Since 1973 the United States District Court of the District of Columbia, in the course of adjudicating the suit Adams v. Richardson,1 has taken an active role in delineating the Department of Education's [228 U.S.App.D.C. 377] responsibilities in enforcing Title VI of the Civil Rights Act.2 The present appeal calls upon us to decide whether the district court appropriately declined to enjoin the Department from settling its Title VI enforcement proceeding against the North Carolina higher education system. The district court found that such an order was outside the scope of its prior decrees supervising the enforcement efforts of the Department.3 We affirm the district court.

Title VI of the Civil Rights Act4 prohibits discrimination by programs receiving federal financial assistance.5 Title VI directs the federal agencies which grant funds to issue rules to achieve nondiscrimination by recipients and authorizes the federal agencies to terminate grants to recipients which are found after hearing to have failed to comply with these rules.6 Plaintiffs brought suit in 1970 to compel the Department of Education (then Department of Health, Education and Welfare) to comply with its obligations under Title VI.7 In 1973 U.S. District Judge Pratt issued a comprehensive order which required the Department of HEW to commence enforcement proceedings against delinquent southern states within 120 days.8 On appeal, this court modified the order to require the states, in the area of higher education, first to submit plans based on Department of HEW guidelines, with enforcement actions to follow against those states which failed to file or to implement acceptable plans.9

The 1973 decree, as modified by this court, provided the basis for continuing litigation before Judge Pratt. In 1977 the district court ordered the Department to revoke its previous acceptance of some desegregation plans, including that submitted by North Carolina in 1974.10 The court found that the plans failed to meet the requirements set down by the Department and made inadequate progress towards desegregation of higher education.11 The Department was ordered to promulgate final criteria specifying the ingredients of an "acceptable higher education desegregation plan" and to require the states to submit revised plans which the Department would accept or reject.12

In March 1979, after North Carolina's revised plans had been rejected by the Department, the Department initiated enforcement proceedings against the State of North Carolina. In response, North Carolina filed suit against the Department in the U.S. District Court for the Eastern District of North Carolina to enjoin the Department from conducting the administrative hearing and from deferring payment of grants if the hearings were permitted to proceed.13 North Carolina contended that the enforcement proceeding was unauthorized by Title VI and violated various norms of constitutional and administrative law.14

[228 U.S.App.D.C. 378] The Department moved to transfer the action to the District of Columbia on the grounds that this court was the more appropriate forum for consideration of the legality of the Secretary's actions. The North Carolina U.S. District Court rejected this argument, holding that the District of Columbia court order did not preclude action in other courts to test the legality of specific enforcement measures undertaken by the Secretary.15 The North Carolina federal court then enjoined HEW deferral of aid during the enforcement proceeding,16 but declined to reach the merits of North Carolina's challenge to that proceeding. Rather, under the doctrine of primary jurisdiction, the court stayed the suit and retained jurisdiction pending completion of the administrative hearing.17

An administrative law judge in the Department of Education then began to hear the Department's evidence on the desegregation of the North Carolina system. At the same time, North Carolina and the Department carried on informal negotiations. Shortly after the Department had completed the presentation of its case in chief, these negotiations culminated in a settlement agreement which was embodied in a consent judgment issued in the North Carolina federal court.18 That court concluded that implementation of the terms of the settlement would bring the North Carolina higher education system into compliance with Title VI.19 The consent decree was the final judgment in North Carolina's suit against the Department, and its provisions terminated the administrative proceeding against North Carolina.20

Although appellants were limited intervenors in the administrative proceeding,21 they did not seek at any time to intervene in the suit before the North Carolina federal court and therefore had no standing to appeal the consent judgment.22 Instead, appellants sought to prevent entry of the decree by requesting that the District of Columbia federal court, before which they were plaintiffs, enjoin the Department of Education from acceding to the proposed settlement.23 U.S. District Judge Pratt ruled, however, that supervision of this Department decision was beyond the scope of his initial decree.24 This appeal ensued.[228 U.S.App.D.C. 379] II. ANALYSIS

Judge Pratt correctly interpreted the initial decree not to extend to supervision of the Department's settlement of its enforcement action against North Carolina. While we do not pass on the scope of the district court's authority with reference to other possible Department of Education actions,25 we affirm Judge Pratt's ruling that the injunction requested in this case would be inappropriate in light of the scope of his initial decree.

The purpose of Judge Pratt's 1973 decree was to require the Department to initiate appropriate enforcement proceedings under Title VI. It was directed at the Department's lassitude, if not recalcitrance, in fulfilling its responsibilities under that Act.26 However, Judge Pratt's 1973 decree, as affirmed with modifications by this court and as supplemented by him in 1977, did not purport to supervise or dictate the details of the Department's enforcement program, once that program culminated in an administrative proceeding, itself subject to judicial review, against a recipient state.

Judge Pratt's remedial decrees have been carefully crafted to embody this limitation. When the court ordered the Department to enforce the statute in 1973, it did not purport to dictate a fixed formula for choosing among these modes of implementation; i.e., it did not dictate specific compliance criteria but left the choice among lawful criteria to the discretion of the Department and of the states.27 Similarly, the particular terms of the amended criteria issued by the Department pursuant to the 1977 District of Columbia District Court order were never endorsed or compelled by the district court,28 and indeed have been subsequently revoked by the Department.29 Thus, the point of his various district court orders, as Judge Pratt explained, was not to specify what the final results of enforcement would be in every detail, nor to decree unalterable requirements for compliance with Title VI, but rather to have the Department initiate the process of enforcement, the process by [228 U.S.App.D.C. 380] which the specifics of compliance would then be determined.30

The district court orders were a rational means of assuring Department compliance with Title VI without an undue exercise of judicial control over the Department. Given the sweeping language of Title VI and the complexity of the educational systems to which it applies, the Department and the states have available to them many ways of implementing Title VI's goals of preventing discrimination in federally aided education. An enforcement proceeding or voluntary settlement may culminate in any one of these possible approaches to compliance; Title VI, as interpreted by Judge Pratt's decrees of 1973 and 1977, in the first instance gives responsibility to the agency and not the courts to choose among possible means of compliance. Hence, these decrees correct systemic defalcation on the part of the Department in fulfilling that responsibility, but do not, as we held in Adams v. Richardson, "resolve particular questions of compliance and noncompliance."31

Were the district court to read its initial decree to contemplate the relief plaintiffs now seek, that court would encroach upon the role of the institutions responsible for implementing Title VI and constitute this court as perpetual supervisor of the enforcement actions of the Department and of the desegregation policies of the states. Moreover, were the district court to interpret its prior decrees to embody its conception of a specific plan for compliance with Title VI, such an interpretation would effectively reverse the normal relations between agency and court. Normally the court reviews the decisions of the agency rather than the agency simply obeying prior directives of the courts: a court issues directives governing the agency's future course of conduct only in the course of reviewing some final administrative action. Thus Judge Pratt's decrees of 1973 and 1977 reviewed the agency's prior policy of neglect in initiating enforcement proceedings and corrected this policy by decrees directing the initiation of enforcement. But Judge Pratt did not further purport in these decrees to specify in advance particularized determinations of policy to be adopted by the Department in the course of enforcement proceedings. The District Judge correctly saw no justification for such an extension of the court's domain. Rather, the form of compliance with the norms of desegregation is to be determined in the course of an ongoing enforcement proceeding against an individual state.32

[228 U.S.App.D.C. 381] Finally, appellants' argument would have the effect of centralizing judicial control of Title VI implementation in the District of Columbia district court. But, as the Supreme Court has recognized, "[i]n cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home."33 Moreover, geographic dispersion of cases is one way to avoid excessive concentration of judicial power in a single tribunal. The district court decrees in this case reflect sensitivity to these principles.34 Under the limitation on its decrees established by the district court, state school systems who wish to challenge specific Department action with regard to their localities may choose to bring suit in the federal courts in their states. In contrast, the result of appellants' argument would be to vest in the federal courts of the District of Columbia plenary power to approve or disapprove the Department's Title VI decisions. We should hesitate to arrogate such power to ourselves.

If the limitation Judge Pratt recognized upon the scope of his authority enabled state instrumentalities to continue receipt of federal funding without judicial review, we would hesitate to accede to the decision below. In fact, however, such review is always available. The primary mechanism is a Title VI suit against the state itself. When such a suit is successful, failure of the Department to terminate funds would be an abuse of discretion, and would also evidence continuation of a general policy of non-enforcement violative of the district court's earlier decree. The point is, however, that direct relief under that decree is limited to situations which indicate persistence by the Department in the conduct that prompted it--namely, that the Department "has consciously and expressly adopted a general policy which is in effect an abdication of its statutory duty."35

[228 U.S.App.D.C. 382] We have no occasion in the context of the present case to speculate what Department decisions rise to the level of a general policy of abdication; or what particularized determinations, short of the failure to cut off funds to an instrumentality finally adjudged to be in violation of Title VI, constitute such clear evidence of a continuing policy of nonenforcement as to support invocation of our earlier decree. Suffice it to say that the Department's commencement of an enforcement action that is later settled through a compliance agreement approved by an appropriate district court does not qualify.

Moreover, after an administrative hearing is initiated, judicial consideration of the particular compliance decisions of the Department and the states may generally proceed by normal processes of judicial review. For example, if the administrative proceedings against North Carolina had culminated in a decision issued by the administrative law judge and adopted by the Department, the state or appellants here (intervenors in the administrative proceeding) would have been free to seek judicial review in federal court.36

The normal course of judicial review was similarly available for appellants in the context of the enforcement proceeding in question here. Because they assert claims which raise issues of law and fact common to the claims asserted by North Carolina in its suit against the Department, appellants could have sought to intervene in that suit;37 indeed, they may have had a [228 U.S.App.D.C. 383] right to intervene, because they claim "an interest relating to the ... transaction which is the subject of the action and [are] so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest ...."38 Had appellants intervened in the North Carolina U.S. District Court proceeding, they could have taken an appeal to the Fourth Circuit Court of Appeals and then petitioned the United States Supreme Court.39 In short, appellants had ample opportunity to assert their rights through the normal routes of judicial review. The district court therefore correctly declined to exercise extraordinary supervisory power over the Department to further appellants' interests: These interests could have been [228 U.S.App.D.C. 384] fully protected by intervention in a pending lawsuit which provided an appropriate forum for consideration of appellants' claims.40

Our holding that appellants' failure to intervene in the North Carolina suit undermines their claims before us derives from more than merely an overscrupulous regard for the niceties of appellate procedure. This failure has severe practical consequences in the present case. Because the consent decree has been entered, appellants must now request that this court order the Department to continue the enforcement proceeding against North Carolina and to petition the North Carolina U.S. District Court for relief from its obligations under the consent decree. Such an order by this court would disturb the fundamental balance our rules of procedure strike, not only between courts and executive agencies, but also among the powers of coordinate federal tribunals and the rights of parties who are or ought to be before those tribunals.

