Petition — Meyerson v. Arizona

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———

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

LEE MEYERSON,

Petitioner,

Vv.

THE STATE OF ARIZONA, ARIZONA BOARD OF REGENTS,

RALPH M. BILBY, RUDY E. CAMPBELL, ESTHER N.

CAPIN, EARL H. CARROLL, THOMAS CHANDLER, WIL-

LIAM G. PAYNE, WILLIAM P. REILLY, Tio A. TACHIAS,

RENEE MARLER, JOHN SCHWADA, PAIGE E. MULHOL-

LAN, KARL H. DANNENFELDT, JOYCE FOSTER, GUIDO

WEIGAND, AUSTIN JONES, LEONARD D. GOODSTEIN,

PETER KILLEEN, JOHN DOES I THRU V, and JANE DOES

I THRU V,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION OF Saree ae aa

TREON, WARNICKE & ROUSE, P.A.

919 North First Street

Phoenix, Arizona 85004

(602) 257-0747

Attorneys for Petitioner

, NE

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

a PRESENTED

I. A. Whether An Otherwise Qualified Handicapped

Person Has Standing To Maintain An Employ-

ment Discrimination Action Under 29 U.S.C.

§ 794 Even If A Primary Purpose Of The Fed-

eral Financial Assistance Received By The Dis-

criminating Entity Is Not Employment.

1. Whether this Court should consolidate its

decision on this petition with its considera-

tion of the LeStrange v. Consolidated Rail

Corp. case scheduled for hearing in the Oc-

tober, 1983, term.

2. Assuming that standing under 29 U.S.C.

§ 794 requires a showing that a primary

purpose of the federal assistance is to pro-

vide employment, whether an otherwise qual-

ified handicapped college professor may bring

a private action for employment discrimina-

tion where the federal assistance in question

was grants used to support professors in

research projects.

B. Whether An Otherwise Qualified Handicapped

Professor Teaching At A University Which Re-

ceives Millions Of Dollars Annually In Federal

Financial Assistance Has Standing Under 29

U.S.C. § 794 To Maintain An Employment Dis-

crimination Action Without Respect To Which

Particular Administrative Segments Of The

University Make Use Of The Assistance.

II. Whether A Private Right of Action Exists Under

29 U.S.C § 793.

III. Whether A Handicapped Person Has a Private Right

Of Action Under 29 U.S.C. § 793 Pursuant To 42

U.S.C. § 1983

(i)

LIST OF PARTIES

The following are all of the parties named in the

action: Professor Lee Meyerson (Petitioner) and The

State of Arizona, Arizona Board of Regents, Ralph M.

Bilby, Rudy E. Campbell, Esther N. Capin, Earl H. Car-

roll, Thomas Chandler, William G. Payne, William P.

Reilly, Tio A. Tachias, Renee Marler, John Schwada,

Paige E. Mulhollan, Karl H. Dannenfeldt, Joyce Foster,

Guido Weigand, Austin Jones, Leonard D. Goodstein,

Peter Killeen, John Does I thru V, and Jane Does I

thru V (Respondents).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .0o.cccccc-scceccssssseenseee

LIST OF PARTIES .ccccscccsscccsscccsccesssscssscsssesessscnnseece i

TABLE OF CONTENTS .cccsscccssccssssssescseeeensee i ae

TABLE OF AUTHORITIES .--ssccsscossccssscsesnsseenceseees v

DECISIONS BELOW 20.-ccccccccccsece, ceceeessseee shee 1

JURISDICTION OF THE SUPREME COUR ............ 2

TEXT OF STATUTES RELIED UPON 2..--eccoecoo- 2

STATEMENT OF THE CASE .ooooccccccssccccscsseescseveee 4

JURISDICTION OF THE COURTS BELOW............... 7

REASONS FOR GRANTING THE WRIT oo..--e--.-- 7

I. The Ninth Circuit Decision That Petitioner Has

No Standing Under § 504 Of The Rehabilitation

Act Is In Conflict With Decisions Of Other Cir-

cuit Courts On The Same Question And, In Ad-

dition, Poses Important Questions Of Federal

Law Which Should Be Settled By This Court ...... 7

A. There Is An Irreconcilable Split Between

The Circuit Courts On The Question Of

Whether There Is A Requirement Under

§504 That A “Primary Objective’ Of The

Federal Assistance Be Employment ............ 7

1. This Court may wish to hold this petition

in abeyance until this Court reaches its

decision on the merits of the LeStrange

case and, thereafter, dispose of argument

1.A. of this petition in summary fashion

in accordance with LeStrange..... __.... 12

(iii)

TABLE OF CONTENTS—Continued

Page

2. This Court may resolve petitioner’s claim

in argument I.A. of this petition by ruling

that a primary purpose of federal research

grants is to provide employment ............ 12

B. This Court Should Resolve The Split Among

The Circuit Courts On The Issue Of The

Definition Of “Program or Activity” In 29

p17 RE fp Aten Sen Cees SORA Mean AE Aline 14

II. The Ninth Circuit’s Decision That There Is No

Private Cause Of Action Under § 503 Of The

Rehabilitation Act Raises An Important Ques-

tion Of Federal Law That Should Be Settled By

I I fo ono das cond Savcsticttgnccnnedsdeeataebaaceeenneienterentns 15

III. The Ninth Circuit’s Decision That Petitioner

May Not Assert His § 503 Rights Under 42

U.S.C. § 1983 Raises An Important Question

Of Federal Law That Should Be Settled By

ok MEN TMRT TREN E DN WRAL OMI MRT Res SRR ERE Pe 19

CONCLUSION ...........:........... shiccalabiceniroe eataiec bmn seatcab ie lsieiioiedes 21

APPENDIX

Opinion of the Ninth Circuit —.........0.00000000.. la

Opinion of the District Court (Feb. 1981) ............ 13a

Opinion of the District Court (Oct. 1981) —.......... 24a

Judgment of the District Court —..........0000000........... 28a

Order Denying Rehearing ............0..00000..... . 29a

nt lca 30a

I es ED iienieseesirnctticcesiearenicetiecestasinatinnsionns 30a

TABLE OF AUTHORITIES

Statutes Page

EE SS SRE ae ne ea 13

RSE Nar on ce 2

ESS ar SE ne 7

29 U.S.C. § 793 (§ 503 of the Rehabilitation Act of

SES RE PAAR E eit le SOO oe passim

29 U.S.C. § 794 (§ 504 of the Rehabilitation Act of

ea ea iieemuinnaubindensonunbvons passim

29 U.S.C. § 794a (§ 505 of the Rehabilitation Act

ie ARATE ee at Eee ss 9, 10

oa RR apace AL ec 6, 7

REE RG RS NR A DO passim

42 U.S.C. § 2000d-3 (§ 604 of Title VI) ................. 9,13

Cases

Beam v. Sun Shipbuilding & Dry Dock Co., 679

a s.r 16

Brown v. Americin Home Products Corp., 520 F.

Sue, taee (2G. Bem., BOGe) ....................0......... 16

Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981)........ 8,15

California Paralyzed Veterans Ass’n v. F.C.C., 496

F. Supp. 125 (C.D, Cal., 1980) ............................ 16,17

Carmi v. Metropolitan St. Louis Sewer Dist., 620

F.2d 672 (8th Cir. 1980), cert. denied, 449 U.S.

sou tnamtassereninevinecounes 8, 10

Chaplin v. Consol. Edison Co. of N.Y., Inc., 482

F. Supp. 1165 (S.D. N.Y., 1980) 20000... 16, 18

Clarke v. FELEC Services, Inc., 489 F. Supp. 165

(D.C. Alaska, 1980) .................... ee

Cort v. Ash, 442 U.S. 66 (1975) ve 17

Davis v. Modine Mfg. Co., 526 F. Supp. 943 (D.C.

| ee . 16,17

Davis v. United Airlines, 25 F.E.P. Cases 565, (E. D.

Ss MII cacttsn ne carishiceestedinonintabonniiinas 16, 17

Doe v. New York ‘University, 666 F.2d 761 (2nd

Cir. 1961) ........ .

Dopico v. Goldschmidt, 687 F.2d 644 (2nd Cir.

REELS SIE SEE SSA CO x

TABLE OF AUTHORITIES—Continued

Page

Doyle v. University of Alabama in Birmingham,

680 F.2d 1328 (11th Cir. 1982) ............................. 14, 15

Drennon v. Philadelphia General Hospital, 428

oe eR SR.) | cn 16,17

Duran v. City of Tampa, 430 F. Supp. 75 (M.D.

Ne Te cceeepeetane 16

Fisher v. City of Tucson, 663 F.2d 861 (9th Cir.

1981), cert. denied, 103 S. Ct. 178 .................... 15, 16, 20

Grove City College v. Bell, 687 F.2d 684 (3rd Cir.

1982), cert. granted, 103 S. Ct. 1181 .................... 14, 15

Guertin v. Hackerman, 25 EPD © 31,604, at 19,503

I ce tteersncses me 13

Hart v. County of Alameda, 485 F. Supp. 66 (N.D.

tiles IEA ce 16,17

Hoopes v. Equifaz, Inc., 611 F.2d 134 (6th Cir.

ids AAP 16

Jones v. Metropolitan Atlanta Rapid Transit Au-

thority, 681 F.2d 1376 (11th Cir. 1982), cert.

SRE aE scuekaited 8,9, 10,11

LeStrange v. Consolidated Rail Corp., 687 F.2d

767 (3rd Cir. 1982), cert. granted, 103 S. Ct.

ho Aone ee ee eee 8, 9, 10, 11, 12, 14, 15

Maine v. Thiboutot, 448 U.S. 1 (1980) _........... Sica

Meyerson v. State of Arizona, 507 F. Supp. 859

A eg | a RSE EI a ee a ae 1,14

Meyerson v. State of Arizona, 526 F. Supp. 129

ES ORES el 1

Meyerson v. State of Arizona, 709 F.2d 1235 (9th

a ciceresie hd AI ALTOS 1, 20

Middlesex Cty. Sewerage Auth. v. Sea Clamers,

I i cimlinsmeunbnns 19, 21

North Haven Board of Education v. Bell, 456 U.S.

I ie Gioia chcckaeschnctienianapisecnacdennnce Ap:-5 ent SURO 8,18

Pennhurst State School v. Halderman, 451 U.S. 1

7 ES ESR a 19, 21

Puskin v. Regents of University of Colorado, 658

i pe Be 5 Ree 8

Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.

1980), cert. denied, 449 U.S. 889 _............. 15, 16, 18, 20

vii

TABLE OF AUTHORITIES—Continued

Page

Sabol v. Bd. of Ed. of Tp. of Willingboro Cty., 510

eee. Ce OCR. ei) 13

Scanlon v. Atascadero State Hospital, 677 F.2d

1271 (9th Cir. 1982), cert. pending ...................... 7,10

Simpson v. Reynolds Metals Co. Inc., 629 F.2d

ee ee tO a eee 16

Trageser v. Libbie Rehab. Center, Inc., 590 F.2d 87

(4th Cir. 1978), cert. denied, 442 U.S. 947 ...... 7, 8,9, 10

United States v. Cabrini Medical Ctr., 639 F.2d 908

ge | | ee ere ee ee es 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

LEE MEYERSON,

Petitioner,

THE STATE OF ARIZONA, ARIZONA BOARD OF REGENTS,

RALPH M. BILBy, RuDY E. CAMPBELL, ESTHER N.

