2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-17-2001

S Camden Citizens v. NJ Dept Env Prot

Precedential or Non-Precedential:

Docket 01-2224

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Recommended Citation

"S Camden Citizens v. NJ Dept Env Prot" (2001). 2001 Decisions. Paper 292.

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Filed 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 

 2 
 John 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 

 3 
 James 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 

 4 
 Daniel 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 

 5 
 Lawrence 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 

 6 
 Ken 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 

 7 
 Julie 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 

 8 
 Michelle 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 of 

Environmental Protection ("NJDEP") and intervenorappellant St. Lawrence Cement Co., L.L.C. ("St. Lawrence") 

from the district court's order granting preliminary 

injunctive relief to plaintiffs, South Camden Citizens in 

Action and ten residents of the Waterfront South 

neighborhood of Camden, New Jersey. Plaintiffs brought 

this action pursuant to 42 U.S.C. S 1983, as well as on 

other bases, claiming NJDEP discriminated against them 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 Act of 1964, 

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

Our opinion focuses on whether, following the Supreme 

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 implementing 

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 regulation, and 

that inasmuch as Title VI proscribes only intentional 

 9 
discrimination, the plaintiffs do not have a right enforceable 

through a 1983 action under the EPA's disparate impact 

discrimination regulations. Because the district court 

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 basis and 

the district court's opinions stated the facts at length, we 

only need summarize the factual background of this case. 

Initially, we point out that the residents of Waterfront 

South are predominately minorities and the neighborhood 

is disadvantaged environmentally.1 Waterfront South

contains two Superfund sites, several contaminated and 

abandoned industrial sites, and many currently operating 

facilities, including chemical companies, waste facilities, 

food processing companies, automotive shops, and a 

petroleum coke transfer station. Moreover, NJDEP has 

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 result, 

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 code. 

St. Lawrence supplies cement materials, primarily to the 

ready-mix concrete industry. One aspect of St. Lawrence's 

business is the processing of ground granulated blast 

furnace slag ("GBFS"), a sand-like by-product of the 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 Corporation 

(the "Port"). In furtherance of this project, in March 1999 

St. Lawrence signed a lease with the Port for the site and 

initiated discussions with NJDEP with respect to obtaining 

_________________________________________________________________ 

1. The Waterfront South community is comprised of 63% AfricanAmerican, 28.3% Hispanic, and 9% white residents. 

 10 
construction 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 required St. 

Lawrence to conduct an air quality impact analysis for 

PM10 confirming that there would not be adverse health 

impacts from operation of the facility and that St.

Lawrence's operations complied with the National Ambient 

Air Quality Standards for PM10. St. Lawrence completed 

the analysis, and NJDEP accepted the result that the 

facility's emissions would satisfy the established standards 

applicable to its operation. 

On November 1, 1999, NJDEP notified St. Lawrence that 

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 hearing to 

be held on August 23, 2000, addressing St. Lawrence's 

draft air permit. NJDEP stated, however, that it would 

accept written comments on the draft permit until August 

31, 2000. Approximately 120 community members voiced 

their opinions and concerns about St. Lawrence's facility 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 Air 

Permit" for St. Lawrence. In the report, NJDEP addressed 

the concerns raised by community members, including

environmental equity/environmental justice, preexisting 

local environmental issues, St. Lawrence's emission limits, 

the results of St. Lawrence's air quality impact analysis, 

truck emission standards and carbon monoxide air quality 

evaluation results, and the protection of the health and 

safety of Waterfront South residents. Plaintiffs, however, 

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 Title VI of 

the Civil Rights Act of 1964 because the procedures did not 

include an analysis of the allegedly racially disparate 

adverse impact of the facility. NJDEP did not respond to the 

grievance hearing request, and on October 31, 2000, issued 

St. Lawrence's final air permit. 

 11 
B. 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 intentionally 

discriminating against them in violation of section 601, 42 

U.S.C. S 2000d, by issuing the air quality permit and 

further asserting that the facility in operation under the air 

permit would have an adverse disparate impact on them in 

violation of section 602, 42 U.S.C. S 2000d-1. St. Lawrence 

subsequently intervened with the consent of the parties. 

Following the submission of briefs and expert reports and 

oral argument, the district court issued an opinion and 

order on April 19, 2001, granting plaintiffs' request for a 

preliminary injunction. See South Camden Citizens in 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 its 

implementing regulations contained an implied private right 

of action. Therefore, inasmuch as the court found that 

plaintiffs otherwise were entitled to relief based on their 

disparate impact claim, it remanded the matter to NJDEP 

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 that 

"[n]either as originally enacted nor as later amended 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 action 

exists." Id. at ___, 121 S.Ct. at 1523 (footnote omitted). 

Obviously, Sandoval eliminated the basis for the court's 

injunction in South Camden I, an effect that led St. 

Lawrence to move to dissolve the injunction. The district 

court, however, denied the motion, following which St. 

Lawrence again sought similar relief or a stay of the 

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' remaining 

claims, namely, whether plaintiffs' intentional 

discrimination charge and/or their section 1983 claim 

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

2001, the court issued a supplemental opinion and order 

continuing the preliminary injunction based on plaintiffs' 

section 1983 claim and again remanding the matter to 

NJDEP for a Title VI analysis. See South Camden Citizens 

in Action v. N.J. Dep't of Envtl. Prot., 145 F. Supp. 2d 505 

(D.N.J. 2001) (South Camden II). In reaching its result the 

court relied, inter alia, on Powell v. Ridge, 189 F.3d 387, 

403 (3d Cir.), cert. denied, 528 U.S. 1046, 120 S.Ct. 579 

(1999), in which we held that there was a private right of 

action available to enforce a regulation implementing 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. Immediately 

thereafter, St. Lawrence unsuccessfully moved in the 

district court for a stay of the preliminary injunction 

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 pending 

appeal, as well as a request for expedited review of 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 for 

expedited review, and on June 15, 2001, we granted St. 

Lawrence's request to suspend the preliminary injunction 

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 grinding 

facility.2 The district court found that plaintiffs stated a 

_________________________________________________________________ 

2. The district court had jurisdiction over this matter pursuant to 28 

U.S.C. SS 1331, 1343, and we have jurisdiction pursuant to 28 U.S.C. 

S 1292(a)(1). 

 13 
claim under section 1983 against NJDEP for violating 

section 602 and its implementing regulations by failing to 

consider the potentially adverse discriminatory impact 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 preliminary 

injunction for abuse of discretion, although we review 

factual findings for clear error and questions of law 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 "extraordinary 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 eventual 

success in the litigation, and (2) that it will be irreparably 

injured if relief is not granted. Moreover, the district court 

also should take into account, when relevant, (3) the 

possibility of harm to other interested persons from the 

grant or denial of the injunction, and (4) the public interest. 

See In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 

1143 (3d Cir. 1982). Thus, "a failure to show a likelihood of 

success or a failure to demonstrate irreparable injury must 

necessarily result in the denial of a preliminary injunction." 

Id. at 1143. 

We first consider the probability of plaintiffs' success in 

the litigation and, indeed, as we find that their case is 

legally insufficient, we will go no further. Naturally, in view 

of Sandoval, the overarching legal issue on this appeal is 

whether plaintiffs can advance a cause of action to enforce 

section 602 of Title VI and its implementing regulations 

through section 1983. If they cannot, then the only basis 

on which they can obtain relief is to demonstrate that the 

NJDEP engaged in intentional discrimination, a possibility 

that we do not address on this appeal. 

