Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

regulation

The violation of a regulation implementing the ADA create a private remedy

by 2 Comments

Over the years, it isn’t often that I see a missed opportunity (see below for a further discussion of whether an opportunity was really missed here), by a defendant in an ADA case to make a plaintiff’s litigation more difficult when the law allows them to do so. It is possible (though a for sure determination of that would depend upon further research and application of the principles that we will discuss below), that Scherr v. Marriott International, Inc., may or may not be such a case. In that case, the plaintiff, 76 years old at the time of the accident and suffering from a neurodegenerative disorder, stayed at a Marriott hotel, a Courtyard, in Overland Park, Kansas. The hotel had recently undergone renovations, and the hotel had installed spring-hinged door closers on the bathroom doors of some of its rooms, including the ADA compliant room assigned to the plaintiff. The spring hinge closed the door automatically when a person let go of the door. While attempting to exit the bathroom door, which she had pushed open and then released in order to use her walker, the door quickly slammed shut on her, striking her and knocking her down resulting in surgery for a broken wrist and an injured hip. She then sued Marriott for personal injuries, which settled. Just prior to settling the personal injury suit, she brought suit under title III of the ADA seeking injunctive relief against the Marriott that she stayed at as well as many other Courtyards by Marriott for using the spring-hinge door closers that resulted in her injury.

You can find the facts of this case referenced above at Scherr v. Marriott International, Inc._F.3d_, 2013 WL 57857 (7th Cir. January 7, 2013).

Also, with respect to the many different Marriott’s that she brought suit against, there was a standing issue that the court discussed (the court holding that she had standing with respect to the Overland Park, Marriott but not with respect to the other Marriott that she sued). However, that standing issue is not important for purposes of this blog entry.

Whenever a title II or title III entity engages in new construction or renovations, that construction or renovation must be done in a way consistent with the guidelines put forth by the Architectural and Transportation Barriers Compliance Board (the guidelines being referred to as the Americans With Disabilities Act Accessibility Guidelines (ADAAG)). The problem is is that the guidelines changed over the years with respect to spring hinged doors. For example, the 1991 standards did not have a separate closing speed specified for spring hinges and did not discriminate between spring hinges and other types of door closers, such as hydraulic door closers. Id. at *6. However, the 2010 standards do in fact set out separate closing speeds for spring hinges and door closers. Id. To the court’s mind, the issue came down to whether the spring hinge should be evaluated according to the spring hinge standard or according to the door closer standard. The plaintiff argued that since the spring hinge was acting as a door closer, the proper standard was the door closer standard, which insisted upon a slower closing speed than the spring hinge standard. Id. at *7. However, the court decided that a plain reading of these guidelines was such that spring hinges provision was the standard and that Marriott International complied with that standard. Id. Therefore, the plaintiff had no case for a title III violation against Marriott because Marriott International had complied with the standard. Id.

The possible (see below), missed opportunity for the defense was this. In Scherr, everyone just seemed to assume that the regulation created a private remedy. That is, the argument was not over whether the plaintiff could sue for a violation of the ADAAG, but rather what was the meaning of various provisions of the ADAAG. However, Supreme Court precedent and case law is such that the defense may not necessarily have had to concede the point. That is, a regulation may be a perfectly permissible regulation. In other words, it may be a regulation that carries out the intent of the statute and has been promulgated after going through the rulemaking process. However, that is simply not the same thing as saying that violation of the regulation gives an individual plaintiff a private remedy for the violation of that provision. To determine whether a private remedy exists, a court must look to the statute itself to figure out whether the statute is laid out in such a way so as to evidence Congress’s intent to create a private remedy for that regulation.See Alexander v. Sandoval 532 U.S. 275, 286-287 (2001). In other words, only those regulations effectuating the statute’s clear prohibition or requirements are the ones enforceable through a private remedy and those regulations that do not encapsulate those statutory rights are not privately enforceable. Lonberg v. City of Riverside 571 F.3d 846, 851 (9th Cir. 2009). Therefore, by way of example, a Western District of Washington case held that no private remedy existed with respect to a paratransit service violating several regulations with respect to passenger safety because the specific regulations had nothing to do with whether the defendant provided an appropriate level of service, the topic of the statute at issue. Donnelly v. Intercity Transit 2012 WL 5567981 (W.D. Wash. November 15, 2012). In another case, the Ninth Circuit held that no private remedy existed with respect to the City of Riverside’s failure to develop a transition plan because the statute from which the transition plan regulations derived said nothing about a public entity’s obligation to draft a detailed plan and schedule for achieving meaningful access. Lonberg 571 F.3d at 851-852.

