Three Rivers Center for Independent Living, Inc. v. Housing Authority of the City of Pittsburgh

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-4356
THREE RIVERS CENTER FOR
INDEPENDENT LIVING, INC.; DANA
WASHINGTON, on behalf of herself
and all others similarly situated,
Appellants
v.
HOUSING AUTHORITY OF THE
CITY OF PITTSBURGH; KEITH
KINARD, in his official capacity as the
Executive Director of the HOUSING
AUTHORITY OF THE CITY OF
PITTSBURGH
On Appeal from the United States
District Court for the Western District of
Pennsylvania
(Dist. Court No. 02-cv-01069)
District Judge: Hon. Terrence F.
McVerry
Argued: May 12, 2004
Before: NYGAARD, MCKEE and
CHERTOFF, Circuit Judges
(Filed: August 30, 2004)
Stephen F. Gold (Argued)
125 South Ninth Street, Suite 700
Philadelphia, PA 19107
Mark J. Murphy
Robin Resnick
Disabilities Law Project
1315 Walnut Street, Suite 400
Philadelphia, PA 19107-4798
David Kahne
P.O. Box 66386
Houston, TX 77266
Paul O’Hanlon
Disabilities Law Project
1901 Law & Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-1505
Counsel for Appellants
Susan A. Yohe (Argued)
Buchanan Ingersoll P.C.
One Oxford Centre
310 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Counsel for Appellee
OPINION OF THE COURT
CHERTOFF, Circuit Judge
This is a suit seeking declaratory

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and injunctive relief compelling the
Housing Authority of the City of
Pittsburgh to comply with regulations the
Department of Housing and Urban
Development promulgated pursuant to
Section 504 of the Rehabilitation Act. The
regulations require the Pittsburgh Housing
Authority to effect certain systemic
reforms in order to provide accessible
public housing to handicapped individuals.
They require, among other things, that five
percent of the dwelling units in any newly
constructed public housing project be
accessible to persons with ambulatory
disabilities and an additional two percent
of the units be accessible to persons with
hearing or vision impairments.
The Housing Authority—and this
appears to be undisputed—has continually
failed to comply with HUD’s regulations.
Plaintiffs allege that, as a result, the
Pittsburgh Housing Authority has denied
accessible housing to disabled individuals.
As troubling as this may be, however, our
task here is to determine whether
appellants may properly maintain a suit to
enforce the HUD regulations, by way of
either a private right of action under the
Rehabilitation Act or under Section 1983.
There are certainly steps HUD itself can
and should take to effect compliance. But
the District Court partially dismissed
appellants’ com plaint because it
determined that they did not have a private
right of action to enforce the HUD
regulations.
Our analysis requires a careful
review and discussion of the law
governing when private parties can sue to
enforce a legislative or regulatory
mandate. For the following reasons, we
will affirm the denial of a right of action to
enforce the regulations.
I.
Section 504 of the Rehabilitation
Act of 1973 is commonly referred to as the
“civil rights bill of the disabled,” ADAPT
v. Skinner, 881 F.2d 1184, 1187 (3d Cir.
1989) (en banc), or the “cornerstone of the
civil rights movement of the mobility-
impaired.” Id. at 1205 (Mansmann, J.,
concurring in part and dissenting in part).
Generally, the statute “prohibits any
program or activity receiving federal funds
from discriminating against persons with
disab ilities.” Bow ers v. National
Collegiate Athletic Ass’n, 346 F.3d 402,
432 (3d Cir. 2003). It provides:
No otherwise qualified
individual with a disability
in the United States . . .
shall, solely by reason of her
or his disability, be excluded
from the participation in, be
denied the benefits of, or be
subjected to discrimination
under any program or
activity receiving Federal
financial assistance or under
any program or activity
conducted by any Executive
agency or by the United
States Postal Service.

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29 U.S.C. § 794(a).1
HUD promulgated regulations to
effectuate Section 504 in 1988. The
provisions that address accessibility in
public housing projects and facilities
appear among the regulations at 24 C.F.R.
§§ 8.20-33.
When a public housing authority
that receives federal funds constructs new
housing or “substantially alters” existing
housing,2 the HUD regulations require that
five percent of the dwelling units in those
facilities be accessible to persons with
mobility disabilities and two percent be
accessible to persons with hearing or
vision impairments. See 24 C.F.R. §§
8.22(a)-(b), 8.23(a). When one or more
dwelling units in an existing facility are
altered—but the alterations do not rise to
the level of “substantial alterations”—the
units must be made accessible to the
mobility impaired, until five percent of the
units in the facility are accessible. See 24
C.F.R. § 8.23(b)(1).3
In addition, accessible dwelling
units must, to the “maximum extent
feasible,” be distributed throughout
projects. 24 C.F.R. § 8.26. And they must
“be available in a sufficient range of sizes
and amenities so that a qualified individual
with handicaps’ choice of living
arrangements is, as a whole, comparable to
that of other persons eligible for housing
assistance under the same program.” Id.
Because the Pittsburgh Housing
Authority receives federal funding through
HUD, it is subject to Section 504's
requirements. The Housing Authority has
altered existing facilities and built new
ones since the time the HUD regulations
went into effect, but it failed to satisfy the
obligations the regulations impose.4
1 The Rehabilitation Act’s other
provisions serve similar ends. Section 501
prohibits employment discrimination based
on disability by federal agencies. See 29
U.S.C. § 791. Section 503 prohibits
employment discrimination by federal
contractors and grantees. See 29 U.S.C. §
793.
2 “Substantial alterations” are
alterations that cost 75% or more than the
replacement cost of the completed facility.
24 C.F.R. § 8.23(a).
3 The regulations allow HUD, upon
request, to prescribe a higher percentage or
number than the regulations addressing
newly-constructed and altered housing
require, “based upon demonstration to the
reasonable satisfaction of HUD of a need
for a higher percentage or number, based
on census data or other available current
data . . . or in response to evidence of a
need for a higher percentage or number
received in any other manner.” 24 C.F.R.
§§ 8.22(c), 8.23(b)(2).
4 Since this case reaches us upon the
District Court’s disposition of a motion to
dismiss under Federal Rule of Civil
Procedure 12(b)(6), we relate the facts as
set forth in plaintiffs’ complaint.

