Sheehan Oral Argument; This one is Wild

Yesterday, the United States Supreme Court heard oral argument (the transcript can be found here), in Sheehan v. City and County of San Francisco, which I discussed in this blog entry. I’ve got to admit that this argument did not go anyway along the lines that I thought it would and here is why:

I
City’s Argument

1. The question that the United States Supreme Court granted cert. on was this:

Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

But here is the thing. Before the attorney for the City and County of San Francisco could even begin talking, Justice Scalia was all over her. In particular, he noted that the argument made in their principal brief did not address the question on which the Supreme Court granted cert. Justice Sotomayor then chimed in by saying that nowhere in their brief do they raise the argument that the ADA stops at direct threat.

2. Under questioning from Justice Alito, the attorney for San Francisco conceded that under title II of the ADA failure to make an accommodation for disability is discrimination and that being arrested was an activity of the state subject to title II of the ADA.

This is interesting because Justice Alito seems to be asking whether discrimination under the ADA meant something different than discrimination in ordinary parlance. Justice Alito’s point is a very important one. It is my view that the ADA set up is such that discrimination with respect to disability discrimination is very different than discrimination in the ordinary parlance because of the mandate of reasonable accommodations and reasonable modifications. I have certainly seen other attorneys make the assumption that discrimination means the same as it does in ordinary parlance, and so Justice Alito is not alone on that score. However, Justice Alito’s point was never really addressed, but will undoubtedly have to be addressed in the future. For reasonable accommodations and reasonable modifications to survive, the answer to this question must be that discrimination is not the same in the typical sense as it is under the ADA.

3. The attorney for the City and County of San Francisco conceded that the ADA imposes vicarious liability on the entity for the actions of its employees.

4. The attorney for the City and County of San Francisco also conceded that under title II of the ADA, the City is liable for damages if it engages in intentional conduct, which the “Ninth Circuit has expanded that to include deliberate indifference as well.” This concession by the attorney for the City and County of San Francisco seems to imply that intentional conduct may include deliberate indifference as well as other things. This concession assumes that title II applies in the first place, which Justice Scalia pointed out was not an argument set forth in their petition. In response to Justice Scalia’s question, the attorney for the City and County of San Francisco said that title II applies but that accommodations were not required where the individual was armed and dangerous. The attorney uses the term, “significant threat.”

5. Since the City and County of San Francisco was arguing something along the lines of direct threat, Justice Sotomayor wondered why that wasn’t a question for the jury. In response, the attorney for the City and County of San Francisco claimed that no reasonable jury could conclude that there was no significant danger here.

I am not sure that is correct. As pointed out by Justice Sotomayor, the regulations make clear that direct threat must be based upon an individualized assessment using a reasonable judgment relying on current medical knowledge or the best available objective evidence to ascertain the nature, duration, severity of the risk, the probability that the potential injury will occur, and whether reasonable modifications will mitigate the risk. The evidence would have to be fairly overwhelming to decided this as a matter of law, which doesn’t seem to be the case here. Also, it is interesting that the words “significant danger/threat,” are being used, since direct threat under the applicable Department of Justice regulations, as pointed out by Justice SotoMayor, means something else entirely.

II
U.S. Argument

With respect to the United States position in this case, it was a bit odd and here is why:

1. United States view is that the ADA does apply to arrests because title II of the ADA applies broadly to any department or agency of the local government, including police. It also applies broadly to activities, services, and programs, which also includes arrests. Further, there is no circuit split on that issue and the ADA contains no exemption for police activities.

2. United States agrees that vicarious liability exists for the entity for the actions of its employees that occur in violation of title II of the ADA.

3. The United States was of the view that when it comes to arrests, the police should be given the benefit of the doubt. That is, the court should adopt the view that is adopted in Barnett (a case in which the United States Supreme Court said that given a seniority system, in the run of cases a transfer will not be allowed unless a showing of special circumstances is made). Similarly, the United States argued that when it comes to arrests, a title II violations should not occur in the run of cases unless the plaintiff could show special circumstances.

The problem here is that as far as I know, nobody knows what in the run of cases means. Also, special circumstances doesn’t offer much guidance, a point made by Justice Kennedy.

