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

• Citation: 880 F.2d 603
• Decision Date: 07 June 1988
• Docket Number: No. 88-1106,88-1106
• Parties: 50 Fair Empl.Prac.Cas. 1684, 1 A.D. Cases 1502 Michael COUSINS, Plaintiff, Appellant, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 603

880 F.2d 603

50 Fair Empl.Prac.Cas. 1684, 1 A.D. Cases 1502

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 July 24, 1989.

Harold L. Lichten, Lewiston, Me., Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Marc P. Charmatz, Washington, D.C., and Sarah S. Geer, Nat. Ass'n of the Deaf Legal Defense Fund, Alexandria, Va., and Sy Dubow and E. Elaine Gardner, Nat. Center for Law and the Deaf, Washington, D.C., on brief, for plaintiff, appellant.

Stewart E. Schiffer, Acting Asst. Atty. Gen., Richard S. Cohen, U.S. Atty., Augusta, Me., and Michael Jay Singer and Robert K. Rasmussen, Appellate Staff, Civ. Div. Dept. of Justice, Washington, D.C., on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

OPINION EN BANC

BREYER, Circuit Judge.

Appellant Michael Cousins, who is deaf, obtained a Maine driver's license permitting him to drive a truck with a tractor trailer. A federal Department of Transportation (DOT) rule, however, prevents him from working as a truck driver. 49 C.F.R. Sec. 391.41(b)(11) (1987) (a "person is physically qualified to drive a motor vehicle if that person ... [f]irst perceives a forced whispered voice in the better ear at not less than 5 feet"). Although the DOT regulations allow drivers to apply for a waiver of some of the required physical qualifications, they do not allow waiver of the requirement that excludes deaf persons. 49 C.F.R. Sec. 391.49(a). Cousins, nonetheless, asked for a waiver, DOT refused to consider his request, and Cousins then sued DOT in the Maine federal district court, claiming that DOT's regulations and its refusal to grant him a waiver violate the Constitution's Fifth Amendment and Sec. 504 of the Rehabilitation Act of 1973, which says that

No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.

29 U.S.C. Sec. 794 (1982).

The district court noted that Cousins called his suit an "implied private right of action" arising under Sec. 504. 674 F.Supp. 360 (D.Me.1987) The court believed that he should instead have referred to his suit as a request for "review of agency action" arising under the Administrative Procedure Act, 5 U.S.C. Secs. 701-706. The court therefore dismissed the suit without prejudice to Cousins' filing a new suit, referring to the proper statute. Rather than file a new suit, Cousins appealed to this court. A panel of this court reversed the dismissal, remanding the case to the district court for trial. Cousins v. Secretary of U.S. Department of Transportation, 857 F.2d 37 (1st Cir.1988). We now reconsider that decision en banc. We take an approach different from that argued by either side to the panel, but one that we believe principles of administrative law require. We conclude that the district court was correct in dismissing the action.

In a sense the parties are arguing about labels rather than substance. But, we believe that the argument has practical significance. If Cousins had applied the "APA" label, which in our view is the proper one, he would have brought his claim in a different court, namely this court. We also believe that Cousins' arguments--seeing Sec. 504 and the APA as setting forth different routes to obtain review of federal agency action--somewhat misconceive the nature of the APA. Section 504 and the APA are not rivals. Congress did not intend the APA to limit review available elsewhere. Rather, the APA was intended to organize and unify preexisting methods of obtaining judicial review of agency action, e.g., by making it clear that anyone "adversely affected or aggrieved within the meaning of a relevant statute" could obtain review of "agency action." 5 U.S.C. Sec. 702. A system of administrative law that seeks regularity and hopes to avoid confusion should offer a plaintiff such as Cousins a Sec. 504 action, but one that is securely embraced within the uniform procedural confines of the APA. And, we think that the APA not only should, but does, offer Cousins the type of review that he seeks.

