Opposition Brief — DeVargas v. Mason & Hanger-Silas Mason Co.

Sureme Court, US,

FILED

CY) DEC 19 1999

No. 90-720 JOSEPH F. SPANIO‘W, J

__ CLERK

In the

Supreme Court of the United States

October Term, 1990

ALFREDO DeVARGAS,

Petitioner,

MASON & HANGER-SILAS MASON CO., INC.;

T. R. HOOK; DON HARDWICK; DONALD KERR;

ROBERT POGNA; and ED C. WALTERSCHEID,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

JosepH E. EARNEST

(Counsel of Record)

MONTGOMERY & ANDREWS, P.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(505) 982-3873

LauriE A. VOGEL

CHERPELIS VOGEL AND SaALazar, P.A.

Post Office Box 37380

Albuquerque, New Mexico 87176-7380

(505) 265-7825

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

La

QUESTIONS PRESENTED

In addition and in the alternative to the question set forth

in the Petition:

Whether judgment in favor of the respondents should be

affirmed even if the Civil Rights Restoration Act of 1987

applies retroactively, thereby making it unnecessary to reach

the question of retroactive application?

Resolution of this question involves the following ques-

tions:

1. Whether Mason & Hanger-Silas Mason Co., Inc. is a

“recipient” of federal financial assistance or part of the “oper-

ations” of the Regents of the University of California?

2. Whether judgment should be affirmed on the ground

that the contracts at issue are not awards of assistance and do

not create a basis for liability under § 504 of the Rehabilita-

tion Act of 1973, when judgment was affirmed by the Court

of Appeals in favor of the Respondents Mason & Hangcr-

Silas Mason Co., Inc., Hook, and Hardwick on this ground

independently of consideration of retroactive application of

the Civil Rights Restoration Act of 1987?

3. Whether an action for damages (the only relief

arguably remaining) can be maintained against the respon-

dents under § 504 of the Rehabilitation Act of 1973 or 42

U.S.C. § 1983 (1988) on the basis of the record in this case?

Included in this question are the following questions:

a. Whether the federal regulation at issue is mandatory

in nature and does not provide for a discretionary review?

b. Whether the record establishes a lack of intentional

discrimination on the part of the respondents or whether the

ii

QUESTIONS PRESENTED - Continued

respondents are entitled to an extension of the grant of quali-

fied immunity entered by the Court of Appeals to the current

claims under 42 U.S.C. § 1983 (1988) and § 504 of the

Rehabilitation Act of 1973.

iii

RULE 28.1 LISTING

Respondent Mason & Hanger-Silas Mason Co., Inc.

(“Mason & Hanger”) is incorporated under the laws of the

State of West Virginia. The parent corporation of Mason &

Hanger is The Mason Company. Mason & Hanger has four

subsidiary corporations that are not wholly owned by it:

Benchmark Electronics, Inc.; Mason & Hanger Service, Inc.;

Mason & Hanger Nauonal, Inc.; and Mason Chamberlain, Inc.

In addition, Mason & Hanger has one affiliated corporation

that is not wholly owned by it or its parent corporation:

Duchossois Industries, Inc.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................. 00000. vi

OPINIONS BELOW ............0000c0ccceceeeeeeees

STATUTES AND REGULATIONS INVOLVED........ 2

STATEMENT OF THE CASE ................-0-000- 3

Bes I ES 5 oo was ee wo Ves buveunvescquns 3

1. The Federal Facility, Procurement Contracts,

SRG TEORUEMIIINS BE TORU oi occ cbc nei vsescees 3

2. DeVargas’ Application for Employment....... 6

I SE oo ons vee ee takes trsctiei seas 9

REASONS FOR DENYING THE WRIT.............. 12

I. THE OPINION OF THE COURT OF APPEALS

WITH REGARD TO THE APPLICATION OF THE

RESTORATION ACT IS CORRECT AND, IN ANY

EVENT, IS ONE OF VERY LIMITED IMPACT... 12

Il. THE SAME RESULT SHOULD BE REACHED

REGARDLESS OF RETROACTIVE APPLICA-

TION OF THE RESTORATION ACT............ 15

A. Mason & Hanger Is Neither a “Recipient” of

Federal Financial Assistance Nor Part of the

“Operations” of the University .............. 15

B. Judgment Should Be Affirmed on the Ground

That the Contracts at Issue Are Not Awards of

Assistance and Do Not Create a Basis for Lia-

eee GP Pe ob oe iccac suse ee ib aune ees 20

Page

1. Judgment Was Entered in Favor of the

Mason & Hanger Respondents on Grounds

Independent From the Consideration of the

Retroactive Application of the Restoration

A 6 On ee re ee 21

2. Judgment Below Should be Affirmed for

the University Respondents on the Same

Ground as That for the Mason & Hanger

ce ey Pee ee eee Cee 21

C. An Action for Damages Under § 504 or § 1983

Cannot Be Maintained Against the Respondents

on the Basis of the Record in This Case..... 22

1. Mason & Hanger Properly Followed a Fed-

eral Regulation Mandatorily Prohibiting the

Employment of One-Eyed Individuals as

Security Inspectors at Federal Facilities .. 23

2. Respondents Did Not Intentionally Discrim-

inate Against the Petitioner and Are Enti-

tled to Qualified Good Faith Immunity... 26

COPICLUGIIN cca ce Silas ke) 555445 ee 30

Appendix Submitted as Separate Document

vi

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987)........... 28

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

CIDGED vc cccccvcaercenegeseseervers sete 14

Bradley v. Richmond School Bd., 416 U.S. 969 (1974) .... 14

Brown vy. Sibley, 650 F.2d 760 (Sth Cir. 1981) ......... 28

Carter v. Orleans Parish Pub. Schools, 725 F.2d 261

(Se Civ. 1905) GOP GEPGMIIK occ ccccvevebsvcbecncees 27

Chaplin v. Consolidated Edison Co., 587 F. Supp. 519

(S.DDIS: TOWED ccvesvecevetuvenvestsverecusseeece 24

Consolidated Rail Corp. v. Darrone, 465 U.S. 629

CIDOS) 6 oc vdwenses¥eds esses 26, 27, 28

Cousins v. Secretary of United States Dep't of

Transp., 880 F.2d 603 (1st Cir. 1989) (en banc) ..... 23

Eivens v. Adventist Health Sys./E. & Middle America,

fac., 630 F. Sapp. SOS GE. BR, Tepes cb vtavecsses 20

Georgia State Conf. of Branches of NAACP v. Geor-

gia, Tis Fc TOS (iC Ga. Bee ce craceave cases 27

Grove City College v. Bell, 465 U.S. 555 (1984)....... 28

Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582

(39GS) . sa vc'ccwteeeeenbes been eee 26, 27

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..... 27, 28, 29

Jackson v. Maine, 544 A.2d 291 (Me. 1988), cert.

denied, 109 S. Cr. SIGS Chibi scccceecirmiasseiaeee 24

Vii

Page

Jeldness v. Watson, 857 F.2d 1478 (9th Cir. 1988)

(unpubl. table opin.) (WESTLAW, CTA database) .... 13

Kaiser Aluminum & Chem. Co. v. Bonjorno, 110 S.

