Petition — Coleman v. Darden

Supreme Court brief1979

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deoreme Cont LS

FILED

AUG 10 1979

MOM ROOAK IR, eLES

In The

Supreme Court of the United States

No. 79 -224

MICHAEL E. COLEMAN,

Petitioner,

vs.

GEORGE DARDEN, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ENGDAHL, RENZO & REED, P.C.

Anthony F. Renzo

730 17th St., Suite 301

Denver, Colorado 80202

(303) 571-0852

COUNSEL FOR PETITIONER

In The

Supreme Court of the United States

No.

MICHAEL E. COLEMAN,

Petitioner,

vs.

GEORGE DARDEN, Individually, and in his

representative capacity as Regional

Director of the Denver Litigation Cen-

ter for the Equal Employment Opportun-

ity Commission; ANNIE CLAY, Individu-

ally, and in her representative capa-

city as Administrative Officer for the

Equal Employment Opportunity Commission;

and JOHN FORD, Individually and in his

representative capacity as Senior Re-

' search Analyst for the Equal Employment

Opportunity Commission, ETHEL BENT

WALSH, Individually and as Acting Chair-

man of the Equal Employment Opportunity

Commission,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ENGDAHL, RENZO & REED, P.C.

ANTHONY F. RENZO

730 17th St., Suite 301

Denver, Colorado 80202

(303) 571-0852

COUNSEL FOR PETITIONER

INDEX

Page

OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED 2

STATEMENT 3

REASONS FOR GRANTING THE WRIT 7

The decison of the Court of

Appeals refusing to imply a

private cause of action. for

handicap discrimination

against federal agencies

conflicts with the holding

and reasoning of this.Court

in Cort, et al v. Ash,

422 U.S. 66 (1975) 7

ae In the Rehabilitation Act

Congress has defined and

protected a fundamental

and important right to be

free from handicap dis-

crimination and, as a

result, the physically

handicapped are protected

by the Fifth Amendment

from the use of irrebut-

table presumptions and

overbroad classifications

and the decision of the

Court of Appeals to the contrary

conflicts with the holding

and reasoning of this

Court in Cleveland Board

of Education v. LaFleur,

414 U.S. 632 (1974). 15

3. The decision of the Court

of Appeals is clearly

inconsistent with and

contrary to the plain

language and congressional

intent of the Administra-

tive Procedure Act, 5 USC

§702 and §703, as amended.

CONCLUSION

APPENDIX

A. Judgment of the United

States Court of Appeals for

the Tenth Circuit Affirming

the Judgment of the District

Court.

B. Opinion of the United

States Court of Appeals for

the Tenth Circuit.

C. Order of the Court of

Appeals Denying Petitioner's

Petition for Rehearing and

Suggestion for Rehearing

En Banc.

D. Order of the United

States District Court for

the District of Colorado.

E. Memorandum and Order

of the United States

District Court for the

District of Colorado

Entering Summary Judgment

of Dismissal.

F.(1) Research

Analyst Job Announcement,

22a

24a

26a

3la

iii

F.(2) Research

Analyst Job Description.

G. Affidavit of

Michael E. Coleman.

H. Affidavit of

Willaim C. Wildberger, II.

I. Affidavit of

Peter Sanchez-Navarro.

J. Affidavit of

Georgia C. Guilfoil.

K. Affidavit of

George H. Darden.

Le Affidavit of

Annie C. Clay.

M. Affidavit of

John J. Ford.

34a

39a

43a

46a

5la

55a

58a

60a

iv : Vv

AUTHORITIES CITED .

Lloyd v. Regional Transportation

CASES Page Authority, 548 F.2d. 1277

(7th Cir. 1977) 13

Albert Elia Bldg. Co., Inc. v.

Sioux City, Ia., 418 F.Supp. McNutt v. Hills

176 (N.D.Ia. 1976) 24 426 F.Supp. 990 (D.D.C. 1977) 14, 22

Bartels v. Biernat ; Oregon v. Mitchell,

427 F. Supp. 226 (E.D.Wis. 1977) 13 400 U.S. 112 (1970) 18

City of Los Angeles, et al v. Schicke v. Romney,

Manhait, et al, 455 U.S. 702 474 F.2d. 309 (2nd Cir. 1973) 24

(1978) 19

Sites v. McKenzie,

Cleveland Board of Education 15, 17 423 F.Supp. 1190 (N.D.W.Va. 1976) 13

v. LaFleur, 414 U.S. 632 (1974) 18, 19

Smith v. Fletcher,

Cort, et al v. Ash 343 F.Supp. 1366 (S.D.Tex 1975) 14

422 U.S. 66 (1975) 7, 10

Southeastern Community College

Duran v. City of Tampa 13 . v. Davis, U.S. Supreme Court,

430 F.Supp. 75 (M.D.Fla. 1977) 19, 20 No. 78-711, 47 L.W. 4689, 4692,

June ll, 1979 9

Drennon v. Philadelphia

General Hospital, 428 F.Supp. Tcherepnin v. Knight,

809 (E.D. Pa. 1977) 12, 13 389 U.S. 332 (1967) 14

Gurmankin v. Costanzo, Texas & Pacific Railway Co.

556 F.2d. 154 (3rd Cir. 1977) 19 v. Rigsby, 2410U.S. 33 (1916) 14

Hairston v. Drosick Textile Workers Union of

423 F.Supp. 180 (S.D.W.Va. 1976) 13 America v. Lincoln Mills

) of Alabama, 353 U.S. 448 (1957) 14

J.I. Case Co. v. Borak

377 U.S. 426 (1964) 14 Weinberger, et al v. Salfi, 16, 17

et al, 422 U.S. 749 (1975) 18, 20

Kampmeier v. Nyquist, |

553 F.2d. 296 (2nd Cir. 1977) 13

Katzenbach v. Morgan,

384 U.S. 641 (1966) 18

2 eee. »

STATUTES

5 U.S.C.

5 C.F.R.

28 U.S.C.

29 U.S.C.

29 0.8.C.

29 U.S.C.

42 U.S.C.

AND RULES

Page

702 3, 7, 20, 22

703 20, 21, 22

706 23

715.3 (1970) 2, 9

713.401 (1976) 2, 6, 7, 9, 11,

14, 22

1254 (1) 2

701 (8) 6, 7

706 (2) (b) ae aa

791 (b) Be Se: 92 .Ge Fe

793 12, 13

794 6, 12

2000 (e) 6

Civil Service Reform Act

of 1978 (Pub.L. 95-454) 9, 10

vii

OTHER AUTHORITIES

Federal Personnel Manual

Letter 306-14 (Dec. 29, 1978}

Note, Implying Civil Remedies

From Federal 3 ulator Statutes,

“$55, 291 (1963) —

arv.L. Rev.

Subcommittee on the Handicapped

of the Committee on Labor and

Public Welfare, U.S. Senate,

94th Cong. (1976)

Page

tes ee I Ae 1 RTS OR Re pila Te) ately Mey ieee ge.

In The

Supreme Court of the United States

No.

MICHAEL E. COLEMAN,

Petitioner,

vs.

