UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

JOHN GILL SMITH, )

> )

Plaintiff, )

> ) No. 03-6494

and )

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor, )

)

v\. )

)

THE CITY OF PHILADELPHIA, )

> )

Defendant. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ )

[UNITED STATES' OPPOSITION TO DEFENDANT'S]{.underline}

[MOTION FOR JUDGMENT ON THE PLEADINGS]{.underline}

[Introduction]{.underline}

In this action, Mr. Smith alleges that the City of Philadelphia violated
the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Pennsylvania
Human Relations Act, 43 P.S. § 951 [et seq.]{.underline}, and the Human
Relations Fair Practices Ordinance, The Philadelphia Code § 9-1105 [et
seq.]{.underline}, when its paramedics failed to provide appropriate
care to him because of his HIV disease.

On August 17, 2004, the United States moved to intervene in this action
pursuant to Rules 24(a) and 24(b) of the Federal Rules of Civil
Procedure. Defendant then filed this motion for judgment on the
pleadings, arguing that plaintiff Smith's federal claims are barred by
Pennsylvania's two year statute of limitations, and that the United
States' motion to intervene is, therefore, moot. The Court granted the
United States' motion to intervene without prejudice to defendant's
assertion that the action is barred by the statute of limitations.

However the Court resolves defendant's motion with regard to Mr. Smith,
the United States may still pursue its action in this Court because it
has independent jurisdiction to sue the City under title II of the ADA
and Section 504 of the Rehabilitation Act. Then, if the United States'
claims go forward, this Court has supplemental jurisdiction pursuant to
28 U.S.C. § 1367 over Mr. Smith's state claims. Therefore, while the
configuration of this case may change, this Court's jurisdiction to hear
the federal and state claims pending in this action remains.

[Argument]{.underline}

I. [The United States Has An Independent Basis for Jurisdiction in this
Action.]{.underline}[^1]

If the Court determines that plaintiff Smith's federal claims must be
dismissed, it is well settled that the United States can pursue its
action where, as here, it has a "separate and independent basis for
jurisdiction." [Fuller v. Volk]{.underline}, 351 F.2d 323, 328 (3d Cir.
1965). In [Fuller]{.underline}, plaintiffs challenged the
constitutionality of a school redistricting plan by seeking to enjoin an
allegedly unconstitutional use of funds. Another group of parents
intervened in the action, also to challenge the redistricting plan,
alleging that their children were being compelled to attend schools
solely on the basis of race. The Court dismissed the claims of each of
the original plaintiffs because none satisfied the \$10,000
jurisdictional amount in controversy required of their claims. Even
though the original plaintiffs were dismissed, the Court permitted the
intervening parties to pursue their constitutional challenge:

> However, a court has discretion to treat the pleading of an intervenor
> as a separate action in order that it might adjudicate the claims
> raised by the intervenor. \[Citations omitted\]. This discretionary
> procedure is properly utilized in a case in which it appears that the
> intervenor has a separate and independent basis for jurisdiction and
> in which failure to adjudicate the claim will result only in
> unnecessary delay. By allowing the suit to continue with respect to
> the intervening party, the court can avoid the senseless 'delay and
> expense of a new suit, which at long last will merely bring the
> parties to the point they are now.'

Fuller, 351 F.2d at 328-29, [quoting]{.underline} [Hackner v. Guar.
Trust Co.]{.underline}, 117 F.2d 95, 98 (2d Cir.), [cert.
denied]{.underline}, 313 U.S. 559 (1941). [Accord]{.underline} [U.S.
Steel Corp. v. EPA]{.underline}, 614 F.2d 843, 845-46 (3d Cir. 1979)
("The weight of authority in the United States Courts of Appeals
supports the principle that an intervenor can continue to litigate after
dismissal of the party who originated the action."); [Hunt Tool Co. v.
Moore, Inc.]{.underline}, 212 F.2d 685, 688 (5^th^ Cir. 1955).

