Save Our Valley v Sound Transit Brief of Amici Curiae

    N o. 0 1 -36172

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

SAVE OUR VALLEY,

Plaintiff-Appellant,

vs.

SOUND TRANSIT (CENTRAL PUGET SOUND REGIONAL TRANSIT
AUTHORITY), et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

CASE NO. CV 00-0715 BJR

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND CENTER ON RACE, POVERTY

AND THE ENVIRONMENT
IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL 

(Motion for Leave to File Amici Curiae Brief Filed Concurrently)

ELAINE R. JONES 
DIRECTOR-COUNSEL 

NORMAN J . CHACHKIN 
JAMES L. COTT 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (Fax)

KIMBERLY WEST-FAULCON 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
1055 Wilshire Blvd., Suite 1480 
Los Angeles, CA 90017 
213) 975-0211 
213) 202-5773 (Fax)

LUKE W. COLE 
CENTER ON RACE, POVERTY 
AND THE ENVIRONMENT 

631 Howard Street, Suite 330 
San Francisco, CA 94105 
415) 495-8990 
415) 495-8849 (Fax)

A ttorneys for A m ici Curiae



N o. 0 1 -3 6 1 7 2

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

SAVE OUR VALLEY,

Plaintiff-Appellant, 

vs.
SOUND TRANSIT (CENTRAL PUGET SOUND REGIONAL TRANSIT

AUTHORITY), et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

CASE NO. CV 00-0715 BJR

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND CENTER ON RACE, POVERTY

AND THE ENVIRONMENT
IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL 

(Motion for Leave to File Amici Curiae Brief Filed Concurrently)

ELAINE R. JONES 
DIRECTOR-COUNSEL 

NORMAN J . CHACHKIN 
JAMES L. COTT 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

99 Hudson Street, Suite 1600 
New York, NY 10013 
212) 965-2200 
212) 226-7592 (Fax)

KIMBERLY WEST-FAULCON 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
1055 Wilshire Blvd., Suite 1480 
Los Angeles, CA 90017 
213) 975-0211 
213) 202-5773 (Fax)

LUKE W. COLE 
CENTER ON RACE, POVERTY 
AND THE ENVIRONMENT 

631 Howard Street, Suite 330 
San Francisco, CA 94105 
415) 495-8990 
415) 495-8849 (Fax)

A ttorneys for A m ici Curiae



FED. R. APP. P. 26.1 CORPORATE DISCLOSURE STATEMENT

Amici Curiae NAACP Legal Defense and Educational Fund, Inc. (“LDF”) and 

the Center on Race, Poverty and the Environment (“Center) are not parties to this 

proceeding. They are non-profit corporations, are not owned by any parent 

corporations, have not issued any stock, and no publicly held company owns any 

interest in them.

Dated: February 26, 2002 Respectfully submitted,

Kimberly West-Faulcon 
NAACP Legal Defense and 

Educational Fund, Inc.
1055 Wilshire Blvd., Suite 1480 
Los Angeles, CA 90017

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin 
James L. Cott
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013

Luke W. Cole
Center on Race, Poverty & the 
Environment
631 Howard Street, Suite 330 
San Francisco, CA 94105



T A B L E  O F  C O N T E N T S

Introduction and Statement of Interest of Amici Curiae........................................... 1

Statement of the Issu e ...............................................................................................2

Summary of Argument .............................................................................................4

Argument...................................................................................................................5

I. The District Court Failed Even To Consider Whether SOV’s Disparate
Impact Claims Are Enforceable Through Section 1983 .................... 5

II. SOV’s Disparate Impact Claims May Be Enforced Under Section 1983
.............................................................................................................8

A. Ninth Circuit and Supreme Court Precedent Require the
District Court to Apply the Blessing Three-Part Test to 
Both $ 602 of Title VI and the Department of 
Transportation Implementing Regulations...............................10

B. This Court Should Not Depart From Its Settled Precedent
to Follow the Third and Eleventh Circuit’s Mistaken 
Approach ................................................................................. 12

15Conclusion



T A B L E  O F  A U T H O R IT IE S

Federal Cases Pages

Alexander v. Sandoval, 532 U.S. 275 (2001).................................................... 3, 4

Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) ............................ 6, 9, 10, 11

Boatowners and Tenants Ass’n, Inc. v. Port of Seattle, 716 F.2d 669, 674 (9th Cir. 
1983) ...................................................................................................................... 5

Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995) .................... 4, 9, 10, 11

Cort v. Ash, 422 U.S. 66 (1975).........................................................................6, 13

Freestone v. Cowan, 68 F. 3d 1141, 1147 n.8 (9th Cir. 1995)................................ 6

Harris v. James, 127 F.3d 993 (11th Cir. 1997) ...................................... 11, 12, 13

Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216, 
1224 (9th Cir. 1978), cert, denied, 444 U.S. 826 (1979) (Keaukaha I) ................5

Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467, 
1470 (9th Cir. 1984) (Keaukaha I I ) ....................................................................5, 6

Levin v. Childers, 101 F.3d 44, 47 (6th Cir 1996).............................................  14

Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994) (citing Wright, 479 U.S. 
at 431), cert, denied, 513 U.S. 1150 (1995) ........................................................ 14

Maine v. Thiboutot, 448 U.S. 1,4 (1980)............................................................. 9

Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 
20 (1981)..............................................................................................................  10

Pennhurst State School Hosp. v. Halderman, 451 U.S. 1, 18-19 (1981) ..............9

ii



South Camden Citizens v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771 (3rd Cir. 2001) 
..............................................................................................................11, 12, 13, 14

Suterv. Artist M., 503 U.S. 347,361 (1992) ................................................  11,12

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 n.9 (1990)........  6, 8, 9, 12, 13

Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 430-32 (1987) 
.......................................................................................................................... 12, 14

Federal Statutes Pages

42U.S.C. § 1983 ................................................................................ 2 ,3 ,6 ,9 ,1 0

Title VI, 42 U.S.C. § 2000d..................................................................................n.4

Title VI, 42 U.S.C. § 2000d-l...............................................................  4, 6, n.4, 7

Federal Regulations Pages



Introduction and Statement of Interest of Amici Curiae

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) 1 is a 

non-profit corporation established under the laws of the State of New York. It 

was formed to assist black persons in securing their constitutional rights through 

the prosecution of lawsuits and to provide legal services to black persons 

suffering injustice by reason of racial discrimination. For several decades, LDF 

attorneys have represented parties in litigation before the U.S. Supreme Court, 

this Court and lower federal courts involving a variety of race discrimination 

issues.

The Center on Race, Poverty and the Environment (“Center”) is an 

environmental justice advocacy organization which represents low-income 

communities fighting environmental hazards. Based in San Francisco and Delano, 

California, the Center has worked with hundreds of community groups over the 

past twelve years. The Center has represented parties in litigation involving the 

application of civil rights and environmental laws.

This appeal arises from the District Court’s dismissal of a claim pursuant to 

42 U.S.C. § 1983 by a group of citizens from the overwhelmingly minority (Asian

1 Although established by the NAACP, LDF has been an independent entity 
for five decades. Its first Director-Counsel was Thurgood Marshall.



American, African American and Latino) community of Rainier Valley in 

southeast Seattle against Central Puget Sound Regional Transit Authority (the 

local transit authority), the Federal Transit Administration and various local, state, 

and federal transit officials (collectively “Sound Transit”) to remedy the racially 

discriminatory impact of the Central Link, a “light rail” transit line proposed to be 

built at street level in the Rainier Valley community, whereas it is proposed to 

tunnel through or be elevated above ground in non-minority communities.

The long involvement of LDF and the Center in efforts to enforce civil 

rights laws and environmental laws gives them a special interest in one of the 

major issues raised by this appeal: whether the District Court erred in dismissing 

plaintiff-appellant Save Our Valley’s claim to enforce the United States 

Department of Transportation’s implementing regulations promulgated under § 

602 of Title VI of the Civil Rights Act of 1964 in a section 1983 action and in 

granting defendants-appellees Sound Transit’s motion for summary judgment on 

that claim. Amici believe that their litigation experience and the research they 

have performed will assist the Court in this case.

