Case 2:10-cv-01535-SJF -ARL Document 4 Filed 04/08/10 Page 1 of 14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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DANNY ABRAHAMS, ANTHONY CELARDO, KEVIN CHRISTMAN, LAUREN EPSTEIN, MERYL JACKELOW, EVAN SKIDMORE, DAVID TINDAL, LEE WOLBRUM, JOSE DELEON, TRACEY GILBERT, VISHNU KONDREDDI, MARlCAR MARQUEZ, SARA STRONG, and NATHAN WRIGHT
Plaintiffs

AMENDED COMPLAINT
DOCKET NO. CV 10-1535 (JS) (AKT)

-againstMTA LONG ISLAND BUS,
Defendants
------------------------------------------------------------J( INTRODUCTION
1. Plaintiffs Danny Abrahams, Anthony Ce1ardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrom, Jose DeLeon, Tracey Gilbert, Vishnu Kondreddi, Maricar Marquez, Sara Strong, and Nathan Wright, by counsel, bring this class action against defendant MTA Long Island Bus.
2. This is a civil rights action for declaratory and injunctive relief and damages to remedy a violation of the Americans With Disabilities Act (ADA) and its regulations by defendant MTA Long Island Bus for eliminating paratransit service for people with disabilities

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in contravention of the ADA and its regulations. This action is also brought pursuant to the Federal Fair Housing Act (FHA), Section 504 ofthe Rehabilitation Act of 1973, and the New York State Human Rights Law on the grounds that the services cuts made by MTA Long Island Bus in general have a discriminatory and disparate impact on people with disabilities in violation of that law.
3. The removal of this service will prevent people with disabilities from being able to live independently in the community. It will prevent and make extremely difficult their ability to go to their jobs or medical appointments or visit friends and family or continue with other social activities in the community.
JURISDICTION 4. Jurisdiction is conferred on this Court by 42 U.S.c. §§ 3613 and 12133 and 28 U.S .c. §1331. 5. Venue is proper in this District pursuant to 28 U.S.C. §1391(b) because the claims arose in this District, all of the parties reside in this District, and the Defendants conducts business in this District. This Court may assert supplemental jurisdiction over the State law claims.
PARTIES 6. Plaintiffs Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal and Lee Wolbrom are people with disabilities who are residents of several communities in Nassau County, New York. 7. Plaintiffs Jose DeLeon, Tracey Gilbert, Vishnu Kondreddi, Maricar Marquez, Sara Strong, and Nathan Wright are all associated with the Helen Keller National Center, a facility that provides services to people who are deaf and/or blind. The Helen Keller National Center is
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located in Sands Point, New York, a community in the No-Able Ride Zone and would lose Able Ride service if defendant's new policy takes effect on April 12, 2010.
8. Defendant MTA Long Island Bus is a public transportation company that is an agency of the Metropolitan Transportation Authority, State of New York. Its principal offices are located in Garden City, Nassau County, New York.
FACTS A. The New MTA Long Island Bus Policy.
9. Under its present policy, MTA Long Island Bus provides paratransit service called "Able Ride" to qualified people with disabilities in Nassau County.
10. That service was a door to door service, regardless of proximity to a fixed bus route. 11. In other words, if a person with a disability needed a paratransit to bring them from their home in Great Neck to ajob in Plainview, the paratransit would meet the person with a disability at their home in Great Neck, transport them directly to their job in Plainview, and back again at the end of the workday. 12. As a result, people with disabilities were able to live independent lives in Nassau County. They were able to go from one end of Nassau County to another, arrange for housing in the community of their choice and medical care and jobs based on the paratransit system. They were able to visit their family and friends in other sections of Nassau County. The system allowed these people to live independent lives. 13. On March 10,2010, defendant MTA Long Island Bus sent a letter to consumers of its Able Ride service stating as follows; Effective April 12, 2010, Able-Ride will no longer provide a paratransit service to areas of Nassau County that are beyond the service area defined by the Americans With Disabilities Act. (ADA).
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The ADA requires public transportation agencies to provide matching paratransit service to locations within the three-quarters of a mile on either side of a fixedrout (regular) bus line. This service also includes a three-quarter mile radius at the end of each fixed-route bus line. In addition, paratransit service must be offered during the same days and hours that the regular fixed-route bus is in operation. Since its inception, Able-Ride has also provided service in areas such as Bayville, Syosset and Oyster Bay, which are outside the area required by the ADA. This additional service represented approximately 9 percent of Able-Ride's total completed trips in 2009.
13. Reading this statement as best as possible, it appeared that the letter stated that anyone living more than three-quarters of a mile from a bus route would not receive any Able Ride service and that anyone living three-quarters of a mile or less from a bus route would receive Able Ride service but only to the bus route.
14. Prior to commencing the lawsuit on April 7, 2010, plaintiffs' counsel spoke to counsel for the defendant and asked for a clarification as to meaning of the letter. Defendant's counsel declined to provide any clarification.
15. On the morning of April 7, 2010, defendant's counsel along with a Thomas Charles, an MTA employee with some responsibility over Able Ride came to Court with plaintiffs' counsel.
16. At that time, Mr. Charles made the following representations about the new policies to plaintiffs' counsel:
a. Able Ride service within most of Nassau County was not being discontinued. For example, if someone wanted an Able Ride from Great Neck from Massapequa, that person would receive door-to-door service even if they lived more than three-quarters of a mile from a bus route.
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b. However, Able Ride would no longer provide any service within the Northeastern quadrant of Nassau County and a few other areas (''No-Able Ride Zone"). Syosset, Oyster Bay, Bayville and Sands Point are in the No-Able Ride Zone. Therefore, if someone living in or working at the Helen Keller National Center in Sands Point (located in the No-Able Ride Zone) could not receive an Able Ride to neighboring Port Washington since Sands Point is in the NoAble Ride Zone.
c. Similarly, someone eligible for Able Ride service could not receive Able Ride service to the No-Able Ride Zone. Therefore, someone living in Port Washington could not receive Able Ride service to Sands Point since Sands Point is in the No-Able Ride Zone.
d. A person living in an Able Ride area seeking to go to a location in the No-Able Ride Zone would be eligible for an Able Ride to a designated location in the Able Ride Zone and would then have to arrange for other transportation in the No-Able Ride Zone. Conversely, a person living in the No-Able Ride Zone would have to arrange for other transportation in the NoAble Ride Zone to a designated location in the Able Ride Zone and then receive an Able Ride from there within the Able Ride Zone.
e. The maps presented by Mr. Charles were not clear as to the boundaries of the No-Able Ride Zone and Mr. Charles did not even know whether Plainview, a destination of two of the named plaintiffs, was in the No-Able Ride Zone.
f. Mr. Charles did not seem clear whether the pick-Up places for Non-Able Ride Zone riders in the Able Ride Zone have already been selected. Mr. Charles did not know where plaintiff Epstein, a resident of Oyster Bay in the Non-Able Ride Zone, would have to meet the Able Ride in order to use the Able Ride in the Able Ride Zone.
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17. Mr. Charles' explanation of the Able Ride service reductions was both complicated and confusing (all the more so for the persons with disabilities who rely on Able Ride) and, most important, substantially different from the description in the March 10th letter. Mr. Charles' explanation of the "pick up" places in "designated locations" was not included in the March 10th letter and defendant's representatives could not identify where these "pick up" places were located or how a person who needs Able Ride transportation could identify the location of these "pick up places." Without this information, no one could "navigate" the Able Ride system."
18. If defendant's representatives cannot provide a clear and complete explanation of how the plan for reduced Able Ride service will work, then persons with disabilities and their representatives cannot be expected to be able to explain the intricacies of the reduction plan and how it may affect them.
19. With regard to defendant's counsel's representations about communications with people with disabilities with regard to the cuts in services, defendant's counsel claimed that some notice was placed in Able Ride vehicles and that there were public hearings on budget cuts in Flushing, Westbury and Riverhead. Defendant's counsel could not produce the notice that was purportedly placed in the Able Ride vehicles.
20. The public hearing in Westbury was held on March 2,2010, only eight days before the notice was given to Able Ride riders about the cuts in Able Ride services, and it is not clear what was discussed at that public hearing.
21. In any event, a public hearing held eight days before a service cut is hardly the communication intended by the ADA regulations pertaining to communication between a service provider and people with disabilities. It was not, as required by the ADA regulations, an
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"ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities" required by the ADA.
22. From the abovementioned communications with Mr. Charles and defendant's counsel on April 7, 2010, the following can be concluded:
a. There was no ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities as required by the ADA regulations.
b. Considering that the defendant will provide long rides by Able Ride (Such as from Great Neck to Massapequa) but not relatively short rides (such as from the Helen Keller National Center in Sands Point to Port Washington), it is hard to imagine the logic behind the decision as to which Able Ride services to cut or that there had been communication between the Helen Keller Center which serves a substantial number of Able Ride users in the No-Able Ride Zone.
c. Not only was the March 10, 2010 letter not reflective of the policy defendant aims to put into effect on April 12, 2010, it is impossible for users to determine the boundaries ofthe NoAble Ride Zone and it is not clear that there have been pick-up points yet designated by the defendant in the Able Ride Zone to meet No-Able Ride Zone riders.
23. While MTA Long Island Bus has made cutbacks in all of its services, the cutback of the paratransit service with have a disparate impact on people with disabilities as opposed to the cuts made in services for non-disabled persons. In other words, while the budget cuts as a whole will have some impact on non-disabled people, they will not wipe out service for non-disabled people. In contrast, the budget cuts as a whole they will effectively eliminate service entirely for some people with disabilities in Nassau County and thus have a disproportionate impact on people with disabilities.
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B. Plaintiffs Danny Abrahams, Anthony Celardo, Kevin Christman, Meryl Jackelow, Lauren Epstein, Evan Skidmore, David Tindal and Lee Wolbrom
24. Plaintiff Danny Abrahams is diagnosed with Neurological Impainnent. 25. Mr. Abrahams presently receives Able-Ride services from his home in Westbury. 26. Under the new policy, he would not receive Able Ride service in the No-Able Ride Zone. 27. Anthony Celardo, whose residence is in the No-Able Ride community of Syosset, has a primary diagnosis of cerebral palsy and is in a wheelchair. 28. He presently receives Able-Ride services to visit his family and friends, shopping, recreation and running errands, obtaining and maintaining employment and attending medical appointments. 29. As Mr. Celardo lives in the No-Able Ride Zone, he would effectively lose his AbleRide services from his home and the ability to live independently in the community. 30. Kevin Christman has a diagnosis of cerebral palsy and is in a wheelchair. 31. He currently lives in Wantagh and receives Able Ride services from his home. 32. Mr. Christman would not receive Able Ride service in the No-Able Ride Zone under the new policy. 33. Lauren Epstein has a disability of mild mental retardation, short tenn memory, seizure disorder, depression and hypothyroid. 34. She lives in the No-Able Ride Zone community of Oyster Bay and would thus lose the Able Ride service from her home.
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35. Ms. Epstein's mother lives in Hewlett, and while she presently would receive a paratransit from her home to visit her mother in Hewlett, she would lose that service with the new MTA Long Island Bus policy.
36. She would lose independence in visiting family and friends, shopping, recreation and running errands, and obtaining and maintaining employment.
37. Meryl Jackelow is diagnosed with Cerebral Palsy. 38. She presently receives Able-Ride services from her home in Westbury. 39. Ms. Jackelow would lose Able Ride service in the No-Able Ride Zone under the new MTApolicy. 40. Evan Skidmore's diagnosis is cerebral palsy. 41. At present Mr. Skidmore is a student at Hofstra University in Hempstead and uses Able-Ride to travel from his home in Syosset (a community in the No-Able Ride Zone) to Hempstead. 42. Mr. Skidmore has one more semester left at Hofstra, and would not be able to complete that semester without Able-Ride. 43. He also uses Able-Ride to visit his aunt in East Meadow, and would lose the Able Ride to visit her there. 44. David Tindal is diagnosed with cerebral palsy. 45. He lives in Baldwin and uses the Able Ride system.. 46. Under the new policy, Mr. Tindal would lose Able Ride service in the No-Able Ride Zone. 47. Lee Wolbrom has a diagnosis of mild mental retardation. 48. Mr. Wolbrom, who lives in Great Neck, presently uses Able Ride.
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49. Under the new policy, Mr. Wolbrom would lose Able Ride service in the No-Able Ride Zone. C. Plaintiffs Jose DeLeon, Tracey Gilbert, Vishnu Kondreddi, Maricar Marquez, Sara Strong and Nathan Wright.
50. Plaintiffs DeLeon, Gilbert, Kondreddi, Marquez, Strong and Wright are all associated with the Helen Keller National Center in Sands Point, a facility servicing people who are hearing and sight impaired.
51. Being located in the No-Able Ride Zone community of Sands Point, the Helen Keller Center would be particularly hard hit by the defendant's new Able Ride policy and would impede the ability of that facility to function.
52. Plaintiff DeLeon, who is legally blind and has sensorineural hearing loss, would lose his Able Ride service from the Helen Keller Center to places of work in Westbury and Manhasset.
53. Plaintiff Gilbert who is legally blind and works at the Helen Keller Center would not be able to receive Able Ride to travel from the Helen Keller Center to the community and for medical appointments.
54. PlaintiffKondreddi who has hearing and vision loss would lose his Able Ride service from the Helen Keller Center to places of work in Roslyn and Melville (which is presently covered by Able Ride though in Suffolk County on the border ofthe two counties.)
55. Plaintiff Marquez who is deaf-blind and has Usher's Syndrome would lose her Able Ride from the Helen Keller Center to medical appointments.
56. Plaintiff Strong who is deaf and has Ushers Syndrome, would lose her Able Ride service from the Helen Keller Center to places of work in Manhasset and Westbury.
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57. Plaintiff Wright who is legally blind and has sensorineural hearing loss would lose his Able Ride service from the Helen Keller Center to his place of work in Melville which is covered by Able Ride. D. Class Action Allegations
58. This action is suitable as a Class Action under Rule 23 ofthe F.R.C.P. 59. The class is so numerous that joinder of all members is impracticable, there are questions oflaw or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and, the representative parties will fairly and adequately protect the interests of the class. 60. The class would be all persons with disabilities qualified to use Able Ride services in Nassau County. E. The ADA and its Regulations and the New Policy. 61. The ADA requires the defendant to provide paratransit services as a complement to fixed route services. 42 U.S.C. §12143. 62. Under the ADA, the Secretary of Transportation was required to issue regulations to carry out the above section. 42 U.S.c. §12143(b). 63. The Secretary of Transportation did issue such regulations. 64. The regulations require public participation in the development of a paratransit plan by defendant. 49 C.F.R. §37.137(b). 65. Even after the paratransit plan is adopted, defendant is required "to create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. This includes, but is not limited to, the
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development ofthe initial plan, any request for an undue financial burden waiver, and each annual submission." Id.
66. In changing the paratransit policy, the defendant did not consult plaintiffs or any other people with disabilities in Nassau County who use the Able-Ride system on the change of policy.
67. If defendant had consulted plaintiffs or other people with disabilities in Nassau County who use the Able-Ride system on the change of policy, it would have learned that plaintiffs and other people with disabilities need far more than one month to rearrange their lives and make other alternatives without the Able-Ride paratransit system, ifthose alternatives can be made at all.
68. Indeed, if defendant had consulted plaintiffs or other people with disabilities in Nassau County, it may have learned ways that the defendant could save money without gutting the entire Able-Ride system and what other alternatives Able-Ride can make so that people with disabilities do not bear a disproportionate hardship as a result of the budget cuts.
69. The change of policy will cause irreparable damage to plaintiffs and other persons with disabilities since they will not have time to rearrange their lives and will lose jobs, access to day programs, family and friends, and other community resources because of the abrupt change in policy. They will lose their independence and ability to partake in activities in the community.
70. Indeed, some people with disabilities may not even learn that they are going to lose the para-transit service until April 12, 2010, the first day ofthe new policy.
71. In not consulting with and seeking the participation of plaintiffs and other persons with disabilities in the change of the Able-Ride service policy, defendant violated the regulations of the Secretary of Transportation.
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72. Additionally, in virtually eliminating the Able-Ride system for some people with disabilities, the budget cuts as a whole instituted by the defendants have a discriminatory impact on people with disabilities in their ability to live and function in the community in violation of the FHA and Section 504 ofthe Rehabilitation Act of 1973 and the New York State Human Rights Law.
AS AND FOR A FIRST CAUSE OF ACTION: ADA REGULATIONS 73. In not seeking the participation of plaintiffs and other persons with disabilities changes in the Able-Ride service policy, defendant violated the regulations of the United States Secretary of Transportation. 49 C.F.R. §37.137(c).
AS AND FOR A SECOND CAUSE OF ACTION: ADA, FHA, SECTION 504 OF THE REHABILITATION ACT, AND NEW YORK STATE LAW. 74. As defendant's budget cuts as a whole have a greater impact on people with disabilities than others because of their disabilities and because the defendant can find alternative means for their budget cuts that do not so impact people with disabilities the budget cuts which virtually eliminate paratransit service and transportation for some people with disabilities in Nassau County have a disparate impact on people with disabilities as compared to non-disabled persons in violation of the ADA, FHA, Section 504 of the Rehabilitation Act of 1973, and the New York State Human Rights Law (Executive Law §296). 75. Defendant receives considerable Federal funding and is covered under the Rehabilitation Act, and is covered under both Title II and Title III of the ADA since defendant is a public entity and the Able Ride service is a public accommodation.
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76. The FHA is implicated here because defendant's budget cuts treat people with disabilities differently from others and impedes people with disabilities from being able to live in the housing of their choice, and especially those who chose to live in the Northeastern quadrant of Nassau County.
WHEREFORE, it is respectfully requested that: 1. A preliminary and permanent injunction be issued to prevent defendant from instituting the Able-Ride change of policy stated in its letter dated March 10,2010 or any other proposed change in policy. 2. Compensatory damages to plaintiffs. 3. Attorneys fees. 4. Such other relief as this Court deems appropriate. Dated: Garden City, New York April 8,2010
MORITT HOCK HAMROFF & HOROWITZ LLP
ROBERT L. SCHONFELD (RS 777) 400 Garden City Plaza Garden City, New York 11530 (516) 873-2000
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 Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 1 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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DANNY ABRAHAMS, ANTHONY CELARDO, KEVIN CHRISTMAN, LAUREN EPSTEIN, MERYL JACKELOW, EVAN SKIDMORE, DAVID TINDAL, and LEE WOLBROM,
Plaintiffs,
-against-
MTA LONG ISLAND BUS, Defendant.
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FEUERSTEIN, 1.

