UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

)

DAVID BARNETT,[^1] LAURENCE )

DILWORTH, WILLIE COCHRAN, )

CAROLYN REED, and ELBERT DAVIS, )

)

Plaintiffs, )

) No. 2:04-cv-73152

and )

) THE HON. ROBERT H. CLELAND

THE UNITED STATES OF AMERICA, ) MAGISTR. JUDGE R. STEVEN WHALEN

)

Applicant for Intervention, )

)

5\. )

)

CITY OF DETROIT, )

)

Defendant. )

)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

THE UNITED STATES' MOTION TO INTERVENE OF RIGHT

OR, ALTERNATIVELY, TO INTERVENE BY PERMISSION

[STATEMENT OF THE ISSUES]{.underline}

The United States files this Memorandum of Points and Authorities in
Support of its Motion to Intervene in this action for injunctive and
declaratory relief and compensatory damages to remedy alleged violations
of title II of the Americans with Disabilities Act ("title II" and
"ADA"), 42 U.S.C. §§ 12131 [et seq.]{.underline}, and section 504 of the
Rehabilitation Act of 1973 ("section 504), 29 U.S.C. § 794. The action
stems from the alleged failure of the defendant, the City of Detroit, to
provide qualified individuals with disabilities with equal access to the
services, programs, and activities of the City's public transportation
system. The United States requests leave to intervene of right, or,
alternatively, to intervene by permission, pursuant to Rule 24 of the
Federal Rules of Civil Procedure.

[ISSUES AND AUTHORITY]{.underline}

1.  Intervention of right is warranted in this case because the United
    States has significant protectable interests in the enforcement of
    title II and section 504 which are not adequately represented by the
    existing parties and which may as a practical matter be impaired if
    intervention is denied.

Fed. R. Civ. P. 24(a)(2);

[United States v. Tennessee]{.underline}, 260 F.3d 587 (6^th^ Cir.
2001);

[Stupak-Thrall v. Glickman]{.underline}, 226 F.3d 467 (6^th^ Cir. 2000);

[Mich. State AFL-CIO v. Miller]{.underline}, 103 F.3d 1240 (6^th^ Cir.
1997).

2.  Alternatively, permissive intervention is warranted because the
    United States' claims against the City of Detroit have questions of
    law and fact in common with the main action, and the main action
    involves the interpretation of statutes which the Attorney General
    is entrusted by Congress to administer.

Fed. R. Civ. P. 24(b)(2);

[Stupak-Thrall v. Glickman]{.underline}, 226 F.3d 467 (6^th^ Cir. 2000);

[Mich. State AFL-CIO v. Miller]{.underline}, 103 F.3d 1240 (6^th^ Cir.
1997).

[TABLE OF CONTENTS]{.underline}

Introduction 1

A.  Statutory and Regulatory Background 2

1\. Applicable Provisions of Title II 2

2\. Applicable Provisions of the Rehabilitation Act 4

B. Factual Background 4

C. Argument 6

1\. The United States is Entitled to Intervention of Right. 6

3.  The United States' Application for Intervention is Timely. 6

4.  The United States Has a Substantial Legal Interest in the Action. 8

5.  Intervention is Necessary to Protect the United States' Interest. 10

6.  The United States' Interest is Inadequately Represented

by Existing Parties. 11

2\. The United States Should Be Granted Permissive Intervention. 13

Conclusion 15

\* \* \*

Index of Authorities iv

Index of Exhibits vi

[INDEX OF AUTHORITIES]{.underline}

[Cases]{.underline}

[Ceres Gulf v. Cooper]{.underline}, 957 F.2d 1199 (5^th^ Cir. 1992) 9

[Bradley v. Milliken]{.underline}, 828 F.2d 1186 (6^th^ Cir. 1987) 8, 12

[Grubbs v. Norris]{.underline}, 870 F.2d 343 (6^th^ Cir. 1989) 7

[Grutter v. Bollinger]{.underline}, 188 F.3d 394 (6^th^ Cir. 1999) 8, 11

[Halderman v. Pennhurst State Sch. & Hosp.]{.underline}, 612 F.2d 84 (3d
Cir. 1979) 14