The United States has statutory authority to bring an independent action
under both title II of the ADA and Section 504 of the Rehabilitation
Act. Each of these statutes is based on title VI of the Civil Rights Act
of 1964. 42 U.S.C. § 2000d, and each incorporates the "remedies,
procedures and rights" set forth in title VI. [See]{.underline} [Barnes
v. Gorman]{.underline}, 536 U.S. 181, 185 (2002).

Section 602 of Title VI (42 U.S.C. 2000d-1), in turn, authorizes the
Attorney General to enforce compliance with Title VI by filing an action
in federal court. Section 602 further provides that no action can be
brought by the Department of Justice until it has notified the
appropriate persons of the violation and determined that compliance
cannot be secured by voluntary means.[^2]

In the instant case, the United States notified the City of Philadelphia
of its investigation of the events set out in plaintiff Smith's
complaint. [See]{.underline} letter from Allison Nichol to Deputy
Solicitor Lynn Sitarski, dated March 4, 2004, attached hereto as
Exhibit 1. Subsequently, the United States informed the City by
telephone and letter that the United States had determined that the City
had violated title II of the ADA and Section 504 of the Rehabilitation
Act in the City's treatment of Mr. Smith, and that the United States
intended to intervene in the pending matter. The United States further
inquired if the City had an interest in resolving the matter.
[See]{.underline} letter from Harold Jackson to Deputy Solicitor Lynn
Sitarski, dated July 28, 2004, attached hereto as Exhibit 2. The City
never indicated an interest in resolving this matter; indeed, the City's
pending motion reinforces that it continues to reject a settlement at
this time.[^3] The City did not respond to the United States' July 28
letter, and, after waiting three weeks, the United States filed its
motion to intervene.

In sum, where, as here, the United States has an independent basis for
jurisdiction, it can pursue its claims in this action, even if the Court
dismisses plaintiff's federal claims.

II\. [This Court Continues to Have Supplemental Jurisdiction Over Mr.
Smith's State and City Claims.]{.underline}

Even if the Court dismisses Mr. Smith's federal claims, the Court must
retain jurisdiction over his state and local claims under 28 U.S.C. §
1367, which provides in pertinent part:

(a) Except as provided in subsections (b) and (c) or as expressly
    provided otherwise by Federal statute, in any civil action of which
    the district courts have original jurisdiction, the district courts
    *shall* have supplemental jurisdiction over all other claims that
    are so related to claims in the action within such original
    jurisdiction that they form part of the same case or controversy
    under Article III of the United States Constitution. Such
    supplemental jurisdiction shall include claims that involve the
    joinder or intervention of additional parties. . . .

> \(c\) The district courts *may* decline to exercise supplemental
> jurisdiction over a claim under subsection (a) if\--
>
> \(1\) the claim raises a novel or complex issue of State law,
>
> \(2\) the claim substantially predominates over the claim or claims
> over which the district court has original jurisdiction,
>
> \(3\) the district court has dismissed all claims over which it has
> original jurisdiction, or
>
> \(4\) in exceptional circumstances, there are other compelling reasons
> for declining jurisdiction.

28 U.S.C. § 1367 (emphasis added).

Inasmuch as the United States has an independent basis to pursue this
action, and is permitted to remain in this action, then 28 U.S.C. §
1367(a) requires this Court to confer supplemental jurisdiction over Mr.
Smith's state and local claims. [See]{.underline} [Growth Horizons Inc.
v. Delaware County]{.underline}, 983 F.2d 1277, 1284 (3d Cir. 1993)
(discussing effect of Section 1367). All of the factors in Section
1367(a) are met here: the Court has original jurisdiction over the
United States' claims, 28 U.S.C. §§ 1343, 1345; Mr. Smith's state and
local claims are based on the same set of facts as the United States'
claims under title II of the ADA and Section 504 of the Rehabilitation
Act; and Mr. Smith and the United States seek the same kind of
compensatory and injunctive relief. [See]{.underline} [Lyon v.
Whisman]{.underline}, 45 F.3d 758, 761 (3d Cir. 1995) ("\[W\]hen the
same acts violate parallel federal and state laws, the common nucleus of
operative facts is obvious . . ."). Indeed, the last sentence of
subdivision (a) of § 1367 provides that supplemental jurisdiction shall
include claims that involve the joinder or intervention of additional
parties, thus codifying the principle of "pendent party" jurisdiction,
[i.e.]{.underline}, the court's jurisdiction over a matter where a third
party raises the related state claims. [See, e.g.]{.underline}, [Borough
of West Mifflin v. Lancaster]{.underline}, 45 F.3d 780, 788 (3d Cir.
1995).

