United States v. City of Philadelphia

644 F.2d 187

• Court: Court of Appeals for the Third Circuit
• Decided: December 29, 1980
• Docket: No. 80-1348
• Status: Published

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The primary question in this appeal is whether the United- States has implied authority to sue a city and its officials for an injunction against violations of the fourteenth amendment rights of individuals. The government argues that both the criminal provisions of the Civil Rights Acts of 1866 and 1870, 18 U.S.C. §§ 242 and 241, and the fourteenth amendment itself give rise to an implied right of action. We also must decide whether the government has stated a claim for relief under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d, or the State and Local Fiscal Assistance Act of 1972 (the “Revenue Sharing Act”), 31 U.S.C. § 1242. In a pair of published opinions, the district court held that the Attorney General has no standing to advance the civil rights of third persons absent an express statutory grant of the necessary authority, and that the complaint did not allege claims under the two funding statutes with sufficient specificity; and accordingly it dismissed the complaint. United States v. City of Philadelphia, 482 F.Supp. 1248 and 1274 (E.D.Pa.1979). We affirm.

I.

Because the case comes before this court on appeal from orders of the district court dismissing the complaint, we assume that all well-pleaded allegations of the complaint are true, and we set out the facts alleged in the light most favorable to the appellant.

The government’s theory is that the ap-pellees, the City of Philadelphia and numerous high-ranking officials of the City and its Police Department, have engaged in a pattern or practice of depriving persons of rights protected by the due process clause of the fourteenth amendment. The allegations of the complaint can be conveniently divided into two categories. First, it alleges that Philadelphia police officers have engaged in a widespread practice of violating the rights of persons they encounter on the streets and elsewhere in the city. In particular, it charges that officers have stopped automobiles and pedestrians without probable cause and physically abused or illegally arrested those who protested, arbitrarily closed public areas and responded to protests or resistance with physical abuse and unwarranted arrests, conducted illegal searches and seizures, detained persons without probable cause or for excessive periods, denied them access to counsel or to medical care while detained, physically abused arrested persons, extracted information and confessions by means of physical brutality, subjected individuals to verbal abuse (including racial slurs), filed unwarranted criminal charges, and engaged in unnecessary use of deadly force, such as shooting criminal suspects who offer no realistic threat to the safety of police officers or other persons.

Second, the United States alleges that the appellees have deliberately encouraged these illegal practices through the policies and procedures they have established for investigating complaints of illegal police activity. It charges that the appellees discourage victims of abuse from complaining, suppress evidence that inculpates police officers, accept implausible explanations of abusive conduct, harass complainants and witnesses, prematurely terminate investigations, compile reports that justify police officers’ conduct regardless of actual circumstances, refuse to discipline police officers for known violations, and protect officers from outside investigations. It also charges various appellees with pursuing inadequate training practices, resulting in a pattern of police abuses, and with engaging in surveillance and harassment of critics of the police department.

The United States also alleges generally that some or all of the appellees have deliberately endeavored to encourage police violations of civil rights. It charges that these practices have been implemented with the intent and the effect of inflicting abuse disproportionately on black and Hispanic persons. And finally, it alleges that the foregoing practices have been implemented by police department personnel whose activities are funded in part by federal grants dispensed for the purpose of improving police procedures.

In its prayer for relief, the government asks for a declaration “that the acts, practices, policies and procedures alleged herein violate the Constitution and laws of the United States.” It also asks the court to enjoin “the defendants, their agents, employees, successors in office, and all those acting in concert or participation with them” from engaging in the conduct alleged, “from failing or refusing to correct the effects” of that conduct, “from failing or refusing to ensure” that such conduct will not recur, “and from receiving, expending, or failing to make restitution for previously expended federal funds, unless and until defendants cease such acts, policies, practices, and procedures and correct their effects.” Complaint, 150, pp. at 34.

II.

We first address the contention that the two criminal statutes, 18 U.S.C. §§ 241 and 242, implicitly grant the United States a right of action for injunctive relief. These statutes provide:

§ 241. Conspiracy against rights of citizens

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same ...

They shall be fined not more than $10,-000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life. § 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or fo.r life.

The Attorney General relies principally upon Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), and Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), as authority for inferring a civil cause of action from the two criminal statutes. These and subsequent decisions of the Supreme Court, including Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), establish comprehensive standards for inferring rights of action. Under these decisions the “central inquiry” and the “ultimate question” is congressional intent. Touche Ross, 442 U.S. at 575, 578, 99 S.Ct. at 2489; see also Transamerica, 444 U.S. at 15-16, 99 S.Ct. at 244; Cannon, 441 U.S. at 688, 99 S.Ct. at 1953; Cort, 422 U.S. at 80-84, 95 S.Ct. at 2089; Wyandotte, 389 U.S. at 203-04, 88 S.Ct. at 386; Glus v. G. C. Murphy Co., 629 F.2d 248, 255 (3d Cir. 1980), cert. denied - U.S. -, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980); id. at 262-63 (Sloviter, J., dissenting); National Sea Clammers Ass’n v. City of New York, 616 F.2d 1222, 1229 (3d Cir. 1980), cert. granted, - U.S. -, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980).

We begin by rejecting the government’s suggestion that the comprehensive analysis developed in the later Supreme Court opinions must be discarded in favor of its 1967 Wyandotte decision. The Attorney General argues that Wyandotte sets forth a different and more liberal test for recognition of implied rights of action in favor of the government, and that Wyandotte requires implication of the broad right to seek injunctions claimed here because there are no “other adequate means by which the United States can carry out its responsibility.” Brief for Appellant at 18.

We reject the argument that Wyandotte established a different standard for inferring rights of action in favor of the government than the standard applicable to private litigants.¹ Wyandotte relied on “cases involving civil actions of private parties,” 389 U.S. at 202, 88 S.Ct. at 386, and Cort v. Ash subsequently cited Wyandotte in developing further the test for inferring private rights of action. 422 U.S. at 79, 95 S.Ct. at 2088. More important, however, we think that Wyandotte represents merely one step in the development of the current standards for inferring rights of action and that the unrefined analysis employed in Wyandotte is no longer an accurate statement of the law. In Wyandotte the Supreme Court seemed to operate on the basis of a presumption that a civil damages remedy ordinarily should be inferred from a penal statute in the absence of “some persuasive indication” that “Congress must have intended the statutory remedies and procedures to be exclusive of all others.” 389 U.S. at 200, 88 S.Ct. at 385. We would be blind to subsequent developments in a dynamic area of the law, however, if we failed to recognize that in recent years the Court has been far more reluctant to infer rights of action for silent statutes. See Touche Ross, 442 U.S. at 578, 99 S.Ct. at 2490. Instead of the presumption employed in Wyandotte, that statutory silence indicates congressional intent to create a cause of action by implication, the Court now adheres to the “elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Transamerica, 444 U.S. at 19, 99 S.Ct. at 246.² See also Touche Ross, 442 U.S. at 574, 99 S.Ct. at 2488: “[W]e are extremely reluctant to imply a cause of action ... that is significantly broader than the remedy that Congress chose to provide.” The analysis employed in the later cases is plainly inconsistent with the generous attitude of the Wyandotte opinion.³ Therefore, we must reject the government’s argument that Wyandotte would require us to infer a right of action from congressional silence and an absence of “adequate” remedies to redress the wrongs at issue.