[Jansen v. City of Cincinatti]{.underline}, 904 F.2d 336 (6^th^ Cir.
1990) 7, 11

[Jordan v. Mich. Conference of Teamsters Welfare Fund]{.underline}, 207
F.3d 854 (6^th^ Cir. 2000) 11

[Mich. State AFL-CIO v. Miller]{.underline}, 103 F.3d 1240 (6^th^ Cir.
1997) 8, 10-13

[Nuesse v. Camp]{.underline}, 385 F.2d 694 (D.C. Cir. 1967) 9

[Purnell v. City of Akron]{.underline}, 925 F.2d 941 (6^th^ Cir. 1991)
6, 8, 10, 11

[Stupak-Thrall v. Glickman]{.underline}, 226 F.3d 467 (6^th^ Cir. 2000)
6, 7, 11, 13

[United States v. City of Los Angeles, Cal.]{.underline}, 288 F.3d 391
(9^th^ Cir. 2002) 11

[United States v. Tennessee]{.underline}, 260 F.3d 587 (6^th^ Cir. 2001)
6-8

[Velsicol Chem. Corp. v. Enenco, Inc.]{.underline}, 9 F.3d 524 (6^th^
Cir. 1993) 13

[Statutory Provisions]{.underline}

29 U.S.C. § 794 1

29 U.S.C. § 794(a) 4

42 U.S.C. § 12101 8, 9

42 U.S.C. § 12131 1, 2

42 U.S.C. § 12132 2

42 U.S.C. § 12133 9, 10

42 U.S.C. § 12164 2

42 U.S.C. § 2000d-1 (reprinting Executive Order 12250) 10

42 U.S.C. §§ 12141 - 12165 3

Fed. R. Civ. P. 24 1, 6, 13, 14

[Regulatory Provisions]{.underline}

28 C.F.R. Part 35 2

28 C.F.R. § 35.130 2, 3

49 C.F.R. Part 27 2

49 C.F.R. Part 37 2

49 C.F.R. Part 38 2

49 C.F.R. § 27.7 4

49 C.F.R. § 37.161 4

49 C.F.R. § 37.163 4

49 C.F.R. § 37.173 4

49 C.F.R. § 37.5 4

[INDEX OF EXHIBITS]{.underline}

Exhibit 1: Proposed Complaint in Intervention

**[Introduction]{.underline}**

The United States files this Memorandum of Points and Authorities in
Support of its Motion to Intervene in this action for injunctive and
declaratory relief and compensatory damages to remedy alleged violations
of title II of the Americans with Disabilities Act ("title II" and
"ADA"), 42 U.S.C. §§ 12131 [et seq]{.underline}., and section 504 of the
Rehabilitation Act of 1973 ("section 504"), 29 U.S.C. § 794. The action
stems from the alleged failure of the defendant, Detroit City, to
provide qualified individuals with disabilities with equal access to the
services, programs, and activities of the City's public transportation
system. The United States requests leave to intervene of right, or,
alternatively, to intervene by permission, pursuant to Rule 24 of the
Federal Rules of Civil Procedure. Intervention of right is warranted in
this case because the United States has a significantly protectable
interest in the enforcement of title II and section 504 which is not
adequately represented by the existing parties and which may as a
practical matter be impaired if intervention is denied.
[See]{.underline} Fed. R. Civ. P. 24(a)(2). Alternatively, the United
States moves for permissive intervention because its claims against the
defendant have questions of law and fact in common with the main action,
and the main action involves the interpretation of statutes which the
Attorney General is entrusted by Congress to administer.
[See]{.underline} Fed. R. Civ. P. 24(b)(2).[^2]

**A. [Statutory and Regulatory Background]{.underline}**

The proposed Complaint in Intervention, attached as Exhibit 1, generally
alleges that the defendant violated title II of the ADA and section 504
of the Rehabilitation Act when, on the basis of disability, it
discriminated against persons with disabilities and excluded such
persons from participation in, and denied such persons the benefits of,
the City's public transportation system. Title II and section 504
require that public entities provide accessible transportation to people
with disabilities. Title II of the ADA has two parts: Part A contains
general provisions that apply to all public entities, while Part B
specifically addresses public transportation services and required the
Secretary of Transportation to promulgate regulations for carrying out
that part, 42 U.S.C. §12164. Thus, public transportation entities are
governed by Department of Transportation ("US DOT") regulations
implementing title II, 49 C.F.R. Parts 37 and 38, Department of Justice
regulations implementing title II, 28 C.F.R. Part 35, and US DOT
regulations implementing section 504, 49 C.F.R. Part 27.

