Kеnneth ADAMS, et al., Appellants, v. Terrel H. BELL, Individually, and as Secretary of the Department of Education, et al.
No. 81-1715.
United States Court of Appeals, District of Columbia Circuit.
Decided 10 June 1983.
Argued 8 Jan. 1982. Argued En Banc 2 Feb. 1983.
711 F.2d 161
Michael Jay Singer, Dept. of Justice, with whom Stanley S. Harris, U.S. Atty., and William Kanter, Dept. of Justice, Washington, D.C., were on brief, for appellees.
Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG and SCALIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Dissenting Opinion filed by WRIGHT, Circuit Judge, in which ROBINSON, Chief Judge, WALD and MIKVA, Circuit Judges join as to Parts I, II, III, and V.
WILKEY, Circuit Judge:
Since 1973 the United States District Court of the District of Columbia, in the course of adjudicating the suit Adams v. Richardson,1 has taken an active role in delineating the Department of Education‘s
I. BACKGROUND
Title VI of the Civil Rights Act4 prohibits discrimination by programs receiving federal financial assistance.5 Title VI directs the federal agencies which grant funds to issue rules to achieve nondiscrimination by recipients and authorizes the federal agencies to terminate grants to recipients which are found after hearing to have failed to comply with these rules.6 Plaintiffs brought suit in 1970 to compel the Department of Education (then Department of Health, Education and Welfare) to comply with its obligations under Title VI.7 In 1973 U.S. District Judge Pratt issued a comprehensive order which required the Department of HEW to commence enforcement proceedings against delinquent southern states within 120 days.8 On appeal, this court modified the order to require the states, in the area of higher education, first to submit plans based on Department of HEW guidelines, with enforcement actions to follow against those states which failed to file or to implement acceptable plans.9
The 1973 decree, as modified by this court, provided the basis for continuing litigation before Judge Pratt. In 1977 the district court ordered the Department to revoke its previous acceptance of some desegregation plans, including that submitted by North Carolina in 1974.10 The court found that the plans failed to meet the requirements set down by the Department and made inadequate progress towards desegregation of higher education.11 The Department was ordered to promulgate final criteria specifying the ingredients of an “acceptable higher education desegregation plan” and to require the states to submit revised plans which the Department would accept or reject.12
In March 1979, after North Carolina‘s revised plans had been rejected by the Department, the Department initiated enforcement proceedings against the State of North Carolina. In response, North Carolina filed suit against the Department in the U.S. District Court for the Eastern District of North Carolina to enjoin the Department from conducting the administrative hearing and from deferring payment of grants if the hearings were permitted to proceed.13 North Carolina contended that the enforcement proceeding was unauthorized by Title VI and violated various norms of constitutional and administrative law.14
An administrative law judge in the Department of Education then began to hear the Department‘s evidence on the desegregation of the North Carolina system. At the same time, North Carolina and the Department carried on informal negotiations. Shortly after the Department had completed the presentation of its case in chief, these negotiations culminated in a settlement agreement which was embodied in a consent judgment issued in the North Carolina federal court.18 That court concluded that implementation of the terms of the settlement would bring the North Carolina higher education system into compliance with Title VI.19 The consent decree was the final judgment in North Carolina‘s suit against the Department, and its provisions terminated the administrative proceeding against North Carolina.20
Although appellants were limited intervenors in the administrative proceeding,21 they did not seek at any time to intervene in the suit before the North Carolina federal court and therefore had no standing to appeal the consent judgment.22 Instead, appellants sought to prevent entry of the decree by requesting that the District of Columbia federal court, before which they were plaintiffs, enjoin the Department of Education from acceding to the proposed settlement.23 U.S. District Judge Pratt ruled, however, that supervision of this Department decision was beyond the scope of his initial decree.24 This appeal ensued.
Judge Pratt correctly interpreted the initial decree not to extend to supervision of the Department‘s settlement of its enforcement action against North Carolina. While we do not pass on the scope of the district court‘s authority with reference to other possible Department of Education actions,25 we affirm Judge Pratt‘s ruling that the injunction requested in this case would be inappropriate in light of the scope of his initial decree.
The purpose of Judge Pratt‘s 1973 decree was to require the Department to initiate appropriate enforcement proceedings under Title VI. It was directed at the Department‘s lassitude, if not recalcitrance, in fulfilling its responsibilities under that Act.26 However, Judge Pratt‘s 1973 decree, as affirmed with modifications by this court and as supplemented by him in 1977, did not purport to supervise or dictate the details of the Department‘s enforcement program, once that program culminated in an administrative proceeding, itself subject to judicial review, against a recipient state.
Judge Pratt‘s remedial decrees have been carefully crafted to embody this limitation. When the court ordered the Department to enforce the statute in 1973, it did not purport to dictate a fixed formula for choosing among these modes of implementation; i.e., it did not dictate specific compliance criteria but left the choice among lawful criteria to the discretion of the Department and of the states.27 Similarly, the particular terms of the amended criteria issued by the Department pursuant to the 1977 District of Columbia District Court order were never endorsed or compelled by the district court,28 and indeed have been subsequently revoked by the Department.29 Thus, the point of his various district court orders, as Judge Pratt explained, was not to specify what the final results of enforcement would be in every detail, nor to decree unalterable requirements for compliance with Title VI, but rather to have the Department initiate the process of enforcement, the process by
The district court orders were a rational means of assuring Department compliance with Title VI without an undue exercise of judicial control over the Department. Given the sweeping language of Title VI and the complexity of the educational systems to which it applies, the Department and the states have available to them many ways of implementing Title VI‘s goals of preventing discrimination in federally aided education. An enforcement proceeding or voluntary settlement may culminate in any one of these possible approaches to compliance; Title VI, as interpreted by Judge Pratt‘s decrees of 1973 and 1977, in the first instance gives responsibility to the agency and not the courts to choose among possible means of compliance. Hence, these decrees correct systemic defalcation on the part of the Department in fulfilling that responsibility, but do not, as we held in Adams v. Richardson, “resolve particular questions of compliance and noncompliance.”31
Were the district court to read its initial decree to contemplate the relief plaintiffs now seek, that court would encroach upon the role of the institutions responsible for implementing Title VI and constitute this court as perpetual supervisor of the enforcement actions of the Department and of the desegregation policies of the states. Moreover, were the district court to interpret its prior decrees to embody its conception of a specific plan for compliance with Title VI, such an interpretation would effectively reverse the normal relations between agency and court. Normally the court reviews the decisions of the agency rather than the agency simply obeying prior directives of the courts: a court issues directives governing the agency‘s future course of conduct only in the course of reviewing some final administrative action. Thus Judge Pratt‘s decrees of 1973 and 1977 reviewed the agency‘s prior policy of neglect in initiating enforcement proceedings and corrected this policy by decrees directing the initiation of enforcement. But Judge Pratt did not further purport in these decrees to specify in advance particularized determinations of policy to be adopted by the Department in the course of enforcement proceedings. The District Judge correctly saw no justification for such an extension of the court‘s domain. Rather, the form of compliance with the norms of desegregation is to be determined in the course of an ongoing enforcement proceeding against an individual state.32
If the limitation Judge Pratt recognized upon the scope of his authority enabled state instrumentalities to continue receipt of federal funding without judicial review, we would hesitate to accede to the decision below. In fact, however, such review is always available. The primary mechanism is a Title VI suit against the state itself. When such a suit is successful, failure of the Department to terminate funds would be an abuse of discretion, and would also evidence continuation of a general policy of non-enforcement violative of the district court‘s earlier decree. The point is, however, that direct relief under that decree is limited to situations which indicate persistence by the Department in the conduct that prompted it—namely, that the Department “has consciously and expressly adopted a general policy which is in effect an abdication of its statutory duty.”35
Moreover, after an administrative hearing is initiated, judicial consideration of the particular compliance decisions of the Department and the states may generally proceed by normal processes of judicial review. For example, if the administrative proceedings against North Carolina had culminated in a decision issued by the administrative law judge and adopted by the Department, the state or appellants here (intervenors in the administrative proceeding) would have been free to seek judicial review in federal court.36
The normal course of judicial review was similarly available for appellants in the context of the enforcement proceeding in question here. Because they assert claims which raise issues of law and fact common to the claims asserted by North Carolina in its suit against the Department, appellants could have sought to intervene in that suit;37 indeed, they may have had a
Our holding that appellants’ failure to intervene in the North Carolina suit undermines their claims before us derives from more than merely an overscrupulous regard for the niceties of appellate procedure. This failure has severe practical consequencеs in the present case. Because the consent decree has been entered, appellants must now request that this court order the Department to continue the enforcement proceeding against North Carolina and to petition the North Carolina U.S. District Court for relief from its obligations under the consent decree. Such an order by this court would disturb the fundamental balance our rules of procedure strike, not only between courts and executive agencies, but also among the powers of coordinate federal tribunals and the rights of parties who are or ought to be before those tribunals.