III
Sheehan’s Argument

1. Sheehan’s attorney argued that the principal dispute in this case is a factual and not a legal one. Justice Scalia’s response is very telling: “exactly. I don’t know why we took the case.” In response, Sheehan’s attorney says that the court should consider dismissing the case as improvidently granted, which basically means the United States Supreme Court said that it was mistake to take the case in the first place. The result of which is the decision below would stand.

2. Sheehan’s attorney argued that under the title II regulations, danger to self is not a part of the direct threat defense. Accordingly, even assuming that a person was a direct threat to self, since the regulations don’t encompass that, the duty to accommodate still exists.

This is interesting because it is the flipside of what the United States Supreme Court faced in Chevron v. Echazabal, where the United States Supreme Court held that the EEOC was within its rights to find that direct threat included a danger to self as well as to others. Now, it is essentially being argued that the Department of Justice is within its rights to say that direct threat does not include a danger to self. As pointed out earlier by Justice Sotomayor, nowhere in the papers below did the City and County of San Francisco raise the direct threat argument.

3. Barnett worked in the union situation but doesn’t work here. That is, in the union situation, there was a direct conflict between the proposed accommodation (transferring the employee), and the employer’s seniority rules. Therefore, it made sense for the United States Supreme Court to add an additional burden to the plaintiff. However, Sheehan’s attorney argued that the symmetry was completely different here. That is, there was a symmetry between the proposed accommodation and the way that the City trains its officers as a universally accepted means for dealing with persons with mental health issues. Further, the concept of direct threat is very analogous to the concept of reasonable force that the police have to use under the fourth amendment and they are used to dealing with that every day.

4. While it is true that one Circuit has said that the ADA does not apply if a person is armed and dangerous, that issue is not before the court since nobody was arguing that.

5. The special circumstances test proposed by the United States violates and undermine the regulatory framework of the ADA. Further, the test proposed by the United States government puts their from on the scale in addition to changing the regulatory framework without having given the lower court opportunity to develop the issue.

6. The standard proposed by Sheehan’s attorney was that if the direct threat defense is not satisfied, a person with a disability must be accommodated.

7. Sheehan’s attorney argued that if a police officer knows or could reasonably determine (knew or should have known), that an individual is suffering from a mental disability, then the ADA reasonable accommodation requirements apply.

This particular argument led to a very interesting discussion, and which a very important point was missed somehow. That is, the question of whether it matters why a person is acting in a dangerous and violent way (is it because of a disability or is it because of something else?) Sheehan’s attorney says that the difference matters because of when ADA liability occurs, though for fourth amendment purposes, reasonable force doesn’t make those distinctions-though it does take into account diminished capacity. Here is my problem. The ADA also protects someone who is regarded as having a disability. It wouldn’t be hard to show that in “the run of cases “in this situation, a police officer could well regard a person acting in such a way as having a disability. It would’ve been interesting to see what would have happened if the regarded as argument had been made.

8. Both Sheehan and the City and County of San Francisco agree that the direct threat regulations of the DOJ apply to this case; it is only the United States that has a different standard.

9. Sheehan’s attorney went on to address the issue of qualified immunity, but the entire discussion reads as an afterthought (just consuming four pages of the 56 pages of transcript). That said, there was some discussion about whether the standard involved the law in general or just that in the controlling jurisdiction.

10. In summing up, Sheehan’s attorney said that the use of deadly force on people with mental illness was a real problem in society and that officers and public entities would only change when they are held accountable for those actions. Living here in Atlanta, just within the last couple of weeks, we had a situation where an officer shot and killed a naked veteran with mental health issues.

IV
So what is going to happen:

1. Reading tea leaves with the United States Supreme Court, especially in ADA matters, is impossible. True, with respect to employment, persons with disabilities frequently do not fare well. However, persons with disabilities do much better with United States Supreme Court when it comes to matters outside of employment. Also, here the case got argued in one way but the petition for cert. and the City and County of San Francisco’s brief suggested it would be argued another way. Thus, it wouldn’t surprise me to see the United States Supreme Court decide that the petition was improvidently granted. Keep in mind, Justice Breyer is not participating in this case because his brother was the District Court judge in this case. I suspect that there may be four votes and possibly more for improvidently granting cert.

