Number range CHAPTERIN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[                                                                           ]{.underline}

)

DEBORAH E. MILLER, [et]{.underline} [al]{.underline}., )

)

Plaintiffs, )

)

and )

)

The UNITED STATES OF AMERICA, ) CA No. 96-CV02833 (SS)

)

Plaintiff-Intervenor, )

)

v\. )

)

DISTRICT OF COLUMBIA, [et]{.underline} [al]{.underline}. )

)

Defendants. )

)

**UNITED STATES\' MEMORANDUM OF POINTS AND AUTHORITIES**

**IN OPPOSITION TO DEFENDANTS\' MOTION**

**[TO AMEND JUDGMENT AND VACATE INJUNCTIVE RELIEF]{.underline}**

**Introduction**

On November 5, 1997, the Court entered partial summary judgment in favor
of plaintiffs Deborah Miller and Sean Owens and plaintiff-intervenor the
United States. The Court held that defendants District of Columbia and
District of Columbia Metropolitan Police Department (collectively, the
\"District\") had violated, and continued to violate, title II of the
Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 (\"ADA\"), and
Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
794 (\"Rehabilitation Act\"), by failing to provide direct, effective
access to its 9-1-1 system for qualified individuals with disabilities.
Specifically, the Court found that \"For more than a year, the
District\'s emergency 9-1-1 system has been virtually inaccessible to
deaf individuals requiring emergency services.\" The Court\'s November
5, 1997, order (the \"Order\") also granted plaintiffs\' and the United
States\' motions for injunctive relief, specifying numerous actions that
the District must take to bring its 9-1-1 system into compliance with
Federal requirements and to help ensure that the District\'s system will
remain in compliance in the future.

The District moves the Court to alter its judgment and vacate its
injunctive relief, arguing that: (i) summary judgment should not have
been entered because there were genuine issues of material fact, (ii)
the record did not reflect that the injunctive relief ordered by the
Court was actually needed because the District has voluntarily
cooperated with plaintiffs and the United States\' to improve the
accessibility of the its\
9-1-1 system, and (iii) the injunctive relief ordered by the Court was
overly broad and unsupported by the record.

The District\'s arguments are meritless. First, the District openly
admitted at the hearing on plaintiffs\' and the United States\' motions
for partial summary judgment that there were no genuine issues of
material fact regarding the events at issue in this lawsuit. Second,
plaintiffs and the United States proved the need for injunctive relief
by showing that the District\'s\
9-1-1 system has not been in compliance with the requirements of the ADA
and the Rehabilitation Act for two years and still does not comply.
Third, the Court properly exercised its discretion to issue injunctive
relief that is specifically fashioned to ensure that the District brings
its 9-1-1 system into compliance.

**Factual Background**

On December 23, 1996, plaintiffs filed an action alleging,
[inter]{.underline} [alia]{.underline}, that the District had
discriminated against them on the basis of disability by operating its
9-1-1 telephone emergency system so that it was not accessible to
persons who use telecommunications devices for the deaf (\"TDD\'s\"). On
March 13, 1997, the United States filed a motion to intervene as a
plaintiff in the action, which the Court granted. Before filing its
motion to intervene, and at all times before and after the Court\'s
entry of its November 5, 1997, order (the \"Order\") granting partial
summary judgment, the United States has expressed its willingness to
work with the District to bring its 9-1-1 system into compliance with
ADA and Rehabilitation Act requirements and to reach an amicable
settlement of this lawsuit.

On May 9, 1997, this Court ordered the United States Department of
Justice (\"DOJ\"), to conduct an on-site audit of the District\'s 9-1-1
system and file with the Court an audit report, including findings and
recommendations regarding the District\'s compliance with the Federal
requirements for direct, effective access to 9-1-1 services for
individuals with disabilities who use TDD\'s. In its first audit report,
which was filed with the Court on June 19, 1997, DOJ found that the
District failed to meet the Federal requirements to provide direct,
effective access to its 9-1-1 system for persons who use TDD\'s.
Specifically, DOJ found that the District had utilized a faulty computer
software interface for connection between each 9-1-1 call-taker position
and the District\'s TDD equipment; as a result, the call-takers were
unable to use the TDD equipment at each position in order to respond to
incoming TDD calls or to query silent open lines for potential TDD
calls. DOJ also found other major deficiencies in the District\'s TDD
9-1-1 system: the District lacked procedures to audit the quality of TDD
9-1-1 service, and to provide maintenance for TDD\'s and related
equipment; the District had not provided comprehensive TDD training to
call-takers, which is necessary for the effective processing of TDD
calls; and that the District had not issued mandatory TDD directives for
call-takers and disciplinary action for noncompliance. The audit report
specified seven remedial actions that the District needed to take to
bring its 9-1-1 system into compliance with the Federal requirements.
[The District did not dispute any of DOJ\'s audit findings, including
DOJ\'s finding that the District\'s 9-1-1 system did not provide direct,
effective access to persons who use TDD\'s]{.underline}.

