                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-1997

Chester Residents v. Seif
Precedential or Non-Precedential:

Docket 97-1125




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Recommended Citation
"Chester Residents v. Seif " (1997). 1997 Decisions. Paper 285.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/285


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Filed December 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1125

CHESTER RESIDENTS CONCERNED FOR QUALITY
LIVING; ZULENE MAYFIELD; CATHY MORSE; OSSIE
MORSE; KING MCDONALD; ANGELA MCDONALD;
CARLENE P. STEVENSON; LOUIS S. MORSE; RICK
OTTEN; LINDA MORSE ROTHWELL; ARTHUR H.
ROTHWELL, III; MARGARITA SANTIAGO; RICARDO
SANTIAGO*; DANIEL MURPHY; JANET WEISS; REAGAN
OTTEN; RENEE D. DALE; FRANCES ROTHWELL;
LISA GILLIAM

v.

JAMES M. SEIF, in his capacity AS SECRETARY OF THE
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION; PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION; CAROL R. COLLIER, in
her capacity AS DIRECTOR OF THE SOUTHEASTERN
REGION OF DEPARTMENT OF ENVIRONMENTAL
PROTECTION; PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION - SOUTHEAST REGION

Chester Residents Concerned for Quality, Zulene Mayfield,
Cathy Morse, King McDonald, Angela McDonald, Carlene
P. Stevenson*, Louis S. Morse, Rick Otten, Lisa Morse
Rothwell, Arthur H. Rothwell, III, Margarita Santiago,
Ricardo Santiago, Daniel Murphy, Janet Weiss, Renee D.
Dale, Frances Rothwell, and Lisa Gilliam,
Appellants

(Caption amended per Clerk's 3/10/97 order)
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 96-cv-03960)

Argued September 25, 1997

BEFORE: COWEN, ROTH and LEWIS, Circuit Judges

(Filed December 30, 1997)

       Jerome Balter, Esq.
       Public Interest Law Center
        of Philadelphia
       125 South 9th Street
       Suite 700
       Philadelphia, PA 19107

       Gilbert Paul Carrasco, Esq. (Argued)
       Villanova University
       Villanova Law School
       Villanova, PA 19085

        COUNSEL FOR APPELLANTS

       Chester Residents Concerned for
       Quality Living
       Zulene Mayfield; Cathy Morse;
       Ossie Morse; King McDonald;
       Angela McDonald; Carlene P.
       Stevenson; Louis S. Morse; Rick
       Otten; Linda Morse Rothwell;
       Arthur H. Rothwell, III; Margarita
       Santiago; Daniel Murphy; Janet
       Weiss; Reagan Otten; Renee D.
       Dale; Frances Rothwell; Lisa
       Gilliam; Ricardo Santiago

                                 2
Mark L. Freed, Esq. (Argued)
Commonwealth of Pennsylvania
Department of Environmental
 Resources
555 North Lane
Suite 6015, Lee Park
Conshohocken, PA 19428-2233

 COUNSEL FOR APPELLEES

James M. Seif, in his capacity as
Secretary of the Pennsylvania
Department of Environmental
Protection

Pennsylvania Department of
Environmental Protection

Carol R. Collier, in her capacity as
Director of the Southeastern
Region of Department of
Environmental Protection

Pennsylvania Department of
Environmental Protection,
Southeast Region

Seth M. Galanter, Esq.
United States Department of Justice
Civil Rights Division
P.O. Box 66078
Washington, D.C. 20035-6078

 COUNSEL FOR AMICUS-
 APPELLANT

 United States of America

                         3
       Arthur H. Bryant, Esq.
       Trial Lawyers of Public Justice
       1717 Massachusetts Avenue, N.W.
       Suite 800
       Washington, D.C. 20036

        COUNSEL FOR AMICUS-
        APPELLANT

        Trial Lawyers for Public Justice
        Southern Poverty Law Center

OPINION OF THE COURT

Cowen, Circuit Judge.

This appeal presents the purely legal question of whether
a private right of action exists under discriminatory effect
regulations promulgated by federal administrative agencies
pursuant to section 602 of Title VI of the Civil Rights Act of
1964, 42 U.S.C. S 2000d et seq. The district court
determined that plaintiffs-appellants Chester Residents
Concerned for Quality Living ("CRCQL") could not maintain
an action under a discriminatory effect regulation
promulgated by the United States Environmental Protection
Agency ("EPA") pursuant to section 602 of Title VI. See 944
F. Supp. 413 (E.D. Pa. 1996). In so doing, it relied largely
on our decision in Chowdhury v. Reading Hosp. & Med.
Ctr., 677 F.2d 317 (3d Cir. 1982).

We find that Chowdhury is not dispositive on this issue.
Subsequent jurisprudence, namely Guardians Ass'n v. Civil
Serv. Comm'n, 463 U.S. 582, 103 S. Ct. 3221 (1983), and
its progeny, provides support for the existence of a private
right of action. Moreover, Chowdhury did not apply this
court's test for determining when it is appropriate to imply
a private right of action to enforce regulations. We agree
with the overwhelming number of courts of appeals that
have indicated, with varying degrees of analysis, that a
private right of action exists under section 602 of Title VI
and its implementing regulations. We will reverse.

