2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-30-2004

Three Rivers Center v. Housing Auth Pgh

Precedential or Non-Precedential: Precedential

Docket No. 03-4356

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1

 PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 03-4356

 

THREE RIVERS CENTER FOR

INDEPENDENT LIVING, INC.; DANA

WASHINGTON, on behalf of herself

and all others similarly situated, 

Appellants

v.

HOUSING AUTHORITY OF THE

CITY OF PITTSBURGH; KEITH

KINARD, in his official capacity as the

Executive Director of the HOUSING

AUTHORITY OF THE CITY OF

PITTSBURGH

 

 

On Appeal from the United States

District Court for the Western District of

Pennsylvania

(Dist. Court No. 02-cv-01069)

District Judge: Hon. Terrence F.

McVerry

 

Argued: May 12, 2004

Before: NYGAARD, MCKEE and

CHERTOFF, Circuit Judges

(Filed: August 30, 2004)

Stephen F. Gold (Argued)

125 South Ninth Street, Suite 700

Philadelphia, PA 19107

Mark J. Murphy

Robin Resnick

Disabilities Law Project

1315 Walnut Street, Suite 400

Philadelphia, PA 19107-4798

David Kahne

P.O. Box 66386

Houston, TX 77266

Paul O’Hanlon

Disabilities Law Project

1901 Law & Finance Building

429 Fourth Avenue

Pittsburgh, PA 15219-1505

Counsel for Appellants

Susan A. Yohe (Argued)

Buchanan Ingersoll P.C.

One Oxford Centre

310 Grant Street, 20th Floor

Pittsburgh, PA 15219-1410 

Counsel for Appellee

 

OPINION OF THE COURT

 

CHERTOFF, Circuit Judge

This is a suit seeking declaratory
2

and injunctive relief compelling the

Housing Authority of the City of

Pittsburgh to comply with regulations the

Department of Housing and Urban

Development promulgated pursuant to

Section 504 of the Rehabilitation Act. The

regulations require the Pittsburgh Housing

Authority to effect certain systemic

reforms in order to provide accessible

public housing to handicapped individuals.

They require, among other things, that five

percent of the dwelling units in any newly

constructed public housing project be

accessible to persons with ambulatory

disabilities and an additional two percent

of the units be accessible to persons with

hearing or vision impairments.

The Housing Authority—and this

appears to be undisputed—has continually

failed to comply with HUD’s regulations.

Plaintiffs allege that, as a result, the

Pittsburgh Housing Authority has denied

accessible housing to disabled individuals.

As troubling as this may be, however, our

task here is to determine whether

appellants may properly maintain a suit to

enforce the HUD regulations, by way of

either a private right of action under the

Rehabilitation Act or under Section 1983.

There are certainly steps HUD itself can

and should take to effect compliance. But

the District Court partially dismissed

appellants’ complaint because it

determined that they did not have a private

right of action to enforce the HUD

regulations. 

Our analysis requires a careful

review and discussion of the law

governing when private parties can sue to

enforce a legislative or regulatory

mandate. For the following reasons, we

will affirm the denial of a right of action to

enforce the regulations. 

I.

Section 504 of the Rehabilitation

Act of 1973 is commonly referred to as the

“civil rights bill of the disabled,” ADAPT

v. Skinner, 881 F.2d 1184, 1187 (3d Cir.

1989) (en banc), or the “cornerstone of the

civil rights movement of the mobilityimpaired.” Id. at 1205 (Mansmann, J.,

concurring in part and dissenting in part).

Generally, the statute “prohibits any

program or activity receiving federal funds

from discriminating against persons with

disabilities.” Bowers v. National

Collegiate Athletic Ass’n, 346 F.3d 402,

432 (3d Cir. 2003). It provides: 

No otherwise qualified

individual with a disability

in the United States . . .

shall, solely by reason of her

or his disability, be excluded

from the participation in, be

denied the benefits of, or be

subjected to discrimination

under any program or

activity receiving Federal

financial assistance or under

any program or activity

conducted by any Executive

agency or by the United

States Postal Service.
3

29 U.S.C. § 794(a).1

HUD promulgated regulations to

effectuate Section 504 in 1988. The

provisions that address accessibility in

public housing projects and facilities

appear among the regulations at 24 C.F.R.

§§ 8.20-33. 

When a public housing authority

that receives federal funds constructs new

housing or “substantially alters” existing

housing,2 the HUD regulations require that

five percent of the dwelling units in those

facilities be accessible to persons with

mobility disabilities and two percent be

accessible to persons with hearing or

vision impairments. See 24 C.F.R. §§

8.22(a)-(b), 8.23(a). When one or more

dwelling units in an existing facility are

altered—but the alterations do not rise to

the level of “substantial alterations”—the

units must be made accessible to the

mobility impaired, until five percent of the

units in the facility are accessible. See 24

C.F.R. § 8.23(b)(1).3 

In addition, accessible dwelling

units must, to the “maximum extent

feasible,” be distributed throughout

projects. 24 C.F.R. § 8.26. And they must

“be available in a sufficient range of sizes

and amenities so that a qualified individual

with handicaps’ choice of living

arrangements is, as a whole, comparable to

that of other persons eligible for housing

assistance under the same program.” Id.

Because the Pittsburgh Housing

Authority receives federal funding through

HUD, it is subject to Section 504's

requirements. The Housing Authority has

altered existing facilities and built new

ones since the time the HUD regulations

went into effect, but it failed to satisfy the

obligations the regulations impose.4

1

 The Rehabilitation Act’s other

provisions serve similar ends. Section 501

prohibits employment discrimination based

on disability by federal agencies. See 29

U.S.C. § 791. Section 503 prohibits

employment discrimination by federal

contractors and grantees. See 29 U.S.C. §

793. 

2

 “Substantial alterations” are

alterations that cost 75% or more than the

replacement cost of the completed facility.

24 C.F.R. § 8.23(a). 

3 The regulations allow HUD, upon

request, to prescribe a higher percentage or

number than the regulations addressing

newly-constructed and altered housing

require, “based upon demonstration to the

reasonable satisfaction of HUD of a need

for a higher percentage or number, based

on census data or other available current

data . . . or in response to evidence of a

need for a higher percentage or number

received in any other manner.” 24 C.F.R.

§§ 8.22(c), 8.23(b)(2).

4

Since this case reaches us upon the

District Court’s disposition of a motion to

dismiss under Federal Rule of Civil

Procedure 12(b)(6), we relate the facts as

set forth in plaintiffs’ complaint.
4

As a consequence of the Housing

Authority’s failure to comply with the

HUD regulations, the demand for

accessible public housing in Pittsburgh

exceeds the supply. Indeed, in 1995 the

Housing Authority signed a “Voluntary

Compliance Agreement” with HUD

acknowledging “compliance deficiencies”

and “civil rights deficiencies.” It conceded

the need for at least 546 accessible rental

units, and it promised to provide them. In

return, HUD agreed to continue to provide

the Housing Authority with federal

funding. By the Housing Authority’s own

admission, however, there were only 200

units accessible to people in wheelchairs

as of March 2002.

