Adams v. Bell

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting Opinion filed by WRIGHT, Circuit Judge, in which ROBINSON, Chief Judge, WALD and MIKVA, Gircuit Judges join as to Parts I, II, III, and V.

WILKEY, Circuit Judge:

Since 1973 the United States District Court of the District of Columbia, in the course of adjudicating the suit Adams v. Richardson, has taken an active role in delineating the Department of Education’s responsibilities in enforcing Title VI of the Civil Rights Act. 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. We affirm the district court.

I.Background

Title VI of the Civil Rights Act prohibits discrimination by programs receiving-federal financial assistance. 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. 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. 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. 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.

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. 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. 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.

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. North Carolina contended that the enforcement proceeding was unauthorized by Title VI and violated various norms of constitutional and administrative law.

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. The North Carolina federal court then enjoined HEW deferral of aid during the enforcement proceeding, 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.

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. That court concluded that implementation of the terms of the settlement would bring the North Carolina higher education system into compliance with Title VI. 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.

Although appellants were limited intervenors in the administrative proceeding, 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. 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. U.S. District Judge Pratt ruled, however, that supervision of this Department decision was beyond the scope of his initial decree. This appeal ensued.

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, 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. 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. 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, and indeed have been subsequently revoked by the Department. 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 which the specifics of compliance would then be determined.

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.”

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.

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.” 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. 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.”

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.

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; indeed, they may have had a 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 . ...” 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. 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 fully protected by intervention in a pending lawsuit which provided an appropriate forum for consideration of appellants’ claims.

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.” 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 prior decision. But insofar as this is the ease, 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).

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.

We thus hold that, in the circumstances of this case, Judge Prátt 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.

. 356 F.Supp. 92 (D.D.C.), aff’d, 480 F.2d 1159 (D.C.Cir.1973).

. See Adams v. Weinberger, 391 F.Supp. 269 (D.D.C.1975) (first supplemental order); Adams v. Califano, 430 F.Supp. 118 (D.D.C.1977)(second supplemental order).

. See infra p. 164.

. Pub.L. 88-352, Title VI, §§ 601-605, 78 Stat. 252 (1964), codified at 42 U.S.C. §§ 2000d-2000d-4 (1976). See also 42 U.S.C. §§ 2000d-5 —6 (1976 & Supp. IV 1980).

. 42 U.S.C. § 2000d (1976).

. Id. § 2000d-l.

. Plaintiffs are black students, taxpayers and citizens who are wronged by expenditure of federal funds in programs which discriminate against blacks.

. Adams v. Richardson, 356 F.Supp. 92 (D.D. C.), aff’d, 480 F.2d 1159 (D.C.Cir.1973).

. 480 F.2d at 1165.

. Adams v. Califano, 430 F.Supp. 118 (D.D.C. 1977).

. Id. at 119-20.

. Id. at 121.

. North Carolina v. Dep’t of HEW, 480 F.Supp. 929 (E.D.N.C.1979).

. Id. at 937-38.

. Id. at 932-34.

. Id. at 938-40.

. Id. at 937-38 & 940 n. 8.

. North Carolina v. Dep’t of Educ., Mem. op., No. 79-217-CIV-5 (E.D.N.C. 17 July 1981).

. Id. at 3-8.

. Id. at 1-2.

. In the Matter of the State of North Carolina and the Board of Governors of the University of North Carolina, E.D. Docket No. 79-IV-l and HUD Docket No. 79-4 (Order of 13 Aug. 1979).

. North Carolina v. Dep’t of Educ., Mem. op. at 2 n. 1. See infra pp. 168-170 and note 39.

. Plaintiffs’ Motion for Temporary Restraining Order and for Preliminary Injunction, Civil Action No. 70-3095 (25 June 1981).

. Adams v. Bell, Transcript at 26-30, Civil Action No. 70-3095 (25 June 1981). Judge Pratt concluded that the exercise of its power under the decree was “directed primarily at the agency and not at the individual states and school districts with which the agency has to deal,” i.e., this power was “directed against the agency to see that the agency complied with its statutory [and] constitutional responsibilities. It was not directed ... at the individuals that are the subject of any action that the agency might see fit to take.” Id. at 29-30.

