# Petition — Coleman v. Darden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0715%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 927 ## Text @ 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 ii 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, 20 24 la 3a 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 ee OO 2 eee. » STATUTES 5 U.S.C. 5 U.S.C. 5 U.S.C. 5 U.S.C. 5 C.F.R. 28 U.S.C. 29 U.S.C. 29 U.S.C. 29 U.S.C. 29 0.8.C. 29 U.S.C. 42 U.S.C. vi 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 10 14 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 6 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 ee 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 10 "(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 ll "(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- 12 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 -_ 13 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 14 §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): : 15 "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 & 16 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- 18 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 , 19 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 20 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 21 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. 22 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 23 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; (C) in excess of statutory 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 24 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. 25 Respectfully sumitted, ENGDAHL, RENZO & REED, P.C. lt Anthony 34/80 { 730 17th St.4 Suite 30 Denver, ColkOrado 80202 (303) 571-0852 COUNSEL FOR PETITIONER la 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 2a 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 3a 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 4a 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. 5a 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- 6a 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 Ja 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- 8a 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 9a 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. See also Bookman v. United States, 453 tt ee ee