GEORGE DARDEN, Individually, and in his

representative capacity as Regional

Director of the Denver Litigation Cen-

ter for the Equal Employment Opportun-

ity Commission; ANNIE CLAY, Individu-

ally, and in her representative capa-

city as Administrative Officer for the

Equal Employment Opportunity Commission;

and JOHN FORD, Individually and in his

representative capacity as Senior Re-

search Analyst for the Equal Employment

Opportunity Commission, ETHEL BENT

WALSH, Individually and as Acting Chair-

man of the Equal Employment Opportunity

Commission,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner, Michael E. Coleman,

petitions for a Writ of Certiorari to

review the judgment of the United States

Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals,

not yet reported, appears in Appendix B

hereto. The Orders and Memorandum of

the United States District Court for

the District of Colorado appear in

Appendix D and E hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Tenth Circuit was entered on

February 23, 1979, and appears in Appen-

dix A hereto. A timely Petition for

Rehearing and Suggestion for Rehearing

En Banc was denied on May 19, 1979, and

this Petition for Certiorari was filed

within 90 days of that date. Jurisdic-

tion of this Court is invoked under 28

JSC§1254(1).

QUESTIONS PRESENTED

l. Does 29 USC §791(b), and 5

CPR §713.401 (1976) (passed pursuant to

5 USC §715.3 (1970)) imply a private

cause of action against federal agencies

to redress wrongful physical handicap

employment discrimination when no ex-

press cause of action nor administrative

remedies are available?

26 Does the Rehabilitation Act's

prohibitions on physical handicap dis-

crimination define a class of persons

enjoying fundamental rights of suffi-

cient importance to bring them within

the Fifth Amendment's prohibition on

DD WOM RE RE Niipare te RE AACS 8h

irrebuttable presumptions and overbroad

classifications and forbid disqualifi-

cation decisions on the basis of physi-

cal handicap without an individualized

determination?

36 Under 5 USC §702, (Adminis-

trative Procedure Act) as amended, when

a person is aggrieved by a federal

agency violating the prohibitions on

handicap discrimination found in §791(b),

. is the proper standard for review the

"arbitrary and capricious" standard, or

that found in 5 USC §706(2)(b), whether

the administrative action is"...in

excess of statutory...limitations."?

STATEMENT

In September 1975, Petitioner was

employed by the Equal Employment Oppor-

tunity Commission as a Law Clerk.

Petitioner was notified he had not

passed the Colorado Bar Examination.

It was a policy and practice of the

regional EEOC to give Law Clerks who

did not pass the Bar first priority for

"Research Analayst" (RA) positions (GS-

11). In November, 1975, relying upon

that policy and practice of priority,

Petitioner applied for the RA position.

Petitioner met all of the RA job

qualifications and was rated eligible.

It was not a prerequisite that appli-

cants for this RA position possess the

ability to read. At the time of his

application Petitioner was 29 years old

and had been visually handicapped (blind-

ness) since 1960. Petitioner, who is

fluent in Spanish, French and German,

won a law degree from the University of

Denver School of Law in 1974.

Petitioner was turned down by

Respondents because he is blind and

would require reader assistance. (See

App. K,L & M). In fact Respondents in

their Answer Brief in the Court of

Appeals admitted Petitioner was “not

found qualified for the position be-

cause of his lack of sight."

Petitioner was presumed unable to

perform the duties because he is blind.

In addition the Respondents rejected

Petitioner because of the added "“ex-

pense” of hiring a second person as a

"reader". The Respondents produced no

evidence that providing reader assis-_

tance was an undue hardship on the

EEOC; in fact, the only evidence on

that issue is that it was more expen-

sive for the EEOC to hire the non-

handicapped person who was uitimately

selected for this position than it

would have been to hire Petitioner and

provide reader assistance. (App. J.)

Petitioner had previously performed

satisfactorily for the EEOC as a Law

Clerk (GS-11) and was provided reader

assistance. He was hired for this

former position by the past EEOC region-

al director, as was the one attorney

hired by the Denver EEOC who is blind

and is provided reader assistance.

Neither the Respondent Director, nor

any of the other Respondents, had ever

recommended or hired any physically

handicapped persons for employment with

the EEOC at any time.

Petitioner's affidavits showed

that he could perform the duties of

Research Analyst competently with the

services of a reader. (App. G). One

affidavit of a past EEOC director well

acquainted with the various positions

and Petitioner's job performance, states

that Petitioner could also perform the

job of “Paralegal Specialist", (PS)

which was the new name given to the

same RA job after Petitioner was re-

jected.

The person ultimately hired for

the position of Research Analyst for

which Petitioner applied did not have a

law degree, nor any previous experience

as a Law Clerk. This was significant

since the RA job like that of Law

Clerk, entailed researching and analy-

zing relevant case precedants and sta-

tistical data, as well as assessing the

litigation potential of cases and assis-

ting attorneys in litigation. In fact

there is no evidence of any particular

qualification possessed by the non-

handicapped person ultimately hired

which Petitioner did not meet or surpass.

Petitioner was precluded from showing

he could do the work in a more satis-

factory manner because Respondents

refused to consider Petitioner as he

would perform with reader assistance.

Petitioner filed suit for injunc-

tive relief, including back pay, claim-

ing Respondents violated §791(b) of the

Rehabilitation Act of 1973 and the due

process clause of the Fifth Amendment.

On November 16, 1976 the District

Court granted the Respondents’ Motion

to Dismiss the Rehabilitation Act claim.

The District Court ruled that 29 USC §701(8)

and §791(b) does not imply a private cause

of action against Federa agencies and that

Title Vil of the Civil Monts ket of 1964,

as amended, 42 USC §2000(e) et seq.,affords

no basis for relief from physical handicap

discrimination. (App. D).

On January 17, 1977 the District Court

entered an Order of Summary Judgment dis-

missing Petitioner's Fifth Amendment claim.

The District Court concluded:

"It is not arbitrary or capricious

for a government agency to estab-

lish physical requirements which

are job related and there can be

no question here that visual acuity

to enable the employee to read has

a direct relationship to the job

of assisting lawyers in the pre-

paration of evidence and data in

discrimination investigations."

(App. E).

Petitioner appealed to the Tenth

Circuit Court of Appeals and that Court

affirmed the judgment of the District

Court. The Appeals Court held: (1) that

there was n@_implied cause of action

against Federal-—agencies under 29 USC §794

and refused to even address the issue of

whether there is an implied cause of action

under 29 USC §791(b) and 5 CFR §713.401

which expressly apply to Federal agencies;

(2) that Petitioner was not entitled to

due process protections from irrebuttable

presumptions and overbroad classifica-

tions because Petitioner was not exercis-

ing fundamental constitutional rights;

and (3) that under the APA (5 USC

RO el Seb Te Pie, S hos Sal

§702, as amended) the proper standard

of review was Limited to whether the

Respondents’ action was “arbitrary and

capricious."

Petitioner's Petition for Rehear-

ing and Suggestion for Rehearing En

Banc was denied on May 17, 1979. (App.

er.

REASONS FOR GRANTING THE WRIT

1. THE DECISION OF THE COURT OF

APPEALS REFUSING TO IMPLY A

PRIVATE CAUSE OF ACTION FOR

HANDICAP DISCRIMINATION

AGAINST FEDERAL AGENCIES

CONFLICTS WITH THE HOLDING

AND REASONING OF THIS COURT

IN CORT, et al v. ASH, 422

U.S. 66 (1975).

