California Paralyzed Veterans Ass'n v. FCC

• Decision Date: 01 August 1980
• Docket Number: 79-644-WPG and 79-1633-WPG.,Civ. No. 79-501-WPG
• Citation: 496 F. Supp. 125
• Court: U.S. District Court — Central District of California
• Parties: The CALIFORNIA PARALYZED VETERANS ASSOCIATION, etc., et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION et al., Defendants. CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC., a California Corporation, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION; Columbia Broadcasting System, Inc., a corporation, et al., Defendants. Patty Ann BERKOSKY, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. DEPARTMENT OF LABOR; Federal Communications Commission; American Broadcasting Company, et al., Defendants.

496 F. Supp. 125

The CALIFORNIA PARALYZED VETERANS ASSOCIATION, etc., et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION et al., Defendants.

CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC., a California Corporation, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION; Columbia Broadcasting System, Inc., a corporation, et al., Defendants.

Patty Ann BERKOSKY, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. DEPARTMENT OF LABOR; Federal Communications Commission; American Broadcasting Company, et al., Defendants.

Civ. Nos. 79-501-WPG, 79-644-WPG and 79-1633-WPG.

United States District Court, C. D. California.

August 1, 1980.

Stanley Fleishman, Beverly Hills, Cal., for plaintiffs.

Gibson, Dunn & Crutcher, David Cathcart, Los Angeles, Cal., Andrea Sheridan Ordin, U. S. Atty., Michael E. Wolfson, Asst. U. S. Atty., Los Angeles, Cal., Barbara Allen Babcock, Mark C. Rutzick, Asst. Attys. Gen., Dept. of Justice, Washington, D. C., Paul Hastings, Janofsky & Walker, Newport Beach, Cal., Donald A. Daucher, Michael A. Hood, O'Melveny & Myers, Los Angeles, Cal., Wilmer & Pickering, Washington, D. C., for defendants.

MEMORANDUM OF DECISION

WILLIAM P. GRAY, District Judge.

The principal question before this court is whether section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 (1976), impliedly authorizes a private suit for damages in federal court. Additionally, the defendants have raised the issue of whether a complainant must exhaust administrative remedies before the Department of Labor prior to initiating a private action. In No. 79-644-WPG, defendant Columbia Broadcasting System also argues that the California Association of the Physically Handicapped ("CAPH") lacks standing to sue. Finally, plaintiffs have asserted a right to attorneys fees based on their claims against the Federal Communications Commission under section 504 of the Rehabilitation Act of 1973.

For the reasons outlined below, this court finds that section 503 does create a private right of action; plaintiffs need not exhaust administrative remedies thereunder; plaintiff CAPH has standing to sue on behalf of its members; and plaintiffs are not entitled to an attorneys fee award against the FCC.

I. SECTION 503 OF THE REHABILITATION ACT OF 1973

Section 503 requires all federal contracts in excess of $2,500 for the procurement of personal property and nonpersonal services to include a clause providing that, "in employing persons to carry out such contract," the private contracting party "shall take affirmative action to employ and advance in employment qualified handicapped individuals . . .." 29 U.S.C. § 793(a).¹ Any handicapped individual who believes that a contractor is not in compliance with the contract provisions may file a complaint with the Department of Labor. 29 U.S.C. § 793(b). However, section 503 does not expressly provide a private right of action to redress injuries caused by noncompliance with the contract provision. The federal courts have divided on the issue of whether that section creates a private right of action by implication.² Although the Ninth Circuit Court of Appeals has not addressed the issue, two Ninth Circuit district courts have inferred the right to a cause of action under section 503.³

The Supreme Court established the analytical framework for determining "whether a private remedy is implicit in a statute not expressly providing one" in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). The Court identified four relevant factors:

"First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' . . . — that is, does the statute create a federal right in favor of the plaintiff? 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 purpose 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, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Id.

