exhaustion

Defending Against Serial Plaintiff Redux and FCC Exhaustion as a Prerequisite for ADA and Rehabilitation Act Claims

October 2, 2018 by William Goren 1 Comment

For you baseball fans out there, yesterday was a big day. Both the NL Central and the NL West had a one game play in to decide whether they are going to be the division winner or the wildcard. I’m lucky because my native team, the Chicago Cubs, are assured of a playoff spot (wildcard it turns out). My hometown team, the Atlanta Braves, is a division winner. So, I have two teams in the hunt. If you have a team in the playoffs, good luck!

Today’s blog entry is a two-for-one. That is, we will be discussing two cases from the 11^th Circuit that came down recently. One we have blogged on already here, and this is the appellate decision. The other is exhaustively analyzed by my colleague Richard Hunt in his blog entry, which can be found here. However, I do want to add a few words beyond what Richard says in his entry. As usual, the blog entry is divided into categories, and they are: court’s reasoning Sierra v. City of Hallandale Beach, Florida-exhaustion; court’s reasoning Sierra v. City of Hallandale Beach, Florida-primary jurisdiction; Sierra takeaways; Kennedy v. OmegaGas and Oil LLC; and Kennedy takeaways. Of course, the reader is free to focus on any or all of the categories.

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Exhaustion.

We discussed the lower court decision here. So, I refer you to that blog entry for a more complete recitation of the facts. Also, the 11^th Circuit decision is published.
Before determining an administrative remedy bars federal court’s jurisdiction, there must be clear and unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.
Plaintiff has not brought a complaint under the 21^st Century Communications and Video Accessibility Act of 2010 (CVAA). Rather, the complaint was brought under the Rehabilitation Act and title II of the ADA.
Under the well pleaded complaint rule, a litigant gets to choose under what cause of action to sue.
Congress granted the Federal Communications Commission exclusive jurisdiction with respect to any complaint filed under the CVAA.
Issues concerning closed captioning of video content delivered over the Internet can arise in a variety of ways, including in the context of disability discrimination, while issues concerning complaints under the CVAA arise only in one place. In short, the relevant section of the CVAA does nothing more than prevent someone wanting to bring the complaint under that section from doing so anywhere else other than before the FCC. Both the Ninth Circuit and the District Court in Massachusetts, in a case we discussed here, have reached the same conclusions. Cases to the contrary are not persuasive.
Not all plaintiffs are able to sue under the Rehabilitation Act or the ADA.

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Primary Jurisdiction

Two factors are utilized for deciding whether primary jurisdiction is an appropriate doctrine to apply and they are: the expertise of the agency deferred to and the need for a uniform interpretation of a statute or regulation.
The FCC itself has indicated a plaintiff is not required to exhaust remedies under the CVAA. That indication comes in two different places. First, when they issued regulations in 1997, the FCC recognized that the statute operated in parallel to other federal statutes on the same subject. Second, the plaintiff in this case when he exhausted his administrative remedies with the FCC, received a reply from the FCC explicitly noting that he had ADA remedies apart from the CVAA.
Since the primary jurisdiction doctrine is prudential and not jurisdictional, the court saw no reason why deference to an agency is appropriate when the agency itself feels that no deference is warranted.
The FCC has no expertise on whether the Rehabilitation Act and the ADA recognizes a cause of action for failure to provide closed captioning.
The FCC’s charge under the CVAA has nothing to do with what constitutes a violation under the Rehabilitation Act or the ADA.
Courts do not automatically grant primary jurisdiction to an agency in interpreting its own statute, let alone a statute over which the agency has no authority.
The statutory interpretation task presented by this case presents no issue demanding the FCC’s expertise.
The case presents no special need for uniformity apart from the general search for uniformity that the law requires. That is, just because you may have divergent interpretation of the ADA and Rehabilitation Act, that does not defeat the statutes themselves.
One plaintiff benefiting from a more favorable interpretation of the Rehabilitation Act or the ADA will not benefit that plaintiff at some other plaintiff’s expense.
Just because it is possible that the plaintiff has filed a claim against the wrong party, that does not defeat the court’s jurisdiction to hear the case.

