Number range CHAPTERJANET RENO

Attorney General

PAUL M. GAGNON

United States Attorney

DAVID BRODERICK

Assistant United States Attorney

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

EDWARD MILLER, Attorney

KEN NAKATA, Attorney

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-3422

Attorneys For *Amicus Curiae*

United States of America

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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BETTY KITSON,

Plaintiff,

v\.

PEOPLES HERITAGE SAVINGS BANK,

Defendant.

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CHAPTER 13

Case No.: 97-12873mwv

Adv. Proc. No.: 97-01169mwv

Trial Date: November 12, 1998

**MEMORANDUM OF *AMICUS CURIAE* UNITED STATES**

**IN OPPOSITION TO**

**DEFENDANT PEOPLES HERITAGE SAVINGS BANK'S**

**MOTION TO DISMISS PLAINTIFF'S CLAIM**

**[FOR VIOLATION OF THE AMERICANS WITH DISABILITIES ACT]{.underline}**

**[INTRODUCTION]{.underline}**

Plaintiff, Betty Kitson, who is blind, applied for a home mortgage with
the Defendant, Peoples Heritage Savings Bank ("Peoples") in 1994.
Plaintiff's Third Amended Complaint, ¶¶ 15-16.[^1] According to Ms.
Kitson, she requested that her loan documents be provided to her in
recorded audio form. [Id]{.underline}. ¶ 30. Ms. Kitson alleges that
Peoples refused to provide the documents in recorded audio form, and
instead read the documents to her at the mortgage closing.
[Id]{.underline}. ¶ 24, 30-33. According to Ms. Kitson, Peoples agreed
to record the loan documents subsequent to the closing; however, to date
Peoples has not provided the documents in this format. [Id]{.underline}.
¶ 24, 30-33.

In August 1997, Ms. Kitson filed for bankruptcy, and in October 1997,
she filed an adversarial proceeding against Peoples as part of the
bankruptcy proceedings. The complaint alleged breach of contract, breach
of fiduciary duty, breach of good faith and fair dealing, and violations
of title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C §§
12181-12189.

On September 9, 1998, Peoples filed a Motion to Dismiss the ADA claims.
Peoples relies principally on two arguments in support of its motion.
First, Peoples argues that where state law contains anti-discrimination
provisions comparable to the ADA, a private party must notify the
relevant state administrative agency of her complaint prior to bringing
an action to enforce title III. Peoples argues that, because Ms. Kitson
did not so notify the State, she lacks a jurisdictional basis for her
ADA counts. Second, Peoples argues that Ms. Kitson lacks standing to
assert her ADA claim because she cannot demonstrate that she is likely
to seek future services from Peoples and to be denied such services in a
discriminatory manner, and therefore she cannot seek injunctive
relief.[^2] The Defendant\'s positions rest on an erroneous reading of
title III of the ADA, and should be rejected.

**[INTEREST OF THE UNITED STATES]{.underline}**

The United States has substantial responsibility for enforcement of
title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12181 [et]{.underline} [seq.]{.underline}. One of the express purposes
of the ADA, 42 U.S.C. § 12101(b)(3), is to \"ensure that the Federal
Government plays a central role in enforcing the standards established
in \[the Act\] on behalf of individuals with disabilities.\" Pursuant to
42 U.S.C. § 12186(b) and 42 U.S.C. § 12206(c)(3), the Department of
Justice has issued regulations and a Technical Assistance Manual
interpreting title III. Neither the regulations nor the Technical
Assistance Manual make any mention of the pre-suit state administrative
notice requirement that the Defendant asserts is applicable.
[See]{.underline} 28 C.F.R. 36.501(a) (1993); Department of Justice,
[The Americans with Disabilities Title III Technical Assistance
Manual]{.underline}, §§ III-8.1000, 8.2000. The absence of any mention
of such a requirement in the contemporaneous administrative
interpretation of the statute is cogent evidence of the Attorney
General\'s belief that resort to such procedures was not intended by
Congress.

Section 308(b) of title III of the ADA, 42 U.S.C. § 12188(b), provides
authority for the Attorney General to enforce the nondiscrimination
requirements where there is a pattern or practice of discrimination or
where discrimination raises an issue of general public importance. In
addition to this public enforcement, section 308(a) also provides a
private remedy to enable individuals to correct particular instances of
disability-based discrimination. Given the limited resources of the
Department of Justice, together with the volume of allegations of
discrimination, this private remedy is an important method of ADA
enforcement. The limitation sought by the Defendant in this case on the
right of an individual to bring a suit in federal court is unwarranted
by the plain language of section 308(b) of the ADA and would result in
significantly delaying the vindication of federal rights.

