Full opinion text
OPINION EDWARD WEINFELD, District Judge. These are consolidated class actions in which plaintiffs, individually and representing all wheelchair-bound handicapped individuals, seek declaratory and injunctive relief to compel the defendants to comply with various statutes and regulations enacted by the Congress to implement the policy that the handicapped have the same right as other persons to use mass transportation facilities and services. The defendants fall into two categories, federal and local. The defendants Goldschmidt, Lutz and Walker, officials of the United States Department of Transportation (“DOT”) and the Urban Mass Transportation Administration (“UMTA”), will be collectively referred to as the “federal defendants” or, alternatively, as UMTA; the remaining defendants, the Metropolitan Transportation Authority (“MTA”), the New York City Transit Authority (“TA”), the New York City Department of Transportation (“NYCDOT”), and other authorities and agencies, their members, and members of the City government, will be collectively referred to as the “local defendants.” The federal defendants grant mass transit assistance to local communities pursuant to statutes and regulations promulgated thereunder; the local defendants are the recipients of such funds, which are granted pursuant to appropriate applications to the federal agencies. The essence of the claims against the local defendants is that they have deprived wheelchair users of mass transportation by failing to provide an accessible system for them. The essence of the claims against the federal defendants is that they have approved transit grants to the local defendants when they knew or should have known that those defendants had failed to make satisfactory “special efforts,” as required by statutes, to provide accessible transportation to the handicapped. In consequence, plaintiffs claim that the practice of the defendants prevents the integration of class members into the mainstream of society, impairs their employment and educational opportunities, and deprives them of their rights under statutes enacted for their benefit and under the Fifth and Fourteenth Amendments of the United States Constitution. The Requested Relief Plaintiffs seek declaratory and injunctive relief that would, among other matters, require this Court to appoint a special master to make recommendations to the Court with respect to (i) the determination of the amount of funds defendants failed to spend or misspent on “special efforts”; (ii) oversee consultation with plaintiffs’ class and their representatives by the defendants; (iii) monitor and report to the Court on defendants’ implementation of required plans until the system is accessible; (iv) recommend to the Court any additional orders which the special master believes necessary to enforce the rights of the plaintiffs’ class. Further, plaintiffs seek expenditure of “special efforts” funds and ask that this Court retain jurisdiction until all the requirements of the Court and the judgment to be entered herein are satisfied. There are two motions now before the Court. The local defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaints for failure to state a claim upon which relief can be granted; the federal defendants move pursuant to Rule 56 for summary judgment. While involving the same statutes and regulations, the motions present in most respects fundamentally different issues and so they will be considered separately (just as they have been briefed separately). The Statutes Federal assistance to states and localities for mass transit is generally provided under § 3 of the Urban Mass Transportation Act of 1964 (as amended) (the “UMT Act”) for discretionary capital grants, § 5 of the UMT Act for operating and capital subsidies pursuant to a federal formula, and under the mass transportation provisions of the FederabAid Highway Act of 1973 (as amended). Beginning in 1970, Congress enacted various provisions with the goal of advancing the rights of the elderly and handicapped persons in the use of public mass transportation. Thus, in 1970, Congress passed § 16 of the UMT Act, which declares it to be national policy that elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and designing of [such] facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured. Further, the section provides that all programs assisting mass transit should contain provisions implementing this policy. In 1973, Congress passed § 504 of the Rehabilitation Act of 1973, patterned after Title VI of the Civil Rights Act of 1964, which, as amended, provides that [n]o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The Federal-Aid Highway Act of 1973, as amended in 1974, provides that transportation projects funded under that Act must be planned, designed, constructed, and operated to allow effective utilization by, among others, the non-ambulatory wheelchair-bound, and the Secretary of Transportation shall not approve any program not complying with these provisions. Plaintiffs predicate their claims upon these statutes, the regulations promulgated thereunder, and also under § 315 of the Department of Transportation and Related Agencies Appropriations Act of 1975, which provides that no funds available under the Act for the fiscal year ending June 30, 1975 shall be authorized for the purchase of subway cars or buses unless they are designed to meet the needs of the elderly and handicapped. Taken together, these statutes indicate that the Congressional approach for achieving the national goal of effective and efficient transportation for all citizens is based upon federal funding and administrative oversight of local planning, The Regulations There are two basic sets of regulations promulgated in furtherance of the above statutes. The first, which became effective in 1976, are known as the “special efforts” regulations. They required the creation of a Metropolitan Planning Organization (“MPO”), which, in New York, is the Tri-State Regional Planning Commission, a defendant herein. The MPO is responsible “for carrying out the urban transportation planning process . . . and shall develop the planning work programs, transportation plan, and improvement program [(“TIP”)] . . . [and] shall be the forum for cooperative decisionmaking by principal elected officials.” The TIP is a “staged multiyear -program of transportation improvements including an annual element.” “Annual element” is defined as “a list of transportation improvement projects proposed for implementation during the first program year.” The purpose of the TIP is to identify transportation improvements for a particular program period, indicate priorities, estimate costs, and group improvements of similar urgency. The annual element of the TIP sets forth the projects being funded for that fiscal year. UMTA must determine that a program conforms to the regulations and thus certify it for federal funding. Among other things, the TIP must include satisfactory “special efforts” in planning public mass-transit facilities so that they can effectively be used by the elderly and the handicapped. Thus, the locality must demonstrate genuine, good-faith progress in planning services for disabled persons and “reasonable