Petition — MILDRED ESTES BROWN ROGERS v. Frito Lay, Inc. (Nos. 79-1810, 79-1809)

Supreme Court brief1980

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 7G-'tlif

MILDRED LEE ROGERS,

Petitioner

versus

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES C. BARBER

5217 Ross Avenue

Suite 318

Dallas, Texas 75206

Counsel for Petitioner

LDWARD B. CLOUTINAN,

Attorney at Law

3204 Elmbro@k, Suite

Dallas, Texas 75247

me a pee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

MILDRED LEE ROGERS,

Petitioner

versus

FRITO-LAY, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES C. BARBER

5217 Ross Avenue

Suite 318

Dallas, Texas 75206

Counsel for Petitioner

INDEX

Opinions BOLOW ..ccsersiccevcsises ace cae

Jurisdiction e*eeee#*ee#ee#eeeeee@e#se#e#eee#ee#ee#ee#e#ee#ee#ee#e#*# 2

Questions PrOeeeses acketasaccsccoceece 3

Constitutional and Statutory

Provisions INVOLVEG wecccsccccece 3

Statement of the Case ............-. 8

Reasons for Granting the Writ

l. The Court Below Has Decided

A Federal Question In A Way

In Conflict With This

Court's Decision In Cort v.

Ash, 422 U.S. 66 (1975) and

Cannon v. University of

Chicago, 441 U.S. 677

(SETS sc ee bis cco es céKes ee 12

2. The Issue Involved In This

Case Is Of Vital Importance

To Handicapped Persons In

This Country, Who Are Now

Without A Remedy In The

Majority Of Cases Of

Handicap Discrimination ..... 16

Conclusigm ss cb.bee bbb bo edakaccsarvee 20

Proot:GS GErVaee ws ee beseccececoce 2a

Appendix "A" -- Opinion and

Judgment of the Fifth Circuit ... la

CITATIONS (Continued)

Cases:

Bell v. Hood, 327 U.S. 678

(1946) eceeeeeeeeeeeeeeeeeeeeeee 17

Cannon v. University of Chicago,

Sak ce Olt TASTE? Re veeroevseoss.. AReaee

Cort wv. Aen. 422 9.8. 66 (2275S) «se: 20 538%

Moon v. Roadway Express, Inc.,

433 F.Supp. 200 (1977 ........2..- 2

Rogers v. Frito-Lay, Inc.,

611 F.2d 1074 (5th Cir. 1980) .. 2

Transamerica Mortgage Advisors,

Inc. v. Lewis, U.S. P

Loe Batts Bee LTE ove was cen ue 20

Touche Ross & Co. v. Redington,

442 U.S. , 99 §.Ct. 2479

(1979) e*eeeeeseeesenseneteeee3eseeee#e##8e#8e8¢@ 10

Constitutional and

Statutory Provisions:

28 U.8.<C.i. Bectson 125611). scocacts a

29: 6.6 8s. Beeson: 798. vcéecvcavcnd” 250 5ak

29 eck. Section 794 eeeee#e3se+7#3#e#e#ee#ee#es¢ 6,9,10,16

29. U.8.C sv GROCLOl FICE wie dee ba oes -Feue

iii

CITATIONS (Continued)

Constitutional and

Statutory Provisions

(continued) :

42 U.S.C. Section 2000e-5, 16 .... 7

Bar Balctcs. BOSTAON BOCGU. 6s0s's 600%

Pag. Re: Civ. Pe 231) (2) (3). we cvs

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

MILDRED LEE ROGERS,

Petitioner

versus

FRITO-LAY, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Mildred Lee Rocers, an in-

dividual and former employee of the respon-

dent Frito-Lay, Inc., prays that writ of

certiorari issue to review the judgment and

opinion of the United States Court of

Appeals for the Fifth Circuit entered in

this proceeding on February 15, 1980. This

case was consolidated with Moon v. Roadway

Express, Inc., No. 77-3263, in which writ

of certiorari may also be sought, but that

is unknown to your petitioner at this time.

OPINICNS BELOW

The opinion and judgment of the

District Court is reported at 433 F.Supp.

200. The opinion of the Court of Appeals

is set forth in Appendix "A", and is re-

ported at 611 F.2d 1074 (5th Cir. 1980).

No motion for rehearing was filed by either

petitioner or Howard Moon.

JURISDICTION

The judgment of the Court of Appeals

was entered on February 15, 1980. No motion

for rehearing en banc was filed. This peti-

tion for certiorari was timely filed within

90 days of that date. The jurisdiction of

this Court is invoked under the provision

of 28 U.S.C. Section 1254(1).

on Qos

QUESTIONS PRESENTED

Whether or not Section 503 of the

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

section 793, impliedly authorizes a handi-

capped person to file a private civil

action in federal court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

29 U.S.C. sections 793, 794 and 794(a)

provide as follows:

§ 793. Employment under Federal contracts

Amount of contracts or subcontracts;

provision for employment and

advancement of qualified handicapped

individuals; regulations

(a) Any contract in excess of $2,500

entered into by any Federal department or

agency for the procurement of personal pro-

‘perty and nonpersonal services (including

construction) for the United States shall

contain a provision requiring that, in

employing persons to carry out such con-

tract the party contracting with the

’%

-4-

United States shall take affirmative action

to employ and advance in employment quali-

fied handicapped individuals as defined in

section 706(7) of this title. The provi-

sions of this section shall apply to any

subcontract in excess of $2,500 entered

into by a prime contractor in carrying out

any contract for the procurement of per-

sonal property and nonpersonal services

(including construction) for the United

States. The President shall implement the

provisions of this section by promulgating

regulations within ninety days after

September 26, 1973.

Administrative enforcement;

complaints; investigations;

departmental action

(b) If any handicapped individual

believes any contractor has failed or

refuses to comply with the provisions of

his contract with the United States,

relating to employment of handicapped

-5-

individuals, such individual may file a

complaint with the Department of Labor.

The Department shall promptly investigate

such complaint and shall take such action

thereon as the facts and circumstances

warrant, consistent with the terms of such

contract and the laws and regulations appli-

cable thereto.

Waiver by President; national

interest special circumstances

for waiver of

particular agreements

may be waived, in whole or in part, by the

President with respect to a particular con-

tract or subcontract, in accordance with

guidelines set forth in regulations which

he shall prescribe, when he determines that

special circumstances in the national

interest so require and states in writing

his reasons for such determination.

°%

-O-

§ 794. Nondiscrimination under

federal grants and programs;

promulgation of rules

and regulations

No otherwise qualified handicapped

individual in the United States, as defined

in section 706(7) of this title, shall,

solely by reason of his handicap, be ex-

cluded from the participation in, be denied

the benefits of, or be subjected to dis-

crimination under any program or activity

conducted by an Executive agency or by the

United States Postal Service. The head of

each such agency shall promulgate such

regulations as may be necessary to carry

out the amendments to this section made by

the Rehabilitation, Comprehensive Services,

and Development Disabilities Act of 1978.

Copies of any proposed regulation shall be

submitted to appropriate authorizing com-

mittees of the Congress, and such regula-

tion may take effect no earlier than the

thirtieth day after the date on which such

regulation is so submitted to such commit-

tees.

§ 794a. Remedies and

attorney fees

(a) (1) The remedies, procedures, and

rights set forth in section 717 of the

Civil Rights Act of 19642’, including the

application of sections 706(f) through

706 (k)2/

, Shall be available, with respect

to any complaint under section 791 of this

title, to any employee or applicant for

employment aggrieved by the final disposi-

tion of such complaint. In fashioning an

equitable or affirmative action remedy

under such section, a court may take into

account the reasonableness of the cost of

See 42 U.S.C.A. sec. 2000e-16.

mc See 42 U.S.C.A. sec. 2000e-5(£)-(k)

inn

any necessary work place accommodation,

and the availability of alternatives there-

for or other appropriate relief in order to

achieve an equitable and appropriate remedy.

(2) The remedies, procedures, and

rights set forth in title VI of the Civil

Rights Act of 19642/ shall be available to

any person aggrieved by any act or failure

to act by any recipient of Federal assis-

tance under section 794 of this title.

(b) In any action or proceeding to

enforce or charge a violation of a provi-

sion of this subchapter, the court, in its

discretion, may allow the prevailing party,

other than the United States, a reasonable

attorney's fee as part of the costs.

See 42 U.S.C.A. sec. 2000d et seq.

=9—

STATEMENT OF THE CASE

This is an action initially brought

under 29 U.S.C. sections 793 and 794 by

petitioner Mildred Lee Rogers on or about

November 1l, 1976, in the District Court of

the Northern District of Texas, Dallas

Division, Judge William M. Taylor presid-

ing. Petitioner alleged that she was a

qualified handicapped individual, within

the meaning of the law, and had been dis-

charged from her employment with defendant

because of her handicap. She also alleged

a class action pursuant to Fed. R. Civ. P.

23(b) (2) and (3). After preliminary dis-

covery and an exchange of briefs, the trial

court entered a summary judgment on June 8,

1977 for the defendant, holding that no

private cause of action may be implied

under section 793. Previous discovery had

already established that defendant was not a

recipient of public funds so as to subject

-10-

it to 29 U.S.C. section 794, but it is un-

disputed that it is a government contractor

subject to the provisions of section 793.

On or about July 20, 1977 appeal was

perfected by petitioner to the Fifth

Circuit Court of Appeals, and this case was

argued on June 18, 1979. Thereafter, on

February 15, 1980 the Fifth Circuit decided

this case against petitioner, Judge Goldberg

dissenting, resulting in this application

for certiorari in this Court. The essence

of the holding of the majority of the

panel was that, after application of the

decisional rules laid down by this Court in

Cort v. Ash, 422 U.S. 66 (1975); Cannon v.

University of Chicago, 441 U.S. 677 (1979);

Transamerica Mortgage Advisors, Inc. v.

Lewis, 9:8. » 208: 6.Ce. 262 (197923

and Touche Ross & Co. v. Redington, 442

-lle

U.S. _, 99 S.Ct. 2479 (1979), it did not

believe Congress intended to imply a private

right of action.

It is petitioner's position, and was

at the trial court and the court of appeals,

that after application of the four-pronged

test of Cort v. Ash, supra, and particularly

after this Court's decision in Cannon, supra,

that a private right of action should be

implied in the present case on behalf of

qualified handicapped persons, because the

statute was enacted for the special benefit

of handicapped persons; there is clear evi-

dence of legislative intent to create such

an action, particularly in view of the 1978

Amendments to the Act, 29 U.S.C. 794a, pro-

viding for attorney's fees for private

judicial action under section 793; a private

remedy would compliment and enhance the

administrative enforcement scheme under the

Act rather than frustrate it, with which

-12-

the Labor Department agrees; and this type

of action is clearly not one traditionally

relegated to state law, with which the

Fifth Circuit agreed.

REASONS FOR GRANTING THE WRIT

i. The Court Below Has Decided A

Federal Question In A Way In

Conflict With This Court's

Decision In Cort v. Ash, 422

U.S. 66 (1975) and Cannon v.

University of Chicago, 441

U.S. 677 (1979).

Since there was an eloquent dissent by

Judge Goldberg setting out most of the argu-

ments for granting of certiorari in this

case, petitioner will defer for the most

part to that dissent as a basis for this

petition. (See Appendix "A", slip opinion,

pp. 3246-3273) However, we believe that a

brief parallel to this Court's decision in

Cannon will demonstrate the conflict.

In Cort v. Ash, supra, this Court set

out the four factors which form the basis

for the analysis of congressional intent

-13-

to create a private right of aétion 2” In

Cannon, supra, this Court found, in deciding

to imply a private right of action under

Section 90l1(a) of Title IX of the Education

Amendments of 1972 (Title IX), that Title

IX presented the "atypical situation" in

which all the Cort criteria were satisfied.

99 S.Ct. at 1968. It is petitioner's posi-

tion that the present case also satisfies

all four Cort tests, and Judge Goldberg

agreed. Goldberg dissent, App. A, p. 3252.

= "First, is the plaintiff ‘one of the

class for whose especial benefit the statute

was enacted," .. . that is, does the stat-

ute created a federal right in favor of the

plaintiff? Second, is there any indication

of legislative intent, explicit or implicit,

either to create such a remedy or to deny

one? .. . Third, is it consistent with the

underlying purpose of the legislative

scheme to imply such a remedy for the

plaintiff? And finally, is the cause of

action one traditionally relegated to state

law, in an area basically the concern of

the states, so that it would be inappro-

priate to infer a cause of action based

solely on federal law?" 422 U.S. 66, 78.

=l4=

Test 1: Special benefit test

Cannon

Emphasis of "unmistakable

focus on the benefitted

class . . .," through the

explicit declaration of

a federal right; 99

S.Ct. at 1954.

Test 2: Legislative

Rogers

Present also, although

emphasis is on the

benefitted class;

provides an express

procedural remedy for

the qualified handi-

capped employee,

albeit ineffective;

clearly designed to

benefit handicapped

employees as opposed

to the general public;

App. B, p. 3255, 3256.

intent test

Cannon

Clear evidence of leg-

islative intent: Court

considered non-conten-

porary evidence of

legislative intent; 99

S.Ct. at 1952, n.7.

Rogers

Present also, through

non-contemp. evidence

of legislative intent,

which the Circuit

Court erroneously ig-

nored; App. B, Pp.

3242.

Test 3: Consistency with underlying

legislative scheme test

Cannon

Agency urged a private

remedy--Court relied

heavily on this factor;

99 S.Ct. at 1262-63;

Rogers

Also present--but ig-

nored by the Circuit

Court; App. B, Pp.

3245;

-15-=

Court relied on the fact Also present, but

that handicapped persons ignored by Court;

were not allowed to parti-

cipate in administrative

process, and no remedy was

provided for them; 99

S.Ct. at 1962-63;

Court relied on the fact Also present, but ig-

that the agency may simply nored by Court;

decide not to investigate;

Id.

Test 4: Not traditionally relegated to

state law

Cannon Rogers

Found not to have been Fifth Circuit also

so relegated by this found this factor--

Court; considered it undis-

puted; App. B, p. 3238,

n.4.

When the foregoing schematic analysis

is applied to the judgment of the Circuit

Court in this case, it is seen that the

opinion of the majority of the panel is

in direct conflict with the holding of this

Court in Cannon v. University of Chicago,

441 U.S. 677 (1979). The particular vices

of the court's judgment and opinion are

set out eloquently in Judge Goldberg's dis-

sent.

-16-

Y The Issue Involved In This

Case Is Of Vital Importance

To Handicapped Persons In

This Country, Who Are Now

Without A Remedy In The

Majority Of Cases Of

Handicap Discrimination.

Unquestionably, although there are a

small percentage of claims that will still

be maintainable under 29 U.S.C. section

794, against federal grant recipients,

most handicap discrimination claimants

will be without a remedy, unless the em-

ployer out of the goodness of his heart

can be persuaded to award backpay and/or

reinstatement. Many, many others will be

relegated to the same fate as Howard Moon

in the companion case to petitioner's--to

be told that the employer is willing to

take no further action, and therefore that

the Labor Department is closing the file.

(See App. "A", p. 3249) This is simply be-

cause there is no express provision for

individual relief in the legislative scheme,

-l17-

and thus the persons who Congress most in-

tended to benefit by this law will go

wanting--unless the agency can achieve vcl-

untary compliance action. Moreover, this

grim result will occur in the face of a

clear expression of congressional intent

to create a right and a remedy for the pro-

tection of qualified handicapped persons,

an intent which has been expressed both in

1974 and 1978. That this Court would allow

the creation of a federal right without the

implication of an effective federal remedy

in a civil rights context is sina to

principles of law going back to the decision

of this Court in Bell v. Hood, 327 U.S. 678

(1946), and should not be allowed.

Moreover, this is not a question of

separation of powers, or the avoidance of

judicial legislation. This is a situation

where the Congress has created an express

right in favor of the special class of

-18-

handicapped persons, but has created an

administrative scheme without any express

remedy for those persons, yet has implied a

remedy according to the tests previously

applied by this Court. To reject the im-

plication of a remedy in the present case

is to reject the implication doctrine

completely, and to hold that unless Congress

expressly creates such a remedy, or ex-

pressly states an intent to create one, a

cause of action will not be implied.

Stated another way, the effect of this case

will be that unless each statute expressly

creates a right to sue in federal court

for its enforcement, it cannot be enforced

by a private individual.

Many of the handicapped in this country

are veterans of the Vietnam conflict, who

as a result of this law had their first

glimpse of the possibility of equal oppor-

tunity in employment, without regard to

-19-

their handicaps. They are seeking equal

opportunity, not sympathy. But American

industry is certainly eager to avoid the

responsibility of opening its job oppor-

tunities to the qualified handicapped, be-

cause of the increased cost of accommodat-

ing itself to the handicapped. However,

it is certainly preferable to require the

employer to hire the qualified handicapped,

rather than to have them on welfare.

That Congress intended to open such

opportunities, particularly with regard

to federal contractors, who feed off the

federal largess, is evident. Whether it

has achieved this result is up to this

Court.

=20<

CONCLUSION

For the foregoing reasons, this

Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

James C. Barber

5217 Ross Avenue

Suite 318

Dallas, Texas 75206

Attorney for Petitioner

Dated: May 13, 1980

=-2i-

PROOF OF SERVICE

I, James C. Barber, Attorney for Peti-

tioner herein, and a member of the Bar of

the Supreme Court of the United States,

hereby certify that on the 13th day of May,

1980, I served three copies of the foregoing

Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit upon

the following Counsel for Respondent:

Ms. Susan Cahoon

3100 Equitable Building

100 Peachtree Street

Atlanta, Georgia 30303

and to the Counsel for Howard Moon:

Mr. Beverly Bates

Suite 2301, 101 Marietta Tower

Atlanta, Georgia 30303

and to the following Counsel for Amicus Curiae:

Mr. Kent Hull, Director of

Legal Services, The National

Center for the Law & the

Handicapped, Inc.