                               4
I.

The non-profit corporation CRCQL brought suit against
the Pennsylvania Department of Environmental Protection
("PADEP") and James M. Seif, in his capacity as Secretary
of PADEP, and other related defendants. CRCQL alleges
that PADEP's issuance of a permit to Soil Remediation
Services, Inc., to operate a facility in the City of Chester, a
predominantly black community, violated the civil rights of
CRCQL's members.1 Specifically, the complaint asserts that
PADEP's grant of the permit violated: (1) section 601 of Title
VI of the Civil Rights Act of 1964, 42 U.S.C. S 2000d et seq.;2
(2) the EPA's civil rights regulations, 40 C.F.R.S 7.10 et
seq., promulgated pursuant to section 602 of Title VI;3 and
(3) PADEP's assurance pursuant to the regulations that it
would not violate the regulations. This appeal concerns only
Count Two.
_________________________________________________________________

1. The City of Chester is located in Delaware County, Pennsylvania, and
has a population of approximately 42,000, of which 65% is black and
32% is white. Delaware County, excluding Chester, has a population of
approximately 502,000, of which 6.2% is black and 91% is white.
CRCQL alleges that PADEP granted five waste facility permits for sites in
the City of Chester since 1987, while only granting two permits for sites
in the rest of Delaware County. It further alleges that the Chester
facilities have a total permit capacity of 2.1 million tons of waste per
year, while the non-Chester facilities have a total permit capacity of
only
1,400 tons of waste per year.

2. 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 (1994).

3. Section 602 of Title VI provides, in part, that:

        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 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 the financial assistance in connection with which the
       action is taken.

42 U.S.C. S 2000d-1.

                               5
PADEP has authority to issue or deny applications for
permits to operate waste processing facilities. See 35 Pa.
Cons. Stat. Ann. S 6018.101 et seq. (West 1993). PADEP
receives federal funding from the EPA to operate
Pennsylvania's waste programs pursuant to the Resource
Conservation and Recovery Act, 42 U.S.C. S 6901 et seq.,
and other federal sources.

Title VI and the EPA's civil rights regulations
implementing Title VI condition PADEP's receipt of federal
funding on its assurance that it will comply with Title VI
and the regulations. See 40 C.F.R. S 7.80(a) (1997).4 In part,
these regulations prohibit recipients of federal funding from
using "criteria or methods . . . which have the effect of
subjecting individuals to discrimination because of their
race, color, national origin, or sex . . . ." 40 C.F.R. S 7.35(b).

The district court dismissed Count One of CRCQL's
complaint without prejudice. It found that CRCQL failed to
allege intentional discrimination on the part of PADEP,
which is a required element for an action brought under
section 601 of Title VI.5 The court, however, granted leave
to amend Count One, affording CRCQL the opportunity to
allege intentional discrimination. CRCQL subsequently
informed the district court that it would not amend the
complaint, and the district court entered a final judgment
on that count.

The district court dismissed Counts Two and Three with
_________________________________________________________________

4. This provision requires:

       Applicants for EPA assistance shall submit an assurance with their
       applications stating that, with respect to their programs or
activities
       that receive EPA assistance, they will comply with the requirements
       of this Part. Applicants must also submit any other information
that
       the OCR determines is necessary for preaward review. The
       applicant's acceptance of EPA assistance is an acceptance of the
       obligation of this assurance and this Part.

40 C.F.R. S 7.80(a)(1).

5. See Alexander v. Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 716
(1985) (clarifying that the Court's decision in Guardians established that
"Title VI itself directly reache[s] only instances of intentional
discrimination").

                               6
prejudice, finding that no private right of action exists
under which CRCQL could enforce the EPA's civil rights
regulations.6 In reaching this determination, it relied on our
statements in Chowdhury, which concerned whether a
private plaintiff must first exhaust administrative remedies
under section 602 of Title VI and its implementing
regulations before bringing suit directly under section 601.
In holding that a plaintiff need not do so, we reasoned in
Chowdhury:

       Congress explicitly provided for an administrative
       enforcement mechanism, contained in section 602, by
       which the funding agency attempts to secure voluntary
       compliance and, failing that, is empowered to terminate
       the violator's federal funding. Under the regulations
       promulgated pursuant to this section, an aggrieved
       individual may file a complaint with the funding agency
       but has no role in the investigation or adjudication, if
       any, of the complaint. The only remedies contemplated
       by the language of the Act and the Regulations are
       voluntary compliance and funding termination. There
       is no provision for a remedy for the victim of the
       discrimination, such as injunctive relief or damages.

677 F.2d at 319-20 (footnotes omitted). The district court
took these statements to signify that no private right of
action exists under the EPA's civil rights regulations.
Although the district court noted that the Supreme Court's
decision in Guardians and the decisions of other courts of
appeals provide support for implying a private right of
action, it determined that Chowdhury required the opposite
conclusion. See 944 F. Supp. at 417 n.5 ("We find that the
Supreme Court has never decided the question of whether
there is an implied right of action under the regulations
and that our Court of Appeals's Chowdhury decision is
authoritative on us.").
_________________________________________________________________

6. CRCQL only appeals the dismissal of Count Two. We have no occasion
to consider the issue, raised by Count Three, of whether a private cause
of action exists to enforce 40 C.F.R. S 7.80(a), which requires applicants
for EPA assistance to "submit an assurance with their applications
stating that, with respect to their programs or activities that receive
EPA
assistance, they will comply with the requirements of [the regulations]."

