Lane v. Pena, Secretary of Transportation, et al. (95-365), 518 U.S. 187 (1996).
[ Stevens ]
[ O'Connor ]
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No. 95-365


on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 20, 1996]

Justice Stevens , with whom Justice Breyer joins, dissenting.

The relevant facts are undisputed. The Department of Transportation violated §504 by separating petitioner Lane from the Merchant Marine Academy because he has diabetes. Lane was injured by that violation, and he is therefore entitled to maintain an action against the agency under §504. The parties and the Court agree that damages are an appropriate form of relief for most violations of §504, including wrongful conduct by private recipients of federal funding, by state actors, and by federal agencies acting in a funding capacity. The only issue in the case is whether Congress carved out a special immunity from damages liability for federal agencies acting in a non funding capacity, as the Department of Transportation was acting in this instance. I think it plain that Congress did not.

Congress passed the Rehabilitation Act to "develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living" for the disabled. 29 U.S.C. § 701 as amended by Pub. L. 95-602, Title I, §122(a)(1), 92 Stat. 2984. As originally enacted in 1973, §504 of the Act provided:

"No otherwise qualified handicapped individual in the United States . . . 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." Pub. L. 93-112, 87 Stat. 394.

Although the Court pays scant attention to the principle, we have previously held that congressional intent with respect to a statutory provision must be interpreted in the light of the contemporary legal context. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71 (1992). A review of the relevant authorities convinces me that §504 created a private cause of action with a damages remedy.

The text of §504 was modeled on the language of §601 of Title VI of the Civil Rights Act of 1964, which prohibits discrimination by any recipient of federal funds on the basis of race, color, or national origin. [n.1] Following passage of Title VI, federal courts unanimously held that §601 created a private cause of action. See Cannon v. University of Chicago, 441 U.S. 677, 696 (1979). Although we have never expressly ruled on the question, our opinion in Cannon implicitly ratified that judgment. Id., at 703.

Our explicit holding in Cannon was that Title IX of the Education Amendments of 1972, which was also patterned on Title VI, created a private cause of action. [n.2] This conclusion stemmed, in part, from our understanding that Congress meant Title IX to be interpreted and applied in the same manner as Title VI. Id., at 696. We presumed, consistent with well established principles of statutory interpretation, that Congress was aware of the relevant legal context when it passed Title IX. Id., at 696-697. We also noted that between the enactment of Title VI in 1964 and the enactment of Title IX in 1972 we had consistently found implied remedies in less clear statutory text. Id., at 698.

Congress passed §504 in 1973, just one year after enacting Title IX. Relying on analysis like that set forth in Cannon, the courts of appeals have uniformly held that Congress intended §504 to provide a private right of action for victims of prohibited discrimination. [n.3] In my opinion the circuit courts are undoubtedly correct. [n.4]

Our decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), makes it equally clear that all traditional forms of relief, including damages, are available in a private action to enforce §504. In Franklin we held that a plaintiff could seek monetary damages against a school system accused of violating her rights under Title IX. We canvassed the long history of the principle that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S. 678, 684 (1946). See Franklin, 503 U. S., at 65-71. Applying this rule to the implied cause of action in Title IX, we rejected the government's contention that "whatever the traditional presumption may have been when the Court decided Bell v. Hood, it has disappeared in succeeding decades." Id., at 68. From Franklin it follows ineluctably that the original version of §504--enacted, it bears repeating, one year after Title IX--authorized a damages remedy for persons aggrieved by violations of the provision's discrimination ban.

Against this background, Congress passed legislation in 1978 to extend §504's prohibition against discrimination on the basis of handicap to cover the actions of federal executive agencies. The amendment was part of a lengthy piece of legislation intended to strengthen the protections embodied in the original Act. See Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602, 92 Stat. 2955 (statement of purpose). The legislation evidenced Congress' continued commitment to the broad goals of the earlier Act by, for example, adding provisions aimed at improving accountability and enforcement, see, e.g., Pub. L. 95-602, Title I, §§122(a)(10), 106, 109(4), 29 U.S.C. §§ 711-715, 751, 761b, expanding federal support for research programs, see, e.g., Pub. L. 95-602, Title I, §§109(4), 104(c)(1), 29 U.S.C. §§ 761a 762a, augmenting funding for projects such as job training and the removal of physical barriers in public places, see, e.g., Pub. L. 95-602, Title I, §§116(2) 120(a), 29 U.S.C. § 777 et seq., §794b, and creating local rehabilitation centers across the nation, see Pub. L. 95-602, Title I, §115(a), 29 U.S.C. § 775. Together, the amendments represented a substantial financial investment in the future of the disabled in this country.