Statement of the Issue

One of the major issues presented to this Court in this case is whether the 

District Court erred in holding that Save Our Valley’s section 1983 action to



enforce its Title VI disparate impact claim “must be dismissed” (ER 176 at 38). 

The District Court improperly accepted Sound Transit’s argument that the 

Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001), 

prohibited Save Our Valley (“SOV”) from enforcing Title VI disparate impact 

regulations promulgated by the U.S. Department of Transportation in a section 

1983 action. (ER 176 at 38). In Sandoval, the Supreme Court decided only the 

question of whether § 602 of Title VI itself creates a private right of action.2 532 

U.S. at 293. While the District Court correctly ruled that after Sandoval § 602

2As will be discussed further below, it is important to clearly distinguish the 
Supreme Court’s consideration of whether Congress intended to create a private 
remedy to enforce § 602 (intent to create a private right o f action), see Sandoval, 
532 U.S. at 293, from the “rights” analysis the Supreme Court did not address in 
Sandoval, whether § 602 may be enforced in a section 1983 action (which hinges 
on whether Congress intended § 602 to create a substantive right). The former 
question was decided by the Supreme Court in Sandoval — § 602 does not itself 
create a mechanism for private enforcement of its provisions, but the latter 
question, the question presented in this case -  whether plaintiffs may enforce §
602 in a section 1983 action -  was not considered by the majority in Sandoval.
The only discussion of the issue, found in Justice Stevens’ dissent, makes it 
abundantly clear that the District Court erred in dismissing Save Our Valley’s 
disparate impact claim. In his dissent, Justice Stevens states:

[T]o the extent that the majority denies relief to the respondents merely 
because they neglected to mention 42 U.S.C. § 1983 in framing their Title 
VI claim, this case is something of a sport. Litigants who in the future wish 
to enforce the Title VI regulations against state actors in all likelihood must 
only reference § 1983 to obtain relief.

Id. at 299-300 (Stevens, J., dissenting).



itself may not be read to create a private right of action, plaintiff should have been 

allowed to use section 1983 to enforce the disparate impact regulations 

promulgated under § 602.

Summary of Argument

The District Court seemingly failed to rule on whether § 602 of Title VI, 42 

U.S.C. § 2000d-l, and the U.S. Department of Transportation (“DOT”) 

regulations, 49 C.F.R. § 21.1 et seq., create federal rights enforceable under 

section 1983 despite the fact that Save Our Valley properly presented and both 

parties briefed this question below. (Save Our Valley’s Resp. In Opp’n to Sound 

Transit’s Motion for Partial Summ. Judgment Re: Title VI and Sections 1981,

1982, and 1983 (“SOV’s Resp.”) at 8-18; Sound Transit’s Reply in Support of 

Motion for Partial Summ. Judgment Re: Title VI and §§ 1981, 1982, and 1983 at 

5-7 (arguing that SOV cannot invoke § 1983 to enforce its disparate impact 

claim)). It is well settled in this Circuit that, even if a statutory provision alone 

does not satisfy the three-prong test for identifying an enforceable right, the proper 

approach is to apply the three-prong test to both the statute and its implementing 

regulations. See Buckley v. City o f Redding, 66 F.3d 188 (9th Cir. 1995). Had the 

District Court conducted the proper judicial analysis, as set forth in the decisions

4



of this Court and Supreme Court precedent, it would have concluded that SOV’s 

disparate impact claims should not have been dismissed.

Argument

I. The District Court Failed Even To Consider Whether SOV’s
Disparate Impact Claims Are Enforceable Through Section 1983

The District Court failed to recognize what this Court stated explicitly in 

Keaukaha-Pcinaewa Community Ass ’n v. Hawaiian Homes Comm ’n, 739 F.2d 

1467, 1470 (9th Cir. 1984) (.Keaukaha IP): “[Deciding there was no implied 

private cause of action . . .  did not determine whether a section 1983 cause of 

action is available to plaintiffs for deprivation of rights guaranteed under the . . . 

