53 Fair Empl.Prac.Cas. 1241,
Alfredo DeVARGAS, Plaintiff-Appellant,
v.
MASON & HANGER-SILAS MASON CO., INC.; T.R. Hook,
individually and in his official capacity; Don Hardwick,
individually and in his official capacity; John Does, One
through Three, individually and in their official
capacities; Los Alamos National Laboratory; Gary Granere,
Acting Area Manager-Department of Energy Los Alamos Area
Office; Regents of University of California; Donald Kerr,
Director, Los Alamos National Laboratory; The United States
Department of Energy; Robert Pogna, Employee Los Alamos
National Laboratory; Ed C. Walterscheid, Employee Los
Alamos National Laboratory; Donald Paul Hodel, Secretary of
Department of Energy; and Richard Roes, One through Two,
Individually and in their official capacities; and John S.
Herrington, Defendants-Appellees.
No. 89-2061.
United States Court of Appeals,
Tenth Circuit.
Aug. 9, 1990.
Richard Rosenstock (Steven Farber, Santa Fe, N.M., and Philip Davis, Legal Director, New Mexico Civ. Liberties Union, Albuquerque, N.M., of counsel, with him on the briefs), Chama, N.M., for plaintiff-appellant.
Michael E. Robinson (Stuart E. Schiffer, Acting Asst. Atty. Gen., William L. Lutz, U.S. Atty., and John F. Cordes, with him on the brief), Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for federal defendants-appellees.
Joseph E. Earnest (Laurie A. Vogel, of Cherpelis, Vogel & Salazar, of Albuquerque, N.M., with him on the brief), Montgomery & Andrews, P.A., Santa Fe, New Mexico, for defendants-appellees the University and Mason & Hanger.
Before TACHA and McWilliams, Circuit Judges, and CHRISTENSEN, District Judge.*
TACHA, Circuit Judge.
This civil rights action arises from the refusal of Mason & Hanger-Silas Mason Company, Inc. ("Mason & Hanger") to consider Alfredo DeVargas for a position as a security inspector at the Los Alamos National Laboratory ("LANL") in Los Alamos, New Mexico. The district court granted the defendants' motion for summary judgment, and DeVargas appeals. We affirm.
I.
DeVargas applied for a security inspector position with Mason & Hanger in 1981 and 1983. Pursuant to a contract with the Regents of the University of California ("Regents"), Mason & Hanger supplies security inspectors for LANL. The Regents operate LANL for the Department of Energy ("DOE"), which conducts nuclear weapon and energy research at LANL. The three individual LANL defendants, Donald Kerr, Robert Pogna, and Edward C. Walterscheid ("individual LANL defendants") are employees of the University of California ("University"). Gary Granere, the Acting Area Manager for the DOE's LANL office, is a federal employee.
In 1981, Mason & Hanger and its employees, T.R. Hook and Don Hardwick ("individual Mason & Hanger defendants"), refused to process DeVargas's employment application, relying on a then-applicable DOE regulation, Interim Management Directive No. 6102 Sec. A.6.b. (8) Appendix IV (IMD 6102),1 which provided that "[a] one-eyed individual shall be medically disqualified for security inspector duties." DeVargas has vision in only one eye. When DeVargas reapplied in 1983, the Mason & Hanger defendants consulted with the individual LANL defendants, who agreed that IMD 6102 constituted a mandatory disqualification of one-eyed persons.
DeVargas filed suit, alleging in his first amended complaint that the defendants violated sections 504 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. Secs. 794-94а, and that the defendants unlawfully discriminated against him on the basis of his ancestry and handicap, in violation of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and the fifth and fourteenth amendments, U.S. Const. amends. V, XIV. DeVargas also alleged that the DOE promulgated IMD 6102 in violation of section 504 and the fifth amendment.