Because they declined to present their claims before the federal court in North Carolina, appellants now find themselves in the position of asking the District of Columbia federal courts to disregard a judgment of the North Carolina federal court. This posture of the case has several consequences. Initially, because the consent decree establishes rights which North Carolina is entitled to protect against subsequent judicial interference, effective relief by the district court here requires that North Carolina be a party before it. Any effective relief granted by this court would be in derogation of North Carolina‘s rights as established by the consent decree in a U.S. District Court outside this circuit.
In this respect the relief sought by appellants places them in a dilemma. Under the doctrine of standing, article III is held to require plaintiffs to allege an “actual injury” and one “likely to be redressed by a favorable decision.”41 So, if on the one hand, a court order compelling the Department to withdraw from the consent judgment called for only a gesture, a pro forma motion by the Department, this would neither provide relief substantial enough nor evidence enough of any real injury which was being redressed to satisfy the “case or controversy” requirement. The government would simply ask the North Carolina federal court to reconsider its decision as to whether the terms of the consent judgment were “fair and adequate“; that court would endorse the agreement once again; and the government would remain bound.
On the other hand, an order from this court that the government use all efforts to withdraw from the settlement agreement might have greater effect, if it were somehow to influence the North Carolina federal court‘s reevaluation of the merits of its own
In short, the only effectual relief from the U.S. District Court consent judgment is relief which undermines the rights of North Carolina and thus requires that the state be before a federal court in the District of Columbia—which it is not. The more clearly a “case or controversy” is defined, the more meaningful the relief sought, the more certainly North Carolina is an indispensable party.
Moreover, the relief now requested by appellants would place the Secretary of Education in the position of disobeying either U.S. District Judge Pratt‘s order or the order of U.S. District Judge Dupree in North Carolina. Appellants ask us to order the government‘s agents to do everything within their power to repudiate or disrupt the North Carolina consent judgment and then to hold those agents in contempt if they fail in doing so. Such relief would create an unseemly, indeed an intolerable, situation.43
We thus hold that, in the circumstances of this case, Judge Pratt correctly interpreted his prior decrees not to apply to the Department‘s actions in the present case. For these reasons, the judgment of the district court is
Affirmed.
J. SKELLY WRIGHT, Circuit Judge, with whom Chief Judge SPOTTSWOOD W. ROBINSON, III, and Circuit Judges WALD and MIKVA concur as to Parts I, II, III, and V, dissenting:
| TABLE OF CONTENTS | |
|---|---|
| Page | |
| I. BACKGROUND | 174 |
| II. TITLE VI AND THE Adams ORDERS | 180 |
| A. Title VI Enforcement Scheme | 181 |
| B. The Adams Orders | 183 |
| 1. En banc decision | 183 |
| 2. District Court decrees | 184 |
| C. Requesting Relief Under This Scheme | 186 |
| III. THE COURT‘S VISION OF THE ENFORCEMENT SCHEME | 188 |
| A. Title VI Suit Against Fund Recipient | 188 |
| B. Justifying This Alternative Vision | 191 |
| 1. Decentralizing judicial administration of Title VI | 191 |
| 2. Procedural balance among courts and parties | 194 |
| a. Mandatory intervention | 194 |
| b. Indispensable parties | 196 |
| 3. Recognizing North Carolina court‘s judgment | 200 |
| C. Mootness on Appeal | 203 |
| IV. THE DEPARTMENT HAS NOT FULFILLED ITS LEGAL OBLIGATIONS | 204 |
| A. Abandonment of Desegregation Criteria | 204 |
| B. Failure to Correct Deficiencies of the Prior Plan | 207 |
| 1. Desegregation of student bodies | 207 |
| 2. Desegregation of faculties | 208 |
| 3. Reduction of program duplication | 208 |
| 4. Enhancement of black institutions | 209 |
| V. CONCLUSION | 209 |
In Title VI of the Civil Rights Act of 1964,
Beginning in 1970 appellants, the Adams plaintiffs,3 brought a series of suits under Section 603 of the Act,
I respectfully dissent. In my judgment, the line the court draws between agency action that is and is not subject to direct judicial review under Section 603 is contrary to the plain language of the statute and antithetical to our entire jurisprudence of administrative law. Section 603 of the Civil Rights Act unambiguously provides aggrieved persons with a right to challenge “[a]ny [D]epartment or agency action,” including the Department‘s final decision to continue funding a system of higher education that allegedly discriminates on the basis of race. Section 602 requires the Department to enforce the nondiscrimination provision of the statute, and Section 603 authorizes aggrieved persons directly to obtain review of Department action taken pursuant to that statutory mandate. The court orders previously issued in this litigation were, of necessity, based on Section 603, and hence I believe that appellants’ request for relief easily fell within the scope of those orders. But even if no prior orders had ever issued, appellants would have a separate and enforceable right under Section 603 to obtain relief against allegedly arbitrary and capricious Department action in the venue of their choice. Final Department action is always subject to judicial review, unless explicitly precluded by statute or committed to agency discretion by law.
In light of the enforcement scheme Congress created in Sections 602 and 603, I would remand this case to the District Court. I would instruct it to determine whether the Department has followed its own rules and regulations in assessing the compliance of the State of North Carolina with the Act, and, should it find that the Department ignored its own criteria for what constitutes an acceptable desegregatiоn plan, to order the Department to resume the administrative hearing process that is condition precedent to a termination of funds. The District Court‘s role in this litigation, as in any other case where it reviews final administrative action, is to review Department resolutions of fund recipients’ compliance, not to resolve these questions itself or to order a termination of funds.
I. BACKGROUND
Congress passed Title VI in 1964 to prohibit racial and ethnic discrimination in education programs financed with federal funds.10 But it was not until January 1969
The Adams plaintiffs sued HEW officials for ignoring their responsibilities under Title VI, alleging that HEW‘s inaction aggrieved persons in each of ten states. The District Court found that plaintiffs had stated an enforceable cause of action and concluded that HEW had “not properly fulfilled its obligation under Title VI * * * to eliminate the vestiges of past policies and practices of segregation in programs receiving federal financial assistance.” Adams v. Richardson, 351 F.Supp. 636, 637 (D.D.C.1972) (Memorandum Opinion). The District Court further declared that the time for securing voluntary compliance had “long since passed” and that HEW‘s continued financial assistance to segregated systems of higher education violated plaintiffs’ rights under Title VI. Adams v. Richardson, 356 F.Supp. 92, 94 (D.D.C.1973) (Declaratory Judgment and Injunction Order). It therefore ordered HEW to effect compliance with Title VI in the ten states—by instituting administrative enforcement proceedings or by any other means authorized by law—and thereby to vindicate plaintiffs’ rights. Id. The court‘s order, like the plaintiffs’ original complaint, was aimed at requiring HEW either to obtain compliance with Title VI or to cease distributing federal funds to the institutions of higher education in those ten states.
On appeal to this court the government argued that its actions were not reviewable in any court of law17 and asserted that, in any event, the lower court‘s order “virtually transfer[red] the responsibility for the administration of Title VI to a single district judge.”18 This court, sitting en banc, unanimously rejected both arguments and affirmed the District Court. Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc) (per curiam).19 It explicitly rejected
Following the court‘s decision, HEW identified by letter the critical requirements of acceptable desegregation plans for each of the ten states. In response, North Carolina and seven other states20 submitted higher education plans.21 In June 1974 HEW approved those plans. In 1975, however, appellants requested further relief, emphasizing that numerous deficiencies in the approved plans infringed upon their Title VI rights.22 Appellants requested that HEW be required to revoke its approval of the desegregation plans that North Carolina and the other states had submitted in 1974.23 Appellants also asked that the states be directed to submit new plans that actually would comply with Title VI.
