No. 95-830

In the Supreme Court of the United States

OCTOBER TERM, 1995

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
PETITIONERS

v.

JOHN DOE, M.D. BY CURTIS LAVERY
EXECUTOR OF HIS ESTATE

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

BETH S. BRINKMANN
Assistant to the Solicitor
General

BARBARA C. BIDDLE
DEBORAH RUTH KANT
Attorneys

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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QUESTION PRESENTED

 Whether Congress waived the federal government's
  sovereign immunity against money damages for
  violations of Section 504 of the Rehabilitation Act of
  1973, 29 U.S.C. 791 et seq., which prohibits discrim-
  ination on the basis of disability in "any program or
  activity conducted by any Executive agency." 29
  U.S.C. 794(a) (Supp. V 1993).

(I)

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II

   PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, the
Director of the Federal Bureau of Investigation and
Richard Held, Special Agent in Charge of the San
Francisco Office of the Federal Bureau of Investiga-
tion, were appellees in the proceeding below.

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Opinions below  . . . . 1
Jurisdiction  . . . . 2
Statutory provisions involved  . . . .2 
Statement  . . . . 2
Reasons for granting the petition  . . . . 6
Conclusion . . . .  12
Appendix A  . . . . 1a
Appendix B  . . . . 10a
Appendix C  . . . . 22a
Appendix D  . . . . 66a
 
     TABLE OF AUTHORITIES

Cases:

Atascadero State Hosp. v. Scanlon, 473 U.S. 234
(1985)  . . . . 8
Block v. North Dakota, 461 U.S. 273(1983)  . . . .8 
Dorsey v. United  States Dep't of Labor, 41 F.3d 1551
(D.C. Cir. 1994)  . . . .7, 8
J.L. v. Social Security Admin., 971 F.2d 260
(9th Cir. 1992)  . . . .11 
Johnston v. Home, 875 F.2d 1415(9th Cir. 1989)  . . . .10 
Lehman v. Nakshian, 453 U.S. 156 (1981)  . . . . 8
Library of Congress v. Shaw, 478 U.S. 310 (1986) . .8
Mantolete  v. Bolger, 767 F.2d 1416 (9th Cir.
1985)  . . . .5
United States v. Nordic Village, Inc., 503 U.S. 30
 (1992)  . . . .7, 8, 11 

  Constitution and statutes:

   U.S. Const.:
   Amend. V  . . . . 3, 4
   Amend XI  . . . . 10

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IV

Statutes Continued:             Page

Civil Rights Act of 1364, 42 U.S.C. 2000a et seq.:
  Title VI, 42 U.S.C. 2000d et seq. . . .7, 9, 10
  42 U.S.C. 2000d  . . . .  4, 9
   42 U.S.C. 2000d-2  . . . .7
   42 U.S.C. 2000d-7  . . . .  10
  Title VII, 42 U.S.C. 2000e-16 (1988 & Supp. V
   1993)  . . . .  10
Civil Rights Act of .1991, Pub. L. No. 102-166, 102,
105 Stat. 1072 " . . . . 10
  42 U.S.C. 1981a(a) SUPP. V 1993) . . . .11
  42 U.S.C. 1981a(a)(2) (SUPP. V 1993 . . . .11
Education Amendments of 1972, Tit. IX, 20 U.S.C.
1681  . . . .  4
Rehabilitation Act of 1973,29 U.S.C. 791 et seq . . . . 
501,.29 U.S.C. 791 (1988 & Supp. v 1993) . . . . 10, 11
 504,29 U.S.C. 794 (1988& Supp. V 1993) . . . .passim
504(a), 29 U.S.C. 794(a) (Supp. V 1993) . . . . 2, 3, 4, 8, 9
 505,29 U.S.C. 794a . . . .  7
 505(a)(l), 29 U.S.C. 794a(a)(1)  . . . .  10
 505(a)(2), 29 U.S.C. 794a(a)(2) . . . . 2, 9, 10
 505(b), 29 U.S.C. 794(b) . . . . 5

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In the Supreme Court of the United States

      OCTOBER TERM, 1995

         No.

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
       PETITIONERS

v.

JOHN DOE, M. D., BY CURTIS LAVERY,
   EXECUTOR OF HIS ESTATE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Attorney
General of the United States and the other federal
parties, respectfully petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.

       OPINIONS BELOW

The June 30, 1995, opinion of the court of appeals
(App., infra, la-9a) is not reported, but the judgment
is noted at 62 F.3d 1424 (Table). The August 1, 1991,
opinion of the court of appeals (App., infra, 22a-65a)
is reported at 941 F.2d 780. The December 28, 1992,
opinion of the district court (App., infra, 10a-21a) is
reported at 814 F. Supp. 844. The August 25, 1989,
opinion of the district court (App., infra, 66a-77a) is
reported at 723 F. Supp. 452.

(1)

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2
        JURISDICTION

The judgment of the court of appeals was entered
on June 30, 1995. On September 19, 1995, Justice
O'Connor extended the time within which to file a
petition for a writ of certiorari to and including
November 27, 1995. The jurisdiction of this Court is
invoked under 28  U.S.C. 1254(1).

   STATUTORY PROVISIONS INVOLVED

Section 504(a) of the Rehabilitation Act of 1973, 29
U.S.C. 794(a) (Supp. V 1993), provides, in relevant
part:

  No otherwise qualified individual with a dis-
ability in the "United States * * * shall, solely by
reason of her or his disability, 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 or
under any program or activity conducted by any
Executive agency or by the United States Postal
Service.

Section 505(a)(2) of the Act, 29 U.S.C. 794a(a)(2),
provides:

  The remedies, procedures, and rights set forth
in Title VI of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.] 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 794 of
this title [Section 504 of the Act].

       STATEMENT

1. This case arose from the FBI's decision in 1988
to suspend the requirement that its agents and job

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3

applicants go to a health care facility at which
respondent was employed for compulsory annual
physicals. The suspension decision was made after
the FBI obtained information that respondent, who
performed the physicals, might have AIDS. App.,
infra, 13a-14a. The FBI stopped sending agents and
applicants to the facility because it was dissatisfied
with the facility's response to its inquiries regard-
ing respondent's medical condition. Id. at 13a-15a.
Eventually, the FBI decided to allow its agents to
choose any of three health care facilities, including
respondent's facility, for their annual physicals.
Thereafter, very few agents and applicants went to
respondent for compulsory physicals. Respondent's
salary, which was based in part on the number of
physicals he performed, decreased sharply. Id. at 25a.
Respondent brought an action for injunctive relief
and money damages against the Attorney General of
the United States and the Director of the Federal
Bureau of Investigation under Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794 (1988 &
Supp. V 1993), and the Fifth Amendment. Respondent
included a Bivens claim for damages against the
Special Agent in Charge of the San Francisco FBI
Office, Richard Held.  Section 504(a) provides, in
relevant part, that

[n]o otherwise qualified individual with a dis-
ability in the United States * * * shall, solely
by reason of her or his disability, 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 or under any program or activity

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4

conducted by any Executive agency or by the
United States Postal Service.

29 U.S.C. 794(a) (Supp. V 1993). 
The district court granted FBI agent Held quali-
fied immunity. App., infra, 53a-54a. The court also
held that the FBI's actions did not violate the Fifth
Amendment because its actions were reasonable in
light of the FBI's governmental responsibilities. Id.
at 75a-77a. With regard to the Section 504 claim, the
district court held that there is no implied cause of
action against the federal government for violations
of Section 504. Id. at 68a-75a.
2. The court of appeals affirmed in part and
reversed in part. App., infra, 22a-65a. The court
ruled that respondent's claims for injunctive relief
were moot due to respondent's resignation from the
hospital staff. Id. at 26a-27a. The court affirmed the
district court's ruling that the individual special
agent was entitled to qualified immunity. Id. at 59a.
With regard to' the Section 504 claim against the
government, the court held that Congress unequiv-
ocally waived the federal government's sovereign
immunity against money damages for violations of
Section 504. Id. at 48a, 53a. The court found a waiver
in Congress's amendment of the Rehabilitation Act in
1978 to include executive agencies in the coverage of
Section 504. Id. at 41a-43a. The court of appeals re-
lied on its assumption that Congress. knew, at the
time of the amendments, that an implied right of ac-
tion existed against federal aid recipients under Sec-
tion 504 and other analogous statutes. Id. at 32a-36a. 1.
           
___________________(footnotes)

1 See 42 U.S.C. 2000d (Title VI of  the Civil Rights Act of
1964); 20 U.S.C. 1681 (Title IX of the Education Amendments
of 1972).

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5

The court held that Congress intended to ensure an
enforcement mechanism for victims of disability
discrimination that would be uniform against private
and federal defendants alike. The legislative history
reflected the same intent, in the court's view, even
though the congressional committee reports made no
reference to why Congress inserted the "Executive
agency" clause into Section 504 and the debates "do
not state outright that section 504 subjects federal
agencies to private actions for damages." Id. at 48a.
The court also viewed the attorneys' fees provision of
the Rehabilitation Act, 29 U.S.C. 794a(b), as support-
ing Congress's intent to place government and
private defendants on an equal footing. App., infra,
46a-48a.
3. On remand, the district court proceeded to the
merits of respondent's damages claim and addressed
the question whether the FBI's actions constituted
discrimination on the basis of disability in violation of
Section 504. App., infra, 11a. The court applied Ninth
Circuit precedent that places the burden on a de-
fendant to make an adequate inquiry into whether a
person is otherwise qualified to perform a job before it
may take an adverse action based on a determina-
tion that the person is not otherwise qualified. See
Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir.
1985).  The court indicated that there is not a
significant risk of infection by a physician who has
AIDS if the physician follows infection control
procedures. App., infra, 16a. The district court ruled
in favor of the government, however, holding that the
FBI did not violate Section 504 because the FBI had
a right to inquire into respondent's qualifications
and the hospital's answers to its questions regarding

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6

health risks posed by respondent were inadequate. Id.
at 20a-21a.
4. The court of appeals reversed. App., infra, 1a-
9a. 2. The court held that the district court's findings
that the FBI made an adequate inquiry into respon-
dent's qualifications, and that the hospital gave
evasive answers, were clearly erroneous. Id. at 7a.
Chief Judge Wallace dissented because he disagreed
that the findings were clearly erroneous and he would
have adhered to the court's earlier opinion. Id. at 9a.

  REASONS FOR GRANTING THE PETITION

1. This case presents the question whether Con-
gress has waived the federal government's sovereign
immunity against money damages for violations of
Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794 (1988 & Supp. V 1993). A petition for a
writ of certiorari was filed on September 5, 1995, in
Lane v. Pena, No. 95-365, seeking review of a-decision
of the D.C. Circuit raising the same issue. In Lane,
the court of appeals held that Congress had not
waived sovereign immunity against money damages
for violations of Section 504. We have filed a brief in
Lane, stating that we believe that review by the
Court is warranted in that case in order to resolve
the conflict among the circuits. We request that the
Court hold the petition for a writ of certiorari in the
instant case and dispose of it as appropriate in light of
the Court's disposition of the petition in Lane.

___________________(footnotes)

2 The court of appeals initially issued an opinion  affirming
the district court, 34 F.3d 781, which was withdrawn and
superseded by another opinion affirming the district court, 44
F.3d 715. The court of appeals then withdrew that opinion and
issued its final opinion reversing the district court.

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7

  2. In Lane, the D.C. Circuit summarily affirmed
  the district court's ruling that Congress had not
  waived the federal government's sovereign immunity
  against money damages for violations of Section 504.
  The district court had based its decision on the D.C.
  Circuit's earlier ruling to that effect in Dorsey v.
  United States Dep't of Labor, 41 F.3d 1551 (1994). In
  Dorsey, the court applied this Court's sovereign
  immunity jurisprudence, see United States v. Nordic
  Village, Inc., 503 US. 30 (1992), requiring that a
  waiver of sovereign immunity for money damages
  must be explicit and unambiguous. See 41 F.3d at
  1554-1555. The court found no such explicit language
  in Section 504 or Section 505 of the Rehabilitation
  Act. Ibid. The court noted that Section 505 explicitly
  incorporates the remedies of Title VI of the Civil
  Rights Act of 1964, 42 U.S.C. 2000d et seq., for
  violations of Section 504, 41 F.3d at 1554, but it found
  no explicit waiver of sovereign immunity against
  money damages in Title VI, id. at 1555. The court
  emphasized that the fact "[t]hat damages may be
  recovered against private parties does not * * * lead
  to the conclusion that damages may also be recovered
  against the government. When it comes to monetary
  relief, sovereign immunity puts the federal govern-
  ment on a different footing [from] private parties." Id.
  at 1555. In examining the legislative history of Sec-
  tion 504, the court found it "at the very best * * *
  ambiguous." Ibid. The court expressly recognized
  that its decision respecting liability for damages for
  violations of Section 504 was in conflict with the
  Ninth Circuit's decision in the instant case. Id. at
  1555.3                 
                
___________________(footnotes)            
       
  3  In Dorsey, the D.C. Circuit noted that neither  Section 504

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8

3. AS we submit in our brief in Lane, the Ninth
Circuit's ruling in the instant case is inconsistent
with basic principles governing the federal govern-
ment's sovereign immunity against money damages.
It is well settled that waivers of sovereign immunity
must be unequivocally expressed and not implied.
Library of Congress V. Shaw, 478 U.S. 310 (1986);
Lehman v. Nakshian, 453 U.S. 156 (1981); Block v.
North Dakota, 461 U.S. 273, 287 (1983); see also
Atascadero State Hosp. v. Scanlon 473 U.S. 234,242-
243 (1985). This Court recently reaffirmed that
waivers of sovereign immunity must not be enlarged
beyond what the statutory language requires, and
that, for money damages to be available, waiver must
unambiguously extend to monetary claims as well.
Nordic Village, Inc., 503 U.S. at 33-34. Nor can the
legislative history of a statute supply an unequivocal
waiver that does not exist in the statute itself-''the
`unequivocal expression' of elimination of sovereign
immunity that we insist upon is an expression in
statutory text." Id. at 37.
The D.C. Circuit correctly ruled in Dorsey that
Congress did not explicitly waive the federal govern-
ment's sovereign immunity against money damages
for violations of Section 504 of the Rehabilitation Act.
Section 504(a) of the Act bars federal aid recipients

___________________(footnotes)
          
nor Title VI expressly provides for a right of' action for
compensatory damages. 41 F.3d at 1554. The court of appeals
in this case held that an implied cause of action exists for
damages for violations of Section 504. App., infra, 48a, 53a.
The Dorsey court did not find a need to resolve that issue be-
cause it concluded that "[e]ven if there is an implied right of
action for damages  under Title VI, and thus under  504, it
cannot exist as against the federal government." 41 F.3d at
1554-1555.

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9

and federal executive agencies from discriminating on
the basis of disability in programs and activities.
Section 504(a) provides, in relevant part, that

[n]o otherwise qualified individual with a dis-
ability in the United States * * * shall, solely
by reason of her or his disability, 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 or under any program or activity
conducted by any Executive agency or by the
United States Postal Service.

29 U.S.C. 794(a) (Supp. V 1993).
Section 505(a)(2) of the Act specifies the remedies
available for violations of Section 504. It provides that

  [t]he remedies, procedures, and rights set forth
in Title VI of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.] 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 794 of
this title [Section 504 of the Act],

29 U.S.C. 794a(a)(2).
Title VI of the Civil Rights Act of 1964 prohibits
programs receiving federal financial assistance from
discriminating on the basis of race, color or national
origin. 42 U.S.C. 2000d. 4. Title VI contains no pro-
         
___________________(footnotes)

4 Section 2000d provides:

No person in the United States shall, on the ground of
race, color, or national origin, be excluded from partici-
pation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance.

