2dCir: ADA regulations are not privately enforceable

The Second Circuit held there was no private right to enforce a regulation under the Americans with Disabilities Act (ADA) regarding participation by the disabled community in decisions reducing services to the disabled. The plaintiffs also claimed the municipality violated a regulation under Part A of Title II of the ADA that required reasonable modifications to policies to avoid discrimination based on disability.

The Second Circuit dismissed this claim as well because it held that the regulation did not apply to para-transit services, which are covered under Part B of Title II, not Part A, and subject to regulation by the Secretary of Transportation rather than the Attorney General. Abrahams v MTA Long Island Bus, 2011 WL 1678417, Nos. 10–2058–cv, 10–2190–cv (2d Cir. May 5, 2011). Judge Parker, nominated by President George W. Bush, wrote the opinion of the court. Judge Raggi, another nominee of George W. Bush, and Judge Sack, nominated by President Clinton, joined the opinion.

In 1998, Nassau County of New York and MTA Long Island Bus (the “MTA”) created a para-transit service called “Able-Ride.” The program offered door to door transportation to disabled residents anywhere within the county. The ADA requires that governments offer special services to disabled individuals to ensure they have a comparable level of access to transportation. 49 C.F.R. § 37.3. However the regulations only require municipalities to provide such services within three quarters of a mile of the regular fixed routes the municipalities already operate. 49 C.F.R. § 37.131. The Nassau County and MTA program went beyond the ADA requirements.

Unfortunately because of budget constraints, the MTA decided in 2010 to cut the Able-Ride service and only provide the service in the areas required by the ADA. A group of disabled residents of Nassau County who qualify to use the Able-Ride service brought a lawsuit. They claimed that the MTA failed to follow procedures that municipalities must follow when they plan to cut services to disabled individuals. These procedures mandated that municipalities consult with the users of a service for the disabled before cutting it. 49 C.F.R. § 37.137(c). They also claimed that the MTA and the County had failed to provide “reasonable modifications” to its plans as required by 28 C.F.R. § 35.130(b)(7). The district court dismissed their complaint under Federal Rule of Civil Procedure 12(b)(6), and the plaintiffs appealed.

The court of appeals first examined whether there is a private right of action to enforce the regulation that requires public participation in decisions to cut services. 49 C.F.R. § 37.137(c). The court applied the Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001). According to the court, even if a federal statute provides a right that is privately enforceable, a regulation that implements the statute does not necessarily also provide a privately enforceable right as well. If the regulation provides rights that are broader than those provided in the statute, the expanded rights are not privately enforceable. In this case, the court concluded the underlying statute, 42 U.S.C. § 12143, does provide a privately enforceable right. However, the statute only requires public participation when a municipality is preparing a program, not when maintaining or changing an ongoing program. The regulation, in contrast, requires ongoing public participation, and therefore extends more broadly than the underlying statute. 49 C.F.R. § 37.137(c). Those broader rights are not, according to the Second Circuit, privately enforceable.

In its opinion, the Second Circuit cited decisions of other courts of appeals refusing to permit private enforcement of ADA regulations.  The Supreme Court denied certiorari in Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009), 131 S.Ct. 78 (2010). Rehearing en banc is pending in Am. Ass’n of People with Disabilities v. Harris, 605 F.3d 1124 (11th Cir. 2010).

The court then examined whether 28 C.F.R. § 35.130(b)(7) required the MTA and the County to make modifications to the Able-Ride program. The regulation requires public entities to make reasonable modifications to programs when necessary to avoid discrimination on the basis of disability. The Attorney General has the exclusive authority to promulgate such regulations under Part A of Title II of the ADA. 42 U.S.C. § 12134(a). However another statute gives the Secretary of Transportation exclusive authority to promulgate regulations about paratransit services under Part B of Title II. 42 U.S.C. §§ 12134(b), 12149, 12146. As of the litigation, the Secretary of Transportation had not created any regulation requiring reasonable modifications to policies under Part B of Title II. The plaintiffs argued that the Attorney General’s regulation applied to para-transit services. The court disagreed. It cited 42 U.S.C. § 12134(a), which states that the regulations the Attorney General promulgates do not include “any matter within the scope of authority of the Secretary of Transportation.” Since para-transit services fall within the scope of authority of the Secretary of Transportation, the regulation that the Attorney General passed did not apply to para-transit services. The DOJ also has its own regulation that states its regulations do not apply to Part B of Title II of the ADA, which covers para-transit services.

The court affirmed the district court’s decision to dismiss the plaintiffs claims for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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