Based on the results of its audit, the United States and plaintiffs
filed separate motions for a temporary restraining order (\"TRO\") and
preliminary injunction. After oral argument, during which the District
did not contest any of the findings of the DOJ audit, the Court issued a
TRO on July 17, 1997. By agreement of the parties, the TRO was extended
by two separate bridge orders entered on July 23, 1997, and September 2,
1997. Following entry of these bridge orders, plaintiffs and the United
States filed separate motions for partial summary judgment based on
admissions by the District and DOJ\'s uncontested audit findings.

Pursuant to the TRO and bridge orders, on September 16, 1997, DOJ made
another on-site audit of the District\'s 9-1-1 system, made test calls
to the District\'s 9-1-1 system, and filed a second audit report with
the Court on September 26, 1997. In its second audit report, DOJ made a
finding that although the District had made some improvement in its
handling of TDD 9-1-1 calls for police assistance, the District had not
properly handled those calls that requested firefighting assistance or
emergency medical services. Specifically, the second audit revealed that
the District had failed to establish procedures, and failed to obtain
the equipment needed, to handle TDD 9-1-1 calls requesting fire
protection services or emergency medical services. [The District did not
contest the findings of DOJ\'s second audit report, which included a
finding that the District\'s 9-1-1 system still failed to comply with
the Federal requirements.]{.underline}

By agreement of the parties, and to give the parties time to attempt to
settle this lawsuit, the Court entered a third bridge order on September
30, 1997. The third bridge order extended injunctive relief through
October 22, 1997, continued the hearing of the United States\' and
Plaintiffs\' motions for a preliminary injunction until October 22,
1997, and scheduled hearing of plaintiffs\' and the United States\'
motions for partial summary judgment for October 22, 1997.

From June 19, 1997, when the United States filed its first audit report,
until the October 22, 1997, hearing on plaintiffs\' and the United
States\' motions for partial summary judgment and preliminary injunctive
relief, plaintiffs, the United States, and the District engaged in
ongoing settlement negotiations. Those settlement negotiations proved
unsuccessful for one reason. Even though plaintiffs and the United
States were willing to forego a finding of liability in order to settle
this case, and despite undisputed evidence that the District\'s 9-1-1
system had routinely failed to provide any response whatsoever to TDD
calls, the District was never able to make any binding commitment to
plaintiffs or the United States.

On October 22, 1997, the Court conducted a hearing on plaintiffs\' and
the United States\' motions for partial summary judgment and preliminary
injunctive relief. During the hearing, the Court specifically asked the
District\'s counsel if there were any genuine disputes regarding the
facts on which plaintiffs\' and the United States\' motions were based.
The District\'s counsel admitted that there were no disputed facts
regarding the 9-1-1 system\'s failure to respond to TDD calls. Based on
the District\'s admission that there were no disputed facts, the Court
stated that it was prepared to rule on the pending motions. The Court
asked the United States to make a recommendation regarding injunctive
relief, asked the District to indicate which provisions of the
recommended injunctive relief were disputed, and advised the parties
that, before ruling on the pending motions, it would give the parties
until October 31, 1997, to reach a final settlement of the case.
Plaintiffs and the United States represented to the Court that they
would work toward settlement if the District could make a binding
commitment, and the parties were ordered by the Court to report the
final result to the Court by October 31, 1997. The District failed to
commit to settle the case.