1.  **[Applicable Provisions of Title II]{.underline}**

Title II of the ADA prohibits discrimination against individuals with
disabilities by public entities, the definition of which includes local
governments such as the City of Detroit. [See]{.underline} 42 U.S.C. §
12131(1)(A) and (B) (defining "public entity" under the ADA). Part A of
title II contains provisions that apply to all public entities, and
states that "no 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, or
be subjected to discrimination by any such entity." 42 U.S.C. § 12132;
28 C.F.R. § 35.130(a).

The title II regulations promulgated by the Department of Justice
include additional nondiscrimination provisions stating that it is
prohibited discrimination to deny a qualified individual with a
disability the opportunity to participate in or benefit from the aid,
benefit, or service of the public entity, and to afford a qualified
individual with a disability an opportunity to participate in or benefit
from the aid, benefit, or service of the public entity or recipient that
is not equal to that afforded others. 28 C.F.R. §§ 35.130(b)(1)(i) and
(ii). The regulations further prohibit a public entity from providing a
qualified individual with a disability with an aid, benefit, or service
of the public entity that is not as effective in affording equal
opportunity to obtain the same result or gain the same benefit as that
provided to others. 28 C.F.R. § 35.130(b)(1)(iii). A public entity may
not utilize criteria or methods of administration that have the effect
of subjecting qualified individuals with disabilities to discrimination,
or which have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the public entity's
programs with respect to individuals with disabilities. 28 C.F.R. §
35.130(b)(3)(i) and (ii). Reasonable modifications in policies,
practices, or procedures must be made when necessary to avoid
discrimination on the basis of disability unless the public entity can
demonstrate that making the modification would fundamentally alter the
nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7).
And all services, programs, and activities of the public entity must be
administered in the most integrated setting appropriate to the needs of
qualified individuals with disabilities. 28 C.F.R. § 35.130(d). These
regulations were based on the regulations implementing section 504.

Part B of title II contains provisions that apply to public entities
that operate public transportation services. 42 U.S.C. §§ 12141-12165.
The US DOT regulations implementing Part B have a general
nondiscrimination provision requiring accessibility in transportation
services and prohibiting the denial of service to individuals with
disabilities. 49 C.F.R. § 37.5(a) and (b). Other regulations relevant to
the provision of nondiscriminatory fixed route bus service, such as at
issue in this case, include, but are not limited to, those establishing
specifications relating to wheelchair lifts, ramps, wheelchair
locations, wheelchair securement devices, accessible entrances to and
within the vehicles, vehicle door widths, external signage on vehicles,
maintenance of bus lifts, procedures when a bus lift is broken, times
for boarding and disembarking, and training of personnel regarding
respectful treatment of and assistance to persons with disabilities.
[See, e.g.]{.underline}, 49 C.F.R. §§ 37.161, 37.163, and 37.173.

2.  **[Applicable Provisions of the Rehabilitation Act]{.underline}**

Section 504 of the Rehabilitation Act states that "\[n\]o otherwise
qualified individual with a disability . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . ." 29 U.S.C. §
794(a). As the defendant receives federal financial assistance for its
public transportation services, it is subject to section 504. The
Rehabilitation Act was enacted in 1973, and US DOT promulgated
regulations implementing section 504 in 1979. The section 504
regulations, which predated and formed the basis for the ADA
regulations, mandate similar nondiscrimination obligations to ensure
that qualified individuals with disabilities are not excluded from,
denied the benefits of, or otherwise discriminated against by recipients
of federal funds. [See]{.underline} 49 C.F.R. § 27.7.