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10

vision specifying remedies against recipients of
federal financial assistance who engage in discrim-
ination other than in Section 2000d-7, which was
enacted in 1986 to waive the States' Eleventh
Amendment immunity. That Section provides that
remedies in suits against  States are available to the
same extent as available against any public or private
entities.  The remedial provisions of Title VI
generally deal with the authority and responsibilities
of federal agencies that extend financial assistance to
enforce Title VI.         
Neither the Rehabilitation Act nor Title VI thus
contains an explicit waiver of the federal govern-
ment's sovereign immunity against money damages
for violations of Section 504. In the remedies pro-
vision of Section 505(a)(2), Congress did not refer to
persons aggrieved by acts of executive agencies. The
absence of an express waiver for money damages for
violations of Section 504 by executive agencies is
especially obvious in light of the remedies provided
for violation of Section 501 of the Act, 29 U.S.C. 791
0988 & Supp. V 1993). Section 501 governs the
federal government's liability for employment dis-
crimination based on disability. See, e.g., Johnston v.
Horne, 875 F.2d 1415, 1418-1420 (9th Cir. 1989). With
respect to violations of  Section 501, Section 505(a)(1)
of the Act provides that any aggrieved employee or
applicant for employment is entitled to the remedies,
rights, and procedures provided by Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e-16 (1988 &
Supp. V 1993).  29 U.S.C. 794a(a)(1). Prior to 1991,
Title VII did not authorize any awards of compen-
satory damages. In 1991, however, Congress enacted
the Civil Rights Act of 1991, Pub. L. No. 102-166,
102, 105 Stat. 1072, which provides that compen-

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11

satory damages are available for unlawful intentional
discrimination with respect to employment practices
under Title VII and the Rehabilitation Act, 29 U.S.C.
794a(a)(1). 42 U.S.C. 1981a(a)(1) and (2) (Supp. V 1993).
In the 1991 Act, Congress thus for the first time
waived immunity for compensatory damages for in-
tentional discrimination in violation of Section 501.
No similar waiver has ever been enacted with respect
to Section 504.
The court of appeals' decision in this case came
before this Court's decision in Nordic Village, Inc.,
503 U.S. at 33-34, holding that the requirement of an
explicit statutory waiver applies to any aspect of the
waiver, including waiver for monetary damages. 5.
Application of that principle to Section 504 demon-
strates that the ruling by the Ninth Circuit below is
incorrect and that the D.C. Circuit's holdings in
Dorsey and Lane were correct. This Court's dispo-
sition of the petition in Lane should therefore resolve
the issues in this case.

___________________(footnotes)

5 In J.L. v. Social Security Admin., 971 F.2d 260 (1992),
decided after Nordic Village, the Ninth Circuit adhered  to its
ruling in Doe that Section 504 waived sovereign immunity for
money damages for violations of Section 504. Id. at 264, 269.

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        CONCLUSION

The petition for a writ of certiorari should be held
and disposed of as appropriate in light of the Court's
disposition of the petition in Lane v. Pena, No. 95-365.

Respectfully submitted.

         DREW S. DAYS, III
         Solicitor General

         FRANK W. HUNGER
           Assistant Attorney General

          PAUL BENDER
           Deputy Solicitor General

          BETH S. BRINKMANN
           Assistant to the Solicitor
           General

          BARBARA C. BIDDLE
          DEBORAH RUTH KANT 
           Attorneys

NOVEMBER 1995

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     APPENDIX A

  NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
  FOR THE NINTH CIRCUIT

       No. 93-15253

    D.C. No. CV-88-03820-CAL

JOHN DOE, M.D., BY CURTIS LAVERY, EXECUTOR OF
   HIS ESTATE, PLAINTIFF-APPELLANT

          v.

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
     DEFENDANTS-APPELLEES

Appeal from the United States District Court
for the Northern District, of California
Charles A. Legge, District Judge, Presiding

[Filed June 30, 1995]

Before: WALLACE, Chief Judge; O'SCANNLAIN,
Circuit Judge; and KELLEHER,* District  Judge.
             
___________________(footnotes)

* The Honorable Robert J. Kelleher, Senior United States
District Judge for the Central District of California, sitting by
designation.       (la)

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2a

MEMORANDUM**

I

Dr. Doe, who died in 1992, was a medical doctor and
director of a health facility which contracted to
perform physical examinations for agents of the
Federal Bureau of Investigation ("FBI"). In 1988, the
FBI was told by an unnamed source that Dr. Doe had
Kaposi's Sarcoma, a malignancy often associated with
Acquired Immune Deficiency Syndrome ("AIDS").
The FBI asked Dr.  Doe and the facility if  Dr. Doe had
AIDS. Dr. Doe and the facility would not confirm
that he had AIDS, but assured the FBI that they
followed standard infection control procedures;
therefore, Dr. Doe's routine exams posed no risk to
patients. Within a week, however, the FBI stopped
sending agents to Dr. Doe.
This case comes  to us for the second time on appeal.
On remand, the district court, after a nonjury  trial,
rejected Dr. Doe's claim for damages under sect ion
504 of the Rehabilitation Act of 1973,29 U.S.C. 794
("the Act"). The executor of Dr. Doe's estate appeals.

         II

The interpretation of the Act is a question of law
that we review de novo. However, we review the
district court's findings  of  fact for clear error.
At the time this  action was filed, section 504 of the
act, 29 U.S.C.  794(a), provided:
  No otherwise qualified individual with handi-
caps . . . shall, solely by reason of her or his
                      
___________________(footnotes)

* * This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except
as provided by Ninth Circuit Rule 36-3.

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        3a

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 or under
any program or activity conducted by any
Executive agency.

The goal of section 504 is to protect disabled in-
dividuals "from deprivation based on prejudice, stereo-
types, or unfounded fear, while giving appropriate
weight to such legitimate concerns . . . as avoiding
exposing others to significant health and safety
risks." School Board of Nassau County v. Arline,
480 U.S. 273, 287 (1987).
In order to recover, Dr. Doe must show that he was
an otherwise qualified handicapped individual for
purposes of the Act, and that he was terminated solely
because of his handicap. The first time that his ease
was before us, we determined that Dr. Doe was a
"handicapped individual" within the meaning of the
Act. Doe v. Attorney General, 941 F.2d 780,797 (9th
Cir. 1991). We now must determine whether he was
"otherwise qualified" to perform routine physicals,
and if so, whether he was terminated solely by reason
of his handicap.

         A

The Supreme Court has held that a person with an
infectious disease is otherwise qualified for a position
if he does not pose "a significant risk of communi-
cating [the] disease to others in the workplace."
Arline, 480 U.S. at 287 n.16. Here, the district court
found that "if appropriate medical procedures are
followed, . . . the risk of transmission of infection
from a doctor with AIDs to a patient in the course of a
routine physical examination is remote." This con-
clusion was supported by unanimous expert testi-
mony at trial.

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        4a

The district court nevertheless found in favor of
the FBI. The district court found that Dr. Doe and
the hospital gave "conclusory statements" in re-
sponse to the questions posed by the FBI, and that
this "minimal information" prevented the FBI from
determining whether Dr. Doe was "otherwise quali-
fied" for the position. However, we must conclude
that the district court's finding is not supported by
the record.
Before taking adverse action against an employee,
an employer has a duty under the Act to gather
sufficient information from the employee and from
qualified experts `to determine whether the employee
is otherwise qualified for the position. Mantolete v.
Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985). Because
Dr. Doe had a contagious disease, the FBI's concern
under the Act should have been to determine whether
Dr. Doe posed a substantial risk of communicating
the disease. It would have been perfectly appropriate,
therefore, for the FBI to inquire in detail about the
infection control, procedures used to ensure `chat FBI
employees were not placed at risk.
The district court record reveals, however, that the
FBI expressed little concern about the hospital's
infection control procedures. The record shows that
Dr. Doe and the hospital were entirely forthcoming
about these procedures, but that their explanations
fell on deaf ears, When the hospital explained why
its infection control procedures prevented risk of
transmission to any agents, the FBI showed no
interest in pursuing the inquiry further, by asking,
for instance, about the nature, character, use, or
effectiveness of the procedures.  Rather, the FBI

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5a

   focused their attention on only one question: whether
  or not Dr. Doe had AIDS. 1        

    __________________(footnotes)

1  The direct testimony of FBI Agent Clow about a
meeting between the FBI and hospital staff members is
revealing :

A: At  that point a discussion ensued in which basically a
number of people, including Dr. Doe, assured  us that if
medical guidelines were followed, there would be no risk  to
our employees that this would be the case.

Q: What discussion do you recall about the medical
guidelines?

A: It was in the context of the nature of the
examinations themselves, that went to rectal examinations
for males, pelvic examinations for females.

  And that if the guidelines, and I don't remember if
any particular agency's guidelines were specified, but if
the medical guidelines were followed, they were being
assured basically that there would be no risk that would
accrue to our employees.

  And further that possibly through AIDS education
any fears that our employees might have in that regard
could be allayed, and the suggestion was made that we
avail our employees of that type of education.

Q: Do you recall any other topics being discussed at the
September 7 meeting?

A: It was at some point in the discussion that . . . again,
everything is being discussed hypothetically, if this being
the case, we were told there would be no risk to our
employees. . . . If it not be the case that a health care
worker with the [hospital] has this disease, then all of this
discussion is really moot.

And I asked point blank is there a member of the
[hospital] who has this disease.

Q: Did anyone respond?

A: Mr. Monardo responded. He was the only one who
did, and he said, I don't know.

Q: Did anyone else respond?

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6a

Indeed, the district court's findings on the nature of
the FBI's inquiries accord with this view.  The     
district court found that at and August 23, 1988 
meeting between Dr. Doe and Agent Young, Dr. Doe
did not confirm or deny whether anyone at the
hospital either had a communicable disease or
Kaposi's Sarcoma, "but did say that there was no
medical risk." The district court further found that
on or about the same day, the FBI suspended Dr.
Doe's employment "because of [its] concerns about a
possible communicable disease and lack of information
from plaintiff, the facility and the hospital."
The FBI concedes that they were, informed that
there was no risk to FBI employees because infection
control procedures were followed; however, they 

___________________(footnotes)
         
A: No one else said anything to that.

  Q What happened at that point?

  A: Well, I felt a loss of confidence in the people who
were present at the meeting, not being responsive to my  
concern and to the . . . one of the purposes of our visit,
announced purpose of the visit, and further that they were
not being candid with us.

(emphasis added).

The testimony of the hospital's clinical director, Nora
Crans, also reveals that the FBI learned that Dr. Doe was using
standard infection control procedures. Crans referred the FBI 
special agent to Dr. Doe directly. They later spoke about that
conservation.

  Q: Can you tell me what you recall of that
conversation?

A: Yes. I asked him how the meeting went with Dr.
Doe. He stated that it was somewhat puzzling. That he
never came out  and said whether he did or whether he
didn't have KS, but said that he was following the CDC
guidelines and that there was no risk of anyone on our staff
passing on an infectious disease through a physical exam.

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7a

assert that "[n]o other information was provided by
Dr. Doe or the hospital administrators." The FBI,
however, misconceives its role under the Act. As
employer, the FBI had the duty to gather substantial
information based on objective evidence of risk and
not on misinformed stereotypes. Mantolete, 767 F.2d
at 1423. If the FBI had been legitimately concerned
about the risk of transmission, it would have inquired
as to the character and effectiveness of the infection
control procedures used, as it was required to do by
the Rehabilitation Act. It made no attempt to do so. 2.
In sum, the district court record is devoid of any
evidence indicating that the hospital or Dr. Doe were
not candid with respect to, questions posed about
infection control. Rather, the record reveals that
they were evasive only with respect to answering
whether or not Dr. Doe had AIDS. Because this
latter question is irrelevant to the determination of
whether Dr. Doe was "otherwise qualified" under the'
Act, and because the FBI made no attempt to satisfy
its duty to gather evidence on the issue, we conclude
that Dr. Doe was otherwise qualified.

         B

We now consider whether Dr. Doe was termi-
nated "solely  by reason of. . . his handicap." 29 U.S.C.
794(a). The district court found that the FBI's

2 Indeed, had the FBI made the appropriate inquiries, it
likely would have learned early on that the hospital had an
inadequate monitoring and supervision program for its
infection control procedures. The FBI then may have been
able to part ways with Dr. Doe without effecting a violation of
the Rehabilitation Act. This information was not adduced until
after Dr. Doe filed suit, however, and therefore cannot he
a retroactive basis for the FBI's termination of Dr. Doe.
McKennon v. Nashville Banner Publishing, 115 S. Ct. 879, 884
(1995). .

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8a

decision to use other health care  providers was not
based solely on plaintiff's handicap. It was at
least in part based on plaintiff's refusal to provide
information. His conclusory statements did not
inform defendants as to whether plaintiff had a
handicapping condition, and they prohibited de-
fendant from determining whether plaintiff was
"otherwise qualified or what reasonable accom-
modations could be made,

Dr. Doe asks us to hold that the district court
improperly defined the phrase "solely by reason of his
handicap" when it found, in essence, that a section 504
violation does not occur if a defendant has both proper
and improper motives for terminating a handicapped
employee. However, we have no need to reach that
question here because the FBI has, not asserted any
legitimate reasons for terminating Dr. Doe.
The district court found that the FBI terminated
Dr. Doe, not merely because of his handicap, but also
because he refused to provide the FBI with infor-
mation. As stated above, the "missing" information
pertained not to infection control procedures, but to
whether or not Dr. Doe had AIDS. As we have noted,
this latter inquiry is irrelevant for determining
whether Dr. Doe was "otherwise qualified" under the
Act. Further, several witnesses testified that the
purpose for asking Dr. Doe if he had AIDs was in
order to replace him if he did. Hence, we cannot help
but conclude that the FBI terminated Dr. Doe "solely
by reason of his handicap," even as that phrase is
most strictly defined.

         III

We reverse the judgment of the district court and
remand for a determination of damages.
REVERSED and REMANDED.

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9a

WALLACE, Chief Judge, dissenting:

I dissent. The majority, at this late date, changes
its position and concludes that the district court
should be reversed because its findings are clearly
erroneous. Regardless of how any of us would decide
the case had we been the district judge, I cannot say
these findings are clearly erroneous.
The record shows that the FBI wanted to know if
Dr. Doe had AIDS. That was never disputed. But
that does not mean that the FBI fired Dr. Doe
because he had the disease. Rather, the evidence is
sufficient for a finding that the firing of Dr. Doe was
motivated by the FBI's lost confidence in the hospital.
At the very least, that finding is not clearly erron-
eous.
 For the reasons stated in the withdrawn opinion of
Doe v. Attorney General, 44 F.3d 715 (9th Cir. 1995), I
would affirm the judgment of the district court.

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10a

     APPENDIX B
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

   No. C-88-3820-CAL    

JOHN DOE, -M.D., BY CURTIS LAVERY,
EXECUTOR-OF HIS ESTATE, PLAINTIFF

       v.

THE ATTORNEY GENERAL OF THE UNITED
  STATES, ET AL., DEFENDANTS

[Filed Dec. 28, 1992]

FINDINGS OF FACT AND CONCLUSIONS
      OF LAW
      
LEGGE, District Judge.

      Findings of Fact

1. This case was tried to the court, sitting without
a jury, between May 9 and May 17, 1989. The com-
plaint asserts two claims. The first is under 29
U.S.C. 794, the Rehabilitation Act of 1973, 504 (the

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11a

"Act''). 1. The second claim is that defendants used
private information about plaintiff in violation of his
privacy rights under the Due Process Clause of the
Fifth Amendment to the United States Constitution.

2. This court issued findings of fact and conclu-
sions of law on August 25, 1989. It determined that
plaintiff did not have a private right of action against
defendants under Section 504. This court made no
other findings or conclusions regarding the Section
504 cause of action. With respect to plaintiff''s claim
under the Fifth Amendment, the court found that
defendants did not violate his right to privacy.

