Thomas Davis v. United Air Lines, Inc.

Accordingly, quashing the court’s order is reversed. subpoenas

Senate Star, by The San Juan we appeal

In the

uphold protective the district court’s orders they prevent parties

to the extent litigation and their counsel from disclos-

ing press public information through deposition proceedings.

obtained appeal by plaintiffs,

In the we reverse the

protective orders the extent plaintiffs’ attorneys sharing

bar from

plaintiffs depositions. the content of the

Lastly, we reverse the district court’s order

quashing subpoenas. the Senate

So ordered. DAVIS, Plaintiff-Appellee,

Thomas LINES, INC.,

UNITED AIR

Defendant-Appellant.

No. Docket 81-7093.

United States Court of Appeals,

Second Circuit.

Argued May Sept.

Decided

121 differing with views among the district Circuit,3 in judges the Second but only appeal passing courts of on question, Sixth,5 Fifth,4 Seventh,6 Circuits, and held have there is private no such judicial remedy. agree We with the ex- tended question Judge by Alvin Rubin the panel majority for Katz, A. City, Michael New York for de- Inc., Rogers Frito-Lay, Fifth v. Circuit in fendant-appellant. 1980), (5th 611 F.2d 1074 Cir. our exam- in Spiegel, Norman New ination the cases decided City, Supreme York for Rogers plaintiff-appellee. Court and in own our court since was handed down reenforces the conclusion KAUFMAN, OAKES, Before and NEW- Rogers in private right that no of action MAN, Judges. Circuit may be from 503. inferred Accord- we ingly, judgment reverse the of the Unit- OAKES, Judge: Circuit ed District Court States Eastern This case involves Weinstein, the issue whether District of New Jack B. section 503 of Judge, reasoning the Vocational Rehabilitation Chief which found 1973, amended, 793,1 Act of as 29 upholding private right U.S.C. courts of action gives employee “persuasive” an in of the factors identi- contracting Cort v. employer with the fied Supreme Court 2080, government alleged federal discrimina 422 45 employment tion in physical (1975). the basis of We the question do reach handicap. question Davis, has been answered appellee, whether Thomas had courts,2 contrarily by a number of district failed to exhaust his administrative reme- provides part: F.Supp. (N.D.Cal.1979) (same); 1. Section 503 in relevant 76 v. Duran City Any Tampa, F.Supp. (M.D.Fla. (a) $2,500 430 78 contract excess of en- 1977) (same); Philadelphia department tered into Drennon v. Gen'l Federal or agency procurement Hosp., F.Supp. (E.D.Pa.1977) personal prop- for the 428 816 erty nonpersonal (same), (including County, services with Simon v. Louis 497 con- St. struction) (E.D.Mo.1980) F.Supp. (finding for the United States shall contain 149 that no that, provision requiring employing per- private right of action exists under section carry party 503); Corp., sons to such out contract Doss v. General Motors 478 contracting (C.D.Ill.1979) (same); F.Supp. with the United States shall take Ander employ Co., Ry. F.Supp. affirmative action to and advance v. son 934, Erie Lackawanna employment qualified handicapped (N.D.Ohio 1979) (same); individu- v. Dia Wood Co., als .... F.Supp. 1003, mond State Tel. (D.Del.1977) (same). (b) any handicapped If individual believes any contractor has failed or refuses to com- ply with the of his contract with Co., Compare Langman 3. v. Western Elec. States, relating employment the United (S.D.N.Y.1980) J., F.Supp. (Knapp, individuals, may such individual finding no action exists complaint Department file a with the of La- 503), Chaplin under section v. Consolidat- Department promptly bor. The gate shall investi- Co., F.Supp. (S.D.N. ed Edison complaint such take shall such ac- J., Y.1980) (Lasker, finding that a tion thereon as the facts and circumstances 503). of action exists under section warrant, consistent with the terms appli- regulations contract the laws and Inc., 4. 611 F.2d cable thereto. denied, (5th 1980), Cir. cert. 101 S.Ct. 246 U.S.C. 793. Compare Paralyzed 2. California Veterans Ass’n Hoopes C., Equifax, 1980) (C.D.Cal. v. F. C. (6th 1979). Cir. (finding that a exists Servs., 503); under section Clarke v. FELEC 1980) Simpson (D.Alaska Reynolds Metals 629 F.2d (same); Alameda, County Hart v. case, contract,” question of his

