CONSOLIDATED RAIL CORPORATION, PETITIONER V. LEE ANN LESTRANGE
DARRONE, AS ADMINISTRATRIX OF THE ESTATE OF THOMAS LESTRANGE

   No. 82-862

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States as Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Interest of the United States
   Summary of argument
   Argument:
      I. Section 504 may be enforced by a private right of action
      II. Section 504 forbids employment discrimination in
          federally assisted programs and activities even if it is not
          a primary purpose of the federal assistance to promote
          employment
          A. The language of Section 504 covers employment
              discrimination comprehensively in all federally assisted
              programs and activities
          B. The legislative history of the Rehabilitation Act of
              1973 shows Congress's intent to cover employment
              discrimination in all federally assisted programs and
              activities
          C. The legislative history of the 1974 amendments reinforces
              the view that Section 504 was originally intended to

cover

              employment discrimination in all federally assisted

programs

              and activities
          D. Administrative regulations and judicial opinions
construed
              Section 504 to prohibit employment discrimination

regardless

              of the purpose of the federal assistance
          E. Section 505(a)(2) was not designed to narrow Section
              504's prohibition against employment discrimination
      III. The case is not moot, since respondent may be entitled
          to recover back pay
      IV. Whether respondent's claim concerns a "program or
          activity receiving Federal financial assistance" is an issue
          not properly presented to this Court
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether a private right of action exists under Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. (Supp. V) 794.

   2. Whether Section 504 forbids employment discrimination in
federally funded programs and activities only where a primary purpose
of the federal funding is to promote employment.

   3. Whether the handicapped applicant in this case was denied
employment in a "program or activity receiving Federal financial
assistance" (29 U.S.C. (Supp. V) 794).

                     INTEREST OF THE UNITED STATES

   The United States has substantial responsibility for enforcing
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. (Supp. V)
794) in connection with federally assisted programs and activities.
/1/ The decision in this case will affect the validity of numerous
regulations carrying out that federal responsibility.  Petitioner asks
this Court to hold that Section 504 permits employment discrimination
unless a primary purpose of federal financial assistance is to provide
employment.  Regulations issued by at least 26 federal agencies have
interpreted the Act otherwise -- as prohibiting employment
discrimination in all programs and activities receiving federal funds
even if it is not a principal purpose of the funds to provide
employment.  /2/ The United States has taken the same position in this
Court /3/ and the lower courts.  /4/ The United States has also
participated as amicus curiae in other cases before this Court
involving Section 504.  /5/

                          SUMMARY OF ARGUMENT

   I. The courts of appeals unanimously agree that Section 504 of the
Rehabilitation Act (29 U.S.C. (Supp. V) 794) may be enforced through a
private right of action.  Its language is virtually identical to the
language of Title IX of the Education Amendments of 1972, 20 U.S.C.
1681, which this Court has held created a private right of action.
Cannon v. University of Chicago, 441 U.S. 677 (1979) ("Cannon").  The
history of Section 504 leads to the same conclusion.  Like Title IX,
it was based on Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, which was understood by the 1973 Congress to authorize a
private cause of action.  The year after the Rehabilitation Act was
passed, Congress explicitly said that Section 504 would "permit a
judicial remedy through a private action." S. Rep. No. 93-1297, 93d
Cong., 2d Sess. 40 (1974).  The purposes of Section 504 are also
congruent with those of Title IX, which Cannon held were served by
private actions.  In fact, in 1978 Congress amended the Rehabilitation
Act to authorize attorneys' fees for victorious suitors.  29 U.S.C.
(Supp. V) 794a(b).

   II. Section 504 forbids employment discrimination in all federally
assisted programs and activities, even if it is not a primary purpose
of the federal assistance to promote employment.

   A. The language of Section 504 supports this conclusion.  It
forbids discrimination against the handicapped in "any program or
activity receiving Federal financial assistance" (emphasis added), not
merely those where a primary purpose of the federal assistance is to
promote employment.  This Court held in North Haven Board of Education
v. Bell, 456 U.S. 512, 529-530 (1982) ("North Haven"), that the
identical language of Title IX forbids employment discrimination
without regard to the purpose for which federal funds were supplied.
It would be particularly perverse to read Section 504 more narrowly,
since a basic goal of the entire Rehabilitation Act was to aid in the
rehabilitation of the handicapped so that they could be employed and
thus participate as useful and productive members in our society.

   B. The legislative history of Section 504 shows that Congress
intended broad coverage of employment discrimination.  Senator
Williams, the chairman of the Senate committee that reported the bill
stated without qualification that it "prohibit(ed) * * *
discrimination in employment in programs assisted with Federal funds *
* *." 119 Cong. Rec. 24588 (1973).

   C. In 1974 Congress amended the Rehabilitation Act to make clear
that employment discrimination was not the only form of discrimination
forbidden by Section 504.  And in 1975 Congress reiterated that
"qualified handicapped individuals who * * * are refused employment by
recipients of assistance * * * are fully covered by the prohibition in
section 504 of the Rehabilitation Act of 1973." S. Rep. No. 94-455,
94th Cong., 1st Sess. 54 (1975) (emphasis added).

   D. The regulations adopted by the Department of Health, Education,
and Welfare to enforce Section 504 forbid employment discrimination in
all federally assisted programs and activities, without regard to the
purpose of the federal assistance.  The courts that interpreted
Section 504 between its enactment in 1973 and the 1978 amendments to
the Act also drew no distinctions based on the purpose of the federal
funding.

   E. Section 505(a)(2) (29 U.S.C. (Supp. V) 794a(a)(2)), added to the
Rehabilitation Act in 1978, was not intended to restrict Section 504's
coverage of employment discrimination.  The language of Section
505(a)(2) suggests no such purpose.  And Congress explicitly stated
that the new section was simply intended to "codif(y)" existing HEW
regulations "as a specific statutory requirement." S. Rep. No. 95-890,
95th Cong., 2d Sess. 19 (1978).  In general, the 1978 amendments were
"designed to enhance the ability of handicapped individuals to assure
compliance with the civil rights provisions of" Section 504 (S. Rep.
No. 95-890, supra, at 18:  emphasis added).

   III. Because respondent may be entitled to recover pack pay, the
case is not moot.  Congress expressly made back pay available to
federal employees who file claims under Section 501 (29 U.S.C. 791).
And the Senate committee that had reported the Rehabilitation Act
stated in 1979 that the same remedy had always been open to Section
504 plaintiffs.  Moreover, this Court suggested in Guardians Ass'n v.
Civil Service Comm'n, No. 81-431 (July 1, 1983), that compensatory
relief such as back pay could be available to private plaintiffs
invoking Title VI against intentionally discriminatory conduct.  That
same relief should be available, by virtue of 29 U.S.C. 794a(a)(2), to
plaintiffs under Section 504.

   IV. The "program or activity" issue advanced by petitioner is not
properly before this Court.  The district court made no factual
findings on the question;  it granted summary judgment without
reaching the issue.  Nor was the issue considered by the court of
appeals.

                               ARGUMENT

      I. SECTION 504 MAY BE ENFORCED BY A PRIVATE RIGHT OF ACTION

   Petitioner argues (Br. 32-40) that there is no private right of
action to enforce Section 504.  This contention has been rejected by
every court of appeals that has considered the question.  /6/ It is
inconsistent with the language and history of the Rehabilitation Act.
It also cannot be squared with this Court's decision in Cannon, supra,
which held that a virtually identical provision in Title IX of the
Education Amendments of 1972 (20 U.S.C. 1681(a) created a private
right of action.

   In determining whether Congress intended to create a private right
of action, "the threshold question * * * is answered by looking to the
language of the statute itself." Cannon, supra, 441 U.S. at 689.
Section 504 provides that (29 U.S.C. (Supp. V) 794)

      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 * * *.