                               7
II.

The district court had jurisdiction pursuant to 28 U.S.C.
S 1331. We have jurisdiction over this appeal pursuant to
28 U.S.C. S 1291. We exercise plenary review over the
district court's construction of Title VI and its conclusions
of law. See In re Corestates Trust Fee Litig., 39 F.3d 61, 63
(3d Cir. 1994); Unger v. Nat'l Residents Matching Program,
928 F.2d 1392, 1394 (3d Cir. 1991).

III.

It is important to distinguish at the outset between
section 601 of Title VI, which was the basis of Count One
of CRCQL's complaint, and section 602, which was the
basis of Count Two. A private right of action exists under
section 601, but this right only reaches instances of
intentional discrimination as opposed to instances of
discriminatory effect or disparate impact. See Alexander,
469 U.S. at 293, 105 S. Ct. at 716 ("Title VI itself directly
reache[s] only instances of intentional discrimination.").

In contrast, section 602 merely authorizes agencies that
distribute federal funds to promulgate regulations
implementing section 601. The EPA promulgated such
implementing regulations, which provide in relevant part:

       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. S 7.35(b). This regulation clearly incorporates a
discriminatory effect standard. The Supreme Court
subsequently held that the promulgation of regulations
incorporating this standard is a valid exercise of agency
authority. See Alexander, 469 U.S. at 292-94, 105 S. Ct. at
716. CRCQL seeks the right to proceed against PADEP
under this standard, rather than the more stringent
standard required under section 601.

                               8
A.

We look first to the applicable Supreme Court
jurisprudence. CRCQL contends that the Court's decisions
in Guardians and Alexander establish a private right of
action. Guardians is a fragmented decision consisting of five
separate opinions. It concerned a suit by black and
hispanic police officers alleging that certain lay-offs by their
department violated Title VI and Title VII of the Civil Rights
Act of 1964, as well as the Fourteenth Amendment, 42
U.S.C. SS 1981 and 1983, and other state and federal laws.
The Supreme Court has now made it undeniably clear that
Guardians stands for at least two propositions: (1) a private
right of action exists under section 601 of Title VI that
requires plaintiffs to show intentional discrimination; and
(2) discriminatory effect regulations promulgated by
agencies pursuant to section 602 are valid exercises of their
authority under that section. See Alexander, 469 U.S. at
292-94, 105 S. Ct. at 716.

i.

Guardians did not explicitly address whether a private
right of action exists under discriminatory effect regulations
promulgated under section 602. CRCQL contends that
Guardians nevertheless implicitly validated the existence of
a private right of action. CRCQL makes two principal
arguments in support of its position: (1) a majority of the
Court in Guardians determined that private plaintiffs in
disparate impact cases can recover injunctive or declarative
relief; and (2) if a private right of action did not exist, the
Court would have dismissed the plaintiffs' claims under the
regulations sua sponte for failure to state a claim.

A close reading of the opinions in Guardians reveals that
five Justices agreed that injunctive and declarative relief are
available in discriminatory effect cases. For instance,
Justice White stated in his opinion that he would allow
private plaintiffs to proceed under section 601 with a
discriminatory effect claim and to recover injunctive or
declaratory relief. See 463 U.S. at 584, 589-93, 103 S. Ct.
at 3223, 3226-28 (opinion of White, J.). Justice White did
not comment on section 602 and its implementing

                               9
regulations. We can infer, however, from his willingness to
allow a private plaintiff to proceed under section 601 in
cases of discriminatory effect that he would have allowed
private actions to proceed under section 602 and its
implementing regulations, where a discriminatory effect
standard applies.7

Justice Marshall stated in his dissent that he would allow
private plaintiffs in discriminatory effect cases to proceed
under section 601 but, unlike Justice White, would allow
them to recover injunctive, declaratory, or compensatory
relief. See 463 U.S. at 615, 103 S. Ct. at 3239-40 (Marshall,
J., dissenting). As with Justice White, we can infer that
Justice Marshall would have allowed similar actions under
section 602 and its implementing regulations.

Justice Stevens, joined by Justices Brennan and
Blackmun, determined: (1) private plaintiffs may seek
injunctive, declaratory, or compensatory relief under Title
VI; (2) intentional discrimination is a necessary element
under section 601 of Title VI; and (3) regulations that
incorporate a disparate impact standard are valid. See 463
U.S. at 641-45, 103 S. Ct. at 3253-55 (Stevens, J.,
dissenting, joined by Brennan and Blackmun, JJ.).
Although Justice Stevens did not distinguish between a
private right of action and an administrative remedy, he
concluded by saying, "[A]lthough petitioners had to prove
that the respondents' actions were motivated by an
invidious intent in order to prove a violation of[Title VI],
they only had to show that the respondents' actions were
producing discriminatory effects in order to prove a
violation of [the regulations]." Id. at 645, 103 S. Ct. at
3255.

Based on the foregoing, we can find an implicit approval
by five Justices of the existence of a private right of action
under discriminatory effect regulations implementing
section 602 of Title VI. We hesitate, however, to hold that
Guardians is dispositive of this appeal because the Court
did not directly address the issue now before us.
_________________________________________________________________

7. We recognize that this inference requires a supposition, because
sections 601 and 602 differ in substantial respects, as the discussion in
section III.C.ii., infra, indicates.