Act.” Id. In Keaukaha I, Keaukaha-Panaewa Community Ass ’n v. Hawaiian 

Homes Comm’n, 588 F.2d 1216, 1224 (9th Cir. 1978), cert, denied, 444 U.S. 826 

(1979), this Court held that plaintiffs had no implied private right of action to 

enforce the trust provision of the Hawaiian Admission Act. But, in Keaukaha II, 

this Court, having “stated expressly, ‘there could well be federal rights enforceable 

under section 1983 which are not enforceable by means of a private right of action 

under the statute creating them,’” id. at 1470 (citing Boatowners and Tenants 

Ass ’n, Inc. v. Port o f Seattle, 716 F.2d 669, 674 (9th Cir. 1983)), held that 

plaintiffs did state a federal cause of action under 42 U.S.C. § 1983. Keaukaha II,



739 F.2d at 1472. The Supreme Court has also noted that the judicial analysis of 

whether a statute is enforceable under section 1983 is a separate and distinct 

inquiry from the analysis of whether the statute encompasses an implied private 

right of action.3 Wilder v. Virginia Hosp. Ass ’n, 496 U.S. 498, 508 n.9 (1990).

SOV’s complaint alleges as its fifth cause of action a violation of 42 U.S.C. 

§ 1983 for deprivation of a federal right under color of state law, incorporating by 

reference its allegations that defendants have violated the DOT’S implementing 

regulations, promulgated under § 602 of Title VI of the Civil Rights Act of 1964, 

prohibiting federal fund recipients from discriminating on the basis of race, color, 

or national origin.4 (ER 11 at 31, 28.) In its order, the District Court fails even to

3“The inquiry into whether an implied right of action exists is governed by 
the four-factor Cort v. Ash test.” Wilder v. Virginia Hosp. Ass ’n, 496 U.S. 498, 
508 n.9 (1990) (citing Cort v. Ash, 422 U.S. 66 (1975)). “As the [Supreme]
Court’s discussion [in Wilder] shows, it is generally more difficult to establish an 
implied right of action than it is to establish the availability of a § 1983 action.” 
Freestone v. Cowan, 68 F.3d 1141, 1147 n.8 (9th Cir. 1995), vacated on other 
grounds sub nom. Blessing v. Freestone, 520 U.S. 329 (1997).

4Section 601 of Title VI provides:

No person in the United States shall, on the ground of race, color, or 
national origin, be excluded from participation in, be denied the benefits of, 
or be subjected to discrimination under any program or activity receiving 
federal financial assistance.

42 U.S.C. § 2000d. Section 602 of Title VI directs federal agencies “to effectuate 
the provisions [of § 601] . . .  by issuing rules, regulations, or orders of general



mention the fact that SOV is seeking to enforce its rights under § 602 of Title VI 

(its disparate impact claim) through section 1983. Instead, it relies wholly on 

Sandoval to support its decision to dismiss SOV’s disparate impact claims. The 

District Court fails to recognize the critical distinction between the judicial 

analysis that the Supreme Court undertook in Sandoval (analysis to determine 

whether there was an implied right of action within § 602 itself enabling plaintiffs 

to enforce § 602 in federal court) and the completely different question also before 

the District Court: whether a section 1983 cause of action is available to plaintiffs 

for deprivation of rights guaranteed under implementing regulations promulgated 

pursuant to § 602.

Save Our Valley briefed extensively the issue of pursuing its § 602 claim

through section 1983 in its opposition to Sound Transit’s motion for summary

judgment. (SOV’s Resp. at 8-18.) SOV also clearly acknowledged and

distinguished the Supreme Court’s decision in Sandoval'.

Sound Transit asserts that SOV’s Title VI disparate impact claim no longer 
is cognizable following Sandoval. Sound Transit is wrong. The Supreme 
Court’s ruling in Sandoval is narrow — it held only that Title VI does not

applicability.” 42 U.S.C. § 2000d-l. Lastly, pursuant to § 601, the U.S. 
Department of Transportation promulgated regulations implementing Title VI. 49 
C.F.R. § 21.1. These regulations prohibit federal fund recipients from engaging in 
actions that have a discriminatory effect (as well as actions that result from 
intentional discrimination). 49 C.F.R. § 21.5(a); (b)(2); (b)(3); (d).



create an implied private cause of action to enforce agency regulations 
promulgated under § 602 could be enforced through a § 1983 action.
DOT’S § 602 regulations establish a federal right against discriminatory 
impacts. Because Sound Transit’s decision deprives SOV and its members 
of that right, an action to enforce that right is available through § 1983.