In 1977 the District Court once again found that HEW had failed to vindicate plaintiffs’ Title VI rights. Adams v. Califano, 430 F.Supp. 118 (D.D.C.1977) (Second Supplemental Order).24 The court held that the desegregation plans submitted by North Carolina and the five other states25 “did not meet important desegregation requirements” earlier specified by HEW and “have failed to achieve significant progress toward higher education desegregation.” Id. at 119. The court therefore ordered HEW to notify the states, including North Carolina, that the plans submitted did not satisfy requirements that were critical for compliance with Title VI. Id. at 121.
In addition, the court ordered HEW to transmit to the states, serve upon appellants, and file with the court “final guidelines or criteria specifying the ingredients of an acceptable higher education desegre-
the need to obtain specific commitments necessary for a workable higher education desegregation plan * * * concerning admission, recruitment, and retention of students * * *, concerning the placement and duplication of program offerings among institutions * * *, the role and the enhancement of Black institutions * * *, and concerning changes in the racial composition of the faculties involved * * *.
Id. at 120.
In directing the parties to draft the order, the District Judge made clear that he wanted the Department to be “under the compulsion of a Court Order to submit to the states certain specific requirements which the states must respond to * * *.”26 This directive reflected the concern of this court en banc that HEW had “not yet formulated guidelines for desegregating statewide systems of higher education * * *.” 480 F.2d at 1164.27 The District Court therefore ordered HEW to require the six states to submit desegregation plans revised in accordance with these criteria within 60 days of their receipt, and to accept or reject such submissions within 120 days thereafter. 430 F.Supp. at 121.
Pursuant to both the “specific direction” of the District Court and the en banc opinion of this court, HEW issued “Amended Criteria Specifying Ingredients of Acceptable Plans to Desegregate State Systems of Public Higher Education,”
Following publication of the criteria, HEW attempted to secure revised plans from the six states. By early 1979 the Department had obtained acceptable plans from five of them.35 But HEW‘s efforts to negotiate with North Carolina proved fruitless.36 To begin with, HEW would not accede to North Carolina‘s demand that the settlement offer be submitted to a court in the form of a proposed consent decree. It explained that “HEW‘s enforcement of Title VI would be irreparably undermined if a recipient of funds could routinely by-pass statutorily-mandated administrative compliance procedures by the expedient of filing a lawsuit and then obtaining a substantive consent decree * * *.”37 Rather, the matter could “be settled only by the submission of an acceptable desegregation plan, to be monitored and enforced administratively, with the lawsuit dismissed by consent.”38 Second, HEW concluded that the measures North Carolina had proposed in its latest submission offered “no realistic promise * * * of desegregating the UNC [University of North Carolina] system in the foreseeable future, as the law requires.”39 Indeed, the government assert-
Having failed to obtain an acceptable plan, HEW filed a Notice of Opportunity for Hearing in April 1979 to determine whether federal funds to assist higher education in North Carolina should be terminated. North Carolina immediately filed suit against HEW in the United States District Court for the Eastern District of North Carolina (hereafter the North Carolina court). State of North Carolina v. Dep‘t of HEW, 480 F.Supp. 929 (E.D.N.C.1979). North Carolina challenged HEW‘s effort to enforce Title VI and sought, inter alia, to enjoin the hearing and HEW‘s deferral of federal aid during the hearing‘s progress.42 The government, in response, requested that the North Carolina court either dismiss the lawsuit for lack of jurisdiction, id. at 934,43 or transfer the action to the District Court for the District of Columbia, id. at 931.44 The North Carolina court refused to enjoin the administrative hearing, but restrained HEW from imposing a limited de-
DE commenced a formal hearing before an administrative law judge (ALJ) in July 1980. The Adams plaintiffs were allowed a limited right to intervene. Over a period of nine months the parties presented their affirmative cases, creating a record of 15,000 pages and 500 exhibits. On June 20, 1981, however, the hearing was aborted because the government and North Carolina agreed finally to settle their dispute.46 Appellants were notified of the proposed agreement and were served with a copy of it two days later.47
On June 25, 1981 the Adams plaintiffs went to the District Court seeking a temporary restraining order and preliminary injunction to stop the Secretary from accepting the proposed agreement. The District Court denied the requested relief. Adams v. Bell, D.D.C. Civil Action No. 70-3095 (June 25, 1981), App. 26-30. The Adams plaintiffs filed their appeal the next day.
Before this court could consider the merits of their appeal, the Secretary accepted the settlement. He then joined with North Carolina in presenting the settlement to the North Carolina court for its imprimatur. The North Carolina court promptly scheduled a hearing regarding the proposed decree for July 13, 1981, and gave the Adams plaintiffs notice and opportunity to appear as amicus curiae. The Adams plaintiffs never sought to intervene as a party to the action48 and the North Carolina court did not inquire whether they were parties needed for a just adjudication.49 DE and North Carolina filed memoranda in support of the decree and attached as support the record of the administrative hearing as it had been completed to date. The Adams plaintiffs filed as amicus a memorandum in opposition, and contended that, without rebuttal evidence and administrative findings, the administrative record was an inadequate basis for judging the proposed decree. Nevertheless, on July 17, 1981 the North Carolina court approved the proposed consent decree. North Carolina v. Dep‘t of Education, E.D.N.C. No. 79-217-CIV-5 (Memorandum Decision, July 17, 1981).50
Today, this court affirms the District Court‘s June 25, 1981 denial of plaintiffs’ request for relief. It apparently agrees with the District Judge that the requested relief “was outside the scope of [the District Court‘s] prior decrees supervising the enforcement efforts of the Department.” Maj. op. at 163. In the court‘s view, these prior orders were limited—and necessarily so—to situations which indicate that the Department has adopted a general policy of nonenforcement. Thus neither these orders nor the statute authorize the District Court to review a compliance agreement entered into after the Department had started an administrative enforcement proceeding against the state. See maj. op. at 162-163, 165, 166 n. 30, 166, 168. Rather, in the court‘s view, appellants’ only recourse against such compliance agreements is through a Title VI suit against the state itself or through intervention in a court reviewing the settlement at the request of the government and the state. Maj. op. at 167, 168-170. I think that both the District Court and this court are plainly wrong.
II. TITLE VI AND THE Adams ORDERS
In the decision below the District Court found that its authority to review agency action was limited to judging agency compliance “with its statutory [and] constitutional responsibilities,”51 and did not extend to review of specific questions concerning the “individual states and school districts with which the Agency has to deal.”52 Therefore, the District Court concluded that the decree embodied substantially complied with the criteria promulgated by HEW in 1977. In accordance with the decree, the North Carolina court agreed to retain jurisdiction over the case until December 31, 1988, and to monitor compliance by North Carolina with Title VI and the Fourteenth Amendment. Finally, a provision in the consent decree obligates the government to dismiss without prejudice the administrative enforcement proceeding against North Carolina.
A. Title VI Enforcement Scheme
Section 601 of the Civil Rights Act gives every person participating in a program receiving federal financial assistance the right to be free from racial or ethnic discrimination.
Section 602 requires all federal agencies to effectuate the antidiscrimination provisions of the law.
But Section 602 also indicates that termination of funds is a serious enforcement step, and an agency is not to terminate funds without exhausting every possibility for conciliation. Thus the Department must make every effort to secure compliance by voluntary means.
Once the Department has exhausted its efforts under Section 602, as indicated by its “final” finding of compliance or noncompliance (and the concomitant decision to continue or terminate funding), judicial review becomes available under the terms of Section 603.
B. The Adams Orders
In dismissing appellants’ challenge to the Department‘s proposed acceptance of the settlement, this court and the District Court hardly cite to Section 603 or to the APA. Rather, they rely on a footnote in the 1973 en banc Adams decision.63 In footnote 5 of that opinion the court stated, in part:
Far from dictating the final result with regard to any of these districts, the order [of the District Court issued in 1972] merely requires initiation of a process which, excepting contemptuous conduct, will then pass beyond the District Court‘s continuing control and supervision. * * *
Adams v. Richardson, supra, 480 F.2d at 1163 n. 5. This court and the District Court now interpret this footnote as requiring only that the Department initiate an enforcement proceeding once it has determined that voluntary compliance is not possible.64 As a corollary, they read this footnote as prohibiting District Court review of particular compliance decisions the Department makes after the enforcement proceeding has begun.65 This literal reading of footnote 5 cannot stand alone against either the remainder of the 1973 en banc decision or the District Court‘s 1977 order, both of which followed directly from the Title VI enforcement scheme.
