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SOUTH CAMDEN CIT. IN ACTION v. NEW JERSEY DEPT.

May 10, 2001

SOUTH CAMDEN CITIZENS IN ACTION, GENEVA SANDERS, PAULINE WOODS, BARBARA PFEIFFER, JULITA GILLIARD, OSCAR LISBOA, SHIRLEY RIOS, PHYLLIS HOLMES, GWEN PETERSON, LATOYA COOPER, AND JULIO LUGO, PLAINTIFFS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ROBERT C. SHINN, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, IN HIS OFFICIAL CAPACITY, DEFENDANTS, AND ST. LAWRENCE CEMENT CO., L.L.C., DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Orlofsky, District Judge.

  TABLE OF CONTENTS

Introduction

Procedural History

Discussion

Introduction

The Supreme Court's Decision In Sandoval Whether Plaintiffs May Assert A Claim for Disparate Impact Discrimination, in Violation of the EPA's Implementing Regulations Promulgated Pursuant to § 602, under 42 U.S.C. § 1983

Sandoval Does not Preclude Such a Claim

The Governing Legal Standard for Determining Whether a "Right" Can be Enforced Under § 1983. .29 The Differences Between the Cort v. Ash Implied Right of Action Test and the Blessing v. Freestone § 1983 Test
D. Application of § 1983 Analysis to this Case
1. The Plaintiffs' Claim: The EPA's Implementing Regulations Promulgated Under § 602 Create a Federal Right to Be Free of Adverse Disparate Impact Discrimination By Recipients of Federal Funds Pursuant to Title VI
2. Elements of the § 1983 Claim
3. A History of the Implementing Regulations Promulgated by Federal Agencies Pursuant to § 602 of Title VI
4. The Blessing Test: Whether the EPA's § 602 Implementing Regulations Confer a Federal "Right" on Plaintiffs which is Enforceable Under § 1983
Whether the Regulations Promulgated Under § 602 Were Intended to Benefit Plaintiffs
Whether "the Right Assertedly Protected by the Provision is so `Vague and Amorphous' That its Enforcement would Strain Judicial Competence"
Whether the Provision "Unambiguously Imposes A Binding Obligation on The States"
Whether Congress Has Expressly or Impliedly Foreclosed Plaintiffs' Ability to Enforce the EPA's Disparate Impact Regulations, Promulgated Pursuant to Title VI, Under § 1983
IV. The Availability of Injunctive and Declaratory Relief in this Case.

Conclusion

OPINION

INTRODUCTION

On April 19, 2001, this Court granted Plaintiffs' request for a preliminary injunction and a declaratory judgment based upon the allegation that the New Jersey Department of Environmental Protection ("NJDEP") and NJDEP Commissioner Robert Shinn ("Shinn") had violated § 602 of Title VI of the Civil Rights Act of 1964, 40 U.S.C. § 2000d-1, and the EPA's implementing regulations thereto, codified at 40 C.F.R. § 7.10 et seq., by failing to consider the potential adverse, disparate impact of their decision to grant St. Lawrence Cement Co.'s ("SLC") application for air permits to operate its proposed facility. See South Camden Citizens in Action ("SCCIA"), et. al. v. New Jersey Department of Environmental Protection, et. al., ("SCCIA I"), ___ F. Supp.2d ___, No. 01-702, 2001 WL 392472 (D.N.J. April 19, 2001) (Orlofsky, J.). That determination was based upon the assumption that an implied private right of action existed under § 602 of Title VI, a cause of action which had recently been recognized in this Circuit in Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999), cert. denied, 528 U.S. 1046 (1999). SCCIA I, 2001 WL 392472 at *24. I noted in SCCIA I that the precise question of whether an implied private right of action was available to enforce disparate impact regulations promulgated under Title VI was pending before the Supreme Court. Id.; see Sandoval v. Hagen, 197 F.3d 484 (11th Cir. 1999), cert. granted, 121 S.Ct. 28 (2000). I concluded, however, in SCCIA I, that I was bound by the Third Circuit's decision in Powell to recognize such a claim. Id.

On the morning of April 24, 2001, five days after this Court filed its Opinion and Order in SCCIA I, the Supreme Court held that § 602 does not provide an implied private right of action to enforce disparate impact regulations promulgated by federal agencies pursuant to § 602. See Alexander v. Sandoval, ___ U.S. ___, 2001 WL 408983 (April 24, 2001).

