709 F.2d 1521 (D.C. Cir. 1983), 81-1389, Council of and for Blind of Delaware County Valley, Inc. v. Regan

Docket Nº:81-1389.
Citation:709 F.2d 1521
Party Name:COUNCIL OF AND FOR THE BLIND OF DELAWARE COUNTY VALLEY, INC., et al., Appellants, v. Donald T. REGAN, Secretary of the Treasury, et al.
Case Date:June 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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709 F.2d 1521 (D.C. Cir. 1983)


INC., et al., Appellants,


Donald T. REGAN, Secretary of the Treasury, et al.

No. 81-1389.

United States Court of Appeals, District of Columbia Circuit

June 10, 1983

Argued 11 Jan. 1982.

Argued En Banc 1 Dec. 1982.

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Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 76-00467).

William C. McNeill, III, with whom Eduardo Pena, Jr., Washington, D.C., was on the brief, for appellants.

James Robertson, Washington, D.C., with whom William L. Robinson, Washington, D.C., was on the brief for amicus curiae urging reversal and remand for discovery and trial.

John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., and Richard S. Isen, Bruce H. Cameron and Bonnie L. Gay, Attys., Dept. of Treasury, Washington, D.C., were on the brief for appellees. Michael J. Ryan and Kenneth M. Raisler, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellees.


Opinion for the Court filed by Circuit Judge WILKEY.

Separate opinion concurring in part and dissenting in part filed by Chief Judge, SPOTTSWOOD W. ROBINSON, III, with whom Circuit Judges J. SKELLY WRIGHT, WALD, MIKVA and HARRY T. EDWARDS join.

WILKEY, Circuit Judge:

In this suit appellants, two individuals and seven organizations located in various places in the United States, challenge the way in which the Office of Revenue Sharing handles complaints that funds it distributes in block grants are being used in particular programs in an illegally discriminatory manner. The district court held that appellants failed to state a claim upon which relief could be granted. Because we conclude that no federal statute or provision of the Constitution authorizes the type of action appellants have brought, we affirm the district court's decision.


In 1972 Congress enacted the State and Local Fiscal Assistance Act 1 (Revenue Sharing Act), thereby giving legal effect to a concept which had been proposed intermittently for more than 20 years 2--that the federal government make general revenue grants to state and local governments with no strings attached. 3 However, the idea of providing state and local governments with unlimited flexibility did not receive unanimous support. Some members of Congress were disturbed at the specter of permitting state and local officials, who had sometimes ignored or violated the civil rights of minorities and women, to expend federal funds without some accountability. 4

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Accordingly, the 1972 legislation included a provision which prohibited state and local governments from using revenue sharing funds in programs that discriminated on the basis of race, color, national origin, or sex. 5

In 1976 the revenue sharing program was extended. 6 At that time Congress, responding to complaints that the Office of Revenue Sharing (ORS) was not adequately monitoring local government compliance with the nondiscrimination provision 7 (section 122), broadened the scope of section 122, 8 specified timetables the ORS was to meet in resolving discrimination complaints, 9 and authorized private citizen suits to enforce the provision. 10

On 22 March 1976 a group of organizations and individuals 11 brought the present action against the Secretary of the Treasury, the Director of the ORS, and the Chief of the Civil Rights Branch of the ORS. In their complaint appellants alleged that each of the appellants resided in a locality which received funds under the Revenue Sharing Act; that the jurisdiction in which each lived was using those funds in a discriminatory manner in violation of section 122; and that each had filed an administrative complaint with the ORS to no avail. After the initial complaint was filed, the district court dismissed the case, holding that appellants lacked standing to challenge the ORS's actions. On appeal, this court reversed that decision. 12

On remand appellants filed the amended complaint which is the focus of the present dispute. In that complaint appellants first alleged that the ORS had violated the Revenue Sharing Act by "failing to adhere to statutory and regulatory time limits" for resolving discrimination complaints and by failing to impose sanctions or take other steps effectively to enforce the "civil rights enforcement program." 13 Appellants also alleged that the ORS's failure to perform its duties violated the Administrative Procedure Act 14 (APA) and the Fifth Amendment. 15

The relief sought by appellants, commensurate with the nationwide scope of the suit, was extremely broad based. The target of the action was the ORS's entire civil rights enforcement effort. Appellants

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asked the court, inter alia, to order the ORS to (1) "ensure that revenue sharing funding is not awarded to state and local governmental agencies which engage in discriminatory practices," 16 (2) "issue regulations which adequately enforce [ORS's] civil rights obligations," 17 (3) submit a "good faith request for each annual budgetary appropriation which includes provision for compliance positions sufficient to secure [ORS's] duties under Sec. 122," 18 and (4) fill "each civil rights compliance position immediately upon its opening." 19 Appellants also requested that the district court retain jurisdiction of the action until the ORS had "fully complied with the orders" issued by the court. 20 In essence, appellants asserted that the ORS was not adequately enforcing the nondiscrimination provision, and they asked the court to do whatever was necessary to ensure that the ORS improved its performance--including specific directions on what regulations to issue and what budgetary requests to make of Congress. 21

On 4 February 1981 the district court granted the ORS's motion to dismiss the complaint, concluding that appellants had failed to state a legally cognizable claim for relief. The district court's judgment was affirmed by a panel of this court in an unpublished decision filed 1 February 1982. On 2 August 1982 appellants' suggestion for rehearing en banc was granted and the panel's February 1982 decision was vacated.

We agree with the district court that Congress has not authorized a private action against the ORS of the type appellants would maintain. Instead, Congress has authorized private suits to check specific discriminatory acts of recipients of revenue sharing funds. We further conclude that the private actions Congress has authorized afford an adequate remedy within the meaning of the APA to persons aggrieved by violations of the Revenue Sharing Act's nondiscrimination requirements. We therefore affirm the district court's decision.


Appellants first contend that the Revenue Sharing Act creates a federal cause of action against the ORS for failing to investigate complaints against revenue sharing fund recipients and to monitor adequately compliance with the Act's civil rights safeguards. Appellants are unable to point to any provision of the Act which expressly creates such a cause of action. Thus, we can accept this argument only if we conclude that the private right of action appellants describe should be implied from the statute. An examination of the relevant factors, however, convinces us that such an action should not be implied.

In determining whether a private right of action should be implied from a federal statute, "the ultimate issue is whether Congress intended to create a private right of action." 22 The four factors outlined by the Supreme Court in Cort v. Ash 23 provide the "criteria through which this intent [can] be discerned." 24 These factors are:

First, is the plaintiff "one of the class for whose especial benefit the statute was

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enacted," ...--that is, does the 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 purposes of the legislative scheme to imply such a remedy for the plaintiff? ... 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? 25

Even assuming that the first and fourth Cort factors can be resolved in appellants' favor, consideration of the explicit and implicit legislative intent, coupled with an analysis of the underlying purposes of the legislative enforcement scheme, requires us to reject appellants' argument.

  1. Nature of the Enforcement Scheme

    From its inception, the revenue sharing program was premised on the "no strings" philosophy, in contrast to the categorical grant programs then in existence. 26 Thus, the ORS was to have a relatively small staff to administer the provisions of section 122, and extensive reliance was placed on the investigative and auditing powers of other state and federal agencies. 27 This enforcement scheme did not prove adequate, however, 28 and in 1976 when the revenue sharing program was extended, changes were made in the enforcement mechanism. 29 A review of the resulting enforcement scheme shows that while Congress was aware that the ORS might not adequately handle discrimination complaints, it deliberately structured the manner in which revenue sharing nondiscrimination...

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