The 1973 decree which Judge Pratt interprets here had ordered the Department to initiate enforcement proceedings. See, e.g., Adams v. Richardson, 356 F.Supp. at 94 (“Having once determined that a state system of higher education is in violation of Title VI, and having failed during a substantial period of time to achieve voluntary compliance, defendants have a duty to commence enforcement proceedings ... [defendants, their successors, agents and employees, are required and enjoined within 120 days from the date of this Order to commence enforcement proceedings by administrative notice of hearing, or to utilize any other means authorized by law, in order to effect compliance with Title VI by the states .... ”). See also infra note 25, 30.

We wrote on review that the purpose of the 1973 decree was not to “resolve particular questions of compliance and noncompliance.” 480 F.2d at 1163. Our opinion continued:

Far from dictating the final result with regard to any of these districts, the order merely requires initiation of a process which, excepting contemptuous conduct, will then pass beyond the District Court’s continuing control and supervision. The school districts must be notified of the purpose to terminate and be given a hearing. 45 C.F.R. § 80.8(c). At the hearing conducted by a hearing examiner, the district enjoys the usual protections of an adjudicatory proceeding, including the right to counsel, the right to introduce all relevant evidence, and the right to cross-examine witnesses. The examiner’s decision can be appealed to a reviewing authority, then to the Secretary, and finally to the courts. 45 C.F.R. §§ 80.10, 80.11; 42 U.S.C. § 2000d-2. 28 U.S.C. § 1391 gives the school districts and states petitioning for such judicial review a choice of venue, including the judicial district in which the plaintiff resides.

.Since the decision affirmed here, the district court has entered two additional orders. On 10 March 1983 the court set deadlines for agency investigation of discrimination complaints, for attempts to achieve voluntary compliance and for initiation of enforcement proceedings. See Adams v. Bell, 51 U.S.L.W. 2560 (10 March 1983) (summary of order). On 24 March 1983 the district court ordered the Department to commence enforcement proceedings against certain states, while allowing to stand the Department’s acceptance of other states’ desegregation plans.

. See supra note 24 (quoting 1973 decree).

. Hence the details of the initial decree are limited to monitoring steps taken by the Department to initiate administrative hearings and do not extend to the substance of the Department’s enforcement policy. See 356 F.Supp. at 94-95. Similarly, the court’s most recent decrees address the Department’s responsibility to initiate enforcement proceedings, not the Department’s subsequent conduct of these proceedings. See supra note 25. This court, modifying and affirming the district court decision, also articulated these bounds upon the scope of the district court’s decree. See Adams v. Richardson, 480 F.2d at 1163-64 & n. 5. (As to the content of the second supplemental decree, see infra note 30.)

. See Adams v. Califano, 430 F.Supp. at 121 (order); Amended Criteria Specifying Ingredients of Acceptable Plans to Desegregate State Systems of Public Higher Education, 42 Fed. Reg. 40780 (11 Aug. 1977).

. See Revised Criteria, 43 Fed.Reg. 6658 (15 Feb. 1978).

.Of course, the court scrutinized specific plans for compliance when it ordered revocation of the department’s acceptance of those plans in 1977. But this order was premised upon failure of the plans to satisfy the Department’s own desegregation criteria — criteria which had never been passed upon by the district court. More importantly, the decision which provided the ground for the court’s scrutiny of specific plans — i.e., Department acceptance of those plans — preceded any enforcement action. The court’s action in this respect differs significantly, for reasons spelled out further infra pp. 167-170, from court scrutiny of desegregation plans accepted after initiation of administrative proceedings which culminate in a court order.

In other words, we agree with the district court that, for the reasons set out at pp. 166— 167, the decision made by the Department to compromise an ongoing enforcement proceeding is not at that stage an action subject to judicial review under 42 U.S.C. § 2000d-2, at least not within the terms of the governing Adams decree. Rather, that proceeding, whether culminating in a decision by the administrative law judge or in a settlement, itself terminates in an action which provides the predicate for judicial review in the appropriate district court. See infra pp. 168-170.

. 480 F.2d at 1163. See supra note 24.

