Justia Federal District Court Opinions

In this suit appellants, two individuals and seven organizations located in various places in the United States, challenge the way in which the Office of Revenue Sharing handles complaints that funds it distributes in block grants are being used in particular programs in an illegally discriminatory manner. The district court held that appellants failed to state a claim upon which relief could be granted. Because we conclude that no federal statute or provision of the Constitution authorizes the type of action appellants have brought, we affirm the district court's decision.

In 1972 Congress enacted the State and Local Fiscal Assistance Act¹ (Revenue Sharing Act), thereby giving legal effect to a concept which had been proposed intermittently for more than 20 years²--that the federal government make general revenue grants to state and local governments with no strings attached.³ However, the idea of providing state and local governments with unlimited flexibility did not receive unanimous support. Some members of Congress were disturbed at the specter of permitting state and local officials, who had sometimes ignored or violated the civil rights of minorities and women, to expend federal funds without some accountability.⁴ Accordingly, the 1972 legislation included a provision which prohibited state and local governments from using revenue sharing funds in programs that discriminated on the basis of race, color, national origin, or sex.⁵

In 1976 the revenue sharing program was extended.⁶ At that time Congress, responding to complaints that the Office of Revenue Sharing (ORS) was not adequately monitoring local government compliance with the nondiscrimination provision⁷ (section 122), broadened the scope of section 122,⁸ specified timetables the ORS was to meet in resolving discrimination complaints,⁹ and authorized private citizen suits to enforce the provision.¹⁰

On 22 March 1976 a group of organizations and individuals¹¹ brought the present action against the Secretary of the Treasury, the Director of the ORS, and the Chief of the Civil Rights Branch of the ORS. In their complaint appellants alleged that each of the appellants resided in a locality which received funds under the Revenue Sharing Act; that the jurisdiction in which each lived was using those funds in a discriminatory manner in violation of section 122; and that each had filed an administrative complaint with the ORS to no avail. After the initial complaint was filed, the district court dismissed the case, holding that appellants lacked standing to challenge the ORS's actions. On appeal, this court reversed that decision.¹²

On remand appellants filed the amended complaint which is the focus of the present dispute. In that complaint appellants first alleged that the ORS had violated the Revenue Sharing Act by "failing to adhere to statutory and regulatory time limits" for resolving discrimination complaints and by failing to impose sanctions or take other steps effectively to enforce the "civil rights enforcement program."¹³ Appellants also alleged that the ORS's failure to perform its duties violated the Administrative Procedure Act¹⁴ (APA) and the Fifth Amendment.¹⁵

The relief sought by appellants, commensurate with the nationwide scope of the suit, was extremely broad based. The target of the action was the ORS's entire civil rights enforcement effort. Appellants asked the court, inter alia, to order the ORS to (1) "ensure that revenue sharing funding is not awarded to state and local governmental agencies which engage in discriminatory practices,"¹⁶ (2) "issue regulations which adequately enforce [ORS's] civil rights obligations,"¹⁷ (3) submit a "good faith request for each annual budgetary appropriation which includes provision for compliance positions sufficient to secure [ORS's] duties under Sec. 122,"¹⁸ and (4) fill "each civil rights compliance position immediately upon its opening."¹⁹ Appellants also requested that the district court retain jurisdiction of the action until the ORS had "fully complied with the orders" issued by the court.²⁰ In essence, appellants asserted that the ORS was not adequately enforcing the nondiscrimination provision, and they asked the court to do whatever was necessary to ensure that the ORS improved its performance--including specific directions on what regulations to issue and what budgetary requests to make of Congress.²¹

On 4 February 1981 the district court granted the ORS's motion to dismiss the complaint, concluding that appellants had failed to state a legally cognizable claim for relief. The district court's judgment was affirmed by a panel of this court in an unpublished decision filed 1 February 1982. On 2 August 1982 appellants' suggestion for rehearing en banc was granted and the panel's February 1982 decision was vacated.

We agree with the district court that Congress has not authorized a private action against the ORS of the type appellants would maintain. Instead, Congress has authorized private suits to check specific discriminatory acts of recipients of revenue sharing funds. We further conclude that the private actions Congress has authorized afford an adequate remedy within the meaning of the APA to persons aggrieved by violations of the Revenue Sharing Act's nondiscrimination requirements. We therefore affirm the district court's decision.

II. IMPLIED CAUSE OF ACTION UNDER THE REVENUE SHARING ACT

Appellants first contend that the Revenue Sharing Act creates a federal cause of action against the ORS for failing to investigate complaints against revenue sharing fund recipients and to monitor adequately compliance with the Act's civil rights safeguards. Appellants are unable to point to any provision of the Act which expressly creates such a cause of action. Thus, we can accept this argument only if we conclude that the private right of action appellants describe should be implied from the statute. An examination of the relevant factors, however, convinces us that such an action should not be implied.

