Lundeen v. Mineta

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.

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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).

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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.

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