BENAVIDES and PRADO, Circuit Judges:
Title II of the Americans with Disabilities Act (ADA),
We must resolve two issues. First, we must determine whether Title II and § 504 (and their implied private right of action) extend to newly built and altered public sidewalks.
The plaintiffs in this case depend on motorized wheelchairs for mobility. They allege that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks allegedly were built or altered by the City after Title II became effective on January 26, 1992.
The district court dismissed the plaintiffs' complaint on statute-of-limitations grounds. The district court determined that the plaintiffs' claims accrued, and the relevant two-year limitations period began to run, on the date the City finished building or altering any inaccessible sidewalk. After requiring the plaintiffs to "replead their case and allege specific dates of the City's alteration or construction efforts," the district court dismissed the complaint because it did not allege dates of construction or alteration within two years of July 22, 2005.
On appeal, a panel of this Court began by considering whether the plaintiffs had a private right of action to enforce Title II with respect to inaccessible sidewalks. The panel unanimously held that the plaintiffs had such a right because public sidewalks are "services, programs, or activities" of a public entity within the plain meaning of Title II.
Both parties petitioned for rehearing en banc. The panel majority withdrew its initial opinion and issued a revised opinion.
We granted the plaintiffs' second petition for rehearing en banc. At oral argument, the plaintiffs unequivocally abandoned any claims with respect to sidewalks built on or before (and not altered after) January 26, 1992. Accordingly, we deem the plaintiffs' claims with respect to such sidewalks waived and abandoned.
We review de novo a district court's dismissal of a complaint under Rule 12(b)(6).
It is established that Title II of the ADA and § 504 of the Rehabilitation Act are enforceable through an implied private right of action. The issue is whether these statutes (and their established private right of action) extend to newly built and altered public sidewalks.
The ADA is a "broad mandate" of "comprehensive character" and "sweeping purpose" intended "to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life."
Section 504 of the Rehabilitation Act prohibits disability discrimination by recipients of federal funding. Like Title II, § 504 provides that no qualified individual with a disability "shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
As mentioned, there is no question that Title II and § 504 are enforceable through an implied private right of action.
In interpreting the scope of Title II (and its implied private right of action), our starting point is the statute's plain meaning.
If we determine that the plain meaning of Title II is ambiguous, we do not simply impose our own construction on the statute. When confronted with a statutory
We begin by determining whether the plain meaning of Title II extends to newly built and altered sidewalks. As noted, Title II provides that disabled individuals shall not be denied the "benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
The ADA does not define the "services, programs, or activities of a public entity." The Rehabilitation Act, however, defines a "program or activity" as "all of the operations of . . . a local government."
Building and altering city sidewalks unambiguously are "services" of a public entity under any reasonable understanding of that term. The Supreme Court has broadly understood a "service" to mean "the performance of work commanded or paid for by another," or "an act done for the benefit or at the command of another."
Under each of these common understandings, building and altering public sidewalks unambiguously are services of a public entity. The construction or alteration of a city sidewalk is work commanded by another (i.e., voters and public officials), paid for by another (i.e., taxpayers), and done for the benefit of another (e.g., pedestrians and drivers). When a city builds or alters a sidewalk, it promotes the general public's convenience by overcoming a collective action problem and allowing citizens to focus on other ventures. Moreover, when a city builds or alters a sidewalk, it helps meet a general demand for the safe movement of people and goods.
A "service" also might be defined as "[t]he duties, work, or business performed or discharged by a public official."
Furthermore, building and altering public sidewalks easily are among "all of the operations" (and thus also the "programs or activities") of a public entity. Webster's Dictionary broadly defines "operations" as "the whole process of planning for and operating a business or other organized unit," and defines "operation" as "a doing or performing esp[ecially] of action."
In sum, in common understanding, building and altering public sidewalks are services, programs, or activities of a public entity. When a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, disabled individuals are denied the benefits of that city's services, programs, or activities. Newly built and altered sidewalks thus fit squarely within the plain, unambiguous text of Title II.
