.2d 162 Harris v. Palm considered, cability joinder, courts have Estates, Alpine (9th 329 F.2d Cir. class, geographical addition to size of the 1964). members, diversity ability of class of indi- separate 23(a). prereq vidual claimants to institute suits and Fed.R.Civ.P. All four of these Co., type sought. Newburg, uisites must relief be met. Huff v. N.D. See 1 H. Cass (5th 1973); Cir. en Class Actions banc County Angeles, representation Jordan v. of Los The class amenable to here 1311, 1318 (9th Cir.), grounds, persons, Hispanic vacated on other and would consist of black determining inquiry central typical were not appellants’ claims 23(a)(3) has Rule class proposed not whether class, appellants and that representa- “class is whether typicality their because adequately the class represent ‘possesses] class part tive other of the from those [is] differed injuries injury’ the same conclusions, suffers same interest class.49 These of the members for The demand the class members.”51 question.50 believe, open serious I are Co., F.R.D. Virginia Elec. Power women, handicapped persons Cottrell who Commonality is (E.D.Va.1974). alleging complaint dis filed an administrative linking question lawof sharing. “where recipient to be found of revenue crimination substantially related to accompanying supra members text. the class See note 39 though litigation 39,000 recipients, even scattered are at least the resolution There E.g., identically states, situated.” fifty participating in the revenue over all sharing program. individuals Harlow, Complaint Sys. F.R.D. Amended ¶¶ Fin. American rep 31, 32, allege J.App. were (D.Md.1974). Even if backlog 800 discrimination of 500 to discrimination everyone ORS has a filed a who has resent Id.; outstanding. Motion ORS, question, Plaintiffs’ complaints common complaint Certification, J.App. members, has Class whether would be all class recipients large number practice 80. Given the in dero policy pursues a adopted complaints, pending the appellants volume substantial statutory responsibility to curb gation potentially anticipate that the class receiving reve discriminatory those conduct thousands if not several hundred includes patterns While the fact monies. nue-shared Id., J.App. simi persons. 79-82. Classes naturally grievances dif underlying individual frequently memberships been larly large members, fer, on claim of class common 1075, Wyman, 453 F.2d v. certified. Almenares allegations, would be appellants’ the basis 944, denied, Cir.1971), (2d 405 U.S. cert. 1080 process their administrative does that ORS (all 962, 815 New 30 S.Ct. L.Ed.2d 92 by v. prescribed law. Bermudez complaints as public recipients assistance bene State York 1279, F.Supp. Agriculture, 348 Department of Jacqueline, 391 F.2d fits); 555, v. & Eisen Carlisle 150, aff’d, U.S.App.D.C. (D.D.C.1972), 160 1280 158, Cir.1968) (3,750,000 potential (2d class 562 denied, 414 U.S. cert. 490 F.2d every members, every almost state (1973); 737, Ei 1104, 559 38 L.Ed.2d 94 S.Ct. Reville, country); 539 foreign v. Wolkenstein supra, F.2d at Jacqueline, 391 & sen v. Carlisle aff’d, 87, (S.D.N.Y.), 35 694 F.2d 89 Express, Georgia Highway 555; v. Johnson 1122, members); Cir.1982) (3,000 Kendler (2nd v. Cir.1969). (5th F.2d 688, Stores, Dep’t 88 F.R.D. Federated (S.D.N.Y.1981) customers). (1.9 million supra Regan, v. the Blind of and for 49. Council here, numerosity apparent Although seems 14, at 2-4. note ex- simply of class members the number from impracticabili- pected, other indicia there are denying certifica order District Court’s 50. The ty. proportionate class mem- size of each appealed action was that because tion was relatively apt small. Class claim is to ber’s prejudice. See Coun expressly without taken dispersed, geographically are members 32, Regan, supra note v. for the Blind cil of and factors perhaps locate. two difficult to These however, certification, is indis 71. Class R. impracticable for class it to make combine of action of the cause pensable to existence join individually suit as to members infra. pursue. III appellants See Part wish plaintiffs. v. Pan Am. See Harriss named whether not consider Court did District (N.D.Cal.1977); Airways, 74 F.R.D. World repre as appellants the action could maintain Co., 68 Hose & Rubber v. Electric Marshall class, my is that thesis of a sentatives expand (D.Del.1975). The will class F.R.D. the court enable be remanded case should persons presently and unknown as unnamed reason, on the I comment For that assigned do so. organizations file com- administrative initially it grounds the court when supra. Join- plaints See note in the future. Payne certify. Lab v. Travenol See declined organizations, of der course, unknown individuals Cir.1982); (5th 798, oratories, 807-808 673 F.2d inherently impracticable. See Scott is Ins., Hosp. Mut. v. Blue Cross Jenkins 76, Delaware, University 85-86 601 F.2d v. denied, 1976), (7th cert. en Cir. banc Supply (3d Cir.1979); Linen v. American Jack 50 L.Ed.2d Cir.1974). Co., (5th 498 F.2d 23(a)(2) requires question of law also Rule