On April 9, 1986, the district court granted the defendants' motion for summary judgment on the section 504 and fifth amendment claims. The court dismissed all claims against the Regents and LANL based on their eleventh amendment immunity.2 The court did not extend eleventh amendment immunity to Kerr, Pogna, and Walterscheid, the LANL defendants, because they were sued only in their individual capacity. The DOE, Secretary of Energy Donald Paul Hodel, and Gary Granere moved to dismiss all claims for monetary damages based on the defense of sovereign immunity. The court permitted only DeVargas's claims for injunctive, nonmonetary relief to continue against these defendants in their official capacities.3 See 5 U.S.C. Sec. 702. The court did not dismiss the claims for monetary damages against Hodel and Granere in their individual capacities.
The defendants also raised the defense of qualified immunity against DeVargas's claim that they unlawfully discriminated against him on the basis of his ancestry and handicap in violation of 42 U.S.C. section 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
DeVargas limits his appeal to the following arguments: (1) thе defendants violated section 504; (2) the trial court erred by refusing to permit further discovery prior to ruling on the section 504 claim; (3) the defendants' application of IMD 6102 deprived DeVargas of his clearly established right to substantive due process of law under the fifth and fourteenth amendments; and (4) the defendants violated 42 U.S.C. section 1983.
II.
We first determine whether the Mason & Hanger defendants violated section 504, which prohibits discrimination against handicapped persons by "any program or activity receiving federal financial assistance." 29 U.S.C. Sec. 794. The district court granted summary judgment in favor of Mason & Hanger, concluding that liability could not lie against the Mason & Hanger defendants because Mason & Hanger's operations were not programs or activities that received federal financial assistance. DeVargas insists that the available evidence indicates that Mason & Hanger received federal financial assistance.
In our review of grants of summary judgment, we must reverse if there is a genuine issue concerning a material fact. See Celotex Corp. v. Catrett,
The term "financial assistance" is not defined in the Rehabilitation Act. We apply the ordinary meaning of the term and conclude that an entity receives financial assistance when it receives a subsidy. See Jacobson v. Delta Airlines, Inc.,
In determining whether a party has obtained federal financial assistance under section 504, we decline to scrutinize the fair market value of every transaction as if we were article III accountants. See id. at 1210 (outlining practical problems of a test based solely on fair market value). We do not read section 504 to declare that a contractor receives federal financial assistance whenever the contractor negotiates a contract with favorable terms that compensate the contractor at a rate above the fair market value. We agree with the Jacobson court's conclusion that "in determining which programs are subject to the civil rights laws, courts should focus not on market value but on the intention of the government " to give a subsidy, as opposed to government intent to provide compensation. Id. at 1210 (emphasis added). Wе conclude that to determine the applicability of section 504, we must determine whether the government intended to give Mason & Hanger a subsidy.
In this case there is little doubt that Congress did not intend to subsidize Mason & Hanger's operations. Prior to the decision to replace the former government guards with private employees, the DOE conducted a study which concluded that the government would save approximately $3.5 million by contracting out guard services. Moreover, the government awarded the contract to Mason & Hanger only after a competitive bidding process. Both of these factors lead us to conclude that there was no governmental intent to give Mason & Hanger a subsidy.
Our conclusion is consistent with departmental regulations. The Department of Energy's implementing regulations state that the provisions of the Rehabilitation Act do not apply to government procurement contracts, see 10 C.F.R. Sec. 1040.2(b)(3) (1985), which are defined as, inter alia, contracts to purchase services from nonfederal sources, see 41 C.F.R. Sec. 1-1.209 (1984) (former provision). Under this regulation, the purchase from Mason & Hanger of nonpersonal services is a procurement contract outside the reach of the Rehabilitation Act.5 We hold that the district court correctly granted the motion for summary judgment by the Mason & Hanger defendants on the grounds that the security company and its employees do not fall within the ambit of section 504 of the Rehabilitation Act.
III.