**[ARGUMENT]{.underline}**

I. Individuals Alleging Discrimination Based Upon Disability by Public
Accommodations Need Not Invoke State Administrative Remedies Prior to
Bringing Suit in Federal Court Under Title III of The Americans With
Disabilities Act

Title III of the ADA, 42 U.S.C. § 12181 through 12189, prohibits
discrimination on the basis of disability. Among other things, it
requires private entities that own, operate, or lease public
accommodations to provide auxiliary aids and services to persons with
disabilities to ensure that such persons are not excluded, denied
services, segregated or otherwise treated differently than other
individuals on the basis of disability. 42 U.S.C. §§ 12182(a),
12182(b)(2)(A)(iii).

Congress intended the nondiscrimination provisions of title III to be
enforced both by persons who are themselves subjected to discrimination
on the basis of disability, 42 U.S.C. § 12188(a), and by the Attorney
General, 42 U.S.C. § 12188(b). Thus, section 308(a)(1), 42 U.S.C. §
12188(a)(1), provides, in relevant part (emphasis added):

> The remedies and procedures set forth in [section
> 2000a-3(a)]{.underline} of this title are the remedies and procedures
> this subchapter provides to any person who is being subjected to
> discrimination on the basis of disability in violation of this
> subchapter or who has reasonable grounds for believing that such
> person is about to be subjected to discrimination in violation of
> section 12183.

Section 2000a-3(a) of title 42 is the codified version of section 204(a)
of the Civil Rights

Act of 1964. It provides that:

> Whenever any person has engaged or there are reasonable grounds to
> believe that any person is about to engage in any act or practice
> prohibited by section 2000a-2 of this title, a civil action for
> preventive relief, including an application for a permanent or
> temporary injunction, restraining order, or other order, may be
> instituted by the person aggrieved and, upon timely application, the
> court, may in its discretion, permit the Attorney General to intervene
> in such civil action if he certifies that the case is of general
> public importance. Upon application by the complainant and in such
> circumstances as the court may deem just, the court may appoint an
> attorney for such complainant and may authorize the commencement of
> the civil action without the payment of fees, costs, or security.

42 U.S.C. § 2000a-3(a).

Thus, the \"procedures\" for implementing the remedies afforded by the
Civil Rights Act are intervention by the Attorney General in a case
certified by the Attorney General to be of \"general public
importance,\" and, \"\[u\]pon application by the complainant and in such
circumstances as the court may deem just,\" appointment of an attorney
for the complainant and the commencement of suit without the payment of
fees, costs, or security. Neither the \"remedies\" nor the
\"procedures\" include any requirement of notice to any state or local
authority.

The notice requirement that Peoples seeks to impose comes from a
different provision of the Civil Rights Act: Section 204(c) (codified as
42 U.S.C. § 2000a-3(c)). That provision does require that in states or
other political subdivisions with statutes that offer civil rights
protections, a plaintiff must notify the relevant state or local agency
at least thirty days before

bringing an action on a claim arising under the Civil Rights Act. 42
U.S.C § 2000a-3(c).[^3] However, the ADA makes clear that title III of
the ADA specifically incorporates only section 204(a) of the Civil
Rights Act, and there is no indication in the language of the statute or
its legislative history that section 204(c) of the Civil Rights Act
pertains to ADA actions.

Title III of the ADA is not simply a carbon copy of title II of the 1964
Act, although both prohibit discrimination in places of public
accommodation. Congress recognized that discrimination based upon
disability is manifested in ways that are distinct from discrimination
on the basis of race, color, religion or national origin, and must be
addressed in a different way. Thus, rather than simply amending title II
of the 1964 Act to add disability as a prohibited basis for
discrimination, Congress enacted a comprehensive statute addressing
issues such as architectural and communication barriers, 42 U.S.C. §
12182(b)(2)(A)(iv), and provision of auxiliary aids and services, 42
U.S.C. § 12182(b)(2)(A)(iii), that were not relevant to the kinds of
discrimination prohibited by the 1964 Act. The ADA concept of public
accommodations is also much broader than that of title II of the 1964
Act. [Compare]{.underline} 42 U.S.C.§ 2000a(b) with 42 U.S.C. §
12181(7), 42 U.S.C. § 12183 (commercial facilities), 42 U.S.C. § 12184
(public transportation services provided by private entities).

Congress borrowed from the 1964 Act the remedial structure contained in
Section 204(a), but it did not thereby incorporate any of the other
provisions of Section 204. Congress could simply have repeated the
language of section 204(a) in title III of the ADA to indicate the
remedies and procedures it intended to provide to aggrieved persons. If
it had done so, there would be no argument that Congress intended to
require such persons to exhaust State or local administrative remedies.
The fact that Congress used Subsection 204(a) of the 1964 Act as a
shorthand method to refer to the remedies and procedures it intended to
provide should not change that result.

