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

677 F.2d 1271, 1 Am. Disabilities Cas. (BNA) 330, 1982 U.S. App. LEXIS 19021, 29 Empl. Prac. Dec. (CCH) 32,848, 28 Fair Empl. Prac. Cas. (BNA) 1695

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 1982
• Docket: 80-5201
• Status: Published

Opinions

DUNIWAY, Circuit Judge:

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

I. Facts.

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

II. Appealability of the Order.

The court’s order merely dismissed the complaint; there is no judgment dismissing the action. Ordinarily, an order granting a motion to dismiss under rule 12(b)(6), F.R.Civ.P., carries with it a right to amend under rule 15(a), and thus is not an appealable final judgment. Here, however, the ruling was on a ground not curable by amendment, and it is clear that the court intended to dispose of the action. See Scott v. Eversole Mortuary, 9 Cir., 1975, 522 F.2d 1110, 1112. The order is appealable. However, the better practice would have been to enter a judgment of dismissal.

III. The Merits.

We affirm on the ground that the complaint does not and cannot state a claim upon which relief can be granted. We do not reach the question of the applicability of the Eleventh Amendment. Title 29 U.S.C. § 794 now reads in pertinent part as follows:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

In Trageser v. Libbie Rehabilitation Center, Inc., 4 Cir., 1978, 590 F.2d 87, 89, the Fourth Circuit decided that a private action under § 794 to redress employment discrimination cannot be maintained unless a primary objective of the federal financial assistance is to provide employment. The Second and Eighth Circuits have followed. United States v. Cabrini Medical Center, 2 Cir., 1981, 639 F.2d 908; Carmi v. Metropolitan St. Louis Sewer District, 8 Cir., 1980, 620 F.2d 672. See also Simpson v. Reynolds Metals Co., Inc., 7 Cir., 1980, 629 F.2d 1226, 1232, 1234. For the reasons stated in Trageser, supra, we conclude that the order appealed from is correct.

Affirmed.