IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                         _______________

                           No. 95-30337
                         _______________


               LOUISIANA LANDMARKS SOCIETY, INC.,

                                                Plaintiff-Appellee,


                              VERSUS

     CITY OF NEW ORLEANS, RIVERGATE DEVELOPMENT CORPORATION,
                 and HARRAH’S JAZZ COMPANY, INC.,

                                                Defendants-Appellants.


                    _________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                    _________________________

                           June 7, 1996

Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:


     The City of New Orleans, the Rivergate Development Corpora-

tion, and Harrah’s Jazz Company (collectively, “the defendants”)

appeal an order granting Louisiana Landmarks Society (“Landmarks”)

a permanent injunction against them. Concluding that Landmarks had

no private cause of action to seek the injunction, we reverse,

vacate the injunction, and dismiss for failure to state a cause of

action.
                                       I.

      In October 1971, the city applied for a federal open-space

land grant under title IV of the Housing and Urban Development Act

of 1970, Pub. L. 91-609, 84 Stat. 1770 (1970) (“HUD Act” or “Act”),

reprinted in 1970 U.S.C.C.A.N. 2069, 2083-87.1             These grants were

provided for the creation and maintenance of open-space areas

inside urban centers.        See HUD Act § 701.         One of the uses for

which grants were available was for “historic and architectural

preservation.”      See 

      The grant application proposed that the city turn a parking

lot into the Joan of Arc Plaza, a public area that would showcase

a statue of Joan of Arc and a pair of cannons.                  The statue and

cannons were gifts from France.          The city ultimately obtained the

grant and built the plaza.

      Congress terminated the open-space land program in 1975, but

it did not explicitly repeal § 705.2               This section required the

approval of the Secretary of the InteriorSSnot HUDSSprior to the

conversion     of   grant-assisted         sites    involving    “historic    or



         Title IV of the 1970 act enacted the open-space land program at issue
here.   Section 401, the only section in title IV, amended title VII of the
Housing Act of 1961. Section 401 replaced the existing text of title VII with
nine new sections numbered from 701 to 709. See 1970 U.S.C.C.A.N. at 2083-87.
These 700-series section numbers actually refer to sections of the 1961 act, the
sections added by the 1970 amendments. While Landmarks is formally suing under
§ 401 of the 1970 act, it is more convenient for us to cite to §§ 701-709 of the
1961 actSSwhen referring to portions of the 1970 amendmentsSSthan it would be to
cite to § 401 of the 1961 act. Thus, while we cite to sections of the 1961 act,
we are formally interpreting the 1970 amendments to the 1961 act.

           This section states:     “No open-space land involving historic or
architectural purposes for which assistance has been granted under this title
shall be converted to use for any other purpose without the prior approval of the
Secretary of the Interior.” HUD Act § 705. This section, while never repealed,
has been omitted from the United States Code because of the termination of the
grant program. See 42 U.S.C.A. § 1500c-1 (West 1994).

                                       2
architectural” purposes to uses other than those proposed in the

grant application.        See 

      On December 5, 1994, bulldozers, under Harrah’s direction,

began clearing the Joan of Arc Plaza, but without harming the

statue or cannons.         Landmarks obtained a temporary restraining

order (“TRO”) enjoining the defendants from converting the plaza to

something other than its allegedly historic purposes.

      After   a    hearing,     the   district   court      issued   a   permanent

injunction,       along   the    same   lines    as   the    TRO,    against   the

defendants.       The defendants moved to amend the judgment so that it

would affect a narrow, precisely-defined area, and the court

granted this motion.            The defendants now appeal the permanent

injunction, and Landmarks cross-appeals the amendment.



                                        II.