In any inquiry into the meaning of a statute, \"\[t\]he language of the
statute \[is\] the starting place.\" [Staples v. United
States]{.underline}, 511 U.S. 600, 605 (1994). The Supreme Court has
instructed \"time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it says
there.\" [Connecticut Nat\'l Bank v. Germain]{.underline}, 503 U.S. 249,
253-254 (1992).

Indeed, it is well-settled that when one statute is modeled on another,
but omits a specific provision contained in the original, \"a strong
presumption exists that the legislature intended to omit that
provision.\" [Kirchner v. Chattanooga Choo Choo]{.underline}, 10 F.3d
737, 738-739 (10th Cir. 1993) [citing]{.underline} [Bank of America v.
Webster]{.underline}, 439, 691, 692 (9th Cir. 1971); [Crane Co. v.
Richardson Constr. Co.]{.underline}, 312 F.2d 269, 270 (5th Cir. 1973).
[See also]{.underline} Frankfurter, [Some Reflections on the Reading of
Statutes]{.underline}, 47 Colum. L. Rev. 527, 536 (1947) (in construing
a statute, \"\[o\]ne must also listen attentively to what it does not
say\").

The weight of legal authority addressing this issue has rejected
Defendant's interpretation of the statute. The sole circuit court to
decide the issue has affirmed a trial court finding that no pre-suit
administrative notice exists. [Soignier v. American Bd. of Plastic
Surgery]{.underline}, 92 F.3d 547 (7th Cir. 1996), [cert.
denied]{.underline}, 117 S.Ct. 771 (1997). The District Court had
expressly rejected the argument offered by Peoples, finding that "\[b\]y
the express terms of § 12188, the only provision adopted for subchapter
III of the ADA is § 2000a-3(a). Although subsection (c) limits when
subsection (a) may be invoked, Congress only cited the latter.
Therefore, there is no requirement that parties provide notice to a
state or local authority." [Soignier v. American Bd. of Plastic
Surgery]{.underline}, NO. 95 C 2736, 1996 WL 6553, at \*1 (N.D.Ill.,
Jan. 8, 1996). In affirming that decision, the Seventh Circuit
recognized that "[there is no first obligation to pursue administrative
remedies]{.underline}" prior to bringing a title III claim. 92 F.3d at
553 (citation omitted, emphasis added).

Other courts to evaluate this issue have also found that the
administrative notice requirements of subsection (c) do not apply to the
ADA. [Botosan v. Fitzhugh]{.underline}, 1998 WL 458195 (S.D. Cal. Aug.
3, 1998); [Colorado Cross Disability Coalition v. Hermanson Family Ltd.
Partnership I]{.underline}, slip op. at 5-11 (D. Colo. Civil No.
96-WY-2492-AJ, Mar. 3, 1997); [Bercovitch v. Baldwin
School]{.underline}, 964 F. Supp. 597, 605 (D. P.R. 1997), [rev\'d on
other grounds]{.underline}, 133 F.3d 141 (1st Cir. 1998); [Coalition of
Montanans Concerned with Disabilities Inc. v. Gallatin Airport
Auth]{.underline}., 957 F. Supp. 1166, 1169 (D. Mont. 1997); [Grubbs v.
Medical Facilities of America, Inc.]{.underline}, NO. CIV. A. 94-0029-D,
1994 WL 791708, \*2-3 (W.D. Va. Sept. 23, 1994).[^4] Copies of these
opinions, as well as the [Soignier]{.underline} opinions, are attached
as Exhibit 1.

