*1 Before FERGUSON, DUNIWAY and Circuit Judges, KELLAM,* District Judge.
DUNIWAY, Circuit Judge: We affirm the dismissal of this brought under 29 U.S.C. 794. I. Facts. alleges
Scanlon
that he suffers from dia-
betes mellitus and a lack of vision in one
*
Kellam,
The Honorable Richard B.
Virginia,
sitting
designation.
Senior Unit-
ed
Judge
States District
for the Eastern District
*2
of,
to discrimina-
subjected
be
graduate
job
a
benefits
a
as
he was denied
eye, that
activity re-
program
Hos-
tion under
State
Atascadero
student assistant
. . .
financial
Federal
this was discrimination
pital, and that
contrary
the Reha-
504 of
to §
Cen-
v.
Trageser Libbie Rehabilitation
to vari-
Act,
794 and
U.S.C.
bilitation
87, 89,
Inc., Cir.,
ter,
F.2d
hospital
The
statutes.
ous California
private action
a
decided that
Fourth Circuit
argu-
complaint,
dismissal of the
moved for
discrim-
redress
794 to
under §
employ-
apply to
(a)
794 does not
ing
that §
pri-
be
unless
cannot maintained
objec-
unless
ment discrimination
mary objective
financial as-
is to
assistance
the federal financial
tive of
provide employment. The
sistance is to
(b) that Scanlon’s
employment, and
provide
followed.
Second and
Circuits have
Amend-
by the Eleventh
claims were barred
Center, 2
Medical
United States
Cabrini
argument
rejected
The district court
ment.
908;
Cir., 1981,
Metropol-
F.2d
Carmi
(b),
on
accepted argument
(a) but
Cir., 1980,
District,
itan
Louis Sewer
St.
794 claim
ground dismissed
Reynolds
Simpson v.
granting a motion rule to dismiss under F.R.Civ.P., 12(b)(6), with it a carries FERGUSON, dissenting: Judge, Circuit 15(a),
to amend under rule not and thus is appealable Here, an final judgment. how My analysis of the Rehabilitation ever, ruling cura ground on a not Act, of the 1978 to that Amendments amendment, ble and it is clear that the and of the and administrative dispose court intended to of the action. See interpreta- material guide which should our Cir., Scott v. Eversole Mortuary, 9 522 tion of that Act me that convinces appealable. The order is majority’s in error. decision this case is However, the better practice would have Accordingly, I dissent. judgment been to enter a of dismissal.
The issue in this case is whether Con-
amending
gress, by
Act
“remedies,
III. The Merits.
proce-
to “make available” the
dures,
rights set
forth in Title
ground
affirm on
We
limited,
1964,”
actually
Civil
Act
not
a claim
complaint does
and cannot state
that were
a drastic
the remedies
granted. We do
upon which relief can be
persons
already
available to
un-
applicability
not reach
support
504 of the Act. No
for such
of the Eleventh Amendment.
view can be found in the
in the
as
pertinent part
794 now reads in
U.S.C. §
or in
relevant
follows:
and administrative
materials.
only support that
is the decision of
in-
exists
qualified handicapped
No otherwise
States,
Fourth Circuit in
v. Libbie
dividual in the United
as defined
Center,
706(7)
title, shall, solely Rehabilitation
in section
1979).
decision,
Neither that
nor those of
handicap,
reason of his
excluded
it,
in,
participation
the other courts that
can
from the
be denied
have followed
Act”]
1. Rehabilitation
of 1973
[“the
1978 Amend-
[“the
505(a)(2),
ments”],
794a(a)(2),
120(a).
29 U.S.C.
as amended
by Comprehensive
Services
Rehabilitation
Resources,2 by
and Human
tee
Labor
scrutiny.
Trageser decision
withstand
Justice,4
HEW,3
Department of
by the
by the Senate Commit-
has been criticized
4. As
forcement
Comments
agencies.