   In Cannon this Court held that Congress's use of indistinguishable
language a year earlier in Title IX was intended to create a private
right of action.  /7/ The Court pointed out that, with the exception
of one "virtually unique situation," "this Court has never refused to
imply a cause of action where the language of the statute explicitly
conferred a right directly on a class of persons that included the
plaintiff in the case." Cannon, supra, 441 U.S. at 690-691 n.13.  The
language of Section 504 confers a right on respondent /8/ in precisely
the same terms as Section 901 conferred a right on Cannon.  /9/

   The history of Section 504 also "rather plainly indicates that
Congress intended to create such a remedy." Cannon, supra, 441 U.S. at
694.  In Cannon this Court concluded that "Congress intended to create
Title IX remedies comparable to those available under Title VI (42
U.S.C. 2000d) and * * * it understood Title VI as authorizing an
implied private cause of action for victims of the prohibited
discrimination" (441 U.S. at 703).  Section 504 was enacted the year
after Title IX, and was also patterned after Title VI.  /10/ When the
Rehabilitation Act was amended in 1974, the Senate report noted that
the

      approach to implementation of section 504, which closely follows
      the models of (Title VI and Title IX), would * * * permit a
      judicial remedy through a private action.

   S. Rep. No. 93-1297, supra, at 40.  /11/ See also S. Rep. No.
96-316, 96th Cong., 1st Sess. 12-13 (1979).

   The Court stated in Cannon that when a private right of action "is
necessary or at least helpful to the accomplishment of the statutory
purpose, the Court is decidedly receptive to its implication under the
statute" (441 U.S. at 703).  Like Title IX and Title VI, Section 504
has two related purposes:  prohibiting the use of federal funds to
support discrimination, and providing individual citizens effective
protection against discrimination.  The first purpose is served by
terminating federal financial aid (see Community Television of
Southern California v. Gottfried, no. 81-298 (Feb. 22, 1983), slip op.
10-11 ("Gottfried")).  But that remedy is a severe and inappropriate
cure for isolated violations.  "The award of individual relief to a
private litigant who has prosecuted her own suit is not only sensible
but is also fully consistent with -- and in some cases even necessary
to -- the orderly enforcement of the statute" (Cannon, supra, 441 U.S.
at 705-706).  The Department of Justice, charged with the
responsibility for coordinating the enforcement of Section 504 (see
note 1, supra), "perceives no inconsistency between the private remedy
and the public remedy" (Cannon, supra, 441 U.S. at 706).  And the
"history of federal-court recognition of a cause of action" (see note
6, supra) is a "further indication of the consistency of (Section
504's) purposes and the existence of a private remedy" (Cannon, supra,
441 U.S. at 706 n.40).  /12/

   The 1978 amendments to the Rehabilitation Act, which according to
petitioner (Br. 34-38) exclude private enforcement, /13/ in fact
afford persuasive evidence of Congress's belief that a private remedy
is essential to accomplish the statutory purposes.  Section 505(b) (29
U.S.C. (Supp. V) 794a(b)) states that

         In any action or proceeding to enforce or charge a violation
      of a provision of this subchapter, the court, in its discretion,
      may allow the prevailing party, other than the United States, a
      reasonable attorney's fee as part of the costs.

   The history of this provision states unequivocally that it was
intended to apply to private plaintiffs.  See, e.g., S. Rep. No.
95-890, supra, at 19;  H.R. Rep. No. 95-1149, 95th Cong., 2d Sess. 21
(1978);  124 Cong. Rec. 30346-30347 (1978) (remarks of Sen. Cranston).
 Cf. Cannon, supra, 441 U.S. at 685-686, 699-701 (similar attorneys'
fees provisions show private enforceability of Titles VI and IX).
/14/

 II. SECTION 504 FORBIDS EMPLOYMENT DISCRIMINATION IN FEDERALLY
ASSISTED PROGRAMS AND ACTIVITIES EVEN IF IT IS NOT A PRIMARY PURPOSE
OF THE FEDERAL ASSISTANCE TO PROMOTE EMPLOYMENT

   The language of Section 504 prohibits discrimination in "any
program or activity receiving Federal financial assistance" (emphasis
added).  Nothing in the history of the Rehabilitation Act of 1973
provides a basis for believing that this comprehensive wording was
implicitly confined -- in the case of employment -- to programs and
activities receiving federal funds for the purpose of promoting
employment.  Indeed, when the Rehabilitation Act was amended in 1974,
Congress found it important to emphasize that protection against
employment discrimination was not the only purpose of Section 504.
Contemporary administrative and judicial construction mirrored
Congress's understanding that Section 504 affords broad protection
against employment discrimination.

   Petitioner nonetheless contends (Br. 4-24) that in Section
505(a)(2) (29 U.S.C. (Supp. V) 794(a)(2)) -- added to the
Rehabilitation Act five years after its passage -- Congress authorized
employment discrimination by federally funded programs unless the
primary purpose of federal funding was to promote employment.  The
language of Section 505(a)(2) does not support that construction.  Nor
did Congress even suggest, when it passed the 1978 amendments, that it
intended to truncate so severely the rights that the 1973 Act had
conferred on handicapped employees.  /15/

 A. The Language Of Section 504 Covers Employment Discrimination
Comprehensively In All Federally Assisted Programs And Activities

   Before we address the effect of the 1978 amendments, on which
petitioner relies so heavily, it is important to examine the coverage
of the Rehabilitation Act during the first five years of its
existence.  Petitioner does not dispute that the language of Section
504 applies to handicapped employees.  That concession is not
surprising, given the identity among Section 504, Section 901(a) of
Title IX (20 U.S.C. 1681(a)), and Section 601 of Title VI (42 U.S.C.
2000d).  See note 7, supra.  Just as "Section 901(a)'s broad directive
that 'no person' may be discriminated against on the basis of gender
appears, on its face, to include employees as well as students" (North
Haven, supra, 456 U.S. at 520), so Section 504's identical command
that no individual may be discriminated against by reason of his
handicap includes employees as well as other handicapped persons.

   But petitioner argues that Section 504 covers employment in only
some federally assisted programs and activities -- those where a
primary purpose of federal aid is to promote employment.  That
contention is difficult to square with the express terms of the 1973
Act.  It is clear from the face of Section 504 that if employment
discrimination is prohibited, it is comprehensively prohibited in "any
program or activity receiving Federal financial assistance * * *."

   In fact, just as the existence of a private right of action was
controlled by Cannon, so this question -- the scope of the federal
prohibition against employment discrimination -- is controlled by
North Haven, another Title IX case.  Petitioners in North Haven argued
(as petitioner does here) that Title IX was based on Title VI, and
that Title VI -- as Section 604 makes clear -- does not cover
employment discrimination "except where a primary objective of the
Federal financial assistance is to provide employment" (42 U.S.
2000d-3).  /16/ This Court answered (456 U.S. at 529-530):

      The meaning and applicability of Title VI are useful guides in
      construing Title IX * * * only to the extent that the language
      and history of Title IX do not suggest a contrary
      interpretation.  * * * If Congress had intended that Title IX
      have the same reach as Title VI, * * * it would have enacted
      counterparts to both Section 601 and Section 604.  For although
      two statutes may be similar in language and objective, we must
      not fail to give effect to the differences between them.