The principal case relied upon by the Defendant, [Daigle v. Friendly Ice
Cream]{.underline}, 957 F. Supp. 8 (D.N.H. 1997), is of questionable
precedential value. While it is true that Judge Devine, in
[Daigle]{.underline}, held that plaintiffs must provide written notice
to the appropriate state authority as a prerequisite to a title III
action, Defendant here has failed to address or inform the Court that in
a later case Judge Devine actually rejected his earlier holding. In
[Doukas v. Metropolitan Life Insurance Co.]{.underline}, No. CIV.
4-478-SD, 1997 WL 833134 (D. N.H. Oct. 21, 1997) (attached hereto as
Exhibit 2), which was decided eight months after [Daigle]{.underline},
Judge Devine was presented with the identical issue presented both here
and in [Daigle]{.underline}. Judge Devine specifically held that
"written notice to state authorities is not a requirement under title
III of the ADA," [id.]{.underline} at \*2, and expressly overruled his
opinion in [Daigle]{.underline}, stating that "upon further
consideration, the court finds that limiting the scope of reference to
2000a-3 to paragraph (a) is a better interpretation of the statute."
[Id.]{.underline} at \*2 n.2. The remaining cases relied upon by
Defendant, while making incorrect statutory interpretations, nonetheless
limited their rulings to permit the plaintiffs to proceed following
notice. [See]{.underline} [Mayes v. Allison]{.underline}, 983 F. Supp.
923 (D. Nev. 1997) (staying action pending notice to state
administrative agency); [Howard v. Cherry Hills Cutters,
Inc.]{.underline}, 935 F. Supp. 1148, 1149 (D. Colo. 1996) (dismissing
ADA claim, but granting leave to amend complaint to reassert ADA claim
following notice to state).[^5] Further, both [Mayes]{.underline} and
[Howard]{.underline} were decided before the Seventh Circuit implicitly
rejected the legal analysis of the opinions. [Soignier]{.underline}, 92
F.3d at 553. The United States maintains that [Mayes]{.underline} and
[Howard]{.underline} were wrongly decided, and urges the Court to reject
their approach and instead follow the weight of legal authority which,
consistent with the plain language of the statute at issue, has rejected
Peoples' arguments.

The Third Circuit faced an analogous situation in [Sperling v.
Hoffman-La Roche, Inc.]{.underline}, 24 F.3d 463 (3rd Cir. 1994). There
the issue was whether the filing of a representative complaint under the
Age Discrimination in Employment Act, 29 U.S.C. § 626(b), tolled the
statute of limitations for unnamed employees to become members of the
opt-in class. At the time the action was filed, the ADEA expressly
incorporated the statute of limitations contained in Section 6 of the
Portal-to-Portal Act, 29 U.S.C. § 255. 29 U.S.C. § 626(e)(1) (1991). The
employer argued that the tolling question should be governed by Section
7 of the Portal-to-Portal Act, 29 U.S.C. § 256, which was not
incorporated specifically into the ADEA. Section 7 would have required
employees who wished to opt-in to do so within the Section 6 statute of
limitations.

The Third Circuit noted that \"incorporation of selected provisions into
section 7(b) of \[the\] ADEA indicates that Congress deliberately left
out those provisions not incorporated.\" 24 F.3d at 470. The Court
stated that its decision was \"a fairly routine application of the
traditional rule of statutory construction pithily captured in the Latin
maxim expressio unius est exclusio alterius.\" [Ibid.]{.underline} That
principle applies equally here.

The underlying rationale of Defendant's argument is that all of Section
204 is incorporated into the ADA. However, such a finding would lead to
incongruous results. For example, title III of the ADA does not refer
specifically to Section 204(d) of the 1964 Act, which applies under
title II of the 1964 Act where the alleged discrimination takes place in
a state where there is no state law prohibiting such discrimination.
Under those circumstances, Subsection 204(d) allows a court in which a
civil action is commenced pursuant to Section 204(a) to refer the matter
to the Community Relations Service (CRS) for a limited time, if it
believes there is a \"reasonable possibility of obtaining voluntary
compliance.\" Although the Defendant's rationale would suggest that
Subsection 204(d) may be followed by a court in which an ADA title III
action is filed, Congress could not have intended such a result. Since
the ADA did not expand the jurisdiction of the CRS to allow it to
mediate issues of discrimination based on disability, Congress could not
have intended Subsection 204(d) to be incorporated by implication into
title III.

Neither does the ADA refer to Subsection (b) of Section 204 of the 1964
Act, which allows a court to award attorney\'s fees to a prevailing
party other than the United States in an action brought pursuant to
Subsection 204(a). Congress certainly did not intend to incorporate
Subsection 204(b) because the ADA contains a separate attorney\'s fees
provision, 42 U.S.C. § 12205, that is applicable to all civil actions
and administrative proceedings brought pursuant to the ADA. Therefore,
Defendant's reading of the statute would render the attorney's fee
provisions of the ADA superfluous, violating a fundamental tenet that
statutes should be not be read so as to render terms meaningless.
[United States v. Campos-Serrano]{.underline} 404 U.S. 293, 301 n.14
(1971) ("(A) statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.\").

As courts have recognized, a statute \"is as significant for what it
omits as for what it says.\" [In re TMI]{.underline}, 67 F.3d 1119, 1123
(3d Cir. 1995), [cert. denied]{.underline}, 517 U.S. 1163 (1996),
[quoting]{.underline} [Williams v. Wohlgemuth]{.underline}, 540 F.2d
163, 169 n.30 (3d Cir. 1976). The inherent differences between title II
of the 1964 Act and title III of the ADA demonstrate the error in the
Defendant's attempt to pick and choose, on its own, portions of the 1964
Act to incorporate into the ADA. Rather, the plain language of Section
308 of the ADA applies. The notice provisions of the 1964 Act simply do
not apply to the ADA. Therefore, the United States respectfully requests
that this Court deny Peoples' Motion to Dismiss.

