Douglas James Scanlon v. Atascadero State Hospital, California Department of Mental Health

We affirm the dismissal of this action, brought under 29 U.S.C. § 794 .

I. Facts.

Scanlon alleges that he suffers from diabetes mellitus and a lack of vision in one *1272 eye, that he was denied a job as a graduate student assistant at Atascadero State Hospital, and that this was discrimination in employment contrary to § 504 of the Rehabilitation Act, 29 U.S.C. § 794 and to various California statutes. The hospital moved for dismissal of the complaint, arguing (a) that § 794 does not apply to employment discrimination unless a primary objective of the federal financial assistance is to provide employment, and (b) that Scanlon’s claims were barred by the Eleventh Amendment. The district court rejected argument (a) but accepted argument (b), and on that ground dismissed the § 794 claim and the pendent state claims.

II. Appealability of the Order.

The court’s order merely dismissed the complaint; there is no judgment dismissing the action. Ordinarily, an order granting a motion to dismiss under rule 12(b)(6), F.R.Civ.P., carries with it a right to amend under rule 15(a), and thus is not an appealable final judgment. Here, however, the ruling was on a ground not curable by…

dissenting:

My analysis of the Rehabilitation Act of 1973, of the 1978 Amendments to that Act, and of the legislative and administrative material which should guide our interpretation of that Act convinces me that the majority’s decision in this case is in error. Accordingly, I dissent.

The issue in this case is whether Congress, by amending the Rehabilitation Act to “make available” the “remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964,” 1 actually limited, in a drastic way, the remedies that were already available to persons aggrieved under § 504 of the Act. No support for such a view can be found in the Act, in the 1978 Amendments, or in the relevant legislative and administrative materials. Indeed, the only support that exists is the decision of the Fourth Circuit in Trageser v. Libbie Rehabilitation Center, 590 F.2d 87 (4th Cir. 1979). Neither that decision, nor those of the other courts that have followed it, can *1273 withstand scrutiny. The Trageser decision has been criticized by the Senate Committee on Labor and Human Resources, 2 by HEW, 3 by the Department of Justice, 4 and *1274 by commentators. 5 It should not be followed by…

677 F.2d 1271 28 Fair Empl.Prac.Cas. 1695 , 29 Empl. Prac. Dec. P 32,848 , 1 A.D. Cases 330 Douglas James SCANLON, Plaintiff-Appellant, v. ATASCADERO STATE HOSPITAL, California Department of Mental Health, Defendants-Appellees. No. 80-5201. United States Court of Appeals, Ninth Circuit. Argued Sept. 15, 1981. Submitted Oct. 15, 1981. Decided May 24, 1982. Marilyn Holle, Western Law Center for the Handicapped, Los Angeles, Cal., for plaintiff-appellant. James E. Ryan, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees; Prudence Kay Poppink, Employment Law Center, San Francisco, Cal., on brief. Appeal from the United States District Court for the Central District of California. Before DUNIWAY and FERGUSON, Circuit Judges, and KELLAM, * District Judge. DUNIWAY, Circuit Judge: 1 We affirm the dismissal of this action, brought under 29 U.S.C. § 794 . 2 I. Facts. 3 Scanlon alleges that he suffers from diabetes mellitus and a lack of vision in one eye, that he was denied a job as a graduate student assistant at Atascadero State Hospital, and that this was discrimination in employment contrary to § 504 of the Rehabilitation Act, 29 U.S.C. § 794 and to various…