**ANITA HODGKISS**

**Acting Assistant Attorney General**

**Civil Rights Division**

**JOHN L. WODATCH, Chief**

**RENEE M. WOHLENHAUS**

# Acting Deputy Chief 

**JOSEPH C. RUSSO**

**Attorney**

**Disability Rights Section**

**Civil Rights Division**

**U.S. Department of Justice**

**1425 New York Avenue, N.W., Room 4043**

# Post Office Box 66738

# Washington, D.C. 20035-6738

**Telephone: (202) 307-2229**

**Counsel for the**

**United States of America**

**IN THE UNITED STATES DISTRICT COURT**

## FOR THE CENTRAL DISTRICT OF CALIFORNIA

**WESTERN DIVISION**

**)**

**LARRY BEAUCHAMP, *et al.*, ) Case No. 98-0402 CBM(BQRx)**

**)**

> **Plaintiffs ) MEMORANDUM OF AMICUS**

**) CURIAE UNITED STATES IN**

> **) OPPOSITION TO DEFENDANT**

**) MTA's MOTION TO DISMISS**

**LOS ANGELES COUNTY METROPOLITAN )**

**TRANSIT AUTHORITY, *et al.*, ) DATE: August 24, 1998**

**) TIME: 10:00 a.m.**

**Defendants. ) COURTROOM: 11**

**)**

[INTRODUCTION]{.underline}

Plaintiffs, a class of persons with disabilities who use wheelchairs or
other mobility aids and routinely rely on Los Angeles County\'s fixed
route system for transportation, have sued the Los Angeles County
Metropolitan Transit Authority (\"MTA\"), the public entity responsible
for providing fixed route bus services in Los Angeles County, to end
alleged discrimination that denies them access to the public transit
system. MTA seeks to dismiss the complaint on alternative grounds. In
particular, MTA argues that this Court should exercise its discretion to
dismiss this case pursuant to the doctrine of primary jurisdiction[^1],
in a manner that would be inappropriate under the law as shown below.
The United States, as *amicus curiae*, urges the Court to deny MTA's
motion because the doctrine of primary jurisdiction does not apply in
this case.[^2]

There is no statutory basis to dismiss this case and refer this matter
to the United States Department of Transportation ("DOT") as MTA
suggests. Both the Rehabilitation Act and title II of the Americans with
Disabilities Act ("ADA") provide plaintiffs a private right of action
that does not require exhaustion of any administrative remedy before
filing suit. In addition, it is clear that Congress did not intend for
claims such as plaintiffs' to be referred to DOT in lieu of judicial
review. Instead, the Court should recognize plaintiffs' private right of
action and deny MTA's motion to dismiss.

**[ARGUMENT]{.underline}**

> **PRIVATE RIGHTS OF ACTION ARE GUARANTEED UNDER TITLE II OF THE ADA
> AND THE REHABILITATION ACT, AND THIS MATTER SHOULD NOT BE REFERRED TO
> THE DEPARTMENT OF TRANSPORTATION PURSUANT TO THE DOCTRINE OF PRIMARY
> JURISDICTION**

Title II of the ADA prohibits any state or local government from
discriminating on the basis of disability, and provides that no person
with a disability shall "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. In later sections, title II requires that states and localities
shall not discriminate against persons with disabilities in the
provision of fixed route transportation services. 42 U.S.C. § 12141 ---
12150. To enforce these broad guarantees, title II provides: "\[t\]he
remedies, procedures, and rights set forth in section 505 of the
Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies,
procedures, and rights this title provides to any person alleging
discrimination on the basis of disability in violation of section 202."
42 U.S.C. § 12133.

A.  [Courts Recognize A Private Right Of Action]{.underline}.

In [Cannon v. University of Chicago]{.underline}, 441 U.S. 677, 709, 99
S.Ct. 1946, 1964, 60 L.Ed. 560 (1979), the Supreme Court held that
Congress's use of language in Title IX, which is indistinguishable from
that used in the Rehabilitation Act of 1973, was intended to create a
private right of action. "Title IX was patterned after Title VI of the
Civil Rights Act of 1964." [Cannon v. Univ. of Chicago]{.underline}, 441
U.S. at 694 99 S.Ct. at 1956 (citations omitted). Title VI is also the
basis for the remedy provisions in both the ADA and Rehabilitation Act.

