IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

C.A. NO. 96-K-370

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. )

)

)

THE CITY AND COUNTY OF )

DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr.

DEPARTMENT; and THE CIVIL )

SERVICE COMMISSION FOR THE )

CITY AND COUNTY OF DENVER, )

)

Defendants. )

)

[PLAINTIFF UNITED STATES\' RESPONSE]{.underline}

[TO DEFENDANTS\' MOTION TO DISMISS]{.underline}

I. BACKGROUND

On February 15, 1996, the United States filed this action alleging,
[inter]{.underline} [alia]{.underline}, that defendants\'[^1] policy and
practice of denying employment opportunities to qualified individuals
with disabilities in the Denver Police Department, including Jack
Davoll, violated title I, 42 U.S.C. § 12112, and title II, 42 U.S.C. §
12132, of the Americans with Disabilities Act of 1990 (\"ADA\").

Defendants have moved to dismiss under Federal Rule of Civil Procedure
12(b)(1) and 42(a) arguing that: (1) the United States has not met the
procedural requisites for filing a complaint under title I of the ADA;
(2) the private plaintiffs\' lawsuit, [Davoll v. Webb]{.underline}, C.A.
No. 93-K-2263 (\"[Davoll]{.underline}\"), extinguishes the right of the
United States to file its own suit under the ADA; and (3) the United
States\' complaint is duplicative and prejudices the defendants.

These arguments are without merit and this Court should deny
defendants\' motion. As we demonstrate below, the United States has
properly exercised its enforcement authority under both titles I and II
of the ADA. Defendants\' papers reflect a misunderstanding of the
statute\'s separate remedial structures for titles I and II as well as a
confusion about the nature and scope of the Attorney General\'s
enforcement role vis-a-vis private plaintiffs under these titles.

II\. [ARGUMENT]{.underline}

Title I of the ADA prohibits employment discrimination on the basis of
disability. 42 U.S.C. § 12112; 28 C.F.R. pt. 1630, at 384. Title II of
the ADA prohibits discrimination on the basis of disability in all of
the services, programs, and activities, including employment, of public
entities (state and local governments). 42 U.S.C. § 12132; 28 C.F.R. pt.
35, at 436.[^2] The United States has properly brought suit against the
defendants under both titles. One of the stated purposes of the ADA is
\"to ensure that the Federal Government plays a central role in
enforcing the standards established in this Act on behalf of individuals
with disabilities.\" 42 U.S.C. § 12101(b)(3). Consistent with this
purpose, both titles I and II give the U.S. Department of Justice
authority to file suit to enforce the rights guaranteed to individuals
under the ADA.

A. [The United States Has Properly Exercised Its Enforcement Authority
In Filing This Complaint Under Titles I and II of The ADA]{.underline}

1.  **The Attorney General Has Authority To Initiate Suits Against
    Public Employers** **Under Title I**

For enforcement of title I, Congress adopted the powers, remedies and
procedures from title VII of the Civil Rights Act of 1964 (\"title
VII\"), 42 U.S.C. § 2000e [et]{.underline} [seq]{.underline}., which
prohibits discrimination in employment on the basis of race, color,
religion, sex, and national origin.[^3] Two provisions of Title VII
(sections 706 and 707) authorize the Attorney General to bring suits
against public employers such as the defendants. 42 U.S.C. §§
2000e-5(f)(1), 2000e-6. It is the latter provision, section 707, 42
U.S.C. § 2000e-6, which is invoked in this suit. [See]{.underline} U.S.
Complaint ¶ 2 (Plaintiff\'s Exhibit A). Section 707 provides, in part:

> Whenever the Attorney General has reasonable cause to believe that any
> person or group of persons is engaged in a pattern or practice of
> resistance to the full enjoyment of any of the rights secured by this
> section, and that the pattern or practice is of such a nature and is
> intended to deny the full exercise of the rights herein described, the
> [Attorney General may bring a civil action in the appropriate district
> court of the United States]{.underline}\....

