IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-20605
__________________________
DANIEL N. LUNDEEN,
Plaintiff-Appellant,
versus
NORMAN Y. MINETA,
Secretary of the United States
Department of Transportation;
THE METROPOLITAN TRANSIT AUTHORITY
OF HARRIS COUNTY, TEXAS; and
THE CITY OF HOUSTON,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________
May 8, 2002
Before WIENER and DENNIS, Circuit Judges, and LITTLE,* District
Judge.
WIENER, Circuit Judge:
Plaintiff-Appellant Daniel N. Lundeen appeals from the
jurisdictional dismissal of his suit against Defendants-Appellees
Norman Y. Mineta, the Secretary of the United States Department of
Transportation (“USDOT”)1; the Metropolitan Transit Authority of
*
The Honorable F.A. Little, Jr., Chief District Judge for the
Western District of Louisiana, sitting by designation.
1
The suit was originally against Mineta’s predecessor, former
Secretary Rodney Slater.
Harris County, Texas (“Metro”); and the City of Houston
(“Houston”). Agreeing with the district court’s conclusion that it
lacked subject-matter jurisdiction of this case, we affirm its
dismissal of Lundeen’s action.
I. FACTS AND PROCEEDINGS
This suit was brought by a bicyclist opposed to a federally
funded highway project in which Metro and Houston seek to renovate
the portion of Louisiana Street, a downtown thoroughfare, that runs
from West Gray to Lamar. The renovation would construct five one-
way traffic lanes, with no restrictions on the leftmost three
lanes, a high-occupancy-vehicle (“HOV”) restriction for lane four,
and a buses-only restriction for the fifth or rightmost lane.
Metro and Houston have secured USDOT grants to fund this
reconstruction (hereafter, “the Louisiana Project”).
Lundeen, a bicyclist who is a citizen and resident of Houston,
sued Mineta, Metro, and Houston to block the Louisiana Project. He
asked the district court to enjoin operation of bus lanes, HOV
lanes, and Metro buses on Louisiana Street; to enjoin Houston from
enforcing its ordinance against bikes in bus lanes; and to declare
that ordinance void and the Louisiana Project, as well as the
operation of Metro buses as envisioned in that Project, ineligible
for federal transportation funding. Lundeen’s pleadings allege
that because he is a bicyclist, his personal safety on and
enjoyment of Louisiana Street are threatened by the Project as
envisioned. He claims that he objected to the design of the
2
Project, only to be brushed off by both Metro and USDOT. On
appeal, he states that the design and operation of the Louisiana
Project “would threaten him with unreasonable risk of personal
injury and death” and that the design is “deliberately calculated
by Metro to discourage any use of [Louisiana Street] by bicycle
[sic].”
Mineta and Metro moved to dismiss for lack of subject-matter
jurisdiction and failure to state a claim on which relief could be
granted. The district court granted their jurisdictional motions
and dismissed the action. Lundeen timely filed a notice of appeal.
II. ANALYSIS
We review a dismissal for lack of subject-matter jurisdiction
de novo.2 Our review here is tripartite. We begin with Lundeen’s
claim against Secretary Mineta.
A. Jurisdiction over Mineta and USDOT
As we have previously noted,
The principle of sovereign immunity protects the federal
government from suit except insofar as that immunity is
waived. A waiver must be unequivocally expressed in
statutory text and will not be implied. See Lane v.
Pena, 518 U.S. 187, 192 (1996) (citations omitted)....
Numerous Supreme Court opinions hold that courts should
construe statutes against waiver unless Congress has
explicitly provided for it.3
2
St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1252
(5th Cir. 1998); DeCell & Associates v. FDIC, 36 F.3d 464, 467 (5th
Cir. 1994).
3
Peña v. United States, 157 F.3d 984, 986 (5th Cir. 1998)
(some citations omitted).
