                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2001

S Camden Citizens v. NJ Dept Env Prot
Precedential or Non-Precedential:

Docket 01-2224




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Recommended Citation
"S Camden Citizens v. NJ Dept Env Prot" (2001). 2001 Decisions. Paper 292.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/292


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Filed December 17, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-2224 and 01-2296

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

v.

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

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

       Appellant in No. 01-2224

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

v.

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

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

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

       Appellants in No. 01-2296

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

Argued September 25, 2001

BEFORE: MCKEE, AMBRO, and GREENBERG,
Circuit Judges

(Filed: December 17, 2001)

       Olga D. Pomar (argued)
       Camden Regional Legal Services
       745 Market Street
       Camden, NJ 08102
       Jerome Balter
       Michael Churchill (argued)
       Public Interest Law Center of
       Philadelphia
       125 South 9th Street
       Suite 700
       Philadelphia, PA 19107
       Luke W. Cole
       Center on Race, Poverty & The
       Environment
       631 Howard Street
       Suite 330
       San Francisco, CA 94114

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

                               2
John J. Farmer, Jr.
Attorney General
Stefanie A. Brand (argued)
Deputy Attorney General
124 Halsey Street
P.O. Box 45029
Newark, NJ 07101
James M. Murphy
Patrick DeAlmeida
Deputy Attorneys General
Office of Attorney General of
New Jersey
Division of Law
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625

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

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

 Attorneys for appellant
St. Lawrence Cement Co.

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

 Attorneys for amicus curiae
Chamber of Commerce of the
United States

                           3
James M. Sheehan
General Counsel
Commonwealth of Pennsylvania
Suite 225 Main Capitol Building
Harrisburg, PA 17120

 Attorney for amicus curiae
Commonwealth of Pennsylvania

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

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

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

 Attorneys for amicus curiae
South Jersey Port Corporation

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

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

                        4
Daniel J. Popeo
Richard A. Samp
Washington Legal Foundation
2009 Massachusetts Ave., N.W.
Washington, D.C. 20036

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

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

 Attorneys for amicus curiae
American Road & Transportation
Builders Association

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

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

                           5
Lawrence W. Lindsay
Justin T. Loughry
Loughry and Lindsay, LLC
309 Market Street
Camden, NJ 08102

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

Thomas Henderson, Esq.
Janette L. Wipper, Esq.
Lawyers' Committee for Civil Rights
Under Law
1408 New York Avenue, N.W.
Washington, D.C. 20005-2124
Robert J. Del Tufo
Ellen O'Connell
Skadden, Arps, Slate, Meagher &
 Flom LLP
One Newark Center - 18th Floor
Newark, NJ 07102
Dennis Courtland Hayes
National Association for the
Advancement of
Colored People
4801 Mount Hope Road
Baltimore, MD 21215
Ronald Thompson
Garden State Bar Association
Law Office of Ronald Thompson
213 South Harrison Street
East Orange, NJ 07018

                           6
Ken Kimerling
Margaret Fung
Asian American Legal Defense
and Education Fund
99 Hudson Street - 12th Floor
New York, NY 10013
Elaine R. Jones
Theodore M. Shaw
Norman J. Chachkin
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, NY 10013-2897
Regina Waynes Joseph
Garden State Bar Association
320 South Harrison Street
16th Floor
East Orange, NJ 07018-1333

 Attorneys for amici curiae
Lawyers' Committee for Civil Rights
Under Law, National Association
for the Advancement of Colored
People, NAACP Legal Defense &
Educational Fund, Inc., Asian
American Legal Defense and
Education Fund and Garden State
Bar Association

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

 Attorney for amici curiae
Law Professors Concerned about
Environmental Justice

                        7
Julie H. Hurwitz
Alma L. Lowry
National Lawyers' Guild/
 Maurice and
Jane Sugar Law Center for
Economic and
Social Justice
645 Griswold, Suite 1800
Detroit, MI 48266
Denise Hoffner-Brodsky
The Sierra Club
85 Second Street, 2nd Floor
San Francisco, CA 94105
Douglas W. Henkin
Michele Host
Milbank, Tweed, Hadley &
 McCloy, LLP
1 Chase Manhattan Plaza
New York, NY 10005-1413

 Attorneys for amici curiae
Center for Constitutional Rights,
Center for Law in the Public
Interest, National Health Law
Program, National Senior Citizens
Law Center, New York City
Coalition to End Lead Poisoning,
New York Lawyers for the Public
Interest, National Lawyers'
Guild/Maurice and Jane Sugar
Law Center for Social and
Economic Justice, Puerto Rican
Legal Defense and Education Fund,
and the Sierra Club

                        8
       Michelle B. Alvarez
       Mark A. Izeman
       Eric A. Goldstein
       Natural Resources Defense Council
       40 West 20th Street
       New York, NY 10011

        Attorneys for amici curiae
       Natural Resources Defense Council
       and Environmental Defense

OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. OVERVIEW

This matter comes on before this court on appeals
by defendant-appellant New Jersey Department of
Environmental Protection ("NJDEP") and intervenor-
appellant St. Lawrence Cement Co., L.L.C. ("St. Lawrence")
from the district court's order granting preliminary
injunctive relief to plaintiffs, South Camden Citizens in
Action and ten residents of the Waterfront South
neighborhood of Camden, New Jersey. Plaintiffs brought
this action pursuant to 42 U.S.C. S 1983, as well as on
other bases, claiming NJDEP discriminated against them by
issuing an air permit to St. Lawrence to operate a facility
that would have an adverse disparate racial impact upon
them in violation of Title VI of the Civil Rights Act of 1964,
42 U.S.C. SS 2000d to 2000d-7.

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

                               9
discrimination, the plaintiffs do not have a right enforceable
through a 1983 action under the EPA's disparate impact
discrimination regulations. Because the district court
predicated its order granting injunctive relief on section
1983, we will reverse.

II. BACKGROUND AND PROCEDURAL HISTORY

A. Background

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

St. Lawrence supplies cement materials, primarily to the
ready-mix concrete industry. One aspect of St. Lawrence's
business is the processing of ground granulated blast
furnace slag ("GBFS"), a sand-like by-product of the steel-
making industry, used in portland cement. In 1998, St.
Lawrence wanted to open a GBFS grinding facility on a site
in Camden owned by the South Jersey Port Corporation
(the "Port"). In furtherance of this project, in March 1999
St. Lawrence signed a lease with the Port for the site and
initiated discussions with NJDEP with respect to obtaining
_________________________________________________________________

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

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

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

Thereafter, NJDEP issued a 33-page "Hearing Officer's
Report Responses to Public Comments on the Draft Air
Permit" for St. Lawrence. In the report, NJDEP addressed
the concerns raised by community members, including
environmental equity/environmental justice, preexisting
local environmental issues, St. Lawrence's emission limits,
the results of St. Lawrence's air quality impact analysis,
truck emission standards and carbon monoxide air quality
evaluation results, and the protection of the health and
safety of Waterfront South residents. Plaintiffs, however,
filed an administrative complaint with the EPA and a
request for a grievance hearing with NJDEP, as they alleged
that NJDEP's permit review procedures violated Title VI of
the Civil Rights Act of 1964 because the procedures did not
include an analysis of the allegedly racially disparate
adverse impact of the facility. NJDEP did not respond to the
grievance hearing request, and on October 31, 2000, issued
St. Lawrence's final air permit.