Rodriguez, Sys. Freight v. membership Texas Motor among 51. East of the common fact at supra at S.Ct. 431 U.S. note every question need be com such Not class. quoting (1977), Schlesin class, at 461-462 52 L.Ed.2d every however. member mon to War, Stop su ger Comm. v. Corp., Reservists Mosley 497 F.2d Motors General at pra Cir.1974); note (8th Prudent Re Fox v. Trust, (E.D.Pa.1975); 41 L.Ed.2d 69 F.R.D. sources typicality designed is to assure that single type of upon harm inflicted every- representative’s interests are aligned with one in a class composed of those who have class; those of the concord, with such filed administrative complaints with ORS. named plaintiff litigating his or her own Clearly, appellants’ claims and those of oth- interests necessarily is litigating inter- er actual filers would emanate from the ests of the class. In this respect, typicality same administrative practice, and would be is closely 23(a)(2) related to the Rule call redressable, all, if at through the same legal some question fact, common of law or technology.54 to the 23(a)(4) Rule requirement I realize normally the District representative adequately protect the inter- Court’s evaluation of typicality commands ests of absent class members. considerable deference for the substantial A plaintiffs named typical claims are degree of discretion incorporates.55 it But the class when there is a nexus where, between here, denial class certifica- injury sustained that plaintiff and the tion virtually assures eventual dismissal of injury suffered the class.52 Thus plaintiff’s claim, substantive the ambit representative’s claim typical if it stems judicial discretion is necessarily constrict- from the event, same practice or course of ed the limitations court’s power to conduct forms the basis of dismiss, the class and the court’s concomitant duty to claim and is to be litigated on the permit same litigants to rescue distressed law- legal theory.53 That, think, I rather plainly suits possible.56 whenever context, In that is the case here. allege injury the court must resort to its authority to from systemic ORS’ refusal reshape address the contours of litigation57 grievances presented administratively. If allow class treatment of meritorious claims factually correct, they share that can be mounted only on a class basis.58 E.g., Long Sapp, (5th legislation. Statsny v. Southern Bell Tel. Cir.1974). Co., supra 273; & Tel. note 628 F.2d at County Angeles, Jordan v. of Los Stastny Co., v. Southern Bell Tel. & Tel. 1318-1319; Gay 669 F.2d at v. Waiters' & 267, (4th Cir.1980); F.2d 277 Ramsay, Wells v. Dairy (9th Union, 1330, Lunchmen’s 549 F.2d 1334 Co., 436, (5th Scarlett & 506 Cir.1975); F.2d Cir.1977). 437 context, In the Title VII named Hosp., 1181, Penn v. San plaintiffs Juan 528 alleging F.2d 1189 employment an identifiable (10th Cir.1975); O.R.R., pattern, Smith practice v. policy Baltimore & or of discrimination of- 572, F.Supp. 473 (D.Md.1979). 581 demonstrably ten great See 1 assert that also it affects Newburg, supra 48, H. persons substantially note comparable number of in ways. In order to determine Rule whether attempted represent also per- to actions, criteria have been inmet such courts organizations sons and who probe have not filed must but to some extent the merits: might file complaint. an administrative procedural questions— For to answer the supra. note 29 persons, As agree to these I sufficiently homogeneous whether there is a with the required District Court that the practice permit nexus class vis-a-vis an identified present. of claims is not binding See also notes benefiting 52-53 judgments; it class supra accompanying and presented text. respect whether the issues in putative class members’ claims have suf- Rumsfeld, 796, 55. See DeGrace v. 614 F.2d commonality permit ficient their resolu- (1st Cir.1980); LaPrade, n. 862, Paton v. basis; 524 F.2d tion on an unindividualized whether (3d Cir.1975); v. representative McGowan plain- Faulkner individual claim of a Co., Paper 554, Concrete (5th sufficiently 659 F.2d tiff “typical” permit its use Cir.1981); Omiya, 1319, prototype Yamamoto v. 564 F.2d as the for resolution of the com- (9th Cir.1977). class; whether, mon given claims of the and claim, representative’s nature of the ade- supra 56. See text quate at notes representation 21-25. of class members’ claim representative’s can assured from ef- supra. 57. See note 44 requires answering forts —in effect the sub- question stantive whether ... exists there context, analogous In an courts have held requisite “pattern practice” the ly sufficient- determining that discretion whether a suit comparably affecting an identifiable brought Rights under Title VII of the Civil Act protected employees. class of proceed of 1964 will tightly as a class action is Stastny Co., supra v. Southern Bell Tel. & Tel. constrained purposes the broad remedial 53, note 628 F.2d at 274. with and those groups women, two of the the one of- struck Had the District Court — than blindness —included handicaps other defini- appellants’ class