CR, SR Ge aa + kon eddesbudevececue see aGhuencses 14

Kohl v. Woodhaven Learning Center, 865 F.2d 930,

(8th Cir.), cert. denied, 110 S.Ct. 239 (1989)........ 13

Marvin H. v. Austin Indep. School Dist., 714 F.2d

See Core Gay Ci crac cb eeeesepertrivebescessuns 29

Monell v. Department of Social Serv., 436 U.S. 658

(CUP AED cicinwedrventessedebsuctaceeccvesisererssyes 24

O'Keefe v. Niagara Mohawk Power Corp., 714 F.

SUD: Ge Ge ee HN ee caw en pee hes cekvda bene 19

Pfeiffer v. Marion Center Area School Dist., 59

U.S.L.W. 2294 (3d Cir. Oct. 30, 1990) (WEST-

LDU y CPU Wie EMBDOUD cr cccviserreccsecreseseeees 13

Rizzo v. Goode, 423 U.S. 362 (1976).............0008s 24

Simpson v. Reynolds Metals Co., 629 F.2d 1226 (7th

CO FOE Rr bere kb becesbhbeuuneeevescddoneuneuveess 28

Timms v. Metropolitan School Dist., 722 F.2d 1310

CPR Ges CUR Sneccesbb nel ae seri veers eesn eect nuaen 27

United States Dep't of Transp. v. Paralyzed Veterans

of America, 477 U.S. 597 (1986) ............ 18, 19, 20

United States v. Larionoff, 431 U.S. 864 (1977)........ 26

Statutes, REGULATIONS, AND RULES

G2 Uma GS Tee Cee xc wcewincess 9, 10, 22, 27, 28, 29

Administrative Procedure Act, as amended 5 U.S.C.

i: PRO Tee CEES a ds &v oenad cea ca ees teen eeranee 23

Vili

Page

Atomic Energy Act of 1954, as amended 42 U.S.C.

Se Ns PE COMER ch bab eeavscnceccasecees 11

Civil Rights Restoration Act of 1987, Pub. L. No.

100-259, 102 Stat. 28 (Mar. 22, 1988) .......... passim

Physical Protection of Sécurity Interests, 10 C.F.R. pt.

a SE ee nr eer eee 2, 5, 6, 8

Rehabilitation Act of 1973, as amended

ee 2 8 oa ee | errr passim

Be Me gis 2 oe Bi | eee eee eee ee 26

Ss ee EE Be gs ctu G NK bNGN aed SVenSt Roce beeeease 15

United States Department of Energy Interim Manage-

ment Directive No. 6102, Appendix IV, “Protective

Personnel” (Jan. 31, 1978)

cheadeyvovan ss 2, 4, 5, 7, 8, 9, 10, 11, 22, 23, 25, 26, 27

LeGistative History AND CONGRESSIONAL HEARINGS

Hearings Before the Subcomm. on Procurement and

Military Nuclear Systems of the House Comm, on

Armed Services (Jan. 9, 1981)............05. 3-4, 5, 17

S. Rep. No. 64, 100th Cong., Ist Sess. (1987)..... 19, 20

No. 90-720

In The

Supreme Court of the United States

October Term, 1990

ALFREDO DeVARGAS,

Petitioner,

Vv.

MASON & HANGER-SILAS MASON CO.,

INC.; T. R. HOOK; DON HARDWICK;

DONALD KERR; ROBERT POGNA;

and ED C. WALTERSCHEID,

Respondents.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

All respondents hereby respectfully urge the Court to

deny the issuance of the writ of certiorari sought by the

petitioner. In the alternative that the Court were to choose to

review the judgment below, respondents urge that a writ of

certiorari should be issued only with respect to Respondents

Kerr, Pogna, and Walterscheid and only for the purpose of

summary affirmance or remand to the Court of Appeals.

OPINIONS BELOW

This action was resolved below by a scrics of partial

summary judgments and two appeals. The operative facts of

a

the case were recognized primarily in one opinion by the

District Court and one by the Court of Appeals, neither of

which are included in the Appendix to the Petition.! The

Memorandum Opinion and Order of the District Court entered

on October 21, 1986, is set forth in the Appendix to this

Brief? at la-lla, and the Opinion of the Court of Appeals

entered on April 7, 1988, and reported at 844 F.2d 714 is set

forth in the Appendix to this Brief at 13a-43a.

STATUTES AND REGULATIONS INVOLVED

Section 504 of the Rehabilitation Act of 1973, as

amended 29 U.S.C. § 794 (1988) [hereinafter § 504], is set

forth in full in the Appendix to this Brief at 45a-47a. The

relevant language of the Civil Rights Restoration Act of 1987,

Pub. L. No. 100-259, 102 Stat. 28 (Mar. 22, 1988) [hereinaf-

ter the Restoration Act], is incorporated into the current

version of § 504. United States Department of Energy Interim

Management Directive No. 6102, Appendix IV, “Protective

Personnel” (Jan. 31, 1978) [hereinafter IMD 6102], which

was the basis for the action taken by respondents, is set forth

in the Appendix to this Brief at 49a-112a. The reguiations

which superseded IMD 6102 in 1984, Physical Protection of

Security Interests, 10 C.F.R. pt. 1046 (1990), are set forth in

the Appendix to this Brief at 114a-134a.

' The Appendix contained in the Petition will be cited herein as

“Pet. App.”

2 The separate Appendix to this Brief will be cited herein as “Br.

App.”

STATEMENT OF THE CASE

A fairly lengthy statement of facts and proceedings

below is necessary to clarify the basis for the issues before

the Court.

A. Statement of Facts

The facts stated herein are those established in the record

below for purposes of the orders granting summary judgment

by uncontradicted affidavits, authenticated documents, con-

gressional hearings, deposition testimony, and discovery

responses.

1. The Federal Facility, Procurement Contracts, and

Regulations at Issue

The Regents of the University of California (the “Univer-

sity”) operate facilities at Los Alamos National Laboratory

(the “Laboratory”) on behalf of the United States Department

of Energy (“DOE”), pursuant to a prime procurement contract

between DOE and the University. The Laboratory is a DOE

facility covering approximately 40,069 acres of rough,

heavily forested, mountainous terrain. The Laboratory is

involved in atomic weapons development and research, as

well as other scientific and highly classified research.

Mason & Hanger-Silas Mason Co., Inc. (“Mason &

Hanger”) is a West Virginia corporation. Mason & Hanger

provides security personnel at several government sites

around the country.

Prior to May 1981, security at the Laboratory was pro-

vided by a federally employed security force. The Hearings

Before the Subcommittee on Procurement and Military

Nuclear Systems of the House Committee on Armed Services

(Jan. 9, 1981) [hereinafter the Hearings|> involved the trans-

fer of security functions from the then federally employed

service tO a private contractor. Those Hearings detail the

nature and history of the security force at the Laboratory; the

analysis that led the government to investigate private con-

tracting and to conclude-that it was financially beneficial to

obtain security personnel from a private contractor; and the

selection of Mason & Hanger through competitive proposals.