On the afternoon of April 24, 2001, this Court convened a telephone conference call on the record with all counsel to address the impact of the Supreme Court's decision in Sandoval on this case. See Transcript of Conference Call I ("Trans. Conf. Call I"), April 24, 2001. In light of the Supreme Court's decision in Sandoval, the parties were asked to brief the following two questions: (1) Whether Plaintiffs are entitled to preliminary injunctive relief on the ground that the NJDEP and Commissioner Shinn intentionally discriminated against them on the basis of race, color, or national origin, in violation of § 601 of Title VI of the Civil Rights Act of 1946, 42 U.S.C. § 2000d; and (2) Whether Plaintiffs are entitled to preliminary injunctive relief based upon 42 U.S.C. § 1983,*fn1 specifically, whether the disparate impact regulations promulgated to enforce Title VI can be enforced through a § 1983 action.

The Supreme Court's decision in Sandoval clearly held that private individuals can no longer sue directly under § 602 to enforce the disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. The question presented to this Court for the first time, and perhaps for the first time to any federal court, is whether the same disparate impact regulations which can no longer be enforced through a private right of action brought directly under § 602 of Title VI, can be enforced pursuant to 42 U.S.C. § 1983.

For the reasons set forth below, I conclude that: (1) the Supreme Court's decision in Sandoval does not preclude Plaintiffs from pursuing their claim for disparate impact discrimination, in violation of the EPA's implementing regulations to Title VI, under 42 U.S.C. § 1983; and (2) Plaintiffs are entitled to preliminary injunctive relief based upon a claim for disparate impact discrimination in violation of the EPA's implementing regulations to Title VI, brought under 42 U.S.C. § 1983.*fn2 Accordingly, SLC's motion to vacate this Court's Opinion and Order of April 19, 2001 (SCCIA I), granting Plaintiffs' application for a preliminary injunction, or in the alternative, seeking a stay of that Order pending appeal, is denied. Therefore, this Court's Order of April 19, 2001 shall remain in full force and effect.*fn3

I incorporate the findings of facts and conclusions of law set forth in SCCIA I except as noted below. My application of the Third Circuit's test for preliminary injunctive relief is unchanged by this Supplemental Opinion, except insofar as I assumed, in SCCIA I, that Plaintiffs were entitled to bring a private cause of action under § 602 itself, and have now concluded that Plaintiffs are entitled to assert the same claim under 42 U.S.C. § 1983. In considering Plaintiffs' application for preliminary injunctive relief, I specifically note that the following findings of fact and conclusions of law set forth in SCCIA I are incorporated into, and unaltered by, this Supplemental Opinion: (1) Plaintiffs are likely to succeed on the merits of their claim that the NJDEP's facially neutral policy resulted in adverse disparate impact discrimination against Plaintiffs in violation of the EPA's Title VI implementing regulations; (2) Plaintiffs will suffer irreparable harm to their health and environment in the absence of an injunction; (3) Neither NJDEP, nor SLC will be irreparably harmed through the grant of preliminary injunctive relief; and (4) the granting of Plaintiffs' request for preliminary injunctive relief is in the public interest.
II. PROCEDURAL HISTORY

On April 19, 2001, this Court filed an Opinion and Order granting Plaintiffs' request for a declaratory judgment and preliminary injunctive relief. The facts and circumstances giving rise to this action are set forth in that Opinion, and will not be repeated here. See SCCIA I, 2001 WL 392472. In that Opinion, this Court applied the requisite four-factor test for determining whether to grant preliminary injunctive relief. See SCCIA I, 2001 WL 392472 at *21, ¶ 118.*fn4 Specifically, this Court found that Plaintiffs were likely to succeed on the merits of their claim that the NJDEP's permitting criteria and methods resulted in disparate impact discrimination in violation of § 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1. SCCIA I, 2001 WL 392472 at *21-48, ¶¶ 118-226. Furthermore, this Court found that Plaintiffs had demonstrated that they would suffer irreparable harm in the absence of injunctive relief, that neither NJDEP nor SLC will be irreparably injured by the grant of injunctive relief, and that the public interest favored granting the injunctive relief requested. Id.

Within hours of the Supreme Court's issuance of the Sandoval decision, this Court convened a telephone conference call with all counsel in this case to discuss the impact of Sandoval on this Court's holding in SCCIA I. See Trans. Conf. Call I. All counsel agreed with this Court that the Supreme Court's decision in Sandoval overruled the Third Circuit's decision in Powell, upon which this Court had relied in reaching its decision in SCCIA I, specifically, that § 602 contains an implied private right of action. Trans. Conf. Call I at 11.