1. En banc decision.
To begin with, the 1973 en banc decision recognized that Section 603 and the APA authorize judicial review of all agency action that allegedly aggrieves persons entitled to the protection of Title VI.66 The
Furthermore, this court‘s statement in footnote 5—that enforcement would “pass beyond the District Court‘s continuing control and supervision” after initiation of administrative proceedings—simply reflected the status of the case as it had been presented to the court. At that time HEW had never before initiated an enforcement proceeding.69 The case was one of agency inaction and this court, as it has done in other circumstances, see, e.g., WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C.Cir.1971), was requiring the agency to act. The court‘s decision was lowering the longstanding bar to judicial supervision of agency decisions to prosecute. It is inconceivable that the court was simultaneously erecting a new bar to traditional judicial review of agency enforcement action. Footnote 5 merely reflects the time-honored wisdom that courts are not to interfere with the conduct of ongoing administrative proceedings. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). It does not and cannot bar normal judicial review of final agency action.70 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). To read it as doing so undermines Section 603 and our accepted jurisprudence of administrative law.
2. District Court decrees.
The District Court‘s own prior orders reflect this unexceptional interpretation of the statute and the en banc decision. In 1977 this case did return to the District Court‘s “control and supervision” for review of agency resolutions of fund recipient compliance with Title VI. Adams v. Califano, supra, 430 F.Supp. 118. First, the District Court ordered the Department to revoke its acceptance of North Carolina‘s 1974 Desegregation Plan and the plans of five other states because they were “not adequate to comply with Title VI of the 1964 Civil Rights Act.”71 The District Court found
These actions in 1977 are antithetical to the court‘s attempt to narrow the District Court‘s authority in this case. Both then and now appellants have argued that the Department accepted voluntary desegregation plans that fail to meet “the requirements of [DE‘s] own detailed letters [and Desegregation Criteria] * * *.”79 In both cases appellants have complained that they are aggrieved within the meaning of Title VI. The two cases are simply indistinguishable; if the District Court had authority to review agency action in 1977, it had that exact same authority in 1981.80
C. Requesting Relief Under This Scheme
It should now be exceedingly clear that appellants’ request for relief should have been granted. The prior orders of the
For this court to deny appellants’ request for relief, without considering its merits, the court must necessarily hold that Section 603 does not state a claim upon which the District Court could have based the requested relief. Appellants continually have urged that the District Court‘s jurisdiction is “the very same jurisdiction that began this case; that the government is giving substantial federal funds to [North Carolina].”86 This case began with appellants requesting, and the District Cоurt granting, relief under Section 603 via six separate statutes, including the APA.87 Appellants’ 1981 motion for further relief invoked these same six jurisdictional bases, and dismissal is inappropriate if any of them state a cause upon which relief can be granted.88
Indeed, even if appellants’ 1981 motion was somehow deficient, it cannot “be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts” that would support awarding the requested relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A basic tenet of the modern rules of civil procedure is that courts must consider a request for relief if the plaintiff can succeed on any theory, whether advanced in the complaint or not.89 Courts must always allow plaintiffs to amend their complaints appropriately,90 and courts can deny plaintiffs this opportunity only if it appears to a certainty that they cannot state a valid claim.91 Since Section 603 creates such a possibility, dismissal is appropriate only if it, independent
III. THE COURT‘S VISION OF THE ENFORCEMENT SCHEME
Rather than read Section 603 by its plain terms to apply to “any [final] department or agency action,”
In this part I examine the court‘s alternative vision of Title VI enforcement and the interpretive constructs it employs to erect this scheme. After analyzing—and rejecting—both this alternative scheme and the constructs upon which it is based, I then discuss the more difficult issue this appeal presents: whether the case has become moot. I conclude that the case has not become moot and therefore that appellants should be awarded appropriate relief.
A. Title VI Suit Against Fund Recipient
Under the court‘s version of Title VI‘s enforcement scheme, the “primary mechanism” for judicial review of the Department‘s final decision to continue funding an allegedly discriminatory system of higher education “is a Title VI suit against the state itself.” Id. at 167. Of course, the court does not cite to any statutory provision authorizing such a suit. Its omission is easy to explain: No such provision exists. I warmly welcome the court‘s suggestion that
I applaud the court‘s approval of the dual enforcement mechanism that has evolved under Title VI. See maj. op. at 167-168 n. 35. But the court‘s vision of this dual enforcement scheme apparently is of a different sort from that conceived by other courts—most particularly the Supreme Court. See Cannon v. University of Chicago, supra, 441 U.S. at 703-708 & n. 41, 99 S.Ct. at 1960-1963 & n. 41 (discussing interrelationship of private and public enforcement). These courts imply private suits against fund recipients to allow more direct and limited attacks on specific instances of discrimination.96 Awarding individual relief often will efficiently remedy the injury suffered and obviate the need for upsetting the entire program being funded. Private suits thus allow the courts to work with the Department in promoting the orderly enforcement of the Act.
By contrast to private suits, public enforcement typically attacks the more systemic cases of racial discrimination, where broad restructuring of programs and institutions is often necessary for achieving Title VI compliance. The Department is em-
There are, of course, federal funding statutes in which Congress knowingly commits certain decisions to unreviewable agency discretion. In these statutes Congress has limited the types of suits that private litigants can bring against federal enforcement agencies. For example, in the State and Local Fiscal Assistance Act,
The crucial issue for this court, in interpreting the State and Local Fiscal Assistance Act, was one of congressional design and intent. This is also the key issue in interpreting Title VI. But, as this court explicitly noted, Title VI and the State and Local Fiscal Assistance Act have categorically different enforcement schemes. See id., 709 F.2d at 1531 n. 69 (majority opinion) (distinguishing Adams v. Richardson). Title VI is not a “no strings” grant scheme; the Department has a much larger staff than does the Office of Revenue Sharing; Title VI does not expressly provide for suits against the fund recipients; and Title VI does not explicitly empower a federal court to order, on its own initiative, suspension or termination of federal funds.
In ignoring Title VI‘s more important attributes, the court commits fund termination decisions almost completely to agency discretion and leaves aggrieved persons without a direct remedy against arbitrary and capricious Department action. To obtain judicial review the court instructs aggrieved persons to initiate a judicially implied action against the fund recipient, and not an APA action against the Department. It thereby substitutes its own vision of the ideal enforcement scheme for the one Congress expressly created in Sections 602 and 603. In so doing the court reverses the normal relations between legislature and court, wherein the legislature writes, and the court interprets, the law.
B. Justifying This Alternative Vision
Because this alternative vision of the Title VI enforcement scheme does not flow from the statute itself, the court offers a series of policy arguments to justify its innovative construction of the Act. Not surprisingly, the court miscomprehends the interpretive constructs it offers. These constructs weigh in favor of, rather than against, recognizing the District Court‘s authority to provide limited review of Department compliance decisions with regard to particular states.
1. Decentralizing judicial administration of Title VI.
To begin with, the court boasts that its vision of the Title VI enforcement scheme will decentralize judicial administration of the Act. Maj. op. at 167. School systems who wish to challenge specific Department action and person aggrieved by allegedly discriminatory education programs will be able to sue only in the federal courts of the respective states.
First, the court contends that trying the suit in the locality of the transaction will further “public participation in and the accountability of [the] judicial process * * *.”
Second, the court notes that there “is a local interest in having localized controversies decided at home.” Maj. op. at 167. I do not dispute the legitimacy of this concern, but I question its relative importance in review of federal administrative action. In enacting Title
Third, the court claims that “geographic dispersion of cases is one way to avoid excessive concentration of judicial power in a single tribunal.” Maj. op. at 167. I suppose the concern here is that a risk of partisanship accompanies excessive concentration of power. But the court has not demonstrated that the District Court has shown unjustified partisanship for any party to this litigation. Moreover, to the extent there has been a concentration of power in the District Court, it has arisen because aggrieved persons have chosen to litigate there. That is a choice the venue laws give to them. See notes 107-112 infra and accompanying text.
The more important point is that Congress, not this court, is the body responsible for determining where Title VI claims will be litigated, and Congress has already done so—in our venue laws.
