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. e du/thir dc ir c uit_2001/292Filed December 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 01-2224 and 01-2296

SOUTH CAMDEN CITIZENS IN ACTION; GENEVA SANDERS; PAULINE WOODS; BARBARA PFEIFER; JULITA GILLIARD; OSCAR LISBOA; SHIRLEY RIOS; PHYLLIS HOLMES; GWEN PETERSON; LATOYA COOPER; JULIO LUGO

v.

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; ROBERT C. SHINN, JR., Commissioner of the NJ Dept. of Environmental Protection, in his official capacity

ST. LAWRENCE CEMENT CO., L.L.C., Intervenor in D.C.,

Appellant in No. 01-2224

SOUTH CAMDEN CITIZENS IN ACTION; GENEVA SANDERS; PAULINE WOODS; BARBARA PFEIFER; JULITA GILLIARD;
OSCAR LISBOA; SHIRLEY RIOS; PHYLLIS HOLMES; GWEN PETERSON; LATOYA COOPER; JULIO LUGO

v.

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; ROBERT C. SHINN, JR., Commissioner of the NJ Dept. of Environmental Protection, in his official capacity

ST. LAWRENCE CEMENT CO., L.L.C., Intervenor in D.C.,

New Jersey Department of Environmental Protection;Robert C. Shinn, Jr.,

Appellants in No. 01-2296

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 01-00702) District Judge: Honorable Stephen M. Orlofsky

Argued September 25, 2001

BEFORE: MCKEE, AMBRO, and GREENBERG, Circuit Judges

(Filed: December 17, 2001)

Olga D. Pomar (argued) Camden Regional Legal Services

745 Market Street Camden, NJ 08102

Jerome Balter Michael Churchill (argued)
Public Interest Law Center of Philadelphia

125 South 9th Street
Suite 700 Philadelphia, PA 19107

Luke W. Cole Center on Race, Poverty & The
Environment

631 Howard Street
Suite 330 San Francisco, CA 94114

Attorneys for appellees South Camden Citizens in Action, Geneva Sanders, Pauline Woods, Barbara Pfeifer, Julita Gilliard, Oscar Lisboa, Shirley Rios, Phyllis Holmes, Gwen Peterson, Latoya Cooper, Julio Lugo

2John J. Farmer, Jr.

Attorney General Stefanie A. Brand (argued) Deputy Attorney General 124 Halsey Street

P.O. Box 45029 Newark, NJ 07101 James M. Murphy
Patrick DeAlmeida Deputy Attorneys General Office of Attorney General of
New Jersey
Division of Law Richard J. Hughes Justice Complex

P.O. Box 112 Trenton, NJ 08625

Attorneys for appellants New Jersey Department of
Environmental Protection and
Robert C. Shinn Jr.

Brian S. Montag (argued)
Catherine A. Trinkle Pitney, Hardin, Kipp & Szuch 200 Campus Drive Florham Park, NJ 07932

Attorneys for appellant

St. Lawrence Cement Co.

Robin S. Conrad National Chamber Litigation
Center, Inc. 1615 H Street, N.W. Washington, D.C. 200062 Robert R. Gasaway Daryl Joseffer
Kirkland & Ellis 655 Fifteenth Street, N.W. Washington, D.C. 20036

Attorneys for amicus curiae

Chamber of Commerce of the
United States

3James M. Sheehan

General Counsel Commonwealth of Pennsylvania Suite 225 Main Capitol Building Harrisburg, PA 17120

Attorney for amicus curiae Commonwealth of Pennsylvania

John P. Krill, Jr. Linda J. Shorey
David R. Fine Kirkpatrick & Lockhart LLP
240 North Third Street Harrisburg, PA 17101

Attorneys for amici curiae
Robert C. Jubelirer and Matthew J.
Ryan

Frederick F. Fitchett, III Jill Manuel-Coughlin Cureton Caplan Hunt Scaramella & Clark, P.C.
950B Chester Avenue Delran, NJ 08075

Attorneys for amicus curiae South Jersey Port Corporation

Michael W. Steinberg Morgan, Lewis & Bockius LLP 1800 M Street, N.W. Washington, D.C. 20036

Attorneys for amici curiae
National Association of Manufacturers, American Chemistry Council, and Chemistry Industry Council of New Jersey

4Daniel J. Popeo

Richard A. Samp Washington Legal Foundation 2009 Massachusetts Ave., N.W. Washington, D.C. 20036

Attorneys for amici curiae Washington Legal Foundation,
National Black Chamber of Commerce, and Allied Educational
Foundation

Robert A. Matthews Lawrence J. Joseph
McKenna & Cuneo, L.L.P. 1900 K Street, N.W. Washington, D.C. 20006

Attorneys for amicus curiae American Road & Transportation
Builders Association

John J. Gibbons Lawrence S. Lustberg
Risa E. Kaufman Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza Newark, NJ 07102

Attorneys for amici curiae
American Civil Liberties Union of New Jersey Foundation and
American Civil Liberties Union of Pennsylvania

5Lawrence W. Lindsay

Justin T. Loughry Loughry and Lindsay, LLC

309 Market Street Camden, NJ 08102

Attorneys for amici curiae Bridge of Peace Community Church, Fettersville Neighborhood Task Force, Concerned Citizens of North Camden, The Greater Camden Unity Coalition, Leavenhouse, South Jersey Campaign for Peace and Justice, Gray Panthers of South Jersey, Dar Al Salaam/Africana Islamic Mission, New Jersey Environmental Federation, and Camden County Green Party

Thomas Henderson, Esq. Janette L. Wipper, Esq. Lawyers' Committee for Civil Rights

Under Law 1408 New York Avenue, N.W. Washington, D.C. 20005-2124

Robert J. Del Tufo

Ellen O'Connell Skadden, Arps, Slate, Meagher &

Flom LLP
One Newark Center - 18th Floor Newark, NJ 07102 Dennis Courtland Hayes
National Association for the

Advancement of Colored People 4801 Mount Hope Road Baltimore, MD 21215 Ronald Thompson
Garden State Bar Association Law Office of Ronald Thompson
213 South Harrison Street East Orange, NJ 07018

6Ken Kimerling

Margaret Fung Asian American Legal Defense
and Education Fund

99 Hudson Street - 12th Floor New York, NY 10013
Elaine R. Jones

Theodore M. Shaw
Norman J. Chachkin NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 Regina Waynes Joseph
Garden State Bar Association
320 South Harrison Street

16th Floor East Orange, NJ 07018-1333

Attorneys for amici curiae Lawyers' Committee for Civil Rights Under Law, National Association

for the Advancement of Colored People, NAACP Legal Defense & Educational Fund, Inc., Asian American Legal Defense and
Education Fund and Garden State
Bar Association

Bradford Mank University of Cincinnati College of Law
P.O. Box 210040 Cincinnati, OH 45221-0040

Attorney for amici curiae

Law Professors Concerned about
Environmental Justice

7Julie H. Hurwitz

Alma L. Lowry National Lawyers' Guild/

Maurice and Jane Sugar Law Center for
Economic and
Social Justice 645 Griswold, Suite 1800 Detroit, MI 48266 Denise Hoffner-Brodsky
The Sierra Club 85 Second Street, 2nd Floor San Francisco, CA 94105 Douglas W. Henkin
Michele Host Milbank, Tweed, Hadley & McCloy, LLP

1 Chase Manhattan Plaza New York, NY 10005-1413

Attorneys for amici curiae Center for Constitutional Rights,
Center for Law in the Public Interest, National Health Law Program, National Senior Citizens Law Center, New York City Coalition to End Lead Poisoning, New York Lawyers for the Public Interest, National Lawyers' Guild/Maurice and Jane Sugar

Law Center for Social and Economic Justice, Puerto Rican Legal Defense and Education Fund,
and the Sierra Club

8Michelle B. Alvarez

Mark A. Izeman
Eric A. Goldstein
Natural Resources Defense Council

40 West 20th Street New York, NY 10011

Attorneys for amici curiae
Natural Resources Defense Council
and Environmental Defense

OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. OVERVIEW

This matter comes on before this court on appeals by defendant-appellant New Jersey Department ofEnvironmental Protection ("NJDEP") and intervenorappellant St. Lawrence Cement Co., L.L.C. ("St. Law rence") from the district court's order granting preliminar y injunctive relief to plaintiffs, South Camden Citiz ens in
Action and ten residents of the Waterfront South neighborhood of Camden, New Jersey. Plaintiffs brou ght this action pursuant to 42 U.S.C. S 1983, as well a s on other bases, claiming NJDEP discriminated against t hem by issuing an air permit to St. Lawrence to operate a facility that would have an adverse disparate racial impact upon them in violation of Title VI of the Civil Rights A ct of 1964,

42 U.S.C. SS 2000d to 2000d-7.

Our opinion focuses on whether, following the Supre me Court's recent decision in Alexander v. Sandoval , 532 U.S. 275, 121 S.Ct. 1511 (2001), plaintiffs can maintain this action under section 1983 for disparate impact discrimination in violation of Title VI and its imp lementing regulations. For the reasons we set forth, we hold that an administrative regulation cannot create an interest
enforceable under section 1983 unless the interest already is implicit in the statute authorizing the regulati on, and that inasmuch as Title VI proscribes only intention al

9discrimination, the plaintiffs do not have a right enforceable

through a 1983 action under the EPA's disparate imp act discrimination regulations. Because the district co urt predicated its order granting injunctive relief on section 1983, we will reverse.

II. BACKGROUND AND PROCEDURAL HISTORY

A. Background

As we ultimately decide this appeal on a legal basi s and the district court's opinions stated the facts at l ength, we only need summarize the factual background of this case. Initially, we point out that the residents of Water front South are predominately minorities and the neighbor hood is disadvantaged environmentally.1 Waterfront South contains two Superfund sites, several contaminated and abandoned industrial sites, and many currently oper ating facilities, including chemical companies, waste fac ilities, food processing companies, automotive shops, and a petroleum coke transfer station. Moreover, NJDEP ha s granted permits for operation of a regional sewage treatment plant, a trash-to-steam incinerator and a cogeneration power plant in the neighborhood. As a re sult, Waterfront South, though only one of 23 Camden neighborhoods, hosts 20% of the city's contaminated sites and, on average, has more than twice the number of facilities with permits to emit air pollution than exist in the area encompassed within a typical New Jersey zip co de.

St. Lawrence supplies cement materials, primarily t o the ready-mix concrete industry. One aspect of St. Lawr ence's business is the processing of ground granulated bla st furnace slag ("GBFS"), a sand-like by-product of th e steelmaking industry, used in portland cement. In 1998, St. Lawrence wanted to open a GBFS grinding facility on a site in Camden owned by the South Jersey Port Corporatio n (the "Port"). In furtherance of this project, in Ma rch 1999 St. Lawrence signed a lease with the Port for the s ite and initiated discussions with NJDEP with respect to ob taining

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1. The Waterfront South community is comprised of 6 3% AfricanAmerican, 28.3% Hispanic, and 9% white residents.