The question is whether a private

remedy to redress a violation of §791(b)

and/or 5 CFR §713.401(1976) should be

implied by the courts when no express

remedy, sanction, or administrative

procedure_is otherwise provided by

Congress. Section §701(8) reads:

1 After Petitioner's rejection

Congress amended Title VII to make it

applicable to §791(b) cases. The Dis-

trict Court and the EEOC were correct,

however, in finding no investigatory

jurisdiction or cause of action under

Title VII for discrimination on the

basis of physical handicap at the time

of Petitioner's rejection.

"The purpose of this chapter is...

»+e-to authorize programs to...

(8) promote and expand employment

opportunities in the public and

private sectors for handicapped

individuals and to place such

individuals in employment..."

“continued

Congress’ act of amending Title

VII to include physical handicap dis-

crimination underscores Congress' intent

to implement more fully the Congression-

al anti-discimination intent in the Act

and to provide an administrative inves-

tigatory procedure. An additional and

more immediate objective of those Title

VII amendments is to eliminate private

discrimination which is not now regula-

ted in the Rehabilitation Act. As

Congressman Dodd testified before the

Oversight Hearings on the Rehabilitation

Act in the Ninety-Fourth Congress:

"However, we must go beyond the

protections afforded the handi-

capped in the Rehabilitation Act

and prohibit private discrimina-

tion in the areas of employment,

architectural barriers, housing

and transportation,"

Subcommittee on the Handicapped of

the Committee on Labor and Public Wel-

fare, United States Senate, 94th Cong.,

2d Sess., pt. 2, 321-22 (1976).

Thus, Petitioner was without expli-

cit judicial or administrative relief

when Petitioner was rejected by Respon-

dents. Congress only later, after

Under §791(b) each federal agency

in the executive branch is required to

submit an affirmative action plan to

provide for the “hiring, placement, and

advancement of handicapped individuals.

§79l1(b) also requires that such a plan

"include a description of the extent to

which, and methods whereby the special

needs of handicapped employees are

being met.”

In addition to §79l(b), the Civil

Service Commission promulgated 5 CFR

§713.401 (1976) (pursuant to 5 USC

§7153 (1970)) (sometimes referred to as

the "Regulation") which reads:

lcontinued

Petitioner's case had been rejected by

the District Court, provided an admin-

strative procedure under Title VII and

extended its anti-discrimination policy

to the private sector.

2 It is now settled that §791(b)

places affirmative action obligations

on federal agencies to meet the special

needs of the handicapped, including

reasonable accommodations for qualified

individuals. Southeastern Community

College v. Davis, U.S. Supreme Court,

No. 78-711, 47 L.W. 4689, 4692, June

11, 1979. In making this commitment to

reasonable accommodations more specific,

Congress has recently authorized heads

of federal agencies to provide readers

for blind employees at government ex-

pense. See §302, Civil Service Reform

Act’ of 1978 (Pub.L. 95-454). See also

"(a) In appointments and

position changes. In determining

the merit an tness of a person

for competitive appointment or

appointment by noncompetitive

service, the appointing officer

shall not discriminate...on the

basis of physical handicap with

respect to any position the duties

oF which may be efficiently per-

omed by a person with the physical

anitoas.* Emphasis sdees

In Cort, et al v. Ash, 422 U.S. 66

(1975) this Court promulgated a four

(4) prong test which must be followed

in order to determine whether a private

individual remedy is implicit in a

statute not expressly authorizing one.

Those four prongs are:

2continued

Federal Personnel Manual Letter 306-14

(December 29, 1978). The decision to

reject Petitioner was made before the

passage of these specific rules relating

to “readers” found in Civil Service

Reform Act of 1978. But §791(b)'s

affirmative action and reasonable accon-

modation requirements were in effect

when Petitioner was rejected. Moreover,

Respondents made no showing whatsoever

that providing Petitioner with a reader

peer be an “undue hardship" on the

"(1) Is the Plaintiff one of the

class for whose special benefit

the statute was enacted;

(2) Is there any indication of

legislative intent, explicit or

implicit, either to create such a

remedy or deny one;

(3) Is it consistent with the

underlying purposes of the legis-

lative scheme to imply such a

remedy for Plaintiff; and

(4) Is the cause of action tradi-

tionally one relegated to state

law, in an area basically the

concern of the states, so that it

would be inappropriate to infer a

cause of action based solely on

federal law."

When §791(b) is analyzed in con-

junction with 5 CFR §713.401 (1976) it

is clear that a private cause of action

is implicit under the four part Ash

test.

First, blindness or visual handi-

cap is clearly among the class of "phys-

ical handicap" and “handicapped indivi-

dual" referred to in both §791(b) and

the Regulation. See 29 USC §706(b).

Second, there is no explicit or

implicit language in §791(b) indicating

it was the intent of Congress to bar a

private caue of action. In fact the

mandatory language of the Regulation

suggests both Congress and the Executive

Branch expected that the bar on handi-

cap employment discrimination by fed-

eral agencies would have the force of

law.

Thirdly, the underlying purposes

of the Act are furthered by a private

cause of action. §701(8) states that

one purpose of the Act is to "place

such individuals [handicapped] in em-

ployment.” Moreover, the Regulation's

specific prohibition that appointment

officers for federal agencies shall not

discriminate on the "basis of physical

handicap” is clearly furthered by an

implied cause of action.

Finally, because this is a federal

agency, it is not within the state's

constitutional power or jurisdiction to

enforce local anti-discrimination laws

against federal officials and federal

law is the only available seurce for a

cause of action in this case.

The Rehabilitation Act as a whole

constitutes a civil rights scheme where-

in "federal agencies" are regulated in

§791, "federal contractors" are regula-

ted in §793 and “federally assisted

programs" are regulated in §794. The

legislative history wherein §§791, 793,

and 794 were discussed concurrently

supports the view that the Act must be

considered as an interrelated and in-

tegrated civil rights scheme.

It is,therefore, of special signif-

icance that other courts which have

deciged this issue as it applies to

other sections of the Rehabilitation

Act have unanimously found a private

cause of action implied. In Drennon v.

Philadelphia General Hospital, 428

F.Supp. 809 (E.D.Pa. 1977) the court

implied a cause of action under §793.

To hold the general affirmative action

language of §793 implies a private

remedy while similar affirmative action

language comprising §791(b) does not,

means that federal agencies, departments

and instrumentalies can continue their

practice of discriminatory action for-

bidden by the Act while federal contrac-

tors are held by a Court to compliance.

This contradicts the comments by the

Chairman of the Senate Committee on

Labor and Public Welfare that:

"one important purpose of (§791(b)

is:

"To require the Federal gov-

ernment itself act as the

model employer of the handi-

capped and take affirmative

action to hire and promote

the disabled,..."

Likewise, implying a cause of

action under §791(b) follows from the

near unaniminity of Courts which have

implied a cause of action under §794.

See Kampmeier v. Nyquist, 553 F.2d 296

(2nd Cir. 1977); Lloyd v. Regional

Transportation Authority, 546 F.2d 1277

(7th Cir. 1977); Duran v. City of Tampa,

430 F.Supp. 75 (M.D.Fla. 1977); Bartels

v. Biernat, 427 F.Supp. 226 (E.D. Wis.

