Council of and for the Blind of Delaware County Valley, Inc. v. Donald T. Regan, Secretary of the Treasury

709 F.2d 1521, 228 U.S. App. D.C. 295, 1983 U.S. App. LEXIS 26885, 31 Fair Empl. Prac. Cas. (BNA) 1721

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 10, 1983
• Docket: 81-1389
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge WILKEY.

Separate opinion concurring in part and dissenting in part filed by Chief Judge, SPOTTSWOOD W. ROBINSON, III, with whom Circuit Judges J. SKELLY WRIGHT, WALD, MIKVA and HARRY T. EDWARDS join.

WILKEY, Circuit Judge:

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.

I. BaCkground

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 § 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.

A. Nature of the Enforcement Scheme

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 [122].”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

B. Expressions of Legislative Intent

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 Act⁴³ 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 Revénue 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 ease 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 “[ajgency 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.

IV. Cause of Action Under the Mandamus Act

Appellants also argue that they are entitled to relief under 28 U.S.C. § 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

[9] 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 ease 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

VI. Conclusion

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.

1 . Pub.L. No. 92-512, 86 Stat. 919 (1972) (codified, as amended, at 31 U.S.C. § 1221-1265 (1976 & Supp. IV 1980)).

2 . “A form of general revenue sharing was actually in operation as early as 1836 ... [when] nearly $28 million was ... deposited with the State governments....

“In this century, congressional attempts to secure Federal tax sharing date back to 1949 when a Member [of Congress] from Kansas introduced a bill to transfer to State treasuries 1 percent of Federal individual and corporate income taxes raised within the State.”

122 Cong.Rec. 17091 (remarks of Rep. Anderson).

3 . S.Rep. No. 92-1050, 92d Cong., 2d Sess. 3, reprinted in 1972 U.S. Code Cong. & Ad.News 3874, 3876.

4 . See, e.g., Civti Rights Aspects of General Revenue Sharing: Hearings Before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess. 3 (1975).

5 . Pub.L. No. 92-512, § 122, 86 Stat. 919, 932 (1972) (codified, as amended, at 31 U.S.C. § 1242 (1976)).

6 . Pub.L. No. 94-488, 90 Stat. 2341 (1976). The program was renewed again in 1980. Pub.L. No. 96-604, 94 Stat. 3516 (1980). At that time funding to state governments was phased out, so that since 1 October 1980 all revenue sharing grants have been made to local governments. 31 U.S.C. § 1226(a)(1) (Supp. V 1981). The entire program will expire 30 September 1983 unless Congress acts to renew it. Id. § 1224(d)(2).

7 . See supra note 4.

8 . Pub.L. No. 94-488, § 8, 90 Stat. 2341, 2350-51 (codified at 31 U.S.C. § 1242(a) (1976)).

9 . Id. §§ 7, 8, 90 Stat. at 2350-52 (codified at 31 U.S.C. §§ 1242(b), 1245 (1976)).

10 . Id. § 7, 90 Stat. at 2349-50 (codified at 31 U.S.C. § 1244 (1976)).

11 . At one point the plaintiff group was composed of eleven organizations and two individuals. Plaintiffs’ First Amended Complaint at ¶¶ 6-14, Council of and for the Blind of Delaware Valley, Inc. v. Regan, No. 76-467 (D.D.C. 4 Feb. 1981). However, the present group of appellants consists of two individuals who reside in California and seven organizations located in Pennsylvania, Tennessee, and California. Appellants’ Original Brief at i.

12 . Committee for Full Employment v. Blumenthal, 606 F.2d 1062 (D.C.Cir.1979).

13 . Plaintiff’s First Amended Complaint at ¶ 66. Appellants also alleged that the ORS violated the Act by “failing to issue notices of non compliance after receiving holdings” that the local governments were engaged in illegal discrimination. Id. However, none of the holdings received by the ORS relates to any of the remaining appellants. See infra note 67.

14 . 5 U.S.C. §§ 701-706 (1976). See Plaintiffs’ First Amended Complaint at ¶ 69.