10construction and operation permits for the facility
,

primarily focusing on the air permit that required minimizing the emission of PM10, i.e., particulate matter with a diameter of 10 microns or less. NJDEP requir ed St. Lawrence to conduct an air quality impact analysis for PM10 confirming that there would not be adverse hea lth impacts from operation of the facility and that St. Lawrence's operations complied with the National Am bient Air Quality Standards for PM10. St. Lawrence comple ted the analysis, and NJDEP accepted the result that th e facility's emissions would satisfy the established standards applicable to its operation.

On November 1, 1999, NJDEP notified St. Lawrence th at the permit process was "administratively complete." Accordingly, NJDEP permitted St. Lawrence to begin construction of the facility, which it did in late 1999. Then, on July 25, 2000, NJDEP gave notice of a public hea ring to be held on August 23, 2000, addressing St. Lawrence 's draft air permit. NJDEP stated, however, that it wo uld accept written comments on the draft permit until A ugust 31, 2000. Approximately 120 community members voice d their opinions and concerns about St. Lawrence's fa cility at the hearing, and several individuals provided NJDEP with
written comments.

Thereafter, NJDEP issued a 33-page "Hearing Officer 's Report Responses to Public Comments on the Draft Ai r Permit" for St. Lawrence. In the report, NJDEP addr essed the concerns raised by community members, including environmental equity/environmental justice, preexis ting local environmental issues, St. Lawrence's emission limits, the results of St. Lawrence's air quality impact an alysis, truck emission standards and carbon monoxide air qu ality evaluation results, and the protection of the healt h and safety of Waterfront South residents. Plaintiffs, h owever, filed an administrative complaint with the EPA and a request for a grievance hearing with NJDEP, as they alleged that NJDEP's permit review procedures violated Titl e VI of the Civil Rights Act of 1964 because the procedures did not include an analysis of the allegedly racially dispa rate adverse impact of the facility. NJDEP did not respo nd to the grievance hearing request, and on October 31, 2000, issued St. Lawrence's final air permit.

11B. Procedural History

On February 13, 2001, plaintiffs filed a complaint against NJDEP and NJDEP Commissioner Robert C. Shinn, Jr., alleging that they violated Title VI by intentional ly discriminating against them in violation of section 601, 42 U.S.C. S 2000d, by issuing the air quality permit a nd further asserting that the facility in operation un der the air permit would have an adverse disparate impact on th em in violation of section 602, 42 U.S.C. S 2000d-1. St. Lawrence subsequently intervened with the consent of the par ties. Following the submission of briefs and expert repor ts and oral argument, the district court issued an opinion and order on April 19, 2001, granting plaintiffs' reque st for a preliminary injunction. See South Camden Citizens i n Action v. N.J. Dep't of Envtl. Prot., 145 F. Supp. 2d 446, 505 (D.N.J. 2001) ("South Camden I"). In reaching its conclusions, the court found that section 602 and i ts implementing regulations contained an implied priva te right of action. Therefore, inasmuch as the court found t hat plaintiffs otherwise were entitled to relief based on their disparate impact claim, it remanded the matter to N JDEP for a Title VI analysis. See id. at 473-84, 505.

South Camden I, however, had a short shelf life. On April 24, 2001, the Supreme Court issued its decision in Sandoval, 532 U.S. 275, 121 S.Ct. 1511, holding tha t "[n]either as originally enacted nor as later amend ed does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under S 602. We therefore hold that no such right of acti on exists." Id. at ___, 121 S.Ct. at 1523 (footnote om itted). Obviously, Sandoval eliminated the basis for the co urt's injunction in South Camden I, an effect that led St

. Lawrence to move to dissolve the injunction. The di strict court, however, denied the motion, following which St. Lawrence again sought similar relief or a stay of t he injunction pending appeal. The district court then allowed plaintiffs to amend their complaint to add a claim to enforce section 602 through section 1983. The court also required supplemental briefing on plaintiffs' remai ning claims, namely, whether plaintiffs' intentional discrimination charge and/or their section 1983 cla im

12could provide an alternate basis for relief. On May 10,

2001, the court issued a supplemental opinion and o rder continuing the preliminary injunction based on plai ntiffs' section 1983 claim and again remanding the matter t o NJDEP for a Title VI analysis. See South Camden Cit izens in Action v. N.J. Dep't of Envtl. Prot., 145 F. Sup p. 2d 505 (D.N.J. 2001) (South Camden II). In reaching its re sult the court relied, inter alia, on Powell v. Ridge, 189 F .3d 387, 403 (3d Cir.), cert. denied, 528 U.S. 1046, 120 S.C t. 579 (1999), in which we held that there was a private r ight of action available to enforce a regulation implementi ng Title VI and that a disparate impact discrimination claim could
be maintained under section 1983 for a violation of a regulation promulgated pursuant to section 602. See South Camden II, 145 F. Supp. 2d at 520, 525, 543. Immedi ately thereafter, St. Lawrence unsuccessfully moved in th e district court for a stay of the preliminary injunc tion pending appeal.

St. Lawrence appealed to this court, and on May 15, 2001, filed with us a motion to suspend or, in the alternative, to modify the preliminary injunction p ending appeal, as well as a request for expedited review o f the appeal. On May 29, 2001, NJDEP requested a stay of the remand process from the district court, but on June 4, 2001, the district court denied that request. NJDEP then made the same application to this court on June 6, 2001, but we denied its motion on June 11, 2001. On June 12, 2001, however, we granted St. Lawrence's request fo r expedited review, and on June 15, 2001, we granted St. Lawrence's request to suspend the preliminary injun ction pending appeal.

III. DISCUSSION

As we have indicated, plaintiffs in their amended complaint sought an injunction under section 1983 preventing operation of St. Lawrence's GBFS grindin g facility.2 The district court found that plaintiffs stated a

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2. The district court had jurisdiction over this ma tter pursuant to 28 U.S.C. SS 1331, 1343, and we have jurisdiction purs uant to 28 U.S.C. S 1292(a)(1).

13claim under section 1983 against NJDEP for violatin g

section 602 and its implementing regulations by fai ling to consider the potentially adverse discriminatory imp act of permitting operation of the facility, and therefore enjoined its operation until NJDEP made such a determination . 3 We review the district court's order granting a prelim inary injunction for abuse of discretion, although we rev iew factual findings for clear error and questions of l aw de novo. See AT&T v. Winback and Conserve Program, Inc ., 42 F.3d 1421, 1426-27 (3d Cir. 1994).

We often have recognized that injunctive relief, particularly preliminary relief, is an "extraordina ry remedy . . . which should be granted only in limited circumstances." Id. (citation omitted). To obtain a preliminary injunction, the moving party must demonstrate: (1) the reasonable probability of even tual success in the litigation, and (2) that it will be irreparably injured if relief is not granted. Moreover, the dis trict court also should take into account, when relevant, (3) t he possibility of harm to other interested persons fro m the grant or denial of the injunction, and (4) the publ ic interest. See In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). Thus, "a failure to show a lik elihood of success or a failure to demonstrate irreparable inj ury must necessarily result in the denial of a preliminary i njunction."

Id. at 1143.

We first consider the probability of plaintiffs' su ccess in the litigation and, indeed, as we find that their c ase is legally insufficient, we will go no further. Natura lly, in view of Sandoval, the overarching legal issue on this ap peal is whether plaintiffs can advance a cause of action to enforce section 602 of Title VI and its implementing regula tions through section 1983. If they cannot, then the only basis on which they can obtain relief is to demonstrate t hat the NJDEP engaged in intentional discrimination, a poss ibility that we do not address on this appeal.

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3. The parties agree that the NJDEP receives grants of federal financial assistance so as to be subject to Title VI of the C ivil Rights Act of 1964, including sections 601 and 602.

14We start our legal analysis with a consideration of

Sandoval in which the Court held that a private rig ht of action is not available to enforce disparate impact regulations promulgated under Title VI,4 thus over ruling
Powell at least to the extent that it held to the c ontrary. See Sandoval, 532 U.S. at ___, 121 S. Ct. at 1523. In S andoval,

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4. We have set forth conditions that can lead to th e recognition of a private right of action not explicitly created as f ollows:

When a statute does not explicitly supply a private right of action, two occasionally intersecting avenues may be explored for a possible private right of enforcement. First, an impl ied private right of
action to enforce the statute may exist directly un der the statute in accordance with the four-factor analysis of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088 (1975). To establish an implied private right of action under Cort v. Ash, the plaintiff m ust satisfy the first requirement--that the statute creates a fede ral right in favor of

the plaintiff. The plaintiff must then satisfy t he three remaining Cort

v. Ash requirements relating to the existence o f a remedy--that Congress intended to create a remedy, that t he remedy is consistent with the legislative scheme, and that the ca use of action is not traditionally relegated to state law. In sum , under Cort v. Ash the plaintiff bears the burden of establishing n ot only the existence

of a right, but also the existence of an intended private remedy.

In appropriate cases, the second avenue for private enforcement of a federal statute is S 1983. In determining whether a private right

of action exists under S 1983, only two inquiri es are relevant: one, whether the statute alleged to have been vio lated creates a federal right in favor of the plaintiff, and the oth er, whether Congress

has foreclosed the remedy of private enforcement . TheS 1983 analysis intersects with the Cort v. Ash analysis ins ofar as the plaintiff

under both analyses must establish the creation of a federal right. With respect to the existence of a remedy, howeve r, the contrast between the two analyses is stark. Under Cort v. Ash the plaintiff must establish that Congress intended the remedy. UnderS 1983 analysis, on the other hand, once a federal right is established,

theexistence of a remedy is presumed because S 1983 itself provides

the authorization for private enforcement. The b urden is on the defendant to establish that Congress intende d to foreclose private

enforcement.

W. Va. Univ. Hosp. v. Casey, 885 F.2d 11, 18 n.1 (3 d Cir. 1989). In Sandoval, the Court focused exclusively on whether Congress had created a federal right in favor of the plaintiff, the same essential question at issue here.

15the Court considered a challenge to the Alabama

Department of Public Safety's official policy of ad ministering its driver's license examination only in English as violative of Title VI and its implementing regulations. See i d. at ___, 121 S.Ct. at 1515. The Court held that "[n]either a s originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated underS 60 2. We therefore hold that no such right of action exists. " Id. at ___, 121 S.Ct. at 1523. *In reaching its result in Sandoval, the Court began by listing three aspects of Title V I that "must be taken as given": (1) private individuals m ay sue to enforce section 601 of Title VI and obtain both inj unctive relief and damages; (2) section 601 prohibits only intentional discrimination; and (3) for the purpose s of the case, regulations promulgated pursuant to section 6 02 validly may proscribe disparate impact discriminati on even though it is permissible under section 601. See id. at ___, 121 S.Ct. at 1516-17. Then, the Court considered wh ether section 602 regulations conferred a private right o f action, looking to its precedent interpreting Title VI and to the text and structure of Title VI. See id. at ___, 121 S.Ct . at 1519. First, the Court noted, based on its analysis of it s holdings in its prior Title VI cases, that it previously had not held that there is such a private right of action under section 602. See id. at ___, 121 S.Ct. at 1517-21 (citing L au v. Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974) (holding that section 601 prohibits disparate impact discriminati on); Cannon v. Univ. of Chicago, 441 U.S. 677, 694, 99 S .Ct. 1946, 1956 (1979) (holding that private right of ac tion exists to enforce Title IX, which is patterned afte r Title VI); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 28 7, 98 S.Ct. 2733, 2746 (1978) (holding, contrary to Lau, that section 601 proscribes only those classifications t hat would violate the Equal Protection Clause of the Fifth Am endment, namely intentional discrimination); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221 (1983) (affirming Bakke's holding that section 601 prohibi ts only intentional discrimination); Alexander v. Choate , 469 U.S. 287, 293, 105 S.Ct. 712, 716 (1985) (same)).