**B. [Factual Background]{.underline}**

On August 17, 2004, the named plaintiffs instituted this suit against
the City of Detroit for violations of title II of the ADA and section
504 of the Rehabilitation Act through discrimination in the provision of
services, programs and activities of the City's public transportation
system.[^3] Each of the named plaintiffs is a person with a disability
under the ADA and the Rehabilitation Act, and, more specifically, each
is substantially limited in the major life activity of walking and uses
a wheelchair for mobility. As alleged in the plaintiffs' Complaint, the
plaintiffs, individually, rely on Detroit's public transit system for
transportation to activities central to daily living, including work,
medical appointments, church, shopping, and visiting friends and family.
Each of the plaintiffs alleges that on numerous occasions, when
attempting to access Detroit's public bus system, he or she has
encountered inoperable or inaccessible buses and was made to endure long
waits, at times for hours in Detroit's winter weather, that non-disabled
transit riders did not have to endure. The plaintiffs allege that the
defendant's conduct evidences and reflects an ongoing and systemic
failure to provide equal access to its fixed route public bus lines,
which discrimination has resulted in isolation, pain and suffering, and
economic loss.

The United States' proposed Complaint in Intervention alleges
discrimination in the City's public transportation system in violation
of title II and section 504, focusing on specific regulations relevant
to the City's conduct in this matter. Through intervention, the United
States seeks to ensure that the City's public transportation system is
accessible to the named plaintiffs and all other disabled individuals
with mobility impairments that seek to use the system.

> **C. [Argument]{.underline}**

**1. [The United States Is Entitled to Intervention of
Right.]{.underline}**

Federal Rule of Civil Procedure 24(a) provides that upon timely
application anyone shall be permitted to intervene in an action:

> when the applicant claims an interest relating to the property or
> transaction which is the subject of the action and the applicant is so
> situated that the disposition of the action may as a practical matter
> impair or impede the applicant\'s ability to protect that interest,
> unless the applicant\'s interest is adequately represented by existing
> parties.

Fed. R. Civ. P. 24(a)(2). An applicant for intervention of right must
prove four elements:

> \(1\) timeliness of the application to intervene, (2) the applicant's
> substantial legal interest in the case, (3) impairment of the
> applicant's ability to protect that interest in the absence of
> intervention, and (4) inadequate representation of that interest by
> parties already before the court.

[United States v. Tennessee]{.underline}, 260 F.3d 587, 591-92 (6^th^
Cir. 2001); [see also]{.underline} [Purnell v. City of
Akron]{.underline}, 925 F.2d 941, 945 (6^th^ Cir. 1991) (characterizing
the core inquiry, after timeliness, as: "(1) does the applicant claim an
interest relating to the property or transaction that is the subject of
the action; (2) is the applicant so situated that disposition of the
lawsuit may as a practical matter impair or impede his ability to
protect that interest; and (3) is the applicant's interest adequately
represented by existing parties."). "Rule 24 should be 'broadly
construed in favor of potential intervenors.'" [Stupak-Thrall v.
Glickman]{.underline}, 226 F.3d 467, 472 (6^th^ Cir. 2000) (quoting
[Purnell]{.underline}, 925 F.2d at 950). The United States meets the
prerequisites for intervention of right.

(a) **[The United States' Application for Intervention is
    Timely.]{.underline}**

The Sixth Circuit has identified several factors relevant to determining
whether a request for intervention is timely:

> \(1\) the point to which the suit has progressed; (2) the purpose for
> which intervention is sought; (3) the length of time preceding the
> application during which the proposed intervenor knew or reasonably
> should have known of his interest in the case; (4) the prejudice to
> the original parties due to the proposed intervenor's failure, after
> he or she knew or reasonably should have known of his interest in the
> case, to apply promptly for intervention; and (5) the existence of
> unusual circumstances militating against or in favor of intervention.

[Grubbs v. Norris]{.underline}, 870 F.2d 343, 345 (6^th^ Cir. 1989),
[quoted in]{.underline} [Tennessee]{.underline}, 260 F.3d at 592. "The
determination of whether a motion to intervene is timely should be
evaluated in the context of all relevant circumstances." [Jansen v. City
of Cincinatti]{.underline}, 904 F.2d 336, 340 (6^th^ Cir. 1990), [quoted
in]{.underline} [Tennessee]{.underline}, 260 F.3d at 592. At issue is
not, primarily, the time of intervention, but rather what substantive
progress has occurred in the litigation, and whether, in light of all
circumstances, the application should be considered timely.
[Id.]{.underline} (citing [Stupak-Thrall]{.underline}, 226 F.3d at 475).

