justice gorsuch

What is a Service Establishment and the IRS 20 Factor Test

October 30, 2018 by William Goren Leave a Comment

Before getting started on the blog of the week, would be hard to not mention what happened in Pittsburgh. At our synagogue over the weekend during family minyan, which is a small service that takes place before people go to community/Hebrew/religious school (I am never sure what to call it), we said mourners Kaddish and lit a yizkor candle for our brethren in Pittsburgh. In my class ( I teach seventh grade), we discussed the story of Samson which focuses on revenge v. justice. That led to a spirited discussion over what penalty might be in order for the shooter. My thoughts and prayers go out to Pittsburgh. Far as I know, it is uncertain what security measures out own synagogue may be taking. I do know that many synagogues all over Atlanta have memorial services/vigils planned, including my own. For some excellent thoughts on anti-Semitism and why you need to watch out for in your workplace, I commend you to Jon Hyman’s blog entry on the subject, which can be found here. I also saw in the Atlanta paper today that since 2016, 54% of hate crimes involve Jewish animus. My original idea before Jon’s blog entry hit me like a ton of bricks was to talk about some sporting events in the last week. For example, congratulations to the Boston Red Sox on winning the World Series. I was able to catch some of the games. Absolutely remarkable how they won three in a row in Los Angeles. Congratulations to Red Sox nation. I think one of the reason people enjoy sports so much, especially spectator sports, is because for the most part they offer an escape. Again, my thoughts and prayers are with Pittsburgh and with the Jewish community all over America. My parents always said that it could happen here, but I never wanted to believe it….

Turning to the blog entry for the week, back in July 2016, I blogged on a 10^th Circuit case that held a plasma center was a place of public accommodation under title III. Now, two years later the Fifth Circuit was faced with the exact same issue and decided the opposite. So, we now have a Circuit Court split. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; Texas Human Resources Code claim; could a blood donor really be an employee; and takeaways. The reader is free to concentrate on any or all of the categories.

Facts

If anything, the facts in the case we are blogging on today, Silguero v. CSL Plasma, Inc., are even more egregious than the one we blogged about in July, 2016. Levorsen involved a schizophrenic person wanting to donate blood. Here, one plaintiff used a service dog for anxiety, and the other one had an unsteady gait. What this plasma center does is exactly the same as what we discussed in my July, 2016, blog entry. The only other difference between the two cases is that the plaintiffs also sued under the Texas Human Resources Code, §121.001 et. seq., claiming that they suffered discrimination by a public facility.