42 U.S.C. §2000e-6(a) (emphasis added).

While section 706 is designed to vindicate individual instances of
discrimination,[^4] the thrust of section 707 is \"to provide the
government with a swift and effective weapon to vindicate the broad
public interest in eliminating unlawful practices, at a level which may
or may not address the grievances of particular individuals.\" [United
States v. Alegheny-Ludlum Indus.]{.underline}, 517 F.2d 826 (5th Cir.
1975), [cert]{.underline}. [denied]{.underline}, 425 U.S. 944 (1976).
Section 707 authorizes the Attorney General to bring a civil action
against any person or group of persons whom she has reasonable cause to
believe were engaged in a pattern or practice of discrimination. 42
U.S.C. § 2000e-6. Nowhere does section 707 require a specific
complainant or a referral from the Equal Employment Opportunity
Commission (\"EEOC\") as condition precedent to a lawsuit nor is the
Attorney General obliged to follow procedures established by the EEOC.
[United States v. New Jersey]{.underline}, 473 F. Supp. 1199, 1205
(D.N.J. 1979).

Courts have routinely acknowledged the Attorney General\'s self-starting
section 707 authority to bring pattern or practice actions against state
and local governments. [See]{.underline} [United States v. City of
Miami, Fla.]{.underline}, 664 F.2d 435, 436-37 (5th Cir. 1981)

(en banc) (\"Congress has now explicitly authorized only the Attorney
General\" to file pattern or practice suits); [United States v. North
Carolina]{.underline}, 587 F.2d 625, 626 (4th Cir. 1978)

(the \"Attorney General \[has\] full and complete authority in the
initiation of litigation with respect to State or local government or
political subdivisions\' under Section 707 of the \[Civil Rights\]
Act\"), [cert]{.underline}. [denied]{.underline}, 442 U.S. 909 (1979);
[United States v. City of Yonkers]{.underline}, 592 F. Supp. 570, 584
(S.D.N.Y. 1984) (the only prerequisite to the Attorney General\'s
authority to bring a pattern or practice suit is the unreviewable
determination that reasonable cause exists); [accord]{.underline}
[United States v. Masonry Contractors Ass\'n of Memphis,
Inc.]{.underline}, 497 F.2d 871, 876 (6th Cir. 1974); [United States v.
New Jersey]{.underline}, 473 F. Supp. 1199, 1205 (D.N.J. 1979); [United
States v. International Ass\'n of Bridge, Structural and Ornamental Iron
Workers, Local No. 1]{.underline}, 438 F.2d 679, 681 (7th Cir. 1971);
[EEOC v. Chicago Miniature Lamp Works]{.underline}, 526 F. Supp. 974,
976 (N.D. Ill. 1981).

Nonetheless, defendants contend that the United States has not met the
procedural requisites for filing a complaint under title I of the ADA
because the Attorney General \"has never issued \[a Letter of Findings\]
regarding the Title I claim\....\" Defendants\' Motion to Dismiss
(\"Defendants\' Motion\") at 2. This argument reflects a fundamental
misunderstanding of the ADA\'s remedial structure. Such a letter is not
a prerequisite to a pattern or practice suit brought under the Attorney
General\'s independent pattern or practice authority to initiate title I
lawsuits against a public employer.

> **2.** **The Attorney General Has Authority To Initiate**

**Suits Against Public Employers Under Title II**

The United States\' complaint is also predicated on title II

of the ADA, 42 U.S.C. § 12131 [et]{.underline} [seq]{.underline}.,
[see]{.underline} U.S. Complaint ¶¶ 1, 2 (Plaintiff\'s Exhibit A), which
prohibits disability discrimination in all of the programs, services and
activities (including employment) of public entities, such as
defendants. [See]{.underline} 42 U.S.C. § 12132. Like title I, title II
is modeled after earlier civil rights statutes. Although title II
coverage is not dependent on the receipt of federal funds, the remedies
are borrowed from previous statutes which prohibited discrimination in
federally assisted programs and activities. Title II of the ADA states:

The remedies, procedures, and rights set forth in section 794a of title
29 shall be the remedies, procedures, and rights this subchapter
provides to any person alleging discrimination on the basis of
disability in violation of section 12132 of this title.

