**UNITED STATES DISTRICT COURT**

**FOR THE DISTRICT OF COLUMBIA**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**)**

**THE DISABILITY RIGHTS COUNCIL OF )**

**GREATER WASHINGTON, et al. )**

**)**

**Plaintiffs, )**

**)**

**v. ) CASE NO. 1:99CV0-2116**

**)**

**AMES DEPARTMENT STORES, INC., ) Judge Paul L. Friedman**

**)**

**Defendant. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
)**

**MEMORANDUM OF POINTS AND AUTHORITIES BY UNITED STATES**

**AS [AMICUS]{.underline} [CURIAE]{.underline}**

**IN OPPOSITION TO DEFENDANT AMES'**

**[MOTION TO DISMISS AND FOR SUMMARY JUDGMENT]{.underline}**

**INTRODUCTION**

The United States has moved separately for leave to address as
[amicus]{.underline} [curiae]{.underline} the proper construction of
title III of the Americans with Disabilities Act ("ADA") on the question
of exhaustion of administrative remedies. 42 U.S.C. §§ 12181-12189.
Plaintiffs allege discrimination in access to public accommodations in
violation of title III of the ADA, 42 U.S.C. § 12182, and several state
law causes of action. Plaintiffs allege that Defendant Ames has
discriminated against persons with disabilities by, among other things,
failing to remove architectural barriers from its businesses in
violation of title III, 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv).
Defendant Ames has moved to dismiss the ADA claim arguing incorrectly
that Plaintiffs failed to exhaust administrative remedies by notifying a
state agency before commencing this action.

**STATUTORY AND REGULATORY BACKGROUND**

Section 308(a)(1) of the ADA provides a private right of action for
persons who experience prohibited discrimination. That section reads in
pertinent part:

§ 12188. Enforcement

\(a\) In general

\(1\) Availability of remedies and procedures

> The remedies and procedures set forth in [section 2000a-3(a) of
> \[Title 42\]]{.underline} are the remedies and procedures this
> subchapter provides to any person who is being subjected to
> discrimination \[in violation of Title III\] \* \* \* Nothing in this
> section shall require a person with a disability to engage in a futile
> gesture if such person or organization covered by \[Title III\] does
> not intend to comply with its provisions.

42 U.S.C. § 12188(a)(1)(emphasis added). The highlighted reference to 42
U.S.C. § 2000a-3(a), above, refers to **Section 204(a)** of the Civil
Rights Act of 1964, that provides as follows:

> 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 \* \* \* 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

\* \* \* \*

At issue is **Section 204(c)** of the 1964 Act, 42 U.S.C. § 2000a-3(c),
that is not incorporated in the ADA. That section provides that, when a
state has a law prohibiting the same conduct as that prohibited by the
federal law, an aggrieved person must notify the state enforcement
authorities of the grievance and wait 30 days before filing suit in
federal court.

In its motion to dismiss, Defendant Ames argues that the ADA
incorporates the administrative notice requirements of § 2000a-3(c).
Def. Memo, pp. 12-14.[^1] Title III does not adopt the administrative
notice requirements of Section 2000a-3(c). By its express terms, the ADA
adopts only Section 2000a-3(a), which does not include a notice
requirement. Therefore, the plain language of the statute requires
rejection of Defendant's argument, and the motion to dismiss on those
grounds should be denied.

**ARGUMENT**

**AGGRIEVED PERSONS MAY SUE UNDER TITLE III OF THE ADA**

**WITHOUT PRIOR NOTICE TO STATE AGENCIES**

**A. The ADA Adopted Different Enforcement Mechanisms**

**In Each Of Its Titles Each Patterned After Different**

[**Titles Of The Civil Rights Act Of 1964**]{.underline}

The ADA is the newest major federal civil rights act. It is similar in
many respects to the Civil Rights Act of 1964. Title III of the ADA
addresses discrimination in public accommodations, as did Title II of
the Civil Rights Act, but with a number of differences. The public
accommodations provision of the Civil Rights Act of 1964 prohibits
discrimination on the basis of race, color, national origin, or
religion. Rather than simply amending Title II of the 1964 Act to add
disability as a prohibited basis for discrimination, Congress enacted a
new, 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\'s 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).