_________________________________________________________________ 

3. The parties agree that the NJDEP receives grants of federal financial 

assistance so as to be subject to Title VI of the Civil Rights Act of 

1964, 

including sections 601 and 602. 

 14 
We start our legal analysis with a consideration of

Sandoval in which the Court held that a private right of 

action is not available to enforce disparate impact

regulations promulgated under Title VI,4 thus overruling 

Powell at least to the extent that it held to the contrary. See 

Sandoval, 532 U.S. at ___, 121 S. Ct. at 1523. In Sandoval, 

_________________________________________________________________ 

4. We have set forth conditions that can lead to the recognition of a 

private right of action not explicitly created as follows: 

 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 implied private right of 

action 

 to enforce the statute may exist directly under 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 must satisfy the first 

 requirement--that the statute creates a federal right in favor of 

the 

 plaintiff. The plaintiff must then satisfy the three remaining Cort 

v. 

 Ash requirements relating to the existence of a remedy--that 

 Congress intended to create a remedy, that the remedy is consistent 

 with the legislative scheme, and that the cause of action is not 

 traditionally relegated to state law. In sum, under Cort v. Ash the 

 plaintiff bears the burden of establishing not 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 inquiries are relevant: one, 

 whether the statute alleged to have been violated creates a federal 

 right in favor of the plaintiff, and the other, whether Congress 

has 

 foreclosed the remedy of private enforcement. TheS 1983 analysis 

 intersects with the Cort v. Ash analysis insofar as the plaintiff 

under 

 both analyses must establish the creation of a federal right. With 

 respect to the existence of a remedy, however, 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, 

the 
 existence of a remedy is presumed because S 1983 itself provides 

the 

 authorization for private enforcement. The burden is on the 

 defendant to establish that Congress intended to foreclose private 

 enforcement. 

W. Va. Univ. Hosp. v. Casey, 885 F.2d 11, 18 n.1 (3d 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. 

 15 
the Court considered a challenge to the Alabama 

Department of Public Safety's official policy of administering 

its driver's license examination only in English as violative 

of Title VI and its implementing regulations. See id. at ___, 

121 S.Ct. at 1515. The Court held that "[n]either as 

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 602. 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 VI that 

"must be taken as given": (1) private individuals may sue to 

enforce section 601 of Title VI and obtain both injunctive 

relief and damages; (2) section 601 prohibits only 

intentional discrimination; and (3) for the purposes of the 

case, regulations promulgated pursuant to section 602 

validly may proscribe disparate impact discrimination even 

though it is permissible under section 601. See id. at ___, 

121 S.Ct. at 1516-17. Then, the Court considered whether 

section 602 regulations conferred a private right of 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 its 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 Lau v. 

Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974) (holding that 

section 601 prohibits disparate impact discrimination); 

Cannon v. Univ. of Chicago, 441 U.S. 677, 694, 99 S.Ct. 

1946, 1956 (1979) (holding that private right of action 

exists to enforce Title IX, which is patterned after Title VI); 

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98 

S.Ct. 2733, 2746 (1978) (holding, contrary to Lau, that 

section 601 proscribes only those classifications that would 

violate the Equal Protection Clause of the Fifth Amendment, 

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 prohibits 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 private right 

 16 
of action and that the regulations alone were insufficient to 

create a private right of action. See id. at ___, 121 S.Ct. at 

1520-22 ("Language in a regulation may invoke a private 

right of action that Congress through statutory text created, 

but it may not create a right that Congress has not."). 

Therefore, the Court held that a private right of action was 

not available to enforce regulations promulgated under 

section 602. See id. at ___, 121 S.Ct. at 1523. However, 

inasmuch as the plaintiffs in Sandoval did not advance 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, subjects, or 

 causes to be subjected, any citizen of the United States 

 or other person within the jurisdiction thereof to the 

 deprivation of any rights, privileges, or immunities 

 secured by the Constitution and laws, shall be liable to 

_________________________________________________________________ 

5. In his dissent, Justice Stevens stated the following with regard to 

section 1983: 

 [T]o the extent that the majority denies relief to the respondents 

 merely because they neglected to mention 42 U.S.C.S 1983 in 

 framing their Title VI claim, this case is something 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 this 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 (Stevens, J., dissenting). 

The majority does not address the dissent's statement. Nevertheless, for 

the reasons that follow, we conclude that the majority's opinion and 

Supreme Court precedent do not permit the bringing of the section 1983 

action that Justice Stevens suggested is available.
 17 
 the party injured in any action at law, suit in equity, or 

 other proper proceeding for redress. 

Therefore, section 1983 provides a remedy for deprivation 

under color of state law of "any rights . . . secured by the 

Constitution and laws." In Maine v. Thiboutot , 448 U.S. 1, 

6-8, 100 S.Ct. 2504, 2505-06 (1980), the Supreme Court 

interpreted this language and held that causes of action 

under section 1983 are not limited to claims based on 

constitutional or equal rights violations. Rather, certain 

rights created under federal statutes are enforceable 

through section 1983 as well. This rule, however, is limited 

by two well-recognized exceptions. First, a section 1983 

remedy is not available "where Congress has foreclosed 

such enforcement of the statute in the enactment itself." 

Wright v. City of Roanoke Redevelopment & Hous. Auth., 

479 U.S. 418, 423, 107 S.Ct. 766, 770 (1987). Second, the 

remedy is not available "where the statute did not create 

enforceable rights, privileges, or immunities within the 

meaning of S 1983." Id. 

The Supreme Court has established a three-part test to 

determine whether a federal statute creates an individual 

right enforceable through a section 1983 action: 

 First, Congress must have intended that the provision 

 in question benefit the plaintiff. Second, the plaintiff 

 must demonstrate that the right assertedly protected 

 by the statute is not so `vague and amorphous' that its 

 enforcement would strain judicial competence. Third, 

 the statute must unambiguously impose a binding 

 obligation on the States. In other words, the provision 

 giving rise to the asserted right must be couched 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 rebuttable 

presumption that the right is enforceable through 

section 1983 arises. See id. at 341, 117 S.Ct. at 1360; see 

also Banks v. Dallas Housing Auth., 271 F.3d 605, 2001 WL 

1285391, at *4 (5th Cir. Oct. 24, 2001). We have found two 

circumstances, which in harmony with Wright, are 

 18 
sufficient to rebut this presumption: where "Congress 

specifically foreclosed a remedy under S 1983,[either] 

expressly, by forbidding recourse to S 1983 in the statute 

itself, or impliedly, by creating a comprehensive 

enforcement scheme that is incompatible with individual 

enforcement under S 1983." Powell, 189 F.3d at 401 

(citations omitted). In the former case, the plaintiff 's claim 

must fail. In the latter case, however, the burden shifts to 

the defendant to "make the difficult showing that allowing 

a S 1983 action to go forward in these circumstances `would 

be inconsistent with Congress' carefully tailored scheme.' " 

Id. (quoting Blessing, 520 U.S. at 346, 117 S.Ct. at 1362). 

Here, plaintiffs seek to enforce a prohibition on disparate 

impact discrimination that does not appear explicitly in 

Title VI, but rather is set forth in EPA regulations. They 

contend that the regulations are a valid interpretation 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 program or 

 activity receiving Federal financial assistance. 

