                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2004

Three Rivers Center v. Housing Auth Pgh
Precedential or Non-Precedential: Precedential

Docket No. 03-4356




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                         PRECEDENTIAL                    (Filed: August 30, 2004)

   UNITED STATES COURT OF                        Stephen F. Gold (Argued)
APPEALS FOR THE THIRD CIRCUIT                    125 South Ninth Street, Suite 700
                                                 Philadelphia, PA 19107

              No. 03-4356                        Mark J. Murphy
                                                 Robin Resnick
                                                 Disabilities Law Project
   THREE RIVERS CENTER FOR                       1315 Walnut Street, Suite 400
INDEPENDENT LIVING, INC.; DANA                   Philadelphia, PA 19107-4798
 WASHINGTON, on behalf of herself
   and all others similarly situated,            David Kahne
                                                 P.O. Box 66386
               Appellants                        Houston, TX 77266

                    v.                           Paul O’Hanlon
                                                 Disabilities Law Project
 HOUSING AUTHORITY OF THE                        1901 Law & Finance Building
  CITY OF PITTSBURGH; KEITH                      429 Fourth Avenue
KINARD, in his official capacity as the          Pittsburgh, PA 15219-1505
 Executive Director of the HOUSING
  AUTHORITY OF THE CITY OF                              Counsel for Appellants
           PITTSBURGH
                                                 Susan A. Yohe (Argued)
                                                 Buchanan Ingersoll P.C.
                                                 One Oxford Centre
   On Appeal from the United States              310 Grant Street, 20 th Floor
District Court for the Western District of       Pittsburgh, PA 15219-1410
              Pennsylvania
     (Dist. Court No. 02-cv-01069)                      Counsel for Appellee
    District Judge: Hon. Terrence F.
                McVerry

                                                       OPINION OF THE COURT
         Argued: May 12, 2004

   Before: NYGAARD, MCKEE and                    CHERTOFF, Circuit Judge
      CHERTOFF, Circuit Judges
                                                        This is a suit seeking declaratory

                                             1
and injunctive relief compelling the              enforce a legislative or regulatory
Housing Authority of the City of                  mandate. For the following reasons, we
Pittsburgh to comply with regulations the         will affirm the denial of a right of action to
Department of Housing and Urban                   enforce the regulations.
Development promulgated pursuant to
                                                                        I.
Section 504 of the Rehabilitation Act. The
regulations require the Pittsburgh Housing                Section 504 of the Rehabilitation
Authority to effect certain systemic              Act of 1973 is commonly referred to as the
reforms in order to provide accessible            “civil rights bill of the disabled,” ADAPT
public housing to handicapped individuals.        v. Skinner, 881 F.2d 1184, 1187 (3d Cir.
They require, among other things, that five       1989) (en banc), or the “cornerstone of the
percent of the dwelling units in any newly        civil rights movement of the mobility-
constructed public housing project be             impaired.” Id. at 1205 (Mansmann, J.,
accessible to persons with ambulatory             concurring in part and dissenting in part).
disabilities and an additional two percent        Generally, the statute “prohibits any
of the units be accessible to persons with        program or activity receiving federal funds
hearing or vision impairments.                    from discriminating against persons with
                                                  disab ilities.” Bow ers v. National
          The Housing Authority—and this
                                                  Collegiate Athletic Ass’n, 346 F.3d 402,
appears to be undisputed—has continually
                                                  432 (3d Cir. 2003). It provides:
failed to comply with HUD’s regulations.
Plaintiffs allege that, as a result, the                 No otherwise qualified
Pittsburgh Housing Authority has denied                  individual with a disability
accessible housing to disabled individuals.              in the United States . . .
As troubling as this may be, however, our                shall, solely by reason of her
task here is to determine whether                        or his disability, be excluded
appellants may properly maintain a suit to               from the participation in, be
enforce the HUD regulations, by way of                   denied the benefits of, or be
either a private right of action under the               subjected to discrimination
Rehabilitation Act or under Section 1983.                under any program or
There are certainly steps HUD itself can                 activity receiving Federal
and should take to effect compliance. But                financial assistance or under
the District Court partially dismissed                   any program or activity
a p p e llants’ com plaint because it                    conducted by any Executive
determined that they did not have a private              agency or by the United
right of action to enforce the HUD                       States Postal Service.
regulations.
      Our analysis requires a careful
review and discussion of the law
governing when private parties can sue to

                                              2
29 U.S.C. § 794(a).1                               C.F.R. § 8.23(b)(1). 3
       HUD promulgated regulations to                     In addition, accessible dwelling
effectuate Section 504 in 1988. The                units must, to the “maximum extent
provisions that address accessibility in           feasible,” be distributed throughout
public housing projects and facilities             projects. 24 C.F.R. § 8.26. And they must
appear among the regulations at 24 C.F.R.          “be available in a sufficient range of sizes
§§ 8.20-33.                                        and amenities so that a qualified individual
                                                   with handicaps’ choice of living
        When a public housing authority
                                                   arrangements is, as a whole, comparable to
that receives federal funds constructs new
                                                   that of other persons eligible for housing
housing or “substantially alters” existing
                                                   assistance under the same program.” Id.
housing,2 the HUD regulations require that
five percent of the dwelling units in those               Because the Pittsburgh Housing
facilities be accessible to persons with           Authority receives federal funding through
mobility disabilities and two percent be           HUD, it is subject to Section 504's
accessible to persons with hearing or              requirements. The Housing Authority has
vision impairments. See 24 C.F.R. §§               altered existing facilities and built new
8.22(a)-(b), 8.23(a). When one or more             ones since the time the HUD regulations
dwelling units in an existing facility are         went into effect, but it failed to satisfy the
altered—but the alterations do not rise to         obligations the regulations impose.4
the level of “substantial alterations”—the
units must be made accessible to the
mobility impaired, until five percent of the              3
units in the facility are accessible. See 24                The regulations allow HUD, upon
                                                   request, to prescribe a higher percentage or
                                                   number than the regulations addressing
                                                   newly-constructed and altered housing
                                                   require, “based upon demonstration to the
       1
          The Rehabilitation Act’s other           reasonable satisfaction of HUD of a need
provisions serve similar ends. Section 501         for a higher percentage or number, based
prohibits employment discrimination based          on census data or other available current
on disability by federal agencies. See 29          data . . . or in response to evidence of a
U.S.C. § 791. Section 503 prohibits                need for a higher percentage or number
employment discrimination by federal               received in any other manner.” 24 C.F.R.
contractors and grantees. See 29 U.S.C. §          §§ 8.22(c), 8.23(b)(2).
793.
                                                          4
                                                            Since this case reaches us upon the
       2
           “Substantial alterations” are           District Court’s disposition of a motion to
alterations that cost 75% or more than the         dismiss under Federal Rule of Civil
replacement cost of the completed facility.        Procedure 12(b)(6), we relate the facts as
24 C.F.R. § 8.23(a).                               set forth in plaintiffs’ complaint.

