Womens Equity Action League v. Cavazos Brief for Plaintiffs-Appellees

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
A3 Required by Rule 11(a)(1) of the General Rules of this 

Court, the undersigned, counsel of record for appellees, certifies:
A. The following listed parties appeared below:
1. As plaintiffs in Adams v. Cavazos (appellees herein): 

Kenneth Adams, Keith Buckhalter Adams, Linda Adams, Garry Quincy 
Adams, Lorie Ann Adams, Tony Ray Adams, John Quincy Adams, Henry 
Ayers, Gwendoline Ayers, Jake Ayers, Jack R. Gautreaux, Mary 
Fullenkamp, Waddia Ann Brown, Sandra Lee Wright, Cassandra Thurmon, 
Ethel Mae Thurmon, Terry Minnifield Thurmon, Bessie R. Thurmon, 
Elizabeth Ray, Belinda Ray, Bernice Ray, Robert F. Jordan, Wanda 
L. Brown, Euretha Lynn West, Myra West, Stephanie Halliburton, Iris 
Halliburton, Gerald Wayne Rainey, Carol Rainey, Helen Ruth Moore, 
James Edward Moore, Solomon V. Thompson, Dr. V.F. Thompson, 
Charlotte McDaniel, Ernest McDaniel, Dianne Young, Ora Lee Young, 
Linda Ford, Georgia Lee Ford, Sheila Faye Thomas, Edmonia Norris, 
Chester Fairley, Jr., Vera Fairley, Alice Moore, Madelyn Moore, 
Linda Lee Cody, A.B. Cody, Maurice Finkelstein, Virginia Dec. 
Frank, Barry McManus, Charles Collier, Craigory 0. Allen, Johnalynn 
Holland, Amy Lillian Garland, David L. Robinson, Darrian L. Bell, 
Armon Coleman, Keysha Porter, Stephanie A. Moss, Dolphanie D. 
Richard, Joseph Anthony Mitchell II, Michelle T. Battle, Michael 
Hargrove, Debra Hughes, Lewvenia Parks, Betty L. Johnson, Sharon 
D. Bostic. Tracey L. Davis, Ginger Caprice Howington, Katian 
Colvin, Johnny Respus, Detrice Page, Melissa L. Eaddy, Dareather 
Ann Tilley, Robert Arrington, Felix Boyd, Marlene Johnson, Angela



M. Waller, Tracy K. Adams, Jackie Waller, Kerr Martin, Tony 
Whittingham, Andrea Lynn Green, Brenda Collier, Darryl Bozeman, 
Christopher L. Mann, Elburn L. Brown, Anthony Johnson, Sondra G. 
Petty, Norris L. Greer, Denita V. Davis, Michele R. Williams, Doris 
Singleton, Morris Nellum.

This action was certified as a class action by Order of the 
District Court on May 9, 1984.

2. As intervenors in Adams y. Cavazos (appellees herein): 
Women's Equity Action League, National Organization for Women, 
National Education Association, Federation of Organizations for 
Professional Women, Cynthia L. Buxton, Kay Paul Whyburn, Jimmy 
Martinez, Ben G. Salazar, Pablo E. Ortega, Arturo Gomez, Jr., 
National Federation of the Blind, Douglas J. Usiak, Joyce F. Stiff.

3. As plaintiffs in WEAL v. Cavazos (appellees herein): 
Women's Equity Action League, National Organization for Women, 
National Education Association, Federation of Organizations for 
Professional Women, Association of Women in Science, United States 
Student Association, Elizabeth Farians and Dorothy Raffel.

4. The following organizations and individuals were denied
intervention in Adams v. Cavazos and have appealed: Association
for Retarded Citizens of Georgia, Venita Ellington, Robert P. 
Ellington, Steven Michael Tussey, Kelly Lynn Burns Katy Vevai, 
Christopher T. Socorso, Andrea D. Sheridan, Mary Margaret Riccio, 
Jill Kathryn Robleto, and Heidi Buchanon.

5. As defendants in Adams v. Cavazos (appellants herein): 
Lauro F. Cavazos, Secretary of the Department of Education and

• • xi



William L. Smith, Acting Assistant Secretary for Civil Rights of 
the Department of Education.

6. As defendants in WEAL v. Cavazos (appellants herein): 
Lauro P. Cavazos, Secretary of the Department of Education and 
William L. Smith, Acting Assistant Secretary for Civil Rights of 
the Department of Education; Elizabeth Dole, Secretary of the 
Department of Labor; and Cari Dominguez, Director of the Office of 
Federal Contract Compliance Programs, Department of Labor.

B. The rulings at issue in this Court were issued on 
March 11, 1983 by District Judge John H. Pratt, and are found at 
JA 924-62.

C. This case has previously been before this Court as: 
Adams v. Richardson. No. 83-1273 
Adams v. Bell. No. 83-1590 
WEAL v. Bell. No. 83-1516
It was also before this Court in other aspects as:
Adams v. Mathews. No. 76-1395 
Adams v. Bell. No. 81-1715 
WEAL v. Bell. No. 83-1516

The docket number 88-5068 above includes appeals consolidated 
on March 7, 1988, formerly docket numbers 88-5068 through 88-5071 
and on May 24, 1988, formerly number 88-5088. Numbers 88-5068 (as 
enlarged) and 88-5065 were consolidated on May 24, 1988.

iii



These representations are made in order that judges of this 
Court, inter alia, may evaluate possible disqualification or
recusal.

Respectfully submitted.

Elliott C. Lichtman
Attorney of Record for Appellees

iv



TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND
RELATED CASES ..........................................  i
TABLE OF CONTENTS ............................. V

TABLE OF AUTHORITIES ............................  viii
QUESTIONS PRESENTED ....................................  1
STATUTES AND REGULATIONS ...............................  2
JURISDICTION ...........................................  2
STATEMENT OF THE CASE ................................. 2

FACTUAL HISTORY .................................. 4
I. THE CONSENTED TO TIMEFRAMES REMEDY REMAINS

NECESSARY ................................... 4
A. The 1973 and 1975 Rulings ..............  4
B. The 1976 Settlement Agreement and the

1977 Consent Order ..................... 5
C. Continued Massive Delays, and Violation

of the 1977 Consent Decree Intended to 
Ensure Government Compliance With Its 
Statutory Duties ......................  7

D. The Government Has Now Adopted the
Timeframes As Its O w n ................... 8

II. OCR'S REFUSAL TO APPLY ITS OWN HIGHER EDUCATION
DESEGREGATION STANDARDS REQUIRES FURTHER COURT 
INTERVENTION .............. .................  9
A. Procedural Posture of the Higher

Education Claim ........................ 9
B. Further Court Intervention Is Needed In

Higher Education ......................  9
SUMMARY OF THE ARGUMENT ............................... 10

I. PLAINTIFFS HAVE A CAUSE OF ACTION UNDER
THESE STATUTES .............................. 10

Page

V



TBBT.B OF CONTENTS (cont'd)

II. THE COURT HAD AUTHORITY TO APPROVE THE
TIMEFRAKES REMEDY ........................... 12

III. THE GOVERNMENT IS BOUND BY THE 1977 CONSENT
DECREE ......................................  13

IV. THE STATES ARE NOT INDISPENSABLE PARTIES .... 14
ARGUMENT ..............................................  14

I. PLAINTIFFS HAVE A CAUSE OF ACTION AGAINST
THE GOVERNMENT FOR ITS ILLEGAL CONDUCT .....  14
A. PLAINTIFFS HAVE A CAUSE OF ACTION UNDER

THE ADMINISTRATION PROCEDURE ACT ......  15
1. Heckler v. Chaney Is No B a r ......  15

a. The Heckler Presumption Is
Inapplicable ................  15

b. If the Presumption of Non- 
reviewability Is Applicable,
It Is Rebutted ..............  17

2. Section 704 of the APA Does Not
Preclude Review ..................  20

3. The Law of This Case Upholds Plaintiffs' APA Cause of Action ... 23
B. PLAINTIFFS HAVE AN IMPLIED CAUSE OF 

ACTION AGAINST THE FUNDING AGENCIES .... 24
1. Congressional Intent ..............  25
2. An Implied Cause Of Action Against

the Agency To Require Compliance Is 
Entirely Consistent With the 
Statutory Scheme .................  31

C. A CAUSE OF ACTION EXISTS UNDER THE
CONSTITUTION ........................... 32

II. THE TIMEFRAMES ORDERS ARE A PROPER EXERCISE
OF JUDICIAL AUTHORITY ....................... 32

Page



TART.K OP CONTENTS (cont'd)

A. The "Rule of Reason" Authorizes TheRemedial Orders Entered in This Case ... 32
III. THE GOVERNMENT IS BOUND BY THE 1977 CONSENT

DECREE ......................................  37
A. CURRENT GOVERNMENT OFFICIALS ARE BOUND

BY CONSENT DECREES ENTERED BY THEIR 
PREDECESSORS ........................... 37
1. Courts Routinely Enforce Consent

Decrees Against Subsequent 
Administrations ..................  37

2. Failure to Enforce Consent Decrees 
Against Subsequent Administrations 
Would Seriously Hinder the 
Government's Ability to Settle
Cases ............................. 40

B. THE AGENCIES HAVE NOT MET THE STANDARDS 
FOR VACATING THE 1977 CONSENT DECREE ... 41
1. The swift Standard Governs this

Case .............................. 41
2. The Government Has Failed to

Justify Vacating the Consent Decree 
Under Any Court-Adopted Test ...... 44

IV. THE STATES ARE NOT INDISPENSABLE PARTIES .... 46
CONCLUSION ............................................  50

Page

vii



TABLE OF AUTHORITIES

*Adams v. Bell. 711 F.2d 161 (D.C. Cir. 1983)
(sn banc) .......... .........................  passim

Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977) 10,47
Adams V. Matthews, No. 3095-70 (D.D.C. June 14,

1976).........................................  5
Adams v. Richardson. 351 F. Supp. 636 (D.D.C.

1973)   10
Adams v. Richardson. 356 F. Supp. 92 (D.D.C.

1973)   4
*Adams v. Richardson. 480 F.2d 1159 (D.C. Cir.

1973)   4,16,18,23
Adams v. Weinberger, 391 F. Supp. 269 (D.D.C.

1975)   5
Airline Pilots Ass'n. Int'l v. Civil Aeronautics

Bd. . 750 F. 2d 81 (D.C. Cir. 1984)   36
Alexander v. Holmes County Bd. of Educ.. 396 U.S.

19 (1969)   36
Allen v. State Board of Elections, 393 U.S. 544

(1969)   26
*Alliance to End Repression v. City of Chicago.

742 F.2d 1007 (7th Cir. 1984)   37,41,44
Amino Bros. Co. v. United States. 372 F.2d 485

(Ct. Cl.), cert, denied. 389 U.S. 846 (1967) . 39
B.K. Instrument. Inc, v. United States. 715 F.2d

713 (2d Cir. 1983)   31
Badglev v. Santacroce. 800 F.2d 33 (2d Cir. 1986),

cert, denied. 479 U.S. 1067 (1987)   35
Barnett v. Rodgers. 410 F.2d 995 (D.C. Cir. 1969) 38
Beller v. Middendorf. 632 F.2d 788 (9th Cir.),

cert, denied. 452 U.S. 905 (1980) ...........  31
♦Berger v. Heckler. 771 F.2d 1556 (2d Cir. 1985) . 37

CASES: Page



TABLE OF AUTHORITIES (Continued)

Bermudez v. United States Dep't of Aaric.. .490 
F.2d 7IS (D.C. Cir.), cert, denied. 414 U.S.
1104 (1973) .................................. 48

Bob Jones University v. United States. 461 U.S.
574 (1983) .................................. 27

Bowen v. Agencies Opposed to Social Secuitv
Entrapment. 477 U.S. 41 (1986)   39

CASES: Page

Bowen v. Michigan Academy rtf Family Physicians.
467 U.S. 667 (1986)   15

Browder v. Director. Dep't of Corrections. 434
U.S. 257 (1978)   46

*Brown v. Califano. 627 F.2d 1221 (D.C.
Cir. 1980)   6/12/25/32/36

Brown v. Weinberger. 417 F. Supp. 1215 (D.D.C.
1976)   6

Bucklev v. Valeo. 424 U.S. 1 (1976)   33
*Cannon v. University of Chicago. 441 U.S. 677

(1979)........................................ passim
C. C. Distributors. Inc, v. United States.

883 F. 2d 146 (D.C. Cir. 1989) ...............  19
Center for Auto Safety v. Dole. 846 F.2d 1532

(D.C. cir. 1988)   19
*Citizens for a Better Environment v. Gorsuch. 718 

F.2d 1117 (D.C. Cir. 1983)/ cert, denied. 467
U.S. 1219 (1984)   34,35,40/41

Citizens to Preserve Overton Park v. Volpe. 401
U.S. 402 (1971)   15

Cloverleaf Standardbred Owners Assoc.. Inc, v.
National Bank of Washington. 699 F.2d 1274
(D.C. Cir. 1983)   48

Coalition on Sensible Transp. Inc, v. Dole. 631
F. supp. 1382 (D.D.C. 1986)   48

ix



Common Cause V. F.E.C.. 692 F. Supp. 1397 (D.D.C.
19SS)   36

*Cort V. Ash. 422 U.S. 66 (1975) ................  24,25,29,31
Council of and for the Blind of Delaware County 

Valiev. Inc, v. Regan, 709 F.2d 1521 (D.C.
Cir. 1983)   11,20,21,22,24,25

Cousins v. Secretary of the Dep't of Transp., 880
F.2d 603 (1st Cir. 1989)   29

*cutler V. Haves. 818 F.2d 879 (D.C. Cir. 1987) .. 16,17,18,36
Defenders of Wildlife v. Andrus. 77 F.R.D. 448

(D.D.C. 1978)   48
Dotson V. HUD. 731 F.2d 313 (6th Cir. 1984) ....  37
Drake v. Pierce. 691 F. Supp. 264 (W.D. Wash.

1988)   36
Dronenburcr v. Zech. 741 F.2d 1388 (D.C. Cir.

1984) ........................................  31
Dunlop v. Bachowski. 421 U.S. 560 (1975)   18
Environmental Defense Fund v. EPA. 852 F.2d 1316

(D.C. Cir. 1988) ...........................  36
Farmworker Justice Fund. Inc, v. Brock. 811 F.2d 

613 (D.C. Cir.), vacated as moot. 817 F.2d 890
(D.C. Cir. 1987) ...........................  17

Ferrell v. Pierce. 743 F.2d 454 (7th Cir. 1984) . 37
*Fortin v. Commissioner of the Mass. Dep't of

Public Welfare. 692 F.2d 790 (1st Cir. 1982) . 42,43,46
Garrett v. Bamford. 538 F.2d 63 (3d Cir.), cert.

denied. 429 U.S. 977 (1976)   22
Garrett V. city Of Hamtramclc. 503 F.2d 1236 (6th

cir. 1974) ...................................  25
*Gautreaux v. Chicago Hous. Auth.. 503 F.2d 930 

(7th Cir. 1974), aff1d sub nom., Hills v.
Gautreaux, 425 U.S. 284 (1976) ................. 25,28,30

TABLE OF AUTHORITIES (Continued)
CASES: Page

X



TABLE OF AUTHORITIES (Continued)

Gautreaux v. Romney# 448 F.2d 731 (7th Cir. 1971) 25
Greater Los Angeles Council on Deafness v.