In determining whether a private right of action should be implied from a federal statute, "the ultimate issue is whether Congress intended to create a private right of action."²² The four factors outlined by the Supreme Court in Cort v. Ash²³ provide the "criteria through which this intent [can] be discerned."²⁴ These factors are:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," ...--that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?²⁵

Even assuming that the first and fourth Cort factors can be resolved in appellants' favor, consideration of the explicit and implicit legislative intent, coupled with an analysis of the underlying purposes of the legislative enforcement scheme, requires us to reject appellants' argument.

From its inception, the revenue sharing program was premised on the "no strings" philosophy, in contrast to the categorical grant programs then in existence.²⁶ Thus, the ORS was to have a relatively small staff to administer the provisions of section 122, and extensive reliance was placed on the investigative and auditing powers of other state and federal agencies.²⁷ This enforcement scheme did not prove adequate, however,²⁸ and in 1976 when the revenue sharing program was extended, changes were made in the enforcement mechanism.²⁹ A review of the resulting enforcement scheme shows that while Congress was aware that the ORS might not adequately handle discrimination complaints, it deliberately structured the manner in which revenue sharing nondiscrimination obligations could be monitored and challenged with a view to avoiding large expansion of the ORS's staff.

The 1976 amendments expanded the scope of the ORS's nondiscrimination enforcement authority³⁰ and established time limits within which the agency was to act.³¹ Review of the ORS's performance was to be closely monitored by Congress. The Comptroller General³² was directed to review the ORS's performance and to report to Congress so that its members could "evaluate compliance and operations under the [Act],"³³ and presumably make whatever adjustments they deemed necessary. Congress' oversight function was further aided by the requirement that the ORS annually provide Congress with a "detailed analysis of ... the measures taken to comply with section ."³⁴

An augmented role for private citizens was expressly delineated in the 1976 legislation. First, the state and local governments were required to hold public hearings at which "citizens shall have the opportunity to provide written and oral comment on the possible uses of [revenue sharing] funds."³⁵ This afforded citizens the chance to spotlight illegal discrimination at the outset. Of more importance to the present dispute, private citizens were, in a limited way, also authorized to initiate post-budget compliance review. Under the 1976 law, persons aggrieved by violations of the nondiscrimination provision may file an administrative complaint with the ORS.³⁶ Within ninety days of the filing, ORS is directed to have conducted an investigation and to have made a finding.³⁷ If the ORS determines that the recipient entity has "more likely than not" violated the nondiscrimination provision,³⁸ various enforcement proceedings are to be initiated under section 122(b).³⁹ If, on the other hand, the ORS "fails to issue a determination" within the ninety day period, or if it determines that the recipient has "not failed to comply" with the nondiscrimination provision, the complainant is deemed to have exhausted his administrative remedies and he is entitled to bring an action under section 124(a).⁴⁰ Thus, Congress was aware that the ORS might fail to act on administrative complaints within the ninety-day period and it chose to give the aggrieved persons the sole remedy of filing a suit under section 124. Giving private citizens a remedy outside section 124 for the ORS's failure to investigate and follow up on complaints would significantly alter the scheme Congress crafted. Therefore, unless section 124 authorizes the type of suit appellants have brought, they are not entitled to bring it. After examining the legislative history behind section 124 we conclude that Congress did not intend to authorize private citizens to bring suit under that section naming the ORS as the sole or a principal defendant.⁴¹

Prior to 1976 there was no express private right of action in the Revenue Sharing Act. However, some courts had held that a private cause of action could be implied under the Act,⁴² and in one of those suits the ORS was a co-defendant. Appellants contend that section 124 merely codified those decisions. Thus, they argue, a suit like the present one was not foreclosed by the passage of section 124. Three separate provisions of the section are cited as support for this conclusion.

First, appellants note that while section 124 provides for a civil action by any aggrieved person whenever a state or local government has engaged in any action or practice prohibited by the Revenue Sharing Act,⁴³ it does not expressly delineate who can be a defendant in such a suit. Appellants argue that it is therefore possible to infer that the ORS can be a defendant in such an action.

Second, appellants point to the section 124(e) provision that attorneys' fees may be awarded "to the prevailing party, other than the United States ... and the United States shall be liable for fees and costs the same as a private person."⁴⁴ This, appellants maintain, is a further indication that the United States (in the form of the ORS) can be sued under section 124.

Finally, appellants remind us that in a suit under section 124 the court is empowered to "grant as relief to the plaintiff any temporary restraining order, preliminary or permanent injunction or other order, including the suspension, termination, or repayment of funds, or placing any further payments under this chapter in escrow pending the outcome of the litigation."⁴⁵ Appellants argue that the court's power to order a termination of ORS funding necessarily implies that the ORS can be designated as a defendant in such a suit. These arguments do not survive attentive review.

First, appellants' entire position is based on the premise that before 1976 a suit of this nature could be mounted against the ORS. However, that premise is not sound. Although the ORS was involved as a defendant in one pre-1976 suit under the Revenue Sharing Act,⁴⁶ that suit focused on discrimination in a particular local agency (the Chicago Police Department), not on the nationwide failure of the ORS's complaint-processing system. Indeed, the order against the ORS in City of Chicago was issued only after the district court found that the local government was engaged in illegal discrimination.⁴⁷ Thus, contrary to appellants' argument, no pre-1976 precedent exists for the type of suit appellants now seek to maintain. Appellants' argument that the 1976 amendment merely codified existing law is therefore unavailing.