progress” in implementing previously approved projects. The second set of regulations was promulgated in 1979. They were necessitated when President Ford directed the Department of Health, Education and Welfare to establish guidelines for all agencies in implementing § 504 of the Rehabilitation Act. The HEW guidelines require “mainstreaming” the handicapped and permit separate treatment only when necessary. “In the context of public transportation, ‘mainstreaming’ means the physical integration of the handicapped with other members of the traveling public.” Thus, in the mass transportation area, each mode of transportation must be accessible to the handicapped. Inasmuch as the “special efforts” regulations did not require such mainstreaming, DOT was compelled to promulgate new regulations. These were issued pursuant mainly to § 504 of the Rehabilitation Act and also pursuant to § 16 of the UMT Act and § 165(b) of the Federal-Aid Highway Act. They are known as the “504 regulations” and mandate, with certain exceptions, that transportation systems be made accessible by July 2, 1982. A program is deemed to have achieved accessibility “when viewed in the entirety, it is accessible to handicapped persons.” The regulations establish various criteria for determining when the different kinds of mass transit shall be deemed to have achieved “program accessibility.” Thus, a fixed-route bus system has achieved “program accessibility” when it is accessible to handicapped persons who can use steps and when the system, viewed in its entirety, is accessible to wheelchair users; with respect to the latter aspect, this means that “at least one-half of the peak-hour bus service must be accessible and accessible buses must be used before inaccessible buses during off-peak hours.” While the deadline to achieve this goal is July 2, 1982, extraordinary structural changes to, or replacement of, existing equipment need not be accomplished for ten years. Similarly, subways must achieve accessibility by July 2, 1982, but extraordinary structural changes may be made over a period of thirty years, provided that steady progress toward accessibility be made during that time. With respect to subway station accessibility, all stations must be accessible to handicapped persons who use steps, and “key” stations (those with heavy usage, at transfer and end points, and serving major activity centers like schools and health-care facilities) must be accessible to wheelchair users. If full program accessibility is not achieved by July 2, 1982, then there must be assurance of interim program accessibility until full accessibility is achieved. The standards for interim accessibility are to be developed in cooperation with a local advisory group of the handicapped, and during the interim period states and localities must spend two percent of the funds received pursuant to § 5 of the UMT Act on interim transportation. The regulations also provide for para-transit systems, which are “those forms of collective passenger transportation which provide shared-ride service to the general public or special categories of users on a regular basis and which do not necessarily operate on fixed schedules or over prescribed routes.” Paratransit systems have the same program accessibility requirements as other components of public transportation. Plaintiffs’ Claims Plaintiffs, as already noted, allege violations of the above statutes and regulations and also of the Federal Constitution. In broad sweep, they allege that although no special efforts were made between 1970 and 1976 by the local defendants to plan and design accessible public mass transportation in New York City, the federal defendants continued to fund the programs of the local defendants. However, their charges focus primarily upon alleged “special efforts” shortcomings in specific fiscal years. An outline of plaintiffs’ claims with respect to the TIP of each fiscal year is necessary in order to understand the rights which they claim were violated and the defendants’ motions challenging the asserted claims. Fiscal Year 1977-78 The TIP for this fiscal year contemplated the purchase of one hundred minibuses to be equipped with level-change devices and safety and accessibility features for wheelchair users. The buses were to be run on fixed routes selected by a special task force. The project was budgeted at $5,000,000. Plaintiffs charge that although the minibus project was to be used by able-bodied as well as handicapped persons, the local defendants attributed the entire cost, not just the accessibility features, to “special efforts.” They further charge that the federal defendants approved the project not only in disregard of the recommendations of the disabled community but also upon an erroneous determination that the minibus program satisfied the special-efforts requirements based upon a finding that the local defendants had designed and planned an urban mass transportation system which assured accessibility to handicapped persons, including wheelchair users. The plaintiffs further allege that the federal defendants, contrary to a long-standing practice, in this instance allowed the local defendants to allocate the entire cost of the minibuses against their special-efforts obligations. The only bid for the minibus project was $8,750,000, which was 75% higher than the $5,000,000 budgeted. Thus, in May 1980, UMTA permitted the local defendants to switch the funds previously allotted to the minibus project to the purchase and installation of hydraulic wheelchair lifts on 200 of 837 Grumman Flexible buses previously ordered in March 1979 and the purchase of seven additional buses equipped with lifts. UMTA deemed this amendment to satisfy fully the special-efforts requirements for 1977-78. Plaintiffs, however, press their original claim; they allege that defendants have failed to comply with their special-efforts obligations with respect to the funds made available, although not used, for the aborted minibus program. They charge that the more than two-and-a-half year delay that ensued between the approval of the minibus project and approval of the wheelchair-lift substitution, was the result of ineptitude and poor planning by the local defendants; that when the switch was made for the installation of the 200 hydraulic lifts on previously ordered buses and the purchase of seven new buses, the handicapped groups were not consulted; that in the instance of the seven new buses, the full cost thereof was credited to “special efforts” although the major portion of the cost was not for the benefit of the elderly or handicapped. The ultimate grievance is that although $5,000,000 has been budgeted for “special efforts” within the above fiscal period, the earliest that accessible transportation can be expected is sometime in 1981. Fiscal Year 1978-79 The major special-effort feature of the annual element of this fiscal year’s TIP was a paratransit service system, a supplement to public mass transit that provides door-to-door transportation using taxi services or vans. After a preliminary review by UMTA in the summer of 1978 indicated that the City was not demonstrating sufficient special efforts, Mayor Koch on November 1, 1978 issued a special directive to the