dies in this whether that “such indi- [federal] primary jurisdic- may complaint this case was within vidual file a with the De- partment “promptly of Labor. of Labor” which shall investigate” ... and “take such action alleged in the complaint The facts ” the facts and circumstances warrant.... very briefly stated. Thomas Davis explicit Because section 503 creates no Lines, for United Air had worked Inc. private judicial remedy against con- federal serviceman, (“United") a ramp since 1966 as charged employment tractors with discrimi- servicing loading aircraft and and unload against handicapped, the federal nation ing cargo. diagnosed In 1969 he was as courts have had to determine whether a having epilepsy and from until time time may of action be inferred. 1974, mid-September experienced he sei The our must be starting points for that not interfere zures did with his satis Ash, out in v. four factors set Cort factory performance ramp of as a duties part “a of whether we view these factors as experienced serviceman. After he a seizure Club, 451 law,” v. our California Sierra 1974, mid-September placed he was on 1775, 1783, 68 287, 301, 101 S.Ct. U.S. duties, ultimately restricted and he was J., (Stevens, concur- (1981) 101 L.Ed.2d working bag confined to in the room. In ring), central “merely guides or as 1977, June placed he was on “extended ill intent,” ascertaining id. task of ness status” epilepsy; because his he was J., 302, (Rehnquist, at at S.Ct. officially discharged 15, February on concurring judgment). See Texas In complaint December 1978 Davis filed Materials, Inc., Industries v. Radcliff provided with the as Labor 630, 639, 2061, 2066, U.S. S.Ct. 503(b), supra, section note 1 charging (1981). Analysis L.Ed.2d of the Cort against United had discriminated him “preferred approach” factors is the physical handicap. on the basis of his The implied private an determining whether Department of Labor has not acted on his exists. See Transamerica 1979, complaint. pri- October he filed a Lewis, 11, Mortgage v. Advisors 444 U.S. vate against suit United in the Eastern (1979) 100 S.Ct. 62 L.Ed.2d 146 District of claiming New York that United J., (White, dissenting); Cannon v. Universi- had rights violated his under section 503. ty Chicago, U.S. S.Ct. Judge Weinstein denied United’s motion for (1979). L.Ed.2d judgment pleadings, on the and certified his order is appeal in accordance with 28 Under Cort the initial consideration 1292(b). pur- plaintiff U.S.C. It is assumed for whether the is a member of a class § poses of appeal physically especial that Davis is for “whose statute was benefit the “handicapped” meaning Ash, within enacted.” at 80- Cort v. 422 U.S. Act, 706(6), see 29 U.S.C. that United at Ross 2089. See Touche § government holds subject 569-70, Redington, contracts to the & Co. v. 442 U.S. requirements 2479, 2484-85, of section and that Davis S.Ct.

was discharged handicap. because of his Although generally section 503 was intend- handicapped persons, ed to benefit The law may briefly be stated follows. alone does not establish that in- Under 503(a), any contract excess tended to “create a federal in favor of $2,500 by the federal entered into plaintiff.” v. at Cort government provision must “contain a re- at 2088. See v. quiring that take ... shall contractor] [the Inc., 611 F.2d at 1079. employ affirmative action to advance in employment qualified handicapped that a Supreme suggested indi- Court has ” 793(a). readily viduals .... be more U.S.C. Section 503(b) provides any handicapped in- is implied language that if when the of a statute “duty- dividual “right-creating” merely “believes contractor has failed rather than University or comply creating.” with the See Cannon refuse[d] Chicago, IX 441 U.S. at 690 n. unmistakable on focus language class, has found Statutory been had written simply benefited it it right-creating explicitly when focuses on discriminatory ban on recipi- conduct the benefited class. id. at n. ents prohibition of federal funds or as a shall, (“no person 99 S.Ct. at 2487 . .. public the disbursement of funds .,” sex, . basis excluded . 20 U.S.C. engaged educational institutions dis- 1681); Elections, Allen State Board of criminatory practices. 544, 554-55, 817, 825-26, 393 U.S. Cannon University Chicago, (“no (1969) person shall be 99 S.Ct. at 1954-55. .,” the right denied to vote . . 42 U.S.C. inquiry second under whether Cort 1973c). any legislative evidencing there is Section Vocational Rehabilita- congressional intent deny create tion Act of 29 U.S.C. which is private remedy. We read Cort and its case, issue just in invokes Club, progeny, including v. California Sierra right-creating language: “No otherwise supra, Ass’n, and Universities Research Inc. shall, qualified handicapped individual . .. Coutu, 754, 1451, v. 101 67 U.S. solely handicap, reason of his be exclud- (1981) (no private right L.Ed.2d 662 of ac in, ed participation from the be denied the against private under Davis-Bacon Act of, subjected benefits or be to discrimina- close, employers) requiring very a even tion under any program activity receiv- microscopic, legislative examination of the ing Federal financial assistance.” Accord- history particular statute involved. ingly, a number of courts have held that reading legislative history This of the must section 504 private creates a cause enlightened judicial be done with an eye, for handicapped persons.7 giving full attention to the underlying con contrast, By only section 503 contains gressional purpose, very heart of statu duty-creating language, directing federal tory Cox, analysis, Judge see Learned Hand departments agencies provide in all Statutes, Interpretation and the 60 Harv. federal contracts contractors are obli- 370, (1947); Wyzanski, Judge L.Rev. 374-75 gated to take steps employ affirmative Learned Hand’s Contributions Public persons. and advance handicapped No- Law, 348, (1947); 60 Harv.L.Rev. 360-62 does express where section 503 confer an Harris, (2d Cir.), WATCH v. 603 F.2d 310 upon the handicapped, impose nor a denied, 995, 530, cert. U.S. duty direct on federal contractors. See (1979), healthy but also awith Rogers Frito-Lay, Inc., v. 1079- F.2d at skepticism of from “casual statements floor Judge 80. As Rubin in Rogers, noted debates,” as Justice Jackson warned us so use of duty-creating than right-cre- rather pointedly v. Schwegmann in Bros. Calvert phrases, conclusive,” ating though “not 745, Distillers makes “inference of a private cause of ac- 95 L.Ed. 1035 Indeed, tion more difficult.” Id. at 1080. Supreme Court has stated yiew lan- we Taking such guage such as that contained in section 503 nothing original find history against militates inferring Act easts any Rehabilitation of 1973 that of action: Congress on whether intended to cre-

