Save Our Valley v. Sound Transit

Opinion by Judge GOULD; Dissent by Judge BERZON.

OPINION

GOULD, Circuit Judge.

Save Our Valley, a community group, challenges the Central Puget Sound Regional Transit Authority’s plan to build a light-rail line through the Rainier Valley south of Seattle, Washington. Save Our Valley argues that the project will have the effect of discriminating against Rainier Valley residents based on race in violation of a Department of Transportation regulation. The primary question before us is whether that Department of Transportation regulation creates an individual federal right that can be enforced under the Civil Rights Act, 42 U.S.C. § 1983. Because we conclude that the regulation does not create such a right, we affirm the district court’s summary judgment.

I

The Central Puget Sound Regional Transit Authority (“Sound Transit”) is charged with building a light-rail line to connect the Northgate area in north Seattle with Sea-Tac Airport in Sea-Tac, Washington. The preferred twenty-one— mile route is proposed to pass through several Seattle neighborhoods, including south Seattle’s Rainier Valley, a neighborhood populated predominantly by minority residents. The 4.6-mile segment through Rainier Valley is to be built at street level. Most of the segments through other neighborhoods are to be elevated above street level or to be built underground.

As pertinent to this appeal, Save Our Valley (“SOV”) filed suit under 42 U.S.C. § 1983 against Sound Transit alleging that the street-level alignment through Rainier Valley will cause disproportionate adverse impacts to minority residents, including the taking of residential and commercial properties, the displacement of community facilities, the disruption of businesses, and safety problems.¹ SOV alleged that Sound Transit’s plan violated a Department of Transportation “disparate impact” regulation — promulgated pursuant to Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C.. § 2000d et seq. — that prohibits recipients of federal funds (like Sound Transit) from taking actions that have the effect of discriminating on the basis of race.² SOV argued that this Department of Transportation regulation creates an individual federal right that SOV can enforce under 42 U.S.C. § 1983.

The district court disagreed that the regulation created such a right and granted summary judgment to Sound Transit. It then affirmed — without explanation — • the clerk of court’s taxation of $5,310.55 in costs against SOV as the losing party pursuant to Rule 54(d). This appeal followed.

II

The primary question in this appeal is whether the Department of Transportation’s disparate-impact regulation creates an individual federal right that can be enforced through a § 1983 action. The answer to that specific question depends upon the answer to a more general question: Can a federal agency’s regulations ever create individual rights enforceable through § 1983? We have never ruled on this fundamental question, which has divided our sister circuits. But because of controlling Supreme Court precedent, we hold that an agency regulation cannot create individual rights enforceable through § 1983.

Section 1983 creates a cause of action against any person who, acting under color of state law, abridges “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. The Supreme Court has held that only violations of rights, not laws, give rise to § 1983 actions. Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). This makes sense because § 1983 merely provides a mechanism for enforcing individual rights “secured” elsewhere, i.e., rights independently “secured by the Constitution and laws” of the United States. “One cannot go into court and claim a ‘violation of § 1983’ — for § 1983 by itself does not protect anyone against anything.” Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268 (quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)).

The Third, Fourth, and Eleventh Circuits have held that an agency regulation cannot create an individual federal right enforceable through § 1983. See S. Camden Citizens in Action v. New Jersey Dep’t. of Envtl. Prot., 274 F.3d 771, 784, (3d. Cir.2001); Smith v. Kirk, 821 F.2d 980, 984 (4th. Cir.1987); Harris v. James, 127 F.3d 993, 1008 (11th Cir.1997). These courts reasoned the same way. They began by surveying the Supreme Court’s § 1983 cases. In those cases, the courts noted, the Supreme Court’s persistent focus was on tying the claimed right to Congress’s intent (if any) to create the right. S. Camden Citizens in Action, 274 F.3d at 788; Harris, 127 F.3d at 1007. This focus on Congress’s intent, paired with the Supreme Court’s treatment of regulations as mere “administrative interpretations of the statute” in those cases, persuaded the courts that the Supreme Court’s § 1983 jurisprudence is founded on the principle that Congress creates rights by statute, and that valid regulations merely “define” or “flesh out” the contents of those rights. S. Camden Citizens in Action, 274 F.3d at 790; Harris, 127 F.3d at 1008-09.³