3
“Consequently, no suit may be maintained against the United States
unless the suit is brought in exact compliance with the terms of a
statute under which the sovereign has consented to be sued.”4 The
burden is on Lundeen to show such consent, because he is the party
asserting federal jurisdiction.5 He has pointed us to no waiver in
TEA-21 itself, its predecessors, or USDOT’s authorizing
legislation. We therefore confine our analysis of whether the
district court had jurisdiction of Lundeen’s action against Mineta
to the single statute that Lundeen identifies as permitting him to
sue the government: the Administrative Procedure Act (“APA”).6
1. Judicial Review of “Agency Action”
Lundeen’s basic argument assumes that, under the APA’s scheme,
USDOT’s funding of the Louisiana Project is an “agency action.”
Mineta does not contest this assumption, perhaps because the term’s
definition is very broad and encompasses a funding decision.7
The parties sharply disagree, however, over whether judicial
review is statutorily precluded. The APA generally provides that
“[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
4
Koehler v. United States, 153 F.3d 263, 265 (5th Cir. 1998)
(citing Soriano v. United States, 352 U.S. 270, 276 (1957)).
5
Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th
Cir. 1998).
6
5 U.S.C. §§ 551 et seq. (2000).
7
5 U.S.C. § 551(13) (defining “agency action” to include
“relief”); 5 U.S.C. § 551(11)(A) (defining “relief” to include
“grant of money”).
4
of a relevant statute, is entitled to judicial review thereof.”8
In granting this entitlement, the statute clearly waives the
official immunity of officers of the United States.9 This
certainly qualifies as a waiver of sovereign immunity. The APA
expresses a broad exception, however, to its general rule: courts
may not review an agency action when the “(1) statutes preclude
judicial review; or (2) agency action is committed to agency
discretion by law.”10 Mineta urges that the first exception
applies.11 If it does, its statutory preclusion of judicial review
would be jurisdictional in effect, requiring dismissal.12 If
neither exception applies, subject-matter jurisdiction exists,
although it does so under the general federal-question statute, not
the APA proper, which “does not create an independent grant of
jurisdiction to bring suit.”13
Our analysis under the first exception begins with the “strong
presumption” that Congress intends that the federal courts review
8
5 U.S.C. § 702 (2000).
9
Id.
10
5 U.S.C. § 701 (2000).
11
The second exception is also at issue, but we do not reach
it.
12
Block v. Community Nutrition Inst., 467 U.S. 340, 353 n.4
(1984).
13
Stockman, 138 F.3d at 152 n.13.
5
agency action.14 The agency can rebut this presumption by pointing
to “specific language or specific legislative history that is a
reliable indicator of congressional intent.”15 The standard is
whether congressional intent to preclude judicial review is “fairly
discernible in the statutory scheme.”16 In determining whether this
is so, we cast a broad evidentiary net: We look to the statute’s
language, structure, and legislative history, and also to the
nature of the administrative action authorized.17
2. TEA-21
The key provisions at issue entered the statute books in 1998
as parts of the Transportation Equity Act for the 21st Century
(“TEA-21”).18 In TEA-21, Congress re-authorized federal highway and
transit funding.
a. Statutory Text
TEA-21 amended the United States Code to add special language
favoring bicyclists (23 U.S.C. § 217(g)) and to rewrite a highly
reticulated transportation-planning scheme that explicitly
precludes judicial review (23 U.S.C. §§ 134 and 135). How these
provisions interrelate is a matter of first impression.
14
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667,
670 (1986).
15
Block, 467 U.S. at 349 (citing cases).
16
Id. at 351.
17
Id. at 349.
18
Pub. L. No. 105-178, 112 Stat. 107 (1998).
6
Sections 1203 and 1204 of TEA-21 amended §§ 134 and 135 to
require that metropolitan regions (acting through metropolitan
planning organizations) and states, respectively, develop
transportation plans that establish priorities of projects for
federal funding. Sections 134 and 135 delineate the scope of
planning and provide a list of planning factors, several of which
are relevant to this case; but they also protect that planning, and
the planners’ failure to consider a factor, from judicial review.