NYCDOT to develop and implement a paratransit system to meet the special-efforts requirements. The paratransit program was to operate on a subscription basis, upon advance reservation, and also on demand. The system would function for only seventeen hours per day in contrast to the City’s mass transit system, which requires no reservation and operates twenty-four hours per day. The program was contemplated as part of an accessible multi-modal transportation system for the entire City. The concept was to provide “high quality coordinated transportation services.” Largely in reliance on the Koch directive, UMTA approved the TIP for this fiscal year with conditions, including a requirement that the local defendants implement the paratransit program by January 1, 1980. The plaintiffs charge that with the exception of an implementation schedule, the local defendants have failed to meet the conditions of approval; that the schedule failed to provide for prompt initiation of “13(c) negotiations” with labor unions as required by 49 U.S.C. § 1609; that UMTA failed to monitor closely the local defendants’ progress in implementation of the para-transit plan; that the local defendants have not only failed to implement the plan on the scheduled dates but that no new implementation date has been set and no funds have as yet been expended for the purchase of paratransit services or equipment; and that the entire plan is inadequate since it is based upon an incorrect estimate as to the population and trip demand of handicapped persons in New York City. Fiscal Year 1979-80 The major special-efforts component of this year’s TIP was the same paratransit system as in the last year’s. Although implementation of the program had been substantially delayed, UMTA determined that there was sufficient evidence of reasonable progress to find that the special-efforts requirements were being satisfied. This was based in part on the role of the paratransit system as the part of the entire highly coordinated system that tied the special-efforts program together. Plaintiffs, in addition to continuing their fundamental objections to the paratransit system, contended that UMTA approved it as satisfying the special-efforts requirements though there was no tangible evidence of progress. Not only had no funds from the previous year actually been spent, plaintiffs charge, but, at the time the 1979-80 TIP was approved, NYCDOT had already reduced the number of vehicles to be in the paratransit program without informing UMTA. Fiscal Year 1980-81 The TIP for this fiscal year, approved only two months after the prior year’s, is taken almost verbatim from the previous year’s. Thus, UMTA again justified approval of the paratransit system toward the special-efforts requirements on the basis of its importance, delays beyond the City’s control, and the Mayor’s stated commitment to the system. Moreover, UMTA noted that the City’s order of 532 new accessible buses, the lifts of which cost $5,300,000, was enough to satisfy the special-efforts requirement. Plaintiffs press the same objections to the system as before, and furthermore criticize the TIP as demonstrating that UMTA had not seriously reexamined the City’s efforts in special-efforts planning. Local Defendants’ Motion to Dismiss the Complaints The local defendants, in urging dismissal of plaintiffs’ claims, contend in general that, under their prayer for relief, plaintiffs seek a restructuring of New York City’s vast transit system under court supervision and argue that the statutes relied upon either do not provide them with a private right of action to warrant the requested relief, or else do not permit the kind of relief sought. § 16 of the UMT Act First, defendants contend that § 16 of the Urban Mass Transportation Act of 1964 does not endow plaintiffs with a private right of action to enforce compliance with its provisions. The essence of their argument is that the declaration of national policy set forth in § 16 that elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services, does not create any duty running directly to the handicapped, but that it does specifically impose a duty upon the Secretary of Transportation to execute a federal funding program in order to effectuate the declared policy. They argue that the clear thrust of the statute is directed toward those who administer the program to ensure the implementation of the national goal, thereby negating any congressional intent to confer an independent private right of action in favor of any individual intended to be benefitted by the program. With the statute and its history here silent on the issue, the Court is required to decide whether Congress intended to create a federal right of action in favor of the handicapped, the class of individuals which was the object of its concern. This is a matter of statutory construction. The mere fact that, as plaintiffs allege, and for the purposes of this motion must be accepted, the local and federal defendants failed to discharge their obligations under the Act and thereby deprived plaintiffs of its intended benefits “does not automatically give rise to a private cause of action in favor of [them].” On the other hand, the failure of Congress expressly to specify an intent to create a private action “is not inconsistent with an intent on its part to have such a remedy available to the persons benefited by its legislation.” The criteria for implying a private right of action where Congress has failed to provide expressly for one are enumerated in Cort v. Ash: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted” . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law ... so that it would be inappropriate to infer a cause of action based solely on federal law? However, recent decisions of the Supreme Court have east some doubt on the continued vitality of these four specifics, though the Court still adheres to this approach. The ultimate basic inquiry is to divine the intent of Congress to create the claimed private right of action. Analysis starts with the language of the statute itself. There can be no doubt that the declaration contained therein makes it clear that the statute was intended for the benefit of the handicapped and elderly in the use of mass transportation, and that plaintiffs are members of the benefitted class. But that does not end inquiry; rather, it leads to the ultimate question whether Congress intended that it be enforced through private litigation. The legislative history itself furnishes no indication, explicit or implicit, with respect to creation or denial of a private cause of action in favor of those the Act intended to benefit where it is charged public officials failed to effectuate implementing programs. This is not surprising since “the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question.” Further, § 16 does not parallel a prior legislative act which may have previously been the subject of court rulings upholding a private right of action and of which Congress was aware. Neither was there any previous determination by agencies entrusted with carrying out an act which recognized a private right (and so also presumably within the knowledge of the Congress that passed § 16) such that the Court