On the other side of the circuit split, the District of Columbia and Sixth Circuits have held that an agency regulation can create an individual federal right. See Samuels v. District of Columbia, 770 F.2d 184 (D.C.Cir.1985); Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir.1994). These courts’ holdings were based on a broad reading of the Supreme Court’s decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the first to hold that a violation of statutory rights may be remedied through § 1983. Samuels, 770 F.2d at 199. Although Thiboutot involved the violation of a statute, not a regulation, the D.C. Circuit (and, tacitly, the Sixth Circuit) reasoned that Thiboutot’s broad analysis of the “ ‘laws’ clause” of § 1983 suggested that § 1983 could be used to remedy violations of all valid federal laws, including regulations. Id.

The Supreme Court has never addressed this issue directly, so no single Supreme Court precedent controls our de-cisión in this case. Nonetheless, we begin our analysis with two recent Supreme Court decisions — Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) — -that are important because they have strengthened the legal foundation underlying the Third, Fourth, and Eleventh Circuits’ holdings and eroded the legal foundation underlying the D.C. and Sixth Circuits’ holdings. To evaluate the various circuit courts’ holdings (as we do below), one must consider them in the new context of Sandoval and Gonzaga.

In Sandoval, the Court considered a challenge to the Alabama Department of Public Safety’s official policy of administering its driver’s license examination only in English as violative of Title VI and its implementing regulations. See 532 U.S. at 278-79, 121 S.Ct. 1511. The plaintiffs claimed that the implementing regulations — which were § 602 disparate-impact regulations virtually identical to those in this appeal — created a private right of action. Id. The Court rejected the claim, basing its analysis not on the regulation’s text but on the statute’s text. Id. at 293, 121 S.Ct. 1511. The Court held that only Congress by statute can create a private right of action. Id. at 291, 121 S.Ct. 1511.

Although the Sandoval Court addressed only one kind of federal right — implied rights of action — its reasoning has broader implications. The Court suggested that only Congress by statute can create individual rights of any kind (including, we conclude, rights enforceable through § 1983). Even though the plaintiff alleged that the disparate-impact regulations created the claimed right, the Court never performed any analysis of the regulations themselves (as SOV would have us do in this case). The Court wrote:

The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to preate not just a private right but also a private remedy. Statutory intent on .this latter point is determinative.

532 U.S. at 286-87, 121 S.Ct. 1511 (citations omitted) (emphasis added).

Language in a regulation may invoke a private right of action that ■ Congress through statutory text created, but it may not create a right that Congress has not.

532 U.S. at 291, 121 S.Ct. 1511 (emphasis added).

[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.-

532 U.S. at 291, 121 S.Ct. 1511.

These statements refer to the creation of implied rights of action, rather than to the creation of individual rights enforceable through § 1983. But the Court’s reasoning applies equally to both kinds of rights. Both implied rights of action and rights enforceable through § 1983 are creatures of federal substantive law. And it is an elementary principle of constitutional law that lawmaking is the province of Congress. As the Court stated in Sandoval, “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” 532 U.S. at 286, 121 S.Ct. 1511 (emphasis added). Cf. U.S. Const. Art. I, Section 1 (“All legislative powers herein granted shall be vested in a Congress of the United States”); Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“Article I, § 1, of the Constitution vests ‘[a]ll legislative Powers herein granted ... in a Congress of the United States.’ This text permits no delegation of those powers.”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (“In the. framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”) (quoted with approval in INS v. Chadha, 462 U.S. 919, 954 n. 16, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (“The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested”). Individual rights enforceable through § 1983 — like implied rights of action — are creatures of substantive federal law; therefore, they must be created by Congress.⁴

Any doubt that may have remained as to the genesis of individual rights enforceable through § 1983 after Sandoval was eliminated by the Supreme Court’s Gonzaga decision. In Gonzaga, a decision that held that the Family Educational Rights and Privacy Act was not privately enforceable through § 1983, the Court confirmed that individual rights enforceable through § 1983 and implied private rights of action are similar in respects relevant to this appeal:

We ... reject the notion that our implied right of action, cases are separate and distinct from our § 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.

536 U.S. at 283, 122 S.Ct. 2268. The Court continued:

We have recognized that whether a statutory violation may be enforced through § 1983 “is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” But the inquiries overlap in one meaningful respect — in either case we must first determine whether Congress intended to create a federal right.