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As a consequence of the Housing
Authority’s failure to comply with the
HUD regulations, the demand for
accessible public housing in Pittsburgh
exceeds the supply. Indeed, in 1995 the
Housing Authority signed a “Voluntary
Compliance Agreement” with HUD
acknowledging “compliance deficiencies”
and “civil rights deficiencies.” It conceded
the need for at least 546 accessible rental
units, and it promised to provide them. In
return, HUD agreed to continue to provide
the Housing Authority with federal
funding. By the Housing Authority’s own
admission, however, there were only 200
units accessible to people in wheelchairs
as of March 2002.
As a result, when Dana Washington
applied for public housing in 2001, the
Housing Authority assigned her to a unit
with stairs even though she suffers from
near-paralysis of her lower left limb and
must use a wheelchair. When Washington
complained about the assignment, the
Housing Authority re-assigned her to
another unit. But again the sink and
bathtub in the newly-assigned unit were
inaccessible to Washington.
Similarly, Three Rivers Center for
Independent Living, Inc. (“Thre e
Rivers”)—a non-profit corporation that
advocates for the rights of individuals with
disabilities—reports that many of its
clients have a hard time finding accessible
and affordable housing.5 Consequently,
Three Rivers expends considerable effort
assisting people with disabilities in trying
to locate accessible housing.
In June of 2002, Washington and
Three Rivers filed the present suit against
the Pittsburgh Housing Authority and its
Executive Director, Keith Kinard, in his
official capacity. They seek an order
declaring the Pittsburgh Housing Authority
in violation of the HUD regulations and
enjoining the Housing Authority to comply
with them.6 Specifically, plaintiffs seek to
5 Three Rivers is a federally-funded
entity that is statutorily required to, inter
alia, promote “equal access of individuals
with significant disabilities to society and
to all services, programs, activities,
resources, and facilities, whether public or
private and regardless of the funding
source.” 29 U.S.C. § 796f-4(b)(1)(D).
6 In their complaint, plaintiffs
sought to represent a class of “all people
with disabilities who currently, or in the
future, will live in public housing
[maintained by the Pittsburgh Housing
Authority] that is not accessible . . . as well
as all people with disabilities who
currently are, or in the future, will be, on
the waiting list for . . . public housing.”
App. 12. The docket entries from the
District Court indicate that although
plaintiffs moved for class certification and
the issue was briefed, the parties filed a
joint motion asking the District Court to
“hold i n a b e ya n c e C e r t if icatio n
Activities.” App. 5. The District Court
granted the motion and as a result it never
ruled on the motion for class certification.
We therefore treat the present suit as an

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enforce four requirements: (1) that a
specific percentage of newly constructed
public housing be accessible to the
disabled, see 24 C.F.R. § 8.22(a)-(b); (2)
that a specific percentage of substantially-
altered public housing be accessible to the
disabled, see 24 C.F.R. § 8.23(a); (3) that
altered (but not substantially altered)
public housing be made accessible until at
least five percent of the units are
accessible, see 24 C.F.R. § 8.23(b)(1); and
(4) that accessible housing be distributed
throughout projects and comparable to
housing available to non-disabled
individuals, see 24 C.F.R. § 8.26.7
Defendants moved to dismiss
plaintiffs’ complaint “to the extent that it
seeks relief for the violations of
regulations promulgated by [HUD] to
implement § 504 of the Rehabilitation
Act.” App. 25. They argued that plaintiffs
did not have a private right of action to
enforce the regulations because the
regulations “are too far removed from
Congressional intent as reflected in § 504
to constitute ‘federal rights’ privately
enforceable under either § 504 or § 1983.”
App. 26-27. The District Court granted
defendants’ motion, relying largely on our
opinion in South Camden Citizens in
Action v. New Jersey Dep’t of Envtl. Prot.,
274 F.3d 771 (3d Cir. 2001), cert. denied,
536 U.S. 939 (2002) and the Supreme
Court’s decision in Alexander v. Sandoval,
532 U.S. 275 (2001). Plaintiffs timely
appealed.8
II.
The District Court, which exercised
its jurisdiction under 28 U.S.C. §§ 1331
and 1343, did not dismiss plaintiffs’
complaint in its entirety. Rather, it
dismissed the complaint only insofar as
plaintiffs sought to enforce the HUD
regulations. The Court was of the opinion,
however, that the partial dismissal
involved a controlling question of law as
to which there is substantial ground for
difference of opinion—namely, “[w]hether
individual action brought by Washington
and Three Rivers.
7 In their complaint, appellants
based their claims on other portions of the
HUD regulations—specifically, 24 C.F.R.
§ 8.24(a) (addressing a ccessibility
requirements in existing, non-altered
housing), 24 C.F.R. § 8.25(c) (requiring
housing authorities to promulgate and
implement a “needs assessment” and
“transition plan”), and 24 C.F.R. § 8.27(a)
(requiring housing authorities to make
disabled persons aware that accessible
units are available and ensure that
accessible units are utilized by disabled
persons to the fullest extent possible). See
App. 18-19. Appellants appear to no
longer seek enforcement of these
regulations. See Appellants’ Br. 7-9. We
therefore only address the regulations
appellants pursue on appeal.
8 As we explain below, plaintiffs’
individual claims that the Housing
Authority denied them their right to access
under Section 504 still remain before the
District Court.

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Plaintiffs have a private right of action
against Defendants for enforcement of
regulations of the United S tates
Department of Housing and Urban
Development . . . as set forth in 24 C.F.R.
§§ 8.20-33 which mandate the number and
distribution of accessible housing units for
qualified handicapped individuals in
publicly funded housing developments,”
App. 42—and that an immediate appeal
may materially advance the ultimate
termination of the litigation. We therefore
exercise jurisdiction under 28 U.S.C. §
1292(b).
We review de novo the District
Court’s dismissal under Federal Rule of
Civil Procedure 12(b)(6) for failure to state
a claim. See, e.g., Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d
Cir. 2002). “In evaluating the propriety of
dismissal, we accept all factual allegations
as true, construe the complaint in the light
most favorable to the plaintiff, and
determine whether, under any reasonable
reading of the complaint, the plaintiff may
be entitled to relief.” Id.
A.
Although we affirm the District
Court’s judgment, we do so based on
reasoning that differs somewhat from the
District Court’s. We begin with three
general propositions. First, Congress may
effect its legislative goals through various
means. “Congress sometimes legislates by
innuendo,” for examp le, “ma king
declarations of policy and indicating a
preference while requiring measures that,
though falling short of legislating its goals,
serve as a nudge in the preferred
directions.” Rosado v. Wyman, 397 U.S.
397, 413 (1970), quoted in Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1,
19 (1981). Other times, Congress more
s p e c i f ic a ll y c r e a te s “ ri g h t s a n d
obligations.” Pennhurst, 451 U.S. at 15.
Second, Congress can create
various types of rights and obligations.
See, e.g., Granfinanciera, S.A. v.
Nordberg, 492 U.S. 33, 51-52 & n.8
(1989) (distinguishing between “public
rights” and “private rights” for purposes of
the Seventh Amendment’s right to trial by
jury). And one subset of rights that courts
have discerned in statutes is “personal
rights.”9 Personal rights inhere in the
individ ual; they are “individually
focused”; they crea te “ind ividual
entitlements.” Non-personal rights, by
contrast, often have a “systemwide” or
“aggregate” focus; are defined in terms of
obligations of the person or entity
regulated rather than in terms of
entitlements of the individual protected;
are “not concerned with whether the needs
of any particular person have been
9 Courts have been inconsistent in
the terms they use to refer to “personal
rights,” sometimes calling them
“individual rights,” “private rights,” or
simply “federal rights.” We use the term
“personal rights” throughout this opinion
to maintain the demarcation between
“personal rights” and “private rights of
action.” See Gonzaga Univ. v. Doe, 536
U.S. 273, 285 (2002) (using the term
“personal rights”).