Guidelines
signed
Appendix
footnote
mulgated
They
stated that
§§ 42.501-.540
(1979).
original
cies, and directed those departmental
to “issue
Order 11914
individuals be empowered
of
tary
crimination
tablished
eral
funds
gardless
sistent
General
tion,
S.Rep.No.316,
conform to
new
thority
“[Trageser]
partment’s
crimination
thority.
sede the Guidelines.
These
employment
two courts of
courts have construed
capped
Federal
view.
cert.
L.Ed.2d
St. Louis Sewer
tion Center,
rest
cedures,
Civil
persons
lations.
islative
Response:
Comment:
HEW
District Court
of
and Welfare.”
transferred
of
were
[Trageser
policy
received
revoked Executive Order
solely
responsibility
[672]
with
HEW to coordinate
den.,
guidelines
1980,
[Trageser]
to
of the
by
rules,
See
has construed section
B
by
of
Rehabilitation
persons
Executive Order
318]
history
aggrieved
and
If and when
[now
supra.
developed
financial
Accordingly,
accept
continuing
(1980)],
in violation
all federal
the standards
will
(1976),
on the
controlling judicial decisions,
current
the Secretary
Executive Order
complaints
is not consistent
Inc.,
96th
The
Recommendations
Commenters
regulations,
]
by
(1979);
appeals
discrimination.
designated
codified
this
be
from HEW
the
U.S. 947 [99 S.Ct.
to the
In his
District,
or resolve
Attorney
the
in all
deserve
Cong., 1st Sess. 13
Guidelines
court’s
announced
because of section 504
which directed the
for
assistance.
authority,
interpretation
set forth
federal
alleged
intent
departments
that “the
employer
F.2d 87
have taken a narrower
Fed.Reg.
Carmi v.
response
“in the
it must be revised
under Section 504.
at 45 C.F.R.
analysis
coordinating
coordinating
of [section
section
contrary,”
shall
programs
and procedures
and
decision appears
use of the
No.
suggested that un-
of
special
Libbie
attorney
bring
General
that handicapped
departments
1980)
employment
implementation
reflect
...
be available”
Health,
and will super-
directives, con-
504 to prohibit
absence
79-1325,
see 28 C.F.R.
section
.
title
in question.”
17168,
of rules
on Proposed
Metropolitan
(1980).
. .
has
suit
Rehabilita
deference.
of
and
Congress’
Executive
To
the court
receiving
Attorney
504],
VI of
to cover
was as-
Part
function
the De-
the en-
general
Several
Federal
no au-
its au-
Educa-
(1980),
(1979).
handi
Secre-
17174
1976),
date,
[620]
Fed-
pro-
See
pro-
vio-
the
84,
leg-
es-
*3
re-
to
erally
Nondiscrimination
forced within the Fourth and
and Executive Order
Section 504 of
unless
sions
ments, HEW’s administrative
respect
added)
the remedial
tion Amendments
tices of recipients
view
dures under section 504.
(1978)),
ment codifies
partment
ance
under
ment
Rehabilitation
mulgated
95th
respect
S. 2600
May 15,
statutory
the attention
Senate
partment’s
of
ratification
890,
Cong.,
Further,
23-29,
Rep.No.95-1149,
93-319,
(1978);
the remedial
vide broad
120(a),
Cong.,
Act Amendments
held that section
ment discrimination.
limitations of Title
persons.
sons. Nor
reflect
for
tive
1973 and its
Section
section
relating
the
regulations
Assisted
is the
95th
are covered
view
Cong.,
(§§
histories
view of
of
the primary
section 504 conform with those pro-
2d Sess. 80-81,
34, 38, 42^3
1st Sess.
the
employment problems
Committee
to section
(95th Cong.,
the Senate version of
93d
Health, Education,
employment.
42,510-42,513).
believes that
the
was not
requirement.
under
Cong.,
120(a)
history
504,
H.R.Conf.Rep.No.95 1780,—
procedures,
See,
did the
proposed
continuing
to employment
committee’s
2d Sess. 19
protections
Cong.,
of
in its
subsequent
nature
of
purpose
The analysis
apparently
Programs
legislative
existing
Act
of
but
promulgated
HEW’s
Title VI.
was
the
2d Sess.
