Adams v. Cavazos Petition for Rehearing for Plaintiffs-Appellees Kenneth Adams and Plaintiff-Intervenor-Appellees Jimmy Martinez

    UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

KENNETH ADAMS, et aJL. , ) Nos. 88-5068,
) 88-5088, and

Plaintiffs-Appellees, ) 83-1590
)

v.  )
)

LAURO F. CAVAZOS, Secretary of Education, ) 
et al., )

)
Defendants-Appellants. )

______________________________________________________)

PETITION FOR REHEARING FOR PLAINTIFFS-APPELLEES KENNETH ADAMS, et 
al. AND PLAINTIFF-INTERVENOR-APPELLEES JIMMY MARTINEZ, et al.

Appellees KENNETH ADAMS, et al. and JIMMY MARTINEZ, et al., 

respectfully pray pursuant to Fed. R. App. P. 40 and D.C. Circuit 

Rule 15 that the panel grant rehearing of its decision and judgment 

announced on June 26, 1990. Women's Equity Action League (WEAL)

v. Cavazos. No. 88-5065, et al. , slip op. (D.C. Cir. June 26, 

1990). Rehearing is needed in order to clarify that the cause of 

action involving challenges on higher education, which was not 

before the panel on appeal and which falls within the "situation 

specific" category of claims not rejected under the Court's 

analysis, has not been dismissed. Rather, the logic of the Court's 

decision dictates that the higher education cause of action should 

be considered on remand to the district court in light of the 

principles set forth in the Court's opinion.

I. THE HIGHER EDUCATION CAUSE OF ACTION WAS NOT BEFORE THE 
COURT ON APPEAL

These appeals from the district court's March 11, 1983

timeframes order were originally brought by the Government in 1983



under appeal numbers 83-1590 (Adams v. Bell) and 83-1516 (Women's

Equity Action League (WEAL) v. Bell).1 The Government also filed 

a separate appeal from a March 24, 1983 district court order

regarding higher education, number 83-1591 (Adams v. Bell^. That 

appeal. No. 83-1591, was voluntarily dismissed by the Government.

During the pendency of the Government's appeals of the March 

11, 1983 timeframes order, the Supreme Court issued its decision 

in Allen v. Wright. 468 U.S. 737 (1984). This Court then remanded 

the matter to the district court for consideration whether, after 

Allen, plaintiffs still had standing under Article III of the 

Constitution to maintain the actions. WEAL v. Bell. 743 F.2d 42 

(D.C. Cir. 1984) .

The district court dismissed both actions in their entirety, 

ruling that plaintiffs lacked standing and that its prior orders 

violated the separation of powers doctrine. Adams v. Bennett. 675 

F. Supp. 668 (D.D.C. 1987). Plaintiffs and plaintiff-intervenors 

in both Adams and WEAL appealed the ruling.2 On July 7, 1989, this 

Court reversed. The Court ruled that plaintiffs had standing and 

that the separation of powers doctrine did not bar the actions. 

WEAL v. Cavazos. 879 F.2d 880 (D.C. Cir. 1989). The Court, in 

reviving the Government's pending appeals from 1983, stated the

1The Adams and WEAL cases, while treated in a parallel fashion 
in the district court were not consolidated.

2The appeal numbers assigned to these appeals were Nos. 88- 
5065, 88-5068, 88-5070 and 88-5088. By orders of this Court on
March 7, 1988 and May 24, 1988, plaintiffs' and plaintiff-
intervenors' appeals from the 1987 dismissal order were 
consolidated.

2



following:

At the time of our 1984 decision remanding for 
district court consideration of Allen v. Wright, we left 
several matters unaddressed. The government officers, 
in their appeal from the district court's March 11, 1983 
orders, had emphasized that recent Supreme Court 
decisions notably limit judicial supervision of agency 
law enforcement processes at the behest of statutory 
beneficiaries. . . . We no longer defer the issues raised 
or suggested in the prior appeal.

To determine whether plaintiffs may proceed further 
in the district court, this court acknowledges the 
propriety of taking up, in view of current Supreme Court 
instruction, these previously tendered issues.

WEAL v. Cavazos. 879 F.2d at 887 (emphasis added). Thus it is
clear that the appeals from the district court's 1987 ruling

dismissing the complaints for lack of standing were resolved in

the 1989 WEAL v. Cavazos decision, leaving only the revived 1983

Government appeals on the timeframes order properly before this

Court.3

II. REMAND TO THE DISTRICT COURT IS APPROPRIATE FOR FURTHER 
CONSIDERATION OF CLAIMS NOT BEFORE THE COURT ON APPEAL

In its opinion determining the present timeframes appeal, the

panel acknowledged that the higher education portion of the case

"remained discrete" and that the March 24, 1983 higher education

3 # #Plaintiffs-appellees did question, in their most recent brief 
on appeal, whether there was a jurisdictional basis for 
adjudicating one issue raised sua sponte by the Court that directly 
addressed only the higher education portion of the case. Brief for 
Plaintiffs-Appellees, filed April 2, 1990, at 2 n.l. Plaintiffs
also apprised the Court of the relevance to the higher education 
part of the case of a ruling on the cause of action issue because 
a broad legal ruling on the issue could have, as a practical 
matter, precluded further relief in higher education although that 
specific claim was not before the Court. Id. at 9.