Congress enacted procedures for the enforcement of the different titles
of the ADA that are modeled, in varying degrees, on the enforcement
provisions in different titles of the 1964 Civil Rights Act. Thus, for
example, one part of the ADA that deals with employment takes its
enforcement scheme from Title VII of the Civil Rights Act of 1964. Title
VII prohibits discrimination on the basis of race, color, national
origin, religion, or sex in employment. See Title I of the ADA, Section
107, 42 U.S.C. § 12117(a) (incorporating Title VII remedies by
reference). Title VII of the 1964 Act clearly has administrative
prerequisites to suit in federal court.

Title II of the ADA, which prohibits discrimination in public services,
borrows its enforcement scheme from Title VI of the 1964 Civil Rights
Act, as those remedies were incorporated in Section 505 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794a(a)(2).
[See]{.underline} 42 U.S.C. § 12133.

Finally, title III of the ADA, governing discrimination against persons
with disabilities in the use of public accommodations and services
operated by private entities, contains a partial incorporation of the
remedies provided for in Title II of the Civil Rights Act of 1964.[^2]
Under 42 U.S.C. § 12188(a)(1), an aggrieved person may invoke the
procedures set forth in Section 204(a) of the 1964 Civil Rights Act.
Section 204(a) of the 1964 Act allows aggrieved persons to file suit to
enforce Title II. Its incorporation in title III of the ADA allows an
aggrieved person to bring a civil action to enforce title III. Just as
Section 204(a) does not require administrative notification, a person
filing suit to enforce title III is not required to notify any state
agency before filing this suit. Indeed, the enforcement provision goes
on to say that the person with the disability need not always wait until
the \"public accommodation\" actually engages in discrimination. It
provides that \"\[n\]othing 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 subchapter does not
intend to comply with its provisions.\" 42 U.S.C. § 12188(a)(1). Thus,
for example, a person using a wheelchair need not try to enter an
obviously inaccessible store before bringing suit.

By incorporating Section 204(a) of the Civil Rights Act of 1964, 42
U.S.C. § 2000a-3(a), Congress has authorized courts to grant plaintiffs
\"preventive relief\" (injunctive relief) under Section 308(a)(1) of the
ADA.[^3] In addition, Section 204(a) of the Civil Rights Act (as
incorporated) permits the Attorney General to intervene if she certifies
that the case is \"of general public importance.\" Finally, Section
204(a) (as incorporated) permits the district court, under certain
circumstances, to appoint an attorney for the plaintiff and \"authorize
the commencement of the civil action without the payment of fees, costs,
or security.\"

**B. The Plain Language Of Title III Is Unambiguous**

**In Its Authorization Of Suit Without Notice To**

[**State Agencies**]{.underline}

Settled canons of statutory interpretation tell us that the starting
point of any analysis must be the plain words of the statute.
[Staples]{.underline} v. [United States]{.underline}, 511 U.S. 600, 605
(1994). When the plain words are unambiguous, the inquiry is at an end;
there is no need to have recourse to the legislative history or other
collateral sources. Presumptively, \"the plain language of \[a\] statute
expresses congressional intent.\" [Ardestani]{.underline} v.
[INS]{.underline}, 502 U.S. 129, 135 (1991), quoted in [American Public
Power Association]{.underline} v. [NRC]{.underline}, 990 F.2d 1309, 1312
n.3 (D.C. Cir. 1993). Accordingly, "courts must presume that a
legislature says in a statute what it means and means \* \* \* what it
says there.\" [Connecticut Nat\'l Bank]{.underline} v.
[Germain]{.underline}, 503 U.S. 249, 253-254 (1992); [U.S.]{.underline}
v. [Bost]{.underline}, 87 F.3d 1333, 1335 (D.C. Cir. 1996). Thus, the
Court of Appeals for the District of Columbia assumes that \"the
ordinary meaning of \[the statutory\] language accurately expresses the
legislative purpose.\" [DAE Corp.]{.underline} v.
[Engeleiter]{.underline}, 958 F.2d 436, 439 (D.C. Cir. 1992)(citations
and internal quotation marks omitted).

Had Congress intended to engraft other parts of Section 204 to the ADA,
it knew how to do so. When a legislature adopts part but not all of
another statute, there is a presumption that the omission was
intentional. [See]{.underline}, [e.g.]{.underline},
[Kirchner]{.underline} v. [Chattanooga Choo Coo]{.underline}, 10 F.3d
737, 739 (10^th^ Cir. 1993); [Bank of America]{.underline} v.
[Webster]{.underline}, 439 F.2d 691, 692 (9th Cir. 1971);
[Guzman]{.underline} v. [Denny\'s, Inc]{.underline}., 40 F. Supp. 2d
930, 934 (S.D. Ohio 1999) (relying on the doctrine of \"expressio unius
est exclusio alterius\").

