Fisher v. City of Tucson

Decision Date23 November 1981
Docket NumberNo. 78-1251,78-1251
Citation663 F.2d 861
Parties27 Fair Empl.Prac.Cas. 892, 27 Empl. Prac. Dec. P 32,289, 1 A.D. Cases 286 William FISHER, Plaintiff-Appellant, v. CITY OF TUCSON, an incorporated municipality, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

William E. Morris, Tucson, Ariz., for plaintiff-appellant.

Thomas J. Wilson, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, FLETCHER and FARRIS, Circuit Judges.

HUG, Circuit Judge:

This is an action brought by the appellant, William Fisher, alleging that the City of Tucson, Arizona violated section 503 of the Rehabilitation Act of 1973 in failing to hire him as an industrial electronics technician. Section 503 mandates that "(a)ny contract in excess of $2,500 entered into by any Federal department or agency ... contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals." 29 U.S.C. § 793(a). 1 Fisher, who suffers from a physical handicap, argues that the City of Tucson violated section 503, first by discriminating against him on the basis of his handicap, and second by failing to fulfill its contractual obligation to take affirmative action to employ qualified handicapped individuals.

Section 503 does not expressly provide that its provisions may be enforced through a private right of action. Rather, the statute provides that a handicapped individual who believes that a government contractor has failed to comply with its provisions may file a complaint with the Department of Labor. 29 U.S.C. § 793(b). 2 The district court, finding that an implied private right of action did not exist under section 503, dismissed Fisher's complaint for failure to state a claim. Thus the sole issue before us on appeal is whether we may find an implied right of action in section 503. Because we find insufficient legislative intent to create a private right of action to enforce the mandates of section 503, we affirm the judgment of the district court.

I Facts

For purposes of this appeal, we must assume the truth of the facts alleged in Fisher's amended complaint. The complaint states that Fisher has considerable educational and practical experience in the field of electronics. He received the highest score on a civil service test administered by the City of Tucson (the "City") for the position of "industrial electronics technician I," and was subsequently invited, with two other persons, to a final interview. During his interview, Fisher told officials that he had a lower back injury, for which treatment was required. One of the other applicants was hired. The complaint states that Fisher was told that he was denied employment due to his physical disability. Fisher claims that he is well-qualified for the job and physically capable of performing it.

Shortly thereafter, Fisher filed a complaint with the Department of Labor ("DOL"). The DOL investigated the complaint and determined that Fisher was a "handicapped individual" within the meaning of 29 U.S.C. § 706(7) and that the City was a federal contractor within the definition of section 503, but that the City had not violated section 503 in refusing to hire Fisher. The DOL determined that no further action on Fisher's complaint was warranted. 3 Fisher then instituted this proceeding.

II Analysis

The Supreme Court has stated that four factors are relevant in determining whether a private right of action may be implied to enforce the provisions of a statute which does not expressly provide such a right:

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 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, 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?

Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (citations omitted). In a more recent case, the Court has emphasized that in applying the Cort v. Ash analysis, the ultimate issue remains "whether Congress intended to create a private right of action." State of California v. Sierra Club, --- U.S. ----, ----, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101, 107 (1981). It cannot be overemphasized that the "ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law." Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 2490, 61 L.Ed.2d 82 (1979). We examine the Cort v. Ash factors, then, in an attempt to determine from the statute and the circumstances surrounding its enactment whether Congress intended to create a private right of action.

A. Is the plaintiff one for whose benefit the statute was enacted?

In California v. Sierra Club, the Court emphasized that the first Cort v. Ash factor requires not only a consideration of whether the plaintiff is a member of the class for whose benefit the statute was enacted, but also whether "Congress intended to confer federal rights upon those beneficiaries." --- U.S. at ----, 101 S.Ct. at 1780, 68 L.Ed.2d at 108. Otherwise, the Court stated, any crime victim "would be deemed an especial beneficiary of the criminal statute's proscription." Id. --- U.S. at ----, 101 S.Ct. at 1779, at 107.

In Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980), in which a divided panel of the Fifth Circuit concluded that section 503 does not create a private right of action, the court found that the statute did not confer a right in favor of handicapped individuals. Id. at 1079-80. While we agree with the Fifth Circuit's ultimate conclusion that section 503 does not create a private right of action, we do find that the statute creates a federal right on behalf of the protected class. Clearly the statute was intended to benefit handicapped persons. The statute also provides that any handicapped individual who believes that a contractor is not in compliance with his contract may file a complaint with the DOL, which has investigatory and enforcement powers. 29 U.S.C. § 793(b). 4 It seems apparent that Congress did intend to confer some federal rights on handicapped individuals. However, the fact that these rights were conferred on handicapped individuals does not necessarily lead us to conclude that Congress intended to create a private right of action to enforce them. To the contrary, Congress could well have intended to limit the exercise of these rights to the context of the administrative enforcement scheme. The question whether Congress did so limit the exercise of these rights is resolved through an examination of the second and third Cort v. Ash factors.

B. Expressions of Legislative Intent
1. The Statute

In attempting to determine whether Congress created a private right of action under Section 503 of the Rehabilitation Act, it is helpful to compare it to section 504 of the Act, 29 U.S.C. § 794, 5 which has been held to imply a private right of action. Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980). Section 503 does not, on its face, prohibit discrimination against handicapped persons. Rather, it requires that certain employers who contract with the federal government take affirmative action to employ and promote qualified handicapped individuals. Section 504 of the Act, on the other hand, specifically prohibits discrimination against handicapped individuals in any program or activity receiving federal financial assistance.

To the extent that section 503 does not expressly prohibit discrimination against the handicapped, it is unlike both section 504 and Title IX, which the Supreme Court found in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), to have created an implied right of action. Significantly, the Court stated in Cannon that "(t)here would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." Id. at 690-93, 99 S.Ct. at 1954-56 (footnote omitted). While Cannon does not require us to find this consideration determinative in the instant case, clearly section 503, unlike section 504, is similar to the hypothetical statutes distinguished from Title IX by the Court in Cannon.

A consideration of perhaps even greater significance here is that Congress has not expressly made discrimination against handicapped individuals unlawful in section 503, but rather has mandated that contractors discriminate in favor of handicapped individuals by implementing affirmative action programs. It is no doubt true that the affirmative action requirement impliedly mandates that contractors not discriminate against the handicapped. In addition, regulations promulgated pursuant to section 503 require that the contractor agree not to discriminate against handicapped persons. 6 At the same time, the affirmative action requirement reflects congressional concern for the class, rather than the individual. The administrative remedy provision provides support for this interpretation in specifying that when a...

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