But was the opportunity really missed? With respect to a title III matter, which is the situation in Scherr,the answer could well be no. Under the discussion above, we first have to look at a statute and then compare that statute to the regulations to see if a private remedy exists. With respect to title II of the ADA, the Architectural and Transportation Barriers Compliance Board is specifically mentioned mentioned at 42 U.S.C. §§ 12204, and with respect to title III of the ADA, the Architectural and Transportation Barriers Compliance Board is mentioned at 42 U.S.C. §12186(c). Accordingly, since the statutory scheme is set up the way it is, a strong argument can be made that with respect to facilities under Title II or III of the ADA, a private remedy does exist should the architectural guidelines be violated. However, once you move away from the situation where the architectural guidelines come into play, you may get a different answer as was the case in Donnelly and Lonberg mentioned above.

Putting this into plain english: This stuff can get technical so let’s see if we can break it down. First, in many cases, it really isn’t necessary to rely on the regulations as the basis for arguing that the Americans with Disabilities Act has been violated. The statutes are very comprehensive and oftentimes the regulations are narrowly focused on interpreting the various provisions of the statute.

Second, if you are plaintiff, and you allege that the Americans with Disabilities Act was violated because of specific regulations being violated, then you have to be prepared for the defendant to argue that no private remedy exists. That is, the regulation may or may not be perfectly valid (it is a basic principle of administrative law that regulations that have gone through the rulemaking process and which contain regulations going no further than to carry out the intent of the legislature are going to be valid), but that is quite a different question than whether an individual can use those regulations as a basis for saying that, for example, the ADA has been violated and a private remedy is allowed for enforcing that regulation.

Third, on the defense side, if you do see a complaint saying that certain specific regulations have been violated thereby liability should be awarded to the plaintiff, you (the defense), are going to have to study the statute at issue and then see just how closely the particular regulations implement that statute. If the connection is not intuitive, you (the defense), have an argument than that while the statute may be perfectly valid, that is not the same thing as saying a private remedy for that statute exists.

Fourth, the key word is, “private remedy.” Since that is the term being used, this kind of defense is not going to work should the regulatory body itself sue on its own behalf for violation of the regulations that it promulgated. In that case, then it would be a matter of saying that the regulation, despite having gone through rulemaking, is invalid (a very difficult thing to pull off because you have to show that the regulation is arbitrary).

Fifth, study the statutes and regulations carefully as all this may play out differently depending upon whether you are talking about violating architectural guidelines or violating something else.

Finally, another lesson learned from all of this, one that applies regardless of whether a private remedy exists, is that everyone needs to follow the regulatory process very closely. As mentioned above, rulemaking is a process. For those not familiar, the process generally includes proposing the regulation, receiving comments on the regulations, and then responding and finalizing the regulations. At the commenting stage, regulatory bodies are truly quite interested in what interested parties have to say. After all, it simply doesn’t do the regulatory body any good to issue regulations that they know are going to be unworkable. Therefore, it is at that stage that people should jump in and explain the issues. For example, if a regulation does have an inconsistency to it or an ambiguity to it, as was the case in Scherr, it is in the commenting period stage that is the time to catch that and notify the regulatory body of such.

Licensing regulations and the Americans With Disabilities Act

by 3 Comments

Recently, the New York Times reported that a federal judge ruled that the city of New York must start approving taxi medallions so that more taxis were wheelchair accessible. After reading the article, I decided to go to the case itself, Noel V. New York City Taxi and Limousine Commission, 2011 WL 6747466 (S.D. N.Y. December 23, 2011). In this case, the plaintiffs sued the New York City Taxi and Limousine Commission because their regulations were not set up to approve a sufficient number of taxis that were wheelchair accessible. Interestingly enough, the Commission defended on the grounds that title II of the ADA did not apply to them. There were two possible ways title II could apply.  First, there is a section of title II that applies to public entities operating a demand responsive system. Second, and more common, is that title II demands that governmental entities be accessible to persons with disabilities. With respect to the first issue, the court decided that the Commission was not operating a demand responsive system (which would have required that each and every taxi be wheelchair accessible), and therefore, the provisions of the Americans with Disabilities Act pertaining to a demand responsive system did not apply. However, the court did find that the Commission was a public entity subject to title II of the Americans with Disabilities Act, and therefore, its operations must be accessible to persons with disabilities. The Commission admitted that it had both the ability and authority to provide more wheelchair accessible vehicles but simply had chosen not to do so. Therefore, only 232 taxi cabs in New York out of 13,237 were accessible to individuals using wheelchairs. The court held that the Commission did not provide meaningful access to this public benefit. Therefore the court ordered that the Commission to propose a comprehensive plan that provides meaningful access to taxi services for passengers using wheelchairs. The plan must include targeted goals and standards as well as anticipated measurable results. Furthermore, until such a plan was proposed and approved by the court, all new taxi medallions sold or new street hail livery licenses or permits issued by the Commission must be for wheelchair accessible vehicles. No doubt this is a great victory for persons with disabilities.