The Court then found that section 602's text and structure did not evince an intent to create a priv ate right

16of action and that the regulations alone were insuf ficient to

create a private right of action. See id. at ___, 1 21 S.Ct. at 1520-22 ("Language in a regulation may invoke a pri vate right of action that Congress through statutory tex t created, but it may not create a right that Congress has not ."). Therefore, the Court held that a private right of a ction was not available to enforce regulations promulgated un der section 602. See id. at ___, 121 S.Ct. at 1523. How ever, inasmuch as the plaintiffs in Sandoval did not adva nce a cause of action under section 1983 to enforce Title VI and its implementing regulations, the majority did not consider
whether such an action is available.5

Resolution of this issue, therefore, requires us to examine whether disparate impact regulations promulgated pursuant to section 602 may, and if so do, create a right that may be enforced through a section 1983 action.

Section 1983 provides, in relevant part:

Every person who, under color of any statute
, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, su bjects, or causes to be subjected, any citizen of the U nited States or other person within the jurisdiction ther eof to the deprivation of any rights, privileges, or im munities secured by the Constitution and laws, shall be liable to

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5. In his dissent, Justice Stevens stated the follo wing with regard to
section 1983:

[T]o the extent that the majority denies rel ief to the respondents merely because they neglected to mention 42 U.S.C.S 1983 in framing their Title VI claim, this case is s omething of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference S 1983

to obtain relief; indeed, the plaintiffs in thi s case (or other similarly situated individuals) presumably retain the option of rechallenging Alabama's English-only policy in a complaint that invokes S 1983 even after today's decision.

Sandoval, 532 U.S. at ___, 121 S.Ct. at 1527 (Steve ns, J., dissenting). The majority does not address the dissent's stateme nt. Nevertheless, for the reasons that follow, we conclude that the major ity's opinion and Supreme Court precedent do not permit the bringing of the section 1983 action that Justice Stevens suggested is available.17the party injured in any action at law, suit in equity, or

other proper proceeding for redress.

Therefore, section 1983 provides a remedy for depri vation under color of state law of "any rights . . . secur ed by the Constitution and laws." In Maine v. Thiboutot , 448 U.S. 1, 6-8, 100 S.Ct. 2504, 2505-06 (1980), the Supreme Co urt interpreted this language and held that causes of a ction
under section 1983 are not limited to claims based on constitutional or equal rights violations. Rather, certain rights created under federal statutes are enforceab le through section 1983 as well. This rule, however, i s limited by two well-recognized exceptions. First, a section 1983 remedy is not available "where Congress has foreclo sed
such enforcement of the statute in the enactment it self." Wright v. City of Roanoke Redevelopment & Hous. Aut h., 479 U.S. 418, 423, 107 S.Ct. 766, 770 (1987). Secon d, the remedy is not available "where the statute did not create enforceable rights, privileges, or immunities withi n the meaning of S 1983." Id.

The Supreme Court has established a three-part test to
determine whether a federal statute creates an indi vidual right enforceable through a section 1983 action:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, t he plaintiff must demonstrate that the right assertedly p rotected by the statute is not so `vague and amorphou s' that its enforcement would strain judicial competence . Third, the statute must unambiguously impose a bind ing obligation on the States. In other words, th e provision giving rise to the asserted right must be co uched in mandatory, rather than precatory, terms.

Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S. Ct. 1353, 1359-60 (1997). If a plaintiff satisfies each of these elements, and therefore establishes and identifies a federal right that allegedly has been violated, a rebuttabl e presumption that the right is enforceable through section 1983 arises. See id. at 341, 117 S.Ct. at 1 360; see also Banks v. Dallas Housing Auth., 271 F.3d 605, 2 001 WL 1285391, at *4 (5th Cir. Oct. 24, 2001). We have fo und two circumstances, which in harmony with Wright, are

18sufficient to rebut this presumption: where "Congre ss

specifically foreclosed a remedy under S 1983,[eith er] expressly, by forbidding recourse to S 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with indivi dual enforcement under S 1983." Powell, 189 F.3d at 401 (citations omitted). In the former case, the plaint iff 's claim must fail. In the latter case, however, the burden shifts to the defendant to "make the difficult showing that a llowing a S 1983 action to go forward in these circumstance s `would be inconsistent with Congress' carefully tailored s cheme.' " Id. (quoting Blessing, 520 U.S. at 346, 117 S.Ct. a t 1362).

Here, plaintiffs seek to enforce a prohibition on d isparate impact discrimination that does not appear explicit ly in Title VI, but rather is set forth in EPA regulation s. They contend that the regulations are a valid interpreta tion of Title VI.6 Section 601 of Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any progra m or activity receiving Federal financial assista nce.

42 U.S.C. S 2000d. Section 602 provides, in relevan t part:

Each Federal department and agency which is empowered to extend Federal financial assist ance to any program or activity, by way of grant, lo an, or contract other than a contract of insurance or guaranty, is authorized and directed to effe ctuate the provisions of section 2000d [Section 601] of this title with respect to such program or activity by issuing rules, regulations, or orders of general app licability
which shall be consistent with achievement o f the

___________________________________________________ ______________

6. We assume without deciding that the regulations are valid, as neither NJDEP nor St. Lawrence timely challenged them in th e district court and our analysis does not turn on their validity. That being said, like the Court stated in Sandoval, we observe that there doe s seem to be considerable tension between the section 602 regula tions proscribing activities that have a disparate impact and section 601's limitation to interdiction only of intentionally discriminatory a ctivities. See Sandoval, 532 U.S. at ___, 121 S.Ct. at 1517.

19objectives of the statute authorizing financ ial

assistance in connection with which the acti on is

taken.

Id. S 2000d-1. Finally, the EPA regulations at issu e provide:

No person shall be excluded from participati on in, be denied the benefits of, or be subjected t o discrimination under any program or activity receiving EPA assistance on the basis of race, color, [or] national origin . . . .

. . .

A recipient shall not use criteria or metho ds of administering its program which have the eff ect of subjecting individuals to discrimination bec ause of their race, color, national origin, or sex, or have the effect of defeating or substantially impairi ng accomplishment of the objectives of the prog ram with respect to individuals of a particular race, color, national origin, or sex.

40 C.F.R. SS 7.30 & 7.35(b). According to plaintiff s, these statutory provisions and their complementary regula tions prohibiting discriminatory impacts in administering programs create a federal right enforceable through section

1983.

This contention raises the question of whether a regulation can create a right enforceable through s ection 1983 where the alleged right does not appear explic itly in the statute, but only appears in the regulation. Th e district court found that the Supreme Court, as well as this court, have found that a regulation may create an enforcea ble right, see South Camden II, 145 F. Supp. 2d at 526- 27 (citing Wright, 479 U.S. at 418, 107 S.Ct. at 766; W. Va. Univ. Hosp. v. Casey, 885 F.2d 11, 18 (3d Cir. 1989 ); Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984)), an d therefore concluded that the three-prong Blessing t est applied to determine whether the EPA regulations in deed created a federal right. See id. at 529. For the re asons that follow, however, we are satisfied that the district court's conclusion was erroneous. Thus, as the plaintiffs d o not advance any federal right to enforce, the district court erred in granting relief on the basis of section 1983.

20In considering whether a regulation in itself can e stablish

a right enforceable under section 1983, we initiall y point out that a majority of the Supreme Court never has stated expressly that a valid regulation can create such a right. In Guardians Ass'n Justice Stevens, joined by Justices Brennan and Blackmun, wrote: "[I]t is clear that th e S 1983 remedy is intended to redress the deprivation of ri ghts secured by all valid federal laws, including statut es and regulations having the force of law." See Guardians Ass'n, 463 U.S. at 638, 103 S.Ct. at 3251. According to th em, the rationale of Thiboutot applied equally to statutes and administrative regulations having the force of law. See id. at 638 n.6, 103 S.Ct. at 3251 n.6. But later in Wright , four Justices expressed the contrary view. See Wright , 479 U.S. at 437-38, 107 S.Ct. at 777-78 (O'Connor, J., disse nting). Justice O'Connor, joined by Chief Justice Rehnquist
, Justice Powell, and Justice Scalia, wrote in dissen t:

In the absence of any indication in the lang uage, legislative history, or administrative inter pretation of the Brooke Amendment that Congress intended to create an enforceable right to utilities, it is necessary to ask whether administrative regulations alone could create such a right. This is a troubling iss ue not briefed by the parties, and I do not attempt to resolve it here. The Court's questionable reasoning that, because for four years HUD gave somewhat les s discretion to the PHA's in setting reasonabl e utilities allowances, HUD understood Congress to have required enforceable utility standards, apparently al lows it to sidestep the question. I am concerned, howev er, that lurking behind the Court's analysis may be t he view that, once it has been found that a statute creates some enforceable right, any regulation adopt ed within the purview of the statute creates rights en forceable in federal courts, regardless of whether Congre ss or the promulgating agency ever contemplated such a result. Thus, HUD's frequently changing views on how best to administer the provision of utilities to pub lic housing tenants becomes the focal point for the crea tion and extinguishment of federal `rights.' Such a r esult, where determination of S 1983 `rights' has been un leashed

21from any connection to congressional intent, is

troubling indeed.

Id.

Notwithstanding the foregoing cautionary language, the district court relied on Wright in holding that fed eral regulations may create rights enforceable through s ection 1983. In Wright, the plaintiffs alleged the housing authority violated a federal statute imposing a rent ceiling and the statute's implementing regulations which required p ublic housing authorities to include a reasonable utility allowance in tenants' rent. See id. at 419, 107 S.C t. at 768. The defendants argued that neither the statute nor the regulations gave the tenants a right enforceable th rough section 1983. See id. at 429-30, 107 S.Ct. at 773. In response, the Court stated:

We perceive little substance in this claim. The Brooke

Amendment could not be clearer: as further a mended in 1981, tenants could be charged as rent no more and no less than 30 percent of their income. Thi s was a mandatory limitation focusing on the individ ual family
and its income. The intent to benefit tenant s is undeniable. Nor is there any question that H UD interim regulations, in effect when this sui t began, expressly required that a `reasonable' amoun t for
utilities be included in rent that a PHA was allowed to charge, an interpretation to which HUD has a dhered both before and after the adoption of the Br ooke
Amendment. HUD's view is entitled to deferen ce as a valid interpretation of the statute, and Con gress in the course of amending that provision, has not d isagreed
with it.