                                               3
        As a consequence of the Housing             Three Rivers expends considerable effort
Authority’s failure to comply with the              assisting people with disabilities in trying
HUD regulations, the demand for                     to locate accessible housing.
accessible public housing in Pittsburgh
                                                            In June of 2002, Washington and
exceeds the supply. Indeed, in 1995 the
                                                    Three Rivers filed the present suit against
Housing Authority signed a “Voluntary
                                                    the Pittsburgh Housing Authority and its
Compliance Agreement” with HUD
                                                    Executive Director, Keith Kinard, in his
acknowledging “compliance deficiencies”
                                                    official capacity. They seek an order
and “civil rights deficiencies.” It conceded
                                                    declaring the Pittsburgh Housing Authority
the need for at least 546 accessible rental
                                                    in violation of the HUD regulations and
units, and it promised to provide them. In
                                                    enjoining the Housing Authority to comply
return, HUD agreed to continue to provide
                                                    with them.6 Specifically, plaintiffs seek to
the Housing Authority with federal
funding. By the Housing Authority’s own
admission, however, there were only 200
units accessible to people in wheelchairs           alia, promote “equal access of individuals
as of March 2002.                                   with significant disabilities to society and
                                                    to all services, programs, activities,
       As a result, when Dana Washington            resources, and facilities, whether public or
applied for public housing in 2001, the             private and regardless of the funding
Housing Authority assigned her to a unit            source.” 29 U.S.C. § 796f-4(b)(1)(D).
with stairs even though she suffers from
                                                           6
near-paralysis of her lower left limb and                      In their complaint, plaintiffs
must use a wheelchair. When Washington              sought to represent a class of “all people
complained about the assignment, the                with disabilities who currently, or in the
Housing Authority re-assigned her to                future, will live in public housing
another unit. But again the sink and                [maintained by the Pittsburgh Housing
bathtub in the newly-assigned unit were             Authority] that is not accessible . . . as well
inaccessible to Washington.                         as all people with disabilities who
                                                    currently are, or in the future, will be, on
        Similarly, Three Rivers Center for
                                                    the waiting list for . . . public housing.”
Independent Living, Inc. (“Thre e
                                                    App. 12. The docket entries from the
Rivers”)—a non-profit corporation that
                                                    District Court indicate that although
advocates for the rights of individuals with
                                                    plaintiffs moved for class certification and
disabilities—reports that many of its
                                                    the issue was briefed, the parties filed a
clients have a hard time finding accessible
                                                    joint motion asking the District Court to
and affordable housing.5 Consequently,
                                                    “hold i n a b e ya n c e C e r t if icati o n
                                                    Activities.” App. 5. The District Court
                                                    granted the motion and as a result it never
       5
         Three Rivers is a federally-funded         ruled on the motion for class certification.
entity that is statutorily required to, inter       We therefore treat the present suit as an

                                                4
enforce four requirements: (1) that a              plaintiffs’ complaint “to the extent that it
specific percentage of newly constructed           seeks relief for the violations of
public housing be accessible to the                regulations promulgated by [HUD] to
disabled, see 24 C.F.R. § 8.22(a)-(b); (2)         implement § 504 of the Rehabilitation
that a specific percentage of substantially-       Act.” App. 25. They argued that plaintiffs
altered public housing be accessible to the        did not have a private right of action to
disabled, see 24 C.F.R. § 8.23(a); (3) that        enforce the regulations because the
altered (but not substantially altered)            regulations “are too far removed from
public housing be made accessible until at         Congressional intent as reflected in § 504
least five percent of the units are                to constitute ‘federal rights’ privately
accessible, see 24 C.F.R. § 8.23(b)(1); and        enforceable under either § 504 or § 1983.”
(4) that accessible housing be distributed         App. 26-27. The District Court granted
throughout projects and comparable to              defendants’ motion, relying largely on our
housing available to non-disabled                  opinion in South Camden Citizens in
individuals, see 24 C.F.R. § 8.26.7                Action v. New Jersey Dep’t of Envtl. Prot.,
                                                   274 F.3d 771 (3d Cir. 2001), cert. denied,
       Defendants    moved     to   dismiss
                                                   536 U.S. 939 (2002) and the Supreme
                                                   Court’s decision in Alexander v. Sandoval,
                                                   532 U.S. 275 (2001). Plaintiffs timely
individual action brought by Washington            appealed.8
and Three Rivers.
                                                                       II.
       7
          In their complaint, appellants
                                                           The District Court, which exercised
based their claims on other portions of the
                                                   its jurisdiction under 28 U.S.C. §§ 1331
HUD regulations—specifically, 24 C.F.R.
                                                   and 1343, did not dismiss plaintiffs’
§ 8.24(a) (addressing a ccessibility
                                                   complaint in its entirety.      Rather, it
requirements in existing, non-altered
                                                   dismissed the complaint only insofar as
housing), 24 C.F.R. § 8.25(c) (requiring
                                                   plaintiffs sought to enforce the HUD
housing authorities to promulgate and
                                                   regulations. The Court was of the opinion,
implement a “needs assessment” and
                                                   however, that the partial dismissal
“transition plan”), and 24 C.F.R. § 8.27(a)
                                                   involved a controlling question of law as
(requiring housing authorities to make
                                                   to which there is substantial ground for
disabled persons aware that accessible
                                                   difference of opinion—namely, “[w]hether
units are available and ensure that
accessible units are utilized by disabled
persons to the fullest extent possible). See
                                                          8
App. 18-19. Appellants appear to no                         As we explain below, plaintiffs’
longer seek enforcement of these                   individual claims that the Housing
regulations. See Appellants’ Br. 7-9. We           Authority denied them their right to access
therefore only address the regulations             under Section 504 still remain before the
appellants pursue on appeal.                       District Court.

                                               5
Plaintiffs have a private right of action            serve as a nudge in the preferred
against Defendants for enforcement of                directions.” Rosado v. Wyman, 397 U.S.
regulations of the United S tates                    397, 413 (1970), quoted in Pennhurst State
Department of Housing and Urban                      Sch. & Hosp. v. Halderman, 451 U.S. 1,
Development . . . as set forth in 24 C.F.R.          19 (1981). Other times, Congress more
§§ 8.20-33 which mandate the number and              s p e c i f ic a ll y c r e a te s “ ri g h t s a n d
distribution of accessible housing units for         obligations.” Pennhurst, 451 U.S. at 15.
qualified handicapped individuals in
                                                             Second, Congress can create
publicly funded housing developments,”
                                                     various types of rights and obligations.
App. 42—and that an immediate appeal
                                                     See, e.g., Granfinanciera, S.A. v.
may materially advance the ultimate
                                                     Nordberg, 492 U.S. 33, 51-52 & n.8
termination of the litigation. We therefore
                                                     (1989) (distinguishing between “public
exercise jurisdiction under 28 U.S.C. §
                                                     rights” and “private rights” for purposes of
1292(b).
                                                     the Seventh Amendment’s right to trial by
        We review de novo the District               jury). And one subset of rights that courts
Court’s dismissal under Federal Rule of              have discerned in statutes is “personal
Civil Procedure 12(b)(6) for failure to state        rights.” 9 Personal rights inhere in the
a claim. See, e.g., Pinker v. Roche                  individ ual; they are “individually
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d             focused”; they crea te “ind ividual
Cir. 2002). “In evaluating the propriety of          entitlements.” Non-personal rights, by
dismissal, we accept all factual allegations         contrast, often have a “systemwide” or
as true, construe the complaint in the light         “aggregate” focus; are defined in terms of
most favorable to the plaintiff, and                 obligations of the person or entity
determine whether, under any reasonable              regulated rather than in terms of
reading of the complaint, the plaintiff may          entitlements of the individual protected;
be entitled to relief.” Id.                          are “not concerned with whether the needs
                                                     of any particular person have been
                     A.
        Although we affirm the District
                                                             9
Court’s judgment, we do so based on                           Courts have been inconsistent in
reasoning that differs somewhat from the             the terms they use to refer to “personal
District Court’s. We begin with three                rights,” sometimes calling them
general propositions. First, Congress may            “individual rights,” “private rights,” or
effect its legislative goals through various         simply “federal rights.” We use the term
means. “Congress sometimes legislates by             “personal rights” throughout this opinion
innuendo,” for examp le, “ma king                    to maintain the demarcation between
declarations of policy and indicating a              “personal rights” and “private rights of
preference while requiring measures that,            action.” See Gonzaga Univ. v. Doe, 536
though falling short of legislating its goals,       U.S. 273, 285 (2002) (using the term
                                                     “personal rights”).