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

 Each Federal department and agency which is 

 empowered to extend Federal financial assistance to 

 any program or activity, by way of grant, loan, or 

 contract other than a contract of insurance or 

 guaranty, is authorized and directed to effectuate the 

 provisions of section 2000d [Section 601] of this title 

 with respect to such program or activity by issuing 

 rules, regulations, or orders of general applicability 

 which shall be consistent with achievement of the 

_________________________________________________________________ 

6. We assume without deciding that the regulations are valid, as neither 

NJDEP nor St. Lawrence timely challenged them in the district court and 

our analysis does not turn on their validity. That being said, like the 

Court stated in Sandoval, we observe that there does seem to be 

considerable tension between the section 602 regulations proscribing 

activities that have a disparate impact and section 601's limitation to 

interdiction only of intentionally discriminatory activities. See 

Sandoval, 

532 U.S. at ___, 121 S.Ct. at 1517. 

 19 
 objectives of the statute authorizing financial 

 assistance in connection with which the action is 

 taken. 

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

 No person shall be excluded from participation in, 

 be denied the benefits of, or be subjected to 

 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 methods of 

 administering its program which have the effect of 

 subjecting individuals to discrimination because of 

 their race, color, national origin, or sex, or have the 

 effect of defeating or substantially impairing 

 accomplishment of the objectives of the program with 

 respect to individuals of a particular race, color, 

 national origin, or sex. 

40 C.F.R. SS 7.30 & 7.35(b). According to plaintiffs, these 

statutory provisions and their complementary regulations 

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 section 

1983 where the alleged right does not appear explicitly in 

the statute, but only appears in the regulation. The district 

court found that the Supreme Court, as well as this court, 

have found that a regulation may create an enforceable 

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)), and 

therefore concluded that the three-prong Blessing test 

applied to determine whether the EPA regulations indeed 

created a federal right. See id. at 529. For the reasons that 

follow, however, we are satisfied that the district court's 

conclusion was erroneous. Thus, as the plaintiffs do not 

advance any federal right to enforce, the district court erred 

in granting relief on the basis of section 1983. 

 20 
In considering whether a regulation in itself can establish 

a right enforceable under section 1983, we initially 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 the S 1983 

remedy is intended to redress the deprivation of rights 

secured by all valid federal laws, including statutes and 

regulations having the force of law." See Guardians Ass'n, 

463 U.S. at 638, 103 S.Ct. at 3251. According to them, 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., dissenting). 

Justice O'Connor, joined by Chief Justice Rehnquist, 

Justice Powell, and Justice Scalia, wrote in dissent: 

 In the absence of any indication in the language, 

 legislative history, or administrative interpretation 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 issue 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 less 

 discretion to the PHA's in setting reasonable utilities 

 allowances, HUD understood Congress to have required 

 enforceable utility standards, apparently allows it to 

 sidestep the question. I am concerned, however, that 

 lurking behind the Court's analysis may be the view 

 that, once it has been found that a statute creates 

 some enforceable right, any regulation adopted within 

 the purview of the statute creates rights enforceable in 

 federal courts, regardless of whether Congress 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 public housing 

 tenants becomes the focal point for the creation and 

 extinguishment of federal `rights.' Such a result, where 

 determination of S 1983 `rights' has been unleashed 

 21 
 from any connection to congressional intent, is 

 troubling indeed. 

Id. 

Notwithstanding the foregoing cautionary language, the 

district court relied on Wright in holding that federal 

regulations may create rights enforceable through section 

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 public 

housing authorities to include a reasonable utility

allowance in tenants' rent. See id. at 419, 107 S.Ct. at 768. 

The defendants argued that neither the statute nor the 

regulations gave the tenants a right enforceable through 

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 amended 

 in 1981, tenants could be charged as rent no more and 

 no less than 30 percent of their income. This was a 

 mandatory limitation focusing on the individual family 

 and its income. The intent to benefit tenants is 

 undeniable. Nor is there any question that HUD 

 interim regulations, in effect when this suit began, 

 expressly required that a `reasonable' amount for 

 utilities be included in rent that a PHA was allowed to 

 charge, an interpretation to which HUD has adhered 

 both before and after the adoption of the Brooke 

 Amendment. HUD's view is entitled to deference as a 

 valid interpretation of the statute, and Congress in the 

 course of amending that provision, has not disagreed 

 with it. 

 Respondent nevertheless asserts that the provision 

 for a `reasonable' allowance for utilities is too vague 

 and amorphous to confer on tenants an enforceable 

 `right' within the meaning of S 1983 and that the whole 

 matter of utility allowances must be left to the 

 discretion of the PHA, subject to supervision by HUD. 

 The regulations, however, defining the statutory 

 concept of `rent' as including utilities, have the force of 

 law . . ., they specifically set out guidelines that the 

 22 
 PHAs were to follow in establishing utility allowances, 

 and they require notice to tenants and an opportunity 

 to comment on proposed allowances. In our view, the 

 benefits Congress intended to confer on tenants are 

 sufficiently specific and definite to qualify as 

 enforceable rights under Pennhurst [State School & 

 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 judiciary to 

 enforce. 

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

As we have indicated, the district court held, and the 

appellees argue here, that Wright stands for the proposition 

that valid federal regulations may create rights enforceable 

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 that the 

regulations create rights enforceable through section 1983. 

The district court's holding was, however, erroneous 

because, as the foregoing quotation from the Court's 

opinion makes clear, Wright dealt with an issue that differs 

from that presented in the district court and here. There, 

the Court, in finding the statute and its implementing 

regulations created a right enforceable through section 

1983, focused on tying the right to a reasonable utility 

allowance to Congress' intent to create federal rights 

through the statute. The Court looked first to the statutory 

provision creating the ceiling on tenants' rent, describing it 

as "a mandatory limitation focusing on the individual family 

and its income." Id. at 430, 107 S.Ct. at 773-74. Further, 

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 the 

regulations and found that they were entitled to deference 

_________________________________________________________________ 

7. The Court of Appeals for the Fifth Circuit recently in Banks v. Dallas 

Housing Authority, 271 F.3d 605, 2001 WL 1285391, at *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 Wright. 

 23 
as valid administrative interpretations of the statute. Id., 

107 S.Ct. at 774. It afforded this deference, however, after 

having found that Congress had conferred upon plaintiffs 

that right by statute. Id., 107 S.Ct. at 773. 

Clearly, therefore, the regulation at issue in Wright 

merely defined the specific right that Congress already had 

conferred through the statute. See id. at 430 n.11 & 431, 

107 S.Ct. at 774 & n.11 (rejecting "respondent's argument 

that the Brooke Amendment's rent ceiling applies only to 

the charge for shelter and that the HUD definition of rent 

as including a reasonable charge for utilities is not 

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"the benefits 

Congress intended to confer on tenants are sufficiently 

specific and definite to qualify as enforceable rights under 

Pennhurst and S 1983, rights that are not, as respondent 

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 right in the 

statutory provision and then relied upon the implementing 

regulations to define and interpret that right. Critically, as 

pertains to this case, Wright does not hold that a regulation 

alone--i.e., where the alleged right does not appear 

explicitly in the statute, but only appears in the regulation 

--may create an enforceable federal right. It is thus 

manifest that, inasmuch as the disparate impact 

regulations go far beyond the intentional discrimination 

interdiction in section 601, the district court's reliance on 

Wright was misplaced. 

Similarly, although also relied upon by the district court, 

none of our opinions in Alexander, Casey , or Powell nor 

that of the Court of Appeals for the Ninth Circuit in Buckley 

v. City of Redding, 66 F.3d 188 (9th Cir. 1995), justifies the 

district court's conclusion that valid regulations may create 

rights enforceable under section 1983. In Alexander, we 

held that federal regulations governing the administration 

of the Supplemental Food Program for Women, Infants and 

Children created rights enforceable under section 1983 for 

recipients of program assistance. See Alexander , 750 F.2d 

at 261. But the right enforceable through section 1983, 

 24 
namely 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 and 

nutrition programs to make supplemental food available to 

pregnant and lactating women and infants. Accordingly, the 

statute created a right to supplemental food for those 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 question of 

whether a federal regulation could create an enforceable 

section 1983 right. Instead, after stating the general rule 

that violations of federal statutes may be actionable under 

section 1983 except where Congress has foreclosed section 

1983 enforcement or the statute does not create 

enforceable rights, we simply concluded that the regulation 

created an enforceable right. See id. at 259. 