can infer that Congress intended to extend the private right to § 16. We need not tarry long on the factor as to whether the cause of action is one traditionally relegated to the states. To be sure, the operation of bus lines, subway systems, and other forms of local transportation originally were in the main the function of private enterprise, but, in modern years, they have been undertaken in large measure by local, state, and regional bodies in the public interest. The rapidly expanding metropolitan and other urban areas which generally cross the boundary lines of local jurisdictions and extend interstate, and the deterioration or inadequate provision of transportation facilities, soon led to federal aid programs like those provided for by the UMT Act. With state, regional, and local areas dependent upon capital and operating grants and subsidies from the federal government, it can hardly be urged, in light of the multiple regulations that arise thereunder, that the function at issue is one traditionally relegated to the states. Thus, there remains the factor, is it consistent with the underlying purpose of the legislation to imply a private right of action in favor of the plaintiffs? To qualify for federal financial aid, local transportation systems must meet complex requirements under regulations involving difficult administrative and executive decisions. Thus the local authorities are required to submit a transportation plan “consistent with the area’s comprehensive long-range land use plan, urban development objectives, and the area’s overall social, economic, environmental, system performance, and energy goals and objectives.” On the other hand, federal agencies before granting financial assistance determine whether the local agencies satisfy statutory and regulatory requirements. With such complex matters involving an interrelated maze of governmental decisions at many levels, some of which plaintiffs here attack, implying a private cause of action is not consistent with the underlying purpose of the legislative scheme, would upset the delicate balance of administrative and local decisionmaking, and would risk the possibility of inconsistent results in different areas of the country. Here, for example, the plaintiffs contend that the special effort for the fiscal year 1977-78, the minibus project, was aborted because a bid exceeded the authorized amount of $5,000,000, and further that the local agencies improperly charged, and the federal agencies allowed contrary to a longstanding policy, the allocation of the funds for a purpose that did not constitute a special effort. Did Congress intend that such a claim give rise to a private cause of action to force the agencies to reallocate the funds or to direct their proper attribution? Did Congress intend that the Court intervene at the instance of a private litigant to remedy the alleged grievance? As one court has asked, What must be done to provide handicapped persons with the same right to utilize mass transportation facilities as other persons? Does each bus have to have special capacity? Must each seat on each bus be removable? Must the bus routes be changed to provide stops at all hospitals, therapy centers and nursing homes? Is it required that buses be able to accommodate bedridden persons? Is it discriminatory to answer any of these questions in the negative? Will the operation of hydraulic lifts on buses involve stigmatizing effects on the persons who use them? . . . These few questions illustrate the enormous difficulties which would be encountered by any attempt to ... [decide] through the judicial process. Those difficulties would be compounded by the fact that these are national laws and national programs. Conflicting or even different interpretations in different courts within the federal judicial structure would result in a paralysis . .. until the matter finally reached the Supreme Court. The delay attendant upon that process may not only disadvantage the handicapped, it could halt or hinder the country’s entire mass transportation system. Thus, if, as plaintiffs claim, either or both the federal and local agencies were derelict in failing to carry out the purposes of the legislative act insofar as they were intended for the benefit of this group of plaintiffs, responsibility for its proper enforcement and administration rests with the executive. On this aspect of the motion, it is not without interest that plaintiffs, in opposition to the federal defendants’ motion for summary judgment discussed hereafter, challenge all the funding decisions by the federal agencies from 1970 to the present and urge that, under a de novo standard of review, the reasonableness of those agencies’ decisions, based upon all the surrounding circumstances, are issues to be decided by this Court. The Court holds that § 16 of the UMT Act does not create a private right of action in favor of plaintiffs and, accordingly, this branch of their complaints is dismissed. § 504 The local defendants next contend that plaintiffs do not state a claim for which relief can be granted under § 504 of the Rehabilitation Act of 1973, which provides that “[n]o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.” They urge that that section is a nondiscrimination statute that does not mandate affirmafive action of the kind sought by plaintiffs. The starting point in this inquiry is Southeastern Community College v. Davis, the only decision of the Supreme Court interpreting § 504. There, a deaf woman applied for admission to a college nursing program which received federal funds. After evaluation by an audiologist, the school rejected her application because it claimed her deafness would prevent her from performing in the clinical program and also she would not be able to perform certain functions required of a nurse. Davis argued that the school should not have taken her handicap into consideration at all in considering her application — that is, in determining if she was “otherwise qualified”— and also that it should have restructured its program so that her deafness would not preclude her participation. The Supreme Court held that § 504 simply says that the “mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.” Thus, it held that “otherwise qualified” means that the person is able to meet all the requirements of a program despite a handicap. A program is not required by § 504 to take substantial affirmative action to remove barriers to the handicapped; the statute does not require a “fundamental alteration in the nature of the program.” If governing regulations “were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than qualify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.” The Supreme Court did not impose an absolute ban on affirmative action; indeed, the Court recognized that the line between a lawful refusal to take some affirmative action and illegal discrimination might not always be easy to draw, and that merely adhering to the status quo might in some cases arbitrarily deprive an “otherwise qualified” handicapped person of a chance to participate. However, a program would not be required to lower its standards substantially or incur “undue financial and administrative burdens.” Courts since Davis must