                                                 6
satisfied”; and regard “institutional policy           judicial proceedings.        Congress may
and practice, not individual instances” of             expressly provide in a particular statute,
conduct. See Gonzaga Univ. v. Doe, 536                 for example, that a party can bring suit
U.S. 273, 282, 288 (2002); Sandoval, 532               seeking enforcement.            Determining
U.S. at 288-89; Blessing v. Freestone, 520             whether a statute explicitly provides a
U.S. 329, 343-44 (1997).                               private remedy involves a relatively
                                                       straightforward inquiry. A court must look
            To be sure, systemic legislation may
                                                       to the text of the statute to see if it states,
in fact benefit a group of individuals. That
                                                       by its terms, that a private party may bring
does not mean that the legislation confers
                                                       suit to enforce it. See Hallstrom v.
a personal right on those individuals.
                                                       Tillamook County, 493 U.S. 20, 25 (1989).
“[T]he question whether a statute is
intended to benefit particular plaintiffs is                   Congress explicitly provided a
quite different from the question whether              private remedy in Title II of the Civil
the statute in fact benefits those plaintiffs          Rights Act of 1964, for instance, a statute
. . . .” Pa. Pharmacists Ass’n v. Houstoun,            that prohibits discrimination in places of
283 F.3d 531, 535 (3d Cir. 2002) (en                   public accommodation on the basis of
banc).            Personal rights are those            “race, color, religion, or national origin.”
i n t e n ti o n ally and “unambiguousl y              42 U.S.C. § 2000a. Title II provides that
conferred” through “rights-creating”                   when someone has or is about to
language. Gonzaga, 536 U.S. at 283, 284;               contravene its prohibition against
see Sabree ex rel. Sabree v. Richman, 367              discrimination, “a civil action for
F.3d 180, 187-88 (3d Cir. 2004).                       preventive relief, including an application
                                                       for a permanent or temporary injunction,
        Third, even when Congress creates
                                                       restraining order, or other order, may be
rights or obligations (including personal
                                                       instituted by the person aggrieved.” 42
rights), it does not necessarily follow that
                                                       U.S.C. § 2000a-3(a). Similarly, many
private parties can enforce them or obtain
                                                       environmental statutes contain express
a direct remedy through the judicial
                                                       private rights of action. See Hallstrom, 493
process. Id. at 284. It is often the case that
                                                       U.S. at 23 n.1 (citing statutes).
only the executive can enforce a federal
statute. Some statutes create rights in                       Indeed, when Congress authorizes
individuals that are only enforceable by               an express right of action, it can choose to
agencies, see, e.g., Communications                    allow private parties to enforce a range of
Workers of America v. Beck, 487 U.S.                   rights and obligations that Congress
735, 742 (1988), or not enforceable at all,            creates. Some statutes create personal
see Alden v. Maine, 527 U.S. 706 (1999).               rights, for example, and provide that
                                                       private parties may bring suit to enforce
        Of course, there are also many
                                                       those personal rights. See, e.g., 42 U.S.C.
statutorily created rights and obligations
                                                       §§ 2000e-2(a)(1), 2000e-5(f)(1) (Title VII
that private parties may seek to enforce in
                                                       of the Civil Rights Act of 1964). Other

                                                   7
statutes create rights or obligations that do        action to suit various purposes and goals.
not constitute personal rights—or impose
                                                             Many statutes, however, do not
obligations in addition to personal
                                                     contain provisions addressing either
rights—and still expressly allow private
                                                     whether private parties may maintain a
parties to enforce those rights or
                                                     right of action or the scope of a right of
obligations. See, e.g., 33 U.S.C. §§
                                                     action a private party may maintain. When
1365(a), (g) (Clean W ater Act). Indeed,
                                                     that is the case, courts may still recognize
some statutes create private rights of
                                                     a private right of action in one or both of
action—often called “citizen suit
                                                     two ways. First, a court may find an
provisions”—that extend plaintiffs’
                                                     implied right of action in the statute.
capacity to bring suit to the bounds of
                                                     Second, Section 1983 may provide a
Article III standing. See Friends of Earth,
                                                     private right of action.10       These are
Inc. v. Laidlaw Environmental Services
                                                     separate yet overlapping inquiries. See
(TOC), Inc., 528 U.S. 167 (2000) (Clean
                                                     Gonzaga, 536 U.S. at 283-84; W. Va.
Water Act).
                                                     Univ. Hosps., Inc. v. Casey, 885 F.2d 11,
        Congress may also circumscribe a
private right of action that it creates. It
                                                            10
may limit, for example, the type of relief                       Section 1983 provides:
available to a plaintiff. Compare 42 U.S.C.
§ 2000a-3(a) (limiting remedies available                   Every person who, under
for violations of Title II of the Civil Rights              color of an y statute ,
Act of 1964 to injunctive relief) with 42                   o r d i n a n c e , r e g u l a ti o n ,
U.S.C. § 2000e-5(g) (injunctions available                  custom, or usage, of any
to remedy violations of Title VII) and 42                   State or Territory or the
U.S.C. § 1981a(a)(1) (damages available                     D istr ic t o f C ol um bia,
to remedy violations of Title VII).                         subjects, or causes to be
Similarly, Congress may create a private                    subjected, any citizen of the
right of action that allows plaintiffs only to              United States or other
enforce a limited set of the rights or                      person within the
obligations that a statute creates. See                     jurisdiction thereof to the
Olmsted v. Pruce Life Ins. Co. of N.J., 283                 deprivation of any rights,
F.3d 429, 433 (2d Cir. 2002) (observing                     privileges, or immunities
that in the Investment Company Act of                       secured by the Constitution
1940 Congress explicitly provided a                         and laws, shall be liable to
private right of action to enforce some                     the party injured in an action
provisions of the statute but not others).                  at law, suit in equity, or
All this goes to saying that not all private                other proper proceeding for
rights of action are created equally;                       redress . . . .
Congress may (and does) tailor rights of
                                                     42 U.S.C. § 1983.