   Like Title IX, the Rehabilitation Act of 1973 included no
counterpart to Section 604.  Yet "(i)f Congress had intended that
(Section 504) have the same reach as Title VI" it would not have
stopped where it did;  for Section 504 "alone (is) not * * * adequate
to exclude employees from the statute's coverage" in the way
petitioner suggests.  North Haven, supra, 456 U.S. at 530.  /17/

   The structure and focus of the Rehabilitation Act as a whole
support the conclusion that Section 504 was meant to forbid employment
discrimination in "any program or activity." The Act was designed to
"promote and expand employment opportunities in the public and private
sectors for handicapped individuals and to place such individuals in
employment" (29 U.S.C. 701(8)).  The very term "handicapped" is
defined in the 1973 Act in terms of an individual's employability.
/18/ Title I of the Act authorized grants to aid the handicapped "so
that such individuals may prepare for and engage in gainful
employment" (29 U.S.C. 720(a)).  And Title V not only forbids
discrimination by recipients of federal funds (Section 504), but also
directs federal agencies and federal contractors to undertake
affirmative action to hire and promote the handicapped (Sections 501,
503, 29 U.S.C. 791, 793).

   It would be remarkable if, in an act whose very focus was on
promoting employment opportunities for handicapped individuals,
Congress had limited its ban on employment discrimination in the
narrow fashion suggested by petitioner.  It is far more faithful to
the intent of Congress, "'if we are to give (Section 504) the scope
that its origins dictate, (to) accord it a sweep as broad as its
language.'" North Haven, supra, 456 U.S. at 521, quoting United States
v. Price, 383 U.S. 787, 801 (1966).

 B. The Legislative History Of The Rehabilitation Act Of 1973 Shows
Congress's Intent To Cover Employment Discrimination In All Federally
Assisted Programs And Activities

   Section 504 originated in the 92d Congress, when numerous proposals
were made to amend Titles VI and VII of the Civil Rights Act of 1964
(42 U.S.C. (& Supp. V) 2000d, 2000e) by including the handicapped
among the protected classes.  /19/ Had those measures been enacted,
they would have forbidden employment discrimination by all employers
of 15 or more, without regard to the receipt (or purpose) of federal
financial assistance.  See 42 U.S.C. 2000e(b), 2000e-2(a)(1);  H.R.
14033, 92d Cong., 2d Sess. Section 1 (1972).  Congress decided,
however, not to extend Title VII to the handicapped.  Instead Congress
chose to include in the Rehabilitation Act the language of Title VI's
prohibition against discrimination (Section 601 -- but not Title VI's
employment limitation (Section 604).  S. 3987, 92d Cong., 2d Sess.
Section 604 (1972) (the original version of Section 504).  Several of
the sponsors of the earlier measures expressed their approval of the
alternative chosen.  Senator Humphrey, for example, stated (118 Cong.
Rec. 32310 (1972)):

         I am deeply gratified at the inclusion of (Section 504 and
      other) provisions, which carry through the intent of original
      bills which I introduced * * * earlier this year, S. 3044 and S.
      3458, to amend, respectively, Titles VI and VII of the Civil
      Rights Act of 1964, to guarantee the right of persons with a
      mental or physical handicap to participate in programs receiving
      Federal assistance, and to make discrimination in employment
      because of these handicaps, and in the absence of a bona fide
      occupational qualification, an unlawful employment practice.

   In the same vein Congressman Vanik, who had introduced similar
bills (see note 19, supra), later stated (119 Cong. Rec. 18137
(1973)):

      (I)t pleases me that the adoption of my proposals to protect the
      rights of handicapped people in employment, and in the issuance
      of Federal grants, have been incorporated into this compromise
      bill.

   When S. 3987, supra, was introduced, Senator Randolph stated that
it would "prohibit() any kind of discrimination against handicapped
individuals with respect to any program receiving Federal financial
assistance." 118 Cong. Rec. 30681 (1972) (emphasis added).  The
proposal proved uncontroversial.  What discussion there was did not go
beyond summaries of its language.  See, e.g., 118 Cong. Rec. 30683
(1972) (remarks of Sen. Cranston).  Though the measure passed by the
House did not include a provision similar to Section 504, the House
receded in conference without comment.  H.R. Rep. No. 92-1581, 92d
Cong., 2d Sess. 78 (1972).  President Nixon pocket vetoed the bill
because it would have authorized funding in excess of budget, and
would have created "numerous committees and independent commissions
which are unnecessary * * *." 118 Cong. Rec. 37203-37204 (1972).

   Similar measures were promptly reintroduced in both houses.  S. 7,
93d Cong., 1st Sess. (1973);  H.R. 17, 93d Cong., 1st Sess. (1973).
In the course of the debate on S. 7 Senator Cranston -- who chaired
the Subcommittee on the Handicapped of the Committee on Labor and
Public Welfare while the bill was being considered -- said in the
course of defending the various commissions called for by the bill
(119 Cong. Rec. 5882 (1973)):

      Such problems as unfounded discrimination in employment and * *
      * difficulties of access to places of work * * * were voiced
      repeatedly to the committee.  * * * (D)iscrimination in
      placement, hiring and advancement continue(s) to limit the
      vocational rehabilitation program's ability to effect successful
      rehabilitations.

                      * * * * *

      The expenditure of money on vocational rehabilitation programs
      is not well spent if we do not at the same time take meaningful
      steps to * * * provide substantial accomplishments in employment
      for handicapped individuals.

   Senator Javits, a co-sponsor of the Act and a member of the
subcommittee, described the bill generally as "provid(ing) new
emphasis on * * * opportunities for employment of the handicapped"
(id. at 5887).  President Nixon again vetoed the measure (id. at
9597).

   Again similar bills were introduced in both houses.  H.R. 8070, 93d
Cong., 1st Sess. (1973);  S. 1875, 93d Cong., 1st Sess. (1973).  The
Senate Report on S. 1875, S. Rep. No. 93-318, 93d Cong., 1st Sess. 4
(1973), stated that hearings on the legislation had shown a "lack of
action in areas related to rehabilitation which limit a handicapped
individual's ability to function in society, e.g., employment
discrimination * * *." The same theme was stressed by Senator Taft
during floor debate on the bill (119 Cong. Rec. 24587 (1973)):

      Too many handicapped Americans * * * lack jobs, and too many are
      underemployed * * *.

         (I)f we are to assure that all handicapped persons may
      participate fully in the rewards made possible by the vocational
      rehabilitation program, we must devote more of our energy toward
      the elimination of the most disgraceful barrier of all --
      discrimination.

   Perhaps the most direct observation on the intended scope of
Section 504 was offered by Senator Williams, the chairman of the
Committee on Labor and Public Welfare.  He stressed that the modified
bill, unlike the two that had been vetoed, had the support of the
administration.  The bill nonetheless retained features from the
earlier measures that the Committee, in the course of its hearings,
had found necessary (119 Cong. Rec. 24587-24588 (1973);  emphasis
added):

      The committee also found it necessary to * * * grapple with
      problems, which while not related solely to rehabilitation, pose
      serious problems for handicapped individuals in becoming
      employed (and) staying employed * * *.  In this respect the
      committee paid special attention to the problems of employment,
      discrimination, (and so on.)

         Mr. President, S. 1875 retains many of the provisions
      contained in the previous legislation.  These include:

                      * * * * *

         Second, * * * prohibitions against discrimination in
      employment in programs assisted with Federal funds * * *.

   It is true that Congress's discussion of Section 504 does not
explicitly reject the notion that employment discrimination is
forbidden only where a primary purpose of the federal assistance is to
promote employment.  But it would be surprising if that issue had
arisen, since the language of the section suggests no such
restriction.  More important, the bill contained no counterpart to
Section 604 of Title VI, and no hint that any parallel restriction was
contemplated.  What the legislative history does show, on the other
hand, is an unqualified concern that employment discrimination could
cancel out whatever advances the Act made in rehabilitation of the
handicapped, and a corresponding purpose to "prohibit() * * *
discrimination in employment in programs assisted with Federal funds"
(119 Cong. Rec. 24588 (1973)).