211 West Washington Street

Suite 1900

South Bend, Indiana 46601

by mailing same to such Counsel at their

respective addresses and depositing the

-22-

same in a United States mail box in an en-

velope properly addressed to such address

with first class postage prepaid.

I further certify that all parties

have been served.

ace ET ose

James C. Barber

required to be

Attorney for Petitioner

CORRECTED

Mildred Lee ROGERS,

Plaintiff-Appellant,

FRITO-LAY, INCORPORATED,

Defendant-Appellee.

Howard L. MOON, Plaintiff-Appellant,

v. .

ROADWAY EXPRESS, INC.,

Defendant-Appellee.

Nos. 77-2443, 77-3263.

United States Court of Appeals,

Fifth Circuit.

Feb. 15, 1980.

Handicapped former employee of

federal contractor brought suit under the

Rehabilitation Act, and the employer

moved to dismiss. The United States

District Court for the Northern District

of Texas, William M. Taylor, Jr., J., 483

F.Supp. 200, dismissed for failure to

state a claim, and the former employee’s

appeal was consolidated with an appeal

from a judgment of dismissal rendered

in a similar suit before the United States

District Court for the Northern District

of Georgia, Harold L. Murphy, J. The

Court of Appeals, Alvin B. Rubin, Circuit

Judge, held that the section of the Reha-

bilitation Act which requires every fed-

eral contract in excess of $2,500 to con-

tain a provision obligating the contract-

ing parties to take affirmative action to

employ and advance: in employment

qualified handicapped individuals did not

create a private right of action to reme-

dy alleged discrimination against the

handicapped by federal contractors.

Judgments affirmed.

ROGERS v. FRITO-LAY, INC.

Goldberg, Circuit Judge, dissented

and filed opinion.

1. Federal Courts ¢797

On appeal from judgments of dis-

missal for failure to state a claim, the

Court of Appeals would assume that, as

alleged in the complaints, each of the

plaintiffs was a qualified handicapped

person and each was discharged beca™se

of handicaps.

2. Federal Courts 5

Federal courts are not common-law

courts of general jurisdiction but are

limited by the express language of the

Constitution and the functional role it

- allota to the judiciary.

3. Action e=3

A federal court can recognize a

cause of action only if it has been creat-

ed by statute.

4. Action 3

In suits presenting question whether

the Rehabilitation Act impliedly autho-

rizes handicapped individuals who believe

that federal contractors have discrimi-

nated against them to file civil actions to

‘obtain damages for such discrimination,

obligation of federal court was to deter-

mine, to the best of its ability, whether

Congress intended to create such private

right of action; even if the court was

satisfied that some factors supported im-

plying such a right, it could not do so if

it was unconvinced that Congress intend-

ed such a remedy. Rehabilitation Act of

1973, §§ 508, 504 as amended 29 U.S.C.A.

§§ 798, 794.

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

3234

5. Action 3

Framework, set down by the United

States Supreme Court in Cort v. Ash, for

determining whether a federal statute

creates a private judicial remedy, is pri-

marily a guide for the process of statuto-

ry construction.

6. Action @3

The court is not entitled to infer the

existence of a private judicial remedy in

the face of Congressional silence if the

language and structure of the statute do

not support the inference, even though in

other circumstances silence would not be

dispositive.

7. Labor Relations #7

The section of the Rehabilitation

Act which requires every contract in ex-

cess of $2,500 with any federal depart-

ment to contain a provision obligating

the contracting parties to take affirma-

tive action to employ and advance in em-

ployment qualified handicapped individu-

als was intended at least to direct feder-

al agencies to use their purchasing pow-

er so as to improve employment opportu-

nities for qualified handicapped persons.

Rehabilitation Act of 1978, § 503 as

amended 29 U.S.C.A. § 793.

8. Action #3

Fact that Congress had handicapped

persons in mind when it enacted the sec-

tion of the Rehabilitation Act which re-

quires every contract in excess of $2,500

with any federal department to contain

a provision obligating the contracting

parties to take affirmative action to em-

ploy qualified handicapped individuals

and that Congress mentioned handi-

capped persons in the statute did not

warrant concluding that Congress in-

tended to create a federal right in favor

of handicapped persons. Rehabilitation

ROGERS v. FRITO-LAY, INC.

Act of 1973, § 503 as amended 29 US.

C.A. § 793.

9. Action #3

The Rehabilitation Act section which

provides that every contract in excess of

$2,500 with any federa! department must

contain provision requiring the contract-

ing parties to take affirmative action to

employ and advance in employment

qualified handicapped individuals merely

required those who give out federal con-

tracts to obligate contractors to take af-

firmative steps to employ and advance

handicapped persons and did not imply

on its face an intention to endow the

handicapped with a direct private right

of action to redress handicap-based dis-

crimination. Rehabilitation Act of 1973,

§ 503, 29 U.S.C.A. § 793.

10. Labor Relations 7

Duty directly created by the Reha-

bilitation Act section which requires ev-

ery contract in excess of $2,500 with any

federal department to contain a provi-

sion obligating the contracting parties to

take affirmative action to employ quali-

fied handicapped individuals was im-

posed on federal departments and agen-

cies, not on contractors. Rehabilitation

Act of 1973, § 503 as amended 29 US.

C.A. § 793.

11. Action #3

When a statute is structured as a

directive to federal agencies and does

not clearly define a right inhering in in-

dividual members of the benefited class,

there must be persuasive evicence in the

legislative history that Congress intend-

ed to confer such a right before the

courts are justified in concluding that

one exists.

ROGERS v. FRITO-LAY, INC.

12. Statutes e184, 216, 217.3

In trying to discern congressional in-

tent by examining the legislative history

of a statute, courts look to the purpose

of the original enactment, discussions of

statutory meaning in committee reports,

the effect of amendments, whether ac-

cepted or rejected, and the remarks in

debate preceding passage.

13. Statutes @=216, 217.2

The retroactive wisdom provided by

the subsequent speech of a member of

Congress stating that yesterday we

meant something that we did not say is

an ephemeral guide to history; what

happened after a statute was enacted

may be history and may come from

members of Congress but it is not part

of the legislative history of th: enact-

ment.

14. Action 3

Fact that the Rehabilitation Act was

amended by a section providing for at-

torney fees in any action to enforce or

charge a violation of a provision did not

mean that the amendment was intended

to authorize private individuals to file

civil actions to redress alleged violations

of the requirement that federal contrac-

tors take affirmative action to employ

and advance qualified handicapped indi-

viduals. Rehabilitation Act of 1978,

§§ 508-505, 505(b) as amended 29 U'S.

C.A. §§ 793-794a, 794a(b).

15. Action 3

Fact that committees of both Hous-

es of Congress assumed, in connection

with amending the Rehabilitation Act,

that a private cause of action to redress

alleged violations of the Act had some-

how been created did not provide a basis

for federal court to conclude that the

Act did in fact create such a private

cause of action. Rehabilitation Act of

1973, § 508 as amended 29 U-S.C.A.

§ 798.

16. Statutes 217.1

Statement made by Senate Commit-

tee some five years after the Rehabilita-

tion Act was enacted was not part of the

statutory history of the Act but was

mere commentary and could not create a

congressional intent that otherwise did

not exist. Rehabilitation Act of 1973,

§ 508 as amended 29 U.S.C.A. § 798.

17. Action 3

Statutes 195 -

19. Action @=3

3236

tions, such silence may indicate that the

question never occurred to Congress at

all, or it may reflect mere oversight in

failing to deal with a matter intended to

be covered, or it may demonstrate delib-

erate obscurity to avoid controversy that

might defeat passage of the legislation,

or it might have resulted from an as-

sumption by Congress that the courts

would recognize a private cause of ac-

tion.

20. Action #3

Those who contend that a federal

statute endows them with an implied

private right of action to redress viola-

tions must establish their proposition.

21. Action #3

The Rehabilitation Act section which

requires that every contract in excess of.

$2,500 with any federal department con-

tain a provision obligating the contract-

ing parties to take affirmative action to

employ and advance in employment

qualified handicapped individuals did not

confer on qualified handicapped persons

1. 29 U.S.C. § 793 provides:

§ 793. Employment under Federal contracts

(a) Amount of contracts or subcontracts;

provision for employment and advancement

of qualified handicapped individuals; regula-

tions. Any contract in excess of $2,500 en-

tered into by any Federal department or

agency for the procurement of personal

property and nonpersonal services (including

construction) for the United States shall con-

tain a provision requiring that, in employing

persons to carry out such contract the party

contracting with the United States shall take

affirmative action to employ and advance in

employment qualified handicapped individu-

als as defined in section 7(7) [29 USCS

§ 706(7)}. The provisions of this section

shall apply to any subcontract in excess of

$2,500 entered into by a prime contractor in

carrying out any contract for the procure-

ment of personal property and nonpersonal

services (including construction) for the

ROGERS v. FRITO-LAY, INC.

who were discharged by federal contrac-

tors because of their handicaps a private

right of action to redress such alleged

discrimination. Rehabilitation Act of

1973, § 503 as amended 29 U-S.C.A.

§ 793.

Appeaf from the United States Dis-

trict Cour®for the Northern DistrictSof 2.

&aL- Georgia.

Before GOLDBERG, FAY and RU-

BIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue before us can be simply stat-

ed: section 503 of the Rehabilitation Act

of 1973 requires every contract in excess

of $2,500 with any federal department to

“contain a provision requiring that, in

employing persons to carry out” the con-

tract, the contracting parties “shall take

affirmative action to employ and ad-

vance in employment qualified handi-

capped individuals.” 29 U.S.C. § 793.!

United States. The President shall imple-

ment the provisions of this section by pro-

mulgating regulations within ninety days af-

ter the date of enactment of this section [en-

acted Sept. 26, 1973).

(ob) Administrative enforcement; complaints;

investigations; departmental action. if any

handicapped individual believes any contrac-

tor has failed or refuses to comply with the

provisions of his contract with the United

States, relating to employment of handi-

capped individuals, such individual may file

a complaint with the Department of Labor.

The Department shall promptly investigate

such complaint and shall take such action

thereon as the facts and circumstances war-

rant, consistent with the terms of such con-

tract and the laws and regulations applicable

thereto.

This provision is part of the same act as sec-

tion 504, 29 U.S.C. § 794, but must be distin-

ROGERS v. FRITO-LAY, INC.

It also provides that any handicapped in-

dividual who believes any contractor has

failed to comply with this agreement

may file a complaint with the Depart-

ment of Labor. Does this statute also

impliedly authorize such an individual to

file a civil action in a United States Dis-

trict Court seeking damages for the con-

tractor’s failure? *

[1] Because each of these cases comes

to us on appeal from a judgment of dis-

missal for failure to state a claim, we

assume that, as alleged in the com-

plaints, each of the plaintiffs is a quali-

fied handicapped person and each was

discharged because of handicaps. This

merely means our inquiry is warranted;

it is not decisive, for the heart of the

problem is whether Congress intended to

benefit the qualified handicapped by giv-

ing them a particular right: the right to

sue in federal court for relief from the

guished from it.

lows:

§ 794. Nondiscrimination under

grants and programs

No otherwise qualified handicapped individ-

ual in the United States, as defined in sec-

tion 7(7) [29 USCS § 706(7)], 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 finan-

cial assistance or under any program or ac-

tivity conducted by any Executive agency or

Section 504 provides as fol-

Federal

by the United States Postal Service. The —

head of each such agency shall promulgate

such regulations as may be necessary to

carry out the amendments to this section

made by the Rehabilitation, Comprehensive

Services, and | tal Disabilities Act

of 1978 [Act Nov--6,-1978; see Amendment

note}. Copies of any proposed regulation

shail be submitted to appropriate authoriz-

ing committees of the Congress, and such

regulation may take effect no earlier than

the thirtieth day after the date on which

such regulation is so submitted to such com-

mittees.

discriminatory conduct of federal con-

tractors.

The Rehabilitation Act of 1973 was

adopted after presidential vetoes had

stymied two earlier attempts to enhance

federal aid to handicapped persons.

Most of the controversy surrounding the

bill and its predecessors focused on wide

ranging programs, to be federally fund-

ed, designed to aid handicapped persons

in assuming a full role in society, and on

the appropriations that would be re-

quired if the measure were adopted.

Consequently, Congress devoted little of

its discussion to its intentions regarding

section 508. See Sen.Rep.No. 93-318,

98d Cong., Ist Sess., pp. 12-16 (1978),

U.S.Code Cong. & Admin.News, p. 2076.

The statute’s muteness, therefore, is not

given meaning by voices in the legisla-

tive background. The plaintiffs ask us

to find not only significance in the si-

2. Both appellants also attempted to allege

causes of action arising under section 504 of

the Act, 29 U.S.C. § 794, but those claims were

abandoned in the district courts in both in-

stances. The appeal here arises solely under

the section 503 claim.

We should also note that, while appellant

Moon brought his action solely in his own be-

half, appellant Rogers brought her action as a

class action. Because the district courts dis-

missed both actions for the reason that they

found no private right of action, this difference

in status is not significant in our decision.

The Department of Labor’s Office of Federal

Contract Compliance Programs (OFCCP) has

authority for administration of this section and

has promulgated regulations. See 41 C.F.R.

§ 60-74: (1978).

3. Lest this simple statement of the issue ap-

pear to provide an ingenuous answer, we note

that plaintiffs ask us not to infer a private

action to force the inclusion of affirmative ac-

tion clauses in federal contracts, but to infer a

private action to remedy actions of federal

contractors that they ciaim discriminate

against the handicapped.

lence, but also the specific message of

intent to bestow a private cause of ac-

tion.

[2,3] Federal courts are not common

law courts of general jurisdiction. Lim-

ited by the express language of the Con-

stitution, and the functional role it allots

to the judiciary, we can recognize the

cause of action only if it has been creat-

ed by statute. See Cannon v. University

of Chicago, 1979, 441 U.S. 677, 717, 99

S.Ct. 1946, 1968, 60 L.Ed.2d 560, 587

(Rehnquist, J., concurring). Therefore,

our answer to the question in this case

depends, the authorities and the parties

all agree, on whether Congress intended,

when this statute was enacted, to create

such a method of enforcing the statutory

policy. Because Congress did not speak

to us unequivocally, either in the statute

or in some other authoritative fashion,

we n:ust seek an answer in the history

of enactment of the statute and in anal-

ogies to what the courts have derived

from other statutes.

Having done so, in a manner we de-

scribe below, we have concluded that

Congress has not authorized a private

cause of action.

[44] In two cases decided within the

last five years, the Supreme Court, sum-

4. Because we are satisfied that the fourth fac-

tor in Cort is satisfied—this is not a matter

traditionally relegated to state law—we do not

discuss it. The crucial inquiry is whether Con-

gress intended a private judicial remedy as

part of section 503. The most fruitful di-

rection for that inquiry is a focus on the first

three factors in Cort. See Touche Ross & Co.

v. Redington, 1979, 442 U.S. —, 99 S.Ct.

2479, 2489, 61 L.Ed.2d 82. Although we con-

form our analysis to the framework set down

in Cort, we must remember that the frame-

ROGERS v. FRITO-LAY, INC.

marizing its reflections in other prior

cases, has told us how to seek intima-

tions sufficient to read statuto’y silence

as affirmative or negative. Cort v. Ash,

1975, 422 U.S. 66, 95 S.Ct. 2080, 45

L.Ed.2d 26; Cannon v. University of Chi-

cago, 1979, 441 U.S. 677, 99 S.Ct. 1946, 60

L.Ed.2d 560. We are directed to con-

sider four factors; but we are warned,

as we should surely already know, that

mechanical adherence to any multiple-

part test is injurious and negates the

very judgmental wisdom that is sought

from courts. See id. at 717, 99 S.Ct. at

1968, 60 L.Ed.2d at 587 (Rehnquist, J.,

concurring). Our obligation is to deter-

mine, to the best of our abilities, wheth-

er Congress intended to create the pri-

vate right of action plaintiffs seek to

bring in federal court; even were we

satisfied that some of the Cort factors

supported implying such a right, we

could not do so if unconvinced that Con-

gress intended such a remedy. See

Transamerica Mortgage Advisors, Inc. v.

Lewis, 1979, —— USS. , 100 S.Ct.

242, 62 L.Ed.2d 146; Touche Ross & Co.

v. Redington, 1979, 442 U.S. —, 99

S.Ct. 2479, 61 L.Ed.2d 82.4

A. Was the plaintiff one of the class

for whose especial benefit the

statute was enacted?

[7,8] The statute was intended at the

least to direct federal agencies to use

work is primarily a guide for the process of

Statutory construction. See Transamerica

Mortgage Advisors, Inc. v. Lewis, 1979, ——

U.S. ——, 100 S.Ct. 242, 62 L.Ed.2d 146.

Thus, we are not entitled to infer the presence

of a private judicial remedy in the face of Con-

gressional silence if the language and structure

of the statute do not support the inference,

even though in other circumstances silence

would not be dispositive. See id. (discussing

Cannon v. University of Chicago, 1979, 441

U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560).

ROGERS v. FRITO-LAY, INC.

their purchasing power so as to improve

employment opportunities for “qualified

handicapped persons.” But it would be

facile simply to conclude that, because

Congress had handicapped persons in

mind when it enacted section 503 and

mentioned them in the statute, the first

Cort factor is satisfied. What Cort de-

mands is not that we determine whether

Congress intended to aid a particular

class of persons, but that we ascertain

whether Congress intended to “create a

federal right in favor of the plaintiff.”

Cort v. Ash, 1975, 422 U.S. 66, 78, 95

S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36. To

this end, “the right— or duty-creating

language of the statute has generally

been the most accurate indicator of the

propriety of implication of a cause of

action.” Cannon v. University of Chica-

go, 1979, 441 U.S. 677, 690 n. 13, 99 S.Ct.

1946, 1954 n. 13, 60 L.Ed.2d 560, 571 n.

13.