Counsel for SCCIA argued, however, that the preliminary injunction issued by this Court on April 19, 2001, should remain in effect because Plaintiffs were entitled to preliminary injunctive relief, notwithstanding the Supreme Court's decision in Sandoval. First, Plaintiffs argued that their claim for intentional discrimination, brought under § 601, provided a basis for this Court's continuance of the preliminary injunction. Second, citing Justice Stevens' dissenting opinion in Sandoval, Plaintiffs contended that their claim of disparate impact discrimination, originally brought under § 602, could be brought under 42 U.S.C. § 1983. Trans. Conf. Call I at 3.

Counsel for SLC argued that the preliminary injunction issued by this Court in SCCIA I should be vacated by this Court sua sponte in light of the Supreme Court's decision in Sandoval, pursuant to Federal Rule of Civil Procedure 60(b). Trans. Conf. Call I at 5. Counsel for NJDEP concurred. Id. at 6-7. In the alternative, counsel for SLC requested that this Court stay its injunction, pending the disposition of a motion for reconsideration. Id. at 9.

After hearing arguments from counsel for SCCIA, NJDEP, and SLC, this Court instructed the parties to file supplemental briefs analyzing the impact of the Supreme Court's decision in Sandoval on Plaintiffs' Complaint. Trans. Conf. Call I at 10-12, 16. The Court gave the parties until 9:00 a.m., Thursday, April 26, 2001, or approximately thirty-six hours from the time of the conference call, to submit their supplemental briefs. Id. at 24-25. Finally, the Court indicated that, since the Court and all parties were aware of the Court's obligation to reconsider its decision in SCCIA I in light of the Supreme Court's decision in Sandoval, the Court would not require SLC to go through the formality of filing a motion for reconsideration. Id. at 23.

On April 25, 2001, SLC filed an Order to Show Cause for Preliminary Injunction Pending Appeal and a Motion to Vacate Opinion and Order or, in the alternative, for Stay of Order Pending Appeal. See Order to Show Cause, No. 01-702 (filed April 25, 2001). In the brief it submitted in support of the Order to Show Cause for Preliminary Injunction Pending Appeal and the Motion to Vacate or, Stay, SLC argued that the Supreme Court's decision in Sandoval mandated that this Court immediately vacate its Opinion and Order in SCCIA I.

On April 25, 2001, Plaintiffs filed a motion for leave to amend their complaint to allege a cause of action for disparate impact discrimination, in violation of the EPA's Title VI implementing regulations, codified at 40 C.F.R. § 7.10 et seq, based on 42 U.S.C. § 1983. See Pls.' Motion for Leave to Amend Complaint, No. 01-702 (filed April 25, 2001).

On the afternoon of April 25, 2001, this Court convened a second telephone conference call on the record to address these motions. See Transcript of Conference Call II ("Trans. Conf. Call II"), April 25, 2001. With respect to Plaintiffs' motion for leave to amend their Complaint, the Court considered Plaintiffs' argument that leave should be granted in the interest of justice, and SLC's argument in opposition that leave to amend should be denied based on the prejudice SLC would suffer if the motion were granted. Trans. Conf. Call II at 2-3, 6-16. After considering the arguments of counsel, the Court concluded that Plaintiffs' motion to amend would not cause any legal prejudice to Defendants. Specifically, the Court noted that the Plaintiffs' proposed amendment was a technical amendment asserting an alternative legal basis for the relief sought in Plaintiffs' original Complaint, and would not require the presentation of any additional evidence. Id. at 13-22. The Court further concluded that the prejudice identified by counsel for SLC, namely, the economic harm SLC would suffer from the continuance of the injunction, is not the kind of prejudice which would defeat a motion for leave to amend under Federal Rule of Civil Procedure 15(a), which mandates that leave to amend "be freely given when justice so requires." Id. 13-14 (citing Foman v. Davis, 371 U.S. 178 (1962) and Fed.R.Civ.P. 15(a)). Accordingly, this Court granted Plaintiffs' motion for leave to amend their Complaint to assert a cause of action under 42 U.S.C. § 1983, alleging the discriminatory impact of NJDEP's permitting practices under the EPA's implementing regulations to Title VI of the Civil Rights Act of 1964.

