Pushkin v. Regents of University of Colorado

• Decision Date: 04 September 1981
• Docket Number: No. 81-1224,81-1224
• Citation: 658 F.2d 1372
• Parties: 26 Empl. Prac. Dec. P 32,096, 2 A.D. Cases 11 Joshua R. PUSHKIN, M. D., Plaintiff-Appellee, v. The REGENTS OF the UNIVERSITY OF COLORADO; the University of Colorado; the University of Colorado Hospital, a/k/a the University of Colorado Health Sciences Center; University of Colorado Psychiatric Hospital; and Douglas Carter, M. D., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1372

658 F.2d 1372

26 Empl. Prac. Dec. P 32,096, 2 A.D. Cases 11

Joshua R. PUSHKIN, M. D., Plaintiff-Appellee, v. The REGENTS OF the UNIVERSITY OF COLORADO; the University of

Colorado; the University of Colorado Hospital, a/k/a the

University of Colorado Health Sciences Center; University of

Colorado Psychiatric Hospital; and Douglas Carter, M. D.,

Defendants-Appellants.

No. 81-1224.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 17, 1981.

Decided Sept. 4, 1981.

George D. Dikeou, Asst. Atty. Gen., Denver, Colo. (J. D. Macfarlane, Atty. Gen., Denver, Colo., with him on the brief), for defendants-appellants.

David E. Engdahl, Engdahl & Renzo, Denver, Colo., for plaintiff-appellee.

Before DOYLE and LOGAN, Circuit Judges, and TEMPLAR, ^* Senior District Judge.

WILLIAM E. DOYLE, Circuit Judge.

This is an appeal by the defendants-appellants consisting of the Regents of the University of Colorado; the University of Colorado Hospital, also known as University of Colorado Health Science Center; the University of Colorado Psychiatric Hospital; and Douglas Carter, M. D. The action was brought by Joshua R. Pushkin, M. D., the plaintiff-appellee in this court, pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983.

The decree in question is an injunction directing that plaintiff-appellee be admitted to the next class at the University of Colorado Psychiatric Residency Program; the judgment awarded plaintiff attorneys fees and costs. The plaintiff had sought monetary damages as well. This request has been denied and no appeal is taken from this denial.

Dr. Pushkin is a medical doctor who alleges that the University of Colorado wrongfully denied him admittance to the Psychiatric Residency Program because he suffers from multiple sclerosis. As a result of this disease Dr. Pushkin is confined to a wheelchair, and is disabled in his abilities to walk and to write. The court found that Dr. Pushkin was an otherwise qualified handicapped individual who had been excluded from a program receiving federal financial assistance solely by reason of his handicap, and that the University was in violation of § 504 of the Rehabilitation Act which provides in pertinent part:

No otherwise qualified handicapped individual in the United States as defined in § 706(6) of this Title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance...

It is undisputed that the program in question is receiving federal financial assistance. The district court, 504 F.Supp. 1292, recognized this and further ruled that the statute was violated because the plaintiff was excluded from participation in or denied the benefits of or subjected to discrimination under a program receiving such funds within the meaning of the statute. The court also held that Dr. Pushkin was an otherwise qualified individual in spite of his handicap, in accord with the Supreme Court's ruling in Southeastern Community College v. Davis, 442 Defendants appeal the trial court's ruling on three grounds. They maintain that: 1) no private cause of action exists under § 504; 2) plaintiff has failed to exhaust his administrative remedies prior to filing this lawsuit; and 3) the trial court erroneously decided the merits of the case. Each of these contentions will be taken up in this review.

U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), and thus was entitled to admittance to the program. Pursuant to the injunction, Dr. Pushkin was admitted to the residency program on July 1, 1981 and he is actually taking part in the program at the present time. We have expedited the appeal in an effort to reach an early resolution of the controversy. As already noted defendants have not disputed that Dr. Pushkin is handicapped within the meaning of the statute, that the Psychiatric Residency Program is a program or activity receiving federal financial assistance within the meaning of the statute and that defendants were acting under color of state law within the meaning of § 1983 in taking the position which they took.