fending clause 23(a)(4) Rule class. proposed who within the class to those and limited tion59 will parties representative that ensures ORS, evaluation complaints file interests adequately protect fairly and pro- of action could appellants’ cause cpn- class, there is some the entire lines.60 entirely different along ceeded circuits con- among the authority flict of problem addressed The other class-related similarity of interests degree cerning District Court is whether by the repre- class between injuries needed representa- adequately as class can serve members. and class sentatives of the court’s general thrust tives. representative allow the courts appel- Some ruling was adverse certification attack an “across-the-board”61 launch of interests unity lants lack sufficient employee complaining observed, applied recently allow an Supreme Court has As the represent victim other alleging racial discrimination are often ... discrimination “suits persons denied em employees involving as well very class- ized class suits their nature Phillips Falcon, grounds. v. Joint ployment wrongs.” on racial Tel. v. wide General Co. 1014, (5th 2370, Comm., 2364, Legislative 637 F.2d 72 L.Ed.2d 102 S.Ct. denied, Cir.1981), setting, class-ac- In this cert. Long Sapp, (1982); may v. inquiry inextrica- well be intertwined 72 L.Ed.2d tion bly 42; inquiry Dickerson v. supra nonexis- F.2d at on existence or note with the granted. Corp., claim for which relief can be Steel tence of a United States employee Similarly, (E.D.Pa.1977). See Part III infra. case, is, promoted class who sort of to utilize but Better it or transferred has been who liberally employer’s injury when suit-dismissals certification as a result of asserts discriminatory practices may represent claim of a meritorious chance the loss those determi- the soundness of the employees forever. Should those bene have been denied who Servs., status be later drawn on class-action nation Postal v. United States fits. Chisholm Co., supra question, Cir.1981); Stastny v. N.D. (4th see Huff Cass into v. suggests Co., Rule itself supra 485 F.2d at note note Tel. Tel. Bell & Southern handling problem. ready Rule means for at 278-279. When 628 F.2d charges “may 23(c)(1) provides the determination employment prac the defendant’s conditional, may be altered or amended they apply racially discriminatory as tices are Should, decision on the merits.” before the then, employees, has been held entitled black he to represent possi- out that a class certification it turn employees aggrieved those all improvident, bly court wise some though members practices some class even may the class structure and conform reexamine engaged work as his. in the same have not been acceptable limits. it to supra Highway Express, Georgia Johnson County 1124; Jordan note accompanying text. 59. See note 39 1322; Angeles, supra F.2d at Los Corp., 522 F.2d Rich v. Martin-Marietta assumes, course, appellants are 60. This permitted Cir.1975). (10th Courts 340 representatives, adequate about a matter class represent discharged employees themselves to be discussed. employees on discrimi in assaults and current natory employment practices. approach per- 61. The across-the-board v. Liber Wetzel presenting particularized 239, (3d Cir.), plaintiff Co., claim mit a ty a 247 508 F.2d Mut. Ins. discrimination, rep- 2415, injury, 1011, denied, such as racial 44 95 S.Ct. 421 U.S. cert. persons aggriev- composed of all (1975); resent a class Mut. v. Blue Cross 679 Jenkins L.Ed.2d discriminatory practices 169; 50, Ins., supra the defendant’s Hosp. ed 538 F.2d at note may 796, any plaintiff thus City Albuquerque, of adequately represent The named kind. 690 F.2d Anderson v. although all of Cir.1982). class been (10th woman has A black 799 not suffer from the identical represent its members do and females males black allowed discrimination; factual variations form of suit. race discrimination in a mixed sex and normally 825, types Co., will Pillsbury of discrimination or modes F.2d 830- 554 Donaldson v. 856, preclude denied, Cir.), action treatment. (8th not class 98 434 cert. 831 Vuyanich (1977); v. technique 54 L.Ed.2d has been used most common- S.Ct. Republic This Bank, (N.D. Court, Supreme F.R.D. ly Nat’l The in Title VII actions. Note, Falcon, 1979). generally Discrimination note has Tex. General Tel. Co. v. Rules of Civil the Federal recently application Actions Under to class-action Class endorsed its of Rule continuing The Transformation litigation Procedure: 23(b)(2), need but has stressed Note, (1979); 157-60, Yale L.J. 868 commonality. 102 S.Ct. 457 U.S. at Scope Representation in Title VII Proper has been It 72 L.Ed.2d at 750-752. discriminatory practices, while others sub- rily refused transfer represent could scribe to a more restrictive “same-im- others denied transfer.64 This court yet has pact”62 doctrine, and in given cases the to choose between these doctrines, two but outcome could be vastly affected. To illus- a selection seemingly would make no differ- trate, an upon across-the-board a challenge ence in present case.65 At the very named plaintiff who suffered from only one least, then, a remand is necessary to enable form of employment discrimination, such as a sound determination as to appel- whether denial promotion, could represent a class lants share the injuries same with members comprising all employees hurt by any of the of the class. employer’s discriminatory practices.63 The same-impact approach, however, limits the Ill persons class to who have injuries sustained identical to those I of the turn now to representa- appellants’ class relief, claim for tive; for example, plaintiff viewing discriminato- it on a class wholly basis. Invoking Actions: A Comment East Texas Motor board doctrine would enable who Freight Sys., Rodriguez, Inc. v. complaints 13 Harv.C.R.-C. represent persons filed pro- all L.L.Rev. 122(a), tected under 1242(a) 31 U.S.C. § (1976), similarly who filed. While each such same-impact rule, 62. Under the require courts appellant presents particularized claim of in- plaintiff the named and class members to suffer jury, representatives as class proceeding under injury. example, identical For several theory they represent would be entitled to courts have held that a named who subjected all who have been discriminatory challenges the discriminatory defendant’s pro revenue-sharing activities of recipients, and practices may motion represent a class who on that account have filed administrative contesting hiring practices defendant’s complaints ORS, regardless with specific of the . See (U.S.) Inc., Abron v. Black & Decker forms of respectively discrimination com- (4th Cir.1981); F.2d Hill v. Western plained of. Co., (4th Elec. Cir.), F.2d cert. same-impact doctrine, Resort to however, denied, 444 U.S. 100 S.Ct. 62 L.Ed.2d yields a similar result here. claim (1979); Arlington Co., Reed v. Hotel represent protected all members of several (8th Cir.), denied, F.2d cert. groups organizational and their counterparts (1973); 38 L.Ed.2d 103 v. Chavez who have complaints filed discrimination Tempe High Dist., Union School 565 F.2d gist ORS. The objection of the District Court’s (9th Cir.1977); 1094 n. Brown, v. Green to representative class so formulated was that no named (E.D.Va.1978). See also Walker injuries shares identical v. Corp., World Tire (8th 563 F.2d 918 Cir. women, handicapped or with the who are not 1977); Tuft Douglas Corp., v. McDonnell supra. conclusion, blind. See note 32 This I (8th 1978). Similarly, Cir. one circuit submit, appears unsupportable. to be in- has refused to an allow individual who had plainly represented terests of women voluntarily employment prior terminated her one, more, if organizational appel- charged acts represent of discrimination to example, Operation Push, For organi- lants. an employees class of affected those acts. Memphis, Tennessee, zation consists more Gray, Hernandez (10th 530 F.2d 858 Cir. 3,500 city, than Complaint residents of that Amended 1976). Another circuit has ruled a black J.App. and it is ¶ inconceiva- adequate woman was not representative ble that not one these members is female. black men and women in a sex race dis Additionally, assumption District Court’s injured crimination suit because she was not appellant represents that no the interests of the the same fashion Payne black men. handicapped similarly seems vulnerable. I Laboratories, supra Travenol readily acknowledge appellants’ amended at 811. complaint one, did not assert save Blind, represented Council of and for the supra. See note 61 handicapped; recognize, too, interests of the I persons that Council’s constituents are handi- supra. See note 62 by capped imagine, blindness. It is difficult to however, that memberships the combined of Appellants charge injured by that ORS them organizational seven do in- process failure to griev- their administrative persons by some handicapped clude infirmities Appellants allege they ances. that followed the Appellants’ other than moving pa- blindness. filing requirements imposed by pers the Act Court, in precise the District while not as that ORS nonetheless refused they might been, to act on their as not so were deficient complaints. Application of permit the across-the- as a to confident conclusion that