      It is undisputed that Congress did not expressly provide for

a private right of action in passing the HUD Act.                    If any such

cause of action exists, it must be one implied by the statute.                 The

defendants argue that the Act implied no such right of action.3

      Cort v. Ash, 

, 78 (1975), established a four-factor


         Landmarks did not respond in its appellate brief to the defendants’
private-right-of-action argument, except for a single conclusionary reference in
the text of its brief and a single accompanying footnote. It contended that the
defendants had waived this argument below when they purported to waive their
standing argument.
      We cannot help but find Landmarks’s position puzzling.    Standing is a
concept distinct from the concept of private rights of action. Furthermore, to
the extent that Landmarks erroneously analyzed the implied-cause-of-action
argument as a standing argument, it should have known that standing is
jurisdictional and, therefore, non-waivable. Landmarks’s decision to deem this
issue waived has left us with only the benefit of the defendants’ briefing and
argument.

                                         3
test for determining whether a federal statute implies a private

right of action:

     (1) Is this plaintiff a member of the class for whose
     “especial” benefit the statute was passed?     In other
     words, does the statute create a federal right for this
     plaintiff?

     (2) Is there any evidence of legislative intent, either
     explicit or implicit, to create or deny a private remedy?

     (3) Is it consistent with the legislative scheme to imply
     a private remedy?

     (4) Is the cause of action one traditionally relegated to
     state law so that implying a federal right of action
     would be inappropriate?

See also Resident Council of Allen Parkway Village v. HUD, 

, 1053 (5th Cir.) (applying Cort test), cert. denied, 114 S.

Ct. 75 (1993).    Furthermore, the Court explained in Touche Ross &

Co. v. Redington, 

(1979), that the touchstone of the

Cort analysis is the second factor, Congressional intent.   See 

see also Allen 

; Abate v. Southern

Pac. Transp. Co., 

, 169 (5th Cir. 1991) (quoting

Thompson v. Thompson, 

, 179 (1988)).

     When analyzing a federal statute, we begin with the familiar

presumption “that Congress did not intend to create a private right

of action.”      Allen 

.      Generally, a

plaintiff asserting an implied right of action under a federal

statute “‘bears the relatively heavy burden of demonstrating that

Congress affirmatively contemplated private enforcement when it

passed the relevant statute.’”    

v. Miller,

, 721 (5th Cir. 1987) (en banc)).   Landmarks has failed

to carry this burden.

                                  4
                                          A.

      Under the first Cort factor, we ask whether the plaintiff

belongs to an identifiable class of persons upon whom the statute

has conferred a substantive right.                

; see

Cannon v. University of Chicago, 

, 690 (1979).                   Even if

a plaintiff can demonstrate membership in such a class, however,

the crucial inquiry remains one of Congressional intentSSi.e.,

whether Congress actually intended to create a private remedy. See

; Touche 

; 

(quoting Thompson).                  In answering the question of

Congressional       intent,        “as    with     any     case   involving        the

interpretation of a statute, our analysis must begin with the

language of the statute itself.”                 Touche 

(citations omitted).

      In this case,         Landmarks cannot demonstrate that it is a

member of a class for whose special benefit the Act was passed.                     In

the Act’s statement of findings and purpose, Congress stated that

the grant program established under the                  Act was intended

      to help curb urban sprawl and prevent the spread of urban
      blight and deterioration, to encourage more economic and
      desirable urban development, to assist in preserving
      areas and properties of historic or architectural value,
      and to help provide necessary recreational, conservation,
      and scenic areas by assisting State and local public
      bodies in taking prompt action to [inter alia] . . .
      acquire, improve, and restore areas, sites, and
      structures of historic or architectural value . . . .

HUD   Act   §    701(d).      To    the   extent     that    there   might    be    an

identifiable class of “persons” mentioned in this statute, it would

consist     of   “[s]tate   and     local      public    bodies”SSnot   historical


                                          5
preservation societies such as Landmarks.4                     This conclusion is

supported by the fact that the statute explicitly defines the terms

“State” and “local public body.”                See HUD Act § 709.

      It is both true and insufficient that historical preservation

societies are “a class that stands to gain some benefit from the

regulations and penalties promulgated under these provisions.”