Respondent nevertheless asserts that the pr ovision
for a `reasonable' allowance for utilities i s too vague and amorphous to confer on tenants an enforc eable `right' within the meaning of S 1983 and tha t the whole matter of utility allowances must be left to the discretion of the PHA, subject to supervisio n by HUD. The regulations, however, defining the statu tory concept of `rent' as including utilities, ha ve the force of law . . ., they specifically set out guideli nes that the

22PHAs were to follow in establishing utility allowances,

and they require notice to tenants and an op portunity to comment on proposed allowances. In our vi ew, the benefits Congress intended to confer on tena nts are sufficiently specific and definite to qualif y as enforceable rights under Pennhurst [State Sc hool & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531 (1981)] and S 1983, rights that are not, as respondent suggests, beyond the competence of the judic iary to

enforce.

Id. at 430-32, 107 S.Ct. at 773-75 (footnotes omitt ed).7

As we have indicated, the district court held, and the appellees argue here, that Wright stands for the pr oposition that valid federal regulations may create rights en forceable under section 1983, to which the Blessing analysis applies. Therefore, the appellees argue that because the EPA 's section 602 regulations are valid and enforceable, we should apply the Blessing analysis and conclude tha t the regulations create rights enforceable through secti on 1983.

The district court's holding was, however, erroneou s because, as the foregoing quotation from the Court' s opinion makes clear, Wright dealt with an issue tha t differs from that presented in the district court and here. There, the Court, in finding the statute and its implement ing regulations created a right enforceable through sec tion 1983, focused on tying the right to a reasonable ut ility allowance to Congress' intent to create federal rig hts through the statute. The Court looked first to the statutory provision creating the ceiling on tenants' rent, de scribing it as "a mandatory limitation focusing on the individu al family and its income." Id. at 430, 107 S.Ct. at 773-74. F urther, it stated that Congress' intent with regard to the statute to benefit tenants was "undeniable." Id. at 430, 107 S .Ct. at 774. Having reached this conclusion, it turned to t he regulations and found that they were entitled to de ference

___________________________________________________ ______________

7. The Court of Appeals for the Fifth Circuit recen tly in Banks v. Dallas Housing Authority, 271 F.3d 605, 2001 WL 1285391, a t *4, indicated that a statutory obligation in 42 U.S.C. S 1437f(e) (repealed) to provide "decent, safe, and sanitary" housing was too vague to be judicially enforceable under section 1983, distinguishing Wrig ht.

23as valid administrative interpretations of the stat ute. Id.,

107 S.Ct. at 774. It afforded this deference, howev er, after having found that Congress had conferred upon plain tiffs that right by statute. Id., 107 S.Ct. at 773.

Clearly, therefore, the regulation at issue in Wrig ht merely defined the specific right that Congress alr eady had conferred through the statute. See id. at 430 n.11 & 431, 107 S.Ct. at 774 & n.11 (rejecting "respondent's ar gument that the Brooke Amendment's rent ceiling applies on ly to the charge for shelter and that the HUD definition of rent as including a reasonable charge for utilities is n ot authorized by the statute" and stating regulations "defin[ed] the statutory concept of `rent' "). There should be no doubt on this point, for the Court plainly stated that"th e benefits Congress intended to confer on tenants are sufficie ntly specific and definite to qualify as enforceable rig hts under Pennhurst and S 1983, rights that are not, as respo ndent suggests, beyond the competence of the judiciary to enforce." Id. at 432, 107 S.Ct. at 774-75 (emphasis added). Therefore, the Wright Court located the alleged rig ht in the statutory provision and then relied upon the implem enting regulations to define and interpret that right. Cri tically, as pertains to this case, Wright does not hold that a regulation alone--i.e., where the alleged right does not appea r explicitly in the statute, but only appears in the regulation --may create an enforceable federal right. It is th us manifest that, inasmuch as the disparate impact regulations go far beyond the intentional discrimin ation interdiction in section 601, the district court's r eliance on Wright was misplaced.

Similarly, although also relied upon by the distric t court, none of our opinions in Alexander, Casey , or Powel l nor that of the Court of Appeals for the Ninth Circuit in Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995), ju stifies the district court's conclusion that valid regulations may create rights enforceable under section 1983. In Alexander , we held that federal regulations governing the adminis tration of the Supplemental Food Program for Women, Infants and Children created rights enforceable under section 1 983 for recipients of program assistance. See Alexander , 7 50 F.2d at 261. But the right enforceable through section 1 983,

24namely notice of the right to a fair hearing upon

termination of benefits, could be traced to and was consistent with the statute as it provided for cash grants to local agencies to enable them to carry out health a nd nutrition programs to make supplemental food availa ble to pregnant and lactating women and infants. According ly, the statute created a right to supplemental food for th ose who qualified. See id. at 253 & n.3.

We recognize that in Alexander we never expressly identified the right as stemming from the statute. Nevertheless we did not expressly analyze the quest ion of whether a federal regulation could create an enforc eable section 1983 right. Instead, after stating the gene ral rule that violations of federal statutes may be actionab le under section 1983 except where Congress has foreclosed s ection

1983 enforcement or the statute does not create enforceable rights, we simply concluded that the re gulation created an enforceable right. See id. at 259.

But Alexander did not involve a circumstance in whi ch the regulations attempted to create a federal right beyond any that Congress intended to create in enacting th e statute. Furthermore, we decided Alexander in 1984, well before the Supreme Court refined its analysis to fo cus directly on Congress' intent to create enforceable rights and to confine its holdings to the limits of that inten t. See Blessing, 520 U.S. at 341, 117 S.Ct. at 1360-61 (concentrating on Congress' intent to create rights in statute enforceable through section 1983); Suter v. Artist M., 503 U.S. 347, 357, 112 S.Ct. 1360, 1367 (1992) (sam e); Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 510, 110 S .Ct. 2510, 2517-18 (1990) (same); Golden State Transit C orp. v. City of Los Angeles, 493 U.S. 103, 110-11, 110 S.Ct . 444, 451 (1989) (same); Wright, 479 U.S. at 430, 107 S.C t. at 774 (focusing on Congress' intent to create rights in statute enforceable through section 1983, and findi ng implementing regulation defined right). Therefore, Alexander is distinguishable from this case.

So, too, is Casey. There, we stated, citing only Wr ight and Alexander, that "valid federal regulations as well as federal statutes may create rights enforceable under sectio n 1983." Casey, 885 F.2d at 18. The issue in Casey , however , was

25only whether the federal Medicaid statute, not its

implementing regulations, created a federal right enforceable through section 1983. See id. at 17 ("T he threshold issue in this case is whether [the plaint iff] can assert a cause of action against the defendant stat e officials under 42 U.S.C. S 1983 for alleged violation of the federal medicaid statute."). Therefore, our broader stateme nt was dicta not binding here.

Plaintiffs place much reliance on Powell v. Ridge, 189 F.3d at 403, in which we indicated that a disparate impact
discrimination claim could be maintained under sect ion 1983 for a violation of a regulation promulgated pu rsuant to section 602. There, the plaintiffs brought a Tit le VI action against the Commonwealth of Pennsylvania, challengi ng its practices in funding public education on the ground that they had a racially discriminatory effect. See id. at 391. On appeal, we considered, among other things, whether there was a private right of action available to enforce a regulation implementing Title VI, as well as whethe r a plaintiff can maintain a claim under section 1983 f or a violation of that regulation. See id. We answered b oth questions in the affirmative, stating that section 602 and the Department of Education regulation at issue pro vided a private right of action, and that plaintiffs also c ould utilize section 1983 to redress defendants' alleged violati on of the statute and regulation. See id. at 399-400, 403.

Powell, however, should not be overread. Initially, it held that section 602 and the regulations under it inclu ded a private right of action. Moreover, in then authoriz ing the section 1983 action we merely rejected three specif ic arguments: (1) that the individual defendants were not "persons" amenable to suit under section 1983; 8 (2 ) that Title VI possessed a comprehensive enforcement sche me that precluded the assertion of the section 1983 cl aim; and (3) that our precedents barring certain claims unde r Title IX
of the Education Amendments of 1972 should have bar red the action in Powell as well. See Powell , 189 F.3d at 400- 03. But Powell did not analyze the foundation issue that is

___________________________________________________ ______________

8. On appeal, the defendants did not advance this a rgument even though the district court had relied on it. See Powell , 1 89 F.3d at 401.

26central here, i.e., whether a regulation in itself can create a

right enforceable under section 1983. In Powell , w e seemed simply to assume for section 1983 purposes that it could. See id. at 401 ("Once a plaintiff has identified a federal right that has allegedly been violated, there arise s a `rebuttable presumption that the right is enforceab le under S 1983.' "). Thus, while plaintiffs rely heavily on Powell, that reliance is misplaced, and, accordingly, quite asid e from the impact of Sandoval, Powell could not control the ou tcome
here.9

Similarly, the district court's reliance on Buckley was misplaced. The issue there was whether the Federal Aid in Sport Fish Restoration Act and its interpretive reg ulations created an enforceable federal statutory right unde r section 1983. See Buckley, 66 F.3d at 189-90. The court, af ter analyzing the relevant statutory and regulatory lan guage, held that it did. See id. at 193. Inasmuch as the c ourt stated expressly that it was determining whether th e federal statute and its implementing regulations conferred a section 1983 right and not whether such a right aro se under the implementing regulations alone, Buckley i s distinguishable. See also Powell, 189 F.3d at 401; Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 699 (3d Cir . 1996) ("[The] cause of action arises strictly under[the s tatutory provision.] Regulation S 966.57(b) merely interpret s that section."); Doe v. District of Columbia, 93 F.3d 86 1, 867

___________________________________________________ ______________

9. It cannot be argued plausibly that by holding in Powell that there was a private right of action under Title VI, we necess arily determined that the plaintiffs in Powell had a right enforceable un der section 1983. Even if it could be so argued, however, the aspect of th e opinion holding that there is a private right of action under Title VI d id not survive Sandoval
and thus the 1983 claim would not survive either. I n any event, the
district court in South Camden II did not determine that the plaintiffs had a right enforceable under section 1983 merely b ecause in Powell we had determined that there was a private right of ac tion enforceable under Title VI. Rather, the court in South Camden I I made an independent examination of whether a section 1983 a ction was available, just as we do. Indeed, it hardly could have avoided making that analysis as it cited favorably Santiago v. Hernandez, 53 F. Supp. 2d 264, 268 (E.D.N.Y. 1999), for the point that "[i]t is concep tually possible for plaintiff who is the intended beneficiary of a stat ute to have a S 1983 action but not a private right of action, or vice v ersa . . . ."

27(D.C. Cir. 1996) (analyzing both statute and its

accompanying regulations in determining whether enforceable section 1983 right existed); Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir. 1995) (same); City of Chicago v. Lindley, 66 F.3d 819, 827 (7th Cir.1995) (same); Martinez v. Wilson, 32 F.3d 1415, 1421 & n.4 (9th Cir. 1994) (same); Howe v. Ellenbecker, 8 F.3d 1258, 1263 (8th Cir. 19 93) (same), overruled by Blessing, 520 U.S. at 348, 117 S.Ct. at 1363; Albiston v. Me. Comm'r of Human Servs., 7 F.3 d 258, 265 (1st Cir. 1993) (same), overruled by Blessing, 520 U.S. at 348, 117 S.Ct. at 1363; Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1313-14 (2d Cir. 1991) (sam e); Samuels v. District of Columbia, 770 F.2d 184, 195 (D.C. Cir. 1985) (same).

There are cases in other circuits addressing the qu estion of whether a regulation alone may create a right en forceable under section 1983. The Courts of Appeals for the F ourth and Eleventh Circuits concluded that they may not a nd the Court of Appeals for the Sixth Circuit decided to t he contrary. In Smith v. Kirk, 821 F.2d 980, 982 (4th Cir. 1987), the court considered whether the state's use of an economic needs test on disabled persons requesting
vocational rehabilitation services stated a cause o f action
under section 1983 for violations of the Social Sec urity Act and its implementing regulations. After concluding that nothing in the statute created an entitlement to vo cational rehabilitation services, the court addressed the pl aintiff 's argument that the mandatory language utilized in th e implementing regulations created such a right. See id. at 984. The court rejected this claim, stating:

An administrative regulation . . . cannot cr eate an enforceable S 1983 interest not already impl icit in the enforcing statute. The Supreme Court has nev er held that one could--to the contrary, members of the Court have expressed doubt that `administrative re gulations alone could create such a right.'

Id. (quoting Wright, 479 U.S. at 437, 107 S.Ct. at 777 (O'Conner, J., dissenting)). Therefore, the court a ffirmed the district court's dismissal of the plaintiff 's sect ion 1983 cause of action. See id.; see also Former Special P roject Employees Ass'n v. City of Norfolk, 909 F.2d 89, 94 (4th

28Cir. 1990) (following Smith and concluding that "be cause

[the statutory provision] does not provide an enfor ceable right, the [administrative regulation is] irrelevan t to our consideration of the employee's claim under section 1983").

The Court of Appeals for the Eleventh Circuit reach ed a similar conclusion in Harris v. James, 127 F.3d 993 (11th Cir. 1997). There, the court considered whether a M edicaid regulation requiring states to provide non-emergenc y transportation to and from providers created a righ t to such transportation enforceable under section 1983. See id. at 996. The court began by reviewing the Supreme Court 's precedent governing whether violations of federal s tatutes
create section 1983 causes of action. See id. at 9 97-1005. Then, the court turned to the specific question of whether the regulation created a federal right. See id. at 1005. There, like here, the requirement plaintiffs sought to enforce "appear[ed] explicitly not in the Medicaid Act, but in a federal regulation," with the plaintiffs claiming that "the regulatory and statutory provisions create[d] a fed eral right to transportation to and from providers." Id. The court rejected this argument. See id. at 1009-10.

In doing so, it first acknowledged the relative dea rth of authority on this precise issue, noting that courts of appeals are split and that the Supreme Court never definitively addressed the matter. See id. at 1005- 07 (citing Wright, 479 U.S. at 437-38, 107 S.Ct. at 777-78 (O' Conner, J., dissenting); Guardians Ass'n, 463 U.S. at 638, 103 S.Ct. at 3251; Loschiavo v. City of Dearborn, 33 F.3d 548 , 551 (6th Cir. 1994); Smith, 821 F.2d at 984). The court then analyzed the majority opinion in Wright to ascertai n whether it rejected the dissent's view of cases inv olving federal regulations, namely that administrative reg ulations alone cannot create enforceable federal rights, and found that it did not. See Harris v. James, 127 F.3d at 1 007-08 ("We conclude that the Wright majority did not hold that federal rights are created either by regulations`al one' or by any valid administrative interpretation of a statut e creating some enforceable right."). Therefore, the court rej ected the argument that a " `federal right' [may be found] in any regulation that in its own right meets the three-pr ong `federal rights' test," as well as the argument tha t

29"enforceable rights [may be found] in any valid

administrative interpretation of a statute that cre ates some enforceable right." Id. at 1008. Instead, it adopte d the rule

that:

[S]o long as the statute itself confers a sp ecific right upon the plaintiff, and a valid regulation m erely further
defines or fleshes out the content of that r ight, then the statute--`in conjunction with the regulation '--may create a federal right as further defined by the regulation.

. . .

[But], if the regulation defines the conten t of a statutory provision that creates no federal right under the three-prong test, or if the regulation g oes beyond explicating the specific content of the stat utory provision and imposes distinct obligations i n order to further the broad objectives underlying the statutory provision, we think the regulation is too fa r removed from Congressional intent to constitute a `f ederal right'
enforceable under S 1983. To hold otherwise would be inconsistent with the driving force of the S upreme Court precedent requiring a Congressional in tent to create federal rights and with the Supreme C ourt's directive that courts must find that Congres s has unambiguously conferred federal rights on th e plaintiff.

Id. at 1009 (footnotes omitted).

Applying this rule, the court concluded that the regulation did not define the content of any specif ic right conferred upon the plaintiffs by statute because th e"nexus between the regulation and Congressional intent to create federal rights [was] simply too tenuous to create a n enforceable right to transportation." Id. at 1009-1 0. Finally,

the court stated:

It may be that each of these statutes create s some federal right; similarly, it may be that the transportation regulation is a valid interpr etation of each of these provisions under Chevron. Howe ver, we do not think these two factors, even if we f ound both to be true, would add up to a federal right of

30transportation. In each case the transportat ion

regulation would be valid not because it rea sonably defines the content of rights created by the statutory provisions, as did the regulation in Wright, but only because the regulation furthers the broad ob jectives underlying each statutory provision. . . . I nstead, if the regulation is a valid interpretation of thes e provisions, it would be because transportation may be a reasonable means of ensuring the prompt prov ision of assistance, comparable assistance, or choice among providers. Such links to Congressional inten t may be sufficient to support the validity of a regu lation; however, we think they are too tenuous to su pport a conclusion that Congress has unambiguously conferred upon Medicaid recipients a federal right to transportation enforceable under S 1983.

Id. at 1011-12 (footnote omitted); see Kissimmee Ri ver Valley Sportsman Ass'n v. City of Lakeland, 250 F.3 d 1324, 1327 (11th Cir. 2001) (applying Harris and concludi ng that "even more clearly . . . the instant regulation imp oses new and `distinct obligations' not found in the statute itself, and thus is `too far removed from the Congressional int ent to constitute a federal right enforceable under S 1983 ' "), cert. denied, 70 U.S.L.W. 3106 (Nov. 26, 2001) (No. 01-20 4); Doe v. Chiles, 136 F.3d 709, 717 (11th Cir. 1998) (util izing Harris analysis and finding federal right was creat ed by statute and regulations that "further define[d] the contours of the statutory right" at issue).

The Court of Appeals for the Sixth Circuit, however
, reached the opposite result in Loschiavo. There, th e court held that because administrative regulations have t he force of law, they may create enforceable rights under se ction 1983. See Loschiavo, 33 F.3d at 551 (citing Wright, 479 U.S. at 431, 107 S.Ct. at 774). Accordingly, the co urt concluded that the regulation at issue created a fe deral right enforceable through section 1983. See id. at 552-53; see also Levin v. Childers, 101 F.3d 44, 47 (6th Ci r. 1996) (stating Loschiavo court held "plaintiffs may use S ection 1983 to enforce not only constitutional rights, but also

31those rights defined by federal statutes [and feder al

regulations]").10

Nevertheless, in light of the foregoing analysis, w e reject the Loschiavo approach. To start with, we reiterate that in Sandoval the Court made the critical point that"[l] anguage in a regulation may invoke a private right of actio n that Congress through statutory text created, but it may not create a right that Congress has not." 532 U.S. at ___, 121 S.Ct. at 1522. Furthermore, as we noted previously, the Court's focus in Wright was on tying Congress' inte nt to create federal rights through the statute to the pa rticular federal right claimed. See Wright, 479 U.S. at 430, 107 S.Ct. at 774; Harris, 127 F.3d at 1008-09. It was o f paramount importance that Congress intended to crea te such a right in the statute, with the regulation th en defining the right that Congress already conferred through the statute. See Wright, 479 U.S. at 430 n.11 & 431 , 107 S.Ct. at 774 & n.11; Harris, 127 F.3d at 1008.

Moreover, it is apparent that in the Court's sectio n 1983 jurisprudence after Wright dealing with whether a p laintiff is advancing an enforceable right, the primary consideration has been to determine if Congress int ended to create the particular federal right sought to be enforced. See Suter, 503 U.S. at 357, 112 S.Ct. at 1367 (stat ing issue as "[d]id Congress, in enacting the Adoption Act, unambiguously confer upon the child beneficiaries o f the Act a right to enforce the requirement that the Sta te make `reasonable efforts' to prevent a child from being removed from his home, and once removed to reunify the chil d with his family?"). Inasmuch as the Loschiavo court's ap proach first did not examine whether Congress intended to create the particular right at issue, we reject its holdin g that a federal right may be found in any federal regulatio n that, in its own right, meets the Blessing test.

Therefore, we follow Wright, in accordance with its actual holding, the teaching of Sandoval, and the holdings in Harris and Smith, which we believe the courts of ap peals

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10. Of course, when the issue was raised in a distr ict court within the
Sixth Circuit the court followed Loschiavo. See Luc ero v. Detroit Public Sch., 160 F. Supp. 2d 767, 781-85 (E.D. Mich. 2001)

.

32decided correctly, and hold that the EPA's disparat e impact

regulations cannot create a federal right enforceab le through section 1983. To the extent, if any, that P owell might be thought on a superficial reading to sugges t otherwise, in the light of Sandoval we cannot regar d it as stating controlling law. Since the time of the Supr eme Court's decision in Sandoval, it hardly can be argu ed reasonably that the right alleged to exist in the E PA's regulations, namely to be free of disparate impact discrimination in the administration of programs or activities receiving EPA assistance, can be located in either
section 601 or section 602 of Title VI.

In reaching our result, we emphasize the following. Sandoval made it clear that section 601 proscribes intentional discrimination only. See Sandoval , 532 U.S. at ___, 121 S.Ct. at 1516. In discussing whether secti on 602 and its implementing regulations created an implied right of action, the Court first considered whether Congress intended to create a federal right in favor of the plaintiffs.11 See id. at ___, 121 S.Ct. at 1520 21. After reviewi ng the relevant language of section 602, the Court stated:

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11. To adjudge whether an implied right of action e xists under a particular statute, courts employ a four-factor tes t the Court first articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S.C t. 2080, 2088 (1975). As the Court explained in Cannon:

In determining whether a private remedy is i mplicit in a statute

not expressly providing one, several factors are relevant. First, is

the plaintiff `one of the class for whose especi al benefit the statute

was enacted,' that is, does that statute create a federal right in

favor of the plaintiff? Second, is there any indicati on of legislative intent, explicit or implicit, either to create such a remedy or to deny

one? Third, is it consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaint iffs? And finally, is

the cause of action one traditionally relegated to state law, in an

area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on f ederal law?

Cannon, 441 U.S. at 688 n.9, 99 S.Ct. at 1953 n.9 ( quoting Tex. & Pac.R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 48 4 (1916)) (citations

and emphasis omitted). Although not expressly, the Sandoval Court began, and ended, its analysis with the first facto r, namely whether Congress intended to create a right in favor of the plaintiffs. See Sandoval, 532 U.S. at ___, 121 S.Ct. at 1520-21.

