KEVIN SPENCE v. EDWARD STRAW, ADMIRAL, Director of the DEFENSE LOGISTICS AGENCY of the U.S. Department of Defense
Nos. 94-1866 and 94-1916
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 10, 1995
Submitted Under Third Circuit LAR 34.1(a) March 27, 1995
Jablon, Epstein, Wolf & Drucker
The Bellevue
Broad Street at Walnut
Ninth Floor
Philadelphia, PA 19103
Attorney for Appellant
Richard Mentzinger, Jr.
Karen E. Rompala
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
LEWIS, Circuit Judge.
In this case we are required to evaluate whether a party suing under section 504 of the Rehabilitation Act of 1973,
I.
Because this case comes to us upon grant of a motion to dismiss, we accept all of the plaintiff‘s well-pleaded facts as true. Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977). According to the recitations in the amended complaint, the following facts comprise this dispute.
In early 1992, Kevin Spence applied to the Defense Logistics Agency of the Department of Defense (“DLA“) for the position of “Sewing Machine Operator (Single Needle).” He passed the DLA‘s competency examination with a score of 85. The DLA promptly provided Spence with a Notice of Rating, which confirmed his score and declared him eligible for the sewing machine operator position. On April 23, 1992 Spence passed the physical examination required for hire. After passing another performance examination on June 2, 1992, Spence was notified by the DLA that he had “been tentatively selected for a permanent position of Sewing Machine Operator, W-3.”
However, on June 24, 1992 Spence was required to take an eye examination, and he failed. The test showed that his approximate vision in both eyes was 20/50, and the DLA required sewing machine operators to have at least 20/20 vision in one eye and 20/40 in the other. Because he had failed the eyе examination, Spence was informed that the
Spence filed a pro se complaint against the DLA in June 1992. The DLA moved to dismiss that complaint, but that motion was denied because the DLA had not served counsel which had been appointed to assist Spence. When a second motion to dismiss was properly filed and served, the pro se complaint was dismissed without prejudice in March 1994 on the ground that it did not with specificity set forth a cause of action under the Rehabilitation Act. The district court noted, however, that new counsel had recently been appointed for Spence, and that it was likely that this counsel would be able to set forth Spence‘s concerns in a manner providing adequate notice to the DLA of the nature of plaintiff‘s claims. Thus, Spence‘s new counsel was allowed 30 days to file an amendеd complaint.
This was done. In the amended complaint, from which our factual recitation is gleaned, Spence sued Admiral Edward Straw (“Straw“), Director of the DLA, in his official and individual capacities, premising jurisdiction upon
Count Two of the amended complaint alleged that the DLA denied Spence equal protection under the Due Process Clause of the Fifth Amendment by singling him out and unnecessarily differentiating him because of his vision handicap. Furthermore, Spence contended, the DLA‘s actions were arbitrary and irrational, because Spence had passed the requisite performance test showing that he could perform the job of sewing machine operator.
Straw filed a motion for summary judgment upon and dismissal of the amended complaint on two grounds: (1) Spence failed to exhaust administrative remedies on his claim in Count One under section 504 of the Rehabilitation Act prior to filing suit, and the amended complaint is now time-barred; and (2) Spence‘s cоnstitutional claim in Count Two should be dismissed because the Rehabilitation Act provides exclusive, preemptive remedies for a plaintiff pursuing handicap discrimination claims. The district court agreed, and in a memorandum and order filed in August 1994, the district court granted Straw‘s motion to dismiss the amended complaint with prejudice (and dismissing the motion for summary judgment as moot). Spence timely appealed, and we have jurisdiction of the district court‘s final order under
II.
We еxercise plenary review over a district court‘s dismissal of a complaint for failure to state a claim upon which relief can be granted. Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). Accepting as true all well-pleaded facts in the plaintiff‘s complaint (D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1367 (3d Cir. 1992)), the relevant inquiry is whether under any reasonable interpretation of those allegations the plaintiff may be entitled to relief (Holder v. City of Allentown, 987 F.22d 188, 193 (3d Cir. 1993)). We apply this standard to both of the district court‘s central holdings below, first discussing exhaustion of remedies prior to suing for violation of section 504, and then turning to the question of whether the Rehabilitation Act provides the exclusive means of raising allegations of discrimination on the basis of handicap by federal agencies.
A.
1.