As a result, when Dana Washington

applied for public housing in 2001, the

Housing Authority assigned her to a unit

with stairs even though she suffers from

near-paralysis of her lower left limb and

must use a wheelchair. When Washington

complained about the assignment, the

Housing Authority re-assigned her to

another unit. But again the sink and

bathtub in the newly-assigned unit were

inaccessible to Washington. 

Similarly, Three Rivers Center for

Independent Living, Inc. (“Three

Rivers”)—a non-profit corporation that

advocates for the rights of individuals with

disabilities—reports that many of its

clients have a hard time finding accessible

and affordable housing.5 Consequently,

Three Rivers expends considerable effort

assisting people with disabilities in trying

to locate accessible housing.

In June of 2002, Washington and

Three Rivers filed the present suit against

the Pittsburgh Housing Authority and its

Executive Director, Keith Kinard, in his

official capacity. They seek an order

declaring the Pittsburgh Housing Authority

in violation of the HUD regulations and

enjoining the Housing Authority to comply

with them.6 Specifically, plaintiffs seek to

5

 Three Rivers is a federally-funded

entity that is statutorily required to, inter

alia, promote “equal access of individuals

with significant disabilities to society and

to all services, programs, activities,

resources, and facilities, whether public or

private and regardless of the funding

source.” 29 U.S.C. § 796f-4(b)(1)(D).

6

 In their complaint, plaintiffs

sought to represent a class of “all people

with disabilities who currently, or in the

future, will live in public housing

[maintained by the Pittsburgh Housing

Authority] that is not accessible . . . as well

as all people with disabilities who

currently are, or in the future, will be, on

the waiting list for . . . public housing.”

App. 12. The docket entries from the

District Court indicate that although

plaintiffs moved for class certification and

the issue was briefed, the parties filed a

joint motion asking the District Court to

“hold in abeyance Certification

Activities.” App. 5. The District Court

granted the motion and as a result it never

ruled on the motion for class certification.

We therefore treat the present suit as an
5

enforce four requirements: (1) that a

specific percentage of newly constructed

public housing be accessible to the

disabled, see 24 C.F.R. § 8.22(a)-(b); (2)

that a specific percentage of substantiallyaltered public housing be accessible to the

disabled, see 24 C.F.R. § 8.23(a); (3) that

altered (but not substantially altered)

public housing be made accessible until at

least five percent of the units are

accessible, see 24 C.F.R. § 8.23(b)(1); and

(4) that accessible housing be distributed

throughout projects and comparable to

housing available to non-disabled

individuals, see 24 C.F.R. § 8.26.7

Defendants moved to dismiss

plaintiffs’ complaint “to the extent that it

seeks relief for the violations of

regulations promulgated by [HUD] to

implement § 504 of the Rehabilitation

Act.” App. 25. They argued that plaintiffs

did not have a private right of action to

enforce the regulations because the

regulations “are too far removed from

Congressional intent as reflected in § 504

to constitute ‘federal rights’ privately

enforceable under either § 504 or § 1983.”

App. 26-27. The District Court granted

defendants’ motion, relying largely on our

opinion in South Camden Citizens in

Action v. New Jersey Dep’t of Envtl. Prot.,

274 F.3d 771 (3d Cir. 2001), cert. denied,

536 U.S. 939 (2002) and the Supreme

Court’s decision in Alexander v. Sandoval,

532 U.S. 275 (2001). Plaintiffs timely

appealed.8

II.

The District Court, which exercised

its jurisdiction under 28 U.S.C. §§ 1331

and 1343, did not dismiss plaintiffs’

complaint in its entirety. Rather, it

dismissed the complaint only insofar as

plaintiffs sought to enforce the HUD

regulations. The Court was of the opinion,

however, that the partial dismissal

involved a controlling question of law as

to which there is substantial ground for

difference of opinion—namely, “[w]hether

individual action brought by Washington

and Three Rivers. 

7

In their complaint, appellants

based their claims on other portions of the

HUD regulations—specifically, 24 C.F.R.

§ 8.24(a) (addressing accessibility

requirements in existing, non-altered

housing), 24 C.F.R. § 8.25(c) (requiring

housing authorities to promulgate and

implement a “needs assessment” and

“transition plan”), and 24 C.F.R. § 8.27(a)

(requiring housing authorities to make

disabled persons aware that accessible

units are available and ensure that

accessible units are utilized by disabled

persons to the fullest extent possible). See

App. 18-19. Appellants appear to no

longer seek enforcement of these

regulations. See Appellants’ Br. 7-9. We

therefore only address the regulations

appellants pursue on appeal. 

8

 As we explain below, plaintiffs’

individual claims that the Housing

Authority denied them their right to access

under Section 504 still remain before the

District Court. 
6

Plaintiffs have a private right of action

against Defendants for enforcement of

regulations of the United States

Department of Housing and Urban

Development . . . as set forth in 24 C.F.R.

§§ 8.20-33 which mandate the number and

distribution of accessible housing units for

qualified handicapped individuals in

publicly funded housing developments,”

App. 42—and that an immediate appeal

may materially advance the ultimate

termination of the litigation. We therefore

exercise jurisdiction under 28 U.S.C. §

1292(b).

We review de novo the District

Court’s dismissal under Federal Rule of

Civil Procedure 12(b)(6) for failure to state

a claim. See, e.g., Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 374 n.7 (3d

Cir. 2002). “In evaluating the propriety of

dismissal, we accept all factual allegations

as true, construe the complaint in the light

most favorable to the plaintiff, and

determine whether, under any reasonable

reading of the complaint, the plaintiff may

be entitled to relief.” Id.

A.

Although we affirm the District

Court’s judgment, we do so based on

reasoning that differs somewhat from the

District Court’s. We begin with three

general propositions. First, Congress may

effect its legislative goals through various

means. “Congress sometimes legislates by

innuendo,” for example, “making

declarations of policy and indicating a

preference while requiring measures that,

though falling short of legislating its goals,

serve as a nudge in the preferred

directions.” Rosado v. Wyman, 397 U.S.

397, 413 (1970), quoted in Pennhurst State

Sch. & Hosp. v. Halderman, 451 U.S. 1,

19 (1981). Other times, Congress more

specifically creates “rights and

obligations.” Pennhurst, 451 U.S. at 15.

Second, Congress can create

various types of rights and obligations.

See, e.g., Granfinanciera, S.A. v.