Applying these factors in the instant case, the United States'
application for intervention is timely. The plaintiffs filed this suit
in August, 2004, and the Department of Justice ("Department") learned of
the litigation shortly thereafter. Consistent with the Department's
administrative policies, the Department undertook a careful
investigation and deliberative evaluation of whether intervention by the
United States would be appropriate in this case. The Department's
decision to seek intervention reflects the central role that
transportation plays in daily living, and the importance of ensuring
that all individuals have equal access to the programs, services,
activities, and opportunities afforded by public transportation.

With regard to substantive proceedings, the litigation in this case is
at an early stage. Formal discovery has been stayed while the parties
engage in settlement discussions. While the Court recently appointed a
mediator to facilitate those discussions, the parties have not yet met
with the mediator or begun the mediation process. Thus, the United
States' intervention would not prejudice the original parties. And
finally, the Department's extensive experience with the statutes at
issue militates in favor of intervention as this expertise would likely
increase efficiency throughout the litigation. In light of these facts,
the United States' application for intervention of right should be
deemed timely.

(b) **[The United States Has a Substantial Legal Interest in the
    Action.]{.underline}**

With regard to the second Rule 24(a)(2) factor, the Sixth Circuit takes
a broad view of the requisite interest for intervention of right:

> \[I\]n this circuit we subscribe to a "rather expansive notion of the
> interest sufficient to invoke intervention of right." [Mich. State
> AFL-CIO v. Miller]{.underline}, 103 F.3d 1240, 1245 (6^th^ Cir. 1997).
> For example, an intervenor need not have the same standing necessary
> to initiate a lawsuit. [See]{.underline} [id.]{.underline}; [Purnell
> v. City of Akron]{.underline}, 925 F.2d 941, 948 (6^th^ Cir. 1991). We
> have also "cited with approval decisions of other courts 'rejecting
> the notion that Rule 24(a)(2) requires a specific legal or equitable
> interest.'" [Miller]{.underline}, 103 F.3d at 1245 (quoting
> [Purnell]{.underline}, 925 F.2d at 948). "The inquiry into the
> substantiality of the claimed interest is necessarily fact specific."
> [Id.]{.underline}

[Grutter v. Bollinger]{.underline}, 188 F.3d 394, 398 (6^th^ Cir. 1999),
[quoted in]{.underline} [Tennessee]{.underline}, 260 F.3d at 595. [See
also]{.underline} [Bradley v. Milliken]{.underline}, 828 F.2d 1186, 1192
(6^th^ Cir. 1987) ("This court has acknowledged that 'interest' should
be construed liberally."). "\[C\]lose cases should be resolved in favor
of recognizing an interest under Rule 24(a)." [Miller]{.underline}, 103
F.3d at 1247.

The United States' interest in the pending litigation merits
intervention of right. As the federal agency charged with enforcing the
ADA, the Department has a substantial interest in the subject matter of
the pending litigation. Underlying enactment of the ADA was Congress'
intent to "provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities . .
. ." 42 U.S.C. § 12101(b)(1). Congress sought "clear, strong,
consistent, enforceable standards addressing discrimination against
individuals with disabilities," 42 U.S.C. § 12101(b)(2), and explicitly
stated that one of the purposes of the ADA was "to ensure that the
Federal Government plays a central role in enforcing the standards
established \[in the Act\] on behalf of individuals with disabilities .
. . ." 42 U.S.C. § 12101(b)(3). The United States' prominent enforcement
role is reflected in the statutory authorization given the Attorney
General to commence a legal action when discrimination prohibited by the
ADA takes place. 42 U.S.C. § 12133.