                                                 8
18 n.1 (3d Cir. 1989).                            two criteria are critical. If they do not point
                                                  toward a private right, the remaining two
       Congress’s intent in enacting a
                                                  ‘cannot by themselves be a basis for
statute is always the “focal point” in
                                                  implying a right of action.’” Am. Tel. &
determining whether courts should infer a
                                                  Tel. Co. v. M/V Cape Fear, 967 F.2d 864,
private right of action from the statute.
                                                  866 (3d Cir. 1992) (quoting Touche Ross
Thompson v. Thompson, 484 U.S. 174,
                                                  & Co. v. Redington, 442 U.S. 560, 580
179 (1988). The four factors set forth in
                                                  (1979) (Brennan, J., concurring)). Put
Cort v. Ash, 422 U.S. 66 (1975) guide a
                                                  succinctly, for an implied right of action to
court’s review in discerning that intent.
                                                  exist, a statute must manifest Congress’s
Thompson, 484 U.S. at 179; see also
                                                  intent to create (1) a personal right, and (2)
Hindes v. F.D.I.C., 137 F.3d 148, 169 (3d
                                                  a private remedy. See Sandoval, 532 U.S.
Cir. 1998). Those factors are:
                                                  at 286.
       First, is the plaintiff “one of
                                                          Determining whether there is a
       the class for whose especial
                                                  private right of action under Section 1983
       benefit the statute was
                                                  to enforce a federal statute requires only a
       enacted,”—that is, does the
                                                  slightly different analysis. Section 1983
       statute create a federal right
                                                  by its terms, of course, furnishes a private
       in favor of the plaintiff?
                                                  remedy.11 The threshold question remains,
       Second, is there any
                                                  however, whether the federal statute
       indication of legislative
                                                  creates a personal right—i.e., a plaintiff
       intent, explicit or implicit,
                                                  must show that “the statute creates
       either to create such a
                                                  ‘enfo rceab le rights, pri vileg es, o r
       remedy or to deny one?
                                                  immunities within the meaning of §
       Third, is it consistent with
                                                  1983.’” Pa. Pharmacists Ass’n v.
       the underlying purposes of
                                                  Houstoun, 283 F.3d at 535 (quoting
       the legislative scheme to
       imply such a remedy for the
       plaintiff? [Fourth,] is the                       11
                                                           Thus the second prong of Cort v.
       c a u s e o f a c tio n o n e
                                                  Ash—whether the statute manifests
       traditionally relegated to
                                                  Congress’s intent to create a private
       state law, in an area
                                                  remedy, which is critical to implication
       basically the concern of the
                                                  analysis— is irrelevant to the analysis
       States, so that it would be
                                                  under Section 1983: “Plaintiffs suing
       inappropriate to infer a
                                                  under § 1983 do not have the burden of
       cause of action based solely
                                                  showing an intent to create a private
       on federal law?
                                                  remedy because § 1983 generally supplies
Cort v. Ash, 422 U.S. at 78 (citations            a remedy for the vindication of rights
omitted) (emphasis in original). “The first       secured by federal statutes.” Gonzaga, 536
                                                  U.S. at 284.

                                              9
Wright v. Roanoke Redevelopment &                           therefore not differ from its
Housing Auth., 479 U.S. 418, 423 (1987)).                   role in discerning whether
Once the plaintiff establishes “the                         personal rights exist in the
existence of a federal right,” there arises a               implied right of action
rebuttable presumption that the right is                    context. Both inquiries
enforceable through the remedy of § 1983.                   simply       require         a
Pa. Pharmacists Ass’n v. Houstoun, 283                      determination as to whether
F.3d at 535. This presumption may be                        or not Congress intended to
rebutted by showing that “Congress                          confer individual rights
specifically foreclosed a remedy under §                    upon      a    class        of
1983, [either] expressly, by forbidding                     beneficiaries. Accordingly,
recourse to § 1983 in the statute itself, or                where the text and structure
impliedly, by creating a comprehensive                      of a statute provide no
enforcement scheme that is incompatible                     indication that Congress
with individual enforcement under §                         intends to create new
1983.” Powell v. Ridge, 189 F.3d 387, 401                   individual rights, there is no
(3d Cir. 1999) (internal quotations and                     basis for a private suit,
citations omitted), quoted in South                         whether under § 1983 or
Camden, 274 F.3d at 780.                                    under an implied right of
                                                            action.
       Critically, the inquiry whether there
is a personal right under implied right of           Id. at 285-86 (internal citations omitted).
action analysis and the question whether             Thus Congress’s creation of a personal
there is a personal “enforceable right”              right is necessary to the existence of both
under Section 1983 are the same. As the              an implied right of action and a right of
Supreme Court held in Gonzaga                        action under Section 1983.
University v. Doe: “[T]he initial [Section
                                                             To sum up, private parties may only
1983] inquiry—determining whether a
                                                     enforce personal rights through implied
statute confers any right at all— is no
                                                     rights of action or through Section 1983.
different from the initial inquiry in an
                                                     This distinguishes implied rights of action
implied right of action case, the express
                                                     and rights of action under Section 1983
purpose of which is to determine whether
                                                     from express rights of action. Only under
or not the statute ‘confer[s] rights on a
                                                     the latter may plaintiffs enforce more than
particular class of persons.’” 536 U.S. at
                                                     personal rights, when Congress expressly
285 (quoting California v. Sierra Club, 451
                                                     so prescribes. See, e.g., Laidlaw, 528 U.S.
U.S. 287, 294 (1981)). The Court further
                                                     at 175-76, 185 .
explained:
                                                                         B.
       A court's role in discerning
       whether personal rights exist                       That leads us to the issue of
       in the § 1983 context should                  whether a private right of action exists to

                                                10
enforce regulations that an agency                    implied right of action in Angelastro v.
promulgates pursuant to a federal statute.            Prudential-Bache Securities, Inc., 764 F.2d
Where Congress has created an express                 939 (3d Cir. 1985). There, we articulated
right of action, a court must examine the             a three-tiered analysis for determining
scope of the statute’s right of action—as             “whether to imply a private right of action
evidenced in the statute’s text—to                    from an [agency] rule, and only indirectly
determine whether a plaintiff may                     from the enabling statute.” Id. at 947. A
maintain a cause of action to enforce the             court must determine “(1) ‘whether the
regulations. Congress may, for example,               agency rule is properly within the scope of
explicitly establish a private right of action        the enabling statute’; (2) ‘whether the
to enforce regulations. Thus, the Resource            statute under which the rule was
Conservation and Recovery Act of 1976                 prom ulgate d properly permits the
“permits individuals to commence an                   implication of a private right of action’;
action in district court to enforce waste             and (3) ‘whether implying a private right
disposal regulations promulgated under the            of action will further the purpose of the
Act.” Hallstrom, 493 U.S. at 22.12                    enabling statute.’” Polaroid Corp. v.
                                                      Disney, 862 F.2d 987, 994 (3d Cir. 1988)
       The inquiry becomes more
                                                      (quoting Angelastro, 764 F.2d at 947); see
complicated, however, when a private
                                                      also Corestates Trust Fee Litig. v.
party seeks to enforce a regulation an
                                                      Corestates Bank, N.A., 39 F.3d 61, 67-68
agency promulgates pursuant to a statute
                                                      (3d Cir. 1994) (applying Angelastro).
that does not contain an express right of
action; that is, when the statute gives rise                 The Supreme Court subsequently
to a private remedy either through an                 addressed the issue in Alexander v.
implied right of action or through Section            Sandoval, which involved a regulation that
1983.                                                 the Department of Justice (“DOJ”) had
                                                      promulgated under Title VI of the Civil
      We addressed whether a plaintiff
                                                      Rights Act of 1964. See 532 U.S. at 278.
could bring suit to enforce regulations
                                                      Section 601 of Title VI prohibits recipients
promulgated under a statute with an
                                                      of federal funding from intentionally
                                                      discriminating against individuals based
                                                      on race, color, or national origin. 42
       12
          The statute provides, in relevant           U.S.C. § 2000d; see also Sandoval, 532
part, that “any person may commence a                 U.S. at 280-81. Section 602 of Title VI
civil action on his own behalf . . . against          authorizes federal agencies “to effectuate
any person . . . who is alleged to be in              the provisions of [Section 601] . . . by
violation of any permit, standard,                    issuing rules, regulations, or orders of
regulation, condition, requirement,                   general applicability.” 42 U.S.C. § 2000d-
prohibition, or order which has become                1. The DOJ promulgated a regulation
effective pursuant to this chapter.” 42               prohibiting recipients of federal funding
U.S.C. § 6972(a)(1)(A).