Court’s Reasoning

The key question is the meaning of “or other service establishment,” contained in 42 U.S.C. §12181(7)(F). That particular section denotes laundromats, dry cleaners, banks, barbershops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, office of an accountant or lawyer, pharmacies, insurance offices, professional offices of the healthcare provider, and hospitals as specific service establishments. After hospitals, a comma appears and then the clause ends with, “other service establishment.”
In a footnote, the Fifth Circuit noted that the Department of Justice filed an amicus brief expressing its view that plasma collection centers are service establishments under title III.
In a footnote, the court noted that while plaintiffs argue that the defendants advertised their collection centers were a service it gives for customers, how a party advertises work performed has no bearing on what Congress meant by the term, “service.”
The word, “service” according to both Marion-Webster Collegiate Dictionary and Webster New World Collegiate Dictionary generally denotes some helpful act or an act giving assistance or advantage to another.
“Helpful,” implies that someone receives help from the act.
The verb “giving,” and the preposition “to,” indicate that the assistance or advantage is conveyed from the act to the individual.
Congress’s use of the word “service,” suggests not only that the establishment perform some action but also that the action helps or benefits the recipient. So, in the case of a “service establishment,” the establishments serve the members of the public who are helped or benefited by the service. Therefore, a “service establishment” is an establishment performing some act or work for an individual benefiting from the act or work. This construction of what is a service establishment, is essentially the same as what the 10^th Circuit came up with in Levorsen.
The word “service,” implies that the customer benefits by the act, and no such benefit occurs in the case of a customer donating blood at a plasma center.
The list of public accommodations appearing before the phrase “other service establishment,” does not include any establishment providing a service without a detectable benefit to the customer.
The structure of the ADA itself indicates that an establishment typically does not pay a customer for services it provides.
When it comes to a service provided by a service establishment, customarily, the service flows from the establishment to an individual. In this situation, donors receive no obvious benefit or help that makes the plasma collection center’s act a service. For example, donors do not have the plasma earmarked for themselves or to a specific third party for whom they are concerned. Rather, the plasma becomes the property of the plasma collection center to do with whatever it wants.
The labor furnished when donating blood is not useful to the donor, it is useful to the establishment, and the payment of money to the donor is wholly collateral to the act of plasma collection.
The canon of construction ejusdem generis says that a catchall phrase should be read in light of the preceding list. So, while the ADA itself says that the statute is to be liberally construed, that does not mean a court can come up with a construction that is untethered from its text.
If Congress wanted to cover all establishments, it could have done so by omitting the word service.
Legislative history is of no help to the plaintiffs. In a footnote, the court noted that it was essentially doing what the legislative history called for by trying to figure out what the overall category meant rather than whether particular places were service establishments.
Each of the items listed in 42 U.S.C. §12181(7)(F) involves an establishment acting in some way that benefit individuals. That is: dry cleaners press customer shirts; lawyers file pleadings; hospitals mend patients broken bones, etc. In each of these situations, the establishment performs an action directly benefiting the individual. A plasma collection center does not provide any such benefits to its donors.
While it is true that lawyers may work on a pro bono basis, that doesn’t change the fact that lawyers are working unambiguously to benefit clients, and therefore are performing a service.
While it is true that banks may pay customers through interest on savings, any payment they receive is not a result of the customer’s labor, but rather is the result of the act the bank performs to serve the customer. That is simply not the case with plasma centers where the plasma belongs to the plasma collection center, and the plasma collection center does not manage or oversee the plasma on behalf of the donor.
Paying for plasma donation is governed by other provisions of the ADA. In particular, that is more akin to employment or contract work, not to the provision of services to a customer.
Customers are purchasers of goods and services, while an employee is a person working for an employer for wage or salary. So, whether a person is being paid is relevant because it can indicate whether an individual was a customer or is instead an employee or other hired laborer.
With respect to the ADA, it is title I that applies to employment relationships, while it is title III that applies to places of public accommodations, which includes service establishments.
Interpreting service establishments and title III extremely broadly so that it includes employment and employment like relationships, risks overrunning Congress’s legislative choices in coming up with title I. In fact, it would make title I largely redundant by turning virtually every employer and entrepreneur into a service establishment.
Payment to or by the establishment is highly relevant for determining whether an establishment provides a service to a customer, and is therefore a service establishment.

III

Court’s Reasoning with Respect to the Texas Human Resources Code Claim

The Texas Human Resources Code differs significantly from the ADA. For example, it was enacted before the ADA and was not split into various titles covering distinctly different activities.
The Texas Human Resources Code use a different term to define its scope. For instance, instead of applying to public accommodations, 121.003(a) applies to public facilities. Further, the term, “public facility” per §121.002(5), is defined in an entirely different manner than “public accommodation,” under the ADA.
The Supreme Court of Texas has said that because the differences are so stark, it will not look to federal court interpretations of public accommodations when interpreting the term “public facility,” under the Texas Human Resources Code. So, it simply cannot be assumed that because CSL Plasma is not a place of public accommodation under the ADA, that it isn’t a public facility under the Texas Human Resources Code.
Texas courts have not interpreted the term, “public facility” often, apparently only once in a completely different context.
The Texas Constitution grants the Supreme Court of Texas the power to answer questions of state law certified by a federal appellate court. In deciding whether such certification is proper the following factors are considered: 1) the closeness of the question and the existence of sufficient sources of State law; 2) the degree to which considerations of comity are relevant in light of the particular issue and the case to be decided; and 3) practical limitations of the certification process: significant delay and possible inability to frame the issue so as to produce a helpful response on the part of the State court. When all of these factors are applied, certification is appropriate because: no State law guidance exists, and the federal analogue is not analogous; the answer to just what is a service establishment under Texas law could either impose future liability on many Texas businesses or preclude Texans from relying on an important antidiscrimination statute; and there is no hardship in certifying the question since it is possible to formulate discrete issues for consideration by the Supreme Court of Texas. Finally, neither party presented any reasons not to certify the relevant questions as to the Supreme Court of Texas.
With respect to what questions are certified to the Supreme Court of Texas, they are: 1) is a plasma collection center a “public facility,” under §121.002(5) of the Texas Human Resources Code?; 2) if so, does Texas law allow the plasma collection center to reject a person with a disability based upon the center’s concern for the individual’s health stemming from the disability? Further, what standard applies for determining whether the plasma collection center properly rejected the person rather than committed impermissible discrimination under §121.003(a) of the Texas Human Resources Code. Finally, the Supreme Court of Texas may certainly not confine its reply to the precise questions certified by the Fifth Circuit.

