William Fisher v. City of Tucson, an Incorporated Municipality

663 F.2d 861 27 Fair Empl.Prac.Cas. 892 , 27 Empl. Prac. Dec. P 32,289 , 1 A.D. Cases 286 William FISHER, Plaintiff-Appellant, v. CITY OF TUCSON, an incorporated municipality, Defendant-Appellee. No. 78-1251. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 14, 1980. Decided Nov. 23, 1981. William E. Morris, Tucson, Ariz., for plaintiff-appellant. Thomas J. Wilson, Tucson, Ariz., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before HUG, FLETCHER and FARRIS, Circuit Judges. HUG, Circuit Judge: 1 This is an action brought by the appellant, William Fisher, alleging that the City of Tucson, Arizona violated section 503 of the Rehabilitation Act of 1973 in failing to hire him as an industrial electronics technician. Section 503 mandates that "(a)ny contract in excess of $2,500 entered into by any Federal department or agency ... contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals." 29 U.S.C. § 793 (a). 1 Fisher, who suffers from a…

This is an action brought by the appellant, William Fisher, alleging that the City of Tucson, Arizona violated section 503 of the Rehabilitation Act of 1973 in failing to hire him as an industrial electronics technician. Section 503 mandates that “[a]ny contract in excess of $2,500 entered into by any Federal department or agency . . . contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals.” 29 U.S.C. § 793 (a). 1 Fisher, who suffers from a physical handicap, argues that the City of Tucson violated section 503, first by discriminating against him on the basis of his handicap, and second by failing to fulfill its contractual obligation to take affirmative action to employ qualified handicapped individuals.

Section 503 does not expressly provide that its provisions may be enforced through a private right of action. Rather, the statute provides that a handicapped individual who believes that a government contractor has failed to comply with its provisions may file a complaint with the Department of Labor. 29…

concurring and dissenting:

I dissent from the majority’s holding that handicapped individuals do not have a private right of action under section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 (1976 & Supp. II 1978). I agree with the majority that section 503 creates no explicit remedy authorizing handicapped individuals to sue federal contractors in federal court. I likewise agree that the court must undertake an analysis along the line of that pursued by the Supreme Court in Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975), to determine whether a private right of action should be implied. The majority concludes that the first and fourth criteria of the quadripartite test spelled out in Cort *868 v. Ash are met. 1 To this extent, I concur in the majority’s opinion.

The second part of the Cort v. Ash test is an inquiry into whether there is “any indication of legislative intent, explicit or implicit, either to create [a private right of action] or to deny one.” 422 U.S. at 78 , 95 S.Ct. at 2088 . 2 Contrary to the majority’s view, I would find the requisite congressional intent to create a private judicial remedy.

In 1978, Congress amended the…