                                                 11
from taking actions that had a disparate             validly construe a statute for which there
impact on racial groups. See 28 C.F.R. §             exists a private right of action. “A
42.104(b)(2) (2000).                                 Congress that intends the statute to be
                                                     enforced through a private cause of action
        Since Section 601 prohibits only
                                                     intends the authoritative interpretation of
intentional discrimination, the Court
                                                     the statute to be so enforced as well.” Id. at
explained, the DOJ’s disparate impact
                                                     284. Thus Sandoval is consistent with this
regulation had to derive from Section 602.
                                                     court’s jurisprudence in Angelastro and its
Thus the plaintiffs did not have a right to
                                                     progeny.      Angelastro, like Sandoval,
sue under Section 601’s private right of
                                                     teaches that courts must look to the
action; “[t]hat right must come, if at all,
                                                     enabling statute to find the source of a
from the independent force of § 602.” Id.
                                                     right of action to enforce regulations,
at 286.13 The Court therefore analyzed
                                                     because “an agency's rulemaking power
Section 602 to determine whether it could
                                                     cannot exceed the authority granted to it by
infer a right of action under that provision.
                                                     Congress.” 764 F.2d at 947. A regulation
In doing so, the Court found that Section
                                                     cannot “conjure up a private cause of
602 does not manifest Congress’s intent to
                                                     action that has not been authorized by
create a personal right, namely because
                                                     Congress. Agencies may play the
“rights-creating” language is absent from
                                                     sorcerer’s apprentice but not the sorcerer
the statute. Id. at 288. In addition, the
                                                     himself.” Sandoval, 532 U.S. at 291.
Court found that Section 602 does not
manifest an intent to create a private                      Sandoval and Gonzaga do allow us
remedy, mostly because the enforcement               to refine our decision in Angelastro.
system that Section 602 and Section 603              Sandoval and Gonzaga explain in no
create suggest just the opposite. Id. at 289-        uncertain terms that Congress’s statutory
90.                                                  creation of a personal right is a predicate
                                                     to finding an implied right of action in a
       Because no private right of action
                                                     statute. The agency and its regulations do
exists to enforce Section 602, and the
                                                     not furnish an independent basis to
DOJ’s regulation derived from that
                                                     “conjure” an implied right of action. Thus,
provision of Title VI, the plaintiffs in
                                                     when determining as a part of Angelastro’s
Sandoval did not have a right of action to
                                                     private right of action analysis “whether
enforce the regulation. Id. at 290-91. The
                                                     the agency rule is properly within the
Court noted, however, that private parties
                                                     scope of the enabling statute,” a court is
may bring suit to enforce regulations that
                                                     really looking more precisely at whether
                                                     the agency rule is within the scope
                                                     of— i.e., construes, fleshes out, or fills in
       13
         The Court concluded that it was             the interstices of—a personal right that the
“beyond dispute” that an implied right of            enabling statute creates.
action exists to enforce Section 601. 532
                                                            Sandoval and Angelastro were
U.S. at 280.

                                                12
implied right of action decisions.                    vis-à-vis a right of action under the
Therefore, neither addressed whether                  Rehabilitation Act or Section 1983.
plaintiffs could enforce the regulations at
                                                                          C.
issue in those cases by way of a private
right of action under Section 1983. This                     To determine whether plaintiffs
court subsequently examined that issue in             have a private right of action under the
South Camden Citizens in Action v. New                Rehabilitation Act to enforce the HUD
Jersey Dep’t of Envtl. Prot., 274 F.3d 771            regulations, we must make a series of
(3d Cir. 2001), cert. denied, 536 U.S. 939            inquiries. First, we examine the scope of
(2002). There, we considered a disparate              the private right of action that exists to
impact regulation that the Environmental              enforce Section 504. We conclude that
Protection Agency had promulgated under               since Section 504's private right of action
Section 602 of Title VI. We extended                  is contiguous with Title VI’s—for which
Sandoval’s reasoning to the Section 1983              an implied, not express, right of action
context and concluded that a regulation               exists—plaintiffs can bring suit to enforce
cannot “create a right enforceable through            personal rights that Section 504 creates,
section 1983 where the alleged right does             and only such personal rights.
not appear explicitly in the statute, but
                                                             Second, we examine Section 504
only appears in the regulation.” Id. at 781.
                                                      and the pertinent HUD regulations to
A plaintiff can only enforce a regulation
                                                      determine whether the HUD regulations
under Section 1983 if the regulation
                                                      construe any personal right that Section
“merely define[s] the specific right that
                                                      504 creates. We ultimately conclude that
Congress already ha[s] conferred through
                                                      while the HUD regulations we examine
the statute.” Id. at 783. In other words,
                                                      here may construe rights or obligations
private parties cannot enforce regulations
                                                      that Section 504 creates, they do not
under Section 1983 when the regulations
                                                      construe personal rights that Section 504
“do more than define or flesh out the
                                                      creates.    We therefore find that the
content of a specific right conferred upon
                                                      Rehabilitation Act does not provide a
the plaintiffs” by the statute and instead
                                                      private right of action to enforce these
“give the statute a scope beyond that
                                                      particular HUD regulations.
Congress contemplated.” Id. at 790.
Under Section 1983, therefore, regulations                                 1.
give rise to a right of action only insofar as
                                                             The Rehabilitation Act, as
they construe a personal right that a statute
                                                      originally enacted, did not explicitly
creates. Id.; see also Harris v. James 127
                                                      provide a private right of action. In the
F.3d 993, 1008-09 (11th Cir. 1997).
                                                      years following its enactment, however, a
        With these principles in mind, we             number of courts (including this Court)
turn to whether plaintiffs here can bring             concluded that an implied right action
suit to enforce the HUD regulations, either           existed to enforce the statute. See Lloyd v.


                                                 13
Reg’l Transp. Auth., 548 F.2d 1277, 1280-                   or judicial interpretation of a
81 (7 th Cir. 1977); Kapmeier v. Nyquist,                   statute and to adopt that
553 F.2d 296, 299 (2d Cir. 1977)                            interpretation when it
(following Lloyd); United Handicapped                       re-enacts a statute without
Fed’n v. Andre, 558 F.2d 413, 415 (8 th Cir.                change. So too, where, as
1977) (following Lloyd); Leary v.                           here, Congress adopts a new
Crapsey, 566 F.2d 863, 865 (2d Cir. 1977);                  law incorporating sections
Davis v. Southeastern Cmty. Coll., 574                      of a prior law, Congress
F.2d 1158, 1159 (4 th Cir. 1978) (following                 normally can be presumed
Lloyd), rev’d on other grounds, 442 U.S.                    to have had knowledge of
397 (1979); NAACP v. Med. Ctr., Inc.,                       the interpretation given to
599 F.2d 1247, 1258-59 (3d Cir. 1979)                       the incorporated law, at least
(following Lloyd); Kling v. County of Los                   insofar as it affects the new
Angeles, 633 F.2d 876, 878 (9 th Cir. 1980)                 statute.
(following Lloyd). Congress’s subsequent
                                                     Lorillard v. Pons, 434 U.S. 575, 580-81
amendments to the Rehabilitation Act
                                                     (1978) (internal citations omitted). Thus
reinforce, indeed compel, the conclusion
                                                     Congress, in essence, provided a private
that a private right of action exists to
                                                     right of action under Section 504 by
enforce Section 504.
                                                     incorporating Title VI’s “remedies,
         First, Congress added Section               procedures, and rights” into the statute.
505(a)(2) to the Rehabilitation Act in               See also Barnes v. Gorman, 536 U.S. 181,
1978. The provision provides that the                184-85 (2002); Bowers, 346 F.3d at 426
“remedies, procedures, and rights set forth          (“[A]lthough the remedy available to
in title VI of the Civil Rights Act of 1964          persons aggrieved by violations of the
shall be available to any person aggrieved           Rehabilitation Act . . . is at root an implied
by any act or failure to act by any recipient        one, [the statute], by cross-referencing
of Federal assistance or Federal provider            Title VI, which already had been
of such assistance under section 794 of              interpreted as creating a private right of
this title.” 29 U.S.C. § 794a(a)(2). At the          action, arguably [contains an] explicit
time, “the courts, including [the Supreme            provision[] creating a private right of
Court], ha[d] unanimously concluded or               action.”).
assumed that a private action may be
                                                             Second, Congress confirmed that a
maintained under Title VI.” Regents of
                                                     private right of action exists to enforce
Univ. of Cal. v. Bakke, 438 U.S. 265, 419
                                                     Section 504 when it ratified the Supreme
(1978) (Stevens, J., concurring in part and
                                                     Court’s decision in Cannon v. Univ. of
dissenting in part). As the Supreme Court
                                                     Chicago, 441 U.S. 677 (1979). In Cannon,
has explained,
                                                     the Court held that a private right of action
       Congress is presumed to be                    exists to enforce Title IX of the Education
       aware of an administrative                    Amendments of 1972, because Title IX

