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 wh