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 Rehabilitation Act to add section 505, 29 U.S.C. § 794a (Supp. II 1978). Subsection (b) of section 505 provides that:

In 1978, at least, Congress believed that a private right of action was available to enforce section 503. In fact, it believed that it was modifying the section 503 remedy by providing attorney’s fees and costs to the prevailing party, other than the Government. See H.R.Rep. No. 95-1149, 95th Cong., 2d Sess., reprinted in [1978] U.S. Code Cong. & Ad. News 7312, 7332. In Red Lion Broadcasting Co. v. Federal Communications Comm’n, 395 U.S. 367 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969), the Supreme Court stated that “[subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.” Id. at 380-81 , 89 S.Ct. at 1801-02 ; accord, Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102 , 118 n.13, 100 S.Ct. 2051 , 2061 n.13, 64 L.Ed.2d 766 (1980); see Andrus v. Shell Oil, 446 U.S. 657 , 666 n.8, 100 S.Ct. 1932 , 1938 n.8, 64 L.Ed.2d 593 (1980); Montana Wilderness Ass’n v. U.S. Forest Service, 655 F.2d 951, 957 (9th Cir. 1981). The majority agrees that Congress intended section 505 to provide attorney’s fees in a private action to enforce section 503. 663 F.2d at 865-866. But it does not find the 1978 congressional interpretation of section 503 a persuasive indicator of what congressional intent was in 1973 when section 503 was enacted.

*869 I disagree strongly. I rely on more than indirect subsequent history interpreting an earlier statute. Compare Consumer Products Safety Comm’n v. GTE Sylvania, 447 U.S. at 118 n.13, 100 S.Ct. at 2061 n.13. Section 505 is premised on the interpretation of section 503 that I urge, 3 and committee reports on section 505 confirm that Congress understood section 503 to include a private enforcement right. 4 Significantly, the 1978 committees that reported on section 505 and the 1973 committees responsible for section 503 were composed of many of the same members of Congress. Compare [1978] U.S. Code Cong. & Ad. News XCIX, CXVII with [1973] U.S. Code Cong. & Ad. News LXXXIV. XCVIII. Thus both section 505 and the 1978 committee reports are entitled to substantially more weight than the majority accords them. 5

Had the majority not found that section 503 was passed for the especial benefit of handicapped persons, its reluctance to find a private judicial remedy could be more easily understood. However, when the first Cort factor has been met, as the majority agrees it has, 663 F.2d at 863-864, “it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.” Cannon v. University of Chicago, 441 U.S. 677, 694 , 99 S.Ct. 1946, 1956 , 60 L.Ed.2d 560 (1979) (quoting Cort, 422 U.S. at 82 , 95 S.Ct. at 2090 ) (emphasis *870 in original). See Northwest Airlines v. Transport Workers Union, 451 U.S. 77 , 101 S.Ct. 1571, 1580-81 , 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18 , 100 S.Ct. 242, 246 , 62 L.Ed.2d 146 (1979). There is not a shred of evidence to indicate that Congress intended to deny a private right to enforce section 503. There is, however, strong and unequivocal evidence, which is entitled to “great weight,” that Congress intended to create an implied right of action to enforce section 503. The absence of any intent to deny a private cause of action together with the clear congressional intent to create such a cause of action provides compelling evidence that favors implication of a private judicial remedy under section 503.

The third inquiry under Cort is whether the “underlying purposes of the legislative scheme” are consistent with private enforcement. 422 U.S. at 78 , 95 S.Ct. at 2088 . The majority concludes that a private right of action would be inconsistent with the legislative scheme established by section 503 because section 503 contains provisions for investigation and enforcement by the Department of Labor (DOL). 663 F.2d at 866-867. I find this view puzzling. Dual enforcement schemes are commonplace. Title VI and Title IX both include provisions for administrative enforcement, see 42 U.S.C. § 2000d-1 (1976) (Title VI); 20 U.S.C. § 1682 (1976) (Title IX), but private rights of action have nevertheless been inferred from both statutes. See also 42 U.S.C. § 2000e-5(b) (1976) (Title VII) (allowing private right of action after exhausting administrative remedies); Allen v. State Board of Elections, 393 U.S. 544 , 89 5. Ct. 817, 22 L.Ed.2d 1 (1969) (finding private right of action under Voting Rights Act of 1965, 42 U.S.C. § 1973 (1976), despite provisions for enforcement by Attorney General). 6