II\. Plaintiff Betty Kitson Has Standing to Assert Claims for Injunctive
and Declaratory Relief Under Title III of The Americans With
Disabilities Act

Defendant's second argument in support of its Motion to Dismiss is that
Plaintiff lacks standing because she is both unlikely to seek services
from Peoples in the future and unlikely to be denied those services.
Because this argument conflicts with the purpose and language of the
ADA, it should properly be rejected.

The Americans with Disabilities Act of 1990 is a sweeping civil rights
law designed to \"provide a clear and comprehensive national mandate for
the elimination of discrimination against persons with disabilities.\"
42 U.S.C. § 12101 (b)(1). In passing the ADA, Congress expressly found
that "unlike individuals who have experienced discrimination on the
basis of race, color, sex, national origin, religion, or age,
individuals who have experienced discrimination on the basis of
disability have often had [no legal recourse]{.underline} to redress
such discrimination." 42 U.S.C. § 12101 (a)(4) (emphasis added). Thus,
Congress stated that a primary purpose of the ADA is \"to provide clear,
strong, consistent, [enforceable]{.underline} standards addressing
discrimination against individuals with disabilities.\" Section 12101
(b)(2).

A key enforcement mechanism is the statute\'s private right of action
allowing individuals to sue for injunctive and declaratory relief.
[See]{.underline} text of 42 U.S.C. § 2000a-3(a), [supra]{.underline} at
5, n.3. Under Defendant\'s view of standing, however, this private right
of action would be rendered a nullity.

Because damages are not available in private suits under title III of
the ADA, a finding that Ms. Kitson lacks standing to seek injunctive and
declaratory relief would deprive Ms. Kitson of a forum in which to
vindicate her civil rights. To deny plaintiff such a forum would afford
Ms. Kitson \"no legal recourse to redress\" discrimination, and would
render the promises of the ADA meaningless. 42 U.S.C. § 12101(a)(4)
("findings" section of the ADA). Moreover, the failure to hear
plaintiff\'s claim would effectively immunize the sort of discrimination
allegedly perpetrated by the Defendant. Clearly this was not Congress'
intent in passing such a broad civil rights law; instead, courts should
construe civil rights legislation, including the ADA, broadly to
effectuate the purposes of the statute. [Havens Realty Corp. v.
Coleman]{.underline}, 455 U.S. 363, 372 (1982); [Trafficante v.
Metropolitan Life Ins. Co.]{.underline}, 409 U.S. 205 (1972); [see
also]{.underline} [Gladstone Realtors v. Village of
Bellwood]{.underline}, 441 U.S. 91 (1979).

Under the ADA, as under both the Fair Housing Act and the Civil Rights
Act of 1964, suits by \"private attorneys general\" are critical to
successful enforcement of the law where federal enforcement resources
are limited. [Trafficante v. Metropolitan Life Ins. Co.]{.underline},
409 U.S. 205, 211 (1972) (\"\[S\]ince the enormity of the task of
assuring fair housing makes the role of the Attorney General in the
matter minimal, the main generating force must be private suits in
which. . . the complainants act not only on their own behalf but also
\'as private attorneys general in vindicating a policy that Congress
considered to be of the highest priority.\'\"); [Newman v. Piggy Park
Enters., Inc.]{.underline}, 390 U.S. 400, 401 (1968) (private attorneys
general critical for enforcement of title II of the Civil Rights Act of
1964).

The ADA plainly covers discrimination like that alleged by Ms. Kitson.
42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iii). The statute provides relief
to:

> Any person who is being subjected to discrimination on the basis of
> disability in violation of this title . . . Nothing in this section
> shall require a person with a disability to engage in a futile gesture
> if such person has actual notice that a person or organization covered
> by this title does not intend to comply with its provisions.

42 U.S.C. § 12188(a). As with other civil rights statutes, standing
under the ADA should be interpreted as broadly as permissible under the
Constitution. [Havens Realty Corp.]{.underline}, 455 U.S. at 372;
[Trafficante]{.underline}, 409 U.S. at 205; [see also]{.underline}
[Gladstone Realtors]{.underline}, 441 U.S. at 91.

