Kling v. Los Angeles County, No. 80-5371
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before FLETCHER and CANBY, Circuit Judges, and SOLOMON; SOLOMON |
| Citation | 633 F.2d 876 |
| Parties | 24 Empl. Prac. Dec. P 31,398 Mary L. KLING, Appellant, v. COUNTY OF LOS ANGELES; Los Angeles County Medical Center School of Nursing; Gerald C. Crary, M.D., as head of the Admissions Committee of Los Angeles County Medical Center School of Nursing; Mary Duncan, R.N., as Registrar and Head of Recruitment for Los Angeles County Medical Center School of Nursing; Foteen O'Connor, as Chief Administrative Director of Los Angeles County Medical Center School of Nursing; Paul Drozd, as Deputy Administrative Director of Los Angeles County Medical Center School of Nursing, Appellees. |
| Docket Number | No. 80-5371 |
| Decision Date | 08 December 1980 |
Page 876
v.
COUNTY OF LOS ANGELES; Los Angeles County Medical Center
School of Nursing; Gerald C. Crary, M.D., as head of the
Admissions Committee of Los Angeles County Medical Center
School of Nursing; Mary Duncan, R.N., as Registrar and Head
of Recruitment for Los Angeles County Medical Center School
of Nursing; Foteen O'Connor, as Chief Administrative
Director of Los Angeles County Medical Center School of
Nursing; Paul Drozd, as Deputy Administrative Director of
Los Angeles County Medical Center School of Nursing, Appellees.
Ninth Circuit.
Decided Dec. 8, 1980.
Page 877
Stanley Fleishman, Beverly Hills, Cal., for appellant.
Alan K. Terakawa, Los Angeles, Cal., for appellee.
Appeal from the United States District Court for the Central District of California.
Before FLETCHER and CANBY, Circuit Judges, and SOLOMON, District Judge. *
SOLOMON, Senior District Judge:
Mary Kling, who suffers from Crohn's disease, appeals from the district court's stay of her proceedings pending exhaustion of administrative remedies and from a denial of her motion for a preliminary injunction to allow her to attend the Los Angeles County School of Nursing (School) pending a trial of her action against the School. She seeks relief under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504) and the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Kling is afflicted with Crohn's disease. In February 1979, she applied for admission to the School. In April 1979, she received a letter admitting her. At the School's invitation, she attended an orientation session where she was told to order uniforms and to purchase textbooks for the summer session. But, after a School doctor examined her, the School informed her that she could not enroll.
Kling complained to HEW but when she brought this action in the district court, HEW closed its files. In her action filed in July 1979, she alleged that the School violated Section 504 when solely because of her handicap the School refused to admit her to its nursing program. She sought declaratory and injunctive relief and also a preliminary injunction requiring the School to admit her for the Spring semester. The district
Page 878
court denied the motion because she had not exhausted her administrative remedies.In this appeal, we will only consider Kling's claims under the Rehabilitation Act of 1973 (the Act). Section 504 of that Act provides:
No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, 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....
Kling is a handicapped individual as defined by the Act. 29 U.S.C. § 706(7). The School's nursing program receives federal financial assistance.
Kling must first establish that there is a private right of action under Section 504. This issue is one of first impression in this court. 1 But all the other circuits that have considered this issue have held that there is such a right of action. Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980); NAACP v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979) 2; Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four criteria for determining whether a private remedy is implicit in a statute which does not expressly provide for one.
"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?"
Id. at 78, 95 S.Ct. at 2087 (citations omitted).
We agree with the application of the Cort test to Section 504 the court made in Lloyd v. Regional Transportation Authority, supra. There the court found that both the legislative history of the Rehabilitation Act and the analogy to Title VI of the Civil Rights Act of 1964, as interpreted in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) supports the existence of such a right. 3
We therefore hold that Kling has a private right of action under Section 504 of the Rehabilitation Act of 1973.
Page 879
EXHAUSTION OF REMEDIES
The district court held that it was necessary that Kling exhaust her administrative remedies before she...
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White v. State of California
...withholding of federal funds, for example, does not make plaintiff and his class whole. (See Kling v. County of Los Angeles (9th Cir.1980) 633 F.2d 876, 879; Camenisch v. University of Texas (5th Cir.1980) 616 F.2d 127, We therefore hold plaintiff may pursue his class action under section 1......
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Nodleman v. Aero Mexico, No. CV 79-3909-WMB.
...U.S.C. § 794 (1979). The Ninth Circuit has held that there is a private right of action under Section 504. Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir. 1980); see Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal. 1979); Boxall v. Sequoia Unified School District, 464 F.Supp. 1104 (......
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Dugger v. Stephen F. Austin State Univ., Case No. 2:15–CV–1509–WCB
...1330 (9th Cir. 1990) ; N.M. Ass'n of Retarded Citizens v. State of N.M. , 678 F.2d 847, 850 (10th Cir. 1982) ; Kling v. Los Angeles Cty. , 633 F.2d 876, 879 (9th Cir. 1980) ; Minter v. Dist. of Columbia , 62 F.Supp.3d 149 (D.D.C. 2014). The exhaustion of remedies argument therefore has no t......
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Garrity v. Gallen, Civ. A. No. 78-116-D.
...whether § 504 provides a private right of action have held that the statute does afford such relief. See Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980)135; Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980); NAACP v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 197......
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Pushkin v. Regents of University of Colorado, No. 81-1224
...considered this question have held that a private right of action exists under the statute. See, e. g., Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.......
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White v. State of California
...withholding of federal funds, for example, does not make plaintiff and his class whole. (See Kling v. County of Los Angeles (9th Cir.1980) 633 F.2d 876, 879; Camenisch v. University of Texas (5th Cir.1980) 616 F.2d 127, We therefore hold plaintiff may pursue his class action under section 1......
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Nodleman v. Aero Mexico, No. CV 79-3909-WMB.
...U.S.C. § 794 (1979). The Ninth Circuit has held that there is a private right of action under Section 504. Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir. 1980); see Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal. 1979); Boxall v. Sequoia Unified School District, 464 F.Supp. 1104 (......
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Miener v. State of Mo., No. 80-1971
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