. The statute, however, focuses on Landmarks

“only diffusely.”        See 

words, it does not focus on

historical preservation societies any more than it “focuses” on

citizens at large.

      Rather,     the   Act’s     provisions      are    framed    “‘as    a   general

prohibition or a command to a federal agency.’”                         

Research Ass’n, Inc. v. Coutu, 

, 772

(1981)).       The Act directs the Secretary of Housing and Urban

Development (“HUD”)SSwith some assistance from the Secretary of the

InteriorSSto execute a regulatory scheme consisting of (1) federal

financial      assistance    to     state       and    local   public     bodies    and

(2) restrictions attached to that assistance.                  This grant program,

prior to    its      termination,    sought       to    benefit   urban    areas    and

communities generally. While Landmarks, like any ordinary citizen,

may   derive    an    indirect    benefit       from    the    enforcement     of   the

regulatory scheme, that attenuated benefit5 does not rise to the


          We emphasize that we are not suggesting that the statute implies a
private right of action in favor of state and local public bodies. Rather, we
simply point out that the only “persons” identified in the text of the statute
are state and local public bodies.

       In contrast to the statute here, title IX of the Education Amendments of
                                                                    (continued...)

                                            6
level required to support implication of a private right of action.

See id.6

      Landmarks therefore has failed to establish that it falls

within an identifiable class of persons for whose special benefit

the   Act   was   passed.     Because       Touche   Ross   instructs   us   that

Congressional intent is always the critical inquiry in an implied-

right-of-action analysis, 

, we consider that

Cort factor as well.



                                        B.

      The most telling indicator of Congressional intent regarding

this grant program is Congress’s termination of it as of January 1,

1975.   See 42 U.S.C. § 5316(a) (1995) (prohibiting new grants or

loans after January 1, 1975, underSSinter aliaSStitle VII of the

Housing Act of 1961).        While Congress did not explicitly repeal

§ 705SSthe provision governing conversion of grant-assisted land to

other usesSSit did decide to pursue a different legislative agenda



(...continued)
1972SSthe statute from which the Cannon Court inferred a private right of
actionSScreated a direct benefit for an identifiable class of persons:      “No
person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial assistance.
. . .” 20 U.S.C. § 1681(a) (1990). This language has not been amended since the
decision in Cannon.

           In explaining the proposition that a stream of indirectly derived
benefits does not flow from a private cause of action, the Abate court offered
three supporting citations: Till v. Unifirst Fed. Sav. & Loan Ass’n, 

, 158 (5th Cir. Unit A 1981); United States v. Capeletti Bros., Inc., 

, 1314 (5th Cir. 1980); and Rogers v. Frito Lay, Inc., 

, 1079-80
(5th Cir.), cert. denied, 

, and cert. denied, 

(1980).

. Prior to our decision in Abate, we had characterized
these cases as “decisions in which this court denied private rights of action
under statutes that imposed duties of enforcement upon federal departments and
agencies.” Hondo Nat’l Bank v. Gill Sav. Ass’n, 

, 1100 (5th Cir.
1983) (emphasis added).

                                        7
regarding open-space land and to eliminate the grant program.

Given the Supreme Court’s general disapproval of implied private

rights of action, it would be anomalous to infer one from a defunct

federal grant program.

     Furthermore, the provisions of the statute are framed “‘as a

general prohibition or a command to a federal agency.’”           

(quoting 

).         Like the statute at

issue   in   Abate,    this   one   “creates   no   rights   in    favor   of

individuals”; rather, it “imposes duties on a federal agency and

grants the agency the power to fulfill those duties.”             

the language of the HUD Act is “duty-creating,” not

“right-creating” like the statute in Cannon.          See 

n.3

(quoting title IX of the Education Amendments of 1972 (“title IX”),

the statute from which the Cannon Court inferred a right of

action).     And, as the Cannon Court stated, “the right- or duty-

creating language of the statute has generally been the most

accurate indicator of the propriety of implication of a cause of

action.”     

n.13.