While recent Supreme Court cases have held that the dispositive factor in whether Congress intended to create a private cause of action, see Touche Ross & Co. v. Reddington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), those cases have reaffirmed the use of at least the first three Cort factors as aids in discerning congressional intent.⁴

The threshold question is whether section 503 was enacted for the benefit of a special class. The language of the statute, itself, requires an affirmative answer. In the words of the opinion of the Court in Cannon v. University of Chicago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1954, 60 L.Ed.2d 560 (1979), in considering the same issue with respect to Title IX, the present statute ". . . expressly identifies the class Congress intended to benefit and contrasts sharply with statutory language customarily found in criminal statutes . . . and other laws enacted for the protection of the general public." Id.

The language of section 503 clearly identifies handicapped individuals as the benefitted class. First, the statute requires federal contractors to "employ and advance in employment qualified handicapped individuals." (Emphasis added.) Second, subsection (b) authorizes "handicapped individuals" to file, with the Department of Labor, complaints alleging non-compliance. Although this language does not strictly track the statutory language that the Supreme Court has identified as most conducive to implication of a private right of action,⁵ it nevertheless "unmistakably focuses on the benefitted class." Cannon v. University of Chicago, 441 U.S. at 691, 99 S.Ct. at 1955.

The plaintiffs in this action are within the benefitted class. Plaintiffs in No. 79-501-WPG are the California Paralyzed Veterans Association, suing on behalf of its members; Paula Zeller, a physically handicapped person who alleges that she is fully qualified for on-screen television employment, and that she has been discriminatorily denied such employment; and Patty Ann Berkosky, a handicapped individual who alleges that she has been denied off-screen employment by the television industry solely by reason of her handicap in violation of section 503. Patty Ann Berkosky makes the same allegation as a plaintiff in No. 79-1633-WPG. In No. 79-644-WPG, plaintiff CAPH is a nonprofit corporation dedicated to preserving the rights of handicapped persons. The CAPH alleges that many of its members are fully qualified for employment in the television industry and have been denied such employment solely by reason of their handicap.

The second Cort factor requires an examination of legislative intent. The legislative history surrounding the enactment of section 503 in 1973 fails to reveal whether Congress intended to create or deny a private cause of action. However, "the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. at 246, 62 L.Ed.2d at 154. Therefore, other evidence of congressional intent must be considered. This court concludes that statements by members of Congress during the enactment of the 1974 and 1978 amendments to the Rehabilitation Act, and the passage of the 1978 attorneys fee provision are persuasive evidence of Congress' original intent to provide an individual private action under section 503.

In Hart v. County of Alameda, 485 F.Supp. 66 (N.D.Cal.1979), Judge Orrick, after making a careful and thorough analysis, concluded that certain statements in the Senate Conference Report accompanying the 1974 Amendments regarding section 504 of the Rehabilitation Act⁶ and the administration of sections 503 and 504 reveal that Congress intended private enforcement of both. One of the statements in the Senate Conference Report upon which Judge Orrick relied is the assertion that "It is intended that sections 503 and 504 be administered in such a manner that a consistent, uniform and effective federal approach to discrimination against handicapped persons would result."⁷

Of course, the administration of the two sections could be "uniform" and "consistent" without being identical, as was pointed out in Chaplin v. Consol. Edison Co. of N. Y., Inc., 482 F.Supp. 1165, 1169 (S.D.N.Y. 1980). However, the comments by Senator Stafford during the debate over the 1974 Amendments give further support to the conclusion that private enforcement of both sections 503 and 504 was intended. He referred to the above-quoted excerpt from the Senate Report, and then stated:

"As the Senators are aware, the sections I have just cited establish Federal Government policies as they relate to programs receiving Federal financial assistance and the prohibition against discrimination on any basis. It was the committee's intent that the enforcement under sections 503 and 504 would be similar to that carried out under section 601 of the Civil Rights Act and 901 of the Education Amendments of 1972.

"I cannot stress strongly enough the need for strong enforcement of sections 503 and 504 because the discrimination of those individuals with handicaps has been practiced in our society." 120 Cong.Rec. 30551 (1974).

Although mindful of the contrary views of the majority in Rogers v. Frito Lay, 611 F.2d 1074 (5th Cir. 1980), this court agrees with Judge Orrick's analysis and conclusions expressed in Hart and with Judge Goldberg's dissenting opinion in Rogers. Accordingly, it is inferred that Congress intended that section 503 might be privately enforced.

The third Cort factor also weighs in favor of inferring the right to a cause of...