The language of Section 308(a)(1) of the ADA, 42 U.S.C.

§ 12188(a)(1), is clear and unambiguous. By incorporating Section
204(a), it clearly and unambiguously allows suit without any
administrative prerequisites.

Indeed, in construing the requirements of the enforcement provisions of
title III, several federal courts have held that plaintiffs are not
required to pursue state administrative remedies prior to filing an
action to enforce title III of the ADA. One of the most recent decisions
is [Wyatt]{.underline} v. [Liljenquist]{.underline}, 2000 WL 553656
(C.D. Cal. May 3, 2000). There, as here, the defendant contended that
the ADA requires exhaustion of administrative remedies and 30 day notice
before a plaintiff may file a civil suit. [Id.]{.underline} at \*2. As
the court noted, however,

> that the plain language of Section 12188(a)(1) is not ambiguous. The
> ADA does not purport to adopt Section 2000a-3(c). By its express
> terms, the ADA adopts only Section 2000a-3(a), which says nothing
> about notice or exhaustion of remedies. Furthermore, Section
> 2000a-3(a)
>
> makes no reference to subsection (c) and, under the doctrine of
> expressio unius est exclusio alterius, \"when a statute enumerates
> particular subjects \[subsection (a)\], the court should assume that
> all those not mentioned \[subsections (b) and (c) \] are excluded.\"
> \[(citation omitted).\] The unambiguous statutory language of Section
> 12188(a)(1) defeats Defendants\' argument.

[Id.]{.underline} Other courts have come to the same conclusion.
[See,]{.underline} [e.g.]{.underline}, [Parr]{.underline} v. [L & L
Drive-Inn Restaurant]{.underline}, 2000 WL 684800 \*10 (D. Hawai'i, May
16, 2000); [Guzman]{.underline} v. [Denny, Inc.]{.underline}, 40 F.
Supp. 2d 930, 934 (S.D. Ohio 1999); [Bercovith]{.underline} v. [Baldwin
School,]{.underline} 964 F. Supp. 597, 604 (D.P.R. 1997), rev' on other
grounds, 133 F.3d 141 (1st Cir. 1998) ("Given that Congress specifically
referred to § 2000a-3(a) when outlining the available remedies under
Title III, we believe that, had it wanted to make written notice to
state authorities a requirement under this title, it would have
explicitly done so"); [Mirando]{.underline} v. [Villa Roma Resorts,
Inc.]{.underline}, 1999 WL 1051118 (S.D.N.Y. Nov. 19, 1999);
[Shotz]{.underline} v. [Victorian Restaurant Corp.]{.underline}, 1999 WL
790689 (S.D. Fla. Feb. 5, 1999); [Moyer]{.underline} v. [Showboat Casino
Hotel, Atlantic City]{.underline}, 56 F. Supp. 2d 498, 501 (D.N.J.
1999); [Botosan]{.underline} v. [Fitzhugh,]{.underline} 13 F. Supp. 2d
1047, 1050 (S.D. Cal. 1998) ("By its clear, express terms, the ADA
adopts only § 2000a-3(a), which says nothing about exhausting
administrative remedies"); [Lewis]{.underline} v. [Aetna Life Insurance
Co.]{.underline}, 993 F. Supp. 382, 387 (E.D. Va. 1998) ("For claims
brought under ADA Title I, there is an administrative exhaustion
requirement which would toll the statute. However, for Title III claims,
there is no exhaustion requirement"); [Botosan]{.underline} v. [McNally
Realty, Inc.]{.underline}, Civil Action No. 98-CV-0367-J-AJB (S.D. Cal.
Nov. 24, 1998) (order holding that "the administrative exhaustion
requirements of subsection (c) are not incorporated into the ADA")
(Order Denying Defendants' Motion to Dismiss appended as Attachment 1),
[appeal docketed]{.underline}, No. 99-55580 (9^th^ Cir. 1999); Doukas v.
[Metropolitan Life Ins. Co.]{.underline}, No. CIV 4-478-S.D, 1997 WL
833134 (D. N.H. Oct. 21, 1997) ("the court assumes that Congress's
reference to paragraph (a) excludes paragraph (c)"); [Coalition of
Montanans Concerned with Disabilities, Inc.]{.underline}, v. [Gallatin
Airport Auth.]{.underline}, 957 F. Supp. 1166, 1169 (D. Mont. 1997) (in
case arising under title III, court noted that "plaintiffs need not
exhaust their administrative remedies" before bringing suit);
[Soignier]{.underline} v. [Anerican Bd. of Plastic Surgery]{.underline},
1996 WL 6553, \*1 (N.D. Ill. 1996) ("\[b\]y the express terms of \[42
U.S.C.\] § 12188, the only provision adopted for subchapter III of the
ADA is § 2000a-3(a)", aff\'d on other grounds, 92 F.3d 547 (7th
Cir.1996), [cert. denied]{.underline}, 519 U.S. 1093 (1997).[^4]