As part of this general expansion of the original Act, Congress amended §504 to forbid discrimination against the handicapped "under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." [n.5] 29 U.S.C. § 794(a). The question we address here is whether this unambiguous extension of §504 to federal agencies was meant to waive the Government's sovereign immunity to damages liability. The answer is surely "yes." Section 504 as originally enacted was understood to create a private right of action for aggrieved individuals and to authorize a damages remedy. Congress, acting in 1978, had no reason to expect the courts to require a clearer statement respecting the remedies available against a federal defendant than those available against any other §504 defendant. And the text of the amendment--which simply inserted the phrase extending coverage to federal agencies into the existing sentence prohibiting discrimination by federal grantees--gives no indication whatsoever that Congress intended to create a different remedial scheme for the agencies.

The Court rejects this conclusion, however, because it reads another part of the 1978 amendment, §505(a)(2), as a limitation on the remedies available against executive agencies under §504. In my judgment, the Court errs by misinterpreting the language and structure of §505 and ignoring its legislative history.

Congress' intent to strengthen the Act's protections is clearly evident in §505. The inclusion of an attorney's fees provision in §505(b) fortified the Act's enforcement mechanisms. This assistance to plaintiffs was necessary, according to the Senate report accompanying the amendments, because "the rights extended to handicapped individuals under title V . . . are, and will remain, in need of constant vigilance by handicapped individuals to assure compliance . . . ." S. Rep. No. 95-890, p. 19 (1978). [n.6]

The remedies provision, §505(a), was also meant to ensure compliance with the 1973 Act, not to restrict remedies that Congress had made available under §504, as the majority would have it. The section's legislative history demonstrates Congress' intent.

Between the enactment of §504 in 1973 and the passage of §505(a)(2) in 1978, [n.7] the Department of Health, Education, and Welfare promulgated model regulations for federal agencies to use in implementing the anti discrimination principle announced in §504. See 43 Fed. Reg. 2132 (1978). [n.8] Because of the common understanding that §504 was patterned on §601 of Title VI, 42 U.S.C. § 2000d and intended to be enforced in the same manner, [n.9] the Department simply directed the agencies to follow the procedures they used to enforce Title VI. See 43 Fed. Reg. 2137, §85.5 (1978). This directive resulted in uniform enforcement mechanisms for allegations of discrimination by federal grantees on the basis of handicap, race, color, or national origin. [n.10] Moreover, it avoided needless duplication of effort. Section 601 is accompanied by additional provisions explaining Congress' intentions with respect to implementation of the provision's mandate. See 42 U.S.C. § 2000d-1 et seq. As originally enacted, §504 stood alone. It therefore made sense to allow federal agencies to take advantage of the details included in Title VI and the regulations promulgated to enforce §601.

In enacting §505(a)(2), Congress explicitly recognized and approved the application of Title VI's enforcement procedures to §504. Thus, despite the Court's narrow focus on the incorporation of the remedies provided by Title VI, §505(a)(2) provides that the "remedies, procedures, and rights" set forth in Title VI are available to an individual aggrieved by the conduct of a federal grant recipient. 29 U.S.C. § 794a(a)(2) (emphasis added). As the Senate report explained:

"It is the committee's understanding that the regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under section 504 conform with those promulgated under title VI. Thus, this amendment codifies existing practice as a specific statutory requirement." S. Rep. No. 95-890, at 19.

Viewed in this context, the reference in §505(a)(2) to "Federal providers" that the Court finds so puzzling is easily understood: The compliance mechanisms defined in Title VI include remedies, procedures, and rights applicable to the providers of federal financial assistance as well as to the recipients of such assistance. See 29 U.S.C. § 2000d-1 et seq.; see, e.g., 34 CFR §§ 100.6-100.10 (1995) and Part 101 (Department of Education regulations implementing Title VI); 45 CFR §§ 80.6-80.10 (1995) and Part 81 (same for Department of Health and Human Services); id., §§611.6-611.10 (same for National Science Foundation).

Section 505(a)(1), the analogous provision for violations of §501's prohibition on handicap discrimination in federal employment, has a similar history. [n.11] The provision was intended to "aid in attaining" the goals of §501 "by providing for individuals aggrieved on the basis of their handicap the same rights, procedures, and remedies provided [to] individuals aggrieved on the basis of race, creed, color, or national origin." S. Rep. No. 95-890, at 18-19. Like §504, §501 is not accompanied by any provisions concerning implementation. Section 505(a)(1) directs the executive to look to Title VII for appropriate "remedies, procedures, and rights." 29 U.S.C. § 794a(a)(1) (emphasis added).