We next determine whether the district court correctly granted the individual LANL defendants' request for summary judgment on the section 504 claim.6 DeVargas argues that the individual LANL defendants are liable under section 504 because LANL, an alleged recipient of federal financial assistance, required Mason & Hanger to administer the allegedly discriminatory policy. The contract between the Regents and Mason & Hanger expressly required that Mason & Hanger abide by any applicable federal regulations relating to the security of LANL. One of the applicable regulations was IMD 6102, and DeVargas states that in 1983 the individual LANL defendants informed Mason & Hanger that IMD 6102 mandated that Mason & Hanger not hire DeVargas. DeVargas insists that the individual LANL defendants cannot escape liability for discrimination when they required Mаson & Hanger to administer the allegedly discriminatory policy.
The district court rejected DeVargas's argument on the grounds that section 504's ban on "discrimination under any program or activity receiving Federal financial assistance," 29 U.S.C. Sec. 794, was program-specific. Thus, the district court ruled that even if LANL did receive federal financial assistance, the actions of the LANL defendants did not violate section 504 because the particular program that allegedly discriminated against DeVargas was Mason & Hanger, not LANL.
At the time that the district court issued its ruling on DeVargas's 504 claim, the court correctly relied on Consolidated Rail Corp. v. Darrone,
After the district court issued its opinion, however, Congress enacted the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28 (1988) ("Restoration Act" or "Act"). Congress premised the Restoration Act upon its findings that (1) "certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and Title VI of the Civil Rights Act of 1964; and (2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered." Restoration Act Sec. 2,
Section four of the Restoration Act added section 504(b) to the Rehabilitation Act, which provides in pertinent part: "For purposes of this section, the term 'program or activity' means all of the operations of-- ... (2)(A) a college, university or other postsecondary institution...." Restoration Act Sec. 4,
DeVargas argues that the passage of the Restoration Act invalidates the district court's reliance on the program-specific interpretation of section 504 that existed prior to enactment of the Restoration Act. DeVargas renews his argument that the individual LANL defendants cannot escape liability under section 504 of the Rehabilitation Act when they required Mason & Hanger to perpetrate discrimination.
A.
It is clear that the individual LANL defendants are not liable under section 504 as interpreted by the Supreme Court in Consolidated Rail prior to the Restoration Act. Therefore, we must decide whether the Restoration Act retroactively applies to this case.
To determine whether the Restoration Act applies retroactively, we look to congressional intent. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, --- U.S. ----, ----,
We look first to the language of the Restoration Act. See Kaiser,
The Congress finds that--
(1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowеd or cast doubt upon the broad application of ... section 504 of the Rehabilitation Act of 1973 ...; and
(2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered.
See Restoration Act Sec. 2,
II. Purpose
S. 557 was introduced on February 19, 1987, to overturn the Supreme Court's 1984 decision in Grove City College v. Bell,
The Grove City ruling severely narrows the application of coverage of Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.
The purpose of the Civil Rights Restoration Act of 1987 is to reaffirm pre-Grove City College judicial and executive branch interpretations and enforcement practices which provided for broad coverage of the anti-discrimination provisions of these civil rights statutes.
S.Rep. No. 64, 100th Cong., 2d Sess. 2, reprinted in 1988 U.S.Code Cong. & Admin.News 3, 3-4 (footnote omitted; emphasis added). The Senate report also states that: "other cases that were in the formal enforcement stage are still in jeopardy. These are cases where discrimination has been found, voluntary compliance was refused, and recipients are using the Supreme Court's decision [in Grove City College ] as a defense against federal enforcement." S.Rep. No. 64, 100th Cong., 2d Sess. 11, reprinted in 1988 U.S.Code Cong. & Admin. News 13.