; Drennon v. Philadelphia Generai

Hospital, supra; Hairston v. Drosick,

423 F.Supp. (S.D.W.Va. 1976); and

Sites v. McKenzie, 423 F.Supp. 1190

(N.D.W.Va. 1976).

Other courts have held that 5 CFR

§713.401 (1976) by itself implies a

private cause of action against federal

agencies. See Smith v. Fletcher, 343

F.Supp. 1366 (S.D. Tex. I975); and

McNutt v. Hills, 426 F.Supp. 990 (D.D.

Cs. Ret TEs

This Court should take cognizance

of the “familiar canon of statutory

interpretation that remedial legisla-

tion should be construed broadly to

effectuate its purposes." Tcherepnin

v. Knight, 389 U.S. 332, 336 (1967).

The court should imply a cause of action

which will increase the likelihood of

compliance with the statute. See,

Note, Implying Civil Remedies From

Federal Regulatory Statutes,77 Harv.L.

Rev. 285, 351 (1963).

"It is the duty of the courts to

be alert to provide such remedies as

are necessary to make effective the

congressional purpose." J.I. Case Co.

-v. Borak, 377 U.S. 426 (1964), cited

with approval in Cort, et al v. Ash,

supra, at p.84. And "it is not uncom-

mon for federal courts to fashion fed-

eral laws where federal rights are

concerned." Textile Workers Union of

America v. Lincoln Mills of Alabama,

353 U.S. 448, 457 (1957). Under the

“broad remedial purposes" of the Act it

is entirely consistent with the legis-

lative scheme to imply a private cause

of action under §791(b) for the benefit

of handicapped individuals.

As this Court said in Texas &

Pacific Railway Co. v. Rigsby, 241 U.S.

33 (1916): :

"A disregard of the command of

this statute is a wrongful act,

and when it results in damage to

one of the class for whose special

benefit the statute was enacted,

the right to recover the damges

from the party in default is im-

plied..."

241 U.S. at 39.

2. IN THE REHABILITATION ACT

CONGRESS HAS DEFINED AND

PROTECTED A FUNDAMENTAL AND

IMPORTANT RIGHT TO BE FREE

FROM HANDICAP DISCRIMINATION

AND, AS A RESULT, THE PHYSI-

CALLY HANDICAPPED ARE PRO-

TECTED BY THE FIFTH AMEND-

MENT FROM THE USE OF IRREBUT-

TABLE PRESUMPTIONS AND OVER-

BROAD CLASSIFICATIONS AND THE

DECISION OF THE COURT OF

APPEALS TO THE CONTRARY CON-

FLICTS WITH THE HOLDING AND

REASONING OF THIS COURT IN

CLEVELAND BOARD OF EDUCATION

v. LAFLEUR, 414 U.S. 632

(1974).

Affidavits of Respondents state

Petitioner was disqualified because he

is blind and would require reader assis-

tance. (App. K,L & M). Respondents

conceded in their Answer Brief in the

Court of Appeals that Petitioner was

found “not qualified for the position

because of his lack of sight." More-

over, affidavits filed by Petitioner

establish that Petitioner was better

_ qualified in all other respects than

the non-handicapped person ultimately

hired to fill this position. (App. G &

J).

Based upon the facts and factual

inferences viewed most favorable to

Petitioner it is clear Petitioner was

presumed unable to perform because of

his visual handicap and was not given a

chance to show he was otherwise quali-

fied and could perform the duties re-

quired as competently, if not more so,

than non-handicapped applicants. It is

undisputed that Petitioner was not

given an individual opportunity to

overcome the categorical, class based

presumption that he was disqualified

because of his physical handicap.

While the original position for which

Petitioner applied did not explicitly

exclude the physically handicapped

(even though Respondents used Petition-

er's handicap as a per se exclusion),

the position as later described (Para-

legal Specialist) explicitly excluded

the visually handicapped from consider-

ation and one Respondent stated in her

affidavit that this was a basis for her

refusal of Petitioner's application.

(App. L). Thus, under both Respondents'

own criteria and, later, the explicit

job requirements Petitioner was subjec-

ted to a categorical, overbroad rule of

exclusion because he is a member of a

class of persons who are visually handi-

capped.

Claiming Weinberger et al, v.

Salfi et al, 422 U.S. 749 (1975) as

authority the Court of Appeals contends

that due process does not afford Peti-

tioner the right to show that in his

case the presumption of disqualification

is not warranted because Petitioner,

ee -

17 at

unlike the plaintiffs in Cleveland

Board of Education v. LaFleur, 414 U.S.

632 (1974) is not asserting the vio-

lation of an independent constitutional

right. The Petitioner contends the

Court of Appeals has misread and mis-

interpreted the scope of both Salfi and

LaFleur and that Petitioner was not

afforded the process due under the

Fifth Amendment.

In LaFleur this Court held that

penalties imposed on individuals on the

basis of characteristics or choices

directly affecting the “basic civil

liberties" of man must not needlessly,

arbitrarily or capriciously be infringed.

In LaFleur this Court found the manda-

tory termination of pregnant teachers

to offend due process as it amounted to

a “conclusive presumption that every

pregnant teacher who reaches the fifth

or sixth month of pregnancy is physi-

cally incapable of continuing. There

is no individualized determination by

the teacher's doctor as to any parti-

cular teachers ability to continue at

her job. The rules contain an irrebut-

table presumption of physical incompe-

tency, and that presumption applies

even when the medical evidence as to an

individual woman's physical state may

be wholly to the contrary." 414 U.S. at

644.

Similarly, ros 5 Sane sy have conclu-

sively presumed Petitioner, like all

other blind applicants, is physically

incapable of performing the duties

required. There was no individualized

determination that Petitioner himself

was unable to do the work, and Petition-

er's affidavits clearly establish at

least a prima facie case that the gen-

eral rule of disqualification is not

true for this particular handicapped

person.

The Court of Appeals has read

Salfi, however, as confining the reach

of LaFleur to extend only to liberties

afforded independent constitutional

status, and rejects Petitioner's claim

because protecting the physically handi-

capped from governmental discrimination é

does not have such status. Petitioner f

contends neither LaFleur nor Salfi -

should be read so narrowly. Instead,

Petitioner is a member of a class given

special recognition and protection by

Congress in the Rehabilitation Act

making the right to be free from physi-

cal handicap discrimination fundamental

and entitled to the same due process

consideration as rights recognized by

this Court as being fundamental.

Neither Salfi nor LaFleur conines

those fundamental liberties entitled to

due process protection to liberties

discovered by this Court in the porcess

of constitutional adjudication. Con-

gress may also give definition to the

fundamental values of this society. a

This Court has often observed that i:

Congress’ judgment is given great weight

in determining and shaping Constitu-

tional doctrine. See Oregon v. Mitchell,

400 U.S. 112, 351-53 ( )3 and

Katzenbach v. Morgan, 384 U.S. 641

(1966). Petitioner contends that Con-

gress, by affording the physically q

handicapped special status and a statu-

tory right to be free from discrimina-

= DNR ATT chur

i A 24 ly et ~ CyeeayY ,

tion, has articulated a right funda-

mental enough to be afforded the same

due process treatment as was pregnancy

in LaFlueur. In fact this Court re-

cently recognized that one consequence

of anti- discrimination legislation,

even though the Constitution may not

require the same governmental restraints

in the absence of such legislation,

was to confer a right of individual

consideration on members of the protec-

ted class and to ban categorical rules

of disqualification. City of Los

Angeles, et al v. Manhart, et al, 435

U.S. 702 (1978).