42 U.S.C. § 12133.

Section 505 of the Rehabilitation Act, in turn, provides that the
\"remedies, procedures, and rights set forth in title VI of the Civil
Rights Act of 1964 \[42 U.S.C. § 2000d et seq.\] shall be available by
any person aggrieved\....\" 29 U.S.C. § 794a(a)(2). Title VI provides:

> Compliance \... may be effected (1) by the termination of or refusal
> to grant or to continue \[federal financial\] assistance\..., or (2)
> by any other means authorized by law: [Provided, however,]{.underline}
> That no such action shall be taken until the department or agency
> concerned has advised the appropriate person or persons of the failure
> to comply with the requirement and has determined that compliance
> cannot be secured by voluntary means.

42 U.S.C. § 2000d-1.

Under title VI, the phrase \"by any other means authorized by law\" has
been understood to mean that a funding agency, after finding a violation
and determining that voluntary compliance is not forthcoming, could
refer a matter to the Department of Justice to enforce the statute\'s
nondiscrimination requirements in court.[^5]

Under title VI and the Rehabilitation Act, the funding agencies adopted
procedures to investigate complaints of violations filed by individuals.
The Department of Justice adopted similar procedures when enacting the
title II regulations. 28 C.F.R. pt. 35, subpart F. The title II
regulation also provides that where voluntary compliance cannot be
obtained, the matter must be referred to the Attorney General for
appropriate action. 28 C.F.R. § 35.174. Because fund termination
procedures are inapplicable to state and local government entities that
receive no federal funds, Congress anticipated that Attorney General
lawsuits under title II would be \"the major enforcement sanction for
the Federal government.\" S. Rep. No. 116, 101st Cong., 1st Sess. 57
(1989).

There is no question that Attorney General has met all of the procedural
requisites for filing a suit under title II. 28 C.F.R. §§ 35.173 and
35.174. The Department of Justice investigated the administrative
complaint filed by Jack Davoll, issued a letter of findings and
attempted, unsuccessfully, to resolve the matter before the complaint
was filed.[^6]

B. [Suits Brought By The United States Are Not Subject To Fed. R. Civ.
P. 23 Class Certification Requirements]{.underline}

Claiming that plaintiff has made no allegations to support class
certification, defendants urge the Court to dismiss this action based on
the Court\'s earlier reasoning denying the private plaintiffs class
certification. Defendants\' Motion at 5; [see]{.underline} [Davoll v.
Webb]{.underline}, 160 F.R.D. 142 (D. Colo. 1995). But, in numerous
Title VII actions, the Supreme Court has held unequivocally that actions
brought by the United States are not subject to Rule 23. In ruling that
the EEOC may seek class-wide relief without being certified under Rule
23, the Court noted:

> Prior to 1972, the Department of Justice filed numerous § 707
> pattern-or-practice suits\.... In none was it ever suggested that the
> Attorney General sued in a representative capacity or that his
> enforcement suit must comply with the requirements of Rule 23. Nor has
> it been so suggested in § 707 suits brought since 1972.

[General Tel. Co. of the N.W. v. EEOC]{.underline}, 446 U.S. 318, 327 &
n.9 (1980) (citations omitted); [see]{.underline} [also]{.underline}
[Donovan v. University of Texas at El Paso]{.underline}, 643 F.2d 1201,
1203 (5th Cir. 1981) (\"it is now clear from [General
Telephone]{.underline} that Government Title VII actions are not
governed by Rule 23\"). Thus, Rule 23 does not apply to suits brought by
the United States under either section 706 or section 707 and by
reference under title I of the ADA.

In [Southwest v. Falcon]{.underline}, 457 U.S. 147 (1982), the Court
addressed the difference between action brought by a
[private]{.underline} litigant and the government. In acknowledging this
distinction, the [Falcon]{.underline} Court noted that:

> In exercising \[its\] enforcement power, the \[government\] may seek
> relief for groups of employees or applicants for employment without
> complying with the strictures of Rule 23. Title VII, however, contains
> no special authorization for class suits maintained by private
> parties. An individual litigant seeking to maintain a class action
> under Title VII must meet \"the prerequisites of numerosity,
> commonality, typicality, and adequacy of representation specified in
> Rule 23(a).

[Id.]{.underline} (citations omitted).