However the question becomes where did the “meaningful access” standard come from? That, is an interesting story. Noel relies on another case, Henrietta D v. Guilani, 119 F. Supp. 2d 181 (E.D.N.Y. 2000), where the court held that a city program that provided federal and state benefits for individuals suffering from AIDS was run in such a way that the beneficiaries of that program lacked meaningful access to it. This decision relied on Alexander v. Choate, 469 U.S. 287 (1985), a Rehabilitation Act case, which upheld a Tennessee reduction of annual inpatient hospital days that the Tennessee Medicaid program would pay. It is there that the, “meaningful access” phrase first appears. It appears in the context of saying that the reduction in hospital stays is a neutral decision and does not impact upon whether a person with a disability had meaningful access to the program. Therefore, one can see that in Noel the term, “meaningful access” is being used quite a bit differently than what it had been used in prior case law.

What does this all mean? It is very strange in a way. The Commission never argued at the lower level that summary judgment should be denied because a question of fact existed as to whether the program and activities of the Commission were accessible to persons with disabilities or whether there were other ways that could be formulated so that the program and activities of the Commission could be accessible to persons with disabilities, wheelchair users in this case. Perhaps, an appeal might claim that the lower court did not apply the proper legal standard (that is, “meaningful access” is being used in this case in a way different than existing precedent, and therefore, the argument goes that an appellate court should send the case back down with the correct legal standard, whatever that may be).

At any rate, a deceptively complex case, that bears following in the future. It also serves notice on regulatory bodies that their regulations should be formulated in such a way that they do not have a disparate impact on (screen out) persons with disabilities. Failure to do so, could subject the agency to a title II suit along the lines described here.

Update: During the week of March 19, the city received a stay from the Second Circuit United States Court of Appeals with respect to the District Court decision referenced here. The city has also made clear that it will be appealing the decision, perhaps along the lines discussed here.

In fact, this case was appealed and on June 28 the second circuit came down with its decision whereby the Second Circuit held that the city was not in violation of part a of title II of the Americans with Disabilities Act and that the District Court erred in granting partial summary judgment for the plaintiff and entering the temporary injunction. The Second Circuit vacated and remanded for entry of partial summary judgment for the city. In doing so, the Second Circuit had to find that the district court abused its discretion in its decision.

How did the Second Circuit go about reversing the District Court decision? First, the court noted that the Americans with Disabilities Act while broad in scope was not without its limits.

Second, the court turned to the federal regulations dealing with licenses. The court said that what this section does is prohibit the agency issuing the regulations from refusing to grant licenses to persons with disabilities who are otherwise qualified own or operate taxis but does not assist persons who are consumers of the licensee’s product. Such a conclusion was also supported by the Department of Justice’s technical assistance manual, which the court found to be persuasive authority.

Third, the court found that a program or activity of the public entity was not involved here. That is, an activity of the public entity does not become a “program or activity” of the public entity merely because it is licensed by the public entity unless the private industry practice is the result of the licensing requirements. Such was not the case here (that is, the licensing scheme did not cause the discrimination). While the number of taxis that have to be accessible were small, nothing prevented the private companies from using whatever number of accessible taxis they desired. To buttress this point, the court cited to several cases that made this distinction between the regulatory agencies and the licensees or the people being regulated themselves. They did distinguish one case that did not make that distinction, but that case was substantially different as it dealt with the situation with a private entity had to use equipment required by the public agency (machine for the state lottery in West Virginia).

Finally, an interesting question arises as to why the plaintiffs went after the public entity and not the taxi companies themselves. It turns out, as the Court notes, that federal regulations specifically exempt providers of taxi service from being required to purchase or lease accessible automobiles. Therefore, since the taxi industry is exempt from being required to purchase or lease accessible taxis, there can be no underlying violation of the ADA for a licensing authority to fail to address that by regulation.

What does this all mean? It means that for purposes of the Americans with Disabilities Act, there is a big difference between the regulations issued by a public entity and the people or entities subject to those regulations. Unless those regulations mandate discrimination, the Americans with Disabilities Act is not going to allow a title II claim to proceed. It also means that the time to ensure that the regulations increase accessibility to the maximum extent is at the time the regulations are being formulated not once they are done. For example, when a state or the federal government formulates regulations, those regulations first have to be proposed, then receive comments from the public, then those comments have to be digested by the regulatory body, and then the final regulations have to be issued. These regulations of New York were not state or federal but it is possible that prior to issuing the licensing regulations, there may have been some ability for the public to comment on the proposed licensing regulations. If not, that fact might offer grounds for attacking the regulations.