Other courts have recognized that

the Rehabilitation Act creates funda-

mental rights entitled to protection

from irrebuttable presumptions and

overbroad classifications. In

Gurmankin v. Costanzo, 556 F.2d 154

(3rd Cir. 1977) the Court of Appeals

invalidated the categorical disquali-

fication of blind teachers on grounds

that the Fifth Amendment protected the

blind from irrebuttable presumptions

and afforded them an individual oppor-

tunity to show they could overcome the

handicap and perform the duties as

effectively as a non-handicapped appli-

cant. See also Drennon v. Philadelphia

General Hospital, supra, and Duran v.

City of Tampa, supra. Surely, in giv-

ing definition to the right to be free

from unjustified handicap discrimination

Congress has recognized a right as

fundamental and important as the right

to bear children and clearly more fun-

damental and important than property

claims to non-contractual disability

payments held insufficient in Salfi.3

3. THE DECISION OF THE COURT OF

APPEALS IS CLEARLY INCONSISTENT

WITH AND CONTRARY TO THE PLAIN

LANGUAGE AND CONGRESSIONAL INTENT

OF THE ADMINSTRATIVE PROCEDURE

ACT, 5 USC§702 ANDS703, AS AMENDED

The Court of appeals found that in

the absence of a cause of action under ;

the Rehabilitation Act, the Petitioner's |

claim was within the scope of the APA,

5 USC§702 and§703, as amended. 5 USC §

702, as amended, reads in relevant

part:

§702 Right of Review

" A person suffering legal wrong

3 petitioner's Fifth Amendment

claim was also rejected by the Court of

Appeals on the grounds that Petitioner

had no property right to employment.

This obviously misperceives the issue.

Petitioner's claim is that his “liberty”

interest to be free from handicap dis-

crimination was violated without due

process, not his interest in property.

This Court in LaFleur recognized that

the issue is one of whether a person's

"liberty" has been deprived in applying

the conclusive presumption doctrine.

It is not the form of the penalty, but

the right which is’ burdened, which

raises the due process issue. See

Duran v. City of Tampa, supra.

In any event, Petitioner's own

because of agency action, or

adversely affected or aggrieved by

agency action within the meaning

of a relevant statute, is entitled

to judicial review thereof..."

5 USCg§703, as amended, reads:

$703 Form and venue of proceeding

"..-If no special statutory review

proceeding is applicable, the

action for judicial review may be

brought against the United States,

the agency by its official title,

or the appropriate officer. Ex-

cept to the extent that prior,

adequate, and exclusive opportun-

ity for judicial review is pro-

vided by law, agency action is

3continued

Affidavit, as well as that of Georgia

Guilfoil, states that the EEOC had a

policy of giving EEOC Law Clerks who

did not pass the Bar first priority for

available Research Analyst positions.

The District Court explicitly found the

existence of such a policy of priority.

(App. D). Thus, even if a reasonable

expectation of employment were a pre-

requisite, the facts as found by the

District Court satisfy such a prerequi-

site. Such a policy of priority consid-

eration would provide a reasonable

basis for Petitioner's expectation of

employment as a Research Analyst and

undercuts the Court of Appeal's conclu-

sion that Petitioner had nothing more

— a "unilateral expectation" of a

job.

subject to judicial review in

civil or criminal proceedings for

judicial enforcement."

Assuming, arguendo, that there is

no implied private cause of action

under §791(b), Petitioner agrees with

the Court of Appeals that the amended

APA provides Petitioner with a cause of

action in this case. See McNutt v

Hills, 426 F.Supp. 990 (D.C.C. 1977).

The Court of Appeals, however,

held that the standard for reviewing

Petitioner's claim under the APA was

whether or not the Respondent's acts

were “arbitrary and capricious." This

is an imprecise and incorrect interpre-

tation of the APA and if allowed to

stand invites courts to disregard other

more specific standards of review which

apply to claims of specific statutory

infractions by federal officials.

Petitioner's claim is not a claim

of a generally unfair administrative

decision. Petitioner instead claims

that these Respondents violated his

specific statutory rights to be free

_from physical handicap discrimination

in Federal employment. That is, the

Respondents acted in violation of §791(b)

and 5 CFR §713.401 (1976). Accordingly,

5 USC §702 and §703 as amended, provide

Petitioner with a cause of action to

vindicate rights created by the Rehab-

ilitation Act where that same Act does

not expressly provide a cause of action

for its own violation.

The APA specifically establishes a

separate standard of review when the

individual is claiming he was the vic-

tim of agency action "...in excess of

statutory... limitations." 5 USC §706(2)

(b) reads in relevant part:

§706. Scope of review

"To the extent necessary to deci-

sion and when presented, the re-

viewing court shall decide all

relevant questions of law, inter-

pret constitutional and statutory

provisions, and determine the

meaning or applicability of the

terms of an agency action. The

reviewing court shall---

(Ep ' > seas

(2) hold unlawful and set aside

agency action, findings, and con-

clusions found to be---

(A) arbitrary, capricious,

an abuse of discretion, or

otherwise not in accordance

with law;

{(B) contrary to constitu-

tional right, power, privi-

lege, or immunity;

jurisdiction, authority, or

limitations, or short of

statutory right; (emphasis

added )

(D) without observance of

procedure required by law;

(E) unsupported by substan-

tial evidence in a case sub-

ject to §556 and §557 of this

title or otherwise reviewed

on the record of an agency

hearing provided by statute;

or :

(F) unwarranted by the facts

to the extent that the facts

Pee ere mer, ae

nem y en

are subject to trial de novo

by the reviewing court.

Courts have recognized that these

standards of review under the APA are

independent alternatives and that the

"or" preceeding the last standard clear-

ly indicates that Courts may set aside

agency action when it is “arbitrary and

capricious" or "in excess of statutory

limitation." See Schicke v. Romney,

474 F.2d 309 (2nd Cir. 1973); and

Albert Elia Bldo. Co. Inc. v. Sioux

City, Ia., 418 F.Supp. 176 (N.D.Ia.

1976).

The Court of Appeals rejected

Petitioner's claim under the APA be-

cause he failed to meet the "arbitrary

and capricious" standard of review.

Petitioner, however, clearly produced

facts in opposition to Respondents'

summary judgment motion, which, if

believed, establish a violation of

§79l1(b), see Supra: Part 1. fThus,

Petitioner was deprived of his day in

court because the Court of Appeals

incorrectly applied the more permissive

"arbitrary and capricious" standard and

did not limit its inquiry to determin-

ing whether Petitioner's facts, if

believed, establish that Respondents'

were acting in excess of the specific

limitations on physical handicap dis-

crimination found in the Rehabilitation

Act.

CONCLUSION

The Petition for Writ of Certiorari

should be granted.

Respectfully sumitted,

ENGDAHL, RENZO & REED, P.C.