ORDER
lO-CV-1535 (SJF) (ARL)

On April 7, 20 I 0, plaintiffs Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, and Lee Wolbrom (collectively, "Plaintiffs") commenced this action against defendant MTA Long Island Bus ("Defendant"), asserting violations of, inter alia, the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). On April 9, 2010, Plaintiffs moved for a preliminary injunction, and a Temporary Restraining Order ("TRO") was issued "enjoining Defendant from implementing changes in its paratransit policy" until April 27, 2010. (See Docket Entry # 7). On April 28, 20 10, the TRO was continued for thirty (30) days until May 27, 2010. (See Docket Entry # 20.) On May 7, 2010, Defendant moved to dismiss the Complaint pursuant to Rqles 12(b)(2), 12(b)(6), and 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiffs' motion for a preliminary injunction is denied and Defendant's motion to dismiss is granted.

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I. Background
Defendant, an agent ofthe Metropolitan Transportation Authority ofthe State ofNew York, provides public transportation services in Nassau County. (Compl., at ~ 7.) In addition to its fixed route public transportation services, Defendant's current Able-Ride service ("Able-Ride") provides "paratransit service to all people with a disability in Nassau County." (l!;6 at ~ 8). Specifically, Able-Ride transports eligible patrons door-to-door within Nassau County, regardless of the trip's proximity to a fixed route, although the ADA only requires paratransit within three quarters ofa mile of a fixed route, for medical appointments, employment, education, or personal visits. (Id., at ~~ 911.) Plaintiffs are all residents ofNassau County who have been diagnosed with impairments which qualify them for Defendant's Able-Ride services, and who regularly use Able-Ride as their primary mode of transportation. (Id., at ~~ 18-62.)
Plaintiffs allege that by letter dated March 10, 2010, Defendants notified Able-Ride users that as of April 12, 2010, "it would no longer be providing paratransit service to people with disabilities who live more than three-quarters of a mile from a fixed-route regular bus line or more than three-quarters of a mile from the end of a fixed-route bus line." (ld., at ~ 12.) Moreover, Defendants would no longer offer door-to-door service in the area within three-quarters of a mile from a fixed-route bus line, but Able-Ride would transport those users to the closest bus stop. (ld., at ~ 13.) Plaintiffs further allege that Defendants "did not give notice of its change in policy to any of the plaintiffs prior to the March 10, 2010 letter or hold any hearings at which Able-Ride users could express their concerns." CM,., at ~ 15.) According to Plaintiffs, as the bus system in Nassau County is not comprehensive, "dropping people with disabilities at the bus stop will not ensure that
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people with disabilities will be able to arrive at their destinations safely or in an efficient fashion." (rd., at 14.) Moreover, and although Defendants have made cutbacks in other services, "the cutback of the paratransit service [will] have a disparate impact on people with disabilities as opposed to the cuts made in services for non-disabled persons." (Id., at ~ 17.)
II. Statutory and Regulatory Framework
Plaintiffs' Complaint alleges claims pursuant to the ADA and Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 701, et seq. (the "Rehabilitation Act"V Specifically, Plaintiffs' claims rely upon Title II of the ADA ("Title II"), as well as the regulations promulgated thereto. Title II provides that "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." 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that "no otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under
I The Complaint also alleges a claim pursuant to the Federal Fair Housing Act, 42 U.S.C. § 2604, as amended, (the "FHA"). (Comp\., at ~ 2.) The FHA prohibits discrimination upon the basis of disability against any person in the sale or rental of a dwelling, or in the terms, conditions, privileges, or provision of services in connection with the sale or rental of a dwelling. 42 U.S.C. § 3604(f). Plaintiffs allege that "the services cuts made by MTA Long Island Bus have a discriminatory and disparate impact on people with disabilities in violation of that law." (Compl., at ~ 2.) However, the Complaint is silent as to any alleged discrimination in the provision of services in connection with the sale or rental of a dwelling, and as such, Plaintiffs FHA claim is dismissed. See Ashcroft, 129 S. Ct. at 1949 ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.).
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any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. The ADA and the Rehabilitation Act impose nearly identical requirements, and as such, the claims pursuant to the ADA and Rehabilitation Act are considered together. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (noting that as "[n]one ofthe distinctions between the two statutes is relevant here ... the District Court properly' consider[ed the] ... ADA and Rehab Act claims together"') (quoting Henrietta D. V. Bloomberg, 119 F. Supp. 181,206 (E.D.N.Y. 2000); Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) ("Because Section 504 of the Rehabilitation Act and the ADA impose identical requirements, we consider these claims in tandem.").
42 U.S.C. § 12143 specifically provides that it shall be discriminatory pursuant to both the ADA and the Rehabilitation Act for:
a public entity which operates a fixed route system ... to fail to provide with respect to the operations ofits fixed route system, in accordance with this section, paratransit and other special transportation services to individuals with disabilities, ... that are sufficient to provide to such individuals a level ofservice which is comparable to the level of designated public transportation services provided to individuals without disabilities using such system .... 42 U.S.C. § 12143(a)(I). Pursuant to 42 U.S.C. § 12143(b), the Secretary of Transportation (the "Secretary") was directed to promulgate regulations governing the implementation and operation of a paratransit service. See 49 C.F.R. § 37.121 et seq. Several ofthe Secretary's regulations are of particular relevance here. First, the Secretary has established standards for determining the service areas in which paratransit services are required pursuant to the ADA (the "ADA Service Area"). See 49 C.F.R. § 37.131. Entities providing bus transportation "shall provide complementary paratransit service to origins and destinations within corridors with a width ofthree-fourths ofa mile on each side ofeach
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fixed route. The corridor shall include an area with a three-fourths of a mile radius at the ends of
each fixed route." Id. § 37.1 3I(a)(l)(i). Moreover, "the entity also shall provide service to small
areas not inside any of the corridors but which are surrounded by corridors." Id. § 37.13 I(a)(1)(ii).
Entities may, but are not required to, provide additional paratransit services beyond those required
by the Secretary's Regulations. See id. § 37.131 (g).
The Secretary has also promulgated regulations concerning the development and submission
of paratransit plans. See 49 C.F.R. §§ 37.135, 37.137. In developing its initial paratransit plan, an
entity must ensure, at a minimum, that the following public participation procedures are utilized:
(I) Outreach. Each submitting entity shall solicit participation in the development of its plan by the widest range ofpersons anticipated to use its paratransit service. Each entity shall develop contacts, mailing lists and other appropriate means for notification ofopportunities to participate in the development ofthe paratransit plan;
(2) Consultation with individuals with disabilities. Each entity shall contact individuals with disabilities and groups representing them in the community. Consultation shall begin at an early stage in the plan development and should involve persons with disabilities in all phases ofplan development. All documents and other information concerning the planning procedure and the provision ofservice shall be available, upon request, to members ofthe public, except where disclosure would be an unwarranted invasion of personal privacy;
(3) Opportunity for public comment. The submitting entity shall make its plan available for review before the plan is finalized. In making the plan available for public review, the entity shall ensure that the plan is available upon request in accessible formats;
(4) Public hearing. The entity shall sponsor at a minimum one public hearing and shall provide adequate notice of the hearing, including advertisement in appropriate media, such as newspapers of general and special interest circulation and radio announcements ...
49 C.F.R. § 37. I37(b)(l)-(4). The entity must also permit the participation of people with
disabilities in the ongoing development and assessment of paratransit services. Id. § 37.137(c).
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Following submission and implementation of its initial plan pursuant to 49 C.F.R. § 37.135(b), an entity must submit annual updates to its plan advising the Federal Transportation Authority (the "FTA") of any problems or financial burdens the entity is experiencing with plan compliance. 49 C.F. R. § 37. I35(c)(2)-(3). However, if"an entity has met and is continuing to meet all requirements for complementary paratransit . . . , the entity may submit to FTA an annual certification of continued compliance in lieu of a plan update.... The [public participation] requirements of §§ 37.137 (a) and (b) ... do not apply when a certification is submitted." 49 C.F. R. § 37.135(c)(l).
III. Defendant's Motion to Dismiss
A. Legal Standard
The standard ofreview on a motion made pursuantto RuIes 12(b)(6) and l2(c) ofthe Federal Rules of Civil Procedure is that a plaintiff plead sufficient facts "to state a claim for relief that is plausible on its face." Bell Atlantic Com. v. Twomblv, 550 U.S. 544,127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). See also Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (noting that the same standard as applicable to amotion to dismiss under Rule 12(b)(6) is employed for a motion to dismiss pursuant to Rule 12(b)(6). The pleading of specific facts is not required; rather a complaint need only give the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89,127 S. Ct. 2197, 2200,167 L. Ed.2d 1081 (2007). See also Boykin v. KeyCom, 521 F. 3d 202, 214 (2d Cir. 2008). "A pleading that offers 'labels and
6

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 7 of 13
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 127 S. Ct.1955). "Nor does a complaint suffice if it tenders 'naked assertion[s], devoid of further factual enhancement. '" Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 127 S. Ct. at 1959. The plausibility standard requires "more than a sheer possibility that defendant has acted unlawfully." Iqbal, --- U.S. m_, 129 S. Ct. at 1949.
In deciding a motion pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Goldstein v. Pataki, 516 F.3d 50,56 (2d Cir. 2008), cert. denied, 128 S. Ct. 2964, 171 L. Ed.2d 906 (2008) (quoting Chambers v. Time Warner, Inc., 282 F. 3d 147, 152 (2d Cir. 2002)). However, [tJhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, ---U.S. ----, 129 S. Ct. at 1949. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 1950.
In determining a motion to dismiss, the Court must limit itself to the facts alleged in the complaint, which are accepted as true; to any documents attached to the complaint as exhibits or incorporated by reference therein; to matters of which judicial notice may be taken; or to documents upon the terms and effect of which the complaint "relies heavily" and which are, thus, rendered "integral" to the complaint. Chambers, 282 F. 3d at 152-53.
7

