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Brian P. Barron v. Nightingale Roofing, Inc.
Citations: 842 F.2d 20; 34 Cont. Cas. Fed. 75,462; 127 L.R.R.M. (BNA) 2996; 1988 U.S. App. LEXIS 3351; 46 Empl. Prac. Dec. (CCH) 37,895; 1988 WL 21898Docket: 86-2082
Court: Court of Appeals for the First Circuit; March 16, 1988; Federal Appellate Court
The United States Court of Appeals for the First Circuit addressed whether Section 402 of the Vietnam Era Veterans Readjustment Assistance Act (38 U.S.C. Sec. 2012) provides a private right of action for Vietnam veterans against private government contractors. Appellant Brian P. Barron claimed he was denied employment by Nightingale Roofing, Inc. despite being hired, asserting a violation of Section 402 after he disclosed his status as a Vietnam veteran with Post Traumatic Stress Disorder. Nightingale moved to dismiss Barron’s complaint, arguing that Section 402 does not create a private right of action, which the district court upheld, stating that Barron could only pursue his claims through the administrative process outlined in the statute. On appeal, the court affirmed the district court's dismissal, concluding that Section 402 does not explicitly grant a private right of action to individuals. The court referenced the statutory text, which mandates affirmative action for hiring veterans in contracts over $10,000 but does not allow for private enforcement. To determine if a private cause of action could be implied, the court applied the four-factor test from Cort v. Ash, focusing on whether Barron was part of the intended beneficiary class, legislative intent regarding private remedies, consistency with the legislative purpose, and whether the claim falls under state law. The appeal ultimately confirmed that no private right of action exists under Section 402. The second and third Cort factors indicate that a private cause of action under Sec. 402 is not supported. Legislative history is silent on Congress considering a private right of action, with enforcement intended to be managed by the Department of Labor. The enforcement mechanisms outlined in 41 C.F.R. Sec. 60-250 establish a comprehensive administrative process, including complaint filing, investigation, and potential judicial action by the Director of the Office of Federal Contract Compliance Programs. This administrative scheme reflects Congressional intent to delegate enforcement to the Department of Labor, suggesting that a private cause of action would disrupt the established procedures. Courts such as Roddy v. Shong and De Leon Cruz v. Loubriel have similarly concluded that no private right of action exists under Sec. 402. Additionally, the similarity in language and regulatory enforcement between Sec. 402 and Sec. 503 of the Rehabilitation Act, which has been consistently interpreted as not providing a private right of action by multiple appellate courts, further reinforces this conclusion. Consequently, the judgment of the district court is affirmed.