. This is clearly articulated both by Title VI, see 42 U.S.C. §§ 2000d-l, -2, and by our opinion in Adams, see supra note 31. It should also be noted that the enforcement process naturally contemplates settlements such as that reached in the present case. We explained in Adams: “As judges well know, the setting down of a case for hearing does not automatically terminate voluntary negotiations nor eliminate the possibility of agreement. The need to prepare for actual hearing frequently causes litigants to focus on their weaknesses as well as their desires.” 480 F.2d at 1165. See also 42 U.S.C. § 2000d-l (policy of Title VI to encourage voluntary compliance). Extending the Adams decree to the Department’s decisions to settle, in contrast to permitting challenges to the settlement later in an appropriate district court, would impede such voluntary settlements. Indeed, we note that permitting challenges to continued funding while compliance negotiations were in progress, though justified in the Adams situation of conscious Department under- or non-enforcement, might in other situations be an undesirable distraction to Department attempts at obtaining voluntary compliance, although we of course do not reach this more general question in deciding the present case.

. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). We have also suggested that it is desirable to try cases concerning primarily local issues in the affected localities. See Liquor Salesmen’s Union Local 2 v. N.L.R.B., 664 F.2d 1200, 1205 (D.C.Cir.1981).

. Under the common law, trial in the vicinage was an ancient and respected right. See generally Blume, Place of Trial in Civil Cases, 48 Mich.L.Rev. 1 (1949). Originally, this right was established to facilitate trial by a jury with first-hand knowledge of the transactions at issue. As trial procedures evolved towards present-day practices, the right of venue came to serve the roles of protecting defendants from the inconvenience and harassment of participating in trial far from home, and of assuring an appropriate distribution of cases among different tribunals. Venue policies thus limit plaintiffs’ control over the litigation they initiate by limiting the courts to which they have access. In complex suits such as the present litigation, these policies must protect not only the interests of the technical defendants — here the Department of Education — but, more importantly, those whose rights and interests are in fact most vitally affected by the suit — the people of North Carolina. As the common law doctrine recognized, trial in the locality of the policies or transactions at issue is one way to respect those interests; and it serves to further public participation in and the accountability of a judicial process that will result in decisions directly and vitally affecting large numbers of citizens. The litigation of judicially-mandated desegregation — which has universally proceeded in the districts where the desegregation decrees are to be implemented — illustrates the same concern.

Of course, we do not suggest that the district court below would not in a formal sense meet the prerequisites of jurisdiction and venue for hearing plaintiffs’ case (except perhaps the requirement of jurisdiction to hear a suit against North Carolina, see infra p. 170). Instead, as noted in text, these principles correctly informed Judge Pratt’s interpretation of the decrees at issue in this case.

.See Adams v. Richardson, 480 F.2d at 1162. The evolving law under Title VI has provided a dual enforcement mechanism, comprising private suits brought directly against offending instrumentalities and administrative proceedings for termination of funding as prescribed by 42 U.S.C. § 2000d-l. See generally Cannon v. University of Chicago, 441 U.S. 677, 704-09, 99 S.Ct. 1946, 1961-1964, 60 L.Ed.2d 560 (1979) (discussing Title VI as “model” for Title IX). For examples of private suits against grant recipients to enforce Title VI, see Uzzell v. Friday, 547 F.2d 801, aff’d en banc, 558 F.2d 727 (4th Cir.), vacated on other grounds, 438 U.S. 912, 98 S.Ct. 3139, 57 L.Ed.2d 1158 (1977); Gilliam v. Omaha, 524 F.2d 1013 (8th Cir.1975); Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir.1974); Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir.1973). The Supreme Court has described private suits as an “important and especially flexible part” of the procedures for enforcing Title VI. Cannon, 441 U.S. at 706 n. 40, 99 S.Ct. at 1962 n. 40. In contrast, the Court notes that Congress had described the fund cutoff remedy as a “last resort”: “In most cases alternative remedies, principally lawsuits to end discrimination, would be the preferable and more effective remedy.” Id. at 705 n. 38, 99 S.Ct. at 1962 n. 38 (quoting legislative history); see also id. at 712 n. 49, 99 S.Ct. at 1965 n. 49. As the Court observed, one advantage of private actions as a means of judicial consideration of compliance with Title VI is that such actions are consistent with the Department’s fulfillment of its own responsibilities under Title VI, particularly where the aggrieved party complains of Department inaction, “[A] suit to compel the agency to investigate and cut off funds [citing Adams v. Richardson ] ... is far more disruptive of [the Department’s] efforts efficiently to allocate its enforcement resources under. Title IX than a private suit against the recipient of federal aid could ever be.” Id. at 707, 99 S.Ct. at 1963. As the Court’s citation of Adams suggests, Title VI and Title IX are analogous in this respect. Id. Clearly, private suits provide an appropriate and effective mechanism for judicial consideration of compliance with Title VI.