15 . Plaintiffs’ First Amended Complaint at ¶ 68. Appellants also argued that they were entitled to relief under the Mandamus Act, 28 U.S.C. § 1361 (1976), and that the ORS violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-6 (1976 & Supp. IV 1980). While we address appellants’ mandamus argument, see infra text at notes 84-85, the district court’s dismissal of the Title VI claim was not appealed.

16 . Plaintiffs’ First Amended Complaint, Prayer for Relief, at ¶ D.

17 . Id, ¶ E.

18 . Id, ¶ G(l).

19 . Id, ¶ G(2).

20 . Id, ¶ I.

21 . In their complaint appellants forthrightly state that the basis of their action is “not complaints of specific acts of discrimination against the ... local government recipients of revenue sharing funds.” Instead, it is an action “in the nature of mandamus to require ORS officials to perform their statutory duties” generally, rather than in a few specific instances. Plaintiffs’ First Amendment Complaint at ¶ 4.

22 . California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1778, 68 L.Ed.2d 101 (1981).

23 . 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

24 . California v. Sierra Club, 451 U.S. at 293, 101 S.Ct. at 1778 (quoting Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2275, 60 L.Ed.2d 846 (1979)).

25 . Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2087 (emphasis in the original) (citations omitted).

26 . See S.Rep. No. 92-1050, 92d Cong., 2d Sess. 3, reprinted in 1972 U.S.Code Cong. & Ad.News 3874, 3876.

27 . See Civil Rights Aspects of General Revenue Sharing: Hearing Before the Subcommittee on Civil Rights and Constitutional Rights of the House Committee on the Judiciary, 93rd Cong., 1st Sess. 3-6 (1973); State and Local Fiscal Assistance Act: Hearings on H.R. 6558 and Related Bills before a Subcommittee of the House Committee on Government Operations, 94th Cong., 1st Sess. 43 (1975).

28 . See supra text at note 7.

29 . See supra text at notes 8-10.

30 . 31 U.S.C. §§ 1242(b)(2) & (3), 1242(d) (1976).

31 . Id, §§ 1242(b), 1245.

32 . Id., § 1243(c)(8).

33 . Id., § 1243(c)(9).

34 . Id, § 1241(f)(1).

35 . Id., § 1241(b)(1). See also id., § 1241(b)(2).

36 . Id., § 1244(d).

37 . Id., § 1245.

38 . Id., § 1242(c)(4).

39 . Id, § 1242(b).

40 . Id., § 1244(d). Section 124(a) provides:

Whenever a State government or a unit of local government, or any officer or employee thereof acting in an official capacity, has engaged or is engaging in any act or practice prohibited by this chapter, upon exhaustion of administrative remedies, a civil action may be instituted by the person aggrieved in an appropriate United States district court or in a State court of general jurisdiction.

41 . The ORS may, however, be joined as a nominal defendant for purposes of relief. See infra note 68. It is also possible that the ORS may be a defendant in other limited circumstances, although we do not now decide that issue. See infra note 67.

42 . United States v. City of Chicago, 395 F.Supp. 329 (N.D.Ill.), aff'd, 525 F.2d 695 (7th Cir.1975); Mathews v. Massell, 356 F.Supp. 291 (N.D.Ga.1973). In City of Chicago, the ORS was joined as a defendant. See infra text at notes 46-47.

43 . 31 U.S.C. § 1244(a) (1976).

44 . Id, § 1244(e).

45 . Id., § 1244(b) (emphasis added).

46 . United States v. City of Chicago, 395 F.Supp. 329 (N.D.Ill.), aff’d, 525 F.2d 695 (7th Cir.1975).

47 . Id. at 335. It appears that the ORS was joined as a defendant in City of Chicago merely to ensure that funding would terminate if the plaintiffs were successful in their suit against the local government. Our decision does not rule out that possibility. See infra note 68.

48 .31 U.S.C. § 1244(a) (1976) (emphasis added).

49 . H.Rep. No. 94-1720, 94th Cong., 2d Sess. 37, reprinted in 1976 U.S. Code Cong. & Ad.News 5151, 5205 (emphasis added).

50 . H.Rep. No. 94-1165 (Part I), 94th Cong., 2d Sess. 4 (1976). See also 122 Cong.Rec. 17069 (remarks of Rep. Fountain).