thus consider the kind of action sought to remedy alleged discrimination against the handicapped to determine if it is permitted by § 504. The Fifth Circuit Court of Appeals, in two opinions since Davis, has provided relief to plaintiffs where the remedy would not require substantial adjustments in the existing programs and would not impose undue financial burdens. The only post-Davis case involving mass transportation and considering Davis’ implications is American Public Transit Association v. Lewis (“APTA”), in which the District of Columbia Court of Appeals invalidated the 1979 DOT regulations insofar as they were promulgated pursuant to § 504. After tracing at great length the history of the regulations and their evolution from mandating “special efforts” to “accessibility,” the Court of Appeals held that the regulations were an invalid implementation of § 504 because they “require extensive modifications of existing systems and impose extremely heavy financial burdens on local transit authorities.” The court continued: Every new bus or subway car must be accessible to wheelchairs regardless of cost; elevators and other modifications must be added to existing subways. The regulations themselves recognize that some changes will be “extraordinarily expensive”; such changes are nevertheless required, though they may be phased in over periods of time longer than the three-year limit otherwise applicable.... These are the kind of burdensome modifications that the Davis Court held to be beyond the scope of section 504. Thus, although the Court of Appeals recognized that “at some point a transit system’s refusal to take modest, affirmative steps to accommodate handicapped persons might well violate § 504,” the current regulations simply imposed too massive an obligation upon recipients of federal funds and thus violated § 504 as interpreted in Davis. This view applies with equal force to the case at bar. Plaintiffs, as noted earlier, are seeking massive relief involving extra-ordinary expenditures; they seek to compel compliance with the regulations in all respects. Just as the APTA court viewed the regulations as violative of § 504 because of the affirmative obligations they impose on localities, so, too, does this Court hold that the relief requested in this action would constitute the “kind of burdensome modifications that the Davis Court held to be beyond the scope of section 504.” Although it may be true that “the application of section 504 to public transportation systems raises some questions that are significantly different from those considered by the Supreme Court in the higher education setting in ... Davis . . . [and that it may be] much more difficult to avoid ‘discrimination’ without taking some kind of ‘affirmative action’ ” in the public transportation context, nevertheless there is no mistaking the clear overarching principle in Davis: § 504 does not require massive expenditures. Plaintiffs, if they were to prevail, would compel the local defendants to expend huge resources over the next several decades which would fundamentally alter many transportation services. There is no escaping the fact that plaintiffs in this law suit seek a major overhauling of the transit system in their purpose to compel implementation of programs for the handicapped. However worthy their aims, § 504 does not permit this kind of massive relief. Plaintiffs’ comment that the APTA decision does not change the basic posture of this case because it only invalidates the regulations insofar as § 504 served as their statutory basis and because plaintiffs rely on other sources to establish liability, overlooks the import of the APTA decision. Regardless of what APTA has done to the regulations, it has clearly held that § 504 does not permit the kind of massive modifications that the regulations require and that plaintiffs seek to compel in this action. That plaintiffs may also base their claims for relief on other statutes, regulations, and theories, does not alter the fact that § 504 cannot serve as a basis for the relief requested. 42 U.S.C. § 1983 The local defendants further contend that plaintiffs do not state a claim for relief under 42 U.S.C. § 1983. Last year, the Supreme Court explicitly held that § 1983 may be used as a vehicle to redress deprivation of rights secured by federal statutory as well as constitutional law. Plaintiffs thus contend that, even if there is no private right of action under the various statutes here involved, § 1983 still authorizes this suit. Although the holding in Maine v. Thiboutot is somewhat broad, its force is attenuated by two decisions of the Supreme Court this past Term. Those decisions, Pennhurst State School and Hospital v. Halderman and Middlesex County Sewerage Authority v. National Sea Clammers Association establish two key exceptions to the Thiboutot rule. Thus, § 1983 is unavailable as a remedy for statutory violations if (1) Congress has foreclosed private enforcement of the statute in the enactment itself, for example by establishing comprehensive remedial devices within the substantive statute, or if (2) that statute does not create enforceable “rights.” The Court holds that none of the statutes here relied upon by plaintiffs creates a substantive right sufficient to invoke § 1983 with the exception of § 504. As to § 504, however, the substantive right, as already noted, is limited in that affirmative efforts involving substantial and at times fiscally prohibitive sums are not required. Because § 1983 itself creates no substantive rights, and it thus adds nothing of a substantive nature to the right created by § 504, it follows that § 1983 cannot alter plaintiffs’ position insofar as § 504 is concerned. There is no evidence that Congress, in passing the UMT Act, intended to create rights and obligations enforceable through § 1983. “Quite the contrary, the Act’s language and structure demonstrate that it is a mere federal-state funding statute.” The purposes of the Act are, essentially, to “assist in the development of improved mass transportation facilities, equipment, techniques, and methods, ... to encourage the planning and establishment of areawide urban mass transportation systems needed for economical and desirable urban development, . . . [and] to provide assistance to State and local governments and their instrumentalities in financing such systems.” The various sections of the Act, pursuant to these overall purposes, provide in detail for different grant programs and long-range study. Section 16 of the Act was added in 1970 as a floor amendment; it did not appear in either the House or Senate committee reports. It was offered because of “the importance of establishing a national policy to aid these elderly and handicapped persons so that they might have the same equal right of access to public transportation facilities that other Americans have.” It was adopted with little discussion in the House and none in the Senate. Indeed, it was presented in the Senate as part of an entire slate of amendments to the Act, most of which involved funding programs and none of which merited discussion. Thus, to the extent that it is possible to fathom any congressional intent, Congress did not intend by § 16 to create a