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satisfied”; and regard “institutional policy
and practice, not individual instances” of
conduct. See Gonzaga Univ. v. Doe, 536
U.S. 273, 282, 288 (2002); Sandoval, 532
U.S. at 288-89; Blessing v. Freestone, 520
U.S. 329, 343-44 (1997).
To be sure, systemic legislation may
in fact benefit a group of individuals. That
does not mean that the legislation confers
a personal right on those individuals.
“[T]he question whether a statute is
intended to benefit particular plaintiffs is
quite different from the question whether
the statute in fact benefits those plaintiffs
. . . .” Pa. Pharmacists Ass’n v. Houstoun,
283 F.3d 531, 535 (3d Cir. 2002) (en
banc). Personal rights are those
intentionally and “unambiguousl y
conferred” through “rights-creating”
language. Gonzaga, 536 U.S. at 283, 284;
see Sabree ex rel. Sabree v. Richman, 367
F.3d 180, 187-88 (3d Cir. 2004).
Third, even when Congress creates
rights or obligations (including personal
rights), it does not necessarily follow that
private parties can enforce them or obtain
a direct remedy through the judicial
process. Id. at 284. It is often the case that
only the executive can enforce a federal
statute. Some statutes create rights in
individuals that are only enforceable by
agencies, see, e.g., Communications
Workers of America v. Beck, 487 U.S.
735, 742 (1988), or not enforceable at all,
see Alden v. Maine, 527 U.S. 706 (1999).
Of course, there are also many
statutorily created rights and obligations
that private parties may seek to enforce in
judicial proceedings. Congress may
expressly provide in a particular statute,
for example, that a party can bring suit
seeking enforcement. Determining
whether a statute explicitly provides a
private remedy involves a relatively
straightforward inquiry. A court must look
to the text of the statute to see if it states,
by its terms, that a private party may bring
suit to enforce it. See Hallstrom v.
Tillamook County, 493 U.S. 20, 25 (1989).
Congress explicitly provided a
private remedy in Title II of the Civil
Rights Act of 1964, for instance, a statute
that prohibits discrimination in places of
public accommodation on the basis of
“race, color, religion, or national origin.”
42 U.S.C. § 2000a. Title II provides that
when someone has or is about to
contravene its prohibition against
discrimination, “a civil action for
preventive relief, including an application
for a permanent or temporary injunction,
restraining order, or other order, may be
instituted by the person aggrieved.” 42
U.S.C. § 2000a-3(a). Similarly, many
environmental statutes contain express
private rights of action. See Hallstrom, 493
U.S. at 23 n.1 (citing statutes).
Indeed, when Congress authorizes
an express right of action, it can choose to
allow private parties to enforce a range of
rights and obligations that Congress
creates. Some statutes create personal
rights, for example, and provide that
private parties may bring suit to enforce
those personal rights. See, e.g., 42 U.S.C.
§§ 2000e-2(a)(1), 2000e-5(f)(1) (Title VII
of the Civil Rights Act of 1964). Other

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statutes create rights or obligations that do
not constitute personal rights—or impose
obligations in addition to personal
rights—and still expressly allow private
parties to enforce those rights or
obligations. See, e.g., 33 U.S.C. §§
1365(a), (g) (Clean Water Act). Indeed,
some statutes create private rights of
action—often called “citizen suit
provisions”—that extend plaintiffs’
capacity to bring suit to the bounds of
Article III standing. See Friends of Earth,
Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167 (2000) (Clean
Water Act).
Congress may also circumscribe a
private right of action that it creates. It
may limit, for example, the type of relief
available to a plaintiff. Compare 42 U.S.C.
§ 2000a-3(a) (limiting remedies available
for violations of Title II of the Civil Rights
Act of 1964 to injunctive relief) with 42
U.S.C. § 2000e-5(g) (injunctions available
to remedy violations of Title VII) and 42
U.S.C. § 1981a(a)(1) (damages available
to remedy violations of Title VII).
Similarly, Congress may create a private
right of action that allows plaintiffs only to
enforce a limited set of the rights or
obligations that a statute creates. See
Olmsted v. Pruce Life Ins. Co. of N.J., 283
F.3d 429, 433 (2d Cir. 2002) (observing
that in the Investment Company Act of
1940 Congress explicitly provided a
private right of action to enforce some
provisions of the statute but not others).
All this goes to saying that not all private
rights of action are created equally;
Congress may (and does) tailor rights of
action to suit various purposes and goals.
Many statutes, however, do not
contain provisions addressing either
whether private parties may maintain a
right of action or the scope of a right of
action a private party may maintain. When
that is the case, courts may still recognize
a private right of action in one or both of
two ways. First, a court may find an
implied right of action in the statute.
Second, Section 1983 may provide a
private right of action.10 These are
separate yet overlapping inquiries. See
Gonzaga, 536 U.S. at 283-84; W. Va.
Univ. Hosps., Inc. v. Casey, 885 F.2d 11,
10 Section 1983 provides:
Every person who, under
color of an y statute ,
o r d i n a n c e , r e g u l a ti o n ,
custom, or usage, of any
State or Territory or the
D istrict o f C ol um bia,
subjects, or causes to be
subjected, any citizen of the
United States or other
p e r s o n w i t h i n t h e
jurisdiction thereof to the
deprivation of any rights,
privileges, or immunities
secured by the Constitution
and laws, shall be liable to
the party injured in an action
at law, suit in equity, or
other proper proceeding for
redress . . . .
42 U.S.C. § 1983.