3. This court's decisions were vacated in part,
reversed in part, affirmed in part, and remanded by
the Ninth Circuit Court of Appeals; Doe v. Attorney
General, 941 F.2d 780 (9th Cir.1991). The Ninth Cir-
cuit held that plaintiff's claim for injunctive relief,
the only claim plaintiff made under his Fifth
Amendment cause of action, had become moot. It
affirmed this court's judgment in favor of defendant
Held. The court also held that Congress had waived
sovereign immunity and had provided a private right
of action for damages for discrimination claims
against the United States under Section 504. It
therefore reversed this court's contrary conclusion
and remanded for this court to make findings on the
merits.
The Ninth Circuit held that plaintiff had a
"handicap" (AIDS) within the meaning of the Act.
But it made no determination as to whether (1)
plaintiff was "otherwise qualified" to perform medical

___________________(footnotes)

1 This section is usually referred to by its public law section
number, 504 of the Act, and that public law reference will be
used here.

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12a

against plaintiff solely because he had AIDS, or (3)
defendants acted because he refused to disclose in-
formation necessary to determine whether he was
"otherwise qualified."      .

4. As a result of the Ninth Circuit's decisions, the
only cause of action remaining before this court is
plaintiff's claim for damages under Section 504
against the United States.

5. The parties stipulated to submit the issues to
this court for decision on the record of the 1989 trial,
together with additional filings. This court has re-
viewed the trial record, the submissions of the
parties, the arguments of counsel and the applicable
authorities. The court now makes these findings of
fact and conclusions of law. The facts are found by a
measure of a preponderance of the evidence.

6. Plaintiff died after the 1989 trial, and the ex-
ecutor of his estate has been submitted as the party
plaintiff. However, Dr. Doe will be called "plaintiff,"
herein. Plaintiff was a medical doctor. He was en-
gaged in the private practice of medicine. as a doctor
employed by, and the director of, a health care facility.
The health care facility was controlled by a hospital?
Plaintiff received a salary from the facility, and his
earnings were in part based upon the earnings of the
facility from the patients whom plaintiff treated.

7. The Federal Bureau of Investigation requires
that physical examinations, which include anal
vaginal and oral cavity examinations, be performed on
all special agents and agent applicants, under the
authority of 5 .C.F.R. 339.301. From approximately
December 1984 to August 1988, defendants sent all
       
___________________(footnotes)

2  For reasons  of privacy, plaintiff  is called Dr. Doe," the
health care facility  is called "the facility," and the hospital is
called "the hospital."

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13a

persons who were applicants for employment `by the
F.B.I. to the facility for pre-employment physical
examinations, and they sent all employees of the
Bureau to the facility for annual and promotion
physical examinations. Virtually all of those physical
examinations were conducted by plaintiff. Prior to
August 1988, no one connected with defendants was
dissatisfied with the services performed by plaintiff.

8. Plaintiff contracted Acquired Immune Defi-
ciency Syndrome. On or about August 15, 1988, an
unknown person advised defendants that plaintiff had
Kaposi's Sarcoma, a contagious AIDS-related illness.

9. FBI  Special  Agent  William Young met with the
Director of the facility, Norma Crans, on August 16,
1988. He told her that unsubstantiated information
had come to his attention that plaintiff had Kaposi's
Sarcoma. He told her that the FBI was concerned
about the health risk, if any, to its agents and
applicants. He also informed her that the FBI was
concerned about the agents not having this infor-
mation when they were getting their physical
examinations.  Agent Young said that this was a
health . related issue because it related to an
examining physician having an alleged communicable
disease examining the FBI agents and applicants.
Ms. Crans told Agent Young that it would be
essential that he meet with plaintiff and that she was
not in a position to resolve the matter.

10. Agent Young met with plaintiff on August 23,
1988. Agent Young stated that unsubstantiated infor-
mation had come to the attention of the FBI that a
member of the staff of the facility had a communicable
disease. Plaintiff asked what the disease was. Agent
Young told plaintiff that it was Kaposi's Sarcoma.
Plaintiff stated that he believed this information
constituted a breach of medical ethics. Agent Young

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14a

responded that the information had come to the
attention of the F.B.I., and they were concerned about
the health risk to their agents and applicants.
Plaintiff did not confirm or deny the information that
someone on the staff had a communicable disease;
however, he said that there was no medical risk.

11.  Agent Young reported on both of his meetings
to the Special Agent in Charge of the San Francisco
F.B.I. office, Richard Held. They were concerned
that their questions about a physician at the facility
doing physical examinations while having a com-
municable disease were not being answered. Mr. Held
was concerned that the physician who was performing
physical examinations may have a communicable
disease, and that the people compelled to see this
physician by the FBI were not aware of the medical
risks. Mr. Held asked Agents George Clew and Don
Whaley to meet with plaintiff and the hospital admin-
istrators and raise the questions whether if someone
at the facility had a communicable disease the FBI
would be told, and what kind of options would be given
to employees and applicants.

12. Mr. Held told the FBI nurse that until the
issues could be resolved, examinations would be
suspended. On or about August 23, 1988, defendants
ceased sending persons to the facility for physical
examinations, because of defendants' concerns about a
possible communicable disease and lack of information
from plaintiff, the facility and the hospital.

13. There were subsequent telephone communi-
cations between defendants and the facility and the
hospital. On September 7, 1988 Agents Clew and
Whaley attended a meeting with the administrators of
the hospital and plaintiff. Also present were counsel
for the hospital and counsel for plaintiff. One of the
agents told those present that information had come

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15a

to the attention of the FBI that a member of the staff
of the facility may have AIDS or an AIDS-related
disease; and if he asked what the hospital's intentions
were if the information was accurate.  The FBI
agents also expressed their concern about the FBI's
duty to its employees concerning the risk of possible
transmission of the disease. The agents also ex-
pressed their concern as to whether it was the FBI's
duty to inform its employees of this information, and
its responsibility to other federal agencies who were
also using the facility.

Plaintiff and others stated that if medical guide-
lines were followed, there was no risk to FBI
employees. It was also suggested that any fears that
FBI employees might have could be alleviated
through AIDS education; it was suggested that the
FBI provide their employees with that type of
education.  No other information was provided by
plaintiff or the hospital administrators to the FBI
agents about whether plaintiff had AIDS or about the
risks and the preventions.

Agent Clow again asked whether a health care
worker with the facility had an AIDS-related disease.
One of the administrators of the hospital responded
that he did not know. NO one else responded.

14. Defendants lost confidence in plaintiff, the
facility and the hospital because they were not re-
sponsive to the FBI's concerns and were not being
candid.

15. The FBI sought advice on the issues of medi-
cal risk, and whether it had any legal obligations to
its agents, from its general counsel in Washington.

16. The FBI's questions about whether plaintiff
had Kaposi's Sarcoma remained unanswered until
plaintiff filed this suit. Dr. Doe filed this suit on

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16a

September 10, 1988. In an application to file a "John
Doe" complaint, plaintiff alleged that he had AIDS.

17. After this court granted a preliminary in-
junction, defendants entered into agreements with
three health care providers, including the facility, for
fiscal year 1989. Defendants had lost confidence in
the facility and plaintiff, and lacked information
about plaintiff's condition and the risks. Defendants
also recognized the FBI's legal obligations to its
employees. The three purchase agreements gave FBI
agents and applicants the opportunity to choose a
facility  for their physical examinations.

18. Contemporary medical judgment is that if
appropriate medical procedures are followed, as
plaintiff followed in performing physical examina-
tions, the risk of transmission of infection from a
doctor with AIDS to a patient in the course of a
routine physical examination is remote. However, a
doctor who has open cuts or weeping lesions should
refrain from patient care, because the lesions may
come in contact with a lesion or cut on the patient. If
a lesion is weeping, disease could also be transmitted
to a patient if it entered a patient's mucous
membranes or an opening in the skin. The risk of
such transmission a routine physical examination,
using the procedures followed by plaintiff, is not
significant.  However, the information about the risks
and plaintiff's procedures were not disclosed to
defendants at the. time, and were not explained until
the trial in this action.

19. Contemporary medical judgment is that a doc-
tor who is infected with AIDS should inform his pa-
tients of the infection, and physicians who are asked
whether they have AIDS should answer the question
directly and truthfully.

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        17a

20. Contemporary medical judgment is that hos-
pitals should verify that their physicians are com-
plying with the contagious disease guidelines of the
Center for Disease Control. These guidelines include
periodic monitoring and spot checking of the physi-
cians. The CDC recommendations provide that AIDS
infected health care workers should have their work
assignments and patient care duties reviewed by a
panel of physicians.

Plaintiff was uncertain of the application of CDC
guidelines. He gave conflicting testimony on whether
there was any supervision or monitoring by the
facility to determine if physicians are in compliance
with the CDC guidelines. During his deposition he
testified that there was no supervision or monitoring
by either the facility or the hospital. He described
the practice at both the facility and the hospital as
one of "self monitoring" by each physician. Plain-
tiff also testified that the facility is supervised by
the hospital through unspecified infection control
policies. He was not conversant with the infection
control procedures that the hospital uses to supervise
the facility. He also testified that the hospital may
have verification procedures in place, but he was not
conversant with those procedures.

21. In taking the actions described above, defen-
dants did not act solely because of plaintiff's illness.
Rather, defendants acted because plaintiff, the facility
and the hospital did not answer the FBI's concerns
about whether plaintiff had Kaposi's Sarcoma and
about the risks and prevention, but provided only
conclusory statements. As a result of the minimal
information provided by plaintiff, the facility and the
hospital, defendants were also unable to determine
whether plaintiff was "otherwise qualified" to per-

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18a

form physical examinations for FBI agents and
applicants.

      Conclusions of Law

1.  Section 504 of the Act prohibits defendants
from discriminating against an otherwise qualified
handicapped person solely because of the individual's
handicap.

2. Title VII standards of proof apply to cases under
the Act. See Smith v. Barton, 914  F.2d 1330, 1339-
1340 (9th Cir.1990), cert. denied, - U.S. -, 111
S. Ct. 2825, 115 L.Ed.2d 995 (1991).

3. The Ninth Circuit has determined that plaintiff
was handicapped within the meaning of the Act. Doe
v. Attorney General, 941 F.2d 780, 797 (9th Cir. 1991).

4. A Section 504 plaintiff must show that he was
discriminated against "solely by reason of" his
handicap. See Norcross v. Sneed, 755 F.2d 113, 117
n. 5 (8th Cir.1985); Harris v. Adams, 873 F.2d 929, 933
(6th Cir.1989); Leckelt v. Boards of Cornm'rs of Hosp.
Dist. No. 1, 909 F.2d 820, 825 (5th Cir.1990). This
issue was not previously determined by this court or
the Ninth Circuit.

5. A Section 504 plaintiff must also show that
notwithstanding his handicap, he is "otherwise qual-
ified" for the position in question. Title 29 U.S.C.
794; See School Bd. of Nassau County, Fla. v.
Arline, 480 U.S. 273, 287 n. 17, 107 S. Ct. 1123, 1131
n. 17, 94 L.Ed.2d 307 (1987). The issue of whether
plaintiff was "otherwise qualified" was not previously
resolved by this court or by the Ninth Circuit. "In
the employment context, an otherwise qualified per-
son is one who can perform `the essential functions' of
the job in question." (quoting 45 C.F.R. 84.3(k)).
Apart from plaintiffs disease, plaintiff was able to
perform the essential functions of his job, and     

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19a

defendants were satisfied with his performance up to
August 1988.

6. If an individual's disability is a contagious
disease, he is not "otherwise qualified" if he poses a
significant risk of communicating the disease to
others in the workplace. An employer can consider
the risks posed by a physician's contagious disease in
determining whether he is "otherwise qualified" to
perform physical examinations. The Act permits an
employer to make inquiry about an individual's
disability if the information sought is relevant to his
ability to do the job or to the safety of patients or
coworkers. See Carter v. Casa Cent., 849 F.2d 1048,
1056 (7th Cir.1988). School Board of Nassau County
v. Arline, 480 U.S. 273, 287 n. 16, 107 S. Ct. 1123, 1131
n. 16, 94 L.Ed.2d 307 (1987). This determination
requires an individualized inquiry. Chalk v. United
States Dist. Court Cent. Dist. of California, 840 F.2d
701,705 (9th Cir.1988).

7. The individualized inquiry requires findings
based on reasonable medical judgment, given the
present state of medical knowledge, about four
factors:

  (a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long
is the carrier infectious), (c) the severity of the
risk (what is the potential harm to third parties)
and (d) the probabilities the disease will be trans-
mitted and will cause varying degrees of harm.

Arline, 480 U.S. at 288, 107 S.Ct. at 1131. Chalk, 840
F.2d at 705. The risk of transmission of a disease in a
routine physical examination, using the procedures
followed by plaintiff, is not significant. However, the
information about the risks and plaintiff's procedures

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20a

were not disclosed to defendants at the time, and were
not explained until the trial in this action.

8. If a plaintiff doctor will not allow the inquiry
necessary to determine whether his disease poses a
significant risk to patients, he is not "otherwise
qualified" for employment. Leckelt v. Board of
Comm'rs of Hosp. Dist. No. 1, 909 F.2d at 827-830.

9. The Act does not require that defendants dis-
pense with all reasonable precautions or require-
ments in order to ensure the participation of a
handicapped person. Doe v. New York Univ., 666
F.2d 761, 775 (2d Cir.1981).  Section 504 simply
requires even-handed treatment of the handicapped
person who otherwise meets the employment stan-
dards "so that he or she will not be discriminated
against solely because of the handicap." Id.

10. Section 504 requires defendants to make rea-
sonable accommodations to an "otherwise qualified"
handicapped employee.  An agency can only accom-
modate an individual based on "what is known about
the individual's handicapping condition." Langon v.
United States Dept. of Health and Human Services,
749 F.Supp. 1, 6 (D.D.C.1990). When a plaintiff refuses
to provide information regarding his communicable
disease, he prevents defendants from knowing if he
has a communicable disease and from deciding what, if
any, reasonable  measures could protect the patients
from the transmission of disease. "In other words,
[the physician] prevented [the referring agency] from
knowing whether he had a handicap for which federal
law arguably required reasonable accommodations."
Leckelt, 909 F.2d at 830.

11. Defendants' decision to use other health care
providers was not based solely on plaintiff's handicap.
It was at least in part based on plaintiff's refusal to

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21a

provide information. His conclusory statements did
not inform defendants as to whether plaintiff had a
handicapping condition, and they prohibited defen-
dants from determining whether plaintiff was "other-
wise qualified" or what reasonable accommodations
could be made.

12. Accordingly, the court concludes that judg-
ment should be entered in favor of defendants.

13. Any findings of fact that are in effect con-
clusions of law should be considered as such. Any
conclusions of law that are findings of fact should be
deemed findings of fact.

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22a

APPENDIX C

UNITED STATES COURT OF APPEALS
  FOR THE NINTH CIRCUIT.

  NOS. 89-15933, 89-16134

JOHN DOE, PLAINTIFF-APPELLANT

v.

ATTORNEY GENERAL OF THE UNITED STATES;
THE DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION; RICHARD HELD, SPECIAL AGENT IN
CHARGE OF THE SAN FRANCISCO OFFICE, FEDERAL
    BUREAU OF INVESTIGATION
     DEFENDANTS-APPELLEES

Appeal from the United States District Court
for the Northern District of California

[Filed Aug. 1, 1991]

Before: CHOY and FLETCHER, Circuit Judges, and
FITZGERALD, District Judge. *
                         
___________________(footnotes)

*  Hon. James M. Fitzgerald, Senior United States Dis-
trict Judge for the District of Alaska, sitting by designation.

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23a

FLETCHER, Circuit Judge:

John Doe appeals district court judgments (1)
holding that there is no private cause of action
against the United States under section 504 of the
Rehabilitation Act, (2) holding that the defendants did
not violate Doe's right to privacy, and, (3) granting an
individual defendant qualified immunity. On appeal,
the case presents issues of mootness, jurisdiction,
sovereign immunity, and qualified immunity.