                               11
B. Procedural History

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

South Camden I, however, had a short shelf life. On April
24, 2001, the Supreme Court issued its decision in
Sandoval, 532 U.S. 275, 121 S.Ct. 1511, holding that
"[n]either as originally enacted nor as later amended does
Title VI display an intent to create a freestanding private
right of action to enforce regulations promulgated under
S 602. We therefore hold that no such right of action
exists." Id. at ___, 121 S.Ct. at 1523 (footnote omitted).
Obviously, Sandoval eliminated the basis for the court's
injunction in South Camden I, an effect that led St.
Lawrence to move to dissolve the injunction. The district
court, however, denied the motion, following which St.
Lawrence again sought similar relief or a stay of the
injunction pending appeal. The district court then allowed
plaintiffs to amend their complaint to add a claim to
enforce section 602 through section 1983. The court also
required supplemental briefing on plaintiffs' remaining
claims, namely, whether plaintiffs' intentional
discrimination charge and/or their section 1983 claim

                               12
could provide an alternate basis for relief. On May 10,
2001, the court issued a supplemental opinion and order
continuing the preliminary injunction based on plaintiffs'
section 1983 claim and again remanding the matter to
NJDEP for a Title VI analysis. See South Camden Citizens
in Action v. N.J. Dep't of Envtl. Prot., 145 F. Supp. 2d 505
(D.N.J. 2001) (South Camden II). In reaching its result the
court relied, inter alia, on Powell v. Ridge, 189 F.3d 387,
403 (3d Cir.), cert. denied, 528 U.S. 1046, 120 S.Ct. 579
(1999), in which we held that there was a private right of
action available to enforce a regulation implementing Title
VI and that a disparate impact discrimination claim could
be maintained under section 1983 for a violation of a
regulation promulgated pursuant to section 602. See South
Camden II, 145 F. Supp. 2d at 520, 525, 543. Immediately
thereafter, St. Lawrence unsuccessfully moved in the
district court for a stay of the preliminary injunction
pending appeal.

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

III. DISCUSSION

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

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

                               13
claim under section 1983 against NJDEP for violating
section 602 and its implementing regulations by failing to
consider the potentially adverse discriminatory impact of
permitting operation of the facility, and therefore enjoined
its operation until NJDEP made such a determination. 3 We
review the district court's order granting a preliminary
injunction for abuse of discretion, although we review
factual findings for clear error and questions of law de
novo. See AT&T v. Winback and Conserve Program, Inc., 42
F.3d 1421, 1426-27 (3d Cir. 1994).

We often have recognized that injunctive relief,
particularly preliminary relief, is an "extraordinary remedy
. . . which should be granted only in limited
circumstances." Id. (citation omitted). To obtain a
preliminary injunction, the moving party must
demonstrate: (1) the reasonable probability of eventual
success in the litigation, and (2) that it will be irreparably
injured if relief is not granted. Moreover, the district court
also should take into account, when relevant, (3) the
possibility of harm to other interested persons from the
grant or denial of the injunction, and (4) the public interest.
See In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137,
1143 (3d Cir. 1982). Thus, "a failure to show a likelihood of
success or a failure to demonstrate irreparable injury must
necessarily result in the denial of a preliminary injunction."
Id. at 1143.

We first consider the probability of plaintiffs' success in
the litigation and, indeed, as we find that their case is
legally insufficient, we will go no further. Naturally, in view
of Sandoval, the overarching legal issue on this appeal is
whether plaintiffs can advance a cause of action to enforce
section 602 of Title VI and its implementing regulations
through section 1983. If they cannot, then the only basis
on which they can obtain relief is to demonstrate that the
NJDEP engaged in intentional discrimination, a possibility
that we do not address on this appeal.
_________________________________________________________________

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

                               14
We start our legal analysis with a consideration of
Sandoval in which the Court held that a private right of
action is not available to enforce disparate impact
regulations promulgated under Title VI,4 thus overruling
Powell at least to the extent that it held to the contrary. See
Sandoval, 532 U.S. at ___, 121 S. Ct. at 1523. In Sandoval,
_________________________________________________________________

4. We have set forth conditions that can lead to the recognition of a
private right of action not explicitly created as follows:

       When a statute does not explicitly supply a private right of
action,
       two occasionally intersecting avenues may be explored for a
possible
       private right of enforcement. First, an implied private right of
action
       to enforce the statute may exist directly under the statute in
       accordance with the four-factor analysis of Cort v. Ash, 422 U.S.
66,
       78, 95 S.Ct. 2080, 2088 (1975). To establish an implied private
right
       of action under Cort v. Ash, the plaintiff must satisfy the first
       requirement--that the statute creates a federal right in favor of
the
       plaintiff. The plaintiff must then satisfy the three remaining Cort
v.
       Ash requirements relating to the existence of a remedy--that
       Congress intended to create a remedy, that the remedy is consistent
       with the legislative scheme, and that the cause of action is not
       traditionally relegated to state law. In sum, under Cort v. Ash the
       plaintiff bears the burden of establishing not only the existence
of a
       right, but also the existence of an intended private remedy.

         In appropriate cases, the second avenue for private enforcement of
        a federal statute is S 1983. In determining whether a private right
of
        action exists under S 1983, only two inquiries are relevant: one,
        whether the statute alleged to have been violated creates a federal
        right in favor of the plaintiff, and the other, whether Congress
has
        foreclosed the remedy of private enforcement. TheS 1983 analysis
        intersects with the Cort v. Ash analysis insofar as the plaintiff
under
        both analyses must establish the creation of a federal right. With
        respect to the existence of a remedy, however, the contrast between
        the two analyses is stark. Under Cort v. Ash the plaintiff must
        establish that Congress intended the remedy. UnderS 1983
        analysis, on the other hand, once a federal right is established,
the
       existence of a remedy is presumed because S 1983 itself provides
the
       authorization for private enforcement. The burden is on the
       defendant to establish that Congress intended to foreclose private
       enforcement.

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

                               15
the Court considered a challenge to the Alabama
Department of Public Safety's official policy of administering
its driver's license examination only in English as violative
of Title VI and its implementing regulations. See id. at ___,
121 S.Ct. at 1515. The Court held that "[n]either as
originally enacted nor as later amended does Title VI
display an intent to create a freestanding private right of
action to enforce regulations promulgated underS 602. We
therefore hold that no such right of action exists." Id. at
___, 121 S.Ct. at 1523. *In reaching its result in Sandoval,
the Court began by listing three aspects of Title VI that
"must be taken as given": (1) private individuals may sue to
enforce section 601 of Title VI and obtain both injunctive
relief and damages; (2) section 601 prohibits only
intentional discrimination; and (3) for the purposes of the
case, regulations promulgated pursuant to section 602
validly may proscribe disparate impact discrimination even
though it is permissible under section 601. See id. at ___,
121 S.Ct. at 1516-17. Then, the Court considered whether
section 602 regulations conferred a private right of action,
looking to its precedent interpreting Title VI and to the text
and structure of Title VI. See id. at ___, 121 S.Ct. at 1519.
First, the Court noted, based on its analysis of its holdings
in its prior Title VI cases, that it previously had not held
that there is such a private right of action under section
602. See id. at ___, 121 S.Ct. at 1517-21 (citing Lau v.
Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974) (holding that
section 601 prohibits disparate impact discrimination);
Cannon v. Univ. of Chicago, 441 U.S. 677, 694, 99 S.Ct.
1946, 1956 (1979) (holding that private right of action
exists to enforce Title IX, which is patterned after Title VI);
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98
S.Ct. 2733, 2746 (1978) (holding, contrary to Lau, that
section 601 proscribes only those classifications that would
violate the Equal Protection Clause of the Fifth Amendment,
namely intentional discrimination); Guardians Ass'n v. Civil
Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221 (1983)
(affirming Bakke's holding that section 601 prohibits only
intentional discrimination); Alexander v. Choate , 469 U.S.
287, 293, 105 S.Ct. 712, 716 (1985) (same)).