Could a Donor of Blood Really Be an Employee?

Much is made in this decision about the structure of the ADA and how a person donating plasma resembles an employee more than anything else. Could that person be an employee of the plasma center? There are various tests that can be used to figure out whether a person is an employee. A common one is whether the employer controls when, where, and how to do the job. When I was a general counsel to two different mental health mental retardation authorities in Texas many many moons ago, this was an issue that I dealt with constantly because we utilized a tremendous amount of independent contractors to provide services to the clients of the mental health and mental retardation authority. I always used Revenue Ruling 87-41’s 20 factor test to figure out whether the person was an employee or not. I thought it would make sense to discuss those factors here:
Instructions: is the worker required to comply with other persons instructions about when, where, and how he or she is to work? If so, you have an employee. This factor seems to cut against employee status because the person donating blood can show up to the plasma center whenever they feel like it.
Training: training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meeting, or by using other methods, indicates that the person for whom the services are performed want the services performed in a particular method or manner. This factor cuts against employee status because nothing of this kind is going on when donating plasma.
Integration: integration of the worker services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, workers performing those services must necessarily be subject to a certain amount of control by the owner of the business. This one is a bit odd in the plasma donation context. Clearly, without the donor, the plasma center has no business at all. On the other hand, in the traditional sense of the term, you would be hard-pressed to say that the plasma center has direction and control over the employee in the way this paragraph would customarily refer to the term.
Services rendered personally: if the services must be rendered personally, normally the person for whom the services are performed are interested in the methods used to accomplish the work as well as in the results. With respect to this factor, services are certainly being rendered personally, but the hiring entity is certainly not interested in the methods used to accomplish the work. They are interested in the results.
Hiring, supervising, and paying assistants: if the person for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. This factor is not applicable to the person donating blood at a plasma center and certainly cuts against an employment relationship.
Continuing relationship: a continuing relationship between the worker and the person for whom the services are performed indicates that an employer employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals. This factor works in favor of the employment relationship.
Hours of work: the establishment of set hours of work by the hiring entity from the services are performed as a factor indicating control. This factor cuts against an employment relationship because there are no set hours of work.
Full time required: if the worker must devote substantially full-time to the business that restricts the worker from doing other gainful work. This factor also cuts against an employment relationship as donors of blood are not working full time in that capacity nor could they be.
Doing work on employer’s premises: if the work is performed on the premises of the person or person for whom the services are performed, that factor shows control over the worker, especially if the work could be done elsewhere. Control over the place of work is indicated when the person for whom the services are performed, such as the right to compel the worker to travel a designated route, to canvas a territory within a certain time, or to work at specific places as required. With respect to this factor, the work must be performed on the premises, but it can’t be done elsewhere except at another plasma center. Further, this is not a situation where the donor of blood is having to travel designated routes, canvas a territory, or work at specific places.
Order or sequence set: if a worker must perform services in the order or sequence set by the person for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person for whom the services are performed. Taken literally, this factor cuts in favor of the employment relationship.
Oral or written reports: a requirement that the worker submit regular written reports to the person for whom the services are performed indicate a degree of control. This factor cuts against an employment relationship because no written reports or oral reports are occurring.
Payment by hour, week, month: payment by the hour, week, or month generally point to an employer-employee relationship. With respect to this factor, the person is being paid every time they donate blood. So, this factor also cuts against the employment relationship.
Payment of business and/or traveling expenses: if the person for whom the services are performed ordinarily the worker’s business and/or traveling expenses, the worker is ordinarily an employee. That is simply not what is going on here with respect to someone who would donating blood, and therefore, this factor cuts against the employment relationship.
Furnishing of tools and materials: the fact that the person for whom the services are performed furnishes significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. This factor works in favor of an employment relationship because the donator of the blood is not furnishing any tools or materials him or herself.
Significant investment: if the worker invests in facilities used by the worker in performing services and are not typically maintained by employees, that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person for whom the services are performed for such facility and thereby indicate the existence of an employer employee relationship. This factor cuts in favor of an employment relationship.
Realization of profit or loss: a worker who can realize a profit or suffer a loss as a result of the worker’s services is generally an independent contractor, but the worker who cannot is an employee. This factor also cuts in favor of an employment relationship because the person donating blood is receiving a take it or leave fee for the donation.
Working for more than one firm at a time: if a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, that factor generally indicate the worker is an independent contractor. That said, it is possible that such a worker could be an employee of more than one person. This factor doesn’t cut either way.
Making service available to general public: the fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship. This factor cuts in favor of the employment relationship as services are not being made available to the general public.
Right to discharge: the right to discharge a worker is a factor indicating that the worker is an employee in the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meet the contract specifications. Here, a plasma center might refuse to provide its services to a person wanting to donate blood. So, you might argue that the person is being fired, but each time a person wants to donate blood, it starts another relationship. So, my view is that this factor cuts against an employment relationship.
Right to terminate: if the worker had the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer employee relationship. This factor cuts in favor of an employment relationship as certainly the person donating blood can end the relationship at any time they want for any reason without incurring liability. All they have to do not show up.
When I was doing this all the time, what I would do is add up the factors and see how many were on each side of the ledger. Keep in mind, it is a holistic question and there are situations were even though you have more factors on one side of the ledger than the other, you may still decide for the side of the ledger having fewer amount of factors. Also, in close calls, you’re probably better off erring on the side of an employment relationship. Adding up the factors here, I get 10 factors indicating that an employment relationship does not exist and 10 factors indicating that an employment relationship may well exist. So, now what? Well, the Fifth Circuit opinion gives an opening for plasma donors to argue that they are entitled to title I of the ADA protections. Will this opinion create lots of litigation over whether plasma donors are employees given our analysis of the 20 factors? It might.