         FACTS

John Doe was a physician and director of a clinic
owned and operated by a hospital. 1. Between December
1984 and August 1988, the San Francisco office of the
Federal Bureau of Investigation (FBI), under an
annually renewed procurement contract, sent all of
its agents to the clinic for annual physical exami-
nations and all of its potential agents there for
pre-hiring examinations. Doe performed virtually all
of the physical examinations, and his salary was based
in part on the number of the examinations that he did.

Doe has AIDS. 2. On about August 15, 1988, an
unidentified third party told the FBI that Doe had
Kaposi's sarcoma, a cancerous skin disease often
contracted by persons with AIDS. The FBI asked
Doe if he had AIDS. He would not confirm that he did
but assured the FBI that his routine exams posed no 
  
___________________(footnotes)

   1  The district court permitted the plaintiff to file a
"John Doe" complaint to protect his privacy. For the same
reason, the court did not use the proper names of the health
care facilities within which he worked. We continue the prac-
tice of protecting his anonymity by referring to the plaintiff as
 John Doe and the health care facilities as the "hospital" and the
clinic. "

   2 Acquired Immune Deficiency Syndrome, caused by the
Human Immunodeficiency Virus (HIV).

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         24a

risk to the patients. The FBI, evidently not satisfied,
stopped sending agents and applicants to Doe on
August 23 because of concern about his illness.
Richard Held, Special Agent in Charge of the San
Francisco Office of the FBI, reached this decision
because Doe would not refute the allegation that he
had AIDS, provide a different doctor to do the exams,
or agree to tell the agents that he had AIDS and let
them decide whether to permit his examination.

Amidst ongoing discussions among the FBI, Doe,
and the hospital, the FBI asked hospital repre-
sentatives and the FBI's Assistant Director of
Administrative Services about risk. The hospital
representatives said there was none; the Assistant
Director did not answer the question. The FBI also
consulted its lawyers. It did not consult with any
independent medical authority about the potential
risk. Doe, hospital and clinic officials, and FBI per-
sonnel met on September 7; the FBI still wanted to
know if Doe had AIDS. Doe and the hospital still
would not confirm or refute the allegation but told the
FBI that Doe's examinations posed no risk to FBI
agents and applicants. They told the FBI specifically
that Doe adhered to the Centers for Disease Control
(CDC) and American Medical Association guidelines
for infection control.

On September 30, Doe sued the Attorney General of
the United States, the Director of the FBI, and Agent
Held. He sought temporary relief and a permanent
injunction restraining the FBI from (1) entering into
an agreement with anyone but Doe's hospital to
perform the physicals, (2) sending the agents or
applicants to anyone but the hospital because of Doe's
handicap, (3) revealing to anyone that Doe was 
handicapped or that the handicap was AIDS, and (4)
discouraging-other federal agencies from using Doe's

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25a

or the hospital's services. Doe also sought money
damages and attorneys' fees.

The district court granted a preliminary injunction
preventing the FBI from disclosing Doe's condition
and from refusing to send agents and applicants to the
clinic. The FBI responded by arranging with three
different health care organizations, including Doe's,
to provide physical examinations. Before the FBI
stopped sending people to the clinic, Doe had done
30-40 physicals per month. After the preliminary
injunction, he saw about five FBI patients per month.

On April 5, 1989, the district court granted
summary judgment in favor of Agent Held on the
ground of qualified immunity. The district court held
a trial between May 9 and May 17. On August 25,
1989, the district court issued its published opinion on
the remainder of the case. Doe v. Attorney General,
723 F. Supp. 452 (N.D.Cal.1989).

      JURISDICTION

The district court had jurisdiction under 28 U.S.C.
1331. We have jurisdiction of the appeal under 28
U.S.C. 1291.

     STANDARD OF REVIEW 

The decision that there is no cause of action
against the government under section 504 of the
Rehabilitation Act is a legal question reviewed de
novo. United States v. McConney, 728 F.2d 1195,
1201 (9th Cir.1984) (en bane). The district court's
findings of fact can be reversed only if clearly
erroneous.  Id. Review of the district court's decision
that Held is entitled to qualified immunity is de novo.
Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir.1989),
cert. denied, - U.S. -, 111 S. Ct. 341, 112 L.Ed.2d
305 (1990).

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  26a

DISCUSSION

I. MOOTNESS

The government contends that Doe's injunctive
claims are moot. A few days after the district court
decision, Doe was stricken with CMV retinitis, which
seriously impaired his vision. He resigned from the
hospital staff for reasons of disability. By the time of
oral argument before our court on May 17, 1990, his
vision had improved so that he could have resumed
full-time work but for recurrent bouts of extreme
fatigue. Doe's physician informed his lawyers that it
was "extremely unlikely that he would be able to
resume work full time." Appellant's Opening Brief at
5 n. 3.

Doe claims that one of the injuries he alleged at
trial, distress that his coworkers' jobs are in jeopardy
because of the discrimination against him, could be
remedied by an injunction requiring the FBI to
continue sending agents to the clinic for physicals.
The hospital is not a party to the" suit," however, and
Doe has no standing to seek an injunction requiring
the FBI to send agents to the clinic when Doe has
resigned his position there.

Doe claims that even if his injunctive claims are
moot, he is entitled to declaratory relief, citing
Greater Los Angeles Council on Deafness, Inc. v.
Zolin, 812 F.2d 1103,1113 (9th Cir.1987). The plaintiff
in Zolin, however, sought declaratory relief in the
complaint. When the court ruled the injunctive claim
moot, it remanded for a ruling on the claim for
declaratory relief. Doe did not seek declaratory relief
in his complaint, and he cannot, in effect, amend it
now.

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28a

The Supreme Court's approach to statutes of
limitations for the federal civil rights laws are in-
structive. In Goodman v. Lukens Steel Co., 482 U.S.
656, 660-62, 107 S. Ct. 2617, 2620-22, 96 L.Ed.2d 572
(1987), the Supreme Court addressed the issue of what
statute of limitations should apply to actions under
42  U.S.C. 1981. Section 1981 prohibits discrimina-
tion in making and enforcing contracts and other
activities. Like 42 U.S.C. 1982 and 1983, which
prohibit discrimination in property rights matters
and under color of state law, respectively, section
1981 does not contain its own statute of limitations;
federal courts. are to apply "the most appropriate or
analogous state statute of limitations."  Id. at 660, 107
S. Ct. at 2620.  In Wilson v. Garcia, 471 U.S. 261,
266-68, 105 S. Ct. 1938, 1941-43, 85 L.Ed.2d 254 (1985),
the Supreme Court had decided that the state statute
of limitations for personal injury claims is most
appropriate to and must be applied in section 1983
actions.  In Goodman, the appellant argued that
because section 1981 dealt "primarily with economic
rights, more Specifically the execution and enforce-
ment of contracts," the more appropriate statute of
limitations is  the one applicable to suits for inter-
ference with contractual rights.

The Court disagreed, holding that the personal
injury statute must be applied also in section 1981
actions. Id. at 661, 107 S. Ct. at 2621. The Court
reasoned,

Insofar as [section 1981] deals with contracts, it
declares the personal right to make and enforce
contracts, a right, as the section has been
construed, that may not be interfered with on
racial grounds. The provision asserts, in effect,
that competence and capacity to contract shall not
depend upon race. It is thus part of a federal law

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29a

barring racial discrimination, which . . . is a
fundamental injury to the individual rights of a
person. . . . That  1981 has far-reaching economic
consequences does not change [the] conclusion
[that 1981 claims should also be characterized as
personal injury claims], since such impact flows
from guaranteeing the personal right to engage in
economically significant activity free from racial-
ly discriminatory interference.

Id. at 661-62, 107 S. Ct. at 2621.

The Seventh Circuit has also held recently that
"the rights that antidiscrimination laws such as Title
VII and section 1981 and their state equivalents
confer on employees are not contract rights . . . . 
[They] are a species of tort right." McKnight v.
General Motors  Corp., 908 F.2d 104,112 (7th Cir. 1990)
Doe is not an-employee of the FBI; he is claiming in
effect as a third-party beneficiary of the contract
between the FBI and the hospital that the FBI
discriminated against him in ceasing to send FBI
recruits and agents to the clinic for their physicals.
Under the Supreme Court's reasoning in Goodman,
however, his discrimination allegation, though re-
lated to a contract, should be characterized as a
personal injury claim, not a contract claim. 4. Doe's
damage claims against the government therefore need
not be heard in the Court of Claims; the district court

___________________(footnotes)

4  We note that in no other case under the federal civil
rights laws is the person alleging discrimination restricted
from being heard in a district court (aside from fulfilling an
initial requirement in some cases that administrative remedies
be exhausted). We doubt that Congress intended to require
discrimination victims, persons who often have limited finan-
cial resources, to file their claims against the government in a
court located in Washington, D. C., rather than permitting
them to file in the district court where they live.

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30a

had jurisdiction to decide them, and we have juris-
diction to review its decision.
      
III. SOVEREIGN IMMUNITY UNDER THE
  REHABILITATION ACT    

The government asserts that the doctrine of
sovereign immunity cloaks the FBI with immunity
from a damages suit for violation of section 504 of the
Rehabilitation Act. Before discussing whether the
government has waived its sovereign immunity, we
will lay the substantive groundwork by reviewing
section 504's protection of the handicapped and the
remedies available for its enforcement.

A. Section 504  

Section 504 of the Rehabilitation Act of 1973, as
amended and codified at 29 U.S.C. Par 794(a), states:

No otherwise qualified individual-with handicaps
in the United States. . . shall, solely by reason of
his or her 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 or
under any program or activity conducted by any
Executive agency or by the United States Postal
Service. 

(Emphasis added.) The paragraph continues to direct
the heads of executive agencies to promulgate
regulations, after receiving congressional approval,
to carry out the Act. The emphasized clause and the
direction to issue regulations are amendments passed
in 1978.  Rehabilitation, Comprehensive Services, and
Developmental Disabilities Amendments of 1978,
Pub.L. No. 95-602, 119, 92 Stat. 2955, 2982. The 1978
Act was a comprehensive re-evaluation of the 1973
Act whose purpose was to "extend and strengthen"
the 1973 Act programs. H.R.Rep. No.  1149, 95th
   
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         31a

Cong., 2d Sess. 1, reprinted in 1978 U.S. Code Cong.
& Admin.News 7312, 7312; see also H.R.Rep. No. 1188,
95th Cong., 2d Sess. 1,1978  U.S.Code Cong. & Admin.
News 7355, 7355 (purpose to "revise and extend" the
1973 Act programs); H. R. Conf.Rep. No. 1780, 95th
Cong., 2d Sess. 65, 1978 U.S.Code Cong. & Admin.
News 7375, 7375 (purpose to extend and establish
additional programs).

Doe relies on the section 504 clause added by the
amendment, which prohibits discrimination "under
any program or activity conducted by any Executive
agency," not on the pre-existing clause, which
prohibits discrimination "under any program or
activity receiving Federal financial assistance." The
pre-amendment version does not protect Doe from
the FBI's alleged discrimination the arrangement
between the FBI and the hospital is a procurement
contract, specifically excluded from the definition of
"federal financial assistance." 28 C.F.R.  41.3(e)
(1990). With the 1978 amendment, however, Congress
intended to close this loophole, subjecting federal
agencies to section 504's nondiscrimination require-
ment, See 124 Cong.Rec. 13,901 (1978) (statement of
Rep. Jeffords) (eliminates federal government's
exemption); id. at 38,549 (statement of Rep.
Brademas) (requires federal compliance); id. at 38,551
(statement of Rep. Jeffords) (eliminates federal
government's exemption); id. at 38,552 (statement of
Rep. Sarasin) (extends coverage to federal govern-
ment). The Justice Department has issued regu-
lations enforcing section 504 that prohibit dis-
crimination on the basis of handicap. 28 C.F.R.
 39.130(b) (1990). Regulation (b)(5) states specifi-
cally, "The agency, in the selection of procurement
contractors, may not use criteria that subject

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32a

qualified handicapped persons to discrimination on
the basis of handicap."

Section 504 originally did not provide an explicit
remedy for the proscribed discrimination, Prior to
the 1978 amendment, however, several courts had
implied a private right of action. Davis v. South-
eastern Community College, 574 F.2d 1158 (4th
Cir.1978), rev'd on other grounds, 442 U.S. 397, 99
S. Ct. 2361, 60 L.Ed.2d 980 (1979); Leary v. Crapsey,
566 F.2d 863 (2d Cir.1977); United Handicapped
Fed'n v. Andre, 558 F.2d 413 (8th Cir.1977); Lloyd v.
Regional Transp. Auth., 548 F.2d 1277 (7th Cir.1977). 5.
The congressional debate on the amendments dem-
onstrates that Congress knew that the courts had
interpreted section 504 to provide this means of
enforcement. 124 Cong.Rec. 37,508 (statement of Sen.
Stafford) ("[t]o date we have permitted certain private
enforcement of Title V" 6).7
                           
___________________(footnotes)

5  The Ninth Circuit agreed in Kling v. County of Los
Angeles, 633 F.2d 876, 878 (9th Cir.1980), as did the Fifth
Circuit in Camenisch v. University  of Texas, 616 F.2d 127, 131
(5th Cir.1980). 
6  Title V includes the Rehabilitation Act's nondiscrimi-
nation provisions.  Section 501 prohibits discrimination in
employment, including that by the federal government.
Section 502 establishes a mechanism for ensuring compliance
with laws dealing with architectural and transportation
barriers to mainstreaming persons with handicaps. Section 503
prohibits discrimination by federal contractors. Section 504,
at issue here, broadly prohibits discrimination in programs
conducted by the federal government or receiving federal
financial assistance.
7  It is also appropriate for us to assume that Congress
knew the then-existing state of the law. Merrill  Lynch, Pierce,
Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S. Ct.
1825, 1839-40, 72 L.Ed.2d 182 (1982); Cannon v. University of
Chicago, 441 U.S. 677,696-97, 99 S. Ct. 1946, 1957-58, 60 L.Ed.2d
560 (1979) ("[i]t is always appropriate to assume that our

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33a

In 1978, Congress also added section 505, a rem-
edy provision, to the Rehabilitation Act. 8. Section
505(a)(2) grants the "remedies, procedures, and
rights" available under Title VI of the Civil Rights
Act, 42 U.S.C.  2000d to 2000d-2, to persons
"aggrieved by any act or failure to act by any
recipient of Federal financial assistance or Federal
provider of such assistance under [section 504]." 9.
Section 2000d, Title VI's central provision, prohibits
discrimination based on race "under any program or
activity receiving Federal financial assistance." 10.
Section 2000d-1 sets forth the administrative re-
quirements for federal departments and agencies that
manage federal financial assistance programs.
Section 2000d-2 provides judicial and administrative
remedies for persons challenging department or
agency action taken under section 2000d-1. 11. Con-

___________________(footnotes)  

elected representatives, like other citizens, know the law");
Citizens Cornm. to Save the Land Grant Railroads v. Bur-
lington Northernj Inc. 708 F.2d 1430, 1433 n. 3 (9th Cir.1982)
(dicta).
8  Codified  at 29 U.S.C.  794a.

9  Section 505(a)(l) grants the "remedies, procedures, and
rights" available under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e-16, to aggrieved employees or appli-
cants for employment under section 501 of the Rehabilitation
Act.

10  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.