Even if we focus on a public sidewalk itself, we still find that a sidewalk unambiguously is a service, program, or activity of a public entity. A city sidewalk itself facilitates the public's "convenience and benefit" by affording a means of safe transportation.
Were there any doubt that the plain meaning of § 12132 extends to newly built and altered sidewalks, other provisions in Title II confirm that it does. Congress directed DOJ to "promulgate regulations" that "implement" § 12132.
In fact, the ADA actually prohibits courts from construing Title II to apply a lesser standard than the Rehabilitation Act and its implementing regulations.
Additionally, in clarifying the requirements of Title II in the unique context of "designated public transportation services" (e.g., regular rail and bus services), Congress expressly provided that § 12132 requires new and altered "facilities" to be accessible.
The City draws our attention to a purported distinction between "transportation barriers" and "services" in Title II's definition of a "qualified individual with a disability." A qualified individual with a disability is defined as:
According to the City, because Congress included transportation barriers and services in the same sentence, Congress must have contemplated that newly built and altered sidewalks (and other facilities) are not services, programs, or activities within the meaning of § 12132.
As an initial matter, if our focus is on building and altering sidewalks, as opposed to sidewalks themselves, the City's distinction breaks down immediately. Even if the definition of a qualified individual with a disability suggests that sidewalks and services are mutually exclusive, the definition certainly does not suggest (contrary to any ordinary understanding) that building and altering sidewalks are not services.
In any event, Title II's definition of a qualified individual with a disability does not suggest that sidewalks and services are mutually exclusive. The phrase "with or without . . . the removal of architectural, communication, or transportation barriers" simply clarifies that the necessity of a reasonable accommodation does not disqualify a disabled individual from invoking Title II in the first place.
Taking a step back, the phrase "with or without . . . the removal of architectural, communication, or transportation barriers" in the definition of a qualified individual with a disability is used to expand Title II's nondiscrimination mandate, not narrow it. The definition ensures that existing barriers are not used to justify future discrimination. But recognizing that existing transportation barriers sometimes impede access to public services does not suggest that Congress thought cities could go on building new, inaccessible sidewalks. We do not think Congress intended to limit the plain meaning of § 12132 by referring to a recognized form of disability
Though unnecessary to resolve this case, legislative purpose and history confirm that Congress intended Title II to extend to newly built and altered sidewalks. Congress anticipated that Title II would require local governments "to provide curb cuts on public streets" because the "employment, transportation, and public accommodation sections of [the ADA] would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between streets."
Title II does not only benefit individuals with disabilities. Congress recognized that isolating disabled individuals from the social and economic mainstream imposes tremendous costs on society. Congress specifically found that disability discrimination "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity."
To conclude, it would have come as no surprise to the Congress that enacted the ADA that Title II and its implementing regulations were being used to regulate newly built and altered city sidewalks. Indeed, Title II unambiguously requires this result. Having considered both the statutory language of § 12132 as well as the language and design of Title II as a whole, we hold that Title II unambiguously extends to newly built and altered sidewalks. Because we interpret Title II and § 504 of the Rehabilitation Act in pari materia, we hold that § 504 extends to such sidewalks as well.
As discussed above, when a city decides to build or alter a sidewalk but makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city discriminates within the meaning of Title II. Such a sidewalk benefits persons without physical disabilities, yet that benefit is unnecessarily denied to similarly situated persons with physical disabilities. Continuing to build inaccessible sidewalks without adequate justification needlessly perpetuates the "isolation and segregation" of disabled individuals, and is the type of discrimination the ADA prohibits.
That Title II extends to newly built and altered sidewalks does not mean that it, or its private right of action, requires cities to employ "any and all means" to make such sidewalks accessible.
On their face, DOJ's regulations governing new and altered facilities are congruous with Title II's reasonable modification requirement. Under DOJ's regulations, each new sidewalk must be made "readily accessible" to individuals with disabilities.
Our conclusion is strongly suggested by the Supreme Court's decision in Lane. In Lane, the Supreme Court found that Title II requires public entities "to take reasonable measures to remove architectural and other barriers to accessibility."