51 . H.Rep. No. 94-1165 (Part I), 94th Cong., 2d Sess. 4-5 (1976). See also 122 Cong.Rec. 17069 (remarks of Rep. Fountain).

52 . 122 CongRec. 17082 (remarks of Rep. Steel-man).

66 . H.Rep. No. 94-1165 (Part I), 94th Cong., 2d Sess. 112 (1976). See supra text at notes 55-58.

67 . Our decision deals only with the situation in which it is alleged that the ORS has failed adequately to investigate or respond to administrative complaints or take steps to increase its capability to do so. We do not decide whether a person aggrieved by conduct of a revenue sharing fund recipient that violates section 122(a) could bring an action directly against the ORS if, after the ORS received a “holding,” as defined in 31 U.S.C. § 1242(c)(1), or a “finding,” as defined in section 1242(c)(4), the ORS refused to proceed against the local government as required by 31 U.S.C. § 1242(b) (1976).

In their complaint, appellants cite seven judicial “holdings” which they allege were received by the ORS, but which the ORS did not follow up on. Plaintiffs’ First Amended Complaint at ¶¶ 27, 31 (Pennsylvania v. Rizzo, 9 E.P.D. ¶ 9891 (E.D.Pa.1975); Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D.Pa.1972), aff'd in part, vacated in part, 473 F.2d 1029 (3d Cir.1973)); at ¶¶ 35-38 (Jones v. Milwaukee County, 19 E.P.D. ¶ 9209 (E.D.Wis.1979); United States v. City of Milwaukee, 441 F.Supp. 1371 (E.D.Wis.1977); Crockett v. Green, 388 F.Supp. 912 (E.D.Wis.1975), aff’d, 534 F.2d 715 (7th Cir.1976)); at ¶¶ 50-51 (United States v. San Diego County, 20 E.P.D. ¶ 30,154 (S.D.Cal.1979)). However, these allegations are not sufficient to state a cause of action under the theory noted in the preceding paragraph because none of the cited holdings relates to the appellants in the present case. None of the appellants resides in either Milwaukee or San Diego. Casa Justicia which is composed of Mexican-American individuals in the city and county of San Diego, Plaintiffs’ First Amended Complaint at ¶ 10, was voluntarily dismissed from this case. See Joint Appendix at 119. Northside Community Design Center and Latin American Union for Civil Rights, both organizations representing persons in Milwaukee, Plaintiffs’ First Amended Complaint at ¶ 7, were plaintiffs in this case, but they are not parties to this appeal. See Rule 8(c) Certificate, Appellants’ Original Brief at i. And, although the Council of and for the Blind of Delaware County Valley, Inc., serves people in the Philadelphia area, see Plaintiffs’ First Amended Complaint at ¶ 6, it represents the interests of blind persons, not racial minorities, which were the groups discriminated against in the cited Philadelphia cases.

Similarly, appellants’ allegations that an ORS employee determined that the City of Santa Maria, and the county of San Luis Obispo, California, were not in compliance with section 122 and that nevertheless, the ORS failed to enter into a compliance agreement with those entities, Plaintiffs’ First Amended Complaint at ¶¶ 43-44, 60-61, are not sufficient to state a cause of action under the theory outlined above. The ORS is not required to enter a written compliance agreement with a local government everytime one of its investigators determines that the local government is more likely than not in violation of the Act. The ORS is first required to send the local government a noncompliance notice. 31 U.S.C. § 1242(b)(1) (1976). The local government is then entitled to present evidence to the Secretary on the issues of whether the discrimination was unlawful and whether the program which is allegedly in violation has been funded by revenue sharing funds. Id. at § 1242(b)(2). The Secretary is then required to determine whether the local government is violating section 1242(a). Id. If the Secretary determines that the local government is in violation of the Act, he must temporarily suspend revenue sharing payments (pending a hearing before an administrative law judge) unless a compliance agreement is entered into. Id. If, on the other hand, the Secretary determines that the local government is not in violation of the Act, he is not required to do anything. Thus, appellants have failed to allege that the Secretary failed to carry out his duties under section 1242 because the averments of the complaint do not set forth all of the steps which must occur before a noncompliance agreement must be entered into. It is possible that the appellants who reside in the localities in question, if they qualify as “aggrieved persons,” MAY be able to state a cause of action against the ORS under the theory articulated in the first paragraph, but they have not done so in this case. We note that even if the theory advanced in the first paragraph could be the basis of a sitúation-specific suit (something we do not now decide) it could not be used as a springboard for a nationwide suit seeking grand scale relief.