Takeaways:

Revenue Ruling 87-41 isn’t the only test out there. The Department of Labor has its own tests. Fascinating that when I applied Revenue Ruling 87-41 tests to this situation, I wound up with roughly an even split. That means, plasma centers may want to have their legal counsel evaluate as to what their tax liability is with respect to paying donors. They may also want to have legal counsel evaluate whether the donors are employees for other purposes. Finally, they may be dealing with title I liability when they deny donors with disabilities the right to donate their blood.
Silguero and Levorsen are in direct conflict with each other and cannot be reconciled. This means it is teed up for the Supreme Court. How will the Supreme Court decide? That is anybody’s guess. As I have mentioned numerous times before, persons with disabilities have been very successful at the Supreme Court outside of the employment context. There are now new Justices on the Supreme Court. Impossible to say how Justice Kavanagh might analyze it. With respect to Justice Gorsuch, also very difficult to say. I do think he as well as Justice Kavanagh may be receptive to eujesdim generis, but as we discussed in this blog entry, Justice Gorsuch is not afraid to use common sense when deciding things. Swing vote is likely to be Justice Roberts with Justice Gorsuch a wild card. Also, it bears noting that the Department of Justice filed an amicus brief in the Fifth Circuit case stating that plasma centers are places of public accommodations. If they maintain that at the Supreme Court level, that may be very persuasive.
While when I applied the 20 factor test, I got an even split, intuitively it would seem that the donor of blood plasma would not be an employee. If they are indeed an employee, that opens up a tremendous can of worms, even more so than the can of worms the Fifth Circuit said it would open if it agreed with Levorsen.
Not covered in the decision was whether even assuming a plasma center is a place of public accommodation, could there be health and safety regulations that would allow the plasma center to prohibit certain people with disabilities from donating? That may or may not be the case.
If a plasma center is not a place of public accommodation and the person donating blood is not an employee, do they have any recourse for disability discrimination? Well, chances are the plasma center takes federal funds. If so, this blog entry might be of help.
Never forget about your own State law.