The words of the statute, which are

remarkably plain and jargon-free, do not

indicate that it is aimed at overcoming

those barriers to the employment of a

qualified handicapped person that can be

surmounted only by costly action or ma-

jor programs. What is required of the

5. We are aware that the affirmative action

clause inserted in federal contracts pursuant to

29 U.S.C. § 793 bans discrimination on the

basis of handicaps. See 41 C.F.R. § 60-741.4

(1978). There is also language in the legisla-

tive history indicating that the section has an

antidiscrimination component. See Rep.No.

93-318, 93d Cong., 2d Sess. (1973). See gen-

erally, Note, Private Rights of Action for

Persons under Section 503 of the

Rehabilitation Act, 13 Val.U.L.Rev. 453 (1979).

However, its principal thrust is to ensure that

federal contractors will take affirmative steps

to employ the handicapped, see S.Rep.No. 93-

318, 93d Cong., 2d Sess. (1973); S.Conf.

Rep.No. 93-1270, 93d Cong., 2d Sess. (1974),

and the legislative history does not provide

any basis for defining the nature of the antidis-

employer could be as simple as providing

a ramp for wheelchairs over a stairway

or as complex as installing altered ma-

chinery, or it may, of course, be that

apparently simple but much more diffi-

cult problem of eliminating prejudice, a

disease so deep rooted that it caused

Clemenceau to say, “a citizen is some-

times called upon to make a greater sac-

rifice for his country than the sacrifices

of his life, namely, to sacrifice his preju-

dices.”

[9,10] The statutory language does

not imply on its face any intention to

endow the handicapped with a direct suit

after suffering handicap-based discrimi-

nation. It merely requires those who

give out federal contracts to obligate

contractors to take affirmative steps to

employ and advance handicapped per-

sons. The duty it directly creates is im-

posed upon federal departments and

agencies, not upon contractors. The

statute does not confer a clearly defined

right on the benefitted class. There is

no intimation that every qualified handi-

capped person has a right to affirmative

action in his particular case; what is ap-

parent is that those who control federal

contracts have a duty to make and en-

crimination component we are asked to read

m @ ce oe ee Se

statute.

he plaintiffs do not assert a claim based on

putative status as third party beneficiaries. of a

federal contract, and we do not undertake to

beneficiary relationship,

statement of Contracts, §§ 133-147 (1932), and

what would be the jurisdictiona! basis for a

suit by such a third-party beneficiary in a fed-

eral court. If the thesis is plausible, we would

also need to consider whether implication of a

third-party beneficiary claim turns on the

same considerations as implication of a private

cause of action.

force contracts containing the requisite

clause. The handicapped may have sim-

ply the right to petition those who ad-

minister federal contracts to perform

their duty.

The language of the statute is thus

unlike those statutes that unequivocally

focus on the benefitted class in their

right—or duty-creating language. See,

e. g., id., 441 U.S. at 681 n. 3, 99 S.Ct. at

1950 n. 3, 60 L.Ed.2d at 567 n. 3 (“No

person . . ._ shall be excluded

..” 20 U.S.C. § 1681); Allen v.

State Board of Elections, 393 U.S. 544,

554-55, 89 S.Ct. 817, 825-26, 22 L.Ed.2d

> Bi: . Ne person shall be denied

‘ -”). It is, however, not unlike

language that the Cannon court indi-

cated would be sterile ground for imply-

ing a cause of action: “[tJhere would be

far less reason to infer a private remedy

in favor of individual persons if Congress

had written [the statute] sim-

ply as a ban on discriminatory conduct

by recipients of federal funds or as a

prohibition against the disbursement of

public funds to institutions

engaged in discriminatory practices.”

Cannon v. University of Chicago, 1979,

441 U.S. 677, 690-93 and n. 14, 99 S.Ct.

1946, 1954—55 and n. 14, 60 L.Ed.2d 560,

571-573 and n. 14 (footnote omitted).

Here, that is precisely what Congress

did.

{11} The duty-creating phrases are

not conclusive, but they make inference

of a private cause of acticn more diffi-

cult. When a statute is structured as a

directive to federal agencies and does

not clearly define a right inhering in in-

dividual members of a benefitted class,

there must be persuasive evidence in the

legislative history that Congress intend-

ed to confer such a right before the

courts are justified in concluding that

ROGERS v. FRITO-LAY, INC.

one exists. See Transamerica Mortgage

Advisors, Inc. v. Lewis, 1979, —— USS.

-——, 100 S.Ct. 242, 62 L.Ed.2d 146.

B. Is there any indication of legisla-

tive intent, explicit or implicit, ei-

ther to create such a remedy or to

deny one?

[12] In trying to learn Congressional

intent by examining the legislative histo-

ry of a statute, we look to the purpose

the original enactment served, the dis-

cussion of statutory meaning in commit-

tee reports, the effect of amendments—

whether accepted or rejected—and the

remarks in debate preceding passage.

The scant discussion of section 503

that occurred during the process of en-

actment of the Rehabilitation Act of

1973 does not indicate that Congress con-

templated a private right of action for

handicapped persons. The only explicit

statements of Congressional intent are

found in connection with later legisla-

tion, corollary to section 503. We are

urged to find meaning in section 503 as

a result of later statutes and of remarks

by individual Congressmen made at a la-

ter time.

{13} The retroactive wisdom provided

by the subsequent speech of a member

of Congress stating that yesterday we

meant something that we did not say is

an ephemeral guide to history. Though

even God cannot alter the past, histori-

ans can, compare Samuel Butler, Cre-

ation Revisited, c. 14, and other mortals

are not free from the temptation to en-

dow yesterday with the wisdom found

today. What happened after a statute

was enacted may be history and it may

come from members of the Congress, but

it is not part of the legislative history of

the original enactment.

ROGERS v. FRITO-LAY, INC.

Later statutes may provide guidance.

The Supreme Court has on occasion re-

ferred to the language of a later statuto-

ry amendment, whether independent or

amendatory, in interpreting an earlier

one. When thus utilized, the role of the

later statute is not primarily historical:

it repeals, modifies, adds to or subtracts

from the earlier one by its own force.

Its enactment stems from Congressional

legislative power to repeal or alter what

it has done. When such a statute has

been adopted, the question becomes one

of interpreting the two enactments to-

gether.

The two amendments to Title V that

have been adopted leave the question of

individual right to sue almost as murky

as did the original text. In 1974 Con-

gress amended the newly enacted Reha-

bilitation Act. One of the purposes and

results of the amendment was to clarify

the definition of “handicapped person”

under sections 503 and 504 of the Act.

Although the adopted amendment did

not affect the substance of either sec-

tion, the legislators utilized the legisla-

tive process to express their views on the

intended scope of those sections as origi-

nally adopted.

6. See Cannon v. University of Chicago, 1979,

441 U.S. 677, 686 n. 7, 99 S.Ct. 1946, 1952 n. 7,

60 L.Ed.2d 560, 569 n. 7. The Cannon court

noted, despite its partial reliance on later legis-

lative history, that “we cannot accord these

remarks the weight of contemporary legisla- -

tive history ..”" Id. In contrast to the

situation here, there was in Cannon substan-

tial contemporary legislative history support-

ing the court’s view of the statute, id. at 694,

99 S.Ct. at 1956-57, 60 L.Ed.2d at 574.

7. This apparently prompted Senator Robert

Stafford, who was not one of the conferees but

was a leading advocate of the Rehabilitation

Act throughout its consideration, to state that

it was intended that enforcement under both

sections 503 and 504 would be similar to en-

forcement under section 601 of the Civil

3241

The most extensive discussions of the

two sections appear in the Senate Con-

ference Committee Report on _ the

amendments. Sen.Conf.Rep.No. 93-1270,

93d Cong., 2d Sess. 25-28 (1974). Even

then, little attention was directed to en-

forcement of section 503, but section 504

enforcement was discussed in detail

The Report equated section 504 to sec.

tion 601 of the Civil Rights Act of 1964

42 U.S.C. § 2000d and section 901 of the

Education Amendments of 1972, &

U.S.C. § 1681. Like those sections, th«

conferees stated, section 504 is to be en

forced by administrative and judicia

means, including a private judicial reme

dy for those harmed by violations of th

section.

The Committee failed to make similar

ly explicit any understanding that sec

tion 503 would entail a private judicia

remedy. It did, however, note the inten

that “sections 503 and 504 be adminis

tered in such a manner than a consist

ent, uniform, and effective federal ar

proach to discrimination against hand

capped persons would result.” Sen.Con:

Rep.No. 93-1270, supra, at 27.7 Thi

Rights Act and section 901 of the Educatic

Amendments. 120 Cong.Rec. 30551 (1974).

It is noteworthy, however, that immediate

following its suggestidn that enforcement .

sections 503 and 504 should be “uniform,” tl

conference committee indicated that enforc

ment of the two sections would be handled |

separate agencies. Sen.Conf.Rep.No. 93-127

supra at 27-28. It assigned to the Secreta

ment. Section 503 enforcement authority w:

however, left to the Department of Labor,

response to Executive Order No. 11758,

Fed.Reg. 2075 (Jan. 15, 1974), as amended

might prompt the conclusion that a pri-

vate judicial remedy was intended under

both sections. But the occasional men-

tions of section 503 contain no direct

statement of an intention to create a

private cause of action. Even as straws

in the wind, these statements indicate

cross currents rather than a stout breeze

from one direction.

[14] The appellants find their strong-

est argument in an implication they seek

to draw from enactment in 1978 of an

amendment to the Rehabilitation Act of

1973 that added a new section providing

for attorney’s fees in any action “to en-

force or charge a violation of a provision

of this subchapter.”*® This undoubtedly

authorizes an attorney’s fee in actions

brought to enforce section 503; but it

does not necessarily follow that the

amendment is intended to authorize pri-

vate individuals to file civil actions under

that section.

We are aware that the Senate report

states: “the availability of attorney’s

Executive Order No. 11784, 39 Fed.Reg. 19443

(May 30, 1974). That order allows the Secre-

tary of Labor to proscribe regulations for en-

forcement of section 503, including regulations

providing for the waiver of section 503's re-

quirements. Congress's adoption of the sepa-

ration of enforcement of the two sections, and

its apparent willingness to have enforcement

of section 504 only in the hands of the depart-

ment with expertise in dealing with private

lawsuits, suggests that its desire for “uniform”

enforcement may not have encompassed en-

forcement techniques. It is also difficult to

believe that Congress intended a private cause

of action under section 503 since it failed to

comment on an Executive Order which allows

contracting departments to exempt contracts

from the section's provisions.

8. This amendment added a new section, sec-

tion 505, 29 U.S.C.A. § 794a (West Supp.1979),

to the Act, which in relevant part provides:

In any action or proceeding to enforce or

charge a violation of a provision of this sub-

chapter, the court, in its discretion, may al-

ROGERS v. FRITO-LAY, INC.

fees should assist in vindicating private

rights of action in the case of section 502

and 503 cases, as well as those arising

under section 501 and 504,” S.Rep.No.

95—890, 95th Cong.2d Sess. 19 (1978), and

that the House report contains similar

language.*

[15] It may, therefore, fairly be said

that the 1978 committees of both Houses

assumed that a private cause of action

had somehow been created in the past.

The existence of such a postulate is nei-

ther logical nor legislative basis to con-

clude that the 1973 statute did in fact

create the action; and, if the 1973 stat-

ute did not authorize the cause of action,

the 1978 statute evidences no intention

to create one. An assumption is not a

law.

{16} A statement indicating that sec-

tion 503 creates a private cause of action

was made by a Senate Committee in

1979.% “The Committee” in 1978 or 1979

low the prevailing party, other than the

United States, a reasonable attorney's fee as

part of the costs.

Section 505(b), 29 U.S.C.A. § 794a(b).

®. For instance, the House Report states that

this part of the amendments “[pJermits cours

to award attorney's fees to successful parties

in judicial actions to enforce the provisions of

Title V." H.R.Rep.No. 95-1149, 95th Cong.2d

Sess. (1978), reprinted in (1978) U.S.Code

Cong. & Admin.News, pp. 7312, 7313. See

also id. at 7332.

10. In a report issued September 13, 1979, the

Senate Committee on Labor and Human Re-

sources, considering legislation to amend Title

Vil of the Civil Rights Act of 1964 to prohibii

discrimination against individuals because they

are handicapped, stated, “the Committee's in-

tent that any handicapped individual aggrieved

by a violation of Title V"” has the right to

proceed in federal court, “and to receive back-

pay and attorney's fees if successful.” Sen.

Rep.No. 96-316, 96th Cong., Ist Sess. 12-13

(1979).

ROGERS v. FRITO-LAY, INC.

is not the committee that recommended

the legislation enacted in 1974. Had this

statement been made in the report of

the committee that recommended the

legislation, it would indeed be part of

the statutory history. When uttered

five years later it is mere commentary.

Moreover, a committee is not the Con-

gress. It cannot create a Congressional

intent that did not exist, or amend a

statute by a report. Cf. In re Beef In-

dustry Antitrust Litigation, 5 Cir. 1979,

589 F.2d 786 (opinion of two Congress-

men on applicability of House of Repre-

sentative’s rule is not binding on court;

rather, court must evaluate rule with at-

tention to practice of entire Congress).

The legislative history of section 503 is

void of explanatory statements contem-

poraneous with its passage. What hap-

pened subsequently is either ambiguous,

or an assumption not shown to have

been warranted; it is also the product of

members of a Congress so distant in

time from the enacting Congress that we

cannot accept their remarks as an accu-

rate expression of the earlier Congress’s

intent. We must, therefore, rely on

whatever may be implicit in the statute.

The strongest argument for implica-

tion of a cause of action is that such a .

right is created by other provisions of

the same law. That analogy is false; it

attempts to achieve like conclusions from

different premises.

The Rehabilitation Act contains both

the provision (section 503) requiring fed-

eral contracts to obligate contractors to

take affirmative action, 29 U.S.C. § 793,

and, in the section immediately follow-

ing, a provision forbidding discrimination

in federal grants. The language of the

two sections is different:

29 U.S.C. § 793 (§ 503)

Any contract in excess of

$2500 entered into by any

Federal department .. .

for the procurement of per-

sonal property and nonper-

contain a provision requiring

that, in employing persons

to carry out such contract

the party contracting with

29 U.S.C. § 794 (§ 504)

No otherwise qualified indi-

vidual in the United States

. . . hall, solely by

reason of his handicap, be

excluded from participation

in, be denied the benefits

of, or be subjected to dis-

crimination under any pro-

gram or activity reviewing

Federal financial assistance

the United States shalitake ....

affirmative action to employ

and advance in employment

qualified handicapped indi-

viduals. . . .

A number of courts have held that

section 504 creates a private cause of

action in favor of qualified handicapped

persons discriminated against in pro-

grams that receive federal grants. See,

e. g., United Handicapped Federation v.

Andre, 8 Cir. 1977, 558 F.2d 413; Kamp-

meier v. Nyquist, 2 Cir. 1977, 553 F.2d

296, 299; Lloyd v. Regional Transporta-

tion Authority, 7 Cir. 1977, 548 F.2d

1277; Davis v. Bucher, E.D.Pa.1978, 451

F.Supp. 791; Doe v. New York Universi-

ty, S.D.N.Y.1978, 442 F.Supp. 522 (dic-

tum); Barnes v. Converse College, D.S.C.

1977, 436 F.Supp. 685; Gurmankin v.

Costanzo, E.D.Pa.1976, 411 F.Supp. 982,

aff'd, 3 Cir. 1977, 556 F.2d 184. More-

over, in Cannon v. University of Chicago,

1979, 441 U.S. 677; 99 S.Ct. 1946, 60

L.Ed.2d 560, the Supreme Court found

an implied cause of action in Title IX of

the Education Amendments of 1972 for

violation of § 901(a) which provides, “No

person in the United States shall, on the

basis of sex, be excluded from participa-

tion in, be denied the benefits of, or be

subjected to discrimination under any

education program or activity receiving

Federal financial assistance.”

The parallel in construction between

Title IX and section 504 is evident. The

differences between this common design

and the mandate of section 508 are

3244 ROGERS v. FRITO-LAY, INC.

equally clear: section 503 does not out-

law discrimination; it requires affirma-

tive action covenants to be inserted in

government contracts.

Section 503 also incorporates a specific

method of enforeing the contractual pro-

vision; contractors who do not abide by

their undertaking may be subjected to

sanctions by the Department of Labor.

The statute expressly discusses adminis-

trative enforcement and the regulations

emphasize conciliation and persuasion as

methods of dispute resolution. See 41

C.F.R. § 60—-741.26(g\(2). Section 504, on

the other hand, does not expressly pro-

vide for administrative enforcement.

Save for their common endeavor to aid

the handicapped, the two sections have

little in common. The words of section

503 convey no message that the same

remedies should be available as those af-

forded for violation of section 504.

The type of assistance afforded by sec-

tion 503 to aid persons whom the govern-

ment wishes to benefit by its contracting

power has been afforded in the past.

Both Executive Order 11246, promulgat-

ed in 1965, and its predecessor 10925,

promulgated in 1961, required govern-

ment contractors to agree to include

nondiscrimination and affirmative action

previsions in their contracts with the

Zovernment. We have declined to infer

pAgprivate cause of action under such an

ecutive order containing language sim-

ikar to that of section 503. See Farkas v.

‘Texas Instruments, Inc., 5 Cir. 1967, 375

F.2d 629, cert. denied, 389 U.S. 977, 88

S.Ct. 480, 19 L.Ed.2d 471 (Exec. Order

10925); see also Farmer v. Philadelphia

Electric Co., 3 Cir. 1964, 329 F.2d 3

(Exec. Order 10925 and predecessors);

Traylor v. Safeway Stores, Inc., N.D.Cal.

1975, 402 F.Supp. 871 (Exec. Order 11246

as amended by 11375). The rationale of

these decisions is that litigation would

disrupt the administrative scheme estab-

lished by the order and the supplement-

ing regulations.

These decisions should have given Con-

gress fair grounds to believe that, when

it enacted section 503, federal courts

would not infer a private cause of action

under it and that, if it intended a differ-

ent result, it should make its mandate

explicit. Cf. Cannon v. University of

Chicago, 1979, 441 U.S. 696, 698, 99 S.Ct.

