335 F.3d 932 (9th Cir. 2003), 01-36172, Save Our Valley v. Sound Transit

Docket Nº:01-36172
Citation:335 F.3d 932
Party Name:Save Our Valley v. Sound Transit
Case Date:July 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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335 F.3d 932 (9th Cir. 2003)

SAVE OUR VALLEY, Plaintiff-Appellant,


United States Court of Appeals, Ninth Circuit

SOUND TRANSIT (Central Puget Sound Regional Transit Authority); Bob White, Sound Transit Executive Director; Perry Weinberg, Sound Transit SEPA, Responsible Official;

Transportation Dept U.S. Federal Transit Administration; Helen Knoll, Federal Transit Administration Regional Administrator Region X, Defendants-Appellees,


Sound Transit SEPA Responsible Official, Defendant.

No. 01-36172.

United States Court of Appeals, Ninth Circuit

July 10, 2003.

Argued and Submitted Sept. 9, 2002.

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[Copyrighted Material Omitted]

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Michael W. Gendler, Bricklin & Gendler, LLP, and Eric Schnapper, University of Washington School of Law, of Seattle, Washington, for the plaintiff-appellant.

Desmond L. Brown, Central Puget Sound Regional Transit Authority, and Paul J. Lawrence and James A. Goeke, Preston Gates & Ellis LLP, of Seattle, WA, for the defendant-appellee.

Kimberly West-Faulcon of Los Angeles, CA, and Elaine R. Jones, Norman J. Chachkin, and James L. Cott of New York, NY, for amicus curiae NAACP Legal Defense and Education Fund, Inc.

Luke W. Cole of San Francisco, CA, for amicus curiae Center on Race, Poverty and the Environment.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief Judge, Presiding. D.C. No. CV-00-00715-BJR.

Before: HILL, [*] GOULD, and BERZON, Circuit Judges.

Opinion by Judge GOULD; Dissent by Judge BERZON.


GOULD, Circuit Judge.

Save Our Valley, a community group, challenges the Central Puget Sound Regional Transit Authority's plan to build a light-rail line through the Rainier Valley south of Seattle, Washington. Save Our Valley argues that the project will have the effect of discriminating against Rainier Valley residents based on race in violation of a Department of Transportation regulation. The primary question before us is whether that Department of Transportation regulation creates an individual federal right that can be enforced under the Civil Rights Act, 42 U.S.C. § 1983. Because we conclude that the regulation does not create such a right, we affirm the district court's summary judgment.


The Central Puget Sound Regional Transit Authority ("Sound Transit") is charged with building a light-rail line to connect the Northgate area in north Seattle with Sea-Tac Airport in Sea-Tac, Washington. The preferred twenty-one--mile route is proposed to pass through several Seattle neighborhoods, including south Seattle's Rainier Valley, a neighborhood populated predominantly by minority residents. The 4.6-mile segment through Rainier Valley is to be built at street level. Most of the segments through other neighborhoods are to be elevated above street level or to be built underground.

As pertinent to this appeal, Save Our Valley ("SOV") filed suit under 42 U.S.C. § 1983 against Sound Transit alleging that the street-level alignment through Rainier Valley will cause disproportionate adverse impacts to minority residents, including the taking of residential and commercial properties, the displacement of community facilities, the disruption of businesses, and safety problems. 1 SOV

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alleged that Sound Transit's plan violated a Department of Transportation "disparate impact" regulation--promulgated pursuant to Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq.--that prohibits recipients of federal funds (like Sound Transit) from taking actions that have the effect of discriminating on the basis of race. 2 SOV argued that this Department of Transportation regulation creates an individual federal right that SOV can enforce under 42 U.S.C. § 1983.

The district court disagreed that the regulation created such a right and granted summary judgment to Sound Transit. It then affirmed--without explanation--the clerk of court's taxation of $5,310.55 in costs against SOV as the losing party pursuant to Rule 54(d). This appeal followed.