1548 124, has con- through Section Act,66 they Congress, Procedure the Administrative liti- to opportunity citizens upon ferred to examine Court the District urged of discrimination individual incidents gate ad- of on treatment record evaluate ORS’ communities, but recipient in encountered of discrimination complaints ministrative fulfilling its own is not that contend the Revenue aegis of under the presented ORS, they the Act. under responsibilities is that premise Their legal Act. investigate com- claim, refuses generally ORS’ typifying assertedly stagnation few such findings after make plaints, final amounts to in that area performance conducts, or to secure as it investigations a for which agency unlawful action impose sanctions agreements compliance only adequate injunction is the corrective noncompli- findings of following the few not seek situation- do remedy. Appellants urge emerged.67 Appellants ance that have by Section type offered of the specific relief instances of numerous aggregation that Act; the courts do not ask they 124 of the process- in delay and inordinate of inaction noncompliance question resolve of break- systemic complaints reflects ing Rather, com- they locality. any particular 124 by Section remediation beyond down flow ORS, administering the in plain suits. nationwide, has revenue-sharing dollars that, despite flagrant It cannot doubted huge sums dispense chosen may 124, appellants imple- enactment of Section statutory procedures violation if relief injunctive to the APA resort commands nondiscrimination menting the terms.68 under its qualify able to they are fully recognize of the Act. any. Agency statute, action I nor am aware handicapped would and the women interests of contrary presumptively absent is reviewable protected. adequately not be Dunlop appearing, plainly congressional intent (codified 324, as 237 60 Stat. 66. Ch. 567, 20, Bachowski, supra 421 U.S. at note v. U.S.C.) 5of in scattered sections amended City (1975); 1857, 386 L.Ed.2d at at 44 95 S.Ct. acronym]. by its familiar cited [hereinafter 164, 162, States, Chicago 396 U.S. v. United jurisdiction, but no The APA confers 340, (1969); 309, 311, 343 24 L.Ed.2d 90 S.Ct. action; power review cause of 20, Gardner, supra note v. Abbott Laboratories upon 28 1331 rests APA under the 1511, 140, at L.Ed.2d at 18 at S.Ct. U.S. 87 387 686-687, Sanders, 1981). U.S. (Supp. 99, v. V Califano convincing only upon a clear and 192, 980, 984, 105, 51 L.Ed.2d 97 S.Ct. may legislative purpose courts re- showing of APA, juris 1331, provides (1977) (§ Weinberger judicial v. review. access to strict Lewis, diction); Megapulse, U.S. v. Inc. 767, Salfi, 39, at 95 S.Ct. at note 30, 959, 397, n. 30 App.D.C. 404 n. 2465, 45 L.Ed.2d at Corp. (1982); v. Hudson & Elec. Gas Central 549, (2d Cir.1978). Appel EPA, frustrate 124 did not of § 587 F.2d enactment respects cardinal approach this consideration. It “a doctrines. is lants’ established these repeals statutory principle construction history in sus- recalcitrance 67. ORS has favored,” v. by implication are not Radzanower recipients terminating pending en- funds 148, 154, Co., 96 S.Ct. 426 U.S. Ross & Touche 1989, 1993, When, 1976, gaged prohibited conduct. accord, 540, (1976); 48 L.Ed.2d amended, nine members Act was the 1972 Corp., 456 U.S. v. Chemical Constr. Kremer Finance noted Committee House 262, 1890, 468, 1883, 461, 72 L.Ed.2d 102 S.Ct. Act, Secretary passage [s]ince (1982); Continental States v. United United revenues, suspended for a has never shared 1319, 168, 164, Corp., S.Ct. 425 U.S. Tuna Secre- rights when the violation. Even civil rather, (1976); 47 L.Ed.2d tary in Chi- a violation evidence such had be read possible, statutes should “whenever suspend until cago still refused to funds he consistently.” Constr. v. Chemical Kremer so federal court. to do ordered at Corp., supra, 102 S.Ct. 456 U.S. (addi- Report, supra at 98 n. 3 House accord, 271; States United 72 L.Ed.2d Representative Drinan oth- tional views Co., 308 U.S. Borden vividly ers). reflect 1976 amendments (1939); Associated 84 L.Ed. inaction, legislative but effort correct Morton, U.S.App.D.C. Coop. Elec. ignored restated will of allegedly has ORS Congress (1974), n. 12 n. blithely did before. as it as denied, cert. however, are, “two There L.Ed.2d if is review thereunder 68. The APA unavailable implication repeals categories of well-settled precluded 10§ statute. APA another provisions acts amended, in the two —(1) (introductory clause), where 5 U.S.C. conflict, (2) the later if ... 701(a) point (1976). parties such irreconcilable to no §