Further, the statute by its terms appears targeted to suits against state or local governments. Although section 124 does not expressly delineate potential defendants, the section does state that an aggrieved person has a cause of action only when "a State government or a unit of local government ... is engaging in any act or practice prohibited by this chapter."⁴⁸ The section does not focus on the federal government's activities. The House conferees, in explaining the version of the bill which was adopted by the conference, described the nature of a suit under section 124 as follows: "This action, alleging any violation of the provisions of this Act, by a State government or a unit of local government, could seek such relief as a temporary restraining order ...."⁴⁹

Finally, and most importantly, an examination of the history of the 1976 legislation reveals that the version ultimately enacted reflects the views of members of Congress who were intent on ensuring that the ORS, with its limited resources, would not be a principal defendant in section 124 suits. As the expiration date of the original Revenue Sharing Act approached, the House Subcommittee on Intergovernmental Relations and Human Resources held two sets of comprehensive hearings in order to evaluate how the program was working and determine whether, and in what form, the program should be extended.⁵⁰ The Subcommittee examined a wide range of proposals and, after substantial debate, submitted a clean bill to the House Committee on Government Operations.⁵¹ The bill submitted to the Committee represented a compromise among "those forces wishing a simple extension of the program basically in its present form and those forces wishing to drastically alter the program by turning it into an instrument for the reform of certain State and local government activities and those forces wishing to simply terminate the program."⁵² This "delicate" compromise was changed by the Committee,⁵³ which adopted a "number of amendments,"⁵⁴ and reported the amended bill to the entire House.

Several members of the Committee, while supporting the Committee bill because of their "strong commitment to the General Revenue Sharing concept,"⁵⁵ noted their dissatisfaction with some of the changes made by the Committee and expressed their hope that the full House would "modify the injurious provisions."⁵⁶ One of the Committee amendments to which the dissatisfied legislators objected was the change in the nondiscrimination provisions.⁵⁷ After noting the specific differences between the version adopted by the Committee and that originally proposed by the Subcommittee, the dissatisfied members stated:

The central question is whether the United States government shall be in the position of defendant or plaintiff in civil rights enforcement cases. If the United States becomes a defendant in every civil rights case involving revenue sharing funds, its capacity to enforce laws will be severely limited. The Justice Department's enforcement powers would be greatly strengthened if such private suits were authorized against State or local governments, but not the Federal government. The role of the Justice Department should be the enforcement of the civil rights provision through litigation.⁵⁸

These members of Congress were clearly intent on ensuring that the ORS not be a principal party-defendant in a section 124 action and they felt that while the Subcommittee bill accomplished this purpose, the Committee bill did not.

The dissatisfied members' wish that the "injurious provisions" introduced by the Committee (including the nondiscrimination enforcement provision) would be modified by the entire House⁵⁹ was soon realized. Representative Horton (one of the dissatisfied members) attempted to substitute the Subcommittee bill for the version adopted by the Committee.⁶⁰ He abandoned that effort, however, when Representative Fountain offered to substitute "the bill approved by the subcommittee after intensive and careful consideration of this matter, together with the seven noncontroversial amendments adopted by the full committee."⁶¹ The version of section 124⁶² contained in the Fountain substitute was identical to that contained in the Horton substitute, which was the Subcommittee bill.⁶³ The House ultimately adopted this version of section 124,⁶⁴ as did the Senate.⁶⁵ As noted earlier, the Subcommittee bill was designed to authorize private suits "against State or local governments, but not the Federal government."⁶⁶ Thus, the version of section 124 ultimately adopted by Congress reflects a legislative intent to focus private actions on revenue sharing fund recipients and not on the ORS.

In sum, an examination of the overall enforcement scheme and the legislative history behind the enactment of that scheme convinces us that Congress was aware that the type of agency inaction alleged here⁶⁷ could occur, and that it chose to authorize private suits principally against the state or local government engaged in the discrimination, rather than against the ORS, whose limited resources might be overburdened if the agency were cast in the role of principal defender in section 124 suits.⁶⁸ Thus, we hold that the Revenue Sharing Act does not provide for a private cause of action of the type brought by appellants in this case.⁶⁹ We therefore turn to their other arguments.

III. CAUSE OF ACTION UNDER THE ADMINISTRATIVE PROCEDURE ACT

Appellants contend that even if their complaint does not state a cause of action under the Revenue Sharing Act, they are still entitled to relief under the APA. Both parties agree that the ORS's failure to process and resolve administrative complaints in a timely manner constitutes final agency action within the meaning of the APA.⁷⁰ However, the APA limits judicial review to "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."⁷¹ We have already decided that the action of the ORS challenged by appellants is not reviewable by statute.⁷² Therefore, in determining whether appellants have stated a cause of action under the APA, the key inquiry is whether section 124 provides an adequate remedy for the wrong allegedly inflicted on appellants by the ORS. We conclude that it does.