Congress passed the Rehabilitation Act of 1973 in part “to promote and expand
As originally drafted the Rehabilitation Act required federal agencies to submit affirmative action plans for handicapped individuals (section 501(b), codified at
Congress filled this gap in 1978, with the Senate and House adding different language to what became the Rehabilitation Act amendments of that year. See Prewitt v. United States Postal Service, 662 F.2d 292, 301-04 (5th Cir. 1981) (discussing 1978 amendment process in detail). The Senate‘s contribution focused on provision of a new section in the Rehabilitation Act -- section 505, codified at
[t]he remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (
42 U.S.C. 2000e-16 ) [Title VII], including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)), shall be available with respect to any complaint under [29 U.S.C.] section 791 [Rehabilitation Act section 501] of this title . . . .
Section 505(a)(1), codified at
Section 505(a)(2), in turn, provided a private cause of action for handicapped individuals against providers and recipients of federal assistancе, stating:
The remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 [
42 U.S.C. § 2000d et seq. ] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [29 U.S.C.] section 794 of this title [Rehabilitation Act section 504].
Section 505(a)(2), codified at
At the same time the Senate was focusing on new section 505, the House “extended section 504‘s proscription against handicap discrimination to `any program or activity conducted by an Executive agency or by the United States Postal Service . . . ‘” Prewitt, 662 F.2d at 302. In short,
by its 1978 amendments to the Rehabilitation Act, Congress clearly recognized both in section 501 and in section 504 that individuals now have a private cause of action to obtain relief for handicap discrimination on the part of the federal government and its agencies. The amendments to section 504 were simply the House‘s answer to the same problem that the Senate saw fit to resolve by strengthening section 501 [by adding section 505]. The joint House-Senate conference committee could have chosen to eliminate the partial overlap between the two provisions, but instead the conference committee, and subsequently Congress as a whole, chose to pass both provisions, despite the overlap.
Because of the less than artful manner in which Congress amended the Rehabilitаtion Act, the statutory provisions produce an apparently incongruent enforcement scheme. Federal agencies may, by the terms of the Rehabilitation Act, be sued for violation of either section 501 or 504 of the Act. If a party sues a federal agency for violation of section 501 by pursuing a claim under section 505(a)(1), Title VII remedies are “available.”
However, an aggrieved party may also sue a federal agency for violation of section 504 -- which Congress amended in 1978 to prohibit discrimination by federal agencies -- by pursuing a claim under section 505(a)(2). Section 505(a)(2), however, states that the “remedies, procedurеs, and rights of Title VI” -- and not Title VII -- are available.
Spence argues that since he sued the DLA for violation of section 504, Title VII remedies were not available to him and need not have been exhausted. Appellant‘s Br. 11-12. Furthermore, he correctly notes that although we have not directly ruled on the issue of whether Title VI remedies must be exhausted before suit may be brought to enforce section 504, we have ruled that exhaustion of remedies is not required whеn a claim is brought pursuant to Title VI. Id. 12, citing Chowdhury v. Redding Hospital & Medical Center, 677 F.2d 317 (3d Cir. 1982). Thus, Spence concludes, he did not have to exhaust any administrative remedies before filing suit.
However, we reject Spence‘s analysis, having been particularly persuaded by Judge Posner‘s lucid statutory construction of the Rehabilitation Act in McGuinness, a case closely analogous to the one before us. In McGuinness, an applicant for a job as a postman with the Milwaukee office of the United States Postal Service was rejected on the ground that his flat feet and hammer toes rеndered him physically unfit for the job. He appealed his rejection to the general manager of the Postal Service‘s employee relations division, but when he was told by the general manager that the decision was final, he did not “take the next step open to him, which would have been to consult with the Postal Service‘s equal employment opportunity counselor, followed (if necessary) by the filing of a formal complaint.” McGuinness, 744 F.2d at 1320.
Instead, McGuinness sued the Postal Service, seeking damages and the next available postman vacancy. The district court dismissed McGuinness‘s complaint and, significantly, refused to permit him to amend the complaint to state a claim under section 505(a)(1) because he had failed to exhaust his administrative remedies. On appeal, the Seventh Circuit affirmed the district court‘s dismissal, modifying it only to make clear that dismissal was without prejudice to McGuinness “bringing a new suit if and when he exhausts his аdministrative remedies.” McGuinness, 744 F.2d at 1321.
McGuinness argued that he did not have to exhaust administrative remedies because his suit was being asserted under section 504, rather than 505(a)(1). However, the court of appeals rejected that contention in language that is applicable here:
Although section 504 has been held applicable to employment discrimination as well as other forms of discrimination against the handicapped by recipients of federal mоney . . . it is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501, would have done so again a few sections later in section 504. Moreover, as McGuinness himself is quick to point out, section 505 does not make Title VII remedies available to people complaining of a violation of section 504; instead, in subsection (a)(2), it makes Title VI remedies available to them. McGuinness made
no attempt to exhaust Title VI remedies either. Now it is true that he probably would not have been required to do so even if section 504 were applicable to his claim. Title VI remedies -- which involve things like cutting off federal funds to the discriminator -- are not designed to help individuals . . . . But that is beside the point. The point is that it would make no sense for Congress to provide (and in the very same section -- 505(a)) different sets of remedies, having different exhaustion requirements, for the same wrong committed by the same employer; and there is no indication that Congress wanted to do this -- as of course it could do regardless of what might seem sensible to us -- when it added section 505 in 1978.