Even if we were to accept the suggestion that a lack of adequate remedies requires recognition of an implied right of action, however, we could not find a federal right to sue for an injunction in this case. Congress has created numerous mechanisms for the redress of denials of due process. Persons denied constitutional rights may sue state officials for damages or injunctive relief under 42 U.S.C. §§ 1981, 1982, 1983, and 1985. Those suits may be filed as class actions under Rule 23, Fed.R.Civ.P., and prevailing litigants may recover attorneys’ fees under 42 U.S.C. § 1988. A private litigant may obtain damages or an injunction against a city itself in certain situations. See Owen v. City of Independence, 445 U.S. 622 (1980); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Private injunctive actions have been maintained successfully against “widespread” violations committed by local law enforcement officials. See, e. g., Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (in banc); see also Hairston v. Hutzler, 334 F.Supp. 251 (W.D.Pa.1971) (preliminary injunction), aff’d, 468 F.2d 621 (3d Cir. 1972) (per curiam). In Wyandotte, by contrast, the United States was forced by an emergency situation to remove a negligently sunken barge loaded with a dangerous cargo from the bottom of the Mississippi River, and it had no mechanism to recover its expenses other than a personal action against those responsible for the sinking.⁴

In addition, the United States can initiate criminal prosecutions under §§ 241 and 242, and it has successfully prosecuted Philadelphia police officers for unconstitutional conduct. See, e. g., United States v. Ellis, 595 F.2d 154 (3d Cir.), cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (1979). The Attorney General argues nonetheless that the criminal process is inadequate, because he would rather rely on a massive “single civil action” than to “continue repeated use of the criminal process.” Brief for Appellant at 19. In short, although numerous express remedies exist, the Attorney General, stretching Wyandotte beyond recognition, invites this court to create another. We decline , the invitation on this record.⁵

III.

Nor are we persuaded that a different result is compelled by application of the Cort v. Ash analysis. That decision recognized four factors as relevant in determining whether a statute has implicitly created a private remedy:

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 legisla-five 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?

422 U.S. at 78, 95 S.Ct. at 2087 (citations omitted).

For the purposes of our analysis we shall assume, without deciding, that the Cort v. Ash test is appropriate in this case, in which no private litigant claims monetary damages for the harm it has suffered from a statutory violation, but instead the United States seeks an injunction against what it perceives to be criminal activity.⁶ We apply the Cort analysis in this case because the appellant advocates its use and because it clearly is no less generous a test than the appellant is entitled to have applied. This makes it unnecessary to decide whether a stricter standard should be applied to the federal government asserting an implied right to sue for an injunction than to a private litigant seeking' damages. However, we apply the Cort test with the understanding that we must be reluctant to infer an additional statutory remedy that is significantly broader than those that Congress has chosen explicitly to provide. See part II, supra.

A.

We now consider the first factor of Cort v. Ash: is the United States one of the class for whose especial benefit the statute was enacted? We answer this question in .the negative. The government argues that it has a “duty” under §§ 241 and 242 to prevent violations of constitutional rights, and that this “duty” satisfies the first component of Cort. Brief for Appellant at 21. This “duty” analysis begs the fundamental question presented by this appeal. Although we might concede that in some abstract and metaphysical sense the government has a “duty” to its citizens to enforce the criminal statutes,⁷ even that concession would leave us far from accepting the government’s position. It may be also that § 5 of the fourteenth amendment would authorize Congress to impose on the Executive a generalized duty to prevent violations of the Constitution. Congress has not created such an obligation, however, either in §§ 241 and 242 or elsewhere, and this court does not have authority to impose the “duty” the government so eagerly seeks to assume.

Considering the first Cort factor in the context of its formulation, we find no support for the government’s position. The United States is no part of a “class for whose especial benefit the statute was enacted”; i. e., the statute does not “create a federal right” in favor of the government. We conclude, therefore, that the first factor articulated in Cort v. Ash weighs heavily against implication of a right of action from §§ 241 and 242.

B.

The second branch of the Cort test requires us to consider whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one. The government argues that this factor is neutral because the legislative history of the Reconstruction-era Civil Rights Acts does not reveal that Congress considered providing a civil remedy for the United States. Brief for Appellant at 21.

Between 1865 and 1871 Congress drafted the thirteenth, fourteenth, and fifteenth amendments and enacted a comprehensive statutory scheme for their enforcement. It gave extensive consideration to the creation of remedies to enforce the amendments. It provided several criminal and civil actions. In § 9 of the Civil Rights Act of 1866, 14 Stat. 29, repealed by § 122 of the Civil Rights Act of 1957, Pub.L.No. 85-315, 71 Stat. 637, it even authorized the President to call out the military “to prevent the violation and enforce the due execution of this Act.” The Attorney General discusses the legislative history at length, but he fails to draw the obvious inference: that the extensive congressional consideration of the problem of enforcement and the compre'hensive legislative program that it developed simply foreclose the possibility that it implicitly created an additional remedy without ever mentioning its existence in. either the statutes or the debates.⁸ There certainly is no evidence of congressional intent to create an additional remedy with the incredible breadth and scope of this one. The responsible answer to this question, and indeed, the overarching answer to this appeal, is that Congress never intended to grant a civil action to the Attorney General.