Of course, administrative proceedings for fund cutoffs provide an important means for enforcing Title VI. But such proceedings will be less frequently the occasion for judicial scrutiny of compliance by federally funded programs, because judicial review will be availáble only after a Federal “department or agency action.” 42 U.S.C. 2000d-2. Such action may include the “consciousf] and express[] adoption] of a general policy” of nonenforcement, the action which provides the predicate for the decrees in the Adams litigation. 480 F.2d at 1162. But, as we have stated, see supra pp. 166-167, the statutory requirement of administrative action to be followed by judicial review places responsibility for determination of the form of compliance, in the first instance, with the Department and the states, not with the courts.

. See 42 U.S.C. § 2000d-2 (“Any department or agency action taken pursuant to section 2000d-l of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds.”) Plaintiffs would arguably be persons “adversely affected or aggrieved by agency action within the meaning of” Title VI and therefore entitled to seek judicial review. 5 U.S.C. § 702 (1976).

. See F.R.Civ.P. 24(b) (Permissive Intervention). It is noteworthy in this regard that, upon appellants’ application, the North Carolina federal court did consider amicus briefs they submitted. See North Carolina v. Dep’t of Educ., Mem. op. at 2 n. 1.

. Id. 24(a) (Intervention of Right). In similar situations, some courts have denied intervention because the government is thought adequately to represent the putative intervenor’s claims. See, e.g., U.S. v. South Bend Community School Corp., 511 F.Supp. 1352, 1357 (D.C. Ind.1981); U.S. v. Carroll County Bd. of Educ., 427 F.2d 141 (5th Cir.1970). However, the cases indicate that the right to intervene may be enjoyed by putative intervenors who assert interests adverse to the government or who claim that the governmental party has been derelict in fulfilling its duties — which are precisely appellants’ claims in the present case. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972); Hanson v. Hobson, 408 F.2d 175 (D.C. Cir.1969); U.S. v. School of Omaha, 367 F.Supp. 198 (D.C.Neb.1973); U.S. v. Bd. of Educ. of Chicago, 88 F.R.D. 679, 686 (D.C.I11. 1981). In any event, the more critical point is that appellants did not even seek to intervene in the North Carolina proceedings, an omission which colors an equity court’s consideration of the propriety of the extraordinary relief they now seek.

. It is well settled that an intervenor may appeal from subsequent orders in an action. See, e.g., Cerro Metal Prods, v. Marshall, 620 F.2d 964, 969 (3d Cir.1980); In the Matter of First Colonial Corp. of Amer., 544 F.2d 1291 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). (Indeed, intervention may be granted solely to enable the intervenor to appeal, see, e.g., Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969).) Conversely, one who does not seek to intervene may not appeal a subsequent order, see, e.g., Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947).

We are puzzled by the suggestion that it was the responsibility of the North Carolina federal district court and of the parties before it to join the Adams plaintiffs in the litigation before that court. See Judge Wright’s Dissenting Op. at 196-197. When that litigation was pending, none of the Adams plaintiffs were citizens of North Carolina. North Carolina citizens were joined to the Adams suit, by appellants’ motion to add new parties plaintiff, only in November 1982, a year after entry of the consent judgment by the North Carolina district court. Thus, when the proposed consent decree was before the North Carolina federal district court, the Adams plaintiffs were not persons “subject to service of process” by that court and therefore could not meet the elementary requirement for joinder set out by the opening words of Rule 19(a). If appellants— who of course now include citizens of North Carolina — wished to assert some interest in the administrative proceeding and in the review of that proceeding by the North Carolina federal district court, it was incumbent upon them to intervene.