33It is immediately clear that the `rights-cre ating'

language so critical to the Court's analysis in Cannon of S 601, is completely absent from S 602. W hereas S 601 decrees that `[n]o person . . . shall . . . be subjected to discrimination,' the text of S 602 provides that `[e]ach Federal department and agency . . . is authorized and directed to effectuate the pr ovisions of [S 601].' Far from displaying congressional intent to create new rights, S 602 limits agencies to `effectuat[ing]' rights already created byS 601. And the
focus of S 602 is twice removed from the ind ividuals who will ultimately benefit from Title VI's protection. Statutes that focus on the person regulated rather than the individuals protected create `no im plication of an intent to confer rights on a particular c lass of persons.' Section 602 is yet a step further removed: it focuses neither on the individuals protected nor even on the funding recipients being regulated, b ut on the agencies that will do the regulating. . . . So far as we can tell, this authorizing portion of S 602 reveals no congressional intent to create a private rig ht of action.

Nor do the methods that S 602 goes on to pr ovide for enforcing its authorized regulations manifes t an intent to create a private remedy; if anything, the y suggest the opposite. . . . Whatever these elaborate restrictions on agency enforcement may imply for the priv ate enforcement of rights created outside ofS 60 2, they tend to contradict a congressional intent to create privately enforceable rights through S 602.

Id. at ___, 121 S.Ct. at 1521 (citations omitted). Therefore,
the Court found that there was no evidence of congressional intent to create new rights under sec tion 602. See id. Rather, "S 602 limits agencies to`effectuat [ing]' rights already created by S 601."12 Id.

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12. It is important to note that relying upon the S andoval Court's assessment of Congress' intent in enacting section 602, set forth in the context of determining whether there is a private r ight of action for the purposes of determining whether an enforceable righ t exists, does not, as the district court found, conflate the distinction between rights and remedies. See South Camden II, 145 F. Supp. 2d at 5 17 ("The essence of

34Inasmuch as the Court found previously that the onl y

right conferred by section 601 was to be free of in tentional discrimination, it does not follow that the right t o be free from disparate impact discrimination can be located in section 602. In fact, it cannot. In sum, the regula tions, though assumedly valid, are not based on any federa l right present in the statute. Thus, this case is very sim ilar to Smith and Harris. Here, as there, the regulations d o more than define or flesh out the content of a specific right conferred upon the plaintiffs by Title VI. Instead, the regulations implement Title VI to give the statute a scope beyond that Congress contemplated, as Title VI does not establish a right to be free of disparate impact discrimination. Thus, the regulations are "too far removed from Congressional intent to constitute a `federal right' enforceable under S 1983." Harris, 127 F.3d at 1009

.

Accordingly, if there is to be a private enforceabl e right under Title VI to be free from disparate impact discrimination, Congress, and not an administrative agency or a court, must create this right. In this regard, we point out what should be obvious: the scope of conduct su bject to being interdicted by limitations on actions havi ng a disparate impact is far broader than limitations on intentional discrimination. Thus, we reiterate that if Title VI

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the NJDEP's and [St. Lawrence]'s misunderstanding o f Sandoval lies in their conflation of rights with remedies in their a nalysis of the Supreme Court's holding in Sandoval."). It is true, as the district court repeatedly stated, that "[t]he holding in Sandoval is explici tly limited to the
determination that S 602 itself does not create a r ight of private action," or in other words, a remedy. Id. at 518. It is also true, as the Sandoval Court stated and the district court emphasized, tha t this court is "bound by holdings, not language." Sandoval, 532 U.S. at _ __, 121 S.Ct. at 1517. That being said, we are not precluded from utilizin g the Court's discussion of Congress' intent in enacting Title VI , although raised in

the context of whether Congress intended a remedy thro ugh section 602 directly, to help it discern whether Congress inten ded to create a right that is enforceable through section 1983. Doing so respects the difference between the Cort implied-right-of-action analysis and the Blessing "rights" analysis because it relies upon t he factor common to

both.

35is to go so far as to have the application that pla intiffs wish,

Congress should take it there.

We emphasize that the implications of this case are enormous and obviously, as the appearance of the ma ny amici curiae attests, have not been lost on interes ted parties. It is plain that in view of the pervasiven ess of state and local licensing provisions and the likely appli cability of Title VI to the agencies involved, the district cou rt's opinion has the potential, if followed elsewhere, to subjec t vast aspects of commercial activities to disparate impac t analyses by the relevant agencies. Indeed, we noted in Powell that "[a]t least 40 federal agencies have ad opted regulations that prohibit disparate-impact discrimi nation pursuant to [section 602]." Powell, 189 F.3d at 393 . While we do not express an opinion on whether that would be desirable, we do suggest that if it is to happen, t hen Congress and not a court should say so as a court's authority is to interpret rather than to make the l aw.13

IV. CONCLUSION

We sum up our conclusions as follows. The Supreme Court's primary concern in considering enforceabili ty of
federal claims under section 1983 has been to ensur e that Congress intended to create the federal right being advanced. See Suter, 503 U.S. at 357, 112 S.Ct. at 1367; Wright, 479 U.S. at 431, 107 S.Ct. at 774. Accordin gly, we hold that a federal regulation alone may not create a right

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13. St. Lawrence and NJDEP raise numerous other pro cedural and substantive arguments in support of their appeals. In view of our result, with one exception, we do not address them as the a ppeal is only from the granting of preliminary injunction that we are reversing on other grounds. Nevertheless, it is possible that on furth er proceedings the issues involved in those arguments may be significa nt and thus we want to make it clear that we are taking no position on those points. The one exception is NJDEP's argument that the Eleventh Ame ndment bars this action to the extent that it "prohibits the retrosp ective revocation of
[St. Lawrence's] air permit." Br. at 44. We are constrai ned to consider this argument as it is jurisdictional. See Chittister v. Dep't of Cmty. and

Econ. Dev., 226 F.3d 223, 227 (3d Cir. 2000). After caref ul consideration, we have concluded that the argument is without merit, and we therefore reject it without discussion.

36enforceable through section 1983 not already found in the

enforcing statute. Similarly, we reject the argumen t that enforceable rights may be found in any valid admini strative implementation of a statute that in itself creates some enforceable right. Applying these rules here, it is clear that, particularly in light of Sandoval, Congress did not intend by adoption of Title VI to create a federal right to b e free from disparate impact discrimination and that while the EPA's regulations on the point may be valid, they neverth eless do not create rights enforceable under section 1983. T he
district court erred as a matter of law in concludi ng otherwise and therefore also erred in finding that plaintiffs are likely to succeed on the merits of their claim. Consequently, we will reverse the district court's order of May 10, 2001, granting preliminary injunctive relie f and
will remand the case to the district court for furt her proceedings consistent with this opinion.

37McKEE, Circuit Judge, dissenting:

Plaintiffs seek to enforce regulations promulgated under S 602 of Title VI of the Civil Rights Act of 1963, 42 U.S.C. S 2000-1. The validity of those regulations is not in dispute here. The regulations are set forth at 40 C.F.R.S 7 .10 et seq. and require the defendants to consider the pot entially adverse disparate impact of air permits that St. La wrence needs to operate the proposed facility.1

The majority's decision to reverse the district cou rt's grant of preliminary injunctive relief is based upo n my colleagues' conclusion that the district court erre d"as a matter of law . . . in finding that plaintiffs are likely to succeed on the merits of their claim." Maj. Op. at 37. However, our review here ought to be limited to det ermining if plaintiffs have established "a reasonable probab ility of succeeding on the merits. . . ." ACLU v. Reno , 217 F.3d 162, 173 (3d Cir. 2000) (emphasis added). We need l ook no further than our recent decision in Powell v. Ridge , (3d Cir.) cert denied, 528 U.S. 1046 (1999) to find the answe r to that question. The majority correctly notes that the Sup reme Court's subsequent decision in Alexander v. Sandova l, 531 U.S. 1049 (2001), overruled part of our holding in Powell. However, Powell was not overruled in its entirety u ntil today. Ironically, the majority overrules Powell by engaging in an analysis that overreads Sandoval while cautio ning that "Powell, . . . should not be overread." Maj. O p. at 26. Accordingly, I respectfully dissent from the decisi on of my colleagues.

I.

Before beginning my discussion I think it is import ant to define the parameters of our inquiry. First, "we mu st affirm unless we find the [district] court abused its disc retion,

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1. The extent to which plaintiffs have already suff ered a disparate impact of pollution is readily apparent from the factual s ummary set forth by the majority. See Maj. Op. at 10 ("As a result, Wat erfront South, though only one of 23 Camden neighborhoods, hosts 20% of t he city's contaminated sites and, on average, has more than t wice the number of facilities with permits to emit air pollution than exist in the area encompassed within a typical New Jersey zip code.")

.

38committed an obvious error of law, or made a seriou s

mistake in considering proof." Bill Blass, Ltd v. S AZ Corp, et al, 751 F.2d 152, 154 (3rd Cir. 1984) (emphasis add ed). Our analysis is not driven by factual issues. Accor dingly, our inquiry turns on whether the district court com mitted
an "obvious error of law." If it committed such an error, it abused its discretion in granting preliminary relie f. If it did not commit such an error, preliminary relief was appropriate, and we must affirm. Second, there is n o issue about the validity of the applicable regulations en acted pursuant to 42 U.S.C. S 602. The majority assumes t hey are valid, just as the Supreme Court did in Sandova l. Third,

it has long been the rule in this Circuit th at decisions made in similar cases by panels of this Cour t are binding on other panels . . . . [i]t is only through the Court En Banc that precedents established by earlier [published] panel decisions may be reexamine d.

In the Matter of The Central Railroad Co. of New Je rsey, 485 F.2d 208, 210 (3rd Cir. 1974). See also Reich v. D. M. Sabia Co., 90 F.3d 854 (3rd Cir. 1996).

The majority concludes that the plaintiffs' action here is "legally insufficient" and that the district court therefore erred in granting preliminary injunctive relief, Ma j. Op. at 14, because the disparate impact regulations plaint iffs seek to enforce are "too far removed from Congressional intent to constitute a `federal right' enforceable underS 198 3." Id. at 35. Based upon that analysis, the majority conclude s that plaintiffs have no reasonable probability of succes s on the merits and are therefore not entitled to injunctive relief. This analysis not only ignores controlling preceden t, it
overrules it.

II.

42 U.S.C. S 1983 provides:

Every person who, under color of any statute
, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, su bjects, or causes to be subjected, any citizen of the U nited States or other person within the jurisdiction ther eof to the

39deprivation of any rights, privileges, or im munities

secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.

Section 601 of Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be exclu ded from participation in, be denied the benefits of, or be subjected to discrimination under any progra m or activity receiving Federal financial assista nce.

42 U.S.C. S 2000d. The Supreme Court has held that S 601 only reaches intentional discrimination. See Sandov al, 121 S. Ct. at 1516. However, S 602 authorizes federal r egulatory agencies to promulgate regulations under Title VI.