Nordberg, 492 U.S. 33, 51-52 & n.8

(1989) (distinguishing between “public

rights” and “private rights” for purposes of

the Seventh Amendment’s right to trial by

jury). And one subset of rights that courts

have discerned in statutes is “personal

rights.”9 Personal rights inhere in the

individual; they are “individually

focused”; they create “individual

entitlements.” Non-personal rights, by

contrast, often have a “systemwide” or

“aggregate” focus; are defined in terms of

obligations of the person or entity

regulated rather than in terms of

entitlements of the individual protected;

are “not concerned with whether the needs

of any particular person have been

9

 Courts have been inconsistent in

the terms they use to refer to “personal

rights,” sometimes calling them

“individual rights,” “private rights,” or

simply “federal rights.” We use the term

“personal rights” throughout this opinion

to maintain the demarcation between

“personal rights” and “private rights of

action.” See Gonzaga Univ. v. Doe, 536

U.S. 273, 285 (2002) (using the term

“personal rights”). 
7

satisfied”; and regard “institutional policy

and practice, not individual instances” of

conduct. See Gonzaga Univ. v. Doe, 536

U.S. 273, 282, 288 (2002); Sandoval, 532

U.S. at 288-89; Blessing v. Freestone, 520

U.S. 329, 343-44 (1997).

To be sure,systemic legislation may

in fact benefit a group of individuals. That

does not mean that the legislation confers

a personal right on those individuals.

“[T]he question whether a statute is

intended to benefit particular plaintiffs is

quite different from the question whether

the statute in fact benefits those plaintiffs

. . . .” Pa. Pharmacists Ass’n v. Houstoun,

283 F.3d 531, 535 (3d Cir. 2002) (en

banc). Personal rights are those

intentionally and “unambiguously

conferred” through “rights-creating”

language. Gonzaga, 536 U.S. at 283, 284;

see Sabree ex rel. Sabree v. Richman, 367

F.3d 180, 187-88 (3d Cir. 2004).

Third, even when Congress creates

rights or obligations (including personal

rights), it does not necessarily follow that

private parties can enforce them or obtain

a direct remedy through the judicial

process. Id. at 284. It is often the case that

only the executive can enforce a federal

statute. Some statutes create rights in

individuals that are only enforceable by

agencies, see, e.g., Communications

Workers of America v. Beck, 487 U.S.

735, 742 (1988), or not enforceable at all,

see Alden v. Maine, 527 U.S. 706 (1999).

Of course, there are also many

statutorily created rights and obligations

that private parties may seek to enforce in

judicial proceedings. Congress may

expressly provide in a particular statute,

for example, that a party can bring suit

seeking enforcement. Determining

whether a statute explicitly provides a

private remedy involves a relatively

straightforward inquiry. A court must look

to the text of the statute to see if it states,

by its terms, that a private party may bring

suit to enforce it. See Hallstrom v.

Tillamook County, 493 U.S. 20, 25 (1989).

Congress explicitly provided a

private remedy in Title II of the Civil

Rights Act of 1964, for instance, a statute

that prohibits discrimination in places of

public accommodation on the basis of

“race, color, religion, or national origin.”

42 U.S.C. § 2000a. Title II provides that

when someone has or is about to

contravene its prohibition against

discrimination, “a civil action for

preventive relief, including an application

for a permanent or temporary injunction,

restraining order, or other order, may be

instituted by the person aggrieved.” 42

U.S.C. § 2000a-3(a). Similarly, many

environmental statutes contain express

private rights of action. See Hallstrom, 493

U.S. at 23 n.1 (citing statutes). 

Indeed, when Congress authorizes

an express right of action, it can choose to

allow private parties to enforce a range of

rights and obligations that Congress

creates. Some statutes create personal

rights, for example, and provide that

private parties may bring suit to enforce

those personal rights. See, e.g., 42 U.S.C.

§§ 2000e-2(a)(1), 2000e-5(f)(1) (Title VII

of the Civil Rights Act of 1964). Other
8

statutes create rights or obligations that do

not constitute personal rights—or impose

obligations in addition to personal

rights—and still expressly allow private

parties to enforce those rights or

obligations. See, e.g., 33 U.S.C. §§

1365(a), (g) (Clean Water Act). Indeed,

some statutes create private rights of

action—often called “citizen suit

provisions”—that extend plaintiffs’

capacity to bring suit to the bounds of

Article III standing. See Friends of Earth,

Inc. v. Laidlaw Environmental Services

(TOC), Inc., 528 U.S. 167 (2000) (Clean

Water Act).

Congress may also circumscribe a

private right of action that it creates. It

may limit, for example, the type of relief

available to a plaintiff. Compare 42 U.S.C.

§ 2000a-3(a) (limiting remedies available

for violations of Title II of the Civil Rights

Act of 1964 to injunctive relief) with 42

U.S.C. § 2000e-5(g) (injunctions available

to remedy violations of Title VII) and 42

U.S.C. § 1981a(a)(1) (damages available

to remedy violations of Title VII).

Similarly, Congress may create a private

right of action that allows plaintiffs only to

enforce a limited set of the rights or

obligations that a statute creates. See

Olmsted v. Pruce Life Ins. Co. of N.J., 283

F.3d 429, 433 (2d Cir. 2002) (observing

that in the Investment Company Act of

1940 Congress explicitly provided a

private right of action to enforce some

provisions of the statute but not others).

All this goes to saying that not all private

rights of action are created equally;

Congress may (and does) tailor rights of

action to suit various purposes and goals.

Many statutes, however, do not

contain provisions addressing either

whether private parties may maintain a

right of action or the scope of a right of

action a private party may maintain. When

that is the case, courts may still recognize

a private right of action in one or both of

two ways. First, a court may find an

implied right of action in the statute.

Second, Section 1983 may provide a

private right of action.10 These are

separate yet overlapping inquiries. See

Gonzaga, 536 U.S. at 283-84; W. Va.

Univ. Hosps., Inc. v. Casey, 885 F.2d 11,

10 Section 1983 provides:

Every person who, under

color of any statute,

ord inance, regulation,

custom, or usage, of any

State or Territory or the

District of Columbia,

subjects, or causes to be

subjected, any citizen of the

United States or other

person with in th e

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities

secured by the Constitution

and laws, shall be liable to

the party injured in an action

at law, suit in equity, or

other proper proceeding for

redress . . . .

42 U.S.C. § 1983. 
9

18 n.1 (3d Cir. 1989).

Congress’s intent in enacting a

statute is always the “focal point” in

determining whether courts should infer a

private right of action from the statute.

Thompson v. Thompson, 484 U.S. 174,

179 (1988). The four factors set forth in

Cort v. Ash, 422 U.S. 66 (1975) guide a

court’s review in discerning that intent.

Thompson, 484 U.S. at 179; see also

Hindes v. F.D.I.C., 137 F.3d 148, 169 (3d

Cir. 1998). Those factors are:

First, is the plaintiff “one of

the class for whose especial

benefit the statute was

enacted,”—that is, does the

statute create a federal right

in favor of the plaintiff?

Second, is there any

indication of legislative

intent, explicit or implicit,

either to create such a

remedy or to deny one?

Third, is it consistent with

the underlying purposes of

the legislative scheme to

imply such a remedy for the

plaintiff? [Fourth,] is the

cause of action one

traditionally relegated to

state law, in an area

basically the concern of the

States, so that it would be

inappropriate to infer a

cause of action based solely

on federal law?