Countering Defenses to Website Accessibility Motion to Dismiss

July 1, 2017 by William Goren 1 Comment

I know I promised that I would not have a blog this week. However, with the bat mitzvah a week from today, I am going out of my mind. Believe it or not, blogging relaxes me. Also, my wife and daughter are out shopping for the bat mitzvah leaving me alone with my miniature poodle. So, why not. But before moving on to the blog entry, it is that time of the year again to request your vote for the ABA Top 100. I have been fortunate to be an ABA top 100 legal blawg for the last three years and would love to be part of it again. This year your vote is even more important because what the ABA has done is extend the top 100 to law firm sites, podcasts, etc. as well as blogs. That means there may be a lot less blogs in the top 100 than there used to be. So, if you are inclined and enjoy this blog, please fill out the form and vote here.

Today’s case, a link to that case can be found courtesy of Epstein Becker Green’s Lexology entry here, came to my attention from Seyfarth Shaw’s blog, one of the blogs in my blogroll, and represents a contrary view to the cases that I discussed in this blog entry. As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning due process; court’s reasoning primary jurisdiction; and takeaways. The reader is free to focus on any or all of the categories.

Facts

The facts are pretty straightforward. A legally blind individual Jaws user could not fully access the Hobby lobby website. As a result; he could not use the find a store location feature, and the gift card page, in addition to being confusing, did not allow him to purchase products from the website as the checkout feature did not work properly. Hobby Lobby moved to dismiss on due process grounds and on the primary jurisdiction doctrine. The court did not buy Hobby Lobby’s arguments and reasoned as follows:

Court’s Reasoning Due Process

Hobby Lobby’s physical stores are a place of public accommodation.
The parties agreed that for purposes of the motion to dismiss that the website was a service, privilege, or advantage of the physical stores and therefore subject to the ADA.
In a footnote, the court notes that Hobby Lobby at summary judgment intends to argue that the website operates independently from its stores and so therefore, is not subject to the ADA.
The lack of specific regulation does not eliminate Hobby Lobby’s obligation to comply with the ADA. While regulations amplify and augment statutory requirements, they do not displace statutory mandates.
DOJ has consistently over the years, including as far back as 1996, has affirmed that title III applies to websites meeting the definition of a public accommodation.
DOJ has also filed numerous amicus briefs and statements of interest in many lawsuits reiterating its position that the ADA applies to websites meeting the definition of a public accommodation and has initiated enforcement action to force compliance.
Back in 2010, DOJ issued an advanced notice of proposed rulemaking on website accessibility and noted in that document it was of the view the ADA’s broad and expansive nondiscrimination mandate extended to goods and services provided by covered entities on websites over the Internet.
The notice of proposed rulemaking specifically mentioned web content accessibility guidelines.
Title III’s prohibition on discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services, including where necessary to ensure effective communication, imposes an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have as full and equal enjoyment of their websites as individuals without disabilities.
The prohibition against discrimination in the enjoyment of goods, services, facilities or privileges means that whatever goods or services a place of public accommodation provides, it cannot discriminate on the basis of disability in providing enjoyment of the goods and services.
Due process argument doesn’t work because it has been clear for some time that a place of public accommodation must have its website accessible to persons with disabilities and persons with disabilities must have equal enjoyment of the website as individuals without disabilities.
Hobby Lobby is free to decide how to comply with the ADA since the DOJ has not imposed any specific compliance means. Just because there is flexibility in figuring out how to comply with the statute, that is an entirely different question from whether compliance is mandated in the first place. Accordingly, for due process purposes, the notice is whether Hobby Lobby knew it had to comply with the ADA and not whether it knows how it must comply with the ADA.
Hobby Lobby arguments in some ways are premature as they go to the crafting of a remedy. When it come to the remedies point in time, the court will consider carefully what level of accessibility applies to the website.