Our venue laws determine where lawsuits may be brought and ensure that proceedings are held in a convenient forum.103 Historically, the venue laws have given plaintiffs, within certain prescribed limits, the choice among convenient forums, even if the forum ultimately chosen is markedly less preferable than some other forum.104 This plaintiff orientation honors the time-accepted notion that plaintiffs should be masters of their own lawsuits105 and thus
Federal venue provisions follow these traditional principles, thereby reflecting the now conventional understanding that procedural rules ought to treat the government like any other litigant.107 Federal venue laws provide that plaintiffs, at their option, can sue federal officers, employees, or agencies in any of three places: where the plaintiff resides, where the defendant resides, or where the cause of action arose.108 Government agencies, like the Department, reside where they perform their official duties, usually the District of Columbia.109 As a practical matter, then, the venue laws allow aggrieved persons, like appellants, to sue in the District Court for the District of Columbia if they so choose.110 Therefore, if the District Court ends up reviewing many of the Department‘s enforcement actions around the country, it is only because aggrieved persons have properly exercised their statutory venue rights to sue in that court.111 This choice is one that Congress has given them, and the court exaggerates the gravity of their exercising this option.112
Of course, I do not mean to imply that plaintiffs’ control of the lawsuit is absolute. Any party can move for, or the District Court can sua sponte suggest, a transfer of an action to a clearly preferable forum.113 Indeed, in dismissing the request for relief this court relies on many of the conceptual reasons that would justify transferring a case. See maj. op. at 164 & nn. 33, 34; see also note 102 supra. But neither the government nor the plaintiffs made a motion for transfer, and the District Court did not suggest one. The reality is that plaintiffs’ motion for relief was not transferred: It was denied. The transfer provisions of the Judicial Code do not support such a denial; they were enacted precisely so that federal courts would not have to dismiss actions brought in proper but inconvenient, forums.114 15 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3841, at 200-201 (1976). This court‘s resort to the considerations that underlie the appropriateness of transfer as support for dismissing this action turns those transfer provisions on their head.115 It follows,
2. Procedural balance among courts and parties.
Next, the court asserts that its vision of the Title VI enforcement scheme appropriately reflects “the fundamental balance our rules of procedure strike * * * among the powers of coordinate federal tribunals and the rights of parties who are or ought to be before those tribunals.” Maj. op. at 170. Appellants chose not to intervene in North Carolina‘s suit against the Department, and the authority they request the District Court to exercise now would require relitigation of many of the issues tried and rights decided in that litigation. By contrast, these “severe practical consequences” cannot arise in the court‘s scheme, where only one litigation of the issues is possible. Id. at 168-170 & nn. 38, 39. Again, the court argues by hyperbole and miscomprehends the interrelationship of the procedural constructs it relies upon.
a. Mandatory intervention.
The starting point of the court‘s analysis is that parties with interests in related litigation must intervene to protect their rights. Id. at 169 n. 38, 169 n. 39. The court thus uses mandatory intervention (or collateral estoppel) principles as its primary interpretive construct: Title VI should correspondingly be interpreted to preclude parties who deliberately bypass an opportunity at intervention from pursuing their rights in separate litigation against the Department. Id. at 171 n. 43.
But the basic procedural rule of preclusion dictates that only parties to prior actions are bound; nonparties are not bound. 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4449, at 411 (1981). The basic rule of preclusion was first announced by Mr. Justice Brandeis in Chase Nat‘l Bank v. City of Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894 (1934), where he stated:
The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. * * * Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.
Id. at 441, 54 S.Ct. at 479. For the last half century courts have faithfully followed this rule,116 in recognition of the privilege that the law accords plaintiffs in their choice of forum,117 the availability of mandatory joinder,118 and the due process rights of the
Contrary to the court‘s starting proposition, our procedural rules do not require persons like the Adams plaintiffs to intervene in related litigation to protect their rights. The rules of intervention simply have not been drawn in compulsory terms.120 Intervention is a device that permits, but does not require, nonparties to become parties to litigation that affects them. A few isolated decisions hold open the possibility that, in exceptional circumstances, a nonparty may be precluded for failure to exercise an intervention as of right.121 But the overwhelming number of courts have decided to the contrary,122 especially where consent judgments are involved.123 And I know of no court that has precluded a party from relitigating a matter, as the court suggests today, see maj. op. at 168-169, because that party passed up an opportunity for permissive intervention.124
In point of fact, preclusion of nonparties for failure to intervene remains much more a creature of commentary than of cases. Some commentators have suggested that courts develop a new procedure to foreclose nonparties who have deliberately bypassed an opportunity to intervene. See, e.g., Note, Preclusion of Absent Disputants to Compel Intervention, 79 COLUM.L.REV. 1551 (1979); Comment, Nonparties and Preclusion by Judgment: The Privity Rule Reconsidered, 56 CAL.L. REV. 1098, 1122-1132 (1968). But the more experienced and thoughtful commentators note that the interests “sought to be served are better protected by mandatory joinder procedures.” 18 C. WRIGHT, A. MILLER & E. COOPER, supra, § 4453, at 453; accord, McCord, A Single Package for Multiparty Disputes, 28 STAN. L.REV. 707, 723-724 (1976). Thus Professors Wright, Miller, and Cooper concluded:
It is conceivable that some day this basic postulate may be eroded by courts that believe that one full and fair litigation of an issue is sufficient without regard to the identity of the parties. It is much better, however, to resist any such erosion. Our deep-rooted historic tradition that everyone should have his own day in court draws from clear experience with the general fallibility of litigation and with the specific distortions of judgment that arise from the very identity of the parties. * * *
18 C. WRIGHT, A. MILLER & E. COOPER, supra, § 4449, at 416-417 (footnote omitted).
The designers of Rule 19 of the Federal Rules of Civil Procedure dealt with this very problem (of relitigating issues previously decided) when they created the concept of mandatory joinder.125 They put thе burden on existing parties and the court to bring in those whose presence would be necessary and desirable to a just adjudication; they also required these parties and the court to work out a fair solution when joinder is not jurisdictionally possible.126 This court‘s notion that one who bypasses an opportunity at intervention should be precluded abrogates Rule 19 and its purpose completely. It is the parties‘—not the non-parties‘—responsibility to make certain that the court has before it all those needed to enable it to serve the ends of justice.127
The Adams plaintiffs appeared only as amicus curiae in the North Carolina litigation.128 They purposefully chose not to intervene, and neither the State of North Carolina, the government, nor the court attempted to join them.129 If, as the government and this court now assert, the proposed settlement so affected appellants’ rights that they should be barred from litigating in the District Court here, then the proposed settlement certainly could have been said, in the words of Rule 19, “as a practical matter [to] impede [their] ability to protect that interest or * * * [to] leave [the Department] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [appellants‘] claimed interest.”130 Thus, under the scheme Rule 19 creates, North Carolina cannot validly object to relitigation of the proposed settlement‘s merits “for clearly the plaintiff [in the earlier suit], who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtain[ed] against them.”131 Nor can the Department legitimately bemoan the threat of inconsistent obligations since it never attempted to foreclose that possibility by seeking to join appellants in the North Carolina litigation.132 Rule 19 makes the “severe practical consequences” that concern this court North Carolina‘s and the government‘s responsibility, not appellants‘.133
In sum, joinder principles, not mandatory intervention principles, strike the primary procedural balance among the powers of coordinate courts and the rights of parties who are or ought to be before those tribunals. These joinder principles would not condone preclusion of parties who do not intervene in related litigation; hence, they certainly do not justify the court‘s innovative construction of the Title VI enforcement scheme.
b. Indispensable parties.
As a corollary to its mandatory intervention construct, the court asserts that coordinate courts may not grant relief that would undermine the rights that absent parties have in the judgment of another court. Maj. op. at 170-171. The court thus uses indispensable party principles as a second interpretive construct: Title VI should be interpreted both to protect the rights North Carolina gained in its consent judgment and to prohibit collateral attack on those rights in a forum from which North Carolina is absent.