     Moreover, we must not overlook the fact that this is a federal

funding statute.      As stated in the Act itself, Congress’s purpose

in enacting this statute was to “assist” state and local public

bodies in creating and maintaining open-space land in urban areas.

See HUD Act § 701(d).     The statute created a grant program composed

of federal-state and federal-locality partnerships, each of which

properly was characterized as a contract between the federal

government and a state or local public body.          Cf. Pennhurst State


                                      8
Sch. and Hosp. v. Halderman, 

, 17 (1981) (stating that

“legislation enacted pursuant to [Congress’s] spending power is

much in the nature of a contract”).

      When dealing with a classic federal funding statute like this

one, inferring a private right of action is disfavored:                 “[A]s a

general rule, courts have been reluctant to infer a congressional

intent to create private rights under appropriations measures.”

Allen 

.             Thus, courts generally should

decline to entertain claims by private persons that a state or

local public body is not complying with a federal-state contract.

“In legislation enacted pursuant to the spending power, the typical

remedy for state noncompliance with federally imposed conditions is

not a private cause of action for noncompliance but rather action

by   the   Federal    Government   to    terminate   funds   to   the   State.”

.7

      In this case, because federal funds were given to the city as

a one-time grant, Congress provided other means of enforcing the

terms of the federal-state contract.              It is apparent from the

structure    and     text   of   the    statute   that   Congress    committed



         Nothing in Franklin v. Gwinnett County Pub. Sch., 

(1992),
diminishes the force of this language from Pennhurst as it applies here.
Franklin considered the availability of money damages as a remedy for violations
of title IX. See 

While the Court acknowledged that the language
from Pennhurst limited the remedies available under federal funding statutes in
cases of unintentional discrimination, it declined to extend that limitation to
cases of intentional discrimination. See 

This apparent limitation
of Pennhurst speaks only to the availability of remedies where a statutory right
of action already exists, as in the case of title IX. Indeed, as the Franklin
Court itself stated, “the question of what remedies are available under a statute
that provides a private right of action is ‘analytically distinct’ from the issue
of whether such a right exists in the first place.” 

(quoting Davis
v. Passman, 

, 239 (1979)). Thus, nothing in Franklin casts any doubt
on our general rule, see Allen 

, that inferring private
rights of action from appropriations measures is disfavored.

                                         9
administration of the grant program to the Secretary of HUD, who

was to be assisted in some capacities by the Secretary of the

Interior.    Sections 701 to 709 of the Act repeatedly refer to the

Secretary of HUD, carefully describing his duties in administering

the grant program. Conspicuously absent is any mention of private,

third-party    enforcement      of   this    contract    between   the   federal

government and the city.        Rather, enforcement of the terms of the

contract is committed to the executive authority of the Secretary

of HUD.

     In Former Special Project Employees Ass’n v. City of Norfolk,

(4th Cir. 1990), the court held that the Model Cities

ActSSanother HUD grant programSSdid not imply a private right of

action.    See 

     The court cited approvingly cases from

the Ninth and Eleventh Circuits holding that “funding statutes

typically are not sufficiently focused on the benefiting class to

confer federal rights on the members of the class.”                  

The court also quoted with approval the language from Pennhurst

disavowing implied private rights of action for noncompliance with

the terms of a federal-state contract.              See 

     The structure and language of § 705 constitute overwhelming

evidence      that    Congress       did      not     contemplateSSlet     alone

authorizeSSprivate enforcement of the open-space land program.

Where   analysis     of   the   first   two    Cort    factors   leads   to   the

conclusion that Congress did not intend to create a private right

of action, we need not address the other two Cort factors.                    See

California v. Sierra Club, 

, 298 (1981) (citing Touche


                                        10


).

     We therefore hold that § 705 does not imply a private right of

action.   Accordingly, we REVERSE, VACATE the permanent injunction,

and render a judgment of dismissal for failure to state a cause of

action.    Landmarks’s cross-appeal regarding the scope of the

injunction is DISMISSED as moot.




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