Baldriqe. 827 F.2d 1353 (9th Cir. 1987) .....  11,22
Hall V. EEOC. 456 F. Supp. 695 (N.D. Cal. 1978) . 22
Heckler v. Chaney. 470 U.S. 821(1985)   11,15,16,17,18,20
Heckler v. Day. 467 U.S. 104 (1984) ............  34
Home Bldg, and Loan Ass'n v. Blaisdell, 290 U.S.

398 (1934)   38
INS V. Chadha. 462 U.S. 919 (1983) .............  40
Ilan-Gat Engineers, Ltd, v. Antigua Int'l Bank,

659 F.2d 234 (D.C. Cir. 1981)   48
In Re Agent Orange Product Liability Litigation,

818 F.2d 179 (2d Cir.), cert, denied, 108 S.
Ct. 2899 (1987)   33

In Re Am. Fed'n of Gov't Employees. 837 F.2d 503
(D.C. Cir. 1988)   34

International Union. United Auto.. Aerospace and 
Aqric. Implement Workers v. Donovan, 756 F.2d
162 (D.C. cir. 1985)   36

International Union. United Automobile Workers v.
Brock. 783 F.2d 237 (D.C. Cir. 1986) ........  17

Jaffee v. United States. 592 F.2d 712 (3d Cir.),
cert, denied. 441 U.S. 961 (1979) ............ 31

Keith V. Volpe. 784 F.2d 1457 (9th Cir. 1986) ... 43
Kinq-Seelev Thermos Co. v. Aladdin Industries,

418 F.2d 31 (2d Cir. 1969) ..................  42,43,44
Legal Aid Society of Alameda County v. Brennan,

608 F.2d 1319 (9th Cir. 1979),,cert, denied,
447 U.S. 921 (1980)   23

Little Earth of United Tribes v. Department of
Hous.. 584 F. Supp. 1292 (D. Minn. 1983) ....  25

CASES: Page

xi



*Local Number 93 v. City of Cleveland, 478 U.S.
501 (1386)   35/40

Lvnch v. United States, 292 U.S. 571 (1934)   39
MCI Telaeonmunications Corp. v. FCC. 627 F.2d 322

(D.C. cir. 1980)   36
Marlov v. U.S. Dept, of Education. 820 F.2d 581 

(2d Cir. 1987), cert, denied, 484 U.S. 1044
(1988)     22/29

Martin v. Wilks. 109 S. Ct. 2180 (1989)   49
Mikulav Co.. Inc, v. Urban Mass Transp. Admin.,

90 F.R.D. 250 (D.D.C. 1980)   48
Montgomery Improvement Ass1̂ .  Inc, v. United

States Dep't of Hous. and Urban Dev., 645 F.2d
291 (5th cir. 1981)   25

Morrison v. Olson. 487 U.S. __/ 101 L. Ed. 2d 569
(1988)   33

NAACP v. Medical Center. Inc.. 599 F.2d 1247 (3d
Cir. 1979)   25,30

Nader V. FCC. 520 F.2d 182 (D.C. Cir. 1975) ....  36

TABLE OF AUTHORITIES (Continued)
c a s e s : Page

National Black Police Ass»n. v. Velde. 631 F.2d 
784 (D.C. Cir. 1980), vacated on other 
grounds. 458 U.S. 591 (1982), on remand. 712 
F.2d 569 (D.C. Cir. 1983), cert, denied. 466
U.S. 963 (1984)   25

New York Ass’n for Retarded Children. Inc, v.
Carey. 706 F.2d 956 (2d Cir.), cert, denied.
464 U.S. 915 (1983)   43,44

Newman v. Graddick. 740 F.2d 1513 (11th Cir.
1984)    37

Nixon v. Administrator of General Services. 433
U.S. 425 (1977)   33

North Haven Bd. of Educ. v. Bell. 456 U.S. 512
(1982)   40

xii



Occidental Life Ins. Co. v. EEOC. 432 U.S. 355
(1377) .......................................  22

Officers for Justice v. Civil Serv. Comm'n, 688 
F.2d 615 (9th Cir. 1982), cert, denied, 459
U.S. 1277 (1983)    40

Oil. Chem. & Atomic Workers Int1! Union v.
Zeqeer. 768 F.2d 1480 (D.C. Cir. 1985) ......  17

Padula v. Webster. 822 F.2d 97 (D.C. Cir. 1987) . 19
Park v. Didden. 695 F.2d 626 (D.C. Cir. 1982) ... 48
Perrv v. United States. 294 U.S. 330 (1935) ....  39
Philadelphia Welfare Rights Ore. v. Shapp, 602 

F.2d 1114 (3d Cir. 1979), cert, denied. 444
U.S. 1026 (1980)    43

Potomac Elec. Power Co. v. ICC. 702 F.2d 1026
(D.C. Cir. 1983)   36

Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102 (1968) ................  48,49

Public Citizen Health Research Group v. Auchter,
702 F.2d 1150 (D.C. Cir. 1983) ..............  36

Public Citizen Health Research Group v. Brock,
823 F. 2d 626 (D.C. Cir. 1987) ...............  17,36

Pyramid Lake Tribe of Indians v. Hodel. 878 F.2d
1215 (9th cir. 1989)   37

Robbins v. Reagan. 780 F.2d 37 (D.C. Cir. 1985) . 19
Safe Energy Coalition of Michigan v. United 

States Nuclear Regulatory Comm'n. 866 F.2d
1473 (D.C. cir. 1989) ...........................  19

Salvador v. Bennett. 800 F.2d 97 (7th Cir. 1986) 22,29
Schnapper v. Foley. 667 F.2d 102 (D.C. Cir.

1981), cert, denied. 455 U.S. 948 (1982) ..... 31
Shannon v. United States Dep't of Hous. and Urban

Dev. . 436 F. 2d 809 (3d Cir. 1970) ...........  25

TABLE OF AUTHORITIES (Continued)
CASES: Page

xiii



Sheehan v. Army & Air Force Exchange Service, 619 
F.2d 1132 (5th cir. 1330), rev:d on other
grounds. 456 U.S. 728 (1982) ................  31

Southern Christian Leadership Conference. Inc, v.
Connolly, 331 F. Supp. 940 (E.D. Mich. 1971) . 25

Stone v. Mississippi. 101 U.S. 814 (1880) ......  39
System Federation v. Wright. 364 U.S. 642 (1961) 39
♦Telecommunications Research & Action Center v.

FCC. 750 F. 2d 70 (D.C. Cir. 1984) ...........  12,32,33,37
♦The Presbyterian Church (U.S.A.) v. United

States. 870 F.2d 518 (9th Cir. 1989) ........  31
Thompson v. Thompson. 484 U.S. 174 (1988) ......  24,25
Traynor v. Turnage. 485 U.S. 535 (1988) ........  15,28
♦Twelve John Does v. District of Columbia. 861

F.2d 295 (D.C. cir. 1988) ...................  14,42,43,44,46
United States Trust Co. of New York v. New

Jersey. 431 U.S. 1 (1977) ...................  38
United States v. City of Chicago. 633 F.2d 1354

(7th cir. 1981) .............................. 7,8,46
United States v. City of Fort Smith, 760 F.2d 231

(8th cir. 1985) .............................. 42
United States v. Nixon. 418 U.S. 683 (1974) ....  33
♦United States v. Swift & Co.. 286 U.S. 106 (1932) passim
United States v. Western Elec. Co.. No. 65-5642,

slip op. (D.C. Cir. Jan. 16, 1990) ..........  42
United Steelworkers of Am. v. Pendergrass. 819

F.2d 1263 (3d Cir. 1987) ....................  36
Utley v. Varian Associates. Inc.. 811 F.2d 1279

(9th Cir.), cert, denied. 487 U.S. 824 (1987). 22

TABLE OF AUTHORITIES (Continued)
CASES: Page

xiv



Vermont Yankee Nuclear Power Corn, v. Natural
Resources Defense Council.. Inc.. 435 U.S. 519
(1978)   13,33,34

Warin v. Director. Dep't of the Treasury, 67 2
F.2d 590 (6th cir. 1982) ....................  31

Weinberger v. Catholic Action of Havaii/Peace
Education Project# 454 U.S. 139 (1981) ......  35

Western Fuels-Ptah. Inc, v. Manuel Lujan, Jr.,
Sec'v of Interior. No. 88-5417, slip op.
(D.C. Cir. Feb. 9, 1990)   39

Williams v. Lesiak, 822 F.2d 1223 (1st Cir. 1987) 37,42
Williams v. Vukovich. 720 F.2d 909 (6th Cir.

1983)   40
Women's Equity Action League v. Cavazos. 879 F.2d

880 (D.C. cir. 1989)   1,46
Young v. Pierce. 544 F. Supp. 1010 (E.D. Tex.

1982)     25,30

CONSTITUTIONAL PROVISIONS AND STATUTES:
U.S. Constitution, Fifth Amendment ..............  17
*Adminstrative Procedures Act, 5 U.S.C. § 701-706. passim

5 U.S.C. § 701(a)   10,34
5 U.S.C. § 704 ............................. 20
5 U.S.C. § 706(1)   15

*civil Rights Act of 1964, 42 U.S.C. § 2000d etseg. ......................................... passim
42 U.S.C. § 2000d-l ........................ passim
42 U.S.C. § 2000d .......................... passim
42 U.S.C. § 2000d-2 ........................ 14,49
42 U.S.C. § 2000d-5 ........................ 14,49

TABLE OF AUTHORITIES (Continued)
CASES: Page

X V



CONSTITUTIONAL PROVISIONS AND STATUTES: Page
Civil Rights Attorney's Pees Act,

42 U.S.C. § 1988 ................................ 27
♦Education Amendments of 1972,

20 U.S.C. §§ 1681-1684 .........................  passim
20 U.S.C. § 1682 ............................... 18

Equal Access to Justice Act, 28 U.S.C. § 2412 .....  27
20 U.S.C. 1232(d)(1), (f) .......................... 40
28 U.S.C. § 1291 ................................... 2
28 U.S.C. § 1331 ...............................  31
28 U.S.C. 1361 ......................................  32
42 U.S.C. § 1973C. ..................................  26
♦Executive Order 11246, 42 U.S.C. § 2000e note .....  passim
Executive Order 12250, 47 Fed. Reg. 32421 ...........  19
Omnibus Budget Reconciliation Act of 1981, Pub.

L. 97-35, 95 Stat. 357 (1981) ....................  27
♦Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et

seq...............................................  passim
29 U.S.C. § 794a(a) (2)   12,28

♦Section 718, Education Amendments of 1972,
86 Stat. 369 (previously codified in 20 U.S.C.
§ 1617) ................. ............ 12,27

RULES AND REGULATIONS:
Fed. R. Civ. P. 19(b) ........................... 2,47
Fed. P. Civ. P. 19(a) ........................... 48
28 C.F.R. §§ 42.401-415 ......................... 19
28 C.F.R. § 42.411(a)   20
28 C.F.R. § 50.3 .............................  19

t a b l e OF AUTHORITIES (Continued)

xv i



28 C.P.R. § 50.3.1 . A ............................  19
34 C.F.R. § 100 et seg. .........................  47
34 C.P.R. § 100.7(C)   20
34 C.F.R. § 104.61 ..............................  18,20
34 C.P.R. § 106.71 ..............................  18,20
41 C.F.R. § 60-1.24(d)   20
Revised Criteria Specifying the Ingredients of 

Acceptable Plans to Desegregate State Systems 
of Public Higher Education, 43 Fed. Reg. 6658
(Feb. 15, 1978), ............................. 46

LEGISLATIVE MATERIALS
110 Cong. Rec. 6544 (1964)   19
110 Cong. Rec. 6546 (1964)   19
110 Cong. Rec. 7062 (1964)   19
110 Cong. Rec. 13931 (1964)   19
117 Cong. Rec. 11338 (1971)   27
117 Cong. Rec. 11522 (1971)   27
117 Cong. Rec. 11725 (1971)   27
118 Cong. Rec. 18437 (1972)   26
124 Cong. Rec. 30349 (1978)   26
Civil Rights —  The President's Program. 1963;

Hearings Before the Senate Committee on the 
Judiciary on S. 1731 and S. 1750. 88th Cong.,
1st Sess. 328 (1963) .......................... 19

TABLE OF AUTHORITIES (Continued)
RULES AND REGULATIONS: Page

xvii



TABLE OF AUTHORITIES (Continued)

Rehabilitation Act Amendments of 1974. S. Rep.
No. 53-1257, 53d Cong., 2d Sees. (1974), 
reprinted in 1974 U.S. Code Cong. & Admin.
News 637 3 .................................... 2 6

The Civil Rights Attorney's Fees Award Act 
of 1976. H.R. No. 94-1158, 94th Cong.,
2d Sess. (1976) ............................... 27

LEGISLATIVE MATERIALS Page

LAW REVIEW ARTICLES:
Shane, Federal Policy Making by Consent Decree:

An Analysis of Agency and Judicial Discretion,
1987 U. Chi. Legal F. 241 ...................  40

Percival, The Bounds of Consent: Consent Decrees,
Settlements and Federal Environmental Policy
Making. 1987 U. Chi. Legal F. 327, ..........  40

♦Authorities principally relied upon.

x v m



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

WOMEN'S EQUITY ACTION LEAGUE, et al., )
)

Plaintiffs-Appellees, )
)

v. )
)

LAURO F. CAVAZOS, Secretary of Education, )
et al.. ) Nos. 88-5065,

) 88-5068, 88-5069,
Defendants-Appellants. ) 88-5070, 88-5088,

________  ) 83-1590 and
KENNETH ADAMS, et al., ) 83-1516

)
Plaintiffs-Appellees, )

)
v. )

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

)
Defendants-Appellants. )

_______________________________________________________)

BRIEF FOR PLAINTIFFS-APPELLEES KENNETH ADAMS, et al.,
AND WOMEN'S EQUITY ACTION LEAGUE, et al.,

PLAINTIFF-INTERVENOR-APPELLEES JIMMY MARTINEZ, et al., 
NATIONAL FEDERATION OF THE BLIND, AND CYNTHIA BUXTON, et al., AND 

PLAINTIFF-INTERVENOR-APPLICANTS ASSOCIATION OF 
RETARDED CITIZENS OF GEORGIA

QUESTIONS PRESENTED
This Court framed the issues presented in its July 7, 1989 

opinion, Women's Equity Action League v. Cavazos. 879 F.2d 880, 887 
(D.C. Cir. 1989) (citations omitted):

1. Do the statutes plaintiffs invoke authorize an 
action directly against the federal funding/compliance- 
monitoring agency?
2. Does the district court have authority to impose 
procedural or enforcement requirements (timeframes, 
compliance monitoring, and reporting) supplementing those 
set out in the governing legislation?
3. Are current government officer defendants bound by 
provisions set out in a consent decree negotiated and 
agreed upon by prior administrations? If they are, what



must they show if they wish to be released from, or 
obtain modification of, those provisions?
4. [With respect to the higher education order of March 
24, 1983, in No. 3095-70, Adams v. Cavazos 1 : Are the
states whose plans, reports, and compliance plaintiffs 
seek to review persons properly "regarded as 
indispensable" within the meaning of Fed. R. Civ. P.
19(b)? STATUTES AND REGULATIONS
The relevant statutes and regulations are reproduced in the 

separate Addendum to this brief.
JURISDICTION

Jurisdiction exists in this Court under 28 U.S.C. § 1291.1
STATEMENT OF THE CASE

The Government filed this appeal in 1983 challenging the 
district court's refusal to vacate a December 1977 Consent Decree. 
That Decree was designed to provide plaintiffs and intervenors 
relief from the longstanding failure by the Office for Civil Rights 
of the Department of Education (OCR) and the Office of Federal 
Contract Compliance Programs of the Department of Labor (OFCCP) to 
comply with civil rights laws prohibiting discrimination on the 
basis of race, national origin, sex, and disability in schools 
receiving federal funding.2 This Court initially postponed 
resolution of the appeal pending determination of plaintiffs' 
standing. Last year, the Court held that plaintiffs and

1 Because the Government did not appeal the district court's 
order in the higher education portion of the case, the 
jurisdictional basis for question four is uncertain.