CAPIN, EARL H. CARROLL, THOMAS CHANDLER, WIL-

LIAM G. PAYNE, WILLIAM P. REILLY, Tio A. TACHIAS,

RENEE MARLER, JOHN SCHWADA, PAIGE E. MULHOL-

LAN, KARL H. DANNENFELDT, JOYCE FOSTER, GUIDO

WEIGAND, AUSTIN JONES, LEONARD D. GOODSTEIN,

PETER KILLEEN, JOHN Does I THRU V, and JANE DOES

I THRU V,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DECISIONS BELOW

The decisions of the district court for the district of

Arizona are reported at 507 F. Supp. 859 (D.C. Ariz.

1981) and 526 F. Supp. 129 (D.C. Ariz. 1981). The de-

cision of the Ninth Circuit is reported at 709 F.2d 1235

(9th Cir. 1983). All three decisions are captioned Meyer-

son v. State of Arizona.

JURISDICTION OF THE SUPREME COURT

The opinion of the Ninth Circuit was filed on May 9,

1983; the Ninth Circuit's decision on petitioner’s motion

for rehearing was filed on July 22, 1983. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

TEXT OF STATUTES RELIED UPON

I. 29 U.S.C. $793 ($503 of the Rehabilitation Act of

1973) in pertinent part provides:

Employment under Federal contracts

Amount of contracts or subcuntracts; provision

for employment and advancement of qualified

handicapped individuals ; regulations

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

by any Federal department or agency for the pro-

curement of personal property and nonpersonal

services (including construction) for the United

States shall contain a provision requiring that, in

employing persons to carry out such contract the

party contrac.ing with the United States shall take

affirmative action to employ and advance in em-

ployment qualified handicapped individuals as de-

fined 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 personal property and nonpersonal services (in-

cluding construction) for the United States.

Administrative enforcement; complaints; investi-

gations; departmental action

(b) If any handicapped individual believes any

contractor has failed or refuses to comply with the

provisions of his contract with the United States,

relating to employment of handicapped individuals,

such individual may file a complaint with the De-

partment of Labor. The Department shall promptly

investigate such complaint and shall take such ac-

tion thereon as the facts and circumstances warrant,

consistent with the terms of such contract and the

laws and regulations applicable thereto.'

II. 29 U.S.C. § 794 ($ 504 of the Rehabilitation Act of

1973) in pertinent part provides:

Nondiscrimination under federal grants and pro-

grams; promulgation of rules and regulations

No otherwise qualified handicapped individual in

the United States, as defined in section 706(7) of

this title, shall, solely by reason of his handicap, be

excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial

assistance or under any program or activity con-

ducted by any Executive agency or by the United

States Postal Service.

III. 42 U.S.C. § 1983 in pertinent part provides:

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for re-

dress.

1 Subsection c, which is not pertinent to this case, deals with

waiver of § 793 requirements in instances of special national inter-

est by the President.

STATEMENT OF THE CASE

I. Material Facts

A. Handicap

Petitioner is essentially deaf and depends upon lipread-

ing skills for oral communications. Also, he walks with

a limp because of a hip ailment which is the result of a

childhood disease. (Complaint, clerk’s docket +1; ex-

cerpt of record p. 3.)

B. Qualification

Petitioner is a full professor in Arizona State Uni-

versity’s Department of Psychology, College of Liberal

Arts. (Complaint, clerk’s docket +1; excerpt of record

p. 1.) Petitioner’s qualifications have not been challenged

by respondents. (Respondents raised no question of peti-

tioner’s qualifications in any pleading below: see their

motion, clerk’s docket #8, excerpt of record pp. 27-33;

reply, clerk’s docket #15, excerpt of record pp. 115-127;

response, clerk’s docket #26, excerpt of record pp. 153-

165; reply, clerk’s docket +29, pp. 175-186; answer,

clerk’s docket #30, pp. 190-193.)

C. Discrimination

The Department of Labor found that respondent Ari-

zona State University (ASU) discriminated against pe-

titioner. (See the discussion in section D, below.) These

discriminations have been multi-fold, including depriva-

tion of adequate work facilities, unfair salary practices,

and denial of opportunities for advancement. ( Response,

clerk’s docket #14, Exh. A attached thereto; excerpt of

record pp. 8-11.) For the purposes of this petition, it is

sufficient to say that petitioner has been discriminatorily

excluded from participation in and denied the benefits of

research grants funded by federal assistance. (Response,

clerk’s docket #23 and Affidavit attached thereto; ex-

cerpt of record pp. 149 and 151.) The other discrimina-

tions become relevant on remand for trial.

D. Exhaustion of Administrative Remedies

The Department of Labor found that ASU “has sys-

tematically deprived Professor Meyerson of the oppor-

tunity to contribute and earn and has therefore violated

its obligations under the affirmative action provisions.”

(Complaint, clerk's docket #1, Exh. B attached thereto;

excerpt of record p. 15.) Although petitioner made every

reasonable effort to obtain satisfaction through adminis-

trative remedies before filing his suit, he has been

thwarted every time and found administrative remedies

ineffective despite a finding of discrimination by the De-

partment of Labor. Respondents chose neither to deny

nor remedy the discriminations. Rather, they chose to

dispute the Department of Labor’s powers to enforce the

law through the same jurisdictional attacks raised by

them in the courts below. Thus, respondents are not

being forced to address, much less remedy, the discrimi-

nation. In view of the fact that respondents have re-

fused to recognize the Department’s decision, and in

view of the Department’s limited powers and resources

for enforcement, petitioner is without an effective remedy

for this wrong. (Response, clerk’s docket +14 and Affi-

davit attached thereto; excerpt of record pp. 41-42 and

68. )

E. Federal Funding of ASU

Petitioner demonstrated to the district court and cir-

cuit court the vast amounts of federal financial assist-

ance, including research grants, received annually by

ASU, portions of which were used by the Department

of Psychology and psychology professors for research

grants. (Motion, clerk’s docket #23; excerpt of record

pp. 148-145.) For example, petitioner showed that the

amount of federal assistance received by ASU has not

been less than $5,000,000 annually since 1970 and exceeded

$15,000,000 for each of the 1978-1979 and 1979-1980

school years. (Motion, clerk’s docket 323; excerpt of

record p. 143.) Also, petitioner pointed out that the De-

partment of Psychology received research grants totaling

at least $830,400 between 1976 and 1980. (Motion,

clerk’s docket +23; excerpt of record p. 144.)

IL. Procedural History

Petitioner brought an action against respondents

charging that he had been discriminated against on the

basis of handicap. (Complaint, clerk’s docket +1; excerpt

of record pp. 1-7.) His complaint was brought under the

following federal statutes: 29 U.S.C. § 793, 29 U.S.C.

$ 794, 31 U.S.C. § 1242, and 42 U.S.C. § 1983.

Respondents filed a motion for summary judgment.

(Motion, clerk’s docket +8; excerpt of record pp. 27-

33.) The district court for the district of Arizona

granted the summary judgment with respect to the 29

U.S.C. $793 claim, dismissed without prejudice the 31

U.S.C. § 1242 claim, and denied summary judgment with-

out prejudice on the 29 U.S.C. § 794 and 42 U.S.C. § 1983

claims. (507 F. Supp. 859; Appendix pp. 13a-23a.)

Thereafter, Petitioner conducted some discovery re-

lating to receipt of federal financial assistance by ASU.

(Notice, clerk’s docket +11, 12, and 13.) He then filed

a motion for reconsideration of the district court’s rul-

ing with respect to 42 U.S.C. § 1983 and for partial

summary judgment on the threshold issues of 29 U.S.C.

$ 794.* (Motion, clerk’s docket +23; excerpt of record

pp. 138-150.) Respondents filed a cross-motion for sum-

mary judgment. (Response and cross-motion, clerk’s doc-

ket +26; excerpt of record pp. 153-165.) The district

court granted respondents’ crogs-motion for summary

judgment. (526 F. Supp. 129; Appendix pp. 24a-27a.)

On appeal, the Ninth Circuit affirmed. (709 F.2d

1235; Appendix pp. la-12a.)

2 Petitioner elected not to pursue further his claim under 31

U.S.C. § 1242.

’The Ninth Circuit mistakenly assumed that petitioner aban-

doned his claim of a private right of action pursuant to 29 U.S.C.

JURISDICTION OF THE COURTS BELOW

L District Court

The district court had jurisdiction over this matter be-

cause the action was brought under the following fed-

eral statutes: 29 U.S.C. $ 793, 29 U.S.C. § 794, 31 U.S.C.

$ 1242, and 42 U.S.C. § 1983.

IL Ninth Circuit

The Ninth Circuit had jurisdiction over the appeal

pursuant to 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

I. The Ninth Circuit Decision That Petitioner Has No

Standing Under § 504 Of The Rehabilitation Act Is In

Conflict With Decisions Of Other Circuit Courts On

The Same Question And, In Addition, Poses Important

Questions Of Federal Law Which Should Be Settled

By This Court.

A. There Is An Irreconcilable Split Between The Cir-

cuit Courts On The Question Of Whether There Is

A Requirement Under § 594 That A “Primary Ob-

jective” Of The Federal Assistance Be Employment.

This petition should be granted to resolve an irrecon-

cilable split among the circuit courts on the interpreta-

tion of $504, 29 U.S.C. § 794. The Ninth Circuit re-

jected petitioner’s claim under § 504 of the Rehabilita-

tion Act on the basis that private action under that

section cannot be maintained unless a primary objective

of the federal financial assistance is to provide employ-

ment. The Ninth Circuit relied upon its recent opinion

Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (9th

Cir. 1982), cert. pending. Scanlon was based on Tra-

§ 794 on the basis of 42 U.S.C. § 1983. For the purposes of this

petition, that mistaken assuraption need not be challenged because

respondents did not question whether a private right of action

exists under 29 U.S.C. § 794 in the proceedings before the Ninth

Circuit.

geser v. Libhie Rehab. Center, Inc., 590 F.2d 87 (4th Cir.

1978), cert. denied, 442 U.S. 947." The decisions of the

Ninth and Fourth Circuits, however, are in direct con-

flict with those of the Third and Eleventh Circuits.

The Third Circuit has ruled that § 504 prohibits dis-

crimination against the handicapped in employment by

federal grantees without respect to the primary objec-

tives of the financial assistance. LeStrange v. Con-

solidated Rail Corp., 687 F.2d 767 (8rd Cir. 1982), cert.

granted, 103 S. Ct. 1765." In reaching that result, the

Third Circuit relied heavily on this Court’s decision in a

Title IX case, North Haven Board of Education v. Bell,

456 U.S. 512 (1982), where language very similar to

that of § 504 was construed.

The Eleventh Circuit has also held that a plaintiff in

an action brought under § 504 need not establish that the

employer received federal aid for the primary purpose

of providing employment in order to have standing. In-

stead, the Eleventh Circuit held that a plaintiff need

show only that the employer received federa! financial

assistance and that the plaintiff was an intended bene-

ficiary of the assistance. Jones v. Metropolitan Atlanta

Rapid Transit Authority, 681 F.2d 1376 (11th Cir.

1982), cert. pending.”

4 Other circuits have followed Trageser: United States v. Cabrini

Medical Ctr., 639 F.2d 908 (2d Cir. 1981); Carmi v. Metropolitan

St. Louis Sewer Dist., 620 F.2d 672 (8th Cir. 1980), cert. denied,

449 U.S. 892.

5 LeStrange has been accepted by this Court for review and is

scheduled for hearing in October, 1983. Petitioner has filed a motion

requesting that this Court consider his case with the LeStrange

case.

6A number of circuit courts have addressed standing under

$ 794 without including in their discussion any requirement of the

“primary objective test.” See, for example, Brown v. Sibley, 650

F.2d 760 (5th Cir. 1981); Dopico v. Goldschmidt, 687 F.2d 644

(2nd Cir. 1982); Puskin v. Regents of University of Colorado, 658

F.2d 1372 (10th Cir. 1981); Doe v. New York University, 666 F.2d

761 (2nd Cir. 1981).