                               10
CRCQL's second argument based on Guardians also has
some merit. CRCQL argues that a private right of action
exists because the Guardians Court did not dismiss the
plaintiffs' action sua sponte for failure to state a claim. It is
important to remember, however, that no party in
Guardians raised, by Rule 12(b)(6) of the Federal Rules of
Civil Procedure or otherwise, the issue of whether a private
right of action exists under section 602 and its
implementing regulations. The Court did not have reason to
speak directly to the issue, and based on the foregoing
discussion, it is clear that it did not. Consequently, we find
that CRCQL's second argument also lacks sufficient force to
dispose of this appeal.

ii.

The Court offered some clarification of Guardians in its
unanimous decision in Alexander, which involved section
504 of the Rehabilitation Act of 1973, 29 U.S.C.S 794, and
its implementing regulations. With respect to Guardians,
the Alexander Court stated:

        In Guardians, we confronted the question whether
       Title VI of the Civil Rights Act of 1964, which prohibits
       discrimination against racial and ethnic minorities in
       programs receiving federal aid, reaches both intentional
       and disparate-impact discrimination. No opinion
       commanded a majority in Guardians, and Members of
       the Court offered widely varying interpretations of Title
       VI. Nonetheless, a two-pronged holding on the nature
       of the discrimination proscribed by Title VI emerged in
       that case. First, the Court held that Title VI itself
       directly reached only instances of intentional
       discrimination. Second, the Court held that actions
       having an unjustifiable disparate impact on minorities
       could be redressed through agency regulations
       designed to implement the purposes of Title VI. In
       essence, then, we held that Title VI had delegated to
       the agencies in the first instance the complex
       determination of what sorts of disparate impacts upon
       minorities constituted sufficiently significant social
       problems, and were readily enough remediable, to

                                11
       warrant altering the practices of the federal grantees
       that had produced those impacts.

469 U.S. at 292-94, 105 S. Ct. at 716 (citation and
footnotes omitted). The most plausible reading of this
language is that it confirms that a private right of action
exists under section 601 of Title VI and that the
promulgation of discriminatory effect regulations is a valid
exercise of agency authority under section 602.

CRCQL argues that the Court recognized the existence of
a private right of action in the following language from
Alexander:

        "Guardians, therefore, does not support petitioners'
       blanket proposition that federal law proscribes only
       intentional discrimination against the handicapped.
       Indeed, to the extent our holding in Guardians is
       relevant to the interpretation of S 504, Guardians
       suggests that the regulations implementing S 504,
       upon which respondents in part rely, could make
       actionable the disparate impact challenged in this case.

469 U.S. at 294, 105 S. Ct. at 716.8 Stitching together
CRCQL's arguments and those made by the Trial Lawyers
for Public Justice ("TLPJ") and the Southern Poverty Law
Center ("SPLC") as amici, the argument in favor of inferring
the existence of a private right of action from Alexander
proceeds as follows. The Alexander Court noted in the
above-quoted language that, to the extent that Title VI
jurisprudence is relevant to the Rehabilitation Act,
Guardians "suggests" that a party can proceed with a
disparate impact claim under section 504's implementing
regulations. This suggestion obtains, the argument must
go, because Guardians itself stands for the proposition that
a party can proceed with a disparate impact claim under
the regulations implementing section 602. Alexander,
_________________________________________________________________

8. The issue that the Alexander Court was addressing when it made
these statements was whether discriminatory intent is required to
establish a violation of section 504 of the Rehabilitation Act, 29 U.S.C.
S 794, and its implementing regulations. The Court ultimately
determined that some, but not all, disparate impact showings constitute
a prima facie case under the Rehabilitation Act. 469 U.S. at 292-99, 105
S. Ct. at 715-19.

                               12
therefore, implicitly confirms that Guardians recognized the
existence of a private right of action.

While CRCQL's argument has some merit, we are not
persuaded. The Court in Alexander spoke in the passive
voice -- "could make actionable" -- and did not indicate
whether Guardians stood for the proposition that a private
plaintiff, or the relevant agency, could proceed under a
disparate impact standard. CRCQL's argument requires the
inference that because Alexander was a suit brought by
private plaintiffs, and because Guardians was also brought
by private plaintiffs, the Alexander Court must have been
speaking of private plaintiffs when it used the passive voice.
This inference from Guardians may be justified, but we find
no direct authority in Alexander that either confirms or
denies the existence of a private right of action.
Consequently, we decline to hold that a private right of
action exists based on Guardians and Alexander alone.9
_________________________________________________________________

9. PADEP argues that the Court's opinion in United States v. Fordice, 505
U.S. 717, 112 S. Ct. 2727 (1992), indicates that no private right of
action
to enforce Title VI regulations exists. PADEP misconstrues Fordice.
Fordice addressed Title VI in a single footnote, which stated in relevant
part:

        Private petitioners reiterate in this Court their assertion that
the
       state system also violates Title VI, citing a regulation to that
statute
       which requires States to "take affirmative action to overcome the
       effects of prior discrimination." Our cases make clear, and the
       parties do not disagree, that the reach of Title VI's protection
       extends no further than the Fourteenth Amendment. We thus treat
       the issues in these cases as they are implicated under the
       Constitution.