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order was "consistent" with the guidance from the en banc court in

Adams v. Bell. 711 F.2d 161, 165 (D.C. Cir. 1983) (en banc), cert.

denied.. 465 U.S. 1021 (1984) (approving continued monitoring of

the initiation of the enforcement process). WEAL v. Cavazos. No.

88-5065, et al. , slip op. at 7 n.4. Having distinguished this part

of the case (which, as we have demonstrated, was not involved in

the pending appeal), the panel proceeded to emphasize that

this litigation, as now contoured, is in no part 
situation specific. Plaintiffs do not challenge the 
federal funding agency defendants for supporting any 
particular institution or program. . . . Homing in on
that overriding issue, we discern no legislative intent 
to authorize the grand scale, long term rights of action 
plaintiffs claim here.

Id. at 10. The Court concluded by holding that "the generalized 

action plaintiffs pursue against federal executive agencies lacks 

the requisite green light from the legislative branch." Id. at 18.

As noted in the briefs on appeal filed both in 1989 and 1990 
by the Adams plaintiffs and Martinez intervenors, if this case is 

returned to the district court, plaintiffs wish to challenge 

specific action by the agency with respect to particular state 

systems of higher education. Specifically, plaintiffs contend that 

since dismissal of this action by the district court in 1987, the 

Department of Education has released eight states from any further 

remedial obligations under Title VI by applying an improper legal 

standard. Plaintiffs will seek precisely the same kind of

4Brief for Plaintiffs-Appellees, filed April 2, 1990, at 9- 
10 and 46-47. Brief for Plaintiffs-Appellants, Kenneth Adams, et 
al., and Plaintiff-Intervenor-Appellants, Jimmy Martinez, et al.. 
filed March 29, 1989, at 15-17.

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determination that this Court, en banc. approved in Adams v. Bell. 

711 F.2d at 166 n.30 & 170 n.40 —  a finding that the Office for 

Civil Rights had abandoned longstanding agency regulations and 

guidelines in determining whether specific states were in 

compliance with Title VI. As plaintiffs' counsel stated at oral 

argument, OCR's actions with respect to the higher education 

systems in these states amounts to an abdication of its statutory 

duty and is the equivalent of the continuation or revival of a 

conscious policy of non-enforcement, refusal to follow established 

precedent and longstanding agency regulations, and refusal to apply 
correct legal standards.

The Adams plaintiffs and Martinez intervenors submit, and are 

prepared to demonstrate, that at the least, the higher education 

issues which they seek to pursue in the district court are 

appropriately "situation-specific" and should be permitted to go 

forward. That determination should, however, be made in the first 

instance by the district court upon consideration of the principles 

outlined in the panel's opinion on this timeframes appeal.

Nothing in the panel's opinion is inconsistent with the 

arguments made herein, except the final sentence of the 

"Conclusion" which states that "the district court's dismissal of 

plaintiffs' complaints is Affirmed." WEAL v. Cavazos. No. 88- 

5065, slip op. at 19. As explained above, the district court's 

1987 dismissal of plaintiffs' complaints was previously reversed 

in 1989 in WEAL v. Cavazos, 879 F.2d 880, and was no longer pending

5



only the 1983 timeframes order remained onbefore the Court;5

appeal.

Petitioners therefore respectfully pray that the panel grant 

rehearing and upon reconsideration, amend the "Conclusion" portion 

of the opinion and judgment to instruct the district court on 
remand to consider, in light of the principles set forth in the 

opinion, the remaining claims not presented by the Government's 

1983 appeal of the timeframes order.

SUSAN E. BROWN 
NORMA V. CANTU

Mexican-American Legal 
Defense and Educational Fund 
140 East Houston Street 
San Antonio, Texas 78205 
(512) 224-5476

Respectfully submitted

jIOTT C. LICHTMAT 
jichtman, Trister,
Singer & Ross
1666 Connecticut Ave., N.W.
Suite 501
Washington, D.C. 20009 
(202) 328-1666

HADRIAN R. KATZ 
L. HOPE O'KEEFFE 

Arnold & Porter 
1200 New Hampshire Ave., N.W. 
Washington, D.C. 20036 
(202) 872-6700

Counsel for Plaintiff- 
Intervenors, Jimmy Martinez,
Ben Salazar, Pablo Ortega, 
and Arturo Gomez, Jr.

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

JANELL M. BYRD
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Counsel for Plaintiffs, 
Kenneth Adams, et al.

5In this regard, the appeal numbers in the caption of the 
panel's June 26, 1990 opinion are incorrect in that they identify 
plaintiffs' appeals from the 1987 dismissal on standing grounds 
instead of the Government's appeals from the 1983 timeframes order 
(Nos. 83-1590 and 83-1516).

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CERTIFICATE OF SERVICE
I hereby certify that on this the 10th day of August, 1990, 

I served the foregoing upon counsel of record by causing copies to 
be delivered by hand to:

Michael Jay Singer
Alfred Mollin
Matthew Collette
Appellate Staff
Civil Division, Rm. 3631
Department of Justice
10th and Constitution Avenue, N.W.
Washington, D.C. 20530

and by first-class U.S. mail, postage pre-paid to:

Coleman S. Hicks
Carolyn Vinson
Covington & Burling
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20044

Marcia D. Greenberger 
Brenda V. Smith 
National Women's Law Center 
1616 P Street, N.W.
Washington, D.C. 20036

John D. Aldock 
Elizabeth Brown 
Shea & Gardner
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036