2Those laws are Title VI of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et seq. (Title VI), Title IX of the Education 
Amendments of 1972, 20 U.S.C. §§ 1681-1684 (Title IX), Sections 504 
and 504a of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et 
seq. (§ 504), and Executive Order 11246, 42 U.S.C. § 2000e note 
(Executive Order).

2



intervenors have standing to sue the Government directly and that 
separation of powers concerns do not prevent this litigation. The 
Court also ordered supplemental briefs on additional questions.

The Government now urges the Court, in effect, to reverse 
prior en banc rulings in this case, and to free it from judicial 
review —  now and forever. It intimates that this administration 
should not be bound by a Consent Decree agreed to by its 
predecessors —  a position that effectively would prevent the 
Executive from ever settling cases —  and rests its argument for 
dissolution of the Decree simply on the allegation that the Decree 
has endured too long. It ignores several key facts: the Decree was 
designed to correct the Government's noncompliance with the 
substantive law; the Decree's terms reflect the earliest timeframes 
order entered in 1975 which the Government chose not to appeal; 
while entered on December 29, 1977,- the Decree did not take effect 
until September of 1980; and soon thereafter, in March of 1982, the 
district court found that the Government had violated the Decree in 
many important respects, and that the purposes of the Decree had 
not been accomplished.

The questions presented, and the Government's initial brief, 
require a brief overview of the history of this case which has 
involved two major efforts since its outset: 1) preventing the 
Government's default in processing cases of discrimination by 
federal fund recipients (the "timeframes" issue), and 2) ensuring 
enforcement of the Government's mandate to eliminate discrimination 
in federally funded state systems of higher education (the "higher 
education" issue). Focusing separately on each, we summarize the 
facts that most pertain to the questions presented.

3



FACTUAL HISTORY
I. THE CONSENTED TO TIMEFRAMES REMEDY REMAINS NECESSARY

A. The 1973 and 1975 Rulings.
In June of 1973, this Court ruled unanimously en banc that 

OCR's practice of unending negotiations with discriminating fund 
recipients was an abdication of its statutory responsibilities. 
Adams v. Richardson. 480 F.2d 1159, 1162-63 (D.C. Cir. 1973) (en
banc); JA 224. The Court affirmed, with minor modifications, the 
district court's order directing the agency to take enforcement 
actions against 100 noncomplying school districts within 60 days 
and to report twice a year on its failure to observe timeframes.3 
Id. (affirming and modifying Adams v. Richardson. 356 F. Supp. 92, 
95-96 (D.D.C. 1973)). Thus, the seminal Adams order, approved by 
this Court, addressed the pattern of nonenforcement and urged 
action on future complaints within a reasonable time period.4

Presented with a repetition of protracted delays, in March of 
1975, the district court found that

HEW has often delayed too long . . . [in determining
Title VI violations, and has] freguently failed to

3Significantly, the 1973 en banc decision affirmed the 
following reporting provision of the district court's order:

Whenever within 120 days of receipt of such complaint 
. . . no administrative determination as to racial
segregation or discrimination was made by HEW, an 
explanation of the specific reasons for the failure to 
make such determination [shall be given]. . . .  Whenever 
enforcement proceedings have not been commenced within 90 
days of an HEW finding of racial segregation or 
discrimination, the specific reasons for the failure by 
defendants to commence such proceeding [shall be given].

356 F. Supp. at 95.
4In 1974, WEAL v. Weinberger. No. 74-1720, was filed 

challenging inordinate delays in Title IX enforcement.
4



commence enforcement proceedings. . . . although the
efforts to obtain voluntary compliance have not succeeded 
during a substantial period of time.

Adams v. Weinberger. 391 F. Supp. 269, 273 (D.D.C. 1975) (examples
omitted). Finding continued "over-reliance by HEW on .
voluntary negotiation over protracted time periods," the district
court concluded that the violation was ongoing. Id. at 271. The
court established timeframes for complaint processing and
compliance reviews and supplemented the reporting requirements.
Id. at 27 3, 5 F.5 The Government chose not to appeal.

B. The 1976 Settlement Agreement and the 1977 Consent Order
In 1976, Hispanics and women and girls intervened in Adams.

JA 349-415.6 They alleged inordinate delay or total failure to
comply with Title VI, Title IX, and Executive Order 11246. Id.
Pleading inability to comply with the 1975 order, the Government
moved for relief in the district court. Based on OCR's experience
with the timeframes, OCR's director and top staff, who were
officials of the Ford administration, engaged in negotiations with
plaintiffs and intervenors. Those negotiations culminated in a
settlement agreement modelled upon the 1975 timeframes order.
Adams v. Matthews. No. 3095-70 (D.D.C. June 14, 1976).

Shortly after the June 1976 order, in a parallel proceeding
brought by a class of black students in Northern and Western

5In 5 F the district court directed: (1) an OCR letter of
findings within 90 days after receipt of a complaint; (2) where OCR 
finds a violation, corrective action through negotiations within an 
additional 90 days; and (3) where voluntary compliance is not 
secured, enforcement proceedings within 30 additional days.

6Citations herein to the Joint Appendix filed with the 1989
appeals are designated "JA __." Citations to the Joint Appendix
filed with the 1983 appeals are designated "1983 JA __."

5



Brown v. Weinberger. 417 F. Supp. 1215 (D.D.C. 1976),states,7 
Judge Sirica found:

The substantial delays of from one and one-half to eight 
years without bringing these investigations to 
conclusions . . . [while the funding continued] violate
the agency's own regulations and the express intent of 
Congress in Title VI.

Id. at 1220.
In the twenty-six school districts here, compliance 
negotiations have been going on for periods of time 
ranging from nine months to three years without success.

Id. at 1222. The Government did not appeal these findings.
Similarly, in WEAL v. Califano. the Government conceded that

it had been inadequately enforcing Title IX and Executive Order
11246. 1983 JA 572-74. In 1977, the National Federation of the
Blind intervened, citing OCR's admitted failure to enforce § 504.
1983 JA 583.

The repeated findings and concessions of systemic delay and 
inaction ultimately brought about protracted and intensive 
negotiations between plaintiffs and intervenors and the Director of 
OCR, the Director of OFCCP, the Solicitor of the Department of 
Labor, and their top assistants, all officials of the Carter 
Administration. The result was a carefully crafted agreement 
incorporated in a Consent Decree entered on December 29, 1977.8
The Decree reflected OCR's two and one-half years of experience 
with the timeframes and required enforcement of Title VI, Title IX, 
Section 504, and the Executive Order. The effective date of the

7The initial Adams claims covered the 17 Southern and border 
states.

aThis order was also entered in settlement of the class action 
Brown v. Califano. JA 601.

6



Decree was delayed, however, until the end of FY 1979 to allow the 
agencies to clear the large backlog of cases. 1983 JA 49-54.

C. Continued Massive Delays, and Violation of the
1977 Consent Decree Intended to Ensure 
Government Compliance With Its Statutory 
Duties

Shortly after the timeframes began to apply in late 1980, it 
became apparent that the Government still had not corrected its 
violation of the civil rights laws. At OCR there remained 170 very 
old complaints —  pending as long as nine years —  that the Agency 
had been directed to complete by 1979. 1983 JA 153, 376-86. At
OFCCP 47 very old complaints remained unresolved as of October 
1980, despite the Consent Decree's directive that 35 be completed 
by the end of FY 1978 and the rest by the end of FY 1979.’ On
these facts plaintiffs and intervenors moved for an order to show
cause why the Government should not be held in contempt. Id. at 
150-92.

Following a three-day hearing in March 1982, the district 
court rejected the Government's assertions —  the only occasion on 
which it has offered evidence —  that changes in fact or law 
justified vacating the 1977 Decree. The court found that the 
Government had not met the "applicable standard that there be 'a 
"'clear showing of grievous wrong evoked by new and unforseen 
conditions,' United States v. Swift & Co.. 286 U.S. 106, 119
(1932) , and that 'the purposes of the litigation as incorporated in 
the decree,' United States v. City of Chicago. 663 F.2d 1354, 1360 9 * *

9Eighty-eight percent of OCR's compliance reviews were "behind
schedule," 1983 JA 151, and sixty-seven percent of the letters of
findings on discrimination complaints were not issued on time, id. 
at 152.

7



JA 961-62. Despite(7th Cir. 1981), have been accomplished." 
finding that the decree had been "violated in many important 
respects," JA 925, the district court, which has consistently been 
receptive to modifying the timeframes, revised the Decree in 1983 
to make it easier for the Government to comply.10

In its brief to this Court in 1983, the Government 
forthrightly admitted that "Defendants' record of compliance with 
these time frame decrees, some of which were consented to, has 
never been good."11 Thus, the record before the Court is 
undisputed that there has never been a period of compliance with 
these decrees.

D. The Government Has Now Adopted the Timeframes As Its Own
The feasibility and reasonableness of these time rules is 

dramatically illustrated by the Government's actions following 
dismissal on December 11, 1987. Initially, OCR announced that
until further notice "all procedures and timeframes mandated by the 
Adams order(s) [are to] remain in effect." JA 1666.12 On January 
24, 1990 —  freed of all judicial orders by the 1987 dismissal and 
the subsequent denial of plaintiffs' motions for stay —  OCR

10The 1977 Consent Decree as continued and modified by the 
March 11, 1983 order does four simple things: 1) defines terms
necessary to understanding and triggering its provisions; 2) 
establishes time limits on processing complaints and compliance 
reviews, with generous exceptions for complex and "policy" cases; 
3) provides for tolling of those time limits in numerous 
circumstances, and 4) requires reporting by the agency to allow 
monitoring. JA 924. It has no impact on any substantive
compliance decision and has no application whatsoever after fund 
termination proceedings commence. Id.

11Brief for Appellants in Nos. 83-1590 and 83-1516, filed Sept. 
19, 1983, at 4.

12The Agency has however ceased the reporting measures 
previously required.

8



announced only one modest change in the timeframes. OCR simply 
moved 3 0 days from the negotiation period to the investigation 
period (notice attached hereto). It made no other changes. Thus, 
OCR has now unilaterally adopted the Adams timeframes as its own.

II. OCR'S REFUSAL TO APPLY ITS OWN HIGHER EDUCATION 
DESEGREGATION STANDARDS REQUIRES FURTHER COURT 
INTERVENTION
A. Procedural Posture of the Higher Education Claim

This appeal, as filed, did not include a challenge to the 
district court's actions on the higher education cause of action: 
the Consent Decree does not govern statewide higher education, and 
the Government did not appeal the district court's March 24, 1983 
higher education order.13

The Court has, however, raised two issues, addressed below, 
that directly affect the plaintiffs' ability to continue to pursue 
relief with respect to higher education: (question 1) the cause- of
action issue, and (question 4) the indispensable party issue.

B. Further Court Intervention Is Needed In Higher Education
Although the Government suggests that plaintiffs now seek to 

"enlarge this action" to include statewide higher education 
desegregation, Gov. Br. at 38, the second cause of action in the 
original complaint challenged OCR's default in higher education. JA 
185. Indeed, the district court has retained jurisdiction, and 
allowed plaintiffs to request further relief with the court finding 
at each critical stage in the higher education desegregation

13That Order acknowledged OCR's findings of widespread defaults 
by the states on their desegregation commitments and failures by 
some states to submit plans that in OCR's judgment were sufficient, 
and directed OCR to avoid further delay and either obtain renewed 
commitments or commence enforcement proceedings. JA 963-971.

9



process that OCR's actions violated its Title VI obligations.
First, in the early 1970's OCR failed to take enforcement 

steps when ten states virtually ignored its notices of 
noncompliance and requests for desegregation plans. Adams v . 
Richardson. 351 F. Supp. 636 (D.D.C. 1973), aff'd, 480 F.2d 1159
(D.C. Cir. 1973) (en banc). When the states finally submitted 
desegregation plans, OCR accepted them even though they failed to 
meet OCR's own standards for desegregation. Adams v. Califano, 430 
F. Supp. 118 (D.D.C. 1977). When the states defaulted on their
plans, OCR again failed to take action to correct the noncompliance 
or to refer the states for enforcement proceedings. Adams v . Bell. 
No. 3095-70 (D.D.C. Mar. 24, 1983); JA 963.

Finally, and most recently, OCR found eight states in 
compliance with Title VI and released them from further Title VI 
obligations by once again ignoring its own guidelines and standards 
for Title VI compliance.14 It is this latest and potentially 
devastating abdication of statutory duty that plaintiffs wish to 
challenge. Plaintiffs do not seek review of any individual state's 
compliance, but rather a finding that OCR failed to follow its own 
legal standards which would result in a remand to the Agency.

SUMMARY OF THE ARGUMENT
I. PLAINTIFFS HAVE A CAUSE OF ACTION UNDER THESE STATUTES

A. Plaintiffs have a cause of action under the Administrative 
Procedure Act (APA), 5 U.S.C. § 706(1), for agency action 
"unlawfully withheld or unreasonably delayed" with respect to the

14See Brief for Plaintiff-Appellants, Adams, et al., filed 
March 1989, (hereafter "Adams 1989 Appeal Brief"), at 7-11 for a 
more detailed review of the facts relating to higher education.

10



Government's systemic default in enforcing these civil rights laws. 
Heckler v. Chanev. 470 U.S. 821 (1985) does not bar these claims 
because it expressly distinguishes this case, and because its 
narrow presumption of nonreviewability for agency decisions not to 
enforce is inapplicable to court review of systemic unreasonable 
delay. Even if the Heckler presumption applies, it is rebutted 
here because there is "law to apply" by virtue of the regulations 
requiring "prompt" action under these statutes.

Plaintiffs do not have an adequate alternative remedy by way 
of private actions against fund recipients because such actions can 
never reach systemic default by the Government. See Greater Los 
Angeles Council on Deafness v. Baldrige, 827 F.2d 1353, 1362 (9th 
Cir. 1987). The Government's argument that the claim is foreclosed 
by Council of and for the Blind of Delaware County Valley, Inc, v. 
Regan. 709 F.2d 1521 (D.C. Cir. 1983) (mi banc) is unavailing 
because that case relied expressly on a "congressional judgment" 
that the statutory remedy against the fund recipient provided by 
the Revenue Sharing Act was adequate, and the Court expressly 
distinguished Title Vi's legislative history as having no similar 
"judgment." Id. at 1531 n.69. Moreover, two mi banc panels of 
this Court have approved this cause of action, thereby making it 
strong law of the case.