right enforceable by § 1983. In determining if the statute creates a right, the Court must be guided by the entire law and not just a single sentence. The UMT Act is designed to “assist” and “encourage” states and localities to develop various mass transportation programs via federal grants. And § 16 itself, contrary to plaintiffs’ view, does not unequivocally create a substantive right. Rather, it merely declares a “national policy” of equal access to mass transportation facilities for the elderly and handicapped and instructs that “special efforts” should be used to that end. Finally, it provides that all federal programs assisting in the area of mass transportation “should” implement this policy. Moreover, the section was meant to continue the existing general policy of removing barriers to the elderly and handicapped. Thus, “nothing suggests that Congress intended the Act to be something other than a typical funding statute.” The conclusion that § 16 of the Act does not create a substantive right enforceable through § 1983 finds support in the Supreme Court’s recent decision in Pennhurst There, the Court held, among other things, that § 6010 of the Developmental^ Disabled Assistance and Bill of Rights Act of 1975, the “bill of rights” of the mentally retarded, did not create substantive rights'. The Court found that the statute was merely a funding statute whose purpose was to assist and encourage improving care and treatment of the mentally retarded by providing federal grants to support programs. It did not matter that § 6010 was couched in terms of “rights”- — for example, that it states that “[pjersons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.” Indeed, as Justice Blackmun noted in his concurring opinion, this “bill of rights” could be viewed by some as “politically self-serving but essentially meaningless language.” In holding that the “bill of rights” does not create any substantive rights, the Court took special note that, unlike other provisions of the statute, § 6010 did not expressly condition receipt of funds on compliance; further, the legislative history demonstrated that § 6010 was a reaffirmation of existing rights, provides direction for improving the conditions of the mentally retarded, and establishes a clear federal policy on the rights of the mentally retarded. In the context of the entire statute, the Court found at most that § 6010 represented “general statements of federal policy, not newly created legal duties.” The same analysis pertains to § 16 of the UMT Act. It does not create a right enforceable through § 1983. The same result obtains with respect to the remaining statutes relied upon by plaintiffs, and extended discussion is unnecessary. Section 165(b) of the Federal-Aid Highway Act of 1973 directs that the Secretary of Transportation shall require that programs receiving federal funding must be constructed to allow effective use by the elderly and handicapped. As with § 16 of the UMT Act, this provision is merely one part of a massive funding statute; it identifies an area in which policy dictates that federally funded construction should mandate various kinds of benefits for the elderly and handicapped. To reinforce this view, the legislative history indicates that Congress recognized that it was proper to use funds in the highway trust fund for mass transportation and it thus directed a federal-state evaluation of needs and capabilities of localities with respect to mass transportation. The focus was not on creating rights in the elderly and handicapped. Finally, when Congress amended the section in 1974, it added a provision which is virtually identical to § 16 of the UMT Act, which, as noted previously, creates no substantive rights. Thus, the Federal-Aid Highway Act does not create rights enforceable through § 1983. Finally, the Department of Transportation and Related Agencies Appropriation Act of 1975 creates no rights. This is simply a prohibition directed at the Secretary of Transportation against the expenditure of certain funds for the purchase of mass transportation equipment for the fiscal year ending June 30, 1975 unless it is designed to meet the needs of the elderly and handicapped. This is nothing but a directive to the Secretary and it cannot seriously be contended that this was ever meant to create substantive rights. Nor can plaintiffs seek redress of alleged violations of their right to equal protection of the laws under the Federal Constitution via § 1983, for no constitutional right is at stake in this action. No fundamental right is involved; wheelchair users are not a suspect class. Thus, the actions of local officials are constitutionally valid as long as there is a rational basis for the challenged actions and classifications. Plaintiffs contend that the local defendants purposefully and invidiously discriminated against wheelchair users. The allegations of the complaint do not sustain this charge. Paragraph 126 of the Disabled in Action complaint states in purely conclusory terms that the defendants have intentionally excluded wheelchair users from the transit system. However, plaintiffs do not allege any facts to show defendants’ acts were motivated even in part by the desire to discriminate against wheelchair users. For example, plaintiffs allege that the local defendants ordered 837 inaccessible buses just months before the requirement to buy only accessible buses was to go into effect; there is no allegation that this purchase was motivated by a desire to restrict access by wheelchair users and not to reduce public expenditures by purchasing less expensive buses. Similarly, allegations with respect to the failure to implement the paratransit program - and the minibus project do not suggest that local officials had any improper motivations guiding their decisions. In the circumstances, plaintiffs’ conclusory allegation that the local defendants have invidiously discriminated against them and their class cannot survive a motion to dismiss. There is a clear rational basis for the acts of the local defendants based upon the face of the complaints, and this is all the Constitution requires in this case. As has been noted elsewhere, the Constitution imposes no greater affirmative duty on states and localities than do the substantive statutes here at issue. Thus, this branch of the complaints is dismissed. The Regulations The local defendants finally contend that plaintiffs do not state a claim for relief directly under the various regulations. This issue need not detain the Court long. Insofar as the regulations relied upon were promulgated pursuant to § 504, they cannot exceed the substantive scope of that statute, which, as noted earlier, does not require the kind of affirmative action sought in this action. Indeed, the District of Columbia Court of Appeals struck down these regulations for just that reason. Insofar as the regulations plaintiffs rely upon were promulgated pursuant to § 16 of the UMT Act and § 165(b) of the Federal-Aid Highway Act, as to which there is no private right of action, plaintiffs similarly have no right of action under the regulations, for the regulations cannot give to plaintiffs more than the statute allows. Accordingly, the complaints as to the local