The relevant language of section 134, the metropolitan-planning
provision, state:
(f) SCOPE OF PLANNING PROCESS.——
(1) IN GENERAL.——The metropolitan transportation
planning process for a metropolitan area under this
section shall provide for consideration of projects and
strategies that will——
. . .
(B) increase the safety and security of
the transportation system for motorized and
nonmotorized users;
(C) increase the accessibility and
mobility options available to people and for
freight;
(D) protect and enhance the environment,
promote energy conservation, and improve
quality of life.
. . .
(2) FAILURE TO CONSIDER FACTORS.——The failure to consider
any factor specified in paragraph (1) shall not be
reviewable by any court under this title, subchapter II
of chapter 5 of title 5, or chapter 7 of title 5 in any
matter affecting a transportation plan, a transportation
improvement plan, a project or strategy, or the
certification of a planning process.19
Section 135’s list of state planning factors and prohibition on
judicial review of state planning are identical to this quoted
19
23 U.S.C. § 134(f) (2000).
7
language.20 If these provisions were all that we had to construe,
Lundeen would have no case.
Lundeen points to 23 U.S.C. § 217(g), however, which was
amended by section 1202(a)(3) of TEA-21 to read, in pertinent part:
§ 217. BICYCLE TRANSPORTATION AND PEDESTRIAN WALKWAYS.
...
(g) PLANNING AND DESIGN.——
(1) IN GENERAL.——Bicyclists and pedestrians shall be
given due consideration in the comprehensive
transportation plans developed by each metropolitan
planning organization and State in accordance with
sections 134 and 135, respectively. Bicycle
transportation facilities and pedestrian walkways shall
be considered, where appropriate, in conjunction with all
new construction and reconstruction of transportation
facilities, except where bicycle and pedestrian uses are
not permitted.
(2) SAFETY CONSIDERATIONS.——Transportation plans and
projects shall provide due consideration for safety and
contiguous routes for bicyclists and pedestrians....21
Lundeen notes that, even though the first sentence of § 217(g)(1)
refers back to §§ 134 and 135, which explicitly preclude judicial
review, the second sentence of § 217(g)(1) does not. Neither does
§ 217(g)(2). He suggests that, as § 217(g)’s title suggests, the
provision operates on two levels: planning and design. On this
view, the provision not only requires that bicyclists receive
consideration in the planning processes, which courts may not
review, but also requires that bicyclists receive due
consideration, when appropriate, in the design of particular
projects. Metropolitan and state plans developed pursuant to
20
23 U.S.C. § 135(c) (2000).
21
23 U.S.C. § 217(g) (2000).
8
§§ 134 and 135, Lundeen asserts, do not contain design details such
as bike lanes. He reasons that when Congress required that
“transportation...projects” afford bicyclists and bike routes “due
consideration,” and that bicycle transportation facilities “be
considered, where appropriate, in conjunction with all...
reconstruction of transportation facilities,” Congress meant to
impose a design requirement distinct from the planning requirement.
Under this theory, because only the first sentence of § 217(g)
refers back to §§ 134 and 135, the latter sections do not foreclose
judicial review of design violations.
The district court rejected Lundeen’s contention that § 217(g)
imposes a judicially reviewable design requirement, stating that
“Section 217(g) is relevant only in the context of § 134 and § 135,
both of which unambiguously preclude judicial review. Accordingly,
§ 217(g) does not provide a basis for this Court’s jurisdiction.”22
The district court quoted only the first sentence of § 217(g),
however, and did not respond in detail to Lundeen’s bifurcation
argument, which focuses on the last two sentences.
The case with respect to § 217(g) alone is not open and shut,
as § 217(g) is less than pellucid. Nevertheless, Lundeen’s
argument runs into several textual difficulties.
First, Lundeen’s attempt to bifurcate § 217(g) ignores the
consistency of language in that section’s three sentences. All
three use the terms “consider” or “consideration.” The better
22
Op. at 4.