On May 6, 1981, the University and Mason & Hanger

entered into a subcontract, under which Mason & Hanger

assumed employment of members of the previously federally

employed security force at the Laboratory and began fur-

nishing an enhanced security force for the protection of the

Laboratory. The subcontract requires Mason & Hanger to

employ, train, and provide security personnel for the protec-

tion of the Laboratory. The only function that Mason &

Hanger provides at the Laboratory is the provision of security

personnel pursuant to the subcontract. All funds or other

benefits received by Mason & Hanger for the provision of

security personnel at the Laboratory are received pursuant to

this subcontract.

The subcontract delegates and charges Mason & Hanger

with the responsibility of applying and enforcing DOE regula-

tions relative to the provision of security forces at the Labora-

tory. In the period from May 1981 until November 1984, IMD

6102 was Appendix M to the subcontract, and Mason &

Hanger was required both by federal regulation and by the

3 The transcript and exhibits of the Hearings are part of the record

below.

subcontract to employ only personnel who met the require-

ments of IMD 6102.

Both IMD 6102 and the 1984 successor regulations pro-

vide for two distinct positions for security personnel — guards

and security inspectors. The two positions have different

responsibilities and have different medical and physical quali-

fications. Security inspectors have to be able to defend both

the physical facilities and the security of the Laboratory from

possible “terrorist attack, sabotage, espionage, theft and inter-

nal diversion.” Hearings at 9. Accordingly, all security

inspectors have to be capable of, among other things, foot and

motor patrols, responding to industrial and forest fires, han-

dling special nuclear materials, and combatting sophisticated

terrorist groups. /d. at 9-10. Because of the highly sensitive

nature of the Laboratory, only security inspectors are

deployed there — there are no guard positions available at the

Laboratory.

Although IMD 6102 permitted one-eyed individuals to be

employed as guards, § A.9.b(5) (Br. App. at 72a), it manda-

torily disqualified one-eyed individuals from the position of

security inspector, § A.6.b(8) (Br. App. at 67a). IMD 6102

contained no provision for a medical or practical test to obtain

a waiver of the medical disqualification of having sight in

only one cye. It only provided for medical review of condi-

tions in which the degree of the medical disqualification was

at issuc. See § A.6.c (Br. App. at 68a-69a).

In December 1984, IMD 6102 was superseded by new

regulations governing the employment of security personnel

at DOE facilities. The successor regulations added a provision |

that allows DOE (not the contractor) to issue a waiver of the

medical disqualification of having sight in only one eye, if the

applicant is otherwise fully qualified and “demonstrates by

medical examination and/or practical test . . . the ability to

perform effectively and safely all routine and emergency

duties.” 10 C.F.R. pt. 1046, app. A § G(1)(b) (Br. App. at

129a-130a). The 1984 successor regulations further provide

for review of such waivers and administrative appeal within

DOE for aggrieved individuals. /d., app. A § G(1)(d)-(e) (Br.

App. at 130a).

2. DeVargas’ Application for Employment

The petitioner, Alfredo DeVargas, has sight in only one

eye. In November 1981, DeVargas submitted an application to

Mason & Hanger for employment as a security inspector in

response to a job description issued by Mason & Hanger. It is

factualiy disputed whether a position was actually available at

that time and whether DeVargas would have been otherwise

qualified for a position as a security inspector, if a position

were available.* Respondents have stipulated to availability

* DeVargas’ recitation of his qualifications and statement that they

are “undisputed in the record” (Pet. at 4-5) is erroneous. Respondents had

included in their motion for summary judgment on the second amended

complaint, an issue that DeVargas was not “otherwise qualified.” The

supporting evidence to that motion shows that, because of the significant

security concerns involved, Mason & Hanger required employees to list

all prior employment which was investigated in detail. The evidence

further shows that DeVargas had discretionarily omitted prior employers

in his application; that DeVargas had been officially reprimanded as a

police officer for failure to appear for work, for insubordination, and for

failure to follow required rules, and that those reprimands had resulted in

his resignation as a police officer; and that DeVargas illegally used

controlled substances. These matters would have disqualified DeVargas

from further consideration. In addition, all applicants would have to

obtain a security clearance from DOE, a matter over which respondents

(Continued on following page)

of the position and DeVargas’ qualifications, however, solely

for purposes of their motions for summary judgment on which

judgment below is based.

DeVargas’ application states on its face that he had lost

sight in one eye. At the time he submitted his application,

De Vargas requested to speak with someone at Mason &

Hanger regarding the possibility of a job. Respondent Hook,

then Administrative Manager of Mason & Hanger, in review-

ing De Vargas’ application prior to meeting with him, consul-

ted with Robert E. Everhart, Chief of Security for Mason &

Hanger, and Respondent Hardwick, then Mason & Hanger’s

Contract Manager, concerning whether a one-eyed applicant

could be employed as a security inspector. They concluded

that IMD 6102 mandatorily disqualified one-eyed individuals

from positions as security inspectors. Hook then informed

DeVargas that he was disqualified from employment as a

security inspector. At De Vargas’ request, Hook subsequently

sent a letter to De Vargas specifying the basis for the disqual-

ification.

More than a year later, in March 1983, DeVargas’

counsel sent a letter to Mason & Hanger requesting that it

(Continued from previous page)

have no control. Because of agreement between counsel as to a discovery

matter, however, the District Court was requested not to rule on the issue

of qualifications at that time. Summary judgment was subsequently

rendered on other issues.

The record also reflects that, prior to 1981, De Vargas had been given

a ‘““4-F” status by the armed forces because of his lack of sight in one eye

and, accordingly, never served in the miliiary. Since his application to

Mason & Hanger, DeVargas has been denied employment by a private

trucking firm because of Department of Transportation regulations that

prohibit one-eyed individuals from driving trucks hauling hazardous

materials.

reconsider hiring DeVargas.> At that time, Hook, Everhart,

and Hardwick again discussed the provisions of IMD 6102

and again concluded that it mandatorily disqualified one-eyed

applicants from employment as security inspectors. This time,

Hook also contacted Respondent Pogna, a University

employee who was then the Laboratory's Assistant Division

Leader for the Security and Safeguards Division, to ensure

that Mason & Hanger’s interpretation of IMD 6102 was in

accordance with that of the Laboratory. In response to the

inquiry, Pogna asked Respondent Walterscheid, who is also a

University employee and Deputy Laboratory Counsel, for his

opinion as to whether IMD 6102 mandatorily disqualified a

one-eyed individual from employment as a security inspector.

Walterscheid informed Pogna that he interpreted the disqual-

ification to be mandatory and not subject to review. Shortly

after consulting with Walterscheid, on April 1, 1983, Pogna

sent a memorandum to Hardwick setting forth Walterscheid’s

opinion. Upon receipt of the memorandum, Hardwick sent

word through Mason & Hanger’s counsel to De Vargas’ coun-

sel that Mason & Hanger maintained its position that

De Vargas was disqualified from employment under IMD

6102.6

DeVargas never reapplied for a position as a security

inspector under the 1984 successor regulations to IMD 6102,

> Contrary to his assertion (Pet. at 5), De Vargas never reapplied for

the position, in 1983 or thereafter.