11  Any department or agency action taken pursuant to
section 2000d-1 of this title shall be subject to such judicial
review as may otherwise be provided by law for similar action
taken by such department or agency on other grounds. In the
case of action, not otherwise subject to judicial review,
terminating or refusing to grant or to comply with any

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34a

gress originally modeled section 504 on Title VI and
on Title IX of the Education Amendments of 1972.
Kling, 633 F.2d at 878 n. 3. Title IX prohibits
discrimination based on sex "under any education
program or activity receiving Federal financial
assistance," 20 U.S.C. 1681, and was itself modeled
on Title VI. 12. Cannon, 441 U.S. at 694, 99 S. Ct. at
1956. In the congressional debates on section 505,
Senator Bayh asked and Senator Cranston confirmed
that "section 505 merely extends to the handicapped
the same remedies, procedures and rights already
extended" through Titles VI and VII of the Civil
Rights Act of 1964 and Title IX of the Education
Amendments of 1972. 124 Cong.Rec. 30,349. Neither
Title VI nor Title IX, like pre-1978 section 504,
grants an express private right of action to people
alleging discrimination under the Acts. They provide
only for review of the administrative and regulatory
actions taken by an agency in administering its
funding programs. 13. Also, like section 504, however,

___________________(footnotes)

requirement imposed pursuant to section 2000d-1 of this title,
any person aggrieved . . . may obtain judicial review of such
action in accordance with [the Administrative Procedure Act,
5 U.S.C.  702], and such action shall not be deemed committed
to unreviewable agency discretion . . . . 
12 Section 1681 states in full: "No person in the United
States shall, on the basis of sex, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance."  Title IX's sections 1682
and 1683 are virtually identical to Title VI's sections 2000d-1
and 2000d-2.  Section 1682 sets forth the administrative require-
ments for federal departments and agencies that grant
financial assistance for education programs. Section 1683 pro-
vides judicial and administrative remedies in challenging
department or agency action taken under section 1682.
     13 The section 2000d-2 and section 1683 remedies do not
even apply to the central Title VI and Title IX provisions for

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35a

courts implied such a right in both statutes. Cannon,
441 U.S. at 696-703, 99 S. Ct. at 1957-61 (discussing
history of Title VI implied private right of action); id.
at 717, 99 S. Ct. at 1968 (implying private right of 
action in Title IX). Congress knew that Title VI
              
___________________(footnotes)

prohibiting discrimination (sections 2000d and 1681). Section
505(a)(2) also appears incomplete, although in a different way,
by providing only that victims of discrimination either by the
recipients or the federal providers of federal financial assist-
ance have the Title VI remedies. Section 505(a)(2) parallels the
pre-1978 version of section 504's substantive prohibitions and
does not include the language from section 504's contemporan-
eous amendment adding victims of discrimination by federal
agency programs and activities to section 504's protection.
  This incongruity between section 504's substance and
section 505's remedy appears to have occurred because the
conference committee adopted the House' section 504
amendment and the Senate's section 505 version without
adding section 504's additional coverage to section 505's remedy     
provision, Congress intended, however, to extend section 504's
reach to ensure that no one would be exempt from its
nondiscrimination provisions. See infra  section III.C. Section
505's remedy therefore must be available to victims of
discrimination by federal agencies in their programs and
activities brought within section 504's umbrella by the 1978
amendment. Section 505(b) in fact contemplates enforcement
for all of the substantive rights in Title V (attorney's fees
provision for "any action or proceeding to enforce or charge a
violation of a provision of [Title V]"). The government in its
brief appears to concede section 505's applicability to all section
504 violations.
  Our analysis would not change, however, even if we did
not conclude that section ,505 must cover all violations of section
504. Congress was aware that section 504 provided an implied
private right of action. Yet Congress did not eliminate this
remedy but rather enforced it by adding section 505. We see
no congressional intent to abolish the private right of action
and every intent to reinforce it. As we explain later in our
opinion, there is no evidence that Congress intended to
distinguish between the remedy for the new element of section
504 and the remedy for other violations of the section.

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            36a

provided an implied private right of action for
discrimination victims when it amended section 504
and added section 505(a)(2)'s remedy provision.  See
124 Cong. Rec. 30, 349 (statement of Sen. Bayh).

Title VI and thus section 505(a)(2) provide two
different paths for pursuing relief, depending on the 
claimant's status. Recipients of federal assistance
may pursue judicial or administrative relief as
provided in section 2000d-2 when challenging an
agency's administrative or regulatory action as a
funds administrator. Discrimination victims, how-
ever, have a private right of action in the courts
against the private discriminator implied from the
Act's substantive antidiscrimination provisions. The
question before us is which remedy Congress in-
tended for victims of federal agency discrimination.

B. The Legal Standard for Ascertaining Whether
the Government Has Waived Sovereign Im-
munity

"The United States, as sovereign, is immune from
suit save as it consents to be sued, and the terms of
its consent to be sued in any court define that court's
jurisdiction to entertain the suit." United States v.
Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769-70, 85
L.Ed. 1058 (1941) (citations omitted); Arnsberg v.
United States, 757 F.2d 971, 977-78 (9th Cir.1985) (no
right to money damages against United States
without sovereign immunity waiver). A waiver of
sovereign immunity "cannot be implied but must
be unequivocally expressed" by Congress. United
States v. King," 395 U.S. 1, 4, 89 S. Ct. 1501, 1503, 23
L.Ed.2d 52 (1969). Without such a waiver, the courts

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37a

have no jurisdiction to entertain a suit against the
United States.14

The key to determining whether there has been a
waiver is Congress's intent as manifested in the
statute's language and legislative history. See Block
v. North Dakota, 461 U.S. 273, 287-88, 103 S. Ct. 1811,
1819-20, 75 L.Ed.2d 840 (1983) (finding no con-
gressional intent in statutory language and legis-
lative history to exempt states suing federal
government from statute "of limitations included as a
condition of sovereign immunity waiver); King, 395
U.S. at 5, 89 S. Ct. at 1503 (no indication in Declara-
tory Judgment Act or in its history that Congress
intended the Act to expand Court of Claims's
jurisdiction); Sherwood, 312 U.S. at 590, 61 S. Ct. at
771 (finding no congressional intent in Tucker Act's
language or legislative history to consent to suits in
district courts in addition to Court of Claims); United
States v. Washington, 872 F.2d 874,879 (9th Cir.1989)
("in divining Congressional intent" to waive sov-
ereign immunity, `(we look first to the statutory
language and then to the legislative history if the
statutory language is unclear" (internal quotations
omitted)); see also Middlesex County Sewerage
Auth. v. National Sea Clammers Ass'n, 453 U.S. 1,
13, 101 S. Ct. 2615,2622-23,69 L.Ed.2d 435 (1981) (key
to determining whether statute provides private right
of action is congressional intent, determined by
looking first to the statutory language and structure,

 ___________________(footnotes)
                                     
  14 Although Doe has sued individuals only, he has sued the
Attorney General of the United States and the Director of the
Federal Bureau of Investigation in their official capacities. We
construe his suit against them as a suit against the federal
entities they represent. Gilbert v. DaGrossa, 756 F.2d 1455,
1458 (9th Cir.1985).

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         38a

then to legislative history "and other traditional aids
of statutory interpretation").

Inquiring whether Congress intended to provide a
private right of action against the `United States and
under what conditions is distinct from the similar
task of determining whether a statute provides a
general private right of enforcement. Congressional
intent need not be "unequivocally expressed" for
private rights of action against non-government
defendants. The Supreme Court approved using four
factors in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080,
2087-88,45 L.Ed.2d 26 (1975), to decide whether Con-
gress has implied a private right of action in a
statute: whether the plaintiff falls within "the class
for whose especial benefit the  statute was enacted";
whether Congress indicated its intent, either ex-
plicitly or implicitly, to create "or deny a remedy;
whether the remedy is consistent with the statute's
underlying purposes; and whether the cause of ac-
tion traditionally is pursued in the state, rather
than federal, forum. As the Third Circuit noted in
Patentas v. United States, 687 F.2d 707, ,711 (3d
Cir.1982), however, Cort has not changed the focus for
implying private rights of action against the United
States. In this more narrow inquiry, the central,
dispositive consideration is Cort's second factor as
modified to be consistent with traditional sovereign
immunity analysis, i.e., only explicit congressional
intent in the statutory language and history will
suffice. 15.

___________________(footnotes)
                                       
15  We note parenthetically that focusing on Cort's second
factor and determining legislative intent implicitly requires us
to look at Cort's other factors. For Congress to have intended
to create a private right of action, it must necessarily have
meant to enact the statute for the benefit of  the plaintiff class,
the right of action must be consistent with the statute's

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39a

The case law illustrates this distinction between
inferring private rights of action generally and
inferring them against the United States. A private
right of action may be implied against a non-
government defendant even though the statutory
language grants no such right explicitly and the
legislative history is silent on Congress's intent to
provide it.  See Northwest Airlines, Inc. v. Transport
Workers Union of Am., AFL-CIO, 451 U.S. 77, 94, 101
S. Ct. 1571, 1582, 67 L.Ed.2d 750 (1981) (silent leg-
islative history would not be fatal with some other
indication of congressional intent); Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100
S. Ct. 242,246,62 L.Ed.2d 146 (1979) (intent need not be
express but may "appear implicitly in the language or
structure of the statute, or in the circumstance of
enactment"); Cannon, 441 U.S. at 694, 99 S. Ct. at 1956
(when law grants specific rights to certain class,
explicit purpose to deny remedy but not absence of
explicit purpose to create one would be controlling);
Osborn v. American Ass'n of Retired Persons, 660
F.2d 740,745 (9th Cir.1981) ("congressional silence is
not necessarily fatal to implication of a private right
of action"). A silent statute and silent legislative
history, however, cannot justify implying a private
right of action against the United States because
Congress must unequivocally express its intent to
create such a right.

The case law demonstrates that the courts have
consistently refused to imply private rights of action

___________________(footnotes)

purposes and scheme, and the right of action certainly will be
traditionally federal. Cf. Touche Ross & Co. v. Redington, 442
U.S. 560, 575, 99 S. Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979) (Cort
second factor is the central inquiry, with the others tradition-
ally relied upon in determining legislative intent).

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40a

against the United States or to ignore a condition on
a sovereign immunity waiver when the statute and
legislative history either were silent or indicated
congressional intent not to grant the right requested.
See United States v. Mottaz, 476 U.S. 834,844-48,106
S. Ct. 2224, 2230-33,90 L.Ed.2d 841 (1986) (government
waived its sovereign immunity in Quiet Title Act
only with respect to one class of cases because United
States not mentioned as a potential party with regard
to other class); Block, 461 U.S. at 287-90, 103 S.Ct. at
1819-22 (Quiet" Title Act and legislative history
contained no indication that Congress intended to
exempt states from condition on sovereign immunity
waiver, a specific statute of limitations); Lehman v.
Nakshian, 453 U.S. 156, 160-70, 101 S. Ct. 2698,
2701-06, 69 L.Ed.2d 548 (1981) (Age Discrimination in
Employment Act's language, structure, and legis-
lative history indicated Congress's intent that waiver
of United States' sovereign immunity from suits
under the Act was conditioned on alleged discrimi-
nation victim having no right to jury trial); United
States v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47  L.Ed.2d
114 (1976) (no indication either in Classification Act
or its legislative history that plaintiffs were entitled
to back, pay for positions to which they should have
been appointed); Gaj v. United States Postal Serv.,
800 F.2d 64 (3d Cir.1986) (Postal preorganization Act
is proscriptive with no focus on a benefited class,
and neither statute's language or history shows
congressional  intent to create a private remedy);
California v. Walters, 751 F.2d 977 (9th Cir.1984) (per
curiam) (congressional intent to waive sovereign
immunity only from suits for injunctive relief, not
from criminal sanctions, in language and history of
statute on hazardous waste disposal, 42 U.S.C.
6961); Patentas, 687 F.2d at 710-13 (no explicit
congressional intent in language or legislative

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41a

history of Ports and Waterways Safety Act of 1972 to
waive immunity from private lawsuits against Coast
Guard to require it to fulfill statutory responsi-
bilities); California v. Quechan Tribe of Indians, 595
F.2d 1153, 1155-56 (9th Cir.1979) (neither express
terms nor legislative history of 18 U.S.C.  1162,
jurisdictional statute for criminal offenses in Indian
territory, revealed any congressional intent to waive
Tribe's sovereign immunity). Section 504, however,
contrasts starkly with these cases, for Congress
unequivocally expressed its intent in the statute's
language and history to provide handicapped victims
of government discrimination a private right of action
for damages against the government discriminator.

C. Section 504's Language and Legislative History

1. Statutory Language

a. Section 504

When Congress amended section 504 in 1978, it was
aware, as we have discussed, that the courts had
interpreted section 504 to provide a private right of
action for discrimination victims. "The fact that a
comprehensive reexamination and significant amend-
ment" of the Rehabilitation Act left section 504 intact
as it previously existed and under which the federal
courts had implied a private right of action "is itself
evidence that Congress affirmatively intended to
preserve that remedy." Merrill Lynch, 456 U.S. at
381-82, 102 S. Ct. at 1841; see also Cannon, 441 U.S. at
698-99, 99 S. Ct. at 1958-59 (Congress's failure to
negate private right of action implied in Title VI and
Title IX provides "evidence that Congress at least
acquiesces in, and apparently affirms," the right).
Congress amended the statute to prohibit discrimi-
nation in "any program or activity conducted by any
Executive agency or by the United States Postal

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42a

Service." Significantly, Congress did not make the
amendment a new section; it did not even use a new
sentence. Congress appended the new coverage to the
end of the pre-existing sentence under which the
private cause of action  had been implied.    

That Congress intended violations of the new
clause to be enforced in the, same way as violations of
the pre-existing clause is a more reasonable con-
clusion than that Congress intended enforcement to
be different. We infer likewise from the case law that
this method of amendment  signifies Congress's intent
that the two clauses be enforced in the same way. In
Lehman, 453 U.S. at 162-68, 101 S. Ct. at 2702-06, the
Court looked at a similar type of situation under
the Age Discrimination in Employment Act (ADEA),
29 U.S.C. 621-634. Section 7(c) of the Act had
authorized civil actions for age discrimination
against private employers and expressly provided the
right to a jury trial. In 1974, Congress amended the
ADEA. It first expanded the Act's reach by adding
state and local governments as potential defendants to
section 7(c), subjecting them to the same enforcement
procedures as private employers. Congress `further
broadened the Act by proscribing age discrimination
in federal employment but did so in an entirely new
section (section 15) with a distinct statutory scheme
without expressly including the right to a jury trial.
This difference in treatment led to the Court's
conclusion that Congress intended that enforcement
against federal defendants be distinct from enforce-
ment against private employers and state and local
governments. Specifically, persons suing federal de-
fendants would not have the right to a  jury  trial.

Lehman makes clear that adding an entirely new
statutory section to make federal defendants liable
for discrimination indicates Congress's intent to

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43a

distinguish between enforcement for federal as
opposed to other defendants. The converse is im-
plicit; by simply adding federal liability to a pre-
existing section 504, Congress intended that there be
no distinction in its enforcement against federal
defendants.

      b. Section 505(b)             

Doe points to section 505(b) as evidence that
Congress must have intended that federal agencies be
liable for damages for discriminating against the
handicapped in their programs and activities. Section
505(b) states: "In any action or proceeding to enforce
or charge a violation of a provision of [Title V], 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." (Emphasis added.)
This section specifically contemplates the United
States as a party in Rehabilitation Act lawsuits. Doe
notes that the United States cannot be a plaintiff
under the Act. For the United States to be a pre-
vailing party, it must be a defendant. Congress must
have intended, therefore, `that federal agencies be
subject to lawsuits for their discrimination against
the handicapped. Otherwise, part of the attorney's
fees provision would be meaningless.

In reaching this conclusion, however, Doe fails to
consider section 501, under which the federal
government is liable for handicap-based discrimi-
nation as an employer. Section 505(b) would not be
meaningless even if federal entities could not be
defendants under section 504 because employees
would be entitled to attorney's fees against the
government in successful section 501 proceedings.