DOES § 504 OF THE REHABILITATION ACT, 29 U.S.C. § 794 CREATE

A PRIVATE CAUSE OF ACTION?

The Supreme Court's decision in Southeastern Community College v. Davis, 442 U.S. 397, 404, n. 5, 99 S.Ct. 2361, 2366, n. 5, 60 L.Ed.2d 980 (1979) considered a case which arose under this identical section but did not consider the issue of a private remedy under the Act. The Court did rule on the merits of the case and the judgment of the Court of Appeals for the Fourth Circuit which had granted relief to the handicapped person was reversed by the Supreme Court. The decision was based on the "otherwise qualified" phrase in the statute. It rejected the requirement that was imposed by the court of appeals that § 504 contemplated "affirmative conduct" by the College to modify its program to accommodate the disabilities of applicants. The Supreme Court's determination was that there was no violation of the statute and the Supreme Court's unanimous decision said "in light of our disposition of this case on the merits, it is unnecessary to address these issues (including whether a private right of action was provided by the Act) and we express no views on them." 442 U.S. 405, n. 5, 99 S.Ct. 2366, n. 5.

This court in Coleman v. Darden, 595 F.2d 533 (10th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979), recognized that a private right of action may have been created by § 504. Every court of appeals and district court, and there have been many, which have 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.Ed.2d 175 (1981); Rogers v. Frito Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, Moon v. Roadway Express, Inc., 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980); N. A. A. C. P. v. The Medical Center, Inc., 599 F.2d 1247 (3rd Cir. 1979); Southeastern Community College v. Davis, 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); Leary v. Crapsey, 566 F.2d 863 (2nd Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2nd Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); ¹ Cain v. Archdiocese of Kansas City, 508 F.Supp. 1021 (D.Kan.1981); Coleman v. Casey Cty. Bd. of Ed., 510 F.Supp. 301 (W.D.Ky.1980); Patton v. Dumpson, 498 F.Supp. 933 (S.D.N.Y.1980); Miener v. State of Missouri, 498 F.Supp. 944 (E.D.Mo.1980); Simon v. St. Louis County, Mo., 497 F.Supp. 141 (E.D.Mo.1980); Guertin v. Hackerman, 496 F.Supp. 593 (S.D.Tex.1980); Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal.1979); Poole v. South Plainfield Bd. of Ed., 490 F.Supp. 948 (D.N.J.1980); Upshur v. Love, 474 F.Supp. 332 (N.D.Cal.1979); Cruz v. Collazo, 84 F.R.D. 307 (D.Puerto Rico 1979); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978); Davis v. Bucher, 451 F.Supp. 791 (E.D.Pa.1978); Michigan Paralyzed Veterans of America v. Coleman, 451 F.Supp. 7 (E.D.Mich.1977); Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (E.D.Pa.1977), aff'd. in part, rev'd. in part, 612 F.2d 84 (3rd Cir. 1979), rev'd. on other grounds, --- U.S. ----, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); Crawford v. Univ. of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977); Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977). ² It is noteworthy that the Supreme Such a finding is fully supported by the legislative history of § 504 which provides as follows:

Court in Campbell v. Kruse, et al, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977) suggested that a private right of action does exist under § 504 when it remanded the case to the district court to determine whether handicapped children were being discriminated against by the application of the tuition grant system in question under § 504 rather than under the Fourteenth Amendment equal protection principles.

This approach to implementation of section 504, which closely follows the models of the above-cited anti-discrimination provisions (§ 601 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1, relating to race, color or national origin; § 901 of the Education Amendments of 1972, 42 U.S.C. 1683, relating to sex) would ensure administrative due process (right to hearing, right to review), provide for administrative consistency within the federal government as well as relative ease of implementation, and permit a judicial remedy through a private action.

S.Rep.No. 93-1297, 93 Cong. 2d Sess. 39-40, reprinted in 4 U.S.Code Cong. and Admin.News, pp. 6373, 6391 (1974) (emphasis supplied).

The Supreme Court's opinion in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) contains a test for determining whether a private right of action may be implied in a statute which does not expressly provide for such a right. That test requires that the following questions be answered:

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...