But Alexander did not involve a circumstance in which 

the regulations attempted to create a federal right beyond 

any that Congress intended to create in enacting the 

statute. Furthermore, we decided Alexander in 1984, well 

before the Supreme Court refined its analysis to focus 

directly on Congress' intent to create enforceable rights and 

to confine its holdings to the limits of that intent. 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) (same); 

Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 510, 110 S.Ct. 

2510, 2517-18 (1990) (same); Golden State Transit Corp. 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.Ct. at 

774 (focusing on Congress' intent to create rights in 

statute enforceable through section 1983, and finding 

implementing regulation defined right). Therefore, 

Alexander is distinguishable from this case. 

So, too, is Casey. There, we stated, citing only Wright and 

Alexander, that "valid federal regulations as well as federal 

statutes may create rights enforceable under section 1983." 

Casey, 885 F.2d at 18. The issue in Casey , however, was 

 25 
only whether the federal Medicaid statute, not its 

implementing regulations, created a federal right 

enforceable through section 1983. See id. at 17 ("The 

threshold issue in this case is whether [the plaintiff] can 

assert a cause of action against the defendant state officials 

under 42 U.S.C. S 1983 for alleged violation of the federal 

medicaid statute."). Therefore, our broader statement 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 section 

1983 for a violation of a regulation promulgated pursuant 

to section 602. There, the plaintiffs brought a Title VI action 

against the Commonwealth of Pennsylvania, challenging 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 whether a 

plaintiff can maintain a claim under section 1983 for a 

violation of that regulation. See id. We answered both 

questions in the affirmative, stating that section 602 and 

the Department of Education regulation at issue provided a 

private right of action, and that plaintiffs also could utilize 

section 1983 to redress defendants' alleged violation 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 included a 

private right of action. Moreover, in then authorizing the 

section 1983 action we merely rejected three specific 

arguments: (1) that the individual defendants were not 

"persons" amenable to suit under section 1983; 8 (2) that 

Title VI possessed a comprehensive enforcement scheme 

that precluded the assertion of the section 1983 claim; and 

(3) that our precedents barring certain claims under Title IX 

of the Education Amendments of 1972 should have barred 

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 argument even though 

the district court had relied on it. See Powell , 189 F.3d at 401. 

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

right enforceable under section 1983. In Powell , we 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 arises a 

`rebuttable presumption that the right is enforceable under 

S 1983.' "). Thus, while plaintiffs rely heavily on Powell, that 

reliance is misplaced, and, accordingly, quite aside from the 

impact of Sandoval, Powell could not control the outcome 

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 regulations 

created an enforceable federal statutory right under section 

1983. See Buckley, 66 F.3d at 189-90. The court, after 

analyzing the relevant statutory and regulatory language, 

held that it did. See id. at 193. Inasmuch as the court 

stated expressly that it was determining whether the federal 

statute and its implementing regulations conferred a 

section 1983 right and not whether such a right arose 

under the implementing regulations alone, Buckley is 

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 statutory 

provision.] Regulation S 966.57(b) merely interprets that 

section."); Doe v. District of Columbia, 93 F.3d 861, 867 

_________________________________________________________________ 

9. It cannot be argued plausibly that by holding in Powell that there was 

a private right of action under Title VI, we necessarily determined that 

the plaintiffs in Powell had a right enforceable under section 1983. Even 

if it could be so argued, however, the aspect of the opinion holding that 

there is a private right of action under Title VI did not survive Sandoval 

and thus the 1983 claim would not survive either. In any event, the 

district court in South Camden II did not determine that the plaintiffs 

had a right enforceable under section 1983 merely because in Powell we 

had determined that there was a private right of action enforceable 

under Title VI. Rather, the court in South Camden II made an 

independent examination of whether a section 1983 action 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 conceptually possible for 

plaintiff who is the intended beneficiary of a statute to have a S 1983 

action but not a private right of action, or vice versa . . . ." 

 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. 1993) 

(same), overruled by Blessing, 520 U.S. at 348, 117 S.Ct. at 

1363; Albiston v. Me. Comm'r of Human Servs., 7 F.3d 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) (same); 

Samuels v. District of Columbia, 770 F.2d 184, 195 (D.C. 

Cir. 1985) (same). 

There are cases in other circuits addressing the question 

of whether a regulation alone may create a right enforceable 

under section 1983. The Courts of Appeals for the Fourth 

and Eleventh Circuits concluded that they may not and the 

Court of Appeals for the Sixth Circuit decided to the 

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 of action 

under section 1983 for violations of the Social Security Act 

and its implementing regulations. After concluding that 

nothing in the statute created an entitlement to vocational 

rehabilitation services, the court addressed the plaintiff 's 

argument that the mandatory language utilized in the 

implementing regulations created such a right. See id. at 

984. The court rejected this claim, stating: 

 An administrative regulation . . . cannot create an 

 enforceable S 1983 interest not already implicit in the 

 enforcing statute. The Supreme Court has never held 

 that one could--to the contrary, members of the Court 

 have expressed doubt that `administrative regulations 

 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 affirmed the 

district court's dismissal of the plaintiff 's section 1983 

cause of action. See id.; see also Former Special Project 

Employees Ass'n v. City of Norfolk, 909 F.2d 89, 94 (4th 

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

[the statutory provision] does not provide an enforceable 

right, the [administrative regulation is] irrelevant to our 

consideration of the employee's claim under section 1983"). 

The Court of Appeals for the Eleventh Circuit reached a 

similar conclusion in Harris v. James, 127 F.3d 993 (11th 

Cir. 1997). There, the court considered whether a Medicaid 

regulation requiring states to provide non-emergency 

transportation to and from providers created a right 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 statutes 

create section 1983 causes of action. See id. at 997-1005. 

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 federal 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 dearth 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 ascertain 

whether it rejected the dissent's view of cases involving 

federal regulations, namely that administrative regulations 

alone cannot create enforceable federal rights, and found 

that it did not. See Harris v. James, 127 F.3d at 1007-08 

("We conclude that the Wright majority did not hold that 

federal rights are created either by regulations`alone' or by 

any valid administrative interpretation of a statute creating 

some enforceable right."). Therefore, the court rejected the 

argument that a " `federal right' [may be found] in any 

regulation that in its own right meets the three-prong 

`federal rights' test," as well as the argument that 

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

administrative interpretation of a statute that creates some 

enforceable right." Id. at 1008. Instead, it adopted the rule 

that: 

 [S]o long as the statute itself confers a specific right 

 upon the plaintiff, and a valid regulation merely further 

 defines or fleshes out the content of that right, 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 content of a 

 statutory provision that creates no federal right under 

 the three-prong test, or if the regulation goes beyond 

 explicating the specific content of the statutory 

 provision and imposes distinct obligations in order to 

 further the broad objectives underlying the statutory 

 provision, we think the regulation is too far removed 

 from Congressional intent to constitute a `federal right' 

 enforceable under S 1983. To hold otherwise would be 

 inconsistent with the driving force of the Supreme 

 Court precedent requiring a Congressional intent to 

 create federal rights and with the Supreme Court's 

 directive that courts must find that Congress has 

 unambiguously conferred federal rights on the plaintiff. 