Since [Cannon]{.underline}, Courts have consistently found a private
right of action under the Rehabilitation Act. [Meiner v. State of
Missouri]{.underline}, 673 F.2d 969, 973 (8^th^ Cir.), [Pushkin v.
Regents of Univ. of Colorado]{.underline}, 658 F.2d 1372, 1376-80
(10^th^ Cir. 1981); [Kling v. County of Los Angeles]{.underline}, 633
F.2d 876, 878 (9^th^ Cir. 1980); [Camenisch v. Univ. of
Texas]{.underline}, 616 F.2d 127, 131 (5^th^ Cir. 1980), [vacated on
other grounds]{.underline}, 451 U.S. 390 101 S.Ct. 1830, 68 L.Ed.2d 175
(1981); [NAACP v. Medical Center]{.underline}, 599 F.2d 1247, 1258(3d
Cir. 1979); [Davis v. Southeastern Community College]{.underline}, 574
F.2d 1158, 1159 (4^th^ Cir. 1978), [rev'd on other grounds]{.underline},
442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); [Kampmeier v.
Nyquist]{.underline}, 553 F.2d 296, 299 (2^nd^ Cir. 1977); [Lloyd v.
Regional Transp. Auth.]{.underline}, 548 F.2d 1277, 1284 (7^th^ Cir.
1977).

Similarly, courts reviewing title II ADA claims have routinely found a
private right of action. [Weinreich v. Los Angeles County Metro. Transp.
Auth.]{.underline}, 114 F.3d 976 (9^th^ Cir. 1997); [Schonfeld v. City
of Carlsbad]{.underline}, 978 F. Supp. 1329, 1333 (S.D. Cal. 1997);
[Dominguez v. City of Council Bluffs]{.underline}, 974 F. Supp. 732
(S.D. Iowa W.D. 1997); [Davoll v. City of Denver]{.underline}, 943 F.
Supp. 1289, 1297 (D. Colo. 1996); [Benedrum v. Franklin
Recycling]{.underline}, 1996 WL 679402 (W.D. Pa., Sept. 12, 1996);
[Wagner v. Texas A&M Univ.]{.underline}, 939 F. Supp. 1297 (S.D. Tex.
1996); [Roe v. County of Monongohela]{.underline}, 926 F.Supp. 74 (N.D.
W.Va. 1996); [Dertz v. City of Chicago]{.underline}, 912 F. Supp. 319
(N.D. Ill. 1995); [Etheridge v. State of Alabama]{.underline}, 847 F.
Supp. 903 (M.D. Ala. 1993); [Finlay v. Giacobbe]{.underline}, 827 F.
Supp. 215 (S.D.N.Y. 1993); [Peterson v. Univ. Of Wisconsin]{.underline},
818 F. Supp. 1276 (W.D. Wisc. 1993).

> B. [The Legislative History of the ADA Confirms A Private Right of
> Action]{.underline}

The legislative history of title II of the ADA makes clear that both the
ADA and the Rehabilitation Act authorize a private right of action to
enforce the law. The report of the House Committee on Education and
Labor affirms that:

> \"\[A\]s with section 504, there is also a private right of action for
> persons with disabilities which includes the full panoply of remedies.
> Again, consistent with section 504, it is not the Committee's intent
> that persons with disabilities need to exhaust Federal administrative
> remedies before exercising the private right of action.\"

H.R. REP. NO. 485(II), at 98 (1990), [reprinted]{.underline}
[in]{.underline} 1990 U.S.C.C.A.N. 303,381.[^3]

When it wrote the ADA, Congress knew that the Rehabilitation Act
provided a private right of action. H.R. REP. NO. 101-485(III), at 52
(1990) citing [Miener v. State of Missouri]{.underline}, 673 F.2d 969
(8th Cir. 1982). [See also]{.underline} [Kling v. County of Los
Angeles]{.underline}, 633 F.2d 876, 878 (9th Cir. 1980).