Section 602 provides, in relevant part:

Each Federal department and agency which is empowered to extend Federal financial assist ance to any program or activity, by way of grant, lo an, or contract other than a contract of insurance or guaranty, is authorized and directed to effe ctuate the provisions of section 2000d [Section 601] of this title with respect to such program or activity by issuing rules, regulations, or orders of general app licability
which shall be consistent with achievement o f the objectives of the statute authorizing financ ial
assistance in connection with which the acti on is

taken.

Id. S 2000d-1. The regulations at issue here were promulgated under S 602 and they proscribe discrimi nation that results from the disparate impact of certain a ctivity. The Environmental Protection Agency is not alone in promulgating disparate-impact regulations underS 60 2. In Powell we noted that "[a]t least 40 federal agencie s have adopted regulations that prohibit disparate-impact discrimination pursuant to this authority." 189 F.3 d at
393.

We held in Powell, that the plaintiffs there could maintain an action under S 1983 to enforce disparat e impact regulations promulgated under S 602 by the

40Department of Education that are virtually identica l to the

regulations promulgated by the Environmental Protec tion Agency that are at issue here.2 Plaintiffs in Powel l brought an action against state officials challenging the f unding mechanism for public education. They alleged, inter alia, that the defendants' method of funding education in the Commonwealth of Pennsylvania had a racially discriminatory impact in violation of Title VI and its implementing regulations.

The district court dismissed the complaint based up on its conclusion that the plaintiffs did not "adequately allege that a specific element of the Commonwealth's funding pr actices adversely and disproportionately affects students o f a particular race." 189 F.3d at 393. On appeal, the defendants asserted an alternative ground for uphol ding the district court. They argued that the Title VI r egulations did not provide an enforceable right. We resolved t hat inquiry by applying the four prong test established in Cort v. Ash, 422 U.S. 66 (1975), and a similar inquiry s et forth in Angelastro v. Prudential-Bache Securities, Inc. 764 F.2d 939 (3d Cir. 1985). See Powell. 189 F.3d at 397 ("I t is by now well established that implication of a private right of action for a statute requires analysis of the facto rs set forth in Cort v. Ash."). We concluded that Title VI affor ded plaintiffs a right to enforce the prohibition again st disparate impact discrimination contained in the regulations promulgated pursuant to S 602 of Title VI. We state d:

The regulation at issue here, although promu lgated by the Department of Education under 602 of Tit le VI, implements S 601 of Title VI. The Supreme Co urt precedent and our cases firmly establish tha t S 601 of Title VI gives rise to an implied right of a ction, at least for our purposes for securing injunctive rel ief.

189 F.3d at 399. We also concluded that the remaini ng prongs of the relevant inquiry were satisfied and h eld that

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2. The regulation at issue in Powell was codified a t 34 C.F.R. S 100.3(b)(2) and it prohibited recipients of appli cable federal funds

from "utilizing criteria or methods of administration wh ich have the effect of subjecting individuals to discrimination because of their race, color,

. . . ." 189 F.3d at 393.

41plaintiffs had therefore established "an implied pr ivate right

of action to enforce the regulations promulgated un der 602 of Title VI." Id. There is no question that that po rtion of our holding can not stand after the Supreme Court's pronouncement in Sandoval. That was the precise iss ue addressed in Sandoval and Powell was rendered a dea d letter as to that issue. However, that was also the only issue decided in Sandoval. The Court's holding did not address Count II of the complaint that was before t he court
in Powell.

In Powell, we explained: "[p]laintiffs' second coun t invokes one of the Civil Rights Acts, 42 U.S.C.S 19 83 to address the defendants' alleged violation of the re gulation." Id. We concluded that inasmuch as the complaint sou ght only injunctive and declaratory relief defendants w ere "persons acting under color of state law" under S 1 983. Id. at 401. We then cited Blessing v. Freestone, 520 U. S. 329 (1997) in stating that "once a plaintiff has identi fied a federal right that has allegedly been violated, the re arises a rebuttable presumption that the right is enforceabl e under
S 1983.' " 189 F.3d at 401. Inasmuch as the relevan t statute did not explicitly foreclose a suit underS 1983, and since that statute clearly lacked a "comprehensive enforcement scheme that is incompatible with indivi dual enforcement under S 1983," we concluded that plaint iffs could maintain an action to enforce the provisions of the regulations promulgated under S 602 by resorting to S 1983. We stated simply, "we see no reason to hold that
resort to S 1983 has been foreclosed here." Id. at 402.

The majority seizes upon that articulation of our h olding to minimize the effect of what we said. My colleagu es state: "Powell did not analyze the foundation issue that i s central here, i.e. whether a regulation in itself can creat e a right
enforceable under section S 1983. In Powell we seem ed simply to assume for section 1983 purposes that it could." Maj. Op. at 26-27. My colleagues then cite to Powel l at 401 and note that we there stated, "Once a plaintiff ha s identified a federal right that has allegedly been violated, there arises a `rebuttable presumption that the rig ht is enforceable under S 1983." Maj. Op. 27. I am frankl y astounded by that analytical alchemy. The rebuttabl e

42presumption we referred to in Powell arises not bec ause we

"assumed" a cause of action under S 1983, but preci sely
because we held there was a cause of action under S 1983. See Blessing, 520 U.S. at 1359. In Blessing , the C ourt was asked to determine if a plaintiff could enforce a r ight under S 1983. That was the issue, and it was the only iss ue. The Court stated, "We granted certiorari to resolve dis agreement among the Courts of Appeals as to whether individua ls may
sue state officials under S 1983 for violations of Title IV-D." Id. at 339-40. The Court began that inquiry by citi ng Maine v. Thiboutot, 448 U.S. 1 (1980), wherein the Court had held that S 1983 provided a remedy for violations of fed eral rights, not federal laws. The Blessing Court could not have been clearer in stating: "[i]n order to seek redres s through S 1983, however, a plaintiff must assert the violat ion of a federal right, not merely a violation of federal la w." Blessing, 520 U.S. at 340 (emphasis in original). The Court t hen applied the three factor test set forth in Wright v . Roanoke Redevelopment and Housing Authority, 479 U.S. 418 ( 1987), to determine if plaintiff had established a federal right. In doing so, the Court noted that if plaintiff had est ablished such a right, it would be enforceable under S 1983 unless Congress had foreclosed resort to S 1983 either in the text of the applicable statute, or the comprehensive nat ure of the relevant statutory scheme. Blessing, 520 U.S. a t 340. It is in this latter context that a presumption arises

. Accordingly, there is a presumption that S 1983 is available once a federal right (as opposed to a violation of federal law) is established. The presumption is rebutted if a de fendant can establish that Congress expressed its intent (e xplicitly, or implicitly through the statutory scheme), that t he statute not be enforceable under the general rubric of S 19 83.

It is true, as the majority notes, that much of our
discussion in Powell was worded in terms of refutin g defendant's assertion that plaintiffs could maintai n a cause of action. The majority notes: that "[Powell ] mere ly rejected . . . specific arguments. But Powell did not analyz e the foundation issue that is central here, i.e. whether a regulation in itself can create a right enforceable under section 1983." Maj. Op. at 26-27. That assertion ca n not withstand even a cursory reading of Powell. The fac t that we "merely rejected" defendant's arguments that S 1 983

43does not allow a private cause of action to enforce the

regulations does not negate the fact that the resul t of refuting those arguments was that we found plaintif fs had a cause of action under S 1983, and that was part o f our holding. The majority's attempt to suggest the cont rary is tantamount to arguing that "merely rejecting" the a rgument that 2 plus 2 does not equal 4 does not at the same time establish that 2 plus 2 does equal 4.

The sleight of hand that transforms our mention of a "presumption" in Powell into an assumption about th e application of S 1983 is even more puzzling when on e considers that the majority's own analysis states t hat the relevant presumption does not arise unless the plai ntiff can establish a federal right has been violated. My col leagues quite correctly state: "If a plaintiff . . . establ ishes and identifies a federal right that allegedly has been violated, a rebuttable presumption that the right is enforceabl e through section 1983 arises." Maj. Op. at 18 (citin g Blessing). Therefore, the majority clearly recogniz es that Powell concluded that the plaintiffs there had a fe deral right, arising from the regulations promulgated und er Title VI, and that the right could be enforced under S 19 83
absent a demonstration that the cause of action was precluded by the text of Title VI, or the statutory scheme.
We held that the defendants in Powell could not reb ut the presumption. Moreover, the majority here correctly concedes that that was part of our holding in Powel l, even while attempting to transform the holding into a me re assumption. See Maj. Op. at 13 ("In reaching its re sult the [district] court relied, inter alia on Powell v. Ri dge, in which we held that there was a private right of action av ailable to enforce a regulation implementing Title VI and tha t a disparate impact discrimination claim could be main tained under section 1983 for a violation of a regulation promulgated pursuant to section 602.") (emphasis ad ded); see also Maj. Op. at 26 ("We answered both question s in the affirmative, stating that section 602 and the Department of Education regulation at issue provide d a private right of action, and that plaintiffs could utilize section 1983 to redress defendant's alleged violati on of the statute and regulation.") (emphasis added). As note d above, it is clear that the first part of our holding in P owell does

44not survive Sandoval. However, that is simply not t rue of

the second part of the holding. Sandoval never disc ussed
the S 1983 issue.

In Sandoval, plaintiffs brought a class action agai nst the Alabama Department of Public Safety in an attempt t o enjoin the Department from administering drivers li cense examinations only in English. Plaintiffs alleged th at administering the test in English to Spanish speaki ng residents had the effect of discriminating against them in violation of S 601 of Title VI. The Court began its analysis by stating that it was clear from the Court's own d ecisions, Congress' amendments to Title VI, "and from the par ties' concessions that three aspects of Title VI must be taken as given." 121 Sup. Ct. at 1516. These were that priva te individuals could sue to enforce the prohibition of intentional discrimination contained in S 601, that S 601 prohibits only intentional discrimination, and "we must assume for purposes of deciding this case that regu lations promulgated under S 602 of Title VI may validly pro scribe activities that have a disparate impact on racial g roups, even though such activities are permissible underS 601."

Id. at 1516-17.

In writing for the majority and noting these three principles were taken as given, Justice Scalia obse rved that five justices of the Court had previously, in Guard ians Association v. Civil Serv. Comm'n of New York City , 463 U.S. 582 (1983), voiced that latter principle "at l east as alternative grounds for their decisions." Sandoval 121 S.Ct at 1517. Justice Scalia noted that that position wa s"in
considerable tension with the rule of Bakke3 and Gu ardians that S 601 forbids only intentional discrimination. . . ." Id. However, inasmuch as the plaintiffs in Sandoval ha d not challenged the regulations and had asserted a claim only under S 601, the Court, "for the purposes of decidi ng this case" assumed that the regulations proscribing disp arate impact discrimination "are valid." Id. at 1517.

The question before the Court was, therefore, a ver y narrow one. The only issue was whether S 602 create d a free standing private cause of action to enforce re gulations

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3. Referring to Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

45precluding disparate impact discrimination. As note d

above, that was the only question that the Court gr anted
certiorari to review. The Court answered that narro w inquiry as follows:

"neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding proper right of action to enforce regulation s promulgated under S 602. We therefore hold t hat no such right of action exists."