B. There is an implied private right of action under these 
statutes, which have the right or duty creating language —  "no 
person . . . shall . . .  be denied the benefits of" —  that is 
recognized by the Supreme Court as an accurate indicator of 
congressional intent to create private rights to sue. Cannon v. 
University of Chicago. 441 U.S. 677, 690 n.13 (1979). In Cannon,

11



which involved federal defendants, the Court specifically 
acknowledged the assumption that Title VI and Title IX created 
private rights of action, not only in actions against the fund 
recipient, but in actions against the Government. 441 U.S. at 696 
n.21, 702-03.

Congress affirmed this right in the same legislation that 
embodied Title IX. Section 718 of the Education Amendments of 1972 
provided for attorney's fees in suits against the Government under 
Title IX and Title VI. Congress expressly reaffirmed this right in 
1978 by providing remedies against a "Federal provider of such 
assistance" for violations of § 504. 29 U.S.C. § 794a(a)(2). The 
Court did not in footnote 51 of Cannon reject a private right of 
action against the Government in circumstances such as those here, 
or as in Cannon itself, which was aimed at eliminating a 
discriminatory condition. Instead it distinguished actions for 
fund termination as the only type for which the legislative history 
evidenced any hostility. 441 U.S. at 711.

C. Plaintiffs also have a cause of action under the 
Constitution. Brown v. Califano. 627 F.2d 1221 (D.C. Cir. 1980). 
II. THE COURT HAD AUTHORITY TO APPROVE THE TIMEFRAMES REMEDY

Plaintiffs satisfy the "rule of reason" test which this 
Circuit adopted to govern challenges to unwarranted agency delay, 
Telecommunications Research & Action Center v. FCC. 750 F.2d 70 
(D.C. Cir. 1984): 1) the Government's regulations require prompt 
action under the statutes; 2) the Government's decision not to 
appeal the initial timeframes order, its subsequent repeated 
consent, its major role in designing the timeframes, and current 
voluntary adoption of virtually these same time rules demonstrates

12



the reasonableness of the rules and that they comport with the 
Agency's own priorities for enforcement of the statutes; 3) 
because the statutes implicate the most important constitutional 
rights, delay is not to be countenanced; and 4) the rule does not 
require plaintiffs to show that the delay is caused by some 
underlying impropriety.

The timeframes remedy is consistent with Vermont Yankee 
Nuclear Power Coro, v. Natural Resources Defense Council., Inc., 
435 U.S. 519 (1978), because the rule of reason test balances 
concerns that an agency not be allowed to avoid its statutory 
mandate through inaction against any separation of powers concerns. 
Furthermore, the Government's role in designing the remedy and its 
consent to it necessarily mean that the Decree does not represent 
inappropriate judicial intrusion into the executive's affairs that 
might exist if the court directly issued the decree.
III. THE GOVERNMENT IS BOUND BY THE 1977 CONSENT DECREE

A. Courts routinely enforce consent decrees against successor 
administrations. The Government's argument that the Consent Decree 
is invalid because it represents a permanent removal of discretion 
from the Government is wrong. If the Government complies with the 
Decree for a reasonable period and the court finds that it is no 
longer needed to achieve its objectives, it can be vacated. Or, 
even absent compliance, if the Government can meet the applicable 
standard for modifying or vacating decrees, that relief can be 
granted. Strong public policy favors voluntary settlements, and 
unless the Government can fairly be held to its bargains, parties 
are not likely to enter into agreements with it.

13



B. The Government must satisfy the Supreme Court's standard 
in United States v. Swift & Co.. 286 U.S. 106, 119 (1932), of a
"clear showing of grievous wrong evoked by new and unforseen 
circumstances" to modify or vacate a consent decree. See Twelve 
John Does v. District of Columbia. 861 F.2d 295 (D.C. Cir. 1988). 
Regardless of whether Swift or some more relaxed court-adopted 
standard is applied, on the factual record here, the Government 
fails to meet any such standard. The Government has not shown a 
material change in the law, unpredictable change in circumstances, 
harm to the public, good faith attempts to comply, or that the 
decree is no longer necessary to accomplish its purposes.
IV. THE STATES ARE NOT INDISPENSABLE PARTIES

Plaintiffs seek the same type of higher education relief 
granted by the district court in 1977, a finding that OCR failed to 
apply its own legal standards, and approved by this Court en banc 
in Adams v. Bell. 711 F.2d 161. Such a finding would result in a 
remand to the Agency for a new determination of the states' 
compliance, not a substantive ruling by the court on Title VI 
compliance by any particular state. The states are free to secure 
full review of agency actions under 42 U.S.C. § 2000d-2. OCR,
having never previously requested joinder of the states, cannot 
assert that it will be subject to inconsistent obligations since 42 
U.S.C. § 2000d-5 establishes that a state's compliance with such a 
separate federal court order is deemed compliance with Title VI.

ARGUMENT
I. PLAINTIFFS HAVE A CAUSE OF ACTION AGAINST 

THE GOVERNMENT FOR ITS ILLEGAL CONDUCT
At Issue is whether plaintiffs have a cause of action for the

14



Government's 1) systemic delay and inaction in processing cases of 
discrimination while continuing funding, and 2) abandonment of 
Title VI enforcement in higher education by failing to apply its 
own legal standards.

A. PLAINTIFFS HAVE A CAUSE OF ACTION UNDER 
THE ADMINISTRATIVE PROCEDURE ACT
1. Heckler v. Chaney Is No Bar

Plaintiffs have a cause of action under § 706(1) of the APA, 
which authorizes judicial review of agency action "unlawfully 
withheld or unreasonably delayed." The Supreme Court has 
repeatedly emphasized the "strong presumption that Congress intends 
judicial review of administrative action."15 A "very narrow" 
exception to the presumption exists under § 701(a)(2) of the APA if 
the action is "committed to agency discretion by law."16 * In 
Heckler v. Chaney. 470 U.S. 821 (1985), the Court interpreted this 
exception, still recognizing its narrowness, but holding that a 
presumption of nonreviewability, rather than the general
presumption of reviewability, applies to an "agency's decision not 
to take enforcement action," id. at 831-32 (emphasis added). The 
Court opined that agency decisions to refuse enforcement were 
generally unsuitable for judicial review because of agency 
expertise in determining resource allocation, likelihood of 
success, and compatibility with overall enforcement policies. Id. 

a. The Heckler Presumption Is Inapplicable
The Heckler presumption of nonreviewability does not apply to

15Travnor v. Turnaqe. 485 U.S. 535, 542 (1988); accord Bowen 
v. Michigan Academy of Family Physicians. 467 U.S. 667, 670 (1986).

16Citizens to Preserve Overton Park v. Volpe. 401 U.S. 402, 410
(1971).

15



this case. First, Heckler itself distinguished Adams as 
appropriate for judicial intervention because of the Government's 
abdication of statutory duties. Id. at 833 n.4. This appeal 
involves that case, and plaintiffs are now seeking enforcement of 
the remedy directed to correct the statutory default. The 
Government seeks to avoid this distinction in Heckler by treating 
this case as a new action in which plaintiffs must prove the 
default all over again. Gov. Br. at 26-27.17 The Government's 
position is unpersuasive because the violation is established; 
plaintiffs are therefore entitled to a remedy to correct it.

Second, the Government's effort to limit the Heckler 
distinction to cases involving a "conscious and express policy," 
Gov. Br. at 25, does not comport with logic or reason because it 
would allow an agency to shield itself from judicial review for a 
wholesale pattern or practice of nonenforcement by simply not 
announcing that it planned to violate the law. Here plaintiffs 
have proven a pattern of nonenforcement tantamount to an abdication 
of statutory duty irrespective of express declarations,18 * and this 
Court has recognized that the mandatory enforcement obligations 
established in these civil rights statutes preclude discretion not 
to enforce. Adams v. Richardson. 480 F.2d 1159; Cutler v. Haves. 
818 F.2d 879, 892-93 (D.C. Cir. 1987).

17In making that argument the Government distorts note 5 of 
this Court's 1973 decision. Gov. Br. at 27. We have previously 
responded to that distortion. See Reply Brief for Plaintiff- 
Appellants, Adams, et al., filed April 1989, at 11-12.

18In the 1982 hearing the district court in fact found that 
agency officials expressed antipathy toward enforcing these 
statutes, infra at 45. See also Brief for Appellees in Nos. 83-
1590 and 83-1516, filed November 1983, at 37 n.* and 58.

16



Third, application of the presumption of nonreviewability to 
allegations of unreasonable delay, which Congress expressly 
established as judicially reviewable under § 706(1), would allow 
what is supposed to be a "narrow" exception in Heckler to swallow 
§ 706(1) by treating lassitude or antipathy as affirmative
decisions not to prosecute. Not only are they not the same thing 
(and therefore the rationale in Heckler is inapplicable to them), 
this Circuit has repeatedly reviewed allegations of unreasonable 
delay absent a declared policy of nonenforcement and either has 
expressly found Heckler inapplicable or, apparently believing it 
irrelevant, simply not addressed it.19

Fourth, OCR's wholesale default in higher education —  finding 
eight states in compliance with Title VI by ignoring its own legal 
standards —  is also wholly unlike a decision to forego enforcement 
action, for example, to save resources. As such, it does not fall 
within Heckler.20 *

Finally, because these actions also violate plaintiffs' 
constitutional rights under the Fifth Amendment, infra Section 
I.C., the Heckler presumption is inapplicable. See Heckler, 470 
U.S. at 838; id. at 839 (Brennan, J., concurring).

b. If the Presumption of Nonreviewability 
Is Applicable. It Is Rebutted.

If the Heckler presumption applies, it is rebutted here

19Cutler, 818 F.2d at 894-99; Public Citizen Health Research 
Group v. Brock. 823 F.2d 626 (D.C. Cir. 1987); Oil, Chem. & Atomic 
Workers Int'l Union v. Zeaeer. 768 F.2d 1480 (D.C. Cir. 1985); see 
also Farmworker Justice Fund, Inc, v. Brock, 811 F.2d 613, 623 n.10 
(D.C. Cir.), vacated as moot. 817 F.2d 890 (D.C. Cir. 1987).

20See International Union. United Auto. Workers v. Brock, 783 
F.2d 237, 245-46 (D.C. Cir. 1986) (distinguishing substantive
statutory interpretations from decisions not to enforce).

17



because the statutes and regulations "quite clearly withdrew 
discretion from the agency," 470 U.S. at 834, and are "drawn so 
that a court would have [a] meaningful standard against which to 
judge the agency's exercise of discretion." Id. at 830.21

The agency actions challenged —  inordinate delay and 
inaction while continuing funding of discriminating entities —  are 
different from typical enforcement actions where an agency 
prosecutes a wrongdoer for violating proscribed conduct. Here the 
agency is itself violating the law. In addition, Title VI, Title 
IX, Section 504 and Executive Order 11246 were designed to protect 
individuals against such wrongs, Cannon v. University of Chicago, 
441 U.S. 677, 690-93 & nn.13-14 (1979), a circumstance expressly 
distinguished in Heckler. 470 U.S. at 832. These laws operate as 
direct limits on an agency's ability to continue funding entities 
that engage in prohibited discrimination or to delay interminably 
in investigating circumstances that appear discriminatory. Adams v. 
Richardson. 480 F.2d at 1162-63; Cutler. 818 F.2d at 892-93.

Section 602 makes clear the mandatory nature of Title VI: 
"[e]ach . . . agency . . .  is authorized and directed to effectuate 
the provisions of section 2000d." 42 U.S.C. § 2000d-l (emphasis 
added).22 * * The statute's legislative history also evinces its 
mandatory nature. In its original form, Title VI made agency 
action discretionary. But after complaints that the bill was too

21For example, the Heckler Court distinguished Dunlop v. 
Bachowski. 421 U.S. 560 (1975), because the statute involved there 
required the agency "to file suit if certain 'clearly defined' 
factors were present." Heckler. 470 U.S. at 834.

22Both Title IX and Section 504 were modeled on Title VI and
incorporate and follow its remedial scheme. 20 U.S.C. § 1682; 29
U.S.C. § 794a(a)(2); and 34 C.F.R. §§ 104.61 and 106.71.

18



Sponsors of Title VIweak, agency action was made mandatory.23
emphasized this mandatory nature: "It would require agencies to act
to eliminate racial discrimination, rather than to leave the
matter, as now, to individual agency discretion.1,24

Moreover, the "regulations promulgated by an administrative
agency in carrying out its statutory mandate can provide standards
for judicial review of agency action."25 * The regulations governing
Title VI enforcement clearly circumscribe agency discretion with
respect to timeliness of action under § 602. Executive Order No.
12250, November 2, 1980, delegates authority to coordinate the
implementation of Title VI, Title IX, and § 504 to the Attorney
General, Exec. Order 12250 at § 1-101, and requires guidelines "for
establishing reasonable time limits," id. § 1-204.

The Attorney General's regulations, codified at 28 C.F.R. §§
42.401-415 and 28 C.F.R. § 50.3, require promptness:

efforts to secure voluntary compliance and the hearing 
and such subsequent procedures, if found necessary, 
should be conducted without delay and completed as soon 
as possible.

28 C.F.R. § 50.3.I.A (emphasis added).

23110 Cong. Rec. 6546 (1964)(remarks of Sen. Humphrey). See 
also Civil Rights —  The President's Program, 1963: Hearings Before 
the Senate Committee on the Judiciary on S. 1731 and S. 1750. 88th 
Cong., 1st Sess. 328, 333-34 (1963) (colloquy between Sen. Keating 
and Attorney General Kennedy).

24110 Cong. Rec. 7062 (1964) (remarks of Sen. Pastore) ; accord 
id. at 6544, 13931 (remarks of Sen. Humphrey).

25CC Distributors. Inc, v. United States. 883 F.2d 146, 154
(D.C. Cir. 1989); Safe Energy Coalition of Mich, v. United States 
Nuclear Regulatory Comm'n. 866 F.2d 1473, 1478 (D.C. Cir. 1989); 
Center for Auto Safety v. Dole. 846 F.2d 1532, 1534 (D.C. Cir. 
1988); see also Padula v. Webster. 822 F.2d 97 (D.C. Cir. 1987); 
Robbins v. Reagan. 780 F.2d 37 (D.C. Cir. 1985).

19



Effective enforcement of Title VI requires that agencies 
take prompt action. . . . Each agency shall establish
internal controls to avoid unnecessary delay in resolving 
noncompliance, and shall promptly notify the Assistant 
Attorney General of anv case in wh i ch negotiations have 
continued for more than sixty days.

28 C.F.R. § 42.411(a) (emphasis added). The Department of
Education's Title VI regulations also require "prompt
investigation.1,26

Prompt investigations and short-term negotiations are thus the 
benchmarks of agency enforcement procedures under these regulations 
—  delay is nowhere countenanced. Because there is "law to 
apply,"27 the Heckler presumption is rebutted.

