Thomas Le Strange v. Consolidated Rail Corporation

WEIS, Circuit Judge,

concurring.

I join in the judgment of the court because I believe the case on which the district court relied, Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947 , 99 S.Ct. 2895 , 61 L.Ed.2d 318 (1979), was erroneously decided. I agree that the issue in this case is not one of standing, as that term is ordinarily used, see, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 473 , 102 S.Ct. 752, 759 , 70 L.Ed.2d 700 (1982), but is the more direct question of the scope of § 504.

Trageser held that the prohibition against handicap discrimination in § 504 of the Rehabilitation Act is limited by the reference *778 in § 505(a)(2) to the provisions of Title VI of the Civil Rights Act of 1964. That is, a claim of employment discrimination against the handicapped is subject to § 604 of Title VI: “Nothing contained in this subchapter shall be construed to authorize action . . . by any department or agency with respect to any employment practice of any employer .. . except where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3.

Although it recognized that “§ 604 expressly curtails the authority of federal departments and agencies,” the Trageser court concluded that “it also restricts private suits.” 590 F.2d at 89 . The court cited no authority for its conclusion and I am persuaded that it erred in applying § 604 to private suits. The language of § 604 confines its application to “action . . . by any department or agency” and does not refer at any point to suits brought by a private individual or entity.

The Rehabilitation Act’s reference to Title VI was not intended to restrict the remedies of handicapped individuals but rather to limit the sanctions which government agencies could take against an offending recipient of federal financial assistance. Congress enacted § 604 because it feared that when an employment violation occurred, an overzealous federal agency might threaten the very existence of important programs by invoking the remedy of withholding funds. 1 The reference to Title VI in § 505(a)(2) of the Rehabilitation Act must therefore be interpreted with the understanding that § 604 was drafted to prevent administrative overkill. Viewed in this light, it is clear that the incorporation of § 604 narrows not the rights of victims, but only the coercive measures which a “department or agency” can apply against an offender.

The dissenting opinion of Judge Ferguson in Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (9th Cir. 1982), analyzes the errors of the Trageser opinion at length. I agree with Judge Ferguson and see no need te repeat here the reasoning which underlies the conclusions we both reach. See also, Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 , 676 (8th Cir.), cert. denied, 449 U.S. 892 , 101 S.Ct. 249 , 66 L.Ed.2d 117 (1980), McMillian, J. (conc.).

It is worth noting that in NAACP v. Wilmington Medical Center, Inc., 599 F.2d 1247, 1258 (3d Cir. 1979), this court concluded that there is a private right of action under § 504. Our holding today is wholly consistent with that case.

Of course, I intimate no views on the merits of this case and concur in the remand to the district court.

. During congressional debates, Title VI was commonly referred to as the “cut-off-the-funds title.” See Comment, Employment Discrimination Against the Handicapped: Can Trageser Repeal the Private Right of Action, 54 N.Y.U.L.Rev. 1173, 1186 n.69.