To be more specific, after considering the parties' arguments on this appeal, we conclude that:

1. The district court is correct about the label that Cousins should apply to his suit. The appropriate label is "review of agency action" under the APA, not "implied private right of action" under Sec. 504, the latter label being one that the law typically reserves for an entirely different situation.

2. This difference in labels should not significantly affect Cousins' substantive rights. That is to say, it should not make a significant difference to Cousins' chances for success on the merits or to the substantive law that applies to his claim.

3. This difference in labels does have a procedural effect, for the APA, and other procedural statutes that it incorporates by reference, indicate that Cousins should have filed his action for review in this court, not in the district court.

We shall explain how we arrive at each of these conclusions, in turn.

1. Cousins wishes to challenge the lawfulness, under Sec. 504, of DOT's refusal to amend, modify, or waive its regulation preventing him from driving a truck. He called his claim an "implied private right of action under Sec. 504" because he believed that Congress intended to allow him to raise this type of challenge even though Sec. 504 does not expressly provide a remedy for one harmed by a federal agency's regulatory action. The Rehabilitation Act does expressly provide for private enforcement actions against "any recipient of Federal assistance or Federal provider of such assistance," see Sec. 794a(a)(2), and it also expressly provides for actions against the federal government as an employer, see Sec. 794a(a)(1). But even though Sec. 504's substantive standard applies, more broadly, to "any program or activity conducted by any Executive agency" (presumably including regulatory programs), the Act is silent about whether and how a person injured by the government as regulator is to enforce the Act against the government. Cousins would cure this omission by implying a private right of action under Sec. 504. We believe, however, that the omission simply reflects the fact that such a person already has a right to judicial review, as set forth in the APA.

We believe it preferable to call Cousins' lawsuit a request for APA review, and not an exercise of an implied private right of action under Sec. 504, for reasons that we set forth in N.A.A.C.P. v. Secretary of Housing & Urban Development, 817 F.2d 149 (1st Cir.1987). For one thing, given the vast number of federal laws, government agencies, and potential legal disputes, it makes sense to try to maintain a clear, orderly procedural way for injured persons to bring their claims against federal agencies before the courts. The APA was intended to provide just such a single uniform method for review of agency action. See 1946 U.S.Code Cong. & Admin.News, 1205 (the APA "sets forth a simplified statement of judicial review designed to afford a remedy for every legal wrong"); House Judiciary Committee Report, H.R.Rep No. 1980, 79th Cong., 2d Sess. (1946) 275 (Secs. 701-706 "require adequate, fair, effective, complete, and just determination of the rights of any person in properly invoked proceedings"); S.Rep. No. 442, 76th Cong., 1st Sess. (1939) 9-10 (concerning earlier version of the APA) ("unfortunately," existing statutes do not provide for "a uniform method and scope of judicial review"); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) ("legislative material ... manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the [APA's] 'generous review provisions' must be given a 'hospitable' interpretation"). The APA was designed to supplant a variety of pre-existing methods for obtaining review that differed from one agency to another and sometimes hindered the efforts of injured persons to obtain relief. See Report of the Attorney General on Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess. (1941) 79-92. To allow actions for review of agency action once again to proliferate under a variety of names would threaten a return to pre-APA confusion.

Further, as we explained in N.A.A.C.P., 817 F.2d at 152-53, in light of the existence of the APA, it rarely makes sense to find that a substantive statute creates an "implied private right of action" against the federal government for relief from unlawful regulatory action. The concept of an implied private right of action serves a useful legal purpose elsewhere in the law, when a plaintiff seeks to enforce a federal statute against a non-federal person. In such cases, the question arises whether "Congress meant to give an injured person a right himself to enforce the federal statute directly against the non-federal person or whether the injured person can do no more than ask the federal government to enforce the statute." Id. at 152; see, e.g., California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Without such an implied right of action, the plaintiff would have no remedy against such a non-federal person. But when a plaintiff seeks to enforce a federal statute against a federal regulatory agency, there is normally no need for an "implied private right of action." The general provisions for judicial review of...