                                                14
“was patterned after Title VI” and “[i]n                    The private right of action that
1972 when Title IX was enacted, the                 exists to enforce Title VI is, of course, an
[parallel] language in Title VI had already         implied right of action. See Sandoval, 532
been construed as creating a private                U.S. at 280; Bowers, 346 F.3d at 428 n.21;
remedy.” Id. at 694, 696. Like Title IX,            Med. Ctr., Inc., 599 F.2d at 1257-58.
Section 504 was also patterned after Title          Since, as we have explained, Sandoval
VI. See Med. Ctr., Inc., 599 F.2d at 1258.          mandates that an implied right of action
And Congress subsequently enacted                   can exist only where Congress creates a
Section 1003 of the Rehabilitation Act              personal right, a plaintiff can enforce only
Amendments of 1986, 42 U.S.C. § 2000d-              personal rights through an implied right of
7, which the Supreme Court has                      action.       Be c a use Se c tion 5 0 4's
interpreted as “a validation of Cannon’s            remedies—including the scope of its
holding.” Franklin v. Gwinnett County               private right of action—are coextensive
Pub. Sch., 503 U.S. 60, 72 (1992); see also         with Title VI’s, it follows that plaintiffs
Sandoval, 532 U.S. at 280.14                        can only bring suit to enforce personal
                                                    rights that Section 504 creates.
       We note these circumstances not
because the parties dispute whether a                      Accordingly we conclude that
private right of action exists under Section        insofar as plaintiffs seek to enforce these
504. Rather, we do so because the source            HUD regulations, they may do so only if
of the private right of action speaks to its        the regulations construe and define a
scope. Section 504's private right of action        personal right that Section 504 creates;
derives—through Congress’s use of                   “[a]gencies may play the sorcerer’s
parallel language, incorporation of Title           apprentice but not the sorcerer himself.”
VI’s remedies in the 1978 amendments,               Sandoval, 532 U.S. at 291. We turn to the
and ratification of Cannon— from the                relationship between Section 504 and the
right of action that exists to enforce Title        HUD regulations at issue.
VI. Consequently, “the remedies for
                                                                         2.
violations of . . . § 504 of the
Rehabilitation Act are coextensive with the                The Supreme Court has interpreted
remedies available in a private cause of            Section 504 in two principal decisions:
action brought under Title VI.” Gorman,             Southeastern Cmty. Coll. v. Davis, 442
536 U.S. at 185.                                    U.S. 397 (1979) and Alexander v. Choate,
                                                    469 U.S. 287 (1985). In Davis and
                                                    Choate, the Court articulated two
       14
          Section 1003 “abrogated the               countervailing legislative concerns that
States’ Eleventh Amendment immunity                 underlie Section 504 and guide courts’
under Title IX, Title VI, § 504 of the              interpretation of it: “(1) effectuation of the
Rehabilitation Act of 1973, and the Age             statute’s objectives of assisting the
Discrimination Act of 1975.” Franklin,              handicapped; and (2) the need to impose
503 U.S. at 72.

                                               15
reasonable boundaries in accomplishing               504 requires of recipients of federal funds
this purpose.” Skinner, 881 F.2d at 1191             in accommodating the needs of disabled
(citing Choate, 469 U.S. at 299). The                persons.” Sykes, 833 F.2d at 1117.
Court struck a balance between these
                                                             Section 504 does not, by its terms,
consideration by reading Section 504 as
                                                     mandate the issuance of regulations to
requiring federal fund grantees to offer
                                                     implement the statute. See Helen L. v.
“meaningful access” to programs they
                                                     Didario, 46 F.3d 325, 330 n.9 (3d Cir.
administer.     Meaningful access, as
                                                     1995). Section 504's legislative history
explicated by the Court, does not require
                                                     indicate s, however, that Congress
that grantees “fundamentally alter” or
                                                     contemplated the promulgation of such
“substantially change” the nature of the
                                                     regulations. See S. Rep. No. 93-1297, at
program. Moreover, grantees need not
                                                     40 (1974), reprinted in 1974 U.S.C.C.A.N.
make accommodations that would impose
                                                     6390-91; see also Cmty. Television of S.
undue financial or administrative burdens.
                                                     Cal. v. Gottfried, 459 U.S. 498, 509 (1983)
See Skinner, 881 F.2d at 1192; Nathanson
                                                     (“[S]ince § 504 was patterned after Title
v. Med. Coll. of Pa., 926 F.2d 1368, 1383
                                                     VI of the Civil Rights Act of 1964, it was
(3d Cir. 1991).      “Choate and Davis
                                                     understood that resp onsib ility for
therefore contemplate a continuum in
                                                     enforcing it, insofar as it regulated private
which some modest modifications may be
                                                     recipients of federal funds, would lie with
necessary to avoid discrimination but other
                                                     those agencies administering the federal
more substantial modifications are not
                                                     financial assistance programs.”).
required by section 504.” Skinner, 881
F.2d at 1192.                                               In 1976, President Ford issued
                                                     Executive Order No. 11,914, 41 Fed. Reg.
        Despite courts’ efforts to interpret
                                                     17,871 (Apr. 28, 1976), which required the
Section 504 and determine what it requires
                                                     Department of Health, Education, and
of federal grantees, the statute is
                                                     Welfare (“HEW”) to “establish . . .
nonetheless still “‘ambiguous and lacking
                                                     guidelines for determining what are
in specifics.’” Disabled in Action of Pa. v.
                                                     discriminatory practices, within the
Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987)
                                                     meaning of section 504.” HEW issued
(quoting R.I. Handicapped Action Comm.
                                                     “coordination regulations” in 1978. See 43
v. R.I. Public Transit Auth., 718 F.2d 490,
                                                     Fed. Reg. 2132 (Jan. 13, 1978).
494 (1 st Cir. 1983)); see also Skinner, 881
F.2d at 1193 (referring to the “difficulty in              The HEW regulations now appear
determining precisely the extent of                  at 28 C.F.R. Pt. 41.15 After providing
accommodation mandated by section
504"). As a result, some courts have
                                                            15
“suggested that the relevant federal agency                   HEW eventually became the
and not the court has the chief                      Department of Health and Human Services
responsibility to determine what Section             (“HHS”), see 20 U.S.C. § 3508 (1979),
                                                     and in 1980 President Carter transferred