The same conclusion is supported by an examination of three express refusals of modern Congresses to grant the Executive general injunctive powers in this field, which not only demonstrates explicit congressional intent not to create the power claimed here by the Attorney General but also reveals an understanding, unanimously shared by members of Congress and Attorneys General, that no such power existed. The first attempt to give the Attorney General broad power to seek injunctions against violations of citizens’ constitutional rights came in 1957. The House Judiciary Committee, responding to a proposal by Attorney General Herbert Brownell, Jr., drafted a bill amending 42 U.S.C. § 1985 to authorize the Attorney General to seek injunctions against violations of that section. See H.R.Rep.No. 291, 85th Cong., 1st Sess. 9-11 (1957), reprinted in [1957] U.S.Code Cong. & Ad.News, 1966, 1974-76. The proposed amendment to § 1985 was reported to the House as Part III of H.R. 6127, 85th Cong., 1st Sess. (1957), which was to become the Civil Rights Act of 1957. A majority of the Judiciary Committee recommended passage of H.R. 6127, noting that Part III would not “expand the rights presently protected,” but that “the proposal does create a new remedy.” H.R.Rep.No. 291, supra, at 10, [1957] U.S.Code Cong. & Ad.News at 1975. The Attorney General agreed, expressing the view that Part III was needed because under existing law “conspiracies to interfere with certain rights can be redressed only by a civil suit by the individual injured thereby.” Id. at 15, [1957] U.S. Code Cong. & Ad.News at 1980.

minority Judiciary opposed passage of H.R. 6127, but they attacked Part III with special vigor, finding it “truly shocking” that the Attorney General would be “endowed with the privilege of setting up law through injunction.” Id. at 45, [1957] U.S.Code Cong. & Ad.News at 2001 (Minority Report). The same concerns were expressed on the floor of the Senate.⁹ After much debate, the opposition prevailed; the Senate amended the bill by deleting Title III¹⁰ and the House passed the bill as amended.¹¹

The Attorney General contends that Congress’ rejection of Part III is irrelevant to the present case because the coverage of § 1985, which Part III would have amended, extends to “a single incident in which two persons conspire to harm a third person,” while the coverage of an implied civil action under §§ 241 and 242 would be limited to conspiracies of a “widespread and continuing nature.” Brief for Appellant at 31. Contrary to the government’s contention, however, § 241 requires only a simple conspiracy to deny a citizen his rights.¹² Nothing in the Attorney General’s theory would prevent the implication of lesser causes of action from §§ 241 and 242. No justification is offered for limiting the government’s right of action to “widespread” violations. The statutory language is broad; an implied civil remedy necessarily would encompass the power to bring precisely those suits expressly rejected by Congress’ refusal in 1957 to pass Part III.

In 1959, Congressman Celler introduced a more expansive version of Part III “to authorize the Attorney General to institute civil aetion[s] to enforce rights guaranteed by the Constitution.”¹³ A subcommittee of the House Judiciary Committee recommended that the Celler proposal be included in pending civil rights legislation, but the full Committee deleted it. H.R.Rep.No. 956, 86th Cong., 1st Sess. 3 (1959), reprinted in [1960] U.S.Code Cong. & Ad.News, 1939, 1940.

The Celler proposal also was offered on the floor of the Senate as an amendment to pending legislation. Supporters emphasized that the proposal would only create a new “remedy in a court of equity for acts which, under existing law, already are either the basis for criminal prosecutions or for damage suits,” and argued that “[t]he addition of equitable procedures to the means of enforcing all these rights would mark a great advance in the law.”¹⁴ Senate opponents condemned the proposal because it contained no limitations or guidelines on the “vast, far-reaching power, which the Attorney General would have,” the “power to proceed, at the expense and in the name of the Government, to enforce any so-called civil rights he could possibly read into the 14th amendment.”¹⁵ Senator Russell commented that it was “to the credit of the present Attorney General of the United States that he has said he did not want these powers.”¹⁶ Senator Ervin, who was regarded by his colleagues as a leading constitutional scholar,¹⁷ argued that the Celler proposal “cannot be reconciled with a due regard for sound Federal-State relations” because it would furnish the Attorney General with “arbitrary power” to supervise

the functions and powers of State and local governments in vital areas of our life.

By resorting to civil actions and proceedings under Part III, the Attorney General could virtually convert Federal district courts into administrative branches of the executive department of the Federal Government for the management of elections, schools, and similar activities of a local nature.¹⁸

The proposed amendment was tabled by the Senate two days after it was offered.¹⁹ Other efforts were made to revive the Cel-ler proposal and to annex it to the Civil Rights Act of I960²⁰ and other legislation, but they all failed.

The Attorney General argues that Congress’ rejection of the Celler proposal is irrelevant to any discussion of an implied right of action arising out of §§ 241 and 242, because the proposal would only have enabled the government to sue to enforce the equal protection clause of the fourteenth amendment, while the present suit attacks widespread violations of due process. Brief for Appellant at 33. This argument depends on a non sequitur. Sections 241 and 242 are designed to prevent violations of all fourteenth amendment rights, including both due process and equal protection. See, e. g., United States v. Price, 383 U.S. 787, 800-06, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966); United States v. Guest, 383 U.S. 745, 753, 86 S.Ct. 1170, 1175, 16 L.Ed.2d 239 (1966). If a civil remedy were to be inferred from those statutes, it could not be limited to due process. violations; and Congress’ refusal to grant a limited power to enjoin equal protection violations cannot be considered an implicit endorsement of the greater power to sue to protect both equal protection and due process.

A provision similar to Part III and the Celler proposal was included in an early draft of the legislation that would become the Civil Rights Act of 1964, but it was deleted without reaching the floor of either house of Congress. Title III of H.R. 7152, 88th Cong., 1st Sess. (1963), as recommended by a subcommittee of the House Judiciary Committee, would have authorized the Attorney General to institute civil actions to enjoin the denial of any right, privilege, or immunity secured by the Constitution or laws of the United States. See H.R.Rep.No. 914, 88th Cong., 1st Sess. 17 (1963), reprinted in [1964] U.S.Code Cong. & Ad.News, 2391, 2392; see also id. at 41, [1964] U.S.Code Cong. & Ad.News at 2411 (additional views of Rep. Kastenmeier); id. at 81, [1964] U.S.Code Cong. & Ad.News at 2450 (Minority Report). Attorney General Robert F. Kennedy testified in opposition to the proposed Title III when he appeared before the Judiciary Committee in October, 1963:

Title III would extend to claimed violations of constitutional rights in State criminal proceedings or in book or movie censorship; disputes involving church-state relations; economic questions such as allegedly confiscatory ratemaking or the constitutional requirement of just compensation in land acquisition cases; the propriety of incarceration in a mental hospital; searches and seizures; and controversies involving freedom of worship, or speech, or of the press.

Obviously, the proposal injects Federal executive authority into some areas which are not its legitimate concern and vests the Attorney General with broad discretion in matters of great political and social concern.

Id. at 82, [1964] U.S.Code Cong. & Ad.News at 2450 (Minority Report). The Judiciary Committee deleted the proposed Title III and reported H.R. 7152 with a substitute designed to authorize the Attorney General under certain circumstances to sue to enjoin racial segregation in public facilities owned or operated by a state or local government. Id. at 22, [1964] U.S.Code Cong. & Ad.News at 2397. After further amendment, the substitute was enacted as Title III of the Civil Rights Act of 1964, Pub.L.No. 88-352, §§ 301-304,- 78 Stat. 246 (codified at 42 U.S.C. §§ 2000b-2000b-3).

