Litigation - Sierra Club v. Babbit - Edwards Aquifer Page: 3 of 330
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even if the Commission qualifies as either a recipient of "federal
financial assistance" or as an "executive agency" as used by the
statute, its operations must still qualify as a "program or
activity" in order for the Act's provisions to apply. Therefore,
based on the preceding discussion, the Commission's operations,
including the holding of hearings, employing of staff,7 and
operating a library available to the public, would not be
considered a "program or activity" pursuant to the Act.
(ii) "Federal Financial Assistance"
To reiterate, one way to come within the mandate of 794 is to
operate a program or activity that receives federal financial
assistance. Whereas the Act fails to provide a definition for
"federal financial assistance," federal courts have broadly
construed the term to encompass assistance of any kind, whether it
be direct or indirect.8 The Supreme Court, however, has limited
its meaning to those who actually "receive" such assistance, as
opposed to those who merely benefit from it.9 Furthermore,
Commander Puget Sound Naval Shipyard, et al., 875 F.2d 1415, 1420-
21 (9th Cir. 1989) (denying coverage of 794 to federal employers or
employees, as the statutory definition of "program or activities"
does not refer to these parties).
7 As an aside, while employment is not within the breadth
of 794, 791 involves the consideration of employment of
individuals with disabilities. Section 791 creates a private cause
of action for a federal employee discriminated against by a federal
employer because of his or her handicap. Specifically, 791(b)
states that "[e]ach department, agency, and instrumentality . . .
in the executive branch shall . . . submit . . . an affirmative
action program plan for the hiring, placement, and advancement of
individuals with disabilities in such department, agency, or
instrumentality." 29 U.S.C. 791(b). See Johnston v. Capt. Horne.
Commander Puget Sound Naval Shipyard, et al., 875 F.2d at 1421 ('If
Postal Service employees, mentioned specifically in 794, may not
sue, it follows that federal employees may not'), Boyd v. United
States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985)([S791] is
exclusive remedy for federal employees). Whereas 791 is not
within the scope of this memorandum, no further discussion of this
provision will be made.
8 Independent Housing Services of San Francisco v. Fillmore
Center Associates, No. C 91-1220 RFP (D. Calif. Oct. 16, 1991)
(Lexis 14960), and Arline v. School Board of Nassau County, 772
F.2d 759, 762 (11th Cir. 1985), cert. granted and limited on other
ground, 475 U.S. 1118 (1986).
9 Department of Transportation v. Paralyzed Veterans, 477
U.S. 597 (1986)(holding that commercial airlines are not recipients
of federal financial assistance under [794], but merely
'beneficiaries' of funding granted to airports).
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United States. Defense Base Closure and Realignment Commission. Litigation - Sierra Club v. Babbit - Edwards Aquifer, text, Date Unknown; (https://digital.library.unt.edu/ark:/67531/metadc27952/m1/3/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.