With respect to SLC's Order to Show Cause and Motion to Vacate or Stay, the Court explained that it was fully aware of its obligation to reconsider its decision in SCCIA I in light of the Supreme Court's decision in Sandoval, and was proceeding to do so as expeditiously as possible. Trans. Conf. Call II at 26. As this Court explained:

I am resolving [the question of whether to dissolve or stay the preliminary injunction] as part of this process. I hope to render a decision as quickly as possible. I can't tell [counsel] how quickly I'm going to do it until I read your papers, but since [counsel] raised it, I think I ought to address it. There are serious public health issues presented in this case and to vacate . . . without giving plaintiffs an opportunity — or vacate the injunction or stay the injunction and allow the plant to begin operations without giving the plaintiffs an opportunity to demonstrate to me that they're entitled to preliminary injunctive relief based on the existing record, it seems to me, raises serious issues with regard to the public health of the citizens of Waterfront South.
I am not going to set a return date for the order to show cause. I am considering the issues raised in the order to show cause as we speak. I was considering them before [counsel for SLC] filed the papers, and to me this was an unnecessary exercise. I understand that [SLC] insisted that [counsel for SLC] file the papers, but of course I'm considering those issues. I didn't ask [counsel for SLC] to file a motion for reconsideration, and I didn't ask [counsel for SCCIA] to file a formal motion to have a return date on the motion to amend. I'm trying to move this as quickly as possible. But, certainly, I'm considering the issues which [counsel for SLC] raised in the order to show cause. I don't think it's necessary to set a return date.
Now, what I will do . . . is that after I receive the papers tomorrow and I've had a chance to read them and you've all had the chance to read your adversary's papers, if you want argument, if you want to come down and argue, I'll be happy to schedule oral argument. But I read your papers already on the order to show cause . . . and I'm already considering those issues.

Id. at 26-28.

III. DISCUSSION

A. Introduction

This Supplemental Opinion sets forth the Court's conclusions of law regarding the impact of the Supreme Court's decision in Sandoval on this Court's opinion in SCCIA I. I incorporate by reference the findings of fact and conclusions of law set forth in SCCIA I, with the exception of those conclusions of law relating to the existence of a private right of action under § 602 of Title VI, which have been overruled by Sandoval.

B. The Supreme Court's Decision in Sandoval
In order to determine the impact of the Supreme Court's decision in Sandoval on this case, I must first consider the precise holding in Sandoval. As Justice Scalia pointedly reminded us in the majority Opinion he authored in Sandoval, courts are "bound by holdings, not language." Sandoval, ___ U.S. ___, 2001 WL at 408883 at * 5. With Justice Scalia's admonition in mind, I shall now examine the Supreme Court's holding in Sandoval in detail, in an effort to determine its impact on this case.

Section 601 of Title VI provides that no person shall, "on the ground of race, color, or national origin, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S.C. § 2000d. Section 602 of Title VI authorizes federal agencies to "effectuate the provisions of [§ 601] . . . by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1.

Both the Department of Justice and the Department of Transportation have promulgated implementing regulations to Title VI of the Civil Rights Act of 1964, pursuant to § 602. See 28 C.F.R. § 42.104(b)(2) (DOJ regulations) and 49 C.F.R. § 21.5(b)(2) (DOT regulations). These regulations prohibit recipients of federal funds from, inter alia, "utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." 28 C.F.R. § 42,104(b)(2). Because the Alabama Department of Public Safety accepts grants of financial assistance from the United States Department of Transportation and the United States Department of Justice, it is subject to Title VI. Sandoval, ___ U.S. ___, 2001 WL at 408883 at * 3.

In Sandoval, the plaintiff class asserted its claim for disparate impact discrimination exclusively as a private right of action under § 602 of Title VI. See Sandoval v. Hagen, 7 F. Supp.2d 1234, 1253 n. 15 (M.D.Ala. 1998) ("[T]he plaintiffs in the case at bar are not asserting Title VI rights via § 1983. Rather, Plaintiffs contend that they have a direct cause of action under Title VI and its implementing regulations.") Their claim was premised on the theory that § 602: (1) permits the promulgation, by federal agencies, of implementing regulations which prohibit disparate impact discrimination; and (2) affords an implied private right of action to private individuals to file suit in federal court to enforce such implementing regulations.

