Rehearing and Suggestion for Rehearing En Banc Denied November 22, 1995.
RIPPLE, Circuit Judge.
The Director of the Illinois Department on Aging appeals the decision of the district court, which determined that relevant provisions of the Older Americans Act (OAA), 42 U.S.C. §§ 3001-3058ee, were enforceable under 42 U.S.C. § 1983, and subsequently held that Illinois' formula for distributing funds to the State's older individuals violated the OAA. The City of Chicago cross appeals. It challenges the district court's determination that the state formula did not violate regulations promulgated pursuant to Title VI of the 1964 Civil Rights Act. It also contends that the district court erred in holding that it was barred by the Eleventh Amendment from ordering the State to disburse additional OAA funds to the City in the future to remedy the State's past violations. For the reasons that follow, we reverse the district court's decision that a private cause of action exists under § 1983 for enforcing the relevant provisions of the OAA, and remand with instructions that the district court dismiss the City's claim. We affirm the district court's decision that the formula does not violate regulations promulgated pursuant to Title VI.
A. Statutory Scheme
Under the Older Americans Act, 42 U.S.C. §§ 3001-3058ee, the federal government distributes funds to the states each year. The states use these funds to provide a wide
Pursuant to 1992 amendments to the OAA, each state agency is required to submit its proposed distribution formula to the federal Administration on Aging (AoA) for "approval." 42 U.S.C. § 3025(a)(2)(D); see also 45 C.F.R. §§ 1321.77-1321.83 (setting forth hearing procedures); prior versions of the statute required merely an opportunity for federal "review and comment." Under present law, however, the federal AoA may not approve a state plan unless it determines that the state agency's intrastate funding formula complies with the requirements of 42 U.S.C. § 3025(a)(2)(C). See 42 U.S.C. § 3024(c). Section 3025(a)(2)(C) requires that each state agency:
42 U.S.C. § 3025(a)(2)(C). The statute defines "greatest economic need" as "the need resulting from an income level at or below the poverty line." Id. § 3002(29). "Greatest social need" is defined as
42 U.S.C. § 3002(30).
In 1992, Maralee Lindley, Director of the IDoA, developed a distribution formula that allocated Illinois' OAA funds based upon a series of population factors. Pursuant to 89 Ill.Admin.Code § 230.45(c), Lindley did not include any factors that failed to account for at least five percent of the State's older individuals.
Population 60 years and older (60 + Factor) 41% 60 + and living in poverty (Poverty Factor) 25% 60 + and a member of a minority group (Minority Factor) 10% 60 + and living alone (Living Alone Factor) 7.5% Population 75 years and older (75 + Factor) 7.5% 60 + and not residing in a Metropolitan Statistical Area (Rural Factor) 9%
C. Earlier Proceedings
Lindley submitted her formula to the federal Administration on Aging and obtained its approval. Subsequently, the City of Chicago (City) challenged Lindley's formula in this action in the district court. The City argued that Lindley's formula violated the OAA because it failed to consider factors relating to disability and language barriers. The City also alleged that the funding formula discriminated against minorities in violation of Title VI of the 1964 Civil Rights Act and its implementing regulations. Both parties moved for summary judgment.
The district court ruled in the City's favor on its OAA claim. Initially, the court determined that the OAA was not too vague to create rights enforceable under 42 U.S.C. § 1983.
The district court subsequently concluded that Lindley's formula did not "take into account" older individuals with disabilities or language barriers. It rejected Lindley's claim that the minority and 75+ factors already accounted for these individuals. Although it recognized that these factors did in fact distribute increased funds on the basis of disability and language barriers, the court reasoned that the minority factor overlooked residents of European descent who did not speak English well and that the 75+ factor was underinclusive of those with disabilities. It noted that census data identifying those with "mobility" or "self-care" limitations was more accurate than the 75+ proxy. Accordingly, it granted summary judgment to the City, and ordered Lindley to develop a new formula. The court rejected, however, the City's request for an order requiring Lindley to reallocate funds to remedy the harm caused by the underinclusive distribution formula. It reasoned that this claim was barred by the Eleventh Amendment and noted that, in any event, the City had not offered a concrete measure of damages.