defendants are dismissed. Federal Defendants’ Motion for Summary Judgment The thrust of plaintiffs’ claims against the federal defendants is that the latter have violated the various statutes and regulations and the Federal Constitution by continuing to approve grants to the local defendants despite the alleged failure to provide accessible transportation and by failing to sanction the local defendants for the alleged violation of the regulations. The federal defendants, in moving for summary judgment, contend that they have fully complied with all applicable statutory and regulatory requirements and that all decisions of the administrative agencies implementing the statutes and regulations were reasonably related to their objectives; that is, they were proper, rational, and not arbitrary or capricious but were in furtherance of the objectives of the statutes and regulations on which plaintiffs rely. Scope of Review Initially, the Court considers the appropriate standard of review. The federal defendants contend that their actions can be measured only by the “arbitrary and capricious” standard of the Administrative Procedure Act, while the plaintiffs argue that the actions of the federal defendants are subject to de novo review by this Court upon a full trial on the merits. The plaintiffs contend that, upon such a full trial, this Court is empowered to review the entire process by which the local defendants developed their special-efforts plans and TIPs and by which the federal defendants considered and decided to approve the plans. To accept plaintiffs’ thesis would at once constitute this Court as an executive branch of government with the power to make policy decisions that are within the province of the executive under congressional mandate; moreover, it is contrary to the applicable statutory standard. The appropriate standard of review in the context of informal administrative proceedings like those at issue here is set forth in 5 U.S.C. § 706(2)(A): “The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Although the agency’s actions are presumed to be regular, they are subject to “probing, in-depth review.” Thus, the Court considers only the administrative record upon which the agency acted; it must determine if the agency considered all the relevant factors under the statutes and regulations and whether there has been a clear error of judgment. In doing so, it may not substitute its judgment for that of the agency; rather, the Court simply inquires to see if the agency’s decision is rational — the result of reasoned decisionmaking. The inquiry is whether the Secretary followed the required procedures in discharging its functions. If the Court were to review the merits of the agency’s conclusions, it would inappropriately involve itself in “complex technical considerations” which are the province of the administrative agency. In the informal administrative setting, however, what constitutes the administrative record to be reviewed may present a disputed issue of fact; that is the case here. This is particularly important since “[r]eview must be based on the whole record even when the judgment is one of policy, except that findings of fact such as would be required in an adjudicatory proceeding or in a formal ‘on the record’ hearing for rulemaking need not be made.” Plaintiffs contend that the record before the Court is incomplete, and they request that the Court defer consideration of this motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure and allow them to take discovery to complete the record. However, the Court holds that the administrative record now before the Court is that upon which the agency acted and is adequate to enable the Court to determine the path that the agency has followed in making its decisions and the basis on which those decisions were made. The federal defendants have submitted to the Court contemporaneous documents concerning the various actions which are the subject of plaintiff’s attack. These documents and supporting memoranda, which are not affidavits prepared specifically for this litigation, are adequate to enable the Court to perform its limited function to determine if the agency took all relevant considerations into account, as will be discussed hereafter. Normally, if the proffered record is inadequate, the remedy is for the Court to require the agency, through affidavits or live testimony, to explain the record but not to augment it. However, if there are contemporaneous records, as here, the validity of the actions of the agency will stand or fall on those. In pressing their contention that the administrative record is incomplete, however, plaintiffs rely heavily on an internal UMTA memorandum of one Ron Posthuma, which they claim supplies information that went into the final decisions but which was not reflected in the official statements included in the administrative record submitted to this Court. The Court does not agree with this contention. Administrative agencies, like other entities, have staffs which conduct research and analyze data with a view to guiding the ultimate decisionmakers in making policy judgments. Each of these employees has his own perspective and personal point of view. It is not unusual that lower echelon employees, each positive of the wisdom of his or her own opinion, make conflicting recommendations or reports to the higher authorities. However, the executive of the agency is the one charged with making decisions, and it is the final decision, and the facts and considerations directly relied upon by the ultimate decision-maker in making that decision, that are the subject of review in the district court. Here, the federal defendants have provided this Court with contemporaneous records upon which the decisions were made. Only in rare situations, not present in this case, will the district court go into the “mental deliberations” of members of the agency. Thus, for the reasons that follow, the Court is satisfied that the documents offered by the federal defendants constitute the record upon which their actions were grounded and are sufficient to enable it to pass upon the validity of their actions. That review, as noted, is limited; because this Court “does not sit as a super-agency empowered to substitute its scientific expertise” for that of the agency, it may not pass on the wisdom of the federal defendants’ decisions, just the procedural sufficiency. The Court now turns to plaintiffs’ contentions. Special Efforts from 1970 to 1976 At the outset, plaintiffs claim that the federal defendants continued to fund the mass transportation programs of the local defendants from 1970, when § 16 of the UMT Act was passed, through 1976, when the first regulations became effective, though they knew or should have known that the local defendants had failed to make any “special efforts” as described in the statute. The federal defendants contend, however, that, in the absence of regulations, any special efforts during this period are of no more than historic interest. The statutes upon which plaintiffs rely do not themselves contain any timetable for implementation of special efforts. Instead, they require a gradual effort toward achieving the statutory goals and not immediate access. The