1549 allege facts tending to show essary for citizens to sue separately for only injunction an directing to every locality spending such monies in a adhere to requirements statutory can cur- manner, discriminatory litigate to inde- tail widespread injuries upon visited class pendently every instance of discrimination members.69 Accepting present pur- in the many thousands of jurisdictions par- poses, must, we as these allegations as ticipating in revenue sharing. Under true,70 the critical inquiry whether, as ruling, court’s the most in such APA, demanded there has been “fi- an action hope can to achieve is suspension nal agency action for which there is no or cutoff of funds to involved; the locality other adequate remedy in any court.”71 ORS’ role and accountability would be lim- All parties agree, do, as I that ORS’ failure ited to defendant, nominal present process and resolve administrative com- solely to enable the court to frame an effec- plaints in timely fashion constitutes final suspension tive or cutoff order.73 I respect- agency action within the meaning of that fully disagree court’s outcome. requirement.72 matter in dispute Congress has established two approaches is whether there is any other judicial reme- to the problem of discriminatory expendi- dy adequate for redress of the derelictions tures of revenue-sharing funds recipient charged to ORS. localities. First foremost, Congress or- The court now answers question dained scrutiny administrative in the man- the affirmative, and limits approval its ner delineated step-by-step in the Act —a individual discrimination suits under process Sec- calculated to uncover latent epi- If, tion then, 124. alleged ORS’ delinquen- sodes discrimination, and thereby to en- cies are ever to overcome, be and discrimi- able enforcement of the nondiscrimination natory uses of revenue-sharing funds are mandate through suspension or cutoff of ever to eradicated, it would become nec- funding.74 It process is this subject act covers the whole any the earlier appropriate one legal action, including form of clearly and is substitute, intended as the prohibitory ... suits mandatory for a injunction. [b]ut, case, in either legisla- the intention of the ” repeal ture to must clear and manifest Cty., 25, 70. 2, .... Miree v. DeKalb 433 U.S. 27 n. Co., Radzanower v. supra, Touche Ross 2490, & 2, 557, 426 97 S.Ct. 2492 n. 53 L.Ed.2d 561 n. 154, 1993, U.S. at 547, 96 S.Ct. at 48 (1977); Beto, L.Ed.2d at 2 319, 322, Cruz v. 405 U.S. 92 quoting City Bank, Posadas v. National 1079, 1082, 263, 296 S.Ct. (1972); 31 L.Ed.2d 268 497, 503, 349, U.S. 352, 56 351, S.Ct. Ass’n, L.Ed. 167, Gardner v. Toilet Goods 387 U.S. (1936). Accord, 172, Kremer v. 1526, 1529, Chemical 704, 87 S.Ct. 18 L.Ed.2d Corp., supra, 468, Constr. 456 U.S. at (1967); Equip. Walker Process v. Food Mach. 1890, 76 L.Ed.2d at 276. Corp., 347, & Chem. 86 S.Ct. suggests, No discern, one nor do I con- (1965); 15 L.Ed.2d Clark v. Ue gressional purpose displace beyond the APA A.G., Finanz-Korporation, bersee the narrow reach contrary, §of On the (1947). L.Ed. injunctive an against ORS, APA-based action premised upon agency’s perform 10(c), failure § APA 5 U.S.C. § 704 statutory duties, was an 10(b), available form of also APA § U.S.C. § prior relief to the advent of § 124. See note 20 supra. Congress, “[Wjhen amending pre Revenue administrative inaction has Sharing Act cisely incorporation impact evinced rights same on the of the desire, curtail, parties § 124 the relief, not to as but rather denial of cannot augment rights already preclude judicial enjoyed by casting citizens. review its decision Compare Natural Resources Defense Council the form of inaction rather than form Train, U.SApp.D.C. 312, denying of an order 322 & n. relief.” Environmental De F.2d Hardin, 702 & n. (authority fense Fund U.S.App.D.C. re- 397, 428 view administrative 1093, 1099 (1970); under exists both see authorities APA § cited id. n. 29. Federal Water Pollu- Act). tion Control Maj.Op. 73. See n. 68. But see note 20 69.Unlike judicial the APA does limit supra. suspension relief to funding. termination of 10(b), amended, APA § accompanying See notes 6-11 (1976), expressly empowers courts entertain text. 1550 directly lawsuit full-fledged hand, is a other injunction. Secon- by to animate

