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DECISIONS 9th sees no regulatory relief in § 1983 By Gary Young staff reporter The cases discussed in this column are selected with the assistance of Washington, D.C., practitioner Thomas Goldstein. A july 10 decision by the 9th U.S. Circuit Court of Appeals reignited a long-simmering debate among the circuits about whether individuals can sue under 42 U.S.C. 1983 to enforce federal regulations. When the Central Puget Sound Regional Transit Authority proposed a 21-mile rail line to Seattle’s airport, its plans called for the tracks to be elevated or underground as they passed through several Seattle neighborhoods. An exception was Rainier Valley, a predominantly minority neighborhood where 4.6 miles of track were to run at street level. A neighborhood organization, Save Our Valley, claimed that the plan violated a U.S. Department of Transportation regulation, 49 C.F.R. 21.5(b)(2), that forbids any entity that receives funding from the federal government (as the authority does) to pursue projects that put a disproportionate burden on racial minorities, even if there is no proof that the entity intended to discriminate. Save Our Valley further claimed that it had the right to sue the authority to enforce this “disparate impact” regulation on the strength of § 1983. Section 1983, enacted in 1871 as part of the Ku Klux Klan Act, says that state agents who deprive citizens of “any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” In Save Our Valley v. Sound Transit, No. 01-36172, a 9th Circuit panel ruled unanimously that § 1983 was not available to Save Our Valley, though the panel split two-to-one on why that was so. In his opinion for the two-member majority, Judge Ronald M. Gould wrote, “an agency regulation cannot create individual rights enforceable through § 1983.” He noted that three other circuits-the 3d, 4th and 11th-had reached the same conclusion, based primarily on language in U.S. Supreme Court decisions suggesting that only Congress could create such rights. Gould also acknowledged, however, that the D.C. Circuit, in 1985, and the 6th Circuit, in 1994, ruled that regulations authorized by Congress but written and implemented by administrative agencies were in many cases “laws” subject to enforcement through § 1983. Gould went on to suggest that the position of those two circuits was no longer tenable in light of two subsequent Supreme Court opinions, Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). The two cases established that questions about what rights are enforceable through § 1983 are best answered by turning to the Supreme Court’s decisions discussing whether particular statutes authorizing regulations also implicitly create private rights of action to enforce those regulations, according to Gould. The cases also established, he said, that private rights of action-and by implication, rights enforceable under § 1983-can only be created when specifically intended by Congress. Thus, a “disparate impact” regulation that may have been safely within the Department of Transportation’s congressionally circumscribed authority but that was not specifically intended by Congress would not pass muster. Down but not out Judge Marsha S. Berzon’s partial dissent gives reason to think that Gould’s analysis may not go unanswered by the dissenting circuits. She agreed that Save Our Valley did not have a remedy under § 1983, but primarily because the transportation department regulation has an “aggregate focus,” with no direct reference to the people ultimately to benefit from it. But Berzon also argued that a blanket prohibition against § 1983 enforcement of regulations was unwarranted. She claimed that Gould improperly imported Supreme Court cases dealing with the creation of rights (such as a private right of action) into an inquiry about remedies. The real question, she suggested, is whether § 1983 offers a remedy for an already existing regulatory right. Young’s e-mail address is gyoungnlj.com.

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