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18 n.1 (3d Cir. 1989).
Congress’s intent in enacting a
statute is always the “focal point” in
determining whether courts should infer a
private right of action from the statute.
Thompson v. Thompson, 484 U.S. 174,
179 (1988). The four factors set forth in
Cort v. Ash, 422 U.S. 66 (1975) guide a
court’s review in discerning that intent.
Thompson, 484 U.S. at 179; see also
Hindes v. F.D.I.C., 137 F.3d 148, 169 (3d
Cir. 1998). Those factors are:
First, is the plaintiff “one of
the class for whose especial
benefit the statute was
enacted,”—that is, does the
statute create a federal right
in favor of the plaintiff?
Second, is there any
indication of legislative
intent, explicit or implicit,
either to create such a
remedy or to deny one?
Third, is it consistent with
the underlying purposes of
the legislative scheme to
imply such a remedy for the
plaintiff? [Fourth,] is the
c a u s e o f a c tio n o n e
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?
Cort v. Ash, 422 U.S. at 78 (citations
omitted) (emphasis in original). “The first
two criteria are critical. If they do not point
toward a private right, the remaining two
‘cannot by themselves be a basis for
implying a right of action.’” Am. Tel. &
Tel. Co. v. M/V Cape Fear, 967 F.2d 864,
866 (3d Cir. 1992) (quoting Touche Ross
& Co. v. Redington, 442 U.S. 560, 580
(1979) (Brennan, J., concurring)). Put
succinctly, for an implied right of action to
exist, a statute must manifest Congress’s
intent to create (1) a personal right, and (2)
a private remedy. See Sandoval, 532 U.S.
at 286.
Determining whether there is a
private right of action under Section 1983
to enforce a federal statute requires only a
slightly different analysis. Section 1983
by its terms, of course, furnishes a private
remedy.11 The threshold question remains,
however, whether the federal statute
creates a personal right—i.e., a plaintiff
must show that “the statute creates
‘enfo rceab le rights, privileg es, o r
immunities within the meaning of §
1983.’” Pa. Pharmacists Ass’n v.
Houstoun, 283 F.3d at 535 (quoting
11 Thus the second prong of Cort v.
Ash—whether the statute manifests
Congress’s intent to create a private
remedy, which is critical to implication
analysis— is irrelevant to the analysis
under Section 1983: “Plaintiffs suing
under § 1983 do not have the burden of
showing an intent to create a private
remedy because § 1983 generally supplies
a remedy for the vindication of rights
secured by federal statutes.” Gonzaga, 536
U.S. at 284.

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Wright v. Roanoke Redevelopment &
Housing Auth., 479 U.S. 418, 423 (1987)).
Once the plaintiff establishes “the
existence of a federal right,” there arises a
rebuttable presumption that the right is
enforceable through the remedy of § 1983.
Pa. Pharmacists Ass’n v. Houstoun, 283
F.3d at 535. This presumption may be
rebutted by showing that “Congress
specifically foreclosed a remedy under §
1983, [either] expressly, by forbidding
recourse to § 1983 in the statute itself, or
impliedly, by creating a comprehensive
enforcement scheme that is incompatible
with individual enforcement under §
1983.” Powell v. Ridge, 189 F.3d 387, 401
(3d Cir. 1999) (internal quotations and
citations omitted), quoted in South
Camden, 274 F.3d at 780.
Critically, the inquiry whether there
is a personal right under implied right of
action analysis and the question whether
there is a personal “enforceable right”
under Section 1983 are the same. As the
Supreme Court held in Gonzaga
University v. Doe: “[T]he initial [Section
1983] inquiry—determining whether a
statute confers any right at all— is no
different from the initial inquiry in an
implied right of action case, the express
purpose of which is to determine whether
or not the statute ‘confer[s] rights on a
particular class of persons.’” 536 U.S. at
285 (quoting California v. Sierra Club, 451
U.S. 287, 294 (1981)). The Court further
explained:
A court's role in discerning
whether personal rights exist
in the § 1983 context should
therefore not differ from its
role in discerning whether
personal rights exist in the
implied right of action
context. Both inquiries
s i m p l y r e q u i r e a
determination as to whether
or not Congress intended to
confer individual rights
u p o n a c l a s s o f
beneficiaries. Accordingly,
where the text and structure
of a statute provide no
indication that Congress
intends to create new
individual rights, there is no
basis for a private suit,
whether under § 1983 or
under an implied right of
action.
Id. at 285-86 (internal citations omitted).
Thus Congress’s creation of a personal
right is necessary to the existence of both
an implied right of action and a right of
action under Section 1983.
To sum up, private parties may only
enforce personal rights through implied
rights of action or through Section 1983.
This distinguishes implied rights of action
and rights of action under Section 1983
from express rights of action. Only under
the latter may plaintiffs enforce more than
personal rights, when Congress expressly
so prescribes. See, e.g., Laidlaw, 528 U.S.
at 175-76, 185.
B.
That leads us to the issue of
whether a private right of action exists to

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enforce regulations that an agency
promulgates pursuant to a federal statute.
Where Congress has created an express
right of action, a court must examine the
scope of the statute’s right of action—as
evidenced in the statute’s text—to
determine whether a plaintiff may
maintain a cause of action to enforce the
regulations. Congress may, for example,
explicitly establish a private right of action
to enforce regulations. Thus, the Resource
Conservation and Recovery Act of 1976
“permits individuals to commence an
action in district court to enforce waste
disposal regulations promulgated under the
Act.” Hallstrom, 493 U.S. at 22.12
The inquiry becomes more
complicated, however, when a private
party seeks to enforce a regulation an
agency promulgates pursuant to a statute
that does not contain an express right of
action; that is, when the statute gives rise
to a private remedy either through an
implied right of action or through Section
1983.
We addressed whether a plaintiff
could bring suit to enforce regulations
promulgated under a statute with an
implied right of action in Angelastro v.
Prudential-Bache Securities, Inc., 764 F.2d
939 (3d Cir. 1985). There, we articulated
a three-tiered analysis for determining
“whether to imply a private right of action
from an [agency] rule, and only indirectly
from the enabling statute.” Id. at 947. A
court must determine “(1) ‘whether the
agency rule is properly within the scope of
the enabling statute’; (2) ‘whether the
statute under which the rule was
prom ulgated properly permits the
implication of a private right of action’;
and (3) ‘whether implying a private right
of action will further the purpose of the
enabling statute.’” Polaroid Corp. v.
Disney, 862 F.2d 987, 994 (3d Cir. 1988)
(quoting Angelastro, 764 F.2d at 947); see
also Corestates Trust Fee Litig. v.
Corestates Bank, N.A., 39 F.3d 61, 67-68
(3d Cir. 1994) (applying Angelastro).
The Supreme Court subsequently
addressed the issue in Alexander v.
Sandoval, which involved a regulation that
the Department of Justice (“DOJ”) had
promulgated under Title VI of the Civil
Rights Act of 1964. See 532 U.S. at 278.
Section 601 of Title VI prohibits recipients
of federal funding from intentionally
discriminating against individuals based
on race, color, or national origin. 42
U.S.C. § 2000d; see also Sandoval, 532
U.S. at 280-81. Section 602 of Title VI
authorizes federal agencies “to effectuate
the provisions of [Section 601] . . . by
issuing rules, regulations, or orders of
general applicability.” 42 U.S.C. § 2000d-
1. The DOJ promulgated a regulation
prohibiting recipients of federal funding
12 The statute provides, in relevant
part, that “any person may commence a
civil action on his own behalf . . . against
any person . . . who is alleged to be in
violation of any permit, standard,
regulation, condition, requirement,
prohibition, or order which has become
effective pursuant to this chapter.” 42
U.S.C. § 6972(a)(1)(A).