Considering both the language of the Restoration Act and the Senate report, we find a congressional purpose to overturn Grove City College, but no clear expression of intent regarding retroactive application of the Act's amendments. Unlike other congressional amendments to existing laws enacted by Congress in response to Supreme Court decisions, the Restoration Act contains no statutory language clearly stating that the Act's amendments shall or shall not apply to pending litigation.7 We also find that the exрressed congressional intent in the Senate report to "restore" section 504 to its pre-Grove City College interpretation reflects unambiguously only Congress's purpose to reverse the Supreme Court's program-specific reading of federal prohibitions on discrimination by programs or activities receiving federal financial assistance. Because we must find clear congressional intent to invoke retroactivity, we cannot read "restore" to mean "retroactively restore," particularly where the effect of such a reading would be to impose substantive liability for actions committed in reliance on Grove City College and its progeny prior to the passage of the Restoration Act in 1988. Contra Leake v. Long Island Jewish Medical Center,
We recognize that our holding conflicts with the decisions of the Second Circuit in Leake v. Long Island Jewish Medical Center,
The Second Circuit's opinion in Leake affirmed per curiam the reasoning of the district court in Leake v. Long Island Jewish Medical Center,
Plaintiff Robert Leake sued his employer under section 504 of the Rеhabilitation Act. The issue as framed by the district court was "whether the Restoration Act should be applied retroactively to enable plaintiff, who initiated his suit before its passage, to sue." Leake,
The Leake district court began its analysis by specifically finding that "the Restoration Act itself does not indicate any intent of Congress for retroactive application." Id. However, the court found some indication of congressional intent that courts were to retroactively apply the Restoration Act in the floor statement of the bill's sponsor, Congressman Edwards, who said "[t]his bill applies to all pending cases ...," 134 Cong.Rec. H583 (daily ed. Mar. 2, 1988), and the floor statements of Senators Packwood8 and Stafford.9 Leake,
We are not persuaded by the Leake district court's analysis for two reasons. First, Congress's intended meaning and use of the terms "restore" and "clarify" in the HCPA is rooted in the specific context of the HCPA's statutory language and legislative history. We therefore reject the notion that congressional intent for the Restoration Act may be discerned by analogy to a different statute enacted by a different Congress.
Second, where the statutory language of the Restoration Act and the Senate report simply do not address retroactive application of the Act, we refuse to resolve this important issue solely on the basis of the floor statement of Congressman Edwards that the Act was to apply to pending cases. See Brock v. Pierce County,
We next turn to the Fifth Circuit's opinion in Ayers v. Allain,
Retroactive application of a statute is appropriate when Cоngress enacts the statute to clarify the Supreme Court's interpretation of previous legislation thereby returning the law to its previous posture. This rule flows from two of the Supreme Court's canons of statutory construction. First, subsequent legislation declaring the intent of an earlier statute is entitled to great weight.... Second, the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.
Id. at 754-75 (footnotes omitted).
We disagree with the Ayers ruling because it resolves the retroactivity issue based on congressional intent implied from the circumstances motivating Congress to act rather than from the directly relevant statements of Congress in the statute's language or authoritative legislative history. The standard of "clear congressional intent" for the retroactive application of statutes requires articulated and clear statements on retroactivity, not inferences drawn from the general purpose of the legislation. We simply cannot derive a "clear congressional intent" solely from the circumstance that Congrеss acted to amend existing law in response to a Supreme Court opinion, particularly where Congress acting under the same motivating circumstances has expressly and specifically stated that its newly enacted amendment was to apply to pending cases. See supra note 7.
Moreover, the logic behind the Fifth Circuit's rule is inconsistent with the constitutional division of authority between Congress and the Supreme Court. Under our view of the separation of powers, it is Congress's prerogative to make the law by enacting legislation. It is, however, "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison,
There is nothing jurisprudentially unique about the situation where Congress amends a statute in response to the Supreme Court's interpretation. Regardless of whether Congress enacts a new law or amends an existing one, our analysis remains the same. We must examine whether Congress clearly and expressly intended the new law to apply retroactively, as shown by statutory language or authoritative legislative history. We will not imply such an intent where Congress chose to remain silent. For us to "imply" intent derogates from Congress's power to determine the retroactive effect of its own laws. Therefore, in the absence of such clear congressional intent, we apply the appropriate Supreme Court precedent setting forth presumptions governing the retroactive application of newly enacted legislation.