endeavor ORS locality, the accused against en- for provided citizen darily, Congress on seeking a ban nominally, only present in individual that mandate of forcement or -cut- fund-suspension or 124 discrimination under Section suits situations off.78 whether The issue is against localities.75 sub- remedy adequate is

the Section 124 demon- themselves These differences injunction sought-after for the stitute relief afford 124 cannot strate Section of test ORS, time-honored and the obtainable to equivalent substantially in equivalence is substantial adequacy per- to ordering ORS injunction through an In efficiency.76 and practicality of terms upon imposed Congress has form the duties does 124 action view, the Section my envisioned 124 action In the Section it. that standard. meet the carry must majority, the the discrimi- ongoing proving proof burden of of objectives place, In the first to the contrast locality, in in the nation Appel- radically. diverge remedies two com- burden on administrative lighter much compel to is an effort injunction bid lants’ that discrimina- merely to show plainants con- itself, compliably Moreover, not.79 than likely tion is more directives, investigate adminis- to gressional 124 in that Section role restricted ex- ORS’ either and eliminate complaints trative completely continuously and it termi- suit80 leaves or suspend isting discrimination Act, requirements ignore free to to honor begins funding. Once ORS nate very course perpetuate to and appel- thus responsibilities, neither statutory its attempt would suit injunction would conduct complaining citizens nor other lants explic- ORS, Congress which Thus to alter. complaints than submit to do more need dis- problems tackle itly instructed investi- trigger sufficiently informational judi- from crimination, wholly is insulated action, 124 Section gations.77 circum equity the same afford under accompanying 7, supra and See notes 18 Clark, supra, Gormley 134 U.S. at v. stances.” text. Accord, 557, 33 at L.Ed. S.Ct. 10 (1976), 10(c), Pet.) 5 U.S.C. (3 Under 704 APA Gundy, Boyce’s v. 28 Ex’rs. adequacy recognized, enough as heretofore we (1830) (“it is not 657 L.Ed. 7 remedy judicial is be deter an alternative law; plain remedy must be it is that there long which courts mined manner words, practical or, as adequate, in other and making meas have been such accustomed justice and its ends of to the and efficient Lewis, supra Megapulse, Inc. v. urements. remedy equi prompt as the administration U.S.App.D.C. at 408 n. note Stanley v. ty”); Co. Chesa Coal Land Harris & “nothing (court more reads F.2d at 970 n. (6th Ry., Cir. peake F.2d & O. portion than an of section 704 into the relevant remedy legal 1946) (“[t]he must incorporation general ade rule adequate adequate, speedy as plain, but and keyed legal to the quacy claims is of alternative justice that which as ends of meet restraining power equitable in- of all claims for consideration competent equity is relief’). Motors junctive also General Power & grant”); v. Iowa Union 499 Local (D.Del. F.Supp. Corp. Volpe, v. 1964) (S.D.Iowa Co., Light crystalized 1970). applicable standard has remedy remedy (“[a]n adequate is a at law assessing capabilities of in countless cases legal practical complete plain and which remedies, inadequacy histori which justice the ends of and efficient prompt prerequisite cally the essential has been remedy equity as a administration remedy at equitable relief. Mere existence injunction”). equi to warrant denial law has not sufficed Clark, intervention, Gormley table accompanying supra text. notes 6-8 77. See 554, 557, L.Ed. (1890); Inst. v. Board see Co. Investment accompanying supra and 18-19 78. See notes U.S.App.D.C. Sys., 179 of Fed. Reserve Gov. text. (1977); FTC, Corp. General Fin. accompanying supra text. notes 7-9 79. See rather, Supreme (7th Cir.1983); as the Court respect declared, remedy, legal has “the both accompanying text. it, obtaining 80. See note mode of to the final and the relief supra. remedy But see as efficient as [must be] review; indeed, cial it may eyes close its remain unabated. And ORS’ adamant re- discrimination, allegations of dispense and fusal to discharge its statutory duties will vast sums of shared revenues to the very only not deprive affected citizens of the entities about which complain.81 citizens agency’s investigative resources, but also of Not only is 124 litigation Section less the wholesome influence of an aggressive efficient from the viewpoint citizens’ but administrative policy enforcement on com- impractical as well. Lawsuits expen- are pliance across the country.82 I believe Sec- sive, time-consuming and burdensome. Re- tion 124 not does promise not a legally alistically, the number of Section 124 ac- adequate remedy, but is tantamount to lit- tions that citizens and their organizations tle or no solution at all.83 can be expected to bring and maintain is My colleagues in the majority suggest grossly disproportionate to the problem as that the broad-based mandatory order appellants pose it. With an aggregate citi- sought by appellants compel zens effort under the Dis- Section 124 hardly more pathetic, than trict blight supervise Court performance ORS’ discriminatory expenditures of revenue-sharing funds will under Section 122 in every instance of the Continuing irreparable injury long likely has been to take enforcement action. Id. at 41. demonstrating inadequacy a basis for report of anoth testimony The cites that an effective remedy. See, e.g., Baune, er Lewis v. S.S. 534 program requires target- enforcement a mix of (5th Cir.1976); Wright 1124 11 C. & investigations compliance ed investiga- and Miller, A. Federal Practice § 2944 at 399-401 tions. Id. at 19. (1973). Indeed, to warrant the intervention of energetic agency If program a varied and is equity, complainant point must to some act necessary compliance by to ensure revenue- produce done or threatened that will such an sharing recipients, objective hardly can injury. See United States v. American Friends organizations trying achieved citizens and Comm., 7, 11, 13, 15, Serv. 419 U.S. 95 S.Ct. 42 represent disadvantaged countless minorities (1974); Sampson Murray, L.Ed.2d 13 415 slow, costly and women in lawsuits scattered 61, 88, 937, 952, 94 S.Ct. 39 L.Ed.2d locality-by-locality country. about the More- (1974); Westover, Beacon Theaters v. over, appellants seeking are not that sort of 500, 506-507, 948, 954, U.S. 988, 79 S.Ct. 3 L.Ed.2d relief, situation-specific align- but instead an (1959). Ofttimes, concepts of ir performance ment of ORS’ nationwide of statu- reparable injury inadequate remedy tory pro- demands. The APA’s mission is to indistinguishable. Clothing Bannercraft Co. v. judicial remedy vide a quate, when none other is ade- Renegotiation Bd., U.S.App.D.C. Sharing supplies and the Revenue Act (1972), n. 466 F.2d 356 n. 9 rev’d on effectively no mechanism which ORS can be grounds, other 415 U.S. systemic barred from a course of consistent (1974) (acknowledging frequent L.Ed.2d 123 in statutory refusal to honor commands. The terchangeability noting irrepara but that “the today liberty, court’s decision leaves ORS at as injury ble quality rubric is intended to describe the practical matter, flagrantly to violate the Act severity necessary or of the harm ignore mandatory statutory duties with trigger equitable intervention,” while, “[i]n impunity. intolerable, I find this result contrast, inadequate remedy test looks to Congress. inconsistent with the will of possibility relief, of alternative modes of injury”). however serious the initial 83.While, view, my citizens can exact ORS’ compliance statutory requirements sep 82. This conclusion is reinforced a recent suits, supra, arate report § 124 see Comptroller note 20 poten- of the General on the expose cy, it, course would in additional form of or the lack of 124 on realization of adequacy. legal require goals “Where remedies mul nondiscrimination of the Revenue tiple involving against Sharing Office, suits Accounting identical issues Act. General The defendant, equity practice same federal Revenue Act’s has 1976 Amendments: Lit- recognized inadequacy legal remedy Improving tle Effect on Administration and En- provided forcement has a forum.” Bamf Nondiscrimination Garrett v. Provisions (Dec. 10, ord, 1980). (3d Cir.1976). report impor- 538 F.2d See Mat stresses the “tying 521, 529-530, rights compliance Rodgers, regula- tance of civil thews v. 284 U.S. 217, 221, program 447, 454 affecting juris- (1930); tions to a S.Ct. 39 thousand 76 L.Ed. Hale v. dictions,” Allinson, 56, 78, 244, 252, and notes “the cumulative effect of 188 U.S. S.Ct. multiple agency (1903); enforcement L.Ed. efforts.” Id. at New York Stock Exch. study Bloom, powerful 40—41. The negative U.S.App.D.C. also observes the compliance strategies (1977), denied, effect on in re- cert. cipient perception localities of a that ORS was L.Ed.2d 538 basis, a case-by-case aon improvisation discrimination an administrative