Id. at 732 n.7, 112 S. Ct. at 2738 n.7 (citations omitted). Fordice did
not
indicate that private plaintiffs were barred from asserting a claim under
the regulation quoted. Rather, the Court merely noted that the
affirmative relief called for under the statute could not reach beyond
that
afforded by the Constitution itself. Hidden within the Court's statement
may be an indication that implementing regulations, such as the EPA's,
that incorporate a discriminatory effect standard are invalid, because
they extend further than the Fourteenth Amendment. Guardians and
Alexander, however, state that such regulations are valid. Moreover, we
do not believe that the Court would overturn Guardians and Alexander
in such an oblique manner.
13
B.

Having determined that the applicable Supreme Court
precedent is not dispositive, we look to our own precedent.
The district court relied on our statements in Chowdhury
for the conclusion that no private right of action exists. See
944 F. Supp. at 417. CRCQL, and TLPJ and SPLC as amici,
argue that reliance on Chowdhury is questionable because:
(1) Chowdhury did not apply this Circuit's three-prong test
for determining when it is appropriate to infer a private
right of action to enforce regulations; and (2) Chowdhury
was decided before Guardians.

The sole question in Chowdhury was whether a private
plaintiff must first exhaust administrative remedies under
section 602 and its implementing regulations before
bringing suit directly under section 601. In holding that a
plaintiff need not do so, we reasoned that "an aggrieved
individual may file a complaint with the funding agency but
has no role in the investigation or adjudication, if any, of
the complaint." 677 F.2d at 319 (footnotes omitted).
Moreover, we stated that "[t]here is no provision for a
remedy for the victim of the discrimination, such as
injunctive relief or damages." Id. at 320 (footnote omitted).

Chowdhury appears to decide that no private right of
action exists under the regulations, and we readily
understand why the district court reached this conclusion.
We nevertheless disagree with that conclusion. Chowdhury
does not hold that no private right of action exists under
section 602 and its implementing regulations. It merely
indicates that the regulations themselves do not expressly
provide for a significant role for private parties, which is
apparent on the face of the regulations. Chowdhury says
nothing about the appropriateness of implying a private
right of action. Section 602 and its implementing
regulations were only relevant in Chowdhury to the extent
that they, on their face, afforded private plaintiffs a
peripheral role in administrative proceedings. The
Chowdhury court took this peripheral role as an indication
that private plaintiffs should not have to pursue their
claims under the regulations before initiating a direct
action pursuant to their rights under section 601. The
district court misapplied our statements in Chowdhury.

                               14
Looking to our other precedent, CRCQL and amici cite
our decision in Pfeiffer v. Marion Ctr. Area Sch. Dist., 917
F.2d 779 (3d Cir. 1990), a post-Guardians opinion, in
support of the existence of a private right of action. Pfeiffer
involved a suit by a high school student alleging gender
discrimination in her dismissal from the local chapter of the
National Honor Society. The plaintiff asserted claims under
Title IX of the Education Amendments of 1972 and its
implementing regulations, as well as other federal and state
statutes. Pfeiffer is only significant to this appeal because
we made therein the following statements concerning
Guardians:

        In Guardians, the "threshold issue before the Court
       [was] whether . . . private plaintiffs . . . need to prove
       discriminatory intent to establish a violation of Title VI
       . . . and administrative implementing regulations
       promulgated thereunder." A majority of the Court
       agreed that a violation of the statute itself requires
       proof of discriminatory intent. A different majority
       seemed to suggest that proof of discriminatory effect
       suffices to establish liability when suit is brought to
       enforce the regulations rather than the statute itself.

917 F.2d at 788 (quoting Guardians, 463 U.S. at 584, 103
S. Ct. at 3223) (citations omitted).

It is of course informative to read an interpretation of
Guardians by a prior panel. The interpretation, however,
is dicta and not binding on this panel. Pfeiffer concerned
a claim of intentional gender discrimination, not
discriminatory effect. See id. ("This is, therefore, not a case
of discriminatory effect, but one of discriminatory
intention."). The issue before the court was whether the
district court's finding that school authorities dismissed the
plaintiff from the National Honor Society because of
premarital sex and not gender discrimination was clearly
erroneous. See id. at 780. The court had no reason to
consider the status of a private right of action under section
602 and its implementing regulations. In addition, the
above-quoted language from Pfeiffer, like the Supreme
Court's opinion in Alexander, is in the passive voice--
"when suit is brought"-- and fails to specify who may bring

                               15
suit to enforce the regulations. Although Pfeiffer is
instructive, we find it insufficient to dispose of this appeal.

C.

Since our own precedent does not resolve the matter, we
must now determine whether to imply a private right of
action. This court has established a three-prong test for
determining when it is appropriate to imply private rights of
action to enforce regulations. The test requires a court to
inquire: "(1) `whether the agency rule is properly within the
scope of the enabling statute'; (2) `whether the statute
under which the rule was promulgated properly permits the
implication of a private right of action'; and (3)`whether
implying a private right of action will further the purpose of
the enabling statute.' " Polaroid Corp. v. Disney, 862 F.2d
987, 994 (3d Cir. 1988) (quoting Angelastro v. Prudential-
Bache Sec., Inc., 764 F.2d 939, 947 (3d Cir. 1985)). We
discuss each prong in turn.

i.