C.
Having determined that the language and legislative history of the Restoration Act do not evidence a clear congrеssional intent for or against its retroactive application, we turn to Supreme Court precedent for guidance. Our research reveals two lines of authority setting forth conflicting presumptions regarding the retroactive application of a newly enacted federal statute where congressional intent is unclear. The court's most recent articulations of these opposing presumptions are found in Bradley v. School Board of City of Richmond,
Bradley was the product of a protracted class action suit brought to desegregate the Richmond, Virginia school system. The court in Bradley addressed whether an appellate court should retroactively apply an attorneys' fees statute that came into effect during the pendency of the appeal. The district court had awarded attorneys' fees to the plaintiffs based on the court's general equitable powers. After the initial submission of the case to the Fourth Circuit Court of Appeals, but prior to that court's decision, Congress enacted section 718 of Title VII of the Emergenсy School Aid Act, 20 U.S.C. Sec. 1617, which granted federal courts the authority to award reasonable attorneys' fees in a school desegregation case. The Fourth Circuit held that section 718 could not be applied retroactively to sustain the attorneys' fees award. The Supreme Court reversed, holding that "a court is to apply the law in effect at the time it renders its decision...." Bradley,
In direct conflict with the Bradley presumption is another line of Supreme Court precedent, the most recent illustration of which is Bowen v. Georgetown University Hospital,
The Bоwen Court struck down the retroactive cost-limit rules on the ground that Congress had not authorized the Secretary in the Medicare Act to issue retroactive rules. In so doing, the Supreme Court reaffirmed the rule that "[r]etroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id.
The Supreme Court recently acknowledged that an "apparent tension" exists between the Bradley and Bowen lines of precedent in Kaiser Aluminum & Chemical Corp. v. Bonjorno, --- U.S. ----, ----,
Having found in Part III.A. of this opinion that the language and legislative history of the Restoration Act do not evidence a clear congressional intent for or against its retroactive application, we have struggled in vain to reconcile the Bradley and Bowen lines of precedent. We have concluded, however, that under the circumstances of this case the Bradley and Bowen line of cases are in "irreconcilable contradiction," see Kaiser,
We recognize the possibility that even where congressional intent on retroactivity is unclear, application of either the Bradley or Bowen presumption may result in the same outcome by virtue of Bradley 's "manifest injustice" exception. See supra note 10. However, we agree with Justice Scalia's observation in Kaiser that "[i]n the rules of construction they announce, if not in the results they produce, these two lines of cases are ... in irreconcilable contradiction." Kaiser,
Forced to elect between these contradictory presumptions, we choose Bowen. We find that the Bowen line of cases is well-entrenched in the history of the Supreme Court jurisprudence, whereas Bradley is largely unsupported by its cited authorities.
We are strongly persuaded by Justice Scalia's observation in his concurring opinion in Kaiser that the presumption of prospective application of statutes is supported by over 150 years of Supreme Court precedent, stretching from the early part of the nineteenth century to the middle of this century. See Kaiser,
In contrast with this long line of precedent, with the exception of Thorpe,
The rule that, absent clear congressional intent to the contrary, statutes are presumed to apply prospectively was uncontroverted until the Supreme Court decided Thorpe in 1969. See Kaiser,
The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument.... The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property, and to direct a restoration of that which is still in controversy between the parties.... In this case the sentence of condemnation was appealed from. It might have been reversed, and therefore was not such a sentence as in the contemplation of the contracting parties, on a fair and honest construction of the contract, was designated as a definitive condemnation.