Although Doe's specific argument on section
505(b)'s meaning fails, section 505(b) does indicate

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44a

congressional intent to treat all Rehabilitation Act
Title V defendants the same except that the Uni-
ted States as a prevailing party is not entitled
to attorney's fees.  Section 501 makes the federal
government' liable for employment discrimination,
section 504 makes agencies liable for discrimination
in their activities other than employment, and section
505 makes the government liable for attorney's fees.
There is no contrary indication that Congress
intended to exclude the federal government from its
reach. The statute's internal approach is to prohibit
discrimination against the handicapped by anyone and
to install a unitary enforcement mechanism.

The most reasonable interpretation from the
language and structure of the statute is that Con-
gress intended. to make federal departments and
agencies liable for discrimination against the handi-
capped in their programs and activities. Our reliance
need not be soley on an interpretation of the
language, however. The legislative history of the
Rehabilitation Act buttresses this conclusion.

2. Legislative History

Although the House Reports and House Conference
Report on the Rehabilitation Act amendments,
reprinted in 1978 U.S. Code Cong. & Admin.News
7312, do not explain the motivation to amend section
504 or add the section 505 remedy provision, sev-
eral members of Congress explained the reasons in
the congressional debates. Remarks in the House
focused on the need to make the discrimination
prohibitions applicable to federal agencies, while in
the Senate, members focused on ensuring the
viability of private rights of action through an
attorneys' fees provision.

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45a

In the House debates before initial passage of the
bill, Representative Jeffords, an author of the bill,
stated that the purpose of the section 504 amendment
was "simply [to] extend[ ] the coverage of section 504
to include any function or activity of any department
or agency of the Federal Government." He continued,

When the original legislation was developed it
was intended to apply to every phase of American
life, but the Justice Department on September 23,
1977, issued an opinion at the request of HEW
declaring that the Federal Government was
exempt from the statute. This amendment re-
moves that exemption and applies 504 to the
Federal Government as well as State and local
recipients of Federal dollars. The amendment re-
quires each department and agency to promulgate
regulations covering this new part. I think this is
fair and appropriate and should go a long way
toward developing a uniform and equitable
national policy for eliminating discrimination.

124 Cong. Rec. 13,901. Representative Brademas ex-
plained, in debates over the bill after conference, that
the bill "would require that Federal departments and
agencies comply with the provisions. of section 504."
Id. at 38,549. Representative Jeffords reiterated,

under section 504, . . . the conferees accepted a
provision which I authored which I think brings
fairness and equity to the entire picture in
eliminating discrimination against the handi-
capped wherever it exists. In September 1977 the
Justice Department issued an opinion at the
request of the Department of Health, Education,
and Welfare, declaring that the Federal Govern-
ment was exempt from section 504. Somehow it
did not seem right to me that the Federal

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46a

Government should require States and localities
to eliminate discrimination against the handi-
capped wherever it exists and remain exempt
themselves. So I developed a provision which is
in this conference report that extends coverage
of section 504 to include any function or activity
in every department or agency of the Federal
Government.

Id. at 38,551. Finally, Representative Sarasin added,

[I]f laws are necessary and good, they should also
apply to us. This legislation would extend the
provisions of section 504 to each department,
division, and agency of the Federal  Government.
No one should discriminate against an individual
because he or she suffers from a handicap-not
private employers, not State and local govern-
ments, and most certainly, not the Federal
Government. 

Id. at 38,552.

The Senate focused on the purpose of the  attorneys'
fees provision in section 505 in encouraging private
enforcement of Title V. Section 505(b) states: "In any
action or proceeding to enforce or charge a violation
of a provision of [Title V], 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 Senate intended for this to parallel the
Civil Rights Attorney's Fees Act of 1976, 42 U.S.C.
1988. 16.

___________________(footnotes)

16  "In any action or proceeding to enforce a provision of
sections  1981, 1982, 1983, 1985, and 1986 of this title, . . . or title
VI of the Civil Rights Act of 1964, 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."

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47a

Senator Cranston stated, in debates over the
Senate version of the bill, "Such allowance of
attorneys' fees would be an important step in assist-
ing all handicapped individuals in their struggle by
permitting equal access to the courts to enforce. the
provisions of Title V." 124 Cong.Rec. 30,346. He
continued,

[T]he rights extended to handicapped individ-
uals under title V  . . . . Federal Government
employment, physical accessibility in public
buildings, employment under Federal contracts,
and nondiscrimination under Federal grants-are
and will continue to be in need of constant
vigilance by handicapped individuals to assure
compliance. Private enforcement of these title V
rights is an important necessary aspect of
assuring that these rights are vindicated and
enforcement is uniform.  The availability of at-
torneys' fees should assist substantially in this
respect. As noted in the report to accompany
S. 2278, the Civil Rights Attorneys' Fee Awards
Act of 1976 (S.Rept. 94-1011):

    (A)ll . . . civil rights law depend [sic]
   heavily upon private enforcement, and fee 
   awards have proved an essential remedy if
   private citizens are to have a meaningful
   opportunity to vindicate congressional
   policies which these laws contain.

The balance of Senator Cranston's remarks further
reinforced the need to provide fees to the handicapped
to ensure private enforcement. Id.; see also id. at
30,349 (statement of Sen. Cranston).

In the debate on the conference version of the
bill, Senator Stafford reiterated the need for pri-
vate enforcement. Id. at 37,507. After essentially

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         48a

repeating what Senator Cranston had said a month
earlier, he added,

To date we have permitted certain private en-
forcement of title V and, yet, we have not provided
the means by which such private rights of action
are meaningful.  This provision [on attorney's
fees] will go a long way toward assisting
handicapped individuals in their efforts to achieve
their full and equal share of the rights to which
they are entitled.

Two things are starkly  clear from the
congressional debates. First, Congress intended to
put the federal government on equal footing with
everyone else in making it subject to section 504's
prohibition of discrimination against the handicapped.
Second, Congress intended to encourage private
parties to pursue enforcement of Title V, including
section 504, through private rights of action. The
debates consider a purpose of both section 504 and
505(b) to be the development of uniformity under Title
V's provisions, giving all handicapped persons an
equal chance at justice. The goal of uniform private
enforcement cannot be accomplished by giving a right
only to injunctive relief under the APA, the position
advanced by the Justice Department, when the culprit
is a federal agency.  Although the debates do not state
outright that section 504 subjects federal agencies to
private actions for money damages, they nevertheless
unequivocally express Congress's intent to do pre-
cisely that.

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49a

3. Case Law

a. The distinction between agency as adminis-
trator and regulator and agency as pro-
prietary discriminator.

Only one case has specifically addressed the issue
of a private right of action against the government
under section 504, though apparently not for damages.
Cousins v. Secretary of United States Dep't of
Transp., 880 F.2d 603 (lst Cir.1989). The Department
of Transportation (DOT) had a regulation requiring a
minimum level of hearing for truck drivers and would
not grant waivers under this provision, although it
did so for other physical qualifications. Cousins, a
deaf truck driver with a state driver's license, sued
DOT, claiming that the regulation and DOT's refusal
to grant  him a waiver violated section 504.

The First Circuit perceived the case as one in-
volving a claim against a federal agency as regulator.
The court found that section 504 "does not expressly
provide a remedy for one harmed by a federal agency's
regulatory action. . . . [T]he Act is silent about
whether and how a person injured by the government
as regulator is to enforce the Act against the
government." Id. at 605 (emphasis added). The court
held that Cousins had a right to relief under the
Administrative Procedures Act. Id. at 607. The court
stated, "Congress has not said or suggested, any-
where in the Rehabilitation Act or its legislative
history, that the Act was meant to give rise to a right
of action against the government as regulator,
distinct from the general, background right to
challenge regulatory action under the APA."  Id.

Although the court did not appear to consider that a
claim might derive from dealings with a federal
agency acting in a capacity other than regulator, it

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50a

nevertheless confined its holding to regulatory
action. 17. The court considered the effects of its
decision to be jurisdictional only; under the APA,
Cousins's appeal from DOT's ruling would be to the
circuit court. Although the court did not mention
the specific relief  sought by Cousins, he apparently
sued only for injunctive relief. The APA provides
injunctive relief, not damages. The court did not
mention that its holding would eliminate a damages
claim. 18.
Doe's case is distinct from Cousins. The FBI acted
in its proprietary capacity, not its administrative or
regulatory capacities, when it demanded that Doe
either deny that he had AIDS or that the hospital find
someone else to do the FBI agents' physical examina-
tions. 19. The Justice Department claims that Doe not

___________________(footnotes)

17 We accept on its face the First Circuit's characteri-
zation of the government's role as  regulator  in Cousins's case.
We note, however, that we allowed a section 504 plaintiff
seeking an injunction that would require a government
defendant to issue regulations under section 504 to proceed in
federal court, without government challenge. Williams v.
United States, 704 F.2d 1162, 1162 (9th Cir.1983). The Seventh
Circuit also found a Title VI violation in. the Department of
Housing and Urban Development's actions as a provider of
financial assistance in Gautreaux  v. Romney, 448 F.2d  731,
737-41 (7th Cir.1971).
18  The dilemma in Cousins resulted from the incongruity
between section 504's substantive laws and section 505's remedy
provision. See supra p. 787 n. 13. Section 505 does not specifi-
cally address a situation like Cousins's or Doe's, where the
discrimination does not occur in a financially-assisted private
activity but in an activity operated by the federal government
itself.  The First Circuit nevertheless agreed that a cause of
action existed against the government pursuant to section 504,
but under the APA.
19  The Seventh Circuit also distinguished between the
discriminator and the administrator in Salvador v. Bennett, 800

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51a

only should be limited to injunctive relief, but that the
relief should be available only under the Adminis-
trative Procedure Act. The FBI's action, however, is
clearly not the kind of agency action that Congress
designed the APA to address. The APA's purpose
is to provide an administrative forum for those
challenging administrative and regulatory agency
action, not to provide a forum for adjudicating
government tort liability. The Rehabilitation Act's
legislative history, in any case, demonstrates
Congress's intent not to limit victims of government
discrimination to enforcement through injunctive
relief under the APA but to permit enforcement
through the same means available against private
parties: enforcement in the courts with damages and
equitable remedies.

b. Title VI and Title IX parallel.

As we have noted, Congress originally patterned
section 504 after Title VI of the Civil Rights Act of
1964 and Title IX of the Education Amendments of
1972 20. and assumed enforcement for each would be the
same. See Cannon, 441 U.S. at 696, 99 S. Ct. at 1957
(Congress assumed Title IX would be interpreted and    
applied as Title VI had been); 124 Cong.Rec. 30,349
(statement of Sen. Bayh) (section 505 extends Title
IX "remedies, procedures and rights" to section 504).
No cases, however, have addressed whether a private.
                                                    
___________________(footnotes)

F.2d 97, 99 (7th Cir.1986) (no private right of action against
Secretary of Education for not investigating plaintiff's alle-
gation more completely that university had violated section
504). 20  The pattern was to provide that no person could "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," whether on the basis of
handicap in section 504, sex in Title IX, or race in Title VI.

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52a

right of action against the federal government exists
for money damages under Title VI or Title IX. This
is understandable since those statutes, like pre-1978
section 504, focus on discrimination by federal
financial assistance recipients, i.e., by private en-
tities, Claims against the government for directly
discriminating against program participants would be
unlikely since the government neither runs nor
controls such programs.

Gautreaux v. Romney, 448 F.2d 731 (7th Cir.1971),
is an exception. Black tenants and applicants for
public housing in Chicago did sue the Secretary of
Housing and Urban Development for declaratory and
injunctive relief. The Department of Housing and
Urban Development provided financial assistance for
public housing in Chicago. The plaintiffs asserted,
and the court agreed, that the Department had
violated Title VI by knowingly acquiescing in the
Chicago Housing Authority's discriminatory housing
program. 21

Fortunately, cases rarely appear in which the
government is accused of such discriminatory be-
havior.  Gautreaux reinforces our conclusion,
however, that persons challenging the federal govern-

___________________(footnotes)

21  The district court had held that the doctrine of
sovereign immunity applied to bar part of plaintiffs' suit. The
defendant abandoned sovereign immunity, however, as a
ground for affirmance on appeal. 448 F.2d at 733, 735. The
plaintiffs had alleged a Fifth Amendment violation in addition
to making their Title VI claim, and the opinion does not
indicate whether defendant claimed sovereign immunity as to
both or only one of these claims. The court does note that the
doctrine would not protect the defendant because it "does not
bar a suit such as this which is challenging alleged unconsti-
tutional and unauthorized conduct by a federal officer." Id. at
735. Plaintiffs sued the Secretary, however, in his official, not
individual capacity.

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         53a

ment's own discriminatory activity in violations of
the Title VI, Title IX, and section 504 antidiscrim-
ination provisions should be able to present their
claims in the courts of general jurisdiction.  22.

D. Conclusion

In amending section 504, Congress made certain
that federal agencies would be liable for violations
of the statute. Congress's insertion of federal agen-
cies in the pre-existing clause subjecting others
to liability and its broad-brush remedy provision
indicate that Congress intended that there be no
distinction among section 504 defendants. The con-
gressional debates strongly reinforce this conclusion
by stressing again and again that Congress's purpose
in the section 504 amendment was to put the federal
government on an equal footing with everyone else so
that enforcement of the section would have no gaps.
Congress stressed that this footing included  a private
right of action for damages. We conclude, therefore,
that Doe does have a private right of action against
the Justice Department and the FBI and remand to
the district court for findings on the merits. 

IV. QUALIFIED IMMUNITY

The district court granted Agent Held's motion for
summary judgment, finding him to be entitled to

___________________(footnotes)

22 We can draw no conclusions from Williams v. United
States, 704 F.2d 1162 (9th Cir.1983), as to whether section 504
provides a private right of action against the government. for
money damages.  The plaintiffs in Williams, handicapped
individuals and organizations dedicated to improving the
quality of life for the handicapped, sought an injunction
directing the United States Post Office to issue the regulations
required by the 1978 amendment to section 504(a). The Post
Office's challenge to the plaintiffs' standing failed. Id. at 1163.
The defendant did not challenge the courts' jurisdiction to hear
the case, and the opinion does not address it.

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54a

qualified immunity on both the Fifth Amendment
privacy and the section 504 discrimination claims,
because he "did all that was reasonable under the
circumstances." The district court order stated,

Evaluating the[ ] undisputed facts, the Court finds
that everything Held did was reasonable. He had
some duty to respond to the information that was
presented to him and simply could not ignore it.
He requested further investigation and imposed a
requirement of confidentiality. He was confronted
with a situation where the contract with the
hospital was about to expire. In addition, he
sought, legal advice. He also sought advice from
the plaintiff and the hospital, but got little
cooperation. There is no genuine issue of ma-
terial fact that Held did all that was reasonable
under the circumstances and that he is entitled to
qualified  immunity.

Order re Motion by Defendant Held for Dismissal
and, in the Alternative, for Summary Judgment at 3
(May 17, 1990). The relevant question for qualified
immunity purposes, however, is not whether Agent
Held's actions were "reasonable" in some practical
sense, as the district court order suggests, but
whether a reasonable official in Agent Held's position
could have believed his actions were lawful" in light of
clearly established law.

Qualified immunity generally shields government
officials performing discretionary functions "as long
as their actions could reasonably have been thought
consistent with the rights they are. alleged to have
violated." Anderson v. Creighton, 483 U.S. 635, 638,
107 S. Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). "[W]hether
an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official
action generally turns on the `objective legal reason-

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55a

ableness' of the action, assessed in light of the legal
rules that were `clearly established' at the time it was
taken." Id. at 639, 107 S. Ct. at 3038 (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727,
2738-39, 73 L.Ed.2d 396 (1982)). "The contours of the
right must be sufficiently clear that a reasonable
official would understand that what he is doing
violates that right." Anderson, 483 U.S. at 640, 107
S. Ct. at 3039. The unlawfulness of the official action
in question "must be apparent," id.; where there is a
`legitimate question" as to the state of the law, it
cannot be said that the official's action violates
clearly established law. Mitchell v. Forsyth, 472 U.S.
511,535 n. 12,105 S.Ct. 2806,2820 n. 12,86 L.Ed.2d 411
(1985).