The district court rejected the City's Title VI claims. It concluded that the City's intentional discrimination claim was without merit because the City had not shown that Lindley chose the rural and 75+ factors because they discriminated against minorities. With respect to the City's disparate impact claim, the district court stated that the City had not shown that Lindley's formula had a substantially disparate impact on
We review de novo a district court's grant of summary judgment. Green v. Shalala, 51 F.3d 96, 99 (7th Cir.1995). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. In the course of our review, we turn first to the arguments at issue in Director Lindley's appeal.
A. Lindley's Appeal
Lindley submits that the OAA does not create rights privately enforceable under § 1983. She contends specifically that the statutory command that funding formulae take factors "into account" is too ambiguous to be judicially enforceable. She also maintains that the amendment to the OAA that required federal approval of each state's funding formula makes clear that Congress did not intend that the OAA be enforced by private citizens. Alternatively, Lindley argues that her formula adequately accounts for the State's disabled and linguistically isolated. She submits that her existing formula, through its 75+ and minority factors, directs funds toward PSAs on the basis of their number of disabled and linguistically isolated individuals and thus "takes account of" them. She also contends that the phrase "best available data" does not require use of exclusive factors for language barriers and disabilities and argues that nothing in that requirement prohibits her from eliminating characteristics affecting too small a portion of the population to be useful measuring criteria.
The City responds that the OAA creates a private right of action under § 1983. The statutory language, the City submits, unambiguously requires Lindley to develop a formula that takes into account the distribution of older individuals hindered by disability or language barriers. Congress' requirement of federal "approval" of state funding formulae, the City contends, was not intended to foreclose a private right of action. Finally, the City argues that Lindley's formula violates the OAA because it fails to use the best available data to take account of disability and language barriers.
We turn first to whether the requirements of the OAA may be enforced under 42 U.S.C. § 1983. In Maine v. Thiboutot, 448 U.S. 1, 6-8, 100 S.Ct. 2502, 2505-06, 65 L.Ed.2d 555 (1980), the Supreme Court recognized that parties may rely upon § 1983 to challenge violations of federal statutes.
10 F.3d at 1319; see also Wilder, 496 U.S. at 509, 110 S.Ct. at 2517.
We now apply these principles to the relevant portions of the OAA. As we have outlined above, the OAA requires each state agency on aging to use "the best available data" to develop a distribution formula "that takes into account" the geographical distribution of older individuals within the state, as well as the distribution of those individuals in greatest economic and social need, with "particular attention" to low-income minority older individuals. See 42 U.S.C. § 3025(a)(2)(C). In evaluating whether this language creates rights enforceable under § 1983, we are guided by the Supreme Court's recent analyses in Wilder and Suter.
In Wilder v. Virginia Hospital Ass'n, the Court considered whether the Boren Amendment to the Medicaid Act created rights enforceable under § 1983. In relevant part, the amendment required that health care providers be reimbursed at rates
496 U.S. at 503, 110 S.Ct. at 2514 (citing 42 U.S.C. § 1396a(a)(13)(A)). The Court determined
Two years after Wilder, the Court decided Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). The federal statute at issue in Suter, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a (Adoption Act), provided for federal reimbursement of a portion of the expenses states incurred in administering foster care and adoption programs. To obtain federal reimbursement, the states had to "submit a plan to the Secretary of Health and Human Services for approval." Id. at 351, 112 S.Ct. at 1363-64. The statute delineated sixteen requirements that each state plan had to satisfy. Among these was a requirement that the state plan provide