Id. at 108-09. On this basis, the Court stated: "if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed...." Id. at 110. The Court's reference to a law which "intervenes and positively changes the rule which governs" must be taken in context. The terms of law before the The Schooner Peggy Court required retroactive application to "all property captured and not yet definitively condemned" by the courts. Thus, under the actual facts of The Schooner Peggy, a change in the law while a case was pending was applied by the Supreme Court where by its terms, the law was to be applied retroactively to pending cases, a position entirely in keeping with the Bowen line of cases. Thorpe marked the first departure from this long line of precendent when it broadened the rule set forth in The Schooner Peggy: "Thorpe thus stands for the proposition that even where the inter[vening] law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." Bradley,
We conclude that Thorpe rested its holding on cases that either offer no support for that proposition or lend support to the opposite proposition. Faced with a choice between the longstanding and authoritative Bowen line of precedent and Bradley, which has only Thorpe in support, we elect the presumption reflected in the more recent decision in Bowen that "[a] statute is deemed to be effective only for the future unless a contrary intent appears." Kaiser,
Our decision not to apply the Bradley presumption is supported by the Supreme Court's decision in Bennett v. New Jersey,
Although Bennett in part based its holding on the unique contractual nature of the obligations arising under the Title I program, the Court also concluded that "Bradley itself suggest[s] that changes in substantive requirements for federal grants should not be presumed to operate retroactively." Id. at 638,
[The Bradley ] holding rested on the general principle that a court must apply the law in effect at the time of its decision, which Bradley concluded holds true even if the intervening law does not expressly state that it applies to pending cases. Bradley, however, expressly acknowledged limits to this principle. "The Court has refused to apply an intervening chаnge to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional." This limitation comports with another venerable rule of statutory interpretation, i.e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect.
Id. at 639,
In this case DeVargas seeks to impose substantive liability on the LANL defendants in their individual capacities through a retroactive application of the Restoration Act to section 504. As in Bennett, we find compelling grounds for not invoking Bradley where to do otherwise would conflict the "venerable rule of statutory interpretation, i.e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect," Bennett,
IV.
We next address the remaining federal defendant, Gary Granere, the Acting Area Manager for the DOE's LANL office. DeVargas states that his "only claim against any federal defendant on this appeal is that Defendant Granere failed to adequately perform his duty to properly administer the University of California--Mason & Hanger contract and failed to properly supervise the state and private defendants." We are uncertain whether DeVargas intends this statement to relate to his section 504 claim. Assuming arguendo that DeVargas can bring a section 504 suit against a federal employee for nonintentional conduct, we conclude that the analysis applicable to the individual LANL defendants is equally applicable here. Prior to the Restoration Act, section 504 was program-specific and did not encompass the actions of Granere. We affirm the dismissal of DeVargas's claims against Granere.
V.
We rest our holding that the district court properly dismissed DeVargas's section 504 claim on the appliсable law and the intent of Congress. We therefore conclude that further factual development was unnecessary and that the district court did not abuse its discretion in rejecting DeVargas's request for further discovery under Federal Rule of Civil Procedure 56(f). See Patty Precision v. Brown & Sharpe Mfg. Co.,
VI.
We now address DeVargas's argument that the application of IMD 6102 constituted a deprivation of his clearly established right to substantive due process of law under the fifth and fourteenth amendments. In DeVargas I we rejected a similar argument: that the application of IMD 6102 violated DeVaragas's clearly established rights under the equal protection clause of the fourteenth amendment. See DeVargas I,
We engage in a similar analysis for a substantive due process challenge. See Oklahoma Ed. Ass'n v. Alcoholic Beverage Enforcement Comm'n,
VII.
Finally, we address DeVargas's claim under 42 U.S.C. section 1983. Because there is no violation of either section 504 of the Rehabilitation Act or substantive due process under the Constitution, no violation of law exists upon which DeVargas may rest a section 1983 suit. We hold that the district court properly dismissed the section 1983 claim.