As Justice Scalia plainly stated in his majority Opinion in Sandoval, the Supreme Court's decision in Sandoval addressed only the second of the plaintiffs' theories concerning § 602: "[t]he petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the [implementing] regulation." Sandoval, ___ U.S. ___, 2001 WL 408983 at * 3. The Supreme Court "[did] not inquire [in Sandoval] whether the DOJ regulation was authorized by § 602, or whether the courts below were correct to hold that the [contested policy] had the effect of discriminating on the basis of national origin." Id. Instead, the Court stated that:
[W]e must assume for purposes of deciding this case that regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even through such activities are permissible under § 601. Though no opinion of this Court has held that, five justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, see 463 U.S. at 591-92 (opinion of White, J.); id. at 623, n. 15 (Marshall, J., dissenting); id. at 643-654 (Stevens, J. joined by Brennan and Blackmun, JJ., dissenting), and dictum in Alexander v. Choate is to the same effect, see 469 U.S. 293, 295, n. 11. These statements are in considerable tension with the rule of Bakke and Guardians that § 601 forbids only intentional discrimination, see, e.g. Guardians Assn. v. Civil Serv. Comm'n of New York City, supra, at 612-613 (O'Connor, J., concurring in judgment), but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid.

Sandoval, ___ U.S. ___, 2001 WL 408983 at * 4 (emphasis added).

Having thus defined the scope of its review, the majority in Sandoval proceeded to analyze two sources of law in order to determine whether Congress intended to create a private right of action under § 602: (1) Supreme Court precedent interpreting Title VI; and (2) the text and structure of Title VI itself.

First, the Court reviewed its holdings in the seminal cases of Lau v. Nichols, 414 U.S. 563 (1974) (holding that § 601 prohibits disparate impact discrimination); Cannon v. University of Chicago, 441 U.S. 677, 694 (1979) (holding that a private right of action exists to enforce Title IX, which is "patterned after Title VI,"); Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (holding that § 601 proscribes only intentional discrimination); Guardians Ass'n v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983) (affirming Bakke's holding that § 601 prohibits only intentional discrimination); and Alexander v. Choate, 469 U.S. 287 (1985) (same). See Sandoval, ___ U.S. ___, 2001 WL 408983 at * 5-8. Based on its analysis of the holdings in these cases, the Supreme Court concluded that "[n]either [Guardians], nor any other [case] in this Court, has held that the private right of action exists." Id. at * 5.

The Court then considered the text and structure of Title VI. First, the Court reviewed § 602's language that federal agencies may "effectuate" § 601, and held that "[s]o far as we can tell, this authorizing portion of § 602 reveals no congressional intent to create a private right of action." Id. at * 8. Second, the Court considered the methods that § 602 provides for enforcement, namely, either the termination of "funding to the `particular program, or part thereof,' that has violated the regulation or [enforcement] `by any other means authorized by law,'" and concluded that these methods do not "manifest an intent to create a private remedy." Sandoval, ___ U.S. ___, 2001 WL 408983 at * 9 (citing 42 U.S.C. § 2000d-1). After reviewing various restrictions on agency enforcement of § 602, the Court concluded that these restrictions "tend to contradict a congressional intent to create privately enforceable rights through § 602 itself." Id. at * 9. Third, the Court considered and rejected plaintiffs' argument that the regulations must be privately enforceable because they contain rights-creating language, stating 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." Id. Finally, the Court considered plaintiffs' argument that Congress "ratified" a jurisprudentially-created private cause of action under § 602 in amendments to Title VI which Congress passed in 1986 and 1987. See Rehabilitation Act Amendments of 1986, § 1003, 42 U.S.C. § 2000d-7; Civil Rights Restoration Act of 1987, § 6, 42 U.S.C. § 2000d-4a. The Court rejected this argument, based on: (1) its conclusion that its jurisprudence never created such a right; and (2) its conclusion that congressional intent to "ratify" a private cause of action could not be inferred from the fact that Congress was silent on this issue when it enacted the comprehensive revisions to Title VI which were contained in the 1986 and 1987 amendments. Id. at * 10.
Based on the foregoing analysis, Justice Scalia, writing for the majority, concluded with the following unequivocal statement of the Court's holding in Sandoval: "Neither 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 § 602. We therefore hold that no such right of action exists." Id.
C. Whether Plaintiffs May Assert a Claim for Disparate Impact Discrimination, in Violation of the EPA's Implementing Regulations Promulgated Pursuant to § 602, under 42 U.S.C. § 1983
1. Sandoval Does Not Foreclose the Possibility of Such a Claim

This Court undertook the preceding analysis of the Supreme Court's Opinion in Sandoval to divine exactly what the Court held in Sandoval, in an effort to determine the impact of Sandoval upon this case. The foregoing analysis, however, is equally valuable insofar as it illuminates what the Supreme Court did not hold in Sandoval.