2. The special circumstances test proposed by the United States government is probably not likely to be adopted, assuming the United States Supreme Court doesn’t say that Certiorari was improvidently granted, since Justice Kennedy did not like the test at all.

3. All parties agreed, except for the United States as amicus, that the direct threat regulations applied, though they differed in how the regulation should be interpreted.

4. Not before the court was whether the Department of Justice has the authority with respect to direct threat to exclude direct threat to self. That is the complete reverse of Chevron v. Echazabal, where as mentioned above, the United States Supreme Court held that the EEOC was within its rights to say that direct threat included threat to self.

Earll v. eBay and Cullen v. Netflix before the 9th Circuit: Perez matters NOW though nobody seemed to see it

This week is a two fer. At 11 AM Eastern time, the United States Supreme Court will hear argument in Sheehan (my blog entry on that case can be found here). I promise that I will read the transcript of the argument and post my analysis this week.

This particular blog entry involves two different cases questioning whether the ADA applies to web-based only businesses, both of which were argued to the Ninth Circuit on March 13, 2015, four days AFTER Perez.

Earll involves the situation where a deaf individual wanted to be an eBay vendor but could not be because the certification that she had to do in order to become an eBay vendor involved having to listen over the phone, and she of course could not do that since she was deaf. Cullen is the California version of the case discussed in this blog entry.

Here is how the argument before Judges McKeown, Murguia, and Friedland went (interesting that I could not find a way to read the transcript or a way to view the oral argument with closed captioning. Not sure if that was my technical skills or the ways don’t exist…:-).

Plaintiff (Earll)

1. The statement of interest from the Department of Justice saying that the ADA applies to web only based businesses is entitled to Chevron deference.

A. The Department of Justice specifically says that they are interpreting regulations of the ADA in reaching this conclusion.

2. Weyer v. 20th Century Fox Film Corporation, 198 F.3d 1104 (9th Cir. 2000), is no longer good law in light of Spector v. Norwegian Cruise Line, Limited, 545 U.S. 119 (2005).

A. Quite a bit of debate ensued between the judges and the appellant as to whether Spector even applied.

3. The appellant never cited to either National Association of the Deaf v. Netflix , 869 F. Supp. 2d 196 (D. Mass. 2012), or to Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999), though the judges did in response to the appellee’s arguments.

4. A very technical discussion ensued as to whether certain arguments could be made in light of the way the documents were filed and the arguments made in those documents.

eBay (Appellee)

1. Weyer is the law in the Ninth Circuit and it insists on an actual physical place.

2. National Association of the Deaf v. Netflix is simply not good law and should not be persuasive to the Ninth Circuit because it relied on Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, 37 F.3d 12 (1st Cir. 1994), which was a policy driven decision and not a decision based upon statute. That is, the plain meaning of title III of the ADA is that places of public accommodations are subject to its requirements. The emphasis is on the term, “place.”

3. Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999), statement that the ADA applies to electronic space is dicta.

4. Attorney for eBay conceded essentially that it goes too far to say that any website is not subject to the ADA, but it is consistent with the ADA to say that web-based only businesses are not subject to the ADA. In other words, in essence, the attorney for eBay was essentially saying that National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006), is good law.

5. The attorney for eBay actually argued the Spector case before the United States Supreme Court, and he said the issue was not whether the ship was a place of public accommodation as a ship is most certainly a place. Rather, the issue there concerned foreign flag vessels and whether they were subject to the ADA.

Cullen v. Netflix

Appellant (Cullen)

1. The ADA contains gaps that could be filled in by the appropriate federal agency and those gaps should be given Chevron deference.

2. The Department of Justice interpretation of the regulations trumps Weyer

3. The Department of Justice interpretation of the regulations may be found in an appendix. A considerable debate ensued about whether the appendix was interpretation or whether it was a regulation. The attorney for Cullen eventually had to say under intense questioning by one of the judges on the panel that the interpretation was not a regulation but rather an interpretation codified as part of a regulation.

Appellee (Netflix)

Cullen waived an independent disabled persons act claim but not the state law claims based upon the ADA.