The difference between the results reached by the

circuit courts cannot be explained on the peculiarities of

the individual cases. As shown below, the courts have

looked at the same factors and reached opposite conclu-

sions of law.

In Trageser, the Fourth Circuit examined the language

of § 505(a) (2) of the 1978 Rehabilitation Act Amend-

ments in reaching its decision to limit employment cov-

erage under § 504. Section 505/a) (2), 29 U.S.C. § 794a,

provides as follows:

The remedies, procedures, and rights set forth in

title VI of the Civil Rights Act of 1964... shall

be available to any person aggrieved by an act or

failure to act by any recipient of Federal assistance.

The Fourth Circuit concluded that the above-quoted lan-

guage incorporated into § 505/a)(2) the provisions of

$604 of Title VI, 42 U.S.C. § 2000d-3, which states:

Nothing contained in this subchapter shall be con-

strued to authorize action under this subchapter by

any department or agency with respect to any em-

ployment practice of any employer... except where

a primary objective of the Federal financial as-

sistance is to provide employment.*

590 F.2d at 89. The Trageser court thereby imposed

*604’s limitation on actions by federal departments

and agencies on individuals. A result of this interpre-

tation has been to severely limit the effectiveness of

$ 504’s prohibition against discrimination.

The LeStrange and Jones opinions (as well as the dis-

senting opinion of Circuit Judge Ferguson in Scanlon)

7$505(a)(2) is set forth in its entirety in the Appendix at

p. 30a.

* $604 is set forth in its entirety in the Appendix at p. 30a.

Emphasis in the quotation above has been supplied by petitioner.

disapprove the “reasoning” of the Fourth Circuit in

Trageser and conciude that Congress intended that fed-

eral money should not be used to support those who en-

gage in employment discrimination. In LeStrange the

Third Circuit rather passionately commented:

Under the holding of the district court, Con-

rail is prohibited from discriminating against handi-

capped passengers, but is free to discriminate against

the handicapped in employment. Such an analysis of

$ 504, unless supported by the words of the relevant

statutes or their legislative history, is absurd.

Thus far, the handicapped have not been extended

the broad protections against discrimination ex-

tended women and members of other minority

groups. Federal law protects the handicapped only

if employed by the federal government, or federal

contractors or grantees. To eliminate protection

against discrimination in employment by federal

grantees would eliminate a substantial portion of the

smal! amount of protection afforded the handicapped.

What is a commonsensicle approach to Title VI,

thus, becomes a devastating blow within the con-

text of the Rehabilitation Act, ‘In the context of

‘$504 of the Rehabilitation Act, applied Trageser-

style, $604 operates as a blunder buss.’ Scanlon,

supra at 1277 (Ferguson, J., dissenting). See also,

Carmi, supra at 679 (MeMillian, J., concurring).

Neither the words of the statutes, nor legislative

histories, dictate such a result.

687 F.2d at 776.

Similarly, the Eleventh Circuit in Jones rejected the

imposition of the limits of § 604:

Thus Section 505 was intended to encompass only

those remedies, procedures and rights of Title VI

found in the HEW regulations. Since the HEW

regulations did not utilize or mention the restric-

tions found in Section 604 of Title VI, Congress ob-

viously did not intend Section 505 to incorporate

such a restriction into the Rehabilitation Act.

Jones, 681 F.2d at 1382. See also LeStrange, 687 F.2d

at 774-76.

Petitioner believes it may be of interest to this

Court that the United States government, through the

Solicitor General, has taken a position on this issue in

petitioner’s favor. See the amicus brief of the gov-

ernment filed in the LeStrange case, p. 2 thereof. Like-

wise, Senators Cranston, Dole, Hatch, Kennedy, Pell,

Stafford, and Weicker, and Representatives Biaggi, Ed-

wards, Ford, Jeffords, Miller, Murphy, and Williams

have filed an amici brief in LeStrange which argues in

petitioner’s favor on this issue. Further, at least 26

federal agencies have interpreted $504 as prohibiting

discrimination by recipients of federal assistance even

if none of the primary purposes of the funding is to

provide employment.’

Thus, there is an irreconcilable conflict between the cir-

cuit courts on the issue whether, in order to pursue a

private cause of action under § 504, there must be a

showing that the primary objective of federal! financial

assistance was to provide employment. For the fore-

*5 C.F.R. 900.706 (OPM); 7 C.F.R. 15b.11-15b.-15 (DOA); 10

C.F.R. 4.122-4.125 (NRC); 10 C.F.R. 1040.66-1040.69 (DOE); 13

C.F.R. 113.8(c) (SBA); 14 C.F.R. 1251.200-1251.203 (NASA); 15

C.F.R. 8b.11-8b.15 (Dept. of Commerce); 18 C.F.R. 1307.5 (TVA);

22 C.F.R. 142.11-142.14 (Dept. of State); 22 C.F.R. 217.11-217.14

(AID); 48 Fed. Reg. 20652-20653 (1983) (to be codified at 24

C.F.R. 8.10-8.18) (HUD); 28 C.F.R. 42.510-42.513 (DOJ); 29

C.F.R. 32.12-32.17 (DOL); 31 C.F.R. 51.55 (Dept. of Treasury);

82 C.F.R. 56.8(b) (DOD); 34 C.F.R. 104.11-104.14 (Dept. of Ed.) ;

88 C.F.R. 18.411-18.414 (VA); 41 C.F.R. 101-8.305 to 101-8.308

(GSA); 43 C.F.R. 17.210-17.218 (DOI); 45 C.F.R. 84.11-84.14

(HHS); 45 C.F.R. 605.11-605.14 (NSF); 45 C.F.R. 1151.31-1151.34

(NEA); 45 C.F.R. 1170.21-1170.24 (NEH); 45 C.F.R. 1232.9-

1232.12 (ACTION); 45 C.F.R. 1624.6 (Legal Services Corp.); 49

C.F.R. 27.31-27.37 (DOT). See the amicus brief of the United

States in LeStrange, p. 2 thereof.

going reasons, this petition for a writ of certiorari should

be granted in order to resolve the conflict between the

circuits.

1. This Court may wish to hold this petition in

abeyance until this Court reaches its decision on

the merits of the LeStrange case and, thereafter,

dispose of argument I.A. of this petition in sum-

mary fashion in accordance with LeStrange.

As pointed out above, this Court has accepted Le-

Strange for review. It may be appropriate, then, for this

Court to postpone its decision on argument I.A. of this

petition until a decision on the merits of LeStrange is

reached. Thereafter, this Court may, in accordance

with Rule 23.1, dispose of argument I.A. of this peti-

tion in summary fashion in accordance with the result in

LeStrange.

There is a crucial reason for this Court to consider

postponing its decision on this petition until deciding

the LeStrange case. If this Court were to deny this peti-

tion and subsequently decide the LeStrange case in a

way favorable to petitioner's position herein, petitioner’s

rights would be foreclosed even though this case arose

after LeStrange. The paradox of such a result is ap-

parent.

2. This Court may resolve petitioner’s claim in argu-

ment 1.A. of this petition by ruling the. a primary

purpose of federal research grants is to provide

employment,

Petitioner argued to the Ninth Circuit that, even if

the ‘primary purpose test” were a required element of

standing under § 504, he meets the test because a “pri-

mary purpose” of the research grants from which he

has been excluded is to provide employment.

There is a difference of opinion on this subject among

federal courts. One district court has held as a matter

of law that

[A] primary objective of the federal funding re-

ceived by Rice University was to provide employ-

ment to faculty members, specifically faculty mem-

bers doing research in the Physics Department. A

government grant to promote scientific research in-

cludes as a primary objective the employment of

scientists who will dedicate their time, learning, and

skill to an approved research effort.

Guertin v. Hackerman, 25 EPD { 31,604, at 19,503 (S.D.

Texas, 1981).

The Ninth Circuit, however, affirmed the district court

which had relied on Sabol v. Bd. of Ed. of Tp. of Will-

ingboro Cty., 510 F.Supp. 892 (D.C. N.J. 1981), in hold-

ing that research grants are not primarily intended to

provide employment. The Sabol case is factually dis-

tinguishable from this case because there the federal as-

sistance was given directly to handicapped students under

the Education for All Handicapped Children Act, 20

U.S.C. £1405. The plaintiff in Sabol did not dispute the

fact that the purpose of those funds was to educate

children in special education classes. Here, as in Guertin,

the money comes to and is dispensed by ASU and is used

to support professors in research activities. Thus, peti-

tioner respectfully submits that the district court placed

mistaken reliance on the Sabo! case, and that this in-

fluenced the Ninth Circuit’s decision.

Petitioner wishes to bring to this Court’s attention the

fact that the pivotal language of $604 is “a primary

purpose.” The term is not the primary purpose. Thus, it

is possible to have more than one primary objective for

the federal assistance. While the Ninth Circuit recog-

nized the possibility that more than one primary purpose

might exist, it concluded that employment was but an in-

significant aspect of research grants. It is this conclu-

sion that creates the direct conflict between the district

court for the southern district of Texas and the Ninth

Circuit.

Thus, there is a question of federal law which should

be settled by this Court. If this Court finds that research

grants have as a primary purpose the providing of em-

ployment, then it need not reach argument I.A., above,

because petitioner will show himself to have been ex-

cluded from the benefit of funds, a primary purpose of

which was to provide employment.

B. This Court Should Resolve The Split Among The

Circuit Courts On The Issue Of The Definition Of

“Program or Activity” In 29 U.S.C. § 794.

In addition to the split among the circuit courts on the

“primary objective test’”’ issue, there is also a split among

the circuit courts on the definition of “program or ac-

tivity” as used in § 504. Petitioner acknowledges that the

Ninth Circuit expressly declined to address this issue.

(See 709 F.2d at 1237, fn.1; Appendix p. 5a) Petitioner

wishes to bring this matter to this Court’s attention,

however, because this Court will be addressing this same

issue in its decisions on two cases, both of which peti-

tioner understands are scheduled for review this term.

LeStrange and Grove City College v. Bell, 687 F.2d 684

(8rd Cir. 1982), cert. granted, 103 S. Ct. 1181 (constru-

ing 20 U.S.C. § 1681, Title IX). Both are Third Cir-

cuit decisions which stand for the proposition that if any

portion of an educational institution receives federal

moneys, then the entire institution is bound by federal

nondiscrimination laws. Both cases have directly raised

for this Court’s consideration the question of the defini-

tion of “program or activity.”

One circuit court holding a contrary view is the Elev-

enth Circuit. Doyle v. University of Alabama in Bir-

mingham, 680 F.2d 1323 (11th Cir. 1982). That opinion

states that the mere fact that a university receives fed-

eral financial assistance is insufficient to subject the en-

tire university to the requirements of § 504. This view

interprets § 504 as “program-specific.” (The first district

court opinion in this case, 507 F. Supp. 859, beginning at

page 13a of the Appendix, takes the same view as the

Doyle opinion,) The Fifth Circuit has reached the same

result as the Doyle case in Brown v. Sibley, above.

Thus, there is an express disagreement among circuit

courts as to the definition of “program or activity”

which should be resolved by this Court. Petitioner agrees

with the interpretation of the term “program or activity”

provided by the LeStrange and Grove City cases, mean-

ing that no part of ASU, a recipient of federal assistance,

should be permitted to discriminate against any, em-

ployees. The view taken by the Brown and Dovle cases

permits wholesale discrimination except as to the spe-

cific individuals whom the federal funds reach directly.