VIII.
We AFFIRM the district court's grant of summary judgment in favor of the defendants.
Notes
The Honorable A. Sherman Christensen, District Judge, United States District Court for the District of Utah, sitting by designation
In November 1984, IMD 6102 was superseded by new regulations, which are codified at 10 C.F.R. Sec. 1046 (1989). DeVargas has not reapplied for employment following the promulgation of these new regulations. For this reason the district court rulеd that DeVargas lacks article III standing to argue that he is entitled to be hired by the defendants. DeVargas does not appeal this ruling
Congress subsequently abrogated any Eleventh Amendment defenses to a section 504 claim that is based on conduct occurring after October 21, 1986. See 42 U.S.C. Sec. 2000d-7
We note that the district court's ruling was not entirely correct. While the district court barred all claims for monetary relief, the bar on recovery of "money damages" contained in 5 U.S.C. section 702 does not include equitable backpay, which is a form of equitable relief, not monetary damages. See Bowen v. Massachusetts,
None of the defendants in this case argue on appeal that they are entitled to a qualified immunity defense from the section 504 claim
The DOE regulation is in accord with those of other executive agencies. For example, the regulations of the Department of Health and Human Services state that government procurement contracts do not convey financial assistanсe, while transfers or leases of government property at less than fair market value or for reduced consideration are forms of financial assistance. See 45 C.F.R. Sec. 84.3(h) (1989). See also 28 C.F.R. Sec. 41.3(e) (1989) (Department of Justice regulation)
At the outset we note that the individual LANL defendants are now before us only in their individual, as opposed to their official, capacities. Therefore DeVargas cannot obtain equitable backpay from the LANL defendants because government officials acting in their individual capacities cannot perform the official function of awarding backpay. See Lenea v. Lane,
Compare Restoration Act with Longshore and Harbor Workers' Compensation Act Amendments of 1984 ("LHWCA"), Pub.L. No. 98-426, Secs. 5, 28(a), 28(c), 98 Stat. 1639, 1641, 1655 (Sec. 5 codified as amended at 33 U.S.C. Sec. 905; Secs. 28(a), (c) discussed in legislative history notes to 33 U.S.C. Sec. 901) and Handicapped Children's Protection Act of 1986 ("HCPA"), Pub.L. No. 99-372, Secs. 2, 5, 100 Stat. 796, 796-97, 798 (Sec. 2 codified as amended at 20 U.S.C. Sec. 1415(e)(4); Sec. 5 discussed in legislative history notes to 20 U.S.C. Sec. 1415). See also H.R.Conf.Rep. No. 1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cоng. & Admin. News 2774 (Sec. 5 amendment of LHWCA disapproves Washington Metro. Area Transit Auth. v. Johnson,
During the floor debate to override President Reagan's veto of the Restoration Act, Senator Packwood stated: "all we have done is change the law back to what we thought it was. We have not expanded it beyond what we thought it was." 134 Cong.Rec. Sec. 2735 (daily ed. Mar. 22, 1988)
Senator Stafford, an original sponsor of section 504 оf the Rehabilitation Act, stated: "[the] institution-wide definition [was] originally intended by legislators." 134 Cong.Rec. Sec. 2739 (daily ed. Mar. 22, 1988)
To soften the potentially harsh impact of Bradley 's presumption favoring the retroactive application of federal statutes, the Court recognized two exceptions to the presumption that appellate courts are to apply the law in effect at the time of decision. First, the presumption does not apply where there is clear congressional intent to the contrary. Bradley,
Bradley held that courts are to determine whether manifest injustice exists by examining "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Bradley,
That judicial decisions operate retroactively lends no support to the argument that there is a presumption for retroactive operation of statutes. See United States v. Security Industrial Bank,
Because of our holding in this case, we need not resolve the open issue of whether section 504 permits the recovery of monetary damages for intentional discrimination. Compare Smith v. Robinson,