(SOV’s Resp. at 9 (citations omitted)).

Nevertheless, the District Court did not acknowledge in its decision that

SOV was seeking to enforce § 602 and the disparate impact regulations by an

alternative means, through section 1983. (ER 176 at 38.) Accordingly, there is no

question that the District Court erred in failing to apply the appropriate analysis to

determine whether § 602 and its DOT implementing regulations create federal

rights enforceable through section 1983.

II. SOV’s Disparate Impact Claims Mav Be Enforced Under Section 1983

In a section 1983 action, the plaintiff must establish that the federal law at 

issue creates a “federal right” that is enforceable under section 1983. Wilder v. 

Virginia Hosp. Ass ’n, 496 U.S. 498, 509 (1990). SOV did establish that § 602 of 

Title VI of the Civil Rights Act of 1964 and the DOT disparate impact regulations 

confer rights enforceable under 42 U.S.C. § 1983.5 (See SOV’s Resp. at 12-18.)

5The specific rights SOV seeks to enforce through section 1983 include § 
602 and its implementing regulations’ prohibition against recipients (of federal 
financial assistance from the Department of Transportation) engaging in actions 
that have a discriminatory “effect'’ “in determining the types of [transportation] 
services,. . ., or facilities which will be provided . . .”, 49 C.F.R. § 21.5(b)(2), “in



However, the District Court failed to apply this Court’s standard for 

determining whether a federal statute and its implementing regulations are 

enforceable through section 1983 as set forth in Buckley v. City o f Redding, 66 

F.3d 188 (9th Cir. 1995). As a general rule, “section 1983 is broad,” providing a 

mechanism to enforce federal rights, with two exceptions. Id. at 190; Maine v. 

Thiboutot, 448 U.S. 1,4 (1980). First, a section 1983 action is unavailable if the 

statute and its implementing regulations fail the Blessing (formerly Wilder)6 three- 

part “rights-creating” test. Buckley, 66 F.3d at 190; Blessing v. Freestone, 520 

U.S. 329, 340-41 (1997); see also Pennhurst State School Hosp. v. Halderman, 

451 U.S. 1, 18-19 (1981). Second, a section 1983 action is unavailable if 

“Congress foreclosed citizen enforcement in the enactment itself, either explicitly, 

or implicitly by imbuing it with its own comprehensive remedial scheme.”7

determining the site or location of facilities . . .”, 49 C.F.R. § 21.5(b)(3), and in 
“makfing] a selection of a site or location of a facility . . .”, 49 C.F.R. § 21.5(d). 
(SOV’sResp. at 13.)

6 In Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), the Supreme Court 
reaffirmed the use of the three-part test it set forth in Wilder v. Virginia Hospital 
Association, 496 U.S. 498 (1990), to determine whether a statute creates a federal 
right enforceable under section 1983.

7As is clear from SOV’s careful analysis of how the Blessing three-prong 
test applies to the statutory and regulatory provisions at issue in this case, § 602 of 
Title VI and its DOT implementing regulations clearly meet each of the three 
Blessing requirements for creating a right enforceable through section 1983. See



Buckley, 66 F.3d at 190; Blessing, 520 U.S. at 341 \ see also Middlesex County 

Sewerage Authority v. National Sea Clammers Ass ’n, 453 U.S. 1, 20 (1981).

A. Ninth Circuit and Supreme Court Precedent Require the District 
Court to Apply the Blessing Three-Part Test to Both § 602 of Title 
VI and the Department of Transportation Implementing 
Regulations

In Buckley, this Court held that the Federal Aid in Sport Fish Restoration

Act and its interpretive regulations are enforceable through 42 U.S.C. § 1983. 66

F.3d at 193. To reach this conclusion, this Court applied each prong of the

Blessing (then-Wilder) three-part test -  (1) whether the provision in question was

intended to benefit the plaintiff; (2) whether it creates a binding obligation on the

state rather than a mere congressional preference; and (3) whether the asserted

interest is not so amorphous that “its enforcement would strain judicial

competence,” Blessing, 520 U.S. at 340-41 — to the regulations'.

