Full opinion text
ALVIN B. RUBIN, Circuit Judge: The issue before us can be simply stated: section 503 of the Rehabilitation Act of 1973 requires every contract in excess of $2,500 with any federal department to “contain a provision requiring that, in employing persons to carry out” the contract, the contracting parties “shall take affirmative action to employ and advance in employment qualified handicapped individuals.” 29 U.S.C. § 793. It also provides that any handicapped individual who believes any contractor has failed to comply with this agreement may file a complaint with the Department of Labor. Does this statute also impliedly authorize such an individual to file a civil action in a United States District Court seeking damages for the contractor’s failure? Because each of these cases comes to us on appeal from a judgment of dismissal for failure to state a claim, we assume that, as alleged in the complaints, each of the plaintiffs is a qualified handicapped person and each was discharged because of handicaps. This merely means our inquiry is warranted; it is not decisive, for the heart of the problem is whether Congress intended to benefit the qualified handicapped by giving them a particular right: the right to sue in federal court for relief from the discriminatory conduct of federal contractors. The Rehabilitation Act of 1973 was adopted after presidential vetoes had stymied two earlier attempts to enhance federal aid to handicapped persons. Most of the controversy surrounding the bill and its predecessors focused on wide ranging programs, to be federally funded, designed to aid handicapped persons in assuming a full role in society, and on the appropriations that would be required if the measure were adopted. Consequently, Congress devoted little of its discussion to its intentions regarding section 503. See Sen.Rep.No. 93-318, 93d Cong., 1st Sess., pp. 12-16 (1973), U.S.Code Cong. & Admin.News, p. 2076. The statute’s muteness, therefore, is not given meaning by voices in the legislative background. The plaintiffs ask us to find not only significance in the silence, but also the specific message of intent to bestow a private cause of action. Federal courts are not common law courts of general jurisdiction. Limited by the express language of the Constitution, and the functional role it allots to the judiciary, we can recognize the cause of action only if it has been created by statute. See Cannon v. University of Chicago, 1979, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560, 587 (Rehnquist, J., concurring). Therefore, our answer to the question in this case depends, the authorities and the parties all agree, on whether Congress intended, when this statute was enacted, to create such a method of enforcing the statutory policy. Because Congress did not speak to us unequivocally, either in the statute or in some other authoritative fashion, we must seek an answer in the history of enactment of the statute and in analogies. to what the courts have derived from other statutes. Having done so, in a manner we describe below, we have concluded that Congress has not authorized a private cause of action. I. In two cases decided within the last five years, the Supreme Court, summarizing its reflections in other prior cases, has told us how to seek intimations sufficient to read statutory silence as affirmative or negative. Cort v. Ash, 1975, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26; Cannon v. University of Chicago, 1979, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560. We are directed to consider four factors; but we are warned, as we should surely already know, that mechanical adherence to any multiple-part test is injurious and negates the very judgmental wisdom that is sought from courts. See id. at 717, 99 S.Ct. at 1968, 60 L.Ed.2d at 587 (Rehnquist, J., concurring). Our obligation is to determine, to the best of our abilities, whether Congress intended to create the private right of action plaintiffs seek to bring in federal court; even were we satisfied that some of the Cort factors supported implying such a right, we could not do so if unconvinced that Congress intended such a remedy. See Transamerica Mortgage Advisors, Inc. v. Lewis, 1979,-U.S.-, 100 S.Ct. 242, 62 L.Ed.2d 146; Touche Ross & Co. v. Redington, 1979, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82. A. Was the plaintiff one of the class for whose especial benefit the statute was enacted? The statute was intended at the least to direct federal agencies to use their purchasing power so as to improve employment opportunities for “qualified handicapped persons.” But it would be facile simply to conclude that, because Congress had handicapped persons in mind when it enacted section 503 and mentioned them in the statute, the first Cort factor is satisfied. What Cort demands is not that we determine whether Congress intended to aid a particular class of persons, but that we ascertain whether Congress intended to “create a federal right in favor of the plaintiff.” Cort v. Ash, 1975, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36. To this end, “the right— or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action.” Cannon v. University of Chicago, 1979, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 1954 n. 13, 60 L.Ed.2d 560, 571 n. 13. The words of the statute, which are remarkably plain and jargon-free, do not indicate that it is aimed at overcoming those barriers to the employment of a qualified handicapped person that can be surmounted only by costly action or major programs. What is required of the employer could be as simple as providing a ramp for wheelchairs over a stairway or as complex as installing altered machinery, or it may, of course, be that apparently simple but much more difficult problem of eliminating prejudice, a disease so deep rooted that it caused Clemenceau to say, “a citizen is sometimes called upon to make a greater sacrifice for his country than the sacrifices of his life, namely, to sacrifice his prejudices.” The statutory language does not imply on its face any intention to endow the handicapped with a direct suit after suffering handicap-based discrimination. It merely requires those who give out federal contracts to obligate contractors to take affirmative steps to employ and advance handicapped persons. The duty it directly creates is imposed upon federal departments and agencies, not upon contractors. The statute does not confer a clearly defined right on the benefitted class. There is no intimation that every qualified handicapped person has a right to affirmative action in his particular case; what is apparent is that those who control federal contracts have a duty to make and enforce contracts containing the requisite clause. The handicapped may have simply the right to petition those who administer federal contracts to perform their duty. The language of the statute is thus unlike those statutes that unequivocally focus on the benefitted class in their right — or duty-creating language. See, e. g., id., 441 U.S. at 681 n. 3, 99 S.Ct. at 1950 n. 3, 60 L.Ed.2d at 567 n. 3 (“No person . . . shall be excluded . . . .” 