The Supreme Court's use of DOJ's regulations to illustrate the scope of Title II's reasonable modification requirement is a good indication that those regulations simply apply Title II's nondiscrimination mandate.
Similarly, in Alexander v. Choate, the Supreme Court recognized that "[t]he regulations implementing § 504 [of the Rehabilitation Act] are consistent with the view that reasonable adjustments in the nature of the benefit offered must at times be made to assure meaningful access."
Consistent with the Supreme Court's discussion in Lane and Choate (and our own analysis), at least three other circuits have upheld a private right of action to enforce DOJ's regulations governing newly built and altered sidewalks. In Ability Center of Greater Toledo v. City of Sandusky, the Sixth Circuit upheld a private right of action to enforce DOJ's regulations with respect to newly built and altered sidewalks.
On occasion, a plaintiff may attempt to enforce DOJ's regulations beyond what those regulations and even Title II require. In such cases, DOJ's regulations would not "simply apply" Title II's mandate, and thus would not be privately enforceable.
So far, we have determined that the plain meaning of Title II extends to newly built and altered sidewalks, and that DOJ's regulations governing such sidewalks will "simply apply" Title II in most cases. Unless there is some other reason to judicially limit Title II's private right of action, that private right of action would seem to authorize the plaintiffs' claims in this case.
The panel majority in Frame II would have limited Title II's private right of action to sidewalks that serve as "gateways"
According to the panel majority, § 35.149 suggests that sidewalks and services are mutually exclusive, and that sidewalks are subject to Title II only when they impede access to other services. The panel majority reasoned that if DOJ thought sidewalks could be a service, it would have simply regulated them like any other service and not included them in the definition of a facility.
The problem with Frame II is that it interprets § 35.149 in isolation and ignores the rest of DOJ's regulations. Section 35.149 is but one part of DOJ's regulatory scheme. Read as a whole, DOJ's regulatory scheme makes clear that sidewalks are defined as facilities not to exclude them from the scope of Title II, but simply to ensure that they are made accessible in a gradual and prioritized manner.
Had DOJ omitted sidewalks from the definition of a facility, §§ 35.130 and 35.149 would have required all sidewalks to be immediately accessible.
Were there any ambiguity in DOJ's regulations (and we believe there is not), DOJ
As a final matter, limiting Title II's private right of action to sidewalks that serve as gateways to other public services, programs, or activities would create an unworkable and arbitrary standard. Even on the panel majority's view in Frame II, "there should be no set proximity limitation of the sidewalk to the benefit."
The City contends that the plaintiffs lack standing with respect to inaccessible sidewalks they have not personally encountered. To be sure, Article III standing requires a plaintiff seeking injunctive relief to allege "actual or imminent" and not merely "conjectural or hypothetical" injury.
The City has waged a half-hearted attack on Title II's constitutionality. According to the City, "[a]n interpretation that the ADA requires construction, maintenance and retrofilling [sic] of all City sidewalks, curb ramps and parking lots is unconstitutional because it would exceed Congress' enforcement power under § 5 of the Fourteenth Amendment to the United States Constitution." The City has supported its constitutional challenge with approximately three pages of briefing.
We decline to address the City's constitutional challenge at this point. As a preliminary matter, we have not held that Title II requires the City to "construct[], maint[ain] and retrofi[t]" all of its existing sidewalks. We have held only that when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city discriminates in violation of Title II. Because our holding is considerably narrower than the only interpretation the City asserts would be unconstitutional, it would appear that the City has no constitutional objection to our interpretation.
Additionally, DOJ has not yet had an opportunity to exercise its statutory right to intervene and defend the constitutionality of Title II.
There remains the issue of whether the plaintiffs' claims are barred by the statute of limitations. Neither Title II nor the Rehabilitation Act provides a limitations period. Furthermore, the default four-year limitations period for federal causes
When Congress does not establish a limitations period for a federal cause of action, the "general rule" is that we borrow the most analogous period from state law.
No party disputes that Texas's two-year personal-injury limitations period applies to this case.