Id. (citation omitted). As in Sandoval, the Court here suggested that federal rights are created by Congress through statutes, not by agencies through regulations. More importantly for our purposes, the Court’s reasoning strongly supports our view that individual rights enforceable through § 1983 are similar to implied rights of action in the important respect that both are federal substantive law and that in each case courts are required to “determine whether Congress intended to create a federal right.” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268 (emphasis added).⁵ Since only Congress can create implied rights of action (as the Court held in Sandoval), the Court’s Gonzaga holding suggests that only Congress can create rights enforceable through § 1988.

Other Supreme Court decisions also have focused squarely on Congress’s intent to create individual rights. See Blessing, 520 U.S. at 341, 117 S.Ct. 1353 (concentrating on Congress’s intent to create rights in a statute enforceable through § 1983); Suter v. Artist M., 503 U.S. 347, 357, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) (same); Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 509, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (same); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110-11, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (same); Wright, 479 U.S. at 430, 107 S.Ct. 766 (same). As the Third Circuit observed, “[T]he Supreme Court [has] refined its analysis to focus directly on Congress’ intent to create enforceable rights and to confine its holdings to the limits of that intent.” S. Camden Citizens in Action, 274 F.3d at 784 (holding that § 602 regulations are not enforceable through § 1983).

We believe the Supreme Court’s Sandoval and Gonzaga decisions, taken together, compel the conclusion we reach today: that agency regulations cannot independently create rights enforceable through § 1983. Our conclusion should surprise no one, as it results directly from the broader, venerated constitutional law principle that Congress, rather than the executive, is the lawmaker in our democracy.

SOV relies primarily on the Supreme Court’s decision in Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), for the proposition that valid federal regulations may create rights enforceable through § 1983. In Wright, the plaintiffs alleged that a local housing authority violated a federal statute (imposing a rent ceiling) and the statute’s implementing regulations (requiring public housing authorities to include a reasonable utility allowance in tenants’ rent). See id. at 419, 107 S.Ct. 766. The Supreme Court held that the plaintiffs could maintain a suit under § 1983 for violation of the statute and the HUD regulations. See id. at 431, 107 S.Ct. 766. This holding, according to SOV, must mean the HUD regulations created enforceable rights.

We disagree. The mere fact that the Wright Court permitted a plaintiff to maintain a § 1983 suit for violation of the regulations does not necessarily mean the regulations created the claimed right. Rather, it seems that the Court understood that the statute, rather than the HUD regulations, created the right. The Court looked to the regulations only to interpret the scope of the right that Congress had conferred through the statute. This conclusion is evident in the Court’s focus on Congress’s intent in enacting the statute, rather than on the agency’s intent in promulgating the regulations. The Court referred to “the benefits Congress intended to confer on tenants.” 479 U.S. at 432, 107 S.Ct. 766 (emphasis added). It also stated that “HUD’s view is entitled to deference as a valid interpretation of the statute.” Id. at 430, 107 S.Ct. 766 (emphasis added). As the Third Circuit stated (in a case similar to this one):

[T]he Wright Court located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right .... Wright does not hold that a regulation alone — ie., where the alleged right does not appear explicitly in the statute, but only appears in the regulation — may create an enforceable federal right.

S. Camden Citizens in Action, 274 F.3d at 783. The Third Circuit’s analysis of Wright echoed an earlier decision by the Eleventh Circuit: “We conclude that the Wright majority did not hold that federal rights are created either by regulations ‘alone’ or by any valid administrative interpretation of a statute creating some enforceable right.” Harris, 127 F.3d at 1008.

Moreover, as the four dissenting Justices observed in Wright, the Wright majority did not reach the question of whether an agency regulation could create a right. Plus, the dissenters noted, the suggestion that a regulation could create a right would have been “troubling.” Justice O’Connor, joined by Chief Justice Rehnquist, Justice Powell, and Justice Sca-lia, wrote:

In the absence of any indication in the language, legislative history, or administrative interpretation of the Brooke Amendment that Congress intended to create an enforceable right to utilities, it is necessary to ask whether administrative regulations alone could create such a right. This is a troubling issue not briefed by the parties, and I do not attempt to resolve it here ... I am concerned ... that lurking behind the Court’s analysis may be the view that, once it has been found that a statute creates some enforceable right, any regulation adopted within the purview of the statute creates rights enforceable in federal courts, regardless of whether Congress or the promulgating agency ever contemplated such a result. Thus, HUD’s frequently changing views on how best to administer the provision of utilities to public housing tenants becomes the focal point for the creation and extinguishment of federal “rights.” Such a result, where determination of § 1983 “rights” has been unleashed from any connection to congressional intent, is troubling indeed.