As to the undermining of North Carolina‘s interest in the consent judgment, I have already demonstrated that Rule 19 places the burden on the parties, not the non-parties, to protect rights so acquired.134 Even assuming that the North Carolina court had jurisdiction to entertain the proposed consent decree, its judgment is binding, in a procedural sense, only on those persons officially named as parties to the action. Rule 19 creates a mechanism by which parties like North Carolina can protect their interests, but to receive its protections “the parties must act for themselves.” 7 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1609, at 92 (1972).135 Since North Carolina did not invoke the Rule 19 procedure for avoiding successive lawsuits, it cannot validly object to appellants’ subsequent challenge to its Title VI settlement agreement.136
In any event, the absence of a party to be joined if feasible does not automatically require a court to dismiss the action before it. Rather,
[F]irst, to what extent a judgment rendered in the person‘s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person‘s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Were the District Court to weigh the
In short, indispensable party principles do not make inviolable the rights of absentee parties. Rather, they strike a balance between the rights of those who are or ought to be before the court and they provide a mechanism by which the parties can assure themselves of an adjudication on the merits. Indispensable party principles do not a priori preclude litigation in the District Court because North Carolina is absent; hence, they do not justify the court‘s restructuring of the Title VI enforcement scheme.
3. Recognizing North Carolina court‘s judgment.
Implicit in the court‘s post hoc concern for judicial decentralization and for procedural balance is an over-arching canon of interpretation: A statute should not be read to place coordinate federal courts in the position of disregarding each other‘s judgments. See Maj. op. at 170-171. Since the North Carolina court has already exercised jurisdiction over the proposed set-
Section 603 authorizes judicial review of Department action in two distinct fashions. First, it permits aggrieved persons to challenge Department action to the extent that the
In this case the Department aborted the administrative hearing, accepted a proposed desegregation plan, and continued to distribute federal funds. The Secretary has never made a “final” finding of noncompliance. Under the terms of the statute, neither the State of North Carolina nor the Department should have been able to seek review of that plan in the North Carolina court. Nor could that court have reviewed the plan as part of the lawsuit that the State of North Carolina filed in 1979; all justiciable issues in that controversy had already been decided,144 and the only possible controversy remaining—a termination of funds at the end of the administrative proceeding—was entirely hypothetical and speculative in 1981. See Board of Education of Cincinnati v. Dep‘t of HEW, supra, 396 F.Supp. at 247-249. Claims based on wholly speculative events are not justicia
Ironically, prior to submitting the North Carolina plan to the North Carolina court, the Department apparently had never before sought a court‘s imprimatur on a voluntary desegregation plan, though it had accepted hundreds of such plans in settlement of
C. Mootness on Appeal
Rather than erect an alternative vision of the enforcement scheme and justify it through these misconceived interpretive constructs, the court would do better to recognize the District Court‘s statutory jurisdiction and to face, head on, the more difficult issue that this appeal presents: whether the action is moot on appeal. Appellants sought to enjoin the Secretary from accepting the North Carolina plan as constituting compliance with
But this case is not moot. Mootness prevents a court from deciding a controversy only if no relief whatever can be granted. The Supreme Court has enunciated the precise principle as follows:
[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. * * *
Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895) (emphasis added).
Thus the proper issue on appeal is whether appellants can be granted “any effectual relief whatever.” Here, to be sure, the only relief requested was an injunction. Nonethеless, it “has long been established law that, in equity, a plaintiff is entitled to any relief appropriate to the facts alleged in the bill and supported by the evidence, even where he has not prayed for such relief.” Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir.1961). E.g., Bemis Brothers Bag Co. v. United States, 289 U.S. 28, 34, 53 S.Ct. 454, 456, 77 L.Ed. 1011 (1933); Lockhart v. Leeds, 195 U.S. 427, 437, 25 S.Ct. 76, 79, 49 L.Ed. 263 (1904). See Note, Mootness on Appeal in the Supreme Court, 83 HARV.L.REV. 1672, 1676-1677 & n. 26 (1970). Moreover, the Federal Rules specifically provide that a party is entitled to all appropriate relief, whether requested or not, if the equities favor it, see
In this case the action that allegedly moots the appeal came at the Secretary‘s behest: He accepted the proposed settlement and submitted it to the North Carolina court. To dismiss for mootness would set the unacceptable precedent that defendants who are subject to possible injunctive relief (and who prevail in the District Court) can moot subsequent appeals by taking the action sought to be prohibited while the appeal is pending. Nor can the North Carolina court‘s acceptance of the proposed decree moot this appeal: neither collateral estoppel nor comity principles bind nonparties or affect the relief available to them. See Maj. op. at 169 n. 39; Consumers Union of U.S. v. CPSC, 590 F.2d 1209, 1217-1219 (D.C.Cir.1978), rev‘d on other grounds, 445 U.S. 375, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980). In sum, appellants should not be prejudiced by the Secretary‘s actions and the equities favor shaping unrequested relief for their benefit.
Therefore, I would remand this case to the District Court for a decision on the
IV. THE DEPARTMENT HAS NOT FULFILLED ITS LEGAL OBLIGATION
The District Court below improperly dismissed this action and thus did not reach the merits of the Department‘s settlement with the State of North Carolina. Were I writing for a majority, I would simply stop at this point and remand to the District Court for a determination of those merits. However, the United States Commission on Civil Rights has already reviewed this agreement and concluded that it miserably fails to meet the Department‘s own requirements for a satisfactory desegregation plan. See note 9 supra. Therefore, to prevent the forest of civil rights violations from being obscured by the procedural trees of this litigation, I will now demonstrate how manifest the Department‘s abdication of its legal responsibilities has been. First, in approving North Carolina‘s plan the Department abandoned its own desegregation criteria, implementation of which was judicially mandated. Second, the Department approved a plan with the same basic infirmities as the 1974 Plan, which had already been judicially determined to be inadequate under the law.
A. Abandonment of the Desegregation Criteria
In promulgating desegregation criteria pursuant to the District Court‘s order, the Department found specific guidance in the prior opinions in the Adams litigation. See Adams v. Califano, supra, 430 F.Supp. at 120. Accordingly, the Amended Criteria152 provided numerous specific steps to be taken under three broad rubrics: I. Disestablishment of the Structure of the Dual System;153 II. Desegregation of Student Enrollment;154 and III. Desegregation of Faculty, Administrative Staffs, Non-Academic Personnel, and Governing Boards.155
A comparison of the North Carolina plan155 with the Amended Criteria reveals innumerable, fundamental discrepancies. Several examples suffice to show a common pattern. For instance, Part I-C of the Criteria requires the state to “take specific steps to eliminate educationally unnecessary program duplication among traditionally black and traditionally white institutions in the same service areа.”156 This requirement reflected the District Court‘s concern that “specific commitments” were necessary in the area of “duplication of program offerings among institutions.”157 This was a crucial area for reform because,
Part II-C of the Criteria requires each state plan to adopt the goal that “the proportion of black state residents who graduate from undergraduate institutions in the state system and enter graduate study or professional schools in the state system shall be at least equal to the proportion of white state residents who graduate from undergraduate institutions in the state system and enter such schools.”160 This criterion responded to a specific concern expressed by this court en banc concerning the “lack of state-wide planning to provide more and better trained minority group professionals.”161 Yet the new state plan approved by the Department does not even mention, let alone adopt, this goal.
Similarly, Part II-E of the Criteria mandated a commitment to take all reasonable steps to reduce the disparity between the proportion of black and white students graduating from public institutions of higher education.162 This requirement was di
Part III of the Criteria identified a number of specific measures to be taken to assure desegregation of faculty and nonacademic employees.167 The new state plan, however, fails to respond to any of the requirements identified in the Criteria; instead, the plan merely incorporates each constituent institution‘s individual affirmative action plan.168 This approach does not comport with this court‘s guidance that “[t]he problem of integrating higher education must be dealt with on a state-wide rather than a school-by-school basis.”169 Moreover, the inadequacies of the existing affirmative action plans had already been explained in some detail by the Department itself.170 For instance, under the existing affirmative action programs the faculties of
Overall, of the 25 specific requirements identified in the Amended Criteria, the North Carolina plan approved by the Department incorporates none.173 At most, the plan responds weakly to some of the general concerns underlying the Criteria, but a comparison of the plan with the Criteria demonstrates a failure to comply with any specific mandates. Actually, the record shows that HEW did endeavor to apply the criteria during the negotiations that took placе shortly after the Second Supplemental Order and during 1979.174 However, as the above examples indicate, the Department suddenly reversed its prior disapproval of North Carolina‘s proposals and abandoned the Criteria in 1981 when it approved the North Carolina plan.