2 . Section 704 of the APA Does Not Preclude Review 
Defendants' opposition to an APA cause of action relies almost 

exclusively on § 704 of the Act, which limits judicial review to 
"final agency action for which there is no other adequate remedy in 
a court." In Council of and for the Blind of Delaware County 
Valiev. Inc, v. Regan. 709 F.2d 1521, 1532 (D.C. Cir. 1983) fen
banc), this Court concluded that plaintiffs had an adequate —  
although not necessarily as effective —  remedy by virtue of a 
congressionally established procedure allowing individual action 
directly against fund recipients under the Revenue Sharing Act. In 
reaching this conclusion, the Court expressly relied on a 
congressional judgment that this statutory remedy for agency delay 
and inaction was adequate. "'Congress realized that the ORS might

2634 C.F.R. § 100.7(c) (emphasis added); accord Title IX
Regulations, 34 C.F.R. § 106.71; Section 504 Regulations, 34 C.F.R. 
§ 104.61; Exec. Order 11246 Regulations, 41 C.F.R. § 60-1.24(d).

27See also Section II, infra, (court-made rule of reason 
governing agency delay).

20



not be able to adhere to this timetable,' and it chose to give the
complainant the right to initiate an action under section 124 when
the time for agency action has expired." Id, at 1532 n,75,
Significantly, Council of and for the Blind and Adams v. Bell were
both argued on the same day, decided on the same day, and written
by Judge Wilkey on behalf of the en banc Court. Fully cognizant of
Adams, the Court distinguished it:

Adams is distinguishable. First, the legislative history 
behind the statute involved in Adams (Title VI of the 
Civil Rights Act) was different from that in the present 
case. Unlike the Revenue Sharing Act, Title VI was not 
designed as a "no strings" grant scheme. There was, 
therefore, not the same congressional emphasis on 
limiting the size of the funding agency's staff. Second, 
Congress did not expressly provide a remedy for the 
agency's failure to enforce the nondiscrimination 
provision of Title VI. Accordingly, in Adams we were not 
facing a situation in which Congress had already 
indicated how it wanted private discrimination suits to 
be structured. In the present situation Congress has 
expressly provided a remedy; one directed primarily 
toward the local government, not the ORS.

Id. at 1531 n.69 (emphasis added).
This distinction of Adams is key because the basis for the

Court's ruling on the adeguacv of the alternative remedy in Council
of and for the Blind was congressional intent. "We defer to the
congressional judgment that the section 124 remedy is adequate."
Id. at 1532 n.75. Although the Government attempts to disregard
the Court's distinction, Gov. Br. at 13 n.3, the question with
respect to the underlying congressional intent raised in Council of
and for the Blind was identical for the APA claim and the implied
cause of action claim under Title VI, and this Court's express
finding of a different congressional judgment under Title VI than

21



Councilunder the Revenue Sharing Act applies with equal force.28 
of and for the Blind, therefore, cannot be read as a rejection of 
plaintiffs' cause of action in Adams.

It is also clear that the systemic default about which 
plaintiffs complain cannot be addressed through individual actions. 
Regardless of how many lawsuits plaintiffs file against fund 
recipients, disposition of those actions cannot cure the systemic 
default by the Government.29

28Regarding Executive Order 11246, the Government similarly 
relies on cases under a different statute, Title VII, which find no 
cause of action against the EEOC for failure to prosecute a Title 
VII claim. Gov. Br. at 20-21. While the Supreme Court has not 
addressed the issue whether the Executive Order creates a private 
right of action, the weight of authority is to the contrary. In 
fact, a number of cases hold that the federal government has the 
exclusive enforcement authority for the Executive Order. See. 
e.q.. Utlev v. Varian Associates. Inc.. 811 F.2d 1279, 1285-86 (9th 
Cir.) (no adequate remedy except to sue the agency), cert, denied. 
484 U.S. 824 (1387). The Government's reliance on Title VII cases 
is an attempt to avoid the fact that there is no other adequate 
remedy for the rights protected by the Executive Order. Title VII 
cases are distinguishable because, like Council of and for the 
Blind. they rest on a conclusion that Title VII's regulatory scheme 
provides an adequate remedy because it was established by Congress 
in express contemplation of agency inaction or unsatisfactory 
resolution of a charge. See Occidental Life Ins. Co. v. EEOC. 432 
U.S. 355, 365-66 (1977); Hall v. EEOC. 456 F. Supp. 695, 701 (N.D. 
Cal. 1978). No similar history exists for Title VI, Title IX, 
Section 504, or the Executive Order, where, unlike Title VII, 
federal funding is involved.

29See Greater Los Angeles Council on Deafness. Inc, v. 
Baldriae. 827 F.2d 1353, 1362 (9th Cir. 1987) ("Plaintiffs are 
attempting to force the Department to comply with the statute and 
its own regulations. This goal cannot be achieved by a suit 
against [the recipient]."); Garrett v. Bamford, 538 F.2d 63, 71 (3d 
Cir.) ("Where legal remedies require multiple suits involving 
identical issues against the same defendant, federal equity 
practice has recognized the inadequacy of the legal remedy and has 
provided a forum."), cert, denied. 429 U.S. 977 (1976); Marlow v. 
U.S. Dept, of Educ. . 820 F.2d 581 (2d Cir. 1987) (distinguishing 
Adams on ground that it did not involve an individual agency 
decision), cert, denied, 484 U.S. 1044 (1988) ; Salvador v. Bennett. 
800 F.2d 97, 99-100 (7th Cir. 1986) (distinguishing Adams as a 
"programmatic" rather than "individual" case and recognizing that

(continued...)
22



3. The Lav of This Case Upholds 
Plaintiffs' APA Cause of Action

The law of this case, established by the en banc Court in 
1973, permits this cause of action under the APA. Adams v . 
Richardson. 480 F.2d 1159. In 1983 another en banc panel of this 
Court again approved judicial review of these claims. Adams v . 
Bell. 711 F. 2d 161, 165-66 (D.C. Cir. 1983) (en banc) (approving 
decrees designed to "correct systemic defalcations").

The Government does not ask this panel to reconsider those 
conclusions. Gov. Br. at 23 & n.18. Instead it asks the Court to 
find that two en banc panels 1) failed to notice a major section of 
the APA —  § 704 —  in approving judicial review, and 2) were not 
aware of private rights of action against fund recipients under 
Title VI. Both suggestions are fanciful in light of the facts.

In 1973, the Government's brief, in urging that this cause of 
action was not needed, argued that an alternative remedy was 
available via suits against fund recipients: "Congress was well 
aware that if an agency were not properly enforcing its Title VI 
responsibilities an individual aggrieved . . . would have a cause 
of action against the persons who were discriminating against 
him."30 Contrary to the Government's assumption, Gov. Br. at 22,

29 (. . . continued)
in Adams "but for the review at hand, there would be no other way 
to enforce Title VI") ; Legal Aid Society of Alameda County v. 
Brennan. 608 F.2d 1319 (9th Cir. 1979) (mandamus relief was 
appropriate for action brought under Executive Order to force the 
Government to comply), cert, denied. 447 U.S. 921 (1980).

30Reply Brief for the Appellants, Adams v. Richardson. No. 73- 
1273 at 6-7. See also Cannon. 441 U.S. at 702-03 (recognizing an 
assumption by courts in 1972 of a Title VI private right of 
action).

23



that the § 704 issue was one that merely "could" have been decided; 
it is a question that necessarily was decided.

In 1983,' the existence of a remedy against a fund recipient 
was again clear, and it cannot be said that the Court did not 
recognize the parallels between Adams v. Bell and Council of and 
for the Blind, which were handled in tandem. Rather than 
overlooking the § 704 issue, the Court distinguished Adams.
Approval of this cause of action under the APA by two en banc 
panels of this Court makes it clear law of the case —  not subject 
to relitigation.

B. PLAINTIFFS HAVE AN IMPLIED CAUSE OF ACTION AGAINST 
THE FUNDING AGENCIES

In determining whether to infer a private cause of action from 
a federal statute, courts have followed the four-part test set out 
in Cort v. Ash. 422 U.S. 66, 78 (1975). While the focal point of 
the examination is congressional intent, the test serves as "guides 
to discerning that intent." Thompson v. Thompson. 484 U.S. 174, 
178 (1988) . The factors are: 1) whether the statute creates a
federal right in favor of the plaintiff, 2) whether there is 
legislative intent, explicit or implicit, to create or deny a 
remedy, 3) whether implication of a remedy would be consistent with 
the underlying purpose of the legislation, and 4) whether the 
action is one traditionally relegated to state law. Cort, 422 U.S. 
at 78. In Thompson. the Court recently reaffirmed that in 
inferring such a cause of action, "it is not necessary to show an 
intention to create a private cause of action, although an explicit

24



purpose to deny such cause of action would be controlling.1,31
We note at the outset that this Circuit and others have 

recognized an implied cause of action against federal defendants 
based on Title VI.32 Following the Cort analysis, it is clear that 
plaintiffs satisfy parts one and four of the test.33 Parts two and 
three, regarding congressional intent and consistency with 
legislative purpose, will be addressed below seriatim.

1. Congressional Intent
While these civil rights statutes were adopted at different 

times, divining congressional intent is made much easier by the 
fact that they all follow the same pattern and remedial scheme.34

31Thompson. 484 U.S. at 178 (emphasis in original) ; accord 
NAACP v. Medical Center. Inc. . 599 F.2d 1247, 1253 (3d Cir.
1979) ("[FJailure to include an explicit provision for a private 
action, without more, is not enough to make out controlling 
legislative intent to deny a private right.").

32See Council of and for the Blind. 709 F.2d at 1531 n.69; 
National Black Police Ass'n. v. Velde. 631 F.2d 784 (D.C. Cir.
1980) , vacated on other grounds. 458 U.S. 591 (1982), on remand.
712 F.2d 569 (D.C. Cir. 1983), cert, denied, 466 U.S. 963 (1984)
(opinion reinstated on remand with respect to this issue at 712 
F.2d at 572 n.3); Brown v. Califano. 627 F.2d 1221, 1233 n.73 (D.C. 
Cir. 1980) ; accord Montgomery Improvement Ass'n, Inc, v. United 
States Dep't of Hous. and Urban Dev.. 645 F.2d 291 (5th Cir. 1981) ; 
Garrett v. City of Hamtramck. 503 F.2d 1236 (6th Cir. 1974); 
Gautreaux v . Romney. 448 F.2d 731 (7th Cir. 1971), later appeal 
Gautreaux v. Chicago Hous. Auth. . 503 F.2d 930 (7th Cir. 1974), 
aff'd sub nom.. Hills v. Gautreaux. 425 U.S. 284 (1976); Shannon v. 
United States Dep't of Hous. and Urban Dev.. 436 F.2d 809 (3d Cir. 
1970); Little Earth of United Tribes v. Department of Hous.. 584 F. 
Supp. 1292 (D. Minn. 1983) ; Young v. Pierce, 544 F. Supp. 1010
(E.D. Tex. 1982); Southern Christian Leadership Conference, Inc, v. 
Connolly. 331 F. Supp. 940 (E.D. Mich. 1971).

33Cannon, 441 U.S. at 693-94, 708; see also Adams Appellants' 
1989 brief at 23-31.

34During the period when Title VI was enacted, Congress largely 
tended to rely on the courts to decide whether there should be a 
private right of action. Cannon. 441 U.S. at 718 (Rehnquist J.
concurring). Cannon itself evidences that this posture is no bar 
to inferring a cause of action.

25



Section 504 was patterned after, and is almost identical 
to, the anti-discrimination language of Section 601 of 
the Civil Rights Act of 1964 . . . and Section 901 of the 
Education Amendments of 1972.35
Enforcement of [Title IX] will draw heavily on these 
precedents [under the Civil Rights Act of 1964].36
The language of the statute itself is an important indication

of congressional intent to create private rights. Cannon, 441 U.S.
at 690. In Allen v. State Board of Elections. 393 U.S. 544, 554-55
(1969), it was language in the Voting Rights Act, which is similar
to that of Title VI,37 which persuaded the Court that Congress
implicitly authorized a private remedy. Cannon. 441 U.S. at 690.
When Title VI was revised to respond to objections that it did not
authorize a private remedy, id. at n.14, the new language was the
right or duty creating language which "has generally been the most
accurate indicator of the propriety of implication of a cause of
action." Id. at 690 n.13 (cases cited therein). Cannon, whose
defendants included federal officials, was an effort to eliminate
a particular form of discrimination. There the Court found nothing
in the legislative history of Title VI that "evidences any
hostility toward an implied private remedy to terminate the
offending discrimination," id. at 711, distinguishing separately
only actions for fund termination. Id.

^Rehabilitation Act Amendments of 1974. S. Rep. No. 93-1297, 
93d Cong., 2d Sess. 39-40 (1974), reprinted in 1974 U.S. Code Cong. 
& Admin. News 6373, 6390-91. See also 124 Cong. Rec. 30349 (1978) 
(remarks of Senators Bayh and Cranston).

36118 Cong. Rec. 18437 (1972) (remarks of Sen. Bayh).
37Section 5 of the Voting Rights Act provides that "no person 

shall be denied the right to vote," 42 U.S.C. § 1973c. Title VI 
provides that "[n]o person . . . shall . . .  be denied . . . the 
benefits of . . . ." 42 U.S.C. § 2000d.

26



Congress explicitly affirmed that the federal Government could
be sued under these statutes. In the same legislation that
embodied Title IX, Congress authorized attorney's fees against the
United States in actions under Title VI and Title IX. Section 718
of the Education Amendments of 1972 provided:

Upon the entry of a final order . . . against a local
educational agency, a State (or any agency thereof) or 
the United States for anv agency thereof) for failure to 
comply with any provision of this title or for . . . 
violation of title VI . the court, . . . upon a
finding that the proceedings were necessary to bring 
about compliance, may allow the prevailing party, other 
than the United States, a reasonable attorney's fee.38

Congress clearly intended that the Government could be sued:
Mr. PELL. [C]an an individual sue the Federal

Government?
Mr. COOK. Under this title?
Mr. PELL. Yes.
Mr. COOK. Oh yes.39
Further, as the Supreme Court stated in Cannon. there is

evidence that Congress has since the passage of Title VI in 1964
"acquiesce[d] in, and apparently affirms a private cause of
action.1,40

3886 Stat. 369 (previously codified in 20 U.S.C. § 1617) 
(emphasis added). This section was repealed in the Omnibus Budget 
Reconciliation Act of 1981, Pub. L. 97-35, 95 Stat. 357 (1981). It 
was then redundant with the Civil Rights Attorney's Fees Act, 42 
U.S.C. § 1988, which specifically recognized this litigation as 
within the scope of the Act, see The Civil Rights Attorney's Fees 
Award Act of 1976. H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 5 
(1976)(identifying Adams v. Richardson. 480 F.2d 1159 (D.C. Cir. 
1973) and Hills v. Gautreaux. 425 U.S. 284 (1976) [federal 
defendants] as cases within the scope of the bill), and the Equal 
Access to Justice Act, 28 U.S.C. § 2412.

39117 Cong. Rec. 11522 (1971); accord id. at 11725 (remarks of 
Sen. Cook); id. at 11338 (remarks of Sen. Dominick). 40 *

40See Bob Jones Univ. v. United States. 461 U.S. 574, 599-602
(1983) (congressional acquiescence as basis for statutory 
interpretation).

