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The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action |
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Brianne J. Gorod [View as PDF]
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113 Yale L.J. 939 (2004)
Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action.
While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc.
This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.
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