-- 11 of 22 --

12
from taking actions that had a disparate
impact on racial groups. See 28 C.F.R. §
42.104(b)(2) (2000).
Since Section 601 prohibits only
intentional discrimination, the Court
explained, the DOJ’s disparate impact
regulation had to derive from Section 602.
Thus the plaintiffs did not have a right to
sue under Section 601’s private right of
action; “[t]hat right must come, if at all,
from the independent force of § 602.” Id.
at 286.13 The Court therefore analyzed
Section 602 to determine whether it could
infer a right of action under that provision.
In doing so, the Court found that Section
602 does not manifest Congress’s intent to
create a personal right, namely because
“rights-creating” language is absent from
the statute. Id. at 288. In addition, the
Court found that Section 602 does not
manifest an intent to create a private
remedy, mostly because the enforcement
system that Section 602 and Section 603
create suggest just the opposite. Id. at 289-
90.
Because no private right of action
exists to enforce Section 602, and the
DOJ’s regulation derived from that
provision of Title VI, the plaintiffs in
Sandoval did not have a right of action to
enforce the regulation. Id. at 290-91. The
Court noted, however, that private parties
may bring suit to enforce regulations that
validly construe a statute for which there
exists a private right of action. “A
Congress that intends the statute to be
enforced through a private cause of action
intends the authoritative interpretation of
the statute to be so enforced as well.” Id. at
284. Thus Sandoval is consistent with this
court’s jurisprudence in Angelastro and its
progeny. Angelastro, like Sandoval,
teaches that courts must look to the
enabling statute to find the source of a
right of action to enforce regulations,
because “an agency's rulemaking power
cannot exceed the authority granted to it by
Congress.” 764 F.2d at 947. A regulation
cannot “conjure up a private cause of
action that has not been authorized by
Congress. Agencies may play the
sorcerer’s apprentice but not the sorcerer
himself.” Sandoval, 532 U.S. at 291.
Sandoval and Gonzaga do allow us
to refine our decision in Angelastro.
Sandoval and Gonzaga explain in no
uncertain terms that Congress’s statutory
creation of a personal right is a predicate
to finding an implied right of action in a
statute. The agency and its regulations do
not furnish an independent basis to
“conjure” an implied right of action. Thus,
when determining as a part of Angelastro’s
private right of action analysis “whether
the agency rule is properly within the
scope of the enabling statute,” a court is
really looking more precisely at whether
the agency rule is within the scope
of— i.e., construes, fleshes out, or fills in
the interstices of—a personal right that the
enabling statute creates.
Sandoval and Angelastro were
13 The Court concluded that it was
“beyond dispute” that an implied right of
action exists to enforce Section 601. 532
U.S. at 280.

-- 12 of 22 --

13
implied right of action decisions.
Therefore, neither addressed whether
plaintiffs could enforce the regulations at
issue in those cases by way of a private
right of action under Section 1983. This
court subsequently examined that issue in
South Camden Citizens in Action v. New
Jersey Dep’t of Envtl. Prot., 274 F.3d 771
(3d Cir. 2001), cert. denied, 536 U.S. 939
(2002). There, we considered a disparate
impact regulation that the Environmental
Protection Agency had promulgated under
Section 602 of Title VI. We extended
Sandoval’s reasoning to the Section 1983
context and concluded that a regulation
cannot “create a right enforceable through
section 1983 where the alleged right does
not appear explicitly in the statute, but
only appears in the regulation.” Id. at 781.
A plaintiff can only enforce a regulation
under Section 1983 if the regulation
“merely define[s] the specific right that
Congress already ha[s] conferred through
the statute.” Id. at 783. In other words,
private parties cannot enforce regulations
under Section 1983 when the regulations
“do more than define or flesh out the
content of a specific right conferred upon
the plaintiffs” by the statute and instead
“give the statute a scope beyond that
Congress contemplated.” Id. at 790.
Under Section 1983, therefore, regulations
give rise to a right of action only insofar as
they construe a personal right that a statute
creates. Id.; see also Harris v. James 127
F.3d 993, 1008-09 (11th Cir. 1997).
With these principles in mind, we
turn to whether plaintiffs here can bring
suit to enforce the HUD regulations, either
vis-à-vis a right of action under the
Rehabilitation Act or Section 1983.
C.
To determine whether plaintiffs
have a private right of action under the
Rehabilitation Act to enforce the HUD
regulations, we must make a series of
inquiries. First, we examine the scope of
the private right of action that exists to
enforce Section 504. We conclude that
since Section 504's private right of action
is contiguous with Title VI’s—for which
an implied, not express, right of action
exists—plaintiffs can bring suit to enforce
personal rights that Section 504 creates,
and only such personal rights.
Second, we examine Section 504
and the pertinent HUD regulations to
determine whether the HUD regulations
construe any personal right that Section
504 creates. We ultimately conclude that
while the HUD regulations we examine
here may construe rights or obligations
that Section 504 creates, they do not
construe personal rights that Section 504
creates. We therefore find that the
Rehabilitation Act does not provide a
private right of action to enforce these
particular HUD regulations.
1.
The Rehabilitation Act, as
originally enacted, did not explicitly
provide a private right of action. In the
years following its enactment, however, a
number of courts (including this Court)
concluded that an implied right action
existed to enforce the statute. See Lloyd v.

-- 13 of 22 --

14
Reg’l Transp. Auth., 548 F.2d 1277, 1280-
81 (7th Cir. 1977); Kapmeier v. Nyquist,
553 F.2d 296, 299 (2d Cir. 1977)
(following Lloyd); United Handicapped
Fed’n v. Andre, 558 F.2d 413, 415 (8th Cir.
1977) (following Lloyd); Leary v.
Crapsey, 566 F.2d 863, 865 (2d Cir. 1977);
Davis v. Southeastern Cmty. Coll., 574
F.2d 1158, 1159 (4th Cir. 1978) (following
Lloyd), rev’d on other grounds, 442 U.S.
397 (1979); NAACP v. Med. Ctr., Inc.,
599 F.2d 1247, 1258-59 (3d Cir. 1979)
(following Lloyd); Kling v. County of Los
Angeles, 633 F.2d 876, 878 (9th Cir. 1980)
(following Lloyd). Congress’s subsequent
amendments to the Rehabilitation Act
reinforce, indeed compel, the conclusion
that a private right of action exists to
enforce Section 504.
First, Congress added Section
505(a)(2) to the Rehabilitation Act in
1978. The provision provides that the
“remedies, procedures, and rights set forth
in title VI of the Civil Rights Act of 1964
shall be available to any person aggrieved
by any act or failure to act by any recipient
of Federal assistance or Federal provider
of such assistance under section 794 of
this title.” 29 U.S.C. § 794a(a)(2). At the
time, “the courts, including [the Supreme
Court], ha[d] unanimously concluded or
assumed that a private action may be
maintained under Title VI.” Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 419
(1978) (Stevens, J., concurring in part and
dissenting in part). As the Supreme Court
has explained,
Congress is presumed to be
aware of an administrative
or judicial interpretation of a
statute and to adopt that
interpretation when it
re-enacts a statute without
change. So too, where, as
here, Congress adopts a new
law incorporating sections
of a prior law, Congress
normally can be presumed
to have had knowledge of
the interpretation given to
the incorporated law, at least
insofar as it affects the new
statute.
Lorillard v. Pons, 434 U.S. 575, 580-81
(1978) (internal citations omitted). Thus
Congress, in essence, provided a private
right of action under Section 504 by
incorporating Title VI’s “remedies,
procedures, and rights” into the statute.
See also Barnes v. Gorman, 536 U.S. 181,
184-85 (2002); Bowers, 346 F.3d at 426
(“[A]lthough the remedy available to
persons aggrieved by violations of the
Rehabilitation Act . . . is at root an implied
one, [the statute], by cross-referencing
Title VI, which already had been
interpreted as creating a private right of
action, arguably [contains an] explicit
provision[] creating a private right of
action.”).
Second, Congress confirmed that a
private right of action exists to enforce
Section 504 when it ratified the Supreme
Court’s decision in Cannon v. Univ. of
Chicago, 441 U.S. 677 (1979). In Cannon,
the Court held that a private right of action
exists to enforce Title IX of the Education
Amendments of 1972, because Title IX