27



[T]he very persistence —  before 1972 and since, among 
judges and executive officials, and even implicit in 
decisions of this [Supreme] Court —  of the assumption 
that both Title VI and Title IX created a private right 
of action for the victims of illegal discrimination and 
the absence of legislative action to change that 
assumption provide further evidence that Congress at 
least acguiesces in, and apparently affirms, that 
assumption.

Cannon. 441 U.S. at 702-03. That would include a private right of 
action against the Government, for as the Supreme Court in Cannon 
also recognized:

[P]rivate plaintiffs successfully sued officials of the 
Federal Government under Title VI . . . [in] Gautreaux v. 
Romney. 448 F2d 731, 737-740 (CA7 1971) , later appeal,
Gautreaux v. Chicago Housing Authority. 503 F.2d 930 (CA7 
1974) , aff'd sub nom Hills v. Gautreaux. 425 US 284 
[1976]; Shannon v. HUD. 436 F2d 809, 820 (CA3 1970)
. . . Southern Christian Leadership Conference. Inc, v.
Connolly. [331 F. Supp. 940, at 943-45] . . . , Hicks v.
Weaver. 302 F Supp 619, 622-623 (ED La 1969) .41

Id. at 696 n. 21.42 * * *
This conclusion is bolstered by Congress's express approval in

1978 of a private cause of action against the federal Government
under § 504. The remedies section provides:

The remedies, procedures, and rights set forth in title 
VI of the Civil Rights Act of 1964 shall be available to 
any person aggrieved by any act or failure to act by any 
. . . Federal provider of such assistance.

29 U.S.C. § 794a(a) (2) (emphasis added) . The grant of a remedy
against a "Federal provider of such assistance" establishes

41Cannon identified Gautreaux as a case where the Court had 
assumed an implied cause of action against the Government under 
Title VI. 441 U.S. at 702-03 & n.33.

42Following this same pattern recently in a case against the
Veterans' Administration,, the Court assumed the existence of a
cause of action against the Government under Section 504. Travnor
v. Turnaae. 485 U.S. 535 (1988).

28



conclusively that the Government can be sued for the type of 
activity challenged here.43

The Government urges the Court that there is no implied
private right of action under these statutes.44 It relies on
language in footnote 51 of Cannon regarding the "administration's
failure to include an express remedy in its final proposed bill."
Gov. Br. at 18. The Court, in admitted speculation, stated that
the administration's proposed bill "appears to have been a
compromise aimed at protecting individual rights without subjecting
the Government to suits."45 Cannon. 441 U.S. at 715 (emphasis
added). Footnote 51 states:

There is a plausible reason for this compromise. In its 
final form, § 601 was far more conducive to implication 
of a private remedy against a discriminatory recipient 
than was the original language,46 but at the same time 
was arguably less conducive to implication of a private 
remedy against the Government (as well as the recipient) 
to compel the cutoff of funds. Although willing to 
extend private rights against discriminatory recipients, 
the Government may not have been anxious to encourage 
suits against itself.

Id. at 716 n.51 (emphasis added).

43See Cousins v. Secretary of the Dep't of Transp., 880 F.2d 
603, 605 (1st Cir. 1989) (en banc).

44The Government cites Marlow v. Dept, of Educ., 820 F.2d 581 
(2d Cir. 1987), cert, denied. 484 U.S. 1044 (1988) and Salvador v. 
Bennett. 800 F.2d 97 (7th Cir. 1986), for the proposition that 
there is no implied private right of action. But neither case 
follows the Cort analysis or undertakes a close examination of the 
key issue —  congressional intent.

45The express remedy proposal was not offered to Congress as 
a bill or amendment, but to the Justice Department when the agency 
was revising its own proposal. Of course, the administration's 
failure to include Senator Keating's language in its proposal does 
not indicate that Congress intended to shield the Government from 
suits, especially in view of Title Vi's mandatory obligations.

46The original language of Title VI, see 441 U.S. at n.14, was 
not conducive to implication of a private remedy of any sort.

29



The footnote expressly focuses on the implication of a right
of action against the Government only "to compel the cutoff of
funds." Id. It did not, even by implication, reject actions like
Gautreaux47 and Cannon. designed to end a specific discriminatory
practice, id. at 711; or Young v. Pierce. 544 F. Supp. 1010 (E.D.
Tex. 1982), challenging discrimination in the manner in which the
Government distributes funds;48 or this case designed to ensure
that the Government take preliminary enforcement steps required in
§ 602 that often induce compliance without the need for fund
termination. Since this case involves all of these purposes,
footnote 51 provides no reason to deny a cause of action.

A final point about footnote 51, which the Government masks by
an ellipsis omitting the key words, Gov. Br. at 18 (line 24) , is
that the Court placed the fund "recipient" and the Government on
precisely the same footing regarding the assumed compromise:

[Title VI in its final form was] arguably less conducive 
to implication of a private remedy against the Government 
(as well as the recipients."

441 U.S. n.51 (emphasis added). When these words are read together 
with Cannon's holding that Title VI provides a cause of action 
against the fund recipient, it is clear that the Court was not 
rejecting a cause of action of the type presented here.

47The Court cites Gautreaux approvingly. 441 U.S. at n.21.
48Cf. NAACP v. Medical Center. Inc.. 599 F.2d 1247, 1259 (3d 

Cir. 1979) . The court found no cause of action exists against the 
Government for fund termination, but "a private cause of action is 
implicit in section 601 of Title VI and section 504 of the 
Rehabilitation Act of 1973 for plaintiffs who seek declaratory and 
injunctive relief." The court reserved the issue whether 
plaintiffs "have the right to seek judicial review of HEW's 
determination that [the plan] complies with Title VI and section 
504. We do not foreclose that right." Id. at 1250 n.10.

30



The remaining argument raised by the Government, that the 
doctrine of sovereign immunity bars plaintiffs' claims, Gov. Br. at 
1 7 , provides no reason for the Court to pause. It has beer-
rejected by six Circuit Courts of Appeals, including this one, on 
the ground that § 702 of the APA constitutes a broad waiver of 
sovereign immunity for all claims for non-monetary relief arising 
under 28 U.S.C. § 1331.49

2. An Implied Cause Of Action Against the
Aaencv To Require Compliance Is Entirely 
Consistent With the Statutory Scheme.

Cannon addressed this part of the Cort test by focusing on 
whether the "remedy is necessary or at least helpful to the 
accomplishment of the statutory purpose." 441 U.S. at 703. 
Effective enforcement of Title VI is a critical part of the 
legislative scheme. Implied private rights of action against 
discriminating entities are one prong of the enforcement scheme. 
But the primary means of enforcement contemplated by Congress — and 
the only one set forth in Title VI itself —  is enforcement by the 
federal funding agencies as mandated by § 602. Allowing a cause of 
action to induce an agency's compliance with its statutory mandate 
ensures that federal agencies will not abdicate their

49See The Presbyterian Church fU.S.A.) v. United States, 870 
F. 2d 518, 524-25 (9th Cir. 1989); Dronenburq v. Zech, 741 F.2d 
1388, 1390-91 (D.C. Cir. 1984); B.K. Instrument, Inc, v. United 
States. 715 F.2d 713, 724 (2d Cir. 1983); Warin v. Director, Pep't 
of the Treasury. 672 F.2d 590, 591-92 (6th Cir. 1982) (per curiam); 
Schnapper v. Folev. 667 F.2d 102, 107-08 (D.C. Cir. 1981), cert, 
denied. 455 U.S. 948 (1982); Sheehan v. Army & Air Force Exchange 
Serv.. 619 F.2d 1132, 1139 (5th Cir. 1980), rev1d on other grounds, 
456 U.S. 728 (1982); Beller v. Middendorf. 632 F.2d 788, 796-97 
(9th Cir.), cert, denied. 452 U.S. 905 (1980); Jaffee v. United 
States. 592 F.2d 712, 718-19 (3d Cir.), cert, denied, 441 U.S. 961 
(1979) .

31



responsibilities. Such relief cannot be obtained in a suit against 
a fund recipient.

C. A CAUSE OF ACTION EXISTS UNDER THE CONSTITUTION
"The Constitution's prohibition against governmental support 

of schools practicing invidious discrimination is . . . obvious and 
well-established." Brown v. Califano, 627 F.2d 1221, 1235 & n.84 
(D.C. Cir. 1980) (cases cited therein).50 Plaintiffs have a cause 
of action under the Constitution to enforce this prohibition.51
II. THE TIMEFRAMES ORDERS ARE A PROPER

EXERCISE OF JUDICIAL AUTHORITY
It is a complete answer to the Court's question regarding the 

district court's authority to issue these orders that the 
Government largely designed these rules and repeatedly consented to 
them. See pp. 5-6 supra and Section III infra. In the factual 
context of this case, the issue is specifically framed: where
plaintiffs have shown that an agency has a practice of pervasive 
delay and inaction tantamount to abdication of mandatory statutory 
duties; where the court orders a remedy that is designed in large 
part by the agency and to which it consents; but where the agency 
never complies with that order; can the court maintain its order 
until the non-compliance is corrected?

A. THE "RULE OF REASON” AUTHORIZES THE
REMEDIAL ORDERS ENTERED IN THIS CASE.

The prevailing precedent in this Circuit regarding a court's 
ability to compel agency action "unreasonably delayed" is set out

50See Adams Appellants 1989 brief at 36-38.
51Plaintiffs and intervenors also have a cause of action under 

28 U.S.C. § 1361 (Mandamus Act).
32



in Telecommunications Research and Action Center v. F.C.C., 750
F.2d 70 (D.C. Cir. 1984):

(1) the time agencies take to make decisions must be 
governed by a 'rule of reason,' (2) where Congress has
provided a timetable or other indication of the speed 
with which it expects the agency to proceed in the 
enabling statute, that statutory scheme may supply 
content for this rule of reason, (3) delays that might be 
reasonable in the sphere of economic regulation are less 
tolerable when human health and welfare are at stake, (4) 
the court should consider the effect of expediting 
delayed action on agency activities of a higher or 
competing priority, (5) the court should also take into 
account the nature and extent of the interest prejudiced 
by delay, and (6) the court need not find any impropriety 
lurking behind agency lassitude in order to hold that 
agency action is 'unreasonably delayed.'

Id. at 80 (citations omitted). The rule of reason is a deferential
one. It takes into account the separation of powers doctrine and
reflects the concerns expressed in Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council. Inc., 435 U.S. 519
(1978), that agencies be afforded significant latitude and
deference in structuring their own procedures. Against this
consideration, however, the rule balances the concern that agencies
not be allowed to thwart the will of Congress and circumvent
statutory mandates.52

The Government argues that the Consent Decree violates the 
Vermont Yankee principle. Gov. Br. at 24-25. It does not. There, 
the Supreme Court overturned a court of appeals ruling that the 
agency's rulemaking procedures were inadeguate, holding that in the 
APA Congress had set out the minimum procedures reguired and the

52The Constitution establishes a system of checks and balances, 
not three branches of government that operate with absolute
independence. See Morrison v. Olson. 487 U.S. __, 101 L. Ed. 2d
569, 607 (1988); Bucklev v. Valeo. 424 U.S. 1, 122-23 (1976); Nixon 
v. Administrator of General Services. 433 U.S. 425, 442 (1977);
United States v. Nixon. 418 U.S. 683, 707 (1974).

33



agency had not only satisfied those requirements but had provided 
additional procedures.

The critical difference is that, unlike Vermont Yankee where 
the statute effectively created a ceiling on procedures a court 
could order, Congress here relied on the courts to develop rules to 
counter agency delay and inaction. The APA specifically authorizes 
judicial review to correct "unreasonable delay," 5 U.S.C. § 706. 
To prohibit agency delay, Congress necessarily contemplated that 
courts would impose deadlines on agency actions and monitor 
compliance with those deadlines.53 * * Such judicial remedies are 
especially appropriate where Congress has placed a mandatory duty 
on agencies to take action, as it has in these statutes.

That these orders are consistent with Vermont Yankee is also 
clear from this Court's ruling in Citizens for a Better Environment 
v. Gorsuch. 718 F.2d 1117 (D.C. Cir. 1983), cert, denied, 467 U.S. 
1219 (1984) :

Since the solution arrived at was to a considerable 
extent the work of the Agency itself, and since the 
district court's role was confined to approving the 
fairness of the consent decree which incorporates it and 
ensuring the consistency of the Decree with the Act, 
Vermont Yankee's concern for "judicially conceived 
notions of administrative fair play" is inapposite here.

Id. at 1128. This language precisely describes this case: the

53Heckler v. Day. 467 U.S. 104 (1984) is easily distinguished. 
There Congress had deliberately declined to impose deadlines on the 
processing of disability claims on the ground that a multiple
review process without specific time limits was preferable. The
Court concluded that it would be an unwarranted intrusion for it to 
approve deadlines in the face of unmistakable congressional intent 
not to do so. No legislative history suggests that Congress viewed 
the processes at issue here similarly. In Re Am. Fed'n of Gov't 
Employees. 837 F.2d 503, 506 (D.C. Cir. 1988) is similarly 
distinguishable because of congressional intent.

34



Government largely designed the Decree, JA 825, consented to the 
timeframes in 1976 and 1977, and now has unilaterally adopted 
almost the same time rules for its cases.54 Therefore, the Decree 
does not "represent judicial intrusion into the Agency's affairs to 
the same extent [it] would if the Decree 'were a creature of 
judicial cloth.'" Id. (quoting Weinberger v. Catholic Action of 
Hawaii/Peace Education Project. 454 U.S. 139, 141 (1981)).

Here, the Government's regulations require "prompt" compliance 
with the procedures set out in § 602, supra at 19-20. The fact 
that the Government did not appeal the initial timeframes order, 
twice consented to the timeframes, and now voluntarily continues to 
apply them with one minor modification, also demonstrates that the 
timeframes themselves are reasonable, comport with the Agency's 
own view of proper case processing, and do not conflict with its 
other obligations.55

Second, because the statutes and regulations at issue 
implicate the most important Constitutional rights56 —  unlike

54The agreement serves as the source of the court's authority 
to enter any judgment and statutory limitations on a court's power 
to impose remedies directly do not apply. Local Number 93 v. City 
of Cleveland. 478 U.S. 501, 522-23 (1986) (in approving a consent 
decree, a court is not limited to terms that it could have ordered 
after a trial); Accord In Re Agent Orange Product Liability 
Litigation. 818 F.2d 179, 185 (2d Cir.), cert, denied, 108 S. Ct. 
2899 (1987); Badglev v. Santacroce, 800 F.2d 33, 38 n.3 (2d Cir. 
1986), cert, denied. 479 U.S. 1067 (1987); cf. Citizens for a 
Better Environment. 718 F.2d at 1130-36 (Wilkey, J. , dissenting) 
(views expressed in the dissent preceded Local Number 93).

55In hyperbole by counsel, diverging from the position of OCR 
evidenced by its voluntary adoption of the procedures as its own, 
the Government argues that the orders are "inconsistent with the 
efficient administration of civil rights laws," Gov. Br. at 3, and 
that "the allocation of resources under this decree is against the 
public interest." Id. at 42.

56Brown v. Califano. 627 F.2d 1221, 1235 (D.C. Cir. 1980).
35



economic regulation —  delay is certainly not to be tolerated.57
Third, the Government's argument that the Court can only 

address protracted agency action resulting from a "conscious and 
express policy abdicating enforcement responsibility," Gov. Br. at 
25, has been rejected by this Circuit in part six of the "rule of 
reason" test. Telecommunications. 750 F.2d at 80.