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

                               16
of action and that the regulations alone were insufficient to
create a private right of action. See id. at ___, 121 S.Ct. at
1520-22 ("Language in a regulation may invoke a private
right of action that Congress through statutory text created,
but it may not create a right that Congress has not.").
Therefore, the Court held that a private right of action was
not available to enforce regulations promulgated under
section 602. See id. at ___, 121 S.Ct. at 1523. However,
inasmuch as the plaintiffs in Sandoval did not advance a
cause of action under section 1983 to enforce Title VI and
its implementing regulations, the majority did not consider
whether such an action is available.5

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

Section 1983 provides, in relevant part:

       Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States
       or other person within the jurisdiction thereof to the
       deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to
_________________________________________________________________

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

       [T]o the extent that the majority denies relief to the respondents
       merely because they neglected to mention 42 U.S.C.S 1983 in
       framing their Title VI claim, this case is something of a sport.
       Litigants who in the future wish to enforce the Title VI
regulations
       against state actors in all likelihood must only reference S 1983
to
       obtain relief; indeed, the plaintiffs in this case (or other
similarly
       situated individuals) presumably retain the option of re-
challenging
       Alabama's English-only policy in a complaint that invokes S 1983
       even after today's decision.

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

Therefore, section 1983 provides a remedy for deprivation
under color of state law of "any rights . . . secured by the
Constitution and laws." In Maine v. Thiboutot , 448 U.S. 1,
6-8, 100 S.Ct. 2504, 2505-06 (1980), the Supreme Court
interpreted this language and held that causes of action
under section 1983 are not limited to claims based on
constitutional or equal rights violations. Rather, certain
rights created under federal statutes are enforceable
through section 1983 as well. This rule, however, is limited
by two well-recognized exceptions. First, a section 1983
remedy is not available "where Congress has foreclosed
such enforcement of the statute in the enactment itself."
Wright v. City of Roanoke Redevelopment & Hous. Auth.,
479 U.S. 418, 423, 107 S.Ct. 766, 770 (1987). Second, the
remedy is not available "where the statute did not create
enforceable rights, privileges, or immunities within the
meaning of S 1983." Id.

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

       First, Congress must have intended that the provision
       in question benefit the plaintiff. Second, the plaintiff
       must demonstrate that the right assertedly protected
       by the statute is not so `vague and amorphous' that its
       enforcement would strain judicial competence. Third,
       the statute must unambiguously impose a binding
       obligation on the States. In other words, the provision
       giving rise to the asserted right must be couched in
       mandatory, rather than precatory, terms.

Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct.
1353, 1359-60 (1997). If a plaintiff satisfies each of these
elements, and therefore establishes and identifies a federal
right that allegedly has been violated, a rebuttable
presumption that the right is enforceable through
section 1983 arises. See id. at 341, 117 S.Ct. at 1360; see
also Banks v. Dallas Housing Auth., 271 F.3d 605, 2001 WL
1285391, at *4 (5th Cir. Oct. 24, 2001). We have found two
circumstances, which in harmony with Wright, are

                               18
sufficient to rebut this presumption: where "Congress
specifically foreclosed a remedy under S 1983,[either]
expressly, by forbidding recourse to S 1983 in the statute
itself, or impliedly, by creating a comprehensive
enforcement scheme that is incompatible with individual
enforcement under S 1983." Powell, 189 F.3d at 401
(citations omitted). In the former case, the plaintiff 's claim
must fail. In the latter case, however, the burden shifts to
the defendant to "make the difficult showing that allowing
a S 1983 action to go forward in these circumstances `would
be inconsistent with Congress' carefully tailored scheme.' "
Id. (quoting Blessing, 520 U.S. at 346, 117 S.Ct. at 1362).

Here, plaintiffs seek to enforce a prohibition on disparate
impact discrimination that does not appear explicitly in
Title VI, but rather is set forth in EPA regulations. They
contend that the regulations are a valid interpretation of
Title VI.6 Section 601 of Title VI provides:

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

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

       Each Federal department and agency which is
       empowered to extend Federal financial assistance to
       any program or activity, by way of grant, loan, or
       contract other than a contract of insurance or
       guaranty, is authorized and directed to effectuate the
       provisions of section 2000d [Section 601] of this title
       with respect to such program or activity by issuing
       rules, regulations, or orders of general applicability
       which shall be consistent with achievement of the
_________________________________________________________________

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

                                19
       objectives of the statute authorizing financial
       assistance in connection with which the action is
       taken.

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

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

       . . .

        A recipient shall not use criteria or methods of
       administering its program which have the effect of
       subjecting individuals to discrimination because of
       their race, color, national origin, or sex, or have the
       effect of defeating or substantially impairing
       accomplishment of the objectives of the program with
       respect to individuals of a particular race, color,
       national origin, or sex.

40 C.F.R. SS 7.30 & 7.35(b). According to plaintiffs, these
statutory provisions and their complementary regulations
prohibiting discriminatory impacts in administering
programs create a federal right enforceable through section
1983.

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

                               20
In considering whether a regulation in itself can establish
a right enforceable under section 1983, we initially point
out that a majority of the Supreme Court never has stated
expressly that a valid regulation can create such a right. In
Guardians Ass'n Justice Stevens, joined by Justices
Brennan and Blackmun, wrote: "[I]t is clear that the S 1983
remedy is intended to redress the deprivation of rights
secured by all valid federal laws, including statutes and
regulations having the force of law." See Guardians Ass'n,
463 U.S. at 638, 103 S.Ct. at 3251. According to them, the
rationale of Thiboutot applied equally to statutes and
administrative regulations having the force of law. See id. at
638 n.6, 103 S.Ct. at 3251 n.6. But later in Wright, four
Justices expressed the contrary view. See Wright , 479 U.S.
at 437-38, 107 S.Ct. at 777-78 (O'Connor, J., dissenting).
Justice O'Connor, joined by Chief Justice Rehnquist,
Justice Powell, and Justice Scalia, wrote in dissent:

       In the absence of any indication in the language,
       legislative history, or administrative interpretation of
       the Brooke Amendment that Congress intended to
       create an enforceable right to utilities, it is necessary to
       ask whether administrative regulations alone could
       create such a right. This is a troubling issue not
       briefed by the parties, and I do not attempt to resolve
       it here. The Court's questionable reasoning that,
       because for four years HUD gave somewhat less
       discretion to the PHA's in setting reasonable utilities
       allowances, HUD understood Congress to have required
       enforceable utility standards, apparently allows it to
       sidestep the question. I am concerned, however, that
       lurking behind the Court's analysis may be the view
       that, once it has been found that a statute creates
       some enforceable right, any regulation adopted within
       the purview of the statute creates rights enforceable in
       federal courts, regardless of whether Congress or the
       promulgating agency ever contemplated such a result.
       Thus, HUD's frequently changing views on how best to
       administer the provision of utilities to public housing
       tenants becomes the focal point for the creation and
       extinguishment of federal `rights.' Such a result, where
       determination of S 1983 `rights' has been unleashed

                               21
       from any connection to congressional intent, is
       troubling indeed.

Id.

Notwithstanding the foregoing cautionary language, the
district court relied on Wright in holding that federal
regulations may create rights enforceable through section
1983. In Wright, the plaintiffs alleged the housing authority
violated a federal statute imposing a rent ceiling and the
statute's implementing regulations which required public
housing authorities to include a reasonable utility
allowance in tenants' rent. See id. at 419, 107 S.Ct. at 768.
The defendants argued that neither the statute nor the
regulations gave the tenants a right enforceable through
section 1983. See id. at 429-30, 107 S.Ct. at 773. In
response, the Court stated:

       We perceive little substance in this claim. The Brooke
       Amendment could not be clearer: as further amended
       in 1981, tenants could be charged as rent no more and
       no less than 30 percent of their income. This was a
       mandatory limitation focusing on the individual family
       and its income. The intent to benefit tenants is
       undeniable. Nor is there any question that HUD
       interim regulations, in effect when this suit began,
       expressly required that a `reasonable' amount for
       utilities be included in rent that a PHA was allowed to
       charge, an interpretation to which HUD has adhered
       both before and after the adoption of the Brooke
       Amendment. HUD's view is entitled to deference as a
       valid interpretation of the statute, and Congress in the
       course of amending that provision, has not disagreed
       with it.