Based
e.g.,
18-19,
95th
Rehabilitation
of Federal
intended
the Rehabilitation
120(a):
of 1978
analysis,
of 1978 reported
court consider
on Human Resources
1st Sess.
objective
was
section
assistance,
Committee
originally
section
regulations
coverage
(1978);
Id. at 89.
Cong.,
S.Rep.No.93 318,—
of section
congressional
practice
—
94-96, 98,
remedies,
on Handicap
70
section 504
to
Sess.,
(Sen.Rep.No.95-890,
Implementation
enforcement
(1978).)
amendments,
understanding
was not
8, 13, 20-21, 27,
history
Thus,
(1973);
indicates
and Welfare
handicapped
to limit the
Carmi,
would
goes
incorporated
2,
did
Fed.Reg. 37620,
financial assist-
2d
by the Depart-
120(a),
history
of
the Rehabilita-
S.Rep.No.
section
8
a provision
as
construction,
as a specific
regardless of
and the
not
handicapped
Act
Sess.
stated,
(1973);
this amend-
504
reflect
102
the
and
brought
to employ-
of section
(Emphasis
not be
legislative
the provi-
S.Rep.No.
focus
Circuits
of 1973
to note
concern
amend-
in Fed-
by
to
legisla
Act
(1978).
16,
proce
118(a)
rights
which
scope
prac-
with
95th
H.R.
pro
per
De-
De-
95-
93d
the
en-
18,
36
to
of
subject to discrimina-
of,
fol-
not be
benefits
It should
commentators.5
activity
any program
tion under
by this court.
lowed
financial
Federal
I. BACKGROUND.
added). Notably,
(emphasis
29 U.S.C. §
Act.
A.
subject
or be
not read “. . .
the statute does
the Act
than
other
to discrimination
“any pro-
against the
nation
discrimination,”
include
nor does it
financial
receiving Federal
activity
gram or
pur-
characterizing the
words of limitation
794. Prior to
assistance.” 29 U.S.C. §
funding must have
pose which the federal
Amendments, this
enactment of the 1978
504 are
guaranteed
before
section
been held to create a
had
Furthermore,
primary focus
available.
of action for individuals
Act was
employment discrimination on the basis
“to see
Its
handicapped.
See, e.g.,
v. Board of
handicap.
Whitaker
do re-
individuals
[handicapped]
that these
Education,
Higher
106-08
*4
need, particu-
they
that
ceive the services
(E.D.N.Y.1978);
Philadelphia
Drennon v.
are made
efforts
larly that maximum
809, 815-16 & n.6
Hosp.,
Gen.
428
them.”
for
goal
develop a vocational
Health,
(E.D.Pa.1977).
Department
18, re-
Cong., 1st Sess.
S.Rep.No.318,
Education,
regula-
had issued
and Welfare
Ad.
Cong. &
U.S.Code
printed in [1973]
prohibit
implementing
tions
§
that
achievement
News
against
discrimination
existence
impeded by the
plainly
goal is
handicapped by
recipients
fi-
all
of federal
in either
hiring practices
discriminatory
E.g.,
nancial
45 C.F.R.
84.11
§
sector,
would be
and it
public
private
or the
noted,
(1977).6
analysis
HEW also
in the
such
Congress to condone
indeed for
odd
regulations,
its
law
the existence of case
administered
programs
discrimination
holding
private right
that
504 creates a
§
help
federal funds.
with the
App.
subpar.
of action. 45 C.F.R.
A
84§
and Title
The 1978
B.
(1977).
The conclusion reached
all of
Ash,
recognized,
The courts
under Cort
authorities,
these
that
em-
§
U.S.