 C. The Legislative History Of The 1974 Amendments Reinforces The View
That Section 504 Was Originally Intended To Cover Employment
Discrimination In All Federally Assisted Programs And Activities

   "Although postenactment developments cannot be accorded 'the weight
of contemporary legislative history'" (North Haven, supra, 456 U.S. at
535, quoting Cannon, supra, 441 U.S. at 687 n.7), certain "subsequent
events * * * lend credence to the * * * interpretation" given Section
504 by the agencies charged with implementing it (ibid.).  See note 2,
supra.  In 1974 the Rehabilitation Act was amended by the same
Congress that had enacted it a year earlier.  /20/ Section 504 itself
was not altered.  But the definition of "handicapped" was changed to
make clear that employment discrimination was not the only form of
discrimination covered by Section 504.  /21/ The Senate committee
report /22/ explained (S. Rep. No. 93-1297, supra, at 37 (emphasis
added)):

         Section 7(6) of the Rehabilitation Act of 1973 defines
      "handicapped individual." That definition has proven to be
      troublesome in its application to provisions of the Act such as
      sections 503 and 504 because of its orientation toward
      employment and its relation to vocational rehabilitation
      services.  It was clearly the intent of Congress in adopting
      section 503 (affirmative action) and section 504
      (nondiscrimination) that the term "handicapped individual" in
      those sections was not to be narrowly limited to employment (in
      the case of section 504) * * *.

   Thus, far from suggesting that Section 504's employment coverage
was limited, Congress in 1974 found it necessary to dispel the
impression that it had nothing else on its mind.  /23/

   The Senate report went on to say (S. Rep. No. 93-1297, supra, at
39):

         Section 504 was patterned after, and is almost identical to,
      the antidiscrimination language of section 601 of the Civil
      Rights Act of 1964 * * *, and section 901 of the Education
      Amendments of 1972 * * *.  The section therefore constitutes the
      establishment of a broad government policy that programs
      receiving Federal financial assistance shall be operated without
      discrimination on the basis of handicap.

   There is no reference here to Section 604, and no suggestion of any
limitation on the "broad government policy" against discrimination.
/24/

 D. Administrative Regulations And Judicial Opinions Construed Section
504 To Prohibit Employment Discrimination Regardless Of The Purpose Of
The Federal Assistance

   In passing the 1974 amendments to the Rehabilitation Act, Congress
expressed its desire that an administrative program to enforce the Act
-- like those adopted for Titles VI and IX -- be created by
regulation.  S. Rep. No. 93-1297, supra, at 39-40.  See also 120 Cong.
Rec. 15743 (1974) (remarks of Rep. Vanik).  The President designated
the Department of Health, Education, and Welfare ("HEW") as the agency
responsible for coordinating Section 504 enforcement.  Exec. Order No.
11914, supra note 1.  HEW therefore proposed (41 Fed. Reg. 29548
(1976)) and thereafter promulgated (42 Fed. Reg. 22676 (1977))
departmental regulations to govern its own recipients' activities.
HEW noted that Section 504 differed "from Title VI in the extent to
which it applies to employment practices" (41 Fed. Reg. 29548).  The
departmental regulations interpreted Section 504 to prohibit all
employment discrimination regardless of the purpose of federal
financial assistance.  (42 Fed. Reg. 22680, 22688.) HEW later
promulgated its coordinating regulations pursuant to Exec. Order No.
11914;  these also interpreted Section 504 to forbid employment
discrimination in all federally assisted programs and activities,
without regard to the purpose of the federal assistance.  43 Fed. Reg.
2132, 2138 (1978).  /25/

   The early judicial decisions interpreting Section 504 also
entertained claims asserting employment discrimination without
inquiring into the purpose of federal financial assistance.  /26/

   It is against this background of statutory language and structure,
legislative history, administrative regulation, and judicial
interpretation, that Section 505(a)(2) was enacted in 1978.

 E. Section 505(a)(2) Was Not Designed to Narrow Section 504's
Prohibition Against Employment Discrimination

   When the Rehabilitation, Comprehensive Services and Developmental
Disabilities Amendments were passed in 1978, Pub. L. No. 95-602, 92
Stat. 2955, it was well established that Section 504 protected the
handicapped against employment discrimination whenever there existed
federal financial assistance, without regard to its purpose.  Neither
the language of Section 505(a)(2) (29 U.S.C. (Supp. V) 794a(a)(2)) nor
its history suggests that Congress intended in 1978 radically to
reverse this policy against employment discrimination.

   Petitioner's arguments (Br. 5-10) transform Section 505(a)(2) into
a remarkable Trojan horse.  According to petitioner, that Section
introduces into the Rehabilitation Act all of Title VI, including
Section 604 (42 U.S.C. 2000d-3), which forbids federal agencies to cut
off funding or otherwise redress racial discrimination "except where a
primary objective of the Federal financial assistance is to provide
employment."

   Such a conclusion is certainly not compelled by the language of
Section 505(a)(2), which says:

      The remedies, procedures, and rights set forth in title VI * * *
      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 * * *.

   Unlike Section 601 (42 U.S.C. 2000d) (which Congress understood to
create a private "right" of action), Section 602 (42 U.S.C. 2000d-1)
(which directs the creation of remedies and procedures to enforce
Title VI rights), and Section 603 (42 U.S.C. 2000d-2) (which
authorizes judicial review of funds cutoffs), Section 604 "set(s)
forth" no "remedies, procedures, (or) rights." It is a substantive
limitation on the scope of Title VI, /27/ limiting the protection it
affords to employees.  Nor does Section 604 make anything at all
"available" to anyone;  it would therefore seem peculiar to speak of
making its limitation "available" to persons aggrieved under the
Rehabilitation Act.  Section 505(a)(2) is plainly designed to make
"available" to the handicapped options that may be selected, not to
create an absolute limitation on the reach of the statute.  Finally,
Section 505(a)(2) says that Title VI's remedies, rights, and
procedures are open to "any person aggrieved by any act * * * by any
recipient of Federal assistance" -- terms hardly consistent with
employment coverage that applies only to some recipients.

   The legislative history of the 1978 amendments shows that
Congress's purpose was to incorporate Title VI's enforcement
procedures, not to restrict Section 504's substantive coverage.  In
1974 Congress noted that Section 504 was patterned after Titles VI and
IX, and was intended to be enforced through regulations and procedures
like the ones adopted under those titles.  S. Rep. No. 93-1297, supra,
at 39-40.  As examples of what it meant, Congress cited (id. at 40) "a
judicial remedy through a private action" (cf. Section 601, 42 U.S.C.
2000d);  agency regulations providing for investigation and review of
funds recipients and for enforcement through voluntary means (or,
where necessary, funds cutoff) (cf. Section 602, 42 U.S.C. 2000d-1);
and administrative due process, including a "right to review" (cf.
Section 603, 42 U.S.C. 2000d-2).  HEW thereafter proposed its
departmental and coordinating regulations, which it "la(id) * * *
before the Congress so that it (could) provide whatever clarification
(was) appropriate." /28/ Those regulations -- though conforming in
other respects to the Title VI and Title IX procedures -- prohibited
all employment discrimination regardless of the purposes of federal
financial assistance.  See page 20, supra.

   Section 505(a)(2) originated in the Senate, and the committee
report on the bill, referring to that background, stated:

         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, supra, at 19.  It is unlikely that, as
petitioner argues (Br. 21), Congress simply "overlooked" HEW's
coverage of all employment discrimination.  /29/ A more obvious
explanation for the committee's statement is simply that the phrase
"procedures, remedies, and rights" did not refer to substantive
limitations like that in Section 604 of Title VI.