Finally, this Court and others have routinely ordered 
timeframes to correct agency delay and inaction or indicated their 
willingness to do so, and have ordered monitoring and reporting.58

57See Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 
(1969) (desegregation required "at once").

58See Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C.
Cir. 1988)(court ordered schedule for agency action); Cutler v. 
Haves. 818 F.2d 879, 899 n.169 (D.C. Cir. 1987) ("The District
Court may find it appropriate . . .  to impose a binding timetable 
upon FDA."); Public Citizen Health Research Group v. Brock. 823 
F. 2d 626, 629 (D.C. Cir. 1987) (ordering agency to adhere to 
schedule and to submit reports every 90 days); United Steelworkers 
of Am. v. Pendergrass. 819 F.2d 1263, 1270 (3d Cir. 1987) (ordering 
OSHA to issue standard within 60 days); International Union, United 
Auto. Aerospace & Aaric. Implement Workers v. Donovan. 756 F.2d 
162, 165 (D.C. Cir. 1985) (The Court "will look with extreme 
displeasure on any variance from the schedule [agency ordered to 
submit] and will not hesitate to set a date certain for completion 
. . . if the [respondents] unreasonably delay.");
Telecommunications v. FCC. 750 F.2d at 81 & n.43 (agency directed 
to set deadline and report to court every 60 days); Airline Pilots 
Ass'n. Int'l v. Civil Aeronautics Bd.. 750 F.2d 81, 87 (D.C. Cir. 
1984) (reports every 30 days ordered by the court); Public Citizen 
Health Research Group v. Auchter. 702 F.2d 1150, 1154 n.12 (D.C.
Cir. 1983) (per curiam) (agency ordered to complete rulemaking 
proceedings within a year); Potomac Elec. Power Co. v. ICC. 702 
F. 2d 1026, 1035-37 (D.C. Cir. 1983) (agency initially ordered to act 
within 60 days but order subsequently modified in light of new 
substantive standards issued shortly before court's order); MCI 
Telecommunications Corp. v. FCC. 627 F.2d 322 (D.C. Cir. 1980)
(judicially supervised schedule for agency action was necessary, 
and court ordered submission of a schedule for approval and 
retained jurisdiction to assure compliance); Nader v. FCC. 520 F.2d 
182, 207 (D.C. Cir. 1975) (agency given 30 days to submit a
schedule for action); Common Cause v. F.E.C.. 692 F. Supp. 1397, 
1401 (D.D.C. 1988)(court retained jurisdiction and required
progress reports every 90 days); Drake v. Pierce. 691 F. Supp. 264,

(continued...)
36



III. THE GOVERNMENT IS BOUND BY THE 1977 CONSENT DECREE
A. CURRENT GOVERNMENT OFFICIALS ARE BOUND BY

CONSENT DECREES ENTERED BY THEIR PREDECESSORS
1. Courts Routinely Enforce Consent Decrees

Against Subsequent Administrations
Courts find no impediment to binding successor government

administrations to consent decrees entered into by their
predecessors, and routinely enforce such decrees over substantial
periods of time until compliance is achieved. In Berger v.
Heckler. 771 F.2d 1556, 1568 (2d Cir. 1985), for example, the Court
directed the Secretary of Health and Human Services to adhere, over
her objections, to a 1978 consent decree entered by a previous
administration, stating:

[a] defendant who has obtained the benefits of a consent 
decree —  not the least of which is the termination of 
the litigation —  cannot then be permitted to ignore such 
affirmative obligations as were imposed by the decree.
Similarly, Alliance to End Repression v. City of Chicago, 742

F. 2d 1007, 1018 (7th Cir. 1984) held that a Justice Department
consent decree entered into by one administration in 1980 was
enforceable against the subsequent administration despite its new
policy preferences. See Pyramid Lake Tribe of Indians v. Hodel.
878 F. 2d 1215 (9th Cir. 1989) (1973 decree); Williams v. Lesiak.
822 F.2d 1223 (1st Cir. 1987) (1974 and 1975 decrees)? Ferrell v.
Pierce. 743 F.2d 454 (7th Cir. 1984) (1976 decree); Dotson v. HUD,
731 F. 2d 313 (6th Cir. 1984) (1977 and 1980 decrees).59

58 (. . . continued)
272 (W.D. Wash. 1988)(timetables established due to Agency's
history of delay).

59See also Newman v. Graddick. 740 F.2d 1513, 1517-18 (11th
Cir. 1984) (enforcing consent decree against subsequent 
administration in reliance on Fed. R. Civ. P. 25(d) which permits

(continued...)



The Government does not directly argue that predecessor 
administrations are incapable of binding their successors; nor does 
it address the consistent line of authority set out above. Rather, 
it mischaracterizes the 1977 Consent Decree as one that can never 
be modified or vacated, and as such one to which consent could not 
have validly been given. Gov. Br. at 44. Secondly, the Government 
argues that continued enforcement of the Consent Decree is contrary 
to congressional intent because Title VI requires Presidential 
approval of implementing regulations. Gov. Br. at 47.

Both arguments are flawed. First, the 1977 Consent Decree 
represents no permanent removal of discretion from the Government. 
If the Government complies with the Decree for a reasonable period 
and the court finds that the decree is no longer needed to achieve 
its objectives, the order can be vacated. Or, even absent 
compliance, as described infra Section III.B, if the Government can 
meet the applicable standard for modifying or vacating decrees, 
that relief can be granted. There is no authority, however, and 
the Government cites none, for its contention that simply because 
an order has been in place for a substantial period of time, it 
must be vacated at the Government's request.

In an effort to support its position, the Government cites 
several cases involving commercial contracts with governmental 
entities.60 The Government acknowledges, as it must, Gov. Br. at

59 (. . . continued)
automatic substitution of successor government officials and citing 
Barnett v. Rodgers. 410 F.2d 995, 997 n.2 (D.C. Cir. 1969)).

60 United States Trust Co. of New York v. New Jersey, 431 U . S.
1 (1977) ; Home Bldg, and Loan Ass'n v. Blaisdell, 290 U.S. 398
(1934); Stone v. Mississippi. 101 U.S. 814 (1880); Western Fuels-

(continued...)
38



45, that while it has the power to enter contracts that confer 
vested rights, it also has a concomitant duty to honor those 
rights.61 Of course, contracts entered in the commercial context 
are quite different from consent decrees, which are not only 
contracts, but also judicial decrees that require adherence to 
underlying legal obligations. System Federation v. Wright, 364 
U.S. 642, 650-51 (1961). When entered to correct the Government's 
violation of the law, especially where that violation infringes 
individual rights, consent decrees bind the Government just like a 
decree entered after litigation. Moreover, in view of the salutary 
purpose of the decree, there is a strong justification for holding 
the Government to its bargain unless it can meet the applicable 
standards. Any other rule would be paradoxical, where by entering 
a consent decree the Government would gain an advantage that it 
would not have if the court had directly ordered the relief.

Further, the Government suggests that § 602's requirement of 
Presidential approval of proposed regulations indicates 
congressional intent to limit usual court review and enforcement of 
consent decrees with respect to executive policies and

60 (. . . continued)
Utah. Inc, v. Manuel Lu~ian. Jr.. Sec'v of Interior. No. 88-5417, 
slip op. (D.C. Cir. Feb. 9, 1990); Amino Bros. Co. v. United 
States. 372 F.2d 485 (Ct. Cl.), cert, denied. 389 U.S. 846 (1967). 
Those cases arising under the Contract Clause of the Constitution 
are further distinguishable because the Contract Clause is a 
limitation which by its own terms runs only against state, not 
federal power.

61Bowen v. Agencies Opposed to Social Security Entrapment. 477 
U.S. 41, 52 (1986); Perrv v. United States. 294 U.S. 330 (1935); 
Lynch v. United States. 292 U.S. 571 (1934).

39



procedures under these statutes. But that clearly is not the case. 
Congress required congressional review of Title IX and § 504
proposed regulations,62 thereby demonstrating no intent to elevate 
executive authority. In fact, at least as to Title IX these 
provisions went so far in limiting executive discretion that they 
violated the separation of powers doctrine. See INS v. Chadha. 462 
U.S. 919 (1983) .

2. Failure to Enforce Consent Decrees Against
Subseouent Administrations Would Seriously
Hinder the Government's Ability to Settle
Cases

There are strong policy reasons for enforcing consent decrees 
against subsequent administrations. The importance of voluntary 
settlements as a matter of public policy cannot be disputed.63 
Unless parties are confident that the Government remains bound by 
a consent decree, they are not likely to enter into them.64 As a 
result, the Government's capacity to settle cases would be gravely 
impaired. "Not even the government will benefit in the long run 
from being excused from having to honor its agreement; for who will 
make a binding agreement with a party that is free to walk away

6220 U.S.C. § 1232 (d) (1) , (f) ; 29 U.S.C. § 794. See also North 
Haven Bd. of Educ. v. Bell. 456 U.S. 512, 531 (1982).

63See Local Number 93 v. City of Cleveland. 478 U.S. at 523-26 
n.13; Gorsuch, 718 F.2d at 1126-27; Williams v. Vukovich. 720 F.2d 
909, 923 (6th Cir. 1983) ; Officers for Justice v. Civil Serv. 
Comm1n. 688 F.2d 615, 625 (9th Cir. 1982), cert, denied. 459 U.S. 
1277 (1983).

MSee Percival, The Bounds of Consent: Consent Decrees, 
Settlements and Federal Environmental Policy Making. 1987 U. Chi. 
Legal F. 327, 351 n.108, (potential negative effects of refusing to 
bind future administrations) ; Shane, Federal Policy Making by 
Consent Decree: An Analysis of Agency and Judicial Discretion. 
1987 U. Chi. Legal F. 241, 264 n.3 (importance of the Attorney 
General's broad powers to conduct litigation, which includes the 
authority to enter into binding consent decrees).

40



from an agreement whenever it begins to pinch?"65
Furthermore, consent decrees are uniquely well-suited for 

settlement of government litigation. In most cases, plaintiffs are 
not seeking damages, but rather, as here, an injunction mandating 
an agency's future compliance with the law. A consent decree 
allows a plaintiff to receive a promise that the Government will 
comply with its statutory responsibilities in the future while 
allowing the agency actively to craft the remedy, based on its own 
experience —  rather than having the order unilaterally imposed by 
a court. The benefits to agencies of entering into binding consent 
decrees has been recognized by the Government itself, which argued 
in Gorsuch:

There are sound policy reasons favoring the authority of 
the agency to agree to, and the district court to enter, 
a consent decree of this sort in settlement of 
litigation. The agency legitimately perceived a risk of 
losing these lawsuits —  with resulting judicial orders 
which could have severely restricted its discretion and 
prevented it from carrying out the statute in the manner 
it deemed most appropriate. Thus through the decree, EPA 
achieved the ability to pursue desired courses of action 
under the statute.66
B. THE AGENCIES HAVE NOT MET THE STANDARDS 

FOR VACATING THE 1977 CONSENT DECREE
1. The Swift Standard Governs this Case

All parties, including the Government, must meet the Supreme
Court's standard in United States v. Swift & Co.. 286 U.S. 106, 119
(1932), of a "clear showing of grievous wrong evoked by new and

65Alliance to End Repression v. City of Chicago. 742 F.2d 1007, 
1020 (7th Cir. 1984) (Posner, J.).

^Brief for Appellees at 11-12 in Gorsuch. 718 F.2d 1117 (the 
court concurred with this position see id. at 1127) . See also 
Percival, supra note 64, at 331.

41



unforeseen conditions" to modify or vacate a consent decree.67 
This Court recently applied the Swift standard to the government in 
a long-standing prison reform case in- the District of Columbia. 
Twelve John Does v. District of Columbia. 861 F.2d 295 (D.C. Cir. 
1988). Recognizing that in such "institutional reform" cases, 
usually involving prisons, some circuits have applied a more 
flexible standard,68 the Court nonetheless stated that, 
"[m]odification is an extraordinary remedy, as would be any device 
which allows a party —  even a municipality —  to escape 
commitments voluntarily made and solemnized by a court decree." 
Id. at 298.

Twelve John Does required the government, in order to secure 
modification of the order, to show a material change in operative 
law, an unpredictable change in circumstances, or harm to the 
public resulting from continued enforcement of the decree. Id. The 
Court also considered whether the government had demonstrated good 
faith attempts to comply with the decree. Id. at 300-01.

Failing even to cite Twelve John Does, the Government relies 
upon part of the test set forth in King-Seelev Thermos Co. v. 
Aladdin Industries. 418 F.2d 31 (2d Cir. 1969). The Government 
quotes King-Seelev for the proposition that a decree may be vacated

67The Swift standard has been reaffirmed and applied repeatedly 
in cases in which there is a governmental party. See. e.g.. United 
States v. Western Elec. Co.. No. 65-5642, slip op. at 7 (D.C. Cir. 
Jan. 16, 1990); Williams v. Lesiak. 822 F.2d 1223, 1227 (1st Cir. 
1987); Fortin v. Commissioner of the Mass. Dep't of Pub. Welfare. 
692 F.2d 790, 799 (1st Cir. 1982). See also United States v. City 
of Fort Smith. 760 F.2d 231, 234 (8th Cir. 1985).

^This case is not analogous to such institutional reform 
cases, as the Consent Decree has not involved day-to-day court 
review of the kind usually involved in those cases.

42



if it '"seriously and needlessly' infringes some legitimate 
interest of the party burdened by the decree." Gov. Br. at 34, 
but ignores altogether the further requirement of Kinq-Seelev that 
a "modification [be] necessary to achieve the results intended." 
418 F.2d at 35.

Courts applying Kina-Seelev have imposed a heavy burden upon
the moving party to allow modifications. Changed circumstances or
inability to comply with the decree have been the touchstone in
these cases. For example, in Fortin v. Commissioner of the
Massachusetts Department of Public Welfare. 692 F.2d 790, 800 (1st
Cir. 1982), while applying the Swift standard, the court explained:

The rationale of these cases [including Kinq-Seelevl is 
that when the relevant facts turn out to be different 
than supposed at the start, the decree may be altered to 
produce the originally intended result. . . .  In the 
present case, by contrast, no circumstance appears 
different now than it did in 1975, except perhaps the 
degree to which the Department regrets its consent. 
Regret intensified upon reflection is not, however, cause 
for modification.