The majority also argues that a private cause of action under section 503 would be difficult to administer. 663 F.2d at 866-867. This may or may not be the case, but is in any event irrelevant. The inquiry to be made is whether the legislative scheme and private enforcement are consistent, Cort, 422 U.S. at 78 , 95 S.Ct. at 2088 , not whether the two schemes are difficult or burdensome to administer. On the question of consistency, some deference is due the agency responsible for enforcing section 503 (here the Department of Labor). See, e. g., Miller v. Youakim, 440 U.S. 125, 144 , 99 S.Ct. 957, 968 , 59 L.Ed.2d 194 (1979); Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792, 801 , 13 L.Ed.2d 616 (1965); Takazato v. F.M.C., 633 F.2d 1276 , 1278 (9th Cir. 1980). The DOL finds no inconsistency between private and administrative enforcement; rather, it has expressed repeatedly its opinion that a private right of action would complement the administrative mechanism. 7

Nor should we overlook the striking similarities in the legislative schemes of section 503 and Title IX. For example, both Title IX and section 503 have similar objectives. Both confer benefits on a specific class of persons, neither section expressly affords private relief for the complainant, and both sections grant the administrative agency wide investigatory discretion. 8 In Cannon , the Supreme Court found an implied right of action consistent with the Title IX enforcement scheme. Cannon, 441 U.S. at 717 , 99 S.Ct. at 1968 . I find no reason to reach a different result here in respect to section 503.

Conclusion

Just as the court in Cannon found with respect to Title IX, I find with respect to *871 section 503 of the Rehabilitation Act, “the atypical situation in which all of the circumstances that the Court has previously identified as supportive of an implied remedy are present.” Cannon, 441 U.S. at 717 , 99 S.Ct. at 1968 (emphasis in original). I conclude that an implied private right of action exists to enforce section 503 of the Rehabilitation Act. Accordingly, I would reverse the district court’s dismissal of appellant’s complaint.

. By contrast, other circuits that have considered whether section 503 creates a private right of action have denied that section 503 was enacted for the especial benefit of handicapped persons, the first Cort factor; the same circuits have also found that the fourth Cort factor is met, i. e., the action is not one traditionally relegated to state law. See Davis v. United Airlines, 662 F.2d 120 at 122-123, 127 (2d Cir. 1981); Simpson v. Reynolds Metals Co., 629 F.2d 1226 , 1238 n.23, 1239-40 (7th Cir. 1980); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 , 1078 n.4, 1079-80 (5th Cir.), cert. denied, 449 U.S. 889 , 101 S.Ct. 246 , 66 L.Ed.2d 115 (1980).

. Congress gave little attention to the section at the time of its ehactment. Discussion of the Rehabilitation Act focused primarily on federal programs for the handicapped. See S.Rep. No. 93-318, 93d Cong. 1st Sess., reprinted in [1973] U.S. Code Cong. & Ad. News 2076. The legislative history of the 1974 amendments to the Rehabilitation Act provide only slightly more guidance. The discussion of the 1974 amendments focused on redefining the term “handicapped individual.” The Conference Report on the 1974 Amendments, however, clearly indicated a congressional understanding that section 504 of the Act permits a “judicial remedy through private action.” S.Conf.Rep. No. 93-1270, 93d Cong.2d Sess., 27 (1974). Significantly, the report goes on to indicate that section 503 should be administered consistently with section 504, thereby suggesting that a private right of action would be consistent with Congress’ purpose in section 503. The Senate debate remarks of Senator Robert Stafford, a sponsor of the original act and the 1974 amendment, confirm this interpretation of section 503. Senator Stafford stated that enforcement of sections 503 and 504 would parallel enforcement of section 601 of the Civil Rights Act and section 901 of the Education Amendments of 1972. 120 Cong.Rec. 30551 (1974). Both section 601 and section 901 include a private right of action. See Cannon v. University of Chicago, 441 U.S. at 694-98, 717 , 99 S.Ct. at 1956-58, 1968 (discussing the implied private right of action under section 601 and finding such a right under section 901).