Wright, 479 U.S. at 437-38, 107 S.Ct. 766 (O’Connor, J., dissenting).

Our view that Wright does not stand for the proposition that regulations can create federal rights seems even more persuasive in light of the Supreme Court’s subsequent cases. The Court’s opinion in Sandoval (where the Wright dissenters were in the majority), for example, shows a dogged focus on Congress’s intent to create federal rights. At the same time, it shows an utter neglect of the intent underlying administrative regulations.

SOV cites two post -Wright Supreme Court decisions as confirming its understanding of Wright. In Wilder v. Virginia Hospital Assocation, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the Court stated that “in Wright ... we found that the[statute] and its implementing regulations did create rights enforceable under § 1983.” Id. at 511, 110 S.Ct. 2510 (emphasis added). The Court also noted that the rights created were sufficiently specific to satisfy the specificity prong of the three-prong Blessing v. Freestone test (the Supreme Court’s test for determining whether a federal statute creates individual federal rights enforceable under § 1988) “[bjecause the regulations set out guidelines for the housing authorities to follow.” Id. at 511-12, 110 S.Ct. 2510. And in Suter v. Artist M., 508 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court stated that in Wright a “statute ... in conjunction with regulations ... created rights under § 1983.” Id. at 362 n. 13, 112 5.Ct. 1360.

Although this language suggests some role for agency regulations in applying the three-prong Blessing test to statutes,⁶ it does not mean that an agency regulation alone can create a federal right. Rather, the language is consistent with the view that “so long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further de: fines or fleshes out the content of that right, then the statute — ‘in conjunction with the regulation’ — may create a federal right as further defined by the regulation.” Harris, 127 F.3d 993 at 1009. In any case, the Court’s more recent decisions, reasoning that right-making is the exclusive province of Congress, dispel any doubt raised by the language in Wilder and Suter.⁷

Next, SOV urges that our decision in Buckley v. City of Redding, 66 F.3d 188 (9th Cir.1995), requires us to rule in its favor. SOV argues that Buckley holds that where a regulation “alone satisfies all three requirements [of the Supreme Court’s Blessing test], the regulation by itself creates the enforceable right.” But Buckley, does not support this broad proposition. The issue in Buckley was whether the Federal Aid in Sport Fish Restoration Act — not its enabling regulations- — created an enforceable federal statutory right under § 1983. See Buckley, 66 F.3d at 189-90. We began our opinion, “In this case, we must determine whether the Federal Aid in Sport Fish Restoration Act (‘the Act’) confers a right enforceable under 42 U.S.C. § 1983.” Id. at 189 (citations omitted). “We hold that the Act does confer rights enforceable under section 1983.” Id. (emphasis added); Although we referred to the regulations,⁸ we were careful to emphasize that the regulations were interpretive. Moreover, consistent with Supreme Court precedent,-we focused our inquiry squarely on Congress: “In a section 1983 action, the plaintiff must establish that Congress created an -enforceable statutory right.” Id. (emphasis added). In other words, rather than contradicting the view that only Congress can create a right enforceable under § 1983, our opinion in Buckley supports it.

Finally, SOV points out that the D.C. and Sixth Circuits have held that regulations can create individual rights. See Samuels, 770 F.2d at 199; Loschiavo, 33 F.3d at 551. In Samuels, tenants of a federally funded public housing project filed suit against local public housing officials to enforce the United States Housing Act and HUD regulations. See 770 F.2d at 188. The D.C. Circuit opined:

[Pjlaintiffs clearly allege that the District’s public housing officials have violated the applicable HUD regulations, and that allegation alone,, we think, states a cognizable section 1983 claim under the circumstances of this case. HUD’s grievance procedure regulations clearly have the full force and effect of federal law: they are issued under a congressional directive to implement specific statutory norms and they affect individual rights and obligations.... While Thiboutot involved a statutory violation, the Court’s broad analysis of the “laws” clause of section 1983 indicates that section 1983 provides a legal remedy for the violation of all valid federal laws, including at least those federal regulations adopted pursuant to a clear congressional mandate that have the full force and effect of law. Such regulations have long been recognized as part of the body of federal law.

