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Ninth Circuit Rules Federal DOT Regulation Doesn't Create Civil Right

In a lawsuit over the siting of a Seattle area transit line, the Ninth U.S. Circuit Court of Appeals has ruled that a Department of Transportation environmental justice regulation cannot be enforced in court under the Federal Civil Rights Act. The Civil Rights Act ensures equal application of rights, but not necessarily of laws because laws do not always create rights, the Ninth Circuit panel held. And only Congress — not an executive branch agency via administrative regulation, can create a right, the court ruled. At issue was the Central Puget Sound Regional Transit Authority's siting of a 21-mile light rail line from north Seattle to Sea-Tac Airport. The Authority chose to build a 4.6-mile segment through the Rainier Valley, a predominately minority area in south Seattle. The Authority proposed to build the 4.6-mile segment at street level, unlike most of the rest of the line, which was proposed to be elevated or placed underground. A group called Save Our Valley filed suit under the Civil Rights Act (42 U.S.C. § 1983). Save Our Valley argued that the Authority's plan violated the U.S. Department of Transportation's "disparate impact" regulation, which the agency had adopted under Title VI of the Civil Rights Act. Save Our Valley argued that there would be a disproportionate impact on minority residents, including the taking of residential and business properties, displace of families, disruption of business and safety problems. U.S. District Court Judge Barbara Rothstein dismissed the lawsuit, ruling that the regulation did not create the right claimed by Save Our Valley. The group appealed, and the Ninth Circuit panel upheld the lower court. "The primary questions in this appeal is whether the Department of Transportation's disparate impact regulation creates an individual federal right that can be enforced through a 1983 action," Judge Ronald Gould wrote for the court. "The answer to that specific question depends upon the answer to a more general questions: Can a federal agency's regulations ever create individual rights enforceable through 1983? … We hold that an agency regulation cannot create individual rights enforceable through 1983." "The Supreme Court has held that only violations of rights, not laws, give rise to 1983 actions," Gould continued, citing Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), and Blessing v. Firestone, 520 U.S. 329 (1997). "This makes sense because 1983 merely provides a mechanism for enforcing individual rights ‘secured' elsewhere, i.e. rights independently ‘secured by the Constitution and laws' of the United States." The court conceded that federal circuit courts are split on the issue of whether a regulation can create a right. In ruling that a regulation cannot create a right, the Ninth Circuit pointed to the U.S. Supreme Court's rulings in Gonzaga and in Alexander v. Sandoval, 532 U.S. 275 (2001). In Sandoval, the court ruled that the State of Alabama's policy of administering driver's license tests only in English did not violate federal regulations implementing Title VI. In Gonzaga, the high court ruled that the Family Educational Rights and Privacy Act was not enforceable under § 1983 because Congress did not intend to create a federal right by passing the act. "We believe the Supreme Court's Sandoval and Gonzaga decisions, taken together, compel the conclusion we reach today: That agency regulations cannot independently create rights enforceable through 1983," Gould wrote. "Congress, rather than the executive, is the lawmaker in our democracy." In a separate opinion, Judge Marsha Berzon wrote that the two-judge majority's reasoning was all wrong. "In the end, however … the majority's bottom line is correct: The disparate impact regulation — although in my view indubitably a valid legislative regulation — does not create a ‘right' within the meaning of 1893," Berzon wrote. The Case: Save Our Valley v. Sound Transit, No. 01-36172, 03 C.D.O.S> 6038, 2003 DJDAR 7623. Filed July 10, 2003. The Lawyers: For Save Our Valley: Michael Gendler, Bricklin & Gendler, (206) 621-8868. For Sound Transit: Desmond Brown, Central Puget Sound Regional Transit Authority, (206) 398-5000.
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