Id. at 1009 (footnotes omitted). 

Applying this rule, the court concluded that the 

regulation did not define the content of any specific right 

conferred upon the plaintiffs by statute because the"nexus 

between the regulation and Congressional intent to create 

federal rights [was] simply too tenuous to create an 

enforceable right to transportation." Id. at 1009-10. Finally, 

the court stated: 

 It may be that each of these statutes creates some 

 federal right; similarly, it may be that the

 transportation regulation is a valid interpretation of 

 each of these provisions under Chevron. However, we 

 do not think these two factors, even if we found both 

 to be true, would add up to a federal right of 

 30 
 transportation. In each case the transportation 

 regulation would be valid not because it reasonably 

 defines the content of rights created by the statutory 

 provisions, as did the regulation in Wright, but only 

 because the regulation furthers the broad objectives 

 underlying each statutory provision. . . . Instead, if the 

 regulation is a valid interpretation of these provisions, 

 it would be because transportation may be a 

 reasonable means of ensuring the prompt provision of 

 assistance, comparable assistance, or choice among 

 providers. Such links to Congressional intent may be 

 sufficient to support the validity of a regulation; 

 however, we think they are too tenuous to support 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 River 

Valley Sportsman Ass'n v. City of Lakeland, 250 F.3d 1324, 

1327 (11th Cir. 2001) (applying Harris and concluding that 

"even more clearly . . . the instant regulation imposes new 

and `distinct obligations' not found in the statute itself, and 

thus is `too far removed from the Congressional intent to 

constitute a federal right enforceable under S 1983' "), cert. 

denied, 70 U.S.L.W. 3106 (Nov. 26, 2001) (No. 01-204); Doe 

v. Chiles, 136 F.3d 709, 717 (11th Cir. 1998) (utilizing 

Harris analysis and finding federal right was created 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, the court 

held that because administrative regulations have the force 

of law, they may create enforceable rights under section 

1983. See Loschiavo, 33 F.3d at 551 (citing Wright, 479 

U.S. at 431, 107 S.Ct. at 774). Accordingly, the court 

concluded that the regulation at issue created a federal 

right enforceable through section 1983. See id. at 552-53; 

see also Levin v. Childers, 101 F.3d 44, 47 (6th Cir. 1996) 

(stating Loschiavo court held "plaintiffs may use Section 

1983 to enforce not only constitutional rights, but also 

 31 
those rights defined by federal statutes [and federal 

regulations]").10 

Nevertheless, in light of the foregoing analysis, we 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 action 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' intent to 

create federal rights through the statute to the particular 

federal right claimed. See Wright, 479 U.S. at 430, 107 

S.Ct. at 774; Harris, 127 F.3d at 1008-09. It was of 

paramount importance that Congress intended to create 

such a right in the statute, with the regulation then 

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 section 1983 

jurisprudence after Wright dealing with whether a plaintiff 

is advancing an enforceable right, the primary 

consideration has been to determine if Congress intended 

to create the particular federal right sought to be enforced. 

See Suter, 503 U.S. at 357, 112 S.Ct. at 1367 (stating issue 

as "[d]id Congress, in enacting the Adoption Act, 

unambiguously confer upon the child beneficiaries of the 

Act a right to enforce the requirement that the State make 

`reasonable efforts' to prevent a child from being removed 

from his home, and once removed to reunify the child with 

his family?"). Inasmuch as the Loschiavo court's approach 

first did not examine whether Congress intended to create 

the particular right at issue, we reject its holding that a 

federal right may be found in any federal regulation 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 appeals 

_________________________________________________________________ 

10. Of course, when the issue was raised in a district court within the 

Sixth Circuit the court followed Loschiavo. See Lucero v. Detroit Public 

Sch., 160 F. Supp. 2d 767, 781-85 (E.D. Mich. 2001). 

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

regulations cannot create a federal right enforceable 

through section 1983. To the extent, if any, that Powell 

might be thought on a superficial reading to suggest 

otherwise, in the light of Sandoval we cannot regard it as 

stating controlling law. Since the time of the Supreme 

Court's decision in Sandoval, it hardly can be argued 

reasonably that the right alleged to exist in the EPA'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 section 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 reviewing the 

relevant language of section 602, the Court stated:

_________________________________________________________________ 

11. To adjudge whether an implied right of action exists under a 

particular statute, courts employ a four-factor test the Court first 

articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088 (1975). 

As the Court explained in Cannon: 

 In determining whether a private remedy is implicit in a statute 

not 

 expressly providing one, several factors are relevant. First, is 

the 

 plaintiff `one of the class for whose especial benefit the statute 

was 

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

favor of 

 the plaintiff? Second, is there any indication of legislative 

intent, 

 explicit or implicit, either to create such a remedy or to deny 

one? 

 Third, is it consistent with the underlying purpose of the 

legislative 

 scheme to imply such a remedy for the plaintiffs? 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 federal 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, 484 (1916)) (citations 

and emphasis omitted). Although not expressly, the Sandoval Court 

began, and ended, its analysis with the first factor, 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. 

 33 
 It is immediately clear that the `rights-creating' 

 language so critical to the Court's analysis in Cannon 

 of S 601, is completely absent from S 602. Whereas 

 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 provisions 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 individuals 

 who will ultimately benefit from Title VI's protection. 

 Statutes that focus on the person regulated rather 

 than the individuals protected create `no implication of 

 an intent to confer rights on a particular class 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, but 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 right of action. 

 Nor do the methods that S 602 goes on to provide for 

 enforcing its authorized regulations manifest an intent 

 to create a private remedy; if anything, they suggest 

 the opposite. . . . Whatever these elaborate restrictions 

 on agency enforcement may imply for the private 

 enforcement of rights created outside ofS 602, 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 section 602. 

See id. Rather, "S 602 limits agencies to`effectuat[ing]' 

rights already created by S 601."12 Id. 

_________________________________________________________________ 

12. It is important to note that relying upon the Sandoval Court's 

assessment of Congress' intent in enacting section 602, set forth in the 

context of determining whether there is a private right of action for the 

purposes of determining whether an enforceable right exists, does not, as 

the district court found, conflate the distinction between rights and 

remedies. See South Camden II, 145 F. Supp. 2d at 517 ("The essence of 

 34 
Inasmuch as the Court found previously that the only 

right conferred by section 601 was to be free of intentional 

discrimination, it does not follow that the right to be free 

from disparate impact discrimination can be located in 

section 602. In fact, it cannot. In sum, the regulations, 

though assumedly valid, are not based on any federal right 

present in the statute. Thus, this case is very similar to 

Smith and Harris. Here, as there, the regulations do 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 enforceable 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 subject 

to being interdicted by limitations on actions having a 

disparate impact is far broader than limitations on

intentional discrimination. Thus, we reiterate that if Title VI 

_________________________________________________________________ 

the NJDEP's and [St. Lawrence]'s misunderstanding of Sandoval lies in 

their conflation of rights with remedies in their analysis of the Supreme 

Court's holding in Sandoval."). It is true, as the district court 

repeatedly 

stated, that "[t]he holding in Sandoval is explicitly limited to the 

determination that S 602 itself does not create a right 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, that 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 utilizing the Court's 

discussion of Congress' intent in enacting Title VI, although raised in 

the 

context of whether Congress intended a remedy through section 602 

directly, to help it discern whether Congress intended 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 the factor common to 

both. 

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

Congress should take it there. 