Because they declined to present their claims before the federal court in North Carolina, appellants now find themselves in the position of asking the District of Columbia federal courts to disregard a judgment of the North Carolina federal court. This posture of the case has several consequences. Initially, because the consent decree establishes rights which North Carolina is entitled to protect against subsequent judicial interference, effective relief by the district court here requires that North Carolina be a party before it. Any effective relief granted by this court would be in derogation of North Carolina's rights as established by the consent decree in a U.S. District Court outside this circuit.

In this respect the relief sought by appellants places them in a dilemma. Under the doctrine of standing, article III is held to require plaintiffs to allege an "actual injury" and one "likely to be redressed by a favorable decision."41 So, if on the one hand, a court order compelling the Department to withdraw from the consent judgment called for only a gesture, a pro forma motion by the Department, this would neither provide relief substantial enough nor evidence enough of any real injury which was being redressed to satisfy the "case or controversy" requirement. The government would simply ask the North Carolina federal court to reconsider its decision as to whether the terms of the consent judgment were "fair and adequate"; that court would endorse the agreement once again; and the government would remain bound.

On the other hand, an order from this court that the government use all efforts to withdraw from the settlement agreement might have greater effect, if it were somehow to influence the North Carolina federal court's reevaluation of the merits of its own [228 U.S.App.D.C. 385] prior decision. But insofar as this is the case, the judgment of this court will have substantially undermined the rights of North Carolina as secured by the consent judgment. North Carolina then becomes a party "needed for just adjudication," and arguably indispensable to the proceeding here under the terms of Rule 19(b).42

In short, the only effectual relief from the U.S. District Court consent judgment is relief which undermines the rights of North Carolina and thus requires that the state be before a federal court in the District of Columbia--which it is not. The more clearly a "case or controversy" is defined, the more meaningful the relief sought, the more certainly North Carolina is an indispensable party.

Moreover, the relief now requested by appellants would place the Secretary of Education in the position of disobeying either U.S. District Judge Pratt's order or the order of U.S. District Judge Dupree in North Carolina. Appellants ask us to order the government's agents to do everything within their power to repudiate or disrupt the North Carolina consent judgment and then to hold those agents in contempt if they fail in doing so. Such relief would create an unseemly, indeed an intolerable, situation.43

We thus hold that, in the circumstances of this case, Judge Pratt correctly interpreted his prior decrees not to apply to the Department's actions in the present case. For these reasons, the judgment of the district court is

Affirmed.

J. SKELLY WRIGHT, Circuit Judge, with whom Chief Judge SPOTTSWOOD W. ROBINSON, III, and Circuit Judges WALD and MIKVA concur as to Parts I, II, III, and V, dissenting:

                  TABLE OF CONTENTS                    Page
  I. BACKGROUND ...................................... 174
 II.  Title VI and the Adams ORDERS ................... 180
      A. Title VI Enforcement Scheme ................. 181
                                                    $
      B. The Adams Orders ............................ 183
         1. En Banc decision ......................... 183
         2. District Court decrees ................... 184
      C. Requesting Relief Under This Scheme ......... 186
III.  THE COURTS VISION OF THE ENFORCEMENT
     SCHEME .......................................... 188
      A. Title VI Suit Against Fund Recipient ........ 188
      B. Justifying This Alternative Vision .......... 191
         1. Decentralizing judicial administration
            of Title VI .............................. 191
         2. Procedural balance among courts
            and parties .............................. 194
            a. Mandatory intervention ................ 194
            b. Indispensable parties ................. 198
         3. Recognizing North Carolina court's
            judgment ................................. 200
      C. Mootness on Appeal .......................... 203
 IV.  THE DEPARTMENT HAS NOT FULFILLED ITS
     LEGAL OBLIGATIONS ............................... 204
      A. Abandonment of Desegregation
         Criteria .................................... 204
      B. Failure to Correst Deficiencies of the
         Prior Plan .................................. 207
         1. Desegregation of student bodies .......... 207
         2. Desegregation of faculties ............... 208
         3. Reduction of program duplication ......... 208
         4. Enhancement of black institutions ........ 209
  V. CONCLUSION ...................................... 209

[228 U.S.App.D.C. 386] In Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1976 & Supp. V 1981), Congress adopted a federal statutory solution to the century-old problems of segregation and racial discrimination in institutions of higher education. Section 601 of the Act declares that "[n]o person in the United States shall, on the ground of race, color, or national origin, * * * be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Section 602 then imposes upon each federal agency empowered to extend federal aid a "mandatory duty * * * to utilize the funds * * * to enforce civil rights requirements," H.R.Rep. No. 914, 88th Cong., 1st Sess., Pt. 1 at 76 (1963), U.S.Code Cong. & Admin.News 1964, pp. 2355, 2391, and requires these agencies to terminate the flow of funds to recipients found in violation of the Act.1 42 U.S.C. § 2000d-1. Congress originally assigned to the Department of Health, Education and Welfare (HEW) the task of effectuating Title VI with respect to institutions of higher education, and later transferred this "mandatory duty" to the Department of Education (DE).2

Beginning in 1970 appellants, the Adams plaintiffs,3 brought a series of suits under Section 603 of the Act, 42 U.S.C. § 2000d-2, to force HEW to carry out its mandatory duty under Section 602 to enforce the nondiscrimination provisions with respect to the institutions of higher education in ten Southern states.4 On at least three occasions--twice in the District Court of this circuit5 (hereafter the District Court) and [228 U.S.App.D.C. 387] once in this court6--appellants' efforts were vindicated: The courts of this circuit issued orders requiring HEW to carry out its Section 602 duties and thereby to implement the mandate to end racial discrimination that is stated in Section 601. However, on June 25, 1981, when the Adams plaintiffs returned to the District Court--this time seeking to enjoin the Secretary of Education (Secretary) from entering into an allegedly unlawful agreement with the State of North Carolina--the District Court found itself without the statutory authority to grant the requested relief.7 This court now affirms on the theory that the relief requested was outside the scope of the prior orders of the courts of this circuit. Maj. op. at 163. In so holding the court necessarily rules that Section 603 does not authorize judicial review of a final Department compliance decision once the agency has initiated an enforcement proceeding against a particular state.8 See maj. op. at 165, 166 n. 30, 166-167 n. 32, 168.

I respectfully dissent. In my judgment, the line the court draws between agency action that is and is not subject to direct judicial review under Section 603 is contrary to the plain language of the statute and antithetical to our entire jurisprudence of administrative law. Section 603 of the Civil Rights Act unambiguously provides aggrieved persons with a right to challenge "[a]ny [D]epartment or agency action," including the Department's final decision to continue funding a system of higher education that allegedly discriminates on the basis of race. Section 602 requires the Department to enforce the nondiscrimination provision of the statute, and Section 603 authorizes aggrieved persons directly to obtain review of Department action taken pursuant to that statutory mandate. The court orders previously issued in this litigation were, of necessity, based on Section 603, and hence I believe that appellants' request for relief easily fell within the scope of those orders. But even if no prior orders had ever issued, appellants would have a separate and enforceable right under Section 603 to obtain relief against allegedly arbitrary and capricious Department action in the venue of their choice. Final Department action is always subject to judicial review, unless explicitly precluded by statute or committed to agency discretion by law. 5 U.S.C. §§ 701-706 (1976). Section 603 obviously does neither.

In light of the enforcement scheme Congress created in Sections 602 and 603, I would remand this case to the District Court. I would instruct it to determine whether the Department has followed its own rules and regulations in assessing the compliance of the State of North Carolina with the Act, and, should it find that the Department ignored its own criteria for what constitutes an acceptable desegregation plan, to order the Department to resume the administrative hearing process that is condition precedent to a termination of funds. The District Court's role in this litigation, as in any other case where it reviews final administrative action, is to review Department resolutions of fund recipients' compliance, not to resolve these questions itself or to order a termination of funds.

[228 U.S.App.D.C. 388] In Part I of this dissent I detail appellants' diligent efforts over the past thirteen years to force the Department to carry out its mandatory Section 602 duties. Part II then outlines the scheme Congress created in Sections 602 and 603 for enforcing the nondiscrimination proscription and explains how the prior orders of the courts of this circuit fit within that scheme. Part III argues that the majority's opinion substitutes its own vision of an ideal enforcement scheme for the one which Title VI and our rules of civil procedure jointly create. More specifically, I will show: that suits against the Department, not the fund recipient, are the primary mechanism Title VI creates for obtaining judicial review; that the venue laws give plaintiffs their choice of forum for bringing such lawsuits; and that no principle of procedure or equity supports the majority's effort to affirm the District Court's forfeiture of its statutory authority to review challenges to final Department action. Finally, Part IV demonstrates that, were the District Court to evaluate the merits of this case, it would find, as the United States Commission on Civil Rights has already found,9 that the Department arbitrarily and capriciously abandoned its own criteria for an adequate desegregation plan when it accepted the North Carolina settlement. The Department has thus abdicated its duty to enforce the law and the District Court should take all steps necessary to ensure that it does not do so again in the future.

Congress passed Title VI in 1964 to prohibit racial and ethnic discrimination in education programs financed with federal funds.10 But it was not until January 1969 [228 U.S.App.D.C. 389] that HEW took its first steps to enforce the nondiscrimination principle embodied in Section 601. At that time the Department sent letters of noncompliance to ten states, including North Carolina.11 The letters indicated that each state was operating a segregated system of higher education and requested that each state submit a plan for desegregating its system within 120 days.12 North Carolina and four other states13 totally ignored this request, while the five others14 submitted plans that HEW found totally unacceptable. But, following its announced policy of nonenforcement,15 HEW took no further action against any of the states.16

The Adams plaintiffs sued HEW officials for ignoring their responsibilities under Title VI, alleging that HEW's inaction aggrieved persons in each of ten states. The District Court found that plaintiffs had stated an enforceable cause of action and concluded that HEW had "not properly fulfilled its obligation under Title VI * * * to eliminate the vestiges of past policies and practices of segregation in programs receiving federal financial assistance." Adams v. Richardson, 351 F. Supp. 636, 637 (D.D.C.1972) (Memorandum Opinion). The District Court further declared that the time for securing voluntary compliance had "long since passed" and that HEW's continued financial assistance to segregated systems of higher education violated plaintiffs' rights under Title VI. Adams v. Richardson, 356 F. Supp. 92, 94 (D.D.C.1973) (Declaratory Judgment and Injunction Order). It therefore ordered HEW to effect compliance with Title VI in the ten states--by instituting administrative enforcement proceedings or by any other means authorized by law--and thereby to vindicate plaintiffs' rights. Id. The court's order, like the plaintiffs' original complaint, was aimed at requiring HEW either to obtain compliance with Title VI or to cease distributing federal funds to the institutions of higher education in those ten states.