1946, 1957-58, 60 L.Ed.2d 575, 576 (uses

the interpretation of Title VI at the time

Title IX was enacted to divine Congres-

sional intent concerning Title IX). In-

deed, the Executive Order is referred to

in the scant legislative history of section

503.

Moreover, our court, like others, has

generally not inferred private causes of

action under statutes regulating employ-

ee-employer relationships. See, e. g.,

Jeter v. St. Regis Paper Co., 5 Cir. 1975,

507 F.2d 973 (no private right of action

under Occupational Health and Safety

Act, 29 U.S.C. §§ 651-678); Martinez v.

Behring’s Bearings Service, Inc., 5 Cir.

1974, 501 F.2d 104 (no private right of

action for wrongful death under Fair

Labor Standards Act, 29 USC.

§ 215(aX3)); Flores v. George Braun

Packing Co., 5 Cir. 1973, 482 F.2d 279 (no

implied right against employer for depri-

vation of job based on illegal employ-

ment of foreign nationals under Immi-

gration and Nationality Act, 8 U.S.C.

§§ 1101(aX15XA Mii), 1182(9\14), 1324);

Breitwieser v. KMS Industries, Inc., 5

Cir. 1972, 467 F.2d 1391, cert. denied,

1973, 410 U.S. 969, 93 S.Ct. 1445, 35

L.Ed.2d 705, (no implied right of action

to bring a wrongful death action under

child labor provisions of Fair Labor

Standards Act, 29 U.S.C. § 212); United

States v. Lovknit Manufacturing Co., 5

ROGERS v. FRITO-LAY, INC. 3245

Cir. 1951, 189 F.2d 454, cert. denied, 342

U.S. 896, 72 S.Ct. 229, 96 L.Ed. 671 (no

implied right of action under Walsh-Hea-

ley Act, 41 U.S.C. §§ 35-45; dictum).

C. Is it consistent with the underly-

ing purposes of the legislative

scheme to imply such a remedy for

the plaintiff?

[17] As we have already indicated in

differentiating section 503 from both

section 504 and Title IX, Congress pro-

vided a complete administrative scheme

to remedy Section 503 violations. The

implementing regulations, set forth at

length in the footnote, provide explicit

details for the operation of that plan.”

The administrative emphasis is on “con-

ciliation and persuasion” and on “infor-

mal means” of resolution. The regula-

tions make no provision for a private

cause of action, suggesting that a pri-

vate judicial remedy may be difficult to

harmonize with the administrative en-

forcement framework. In addition, Title

IX contained a provision for the award

of attorney’s fees, passed contemporane-

ll. 41 C.F.R. § 60-7414 provides:

§ 60-741.4 Affirmative action clause.

Each agency and each contractor and sub-

contractor shall include the following affirm-

ative action clause in each of its covered

government contracts or subcontracts (and |

modifications, renewals, or extensions there-

of if not included in the original contract).

AFFIRMATIVE ACTION FOR HANDICAPPED

WORKERS

(a) The contractor will not discriminate

against any employee or applicant for em-

ployment because of physical or mental

handicap in regard to any position for which

the employee or applicant for employment is

qualified. The contractor agrees to take af-

firmative action to employ, advance in em-

ployment and otherwise treat qualified hand-

icapped individuals without discrimination

based upon their physical or mental handi-

cap in all employment practices such as the

following: employment, upgrading, demotion

ously with the act, which indicated that

the very Congress that passed the law

believed a private cause of action exist-

ed. No corresponding reason exists to

buttress the thesis that section 503 was

intended to authorize private litigation.

[18] The provision of an express ad-

ministrative remedy for qualified handi-

capped persons creates at least some ba-

sis to conclude that a private right of

action would be inconsistent with the

purposes of the legislative scheme.” As

the Supreme Court has noted, “This

principle of statutory construction re-

flects an ancient maxim—expressio unius

est exclusio alterius.” National Railroad

Passenger Corp. v. National Association

of Railroad Passengers, 1974, 414 U.S.

453, 458, 94 S.Ct. 690, 693, 38 L.Ed2d

646, 652. “[{W]hen legislation expressly

provides a particular remedy or reme-

dies, courts should not expand the cover-

age of the statute to subsume other rem-

edies,” the Court reasoned. Id. For,

“when a statute limits a thing to be

or transfer, recruitment, advertising, layoff

or termination, rates of pay or other forms

of compensation, and selection for training,

including apprenticeship.

(b) The contractor agrees to comply with

the rules, regulations, and relevant orders of

the Secretary of Labor issued pursuant to

the Act.

compliance with the requirements of this

clause, actions for noncompliance may be

taken in accordance with the rules, regula-

tions and relevant orders of the Secretary of

Labor issued pursuant to the Act.

12. A strange argument is made by the Office

of Federal Contract Compliance Programs in

other cases, and relied upon to some degree by

the dissent, that a private cause of action

should be implied because the executive

branch lacks personnel to perform its duty and

that, therefore, the Third Branch should supply

the need.

3246

done in a particular mode, it includes the

negative of any other mode.’ Botany

Worsted Mills v. United States, 278 U.S.

282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379

(1929).” Id. See also Transamerica Mort-

gage Advisors, Inc. v. Lewis, 1979, ——

USS. % , 100 S.Ct. 242, 247, 62

L.Ed.2d 146, 155 (“where a statute ex-

pressly provides a particular remedy or

remedies, a court must be chary of read-

ing others into it.”).

To determine the message to be found

in the void of express Congressional

statement, we resort neither to our own

notions of sound policy nor to our con-

cept of what best suits the public weal.

{19} Where there is silence, as Can-

non commands, we seek for affirmative

evidence of Congressional intent. Si-

lence may indicate only that the question

never occurred to Congress at all, or it

may reflect mere oversight in failing to

deal with a matter intended to be cover-

ed, or it may demonstrate deliberate ob-

scurity to avoid controversy that might

defeat the passage of legislation, or it

may, indeed, be a result merely of an

assumption by Congress that the courts

would recognize a private cause of ac-

tion. The issue is not whether, on the

merits, balancing on-the-one-hand with

on-the-other, advocates of judicial reme-

dies have a better case than opponents,

but whether, considering the purpose

and function of the statute and its legis-

lative history, we can find a legislative

intent to recognize a judicial remedy.

1. The district courts which have considered

this question are fairly evenly divided. Those

finding no right of action, including both of the

courts below, are: Anderson v. Erie Lacka-

wanna Railway Co., 468 F.Supp. 934 (E.D.Ohio

1979); Wood v. Diamond State Telephone Co.,

440 F.Supp. 1003 (D.Del.1977); Moon v. Road-

way Express, Inc., 439 F.Supp. 1308 (N.D.Ga.

ROGERS v. FRITO-LAY, INC.

{20} The task does not lend itself to

certitude or dogmatism. Yet principle

can shed helpful light even if not the

clarity necessary for absolute confidence.

The standard is that those who contend

a statute has endowed them with a cause

of action must establish their proposi-

tion. The appellants have not shown

that section 503 presents the “atypical

situation in which al] of the circumstanc-

es that the Court has previously identi-

fied as supportive of an implied remedy

are present,” Cannon v. University of

Chicago, 1979, 441 U.S. 677, 717, 99 S.Ct.

1946, 1968, 60 L.Ed.2d 560, 587, or even

that sufficient of them attended its en-

actment to warrant the implication.

[21] For these reasons, we decline to

do judicially what Congress has not done

legislatively, and we AFFIRM both

judgments.

GOLDBERG, Circuit Judge, dissent-

ing.

I respectfully dissent.

The issue presented in this case is one

of first impression in the appellate

courts. We have been asked to decide

whether there exists a private right of

action in the federal courts under § 503

of the Rehabilitation Act of 1973 (the

Act), as amended, 29 U.S.C.A. § 793

(West 1975 and Supp.1979), in favor of

qualified handicapped individuals who al-

lege that they were victims of handicap-

based discrimination in their employment

with federal contractors.' This question

is, I think, one of great significance both

1977), Rogers +. Frito-Lay, 433 F Supp. 200

(N.D.Tex.1977). Favoring implication are Hart

v. County of Alameda, —— F.Supp. ——- (N.D

Cal., 1979); Duran v. City of Tampa, 430

F.Supp. 75 (M.D.Fla.1977); Drennon v. Phiia-

delphia General Hospital, 428 F.Supp. 809

(E.D.Pa.1977).

ROGERS v. FRITO-LAY, INC.

for the millions of handicapped individu-

als who have waited and labored to see

their right to equal treatment estab-

lished in the law along with the rights of

other groups who have been victims of

invidious discrimination and also for the

jurisprudence of implied private rights

of action. I will therefore set forth in

some detail my reasons for reaching a

conclusion contrary to that reached by

my brethren, but it is important to rec-

ognize from the outset certain factors

which set this case apart from the run-

of-the-mill situation in which courts are

required to decide whether a private

right of action inheres in a statute not

explicitly creating one.

First, the Supreme Court has observed

that “the legislative history of a statute

that does not expressly create or deny a

private right of action will typically be

equally silent or ambiguous on the ques-

tion.” Cannon v. University of Chicago,

441 U.S. 677, 99 S.Ct. 1946, 1956, 60

L.Ed.2d 560 (1979). Untypically, how-

ever, the history of the legislative con-

sideration of § 503 contains direct evi-

dence of a congressional intent that a

private cause of action is to be found

implicit in the statute. While these

statements were not contemporaneous

with the passage of the Act, I will show

that settled judicial authority requires

that we give great weight to such indica-

tions of congressional intent and that

this case is a particularly appropriate one

for doing so.

Second, both the Department of Labor

and its Office of Federal Contract Com-

2. The Department of Labor and the OFCCP

have taken these positions in litigation in che

District Court for the Southern District of New

York, Phyllis Chapman v. Consolidated Edison

Company of New York, Inc., (No. 79-Civ.-

0730 (MEL)). The National Center for Law

and the Handicapped, Inc., Amicus Curiae in

3247

pliance Programs (OFCCP)—the agency

charged with administering § 503—have

taken the position that a private cause

of action exists under § 508; that such a

cause of action is not inconsistent with

the congressional purposes underlying

the Act and, rather than hindering the

Act’s administrative enforcement

scheme, will assist it; and that exhaus-

tion of administrative remedies should

not be required in every case? There is

thus little room for judicial second-guess-

ing of the impact of a private cause of

action on the congressionally-established

administrative enforcement scheme.

When these and all the other relevant

factors are considered within the analyti-

cal framework established by Cort v.

Ash, 422 U.S. 66, 95 S.Ct. 2080, 2088, 45

L.Ed.2d 26 (1975), and refined in more

recent decisions, see, e. g., Transamerica

Mortgage -Advisors, Inc. v. Lewis, ——

U.S. ——, 100 S.Ct. 242, 62 L.Ed.2d 146

(1979) (TAMA); Touche Ross & Co. v.

Redington, 442 U.S. , 99 S.Ct. 2479,

61 L.Ed.2d 82 (1979); Cannon v. Univer-

sity of Chicago, supra, I think the cor-

rect answer to our question is easily

fathomed: § 508 creates a private right

of action in the federal courts, without a

requirement that administrative reme-

dies be exhausted in every case.

' Because litigation under § 503—even

the concept of handicap discrimination

itself—is relatively new to the federal

courts, some background regarding that

section and the claims involved here will

be helpful. Section 503(a) of the Act, in

pertinent part, requires that contracts

this case, has submitted to this court copies of

the brief submitted there on behalf of the Unit-

ed States and of the affidavit of Weldon J.

Rougeau, Director of the OFCCP. Both these

documents support the positions set out in the

text. The affidavit of Mr. Rougeau is included

as an Appendix to this opinion.

3248

“in excess of $2,500 entered into by any

Federal department or agency for the

procurement of personal property and

nonpersonal services ‘for the

United States shall contain a provision

requiring that, in employing persons to

carry out such contracts the party con-

tracting with the United States shall

take affirmative action to employ and

advance in employment qualified handi-

capped individuals as defined” in the

Act. Section 503(b) provides an adminis-

trative complaint mechanism permitting

any handicapped individual who believes

any contractor is not in compliance with

such contract to file a complaint with

the Department of Labor. OFCCP has

authority for administration of this sec-

tion and has promulgated regulations.

See 41 C.F.R. Part 60-741 (1978).

The regulations require that federal

agencies insert in all covered contracts a

clause stating, inter alia, “The contractor

will not discriminate against any empioy-

ee or applicant for employment because

3. The full text of the relevant portions of Sex-

tion 503, 29 U.S.C.A. § 793 (West 1975 and

Supp.1979), is set out below:

(a) Any contract in excess of $2,500 en-

tered into by any Federal department or

agency for the procurement of personal

property and nonpersonal services (including

construction) for the United States shall con-

tain a provision requiring that, the party

contracting with the United States shall take

affirmative action to employ and advance in

employment qualified handicapped individu-

als as defined in section 706(7) of this title.

The provisions of this section shall apply to

any subcontract in excess of $2,500 entered

into by a prime contractor in carrying out

any contract for the procurement of person-

al property and nonpersonal services (includ-

ing construction) for the United States. The

President shall implement the provisions of

this section by promulgating regulations

within ninety days after September 26, 1973.

(b) If any handicapped individual believes

any contractor has failed or refuses to com-

ply with the provisions of his contract with

‘ROGERS v. FRITO-LAY, INC.

of physical or mental handicap in regard

to any position for which the employee

or applicant for employment is quali-

fied.” 41 C.F.R. § 60-741.4 (1978).

These regulations also permit individuals

to file complaints with the agency, alleg-

ing that a violation of the Act or regula-

tions has occurred, and establish the pro-

cedures by which the agency itself inves-

tigates and attempts to resolve the com-

plaint. See 41 C.F.R. § 60—741.26 (1978).

While the agency has stipulated that

proven violations “should be resolved by

informal means, including conciliation

and persuasion, whenever possible,” the

regulations provide other enforcement

procedures in case these informal means

fail, including judicial enforcement of

the contractual provisions, the withhold-

ing of progress payments, termination of

the contract, and debarment of the con-

tractor. See 41 C.F.R. § 60-741.28

(1978). In cases where informal resolu-

tion fails, however, none of these mecha-

the United States, relating to employment of

handicapped individuals, such individual

may file a complaint with the Department of

Labor. The Department shall promptly in-

vestigate such complaint and shall take such

action thereon as the facts and circumstanc-

es warrant, consistent with the terms of

such contract and the laws and regulations

applicable thereto.

Section 503(c), not involved in this case, al-

lows the President to waive the application of

§ 503 when “special circumstances in the na-

tional interest so require."

A “handicapped individual” for purposes of

this section is defined in 29 US.C.A.

§ 706(7B) (West Supp.1979) as “any person

who (i) has a physical or mental impairment

which substantially limits one or more of such

person's major life activities, (ii) has a record

of such impairment, or (iii) is regarded as hav-

ing such an impairment.” See also 41 C.F.R.

§ 60-741.2 and Appendix A (1978) (Regula-

tions and Guidelines of Office of Federal Con-

tract Compliance Programs).

ROGERS v. FRITO-LAY, INC.

nisms is clearly geared to produce indi-

vidual relief for the complainant.‘

To illustrate the type of claim that

may be raised under § 503 and to show

how this particular claim was handled, I

set forth the facts presented by Howard

L. Moon, the appellant in No. 77-3263.5

Mr. Moon was employed as Terminal

Manager by defendant/appellee Road-

way Express, Inc. (Roadway), a federal

contractor covered by § 503. On August

3, 1974, while still employed by Road-

way, Mr. Moon was injured in an auto-

mobile accident and, as a result, his left

leg was amputated. He returned to

work with Roadway in June, 1975, where

he remained until he was terminated on

February 18, 1977, missing only one day

at work during that time. Since his ter-

mination, Mr. Moon has been unem-

ployed.

Mr. Moon filed a complaint with the

OFCCP on April 15, 1977, charging that

his termination was in violation of § 508.

On May 15, 1978, the OFCCP released

the results of its investigation, stating:

Investigation by this department indi-

cated that the contractor terminated

the complainant from employment be-

cause of his handicapping condition al-

though the complainant continually

demonstrated that he could perform

the duties of Terminal Manager. The

contractor has refused to reasonably

accommodate the complainant with

employment, and has therefore violat-

ed its obligations under the affirma-

tive action provisions.

4. The administrative enforcement scheme is

discussed in more detail in Part I.C. infra.

5. Because appellant Moon’s action was dis-

missed for failure to state a claim, the facts

were not fully developed below. However, for

purposes of this exposition, the allegations of

the complaint have been taken as true and

additional facts have been gleaned from appel-

The OFCCP further invited Roadway to

join it in attempting an informal resolu-

tion of the matter.

Nevertheless, Mr. Moon received a let-

ter from the OFCCP on November 9,

1979, informing him that the Solicitor’s

Office, to which his case file had: been

forwarded, had returned the file and ad-

vised that “they will take no further ac-

tion on your complaint. Therefore, we

are administratively closing it.” Mr.

Moon was told he might write the Di-

rector of OFCCP seeking reconsideration

of this determination: “the Director

may, for reasonable cause, re-

consider or order the reconsideration of

this determination.” (emphasis supplied)

Only a cave dweller or other layman

would not realize that there has been a

remarkable change of attitude by the

Supreme Court regarding the inference

of private rights of action in the last

fifteen years. Compare J. I. Case Co. v.

Borak, 377 U.S. 426, 84 S.Ct. 1555, 12

L.Ed.2d 423 (1964) with Touche Ross &

Co. v. Redington, 442 U.S. , 99 S.Ct.

2479, 61 L.Ed.2d 82 (1979). The Court

has recently come to emphasize that

“what must ultimately be determined is

whether Congress intended to create the

private remedy asserted” and, conse-

quently, that the question is “basically a

matter of statutory construction.”