III

Sierra Takeaways

The decision is published.
One of the things we have seen about this blog, is that many times the various laws bump into each other. This case is a reminder that the plaintiff gets to choose what laws to proceed under. There are a variety of reasons as to why a plaintiff chooses to proceed under one law or the other.
I am not exactly sure I understand the court’s reference that not all plaintiffs are able to sue under Rehabilitation Act or the ADA in the context that the statement arises in the opinion. It is, of course, a true statement especially where the plaintiff does not have a disability. However, if the plaintiff does have a disability and cannot meaningfully access the programs and activities of the public entity or the place of public accommodations, it would seem they could bring suit under the ADA or the Rehabilitation Act in many situations.
An important consideration here, is that the FCC explicitly noted that their jurisdiction over disability discrimination was not exclusive.
There is a difference between plaintiff benefiting from divergent interpretation of statutes v. a plaintiff benefiting at the expense of another plaintiff, which is the case in ratemaking situations.
Assuming a claim is filed against the wrong party, that doesn’t prevent the court from hearing the case in the first place.

Kennedy v. OmegaGas and Oil, LLC

This decision is not published.
For an analysis of this decision, you are not going to do better than Richard Hunt’s exhaustive analysis of this case, which can be found here.
This case should be read with my blog entry discussing how to defend against the serial plaintiff, the defense of which I have been involved with numerous times. That blog entry can be found here.
The critical piece of the decision is the part of the opinion talking about the burden of proof when it comes to readily achievable. The court said that the burden of proof works as follows. First, the plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable. That is, easily accomplishable and able to be carried out with much difficulty or expense under the particular circumstances of the case. Second, if the plaintiff meet this burden, then the defendant bears the ultimate burden of persuasion that the barrier removal is not readily achievable. However, the court goes even further when it says: “The plaintiff’s initial burden is not light. Rather, a plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of the facility. Without evidence of these issues, a defendant cannot determine if it can meet its subsequent burden of persuasion.”

Kennedy Takeaways

The decision is not published.
This decision should be used in conjunction with the case discussed in my defending against the serial plaintiff blog entry, which can be found here.
The critical piece of this decision is the court specifically saying that the plaintiff initial burden of production, “is not light.” So, this gives the defense the ability to use the two-step approach discussed in my defending against the serial plaintiff blog entry, and should it continue to go into litigation, then be able to buttress its decisions as to what to fix and when to fix them by forcing the plaintiff to present a significant amount of evidence that the defendant’s determination as to readily achievable is not correct.

2017 Understanding the ADA Greatest Hits

December 18, 2017 by William Goren Leave a Comment

It is time for the top 10 plus three of 2017. For the most part, the greatest hits, but not of all of their order of popularity stayed the same from 2016 to 2017, except for one entry (negligence per se dropped out of the top 10 and was replaced by the history of ADA and ADA related cases at the United States Supreme Court). In my greatest hits box, you will find two blog entries that I believe are incredibly important, not that all of my blog entries aren’t important:-), and deserve to have special mention even if they are not a greatest hit. Also, you will find an entry that is sure to be a greatest hits in 2018 since it has to be read with another blog entry that is already a greatest hit. In addition, you will find the top 10 for 2017. So, this should be a total of 13 blog entries in my greatest hits box and they are:

I get too many phone calls from students in higher education, particularly graduate schools, where the college or professional school seems to not have a clue about their ADA compliance obligations. So, I always list this blog entry, which discusses an ADA compliance checklist for places of higher education.

A critical principle with the ADA is that the ADA is a duty that cannot be delegated as seen here. But, be sure to read this blog entry as well as it’s complicated.

One of the greatest hits is just what is the statute of limitations for ADA claims. However, an even more important question perhaps, is when does that statute of limitations begin to run, which we discussed just last week in this blog entry.

Turning to the Top 10 of 2017 and they are in reverse order:

10. Is causation under the ADA “but for,” or something else? This blog entry discusses that question. (907 views and sixth place last year).

9. Whether public colleges and public university are immune from suit on the grounds of sovereign immunity is discussed here. (1125 views and eighth place last year).

8. How does the ADA deal with temporary disabilities is discussed in this blog entry. (1246 views and third place last year).

7. In order to file suit under title I of the ADA, one has to exhaust administrative remedies. This blog entry discusses what that means. (1351 views and 10th place last year).

6. Just what is the difference between a service dog and a therapy dog? See this blog entry. I should note that the issue of service dogs is something you will find numerous blog entries on. (1430 views and fifth place last year).

5. Suing a state court system for violations of the ADA is extremely difficult, but it can be done as discussed here. (1496 views and seventh place last year).

4. July 2016 blog entry discussing ADA and Related Cases at the Supreme Court and What is Next. (2108 views and new this year).

3. What do you have to show in order to get compensatory damages under title II of the ADA is discussed in this blog entry. (2144 views and second place last year).

2. Just what is the applicable statute of limitations for ADA claims is discussed in this blog entry. (2774 views and fourth place last year).