        Respondent nevertheless asserts that the provision
       for a `reasonable' allowance for utilities is too vague
       and amorphous to confer on tenants an enforceable
       `right' within the meaning of S 1983 and that the whole
       matter of utility allowances must be left to the
       discretion of the PHA, subject to supervision by HUD.
       The regulations, however, defining the statutory
       concept of `rent' as including utilities, have the force of
       law . . ., they specifically set out guidelines that the

                               22
       PHAs were to follow in establishing utility allowances,
       and they require notice to tenants and an opportunity
       to comment on proposed allowances. In our view, the
       benefits Congress intended to confer on tenants are
       sufficiently specific and definite to qualify as
       enforceable rights under Pennhurst [State School &
       Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531
       (1981)] and S 1983, rights that are not, as respondent
       suggests, beyond the competence of the judiciary to
       enforce.

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

As we have indicated, the district court held, and the
appellees argue here, that Wright stands for the proposition
that valid federal regulations may create rights enforceable
under section 1983, to which the Blessing analysis applies.
Therefore, the appellees argue that because the EPA's
section 602 regulations are valid and enforceable, we
should apply the Blessing analysis and conclude that the
regulations create rights enforceable through section 1983.

The district court's holding was, however, erroneous
because, as the foregoing quotation from the Court's
opinion makes clear, Wright dealt with an issue that differs
from that presented in the district court and here. There,
the Court, in finding the statute and its implementing
regulations created a right enforceable through section
1983, focused on tying the right to a reasonable utility
allowance to Congress' intent to create federal rights
through the statute. The Court looked first to the statutory
provision creating the ceiling on tenants' rent, describing it
as "a mandatory limitation focusing on the individual family
and its income." Id. at 430, 107 S.Ct. at 773-74. Further,
it stated that Congress' intent with regard to the statute to
benefit tenants was "undeniable." Id. at 430, 107 S.Ct. at
774. Having reached this conclusion, it turned to the
regulations and found that they were entitled to deference
_________________________________________________________________

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

                               23
as valid administrative interpretations of the statute. Id.,
107 S.Ct. at 774. It afforded this deference, however, after
having found that Congress had conferred upon plaintiffs
that right by statute. Id., 107 S.Ct. at 773.

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

Similarly, although also relied upon by the district court,
none of our opinions in Alexander, Casey , or Powell nor
that of the Court of Appeals for the Ninth Circuit in Buckley
v. City of Redding, 66 F.3d 188 (9th Cir. 1995), justifies the
district court's conclusion that valid regulations may create
rights enforceable under section 1983. In Alexander, we
held that federal regulations governing the administration
of the Supplemental Food Program for Women, Infants and
Children created rights enforceable under section 1983 for
recipients of program assistance. See Alexander , 750 F.2d
at 261. But the right enforceable through section 1983,

                               24
namely notice of the right to a fair hearing upon
termination of benefits, could be traced to and was
consistent with the statute as it provided for cash grants to
local agencies to enable them to carry out health and
nutrition programs to make supplemental food available to
pregnant and lactating women and infants. Accordingly, the
statute created a right to supplemental food for those who
qualified. See id. at 253 & n.3.

We recognize that in Alexander we never expressly
identified the right as stemming from the statute.
Nevertheless we did not expressly analyze the question of
whether a federal regulation could create an enforceable
section 1983 right. Instead, after stating the general rule
that violations of federal statutes may be actionable under
section 1983 except where Congress has foreclosed section
1983 enforcement or the statute does not create
enforceable rights, we simply concluded that the regulation
created an enforceable right. See id. at 259.

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

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

                               25
only whether the federal Medicaid statute, not its
implementing regulations, created a federal right
enforceable through section 1983. See id. at 17 ("The
threshold issue in this case is whether [the plaintiff] can
assert a cause of action against the defendant state officials
under 42 U.S.C. S 1983 for alleged violation of the federal
medicaid statute."). Therefore, our broader statement was
dicta not binding here.

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

Powell, however, should not be overread. Initially, it held
that section 602 and the regulations under it included a
private right of action. Moreover, in then authorizing the
section 1983 action we merely rejected three specific
arguments: (1) that the individual defendants were not
"persons" amenable to suit under section 1983; 8 (2) that
Title VI possessed a comprehensive enforcement scheme
that precluded the assertion of the section 1983 claim; and
(3) that our precedents barring certain claims under Title IX
of the Education Amendments of 1972 should have barred
the action in Powell as well. See Powell , 189 F.3d at 400-
03. But Powell did not analyze the foundation issue that is
_________________________________________________________________

8. On appeal, the defendants did not advance this argument even though
the district court had relied on it. See Powell , 189 F.3d at 401.

                               26
central here, i.e., whether a regulation in itself can create a
right enforceable under section 1983. In Powell , we seemed
simply to assume for section 1983 purposes that it could.
See id. at 401 ("Once a plaintiff has identified a federal
right that has allegedly been violated, there arises a
`rebuttable presumption that the right is enforceable under
S 1983.' "). Thus, while plaintiffs rely heavily on Powell, that
reliance is misplaced, and, accordingly, quite aside from the
impact of Sandoval, Powell could not control the outcome
here.9

Similarly, the district court's reliance on Buckley was
misplaced. The issue there was whether the Federal Aid in
Sport Fish Restoration Act and its interpretive regulations
created an enforceable federal statutory right under section
1983. See Buckley, 66 F.3d at 189-90. The court, after
analyzing the relevant statutory and regulatory language,
held that it did. See id. at 193. Inasmuch as the court
stated expressly that it was determining whether the federal
statute and its implementing regulations conferred a
section 1983 right and not whether such a right arose
under the implementing regulations alone, Buckley is
distinguishable. See also Powell, 189 F.3d at 401; Farley v.
Philadelphia Hous. Auth., 102 F.3d 697, 699 (3d Cir. 1996)
("[The] cause of action arises strictly under[the statutory
provision.] Regulation S 966.57(b) merely interprets that
section."); Doe v. District of Columbia, 93 F.3d 861, 867
_________________________________________________________________

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

                               27
(D.C. Cir. 1996) (analyzing both statute and its
accompanying regulations in determining whether
enforceable section 1983 right existed); Tony L. v. Childers,
71 F.3d 1182, 1189 (6th Cir. 1995) (same); City of Chicago
v. Lindley, 66 F.3d 819, 827 (7th Cir.1995) (same); Martinez
v. Wilson, 32 F.3d 1415, 1421 & n.4 (9th Cir. 1994) (same);
Howe v. Ellenbecker, 8 F.3d 1258, 1263 (8th Cir. 1993)
(same), overruled by Blessing, 520 U.S. at 348, 117 S.Ct. at
1363; Albiston v. Me. Comm'r of Human Servs., 7 F.3d 258,
265 (1st Cir. 1993) (same), overruled by Blessing, 520 U.S.
at 348, 117 S.Ct. at 1363; Pinnacle Nursing Home v.
Axelrod, 928 F.2d 1306, 1313-14 (2d Cir. 1991) (same);
Samuels v. District of Columbia, 770 F.2d 184, 195 (D.C.
Cir. 1985) (same).

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

       An administrative regulation . . . cannot create an
       enforceable S 1983 interest not already implicit in the
       enforcing statute. The Supreme Court has never held
       that one could--to the contrary, members of the Court
       have expressed doubt that `administrative regulations
       alone could create such a right.'

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

                               28
Cir. 1990) (following Smith and concluding that "because
[the statutory provision] does not provide an enforceable
right, the [administrative regulation is] irrelevant to our
consideration of the employee's claim under section 1983").

The Court of Appeals for the Eleventh Circuit reached a
similar conclusion in Harris v. James, 127 F.3d 993 (11th
Cir. 1997). There, the court considered whether a Medicaid
regulation requiring states to provide non-emergency
transportation to and from providers created a right to such
transportation enforceable under section 1983. See id. at
996. The court began by reviewing the Supreme Court's
precedent governing whether violations of federal statutes
create section 1983 causes of action. See id. at 997-1005.
Then, the court turned to the specific question of whether
the regulation created a federal right. See id. at 1005.
There, like here, the requirement plaintiffs sought to
enforce "appear[ed] explicitly not in the Medicaid Act, but in
a federal regulation," with the plaintiffs claiming that "the
regulatory and statutory provisions create[d] a federal right
to transportation to and from providers." Id. The court
rejected this argument. See id. at 1009-10.