Id. at 199.

The D.C. Circuit’s reasoning is flawed. The D.C. Circuit assumed (and misread the Supreme Court’s decision in Thiboutot to mean) that the mere fact that a statute or regulation is a “law” within the meaning of § 1983 makes it capable of creating rights. The court stated that “substantive federal regulations issued under Congress’ mandate constitute ‘laws’ within the meaning of section 1983. We therefore hold that the plaintiffs state a valid section 1983 claim.” Samuels, 770 F.2d at 199. The D.C. Circuit skipped a step. For a statute or regulation to be enforced through § 1983, more is needed than for the statute or regulation to be a “law.” The statute or regulation must be a “law” and it must secure “rights, privileges, or immunities.” 42 U.S.C. § 1983. See also Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268 (“[Section] 1983 merely provides a mechanism for enforcing rights ‘secured’ elsewhere.”). And the Supreme Court has all but held that only certain kinds of laws — not including regulations — can create such rights.

Second, the D.C. Circuit’s opinion is founded on an out-dated understanding of the relationship between implied rights of action and rights enforceable under § 1983. The D.C. Circuit wrote, “[Statutory section 1983 claims differ significantly from implied rights of action.” Samuels, 770 F.2d at 194. This language is difficult to square with the Supreme Court’s recent holding “rejecting] the notion that our implied right of action cases are separate and distinct from our § 1983 cases.” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268. Moreover, the D.C. Circuit explained that the critical difference between § 1983 and implied right of action cases is their different burdens of proof. Section 1983 plaintiffs — unlike implied right of action plaintiffs — “do not suffer the burden of demonstrating that Congress specifically intended to preserve the ability of private parties to enforce the relevant provisions of federal law against those officials.” Id. But the court failed to mention that a plaintiff is not entitled to this presumption until after the plaintiff has made the threshold showing that Congress intended to create a federal right. As the Supreme Court would later explain,

Plaintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983. But the initial inquiry — determining whether a statute confers any right at all — is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute “confer[s] rights on a particular class of persons.”

Gonzaga, 536 U.S. at 284-85, 122 S.Ct. 2268 (citations omitted) (emphasis added). Thus, the D.C. Circuit again skipped a step: the “initial inquiry” that is the central question in this appeal.

The Sixth Circuit’s reasoning in Los-chiavo tracks the D.C. Circuit’s reasoning in Samuels, but it is far more conclusory. The Sixth Circuit’s analysis consisted of two sentences:

In Maine v. Thiboutot, 448 U.S. 1, 6-8, 100 S.Ct. 2502, 2505-06, 65 L.Ed.2d 555 (1980), the Supreme Court recognized that plaintiffs may use § 1983 to enforce not only constitutional rights, but also those rights defined by federal statutes. As federal regulations have the force of law, they likewise may create enforceable rights.

Loschiavo, 33 F.3d at 551. The Sixth Circuit’s holding suffered from the same flaw as the D.C. Circuit’s holding. It assumed that if a regulation is a “law” it must be the kind of law enforceable through § 1983.⁹

A final problem with the Sixth and D.C. Circuits’ opinions is that they predated the Supreme Court’s decisions in Sandoval and Gonzaga. As we explained above, Sandoval and Gonzaga, taken together, compel the conclusion that only Congress can create an individual federal right. We therefore reject the approach of the Sixth and D.C. Circuits and hold that an agency regulation cannot create ah individual federal right.

To summarize the principles we hold apply in this case: Violations of rights, not violations of laws, give rise to § 1983 actions. Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268; Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Plaintiffs suing under § 1983 must demonstrate that a statute— not a regulation — confers an individual right.¹⁰ S. Camden Citizens in Action, 274 F.3d at 781; Harris, 127 F.3d at 1008-09. As an agency interpretation of a statute, a regulation may be relevant in determining the scope of the right conferred by Congress. S. Camden Citizens in Action, 274 F.3d at 783. Agency regulations therefore may be considered in applying the three-prong Blessing test. See Buckley, 66 F.3d at 190. But the inquiry must focus squarely on Congress’s intent. The paramount consideration is to determine if Congress intended to create the particular federal right sought to be enforced. See Suter, 503 U.S. at 357, 112 S.Ct. 1360; S. Camden Citizens in Action, 274 F.3d at 788.