There would far a private right be less reason to infer a ate of action. Given Con- private remedy per- silence, favor individual gress’s initial we seek some sons if Congress, drafting instead Title guidance from the 1974 and 1978 amend- Univ., Handicapped United F.Supp. Federation v. Doe v. York New Andre, Coll., (8th 1977); (S.D.N.Y.1978); 558 F.2d v. Barnes Converse Cir. Kampmeier Nyquist, (2d v. (D.S.C.1977); F.Supp. 553 F.2d Gurmankin Auth., Lloyd 1977); Regional Transp. Costanzo, (E.D.Pa.1976), Cir. aff’d, 1977); (3d 548 F.2d Davis v. Cir. 556 F.2d 184 Bucher, (E.D.Pa.1978); the Act. giving weight signment may

ments to even indicate that section amendments, these we would choose a mid unlike was not intended to be dle road panel majority between the in Rog enforced; privately Department of La- Frito-Lay, ers v. 611 F.2d at 1080 bor, Health, unlike the Edu- (“[Wjhat happened after a statute was en cation, Welfare, experience lacked acted may history it may come from dealing with private lawsuits. See Congress, members of the but it is not part n. F.2d at 1081 legislative of the original of the only indication that ap- a “uniform” enactment”), Judge Goldberg’s dissent proach combatting employment discrimi- Rogers, (“it 611 F.2d at 1100 is a well-es nation the handicapped might entail tablished principle post-enactment that the right of action under section 503 treatment of a by Congress statute is co well as section 504 is the remarks of a gent evidence of the intent senator who was not a member the con- the time of passage”). its We believe our committee, ference although he was one of view is called for University Cannon v. the principal sponsors original Act of Chicago, 441 U.S. at 686-87 n. and its subsequent amendments. Senator Court, at 1952-53 n. in which the while Robert Stafford of Vermont stated on the partially relying subsequent floor in 1974 that enforcement under both history, noted that “we cannot accord these sections 503 and 504 should be similar to weight remarks the of contemporary legis enforcement under Title VI and Title IX. history. lative Harris, ...” See WATCH v. Cong.Rec. These remarks 324-25; 603 F.2d at North Haven Board of not, however, were included in the confer- Hufstedler, Education v. 629 F.2d 783- Furthermore, ence report. committee al- (2d 1980), Cir. granted, cert. though an exchange of correspondence be- (U.S.1981). tween the Senate Committee on Labor and The subsequent legislative history of the Public Welfare Secretary and the of Labor Rehabilitation Act is internally conflicting. regarding the enforcement of section 503 is The 1974 amendments expressly deal with appended to the report, nowhere in that section equating (42 it with Title VI correspondence any is there hint that 2000d-l) (race U.S.C. discrimination) statute was through to be enforced private Title (42 IX 1683) (sex U.S.C. § discrimina- lawsuits. Cong. U.S.Code & tion). Report 93-1297, Senate No. which 6425, 6429, 6430, 6438, Ad.News 6439-40. urged overriding the President’s veto of the only portion the exchange between amendments, expressly noted that sec- Committee Department dealing permits right of action. complaints Department’s relates to the tak- See 1974 Cong. U.S.Code & Ad.News ing “primary responsibility for enforcement of complaints” and the Senate Committee’s contrast, In the Senate Conference Com- concern that “there is too much emphasis mittee never explicitly stated that section given to contracting agency’s internal confers a. right of action. Al- resolution of complaints because there though the report did state that “[i]t is no standard established [Labor intended that sections 503 and 504 be ad- Department’s] regulations as to what is an ministered in such a manner that a consist- accepted effective or proce- internal review ent, uniform and ap- effective Federal dure.” Id. at 6429. proach to discrimination handi- With capped exception persons result,” Senator Stafford’s would id. at floor, then, this statement on appears to refer simply to the desirabil- ity of cooperation by