To the extent that the Supreme Court discounts the use of subsequent legislative history to imply a private cause of action in Cannon, 441 U.S. at 686 n.7, 99 S.Ct. at 1952 n.7, that case is distinguishable. In Cannon the Court had not only subsequent legislative history but also extensive contemporaneous legislative history on which to rely. By contrast, in this case we have scant contemporaneous legislative history but replete subsequent history and legislation. Consequently, there is more reason here to turn to the later history and legislation.

. Section 505 explicitly presumes private judicial actions. It provides that “the court,” not the Department of Labor, may award attorney’s fees. Further, section 505 precludes an award of attorney’s fees to the United States and hence to the Office of Federal Contract Compliance Programs. Thus the only persons that may benefit from the section 505 attorney’s fees provision under section 503 are individuals who prevail in a private judicial action to enforce section 503. See Davis v. United Airlines, 662 F.2d 120, at 128-129 (2d Cir. 1981) (Kaufman, J., dissenting).

. The report on the Senate bill, the source of section 505, states:

S.Rep. No. 95-890, 95th Cong. 2d Sess. 19 (1978) (emphasis added). This report provides unimpeachable evidence that Congress intended section 505 to provide attorney’s fees in a private suit to enforce section 503. Therefore, Congress must have interpreted section 503 to include a private enforcement right.

. The majority also argues that we should ignore Congress’ interpretation of section 503 because section 503 does not parallel several anti-discrimination statutes for which private rights of action have been implied. I agree that section 503 does not parallel these statutes, but I am not sure what significance to draw from this distinction. The fact that private rights of action have been inferred from other statutes differently structured does not mean that a private right of action cannot be inferred from section 503.

To the extent that the majority’s comparison of statutory structures is meant to invoke the distinction between right-creating and duty-creating statutes, that distinction is inapplicable here. In Cannon the Supreme Court observed that it is more willing to imply a cause of action under a right-creating statute than under a duty-creating statute. 441 U.S. at 690 n.13, 99 S.Ct. at 1954. Each court of appeals to consider fully section 503 has invoked this advice to conclude that no cause of action should be implied under section 503, a duty-creating statute. See, e. g., Davis v. United Airlines, 662 F.2d 120, at 122-123 (2d Cir. 1981); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1239 (7th Cir. 1980); Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1079-80 (5th Cir. 1980). Recourse-to the right/duty distinction is not persuasive, however, in an analysis of section 503. First, the Supreme Court did not suggest that a cause of action can never be implied under a duty-creating statute. Cannon, 441 U.S. 690 n.13, 99 S.Ct. at 1954 n.13. In fact it can. Id. (citing, inter alia, J. I. Case Co. v. Borak, 377 U.S. 426 , 84 S.Ct. 1555 , 12 L.Ed.2d 423 (1964) and Machinists v. Central Airlines, 372 U.S. 682 , 83 S.Ct. 956 , 10 L.Ed.2d 67 (1963)). Moreover, section 503 presents a more compelling case for implying a cause of action under a duty-creating statute than either Borak or Central Airlines . In both of those cases, the duty ran to the general public; in section 503 the duty runs to a specially benefitted class. Consequently, section 503 is more closely akin to the Title IX provision interpreted in Cannon than to general duty-creating statutes. See Rogers, 611 F.2d at 1089-90 (Goldberg, J., dissenting).

. If Congress had wished to make the DOL enforcement provisions exclusive, it could have said so explicitly. For example, the enforcement article of the Age Discrimination Act, 42 U.S.C. § 6104 (e) (1976), provides that “the provisions of this section shall be the exclusive remedy for the enforcement of the provisions of this chapter.” No such “exclusive remedies” provision appears in section 503.

. See Rogers, 611 F.2d at 1103, 1108-09 (Goldberg, J., dissenting & Appendix); Chaplin v. Consolidated Edison Co., 482 F.Supp. 1165, 1172 (S.D.N.Y.1980).

. See Rogers, 611 F.2d at 1104-05 (Goldberg, J., dissenting).