The primary question in this appeal is whether the Department of Transportation's disparate-impact regulation creates an individual federal right that can be enforced through a § 1983 action. The answer to that specific question depends upon the answer to a more general question: Can a federal agency's regulations ever create individual rights enforceable through § 1983? We have never ruled on this fundamental question, which has divided our sister circuits. But because of controlling Supreme Court precedent, we hold

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that an agency regulation cannot create individual rights enforceable through § 1983.

Section 1983 creates a cause of action against any person who, acting under color of state law, abridges "rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. The Supreme Court has held that only violations of rights, not laws, give rise to § 1983 actions. Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). This makes sense because § 1983 merely provides a mechanism for enforcing individual rights "secured" elsewhere, i.e., rights independently "secured by the Constitution and laws" of the United States. "One cannot go into court and claim a 'violation of § 1983'--for § 1983 by itself does not protect anyone against anything." Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268 (quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)).

The Third, Fourth, and Eleventh Circuits have held that an agency regulation cannot create an individual federal right enforceable through § 1983. See S. Camden Citizens in Action v. New Jersey Dep't. of Envtl. Prot., 274 F.3d 771, 784, (3d. Cir. 2001); Smith v. Kirk, 821 F.2d 980, 984 (4th. Cir. 1987); Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997). These courts reasoned the same way. They began by surveying the Supreme Court's § 1983 cases. In those cases, the courts noted, the Supreme Court's persistent focus was on tying the claimed right to Congress's intent (if any) to create the right. S. Camden Citizens in Action, 274 F.3d at 788; Harris, 127 F.3d at 1007. This focus on Congress's intent, paired with the Supreme Court's treatment of regulations as mere "administrative interpretations of the statute" in those cases, persuaded the courts that the Supreme Court's § 1983 jurisprudence is founded on the principle that Congress creates rights by statute, and that valid regulations merely "define" or "flesh out" the contents of those rights. S. Camden Citizens in Action, 274 F.3d at 790; Harris, 127 F.3d at 1008-09. 3

On the other side of the circuit split, the District of Columbia and Sixth Circuits have held that an agency regulation can create an individual federal right. See Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985); Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994). These courts' holdings were based on a broad reading of the Supreme Court's decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the first to hold that a violation of statutory rights may be remedied through § 1983. Samuels, 770 F.2d at 199. Although Thiboutot involved the violation of a statute, not a regulation, the D.C. Circuit (and, tacitly, the Sixth Circuit) reasoned that Thiboutot 's broad analysis of the " 'laws' clause" of § 1983 suggested that § 1983 could be used to remedy violations of all valid federal laws, including regulations. Id.

The Supreme Court has never addressed this issue directly, so no single Supreme Court precedent controls our decision

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in this case. Nonetheless, we begin our analysis with two recent Supreme Court decisions--Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)--that are important because they have strengthened the legal foundation underlying the Third, Fourth, and Eleventh Circuits' holdings and eroded the legal foundation underlying the D.C. and Sixth Circuits' holdings. To evaluate the various circuit courts' holdings (as we do below), one must consider them in the new context of Sandoval and Gonzaga.

In Sandoval, 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 532 U.S. at 278-79, 121 S.Ct. 1511. The plaintiffs claimed that the implementing regulations--which were § 602 disparate-impact regulations virtually identical to those in this appeal--created a private right of action. Id. The Court rejected the claim, basing its analysis not on the regulation 's text but on the statute 's text. Id. at 293, 121 S.Ct. 1511. The Court held that only Congress by statute can create a private right of action. Id. at 291, 121 S.Ct. 1511.

Although the Sandoval Court addressed only one kind of federal right--implied rights of action--its reasoning has broader implications. The Court suggested that only Congress by statute can create individual rights of any kind (including, we conclude, rights enforceable through § 1983). Even though the plaintiff alleged that the disparate-impact regulations created the claimed right, the Court never performed any analysis of the regulations themselves (as SOV would have us do in this case). The Court wrote:

The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative.

532 U.S. at 286-87, 121 S.Ct. 1511 (citations omitted) (emphasis...

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