The history of Part III, the Celler proposal, and the proposed Title III demonstrates that Congress, even at the time it was taking dramatic and important steps toward the goal of protecting civil rights, was unwilling to grant the Attorney General more than a very limited power to interfere by injunction in the activities of state and local governments. Congress had three opportunities between 1957 and 1964 to authorize the Attorney General to bring lawsuits of the type that we now consider. It refused on each occasion because this authority would permit a dramatic and unnecessary shift of power from state and local governments to the Attorney General. The government now argues that this history is irrelevant to this case because two of the proposals were more limited than the authority it now claims. This view not only depends on a non sequitur, but also overlooks the fundamental objections raised by the opponents of each of the three proposals, that they would grant the Attorney General excessive authority over state and local governments.

We conclude, therefore, that the history of the Reconstruction era legislation reveals an implicit legislative intent, and that the modern history demonstrates an explicit intent, to deny the government the right of action asserted here.

C.

What has been said in parts A and B is also applicable to an evaluation of the third Cort factor: whether the implied action is consistent with the underlying purposes of the legislative scheme. Congress has by explicit legislation established a comprehensive and detailed remedial structure for the protection of constitutional rights, and it has repeatedly refused to sanction federal executive intervention in local affairs in order to protect those rights. We think the underlying purposes of the legislative scheme are threefold: to permit the victims of constitutional violations to obtain redress, to provide for federal criminal prosecutions of serious constitutional violations when state criminal proceedings are ineffective for the purpose of deterring violations, and,to strike an appropriate balance between the protection of individual rights from state infringement and protection of state and local governments from unnecessary federal interference. Permitting this action to proceed would upset that balance and therefore would be inconsistent with the underlying purposes of the statutory scheme.

D.

The fourth test of Cort v. Ash requires us to consider whether the cause of action is 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. We think the answer to this question is double-edged at best, and it certainly does not establish that Congress created an in-junctive action in the government’s favor when it enacted §§ 241 and 242.

The Attorney General argues that the federal government has a central role in protecting individuals from violations of the Constitution. This argument is facially appealing because the protection of federal rights clearly is a federal concern. However, the argument blurs the distinction between the roles of the federal courts, the federal legislature, and the federal executive. It also ignores the reverse side of the same coin: this lawsuit represents an attempt by the federal executive to intervene on a grand scale in the workings of a local government, an area that is manifestly the concern of the states and not the federal government. Federal courts must be “alert to adjust their remedies” to grant relief for invasions of federally protected rights, Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), but they are equally bound to give proper recognition to the principles of federalism that underlie the very structure of the Constitution, from which the federal courts and the federal Executive alike derive their authority.

This observation is reinforced by an examination of the fourth Cort factor in the context of its formulation. In Cort, the Supreme Court declined to create a new federal action in an area of corporate law traditionally subject to state control. 422 U.S. at 84-85, 95 S.Ct. at 2090. In Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963), cited in Cort in support of the fourth factor, the Supreme Court refused to find an implied federal action for abuse of the subpoena power by a federal officer, in part because damage actions against federal officials for abuses of power “are usually governed by local law.” Id. at 652, 83 S.Ct. at 1445. This case, however, involves an attempt to impose federal authority in an area of much greater local concern, on a scale so massive that Cort and Wheeldin pale by comparison. The question here is whether the Attorney General has power to “sweep across the nation, thrusting himself into the policy-making machinery at every level of government from the village hall to the governor’s mansion.” United States v. City of Philadelphia, 482 F.Supp. at 1269. If the federal courts are bound by federalism concerns to leave to state courts issues of corporate governance and torts committed by federal officers, surely the Justice Department is equally bound to recognize strict limits to its power to intervene in the workings of the executive branch of local and state governments.

E.

We conclude that the first three factors articulated in Cort v. Ash weigh heavily against the argument that when it enacted §§ 241 and 242 Congress by implication authorized the Attorney General to sue for injunctions against widespread violations of constitutional rights. Application of the fourth criterion does not yield as clear an answer as the first three, but we think that on balance the massive reach of the asserted federal power to interfere in the workings of local governments compels us to hold that it would be inappropriate to infer a right of action in the government’s behalf. Even if the fourth factor weighed clearly in the government’s favor, however, our obligation to recognize the primary role of Congress in enforcing the fourteenth amendment, see, e. g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), would require us to assign controlling weight to the unambiguous expressions of legislative intent revealed by application of the first three factors. See Touche Ross, 442 U.S. at 575-76, 99 S.Ct. at 2489. Therefore, we hold that the United States does not have implied statutory authority to sue a local government or its officials to enjoin violations of citizens’ constitutional rights.

IV.

The Attorney General’s second theory for maintaining this lawsuit rests on the fourteenth amendment itself and on the President’s duty under Article II, § 3 to “take Care that the Laws be faithfully executed.” His premise is that because the national government is the “guarantor” of the rights of individuals, we must provide him with a remedy under the Constitution. Relying on Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), he argues that he has a right of action even though Congress has not exercised its power under § 5 of the fourteenth amendment to create one. Brief for Appellant at 39-42.

Carlson, Davis, and Bivens do not support the government’s case. Those decisions rest on the principle that

the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their jus-ticiable constitutional rights.

Davis, 442 U.S. at 242, 99 S.Ct. at 2275. See also Carlson, 446 U.S. at 18, 100 S.Ct. at 1472; Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. That principle does not apply to the government’s action in this case. The appellant is not a member of the class whose rights have been violated, but an officer of the federal government seeking to vindicate the constitutional rights of citizens. To allow this action to proceed under the “constitutional tort” theory of Bivens and its progeny would be to ignore, not merely to extend, the ratio decidendi of those decisions.

In addition, we note that the Supreme Court has held that a cause of action that otherwise would be recognized under the Bivens theory “may be defeated ... in two situations.”

The first is when defendants demonstrate “special factors counselling hesitation in the absence of affirmative action by Congress.” [Bivens,] 403 U.S., at 396, 91 S.Ct. at 2004; Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 2276, 60 L.Ed.2d 846 (1979). The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, at 397, 91 S.Ct. at 2005; Davis v. Passman, 442 U.S., at 245-247, 99 S.Ct. at 2276.

Carlson, 446 U.S. at 18-19, 100 S.Ct. at 1472. The second test cannot be applied literally in this case, but we think it weighs against the government’s action because Congress has enacted a comprehensive remedial scheme while deliberately refusing to create the right of action asserted here.²¹ More important, however, and by itself sufficient to require rejection of the government’s Bivens theory if it were valid otherwise, this case involves important “special factors counselling hesitation in the absence of affirmative action by Congress.” Recognition of the asserted right of action would violate the constitutional scheme of separation of powers as exemplified and embodied in § 5 of the fourteenth amendment and would trample on important constitutional principles that underlie and give life to our federal system.