First, the Act clearly is intended to benefit the plaintiffs. The Act’s 
regulations unambiguously state a purpose to increase access to waterways 
for recreational boaters and fishermen. Buckley and the PWIA have alleged 
an interest as recreational boaters and fishermen sufficient to establish 
standing to bring a section 1983 action under the Act. It is also clear the

Brief of Appellant at 47-49; SOV’s Resp. at 15-17. It is equally clear that 
Congress did not expressly preclude a section 1983 remedy nor did it create a 
remedial scheme that is sufficiently comprehensive to demonstrate congressional 
intent to preclude. See Brief of Appellant at 49-50; SOV’s Resp. at 18. Amici 
curiae do not repeat that analysis here.



Act creates a binding obligation on the state. In exchange for receiving 
funds under the Act, the state expressly promised to abide by the terms and 
regulations set forth in the legislation. 50 C.F.R. §§ 80.3, 80.21. The 
state’s obligation is in the nature of a contract and is clearly binding.
Finally, we do not think the asserted right is so amorphous as to be beyond 
our competence to enforce. To the extent the state permits access to one 
motorboat of a certain horsepower rating, it must also permit access to other 
motorboats of common horsepower ratings. Thus, we conclude that the Act 
unambiguously creates a right enforceable under section 1983.

Buckley, 66 F.3d at 192 (citations omitted) (emphasis added). Although it has not

ruled specifically on this issue, far from disapproving the approach previously

taken by this Court -  applying the three-prong Blessing/Wilder analysis to the

statute in conjunction with its implementing regulations, the Supreme Court itself

has applied the three-part test to regulations in determining whether section 1983

enforceable rights exist.8 See Blessing, 520 U.S. at 343-45; Suter v. Artist M., 503

U.S. 347, 361 (1992); Wilder, 486 U.S. at 512, Wright v. Roanoke Redevelopment

and Horn. Auth., 479 U.S. 418, 430-32 (1987). Had the District Court conducted

8As will be discussed further below, the Eleventh Circuit (in Harris v. 
James, 127 F.3d 993 (11th Cir. 1997)) and the Third Circuit (in South Camden 

® Citizens v. N.J. Dep’t o f Envtl. Prot., 274 F.3d 111 (3rd Cir. 2001), decline to
apply the Blessing three-part test to regulations unless additional requirements are 
met. See infra. However, “[t]he proper methodology, employed by the Supreme 
Court and by the courts of appeals in at least eight circuits, is to consider both the 

•  statute and its implementing regulations in determining whether an enforceable
right exists under the Wilder test.” Harris, 127 F.3d at 1014-15 (Kravitch, J., 
dissenting) (footnote, identifying the First, Second, Third, Sixth, Seventh, Eighth, 
Ninth and District of Columbia Circuits as having found it appropriate to consider 

£  regulations in conducting Wilder inquiry, omitted).

11



the proper judicial analysis, as set forth in this Court’s and Supreme Court 

precedent, it would have concluded that SOV’s disparate impact claims should not 

have been dismissed.9

B. This Court Should Not Depart From Its Settled Precedent to 
Follow the Third and Eleventh Circuit’s Mistaken Approach

Relying heavily on language in dissenting Supreme Court opinions and 

misreadings of Supreme Court majority decisions, the Third and Eleventh Circuits 

have departed from well-established Supreme Court precedent setting forth the 

proper approach for determining whether provisions such as § 602 and its 

implementing regulations create federal rights enforceable under section 1983. 

See, e.g. South Camden Citizens v. N.J. Dep’t ofEnvtl. Prot., 274 F.3d 771 (3rd 

Cir. 2001); Harris v. James, 127 F.3d 993 (11th Cir. 1997). The Third Circuit has 

departed from the law governing section 1983 causes of action by failing to apply 

the Blessing three-part analysis to statutes together with their implementing 

regulations, as has been the practice of the Ninth Circuit and the Supreme Court, 

see supra. The Third Circuit has also followed the Eleventh Circuit in 

fundamentally altering the law governing section 1983 causes of action by 

imposing the additional requirement that in order for regulations to create section

9See supra note 7.