We emphasize that the implications of this case are

enormous and obviously, as the appearance of the many 

amici curiae attests, have not been lost on interested 

parties. It is plain that in view of the pervasiveness of state 

and local licensing provisions and the likely applicability of 

Title VI to the agencies involved, the district court's opinion 

has the potential, if followed elsewhere, to subject vast 

aspects of commercial activities to disparate impact 

analyses by the relevant agencies. Indeed, we noted in 

Powell that "[a]t least 40 federal agencies have adopted 

regulations that prohibit disparate-impact discrimination 

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, then 

Congress and not a court should say so as a court's

authority is to interpret rather than to make the law.13 

IV. CONCLUSION 

We sum up our conclusions as follows. The Supreme 

Court's primary concern in considering enforceability of 

federal claims under section 1983 has been to ensure 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. Accordingly, we 

hold that a federal regulation alone may not create a right 

_________________________________________________________________ 

13. St. Lawrence and NJDEP raise numerous other procedural and 

substantive arguments in support of their appeals. In view of our result, 

with one exception, we do not address them as the appeal is only from 

the granting of preliminary injunction that we are reversing on other 

grounds. Nevertheless, it is possible that on further proceedings the 

issues involved in those arguments may be significant 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 Amendment bars this 

action to the extent that it "prohibits the retrospective revocation of 

[St. 

Lawrence's] air permit." Br. at 44. We are constrained 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 careful consideration, we 

have concluded that the argument is without merit, and we therefore 

reject it without discussion. 

 36 
enforceable through section 1983 not already found in the 

enforcing statute. Similarly, we reject the argument that 

enforceable rights may be found in any valid administrative 

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 be free from 

disparate impact discrimination and that while the EPA's 

regulations on the point may be valid, they nevertheless do 

not create rights enforceable under section 1983. The 

district court erred as a matter of law in concluding 

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 relief and 

will remand the case to the district court for further 

proceedings consistent with this opinion. 

 37 
McKEE, 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 potentially 

adverse disparate impact of air permits that St. Lawrence 

needs to operate the proposed facility.1 

The majority's decision to reverse the district court's 

grant of preliminary injunctive relief is based upon my 

colleagues' conclusion that the district court erred"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 determining 

if plaintiffs have established "a reasonable probability of 

succeeding on the merits. . . ." ACLU v. Reno , 217 F.3d 

162, 173 (3d Cir. 2000) (emphasis added). We need look no 

further than our recent decision in Powell v. Ridge, (3d Cir.) 

cert denied, 528 U.S. 1046 (1999) to find the answer to that 

question. The majority correctly notes that the Supreme 

Court's subsequent decision in Alexander v. Sandoval, 531 

U.S. 1049 (2001), overruled part of our holding in Powell. 

However, Powell was not overruled in its entirety until 

today. Ironically, the majority overrules Powell by engaging 

in an analysis that overreads Sandoval while cautioning 

that "Powell, . . . should not be overread." Maj. Op. at 26. 

Accordingly, I respectfully dissent from the decision of my 

colleagues. 

I. 

Before beginning my discussion I think it is important to 

define the parameters of our inquiry. First, "we must affirm 

unless we find the [district] court abused its discretion, 

_________________________________________________________________ 

1. The extent to which plaintiffs have already suffered a disparate impact 

of pollution is readily apparent from the factual summary set forth by 

the majority. See Maj. Op. at 10 ("As a result, 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 code."). 

 38 
committed an obvious error of law, or made a serious 

mistake in considering proof." Bill Blass, Ltd v. SAZ Corp, et 

al, 751 F.2d 152, 154 (3rd Cir. 1984) (emphasis added). 

Our analysis is not driven by factual issues. Accordingly, 

our inquiry turns on whether the district court committed 

an "obvious error of law." If it committed such an error, it 

abused its discretion in granting preliminary relief. If it did 

not commit such an error, preliminary relief was 

appropriate, and we must affirm. Second, there is no issue 

about the validity of the applicable regulations enacted 

pursuant to 42 U.S.C. S 602. The majority assumes they 

are valid, just as the Supreme Court did in Sandoval. Third, 

 it has long been the rule in this Circuit that decisions 

 made in similar cases by panels of this Court are 

 binding on other panels . . . . [i]t is only through the 

 Court En Banc that precedents established by earlier 

 [published] panel decisions may be reexamined. 

In the Matter of The Central Railroad Co. of New Jersey, 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, Maj. Op. at 

14, because the disparate impact regulations plaintiffs seek 

to enforce are "too far removed from Congressional intent to 

constitute a `federal right' enforceable underS 1983." Id. at 

35. Based upon that analysis, the majority concludes that 

plaintiffs have no reasonable probability of success on the 

merits and are therefore not entitled to injunctive relief. 

This analysis not only ignores controlling precedent, 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, subjects, or 

 causes to be subjected, any citizen of the United States 

 or other person within the jurisdiction thereof to the 

 39 
 deprivation of any rights, privileges, or immunities 

 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 excluded from 

 participation in, be denied the benefits of, or be 

 subjected to discrimination under any program or 

 activity receiving Federal financial assistance. 

42 U.S.C. S 2000d. The Supreme Court has held that S 601 

only reaches intentional discrimination. See Sandoval, 121 

S. Ct. at 1516. However, S 602 authorizes federal regulatory 

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 assistance to 

 any program or activity, by way of grant, loan, or 

 contract other than a contract of insurance or 

 guaranty, is authorized and directed to effectuate the 

 provisions of section 2000d [Section 601] of this title 

 with respect to such program or activity by issuing 

 rules, regulations, or orders of general applicability 

 which shall be consistent with achievement of the 

 objectives of the statute authorizing financial 

 assistance in connection with which the action is 

 taken. 

Id. S 2000d-1. The regulations at issue here were 

promulgated under S 602 and they proscribe discrimination 

that results from the disparate impact of certain activity. 

The Environmental Protection Agency is not alone in

promulgating disparate-impact regulations underS 602. In 

Powell we noted that "[a]t least 40 federal agencies have 

adopted regulations that prohibit disparate-impact 

discrimination pursuant to this authority." 189 F.3d at 

393. 

We held in Powell, that the plaintiffs there could 

maintain an action under S 1983 to enforce disparate 

impact regulations promulgated under S 602 by the 

 40 
Department of Education that are virtually identical to the 

regulations promulgated by the Environmental Protection 

Agency that are at issue here.2 Plaintiffs in Powell brought 

an action against state officials challenging the funding 

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 upon its 

conclusion that the plaintiffs did not "adequately allege that 

a specific element of the Commonwealth's funding practices 

adversely and disproportionately affects students of a 

particular race." 189 F.3d at 393. On appeal, the 

defendants asserted an alternative ground for upholding 

the district court. They argued that the Title VI regulations 

did not provide an enforceable right. We resolved that 

inquiry by applying the four prong test established in Cort 

v. Ash, 422 U.S. 66 (1975), and a similar inquiry set forth 

in Angelastro v. Prudential-Bache Securities, Inc. 764 F.2d 

939 (3d Cir. 1985). See Powell. 189 F.3d at 397 ("It is by 

now well established that implication of a private right of 

action for a statute requires analysis of the factors set forth 

in Cort v. Ash."). We concluded that Title VI afforded 

plaintiffs a right to enforce the prohibition against disparate 

impact discrimination contained in the regulations 

promulgated pursuant to S 602 of Title VI. We stated: 

 The regulation at issue here, although promulgated by 

 the Department of Education under 602 of Title VI, 

 implements S 601 of Title VI. The Supreme Court 

 precedent and our cases firmly establish that S 601 of 

 Title VI gives rise to an implied right of action, at least 

 for our purposes for securing injunctive relief. 