In considering a motion to dismiss, a court is "obliged to take all
facts as alleged in plaintiff\'s complaint as true and must construe
those allegations in a light most favorable to the plaintiff." [In re
Sansoucy]{.underline}, 136 B.R. 20, 22 (Bankr. D.N.H. 1992). Ms. Kitson
has alleged that she was subjected to discrimination on the basis of
disability by Peoples at the time of the closing of the loan.
Plaintiff's Third Amended Complaint, ¶ 33. She also alleges that,
despite several requests for audio tapes of the loan documents since
that time, the bank has never provided the documents on audio tape or in
any form that she can readily access and understand. Plaintiff's Third
Amended Complaint, ¶¶ 30-33, 100-102. Her allegations of the bank's
original and continuing refusal to provide the loan documents and
related documents in an accessible format constitute allegations of past
and continuing violations of the ADA. They also amount to actual notice
that Peoples did not intend to and will not in the future comply with
the ADA. As provided in the statute, the plaintiff is not obligated to
engage in the \"futile gesture\" of returning to Peoples and subjecting
herself to ongoing discrimination in order to preserve a claim against
the Bank. 42 U.S.C. § 12188(a).

In other cases involving disability discrimination with facts similar to
those at bar courts have found standing. [Duffy v.
Riveland]{.underline}, 98 F.3d 447, 452 (9th Cir. 1996) (once deaf
inmate suffered discrimination on the basis of disability, he had
standing to seek injunctive relief against the state). The same is true
for cases alleging disability discrimination under the Rehabilitation
Act of 1973. For example, in [DeLong v. Brumbaugh]{.underline}, 703 F.
Supp. 399 (W.D.Pa. 1989), the court found, despite the unavailability of
damages, that there was sufficient reality and immediacy to warrant the
issuance of relief declaring a violation of section 504 of the
Rehabilitation Act where a deaf individual was excluded from a jury. The
fact that plaintiff [might]{.underline} be called to jury service at any
time was deemed sufficient. The court found that declaratory relief
would serve the public interest and act as a vindication of the
plaintiff\'s rights and of the extent of the rights of handicapped
persons under section 504. [See]{.underline} [Wagner v. Fair Acres
Geriatric Center]{.underline}, 49 F.3d 1002, 1008 n.7 (3rd Cir. 1995)
(Rehabilitation Act case, finding standing for declaratory relief even
when standing for injunctive relief was moot); [Greater Los Angeles
Council on Deafness v. Zolin]{.underline}, 812 F.2d 1103, 1113 (9th Cir.
1987) (rejecting district court\'s finding that request for declaratory
relief was moot due to absence of current federal funding in
Rehabilitation Act case, where \"\[s\]uch relief might be appropriate as
a vindication of plaintiff\'s position and as a public statement of the
extent of handicapped persons\' rights under section 504\").

The cases cited by the Defendant do not support Defendant's position
that Ms. Kitson lacks standing to seek injunctive relief, since the
allegations made by Kitson are sufficient to withstand a motion to
dismiss. For example, in [Aikins v. St. Helena Hosp.]{.underline}, 843
F. Supp. 1329 (N.D. Cal. 1994), the court's key concern was geographic
proximity. The court dismissed for lack of standing the complaint of a
deaf woman who brought her dying husband to a hospital emergency room
when the couple was away from their primary residence on vacation. The
woman alleged that the hospital violated the ADA because it failed to
provide her with an interpreter. The court found the allegations in
plaintiff\'s complaint (stating that she owned a mobile home seven miles
from the hospital, and that she stays at the home only for [several
days]{.underline} each year), insufficient to show a real and immediate
threat of future injury at the hands of defendants. However, the court
distinguished the case before it from [Greater Los Angeles Council on
Deafness v. Baldridge]{.underline}, 827 F.2d 1353 (9^th^ Cir. 1989), in
which the court found standing to sue based on defendant's failure to
act on an administrative complaint. Furthermore, in a subsequent ruling
in the [Aikins]{.underline}, the Court found that Aikins did have
standing and granted her leave to amend her complaint because she
considered it reasonably possible that she might seek services at the
hospital. [Aikins v. St. Helena Hosp.]{.underline}, No. C 93-3933 FMS,
1994 WL 796604 (N.D. Cal. April 4, 1994) (copy attached as Exhibit 3).
Here, the geographic concerns relating to imminence are not present, Ms.
Kitson alleges a continuing relationship with the bank, and she has
alleged that the Bank has denied and continues to deny her relevant
documents in an accessible format. Plaintiff's Third Amended Complaint,
¶¶ 24, 30-33, 99-102. As in [Council on Deafness]{.underline}, the
claimed violation (original refusal to provide audio documents)
constitutes an injury; and the injury, as well as plaintiff's
relationship with the defendant, is ongoing. [See]{.underline}
[Aikins]{.underline}, 843 F. Supp. at 1334. Therefore, Ms. Kitson has
satisfied the standing requirements.