TAMA, supra, 100 S.Ct. at 245; Touche

Ross & Co. v. Redington, supra, 99 S.Ct.

lant’s brief and from letters to appellant from

the OFCCP regarding the handling of his ad-"

ministrative complaint.

Mildred Rogers, the appellant in No. 77-

2443, also premised her action on a claim of

discriminatory firing. She brought her suit as

a class action.

at 2485; Cannon v. University of Chica-

go, supra, 99 S.Ct. at 1953 (1979). To

me, this basic insight appears eminently

wise. “Federal courts are not common

law courts of general jurisdiction.” Ma-

jority Opinion at , slip op. at 3238.

Our interpretation of a statute is not an

occasion for our exercise of our own no-

tions as to what we think Congress

ought to have done, but rather an oppor-

tunity to give effect to that which Con-

gress did in fact attempt to do. But

there is no magic in the insight that our

task is one of statutory construction, ca-

pable of vanishing the often almost in-

tractable problems courts face in a case

such as the present one. While this in-

sight does help to focus our inquiry; it is

quite often true, from the nature of the

case, that when a court must decide

whether a statute contains an implied

remedy, the ordinary indicia of congres-

sional intent will be of little assistance.

If, for example, Congress made its intent

to allow private actions explicit in the

statute, there would be no need for liti-

gation such as that before us. Neverthe-

less, the Supreme Court continues to

make it clear that even in such cases as

these courts are to find implied remedies

when persuasive evidence of Congres-

sional intent supports them. See, e. g.,

Cannon v. University of Chicago, supra.

Furthermore,

6. The recognition that our task is statutory

construction tells us, for instance, that we can-

not recognize the doctrine of “statutory torts.”

See Touche Ross & Co. v. Redington, supra, 99

S.Ct. at 2485. See generally Note, Implied

Rights of Action to Enforce Civil Rights: The

Case for a Sympathetic View, 87 Yale LJ.

1378, 1383 (1978). This recognition tells us

_ further that, in the absence of some indication

that Congress intended an implied remedy, the

mere fact that such a remedy might be useful

in enforcing the statutory goals will be of little

significance. See TAMA, supra, 100 S.Ct. at

ROGERS v. FRITO-LAY, INC.

[While the absence of anything in the

legislative history that indicates an in-

tention to confer any private right of

action is hardly helpful to the respon-

dent, it does not automatically under-

mine his position. This Court has held

that the failure of Congress expressly

to consider a private remedy is not

inevitably inconsistent with an intent

on its part to make such a remedy

available. Cannon v. University of

Chicago, supra, 99 S.Ct. at 1953. Such

an intent may appear implicitly in the

language or structure of the statute,

or in the circumstances of its enact-

ment.

TAMA, supra, 100 S.Ct. at 246. A

court’s quest must thus always be for

the elusive beast, congressional intent.

And it must be emphasized that courts

are guilty of judicial legislation not only

when they do that which Congress has

not authorized, but also when they

refuse to give effect to the congressional

purpose.

The Supreme Court has established an

analytical framework designed to drive

from the brush the congressional intent

regarding the establishment of an im-

plied remedy under a statute. See Cort

v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 2088,

45 L.Ed.2d 26 (1975). When we apply

the four factors Cort identifies as “rele-

vant” to the inquiry at hand,’ we must

249; Touche Ross & Co. v. Redington, supra,

99 S.Ct. at 2489.

7. In determining whether a private remedy is

implicit in a statute not expressly providing

one, several factors are relevant. First, is the

plaintiff “one of the class for whose especial

benefit the statute was enacted,” Texas & Pa-

cific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct.

482, 484, 60 L.Ed. 874 (1916) (emphasis sup-

plied)}—that is, does the statute create a feder-

al right in favor of the plaintiff? Second, is

there any indication of legislative intent, ex-

plicit or implicit, either to create such a reme-

ROGERS v. FRITO-LAY, INC.

do so with our eyes wide open and in

such a manner as to be most sensitive to

that which we seek: persuasive evidence

of congressional purpose. I cannot agree

more that courts must avoid “mechanical

adherence” to a “multi-part test.” Maj.

Op. at , slip op. at 3238. But be-

cause I believe the majority has applied

the analytical framework of Cort too re-

strictively—at times even too mechani-

dy or to deny one? See, e. g., National Rail-

road Passenger Corp. v. National Assn. of

Railroad Passengers, 414 U.S. 453, 458, 460, 94

S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974)

(Amtrak). Third, is it consistent with the un-

derlying purposes of the legislative scheme to

imply such a remedy for the plaintiff? ‘See, e.

g., Amtrak, supra; Securities Investor Protec-

tion Corp. v. Barbour, 421 U.S. 412, 423, 95

S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Cal-

hoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13

L.Ed.2d 190 (1964). And finally, is the cause

of action one traditionally 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? See Wheeldin v. Wheeler, 373 U.S. 647,

652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605

(1963); cf. J. I. Case Co. v. Borak, 377 U.S.

426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423

(1964); Bivens v. Six Unknown Federal Nar-

cotics Agents, 403 U.S. 388, 394-395, 91 S.Ct.

1999, 2003-2004, 29 L.Ed.2d 619 (1971) id., at

400, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619

(1971) id., at 400, 91 S.Ct. at 2006 (Harlan, J.

concurring in judgment).

Cort v. Ash, supra, 95 S.Ct. at 2088.

8. Section 90l(a) of Title IX provides in perti-

nent part:

No person in the United States shall, on

the basis of sex, be excluded from participa-

tion in, be denied the benefits of, or be sub-

jected to discrimination under any education

program or activity receiving Federal finan-

cial assistance.

in Cannon, the Court analyzed this provision

and its legislative history under the framework

set forth in Cort v. Ash, supra. It found that

all four factors supported implication of a pri-

vate cause of action. Cannon, supra, 99 S.Ct.

at 1964. Particularly compelling was the fact

that Congress explicitly patterned this provi-

sion on Title VI of the Civil Rights Act of 1964,

3251

cally—to the circumstances of the

present case, I must state my disagree-

ment.

Particularly relevant to my conclusion

is the decision in the Cannon case. The

Supreme Court there held that a private

cause of action existed under § 901(a) of

Title IX of the Education Act Amend-

ments of 1972 (Title IX), 20 U.S.C.A.

§ 1681(a) (West 1978). Although the

42 U.S.C.A. § 2000d (Title VI), which Congress

understood in 1972 as having created a private

right of action. See id. at 1958-1960.

Title VI provides in pertinent part:

No person in the United States shall, on

the ground of race, color, or national origin,

be excluded from participation in, be denied

the benefits of, or be subjected to discrimi-

nation under any program or activity receiv-

ing Federal financial assistance.

In one of the first court of appeals decisions

after Cannon, the third circuit followed it and

Cort v. Ash, supra, to find private rights of

action under both Title VI and § 503’s sister

provision, § 504 of the Rehabilitation Act, 29

U.S.C.A. § 794 (West Supp.1979). See

NAACP v. Medical Center, Inc., 599 F.2d 1247

(3d Cir. 1979). In its Title VI holding, NAACP

was in accord with its numerous predecessors,

discussed in Cannon, supra, 99 S.Ct. at 1957-

58 & n.21. Its § 504 holding, the court be-

lieved, was compelled by its Title VI holding:

“Section 504 is virtually identical to Title VI

and was consciously intended by Congress to

track that statute.” NAACP, supra, 599 F.2d

at 1258. That conclusion was not without its

' antecedents. See, e. g., Doe v. Colautti, 592

F.2d 704 (3d Cir. 1979), amended (Feb. 23,

1979); Davis v. Southeastern Community Col-

lege, 574 F.2d 1158 (4th Cir. 1978), rev’d on

other grounds, —— U.S. ——, 99 S.Ct. 2361, 60

L.Ed.2d 980 (1979); United Handicapped Fed-

eration v. Andre, 558 F.2d 413 (8th Cir. 1977);

Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.

1977); Kampmeier v. Nyquist, 553 F.2d 296

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

tion Authority, 548 F.2d 1277 (7th Cir. 1977).

But see Tragser v. Libbie Rehabilitation Cen-

ter, Inc., 590 F.2d 87 (4th Cir. 1978), cert. de-

nied, —— U.S. ——, 99 S.Ct. 2895, 61 L.Ed.2d

318 (1979) (no private right of action to chal-

lenge employment discrimination under § 504).

3252

language of that statute is quite differ-

ent from that of § 503 of the Rehabilita-

tion Act,® much evidence shows that

Congress’ intent regarding the enforce-

ment of each statute was roughly the

same,’* and many parallels do in fact

exist between the enforcement mecha-

nisms established under them." While

Cannon does not control the disposition

of this case, it is in many ways a path-

finder for those of us who must wind

our way through the thickets of legisla-

tive history, the tundra of administrative

implementation, and the timeworn plains

of judicial precedent. But one must also

recognize that Cannon is not the bench-

mark for the evaluation of whether or

not Congress intended to create an im-

plicit private right of action. As the

Supreme Court pointed out, “Title IX

presents the atypical situation in which

all the circumstances that the Court has

previously identified as supportive of an

implied remedy are present.” Cannon,

In reversing Davis, supra, the Supreme Court

pretermitted the implied right of action issue.

See 99 S.Ct. at 2366 n.5.

Section 504 states, in relevant part:

No otherwise qualified handicapped indi-

vidual in the United States, as defined in

section 706(7) 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 finan-

cial assistance or under any program or ac-

tivity conducted by any Executive agency or

by the United States Postal Service.

9. Compare 29 U.S.C.A. § 793 (West 1975 and

Supp.1979) with 20 U.S.C.A. § 1681(a) (West

1978). The significance of this difference is

discussed in Part A infra.

10. See Part B infra.

11. See Part C infra.

12. It is important to note the special place civil

rights statutes have held in the implication

doctrine. In Santa Clara Pueblo v. Martinez,

436 U.S. 49, 98 S.Ct. 1670, 1678, 56 L.Ed.2d

ROGERS v. FRITO-LAY, INC.

supra, 99 §.Ct. at 1968. Nevertheless,

application of the analytical concepts of

Cannon to § 503 compels my finding of

an implied remedy.”

The first inquiry is whether the plain-

tiff is “ ‘one of the class for whose espe-

cial benefit the statute was enacted’

. . . that is, does the statute create

a federal right in favor of the plaintiff?”

Cort v. Ash, supra, 95 S.Ct. at 2088. The

thrust of this inquiry, as it bears on the

legislative intent, is to determine wheth-

er, in passing the statute, Congress in-

tended to benefit a clearly defined

class—that is, to create protections in

the federal law for them—and not to

enact the law “for the protection of the

general public.” Cannon, supra, 99 S.Ct.

at 1954. This inquiry is a necessary one,

for, if Congress did not intend to benefit

a special class to which the plaintiffs

106 (1978), the Supreme Court stated, “[w]e

have frequently recognized the propriety of in-

ferring a federal cause of action for the en-

forcement of civil rights, even when Congress

has spoken in purely declaratory terms. See,

e. g., Jones v. Alfred H. Mayer Co., 392 U.S.

409, 414 n.13, 88 S.Ct. 2186 n.13, 20 L.Ed.2d

1189 (1968); Sullivan v. Little Hunting Park,

Inc., 396 U.S. 229, 238-40, 90 S.Ct. 400, 405-6,

24 L.Ed.2d 386 (1969)."" See also Cannon, su-

pra, 99 S.Ct. at 1955 n.13. Commentators

have also taken note of this special treatment.

See Note, Implied Rights of Action to Enforce

Civil Rights: The Case for a Sympathetic

View, 87 Yale L.J. 1378 (1978); Karst, Federal

Remedies, 54 U.Det.J.Urb.L. 1025 (1977); Shel-

don & Berndt, Sex Discrimination in Vocation-

al Education: Title IX and Other Remedies, 62

Calif.L.Rev. 1121 (1974). While this back-

ground does not alter my application of the

Cort criteria, I believe that it requires a court

to undertake its inquiry regarding the implica-

tion of a private cause of action under this

civil rights statute with an especially sympa-

thetic eye.

ROGERS v. FRITO-LAY, INC.

belong, but intended instead to benefit

the public generally, it is inherently less

likely that Congress intended to create a

private remedy which was not explicitly

specified in the statute; else the whole

criminal code, for example, might be

found to have an implicit civil counter-

part. See Cort v. Ash, supra, 95 S.Ct. at

2088-89. Properly conceived, this in-

quiry is a “threshold question.” Cannon,

supra, 99 S.Ct. at 1953. I would con-

clude, as has every district court to ex-

amine § 503 in this context,” that § 503

reaches the threshold.

Recent Supreme Court cases make it

clear that our question is answerable “by

looking to the language of the statute

itself.” Id. See TAMA, supra, 100 S.Ct.

at 245; Touche Ross & Co. v. Redington,

supra, 99 S.Ct. at 2489. In explaining

the application of this factor in Cannon,

the Court used-as one illustration the

language involved in the early case of

Texas & Pacific R. Co. v. Rigsby, 2A1

U.S. 33, 36.S.Ct. 482, 60 L.Ed. 874 (1916):

[T]he statutory reference to “any em-

ployee of any such common carrier” in

the 1893 legislation requiring railroads

to equip their cars with secure “grab

13. See, e. g., Hart v. County of Alameda, su-

pra, F.Supp. at ——--——-; Anderson v.

Erie Lackawanna R. Co., supra, 468 F.Supp. at

936; Wood v. Diamond State Tel. Co., supra,

440 F.Supp. at 1008; Moon v. Roadway Ex-

press, Inc., supra, 439 F.Supp. at 1309; Rogers

v. Frito-Lay, supra, 433 F.Supp. at 202.

14. The section of the statute to which the

Court referred states: “any employee of any

such common carrier who may be injured by

any locomotive, car or train in use contrary to

the provision of this act shall not be deemed

thereby to have assumed the risk .._.. .”

27 Stat. 532.

15. it is of no significance to the issue at hand

that § 503 fails to mention explicitly the non-

discrimination component implicit in its af-

firmative action requirement. Common sense

tells us that “affirmative action” is a more

comprehensive concept, which of necessity in-

irons or handholds,” see 27 Stat. 531,

5382, made “irresistible” the Court’s

earliest “inference of a private right

of action,”—in that case in favor of a

railway employee who was injured

when a grab iron gave way.

Cannon, supra, 99 S.Ct. at 1953.“ Thus,

to determine whether § 503 benefits a

special class, we must ascertain whether

it “expressly identifies the class Congress

intended to benefit” and is drafted “with

an unmistakable focus on the benefited

class.” Id. at 1954—55.

The language of § 503 meets this test.

Section 503(a) mandates that contracts

made for the federa] government must

contain clauses requiring the contractor,

“in employing persons to carry out such

contract,” to “take affirmative action to

employ and advance in employment

qualified handicapped individuals.” Fur-

thermore, § 503(b) authorizes “any hand-

icapped individual” to file a complaint

with the Department of Labor when he

or she believes the contractor has failed

to comply with his obligations, and the

complaints authorized include individual

complaints of discrimination.* Taken

corporates a duty of nondiscrimination. As

was stated in Southern Jllinois Builders Ass’n

v. Ogilvie, 471 F.2d 680, 684 (7th Cir. 1972),

_ “The obligation to take affirmative action im-

parts more than the negative obligation not to

discriminate.” See also Mele v. Dept. of Jus-

tice, 395 F.Supp. 592, 594-95 (D.N.J.1975),

aff'd sub nom. Mele v. E.E.O.C., 532 F.2d 747

(3d Cir. 1976).

Further, the OFCCP regulations require that

the “affirmative action” clause in the contract

state, “The contractor will not discriminate

against any employee or applicant for employ-

ment because of physical or mental handicap

in regard to any position for which the em-

ployee or applicant for is quali-

fied.” 41 C.F.R. § 60-741.4 (1978). See id. at

§ 60-741.5(c)(4) (adoption of affirmative action

program does not “relieve a contractor from

liability for discrimination under the Act.”’)

3254

together, these elements of § 503 focus

unmistakably on the class benefited, a

class in which appellants have alleged

their membership; the language of § 503

is at least as favorable to implication as

the language involved in Rigsby, which,

as I have noted, the Court approved in

Cannon.

Despite this fact, the majority sug-

gests that more may be required of the

statutory language before we may look

favorably upon the question of inferring

a private cause of action. Virtually ig-

noring the first half of the Cort formula-

tion which tells us to ask whether the

statute was enacted for the “especial

benefit” of the plaintiff class, the major-

ity seizes upon the second half—which

asks whether a “federal right” was cre-

ated in favor of the class. It then relies

heavily upon the statement in Cannon

that “the right—or duty—creating lan-

guage of the statute has generally been

the most accurate indicator of the pro-

priety of implication of a cause of ac-

tion.” Cannon, supra, 99 S.Ct. at 1954 n.

13. Clearly, as the majority points out,

the language of § 503 does not fit neatly

Finally, the legislative history furnishes

abundant evidence that Congress intended

§ 503 to be an antidiscrimination provision. In

the report accompanying the bill which be-

came the Rehabilitation Act, for example, the

Senate Committee on Labor and Public Wel-

fare characterized § 503(b) as an antidiscrim-

ination measure: “The bill further provides

that a handicapped individual who has a dis-

crimination complaint against a Federal con-

tractor may file a complaint with the Depart-

ment of Labor.” S.Rep.No.93-318, 93d Cong.,

2d Sess., reprinted in [1973] U.S.Code Cong. &

Admin.News, pp. 2076, 2123. The reports ac-

companying the earlier versions of the Act, see

note 19 infra, contained virtually identical lan-

guage. See S.Rep.No.92-1135, 92d Cong., 2d

Sess. 49 (1972); S.Rep.No.93-48, 93rd Cong.,

ist Sess. 53 (1973).

ROGERS v. FRITO-LAY, INC.

into the pattern the Court identified in

Cannon as the most fertile field for im-

plication.* But equally clearly, I think,

the Court did not intend to require a

statute to incorporate some talismanic

incantation before it can be deemed to

create a federal right for its intended

beneficiaries. We should look to the

substance of the obligations created by

the statute and not wear the kind of

judicial blinders that force us to exalt

the form of language over its content.