Section 505 of the Rehabilitation Act of 1973 originally borrowed
enforcement language authorizing the "remedies, procedures and rights"
from title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000(a) et
seq.). 29 U.S.C. § 794a(a)(2). Title VI prohibits discrimination on the
basis of race, color or national origin in federally assisted programs.
42 U.S.C. §§ 2000d - 2000d-4a. Title II of the ADA, in turn, adopted the
"remedies, procedures, and rights" language from Section 504 of the
Rehabilitation Act. 42 U.S.C. § 12133.

> C. [The Doctrine Of Primary Jurisdiction Is Not
> Applicable]{.underline}.

Finally, the Court should reject defendant MTA's suggestion that the
case may be dismissed pursuant to the doctrine of primary jurisdiction.
[See]{.underline} MTA's Motion at 4. The doctrine of primary
jurisdiction provides that in a limited class of cases, a court may
stay, but not dismiss, litigation in order to permit time to refer a
complex matter to an administrative agency for preliminary findings when
the "protection of the integrity of a regulatory scheme dictates
preliminary resort to the agency which administers the scheme." [Cost
Management Servs v. Washington Natural Gas Co.]{.underline}, 99 F.3d
937, 949 (9^th^ Cir. 1996), [quoting]{.underline} [United States v.
General Dynamics Corp.]{.underline}, 828 F.2d 1356, 1362 (9^th^ Cir.
1987). No such purpose is served in this case where the regulations
interpreting title II and the Rehabilitation Act are easily understood
and applied, and both DOT and the Department of Justice share
enforcement responsibilities, along with private parties who may seek
enforcement through a private right of action. Finally, "a court must
not employ the doctrine unless the \... division of power \[between the
courts and the administrative agency\] was intended by Congress."
[United States v. General Dynamics]{.underline}, 828 F.2d at 1363, N.13.
That is not the case here.

The Attorney General and the Secretary of Transportation are each
authorized to promulgate regulations governing public and private
entities that provide transportation services. 28 C.F.R. §35.120-35.135;
49 C.F.R. Parts 27, 37, 38.[^4] Nowhere in either the Department's or
DOT's title II or Rehabilitation Act transportation regulations is there
any procedural requirement that persons alleging discrimination must
file a complaint with either agency before filing suit.[^5] There are
administrative enforcement procedures available to persons who prefer
administrative enforcement instead of the more costly alternative of
filing a private lawsuit, but those procedures are not mandatory. 28
C.F.R. § 35.170(a); 49 C.F.R. § 47.10. Moreover, the alternative remedy
of administrative action offered in the regulations does not offer the
same type of relief to the individual who has experienced discrimination
because the agency controls the administrative action and the
complainant cannot exercise any control over the timing or operation of
the process, the outcome, or the remedy.

Four factors are uniformly present in cases where the primary
jurisdiction doctrine properly is invoked: (1) the need to resolve an
issue that (2) has been placed by Congress within the jurisdiction of an
administrative body having regulatory authority (3) pursuant to a
statute that subjects an industry or activity to a comprehensive
regulatory scheme that (4) requires expertise or uniformity in
administration. [Id.]{.underline} at 1362 (citations omitted).

Defendant's invocation of the doctrine fails all four elements of the
Ninth Circuit's test. First, there is no issue here that the Court is
unable to resolve without the assistance of an administrative agency.
Courts routinely apply the law to the facts presented, and this case
merely requires a determination about whether MTA's failures to provide
transportation services to disabled persons traveling on public
transportation in the City of Los Angeles violate the ADA or the
Rehabilitation Act. Both statutes outlaw the same discriminatory
activities, and in both laws Congress authorized private enforcement
actions through the same statutory remedy provision. Applying civil
rights laws to the facts here does not require a special expertise
typical of most schemes in which courts have found it appropriate to
stay federal litigation to permit agency analysis under the doctrine of
primary jurisdiction. [See]{.underline} [Cal-Almond, Inc. v. United
Statess Dep't of Agriculture]{.underline}, 67 F.3d 874,882 (9^th^ Cir.
1995), [vacated on other grounds]{.underline}, 117 S.Ct. 2501.
Furthermore, there is no regulatory scheme that the Court is being asked
to protect. Rather, the City is seeking protection from being brought
into court by plaintiffs --- something the doctrine of primary
jurisdiction is not meant to prevent. [United States v.
Almany]{.underline}, 872 F.2d 924, 925 (9^th^ Cir. 1989).