   That Congress chose not to incorporate Section 604 into the
Rehabilitation Act should hardly occasion surprise.  After all, Title
VII's employment remedies are available to supplement funds cutoffs
under Title VI (see page 14, supra).  But Title VII remedies are not
generally available to handicapped employees.  Moreover, the
overriding purpose of the 1978 amendments was to expand, not contract,
the rights of the handicapped.  Thus, Section 505(a)(1) (29 U.S.C.
(Supp. V) 794a(a)(1)) made Title VII remedies available to handicapped
federal employees, who had theretofore had no private right of action.
 And Section 505(b) (29 U.S.C. (Supp. V) 794a(b)) for the first time
allowed attorneys' fees to "assist handicapped individuals in securing
the legal protection guaranteed them under title V of the
(Rehabilitation A)ct." H.R. Rep. No. 95-1149, supra, at 21.  /30/ It
is unlikely that Congress would have sandwiched between those two
provisions a section whose unspoken purpose was to eliminate a large
part of the protection that Section 504 gave private employees.
Rather, as the Senate report stated, Sections 505(a) and (b) were
"designed to enhance the ability of handicapped individuals to assure
compliance with the civil rights provisions of title V * * *." S. Rep.
No. 95-890, supra, at 18 (emphasis added).  /31/

 III. THE CASE IS NOT MOOT, SINCE RESPONDENT MAY BE ENTITLED TO
RECOVER BACK PAY

   The original complaint in this action sought injunctive relief,
back pay, punitive damages, and costs and attorney's fees (J.A. A7,
A9).  LeStrange having died, the claim for injunctive relief is moot
(Pet. Br. 31).  Contrary to petitioner's contention (id. at 40-47),
however, respondent may be entitled to seek back pay for a violation
of Section 504.  The case itself is thus not moot.  Powell v.
McCormack, 395 U.S. 486, 496-500 (1969);  Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1, 8-9 (1978).  /32/

   In the 1978 amendments to the Rehabilitation Act, Congress
explicitly granted handicapped federal employees the right to collect
back pay under Section 501 (29 U.S.C. 791).  Regarding the new Section
505(a)(1) (29 U.S.C. (Supp. V) 794(a)(1)) the Senate report said:

      (A)pplication of title VII will make available "back pay" as a
      remedy for a handicapped individual when he or she is the
      prevailing party.  A recent Supreme Court decision provided that
      back pay will not be provided as a remedy by the Federal
      Government unless specifically allowed by Federal statute
      (United States v. Testan, 424 U.S. 392 (1976)).

   S. Rep. No. 95-890, supra, at 19.

   Of course no such "specific()" authorization was required in the
case of suits against private funds recipients.  Section 505(a)(1) was
thus simply designed to equalize the treatment accorded federal
employees (under Section 501) and private employees (under Section
504).  As the Senate Committee on Labor and Human Resources noted in
1979:

         It is, and has always been the Committee's intent that any
      handicapped individual aggrieved by a violation of title V has
      the right under existing law to proceed privately in federal
      court to enforce the rights and remedies afforded under title V
      of the Rehabilitation Act of 1973, as amended, and to receive
      back pay and attorney's fees if successful.

   S. Rep. No. 96-316, supra, at 12-13.

   In Guardians Ass'n v. Civil Service Comm'n, No. 81-431 (July 1,
1983), a majority of this Court suggested that compensatory relief
such as back pay could be available to private plaintiffs invoking
Title VI against intentionally discriminatory conduct.  Slip op. 15
(opinion of White, J.);  slip op. 10-20 (Marshall, J., dissenting);
slip op. 2-5 (Stevens, J., dissenting).  In Guardians Justice White
found that no compensatory relief was available because there had been
no proof of intentional discrimination.  /33/ In such cases, he
pointed out, imposition of monetary awards could simply encourage a
recipient to "terminate its receipt of federal money rather than
assume the unanticipated burdens" (slip op. 14).  By contrast (slip
op. 15;  footnote omitted):

      (i)n cases where intentional discrimination has been shown,
      there can be no question as to what the recipient's obligation
      under the program was and no question that the recipient was
      aware of that obligation.  In such situations, it may be that
      the victim of the intentional discrimination should be entitled
      to a compensatory award, as well as to prospective relief in the
      event the state continues with the program.

   In this case the complaint alleged that petitioner "has
maliciously, willfully and purposely discriminated against the
plaintiff since 1973, solely because the plaintiff is handicapped.
Despite the fact that the plaintiff has at all times been ready,
willing and able to return to gainful employment with Conrail, the
defendant has refused to rehire the plaintiff as an engineer" (J.A.
A8-A9).  Although respondent denied that allegation (id. at A11), the
district court made no findings relevant to the issue, and the court
of appeals did not address it.  Thus even if the "intent" standard
that governed the Title VI compensatory claims in the Court's decision
in Guardians is (by virtue of Section 505(a)(2), 29 U.S.C. 794a(a)(2))
equally applicable to Section 504, it remains open in this case for
respondent to prove her entitlement to such relief.

 IV. WHETHER RESPONDENT'S CLAIM CONCERNS A "PROGRAM OR ACTIVITY
RECEIVING FEDERAL FINANCIAL ASSISTANCE" IS AN ISSUE NOT PROPERLY
PRESENTED TO THIS COURT

   Petitioner argues (Br. 24-30) that the court of appeals failed to
require a nexus between a specific federally assisted program and the
denial of employment to respondent, thereby violating the
"program-specific" nature of Section 504.  In fact, the district court
granted summary judgment without reaching this question, and the issue
was therefore not before the court of appeals.  Neither is it properly
presented in this Court.

   The evidence before the district court at the time petitioner moved
for summary judgment showed that petitioner has received two kinds of
federal financial assistance.  First, the United States Railway
Association ("USRA"), a government corporation established by the
Regional Rail Reorganization Act of 1973, 45 U.S.C. (&Supp. V) 711
("3R Act"), has purchased series A preferred stock and debentures from
petitioner in the amount of $3.28 billion (J.A. A15-A17;  45 U.S.C. (&
Supp. V) 726).  These funds have been used in part to cover operating
expenses not met by operating revenues (J.A. A15-A17;  45 U.S.C.
726(b)(1)(D)).  Second, petitioner has received funds under Title V of
the 3R Act (45 U.S.C. (& Supp. V) 771 et seq.), which provided certain
benefits to railroad employees in order to protect them against the
adverse consequences of consolidation.  /34/

   The district court granted petitioner's motion for summary
judgment, holding simply that respondent lacked "standing" to sue
under Section 504 (Pet. App. A46).  That was so, the court condluded,
because Section 504 does not forbid employment discrimination unless
the primary purpose of the federal financial assistance was to promote
employment.  Since, according to the district court, petitioner
received no funding for that purpose (Pet. App. A37), respondent could
not sue.  /35/ Having so decided, the court found it unnecessary to
consider whether respondent had sought employment in a "program or
activity" that received federal assistance.

   The court of appeals did not hold that petitioner would be liable
for discrimination even if it did not occur in a federally assisted
program or activity.  /36/ Rather, the court disposed of the case in
the same way this Court decided North Haven, supra, 456 U.S. at
539-540.  The court simply held that Section 504 prohibited employment
discrimination in federally assisted programs irrespective of the
purpose of the federal assistance.  It did not consider -- nor did it
have any factual basis for deciding -- whether the discrimination
alleged here had occurred in a federally assisted program or activity.