After all, the Supreme Court has told us

only that a particular form of language

may be the “most accurate indicator” of

whether an implied remedy is present; it

did not make that form a sine qua non.

When the statutory language falls into

the pattern identified in Cannon, it may

itself provide direct evidence of congres-

sional intent to create an implied reme-

dy. When it does not, but nevertheless

reveals a clear intent to benefit the

plaintiff class, other indicia of congres-

sional intent must be considered. See

TAMA, supra, 99 S.Ct. at 245-46. As

evidence of the congressional intent

present in § 503, I propose to examine

whether or not it may fairly be read as

16. Cannca identified statutes like Title LX (‘No

person shall be excluded .=._—-.:«€""'—«20:' US.

C.A. § 1681 (West 1978)) and § 5 of the Voting

Rights Act (“No person shall be denied .

42 U.S.C.A. § 1973c (West Supp.1979)) as con-

taining the type of language most conducive to

judicial inference of a private action. See 99

St. at 1954 n.13. Interestingly, however, it

Ancluded in its list of prototypical statutes that

involved in Texas & Pac. R. Co. v. Rigsby,

supra. As note 14 supra shows, this statute

was not explicitly declarative of a federal

right, but merely stated that railroad employ-

ees injured by the company's violation of the

statute were not to be deemed to have as-

sumed the risk of such injuries.

ROGERS v. FRITO-LAY, INC.

creating a “federal right” in favor of the

plaintiff class. I think it can.

First, § 503(a) requires the affirmative

action clause to be incorporated in all

covered contracts. While the obligation

may be contractual, it is not a bargained

term. Contractors must agree to it to do

business with the federal government.

In fact, the OFCCP regulations provide

that whether or not the affirmative ac-

tion clause is physically incorporated into

the contract or whether or not the con-

tract is even a written one, the clause

shall be deemed a part of the contract by

“operation of the Act.” 41 C.F.R. § 60-

741.23 (1978). Thus, in operation, § 503

17. I do not believe that it is an insuperable

obstacle to the inference of a private right of

action under § 503 that the affirmative action

obligation is to be assumed contractually. In

McDaniel v. University of Chicago, 548 F.2d

689 (7th Cir. 1977), where the court concluded

that the plaintiff class of laborers and mechan-

ics were the special beneficiaries of the Davis-

Bacon Act, 40 U.S.C. § 276a et seq., the court

reasoned as follows:

The Davis-Bacon Act by its terms mandates

that the contract between the federal

government and the contractor provide that

laborers and mechanics hired by the con-

tractor be paid the minimum wages deter-

mined by the Secretary of Labor to be pre-

vailing for the corresponding class of labor-

ers in the locality. The laborer is not only

the principal beneficiary of the statute, but

also the third-party beneficiary of a contract

provided for by the statute.

548 F.2d at 693.

Furthermore, in Lau v. Nichols, 414 U.S.

563, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974), the

Court, in granting relief to plaintiffs under Ti-

tle VI, relied in part upon the fact that some of

the affirmative duties to which plaintiffs

sought to hold defendants were assumed in a

funding contract between defendants and

HEW. Moreover, Justice Stewart in his con-

currence noted somewhat cryptically that “re-

spondents do not contest the standing of peti-

tioners to sue as beneficiaries of the federal

funding contract.” Jd. at 790 n.2. Lau is of-

ten cited for the proposition that a private

is very much like Title VI or Title IX—

with their explicit declarations of policy.

Indeed, the Department of Health, Edu-

cation and Welfare (HEW) requires con-

tractual assurances under those provi-

sions. See 45 C.F.R. §§ 80.4 & 86.4

(1978).""

Second, as noted, § 503(b) permits the

intended beneficiaries of the Act to in-

voke its protections by filing an adminis-

trative complaint. These provisions

make § 508 in its entirety both more and

less than Title IX in terms of the explicit

conferral of a benefit on the beneficiary

ptass. While it is only indirectly declara-

tive of the federal policy, it explicitly

cause of action exists under Title VI. See, e.

g., NAACP v. Medical Center, supra, 599 F.2d

at 1256. Cf. Lloyd v. Regional Transportation

Authority, supra, 548 F.2d at 1287 n.31.

(Finding private right of action under § 504 of

the Act, noting the aspect of Lau discussed

above and suggesting that on remand plaintiffs

might in discovery seek to ascertain whether

such agreements existed there between de-

fendants and federal agencies). And this cir-

cuit in Bossier Parish School Board v. Lemon,

370 F.2d 847, 850—51 (5th Cir. 1967), cert. de-

nied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d

1350 (1967), afforded some not easily definable

significance to “contractual assurances” be-

tween the federal government and the defend-

ant school board for the benefit of members of

plaintiff's class in allowing plaintiffs to bring a

_ private desegregation action under Title VI and

the 14th Amendment.

Finally, in finding that § 215 of the Invest-

ment Advisors Act of 1940, 15 U.S.C. § 806—

15, contained an implied remedy of recission

of contracts declared “void” by that section,

the Supreme Court held that the suit for recis-

sion could be brought in federal court-—despite

the fact that such suits for recission of a con-

tract would traditionally be relegated to the

state courts. See TAMA, supra, 100 S.Ct. at

246,47 & n.8. Thus, while the right of action

ar, for here arises from § 503 itself, plain-

s might be held to have a right to sue in

ederal court as third-party beneficiaries of the

contract mandated by § 503(a).

3256

provides for an individual right of re-

lief."*

Looking at all these circumstances re-

alistically, I think we should find that

§ 503 establishes protections in the fed-

eral law for qualified handicapped indi-

viduals and indicates that Congress

meant these rights to vest on individual

discriminatees. The structure and sub-

stance of the statute create the federal

right the majority requires. While the

language of § 503 does not fit the pat-

tern most favorable for finding an im-

plied remedy and it is appropriate to

scrutinize closely the other factors rele-

vant to the question of the*congressiona]

intent, I nevertheless would find that

“the threshold question under Cort,”

Cannon, supra, 99 S.Ct. at 1946, is

squarely met here.

18. The express provision of an individual com-

_plaint mechanism in § 503(b) differentiates

§ 503 from the type of provision set out in

Cannon, supra,.99 S.Ct. 1955-56 n.14, which

the Court characterized as a “simple directive”

and to which the majority in this case has

suggested § 503 is analogous. The provision

discussed in Cannon provided:

The Secretary shall not make any grant,

loan guarantee, or interest subsidy payment,

nor shall the Secretary enter into any con-

tract with any institution of higher educa-

tion, or any other postsecondary institution,

center, training center, or agencies repre-

senting such institutions unless the applica-

tion, contract, or other arrangement for the

grant, loan guarantee, interest subsidy pay-

ment, or other financial assistance contains

assurances satisfactory to the Secretary that

any such institution, center, or agency will

not discriminate on the basis of sex in the

admission of individuals to any program to

which the application, contract, or other ar-

rangement is applicable.

117 Cong.Rec. 30411 (1971). When § 503 is

read in its totality, it is more than a “di-

ROGERS v. FRITO-LAY, INC.

If the first Cort factor casts only an

oblique light on congressional] intent to

create an implied remedy, the second

factor illuminates the question directly.

The inquiry here searches for “any indi-

cation of legislative intent, explicit or

implicit, either to create such a remedy

or to deny one.” Cort v. Ash, supra, 95

S.Ct. at 2088. The Supreme Court has

told us that this factor “requires consid-

eration of legislative history.” Cannon,

supra, 99 S.Ct. at 1956.

To say that the history of the legisla-

tive consideration and elucidation of the

Act is complex is to be guilty of an

understatement more daring, perhaps,

than even a Hemingway would risk.”

The cases require, however, that a court

wind its way, Theseus-like, through its

labyrinthine corridors of vetoes, amend-

rective”’ and confers a benefit directly on ap-

pellants’ class.

19. Before it finally became law, the Rehabilita-

tion Act of 1973 had two predecessors suc-

cumb to presidential vetoes. The vetoes were

directed, as was most of the discussion during

the legislation’s perambulations around the

halls of Congress, at its spending portions.

Nevertheless, I have followed § 503 from its

origin in the first Senate bill. A summary of

the history of this Act is contained in S.Rep.

No.93-318, supra, at 2078-2090.

The Rehabilitation Act Amendments of 1974

proved slightly less peripatetic than their sire;

they were only vetoed once. Their history is

summarized in S.Rep.No.93-1297, 93d Cong.2d

Sess., reprinted in [1974] U.S.Code Cong. &

Admin.News, pp. 6373, 6376-6381. Their

amendment of the definition of “handicapped

individuals” applicable to § 503 is relevant to

the question at hand.

The Rehabilitation, Comprehensive Services

and Developmental Disabilities Amendments

of 1978 required only one passage to become

law. Its provision of attorneys’ fees for § 503

is considered below.

ROGERS v. FRITO-LAY, INC.

ments, and even more amendments, fol-

lowing always the Ariadne’s thread of

the legislative consideration of § 503. I

therefore propose to investigate the leg-

islative history of the Rehabilitation Act,

the Rehabilitation Act Amendments of

1974 (the 1974 Amendments), and the at-

torney’s fees provisions of the Rehabili-

tation, Comprehensive Services, and De-

. velopmental Disabilities Amendments of

1978 (the 1978 Amendments). I will

then discuss the significance to be at-

tached to Congress’ statements of its in-

tentions in § 503.

1. The Rehabilitation Act.

As Congress passed and repassed the

Act in 1972 and 1973, it established wide-

ranging federal and federally-funded

programs to aid in the more complete

integration of handicapped individuals

into the mainstream of society. See

S.Rep.No.93-318, supra, at 2090-92.

Most of the discussion in Congress and,

after the vetoes, most of the controversy,

focused on these programs and the ap-

propriations they required. Consequent-

ly, Congress devoted little of its discus-

sion to its intentions regarding the non-

controversial antidiscrimination provi-

sions of Title V of the Act—including

§ 503.”

Further, Congress had already con-

sidered and resolved its questions regard-

ing the use of the power of the federal

purse to enforce civil rights as early as

1964 in its consideration of Title VI.

See NAACP v. Medical Center, Inc., su-

20. In the reconsideration of the legislation af-

ter the vetoes, discussion became even more

truncated. See 119 Cong.Rec. 5885 (1973)

(Sen. Randolph).

21. Senator Humphrey concluded, “The time

has come to firmly establish the right of these

Americans to dignity and self-respect as equal

and contributing members of society, and to

3257

pra, 599 F.2d at 1253-54. Then, in en-

acting Title IX of the Education Act

Amendments of 1972, it again trod this

same ground. When it came to consider

§§ 508 and 504 of the Rehabilitation Act

in 1972 and 1973, which were in the per-

tinent ways analogous to these other

statutes, it not surprisingly found no oc-

casion to pause to reconsider or further

explain its intentions in adopting this

mode of attack.

Such discussion as did take place is of

little aid in ascertaining whether Con-

gress contemplated a private right of ac-

tion under § 508. The statements most

nearly addressing the question are at

best of dubious import. During the orig-

inal consideration of the legislation in

1972, Senator Humphrey submitted a

statement, introduced on the floor by

Senator Cranston, in which he com-

mented on the inclusion of the predeces-

sors of §§ 503 and 504 in the Act. He

indicated his belief that these provisions

“carr{ied] through the intent” of bills he

had introduced to amend Titles VI and

VII of the Civil Rights Act of 1964 “to

guarantee the right of persons with a

mental or physical handicap tw partici-

pate in programs receiving Federal as-

sistance, and to make discrimination in

employment because of these handicaps,

and in the absence of a bona fide occu-

pational qualification, an unlawful em-

ployment practice.” 118 Cong.Rec. 32310

(1972)." While this statement does not

establish that a private cause of action

was intended under § 503, equally cer-

end the virtual isolation of millions of children

and adults from society.”

Senator Humphrey made the same state-

ment during the Senate’s second passage of

the legislation. See 119 Cong.Rec. 635 (1973).

See also 119 Cong.Rec. 6145 (1973) (Sen.

Humphrey).

3258

tainly it does not show an intent to deny

such a.remedy. Nor, in fact, do any of

the other statements made during the

consideration of the Act. As was ap-

parent to the Congress at the time, it

had attempted so much in the legislation

that its full implications could not be

immediately apparent.”

2. The 1974 Amendments

Congress began its clarification of

those implications when it amended the

Act in 1974. In particular, it focused on

the problems of § 503’s implementation

in its amendment of the definition of

“handicapped individual” applicable to

that section.” As the original confer-

ence report shows, Congress meant the

amendment to effectuate more fully its

original intention to provide all qualified

handicapped individuals protection

against discriminatory practices, and, un-

der § 503, to require affirmative action

for their benefit under contracts in

which federal funds were expended. It

22. See, e. g.. 119 Cong.Rec. 7114 (1973) (Rep.

Vanik).

23. For example, Representative Quie stated

during consideration of the original bill,

“[T]here are so many new and far-reaching

aspects of this bill that I think it will take

years before the true impact of all that we

have done here is felt around the country.”

119 Cong.Rec. 36313-14 (1973).

24. Quoted in note 3 supra.

25. Congress feared that the original definition,

which referred to the individual's ability to

benefit from vocational rehabilitation pro-

grams, would be too restrictive if applied to

§ 503. See S.Conf.Rep.No.93-1270, 93d Cong.,

2d Sess. 25 (1974)

26. In the debates on the attorney's fees provi-

sion of the 1978 Amendments, Senator Cran-

ston quoted in this precise manner from S.Rep.

No.93-1297, supra, at 6390-91, which accom-

panied the bill on its second passage. See 124

Cong.Rec. $15593 (daily ed. Sept. 20, 1978).

Obviously, this report contained virtually the

same language as the conference report.

ROGERS v. FRITO-LAY, INC.

meant, in addition, to clarify its inten-

tion that discrimination against the

handicapped was to be treated as simi-

larly as possible to that against other

minority groups in those contexts in

which the Act applied. See S.Conf.Rep.

No.93-1270, 938d Cong., 2d Sess. 25, 26

(1974).

In explaining how §§ 503 and 504

were to be implemented under this new

definition, the conference report pointed

out that:

Section 504 was patterned after, and is

almost identical to, the anti-discrimina-

tion language of Section 601 of the

Civil Rights Act of 1964 [Title VI]

' and Section 901 of the Edu-

cation Amendments [sic] of 1972 [Title

IX}. . .. This approach to the

implementation of Section 504, which

closely follows the models of the

above-cited anti-discrimination provi-

sions, would permit a judi-

cial remedy through a private action.*

The full text of this passage from the confer-

ence report states:

Section 504 was patterned after, and is al-

most identical to, the antidiscrimination lan-

guage of section 601 of the Civil Rights Act

of 1964, U.S.C. 2000d-1 (relating to race,

color, or national origin), and section 901 of

the Education Amendments of 1972, 42[20]

U.S.C. 1683 (relating to sex). The section

therefore constitutes the establishment of a

broad government policy that programs re-

ceiving Federal financial assistance shall be

operated without discrimination on the basis

of handicap. It does not specifically require

the issuance of regulations or expressly pro-

vide for enforcement procedures, but it is

clearly mandatory in form, and such regula-

tions and enforcement are intended.

The language of section 504, in following the

above-cited Acts, further envisions the im-

plementation of a compliance program

which is similar to those Acts, including pro-

mulgation of regulations providing for inves-

tigation and review of recipients of Federal

financial assistance, attempts to bring non-

ROGERS v. FRITO-LAY, INC.

And, immediately following this state-

ment, the report continues:

It is intended that Sections 503 and

504 be administered in such a manner

that a consistent, uniform and effec-

tive Federal approach to discrimina-

tion against handicapped persons

would result.

Id. at 27.

Senator Stafford, ranking minority

member of the Subcommittee on the

Handicapped of the Committee on Labor

and Public Welfare and a leading advo-

cate of this legislation on the floor dur-

ing all stages of its consideration, ad-

dressed these same considerations during

the Senate debate. After referring to

§§ 503 and 504 along with Title VI and

Title IX, and quoting part of the original

Senate report, he stated:

As the Senators are aware, the sec-

tions I have just cited establish Feder-

al Government policies as they relate

complying recipients into voluntary compli-

ance through informal efforts such as negoti-

ation, and the imposition of sanctions

against recipients who continue to discrimi-

sanctions would include, where appropriate,

the termination of Federal financial assist-

ance to the recipient or other means other-

wise authorized by law. Implementation of

section 504 would also include pre-grant

analysis of recipient to ensure that Federal

funds are not initially provided to those who

discriminate against handicapped individu-

als. Such analysis would incluce pre-grant

review procedures and a requirement for as-

surances of compliance with section 504.

This approach to implementation of section

504, which closely follows the models of the

S.Conf.Rep.No.93—1270, supra, at 27.

to programs receiving Federal finan-

cial assistance and the prohibition

agaist discrimination on any basis. It

was the committee’s intent that the

énforcement under sections 503 and

504 would be similar to that carried

out under section 601 of the Civil

Rights Act and 901 of the Education

Amendments [sic] of 1972.

I cannot stress strongly enough the

need for strong enforcement of Sec-

tions 503 and 504 :

120 Cong.Rec. 30551 (1974).

Taken together, these statements

present cogent, though not decisive, evi-

dence that Congress contemplated a pri-

vate right of action under § 503. First,

the statement in the report regarding

the existence of a private right of action

under § 504 has been given great weight

in cases finding that such cause exists

under that section.” Second, while the

statement immediately following, to the

27. See, ¢. g.. Lioyd v. Regional Transportation

Authority, supra, 548 F.2d at

NAACP v. Medical Center, Inc., supra, 599

F.2d at 1258. The court in Lloyd examined the

c 3260

effect that administration of §§ 503 and

504 should be “consistent” and “uni-

form,” is not unambiguous, it may fairly

be read to suggest that Congress intend-

ed an implied remedy under § 503 and at

the least indicates an implicit Congres-

sional recognition that, since a private

right of action would not be inconsistent

with its purposes in § 504, neither would

it be inconsistent with those underlying

§ 503.8% Third, Senator Stafford’s state-

ment, developing the themes of the re-

port, expressly recognizes the similarity

of the original congressiona! intent un-

derlying §§ 503 and 504, and a further

similarity between that underlying those

sections and Title VI and Title IX. In

Cannon, in which the Supreme Gourt

held that a private cause of action exist-

ed under Title IX, it relied heavily on

expressions of congressional under-

standing that Title IX was to have simi-

lar enforcement mechanisms to those of

Title VI and that a private cause of ac-

tion existed under the latter provision.