Petitioner has urged to the courts below, however, that

no matter how narrowly drawn the definition of “pro-

gram or activity” is, he fits within the definition because

he can show he was discriminatorily excluded from par-

ticipation in the “program” of federal research grants.

Petitioner respectfully submits that, as to this issue, his

case be remanded for proceedings in accordance with this

Court’s decisions in LeStrange and Grove City.

IL The Ninth Circuit’s Decision That There Is No Private

Cause Of Action Under § 503 Of The Rehabilitation

Act Raises An Important Question Of Federal Law

That Should Be Settled By This Court.

The Ninth Circuit ruled that § 503, 29 U.S.C. § 798,

does not give rise to a private right of action. The Ninth

Circuit reasoned that a private remedy was inconsistent

with the scheme of § 503, which appointed the Depart-

ment of Labor to enforce the act. The Ninth Circuit

relied upon its recent decision in Fisher v. City of Tucson,

663 F.2d 861 (9th Cir. 1981), cert. denied, 103 S. Ct.

178."° In Fisher, the court relied on the case Rogers v.

©In Fisher the Department of Labor specifically found that

Fisher had not been discriminated against. In this case, the De

partment of Labor made a finding that ASU has discriminated

Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980), cert.

denied, 449 U.S. 889."

The Ninth Circuit’s opinion in this case as well as in

Fisher is in conflict with decisions of many district

courts. See, for example, Drennon v. Philadelphia Gen-

eral Hospital, 428 F. Supp. 809 (E.D. Pa., 1977); Duran

v. City of Tampa, 430 F. Supp. 75 (M.D. Fla., 1977);

Hart v. County of Alameda, 485 F. Supp. 66 (N.D. Cal.,

1979) ; Chaplin v. Consol. Edison Co. of N.Y., Inc., 482

F. Supp. 1165 (S.D. N.Y., 1980); Clarke v. FELEC Serv-

ices, Inc., 489 F. Supp. 165 (D.C. Alaska, 1980) ; Davis

v. United Airlines, 25 F.E.P. Cases 565 (E.D. N.Y.,

1980); California Paralyzed Veterans Ass'n v. F.C.C..,

496 F. Supp. 125 (C.D. Cal., 1980) ; and Davis v. Modine

Mfg. Co., 526 F. Supp. 943 (D.C. Kan., 1981)."*

Petitioner realizes that decisions by circuit co.w'ts have

superseded many of the above-listed district court opin-

against petitioner, yet the Department of Labor has been unable

to redress the wrongs it found to have been inflicted on petitioner.

The importance of the issue whether petitioner has a private cause

of action under § 503 is well demonstrated in this case, where a

finding against respondents nevertheless leaves petitioner with no

remedy.

The Rogers result has been reached by a number of circuit

courts, for example: Simpson v. Reynolds Metals Co., Inc., 629

F.2d 1226 (7th Cir. 1980); Hoopes v. Equifax, Inc., 611 F.2d 134

(6th Cir. 1979); Beam v. Sun Shipbuilding & Dry Dock Co., 679

F.2d 1077 (3rd Cir. 1982). Petitioner has found no circuit court

opinion holding that § 503 does provide a private right of action.

'2 The Davis v. Modine case out of the district of Kansas over-

rules an earlier decision out of that district which found no private

right of action. Brown v. American Home Proucts Corp., 520

F. Supp. 1120 (D.C. Kan., 1981). Further, the Davis v. Modine

case contains a detailed discussion of the factors considered by

the various courts which have ruled on this issue. Therefore, the

holding in Davis v. Modine is a strong statement in favor of finding

a private right and is similar to the dissents of Circuit Judges

Goldberg and Fletcher in Rogers and Fisher, respectively.

ions. Petitioner believes, however, that the large number

of district courts which have found a private right of

action under $ 503 indicates that this is a complicated

issue of significant national interest and is, therefore,

worthy of this Court’s attention. Further, the Davis v.

Modine case out of the district of Kansas still stands as

law in the Tenth Circuit since the Tenth Circuit has not,

to petitioner’s knowledge, ruled on the question.

The circuit courts’ decisions finding no private right

of action and the district courts’ decisions finding that a

private right exists were all reached after elaborate anal-

ysis of the same factors. The primary tool used by these

courts is the “Cort analysis.” '* See for example, Drennon,

Hart, Chaplin, Davis v. United Airlines, California Para-

lyzed Veterans, and Davis v. Modine. In addition, the

courts have looked to the 1978 amendments to the Re-

habilitation Act. The amendments added § 505, the at-

torneys fees provision. The district courts view the inclu-

sion of a provision for attorneys’ fees as an indication

that Congress intended handicapped persons to have a

private right of action under § 503. See, for example,

Hart, Clarke, and Davis v. Modine.

As an additional factor, some courts looked to the sub-

sequent legislative history of $ 503, finding therein clear

13JTn Cort v. Ash, 422 U.S. 66 (1975), this Court stated:

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 bene-

fit the statute was enacted’... ? Second, is there any indica-

tion of legislative intent, explicit or implicit, either to create

such a remedy or to deny one? Third, is it consistent with the

underlying purposes of the legislative scheme to imply such

a remedy for the plaintiff? And finally, is the cause of action

one traditionally relegated to state law, in an area basically

the concern of the States, so that it would be inappropriate to

infer a cause of action based solely on federal law?

422 U.S. at 78; (citations omitted; emphasis in original).

expressions of Congressional intent that a private right

of action exists. See, for example, Clarke, Hart, and

Davis v. Modine."

The Chaplin court looked at one more factor, the posi-

tion of the Department of Labor and Office of Federal

Contracts Compliance Program. In Chaplin the Depart-

ment of Labor and Office of Federal Contracts Compli-

ance Program filed an amicus brief wherein they urged

the finding of a private right of action since “the specter

of litigation would have a sobering effect on the parties

involved.” 482 F. Supp. at 1172. Petitioner’s case is a

perfect example of what the Department of Labor and

Office of Federal Contracts Compliance Program feared:

there is a finding of discrimination by the Department

of Labor, and, yet, ASU refuses to acknowledge responsi-

bility since there are no “teeth” in the agency’s powers

of enforcement. At best the agency could suspend federal

assistance; it is unlikely, however, that such a punish-

ment would be imposed on a major learning institution

such as ASU. Further, as Circuit Judge Goldberg pointed

out in his dissent in Rogers, there have been other in-

stances where the federal agency finds itself impotent to

remedy handicap discriminations. 611 F.2d at 1087-88.

In contrast, all the foregoing factors were considered

by the court which rendered the Rogers decision, yet an

opposite result was reached. Other circuit court decisions

reaching the same result as Rogers evaluate most of the

same factors. The difference between the conflicting de-

cisions, petitioner respectfully suggests, can be attributed

only to the predispositions of the judges in applying those

analysis tools to $503. Further, the large number of

'*Some courts have rejected as improper reliance on post-

enactment legislative history for construction of legislative acts.

As this Court has recognized, however, certain events subsequent

to the enactment of a law may be considered in its interpretation.

North Haven, 441 U.S. at 687, n.7, where this Court discussed

the value of the post-enactment history of § 504.

these cases indicates the high degree of public interest in

this question. Thus, there is an important question of

federal law which this Court should resolve.

IIL. The Ninth Circuit’s Decision t Petitioner May Not

Assert His § 503 Rights Under“#2 U.S.C. § 1983 Raises

An Important Question Of Federal Law That Should

Be Settled By This Court.

The Ninth Circuit’s opinion in this case recognized that

42 U.S.C. $ 1983 provides a private cause of action for

a violation of federal statute under color of state law and

that the scope of the section had been broadly interpreted.

Maine v. Thiboutot, 448 U.S. 1 (1980). The Ninth Cir-

cuit noted, however, that this Court has identified two

exceptions to the application of § 1983 to statutory viola-

tions: (1) where Congress has foreclosed private enforce-

ment of that statute in the enactment itself and (2)

where the statute does not create enforceable rights.

Middlesex Cty. Sewerage Auth. v. Sea Clamers, 453 U.S.

1 (1981); Pennhurst State School v. Halderman, 451 U.S.

1 (1981). The Ninth Circuit found that that first ex-

ception applied to this case, relying on its own dicta in

Fisher, that “Congress intended to leave the supervision

of the affirmative action programs to the {Department of

Labor].” 663 F.2d at 867. Petitioner respectfully sug-

gests that the Ninth Circuit has interpreted Middlesex

and Pennhurst in a manner which renders Thiboutot vir-

tually meaningless.

As noted above, the Department of Labor found that

ASU discriminated against petitioner, yet the Depart-

ment’s enforcement mechanisms have proved unavailing."

1S Petitioner anticipates that respondents will point out the fol-

lowing portion of the Ninth Circuit's decision:

In addition, we have difficulty accepting Meyerson’s con-

clusion that the enforcement scheme is ineffective. A variety

of techniques to seek compliance with the Act may be employed,

including informal persuasion. These techniques have been

The Ninth Circuit nevertheless determined that a private

right of action under § 503 would be inconsistent with

Congressional intent.

Circuit Judge Goldberg, in his dissent in Rogers, argued

that a private remedy would complement the administra-

tive enforcement scheme. In support of his position, he

cited the Department of Labor’s position that § 503 does

imply a private right of action, and that the prospect of

litigation would have the effect of promoting, rather than

hindering the Department’s enforcement efforts. 611 F.2d

at 1103-1104. His views were adopted by Circuit Judge

Fletcher, who dissented in the Fisher opinion. Further,

as Circuit Judge Fletcher pointed out in his dissent, dual

enforcement schemes are common. 663 F.2d 870.

Despite the Department of Labor’s position on the

issue, the majorities in Rogers and in Fisher stated that

the provision of an express administrative remedy creates

at least some basis to conclude that a private right of

action would be inconsistent with the purposes of the

legislative scheme. As pointed out above, the Ninth Cir-

cuit accepted this view.

somewhat effective in Meyerson’s own case, as evidenced by the

changes that he admits have taken place since he pursued his

remedies. Because much of the Department’s effort took place

subsequent to the district court action and thus is not part

of the record before us, we are unable to determine the extent

to which the enforcement mechanism has been effective.

Meyerson, 709 at 1240, Appendix p. lla. In addition to the fact

that this comment attempts to justify the court’s result by mat-

ters outside the record, there is the additional problem that the

record is unclear as to whether the minimal improvements ‘“‘ad-

mitted” by petitioner followed commencement of this litigation

and, thus, may not be the result of any efforts by the Department

of Labor. Further, the record before the Ninth Circuit did not

demonstrate whether the “improvements” have been permanent or

temporary. Petitioner believes that no informal persuasion will

be effective where there is no “specter of litigation” for failure

to act.

The effect of the Ninth Circuit's decision in this case

is to permit the denial of a right of action under £ 1983

whenever Congress has failed by omission to provide for

a private right of action. This, petitioner submits is an

overly broad use of the Middlesex and Pennhurst limits

on Maine v. Thiboutot. Rather, the proper limit would

be where Congress has affirmatively stated that there

shall be no private right of action.

Thus, an important question of federal law is pre-

sented and should be resolved by this Court.

CONCLUSION

Petitioner respectfully requests that this Court accept

this petition for certiorari to consider the following is-

sues: (1) whether 29 U.S.C. § 794 covers employees only

where the primary purpose of the federal assistance was

to provide employment, (2) alternatively, whether a pri-

mary purpose of federal grants for research by university

professors is to provide employment, (3) whether 29

U.S.C. $794 is “program-specific’, (4) whether there

exists a private right of action under 29 U.S.C. #793,

and (5) whether violations of rights given by 29 U.S.C.

$793 can be remedied by an action brought under 42

U.S.C. § 1983.