9
construction of § 217(g) gives this term a consistent meaning,
maintaining uniformity of construction in all three sentences.23
Second, if “consider” and “consideration” do indeed mean the
same thing throughout § 217(g), that meaning is to be found in
§§ 134 and 135, to which § 217(g)’s first sentence refers. Both
those sections require that metropolitan planning organizations and
states consider various factors as they draw up plans.24 To support
his contrary interpretation —— that the meaning of “consideration”
in §§ 134 and 135 is not imported into § 217 —— Lundeen fails to
identify for us any other portion of TEA-21 or Title 23 that uses
the term. Rather, he asserts that § 217(g) on its own establishes
a new consideration requirement that is judicially reviewable.
This is an energetic construction of the second two sentences at
issue, given that neither of them specifies who —— which official
or what agency —— shall give “due consideration” to facilities and
routes for, and the safety of, bicyclists. The second sentence of
§ 217(g)(1) masks agency by using the passive voice: “Bicycle
transportation facilities...shall be considered.” Section
217(g)(2) states that “plans and projects shall provide due
consideration,” as though decisions are made by the plans and
projects rather than by federal, state, and local agency officials,
planners, designers, and engineers. The indeterminacy of these two
23
See Sullivan v. Stroop, 496 U.S. 478, 484 (1990)
(“[I]dentical words used in different parts of the same act are
intended to have the same meaning.”).
24
See 23 U.S.C. §§ 134(f)(1) and 135(c)(1).
10
sentences reinforces our view that we should interpret “consider,”
as used throughout § 217(g), in light of §§ 134 and 135, to mean
“consider during planning.”
Third, we concede that § 217(g)(2) provides a modicum of
support for Lundeen’s bifurcated reading, because it is a separate
paragraph (thus perhaps distinguishing its language from that of
§ 217(g)(1)), and because, taken in isolation, it might fairly be
read to impose a definite requirement. The distinction from
§ 217(g)(1) is particularly important because that section refers
to §§ 134 and 135, each of which explicitly states that failure to
consider a factor —— such as safety —— in transportation planning
is not judicially reviewable. These bans on judicial review are
quite sweeping: failure to consider a factor “shall not be
reviewable by any court under this title [or provisions of the APA]
in any matter affecting a transportation plan, a transportation
improvement plan, a project or strategy, or the certification of a
planning process.”25 Neither party has cited any case deciding
whether the phrase “any matter affecting a transportation plan ...
[or] strategy” includes compliance with § 217(g), and we have found
none. Thus we are left to our own devices to determine how to
reconcile these two provisions.
The Supreme Court’s reviewability test asks whether
congressional intent to make an agency action judicially reviewable
25
23 U.S.C. § 134(f)(2) (emphasis added); see also 23 U.S.C.
§ 135(c)(2).
11
is “fairly discernible” not just from statutory text, but also from
structure, legislative history, and the nature of the
administrative action alleged to be reviewable. We address each of
these other indicators of intent.
b. Statutory Structure
The structure of Title 23 militates against Lundeen’s
bifurcated reading of § 217(g) in several ways. Lundeen’s
assertion that the planning processes established in §§ 134 and 135
do not address particular projects (or the implications of
projects) for bicycles is belied by the text of those sections. As
amended, §§ 134 and 135 state that the plans “shall provide for the
development and integrated management and operation of
transportation systems and facilities (including pedestrian
walkways and bicycle transportation facilities) that will function
as an intermodal transportation system.”26 Both metropolitan
planning organizations and states are commanded to develop
“transportation improvement programs” that “shall include,”
respectively, “priority list[s] of proposed federally supported
projects” and “federally supported surface transportation
expenditures.”27 The metropolitan planning organizations and states
must each also develop long-range plans, with respect to which
“citizens,...representatives of users of public transit, and other
26
23 U.S.C. §§ 134(a)(3) & 135(a)(3) (2000).
27
23 U.S.C. § 134(h)(1)(A) & (2)(A) (2000); 23 U.S.C.
§ 135(f)(1)(A) & (2)(A).