intent between demonstrated Department Health, Education, Welfare, simply amendments support which does not was assigned implication to enforce section and the of a of action un- Labor, assigned 1978, however, which was der section 503. when to enforce section 503. separate This as- Congress again amended the Act adding attorney’s section 505 to provide Handicapped, fees committee on the S.Rep.No. any proceeding action or to enforce or 890, supra, testimony at 18-20. Her quoted “[i]n Act],” charge a violation of 29 U.S.C. Report [the only in the Senate related to sec- 794a, the accompanying Report Senate tions 501 and 504: clearly private judicial assumed that a rem- Unfortunately, the disabled citizens edy was available under section 503: “[T]he are protected by who 501 well section availability attorney’s fees should assist among as section 5Ó4stand alone minori- in vindicating private rights of action in the ty groups in re- country, they since cases, case of section 502 and 503 as well as recently main largely unaffected arising those under section 501 and 504.” enacted Rights Attorney’s Civil Fees S.Rep.No. Cong., (1978) 95th 2d Sess. 19 Awards Act of Public Law (Human Committee). Resources H.R. legislation protects and because which Rep.No. 95-1149, 95th 2d Cong., Sess. 21 rights attorney’s their civil no contains (1978) (Education Committee), and Labor provision. many peo- fees Thus disabled reprinted in Cong. 1978 U.S.Code & Ad. ple, who desperately to vindicate need News spoke exactly the same courts, rights through their have been terms.8 utterly be- frustrated and disillusioned Neither nor Senate the House Re- cause could neither afford an attor- ports, however, contained reference to ney, represent locate one able to them existing law case from the district fee, without a nor seek an fee attorney’s Although courts. two district court cases award from the courts. had found that there was a Id. at 19. We note also the Seventh Cir action under City Duran v. point Simpson Reynolds cuit’s Metals Tampa, F.Supp. (M.D.Fla.1977); 1226, 1242 Co., 1980), v. Philadelphia Drennon Hospital, General allowing attorney’s pro fees in actions (E.D.Pa.1977), three cases ceedings brought under section 503 had held implied that no right of action have been provide intended attor existed, Telephone Wood v. Diamond State ney’s 503(b) fees proceed either in section (D.Del.1977); Moon ing Department before the of Labor or in a Roadway Inc., Express, (N.D.Ga.1977), aff’d, judicial proceeding brought pursuant to the Rogers Frito-Lay, (5th 1980); Department regulations permit 611 F.2d 1074 Cir. Labor’s (N.D. ting the of the director Office Federal Tex.1977), aff’d, 611 F.2d 1074 Cir. Compliance (OFCCP) Programs Contract to appropriate judicial seek to enforce provi the affirmative action contractual This failure conflicting to note the case required sions the under Act. See C.F.R. law of the time indicates that reference 60-741.28(b) short, (1980).9 giv In even § to rights being available in ing appropriate weight subsequent to the section 502 and 503 cases as well as those legislative history reflected the 1978 arising under sections 501 and 504 was inad- amendment, nothing compels vertent. This true we find that especially seems of the us to the that Report’s Senate extensive reference conclusion a to the testimony Kaplan Deborah action exists under section 503. The as Disability Rights Center before the sumption Sub- in the 1978 congressional reports Report 8. The House stated: “The new Judicial addition section enforcement. permits courts, discretion, herein, at their to award to administrative remedies set forth prevailing party, may, other the United appli- than within Director the limitations of States, law, action to enforce sections appropriate judicial cable seek action to act, 504 of or a reasonable allowance to provisions in- enforce contractual ... attorneys’ cover the costs of fees.” cluding injunctive appropriate relief. 60-741.28(b) regulations 9. Section of the reads as follows: (1981); upon Transamerica Mort-