   This Court, like the court of appeals, has no factual findings from
the district court with which to address this question.  It should
therefore not decide it.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   CHARLES J. COOPER

   J. HARVIE WILKINSON, III

      Deputy Assistant Attorneys General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   BRIAN K. LANDSBERG

   JOAN S. MAGAGNA

      Attorneys

   JULY 1983

   /1/ In 1976 the President directed the Secretary of Health,
Education, and Welfare to "establish standards for determining who are
handicapped individuals and guidelines for determining what are
discriminatory practices, within the meaning of Section 504." Exec.
Order No. 11914, 41 Fed. Reg. 17871 (1976).  The Secretary issued
detailed regulations.  See 45 C.F.R. Part 85 (1978).  In 1980, the
Secretary's responsibility was transferred to the Attorney General,
Exec. Order No. 12250 (45 Fed. Reg. 72995 (1980)), and the regulations
were "deemed to have been issued by the Attorney General" (id. at
72997;  see 28 C.F.R. Part 41).  The regulations require each federal
agency to issue its own regulations concerning handicap discrimination
in the programs and activities financially assisted by that agency.
28 C.F.R. 41.4.

   /2/ 5 C.F.R. 900.706 (OPM);  7 C.F.R. 15b.11-15b.15 (DOA);  10
C.F.R. 4.122-4.125 (NRC);  10 C.F.R. 1040.66-1040.69 (DOE);  13 C.F.R.
113.3(c) (SBA);  14 C.F.R. 1251.200-1251.203 (NASA);  15 C.F.R.
8b.11-8b.15 (Dept. of Commerce);  18 C.F.R. 1307.5 (TVA);  22 C.F.R.
142.11-142.14 (Dept. of State);  22 C.F.R. 217.11-217.14 (AID);  48
Fed. Reg. 20652-20653 (1983) (to be codified at 24 C.F.R. 8.10-8.13)
(HUD);  28 C.F.R. 42.510-42.513 (DOJ);  29 C.F.R. 32.12-32.17 (DOL);
31 C.F.R. 51.55 (Dept. of Treasury);  32 C.F.R. 56.8(b) (DOD);  34
C.F.R. 104.11-104.14 (Dept. of Ed.);  38 C.F.R. 18.411-18.414 (VA);
41 C.F.R. 101-8.305 to 101-8.308 (GSA);  43 C.F.R. 17.210-17.213
(DOI);  45 C.F.R. 84.11-84.14 (HHS);  45 C.F.R. 605.11-605.14 (NSF);
45 C.F.R. 1151.31-1151.34 (NEA);  45 C.F.R. 1170.21-1170.24 (NEH);  45
C.F.R. 1232.9-1232.12 (ACTION);  45 C.F.R. 1624.6 (Legal Services
Corp.);  49 C.F.R. 27.31-27.37 (DOT).

   /3/ Trageser v. Libbie Rehabilitation Center, Inc., cert. denied,
442 U.S. 947 (1979).

   /4/ United States v. Cabrini Medical Center, 639 F.2d 908 (2d Cir.
1981);  Trageser v. Libbie Rehabilitation Center, Inc., supra, 590
F.2d 87 (4th Cir. 1978);  Scanlon v. Atascadero State Hospital, 677
F.2d 1271 (9th Cir. 1982), petition for cert. pending, No. 82-5812
(filed Nov. 22, 1982).

   /5/ Southeastern Community College v. Davis, 442 U.S. 397 (1979);
University of Texas v. Camenisch, 451 U.S. 390 (1981).  We argued in
Davis and Camenisch that Section 504 affords a private right of
action, a proposition which petitioner challenges here.

   /6/ See Miener v. State of Missouri, 673 F.2d 969, 973-975 (8th
Cir.), cert. denied, No. 82-275 (Oct. 12, 1982);  Pushkin v. Regents
of the University of Colorado, 658 F.2d 1372, 1376-1380 (10th Cir.
1981);  Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir.
1980);  Camenisch v. University of Texas, 616 F.2d 127, 131 (5th Cir.
1980), vacated on other grounds, 451 U.S. 390 (1981);  NAACP v.
Medical Center, 599 F.2d 1247, 1258-1259 (3d Cir. 1979);  Davis v.
Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978),
rev'd on other grounds, 442 U.S. 397 (1979);  Kampmeier v. Nyquist,
553 F.2d 296, 299 (2d Cir. 1977);  Lloyd v. Regional Transportation
Authority, 548 F.2d 1277, 1284-1287 (7th Cir. 1977).

   /7/ Section 901(a) states (20 U.S.C. 1681(a)):

      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 * * *.

   Both Section 504 and Section 901 are modeled after Section 601 of
the Civil Rights Act of 1964, 42 U.S.C. 2000d.  See Community
Television of Southern California v. Gottfried, No. 81-298 (Feb. 22,
1983), slip op. 11;  North Haven Board of Education v. Bell, supra,
456 U.S. at 529.

   /8/ Petitioner concedes that any private right of action under
Section 504 survives Thomas LeStrange's death (Br. 31 n.23).

   /9/ Petitioner states at several points (Br. 4, 15, 36) that the
failure to provide explicit remedies in the original Rehabilitation
Act shows that Congress intended in Section 504 only to make a
statement of policy, not to create enforceable rights.  This
contention ignores the language of Section 504, which, like Titles VI
and IX, speaks in mandatory rather than hortatory terms:  "No * * *
individual * * * shall * * * be excluded * * *, be denied * * *, or be
subjected to discrimination * * *." Such "right- or duty-creating
language" has been found to be "the most accurate indicator of the
propriety of implication of a cause of action." Cannon, supra, 441
U.S. at 690 n.13.  Section 504's language is markedly dissimilar to
that found in congressional statements of policy.  Cf. Pennhurst State
School v. Halderman, 451 U.S. 1, 19 (1981) (Congress made "findings"
concerning rights).

   Petitioner also emphasizes statements in several committee reports
that "'proclaim a policy of nondiscrimination'" (Br. 15, quoting S.
Rep. No. 92-1135, 92d Cong., 2d Sess. 49 (1972)).  But those same
reports state that Section 504 "prohibits discrimination" and imposes
a "requirement of * * * nondiscrimination * * *." Id. at 6, 9, 77;  S.
Rep. No. 93-318, 93d Cong., 1st Sess. 70 (1973).  See also S. Rep. No.
93-48, 93d Cong., 1st Sess. 53, 80 (1973).  It is highly unlikely that
Congress would have borrowed the language of Title VI, which the
courts had already ruled created a private right of action (see cases
cited in Cannon, supra, 441 U.S. at 696-697 n.21), if it had meant to
confine itself to a declaration of policy.

   /10/ See note 7, supra.  In fact, the provision that ultimately
became Section 504 was written in 1972, by the same Congress that
enacted Title IX.  See pages 13-15, infra.

   /11/ Petitioner suggests (Br. 36-37) that the reference to "a
judicial remedy through a private action" in the 1974 Senate report
concerns "the right to judicial review of an agency's decision to
terminate or continue the federal funding of a program or activity * *
*." If so, the mention of a private right of action is redundant;  the
same sentence in the report also states that there is a "right to
review" of administrative decisions.  S. Rep. No. 92-1297, supra, at
40.

   /12/ Petitioner argues (Br. 39-40) that the existence of a private
right of action would interfere, in some unspecified way, with
administrative enforcement of Section 504.  But petitioner overlooks
the fact that this Court "has never withheld a private remedy where
the statute explicitly confers a benefit on a class of persons and
where it does not assure those persons the ability to activate and
participate in the administrative process contemplated by the statute"
(Cannon, supra, 441 U.S. at 707 n.41;  emphasis added).  Like the
procedures under Title IX (see 441 U.S. at 707 n.41), the
administrative enforcement mechanism under Section 504 provides no
role for the complainant in the investigation and subsequent
proceedings, and offers no assurance of relief for the complainant
even if a violation is found.  See Pushkin v. Regents of the
University of Colorado, supra, 658 F.2d at 1381-1382;  Camenisch v.
University of Texas, supra, 616 F.2d at 132, 135.