                                                16
some general prescriptions against                   41.56. The regulations’ more specific
discrimination in federally funded                   program accessibility requirements go on
programs and activities, see 28 C.F.R. §             to distinguish between existing, newly-
41.51, the regulations specifically address          constructed, and altered facilities.
employment discrimination and program
                                                             With respect to new construction,
accessibility. See C.F.R. §§ 41.52-58.16
                                                     the regulations require that new facilities
        The     pro gram      a ccess ibility        “be designed and constructed to be readily
regulations provide: “No qualified                   accessible to and usable by handicapped
handicapped person shall, because a                  persons.” 28 CFR § 41.58(a).            And
recipient's facilities are inaccessible to or        “[a]lterations to existing facilities [must],
unusable by handicapped persons, be                  to the maximum extent feasible, be
denied the benefits of, be excluded from             designed and constructed to be readily
participation in, or otherwise be subjected          accessible to and usable by handicapped
to discrimination under any program or               persons.” Id.
activity that receives or benefits from
                                                                After HEW promulgated its
federal financial assistance.” 28 C.F.R. §
                                                     regulations, Congress amended Section
                                                     504. As we described above, Congress
                                                     e n a c t e d S e c t i o n 5 0 5 (a ) ( 2 ) a n d
HHS’s coordination and enforcement                   incorporated by reference Title VI’s
authority to the Attorney General. See               “remedies, procedures, and rights.” 29
Executive Order No. 12,250, 45 Fed. Reg.             U.S.C. § 794a(a)(2). Congress also added
72,995 (Nov. 2, 1980). The DOJ thereafter            text to Section 504 requiring federal
adopted the HEW coordination regulations             agencies to “promulgate such regulations
without substantive changes. See Bragdon,            as may be necessary to carry out the
524 U.S. at 633. For the sake of internal            amendments to this section made by the
consistency, we refer to the regulations as          Rehabilitation, Comprehensive Services,
the “HEW regulations.”                               and Developmental Disabilities Act of
       16                                            1978.” 29 U.S.C. § 794.
          Thus the regulations reflect the
concerns that motivated Congress to enact                       The Supreme Court has interpreted
Section 504. See Choate, 469 U.S. at 306-            the 1978 amendments as “ma[king]
07 (“In enacting the Rehabilitation Act and          explicit” Congress’s theretofore implicit
in subsequent amendments, Congress . . .             understanding that agencies administering
focus[ed] on se veral subs tantiv e                  federal financial assistance programs
areas— employment, education, and the                wo uld e n f o r c e S e c ti o n 5 0 4 by
elimination of physical barriers to                  promulgating regulations. Gottfried, 459
access—in which it considered the societal           U.S. at 509.              The Court has also
and personal costs of refusals to provide            i n t e rp r e t e d t h e a m e n d m e n t s a s
meaningful access to the handicapped to              “incorporat[ing] the substance of the
be particularly high.”).

                                                17
[HEW] regulations into the statute.”                 regulations may (instead or additionally)
Consol. Rail Corp. v. Darrone, 465 U.S.              construe non-personal rights or
624, 634 n.15 (1984). 17 As the Supreme              obligations that Section 504 creates.
Court has repeatedly noted, the HEW                  Third, the regulations may also create
regulations deserve considerable deference           distinct rights or obligations—either
b e c a u s e t h e y c o n s t it u t e th e        personal or non-personal—in addition to
“contemporaneous regulations issued by               those that Section 504 creates.18 As we
the agency responsible for implementing a            have explained, only in the first instance
congressional enactment.” Id. at 634; see            would plaintiffs have a private right of
also Bragdon v. Abbott, 524 U.S. 624, 632            action to enforce the regulations. That is
(1998); Toyota Motor Mfg., Ky., Inc. v.              because Section 504's right of action only
Williams, 534 U.S. 184, 195 (2002)                   allows plaintiffs to enforce personal rights
(same); Chevron U.S.A. Inc. v. Echazabal,            that the statute creates, and any regulations
536 U.S. 73, 82 n.4 (2002) (same).
       Importantly, the HEW regulations
                                                            18
require each agency to “issue, after notice                    We distinguish—as we did in
and opportunity for comment, a regulation            South Camden—between regulations that
to implement section 504 with respect to             “construe” a statute and regulations that
the programs and activities to which it              “create rights or obligations in addition to
provides assistance.” 28 C.F.R. § 41.4(a);           those that the statute creates.” If Congress
see also 28 C.F.R. § 41.4(c)(2). HUD                 duly authorizes an agency, it may
promulgated Section 504 regulations,                 promulgate both types of regulations. See
which we described above, in 1988.                   1 Richard J. Pierce, Jr., Administrative
                                                     Law Treatise § 6.4, at 325-26 (4th ed.
       That brings us to the question on             2002); see also Chao v. Rothermel, 327
which this appeal hinges: What is the                F.3d 223, 227 (3d Cir. 2003) (discussing
precise relationship between the right of            “interpretative” and “legislative” rules);
action under Section 504 and the HUD                 Am. Mining Cong. v. Mine Safety &
regulations? There is a universe of three            Health Admin., 995 F.2d 1106, 1108-09
possibilities. First, the regulations may do         (D.C. Cir. 1993) (same). Appellees
no more than construe personal rights that           assume that Congress has so authorized
Section 504 creates. Second, the                     HUD under the Rehabilitation Act and
                                                     that the HUD regulations are valid. We
                                                     adopt that assumption for the purposes of
       17
          As the Court explained, “the               this decision. Nothing here is meant to
responsible congressional committees                 cast doubt on the validity of the HUD
participated in their formulation, and both          regulations themselves. But the validity of
these committees and Congress itself                 the regulations is a different question than
endorsed the regulations in their final              whether they are privately enforceable.
form.” Darrone, 465 U.S. at 634.                     See South Camden, 274 F.3d at 787.

                                                18
a plaintiff seeks to enforce must merely             instance, Section 8.22 provides that new
“flesh out” those statutory personal rights.         housing projects “shall be designed and
Cf. South Camden, 274 F.3d at 790.                   constructed to be readily accessible “ to
                                                     handicapped persons. 24 C.F.R. § 8.22(a).
       An analysis of the HUD regulations
                                                     And Section 8.26 requires that accessible
here reveals that in any event they do not
                                                     dwelling units “be distributed throughout
articulate personal rights.
                                                     projects.” 24 C.F.R. § 8.26.
        At the outset, we observe that as a
                                                             Similarly, the HUD rules have an
general matter the HUD regulations are
                                                     “‘aggregate focus’” and “are not
directed at the Housing Authority’s
                                                     concerned with ‘whether the needs of any
obligations as a grantee. Section 8.22, for
                                                     particular person have been satisfied.’”
example, requires that new housing
                                                     Gonzaga, 536 U.S. at 288 (quoting
projects “shall be designed and
                                                     Blessing, 520 U.S. at 343, 344). In this
constructed to be readily accessible to and
                                                     regard, we emphasize that all but one of
usable by individuals with handicaps.” 24
                                                     the regulations plaintiffs seek to enforce
C.F.R. § 8.22(a). This mandate is not
                                                     turn on the percentage of units that meet
couched in terms of any beneficiary’s
                                                     accessibility requirements. Five percent of
entitlement, but aims at the fund
                                                     the units in newly-constructed and
recipient’s conduct. Id. The regulations,
                                                     substantially-altered housing projects must
to the extent they effectuate Section 504,
                                                     be accessible to those with ambulatory
speak to the regulated state entity and do
                                                     disabilities, and two percent must be
not focus on the individual beneficiary.
                                                     accessible to those with hearing and visual
Words “that focus on the person regulated
                                                     disabilities. See 24 U.S.C. §§ 8.22(b),
rather than individuals protected create ‘no
                                                     8.23(a). And when the Housing Authority
implication of an intent to confer rights on
                                                     alters a unit, but not substantially, it must
a particular class of persons.’” Sandoval,
                                                     make the unit accessible unless five
532 U.S. at 289 (quoting California v.
                                                     percent of the units in the housing project
Sierra Club, 451 U.S. 287, 294 (1981)).
                                                     are already accessible. See 24 U.S.C. §
Thus the regulations fall short of the type
                                                     8.23(b).
of individually-focused entitlement that
the Supreme Court has found critical in                     Thus the Housing Authority can fail
determining whether Congress created                 to comply with the regulations and still not
personal rights. See Gonzaga, 536 U.S. at            deny access to a disabled individual.
287; Richman, 367 F.3d at 187-88.                    Consider, for instance, if the Housing
                                                     Authority were to build a new 100-unit
       Equally important, the HUD
                                                     housing facility and, although none of the
regulations plaintiffs seek to enforce relate
                                                     newly-built units were accessible to the
to “institutional policy and practice, not
                                                     mobility impaired, the Housing Authority
individual instances” of discrimination.
                                                     had a policy of retrofitting every unit to be
Gonzaga, 536 U.S. at 288. So, for
                                                     accessible whenever an impaire d

