David E. Moore, an Individual v. Sun Bank of North Florida, N.A. A Florida Corporation

HILL, Senior Circuit Judge,

dissenting:

In my view, (and as the appellants note), Section 504 of the federal Rehabilitation Act, 29 U.S.C. § 794 , represents yet another instance where congressional intent has not been “unambiguously expressed.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 , 104 S.Ct. 2778, 2781 , 81 L.Ed.2d 694 (1984). I, of course, sympathize with the majority’s concern that we avoid inserting exclusionary language in a statute when elected lawmakers failed to do so. Nonetheless, my review of Senate Report No. 95-890, (May 15, 1978), convinces me that Congress did indeed intend for the limitations governing financial assistance in Section 602 of Title VI, 29 U.S.C. § 794a(a)(2) to apply to the assistance specified in the Rehabilitation Act as well.

The Senate Report states as follows:

Subsection (a)(2) of the new section makes available the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 to any person aggrieved by any act or failure to act by any recipient of federal assistance under Section 504 of the Rehabilitation Act of 1973.

It is the committee’s understanding that the regulations promulgated by the Department of Health, Education and Welfare with respect to procedures, remedies, and rights under Section 504 conform with those promulgated under title VI. Thus, this amendment codifies existing practice as a specific statutory requirement.

A. Exclusionary Language in Title VI.

The Senate Report, in my view, at least, specifically adopts the limitations on federal financial assistance detailed in Section 602 of Title VI. The majority’s opinion, however, emphasizes that in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 635 , 104 S.Ct. 1248, 1255 , 79 L.Ed.2d 568 (1984), the Supreme Court rejected a litigant’s argument that “Congress intend[ed] to enact the ‘primary objective’ requirement of § 604 [of Title VI] into the Rehabilitation Act when it amended that Act in 1978.” The majority reasons that since the Supreme Court elected not to incorporate Title Vi’s Section 604 into the Rehabilitation Act, it would similarly elect not to incorporate Title Vi’s Section 602.

Section 604 of Title VI authorizes no action under the title “except where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. As I see it, the Supreme Court in Consolidated Rail simply found it “unnecessary to extend Title VI more generally to ban employment discrimination, as Title VII comprehensively regulates such discrimination.” Consolidated Rail, 465 U.S. at 632, n. 13 , 104 S.Ct. at 1253 n. 13. No such rationale, however, supports the majority’s decision in this case. The exclusionary language at issue here would limit *1434 Section 504; it would not as in the Consolidated Rail case, expand its language into areas already duplicated by other statutes. In my view, the Senate Report plainly supports our incorporation of Title Vi’s exclusionary language into Section 504, and nowhere suggests that we limit its incorporation to selected segments of the statute.

B. Administrative Regulations.

I agree with the majority that an agency’s interpretation of a statute need not necessarily reflect congressional intent. In my view, however, the language of the Senate Report actually endorses “the regulations promulgated by the Department of Health, Education and Welfare.” 1 As the Report makes plain, the regulations, at least “with respect to procedures, remedies and rights under Section 504[,] conform with those promulgated under Title VI.” (emphasis supplied). The Report, in short, accepts the regulations as a legitimate and appropriate source of authority in their interpretation of Section 504, and I see no reason why we should disregard that authority now.

CONCLUSION

For these reasons, although I acknowledge that the issue is not entirely free from doubt, I would reverse the decision of the district court which denies the appellant’s motion for summary judgment.

. As the majority notes, the Department of Justice has adopted the HEW regulations without revision. See 46 Fed.Reg. 40686. The current version of these regulations is now at 28 C.F.R. § 41.3 (e).