In this case, our analysis begins and ends with Congress’s intent. The Supreme Court already has held that Congress never intended to create the right SOV claims, the right to be free from racially disparate effects. The Court has often repeated that “Title VI itself directly reach[es] only instances of intentional discrimination.” Sandoval, 532 U.S. at 281, 121 S.Ct. 1511; Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Because Title VI does not create the right the plaintiffs seek to enforce, we affirm the district court’s judgment dismissing the action.¹¹

Ill

A separate, alternative line of analysis requires us to hold that SOV cannot enforce the disparate-impact regulation. Even if a regulation in general could create an individual federal right enforceable through § 1983, it is plain that the disparate-impact regulation at issue here does not create such a right.

As we explained above, the disparate-impact regulation was promulgated by the Department of Transportation based on authority granted it by Congress in Title VI. In § 601 of that title, Congress created a right to be free from intentional discrimination based on race. In § 602, Congress authorized federal agencies to “effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d 1. Congress in § 602 did not authorize federal agencies to create new rights. As the Supreme Court held in Sandoval, “[f]ar from displaying congressional intent to create new rights, § 602 limits agencies to ‘effectuating]’ rights already created by § 601.” 532 U.S. at 289, 121 S.Ct. 1511 (2001). The disparate-impact regulation cannot create a new right; it can only “effectuate” a right already created by § 601.And § 601 does not create the right that SOV seeks to enforce, the right to be free from racially discriminatory effects. Sandoval, 532 U.S. at 280, 121 S.Ct. 1511 (“[I]t is ... beyond dispute — and no party disagrees — that § 601 prohibits only intentional discrimination.”). A regulation cannot “effectuate” a statutory right by creating a new and different right. See Cal. Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460 (9th Cir.1997) (“A regulation may not serve to amend a statute, nor add to the statute ‘something which is not there.’ ”). On this alternative ground, SOV’s claim must fail.

IV

SOV asserts that the district court abused its discretion by awarding $5,310.55 in costs to Sound Transit.¹² Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show why costs should not be awarded. Stanley v. Univ. of Southern California, 178 F.3d 1069, 1079 (9th Cir.1999); Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir.1995).

In Stanley, we held that the district court abused its discretion in rejecting a losing civil rights plaintiff’s motion to deny costs to the defendant without considering: (1) the plaintiffs limited financial resources and (2) the chilling effect on future civil rights litigants of imposing high costs. Stanley, 178 F.3d at 1079. SOV argues that Stanley’s requirement that the district court “consider” the two Stanley factors means that the court must specify reasons for awarding costs to the prevailing party when a civil rights plaintiff puts those considerations at issue.

Although a district court must “specify reasons” for its refusal to tax costs to the losing party, Assoc. of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir.2000); Subscription Television, Inc. v. Southern Cal. Theatre Owners Ass’n, 576 F.2d 230, 234 (9th Cir.1978), we have never held that a district court must specify reasons for its decision to abide the presumption and tax costs to the losing party. The distinction is critical. A district court deviates from normal practice when it refuses to tax costs to the losing party, and that deviation triggers the requirement to “specify reasons.” As we explained in Association of Mexican-American Educators,

The requirement that district courts give reasons for denying costs flows logically from the presumption in favor of costs that is embodied in the text of the rule; if a district court wishes to depart from that presumption, it must explain why so that the appellate court will be able to determine whether or not the trial court abused its discretion.... Our requirement that a district court give reasons for denying costs is, in essence, a requirement that the court explain why a case is not ordinary.

Assoc. of Mexican-American Educators v. California, 231 F.3d at 592-93 (internal quotation marks omitted). This reasoning suggests, as we hold today, that a district court need not give affirmative reasons for awarding costs; instead, it need only find that the reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of an award. The presumption itself provides all the reason a court needs for awarding costs, and when a district court states no reason for awarding costs, we will assume it acted based on that presumption. Stanley only held that, in the rare occasion where severe injustice will result from an award of costs (such as the injustice that would result from an indigent plaintiffs being forced to pay tens of thousands of dollars of her alleged oppressor’s legal costs), a district court abuses its discretion by failing to conclude that the presumption has been rebutted. No such injustice will result from the award of $5,310.55 in this case.