On appeal to this court the government argued that its actions were not reviewable in any court of law17 and asserted that, in any event, the lower court's order "virtually transfer[red] the responsibility for the administration of Title VI to a single district judge."18 This court, sitting en banc, unanimously rejected both arguments and affirmed the District Court. Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc ) (per curiam ).19 It explicitly rejected [228 U.S.App.D.C. 390] HEW's arguments that enforcement of Title VI was committed to agency discretion and that review of such action was especially not within the jurisdiction of the District Court for the District of Columbia. Id. at 1161-1163. The en banc court noted that the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1976), commits only certain narrowly defined actions to agency discretion and concluded that Title VI stated sufficiently specific law for a court to apply on review. Id. at 1161-1162. Moreover, the court held that the APA and Title VI together allow an aggrieved person to bring suit in any court of competent jurisdiction and venue "to assure that the agency properly construes its statutory obligations, and that the policies it adopts and implements are consistent with those duties and not a negation of them." Id. at 1163-1164.

Following the court's decision, HEW identified by letter the critical requirements of acceptable desegregation plans for each of the ten states. In response, North Carolina and seven other states20 submitted higher education plans.21 In June 1974 HEW approved those plans. In 1975, however, appellants requested further relief, emphasizing that numerous deficiencies in the approved plans infringed upon their Title VI rights.22 Appellants requested that HEW be required to revoke its approval of the desegregation plans that North Carolina and the other states had submitted in 1974.23 Appellants also asked that the states be directed to submit new plans that actually would comply with Title VI.

In 1977 the District Court once again found that HEW had failed to vindicate plaintiffs' Title VI rights. Adams v. Califano, 430 F. Supp. 118 (D.D.C.1977) (Second Supplemental Order).24 The court held that the desegregation plans submitted by North Carolina and the five other states25 "did not meet important desegregation requirements" earlier specified by HEW and "have failed to achieve significant progress toward higher education desegregation." Id. at 119. The court therefore ordered HEW to notify the states, including North Carolina, that the plans submitted did not satisfy requirements that were critical for compliance with Title VI. Id. at 121.

In addition, the court ordered HEW to transmit to the states, serve upon appellants, and file with the court "final guidelines or criteria specifying the ingredients of an acceptable higher education desegregation [228 U.S.App.D.C. 391] plan." Id. In particular, the court recognized:

the need to obtain specific commitments necessary for a workable higher education desegregation plan * * * concerning admission, recruitment, and retention of students * * *, concerning the placement and duplication of program offerings among institutions * * *, the role and the enhancement of Black institutions * * *, and concerning changes in the racial composition of the faculties involved * * *. * * *

Id. at 120.

In directing the parties to draft the order, the District Judge made clear that he wanted the Department to be "under the compulsion of a Court Order to submit to the states certain specific requirements which the states must respond to * * *."26 This directive reflected the concern of this court en banc that HEW had "not yet formulated guidelines for desegregating state-wide systems of higher learning * * *." 480 F.2d at 1164.27 The District Court therefore ordered HEW to require the six states to submit desegregation plans revised in accordance with these criteria within 60 days of their receipt, and to accept or reject such submissions within 120 days thereafter. 430 F. Supp. at 121.

Pursuant to both the "specific direction" of the District Court and the en banc opinion of this court, HEW issued "Amended Criteria Specifying Ingredients of Acceptable Plans to Desegregate State Systems of Public Higher Education," 42 Fed.Reg. 40780 (1977) (hereafter Amended Criteria ), Appendix of Plaintiffs-Appellants (App.) 102. By the Department's own concession,28 these decisions interpreted both Title VI29 and the Constitution30 as imposing an [228 U.S.App.D.C. 392] affirmative duty on the states to devise plans that would be effective in desegregating higher education systems.31 The Department recognized that the court had directed it "to prepare criteria which would identify for the states the specific elements to be included in their revised desegregation plans." 42 Fed.Reg. at 40781, App. 103.32 After further negotiations with all of the affected states and the Adams plaintiffs,33 HEW then promulgated "Revised Criteria" to provide "specific guidance to the states and at the same time [be] sufficiently flexible to provide for circumstances which may vary from state to state." See Revised Criteria Specifying Ingredients of Acceptable Plans to Desegregate State School Systems of Public Higher Education, 43 Fed.Reg. 6658 (1978) (emphasis added) (hereafter Revised Criteria ). Thus the criteria were developed with the unique needs and circumstances of each of the relevant states, including North Carolina, in mind.34

Following publication of the criteria, HEW attempted to secure revised plans from the six states. By early 1979 the Department had obtained acceptable plans from five of them.35 But HEW's efforts to negotiate with North Carolina proved fruitless.36 To begin with, HEW would not accede to North Carolina's demand that the settlement offer be submitted to a court in the form of a proposed consent decree. It explained that "HEW's enforcement of Title VI would be irreparably undermined if a recipient of funds could routinely by-pass statutorily-mandated administrative compliance procedures by the expedient of filing a lawsuit and then obtaining a substantive consent decree * * *."37 Rather, the matter could "be settled only by the submission of an acceptable desegregation plan, to be monitored and enforced administratively, with the lawsuit dismissed by consent."38 Second, HEW concluded that the measures North Carolina had proposed in its latest submission offered "no realistic promise * * * of desegregating the UNC [University of North Carolina] system in the foreseeable future, as the law requires."39 Indeed, the government asserted [228 U.S.App.D.C. 393] that North Carolina's current proposal was "a large step backwards from the positions which pre-dated the lawsuit,"40 and was unacceptable because it did not meet the requirements of the Revised Criteria.41

Having failed to obtain an acceptable plan, HEW filed a Notice of Opportunity for Hearing in April 1979 to determine whether federal funds to assist higher education in North Carolina should be terminated. North Carolina immediately filed suit against HEW in the United States District Court for the Eastern District of North Carolina (hereafter the North Carolina court). State of North Carolina v. Dep't of HEW, 480 F. Supp. 929 (E.D.N.C.1979). North Carolina challenged HEW's effort to enforce Title VI and sought, inter alia, to enjoin the hearing and HEW's deferral of federal aid during the hearing's progress.42 The government, in response, requested that the North Carolina court either dismiss the lawsuit for lack of jurisdiction, id. at 934,43 or transfer the action to the District Court for the District of Columbia, id. at 931.44 The North Carolina court refused to enjoin the administrative hearing, but restrained HEW from imposing a limited deferral of funds.45 Id. at 939. It also refused to transfer the case to the District of Columbia or to dismiss for lack of jurisdiction. Id. at 931, 935. Instead, it stayed judicial proceedings until the agency action had run its course since "technical questions of non-compliance should, initially, be left to the Secretary of HEW with judicial review as a final check on his methodologies." Id. at 937 n. 4, 940 n. 8. The government apparently did not appeal these adverse rulings because it had prevailed in its efforts to start the administrative hearing process.

DE commenced a formal hearing before an administrative law judge (ALJ) in July 1980. The Adams plaintiffs were allowed a limited right to intervene. Over a period of nine months the parties presented their affirmative cases, creating a record of 15,000 pages and 500 exhibits. On June 20, 1981, however, the hearing was aborted because the government and North Carolina agreed finally to settle their dispute.46 Appellants were notified of the proposed agreement and were served with a copy of it two days later.47

On June 25, 1981 the Adams plaintiffs went to the District Court seeking a temporary [228 U.S.App.D.C. 394] restraining order and preliminary injunction to stop the Secretary from accepting the proposed agreement. The District Court denied the requested relief. Adams v. Bell, D.D.C. Civil Action No. 70-3095 (June 25, 1981), App. 26-30. The Adams plaintiffs filed their appeal the next day.

Before this court could consider the merits of their appeal, the Secretary accepted the settlement. He then joined with North Carolina in presenting the settlement to the North Carolina court for its imprimatur. The North Carolina court promptly scheduled a hearing regarding the proposed decree for July 13, 1981, and gave the Adams plaintiffs notice and opportunity to appear as amicus curiae. The Adams plaintiffs never sought to intervene as a party to the action48 and the North Carolina court did not inquire whether they were parties needed for a just adjudication.49 DE and North Carolina filed memoranda in support of the decree and attached as support the record of the administrative hearing as it had been completed to date. The Adams plaintiffs filed as amicus a memorandum in opposition, and contended that, without rebuttal evidence and administrative findings, the administrative record was an inadequate basis for judging the proposed decree. Nevertheless, on July 17, 1981 the North Carolina court approved the proposed consent decree. North Carolina v. Dep't of Education, E.D.N.C. No. 79-217-CIV-5 (Memorandum Decision, July 17, 1981).50

Today, this court affirms the District Court's June 25, 1981 denial of plaintiffs' request for relief. It apparently agrees with the District Judge that the requested relief "was outside the scope of [the District Court's] prior decrees supervising the enforcement efforts of the Department." Maj. op. at 163. In the court's view, these prior orders were limited--and necessarily so--to situations which indicate that the Department has adopted a general policy of nonenforcement. Thus neither these orders nor the statute authorize the District Court to review a compliance agreement entered into after the Department had started an administrative enforcement proceeding against the state. See maj. op. at 162-163, 165, 166 n. 30, 166, 168. Rather, in the court's view, appellants' only recourse against such compliance agreements is through a Title VI suit against the state itself or through intervention in a court reviewing the settlement at the request of the government and the state. Maj. op. at 167, 168-170. I think that both the District Court and this court are plainly wrong.

In the decision below the District Court found that its authority to review agency action was limited to judging agency compliance "with its statutory [and] constitutional responsibilities,"51 and did not extend to review of specific questions concerning the "individual states and school districts with which the Agency has to deal."52 Therefore, the District Court concluded that [228 U.S.App.D.C. 395] it "wholly lacked jurisdiction" to enjoin the Department from accepting a settlement that allegedly did not comport with the Department's own criteria for what constitutes an acceptable desegregation plan.53 To understand why the District Court had authority to determine the merits of appellants' claim, and therefore to grant the requested relief,54 it is necessary to review the scheme Congress created for enforcing Title VI and how the prior decrees of the courts of this circuit fit within that scheme.

Section 601 of the Civil Rights Act gives every person participating in a program receiving federal financial assistance the right to be free from racial or ethnic discrimination. 42 U.S.C. § 2000d. Congress was plainly dissatisfied with agency efforts to ensure nondiscriminatory use of federal funds and hoped to root out the vestiges of such discrimination by conditioning distribution of federal funds on its cessation.55 But Congress enacted a very elaborate scheme for implementing this plan because some funding terminations harm beneficiaries of programs funded as much as they harm fund recipients themselves.56 This scheme is embodied principally in Sections 602 and 603 of the Act. See 42 U.S.C. §§ 2000d-1 and 2000d-2.