This case directly implicates the United States' interest in enforcing
title II of the ADA to ensure the "clear, strong, consistent,
enforceable standards" envisioned by Congress. And while the United
States has an interest in the elimination of all forms of disability
discrimination, that interest is arguably heightened in this case given
the important nature of the public service at issue. The United States
also has a substantial interest in ensuring that recipients of federal
financing, such as the defendant, do not violate section 504\'s similar
prohibition of disability discrimination. Accordingly, the United
States' significant protectable interests in ensuring that this case
results in clear, consistent, enforceable standards, both substantive
and remedial, supports intervention of right. [Cf., e.g.]{.underline},
[Ceres Gulf v. Cooper]{.underline}, 957 F.2d 1199, 1204 (5^th^ Cir.
1992) (collecting cases, and finding, in insurer's suit against employee
for reimbursement of advance payments, that the interest of the federal
director of the Office of Workers' Compensation Programs in "consistent
application of . . . a statutory scheme he is charged with
administering" was sufficient to support intervention as of right);
[Nuesse v. Camp]{.underline}, 385 F.2d 694, 700-01 (D.C. Cir. 1967)
(discussing liberalization of Rule 24(a) under 1966 amendment, and
finding that state government official charged with administering a
banking law had interest in advocating particular construction of the
law that was sufficient to support intervention of right).

Additionally, because the alternative to the United States' intervention
in the plaintiffs' lawsuit is a separate action including the United
States' title II and section 504 claims, the efficiency goals implicit
in Rule 24(a) are furthered if intervention is permitted here. As noted
previously, the Department plays a central role in enforcing the title
II regulations at issue in this case, [see]{.underline} 42 U.S.C. §
12133, and plays the primary role in coordinating the implementation and
enforcement of section 504 among federal agencies, [see]{.underline}
Executive Order 12250, 45 Fed. Reg. 72995 (1980), [reprinted
in]{.underline} 42 U.S.C. § 2000d-1. Through this regulatory and
enforcement work, the Department has accumulated significant experience
in guiding public entities in amending policies, practices, and
procedures to conform to the mandates of title II and section 504. The
Department's unique experience and familiarity with the statutes and
regulations at issue will facilitate the efficient litigation of this
dispute and promote a resolution which provides the clear, consistent,
enforceable standards contemplated by Congress.

(c) **[Intervention is Necessary to Protect the United States'
    Interest.]{.underline}**

Under the third intervention factor, "a would-be intervenor must show
only that impairment of its substantial legal interest is possible if
intervention is denied." [Miller]{.underline}, 103 F.3d at 1247 (citing
[Purnell]{.underline}, 925 F.2d at 948). "This burden is minimal."
[Id.]{.underline} This factor may be satisfied if a determination of the
action in the applicant's absence will have a significant *stare
decisis* effect to the detriment of the applicant. [Id.]{.underline}

Because the ADA is a relatively young statute, federal decisions
interpreting and applying the provisions of the Act are an important
enforcement tool. An unfavorable disposition of this case may, as a
practical matter, impair the United States' interest in eliminating
disability discrimination in public transportation. Moreover, the Sixth
Circuit has not yet addressed the application of title II or section 504
to a city's provision of public bus services. Thus, the outcome of this
case, including the potential for appeals by existing parties,
implicates *stare decisis* concerns which support intervention of right.
[See]{.underline} [Miller]{.underline}, 103 F.3d at 1247 (finding
impairment factor implicated in First Amendment case where the
applicant, the Michigan Chamber of Commerce, asserted that "the
precedential effect of an adverse ruling in the district court could
hinder its own efforts to litigate the validity of Michigan's system for
regulating campaign finance both in currently ongoing cases and in
future challenges"). [See also]{.underline} [United States v. City of
Los Angeles, Cal.]{.underline}, 288 F.3d 391, 400 (9^th^ Cir. 2002)
(holding that amicus status may be insufficient to protect the rights of
an applicant for intervention "because such status does not allow \[the
applicant\] to raise issues or arguments formally and gives it no right
of appeal").