Drawing from the text of § 12132, an injury occurs (and a complete and present cause of action arises) under Title II when a disabled individual has sufficient information to know that he has been denied the benefits of a service, program, or activity of a public entity. As applied to this case, the plaintiffs' cause of action accrued when they knew or should have known they were being denied the benefits of the City's newly built or altered sidewalks. This accrual date dovetails with the plaintiffs' standing to sue. As discussed above, a disabled individual has no standing to challenge an inaccessible sidewalk until he can show "actual," "concrete plans" to use that sidewalk.
Although the City recognizes that "vague and conclusory allegations related to disabled persons in general" are insufficient to support standing, the City nonetheless asserts that the plaintiffs' claims accrued as a matter of law at the time the City built or altered its inaccessible sidewalks. The key point the City fails to grasp is that a city's wrongful act and a disabled individual's injury need not coincide. A city acts wrongfully when it builds an inaccessible sidewalk without adequate justification, but a disabled individual is not injured until he is actually deterred from using that sidewalk.
An example will help illustrate the point. Plaintiff Scott Updike did not become disabled until September 8, 2003 (less than two years before his complaint
Updike's claims highlight a more general problem with the City's theory of accrual. Sidewalks are durable. If a disabled individual born two years and a day after an inaccessible sidewalk is built has no right to sue, new generations will be denied the benefits of that sidewalk simply because the city evaded litigation in the past. On the City's theory, the City could knowingly construct an inaccessible sidewalk yet escape liability as long as no plaintiff sued for two years (and even if no plaintiff had standing to sue during those two years). We do not think Title II contemplates this result. As Congress noted when it enacted Title II: "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem."
The City asserts that if accrual occurs only when a plaintiff is actually deterred from using a newly built or altered sidewalk, the City might be liable for "unlimited potential municipal liability." The City exaggerates. Our decision is limited to injunctive relief concerning newly built and altered sidewalks.
As for the plaintiffs other than Updike, the City will have an opportunity to prove that these plaintiffs knew or should have known they were being denied the benefits of the City's newly built or altered sidewalks more than two years before they filed their claims. This is because the statute of limitations is an affirmative defense that "places the burden of proof on the party pleading it."
To be sure, a complaint may be subject to dismissal if its allegations affirmatively demonstrate that the plaintiff's claims are barred by the statute of limitations and fail to raise some basis for tolling.
For the reasons stated, we hold that the plaintiffs have a private right of action to enforce Title II of the ADA and § 504 of the Rehabilitation Act with respect to newly built and altered sidewalks. We further hold that the plaintiffs' private right of action accrued at the time the plaintiffs first knew or should have known they were being denied the benefits of the City's newly built and altered sidewalks. Accordingly, we VACATE the district court's judgment and REMAND for further proceedings.
E. GRADY JOLLY, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and JERRY E. SMITH, EMILIO M. GARZA, EDITH BROWN CLEMENT, OWEN and JENNIFER WALKER ELROD, Circuit Judges, dissenting in part and concurring in part:
The provision of Title II that provides a private cause of action for its enforcement reads:
42 U.S.C. § 12132. Although the free-wheeling majority opinion seems to bury the narrowness of the question presented in this case,
The vagueness of the statute and the imprecision of the regulations allow a decision in this case to become complex and difficult. The choice presented by the court today, however, is clear: the amorphous definition of service offered by the majority or the textual definition that separates a facility from a service. The statute implicitly classifies a noncompliant sidewalk—not as a service—but as a transportation barrier and a facility, and the regulations specifically define a sidewalk as a facility.
If one concludes, as the majority does, that somehow a sidewalk is a "service," then one concludes that the subject matter of a private cause of action against a public entity under Title II is unlimited; if one concludes that under the ADA a sidewalk is a public "facility," and that an inanimate and static public facility is distinguishable from a public service, then a private cause of action is thus limited to services and does not extend to facilities.
Finally, and with no apparent discomfort, the majority finds it necessary to recast the issue that Richard Frame has stated for the en banc court. Specifically, Frame states that the sidewalks he seeks to alter constitute a service. The majority says it is not determinative whether a sidewalk is itself a service, because the labor that produced the sidewalk is a service. The majority, however, fails to recognize that the ADA provides a cause of action only if a service is denied "by reason of" disability.