12



1983 enforceable rights, plaintiffs must show that the regulations: a) further define 

or flesh out the statute, see South Camden, 274 F.3d at 790; Harris, 127 F.3d at 

1009, and/or b) were intended by Congress to create a §1983 enforceable right, see 

South Camden, 274 F.3d at 790; Harris, 124 F.3d at 1008 (“In our view, the 

driving force behind the Supreme Court’s case law in this area is a requirement 

that courts find a Congressional intent to create a particular federal right.”). See id. 

at 1014 (Kravitch, J., dissenting).

Even after acknowledging the difference, these courts have conflated the 

Cort10 implied-right-of-action analysis with the Blessing section 1983 enforceable 

rights analysis. The Cort test (a test rooted in separation of powers concerns) 

seeks to protect Congress’s authority to control the availability of remedies for 

violations of statutes, whereas separation of powers concerns are not present in the 

application of the Blessing test because it was Congress that provided express 

Congressional authority for private suits under section 1983. Wilder, 496 U.S. at 

508 n.9. Nevertheless, the Third and Eleventh Circuits appear to demand that 

section 1983 plaintiffs establish that Congress specifically intended particular 

implementing regulations to create an enforceable right. Moreover, the analysis of 

these courts is flawed because it relies on that of the dissenting opinion in Wright

10Cort v. Ash, 422 U.S. 66, 78-85 (1975).

13



v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987). See, e.g. 

South Camden, 274 F.3d at 781.

In fact, the majority opinion in Wright lends support to the Sixth Circuit’s

position that “[a]s federal regulations have the force of law, they likewise create

enforceable rights.” Loschiavo v. City o f Dearborn, 33 F.3d 548 (6th Cir. 1994)

(citing Wright, 479 U.S. at 431), cert, denied, 513 U.S. 1150 (1995); see also

Levin v. Childers, 101 F.3d 44, 47 (6th Cir 1996) (describing Loschiavo as holding

that “plaintiffs may use Section 1983 to enforce not only constitutional rights, but

also those rights defined by federal statutes [and federal regulations]” (brackets in

original)). The Wright majority states:

The dissent may have a different view, but to us it is clear that the 
regulations gave low-income tenants an enforceable right to a reasonable 
utility allowance and that the regulations were fully authorized by the 
statute.

Wright, 479 U.S. at 420 n.3. Thus, the District Court should have considered the 

disparate impact regulations in conducting the Blessing component of the section 

1983 inquiry.

Conclusion

For all the reasons set forth herein, Amici NAACP Legal Defense and 

Educational Fund, Inc. and the Center on Race, Poverty and the Environment

14



respectfully submit that the District Court’s order granting summary judgment in 

favor of defendants-appellees be reversed.

Dated: February 26, 2002 Respectfully submitted,

Kimberly West-Faulcon 
NAACP Legal Defense and 

Educational Fund, Inc.
1055 Wilshire Blvd., Suite 1480 
Los Angeles, CA 90017

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin 
James L. Cott
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013

Luke W. Cole
Center on Race, Poverty and the 

Environment
631 Howard Street, Suite 330 
San Francisco, CA 94105



Form 8: Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C) 
and Circuit Rule 32-1 for Case Number 01-36172

I certify that:

_lZ 4. Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit Rule 32-1, 
the attached amicus brief is

□ Proportionately spaced, has a typeface of 14 points or more and 
contains 7000 words or less,

or is

□ Monospaced, has 10.5 or fewer characters per inch and contains 
not more than either 7000 words or 650 lines of text,

or is

Not subject to the type-volume limitations because it is an 
amicus brief or no more than 15 pages and complies with Fed. R. 
App. P. 32(a)(l)(5).

l\}jU^hUc
Kimbdriy West-Faulcon

Dated: February 26, 2002



PROOF OF SERVICE

STATE OF CALIFORNIA 
COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California; I am 
over the age of IS and not a party to the within action; my business address is 
1055 Wilsnire Blvd., Suite 1480, Los Angeles, California 90017.

