41 F.3d 1551 (D.C. Cir. 1994), 93-5080, Dorsey v. United States Dept. of Labor

Docket Nº:93-5080.
Citation:41 F.3d 1551
Party Name:James DORSEY, Appellant, v. UNITED STATES DEPARTMENT OF LABOR, et al., Appellees.
Case Date:December 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1551

41 F.3d 1551 (D.C. Cir. 1994)

James DORSEY, Appellant,

v.

UNITED STATES DEPARTMENT OF LABOR, et al., Appellees.

No. 93-5080.

United States Court of Appeals, District of Columbia Circuit

December 16, 1994

Argued Oct. 12, 1994.

Page 1552

Ross Lipman, New York City, argued the cause for appellant. With him on the briefs were Mark H. Duesenberg, Washington, DC, and Ella L. Roberts, Washington, DC.

Deborah Ruth Kant, Atty., Dept. of Justice, Washington, DC, argued the cause for appellees. With her on the brief were Frank W. Hunger, Asst. Atty. Gen., Eric H. Holder, Jr., U.S. Atty., and Barbara C. Biddle, Atty., Dept. of Justice, Washington, DC.

Before: EDWARDS, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The issue in this appeal from the judgment of the district court, dismissing James Dorsey's suit against the Department of Labor, its Secretary, the Office of Job Corps, and its Director, is whether there is a private right of action for monetary damages against the federal government for violating Sec. 504 of the Rehabilitation Act of 1973, as amended in 1978, 29 U.S.C. Sec. 794. The Ninth Circuit, in Doe v. Attorney General, 941 F.2d 780 (9th Cir.1990), decided this issue against the government. We reach the opposite conclusion on the ground that the government has not

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waived its sovereign immunity from such suits.

Dorsey alleged that he was handicapped and that, in violation of Sec. 504, the defendants had unlawfully discriminated against him on the basis of his handicap during his participation in the Job Corps. Administered by the Department of Labor, the Job Corps provides training and education for individuals between the ages of 14 and 22 who are "economically disadvantaged" and who were living in "an environment so characterized by cultural deprivation, a disruptive homelife, or other disorienting conditions as to substantially impair prospects for successful participation in other programs providing needed training, education or assistance." 29 U.S.C. Sec. 1693(2) & (3). According to Dorsey, the "vast majority of the Job Corps facilities around the country are residential. In these facilities, Job Corps participants live in a dormitory environment and are under the 24-hour supervision of Job Corps personnel."

Dorsey joined the Job Corps at the residential center in Dayton, Ohio, in August 1987. After enrolling, he submitted to a mandatory medical examination in which he tested positive for HIV antibodies. For this reason and pursuant to its policy at the time, the Job Corps expelled Dorsey from the program in September 1987 and a year later Dorsey brought this suit challenging the Job Corps' action.

In January 1989, while the suit was pending, the Job Corps notified Dorsey that it had revised its policy by making the exclusion of HIV-positive applicants discretionary rather than mandatory and that Dorsey could re-apply to one of its residential centers. On the recommendation of a Job Corps representative, Dorsey applied to the residential facility in Morganfield, Kentucky, and travelled there in May 1989. Once again Dorsey tested HIV-positive. The Job Corps nevertheless permitted him to join the Kentucky facility, where he enrolled in culinary arts courses. In his amended complaint, Dorsey alleges that after his HIV test results became widely known at the facility, Job Corps staff members and enrollees...

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