Section 602 requires all federal agencies to effectuate the antidiscrimination provisions of the law. 42 U.S.C. § 2000d-1. It unambiguously contemplates that agency action is the principal mechanism for enforcing the federal policy of nondiscrimination: Every federal department or agency furnishing financial support is to implement the nondiscrimination proscription by appropriate rule or regulation. Id. If a fund recipient does not comply with those rules and regulations, then the department or agency must terminate the flow of funds. Id.

But Section 602 also indicates that termination of funds is a serious enforcement step, and an agency is not to terminate funds without exhausting every possibility for conciliation. Thus the Department must make every effort to secure compliance by voluntary means. Id. If the Department determines that compliance by voluntary means is not possible, then it [228 U.S.App.D.C. 396] must initiate the formal proceedings that are condition precedent to a termination of funds.57 Id. But even during these formal proceedings the department or agency must seek voluntary compliance, and any agreements reached during this period are to be given the same effect as if they had been negotiated before the "setting down of [the] case for hearing." Adams v. Richardson, supra, 480 F.2d at 1165. Finally, prior notice must be given to Congress in each case where, at the conclusion of the formal proceedings, the department or agency proposes to terminate funds. 42 U.S.C. § 2000d-1.

Once the Department has exhausted its efforts under Section 602, as indicated by its "final" finding of compliance or noncompliance (and the concomitant decision to continue or terminate funding), judicial review becomes available under the terms of Section 603. Id. § 2000d-2. Section 603 first renders "[a]ny department or agency action taken pursuant to section * * * subject to such judicial review as may otherwise be provided by law * * *." Id. One such other provision in law, as specifically identified in the legislative history of the Act,58 is the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1976). The APA entitles any person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of [Title VI]" to obtain judicial review. Id. § 702. Furthermore, Section 603 independently authorizes an aggrieved person, including a state or political subdivision thereof, to obtain judicial review only when the Department makes a "final" finding of noncompliance and orders a termination of funds. 42 U.S.C. § 2000d-2. Under both provisions of Section 603, the persons aggrieved are entitled to judicial review in the venue of their choice. 28 U.S.C. § 1391(e) (1976). But, in either case, courts are not to resolve particular questions of fund recipient compliance or noncompliance; rather, they are to review--in the traditional and deferential manner in which courts review agency action--the Department's resolution of these compliance questions. See Adams v. Richardson, supra, 480 F.2d at 1164 n. 6 (discussing nature of judicial review in these actions).59

[228 U.S.App.D.C. 397] This traditional judicial review of administrative action is all that appellants asked for in the District Court. They wanted the District Court to determine whether the Department's application (or nonapplication) of the Revised Criteria in the North Carolina settlement was a proper and consistent use of the rules the Department has adopted in implementing its duties under Section 602.60 Appellants alleged that they were aggrieved by the proposed settlement and that the Secretary would be acting without authority of law if he accepted it.61 In my judgment, Section 603 and the APA unambiguously give appellants a right to review of this final agency action.62

In dismissing appellants' challenge to the Department's proposed acceptance of the settlement, this court and the District Court hardly cite to Section 603 or to the APA. Rather, they rely on a footnote in the 1973 en banc Adams decision.63 In footnote 5 of that opinion the court stated, in part:

Far from dictating the final result with regard to any of these districts, the order [of the District Court issued in 1972] merely requires initiation of a process which, excepting contemptuous conduct, will then pass beyond the District Court's continuing control and supervision. * * *

Adams v. Richardson, supra, 480 F.2d at 1163 n. 5. This court and the District Court now interpret this footnote as requiring only that the Department initiate an enforcement proceeding once it has determined that voluntary compliance is not possible.64 As a corollary, they read this footnote as prohibiting District Court review of particular compliance decisions the Department makes after the enforcement proceeding has begun.65 This literal reading of footnote 5 cannot stand alone against either the remainder of the 1973 en banc decision or the District Court's 1977 order, both of which followed directly from the Title VI enforcement scheme.

1. En banc decision.

To begin with, the 1973 en banc decision recognized that Section 603 and the APA authorize judicial review of all agency action that allegedly aggrieves persons entitled to the protection of Title VI.66 The [228 U.S.App.D.C. 398] court held that enforcement was not a matter committed to absolute agency discretion67 and that Title VI and the APA authorized courts to take all steps necessary to ensure that HEW "end segregation in public educational institutions receiving federal funds." Id. at 1161. The en banc court understood that HEW--and not the courts around the country--would initially resolve particular questions of fund recipient compliance. Id. at 1163. But the court also recognized that reviewing courts should assure that the agency "properly construe[d] its statutory obligations, and that the policies it adopt[ed] and implement[ed] [were] consistent with [its statutory] duties and not a negation of them." Id. at 1163-1164. This type of review, the court noted in yet another footnote, "is consistent with the nature of judicial review exercised in other situations." Id. at 1164 n. 6.68 Thus, though the court did not want the District Court substituting its judgment for that of the Department, neither did it intend to insulate the Department's final decisions from review. Denying the District Court's authority to assess the merits of the settlement in this case, however, would prevent it from performing that review function.

Furthermore, this court's statement in footnote 5--that enforcement would "pass beyond the District Court's continuing control and supervision" after initiation of administrative proceedings--simply reflected the status of the case as it had been presented to the court. At that time HEW had never before initiated an enforcement proceeding.69 The case was one of agency inaction and this court, as it has done in other circumstances, see, e.g., WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C.Cir.1971), was requiring the agency to act. The court's decision was lowering the longstanding bar to judicial supervision of agency decisions to prosecute. It is inconceivable that the court was simultaneously erecting a new bar to traditional judicial review of agency enforcement action. Footnote 5 merely reflects the time-honored wisdom that courts are not to interfere with the conduct of ongoing administrative proceedings. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 463, 82 L. Ed. 638 (1938). It does not and cannot bar normal judicial review of final agency action.70 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820, 28 L. Ed. 2d 136 (1971). To read it as doing so undermines Section 603 and our accepted jurisprudence of administrative law.

2. District Court decrees.

The District Court's own prior orders reflect this unexceptional interpretation of the statute and the en banc decision. In 1977 this case did return to the District Court's "control and supervision" for review of agency resolutions of fund recipient compliance with Title VI. Adams v. Califano, supra, 430 F. Supp. 118. First, the District Court ordered the Department to revoke its acceptance of North Carolina's 1974 Desegregation Plan and the plans of five other states because they were "not adequate to comply with Title VI of the 1964 Civil Rights Act."71 The District Court found [228 U.S.App.D.C. 399] much evidence that HEW's acceptance of these plans was contrary to law.72 Second, in 1977 the District Court ordered the Department to transmit "final guidelines"73 that would constitute "specific requirements which the state must respond to * * *."74 It ruled that HEW had the responsibility to devise those criteria and to obtain "specific commitments" from the states.75 Pursuant to the court's "specific direction,"76 the Department developed those criteria and subsequently applied them to the five other states.77 Anything less would have reduced "the entire process to a meaningless exchange of theory rather than a determination of fact." Mayor & City Council of Baltimore v. Mathews, 562 F.2d 914, 922 (4th Cir.1977).78

These actions in 1977 are antithetical to the court's attempt to narrow the District Court's authority in this case. Both then and now appellants have argued that the Department accepted voluntary desegregation plans that fail to meet "the requirements of [DE's] own detailed letters [and Desegregation Criteria] * * *."79 In both cases appellants have complained that they are aggrieved within the meaning of Title VI. The two cases are simply indistinguishable; if the District Court had authority to review agency action in 1977, it had that exact same authority in 1981.80

[228 U.S.App.D.C. 400] I am therefore at a considerable loss to understand this court's assertion that District Court review would "reverse the normal relations between agency and court." Maj. op. at 166. The District Court's 1973 and 1977 orders required the Department to specify the criteria by which voluntary compliance agreements would be judged, as this court81 and the agency's own regulations82 commanded the Department to do. The Department complied with those orders and assumed full responsibility for the criteria it developed.83 The injunction appellants seek in this case would simply require the Department to follow its own rules for compliance with Title VI.84 This is hardly, as the court asserts, see maj. op. at 166, an encroachment upon the role of the institution responsible for implementing Title VI.85 Rather, it is part and parcel of the traditional relations between agency and court, wherein agencies resolve particular questions and courts provide limited review of their actions.

It should now be exceedingly clear that appellants' request for relief should have been granted. The prior orders of the [228 U.S.App.D.C. 401] courts of this circuit contemplate that final Department action will be subject to judicial review in the court below. Moreover, it should also be clear that even if no prior orders had ever issued in this litigation, appellants would be entitled to the relief they requested. Section 603 unambiguously establishes a separate and enforceable right by which aggrieved persons may directly challenge allegedly arbitrary and capricious Department action in the venue of their choice. See Cannon v. University of Chicago, 441 U.S. 677, 695-697 & n. 21, 702-703 & n. 33, 99 S. Ct. 1946, 1957-1958 & n. 21, 1960 & n. 33, 60 L. Ed. 2d 560 (1979); Hills v. Gautreaux, 425 U.S. 284, 286, 96 S. Ct. 1538, 1541, 47 L. Ed. 2d 792 (1975). The Department's agreement to continue providing funds to the State of North Carolina is final agency action ripe for review, and the denial of appellants' request for relief, without considering its merits, deprives those litigants of their statutory right to judicial review in the forum of their choice.

For this court to deny appellants' request for relief, without considering its merits, the court must necessarily hold that Section 603 does not state a claim upon which the District Court could have based the requested relief. Appellants continually have urged that the District Court's jurisdiction is "the very same jurisdiction that began this case; that the government is giving substantial federal funds to [North Carolina]."86 This case began with appellants requesting, and the District Court granting, relief under Section 603 via six separate statutes, including the APA.87 Appellants' 1981 motion for further relief invoked these same six jurisdictional bases, and dismissal is inappropriate if any of them state a cause upon which relief can be granted.88

Indeed, even if appellants' 1981 motion was somehow deficient, it cannot "be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts" that would support awarding the requested relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). A basic tenet of the modern rules of civil procedure is that courts must consider a request for relief if the plaintiff can succeed on any theory, whether advanced in the complaint or not.89 Courts must always allow plaintiffs to amend their complaints appropriately,90 and courts can deny plaintiffs this opportunity only if it appears to a certainty that they cannot state a valid claim.91 Since Section 603 creates such a possibility, dismissal is appropriate only if it, independent [228 U.S.App.D.C. 402] of the prior orders of the courts of this circuit, does not state a claim upon which relief can be granted. But since Section 603 does state such a claim, this court and the District Court are in plain error.