My thoughts:

1. There was an awful lot of argument about whether the Department of Justice interpretation of what the ADA requires and its regulations should be entitled to Chevron deference. Bottom Line here is that the United States Supreme Court will not have to wait until the Department of Transportation regulation discussed in Perez makes its way through the court system before deciding the level of deference interpretation of regulations if this case gets a hearing before the United States Supreme Court after the Ninth Circuit decides it. If the Ninth Circuit finds that the interpretation of the regulations is entitled to deference, then the issue is squarely before the United States Supreme Court per Perez. Therefore, if the Ninth Circuit Court of Appeals holds that the Department of Justice interpretations of the regulations contained in their statement of interest and in the appendix are entitled to Chevron deference (as Perez makes clear, Chevron deference may not be the appropriate term since it is the agency’s interpretation of regulations that are involved here), then the issue will be squarely before the United States Supreme Court. While Perez did not come up by any of the attorneys or the judges in the argument, one has to believe that it will be a critical feature of the panel decision in this case. It is curious that none of the attorneys or the judges brought up Perez as that case, admittedly decided only four days prior to this argument, was very much lurking in this oral argument.

2. It is a pretty powerful argument when an attorney that has argued a case before the United States Supreme Court comes back with a statement saying that a particular case the appellant is arguing does not stand for what the appellant says because I argued that case and I was there. I am inclined to agree with that attorney. The issue in Spector was the foreign flag question and not whether the ship was a place.

3. The statement in Doe v. Mutual of Omaha Insurance Company that the ADA applies to electronic space is most certainly dicta as the case had nothing to do with that particular statement. That said, the fact that Judge Posner made that statement is an important consideration.

4. National Federation of the Blind v. Target got a big shot in the arm from this argument when eBay essentially says that it is good law. That is, eBay essentially conceded that a website if it is a gateway to a brick-and-mortar store, then that website must be in compliance with the ADA.

5. The attorney for eBay argument that Carparts was a policy driven decision and not a statutory based decision could have been made even stronger by saying that Congress amended the ADA with the ADAAA and they did not take the opportunity at that time to make it clear that the Internet was a place of public accommodations when they made those amendments to the ADA.

6. If EBay and Netflix lose, expect an appeal to the United States Supreme Court where the concerns of the concurring opinion in Perez will be squarely presented. If eBay and Netflix win and Earll and Cullen appeal, Perez will be the key there as well. If Cullen and Earll lose, there will be a real thing to consider as to whether they should even apply for cert. to the Supreme Court as it is entirely possible that by appealing, the United States Supreme Court will be given the opportunity to turn administrative law upside down and that is a risk that the plaintiffs may not want to take with respect to what it might mean for future cases.

Perez v. MBA and it’s Impact on the ADA Universe: Huge and Starting with new DOT Final Regulations

I
Introduction
Sometimes a case can have a huge impact on the ADA universe even though it is not an ADA case at all. Gross v. FBL Financial Services 557 U.S. 167 (2009) is one such case and today’s case is another. As is my usual practice, the blog entry has been divided into several categories: introduction; today’s case; the concurring opinions; the final rule from the Department of Transportation pertaining to transportation for individuals with disabilities…; The specific provisions of the final rule; highlights of the language of the final rule; why Perez matters; the appendix; and takeaways. The reader is free to concentrate on any or all of the categories.

II
Today’s Case

Today’s case, Perez v. Mortgage Bankers Association, a unanimous decision from the United States Supreme Court decided on March 9, 2015 is another such case. In this case, the Department of Labor’s wage and hour division issued letters stating that it was their opinion that mortgage loan officers do not qualify for the administrative exemption to overtime pay requirements under the fair labor standards act. In 2006, the wage and hour division completely reversed course. In 2010, they reversed again. MBA file suit alleging that under the jurisprudence of the United States Court of Appeals for the District of Columbia, when an agency does something like this, it must go through the Administrative Procedure Act’s notice and comment procedures.

The United States Supreme Court in a unanimous opinion, said the terms of the Administrative Procedure Act were very clear when it states that the notice and comment requirement does not apply to interpretive rules, general statement of policy, or rules of agency organization, procedure, or practice. Therefore, an agency was not required to go through the notice and comment procedures when it issues interpretive rules regardless of its interpretation in the past, and the line of cases from the US Court of Appeals of the District of Columbia saying otherwise was in error.