-- 14 of 22 --

15
“was patterned after Title VI” and “[i]n
1972 when Title IX was enacted, the
[parallel] language in Title VI had already
been construed as creating a private
remedy.” Id. at 694, 696. Like Title IX,
Section 504 was also patterned after Title
VI. See Med. Ctr., Inc., 599 F.2d at 1258.
And Congress subsequently enacted
Section 1003 of the Rehabilitation Act
Amendments of 1986, 42 U.S.C. § 2000d-
7, which the Supreme Court has
interpreted as “a validation of Cannon’s
holding.” Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60, 72 (1992); see also
Sandoval, 532 U.S. at 280.14
We note these circumstances not
because the parties dispute whether a
private right of action exists under Section
504. Rather, we do so because the source
of the private right of action speaks to its
scope. Section 504's private right of action
derives—through Congress’s use of
parallel language, incorporation of Title
VI’s remedies in the 1978 amendments,
and ratification of Cannon— from the
right of action that exists to enforce Title
VI. Consequently, “the remedies for
violations of . . . § 504 of the
Rehabilitation Act are coextensive with the
remedies available in a private cause of
action brought under Title VI.” Gorman,
536 U.S. at 185.
The private right of action that
exists to enforce Title VI is, of course, an
implied right of action. See Sandoval, 532
U.S. at 280; Bowers, 346 F.3d at 428 n.21;
Med. Ctr., Inc., 599 F.2d at 1257-58.
Since, as we have explained, Sandoval
mandates that an implied right of action
can exist only where Congress creates a
personal right, a plaintiff can enforce only
personal rights through an implied right of
action. Because Section 504's
remedies—including the scope of its
private right of action—are coextensive
with Title VI’s, it follows that plaintiffs
can only bring suit to enforce personal
rights that Section 504 creates.
Accordingly we conclude that
insofar as plaintiffs seek to enforce these
HUD regulations, they may do so only if
the regulations construe and define a
personal right that Section 504 creates;
“[a]gencies may play the sorcerer’s
apprentice but not the sorcerer himself.”
Sandoval, 532 U.S. at 291. We turn to the
relationship between Section 504 and the
HUD regulations at issue.
2.
The Supreme Court has interpreted
Section 504 in two principal decisions:
Southeastern Cmty. Coll. v. Davis, 442
U.S. 397 (1979) and Alexander v. Choate,
469 U.S. 287 (1985). In Davis and
Choate, the Court articulated two
countervailing legislative concerns that
underlie Section 504 and guide courts’
interpretation of it: “(1) effectuation of the
statute’s objectives of assisting the
handicapped; and (2) the need to impose
14 Section 1003 “abrogated the
States’ Eleventh Amendment immunity
under Title IX, Title VI, § 504 of the
Rehabilitation Act of 1973, and the Age
Discrimination Act of 1975.” Franklin,
503 U.S. at 72.

-- 15 of 22 --

16
reasonable boundaries in accomplishing
this purpose.” Skinner, 881 F.2d at 1191
(citing Choate, 469 U.S. at 299). The
Court struck a balance between these
consideration by reading Section 504 as
requiring federal fund grantees to offer
“meaningful access” to programs they
administer. Meaningful access, as
explicated by the Court, does not require
that grantees “fundamentally alter” or
“substantially change” the nature of the
program. Moreover, grantees need not
make accommodations that would impose
undue financial or administrative burdens.
See Skinner, 881 F.2d at 1192; Nathanson
v. Med. Coll. of Pa., 926 F.2d 1368, 1383
(3d Cir. 1991). “Choate and Davis
therefore contemplate a continuum in
which some modest modifications may be
necessary to avoid discrimination but other
more substantial modifications are not
required by section 504.” Skinner, 881
F.2d at 1192.
Despite courts’ efforts to interpret
Section 504 and determine what it requires
of federal grantees, the statute is
nonetheless still “‘ambiguous and lacking
in specifics.’” Disabled in Action of Pa. v.
Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987)
(quoting R.I. Handicapped Action Comm.
v. R.I. Public Transit Auth., 718 F.2d 490,
494 (1st Cir. 1983)); see also Skinner, 881
F.2d at 1193 (referring to the “difficulty in
determining precisely the extent of
accommodation mandated by section
504"). As a result, some courts have
“suggested that the relevant federal agency
and not the court has the chief
responsibility to determine what Section
504 requires of recipients of federal funds
in accommodating the needs of disabled
persons.” Sykes, 833 F.2d at 1117.
Section 504 does not, by its terms,
mandate the issuance of regulations to
implement the statute. See Helen L. v.
Didario, 46 F.3d 325, 330 n.9 (3d Cir.
1995). Section 504's legislative history
indicate s, however, that Congress
contemplated the promulgation of such
regulations. See S. Rep. No. 93-1297, at
40 (1974), reprinted in 1974 U.S.C.C.A.N.
6390-91; see also Cmty. Television of S.
Cal. v. Gottfried, 459 U.S. 498, 509 (1983)
(“[S]ince § 504 was patterned after Title
VI of the Civil Rights Act of 1964, it was
understood that resp onsib ility for
enforcing it, insofar as it regulated private
recipients of federal funds, would lie with
those agencies administering the federal
financial assistance programs.”).
In 1976, President Ford issued
Executive Order No. 11,914, 41 Fed. Reg.
17,871 (Apr. 28, 1976), which required the
Department of Health, Education, and
Welfare (“HEW”) to “establish . . .
guidelines for determining what are
discriminatory practices, within the
meaning of section 504.” HEW issued
“coordination regulations” in 1978. See 43
Fed. Reg. 2132 (Jan. 13, 1978).
The HEW regulations now appear
at 28 C.F.R. Pt. 41.15 After providing
15 HEW eventually became the
Department of Health and Human Services
(“HHS”), see 20 U.S.C. § 3508 (1979),
and in 1980 President Carter transferred