Appellants argue that if, as we hold, section 124 is largely limited to suits against state and local governments, it is an inadequate remedy because it does not provide redress against the ORS's failure to enforce the statute's nondiscrimination command. If the ORS pursued complaints adequately, funded units would comply with the law sooner, appellants postulate, and the need for appellants to resort to expensive, time-consuming section 124 suits would diminish.⁷³ However, it is not clear at all that a nationwide suit would remedy appellants' grievances more effectively than several section 124 suits. If the district court granted the broad relief requested by appellants,⁷⁴ the court could thereafter be called upon to supervise the ORS's handling of virtually every alleged violation of section 122. If the ORS slipped with regard to one of the programs at issue here, appellants could ask the district court to hold the agency in contempt, but such a proceeding would have to be initiated each time the ORS fell short of adequate oversight. Therefore, granting appellants the relief requested in this suit would not necessarily obviate the need to return to court, although it would empower one district judge to act as supreme supervisor of the ORS's enforcement activities--a role more appropriately reserved for the Executive under the oversight of Congress.

Even if we agreed that one nationwide suit would be more effective than several section 124 suits, that does not mean that the remedy provided by Congress is inadequate.⁷⁵ As the district court observed, the nondiscrimination provision of the Revenue Sharing Act was designed "to guarantee that the federal government does not finance discriminatory practices by recipients of federal funds."⁷⁶ Thus, a person aggrieved by a violation of section 122 is entitled to two types of relief: (1) a cessation of the discriminatory practice or (2) a termination of the federal funding. Both of these types of relief are available under section 124,⁷⁷ and the 90-day exhaustion requirement ensures that the aggrieved citizen will not be required to endure lengthy administrative delays in obtaining that relief.⁷⁸ Indeed, had the ORS acted favorably on appellants' complaints, the relief, while possibly obtained more quickly, might have been more limited than that available under section 124 since the ORS, although it could seek voluntary compliance, could not order the local government to stop the discrimination. Therefore, even if, as appellants argue, a nationwide suit would be more effective than several section 124 suits, we hold that the remedy provided by Congress is adequate to redress the discrimination allegedly encountered by appellants.

Amicus curiae⁷⁹ argues that we should remand this case to allow appellants to engage in discovery concerning the practices of the ORS so that the court will be in a better position to determine the adequacy of the remedy available under section 124. We conclude that such an action is unwarranted. Section 124 provides the district court with all the tools it needs to vindicate all the rights granted to aggrieved persons under the Revenue Sharing Act.⁸⁰ Thus, inquiry into the ORS's allegedly ineffective enforcement is neither necessary nor proper. Discovery of the magnitude suggested by amicus, an investigation of "the specific and ongoing practices of the ORS,"⁸¹ is more properly conducted by a Congressional subcommittee as part of its oversight function.⁸² What appellants and amicus are seeking here is not only the broadest possible discovery but the broadest possible continuing supervision of an Executive agency by a court. This is the type of judicial activity which has produced condemnation of the courts for overstepping their proper role. To utilize our judicial power in that manner would be particularly inappropriate in this case where the statute and the legislative debates demonstrate an intent to shield the agency itself from judicial interference.

Appellants also argue that they are entitled to relief under 28 U.S.C. Sec. 1361 which provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff."⁸³ This relief is available if (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.⁸⁴ Since, as outlined in part III above, an adequate remedy is available to appellants, they may not invoke the extraordinary remedy afforded by the Mandamus Act.⁸⁵

V. CAUSE OF ACTION UNDER THE FIFTH AMENDMENT

Appellants' final argument is that their complaint states a cause of action under the Fifth Amendment. They argue that the ORS's failure to process their discrimination complaints in the manner required by the Revenue Sharing Act and applicable regulations is of itself a violation of due process.⁸⁶ Such allegations do not state a cause of action under the Constitution because they do not establish that appellants have been deprived of any constitutionally protected interest. The agency's failure to follow the applicable rules is relevant to a due process claim only if the agency's action deprives the plaintiff of life, liberty, or property.⁸⁷ In the present case it does not.

The ORS's failure to process appellants' complaints does not extinguish their rights under the Act, it merely denies them the assistance of the ORS in vindicating those rights. In order to state a legally cognizable constitutional claim, appellants must allege more than the deprivation of the expectation that the agency will carry out its duties. If we concluded that such an expectation was protected under the Constitution, this court would be swamped with constitutional claims because every agency deviation from the statutory norm would raise constitutional questions.

Our response to appellants' constitutional argument is summed up in language used by the First Circuit when denying a similar claim against a Regional Director of the Equal Employment Opportunity Commission.