In reaching this conclusion, the majority opinion made a few additional critical points that are useful here. First, interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process. Second, prior case law from the United States Supreme Court merely meant that an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations and was not in support of the line of cases stating otherwise from the US Court of Appeals for the District of Columbia. Third, the Administrative Procedure Act does require an agency to provide more substantial justification when a new policy rests upon factual finding contradicting those underlying a prior policy or when a prior policy has led to serious reliance interests. To ignore both of those situations would be arbitrary and capricious.

III
The Concurring Opinions

That all may be true, but what is extremely significant about this case is the concurring opinions. The concurring opinions reveal that there are at least three justices of the United States Supreme Court that would go even further. To their view, it is simply not enough to say that interpretive rules do not have the effect of law because while they do not have the effect of law, there is a line of cases from the United States Supreme Court that requires deference to agency interpretations of regulations unless it is plainly erroneous or inconsistent with the regulation. The three justices (Scalia and Thomas explicitly and Alito signifying he is leaning that way), believe that doctrine should be overruled as well, which brings us to….

IV
The Final Rule from the Department Of Transportation Pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices

On March 13, 2015, the Department of Transportation issued a final rule pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices. The final rule requires public transportation entities to make reasonable modifications/accommodation to their policies, practices, and procedures in order to ensure program accessibility. The necessity for the rules was mandated by case law that was finding against the Department of Transportation by holding that transportation entities were not obligated to make such modifications under the ADA because the Department of Transportation had no regulations explicitly requiring transportation entities to make reasonable modifications.

V
The Specific Provisions of the Final Rule:

1. Recipients of federal financial assistance are required to provide reasonable accommodation to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless there exist a fundamental alteration to the nature of the service, program, or activity or there exist an undue financial and administrative burden.

What is interesting about this particular provision of the final rule is the requirement that a defense exist where there exist an undue financial AND administrative burden. When I first saw this, I said to myself this can’t be right and so I double checked it. It turns out that under the implementing regulations for title I of the ADA, it is clear that undue hardship, which is a title I term, can either be an undue hardship in the financial sense OR in the logistical sense. See 29 C.F.R. § 1630.2(p)(2). With respect to title III’s implementing regulations, it is clear that undue burden can be either financial or logistical. See 28 C.F.R. § 36.303(a). While I don’t have it handy at the moment, there is plenty of case law to support that undue hardship can either be financial or logistical and that undue burden under title II can either be financial or logistical. Nevertheless, the final regulations dealing with title II of the ADA, 28 C.F.R. § 35.150(a)(3) do refer to undue financial AND administrative burdens. It doesn’t seem that the Department of Transportation believes that both have to be satisfied because otherwise much of its appendix, more on that later, to this final rule would not make any sense.

2. Those providing public transportation, including fixed route, demand responsive, and complementary paratransit services must implement their own processes for making decisions on providing reasonable modification to their policies and practices. There is freedom on how to go about it but certain things have to happen. First, information about the process and how to use it must be readily available to the public, including persons with disabilities. Second, the process must allow for accessible means by which persons with disabilities can request reasonable modifications/accommodations. Third, the process must also provide for those situations where an advance request and determination is not feasible.

3. Requested modification can be denied in any of three different situations: a fundamental alteration of the provider’s services exist; providing the modification results in a direct threat to the health or safety of others; providing the accommodation is not necessary to permit the passenger to use the entity’s services for their intended purpose in a nondiscriminatory fashion (that is, while the modification might make things more convenient for the passenger, the passenger could nevertheless use the services in a nondiscriminatory manner without the modification).

4. All public and private entities providing these transportation services must have a complaint process in place. The Department of Transportation will look to take action where a complaint process is not in place, the complaint process is not being operated properly, the complaint process is not being operated in good faith, or a particular case raises a federal interest.