As requested by the Court, the United States filed its recommended
provisions for injunctive relief on October 30, 1997, providing copies
of its submission to the District and to plaintiffs. On November 5,
1997, the Court rendered its memorandum opinion and order granting
partial summary judgment in Plaintiffs\' and the United States\' favor,
and entering injunctive relief recommended by the United States. The
District has now asked for an amendment of the judgment and vacation of
the injunctive relief pursuant to Fed. R. Civ. P. 59.[^1]

**Argument**

A Rule 59(e) motion is discretionary and need not be granted unless the
district court finds (1) an intervening change of

controlling law, (2) the availability of new evidence, or (3) the need
to correct a clear error or prevent manifest injustice. [Firestone v.
Firestone]{.underline}, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (citations
omitted). It appears from the District\'s motion that the only
applicable element of review in this case would be the need to correct
clear error or to prevent manifest injustice. The District has failed to
show such need exists.

> A. **The District Has Failed to Show Any Genuine Disputes of Material
> Fact.**

Although the District\'s counsel admitted at the October 22, 1997
hearing that there were no genuine issues of material fact regarding the
District\'s failure to answer TDD calls, the District now claims that
factual disputes should have prevented the Court from granting partial
summary judgment in this case. While it concedes that there is no
dispute regarding the fact that plaintiffs\' TDD calls, and numerous
other TDD calls to the District\'s 9-1-1 system placed by the United
States, received no TDD response whatsoever from the District\'s 9-1-1
system, it contends that there are nonetheless material disputes of fact
preventing summary judgment because undisputed evidence does not show
[why]{.underline} those calls were not answered.

The District\'s arguments lack merit for two reasons. First, contrary to
the District\'s claim, ample undisputed evidence proves that, between
1995 and 1997, the District\'s TDD-9-1-1 integrated system failed to
provide direct, effective access to persons who use TDD\'s. Second, the
reason why the District\'s 9-1-1 system failed to respond to TDD calls
is simply not material to the Court\'s summary judgment ruling, since
plaintiffs and the United States were not required to prove intent in
order to prove violations of the ADA and the Rehabilitation Act.

> 1\. **The Undisputed Facts Prove That the District\'s Integrated
> TDD-9-1-1 System Failed to Function Properly.**

As counsel for the District admitted during the hearing on plaintiffs\'
and the United States\' motions for partial summary judgment and
preliminary injunctive relief, the District does not dispute the
following material facts that form the basis for the Court\'s ruling in
this case:

Since 1994, the District has used its integrated TDD computer-aided
dispatch system as the primary response mechanism for responding to TDD
9-1-1 calls. [See]{.underline} Rule 108(H) Statement of Undisputed
Material Facts Filed in Support of the United States\' Motion for
Partial Summary Judgment (\"U.S. Statement of Facts\") at ¶ 21. During
that time period, the District used a faulty computer software interface
to connect the existing 9-1-1 system to the TDD equipment, thus
rendering the integrated TDD 9-1-1 system ineffective. U.S. Statement of
Facts at ¶¶ 71-72, 74-75.[^2]

In the summer of 1996, Plaintiffs Miller and Owens attempted to call the
District\'s 9-1-1 system by TDD several times but were

unable to receive an answer by TDD. U.S. Statement of Facts at ¶¶ 42-49.

Test calls placed by Gallaudet University between July 12, 1996, and
October 4, 1996, revealed that the District\'s TDD 9-1-1 system was
ineffective, that most TDD calls were not answered, and that the
District conducted no follow-up to evaluate the reasons for unanswered
calls. U.S. Statements of Facts at ¶¶ 61-64.

In May 1997, DOJ conducted an audit of the District\'s 9-1-1 system and
found that the District\'s TDD-9-1-1 system was unable to provide any
response to TDD test calls placed during the audit because of the
nonfunctioning interface between the 9-1-1 system and the District\'s
TDD equipment. The District did not dispute this audit finding.

In September 1997, DOJ conducted a second audit of the District\'s 9-1-1
system and found that the District had not established proper
procedures, or obtained the equipment needed, to provide direct,
effective access to the 9-1-1 system for TDD users seeking firefighting
assistance or emergency medical service. The District did not dispute
this audit finding.

Thus, notwithstanding the District\'s arguments to the contrary,
plaintiffs and the United States have proved beyond dispute that the
District violated the ADA and the Rehabilitation Act by operating a
9-1-1 system that failed (and continues to fail) to provide direct,
effective access to persons who use TDD\'s, including plaintiffs Miller
and Owens.