© Respondent Kerr was also a University employce in 1983 and was

then Director of the University’s operations at the Laboratory. Kerr had

no involvement in, or knowledge of, the events relative to De Vargas’

application.

under which medically disqualified but otherwise fully quali-

fied applicants may be considered for waiver by DOE.

B. Proceedings Below

This action was initially filed on November 8, 1983.

Defendants below were the current respondents plus the Uni-

versity, DOE, certain officials and employees of DOE, and

fictitious individuals. After discovery and preliminary

motions, on July 26, 1984, the District Court granted

DeVargas’ request to file an amended complaint. The first

amended complaint alleged violations of § 504, violations of

42 U.S.C. § 1983 (1988) [hereinafter § 1983], and direct

violations of various provisions of the Constitution. With

regard to the basis for his § 504 action, DeVargas pleaded

solely that the prime contract and subcontract were in fact

awards of assistance and therefore subjected the University

and Mason & Hanger to § 504 liability. With regard to IMD

6102, De Vargas alleged that he was entitled tc a waiver of his

disqualification and that all of the defendants discriminated

against him in denying that waiver.’

After further discovery, on October 10, 1984, defendants

filed a comprehensive consolidated motion to dismiss and for

summary judgment, along with certain other motions on par-

ticular procedural and jurisdictional matters. On April 9,

1986, the District Court entered a Memorandum Opinion and

Order which, among other things, dismissed the § 504 claim

? DeVargas alleged discrimination on the basis of handicap, national

origin, freedom of association, and speech, as well as a conspiracy among

all the defendants, as the reasons that defendants refused to process his

application.

10

and the derivative § 1983 claim based on § 504 on the basis

that the contracts at issue were not awards of assistance. (Pet.

App. at 2a-10a).

Because the District Court had denied defendants’

motion for summary judgment, on June 9, 1986, all remaining

defendants filed a supplemental motion, urging the District

Court to reconsider its earlier ruling and to grant summary

judgment in favor of all defendants on the grounds of quali-

fied good faith immunity. On October 21, 1986, the District

Court entered a second Memorandum Opinion and Order,

finding that the facts established in the record supported

qualified good faith immunity as to all of DeVargas’ § 1983

claims and granting summary judgment on that basis to all

DOE and University employees. (App. at 3a-6a). The District

Court, however, denied qualified good faith immunity to

Mason & Hanger and all Mason & Hanger employees on the

basis of lack of governmental status. (App. at 6a-8a).

Following that ruling, the Mason & Hanger defendants

filed a collateral order appeal to the Court of Appeals. On

April 7, 1988, the Court of Appeals entered an opinion

affirming the grant of qualified good faith immunity and

extending it to all defendants. 844 F.2d at 718-25 (Br. App. at

24a-43a). In the course of its opinion, the Court of Appeals

held that IMD 6102 § A.6.b(8) stated a mandatory disqual-

ification that was not subject to waiver. 844 F.2d at 725 (Br.

App. at 41a-42a).

In the meantime, however, fairly extensive discovery had

been taken in the District Court proceedings and, on April 4,

1988, three days before the Court of Appeals ruled on the

qualified good faith immunity appeal, De Vargas was allowed

to amend his complaint again.

11

On May 20, 1988, defendants filed a consolidated motion

for summary judgment directed to all of the claims in the

second amended complaint. On December 14, 1988, the Dis-

trict Court entered a Memorandum Opinion and Order dis-

missing the case in its entirety. (Pet. App. at 29a-39a). In this

opinion, the District Court recognized the Court of Appeals’

holding, and held, itself, that IMD 6102 § A.6.b(8) was

mandatory and not subject to waiver. (Pet. App. at 37a-38a).

Throughout the proceedings in both the District Court

and the Court of Appeals, De Vargas argued the existence of

§ 504 liability based solely on his contention that the prime

contract and the subcontract were awards of assistance under

the Atomic Energy Act of 1954, as amended 42 U.S.C.

§§ 2011-2013, 2051 (1988). (See Pet. App. at 2a-8a, 48a-50a).

At no time in the proceedings before the District Court, in his

docketing statement, in his briefing on appeal, or in his oral

argument in March 1990 did DeVargas mention the Restora-

tion Act or any of the changes in § 504 made by the Restora-

tion Act.8 DeVargas first raised this issue in a letter to the

Court of Appeals filed after oral argument.?

8 Indeed, the version of § 504 that was set forth and briefed in both

DeVargas’ appellate brief and the federal defendants’ appellate brief

(cross-adopted on the § 504 issue below by respondents) was the pre-

Restoration Act version.

9 DeVargas’ letter to the Court of Appeals following argument

erroneously premises its propriety on a claim that counsel for respondents

iaised the issue of program specificity in oral argument. What counscl

pointed out to the Court of Appeals on argument was that the University

and Mason & Hanger are different entities, a matter discussed below (at

15-20) that goes beyond program specificity and does not implicate the

retroactive application of the Restoration Act.

12

Because the issue of retroactive application of the Resto-

ration Act was raised by letter after oral argument, neither

respondents nor the federal defendants, who were represented

before the Court of Appeals by counsel from the United States

Department of Justice, had the opportunity to make a presen-

tation to the Court of Appeals on the issue of retroactive

application of the Restoration Act or possible alternatives to

that issue.

The Court of Appeals affirmed judgment on all grounds.

It chose to approach the § 504 issue on two different bases.

First, it held that the Mason & Hanger defendants — Respon-

dents Mason & Hanger, Hook, and Hardwick — were not liable

because Mason & Hanger did not receive federal financial

assistance through its contract within the meaning of § 504.

911 F.2d at 1382-83 (Pet. App. at 48a-50a). Then, it went on

to decide the application of § 504 to the University defen-

dants — Respondents Kerr, Pogna, and Walterscheid — and to

the remaining federal defendant — Gary Granere, not named as

a respondent here — on the basis that the Restoration Act is

not subject to retroactive application. 911 F.2d at 1383-93

(Pet. App. at 51la-72a).

REASONS FOR DENYING THE WRIT

I. THE OPINION OF THE COURT OF APPEALS

WITH REGARD TO THE APPLICATION OF THE

RESTORATION ACT IS CORRECT AND, IN ANY

EVENT, IS ONE OF VERY LIMITED IMPACT.

Respondents fully support the decision of the Court of

Appeals that the Restoration Act does not have retroactive

effect and urge that it is correct in its result. Respondents can

13

add little to the original, well-reasoned, and impressively

thorough decision of the Court of Appeals on this point.