VI
Highlights of The Language of the Final Rule

5. With respect to an entity receiving federal financial assistance, what is really interesting is that the final rule itself uses a bit of different language. The final rule talks about reasonable accommodations and not reasonable modifications. Reasonable accommodations is a title I term, whereas reasonable modifications are the terms used in title II and title III. Nevertheless, the final rule specifically uses the term reasonable accommodations but then says that reasonable accommodations mean the same thing as reasonable modifications under title II of the ADA and not reasonable accommodations under title I of the ADA. I find this all strange. I do not know why the Department of Transportation does not stick with the term reasonable modifications instead of going through a complicated endeavor to use the term reasonable accommodations in the final rule.

6. Whether a public entity or a private entity, it must have at least one person designated to coordinate its efforts to comply with nondiscrimination on the part of persons with disabilities (recipients of federal financial assistance due to § 504 regulations should already have such a person).

7. The final rule specifically defines origin to destination service and mandates that where an ADA paratransit operator chooses curb to curb service as the primary means of providing service, assistance must be provided to passengers with disabilities beyond the curb unless such assistance results in a fundamental alteration or a direct threat.

8. Public and private entities must give priority to methods offering services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate to the needs of the person with a disability.

9. Public entities have until July 13, 2015 to get a complaint process in place.

10. In determining whether to grant a requested modification, public entities shall be guided by the provisions of appendix E, coming up next.

VII
Why Perez Matters

11. Perez matters because in the world of the ADA you have guidances and interpretive rules everywhere. The decision puts everyone on notice that the guidances and interpretive rules are at considerable risk of subsequent litigation. Further, calling a guidance something else, such as in this case attaching an appendix, is also at considerable risk.

VIII
The Appendix:

12. The provisions of the final rule clearly suggests that the appendix only applies to public entities (See new 49 C.F.R. 37.169(d)), yet the appendix itself doesn’t seem to make that distinction.

13. The appendix actually uses the term, “…explains the department’s interpretation of §§ 37.5(g) and 37.169 [and] is intended to be used as the official position of the department concerning the meaning and implementation of these provisions.”

Two points here. First, the rule as literally set up seems to suggest that private entities do not have to worry about the appendix. Second, it is clear that the appendix is the Department of Transportation’s interpretation of the final rule and as such may run into the problem of whether this interpretation will be granted deference per Scalia, Thomas, and presumably Alito, if their views prevail.

14. Things that the Department of Transportation will consider reasonable modifications:

A. A passenger’s request for a paratransit driver to walk over a pathway that has not been fully cleared of snow and ice where such request is to help the passenger with a disability navigate the pathway;

B. If snow or icy conditions at a bus stop make it difficult or impossible for a fixed route passenger with a disability to get to the lift or for the lift to deploy, moving the bus to a cleared area for boarding if moving the bus is available within reasonable proximity to the stop;

C. A paratransit rider’s request to be picked up at home but not at the front door of his or her home or to be dropped off at an entrance requested by a passenger to a frequently visited public place with multiple entrances so long as the requested pickup location did not pose a direct threat;

D. Picking up a paratransit passenger on private property in a gated community or parking lot, mobile home community, business or governmental facility where vehicle access requires it also pass through a security barrier so long as every reasonable effort to gain access to that area has been made;

E. Granting a passenger’s request for a driver to position the vehicle to avoid obstruction to the passenger’s ability to enter or leave the vehicle at a designated stop location, such as park cars, snowbanks, and construction so long as the vehicle avoiding the obstruction does not pose a direct threat;

F. Granting a passenger’s request for transit personnel to handle the fare when the passenger with a disability cannot pay the fare by the generally established means;

G. Granting a passenger with diabetes or another medical condition request to eat or drink aboard a vehicle or in a transit facility in order to avoid adverse health consequences;

H. Granting a passenger’s request to take medication while aboard a fixed route or paratransit vehicle or in a transit facility;

I. Granting a wheelchair user’s request aboard a fixed route or paratransit vehicle separately from his or her device when the occupied weight of the device exceed the design load of the vehicle lift;

J. A passenger’s request for the driver to open an exterior entry door to a building to provide boarding and/or alighting assistance to a passenger with a disability so long as such assistance does not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

K. A passenger requesting that a paratransit vehicle navigate to a pickup point where it is difficult to maneuver a vehicle so long as the passenger does not expose the vehicle to a hazard posing a direct threat.