IIB

Primary Jurisdiction

Plaintiff is not asking the court to fashion a remedy adopting a specific technical rule, but rather is asking the court to require Hobby Lobby to comply with DOJ’s directive that individuals with disabilities have equal enjoyment of its website as individuals without disabilities.
Neither of the requirements for the primary jurisdiction doctrine are present in this case (the promotion of uniformity in determining administrative questions, and the need for highly specialized expertise).
The potential for delay while the federal administrative rulemaking process proceeds is great. That is, since the DOJ issued the notice of proposed rulemaking in 2010, it hasn’t taken any further action towards promulgating specific accessibility requirements and no reason exists to believe DOJ will issue rules anytime in the near future.

Takeaways:

Within the same District of California, you have cases going both ways.
On the plaintiff’s side, this case makes an important distinction that due process notice is not the how to comply but whether to comply at all. Clearly, there was plenty of notice that compliance was required.
The case references Target and so presumably falls within the gateway theory of when a website must be accessible to persons with disabilities. Gorecki, the case that is the subject of this blog entry, doesn’t explicitly say how it goes about deciding whether the website is a place of public accommodation. The gateway theory does mean that even if the website is independent of its stores, it still may nevertheless be acting as a gateway to the stores. It will be interesting to see what the court does with this on summary judgment.
The court was simply not willing to give a get out of jail free card to the defendant just because DOJ has not issued any regulations on the subject and is not likely to issue any regulations soon.
42 U.S.C. §12182(b)(1)(A)(ii) states, “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” The effect of this clause is to bring into question the general requirements that title II and title III require meaningful access. Meaningful access might mean something less than being equal to what is afforded to individuals without disabilities. This court is essentially saying that this provision of the ADA and the proposed regulations implementing this statutory provision trumps meaningful access.
On the defense side, if you get hit with a website accessibility lawsuit, your approach would be: 1) argue that the website is not a place of public accommodation; 2) argue due process; and 3) argue primary jurisdiction doctrine. On the plaintiff’s side you want to use this case to argue that due process and the primary jurisdiction doctrine are not applicable.
With respect to whether the website is a place of public accommodation, that, as we have discussed in numerous blog entries, will depend upon the jurisdiction you are in. As mentioned in those entries, such as here, the trend is very much the gateway theory.
If you are on the defense side, don’t go assuming that the Supreme Court is going to take a narrow reading and necessarily find in your favor. The Supreme Court frequently decides for persons with disabilities, especially outside of the employment context. In fact, in the last term, the Supreme Court came down with three decisions favoring the person with a disability, all of them we discussed in this blog.
One of the things about people with disabilities, is that we silo. That is, for example, a deaf person is frequently most comfortable associating with other deaf/Deaf individuals and the same goes for other disabilities. As a result, a person of one kind of disability doesn’t always think about the other kinds of disabilities. So, when I read effective communication in this case, I was a bit startled because I don’t instinctively think of communication that way. That said, certainly a blind person using Jaws is trying to communicate with a place of business when doing so. Arguably, that is something that would fall within the effective communication rule, which we have discussed numerous times in this blog, such as here.
Justice Gorsuch is very skeptical of the power of the administrative state and would be very unlikely to be receptive to the primary jurisdiction doctrine. He might be more receptive to due process claims, but the key there will be seeing whether he buys off on the distinction that notice pertains to compliance at all and not the how of compliance. I know he has been off to a very conservative start, but a reading of his jurisprudence over time suggests that he will not always be that way depending upon the nature of the case before him.

Have a great Fourth of July everyone and don’t forget to vote for this blog for the ABA 100.

Did You Know that an Exhaustion Requirement for Title II and §504 Exists? Me Neither…