A. Fifth Amendment Privacy Claim

Doe claims that the FBI and Agent Held violated
his right to privacy by requesting that he reveal to
them whether he had AIDS, and by discontinuing
sending agents to him for physical examinations
when he refused to disclose that information. The
district court assumed for purposes of Held's motion
for summary judgment that Doe had identified a .
constitutionally protected privacy interest. It never-
theless found that Held's actions were reasonable and
thus protected by qualified immunity.

The constitution protects two kinds of privacy
interests. "One is the individual interest in avoiding
disclosure of personal matters, and another is the
interest in independence in making certain kinds of
important decisions." Whalen v. Roe, 429 U.S. 589,
599,97 S. Ct. 869,876,51 L.Ed.2d 64 (1977). At the time
of the challenged actions, it was clear that medical
information was encompassed within the first privacy
interest related to disclosure of personal matters.
United States v. Westinghouse Elec. Corp., 638 F.2d

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         56a

570, 577 (3rd Cir.1980) ("There can be no question that
an employee's medical records, which may contain
intimate facts of a-personal nature, are well within
the ambit of materials entitled to privacy pro-
tection."); Caesar v. Mountanos, 542 F.2d 1064, 1067
n. 9 (9th Cir.1976), cert. denied, 430 U.S. 954, 97 S. Ct.
1598, 51 L.Ed.2d 804 (1977) (right to privacy encom-
passes doctor-patient relationship).

While the Ninth Circuit had not ruled on the issue,
it likewise should have been plain  to a reasonable
government official that information regarding an
individual's HIV-status or AIDS diagnosis would fall
within the ambit of the privacy protection afforded
medical information, See Woods v. White, 689 F. Supp.
874, 875 (W.D.Wis.1988), aff'd 899 F.2d 17 (7th
Cir.1990) ("it would have been clear to a competent
public official in 1986 that individuals had a con-
stitutional right to privacy in information relating to
AIDS"); Glover v. Eastern Neb. Com. Office of
Retardation, 686 F.Supp. 243,250 (D. Neb.1988), aff'd
867 F.2d 461 (8th Cir.1989) (individuals have a
reasonable expectation of privacy in the personal
information their body fluids contain). Certainly it
was known by 1988 that an AIDS diagnosis was
extremely sensitive medical information. See Chalk
v. United States Dist. Court, 840 F.2d 701, 711 (9th
Cir.1988); Ray v. School Dist. of DeSoto County 666
F.Supp. 1524,1535 (M.D.Fla.1987).

It was also clear in 1988, however, that the privacy
protection afforded medical information is not ab-
solute; rather, it is a conditional right which may be
infringed upon a showing of proper governmental in-
terest. United States v. Westinghouse, 638 F.2d at
578 (citing illustrations from Whalen v. Roe, 429 U.S.
at 602 n. 29, 97 S. Ct. at 878 n. 29, of governmental
intrusions held to outweigh individual privacy

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          57a

interests in medical information, including statutory
reporting requirements relating to venereal disease,
child abuse, injuries caused by deadly weapons and
certification of fetal death); Caesar  v. Mountanos, 542
F.2d at 1068 (doctor-patient and therapist-client pri-
vacy rights conditional rather than absolute and
limited impairment may be allowed if properly
justified). To decide if the government may seek or
use private information, courts balance the govern-
ment's interest in having or using the information
against the individual's interest in denying access,
United States v. Westinghouse, 638 F.2d at 577-78.
The government may seek and use information
covered by the right to privacy if it can show that its
use of the information would advance a legitimate.
state interest and that its actions are narrowly
tailored to meet the legitimate interest. Thorne v.
City of El Segundo, 726 F.2d 459, 469-71 (9th
Cir.1983), cert. denied, 469 U.S. 979, 105 S. Ct. 380, 83
L.Ed.2d 315 (1984). The more sensitive the infor-
mation, the stronger the state's interest must be. Id.
at 469.

Doe concedes that the FBI has a legitimate
interest in protecting the health of its agents. He
argues, however, that this interest was in no way
implicated because his condition presented no risk
to his patients. Were we to reach the underlying
question of whether Dr. Doe's privacy rights were
violated, we would be required to "engage in the
delicate task of weighing competing interests."
United States v. Westinghouse, 638 F.2d at 578.

The factors which should be considered in deciding
whether an intrusion into an individual's privacy
is justified [include] the type of [information]
requested, . . . the potential for harm in any
subsequent nonconsensual disclosure, . . . the

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58a

adequacy of safeguards to prevent unauthorized
disclosure, the degree of need for access, and
whether there is an express statutory mandate,
articulated public policy, or other recognizable
public interest militating toward access.

Id. The balancing task would be rendered even more
difficult in this case since evaluating factors such as
"the degree of need for access" would require us to
consider matters on the forefront of medical
technology, in an area which is in a considerable state
of flux. 23.

___________________(footnotes)
                
23  Even within the constellation of issues related to AIDS,
all of which are relatively new and developing, the question of
transmissibility from health care providers to patients is
particularly unexplored, and views on the issue have been
shifting in the past year following the discovery that a Florida
dentist probably infected several of his patients. The American
Medical Association and American Dental Association have
recently reversed longstanding policy and declared that
health-care workers infected with HIV, the virus that causes
AIDS should disclose their infection to their patients before
performing invasive procedures.  Schulman, Stigma, Risk and
the Florida AIDS Dental Cases, L.A. Times, June 2, 1991, at 2,
col. 1. However, many other profession groups, including the
New York State Department of Health and the California
Medical Association object to the change in policy based on
transmission by a single practitioner.  Id.
  At the time of the  challenged actions, the Center for
Disease Control Guidelines  noted  that "[a]lthough transmission
of HIV from infected health-care workers to patients has
not been reported, transmission during invasive procedures
remains a possibility." Center for Disease Control, Recom-
mendation for Prevention of HIV Transmission in Health-Care
Settings, Morbidity & Mortality Weekly Report Supplement,
Aug. 21, 1987, at 5-6 [hereinafter CDC Guidelines]. See also
Estate of Behringer v. Medical Center at Princeton, 249
N.J.Super. 597, 592 A.2d 1251 (Law Div. 1991) (finding sub-
stantially justified a hospital's policy requiring HIV-infected
surgeon who performed invasive procedures on mucous

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59a

However, we need not undertake fully the difficult
balancing between Doe's right to confidentiality of
his AIDS diagnosis and the FBI's interest in limited
disclosure. Our inquiry in this case is limited to
whether it was objectively reasonable for Agent Held
to believe in 1988 that Doe's privacy interest was
outweighed by the potential for danger to his agents.
We note that Agent Held was aware that the physical
examinations involved arguably invasive procedures
(such as pelvic examinations and pap smears), that he
sought only limited disclosure to the relevant FBI  
decisionmakers, and that he intended to take steps
to safeguard the confidentiality of the information.
Under those circumstances, we find that a "legiti-
mate question" existed as to whether Held's conduct
violated Doe's privacy rights. We therefore affirm
the district court's holding that Agent Held was
entitled to qualified immunity on Doe's privacy claim.

B. Section 504 Claim

A person claiming discrimination under section 504
must show first that she is handicapped and second
that she is "otherwise qualified" for the job. 24. See
School Bd. v. Arline, 480 U.S. 273, 280-89, 107 S. Ct.

___________________(footnotes)

membranes to obtain informed consent of his patients or not
perform surgery and noting that "[w]hile the debate will rage
long into the future as to the quantifiable risk of HIV
transmission from doctor to patient, there is little disagreement
that a risk of transmission, however, small, does exist. . . . In
quantifying the risk, one must consider not only statistical
data, but the nature of the procedure being performed.")
24  Doe has alleged discrimination against a federal agency
that was not his employer. Any unlawful discrimination that
may have occurred, however, was based on the FBI's con-
clusion that Doe's handicap prevented him from doing his
job satisfactorily. We therefore must consider whether Doe
was otherwise qualified to do that job, i.e., routine physical
examinations.

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60a

1123, 1127-32, 94 L.Ed.2d 307 (1987); 29 U.S.C.
794(a). 25. Under Anderson v. Creighton, 483 U.S. at
640, 107 S. Ct. at 3039, Agent Held is entitled to
qualified immunity only if the "contours" of Doe's
rights against discrimination were not sufficiently
clear in light of pre-existing law so "that a reasonable
official would understand that what he is doing
violates that right."

An objectively reasonable agent should have un-
derstood that Doe was handicapped. In Arline, the
Supreme Court held that persons with contagious
diseases may be handicapped for purposes of section
504. Id. at 280-86, 107 S.Ct. at 1127-30.  Subsequent to
Arline, our circuit recognized that persons with
AIDS ("PWAs") have such a handicap. Chalk v.
United States Dist. Court., 840 F.2d at 704-05.  At the
time Held ceased sending FBI recruits and agents to
Doe and the clinic for physicals, the law was clear
that persons with AIDS were handicapped within the
meaning of the first element of section 504.

A person meets the second requirement, that she be
otherwise qualified for a job, if she is able to perform
"the essential functions of the job." Arline, 480 U.S.
at 287 n. 17, 107 S. Ct. at 1131 n. 17; 29 C.F.R.  32.3; 45
C.F.R.  84.3(k)(1). Under Arline, a person may not
be otherwise qualified for a job if, in performing the
job, she "expos[es] others to significant health and
safety risks." 480 U.S. at 287, 107 S. Ct. at 1131.
Specifically, a  person who poses "a significant risk of
communicating an infectious disease to others in the
workplace is not otherwise qualified if reasonable
      
___________________(footnotes)

25 A handicapped person not otherwise qualified still
receives section 504 protection from discrimination if a
reasonable accommodation by the discriminator will enable the
employee to perform the job functions. Id. at 287 n. 17, 107
S. Ct. at 1131 n. 17.

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   61a

accommodation will not eliminate that risk." Id. at
n. 16. According to the Supreme Court, resolution
of the otherwise-qualified question in most cases
will require individualized inquiry and appropriate
fact findings. Id. at 287, 107 S. Ct. at 113.1. "Such an
inquiry is essential if  504 is to achieve its goal
of protecting handicapped individuals from depriva-
tions based on prejudice, stereotypes, or unfounded
fear . . . . " Id. The inquiry should include

[findings of] facts, based on reasonable medical
judgments given the state of medical knowledge,
about (a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long
is the carrier infectious), (c) the severity of the
risk (what is the. potential harm to third parties)
and (d) the probabilities the disease will be
transmitted and will cause varying degrees of
harm.

Id. at 288, 107 S. Ct. at 1131 (quoting Amicus Curiae
Brief of the American Medical Association at 19). 26.
"In making these findings [of fact]," the Court held,
"courts should normally defer to the reasonable
medical judgments of public health officials." Id.

As with the privacy claim, resolution of the
ultimate question of whether Doe was `{otherwise
qualified" will require careful consideration of a
complex issue in an area of medicine which is in
considerable flux: Whether Doe, given the specific
nature and manifestation of his AIDS, the type of
procedures he was performing, the precautions he
followed, and the facility's monitoring of those

___________________(footnotes)
                                          
26  In Chalk, 840 F.2d at 704-08, our circuit applied pre-
cisely this framework in reviewing and reversing a district
court's denial of a preliminary injunction reinstating a teacher
with AIDS who had been removed from the classroom.

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         62a           

precautions, posed significant (if any) risk to patients.
Once again, however, the ultimate question was not
resolved by the district court, and is not before us
at this juncture. We are presented only with the
question of whether a reasonable official in Agent
Held's position would have understood that his ac-
tions violated clearly established law.

Under Arline and Chalk, a reasonable official
would have known that he could not discriminate
against a PWA if the PWA were otherwise qualified
to perform her job. The official would also have
known that determining whether the PWA was
otherwise qualified would require a reasoned medical
judgment about the risk of contagion and the
conditions under which contagion would occur,
including the precautions under which contagion
would not occur. Dr. Doe argues that Agent Held is
not entitled to qualified immunity because he un-
dertook no inquiry of a medical nature. Rather, he
consulted only with nonmedical personnel-the FBI's
Assistant Director of Administrative Services and
the FBI's counsel. Doe and the hospital offered the
only medical opinions that Held received; they
asserted that Doe posed no risk to FBI patients
because he conformed his conduct to the CDC
Guidelines.

Agent Held asserts that his efforts to make a
reasonable investigation were stymied by Doe's
refusal to provide information regarding whether he
had AIDS and by the need to maintain confi-
dentiality. 27. Arguably, Agent Held should simply

___________________(footnotes)

27  We find the latter argument regarding confidentiality
unpersuasive.  A confidential telephone call to the CDC,
Surgeon General or other public health official, in which Dr.
Doe's identity need not have been disclosed, could have yielded

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63a

have assumed that Dr. Doe had AIDS and proceeded
to gather information from health officials on that
basis. That presupposes, however, that AIDS mani-
fests itself in the same manner in all PWAs, and that
the risk of transmission is the same in all cases and
under all conditions. As a medical matter, that is not
accurate; as a legal matter, reliance on such pre-
sumptions conflicts with Arline's and Chalk's man-
date that an individualized inquiry be undertaken. 28

It is true that Agent Held never asked Dr. Doe
more specific questions about the nature of his
symptoms, if any, and that Doe might have been
willing to provide answers-to such questions even
though he refused to answer the initial inquiry
regarding whether he had AIDS. Undoubtedly the
better course would have been for Agent Held to have
approached medical professionals to obtain infor-
mation about the transmissibility of AIDS, and then
to have reapproached Dr. Doe with more specific and
relevant questions. regarding his condition, his ad-
herence to the CDC precautions, and any provisions
by the facility for monitoring such adherence.
Likewise, it would have been better for Dr. Doe,
a medical professional, candidly to have provided

___________________(footnotes)

substantial information to assist Agent Held in his decision-
making, without any risk of a breach of confidentiality.
    28 For example, at the time of the challenged actions, the
CDC Guidelines recommended that "[h]ealth-care workers who
have exudative lesions or weeping dermatitis should refrain
from all direct patient care . . . until the condition resolves,"
CDC Guidelines at 6, indicating that health care workers with
such conditions pose a different risk of transmission than those
without. Had Held presumed the worst scenario in order to
make his risk assessment, i.e., that Doe had exudative lesions,
Doe might well have complained of the lack of an indi-
vidualized inquiry into his condition and how it affected his
qualifications to perform the examinations.

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64a

information about his exact medical condition, his
adherence to CDC guidelines, and the facility's
monitoring of his compliance with those guidelines.
We cannot say that at the time Agent Held took the
challenged actions in 1988, he reasonably should have
known that terminating the physical examinations
unless Dr. Doe responded to the FBI's inquiry
regarding his AIDS status was a violation of Dr.
Doe's clearly established rights under section 504. 29.
Accordingly, we affirm the district court's holding
that Agent Held was entitled to qualified immunity on
Dr. Doe's section 504 claim.

CONCLUSION.

We find the claims for injunctive relief moot and
vacate the district court's opinion with respect to
them. The district court and this court, rather than
the Court of Claims, have jurisdiction over the
damage claims. We hold that Congress waived sov-
ereign immunity and provided a private right of action
for damages for discrimination claims against the
United States under section 504 of the Rehabili-
tation Act. We reverse the district court's contrary
judgment and remand for findings on the merits.
Finally, we affirm the district court's summary

___________________(footnotes)

29 We do not hold that Held's actions were not a violation
of section 504. We make no determination as to whether Dr.
Doe was otherwise qualified to perform routine physical exami-
nations. We also make no determination as to whether the FBI
discriminated against Dr. Doe because he had AIDS, or
whether the FBI discriminated against Dr. Doe because he
refused to disclose information necessary to determine if he
was "otherwise qualified" for his job. We hold only that a
reasonable official could have believed Agent Held's actions to
be lawful since there was a "legitimate question" as to whether
they violated Doe's rights under section 504.

