HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/DO-ATTYG.ASC

Text File | 1993-01-14 | 19KB | 417 lines

/*  This case is reported in 723 F.Supp. 452 (N.D. Cal. 1989).
This case involves a physician's claim against the government who
allegedly refused to continue to send him FBI agents for
examinations because he would not reveal whether or not he had
HIV. Note that the appeals court modified this decision, and that
this case is contained in this service. */

John DOE, Plaintiff,

v.

ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants.



United States District Court, N.D. California.



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 find
ings of fact and conclusions of law, as required by Rule 52 of
the Federal Rules of Civil Procedure.



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.



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. (footnote 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 Investigation to the facility for pre-employment
physical examinations, and they sent all employees of the Bureau
to the facility for annual and promotion physical examination's.
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 deficiency syndrome
("AIDS").   On  or about August 15, 1988, someone advised the
Bureau that plaintiff had Kaposi's Sarcoma, an AIDS-related
illness. Defendants 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 defen
dants that there was no medical risk from Dr. Doe's performing
the physicals, and they offered education on the appropriate
medical standards.  Defendants did not consider the responses of
plaintiff, the facility, or the hospital to be adequate.  On or
about August 23,  1988, defendants ceased sending employees and
applicants to the facility for physical examinations because of
defendants' 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 authorized 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.

[1]  The  threshold  issue  is  whether plaintiff has a private
right of action in a United States District 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 purposes of this analysis, the court will
also assume that plaintiff is an "otherwise qualified individual"
within the meaning of section 504. (footnote 2)

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 employer. (footnote 3)

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.

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 funds which allegedly discriminated
against plaintiff, but the federal agency itself.

[2]  A private right of action exists against a government agency
by an employee of the agency, or an applicant for employment by
the agency. Johnston v. Horne, 875 F.2d 1415 (9th Cir.1989); Boyd
v. US. 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 employee of the facility makes him an employee
of the agency. And the right of an employee to sue a federal
agency bas 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 11634.  The court said that the
plaintiff classes and 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. US 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 review 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. Medi
cal 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 distinction with the
present case.  For example, Title VI cases are not directly
controlling because of certain differences in the statutory
provisions. How-ever, the legislative history indicates that
section 504 was patterned after, and is almost identical to, the
antidiscrimination language of section 601 in Title VI. S.Rep.
No. 9~1297, 93rd Cong., 2d Sess. 3940, 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 US Department of Transportation, 857 F.2d
37, 42-45 (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 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 fi
nancial 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 particularly
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 procedures are set forth in
section 39.170, and they are administrative remedies before the
agency.  Subsection (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 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 programs
and activities.  The 1978 amendments to section 504 failed to
provide a specific statutory remedy for violations of section 504
and federally conducted pro grams. The amendment's legislative
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 process. Section 39.170
establishes this process."

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

[3]  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 pro gram or activity receiving Federal financial
assistance," because they do not include procurement
arrangements.  And plain-tiff's remedy for a section 504
violation under "any program or activity conducted by" the agency
is limited to administrative remedies. (footnote 4)



[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. (footnote 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.

[5]  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.

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
defendants' 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 privacy 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 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 governmental responsibilities which outweigh
plaintiff's interest 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 constitutionally protected privacy
interests.



V.

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



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."



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.

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. 39.17o(d)(3), the court deems the complaint to have been
filed on the date the complaint in this action was served on
defendants.