Section 5 of the fourteenth amendment confers on Congress, not on the Executive or the Judiciary, the “power to enforce, by appropriate legislation, the provisions of this article.” The Supreme Court has repeatedly recognized the central role of Congress in establishing appropriate mechanisms to enforce the fourteenth amendment. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); cf. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (§ 2 of the fifteenth amendment). “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed.... It is the power of Congress which has been enlarged.” Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1879). Congress has exercised its power to “enforc[e] the prohibitions” on many occasions, but it has refused to grant the Executive and the Judiciary the authority that now is asserted. See part III B, supra. In our view, it would be entirely inappropriate for a federal court to overrule the explicit decisions of Congress not to increase federal executive and judicial authority over state and local governments in this manner.

In addition, the Supreme Court in the last decade has repeatedly recognized the importance of a proper respect for the independent roles of state and local governments in our federal system. See, e. g., Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Judge Ditter wrote eloquently and persuasively for the court below that to permit this action to proceed “would be to vest an excessive and dangerous degree of power in the hands of the Attorney General”:

The point is that the power which the Attorney General claims in this case is simply not compatible with the federal system of government envisioned by the Constitution. This power, in essence, would permit the Justice Department to bring a civil suit against any state or local administrative body merely because the Attorney General and his subordinates have determined that the defendant’s operating policies and procedures violate any one of the civil rights guaranteed to citizens by the Constitution and laws of the United States. The purpose of such a lawsuit would be to obtain an injunction altering the challenged procedures. Quite literally, there would be no end to the local and state agencies, bureaus, offices, departments, or divisions whose day-to-day operating procedures could be challenged by suit, and changed by injunction.

It is well to remember that this case does not present an attack on brutality, per se. Rather, the challenge here is to policies, practices and procedures of the police department that are said to violate constitutional rights because they foster brutality. The conceivable variations on this lawsuit are practically infinite.

United States v. City of Philadelphia, 482 F.Supp. at 1268. We agree that judicial recognition of the asserted right of action would violate important principles of federalism and separation of powers.

The Attorney General’s apparent (albeit oblique) response is that the asserted right of action will be limited to “exceptional” cases involving “widespread and continuing” violations, for which the remedies expressly provided are not “adequate.” See Brief for Appellant at 31, 41-42, Reply Brief at 10. There are several problems with this argument. First, the asserted standards are so vague as to lack real content. Second, the fundamental objection is to permitting the federal executive to assume authority over state and local governments. If that power is once granted, it will take an active judiciary indeed to confine it within principled limits. Third, even if the government’s authority could be confined to “exceptional” cases, judicial assertion of the power to compel drastic and far-reaching changes in local governments would be inconsistent with a proper division of power in a federal system.

We hold, therefore, that the fourteenth amendment does not implicitly authorize the United States to sue to enjoin violations of its substantive prohibitions.

V.

Our conclusion, that neither §§ 241 and 242 nor the fourteenth amendment create in the government a right to maintain this action for an injunction, is bolstered by an additional consideration: the longstanding and uniform agreement of all concerned that no such right of action has ever existed. Our discussion of the modern legislative history in part III B, supra, demonstrates that neither Attorneys General nor Congress between 1956 and 1964 believed that either Congress or the Constitution had created this power sub silentio. Those officials did not act out a meaningless charade, debating whether to create what they believed already existed, but in a serious and responsible manner decided for reasons of constitutional principle and sound public policy not to create new federal authority over state and local governments.

The same understanding, that the United States may not sue to enjoin violations of individuals’ fourteenth amendment rights without specific statutory authority, has been shared by almost every court that has had the opportunity to pass on the question. In United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979), and in United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), the courts of appeals affirmed district court decisions and held that the Attorney General may not sue to vindicate the constitutional rights of institutionalized mentally retarded citizens without express statutory authority. In United States v. Elrod, No. 76-C-4768 (N.D.Ill. May 16, 1978), rev’d on other grounds, 627 F.2d 813 (7th Cir. 1980), the district court held that the Attorney General had no standing to sue to protect the constitutional rights of local prisoners. The Court of Appeals reversed and remanded because intervening legislation, the Civil Rights of Institutionalized Persons Act, Pub.L.No. 96-247, § 3, 94 Stat. 350 (1980), provided explicit statutory authority for the action.²² Three Justices of the Supreme Court have expressed their opinion that the United States does not have authority under either the fourteenth amendment or §§ 241 and 242 to seek an injunction against state corrections officials. Estelle v. Justice, 426 U.S. 925, 928-29, 96 S.Ct. 2637, 2638, 49 L.Ed.2d 380 (1976) (Rehnquist, J., joined by Burger, C. J., and Powell, J., dissenting from denial of petition for certio-rari). To our knowledge, the only decision that has held squarely that the United States may sue to enjoin “large-scale denials of due process” is a much criticized district court decision, United States v. Brand Jewelers, Inc., 318 F.Supp. 1293, 1299-1300 (S.D.N.Y.1970). We agree with the numerous critics of that decision,²³ and we think it is significant that the United States does not rely on it here.

We note also that as recently as two years ago, only eight months before the complaint initiating this action was filed, Assistant Attorney General Drew S. Days, III, head of the Civil Rights Division, who argued for the government in this case, publicly stated his opinion that §§ 241 and 242 do not give the Justice Department authority to seek injunctions against violations of civil rights. Addressing the shortcomings of criminal prosecutions under §§ 241 and 242 as a means of deterring police brutality, Mr. Days stated:

A prosecution for police misconduct does not address itself to the activities of a police department as such or of a city administration per se, but only to the actions of one or more officers in a given circumstance, framed by and limited to the wording of the criminal indictment. Moreover, criminal prosecutions are reactive litigations involving only the calling to account of individuals who have already engaged in acts of misconduct. Any conscious effort to anticipate instances of police misconduct and head them off before they occur must arise from some other source than the Federal criminal code.

Police Practices and the Preservation of Civil Rights, A Consultation Sponsored by the United States Commission on Civil Rights, Washington, D.C., December 12-13, 1978, at 141 (emphasis added). We agree with Mr. Days’ 1978 statement that the criminal code does not authorize the Justice Department to seek prospective relief. Cf. United States v. Cooper Corp., 312 U.S. 600, 614, 61 S.Ct. 742, 748, 85 L.Ed. 1071 (1941) (“the conviction that no right to sue had been given the Government, rather than a supine neglect to resort to an available remedy, seems to us the true explanation” for the failure of the United States to seek treble damages under the Sherman Act until fifty years after its enactment).