III. THE COURT'S VISION OF THE ENFORCEMENT SCHEME

Rather than read Section 603 by its plain terms to apply to "any [final] department or agency action," 42 U.S.C. § 2000d-2, the court offers a different vision of the Title VI enforcement scheme. In this vision persons aggrieved by the continued federal funding of allegedly discriminatory education programs may directly challenge only Department action (or inaction) that amounts to systemic defalcation of the Department's statutory responsibility. Maj. op. at 166, 168. Though the court does not have occasion to specify what Department decisions rise to the level of a general policy of abdication, see id. at 168, it is clear that once the Department initiates enforcement action against a particular fund recipient aggrieved persons cannot resort to Section 603 to vindicate their statutory rights. Id. Rather, in this vision, to bring a situation-specific complaint, aggrieved persons must resort to a Title VI suit against the fund recipient or to intervention in a suit brought by the fund recipient against the Department. Id. at 167, 168-170. Since appellants in this case did not resort to these more "normal" routes of judicial review, the court concludes that they have exhausted, by omission, all available avenues by which they could have obtained relief. Id. at 169 n. 38, 169-170. It therefore affirms their dismissal.92

In this part I examine the court's alternative vision of Title VI enforcement and the interpretive constructs it employs to erect this scheme. After analyzing--and rejecting--both this alternative scheme and the constructs upon which it is based, I then discuss the more difficult issue this appeal presents: whether the case has become moot. I conclude that the case has not become moot and therefore that appellants should be awarded appropriate relief.

Under the court's version of Title VI's enforcement scheme, the "primary mechanism" for judicial review of the Department's final decision to continue funding an allegedly discriminatory system of higher education "is a Title VI suit against the state itself." Id. at 167. Of course, the court does not cite to any statutory provision authorizing such a suit. Its omission is easy to explain: No such provision exists. I warmly welcome the court's suggestion that [228 U.S.App.D.C. 403] a private right of action exists; I too believe that private suits against fund recipients are an appropriate and essential mechanism for adequately enforcing Title VI.93 But I must point out that a private action against a fund recipient is judicially implied, and a judicially implied action cannot displace an express statutory one.94 Congress expressly contemplated that agency action would be the "primary mechanism" by which Title VI is enforced, see 42 U.S.C. § 2000d-1, and provided for review of that agency action through the traditional mode--the APA, see 42 U.S.C. § 2000d-2.95 When the court substitutes its implied action against the fund recipient for Congress' express action against the Department, it abrogates this legislative scheme.

I applaud the court's approval of the dual enforcement mechanism that has evolved under Title VI. See maj. op. at 167-168 n. 35. But the court's vision of this dual enforcement scheme apparently is of a different sort from that conceived by other courts--most particularly the Supreme Court. See Cannon v. University of Chicago, supra, 441 U.S. at 703-708 & n. 41, 99 S. Ct. at 1960-1963 & n. 41 (discussing interrelationship of private and public enforcement). These courts imply private suits against fund recipients to allow more direct and limited attacks on specific instances of discrimination.96 Awarding individual relief often will efficiently remedy the injury suffered and obviate the need for upsetting the entire program being funded. Private suits thus allow the courts to work with the Department in promoting the orderly enforcement of the Act.

By contrast to private suits, public enforcement typically attacks the more systemic cases of racial discrimination, where broad restructuring of programs and institutions is often necessary for achieving Title VI compliance. The Department is empowered [228 U.S.App.D.C. 404] to employ a variety of devices to end racial discrimination, including, where appropriate, termination of federal funds. Section 602 fund terminations are serious actions, however, and Congress consequently vested the Department with substantial discretion in making these decisions--subject only to limited APA review. Id. at 706-707 & n. 41, 712-714 n. 49, 99 S. Ct. at 1962-1963 & n. 41, 1965-1966 n. 49.97 In recognition of the seriousness of such action, courts that imply private suits against fund recipients generally will not enjoin payment of federal funds.98 Remedies of this sort are better left, as a first matter, to the expert decisionmaking of the Department, subject to limited review by the courts. But limited review does not mean, as this court asserts, no review; Congress enacted Title VI to channel, not unleash, agency discretion.99

There are, of course, federal funding statutes in which Congress knowingly commits certain decisions to unreviewable agency discretion. In these statutes Congress has limited the types of suits that private litigants can bring against federal enforcement agencies. For example, in the State and Local Fiscal Assistance Act, 31 U.S.C. §§ 1221-1265 (1976 & Supp. V 1981), Congress expressly provided for direct private actions against fund recipients and authorized federal courts to grant private litigants all appropriate relief, including "the suspension, termination, or repayment of funds." Id. § 1244. This court has interpreted these provisions to preclude certain situation-specific suits against the federal enforcement agency, the Office of Revenue Sharing. See Council Of & For the Blind of Delaware Valley v. Regan, 709 F.2d 1521 (D.C.Cir.1983) (en banc ). The court decided that Congress meant to commit certain situation-specific decisions to agency discretion.100

The crucial issue for this court, in interpreting the State and Local Fiscal Assistance Act, was one of congressional design and intent. This is also the key issue in interpreting Title VI. But, as this court explicitly noted, Title VI and the State and Local Fiscal Assistance Act have categorically different enforcement schemes. See id., 709 F.2d at 1531 n. 69 (majority opinion) (distinguishing Adams v. Richardson ). Title VI is not a "no strings" grant scheme; the Department has a much larger staff than does the Office of Revenue Sharing; Title VI does not expressly provide for suits against the fund recipients; and Title VI does not explicitly empower a federal court to order, on its own initiative, suspension or termination of federal funds. Id. As this court stated, Congress knows how to create suits directly against a federal agency [228 U.S.App.D.C. 405] which has failed to carry out its statutory duties, see id., and Title VI expressly contemplates situation-specific suits against the Department, see 42 U.S.C. § 2000d-2. Congress clearly intended that aggrieved persons have recourse--through the APA--against any allegedly arbitrary and capricious Department action.101 Yet today's decision ignores the distinctions this court has previously drawn between Title VI and the State and Local Fiscal Assistance Act; it treats the two statutes as if they both expressly commit situation-specific decisions to Department discretion and require aggrieved persons to sue directly the fund recipients.

In ignoring Title VI's more important attributes, the court commits fund termination decisions almost completely to agency discretion and leaves aggrieved persons without a direct remedy against arbitrary and capricious Department action. To obtain judicial review the court instructs aggrieved persons to initiate a judicially implied action against the fund recipient, and not an APA action against the Department. It thereby substitutes its own vision of the ideal enforcement scheme for the one Congress expressly created in Sections 602 and 603. In so doing the court reverses the normal relations between legislature and court, wherein the legislature writes, and the court interprets, the law.

Because this alternative vision of the Title VI enforcement scheme does not flow from the statute itself, the court offers a series of policy arguments to justify its innovative construction of the Act. Not surprisingly, the court miscomprehends the interpretive constructs it offers. These constructs weigh in favor of, rather than against, recognizing the District Court's authority to provide limited review of Department compliance decisions with regard to particular states.

1. Decentralizing judicial administration of Title VI.

To begin with, the court boasts that its vision of the Title VI enforcement scheme will decentralize judicial administration of the Act. Maj. op. at 167. School systems who wish to challenge specific Department action and persons aggrieved by allegedly discriminatory education programs will be able to sue only in the federal courts of the respective states. Id. at 167. By contrast, the court hyperbolizes, accepting appellants' proposed interpretation of Title VI would "vest in the federal courts of the District of Columbia plenary power to approve or disapprove the Department's Title VI decisions." Id. I do not find centralizing the judicial administration of Title VI as catastrophic as does the court,102 but that [228 U.S.App.D.C. 406] is really beside the point. The more important point is that Congress, not this court, is the body responsible for determining where Title VI claims will be litigated, and Congress has already done so--in our venue laws.

Our venue laws determine where lawsuits may be brought and ensure that proceedings are held in a convenient forum.103 Historically, the venue laws have given plaintiffs, within certain prescribed limits, the choice among convenient forums, even if the forum ultimately chosen is markedly less preferable than some other forum.104 This plaintiff orientation honors the time-accepted notion that plaintiffs should be masters of their own lawsuits105 and thus compensates them, at least in part, for their having to initiate these suits.106

Federal venue provisions follow these traditional principles, thereby reflecting the now conventional understanding that procedural rules ought to treat the government like any other litigant.107 Federal venue laws provide that plaintiffs, at their option, can sue federal officers, employees, or agencies in any of three places: where the plaintiff resides, where the defendant resides, or where the cause of action arose.108 Government agencies, like the Department, reside where they perform their official duties, usually the District of Columbia.109 As a practical matter, then, the venue laws allow aggrieved persons, like appellants, to sue in [228 U.S.App.D.C. 407] the District Court for the District of Columbia if they so choose.110 Therefore, if the District Court ends up reviewing many of the Department's enforcement actions around the country, it is only because aggrieved persons have properly exercised their statutory venue rights to sue in that court.111 This choice is one that Congress has given them, and the court exaggerates the gravity of their exercising this option.112

Of course, I do not mean to imply that plaintiffs' control of the lawsuit is absolute. Any party can move for, or the District Court can sua sponte suggest, a transfer of an action to a clearly preferable forum.113 Indeed, in dismissing the request for relief this court relies on many of the conceptual reasons that would justify transferring a case. See maj. op. at 164 & nn. 33, 34; see also note 102 supra. But neither the government nor the plaintiffs made a motion for transfer, and the District Court did not suggest one. The reality is that plaintiffs' motion for relief was not transferred: It was denied. The transfer provisions of the Judicial Code do not support such a denial; they were enacted precisely so that federal courts would not have to dismiss actions brought in proper, but inconvenient, forums.114 15 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3841, at 200-201 (1976). This court's resort to the considerations that underlie the appropriateness of transfer as support for dismissing this action turns those transfer provisions on their head.115 It follows, [228 U.S.App.D.C. 408] therefore, that the court's attempt to decentralize the judicial administration of Title VI amounts to a rewriting of our venue and transfer laws.

2. Procedural balance among courts and parties.

Next, the court asserts that its vision of the Title VI enforcement scheme appropriately reflects "the fundamental balance our rules of procedure strike * * * among the powers of coordinate federal tribunals and the rights of parties who are or ought to be before those tribunals." Maj. op. at 170. Appellants chose not to intervene in North Carolina's suit against the Department, and the authority they request the District Court to exercise now would require relitigation of many of the issues tried and rights decided in that litigation. By contrast, these "severe practical consequences" cannot arise in the court's scheme, where only one litigation of the issues is possible. Id. at 168-170 & nn. 38, 39. Again, the court argues by hyperbole and miscomprehends the interrelationship of the procedural constructs it relies upon.

a. Mandatory intervention. The starting point of the court's analysis is that parties with interests in related litigation must intervene to protect their rights. Id. at 169 n. 38, 169 n. 39. The court thus uses mandatory intervention (or collateral estoppel) principles as its primary interpretive construct: Title VI should correspondingly be interpreted to preclude parties who deliberately bypass an opportunity at intervention from pursuing their rights in separate litigation against the Department. Id. at 171 n. 43.