CHARLES D. RovusH

Counsel of Record

TREON, WARNICKE & Rovsu, P.A.

919 North First Street

Phoenix, Arizona 85004

(602) 257-0747

Attorneys for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 81-5996

LEE MEYERSON,

Plaintiff-Appellant,

Vv.

THE STATE OF ARIZONA; ARIZONA BOARD OF REGENTS;

RALPH M. BILBY; RuDY E. CAMPBELL; ESTHER N.

CAPIN; EARL H. CARROLL; THOMAS CHANDLER; WIL-

LIAM G. PAYNE; WILLIAM P. REILLY; Tio A. TACHIAS;

RENEE MARLER; JOHN SCHWADA; PAIGE E. MULHOL-

LAN; KARL H. DANNENFELDT; JOYCE FOSTER; GUIDO

WEIGAND; AUSTIN JONES; LEONARD D. GOODSTEIN;

PETER KILLEEN; JOHN DOES I THRU V; and JANE DOES

I THRU V,

Defendants-A ppellees.

Argued and Submitted Dec. 14, 1982

Decided May 9, 1983

Thomas FE. Littler, Charles D. Roush, Treon, Warnicke

& Roush, Phoenix, Ariz., for plaintiff-appellant.

Stephen K. Smith, Phoenix, Ariz., for defendants-

appellees.

Appeal from the United States District Court

for the District of Arizona

Before WALLACE and FERGUSON, Circuit Judges,

and GRANT,”® District Judge.

WALLACE, Circuit Judge:

Meyerson, a handicapped psychology professor at Ari-

zona State University (the University), charged the Uni-

versity with discrimination under four different statutory

provisions: (1) section 504 of the Rehabilitation Act of

1973, as amended (the Act), 29 U.S.C. § 794, (2) section

503 of the Act, 29 U.S.C. § 793, (3) 42 U.S.C. § 1983,

and (4) the Revenue Sharing Act, 31 U.S.C. §§ 1242,

1244(a). The district judge granted the University’s mo-

tion for summary judgment on each statutory claim.

Meyerson v. Arizona, 507 F.Supp. 859 (D.Ariz. 1981) ;

Meyerson v. Arizona, 526 F.Supp. 129 (D.Ariz. 1981).

Meyerson appeals the entry of summary judgment only

on his claims under section 503, section 504, and section

1983. We affirm.

Meyerson is a professor of psychology whose hearing

is impaired to the extent that he must depend upon lip

reading skills. He also suffers from a hip ailment, the

result of a childhood disease. The University does not

contest Meyerson’s handicapped status and admits that it

was aware of his condition when he was hired in 1967.

Meyerson charges that the University has discriminated

against him in four ways: by preventing him from ad-

vancing and fostering his fields of study, by failing to

provide him with sufficient resources for research and

study, by impairing his opportunities for professional de-

velopment, and by paying him a salary which is not com-

mensurate with his experience or service.

After pursuing administrative remedies through the

University, Meyerson filed a section 503 complaint with

the United States Department of Labor (the Depart-

* Honorable Robert A. Grant, United States District Judge,

Northern District of Indiana, sitting by designation.

ment). The Department found that the University had

discriminated against Meyerssi, and has apparently

sought to alleviate some of the conditions at the Univer-

sity. Although the parties dispute the effect of the De-

partment’s activities, Meyerson admits that “the situa-

tion at ASU with regard to discrimination has improved”

since he pursued his legal remedies.

Meyerson filed a complaint in district court asserting

claims under sections 503 and 504 of the Act, section

1983, and section 1242 of the Revenue Sharing Act.

The University moved for summary judgment on all

four claims. The district court granted the University’s

motion on the section 503 claim and dismissed with-

out prejudice Meyerson’s claim under the Revenue Shar-

ing Act for failure to exhaust administrative remedies.

507 F.Supp. at 860-62, 864. The district judge also de-

nied without prejudice the University’s motion on the

section 504 claim because of an inadequate record. Id.

at 862-63. He also denied the University’s motion on the

section 1983 claim, pending the resolution of the section

504 issue. The district judge additionally held that Mey-

erson could not assert a section 1983 claim based on sec-

tion 503. 7d. at 864.

After discovery, the parties filed cross-motions for

summary judgment. The district judge granted the Uni-

versity’s motion on the section 504 and section 1983

claims. 526 F.Supp. at 129. On appeal, Meyerson has

abandoned his claim under the Revenue Sharing Act and

his section 1983 claim based on section 504. He appeals

from the summary judgment entered on his sections 503

and 504 claims, and on his section 1983 claim based on

section 503.

Section 504 of the Act prohibits discrimination against

the handicapped. It states in part that:

No otherwise qualified handicapped individual in

the United States, as defined in section 706(7) of

this title, shall, solely by reason of his handicap, be

excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial

assistance. ...

29 U.S.C. § 794. In a case decided after Meyerson filed

this appeal, we stated that a private action under section

504 “cannot be maintained unless a primary objective «f

the federal financial assistance is to provide employ-

ment.” Scanlon v. Atascadero State Hospital, 677 F.2d

1271, 1272 (9th Cir. 1982) (Scanlon). Accord United

States v. Cabrini Medical Center, 639 F.2d 908 (2d Cir.

1981); Carmi v. Metropolitan St. Louis Sewer District,

620 F.2d 672, 674-75 (8th Cir.), cert. denied, 449 US.

892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980); Trageser v.

Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th

Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61

L.Ed.2d 318 (1979); contra Jones v. Metropolitan At-

lanta Rapid Transit Authority, 681 F.2d 1376, 1378-80

(llth Cir. 1982). The district court held that Meyerson

failed to clear this initial hurdle.

Meyerson first requests that we reconsider ou® holding

in Scanlon, contending that our analysis there conflicts

with the Supreme Court’s recent decision in North Haven

Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912,

72 L.Ed.2d 299 (1982) (North Haven) (holding that em-

ployment discrimination comes within Title IX’s prohibi-

tion). See Le Strange v. Consolidated Rail Corp., 687

F.2d 767, 777-78 (3d Cir. 1982) (Adams, J. & Weis, J.,

concurring) (rejecting the “primary objective’ require-

ment as inconsistent with the Court’s analysis in North

Haven), cert. granted, —— U.S. ——, 1038 S.Ct. 1181,

75 L.Ed.2d 429 (1983) (No. 82-862). North Haven,

however, was issued one week prior to our filing of

Scanlon and over four months before the panel’s de-

cision to deny the petition for rehearing. Thus, we must

ascribe knowledge of North Haven to the panel in Scan-

lon. North Haven is not directly contrary to Scanlon.

Since we are not permitted to reverse the decision of a

panel of this court, absent a contrary intervening Su-

preme Court decision or a convening of our court en banc,

we must adhere to our holding in Scanlon.

Meyerson next claims that even conceding the validity

of Scanlon, the district court erred in holding that em-

ployment was not a primary object've of the federal as-

sistance received by the University. The federal assist-

ance to the University consisted -f instructional and re-

search grants. Their primary purpose was to further

scientific research and assist in the training of clinical

psychologists. Undoubtedly, these programs provided em-

ployment for various professors and graduate students.

Nevertheless, such a minimal and incidental effect on

employment could not have been one of the primary pur-

poses of the grants. Indeed, almost all federal assistance

results in an increase of at least some employment.

Therefore, to adopt Meyerson’s argument would essen-

tially eliminate the “primary objective” requirement, in

derogation of the congressional intent. We conclude that

providing employment was not one of the primary ob-

jectives of the instructional and research grants made

by the government to the University.’

III

Section 503 of the Act requires affirmative action pro-

grams for employing the handicapped. It states that:

‘The district court apparently rejected Meyerson’s claim both

because he failed to establish a sufficient nexus between himself

and the federal assistance received by the University, and because

he failed to show that a primary objective of the federal assistance

was to provide employment. Meyerson v. Arizona, 526 F.Supp. 129,

130-31 (D.Ariz. 1981). Since we conclude that Meyerson fails to

establish that the research grants had a primary purpose to

provide employment, we need not consider the nature of the nexus

requirement or whether it was established by Meyerson.

Any contract in excess of $2,500 entered into by any

Federal department or agency for the procurement

of personal property and nonpersonal services (in-

cluding construction) for the United States shall

contain a provision requiring that, in employing per-

sons to carry out such contract[,] the party con-

tracting with the United States shall take affirmative

action to employ and advance in employment quali-

fied handicapped individuals as defined in section 706

(7) of this tiile....

29 U.S.C. § 793(a). Subsequent to the district court’s

decision in this case, we decided Fisher v. City of Tucson,

663 F.2d 861 (9th Cir. 1981), cert. denied, —— US.

—, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982) (Fisher).

Employing the four-part test of Cort v. Ash, 422 U.S. 66,

95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we concluded that

section 503 does not give rise to a private right of action.

663 F.2d at 863-67. Meyerson makes no attempt to dis-

tinguish Fisher, requesting only that we consider our ear-

lier holding. Again, this argument is one that may be

made properly in a suggestion for rehearing en banc, but

not to us.

Meyerson contends that although Fisher forecloses a

private cause of action based directly on section 503, he

may still assert a claim under 42 U.S.C. § 1983 based

on a violation of section 503. Although we were not con-

2 Section 1983 states that:

Every person who, under color of any statute, ordinance, regu-

lation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person w.thin the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shal! be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983. The Supreme Court has held that section 1983

applies to violations of all federal statutes, not just civil rights

fronted with this question in Fisher, our reading of that

case and our own independent analysis of the statutory

scheme of enforcement under section 503 compel the con-

clusion that Meyerson cannot circumvent the holding in

Fisher by asserting his section 503 claim via section

1983.

Section 1983 provides a private cause of action for a

violation of a federal statute under color of state law.

Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.

2d 555 (1980). A plaintiff's failure to prove that a pri-

vate cause of action may be inferred from a statute does

not necessarily preclude a remedy under section 1983

based on that statute. See Middlesex County Sewerage

Authority v. National Sea Clammers Association, 453

U.S. 1, 18-19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435

(1981) (Middlesex). However, the Supreme Court has

identified two exceptions to the application of section 1983

to statutory violations: (1) where Congress has fore-

closed private enforcement of that statute in the enact-

ment itself, and (2) where the statute does not create

“enforceable rights.” Jd. at 19, 101 S.Ct. at 2626; Penn-

hurst State School and Hospital v. Halderman, 451 U.S.

1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981)

(Pennhurst). Our task is to determine if either of these

exceptions applies to section 503.

The district court rejected Meyerson’s section 1983

claim because it concluded that section 503 conferred no

substantive rights upon handicapped persons. 507 F.

Supp. at 864. Thus, the district court’s dismissal fits

within the second Middlesex exception, the “rights” ex-

ception. Meyerson argues that the district court’s con-

clusion cannot be upheld due to our holding in Fisher,

supra. Employing the first prong of the Cort v. Ash test,

we inquired in Fisher whether Congress intended to con-

statutes. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d

555 (1980).

fer federal rights on the beneficiaries of section 503.

Fisher, supra, 663 F.2d at 863-64. Answering affirma-

tively, we concluded:

While we agree with the Fifth Circuit’s ultimate

conclusion that section 503 does not create a private

right of action, we do find that the statute creates a

federal right on behalf of the protected class. Clearly

the statute was intended to benefit handicapped per-

sons. The statute also provides that any handicapped

individual who believes that a contractor is not in

compliance with his contract may file a complaint

with the DOL, which has investigatory and enforee-

ment powers. It seems apparent that Congress did

intend to confer some federal rights on handicapped

individuals.

Id. (citation and footnote omitted) (emphasis added).