In doing so, it first acknowledged the relative dearth of
authority on this precise issue, noting that courts of
appeals are split and that the Supreme Court never
definitively addressed the matter. See id. at 1005-07 (citing
Wright, 479 U.S. at 437-38, 107 S.Ct. at 777-78 (O'Conner,
J., dissenting); Guardians Ass'n, 463 U.S. at 638, 103 S.Ct.
at 3251; Loschiavo v. City of Dearborn, 33 F.3d 548, 551
(6th Cir. 1994); Smith, 821 F.2d at 984). The court then
analyzed the majority opinion in Wright to ascertain
whether it rejected the dissent's view of cases involving
federal regulations, namely that administrative regulations
alone cannot create enforceable federal rights, and found
that it did not. See Harris v. James, 127 F.3d at 1007-08
("We conclude that the Wright majority did not hold that
federal rights are created either by regulations`alone' or by
any valid administrative interpretation of a statute creating
some enforceable right."). Therefore, the court rejected the
argument that a " `federal right' [may be found] in any
regulation that in its own right meets the three-prong
`federal rights' test," as well as the argument that

                               29
"enforceable rights [may be found] in any valid
administrative interpretation of a statute that creates some
enforceable right." Id. at 1008. Instead, it adopted the rule
that:

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

       . . .

        [But], if the regulation defines the content of a
       statutory provision that creates no federal right under
       the three-prong test, or if the regulation goes beyond
       explicating the specific content of the statutory
       provision and imposes distinct obligations in order to
       further the broad objectives underlying the statutory
       provision, we think the regulation is too far removed
       from Congressional intent to constitute a `federal right'
       enforceable under S 1983. To hold otherwise would be
       inconsistent with the driving force of the Supreme
       Court precedent requiring a Congressional intent to
       create federal rights and with the Supreme Court's
       directive that courts must find that Congress has
       unambiguously conferred federal rights on the plaintiff.

Id. at 1009 (footnotes omitted).

Applying this rule, the court concluded that the
regulation did not define the content of any specific right
conferred upon the plaintiffs by statute because the"nexus
between the regulation and Congressional intent to create
federal rights [was] simply too tenuous to create an
enforceable right to transportation." Id. at 1009-10. Finally,
the court stated:

       It may be that each of these statutes creates some
       federal right; similarly, it may be that the
       transportation regulation is a valid interpretation of
       each of these provisions under Chevron. However, we
       do not think these two factors, even if we found both
       to be true, would add up to a federal right of

                               30
       transportation. In each case the transportation
       regulation would be valid not because it reasonably
       defines the content of rights created by the statutory
       provisions, as did the regulation in Wright, but only
       because the regulation furthers the broad objectives
       underlying each statutory provision. . . . Instead, if the
       regulation is a valid interpretation of these provisions,
       it would be because transportation may be a
       reasonable means of ensuring the prompt provision of
       assistance, comparable assistance, or choice among
       providers. Such links to Congressional intent may be
       sufficient to support the validity of a regulation;
       however, we think they are too tenuous to support a
       conclusion that Congress has unambiguously
       conferred upon Medicaid recipients a federal right to
       transportation enforceable under S 1983.

Id. at 1011-12 (footnote omitted); see Kissimmee River
Valley Sportsman Ass'n v. City of Lakeland, 250 F.3d 1324,
1327 (11th Cir. 2001) (applying Harris and concluding that
"even more clearly . . . the instant regulation imposes new
and `distinct obligations' not found in the statute itself, and
thus is `too far removed from the Congressional intent to
constitute a federal right enforceable under S 1983' "), cert.
denied, 70 U.S.L.W. 3106 (Nov. 26, 2001) (No. 01-204); Doe
v. Chiles, 136 F.3d 709, 717 (11th Cir. 1998) (utilizing
Harris analysis and finding federal right was created by
statute and regulations that "further define[d] the contours
of the statutory right" at issue).

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

                               31
those rights defined by federal statutes [and federal
regulations]").10

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

Moreover, it is apparent that in the Court's section 1983
jurisprudence after Wright dealing with whether a plaintiff
is advancing an enforceable right, the primary
consideration has been to determine if Congress intended
to create the particular federal right sought to be enforced.
See Suter, 503 U.S. at 357, 112 S.Ct. at 1367 (stating issue
as "[d]id Congress, in enacting the Adoption Act,
unambiguously confer upon the child beneficiaries of the
Act a right to enforce the requirement that the State make
`reasonable efforts' to prevent a child from being removed
from his home, and once removed to reunify the child with
his family?"). Inasmuch as the Loschiavo court's approach
first did not examine whether Congress intended to create
the particular right at issue, we reject its holding that a
federal right may be found in any federal regulation that, in
its own right, meets the Blessing test.

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

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

                               32
decided correctly, and hold that the EPA's disparate impact
regulations cannot create a federal right enforceable
through section 1983. To the extent, if any, that Powell
might be thought on a superficial reading to suggest
otherwise, in the light of Sandoval we cannot regard it as
stating controlling law. Since the time of the Supreme
Court's decision in Sandoval, it hardly can be argued
reasonably that the right alleged to exist in the EPA's
regulations, namely to be free of disparate impact
discrimination in the administration of programs or
activities receiving EPA assistance, can be located in either
section 601 or section 602 of Title VI.

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

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

       In determining whether a private remedy is implicit in a statute
not
       expressly providing one, several factors are relevant. First, is
the
       plaintiff `one of the class for whose especial benefit the statute
was
       enacted,' that is, does that statute create a federal right in
favor of
       the plaintiff? Second, is there any indication of legislative
intent,
       explicit or implicit, either to create such a remedy or to deny
one?
       Third, is it consistent with the underlying purpose of the
legislative
       scheme to imply such a remedy for the plaintiffs? And finally, is
the
       cause of action one traditionally relegated to state law, in an
area
       basically the concern of the States, so that it would be
inappropriate
       to infer a cause of action based solely on federal law?

Cannon, 441 U.S. at 688 n.9, 99 S.Ct. at 1953 n.9 (quoting Tex. & Pac.
R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484 (1916)) (citations
and emphasis omitted). Although not expressly, the Sandoval Court
began, and ended, its analysis with the first factor, namely whether
Congress intended to create a right in favor of the plaintiffs. See
Sandoval, 532 U.S. at ___, 121 S.Ct. at 1520-21.

                               33
       It is immediately clear that the `rights-creating'
       language so critical to the Court's analysis in Cannon
       of S 601, is completely absent from S 602. Whereas
       S 601 decrees that `[n]o person . . . shall . . . be
       subjected to discrimination,' the text of S 602 provides
       that `[e]ach Federal department and agency . . . is
       authorized and directed to effectuate the provisions of
       [S 601].' Far from displaying congressional intent to
       create new rights, S 602 limits agencies to
       `effectuat[ing]' rights already created byS 601. And the
       focus of S 602 is twice removed from the individuals
       who will ultimately benefit from Title VI's protection.
       Statutes that focus on the person regulated rather
       than the individuals protected create `no implication of
       an intent to confer rights on a particular class of
       persons.' Section 602 is yet a step further removed: it
       focuses neither on the individuals protected nor even
       on the funding recipients being regulated, but on the
       agencies that will do the regulating. . . . So far as we
       can tell, this authorizing portion of S 602 reveals no
       congressional intent to create a private right of action.