**(d) [The United States' Interest is Inadequately Represented by
Existing Parties.]{.underline}**

The fourth and final element to justify intervention of right is
inadequate representation of the United States' interest by existing
parties to the litigation. The burden to show inadequate representation
"is minimal because the movant need not prove that the representation
will in fact be inadequate, but only that it 'may be' inadequate\[.\]"
[Jordan v. Mich. Conference of Teamsters Welfare Fund]{.underline}, 207
F.3d 854, 863 (6^th^ Cir. 2000) (quoting [Miller]{.underline}, 103 F.3d
at 1247); [see also]{.underline} [Stupak-Thrall]{.underline}, 266 F.3d
at 472 ("\[W\]e have recently gone so far as to say that 'proposed
intervenors need only show that there is a *potential* for inadequate
representation.'") (quoting [Grutter]{.underline}, 188 F.3d at 400)
(emphasis in original). [Jordan]{.underline}, 207 F.3d at 863.
"\[I\]nterests need not be wholly 'adverse' before there is a basis for
concluding that existing representation of a 'different' interest may be
inadequate." [Jansen]{.underline}, 904 F.2d at 343, [quoted
in]{.underline} [Purnell]{.underline}, 925 F.2d at 950. "\[I\]t may be
enough to show that the existing party who purports to seek the same
outcome will not make all of the prospective intervenor's arguments."
[Miller]{.underline}, 103 F.3d at 1247. [But see]{.underline}
[Bradley]{.underline}, 828 F.2d at 1192 ("A mere disagreement over
litigation strategy or individual aspects of a remediation plan does
not, in and of itself, establish inadequacy of representation.").

In this case, the United States' interest in enforcing the ADA and
section 504 to advance the public interest in ending illegal disability
discrimination with regard to access to public transportation is
inadequately represented by the existing parties. Given the complexity
of the statutory and regulatory scheme governing public transportation,
the United States' participation is necessary to ensure that the
defendant meets its obligations to provide equal access to the City's
public bus system for persons with disabilities. Moreover, the
Department's interest, on behalf of the public, in a clear and
consistent interpretation and application of relevant title II and
section 504 provisions cannot be adequately represented by the parties
in this case. The Department brings to this action the Civil Rights
Division's unique familiarity with the statutes at issue, and extensive
experience in investigating and litigating disability discrimination
complaints, including complaints relating to the provision of public
transportation. Such experience and expertise will be necessary in order
to litigate this case to advance the United States' interests on behalf
of the public.

Because the United States can prove each of the requisite elements for
Rule 24(a)(2) intervention, we respectfully request that this Court
grant our application for intervention of right.

**2. [The United States Should Be Granted Permissive
Intervention.]{.underline}**

Rule 24(b) states, in part:

> Upon timely application anyone may be permitted to intervene in an
> action . . . when an applicant's claim or defense and the main action
> have a question of law or fact in common. When a party to an action
> relies for ground of claim or defense upon any statute or executive
> order administered by a federal or state governmental officer or
> agency or upon any regulation, order, requirement or agreement issued
> or made pursuant to the statute or executive order, the officer or
> agency upon timely application may be permitted to intervene in the
> action. In exercising its discretion the court shall consider whether
> the intervention will unduly delay or prejudice the adjudication of
> the rights of the original parties.

Fed. R. Civ. P. 24(b). [See also]{.underline}
[Stupak-Thrall]{.underline}, 226 F.3d at 472 (discussing standard, and
noting that after timeliness and common question factors are
established, the court will balance remaining factors in exercising its
discretion to grant or deny the application); [Miller]{.underline}, 103
F.3d at 1248 (noting, in dicta, that where the district court
"permitt\[ed an organization\] to participate in briefing and oral
argument as amicus curiae, it is difficult to see how granting
intervention would have materially increased either delay or
prejudice").

As discussed above in conjunction with the Rule 24(a) analysis, herein
incorporated, the United States' application for intervention is timely.
[See]{.underline} [Velsicol Chem. Corp. v. Enenco, Inc.]{.underline}, 9
F.3d 524, 531 (6^th^ Cir. 1993) (clarifying that timeliness is threshold
inquiry in Rule 24(b) permissive intervention analysis). The United
States' claims against the defendant share common questions of law and
fact with those in the pending litigation. As do the plaintiffs, the
United States would assert as a common question of law whether the
defendant's conduct with regard to the provision of public bus services
violates title II and section 504, and the relevant implementing
regulations. The basis for the factual allegations in the United States'
proposed Complaint in Intervention is, essentially, the same basis for
the plaintiffs' allegations of discrimination by the City. And, as
discussed with regard to intervention of right, the United States'
participation as intervenor would neither unduly delay the proceedings
nor prejudice the adjudication of the rights of the original parties.