> **2**. **The Reason Why the District\'s 9-1-1 System Fails to Comply
> with Federal Requirements Is Not Material to the Court\'s Summary
> Judgment Ruling.**

The District claims that summary judgment should not have been entered
because there are disputes of fact regarding why the District\'s 9-1-1
system failed to answer plaintiffs\' and the United States\' calls. The
reason why the District\'s 9-1-1 system denied access to persons who use
TDD\'s is not material to a summary judgment ruling on an ADA or
Rehabilitation Act claim because plaintiffs alleging violation of these
Acts are not required to prove intent. [See,]{.underline}
[e.g.]{.underline}, 42 U.S.C. § 12132 (\"no qualified individual with a
disability shall, by reason of such disability, 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\"); [Alexander v. Choate]{.underline}, 469 U.S. 287, 295
(1985); [Nathanson v. Medical College of Pennsylvania]{.underline}, 926
F.2d 1368, 1384 (3d Cir. 1991); [Mayberry v. VonValtier]{.underline},
843 F. Supp. 1160, 1164 (E.D. Mich. 1994).[^3]

Moreover, the District cannot defeat summary judgment unless it proves a
dispute of fact that is \"material.\" [See]{.underline} Fed. R. Civ. P.
56(c); [Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317, 323-24
(1986); [Anderson v. Liberty Lobby, Inc.]{.underline}, 477 U.S. 242, 250
(1986); [Matsushita Elec. Indus. Co. v. Zenith Radio Corp]{.underline}.,
475 U.S. 574, 586-87 (1986); [Adickes v. S.H. Kress & Co.]{.underline},
398 U.S. 144 (1970). The District does not now and has not previously
disputed the repeated failures of the 9-1-1 system. Even now, the only
dispute alleged goes only to alternative excuses for failures to
guarantee effective access to the emergency response system.

Thus, the District has shown no genuine issue of material fact that
should have barred the Court\'s ruling in this case.

> B. **The Court\'s Issuance of Injunctive Relief Was Amply Supported by
> the Facts.**

The District argues that the Court erred in issuing injunctive relief
because the District had already taken actions to improve the
performance of its 9-1-1 system. The District\'s argument is unavailing
for three reasons.

First, the Supreme Court has long held that a defendant\'s voluntary
decision to cease illegal conduct does not, and cannot, eliminate the
need for injunctive relief, absent an order compelling the defendant to
comply with the law. [United States v. W.T. Grant Co.]{.underline}, 345
U.S. 629, 632 (1953). As the Supreme Court ruled, injunctive relief is
necessary despite voluntary cessation of illegal conduct because, absent
an order compelling lawful conduct, the \"defendant is free to return to
\[its\] old ways.\" [Id.]{.underline} at 632. [Accord]{.underline}
[Payne Enterprises, Inc. v. United States]{.underline}, 837 F.2d 486,
491 (D.C. Cir. 1988). Thus, the District\'s allegedly voluntary efforts
to move its 9-1-1 system toward compliance with Federal requirements
have not rendered plaintiffs\' and the United States\' claims for
injunctive relief moot. Without an injunction, the District would be
free to return to its \"old ways\" of not answering TDD calls.

Second, the District\'s efforts to bring its 9-1-1 system into
compliance with the Federal requirements provide no defense to the
issuance of injunctive relief. Although the District emphasizes its
cooperation with the United States\' audit recommendations, the
District\'s efforts to comply with the ADA and the Rehabilitation Act
cannot realistically be called voluntary. The District\'s willingness to
take action to comply with Federal requirements did not even begin until
after the United States intervened in this lawsuit and advised the
District that it would be seeking a TRO to obtain compliance.

Finally, notwithstanding the District\'s unsupported arguments to the
contrary, the District\'s 9-1-1 system is not yet in compliance with the
Federal requirements. In its September 26, 1997 audit report, the United
States made the finding that the District had failed to establish
necessary procedures, and failed to obtain the equipment needed, to
provide direct, effective access to TDD callers seeking fire protective
services or emergency medical services. Thus, the District\'s assertion
that injunctive relief is unnecessary because it has already complied
with Federal requirements is baseless.[^4]

> **C. The Injunctive Relief Issued by the Court Is Necessary to Ensure
> that Persons with Hearing Impairments Are Not Denied Access to the
> District\'s Emergency Services.**

The issuance of injunctive relief is a matter committed to the sound
discretion of the Court. [Tennessee Valley Authority v.
Hill]{.underline}, 437 U.S. 153, 192 (1978); [Lemon v.
Kurtzman]{.underline}, 411 U.S. 192, 200 (1973). In fashioning
injunctive relief to prevent violation of a federal statute, the
principle guiding the Court\'s exercise of discretion is whether the
injunctive relief sought will prevent future violation of the statute
and effectuate the congressional purpose behind the statute.
[Id.]{.underline} at 192-94. [See also]{.underline} [SEC v. First City
Financial Corp.]{.underline}, 890 F.2d 1215, 1228 (D.C. Cir. 1989);
[National Wildlife Fed\'n v. Andrus]{.underline}, 440 F. Supp. 1245,
1256 (D.D.C. 1977) (clear and substantial violation of statute lessens
need to balance other equitable factors); [Community Nutrition Inst. v.
Butz]{.underline}, 420 F. Supp. 751, 754 (D.D.C. 1976) (where a federal
statute has been violated, the court need not inquire into traditional
requirements for equitable relief); [Sierra Club v.
Coleman]{.underline}, 405 F. Supp. 53, 54 (D.D.C. 1975) (same).

The District challenges four specific provisions of the Order: (i)
provisions relating to Emergency Telephone Accessibility to Fire and
Emergency Medical Services (Order, ¶¶ I (2), IV (2)); (ii) provisions
relating to Public Education (Order, ¶ VI); (iii) provisions relating to
Performance Standards(Order, ¶ XI); and (iv) provisions relating to
Requirement of an External Contractor (Order, ¶ IX(1)). But each of
these provisions is a proper exercise of the Court\'s authority,
specifically tailored to prevent discrimination against persons with
disabilities in violation of the ADA and the Rehabilitation Act by
ensuring that the District will not deny access to its 9-1-1 emergency
services for persons with disabilities who use TDD\'s.[^5]

> **1. Emergency Telephone Accessibility to Fire and Emergency Medical
> Services**

The District suggests that the Court has abused its discretion by
issuing injunctive relief requiring access to fire and emergency medical
services. Notwithstanding the District\'s current protestations, the
record demonstrates that injunctive relief is required to ensure access
to the District\'s fire and emergency medical services for persons who
use TDD\'s.

Contrary to the District\'s arguments, its fire and emergency services
are well within the scope of the complaints in this action. Plaintiffs\'
and the United States\' complaints arise, in part, from the District\'s
failure to respond to Sean Owens\' calls to 9-1-1 for emergency medical
services. In addition, the United States\' second audit report on the
District\'s 9-1-1 system, which was uncontested by the District,
revealed that the District had failed to establish proper procedures,
and obtain the TDD 9-1-1 equipment, which are necessary to provide
direct, effective access to the District\'s fire and emergency services
for persons who use TDD\'s.

Paragraphs I(2) and IV(2) of the Order are tailored to ensure that the
District establishes the requisite procedures, procures the necessary
TDD 9-1-1 equipment, conducts the required training, and monitors its
own performance in answering TDD calls seeking fire protective services
and emergency medical services. They are plainly designed to ensure that
the District ceases violating the ADA and the Rehabilitation Act by
denying direct, effective access to TDD callers seeking fire and
emergency medical services.

> 2\. **Public Education**

The District incorrectly contends that the Court abused its discretion
by requiring the District to engage in public education efforts. The
record establishes that the District\'s\
9-1-1 system has denied access to persons with disabilities who use
TDD\'s since at least 1995. Public education efforts are plainly
required to advise persons with disabilities that the District\'s 9-1-1
system will be responding to TDD calls. Communication between District
personnel who operate the 9-1-1 system and persons with disabilities who
use TDD\'s is necessary to assure continued access to telephone
emergency services. Thus, the provisions of ¶ VI of the Order are
clearly fashioned to ensure the District\'s compliance with the ADA and
the Rehabilitation Act and to further the Congressional purpose of
eliminating discrimination against persons with disabilities by ensuring
equal access to services.

> **3. Performance Standards**

The District contends that the Court abused its discretion in
establishing performance standards for the District\'s handling of TDD
calls and that the standards are unreasonable. This claim is likewise
baseless.

The record establishes that, in the instances where the District has
succeeded in answering a TDD call, the delay time for answering the call
is much longer than the delay time for answering a call placed by a
standard telephone. For example, the District averaged 12.0 seconds for
TDD calls versus 4.5 seconds for standard calls in 1994; 25.6 seconds
versus 6.9 seconds in 1995; and 20.1 seconds versus 5.6 seconds in 1996.
In situations where a person is seeking emergency police, fire, or
medical assistance, a delay of a few extra seconds can mean the
difference between life and death. By taking three to four times longer
to answer TDD calls than it takes to answer voice calls, the District is
plainly not providing effective access to emergency services for persons
who use TDD\'s. The Court\' establishment of the performance standards
contained in ¶ XI of

its Order is plainly designed to ensure that the District provides
access to 9-1-1 emergency services for persons with disabilities who
must use TDD\'s that is comparable to the access afforded to persons who
use standard telephones. And, contrary to the District\'s claims, the
standard adopted by the Court is a reasonable one \-- requiring the
District to answer 90% of its TDD calls within an average time of 10
seconds. Thus, the performance standards in ¶ XI are designed to end
discrimination without posing unreasonable or unachievable burdens on
the District.

> 4\. **Requirement of an External Contractor**

The District contends that the Court abused its discretion in ordering
it to procure the services of an external contractor to perform
monitoring of the District\'s 9-1-1 system. The District cannot dispute
that external monitoring of its 9-1-1 system would help ensure that the
District complies with Federal the requirements in the future. It
contends, instead, that procurement of services from an external
contractor is unnecessary because the District has a cooperative
arrangement with Gallaudet University, which voluntarily performs
monitoring of the District\'s 9-1-1 system without compensation.

Contrary to the District\'s objections, Paragraph IX(1) of the Order is
necessary and properly tailored to ensure compliance with the ADA and
the Rehabilitation Act\'s prohibitions against discrimination. The
District argues that it should not be required to procure an external
contractor while it is receiving monitoring services from Gallaudet
University for free. But, as with any voluntary arrangement, Gallaudet
University is free to cease its monitoring of the District\'s 9-1-1
system at any time. Thus, without a provision of the Order requiring the
District to procure external monitoring services, the Court has no
assurance that such external monitoring will continue, and no means to
require the monitoring to be performed pursuant to the requirements of
the Order. By issuing an injunction requiring the District to procure
external monitoring services, the Court has ensured that the District\'s
9-1-1 system will be monitored by a nonparty to this action, that the
monitoring will be conducted in a manner designed to provide data that
is meaningful in evaluating the 9-1-1 system\'s performance, and that
the results of the monitoring will be reported to plaintiffs, DOJ, and
the Court consistent with the terms of its Order.

Accordingly, the provisions of Paragraph XI(1) plainly do not constitute
an abuse of the Court\'s discretion to fashion proper equitable relief.

**Conclusion**

For the reasons set forth above, the United States respectfully requests
that the Defendant\'s Motion to Amend Judgment and Vacate Injunctive
Relief be denied.

Respectfully Submitted,

ISABELLE K. PINZLER

Acting Assistant Attorney General

Civil Rights Division

By: [                             ]{.underline}

JOHN L. WODATCH, Chief (#344523)

RENEE M. WOHLENHAUS, Acting Deputy Chief

ROBERT J. MATHER (#264598)

JEANINE M. WORDEN (#420177)

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

\(202\) 307-6556

Dated: December 4, 1997

Washington, D.C.

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this 4th day of December 1997, a copy of the
foregoing United States\' Memorandum of Points and Authorities in
Opposition to the Defendants\' Motion to Amend Judgment and Vacate
Injunctive Relief was served by U.S. mail and facsimile on the
following:

> Charles Both
>
> Yablonski, Both & Edelman
>
> 1140 Connecticut Avenue, N.W.
>
> Washington, D.C. 20036
>
> E. Elaine Gardner
>
> Washington Lawyers\' Committee
>
> for Civil Rights and Urban Affairs
>
> 1300 19th Street, N.W.
>
> Suite 500
>
> Washington, D.C. 20036
>
> Attorneys for Plaintiffs

Arabella Teal

> Assistant Corporation Counsel
>
> Corporation Counsel Office of
>
> the Government of the
>
> District of Columbia
>
> 441 4th Street N.W.
>
> Suite 6th Floor So. #73
>
> Washington, D.C. 20001
>
> Attorney for Defendants

[                                ]{.underline}

Robert J. Mather \[DC Bar 264598\]

Attorney

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

Dated this 4th day of December 1997.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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

> )

DEBORAH E. MILLER, )

)

and )

)

SEAN OWENS, )

)

Plaintiffs, )

)

and )

) CA 96-CV02833 (SS)

THE UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor, )

)

v\. )

)

DISTRICT OF COLUMBIA, [et]{.underline} [al]{.underline}., )

> )

Defendants. )

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

**ORDER**

Upon consideration of Defendants\' Motion to Amend Order and Vacate
Injunctive Relief, Plaintiffs Opposition, the United States\' Opposition
thereto, Defendants\' reply, if any , and the entire record herein, it
is this \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 1997 hereby,

ORDERED that Defendants\' Motion to Amend Judgment and Vacate Injunctive
Relief be, and it hereby is, DENIED.

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

Stanley Sporkin

United States District Judge

cc:

Charles Both, Esq.

Yablonski, Both & Edelman

1140 Connecticut Avenue, N.W.

Washington, D.C. 10036

E. Elaine Gardner, Esq.

Washington Lawyers\' Committee

for Civil Rights and Urban Affairs

1300 19th Street, N.W.

Suite 500

Washington, D.C. 20036

Arabella W. Teal, Esq.

Assistant Corporation Counsel

Office of the Corporation Counsel

441 4th Street, N.W.

Suite 6th Floor South \# 73

Washington, D.C. 20001

Robert J. Mather, Esq.

Jeanine M. Worden, Esq.

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

[^1]: / The District incorrectly specified subsection (a) of Rule 59
    upon which it was relying for its motion. Fed. R. Civ. P. 59(a)
    provides for a new trial, but it is inapplicable to this case,
    because the judgment challenged was not the result of a trial. Rule
    59(e) allows a movant to seek to \"alter or amend the judgment\"
    (relief that includes vacating a judgment). [See]{.underline}
    [Richardson v. National R.R. Passenger Corp.]{.underline}, 49 F.3d
    760, 763 n.2 (D.C. Cir. 1995). Accordingly, the District\'s motion
    to amend and vacate should be considered a Rule 59(e) motion,
    instead of a Rule 59(a) motion.

[^2]: / Moreover, in 1995, a DOJ audit of the District\'s 9-1-1 system
    showed that the District\'s 9-1-1 system was unable to answer TDD
    calls because either the system was incapable of querying silent
    open lines at each answering position to determine if the call was a
    TDD call or else the District\'s call-takers failed to do so. U.S.
    Statement of Facts at ¶ 31.

[^3]: / Even if plaintiffs and the United States were required to prove
    intentional discrimination, they have plainly done so. The
    District\'s deliberate indifference to the inaccessibility of its
    9-1-1 system from 1994 until this Court entered its TRO plainly
    constitutes intentional discrimination.

[^4]: / The District suggests that plaintiffs and the United States are
    attempting to impermissibly broaden this suit by including

    9-1-1 access to services provided by the District\'s Metropolitan
    Fire Department, such as emergency medical services. However,
    Plaintiff Owens\' call to the District\'s 9-1-1 system was a call
    seeking emergency medical assistance. Thus, such services are
    plainly within the purview of plaintiffs\' and the United States\'
    complaints.

[^5]: / In enacting the Americans with Disabilities Act, Congress sought
    to \"provide a clear and comprehensive national mandate for the
    elimination of discrimination against individuals with
    disabilities.\" 42 U.S.C. § 12101(b)(1); [Swanks v. Washington
    Metropolitan Area Transit Auth.]{.underline}, 116 F.3d 582, 584
    (D.C. Cir. 1997). The regulation implementing the ADA, [inter
    alia]{.underline}, mandates that the services provided by public
    entities to persons with disabilities be \"as effective\" in
    affording equal opportunity to obtain the same result, to gain the
    same benefit, or to reach the same level of achievement as those
    provided to others. 28 C.F.R. § 35.130(b)(iii). Access to 9-1-1
    telephone services for individuals who use TDD\'s must be
    \"direct.\" [Id.]{.underline} at § 35.162.