95 S.Ct.
45 L.Ed.2d
ployment
against the handi-
discrimination
private
that
had intended
capped by every recipient of federal finan-
right of action to enforce the substantive
assistance,
cial
supported
is
Region
Lloyd v.
specified in
504.7
§
and clear intent of the Act itself. Section
1277, 1284—
Transp. Authority,
al
provides:
However,
1977).
the 1973 Act
handicapped in-
qualified
No otherwise
department and
States,
spell
did not
out federal
as defined
dividual in
United
shall,
title,
solely agency procedures adequate to secure the
706(7)
in section
of this
guaranteed,
it
handicap,
reason of
be excluded enforcement of the
his
in,
participation
be denied
to enforce
from the
and federal
were slow
(1977).
part applies
Comment,
E.g.,
Employment
45 C.F.R.
84.11
Discrimination
recipient
Against
Handicapped:
of Federal financial assistance
Re-
“each
Can
Health,
and
peal
from
Education
Right
Action? 54 N.Y.U.L.
the Private
activity
program
Welfare
each
or
that
and to
(1979).
Rev. 1173
receives or benefits from such assistance.”
(1)
shall,
qualified handicapped
person
ap-
No
is no
§ 84.2. There
subjected
handicap,
pur-
the basis of
plication
programs
where
§of
84.11
pro-
discrimination in
under
funding
employment.
pose
the Federal
is
gram
activity
part ap-
response
or
to which this
regulations
altered in
These
were not
plies
(3)
recipient
....
A
shall make all deci-
amendments.
See
C.F.R.
to the 1978
concerning employment
any pro-
sions
under
84.2,
(1980).
§§
84.11
gram activity
part applies
to which this
recently
noted:
Tenth Circuit
a manner which
that discrimination
ensures
“Every
appeals
and district
court of
handicap
on the basis of
does not occur
many,
considered
which have
there have been
may
limit,
classify appli-
segregate,
not
held that a
have
employees
any way
adversely
cants or
(sic) Pushkin
the statute.”
action exists under
opportunities
affects their
or status because
Colorado,
University
Regents
handicap.
cases).
1981) (collecting
Comment,
indeed it
rights.
Employment
over at
those
carried
all
See
Amendments.
Handicapped,
court
Against
Discrimination
held
that the
604 limitation is
enough
broad
(1979)
N.Y.U.L.Rev.
[hereinafter
its customary Title VI field of action to cut
“Employment
cited as
Discrimination”].
off all remedies available under Title VI
Linn,
also
See
Uncle Sam Doesn’t Want
applies
when it
all.
It held that
Entering
Stronghold
You:
the Federal
limitation was
over
carried
in the same
Employment
against
Discrimination
Handi-
broad form
the 1978
capped Individuals, 27 De Paul L.Rev. 1047
amended,
that,
concluded
as
result,
Congress,
As a
first
remedy
no
discrimination
for
Ford,
then President
directed federal
provided
is
unless the federal
to promulgate enforcing
cies
regulations.
employment program.
of an
Discrimination,
Employment
supra, at 1192.
court
Analysis shows that
The resulting regulations did not distin-
step
syllogism.
of its
wrong
in each
guish among federally
programs
funded
its
construction
Trageser wrong
is
broad
the basis of
of the federal fund-
context,
ing.
Instead,
wrong
604 in the Title
against
prohibited
over to the
in all
was carried
limitation
programs. See,
such
e.g., 45 C.F.R.
84.11
the 1978 Amend-
Rehabilitation Act
(1977). Congress subsequently enacted the ments,
its
wrong
conclusion
amendments,
were
for discrim-
there is no
codify as
statutory requirement
the “ex-
pro-
handicapped in a
isting
practice”
HEW
embodied in
regu-
gram
funds unless the
receiving federal
*5
lations at 45
parts
C.F.R.
85. S.Rep.No.
employ-
is
an
of those funds
890, 95th Cong.,
2d Sess.
U.S.Code
program.
ment
Cong.
&
p.
Admin.News
7312. As
II. THE
TRAGESER INTERPRETA-
noted,
already
language
of that enact-
TION OF THE 1978 AMENDMENTS
ment
procedures
“made
available”
IS INCORRECT.
Title VI to aid in the enforcement of
§
A. The Section 604 Limitation to Title
VI,
Title
racial
Not
Remedies Does
Limit the Pri-
federally
programs, pro-
nation in
funded
Right
vate
of Action for Race-Relat-
remedy
vides as its most
a cutoff
dramatic
ed Employment Discrimination.
offending program.
of federal funds to an
enacted,
When
sponsors
Title VI was
VI also
U.S.C.