   /13/ Petitioner argues (Br. 34-35) that Section 505(a)(2) (29
U.S.C. (Supp. V) 794a(a)(2)) was intended to limit "whatever implied
enforcement rights previously existed" (Br. 37).  That Section states
that "(t)he remedies, procedures, and rights set forth in title VI * *
* shall be available to any person aggrieved by any act or failure to
act by any recipient of Federal assistance * * *." Petitioner claims
that because no private right of action is explicitly "set forth" in
Title VI, the remedies now open to Section 504 plaintiffs are actually
less generous than those available to Title VI victims.  There is no
hint in the 1978 legislative history that Section 505(a)(2) was
enacted with such a retrograde purpose.

   /14/ The fourth factor mentioned in Cannon -- this Court's
hesitance to imply a federal remedy in areas basically of concern to
the states -- presents no more difficulty here than it did there,
since it is again "the expenditure of federal funds that provides the
justification for this particular statutory prohibition" (441 U.S. at
708-709).

   This Court's recent decision in Guardians Ass'n v. Civil Service
Comm'n, No. 81-431 (July 1, 1983), does nothing to undermine the
conclusion that a private right of action is available to enforce
Section 504.  A majority of the Court there concluded "that Title VI *
* * could be enforced in a private action against a state or local
agency receiving federal funds" (slip op. 12 (opinion of White, J.),
slip op. 10-13 (opinion of Marshall, J.), slip op. 1-2 (opinion of
Stevens, J.)).  It is true, however, that in this case, unlike in
Guardians (see slip op. 12 (opinion of White, J.)), there is no viable
claim under 42 U.S.C. 1983 to provide an alternative basis for such a
private action.  The district court dismissed LeStrange's Section 1983
claim (Pet. App. A54-A57), and LeStrange did not appeal the dismissal.

   /15/ The courts of appeals are split on this issue.  The court of
appeals here and the Eleventh Circuit (Jones v. MARTA, 681 F.2d 1376
(11th Cir. 1982), petition for cert. pending, No. 82-1159 (filed Jan.
11, 1983)), have held that Section 504 prohibits employment
discrimination regardless of the purpose of the federal assistance.
The Second, Fourth, Eighth and Ninth Circuits have adopted the
narrower view espoused by petitioner.  United States v. Cabrini
Medical Center, 639 F.2d 908 (2d Cir. 1981);  Trageser v. Libbie
Rehabilitation Center, 590 F.2d 87 (4th Cir. 1978), cert. denied, 442
U.S. 947 (1979);  Carmi v. Metropolitan St. Louis Sewer District, 620
F.2d 672 (8th Cir.), cert. denied, 449 U.S. 892 (1980);  Scanlon v.
Atascadero State Hospital, 677 F.2d 1271 (9th Cir. 1982), petition for
cert. pending, No. 82-5812 (filed Nov. 22, 1982);  Meyerson v.
Arizona, No. 81-5996 (9th Cir. May 9, 1983).  See also Ward v. MBTA,
550 F. Supp. 1310 (1982), appeal pending, No. 82-1918 (1st Cir.).

   /16/ Section 604 (42 U.S.C. 2000d-3) provides in full:

         Nothing contained in this subchapter shall be construed to
      authorize action under this subchapter by any department or
      agency with respect to any employment practice of any employer,
      employment agency, or labor organization except where a primary
      objective of the Federal financial assistance is to provide
      employment.

   /17/ Petitioner correctly points out (Br. 7-8) that in passing
Title IX Congress expressly rejected a provision similar to Section
604;  no similar provision was even proposed for inclusion in the
Rehabilitation Act of 1973.  But it is hardly surprising that Congress
-- having rejected Section 604 in 1972 -- was unwilling to go through
the motions again in 1973.

   /18/ Section 7(6) of the Rehabilitation Act (29 U.S.C. (Supp. III
1970 ed.) 706(6)) defined "handicapped individual" as "any individual
who (A) has a physical or mental disability which for such individual
constitutes or results in a substantial handicap to employment and (B)
can reasonably be expected to benefit in terms of employability from
vocational rehabilitation services provided pursuant to titles I and
III of this Act."

   /19/ Bills introduced in the 92d Congress to amend Title VI
included:  H.R. 12154, 92d Cong., 1st Sess. (1971) (Rep. Vanik);  H.R.
12737, 92d Cong., 2d Sess. (1972) (Rep. Abzug);  H.R. 13009, 92d
Cong., 2d Sess. (1972) (Rep. Vanik et al.);  H.R. 13297, 92d Cong., 2d
Sess. (1972) (Rep. Roybal);  H.R. 13306, 92d Cong., 2d Sess. (1972)
(Rep. Vanik et al.);  H.R. 13947, 92d Cong., 2d Sess. (1972) (Rep.
Vanik et al.);  H.R. 14117, 92d Cong., 2d Sess. (1972) (Rep. Halpern);
 H.R. 14517, 92d Cong., 2d Sess. (1972) (Rep. Dow);  H.R. 15012, 92d
Cong., 2d Sess. (1972) (Rep. Steele);  H.R. 15371, 92d Sess. (1972)
(Rep. Harrington);  S. 3044, 92d Cong., 2d Sess. (1972) (Sen. Humphrey
et al.).

   Bills introduced in the 92d Congress to amend Title VII included:
H.R. 10962, 92d Cong., 1st Sess. (1971) (Rep. Hicks);  H.R. 10996, 92d
Cong., 1st Sess. (1971) (Rep. Hicks);  H.R. 14033, 92d Cong., 2d Sess.
(1972) (Rep. Vanik);  H.R. 15678, 92d Cong., 2d Sess. (1972) (Rep.
Ashley);  S. 3458, 92d Cong., 2d Sess. (1972) (Sen. Humphrey et al.).

   Similar legislation to include the handicapped within the
protection of Title VII was introduced in the 93d Congress.  See,
e.g., H.R. 2685, 93d Cong., 1st Sess. (1973) (Rep. Hicks);  H.R.
10960, 93d Cong., 1st Sess. (1973) (Rep. Tiernan);  H.R. 11986, 93d
Cong., 1st Sess. (1973) (Rep. Hicks et al.);  H.R. 11987, 93d Cong.,
1st Sess. (1973) (Rep. Hicks et al.);  S. 1780, 93d Cong., 1st Sess.
(1973) (Sen. Pell).

   /20/ Pub. L. No. 93-516, 88 Stat. 1617.  The 1974 amendments
expanded the focus on employment of the handicapped.  In addition to
increasing the authorization for the original rehabilitation program,
the amendments strengthened the federal blind vendor program (Title
II, 88 Stat. 1622), and established the White House Conference on
Handicapped Individuals (Title III, 88 Stat. 1631) to consider, among
other things, recommendations "assuring individuals with handicaps of
equal opportunity with others to engage in gainful employment" (88
Stat. 1632).

   /21/ The original definition of "handicapped individual" (see note
18, supra) was amended to read:  "For the purposes of subchapters IV
and V of this Act, such term means any person who (A) has a physical
or mental impairment which substantially limits one or more of such
person's major life activities, (B) has a record of such an
impairment, or (C) is regarded as having such an impairment." 29
U.S.C. 706(6).

   /22/ This Court relied on S. Rep. No. 93-1297 in Gottfried, supra,
slip op. 11, as evidence of Congress's original understanding of
Section 504.  See also Glidden Company v. Zdanok, 370 U.S. 530,
541-542 (1962) (plurality opinion);  FHA v. The Darlington, Inc., 358
U.S. 84, 90 (1958).

   /23/ See also S. Rep. No. 93-1297, supra, at 63-64 (the new
definition would provide sufficient latitude "for the
nondiscrimination programs carried out under sections 501, 503, and
504 with respect to the employment of handicapped individuals in the
Federal Government, under Federal contracts and subcontracts, pursuant
to the provision of Federal financial assistance, and in the State
rehabilitation agencies and local facilities, and the participation of
handicapped individuals in any program or activity receiving Federal
financial assistance").