[T]his case involves the loss of alleged statutory rights to administrative assistance in the vindication of underlying, fundamental statutory and constitutional interests. The interests themselves have not been lost, only the help that Congress intended charging parties receive in vindicating those rights. We think that such statutory rights, if they be "liberty or property" at all within the meaning of the Due Process Clause, are so tangential to the central thrust of [Revenue Sharing] rights--for the deprivation of which Congress did provide a remedy--that an implied right of action cannot and should not be found here. Indeed, were we to find that the right to [ORS] assistance is protected by an implied right of action found in the Fifth Amendment, then every federal bureaucrat would be subject to judicial review of the most minute aspects of his responsibilities as they affect members of the public. Such is a task we are neither eager nor constitutionally competent to undertake.⁸⁸

The revenue sharing program, premised as it is on the "no strings" concept, is designed to operate with a relatively small federal staff. Congress directed that staff to do its part in ensuring that the funds distributed under the program were not used in an unlawfully discriminatory manner. At the same time, Congress was aware that the small ORS staff might not be able effectively to process all the discrimination complaints it received. It therefore chose to provide private citizens with a remedy in such situations, but that remedy was directed toward the state and local governments which were involved in the discrimination. By this means, and by the use of its oversight powers, Congress sought to establish an enforcement system which would both stop the use of federal funds in discriminatory programs and ensure that the small ORS staff would not be converted into a branch of the Justice Department's Civil Rights Division.

Appellants urge that the balance we believe Congress arrived at has not worked. However, the remedy Congress provided, while perhaps less effective as a broad social reform measure than appellants would desire, is adequate to redress their individual injuries. We therefore reject their attempt to put the courts in a perpetual oversight position with respect to the agency. Because we conclude that appellants have failed to state a legally cognizable claim for relief, the judgment of the district court is

Affirmed.

SPOTTSWOOD W. ROBINSON, III, Chief Judge, with whom joined J. SKELLY WRIGHT, WALD, MIKVA and HARRY T. EDWARDS, Circuit Judges, concurring in part and dissenting in part:

Appellants charge the Office of Revenue Sharing (ORS) with virtual abdication of its duty to enforce the nondiscrimination provisions of the Revenue Sharing Act.1 The gravamen of their claim is that ORS refuses, continually and systematically, to investigate administrative complaints of statutory violations, or to implement statutory procedures precipitating funding suspension or cutoff when recipients persist therein. This widespread inaction, appellants contend, amounts to agency renunciation of its statutory responsibilities, remediable only by a judicial order directing ORS to execute the Act's commands.

The court today, concluding that federal law discountenances the relief appellants ask, affirms an outright dismissal of their injunction suit. I think appellants' effort may be sustainable as a class action suitably invoking the Administrative Procedure Act.2 Accordingly, I would afford them an opportunity to demonstrate that it is.

* The Revenue Sharing Act enables state and local governments to share annually in the distribution of billions of federal dollars for use in a great variety of programs. Section 122(a) of the Act, however, bans specified types of discrimination in any project funded wholly or partly through revenue sharing.3 To implement this proscription, Congress has established procedures requiring ORS4 to ferret out discrimination by fund recipients and exact compliance with the nondiscrimination edict.5 These procedures, appellants insist, constantly are ignored by ORS.

The central feature of the Act's enforcement scheme is a triggering mechanism summoning ORS to launch compliance reviews. ORS is instructed to do so upon the occurrence of either of two events. One is the filing with ORS of a complaint alleging that a recipient has discriminated against the complainant.6 ORS is directed to then conduct an investigation, and to make a preliminary ruling on the charge within 90 days.7 If ORS finds it "more likely than not" that Section 122(a) has been violated, a notice of noncompliance must be sent to the recipient within ten days.8 Within 30 days after notice has been given, ORS must suspend revenue-sharing payments unless the recipient enters into a compliance agreement or requests a hearing with respect to the accusation.9

The second situation in which the Act enjoins ORS to proceed is receipt of notice by ORS of a finding by another administrative agency or a court that a revenue sharer has engaged in discrimination. Thereupon, ORS must pursue a similar course. A notice of noncompliance must be transmitted to the offender within ten days,10 and ORS must suspend payments within 30 days unless the offender enters into a compliance agreement or asks for a hearing.11

Appellants seek judicial correction of an asserted refusal by ORS to obey these statutory commands, and proffer eleven specific incidents as illustrative of repeated and pervasive derelictions of duty.12 The claim that ORS habitually fails to respond to administrative complaints, press for compliance agreements, cut off funds or impose other sanctions on recipients flouting the Act. They contend that these inactions are judicially reviewable under the Revenue Sharing Act, and under the Administrative Procedure Act as well.

The District Court, ruling on appellees' motion to dismiss, concluded that "in view of the purposes of the nondiscrimination provision of the Revenue Sharing Act, the private remedy in section13 undeniably provides an adequate remedy in court for each plaintiff's individual grievances."14 On this basis, the court held that appellants had not stated any cause of action under the Administrative Procedure Act,15 the mandamus statute16 or the Due Process Clauses of the Constitution.17 This position is now endorsed by a majority of my colleagues.