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

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

12. It is important to note that relying upon the Sandoval Court's
assessment of Congress' intent in enacting section 602, set forth in the
context of determining whether there is a private right of action for the
purposes of determining whether an enforceable right exists, does not, as
the district court found, conflate the distinction between rights and
remedies. See South Camden II, 145 F. Supp. 2d at 517 ("The essence of

                                34
Inasmuch as the Court found previously that the only
right conferred by section 601 was to be free of intentional
discrimination, it does not follow that the right to be free
from disparate impact discrimination can be located in
section 602. In fact, it cannot. In sum, the regulations,
though assumedly valid, are not based on any federal right
present in the statute. Thus, this case is very similar to
Smith and Harris. Here, as there, the regulations do more
than define or flesh out the content of a specific right
conferred upon the plaintiffs by Title VI. Instead, the
regulations implement Title VI to give the statute a scope
beyond that Congress contemplated, as Title VI does not
establish a right to be free of disparate impact
discrimination. Thus, the regulations are "too far removed
from Congressional intent to constitute a `federal right'
enforceable under S 1983." Harris, 127 F.3d at 1009.

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

the NJDEP's and [St. Lawrence]'s misunderstanding of Sandoval lies in
their conflation of rights with remedies in their analysis of the Supreme
Court's holding in Sandoval."). It is true, as the district court
repeatedly
stated, that "[t]he holding in Sandoval is explicitly limited to the
determination that S 602 itself does not create a right of private
action,"
or in other words, a remedy. Id. at 518. It is also true, as the Sandoval
Court stated and the district court emphasized, that this court is "bound
by holdings, not language." Sandoval, 532 U.S. at ___, 121 S.Ct. at 1517.
That being said, we are not precluded from utilizing the Court's
discussion of Congress' intent in enacting Title VI, although raised in
the
context of whether Congress intended a remedy through section 602
directly, to help it discern whether Congress intended to create a right
that is enforceable through section 1983. Doing so respects the
difference between the Cort implied-right-of-action analysis and the
Blessing "rights" analysis because it relies upon the factor common to
both.

                               35
is to go so far as to have the application that plaintiffs wish,
Congress should take it there.

We emphasize that the implications of this case are
enormous and obviously, as the appearance of the many
amici curiae attests, have not been lost on interested
parties. It is plain that in view of the pervasiveness of state
and local licensing provisions and the likely applicability of
Title VI to the agencies involved, the district court's opinion
has the potential, if followed elsewhere, to subject vast
aspects of commercial activities to disparate impact
analyses by the relevant agencies. Indeed, we noted in
Powell that "[a]t least 40 federal agencies have adopted
regulations that prohibit disparate-impact discrimination
pursuant to [section 602]." Powell, 189 F.3d at 393. While
we do not express an opinion on whether that would be
desirable, we do suggest that if it is to happen, then
Congress and not a court should say so as a court's
authority is to interpret rather than to make the law.13

IV. CONCLUSION

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

13. St. Lawrence and NJDEP raise numerous other procedural and
substantive arguments in support of their appeals. In view of our result,
with one exception, we do not address them as the appeal is only from
the granting of preliminary injunction that we are reversing on other
grounds. Nevertheless, it is possible that on further proceedings the
issues involved in those arguments may be significant and thus we want
to make it clear that we are taking no position on those points. The one
exception is NJDEP's argument that the Eleventh Amendment bars this
action to the extent that it "prohibits the retrospective revocation of
[St.
Lawrence's] air permit." Br. at 44. We are constrained to consider this
argument as it is jurisdictional. See Chittister v. Dep't of Cmty. and
Econ.
Dev., 226 F.3d 223, 227 (3d Cir. 2000). After careful consideration, we
have concluded that the argument is without merit, and we therefore
reject it without discussion.

                               36
enforceable through section 1983 not already found in the
enforcing statute. Similarly, we reject the argument that
enforceable rights may be found in any valid administrative
implementation of a statute that in itself creates some
enforceable right. Applying these rules here, it is clear that,
particularly in light of Sandoval, Congress did not intend by
adoption of Title VI to create a federal right to be free from
disparate impact discrimination and that while the EPA's
regulations on the point may be valid, they nevertheless do
not create rights enforceable under section 1983. The
district court erred as a matter of law in concluding
otherwise and therefore also erred in finding that plaintiffs
are likely to succeed on the merits of their claim.
Consequently, we will reverse the district court's order of
May 10, 2001, granting preliminary injunctive relief and
will remand the case to the district court for further
proceedings consistent with this opinion.

                               37
McKEE, Circuit Judge, dissenting:

Plaintiffs seek to enforce regulations promulgated under
S 602 of Title VI of the Civil Rights Act of 1963, 42 U.S.C.
S 2000-1. The validity of those regulations is not in dispute
here. The regulations are set forth at 40 C.F.R.S 7.10 et
seq. and require the defendants to consider the potentially
adverse disparate impact of air permits that St. Lawrence
needs to operate the proposed facility.1

The majority's decision to reverse the district court's
grant of preliminary injunctive relief is based upon my
colleagues' conclusion that the district court erred"as a
matter of law . . . in finding that plaintiffs are likely to
succeed on the merits of their claim." Maj. Op. at 37.
However, our review here ought to be limited to determining
if plaintiffs have established "a reasonable probability of
succeeding on the merits. . . ." ACLU v. Reno , 217 F.3d
162, 173 (3d Cir. 2000) (emphasis added). We need look no
further than our recent decision in Powell v. Ridge, (3d Cir.)
cert denied, 528 U.S. 1046 (1999) to find the answer to that
question. The majority correctly notes that the Supreme
Court's subsequent decision in Alexander v. Sandoval, 531
U.S. 1049 (2001), overruled part of our holding in Powell.
However, Powell was not overruled in its entirety until
today. Ironically, the majority overrules Powell by engaging
in an analysis that overreads Sandoval while cautioning
that "Powell, . . . should not be overread." Maj. Op. at 26.
Accordingly, I respectfully dissent from the decision of my
colleagues.

I.

Before beginning my discussion I think it is important to
define the parameters of our inquiry. First, "we must affirm
unless we find the [district] court abused its discretion,
_________________________________________________________________

1. The extent to which plaintiffs have already suffered a disparate impact
of pollution is readily apparent from the factual summary set forth by
the majority. See Maj. Op. at 10 ("As a result, Waterfront South, though
only one of 23 Camden neighborhoods, hosts 20% of the city's
contaminated sites and, on average, has more than twice the number of
facilities with permits to emit air pollution than exist in the area
encompassed within a typical New Jersey zip code.").

                               38
committed an obvious error of law, or made a serious
mistake in considering proof." Bill Blass, Ltd v. SAZ Corp, et
al, 751 F.2d 152, 154 (3rd Cir. 1984) (emphasis added).
Our analysis is not driven by factual issues. Accordingly,
our inquiry turns on whether the district court committed
an "obvious error of law." If it committed such an error, it
abused its discretion in granting preliminary relief. If it did
not commit such an error, preliminary relief was
appropriate, and we must affirm. Second, there is no issue
about the validity of the applicable regulations enacted
pursuant to 42 U.S.C. S 602. The majority assumes they
are valid, just as the Supreme Court did in Sandoval. Third,

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

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

The majority concludes that the plaintiffs' action here is
"legally insufficient" and that the district court therefore
erred in granting preliminary injunctive relief, Maj. Op. at
14, because the disparate impact regulations plaintiffs seek
to enforce are "too far removed from Congressional intent to
constitute a `federal right' enforceable underS 1983." Id. at
35. Based upon that analysis, the majority concludes that
plaintiffs have no reasonable probability of success on the
merits and are therefore not entitled to injunctive relief.
This analysis not only ignores controlling precedent, it
overrules it.

II.

42 U.S.C. S 1983 provides:

       Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States
       or other person within the jurisdiction thereof to the

                               39
       deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to
       the party injured in any action at law, suit in equity, or
       other proper proceeding for redress.

Section 601 of Title VI provides:

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

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

Section 602 provides, in relevant part:

       Each Federal department and agency which is
       empowered to extend Federal financial assistance to
       any program or activity, by way of grant, loan, or
       contract other than a contract of insurance or
       guaranty, is authorized and directed to effectuate the
       provisions of section 2000d [Section 601] of this title
       with respect to such program or activity by issuing
       rules, regulations, or orders of general applicability
       which shall be consistent with achievement of the
       objectives of the statute authorizing financial
       assistance in connection with which the action is
       taken.