SOV observes that we have approved several factors that would justify a district court’s refusal to award costs to a prevailing party: the losing party’s limited financial resources, see National Org. for Women v. Bank of Cal., 680 F.2d 1291, 1294 (9th Cir.1982); misconduct on the part of the prevailing party, see National Info. Servs., 51 F.3d at 1472; the importance of the issues, Assoc. of Mexican-American Educators v. California, 231 F.3d 572, 593 (2000); the importance and complexity of the issues, Id.; the merit of the plaintiffs case, even if the plaintiff loses, Id.; and the chilling effect on future civil rights litigants of imposing high costs. Stanley, 178 F.3d at 1079. SOV argues that these factors weigh in its favor: SOV is a nonprofit organization with limited resources. It has raised issues of great public importance, both to the local community and to civil rights plaintiffs everywhere. The legal questions it has raised are close and complex; indeed, the circuits are split over a major question raised by, this appeal. These factors would have justified the district court’s decision to deny costs to the prevailing party, had the district court exercised its discretion in that manner. But that does not mean that the district court had to state the reasons that it awarded costs.

The district court might have believed that this relatively small sum — $5,810.55— would not “chill” future civil rights litigation, see Assoc. of Mexican-American Educators, 231 F.3d at 593 (affirming the district court’s denial of $216,443.67 in costs to a prevailing defendant); that the prevailing party had engaged in no misconduct that should . disqualify it from costs; or that there were other reasons to award costs. But the district court needs no affirmatively expressed reason to tax costs. Rather, it need only conclude that the reasons advanced by the party bearing the burden — the losing party — are not sufficiently persuasive to overcome the presumption. In the circumstances of this ease, the presumption itself provided an adequate reason for the district court to award costs. We decline to adopt a rule that would place on district courts the burden of justifying routine awards of costs against losing parties in civil rights cases.

AFFIRMED.

1 . SOV also claimed that Sound Transit’s plan would violate the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Fair Housing Act, 42 U.S.C. §§ 3601-3631, and Title VI of the Civil Rights Act, which prohibits recipients of federal funds from administering programs in an intentionally discriminatory manner. The district court dismissed SOV’s NEPA claim, holding that Sound Transit had studied the feasibility of the Rainier Valley Tunnel alternative (at the request of SOV members) and reasonably concluded that alternative was not feasible. It granted summary judgment to Sound Transit on the Fair Housing Act claim on the ground that Sound Transit was not engaged in housing-related activities. The court held that SOV's claims based on § 601 of Title VI could proceed to the extent that SOV can prove that any discrimination was intentional. None of these decisions has been appealed, so we limit our review to whether SOV can sue under § 1983 to enforce the disparate-impact regulations promulgated pursuant to § 602 of Title VI.

2 . The disparate-impact regulation at issue was promulgated by the Department of Transportation based on authority granted it by Congress in Title VI of the Civil Rights Act of 1964. In § 601 of that Title, Congress created a right to be free from intentional discrimination based on race. In § 602, Congress authorized federal agencies to "effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-l. Pursuant to § 602, the Department of Transportation promulgated the disparate-impact regulation, which prohibits funding recipients from undertaking activities that have racially discriminatory effects. The regulation forbids recipients of federal funds to “utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin." 49 C.F.R. § 21.5(b)(2).

The regulation goes further than the statute it implements, proscribing activities that have disparate effects on racial groups, even though such activities are permissible under § 601. The Supreme Court has recognized that there is "considerable tension” between § 601 and the disparate-impact regulation. Alexander v. Sandoval, 532 U.S. 275, 282, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). For purposes of deciding this case, as the Supreme Court did in Sandoval, id., that the regulation may validly proscribe activities that have a disparate impact on racial groups. No party has challenged the validity of the regulation, and we need not decide whether the regulation is invalid.

3 . Compared with the Third and Eleventh Circuits' analysis, the Fourth Circuit’s was superficial. The Fourth Circuit simply noted the absence of Supreme Court precedent and that Supreme Court justices had expressed doubt (in dissent) that "administrative regulations alone could create such a right.” Smith, 821 F.2d at 984. It therefore held that "[a]n administrative regulation ... cannot create an enforceable § 1983 interest not already implicit in the enforcing statute.” Id.