Meyerson contends that this language precludes the

University from asserting the second Middlesex exception

as a bar to his section 1983 claim. The implication of

Meyerson’s argument is that a finding for plaintiff under

the first prong of the Cort v. Ash analysis precludes a

defendant’s assertion of the second Middlesex exception.

The University interprets this passage as stating only

that a private party has a “right” to seek enforcement

through the Department, not that section 503 creates

a federal substantive “right” as that term is used by

the Supreme Court in Pennhurst and Middlesex. We need

not resolve this question because we conclude that Meyer-

son's suit is barred under the first Middlesex exception,

the exclusivity exception.

In applying this first exception, the Supreme Court

has stated that, “[w]hen the remedial devices provided

in a particular Act are sufficiently comprehensive, they

may suffice to demonstrate congressional intent to pre-

clude the remedy of suits under § 1983.” Middlesex, su-

pra, 453 U.S. at 20, 101 S.Ct. at 2626. The Act estab-

lishes the Department as the agency responsible for en-

forcing its provisions:

If any handicapped individual believes any contrac-

tor has failed or refuses to comply with the pro-

visions of his contract with the United States, relat-

ing to employment of handicapped individuals, such

individual may file a complaint with the Department

of Labor. The Department shall promptly investi-

gate such complaint and shall take such action

thereon as the facts and circumstances warrant, con-

sistent with the terms of such contract and the laws

and regulations applicable thereto.

29 U.S.C. $ 793(b).

The administrative mechanism for enforcing the Act

is set out at 41 C.F.R. S$ 60-741.1 through 60-741.54.

Under these provisions, any government contract or sub-

contract for more than $2,500 must contain an affirmative

action clause. 7d. $$ 60-741.4 and 60-741.20. If the De-

partment discovers a violation of the affirmative action

clause or of the regulations, it is instructed to proceed

“by informal means, including conciliation, and persua-

sion, whenever possible.” /d. § 60-741.28(a). If these

efforts are unsuccessful, the Department’s authorized rep-

resentative may bring suit to enforce the contractual pro-

visions, withhold progress payments on the contract, ter-

minate a contract in whole or in part, or debar a con-

tractor from receiving future government contracts. Id.

$ 60-741.28(b)-(e). The question before us is whether

Congress intended these administrative remedies to be

the exclusive remedies under section 503 of the Act.

In Fisher, supra, under our analysis of the third prong

of Cort v. Ash, we concluded that a private action under

section 503 would be inconsistent with the administrative

scheme provided by Congress. We held that “Congress in-

tended to leave the supervision of the affirmative action

programs to the [Department].” 663 F.2d at 867. As

10a

indicated earlier, we realize there are differences between

the analysis under Cort v. Ash of whether a private cause

of action can be inferred from a statute and the analysis

of whether Congress intended certain remedies to be ex-

clusive.* In this case, however, we conclude that the ex-

plicit finding in Fisher that Congress intended to leave

the supervision of the affirmative action programs to the

Department disposes of the exclusivity question. We could

not now find that Congress did not intend the administra-

tive remedies to be exclusive without directly contradict-

ing Fisher.

Moreover, the «ame reasons which led to our conclu-

sion in Fisher are applicable here. We stated there that

judicial inquiry would only duplicate the Department’s

investigation of factual allegations. Jd. at 867. This ob-

servation supports a conclusion that Congress intended

the administrative remedies to be exclusive. We indicated

in Fisher our doubt that Congress intended us to review

the affirmative action plans of governmental entities. Jd.

Indeed, statutes mandating affirmative action, as opposed

to statutes prohibiting discrimination, lend themselves

more easily to administrative enforcement than judicial

review. This conclusion is reinforced by Congress’s man-

date that the Department employ means of persuasion

’ The most salient difference involves the allocation of the

burden of proof. The burden is on the plaintiff to show that Con-

gress intended to create a private cause of action when it enacted

a particular statute. See Osborn v. American Association of Retired

Persons, 660 F.2d 740, 745 (9th Cir. 1981) (silent legislative history

and lack of express statutory language are enough to defeat infer-

ence of a private cause of action). On the other hand, the burden

is not on the plaintiff to demonstrate congressional intent to pre-

serve section 1983 remedies. Middlesex County Sewerage Authority

v. National Sea Clammers Association, 453 U.S. 1, 21 n. 31, 27-28

n. 11, 101 S.Ct. 2615, 2626 n. 31, 2630 n. 11, 69 L.Ed.2d 435 (ma-

jority opinion and opinion of Stevens, J., dissenting). Nevertheless,

in this case both the express language and the reasoning of Fisher

preclude us from permitting Meyerson to assert a claim under

section 1983, regardless of who shoulders the burden of proof.

lla

and quiet coercion to direct the behavior of statutory of-

fenders. Thus, our independent reading of the statutes

and regulations leads us to conclude that Congress in-

tended to foreclose private actions under section 503,

whether they are brought directly under section 503 or

indirectly under section 1983.

Meyerson contends that Congress could not have in-

tended to foreclose a private action because the available

administrative remedies are insufficient. He argues that

drastic remedies such as the termination of funds are

seldom employed and, hence, are ineffective. He argues

further that this insufficiency is illustrated by his own

case, in which the Department has found that he was

discriminated against by the University, but, he asserts,

no significant changes have resulted. It is not our func-

tion, however, to “consider whether the current enforce-

ment mechanism is the best method to effectuate the pur-

poses of the Act, our function is to determine the intent

of Congress.” Fisher, supra, 663 F.2d at 867. We have

concluded that Congress intended these remedies to be

exclusive; it is largely irrelevant whether we think that

these remedies are efficacious.

In addition, we have difficulty accepting Meyerson’s

conclusion that the enforcement scheme is ineffective. A

variety of techniques to seek compliance with the Act

may be employed, including informal persuasion. These

techniques have been somewhat effective in Meyerson’s

own case, as evidenced by the changes that he admits

have taken place since he pursued his remedies. Because

much of the Department’s effort took place subsequent

to the district court action and thus is not part of the

record before us, we are unable to determine the extent

to which the enforcement mechanism has been effective.

Furthermore, in an area of intense competition for fed-

eral funds, we cannot say that the available remedies are

ineffective. The ability of government entities, such as

the University, to compete for scarce federal funds might

12a

wel! be hindered by a record of discriminatory practices

toward the handicapped. Thus, although Meyerson may

feel unsatisfied by the remedies pursued on his behalf in

this case, we cannot say that the administrative enforce-

ment scheme is insufficient to effectuate the policies of

the Act.

Therefore, we affirm the district court’s dismissal of

Meyerson’s section 1983 claim although for a different

reason than that offered by the district court. We hold

that Congress has foreclosed private enforcement of sec-

tion 503 by providing a comprehensive remedial scheme

under the authority of the Department.

AFFIRMED.

FERGUSON, Circuit Judge, concurring:

I concur in Judge Wallace’s opinion.

With regard to the issue concerning section 504 of the

Rehabilitation Act of 1973, I do so only because Scan/on

v. Atascadero Huspital, 677 F.2d 1271 ‘9th Cir. 1982),

compels that result. I am still of the opinion that Scan/ow

was incorrectly decided, as I was when I dissented in

that case. 677 F.2d at 1272-77.

GRANT, Circuit Judge, also concurs in Circuit Judge

FERGUSON’s concurring opinion.

13a

UNITED STATES DISTRICT COURT

D. ARIZONA

No. Civ. 80-715 Phx. WPC

LEE MEYERSON,

Plaintiff,

THE STATE OF ARIZONA et al.,

Defendants.

Feb. 12, 1981

Charles D. Roush and Gerrie Apker Kurtz, of Treon,

Warnicke & Roush, P. A., Phoenix, Ariz., for plaintiff.

Stephen K. Smith, Asst. Atty. Gen. for the State of

Arizona, Phoenix, Ariz., for defendants.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Dr. Lee Meverson, Professor of Psychology at Arizona

State University, alleges that he is the victim of discrimi-

nation because of his handicap. Dr. Meyerson asserts

causes of action under § 503 and § 504 of the Rehabilita-

tion Act of 1073, as amended, 29 U.S.C. $§ 793-794

(Supp. II 1978), the Revenue Sharing Act, 31 U.S.C.

1242 (1976), and 42 U.S.C. $1983 (1976). The defend-

ants have moved for summary judgment on the following

grounds:

(1) there is no private right of action under

$503 of the Rehabilitation Act;

l4a

(2) the plaintiff has failed to state a claim under

$ 504 because he is not the beneficiary of any pro-

gram or activity that receives federal funds;

(3) the plaintiff has failed to state a claim under

the Revenue Sharing Act because ASU does not re-

ceive any revenue sharing funds;

(4) the plaintiff fails to state a claim under

£ 1983 because he has not been deprived of any fed-

eral statutory right.

For the purposes of this motion, it is not necessary for

this Court to determine whether Dr. Meyerson is an

“otherwise qualified handicapped person’ within the

meaning of the Rehabilitation Act, nor whether he has

been the victim of discrimination.

Section 503 Claim

Section 503, 29 U.S.C. § 792 ‘Supp. II 1978), requires

that any contract in excess of $2,500 entered into by any

federal department or agency for the procurement of

personal property or nonpersonal services “shall contain

a provision requiring that, in employing persons to carry

out such contract, the [contracting party] shall take af-

firmative action to employ and advance in employment

qualified handicapped individuals .. .”

The past several years has seen considerable litigation

over whether this provision confers a private implied

right of action upon handicapped persons. No less than

three circuit courts have determined that § 503 provides

no such right of action. See Simpson v. Reynolds Metals

Co., 629 F.2d 1226 (7th Cir. 1980); Rogers v. Frito Lay,

Inc., 611 F.2d 1074 (5th Cir.), cert. denied USS.

101 S.Ct. 246, 66 L.Ed.2d 115 (1980); Hoopes v.

Equifax, Inc., 611 F.2d 139 (8th Cir. 1979). This Court

is aware that three distri¢t courts within the Ninth Cir-

cuit have held to the contrary. California Paralyzed

Veterans Ass’n v. F. C .C., 496 F.Supp. 125 (C.D. Cal.

15a

1980); Clarke v. FELEC Services, Inc., 489 F.Supp.

165 ‘D. Alaska 1980); Hart v. County of Alameda, 485

F.Supp. 66 (N.D. Cal. 1979). A court within this dis-

trict has determined that § 503 provides no implied pri-

vate right of action. Fisher v. City of Tucson, CIV. 77-

87 TUC (D. Ariz. 1977). This Court has been informed

that the Ninth Circuit heard oral argument in Fisher in

May, 1980, and that a decision by the pane) will be forth-

coming in the near future.

In view of the exhaustive treatment of this issue by the

cases cited above, this Court's discussion will be com-

paratively brief.

Initially, it must be noted that recent Supreme Court

decisions reflect a restrictive approach to implying private

rights of action. Transamerica Mortgage Advisors, Inc.

v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146

(1979) [TAMA]; Touche Ross & Co. v. Redington, 442

U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). See Jab-

lon v. Dean Witter & Co., 614 F.2d 677, 679 (9th Cir.

1980). Whereas the test enunciated in Cort v. Ash, 422

U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), considered

Congressional] intent as merely one factor to be balanced

against three others, Touche Ross and TAMA indicate

that Congressional intent must be the center of inquiry.

Touche Ross, 442 U.S. at 575-76, 99 S.Ct. at 2488-89;

TAMA, 444 U.S. at 23-24, 100 S.Ct. at 248-249.