simply be relied faithful “cannot Advisors, prior congressional intent.” indicator of at gage Co., 629 F.2d at Simpson Reynolds Metals Act though 247. And the Rehabilitation directly provide judicial review failed procedure, such an administrative ambiguous legisla- the somewhat Given thought however, Department evidently of Labor proceed history, tive we must question might possible, the third under Cort v. Ash: that such review be as indi- underlying 60-741.28(b). it with the whether is consistent cated regulation section purposes of the scheme to infer a implementing regulations incorpo- do action for the sophisticated hearing rate the elaborate person against by employ- his discriminated practice procedure used to enforce note, Rogers majori- er. Here we as did the equal opportunity under Executive Order ty, Congress provided that 11,246, reprinted part No. in 41 60- C.F.R. complete a rather administrative scheme to 60-741.29(b) (1980); see 41 C.F.R. § remedy 503 violations that hearing provisions these culmi- elaborate implementing regulations, 41 60- C.F.R. §§ nate, culminate, in a final adminis- (1980), emphasize 741.4 to 60-741.54 resolv- order, 60-30.37, is in trative id. which our § ing complaints Department of Labor view reviewable like other administrative means, “by conciliation, including informal orders under the Administrative Procedure and persuasion, possible,” whenever id. particularly Act 701-706. U.S.C. §§ 60-741.28(a). regulations provide sure, regulations’ To be failure withholding progress payments, remedies problem specify presented time limits has contracts, existing termination of or debar- that particularly evident in the case at receiving contracts, ment from future id. has, bar. The of Labor con- 60-741.28(c) (e), rather than remedies trary Congress, to the will of been unable to running to discriminated-against em- comply speedily with the ployee. regard, In this the administrative Rehabilitation Act. This has resulted in the procedures established the Act and im- Department’s taking position plementing regulations remarkably are con- here, past, although position it takes no sistent Comprehensive with those under the permit- cause of action should Employment (CETA) and Training Act dis- remedy ted order to section 503 violations cussed in CETA Organizing Workers’ Com- effectively acknowledg- more and indeed an (2d mittee v. New 617 F.2d 926 ment net effect of “[t]he [OFCCP] 1980). Although implemen- the scheme for is that there is discretion no assurance that tation of provided the CETA in CETA compliance tempered by decisions are not may be U.S.C. somewhat political, procurement, personal po- or other sophisticated more provided than that tentially conflicting require- competing or by section 503 of the Rehabilitation Act— ments,” Force, Preliminary OFCCP Task the regulations Rehabilitation Act contain Report on Revitalization of the Federal no processing deadlines for the of com- Compliance (1977), Program quot- Contract plaints, 60-741.26(e) (1980) C.F.R. § —we in Rogers ed v. 611 F.2d at cannot find this distinction between the J., (Goldberg, The Rather, dissenting). agency very cases significant. as in CETA backlog Workers, 933-34, position recogni- and its in favor of 617 F.2d at we believe private remedy that tion of a are set forth in an the underlying congressional purpose OFCCP, provide by was to affidavit the director of the procedure an administrative quoted appendix Rogers opin- for the in an to the complaints determination of under ion, 1108-09, which the administering agency was to F.2d at and submitted use powers its ques- Judge Chaplin enforce the section in an amicus brief to Lasker in tion. County Sewerage See Middlesex Au- v. Edison of New Consolidated Co. thority Ass’n, (S.D.N.Y.1980). v. National Sea Clammers -U.S.-,-, 2615, 2623, While to enforce S.Ct. lack of executive resources Simpson v. Congress regrettable, Reynolds an act of is it is hard- Metals 629 F.2d at ly judiciary’s by (discussing representa- role to redress that lack the OFCCP’s inferring judicial Piper v. remedy. inadequacy Chaplin a See tion of Industries, noting any repre- Chris-Craft 430 U.S. but absence of 926, 949, case). (1977); Riegel L.Ed.2d that sentation record in Corp., Textile v. Corp. Celanese 649 F.2d We need deal with fourth Cort (2d 904-05 factor; enough plain Ash it is that discrimi- a against nation the disabled has not been Moreover, although department’s traditionally relegated matter to state law. position on an implied private whether conclude, But we as have the other three judicial cause action exists is entitled to appeals passed upon courts of that have consideration, Cannon, see 686- 441 U.S. at implied private right that question, no 99 S.Ct. at of. North Haven 503, recognizing action exists under section Education, (a Board 629 F.2d at 777 court glass through by which we see is “give should weight contempora due crystal cloudy no clear is so means but agen neous construction of a statute barely translucent. cy charged administration”), with its agency’s expertise, “[ejven the agency if Judgment reversed. voice, spoke with a consistent ... is limited value when legal the narrow issue is KAUFMAN, IRVING R. Judge, Circuit one peculiarly judicial resolu reserved (dissenting): tion, namely whether a cause majority indi- holds be implied by judicial interpretation should viduals have no of action un- in favor particular litigants.” of a class der Act of Rehabilitation 1Piper Industries, v. Chris-Craft 430 U.S. at position It rigid U.S.C. 793. takes this 27, 97 41 n. Riegel Textile See appellant’s charge in the face of that Unit- Corp. v. Corp., Celanese at 897 n. 4. ed Air Lines discriminated him be- Judge As Learned Hand stated: handicap cause of his since it believes that is doubtful whether in the one end [I]t the demands of four-factor Cort test say can more than that there comes agree. been met. I A have not cannot point at which the courts form must their keeping careful with the Cort doing own conclusions. they Before so approach compel does not this harsh result will, of course—like the administrative Davis, a diagnosed epileptic placed tribunals themselves —look for from unpaid illness status” and then “extended every quarter, and after all crannies have I employer. Accordingly, terminated his searched, been will yield adminis dissent. interpretation trative in all doubtful question under Cort threshold cases; but can never abdicate. plaintiff one whether was class FPC, Niagara Falls Power 137 F.2d Co. “especial was en- for whose benefit” (2d Cir.), denied, cert. 66, 78, 80-82, acted. Cort (1943). L.Ed. 95 S.Ct. at case, an after-the-fact acknowl- inquiry This focuses on whether