Even when a case is properly deferred to an agency, courts should never
apply the doctrine in the context of a motion to dismiss. The Ninth
Circuit has held that the primary jurisdiction doctrine does not permit
dismissing a lawsuit pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure because the Court must accept as true plaintiffs'
factual allegations and the "'threshold decision' which \[defendants\]
would have \[the Court\] refer \... must necessarily be resolved in
favor of \[plaintiffs\]." [Cost Management ervs. v. Washington Natural
Gas Co.]{.underline}, 99 F.3d at 948-49.[^6]

[CONCLUSION]{.underline}

The United States, as *amicus curiae*, respectfully requests that the
Court deny MTA's Motion To Dismiss.

> Respectully submitted,

ANITA HODGKISS

> Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS

Acting Deputy Chief

Disability Rights Section

Civil Rights Division

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

JOSEPH C. RUSSO

Attorney

Disability Rights Section

Civil Rights Section

U.S. Department of Justice

1425 New York Avenue, N.W.

Room 4043

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2229

Dated: July 24, 1998

[^1]: ^?^ Notice of Motion and Motion of Defendant Los Angeles County
    Metro. Transp. Auth.'s Motion to Dismiss; Points and Authorities
    (hereafter "MTA Motion") at 4.

[^2]: ^?^ The United States has limited its argument to this aspect of
    defendant MTA's motion to dismiss and has not submitted argument on
    other pending matters. Should the Court request memoranda on any
    other issues currently pending, the United States would respond with
    additional memoranda.

[^3]: ^?^ \"Section 205 of the legislation specifies that the remedies,
    procedures, and rights set forth in section 505 of the
    Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be available with
    respect to any individual who believes that he or she is being
    subjected to discrimination on the basis of disability in violation
    of any provisions of this Act, or regulations promulgated under
    section 204, concerning public services.\" H.R. REP. NO. 485(III),
    at 52 (1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. 445,475.
    [See also]{.underline}, S. REP. NO. 116, at 57,58 (1989); H.R. REP.
    NO. 485(IV), at 39 (1990), [reprinted in]{.underline} 1990
    U.S.C.C.A.N. 267,278; H.R. REP. NO. 485(I), at 34 (1990), [reprinted
    in]{.underline} U.S.C.C.A.N. 565, 577; H.R. REP. NO. 596, at 68
    (1990).

[^4]: ^?^ Nor can it be argued that only the Department of
    Transportation regulations should apply in cases such as these. The
    DOT regulations explicitly state that "\[e\]ntities to which this
    part applies also may be subject to ADA regulations of the
    Department of Justice," and that "\[t\]he provisions of this part
    shall be interpreted in a manner that will make them consistent with
    applicable Department of Justice regulations." 49 C.F.R. § 37.21(c).
    The Department of Transportation regulations further state that they
    prevail over the Department of Justice regulations only in
    "case\[s\] of apparent inconsistency.\" [Id.]{.underline}

[^5]: ^?^ The preamble to the Department's title II regulation also
    explains that a private right of action is guaranteed under title
    II. 56 F.R. 35713-14 (July 26, 1991)

[^6]: ^?^ When properly invoked, courts have the discretion to stay
    litigation while the administrative agency acts, and the court
    retains jurisdiction over the matter to resolve the litigation
    disputes at a later date. [Cal-Almond Inc. v. United States Dep't of
    Agriculture]{.underline}, 67 F.3d at 882.