Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval and Gonzaga

There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. Section 1983. In 1987, in Wright v. City of Roanoke, the Supreme Court held that a statute and regulations interpreting the statute could create enforceable rights under Section 1983, but left unclear to what extent it had relied on the regulations alone to reach this conclusion. The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through Section 1983. Concluding that only Congress by enacting a statute may create an individually enforceable right, however, the Third, Fourth, and Eleventh Circuits have held that an agency regulation cannot create an individual federal right enforceable through Section 1983. Most recently, in 2003, the Ninth Circuit in Save Our Valley v. Sound Transit held that valid agency regulations alone could not establish individual rights enforceable through Section 1983 because only Congress may establish enforceable rights through statutes, although one judge disagreed in a partial dissent. By contrast, during 2003, the First Circuit in Rolland v. Romney acknowledged that regulations by themselves could not establish enforceable rights, but the court concluded that an agency's regulations interpreting a statutory right could clarify a right so that it is sufficiently definite to be enforceable through a Section 1983 suit. In Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., the Supreme Court in 1984 stated that courts should give significant deference to agency regulations that provide a reasonable interpretation of an ambiguous statute or fill a "gap" in a silent statute, at least in those cases in which Congress has delegated to the agency the authority to issue regulations that "carry the force of law." In 2001, in Alexander v. Sandoval, the Court concluded that a private right of action must be based on rights established in the statute and may not arise from regulations alone, declaring "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." The Court suggested that regulations alone may not establish individual rights, observing "it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself." Although declining to apply Chevron deference in that case because the disparate impact regulations were broader than the statute's ban on intentional discrimination, Justice Scalia acknowledged in Sandoval that "regulations, if valid and reasonable, authoritatively construe the statute itself." In 2002, in Gonzaga Univ. v. Doe, the Court concluded that individual rights enforceable through Section 1983 are similar to implied rights of action because courts are required to "determine whether Congress intended to create a federal right." Because the Court held in Sandoval that only Congress can create implied rights of action, the Gonzaga decision suggests that only Congress can create rights enforceable through Section 1983 and that regulations alone may not. The Gonzaga decision did not directly resolve, however, whether and to what extent regulations may interpret rights implicit in a statute. Although acknowledging that special care is required in evaluating the authority of agency regulations purporting to establish individual rights, this Article argues that courts should defer to agency regulations that clarify or further define individual rights reasonably implicit in a statute without contradicting the central underlying principle in Sandoval and Gonzaga that Congress alone possesses the legislative authority necessary to create individual rights in a statute. The First Circuit's Romney decision is a good example of a court using agency regulations to clarify the scope of a right that Congress clearly intended to create in a statute, but had appropriately chosen to delegate the details of implementation to an agency. Where Congress mandates or clearly implies that it is delegating to an agency the authority to issue regulations implementing an individual right that Congress intends to create on behalf of a class of individuals then the agency's interpretation of the statutory "rights" contained in its regulations are presumptively enforceable through Section 1983.