20 U.S.C. § 1681); Allen v. State Board of Elections, 393 U.S. 544, 554-55, 89 S.Ct. 817, 825-26, 22 L.Ed.2d 1, 11. (“No person shall be denied . . .”). It is, however, not unlike language that the Cannon court indicated would be sterile ground for implying a cause of action: “[t]here would be far less reason to infer a private remedy in favor of individual persons if Congress . . . had written [the statute] simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to . institutions engaged in discriminatory practices.” Cannon v. University of Chicago, 1979, 441 U.S. 677, 690-93 and n. 14, 99 S.Ct. 1946,1954-55 and n. 14, 60 L.Ed.2d 560, 571-573 and n. 14 (footnote omitted). Here, that is precisely what Congress did. The duty-creating phrases are not conclusive, but they make inference of a private cause of action more difficult. When a statute is structured as a directive to federal agencies and does not clearly define a right inhering in individual members of a benefitted class, there must be persuasive evidence in the legislative history that Congress intended to confer such a right before the courts are justified in concluding that one exists. See Transamerica Mortgage Advisors, Inc. v. Lewis, 1979,-U.S. -, 100 S.Ct. 242, 62 L.Ed.2d 146. B. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? In trying to learn Congressional intent by examining the legislative history of a statute, we look to the purpose the original enactment served, the discussion of statutory meaning in committee reports, the effect of amendments — whether accepted or rejected — and the remarks in debate preceding passage. The scant discussion of section 503 that occurred during the process of enactment of the Rehabilitation Act of 1973 does not indicate that Congress contemplated a private right of action for handicapped persons. The only explicit statements of Congressional intent are found in connection with later legislation, corollary to section 503. We are urged to find meaning in section 503 as a result of later statutes and of remarks by individual Congressmen made at a later time. The retroactive wisdom provided by the subsequent speech of a member of Congress stating that yesterday we meant something that we did not say is an ephemeral guide to history. Though even God cannot alter the past, historians can, compare Samuel Butler, Creation Revisited, c. 14, and other mortals are not free from the temptation to endow yesterday with the wisdom found today. What happened after a statute was enacted may be history and it may come from members of the Congress, but it is not part of the legislative history of the original enactment. Later statutes may provide guidance. The Supreme Court has on occasion referred to the language of a later statutory amendment, whether independent or amendatory, in interpreting an earlier one. When thus utilized, the role of the later statute is not primarily historical: it repeals, modifies, adds to or subtracts from the earlier one by its own force. Its enactment stems from Congressional legislative power to repeal or alter what it has done. When such a statute has been adopted, the question becomes one of interpreting the two enactments together. The two amendments to Title Y that have been adopted leave the question of individual right to sue almost as murky as did the original text. In 1974 Congress amended the newly enacted Rehabilitation Act. One of the purposes and results of the amendment was to clarify the definition of “handicapped person” under sections 503 and 504 of the Act. Although the adopted amendment did not affect the substance of either section, the legislators utilized the legislative process to express their views on the intended scope of those sections as originally adopted. The most extensive discussions of the two sections appear in the Senate Conference Committee Report on the amendments. Sen.Conf.Rep.No. 93-1270, 93d Cong., 2d Sess. 25-28 (1974). Even then, little attention was directed to enforcement of section 503, but section 504 enforcement was discussed in detail. The Report equated section 504 to section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and section 901 of the Education Amendments of 1972, 20 U.S.C. § 1681. Like those sections, the conferees stated, section 504 is to be enforced by administrative and judicial means, including a private judicial remedy for those harmed by violations of the section. The Committee failed to make similarly explicit any understanding that section 503 would entail a private judicial remedy. It did, however, note the intent that “sections 503 and 504 be administered in such a manner than a consistent, uniform, and effective federal approach to discrimination against handicapped persons would result.” Sen.Conf.Rep.No. 93-1270, supra, at 27. This might prompt the conclusion that a private judicial remedy was intended under both sections. But the occasional mentions of section 503 contain no direct statement of an intention to create a private cause of action. Even as straws in the wind, these statements indicate cross currents rather than a stout breeze from one direction. The appellants find their strongest argument in an implication they seek to draw from enactment in 1978 of an amendment to the Rehabilitation Act of 1973 that added a new section providing for attorney’s fees in any action “to enforce or charge a violation of a provision of this subchapter.” This undoubtedly authorizes an attorney’s fee in actions brought to enforce section 503; but it does not necessarily follow that the amendment is intended to authorize private individuals to file civil actions under that section. We are aware that the Senate report states: “the availability of attorney’s fees should assist in vindicating private rights of action in the case of section 502 and 503 cases, as well as those arising under section 501 and 504,” S.Rep.No. 95-890, 95th Cong.2d Sess. 19 (1978), and that the House report contains similar language. It may, therefore, fairly be said that the 1978 committees of both Houses assumed that a private cause of action had somehow been created in the past. The existence of such a postulate is neither logical nor legislative basis to conclude that the 1973 statute did in fact create the action; and, if the 1973 statute did not authorize the cause of action, the 1978 statute evidences no intention to create one. An assumption is not a law. A statement indicating that section 503 creates a private cause of action was made by a Senate Committee in 1979. “The Committee” in 1978 or 1979 is not the committee that recommended the legislation enacted in 1974. Had this statement been made in the report of the committee that recommended the legislation, it would indeed be part of the statutory history. When uttered five years later it is mere commentary. Moreover, a committee is not the Congress. It cannot create a Congressional intent that did not exist, or amend a statute by a report. Cf. In re Beef Industry Antitrust Litigation, 5 Cir. 1979, 589 F.2d 786 (opinion of two Congressmen on applicability of House of Representative’s rule is not binding on court; rather, court must