I agree with the majority that the Revenue Sharing Act does not confer a cause of action of the type framed by appellants. Congress designed the statutory grievance and judicial-review procedures to accommodate claims pressed individually.18 I conclude, like my colleagues, that Congress, in developing this comprehensive plan for administrative investigation and resolution of situation-specific complaints and for subsequent judicial review,19 did not intend to create thereby a new right of action challenging ORS' overall response to that plan.20 But, unlike the majority, I do not believe the inquiry properly ends at this point.

At the forefront of my analysis is "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."21 It matters not that the plaintiff cannot prevail on the legal theory he advances; rather, the question is whether he might succeed on any theory.22 Nor need the plaintiff's case merit the particular relief sought; it suffices that relief of some kind may be warranted.23 In either event, the plaintiff should be allowed to amend his complaint appropriately,24 and should be denied that opportunity only if it appears to a certainty that he simply cannot state a valid claim.25

That sort of impossibility does not exist here. Reading appellants' complaint in the light most beneficial to them26 and resolving all factual doubts in their favor,27 they are by no means the sole victims of ORS' asserted inertia.28 With a presently unknown number of other persons and organizations seemingly similarly situated, it may well be that appellants can meet the preconditions for certification as representatives of a class. It may also be that, as class litigants, they can attack ORS' alleged systemic failure to observe the Act's directives for consideration and disposition of citizen complaints. Thus appellants, as class members, may be able to seek relief of a kind which they cannot hope to obtain as individuals. The majority does not ponder these prospects, nor can they be adequately gauged on the record now before us, but in my view they must be explored and found wanting before it can be said that this case is susceptible to dismissal.

The threshold inquiry is whether there is a plausible basis for assuming that appellants can obtain class certification to protest ORS' systemwide handling of complaints. In the District Court, appellants professed to represent a class composed of "[a]ll Black, Latino-Mexican-American, handicapped persons, women" and their organizational counterparts "who have filed or may file administrative complaints with [ORS] alleging discrimination under Section 122 of the" Act.29 Deeming this class legally satisfactory,30 appellants moved for class certification.31 The District Court denied the motion, without prejudice, on grounds that the proposed class was overbroad in two respects: it included those who have not yet filed complaints with ORS, a group possibly encompassing countless unknown blacks, Latino-Mexican-Americans, handicapped persons, and women; and the named plaintiffs, the court felt, were not adequate representatives of women or the handicapped other than the blind.32

Since this ruling was without prejudice, it erects no barrier to reconsideration of the matter of class certification,33 particularly of a somewhat redefined class.34 And with that question inextricably bound up with the question of existence of a cause of action,35 the propriety of dismissing appellants' suit is wholly dependent upon the unavailability of class status. By my estimate, the case for class certification is strong.II

Surely appellants' suit survives the threshold class-action requirement that a "class" actually exist.36 Already, as appellants project the class, it would include only those who are within some group protected by Section 122(a) from discrimination,37 and it readily could, and indeed should, be further narrowed to persons38 who formally complain of discrimination to ORS.39 Thus refined, there would be, from a relatively early stage of the case,40 a class composed only of individuals sharing a right common to themselves and the named plaintiffs,41 with boundaries sufficiently precise to make positive identification of its membership at any given moment administratively feasible.42 This would, in my view, easily satisfy the initial call for an existing class,43 and no more than a minor bit of judicial surgery is needed.44 There remains, of course, the question whether the several prerequisites to class-action litigation are or possibly can be met.

Federal Civil Rule 23(a) permits class certification "only if (1) the class is so numerous that the joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."45 Early on in the District Court, appellants moved for class certification,46 but appellees opposed the motion on grounds that appellants' purported class did not satisfy the numerosity, commonality or typicality requirements.47 The court, in denying certification, held more restrictedly48 that appellants' claims were not typical of the class, and that appellants would not represent the class adequately because their injuries differed from those of the other members of the class.49 These conclusions, I believe, are open to serious question.50

The central inquiry in determining whether a proposed class has Rule 23(a)(3) typicality is whether the "class representative [is] part of the class and 'possess[es] the same interest and suffers the same injury' as the class members."51 The demand for typicality is designed to assure that the representative's interests are aligned with those of the class; with such concord, a named plaintiff litigating his or her own interests necessarily is litigating the interests of the class. In this respect, typicality is closely related to the Rule 23(a)(2) call for some common question of law or fact, and to the Rule 23(a)(4) requirement that the representative adequately protect the interests of absent class members.