2000d-l. Title
contains
§
clearly perceived
crucial
distinction be-
by
which limits enforcement
tween the substantive
it codified and
in
agency
department
or
the event
the remedy
provided.
it
That substantive
discrimination based
right,
individuals,
belongs
to
can be
“Nothing
subchapter
race:
contained
this
by private
remedied
or administrative ac-
shall be
action
construed to authorize
tion.
subchapter
department
by any
this
or
emphasized that indi-
Humphrey
Senator
cy
respect
employment practice
with
any
to
to enforce their
go
viduals can
to court
any employer,
agency,
rights
remedy of
and that
organization except
labor
where a
simply
termination
one method for
objective of the Federal financial assistance
method
enforcing Title VI
provide employment.”
is to
604 of
—“the
governmental
for . . .
and activ-
the Civil
U.S.C.
ities covered
Senator
2000d-3.
§
statute].
[the
Humphrey’s view
supported
Case
Senator
principal
today
to
presented
issue
us
that
established
the substantive
whether the
addi-
“are not limited
explicitly making
to
tion
available to
§
provisions].”
words of
remedial
[its
VI,
claimants the
of Title
also
remedies
Discrimination, supra,
N.Y.
Employment
carried over the
on Title VI rem-
limitation
1189, citing
Cong.Rec. 5255
U.L.Rev.
edies effectuated
604. The crucial
§
added).
that
(1964) (emphasis
secondary
proper scope
issue
concerns
If
face of
context,
plain
§
that
limitation in the
if
tinction is
§
by using
language
purports
Congress
604 to elimi-
had intended
“make
available” the remedies of Title
nate
under Title VI for em-
all remedies
Congress actually
deprive
except where the
ployment discrimination
remedy.
of a crucial
The Tra-
employ-
funding is
court,
geser
apparent attempt
in an
to side-
ment, it
simply
could
legislated
have
step
objection
analysis,
this obvious
to its
nothing in Title VI “shall be construed to
opined
withdrawing any
that rather than
authorize action under this subchapter with
” previously
respect
available
the 1978
any
employment practice. . . .
But
“simply
plausible
Amendment
is not
confirms
says.
what
says
that nothing
reading
originally
Title VI
504 as
enacted.”9
“shall be construed
to authorize
reading
action under
subchapter
this
590 F.2d at
I
that the
doubt
any department
agency
respect
proposed by
plausible
court is
”
any employment practice.
language
. . .
nothing
even when
but the bare
U.S.C.
(emphasis
§ 2000d-3
added).
of the 1973 Act is
When the
considered.10
any analysis,
without
simply
gloss
read
and administrative
these words out of the statute.8
considered,
The Ninth
viewed above is
Circuit has never
question.
ruled on this
I
reading
original
utterly
of the
statute is
persuaded
am not
that we should defer
implausible.
the “reasoning” of the Trageser court on
Aside
language
from the clear
of the
point,
this
because I do not
find
reason-
amendment,
there is another
reason to
ing in Trageser
point.
on this
I would
doubt that
meant to limit
adhere
plain
to the
statute,
way Trageser
it
concludes
did.
and hold that the
limitation on Title
deprive persons
limitation of
604 does not
VI only applies to enforcement
actions
remedy.
under Title VI of a
Vic
federal agencies and departments. When
racially
tims of
based
discrimi
§ 604 is read in
clearly
it is
not a
nation will still have a
under Title
bar to
present
if,
even
as I VII,
employer
unless the
has
doubt, its limitation is to
applied
employees.
fewer than fifteen
42 U.S.C.
actions under the Rehabilitation Act.
2(a)(1),2000e(b).
left un
Those
2000e—
B. The 1978Amendments Did Not Make protected by
may
Title VII
have a
still
*6
Limitation on Title VI En- private action under Title VI.11 See Can
forcement Applicable to
504.