In sum, the Attorney General argues that he possesses implied authority under the Civil Eights Acts and under the fourteenth amendment to request far-reaching mandatory injunctions, notwithstanding three separate refusals of Congress to grant him this authority and a widely-shared understanding that the authority does not exist. He also has looked to the courts, and applications similar to this have been rejected in the fourth, seventh, and ninth circuits. Unabashed, he has continued to shop for a forum that will lend its ear. He will not find it here.

We think that what he asks is unnecessary, because other avenues of relief are available. What he seeks is a grant of unbridled authority that does violence to the delicate balance of power among the legislative, executive, and judicial branches of government. What he requests strikes at the heart of fundamental comity between federal and state governments. Finally, what is sought — government by injunction — is anathematic to the American judicial tradition, succinctly and eloquently described by Justice Marshall:

The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws.... It [does] not provide for government by injunction in which the courts and the Executive Branch can “make law” without regard to the action of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the moment do not justify a basic departure from the principles of our system of government.

New York Times Co. v. United States, 403 U.S. 713, 742-43, 91 S.Ct. 2140, 2155, 29 L.Ed.2d 822 (1971) (Marshall, J., concurring) (citation omitted).

VI.

Appellant’s remaining claims rest on allegations of racial discrimination in the administration of certain federally funded programs.²⁴ The district court held that the Attorney General has explicit statutory authority to bring suit against discriminatory administration of federal funds, 482 F.Supp. at 1259, but it subsequently granted appel-lees’ motion to dismiss these claims for failure to plead with sufficient specificity. Id. at 1274.²⁵ Although the district court offered it “a reasonable opportunity to file an amended complaint,” id. at 1279, the government declined the offer and moved for entry of final judgment, stating that “it is in the interest of the United States not to amend the complaint.” App. at 154. We now must determine whether the district court erred in requiring a more specific complaint.

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” It must provide the defendants with “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see generally C.A. Wright, Handbook of the Law of Federal Courts § 68 (3d ed. 1976). The rule is well established in this circuit that a civil rights complaint that relies on vague and conclusory allegations does not provide “fair notice” and will not survive a motion to dismiss.²⁶ We require a modest degree of factual specificity in civil rights complaints because we are concerned that

[a] substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants— public officials, policemen and citizens alike — considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims.

Valley v. Maule, 297 F.Supp. 958, 960-61 (D.Conn.1968) (quoted with approval in Ro-tolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976), and in Kauffman v. Moss, 420 F.2d 1270, 1276 n.15 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970)). This reasoning demands that the rule be applied here. Like a civil action under 42 U.S.C. § 1983, this action seeks relief against a local government and its officials for the protection of citizens’ constitutional rights; and like a § 1983 action, this action threatens massive federal interference with a local government. We agree with the conclusion of the district court

that this case presents an enormous potential for causing “public officials, policemen and citizens alike — considerable expense, vexation and perhaps unfounded notoriety.” Quite naturally, this case has generated a great deal of publicity. At stake are the reputations of numerous individual defendants, some prominent and some obscure, as well as the public image of the entire Philadelphia Police Department. Surely, such a case demands specificity of pleading. If the charges contained in the complaint are frivolous, they should be dismissed at the earliest possible stage. On the other hand, if there is genuine substance to these serious allegations of racial discrimination, the public interest requires a speedy and expeditious adjudication. Specificity of pleading is essential if these important goals are to be served.

482 F.Supp. at 1278 (footnote omitted). We believe also that in this case a specific pleading requirement will help to implement the congressional policy of forbidding federal “direction, supervision, or control” of local police departments.²⁷ Elimination of frivolous and insubstantial claims²⁸ at the pleading stage in cases of this nature will protect local police officials from being intimidated by the threat of burdensome discovery, and a more specific complaint will enable the district court to protect local governments’ files from overbroad and irrelevant inquiries.

We also agree with the district court that a requirement of specificity under these circumstances works no hardship on the plaintiff. “This is no more than the courts of the Third Circuit require of a prisoner, uncounselled and unlearned in the law with no investigators and only the most modest of legal resources, who brings a civil rights action.” Id. at 1278-79. This complaint was signed by six government attorneys, including the Attorney General himself, so the government has a formidable arsenal of legal armament at its disposal. Moreover, it is public knowledge that the government’s complaint was preceded by an eight-month investigation. Id. at 1271, 1279.

We conclude finally that the complaint was correctly dismissed. Its allegations of racial discrimination can only be characterized as vague, conclusory, and inconsistent.²⁹ It fails to identify the specific “program or activity” of the Police Department which has expended federal funds in .an illegal manner.³⁰ It does not in any manner allege facts showing a nexus between acts of racial discrimination and the named individual defendants³¹ or between the expenditure of federal funds and incidents of police abuse, nor does it indicate how the city qua city practiced discrimination. We hold, therefore, that the complaint neither provides “fair notice of what the plaintiff’s claim is and the grounds upon which it rests” nor “show[s] that the pleader is entitled to relief” against any defendant.

The United States argues that its complaint should not have been dismissed because it has supplied specific factual information in response to defense interrogatories. Brief for Appellant at 43-44, 46-47. It is true that one function of discovery in federal court litigation is to narrow the issues for trial. However, one function of complaints, as we have noted, is to give defendants fair notice of plaintiffs’ claims and the grounds on which they rest and to show why the plaintiff is entitled to relief. In a civil rights case, seeking federal relief against agencies and officers of state and local governments, we require the pleadings to provide more specific notice, for several reasons. Experience has demonstrated the great potential for frivolous and insubstantial suits, brought for purposes of political harassment,³² to cause defendants to suffer “expense, vexation and perhaps unfounded notoriety.” In addition, fundamental principles of comity and federalism demand that federal court intervention in the orderly procedures of state and local governments be limited to serious cases presenting some realistic basis for believing that the plaintiff will be able to produce evidence of violations of federal law. These principles have even greater weight in this case because federal court intervention is sought by the federal Executive even though Congress has explicitly stated its determination to place strict limits on federal executive interference with local police departments. Before being permitted to proceed to discovery, with its attendant potential for disrupting local government activities, the United States should have filed a complaint providing fair notice that there were substantial issues of unlawful racial discrimination related to particular federal programs, practiced by the City and the named defendants, for which a federal court could provide a remedy.

In sum, we will hold the Attorney General to the same pleading requirements we demand of a private litigant who brings an action under the Civil Rights Acts. The appellant failed to satisfy these standards, and it deliberately rejected an opportunity to amend its complaint. We find no error in the district court’s disposition of this case.

VII.

The judgment of the district court will be affirmed in all respects.