On February 26, 2002, at the direction of a member of the Bar of this 
Court, I served the within:

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND CENTER ON RACE, POVERTY 
AND THE ENVIRONMENT IN SUPPORT OF PLAINTIFF- 
APPELLANT AND REVERSAL

on the interested parties in this action, by delivering a copy thereof in a sealed 
envelope addressed to each of said interested parties at the following address(es):

Michael W. Gendler 
Bricklin & Gendler, LLP 
1424 Fourth Avenue, Suite 1015
Seattle, WA 98101

Eric Schnapper 
University of Washington 
School of Law 
1100 NE Campus Parkway 
Seattle, WA 98105

Brian C. Kipnis 
Mark D. Chutkow 
Assistant United States Attorneys 
601 Union Street. Suite 5100 
Seattle, WA 98101-3903 
(Attorneys for Federal Defendants)

Desmond L. Brown
General Counsel
Central Puget Sound Regional
Transit Authority
401 South Jackson Street
Seattle, WA 98104-2826

Paul Lawrence 
Thomas Eli Backer 
Preston, Gates & Ellis, LLP 
701 Fifth Avenue, Suite 5000 
Seattle, WA 98104 
(Attorneys for Central Puget Sound 
Regional Transit Authority, White, 
and Weinberg)

□ (BY OVERNIGHT DELIVERY SERVICE) I served the foregoing 
document by UPS Next Day Air, an express service carrier which provides 
overnight delivery, as follows. I placed true copies of the foregoing 
document in sealed envelopes or packages designated by the express service 
carrier, addressed to the interested party as set forth above, with fees for 
overnight delivery paid or provided for.

H (BY MAIL) I am readily familiar with the business practice for collection 
and processing of correspondence for mailing with the United States Postal 
Service. This correspondence shall be deposited with the United States 
Postal Service this same day in the ordinary course of business at our Firm’s 
office address in Los Angeles, California. Service made pursuant to this 
paragraph, upon motion of a party served, shall be presumed invalid if the 
postal cancellation date of postage meter date on the envelope is more than 
one day after the date of deposit for mailing contained in this affidavit.

□ (BY PERSONAL SERVICE) I caused such envelope to be delivered by 
hand to the offices of the above named addressee(s).



Executed this 26th day of February, 2002, at Los Angeles, California.

I declare under penalty of perjury under the laws of the United States of 
America that the foregoing is true and correct.

PROOF OF SERVICE

STATE OF CALIFORNIA 
COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California; I am over 
the age of 18 and not a party to the within action; my business address is 1055 
Wilsnire Blvd., Suite 1480, Los Angeles, California 90017.

On February 26, 2002, at the direction of a member of the Bar of this Court, 
I served the within:

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND CENTER ON RACE, POVERTY 
AND THE ENVIRONMENT IN SUPPORT OF PLAINTIFF- 
APPELLANT AND REVERSAL

on the interested parties in this action, by delivering a copy thereof in a sealed 
envelope addressed to each of said interested parties at the following address(es):

Office of the Clerk
United States Court of Appeals for
the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
ei (BY OVERNIGHT DELIVERY SERVICE) I served the foreeoing

document by UPS Next Day Air, an express service carrier which provides 
overnight delivery, as follows. I placed true copies of the foregoing 
document in sealed envelopes or packages designated by the express service 
carrier, addressed to the interested party as set forth above, with fees for 
overnight delivery paid or provided for.

□ (BY MAIL) I am readily familiar with the business practice for collection 
and processing of correspondence for mailing with the United States Postal 
Service. This correespondence shall be deposited with the United States 
Postal Service this same day in the ordinary course of business at our Firm’s 
office address in Los Angeles, California. Service made pursuant to this 
paragraph, upon motion of a party served, shall be presumed invalid if the 
postal cancellation date of postage meter date on the envelope is more than



one day after the date of deposit for mailing contained in this affidavit.

□ (BY PERSONAL SERVICE) I caused such envelope to be delivered by 
hand to the offices of the above named addressee(s).
Executed this 26th day of February, 2002, at Los Angeles, California.

I declare under penalty of perjury under the laws of the United States of 
America that the foregoing is true and correct.