Similarly, in both [O\'Brien v. Werner Bus Lines]{.underline}, Civ. A.
No. 94-6862, 1996 WL 82484 (E.D. Pa. Feb. 27, 1996) (blind guide dog
user denied access to tour bus on one occasion) and [Atakpa v. Perimeter
Ob-Gyn Assocs.]{.underline}, 912 F. Supp. 1566, 1573-74 (N.D. Ga. 1994)
(deaf person denied interpreter in connection with her childbirth) the
plaintiffs had no contact with the defendants or their services
following the alleged discrimination. Here, it is undisputed that
Peoples and Ms. Kitson have had a business relationship since the
formation of the loan agreement. Kitson alleges that the Bank has, since
the formation of the contract, continually denied to provide the loan
documents and related documents in an accessible format (even up to the
present). Plaintiff's Third Amended Complaint, ¶¶ 24, 30\--33,
99-102.[^6]

Ms. Kitson alleges that Peoples violated the ADA by refusing, since
October 1994 to the present, to provide her with loan documents in an
accessible format. The nature of injunctive relief requested by Ms.
Kitson is specifically contemplated by the statute:

> Where appropriate, injunctive relief shall \... include requiring the
> provision of an auxiliary aid or service, modification of a policy, or
> provision of alternative methods, to the extent required by this
> title.

42 U.S.C. § 12188(a)(2). Ms. Kitson has standing to seek injunctive
relief to both remedy that harm and to ensure that such discrimination
does not occur in the future. Ms. Kitson also has standing to seek
declaratory relief under the ADA. Ms. Kitson alleges that she was
discriminated against in violation of the ADA, and her prayer for relief
includes a request for a declaratory judgment. Defendant has not
challenged this request and has offered no support for an argument that
Ms. Kitson lacks standing for such relief.[^7] Declaratory relief is
especially appropriate in this case because of the relative youth of the
ADA and concomitant uncertainty of the legal obligations, the
unavailability of monetary relief, and the public interest in
vindicating the rights of individuals with disabilities under this
important civil rights law. [See]{.underline} [Bituminous Coal Operators
Ass'n., Inc. v. International Union, United Mine Workers of
Am.,]{.underline} 585 F.2d 586, 596-97 (3^d^ Cir. 1978). [See
also]{.underline} [DeLong v. Brumbaugh]{.underline}, 703 F. Supp. 399,
405 (W.D. Pa. 1989)(public importance of vindicating plaintiff's rights
under the Rehabilitation Act). Ms. Kitson should have the opportunity to
prove facts adequate to establish her standing to seek the requested
relief, and Defendant's motion to dismiss should be denied.

**[Conclusion]{.underline}**

For the reasons stated above, the United States respectfully requests
that Defendant's Motion to Dismiss be denied.

Respectfully submitted,

PAUL M. GAGNON JANET RENO

United States Attorney Attorney General

BILL LANN LEE

DAVID BRODERICK Acting Assistant Attorney General

Assistant United States Attorney For Civil Rights

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

> By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> EDWARD MILLER
>
> KEN NAKATA
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Section
>
> U.S. Department of Justice
>
> 1425 New York Avenue, N.W.
>
> Suite 4040 Post Office Box 66738 Washington, D.C. 20035-6738
>
> \(202\) 514-3422
>
> Counsel for Amicus Curiae
>
> United States of America

[^1]: ^[?]{.underline}/^ Because this is a motion to dismiss, this Court
    must \"accept all factual allegations in the complaint as true and
    give the pleader the benefit of all reasonable inferences that can
    be fairly drawn therefrom.\" [Kost v. Kozakiewicz]{.underline}, 1
    F.3d 176, 183 (3d Cir. 1993). Such a motion should be granted only
    where it "appears beyond doubt that the plaintiff can prove no set
    of facts in support of his claim which would entitle him to relief."
    [Levine v. Diamanthuset, Inc.]{.underline}, 950 F.2d 1478, 1482 (9th
    Cir. 1991) ([quoting]{.underline} [Conley v. Gibson]{.underline},
    355 U.S. 41, 45-46 (1957).

[^2]: ^[?]{.underline}/^Peoples also argues that Ms. Kitson's ADA claims
    should be dismissed because she seeks monetary damages under title
    III. It is correct that private plaintiffs cannot seek damages under
    title III. 42 U.S.C. § 12188. However, while Plaintiff's title III
    damages request should be denied, this cannot serve as a basis to
    dismiss her ADA claim in its entirety, since Ms. Kitson is
    nonetheless entitled to injunctive and declaratory relief. See
    [infra]{.underline} at 11-17.