   /24/ See also S. Rep. No. 94-455, supra, at 54 ("It is clear that
qualified handicapped individuals who, because of their handicap, are
refused employment by recipients of assistance under the (Education
for All Handicapped Children) Act are fully covered by the prohibition
in section 504 of the Rehabilitation Act of 1973.");  122 Cong. Rec.
3257 (1976) (remarks of Rep. Dodd).

   /25/ Other federal agencies providing financial assistance
thereafter issued their own regulations patterned on the HEW
coordinating regulations.  See note 2, supra.  Among them is the
Department of Transportation, from whom petitioner receives financial
assistance (Pet. Br. 22 n.18).  HEW's coordinating and enforcement
authority for Section 504 was transferred to the Department of Justice
in 1980.  See note 1, supra.  HEW's regulations remain in effect
pending the adoption of new regulations by the Department of Justice.
46 Fed. Reg. 40686-40687 (1981).

   Petitioner contends (Br. 22) -- relying on this Court's decision in
Southeastern Community College v. Davis, supra, 442 U.S. at 411 n.11
-- that HEW's regulations are entitled to little weight because they
were not promulgated until three years after passage of the
Rehabilitation Act.  Davis held that HEW's regulations, if they in
fact imposed the kind of affirmative action requirement urged by Davis
(a matter about which this Court expressed some doubt, 442 U.S. at
409-410), misunderstood Congress's intent in that regard (id. at
411-412).  That is a far cry from holding that the regulations depart
from Congress's intent respecting the basic issue of coverage at stake
here.  Nor is it proper to conclude that the regulations are entitled
to little deference in general.  This Court relied on them to support
its interpretation ot the term "otherwise qualified" in Davis, 442
U.S. at 406, and acknowledged in Gottfried (slip op. 11 & n.15) that
HEW had responsibility for coordination and enforcement of Section
504.

   /26/ See Gurmankin v. Costanzo, 411 F.Supp. 982, 989 (E.D. Pa.
1976), aff'd on other grounds, 556 F.2d 184 (3d Cir. 1977);  Whitaker
v. Board of Higher Education, 461 F.Supp. 99, 106-109 (E.D.N.Y. 1978);
 Davis v. Bucher, 451 F.Supp. 791 (E.D. Pa. 1978);  Duran v. City of
Tampa, 430 F.Supp. 75 (M.D. Fla. 1977), 451 F.Supp. 954 (M.D. Fla.
1978);  Drennon v. Philadelphia General Hospital, 428 F.Supp. 809
(E.D. Pa. 1977).

   /27/ It has been suggested that Section 604, which is addressed to
action by "any department or agency" (42 U.S.C. 2000d-3), does not
limit the right of private plaintiffs to seek relief for employment
discrimination.  See Comment, Employment Discrimination Against the
Handicapped:  Can Trageser() Repeal the Private Right of Action?, 54
N.Y.U. L. Rev. 1173, 1185-1191 (1979).  But see Feliciano v. Romney,
363 F.Supp. 656 (S.D.N.Y. 1973);  Otero v. Mesa County Valley School
Dist. No. 51, 470 F.Supp. 326 (D. Colo. 1979), aff'd 628 F.2d 1271
(10th Cir. 1980).  If so, it would not limit respondent's right to
proceed in this case even if it were incorporated in the
Rehabilitation Act by Section 505(a)(2).  While we have serious doubt
that such an interpretation is consistent with the purpose of Section
604, the Court need not reach that issue in this case, because it is
sufficiently clear that Congress did not intend to make Section 604
applicable to the Rehabilitation Act.

   /28/ Implementation of Section 504, Rehabilitation Act of 1973:
Hearings Before the Subcomm. on Select Education of the House Comm. on
Education and Labor, 95th Cong., 1st Sess. 73 (1977);  see id. at 76.

   /29/ When Congress disagreed with other provisions in the HEW
regulations, it took steps to change them.  See Comment, supra, 54
N.Y.U. L. Rev. at 1192 n.96.

   /30/ The amendments also added a new Title VI to the Rehabilitation
Act to improve employment opportunities for handicapped individuals
with poor employment prospects (29 U.S.C. (Supp. V) 795-795i), and a
new Title VII to provide services and instruction to those lacking the
potential for employment (29 U.S.C. (Supp. V) 796-796i).

   /31/ Those who considered the matter of employment coverage while
the 1978 amendments were being debated uniformly assumed that it was
not limited by the purpose of the federal assistance.  See, e.g., 124
Cong. Rec. 30346 (1978) (remarks of Sen. Cranston);  124 Cong. Rec.
30324 (1978) (remarks of Sen. Hathaway);  id. at 30323 (remarks of
Sen. Williams), 30577-30578 (remarks of Sen. Cranston);  Oversight
Hearings on the Rehabilitation Act of 1973:  Hearings Before the
Subcomm. on Select Education of the House Comm. on Education and
Labor, 95th Cong., 2d Sess. 501-503 (1978) (statement of Rep. Hyde).
See also S. Rep. No. 96-316, supra, at 13;  44 Fed. Reg. 17174 (1979);
 45 Fed. Reg. 37628 (1980).

   /32/ As we noted above, note 8, respondent's claim for back pay
survives LeStrange's death.

   The petition in this case did not present any question about the
kinds of monetary relief available in private actions under Section
504.  Pet. i.  The Court thus need not decide the difficult question
whether punitive damages, as well as back pay, may be awarded if
respondent ultimately prevails.  The availability of the latter kind
of relief alone would resolve the question of mootness.

   /33/ Slip op. 19-20.  Justice Rehnquist joined this portion of
Justice White's opinion.  Justice Powell, joined by the Chief Justice,
concurred in the judgment of affirmance because they believed that no
private right of action was available under Title VI (slip op. 203).
Alternatively, they, joined by Justice Rehnquist, would have held that
no Title VI relief was available absent a showing of intentional
discrimination (id. at 4-5).  Justice O'Connor concurred in the
judgment because the petitioners had failed to prove intentional
discrimination (slip op. 1-4).

   /34/ Title V was repealed by the Northeast Rail Service Act of 1981
(Pub. L. No. 97-35, Title XI, Section 1144(a)(1), 95 Stat. 669), and
was replaced by a new Title VII which affords protection to the same
class of employees.  45 U.S.C. (Supp. V) 797 et seq.

   /35/ The district court said that Section 504 also forbade
employment discrimination of the harm done to one like petitioner
caused discrimination against the primary beneficiaries of the federal
aid (Pet. App. A33).  That, however, did not happen here (id. at
A45-A46).

   The court's discussion of the employment coverage issue focused
almost exclusively on the purpose of Title V.  The only reference to
the stock and debentures purchased by the USRA was an oblique
statement that "the Act in general and Title VI in particular did not
have a primary goal of providing employment" (id. at A37).

   If the Court determines that Section 504 prohibits employment
discrimination only where the federal financial assistance is intended
primarily to provide employment, the case should be remanded for the
court of appeals to review the district court's determination that the
federal assistance received under Title V and through the USRA's
purchase of stock and debentures was not primarily intended to provide
employment.  The court of appeals should also determine whether
"providing employment" is limited, as the district court concluded
(Pet. App. A35-A45), to providing new jobs, or whether it could
include providing for the maintenance of existing jobs.

   /36/ It is true, as petitioner notes (Br. 26) that Judge Adams's
concurrence relied in part on an earlier Third Circuit decision
espousing an expansive view of the "program or activity" requirement
of Title IX.  Pet. App. A21-A22, citing Grove City College v. Bell,
687 F.2d 684 (3d Cir. 1982), cert. granted, No. 82-792 (Feb. 22,
1983).  But neither Judge Bloch nor Judge Weis mentioned Grove City or
discussed the "program or activity" question.