In short, the relevant case law has repeatedly and consistently
recognized that Rule 23 is inapplicable to cases where the Attorney
General is endeavoring to \"vindicate the public interest in preventing
employment discrimination.\" [General Telephone]{.underline}, 446 U.S.
at 326; [see also]{.underline} [EEOC v. Occidental Life Ins. of
Cal.]{.underline}, 535 F.2d 533, 542 (9th Cir. 1976) (the government is
\"charged with the vindication of public policy, not merely the
enforcement of private rights\"), [aff\'d]{.underline}, 432 U.S. 355
(1977). Defendants\' attempt to subject the United States to the
requirements of Federal Rules of Civil Procedure 23 is unfounded and
once again reflects a basic misunderstanding of the ADA\'s requirements
and procedures.

C. [Private Plaintiffs\' Lawsuit Does Not Bar The United States From
Filing A Complaint Under The ADA]{.underline}

Defendants do not explain their statement that \"\[Jack\] Davoll\'s
initiation of a private lawsuit terminates the \[United States\'\]
authority to bring an action on his behalf \[because\] there is no
statutory grant of authority to do so.\" Defendants\' Motion at 2. As
discussed previously, the ADA unambiguously authorizes the Attorney
General to initiate this action under title I and under title II. This
authority is not extinguished when private plaintiffs file suit under
title I or II. [United States v. City of Philadelphia]{.underline}, 499
F. Supp. 1196, 1200 (E.D. Pa. 1980) (\"Congress in enacting Title VII of
the Civil Rights Act of 1964 \... gave the Attorney General the
authority to bring independent \'pattern or practice\' cause of action
against public employers under Section 707 of Title VII \..., and
authorized private litigants to bring their own separate causes of
action under Section 706 of Title VII\.... Where a statute provides for
both Government and private suits, they may proceed simultaneously or in
disregard of each other, since different policy considerations govern
each of these.\") (citing [Sam Fox Publishing Co. v. United
States]{.underline}, 366 U.S. 683, 689 (1961)). [United States v.
Terminal Transport Co.]{.underline}, 653 F.2d 1016, 1021 (Attorney
General section 707 action filed after, and consolidated with, the
private plaintiff\'s action). Thus, defendants\' insistence that
\"\[p\]ermitting the filing of a suit by the United States while
[Davoll]{.underline} is pending, would be to allow [two]{.underline}
lawsuits to proceed through this Court [simultaneously]{.underline},
dealing with identical issues,\" Defendants\' Motion at 3, is
unsupported by statutory and case authority.[^7]

Aside from authorizing the Attorney General to initiate lawsuits, the
ADA also allows individuals to sue to vindicate their individual rights.
The [Davoll]{.underline} plaintiffs have invoked both titles I and II in
their action.[^8] Under title I, private suits are subject to the
procedural prerequisites of Title VII. 42 U.S.C. § 12117(a);
[see]{.underline} [Petersen v. University of Wis. Bd. of
Regents]{.underline}, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993) (title I
of the ADA \"adopts the procedures set forth in Title VII of the Civil
Rights Act requiring exhaustion of administrative remedies\"); [Dertz v.
Lynn]{.underline}, 912 F. Supp. 319 (N.D. Ill. 1995); [Hardy v. Fleming
Food Cos.]{.underline}, 1996 WL 145463, at \*21 (S.D. Tex. Feb. 9, 1996)
(\"aggrieved party must first exhaust administrative remedies by filing
a charge with the EEOC\"); [see]{.underline} [also]{.underline} [Million
v. Frank]{.underline}, 47 F.3d 385 (10th Cir. 1995) (dictum).