12
interested parties” shall have “a reasonable opportunity to
comment” on the plans in development.28 As for its transportation
improvement program, each metropolitan planning organization must
provide an opportunity for comment during the plan’s development,
must provide a further notice-and-comment period before approving
the plan, and must publish the plan annually.29 The state then
selects from the approved improvement plan the projects that will
receive federal funds.30 Lundeen’s suggested bifurcation between
planning and project design is thus not necessarily borne out by
the statute’s structure, although it may be reflected in the
statute’s implementation.
Unsurprisingly, Title 23 does mandate that federally-funded
projects comply with federal standards.31 In § 109(m), this Title
even mandates that the Secretary of Transportation veto “any
project...that will...have significant adverse impact on the safety
for nonmotorized transportation traffic” unless the project
provides for a reasonable alternate route or such a route already
exists.32 The record is devoid of any evidence on alternate routes,
28
23 U.S.C. § 134(g)(4) (2000). The State-planning section has
a similar provision, 23 U.S.C. § 135(e)(3)(A) (2000).
29
23 U.S.C. § 134(h)(1)(B), (4), & (7) (2000). Each State must
also permit interested parties to participate in the development of
its improvement program. 23 U.S.C. § 135(f)(1)(C) (2000).
30
23 U.S.C. § 134(h)(5) (2000).
31
See generally 23 U.S.C. §§ 106, 109 (2000).
32
23 U.S.C. § 109(m).
13
however, partly because Lundeen never mentioned § 109(m) in his
complaint or in his briefs. We therefore decline to address any
violation of § 109(m).
Broadening our focus to Title 23 as a whole gives still
further evidence against Lundeen’s argument. Even if we assume
that § 217(g) does impose a design criterion independent of the
planning processes specified in §§ 134 and 135, we see that
Congress wrote that criterion into Title 23 Chapter 2, which
generally governs highways that are not federal-aid highways
authorized by Chapter 1. Other provisions in Chapter 2 cover
federal lands highways, forest development roads, defense access
roads, the Inter-American Highway, territories highways, the Darien
Gap Highway (which is in Panama), and a portion of the Alaska
Highway that is in Canada.33 Any freestanding design criterion in
Chapter 2 would more naturally apply to these highways than to
federal-aid highways such as the Louisiana Project. We are
convinced that if it had wanted a putative, judicially reviewable,
bicycle-safety criterion to cover federal-aid highways, Congress
would have placed such a provision in either Chapter 1 (entitled
“Federal-Aid Highways”), Chapter 3 (“General Provisions”), or
Chapter 4 (“Highway Safety”). If § 217(g) does contain a design
requirement independent of the planning processes in Chapter 1, the
location of that requirement in Chapter 2 militates strongly
33
See 23 U.S.C. §§ 204, 205, 210, 212, 215, 216, and 218
(2000).
14
against applying the requirement to the federal-aid highways
governed by Chapter 1. The structure of Title 23 thus evinces in
several ways a congressional intent that the courts not review any
violation of § 217(g) with respect to a federal-aid highway.
c. Legislative History
Lundeen has not cited any portion of the legislative history
of TEA-21 in support of his interpretation of § 217(g). Our
independent review of the history has unearthed no evidence
supporting his interpretation of § 217(g) but has revealed some
evidence supporting the district court’s jurisdictional dismissal.
The current version of § 217(g) was enacted as part of TEA-21.
Both the House and Senate versions of the bill contained
essentially the same language as the current statute and thus shed
little light on this question.34 The committee and conference
reports, however, are somewhat more illuminating.
The House report states merely that the bill “amends section
217 of title 23 to make a number of clarifying changes and to
require that bicyclists and pedestrians be included in the planning
process.”35 This report gives no hint of providing judicial review
or imposing a separate design requirement.