Cort v. Ash, 422 U.S. at 78 (citations

omitted) (emphasis in original). “The first

two criteria are critical. If they do not point

toward a private right, the remaining two

‘cannot by themselves be a basis for

implying a right of action.’” Am. Tel. &

Tel. Co. v. M/V Cape Fear, 967 F.2d 864,

866 (3d Cir. 1992) (quoting Touche Ross

& Co. v. Redington, 442 U.S. 560, 580

(1979) (Brennan, J., concurring)). Put

succinctly, for an implied right of action to

exist, a statute must manifest Congress’s

intent to create (1) a personal right, and (2)

a private remedy. See Sandoval, 532 U.S.

at 286.

Determining whether there is a

private right of action under Section 1983

to enforce a federal statute requires only a

slightly different analysis. Section 1983

by its terms, of course, furnishes a private

remedy.11 The threshold question remains,

however, whether the federal statute

creates a personal right—i.e., a plaintiff

must show that “the statute creates

‘enforceable rights, privileges, or

immunities within the meaning of §

1983.’” Pa. Pharmacists Ass’n v.

Houstoun, 283 F.3d at 535 (quoting

11 Thus the second prong of Cort v.

Ash—whether the statute manifests

Congress’s intent to create a private

remedy, which is critical to implication

analysis—is irrelevant to the analysis

under Section 1983: “Plaintiffs suing

under § 1983 do not have the burden of

showing an intent to create a private

remedy because § 1983 generally supplies

a remedy for the vindication of rights

secured by federal statutes.” Gonzaga, 536

U.S. at 284.
10

Wright v. Roanoke Redevelopment &

Housing Auth., 479 U.S. 418, 423 (1987)).

Once the plaintiff establishes “the

existence of a federal right,” there arises a

rebuttable presumption that the right is

enforceable through the remedy of § 1983.

Pa. Pharmacists Ass’n v. Houstoun, 283

F.3d at 535. This presumption may be

rebutted by showing that “Congress

specifically foreclosed a remedy under §

1983, [either] expressly, by forbidding

recourse to § 1983 in the statute itself, or

impliedly, by creating a comprehensive

enforcement scheme that is incompatible

with individual enforcement under §

1983.” Powell v. Ridge, 189 F.3d 387, 401

(3d Cir. 1999) (internal quotations and

citations omitted), quoted in South

Camden, 274 F.3d at 780. 

Critically, the inquiry whether there

is a personal right under implied right of

action analysis and the question whether

there is a personal “enforceable right”

under Section 1983 are the same. As the

Supreme Court held in Gonzaga

University v. Doe: “[T]he initial [Section

1983] inquiry—determining whether a

statute confers any right at all—is no

different from the initial inquiry in an

implied right of action case, the express

purpose of which is to determine whether

or not the statute ‘confer[s] rights on a

particular class of persons.’” 536 U.S. at

285 (quoting California v. Sierra Club, 451

U.S. 287, 294 (1981)). The Court further

explained:

A court's role in discerning

whether personal rights exist

in the § 1983 context should

therefore not differ from its

role in discerning whether

personal rights exist in the

implied right of action

context. Both inquiries

s imply requir e a

determination as to whether

or not Congress intended to

confer individual rights

upon a cl ass o f

beneficiaries. Accordingly,

where the text and structure

of a statute provide no

indication that Congress

intends to create new

individual rights, there is no

basis for a private suit,

whether under § 1983 or

under an implied right of

action.

Id. at 285-86 (internal citations omitted).

Thus Congress’s creation of a personal

right is necessary to the existence of both

an implied right of action and a right of

action under Section 1983. 

To sum up, private parties may only

enforce personal rights through implied

rights of action or through Section 1983.

This distinguishes implied rights of action

and rights of action under Section 1983

from express rights of action. Only under

the latter may plaintiffs enforce more than

personal rights, when Congress expressly

so prescribes. See, e.g., Laidlaw, 528 U.S.

at 175-76, 185.

B.

That leads us to the issue of

whether a private right of action exists to
11

enforce regulations that an agency

promulgates pursuant to a federal statute.

Where Congress has created an express

right of action, a court must examine the

scope of the statute’s right of action—as

evidenced in the statute’s text—to

determine whether a plaintiff may

maintain a cause of action to enforce the

regulations. Congress may, for example,

explicitly establish a private right of action

to enforce regulations. Thus, the Resource

Conservation and Recovery Act of 1976

“permits individuals to commence an

action in district court to enforce waste

disposalregulations promulgated under the

Act.” Hallstrom, 493 U.S. at 22.12

The inquiry becomes more

complicated, however, when a private

party seeks to enforce a regulation an

agency promulgates pursuant to a statute

that does not contain an express right of

action; that is, when the statute gives rise

to a private remedy either through an

implied right of action or through Section

1983.

We addressed whether a plaintiff

could bring suit to enforce regulations

promulgated under a statute with an

implied right of action in Angelastro v.

Prudential-Bache Securities, Inc., 764 F.2d

939 (3d Cir. 1985). There, we articulated

a three-tiered analysis for determining

“whether to imply a private right of action

from an [agency] rule, and only indirectly

from the enabling statute.” Id. at 947. A

court must determine “(1) ‘whether the

agency rule is properly within the scope of

the enabling statute’; (2) ‘whether the

statute under which the rule was

promulgated properly permits the

implication of a private right of action’;

and (3) ‘whether implying a private right

of action will further the purpose of the

enabling statute.’” Polaroid Corp. v.

Disney, 862 F.2d 987, 994 (3d Cir. 1988)

(quoting Angelastro, 764 F.2d at 947); see

also Corestates Trust Fee Litig. v.

Corestates Bank, N.A., 39 F.3d 61, 67-68

(3d Cir. 1994) (applying Angelastro). 

The Supreme Court subsequently

addressed the issue in Alexander v.

Sandoval, which involved a regulation that

the Department of Justice (“DOJ”) had

promulgated under Title VI of the Civil

Rights Act of 1964. See 532 U.S. at 278.

Section 601 of Title VI prohibits recipients

of federal funding from intentionally

discriminating against individuals based

on race, color, or national origin. 42

U.S.C. § 2000d; see also Sandoval, 532

U.S. at 280-81. Section 602 of Title VI

authorizes federal agencies “to effectuate

the provisions of [Section 601] . . . by

issuing rules, regulations, or orders of

general applicability.” 42 U.S.C. § 2000d1. The DOJ promulgated a regulation

prohibiting recipients of federal funding

12 The statute provides, in relevant

part, that “any person may commence a

civil action on his own behalf . . . against

any person . . . who is alleged to be in

violation of any permit, standard,

regulation, condition, requirement,

prohibition, or order which has become

effective pursuant to this chapter.” 42

U.S.C. § 6972(a)(1)(A).
12

from taking actions that had a disparate

impact on racial groups. See 28 C.F.R. §

42.104(b)(2) (2000).