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 8 of 13
B. Analysis
1. Public Participation Claim
Plaintiffs' Complaint alleges that "in changing the paratransit policy, the defendant did not consult plaintiffs or any other people with disabilities in Nassau County who use the Able-Ride system ... ," thereby violating 49 C.F .R. § 37.l37(b). (Comp\., at ~ 68.) Defendant contends that Plaintiffs' Complaint should be dismissed because "the ADA does not confer on these plaintiffs a private right of action to enforce the paratransit plan development regulation." (Defendant's Memorandum of Law ("Def. Mem."), at 6.) While Title II creates a private right of action for any person alleging discrimination upon the basis ofdisability by a public entity, see 42 U.S.C. § 12133 (providing that "the remedies, procedures, and rights set forth in section 794a ofTitle 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 ofthis title"), Plaintiffs allege a violation ofthe regulations promulgated pursuant to Title II, not Title II itself. However, the implementing regulations that the Plaintiffs seek to enforce are inapplicable to Defendant's reduction in services. Therefore, no analysis of the issue of whether the Second Circuit would permit a plaintiffto bring an action pursuant to Title II to compel compliance with the Secretary's regulations. See Telesca v. Long Island Housing Partnership. Inc., 443 F.Supp.2d 397, 406 (E.D.N.Y. 2006) (declining to "analyze the interesting issue of whether the Second Circuit would permit private individuals to bring an action under the Rehabilitation Act to compel compliance with HUD regulations" because it found the regulations inapplicable to the dispute at hand).
8

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 9 of 13
Plaintiffs allege that Defendant did not seek "the participation ofplaintiffs and other persons with disabilities into changes in the Able-Ride service policy," and as such, violated 49 C.F.R. § 31.137(b). However, the regulation at issue requires only that an "entity ... ensure public
participation in the development of its paratransit plan," as opposed to a modification. 49 C.F.R. §
31.137 (emphasis added). Nor are Plaintiffs correct in their assertion that 42 U.S.C. § 12143 and 49 C.F.R. § 31.1 37(c) require public participation in connection with each annual submission. While
49 C.F.R. § 31.137(c) directs that an entity "create an ongoing mechanism for the participation of
individuals with disabilities in the continued development and assessment ofservices to persons with
disabilities," 49 C.F.R. § 3l.l35 clarifies that "[i]f an entity has met and is continuing to meet all
requirements for complementary paratransit ... the entity may submit to FTA an annual certification ofcontinued compliance in lieu ofa plan update ... [and] [t]he [public transportation] requirements
do not apply when a certification is submitted" in lieu of a plan update. 49 C.F.R. § 3l.l35(c)(I);
31.13 7(c). As Defendant's Able-Ride service is being modified to provide the minimum paratransit
required by the ADA, (see Compl., at '\l'\l 12-13), Defendant was not required to utilize public
participation to submit its certification of compliance. See 49 C.F.R. § 37.135(c)(I). While promulgating the regulations, the Department of Transportation noted that:
[w]hile a transit authority is gradually building up its paratransit service to the point where it meets all service criteria, it is reasonable for the transit authority to send in annual progress reports that have been developed through the public participation process set forth in the rule. Once the transit authority has fully met all the service criteria, however, there is no new "progress" to report. There is no implementation to "commence," since the service required by the rule is already up and running, and need only be continued for the transit authority to meet its ADA paratransit obligations .... Because the regulation already requires a mechanism for continuing public participation (see §37.l37(c)), the Department is not persuaded that the public participation process accompanying plan updates is essential to provide public input to providers about paratransit service.
9

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 10 of 13
See Transportation for Individuals with Disabilities, 61 Fed. Reg. 25409-02 (May 21, 1996) (codified at 49 CFR Parts 37 and 38). Since Defendant maintained compliance with the ADA despite the Able-Ride service reductions, it was not required to provide a mechanism for public participation. Therefore, Plaintiffs' claim pursuant to Title II and its regulations fails, and Defendant's motion to dismiss the public participation claim is granted.
2. Disparate Impact Claim
Plaintiffs also allege that "[a]s defendant's budget cuts as a whole have a greater impact on people with disabilities than others because of their disabilities, the budget cuts which virtually eliminate paratransit service and transportation for people with disabilities in Nassau County have a disparate impact on people with disabilities as compared to non-disabled persons ...." (Comp\., at ~ 76.) To establish a prima facie case of discrimination based upon disparate impact, a plaintiff must allege: "(I) the occurrence ofcertain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565,575 (2d Cir. 2003) "Although the plaintiff need not show discriminatory intent under this theory, it must prove that the practice actually or predictably results in discrimination" as well as a "causal connection between the policy at issue and the discriminatory effect." Quad Enterprises Co., LLC v. Town of Southold, No. 09-2963-cv, 2010 WL 807946, at *2 (2d Cir. Mar. 10, 2010). Plaintiffs do not allege that Defendant has a facially neutral policy or procedure that has a disproportionate impact on disabled persons. Instead, they challenge a single action taken by Defendant: the budget cuts resulting in a
10

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 11 of 13
reduction ofAble-Ride service. (Compl., at '\I 76.) See also Reg'l Econ. Cmty. Action Program. Inc.
v. City of Middletown, 294 F.3d 35,53 (2d Cir. 2002) (denying a disparate impact claim under the FHA because plaintiff did "not challenge a facially neutral policy or practice; it challenged one specific act").
Moreover, although Plaintiffs allege that "the budget cuts as a whole ... will not wipe out service fornon-disabled people" but they "will effectively eliminate service entirely for some people with disabilities within Nassau County ... ," (Compl., at 17), "the DOT regulations implementing the ADA do not contemplate perfect service for the disabled." Boose v. Tri-County Metropolitan Transp. Dis!. of Oregon, 587 F.3d 997, 1005 (9th Cir. 2009) (quotations omitted). See also Transportation for People With Disabilities, 56 Fed.Reg. at45,601 (Sep. 6,1991) (codified at Title 49 Part 37) (noting that "complementary paratransit is not intended to be a comprehensive system
of transportation for individuals with disabilities [and 1that the ADA does not attempt to meet all
the transportation needs ofindividuals with disabilities ...."). Although paratransit service in some areas ofNassau County will be eliminated, Nassau County's disabled community will nevertheless receive the paratransit services contemplated by the ADA. (See Compl., at '\1'\112-13.) See also 49 C.F.R. § 37.131 (describing the paratransit service area). Accepting Plaintiffs argument would effectively extend the ADA's paratransit requirements to include any and all services that have ever been provided, thus penalizing Defendant for voluntarily providing additional paratransit services in the past, and discouraging other public entities from going beyond the requirements ofthe ADA. Accordingly, Defendant's motion to dismiss Plaintiffs' disparate impact claim is granted.
11

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 12 of 13 IV. Plaintiffs' Motion for a Preliminary Injunction
In order to obtain a preliminary injunction, a plaintiff must demonstrate (1) a likelihood of irreparable injury in the absence of injunctive relief; (2) either a likelihood ofsuccess on the merits, or "sufficiently serious questions going to the merits to make them a fair ground for litigation" and a balance ofhardships tipping decidedly in the plaintiffs favor. Malletier v. Burlington Coat Factory Warehouse Com., 426 F.3d 532,537 (2d Cir. 2005); Sunward Electronics. Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004). When a party "seeks a preliminary injunction that will affect 'government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only ifthe moving party meets the more rigorous likelihood-of-success standard.'" Wright v. Giuliani, 230 F.3d 543,547 (2d Cir. 2000) (quoting Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999)). In light of my determination that Plaintiffs have failed to state a claim upon which reliefcan be granted, Plaintiffs cannot demonstrate a likelihood ofsuccess on the merits. Accordingly, Plaintiffs' motion for a preliminary injunctioh is denied.
12

Case 2:10-cv-01535-SJF -ARL Document 26 Filed 05/25/10 Page 13 of 13 IV. Conclusion
For the foregoing reasons, Plaintiffs' motion for a preliminary injunction is denied, and Defendant's motion to dismiss the Complaint is granted. The Clerk ofthe Court is directed to close this case.
Dated: May 25, 2010 Central Islip, New York
l3

 
 Case 2:10-cv-01535-SJF -ARL Document 34 Filed 06/18/10 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------)(
DANNY ABRAHAMS, ANTHONY CELARDO, KEVIN CHRISTMAN, LAUREN EPSTEIN, MERYL JACKELOW, EVAN SKIDMORE, DAVID TINDAL and LEE WOLBROM,

Plaintiffs

-against-

DOCKET NO. 10-1535 (SJF) (AJL)

MTA LONG ISLAND BUS,

Defendant

--------------------------------------------------------------)(

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF APPLICATION TO VACATE PREVIOUS ORDER OF THIS COURT.

MORITT HOCK HAMROFF & HOROWITZ LLP Attorneys for Plaintiffs-Appellants 400 Garden City Plaza Garden City, New York 11530 (516) 873-2000

Case 2:10-cv-01535-SJF -ARL Document 34 Filed 06/18/10 Page 2 of 5
TABLE OF CONTENTS Introductory Statement. ......................................................................... .1 ARGUMENT-
THIS COURT OVERLOOKED THE LANGUAGE OF THE PARATRANSIT REGULATIONS IN REACHING ITS DECISION ................................................................................ 1 Conclusion.. ........................................................................................3

Case 2:10-cv-01535-SJF -ARL Document 34 Filed 06/18/10 Page 3 of 5
INTRODUCTORY STATEMENT
This application is made seeking to vacate the order ofthis Court dated May 25,2010 and entered on May 26,2010 that dismissed this complaint and denied plaintiffs' motion for a preliminary injunction. The application is made because the Court overlooked some of the language of the relevant regulations pertaining to this case. Had the Court not overlooked that language, it would have found that the regulations were applicable to the circumstances presented here.
ARGUMENT THIS COURT OVERLOOKED THE LANGUAGE OF THE PARATRANSIT REGULATIONS IN REACHING ITS DECISION. The dispute in this action centers around the question of whether a particular regulation promulgated under the paratransit section of the ADA applies to the circumstances involved here. Defendant argued, and this Court held, that the regulation is inapplicable because the defendant's paratransit services are otherwise purportedly compliant with the ADA. However, both the defendant and this Court overlooked key language of the regulation which indicates that it is clearly applicable to the facts here regardless of whether the defendant's paratransit services are otherwise purportedly compliant with the ADA. The two relevant regulations are as follows: 49 C.F.R. §37.135(c)(1) states as follows: (I) If an entity has met and is continuing to meet all requirements for complementary paratransit in §§37.121-37.133 of this part, the entity may submit to FTA an annual certification of continued compliance in lieu of a plan update. Entities that have submitted a joint plan under §37.141 may submit a joint certification under this paragraph. The requirements of §§37.137(a) and (b), 37.138 and 37.139 do not apply when a certification is submitted under this paragraph. (Emphasis Added)
1

Case 2:10-cv-01535-SJF -ARL Document 34 Filed 06/18/10 Page 4 of 5
49 C.F.R. §37.137(c) states as follows: (c) Ongoing requirement. The entity shall create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. This includes, but is not limited to, the development of the initial plan, any request for an undue financial burden waiver, and each annual submission. As there is no dispute that since defendant-appellee appears to be in compliance with the requirements for complementary paratransit of §§37.121-37.133, 49 C.F.R. §37.137(a) and (b) are clearly not applicable here based upon 49 C.F.R. §37.135(c)(1). However, 49 C.F.R. §37.135(c)(l) clearly omits reference to the next subsection of the regulation, 49 C.F.R. §37.137(c) which requires that the defendant-appellee "create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities." That regulation by its terms not only includes the development of the initial plan and each annual submission, it also covers "assessment of services" and "requests for undue financial burden waivers" and "is not limited to" the above-mentioned areas. Therefore, 49 C.F.R. §37.135(c)(1) only gives the defendant an exemption from 49 C.F.R. §§37.137(a) and (b) and does not give the defendant an exemption from 49 C.F.R. §37.137(c). Both this Court and the defendant overlooked the clear language of 49 C.F.R. §37.135(c)(1) stating that the exemption only covered 37. 137(a) and (b) and not (c). The elimination ofparatransit services in an entire area of Nassau County certainly implicates the requirement for the participation of individuals with disabilities in the continued development and assessment of services under 49 C.F.R. §37.137(c). Since that participation was not sought by the defendant and since such participation was not exempted by the regulations merely because the defendant may be otherwise in compliance with the ADA, this
2

Case 2:10-cv-01535-SJF -ARL Document 34 Filed 06/18/10 Page 5 of 5

Court should reconsider its order and decision and hold that the relevant regulation is applicable here.
Finally, the statement of the Department of Transportation cited at pages 9-10 of this Court's order is not contrary to plaintiffs' arguments and indeed supports plaintiffs' arguments. That statement appears only to pertain to 37. 137(a) and (b) and specifically notes that "Because the regulation already requires a mechanism for continuing public participation (see §37.137(c)), the Department is not persuaded that the public participation process accompanying plan updates is essential to provide public input to providers about paratransit service."
CONCLUSION It is respectfully requested that this Court vacate its previous order and grant a preliminary injunction, and deny the defendant's motion to dismiss. Dated: Garden City, New York
May 28, 2010

MORITT HOCK HAMROFF & HOROWITZ

Attorneys for Plaintiffs

B y:

~l

D

III , ';

I
Il

------~L~{l,,~J4ljt~ ____ _

ROBERT L. SCHONFELD (RS7777)

3

 
 7 / F Case 2:10-cv-01535-SJF -ARL Document 36 Filed 03/21/11 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------)( DANNY ABRAHAMS, ANTHONY CELARDO, KEVIN CHRISTMAN, LAUREN EPSTEIN, MERYL JACKELOW, EVAN SKIDMORE, DAVID TINDAL, and LEE WOLBROM,
Plaintiffs,
-against-
MTA LONG ISLAND BUS, Defendant.
------------------------------------------------------------)( FEUERSTEIN, J.

ORDER lO-CV-1535 (SJF) (ARL)

On April 7, 2010, plaintiffs Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, and Lee Wolbrom (collectively, "Plaintiffs") commenced this action against defendant MTA Long Island Bus ("Defendant"), asserting violations of, inter alia, the Americans with Disabilities Act of 1990,42 U.S.c. § 12101, et seq. ("ADA"). On April 9, 2010, Plaintiffs moved for a preliminary injunction, and a Temporary Restraining Order ("TRO") was issued "enjoining Defendant from implementing changes in its paratransit policy" until April 27, 2010. See DE 7. On April 28, 2010, the TRO was continued for thirty (30) days until May 27,2010. See DE 20. On May 25,2010, this Court entered an Order denying Plaintiffs' motion for a preliminary injunction and dismissing Plaintiffs' Complaint (the "May 25th Order"). See DE 16. Plaintiffs filed a notice of appeal of the May 25th Order on May 26, 2010. See DE 29. On May 27, 2010, the Second Circuit issued a mandate denying Plaintiffs' emergency motion for a temporary restraining order and indicating that the appeal would be decided "in due course." See DE 31.