The government does not appear to deny the existence of significant divergences be
The government also argues against application of the Criteria because “there has been substantial progress in North Carolina since this litigation was commenced back in 1970.”181 This argument makes little sense. If progress had truly been achieved, it should be easier to secure compliance with the Criteria and the requirements should not be loosened. Moreover, available evidence hardly supports assertions of substantial progress. Consider merely one prominent indicator of progress. In 1972 enrollments in the five traditionally black institutions in the University of North Carolina system were 95 percent black; in 1980 these student bodies were still 98 percent black.182 The eleven traditionally white institutions with student bodies that were 97 percent white in 1972 were still 93 percent white in 1980.183 In any event, the government‘s reference to progress made since 1970 has little meaning since the Criteria were formulated in 1977 and presumably accounted for progress made by that date.
B. Failure to Correct Deficiencies of the Prior Plan
In the proposed agreement the Department has also approved a plan that contains the same basic infirmities as a plan that the District Court determined to be inadequate over five years ago. Indeed, the new plan is in many ways even weaker than North Carolina‘s 1974 Plan. As noted earlier,184 HEW had initially accepted the 1974 Plan,
A comparison of North Carolina‘s new plan185 with the 1974 Plan186 demonstrates little in the way of substantive improvement. In particular, the plans can be analyzed in the four key areas which the District Court specifically identified in 1977 when it ordered the Department to revoke its approval:187
- desegregation of student bodies;
- desegregation of faculties;
- desegregation of program duplication;
- enhancement of black institutions.
1. Desegregation of student bodies.
The new plan proposes a large number of informational and recruiting activities to increase the presence of blacks at traditionally white institutions and of whites at traditionally black institutions.188 The 1974 Plan also proposed a large number of such activities,189 some of which are precisely the same as those included in the proposed agreement.190 The goal of such efforts is to increase the presence of whites and blacks at traditionally black and white institutions, respectively. Along these lines, both plans set specific numerical goals for student enrollments.
Amazingly, however, desegregation of student bodies under the new plan would actually proceed at a slower rate than that projected in the 1974 Plan. Indeed, progress under the new plan would occur at
| Average Annual Increase | |
|---|---|
| Percentage of Whites Enrolled at Traditionally Black Institutions | + 0.633% |
| Percentage of Blacks Enrolled at Traditionally White Institutions | + 0.533% |
By contrast, the 1974 Plan had established the following goals for increasing the presence of underrepresented groups during the final 1976-1977 period:192
| Annual Increase (1976-1977) | |
|---|---|
| Percentage of Whites Enrolled at Traditionally Black Institutions | + 1.5% |
| Percentage of Blacks Enrolled at Traditionally White Institutions | + 0.6% |
Thus during the most comparable time frames the 1974 Plan set much more ambitious goals for desegregation of student bodies than does the proposed new plan. Also, progress under the new plan will actually come at a slower pace than that experienced during the past eight years, when no approved plan existed. This conclusion is evident from the following table.193
| Average Annual Increase | ||
|---|---|---|
| Historical 1972-1980 | Planned 1980-1986 | |
| Percentage of Whites Enrolled at Traditionally Black Institutions | + 0.775% | + 0.633% |
| Percentage of Blacks Enrolled at Traditionally White Institutions | + 0.537% | + 0.533% |
2. Desegregation of faculties.
The desegregation of faculties was a second area in which the District Court found the 1974 Plan lacking. The proposed agreement merely incorporates “[e]ach constituent institution‘s affirmative action plan”194 submitted under Executive Order No. 11246. No other action is contemplated. The 1974 Plan also adopted each constituent institution‘s affirmative action plan.195 But in addition the earlier plan proposed a series of supplemental efforts designed to support the separate institutional commitments.196 While the proposals were otherwise identical, the 1974 Plan was to this extent even less objectionable than the new plan.
3. Reduction of program duplication.
The 1974 Plan did not propose any specific steps toward elimination of educationally unnecessary program duplication among black and white institutions in the same service area. However, the State then at least expressed a willingness to identify and eliminate “instances of unnecessary and costly duplication of programs within the University, taking into account the educational needs of the whole State.”197 The commitment was a qualified and cautious one. Nonetheless, even this modest commitment in the 1974 Plan is missing from the new agreement, which is totally silent on the entire problem of duplicative programs.198
4. Enhancement of black institutions.
With respect to efforts to strengthen the five traditionally black institutions in the UNC system, the new plan does appear to offer greater promise than the 1974 Plan. To this extent the new plan is not so infirm as the 1974 proposal. However, the nine-part program outlined in the proposed agreement has deceptively little substance.199 Moreover, the Department had criticized the same sorts of commitments in 1979 because they failed to provide the traditionally black institutions “with facilities, programs, degree offerings and faculty comparable to traditionally white institutions with similar missions.”200 Indeed, the new commitments appear to represent substantially less than those previously offered by the University but deemed inadequate by the Department.201 Nowhere has the Department explained its reassessment of the University‘s proposal in this area.
To the extent that the new plan may provide limited progress toward enhancing the traditionally black institutions, serious problems remain. For the mere pursuit of improved institutions with predominantly black enrollments represents nothing more than a policy of “sеparate but equal” with an emphasis on equality. Such a plan, particularly when compared to the 1974 Plan, cannot survive judicial review—at least not since 1954. See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
In sum, it is exceedingly apparent to me that the Department has abandoned the desegregation criteria, without rational explanation, in entering into the North Carolina settlement. The Department has thus acted arbitrarily, capriciously, and without the authority of law. See
V. CONCLUSION
The court rationalizes this unjustified intrusion on the legislative prerogative by resort to a set of procedurally-based constructs that are wholly foreign to our accepted scheme of procedural justice. Our procedural rules are tuned to reach a necessarily rough, but satisfactory, long-run accommodation of two competing jurisprudential policies: finality and correctness. Finality is the notion that all litigation must have an end, and thus militates forcibly against renewed exploration of previously litigated matters. Correctness is the notion that adjudication should produce accurate and fair results, and thus allows judgments to be reopened and issues reexamined. These two policies are at tension in every case. Rules concerning venue, transfer, intervention, joinder, estoppel, and indispensable parties are designed to achieve a delicate balance between policies of finality and correctness. Properly applied, they ensure that willing parties can participate in litigation that affects their interests and that courts can reach the merits of cases presented to them. The court‘s application of these procedural principles produces the opposite result: It precludes the District Court and the parties before it from litigating the merits. The court‘s procedurally-based constructs favor finality concerns to the exclusion of any concern for correctness. In my judgment, this approach works a manifest procedural injus
Moreover, the injustice resulting from this case will not simply be procedural. Substantively, today‘s decision will help those who oppose the civil rights laws to reduce
Accordingly, I dissent.
WALD and MIKVA, Circuit Judges, dissenting:
We concur with Parts I-III and V of Judge Wright‘s dissenting opinion, although we would leave the initial determination of the conformity of the North Carolina agree
Notes
“... We have concluded that this agreement fails to incorporate the major requirements of the court-mandated higher education desegregation criteria with regard to strengthening the traditionally black institutions, desegregation of student enrollments, and desegregation of faculty and administrative staff. The agreement offers less than the 1979 plan which was rejected by HEW and is similar in scope to the 1974 plan which the Adams court found to be inadequate. Additionally, the major issue preventing approval of the 1979 plan—the elimination of program duplication among black and white institutions serving the same geographic areas—is not addressed in the agreement.”
The Commission then went on to express its concern that “... by submitting the agreement as a consent decree in the U.S. District Court for the Eastern District of North Carolina instead of as a desegregation plan subject to the Adams criteria and review by the U.S. District Court for the District of Columbia, the Department of Education and North Carolina, in effect, may avoid scrutiny by the Adams court. The consent decree approach sets a Departmental precedent as a way to circumvent the Title VI administrative compliance procedures and the court-ordered desegregation requirements.” Brief of plaintiffs-appellants at 12 (quoting report of Commission on Civil Rights) (emphasis added).