Since Section 601 prohibits only

intentional discrimination, the Court

explained, the DOJ’s disparate impact

regulation had to derive from Section 602.

Thus the plaintiffs did not have a right to

sue under Section 601’s private right of

action; “[t]hat right must come, if at all,

from the independent force of § 602.” Id.

at 286.13 The Court therefore analyzed

Section 602 to determine whether it could

infer a right of action under that provision.

In doing so, the Court found that Section

602 does not manifest Congress’s intent to

create a personal right, namely because

“rights-creating” language is absent from

the statute. Id. at 288. In addition, the

Court found that Section 602 does not

manifest an intent to create a private

remedy, mostly because the enforcement

system that Section 602 and Section 603

create suggest just the opposite. Id. at 289-

90.

Because no private right of action

exists to enforce Section 602, and the

DOJ’s regulation derived from that

provision of Title VI, the plaintiffs in

Sandoval did not have a right of action to

enforce the regulation. Id. at 290-91. The

Court noted, however, that private parties

may bring suit to enforce regulations that

validly construe a statute for which there

exists a private right of action. “A

Congress that intends the statute to be

enforced through a private cause of action

intends the authoritative interpretation of

the statute to be so enforced as well.” Id. at

284. Thus Sandoval is consistent with this

court’s jurisprudence in Angelastro and its

progeny. Angelastro, like Sandoval,

teaches that courts must look to the

enabling statute to find the source of a

right of action to enforce regulations,

because “an agency's rulemaking power

cannot exceed the authority granted to it by

Congress.” 764 F.2d at 947. A regulation

cannot “conjure up a private cause of

action that has not been authorized by

Congress. Agencies may play the

sorcerer’s apprentice but not the sorcerer

himself.” Sandoval, 532 U.S. at 291. 

Sandoval and Gonzaga do allow us

to refine our decision in Angelastro.

Sandoval and Gonzaga explain in no

uncertain terms that Congress’s statutory

creation of a personal right is a predicate

to finding an implied right of action in a

statute. The agency and its regulations do

not furnish an independent basis to

“conjure” an implied right of action. Thus,

when determining as a part of Angelastro’s

private right of action analysis “whether

the agency rule is properly within the

scope of the enabling statute,” a court is

really looking more precisely at whether

the agency rule is within the scope

of—i.e., construes, fleshes out, or fills in

the interstices of—a personal right that the

enabling statute creates.

Sandoval and Angelastro were

13 The Court concluded that it was

“beyond dispute” that an implied right of

action exists to enforce Section 601. 532

U.S. at 280.
13

implied right of action decisions.

Therefore, neither addressed whether

plaintiffs could enforce the regulations at

issue in those cases by way of a private

right of action under Section 1983. This

court subsequently examined that issue in

South Camden Citizens in Action v. New

Jersey Dep’t of Envtl. Prot., 274 F.3d 771

(3d Cir. 2001), cert. denied, 536 U.S. 939

(2002). There, we considered a disparate

impact regulation that the Environmental

Protection Agency had promulgated under

Section 602 of Title VI. We extended

Sandoval’s reasoning to the Section 1983

context and concluded that a regulation

cannot “create a right enforceable through

section 1983 where the alleged right does

not appear explicitly in the statute, but

only appears in the regulation.” Id. at 781.

A plaintiff can only enforce a regulation

under Section 1983 if the regulation

“merely define[s] the specific right that

Congress already ha[s] conferred through

the statute.” Id. at 783. In other words,

private parties cannot enforce regulations

under Section 1983 when the regulations

“do more than define or flesh out the

content of a specific right conferred upon

the plaintiffs” by the statute and instead

“give the statute a scope beyond that

Congress contemplated.” Id. at 790.

Under Section 1983, therefore, regulations

give rise to a right of action only insofar as

they construe a personal right that a statute

creates. Id.; see also Harris v. James 127

F.3d 993, 1008-09 (11th Cir. 1997).

With these principles in mind, we

turn to whether plaintiffs here can bring

suit to enforce the HUD regulations, either

vis-à-vis a right of action under the

Rehabilitation Act or Section 1983.

C.

To determine whether plaintiffs

have a private right of action under the

Rehabilitation Act to enforce the HUD

regulations, we must make a series of

inquiries. First, we examine the scope of

the private right of action that exists to

enforce Section 504. We conclude that

since Section 504's private right of action

is contiguous with Title VI’s—for which

an implied, not express, right of action

exists—plaintiffs can bring suit to enforce

personal rights that Section 504 creates,

and only such personal rights.

Second, we examine Section 504

and the pertinent HUD regulations to

determine whether the HUD regulations

construe any personal right that Section

504 creates. We ultimately conclude that

while the HUD regulations we examine

here may construe rights or obligations

that Section 504 creates, they do not

construe personal rights that Section 504

creates. We therefore find that the

Rehabilitation Act does not provide a

private right of action to enforce these

particular HUD regulations.

1.

The Rehabilitation Act, as

originally enacted, did not explicitly

provide a private right of action. In the

years following its enactment, however, a

number of courts (including this Court)

concluded that an implied right action

existed to enforce the statute. See Lloyd v.
14

Reg’l Transp. Auth., 548 F.2d 1277, 1280-

81 (7th Cir. 1977); Kapmeier v. Nyquist,

553 F.2d 296, 299 (2d Cir. 1977)

(following Lloyd); United Handicapped

Fed’n v. Andre, 558 F.2d 413, 415 (8th Cir.

1977) (following Lloyd); Leary v.

Crapsey, 566 F.2d 863, 865 (2d Cir. 1977);

Davis v. Southeastern Cmty. Coll., 574

F.2d 1158, 1159 (4th Cir. 1978) (following

Lloyd), rev’d on other grounds, 442 U.S.

397 (1979); NAACP v. Med. Ctr., Inc.,

599 F.2d 1247, 1258-59 (3d Cir. 1979)

(following Lloyd); Kling v. County of Los

Angeles, 633 F.2d 876, 878 (9th Cir. 1980)

(following Lloyd). Congress’s subsequent

amendments to the Rehabilitation Act

reinforce, indeed compel, the conclusion

that a private right of action exists to

enforce Section 504.

First, Congress added Section

505(a)(2) to the Rehabilitation Act in

1978. The provision provides that the

“remedies, procedures, and rights set forth

in title VI of the Civil Rights Act of 1964

shall be available to any person aggrieved

by any act or failure to act by any recipient

of Federal assistance or Federal provider

of such assistance under section 794 of

this title.” 29 U.S.C. § 794a(a)(2). At the

time, “the courts, including [the Supreme

Court], ha[d] unanimously concluded or

assumed that a private action may be

maintained under Title VI.” Regents of

Univ. of Cal. v. Bakke, 438 U.S. 265, 419

(1978) (Stevens, J., concurring in part and

dissenting in part). As the Supreme Court

has explained, 

Congress is presumed to be

aware of an administrative

or judicial interpretation of a

statute and to adopt that

interpretation when it

re-enacts a statute without

change. So too, where, as

here, Congress adopts a new

law incorporating sections

of a prior law, Congress

normally can be presumed

to have had knowledge of

the interpretation given to

the incorporated law, at least

insofar as it affects the new

statute.