There is no question that the EPA's discriminatory effect
regulation satisfies the first prong. The Supreme Court's
unanimous opinion in Alexander makes clear that "actions
having an unjustifiable disparate impact on minorities [can]
be redressed through agency regulations designed to
implement the purposes of Title VI." 469 U.S. at 293, 105
S. Ct. at 716 (footnote omitted).

ii.

The second and third prongs are the crux of this case. In
addressing the second, a court will consider the factors set
out by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95
S. Ct. 2080 (1975), and its progeny. See Angelastro, 764
F.2d at 947. The factors relevant here are: (1) whether there
is "any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one"; and (2)
whether it is "consistent with the underlying purposes of
the legislative scheme to imply such a remedy for the

                               16
plaintiff." Cort, 422 U.S. at 78, 95 S. Ct. at 2088 (citations
omitted).10

The United States, as amicus, contends that the
implication of a private right of action is consistent with
legislative intent because Congress acknowledged the
existence of the right when it amended Title VI. The
purpose of the amendment was to broaden the scope of
coverage of Title VI in response to the Supreme Court's
decision in Grove City College v. Bell, 465 U.S. 555, 104 S.
Ct. 1211 (1984), where the Court narrowly construed the
terms "program or activity."11 The United States cites
various items of legislative history which it claims indicates
an "understanding . . . [of] the existence of the
discriminatory effects regulations and the fact that they
could be enforced in federal court by private parties."
Amicus Br. at 21.

First, the United States relies on a House Report on an
early version of the relevant bill, which states that the
"private right of action which allows a private individual or
entity to sue to enforce Title IX would continue to provide
the vehicle to test [certain] regulations in Title IX and their
expanded meaning to their outermost limits." H.R. REP. NO.
963, Pt. 1, 99th Cong., 2d Sess. 24 (1986).12 Second, the
_________________________________________________________________

10. The other Cort factors are: (1) whether the plaintiff is "one of the
class for whose especial benefit the statute was enacted,-- that is, does
the statute create a federal right in favor of the plaintiff "; and (2)
whether the cause of action is "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." 422
U.S. at 78, 95 S. Ct. at 2088 (citations and internal quotation marks
omitted). Clearly, CRCQL satisfies the first. The second is irrelevant
because Title VI is federal law.

11. Section 601 of Title VI prohibits any "program or activity" receiving
Federal funds from discriminating on various grounds. See 42 U.S.C.
S 2000d.

12. Courts have regarded Title IX and Title VI jurisprudence as, more or
less, interchangeable. See Cannon v. University of Chicago, 441 U.S. 677,
694-96, 99 S. Ct. 1946, 1956-57 (1979) ("Title IX was patterned after
Title VI of the Civil Rights Act of 1964. Except for the substitution of
the
word `sex' in Title IX to replace the words `race, color, or national
origin'
in Title VI, the two statutes use identical language to describe the
benefited class. . . . The drafters of Title IX explicitly assumed that it
would be interpreted and applied as Title VI had been during the
preceding eight years." (footnotes omitted)).
17
United States relies on several legislators' comments in the
Congressional Record, where the legislators appear to
recognize the existence of a private right of action.13 Third,
the United States also relies on the following compilations
of testimony at congressional hearings: Civil Rights Act of
1984: Hearings on S. 2568 Before the Subcomm. on the
Const. of the Senate Comm. on the Judiciary, 98th Cong.,
2d Sess. 23-24, 153-54, 200 (1984); Civil Rights Restoration
Act of 1985: Joint Hearings on H.R. 700 Before the House
Comm. on Educ. & Labor and the Subcomm. on Civil &
Const. Rights of the House Comm. on the Judiciary, 99th
Cong., 1st Sess. 734, 1095, 1099 (1985). The first
compilation contains, inter alia, a memorandum by the
Office of Management and Budget ("OMB") which states
OMB's opinion that "every licensed attorney would be
empowered to file suit to enforce the `effects test'
regulations of agencies, challenging practices in every
aspect of every institution that receives any Federal
assistance." Civil Rights Act of 1984: Hearings on S. 2568
Before the Subcomm. on the Const. of the Senate Comm. on
the Judiciary, 98th Cong., 2d Sess. 527 (1984).

PADEP presents two responses. First, PADEP emphasizes
that the purpose of the amendment of Title VI was to
address the Supreme Court's decision in Grove City, not to
confirm or announce the existence of a private right of
action. Second, PADEP reminds the court that many of the
_________________________________________________________________

13. The United States quotes the following observations of Senator
Hatch:

       The failure to provide a particular share of contract opportunities
to
       minority-owned businesses, for example, could lead Federal agencies
       to undertake enforcement action asserting that the failure to
provide
       more contracts to minority-owned firms, standing alone, is
       discriminatory under agency disparate impact regulations
       implementing Title VI. . . . Of course, advocacy groups will be
able
       to bring private lawsuits making the same allegations before
federal
       judges.

134 CONG. REC. 4,257 (1988). The United States also quotes a portion of
the following statement by Representative Fields: "If a greater percentage
of minority than white students fail a bar exam or a medical exam . . .
will a State be subject to private lawsuits because the tests have a
disproportionate impact on minorities[.]" 130 CONG. REC. 18,880 (1984).