Cannon, supra, 99 S.Ct. at 1956-60. In

this case, one again finds Congress build-

ing on its understanding of the enforce-

ment mechanisms of Title VI and Title

IX. ‘In sum, this material constitutes at

least some evidence that Congress con-

templated a private cause of action un-

der § 503.

We need not, however, rely on this

evidence alone. Congress in 1978 provid-

ed even more persuasive evidence that

§ 503 had been intended to create a pri-

vate cause of action in the federal

courts.

28. In Hart v. County of Alameda, —— F.Supp.

—— (N.D.Cal.1979), the court relied in part

upon this statement in finding an implied rem-

edy under § 503. id. at ——.

29. The provision was explicitly modelled on

the Civil Rights Attorney's Fee Awards Act of

ROGERS v. FRITO-LAY, INC.

3. The 1978 Amendments

The attorney’s fees provision of the

1978 Amendments constitutes an unim-

peachable statement by Congress that it

understood § 503 to include an implied

private remedy and provides strong evi-

dence of its original intent. In fact, if

Congress did not understand that in

§ 503 it had already created such a rem-

edy, this provision insofar as it applies to

§ 503—which it clearly does—would

make little sense; for there would be no

private action to which it would apply.

The 1978 amendments added a new

section, § 505, 29 U.S.C.A. § 794a (West

Supp.1979), to the Act, which in relevant

part provides:

In any action or proceeding to enforce

or charge a violation of a provision of

this subchap ier, the court, in its discre-

tion, may ailow the prevailing party,

other than the United States, a rea-

sonable attorney’s fee as part of the

costs.

§ 505(b), 29 U.S.C.A. § 794a(b). By its

terms this provision applies to § 508 and

explicitly presumes private and indepen-

dent judicial actions. Cf. Cannon, supra,

90 S.Ct. at 1958-9. (attorney's fees for

Title VI) Since attorney's fees are to be

made available to parties “other than the

United States,” the statute contemplates

the presence of private plaintiffs who

attempt “to enforce or charge a violation

of” the section. Furthermore, the lan-

guage clearly looks to an “action or pro-

ceeding” before “the court,” not before

an administrative agency.™ Lest there

1976, 42 U.S.C.A. § 1988 (West Supp.1979).

See 124 Cong.Rec. $15590-1 (daily ed. Sept.

20, 1978) (Sen. Cranston). In Cannon, the Su-

preme Court examined the meaning of the par-

allel language in the 1976 Act and reached the

same conclusions that I have set forth in the

ROGERS v. FRITO-LAY, INC.

be any doubt about the implications of

this enactment, I turn to its legislative

history, which resoundingly supports my

interpretation both of the amendment

and § 503.

First, while the original house bill

(H.R.12467) explicitly provided fees for

private actions brought under §§ 501,

503 or 504 of the Act,™ the Senate bills’

attorney’s fee provision—the source for

§ 505 as set out above—dropped the ref-

erence to the individual sections and

made itself applicable generally to all

sections of Title V. The Senate report,

however, further clarified the intent un-

derlying the provision:

The committee believes that the rights

extended to handicapped individuals

under Title V, that is, Federal govern-

ment employment, physical accessibili-

ty in public buildings, employment un-

der federal contracts, and nondiscrimi-

nation under federal grants—are and

will continue to be in need of constant

vigilance by handicapped individuals to

assure compliance and the availability

of attorney’s fees should assist in vin-

dicating private rights of action in the

case of section 502 and 503 cases, as

well as those arising under section 501

and 504.

text regarding its meaning. See 99 S.Ct. at

1951-52 n.6.

30. The House Committee on Education and

Labor commented as follows:

Section 119 of H.R.12467 as amended would

add a new section 505 to the act. The new

section permits courts, at their discretion, to

award to the prevailing party, other than the

United States, in any action or proceeding to

enforce sections 501, 503 or 504 of the act, a

reasonable allowance to cover the costs of

attorneys’ fees. Section 50! relates to af-

firmative action in Federal employment of

the handicapped, section 503 relates to af-

firmative action in employment of the handi-

capped by certain Federal contractors, and

section 504 relates to nondiscrimination

3261

S.Rep.No. 95-890, 95th Cong., 2d Sess. 19

(1978) (emphasis supplied).

The debates on the floor of the Senate

further support my conclusions concern-

ing both the intent underlying § 505 and

that underlying § 503. Senator Cran-

ston, who had been Senate floor mana-

ger of all the previous legislation and

who authored the attorney’s fee provi-

sion, listed the sections of the Act cover-

ed by the provision, including “employ-

ment under federal contracts,” and add-

ef, “Priavte (sic) enforcement of these

Title V rights is an important and neces-

sary aspect of assuring that these rights

are vindicated and enforcement is uni-

form.” 124 Cong.Rec. 15590 (daily ed.

Sept. 20, 1978). Later a colloquy be-

tween Senators Cranston and Bayh indi-

cated explicitly that both Senators un-

derstood that Title V of the Act autho-

rized private suits, just as they under-

stood Title VI and Title IX did. This

colloquy further indicated that the Sena-

tors understood Title V of the Act, in-

cluding § 503, to have originally contem-

plated private suits and, correspondingly,

that what the Congress said and did now

was merely a clarification of that origi-

nal intent and an attempt to ensure its

against the handicapped by recipients of

Federal financial assistance. The proposed

amendment is not in any way unique. At

present there are at least 90 separate attor-

neys’ fees provisions to promote enforce-

ment of over 90 different Federal laws. In

fact, disabled individuals are one of the very

few minority groups in this country who

have not been authorized by the Congress to

seek attorneys’ fees. The amendment pro-

poses to correct this omission and thereby

assist handicapped individuals in securing

the legal protection guaranteed them under

title V of the act.

H.R.Rep.No.95-1149, 95th Cong., 2d Sess.

(1978), reprinted in [1978] U.S.Code Cong. &

Admin.News 7332.

3262

vindication. Senator Bayh cited cases

such as Bossier Parish School Board v.

Lemon, supra, as correctly interpreting

congressional intent under Title VI by

allowing such private suits. He conclud-

ed:

I thank the distinguished Senator from

California for taking time to make

clear the continuing intention of Con-

gress that private actions be allowed

under titles VI and VII of the Civil

Rights Act of 1964, title IX of the

Education Amendments (sic) of 1972

and title V of the Rehabilitation Act

of 1973.

124 Cong.Rec. S15593 (daily ed. Sept. 20,

1978) (emphasis supplied).

31. One other point regarding the legislative

commentary on § 503 should be mentioned.

In 1979, the Senate Committee on Labor and

Human Resources, the successor to the Com-

mittee on Labor and Public Welfare, reported

a bill which would amend Title VII of the Civil

Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.

(West 1974), to add the handicapped to the

groups within its protections. In its report

appears the following statement:

The Committee stresses that the amend-

ments made to the Civil Rights Act of 1964

by this bill do not in any way affect the

rights, remedies, and procedures already ac-

corded to handicapped individuals by title V

of the Rehabilitation Act of 1973, as amend-

ed. Nor are the responsibilities of covered

entities, Federal departments, agencies, and

instrumentalities imposed by title V altered

in any way by this legislation.

The Committee wishes to make clear and

definite the specific protections against dis-

crimination in employment provided under

title V of the Rehabilitation Act and the right

of handicapped individuals to enforce those

protections in a court of law.

Congress enacted title V of the Rehabilita-

tion Act in 1973 to eliminate discrimination,

on the basis of handicap, in Federal employ-

ment and federally funded activities. In

amending title V in 1978, this Committee

Stated that it was adding section 505 ‘to en-

hance the ability of handicapped individuals

ROGERS v. FRITO-LAY, INC.

Not one of these statements was ever

questioned during the consideration of

this legislation.”

4. The Significance of the Legislative

Materials

Taking into account the totality of the

legislative consideration of § 503, this

much at least is indisputable: Congress

had told us—though subsequent to the

passage of § 503—that it originally in-

tended an implied remedy under § 503

and now firmly understands that such a

remedy exists. We may know this not

only from individual statements of mem-

bers of Congress and not only from the

reports of congressional committees, but

also from an enactment of positive law—

to assure compliance with the civil rights

provisions of title V * * *. (S.Rept.No.

95-890, 95th Cong., 2d Sess., p. 18 (1978)

. . .. This Committee stated in 1978 its

belief

that the rights extended to handicapped

individuals under title V * * * are,

and will remain, in need of constant vigi-

lance, by handicapped individuals to as-

sure compliance, and the availability of at-

torney's fees should assist in vindicating

private rights of action in the case of sec-

tion 502 and 503 cases, as well as those

arising under section 501 and 504.

(S.Rept.No. 95-890, 95th Cong., 2d Sess.,

p.19(1978)) . . ..

It is, and has always been the Committee's

intent that any handicapped individual ag-

grieved by a violation of title V has the right

under existing law to proceed privately in

federal court to enforce the rights and reme-

dies afforded under title V of the Rehabilita-

tion Act of 1973, as amended, and to receive

back pay and attorney's fees if successful.

S.Rep.No. 96-316, 96th Cong., Ist Sess., pp.

12-13 (1979).

This report clearly supports the interpreta-

tion of congressional intent set forth in this

section. It also indicates that the Committee's

understanding of the meaning of § 503 is so

well-established that it must take it into

account in its attempt to amend Title VII.

ROGERS v. FRITO-LAY, INC.

the attorney’s fees provision—voted upon

by all members of Congress, premised on

that understanding of the original intent

and that, insofar as it applies to § 503,

makes no sense if that understanding is

wrong.

Nevertheless, the majority has decided

that Congress is wrong and leaves dan-

gling the attorney’s fees provision for

§ 503. They hold that all the legislative

materials I have discussed are unpersua-

sive and read from the congressional si-

lence in 1973 an intent to disallow pri-

vate actions under § 503. I take as typi-

cal of the majority’s approach to this

matter its conclusions regarding the con-

sideration and passage of the attorney’s

fees amendments in 1978:

It may, therefore, fairly be said that

the 1978 committees of both Houses

assumed that a private cause of action

had somehow been created in the past.

The existence of such a postulate is

neither logical nor legislative basis to

conclude that the 1973 statute did in

fact create the action; and, if the 1973

statute did not authorize the cause of

action, the 1978 statute evidences no

intention to create one. An assump-

tion is not law.

Maj. Op. at ~ , slip op. at

3242. There are several problems with

this type of analysis.

ignores the fact that Congress in 1978—

and, indeed, in 1974—did not merely tell

us that it assumed a private cause of

action existed, but told us that it had

originally intended such an implied rem-

edy—that this was its “continuing inten-

tion.” Second, the majority fails to give

due regard to the fact that we deal here

not only with the views of two commit-

tees, but also with an action taken by

both Houses of Congress in enacting

laws. As I have shown, the attorney’s

fees provision is premised on the exist-

First of all, it .

ence of an implied remedy. Finally, and

perhaps most significantly, the Supreme

Court in Cannon considered and rejected

precisely the type of reasoning the ma-

jority employs. The crux of the question

before us is not whether Congress in

1974 or 1978 intended then to create a

private cause of action under § 508, but

whether we may give weight to these

later statements in interpreting the orig-

inal intent. The Supreme Court has told

us in Cannon not only that we can give

them persuasive weight, but that we

must.

After the seventh circuit originally

held that no implied remedy existed un-

der Title IX, it granted a petition for

rehearing to determine “whether the in-

clusion of Title IX within the provisions

of the Civil Rights Attorney’s Fees

Award Act of 1976 require{d]

a different resolution of the Title IX

ae .”’ Cannon v. University

of Chicago, 559 F.2d 1063 (7th Cir. 1976),

rev'd, 441 U.S. 677, 99 S.Ct. 1946, 60

L.Ed.2d 560 (1979). In reaffirming its

original result, the seventh circuit con-

cluded:

As we read the legislative history of

the Attorney’s Fees Award Act, it pro-

vides no support for plaintiff’s argu-

ment that the inclusion of Title IX

within the Act was intended to pro-

vide a private right of action under

Title IX. At best, the remarks to

which plaintiff has referred us suggest

only that some members of Congress

may have assumed that private suits

were authorized under all of the stat-

utes included within the Act. But,

even if the entire Congress shared the

assumption that a private right of ac-

tion was authorized by Title IX, none

of the precedents on which plaintiff

relies would be controlling, for they

3264

involved subsequent legislative history

explicitly declarative of Congress’s

own intent in passing a given statute,

rather than a mere assumption con-

cerning a judicial construction that

had been or might be placed on a stat-

ute after its enactment.

Id. at 1079.

In reversing the seventh circuit, the

Supreme Court rejected this mode of

analysis. After taking note of the lower

court’s conclusion that the 1976 Attor-

ney’s Fees Act did not intend “to create

a remedy that did not previously exist,”

the Court reasoned as follows:

._We find nothing objectionable in

this conclusion, as far as it goes. The

legislative history quoted in the opin-

ion of the Court of Appeals makes

clear that the supporters of the legisla-

tion did not intend it to amend Title

IX to include an express cause of ac-

tion where none existed before. In-

stead, they clearly only meant to pro-

vide attorney’s fees in the event that

that statute as it had always existed

implicitly created a cause of action.

559 F.2d at 1079-1080.

On the other hand, the language

added to § 1988 by the 1976 amend-

ment and the legislative history sur-

rounding it does indicate that many

“members of Congress may have as-

sumed that private suits were autho-

rized under” Title IX, id., at 1079, and,

more importantly, that many members

felt that private enforcement of Title

IX was entirely consistent with, and

even necessary to, the enforcement of

Title IX and the other statutes listed

in § 1988.

Although we cannot accord these re-

marks the weight of contemporary

legislative history, we would be remiss

if we ignored these authoritative ex-

ROGERS v. FRITO-LAY, INC.

pressions concerning the scope and

purpose of Title IX and its place with-

in “the civil rights enforcement

scheme” that successive Congresses

have created over the past 110 years.

99 S.Ct. at 1952 & n.7. This reasoning is

fully applicable to the subsequent legis-

lative consideration of § 503 I have set

out above and particularly to the 1978

Amendments’ provision of attorney’s

fees.

Furthermore, the third circuit, in con-

cluding that an implied remedy existed

under Title VI, reached a conclusion sim-

ilar to that I urge here regarding the

significance of the later addition of at-

torney’s fees provisions covering that

statute. The court stated:

It is also persuasive evidence of in-

tent that Congress has repeatedly en-

acted attorney:’ fee legislation implic-

itly predicated on the fact that Title

VI may be enforced in a private ac-

tion. While this legislation does not

amount to a conclusive demonstration

that a private cause of action exists,

the fact that Congress has explicitly

provided for attorneys’ fees under Ti-

tle VI, coupled with the fact that Con-

gress has had the opportunity to fore-

close a private action but has not done

so, supports our interpretation of legis-

lative intent and our construction of

the legislative scheme envisaged by

the enacting Congress.

NAACP v. Medical Center, Inc., supra,

599 F.2d at 1255. (footnotes omitted).

Finally, it is a well-established princi-

ple that the post-enactment treatment of

a statute by Congress is cogent evidence

of the intent of Congress at the time of

its passage. This principle is _ not

premised on the power of Congress to

repeal or amend the original enactment,

as the majority suggests: rather it de-

ROGERS v. FRITO-LAY, INC.

rives from the understanding that Con-

gress is a creditable interpreter of its

own actions and that courts should pay

heed to its interpretations. See, e. g.,

Chrysler Corp. v. Brown, 441 U.S. 281, 99

S.Ct. 1705, 1716-17, 60 L.Ed.2d 208

(1979); Red Lion Broadcasting Co. v. F.

C. C., 395 U.S. 367, 89 S.Ct. 1794, 1801,

23 L.Ed.2d 371 (1969); Federal Housing

Administration v. The Darlington, Inc.,

358 U.S. 84, 79 S.Ct. 141, 145, 3 L.Ed.2d

182 (1958); Lloyd v. Regional Transpor-

tation Authority, supra, 548 F.2d at 1285

(7th Cir. 1977).

The majority has stated that the stat-

utory silence regarding the existence of

a private remedy “is not given meaning

by voices in the legislative background.”

Maj. Op. at , slip op. at 3237. It is,

however, given meaning by a multitude

of voices in the legislative foreground,

and one of the central questions in this

case is whether we shall listen to them.

For all the reasons I have indicated, I

think we should. I propose that we give

full credit to the good faith and authori-

tative attempts of Congress to make its

32. The majority notes that “ ‘The Committee’

in 1978 or 1979 is not the committee that rec-

ommended the legislation enacted in 1974.”

Maj. Op. at ——-, slip op at 3242, 3243. It is in-

teresting to observe, however, that 11 of the 16

members of the relevant Senate Committee in

1978 were on the committee in 1973 when the

Cong. and Admin.News XCIX with [1973] U.S.

Code Cong. and Admin.News LXXXIV. Fur-

ther, 15 of the 37 members of the relevant

House committee in 1978 were also on the

Committee in 1973. Compare [1978] U.S.Code

Cong. and Admin.News CXVII with [1973]

U.S.Code Cong. and Admin.News XCVIII.

33. See also note 31 supra.

34. I would also reject explicitly three other

arguments raised by appellees to attempt to

refute this evidence of the intent of Congress

to furnish an implied remedy under § 503.