edgment of inadequacy clearly because of limited defined class intended benefit departmental equiva- general public. resources is not the protect rather than to established, lent a long-held, firmly University Chicago, of well- 441 of U.S. Cannon 677, position 690-92, reasoned agency that the has made S.Ct. 1954-55 99 at to Congress Looking language known and to the courts over the the statute of Here, years, Cannon, such as in 441 at of Id. provide evidence this intent. U.S. 8, 503(a) (b) 688 n. or language specifically at in North S.Ct. § Education, class, “handicapped Haven Board of individu- 629 F.2d at identifies Indeed, als,” equal employment oppor- 783-84. no provides record here contains Indeed, similar statement Cf. all fall it. agency. tunities for who within to the first vides little assistance. fo relying approach primarily on this Cort Debate factor, virtually federally- all of district courts cused on the establishment of 503, including handicapped, analyzing programs those that ulti- funded § action, antidis private right relatively on the non-controversial mately found no provisions crimination 503 and 504. have that the statute was enact- §§ concluded history Nor is an examination of the sur “especial benefit” ed for the handi- rounding 1974 Amendments to the Act capped. Paralyzed California particularly enlightening, because discus FCC, F.Supp. Assn. v. Veterans “handicapped redefining sion centered on (C.D.Cal.1980); County 128-29 Hart v. individual,” full explicating not on Alameda, (N.D.Cal.1979); 503 and 504. The confer meaning §§ Ry. Anderson v. Erie Lackawanna however, It report, guidance. ence lends (E.D.Ohio “judicial remedy permits states that § however, majority, contends action,” through private S.Conf.Rep.No. 93- “right- duty- when 503 is examined for § (1974), and Cong., 93rd 2d Sess. creating language,” University Cannon v. notes, majority recognizes, as the that both n.13, Chicago, supra, U.S. sections will be to effect a administered no indication of an intention approach uniform to discrimination establish a federal in favor of the 27. lan persons. Id. at Such' plaintiff can be found. See Cort v. believe, guage, fairly I should be read to supra, 422 U.S. at at 2088. that, suggest Congress recognized a since While the absence of such a “talismanic private right of action under such a § incantation,” Rogers Inc., v. Frito-Lay, remedy would not be inconsistent Con dissenting), Cir.) (Goldberg, J. gress’s purpose See § denied, t. cer Frito-Lay, supra, 611 F.2d at 246, 66 (1980), is less addition, (Goldberg, dissenting). J. dur relevant than the obliga substance of the debate, ing the Robert Senate Senator Staf created, tions the affirmative action lan ford, principal sponsors one of the of the guage create, may appear when amendments, original Act and its later stat closely, scrutinized a duty agen for federal ed that enforcement of both sections would cies, it argued, employers. Rog not for be similar to that of 601 of the Civil ers v. supra, 611 F.2d at Rights Act and 901 of the Education Cong.Rec. Amendments of 1972. 120 Although the duty-creating phrases are (1974). Although of action direction, not conclusive in either an analy- was found to exist the Education sis of the second important and more Cort Cannon, majori supra, Amendments factor, contrary majority’s position, ty denigrates the value of Senator Staf exceedingly offers strong giv- evidence for ford’s remarks. ing of action to the handicapped congres- More conclusive evidence of a individual. In considering leg- whether the sional intent to authorize a action is islative 503 sheds on the attorney’s found in the 1978 fees amend- question, see Cort 794a(b). provision ments. 