May 2, 2017 by William Goren 1 Comment

I bet you didn’t know that in some circumstances title II and §504 may contain an exhaustion requirement. The reason I’m guessing you didn’t know is that until I saw this case, Sierra v. School Board of Broward County, 2017 U.S. Dist. LEXIS 62498 (S.D. Fla. April 20, 2017), it hadn’t occurred to me either. This week’s blog entry discusses this question in the entry is divided into the following categories: facts; court’s reasoning; City of Rancho Palos Verdes v. Abrams; application of City of Rancho Palos Verdes v. Abrams; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff alleged that the school board denied him, a deaf individual, access to their archived video for streaming on demand and live streaming of their school board meetings on the basis of his disability. Plaintiff, like myself, neither understands nor uses sign language. Therefore, he requires the use of auxiliary aids and services, such as closed captioning, in order to participate in and receive the benefit of the school board’s online videos. The school board provides a video streaming service through its online portal so that any person can watch its meetings in real time and listen to and participate in those legislative decision-making activities. However, as a result of plaintiff’s disability, he can’t observe and participate in those meetings because the streaming services do not provide any auxiliary aids or services for people with hearing disabilities who do not use sign language. In particular, the streaming service does not offer closed captioning. Plaintiff had the same problem with the school board’s social networking sites on Facebook and on Twitter. The meetings plaintiff wanted to participate in are also aired later via web streaming and on the district’s internal broadcast system. That same day, the meetings are also broadcast on a tape delay on WBEC-TV at 4 PM. The following morning, the televised broadcast is then archived online and made available for viewing on the school board’s website. The defendant defended on the grounds that the Telecommunications Act mandates that a plaintiff alleging disability discrimination in this situation must first go through the Federal Communications Commission (FCC), before being able to file a claim of disability discrimination under title II of the ADA or under §504 the Rehabilitation Act.

Court’s Reasoning

In holding that exhausting internal remedies with the FCC was required before filing suit under title II of the ADA or §504 of the Rehabilitation Act, the court reasoned as follows:

In 1996, Congress passed the Telecommunications Act in an effort to secure better access the video programming for the hearing impaired (it bears noting that in the disability rights community, the more sensitive term would be hard of hearing and not hearing impaired). That legislation directed the FCC to require closed captioning for video programming broadcast on television.
In 2010, Congress enacted the CVAA (21^st Century Communications and Video Accessibility Act of 2010), which amended the Telecommunications Act and directed the FCC to modify it regulations so as to impose closed captioning requirement for certain video programming available over the Internet.
Effective April 30, 2012, the FCC implemented new regulations imposing closed captioning requirements on all nonexempt full-length video programming delivered using Internet protocol if the programming is published or exhibited on television in the United States with captions. Further, those regulations set forth provisions talking about how any complaints regarding same need to be filed with the Federal Communications Commission, what needs to be in that complaint, the process that occurs once that complaint is filed, and a statement that the FCC is vested with the exclusive jurisdiction with respect to any such complaints. 47 C.F.R. §79.4.
The CVAA is Congress’s most recent and specific pronouncement regarding the duties of broadcasters to caption their programming.
Mandating that a plaintiff first file his claim with the FCC accomplishes Congress’s goal of allowing the FCC, which has expertise in this area, the opportunity to address the extent to which a broadcaster must provide close captioning.
By enacting the legislation, Congress called upon the FCC’s expertise and vested the FCC with exclusive jurisdiction to address any complaints involving a video programmer’s compliance with the CVAA’s administrative remedy for pursuing any claim under the ADA or §505 (§504 remedies provision), of the Rehabilitation Act.
The existence of an administrative complaint procedure under the CVAA is entirely consistent with a private right of action under the ADA for the same wrong.
All the court is doing is delaying plaintiff’s prosecution of the claims until such time as the plaintiff has exhausted his administrative remedies under the CVAA thereby providing the FTC an opportunity to address those complaints. Once that process is completed, plaintiff is free to refile claims as necessary. In this way, the CVAA’s intended purpose is accomplished while preserving plaintiff’s rights under the ADA and §505 the Rehabilitation Act.

III

City of Rancho Palos Verdes v. Abrams

Whether Sierra holds up is going to come down to how the courts interpret United States Supreme Court case of City of Rancho Palos Verdes v. Abrams. In that case, a person decided to erect all kinds of communication towers on his land and drew considerable grief from the city for doing so. In fact, things got so bad that he filed a §1983 cause of action against the City. It went all the way to the United States Supreme Court. That decision is critical to understanding whether the case we are discussing today will hold up. In particular, the United States Supreme Court said the following in holding that a §1983 action would not fly.