In other words, the majority's alternative argument necessarily assumes that the plaintiffs were denied access to the service of the city's labor force on account of their respective disabilities. This assumption ignores that the city's labor services
For these reasons, and for the reasons that follow, I respectfully dissent.
The bottom-line question presented for en banc consideration is whether private plaintiffs generally have a cause of action to require the city to reconstruct sidewalks built or repaired after January 26, 1992 (the effective date of the ADA). The question is resolved by the following analysis.
First, Title II's anti-discrimination provisions do not specifically provide that a private cause of action may be brought against a municipality to enforce ADA-compliant sidewalk construction or reconstruction. Second, although the regulations that accompany the ADA address sidewalk construction and reconstruction, see 28 C.F.R. § 35.149-151,
Third, the ADA mandates equal access to governmental services, and it therefore provides a disabled individual with a private cause of action if he is being effectively denied meaningful access to a service. See Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (stating in the context of the Rehabilitation Act that a benefit cannot be offered in a way that "effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled"). Fourth, the question of whether the plaintiffs have a private cause of action to enjoin the City to construct or reconstruct a sidewalk is resolved by determining whether a sidewalk constitutes a service. Fifth, the ADA does not define "service" in specific terms.
Sixth, turning to examine the statute and regulations for guidance, we see that the statute suggests that sidewalks constitute either a barrier to transportation, or a facility, or both. See 42 U.S.C. §§ 12131(2), 12146-12147. Additionally, the regulations specifically define sidewalks as a "facility." 28 C.F.R. § 35.104 ("Facility means all or any portion of. . . roads, walks, [and] passageways. . . .") (emphasis added). Furthermore, the regulations draw a distinction between services and facilities at the behest of Congress: DOJ is required to model the relevant regulations after the "regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations[,]" see 42 U.S.C. § 12134(b), which differentiate "program[s] or activiti[es]" from "facilities." 28 C.F.R. § 39.150.
Seventh, in the light of the statute and regulations, there is no mandate for accessibility to facilities; on the other hand, there is the express mandate of the statute and the regulations to universal accessibility of services, programs, and activities. Stated differently, facilities are specifically excluded from the access demands of the private cause of action provided in Section 12132. Because a sidewalk is a facility—
This dissent now moves to consider these points more fully. We begin by again noting that the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of" public services. 42 U.S.C. § 12132.
Even though the statute does not explicitly define the term "services," the statute makes a few suggestions to aid our interpretation of the term.
We are not alone in reaching the conclusion that transportation barriers are distinguishable from services: the Supreme Court has held that the necessary implication of Section 12131(2) is that in some circumstances, local governments must "remove architectural and other barriers to [the] accessibility [of judicial services]." Tennessee v. Lane, 541 U.S. 509, 531, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Thus, if transportation barriers, i.e., facilities, and services are coextensive as the majority argues, the ADA requires local governments to "remove" services, i.e., transportation barriers, so that disabled individuals will have access to services. This is the nonsensical reading that follows from the majority's reasoning; we should strive to avoid such absurdity. See Dunn-McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 630 F.3d 431, 439 (5th Cir. 2011).
In sum: although Title II of the ADA does not define services in express terms,
We continue to look to the statute for guidance on what a service is not, but we now turn to Part B of Title II, which deals not with public services generally, but with the specific subset of public transportation services. See generally 42 U.S.C. §§ 12141-12165. Within this part, Congress required that local governments make accessible their new and altered facilities, but only those that are "to be used in the provision of designated public transportation services . . ." 42 U.S.C. § 12146.