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17
some general prescriptions against
discrimination in federally funded
programs and activities, see 28 C.F.R. §
41.51, the regulations specifically address
employment discrimination and program
accessibility. See C.F.R. §§ 41.52-58.16
T h e pro gram a ccess ibility
regulations provide: “No qualified
handicapped person shall, because a
recipient's facilities are inaccessible to or
unusable by handicapped persons, be
denied the benefits of, be excluded from
participation in, or otherwise be subjected
to discrimination under any program or
activity that receives or benefits from
federal financial assistance.” 28 C.F.R. §
41.56. The regulations’ more specific
program accessibility requirements go on
to distinguish between existing, newly-
constructed, and altered facilities.
With respect to new construction,
the regulations require that new facilities
“be designed and constructed to be readily
accessible to and usable by handicapped
persons.” 28 CFR § 41.58(a). And
“[a]lterations to existing facilities [must],
to the maximum extent feasible, be
designed and constructed to be readily
accessible to and usable by handicapped
persons.” Id.
After HEW promulgated its
regulations, Congress amended Section
504. As we described above, Congress
e n a c t e d S e c t i o n 5 0 5 (a ) ( 2 ) a n d
incorporated by reference Title VI’s
“remedies, procedures, and rights.” 29
U.S.C. § 794a(a)(2). Congress also added
text to Section 504 requiring federal
agencies to “promulgate such regulations
as may be necessary to carry out the
amendments to this section made by the
Rehabilitation, Comprehensive Services,
and Developmental Disabilities Act of
1978.” 29 U.S.C. § 794.
The Supreme Court has interpreted
the 1978 amendments as “ma[king]
explicit” Congress’s theretofore implicit
understanding that agencies administering
federal financial assistance programs
wo uld e n f o r c e S e c ti o n 5 0 4 by
promulgating regulations. Gottfried, 459
U.S. at 509. The Court has also
i n t e rp r e t e d t h e a m e n d m e n t s a s
“incorporat[ing] the substance of the
HHS’s coordination and enforcement
authority to the Attorney General. See
Executive Order No. 12,250, 45 Fed. Reg.
72,995 (Nov. 2, 1980). The DOJ thereafter
adopted the HEW coordination regulations
without substantive changes. See Bragdon,
524 U.S. at 633. For the sake of internal
consistency, we refer to the regulations as
the “HEW regulations.”
16 Thus the regulations reflect the
concerns that motivated Congress to enact
Section 504. See Choate, 469 U.S. at 306-
07 (“In enacting the Rehabilitation Act and
in subsequent amendments, Congress . . .
focus[ed] on se veral subs tantiv e
areas— employment, education, and the
elimination of physical barriers to
access—in which it considered the societal
and personal costs of refusals to provide
meaningful access to the handicapped to
be particularly high.”).

-- 17 of 22 --

18
[HEW] regulations into the statute.”
Consol. Rail Corp. v. Darrone, 465 U.S.
624, 634 n.15 (1984).17 As the Supreme
Court has repeatedly noted, the HEW
regulations deserve considerable deference
b e c a u s e t h e y c o n s t i t u t e t h e
“contemporaneous regulations issued by
the agency responsible for implementing a
congressional enactment.” Id. at 634; see
also Bragdon v. Abbott, 524 U.S. 624, 632
(1998); Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 195 (2002)
(same); Chevron U.S.A. Inc. v. Echazabal,
536 U.S. 73, 82 n.4 (2002) (same).
Importantly, the HEW regulations
require each agency to “issue, after notice
and opportunity for comment, a regulation
to implement section 504 with respect to
the programs and activities to which it
provides assistance.” 28 C.F.R. § 41.4(a);
see also 28 C.F.R. § 41.4(c)(2). HUD
promulgated Section 504 regulations,
which we described above, in 1988.
That brings us to the question on
which this appeal hinges: What is the
precise relationship between the right of
action under Section 504 and the HUD
regulations? There is a universe of three
possibilities. First, the regulations may do
no more than construe personal rights that
Section 504 creates. Second, the
regulations may (instead or additionally)
construe non-personal rights or
obligations that Section 504 creates.
Third, the regulations may also create
distinct rights or obligations—either
personal or non-personal—in addition to
those that Section 504 creates.18 As we
have explained, only in the first instance
would plaintiffs have a private right of
action to enforce the regulations. That is
because Section 504's right of action only
allows plaintiffs to enforce personal rights
that the statute creates, and any regulations
17 As the Court explained, “the
responsible congressional committees
participated in their formulation, and both
these committees and Congress itself
endorsed the regulations in their final
form.” Darrone, 465 U.S. at 634.
18 We distinguish—as we did in
South Camden—between regulations that
“construe” a statute and regulations that
“create rights or obligations in addition to
those that the statute creates.” If Congress
duly authorizes an agency, it may
promulgate both types of regulations. See
1 Richard J. Pierce, Jr., Administrative
Law Treatise § 6.4, at 325-26 (4th ed.
2002); see also Chao v. Rothermel, 327
F.3d 223, 227 (3d Cir. 2003) (discussing
“interpretative” and “legislative” rules);
Am. Mining Cong. v. Mine Safety &
Health Admin., 995 F.2d 1106, 1108-09
(D.C. Cir. 1993) (same). Appellees
assume that Congress has so authorized
HUD under the Rehabilitation Act and
that the HUD regulations are valid. We
adopt that assumption for the purposes of
this decision. Nothing here is meant to
cast doubt on the validity of the HUD
regulations themselves. But the validity of
the regulations is a different question than
whether they are privately enforceable.
See South Camden, 274 F.3d at 787.

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19
a plaintiff seeks to enforce must merely
“flesh out” those statutory personal rights.
Cf. South Camden, 274 F.3d at 790.
An analysis of the HUD regulations
here reveals that in any event they do not
articulate personal rights.
At the outset, we observe that as a
general matter the HUD regulations are
directed at the Housing Authority’s
obligations as a grantee. Section 8.22, for
example, requires that new housing
projects “shall be designed and
constructed to be readily accessible to and
usable by individuals with handicaps.” 24
C.F.R. § 8.22(a). This mandate is not
couched in terms of any beneficiary’s
entitlement, but aims at the fund
recipient’s conduct. Id. The regulations,
to the extent they effectuate Section 504,
speak to the regulated state entity and do
not focus on the individual beneficiary.
Words “that focus on the person regulated
rather than individuals protected create ‘no
implication of an intent to confer rights on
a particular class of persons.’” Sandoval,
532 U.S. at 289 (quoting California v.
Sierra Club, 451 U.S. 287, 294 (1981)).
Thus the regulations fall short of the type
of individually-focused entitlement that
the Supreme Court has found critical in
determining whether Congress created
personal rights. See Gonzaga, 536 U.S. at
287; Richman, 367 F.3d at 187-88.
Equally important, the HUD
regulations plaintiffs seek to enforce relate
to “institutional policy and practice, not
individual instances” of discrimination.
Gonzaga, 536 U.S. at 288. So, for
instance, Section 8.22 provides that new
housing projects “shall be designed and
constructed to be readily accessible “ to
handicapped persons. 24 C.F.R. § 8.22(a).
And Section 8.26 requires that accessible
dwelling units “be distributed throughout
projects.” 24 C.F.R. § 8.26.
Similarly, the HUD rules have an
“‘aggregate focus’” and “are not
concerned with ‘whether the needs of any
particular person have been satisfied.’”
Gonzaga, 536 U.S. at 288 (quoting
Blessing, 520 U.S. at 343, 344). In this
regard, we emphasize that all but one of
the regulations plaintiffs seek to enforce
turn on the percentage of units that meet
accessibility requirements. Five percent of
the units in newly-constructed and
substantially-altered housing projects must
be accessible to those with ambulatory
disabilities, and two percent must be
accessible to those with hearing and visual
disabilities. See 24 U.S.C. §§ 8.22(b),
8.23(a). And when the Housing Authority
alters a unit, but not substantially, it must
make the unit accessible unless five
percent of the units in the housing project
are already accessible. See 24 U.S.C. §
8.23(b).
Thus the Housing Authority can fail
to comply with the regulations and still not
deny access to a disabled individual.
Consider, for instance, if the Housing
Authority were to build a new 100-unit
housing facility and, although none of the
newly-built units were accessible to the
mobility impaired, the Housing Authority
had a policy of retrofitting every unit to be
accessible whenever an impaire d