Case 2:10-cv-01535-SJF -ARL Document 36 Filed 03/21/11 Page 2 of 2
On June 18,2010, Plaintiffs filed a motion to vacate the May 25th Order pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. Plaintiffs filed a letter indicating that Defendant would not be filing opposition papers because "in his view, the case is closed with this Court." See DE32.
By filing a notice of appeal, Plaintiffs divested this Court of jurisdiction to grant a motion to modify or vacate a judgment without consent of the Second Circuit. See Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (a district court may deny a Rule 60 motion pending appeal, but may not grant the motion without consent); see also Fed R. Civ. P. 60(a). As there is no indication that consent has been granted, Plaintiffs' motion is denied without prejudice.
SO ORDERED.

Dated: March 21, 2011 Central Islip, New York

SANDRA J. F6(JERSTEIN UNITED STATES DISTRICT JUDGE

2

 
 Case: 10-2058 Document: 101 Page: 1 08/16/2010 89160 17

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

.........................................................

X

DANNY .ABRAHAMS, ANTHONY

CELARDO, KEVIN CHRISTMAN,

LAUREN EPSTEIN, MERYL JACKELOW,

EVAN SKIDMORE, DAVID TINDAL and

LEE WOLBROM,

Plaintiffs-Appellants

MTA LONG ISLAND BUS,

Defendant-Appellee

.......................................................

X

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS IN AN APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MORITT HOCK HAMROFF. & HOROWITZ LLP
Attorneys for Plaintiffs-Appellants 400 Garden City Plaza, Suite 202 Garden City, New York 11530 (5 16) 873-2000

Case: 10-2058 Document: 101 Page: 2 08/16/2010 89160 17

Case: 10-2058 Document: 101 Page: 3 08/16/2010 89160 17
TABLE OF CONTENTS Introduction. .................................................................5 POINT I-
THE DISTRICT COURT ERRED IN HOLDING
THAT THE PUBLIC PARTICIPATION
REQUIREMENTS WERE INAPPLICABLE HERE.. .......7
POINT 11- PLAINTIFFS HAVE DEMONSTRATED A CLEAR LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM AND ARE ENTITLED TO A PRELIMINARY INJUNCTION. .......................10
CONCLUSION.. ..........................................................15

Case: 10-2058 Document: 101 Page: 4 08/16/2010 89160 17
TABLE OF AUTHORITIES Table of Cases Anderson v. Rochester-Genesee Regional Transportation
Authority, 337 F.3d 201 (2d Cir. 2003). ............................... I 1
Starnm v. New York City Transit Authority, 2006 WL 1027142
(E.D.N.Y. 2006). ............................................................ l l
Table of Statutes and Regulations
42 U.S.C. 512143.................................................................apssim
49 C.F.R. 537.135.......................................................................8. 49 C.F.R. 537.137..............................................................passim

Case: 10-2058 Document: 101 Page: 5 08/16/2010 89160 17
INTRODUCTION To quote the classic movie line, "what we have here is a failure to communicate." By failing to communicate with Nassau County people with disabilities about reductions in the transportation services they have relied upon for years, defendant MTA Long Island Bus acted in violation of Title I1 of the Americans With Disabilities Act ("ADA") and its accompanying regulations. For the most part, the facts in this case are not in dispute. Defendant MTA Long Island Bus has provided an extensive paratransit system throughout Nassau County known as "Able-Ride" for many years. People with disabilities like the plaintiffs in this case have depended upon that system and have made life decisions such as where to live, where to work, and where to receive medical services based upon the Able-Ride system. Due to fiscal shortfalls, defendant MTA Long Island Bus now seek to reduce the system by eliminating 9% of the paratransit service throughout Nassau County and 100% of the service for people with disabilities in the northeastern section of Nassau County. At ECF p. 16 of its brief, MTA Long Island Bus concedes that the contraction of the system will cause hardship for people with disabilities. W l e MTA Long Island Bus can implement service reductions to the nonmandatory portion of the system, that action is not the issue in this case and plaintiffs do not dispute that defendant can ultimately reduce service. Much of

Case: 10-2058 Document: 101 Page: 6 08/16/2010 89160 17
defendant's brief is addressed at defending MTA's right to implement service reductions in non-mandatory service - an issue not raised by plaintiffs.
However, defendant fails to address plaintiffs' principal argument - that the paratransit section of Title I1 of the ADA and its regulations require MTA Long Island Bus to create a mechanism to permit people with disabilities to participate in the continued development and assessment of paratransit services. Even though the defendant may have the right to reduce paratransit services to the minimum required by the ADA, defendant must before making such cuts at least listen to people with disabilities and their advocates who may have suggestions as to how the defendant can meet its budgetary shortfalls without eviscerating the system for some riders.
Instead of seeking to listen to people with disabilities and their advocates, defendant MTA Long Island Bus has done the opposite. It has gone out of its way to avoid listening to people with disabilities and even now is fighting the attempts of people with disabilities to have their suggestions heard.
Under the paratransit section of the ADA and its regulations, a failure to communicate with people with disabilities is just as much of a violation of the law as direct discrimination in the provision of services. In failing to follow the paratransit section of the ADA and its regulations pertaining to communication with people with disabilities, defendant MTA Long Island Bus has violated the

Case: 10-2058 Document: 101 Page: 7 08/16/2010 89160 17
ADA and its regulations just as much as if it had engaged in discrimination in the actual provision of services.
POINT I THE DISTRICT COURT ERRED IN HOLDING THAT THE PUBLIC PARTICIPATION REQUIREMENTS WERE INAPPLICABLE HERE. This case turns on a reading of 49 C.F.R. §37.137(c),which places an ongoing requirement on entities like the defendant to "create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities." [Emphasis added]. The defendant's decision to eliminate some paratransit services would constitute both the "continued development" and "assessment" of services, necessitating the need for participation of individuals in the decision. The fact that the services being eliminated are not mandated by the ADA is not material. The regulation requiring public participation contains no language excluding service reductions in non-mandatory services. Both the district court and the defendant erroneously read the word "assessment" out of the regulation (J.A. 206), and the district court's decision is in error because, at the very least, it overlooked the word "assessment." In any event, the defendant's change in service would also fall under the "continued

Case: 10-2058 Document: 101 Page: 8 08/16/2010 89160 17
development" section of the regulation, requiring participation of individuals with disabilities.
As discussed at page 23 of our initial brief, the district court also erred in holding that because the defendant was otherwise in compliance with the ADA, it was exempt from the provisions of 49 C.F.R. 937.137(c). As discussed previously, the regulation relied upon by the lower court, 49 C.F.R. 937.135(c)(l) (J.A. 206), provides an exemption from the provisions of §937.137(a) and (b) but omits any mention of 49 C.F.R. §37.137(c).' Wisely, the defendant in its brief does not attempt to defend the district court's holding in this regard.
The defendant makes two other arguments: (a) there was an "agreement" between the defendant, Nassau County and the Federal Transit Administration of the United States Department of Transportation allowing it to eliminate paratransit services as proposed here without public participation (J.A. 126-34) and (b) that a Department of Transportation statement relied upon by the district court (J.A. 206-
As both parties would agree, defendant is only required to provide paratransit servicesunder the standards set by the ADA and there is no allegation here that the defendant's proposed cuts would place it out of compliance with the ADA. However, if defendant were not in compliance with those standards, logically, a lawsuit would not be brought under the "public participation" regulation asserted here but instead as a discrimination claim on the merits on the ground that services were not provided in accordance with the standards of the ADA. Therefore, the "public participation" regulation would really only have vitality in a situation such as here where the provider proposed changes in service but those service changes would not place the provider out of compliance with the ADA.

Case: 10-2058 Document: 101 Page: 9 08/16/2010 89160 17
07) justifies the elimination of paratransit services as proposed here without public participation. Both of those arguments are wrong.
The 1998 "agreement" referred to by the defendant was apparently unsigned by any representatives of the Federal Transit Administration. The purported agreement merely restates the law and does not place any special requirements on the defendant. The purported agreement contains no provisions authorizing the defendant to eliminate paratransit service to a large section of Nassau County or immunizing the defendant from the public participation requirements of the paratransit statute and accompanying regulations in such event.
With regard to the district court and defendant's citation to the statement of the Department of Transportation, as discussed at page 23 of plaintiffs' initial brief, that statement appears only to pertain to §537.137(a) and @) and specifically notes that "because the regulation already contains a mechanism for continuing
public participation (see 537.137(c))..." Therefore, the Department of
Transportation statement inaptly cited by both the district court and the defendant explicitly recognizes the applicability of 537.137(c).
Consequently, the district court erred in dismissing plaintiffs' action on the ground that the public participation requirement of 537.137(c) was not applicable here.

Case: 10-2058 Document: 101 Page: 10 08/16/2010 89160 17
POINT I1
PLAINTIFFS HAVE DEMONSTRATED A CLEAR LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM AND ARE ENTITLED TO A PRELIMINARY INJUNCTION.
Defendant does not argue that plaintiffs have failed to demonstrate
irreparable harm from its actions. As plaintiffs demonstrated a likelihood of
success on the merit^,^ the district court erred in not granting a preliminary
injunction.
There are three areas of legal contention between the parties in this case.
The first issue, whether 49 C.F.R. §37.137(c)is applicable here (and the only issue
ruled upon by the district court) is addressed in the previous point. This point will
address the other two areas of contention: whether the plaintiffs have a private
cause of action under the paratransit portion of Title I1 of the ADA (42 U.S.C.
5 12143) and its accompanying regulations and whether the defendant indeed
violated the "public participation" regulation, to wit, 49 C.F.R. §37.137(c).
The plaintiffs extensively addressed the "private cause of action" issue at
pages 24-3 1 of their initial brief and those arguments need not be repeated here.
The district court used the correct "likelihood of success" standard. (J.A. 209). While defendant argues at ECF page 30 of its brief that the standard is "clear likelihood of success" standard, as defendant notes, that standard is only application where a plaintiff seeks to overturn the status quo. In this case, plaintiffs are seeking to keep the status quo and it is defendant that is seeking to change the status quo. In any event, plaintiff can meet either the "likelihood of success" or "clear likelihood of success" standard here.

Case: 10-2058 Document: 101 Page: 11 08/16/2010 89160 17
Defendant largely ignored plaintiffs arguments and, at ECF pages 25-28 of its brief, cited four cases from other jurisdictions involving other statutes and regulations. All of those cases are inapplicable.
None of the statutes involved in those cases contained provisions like that of
42 U.S.C. 5 12143(e)(l) stating that a violation of the regulations adopted pursuant
to the statute constituted privately actionable discrimination. Similarly, none of the regulations involved in those cases merely applied or authoritatively construed a statute as is the case with the regulation at issue here. See Starnm v. New York
City Transit Authority, 2006 WL 1027142 * 12 (E.D.N.Y. 2006) (district court
found a private right of action because the transportation regulations involved under 49 C.F.R. Part 37 of which the regulation at issue here is a part "do no more than apply or interpret the provisions of Title I1 of the ADA.")
As also discussed at pages 30-31 of our initial brief, in Anderson v. Rochester-Genesee Regional Transportation Authority, 337 F.3d 201 (2d Cir. 2003), this Court implicitly found a private right of action to enforce the "customer
service" regulations connected to 42 U.S.C. 5 12143. As discussed at length in our
initial brief and not challenged by the defendant in its brief, under 42 U.S.C. €J12143, the "public participation7'discrimination involved here should be treated no differently from the "customer service" regulations as violations of the "public participation" portions of the paratransit statute constitute "discrimination" just as

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much as violations of the "customer service" portions of the paratransit statute. Compare 42 U.S.C. §12143(e)(l) to 42 U.S.C. §12143(a). Consequently, as the "public participation" regulations involved here should be treated no differently from "customer service" regulations and this Court has already implicitly held that there is a private right of action to enforce the "customer service" regulations, there is likewise a private right of action to enforce the "public participation" regulations
connected to 42 U.S.C. 5 12143 at issue here.
At ECF pages 28-29 of its brief, defendant MTA Long Island Bus makes the curious arguments that plaintiffs' request for public participation "would as a practical matter discourage transit entities from ever voluntarily providing an enhanced level of service beyond what the ADA specifically requires" and that "transit entities would likely not offer any voluntary service enhancement if they understood that to do so would obligate them for all time."
Besides not being supported by the law, those statements represent a complete misunderstanding of plaintiffs' argument. Plaintiffs' position is not that they have a right to force defendant to provide services above the minimum standards set by the ADA, but that defendant must communicate with plaintiffs and people with disabilities prior to eliminating services even if the proposed cuts would leave the remaining system in compliance with the ADA.

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In sum, the defendant here is addressing an argument not made by plaintiffs and fails to address the plaintiffs' argument that they are entitled to some form of communication under the circumstances involved here. Indeed, since it is conceded that defendant can eliminate non-mandatory paratransit services, the enforcement of the legal requirement that paratransit ridersihip have an opportunity to provide input and suggestions to defendant MTA Long Island Bus before cuts are implemented is even more important since the provision of such input is essentially the only right conferred upon paratransit ridership with respect to these cuts.3
Finally, the defendant's brief has no specific point disputing the arguments made at pages 31-34 of plaintiffs' initial brief that defendant's actions violated 49 C.F.R. $37.137(c). While defendant outlines the steps it took at ECF pages 16-18 of its brief, those steps hardly constituted "public participation" by people with disabilities.
The defendant first notes at ECF page 16 of its brief that a memorandum outlining the service changes "was provided to Long Island Committee members of the MTA Board." However, provision of a memorandum to the Long Island
Indeed, an advocate for people with disabilities made some suggestionson costcutting without the elimination of services that was ignored by defendant. J.A. 100-01.

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Committee members of the MTA Board hardly constitutes public participation by people with disabilities.
While the defendant goes on to discuss its communications with the Accessible Transportation Oversight Committee (a committee comprised of people with disabilities) at meetings on January 12,2010 and March 9, 2010, the unrebutted record indicates that the details of the service eliminations were not discussed at the January 12,2010 meeting (J.A. 68, 102-03) and that the service eliminations were already a fait accompli at the March 9,2010 meeting that was held one day before notification of the cuts was given to Able-Ride users. J.A. 103.
While the defendant notes at ECF page 17 of its brief that there was a public hearing held on March 1,2010, defendant ignored the fact that the notice for the hearing stated that the Able-Ride changes "do not require public hearing" (J.A. 70) and thus people with disabilities were led to believe that Able-Ride was not a subject of discussion at the hearing. J.A. 103 As discussed at length at pages 1518 of plaintiffs' initial brief, the notice of the hearing given by the defendant was vague, did not inform people with disabilities of the specific cuts proposed in Able-Ride service, and required people with disabilities to go to a library to read and comprehend the ADA and its regulations and then consult a bus map in order to determine if their service was being eliminated.