But the basic procedural rule of preclusion dictates that only parties to prior actions are bound; nonparties are not bound. 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4449, at 411 (1981). The basic rule of preclusion was first announced by Mr. Justice Brandeis in Chase Nat'l Bank v. City of Norwalk, 291 U.S. 431, 54 S. Ct. 475, 78 L. Ed. 894 (1934), where he stated:

The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. * * * Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.

Id. at 441, 54 S.Ct. at 479. For the last half century courts have faithfully followed this rule,116 in recognition of the privilege that the law accords plaintiffs in their choice of forum,117 the availability of mandatory joinder,118 and the due process rights of the parties.119

[228 U.S.App.D.C. 409] Contrary to the court's starting proposition, our procedural rules do not require persons like the Adams plaintiffs to intervene in related litigation to protect their rights. The rules of intervention simply have not been drawn in compulsory terms.120 Intervention is a device that permits, but does not require, nonparties to become parties to litigation that affects them. A few isolated decisions hold open the possibility that, in exceptional circumstances, a nonparty may be precluded for failure to exercise an intervention as of right.121 But the overwhelming number of courts have decided to the contrary,122 especially where consent judgments are involved.123 And I know of no court that has precluded a party from relitigating a matter, as the court suggests today, see maj. op. at 168-169, because that party passed up an opportunity for permissive intervention.124

[228 U.S.App.D.C. 410] In point of fact, preclusion of nonparties for failure to intervene remains much more a creature of commentary than of cases. Some commentators have suggested that courts develop a new procedure to foreclose nonparties who have deliberately bypassed an opportunity to intervene. See, e.g., Note, Preclusion of Absent Disputants to Compel Intervention, 79 COLUM.L.REV. 1551 (1979); Comment, Nonparties and Preclusion by Judgment: The Privity Rule Reconsidered, 56 CAL.L.REV. 1098, 1122-1132 (1968). But the more experienced and thoughtful commentators note that the interests "sought to be served are better protected by mandatory joinder procedures." 18 C. WRIGHT, A. MILLER & E. COOPER, supra, § 4453, at 453; accord, McCord, A Single Package for Multiparty Disputes, 28 STAN.L.REV. 707, 723-724 (1976). Thus Professors Wright, Miller, and Cooper concluded:

It is conceivable that some day this basic postulate may be eroded by courts that believe that one full and fair litigation of an issue is sufficient without regard to the identity of the parties. It is much better, however, to resist any such erosion. Our deep-rooted historic tradition that everyone should have his own day in court draws from clear experience with the general fallibility of litigation and with the specific distortions of judgment that arise from the very identity of the parties. * * *

18 C. WRIGHT, A. MILLER & E. COOPER, supra, § 4449, at 416-417 (footnote omitted).

The designers of Rule 19 of the Federal Rules of Civil Procedure dealt with this very problem (of relitigating issues previously decided) when they created the concept of mandatory joinder.125 They put the burden on existing parties and the court to bring in those whose presence would be necessary and desirable to a just adjudication; they also required these parties and the court to work out a fair solution when joinder is not jurisdictionally possible.126 This court's notion that one who bypasses an opportunity at intervention should be precluded abrogates Rule 19 and its purpose completely. It is the parties'--not the nonparties'--responsibility to make certain that the court has before it all those needed to enable it to serve the ends of justice.127

[228 U.S.App.D.C. 411] The Adams plaintiffs appeared only as amicus curiae in the North Carolina litigation.128 They purposefully chose not to intervene, and neither the State of North Carolina, the government, nor the court attempted to join them.129 If, as the government and this court now assert, the proposed settlement so affected appellants' rights that they should be barred from litigating in the District Court here, then the proposed settlement certainly could have been said, in the words of Rule 19, "as a practical matter [to] impede [their] ability to protect that interest or * * * [to] leave [the Department] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [appellants'] claimed interest."130 Thus, under the scheme Rule 19 creates, North Carolina cannot validly object to relitigation of the proposed settlement's merits "for clearly the plaintiff [in the earlier suit], who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtain[ed] against them."131 Nor can the Department legitimately bemoan the threat of inconsistent obligations since it never attempted to foreclose that possibility by seeking to join appellants in the North Carolina litigation.132 Rule 19 makes the "severe practical consequences" that concern this court North Carolina's and the government's responsibility, not appellants'.133

[228 U.S.App.D.C. 412] In sum, joinder principles, not mandatory intervention principles, strike the primary procedural balance among the powers of coordinate courts and the rights of parties who are or ought to be before those tribunals. These joinder principles would not condone preclusion of parties who do not intervene in related litigation; hence, they certainly do not justify the court's innovative construction of the Title VI enforcement scheme.

b. Indispensable parties. As a corollary to its mandatory intervention construct, the court asserts that coordinate courts may not grant relief that would undermine the rights that absent parties have in the judgment of another court. Maj. op. at 170-171. The court thus uses indispensable party principles as a second interpretive construct: Title VI should be interpreted both to protect the rights North Carolina gained in its consent judgment and to prohibit collateral attack on those rights in a forum from which North Carolina is absent. Id. Again, I think the court misapplies indispensable party principles in reaching these conclusions.

As to the undermining of North Carolina's interest in the consent judgment, I have already demonstrated that Rule 19 places the burden on the parties, not the non-parties, to protect rights so acquired.134 Even assuming that the North Carolina court had jurisdiction to entertain the proposed consent decree, its judgment is binding, in a procedural sense, only on those persons officially named as parties to the action. Rule 19 creates a mechanism by which parties like North Carolina can protect their interests, but to receive its protections "the parties must act for themselves." 7 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1609, at 92 (1972).135 Since North Carolina did not invoke the Rule 19 procedure for avoiding successive lawsuits, it cannot validly object to appellants' subsequent challenge to its Title VI settlement agreement.136

[228 U.S.App.D.C. 413] As to requiring "the state [to] be before a federal court in the District of Columbia--which it is not," Maj. op. at 171, I agree that North Carolina's interest in the consent judgment is so related to the subject matter of this action that any disposition in its absence "may * * * impair or impede [its] ability to protect that interest." Fed.R.Civ.P. 19(a). But being a party to be joined if feasible does not give North Carolina an unqualified right to prevent this litigation from going forward. Indeed, Rule 19(a) counsels the exact opposite result.137 It instructs the parties and the court to join North Carolina to the litigation. Id. But appellants' motion was dismissed before there was any consideration, by the parties or the court, of interests so related to the subject matter of the action that joinder might be necessary. This court has no business affirming the District Court's dismissal because it independently believes that North Carolina would object to, and successfully defeat, an attempt to join it as a party. Rather, this court should remand to the District Court with instructions that it make the attempt at joinder.

In any event, the absence of a party to be joined if feasible does not automatically require a court to dismiss the action before it. Rather, Rule 19(b) requires the court to "determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." FED.R.CIV.P. 19(b); see Cloverleaf Standardbred Owners Ass'n, Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1276-1277 (D.C.Cir.1983). Rule 19(b) instructs the court to consider, inter alia, the following factors in making this equitable determination:

[F]irst, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Rule 19 does not indicate what weight is to be given to each factor; rather, the District Court must make this assessment on the facts of each case and in light of the governing "equity and good conscience" test. 7 C. WRIGHT & A. MILLER, supra, §§ 1604, 1608, at 45-46, 66. "A district judge, 'closer to the arena,' is often better situated than is an appellate panel 'to survey the practicalities involved in the litigation,' " Cloverleaf Standardbred Owners Ass'n Inc. v. Nat'l Bank of Washington, supra, 699 F.2d at 1277, and the operation of Rule 19 depends, to a substantial degree, on the careful exercise of the District Court's discretion. Id.

Were the District Court to weigh the Rule 19(b) factors, it might well conclude that the action could proceed among the parties before it. Even if we assume that any adverse judgment would prejudice North Carolina,138 the other three factors, which are just as important, might lead the District Court to determine that the action [228 U.S.App.D.C. 414] could proceed. For one thing, the court can take measures that will lessen or avoid the prejudice to North Carolina.139 For example, it can encourage North Carolina to appear on a voluntary basis to protect its rights.140 An indispensable party's refusal to join, when requested, is "pertinent to the issue of maintaining the action * * *." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV.L.REV. 356, 366 (1967). See also 7 C. WRIGHT & A. MILLER, supra, § 1608, at 74-76. For another thing, "a judgment rendered in [North Carolina's] absence will be adequate * * *."141 An order requiring the Secretary to resume the administrative proceeding will once again put the Department back on the track toward vindication of plaintiffs-appellants' civil rights. Finally, we can only speculate as to whether appellants "will have an adequate remedy if the action is dismissed for nonjoinder" of the absentee. Fed.R.Civ.P. 19(b). Appellants can seek post-judgment intervention in the North Carolina court, but we cannot be sure the motion would be granted.142 In sum, the District Court, in implementing the "equity and good conscience" test, might very well find that an action could go forward, even in North Carolina's absence. But the more important point, for my purposes now, is that either the District Court or this court must actually balance those factors to determine whether the action should proceed in North Carolina's absence.143

In short, indispensable party principles do not make inviolable the rights of absentee parties. Rather, they strike a balance between the rights of those who are or ought to be before the court and they provide a mechanism by which the parties can assure themselves of an adjudication on the merits. Indispensable party principles do not a priori preclude litigation in the District Court because North Carolina is absent; hence, they do not justify the court's restructuring of the Title VI enforcement scheme.

3. Recognizing North Carolina court's judgment.

Implicit in the court's post hoc concern for judicial decentralization and for procedural balance is an over-arching canon of interpretation: A statute should not be read to place coordinate federal courts in the position of disregarding each other's judgments. See Maj. op. at 170-171. Since the North Carolina court has already exercised jurisdiction over the proposed set [228 U.S.App.D.C. 415] tlement agreement, the court reads Title VI (and the prior orders issued in this litigation) to preclude review in the District Court for the District of Columbia. Id. I have already demonstrated that transfer and joinder devices adequately resolve the problem of coordinate courts exercising conflicting jurisdiction, and hence I see no reason for elevating this concern into a canon for interpreting statutes. But I find such interpretive posturing especially galling in this case because it vests statutory authority to review Department settlement agreements in the wrong District Court.