L. A paratransit passenger’s request for a driver to help him or her navigate an incline with the passenger’s wheel device. Same goes for assistance in traversing a difficult sidewalk or getting around obstacles between the vehicle and a door to a passenger’s house or destination unless such assistance results in a direct threat or leaves the vehicle unattended or out of visual observation for a lengthy period of time.

M. A passenger’s request to be assisted from his or her door to a vehicle during extreme weather conditions so long as the driver leaving the vehicle to assist would not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

N. Where a passenger’s request for assistance means that the driver will need to leave passengers aboard a vehicle unattended or out of visual observation for a lengthy period of time, unless accommodating the request is a direct threat to the health or safety of the unattended passengers, which the Department of Transportation says “could involve direct threat,” in that situation.

The use of the term “could involve direct threat…,” Is extremely problematic in terms of what it might mean.

O. Accommodating a passenger with a disability on a return trip when they did not need that assistance on the initial trip;

P. A passenger’s request for a telephone call five minutes in advance or at time of vehicle arrival.

What is not a reasonable modification/accommodation:

1. Fixed route operators having to establish flag stop or route deviation policies;

2. Reaching into pockets or backpacks of the passenger with a disability in order to extract the fare;

3. A paratransit passenger’s request for special equipment so long as that requested equipment is not required by the ADA or Department of Transportation rules. Same goes for a dedicated vehicle or a specific type or appearance of vehicle;

4. A person’s request to have the transportation provider travel outside of its service area or to operate outside of its operating hours;

5. Providing a personal care attendant or a personal care attendant services to meet the needs of passengers with disabilities on paratransit or fixed route trips;

6. Providing the passenger with a disability free fixed route or paratransit driver services;

7. Being asked to follow a path to a pickup or drop-off point that exposes the vehicle and its occupant to hazards;

8. A passenger’s request for a specific driver;

9. A passenger’s request for a fixed route or paratransit driver to assist with luggage or packages where it is not the normal policy or practice of the transportation agency to do that;

10. A paratransit passenger’s request not to ride with certain riders.

11. Unless an emergency exists, a passenger’s request for a driver to lift the passenger out of his or her mobility device.

Optional

1. Granting a paratransit passenger’s request for a driver to make an intermediate stop where the driver would be required to wait is something the paratransit operator can or cannot do at their option.

Wild West

1. A paratransit or fixed route passenger’s request that the driver take charge of the service animal may be denied. Caring for a service animal is the responsibility of the passenger or a personal care assistant.

True enough. But what does caring for the animal mean. See this blog entry of mine.

IX
Takeaways:

1. Guidances and interpretive rules when it comes to the world of the ADA are absolutely everywhere. Perez is putting everyone on notice that the ability of agencies to issue the guidances and interpretive rules is unfettered, but the days of such interpretive guidances and rules being given a great deal of discretion by the court may be coming to an end. Thus, agencies may have won the battle in Perez, but may be on the verge of losing the war.

2. These Department of Transportation regulations may be the perfect case for the Supreme Court to evaluate whether interpretive rules and guidances must be given deference by the courts. Apendix E is clearly an interpretive rule regardless of what you might call it, and the very nature of the rule takes away the individual case by case analysis that the ADA requires.

3. Apendix E on its face only applies to public entities. Therefore, if you are a private entity, a plausible argument can certainly be made that appendix E is not applicable. Also, nothing in the final regulation seems to suggest that appendix E would apply to a private entity accepting federal funds either.

4. Despite what the title II regulations say, I am not aware of any case law that says for something to be an undue burden it has to be both financial and administrative.

5. As I have mentioned before, with rare exceptions, I don’t like guidances and interpretive rules for many reasons. First, the guidances and interpretive rules avoid the notice and commenting process of the Administrative Procedure Act. Second, such guidances and rules can create their own problems (example-what does caring for an animal mean? What does it mean to say that an intermediate stop is optional but could rise to a fundamental alteration?). Finally, the guidances and rules are used as a crutch by attorneys so that attorneys don’t have to go through the individual analysis to figure out whether an undue burden/hardship or fundamental alteration exists. It won’t surprise me in the least if appendix E is used as a vehicle to test whether the doctrine of giving deference to interpretive rules and guidances is still good law.