Lorillard v. Pons, 434 U.S. 575, 580-81

(1978) (internal citations omitted). Thus

Congress, in essence, provided a private

right of action under Section 504 by

incorporating Title VI’s “remedies,

procedures, and rights” into the statute.

See also Barnes v. Gorman, 536 U.S. 181,

184-85 (2002); Bowers, 346 F.3d at 426

(“[A]lthough the remedy available to

persons aggrieved by violations of the

Rehabilitation Act . . . is at root an implied

one, [the statute], by cross-referencing

Title VI, which already had been

interpreted as creating a private right of

action, arguably [contains an] explicit

provision[] creating a private right of

action.”). 

Second, Congress confirmed that a

private right of action exists to enforce

Section 504 when it ratified the Supreme

Court’s decision in Cannon v. Univ. of

Chicago, 441 U.S. 677 (1979). In Cannon,

the Court held that a private right of action

exists to enforce Title IX of the Education

Amendments of 1972, because Title IX
15

“was patterned after Title VI” and “[i]n

1972 when Title IX was enacted, the

[parallel] language in Title VI had already

been construed as creating a private

remedy.” Id. at 694, 696. Like Title IX,

Section 504 was also patterned after Title

VI. See Med. Ctr., Inc., 599 F.2d at 1258.

And Congress subsequently enacted

Section 1003 of the Rehabilitation Act

Amendments of 1986, 42 U.S.C. § 2000d7, which the Supreme Court has

interpreted as “a validation of Cannon’s

holding.” Franklin v. Gwinnett County

Pub. Sch., 503 U.S. 60, 72 (1992); see also

Sandoval, 532 U.S. at 280.14

We note these circumstances not

because the parties dispute whether a

private right of action exists under Section

504. Rather, we do so because the source

of the private right of action speaks to its

scope. Section 504's private right of action

derives—through Congress’s use of

parallel language, incorporation of Title

VI’s remedies in the 1978 amendments,

and ratification of Cannon— from the

right of action that exists to enforce Title

VI. Consequently, “the remedies for

violations of . . . § 504 of the

Rehabilitation Act are coextensive with the

remedies available in a private cause of

action brought under Title VI.” Gorman,

536 U.S. at 185. 

The private right of action that

exists to enforce Title VI is, of course, an

implied right of action. See Sandoval, 532

U.S. at 280; Bowers, 346 F.3d at 428 n.21;

Med. Ctr., Inc., 599 F.2d at 1257-58.

Since, as we have explained, Sandoval

mandates that an implied right of action

can exist only where Congress creates a

personal right, a plaintiff can enforce only

personal rights through an implied right of

action. Because Section 504's

remedies—including the scope of its

private right of action—are coextensive

with Title VI’s, it follows that plaintiffs

can only bring suit to enforce personal

rights that Section 504 creates. 

Accordingly we conclude that

insofar as plaintiffs seek to enforce these

HUD regulations, they may do so only if

the regulations construe and define a

personal right that Section 504 creates;

“[a]gencies may play the sorcerer’s

apprentice but not the sorcerer himself.”

Sandoval, 532 U.S. at 291. We turn to the

relationship between Section 504 and the

HUD regulations at issue. 

2.

The Supreme Court has interpreted

Section 504 in two principal decisions:

Southeastern Cmty. Coll. v. Davis, 442

U.S. 397 (1979) and Alexander v. Choate,

469 U.S. 287 (1985). In Davis and

Choate, the Court articulated two

countervailing legislative concerns that

underlie Section 504 and guide courts’

interpretation of it: “(1) effectuation of the

statute’s objectives of assisting the

handicapped; and (2) the need to impose

14 Section 1003 “abrogated the

States’ Eleventh Amendment immunity

under Title IX, Title VI, § 504 of the

Rehabilitation Act of 1973, and the Age

Discrimination Act of 1975.” Franklin,

503 U.S. at 72. 
16

reasonable boundaries in accomplishing

this purpose.” Skinner, 881 F.2d at 1191

(citing Choate, 469 U.S. at 299). The

Court struck a balance between these

consideration by reading Section 504 as

requiring federal fund grantees to offer

“meaningful access” to programs they

administer. Meaningful access, as

explicated by the Court, does not require

that grantees “fundamentally alter” or

“substantially change” the nature of the

program. Moreover, grantees need not

make accommodations that would impose

undue financial or administrative burdens.

See Skinner, 881 F.2d at 1192; Nathanson

v. Med. Coll. of Pa., 926 F.2d 1368, 1383

(3d Cir. 1991). “Choate and Davis

therefore contemplate a continuum in

which some modest modifications may be

necessary to avoid discrimination but other

more substantial modifications are not

required by section 504.” Skinner, 881

F.2d at 1192. 

Despite courts’ efforts to interpret

Section 504 and determine what it requires

of federal grantees, the statute is

nonetheless still “‘ambiguous and lacking

in specifics.’” Disabled in Action of Pa. v.

Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987)

(quoting R.I. Handicapped Action Comm.

v. R.I. Public Transit Auth., 718 F.2d 490,

494 (1st Cir. 1983)); see also Skinner, 881

F.2d at 1193 (referring to the “difficulty in

determining precisely the extent of

accommodation mandated by section

504"). As a result, some courts have

“suggested that the relevant federal agency

and not the court has the chief

responsibility to determine what Section

504 requires of recipients of federal funds

in accommodating the needs of disabled

persons.” Sykes, 833 F.2d at 1117.

Section 504 does not, by its terms,

mandate the issuance of regulations to

implement the statute. See Helen L. v.

Didario, 46 F.3d 325, 330 n.9 (3d Cir.

1995). Section 504's legislative history

indicates, however, that Congress

contemplated the promulgation of such

regulations. See S. Rep. No. 93-1297, at

40 (1974), reprinted in 1974 U.S.C.C.A.N.

6390-91; see also Cmty. Television of S.

Cal. v. Gottfried, 459 U.S. 498, 509 (1983)

(“[S]ince § 504 was patterned after Title

VI of the Civil Rights Act of 1964, it was

understood that responsibility for

enforcing it, insofar as it regulated private

recipients of federal funds, would lie with

those agencies administering the federal

financial assistance programs.”). 

In 1976, President Ford issued

Executive Order No. 11,914, 41 Fed. Reg.

17,871 (Apr. 28, 1976), which required the

Department of Health, Education, and

Welfare (“HEW”) to “establish . . .

guidelines for determining what are

discriminatory practices, within the

meaning of section 504.” HEW issued

“coordination regulations” in 1978. See 43

Fed. Reg. 2132 (Jan. 13, 1978). 