677,
University Chicago,
non v.
of
441 U.S.
The language
710-16,
1946, 1964-67,
L.Ed.2d
S.Ct.
gives
no
Congress
clue that
(1979); Comment, Employment
Dis
believed it
was
existing
reme-
crimination, supra,
at 1185—
N.Y.U.L.Rev.
dies under
504.
simply
makes no sense
contrast,
In
Title VII does not cover
Trageser
opinion
Other courts
court states
its
have known better. The
provide
judicial remedy
County,
“Title VI does not
a
Circuit
observed in Simon v. St. Louis
Mo.,
316,
(8th
1981),
discrimination
656 F.2d
institutions
319 n.6
Cir.
Dist.,
Metropolitan
(1) providing
Carmi v.
federal funds unless
em-
St. Louis Sewer
672,
1980),
ployment
objective
620 F.2d
674-75
is a
aid,
reasoning
adopts
holding
(2)
follows the
discrimination in
neces-
Trageser,
sarily
“limited
against
pri-
what had been construed to
causes discrimination
private right
be a broader
mary
action under sec-
beneficiaries of the federal aid.”
”
tion 504 . . . .
(footnotes omitted).
F.2d at 89
One of the
cases cited does hold that
604 limitation
10. Civil
statutes are to be construed as
applies
private
under Title VI.
actions
Qui-
broadly
language permits.
as their
Griffin v.
City
Ana,
1138,
roz v.
of Santa
FEP
Cases
88, 97,
1790,
Breckinridge, 403 U.S.
91 S.Ct.
(C.D.Cal.1978).
reasoning
It offers no
1796,
(1971);
handicap discrimination, so noted in only Judge As Orrick federal blunderbuss. remedies Alameda, available are provided by those County Hart Act. The doc- single (N.D.Cal.1979), “there is not trine leaves victims of discrim- history support word [an without federal all. Congress to restrict inference that intended by importing the scope of Section history of Title VI—which indeed, commonly 604]; referred to as the “cut-off- restrictions the-funds clearly title” —shows that Con- overwhelming impression created gress endanger impor- was anxious not to 1978 Amendments legislative history of the tant programs by federal an over-liberal expand Congress is that use of this drastic remedy when other reme- Act.” remedies available racially dies for based CONCLUSION readily See, nation were e.g., available. Hearings on H.R. 7152 Before the House eliminating goal of discrimination Comm, Rules, Cong., 88th 379- Sess. one, handicapped is a laudable (1964) (Remarks Poff); Rep. id. at major Congress one has taken (Remarks Rep. Avery). 197— today decides steps to reach. The court Congress tempered the remedies of anti- goal. doing, turn its back on this so legislation preserve clear court flies in face goals of other important programs. plain Act and the of the Rehabilitation By reading 604 to exclude all understanding intent agency action, rather than simply and then I am enacting amending that statute. importing this exclusion broadened into the compelled to therefore dissent. Act, “reason- ing” mockery Congress’s makes careful approach. measured point This put by well Judge McMil-
lian, concurring in v. Metropolitan Carmi Dist.,
St. Louis Sewer 1980). He wrote: Even interpreted if 604 is to restrict COMPANY, BRISTOL LOCKNUT individual actions under Title it does Plaintiff/Appellee/Cross-Appellant, not follow that a similar restriction exists on individual actions under the Rehabili- tation encompasses a different TECHNOLOGIES, INC., SPS statutory kind of than scheme the Civil Appellant/Cross-Appellee. Defendant/ Rights Act of 1964. ... In the Civil 80-5234, 80-5236, 80-5240 CA Nos. the restriction indi- and 80-5241. vidual actions under Title VI *7 means proceed individuals must un- Appeals, Court of United States der Title VII employment dis- Ninth Circuit. race, crimination origin, based on national religion. Under Argued Oct. and Submitted Act, restriction of individual actions un- Decided 794a(a)(2) deny would 28,1982. June Rehearing Denied at all many victims of discrimination. (McMillian, J., at 679-80 concurring). In the context of operates
circumscribe, in a considered
choice of remedies available for discrimina-
tion in violation of that title. con-
text of
applied Trageser-style, operates as a