Initially, many of the states’ provisions did not apply to colleges or universities; nonetheless, state legislatures subsequently passed statutes extending compulsory racial segregation to higher education. U.S. COMM‘N ON CIVIL RIGHTS, supra, at 9 & n. 47. While the Supreme Court initially gave sanction to such practices, see Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), it ultimately found that such segregation created intolerable inequities in educational opportunities. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938); Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). These suits had their counterpart in North Carolina in McKissick v. Carmichael, 187 F.2d 949 (4th Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1021, 95 L.Ed. 1374 (1951). The Supreme Court finally rejected “separate but equal” public education as violative of equal protection of the laws, finding that separate educational facilities were inherently unequal. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
The Southern states remained resistant, however, to the Court‘s mandate in Brown. They adamantly opposed desegregation of higher education, and constitutional litigation to force them to desegregate did not produce much in the way of results. Thus Congress was forced to act by statute.
The 1973 decree which Judge Pratt interprets here had ordered the Department to initiate enforcement proceedings. See, e.g., Adams v. Richardson, 356 F.Supp. at 94 (“Having once determined that a state system of higher education is in violation of Title VI, and having failed during a substantial period of time to achieve voluntary compliance, defendants have a duty to commence enforcement proceedings ... [d]efendants, their successors, agents and employees, are required and enjoined within 120 days from the date of this Order to commence enforcement proceedings by administrative notice of hearing, or to utilize any other means authorized by law, in order to effect compliance with Title VI by the states....“). See also infra note 25, 30.
We wrote on review that the purpose of the 1973 decree was not to “resolve particular questions of compliance and noncompliance.” 480 F.2d at 1163. Our opinion continued: Far from dictating the final result with regard to any of these districts, the order merely
The District Court had issued its first supplemental order, dealing with HEW‘s failure to enforce Title VI with respect to numerous elementary and secondary school districts, in 1975. See Adams v. Weinberger, 391 F.Supp. 269 (D.D.C.1975), modified sub nom. Adams v. Mathews, D.D.C. No. 70-3095 (July 17, 1975) (directing HEW to commence prompt enforcement on all complaints and setting strict deadlines for monitoring HEW‘s performance); see also Adams v. Mathews, D.D.C. No. 70-3095 (June 14, 1976). The court later ordered HEW to obtain more resources, see Adams v. Califano, D.D.C. No. 70-3095 (Oct. 26, 1977), and held that it would be a violation of the order not to use fully the resources that were available, see Adams v. Califano, D.D.C. No. 70-3095 (Dec. 29, 1977).In other words, we agree with the district court that, for the reasons set out at pp. 166-167, the decision made by the Department to compromise an ongoing enforcement proceeding is not at that stage an action subject to judicial review under
Of course, we do not suggest that the district court below would not in a formal sense meet the prerequisites of jurisdiction and venue for hearing plaintiffs’ case (except perhaps the requirement of jurisdiction to hear a suit against North Carolina, see infra p. 170). Instead, as noted in text, these principles correctly informed Judge Pratt‘s interpretation of the decrees at issue in this case.
See also note 78 infra. In a separate publication Joseph A. Califano, Jr., the Secretary of HEW who developed the Criteria, has said:Within the limits of the court orders, the means were left to the state governors, legislatures, and higher education system. We tried to draw a line between “education dеcisions,” properly left to the states, and decisions that perpetuated dual systems. * * *
J. CALIFANO, GOVERNING AMERICA 247 (1981). Within this sphere, however, states’ plans had to comply with the letter of the Criteria. Id. at 248.
Of course, administrative proceedings for fund cutoffs provide an important means for enforcing Title VI. But such proceedings will be less frequently the occasion for judicial scrutiny of compliance by federally funded programs, because judicial review will be available only after a Federal “department or agency action.”
We are puzzled by the suggestion that it was the responsibility of the North Carolina federal district court and of the parties before it to join the Adams plaintiffs in the litigation before that court. See Judge Wright‘s Dissenting Op. at 196-197. When that litigation was pending, none of the Adams plaintiffs were citizens of North Carolina. North Carolina citizens were joined to the Adams suit, by appellants’ motion to add new parties plaintiff, only in November 1982, a year after entry of the consent judgment by the North Carolina district court. Thus, when the proposed consent decree was before the North Carolina federal district court, the Adams plaintiffs were not persons “subject to service of process” by that court and therefore could not meet the elementary requirement for joinder set out by the opening words of Rule 19(a). If appellants—who of course now include citizens of North Carolina—wished to assert some interest in the administrative proceeding and in the review of that proceeding by the North Carolina federal district court, it was incumbent upon them to intervene.
In any case, whatever the responsibility of the North Carolina parties to join the Adams plaintiffs in order to obtain collateral estoppel effect for the North Carolina federal district court judgment, this responsibility bears no relation to our present holding. We do not consider that relief under the Adams decrees is barred because of findings on any particular issues by the North Carolina federal district court. Moreover, given the timing of appellants’ suit, it would indeed be odd to consider collateral estoppel relevant to the initial action in the U.S. District Court of the District of Columbia. The Adams plaintiffs sought to enjoin the Department‘s action prior to entry of the North Carolina consent judgment; their action could of course not be barred by a judgment which had not yet issued. In short, we have no occasion to give collateral estoppel effect to the North Carolina judgment; nor do we hold that plaintiffs’ failure to intervene in the North Carolina distriсt court proceedings foreclosed relief otherwise available in the district court below. Compare Dissenting Opinion of Judge Wright at 194-196. Rather, our observation that appellants could have intervened in the North Carolina federal district court proceedings emphasizes that the interpretation of the Adams decrees by U.S. District Judge Pratt does not foreclose appellants from seeking judicial consideration of the Department‘s actions: such consideration was fully available through normal procedures for judicial review.
Letter from Albert T. Hamlin, Assistant General Counsel, Civil Rights Division, HEW, to Joseph J. Levin, Jr., December 18, 1979, at 1, App. 111 (emphasis added).Of course, nothing in the present opinion reflects upon the power of the district court in the District of Columbia to supervise the policy of the Department with regard to whether it will initiate enforcement proceedings against school systems. As noted above, this is the gravamen of the court‘s initial decree. See supra pp. 165-166. The court exercised this power in 1977, for example, when it ordered the Department to revoke its acceptance of plans submitted by the individual states which perpetuated past illegal discrimination. Adams v. Califano, 430 F.Supp. at 119-21; see supra note 30. We of course do not pass upon the question whether the court may have occasion to exercise this power again with reference to plans accepted by the Department after negotiation. Rather, once the processes of administrative enforcement and subsequent judicial review are set in motion, the role of the district court‘s enforcement orders comes to an end.
Letter, supra note 37, at 2, App. 109. The plan was “virtually identical” to the 1974 plan, and one member of North Carolina‘s own university board, civil rights attorney Julius Chambers, resigned because of it, charging that the plan was “not a sincere commitment to see that minorities [were] brought into the system.” J. CALIFANO, supra note 34, at 251.[F]irst, to what extent a judgment rendered in the person‘s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person‘s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Under the first and second prongs of this test, when the relief requested must, to satisfy plaintiffs’ claims, be in derogation of the rights of a person not before the court, that person is an indispensable party. In the present case, the essence of plaintiffs’ claims is, of course, that the North Carolina higher education system should not receive federal funds because of the anti-discrimination provisions of Title VI; it is therefore inherently prejudicial to the entitlement established by the North Carolina federal court—the determination that the North Carolina higher education system is in compliance with Title VI, so that those provisions do not bar the grant of any aid otherwise available to the system. Moreover, applying the fourth prong of the test under Rule 19(b), we note, without passing on the question of the remedies which appellants may now pursue, that at the time of the decision under review, appellants could have asserted their claims by intervening in the suit before the North Carolina district court. See supra pp. 168-170.
Judge Wright‘s dissent suggests that North Carolina may have “waived” the protections of Rule 19 by failing to join the Adams plaintiffs as parties before the North Carolina federal district court. But, as we have already noted, that court had no personal jurisdiction over these plaintiffs at the time it approved the consent decree. See supra note 39. North Carolina hardly “waived” its rights by not asking the North Carolina federal district court to do something that court had no power to do.
North Carolina contended that the enforcement proceeding was unauthorized by Title VI and violated various norms of constitutional and administrative law. State of North Carolina v. Dep‘t of HEW, 480 F.Supp. 929, 937-938 (E.D.N.C.1979).The provision authorizing venue where real property is situated has rarely been invoked in administrative law actions.A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or any agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. * * *