Section 603 authorizes judicial review of Department action in two distinct fashions. First, it permits aggrieved persons to challenge Department action to the extent that the APA allows. 42 U.S.C. § 2000d-2. Thus persons allegedly wronged by the distribution of federal funds to state systems can challenge the Department's acceptance of a desegregation plan as "final agency action" which "aggrieves" or "adversely affects" them within the meaning of the APA. 5 U.S.C. § 702 (1976); see generally 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 24.1-24.12, 25.6-25-13 (2d ed. 1983). Second, Section 603 independently authorizes any aggrieved person to seek judicial review after the Secretary has made a "final" finding of failure to comply with Title VI. Thus, if upon review of the administrative record, the Secretary makes a "final" decision that the recipient has not complied and that funds should therefore be terminated, the recipient becomes "aggrieved" and may seek judicial review. 42 U.S.C. § 2000d-2. Likewise, if the Secretary makes a "final" decision of noncompliance and refers the case to the Justice Department for enforcement, the United States becomes "aggrieved" within the meaning of Section 602, id. § 2000d-1, and can seek judicial review. Id. § 2000d-2. But before the Secretary makes a "final" decision of noncompliance, potentially adequate administrative remedies remain, and neither the United States nor the fund recipient are "aggrieved" or "adversely affected" within the meaning of Title VI or the APA. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); 4 K. DAVIS, supra, §§ 24.2, 25.15. Hence, if the Secretary accepts a desegregation plan prior to making a "final" finding of noncompliance, neither he nor the fund recipient can seek review of that plan in a federal court: They do not have "adverse" interests and there is no statutorily ripe claim to present to a court. See Taylor v. Cohen, 405 F.2d 277, 280 (4th Cir.1968) (en banc ); School District of Saginaw v. U.S. Dep't of HEW, 431 F. Supp. 147, 153-155 (E.D.Mich.1977); Board of Education of Cincinnati v. Dep't of HEW, 396 F. Supp. 203, 248 (S.D.Ohio 1975).

In this case the Department aborted the administrative hearing, accepted a proposed desegregation plan, and continued to distribute federal funds. The Secretary has never made a "final" finding of noncompliance. Under the terms of the statute, neither the State of North Carolina nor the Department should have been able to seek review of that plan in the North Carolina court. Nor could that court have reviewed the plan as part of the lawsuit that the State of North Carolina filed in 1979; all justiciable issues in that controversy had already been decided,144 and the only possible controversy remaining--a termination of funds at the end of the administrative proceeding--was entirely hypothetical and speculative in 1981. See Board of Education of Cincinnati v. Dep't of HEW, supra, 396 F.Supp. at 247-249. Claims based on wholly speculative events are not justiciable,145 [228 U.S.App.D.C. 416] ] especially when administrative proceedings are involved.146 In short, the North Carolina court had no lawsuit over which to retain jurisdiction and no statutory basis for entertaining the proposed decree.

Ironically, prior to submitting the North Carolina plan to the North Carolina court, the Department apparently had never before sought a court's imprimatur on a voluntary desegregation plan, though it had accepted hundreds of such plans in settlement of Title VI actions.147 It had recognized that Title VI did not authorize such review and that "enforcement of [the statute] would be irreparably undermined if a recipient of funds could routinely bypass statutorily mandated administrative compliance proceedings by the expedient of filing a lawsuit and then obtaining a substantive consent decree * * *."148 The North Carolina court's exercise of jurisdiction in this case thus violates the statutory enforcement scheme. While we have no authority to set its void judgment aside, we must ignore it if we are to implement effectively the law as Congress has written it.149 Title VI did not place this court in the unenviable position of disregarding the North Carolina court's judgment; rather, it was the Department and the State of North Carolina that did so. At the time the Secretary accepted the settlement, jurisdiction was statutorily proper only in the forum of appellants'--the "aggrieved" and "adversely affected" persons'--choice.150

[228 U.S.App.D.C. 417] C. Mootness on Appeal

Rather than erect an alternative vision of the enforcement scheme and justify it through these misconceived interpretive constructs, the court would do better to recognize the District Court's statutory jurisdiction and to face, head on, the more difficult issue that this appeal presents: whether the action is moot on appeal. Appellants sought to enjoin the Secretary from accepting the North Carolina plan as constituting compliance with Title VI, but the Secretary has since accepted the plan and successfully submitted it to the North Carolina court in the form of a consent decree. Thus the action sought to be prohibited has been consummated and the appeal is arguably moot. See Jones v. Montague, 194 U.S. 147, 24 S. Ct. 611, 48 L. Ed. 913 (1904). Indeed, many of the "severe practical consequences" that bother this court--e.g., its repeated references to lack of effectual relief, pro forma gestures, and lack of a case or controversy--indicate that mootness concerns underlie much of today's decision. See maj. op. at 170-171.

But this case is not moot. Mootness prevents a court from deciding a controversy only if no relief whatever can be granted. The Supreme Court has enunciated the precise principle as follows:

[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. * * *

Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 133, 40 L. Ed. 293 (1895) (emphasis added).

Thus the proper issue on appeal is whether appellants can be granted "any effectual relief whatever." Here, to be sure, the only relief requested was an injunction. Nonetheless, it "has long been established law that, in equity, a plaintiff is entitled to any relief appropriate to the facts alleged in the bill and supported by the evidence, even where he has not prayed for such relief." Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir.1961). E.g., Bemis Brothers Bag Co. v. United States, 289 U.S. 28, 34, 53 S. Ct. 454, 456, 77 L. Ed. 1011 (1933); Lockhart v. Leeds, 195 U.S. 427, 437, 25 S. Ct. 76, 79, 49 L. Ed. 263 (1904). See Note, Mootness on Appeal in the Supreme Court, 83 HARV.L.REV. 1672, 1676-1677 & n. 26 (1970). Moreover, the Federal Rules specifically provide that a party is entitled to all appropriate relief, whether requested or not, if the equities favor it, see Fed.R.Civ.P. 54(c).

In this case the action that allegedly moots the appeal came at the Secretary's behest: He accepted the proposed settlement and submitted it to the North Carolina court. To dismiss for mootness would set the unacceptable precedent that defendants who are subject to possible injunctive relief (and who prevail in the District Court) can moot subsequent appeals by taking the action sought to be prohibited while the appeal is pending. Nor can the North Carolina court's acceptance of the proposed decree moot this appeal: neither collateral estoppel nor comity principles bind nonparties or affect the relief available to them. See Maj. op. at 169 n. 39; Consumers Union of U.S. v. CPSC, 590 F.2d 1209, 1217-1219 (D.C.Cir.1978), rev'd on other grounds, 445 U.S. 375, 100 S. Ct. 1194, 63 L. Ed. 2d 467 (1980). In sum, appellants should not be prejudiced by the Secretary's actions and the equities favor shaping unrequested relief for their benefit.

Therefore, I would remand this case to the District Court for a decision on the [228 U.S.App.D.C. 418] merits. If the District Court were to find that the Department acted arbitrarily and capriciously in ignoring its own desegregation criteria, I would have it order the Department to resume the public enforcement process condition precedent to a termination of funds. Any conflicts between that order and the consent judgment of the North Carolina court can be mitigated through the use of stays pending final determination of the legal issues.151 This is effectual relief, and I believe the equities weigh in favor of granting it.

IV. THE DEPARTMENT HAS NOT FULFILLED ITS LEGAL OBLIGATION

The District Court below improperly dismissed this action and thus did not reach the merits of the Department's settlement with the State of North Carolina. Were I writing for a majority, I would simply stop at this point and remand to the District Court for a determination of those merits. However, the United States Commission on Civil Rights has already reviewed this agreement and concluded that it miserably fails to meet the Department's own requirements for a satisfactory desegregation plan. See note 9 supra. Therefore, to prevent the forest of civil rights violations from being obscured by the procedural trees of this litigation, I will now demonstrate how manifest the Department's abdication of its legal responsibilities has been. First, in approving North Carolina's plan the Department abandoned its own desegregation criteria, implementation of which was judicially mandated. Second, the Department approved a plan with the same basic infirmities as the 1974 Plan, which had already been judicially determined to be inadequate under the law.

A. Abandonment of the Desegregation Criteria

In promulgating desegregation criteria pursuant to the District Court's order, the Department found specific guidance in the prior opinions in the Adams litigation. See Adams v. Califano, supra, 430 F.Supp. at 120. Accordingly, the Amended Criteria provided numerous specific steps to be taken under three broad rubrics: I. Disestablishment of the Structure of the Dual System;152 II. Desegregation of Student Enrollment;153 and III. Desegregation of Faculty, Administrative Staffs, Non-Academic Personnel, and Governing Boards.154

A comparison of the North Carolina plan155 with the Amended Criteria reveals innumerable, fundamental discrepancies. Several examples suffice to show a common pattern. For instance, Part I-C of the Criteria requires the state to "take specific steps to eliminate educationally unnecessary program duplication among traditionally black and traditionally white institutions in the same service area."156 This requirement reflected the District Court's concern that "specific commitments" were necessary in the area of "duplication of program offerings among institutions."157 This was a crucial area for reform because, [228 U.S.App.D.C. 419] as the Department had explained to North Carolina's counsel late in 1979, "program duplication is the most obvious vestige of past state-sanctioned segregation, and modifying the structure of non-core duplicated programs is the least intrusive, least disruptive method which would promise to eliminate the vestiges of discrimination in the UNC system."158 Nonetheless, the new state plan approved by the Department is totally silent on the subject of program duplication.159

Part II-C of the Criteria requires each state plan to adopt the goal that "the proportion of black state residents who graduate from undergraduate institutions in the state system and enter graduate study or professional schools in the state system shall be at least equal to the proportion of white state residents who graduate from undergraduate institutions in the state system and enter such schools."160 This criterion responded to a specific concern expressed by this court en banc concerning the "lack of state-wide planning to provide more and better trained minority group * * * professionals."161 Yet the new state plan approved by the Department does not even mention, let alone adopt, this goal.

Similarly, Part II-E of the Criteria mandated a commitment to take all reasonable steps to reduce the disparity between the proportion of black and white students graduating from public institutions of higher education.162 This requirement was directly in line with the District Court's finding that specific commitments were necessary so that students could be retained.163 Once again, the new state plan ignores the requirement. As for admission of students, also mentioned by the District Court,164 states were required to adopt the goal that the proportion of black high school graduates who enter public higher education equal the proportion of white high school graduates who do so.165 The new plan does little more than document the existing disparity: 20.5 percent of all black high school graduates entering university institutions as opposed to 25.5 percent of white high school graduates.166

Part III of the Criteria identified a number of specific measures to be taken to assure desegregation of faculty and nonacademic employees.167 The new state plan, however, fails to respond to any of the requirements identified in the Criteria; instead, the plan merely incorporates each constituent institution's individual affirmative action plan.168 This approach does not comport with this court's guidance that "[t]he problem of integrating higher education must be dealt with on a state-wide rather than a school-by-school basis."169 Moreover, the inadequacies of the existing affirmative action plans had already been explained in some detail by the Department itself.170 For instance, under the existing affirmative action programs the faculties of [228 U.S.App.D.C. 420] the traditionally white institutions in the UNC system will be no more than three percent black by 1985.171 Yet the Department has already indicated that "[u]ntil there are substantial numbers of black faculty and administrators at the [traditionally white institutions], those institutions will continue to have difficulty attracting and keeping black students, and will retain their historic racial identity."172

Overall, of the 25 specific requirements identified in the Amended Criteria, the North Carolina plan approved by the Department incorporates none.173 At most, the plan responds weakly to some of the general concerns underlying the Criteria, but a comparison of the plan with the Criteria demonstrates a failure to comply with any specific mandates. Actually, the record shows that HEW did endeavor to apply the criteria during the negotiations that took place shortly after the Second Supplemental Order and during 1979.174 However, as the above examples indicate, the Department suddenly reversed its prior disapproval of North Carolina's proposals and abandoned the Criteria in 1981 when it approved the North Carolina plan.