189 F.3d at 399. We also concluded that the remaining 

prongs of the relevant inquiry were satisfied and held that 

_________________________________________________________________ 

2. The regulation at issue in Powell was codified at 34 C.F.R. 

S 100.3(b)(2) and it prohibited recipients of applicable federal funds 

from 

"utilizing criteria or methods of administration which have the effect of 

subjecting individuals to discrimination because of their race, color, 

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

 41 
plaintiffs had therefore established "an implied private right 

of action to enforce the regulations promulgated under 602 

of Title VI." Id. There is no question that that portion of our 

holding can not stand after the Supreme Court's 

pronouncement in Sandoval. That was the precise issue 

addressed in Sandoval and Powell was rendered a dead 

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 the court 

in Powell. 

In Powell, we explained: "[p]laintiffs' second count 

invokes one of the Civil Rights Acts, 42 U.S.C.S 1983 to 

address the defendants' alleged violation of the regulation." 

Id. We concluded that inasmuch as the complaint sought 

only injunctive and declaratory relief defendants were 

"persons acting under color of state law" under S 1983. Id. 

at 401. We then cited Blessing v. Freestone, 520 U.S. 329 

(1997) in stating that "once a plaintiff has identified a 

federal right that has allegedly been violated, there arises a 

rebuttable presumption that the right is enforceable under 

S 1983.' " 189 F.3d at 401. Inasmuch as the relevant 

statute did not explicitly foreclose a suit underS 1983, and 

since that statute clearly lacked a "comprehensive 

enforcement scheme that is incompatible with individual 

enforcement under S 1983," we concluded that plaintiffs 

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 holding 

to minimize the effect of what we said. My colleagues state: 

"Powell did not analyze the foundation issue that is central 

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

enforceable under section S 1983. In Powell we seemed 

simply to assume for section 1983 purposes that it could." 

Maj. Op. at 26-27. My colleagues then cite to Powell at 401 

and note that we there stated, "Once a plaintiff has 

identified a federal right that has allegedly been violated, 

there arises a `rebuttable presumption that the right is 

enforceable under S 1983." Maj. Op. 27. I am frankly 

astounded by that analytical alchemy. The rebuttable 

 42 
presumption we referred to in Powell arises not because we 

"assumed" a cause of action under S 1983, but precisely 

because we held there was a cause of action under S 1983. 

See Blessing, 520 U.S. at 1359. In Blessing , the Court was 

asked to determine if a plaintiff could enforce a right under 

S 1983. That was the issue, and it was the only issue. The 

Court stated, "We granted certiorari to resolve disagreement 

among the Courts of Appeals as to whether individuals may 

sue state officials under S 1983 for violations of Title IV-D." 

Id. at 339-40. The Court began that inquiry by citing Maine 

v. Thiboutot, 448 U.S. 1 (1980), wherein the Court had held 

that S 1983 provided a remedy for violations of federal 

rights, not federal laws. The Blessing Court could not have 

been clearer in stating: "[i]n order to seek redress through 

S 1983, however, a plaintiff must assert the violation of a 

federal right, not merely a violation of federal law." Blessing, 

520 U.S. at 340 (emphasis in original). The Court then 

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 established 

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 nature of 

the relevant statutory scheme. Blessing, 520 U.S. at 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 defendant 

can establish that Congress expressed its intent (explicitly, 

or implicitly through the statutory scheme), that the statute 

not be enforceable under the general rubric of S 1983. 

It is true, as the majority notes, that much of our

discussion in Powell was worded in terms of refuting 

defendant's assertion that plaintiffs could maintain a cause 

of action. The majority notes: that "[Powell ] merely rejected 

. . . specific arguments. But Powell did not analyze 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 can not 

withstand even a cursory reading of Powell. The fact that 

we "merely rejected" defendant's arguments that S 1983 

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

regulations does not negate the fact that the result of 

refuting those arguments was that we found plaintiffs had 

a cause of action under S 1983, and that was part of our 

holding. The majority's attempt to suggest the contrary is 

tantamount to arguing that "merely rejecting" the argument 

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 the 

application of S 1983 is even more puzzling when one 

considers that the majority's own analysis states that the 

relevant presumption does not arise unless the plaintiff can 

establish a federal right has been violated. My colleagues 

quite correctly state: "If a plaintiff . . . establishes and 

identifies a federal right that allegedly has been violated, a 

rebuttable presumption that the right is enforceable 

through section 1983 arises." Maj. Op. at 18 (citing 

Blessing). Therefore, the majority clearly recognizes that 

Powell concluded that the plaintiffs there had a federal 

right, arising from the regulations promulgated under Title 

VI, and that the right could be enforced under S 1983 

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 rebut the 

presumption. Moreover, the majority here correctly 

concedes that that was part of our holding in Powell, even 

while attempting to transform the holding into a mere 

assumption. See Maj. Op. at 13 ("In reaching its result the 

[district] court relied, inter alia on Powell v. Ridge, in which 

we held that there was a private right of action available to 

enforce a regulation implementing 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.") (emphasis added); 

see also Maj. Op. at 26 ("We answered both questions in 

the affirmative, stating that section 602 and the 

Department of Education regulation at issue provided a 

private right of action, and that plaintiffs could utilize 

section 1983 to redress defendant's alleged violation of the 

statute and regulation.") (emphasis added). As noted above, 

it is clear that the first part of our holding in Powell does 

 44 
not survive Sandoval. However, that is simply not true of 

the second part of the holding. Sandoval never discussed 

the S 1983 issue. 

In Sandoval, plaintiffs brought a class action against the 

Alabama Department of Public Safety in an attempt to 

enjoin the Department from administering drivers license 

examinations only in English. Plaintiffs alleged that 

administering the test in English to Spanish speaking 

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 decisions, 

Congress' amendments to Title VI, "and from the parties' 

concessions that three aspects of Title VI must be taken as 

given." 121 Sup. Ct. at 1516. These were that private 

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 regulations 

promulgated under S 602 of Title VI may validly proscribe 

activities that have a disparate impact on racial groups, 

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 observed that 

five justices of the Court had previously, in Guardians 

Association v. Civil Serv. Comm'n of New York City , 463 

U.S. 582 (1983), voiced that latter principle "at least as 

alternative grounds for their decisions." Sandoval 121 S.Ct 

at 1517. Justice Scalia noted that that position was"in 

considerable tension with the rule of Bakke3 and Guardians 

that S 601 forbids only intentional discrimination. . . ." Id. 

However, inasmuch as the plaintiffs in Sandoval had not 

challenged the regulations and had asserted a claim only 

under S 601, the Court, "for the purposes of deciding this 

case" assumed that the regulations proscribing disparate 

impact discrimination "are valid." Id. at 1517. 

The question before the Court was, therefore, a very 

narrow one. The only issue was whether S 602 created a 

free standing private cause of action to enforce regulations 

_________________________________________________________________ 

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

 45 
precluding disparate impact discrimination. As noted 

above, that was the only question that the Court granted 

certiorari to review. The Court answered that narrow 

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 regulations 

 promulgated under S 602. We therefore hold that 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 district 

court's injunction here. The majority does so even while 

noting that the Court in Sandoval cautioned that "this 

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 issue into 

that case that was not raised by the parties and not 

decided by the Court. 

The issue here, simply stated, is whether S 1983 provides 

an independent avenue to enforce disparate impact 

regulations promulgated under S 602 of Title VI. That 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. Powell 

therefore controls our inquiry here until overruled by the 

Supreme Court, or this court sitting en banc. See Central 

Railroad, 485 F.2d at 210. Clearly, the majority's decision 

is not based on any determination of the en banc court. 