In any case, whatever the responsibility of the North Carolina parties to join the Adams plaintiffs in order to obtain collateral estoppel effect for the North Carolina federal district court judgment, this responsibility bears no relation to our present holding. We do not consider that relief under the Adams decrees is barred because of findings on any particular issues by the North Carolina federal district court. Moreover, given the timing of appellants’ suit, it would indeed be odd to consider collateral estoppel relevant to the initial action in the U.S. District Court of the District of Columbia. The Adams plaintiffs sought to enjoin the Department’s action prior to entry of the North Carolina consent judgment; their action could of course not be barred by a judgment which had not yet issued. In short, we have no occasion to give collateral estoppel effect to the North Carolina judgment; nor do we hold that plaintiffs’ failure to intervene in the North Carolina district court proceedings foreclosed relief otherwise available in the district court below. Compare Dissenting Opinion of Judge Wright at 194-196. Rather, our observation that appellants could have intervened in the North Carolina federal district court proceedings emphasizes that the interpretation of the Adams decrees by U.S. District Judge Pratt does not foreclose appellants from seeking judicial consideration of the Department’s actions: such consideration was fully available through normal procedures for judicial review.

. As the North Carolina district court recognized, a court should enter a consent decree affecting the public interest only after considering the substantive validity of the decree. North Carolina v. Dep’t of Educ., Mem. op. at 2 (E.D.N.C. 17 July 1981). See U.S. v. Miami, 614 F.2d 1322, 1330-31 (5th Cir.1980).

Of course, nothing in the present opinion reflects upon the power of the district court in the District of Columbia to supervise the policy of the Department with regard to whether it will initiate enforcement proceedings against school systems. As noted above, this is the gravamen of the court’s initial decree. See supra pp. 165-166. The court exercised this power in 1977, for example, when it ordered the Department to revoke its acceptance of plans submitted by the individual states which perpetuated past illegal discrimination. Adams v. Califano, 430 F.Supp. at 119-21; see supra note 30. We of course do not pass upon the question whether the court may have occasion to exercise this power again with reference to plans accepted by the Department after negotiation. Rather, once the processes of administrative enforcement and subsequent judicial review are set in motion, the role of the district court’s enforcement orders comes to an end.

. Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258, 261-63 (D.C.Cir.1980). The court cannot exercise its article III jurisdiction if the injunction sought by appellants would do nothing to remedy the injury which brings them into court — i.e., the granting of federal funds to a system allegedly in violation of Title VI.

. F.R.Civ.P. 19(b). Of course, it is our responsibility to protect the rights of absent parties under Rule 19, even when the district court had no occasion to do so. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110-11, 88 S.Ct. 733, 738, 19 L.Ed.2d 936 (1968). In particular, the rule requires the court to consider four factors in determining whether to dismiss an action on the ground that a person not before the court is an indispensable party:

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

Under the first and second prongs of this test, when the relief requested must, to satisfy plaintiffs’ claims, be in derogation of the rights of a person not before the court, that person is an indispensable party. In the present case, the essence of plaintiffs’ claims is, of course, that the North Carolina higher education system should not receive federal funds because of the anti-discrimination provisions of Title VI; it is therefore inherently prejudicial to the entitlement established by the North Carolina federal court — the determination that the North Carolina higher education system is in compliance with Title VI, so that those provisions do not bar the grant of any aid otherwise available to the system. Moreover, applying the fourth prong of the test under Rule 19(b), we note, without passing on the question of the remedies which appellants may now pursue, that at the time of the decision under review, appellants could have asserted their claims by intervening in the suit before the North Carolina district court. See supra pp. 168-170.

Judge Wright’s dissent suggests that North Carolina may have “waived” the protections of Rule 19 by failing to join the Adams plaintiffs as parties before the North Carolina federal district court. But, as we have already noted, that court had no personal jurisdiction over these plaintiffs at the time it approved the consent decree. See supra note 39. North Carolina hardly “waived” its rights by not asking the North Carolina federal district court to do something that court had no power to do.

. As we have explained, see supra note 39, we have no occasion to give collateral estoppel effect to the judgment of the North Carolina federal district court. Nor does our affirmance of the decision of the district court here, dismissing this suit, carry any implication for the question of whether the Department has complied with its statutory and constitutional responsibilities. Like District Judge Pratt, we simply do not reach this issue.