The government does not appear to deny the existence of significant divergences between the Criteria and the approved plan. Rather, the government's argument is one of avowal and justification. To begin with, the government argues that the Criteria are not "immutable standards" but rather are guidelines that can be flexibly adjusted as part of a settlement process.175 But this is not a case where the guidelines were merely adjusted. Rather, the Department virtually discarded the Criteria in the proposed agreement. The District Court had ordered promulgation of "certain specific requirements which the states must respond to"176 in formulating their desegregation plans. The Criteria described the requirements for states to meet their "statutory obligation to devise and implement plans that are effective in achieving the desegregation of the system."177 Furthermore, the Criteria were developed with the unique needs and circumstances of each of the relevant states in mind.178 Indeed, the Department had stated in 1977 that "[e]ach plan shall commit the state to substantial progress toward each of the goals in the first two years of the plan."179 Under these circumstances, the Department can hardly waive application of the Criteria. Indeed, if the Department is now allowed to ignore the Criteria, then we have reverted to a situation where [228 U.S.App.D.C. 421] the Department is in effect acting without any public guidelines, a situation specifically prohibited by prior court orders.180

The government also argues against application of the Criteria because "there has been substantial progress in North Carolina since this litigation was commenced back in 1970."181 This argument makes little sense. If progress had truly been achieved, it should be easier to secure compliance with the Criteria and the requirements should not be loosened. Moreover, available evidence hardly supports assertions of substantial progress. Consider merely one prominent indicator of progress. In 1972 enrollments in the five traditionally black institutions in the University of North Carolina system were 95 percent black; in 1980 these student bodies were still 98 percent black.182 The eleven traditionally white institutions with student bodies that were 97 percent white in 1972 were still 93 percent white in 1980.183 In any event, the government's reference to progress made since 1970 has little meaning since the Criteria were formulated in 1977 and presumably accounted for progress made by that date.

B. Failure to Correct Deficiencies of the Prior Plan

In the proposed agreement the Department has also approved a plan that contains the same basic infirmities as a plan that the District Court determined to be inadequate over five years ago. Indeed, the new plan is in many ways even weaker than North Carolina's 1974 Plan. As noted earlier,184 HEW had initially accepted the 1974 Plan, but in 1977 the District Court ordered the Department to revoke its approval of that plan.

A comparison of North Carolina's new plan185 with the 1974 Plan186 demonstrates little in the way of substantive improvement. In particular, the plans can be analyzed in the four key areas which the District Court specifically identified in 1977 when it ordered the Department to revoke its approval:187

--desegregation of student bodies;

--desegregation of faculties;

--desegregation of program duplication;

--enhancement of black institutions.

1. Desegregation of student bodies.

The new plan proposes a large number of informational and recruiting activities to increase the presence of blacks at traditionally white institutions and of whites at traditionally black institutions.188 The 1974 Plan also proposed a large number of such activities,189 some of which are precisely the same as those included in the proposed agreement.190 The goal of such efforts is to increase the presence of whites and blacks at traditionally black and white institutions, respectively. Along these lines, both plans set specific numerical goals for student enrollments.

Amazingly, however, desegregation of student bodies under the new plan would actually proceed at a slower rate than that projected in the 1974 Plan. Indeed, progress under the new plan would occur at [228 U.S.App.D.C. 422] a slower rate than that experienced over the past eight years, a time during which no approved plan has existed. Specifically, for 1980 to 1986 the proposed agreement establishes the following goals:191

By contrast, the 1974 Plan had established the following goals for increasing the presence of underrepresented groups during the final 1976-1977 period:192

Thus during the most comparable time frames the 1974 Plan set much more ambitious goals for desegregation of student bodies than does the proposed new plan. Also, progress under the new plan will actually come at a slower pace than that experienced during the past eight years, when no approved plan existed. This conclusion is evident from the following table.193

2. Desegregation of faculties.

The desegregation of faculties was a second area in which the District Court found the 1974 Plan lacking. The proposed agreement merely incorporates "[e]ach constituent institution's affirmative action plan"194 submitted under Executive Order No. 11246. No other action is contemplated. The 1974 Plan also adopted each constituent institution's affirmative action plan.195 But in addition the earlier plan proposed a series of supplemental efforts designed to support the separate institutional commitments.196 While the proposals were otherwise identical, the 1974 Plan was to this extent even less objectionable than the new plan.

3. Reduction of program duplication.

The 1974 Plan did not propose any specific steps toward elimination of educationally unnecessary program duplication among black and white institutions in the same service area. However, the State then at least expressed a willingness to identify and eliminate "instances of unnecessary and costly duplication of programs within the University, taking into account the educational needs of the whole State."197 The commitment was a qualified and cautious one. Nonetheless, even this modest commitment in the 1974 Plan is missing from the new agreement, which is totally silent on the entire problem of duplicative programs.198

[228 U.S.App.D.C. 423] 4. Enhancement of black institutions.

With respect to efforts to strengthen the five traditionally black institutions in the UNC system, the new plan does appear to offer greater promise than the 1974 Plan. To this extent the new plan is not so infirm as the 1974 proposal. However, the nine-part program outlined in the proposed agreement has deceptively little substance.199 Moreover, the Department had criticized the same sorts of commitments in 1979 because they failed to provide the traditionally black institutions "with facilities, programs, degree offerings and faculty comparable to traditionally white institutions with similar missions."200 Indeed, the new commitments appear to represent substantially less than those previously offered by the University but deemed inadequate by the Department.201 Nowhere has the Department explained its reassessment of the University's proposal in this area.

To the extent that the new plan may provide limited progress toward enhancing the traditionally black institutions, serious problems remain. For the mere pursuit of improved institutions with predominantly black enrollments represents nothing more than a policy of "separate but equal" with an emphasis on equality. Such a plan, particularly when compared to the 1974 Plan, cannot survive judicial review--at least not since 1954. See Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

In sum, it is exceedingly apparent to me that the Department has abandoned the desegregation criteria, without rational explanation, in entering into the North Carolina settlement. The Department has thus acted arbitrarily, capriciously, and without the authority of law. See 5 U.S.C. § 706(2)(A) (1976). The record in this case makes such a conclusion unavoidable.

Title VI was enacted on the proposition that it was contrary to the "moral sense of the Nation" to expend federal funds on programs discriminating on the basis of race.202 Congress was aware that most agencies dispensing federal funds had the "authority to * * * terminate assistance for failure to comply with * * * requirements imposed by statute or by administrative action," but plainly was dissatisfied with these agencies' efforts to ensure the nondiscriminatory use of federal funds.203 Hence it enacted Title VI, which affirmatively required the agencies to end the discriminatory use of federal funds and furnished a mandatory procedure for the agencies to follow in doing so. Thus Section 601 states the federal policy on nondiscrimination, Section 602 provides the procedures the agencies must follow in implementing that [228 U.S.App.D.C. 424] policy, and Section 603 authorizes aggrieved persons to obtain judicial review of agency action that becomes final. The narrow, but critical, question before this court is whether Section 603, via the APA, authorizes judicial review of final Department action taken subsequent to the initiation of formal enforcement proceedings, or whether such action is precluded in favor of a judicially implied suit against the fund recipient. Under my understanding of separation of powers principles, this issue must be decided the way Congress has resolved it: in favor of a direct APA action against the Department. But today's decision repeals Section 603 and substitutes the court's own vision of the ideal enforcement scheme in its place.

The court rationalizes this unjustified intrusion on the legislative prerogative by resort to a set of procedurally-based constructs that are wholly foreign to our accepted scheme of procedural justice. Our procedural rules are tuned to reach a necessarily rough, but satisfactory, long-run accommodation of two competing jurisprudential policies: finality and correctness. Finality is the notion that all litigation must have an end, and thus militates forcibly against renewed exploration of previously litigated matters. Correctness is the notion that adjudication should produce accurate and fair results, and thus allows judgments to be reopened and issues reexamined. These two policies are at tension in every case. Rules concerning venue, transfer, intervention, joinder, estoppel, and indispensable parties are designed to achieve a delicate balance between policies of finality and correctness. Properly applied, they ensure that willing parties can participate in litigation that affects their interests and that courts can reach the merits of cases presented to them. The court's application of these procedural principles produces the opposite result: It precludes the District Court and the parties before it from litigating the merits. The court's procedurally-based constructs favor finality concerns to the exclusion of any concern for correctness. In my judgment, this approach works a manifest procedural injustice and the court's manipulation of these procedural principles will come back to haunt it in the future.

Moreover, the injustice resulting from this case will not simply be procedural. Substantively, today's decision will help those who oppose the civil rights laws to reduce Title VI and other federal statutes like it--most particularly, the identical Title IX provisions proscribing gender discrimination--to mere chimeras of what Congress intended them to be. By rewriting the judicial review provisions of Title VI and by recalibrating our rules of procedure, the court initiates the process by which discriminatory institutions can dilute the nondiscrimination policies expressed in Title VI and other civil rights statutes. This case demonstrates that the Department can still distribute funds to institutions allegedly operating in a racially discriminatory manner. Allowing the Department to abandon its own desegregation criteria in this case undercuts the credibility of Title VI enforcement efforts in all the other states. Similarly, committing Department compliance decisions to the unreviewable discretion of the agency removes an essential check on bureaucratic arbitrariness. Finally, allowing the Department and North Carolina to evade the statute's instructions on choice of forum encourages the other states to do the same. The court's decision opens the floodgates through which the Department and recalcitrant states can water down Title VI's (and other civil rights acts') moral and legal imperative. This dilution makes a mockery of Congress' and our nation's moral sense that racial (and sexual) equality must begin in the schools where our children are educated. Thus today's decision works a yet untold substantive injustice.

Accordingly, I dissent.

We concur with Parts I-III and V of Judge Wright's dissenting opinion, although we would leave the initial determination of the conformity of the North Carolina agreement [228 U.S.App.D.C. 425] to the Amended Criteria and Title VI to the district court.