By its very logic and application, however, the decision

of the Court of Appeals is limited to the Restoration Act,

itself. The holding requires and undertook a searching review

of the language and legislative history of the particular statute

at issue. 911 F.2d at 1385-88 (Pet. App. at 53a-62a). Although

respondents do not have access to any sort of index by which

they can quantify a precise number of cases, it is reasonable

to presume that only a very few cases remain to which the

question of retroactivity of the Restoration Act could apply.!°

Thus, although there is a split in the Circuits on this issue, the

actual application and influence of the decision below will

likely be quite limited."!

Although DeVargas argues that the Court of Appeals’

decision is inconsistent with congressional intent (Pet. at

14-16), the holding of the Court of Appeals speaks for itself

in this regard, having diligently searched and found there to

be no clear congressional intent in the language and history of

'0 A search on Westlaw for all cases using the term, “Restoration

Act,” located only two instances wherein Courts of Appeals have

remanded cases to district courts for consideration of whether the Resto-

ration Act applies retroactively: Kohl v. Woodhaven Learning Center, 865

F.2d 930, 941 n.7 (8th Cir), cert. denied, 110 S.Ct. 239 (1989), and

Jeldness v. Watson, 857 F.2d 1478 (9th Cir. 1988) (unpubl. table opin.)

(WESTLAW, CTA database at 8). Respondents have ascertained from

counsel in those cases that the Kohi case has been dismissed, while the

Jeldness litigation is still active. See also Pfeiffer v. Marion Center Area

School Dist., 59 U.S.L.W. 2294 (3d Cir. Oct. 30, 1990) (WESTLAW,

1990 WL 163389 at 18).

'! Moreover, the holding of the Tenth Circuit is a panel decision

which, if in error, may later be corrected by the Court of Appeals en

banc. DeVargas filed no suggestion for rehearing en banc in this case.

14

the Restoration Act to apply the statute retroactively. 911 F.2d

at 1385-88 (Pet. App. at 53a-62a). In addition, the outcome

under the particular facts of this case should be the same

regardless of whether the Restoration Act is applied retroac-

tively.'? Accordingly, the result in this particular case can in

no way be said to be inconsistent with congressional intent.

DeVargas also argues (at 16-18) that the import of the

issue with regard to the Restoration Act is heightened by the

Court of Appeals’ resolution of the “apparent tension”

between Bradley v. Richmond School Board, 416 U.S. 969

(1974), and Bowen v. Georgetown University Hospital, 488

U.S. 204 (1988). See 911 F.2d at 1388-93 (Pet. App. at

62a-72a). This construction, while of significant legal inter-

est, cannot be said to represent specific differences in the

Circuits, as the outcome of a review conducted under the

particular method of analysis adopted by the Court of Appeals

here will not necessarily conflict with the outcome of a

review conducted by another method in any particular situa-

tion. Moreover, any attempt to articulate the specific method

of interpreting congressional intent for all statutes must have

import beyond the civil rights area and is fraught with prob-

lems of anticipation. The Court has recently chosen not to

address this issue of construction, even when the opportunity

clearly presented itself. See, e.g., Kaiser Aluminum & Chem.

Co. v. Bonjorno, 110 S. Ct. 1570, 1576-77 (1990).

A final matter that argues against granting certiorari is

the fact that DeVargas has chosen to drop the last federal

defendant — Gary Granere, Acting Manager of the DOE Los

Alamos Area Office — as a respondent herein. (See Pet. at 2d

12 See infra at 15-29.

15

unn,. p.). Removing Granere as a respondent leaves only non-

federal respondents and means that the federal governinent

will not appear to argue cither the proper method to determine

congressional intent with regard to retroactive application of

federal statutes or the proper interpretation of the particular

DOE regulations at issue.'* Certainly there should be input

from the federal government as to the issues presented in this

case, if they were to be decided.

Thus, because the issue presented has been correctly

decided and, in any event, is one of very limited impact, the

Court should deny issuance of a writ of certiorari.

Il. THE SAME RESULT SHOULD BE REACHED

REGARDLESS OF RETROACTIVE APPLICATION

OF THE RESTORATION ACT.

Pursuant to Supreme Court Rule 15.1, this portion of the

bricf sets forth in detail what additional issues are involved in

resolving the question posed by De Vargas in his Petition. The

proper resolution of these issues in light of the record in this

case demonstrates that it is unnecessary even to reach the

issue Of retroactive application of the Restoration Act,

because the same result should obtain regardless of whether

the Restoration Act is given retroactive application.

A. Mason & Hanger Is Neither a “Recipient” of Federal

Financial Assistance Nor Part of the “Operations” of

the University.

De Vargas continues, as he did below, to ignore the fact

that the Laboratory is a DOE facility and that the contracts at

'S See infra at 23-26.

16

issue are part of a procurement contract system created for the

benefit of the federal government. The statement in the Peti-

tion (at 5) that the University chose to delegate some of its

dutics to Mason & Hanger ignores the extensive record estab-

lished below through the congressional hearings on the trans-

fer of the previously federally employed security force at the

Laboratory.

DeVargas assumes that Mason & Hanger, or at least the

function performed by Mason & Hanger at the Laboratory, is

a program of the University, and that once program specificity

is removed by retroactive application of the Restoration Act,

liability imparts to the University under § 504 for the actions

of Mason & Hanger, because of federal assistance or grants

reccived somewhere in the University’s educational system.

Mason & Hanger, however, is not a program of the

University performing the University’s operations. Mason &

Hanger and the University are separate entities performing

separate functions in the service of the federal government at

the Laboratory. Mason & Hanger is not a recipient of federal

financial assistance. There is nothing in the Restoration Act,

even if applied retroactively, which would make the Univer-

Sity or its employees liable under § 504 for Mason &

Hanger’s failure to employ DeVargas, or make Mason &

Hanger or its employees liable under § 504 based on reccipt

of federal grants or assistance by the University somewhere in

its educational system.

The University operates facilities at the Laboratory on

behalf of DOE. When the Laboratory was established as a

permanent federal facility following World War II, the Uni-

versity declined to be involved in operations at the Laboratory

17

other than scientific and technical operations. Hearings at 25.

Prior to May 1981, the protective service at the Laboratory

was a federally employed force. At the behest of the federal

Office of Management and Budget (“OMB”) and DOE, com-

petitive bidding was initiated to ascertain whether a private

contractor could supply an enhanced protective force more

economically than could the federal government. /d. at 7-14,

18-19, 21-22. Pursuant to OMB competitive bidding, with

input from DOE and a congressional subcommittee, Mason &

Hanger was selected to provide the private security force at

the Laboratory. /d. That selection and subsequent subcontract

were for the benefit of the federal government and the nation

as a whole, not for the benefit of the University. Although

Mason & Hanger’s contract is structured so that it operates as

a subcontract to the University’s prime procurement contract,

that structure merely dictates how contractual payments flow

from DOE through the University to Mason & Hanger. The

University reaps no financial benefit from its subcontract with

Mason & Hanger.

The University’s role in operating the Laboratory has

never included the provision of security forces. While the

University has some input and control over the security force

for purposes of strength, deployment, and coordination, simi-

lar to the input and control that it had with the federally

employed force, it is Mason & Hanger, not the University,

which is charged with employing, training, and providing

security personnel, as well as ensuring that those activities

comply with appropriate federal regulations.