29 This U.S.C. § Ash, supra, 422 U.S. at 95 S.Ct. at explicitly presumes private judicial actions three carry statutes weight directly and are attorney’s because fees are made available relevant to our determination: the 1973 parties “other than the United States” Act, Rehabilitation the Rehabilitation Act to actions language because looks Amendments attorney’s and the “courts,” agen- before not administrative fees Rehabilitation, Com- Report cies. The and Senate de- Senate prehensive Services, Developmental private actions were bates also indicate that Disabilities Amendments of 1978. majority that the envisioned. concedes I quarrel do not explicitly with the assertion that accompanying Report Senate legislative the history pro- attorney’s of availability the Act stated that the of one, inferring was to aid indi- the intent of earlier fees intended an “vindicating private rights in of viduals ac- Safety see Product Consumer Comm’n. . the case . . 503 cases.” in Inc., Sylvania, GTE U.S. Cong., (1978). 2d S.Rep.No.890, 95th Sess. 19 2051, 2060, (1980), S.Ct. L.Ed.2d 766 is majority further acknowledges that Many a persuasive argument. not members H.R.Rep.No.1149, Cong., 95th 2d Sess. 21 the committees in 1978 were .of relevant (1978), reprinted in Cong. U.S.Code & Ad. in also members of those committees 1973. precisely News took the same distinguished I doubt members of that these position. Congress trail-blazing who over leg- labored My legis- they brothers have that what forgotten decided islation would have “unpersuasive” lative material is virtu- years had a five before the intended mere ally They adopt dismiss it. the rationale the Contrary majori- amendments. that failure to then-existing discuss the case ty’s poorly-supported and tenuous conclu- law indicates that references availa- legislative history ambigu- sion that the is bility a of action were ous, legislative history clearly the indicates “inadvertent.” I realize that “even Homer attorney’s in Congress, passing fees nods,” but such a bald refusal acknowl- pri- amendments of that a assumed clear, edge express congres- statement of vate of action was created with the Granted, sional intent is inexcusable. passage assumption 503 in 1973. This surrounding evidence passage subsequent does not reflect a desire to attorney’s fees amendments carries enactment; rather, original amend the it weight less contemporary legislative than intent the drafts- illuminates initial history, but this evidence is strongly rele- men. vant determining what Con- members of analysis third factor of Cort con gress they years assumed had several done siders whether a previously. It is clear from the legislative would support Congress’s purpose enact Congress premised the attor- ing statutory scheme. Cort v. See ney’s provision fees of an the existence supra, 422 at at U.S. implied Furthermore, remedy. interpreting Implication of a private right of action is attorney’s an fees amendment to reveal underlying purr not inconsistent with the Congress’s surely is intent novel pose of 503—effective administrative en construction, majority’s method The Department forcement. of Labor and position appear suggest. would In Can- Compliance its office Federal Contract non, interpretation of back- note, Programs, it interesting is have ground of attorney’s fees amendment to implied stated that existence rem 901 Title IX served basis for the edy enhance informal conciliation would recognition Court’s of a general. administrative enforcement action. See v. University Cannon of Chica- Y., Chaplin v. of N. See Consol. Edison Co. go, n.7, supra, 441 U.S. S.Ct. (S.D.N.Y.1980). Indeed, Congress con- generally is Although majority lightly dismisses interpreter sidered be a creditable of its opinions, these agency generally courts be actions, judicial deference in- to these deserving lieve are of substantial terpretations See, appropriate. g., Youakim, weight. e. Miller v. Chrysler Corp. Brown, 441 U.S. 59 L.Ed.2d 194 S.Ct. (1979); 60 L.Ed.2d 608 Red Lion FCC, (1979); Broadcasting Lion Co. v. Red FCC, Broadcasting v.Co. 395 U.S. supra. (1969); Federal Housing The Darlington, Administration v. brothers, My concluding that the man of the third dates Cort factor are not ful (1958). filled, rely on an contained in