Defendant cites six cases as holding that Section 12188 purports to
adopt the administrative notice requirements of Section 2000a-3(c).
[See]{.underline} Def's Memo at p. 13. For the following reasons,
Defendant's argument lacks merit.

In three of these six cited cases, [Daigle]{.underline} v. [Friendly Ice
Cream Corp.]{.underline}, 957 F. Supp. 8 (D.N.H. 1997),
[Howard]{.underline} v [Cherry Hills Cutters, Inc.]{.underline}, 979 F.
Supp. 1307 (D. Colo. 1997), and [Howard]{.underline} v. [Cherry Hills
Cutters, Inc.,]{.underline} 935 F. Supp. 1148 (D. Colo. 1997), the
district court, without analysis, stated that the title III enforcement
provision is limited by the administrative requirements of Section
2000a-3(c). [Daigle]{.underline}, 957 F. Supp. at 9-10;
[Howard]{.underline}, 979 F. Supp. at 1150; [Howard]{.underline}, 935 F.
Supp. at 1149-50. In the absence of any explanation of how the courts
reached the conclusion that section 12188(a)(1) of the ADA incorporated
not just section 204(a), but also section 204(c), the opinions are
simply not persuasive.

The other three cited cases provided some analysis for the holding that
the ADA incorporated Section 2000a-3(c). The reasoning in these cases,
however, is fatally flawed. In [Mayes]{.underline} v.
[Allison]{.underline}, 983 F. Supp. 923 (D. Nev. 1997), the court found
the language of Section 308(a)(1) to be \"ambiguous.\" The court said
that because Section 36.501(a) of the Attorney General\'s regulation, 28
C.F.R. Pt. 36, incorporates by reference the attorneys\' fees provision
of 42 U.S.C.

§ 2000a-3(b), the Department of Justice must believe Congress intended
to incorporate more of Section 204 (of the 1964 Act) than 204(a), the
part explicitly referenced in the statute. 983 F. Supp. at 925.

But the regulation cited, 28 C.F.R. § 36.501(a), does not adopt or
restate the attorneys\' fees provision of Section 204(b) of the 1964
Act, 42 U.S.C. § 2000a-3(b). In fact, as we show, [infra]{.underline},
p. 13, the ADA has its own attorneys\' fees provision, 42 U.S.C. §
12205. The regulation actually restates the provision in 204(a) of the
1964 Act that:

> \[u\]pon 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.

See 28 C.F.R. 36.501(a). Therefore, the [Mayes]{.underline} reasoning is
based upon an incorrect reading of the law.

The fifth case cited by Defendant in support of its argument is
[Snyder]{.underline} v. [San Diego Flowers]{.underline}, 21 F. Supp. 2d
1207, 1210 (S.D. Cal. 1998). Like a number of other courts,
([see]{.underline} [supra]{.underline}, n.2), the district court in
[Snyder]{.underline} incorrectly believed that Title III of the ADA was
based on Title VII of the 1964 Civil Rights Act (\"Section 2000a-3(a) is
part of Title VII,\" 21 F. Supp. 2d at 1209). Understandably, the court
then wondered whether or not Congress intended the administrative
procedures of Title VII to be incorporated in the procedural section of
title III of the ADA. There is, however, no such ambiguity in the Act.
As indicated above, title III of the ADA is generally modeled on Title
II of the 1964 Act, not on Title VII.[^5]

The sixth case cited by Defendant in support of its argument that the
administrative notice requirement of Section 12188(c)(1) is applicable
to this suit is [Burkhart]{.underline} v. [Asean Shopping Ctr.,
Inc.]{.underline}, 55 F. Supp.2d 1013 (D. Ariz. 1999). In that case, the
district court assumed that Section 12188(a)(1) requires the aggrieved
party to notify the violator an opportunity to provide a response to the
complaint concerning its intent to comply. 55 F. Supp.2d at 1016-1018.
This assumption is incorrect. There is no statutory basis for assuming
that the \"futile gesture\" language refers to an administrative notice
requirement. Rather, that language codifies the \"futile gesture\"
language established in [International Bhd. of Teamsters]{.underline} v.
[United States]{.underline}, 431 U.S. 324 (1977), which in this context
would relieve a party of the need to try to enter an obviously
inaccessible store before suit or to seek the accommodations accorded by
title III where the party has notice that the entity does not intend to
comply with title III\'s provisions.

Two pieces of the ADA legislative history establish that Congress
intended the second sentence of Section 308(a)(1) to apply the Title VII
\"futile gesture\" doctrine to private actions under the ADA. First, the
House Report\'s discussion of Section 308(a)(1) states unequivocally:

> The Supreme Court has enumerated the \"futile gesture\" doctrine under
> title VII in [International Brotherhood of Teamsters]{.underline} v.
> [United States]{.underline}, 431 U.S. 324, 365-67 \[1977\] \... The
> Committee intends for this doctrine to apply to this title.

H.R. Rep. No. 101-485(ii), 101st Cong., 2d Sess. at 82-83 (1990); accord
S.Rep. No. 116, 101st Cong., 2d Sess. at 43 (1989). Second, in a speech
delivered on the House floor before passage of the ADA, Representative
Hoyer described the amendments which added the \"futile gesture\"
language to Section 308(a)(1) and provided an example of the doctrine\'s
application in the context of private actions under Title III:

> \[A\] person does not have to engage in a \"futile gesture\" if the
> person has notice that an entity covered under title III does not
> intend to comply with its provisions. For example, if a theatre has
> turned away six people with cerebral palsy and has indicated that it
> has a policy of turning away such individuals, a person with cerebral
> palsy can bring suit without first subjecting himself or herself to
> the humiliation of being turned away by the theatre.

136 Cong. Rec. E1913-01, E1920 (daily ed. May 22, 1990) (available on
WESTLAW 1990 WL 80290).

The legislative history of the ADA therefore establishes that the second
sentence to Section 308(a)(1) reflects Congress\' desire to apply the
\"futile gesture\" doctrine to private actions brought under Title III
of the ADA. By contrast, nothing in the statute or its legislative
history suggests that Congress intended Section 308(a)(1) to impose an
administrative notification requirement.

**C. Incorporating Other Parts Of Section 204 Of The**

**[Civil Rights Act Leads To Incongruous Results]{.underline}**

Section 204 of the Civil Rights Act of 1964 has four subsections. One of
them, Section 204(a), is expressly incorporated in Section 308(a)(1) of
the ADA. Defendant argues that Section 204(c) is also incorporated by
reference. Defendant does not, however, explain why a court should find
Section 204(c) of the 1964 Act incorporated in Section 308(a)(1) of the
ADA, but not Sections 204(b) and 204(d), 42 U.S.C. § 2000a-3(b) and 42
U.S.C. § 2000a-3(d). The only way that Defendant can argue for
incorporation of Section 204(c) is to claim that Congress intended to
incorporate all four subsections of Section 204 into the remedial
provision of Title III of the ADA.

If all four subsections were deemed incorporated, however, the result
would be duplication and incongruity. For example, Section 204(b) of the
Civil Rights Act, 42 U.S.C. 2000a-3(b), provides:

> In any action commenced pursuant to this subchapter, the court, in its
> discretion, may allow the prevailing party, other than the United
> States, a reasonable attorney\'s fee as part of the costs, and the
> United States shall be liable for costs the same as a private person.

Congress could not have intended this provision to be incorporated in
Section 308(a)(1) of the ADA. The ADA contains its own all-purpose
attorneys\' fees provision, 42 U.S.C. § 12205, applicable to all civil
actions and administrative proceedings brought pursuant to all titles of
the ADA.

Nor could Congress have intended to incorporate Section 204(d) of the
1964 Civil Rights Act into Section 308 of the ADA. That part of the 1964
Act permits federal courts, in states having no parallel state law
prohibiting public accommodations discrimination, to refer pending
public accommodation disputes to the Community Relations Service (CRS)
for a maximum of 120 days if there is a possibility that the defendant
will comply voluntarily with the Civil Rights Act. Congress never
expanded the jurisdiction of the CRS to allow it to mediate issues under
the ADA. Therefore, Congress could not have intended Section 308 of the
ADA to incorporate Section 204(d) of the 1964 Act. Accordingly, there is
no basis for an argument that Congress incorporated in Section 308(a)(1)
of the ADA one subsection of Section 204 of the 1964 Civil Rights Act
without expressly mentioning it, but failed to incorporate two other
provisions that are also not mentioned. The rational answer is that
Congress incorporated only that section it alluded to
[explicitly]{.underline}: Section 204(a).

D. **The Legislative History Is Consistent With The**

> **[\"Plain Language\" Of Title III\'s Enforcement
> Provision]{.underline}**

Defendant does not argue that the statute on its face is ambiguous;
thus, there is no reason to examine the legislative history. If
relevant, however, the legislative history is entirely consistent with
reading the statute to incorporate only Section 204(a) of the 1964 Civil
Rights Act.

The district court in [Mayes]{.underline} cited a fragment of
legislative history consisting of one sentence from the Conference
Report saying that the House amendment, ultimately adopted by Congress,
\"\'specifies that the remedies and procedures of Title II of the 1964
Civil Rights Act\' shall be the remedies and procedures for enforcement
of 42 U.S.C. §12182.\" 983 F. Supp. at 925. The court in
[Mayes]{.underline} concluded from this sentence that Congress intended
all of the procedures of Title II to be incorporated, not just Section
204(a). This is entirely incorrect. Apart from the fact that
incorporation of \"all the procedures of Title II\" would have an
irrational result, as we demonstrated above, the [Mayes]{.underline}
court missed the point being made in the Conference Report.

Both the House and the Senate passed versions of Title III that
expressly incorporated only the procedures set forth in 42 U.S.C.
2000a-3(a) of the 1964 Civil Rights Act. [See]{.underline} Section
308(a)(1) of the Senate Bill, S. 933, as passed September 18, 1989
(appearing also at 135 Cong. Rec. S10707 (daily ed. Sept. 7, 1989)); 136
Cong. Rec. H2460 (daily ed. May 19, 1990) (House-passed version). The
two bills differed, however, as to who could invoke the remedies offered
by Title III. The Senate version provided:

> The remedies and procedures set forth in section 204 of the Civil
> Rights Act of 1964 (42 U.S.C. 2000a-3(a)) shall be available to any
> individual who is being [or is about to be subjected to]{.underline}
> discrimination on the basis of disability in violation of this title.

(Emphasis added.) The House bill, however, provided that the:

> remedies and procedures of title II of the 1964 Civil Rights Act shall
> be the powers, remedies and procedures title III provides to any
> person who is being subject to discrimination \* \* \* [or \* \* \*
> has \'reasonable grounds\' for believing that he or she is about to be
> subjected to discrimination with respect to the construction of new or
> the alteration of existing facilities in an inaccessible
> manner.]{.underline}

H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 80 (1990) (emphasis
added).

The Conference Report explained, briefly, that the Senate receded and
the House version prevailed. In so doing, it shortened its description
of the two provisions, referring to the \"remedies and procedures of the
1964 Civil Rights Act\" and \"the remedies and procedures of title II of
the 1964 Civil Rights Act\" instead of specifying what subsection was
actually in each version of the bill. See H.R. Conf. Rep. No. 596, 101st
Cong., 2d Sess. 80 (1990). Clearly, by using these shorthand
descriptions, the conferees did not purport to change the words of the
bill that the House passed, especially considering that the purpose of
the Report was to announce that the committee was adopting the House
version.

The only other legislative history we have found relevant to this point
consists of a colloquy between two sponsors of the Senate bill, ending
with a definitive statement that no administrative procedures attach to
title III of the ADA.[^6] There is not a scintilla of evidence in the
legislative history that Congress intended anything but 42 U.S.C. §
2000a-3(a) to be incorporated in the enforcement section of title III of
the ADA.

**CONCLUSION**

For the foregoing reasons, the United States, as [amicus]{.underline}
[curiae]{.underline}, urges this court to deny Defendant's motion to
dismiss the case and to find that Plaintiffs did not have to notify any
state agency before commencing this action under title III.

> Respectfully submitted,
>
> BILL LANN LEE
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> JOHN L. WODATCH, Chief
>
> PHILIP BREEN, Special Legal Counsel
>
> D.C. Bar No. 412735
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> ROBERT J. MATHER, Trial Attorney
>
> D.C. Bar No. 344523
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-2236 (O)
>
> \(202\) 305-9775 (F)

Dated this 5^th^ day of June, 2000.

Attachment

[^1]: ^?^ In this brief, we will not address other arguments raised by
    Defendant in its Memorandum of Points and Authorities in Support of
    Defendant Ames' Motion To Dismiss and For Summary Judgment.

[^2]: ^?^ It should be emphasized that the enforcement provision in
    title III of the ADA is adopted from Title II, not Title VII, of the
    1964 Act. Several courts, however, have erroneously stated that the
    remedies available to an aggrieved person under the ADA are similar
    to those provided in Title VII of the 1964 Act. [See,
    e.g.]{.underline}, [Guzman]{.underline} v. [Denny's,
    Inc.]{.underline}, 40 F. Supp. 2d 930, 934 (S.D. Ohio 1999) (the ADA
    explicitly adopts the enforcement provisions of Title VII);
    [Botosan]{.underline} v. [Fitzhugh]{.underline}, 13 F. Supp. 2d
    1047, 1049 (S.D. Cal. 1998) (Section 2000a-3(a) comes from Title
    VII); [Daigle]{.underline} v. [Friendly Ice Cream
    Corp.]{.underline}, 957 F. Supp. 8 (D.N.H. 1997);
    [Sharp]{.underline} v. [Waterfront Resturants]{.underline}, 1999 WL
    1095486, \*2 (C.D. Cal. Aug. 2, 1999) (Section 2000a-3(a) is part of
    Title VII); [Synder]{.underline} v. [San Diego Flowers]{.underline},
    21 F. Supp. 2d 1207, 1209 (S.D. Cal. 1998) (the same).

[^3]: ^?^ Section 308(a)(2) of the ADA, 42 U.S.C. § 12188(a)(2), expands
    the injunctive relief available to include orders requiring the
    alteration of facilities or the provision of auxiliary services,
    measures that would not be necessary when discrimination is on the
    basis of race.

[^4]: ^?^ In [Soignier]{.underline}, 92 F.3d 547, the Seventh Circuit
    made clear that there are no prerequisites to filing suit under
    title III. In that case, a physician sought certain accommodations
    in taking the oral portion of the exam for board certification in
    plastic surgery; when he did not receive the accommodations he
    sought, he first appealed to the Board of Plastic Surgery, and after
    the appeal, failed, filed in federal court. [Id]{.underline}. at
    549. His action was dismissed on grounds that it was time-barred.
    [Id]{.underline}. In upholding that decision, the Seventh Circuit
    observed that

    > \[u\]nlike an EEOC investigation . . ., internal appeals are not
    > part of the ADA statutory procedure and do not toll the time for
    > filing suit. Because [there is no first obligation to pursue
    > administrative remedies]{.underline}, Soignier had to file within
    > two years of the accrual date . . . .

    [Id]{.underline}. at 553 (citation omitted, emphasis added).

[^5]: ^?^ The administrative procedures required by Section 204(c) of
    the 1964 Act are, in all events, totally different than those
    required by Title VII of the 1964 Act. There is no logic to the
    [Snyder]{.underline} court's reasoning that Congress intended to
    incorporate Section 204(c) of the 1964 Act into Section 308 of the
    ADA in order to make the latter provision similar to Title VII of
    the 1964 Act.

[^6]: ^?^ 135 Cong. Rec. S10759-S170760 (daily ed. Sept. 7, 1989):

    MR. BUMPERS. Mr. President, to continue the colloguy before we were
    interrupted by the vote, let me ask and clarify something before we
    go on. Is it correct with this act must exhaust, as we lawyers say,
    his or her administrative remedies before they proceed to file suit.

    MR. HARKIN. That is affirmative.

    MR. BUMPERS. In that connection, Senator, 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 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.