                               18
above-cited comments may only reflect the views of
individual members of Congress. PADEP does not, however,
cite to any statements in the Congressional Record or
elsewhere that would undermine those cited by the United
States. We therefore find that there is some indication in
the legislative history, here uncontroverted, of an intent to
create a private right of action, in satisfaction of the Cort
factors.

This finding, however, does not end our inquiry. The Cort
factors also require a court to determine whether it is
"consistent with the underlying purposes of the legislative
scheme to imply such a remedy for the plaintiff[.]" 422 U.S.
at 78, 95 S. Ct. at 2088. Relevant to this inquiry is PADEP's
argument that section 602 and the regulations situate the
EPA as, in essence, a gatekeeper to enforcement, and that
the implication of a private right of action would be
inconsistent with this legislative scheme. According to
PADEP, section 602 imposes what PADEP terms as "strict
preconditions" on the use of that section's enforcement
apparatus.14 Specifically, section 602 provides:

       [N]o such action shall be taken until the department or
       agency concerned has advised the appropriate person
       or persons of the failure to comply with the
       requirement and has determined that compliance
       cannot be secured by voluntary means. In the case of
       any action terminating, or refusing to grant or
       continue, assistance because of failure to comply with
_________________________________________________________________

14. Section 602 provides for the following enforcement apparatus:

       Compliance with any requirement adopted pursuant to this section
       may be effected (1) by the termination of or refusal to grant or to
       continue assistance under such program or activity to any recipient
       as to whom there has been an express finding on the record, after
       opportunity for hearing, of a failure to comply with such
       requirement, but such termination or refusal shall be limited to
the
       particular political entity, or part thereof, or other recipient as
to
       whom such a finding has been made and, shall be limited in its
       effect to the particular program, or part thereof, in which such
       noncompliance has been so found, or (2) by any other means
       authorized by law . . . .

42 U.S.C. S 2000d-1.

                               19
       a requirement imposed pursuant to this section, the
       head of the Federal department or agency shall file
       with the committees of the House and Senate having
       legislative jurisdiction over the program or activity
       involved a full written report of the circumstances and
       the grounds for such action. No such action shall
       become effective until thirty days have elapsed after the
       filing of such report.

42 U.S.C. S 2000d-1. EPA enforcement action can occur
only after the agency has negotiated these procedural
requirements. Should we find that it is appropriate to imply
a private right of action, PADEP emphasizes that private
plaintiffs would not have to negotiate these requirements.

In addition, PADEP emphasizes that the EPA's
regulations expressly provide private parties with an
administrative mechanism through which they can raise
allegations of unintentional discrimination. See 40 C.F.R.
SS 7.120-7.130. These regulations provide, in relevant part:

       A person who believes that he or she or a specific class
       of persons has been discriminated against in violation
       of this Part may file a complaint. The complaint may be
       filed by an authorized representative. A complaint
       alleging employment discrimination must identify at
       least one individual aggrieved by such discrimination.
       Complaints solely alleging employment discrimination
       against an individual on the basis of race, color,
       national origin, sex or religion shall be processed under
       the procedures for complaints of employment
       discrimination filed against recipients of federal
       assistance. Complainants are encouraged but not
       required to make use of any grievance procedure
       established under S 7.90 before filing a complaint.
       Filing a complaint through a grievance procedure does
       not extend the 180 day calendar requirement of
       paragraph (b)(2) of this section.

40 C.F.R. S 7.120(a) (citation omitted). In PADEP's
estimation, section 602 and the regulations situate the EPA
as a gatekeeper to enforcement, with private parties
submitting their allegations to the agency and its
discretion. PADEP contends that a private right of action is
inconsistent with this legislative scheme.

                               20
We recognize that PADEP's argument has some force.
There is, however, a more convincing counter-argument.
The procedural requirements in section 602 provide a fund
recipient with a form of notice that the agency has begun
an investigation which may culminate in the termination of
its funding. We note that a private lawsuit also affords a
fund recipient similar notice. If the purpose of the
requirements is to provide bare notice, private lawsuits are
consistent with the legislative scheme of Title VI.
Furthermore, unlike the EPA, private plaintiffs do not have
the authority to terminate funding.15 As a result, the
purpose that the requirements serve is not as significant in
private lawsuits, where the potential remedy does not
include the result (i.e., termination of funding) at which
Congress directed the requirements. Stated differently, the
requirements were designed to cushion the blow of a result
that private plaintiffs cannot effectuate. Based on the
foregoing, we find that the implication of a private right of
action would be consistent with the legislative scheme of
Title VI.

In sum, we find that there is some indication in the
legislative history of an intent to create a private right of
action and that the implication of a private right of action
would be consistent with the legislative scheme of Title VI,
in accordance with the relevant Cort factors. Accordingly,
we find that " `the statute under which the rule was
promulgated properly permits the implication of a private
right of action,' " Polaroid Corp., 862 F.2d at 994 (quoting
Angelastro, 764 F.2d at 947), and that the second prong of
the test is satisfied.
_________________________________________________________________

15. While it is well established that private plaintiffs do not have the
authority to compel a termination of funding, we make no determination
at this time as to what alternative remedies offer appropriate relief for
plaintiffs who prevail in actions to enforce agency regulations brought
pursuant to section 602. See NAACP v. Medical Center, Inc., 599 F.2d
1247, 1254 n.27 (3d Cir. 1979). See also Cannon, 441 U.S. at 711-17,
99 S. Ct. at 1965-68 (discussing the legislative history of Title VI as it
relates to the implication of a private remedy for victims of
discrimination). Rather, should relief prove warranted in this case, we
leave the determination of the appropriate remedy to the district court in
the first instance.