34
See Building Efficient Surface Transportation and Equity Act
of 1998, H.R. 2400, 105th Cong. § 137 (1998); Intermodal Surface
Transportation Efficiency Act of 1997, S. 1173 105th Cong. § 1110
(1997).
35
H.R. REP. NO. 105-467, pt. 1, at 190 (1998). The House report
discusses the House bill’s amendment to 23 U.S.C. § 109(n) [sic ——
now § 109(m)], but —— to repeat —— Lundeen has not asserted a claim
under that provision.
15
The Senate report states:
SUMMARY
The planning provisions in sections 134 and 135 of
title 23 are amended to provide that bicyclists and
pedestrians shall be given consideration in the
comprehensive Statewide and metropolitan planning
processes, and that the inclusion of bicycle and
pedestrian facilities shall be considered, where
appropriate and permitted, in conjunction with all new
construction and reconstruction of transportation
facilities.
DISCUSSION
The Intermodal Surface Transportation Efficiency Act
of 1991 made progress to encourage bicycling and walking
as alternative modes of transportation. This section
builds on ISTEA by expanding the amount of funds
available to be used for these purposes. The Department
should work with the States to ensure that bicycling and
pedestrian interests are represented in State and
[metropolitan planning organization] decision making.36
This report’s language is (1) inaccurate, because the provision it
described did not amend §§ 134 and 135, but rather referred to
them; (2) ambiguous, because it repeats the textual ambiguity on
which Lundeen’s bifurcation argument rests; and (3) merely
hortatory, because it urges USDOT to help ensure that bicyclists
are represented in planning. There is no suggestion that the
Senate Environment and Public Works Committee envisioned judicial
review of a bicycle-safety design criterion.
The conference committee adopted the House’s proposed version
of § 217(g) with modifications.37 The conference report’s
description of the provision that amends § 217 is not on point
36
S. REP. NO. 105-95, at 15 (1997).
37
H.R. REP. NO. 105-550, at 409 (1998) (conference report),
reprinted in 1998 U.S.C.C.A.N. 70, 81 (legislative history volume).
16
here,38 but another passage is somewhat helpful. The report
clarifies that the conference committee meant for the provisions in
§§ 134 and 135 that preclude judicial review —— also enacted as
part of TEA-21 —— to be quite broad in their effect: “The language
clarifies that the failure to consider any specific factor in
formulating plans, projects, programs, strategies and certification
of planning processes is not reviewable in court.”39
The legislative history thus confirms the impression given by
the text. By enacting TEA-21, Congress did not intend to create a
judicially reviewable, bicycle-safety–design criterion; rather, it
anticipated that the failure to consider specific factors in
planning a particular transportation project —— even bicycle safety
—— would not be judicially reviewable.
d. Nature of Administrative Action
The last collateral source of evidence of congressional intent
to create or deny a cause of action is the nature of the
administrative action involved. To the extent that § 217(g) does
not refer back to §§ 134 and 135, it states that transportation
plans and projects shall provide “due consideration for safety and
[ ] routes for bicyclists,” and that “bicycle transportation
facilities be considered, where appropriate, in conjunction with
38
Id.
39
H.R. REP. NO. 105-550, at 440, reprinted in 1998 U.S.C.C.A.N.
at 113.
17
all...reconstruction of transportation facilities.”40 These phrases
voice nebulous requirements: They guarantee no right to any
individual bicyclist; they are minuscule elements of a reticulated
statute which each year authorizes the construction of billions of
dollars worth of transportation projects nationwide pursuant to
careful, joint planning among all levels of government following
public participation. It is highly unlikely, and not “fairly
discernible” from the administrative action involved, that Congress
intended to allow bicyclists and pedestrians, alone among all the
interest groups affected by this statute, to sue USDOT for
inadequately considering their safety.
