Hart v. County of Alameda, C-79-0091 WHO.

• Decision Date: 06 September 1979
• Docket Number: No. C-79-0091 WHO.,C-79-0091 WHO.
• Citation: 485 F. Supp. 66
• Parties: Clarence HART, Plaintiff, v. COUNTY OF ALAMEDA, Alameda County Probation Department, Defendants.
• Court: U.S. District Court — Northern District of California

485 F. Supp. 66

Clarence HART, Plaintiff, v. COUNTY OF ALAMEDA, Alameda County Probation Department, Defendants.

No. C-79-0091 WHO.

United States District Court, N. D. California.

September 6, 1979.

Prudence Kay Poppink, Kenneth Hecht, Employment Law Center, San Francisco, Cal., Robert J. Funk, Disability Law Resource Center, Center for Independent Living, Berkeley, Cal., for plaintiff.

Richard J. Moore, County Counsel, County of Alameda, Oakland, Cal., for defendants.

OPINION

ORRICK, District Judge.

By their Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the complaint, defendants raise the question, not heretofore addressed in this Circuit, whether handicapped persons may enforce, through a private cause of action, the provisions of Sections 503 and 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 793,¹ 794,² which generally prohibit discrimination against handicapped individuals by federal contractors or by programs receiving federal fiscal assistance, or of Section 122 of the State and Local Fiscal Assistance Act of 1972, as amended ("Revenue Sharing Act"), 31 U.S.C. § 1242,³ which prohibits such discrimination by recipients of federal revenue sharing funds. For the reasons herein stated, the Court denies defendants' motion, for it appears that Congress fully intended those statutory provisions to be privately enforced.

I.

The facts relevant to this motion are few and simply stated. Plaintiff, Clarence Hart, a "controlled" epileptic, has for the past several years volunteered his services as a group counselor to the defendant Alameda County Probation Department ("the Department") through its "Volunteers in Probation" program. In May, 1977, Hart applied to the Department for permanent employment as a group counselor. He claims that, although he passed the civil service examination and was placed on the eligibility list, he was refused employment solely because of his handicap.⁴ He further contends that because defendant County of Alameda ("the County") is a "unit of local government" which contracts with the United States, and because both the County and the Department receive federal revenue sharing and other federal fiscal assistance, their refusal to hire him for discriminatory reasons violates Sections 503 and 504 of the Rehabilitation Act, as well as Section 122 of the Revenue Sharing Act.

Defendants contend that none of the above-cited provisions authorizes, expressly or impliedly, a private right of action upon which plaintiff can rely.⁵ Accordingly, the Court now must examine carefully each statute to determine whether it can be enforced by a private right of action.

II.

At the outset it should be noted that neither Sections 503 nor 504 of Title V of the Rehabilitation Act expressly provides for a private right of action. The Court must therefore determine whether or not such a remedy is implicit in either statute. In this task, which is purely one of statutory construction, the Court is guided by the principles announced in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):

"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. 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?" (Citations omitted.)

In Cort, applying this analysis, a unanimous Court held that a shareholder could not maintain a private action against corporate directors for violations of 18 U.S.C. § 610, a criminal statute prohibiting corporations from making contributions or expenditures in connection with certain federal elections. The continuing vitality of the analysis set forth in Cort was recently confirmed in Cannon v. University of Chicago, 441 U.S. 677, 685, 99 S.Ct. 1946, 1951, 60 L.Ed.2d 560 (1979), in which the Court inferred a private remedy from Title IX of the Education Amendments of 1972 ("Title IX") in favor of women seeking admission to education programs receiving federal financial assistance.

With respect to the first and fourth factors of the Cort approach, Sections 503 and 504 need not be considered separately, for the analysis is identical for both. First, there exists no question whatsoever that handicapped persons are the class "for whose especial benefit the statutes were enacted." Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284 (7th Cir. 1977); Rogers v. Frito-Lay, Inc., 433 F.Supp. 200, 202 (N.D.Tex.1977). Extensive congressional hearings prior to the enactment of the Rehabilitation Act disclosed the failure of existing programs to serve the needs of handicapped persons. S.Rep. No. 93-318, 93d Cong., 1st Sess., reprinted in 1973 U.S.Code Cong. & Ad.News 2076, 2078. Congress strongly believed that the legislation was necessary "to deal with the problems of discrimination against handicapped persons in Federal employment and Federal grants and contracts * * *." Id. at 2079. Consequently, the final legislation boldly declared as one of its broad purposes:

"to promote and expand employment opportunities in the public and private sectors for handicapped individuals and to place such individuals in employment; * * *." 29 U.S.C. § 701(8) (1975).

There is likewise no question that plaintiff, a "controlled" epileptic, is a "handicapped individual" within the terms of the Act. 29 U.S.C. § 706(7) (Supp.1979); Drennon v. Philadelphia General Hospital, 428 F.Supp. 809, 815 (E.D.Pa.1977).

Second, it cannot seriously be contended that discrimination against handicapped persons is a matter "traditionally relegated to state law, in an area basically the concern of the States." Lloyd v. Regional Transportation Authority, supra, 548 F.2d at 1286-87; Drennon v. Philadelphia General Hospital, supra, 428 F.Supp. at 815. Since enactment of the Civil War Amendments, it has been clear that "the Federal Government and the federal courts have been the `primary and powerful reliances' in protecting citizens against * * * discrimination of any sort." Cannon v. University of Chicago, supra, 441 U.S. at 708, 99 S.Ct. at 1963. Federal interest is even more obvious where, as here, the factor which triggers application of the statute is the existence of federal fiscal assistance to public and private entities. Id. at 708, 99 S.Ct. at 1963. With respect to the plight of handicapped persons in employment, California's first foray into this area occurred in 1973, contemporaneously with federal lawmaking. Cal.Lab.Code § 1420 (Deering Supp.1979).

It thus appears that, as is often the case, the outcome of this inquiry will depend largely upon the second and third factors set forth in Cort: whether there is any indication of legislative intent to create or deny such a remedy, and whether implication of a private remedy is consistent with the underlying purposes of the legislative scheme. As to these criteria, it is necessary to examine each statute separately.

A. The Section 504 Claim

Section 504 of the Rehabilitation Act provides that no "qualified handicapped individual" shall be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance * * *." As part of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (the "1978 Amendments"), discussed in some detail below, Congress made available to any person aggrieved by a violation of the section the "remedies, procedures and rights" available under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"). Pursuant to statute, the Department of Health, Education and Welfare ("HEW") has promulgated regulations which establish, inter alia, an administrative complaint and investigation procedure. 45 C.F.R. §§ 84.61, 80.6-80.10 (1978). The administrative sanctions available for violation of Section 504 include termination of federal assistance and referral to the Department of Justice "with a recommendation that appropriate proceedings be brought to enforce any rights of the United States." Id. at § 80.8.

Although the Supreme Court has not yet addressed the issue,⁶ this Court notes the nearly unanimous agreement among the circuits that Section 504 does create a private right of action in favor of handicapped persons. NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); Lloyd v. Regional Transportation Authority, supra; Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); see also, Whitaker v. Board of Higher Education, 461 F.Supp. 99, 106-109 (E.D. N.Y.1978); Drennon v. Philadelphia General Hospital, supra; Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977); Vanko v. Finley, 440 F.Supp. 656 (N.D.Ohio 1977); Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.1976); but cf. Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979). These cases have generally held, often following the analysis of the Seventh Circuit in Lloyd v. Regional Transportation Authority, supra, that because congressional intent to create...