Whether or not Congress intended to create a private

right of action is basically a matter of statutory con-

struction. It is not enough that Congress intended to

benefit a particular class of people. Rather, the focus

is upon whether Congress intended that a statute’s ob-

ligations be enforced through private litigation. TAMA,

444 U.S. at 17-18, 100 S.Ct. at 246-247.

An examination of § 503’s language reveals that it is

not the type of statute that implicates a private right

of action. By its terms, it neither creates or alters civil

liabilities, see TAMA, 444 U.S. at 18-19, 100 S.Ct. at

l6a

246-247, nor does it proscribe certain conduct. See

Touche Ross, 442 U.S. at 569, 99 S.Ct. at 2485. These

cases indicate that a private right of action may be im-

plied if Congress intended to confer substantive rights

upon private parties, but failed to provide any federal

remedy with which to enforce these rights. See Cannon

v. University of Chicago, 441 U.S. 677, 699-701, 99 S.Ct.

1946, 1958-1960, 60 L.Ed.2d 560 (1979); Montgomery

v. American Airlines, Inc., 637 F.2d 607, 15 Av.Cas.

18,272 (9th Cir. 1980) (“There must be a showing that

either the statute proscribes the conduct complained of

or that the statute by its terms grants private rights to

any identifiable class). The language of § 503 merely

requires federal agencies to include an affirmative ac-

tion covenant in certain procurement and service con-

tracts. See Simpson, 629 F.2d at 1239. This point is

emphasized when one compares § 503 to the right creat-

ing language of § 504. See Rogers, 611 F.2d at 1080.

Second, TAMA indicates that where a statute ex-

pressly provides a particular remedy or remedies, a court

should be very reluctant to read others into it. 100

S.Ct. at 247. Section 503(b) permits an aggrieved per-

son to pursue an administrative remedy.’

Nevertheless, even settled rules of statutory construc-

tion may yield to persuasive evidence of contrary legis-

lative intent. Securities Investor Protection Corp. v.

Barbara, 421 U.S. 412, 419, 95 S.Ct. 1733, 1738, 44

L.Ed.2d 263 (1975). Even the most vigorous proponents

of an implied right of action admit that the legislative

history of the Rehabilitation Act of 1973 is virtually

silent in this regard. See. e.g., Rogers v. Frito-Lay, Inc.,

611 F.2d at 1094 (Goldberg, J., dissenting); Hart v.

County of Alameda, 485 F.Supp. 66, 73 (N.D.Cal. 1979).

What the proponents of a private right of action point

1 Dr. Meyerson has pursued this administrative remedy, and the

Department of Labor has found in his favor.

17a

to, however, are the 1978 Amendments and the accom-

panying legislative history. In particular, in § 505 Con-

gress added an attorneys fees provision for actions or

proceedings brought under the Rehabilitation Act. 29

U.S.C. § 794a(b) (Supp. II 1978).

There is some legislative history of these amendments

that Congress in 1978 believed that it had in 1973 cre-

ated a private right of action under § 503. Nevertheless,

the Supreme Court has made it quite clear that such

after-the-fact legislative observations are in no sense part

of the legislative history of the original statute. Oscar

Meyer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066,

2072-73, 60 L.Ed.2d 609 (1979). Rather, it is the intent

of Congress that passed the statute that controls. Id.

Although post-enactment treatment of a statute is evi-

dence of the intent of Congress at the time of passage,

such expressions may not be accorded the dignity of con-

temporaneous legislative history as section 503’s pro-

ponents have done. See id. Such expressions are in-

sufficient to overcome the language of the statute itself

and the silence of contemporaneous legislative history.

Finally, the attorneys fees provision, § 505, does not

explicitly point to § 503, but refers to that section only

by implication. In contrast, £505 provides that the

rights, remedies, and procedures of Title VI of the Civil

Rights Act of 1964 will be available to an action under

§ 504, and that certain provisions of Title VII will be

available to actions under § 501 (federal employees}. 29

U.S.C. § 794a(a) (Supp. II 1978). Whereas Congress

in 1978 gave substance to actions under § 501 and § 504,

it did not do so with respect to § 503. Of course, § 505

is only evidence that Congress in 1978 may have under-

stood that in 1973 it had created a private right of action

only under $501 and § 504. Nevertheless, this is evi-

dence contrary to legislative expressions in 1978 by in-

dividual Congressmen as to what Congress intended in

1973.

18a

Section 504 Claim

Section 504 provides that an otherwise qualified handi-

capped person may not, “solely by reason of his handi-

cap, be excluded from participation in, be denied the ben-

efits of, or be subjected to any discrimination under any

program or activity receiving federal financial assist-

ance.” 29 U.S.C. § 794 (Supp. II 1978). The parties are

in dispute as to what constitutes a federally funded pro-

gram or activity. While the defendants urge this Court

to focus upon ASU's Psychology Department, the plain-

tiff argues that a mere showing that ASU receives fed-

eral funding is sufficient.

Section 504 does not generally forbid discrimination

against the handicapped by recipients of federal assist-

ance. Instead, the discrimination must have some direct

or indirect effect on handicapped persons in the program

or activity receiving federal assistance. Simpson v.

Reynolds Metals Co., 629 F.2d at 1232. See Carmi v.

Metropolitan St. Louis Sewer Dist., 620 F.2d 672, 675

(8th Cir.), cert. denied, US. , 101 S.Ct. 249,

66 L.Ed.2d 117 (1980) (the plaintiff must be an intended

beneficiary of federal assistance). In Simpson, the Sev-

enth Circuit rejected the “unified entity approach” urged

by the plaintiffs in that case and seemingly argued by Dr.

Meyerson here. Under that theory, “once some part of an

entity becomes involved in a program or activity receiv-

ing federal financial assistance, the employment practices

of the entire institution would be subject to the coverage

of § 504.” Jd. at 1233 n.12. Dr. Meyerson’s argument

that ASU is a federally funded activity or program must

be rejected.

This is not to say that summary judgment must be

granted. Aijthough the defendants correctly have criti-

cized the entity approach of the plaintiff's, the defendants’

focus upon the Psychology Department is subject to the

same criticism. The only difference is that the defend-

ants have chosen a smaller entity.

19a

The question is whether Dr. Meyerson benefits di-

rectly or indirectly from a federally funded program or

activity. Simpson, 629 F.2d at 1232. Federally funded

activities and programs at ASU must be identified and

Dr. Meyerson’s relationship to them must be analyzed

before this court can determine whether or not the nexus

requirement of £ 504 has been met. Certainly, it is rele

vant that Dr. Meyerson may not receive any federal

grants and that the Psychology Department may not re-

ceive any federal funding. These factors alone cannot be

conclusive, however, that Dr. Meyerson is not a direct or

indirect beneficiary of a federally funded program or ac-

tivity. The record is simply incomplete at this point for

the defendants to be able to establish the absence of a

genuine issue of material fact as to the nexus require

ment of § 504.

The second matter in dispute is whether Dr. Meyerson

must establish that the primary object of the federal as-

sistance is to provide employment. Section 505 provides

that the remedies, procedures, and rights of Title VI are

available to an aggrieved person under § 504. 29 U.S.C.

§ 794a(aii2) (Supp. II 1978). Section 601 of Title VI

contains language almost identical to $504 of the Re-

habilitation Act. Section 604 provides:

Nothing contained in this subchapter shall be

construed to authorize action under this subchapter

by any department or agency with respect to any

employment practice of any employer .. . except

where a primary objective of the Federal financial

assistance is to provide employment.

42 U.S.C. § 2000d-3 (1976).

The great weight of authority holds that claims of

employment discrimination under § 504 cannot be main-

tained unless a primary objective of the federally funded

activity or program is to provide employment. See, e.g.,

Carmi, 620 F.2d at 674-75; Trageser v. Libbie Reha-

20a

bilitation Center, Inc., 590 F.2d 87, 88-89 (4th Cir.

1978), cert. denied 442 U.S. 947, 99 S.Ct. 2895, 61

L.Ed.2d 318 (1979); Simpson, 629 F.2d at 1233, 1234 &

n.13. Contra, Hart v. County of Alameda, 485 F.Supp.

at 71-73 ($604 limitations not applicable to private

causes of action under $504). Under Trageser, it is

necessary to show either (1) that a primary objective

of the federal aid is to provide employment or (2) that

discrimination in employment necessarily causes discrimi-

nation against the primary beneficiaries of the federal

aid. Guertin v. Hackerman, 496 F.Supp. 593, 596 (S.

D.Tex. 1980).

Due to the inadequate state of the record with respect

to these issues at the present time, this Court must deny

the defendants’ motion for summary judginent without

prejudice with respect to the § 504 claim.

Revenue Sharing Act

The parties are in dispute with regard to the require-

ment of a nexus between revenue sharing funds and the

alleged employment discrimination. This issue is re-_

solved by 831 U.S.C. §1242(a)(2) (1976). That sec-

tion provides that the antidiscrimination provisions of

$ 1242(a)(1) do not apply where the governmental en-

tity in question establishes “by clear and convincing

evidence, that the program or activity with respect to

which the allegation of discrimination has been made is

not funded in whole or in part” with revenue sharing

funds. See Harris v. White, 479 F.Supp. 996, 1010 (D.

Mass. 1979). This Court need not determine this issue at

the present time, because it is clear that Dr. Meyerson

has failed to exhaust his administrative remedies.

Unlike the Rehabilitation Act, the Revenue Act con-

tains an express right of action. 31 U.S.C. § 1244 (1976).

The relief available is very limited. See 31 U.S.C. § 1244

(b) (order or injunction with regard to suspension, ter-

mination, or repayment of revenue sharing funds). Un-

2la

like an action under § 504 of the Rehabilitation Act, the

plaintiff must exhaust his administrative remedies be-

fore he may institute an action under the Revenue

Sharing Act. Compare 31 U.S.C. § 1244(a) (1976) with

Kling v. County of Los Angeles, 633 F.2d 876, 879 (9th

Cir. 1980). Section 1244(d) and 31 C.F.R. § 51.64

(1980) provide that an action may not be brought if

the complainant has not filed an administrative complaint

with the Director of the Office of Revenue Sharing, 31

C.F.R. § 51.61 (1980), or with an agency with which the

Director has an agreement under 31 C.F.R. § 51.74

(1980). The pleadings and the record do not indicate

whether or not Dr. Meyerson has filed a complaint with

the appropriate agency. Thus, the claim under the Reve-

nue Sharing Act must be dismissed without prejudice

because it is not clear that Dr. Meyerson has exhausted

his administrative remedies.

Section 1983 Claim

The Supreme Court in Maine ». Thiboutot, 448 U.S. 1,

100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), recently held that

$ 1983 provides a remedy for deprivations of rights con-

ferred by federal statutory law as well as the Consti-

tution. Where state action is present, it is unclear just

how Thiboutot relates to the standards to be employed

in determining whether a private right of action should

be implied under a federa! statute. Dr. Meyerson is

probably correct in arguing that it is not necessary first

to imply a private right of action under the federal

statute in question before one can have a remedy under

£1983. See Yapalter v. Bates, 494 F.Supp. 1349, 1355-

56 (S.D.N.Y. 1980).

Nevertheless, it is clear that £1983 is purely a re-

media] statute—it provides no substantive rights. Chap-

man v. Houston Welfare Rights Organization, 441 U.S.

600 617-18 99 SCt. 1905, 1915-16, 60 L.Ed.2d 508

(1979). Thus, before one can enjoy a right of action

22a

under § 1983, one must establish a violation of a fed-

erally protected right independent of § 1983. In order

to have an action under § 1983, it is not enough to es-

tablish the violation of a federal statute. Rather, the

statute violated must be one that confers a federal right

upon the plaintiff. See, e.g., Maine v. Thiboutot, 100

S.Ct. at 2504, 2506 n.6 (§ 1983 protects rights, privileges,

and immunities secured by federal law); Cuyler v.