Anthony 34/80 {

730 17th St.4 Suite 30

Denver, ColkOrado 80202

(303) 571-0852

COUNSEL FOR PETITIONER

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JANUARY TERM - February 23, 1979

Before the Honorable Oliver Seth,

The Honorable James K. Logan,

Circuit Judges, The Honorable H.

Dale Cook, District Judge j

MICHAEL E. COLEMAN,

)

Plaintiff- )

Appellant, )

)

vs. )

)

GEORGE DARDEN, )

Individually, and in)

his representative )

capacity as Regional)

Director of the )

Denver Litigation )

Center for the Equal)

Employment Opportun-)

ity Commission; )

ANNIE CLAY, )

Individually and in )

her representative )

Capacity as Adminis-)

trative Officer for )

the Equal Employment)

Opportunity Commis- )

sion; and )

JOHN FORD, Individ- )

ually and in his )

representative capa-)

city as Senior )

No. 77-1133

(D.C. No.

76-M-686)

ee ad her P< os A RPL

Research Analyst for)

the Equal Employment)

Opportunity Commis- )

sion, ETHEL BENT )

WALSH, Individually )

and as Acting Chair-)

man of the Equal )

Employment Opportun-)

ity Commission,

Defendants,

Appellees.

et ee ee eee

This cause came on to be heard on

the record on appeal from the United

States District Court for the District

of Colorado, and was signed by counsel.

Upon consideration whereof, it is

ordered that the judgment of that Court

is affirmed.

HOWARD K. PHILLIPS, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 77-1133

MICHAEL E. COLEMAN,

)

Plaintiff- )

Appellant, )

)

vs.

GEORGE DARDEN,

Individually, and in)

his representative )

capacity as Regional)

Director of the )

Denver Litigation )

‘Center for the Equal)

Employment Opportun-)

ity Commission; )

ANNIE CLAY, )

Individually and in )

her representative )

capacity as Adminis-)

trative Officer for )

the Equal Employ- )

ment Opportunity )

Commission; and )

JOHN FORD, Individ- )

ually and in his )

representative capa-)

city as Senior )

Research Analyst for)

the Equal Employment)

Appeal From The

United States

District Court

For The District

Of Colorado

No. 76-M-686

SPREE BS

sn seh

Opportunity Commis- )

sion, ETHEL BENT )

WALSH, Individually )

and as Acting Chair-)

man of the Equal )

Employment Opportun-)

ity Commission,

Defendants,

Appellees.

ee ee eee

Anthony F. Renzo of Engdahl, Renzo &

Reed, P.C., Denver, Colorado, for

Plaintiff- Appellant.

Abner W. Sibel, General Counsel, Joseph

T. Eddins, Associate General Counsel,

Beatrice Rosenberg, Assistant General

Counsel, Sharyn Danch, Attorney, Equal

Employment Opportunity Commission,

Washington, D.C., for Defendants-

Appellees.

Before SETH and LOGAN, Circuit Judges,

and COOK, District Judge*.

COOK, District Judge.

ee a ©

* of the Northern, Eastern and Western

Districts of Oklahoma, sitting by

Designation.

This case is before us on appeal

from:'a final order of the United States

District Court for the District of

Colorado granting summary judgment in

favor of the defendants-appellees (here-

inafter referred to as “defendants").

In his complaint, the plaintiff-appellant,

Michael E. Coleman (Coleman), alleged,

inter alia, that the defendants had

discriminated against him because of a

physical handicap in violation of the

Rehabilitation Act of 1973, 29 U.S.C.

§791 et seq. and the Fifth Amendment to

the United States Constitution. He

sought review of the defendants' actions

under those provisions and also under

the Administrative Procedure Act, 5

U.S.C. §701 et seg. The District Court

entered judgment in behalf of the defen-

dants, holding that the Rehabilitation

Act of 1973 did not create an implied

Private cause of action and that the

undisputed facts did not demonstrate a

violation of Coleman's Fifth Amendment

Rights. This appeal followed.

At the time of the acts complained

of, Coleman was a twenty-nine (29) year-

old white male who became totally blind

in 1960. Despite this handicap, he

received an under-graduate degree from

Louisiana State University in 1970 and

a law degree from the University of

Denver in 1974. From January 1, 1974

to January 1, 1975, Coleman was employed

as @ part-time case analyst by the

Denver Regional Office of the General

Counsel, Equal Employment Opportunity

Commission (EEOC). Beginning on January

1, 1975, Coleman became a law clerk in

the same office. In both positions, he

was provided the services of a part-

time reader, and his performance was

entirely satisfactory. At the time he

accept®d the law clerk position, Coleman

understood that he would be terminated

if he was not admitted to the bar within

fourteen (14) months. He did not gain

the requisite bar admission and was

terminated on March 1, 1976. The appro-

priateness of that termination has not

been challenged.

In November of 1975, anticipating

his termination, Coleman applied for a

position as a research analyst in the

Denver office of the EEOC. He was one

of seven applicants whose names were

referred to the Denver office for con-

sideration. Defendants Clay and Ford

were assigned the task of reviewing the

applications and filling the position.

They did not hire Coleman, choosing

instead a female applicant who is not

visually handicapped. Coleman filed a

grievance with the EEOC but was advised

that because there was no established

procedure for handling grievances based

upon handicap discrimination, his com-

Plaint would not be investigated.

Following his unsuccessful attempt to

proceed administratively, Coleman filed

this suit in the District Court.

_ In view of the issues raised in

this appeal, it is necessary to examine

the primary duties and responsibilities

of the jobs in issue, as set forth in

the applicable position descriptions.

The position of law clerk, from which

Coleman was terminated’ for failure to

gain admission to the bar, included the

following duties and responsibilities:

Preparing drafts of opinion letters

involving interpretations of Title VII;

reviewing contracts for legal sufficiency;

providing legal counsel and assistance

in the preparation of briefs; drafting

administrative regulations and examining

regulations for conformance with the

requirements of Title VII. (R.135-139)

The position description for re-

search analyst, the job for which Cole-

man was not selected, reveals the follow-

ing duties and responsibilities, among

others: assisting in the analysis of

the litigative potential of cases;

researching and analyzing relevant case

precedents and statistical and socio-

economic data; reviewing and preparing

material required to aid the attorney

in litigating cases; developing work

sheets for compilation of statistical

data; interpreting computer formats and

printouts; compiling and analyzing

labor force data; evaluating seniority

systems and testing patterns; assisting

in the preparation of materials required

for discovery and aiding in the prepara-

tion of remedial orders. (R.48-53)

There is a third position which,

although not directly in issue here, is

relevant in view of the claims made by

Coleman. That position is paralegal

specialist, the duties and responsibil-

ities of which included the following:

researching and analyzing legal decisions;

compiling substantive information on

statutes and legal instruments; preparing

cases for civil litigation, including

the collection, analysis and evaluation

of evidence; analyzing facts and legal

questions presented by personnel adminis-

tering specific Federal laws and perfor-

ming other paralegal duties requiring

discretion and independent judgment in

the application of specialized knowledge

of particular laws. (R.92-93) The

position description for paralegal

specialist also contained the following

physical requirement: "Ability to read

without strain printed material the

size of typewritten characters is re-

quired, corrective lenses permitted."

(R.96) Neither the law clerk posiiton

nor the research analyst position speci-

fically required the ability to read.