evaluate rule with attention to practice of entire Congress). The legislative history of section 503 is void of explanatory statements contemporaneous with its passage. What happened subsequently is either ambiguous, or an assumption not shown to have been warranted; it is also the product of members of a Congress so distant in time from the enacting Congress that we cannot accept their remarks as an accurate expression of the earlier Congress’s intent. We must, therefore, rely on whatever may be implicit in the statute. The strongest argument for implication of a cause of action is that such a right is created by other provisions of the same law. That analogy is false; it attempts to achieve like conclusions from different premises. The Rehabilitation Act contains both the provision (section 503) requiring federal contracts to obligate contractors to take affirmative action, 29 U.S.C. § 793, and, in the section immediately following, a provision forbidding discrimination in federal grants. The language of the two sections is different: 29 U.S.C. § 793 (§ 503) Any contract in excess of $2500 entered into by any Federal department . . . for the procurement of personal property and nonpersonal services . . . shall contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals. . . . 29 U.S.C. § 794 (§ 504) 29 U.S.l No otherwise qualified individual in the United States shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity reviewing No oth< vidual i reason exclude in, be of, or crimina gram or activity reviewing Federal financial assistance A number of courts have held that section 504 creates a private cause of action in favor of qualified handicapped persons discriminated against in programs that receive federal grants. See, e. g., United Handicapped Federation v. Andre, 8 Cir. 1977, 558 F.2d 413; Kampmeier v. Nyquist, 2 Cir. 1977, 553 F.2d 296, 299; Lloyd v. Regional Transportation Authority, 7 Cir. 1977, 548 F.2d 1277; Davis v. Bucher, E.D.Pa.1978, 451 F.Supp. 791; Doe v. New York University, S.D.N.Y.1978, 442 F.Supp. 522 (dictum); Barnes v. Converse College, D.S.C. 1977, 436 F.Supp. 635; Gurmankin v. Costanzo, E.D.Pa.1976, 411 F.Supp. 982, aff’d, 3 Cir. 1977, 556 F.2d 184. Moreover, in Cannon v. University of Chicago, 1979, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560, the Supreme Court found an implied cause of action in Title IX of the Education Amendments of 1972 for violation of § 901(a) which provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The parallel in construction between Title IX and section 504 is evident. The differences between this common design and the mandate of section 503 are equally clear: section 503 does not outlaw discrimination; it requires affirmative action covenants to be inserted in government contracts. Section 503 also incorporates a specific method of enforcing the contractual provision; contractors who do not abide by their undertaking may be subjected to sanctions by the Department of Labor. The statute expressly discusses administrative enforcement and the regulations emphasize conciliation and persuasion as methods of dispute resolution. See 41 C.F.R. § 60-741.26(g)(2). Section 504, on the other hand, does not expressly provide for administrative enforcement. Save for their common endeavor to aid the handicapped, the two sections have little in common. The words of section 503 convey no message that the same remedies should be available as those afforded for violation of section 504. The type of assistance afforded by section 503 to aid persons whom the government wishes to benefit by its contracting power has been afforded in the past. Both Executive Order 11246, promulgated in 1965, and its predecessor 10925, promulgated in 1961, required government contractors to agree to include nondiscrimination and affirmative action provisions in their contracts with the Government. We have declined to infer a private cause of action under such an executive order containing language similar to that of section 503. See Farkas v. Texas Instruments, Inc., 5 Cir. 1967, 375 F.2d 629, cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (Exec. Order 10925); see also Farmer v. Philadelphia Electric Co., 3 Cir. 1964, 329 F.2d 3 (Exec. Order 10925 and predecessors); Traylor v. Safeway Stores, Inc., N.D.Cal.1975, 402 F.Supp. 871 (Exec. Order 11246 as amended by 11375). The rationale of these decisions is that litigation would disrupt the administrative scheme established by the order and the supplementing regulations. These decisions should have given Congress fair grounds to believe that, when it enacted section 503, federal courts would not infer a private cause of action under it and that, if it intended a different result, it should make its mandate explicit. Cf. Cannon v. University of Chicago, 1979, 441 U.S. 696, 698, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 575, 576 (uses the interpretation of Title VI at the time Title IX was enacted to divine Congressional intent concerning Title IX). Indeed, the Executive Order is referred to in the scant legislative history of section 503. Moreover, our court, like others, has generally not inferred private causes of action under statutes regulating employee-employer relationships. See, e. g., Jeter v. St. Regis Paper Co., 5 Cir. 1975, 507 F.2d 973 (no private right of action under Occupational Health and Safety Act, 29 U.S.C. §§ 651-678); Martinez v. Behring’s Bearings Service, Inc., 5 Cir. 1974, 501 F.2d 104 (no private right of action for wrongful death under Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)); Flores v. George Braun Packing Co., 5 Cir. 1973, 482 F.2d 279 (no implied right against employer for deprivation of job based on illegal employment of foreign nationals under Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(15) (A)(ii), 1182(9)(14), 1324); Breitwieser v. KMS Industries, Inc., 5 Cir. 1972, 467 F.2d 1391, cert. denied, 1973, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d 705, (no implied right of action to bring a wrongful death action under child labor provisions of Fair Labor Standards Act, 29 U.S.C. § 212); United States v. Lovknit Manufacturing Co., 5 Cir. 1951, 189 F.2d 454, cert. denied, 342 U.S. 896, 72 S.Ct. 229, 96 L.Ed. 671 (no implied right of action under Walsh-Healey Act, 41 U.S.C. §§ 35-45; dictum). C. Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? As we have already indicated in differentiating section 503 from both section 504 and Title IX, Congress provided a complete administrative scheme to remedy Section 503 violations. The implementing regulations, set forth at length in the footnote, provide explicit details for the operation of that plan. The administrative emphasis is on “conciliation and persuasion” and on “informal means” of resolution. The regulations make no provision for a private cause of action, suggesting that a private judicial remedy may be difficult to harmonize with the administrative enforcement framework. In addition, Title IX contained a provision for the award of attorney’s fees, passed contemporaneously with the act, which indicated that the very Congress that passed the law believed a private cause of action existed.. No corresponding reason exists to buttress the thesis that section 503 was intended to authorize private litigation. The provision of an express administrative remedy for qualified handicapped persons creates at least some basis to conclude that a private right of action would be inconsistent with the purposes of the legislative scheme. As the Supreme Court has noted, “This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alterius.” National Railroad Passenger Corp. v. National Association of Railroad Passengers, 1974, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646, 652. “[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies,” the Court reasoned. Id. For, “ ‘[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’ Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929).” Id. See also Transamerica Mortgage Advisors, Inc. v. Lewis, 1979, - U.S. -, -, 100 S.Ct. 242, 247, 62 L.Ed.2d 146, 155 (“where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.”). To determine the message to be found in the void of express Congressional statement, we resort neither to our own notions of sound policy nor to our concept of what best suits the public weal. Where there is silence, as Cannon commands, we seek for affirmative evidence of Congressional intent. Silence may indicate only that the question never occurred to Congress at all, or it may reflect mere oversight in failing to deal with a matter intended to be covered, or it may demonstrate deliberate obscurity to avoid controversy that might defeat the passage of legislation, or it may, indeed, be a result merely of an assumption by Congress that the courts would recognize a private cause of action. The issue is not whether, on the merits, balancing on-the-one-hand with on-the-other, advocates of judicial remedies have a better case than opponents, but whether, considering the purpose and function of the statute and its legislative history, we can find a legislative intent to recognize a judicial remedy. The task does not lend itself to certitude or dogmatism. Yet principle can shed helpful light even if not the clarity necessary for absolute confidence. The standard is that those who contend a statute has endowed them with a cause of action must establish their proposition. The appellants have not shown that section 503 presents the “atypical situation in which all of the circumstances that the Court has previously identified as supportive of an implied remedy are present,” Cannon v. University of Chicago, 1979, 441 U.S. 677, 717, 99 S.Ct. 1946,1968, 60 L.Ed.2d 560, 587, or even that sufficient of them attended its enactment to warrant the implication. For these reasons, we decline to do judicially what Congress has not done legislatively, and we AFFIRM both judgments. . Both appellants also attempted to allege causes of action arising under section 504 of the Act, 29 U.S.C. § 794, but those claims were abandoned in the district courts in both instances. The appeal here arises solely under the section 503 claim. We should also note that, while appellant Moon brought his action solely in his own behalf, appellant Rogers brought her action as a class action. Because the district courts dismissed both actions for the reason that they found no private right of action, this difference in status is not significant in our decision. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has authority for administration of this section and has promulgated regulations. See 41 C.F.R. § 60-741 (1978). . Lest this simple statement of the issue appear to provide an ingenuous answer, we note that plaintiffs ask us not to infer a private action to force the inclusion of affirmative action clauses in federal contracts, but to infer a private action to remedy actions of federal contractors that they claim discriminate against the handicapped. . Because we are satisfied that the fourth factor in Cort is satisfied — this is not a matter traditionally relegated to state law — we do not discuss it. The crucial inquiry is whether Congress intended a private judicial remedy as part of section 503. The most fruitful direction for that inquiry is a focus on the first three factors in Cort. See Touche Ross & Co. v. Redington, 1979, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82. Although we conform our analysis to the framework set down in Cort, we must remember that the framework is primarily a guide for the process of statutory construction. See Transamerica Mortgage Advisors, Inc. v. Lewis, 1979, - U.S. -, 100 S.Ct. 242, 62 L.Ed.2d 146. Thus, we are not entitled to infer the presence of a private judicial remedy in the face of Congressional silence if the language and structure of the statute do not support the inference, even though in other circumstances silence would not be dispositive. See id. (discussing Cannon v. University of Chicago, 1979, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560). . We are aware that the affirmative action clause inserted in federal contracts pursuant to 29 U.S.C. § 793 bans discrimination on the basis of handicaps. See 41 C.F.R. § 60-741.4 (1978). There is also language in the legislative history indicating that the section has an anti-discrimination component. See Rep.No. 93-318, 93d Cong., 2d Sess. (1973). See generally, Note, Private Rights of Action for Handicapped Persons under Section 503 of the Rehabilitation Act, 13 Val.U.L.Rev. 453 (1979). However, its principal thrust is to ensure that federal contractors will take affirmative steps to employ the handicapped, see S.Rep.No. 93-318, 93d Cong., 2d Sess. (1973); S.Conf.Rep.No. 93-1270, 93d Cong., 2d Sess. (1974), and the legislative history does not provide any basis for defining the nature of the antidiscrimination component we are asked to read into the affirmative action language of the statute. The plaintiffs do not assert a claim based on putative status as third party beneficiaries of a federal contract, and we do not undertake to discuss the issues, neither briefed nor argued on appeal, whether a federal contract containing provisions required by statute creates a third-party beneficiary relationship, see Restatement of Contracts, §§ 133-147 (1932), and what would be the jurisdictional basis for a suit by such a third-party beneficiary in a federal court. If the thesis is plausible, we would also need to consider whether implication of a third-party beneficiary claim turns on the same considerations as implication of a private cause of action. . See Cannon v. University of Chicago, 1979, 441 U.S. 677, 686 n. 7, 99 S.Ct. 1946, 1952 n. 7, 60 L.Ed.2d 560, 569 n. 7. The Cannon court noted, despite its partial reliance on later legislative history, that “we cannot accord these remarks the weight of contemporary legislative history . . . .” Id. In contrast to the situation here, there was in Cannon substantial contemporary legislative history supporting the court’s view of the statute, id. at 694, 99 S.Ct. at 1956-57, 60 L.Ed.2d at 574. . This apparently prompted Senator Robert Stafford, who was not one of the conferees but was a leading advocate of the Rehabilitation Act throughout its consideration, to state that it was intended that enforcement under both sections 503 and 504 would be similar to enforcement under section 601 of the Civil Rights Act and section 901 of the Education Amendments. 