No similar prerequisites apply for bringing private employment claims
under title II. 42 U.S.C. § 12133; [Tyler v. City of
Manhattan]{.underline}, 849 F. Supp. 1429, 1431 (D. Kan. 1994) (stating
that \"court has jurisdiction notwithstanding the fact plaintiff has not
exhausted his administrative remedies\"); [Petersen]{.underline}, 818 F.
Supp. at 1278 (title II of the ADA \"adopts the remedies, rights and
procedures of Section 505 of the Rehabilitation Act of 1973, which does
not require exhaustion of administrative remedies and allows a plaintiff
to go directly to federal court\") (citing [Smith v.
Barton]{.underline}, 914 F.2d 1330, 1338 (9th Cir. 1990),
[cert]{.underline}. [denied]{.underline}, 501 U.S. 1217 (1991));
[see]{.underline} [also]{.underline} [Finley v. Giacobbe]{.underline},
827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993) (\"\[b\]ecause plaintiff\'s
claim has been brought under Title II, rather than Title I, of the ADA
there is no requirement that she exhaust administrative remedies prior
to filing suit in federal court\"); [Ethridge v. State of
Alabama]{.underline} 847 F. Supp. 903, 906-07 (M.D. Ala. 1993) (title II
of the ADA does not require exhaustion of administrative remedies); [Doe
v. County of Milwaukee]{.underline}, 871 F. Supp. 1072 (E.D. Wis. 1995)
(same).

Defendants also argue that the United States has somehow acted unfairly
because, as they contend in their summary judgment papers in the
[Davoll]{.underline} action, private plaintiffs failed to obtain a
timely right to sue notice and therefore, their claims cannot proceed.
This argument, if valid at all, is relevant only to the
[Davoll]{.underline} plaintiffs\' title I claim and not their title II
claim. In any event, however, any procedural defects which affect
private suits under the ADA are not applicable to this separate action
brought by the United States.[^9]

III\. [CONCLUSION]{.underline}

For the foregoing reasons, defendants\' Motion to Dismiss should be
denied.

> Respectfully submitted,\
> DEVAL L. PATRICK\
> Assistant Attorney General\
> Civil Rights Division\
> \
> \
> \
> By: [                      ]{.underline}\
> JOAN A. MAGAGNA\
> EUGENIA ESCH\
> SHEILA M. FORAN\
> Attorney\
> United States Department of Justice\
> Civil Rights Division\
> Disability Rights Section\
> P.O. Box 66738\
> Washington, D.C. 20035-6738\
> (202) 616-2314

[^1]: ^?^ Defendants are the City and County of Denver, the Denver
    Police Department and the Civil Service Commission for the City and
    County of Denver. They are referred to throughout as \"defendants.\"

[^2]: ^?^ Defendants do not seem to dispute that they are \"employers\"
    within the meaning of title I, 42 U.S.C. §§ 12111(5), 12111(7) and
    2000e(a), or \"covered entities\" within the meaning of title II, 42
    U.S.C. § 12131. Their argument is rather that the government has
    failed to meet the procedural requirements for filing suit against
    them under the ADA.

[^3]: ^?^ Title I of the ADA states:

    > The powers, remedies, and procedures set forth in sections 705,
    > 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C.
    > 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the
    > powers, remedies, and procedures this title provides to the
    > Commission, to the Attorney General, or to any person alleging
    > discrimination on the basis of disability in violation of any
    > provision of this Act, or regulations promulgated under section
    > 106, concerning employment.

    42 U.S.C. § 12117(1).

[^4]: ^?^ Under section 706, the Attorney General can sue public

    employers only after an individual has filed a charge with EEOC, and
    that agency has investigated, made a finding of reasonable cause and
    been unable to conciliate the charge. 42 U.S.C. § 2000e-5. The EEOC
    has authority to sue private employers but must refer charges
    against public employers to the Attorney General who may then sue to
    obtain relief on behalf of individual victims of discrimination.

[^5]: ^?^ [See]{.underline} [National Black Police Ass\'n, Inc. v.
    Velde]{.underline}, 712 F.2d 569, 575 & n.33 (D.C. Cir. 1983),
    [cert]{.underline}. [denied]{.underline}, 466 U.S. 963 (1984);
    [United States v. Marion County Sch. Dist.]{.underline}, 625 F.2d
    607, 612 & n.12 (5th Cir. 1980), [cert]{.underline}.
    [denied]{.underline}, 451 U.S. 910 (1981); [see]{.underline}
    [also]{.underline} [Cannon v. University of Chicago]{.underline},
    441 U.S. 677, 712 n.49 (1979) (relevant legislative history of title
    VI).