In March of 1976, after the research

analyst position in issue had been

filled, that position was reclassified

as a paralegal specialist position.

The two positions thereby became one,

and the position description became the

same as that of the former research

analyst. (R.130-134)

In assessing motions for summary

judgment, we must consider factual

inferences tending to show triable

issues in the light most favorable to

the existence of those issues, Stevens

v. Barnard, 512 F.2d 876 (10th Cir.

1975), and pleadings and other documen-

tary evidence must be construed liberally

in favor of the party opposing the

motion. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970); Webb v. Allstate Insurance

Co., 536 F.2d 336 (10th Cir. 1976);

Stevens v. Barnard, supra. The burden

is upon the moving party to show, beyond

a reasonable doubt, the absence of a

genuine issue as to any material fact.

Adickes v. S.H. Kress & CO., supra;

Mogle v. Sevier County School District,

546 F.2d 478 (10th Cir. 1976); Stevens

v. Barnard, supra. However, under Rule

56(e) of the Federal Rules of Civil

Procedure, once a properly supported

summary judgment motion is made, the

opposing party may not rest on the

allegations contained in his complaint,

but must respond with specific facts

showing the existence of a genuine

factual issue to be tried. Adickes v.

S.H. Kress & Co., supra; First National

Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d

569 (1968), rehearing denied 393 U.S.

901 (1968); Brown v. Ford Motor Company,

494 F.2d 418 (10th Cir. 1974).

FIFTH AMENDMENT CLAIM

Coleman contends that the defendants

deprived him of his rights to due pro-

cess under the Fifth Amendment by crea-

ting an irrebuttable, or conclusive,

presumption that he could not satisfac-

torily perform the job of research

analyst because of his physical handicap.

He claims that he could have performed

the job with the assistance of a reader

and that because of his previous satis-

factory performance, he should have

been given the opportunity to demonstrate

his ability to perform the job of re-

search analyst.

Statutes creating permanent irre-

buttable persumptions, which are neither

necessarily nor universally true, are ‘ |

disfavored under both the Fifth and |

Fourteenth Amendments, because they

preclude individualized determination

of the facts upon which substantial

10a

rights or obligations may depend.

Vlandis v. Kline, 412 U.S. 441, 93

S.Ct. 22390, 37 L.Ed.2d 63 (1973). For

instance, in Cleveland Board of Educa-

tion v. LaFleur, 414 U.S. 632, 94 S.Ct.

791, 39 L.Ed.2d 52 (1974), the Supreme

Court invalidated a school board rule

which presumed a pregnant teacher phys-

ically incapable of teaching for several

months before and after the birth of

her child; Vlandis v. Kline, supra,

involved a statutory presumption of

residency for purposes of college tui-

tion; Stanley v. Illinois, 405 U.S.

645, 92 S.Ct. 1208, 31 L.Ed.2d 551

(1972), involved a statute which pre-

sumed an unwed father unfit to raise

his own children. We believe that

Coleman's claim based upon the doctrine

of conclusive presumptions fails for

several reasons.

As noted above, the primary evil

of conclusive, or irrebuttable, presump-

tions is their failure to provide an

opportunity for an individualized deter-

mination of the relevant facts. In

support of their motion for summary

judgment, the defendants submitted

affidavits from the person responsible

for filling the research analyst posi-

tion. Those affidavits reveal that

Coleman's name was among seven referred

to the Denver office for consideration

for that position. (R.46) The selec-

tion panel had before it Coleman's

application, (R.120-121) which did not

reveal his visual handicap, and his

latest performance evaluation. (R.81;

87) The panel discussed and considered

the strengths and weaknesses of each

candidate before making its selection.

lla

(R.116) In opposition to those affida-

vits, Coleman relied upon the allegations

in his complaint that the defendants

disqualified him from any consideration

for the position because of his visual

handicap. However, in view of the

affidavits filed by the defendants,

those allegations were insufficient to

raise a factual issue. The unrebutted

evidence is that Coleman's application

was given the individual consideration

lacking in the ordinary conclusive

presumption situation.

Furthermore, cases invalidating

conclusive presumptions, including

those cases relied upon by Coleman,

have done so in the context of a sta-

tute (Vlandis v. Kline, supra; Stanley

v. Illinois, supra; Heiner v. Donnan,

285 U.S. 312, 52 S.Ct. 358, 76 L.Ed.

772 (1932); Schlesinger v. Wisconsin,

270 U.S. 230, 46 S.Ct. 260, 70 L.Ed.

557 (1926), a policy (Gurmankin v.

Costanzo, 556 F.2d 184 (3rd Cir. 1977);

Duran v. City of Tampa, 430 F. Supp. 75

(M.D.Fla. 1977), a rule (Cleveland

Board of Education v. LaFleur, supra),

Or a constitutional provision

(Carrington v. Rash, 380 U.S. 89, 85

S.Ct. 775, 13 L.Ed.2d 675 (1965) appli-

cable to a designated, identifiable

class of persons. There is no evidence

in the record of this case, and, in

fact, no allegations in the complaint,

that the defendants excluded blind

persons as a class from consideration

for the position of research analyst,

or for any other position, or that any

statute, policy or rule operated to

exclude that class of persons. Coleman

alleges only that he was personally and

12a

eee baetge sg excluded from consideration

because of his visual handicap.

Even if the facts of this case

might otherwise justify the application

of the concept of irrebuttable presump-

tion, the opinion of the United States

Supreme Court in Weinberger v. Salfi,

422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d

522 (1975), indicates that the nature

of Coleman's interest might render the

Court inapplicable in this case. In

Salfi, which involved a statutory pre-

sumption under the Social Security Act,

the Court found that the social welfare

programs involved did not ". . . involve

affirmative Government action which |.

seriously curtails important liberties

cognizable under the Constitution," 422

U.S. at 749, and that the presumption

was rationally related to a legitimate

legislative goal. The Court held that,

under the circumstances, no individual-

ized determinations were necessary and

distinguished the situation before it

from that present in Stanley v.

Illinois, supra, in which the Court had

characterized the rights to conceive

and raise one's children as basic civil

rights of man and as" .. . rights far

more precious .. . than property rights."

405 U.S. at 645. The interest of the

plaintiff in this case is closer to a

property right than to one of the "impor-

tant liberties cognizable under the

Constitution," and the conclusive pre-

sumption doctrine might well be inappli-

cable to the facts of this case. See

Mogle v. Sevier County School District,

supra, in which this Court rejected a

conclusive presumption argument in an

employment situation somewhat similar

13a

to the one present in this case.

In conclusion, we do not believe

that the conclusive presumption doctrine

was intended to apply to a factual

Situation of the type now before us.

Whenever a person seeking employment is

rejected on the basis of an application,

there is necessarily a "presumption"

that he would be unable to perform the

job as satisfactorily as the person

hired. Such an unsuccessful applicant

could always contend that he should be

permitted an opportunity to prove that

he could adequately perform the job,

despite his apparent lack of qualifica-

tions. Merely because such "presump-

tions" are a fact of business life does

not mean that "trial periods" should be

required for all, or even all handicapped

applicants, and certainly not if an

applicant's qualifications are individu-

ally considered in relation to legiti-

mate job requirements. The undisputed

evidence in this case is that Coleman

was given such individual consideration.