Furthermore, the Department's involvement in this case would fall
squarely within that contemplated by the language of Rule 24(b).
[See]{.underline} Fed. R. Civ. P. 24 advisory committee's note
(explaining that subsection (b) was amended in 1946 to include explicit
reference to governmental agencies and officers in order to avoid
exclusionary construction of the rule, and citing, with approval, cases
in which governmental entities were permitted to intervene). The
Department has a central role in administering and enforcing title II,
and has developed experience and familiarity with section 504
requirements from reviewing, pursuant to Executive Order 12250, all such
regulations relating to disability discrimination for all federal
agencies. The Department's extensive regulatory work further evidences
the United States' vital interest in enforcing the statutes and
regulations at issue on behalf of the public interest in ending illegal
disability discrimination. [See, e.g.]{.underline}, [Halderman v.
Pennhurst State Sch. & Hosp.]{.underline}, 612 F.2d 84, 92 (3d Cir.
1979) (en banc) (permitting United States to intervene based on its
enforcement of federal statute and regulations protecting individuals
with developmental and cognitive disabilities, and noting therein,
"Large amounts of federal funds flow to Pennsylvania from the federal
government, and the United States is vitally interested in the
enforcement of the conditions on which those grants are made."). And, as
discussed above, that interest is paramount where at issue are
critically important public services such as the City's provision of
public transportation.

For these reasons, and those addressed in our discussion of intervention
of right, we respectfully request that this Court grant our motion to
intervene by permission.

**[Conclusion]{.underline}**

For the reasons set forth above, this Court should grant the United
States' motion to intervene.

Respectfully submitted, this 17^th^ day of March, 2005

ALBERTO R. GONZALES

Attorney General of the United States

STEPHEN J. MURPHY R. ALEXANDER ACOSTA

United States Attorney Assistant Attorney General

Eastern District of Michigan Civil Rights Division

> JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

ALLISON J. NICHOL, Deputy Chief

> Disability Rights Section
>
> Civil Rights Division

[/s/ Judith Levy]{.underline} [/s/ Laura F. Einstein]{.underline}

JUDITH LEVY LAURA F. EINSTEIN

Assistant United States Attorney AMANDA MAISELS

United States Attorney's Office KATHLEEN P. WOLFE

Eastern District of Michigan WONKEE MOON

211 West Fort Street, Suite 2001 Trial Attorneys

Detroit, MI 48226 Disability Rights Section

Telephone: (313) 226-9100 Civil Rights Division

U.S. Department of Justice - NYA

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Telephone: (202) 307-0663

# CERTIFICATE OF SERVICE

I hereby certify that on March 17, 2005, I electronically filed the
following with the Clerk of the Court using the Electronic Case
Management System: (1) the United States' Motion to Intervene of Right,
or, Alternatively, to Intervene by Permission; and (2) the Memorandum of
Points and Authorities in Support of the United States' Motion to
Intervene of Right, or, Alternatively, to Intervene by Permission.

I further certify that copies of both filings were mailed by Federal
Express Overnight Delivery to the following non-ECF participants:

Richard H. Bernstein

Marya Sieminski

Law Offices of Samuel I. Bernstein

31100 Northwestern Highway

Farmington Hills, Michigan 48334

Valerie A. Colbert-Osamuede

Andrew R. Javis

City of Detroit Law Department

660 Woodward Avenue

1650 First National Building

Detroit, Michigan 48226

[/s/ Judith E. Levy]{.underline}

Judith E. Levy

[^1]: ^?^ The United States understands that on March 17, 2005, the
    plaintiffs filed a motion to dismiss without prejudice David
    Barnett's claims in this action and a motion to amend the complaint
    to reflect Mr. Barnett's removal from the case.

[^2]: ^?^ The United States is aware that, pursuant to the Court's
    direction, the parties have met, and continue to meet, to discuss
    the possibility of settling this matter. The United States'
    arguments in support of intervention, and the factors relevant to
    that determination, are equally applicable should this case be
    resolved short of trial. It is the Department's policy to work
    towards an equitable and judicious resolution of all cases in which
    we intervene. Should our motion be granted, we believe that our
    participation in settlement discussions would facilitate the
    possibility of such a resolution in this case.

[^3]: ^?^ The plaintiffs' lawsuit as initially filed also named the
    United States Department of Transportation as a defendant. On
    October 4, 2004, pursuant to a stipulated request by the plaintiffs
    and the United States Department of Transportation, this Court
    dismissed the Department of Transportation from the lawsuit.