Given that the statute requires that facilities be accessible to disabled individuals only in this limited context, it is plain that, despite the majority's argument to the contrary, facilities are not merely a "subset of services." See Majority Op. at 234-35 ("DOJ has filed an amicus brief confirming that newly built and altered sidewalks `are a subset of services, programs, or activities,' . . . DOJ's amicus brief corroborates our own analysis . . . ."). I reiterate: under the ADA, disabled individuals shall not "be excluded from participation in or be denied the benefits of" public services. 42 U.S.C. § 12132. Thus, all services must be made accessible in all contexts. Again, the primary implication of Sections 12146 and 12147 is that facilities need only be made equally accessible in the specific and limited context of "designated public transit services." Thus, because facilities are not subject to the universal equal accessibility requirement, they are not—as the majority argues— enfolded within the term services.
Moreover, relevant precedent teaches that when Congress included the term "facilities" in Sections 12146 and 12147, it indicated that it had purposefully excluded that term from the private cause of action included in Section 12132. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (alteration in original); see also Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999) ("It is a fundamental tenet of statutory construction that Congress intended to exclude language included in one section of a statute, but omitted from another section."). Thus, we should reject the majority's argument that the use of the term facilities in Sections 12146 and 12147 demonstrates that Congress intended to include the term facilities in Section 12132.
Thus, the ADA, without explicitly defining the term services, identifies two things that a service is not: a transportation barrier and a facility. Applying those distinctions here, it seems that under the statute itself, a noncompliant sidewalk is a transportation barrier and that sidewalks in general, are—like other static, inanimate, immobile infrastructure—facilities.
We now turn to the regulations to resolve any remaining doubt that facilities are distinguishable from services.
Although the majority turns to the regulations hoping to smooth off the rough incongruities of its statutory interpretation of "service" as unambiguous, the regulations, for the reasons below, actually—and compellingly—suggest that a sidewalk itself does not constitute a service.
First, the regulations define and designate a sidewalk as a "facility"—not as a "service, program, or activity." 28 C.F.R. § 35.104 ("Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property . . . .").
Second, the regulations mirror the statute and require that all services shall be accessible to the disabled. 28 C.F.R. § 35.130(a) ("No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.").
Third, the regulations further provide that no disabled individual "shall, because a public entity's facilities are inaccessible. . . or unusable . . . be excluded from participation in, or be denied the benefits of the services, programs, or activities . . . ." 28 C.F.R. § 35.149 (emphasis added). Thus, under the regulations, as under the statute, all services are mandated to be accessible, but facilities, e.g., sidewalks, may remain inaccessible—a crucial distinction that tells us, contrary to the majority's assertion, that facilities and services are two distinctly separate categories under Title II. See 42 U.S.C. § 12132 ("[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity . . . ."); see also 28 C.F.R. § 35.130 ("No qualified individual with a disability shall, on the basis of disability, be excluded from participation
Fourth, the regulations further provide that a city is not "[n]ecessarily require[d]. . . to make each . . . existing facilit[y] accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150.
Finally, the regulations require only that a city make newly constructed or reconstructed sidewalks handicapped-accessible. 28 C.F.R. § 35.151. As we have said more than once, all services of the city must be made accessible; if the regulations characterized sidewalks a service, no sidewalk would be allowed to be inaccessible. Section 35.151 is not privately enforceable unless it effectuates a statutory mandate. Here, the statutory mandate, requiring accessibility for the disabled, specifically omits facilities. "[P]rivate rights of action to enforce federal law must be created by Congress." Sandoval, 532 U.S. at 286, 121 S.Ct. 1511. This principle means that agencies, as well en banc courts, cannot "conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself." Id. at 291, 121 S.Ct. 1511. Because—as discussed at length above—the statute mandates access to services, not facilities, Section 35.151's requirements are not enforceable in a private suit, but instead are left to other enforcement mechanisms as might be employed by the Attorney General.
In short, the regulations expressly define sidewalks as facilities, not as services. And, furthermore, by requiring that all services be made accessible, while requiring
Nor is the regulatory distinction between "facilities" and "services" the result of oversight, mistake, or confusion, but derives from congressional mandate. Indeed, Congress directed that the regulations differentiate between facilities and services.
The ADA—statutorily and specifically—requires that the DOJ regulations regarding "`program accessibility, existing facilities,'. . . be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations." 42 U.S.C. § 12134(b). The regulations at part 39 of title 28 implementing the Rehabilitation Act draw a distinction between facilities on the one hand and programs and activities on the other. See 28 C.F.R. §§ 39.149-50.