filing of pervasive untouched leaving prop- process “more this role is and that complaint obey or failure refusal repeated subcom- Congressional aby erly conducted I think individual function.”84 commands. oversight congressional of its part mittee recipient either beside actions event but disagree, I Section us is confronting both, afford ORS, cannot question point. localities remedy, I particular predicament. adequacy of relief from adequate remedy an alternative injunctive to appellants’ the extent allow would therefore Moreover, utilized. appropriately may qualifies it if proceed toORS suit ask- for the simply is injunctive relief action. a class tem- is a factor traditionally feasibility ing; however, us, does before record indi- decrees, experience judicial pering possibility full evaluation permit scope of radical relief no need cates for unable, for I am certification. class-status Heretofore, litigation. of class consequence appellants discern whether to example, have en- funds of federal recipients when class a viable represent adequately could discrimination, federal unlawful gaged in may be properly to relief respect with by re- unhesitantly responded courts have the six whether I can tell sought. Nor those dispensing agencies federal quiring grievance-han- administrative instances compliance police affirmatively to funds com- amended appellants’ alleged in dling edicts.85 nondiscrimination statutory type representative plaint directing injunction judgment, my In legitimately class that the of claims breadth statutory functions perform ORS to Accordingly, I against ORS. assert could wholesale remedy adequate for only case, a reminder would remand at ORS’ appellants lay statutory violations claims rule established well “the doorstep. to those of not be identical all the class need the District to enable plaintiffs,”87 IV things, determine, among other to Court Act the Revenue impact of and the claim individual’s “the whether it, dol- billions of Through is nationwide. questions ... share common claims class many thou- to annually channeled lars are the individual’s or fact and law [whether] enti- governmental of state and sands class claims.”88 typical of the will be claim has little assur- been Thus far there ties. allow court to also instruct I would calling upon ORS entities those ance that question proceed to on discovery actu- monies these federal sums of large for inaction, for alleged scope of ORS’ require- the nondiscrimination ally observe whether it be ascertained could thereafter Sharing Act. Vindi- ment of Revenue serve 124 relief is left to citizen Section now mandate cation private dis- tax-exempt schools for state status Maj.Op. 1533. 84. See at deny tax-exempt racially, criminating the schools to contributions status Richardson, F.Supp. v. 85. Adams See determination affirmative of an absence aff’d, U.S.App.D.C. (D.D.C.1972), require- compliance with nondiscrimination 1976) (agency (en 267, 480 F.2d 1159 banc attained). has been ments statutory responsibility discharge its ordered discriminating dis- school off funds cut supra. note See 86. Connally, nationwide); v. Green tricts (D.D.C.1971), Coit F.Supp. sub nom. aff’d Stores, Safeway Taylor v. Green, 30 L.Ed.2d v. U.S. Accord, Cir.1975). v. (10th Donaldson sup- 8n. (1971) (agency ordered terminate 830- Co., supra at Pillsbury note practicing ra- private port schools of a state’s accompanying supra and note also discrimination; from renew- barred cial text. monetary ing assistance until further compliance with nondis- full assured schools Falcon, supra note Kennedy, v. standards); Tel Co. General Green crimination 72 L.Ed.2d at (D.D.C.1970) (agency ordered supra. applications See also pending disapprove and future adequately. I ruling And would defer a propriety of dismissal of this litigation

until it can be on a fully made informed

basis.

UNITED STATES of America

Igor SANDOVAL, Appellant. Antonio

No. 82-2155.

United States Court of Appeals,

District of Columbia Circuit.

Argued March

Decided June (student

Richard W. Goldberg counsel), with whom H. Steven Goldblatt (appointed court) Dash, and Samuel George- town University Center, Law Washington, D.C., brief, were on the appellant. Bebie, Wendy Asst. Atty., U.S. Wash- D.C., ington, Harris, with whom Stanley S. Atty., Farrell, U.S. and Michael W. John F. Fisher, Shmanda, and Theodore A. Asst. D.C., Attys., Washington, were on the brief, for appellee. MIKYA,

Before WRIGHT and Circuit Judges, SWYGERT,* Senior Circuit Judge.

Opinion for the court filed Senior Cir- cuit Judgb SWYGERT.