Unlike §501 and the clause of §504 relating to recipients of federal financial assistance, the prohibition on handicap discrimination in programs or activities conducted by federal executive agencies had no simple statutory analogue. The Court opines that if "Congress [had] wished to make Title VI remedies available broadly for all §504(a) violations, it could easily have used language in §505(a)(2) that is as sweeping as the `any complaint' language contained in §505(a)(1)." Ante, at 6. I agree. Congress did not so intend, however, because, in the words of the United States, "[i]t would have been odd for Congress to have provided that Title VI remedies applied in Section 504 cases involving discrimination by executive agencies because Title VI [unlike §504] does not prohibit discrimination in programs or activities conducted by executive agencies," Brief for Respondents 16, n. 8.

The oddity extends beyond the nomenclature used to describe §504 defendants. There are at least two substantive differences between federal executive agencies and federal grantees as defendants under the provision. First, Title VI provides remedies which are appropriate against recipients of federal financial assistance, such as the withdrawal of funding for continuing violations, see 42 U.S.C. § 2000d-1, but which make no sense if applied against an agency defendant. Second, some violations which an agency might commit concern discrimination more closely analogous to statutory provisions outside of Title VI. Thus, the standard enforcement procedures adopted for alleged violations of §504 involving employment discrimination by federal agencies require the agency to follow §501 enforcement procedures. See, e.g., 7 CFR §15e.170(b) (1995) (Department of Agriculture regulations implementing §504's mandate to federal agencies); 15 CFR §8c.70 (1995) (same for Department of Commerce); 45 CFR § 85.61 (1995) (same for Department of Health and Human Services).

Viewed in its historical context, §505(a)(2) simply has no application to violations of §504 committed by federal agencies acting in a non funding capacity. Section 505(a)(2) delineates the remedies, procedures, and rights available to persons aggrieved by the conduct of federal grantees and federal funding agencies. It is silent on the remedies, procedures and rights available for transgressions of §504 by federal executive agencies acting in a non funding capacity. The relief to which petitioner is entitled is rooted in §504 itself.

In my opinion, §504 is amply sufficient to meet petitioner's needs. By failing to dictate explicitly the remedies available against federal agencies, Congress left in place the remedies that accompany §504's implied cause of action. As Congress understood in both 1973 and 1978, these remedies include monetary damages. [n.12] Thus, as of 1978, the Rehabilitation Act provided the relief sought by petitioner in this case.

Under the Court's current jurisprudence, however, §504 apparently must be read in a vacuum. Since the advent of United States v. Nordic Village, Inc., 503 U.S. 30 (1992), the Court not only requires the traditional clear statement of a waiver of sovereign immunity but steadfastly refuses to consider the legislative history of a statute, no matter how opaque the statutory language or crystalline the history. [n.13] I shall not review my objections to that holding here. See id., at 39-46 (Stevens, J., dissenting). Suffice it to say that Congress had no reason to suspect in 1978 that 14 years later this Court would adopt (and apply retroactively) a radically new and unforgiving approach to waivers of sovereign immunity.

Not surprisingly, given its lack of fidelity to the statutory text and history, the Court's reasoning leads to two implausible conclusions. To credit the Court's analysis, one must believe that Congress intended a damages remedy against a federal executive agency acting indirectly in the provision of funding to nonfederal entities, but not against an agency acting directly in the conduct of its own programs and activities. [n.14] Surely such an unexpected result would have merited comment in a committee report or on the floor of the House or Senate. Yet there is not a scintilla of evidence in the purpose or legislative history of the Rehabilitation Act or its amendments supporting this interpretation of the statute.

In addition, the majority's holding necessarily presumes that Congress intended to impose harsher remedies on the States (which come under the §504 provision prohibiting handicap discrimination by federal grantees) than on federal agencies for comparable misconduct. Given the special respect owed to the States--a respect that provided the ratio decidendi for our decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)--this suggestion is wholly unconvincing. And once again, the legislative history of the Rehabilitation Act contains no mention of such an intent and no hint of a policy justification for this distinction.

The Court's strict approach to statutory waivers of sovereign immunity leads it to concentrate so carefully on textual details that it has lost sight of the primary purpose of judicial construction of Acts of Congress. We appropriately rely on canons of construction as tie breakers to help us discern Congress' intent when its message is not entirely clear. The presumption against waivers of sovereign immunity serves that neutral purpose in doubtful cases. A rule that refuses to honor such a waiver because it could have been expressed with even greater clarity, or a rule that refuses to accept guidance from relevant and reliable legislative history does not facilitate--indeed, actually obstructs--the neutral performance of the Court's task of carrying out the will of Congress.

The prompt congressional reaction to our decision in Atascadero illustrates the lack of wisdom of the Court's rigid approach to waivers of sovereign immunity. [n.15] It was true in that case, as it is in this, that Congress could have drafted a clearer statement of its intent. Our task, however, is not to educate busy legislators in the niceties and details of scholarly draftsmanship, but rather to do our best to determine what message they intended to convey. When judge made rules require Congress to use its valuable time enacting and reenacting provisions whose original intent was clear to all but the most skeptical and hostile reader, those rules should be discarded.