The statute further requires that the regulations regarding new and altered facilities track the language from the "coordination regulations under part 41 of title 28, Code of Federal Regulations. . . ." 42 U.S.C. § 12134(b). The majority correctly argues that the "regulations that Congress sought to replicate under Title II require new and altered facilities, including sidewalks, to be accessible in most circumstances." Majority Op. at 228 (emphasis added). The majority's wobble, i.e., "most," proves the point. If facilities, i.e., sidewalks, are services, they must be equally accessible in all circumstances, not in "most circumstances." 42 U.S.C. § 12132 ("[N]o qualified individual with a disability shall . . . be excluded from participation in or be denied the benefits of the services, programs, or activities, . . . .") (emphasis added). Thus, the fact that, pursuant to Congress's direct instructions, the regulations require only that new—but not all—facilities be accessible in most—but not all—circumstances again suggests that "facility" is not a term that replicates the statutory term "service."
This dissent associates with impressive company in recognizing that the statute and regulations, when read together, provide flexibility with respect to facility repair, while requiring that all services be made accessible: the Supreme Court and a distinguished circuit court of appeals have recognized that the proper focus of the ADA is access to services, not access to facilities, and that local governments are given discretion as how best to make services accessible.
First, the Supreme Court has placed particular emphasis on the flexibility granted to local governments under the regulations, saying that "a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services." Lane, 541 U.S. at 532, 124 S.Ct. 1978. It is worth reemphasizing the Court's language: local governments may decide whether, as a matter of policy, to "relocat[e] services to alternative, accessible sites . . . ." See id. (emphasis added). This insight strongly suggests that sidewalks are not services: Must the majority be told that sidewalks are not likely to be relocated to another site?
Notwithstanding Lane's suggestion that sidewalks are not services, the majority insists that Lane supports its position that facilities are services, and thus the plaintiffs here have a private cause of action even if sidewalks are considered facilities. Majority Op. at 232 ("The Supreme Court's use of DOJ's regulations to illustrate the scope of Title II's reasonable modification [of facilities] requirement is a good indication that those regulations simply apply Title II's nondiscrimination mandate."). This "good indication" is not at all what Lane indicates. The services at issue in Lane, as the Court made clear, were "judicial services"; for our purposes, the important point is that the Court never so much as intimated that the facility—that is, the courthouse—was a service at issue. 541 U.S. at 531, 124 S.Ct. 1978. The courthouse was merely the means of accessing the services related to legal matters offered by the government.
It is easy enough to apply Lane's explication of the regulations to sidewalks. If a service is provided in a particular building, and that building is inaccessible to the wheelchair disabled because of noncompliant sidewalks, the governmental entity has various options. Among these: it might move the service to another facility that is supported by accessible sidewalks, or it might repair the sidewalks around the original building. The point is this: the local government is allowed to decide how to address the issue of inaccessibility of a service, so long as it provides some appropriate remedy. Thus, the Supreme Court has implicitly recognized that because it is within the city's discretion of how and when to reconstruct existing facilities and infrastructure, facilities are not services, and the statute therefore excludes this private cause of action.
The First Circuit has also recognized that facilities are relevant in the ADA context only in their capacity as a gateway to a service, and that the focus of the ADA is on access to services, programs, and activities. See Iverson v. City of Boston, 452 F.3d 94, 99-100 (1st Cir.2006); Parker v. Universidad de Puerto Rico, 225 F.3d 1,
At least two other circuits have drawn a distinction between facilities and services in the context of courthouse access for disabled persons. See Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir.2001) ("[Plaintiffs] allege that the wheelchair ramps and bathrooms at the courthouse impede their ability to attend trials . . . . A trial undoubtably is a service . . . within the meaning of § 12132."); Layton v. Elder, 143 F.3d 469, 473 (8th Cir.1998) ("[I]f the county intends to continue using the county courthouse to provide services . . . it must make . . . the building accessible to individuals with disabilities . . . .").