The HEW regulations now appear

at 28 C.F.R. Pt. 41.15 After providing

15 HEW eventually became the

Department of Health and Human Services

(“HHS”), see 20 U.S.C. § 3508 (1979),

and in 1980 President Carter transferred
17

some general prescriptions against

discrimination in federally funded

programs and activities, see 28 C.F.R. §

41.51, the regulations specifically address

employment discrimination and program

accessibility. See C.F.R. §§ 41.52-58.16

The program a ccessibility

regulations provide: “No qualified

handicapped person shall, because a

recipient's facilities are inaccessible to or

unusable by handicapped persons, be

denied the benefits of, be excluded from

participation in, or otherwise be subjected

to discrimination under any program or

activity that receives or benefits from

federal financial assistance.” 28 C.F.R. §

41.56. The regulations’ more specific

program accessibility requirements go on

to distinguish between existing, newlyconstructed, and altered facilities. 

With respect to new construction,

the regulations require that new facilities

“be designed and constructed to be readily

accessible to and usable by handicapped

persons.” 28 CFR § 41.58(a). And

“[a]lterations to existing facilities [must],

to the maximum extent feasible, be

designed and constructed to be readily

accessible to and usable by handicapped

persons.” Id.

After HEW promulgated its

regulations, Congress amended Section

504. As we described above, Congress

enacted Section 505(a )(2) and

incorporated by reference Title VI’s

“remedies, procedures, and rights.” 29

U.S.C. § 794a(a)(2). Congress also added

text to Section 504 requiring federal

agencies to “promulgate such regulations

as may be necessary to carry out the

amendments to this section made by the

Rehabilitation, Comprehensive Services,

and Developmental Disabilities Act of

1978.” 29 U.S.C. § 794. 

The Supreme Court has interpreted

the 1978 amendments as “ma[king]

explicit” Congress’s theretofore implicit

understanding that agencies administering

federal financial assistance programs

wo uld enforce Section 504 by

promulgating regulations. Gottfried, 459

U.S. at 509. The Court has also

interpreted th e amendmen ts as

“incorporat[ing] the substance of the

HHS’s coordination and enforcement

authority to the Attorney General. See

Executive Order No. 12,250, 45 Fed. Reg.

72,995 (Nov. 2, 1980). The DOJ thereafter

adopted the HEW coordination regulations

without substantive changes. See Bragdon,

524 U.S. at 633. For the sake of internal

consistency, we refer to the regulations as

the “HEW regulations.”

16 Thus the regulations reflect the

concerns that motivated Congress to enact

Section 504. See Choate, 469 U.S. at 306-

07 (“In enacting the Rehabilitation Act and

in subsequent amendments, Congress . . .

focus[ed] on se veral substantive

areas—employment, education, and the

elimination of physical barriers to

access—in which it considered the societal

and personal costs of refusals to provide

meaningful access to the handicapped to

be particularly high.”).
18

[HEW] regulations into the statute.”

Consol. Rail Corp. v. Darrone, 465 U.S.

624, 634 n.15 (1984).17 As the Supreme

Court has repeatedly noted, the HEW

regulations deserve considerable deference

because they consti tute t h e

“contemporaneous regulations issued by

the agency responsible for implementing a

congressional enactment.” Id. at 634; see

also Bragdon v. Abbott, 524 U.S. 624, 632

(1998); Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 195 (2002)

(same); Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73, 82 n.4 (2002) (same). 

Importantly, the HEW regulations

require each agency to “issue, after notice

and opportunity for comment, a regulation

to implement section 504 with respect to

the programs and activities to which it

provides assistance.” 28 C.F.R. § 41.4(a);

see also 28 C.F.R. § 41.4(c)(2). HUD

promulgated Section 504 regulations,

which we described above, in 1988. 

That brings us to the question on

which this appeal hinges: What is the

precise relationship between the right of

action under Section 504 and the HUD

regulations? There is a universe of three

possibilities. First, the regulations may do

no more than construe personal rights that

Section 504 creates. Second, the

regulations may (instead or additionally)

construe non-personal rights or

obligations that Section 504 creates.

Third, the regulations may also create

distinct rights or obligations—either

personal or non-personal—in addition to

those that Section 504 creates.18 As we

have explained, only in the first instance

would plaintiffs have a private right of

action to enforce the regulations. That is

because Section 504's right of action only

allows plaintiffs to enforce personal rights

that the statute creates, and any regulations

17 As the Court explained, “the

responsible congressional committees

participated in their formulation, and both

these committees and Congress itself

endorsed the regulations in their final

form.” Darrone, 465 U.S. at 634.

18 We distinguish—as we did in

South Camden—between regulations that

“construe” a statute and regulations that

“create rights or obligations in addition to

those that the statute creates.” If Congress

duly authorizes an agency, it may

promulgate both types of regulations. See

1 Richard J. Pierce, Jr., Administrative

Law Treatise § 6.4, at 325-26 (4th ed.

2002); see also Chao v. Rothermel, 327

F.3d 223, 227 (3d Cir. 2003) (discussing

“interpretative” and “legislative” rules);

Am. Mining Cong. v. Mine Safety &

Health Admin., 995 F.2d 1106, 1108-09

(D.C. Cir. 1993) (same). Appellees

assume that Congress has so authorized

HUD under the Rehabilitation Act and

that the HUD regulations are valid. We

adopt that assumption for the purposes of

this decision. Nothing here is meant to

cast doubt on the validity of the HUD

regulations themselves. But the validity of

the regulations is a different question than

whether they are privately enforceable.

See South Camden, 274 F.3d at 787.
19

a plaintiff seeks to enforce must merely

“flesh out” those statutory personal rights.

Cf. South Camden, 274 F.3d at 790.

An analysis of theHUDregulations

here reveals that in any event they do not

articulate personal rights. 

At the outset, we observe that as a

general matter the HUD regulations are

directed at the Housing Authority’s

obligations as a grantee. Section 8.22, for

example, requires that new housing

projects “shall be designed and

constructed to be readily accessible to and

usable by individuals with handicaps.” 24

C.F.R. § 8.22(a). This mandate is not

couched in terms of any beneficiary’s

entitlement, but aims at the fund

recipient’s conduct. Id. The regulations,

to the extent they effectuate Section 504,

speak to the regulated state entity and do

not focus on the individual beneficiary.

Words “that focus on the person regulated

rather than individuals protected create ‘no

implication of an intent to confer rights on

a particular class of persons.’” Sandoval,

532 U.S. at 289 (quoting California v.

Sierra Club, 451 U.S. 287, 294 (1981)).

Thus the regulations fall short of the type

of individually-focused entitlement that

the Supreme Court has found critical in

determining whether Congress created

personal rights. See Gonzaga, 536 U.S. at

287; Richman, 367 F.3d at 187-88.

Equally important, the HUD

regulations plaintiffs seek to enforce relate

to “institutional policy and practice, not

individual instances” of discrimination.

Gonzaga, 536 U.S. at 288. So, for

instance, Section 8.22 provides that new

housing projects “shall be designed and

constructed to be readily accessible “ to

handicapped persons. 24 C.F.R. § 8.22(a).