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65a

judgment in favor of Agent Held on the ground. of
qualified immunity.

VACATED in part, REVERSED in part,
AFFIRMED in part, and REMANDED.

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66a

APPENDIX D

UNITED STATES DISTRICT COURT  FOR  THE
NORTHERN DISTRICT OF CALIFORNIA

    No. C-88-3820-CAL

JOHN DOE, PLAINTIFF

v.  

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
       DEFENDANTS

[Filed Aug. 25, 1989]

OPINION :

LEGGE, District Judge.

This case was tried to the court, sitting without a
jury, and was submitted to the court for decision. The
court has heard and reviewed the. testimony of the
witnesses, and has reviewed the exhibits admitted
into evidence, the" record of the case, the briefs filed
by the parties, the arguments of counsel, and the
applicable authorities. This opinion constitutes the
court's findings of fact and conclusions of law, as
required by Rule 52 of the Federal Rules of Civil
Procedure.

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67a

I.

The complaint asserts two claims. The first is
under 29 U.S.C.  794, a part of the Rehabilitation
Act. The cases interpreting 29 U.S.C. 794 generally
refer to it by its public law section number, section
504; for purposes of consistency so will this opinion.

Plaintiff also alleges that the defendants' use of
private information about him was a violation of his
privacy rights under the due process clause of the
Fifth Amendment to the United States Constitution.
Plaintiff dismissed his claim for damages under the
constitutional claim, so the only relief requested
under that count is equitable relief.

This court, has jurisdiction over the action by
virtue of 28 U.S.C. 1331 and  1391(b).

II.

Plaintiff is a medical doctor. He is engaged in the
private practice of medicine as a doctor employed by,
and the director of, a health care facility. The health
care facility is controlled by a hospital. 1.  Plaintiff
receives a salary from the facility, and his earnings
are in part based upon the earnings of the facility
from the patients whom plaintiff treats.

From approximately December 1984 to August
1988, defendants sent all persons who were applicants
for employment by the Federal Bureau of Investi-
gation to the facility for pre-employment physical
examinations, and they sent all employees of the
Bureau to the facility for annual and promotion
    
___________________(footnotes)

  1 For reasons of privacy, plaintiff is referred to as "Dr.
Doe," the health care facility is called "the facility," and the
hospital is called "the hospital."

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68a

physical examinations. Defendants paid the facility a
fee for each of the examinations. Virtually all of
those physical examinations were conducted by
plaintiff.

Plaintiff has contracted acquired immune defi-
ciency syndrome ("AIDS"). On or about August 15,
1988, someone advised the Bureau that plaintiff had
Kaposi's Sarcoma, an AIDS-related illness. Defen-
dants attempted to verify the information and the
risks which might exist from plaintiff's performing
the physical examinations of the Bureau's employees
and applicants. Plaintiff, the facility, and the hospital
did not directly confirm to defendants that plaintiff
had AIDS. They instead informed defendants that
there was no medical risk from Dr. Doe's performing
the physicals, and they offered education on the appro-
priate medical standards. Defendants did not consider
the responses of plaintiff, the facility, or the hospital
to be adequate. On or about August 23, 1988, defen-
dants ceased sending employees and applicants to the
facility for physical examinations because of defen-
dants' concern about plaintiff's illness.

Defendants did not resume sending employees and
applicants to the facility until after this court issued
a preliminary injunction. `Thereafter, defendants au-
thorized three health care organizations, one of which
is the facility, to do the physical examinations of the
Bureau's employees and applicants. Since defendants
began using that procedure, the facility has received
fewer patients for physical examinations than it did
prior to August 15, 1988.    

         III.

The threshold issue is whether plaintiff has a
private right of action in a United States District

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69a

Court against these federal defendants under section
504. The section provides in pertinent part as follows:

  No otherwise  qualified  individual  with
handicaps in the United States, as defined in
section 706(8) of this title, shall, solely by reason
of her or 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 or
under any program or activity conducted by any
Executive agency or by the United States Postal
Service.

It is settled in this circuit that AIDS is a
"handicap" under section 504. Chalk v. United States
District Court, 840 F.2d 701 (9th Cir.1988); Thomas v.
Atascadero, 662 F.Supp. 376 (C.D.Cal.1987). For pur-
poses of this analysis, the court will also assume that
plaintiff is an "otherwise qualified individual" within
the meaning of section 504?

More precisely, the question is whether such a
plaintiff has a private right of action under section
504 in this court against a government agency and
its officials who purchase services from plaintiff's
employers

Neither the statute nor the legislative history
answer the question. And in spite of an extensive
volume of litigation under section 504 and related
sections, no case directly answers the question.

___________________(footnotes)

2  The issue of "otherwise qualified" was the subject of
extensive evidence at trial, and factual findings on that issue
would be necessary if there is a private right of action.

3  The evidence is clear that plaintiff suffered a direct
loss of income from defendants' reduced use of the facility.

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70a

The United States Supreme Court and the courts
of this circuit recognize a private right of action
under section 504 against the entity which is the
recipient of federal funds. School Board v. Arline,
480 U.S. 273, 107 S. Ct. 1123, 94 L.Ed.2d 307 (1987);
Consolidated Rail Corp. v. Darrone, 465 U.S. 624,
104 S. Ct. 1248,79 L.Ed.2d 568 (1984); Chalk v. United
States District Court, 840 F.2d 701 (9th Cir.1988);
Greater Los Angeles Council on Deafness v. Zolin,
812 F.2d 1103 (9th Cir.1987); Kling v. County of Los
Angeles, 633 F.2d 876 (9th Cir.1980); Thomas v.
Atascadero, 662 F.Supp. 376 (C.D. Cal. 1987).  But
those cases do not answer the question of whether
there is a cause of action against the federal agency
which provides the funds. In the present case, it is not
the recipient of the finds which allegedly discrimi-
nated against plaintiff, but the federal agency itself.

A private right of action exists against a gov-
ernment agency by an employee of the agency, or an
applicant for employment by the agency. Johnston v.
Home, 875 F.2d 1415 (9th Cir.1989); Boyd v. U.S.
Postal Service, 752 F.2d 410 (9th Cir.1985); Sisson v.
Helms, 751 F.2d 991 (9th Cir.), cert. denied, 474 U.S.
846, 106 S. Ct. 137, 88 L.Ed.2d 113 (1985). However,
plaintiff here is not an employee of the federal agency.
Nor does plaintiff claim that his status as an em-
ployee of the facility makes him an employee of the
agency. And the right of an employee to sue a federal
agency has most recently been limited to section 501,
rather than section 504, of the Rehabilitation Act.
Johnston v. Horne, 875 F.2d 1415, at 1420.

The Ninth Circuit in Williams v. United States,
704 F.2d 1162 (9th Cir.1983), reversed the grant of an
injunction against a federal agency under section 504,
but not on the issue of a private right of action; at
1163-4. The court said that the plaintiff classes and

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71a

organizations had standing to assert their claims. It
did not address the issue of a private right of action,
and the suit was to compel the agency to issue
regulations and was not one for damages.

Several cases have prohibited suits against federal
agencies under the statute, albeit in situations not
directly controlling the present case. In Marlow v.
U.S. Department of Education, 820 F.2d 581 (2nd
Cir.1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 780,
98 L.Ed.2d 866 (1988), a teacher was denied a cause      
of action against the Department of Education on re-
view of an administrative finding. In Salvadore v.
Bennett, 800 F.2d 97 (7th Cir. 1986), a student was
denied a cause of action against the Department of
Education, but the decision turned on an analysis of
Title VI and Title VII procedures. In NAACP v.
Medical Center, 599 F.2d 1247 (3rd Cir.1979), a
plaintiff class sued a medical center and government
officials alleging that a planned relocation of the
medical facility violated section 601 of Title VI and
section 504 of the. Rehabilitation Act. The Third
Circuit held that plaintiffs had a private right of
action against the medical center, as a recipient of
federal funds, but did not have a private right of action
against the federal agency itself. Id. at 1254-55 and n.
27 and 1258-59 and n. 49. In Community Brotherhood
of Lynn, Inc. v. Lynn Redevelopment Authority, 523
F. Supp. 779 (D. Mass.1981), a cause of action based on
Title VI was not permitted against federal defendants
(at 780). Those cases involve some points of distinc-
tion with the present case. For example, Title VI
cases are not directly controlling because of certain
differences in the statutory provisions, However, the
legislative history indicates that section 504 was      
patterned after, and is almost identical to, the
antidiscrimination language of section 601 in Title

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72a

VI. S.Rep. No. 93-1297, 93rd Cong., 2d Sess. 39-40,
reprinted in 4 U.S. Code Cong. & Admin. News, pp.
6373,6390 (1974).  In addition, section 504 incorporates
Title VI procedures as permissible remedies. The
above cases as a whole do indicate a reluctance to
permit private rights of action against federal
agencies unless the congressional intention to do so
is clear.

The most recent case is Cousins v. Secretary of
Transportation, 880 F.2d 603 (1st Cir.1989).   Initially,
a panel of the First Circuit recognized a right of
action against a government agency under section 504
with respect to its adoption of regulations. Cousins
v. Secretary of U.S. Department of Transportation,
857 F.2d 37, 4245 (1st Cir.1988). However, that
decision was withdrawn, and after an en banc hearing
the First Circuit affirmed the District Court's
dismissal of the section 504 suit.  880 F.2d at 612. The
court held that plaintiff's remedy is under the
Administrative Procedures Act:
. . . nor is there any indication that it is meant to
imply that plaintiff can sue federal agencies
directly under 504, rather than within the
confines of the APA.

Id. at 607.

In sum, no case has held that a section 504 cause of
action can be maintained against a federal agency by
an employee of a supplier. And the cases brought
against federal agencies cited above, interpreting at
least analogous provisions, have ruled against such a
cause of action.

The agency's regulations must also be considered.
Section 504 required the promulgation of regulations,
and required that the regulations be submitted to

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        73a

Congress and not take affect earlier than thirty days
after they were submitted.  The Department of
Justice did so, and those regulations are now
contained in 28 Code of Federal Regulations.

Part 41 of those regulations implements section 504
in so far as it applies to "any program or activity
receiving Federal financial assistance," Section
41.3(e) defines "Federal financial assistance," and
expressly states that it does not include procurement
contracts. This definition states the agency's intent
to preclude the application of section 504 to such a
relationship as the one here between the agency and
the facility which employs plaintiff.

Part 39 of the regulations enforces the portion of
section 504 pertaining to "any program or activity
conducted by" the federal agency. Section 39.130 of
the regulations appears to prohibit the handicap
discrimination which is alleged in this case; see
39.130(b)(3) and (b)(5). The latter section is partic-
ularly important, because it expressly applies to
procurement contracts:

  The agency, in the selection of procurement
contractors, may not use criteria that subject
qualified handicapped persons to discrimination on
the basis of handicap.

However, Part 39 does not provide for a civil right
of action against the agency. The compliance pro-
cedures are set forth in section 39.170, and they are
administrative remedies before the agency.  Sub-
section (a) says that "this section applies to all
allegations of discrimination on the basis of handicap
in programs or activities conducted by the agency."

The editorial notes to this section of the
regulations make it clear that the intent of the

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        74a

regulations is to provide for an administrative
remedy, and not for a private right of action in court:

  "Section  39.170 establishes a detailed complaint
processing and review procedure for resolving
allegations of discrimination in violation of
section 504 in the Department of Justice's pro-
grams and activities. The 1978 amendments to
section 504 failed to provide a specific statutory
remedy for violations of section 504 and federally
conducted programs.  The amendment's legis-
lative history suggesting parallelism between
section 504 for federally conducted and federally
assisted programs is unhelpful in this area
because the fund determination mechanism used
in section 504 federally assisted regulations
depends on the legal relationship between a
Federal funding agency and the recipients to
which the Federal funding is extended.  The
Department has decided that the most effective
and appropriate manner in which to enforce
section 504 in the federally conducted area is
through an equitable complaint resolution pro-
cess.  Section 39.170 establishes this process."

28 C.F.R. 39.170 Editorial Note at 402 (1988)
(emphasis added).

It is thus clear from the regulations, which were
submitted to Congress before they became effective,
that section 504 does not give plaintiff a private right
of action against the agency under "any program or
activity receiving Federal financial assistance,"'
because they do not include procurement arrange-
ments.  And plaintiff's remedy for a section 504

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       75a

violation under "any program or activity conducted
by" the agency is limited to administrative remedies.  4.

The court therefore concludes that plaintiff does
not have a private right of action against these
defendants under section 504, and he must pursue his
administrative remedies before the Department of
Justice. 5.

         Iv.

Plaintiff's second claim is an alleged violation of
his right of privacy under the due process clause of
the Fifth Amendment to the Constitution. Plaintiff's
claim in this regard is twofold:  that defendants
disclosed plaintiff's medical information to others,
and that defendants used the medical information in
the decisions which they made. Plaintiff seeks only
injunctive relief on this claim.

The court finds and concludes that defendants did
not violate plaintiff's right to privacy. Defendants'
actions were in the exercise of their legitimate
governmental responsibilities, and were reasonable
under the circumstances with the information known
to them at that time.

___________________(footnotes)

4  The court recognizes that at the time of granting
plaintiff a preliminary injunction it did not believe that
plaintiff was limited to his administrative remedies. However,
after now having the opportunity to review the statutory,
regulatory, and case history in detail, the court believes that
its conclusion on the motion for preliminary injunction was
incorrect.
5  For purposes of the period of limitations defined in 28
C.F.R. 39.170(d)(3), the court deems the complaint to have
been filed on the date the complaint in this action was served
on defendants.

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76a

Because defendants compel their employees and
applicants to get physical examinations, and directed
all of those employees and applicants to the facility,
defendants had a duty to be concerned for the health of
their employees and applicants. Even though defen-
dants' concerns may have been dispelled by better
medical information, defendants' steps at the time
were reasonable ones, in supposed protection of their
employees and applicants and of their own potential
liability. This was particularly true since neither
plaintiff, the facility, nor the hospital made full
disclosures to defendants about the nature and extent
of plaintiff's disability, but instead simply assured
defendants that there was no medical risk and offered
further general education.

When defendants learned the information about
plaintiff, they were concerned about plaintiff's pri-
vacy interests and took affirmative steps to assure
his privacy, even at the risk of incurring the later
displeasure of their employees. Defendants first
discussed their information with the clinical director
of the facility. That was an appropriate step, because
the clinical director was defendants' contact with the
facility. Further discussions within the facility and
the hospital were initiated by the clinical director and
by plaintiff. Defendants made no other disclosures of
the information about plaintiff, other than to those
within the Bureau and the Department of Justice who
were involved in the decision making process (that is,
had a "need to know"). Defendants also sought legal
and medical advice within the Department of Justice.
The matter first received public attention when this
lawsuit was filed, and the public press printed stories
about it.

While defendants' concerns about the risk to their
applicants and employees may now be medically

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77a

unfounded, defendants had the obligation to obtain
additional information and take appropriate steps
based upon the information which was known to them
at that time.  The use of the information about
plaintiff, and the limited disclosures that were made
by defendants, were legitimate exercises of govern-
mental responsibilities which outweigh plaintiff's in-
terest in the privacy of the information. See Detroit
Edison Co. v. NLRB, 440 U.S. 301, 313-17, 99 S. Ct.
1123, 1129-32, 59 L.Ed.2d 333 (1979); United States v.
Westinghouse Electric Corporation, 638 F.2d 570,578
(3rd Cir.1980).

The court therefore concludes that plaintiff has not
demonstrated an invasion of plaintiff's constitutional-
ly protected privacy interests.

V.

IT IS THEREFORE ORDERED that judgment be
entered in favor of defendants and against plaintiff.

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