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

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

                               40
Department of Education that are virtually identical to the
regulations promulgated by the Environmental Protection
Agency that are at issue here.2 Plaintiffs in Powell brought
an action against state officials challenging the funding
mechanism for public education. They alleged, inter alia,
that the defendants' method of funding education in the
Commonwealth of Pennsylvania had a racially
discriminatory impact in violation of Title VI and its
implementing regulations.

The district court dismissed the complaint based upon its
conclusion that the plaintiffs did not "adequately allege that
a specific element of the Commonwealth's funding practices
adversely and disproportionately affects students of a
particular race." 189 F.3d at 393. On appeal, the
defendants asserted an alternative ground for upholding
the district court. They argued that the Title VI regulations
did not provide an enforceable right. We resolved that
inquiry by applying the four prong test established in Cort
v. Ash, 422 U.S. 66 (1975), and a similar inquiry set forth
in Angelastro v. Prudential-Bache Securities, Inc. 764 F.2d
939 (3d Cir. 1985). See Powell. 189 F.3d at 397 ("It is by
now well established that implication of a private right of
action for a statute requires analysis of the factors set forth
in Cort v. Ash."). We concluded that Title VI afforded
plaintiffs a right to enforce the prohibition against disparate
impact discrimination contained in the regulations
promulgated pursuant to S 602 of Title VI. We stated:

       The regulation at issue here, although promulgated by
       the Department of Education under 602 of Title VI,
       implements S 601 of Title VI. The Supreme Court
       precedent and our cases firmly establish that S 601 of
       Title VI gives rise to an implied right of action, at least
       for our purposes for securing injunctive relief.

189 F.3d at 399. We also concluded that the remaining
prongs of the relevant inquiry were satisfied and held that
_________________________________________________________________

2. The regulation at issue in Powell was codified at 34 C.F.R.
S 100.3(b)(2) and it prohibited recipients of applicable federal funds
from
"utilizing criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
. . . ." 189 F.3d at 393.

                               41
plaintiffs had therefore established "an implied private right
of action to enforce the regulations promulgated under 602
of Title VI." Id. There is no question that that portion of our
holding can not stand after the Supreme Court's
pronouncement in Sandoval. That was the precise issue
addressed in Sandoval and Powell was rendered a dead
letter as to that issue. However, that was also the only
issue decided in Sandoval. The Court's holding did not
address Count II of the complaint that was before the court
in Powell.

In Powell, we explained: "[p]laintiffs' second count
invokes one of the Civil Rights Acts, 42 U.S.C.S 1983 to
address the defendants' alleged violation of the regulation."
Id. We concluded that inasmuch as the complaint sought
only injunctive and declaratory relief defendants were
"persons acting under color of state law" under S 1983. Id.
at 401. We then cited Blessing v. Freestone, 520 U.S. 329
(1997) in stating that "once a plaintiff has identified a
federal right that has allegedly been violated, there arises a
rebuttable presumption that the right is enforceable under
S 1983.' " 189 F.3d at 401. Inasmuch as the relevant
statute did not explicitly foreclose a suit underS 1983, and
since that statute clearly lacked a "comprehensive
enforcement scheme that is incompatible with individual
enforcement under S 1983," we concluded that plaintiffs
could maintain an action to enforce the provisions of the
regulations promulgated under S 602 by resorting to
S 1983. We stated simply, "we see no reason to hold that
resort to S 1983 has been foreclosed here." Id. at 402.

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

                               42
presumption we referred to in Powell arises not because we
"assumed" a cause of action under S 1983, but precisely
because we held there was a cause of action under S 1983.
See Blessing, 520 U.S. at 1359. In Blessing , the Court was
asked to determine if a plaintiff could enforce a right under
S 1983. That was the issue, and it was the only issue. The
Court stated, "We granted certiorari to resolve disagreement
among the Courts of Appeals as to whether individuals may
sue state officials under S 1983 for violations of Title IV-D."
Id. at 339-40. The Court began that inquiry by citing Maine
v. Thiboutot, 448 U.S. 1 (1980), wherein the Court had held
that S 1983 provided a remedy for violations of federal
rights, not federal laws. The Blessing Court could not have
been clearer in stating: "[i]n order to seek redress through
S 1983, however, a plaintiff must assert the violation of a
federal right, not merely a violation of federal law." Blessing,
520 U.S. at 340 (emphasis in original). The Court then
applied the three factor test set forth in Wright v. Roanoke
Redevelopment and Housing Authority, 479 U.S. 418 (1987),
to determine if plaintiff had established a federal right. In
doing so, the Court noted that if plaintiff had established
such a right, it would be enforceable under S 1983 unless
Congress had foreclosed resort to S 1983 either in the text
of the applicable statute, or the comprehensive nature of
the relevant statutory scheme. Blessing, 520 U.S. at 340. It
is in this latter context that a presumption arises.
Accordingly, there is a presumption that S 1983 is available
once a federal right (as opposed to a violation of federal law)
is established. The presumption is rebutted if a defendant
can establish that Congress expressed its intent (explicitly,
or implicitly through the statutory scheme), that the statute
not be enforceable under the general rubric of S 1983.

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

                               43
does not allow a private cause of action to enforce the
regulations does not negate the fact that the result of
refuting those arguments was that we found plaintiffs had
a cause of action under S 1983, and that was part of our
holding. The majority's attempt to suggest the contrary is
tantamount to arguing that "merely rejecting" the argument
that 2 plus 2 does not equal 4 does not at the same time
establish that 2 plus 2 does equal 4.

The sleight of hand that transforms our mention of a
"presumption" in Powell into an assumption about the
application of S 1983 is even more puzzling when one
considers that the majority's own analysis states that the
relevant presumption does not arise unless the plaintiff can
establish a federal right has been violated. My colleagues
quite correctly state: "If a plaintiff . . . establishes and
identifies a federal right that allegedly has been violated, a
rebuttable presumption that the right is enforceable
through section 1983 arises." Maj. Op. at 18 (citing
Blessing). Therefore, the majority clearly recognizes that
Powell concluded that the plaintiffs there had a federal
right, arising from the regulations promulgated under Title
VI, and that the right could be enforced under S 1983
absent a demonstration that the cause of action was
precluded by the text of Title VI, or the statutory scheme.
We held that the defendants in Powell could not rebut the
presumption. Moreover, the majority here correctly
concedes that that was part of our holding in Powell, even
while attempting to transform the holding into a mere
assumption. See Maj. Op. at 13 ("In reaching its result the
[district] court relied, inter alia on Powell v. Ridge, in which
we held that there was a private right of action available to
enforce a regulation implementing Title VI and that a
disparate impact discrimination claim could be maintained
under section 1983 for a violation of a regulation
promulgated pursuant to section 602.") (emphasis added);
see also Maj. Op. at 26 ("We answered both questions in
the affirmative, stating that section 602 and the
Department of Education regulation at issue provided a
private right of action, and that plaintiffs could utilize
section 1983 to redress defendant's alleged violation of the
statute and regulation.") (emphasis added). As noted above,
it is clear that the first part of our holding in Powell does

                                44
not survive Sandoval. However, that is simply not true of
the second part of the holding. Sandoval never discussed
the S 1983 issue.

In Sandoval, plaintiffs brought a class action against the
Alabama Department of Public Safety in an attempt to
enjoin the Department from administering drivers license
examinations only in English. Plaintiffs alleged that
administering the test in English to Spanish speaking
residents had the effect of discriminating against them in
violation of S 601 of Title VI. The Court began its analysis
by stating that it was clear from the Court's own decisions,
Congress' amendments to Title VI, "and from the parties'
concessions that three aspects of Title VI must be taken as
given." 121 Sup. Ct. at 1516. These were that private
individuals could sue to enforce the prohibition of
intentional discrimination contained in S 601, that S 601
prohibits only intentional discrimination, and "we must
assume for purposes of deciding this case that regulations
promulgated under S 602 of Title VI may validly proscribe
activities that have a disparate impact on racial groups,
even though such activities are permissible underS 601."
Id. at 1516-17.

