Cousins v. Secretary of U.S. Dept. of Transp., 88-1106

• Decision Date: 07 June 1988
• Docket Number: No. 88-1106,88-1106
• Citation: 857 F.2d 37
• Parties: 47 Fair Empl.Prac.Cas. 1640, 47 Empl. Prac. Dec. P 38,353, 57 USLW 2202, 1 A.D. Cases 1374 Michael COUSINS, Plaintiff, Appellant, v. SECRETARY OF the UNITED STATES DEPARTMENT OF TRANSPORTATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

857 F.2d 37

47 Fair Empl.Prac.Cas. 1640,

47 Empl. Prac. Dec. P 38,353, 57 USLW 2202,

1 A.D. Cases 1374

Michael COUSINS, Plaintiff, Appellant, v. SECRETARY OF the UNITED STATES DEPARTMENT OF TRANSPORTATION,

Defendant, Appellee.

No. 88-1106.

United States Court of Appeals, First Circuit.

Heard June 7, 1988.

Decided Sept. 20, 1988.

Harold L. Lichten with whom Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, Mass., Marc P. Charmatz and Sarah S. Geer, Nat. Ass'n of the Deaf Legal Defense Fund, and Sy DuBow and E. Elaine Gardner, Nat. Center for Law and the Deaf, Washington, D.C., were on brief, for plaintiff, appellant.

Robert K. Rasmussen, Appellate Staff, Civ. Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Washington, D.C., Robert S. Mueller, III, Deputy U.S. Atty., Boston, Mass., and Michael Jay Singer, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for defendant, appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This appeal raises the question of whether there is a private right of action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, against the federal government acting in its regulatory capacity. ¹ Plaintiff-appellant, Michael Cousins, is a deaf man who was unable to obtain employment in Maine as a tractor-trailer driver because a regulation promulgated by the United States Department of Transportation (DOT) effectively prohibits deaf persons from driving motor carriers in interstate commerce, regardless of their ability to perform such duties. See 49 C.F.R. Sec. 391.41(b)(11) (1987). ² Plaintiff challenged this regulation in the United States District Court for the District of Maine by bringing suit under section 504 against Elizabeth Dole in her official capacity as the Secretary of DOT. He alleged that, by promulating and threatening to enforce the regulation against him, defendant caused him to be denied employment as a commercial truck driver. ³ The district court found that the plaintiff had no private right of action against DOT under section 504, and accordingly, dismissed the complaint without prejudice to the filing of an amended complaint stating a claim for relief under the Administrative Procedure Act. See Cousins v. Dole, 674 F.Supp. 360 (D.Me.1987). Plaintiff appealed. ⁴

I.

Our analysis is controlled and therefore simplified by Traynor v. Turnage, --- U.S. ----, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988), in which the Supreme Court rested its holding on the assumption that there is a private right of action under section 504 of the Rehabilitation Act against the federal government acting in its regulatory capacity. A procedural exegesis of Traynor is necessary.

Traynor was a consolidation of cases from different circuits challenging the same regulation issued by the Veterans' Administration (VA). Veterans Traynor and McKelvey were recovered alcoholics who sought veterans' educational assistance benefits under the G.I. Bill. See 38 U.S.C. Sec. 1661. Although these benefits generally must be used within ten years following discharge or release from active duty, veterans may obtain an extension beyond this ten-year period, if they were prevented from using their benefits earlier by "a physical or mental disability which was not the result of [their] own willful misconduct...." 38 U.S.C. Sec. 1662(a)(1). Traynor and McKelvey claimed an extension under this provision on the ground that they had been disabled by alcoholism during much of the ten-year period. The VA rejected their position, relying on that part of the challenged regulation which characterizes a disability resulting from "the drinking of a beverage to enjoy its intoxicating effects" as "willful misconduct." See 38 C.F.R. Sec. 3.301(c)(2).

Traynor sought review of the VA decision in the United States District Court for the Southern District of New York, and McKelvey, in the United States District Court for the District of Columbia. Both claimed that the VA's refusal to extend them benefits, a decision made pursuant to the challenged regulation, violated their right under section 504 not to be discriminated against solely on the basis of a handicap, in their case, alcoholism. The district courts agreed. See Traynor v. Walters, 606 F.Supp. 391 (S.D.N.Y.1985); McKelvey v. Walters, 596 F.Supp. 1317 (D.D.C.1984).