53 . Id. See also id. at 17074 (remarks of Rep. Horton) (“In all my experience in the House, I never saw a bill so destroyed in just a few hours as occurred in the full Government Operations Committee when we adopted some of these amendments.”); id. at 17074 (remarks of Rep. Fuqua).

54 . H.Rep. No. 94-1165 (Part I), 94th Cong., 2d Sess. 5 (1976).

55 . Id. at 115 (Additional views of Reps. Horton, Erlenbom, Wydler, C. Brown, McCloskey, Steiger, Thone, Steelman, Pritchard, Forsythe, Hasten, Gradison, and G. Brown).

56 . Id.

57 . Id. at 111-12.

58 . Id. at 112 (emphasis added).

59 . See supra text at note 56.

60 . 122 Cong.Rec. 17337 (remarks of Rep. Horton). See also id. at 17068.

61 . 122 Cong.Rec. 17341 (remarks of Rep. Fountain) (emphasis added). After ascertaining that the Committee amendments contained in the Fountain substitute were not the ones to which the dissatisfied members objected, Representative Horton shifted his support to that substitute. Id. at 17342.

62 . As introduced in the House, the private civil action was contained in section 125. See 122 Cong.Rec. 17340. The provision became section 124 after the Senate made various changes to the entire Act. The substance of section 124(a), however, was left unchanged. See infra note 65.

63 . Compare 122 Cong.Rec. 17340 with id. at 17337.

64 . 122 Cong.Rec. 17368, 17395.

65 . 122 Cong.Rec. 30326-29 (1976). The Senate did add a provision outlining administrative remedies which had to be exhausted, 122 Cong. Rec. 29866-67 (1976), and a provision authorizing attorneys’ fees. 122 Cong.Rec. 29908 (1976). However, the House version of section 124(a) was left unchanged so that the provision that became law was identical to that originally offered by the Subcommittee. Compare 31 U.S.C. § 1244(a) (1976) with 122 Cong.Rec. 17337.

73 . Appellants’ En Banc Brief at 21-23.

74 . See supra text at notes 16-20.

75 . The dissent properly notes that the ORS’s “failure to process and resolve administrative complaints in a timely fashion” is the final agency action of which appellants complain. Dissent at 1549 (emphasis added). The dissent also properly notes that “when the grievance is simply that ORS has not met the 90-day deadline, the party’s sole recourse is a § 124 action against the recipient, and ORS nominally, for relief from discriminatory activity.” Id. at 1540 n. 20 (emphasis added). This is because “Congress realized that ORS might not be able to adhere to this timetable,” and it chose to give the complainant the right to initiate an action under section 124 when the time for agency action has expired. Id. at 1540 n. 20. Therefore, the dissent’s disagreement is really with Congress. Congress foresaw the allegedly illegal activity of which appellants complain and it adopted a remedy for the agency action in question which it considered adequate. We defer to the congressional judgment that the section 124 remedy is adequate, the dissent does not. The dissent thus errs when it charges that our result is “inconsistent with the will of Congress.” Id. at 1551 n. 82. Rather, it is the dissent which opposes the congressional will.

76 . Council of and for the Blind of Delaware Valley, Inc. v. Miller, No. 76-0467, slip op. at 11 (D.D.C. 4 Feb. 1981) (citing H.Rep. No. 94-1165 (Part I), 94th Cong., 2d Sess. 1, 12 (1976); S. Rep. No. 94-1207, 94th Cong., 2d Sess. 26-27, reprinted in 1976 U.S.Code Cong. & Ad.News 5176-77).

77 . Under section 124 the district court is authorized to issue “any temporary restraining order, preliminary or permanent injunction, or other order, including the suspension, or termination or repayment of funds .... ” 31 U.S.C. § 1244(b) (1976) (emphasis added). Both parties agree that this includes the power to order the local governments to discontinue discrimination in federally funded activities. Appellants’ En Banc Brief at 9-14; Appellees’ En Banc Brief at 13.

78 . 31 U.S.C. § 1244(d) (1976).

68 . The fact that attorneys’ fees may be awarded against the United States does not undermine the above conclusion. It is important to note that section 124(e) provides that “any prevailing party" may recover attorneys’ fees. 31 U.S.C. § 1244(e) (1976) (emphasis added). It does not limit such awards to prevailing plaintiffs. Since the United States can intervene as a plaintiff in a section 124 action, 31 U.S.C. § 1244(c) (1976), a provision permitting attorneys’ fees against the United States would allow the local government (which is the defendant in a section 124 suit) to recover attorneys’ fees against the United States if the local government prevails.

Nor does the court’s power to order a termination of ORS funding, 31 U.S.C. § 1244(b) (1976), detract from our conclusion. The ORS may be joined as a nominal defendant in order to obtain that relief, as the district court noted. Council of and for the Blind of Delaware Valley, Inc., No. 76-0467, slip op. at 3 n. 3 (D.D.C. 4 Feb. 1981). Such limited ORS participation in a section 124 suit would not alter the nature of the cause of action which arises under that section — one “alleging ... violation of the provisions of [the Revenue Sharing Act] by a State government or a unit of local government.” H. Rep. No. 94-1720, 94th Cong., 2d Sess. 37, reprinted in 1976 U.S.Code Cong. & Ad.News 5151, 5205.

69 . Appellants argue that our disposition of the present case is controlled by this court’s prior decision in Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc). In Adams plaintiffs brought an action directly against the funding agency (HEW) even though the recipients of the funds (public educational institutions) were the entities discriminating against the plaintiffs. However, Adams is distinguishable. First, the legislative history behind the statute involved in Adams (Title VI of the Civil Rights Act) was different from that in the present case. Unlike the Revenue Sharing Act, Title VI was not designed as a “no strings” grant scheme. There was, therefore, not the same congressional emphasis on limiting the size of the funding agency’s staff. Second, Congress did not expressly provide a remedy for the agency’s failure to enforce the nondiscrimination provision of Title VI. Accordingly, in Adams we were not facing a situation in which Congress had already indicated how it wanted private discrimination suits to be structured. In the present situation Congress has expressly provided a remedy; one directed primarily toward the local government, not the ORS.

Congress can choose how it wants to enforce a nondiscrimination provision. It is clear that by 1976 Congress knew how to create suits directly against a federal agency which failed to carry out its statutorily imposed duties. See, e.g., 33 U.S.C. § 1365(a)(2) (1976) (Federal Water Pollution Control Amendments of 1972); 42 U.S.C. § 7604 (Supp. V 1981) (Clean Air Act Amendments of 1970). We are therefore hesitant to infer that Congress has authorized such suits when it did not expressly say so. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S.Ct. 2479, 2487, 61 L.Ed.2d 82 (1979).

70 . See Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C.Cir.1970).

71 . 5 U.S.C. § 704 (1976) (emphasis added).

72 . See supra text at notes 22-69.

79 . The Lawyers’ Committee for Civil Rights Under Law.

80 . See supra text at notes 77-78.

81 . Amicus Brief at 15.

82 . See 31 U.S.C. § 1241(f), 1243(c)(9) (1976); Hearings supra note 4.

83 . 28 U.S.C. § 1361 (1976).

84 . See Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.), cert. denied, 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980).

85 . See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

86 . Appellants’ Original Brief at 42. See also Appellants’ En Banc Reply Brief at 16.

87 . See, e.g., Devine v. Cleland, 616 F.2d 1080, 1085-87 (9th Cir.1980) (agency’s failure to follow the statutory procedure considered only after court found that the procedure followed deprived plaintiff of a constitutionally protected property interest).

88 . Francis-Sobel v. University of Maine, 597 F.2d 15, 18 (1st Cir.), cert. denied, 444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319 (1979) (emphasis in the original).