A named plaintiff's claims are typical of the class when there is a nexus between the injury sustained by that plaintiff and the injury suffered by the class.52 Thus the representative's claim is typical if it stems from the same event, practice or course of conduct that forms the basis of the class claim and is to be litigated on the same legal theory.53 That, I think, rather plainly is the case here. Appellants allege injury from ORS' systemic refusal to address grievances presented administratively. If appellants are factually correct, they share a single type of harm inflicted upon everyone in a class composed of those who have filed administrative complaints with ORS. Clearly, appellants' claims and those of other actual filers would emanate from the same administrative practice, and would be redressable, if at all, through the same legal technology.54

I realize that normally the District Court's evaluation of typicality commands considerable deference for the substantial degree of discretion it incorporates.55 But where, as here, a denial of class certification virtually assures eventual dismissal of the plaintiff's substantive claim, the ambit of judicial discretion is necessarily constricted by the limitations on the court's power to dismiss, and the court's concomitant duty to permit litigants to rescue distressed lawsuits whenever possible.56 In that context, the court must resort to its authority to reshape the contours of the litigation57 to allow class treatment of meritorious claims that can be mounted only on a class basis.58 Had the District Court struck the one offending clause in appellants' class definition59 and limited the class to those who file complaints with ORS, its evaluation of appellants' cause of action could have proceeded along entirely different lines.60

The other class-related problem addressed by the District Court is whether appellants can serve adequately as class representatives. The general thrust of the court's adverse certification ruling was that appellants lack sufficient unity of interests with two of the groups--women, and those with handicaps other than blindness--included within the proposed class. Rule 23(a)(4) ensures that representative parties will fairly and adequately protect the interests of the entire class, and there is some conflict of authority among the circuits concerning the degree of similarity of interests and injuries needed between class representatives and class members.

Some courts allow the representative to launch an "across-the-board"61 attack on discriminatory practices, while others subscribe to a more restrictive "same-impact"62 doctrine, and in given cases the outcome could be vastly affected. To illustrate, upon an across-the-board challenge a named plaintiff who suffered from only one form of employment discrimination, such as denial of promotion, could represent a class comprising all employees hurt by any of the employer's discriminatory practices.63 The same-impact approach, however, limits the class to persons who have sustained injuries identical to those of the class representative; for example, a plaintiff discriminatorily refused transfer could represent only others denied transfer.64 This court has yet to choose between these two doctrines, but a selection seemingly would make no difference in the present case.65 At the very least, then, a remand is necessary to enable a sound determination as to whether appellants share the same injuries with members of the class.

III

I turn now to appellants' claim for relief, viewing it wholly on a class basis. Invoking the Administrative Procedure Act,66 they urged the District Court to examine and evaluate ORS' record on treatment of administrative complaints of discrimination presented under the aegis of the Revenue Sharing Act. Their legal premise is that the stagnation assertedly typifying ORS' performance in that area amounts to final and unlawful agency action for which a corrective injunction is the only adequate remedy. Appellants do not seek situation-specific relief of the type offered by Section 124 of the Act; they do not ask the courts to resolve any question of noncompliance by any particular locality. Rather, they complain that ORS, in administering the flow of revenue-sharing dollars nationwide, has chosen to dispense huge sums in flagrant violation of statutory procedures implementing the nondiscrimination commands of the Act. Appellants fully recognize that Congress, through Section 124, has conferred upon citizens an opportunity to litigate individual incidents of discrimination encountered in recipient communities, but contend that ORS is not fulfilling its own responsibilities under the Act. ORS, they claim, generally refuses to investigate complaints, to make findings after such few investigations as it conducts, or to secure compliance agreements or impose sanctions following the few findings of noncompliance that have emerged.67 Appellants urge that the aggregation of numerous instances of inaction and inordinate delay in processing complaints reflects a systemic breakdown beyond remediation by Section 124 suits.

It cannot be doubted that, despite the enactment of Section 124, appellants may resort to the APA for injunctive relief if they are able to qualify under its terms.68 Appellants allege facts tending to show that only an injunction directing ORS to adhere to statutory requirements can curtail widespread injuries visited upon class members.69 Accepting for present purposes, as we must, these allegations as true,70 the critical inquiry is whether, as demanded by the APA, there has been "final agency action for which there is no other adequate remedy in any court."71 All parties agree, as I do, that ORS' failure to process and resolve administrative complaints in timely fashion constitutes final agency action within the meaning of that requirement.72 The only matter in dispute is whether there is any other judicial remedy adequate for redress of the derelictions charged to ORS.

The court now answers that question in the affirmative, and limits its approval to individual discrimination suits under Section 124. If, then, ORS' alleged delinquencies are ever to be overcome, and discriminatory uses of revenue-sharing funds are ever to be eradicated, it would become necessary for citizens to sue separately for every locality spending such monies in a discriminatory manner, and to litigate independently every instance of discrimination in the many thousands of jurisdictions participating in revenue sharing. Under the court's ruling, the most the plaintiff in such an action can hope to achieve is suspension or cutoff of funds to the locality involved; ORS' role and accountability would be limited to that of nominal defendant, present solely to enable the court to frame an effective suspension or cutoff order.73 I respectfully disagree with the court's outcome.