And Section 8.26 requires that accessible

dwelling units “be distributed throughout

projects.” 24 C.F.R. § 8.26.

Similarly, the HUD rules have an

“‘aggregate focus’” and “are not

concerned with ‘whether the needs of any

particular person have been satisfied.’”

Gonzaga, 536 U.S. at 288 (quoting

Blessing, 520 U.S. at 343, 344). In this

regard, we emphasize that all but one of

the regulations plaintiffs seek to enforce

turn on the percentage of units that meet

accessibility requirements. Five percent of

the units in newly-constructed and

substantially-altered housing projects must

be accessible to those with ambulatory

disabilities, and two percent must be

accessible to those with hearing and visual

disabilities. See 24 U.S.C. §§ 8.22(b),

8.23(a). And when the Housing Authority

alters a unit, but not substantially, it must

make the unit accessible unless five

percent of the units in the housing project

are already accessible. See 24 U.S.C. §

8.23(b). 

Thus the Housing Authority can fail

to comply with the regulations and still not

deny access to a disabled individual.

Consider, for instance, if the Housing

Authority were to build a new 100-unit

housing facility and, although none of the

newly-built units were accessible to the

mobility impaired, the Housing Authority

had a policy of retrofitting every unit to be

accessible whenever an impaired
20

individual sought public housing. The

Housing Authority would provide

accessible housing to disabled individuals,

yet it would have failed to comply with the

regulations. We do not offer this example

to suggest that Section 504 does not

authorize the prophylactic measures the

regulations articulate. Rather, the example

demonstrates that the mandates the

regulations set forth are not individualoriented and have a systemwide focus. See

Blessing, 520 U.S. at 343-44 (treating

focus on systemwide compliance as

inconsistent with the creation of personal

rights).

Since the HUD regulations at issue

do not articulate personal rights, they of

course cannot construepersonal rights that

Section 504 creates; and whether the HUD

regulations otherwise construe general

obligations that Section 504 creates or

create distinct obligations is not

dispositive for private right of action

analysis. Thus, although we assume that

the HUD regulations properly effectuate

Section 504, we cannot conclude that the

regulations construe a personal right

within Section 504. As a result, plaintiffs

cannot enforce the regulations by way of

Section 504's private right of action.

In reaching our conclusion, we note

that while Sandoval drives our decision,

this case differs from Sandoval. In

Sandoval, plaintiffs could not sue to

enforce the disparate impact regulations

because no private right of action existed

at all to enforce the statutory provision

(Section 602 of Title VI) from which the

regulations derived. Here, a right of action

does exist to enforce the regulations’

enabling statute (Section 504). But the

right of action that exists under Section

504 only allows plaintiffs to enforce

personal rights that Section 504 creates.

And the HUD regulations do not construe

a personal right under Section 504.

Similarly, this case also differsfrom

recent cases applying Sandoval. In

Jackson v. Birmingham Board of

Education, 309 F.3d 1333 (11th Cir. 2002),

cert. granted, 124 S. Ct. 2834 (2004) and

Peters v. Jenney, 327 F.3d 307 (4th Cir.

2003) the Eleventh and Fourth Circuits

addressed whether plaintiffs had a right of

action to enforce anti-re taliation

regulations that agencies promulgated

under Section 601 of Title VI and the

parallel provision in Title IX of the

Education Amendments of 1972, 20

U.S.C. § 1681. The issue in those cases

was not whether the anti-retaliation

regulations articulated personal rights.

Rather, the issue was whether the

regulation articulated a personal right that

Congress created in Title VI and Title IX,

respectively. This is the very type of

question raised in Sandoval itself. The

Fourth Circuit held that the regulations’

“retaliation prohibition is an interpretation

of § 601's core antidiscrimination

mandate.” 327 F.3d at 316. The Eleventh

Circuit, in contrast, held that “[b]ecause

Congress has not created a right through

Title IX to redress harms resulting from

retaliation, [the Department of Education’s

regulation] may not be read to create one

either.” 309 F.3d at 1346. 

Our case is far different because it
21

involves regulations implementing

systemic rights and obligations. Whether

the HUD regulations construe Section 504

(or create new obligations), Section 504's

implied right of action only allows

plaintiffsto enforce personal rights that the

statute creates and not systemic

obligations. Thus, even if we were to

assume that Congress created the systemic

rights and obligations that the HUD

regulations articulate, plaintiffs may not

enforce those rights under Section 504

because they are not personal rights.

Finally, our decision is consistent

with past cases in which plaintiffs have

enforced regulations promulgated under

statutes (including Section 504) that did

not contain express rights of action. In

Disabled in Action of Pa. v. Sykes, 833

F.2d 1113 (3d Cir. 1987), for example, we

granted summary judgment to plaintiffs

seeking to enforce Department of

Transportation regulations promulgated

under Section 504. The regulations

required grantees to make transportation

facilities—in Sykes, a particular subway

station in Philadelphia—accessible when a

facility is substantially altered. Id. at 1119.

Those regulations required the City of

Philadelphia to make a common area

individually accessible; that is, an area that

any disabled individual had to access in

order to use the public facility. Thus the

regulations construed plaintiffs’ personal

right to access. See also Chaffin v. Kan.

State Fair Bd., 348 F.3d 850, 858 (10th

Cir. 2003) (finding cause of action to

enforce regulations promulgated under

Title II of the ADA). That is entirely in

accord with our decision here.

D.

The reasons that compel us to

conclude that plaintiffs cannot maintain

their suit to enforce the HUD regulations

as a private cause of action under Section

504 also compel us to conclude that they

cannot sue to enforce the regulations

under Section 1983. As we held in South

Camden, plaintiffs can only enforce under

Section 1983 personal rightsthatCongress

creates. Whether or not Congress created

the systemic rights that the HUD

regulations articulate, plaintiffs cannot

enforce them under Section 1983 because

they are not personal rights.

III.

For the reasons stated above, we

will affirm the District Court’s judgment.

We emphasize, as the defendants concede,

see Appellee’s Br. 26, 32, that plaintiffs

may continue to bring suit to enforce their

personal rights to access directly under

Section 504. Thus those claims, as well as

plaintiffs’ motion seeking class

certification, remain before the District

Court. We note that the District Court will

have to determine the extent to which any

of the HUD regulations may be relevant to

determining whether defendants are liable

under Section 504. See, e.g., Nathanson,

926 F.2d at 1386. Moreover, if plaintiffs

continue to seek class certification as well

as injunctive relief, the Court will have to

address several inter-connected issues

over the course of the proceedings. See

Armstrong v. Davis, 275 F.3d 849, 860

(9th Cir. 2001) (“[W]here a district court
22

grants system-wide injunctive relief, the

issues of standing, class certification, and

the propriety and scope of relief are often

intermingled.”). Finally, HUD retains its

independent authority—indeed, its

independent obligation—to enforce its

own regulations after many years of the

Housing Authority’s noncompliance.