In sum, the text of § 217(g) might, if read in a vacuum,
combine with the presumption in favor of judicial review to make
Mineta’s decision to fund the Louisiana Project a judicially
reviewable agency action under the APA. When read in the context
of other provisions, statutory structure, legislative history, and
the nature of the administrative remedy, however, § 217(g) does not
permit judicial review. We affirm the district court’s dismissal
of Lundeen’s APA suit against Mineta. Having done so, we decline
to address the question, raised by the parties, whether the APA
permits a plaintiff to name nonfederal defendants as it brings suit
for review of an agency action.
40
23 U.S.C. § 217(g).
18
Private Right of Action
Having determined that Lundeen cannot sue Mineta under the
APA’s express language, we must also determine whether Lundeen has
an implied private right of action against Metro, Mineta, and
Houston for injunctive and declaratory enforcement of § 217(g).41
We begin with the standard “presumption that Congress did not
intend to create a private right of action.”42 The plaintiff
generally “bears the relatively heavy burden of demonstrating that
Congress affirmatively contemplated private enforcement when it
passed the relevant statute.”43
The possibility of an implied right of action is analyzed
under the four-part test announced by the Supreme Court in Cort v.
Ash.44 We have previously summarized that test as follows:
(1) Is this plaintiff a member of the class for whose
“especial” benefit the statute was passed? In other
words, does the statute create a federal right for this
plaintiff?
(2) Is there any evidence of legislative intent, either
explicit or implicit, to create or deny a private remedy?
(3) Is it consistent with the legislative scheme to imply
a private remedy?
41
Such an action is possible against Mineta because the APA
also removes the sovereign immunity of federal officers sued in
their official capacity if the relief sought is other than monetary
damages. 5 U.S.C. § 702.
42
Resident Council of Allen Parkway Village v. United States
Dep’t of Housing & Urban Development, 980 F.2d 1043, 1053 (5th Cir.
1993).
43
Id. (quoting Victorian v. Miller, 813 F.2d 718, 721 (5th Cir.
1987) (en banc)).
44
422 U.S. 66, 78 (1975).
19
(4) Is the cause of action one traditionally relegated to
state law so that implying a federal right of action
would be inappropriate?45
“Under the first Cort factor, we ask whether the plaintiff
belongs to an identifiable class of persons on whom the statute has
conferred a substantive right.”46 The issue is whether the statute
“expressly identifies [a] class Congress intended to benefit”47 or
whether Congress has instead “framed the statute simply as a
general prohibition or a command.”48 Of significance to the instant
case, § 217(g) mentions “bicyclists” as a class in the first
sentence of § 217(g)(1), which refers back to provisions that
explicitly bar judicial review. Section 217(g)(1) goes on to
specify that “bicycle transportation facilities...shall be
considered,” and § 217(g)(2) states that “plans and projects shall
provide due consideration for safety and contiguous routes for
bicyclists.” Again, “bicyclists” are explicitly mentioned as a
class, making the question a close one; but on balance, we view
§ 217(g) as “duty-creating,” not “right-creating.”49
45
Lousiana Landmarks Society, Inc., v. City of New Orleans, 85
F.3d 1119, 1122–23 (5th Cir. 1996).
46
Id. at 1123 (citations omitted).
47
Cannon v. University of Chicago, 441 U.S. 677, 690 (1979).
48
Universities Research Ass’n v. Coutu, 450 U.S. 754, 772
(1981).
49
Louisiana Landmarks, 85 F.3d at 1124; see also Abate v.
Southern Pacific Transp. Co., 928 F.2d 167, 169 (5th Cir. 1991).