Adams, —— U.S. ——, 101 S.Ct. 703, 712-713, 66

L.Ed.2d 641 (1981) ($1983 provides remedy for rights

enjoyed by state prisoners under Detainer Agreement) ;

Kennecott Corp. v. Smith, 637 F.2d 481 (CCH) Fed.See.

L.Rep. 97,731 n.5 (3d Cir. 1980) (§ 1983 protects

rights protected by Williams Act); Holmes v. Finney,

631 F.2d 150, 154-55 (10th Cir. 1980) ($ 1983 provides

remedy to persons deprived of a federal right); Mrazek

v. Suffolk County Bd. of Elections, 630 F.2d 890, 899

(2d Cir. 1980) (§ 1983 secures persons against depriva-

tion of rights and privileges created under law of United

States).

As to § 503, the plaintiff failed to state a cause of ac-

tion under § 1983 because, as explained above, § 503 con-

fers no substantive rights upon handicapped persons.

Whether or not Meyerson is a protected beneficiary un-

der § 504 will determine whether or not § 504 confers

upon him any substantive federal rights. As for the

Revenue Sharing Act claim, Congress has provided a

remedy under 31 U.S.C. § 1244. In Great American Fed-

eral Savings & Loan Ass'n v. Novotny, 442 U.S 366, 373-

78, 99 S.Ct, 2345, 2349-52, 60 L.Ed.2d 957 (1979), the

Supreme Court held that the remedial provisions of 42

U.S.C. §1985(c) cannot be invoked to redress violations

of Title VII because the latter contains its own enforce-

ment scheme. See also Thiboutot v. Maine, 100 S.Ct. at

2513 n.11 (Powell, J., dissenting). Similarly, the re-

medial provision of § 1983 cannot be used to circumvent

the remedial provisions of the Revenue Sharing Act.

23a

IT IS ORDERED:

1. The defendants’ motion for summary judgment is

granted as to the plaintiff's claim under § 503 of the

Rehabilitation Act.

2. The defendants’ motion for summary judgment is

denied without prejudice as to plaintiff’s claims under

$504 of the Rehabilitation Act and 42 U.S.C. § 19838.

3. The plaintiff's claim under the Revenue Sharing

Act is dismissed without prejudice because of the plain-

tiff’s apparent failure to exhaust his administrative

remedies.

24a

UNITED STATES DISTRICT COURT

D. ARIZONA

Civ. No, 80-715 Phx. WPC

LEE MEYERSON,

Plaintiff,

THE STATE OF ARIZONA; ARIZONA BOARD OF REGENTS;

RALPH M. BILBY; RupDY E. CAMPBELL; ESTHER N,

CAPIN; EARL H, CARROLL; THOMAS CHANDLER; WIL-

LIAM G. PAYNE; WILLIAM P. REILLY; Tio A. TACHIAS;

RENEE MARLER; JOHN SCHWADA; PAIGE E. MULHOL-

LAN; KARL H. DANNENFELDT; JOYCE FosTER; GUIDO

WEIGEND; AUSTIN JONES; LEONARD D. GOODSTEIN;

PETER KILLEEN; JOHN DOES I THRU V; and JANE DOES

I THRU V,

Defendants.

Oct. 28, 1981

Charles D. Roush of Treon, Warnicke, Dann & Roush,

Phoenix, Ariz., for plaintiff.

Stephen K. Smith, Phoenix, Ariz., for defendants.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Plaintiff was hired as a psychology professor by Ari-

zona State University in 1962. He is essentially totally

deaf and suffers from a hip ailment resulting from a

childhood disease. He filed a complaint on September 4,

1980, alleging that defendants had discriminated against

him because of his handicap, in a variety of ways.

25a

There are two claims at issue here. First, plaintiff

claims that defendants, under color of state authority, de-

prived him of rights secured by federal law, in violation

of 42 U.S.C. § 1983 (1976). Second, he claims that due

to his handicap he was subjected to discrimination under

a federal program or activity, in violation of § 504 of the

Rehabilitation Act, 29 U.S.C. § 794 (Supp. 1976-1980).

This Court previously held that to state a claim under

$1983, plaintiff must show that he has been deprived of

a federally protected right, independent of § 1983. Mey-

erson v. State of Arizona, 507 F.Supp. 859, 864 (D.Ariz.

1981). Plaintiff requests that this Court reconsider that

decision. In addition, the parties have filed cross motions

for summary judgment, regarding plaintiff's claim under

§ 504 of the Rehabilitation Act.

Initially, this Court reaffirms it’s previous decision

concerning the $1954 claim. It is clear that £1983 is

purely a remedial statute; it provides no substantive

rights. Chapman v. Houston Welfare Rights Organiza-

tion, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60

L.Ed.2d 508 (1979). In order to have an action under

$1983 there must be a violation of a separate federal

statute, and this statute must confer a federal right.

See, Maine v. Thiboutot, 448 U.S. 1, 5, 8 n.6, 100 S.Ct.

2502, 2504, 2506 n.6, 65 L.Ed.2d 555 (1980); Holmes v.

Finney, 631 F.2d 150, 154-55 (10th Cir. 1980). Thus,

plaintiff must establish a cause of action under § 504

of the Rehabilitation Act, in order to have an action

under § 1983. Consequently, the cross motions for sum-

mary judgment under § 504 of the Rehabilitation Act are

determinative.

It is well establisied that summary judgment is only

appropriate when there are no genuine issues of ma-

terial fact, and one party is entitled to judgment as a

matter of law. Poller v. Columbia Broadcasting System,

Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458

(1967) ; Fed.R.Civ.P. 56(c).

26a

Section 504 of the Rehabilitation Act provides that an

otherwise qualified handicapped individual shall not

“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 receiv-

ing Federal financial assistance... .”” 29 U.S.C. § 794

(Supp. 1976-1980).

This Court must determine whether the two. prerequi-

sites to a $504 claim have been met, regardless of the

merits of plaintiff's claim. The first requirement is that

plaintiff must benefit directly or indirectly from a fed-

erally funded program or activity. Simpson v. Reynolds

Metals Co., 629 F.2d 1226, 1232 (7th Cir. 1980). The

discrimination must be “in connection with” a federally

funded program or activity. Jd. Thus, to be actionable,

the discrimination must “come in the operation of the

program or manifest itself in a handicapped individual's

exclusion from the program or a diminution of the bene-

fits he would otherwise receive from the program” 7d.

Thus, the nature of the federal grants must be ascer-

tained. It appears that the only federal funds received by

the psychology department of Arizona State University

were instructional and research grants given to the in-

dividual professors. Next, it must be determined whether

plaintiff has “any connection with” these federal funds.

The only link he has with such funds is in connection

with his claim that defendants prevented him from ob-

taining these federal grants. Thus, only under this claim

for relief does plaintiff benefit directly or indirectly from

a federally funded program or activity. His claims of in-

sufficient space, equipment, responsibility, and authority

are completely unrelated to the federal funds.

In any event, even if all the grants were not to the

individual professors, the second requirement of a § 504

claim is likewise not met. Claims of discrimination un-

der § 504 cannot be maintained unless a primary objec-

tive of the federally funded program is to provide em-

27a

ployment. Carmi v. Metropolitan St. Louis Sewer Dis-

trict, 620 F.2d 672, 674-75 (8th Cir. 1980), cert. denied

449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980);

Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d

87, 88-89 (4th Cir. 1978), cert. denied 442 U.S. 947, 99

S.Ct. 2895, 61 L.Ed.2d 318 (1979); Sabol v. Board of

Education of Township of Willingboro, 510 F.Supp. 892,

894-99 (D.N.J. 1981). Contra, Hart v. County of Ala-

meda, 485 F.Supp. 66, 71-73 (N.D.Cal. 1979).

In this instance employment was not a primary objec-

tive of the federal funds. The primary objective of the

instructional grants was to obtain instruction for stu-

dents. See, Sabol, supra at 895. The primary objective

of the research grants was to obtain information. Al-

though the funds happened to result in some employment,

this was not one of their primary objectives. If employ-

ment was held to be a primary objective of a federal

grant, just because the grant results in substantial em-

ployment, then almost all federal grants would have em-

ployment as a primary objective.

IT IS ORDERED:

1. Plaintiff's motion for reconsideration is denied.

2. Plaintiff’s motion for summary judgment is denied.

3. Defendants’ motion for summary judgment is

granted. The Clerk will enter judgment accordingly de-

nying all relief, pursuant to Rule 58 Fed.R.Civ.P.

28a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Civil Action File No. 80-715 Phx. WPC

LEE MEYERSON,

Plaintiff,

THE STATE OF ARIZONA, et al.,

Defendarts.

JUDGMENT

This action came on for (hearing) before the Court,

Honorable WM. P. CopPLE, United States District Judge,

presiding, and the issues having been duly (heard) and

a decision having been duly rendered,

It is Ordered and Adjudged

1. Plaintiff's motion for reconsideration is denied.

2. Plaintiff's motion for summary judgment is

denied.

3. Defendants’ motion for summary judgment is

granted.

Dated at Phoenix, AZ., this 28th day of October, 1981.

W. J. FURSTENAU

Clerk of Court

By: /s/ F. Daudet

F. DAUDET

Deputy Clerk

ee to:

Stephen K. Smith

Charles D. Roush

29a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5996

D.C. No. 80-715

LEE MEYERSON,

Plaintiff-A ppellant,

—Vs—

THE STATE OF ARIZONA:

ARIZONA BOARD OF REGENTS, et al.,

Defendants-A ppellees.

Appeal! from the United States District Court

for the District of Arizona

Before: WALLACE and FERGUSON, Circuit Judges,

and GRANT,* District Judge

ORDER

[Filed July 22, 1983]

The panel as constituted above has voted to deny the

petition for rehearing; Judges Wallace and Ferguson

have voted to reject the suggestion for rehearing en

bane, and Judge Grant made no recommendation on the

suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the sugges-

tion for rehearing en banc is rejected.

* Honorable Robert A. Grant, United States District Judge,

Northern District of Indiana, sitting by designation.

80a

29 U.S.C. § 794a Remedies and attorney fees

‘ai(1) The remedies, procedures, and rights set forth

in section 717 of the Civil Rights Act of 1964 [42

U.S.C.A. § 2000e-16], including the application of sec-

tions 706(f) through 706(k) [42 U.S.C.A. § 2000e-5(f)

through (k)], shall be available, with respect to any

complaint under section 791 of this title, to any employee

or applicant for employment aggrieved by the final dis-

position of such complaint, or by the failure to take final

action on such complaint. In fashioning an equitable or

affirmative action remedy under such section, a court

may take into account the reasonableness of the cost of

any necessary work place accommodation, and the avail-

ability of alternatives therefor or other appropriate re-

lief in order to achieve an equitable and appropriate

remedy.

(2) The remedies, procedures, and rights set forth in

title VI of the Civil Rights Act of 1964 [42 U.S.C.A.

2000d et seq.] shall be available to any person aggrieved

by any act or failure to act by any recipient of Federal

assistance or Federal provider of such assistance under

section 794 of this title.

(b) In any action or proceeding to enforce or charge

a violation of a provision of this subchapter, the court,

in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as

part of the costs.

42 U.S.C. § 2000d-3 Construction of provisions not to

authorize administrative action with

respect to employment practices ex-

cept where primary objective of

Federal financial assistance is to

provide employment

Nothing contained in this subchapter shall be con-

strued to authorize action under this subchapter by any

department or agency with respect to any employment

practice of any employer, employment agency, or labor

organization except where a primary objective of the

Federal financial assistance is to provide employment.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.