Here, the Org. City notion that the view of subse- Comm. CETA Workers’ New quent forms a weak foundation 617 F.2d 926 reliance is Such

misplaced readily because CETA is (citing Thompson, distin Steffel v. guishable. statutory presumption in 464,

favor of administrative enforcement potent under Comprehen much more said, light what I I have would hold Employment sive and Training Act private that a right of action under 503 is § (“CETA”) than it is under the Rehabilita clearly Handicapped persons authorized. provides, tion Act. great Section “especial are the meant Congress class” detail, sophisticated scheme for enforce benefit from the enactment and § ment of In particular, CETA. the Secre attorney’s the 1978 fees amendments dem- tary of Labor is required to reach a final Congress onstrate that assumed that complaint determination within 120 Congress pri- intended to create this days. 106(b), 816(b). CETA 29 U.S.C. § § Moreover, implication vate of action. This complex enforcement sug mechanism private of a right of action is not inconsist- gests “primacy” and “exclusivity” of goal ent with the of administrative enforce- grievance procedures. the administrative ment of the statute’s antidiscrimination Org. CETA Workers’ Comm. New provisions. We should be mindful that the supra, 617 F.2d at 931. handicapped only physi- must overcome No such machinery detailed exists under cal participa- and mental obstacles to full Act, the Rehabilitation and even the accom- in society but also must surmount the panying Regulations contain no deadlines barriers by raised discrimination caused processing for the of complaints. 41 C.F.R. society’s Congress attitude them. toward 60-741.26(e) (1980) (“The Department § 503 sought safeguard them from Labor shall institute a prompt investigation protection discrimination and this in- of each complaint ”). Surely, . . . it does providing cludes for a of ac- not require straining legislative inter- tion. pretation to private envision a right of ac- I am Supreme aware that recent Court tion complementing the statutory enforce- decisions counsel that remedies are ment Indeed, mechanism for and, therefore, not to cavalierly, be inferred Department of Labor endorses this view. I majori- a cautious analysis is in order. The submit that analysis of the third Cort factor however, ty, has taken this advice differs for the two statutes. impor- More acknowledge extreme and has failed tantly, it ex- indicates that would be ceptions more been inclined to have carved out and create action for congressional purpose. a statute clear indications of where administrative I only enforcement are not believe the reasonable conclusion detailed precise. But the majority, admitting applying be reached from the Cort that the CETA fully scheme is more devel- is that Congress intended indi- oped, still finds the distinctions between the private remedy viduals to have a under two of little significance even in of the 503. If the history is not clear Department of Labor’s statement that an believes, precise, majority as the Jus- implied right of action for 503 violations tice ignored. Holmes’s counsel should not be permitted. should be The majority, ap- it He instructed inus 1908 that Con- “[where pears, greater attaches weight to tangential will, gress] has intimated its however indi- exempla direct, than to explicit evidence. rectly, recognized that will should be obeyed.... adequate is not an dis-

My brothers [I]t do not contend that the re- charge duty say: courts We see quirements of the pre- fourth Cort factor — at, you what are have not emption driving you but typically matters the concern of it, go state said and therefore we shall on as courts —have not been met. As States, acknowledge, before.” 163 F. Johnson v. United invidious discrimination has always (1st general been scheme legisla- addressed federal tion. indeed, Cannon v. University Chicago, legislation, su- indicates pra, Congress, affording rights privi- S.Ct. at 1963-64 new leges to handicapped, wished to redress inequities borne them. To hold oth- take from an entire group

erwise

individuals who suffer odious discrimination important right by Congress, given them America,

UNITED STATES of

Appellant, MARGIOTTA,

Joseph Appellee. M. 267 and

Nos. Dockets

81-1258 and 81-3073. Appeals,

United States Court of

Second Circuit.

Argued Sept. 17, 1981.

Decided Oct.

Case Details

Case Name: Thomas Davis v. United Air Lines, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 17, 1981

Citation: 662 F.2d 120

Docket Number: 1346, Docket 81-7093

Court Abbreviation: 2d Cir.