Aside from the inapplicability of

the conclusive presumption doctrine, we

do not feel that Coleman's interest

rises to the level of that protected by

the Fifth Amendment. The requirements

of procedural due process apply only to

the deprivation of those liberty and

property interests encompassed by the

Fifth and Fourteenth Amendments. Board

of Regents v. Roth, 408 U.S. 564, 92

S.Ct. 2701, 33 L.Ed.2d 548 (1972).

There is no constitutionally protected

right to government employment. Talbot

v. Pyke, 533 F.2d 331 (6th Cir. 1576);

Orr v. Trinter, 444 F.2d 128 (6th Cir.

14a

1971), cert. denied 408 U.S. 943 (1972).

To have a property interest

in a benefit, a person clear-

ly must have more than an

abstract need or desire for

it. He must have more than a

unilateral expectation of it.

He must, instead, have a

legitimate claim of entitle-

ment to it.

Board of Regents v. Roth, supra, 408

U.S. at 577. Coleman has not demonstra-

ted any legitimate claim of entitlement

to the job of research analyst, and it

is difficult for us to imagine how he

could have done so. The record before

us clearly indicates that his interest

in that particular job was in the nature

of a “unilateral expectation" or an

"abstract need or desire." In Cafeteria

& Restaurant Workers Union v. McElroy,

367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d

1230 (1961), the Supreme Court refused

to extend Fifth Amendment protection to

one whose employment was effectively

terminated by the actions of the United

States Government and whose property

interest was therefore far more signifi-

cant than Coleman's. The petitioner in

that case had been employed on a military

installation by a private restaurant

under contract with the Federal govern-

ment. The commanding officer of the

installation revoked the petitioner's

right to enter the premises for failure

to meet the security requirements. The

petitioner contended that she had been

denied due process under the Fifth.

Amendment. The Court found that her

interest was not the right to follow a

——

15a

chosen trade or profession and that she

was entirely free to obtain any type of

job with any employer; "[a])1l that was

denied her was the opportunity to work

at one isolated and specific military

installation." Id., 367 U.S. at 896.

The Court also noted that the govern-

ment's action had not operated to bestow

a badge of disloyalty or infamy, with

an attendant foreclosure from other

employment opportunity. Finding that

the case involved the Federal government's

dispatch of its own internal affairs,

the Court rejected the petitioner's

Fifth Amendment claims. The reasoning

of that case is equally applicable to

the action of the government in the

case before us. Coleman has not been

deprived of any rights protected by the

Fifth Amendment.

STATUTORY CLAIMS

Coleman appeals from the District

Court's conclusion that no private

cause of action can be implied from the

Rehabilitation Act of 1973, 29 U.S.C. §

791 et seq., and specifically from 29

U.S.C. §794. That section provides as

follows:

No otherwise qualified handi-

capped individual in the |

United States, as defined in

section 706(6) of this title,

shall, solely by reason of : |

his handicap, be excluded |

from the participation in, be

denied the benefits of, or be

subjected to discrimination

under any program or activity

receiving Federal financial...

assistance. es

l6a

Every Circuit Court of Appeals which

has addressed the issue has held that a

private cause of action can be implied

from the statute against the proper

defendants. See Davis v. Southeastern

Community College, 574 F.2d 1158 (4th

Cir. 1978); United Handicapped Federa-

tion v. Andre, 558 F.2d 413 (8th Cir.

1977); Kampmeier v. Nyquist, 553 F.2d

296 (2nd Cir. 1977); tas’ v. Regional

Transportation Authority, 548 F.2d 1277

(7th Cir. 1977). Assuming that such a

cause of action might be implied under

certain circumstances, we do not believe

that a Federal agency can be considered

a “program or activity receiving Feder-

al financial assistance" under §794.

See Federal Employees for Non-Smokers'

Rights (FENSR) v. United States, 446

F.Supp. 181 (D.D.C. 1978). Federal

agencies are specifically covered by

the affirmative action program require-

ments of 29 U.S.C. § 791(b). The regu-

lations enacted under § 794 define

"recipient" and “Federal financial

assistance" in terms which, when ration-

ally construed, do not apply to Federal

agencies. 45 C.F.R. § 84.3. According-

ly, we conclude that, under the circum-

stances of this case, the District

Court was correct in refusing to recog-

nize an implied private cause of action

against these defendants under 29 U.S.C.

§ 794.

Coleman also contends that he has

a right to judicial review of the defen-

dant's actions under the Administrative

Procedure Act, 5 U.S.C. §701 et seq.

Some Federal courts have permitted

persons claiming Federal handicap dis-

crimination to seek judicial review of

tems =~

— ee

17a

Federal agency action under 5 U.S.C.

§702, Ryan v. Federal Deposit Insurance

Corporation, 565 F.2d TE [es Gare

hair McNutt v. Hills, 426 F. Supp.

990 (D.D.C. 1977); Smith v. Fletcher,

393 F.Supp. 1366 (S.D. Tex. 1975),

aff'd 559 F.2d 1014 (5th Cir. 1977),

and at oral argument, the defendants

conceded Coleman's right to bring a

cause of action for judicial review

under that statute. Under the applica-

ble standard of review, the agency's

action can be set aside only if it is

"arbitrary and capricious." 5 U.S.C.

§706(2)(A); McNutt v. Hills, supra.

Review under this provision

of the A.P.A. provokes in-

quiry whether the administra-

tive decisions were based on

a consideration of all the

relevant factors and whether

there was a clear error of

judgment. Citizens to

Preserve Overton Park v.

Volpe, 401 U.S. 402, 416, 91

S.Ct. 814, 28 L.Ed.2d 136.

Although this inquiry into

the facts is to be searching

and careful, the ultimate

standard of review is a narrow

one. The Court is not empow-

ered to substitute its judg-

ment for that of the agency.

Id. The Court's function is

exhausted where a rational .

basis is found for the agency

action taken.

Sabin v. Butz, 515 F.2d 1061, 1067

(10th Cir. 1975). Before administrative

action will be set aside as arbitrary

18a

and capricious, the party challenging

the action must prove that it was will-

ful and unreasoning action, without

consideration and in disregard of the

facts and circumstances of the case.

First National Bank of Fayetteville v.

Smith, 508 F.2d 1371 (8th Cir. 1974),

cert. denied 421 U.S. 930 (1975).

In the area of federal regulation

of government employees, the governmen-

tal employer has virtually uncontrolled

latitude in decisions as to hiring and

firing, so long as its actions are

lawful and rationally based. United

States v. Testan, 424 U.S. 392, 96

S.ct. 948, 47 L.Ed.2d 114 (1976); Arnett

v. Kennedy, 416 U.S. 134, 94 S.Ct.

1633, 40 L.Ed.2d 15 (1974); Cafeteria &

Restaurant Workers Union v. McElroy,

supra. As the Supreme Court said in

Keim v. United States, 177 U.S. 290 at

292, 20 S.Ct. 574, 44 L.Ed. 774 (1900):

The appointment to an official

position in the Government,

even if it be simply a cleri-

cal position, is not a mere

ministerial act, but one

involving the exercise of

judgment. The appointing

power must determine the

fitness of the applicant;

whether or not he is the

proper one to discharge the

duties of the position.

Therefore it is one of those

acts over which the courts

have no general supervising

power.