Thus, the provision of security forces is not part of the

“operations” of the University at the Laboratory, and the

operations of Mason & Hanger do not fall under the “all

18

operations” provision of § 504(b) for purposes of the Univer-

Sily.

In addition, DeVargas applied for employment with

Mason & Hanger, not with the University. It is Mason &

Hanger which declined to process DeVargas’ application.

Although Mason & Hanger personnel, in an appropriate abun-

dance of caution, sought advice from University personnel to

ensure that they were proceeding in accordance with the

mandatory federal regulation involved, ultimate responsibility

for employing and providing the security force remains with

Mason & Hanger, not with the University.

De Vargas apparently would urge that § 504 is no longer

limited in coverage to the entity that receives federal funding,

but that anytime a subject organization (or at least a univer-

sity) has a contract with another organization, both organiza-

tions fall under § 504 liability and liability flows in both

directions. That position, however, cannot be sustained in

light of prior holdings of the Court under § 504, the plain

language of the Restoration Act, or its legislative history.

Prior to enactment of the Restoration Act, the Court

squarely held in United States Department of Transportation

v. Paralyzed Veterans of America, 477 U.S. 597, 605-08

(1986), that the recipient of federal financial assistance under

$ 504 was the entity that actually received the federal finan-

cial assistance, because coverage of § 504 was in the nature

of a contractual cost which could be terminated at the choice

of the covered entity to avoid liability. The Court specifically

rejected the concept of liability vicariously extending from

one entity to another. /d. at 608. Although Congress intended

in the Restoration Act to overrule program specificity within

19

entitics by providing extensive definitions of the term, “pro-

gram or activity,” neither those changes nor the legislative

history of § 504 indicate any intent by Congress to expand

liability beyond the specific entity actually receiving federal

financial assistance. See § 504(b); S. Rep. No. 64, 100th

Cong., Ist Sess. 16-20 (1987).'* Where Congress intended to

cover associated or affiliated organizations in the Restoration

Act, it did so specifically. See § 504(b)(4);'° S. Rep. No. 64,

supra, at 19-20.

Liability under § 504 does not reach contractors of cov-

ered entities.'© To be covered under § 504(b)(3), a corporation

'4 Indeed, the Senate Committee on Labor and Human Resources,

which issued the only legislative report on the Restoration Act, stated

specifically that the Court’s ruling in Paralyzed Veterans was preserved

under the Act.

[The Restoration Act] does not overrule or alter the Supreme

Court ruling in the case Department of Transportation v.

Paralyzed Veterans of America, -- U.S. --- (1986), that airline

companies are not recipients of federal financial assistance as

a result of their use of federally-assisted airports or federal air

traffic controllers.

S. Rep. 64, supra, at 29.

'S DeVargas’ expansive reading of the Restoration Act would render

as surplusage the precise language of § S04(b)(4).

'6 A strikingly similar case on this issue is O'Keefe v. Niagara

Mohawk Power Corp., 714 F. Supp. 622, 630-31 (N.D.N.Y. 1989). The

plaintiff there was an instructor hired by a subcontractor of Oak Ridge

Associated Universities (“Oak Ridge”), a DOE prime contractor, to teach

courses at facilitics operated by Oak Ridge. When the subcontractor fired

the plainuff, the plainuff sued the subcontractor under § 504 and a

panoply of claims similar to those made by DeVargas below. Relying on

the authority of Paralyzed Veterans, the court in that case dismissed the

claims under § 504, holding that, although Oak Ridge clearly received

federal funding and was subject to § 504 liability, that fact did not subject

the subconiractor-employer to § S04 liability.

20

must receive the federal grant or assistance itself; it cannot be

vicariously liable for the receipt of assistance by another

entity, unless it is created by that entity under § 504(b)(4).

See S. Rep. 64, supra, at 17-19. And the entity with which a

corporation contracts (here the University) cannot be held

vicariously liable under § 504 for the acts of the contracting

corporation,'” particularly where, as here, the corporation

itself is not liable under § 504.

In sum, the University and Mason & Hanger are different

entities performing different functions at the Laboratory.

Mason & Hanger is neither a “recipient” of federal financial

assistance nor part of the “operations” of the University.

Accordingly, the same result should be reached regardless of

the retroactive application of the Restoration Act.

B. Judgment Should Be Affirmed on the Ground That

the Contracts at Issue Are Not Awards of Assistance

and Do Not Create a Basis for Liability Under § 504.

The Court of Appeals approached the § 504 issue on two

different grounds. First, it held that the Mason & Hanger

defendants were not liable under § 504, because Mason &

Hanger’s subcontract is not an award of assistance, and

Mason & Hanger, therefore, does not receive federal financial

assistance. 911 F.2d at 1382-83 (Pet. App. at 48a-50a). Then,

the Court of Appeals went on to decide the application of

'7 See Eivens v. Adventist Health Sys./E. & Middle America, Inc.,

651 F. Supp. 340, 343 (D. Kan. 1987) (holding under Paralyzed Veterans

that a hospital holding company is not subject to § 504 liability based on

receipt of federal assistance by the individual corporate hospitals).

§ 504 to the University and federal defendants on the basis

that the Restoration Act is not subject to retroactive applica-

tion. 911 F.2d at 1383-93 (Pet. App. at 5la-72a).

1. Judgment Was Entered in Favor of the Mason &

Hanger Respondents on Grounds Independent

From the Consideration of the Retroactive Appli-

cation of the Restoration Act.

The Court of Appeals did not, and did not need to, reach

the issue of the retroactive application of the Restoration Act

in order to affirm the judgment in favor of the Mason &

Hanger respondents. There is no evidence of financial assis-

tance to Mason & Hanger in the record. Because the Court of

Appeals affirmed judgment in favor of the Mason & Hanger

respondents on grounds independent from the question pre-

senied in the Petition, the Mason & Hanger respondents —

Mason & Hanger, Hook, and Hardwick — should be dismissed

from this proceeding.

2. Judgment Below Should Be Affirmed for the Uni-

versity Respondents on the Same Ground as That

for the Mason & Hanger Respondents.

The sole issue presented and litigated below with regard

to § 504 was whether the contracts at issue were in fact

awards of assistance. There is no evidence in the record of

any federal grant or assistance to the University (outside of

De Vargas’ claims with regard to the contracts), because other

grants were never at issue below.

There is no reason on the basis of the claims presented

and state of the record to treat the University respondents —

Respondents Kerr, Pogna, and Walterscheid — differently from

22

the Mason & Hanger respondents. Accordingly, judgment

should be affirmed for all respondents on the basis that the

contracts are not awards of assistance, without the necessity

of reaching the issue of retroactive application of the Restora-

tion Act.

C. An Action for Damages Under § 504 or § 1983 Cannot

Be Maintained Against the Respondents on the Basis

of the Record in This Case.