Specifically, upon a careful review of Justice Scalia's majority opinion in Sandoval, it is clear that the impact of the Supreme Court's holding in Sandoval on this case is limited to its holding that § 602 of Title VI does not create an implied private cause of action to enforce agency regulations promulgated under § 602 which prohibit disparate impact discrimination. I reach this conclusion for four reasons. First, as Justice Scalia repeatedly emphasized, the petition for certiorari presented, and the Supreme Court reviewed, only the question of whether § 602 itself creates what Justice Scalia termed a "freestanding," or independent, private right of action. See Sandoval, ___ U.S. ___, 2001 WL 408983 at * 3, * 4, * 6 and * 10. Second, Justice Scalia took pains to point out that because the validity of the Title VI implementing regulations promulgated by the DOJ and DOT were not contested in Sandoval, the Court's holding in Sandoval does not address or invalidate the disparate impact regulations promulgated under § 602 of Title VI, or the many cases in which the Supreme Court has assumed such a right exists. Id. at * 4. As he noted repeatedly:
We do not inquire here whether the DOJ regulation was authorized by § 602. Id. at * 3;

We must assume for purposes of deciding this case that regulations promulgated under § 602 may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601. Id. at * 4;

As stated earlier, we assume for the purposes of this decision that § 602 confers the authority to promulgate disparate-impact regulation; the question remains, whether it confers a private right to enforce them. Id. at *6. Third, the Court limited the question decided in Sandoval to determining whether Congress intended to create a private remedy to enforce § 602, while assuming that in fact Congress intended that statute, to create a substantive right: "The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent not just to create a private right, but also a private remedy." Id. at * 7 (citation omitted). Finally, a careful review of the Supreme Court's jurisprudence on the issue of implied remedy, beginning with the Court's holding twenty years ago in Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Assoc., 452 U.S. 1 (1981), cited by the Supreme Court in Sandoval, ___ U.S. ___, 2001 WL 408983 at *9, reveals the Court's recognition of the critical distinction in the judicial analysis required to divine Congressional intent to create such a private right of action, and the very different question of Congressional intent to create such a remedy via, for example, § 1983.

For example, in Nat'l Sea Clammers Assoc., 452 U.S. at 13-20, the Court considered both the question of whether the statute at issue in that case afforded an implied private right of action, and, alternatively, whether the same statute could provide the basis for a § 1983 action:

Where, as here, Congress has made it clear that implied private actions are not contemplated, the courts are not authorized to ignore this legislative judgment. Although the parties have not suggested it, there remains a possible alternative source of express congressional authorization of private suits under these Acts . . . it could be argued that respondents may sue the municipalities and sewerage boards among the petitioners under [the Acts] by virtue of a right of action created by § 1983 . . . . [I]f controlling, this argument would obviate the need to Consider whether Congress intended to authorize private suits to enforce these particularly federal statutes.

Id. at 18-19.

Significantly, for the purposes of this case, it is clear for the reasons I have just explained that the Sandoval opinion does not, as NJDEP and SLC argue, prevent Plaintiffs in this case from pursuing any cause of action involving § 602. See NJDEP Suppl. Br. at 6; SLC Suppl. Br. at 22. More specifically, Sandoval does not foreclose Plaintiffs from seeking to vindicate the rights they allege § 602 and its implementing regulations create through § 1983. In arguing to the contrary, both NJDEP and SLC urge this Court to interpret Sandoval in a way which goes well beyond the narrow holding in that case. The essence of the NJDEP's and SLC's misunderstanding of Sandoval lies in their conflation of rights with remedies in their analysis of the Supreme Court's holding in Sandoval.

Specifically, the NJDEP and SLC argue that in Sandoval, the Court held that individual plaintiffs are entirely foreclosed from bringing any cause of action based upon alleged violations of the disparate impact implementing regulations promulgated under § 602. To support this argument, the NJDEP cites to the following language: "Neither 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 § 602. We therefore hold that no such right of action exists." NJDEP Suppl. Br. at 6 (citing Sandoval, ___ U.S. ___, 2001 WL 408983 at * 10). As is evident from the very text the NJDEP cites, however, and for the reasons I have already discussed in detail, Sandoval's holding is limited to the question of whether, in Justice Scalia's words, a "freestanding private right of action" exists under § 602.

SLC directs this Court's attention to a different section of Justice Scalia's majority Opinion, an analysis of which, it argues, mandates the same conclusion, namely, that Sandoval precludes Plaintiffs in this ...


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