121 Sup. Ct. at 1523.

The majority seizes upon the "language of Sandoval, " to answer the very different inquiry posed by the dist rict court's injunction here. The majority does so even while noting that the Court in Sandoval cautioned that "t his Court is `bound by holdings, not language.' " Maj. Op. at 35 n. 12 (quoting Sandoval 121 Sup. Ct. at 1517). The language of Sandoval, however, can not read an issu e into that case that was not raised by the parties and no t decided by the Court.

The issue here, simply stated, is whether S 1983 pr ovides an independent avenue to enforce disparate impact regulations promulgated under S 602 of Title VI. Th at is the same question that was posed in Powell. We answered it in the affirmative in Powell, and the answer was not overturned by the subsequent holding in Sandoval. P owell therefore controls our inquiry here until overruled by the Supreme Court, or this court sitting en banc. See C entral Railroad, 485 F.2d at 210. Clearly, the majority's decision is not based on any determination of the en banc co urt. Just as clearly, it is not based upon the holding i n Sandoval, or Powell.

The majority reasons that inasmuch as the Sandoval majority did not find the requisite Congressional i ntent for a private cause of action in the statute there can be no enforceable right under S 1983. See Maj. Op. at 37 ("Applying these rules here, it is clear that, part icularly in light of Sandoval, Congress did not intend by adopt ion of Title VI to create a federal right to be free from disparate impact discrimination and that while the EPA's regu lations

46on the point may be valid, they nevertheless do not create

rights enforceable under section 1983.").

However,

This [an enforceable right under S 1983] is a different inquiry than that involved in determining wh ether a private right of action can be implied in a particular statute. In right of action cases we employ the four- factor Cort test to determine whether Congre ss intended to create the private remedy assert ed for the violation of statutory rights. The test refl ects a concern, grounded in separation of powers, that Congr ess rather than the courts controls the availability of remedies for violations of statutes. Because S 1983 provi des an alternative source of express congressional authorization of private suits, these separation-of-powers concerns are not present in a S 1983 case. Consistent wit h this view, we recognize an exception to the general rul e that S 1983 provides a remedy for violation of fe deral statutory rights only when Congress has affi rmatively withdrawn the remedy.

Wilder v. Virginia Hospital Assoc., 496 U.S. at 508 n.9 (1990) (emphasis added) (internal citations and int ernal quotation marks omitted) (citing Sea Clammers , 453 U.S. at 19.).

The majority in Sandoval did, in fact, apply the aforementioned Cort test for determining if a cause of action existed in the statute. The Court did not apply the Blessing test that is used under S 1983 analysis.4 This fact alone should cause my colleagues pause before "overreading" Sandoval.

Moreover, if we are to discount Powell on the groun ds that Powell only assumed plaintiffs there had an ac tionable S 1983 claim so too we must distinguish Sandoval--a case

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4. Blessing requires, as its first element, that "C ongress must have intended that the provision in question benefit the plaintiff." Blessing, 520 U.S. at 340. The Sandoval Court, on the other h and, asked in its private right of action inquiry, "whether it[sectio n 602] displays an intent to create not just a private right but also a private remedy." Sandoval, 121 S.Ct. at 1519.

47which is even one step more removed than Powell fr om the

appropriate inquiry--as Sandoval did not even addre ss S 1983 to begin with.

Although my colleagues recognize in a footnote that the four justices who dissented in Sandoval believed th at litigants could still bring a S 1983 cause of actio n for violation of a Title VI disparate-impact regulation , the majority fails to give that fact the significance i t deserves. See Maj. Op. at 17 n.5. The dissenting justices res ponded to the majority's conclusion that the plaintiffs in Sandoval could not bring a cause of action under Title VI by stating:

to the extent that the majority denies relie f to the respondents merely because they neglected to mention 42 U.S.C. S 1983 and framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulati ons against state actors in all likelihood must only ref erenceS 1983 to obtain relief; indeed, the plaintiffs in this case . . . presumably retain the option of rechallengin g Alabama's English-only policy in a complaint that invokes S 1983 even after today's decision.

Sandoval at 1527.

In reaching our second holding in Powell, we also n oted

that

Defendants' argument conflicts with the Supr eme Court's own pronouncements. As previously no ted, in Guardians five of the nine justices agreed t hat the administrative regulations incorporating a disparate impact standard are valid, see 463 U.S. at 584 n. 2, 607 n. 27, 103 S.Ct. 3221, and the reafter the
Court in Alexander5 characterized Guardians as so holding. See Alexander, 469 U.S. at 293, 105 S.Ct. 712 ("[Guardians] held that actions having an un justifiable disparate impact on minorities could be redr essed through agency regulations designed to imple ment the purposes of Title VI."). Obviously, the Supr eme Court did not believe that administrative regulati ons that prohibit disparate impact were an impermissi ble

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5. Referring to Alexander v. Choate, 469 U.S. 287 ( 1985).

48creation of substantive law, even though in its own

earlier opinion in Guardians the Supreme Cou rt had
held that Title VI itself did not extend tha t far.

189 F.3d at 399-400.

Moreover, Supreme Court precedent affords additiona l support for the plaintiffs' claim here. In Wright v . City of Roanoke Redevelopment & Hous. Auth., supra , the pl aintiffs brought an action under S 1983 to enforce regulatio ns that
defined "rent" under the relevant statute. Defendan ts argued that the rights plaintiffs sought to enforce under S 1983 were too amorphous and vague to confer an enforceable right under S 1983. In rejecting that a rgument the Supreme Court proclaimed that "[t]he regulation s . . . have the force of law." 479 U.S. at 431.

The majority attempts to distance the instant inqui ry from the analysis in Wright by arguing that the Cou rt there
first examined the relevant statute and concluded t hat the statute, itself, conferred the right plaintiffs wer e seeking to enforce under S 1983. Only upon making that determination, argues the majority, did the Court t hen conclude that the relevant regulations could proper ly define and flesh out the statutorily conferred right. The majority then concludes that, inasmuch as the relevant right here resides in the regulations, not Title VI, S 1983 ca n not independently afford the relief that Congress did n ot provide for in the controlling statute. Maj. Op. at 24.

It is true that the Court in Wright ordered its ana lysis as the majority suggests. However, the Court stated th at the regulation had the force of law as part of its Bles sing analysis. Significantly, the Court applied that ana lysis not to the provisions of the statute, but to the regula tion itself. Accordingly, Wright is consistent with, and support s, the plaintiffs' position here that the regulations them selves may give birth to a federal right so long as the regula tions are
valid.

In addition, the Supreme Court later interpreted Wr ight as finding an enforceable right in the interrelatio nship between the regulations and underlying statute. See Wilder, 496 U.S. at 511 ("[I]n Wright, we found that the [s tatute] . . . and its implementing regulations did create r ights

49enforceable under S 1983."). Cases that we decided before

Powell reached the same conclusion. See Alexander v . Polk, 750 F.2d 250 (3d Cir. 1984)).

In Polk, we concluded that the regulation at issue created an enforceable right. See Polk, 750 F.2d at 259 ("I t is clear that 7 C.F.R. S 246.24 created an enforceable right on behalf of [plaintiffs] to be informed of the availa bility of fair hearings."). The majority attempts to reconcile tod ay's opinion with Polk by stating that the right identif ied there
could be "traced to and was consistent with the sta tute". Maj. op. at 25. We ought not dismiss Polk so easily however, given our pronouncement in Powell. Althoug h we did not cite Polk in Powell, we were clearly aware of the Polk analysis, and it is consistent with our result in P owell. Furthermore, although Polk was decided before Bless ing, it is clear that the analysis in Polk is consistent wi th a Blessing analysis, and the focus upon congressional intent. See Polk, 750 F.2d at 259 ("The provision was inten ded to safeguard the legal rights of WIC beneficiaries by informing them of fair hearing procedures.").

The regulations the South Camden plaintiffs are attempting to enforce can also be traced to Title V I. The majority focuses on the fact that S 601 proscribes only intentional discrimination. Nevertheless, disparate -impact regulations may very well reflect an agency's pract ical considerations and definition of discrimination, ju st as "rent" was defined by the Department of Housing and Urban Development in the regulations in Wright . We cannot invalidate that regulatory definition without inval idating the regulations, and the majority claims that it is not doing that.6

Lastly, in keeping with the tendency to rely upon "language" that is favorable, and distinguish contr ary pronouncements as "dicta," the majority dismisses o ur decision in West Virginia Univ. Hospitals v. Casey, 885 F.2d 11 (3rd Cir. 1989) as "dicta." Maj. op. at 26. In C asey, we interpreted Wright and Polk as standing for the pro position that regulations, as well as statutes, can create r ights that are enforceable under S 1983. There we stated,"vali d

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6. Although the majority snipes at the disparate-im pact regulations, my colleagues concede they are valid for purposes of t he instant analysis.

50federal regulations as well as federal statutes may create

rights enforceable under section 1983," and we cite d Wright, and Polk. 885 F.2d at 18. I readily concede that Casey involved only a statute, not regulations, and therefore, this statement was "dicta" just as the m ajority states. However, I think it noteworthy that my coll eagues so readily dismiss statements from our own jurispruden ce as "dicta" while relying upon dicta from cases that s upport its analysis and identifying the "dicta" as "teachings. " See Maj. Op. at 32-33 ("we follow Wright, in accordance with its actual holding, the teaching of Sandoval, and the h oldings in Harris and Smith, which we believe the courts of appeals decided correctly").

Of course, whether or not the plaintiffs would ulti mately prevail on the merits is not the issue before us to day. However, given controlling precedent in Powell I f rankly fail to see how we can conclude that their chances of pr evailing are anything less than reasonable. Moreover, their position has been adopted by our sister Court of Appeals for the Sixth Circuit. See Loschiavo v. City of Dearborne, 33 F.3d 548 (6th Cir. 1994), (holding that regulations prom ulgated under the Cable Communications Policy Act of 1984 created a right which plaintiff could enforce under 42 U.S.C. S 1983, and relying upon Wilder, 496 U.S. at 520 and Wright, 479 U.S. at 432). The reasonableness of the plaintiffs' position is further underscored by the four dissenting justices in Sandoval. They noted:

the majority declines to accord precedential value to Guardians because the five justices in the m ajority were arguably divided over the mechanism for which private parties might seek such injunctive r elief.

121 Sup. Ct. at 1527.

Conclusion

Accordingly, for the reasons set forth herein, I respectfully dissent from the decision of the major ity. I do readily concede that, given the pronouncements in Sandoval, the majority's opinion here has some forc e. However, the majority's opinion can not withstand s crutiny given Powell, as well as other cases that were not overruled

51by Sandoval. I believe that the district court was clearly

correct in concluding that plaintiffs can demonstra te a "reasonable probability of success" on the merits.7

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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7. Inasmuch as the majority's analysis is limited t o the first prong of

the four part test for upholding a preliminary injuncti on I have not discussed whether plaintiffs have shown that they w ill be irreparably harmed by the denial of relief, whether granting th e preliminary relief will result in even greater harm to the defendants or whether granting preliminary relief will be in the public interest. See Allegheny Energy

Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) citi ng ACLU v. Blackhorse Pike Regional Bd. Of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en
banc)).
52