Noe v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 04 May 1981
• Docket Number: No. 80-7263,80-7263
• Citation: 644 F.2d 434
• Parties: , 11 Envtl. L. Rep. 20,515 M. NOE, Plaintiff-Appellant, v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, John Doe, Secretary of Transportation, et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 434

644 F.2d 434

15 ERC 2098, 11 Envtl. L. Rep. 20,515

M. NOE, Plaintiff-Appellant, v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, John Doe Secretary of Transportation, et al., Defendants-Appellees.

No. 80-7263.

United States Court of Appeals, Fifth Circuit.

Unit B

May 4, 1981.

Haas, Holland, Lipshutz, Levison & Gibert, Richard N. Hubert, Atlanta, Ga., for plaintiff-appellant.

Jerry Jackson, Robert L. Klarquist, Donald Mileur, Dept. of Justice, Washington, D. C., Curtis E. Anderson, Asst. U. S. Atty., Atlanta, Ga., for Secretary of Transp., et al.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, Ga., for Moseman Const. Co.

Robert A. Boas and Charles N. Pursley, Jr., Atlanta, Ga., for Parsons Brinckerhoff Tudor JV and MARTA.

Judson Graves, Atlanta, Ga., for Horn Fruin/Colnon, JV.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and VANCE, Circuit Judges and ALLGOOD ^*, District Judge.

FAY, Circuit Judge:

Plaintiff-appellant seeks this Court's reversal of the District Court's dismissal of her complaint for lack of jurisdiction. Because we agree with the District Court that the National Environmental Policy Act (NEPA) does not give rise to a private cause of action for failing to adhere to the Environmental Impact Statement required by NEPA, we affirm the judgment of the District Court.

Appellant lives and maintains a bookstore in an apartment building in Atlanta, Georgia near a construction site for the city's rapid transit system (MARTA). As a result of the physical presence of the construction site and the noise levels generated therefrom, appellant asserted that her business enterprise suffered economic injury. Appellant brought suit in federal District Court seeking injunctive and declaratory relief as well as money damages. As the basis for federal jurisdiction, appellant asserted that the failure of MARTA and its builders to stay within the noise levels predicted by the environmental impact statement constituted a violation of that section of NEPA that requires the filing of such statements prior to beginning construction, 42 U.S.C. § 4332. Moreover, appellant asserted that violation of that statute gave rise to an implied private right of action on her part against all those involved in the violation. The District Court, holding that 42 U.S.C. § 4332 requires only the filing of an environmental impact statement, not compliance therewith, dismissed the suit for lack of jurisdiction. ¹ We affirm the judgment of the District Court on the grounds that violation of 42 U.S.C. § 4332, assuming for these limited purposes that one has occurred, does not create an implied private right of action on behalf of injured citizens.

Though the question of an implied private right of action under NEPA has never been considered by this Court before, it has been considered by two other Circuit Courts of Appeals, Mountain Brook Homeowner's Association, Inc. v. Adams, 620 F.2d 294 (4th Cir. 1980) (unpublished opinion); City of Blue Ash v. McLucas, 596 F.2d 709 (6th Cir. 1979). The question of implied rights of action in general has received extensive treatment in decisions of the Supreme Court and this Court, Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980), as well as in scholarly commentaries, Note, Federal Courts Implied Rights of Action; Transamerica Advisers, Inc. v. Lewis, 21 Boston College L.Rev. 1143 (1980). Accordingly, we have no fear that this case will require us to take a perilous cruise through unchartered waters.

The history of the Supreme Court's analysis of implied private action cases is interesting and worth summation. In Cort, the Supreme Court established a four-pronged test to be applied in analyzing the propriety of allowing a case to be maintained as an implied private right of action under a federal statute not specifically creating such a right. Those factors were:

(1) Is the plaintiff a member of the class for whose special benefit the statute was created?

(2) Is there any indication of legislative intent either to create or deny the remedy sought?

(3) Is it consistent with the underlying statutory purposes to imply a remedy such as that sought?