Congress has established two approaches to the problem of discriminatory expenditures of revenue-sharing funds by recipient localities. First and foremost, Congress ordained administrative scrutiny in the manner delineated step-by-step in the Act--a process calculated to uncover latent episodes of discrimination, and thereby to enable enforcement of the nondiscrimination mandate through suspension or cutoff of funding.74 It is this process that appellants endeavor to animate by injunction. Secondarily, Congress provided for citizen enforcement of that mandate in individual situations by suits under Section 124 against localities.75 The issue is whether the Section 124 remedy is an adequate substitute for the sought-after injunction against ORS, and the time-honored test of adequacy is substantial equivalence in terms of practicality and efficiency.76 In my view, the Section 124 action does not meet that standard.

In the first place, the objectives of the two remedies diverge radically. Appellants' injunction bid is an effort to compel action by ORS itself, compliably with congressional directives, to investigate administrative complaints and either eliminate existing discrimination or suspend or terminate funding. Once ORS begins to honor its statutory responsibilities, neither appellants nor other complaining citizens would need to do more than submit complaints sufficiently informational to trigger investigations.77 The Section 124 action, on the other hand, is a full-fledged lawsuit directly against the accused locality, with ORS present only nominally, seeking a ban on discrimination or fund-suspension or -cutoff.78

These differences themselves demonstrate that Section 124 cannot afford relief substantially equivalent to that obtainable through an injunction ordering ORS to perform the duties Congress has imposed upon it. In the Section 124 action envisioned by the majority, the plaintiff must carry the burden of proof proving ongoing discrimination in the locality, in contrast to the much lighter burden on administrative complainants to show merely that discrimination is more likely than not.79 Moreover, ORS' restricted role in that Section 124 suit80 leaves it continuously and completely free to ignore the requirements of the Act, and thus to perpetuate the very course of conduct the injunction suit would attempt to alter. Thus ORS, which Congress explicitly instructed to tackle problems of discrimination, is wholly insulated from judicial review; indeed, it may close its eyes to allegations of discrimination, and dispense vast sums of shared revenues to the very entities about which citizens complain.81

Not only is Section 124 litigation less efficient from the citizens' viewpoint but impractical as well. Lawsuits are expensive, time-consuming and burdensome. Realistically, the number of Section 124 actions that citizens and their organizations can be expected to bring and maintain is grossly disproportionate to the problem as appellants pose it. With an aggregate citizens effort under Section 124 hardly more than pathetic, the blight of discriminatory expenditures of revenue-sharing funds will remain unabated. And ORS' adamant refusal to discharge its statutory duties will not only deprive affected citizens of the agency's investigative resources, but also of the wholesome influence of an aggressive administrative enforcement policy on compliance across the country.82 I believe Section 124 not only does not promise a legally adequate remedy, but is tantamount to little or no solution at all.83

My colleagues in the majority suggest that the broad-based mandatory order sought by appellants would compel the District Court to supervise ORS' performance under Section 122 in every instance of the filing of an administrative discrimination complaint and that this role is "more properly conducted by a Congressional subcommittee as part of its oversight function."84 I disagree, but in any event that is beside the point. The question confronting us is the adequacy of a particular remedy, not the extent to which an alternative remedy may appropriately be utilized. Moreover, injunctive relief is not simply for the asking; feasibility traditionally is a factor tempering judicial decrees, and experience indicates no need for relief of radical scope in consequence of class litigation. Heretofore, when recipients of federal funds have engaged in unlawful discrimination, federal courts have responded unhesitantly by requiring federal agencies dispensing those funds affirmatively to police compliance with statutory nondiscrimination edicts.85 In my judgment, an injunction directing ORS to perform its statutory functions is the only adequate remedy for the wholesale statutory violations appellants lay at ORS' doorstep.

IV

The impact of the Revenue Sharing Act is nationwide. Through it, billions of dollars are channeled annually to many thousands of state and local governmental entities. Thus far there has been little assurance that those entities calling upon ORS for large sums of these federal monies actually observe the nondiscrimination requirement of the Revenue Sharing Act. Vindication of this mandate now is left to citizen improvisation on a case-by-case basis, a process leaving untouched a pervasive and repeated agency refusal or failure to obey congressional commands. I think individual Section 124 actions against either recipient localities or ORS, or both, cannot afford adequate relief from that predicament. I therefore would allow appellants' injunctive suit against ORS to proceed if it qualifies as a class action.

The record before us, however, does not permit a full evaluation of the possibility of class-status certification. I am unable, for example, to discern whether appellants could adequately represent a viable class with respect to relief that properly may be sought. Nor can I tell whether the six instances of administrative grievance-handling alleged in appellants' amended complaint86 are representative of the type and breadth of claims that the class legitimately could assert against ORS. Accordingly, I would remand the case, with a reminder of "the well established rule that the claims of all the class need not be identical to those of the plaintiffs,"87 to enable the District Court to determine, among other things, whether "the individual's claim and the class claims ... share common questions of law or fact and [whether] the individual's claim will be typical of the class claims."88 I would also instruct the court to allow discovery to proceed on the question of scope of ORS' alleged inaction, for only thereafter could it be ascertained whether Section 124 relief would serve appellants adequately. And I would defer a ruling on the propriety of dismissal of this litigation until it can be made on a fully informed basis.