The only remedy even arguably remaining for De Vargas

under § 504 or his derivative claim of violation of § 504

rights under § 1983!8 is that of damages.'? The Court of

Appeals avoided reaching the “open issue” of the availability

of damages under § 504 by ruling instead on the retroactive

application of the Restoration Act. 911 F. 2d at 1393 n.12

(Pet. App. at 73a n.12). Resolution of that issue, however, is

unnecessary to this action, as DeVargas’ current allegations

fail under the record in this case to provide any basis what-

soever for a claim for damages either directly under § 504 or

derivatively under § 1983.

'8 The Court of Appeals dismissed DeVargas’ derivative § 1983

claim on the ground that there was no basis for his underlying § 504

action. 911 F.2d at 1394 (Pet. App. at 74a-75a). It is unclear whether

De Vargas intends to continue to pursue his § 1983 action along with his

direct § 504 claim.

'9 The District Court dismissed all declaratory and equitable relicf,

including backpay, as relief, on the bases that IMD 6102 was mandatory

and properly followed, that IMD 6102 had been superseded in 1984 by

regulations under which an otherwise fully qualified applicant could be

considered for waiver, and that De Vargas had not reapplied for a security

inspector position under those successor regulations. (Pet. App. at

37a-39a). De Vargas did not appeal this dismissal to the Court of Appeals.

See 911 F.2d at 1382 (Pet. App. at 48a).

23

1. Mason & Hanger Properly Followed a Federal

Regulation Mandatorily Prohibiting the Employ-

ment of One-Eyed Individuals as Security Inspec-

tors at Federal Facilities.

A determinative issue hidden in the Petition is the proper

interpretation of IMD 6102. Although both the Court of

Appeals, 844 F.2d at 725 (Br. App. at 41a-42a) and the

District Court (Pet. App. at 37a-38a) ruled that IMD 6102

§ A.6.b(8) mandatorily disqualified one-eyed individuals

from employment as security inspectors without review, and

DeVargas does not purport to raise that issue here, he nev-

ertheless continues to claim that IMD 6102 provided for a

medical waiver of his disability, which he was denied by

respondents. (Pet. at 5). His erroneous position as to the

interpretation of IMD 6102 is the linchpin of his claims under

§ 504 against the respondents.

In order to state a claim for damages against these

respondents, Mason & Hanger must have had at least the

opportunity to exercise discretion in its application of IMD

6102. If instead, as the record here demonstrates, Mason &

Hanger properly followed the requirements of a mandatory

federal regulation, then the appropriate action would be one

against DOE officials under cither § 504 or the Administra-

tive Procedure Act, as amended 5 U.S.C. §§ 701-706 (1988),

to effect a change in the regulation.2° Because of the

20 A similar case to the present one on this issue is Cousins v.

Secretary of United States Department of Transportation, 880 F.2d 603

(Ist Cir. 1989) (en banc). In that case, a deaf individual was denied a job

by a private employer, based on a Department of Transportation (“DOT”)

regulation that mandatorily disqualified deaf individuals from employ-

ment as interstate truck drivers. Just as in the present case,

(Continued on following page)

24

mandatory nature of the regulation at issue, any claim for

damages against respondents here is without foundation.?! It

is fundamental that liability for damages under civil rights

Statutes only arises with regard to those persons whose discre-

tionary acts cause the injury.22 See Monell v. Department of

Social Serv., 436 U.S. 658, 692-94 (1978); Rizzo v. Goode,

423 U.S. 362, 370-71, 375-76 (1976).

(Continued from previous page)

DOT regulations there allowed for waiver of some medically disqualify-

ing conditions, but not for the condition at issue. /d. at 604. The Court of

Appeals there concluded that suits of that type should be brought against

the government “as regulator’ only under the Administrative Procedure

Act, not under § 504. /d. at 605-06.

21 An example of the proper resolution of this issue may be found in

the opinion of the Supreme Court of Maine in Jackson v. Maine, 544

A.2d 291 (Me. 1988), cert. denied, 109 S. Ct. 3185 (1989). In that case,

an applicant for the position of school bus driver for a local school district

was denied the job, because of the regulations of a state educational

department which mandatorily prohibited insulin-dependent diabetics

from driving school buses. The applicant sued under both § 504 and the

Maine Human Rights Act, alleging discrimination on the basis of hand-

icap against the local school district, its officials, and state agencies and

officials. The trial court found the local school district contingently liable

to the applicant for damages. /d. at 294. On appeal, the Supreme Court of

Maine reversed, holding that the fact that the local school district and its

officials were “entirely blameless” for the application of the mandatory

regulations negated any award of damages, and rejecting “the [trial]

court’s attempt to retain [the local school district] as a surrogate for the

State.” Id. at 296-97.

22 Cf. Chaplin v. Consolidated Edison Co., 587 F. Supp. 519, 520

(S.D.N.Y. 1984) (holding that corporate officials who are “responsible for

policies which violate § 504 may be liable in their individual capacities

under that section”) (emphasis added).

25

The interpretation of IMD 6102 § A.6.b.(8) as mandatory

without opportunity for waiver is the only reasonable reading

of the regulation that maintains its structure, language, and

intended distinctions.2 Moreover, DOE intended and consis-

tently interpreted IMD 6102 as mandatory in disqualifying

one-cyed individuals from the position of security inspector

23 DeVargas’ cavalier interpretation of IMD 6102 as providing for

medical review under IMD 6102 § A.6.c (Br. App. at 68a-69a) in all

cases would read significant portions of IMD 6102 and distinctions that

were contained in that regulation entirely out of existence.

The list of conditions in subpart (b) of IMD 6102 § A.6 (Br. App. at

63a-68a) contains both discretionary and mandatory disqualifications. (As

to the use of the word, “shall,” as mandatory, see IMD 6102 § a.2.b (Br.

App. at 50a).) Three of the four mandatory disqualifications (numbers 2,

6, and 10) contain their own specific medical review and standards for

waiver. Attempting to read the broader IMD 6102 § A.6.c provision for

medical review as applicable to these mandatory provisions makes the

specific medical review and standards contained in these provisions

meaningless and surplusage. Only the condition of being one-eyed

(number 8) among these mandatory disqualifications operated to disqual-

ify an individual without any further medical review whatsoever.

With regard to the one-eyed condition, the most dramatic example of

the misreading urged by DeVargas results from comparing the security

inspector standards in IMD 6102 §§ A.S & 6 (Br. App. at 57a-69a) with

the guard standards contained in IMD 6102 § AY & 10 (Br. App. at

7la-78a). The two sections for the two different levels of security

employee are structurally similar and contain similar medical review

standards. IMD 6102 § A.9.b{5) (Br. App. at 72a) provides that “[o|ne-

eyed individuals may qualify” to be guards, subject to medical review,

while IMD 6102 § A.6.b(8) (Br. App. at 67a) provides that “[a] one-cyed

individual shall be medically disqualified for security inspector duties.”

(Emphasis added.) Despite the obviously different intent of these two

sections, DeVargas’ interpretation would treat applicants for the two

different security positions in exactly the same manner.