(4) Is the cause of action one that is traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law?

The Court did not offer any guidance as to the relative significance of each factor or the need to establish the presence or absence of all of them. The decision was, however, far more restrictive than earlier ones in considering the circumstances in which inferring a private right of action would be appropriate. Compare, J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).

Three years later the Supreme Court handed down its decisions in Cannon v. University of Chicago, supra, and Touche Ross & Co. v. Redington, supra. In Cannon the Court allowed the plaintiff to maintain an action on an implied private right theory for an alleged civil rights violation under § 901(a) of Title IX of the Education Amendment Acts of 1972. The Court found that all four of the factors set forth in Cort were satisfied and, accordingly, did not attempt to weigh their relative importance. Shortly after Cannon the Supreme Court handed down Touche Ross, supra, in which it severely restricted the type of analysis courts should employ when faced with the implied private action issue. Touche Ross, like Cort, involved a plaintiff seeking to bring an implied private action under the securities laws, specifically section 17(a) of the Securities Exchange Act of 1934. In Touche Ross the Court enunciated its new approach, that the task of federal courts in cases such as this was limited solely to determining whether Congress intended to create the private right of action being asserted in a given case. Consistent with that shift in analytic framework the Court considered the first two criteria set out in Cort and, finding them not to be satisfied, declined to consider factors three and four. This is most significant, because factors three and four, going to the questions of the consistency of the implied action to the policy underlying the statute and the relegation of such cases to state law, are considerably easier for a plaintiff to establish than the factors requiring proof of affirmative legislative intent to provide the relief sought.

The Court's treatment of this issue the following term, in Transamerica Mortgage Advisers, Inc. v. Lewis, supra, continued the trend of further restricting those situations in which private causes of action would be implied. In Lewis, the plaintiff sought to have the Court find an implied cause of action in section 206 of the Investment Advisers Act. The Court refused to do so but, unlike the two-step analysis of Touche Ross, the Court based its decision solely on the fact that the second factor in Cort, that there be an indication of legislative intent to create a private right of action, was not satisfied. The fact that the plaintiff in Lewis was within the class especially intended to be benefited by the statute, the first Cort factor, was immaterial to the Court's conclusion. Given this approach, it seems reasonable to conclude that the Supreme Court's earlier statement in Cannon and Cort that when "it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action," 441 U.S. at 694, 99 S.Ct. at 1956, is no longer the law.

In apparent failure to recognize the impact of the Supreme Court's decisions in Lewis and Touche Ross, the appellant would have this Court apply the four-pronged Cort test in the less restrictive manner of the Court's earlier decision in Cannon. Though we are of the opinion that we are no longer required to make such multi-stepped analysis, it makes no difference here since the results reached by either approach are identical. This is true because we conclude that appellant has not proven any of the four Cort criteria.

The first criteria set out in Cort is that the plaintiff must be a member of the class for whose especial benefit the statute was enacted. Appellant reasons that since she was injured by construction covered in the environmental impact statement, which in turn is required by NEPA, she must be a member of the special class for whose protection the statute was enacted. There are two critical flaws with the logic of that analysis. First, the appellant confuses one who incidentally has been injured by an alleged violation of a federal statute, with one whose injury the statute was specifically designed to prevent. As Justice Stevens noted in Cannon, "... the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." 441 U.S. at 688, 99 S.Ct. at 1953. The first requirement of Cort was well analyzed in Stern v. Merrill Lynch, Pierce, Fenner & Smith, 603 F.2d 1073 (4th Cir. 1979), in which Judge Russell wrote:

"The first requirement for establishing an implied right of action on account of a violation of a federal statute, as thus enunciated in Cort what is characterized as the 'threshold test' for such an action, and a test which 'has been central to all implication cases, from the first statutory implication decision in which it (the doctrine) was originally formulated' is that the plaintiff be a member of a class 'for whose especial benefit the statute was enacted.' '(S)atisfaction of...