court in Vanko v. Finley noted that, while universal accessibility was the goal of § 16 of the UMT Act, “Congress was certainly cognizant of the technological and economic problems which immediate requirement of universal accessibility would create.” UMTA during this period was researching and developing projects with a view to providing the elderly and handicapped with more access to transportation systems. In the absence of any regulations during this time, and with the statutes themselves providing no explicit guidance on what action was required of both UMTA and local recipients of funding, it cannot be said that the federal defendants’ actions during the 1970-76, pre-regulatory period were arbitrary or capricious. Minibus Project The major special effort programmed for the fiscal year 1977-78 was the minibus project, which consisted of the purchase and implementation of one hundred minibuses equipped with wheelchair lifts to be operated on special, fixed routes chosen in consultation with the Task Force on Public Transportation for Elderly and Handicapped Persons and its advisory committee on the handicapped. The minibuses would be available to the general public as well as the handicapped. Plaintiffs challenge the federal defendants’ decision to approve this project as satisfying the special-efforts requirement for that fiscal year on the grounds that it would be inadequate, it was opposed by the handicapped community, the full capital cost was credited to special efforts although the minibuses would be fully available to the general public as well as the handicapped, and the TA did not meet the federal defendants’ condition that it ensure priority for wheelchair users on the minibuses. As to the cost, the budget for the project was $5,000,000, of which the federal defendants’ share was $4,000,000, which was over five percent of the total § 5 funds received by the local defendants that year. Plaintiffs contend, however, that five percent was the minimum permissible expenditure to qualify for special efforts, and if only the part of the minibus project which would inure to the special benefit of the handicapped were counted to the special-efforts requirement, the special efforts would have been well under five percent. UMTA approved the minibus project as part of the 1977 — 78 fiscal year TIP, albeit with certain reservations. Thus, UMTA expressed concern that the limited amount of service would be inadequate if demand was substantial, especially in light of the availability of the minibuses to the general public as well. To qualify as a special effort, then, the TA would have to adopt controls to ensure priority to wheelchair users and guarantee availability of space (perhaps by interspersing nonaccessible buses on the routes to provide for the general public). UMTA recognized that, normally, only the cost of wheelchair lifts may count toward special efforts with respect to fixed-route buses, but in this instance it counted the full cost of the buses thereto with the understanding that the buses would run on special routes to meet the needs of wheelchair users and which would be designed in consultation with them. Moreover, it understood that the TA would monitor the system to ensure proper use. UMTA expressly warned that future operating costs would be prorated and only that portion corresponding to the use of the handicapped would count toward the special-efforts requirement. In later approving the formal grant application of the local defendants for the minibus project, UMTA noted that the Task Force had developed a plan for increased accessibility. Under this plan there would be “surveying of existing services in the City, identification of target populations, establishment of priorities and identification of transportation projects which could be undertaken.” Moreover, UMTA recognized that the minibus project was necessarily only a beginning and could not by itself provide accessible transportation for all potential users; thus, it noted with approval the continuing study of para-transit services which would provide door-to-door service. The record reveals UMTA’s decisions on the minibus project and the reasons therefor. It is clear that UMTA understood the nature of the project and its potential limitations; thus, it required of the local defendants that they take steps to ensure that the service would in actuality provide the promised service to the handicapped. The full cost of the project was credited to special efforts although the system had fixed routes because the routes were to be designed to meet the special needs of the handicapped. The regulations do not require that a recipient of funding spend at least five percent of its § 5 funds on projects for the handicapped and elderly to satisfy the special-efforts requirement; therefore, even if plaintiffs are correct that UMTA improperly credited the full cost of the project to special efforts and that the cost of the wheelchair lifts alone would not have met the five percent minimum, there would still be no basis for upsetting the finding that the special-efforts requirement was met by the local defendants. The provision of the regulations on which plaintiffs rely to support an absolute five percent minimum is very clear that it is an “example[ ] of a level of effort that will satisfy the ‘special efforts’ requirement. [The examples] are not regulatory standards or mínimums, neither do they exhaust all valid approaches. They are meant to guide the development of local public transportation opportunities for wheelchair users . . . that in fact meet a significant fraction of the identified need within a reasonable time.” In sum, the record demonstrates that the decisions of the federal defendants with respect to this matter showed concerned interest and understanding of the problems. They approved the minibus project although they had reservations because they understood that it was an important and significant first step in the local defendants’ efforts to provide accessible transportation for the handicapped. The regulations do not require immediate accessibility, nor do they provide rigid requirements on the substance of various projects that are designed to meet the special-efforts requirement. The federal defendants’ actions in approving the minibus project cannot be said to be arbitrary or capricious or without basis in law. Indeed, plaintiffs’ complaint about the approval of the minibus project is to a large extent beside the point. That project was abandoned when the only bid received was seventy-five percent above the budgeted amount and it was determined that a re-bid would be fruitless. Thus, in 1980 UMTA approved the local defendants’ request to switch the special-efforts funds allotted to the minibus project to the purchase of two hundred wheelchair lifts on the new Grumman Flxible buses and also the purchase of seven new accessible buses. This switch in the use of funds was deemed by UMTA to satisfy the special-efforts requirement for 1977-78, the fiscal year in which the minibus project was approved. Thus, even if the minibus project were fundamentally flawed and improperly approved over the opposition of the handicapped community, it was abandoned for the legitimate re