In writing for the majority and noting these three
principles were taken as given, Justice Scalia observed that
five justices of the Court had previously, in Guardians
Association v. Civil Serv. Comm'n of New York City , 463
U.S. 582 (1983), voiced that latter principle "at least as
alternative grounds for their decisions." Sandoval 121 S.Ct
at 1517. Justice Scalia noted that that position was"in
considerable tension with the rule of Bakke3 and Guardians
that S 601 forbids only intentional discrimination. . . ." Id.
However, inasmuch as the plaintiffs in Sandoval had not
challenged the regulations and had asserted a claim only
under S 601, the Court, "for the purposes of deciding this
case" assumed that the regulations proscribing disparate
impact discrimination "are valid." Id. at 1517.

The question before the Court was, therefore, a very
narrow one. The only issue was whether S 602 created a
free standing private cause of action to enforce regulations
_________________________________________________________________

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

                               45
precluding disparate impact discrimination. As noted
above, that was the only question that the Court granted
certiorari to review. The Court answered that narrow
inquiry as follows:

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

121 Sup. Ct. at 1523.

The majority seizes upon the "language of Sandoval," to
answer the very different inquiry posed by the district
court's injunction here. The majority does so even while
noting that the Court in Sandoval cautioned that "this
Court is `bound by holdings, not language.' " Maj. Op. at 35
n. 12 (quoting Sandoval 121 Sup. Ct. at 1517). The
language of Sandoval, however, can not read an issue into
that case that was not raised by the parties and not
decided by the Court.

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

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

                               46
on the point may be valid, they nevertheless do not create
rights enforceable under section 1983.").

However,

       This [an enforceable right under S 1983] is a different
       inquiry than that involved in determining whether a
       private right of action can be implied in a particular
       statute. In right of action cases we employ the four-
       factor Cort test to determine whether Congress
       intended to create the private remedy asserted for the
       violation of statutory rights. The test reflects a concern,
       grounded in separation of powers, that Congress rather
       than the courts controls the availability of remedies for
       violations of statutes. Because S 1983 provides an
       alternative source of express congressional authorization
       of private suits, these separation-of-powers concerns are
       not present in a S 1983 case. Consistent with this view,
       we recognize an exception to the general rule that
       S 1983 provides a remedy for violation of federal
       statutory rights only when Congress has affirmatively
       withdrawn the remedy.

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

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

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

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

                                47
which is even one step more removed than Powell from the
appropriate inquiry--as Sandoval did not even address
S 1983 to begin with.

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

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

Sandoval at 1527.

In reaching our second holding in Powell, we also noted
that

       Defendants' argument conflicts with the Supreme
       Court's own pronouncements. As previously noted, in
       Guardians five of the nine justices agreed that
       the administrative regulations incorporating a
       disparate impact standard are valid, see 463 U.S. at
       584 n. 2, 607 n. 27, 103 S.Ct. 3221, and thereafter the
       Court in Alexander5 characterized Guardians as so
       holding. See Alexander, 469 U.S. at 293, 105 S.Ct. 712
       ("[Guardians] held that actions having an unjustifiable
       disparate impact on minorities could be redressed
       through agency regulations designed to implement the
       purposes of Title VI."). Obviously, the Supreme Court
       did not believe that administrative regulations that
       prohibit disparate impact were an impermissible
_________________________________________________________________

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

                               48
       creation of substantive law, even though in its own
       earlier opinion in Guardians the Supreme Court had
       held that Title VI itself did not extend that far.

189 F.3d at 399-400.

Moreover, Supreme Court precedent affords additional
support for the plaintiffs' claim here. In Wright v. City of
Roanoke Redevelopment & Hous. Auth., supra , the plaintiffs
brought an action under S 1983 to enforce regulations that
defined "rent" under the relevant statute. Defendants
argued that the rights plaintiffs sought to enforce under
S 1983 were too amorphous and vague to confer an
enforceable right under S 1983. In rejecting that argument
the Supreme Court proclaimed that "[t]he regulations . . .
have the force of law." 479 U.S. at 431.

The majority attempts to distance the instant inquiry
from the analysis in Wright by arguing that the Court there
first examined the relevant statute and concluded that the
statute, itself, conferred the right plaintiffs were seeking to
enforce under S 1983. Only upon making that
determination, argues the majority, did the Court then
conclude that the relevant regulations could properly define
and flesh out the statutorily conferred right. The majority
then concludes that, inasmuch as the relevant right here
resides in the regulations, not Title VI, S 1983 can not
independently afford the relief that Congress did not
provide for in the controlling statute. Maj. Op. at 24.

It is true that the Court in Wright ordered its analysis as
the majority suggests. However, the Court stated that the
regulation had the force of law as part of its Blessing
analysis. Significantly, the Court applied that analysis not
to the provisions of the statute, but to the regulation itself.
Accordingly, Wright is consistent with, and supports, the
plaintiffs' position here that the regulations themselves may
give birth to a federal right so long as the regulations are
valid.

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

                               49
enforceable under S 1983."). Cases that we decided before
Powell reached the same conclusion. See Alexander v. Polk,
750 F.2d 250 (3d Cir. 1984)).

In Polk, we concluded that the regulation at issue created
an enforceable right. See Polk, 750 F.2d at 259 ("It is clear
that 7 C.F.R. S 246.24 created an enforceable right on
behalf of [plaintiffs] to be informed of the availability of fair
hearings."). The majority attempts to reconcile today's
opinion with Polk by stating that the right identified there
could be "traced to and was consistent with the statute".
Maj. op. at 25. We ought not dismiss Polk so easily
however, given our pronouncement in Powell. Although we
did not cite Polk in Powell, we were clearly aware of the Polk
analysis, and it is consistent with our result in Powell.
Furthermore, although Polk was decided before Blessing, it
is clear that the analysis in Polk is consistent with a
Blessing analysis, and the focus upon congressional intent.
See Polk, 750 F.2d at 259 ("The provision was intended to
safeguard the legal rights of WIC beneficiaries by informing
them of fair hearing procedures.").

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

Lastly, in keeping with the tendency to rely upon
"language" that is favorable, and distinguish contrary
pronouncements as "dicta," the majority dismisses our
decision in West Virginia Univ. Hospitals v. Casey, 885 F.2d
11 (3rd Cir. 1989) as "dicta." Maj. op. at 26. In Casey, we
interpreted Wright and Polk as standing for the proposition
that regulations, as well as statutes, can create rights that
are enforceable under S 1983. There we stated,"valid
_________________________________________________________________

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

                                50
federal regulations as well as federal statutes may create
rights enforceable under section 1983," and we cited
Wright, and Polk. 885 F.2d at 18. I readily concede that
Casey involved only a statute, not regulations, and
therefore, this statement was "dicta" just as the majority
states. However, I think it noteworthy that my colleagues so
readily dismiss statements from our own jurisprudence as
"dicta" while relying upon dicta from cases that support its
analysis and identifying the "dicta" as "teachings." See Maj.
Op. at 32-33 ("we follow Wright, in accordance with its
actual holding, the teaching of Sandoval, and the holdings
in Harris and Smith, which we believe the courts of appeals
decided correctly").

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

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

121 Sup. Ct. at 1527.

Conclusion

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

                                 51
by Sandoval. I believe that the district court was clearly
correct in concluding that plaintiffs can demonstrate a
"reasonable probability of success" on the merits.7

A True Copy:
Teste:

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

_________________________________________________________________

7. Inasmuch as the majority's analysis is limited to the first prong of
the
four part test for upholding a preliminary injunction I have not
discussed whether plaintiffs have shown that they will be irreparably
harmed by the denial of relief, whether granting the preliminary relief
will result in even greater harm to the defendants or whether granting
preliminary relief will be in the public interest. See Allegheny Energy
Inc.
v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) citing ACLU v. Blackhorse
Pike Regional Bd. Of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en
banc)).
                                52