1 . We think it likely, however, that a more stringent test should be employed when a party claims an implied right to an injunction, which is an extraordinary remedy, than when he seeks damages. “[A]n essential prerequisite for traditional equity jurisdiction” is the inadequacy of available legal remedies and the existence of irreparable injury. United States v. American Friends Service Comm., 419 U.S. 7, 11, 95 S.Ct. 13, 15, 42 L.Ed.2d 7 (1974) (per curiam).

2 . The Court in Transamerica noted that the statute in question provided for criminal penalties, SEC injunctive actions, and SEC administrative sanctions. In view of those express provisions, the Court found it “highly improbable that ‘Congress absentmindedly forgot to mention an intended private action.’ ” 444 U.S. at 20, 99 S.Ct at 247 (quoting Cannon v. University of Chicago, 441 U.S. at 742, 99 S.Ct. at 1981 (Powell, J., dissenting)). We find that observation equally applicable to the injunctive action asserted here.

3 . As an inferior court in the federal hierarchy, we are, of course, compelled to apply the law announced by the Supreme Court as we find it on the date of our decision. Cf. Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) (applying a statute enacted while the case was pending on appeal).

4 . The petitioners in Wyandotte did not dispute the government’s right to proceed in rem against the vessel and its cargo, but the proceeds of the sale were only $85,000 while the costs of removal were $3,081,000. 389 U.S. at 200 n.12, 88 S.Ct. at 385.

5 . Moreover, we agree with the appellees that comparing a “single civil action” to multiple criminal prosecutions is an illusion. The “single civil action” contemplated would involve perhaps scores of “minitrials,” see, e. g., Rizzo v. Goode, 423 U.S. 362, 367, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976), and each violation of any injunction that might be entered would itself require a full scale trial. It may be that the “single civil action” would be far more cumbersome and “inadequate” than criminal prosecutions.

6 . We state this as an assumption both because of the greater burden imposed on a plaintiff who invokes equity jurisdiction, see note 1 supra, and because recent Supreme Court decisions have cast doubt on the continued vitality of some of the four Cort v. Ash factors. For example, in Touche Ross, 442 U.S. at 575-76, 99 S.Ct. at 2489, the Court held:

We need not reach the merits of the arguments concerning the “necessity” of implying a private remedy and the proper forum for enforcement of the rights asserted ..., for we believe such inquiries have little relevance to the decision of this case. It is true that in Cort v. Ash, the Court set forth four factors that it considered “relevant” in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, [95 S.Ct. at 2087] — are ones traditionally relied upon in determining legislative intent.

7 . The government’s assertion of a “duty” to prevent violations of the Constitution simply cannot withstand critical analysis. The argument lacks any foundation in the language, structure, or history of the predicate statutes. It fails to identify any person or class of persons to whom the asserted duty is owed or what rights those persons would have if the United States failed to act. It also overlooks the Supreme Court’s critical evaluation of a similar assertion in a related context:

Respondents posit a constitutional “duty” on the part of petitioners (and a corresponding “right” of the citizens of Philadelphia) to “eliminate” future police misconduct; a “default” of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in petitioners’ stead and take whatever preventive measures are necessary, within its discretion, to secure the “right” at issue. Such reasoning, however, blurs'accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in [42 U.S.C.] § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now. "

Rizzo v. Goode, 423 U.S. 362, 376, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976).

8 . See note 2 supra.

9 . Senator Saltonstall, for example, argued against permitting “direct [federal] interference with home rule, local administration, and State administration.” 103 Cong.Rec. 12541 (1957). See also id. at 12530 (remarks of Senator Ke-fauver); id. at 12549-50 (remarks of Senator Hickenlooper); id. at 12553-54 (remarks of Senator Mundt); id. at 12564 (statement by Senator Bricker).

10 . Id. at 12565.

11 . Id. at 16112-13.

12 . See, e. g., United States v. Ellis, 595 F.2d 154 (3d Cir.), cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (1979).

13 . 106 Cong.Rec. 6308 (1960) (remarks of Congressman Celler). Unlike the 1957 version of Part 111, the Celler proposal would not have amended any existing civil rights statute. It would have authorized the Attorney General, upon receipt of a signed complaint from any person alleging a denial or a threatened denial of equal protection of the laws because of race, color, religion, or national origin, to certify that in his judgment the complainant was unable to seek effective legal protection, and to institute a civil action for preventive relief in the name of the United States. Id.

14 . Id. at 5175 (remarks of Senator Keating). See also id. at 5153 (remarks of Senator Church); id. at 5177 (remarks of Senator Case).

15 . Id. at 5084 (remarks of Senator Stennis).

16 . Id. at 5105. Attorney General William Rogers had stated his opposition to the Celler proposal in testimony before a House subcommittee. Civil Rights: Hearings on Miscellaneous Bills Regarding the Civil Rights of Persons within the Jurisdiction of the United States Before Subcomm. No. 5 of the House Comm, on the Judiciary, 86th Cong., 1st Sess., Ser. No. 5 at 222-25 (1959).

17 . See 120 Cong.Rec. 41735-45 (1974).

18 . 106 Cong.Rec. 5160.

19 . Id. at 5182.

20 . Pub.L.No. 86-449, 74 Stat. 86 (1960).

21 . See parts II and III B, supra. It is not surprising that Congress in 1866, 1870, 1871, 1957, 1960, 1964, and 1968 did not explicitly declare that the remedies it had created were equally effective substitutes for recovery directly under the Constitution, because the “constitutional tort” theory was not announced by the Supreme Court until Bivens was decided in 1971. Moreover, we note that the Court in Carlson cautioned that Congress need not recite any specific “magic words” to make an explicit declaration; rather, “our inquiry at this step in the analysis is whether Congress has indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy.” 446 U.S. at 19 n.5, 100 S.Ct. at 1472 n.5.

22 . The same Attorney General who filed this civil action, speaking through Assistant Attorney General Days, advocated passage of the Civil Rights of Institutionalized Persons Act. See Civil Rights for Institutionalized Persons: Hearings on H.R. 2439 and H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 95th Cong., 1st Sess. 3 (1977) (testimony of Hon. Drew S. Days, III). The act authorizes the Attorney General to institute civil actions to redress systematic deprivations of the rights of institutionalized persons. The history of this legislation both demonstrates that no member of Congress believed that the Justice Department already possessed the broad implied authority that it now claims and emphasizes the fact that Congress frequently has acted to give the Department explicit authority to engage in limited areas of civil rights litigation:

In the past, Congress has not hesitated to give the Attorney General statutory authority to engage in litigation to secure citizens’ basic constitutional rights where evidence has tended to show a widespread denial of such rights. In seeking to remedy discrimination in voting, public accommodations, employment, and housing, Congress has authorized the Attorney General to commence litigation to correct a “pattern or practice” of unlawful conduct in such areas.39

39. E. g. Title VI of the Civil Rights Act of 1960, 42 U.S.C. 1971(e) (voting); title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(a) (employment); title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-5(a) (public accommodations); title .VIII of the Civil Rights Act of 1968, 42 U.S.C. 3613 (housing). H.R.Rep.No. 80, 96th Cong., 1st Sess. 15 & n. 39 (1979); see also S.Rep.No. 416, 96th Cong., 1st Sess. 22 & n. 64 (1979), reprinted in [1980] U.S.Code Cong. & Ad.News 1936, 1952 & 1953 n. 64. Obviously, if the Attorney General’s theory is correct, today, it would have been unnecessary to request specific authority to bring civil actions for voting in 1960, employment and public accommodations in 1964, housing in 1968, and institutionalized persons in 1980.