120 Cong.Rec. 30551 (1974). It is noteworthy, however, that immediately following its suggestion that enforcement of sections 503 and 504 should be “uniform,” the conference committee indicated that enforcement of the two sections would be handled by separate agencies. Sen.Conf.Rep.No. 93-1270, supra at 27-28. It assigned to the Secretary of HEW “responsibility for coordinating the section 504 enforcement effort” because of that department’s experience in combatting discrimination. Of course, that experience includes familiarity with coordinating private causes of action and administrative enforcement. Section 503 enforcement authority was, however, left to the Department of Labor, in response to Executive Order No. 11758, 39 Fed.Reg. 2075 (Jan. 15, 1974), as amended by Executive Order No. 11784, 39 Fed.Reg. 19443 (May 30, 1974). That order allows the Secretary of Labor to proscribe regulations for enforcement of section 503, including regulations providing for the waiver of section 503’s requirements. Congress’s adoption of the separation of enforcement of the two sections, and its apparent willingness to have enforcement of section 504 only in the hands of the department with expertise in dealing with private lawsuits, suggests that its desire for “uniform” enforcement may not have encompassed enforcement techniques. It is also difficult to believe that Congress intended a private cause of action under section 503 since it failed to comment on an Executive Order which allows contracting departments to exempt contracts from the section’s provisions. . This amendment added a new section, section 505, 29 U.S.C.A. § 794a (West Supp.1979), to the Act, which in relevant part provides: In any action or proceeding to enforce or charge a violation of a provision of this sub-chapter, 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. Section 505(b), 29 U.S.C.A. § 794a(b). . For instance, the House Report states that this part of the amendments “[p]ermits courts to award attorney’s fees to successful parties in judicial actions to enforce the provisions of Title V.” H.R.Rep.No.- 95-1149, 95th Cong.2d Sess. (1978), reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 7312, 7313. See also id. at 7332. . In a report issued September 13, 1979, the Senate Committee on Labor and Human Resources, considering legislation to amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination against individuals because they are handicapped, stated “the Committee’s intent that any handicapped individual aggrieved by a violation of Title V” has the right to proceed in federal court, “and to receive back-pay and attorney’s fees if successful.” Sen. Rep.No. 96-316, 96th Cong., 1st Sess. 12 — 13 (1979). . 41 C.F.R. § 60-741-4 provides: § 60-741.4 Affirmative action clause. Each agency and each contractor and subcontractor shall include the following affirmative action clause in each of its covered government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract). AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (a) The contractor will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped individuals without discrimination based upon their physical or mental handicap in all employment practices such as the following: employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. (b) The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. (c) In the event of the contractor’s noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with the rules, regulations and relevant orders of the Secretary of Labor issued pursuant to the Act. . A strange argument is made by the Office of Federal Contract Compliance Programs in other cases, and relied upon to some degree by the dissent, that a private cause of action should be implied because the executive branch lacks personnel to perform its duty and that, therefore, the Third Branch should supply the need.
GOLDBERG, Circuit Judge, dissenting. I respectfully dissent. The issue presented in this case is one of first impression in the appellate courts. We have been asked to decide whether there exists a private right of action in the federal courts under § 503 of the Rehabilitation Act of 1973 (the Act), as amended, 29 U.S.C.A. § 793 (West 1975 and Supp.1979), in favor of qualified handicapped individuals who allege that they were victims of handicap-based discrimination in their employment with federal contractors. This question is, I think, one of great significance both for the millions of handicapped individuals who have waited and labored to see their right to equal treatment established in the law along with the rights of other groups who have been victims of invidious discrimination and also for the jurisprudence of implied private rights of action. I will therefore set forth in some detail my reasons for reaching a conclusion contrary to that reached by my brethren, but it is important to recognize from the outset certain factors which set this case apart from the run-of-the-mill situation in which courts are required to decide whether a private right of action inheres in a statute not explicitly creating one. First, the Supreme Court has observed that “the legislative history of a statute that does not expressly create or deny a private right of action will typically be equally silent or ambiguous on the question.” Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979). Untypically, however, the history of the legislative consideration of § 503 contains direct evidence of a congressional intent that a private cause of action is to be found implicit in the statute. While these statements were not contemporaneous with the passage of the Act, I will show that settled judicial authority requires that we give great weight to such indications of congressional intent and that this case is a particularly appropriate one for doing so. Second, both the Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) — the agency charged with administering § 503 — have taken the position that a private cause of action exists under § 503; that such a cause of action is not inconsistent with the congressional purposes underlying the Act and, rather than hindering the Act’s administrative enforcement scheme, will assist it; and that exhaustion of administrative remedies should not be required in every case. There is thus little room for judicial second-guessing of the impact of a private cause of action on the congressionally-established administrative enforcement scheme. When these and all the other relevant factors are considered within the analytical framework established by Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), and refined in more recent decisions, see, e. g., Transamerica Mortgage Advisors, Inc. v. Lewis,-U.S.-, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) (TAMA); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, supra, I think the correct answer to our question is easily fathomed: § 503 creates a private right of action in the federal courts, without a requirement that administrative remedies be exhausted in every case. Because litigation under § 503 — even the concept of handicap discrimination itself — is relatively new to the federal courts, some background regarding that section and the claims involved here will be helpful. Section 503(a) of the Act, in pertinent part, requires that contracts “in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services . for the United States shall contain a provision requiring that, in employing persons to carry out such contracts the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined” in the Act. Section 503(b) provides an administrative complaint mechanism permitting any handicapped individual who believes any contractor is not in compliance with such contract to file a complaint with the Department of Labor. OFCCP has authority for administration of this section and has promulgated regulations. See 41 C.F.R. Part 60-741 (1978). The regulations require that federal agencies insert in all covered contracts a clause stating, inter alia, “The contractor will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified.” 41 C.F.R. § 60-741.4 (1978). These regulations also permit individuals to file complaints with the agency, alleging that a violation of the Act or regulations has occurred, and establish the procedures by which the agency itself investigates and attempts to resolve the complaint. See 41 C.F.R. § 60-741.26 (1978). While the agency has stipulated that proven violations “should be resolved by informal means, including conciliation and persuasion, whenever possible,” the regulations provide other enforcement procedures in case these informal means fail, including judicial enforcement of the contractual provisions, the withholding of progress payments, termination of the contract, and debarment of the contractor. See 41 C.F.R. § 60-741.28 (1978). In eases where informal resolution fails, however, none of these mechanisms is clearly geared to produce individual relief for the complainant. To illustrate the type of claim that may be raised under § 503 and to show how this particular claim was handled, I set forth the facts presented by Howard L. Moon, the appellant in No. 77-3263. Mr. Moon was employed as Terminal Manager by defendant/appellee Roadway Express, Inc. (Roadway), a federal contractor covered by § 503. On August 3, 1974, while still employed by Roadway, Mr. Moon was injured in an automobile accident and, as a result, his left leg was amputated. He returned to work with Roadway in June, 1975, where he remained until he was terminated on February 18, 1977, missing only one day at work during that time. Since his termination, Mr. Moon has been unemployed. Mr. Moon filed a complaint with the OFCCP on April 15, 1977, charging that his termination was in violation of § 503. On May 15, 1978, the OFCCP released the results of its investigation, stating: Investigation by this department indicated that the contractor terminated the complainant from employment because of his handicapping condition although the complainant continually demonstrated that he could perform the duties of Terminal Manager. The contractor has refused to reasonably accommodate the complainant with employment, and has therefore violated its obligations under the affirmative action provisions. The OFCCP further invited Roadway to join it in attempting an informal resolution of the matter. Nevertheless, Mr. Moon received a letter from the OFCCP on November 9, 1979, informing him that the Solicitor’s Office, to which his case file had been forwarded, had returned the file and advised that “they will take no further action on your complaint. Therefore, we are administratively closing it.” Mr. Moon was told he might write the Director of OFCCP seeking reconsideration of this determination: “the Director . . . may, for reasonable cause, reconsider or order the reconsideration of this determination.” (emphasis supplied) I Only a cave dweller or other layman would not realize that there has been a remarkable change of attitude by the Supreme Court regarding the inference of private rights of action in the last fifteen years. Compare J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) with Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). The Court has recently come to emphasize that “what must ultimately be determined is whether Congress intended to create the private remedy asserted” and, consequently, that the question is “basically a matter of statutory construction.” TAMA, supra, 100 S.Ct. at 245; Touche Ross & Co. v. Redington, supra, 99 S.Ct. at 2485; Cannon v. University of Chicago, supra, 99 S.Ct. at 1953 (1979). To me, this basic insight appears eminently wise. “Federal courts are not common law courts of general jurisdiction.” Majority Opinion at 1078. Our interpretation of a statute is not an occasion for our exercise of our own notions as to what we think Congress ought to have done, but rather an opportunity to give effect to that which Congress did in fact attempt to do. But there is no magic in the insight that our task is one of statutory construction, capable of vanishing the often almost intractable problems courts face in a case such as the present one. While this insight does help to focus our inquiry, it is quite often true, from the nature of the case, that when a court must decide whether a statute contains an implied remedy, the ordinary indicia of congressional intent will be of little assistance. If, for example, Congress made its intent to allow private actions explicit in the statute, there would be no need for litigation such as that before us. Nevertheless, the Supreme Court continues to make it clear that even in such cases as these courts are to find implied remedies when persuasive evidence of congressional intent supports them. See, e. g., Cannon v. University of Chicago, supra. Furthermore, [wjhile the absence of anything in the legislative history that indicates an intention to confer any private right of action is hardly helpful to the respondent, it does not automatically undermine his position. This Court has held that the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available. Cannon v. University of Chicago, supra, 99 S.Ct. at 1953. Such an intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment. TAMA, supra, 100 S.Ct. at 246. A court’s quest must thus always be for the elusive beast, congressional intent. And it must be emphasized that courts are guilty of judicial legislation not only when they do that which Congress has not authorized, but also when they refuse to give effect to the congressional purpose. The Supreme Court has established an analytical framework designed to drive from the brush the congressional intent regarding the establishment of an implied remedy under a statute. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). When we apply the four factors Cort identifies as “relevant” to the inquiry at hand, we must do so with our eyes wide open and in such a manner as to be most sensitive to that which we seek: persuasive evidence of congressional purpose. I cannot agree more that courts must avoid “mechanical adherence” to a “multi-part test.” Maj. Op. at 1078. But because I believe the majority has applied the analytical framework of Cort too restrictively — at times even too mechanically — to the circumstances of the present case, I must state my disagreement. Particularly relevant to my conclusion is the decision in the Cannon case. The Supreme Court there held that a private cause of action existed under § 901(a) of Title IX of the Education Act Amendments of 1972 (Title IX), 20 U.S.C.A. § 1681(a) (West 1978). Although the language of that statute is quite different from that of § 503 of the Rehabilitation Act, much evidence shows that Congress’ intent regarding the enforcement of each statute was roughly the same, and many parallels do in fact exist between the enforcement mechanisms established under them. While Cannon does not control the disposition of this case, it is in many ways a pathfinder for those of us who must wind our way through the thickets of legislative history, the tundra of administrative implementation, and the timeworn plains of judicial precedent. But one must also recognize that Cannon is not the benchmark for the evaluation of whether or not Congress intended to create an implicit private right of action. As the Supreme Court pointed out, “Title IX presents the atypical situation in which all the circumstances that the Court has previously identified as supportive of an implied remedy are present.” Cannon, supra, 99 S.Ct. at 1968. Nevertheless, application of the analytical concepts of Cannon to § 503 compels my finding of an implied remedy. A. The first inquiry is whether the plaintiff is “ ‘one of the class for whose especial benefit the statute was enacted’ . that is, does the statute create a federal right in favor of the plaintiff?” Cort v. Ash, supra, 95 S.Ct. at 2088. The thrust of this inquiry, as it bears on the legislative intent, is to determine whether, in passing the statute, Congress intended to benefit a clearly defined class — that is, to create protections in the federal law for them — and not to enact the law “for the protection of the general public.” Cannon, supra, 99 S.Ct. at 1954. This inquiry is a necessary one, for, if Congress did not intend to benefit a special class to which the plaintiffs belong, but intended instead to benefit the public generally, it is inherently less likely that Congress intended to create a private remedy which was not explicitly specified in the statute; else the whole criminal code, for example, might be found to have an implicit civil counterpart. See Cort v. Ash, supra, 95, S.Ct. at 2088-89. Properly conceived, this inquiry is a “threshold question.” Cannon, supra, 99 S.Ct. at 1953. I would conclude, as has every district court to examine § 503 in this context, that § 503 reaches the threshold. Recent Supreme Court cases make it clear that our question is answerable “by looking to the language of the statute itself.” Id. See TAMA, supra, 100 S.Ct. at 245; Touche Ross & Co. v. Redington, supra, 99 S.Ct. at 2489. In explaining the application of this factor in Cannon, the Court used as one illustration the language involved in the early case of Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916): [T]he statutory reference to “any employee of any such common carrier” in the 1893 legislation requiring railroads to equip their cars with secure “grab irons or handholds,” see 27 Stat. 531, 532, made “irresistible” the Court’s earliest “inference of a private right of action,” — in that case in favor of a railway employee who was injured when a grab iron gave way. Cannon, supra, 99 S.Ct. at 1953. Thus, to determine whether § 503 benefits a special class, we must ascertain whether it “expressly identifies the class Congress intended to benefit” and is drafted “with an unmistakable focus on the benefited class.” Id. at 1954-55. The language of § 503 meets this test. Section 503(a) mandates that contracts made for the federal government must contain clauses requiring the contractor, “in employing persons to carry out such contract,” to “take affirmative action to employ and advance in employment qualified handicapped individuals.” Furthermore, § 503(b) authorizes “any handicapped individual” to file a complaint with the Department of Labor when he or she believes the contractor has failed to comply with his obligations, and the complaints authorized include individual complaints of discrimination. Taken together, these elements of § 503 focus unmistakably on the class benefited, a class in which appellants have alleged their membership; the language of § 503 is at least as favorable to implication as the language involved in Rigsby, which, as I have noted, the Court approved in Cannon. Despite this fact, the majority suggests that more may be required of the statutory language before we may look favorably upon the question of inferring a private cause of action. Virtually ignoring the first half of the Cort formulation which tells us to ask whether the statute was enacted for the “especial benefit” of the plaintiff class, the majority seizes upon the second half— which asks whether a “federal right” was created in favor of the class. It then relies heavily upon the statement in Cannon that “the right — or duty — creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action.” Cannon, supra, 99 S.Ct. at 1954 n. 13. Clearly, as the majority points out, the language of § 503 does not fit neatly into the pattern the Court identified in Cannon as the most fertile field for implication. But equally clearly, I think, the Court did not intend to require a statute to incorporate some talismanic incantation before it can be deemed to create a federal right for its intended beneficiaries. We should look to the substance of the obligations created by the statute and not wear the kind of judicial blinders that force us to exalt the form of language over its content. After all, the Supreme Court has told us only that a particular form of language may be the “most accurate indicator” of whether an implied remedy is present; it did not make that form a sine qua non. When the statutory language falls into the pattern identified in Cannon, it may itself provide direct evidence of congressional intent to create an implied remedy. When it does not, but nevertheless reveals a clear intent to benefit the plaintiff class, other indicia of congressional intent must be considered. See TAMA, supra, 99 S.Ct. at 245-46. As evidence of the congressional intent present in § 503, I propose to examine whether or not it may fairly be read as creating a “federal right” in favor of the plaintiff class. I think it can. First, § 503(a) requires the affirmative action clause to be incorporated in all covered contracts. While the obligation may be contractual, it is not a bargained term. Contractors must agree to it to do business with the federal government. In fact, the OFCCP regulations provide that whether or not the affirmative action clause is physically incorporated into the contract or whether or not the contract is even a written one, the clause shall be deemed a part of the contract