Likewise, none of the exceptions set forth in Section 1367(c) applies
here. Mr. Smith's state and local claims do not raise a novel or complex
issue of state law. They track exactly the claims raised under title II
of the ADA and Section 504 of the Rehabilitation Act. [See]{.underline}
[Lyon]{.underline}, 45 F.3d at 761. For the same reason, it cannot be
said that the state claims "predominate" over the claims over which the
Court has original jurisdiction; the state claims raise the same issues
as the federal claims. The Court has original jurisdiction over the
United States' federal claims. Finally, the United States cannot
conceive of any exceptional circumstances or compelling reasons to deny
supplemental jurisdiction.

Thus, if the United States remains in this case, the Court must confer
supplemental jurisdiction over Mr. Smith's state and local claims.

[Conclusion]{.underline}

For the foregoing reasons, defendant's motion for judgment on the
pleadings should be denied. The Court continues to have jurisdiction
over the United States' claims, and supplemental jurisdiction over Mr.
Smith's state and local claims.

Respectfully submitted,

JOHN ASHCROFT

Attorney General of the United States

PATRICK L. MEEHAN R. ALEXANDER ACOSTA

United States Attorney Assistant Attorney General

Eastern District of Pennsylvania Civil Rights Division

NANCY GRIFFIN JOHN L. WODATCH, Chief

Assistant United States Attorney PHILIP L. BREEN, Special Legal Counsel

United States Attorney's Office ALLISON J. NICHOL, Deputy Chief

Eastern District of Pennsylvania Disability Rights Section

615 Chestnut Street Civil Rights Division

Suite 1250

Philadelphia, PA 19106

Telephone: (215) 861-8200

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

LAURA F. EINSTEIN

KATHLEEN P. WOLFE

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice - NYA

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Telephone: (202) 353-0368

[^1]: ^?^ State statutes of limitation do not run against the federal
    government where, as here, it is enforcing a public right or
    protecting a private interest. [United States v.
    Summerlin]{.underline}, 310 U.S. 414, 416 (1940) ("It is well
    settled that the United States is not bound by state statute of
    limitation or subject to the defense of laches in enforcing its
    rights."); [Chesapeake & Delaware Canal Co. v. United
    States]{.underline}, 250 U.S. 123, 125 (1919).

[^2]: ^?^ Title VI of the Civil Rights Act authorizes the Attorney
    General to bring a lawsuit to enforce title VI, [United States v.
    Marion County Sch. Dist.]{.underline}, 625 F.2d 607, 612, n.12
    (5^th^ Cir. 1980), [cert. denied]{.underline}, 451 U.S. 910 (1981),
    [Nat'l Black Police Officer Ass'n, Inc. v. Velde]{.underline}, 712
    F.2d 569, 575 & n.33 (D.C. Cir. 1983), [cert. denied]{.underline}*,*
    466 U.S. 963 (1984), and, by extension, those statutes which adhere
    to the enforcement scheme set forth in title VI. [See,
    e.g.]{.underline}, [Cannon v. Univ. of Chicago]{.underline}, 441
    U.S. 677, 704 n.36 (1979) (referencing relevant language from title
    VI legislative history in context of challenge to title IX
    enforcement scheme); [United States v. Baylor Univ. Med.
    Ctr.]{.underline}, 736 F.2d 1039, 1050 (5^th^ Cir. 1984)
    (recognizing United States' authority to sue to enforce Section
    504), [cert. denied]{.underline}, 469 U.S. 1189 (1985).

[^3]: ^?^ The United States remains open to settlement negotiations at
    any time that the City expresses an interest to participate.