The critical question is whether Congress intended for the remedies in the Telecommunications Act of 1996 to coexist with an alternative remedy in a §1983 action.
Decisions saying that §1983 action are unavailable to remedy violations of federal statutory rights focus on the existence of a more restrictive remedy provided in the violated statute itself (emphasis added).
In all of the cases where the United States Supreme Court has held that §1983 is available for a violation of federal statute, it has emphasized that the statute (emphasis added), at issue did not provide a private judicial remedy or even, in many cases, a private administrative remedy for the rights violated.
Where §1983 remedies were held not to be available, the statute at issue themselves (emphasis added), provided for private judicial remedies thereby evidencing congressional intent to supplant §1983.
The ordinary inference that the remedy provided in the statute is exclusive can be overcome by express or implicit textual indication that the remedy complements rather than supplants §1983.

In a concurrence by Justice Breyer and Justice Stevens, they noted the following:

The statute’s text, structure, and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 with respect to the facts before it, operates as a comprehensive and exclusive remedial scheme. The statute’s structure appears fundamentally incompatible with the private remedy offered by §1983.
Since 1871, §1983 has stood as an independent safeguard against the deprivations of federal constitutional and statutory rights.
Only in an exceptional case, involving unusually comprehensive and exclusive statutory scheme, will the Supreme Court be likely to conclude that a given statute impliedly forecloses a §1983 remedy.
While the heavy burden was met in Sierra, there will be many instances where §1983 will be available even though Congress had not explicitly so provided in the text of the statute in question.
The majority opinion incorrectly assumes that legislative history of the statute is totally irrelevant. That assumption is contrary to nearly every case the Supreme Court had decided in this area of the law, all of which surveyed or at least acknowledged, the available legislative history or lack thereof.

Application of City of Rancho Palos Verdes v. Abrams

A strong argument can be created that applying City of Rancho Palos Verdes v. Abrams majority and concurring opinions leads to the conclusion that the CVAA does not set up a situation whereby exhaustion of FCC proceedings is required. The reasoning goes as follows:

47 U.S.C. §151, which establishes the Federal Communications Commission, doesn’t even have within it coverage of persons with disabilities. On the other hand, as we know, the ADA and the Rehabilitation Act are comprehensive schemes designed to redress disability discrimination throughout society and allow for integration of persons with disabilities into all aspects of society.
47 U.S.C. §152 says that the Act applies to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio originating or being received within the United States. This statute was last amended in 1993 just when the Internet was beginning to take off and certainly could not be intended to apply to the Sierra situation.
47 U.S.C. §613 mandates that the Federal Communications Commission come up with regulations dealing with close captioning and goes into elaborate detail as to the scope of those regulations. 47 U.S.C. §618 is the enforcement provisions. However, nothing in either statute talks about how the FCC has exclusive jurisdiction on such matters. The exclusive jurisdiction language, as far as I can tell after going through the Act, comes from the regulations at 47 C.F.R. §79.4(f) and not from the statute itself.
Since the exclusive jurisdiction language does not come from the statute itself, Chevron deference is not in order.
Since the exclusive jurisdiction language does not come from the statute itself, the CVAA per City of Rancho Palos Verdes does not require that claims under the ADA and §505 be exhausted through the FCC first.

Takeaways:

I definitely look for Sierra, or cases decided like it, to go all the way to the United States Supreme Court. The next stop is the 11^th Circuit, assuming an appeal. It will be interesting to see if a Circuit Court split develops. Cases like this have not reached the Circuit Court level yet.
A key person on this question, whenever it gets to the United States Supreme Court is going to be Justice Gorsuch. He is on record, as discussed here, as not being a fan of Chevron Also, as discussed in that blog entry, he is extremely literal about statutes. So, if the current makeup of the court stays the same on this particular issue, you may very well get a decision looking like 5-4 or considering the vibe from Fry and Endrew, 6-3 or even 7-2. Of course, this case is a long way from the United States Supreme Court and the makeup of the court may change before then. Keep in mind, plaintiffs with disabilities have fared very well at the United States Supreme Court in nonemployment matters, including prevailing three times this term.
For public entities not desirous of having their meetings streamed with close captioned, if they can get their meetings onto TV and get a court to buy off on Sierra, they can force a plaintiff to go through the FCC administrative process thereby delaying any ADA or Rehabilitation Act enforcement. Of course, that is a separate question from why a public entity would want to take this approach as dealing with the FCC would have to be a very expensive proposition.

justice gorsuch

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