AND THE WINNER IS…

It is not even close for the second year in a row. This particular blog entry, which discusses whether you can get compensatory and punitive damages in ADA retaliation cases, has more than 1.5 times the views of the second-place finisher coming in at 4,406 views.

Merry Christmas, Happy Hannukah, Happy Holidays, and Happy New Year to all!

See you next year!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Fry Decided

February 27, 2017 by William Goren 2 Comments

Last week the United States Supreme Court came down with the decision in Fry v. Napoleon Community Schools, the oral argument of which I discussed here. A whole bunch of people have blogged on the case, but I thought I would share my thoughts here. The blog entry is divided into three categories: court’s reasoning; concurrence reaoning; and takeaways. The reader will probably want to read all of it. It was a unanimous decision with Justice Kagan writing the decision for the court and Justice Alito and Justice Thomas writing a concurring opinion.

Court’s Reasoning

Exhaustion is not necessary when the gravamen (legalese for substance), of the plaintiff’s suit is something other than the denial, of the IDEA’s core guarantee of a, “free appropriate public education.”
An eligible child acquires a substantive right to a free appropriate public education once a state accepts IDEA’s financial assistance.
IDEA is not the only federal statute protecting the rights of students with disabilities. Of particular relevance, are title II of the ADA and §504 the Rehabilitation Act.
Under title II of the ADA, public entities are required to make reasonable modifications to its policies, practices, or procedures when necessary to avoid such discrimination. Also, §504 of the Rehabilitation Act has also been interpreted by the courts as requiring reasonable modification to existing practices in order to accommodate persons with disabilities.
To fall within the standard where the IDEA requires exhaustion, a suit must first seek relief for the denial of a free appropriate public education because that is the only relief IDEA makes available.
If an accommodation is needed to fulfill the IDEA free appropriate public education requirement, under IDEA, the hearing officer must order relief. However, if that accommodation is not needed to fulfill the free appropriate public education requirement, the hearing officer under IDEA has no authority to order that relief even though other federal laws, such as title II of the ADA or the Rehabilitation Act might require the accommodation on one of those alternative grounds. The sole role of the IDEA hearing officer is to enforce the child’s right to a free appropriate public education.
Where a suit is brought under a different statute and the remedy sought is not for the denial of a free appropriate public education, exhaustion of the IDEA processes is not required.
A school’s conduct toward a child with a disability might injure that child in ways unrelated to her free appropriate public education, which would beaddressed by statutes other than the IDEA. Such a complaint seeking redress for harms independent of a free appropriate public education denial, does not subject itself to the IDEA exhaustion requirement because the only relief the IDEA makes available is relief for the denial of a free appropriate public education.
The key is the substance of the complaint and not any, “magic words.
IDEA protects only children and adolescents with respect to their schooling. On the other hand, title II of the ADA and §504 the Rehabilitation Act cover people with disabilities of all ages both inside and outside schools.
IDEA guarantees individually tailored educational services, while title II and section 504 promise nondiscriminatory access to public institutions. It is possible that the same conduct could violate all three statutes. Nevertheless, the statutory differences are sufficient so that a complaint brought under title II and §504 might seek relief for discrimination independent of the IDEA free appropriate public education obligation.
In figuring out whether the substance of the complaint involves something other than a free appropriate public education, one can look to several clues: A) could the plaintiff have brought essentially the same claim had the alleged conduct had occurred at a public facility that was not a school, such as a public theater or library?; and B) could an adult at the school, such as an employee or a visitor, have brought essentially the same claim? When the answer to both of these questions is yes, the complaint that does not expressly allege the denial of a free appropriate public education is also unlikely to be truly about that subject. If the answer to these two questions is no, then the complaint probably does concern a free appropriate public education.
In fleshing out ¶ 12, Justice Kagan gives several examples, including: a child in a wheelchair suing the school for discrimination under title II because the building lacks access ramps; a teacher striking a student with a disability; a child with a learning disability suing under title II for failing to provide remedial tutoring in mathematics; and later on in the opinion, the situation of a child suing for the right to use his or her service dog.
Besides the clues in ¶ 12 above, another signal that the substance of the suit is a denial of a free appropriate public education might emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA formal procedure to handle the dispute-thereby, starting to exhaust IDEA’s remedies before switching midstream. The plaintiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a free appropriate public education with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. If there is a switch in processes, it is then up to the court to decide whether that switch reveals that the substance of the complaint is indeed the denial of a free appropriate public education and therefore, necessitates further exhaustion.
The Court of Appeals used the wrong standard by looking to see whether the injuries were free appropriate public education focused in nature. The standard that should have been used is what was the substance of plaintiff’s complaint. Since information is lacking because the wrong standard was utilized, the court remanded the issue back to the Court of Appeals.
The plaintiff’s complaint focused on equal access and nothing in the complaint suggest any implicit focus on the adequacy of the plaintiff’s free appropriate public education.