[^3]: ^[?]{.underline}/^Section 204(c) of the Civil Rights Act provides
    that:

    > In the case of an alleged act or practice prohibited by this
    > subchapter which occurs in a State, or political subdivision of a
    > State, which has a State or local law prohibiting such act or
    > practice and establishing or authorizing a State or local
    > authority to grant or seek relief from such practice or to
    > institute criminal proceedings with respect thereto upon receiving
    > notice thereof, no civil action may be brought under subsection
    > (a) of this section before the expiration of thirty days after
    > written notice of such alleged act or practice has been given to
    > the appropriate State or local authority by registered mail or in
    > person, provided that the court may stay proceedings in such civil
    > action pending the termination of State or local enforcement
    > proceedings.

    42 U.S.C. § 2000a-3(c).

[^4]: ^[?]{.underline}/^The legislative history of the ADA also makes
    clear that there are no prerequisites to filing a federal action
    under title III. A colloquy between Senator Harkin, one of the
    primary sponsors of the ADA and the floor manager of the bill, and
    Senator Bumpers, a co-sponsor, indicates that pursuit of
    administrative remedies is not required in suits under title III.

    > MR. BUMPERS. \* \* \* if somebody who is disabled goes into a
    > place of business, and we will just use this hypothetical example,
    > and they say, \"You do not have a ramp out here and I am in a
    > wheelchair and I just went to the restroom here and it is not
    > suitable for wheelchair occupants,\" are they permitted at that
    > point to bring an action administratively against the owner of
    > that business, or do they have to give the owner some notice prior
    > to pursuing a legal remedy?
    >
    > MR. HARKIN. First of all, Senator, there would be no
    > administrative remedy in that kind of a situation. The
    > administrative remedies only apply in the employment situation. In
    > the situation you are talking about \--
    >
    > MR. BUMPERS. That is true. So one does not have to pursue or
    > exhaust his administrative remedies in title III if it is title
    > III that is the public accommodations.

    135 Cong. Rec. 19859 (1989). [See also]{.underline} [Botosan v.
    Fitzhugh]{.underline}, No. CIV. 98-0387-R (RBB), 1998 WL 458195, at
    \*2 (S.D. Cal. Aug. 3, 1998) (finding that "the legislative history
    of the ADA does not indicate that Congress intended to adopt
    subsection(c)."); [Grubbs v. Medical Facilities of America,
    Inc.]{.underline}, Civ. A. No. 94-0009-D, 1994 WL 791708, at \*2
    (W.D. Va. Sep. 23, 1994) (noting that the legislative history of the
    ADA \"indicates that Congress did not intend to require exhaustion
    of administrative remedies for persons with disabilities\").

[^5]: ^[?]{.underline}/^This is the approach established by the Section
    204(c) of the Civil Rights Act. [See]{.underline}
    [supra]{.underline} at 5, n.3.

[^6]: ^[?]{.underline}/^Once again, the court should grant a motion to
    dismiss only where it "appears beyond doubt that the plaintiff can
    prove no set of facts in support of his claim which would entitle
    him to relief." [Levine v. Diamanthuset, Inc.]{.underline}, 950 F.2d
    1478, 1482 (9th Cir. 1991) ([quoting]{.underline} [Conley v.
    Gibson]{.underline}, 355 U.S. 41, 45-46 (1957). It is certainly
    possible that plaintiff can prove facts to show a continuing
    relationship with Peoples on the matter of the mortgage as well as
    other matters and possible discrimination in the future.

[^7]: ^[?]{.underline}/^If the Court concludes that Ms. Kitson has not
    demonstrated \"imminent\" harm because it is not sufficiently likely
    that she will seek out Peoples' services in the immediate future, it
    should nevertheless find standing, as plaintiff\'s injury is one
    \"capable of repetition but evading review.\" [Honig v.
    Doe]{.underline}, 484 U.S. 305, 318-9 (1987), [quoting]{.underline}
    [Murphy v. Hunt]{.underline}, 455 U.S. 478, 482 (1981); [Roe v.
    Wade]{.underline}, 410 U.S. 113, 125 (1973). The Supreme Court has
    recognized a plaintiff\'s standing to bring such a claim, where the
    action complained of (1) \"was in its duration too short to be fully
    litigated prior to its cessation or expiration,\" and there is (2)
    \"a reasonable expectation that the same complaining party would be
    subjected to the same action again.\" [Weinstein v.
    Bradford]{.underline}, 423 U.S. 147, 149 (1975)(per curiam); [Murphy
    v. Hunt]{.underline}, 455 U.S. at 482 (1981). [See]{.underline}
    [Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v.
    District of Columbia]{.underline}, 972 F.2d 365, 370 (D.C. Cir.
    1992).