by “operation of the Act.” 41 C.F.R. § 60-741.23 (1978). Thus, in operation, § 503 is very much like Title VI or Title IX — with their explicit declarations of policy. Indeed, the Department of Health, Education and Welfare (HEW) requires contractual assurances under those provisions. See 45 C.F.R. §§ 80.4 & 86.4 (1978). Second, as noted, § 503(b) permits the intended beneficiaries of the Act to invoke its protections by filing an administrative complaint. These provisions make § 503 in its entirety both more and less than Title IX in terms of the explicit conferral of a benefit on the beneficiary class. While it is only indirectly declarative of the federal policy, it explicitly provides for an individual right of relief. Looking at all these circumstances realistically, I think we should find that § 503 establishes protections in the federal law for qualified handicapped individuals and indicates that Congress meant these rights to vest on individual discriminatees. The structure and substance of the statute create the federal right the majority requires. While the language of § 503 does not fit the pattern most favorable for finding an implied remedy and it is appropriate to scrutinize closely the other factors relevant to the question of the congressional intent, I nevertheless would find that “the threshold question under Cort,” Cannon, supra, 99 S.Ct. at 1946, is squarely met here. B. If the first Cort factor casts only an oblique light on congressional intent to create an implied remedy, the second factor illuminates the question directly. The inquiry here searches for “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one.” Cort v. Ash, supra, 95 S.Ct. at 2088. The Supreme Court has told us that this factor “requires consideration of legislative history.” Cannon, supra, 99 S.Ct. at 1956. To say that the history of the legislative consideration and elucidation of the Act is complex is to be guilty of an understatement more daring, perhaps, than even a Hemingway would risk. The cases require, however, that a court wind its way, Theseus-like, through its labyrinthine corridors of vetoes, amendments, and even more amendments, following always the Ariadne’s thread of the legislative consideration of § 503. I therefore propose to investigate the legislative history of the Rehabilitation Act, the Rehabilitation Act Amendments of 1974 (the 1974 Amendments), and the attorney’s fees provisions of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (the 1978 Amendments). I will then discuss the significance to be attached to Congress’ statements of its intentions in § 503. 1. The Rehabilitation Act. As Congress passed and repassed the Act in 1972 and 1973, it established wide-ranging federal and federally-funded programs to aid in the more complete integration of handicapped individuals into the mainstream of society. See S.Rep.No.93-318, supra, at 2090 — 92. Most of the discussion in Congress and, after the vetoes, most of the controversy, focused on these programs and the appropriations they required. Consequently, Congress devoted little of its discussion to its intentions regarding the noncontroversial antidiscrimination provisions of Title V of the Act — including § 503. Further, Congress had already considered and resolved its questions regarding the use of the power of the federal purse to enforce civil rights as early as 1964 in its consideration of Title YI. See NAACP v. Medical Center, Inc., supra, 599 F.2d at 1253-54. Then, in enacting Title IX of the Education Act Amendments of 1972, it again trod this same ground. When it came to consider §§ 503 and 504 of the Rehabilitation Act in 1972 and 1973, which were in the pertinent ways analogous to these other statutes, it not surprisingly found no occasion to pause to reconsider or further explain its intentions in adopting this mode of attack. Such discussion as did take place is of little aid in ascertaining whether Congress contemplated a private right of action under § 503. The statements most nearly addressing the question are at best of dubious import. During the original consideration of the legislation in 1972, Senator Humphrey submitted a statement, introduced on the floor by Senator Cranston, in which he commented on the inclusion of the predecessors of §§ 503 and 504 in the Act. He indicated his belief that these provisions “carrped] through the intent” of bills he had introduced to amend Titles VI and VII of the Civil Rights Act of 1964 “to guarantee the right of persons with a mental or physical handicap to participate in programs receiving Federal assistance, and to make discrimination in employment because of these handicaps, and in the absence of a bona fide occupational qualification, an unlawful employment practice.” 118 Cong. Rec. 32310 (1972). While this statement does not establish that a private cause of action was intended under § 503, equally certainly it does not show an intent to deny such a remedy. Nor, in fact, do any of the other statements made during the consideration of the Act. As was apparent to the Congress at the time, it had attempted so much in the legislation that its full implications could not be immediately apparent. 2. The 1974 Amendments Congress began its clarification of those implications when it amended the Act in 1974. In particular, it focused on the problems of § 503’s implementation in its amendment of the definition of “handicapped individual” applicable to that section. As the original conference report shows, Congress meant the amendment to effectuate more fully its original intention to provide all qualified handicapped individuals protection against discriminatory practices, and, under § 503, to require affirmative action for their benefit under contracts in which federal funds were expended. It meant, in addition, to clarify its intention that discrimination against the handicapped was to be treated as similarly as possible to that against other minority groups in those contexts in which the Act applied. See S.Conf.Rep.No.93-1270, 93d Cong., 2d Sess. 25, 26 (1974). In explaining how §§ 503 and 504 were to be implemented under this new definition, the conference report pointed out that: Section 504 was patterned after, and is almost identical to, the anti-discrimination language of Section 601 of the Civil Rights Act of 1964 [Title VI] and Section 901 of the Education Amendments [sic] of 1972 [Title IX] . . This approach to the implementation of Section 504, which closely follows the models of the above-cited anti-discrimination provisions, would . . . permit a judicial remedy through a private action. And, immediately following this statement, the report continues: It is intended that Sections 503 and 504 be administered in such a manner that a consistent, uniform and effective Federal approach to discrimination against handicapped persons would result. Id. at 27. Senator Stafford, ranking minority member of the Subcommittee on the Handicapped of the Committee on Labor and Public Welfare and a leading advocate of this legislation on the floor during all stages of its consideration, addressed these same considerations during the Senate debate. Aft