to the Rehabilitation Act, summary judgment cannot be granted.
Plaintiffs have, in addition, asserted violations of the Civil Rights Act, 42 U.S.C. § 1983. While the Supreme Court in the celebrated case of Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980) reasoned that § 1983 "arguably provide[d] a remedy for violation of the Rehabilitation Act. . . .,"
the necessary requisites of a § 1983 action have not been met. "In order to state a claim under the Civil Rights Act '(1) the conduct complained of must have been done by some person acting under color of state law'", Keen v. Philadelphia Daily News, 325 F. Supp. 929, 930 (E.D. Pa. 1971) quoting Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965), and plaintiff must state with some degree of specificity the constitutional guarantees which have been violated. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976). While plaintiff has named as defendants "persons" within the definition of § 1983, plaintiff has made no showing in the case sub judice that the defendants were acting under color of state law. Absent such a showing, plaintiffs' claims are not cognizable under the Civil Rights Act of 1964. In the case sub judice, defendants are all in the employ of an agency of the federal government operating under federal law, not state law. Therefore, we grant defendants' summary judgment motion with regard to plaintiffs' § 1983 claims.
Plaintiffs also assert violations of § 702 of the Administrative Procedure Act (APA) in conjunction with the Fifth and Fourteenth Amendments of the United States Constitution, stating that "the conduct of defendants denying the plaintiffs the opportunity to apply for restrictive employment, placing them on a status of leave-without-pay, denying them the benefits of disability status, denying them the opportunity to advance in their professions was arbitrary and capricious. . . ." (Plaintiffs' Complaint, para. 27). Plaintiffs are, therefore, alleging that the defendants violated their own procedures in the handling of the matter of plaintiffs' disabilities. As we discussed supra, there is, indeed, a question of material fact as to whether defendants did exert sufficient efforts to afford ". . . reasonable accommodation to all aspects of . . . placement, training, promotion, reassignment, and developmental assignment." (Defendants' Exhibit, Dept. of Navy CPI 713-A); see C.F.R. Part 1613.701-710. While it is true that agencies are not required to strictly adhere to all of their rules and that agencies are entitled to some measure of discretion in administering procedural rules, see U.S. v. Caceres, 440 U.S. 741, 754, 59 L. Ed. 2d 733, 99 S. Ct. 1465 n. 18 (1979) and American Farm Lines v. Black Ball Freight Service et al., 397 U.S. 532, 538, 25 L. Ed. 2d 547, 90 S. Ct. 1288 (1970), there remains a question as to what defendants actually did do to comply with the duty proscribed by the Rehabilitation Act to "reasonably accommodate" plaintiffs' conditions. Since this duty to "reasonably accommodate" is so similar to that identified in defendants' exhibit, which specifies the remedies available to an individual claiming discrimination based on a handicapped condition, the result must also be the same. We conclude that a material issue of fact is raised with regard to defendants' compliance with regulations and that defendants' motion for summary judgment on the grounds of the APA together with the Fifth and Fourteenth Amendments must be denied.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 677 F. Supp.]
The motion of defendants for summary judgment is GRANTED in part and DENIED in part.
1. Summary judgment is DENIED as to the plaintiffs' claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Administrative Procedure Act, 5 U.S.C. §§ 551, 702, and the Fifth and Fourteenth Amendments of the United States Constitution.
2. Summary judgment is GRANTED as to plaintiffs' claim under the Civil Rights Act of 1964, 42 U.S.C. § 1983.
3. Judgment is entered in favor of the defendants and against the plaintiffs as to the plaintiffs' claim under the Civil Rights Act of 1964, 42 U.S.C. § 1983.
4. Trial of this case shall be held on Thursday, August 8, 1985 at 9:30 a.m. in Courtroom 6B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
IT IS SO ORDERED.