                               21
iii.

The third prong of the test requires the court to inquire
" `whether implying a private right of action will further the
purpose of the enabling statute.' " Id. (quoting Angelastro,
764 F.2d at 947). The United States contends that this
prong is satisfied because the implication of a private right
of action under section 602 and the regulations will further
the dual purposes of Title VI, which are to: (1) combat
discrimination by entities who receive federal funds; and (2)
provide citizens with effective protection against
discrimination. See Cannon, 441 U.S. at 704, 99 S. Ct. at
1961. A private right of action will further these purposes,
the argument goes, because it will deputize private
attorneys general who will enforce section 602 and its
implementing regulations. The United States, moreover,
points out that the EPA itself lacks sufficient resources to
achieve adequate enforcement.

We agree with the United States that, to the extent that
a private right of action will increase enforcement, the
implication of that right will further the dual purposes of
Title VI. Consequently, we find that the third prong of the
test is also satisfied.

iv.

Lastly, although no other court of appeals has rendered
a holding on the precise issue before this court, we note
that the decisions of other courts of appeals indicate
support for our reasoning. See, e.g., Latinos Unidos de
Chelsea v. Secretary of Hous. & Urban Dev., 799 F.2d 774,
785 n.20 (1st Cir. 1986) ("Under the statute itself, plaintiffs
must make a showing of discriminatory intent; under the
regulations, plaintiffs simply must show a discriminatory
impact." (citation omitted)); New York Urban League, Inc. v.
New York, 71 F.3d 1031, 1036 (2d Cir. 1995) ("Courts
considering claims under analogous Title VI regulations
have looked to Title VII disparate impact cases for
guidance. A plaintiff alleging a violation of the DOT
regulations must make a prima facie showing that the
alleged conduct has a disparate impact." (citations
omitted)); Castaneda by Castaneda v. Pickard, 781 F.2d

                               22
456, 465 n.11 (5th Cir. 1986) ("Thus a Title VI action can
now be maintained in either the guise of a disparate
treatment case, where proof of discriminatory motive is
critical, or in the guise of a disparate impact case, involving
employment practices that are facially neutral in their
treatment of different groups but that in fact fall more
harshly on one group than another. In this latter type of
case, proof of discriminatory intent is not necessary."
(citation omitted)); Buchanan v. City of Bolivar, Tenn., 99
F.3d 1352, 1356 n.5 (6th Cir. 1996) ("A plaintiff may
pursue a claim under a disparate impact theory as well.
However, a disparate impact theory is not applicable in the
case at hand." (citation omitted)); David K. v. Lane, 839
F.2d 1265, 1274 (7th Cir. 1988) ("It is clear that plaintiffs
may maintain a private cause of action to enforce the
regulations promulgated under Title VI of the Civil Rights
Act. Moreover, plaintiffs need not show intentional
discriminatory conduct to prevail on a claim brought under
these administrative regulations. Evidence of a
discriminatory effect is sufficient." (citation omitted));
Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1044-
45 (7th Cir. 1987) ("Although the voting of the Justices may
be difficult for the reader to discern at first, a majority of
the Court in Guardians Association concluded that a
discriminatory-impact claim could be maintained under
those regulations, although not under the statute."
(citations omitted)); Larry P. by Lucille P. v. Riles, 793 F.2d
969, 981-82 (9th Cir. 1984) ("[P]roof of discriminatory effect
suffices to establish liability when the suit is brought to
enforce regulations issued pursuant to the statute rather
than the statute itself." (footnote omitted)); Villanueva v.
Carere, 85 F.3d 481, 486 (10th Cir. 1996) ("Although Title
VI itself proscribes only intentional discrimination, certain
regulations promulgated pursuant to Title VI prohibit
actions that have a disparate impact on groups protected
by the act, even in the absence of discriminatory intent."
(citation omitted)); Elston v. Talladega County Bd. of Educ.,
997 F.2d 1394, 1406 (11th Cir. 1993) ("While Title VI itself,
like the Fourteenth Amendment, bars only intentional
discrimination, the regulations promulgated pursuant to
Title VI may validly proscribe actions having a disparate
impact on groups protected by the statute, even if those

                               23
actions are not intentionally discriminatory." (citations
omitted)); Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) ("There is no
doubt that the plaintiffs predicated this cause of action on
the regulations. As a result, the district court correctly
applied disparate impact analyses to their Title VI claims."
(footnote omitted)).

v.

In conclusion, the district court misapplied our decision
in Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317
(3d Cir. 1982). Chowdhury did not apply this court's three-
prong test for determining when it is appropriate to imply
a private right of action to enforce regulations and was
decided before the Supreme Court's decision in Guardians.
Applying that three-prong test, we hold that private
plaintiffs may maintain an action under discriminatory
effect regulations promulgated by federal administrative
agencies pursuant to section 602 of Title VI of the Civil
Rights Act of 1964. Accordingly, we will reverse and remand
for further proceedings, including a consideration of the
remaining grounds for dismissal contained in defendants'
Motion to Dismiss.

A True Copy:
Teste:

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

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