4 . Building on an interesting survey of sources from Immanuel Kant to Roscoe Pound, the partial dissent argues at length that rights enforceable through § 1983 are different from implied rights of action. We do not disagree with this proposition. As the partial dissent correctly explains, rights enforceable through § 1983 are in the nature of a substantive entitlement; implied rights of action are in the nature of a remedy.

The partial dissent does not argue, and could not argue persuasively, that rights enforceable through § 1983 differ from implied rights of action in a manner relevant to this appeal. Specifically, the partial dissent does not explain why executive agencies cannot create implied rights of action (the Supreme Court's Sandoval holding) but can in its view create rights enforceable through § 1983 (the partial dissent's approach). The reason for the partial dissent's omission is clear: the partial dissent’s approach cannot be reconciled with Sandoval. Rights enforceable through § 1983, no less than implied rights of action, are creatures of substantive federal law. As such, they cannot be created by executive agencies. See Sandoval, 532 U.S. at 286, 121 S.Ct. 1511 ("Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.”).

5 . SOV and the amici curiae rely on our 1984 opinion in Keaukaha-Panaewa Comm. Ass’n. v. Hawaiian Homes Comm’n., 739 F.2d 1467. In that decision we stated:

The lack of an implied private right of action under a federal act ... does not by itself dispose of the issue of Congressional intent to foreclose private actions under section 1983 ... As we have stated expressly, "there could well be federal rights enforceable under section 1983 which are not enforceable by means of a private right of action under the statute creating them.”

Id. at 1470 (quoting Boatowners and Tenants Ass’n, Inc. v. Port of Seattle, 716 F.2d 669, 674 (9th Cir.1983)). Even if the above-quoted language remains an accurate statement of our law, the Supreme Court in Gonzaga added another consideration: “[I]mplied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.” 536 U.S. at 283, 122 S.Ct. 2268.

6 . For other cases in the courts of appeals dealing with causes of action relying at least in part on a regulation, see Farley v. Philadelphia Hous. Auth., 102 F.3d 697 (3d Cir.1996); Buckley v. City of Redding, Cal., 66 F.3d 188 (9th Cir.1995); Albiston v. Maine Comm’r of Human Services, 7 F.3d 258 (1st Cir.1993); Howe v. Ellenbecker, 8 F.3d 1258 (8th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1373, 128 L.Ed.2d 49 (1994); and Samuels v. District of Columbia, 770 F.2d 184 (D.C.Cir.1985). The Eleventh Circuit observed that underlying at least some of these cases is the understanding that only statutes can create rights and that regulations merely define the contours of rights created by Congress. See Harris, 127 F.3d at 1007 n. 18 (citing Farley, 102 F.3d at 699 ("[The] cause of action arises strictly under [the statute]. Regulation § 966.57(b) merely interprets that section.”)).

7 . SÓV also refers to what it calls "the Supreme Court's established practice of adjudicating section 1983 cases to enforce regulations under the Social Security Act, which itself contains no private cause of action.” Even if it is true that the Supreme Court has permitted litigants to enforce Social Security Act regulations, it does not necessarily follow that the regulations — rather than the Act— created the individual right being enforced.

8 . "[W]e must first determine whether the statute and its interpretive regulations create an enforceable federal statutory right.” Buckley, 66 F.3d at 190.

9 . For this reason, SOV’s lengthy argument that regulations are "laws” is not helpful.

10 . This normally would involve an application of the Supreme Court’s three-prong Blessing test:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the states. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory terms.

Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). Here, however, we need not apply the three-prong Blessing test because the Supreme Court already has told us that Title VI does not create the claimed right.

11 . The partial dissent refers to "[t]he majority’s notion that regulations are valid only if they flesh out a specific statutory provision.” See infra at 9288. We express no such notion. Indeed, we express no opinion as to the validity of any regulations. Rather, we hold that the disparate-impact regulation does not create a right enforceable through § 1983, particularly in light of the Supreme Court's Sandoval and Gonzaga decisions.

12 . The district court's award of costs to Sound Transit as the prevailing party is reviewed for an abuse of discretion. Sea Coast Foods, Inc. v. Lu-Mar Lobster and Shrimp, Inc., 260 F.3d 1054, 1058 (9th Cir.2001).