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Finally, the public information meeting held by the defendant on April 22, 20 10 discussed at ECF pages 17-18 of its brief was exactly that - a public information meeting to describe the reductions in service. By April 22, 2010, defendant had already determined that it was going to implement its service eliminations and held the meeting to provide the public with information about the cuts rather than to listen to people with disabilities and their advocates about possible alternatives before a decision was made.
Consequently, besides irreparable harm, plaintiffs have demonstrated (a) that the "public participation" regulation connected to the paratransit part of Title I1 of the ADA is applicable here, (b) that plaintiffs have a private cause of action to enforce the "public participation" regulation and (c) the defendant totally failed to comply with that regulation and did everything possible to avoid communication with people with disabilities with regard to its service eliminations. Therefore, as plaintiffs have demonstrated either a likelihood of success or a clear likelihood of success on the merits as well as irreparable harm, the court below erred in denying plaintiffs a preliminary injunction.
CONCLUSION The order of the district court dismissing this action and denying plaintiffs' application for a preliminary injunction should be reversed and plaintiffs' application for a preliminary injunction should be granted.

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Dated: Garden City, New York August 16,2010
MORITT HOCK HAMROFF & HOROWITZ LLP Attorneys for Plaintiffs-Appellmts

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Federal Rules of Appellate Procedure Form 6 Certificate of Compliance with Rule 32 (a)
Certificate of Compliance With Type-Volume Limitation Typeface Requirements and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R.App.P. 32(a)(7)(B) because this brief contains'2311 words, excluding the parts of the brief exempted by Fed. R. App.P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed. R.App.P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 inflimes New Roman, 14 points.
Attorney for ~ l a i n t i f f s ! ~ ~ ~ e l l a n t s Dated: August 16, 20 10

 
 Case: 10-2058 Document: 90 Page: 1 07/26/2010 75691 36

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

.........................................................

X

DANNY ABRAHAMS, ANTHONY

CELARDO, KEVIN CHRISTMAN,

LAUREN EPSTEIN, MERYL JACKELOW,

EVAN SKIDMORE, DAVID TINDAL and

LEE WOLBROM,

Plaintiffs-Appellants

MTA LONG ISLAND BUS,

Defendant- Appellee

..................................................................

X

BRIEF FOR PLAINTIFFS-APPELLANTS IN AN APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK

MORITT HOCK HAMROFF & HOROWITZ LLP
Attorneys for Plaintiffs-Appellants 400 Garden City Plaza, Suite 202 Garden City, New York 11530 (5 16) 873-2000

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TABLE OF CONTENTS
Jurisdictional Statement..................................................7.
Statement of Issues Presented for Review..............................7
Statement of the Case......................................................8
Relevant Statutes and Regulations......................................10
I. The Americans With Disabilities Act...................10 A. Introduction.............................................10
B. General Provisions of Title I1 of the ADA.........11 C. Paratransit Services and Title I1 of the ADA......12 D. Paratransit Regulations Enacted Pursuant to
42 U.S.C. 512143.....................................14
Facts ........................................................................14 I. Introduction .................................................14 TI. Accessible Transportation Oversight Committee (ATOC) January Meeting.................................15 I11. Notice of the Public Hearing.............................. 15 IV. The Public Hearing........................................ 18 V. ATODC meeting held the day before paratransit cuts are announced and the March 10, 20 10 notice
to Able-Ride users........................................1.9 VI. The April 22, 2010 Public Information Session.......20
Summary of Argument ................................................... 21
POINT I- THE DISTRICT COURT ERRED IN HOLDING THAT THE PUBLIC PARTICIPATION REQUIREMENTS WERE INAPPLICABLE HERE ...22
POINT II- PLAINTIFFS HAVE DEMONSTRATED A CLEAR LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM AND ARE ENTITLED TO A PRELIMINARY INJUNCTION ...24
A. Introduction ................................................... 24

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B. Plaintiffs have a Private Cause of Action.. .............24 C. Defendant violated the "public participation"
Regulation. ..................................................3 1 Conclusion...............................................................35

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TABLE OF AUTHOFUTIES
Table of Cases
Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004). ..............................................25
Alexander v. Sandoval, 532 U.S. 275 (2001). ..................................25
Anderson v. Rochester-Genesee Regional Transportation Authority, 337 F.3d 20 1 (2d Cir. 2003). ............................27,30
Barnes v. Gorrnan, 536 U.S. 181 (2002). .................................12, 27
Disability Rights Council v. Washington Metropolitan Area Transit Authority, 239 F.R.D. 9 (D.D.C. 2006). ................ .27
Henrietta D. v. Bloomberg, 331 F.3d 26 1 (2d Cir. 2003). ....................1I
Hertz Corp. v. Friend, U.S.-3 130 S.Ct. 1181 (2010).
Iverson v. City of Boston, 452 F.3d 94 (1' Cir. 2006). ...................... .25
Keiman v. Utah Transit Authority, 339 F.3d 1217 (1othCir. 2003). ....... .24
Liberty Resources, Inc. v. Southeastern Pennsylvania Transportation Authority, 155 F.Supp.2d 242 (E.D. Pa. 200 1)......27
Loeffler v. Staten Island University Hospital, 582 F.3d 268 (2d Cir. 2009). ............................................................ . . I 1
Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F.Supp.2d 1362 (N.D. Ga. 2002). ....................................27
McDaniel v. County of Schenectady, 595 F.3d 4 11 (2d Cir. 20 10)..........22
Padmore v. Holder, -F.3d-, 20 10 WL 2365863 (2d Cir. 20 10)............22
Starnrn v. New York City Transit Authority, 2006 WL 1027142 (E.D.N.Y. 2006).................................................... 25, 26,27

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Table of Statutes and Regulations 28 U.S.C. $1291.......................................................................7 28 U.S.C. $1292........................................................................7 29 U.S.C. $794a.........................................................7, 12, 26, 28 42 U.S.C. $2000d....................................................7, 12,26,27, 28 42 U.S.C. 512101 .....................................................................11 42 U.S.C. $12132...........................................................11, 26, 28 42 U.S.C. $12133.............................................................. 7, 13, 28 42 U.S.C. $12143.......................................................................
49 C.F.R. $37.1...................................................................... 26 49 C.F.R. $37.135............................................................ 10, 14, 23 49 C.F.R. $37.137....................................................................

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JURISDICTIONAL STATEMENT This action was commenced pursuant to Title I1 of the Americans With Disabilities Act ("ADA") on the ground that the defendant failed to follow the "public participation" requirements of the section of Title I1 pertaining to
paratransit services (42 U.S.C. 5 12143) and the accompanying regulations (49 C.F.R. 537.137) in eliminating a substantial portion of paratransit services in
Nassau County. Consequently, the district court had subject matter jurisdiction over t h s action. 42 U.S.C. $12133; 29 U.S.C. 5794b; 42 U.S.C. $2000-d. As the district court dismissed this action and denied an application for a preliminary
injunction, this Court has jurisdiction over the appeal. 28 U.S.C. $9 1291,
1292(a)(l). The order of the district court was entered on May 26,2010 and the notice of appeal was filed on the same day. As the district court dismissed this action and denied an application for a preliminary injunction, this appeal is from a final order of the district court.
STATEMENT OF ISSUES PRESENTED FOR REVIEW In dismissing this action and denying an application for a preliminary injunction, did the district court commit an error of law by misreading the regulations relevant to the "public participation" requirements under the ADA pertaining to paratransit service and holding that the requirements did not apply where defendant was eliminating a substantial portion of paratransit service?

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Assuming that the district court did commit such error, were plaintiffs entitled to a preliminary injunction inasmuch as they demonstrated irreparable harm and that defendant violated the bbpublipcarticipation" portion of the ADA and accompanying regulations pertaining to paratransit services?
STATEMENT OF THE CASE As stated in the affidavit of Thomas J. Charles, the defendant's Vice President of the Paratransit Division, defendant proposed to eliminate 9% of the Able-Ride paratransit service in Nassau County. Joint Appendix ("J.A.") 142, 193. The defendant's plans would concededly eliminate 100% of Able-Ride service in certain areas of Nassau County. Mr. Charles conceded in his affidavit
that "it was . . . recognized that the service changes would create hardship for
Able-Ride customers who live and work in the affected areas." J.A. 143. Plaintiffs commenced this action challenging the defendant's unilateral
decision to eliminate 9% of its Able-Ride service (and 100% of Able-Ride service in certain areas) and create a hardship for the affected Able-Ride customers as being violative of the section of Title I1 of the ADA that governs paratransit
services (42 U.S.C. 8 12143) and the regulations issued pursuant to that section.
J.A. 13-23. In particular, this action demonstrated that defendant violated the section of the ADA that governs paratransit services and the regulations issued pursuant to that section that require "public participation" with regard to changes

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in paratransit service. See 42 U.S.C. 9 12143(c)(6)and (7) and 49 C.F.R.
937.137(c) (regulation issued based on that statute). Plaintiffs sought a preliminary injunction and were initially granted a
temporary restraining order. J.A. 48-49. The defendant opposed the motion for a preliminary injunction and moved to dismiss this action. J.A. 105-193. The defendant's motion to dismiss this action was made on two grounds: (a) plaintiffs allegedly do not have a private right of action based upon the regulations issued pursuant to 42 U.S.C. fj12143 and (b) that even if the plaintiffs have a private right of action, the statute and the regulations issued under that statute purportedly do not apply to the circumstances involved here. Plaintiffs opposed the motion to dismiss.
The United States District Court for the Eastern District of New York (Sandra J. Feuerstein, J.) dismissed this action and denied the application for a preliminary injunction. J.A. 198-210. The district court did not decide the issue of whether plaintiffs have a private right of action and did not consider whether the defendant's actions violated the ADA and its regulations. Rather, the district court held that the "public participation" regulations only applied to the "development" of paratransit services and not changes in those services and that those regulations did not apply because the defendant was otherwise in compliance with the ADA. J.A. 206.

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Plaintiffs appeal here from the order of the district court. J.A. 214. Under the clear language of 49 C.F.R. §37.137(c), there is an ongoing public participation requirement with regard to "the continued development and assessment of services to persons with disabilities." Moreover, while 49 C.F.R. 537.135(~)(1s)tates that an entity like defendant is immune from the public participation requirements of 49 C.F.R. §37.137(a) and (b) if it is otherwise compliant with the ADA, that regulation does not grant to immunity to defendant from the requirements of 49 C.F.R. §37.137(c). Consequently, the district court erred in holding that 49 C.F.R. §37.137(c) was inapplicable here.
With regard to the other issues, plaintiffs have a private right of action under 49 C.F.R. §37.137(c) and the defendant's actions with regard to the elimination of paratransit service violated that regulation. Consequently, the district court erred in dismissing this action and plaintiffs demonstrated a likelihood of success on the merits. As defendant did not contest plaintiffs' argument that they would suffer irreparable harm, the district court erred in denying a preliminary injunction.
RELEVANT STATUTES AND REGULATIONS I. The Americans With Disabilities Act.
A. Introduction The ADA was enacted in 1990 to address several areas of discrimination against persons with disabilities. Those areas are principally employment (Title I

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of the ADA); public services (Title I1 of the ADA) and public accommodations and services operated by private entities. (Title I11 of the ADA). As stated in the preamble to the ADA, the purpose of the ADA is "(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong consistent enforceable
standards addressing discrimination against individuals with disabilities;...and (4)
to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C.
5 12101(b). This Court has consistently held that the ADA must be construed
broadly to effectuate its remedial purposes. See, e.g., Loeffler v. Staten Island University Hospital, 582 F.3d 268,287 (2d Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261,279 (2d Cir. 2003).
B. General Provisions of Title I1 of the ADA. As the paratransit services at issue here are a public service, it is undisputed that Title I1 of the ADA is the applicable portion of the ADA here. In Part A of Title 11, the general sections of Title 11, discrimination is defined
as follows (42 U.S.C. 5 12132):
Subject to the provisions of t h s subchapter, 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

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activities of a public entity, or be subjected to discrimination by any such entity. With regard to enforcement of the ADA against the above definition of
discrimination, 42 U.S.C. 5 12133 states that "the remedies, procedures, and rights
set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of
disability in violation of section 12132 of this Title." 29 U.S.C. §794a(2) states that "the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. 52000d et seq] shall be available to any person
aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title." A private right
of action can be maintained under 42 U.S.C.A. 52000d against the provider of public services like the defendant. Barnes v. Gonnan, 536 U.S. 181, 185 (2002).
C. Paratransit Services and Title I1 of the ADA.
42 U.S.C. 5 12143 is the section of Title I1 of the ADA relevant to the provision of paratransit services as a public service. 42 U.S.C. 5 12143(a) states as
a general rule: It shall be considered discrimination for purposes of section 12132 of this title and section 794 of Title 29 for a public entity which operates a fixed route system.. . to fail to provide with respect to the operations of its fixed route system, in accordance with this section, paratransit and other special transportation services to individuals with
disabilities.. .

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42 U.S.C. 5 12143(b)requires the Secretary of Transportation to issue
regulations to carry out this section, and 42 U.S.C. 12143(c) states the required
content of those regulations. 42 U.S.C. 5 12143(c)(6),labeled "Public
participation," states as follows:
The regulations issued under t h s section shall require that each public entity which operates a fixed route system hold a public hearing, provide an opportunity for public comment, and consult individuals with disabilities in preparing its plan under paragraph (7).
Paragraph (7) of 42 U.S.C. 5 12143(c),labeled "Plans," states:
The regulations issued under t h s section shall require that each public entity which operates a fixed route system-
(A) within 18 months after July 26, 1990, submit to the Secretary, and commence implementation of, a plan for providing paratransit and other special transportation services, which meets the requirements of this section; and
(b) on an annual basis thereafter, submit to the Secretary, and commence implementation of, a plan for providing such services.
42 U.S.C. 5 12143(e)(1) defines the term "discrimination" as used above at 42 U.S.C. 5 12143(a)as "a failure of a public entity to which the regulations issued
under this section apply to submit, or commence implementation of, a plan in
accordance with subsections (c)(6) and (c)(7) of this section."
42 U.S.C. fj12143(f)(1) states that nothing in 42 U.S.C. 5 12143prevents a
public entity from providing paratransit services at a level greater than that
required by the section.