Concurrence Reasoning (Alito and Thomas):

The clues offered by the court only makes sense if one assumes there was no overlap between the relief available under the IDEA and the relief provided by other laws, such as the Constitution, the ADA, and the Rehabilitation Act.
The court admits in its opinion that such overlap exists.
Since the clues only work in the absence of overlap, Justice Alito joined by Justice Thomas would not use them.
The clue of how the proceedings start is ill advised. After all, it is easy to imagine circumstances where the parent starts down the IDEA road and then changes course and files an action under the ADA or the Rehabilitation Act seeking relief that the IDEA cannot provide. It is possible that the parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or, the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.
Although the court provides these clues for the purpose of assisting the lower courts, Justice Alito joined by Justice Thomas was afraid that the clues may have the opposite effect by confusing and leading courts astray.

III

Takeaways:

My initial reaction is that I agree with Justice Alito and Justice Thomas regarding the clues section of the opinion. The laws certainly do overlap to quite a degree, especially when one considers that is that the rare IEP that does not have accommodations in it. Also, I also find it easy to imagine circumstances where parents, who very well may not be assisted by a lawyer or by an advocate at the initial stages, inadvertently start down the IDEA process before realizing that the IDEA process was not necessary in light of the facts being alleged. That said, to be fair to Justice Kagan, she did say that the court had an independent obligation to evaluate whether the switch revealed a complaint that at its core was about a free appropriate public education rather than something else. In essence, what Justice Kagan has done with the switch clue is to create a rebuttable presumption that the switch involved a complaint whose substance is about a free appropriate public education, which can be rebutted by a plaintiff showing to the contrary.
The decision is a big win for students with disabilities, but it is going to make the life of lawyers representing students with disabilities much more complicated. Now, the incentives are going to be for the school district to put everything and anything in the IEP so that it can rely on the IDEA processes needing to be exhausted first, especially with Justice Kagan’s rebuttable presumption thrown in. On the other hand, if you are representing a student with a disability, you very well might want to consider having two plans for the student. One plan focusing on the free appropriate public education through the use of the IEP. Then, having a separate §504 plan focusing on all of the nonrelated reasonable modifications the student needs. That way, if something goes amiss with the §504 plan, you do not have to worry about the IDEA process. From a plaintiff’s side this approach makes a great deal of sense. However, there may be some resistance as school districts are not used to having both IEP’s and §504 plans simultaneously. Creating two separate plans simultaneously may be quite a complex task since, as mentioned above, it is the rare IEP that is focused on services only rather than a combination of services and accommodations. This also raises the question of whether the student with a disability can get by entirely with the § 504 plan rather than an IEP. That indeed may be possible in some cases but not in others.
From reading the tone of this decision and the oral argument in Endrew, which was discussed here, it is pretty easy to predict that the court is going to say in Endrew that schools will have to do something more than the minimum to meet their obligation under IDEA.
The rebuttable presumption also means that if an attorney does decide to go the route of not exhausting the IDEA process, it would be a good idea for the pleadings to clearly set forth what concerns would fall under the IDEA process and why the concerns of the claim being alleged are independent of that process. That task is made even easier if two simultaneous plans (IEP and §504), exist. This task is made more complicated by the fact that IDEA and title II of the ADA/§504 have different philosophies even though the term “free appropriate public education,” is used by both IDEA and §504. IDEA is all about setting goals and seeing if progress is met towards those goals. Whereas, §504 and the ADA are about figuring out the reasonable modifications that enable the student with a disability to get to the same starting line as others.
I agree with Justice Alito and Justice Thomas that these clues are going to be locked in and that subsequent litigation is going to involve the application of the clues. I also agree that the opinion for the court may have underestimated the extent of the overlap between the laws and the complexity of disentangling that overlap.
It isn’t unusual for school systems to issue the same packet of rights to parents for students with an IEP and for students with a §504 plan. While that may be a common practice, which was never supported by the law, it certainly isn’t supported by the law now. This case makes it quite clear that the rights under §504 and the ADA are entirely different than the rights under IDEA. It will be interesting to see how school districts inform parents, if at all, of the separate rights available to them when it comes to IDEA and §504/ADA.
When a special education lawyer receives the case and it is possible that the accommodation/modification involved are §504/ADA focused rather than IDEA focused, the lawyer as a result of justice Kagan’s rebuttable presumption, is going to have to make an election at the top as to whether to go through the IDEA process or go to the courts under §504/ADA.