Appellees first argue that we are to read

from the lack of success of the numerous at-

tempts to amend Title VII of the Civil Rights

original intent known in a case such as

this, absent some grounds for believing

it unreasonable to do so. In the case at

hand, we have not merely the individual

statements of one of two members of

Congress, but a series of authoritative

and uncontradicted statements by those

intimately involved with this legislation

from its inception and by committees in

both houses. Furthermore, in the 1978

attorney’s fees provision, we have an en-

actment of positive law premised on

Congress’ “settled understanding,” see

Chrysler Corp. v. Brown, supra, 99 S.Ct.

at 1716-17, that it already created a pri-

vate remedy in § 503. In these circum-

stances, I think it is unreasonable not to

find a congressional intent to create such

a remedy. The majority has cautioned,

paraphrasing Samuel Butler, of the dan-

gers of attempts by mortals to rewrite

history. Their approach to these signifi-

cant and authoritative legislative materi-

als, however, would unfairly relegate

them to the anagrammatical antecedent

of Mr. Butler’s Erewhon.™

Act of 1964, 42 U.S.C.A. § 2000e et seq. (West

1974), to protect the handicapped a congres-

sional intent to deny a private right of action

to beneficiaries of § 503’s

of a statute was evidence of congressional in-

tent to deny a private remedy under another

section which made no such express provision,

the Supreme Court in Cort found “this excur-

sion into the extrapolation of legislative intent

entirely unilluminating,” since nothing in the

legislative history indicated that Congress had

in fact harbored such intentions. See Cort,

supra, 95 S.Ct. at 2090 n. 14.

Here, I find appellees’ tory excur-

3266

Note 34—Continued

much into the inaction and silence of the Con-

gress. Second, § 503 and Title VII have vastly

different coverages, the former reaching only

federal contractors and the latter covering

most private employers. The attempts to

amend Title VII may thus represent attempts

only to establish broader protections against

employment discrimination for handicapped

individuals. Representative Dodd, for exam-

ple, explained in the 1976 Congressional Over-

sight Hearings on the Rehabilitation Act his

motivations for proposing one amendment like

those to which appellees point:

It is my belief that we as a nation have

been grossly negligent in failing to eradicate

the barriers of discrimination which the

mentally and physically handicapped face

both in the public and private sectors of our

society. The Rehabilitation Act of 1973

stands on an affirmative step by the Con-

gress to remove these discriminatory barri-

ers at least from the Federal Government,

the Federal Contractors and recipients of

Federal financial assistance.

However, we must go beyond the protec-

tions afforded the handicapped in the Reha-

bilitation Act and prohibit private discrimi-

nation in the areas of employment, architec-

tural barriers, housing and transportation.

To that end, last year | introduced legislation

to prohibit discrimination against the men-

tally and physically disabled in the House in

employment; and last fall 1 conducted exten-

sive hearings on private employment dis-

crimination to develop a background on the

problems the handicapped face in this area.

Oversight Hearings on Rehabilitation of the

Handicapped Programs Before the Subcommit-

tee on the Handicapped of the Committee on

Labor and Public Welfare, 94th Cong., 2d Sess.

Part 1, 321-22 (1976) (emphasis added). See

also S.Rep.No.96-316, 96th Cong., Ist Sess. 3

(1979).

In sum, I do not believe that the failure of

Congress to amend Title VI] can support the

inferences appellees attempt to draw from it.

Appellees’ second argument, given some

weight by the majority, is based on the judicial

treatment of Executive Order 11,246, 3 C.F.R.

§ 339 (1964-1965 Comp.), as amended by Ex-

ecutive Order 11,315, 3 C.F.R. § 684 (1966-

1970 Comp.). That order requires in § 202

that all government contracts, subject to cer-

tain specified exemptions, contain a provision

in which the contractor agrees that he “will

not discriminate against any employee or ap-

ROGERS v. FRITO-LAY, INC.

plicant for employment because of race, color,

religion, sex, or national origin" and that he

“will take affirmative action to assure that ap-

plicants are employed, and that employees are

treated during employment, without regard to

their race, color, religion, sex or national ori-

gin.”

In several cases in the courts of appeals,

decided before the enactment of § 503, the

courts concluded that no private right of ac-

tion could be inferred from the Executive Or-

der or its predecessors. See, e. g., Farkas v.

Texas Instruments, Inc., 375 F.2d 629 (Sth Cir.

1967), cert. denied, 389 U.S. 977, 88 S.Ct. 480,

19 L.Ed.2d 471; Farmer v. Philadelphia Elec-

tric Co., 329 F.2d 3 (3rd Cir. 1964). Appellees

argue, in effect, that because of these deci-

sions Congress must have known when it en-

acted § 503 that courts would not infer a pri-

vate cause of action under it and thus must

not have intended one.

Although this argument has some initial ap-

peal and receives perhaps some indirect sup-

port from Cannon, | find it ultimately unper-

suasive when placed against Congress’ own

expressions of its purposes in § 503. First,

such support as it receives from Cannon can

only amount to a “presumption” which must

evaporate in face of the legislative history of

§ 503. In Cannon, the Court noted that when

Congress in 1972 explicitly modelled Title IX

on Title VI numerous cases had held that Title

VI created a private right of action. It stated

further that “because of their [the legislators’)

repeated references to Title VI ana its modes

of enforcement, we are especially justified in

presuming both that those representatives

were aware of the prior interpretation of Title

V1 and that that interpretation reflects their

intent with respect to Title 1X." Cannon, su-

pra, 99 S.Ct. at 1958. Here, however, while

one does find some mention of the Executive

Order in the legislative history of § 503, there

is no indication whatever that Congress in-

tended to make its enforcement fully compara-

ble to that which had existed under the Execu-

tive Order. There is, on the other hand, the

evidence discussed above which supports the

existence of a private right of action under

§ 503 and which stresses that administration

of that section is to be comparable to that of

Title VI. Therefore, we should not here in-

dulge in any “presumptions” of legislative in-

tent based on the history of Executive Order

11,246.

Furthermore, both Farkas and Farmer relied

upon the “history of the orders, the rules and

regulations made pursuant to them, and the

ROGERS v. FRITO-LAY, INC.

Cannon guides the application of the

third Cort criterion: “A private remedy

should not be implied if it would frus-

trate the underlying purpose of the leg-

islative scheme. On the other hand,

when that remedy is necessary or at

least helpful to the accomplishment of

the statutory purpose, the Court is decid-

edly receptive to its implication under

the statute.” Cannon, supra, 99 S.Ct. at

1961 (footnote omitted).

The majority sets forth two reasons

for concluding that this factor is an im-

pediment to the inference of a private

right of action under § 503. First, in the

fact that the OFCCP has emphasized

“conciliation and persuasion” and “infor-

mal means” of resolution in its regula-

tions and has failed to provide for a pri-

vate remedy, they find the suggestion

that a private remedy is inconsistent

Note 34—Continued

actual practice in the enforcement of the non-

discrimination provisions.” Farmer, supra,

329 F.2d at 9; Farkas, supra, 375 F.2d at 633.

As the Supreme Court recently pointed out,

the history of the Executive Order is quite

murky; in fact, even the legislative authority

for its issuance is a matter of debate. See

Chrysler Corp. v. Brown, supra, 99 S.Ct. at

1719. Under these circumstances, it is difii-

cult to see how Congress could have intended

a private remedy, and certainly the President

could not himself create a new private judicial

remedy. Regarding § 503, the history is quite

different, and it is on that distinct history we |

should rely.

This distinct history suffices also to distin-

guish this case from those cases in this circuit

which appellees and the majority cite for the

proposition that courts are reluctant to infer

private causes of action under statutes regulat-

ing employee-employer relationships. See, e.

g., Jeter v. St. Regis Paper Co., 507 F.2d 973

(5th Cir. 1975) (no private right of action un-

der Occupational Health and Safety Act, 29

U.S.C. §§ 651-678); Martinez v. Behring’s

Bearings Service, Inc., 501 F.2d 104 (Sth Cir.

1974) (no private right of action for wrongful

death under Fair Labor Standards Act, 29

with the administrative enforcement

mechanism. Second, they argue that

“(t]he provision of an express adminis-

trative remedy for qualified handicapped

persons creates at least some basis to

conclude that a private right of action

would be inconsistent with the purposes

of the legislative scheme,” citing Nation-

al Railroad Passenger Corp. v. National

Association of Railroad Passengers, 414

U.S. 453, 94 S.Ct. 690, 693, 38 L.Ed.2d

646 (1974) (Amtrak) and TAMA, supra,

100 S.Ct. at 247. I think the position

now taken by the OFCCP and the De-

partment of Labor on these questions

and the Supreme Court’s analysis of the

administrative scheme under Title IX,

which bears close functional similarities

to that under § 503,™ provide definitive

rebuttals to these contentions.

First, the OFCCP and the Department

of Labor, charged with the enforcement

of § 503, have taken the clear position

U.S.C. § 215(aX(3)); Flores v. George Braun

Packing Co., 482 F.2d 279 (5th Cir. 1973) (no

implied right against employer for deprivation

of job based on illegal employment of foreign |

nationals under Immigration and Nationality

Act, 8 USC. §§ 1101(aX15\AXii),

1182(a)(14)); Breitweiser v. KMS Industries,

Inc., 467 F.2d 1391 (Sth Cir. 1972), cert. de-

nied, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d

705 (1973) (no implied right of action to bring

a wrongful death action under child labor pro-

visions of Fair Labor Standards Act, 29 U.S.C.

§ 212); United States v. Lovknit Manufactur-

ing Co., 189 F.2d 454 (5th Cir. 1951) (no im-

plied right of action under Walsh-Healey Act,

41 U.S.C. §§ 35-45; dictum).

35. It is no accident that the administrative

schemes are similar. While one statute deals

with contracts and the other with grants, both

express federal policies of nondiscrimination

for recipients of federal funds; both must use

the leverage of the spending power to assure

compliance with these policies. Further, as

pointed out in the preceding section, Congress

explicitly contemplated that the enforcement

schemes would be similar.

3268

that § 503 contains an implied remedy

under the circumstances present in these

cases.* In their own right, the views of

the agency charged with the administra-

tive enforcement of a statute are enti-

tled to great deference from the courts

in their construction of the statute. See,

e. g., Miller v. Youakim, 440 U.S. 125, 99

S.Ct. 957, 969, 59 L.Ed.2d 194 (1979);

Board of Governors of Federal Reserve

System v. First Lincolnwood Corp., 439

U.S. 234, 99 S.Ct. 505, 514, 58 L.Ed.2d

484 (1978); Red Lion Broadcasting Co. v.

F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 1802,

23 L.Ed.2d 371 (1969); Zemel v. Rusk,

381 U.S. 1, 85 S.Ct. 1271, 1278, 14

L.Ed.2d 179 (1965); Udall] v. Tallman,

380 U.S. 1, 85 S.Ct. 792, 801, 13 L.Ed.2d

616 (1965). More specifically, however,

the OFCCP has explicitly addressed and

dismissed the concerns expressed by the

majority. It has stated its belief not

only that “a private right of action

would be consistent with Congress’ in-

tent,” but also that such a private reme-

dy would “greatly assist” its enforce-

ment efforts. It believes this assistance

necessary because it has insufficient re-

sources to investigate and resolve the

growing backlog of § 503 administrative

complaints. See Appendix 413. More-

36. See note 2 supra and Appendix {| 2.

37. There exist other reasons for concluding

that an implied remedy will not interfere with

administrative enforcement. First, officials of

the Department of Labor have indicated on a

number of occasions their preference for, and

intent to shift toward, a compliance review

procedure, and their intent to shift away from

a solely complaint-oriented process, to achieve

a more efficient allocation of their resources.

See Office of Federal Contract Compliance

Programs Task Force, Preliminary Report on

the Revitalization of its Federal Contract Com-

pliance Program 101-104 (1977); 2 Empl.Prac.

Guide (CCH) {5027 (Statement of Weldon

Rougeau); 1978 Hearings, supra, at 258-59,

264, 270, 271 (testimony of Donald Elisburg

and Weldon Rougeau). Thus, one might infer

ROGERS v. FRITO-LAY, INC.

over, the OFCCP has specifically reject-

ed the notion that a private action under

§ 503 would seriously interfere with its

attempts at informal conciliation. It has

indicated its belief that “the prospect of

litigation would have a sobering effect

on the parties concerned, and actually

encourage informal conciliation.” And,

while conceding a private action might

on occasion negatively affect such nego-

tiations, “it has concluded that when all

the relevant factors are weighed, includ-

ing the Department’s limited resources,

the ultimate objective—that of effective-

ly enforcing the statute—will best be

served by permitting a private right of

action.” See Appendix 14.7 In decid-

ing the Title IX issue in Cannon, the

Supreme Court gave great weight to the

analogous contentions advanced there by

HEW regarding the relationship between

a private remedy and the administrative

enforcement scheme. See Cannon, su-

pra, 99 S.Ct. at 1262-63 & nn. 41 & 42.

Under all these circumstances, I can per-

ceive no justification for this court’s re-

fusal to accept, or even acknowledge, the

OFCCP’s position regarding the consist-

ency of an implied remedy with the stat-

utory goals or the administrative en-

forcement scheme.™

that the existence of a private right of action

will leave the OFCCP free to pursue more vig-

orously its preferred mode of enforcement.

Second, one must expect that OFCCP’s com-

plaint process will still remain an important

part of § 503’s enforcement. For some indi-

viduals, an attempt to attain a voluntary reme-

dy will certainly be more attractive than an

adversary proceeding in federal court.

38. It is important to note that Title IX, like

§ 503, contemplates the use of voluntary com-

pliance procedures. Compare 20 U.S.C.A.

§ 1682 (West 1978) and 45 C.F.R. § 86.71

(1978), adopting by reference 45 C.F.R. § 80.8

(1978), with 41 C.F.R. § 60-741.28 (1978). In

Cannon, the Supreme Court did not find that

this direction to seek voluntary compliance

ROGERS v. FRITO-LAY, INC.

Second, the Supreme Court in Cannon

analyzed Title IX’s purposes, administra-

tive scheme, and the consistency of a

private remedy with these, and conclud-

ed that a private remedy “is not only

sensible but is fully consistent with—and

in some cases necessary to—the orderly

enforcement of the statute.” Cannon,

supra, 99 S.Ct. at 1962. (footnote omit-

ted) Because of the close analogies be-

tween Title 1X’s purposes and enforce-

ment scheme and those of § 503, I think

the application of Cannon’s method of

analysis to § 503 compels the same result

here.

One of Congress’ primary purposes in

§ 503 was to protect handicapped indi-

viduals from discrimination in employ-

ment by federal contractors. In analyz-

ing Title IX in Cannon, the Supreme

Court identified “two related, but never-

theless somewhat different, objectives.

First, Congress wanted to avoid the use

of federal resources to support discrimi-

with Title IX rendered a private right of action

inconsistent with its underlying purposes of

prohibiting discrimination.

39. While Congress’ attention was not often fo-

cused directly on § 503 during the considera-

tion of the bills, Senator Dole stated at one

point, “The primary goal of this bill is to assist

handicapped individuals in achieving their full

potential for participation in our society,” and

singled out, in particular, the “antidiscrim-

ination provisions.” 119 Cong.Rec. 24589

(1973). See 118 Cong.Rec. 32310 (1972) (Sen. -

Humphrey); 119 Cong.Rec. 635 (1973) (id.);

119 Cong.Rec. 24566 (1973) (Sen.. Cranston);

119 Cong.Rec. 24587 (1973) (Sen. Taft); 119

Cong.Rec. 24587-8 (1973) (Sen. Williams).

The 1974 amendment to the definition of

“handicapped individual” applicable to § 503

also reflects Congress’ desire to establish

broad protections against discrimination for

handicapped individuals. See note 25 and ac-

companying text supra.

Finally, in a letter to the OFCCP from mem-

bers of the Senate’s Subcommittee on the

Handicapped of the Committee on Labor and

natory practices; second, it wanted to

provide individual citizens effective pro-

tection against those practices.” Can-

non, supra, 99 S.Ct. at 1961. From the

very nature of § 503, I conclude that it

seeks these same objectives, and, as in

Cannon, I do not believe the latter goal

can be labelled “secondary.” In fact, an

examination of the legislative history re-

veals beyond doubt that protection of

handicapped individuals from discrimina-

tion was a primary purpose of the legis-

lation.™ As under Title IX, the remedy

of withdrawal of the federal monies un-

der § 508 may serve the first mentioned

purpose. But, again, as under Title IX,

“{t]hat remedy is, however severe and

often may not provide an appropriate

means of accomplishing the second pur-

pose if merely an isolated violation has

occurred.” Cannon, supra, 99 S.Ct. at

1961. In that situation, a court remedy

for the injured individual would certain-

ly be more appropriate. See id. at 1961-—

62. Furthermore, the simple logic of the

Public Welfare, where the Act and the 1974

Amendments originated, one finds the clearest

expression of congressional intent regarding

§ 503:

The enactment of the Rehabilitation Act of

1973 (P.L. 93-112) was a major step in re-

newing our national commitment to provid-

ing for equal oe opportunity for

handicapped individuals. Section 503 of

that legislation was specifically designed to

assure that the right to decent and fulfilling

jobs for disabled individuals would be en-

forced with respect to all employers holding

federal contracts of $2,500 or more.

S.Rep.No.93—1297, 93rd Cong., 2d Sess., re-

printed in [1974] U.S.Code Cong. & Admin.

News 6373, 6425. See also id. at 6426, 6427.

4@. 41 C.F.R. § 60-741.28 (1978) provides for

pare id. with 45 C.F.R. § 86.71 (1978), adopting

by reference 45 C.F.R. § 80.8(a), (c), (d) (1978).

3270

situation tells us that the OFCCP will be

hesitant to invoke the rather draconian

remedies provided for in itg regulations

in such situations,“ and thus the injured

individual should not be required to dem-

onstrate that a contractor's discriminato-

ry practices are so pervasive as to re-

quire such remedies. See id. at 1962.

“

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