Id. (citing 42 U.S.C. § 671(a)(15)). The Court determined that this provision did not create rights enforceable under § 1983. Initially, it stated that, although the Act was "mandatory in its terms," whether it created rights enforceable under § 1983 required analysis of "exactly what is required of States by the Act." Id. at 358, 112 S.Ct. at 1367. Examining the statute, the Court noted that the requirement placed on the states went only "so far as to ensure that the State have a plan approved by the Secretary which contains the 16 listed features." Id. The Court recognized the similarities between the Adoption Act at issue in Suter and the statutory language it had considered in Wilder,
Suter teaches that each statute "must be interpreted by its own terms." 503 U.S. at 358 n. 8, 112 S.Ct. at 1367 n. 8. Mindful of this command, our focus must be on the statutory scheme at issue in this case, taken in its totality. After analyzing the OAA on this basis, we conclude that 42 U.S.C. § 3025(a)(2)(C) does not create rights enforceable under § 1983 because its standards are too amorphous to be judicially enforceable. See Wilder, 496 U.S. at 509, 110 S.Ct. at 2516; Miller, 10 F.3d at 1319. Although the OAA is "mandatory" in its terms, we must, consistent with Suter, consider "exactly what is required of States by the Act." Suter, 503 U.S. at 358, 112 S.Ct. at 1367. The OAA requires that states develop formulae for distributing OAA funds which use the "best available data" that "takes into account" older individuals with greatest economic and social need, paying "particular attention" to low-income minority individuals. See 42 U.S.C. § 3025(a)(2)(C). However, the statute provides no additional guidance as to how the formulae are to "take into account" these individuals. Cf. Suter, 503 U.S. at 360, 112 S.Ct. at 1368. Section 3025(a)(2)(E) does require states to "provide assurances that preference will be given" to the groups mentioned in 42 U.S.C. § 3025(a)(2)(C); however, this provision simply recasts the language in section 3025(a)(2)(C) without further explicating it. Thus, courts are left with an amorphous provision. The statute gives no explicit guidance as to whether a state formula must include a factor for each and every subclass of older individuals. Nor does it address whether a formula will be considered to have taken account of a factor if, as in the case of Director Lindley's formula, it excludes the factor because few people in the state fall into the category the factor represents. It gives no guidance about a formula that, as the district court found with respect to Lindley's, distributes increased funds with respect to particular categories of individuals, even though it does not contain a factor corresponding to those particular categories. In sum, the OAA does not mandate explicitly that state formulae include specific numbers or types of funding factors. Cf. Miller, 10 F.3d at 1319 ("[A] § 1983 action is unavailable if the federal statute at issue merely condition[s] a state's receipt of federal funds on the adoption of a plan satisfying certain criteria.").
Moreover, the relevant version of the OAA, like the statute at issue in Suter, requires that state funding formulae be submitted to the federal Administration on Aging for "approval." 42 U.S.C. § 3025(a)(2)(D). Further, the OAA provides that each state funding
Our conclusion is bolstered by the Ninth Circuit's recent decision in Martinez v. Wilson, 32 F.3d 1415, 1420 (9th Cir.1994). In Martinez, the court considered whether there was a private cause of action under § 1983 for a group of cities that, as area agencies on aging, wanted to challenge the weights assigned to various factors included in the State of California's OAA funding formula. The Ninth Circuit concluded that no private remedy enforceable under § 1983 existed. After reviewing the OAA, the court reasoned that "[b]eyond the vague requirements that the [formula] `take into account' or pay `particular attention' to certain categories of older individuals, the Act provides no guidance as to how these phrases should be translated into specific percentages in any [formula]. There are no judicially manageable standards here." 32 F.3d at 1421. Although our case involves a challenge to the particular factors included in the formula, rather than the weights assigned to these factors, we agree that the "vague requirements" of the statute fail to provide sufficient guidance to render the Act judicially enforceable.