                                                19
individual sought public housing. The               does exist to enforce the regulations’
Housing Au thority wo uld provide                   enabling statute (Section 504). But the
accessible housing to disabled individuals,         right of action that exists under Section
yet it would have failed to comply with the         504 only allows plaintiffs to enforce
regulations. We do not offer this example           personal rights that Section 504 creates.
to suggest that Section 504 does not                And the HUD regulations do not construe
authorize the prophylactic measures the             a personal right under Section 504.
regulations articulate. Rather, the example
                                                            Similarly, this case also differs from
demonstrates that the mandates the
                                                    recent cases applying Sandoval.              In
regulations set forth are not individual-
                                                    Jackson v. Birmingham Board of
oriented and have a systemwide focus. See
                                                    Education, 309 F.3d 1333 (11th Cir. 2002),
Blessing, 520 U.S. at 343-44 (treating
                                                    cert. granted, 124 S. Ct. 2834 (2004) and
focus on systemwide compliance as
                                                    Peters v. Jenney, 327 F.3d 307 (4 th Cir.
inconsistent with the creation of personal
                                                    2003) the Eleventh and Fourth Circuits
rights).
                                                    addressed whether plaintiffs had a right of
       Since the HUD regulations at issue           action to enforce anti-re taliation
do not articulate personal rights, they of          regulations that agencies promulgated
course cannot construe personal rights that         under Section 601 of Title VI and the
Section 504 creates; and whether the HUD            parallel provision in Title IX of the
regulations otherwise construe general              Education Amendments of 1972, 20
obligations that Section 504 creates or             U.S.C. § 1681. The issue in those cases
create distinct obligations is not                  was not whether the anti-retaliation
dispositive for private right of action             regulations articulated personal rights.
analysis. Thus, although we assume that             Rather, the issue was whether the
the HUD regulations properly effectuate             regulation articulated a personal right that
Section 504, we cannot conclude that the            Congress created in Title VI and Title IX,
regulations construe a personal right               respectively. This is the very type of
within Section 504. As a result, plaintiffs         question raised in Sandoval itself. The
cannot enforce the regulations by way of            Fourth Circuit held that the regulations’
Section 504's private right of action.              “retaliation prohibition is an interpretation
                                                    of § 601's core antidiscrimination
        In reaching our conclusion, we note
                                                    mandate.” 327 F.3d at 316. The Eleventh
that while Sandoval drives our decision,
                                                    Circuit, in contrast, held that “[b]ecause
this case differs from Sandoval. In
                                                    Congress has not created a right through
Sandoval, plaintiffs could not sue to
                                                    Title IX to redress harms resulting from
enforce the disparate impact regulations
                                                    retaliation, [the Department of Education’s
because no private right of action existed
                                                    regulation] may not be read to create one
at all to enforce the statutory provision
                                                    either.” 309 F.3d at 1346.
(Section 602 of Title VI) from which the
regulations derived. Here, a right of action               Our case is far different because it

                                               20
involves regu lations implementin g                    accord with our decision here.
systemic rights and obligations. Whether
                                                                           D.
the HUD regulations construe Section 504
(or create new obligations), Section 504's                     The reasons that compel us to
implied right of action only allows                    conclude that plaintiffs cannot maintain
plaintiffs to enforce personal rights that the         their suit to enforce the HUD regulations
statute creates and not systemic                       as a private cause of action under Section
obligations. Thus, even if we were to                  504 also compel us to conclude that they
assume that Congress created the systemic              cannot sue to enforce the regulations
rights and obligations that the HUD                    under Section 1983. As we held in South
regulations articulate, plaintiffs may not             Camden, plaintiffs can only enforce under
enforce those rights under Section 504                 Section 1983 personal rights that Congress
because they are not personal rights.                  creates. Whether or not Congress created
                                                       the systemic rights that the HUD
        Finally, our decision is consistent
                                                       regulations articulate, plaintiffs cannot
with past cases in which plaintiffs have
                                                       enforce them under Section 1983 because
enforced regulations promulgated under
                                                       they are not personal rights.
statutes (including Section 504) that did
not contain express rights of action. In                                   III.
Disabled in Action of Pa. v. Sykes, 833
                                                               For the reasons stated above, we
F.2d 1113 (3d Cir. 1987), for example, we
                                                       will affirm the District Court’s judgment.
granted summary judgment to plaintiffs
                                                       We emphasize, as the defendants concede,
seeking to enforce Department of
                                                       see Appellee’s Br. 26, 32, that plaintiffs
Transportation regulations promulgated
                                                       may continue to bring suit to enforce their
under Section 504.           The regulations
                                                       personal rights to access directly under
required grantees to make transportation
                                                       Section 504. Thus those claims, as well as
facilities— in Sykes, a particular subway
                                                       plaintiffs’ motion seeking class
station in Philadelphia—accessible when a
                                                       certification, remain before the District
facility is substantially altered. Id. at 1119.
                                                       Court. We note that the District Court will
Those regulations required the City of
                                                       have to determine the extent to which any
Philadelphia to make a common area
                                                       of the HUD regulations may be relevant to
individually accessible; that is, an area that
                                                       determining whether defendants are liable
any disabled individual had to access in
                                                       under Section 504. See, e.g., Nathanson,
order to use the public facility. Thus the
                                                       926 F.2d at 1386. Moreover, if plaintiffs
regulations construed plaintiffs’ personal
                                                       continue to seek class certification as well
right to access. See also Chaffin v. Kan.
                                                       as injunctive relief, the Court will have to
State Fair Bd., 348 F.3d 850, 858 (10th
                                                       address several inter-connected issues
Cir. 2003) (finding cause of action to
                                                       over the course of the proceedings. See
enforce regulations promulgated under
                                                       Armstrong v. Davis, 275 F.3d 849, 860
Title II of the ADA ). That is entirely in
                                                       (9th Cir. 2001) (“[W]here a district court

                                                  21
grants system-wide injunctive relief, the
issues of standing, class certification, and
the propriety and scope of relief are often
intermingled.”). Finally, HUD retains its
independent authority—indeed, its
independent obligation—to enforce its
own regulations after many years of the
Housing Authority’s noncompliance.




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