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D. Paratransit Regulations Enacted Pursuant to 42 U.S.C 812143
The relevant paratransit regulation issued pursuant to 42 U.S.C. 5 12143 here
is 49 C.F.R. 537.137(c), which states as follows
(c) Ongoing requirement. The entity shall create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. This includes, but is not limited to, the development of the initial plan, any request for an undue financial burden waiver, and each annual submission.
Also relevant to the consideration of this action is 49 C.F.R.
§37.135(~)(1)w, hich states as follows:
(1) If an entity has met and is continuing to meet all requirements for
complementaryparatransit in 5537.121-37.133 of this part, the entity
may submit to FTA an annual certification of continued compliance in
lieu of a plan update. .. The requirements of 49 C.F.R. 5537.137(a)
and (b), 37.138 and 37.139 do not apply when a certificationis submitted under this paragraph.
Therefore, the requirements of 42 U.S.C. 5 12143(c)(7) and 49 C.F.R.
§37.137(c) must be followed even if 49 C.F.R. §§37.137(a) and (b) do not
apply to the annual certification.
FACTS
I. Introduction
At issue here is whether the defendant complied the "public participation"
requirements of 42 U.S.C. 5 12143 and the regulations enacted pursuant to that

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statute in deciding to eliminate 9% of paratransit service in Nassau County (commonly known as "Able-Ride") and eliminate all paratransit service in the northeastern portion of that county. This section will present the "public participation" steps taken by the defendant with regard to the decision to make the service elimination. 11. Accessible Transportation Oversight Committee (ATOC) January Meeting.
There is a committee of people with disabilities and people who use AbleRide known as the "Accessible Transportation Oversight Committee." ("ATOC"). ATOC met on January 12,2010, and the agenda notes for that meeting regarding Able-Ride service cuts states as follows: "What service cuts and changes will take place? We will have more information after the March hearings. The posters with the hearing dates will be made available February 9"." J.A. 68. 111. Notice of the Public Hearing.
Posters with the hearing dates were then placed in Able-Ride vehicles. The poster (J.A. 70) indicated in small print that the public hearing in Nassau County was to be held at the Chateau Briand restaurant in Carle Place on Monday, March 1,2010.
While the poster notes that a hearing was to be held in changes in the levels of service of "New York City Transit, the Manhattan and Bronx Surface Transit Operating Authority, MTA Staten Island Railway, MTA Long Island Railroad,

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MTA Bridges and Tunnels, MTA Long Island Bus, and MTA Bus," the poster specifically notes that "other service-related changes are proposed that may also affect the operation and general provision of service of subway, bus and rail lines, and the paratransit services of Access-A-Ride and Able-Ride. Although these proposed changes do not require public hearing, they are described in informational material available on the MTA website." J.A. 70.
In stating that no public hearing was required for the Able-Ride changes, the poster left the impression that the Able-Ride changes were not to be considered at the scheduled public hearing. In any event, for one to understand the Able-Ride changes, one had to look for "informational material available on the MTA website" without the poster explaining where they could be found on the MTA website. The poster assumed that all Able-Ride users had access to the MTA website or were computer literate or could navigate the MTA website which was noted at the January 12,2010ATOC meeting as being confusing and at which MTA admitted was difficult to read.
As for the information which was on the MTA website, defendant's counsel produced the document that was referred to in the poster. J.A. 72-73. The documents may have been in pdf format which cannot be read by blind and visually impaired customers who use screen readers.

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The document only stated that the proposed plan was to "eliminate service to geographic areas not required by ADA to be covered ("non-ADA trips")." J.A. 7273. In other words, in order to figure out whether one was affected by the proposed Able-Ride service elimination, an Able-Ride user would have to:
(a) know where to find the ADA and its regulations and be able to access those laws.
(b) understand those laws and (c) once having accessed and understood the laws, consult a bus map to see where they and their destinations are in proximity to fixed bus routes. Since the bulk of the service changes were apparently intended for the Oyster Bay, Bayville and Syosset areas, there was no reason why such notice should not have been provided in the poster or in the website material connected to the poster as they were in the March 10,2010 letter informing Able-Ride users of the areas that would be most affected by the proposed service changes. J.A. 98. And since defendant knew the addresses of Able-Ride users, there was no reason why defendant could not have contacted the Able-Ride users directly about the public hearing with specifics on what and where the Able-Ride changes were going to be rather than the convoluted notice system used by the defendant that was calculated to ensure that Able-Ride users not attend the public hearing and not

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understand the nature of the proposed Able-Ride cuts prior to those cuts being made official. IV. The Public Hearing;.
The public hearing was held at the Chateau Briand on March lSt.At the outset of the hearing, defendant's hearing officer Christopher Boylan noted that the hearing "will provide the public with the opportunity to comment on proposed changes to rail, bus and subway services, the student Metrocard discounted fares and the RockawayJBroad Channel resident rebate." J.A. 75. Mr. Boylan also noted that "other service adjustments are proposed that do not require a public
hearing but may affect . . . paratransit service." Id.
Many people came to the public hearing to protest various cuts. Unlike Able-Ride users who were not given explicit information as to where the service cuts would occur, persons using other MTA services were presented with explicit information as to whether their bus lines or train routes were affected by the cuts. Therefore, persons using MTA services other than Able-Ride users were sufficiently alerted so that they could come to the hearing to make their comments heard. For example, a Sandy Portnoy was present at the hearing to protest cuts to the Port Washington Long Island Railroad line. J.A. 76-79.
Only two Able-Ride users attended the hearing (J.A. 80-89) and the testimony of one of them (Lynette Perez) indicated the inadequacy of the notice

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provided by defendant to Able-Ride users of the proposed cuts. The testimony of the Able-Ride users indicated that neither understood the service changes proposed for Able-Ride, and as stated in the affidavit of Therese Brezinzski of the ATOC, she was under the impression that the proposed Able-Ride cuts were not going to be considered at the proposed hearing. J.A. 103.
Statements made by some non-disabled riders at the public hearing seemed to have swayed defendant to rescind some of the cuts in service for them (J.A. 9091), so participation and attendance at the public hearing was meaningful and relevant for some non-disabled riders. V. ATOC meeting held the day before paratransit cuts are announced and the March 10,2010 notice to Able-Ride users.
There was another meeting of the ATOC on March 9,2010, one day before the March 10,2010 letter was sent to the Able-Ride users informing them of the service changes. As stated in the agenda for that meeting (J.A. 93), "A draft of service cuts for Able-Ride was handed out, discussed and explained in detail." However, by that time, the service cuts were already a fait accompli and defendant's representatives were not interested in consulting with members of ATOC or have ATOC members participate in determining how cuts, if any were necessary, should be made. J.A. 103.

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The defendant mailed a letter dated March 10,2010 to each Able-Ride user regarding the service cuts after they were approved by the defendant. J.A. 98. While defendant was able to mail to each Able-Ride rider the notice stating that the service cuts had been approved by the defendant, defendant refused to give similar mail notice to Able-Ride users of the proposed Able-Ride cuts prior to their approval by defendant or notice of the public hearing with a clear explanation of the cuts and where they would take effect and that Able-Ride cuts were to be discussed at the public hearing. And while the defendant rescinded some proposed Long Island Bus cuts based on the public comment at the hearing, the defendant did not rescind any of the proposed Able-Ride cuts. VI. The April 22,2010 Public Information Session.
After plaintiffs commenced this action on April 7,2010 and the district court issued a temporary restraining order on April 9,2010, defendant held a "public information session" with regard to the Able-Ride service changes on April 22, 2010. J.A. 144.'
Notice of t h s "public information session" was not sent to all Able-Ride users. As for the "public information session" itself, the session largely was taken up with Mr. Charles explaining the service changes and answering questions from the public. Unlike the March 1,2010 hearing held at the Chateau Briand where the
' The April 22,20 10public information session was held after the MTA had made
its decision to eliminate Able-Ride service.

Case: 10-2058 Document: 90 Page: 21 07/26/2010 75691 36
defendant gave "an opportunity for members of the public to comment on the proposed changes," that were considered by the defendant, the April 22,2010 public information session was not aimed at soliciting comment on the proposed changes fiom the public that defendant would then consider. Rather, the session was aimed at telling the audience that the defendant was going to make the cuts in service. J.A. 195.
SUMMARY OF ARGUMENT The district court committed an error of law in dismissing this action. The "public participation" requirements under the regulations require the participation of individuals with disabilities in both the continued development and assessment of paratransit services to people with disabilities, and an entity like the defendant is not exempt fiom those requirements merely because it is otherwise in compliance with the ADA. The defendant violated the regulations in failing to sufficiently seek such public participation prior to eliminating 9% of paratransit service in Nassau County and 100% of such service in some areas, and based on a decision of this Court, plaintiffs have a private right of action to bring this action under the regulations. Therefore, not only did the district court err in dismissing this action, it also erred in not granting a preliminary injunction to the plaintiffs.

Case: 10-2058 Document: 90 Page: 22 07/26/2010 75691 36
POINT I THE DISTRICT COURT ERRED IN HOLDING THAT THE PUBLIC PARTICIPATION REQUIREMENTS WERE INAPPLICABLE HERE. The district court held that the public participation requirements of the paratransit regulations were inapplicable because (a) they only applied to the development of paratransit services and (b) they were inapplicable because defendant was otherwise in compliance with the ADA. J.A. 206. The district cowt totally misread the regulations, and the public participation requirements are applicable here. Consequently, in committing an error of law, the district court abused its discretion (McDaniel v. County of Schenectady, 595 F.3d 411,416 (2d
Cir. 2010) and this Court in de novo review (Padmore v. Holder, -F.3d-, 2010
WL 2365863 *3 (2d Cir. 20 10) should reverse the order of the district court dismissing this action.
At issue is the application of 49 C.F.R. §37.137(c), which places an ongoing requirement on entities like the defendant to "create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities." As the regulation applies to both "continued development and assessment," the district court clearly erred in holding that the regulation only applies to "development."

Case: 10-2058 Document: 90 Page: 23 07/26/2010 75691 36
The district court also clearly erred in holding that because defendant was otherwise in compliance with the ADA, it was exempt from the provisions of 49 C.F.R. 937.137(c). The regulation relied upon by the lower court, 49 C.F.R. §37.135(c)(l), provides an exemption from the provisions of 9937.137(a) and (b) but omits any mention of §37.137(c). Consequently, the district court erred in holding that the exemption applied to §37.137(c) when there was no mention of that section in the portion of the regulation upon which it relied.
The district court's citation to a statement of the Department of Transportation (J.A. 206) also fails to support its decision. The Department of Transportation statement is not contrary to plaintiffs' position and indeed support plaintiffs' position. That statement appears only to pertain to §§37.137(a) and (b) and specifically notes that "because the regulation already requires a mechanism for continuing public participation (see $37.137(c)), the Department is not persuaded that the public participation process accompanying plan updates is
essential to provide public input to providers about paratransit service." Therefore,
the Department of Transportation statement appears to recognize explicitly the
applicabilityof 937.137(c) here.
Consequently, the district court erred in dismissing plaintiffs' action on the ground that the public participation requirement was not applicable here.

Case: 10-2058 Document: 90 Page: 24 07/26/2010 75691 36
POINT I1 PLAINTIFFS HAVE DEMONSTRATED A CLEAR LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM AND ARE ENTITLED TO A PRELIMINARY INJUNCTION.
A. Introduction This point will discuss the two issues not addressed by the Court below. Those issues are (a) whether plaintiffs have a private cause of action to bring this action and (b) whether defendant violated the "public participation" portion of 42
U.S.C. 5 12143 and the accompanying regulations.
In sum, based upon a decision of this Court, plaintiffs implicitly have a private right of action under the statute and its regulations. Moreover, based upon the record of this case, defendant clearly failed to comply with the "public participation" requirements of the ADA. As plaintiffs did demonstrate a likelihood a success on the merits and defendant did not contest the issue of irreparable harm,2the district court erred in not granting a preliminary injunction to plaintiffs.
B. Plaintiffs have a Private Cause of Action. The District Court found that plaintiffs have a private cause of action under
Title I1 of the ADA, said title including 42 U.S.C. 5 12143, the section regulating
See Keirnan v. Utah Transit Authority, 339 F.3d 1217, 1220 (10" Cir. 2003) (reduction of transportation to person with disability considered irreparable harm where plaintiff would lose opportunity to attend religious services and medical appointments).

Case: 10-2058 Document: 90 Page: 25 07/26/2010 75691 36
paratransit services. The dispute between the parties is whether plaintiffs have a private right of action under 49 C.F.R. $37.137, a regulation issued pursuant to 42 U.S.C. $12143.
Because 49 C.F.R. $37.137 is merely implementing the language of 42 U.S.C. $ 12143 and largely dovetails that statute and since defendant would concede that plaintiffs would have a private right of action under 42 U.S.C. $ 12143, plaintiffs have a private right of action under 49 C.F.R. $37.137 as well.
While there have been no cases interpreting whether there is a private right of action under 49 C.F.R. $37.137, an application of the general principles on the cases relating to what regulations permit a private right of action clearly demonstrate that there is a private right of action under 49 C.F.R. $37.137.
Numerous cases have held that a regulation that simply effectuates the express mandates of the controlling statute may be enforced by means of a the private right of action available under that statute. See, e.g., Alexander v. Sandoval, 532 U.S. 275,284 (2001); Iverson v. City of Boston, 452 F.3d 94, 100101 (1st Cir. 2006); Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901,906 (6" Cir. 2004). Indeed, in a decision interpreting the Supreme Court's decision in Alexander v. Sandoval, the Eastern District Court for New York held in
Stamrn v. New York City Transit Authority, 2006 WL 1027142 * 12 (E.D.N.Y.
2006), that "a plaintiff might be able to sue to enforce a regulation which merely

Case: 10-2058 Document: 90 Page: 26 07/26/2010 75691 36
applied or authoritatively construed a statute which itself could be enforced by a private right of action." In Stamrn, this Court found support for the position that the transportation regulations involved here do no more than apply or interpret the provisions of Title I1 of the ADA, stating: "See 49 C.F.R. 937.1 ("The purpose of this Part [49 C.F.R. Part 371 is to implement the transportation and related
provisions of title I1 and 111" of the ADA.) Id.
Therefore, in analyzing whether 49 C.F.R 937.137 provides plaintiffs with a private right of action, this Court must examine two issues: (a) could the
underlying statute that the regulation is based upon (42 U.S.C. 9 12143)be enforced by a private right of action and (b) assuming that 42 U.S.C. 5 12143 is
enforceable by a private right of action, is 49 C.F.R. 937.137 a regulation that is
merely applying or authoritatively construing 42 U.S.C. 9 12143? The answer to
both of those questions is in the affirmative. As stated previously, Title I1 of the Americans With Disabilities Act which
includes 42 U.S.C. 8 12143 is enforceable by a private right of action. At several subsections of 42 U.S.C. 8 12143,it is stated that violations of 42 U.S.C. tj12143
are considered discrimination for the purposes of Title 11's general definition of discrimination at 42 U.S.C. § 12132. 42 U.S.C. §12143(a), (e). Discrimination for the purposes of 42 U.S.C. 912132 can be remedied through 42 U.S.C. 912133, which implicates the remedies of 29 U.S.C. 9794a which implicates the remedies

Case: 10-2058 Document: 90 Page: 27 07/26/2010 75691 36
of 42 U.S.C. 92000d. As discussed above, there is a private right of action under 42 U.S.C. 92000d. Barnes v. Gorrnan, 536 U.S. 181, 185 (2002). Consequently, defendant correctly concedes that there is a private right of action under Title I1 of
the ADA, which would include 42 U.S.C. 5 12143.
Several courts including this Court have implicitly recognized that there is a
private right of action under 42 U.S.C. 5 12143. See Anderson v. Rochester-
Genesee Reg- ional Transportation Authority, 337 F.3d 201 (2d Cir. 2003); Disability Rig- hts Council v. Washington Metropolitan Area Transit Authority, 239 F.R.D. 9 (D.D.C. 2006); Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F.Supp.2d 1362 (N.D. Ga. 2002); Liberty Resources, Inc. v. Southeastern Pennsylvania Transportation author it^, 155 F.Supp.2d 242 (E.D. Pa. 2001). Had this Court and the other courts not found a private right of action existing under 42
U.S.C. 512143, they would have been obliged to sua sponte dismiss the actions on
the ground that the courts did not have subject matter jurisdiction to entertain the issue pursuant to F.R.C.P. Rule 12(h)(3). See, e.g., Hertz Corn. v. Friend, -U.S. 9- 130 S.Ct. 1181, 1193 (2010).
As plaintiffs have a private right of action under 42 U.S.C. 5 12143, the other
issue this Court must address, as held by this Court in Stamm, is whether 49 C.F.R.
5 137.37 is one that "merely applied or authoritatively construed" 42 U.S.C. 9 12143. The language of 42 U.S.C. 9 12143itself, and in comparison to the

Case: 10-2058 Document: 90 Page: 28 07/26/2010 75691 36
language of 42 U.S.C. $ 137.37, demonstrates that 49 C.F.R. $ 137.37 is one that "merely applied or authoritatively construed" 42 U.S.C. $ 137.37 and thus a regulation in which the plaintiffs do have a private right of action.
The key subsections of 42 U.S.C. $ 12143 at issue in this case are 42 U.S.C. $ 12143(c)(6)(the "public participation" subsection requiring a public hearing, opportunity for public comment, and consultation with individuals with disabilities) and 42 U.S.C. $ 12143(c)(7) (the subsection placing an ongoing requirement on an entity like the defendant to engage in public participation in the development and assessment of paratransit services). Both of these subsections required the issuance of regulations by the Secretary of Transportation.
More importantly, in defining what is to be considered "discrimination" under the privately actionable 42 U.S.C. $$ 12132 and 12143(a), the paratransit
statute at 42 U.S.C. 5 12143(e)(1)notes that discrimination under those statutes
also includes an entity's failure to comply with 42 U.S.C. $ 12143(c)(6) and (7) and the regulations issued under those sections (which would be 49 C.F.R. $ 137.37). Consequently, a violation of the regulations is "discrirnination" actionable through 42 U.S.C. $12143(e)(l) and ultimately through 42 U.S.C. $12143(a),42 U.S.C. $12132, 42 U.S.C. $12133,29 U.S.C. $794a and 42 U.S.C. $2000d. Therefore, through the clear language of 42 U.S.C. $ 12143(c)(6) and (7) and $ 12143(e),

Case: 10-2058 Document: 90 Page: 29 07/26/2010 75691 36
plaintiffs clearly have a private right of action under both those statutes and their implementing regulation, 49 C.F.R. $37.137.
A comparison between 42 U.S.C. $ 12143(c)(6) and (7) and 49 C.F.R. $37.137 demonstrates that the language of the regulation meets the requirement in Stamrn that the plaintiffs may enforce a regulation "which merely applied or
authoritatively construed a statute." 42 U.S.C. 8 12143(c)(6) requires "public
participation", a public hearing, an opportunity for public comment, and consultation with individuals with disabilities. Similarly, 49 C.F.R. $37.137 requires "public participation" (49 C.F.R. $37.137[b]), a public hearing (49 C.F.R. §37.137p][4]); an opportunity for public comment (49 C.F.R. $37.137[b][3]) and consultation with individuals with disabilities (49 C.F.R. $37.137[b][1],[2]). Similarly, 42 U.S.C. $ 12143(c)(6)and (7) mandate that the requirements of 42 U.S.C. $ 12143(c)(6)be ongoing, as does the ongoing requirement section of the regulation (49 C.F.R. $ 137.37[c]).
Consequently, as 49 C.F.R. 837.137 merely applies and authoritatively construes the privately actionable 42 U.S.C. $ 12143(c)(6) and (7), plaintiffs have a private right of action under that regulation.
Defendant seems to make the argument that violations of the sections of the statute pertaining to public participation are not discrimination as opposed to issues involving customer service. Defendant is wrong.

Case: 10-2058 Document: 90 Page: 30 07/26/2010 75691 36
Violations of the portions of the paratransit statute and its accompanying regulations on public participation in paratransit plan development are just as much
discrimination as customer service. 42 U.S.C. 512143(e)(1)defines
"discrimination" to include violations of the "public participation in paratransit
plan development" sections of the statute (42 U.S.C. 5 12143[c][6] and [7]) as the
term "discrimination" is used at 42 U.S.C. $12143(a). Therefore, violations of the "public participation in paratransit plan development" sections of the statute and their accompanying regulations are just as much "discrimination" under the
privately actionable 42 U.S.C. 5 12143(a) as discrimination based on the customer
service provisions of the statute and accompanying regulations. Consequently, contrary to defendant's position, the distinction between the customer service and public participation portions of the paratransit statute is a distinction without a difference.
Taking the argument one step further, in Anderson v. Rochester-Genesee Regional Transportation Authority, 337 F.3d 201 (2d Cir. 2003), this Court implicitly found a private right of action to enforce the customer service
regulations connected to 42 U.S.C. 512143. Consequently, as discussed above, as
customer service discrimination should be treated no differently fiom the public participation discrimination involved here, this Court has implicitly held that there

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is likewise a private right of action to enforce the public participation regulations
connected to 42 U.S.C. 9 12143 at issue here.
C. Defendant violated the "public participation" re~ulation. Under 49 C.F.R. §37.137(c), defendant had an ongoing obligation to create a mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. Said obligation applied to events well beyond the mere development and submission of a plan, and certainly applied here where defendant proposed to eliminated 9% of all Able-Ride service and 100% of all Able-Ride service in some portions of Nassau County. The defendant totally failed to create a mechanism for the participation of individuals with disabilities with regard to the decision to make massive cuts in Able-Ride service. The record of this case demonstrates that the defendant did not allow people with disabilities to in any way participate in the decision or ask the advice or opinion of people with disabilities before deciding to eliminate 9% of all AbleRide service and 100% of all Able-Ride service in certain areas of Nassau County. The defendant not consult with the ATOC before deciding on eliminating AbleRide service or sought the ATOC's participation in that decision in any meaningful way. Instead, the defendant told the ATOC that it would be eliminating the AbleRide service after it was a fait accompli.

Case: 10-2058 Document: 90 Page: 32 07/26/2010 75691 36
The "public information session" held by defendant on April 22,2010 after the decision to cut the Able-Ride service was made was exactly as described in Mr. Charles' affidavit. It was a public information session in which Mr. Charles presented information about the Able-Ride cuts and answered questions about the cuts. Defendant does not even allege that it was seeking comments or advice from people with disabilities and their advocates at the "public information session" regarding the Able-Ride cuts and how defendant could possibly save money without making such drastic cuts that even Mr. Charles admits would create a "hardship" for some people.
Defendant maintained both in its poster giving notice of the March 1,2010 public hearing and at the outset of that public hearing that it was not required to hold a public hearing and seek comments from the public. The defendant apparently did not view its March 1,2010 public hearing as a "public hearing" on the Able-Ride cuts. The public statement that no hearing was required on the proposed Able-Ride cuts discouraged people with disabilities fiom attending the public hearing.
Consequently, defendant failed to solicit public comment and public participation on the Able-Ride cuts fiom people with disabilities as required by the paratransit statute and its accompanying regulations.

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Finally, and most egregiously, defendant purposely avoided giving sufficient notice of the proposed Able-Ride cuts to people with disabilities until after the cuts had been made.
In this case, defendant went out of its way not to inform people with disabilities in Nassau County about the proposed Able-Ride cuts before the cuts were made. Rather than mail Able-Ride users with a notice about the cuts prior to their approval or the public hearing (as it mailed Able-Ride users with notice of the Able-Ride cuts after they had been made) or use other media as required by the regulations, Able-Ride posted the information about the cuts on its website, possibly in pdf form.
That notice was faulty in the following ways: (1) if it had been in pdf form, some people with visual impairments would have been unable to access the document, (2) even if every Able-Ride user had access to a computer or was computer-literate, the MTA website was confusing, (3) the notice cited to the ADA, requiring Able-Ride users to have to find the ADA and its regulations and then understand the ADA and its regulations, (4) assuming Able-Ride users were able to find the ADA and its regulations and then understand them, they would have then had to consult a Long Island Bus map to determine whether they would be affected by the service changes, (5) even though defendant knew which communities would be most affected by the service cuts (northeasternNassau

Case: 10-2058 Document: 90 Page: 34 07/26/2010 75691 36
County), the notice did not state that those communities would be most affected by the service cuts, and (6) the notice informed Able-Ride users that the Able-Ride cuts were not a subject of the public hearing. On the other hand, non-disabled persons in other communities were placed on notice about which Long Island Railroad lines and which Long Island Bus routes would be affected by service cuts and they were able to come to the public hearing prepared to provide public comment with regard to their railroad or bus line.
In sum, defendant's handling of the Able-Ride service eliminations which Mr. Charles concedes would cause hardship to some riders was calculated not to provide notice to people with disabilities in Nassau County of the service eliminations until after the decision on the service eliminations had been made by defendant. As defendant's egregious actions were a deliberate intent to avoid public participation, consultation, and comment on the Able-Ride service cuts, defendant's actions were in violation of both the paratransit statute of Title I1of the ADA and the regulations issued pursuant to that statute.

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CONCLUSION The order of the district court dismissing this action and denying plaintiffs application for a preliminary injunction should be reversed and plaintiffs application for a preliminary injunction should be granted. Dated: Garden City, New York
July 20,2010 MORITT HOCK HAMROFF &

Case: 10-2058 Document: 90 Page: 36 07/26/2010 75691 36
Federal Rules of Appellate Procedure Form 6 Certificate of Compliance with Rule 32 (a)
Certificate of Compliance With Type-Volume Limitation Typeface Requirements and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R.App.P. 32(a)(7)(B) because this brief contains 6248 words, excluding the parts of the brief exempted by Fed. R. App.P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed. R.App.P. 32(a)(6) because this brief has been prepared i n g proportionally spaced typeface using Microsoft es New Roman, 14 points.
Attorney for plaintiffs-Appellants Dated: July 20, 20 10

 
 Case: 2:10-cv-01535-SJF -ARL As of: 05/27/2011 12:40 AM EDT 1 of 5

U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:10−cv−01535−SJF −ARL

APPEAL

Abrahams et al v. MTA Long Island Bus Assigned to: Judge Sandra J. Feuerstein Referred to: Magistrate Judge Arlene R. Lindsay Cause: 42:1201 Civil Rights (Disability)
Plaintiff

Date Filed: 04/07/2010 Date Terminated: 05/26/2010 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Danny Abrahams

represented by Robert L. Schonfeld Moritt Hock Hamroff &Horowitz LLP 400 Garden City Plaza Garden City, NY 11530 516−873−2000 Fax: 516−873−2010 Email: rschonfeld@moritthock.com ATTORNEY TO BE NOTICED

Plaintiff Anthony Celardo

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kevin Christman

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lauren Epstein

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Meryl Jackelow

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Evan Skidmore

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Tindal

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lee Wolbrum

represented by Robert L. Schonfeld (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 2:10-cv-01535-SJF -ARL
Defendant MTA Long Island Bus

As of: 05/27/2011 12:40 AM EDT 2 of 5
represented by Shawn Marcus Friedman NYC Transit Authority 130 Livingston Street, 12th Floor Brooklyn, NY 11201 (718)694−5715 Fax: (718)694−1070 Email: shawn.friedman@nyct.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/07/2010 04/07/2010 04/07/2010 04/07/2010 04/07/2010 04/08/2010 04/08/2010 04/09/2010 04/09/2010 04/09/2010
04/22/2010