B. The City's Cross Appeal
Title VI of the Civil Rights Act of 1964 provides that no person "shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Although "Title VI itself directly reache[s] only instances of intentional discrimination," Alexander v. Choate, 469 U.S. 287, 293 & n. 8, 105 S.Ct. 712, 716 & n. 8, 83 L.Ed.2d 661 (1985) (citing Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)), "actions having an unjustifiable disparate impact on
Based upon this regulation, the City submits that Lindley's use of the 75 + and rural factors in her funding formula, in place of disability and language barrier factors, has the effect of discriminating against minorities. The City notes that, although 13.7% of Illinois' older individuals are minorities, only 10.7% of the State's population over the age of seventy-five are minorities and that older individuals living in rural areas are 98% non-minority. Lindley responds that her formula explicitly distributes, via the minority factor, 10% of all federal OAA funds to PSAs based exclusively on the number of minority older individuals living there. The poverty factor, which accounts for 25% of fund distributions, also favors PSAs containing higher populations of older minority individuals, a great number of whom live in poverty. Lindley then emphasizes that her formula disburses 29.14% of the State's OAA funds to Chicago even though the City contains only 23% of the State's older individuals. Moreover, she notes, the 75 + and rural factors do not exclude minorities. Finally, Lindley submits that her use of the 75 + and rural factors comports with the goals of the OAA because these factors help ensure that OAA funds are provided to older individuals who are in greatest need.
Lindley's formula, without question, distributes more OAA funds to a PSA as the number of minority older individuals residing there increases. The formula's "minority factor" allocates 10% of all OAA funds solely on this basis. Indeed, this factor contributes substantially to the Chicago PSA's ability to garner over 29% of all OAA distributions even though only 23% of Illinois' older individuals actually reside in the Chicago PSA. The fact that the City's higher concentration of minority older individuals allows it to receive substantially more funds than it would were the funds distributed pro rata suggests that the City's claim that the formula has a disparate impact on minorities is without merit.
The City disagrees, citing Connecticut v. Teal, 457 U.S. 440, 450-51, 102 S.Ct. 2525, 2532-33, 73 L.Ed.2d 130 (1982), for the proposition that the favorable result generated by Lindley's formula is "not a permissible defense if the formula includes factors with a racially disparate impact." Appellee's Br. at 43 n. 22. Teal was a Title VII case, not a case brought under regulations promulgated
Although Teal is a Title VII case, we shall assume that the principle for which it stands is applicable in a Title VI case as well.
However, even assuming the applicability of the Teal methodology, the City's claim still fails. With respect to the 75+ factor, the City offers a raw comparison of population percentages, noting that 13.7% of the State's older individuals are minorities while only 10.7% of those over the age of seventy-five are minorities. The City does not claim in its brief, however, that the difference in these percentages is statistically significant. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308-11 & nn. 14, 17, 97 S.Ct. 2736, 2742-44 nn. 14, 17, 53 L.Ed.2d 768 (1977). Consequently, the City has not established that use of the 75+ factor, considered in isolation, produces a disparate impact for purposes of Title VI's regulations.
With respect to the rural factor, the City notes that only 2% of the State's older minority individuals live in areas designated "rural." Viewed in isolation, the rural factor appears to favor substantially non-minorities. However, it does not appear that Lindley's use of the factor "substantially impair[s] accomplishment of the objectives of the [OAA] program" as it relates to minority older individuals. See 45 C.F.R. § 80.3(b)(2). The factor does not exclude minorities on its face. In addition, as the district court determined, the amount of funds at issue, when the rural factor is viewed in isolation, is small as compared to the overall OAA distribution to Illinois, and the actual benefit to minorities from eliminating the factor is unclear because the City is not required to expend the funds it receives on the basis of its minority older population dollar for dollar on those individuals.
In sum, the factors the City challenges do not have a disparate impact on the State's minority older individuals, do not substantially impair the OAA program as it relates to such individuals, or are substantially justified in light of the purposes of the OAA.
For the foregoing reasons, the district court's decision that a cause of action for enforcing the OAA exists under § 1983, which is the subject of the direct appeal (Nos. 94-3506, 94-3507, 94-3891), is reversed and remanded with instructions that the district court dismiss the City's claim. The district court's decision that the City has no claim under Title VI, which is at issue in the cross appeal (No. 94-3844), is affirmed. In light of our decision on the direct appeal, the district court's decision on the Eleventh Amendment issue is moot.
AFFIRMED in part; REVERSED in part.
89 Ill.Admin.Code § 230.45(c).
of all OAA funds distributed to Illinois.
42 U.S.C. § 1983.