On appeal, the Second Circuit reversed the decision in favor of Traynor on the ground that a separate provision of the Veterans' Benefits statute, 38 U.S.C. Sec. 211(a), ⁵ barred review of the section 504 claim. See Traynor v. Walters, 791 F.2d 226 (2d Cir.1986). The District of Columbia Circuit disagreed, but reversed the decision in favor of McKelvey on the merits. See McKelvey v. Turnage, 792 F.2d 194 (D.C.Cir.1986). The Supreme Court granted certiorari "to decide whether the Veterans' Administration's decision is subject to judicial review and, if so, whether that decision violates Sec. 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S.C. Sec. 794, which requires that federal programs not discriminate against handicapped individuals solely because of their handicap." Traynor, 108 S.Ct. at 1376.

The Court concluded that the question of "whether a [VA] regulation violate[d] the Rehabilitation Act is not foreclosed from judicial review by Sec. 211(a)[,]" id. at 1380, but that the regulation in question did not violate the Act. Id. at 1380-84. In spite of the Court's explicit reference to the Rehabilitation Act, defendant-appellee argues that it is unclear from Traynor whether the petitioners' claims arose directly under the Rehabilitation Act, or under the Administrative Procedure Act (APA). Specifically, defendant suggests that the Supreme Court might have been assessing the validity of the veterans' benefit regulation under the APA provision which provides that agency action must be set aside if it is "arbitrary, capricious, ... or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). We think that defendant's argument defies the plain meaning of the Supreme Court's decision.

At no point in Traynor did the Court mention the APA. Its only reference to the type of claim that might be brought pursuant to the APA appears implicitly in its discussion of whether section 211(a) barred judicial review of the section 504 claim. The Court stated [T]he cases now before us involve the issue whether the law sought to be administered is valid in light of a subsequent statute whose enforcement is not the exclusive domain of the Veterans' Administration. There is no claim that the regulation at issue is inconsistent with the statute under which it was issued.

* * *

Traynor, 108 S.Ct. at 1379 (footnote omitted) (emphasis added).

In fact, a claim that the regulation was "inconsistent with the statute under which it was issued" had been advanced and rejected in one of the courts below. In McKelvey v. Walters, 596 F.Supp. 1317, the district court described the issue "presented for determination" as

whether the regulation [was] arbitrary, irrational and exceed[ed] the agency's statutory authority by denying lawful benefits to veterans who suffer from alcoholism. The plaintiff's challenge arises under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A), and the due process and equal protection prongs of the Fifth Amendment. The plaintiff's challenge also calls for consideration of his claim that in denying his request for relief, his rights under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, which prohibits discrimination against alcoholics, were violated.

596 F.Supp. at 1319. The district court rejected the APA claim because it found that the challenged regulation did not "contravene any implicit or explicit congressional intent" reflected in the statutory provision allowing an extension of the ten-year delimiting period for those veterans prevented from using their benefits by a disability not the result of their own "willful misconduct." Id. at 1321. In contrast, the court found that the regulation did violate section 504. Only the claim arising under section 504 was appealed. See McKelvey v. Turnage, 792 F.2d 194.

In Traynor v. Walters, the district court considered whether the regulation violated "the nondiscrimination provisions of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 701-794, and the fifth amendment." 606 F.Supp. at 393. Although the court found that the "regulations challenged herein with[stood] constitutional scrutiny, [it also found that] they violate[d] Sec. 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794." Id. at 401. ⁶ It based its conclusion on a finding that the VA policy "contravene[d] the Rehabilitation Act by discriminating against those rehabilitated alcoholics (a remarkable accomplishment) most deserving of aid." Id. Only the claim arising under section 504 was appealed. See Traynor v. Walters, 791 F.2d 226.

The issue before the Supreme Court therefore was whether the regulation characterizing alcoholism as "willful misconduct" violated section 504 of the Rehabilitation Act of 1973. The question of whether the regulation also violated the APA mandate that agency action not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. Sec. 706(2)(A), was not before the Court. Had it been, the Court would have said so. Moreover, it would have referred to the standard of review applicable under 5 U.S.C. Sec. 706(2)(A). In defining this standard, known as the "arbitrary and capricious" standard, the Supreme Court has directed that a reviewing court must " 'consider whether the [agency] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight...