Number range CHAPTER**UNITED STATES DISTRICT COURT**

**EASTERN DISTRICT OF LOUISIANA**

**)**

**THE UNITED STATES OF AMERICA, )**

**)**

**Plaintiff, )**

**)**

**v. ) CIVIL ACTION**

**)**

**)**

**DREW B. MORVANT, D.D.S., ) No. 93-3251**

**) Section J (1)**

**and )**

**)**

**DREW B. MORVANT, D.D.S., )**

**A PROFESSIONAL DENTAL CORPORATION )**

**)**

**Defendants )**

**)**

**)**

PLAINTIFF\'S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO\
DEFENDANT\'S MOTION TO DISMISS/MOTION TO STRIKE

# I. INTRODUCTION

This memorandum is submitted in response to Defendant\'s supplemental
memoranda, filed on December 28, 1993 and January 11, 1994, in support
of his motion to strike the government\'s request for damages for Ismael
Pena. The United States maintains that pursuant to the statutory
authority conferred upon the Attorney General, the government may seek
such damages in the instant case. Under either 42 U.S.C. § 1988 or the
federal common law, the request for damages to compensate Pena survives.

# II. ARGUMENT

**A. PURSUANT TO 42 U.S.C. § 1988 AND LSA-C.C. ART. 2315.1, THE
GOVERNMENT\'S REQUEST FOR DAMAGES FOR PENA SURVIVES**

**1. The Rule in 42 U.S.C. § 1988 Governs the Survival of Claims Brought
Pursuant to the Americans with [Disabilities Act ]{.underline}**

42 U.S.C. § 1988 is a far-reaching statute, designed to remedy the
deficiencies of federal civil rights statutes and to effectuate the
underlying purposes thereof.[^1] When enacted, section 1988 governed
those actions brought pursuant to the Reconstruction Civil Rights Acts.
Since that time, courts have applied section 1988 in a variety of civil
rights actions, either explicitly or by adopting the statutory rule
that, in the absence of federal directive, courts should look to the
appropriate state law. [See]{.underline}, [e.g.]{.underline}, [Slade v.
U.S. Postal Service]{.underline}, 952 F.2d 357, 360 (10th Cir. 1991)
(Title VII of the Civil Rights Act of 1964 (\"Title VII\")) (\"\'\[I\]f
federal law does not provide a rule of decision in a civil rights case,
federal law will incorporate the appropriate state law, unless that law
is \'inconsistent with the Constitution and laws of the United
States.\'\'\")(citing [Bennett v. Tucker]{.underline}, 827 F.2d 63, 67
(7th Cir. 1987)(quoting § 1988)); [Grandbouche v. Clancy]{.underline},
825 F.2d 1463, 1465 (10th Cir. 1987) ([Bivens]{.underline} action);
[Kilgo v. Bowman]{.underline}, 789 F.2d 859, 876 (11th Cir. 1986) (Title
VII) ([citing]{.underline} [Brazier]{.underline}, 293 F.2d 401); [Scott
v. University of Delaware]{.underline}, 601 F.2d 76, 81-82 n.8 (3rd
Cir.) (same), [cert. denied]{.underline}, 444 U.S. 931 (1979); [Beard v.
Robinson]{.underline}, 563 F.2d 331, 333 (7th Cir. 1977)
([Bivens]{.underline} action) (\"Faced with the absence of a governing
federal rule of decision, most courts that have considered the question
of the survival of federal civil rights claims have looked to state law,
either on the authority of 42 U.S.C. § 1988 or simply because reference
to state law obviated the need to fashion an independent federal common
law rule.\"), [cert. denied]{.underline}, 438 U.S. 907 (1978).[^2]
Accordingly, substantial authority belies Defendant\'s narrow and
restrictive reading of the statute. [See]{.underline} Defendant\'s
Memorandum at 1-3. The issue of survival of a civil rights action is
governed by the section 1988 rule.

Consistent with the federal courts\' application of the section 1988
rule, the government maintains that this statutory directive governs the
survival of actions brought pursuant to the Americans with Disabilities
Act (\"ADA\"), 42 U.S.C. § 12101 [et]{.underline}. [seq]{.underline}.
The ADA is a civil rights statute, designed to protect the rights of and
prohibit discrimination against individuals with disabilities. Nothing
in the statute indicates that the Act should not be enforced under a
civil rights regime; rather, the legislative history indicates that the
statute was enacted so as to extend to persons with disabilities \"the
same civil rights protections provided to women and minorities . .
.\"[^3] The narrow interpretation of section 1988 urged by Defendant
would contravene the purpose of that statute and limit the very
protections the ADA was designed to expand.

Accordingly, pursuant to the section 1988 rule that, in the absence of
federal directive, courts should look to state law, the Louisiana
survivorship statute, Article 2315.1, controls.

**2. Article 2315.1 Dictates that a Claim for Damages [Survives an
Injured Person\'s Death ]{.underline}**

Since Article 2315.1 provides that a right of action for damages for
injury to a person survives that person\'s death, the government\'s
claim in the instant case survives. Defendant\'s argument that the
Louisiana survivorship statute is inapplicable, merely because the
United States, rather than the aggrieved individual, possessed the
original right of action, has no merit. [See]{.underline} Defendant\'s
Supplemental Memorandum at 3-5.

The underlying purpose of the Louisiana survivorship statute is to
ensure that the decedent\'s heirs recover those damages to which the
decedent would have been entitled were he still alive. [See]{.underline}
LSA-C.C. art. 2315.1(a) (\"\[i\]f a person who has been injured by an
offense or quasi-offense dies, the [right to recover all
damages]{.underline} for injury to that person, his property or
otherwise, caused by the offense or quasi-offense shall survive . . .\")
(emphasis added).[^4] By providing a survival action, the Louisiana
legislature has statutorily created the means by which that purpose is
effected. [See]{.underline} [Robertson v. Wegmann]{.underline}, 436 U.S.
584, 589 (1978)(noting that state survivorship statutes were intended to
modify the 19th century common-law rule that an injured party\'s claim
for damages was extinguished upon his death).

The fact that in the instant case the United States, rather than Pena,
possessed the original right of action is immaterial to the issue of
survival of \"the right to recover all damages.\"[^5]

Were he still alive, whatever monetary damages the court might award in
the government\'s action would go to Pena. Consistent with the
underlying purpose of the survivorship statute, the claim for damages,
therefore, survives.[^6]

**3. Defendant\'s Actions Constitute an \"Offense or Quasi-[Offense\"
Within the Meaning of Article 2315.1]{.underline}**

Finally, Defendant\'s discriminatory actions clearly constitute an
\"offense or quasi-offense\" within the meaning of the Louisiana
survivorship statute. See Defendant\'s Supplemental Memorandum at 5-7.
The Fifth Circuit explicitly has stated that since a federal civil
rights action arises from the defendant\'s violation of a duty imposed
by federal law, such action should be \"characterize\[d\] . . . as one
sounding in\
tort \-- i.e., an \'offense or quasi-offense.\'\" [Page v. U.S.
Industries, Inc.]{.underline}, 556 F.2d 346, 352 (5th Cir. 1977) (citing
[Sims v. New Orleans Railway & Light Co.]{.underline}, 64 So. 823 (La.
1914) (offenses and quasi-offenses are \"infringements of some right

personal to the individual or the violation of some duty imposed by
law.\")), [cert. denied]{.underline}, 434 U.S. 1045 (1978).[^7]

Title III of the ADA prohibits discrimination on the basis of disability
in places of public accommodation, including dental offices. 42 U.S.C.
§§ 12181(7)(F), 12182(a). This action alleges that Defendant refused to
treat Pena solely on the basis of his HIV-positive status, a violation
of a \"duty imposed by law.\" [Page]{.underline}, 556 F.2d at 352.
Moreover, the nature of the alleged harm suffered by Pena is most
analogous to the injuries compensated in tort actions, namely,
humiliation, emotional distress, frustration, and anxiety. Accordingly,
the alleged actions of the Defendant constitute an \"offense or
quasi-offense\" within the meaning of the Louisiana survivorship
statute. Article 2315.1, therefore, provides the basis for recovery.

Thus, in light of the fact that: (a) 42 U.S.C. § 1988 is applicable; (b)
LSA-C.C. art. 2315.1 dictates that a claim for damages survives; and (c)
violations of the ADA constitute \"offenses or quasi-offenses\" within
the meaning of article 2315.1, the government\'s request for damages for
Pena survives.

**B. PURSUANT TO FEDERAL COMMON LAW, THE GOVERNMENT\'S REQUEST FOR
DAMAGES FOR PENA SURVIVES**

**1. A Federal Cause of Action that is Remedial in Nature [Survives the
Death of the Aggrieved Individual ]{.underline}**

Even assuming, arguendo, that Defendant\'s arguments with respect to
section 1988 and article 2315.1 were correct, it is settled law that the
survival of a federal cause of action is, in the absence of an
expression of contrary intent, a matter of federal common law. [James v.
Home Constr. Co. of Mobile, Inc.]{.underline}, 621 F.2d 727, 729 (5th
Cir. 1980). [See]{.underline} [also]{.underline} [Smith v. Dept. of
Human Serv.\[s\], State of Okla.]{.underline}, 876 F.2d 832, 834 (10th
Cir. 1989); 7C Charles A. Wright et. al., Federal Practice and
Procedure: Civil § 1952 at 526 (2d ed.). In this circuit, the federal
common law rule is that a federal cause of action survives in favor of
the plaintiff\'s estate unless it is an action for penalties.
[James]{.underline}, 621 F.2d at 730 (citing [Schreiber v.
Sharpless]{.underline}, 110 U.S. 76 (1884) and [Murphy v. Household
Finance Corp.]{.underline}, 560 F.2d 206 (6th Cir. 1977)).

In [James]{.underline}, the court applied an analysis first articulated
in [Murphy]{.underline}. It considered three factors to determine
whether an action, brought pursuant to the Truth-in-Lending Act
(\"TILA\"),

42 U.S.C. § 1635, was remedial and whether, therefore, it survived the
plaintiff\'s death. The court considered:

> \(1\) whether the purpose of the action was to redress individual
> wrongs or wrongs to the public;
>
> \(2\) whether the recovery ran to the individual or to the public; and
>
> \(3\) whether the recovery was disproportionate to the harm suffered.

[James]{.underline}, 621 F.2d at 730 (citing [Murphy]{.underline}, 560
F.2d at 209.) In light of its analysis of these three factors, the court
concluded that the TILA action was primarily remedial in nature. Thus,
the court held that the action survived in favor of the administrator of
the deceased plaintiff\'s estate.

Numerous courts have applied the [James/Murphy]{.underline} analysis and
have held that, as a matter of federal common law, a cause of action for
monetary damages under a federal civil rights statute survives in favor
of the aggrieved individual\'s estate. [See]{.underline},
[e.g.]{.underline}, [Cook v. Hairston]{.underline}, 948 F.2d 1288, 1991
WL 253302 (6th Cir. 1991)(section 504 of the 1973 Rehabilitation
Act)[^8]; [Kilgo v. Bowman Transp. Inc.]{.underline}, 789 F.2d 859, 876
(11th Cir. 1986) (Title VII); [Fariss v. Lynchburg Foundry]{.underline},
769 F.2d 958, 962 n.3

(4th Cir. 1985)(Age Discrimination in Employment Act (\"ADEA\")); [Khan
v. Grotnes Metalforming Systems, Inc.]{.underline}, 679 F. Supp. 751,

756 (N.D. Ill. 1988) (ADEA and Title VII); [Worsowicz v. Nashua
Corp.]{.underline}, 612 F. Supp. 310, 312-13 (D. N.H. 1985) (ADEA);
[Asklar v.]{.underline}

[Honeywell, Inc.]{.underline}, 95 F.R.D. 419, 423 (D. Conn. 1982)
(ADEA); [Ricca v. United Press Int\'l]{.underline}, 28 Fair Empl. Prac.
Cas. (BNA) 1816,\
1817 (S.D.N.Y. 1982) (ADEA).[^9] [But see]{.underline}
[Smith]{.underline}, 876 F.2d at 835 (ADEA action seeking
[only]{.underline} liquidated damages is penal in nature and does not
survive plaintiff\'s death).

**2. Federal Common Law Requires the Survival of the [Government\'s
Claim for Damages Under the ADA]{.underline}**

When the [James/Murphy]{.underline} analysis is applied to the instant
case, it is clear that this action, with respect to Pena, is remedial in
nature.

The first prong of the analysis is satisfied by considering the purposes
of the ADA, as set forth in the statute:

\[a\] to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities;

> \[b\] to provide clear, strong, consistent, enforceable standards
> addressing discrimination against individuals with disabilities;
> \[and\]
>
> \[c\] 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). Indeed, with respect to Pena, the sole purpose of
this action is to redress the individual wrong of being denied dental
care on the basis of disability.

Second, pursuant to 42 U.S.C. § 12188(b)(2)(B), claims for monetary
damages run to the aggrieved individual, rather than the public. In this
action, the government specifically requested that monetary damages be
awarded directly \"to Pena and/or his heirs or successors.\" First
Amended Complaint at 5.

Third, pursuant to 42 U.S.C. § 12188(b)(2)(B), claims for monetary
damages may not be in excess of the harm suffered. In fact, Congress
expressly provided that monetary damages do not include the authority to
seek punitive damages. 42 U.S.C.

§ 12188(b)(4).[^10] With respect to Pena, this action seeks only those
damages that will compensate him for the injuries occasioned by the
alleged discriminatory conduct, and nothing more.[^11]

With respect to Ismael Pena, therefore, this action is remedial in
nature. As noted in the previous section, the fact that the United
States, and not Pena, has instituted this suit is of no consequence for
purposes of determining whether the claim at issue survives Pena\'s
death. If the government was entitled to seek damages when Pena was
alive, it is entitled to do so now.[^12] Pursuant to federal common law,
the government\'s request for damages should survive his death.

In the end, the government urges the court to recognize the survival of
its claim for damages with respect to Pena by applying either the rule
articulated in 42 U.S.C. § 1988 or, in the alternative, the federal
common law. In an action to enforce title III of the ADA, whether the
outcome of the court\'s ruling effectively favors Pena\'s statutory
beneficiaries (pursuant to 42 U.S.C. § 1988 and LSA-C.C. art. 2315.1) or
his estate (pursuant to federal common law) is not material to the
government\'s interest, so long as the claim for damages survives. The
government notes, however, that survivorship statutes vary from state to
state. A ruling that looks to the federal common law in determining the
survival of a claim for damages will likely foster a more uniform
application of the statute, avoid differing results occasioned by the
vagaries of state law, and thereby serve as a more effective deterrent
to discriminatory conduct.

**C. PENA\'S HEIRS AND/OR SUCCESSORS NEED NOT BE NAMED IN THE
COMPLAINT**

Finally, there is no basis for Defendant\'s allegation that the
Complaint in this action is deficient because it fails to explicitly
identify Pena\'s heirs and/or successors. Defendant\'s Supplemental
Memorandum at 8.

Rule 8 of the Federal Rules of Civil Procedure simply requires that the
Complaint state:

> \... (2) a short and plain statement of the claim showing that the
> pleader is entitled to relief, and
>
> \(3\) a demand for judgment for the relief the pleader seeks.

Fed. Rule Civ. Proc. 8.[^13] The government has fully satisfied the
requirements of this Rule. The Complaint contains a short and plain
statement of the government\'s claim \-- namely, that Defendant has
violated title III of the Americans with Disabilities Act \-- and a
demand for specific injunctive and monetary relief. The identity of
Pena\'s heirs and/or successors can easily be obtained through the
discovery process; there is no requirement, under either Rule 8 or Rule
11, that they be specifically identified in the Complaint.

# III. CONCLUSION

For the foregoing reasons, the government respectfully requests that
Defendant\'s Motion to Strike the government\'s request for damages for
Pena be denied. Additionally, for the reasons set forth in Plaintiff\'s
Memorandum in Opposition to Defendant\'s Motion to Dismiss/Motion to
Strike, the government respectfully requests that Defendant\'s Motion to
Dismiss/Motion to Strike be denied in full.

> Respectfully submitted,

ROBERT J. BOITMANN JAMES P. TURNER

United States Attorney Acting Assistant Attorney General

Eastern District of Civil Rights Division

Louisiana

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

GLENN K. SCHREIBER SHEILA K. DELANEY

Assistant U.S. Attorney SHARON N. PERLEY, TA

Eastern District of Public Access Section

Louisiana Civil Rights Division

501 Magazine St. U.S. Department of Justice

New Orleans, LA 70130 P.O. Box 66738

\(504\) 589-3598 Washington, D.C. 20035-6738

\(202\) 514-6016

**[CERTIFICATE OF SERVICE]{.underline}**

I, the undersigned attorney for the United States of America, do hereby
certify that I have this date served upon the counsel of record listed
below, by telefacsimile and by first-class mail, a true and correct copy
of the foregoing Plaintiff\'s Supplemental Memorandum In Opposition to
Defendant\'s Motion to Dismiss/Motion to Strike.

Mr. Stephen M. Pizzo

Blue Williams, L.L.P.

Ninth Floor

3421 North Causeway Blvd.

Metarie, LA 70002-3760

(Counsel for the Defendants)

SO CERTIFIED this [15th]{.underline} day of January, 1994.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> SHARON N. PERLEY
>
> Attorney
>
> Public Access Section
>
> Civil Rights Division
>
> United States Department ofJustice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-6016

**[CERTIFICATE OF SERVICE]{.underline}**

I, the undersigned attorney for the United States of America, do hereby
certify that I have this date served upon the counsel of record listed
below, by telefacsimile and by first-class mail, a true and correct copy
of the foregoing Plaintiff\'s Supplemental Memorandum In Opposition to
Defendant\'s Motion to Dismiss/Motion to Strike.

Mr. Stephen M. Pizzo

Blue Williams, L.L.P.

Ninth Floor

3421 North Causeway Blvd.

Metarie, LA 70002-3760

(Counsel for the Defendants)

SO CERTIFIED this [18th]{.underline} day of January, 1994.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> SHARON N. PERLEY
>
> Attorney
>
> Public Access Section
>
> Civil Rights Division
>
> United States Department ofJustice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-6016

[^1]: ^?^ [See]{.underline} [Brazier v. Cherry]{.underline}, 293 F.2d
    401, 408 (5th Cir.), [cert. denied]{.underline}, 368 U.S. 921
    (1961):

    > \[1988\] reflects a purpose on the part of Congress that the
    > redress available will effectuate the broad policies of the civil
    > rights statutes. . . . \[Section 1988\] comprehends those
    > facilities available in local state law but unavailable in federal
    > legislation, which will permit the full effectual enforcement of
    > the policy sought to be achieved by the statutes.

    [See]{.underline} [also]{.underline} [Sherrod v. Pink Hat
    Cafe]{.underline}, 250 F. Supp. 516, 519 (N.D. Miss. 1965):

    > \[Section 1988\] is a broad congressional direction to the federal
    > court system to draw on state law when to do so will carry out and
    > fulfill the purposes of other congressional enactments designed to
    > protect persons in their civil rights.

[^2]: ^?^ [See]{.underline} [also]{.underline} [Anspach v. Tomkins
    Industries, Inc.]{.underline}, 817 F. Supp. 1499, 1510 (D. Kan.
    1993) (Title VII); [Glanz v. Vernick]{.underline}, 750 F. Supp. 39,
    42-43 (D. Mass. 1990) (damages claim for individual discriminated
    against on the basis of HIV survives because the rights and remedies
    of the 1973 Rehabilitation Act are derived from Title VI of the 1964
    Civil Rights Act, which \"like all other federal civil rights
    statutes, is governed by\
    42 U.S.C. § 1988\"); [Hamilton v. Rogers]{.underline}, 573 F. Supp.
    452, 453-54 (S.D. Tx. 1983) (Title VII); [Sherrod v. Pink Hat
    Cafe]{.underline}, 250 F. Supp. 516, 519 (N.D. Miss. 1965) (Title II
    of the 1964 Civil Rights Act).

[^3]: ^?^ H.R. Rep. No. 101-485, 101st Cong., 2d. Sess., Pt. 3, at 25
    (1990).

[^4]: ^?^ The statute also ensures that the wrongdoer is not permitted
    to avoid the consequence of violating the law merely because of the
    death of the injured party.

[^5]: ^?^ Indeed, the government\'s claims for damages for individuals
    deprived of their civil rights have been found to survive.
    [See]{.underline}, [e.g.]{.underline}, [United States v. City of
    Chicago]{.underline}, Civ. Act. No. 73-C-2080, 1989 WL 65009, at \*
    5 (N.D. Ill. June 8, 1989) (damages awarded to surviving spouse
    and/or estate of victims of discrimination in consent decree after
    liability under Title VII had been found by the court); [EEOC v.
    Greyhound Lines, Inc.]{.underline}, 411 F. Supp. 97, 102 (W.D. Pa.
    1976) (death of party who originally filed complaint with EEOC did
    not moot Commission\'s Title VII action for monetary damages for
    decedent); [EEOC v. Local 2P, Lithographers & Photoengravers Int\'l
    Union]{.underline}, 412 F. Supp. 530, 541 (D. Md. 1975) (back pay
    awarded to the EEOC on behalf of the estate of aggrieved individual
    in Title VII action).

[^6]: ^?^ Indeed, this action was initiated by Pena\'s filing of a
    complaint with the Department of Justice. Survival of the
    government\'s claim furthers his own desires that appropriate
    redress be obtained. ([Cf]{.underline}. [Nathan v. Touro
    Infirmary]{.underline}, 512 So.2d 352, 355 (La. 1987) (filing of
    complaint with medical review panel prior to death was the
    equivalent of asserting right of action).

[^7]: ^?^ [See]{.underline} [also]{.underline} [Pegues v. Morehouse
    Parish Sch. Bd.]{.underline}, 632 F.2d 1279, 1281 (5th Cir. 1980)
    (affirming application in employment discrimination action of
    Louisiana statute of limitations for actions resulting from
    \"offenses or quasi-offenses\") (citing [Page]{.underline}, 556 F.2d
    at 352), [cert. denied]{.underline}, 451 U.S. 987 (1981); [Heyn v.
    Board of Supervisors of La. State Univ.]{.underline}, 417 F. Supp.
    603, 605 (E.D. La. 1976) (civil rights action brought pursuant to

    42 U.S.C. § 1983 sounds in tort); [Whitsell v.
    Rodrigues]{.underline}, 351 F. Supp. 1042, 1044 (E.D. La. 1972)
    (federal civil rights action governed by Louisiana statute of
    limitations for offenses and quasi-offenses).

    The Supreme Court has applied a similar analysis and has held that
    federal civil rights actions are most analogous to those arising in
    tort. [See]{.underline}, [e.g.]{.underline}, [Wilson v.
    Garcia]{.underline}, 471 U.S. 261, 266-68 (1985) (state statute of
    limitations for personal injury claims is most appropriate to and
    must be applied in actions brought pursuant to 42 U.S.C. § 1983);
    [Curtis v. Loether]{.underline}, 415 U.S. 189, 195 (1974)(actions
    under the Fair Housing Act,\
    42 U.S.C. § 812, sound in tort).

[^8]: ^?^ This decision is unpublished. However, as explained in note
    11, [infra]{.underline}, the government finds the court\'s analysis
    persuasive.

[^9]: ^?^ Courts also have applied the analysis in non-civil rights

    cases brought pursuant to federal statutes that are silent as to the
    issue of survivability. [See]{.underline}, [e.g.]{.underline},
    [United States v. NEC Corp.]{.underline}, 1993 WL 522133, at 7 (11th
    Cir. 1993) (False Claims Act); [Matter of Wood]{.underline}, 643
    F.2d 188, 190-91 (5th Cir. 1980) (TILA); [Smith v. No.2 Galesburg
    Crown Fin. Corp.]{.underline}, 615 F.2d 407, 414 (7th Cir. 1980)
    (TILA), [overruled on other grounds]{.underline}, [Pridegon v. Gates
    Credit Union]{.underline}, 683 F.2d 182, 194 (7th Cir. 1982).

[^10]: ^?^ While the United States also may seek civil penalties as a
    means of vindicating the public interest, the exercise of that
    authority will always be ancillary to the requests for equitable and
    compensatory relief, which are designed to vindicate individual
    wrongs. Cf. [Asklar v. Honeywell, Inc.]{.underline}, 95 F.R.D. 419,
    423 (D. Conn. 1982)(primary purpose of ADEA is remedial,
    notwithstanding the statutory authorization to seek liquidated
    damages). [See]{.underline} [also]{.underline} [Khan v. Grotnes
    Metalforming Systems, Inc.]{.underline}, 679 F. Supp. 751, 756 (N.D.
    Ill. 1988) (same).

[^11]: ^?^ [Cf]{.underline}. [Cook]{.underline}, 948 F.2d 1288, 1991 WL
    253302, in which the Sixth Circuit applied a similar analysis in an
    action brought pursuant to Section 504 of the 1973 Rehabilitation
    Act, a federal statute that prohibits discrimination on the basis of
    disability by federal agencies and recipients of federal funding. In
    [Cook]{.underline}, the court found that (1) \"§ 504 is directed
    more to improving the lot of certain handicapped individuals who may
    suffer discrimination, rather than to redressing wrongs suffered by
    the general public\"; (2) \"\[r\]ecovery under § 504 runs to the
    individual\"; and (3) \"the Act does not authorize any damages in
    excess of the harm suffered.\" 948 F.2d at 1288, \*2, 1991 WL at
    253302, \*\*6. The court, therefore, concluded that § 504 is
    remedial in nature, and that any claim for damages under § 504
    survives the aggrieved individual\'s death. [Id]{.underline}.
    [See]{.underline} [also Consolidated Rail Corp. v.
    Darrone]{.underline}, 465 U.S. 624 (1984), where the Supreme Court
    acknowledged that monetary damages may be awarded to plaintiffs\'
    estates in actions brought pursuant to section 504.
    [Id]{.underline}. at 630.

[^12]: ^?^ Similarly, Defendants\' argument that the government does not
    have standing to request damages for Pena is without merit.
    Defendant\'s Supplemental Memorandum at 10-14. The government does
    not, and has not, \"sue\[d\] on behalf of heirs of alleged
    victims.\" [See]{.underline} [id]{.underline}. at 11. This action is
    brought on behalf of the United States. The Attorney General is
    authorized to file a civil action when (a) there is a pattern or
    practice of discrimination, or (b) any persons or group of persons
    has been discriminated against under title III of the ADA and the
    discrimination raises an issue of public importance, 42 U.S.C.\
    § 12188 (b)(1)(B), and may seek \"such other relief as the court
    considers to be appropriate, including monetary damages to persons
    aggrieved \...\" 42 U.S.C. § 12188 (b)(2)(B). This action is fully
    consistent with Congress\' express grant of standing to the Attorney
    General and the statute\'s authorization to seek monetary damages to
    compensate victims of discrimination.

    If this Court finds that the government\'s damage request survives
    Pena\'s death, then damages may be awarded to Pena\'s heirs and/or
    successors. There is no basis, either in the case law or the
    statutes, for any \"standing\" argument to the contrary.

[^13]: ^?^ [See]{.underline} [also]{.underline} 5 Charles A. Wright et.
    al., Federal Practice and Procedure: Civil § 1255 at 367-68 (2d ed.)
    (\"The sufficiency of a pleading is tested by the statement of the
    claim and the demand for judgment is not considered part of the
    claim.\")