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20
individual sought public housing. The
Housing Au thority wo uld provide
accessible housing to disabled individuals,
yet it would have failed to comply with the
regulations. We do not offer this example
to suggest that Section 504 does not
authorize the prophylactic measures the
regulations articulate. Rather, the example
demonstrates that the mandates the
regulations set forth are not individual-
oriented and have a systemwide focus. See
Blessing, 520 U.S. at 343-44 (treating
focus on systemwide compliance as
inconsistent with the creation of personal
rights).
Since the HUD regulations at issue
do not articulate personal rights, they of
course cannot construe personal rights that
Section 504 creates; and whether the HUD
regulations otherwise construe general
obligations that Section 504 creates or
create distinct obligations is not
dispositive for private right of action
analysis. Thus, although we assume that
the HUD regulations properly effectuate
Section 504, we cannot conclude that the
regulations construe a personal right
within Section 504. As a result, plaintiffs
cannot enforce the regulations by way of
Section 504's private right of action.
In reaching our conclusion, we note
that while Sandoval drives our decision,
this case differs from Sandoval. In
Sandoval, plaintiffs could not sue to
enforce the disparate impact regulations
because no private right of action existed
at all to enforce the statutory provision
(Section 602 of Title VI) from which the
regulations derived. Here, a right of action
does exist to enforce the regulations’
enabling statute (Section 504). But the
right of action that exists under Section
504 only allows plaintiffs to enforce
personal rights that Section 504 creates.
And the HUD regulations do not construe
a personal right under Section 504.
Similarly, this case also differs from
recent cases applying Sandoval. In
Jackson v. Birmingham Board of
Education, 309 F.3d 1333 (11th Cir. 2002),
cert. granted, 124 S. Ct. 2834 (2004) and
Peters v. Jenney, 327 F.3d 307 (4th Cir.
2003) the Eleventh and Fourth Circuits
addressed whether plaintiffs had a right of
action to enforce anti-re taliation
regulations that agencies promulgated
under Section 601 of Title VI and the
parallel provision in Title IX of the
Education Amendments of 1972, 20
U.S.C. § 1681. The issue in those cases
was not whether the anti-retaliation
regulations articulated personal rights.
Rather, the issue was whether the
regulation articulated a personal right that
Congress created in Title VI and Title IX,
respectively. This is the very type of
question raised in Sandoval itself. The
Fourth Circuit held that the regulations’
“retaliation prohibition is an interpretation
of § 601's core antidiscrimination
mandate.” 327 F.3d at 316. The Eleventh
Circuit, in contrast, held that “[b]ecause
Congress has not created a right through
Title IX to redress harms resulting from
retaliation, [the Department of Education’s
regulation] may not be read to create one
either.” 309 F.3d at 1346.
Our case is far different because it

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21
involves regu lations implementing
systemic rights and obligations. Whether
the HUD regulations construe Section 504
(or create new obligations), Section 504's
implied right of action only allows
plaintiffs to enforce personal rights that the
statute creates and not systemic
obligations. Thus, even if we were to
assume that Congress created the systemic
rights and obligations that the HUD
regulations articulate, plaintiffs may not
enforce those rights under Section 504
because they are not personal rights.
Finally, our decision is consistent
with past cases in which plaintiffs have
enforced regulations promulgated under
statutes (including Section 504) that did
not contain express rights of action. In
Disabled in Action of Pa. v. Sykes, 833
F.2d 1113 (3d Cir. 1987), for example, we
granted summary judgment to plaintiffs
seeking to enforce Department of
Transportation regulations promulgated
under Section 504. The regulations
required grantees to make transportation
facilities— in Sykes, a particular subway
station in Philadelphia—accessible when a
facility is substantially altered. Id. at 1119.
Those regulations required the City of
Philadelphia to make a common area
individually accessible; that is, an area that
any disabled individual had to access in
order to use the public facility. Thus the
regulations construed plaintiffs’ personal
right to access. See also Chaffin v. Kan.
State Fair Bd., 348 F.3d 850, 858 (10th
Cir. 2003) (finding cause of action to
enforce regulations promulgated under
Title II of the ADA ). That is entirely in
accord with our decision here.
D.
The reasons that compel us to
conclude that plaintiffs cannot maintain
their suit to enforce the HUD regulations
as a private cause of action under Section
504 also compel us to conclude that they
cannot sue to enforce the regulations
under Section 1983. As we held in South
Camden, plaintiffs can only enforce under
Section 1983 personal rights that Congress
creates. Whether or not Congress created
the systemic rights that the HUD
regulations articulate, plaintiffs cannot
enforce them under Section 1983 because
they are not personal rights.
III.
For the reasons stated above, we
will affirm the District Court’s judgment.
We emphasize, as the defendants concede,
see Appellee’s Br. 26, 32, that plaintiffs
may continue to bring suit to enforce their
personal rights to access directly under
Section 504. Thus those claims, as well as
plaintiffs’ motion seeking class
certification, remain before the District
Court. We note that the District Court will
have to determine the extent to which any
of the HUD regulations may be relevant to
determining whether defendants are liable
under Section 504. See, e.g., Nathanson,
926 F.2d at 1386. Moreover, if plaintiffs
continue to seek class certification as well
as injunctive relief, the Court will have to
address several inter-connected issues
over the course of the proceedings. See
Armstrong v. Davis, 275 F.3d 849, 860
(9th Cir. 2001) (“[W]here a district court

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grants system-wide injunctive relief, the
issues of standing, class certification, and
the propriety and scope of relief are often
intermingled.”). Finally, HUD retains its
independent authority—indeed, its
independent obligation—to enforce its
own regulations after many years of the
Housing Authority’s noncompliance.

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