# Petition — MILDRED ESTES BROWN ROGERS v. Frito Lay, Inc. (Nos. 79-1810, 79-1809) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2388%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text 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 a | 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 ii 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. 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 7% 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 7% 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 7 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. (c) In the event of the contractor’s non- 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. 7% *% 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) I 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. 7% *% 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.” A. 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.”’) r= 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). 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. B. 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). 7% 7% 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- 4 7 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 7% 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 7% | 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 Act was passed. Compare [1978] U.S.Code © 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- C *% 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. C. 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. A: ?% 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. “The award of individual relief to a pri- vate litigant who has prosecuted her own suit is not only sensible but is fully con- sistent with—and in some cases even necessary to—the orderly enforcement of the statute.” Id. (footnote omitted) ] think it useful here to set out indi- vidually the additional factors the Su- preme Court relied upon in Cannon in concluding that a private action was con- sistent with Title IX’s purposes and to show how they apply to this case. 1. The Court “has never withheld a private remedy where the statute explic- itly confers a benefit on a class of per- sons and where it does not assure those persons the ability to activate and partic- ipate in the administrative process con- templated by the statute.” Jd. at 1962- 63 n. 41. Unlike § 902 of Title IX, 20 U.S.C.A. § 1682 (West 1978), § 503(b) does allow an individual to activate the administra- 41. This “simple logic’’ also has support in ex- penence. In 1978 hearings on the administra- tion of § 503, Donald Elisburg, Assistant Sec- retary of Labor for Employment Standards, Stated, “Within this last year, we have taken administrative proceedings against the first five contractors that action has ever been brought against under this program.” Hear- ings before the Subcommittee on Select Educa- tion of the Committee on Education and Labor of the House of Representatives, 95th Cong., 2d Sess. 265 (1978). (1978 Hearings) While he added that other such proceedings were. contemplated, it must be noted that these ac- tions are the result of “around 4,500 com- plaints” Jd. at 255. ROGERS v. FRITO-LAY, INC. tive process. Again, however, the ad- ministrative schemes under the statutes are analogous. Both allow an individual to trigger the administrative process; neither allows him to participate in that process. Compare 41 C.F.R. § 741-26 (1978) with 45 C.F.R. § 86.71 (1978), adopting by reference 45 C.F.R. § 80.7 (1978). 2. Even if administrative proceedings “result in a finding of a violation, a re- sulting voluntary compliance agreement need not include relief for the complain- ant.” Cannon, supra, 99 S.Ct. at 1962-63 n. 41. It appears that if the OFCCP finds a violation after investigation and achicves voluntary compliance, at least some “‘cor- rective action” regarding the complaint must be taken, although what action must be taken is not certain. See 41 C.F.R. § 60-741.26(g\2) (1978). The OFCCP has full authority to determine what “corrective action” will be re- quired. The complainant has no control over the disposition of his case even when his perception of his own best in- terest clashes with the perception of the OFCCP.* Furthermore, if the voluntary compli- ance mechanism fails to provide relief 42. During the 1978 Hearings on the Rehabilita- tion Act, Guy Guber, an employment rights specialist in the Job Development Program of the Center for Independent Living. cited as one of the “major problems" with the § 503 en- forcement process the limited participation al- lowed to complainants. See 1978 Hearings. supra, at 191. 43. Guy Guber, see note 42, supra, pointed out in the 1978 Hearings, “The alleged best inter- ests of the complainant which are represented by OFCCP staff during informal negotiations with respondents do not always coincide with what a complainant perceives as his own best interest.” 1°78 Hearings, supra, at 192. r ROGERS v. FRITO-LAY, INC. for the individual complainant, the regu- lations make no express provision for ob- taining individual relief. See 41 C.F-.R. § 60—471.28 (1978). Thus, in such cases, an individual right of action is necessary to fulfillment of the second statutory purpose. 3. “[{T]Jhe agency may simply decide not to investigate—a decision that often will be based on a lack of enforcement resources, rather than on any conclusion on the merits of the complaint.” Can- non, supra, 99 S.Ct. 1962—63 n. 41. The OFCCP regulations similarly leave it discretion to decide not to investigate. See 41 C.F.R. § 60-741.26(g)1) (1978). In fact, the OFCCP itself has pointed out the problems created by this discre- tion: “The net effect of such discretion is that there is no assurance that com [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2388%3A1. Public record. Not legal advice.