26

without review.?4 With regard to complex administrative reg-

ulations, “the ultimate criterion is the administrative inter-

pretation, which becomes of controlling weight unless it is

plainly erroneous or inconsistent with the regulation.” United

States v. Larionoff, 431 U.S. 864, 872 (1977).

Mason & Hanger here properly followed a federal regula-

tion that mandatorily prohibited the employment of one-cyed

individuals as security inspectors, and, accordingly, there is

no basis for any action for damages against respondents.

2. Respondents Did Not Intentionally Discriminate

Against the Petitioner and Are Entitled to Quali-

fied Good Faith Immunity.

Although a showing of intent may not be necessary to

maintain an action for noncompensatory equitable relief

under § 504, intentional discrimination or bad faith is a

necessary clement in the recovery of damages or other com-

pensatory relief. Guardians Ass'n v. Civil Serv. Comm'n, 463

U.S. 582, 584 n.2, 607 n.27 (1983) (decision under Title VI of

the Civil Rights Act of 1964);25 Consolidated Rail

24 In support of summary judgment, defendants submitted the sworn

declaration of Martin J. Dowd, who was Deputy Director of the Office of

Safeguards and Security for DOE, a position which involved management

responsibility for protection policies of DOE, including interpretation of

those policies. Mr. Dowd’s affidavit concerns DOE’s intent, development,

and interpretation of IMD 6102, particularly the provision requiring

security inspectors to have sight in both cyes. Mr. Dowd states that IMD

6102 § A.6.b(8) was intended and consistently interpreted by DOE as

requiring sight in both eyes and was not subject to qualification or waiver

by cither DOE or a contractor.

25 The remedies for a violation of § 504 arc those set forth in Title

VI. 29 U.S.C. § 794a(a)(2) (1988). The Courts of Appeals have applied to

(Continued on following page)

27

Corp. v. Darrone, 465 U.S. 629, 630-31 & n.9 (1984) (apply-

ing the decision in Guardians to § 504).2© The record in this

case establishes that respondents did not intentionally dis-

criminate against De Vargas or act in bad faith. Furthermore,

respondents are clearly entitled to an extension of the grant of

qualified good faith immunity previously determined by the

Court of Appeals.

In the present case, the District Court (Br. App. at 3a-6a;

Pet. App. at 3la-36a) and Court of Appeals, 844 F.2d at

718-25 (Br. App. at 24a-43a), granted all respondents sum-

mary judgment on the basis of qualified good faith immunity

on all of the De Vargas’ § 1983 claims, finding factually that

Mason & Hanger reasonably followed IMD 6102 in declining

to process DeVargas’ application. The lower courts’ deter-

mination of facts applics with equal force to the same incident

and decision viewed with regard to § 504 rights.

Qualified good faith immunity, of course, turns on identi-

fication of “clearly established statutory or constitutional

rights which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). There is nothing in

(Continued from previous page)

§ 504 the holding in Guardians on the limited availability of damages

under Title VI, requiring a showing of discriminatory intent for compen-

satory relief under § 504. Georgia State Conf. of Branches of NAACP v.

Georgia, 775 F.2d 1403, 1427-1428 (11th Cir. 1985); Carter v. Orleans

Parish Public Schools, 725 F.2d 261, 262-263 (Sth Cir. 1984) (per

curiam), Timms v. Metropolitan School Dist., 722 F.2d 1310, 1318 1.4

(7th Cir 1983).

26 In Consolidated Rail, the Court held that backpay would be

_ available under § 504 upon a showing of intentional discrimination, but

declined to opine on the availability of further compensatory relicf.

28

the history of § 504 or the judicial interpretation of that

Statute that indicates that any of the respondents should have

known that § 504 was not program specific in the period from

1981 to 1983 or should have acted in a different manner as a

result. Indeed, the congressional history of the Restoration

Act, itself, states that early Court of Appeals’ decisions had

held § 504 to be program specific, even prior to the decisions

of this Court in Grove City College v. Beil, 465 U.S. 555

(1984), and Consolidated Rail. S. Rep. 64, supra, at 10.2’

Accordingly, there is no basis whatsoever for any contention

that it was clearly established, in a particularized sense, that

respondents should have known that their actions would vio-

late De Vargas’ rights under § 504. See Anderson v. Creighton,

483 U.S. 635, 638-40 (1987).

Although determinative of claims for damages under

§ 1983, a holding of qualified good faith immunity does not

necessarily resolve the issue of subjective intent for purposes

of a direct action under § 504. The very purpose of the

doctrine of qualified good faith immunity has been to replace

the element of subjective intent under § 1983 with one of

objective knowledge, specifically because of the difficulty in

negating allegations of intent for purposes of summary judg-

ment. Harlow, 457 U.S. at 815-19. The facts established in

this case, however, are sufficient also to negate any rceason-

able inference of intentional discrimination or bad faith and to

27 These pre-Consolidated Rail decisions are Brown v. Sibley, 650

F.2d 760, 769 (Sth Cir. 1981), and Simpson v. Reynolds Metals Co., 629

F.2d 1226, 1231-32 (7th Cir. 1980).

support summary judgment in favor of respondents on the

issue Of damages under § 564.28

In addition, if it were deemed necessary to urge that the

theory of qualified good faith immunity should apply to direct

actions under § 504 for damages against government officials

or individuals in functionally equivalent positions,?? then

respondents urge the direct application of that doctrine. The

costs of a subjective intent standard are as high, the distrac-

tion of public figures is as great, and the overall need for

qualified immunity is as substantial in actions for damages

directly under § 504 as in actions for damages under § 1983.

See Harlow, 457 U.S. at 816-17.

Accordingly, an action for damages cannot be maintained

under cither § 504 or § 1983 against respondents, because

they did not intentionally discriminate against De Vargas or

act in bad faith, and because they are entitled to qualified

good faith immunity.

28 See Marvin I. v. Austin Indep. School Dist., 714 F.2d 1348, 1357

(Sth Cir. 1983) (holding for purposes of summary judgment that, where

the record establishes that the defendants are attempting to follow govern-

ment guidelines, there can be no finding of intentional discrimination on

which to base a claim for damages under § 504).

29 The Court of Appeals in this case held that the Mason & Hanger

respondents were entitled to be considered for qualified good faith

immunity along with the governmental defendants, because of Mason &

Hanger’s status as a federal subcontractor, the delegation to it of the

responsibility of applying and enforcing federal regulations, and an

analysis of the factors articulated in //arlow. 844 F.2d at 720-23 (Br. App.

at 30a-37a).

4

’

es

30

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied. In the alternative that the Court were to

choose to review the judgment below, a writ of certiorari

should be issued only with respect to Respondents Kerr,

Pogna, and Walierscheid and only for the purpose of summary

affirmance or remand to the Court of Appeals.

Respectfully submitted,

JosepH E. EARNEST

(Counsel of Record)

MonTGOMERY & ANDREWS, ?.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(SOS) 982-3873

Laurie A. VOGEL

CHERPELIS VOGEL AND

SALAzaR, P.A.

Post Office Box 37380

Albuquerque, New Mexico

87176-7380

(SOS) 265-7826

Dated: December 18, 1990

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