Id. at 800.69 No court has ever adopted the standard suggested by 
the Government,70 and to do so here would fly in the face of the

69See also Keith v. Volpe. 784 F.2d 1457, 1460 (9th Cir. 1986) .
70The Government cites three cases from other circuits adopting 

what it terms a "considerably more relaxed standard." Gov. Br. at 
36 n.34. However, even these cases do not adopt the relaxed
standard the Government urges this Court to apply. In Philadelphia 
Welfare Rights Org. v. Shapp, 602 F.2d 1114 (3d Cir. 1979), cert, 
denied. 444 U.S. 1026 (1980), the court affirmed a modification of 
a decree governing Pennsylvania's enforcement of Title XIX of the 
Social Security Act, only after the state showed good faith efforts 
to comply, dramatic improvements in its enforcement, and that the 
numerical goals specified by the decree had proved to be 
unachievable. Id. at 1118. Even then the court modified only the 
numerical goals and kept the underlying order in place. In New 
York Ass'n for Retarded Children. Inc, v. Carey. 706 F.2d 956 (2d 
Cir.), cert, denied. 464 U.S. 915 (1983), the court, responding to 
an unforeseeable shortage of appropriate housing required for a

(continued...)
43



2. The Government Has Failed to Justify Vacating 
the Consent Decree Under Any Court-Adopted Test

On the record in this case, the Government falls far short of 
meeting any of the above court-adopted standards for modifying the 
decree, and, a fortiori, for vacating the decree as a whole. The 
Government has not shown "grievous wrong evoked by new and 
unforeseen conditions" under Swift. nor the material change in 
operative law, unpredictable change in circumstances, harm to the 
public, or good faith attempts to comply required by Twelve John 
Does. Finally, even under Kinq-Seeley. the Government has not 
demonstrated that the decree "seriously and needlessly" infringes 
on its activities, and surely has not claimed that totally vacating 
the decree is "necessary to achieve the results intended."71

When the Government urged the district court to vacate the 
Decree in March 1982, the court denied its motion, expressing 
concern about continued noncompliance with the underlying statutes. 
Responding to the Government's claim that the decree was no longer 
needed, the district court held that the decree "has been violated 
in many important respects and we are not at all convinced that

established rule in this Circuit.

70 (. . . continued)
transfer of residents from a state mental institution, modified the 
decree only after concluding that "modification was essential to 
attaining that goal [of the original decree] at any reasonably 
early date." Id. at 969. Finally, in Alliance to End Repression 
v. City of Chicago. 742 F.2d 1007 (7th Cir. 1984), the court never 
modified the decree, but simply found that compliance with the 
decree had taken place.

71The Government presumably has chosen not to assert this claim 
because OCR is now purporting to follow the decree on a voluntary 
basis. The Government admits that it simply does not want to have 
to demonstrate to the court the necessity for changes in the 
decree. Gov. Br. at 43.

44



these violations will be taken care of and eventually eliminated 
without the coercive power of the Court." JA-816.

Reflecting on both the failure of the Government to adhere to 
the Decree, and the absence of good faith efforts to comply, the 
district court stated,

I don't like to hold people in contempt. On the other 
hand, I'd like to see some kind of a manifestation by the 
people that administer these statutes that they realize 
they are under the constraints of a court order and 
accordingly, are going to make a good-faith effort to 
comply. JA 824.

In the same vein, the court said,
[W]e've almost come full cycle, it seems to me, 
we've gotten down to the point where, with the change of 
administration . . . [sic] [s]ure we've got Title 6, and 
these other statutes, 504 and Title 9, but we will carry 
those out in our own way and according to our own 
schedule. JA 822.

The court also emphasized its concerns about the danger of a
wholesale abdication of statutory duty if the decree were vacated:

[I]t seems to me if left to its own devices, the manpower 
that would normally be devoted to this type of thing 
. . . will fade away and the substance of compliance will 
eventually go out the window. And I think the plaintiffs 
are right in keeping the heat on, which is what they have 
done at periodic intervals. JA 876-87.

Finally, the district court underlined the central function of the
timeframes in ensuring compliance with the civil rights laws:

But the importance of the time frames, not only in 
getting the work done, I think is due to the fact that it 
will impress on the people who observe those time frames 
that after all we've got, first of all, a constitution; 
we've got certain acts of Congress, and we've got to pay 
attention to those things. JA 823.
Based on these findings and conclusions, the court held that 

defendants had not met the applicable standard of demonstrating a 
"'clear showing of grievous wrong evoked by new and unforeseen 
conditions,' United States v. Swift & Co. . 286 U.S. 106, 119

45



(1932), and that 'the purposes of the litigation as incorporated in 
the decree', United States v. City of Chicago. 663 F.2d 1354, 1360 
(7th Cir. 1981), have been accomplished." JA 961-62.72

On this record, it is little wonder that the Government has 
stretched to calling for dissolution of the Decree solely because 
it has been in place "too long." By any legitimate test —  whether 
Swift itself or any other consent decree precedent —  the 
Government's attempt to vacate the decree fails.
IV. THE STATES ARE NOT INDISPENSABLE PARTIES

The Court has asked whether "the states whose plans, reports, 
and compliance plaintiffs seek to review are persons properly 
'regarded as indispensable' within the meaning of Fed. R. Civ. P. 
19(b)?" WEAL v. Cavazos. 879 F.2d at 887. The question suggests 
that plaintiffs seek to have the district court determine an 
individual state's compliance with Title VI. That is not the case.

Plaintiffs seek precisely the same kind of determination that 
the district court made in 1977 and this Court approved in Adams v. 
Bell, 711 F.2d at 166 n.30 & 170 n.40 —  specifically a finding 
that OCR has abandoned longstanding agency regulations, and 
guidelines in recently determining whether states were compliance 
with Title VI.73 Such a finding is not a determination that any

72These findings carry great weight, for the district court's 
refusal to vacate the order may be overturned only if "unreasonable 
or based on clearly erroneous findings." Twelve John Does. 861 
F.2d at 298. See also Fortin v. Commissioner of Mass. Deo't of 
Pub. Welfare. 692 F.2d 790, 798-99 (1st Cir. 1982); Browder v. 
Dir., Dep't of Corrections. 434 U.S. 257, 263 n.7 (1978).

^OCR has used an "effect on desegregation" test to determine 
the Title VI compliance of states dismantling formerly de jure 
segregated systems of higher education. The standard was used in 
its Revised Criteria Specifying the Ingredients of Acceptable Plans

(continued...)
46



state, per se, has violated Title VI, but rather a decision that
OCR failed to follow the law, which should result in a remand to
the agency for a determination under the proper legal standard.74

This Court en banc in 1983, Adams v . Bell. 711 F.2d at 168-70,
in discussing related issues of intervention and joinder, expressly
approved this type of relief while never suggesting that joinder of
individual states was necessary, much less required:

Of course, nothing in the present opinion reflects upon 
the power of the district court in the District of 
Columbia to supervise the policy of the Department with 
regard to whether it will initiate enforcement 
proceedings against school systems. . . . The court
exercised this power in 1977, for example, when it 
ordered the Department to revoke its acceptance of plans 
submitted by the individual states which perpetuated past 
illegal discrimination. Adams v. Califano. 430 F. Supp. 
at 119-120; see supra note 30 [approving district court's 
rejection of OCR's acceptance of plans that failed to 
satisfy OCR's own standards].

Adams v. Bell. 711 F.2d at 170 n.40.
In order to resolve the Court's question whether the states

are "indispensable" under Fed. R. Civ. P. 19(b), the Court must

73 (. . . continued)
to Desegregate State Systems of Public Higher Education, 43 Fed. 
Reg. 6658 (Feb. 15, 1978) , and in the Title VI regulations, 34
C.F.R. § 100 et sea. However, recently OCR applied the completely 
inapposite test of "substantial implementation of significant 
measures" in a state's desegregation plan without regard to the 
impact of those measures on desegregation.

74In the district court, plaintiffs would refer to OCR's 
compliance findings in attempting to prove that the Agency applied 
an improper legal standard. However, plaintiffs would not in this 
case seek to have the court make factual findings or reach legal 
conclusions on whether an individual state was in compliance with 
the law.

47



first determine whether the states are "persons" who must be joined 
if feasible under Rule 19(a).75 Rule 19(a) requires joinder if,

(1) in the person's absence complete relief cannot be 
accorded among those already parties, or (2) the person 
claims an interest relating to the subject of the action 
and is so situated that the disposition of the action in 
the person's absence may (i) as a practical matter impair 
or impede the person's ability to protect that interest 
or (ii) leave any of the persons already parties subject 
to a substantial risk of incurring double, multiple or 
otherwise inconsistent obligations.
Here the states are not persons who must be joined; a 

fortiori, they are not indispensable to the action. First, 
complete relief can be had with the current parties to the 
litigation. Plaintiffs are attempting to end the continued federal 
violation of Title VI. If OCR is required to follow its own legal 
standards, its actions will comport with the law and relief will be 
secured. The states are not needed for such an adjudication.76

Second, the mere existence of some interests that might be 
affected by this litigation is not enough to make the states 
parties that must be joined;77 rather, the Court would have to find 
that as a practical matter the states' ability to protect their 
interests will be impaired or impeded by the litigation. But here

^See Cloverleaf Standardbred Owners Assoc., Inc, v. National 
Bank of Washington. 699 F.2d 1274, 1277 (D.C. Cir. 1983); Park v. 
Didden, 695 F.2d 626, 628-29 (D.C. Cir. 1982); Ilan-Gat Engineers, 
Ltd, v. Antiaua Int' 1 Bank. 659 F.2d 234, 241 (D.C. Cir. 1981); 
Coalition on Sensible Transp. Inc, v. Dole. 631 F. Supp. 1382, 1385 
(D.D.C. 1986); Mikulav Co., Inc, v. Urban Mass Transp. Admin., 90 
F.R.D. 250, 252 (D.D.C. 1980).

76See Bermudez v. United States Deo11 of Agric,. 490 F.2d 718, 
724 (D.C. Cir.), cert, denied. 414 U.S. 1104 (1973); Coalition on 
Sensible Transp. Inc, v. Dole. 631 F. Supp. 1382, 1384-85 (D.D.C. 
1986); Mikulav. 90 F.R.D. at 252-53; Defenders of Wildlife v. 
Andrus. 77 F.R.D. 448, 451-52 (D.D.C. 1978).

^Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U .S. 
102, 110 (1968); Mikulav. 90 F.R.D. at 252 & n.2.

48



the states can fully protect their interests, which the Government 
effectively concedes, Gov. Br. at 40, because they have an 
independent statutory right to challenge any finding of 
noncompliance. 42 U.S.C. § 2000d-2. Indeed, under Martin v. 
Wilks, 109 S. Ct. 2180 (1989) , the states would not be bound by any 
determination in this case.

Third, OCR will not risk incurring inconsistent obligations 
because plaintiffs do not seek a determination of any particular 
state's compliance. That OCR has had little concern that it would 
be subjected to inconsistent obligations is evidenced by the fact 
that it has never tried to join the states. OCR can be said to 
have "show[n] no interest in the joinder until the Court of Appeals 
took the matter into its own hands" which "properly forecloses any 
interest" it may have. Provident Tradesmens Bank & Trust Co. v. 
Patterson. 390 U.S. 102, 112 (1968).

Moreover, 42 U.S.C. § 2000d-5 provides that if a local 
education agency is in compliance with a final order of a federal 
court governing desegregation of its school system, the agency is 
deemed to be in compliance with Title VI on issues covered by the 
order. Thus, if a state sought judicial review of an OCR finding 
of noncompliance under § 2000d-2, the federal court order regarding 
that instance of discrimination would govern, and compliance with 
that order would be deemed compliance with Title VI.

49



CONCLUSION
For the reasons stated, plaintiffs and intervenors urge the 

Court to affirm the 1983 decisions of the district court, and to 
rule in their favor on each of the questions posed by the Court.

Respectfully submitted,

MARCIA D. GREENBERGER 
BRENDA V. SMITH
National Women's Law Center 
1616 P Street, N.W.
Suite 100
Washington, D.C. 20036 
(202) 328-5160

Counsel for Plaintiffs, 
Women's Equity Action League, 
et ajL. , and Plaintiff- 
Intervenors, Buxton, et al.

SUSAN E. BROWN 
NORMA V. CANTU

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

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.
JOHN D. ALDOCK 
ELIZABETH BROWN 

Shea & Gardner
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

Counsel for Plaintiff-Intervenor 
-Applicants, Association for 
Retarded Citizens of Georgia, et

ELLIOTT C. LICHTMAN 
Lichtman, Trister,
Singer & Ross
1666 Connecticut Ave., N.W. 
Suite 501
Washington, D.C. 20009 
(202) 328-1666

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.

COLEMAN S. HICKS 
CAROLYN VINSON

Covington & Burling 
1201 Pennsylvania Ave., N.W. 
Washington, D.C. 20044 
(202) 662-6000

Counsel for Plaintiff- 
Intervenor, National Federation 
of the Blind

al.
50



CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of April, 1990, I served 
the foregoing upon counsel of record by causing copies to be hand- 
served upon:

Michael Jay Singer 
Alfred Mollin 
Matthew Collette 
Appellate Staff 
Civil Division, Rm. 3631 
Department of Justice 
Washington, D.C. 20530

Elliott C. Lichtman



ATTACHMENT



U. S. Department of Justice

145-105-331
Telephone:
(202) 633-4116

Washington, D C  20530

January 29, 1990

Janell M. Byrd 
1275 K Street, N.W. 
Suite 301
Washington, D.C. 20005

Re: Adams v. Cavazos, D.C. Cir. Nos. 88-5068 et al.
Dear Counsel:

I am enclosing, for your information, copies of a recent 
change made by the Department of Education's Office of Civil 
Rights in the time frames within which it processes complaints of 
civil rights violations.

Very truly yours,

Alfred Mollin 
Senior Appellate Counsel 

Appellate Staff-Civil Division



MEMORANDUM UNITED STATES DEPARTMENT OF EDUCATION
W A S H I N G T O N .  D C. 20202

JAN 2 4 |990

TO : Regional C iv i l  Rights D irectors
Regions I-X _____ _ f

FROM : Wi 11 i am L . Smi th
Acting Assistant Secretary 

for C iv il  Rights

SUBJECT: Modification of the Office for C iv i l  Rights (OCR) Case
Processing Time Frames

I am in st itu t in g  the following changes to the OCR case processing time 
frames, effective February 1, 1990.

Letters of Findings shall be issued w ithin 135 days of the receipt of 
a complete complaint, or within 120 days of the date that a compliance 
review commences. Please note that a ll other case processing time frames 
remain the same. Therefore, the period of time allotted for negotiation, 
between the issuance of a v io la t ion  Letter of Findings and referral of 
the case to headquarters for enforcement, has been reduced from 90 days to 
60 days.

Cases that are currently being processed, whose current L0F due date i s  
January 31, 1990, or earlie r, w ill  be processed under the old time frames. 
Cases that are currently being processed, whose current L0F due date i s  
February 1, 1990, or later, w ill  be processed under the new time frames. 
Effective immediately, a ll  correspondence with complainants and recipients 
which refers to OCR's case processing time frames, such as letters of 
acknowledgement, should be revised to reflect the new time frames. You 
do not need to send special le tte rs  to complainants or recipients whose 
open cases are affected by th is  change at th is  time. However, they should 
be notif ied  in any normal, future correspondence, or in the L0F.

Attached are charts which compare the orig inal time frames to the new time 
frames for complaints and compliance reviews. I f  you have any questions 
concerning th is  change, please contact Frederick C io f f i  at FTS 732-1556.

Attachments

cc: Headquarters Senior S ta ff



TIME FRAME COMPARISONS 
COMPLAINTS

ORIGINAL ADAMS E
N
F

0 15 105 195 225 0
I I  90 | 90 | 30 | R
ACKNOW. INVESTIGATE L NEGOTIATE R C

0 E E
F F M

E E
R N

“ ‘ T

NEW

E
N
F
0

1 15 
______ 1_______ 120

135
1 60

195
1

225 R 
30 | C

ACKNOW. INVESTIGATE L NEGOTIATE R E
0 E M
F F E

E N
R T