Just as clearly, it is not based upon the holding in 

Sandoval, or Powell. 

The majority reasons that inasmuch as the Sandoval 

majority did not find the requisite Congressional intent 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, particularly in 

light of Sandoval, Congress did not intend by adoption of 

Title VI to create a federal right to be free from disparate 

impact discrimination and that while the EPA's regulations 

 46 
on 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 whether 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 Congress 

 intended to create the private remedy asserted for the 

 violation of statutory rights. The test reflects a concern, 

 grounded in separation of powers, that Congress rather 

 than the courts controls the availability of remedies for 

 violations of statutes. Because S 1983 provides an 

 alternative source of express congressional authorization 

 of private suits, these separation-of-powers concerns are 

 not present in a S 1983 case. Consistent with this view, 

 we recognize an exception to the general rule that 

 S 1983 provides a remedy for violation of federal 

 statutory rights only when Congress has affirmatively 

 withdrawn the remedy. 

Wilder v. Virginia Hospital Assoc., 496 U.S. at 508 n.9 

(1990) (emphasis added) (internal citations and internal 

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 grounds 

that Powell only assumed plaintiffs there had an actionable 

S 1983 claim so too we must distinguish Sandoval--a case 

_________________________________________________________________ 

4. Blessing requires, as its first element, that "Congress must have 

intended that the provision in question benefit the plaintiff." Blessing, 

520 U.S. at 340. The Sandoval Court, on the other hand, asked in its 

private right of action inquiry, "whether it[section 602] displays an 

intent to create not just a private right but also a private remedy." 

Sandoval, 121 S.Ct. at 1519. 

 47 
which is even one step more removed than Powell from the 

appropriate inquiry--as Sandoval did not even address 

S 1983 to begin with. 

Although my colleagues recognize in a footnote that the 

four justices who dissented in Sandoval believed that 

litigants could still bring a S 1983 cause of action for 

violation of a Title VI disparate-impact regulation, the 

majority fails to give that fact the significance it deserves. 

See Maj. Op. at 17 n.5. The dissenting justices responded 

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 relief 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 regulations against 

 state actors in all likelihood must only referenceS 1983 

 to obtain relief; indeed, the plaintiffs in this case . . . 

 presumably retain the option of rechallenging 

 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 noted 

that 

 Defendants' argument conflicts with the Supreme 

 Court's own pronouncements. As previously noted, in 

 Guardians five of the nine justices agreed that 

 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 thereafter 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 unjustifiable 

 disparate impact on minorities could be redressed 

 through agency regulations designed to implement the 

 purposes of Title VI."). Obviously, the Supreme Court 

 did not believe that administrative regulations that 

 prohibit disparate impact were an impermissible 

_________________________________________________________________ 

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

 48 
 creation of substantive law, even though in its own 

 earlier opinion in Guardians the Supreme Court had 

 held that Title VI itself did not extend that far. 

189 F.3d at 399-400. 

Moreover, Supreme Court precedent affords additional 

support for the plaintiffs' claim here. In Wright v. City of 

Roanoke Redevelopment & Hous. Auth., supra , the plaintiffs 

brought an action under S 1983 to enforce regulations that 

defined "rent" under the relevant statute. Defendants 

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 argument 

the Supreme Court proclaimed that "[t]he regulations . . . 

have the force of law." 479 U.S. at 431. 

The majority attempts to distance the instant inquiry 

from the analysis in Wright by arguing that the Court there 

first examined the relevant statute and concluded that the 

statute, itself, conferred the right plaintiffs were seeking to 

enforce under S 1983. Only upon making that 

determination, argues the majority, did the Court then 

conclude that the relevant regulations could properly 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 can not 

independently afford the relief that Congress did not 

provide for in the controlling statute. Maj. Op. at 24. 

It is true that the Court in Wright ordered its analysis as 

the majority suggests. However, the Court stated that the 

regulation had the force of law as part of its Blessing 

analysis. Significantly, the Court applied that analysis not 

to the provisions of the statute, but to the regulation itself. 

Accordingly, Wright is consistent with, and supports, the 

plaintiffs' position here that the regulations themselves may 

give birth to a federal right so long as the regulations are 

valid. 

In addition, the Supreme Court later interpreted Wright 

as finding an enforceable right in the interrelationship 

between the regulations and underlying statute. See Wilder, 

496 U.S. at 511 ("[I]n Wright, we found that the [statute] 

. . . and its implementing regulations did create rights 

 49 
enforceable 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 ("It is clear 

that 7 C.F.R. S 246.24 created an enforceable right on 

behalf of [plaintiffs] to be informed of the availability of fair 

hearings."). The majority attempts to reconcile today's 

opinion with Polk by stating that the right identified there 

could be "traced to and was consistent with the statute". 

Maj. op. at 25. We ought not dismiss Polk so easily

however, given our pronouncement in Powell. Although we 

did not cite Polk in Powell, we were clearly aware of the Polk 

analysis, and it is consistent with our result in Powell. 

Furthermore, although Polk was decided before Blessing, it 

is clear that the analysis in Polk is consistent with a 

Blessing analysis, and the focus upon congressional intent. 

See Polk, 750 F.2d at 259 ("The provision was intended 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 VI. The 

majority focuses on the fact that S 601 proscribes only 

intentional discrimination. Nevertheless, disparate-impact 

regulations may very well reflect an agency's practical 

considerations and definition of discrimination, just as 

"rent" was defined by the Department of Housing and

Urban Development in the regulations in Wright . We cannot 

invalidate that regulatory definition without invalidating 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 contrary 

pronouncements as "dicta," the majority dismisses our 

decision in West Virginia Univ. Hospitals v. Casey, 885 F.2d 

11 (3rd Cir. 1989) as "dicta." Maj. op. at 26. In Casey, we 

interpreted Wright and Polk as standing for the proposition 

that regulations, as well as statutes, can create rights that 

are enforceable under S 1983. There we stated,"valid 

_________________________________________________________________ 

6. Although the majority snipes at the disparate-impact regulations, my 

colleagues concede they are valid for purposes of the instant analysis. 

 50 
federal regulations as well as federal statutes may create 

rights enforceable under section 1983," and we cited 

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 majority 

states. However, I think it noteworthy that my colleagues so 

readily dismiss statements from our own jurisprudence as 

"dicta" while relying upon dicta from cases that support 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 holdings 

in Harris and Smith, which we believe the courts of appeals 

decided correctly"). 

Of course, whether or not the plaintiffs would ultimately 

prevail on the merits is not the issue before us today. 

However, given controlling precedent in Powell I frankly fail 

to see how we can conclude that their chances of prevailing 

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 promulgated 

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 majority 

 were arguably divided over the mechanism for which 

 private parties might seek such injunctive relief. 

121 Sup. Ct. at 1527. 

Conclusion 

Accordingly, for the reasons set forth herein, I 

respectfully dissent from the decision of the majority. I do 

readily concede that, given the pronouncements in 

Sandoval, the majority's opinion here has some force. 

However, the majority's opinion can not withstand scrutiny 

given Powell, as well as other cases that were not overruled 

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

correct in concluding that plaintiffs can demonstrate 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 

_________________________________________________________________ 

7. Inasmuch as the majority's analysis is limited to the first prong of 

the 

four part test for upholding a preliminary injunction I have not 

discussed whether plaintiffs have shown that they will be irreparably 

harmed by the denial of relief, whether granting the 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) citing ACLU v. Blackhorse 

Pike Regional Bd. Of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en 

banc)). 

 52