23 . See, e. g., United States v. City of Philadelphia, 482 F.Supp. 1248, 1265-66 (E.D.Pa.1979); United States v. Solomon, 419 F.Supp. 358, 365-68 (D.Md.1976), aff'd, 563 F.2d 1121 (4th Cir. 1977); id., 563 F.2d at 1128; United States v. School District of Ferndale, Michigan, 400 F.Supp. 1122, 1129-30 (E.D.Mich.1975), aff'd in pertinent part, 577 F.2d 1339 (6th Cir. 1978). See also 85 Harv.L.Rev. 1566, 1576-79 (1972); 84 Harv.L.Rev. 1930 (1971); 37 Brooklyn L.Rev. 426 (1971); 17 Wayne L.Rev. 1287 (1971).

24 . Counsel for the government stipulated at oral argument that it now relies on only two statutes, the State and Local Fiscal Assistance Act of 1972, as amended (the “Revenue Sharing Act”), and the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Transcript of oral argument 25-726.

The Revenue Sharing Act, as amended, 31 U.S.C. § 1242, provides in part:

(a)(1) In general. — No person in the United States shall, on the ground of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity of a State government or unit of local government, which government or unit receives funds made available under subchapter I of this chapter....

(g) Whenever the Attorney General has reason to believe that a State government or a unit of local government has engaged or is engaging in a pattern or practice in violation of the provisions of this section, the Attorney General may bring a civil action in an appropriate United States district court. Such court may grant as relief any temporary restraining order, preliminary or permanent injunction, or other order, as necessary or appropriate to insure the full enjoyment of the rights described in this section, including the suspension, termination, or repayment of funds made available under subchapter I of this chapter, or placing any further payments under subchapter I of this chapter in escrow pending the outcome of the litigation.

The nondiscrimination provisions of the Crime Control Act, as amended, 42 U.S.C. § 3789d(c)(l), (3), are substantively identical to those of the Revenue Sharing Act for purposes of this appeal.

25 . Appellees moved for dismissal under Fed.R. Civ.P. 12(b), but the district court treated the motion as seeking judgment on the pleadings under Rule 12(c) because appellees had previously answered the complaint. 482 F.Supp. at 1275 & n.2.

26 . See, e. g., Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976); Kauffman v. Moss, 420 F.2d 1270, 1275-76 & n.15 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967).

We are not alone in requiring civil rights complaints to be pleaded with some factual specificity. See, e. g., Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979); Anderson v. Sixth Judicial District Court, 521 F.2d 420, 420-21 (8th Cir. 1975); Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620, 622-23 (2d Cir. 1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973).

27 . The Crime Control Act, in the same section that authorizes the Attorney General to sue to prevent discrimination in the administration of federal funds, provides:

(a) Nothing contained in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.

42 U.S.C. § 3789d(a) (emphasis added).

28 . We do not hold that the government’s case against the City was actually frivolous or insubstantial, but only that its complaint provides an inadequate basis for us to determine whether its allegations were frivolous or serious.

29 . The central allegation of unlawful discrimination underlying the funding claims is as follows: “The practices, policies, and procedures set forth in paragraphs 29 through 42, insofar as they have a disparate impact upon black and Hispanic persons, have been initiated and maintained by the defendants with discriminatory intent.” Complaint, fl 48, App. at 32.

30 . The Attorney General argues on appeal that the entire Philadelphia Police Department is á “program or activity” within the meaning of the funding statutes, and that discriminatory practices occurring anywhere within the Department authorize him to seek an injunction remaking the entire Department. We cannot agree. The Attorney General’s statutory authority to sue was created under the spending power given Congress by Article I, § 8 of the Constitution, and it only empowers him to see that federal funds are not expended in a discriminatory manner. Cf. Dougherty County School System v. Harris, 622 F.2d 735 (5th Cir. 1980) (termination of federal funds pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681); Board of Public Education of Taylor County, Florida v. Finch, 414 F.2d 1068 (5th Cir. 1969) (fund termination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d). The government relies heavily on the regulations promulgated under the two funding statutes, but those regulations do not support its position. 28 C.F.R. § 42.202(g) (1979) (Justice Department regulation under the Crime Control Act) defines “program or activity” as “the operations of the agency or organizational unit of government receiving or substantially benefiting from the financial assistance awarded; e. g., a police department or department of corrections.” 31 C.F.R. § 51.51(i) (1980) (Revenue Sharing regulation issued by Treasury Department) is substantially identical, including the same examples.' These regulations do not define “program” as the entire “agency or organizational unit,” however, but as the “operations” of such an agency or unit which receive or substantially benefit from federal assistance.

31 . Although the individual defendants were entitled to fair notice of the nature of their alleged wrongdoing in the district court, this is true a fortiori now. The government has emphasized throughout this litigation that it was suing the named defendants in their official capacities only, and since the last Philadelphia municipal election and the advent of a new city administration there have been wholesale changes in the list of named defendants. Philadelphia Mayor Frank L. Rizzo has been replaced by Mayor William J. Green; Managing Director Hillel S. Levinson, by W. Wilson Goode; Director of Finance Irvin R. Davis, by G. Edward DeSeve; Police Commissioner Joseph F. O’Neill, by Morton B. Solomon; Deputy Police Commissioners Harry G. Fox and Morton B. Solomon, by William Devlin and Donald Gra-vatt; Prisons Superintendent Edmund Lyons, by David Owens; and from a list of eleven Chief Inspectors of the Philadelphia Police Department, the names of Richard Bridgeford, Joseph Golden, James Herron, Ferdinand Spie-wak, Edwin S. Parker, and William Devlin have been deleted and replaced by Robert Armstrong, Francis X. O’Shea, and four unnamed successors to the positions and functions of named defendants.

32 . In part VI of its opinion dismissing the §§ 241 and 242 and fourteenth amendment claims, entitled “Abuse of Power in this Lawsuit,” the district court strongly suggested that such purposes may lie behind the decision to bring this action, its timing, and other tactics employed. 482 F.Supp. at 1270-73.