I respectfully dissent.


1 The precise language of §601 is as follows: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.

2 Section 901 of Title IX provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ." 86 Stat. 373, as amended, 20 U.S.C. § 1681(a).

3 See, e.g., Kampmeier v. Nyquist, 553 F. 2d 296, 299 (CA2 1977); NAACP v. Medical Center, Inc., 599 F. 2d 1247, 1258-1259 (CA3 1979); Pandazides v. Virginia Bd. of Ed., 13 F. 3d 823, 823 (CA4 1994); Camenisch v. University of Texas, 616 F. 2d 127, 130-131 (CA5 1980), vacated on other grounds, 451 U.S. 390 (1981); Jennings v. Alexander, 715 F. 2d 1036, 1040-1041 (CA6 1983), rev'd on other grounds sub nom. Alexander v. Choate, 469 U.S. 287(1985); Lloyd v. Regional Transp. Auth., 548 F. 2d 1277, 1284-1287 (CA7 1977); Miener v. Missouri, 673 F. 2d 969, 973-974 (CA8), cert. denied, 459 U.S. 909 (1982); Kling v. County of Los Angeles, 633 F. 2d 876, 878 (CA9 1980), rev'd on other grounds, 474 U.S. 936 (1985); Pushkin v. Regents of the Univ. of Colo., 658 F. 2d 1372, 1376-1380 (CA10 1981); Jones v. Metropolitan Atlanta Rapid Transit Auth., 681 F. 2d 1376, 1377, n. 1 (CA11 1982), cert. denied, 465 U.S. 1099 (1984).

4 See Conference Report on the Rehabilitation Act Amendments of 1974, S. Rep. No. 93-1270, p. 27 (1974) (hereinafter Conference Report on 1974 Amendments) (noting that §504 was intended to "permit a judicial remedy through a private action").

5 Section 504 was amended: "by striking out the period at the end thereof and inserting in lieu thereof `or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.' " 92 Stat. 2982.

6 Section 505 originated in the Senate.

7 The full text of §505(a)(2) reads 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 any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 504 of this Act." 29 U.S.C. § 794a(a)(2).

8 The Department acted pursuant to a directive from President Ford. See Exec. Order No. 11914, "Nondiscrimination With Respect to the Handicapped in Federally Assisted Programs," issued on April 28, 1976; 41 Fed. Reg. 17871. Congress had encouraged the President to take this step. See Conference Report on 1974 Amendments, at 28 ("The Secretary of the Department of Health, Education, and Welfare, because of that Department's experience in dealing with handicapped persons and with the elimination of discrimination in other areas, should assume responsibility for coordinating the section 504 enforcement effort . . . . The conferees . . . urge . . . delegation of responsibility to the Secretary [through an Executive Order]").

9 See Conference Report on 1974 Amendments, at 27 (the "language of section 504, in following [Title VI and Title IX], . . . envisions the implementation of a compliance program which is similar to those Acts").

10 Congress plainly intended this result. See ibid. ("This approach to implementation of section 504 . . . would . . . provide for administrative due process").

11 Section 505(a)(1) provides: "The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16), including the application of sections 706(f) through 706(k) (42 U.S.C. § 2000e-5(f) through (k)), shall be available, with respect to any complaint under section 501 of this Act, to any employee or applicant for employment aggrieved by the final disposition 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 availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy." 29 U.S.C. § 794a(a)(1).

12 Aware that procedures were also needed, Congress added language in §504 directing federal agencies to promulgate appropriate procedures. 29 U.S.C. § 794(a) ("The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978").

13 The Court distinguishes Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), on the ground that Franklin involved a nonfederal defendant whereas this case concerns a federal defendant. Ante, at 9. This argument cannot be reconciled with the reasoning of our opinion. Franklin relied on cases in which pecuniary awards against the United States had been upheld. See 503 U. S., at 67 (citing Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1838), and Dooley v. United States, 182 U.S. 222 (1901)). That being so, there is no basis for restricting application of the rule to the facts of that case.

14 Even under the majority's interpretation, "Federal provider" must refer exclusively to executive agencies. Otherwise §505(a)(2) would create remedies against entities which may not be held liable under §504.

15 The Court decided Atascadero in 1985. Congress passed legislation to override the decision in 1986. See Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. § 2000d-7; see also ante, at 10. In recent years Congress has enacted numerous pieces of legislation designed to override statutory opinions of this Court. See Landgraf v. USI Film Products, 511 U.S. 244, 250-251 (1994) (listing eight decisions legislatively overruled by the Civil Rights Act of 1991). Additional examples are cited in Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. 331, App. I (1991).