20
Even if § 217(g) did textually suggest that bicyclists may
sue, however, the “touchstone of the Cort analysis...is the second
factor, Congressional intent.”50 Lundeen has not cited any evidence
of congressional intent to establish an implied private right of
action, and our own analysis above suggests that Congress intended
no judicial review whatsoever. This conclusion is reinforced by
our rule that because a federal grant program is in the nature of
a contract between the federal government on one side and states,
regional authorities, and localities on the other, “courts
generally should decline to entertain claims by private persons
that a state or local public body is not complying with a federal-
state contract.”51
Lundeen has not referred us to Cort, much less briefed the
implied-right-of-action issue generally. Instead, he has
emphasized his APA claim, and chosen to view his claims against
Metro and Houston as pendant to that claim. As judicial review of
administrative action is presumptively favored, but implying a
private right of action is presumptively disfavored, our ruling on
Lundeen’s APA claim virtually forecloses any possibility of a
private right of action. Despite the fact that the burden is his,
Lundeen has failed to explain why we should not view this case in
light of the general principle that courts should hesitate to read
rights of action into federal grant statutes. We therefore
50
Louisiana Landmarks, 85 F.3d at 1123 (collecting cases).
51
Id. at 1125.
21
pretermit consideration of the third and fourth Cort factors,52
concluding that Lundeen has failed to carry his burden of showing
that Congress intended to create a private right of action to
enforce § 217(g).
C. The Kyne Exception
Lundeen nevertheless asserts that the district court had
jurisdiction of his suit under the exception acknowledged by Leedom
v. Kyne.53 Under Kyne, even if —— as here —— relevant statutory
language precludes jurisdiction, a plaintiff may secure judicial
review “when an agency exceeds the scope of its delegated authority
or violates a clear statutory mandate.”54 We have interpreted Kyne
as permitting injunctions “only in a very narrow situation in which
there is a plain violation of an unambiguous and mandatory
provision of the statute.”55 Review under Kyne is permissible only
if the agency’s error “is of a summa or magna quality as
contraposed to decisions which are simply cum error. Only the
egregious error melds the [agency’s] decision into
52
Id. (“Where analysis of the first two Cort factors leads to
the conclusion that Congress did not intend to create a private
right of action, we need not address the other two Cort factors.”)
(citing cases).
53
358 U.S. 184 (1958).
54
American Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th
Cir. 1999).
55
Id. (citations and internal quotation marks omitted).
22
justiciability.”56 Thus, to permit review, a Kyne error “must not
simply involve a dispute over statutory interpretation.”57
Given our statutory-interpretation result above, Lundeen has
clearly failed to demonstrate statutory error of a magna or summa
quality. At most he has strongly suggested that USDOT’s funding of
the Louisiana Project violates design guidelines that USDOT itself
has written. Those guidelines, however, are not statutes.58
USDOT’s alleged violation of them is therefore not reviewable under
Kyne.
III. CONCLUSION
Lundeen cannot sue Mineta under the APA. Section 217(g) does
not give a bicyclist or pedestrian a private cause of action on
which to sue Mineta, Metro, or Houston. Pendant jurisdiction of
Lundeen’s state-law claims was therefore lacking. Lundeen’s
allegation that USDOT has violated its own guidance by funding the
56
United States v. Feaster, 410 F.2d 1354, 1368 (5th Cir.
1969).
57
Kirby Corp. v Peña, 109 F.3d 258, 269 (5th Cir. 1997)
(quoting Dart v. United States, 848 F.2d 217, 222 (D.C. Cir.
1988)).
58
Lundeen points to many excerpts from Design Guidance,
Accommodating Bicycle and Pedestrian Travel: A Recommended
Approach; A US DOT Policy Statement on Integrating Bicycling and
Walking into Transportation Infrastructure (United States
Department of Transportation, Federal Highway Administration),
available at http://www.fhwa.dot.gov/environment/bikeped/Design.htm
(last modified Nov. 6, 2001). On its face, this document does not
purport to be even binding USDOT policy: “[T]he purpose of the
Policy Statement is to provide a recommended approach to the
accommodation of bicyclists and pedestrians that can be adopted by
State and local agencies (as well as . . . Federal agencies) . . .
as a commitment.” Id. at 3.
23
Louisiana Project does not rise to the level of egregious error
that the Kyne exception was designed to prevent.
The district court’s jurisdictional dismissal is therefore
AFFIRMED.
24