SWYGERT, Judge: Circuit Senior Defendant-appellant Igor Antonio Sando- val was by jury distributing convicted cocaine in 841(a) violation of 21 U.S.C. § three-year and received a sentence with a two-year special parole term. On appeal issue is whether the trial court correctly admitted into evidence a * Circuit, sitting by designation Of the pursuant 291(a) Seventh (Supp. 1981). V notes 75. The dissent process and administrative “failure resolve Delaware Blind of for the of and 76. Council timely final is complaints fashion” the in a 76-0467, op. Miller, slip Valley, No. Inc. v. complain. appellants agency of which action 1981) (citing No. H.Rep. (D.D.C. 4 Feb. added). (emphasis The dissent Dissent at 1549 (1976); S. I), Cong., (Part 2d Sess. 94th grievance is properly the “when also notes that 26-27, Cong., Sess. 2d 94th No. Rep. 90-day simply dead- not met the ORS has that Cong. reprinted in 1976 U.S.Code Ad.News & line, action party’s is a § sole recourse the 5176-77). nominally, for recipient, ORS the activity.” discriminatory Id. at relief from is autho- district the court section 124 77. Under added). (emphasis is because This 1540 n. 20 order, restraining temporary “any to issue rized might able “Congress realized injunction, or other permanent preliminary or timetable,” it chose to this adhere suspension, order, including termination or right an give complainant to initiate ” U.S.C. repayment funds .... for when time action section 124 under added). par- Both 1244(b) (1976) (emphasis agency expired. Id. at n. 20. has action power to order agree includes that this ties really disagreement Therefore, is the dissent’s discrimi- governments to discontinue allegedly Congress Congress. foresaw Appel- federally activities. funded nation complain illegal activity of which 9-14; Appellees’ En En Banc Brief lants’ agency remedy adopted and it a Brief at Banc adequate. question We it considered judgment congressional defer to the 1244(d) (1976). remedy adequate, is dissent section 124 remedy provided by Congress provides district courts shall “[t]he adequate to redress the original jurisdiction discrimination al- have action in legedly encountered by appellants. compel nature of mandamus to an offi- cer or employee of the United States argues Amicus curiae79 that we should perform duty thereof to owed to remand this allow appellants case to to en the plaintiff.”83 This relief is available if gage discovery concerning the practices (1) relief; right has clear of the ORS so that the court will inbe act; duty defendant clear has position better adequacy determine the

Notes

notes the class. superfluous. compassing is future members Voss, supra, at 582-583. 73 F.R.D. v. Curtis 39. The class by appellants would envisioned Thus, without be as well off persons protected “who encompass not may class definition file” in their the words “or complaints with ORS have filed” discrimination through that they to become as endeavored “may persons protected who later but also accepted, Curtis as it seems And addition. supra. is formulation 29 This file.” See note holds, not affect- of a is existence class that the contemplates it extent that overbroad to the changing its member- character of ed ship. yet to file and who have inclusion of those merely may 1, Johnson, (E.D. 3-4 85 F.R.D. v. Glover unspecified point do so at some McDonald, supra, 369 1977); v. Wallace Mich. 67, Diaz, Mathews v. 426 U.S. future. See F.Supp. 188; Lynch, F.Supp. v. Baird at 478, 3, 48 L.Ed.2d 1887 n. 71 n. 96 S.Ct. (W.D.Wis.1974). Salfi, Weinberger (1976); U.S. v. 485 n. 3 appellants’ imparted to The overbreadth 2457, 2466, 749, 763-764, L.Ed.2d 95 S.Ct. specification of fu- class-designation their Voss, (1975); F.R.D. Curtis v. 537-538 ef- class-action to their not fatal ture filers is may (N.D.Ill.1976). Nonfilers 582-583 description appellants’ of the This fort. flaw unidentifiable, infra at note see text well be by judicial readily redefinition curable is class lay they claim to event cannot and in yet to who have eliminate those the class to of complain procedural the Act confers entitlements and ac- note 44 infra See Diaz, to ORS. supra, solely upon v. See Mathews filers. companying text. at 1887 n. 71 n. 426 U.S. at Voss, 3; supra, 73 Curtis v. L.Ed.2d at n. Kennedy, Prac- Federal Moore & J. See 3B J. at 582-583. F.R.D. 1982); (2d tice, ed. at 23-114 23-119 23.04 ¶ Indeed, attempted designation of future filers Practice, Miller, Wright A. Federal & 7 C. entirely present is unneces- as members class 583-584 said, sary. well As it has been [m]any classes whose actions involve class Sys. 41. Freight v. Rodri Motor East Texas membership predictably over the fluctuates 1891, 1896, 395, 403, quez, S.Ct. litigation. fact that class of the course Schlesinger (1977); 461-462 L.Ed.2d fluid, membership changing as the case Comm, War, Stop Reservists suitability negate progresses,' does not 2925, 2930, 41 L.Ed.2d Mc action device. Wallace the class Dep’t Soc’y of White (1974); v. Fire Vulcan 716 Plains, Donald, (E.D.N.Y.1973). F.Supp. (S.D.N.Y.1979); 82 F.R.D. definition What is is that class critical Co., Ins. Life v. Occidental precise Consor sufficiently the court to enable case, (N.D.Tex.1979). the instant In par any given whether a determine at time processing of fil- right is to administrative qualifies member. a class ticular individual precise boundaries sufficiently practicable, (2) questions there are of law or positive make identification of its member- class, fact (3) common to the the claims or ship any given moment administratively representative defenses of the parties are would, view, feasible.42 This in my easily typical of the claims or defenses of the satisfy class,43 the initial existing call for an class, (4) the representative parties will and no more than judicial a minor bit of fairly adequately protect the interests surgery remains, is needed.44 There Early class.”45 on in the District course, the question whether the several Court, appellants moved for class certifica- prerequisites litigation class-action are or tion,46 but appellees opposed the motion on possibly can be met. grounds appellants’ purported class did Federal 23(a) permits satisfy Civil Rule the numerosity, class cer- commonality tification if “only the class is typicality requirements.47 court, so numer- in de-

Case Details

Case Name: Council of and for the Blind of Delaware County Valley, Inc. v. Donald T. Regan, Secretary of the Treasury

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 10, 1983

Citation: 709 F.2d 1521

Docket Number: 81-1389

Court Abbreviation: D.C. Cir.