[^6]: ^?^ On August 22, 1994, and following its investigation of

    Mr. Jack Davoll\'s title II complaint, the United States provided to
    the defendants detailed reasons why their failure to provide a
    reasonable reassignment or transfer as a reasonable accommodation
    for Mr. Davoll violated title II. Defendants were also invited to
    negotiate an agreement. [See]{.underline} Plaintiff\'s Exhibit B.
    But on October 20, 1994, defendants replied that they were unwilling
    to enter into any such negotiations. [See]{.underline} Plaintiff\'s
    Exhibit C. These steps were the only ones required prior to suit
    under title II. However, on March 9, 1995, the United States advised
    defendants that based on the information it had gathered in the
    investigation of Mr. Davoll\'s case the United States was

    expanding its inquiry to determine whether defendants were engaged
    in a pattern or practice of discrimination in violation of title I
    of the ADA. [See]{.underline} Plaintiff\'s Exhibit D. On July 18,
    1995, the United States notified defendants that defendants\' policy
    of not reassigning or transferring persons with disabilities to
    appropriate vacant positions constituted a pattern or practice of
    discrimination under title I of the ADA and invited the defendants
    to enter into a consent decree. [See]{.underline} Plaintiff\'s
    Exhibit E. Once again the defendants declined. [See]{.underline}
    Plaintiff\'s Exhibit F. Subsequent efforts to resolve this matter in
    November 1995 and as recently as February 8, 1996, were also
    unsuccessful. On February 15, 1996, the United States filed its
    complaint.

[^7]: ^?^ To the extent that defendants are attempting to argue that the
    United States is collaterally estopped, such an argument is
    baseless. Collateral estoppel bars a party from re-litigating, in a
    second proceeding, an issue of fact or law that was litigated and
    actually [decided]{.underline} in a prior proceeding. [Allen v.
    McCurry]{.underline}, 449 U.S. 90, 95 (1980); [Montana v. United
    States]{.underline}, 440 U.S. 147 (1979); [Brown v.
    DeLayo]{.underline}, 498 F.2d 1173 (10th Cir. 1974). Here, the
    [Davoll]{.underline} suit is pending. No valid and final judgment on
    the merits has been issued. Moreover, the United States has not been
    a party to the [Davoll]{.underline} suit, and has not had a full and
    fair opportunity to litigate the issues. In any event, the Supreme
    Court has recognized that \"\[a\] rule allowing nonmutual collateral
    estoppel against the government \... would substantially thwart the
    development of important questions of law by freezing the first
    final decision rendered on a particular legal issue.\" [United
    States v. Mendoza]{.underline}, 464 U.S. 154, 160, 162 (1984).

[^8]: ^?^ [See]{.underline} [Davoll]{.underline} Plaintiffs\' Response
    to Defendants\' Motion for

    Summary Judgment at 19 n.24, filed March 5, 1996.

[^9]: ^?^ Defendants are equally unsuccessful if they intend to invoke
    the doctrine of unreasonable delay or laches when they claim that
    the United States has had jurisdiction over Mr. Davoll\'s complaint
    since May 1992. Defendants have not shown \"unreasonable and
    unexcused delay\" by the United States. [Hukkanen v. International
    Union of Operating Eng\'rs]{.underline}, 3 F.3d 281, 286 (8th Cir.
    1993). Moreover, this affirmative defense, which must be raised in
    the pleadings or is deemed waived is unavailable here.
    [See]{.underline} [United States v. One (1) 1963, Hatteras Yacht Ann
    Marie]{.underline}, 584 F.2d 72, 76 (5th Cir. 1978). Laches is
    inapplicable to section 707 lawsuits: \"\'laches or neglect of duty
    on the part of officers of the Government is no defense to a suit by
    it\'\" because the United States seeks \"\'to enforce a public right
    or protect a public interest.\'\" [United States]{.underline} v.
    [City of Warren]{.underline}, 759 F. Supp. 355 (E.D. Mich.
    1991)[United States v. City of Warren]{.underline}, 759 F. Supp.
    355, 364 (E.D. Mich. 1991) (citation omitted); [United States v. Lee
    Way Motor Freight, Inc.]{.underline}, 625 F.2d 918, 935 (10th Cir.
    1979) (dicta).