Notably, these holdings fit squarely within this dissent's view of the statute and the regulations. To reiterate, we should hold that private plaintiffs have a cause of action when inaccessible sidewalks deny meaningful access to a public service.
Finally, we turn to address the majority's attempt to reframe the issue presented, and to thereby shift our focus from the actual sidewalks that the plaintiffs seek to modify, to the labor services employed to construct those sidewalks. Of course, this effort reflects the majority's recognition that a static, immovable, and inanimate piece of concrete is not a service—not only in terms of normal thinking, but as established by the statute, the regulations, and the common definitions of the term. This argument has lately been advanced to the front lines of the majority's interpretative theories, notwithstanding that the plaintiffs stated the question in their en banc brief to be:
(Emphasis added).
Thus, the majority alternatively contends that even if concrete does not constitute a service, "building and altering sidewalks are services, programs, or activities. . . ." Majority Op. at 226 (emphasis added).
This alternative argument leaves unaddressed that, under Section 12132 the denial of the construction worker's "service" must be by "reason of disability," that is, the disability must preclude access to the
The majority vigorously contends, and we do not disagree, that Congress passed the ADA with the aim of granting disabled citizens the same access to public services that able-bodied citizens enjoy; but the majority does not contend that the ADA provides disabled individuals with greater access to public services. Plainly said, no citizen has access to a city's labor force for the construction of a sidewalk. So, surely, any denial of access to the sidewalk construction crew cannot be "by reason of . . . disability."
Thus, the majority is demonstrably incorrect when it insists that it does not matter how broadly we analyze the statute. See Majority Op. at 226 ("[W]e believe this case does not turn on how we frame the issue.") The proper question is whether a sidewalk is itself a service. The answer is that it is not.
From reading the majority opinion and this dissent, it is evident that the statute has not been drawn with preciseness. Nevertheless, this dissent has demonstrated that the statute itself differentiates services from facilities, and has addressed sidewalks only as transportation barriers and facilities, but never as a service. The regulations that implement the statute, however, define sidewalks as a facility. Like the statute, these regulations never refer to sidewalks as a service.
This dissent has thus shown that the majority errs when it conflates services and facilities. This error is further demonstrated because the statute and the regulations allow facilities to be inaccessible to the disabled in many circumstances but require all services to be made equally accessible. Thus, a proper reading of the statute makes clear that facilities and services are treated with distinct and separate meanings. When the statute and regulations are considered as a whole, it should be clear, except perhaps to the most intractable, that Congress never intended for sidewalks to constitute a service, accompanied by a private cause of action.
Finally, this dissent has shown the nonfunctionality of the majority's abstract argument that the labor construction services morph into the sidewalk itself.
For the reasons stated above, I respectfully dissent. I would remand to allow the district court to determine whether the plaintiffs can show that particular sidewalks deny access to services that are not otherwise accessible.
In a similar vein, the majority contends that the ADA and the Rehabilitation Act are broad statutes aimed at remedying discrimination against disabled individuals. This point does little to aid our analysis concerning private rights of action to enforce the statute.
Indeed, according to its publications, the Department of Justice enforces the regulatory requirements of Title II in a variety of ways, including through formal and informal settlement agreements, mediation, and litigation. Enforcing the ADA: A Status Report from the Department of Justice, Issue 2, at 2, available at http://www.ada.gov/aprjun 10.pdf (last visited May 18, 2011). In one particularly wide-ranging effort—Project Civic Access—DOJ enters into agreements with municipalities, counties, and other like units of local government; through this project, DOJ has investigated accessibility in all fifty states and beyond. Project Civic Access, http://www.ada. gov/civicac.htm (last visited May 18, 2011).
Title II incorporates the remedies available under § 505 of the Rehabilitation Act, which incorporates the "remedies, rights, and procedures set forth in Title VI of the Civil Rights Act of 1964 for violations of § 504 of the Rehabilitation Act." Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 n. 4, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). The available remedies include "termination or denial of federal funds." Id.
42 U.S.C. § 12141(2).