McGuinness, 744 F.2d at 1321 (citations omitted). The Seventh Circuit concluded that either an individual should not be permitted to sue a federal agency under section 504, or alternatively that an individual аsserting a claim based upon section 504 must first exhaust Title VII remedies. Id. at 1321-22.
We note that although our sister circuits have not been entirely consistent in the manner in which they have reached the ultimate result, the Seventh Circuit‘s resolution of the exhaustion issue in McGuinness is consistent with other courts of appeals that have faced the question of whether a plaintiff must exhaust Title VII remedies before bringing suit under section 504. One court of appeals has explicitly ruled that an individual may sue a federal agency or the Postal Service only under sections 501 and 505(a)(1). See Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985). Other courts of appeals have found that if a litigant sues a federal agency under sections 504 and 505(a)(2), he or she must satisfy Title VII remedies so as not to evade the remedial scheme developed by Congress in the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981); Smith v. United States Postal Service, 742 F.2d 257 (6th Cir. 1984); Morgan v. United States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir. 1986); Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990). Finally, in Milbert v. Koop, 830 F.2d 354 (D.C. Cir. 1987), the District of Columbia Circuit determined that it need not decide whether suits by individuals under sections 504 and 505(a)(2) are barred, but noted that courts that had allowed suits under those provisions had required exhaustion of Title VII remedies prior to suit, and strongly suggested plaintiffs suing federal agencies for handicap discrimination in the future “seek relief under section 501 rather than under section 504.” Id. at 357. After examination of this case law, and adopting Judge Posner‘s analysis in McGuinness, we conclude that a plaintiff must exhaust Title VII remedies before bringing suit under sections 504 and 505(a)(2) of the Rehabilitation Act, just as he or she must before suing under seсtions 501 and 505(a)(1) of the Act.1
The DLA argued to the district court that under the regulations governing the filing of discrimination complaints with the DLA, Spence had 45 days from the date of the alleged discrimination in which to contact an Equal Employment Opportunity counselor at the DLA. Joint Appendix (“J.A.“) 67, citing
when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known [sic] that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency . . . .”
The district court dismissed Spence‘s section 504 claim for failure to exhaust administrative remedies, but failed to note whether that dismissal was with or without prejudice. We believe that the complaint should be dismissed as premature, rather than untimely, and without prejudice to Spence‘s potential to file suit again upon exhaustion of administrative remedies. We note that the regulations cited by the DLA state that the
agency may decide to accept an otherwise untimely administrative complaint “for other reasons considered sufficient by the agency.”
B.
The district court dismissed Spence‘s claim that the DLA denied Spence equal protection under the Due Process Clause of the Fifth Amendment (and that the DLA‘s actions were arbitrary and irrational) on the ground that the Rehabilitation Act provides the exclusive means by which a litigant may raise claims of discrimination on the basis of handicap by federal agencies.
Spence challenges that holding, as well, but we agree with the district court‘s conclusion.
Given that we have found that a litigant must exhaust administrative remedies under
III.
We will modify the judgment of the district court to clarify that dismissal of Spence‘s suit is without prejudice to Spence bringing another suit under the Rehabilitation Act if and when he exhausts his Title VII administrative remedies under the Act. In all other respects, the district court will be affirmed.
Notes
Spence also argues that our decisions in Chowdhury v. Redding Hospital & Medical Center, 677 F.2d 317 (3d Cir. 1982), and Cheyney State College Faculty v. Hufstedler, 703 F.2d 732 (3d Cir. 1983), suggest that exhaustion of administrative remedies is not required prior to filing suit under sections 504 and 505(a)(2). We disagree. Chowdhury and Cheyney State College Faculty stand for the proposition that a party need not exhaust Title VI remedies before filing a suit claiming a violation of that statute. Although in Chowdhury we drew support for our conclusion that exhaustion is not required under Title VI from cases construing section 504 of the Rehabilitation Act (Chowdhury, 677 F.2d at 322), neither Chowdhury nor Cheyney State College Faculty involved a claim under the Rehabilitation Act, thus neither case discussed whether a litigant pursuing a claim under sections 504 and 505(a)(2) has any duty to exhaust Title VII remedies. We decline to turn obiter dictum in Chowdhury into a holding here.