# Docket Text
1 COMPLAINT against MTA Long Island Bus Disclosure Statement on Civil Cover Sheet completed −No,, filed by Evan Skidmore, Anthony Celardo, Lauren Epstein, Meryl Jackelow, Lee Wolbrum, Danny Abrahams, David Tindal, Kevin Christman. (Attachments: # 1 Civil Cover Sheet) (Rodecker, John) (Entered: 04/07/2010)
Summons Issued as to MTA Long Island Bus. (Rodecker, John) (Entered: 04/07/2010)
FILING FEE: $ 350.00, receipt number NYEC002876 (Rodecker, John) (Entered: 04/07/2010)
2 Proposed Order to Show Cause and Temporary Restraining Order by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum (Rodecker, John) (Entered: 04/07/2010)
3 MEMORANDUM of Law in Support re 2 Proposed Order to Show Cause and Temporary Restraining Order filed by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Rodecker, John) (Entered: 04/07/2010)
4 AMENDED COMPLAINT against MTA Long Island Bus, filed by Evan Skidmore, Anthony Celardo, Lauren Epstein, Meryl Jackelow, Lee Wolbrum, Danny Abrahams, David Tindal, Kevin Christman. (Attachments: # 1 Affidavit in Support, # 2 Affidavit of Service) (Schonfeld, Robert) (Entered: 04/08/2010)
5 AFFIDAVIT/AFFIRMATION re 4 Amended Complaint, Affidavit of Monica Godfrey−Lehrer by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum (Attachments: # 1 Affidavit of Service) (Schonfeld, Robert) (Entered: 04/08/2010)
Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 04/09/2010)
6 Minute Entry for proceedings held before Judge Joanna Seybert: Show Cause Hearing held on 4/9/2010. T.R.O. to be issued. Status Conference set for 4/27/2010 at 5:00pm before Judge Joanna Seybert. (Court Reporter D. Tursi) (Baran, Charles) (Entered: 04/09/2010)
7 TEMPORARY RESTRAINING ORDER and ORDER TO SHOW CAUSE − Let Defendant show cause on 4/9/10 at 10:00AM as counsel may be heard for an order pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining Defendant as further set forth herein. Further a temporary restraining order is issued on consent of the parties, enjoining Defendant from implementing changes in its paratransit policy as stated in its letter dated 3/10/10 until 4/27/10. So Ordered by Judge Joanna Seybert on 4/9/10. (Valle, Christine) (Entered: 04/09/2010)
8 AFFIDAVIT in Support of Application for Temporary Restraining Order and Preliminary Injunction of Robert L. Schonfeld for by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Attachments: # 1 ATOC Membership List, # 2 ATOC Meeting Agenda for 1/12/10, # 3 Notice of Public Hearing, # 4 MTA Website Home Page, # 5 Information connected to Notice of Public Hearing, # 6 part of transcript of public hearing, # 7 part of transcript of public hearing, # 8 part

Case: 2:10-cv-01535-SJF -ARL As of: 05/27/2011 12:40 AM EDT 3 of 5

04/27/2010 04/27/2010 04/27/2010 04/27/2010 04/27/2010
04/28/2010
04/28/2010
05/04/2010 05/07/2010 05/07/2010 05/07/2010
05/07/2010 05/14/2010 05/14/2010
05/14/2010
05/20/2010

of transcript of public hearing, # 9 Letter on LI Bus Cuts, # 10 ATOC Meeting Agenda for 3/9/10, # 11 Letter on Able Ride Cuts, # 12 Notice to Able Ride Consumers on Cuts, # 13 e−mail from Assemblyman Kellner's office, # 14 Newsday article of Judy Jacobs, # 15 Affidavit affidavit of Therese Brezinzski) (Schonfeld, Robert) (Entered: 04/22/2010)
9 Notice of Related Case (Ryan, Mary) (Entered: 04/27/2010)
10 Letter in reply to the Supplemental Affidavit filed by Plaintiffs by MTA Long Island Bus (Friedman, Shawn) (Entered: 04/27/2010)
11 NOTICE of Appearance by Shawn Marcus Friedman on behalf of MTA Long Island Bus (aty to be noticed) (Friedman, Shawn) (Entered: 04/27/2010)
12 Letter in Reply to Defendant's Counsel by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum (Schonfeld, Robert) (Entered: 04/27/2010)
13 Minute Entry for proceedings held before Judge Joanna Seybert: Show Cause Hearing held on 4/27/2010. Argument heard. Decision reserved. Counsel to appear before Judge Feuerstein 4/28/2010 at 11:30am when she hears a related case CV10−1862. (Court Reporter D. Tursi) (Baran, Charles) (Entered: 04/27/2010)
14 ORDER OF RECUSAL − For the reason set forth herein, the undersigned must recuse herself. The Clerk of Court will be directed to reassign this case to Judge Sandra J. Feuerstein and Magistrate Judge Arlene R. Lindsay as related to 10cv1862. So Ordered by Judge Joanna Seybert on 4/28/2010. (Valle, Christine) (Entered: 04/28/2010)
20 Minute Entry for proceedings held before Judge Sandra J. Feuerstein: Counsel present. Show Cause Hearing held on 4/28/2010. TRO continued for 30 days. Dfts to file motion with the Court by May 7, 2010; Plff to file opposition with the Court by May 17, 2010. Dfts are to file reply with the Court by May 20, 2010. (Brienza, Lauren) (Entered: 05/12/2010)
15 MOTION for Reconsideration by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 05/04/2010)
16 MOTION to Dismiss by MTA Long Island Bus. (Friedman, Shawn) (Entered: 05/07/2010)
17 AFFIDAVIT/DECLARATION in Support re 16 MOTION to Dismiss Neil Yellin filed by MTA Long Island Bus. (Friedman, Shawn) (Entered: 05/07/2010)
18 AFFIDAVIT/DECLARATION in Support re 16 MOTION to Dismiss Thomas Charles filed by MTA Long Island Bus. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Friedman, Shawn) (Entered: 05/07/2010)
19 MEMORANDUM in Support re 16 MOTION to Dismiss filed by MTA Long Island Bus. (Friedman, Shawn) (Entered: 05/07/2010)
21 AFFIDAVIT/AFFIRMATION re 16 MOTION to Dismiss by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum (Schonfeld, Robert) (Entered: 05/14/2010)
22 MEMORANDUM in Support re 16 MOTION to Dismiss filed by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 05/14/2010)
23 AFFIDAVIT of Service for Affidavit and Memorandum of Law served on Shawn Friedman on May 14, 2010, filed by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 05/14/2010)
24 REPLY in Support re 16 MOTION to Dismiss filed by MTA Long Island Bus. (Friedman, Shawn) (Entered: 05/20/2010)

Case: 2:10-cv-01535-SJF -ARL As of: 05/27/2011 12:40 AM EDT 4 of 5

05/20/2010 05/25/2010 05/26/2010 05/26/2010
05/26/2010 05/27/2010
05/27/2010 05/28/2010 06/18/2010 06/18/2010 06/18/2010 06/18/2010 03/21/2011

25 AFFIDAVIT/DECLARATION in Support re 16 MOTION to Dismiss filed by MTA Long Island Bus. (Friedman, Shawn) (Entered: 05/20/2010)
26 ORDER granting 16 Motion to Dismiss. Plffs' motion for a preliminary injunction is denied and dft's motion to dismiss the complaint is granted. The Clerk of the Court is directed to close this case. Ordered by Judge Sandra J. Feuerstein on 5/25/2010. (Brienza, Lauren) (Main Document 26 replaced on 5/27/2010) (Brienza, Lauren). (Entered: 05/26/2010)
27 ORDER: Based upon this Court's rulings in the May 25 Order, the TRO and bond requirement are hereby vacated. Ordered by Judge Sandra J. Feuerstein on 5/26/2010. (Brienza, Lauren) (Entered: 05/26/2010)
28 CLERK'S JUDGMENT in favor of MTA Long Island Bus against Anthony Celardo, Danny Abrahams, David Tindal, Evan Skidmore, Kevin Christman, Lauren Epstein, Lee Wolbrum, Meryl Jackelow. It is ORDERED AND ADJUDGED that plffs take nothing of dft; that plffs' motion for preliminary injunction is denied; that dft's motion to dismiss the complaint is granted; and that this case is hereby closed. Ordered by Clerk of Court on 5/26/2010. (Brienza, Lauren) (Entered: 05/26/2010)
29 NOTICE OF APPEAL as to 26 Order on Motion to Dismiss, by Danny Abrahams. Filing fee $ 455, receipt number 0207−4172795. Appeal Record due by 6/25/2010. (Schonfeld, Robert) (Entered: 05/26/2010)
Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 28 Clerk's Judgment, 20 Show Cause Hearing, 19 Memorandum in Support, 14 Order of Recusal, 26 Order on Motion to Dismiss, 12 Letter, 17 Affidavit in Support of Motion, 24 Reply in Support, 8 Affidavit in Support,,, 27 Order, 7 Order to Show Cause, Temporary Restraining Order,,,, 9 Notice of Related Case, 22 Memorandum in Support, 18 Affidavit in Support of Motion, 6 Show Cause Hearing, Set Hearings, 16 Motion to Dismiss, 10 Letter, 21 Affidavit, 5 Affidavit, 3 Memorandum in Support, 4 Amended Complaint, 23 Affidavit of Service, 11 Notice of Appearance, 15 Motion for Reconsideration, 2 Unsigned Order to Show Cause, 1 Complaint, 25 Affidavit in Support of Motion, 13 Show Cause Hearing, 29 Notice of Appeal (Romano, Daniel) (Entered: 05/27/2010)
31 MANDATE of USCA as to 29 Notice of Appeal filed by Danny Abrahams denying the motion for a temporary restraining motion. (the appeal is still pending as to the dismissal of the complaint.) USCA no.10−2058 (Romano, Daniel) (Entered: 05/28/2010)
30 Letter by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum (Schonfeld, Robert) (Entered: 05/28/2010)
32 Letter by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal (Schonfeld, Robert) (Entered: 06/18/2010)
33 MOTION to Vacate Previous Order by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 06/18/2010)
34 MEMORANDUM in Support re 33 MOTION to Vacate Previous Order filed by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 06/18/2010)
35 AFFIDAVIT of Service for Notice of Motion, Memorandum of Law served on Martin B. Schnabel on 5/28/10, filed by Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum. (Schonfeld, Robert) (Entered: 06/18/2010)
36 ORDER denying 33 Motion to Vacate. By filing a notice of appeal, Plaintiffs divested this Court of jurisdiction to grant a motion to modify or vacate a judgment

Case: 2:10-cv-01535-SJF -ARL As of: 05/27/2011 12:40 AM EDT 5 of 5
without consent of the Second Circuit. As there is no indication that consent has been granted, Plaintiff's motion is denied without prejudice. SO ORDERED. Ordered by Judge Sandra J. Feuerstein on 3/21/2011. (Brienza, Lauren) (Entered: 03/22/2011)

 
 1O-2058-cv; 1O-2190-cv

Abrahams v. MTA Long Island Bus; Cruz v. Nassau County

1

2

UNITED STATES COURT OF APPEALS

3

FOR THE SECOND CIRCmT

4

5

6

August Tenn, 2010

7

8

(Argued in Tandem: October 6, 2010

Decided: May 5, 2011)

9

10

DocketNos. 1O-2058-cv, 1O-2190-cv

11

(consolidated for disposition)

12

13

14

DANNY ABRAHAMS, ANTHONY CELARDO, KEVIN CHRISTMAN, LAUREN EpSTEIN, MERYL

15

JACKELOW, EVAN SKIDMORE, DAVID TINDAL, LEE WOLBRUM,

16

17

Plaintiffs-Appellants,

18

19

-v.-

No. 10-2058-cv

20

21

MTA LONG ISLAND Bus,

22

23

Defendant-Appellee.•

24

25

26

27

28

PABLO CRUZ, MAUREEN HAR1NETT, JOEL STEELE,

29

30

Plaintiffs-Appellants,

31

32

-v.-

No. 1O-2190-cv

33

34

NASSAU COUNTY, MTA LONG ISLAND Bus,

35

36

Defendants-Appellees.

37

38

39

40 Before: SACK, B.D. PARKER, and RAGGI, Circuit Judges.

• The Clerk of Court is directed to amend the official caption to read as shown above.

1

2

3

4

Appeal from two judgments of the United States District Court for the Eastern District of

5 New York (Feuerstein, J.) granting defendants-appellees' motions to dismiss plaintiffs-

6 appellants' claims based on, inter alia, the Americans with Disabilities Act of 1990,42 U.S.C.

7 § 12101 et seq., and denying plaintiffs-appellants' motions for a preliminary injunction.

8

9

AFFIRMED.

10

11

12

ROBERT L. SCHONFELD, Moritt Hock Hamroff & Horowitz LLP,

13

Garden City, NY,for Plaintiffs-Appellants Danny

14

Abrahams, Anthony Celardo, Kevin Christman, Lauren

15

Epstein, Meryl Jackelow, Evan Skidmore. David Tindal.

16

and Lee Wolbrom.

17

18

ROBERTR. BRIGLIO, Nassau/Suffolk Law Services Committee,

19

Inc., Islandia, NY,for Plaintiffs-Appellants Pablo Cruz.

20

Joel Steele. and Maureen Hartnett.

21

22

HELENE FROMM, Deputy General Counsel (Shawn M. Friedman,

23

Peter Sistrom, ofcounsel, on the brief), Metropolitan

24

Transportation Authority, New York, NY,for Defendant-

25

Appellee MTA Long Island Bus.

26

27

28

29 BARRINGTON D. PARKER, Circuit Judge:

30

These consolidated appeals address issues relating to a municipality's obligations under

31

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., when paratransit

32 services beyond those required by the ADA are reduced. Paratransit services are public

33 transportation services for disabled users. In both Abrahams v. MTA Long Island Bus and Cruz

34 v. Nassau County, plaintiffs sued defendants Nassau County, New York and/or MTA Long

35 Island Bus (the "MTA"), asserting claims under the ADA and the Rehabilitation Act of 1973,29

2

I U.S.C. § 701 et seq. The gravamen of the lawsuits is that defendants implemented substantial

2 reductions in paratransit services without allowing for the public participation by users of the

3 services required by ADA regulations, and failed to make reasonable modifications to existing

4 services so as to ameliorate the effect of the service reductions.

5

The United States District Court for the Eastern District of New York (Feuerstein, J.)

6 dismissed both cases on the grounds that the regulations did not apply to the service cuts in

7 question and that the reasonable modifications requirement did not apply to paratransit services.

8 This appeal followed. We affirm.

9

BACKGROUND

10

The ADA requires municipalities to provide paratransit and other special transportation

II services to individuals whose disabilities do not permit them to use the regular fixed routes. See

12 42 U.S.C. § 12143(c)(I). The level of this service must be "comparable" to that afforded riders

13 who are not disabled. 49 C.F.R. § 37.3. Under an operating agreement with Nassau County, the

14 MTA provides public transportation services in the County. Entities providing such services are

15 required by the ADA to submit to the Federal Transit Administration ("FTA") "a plan for

16 providing paratransit and other special transportation services" to disabled individuals. 42

17 U.S.C. § 12143(c)(7). The ADA also requires public entities to ensure that particular public

18 participation procedures are utilized in developing their initial plan. See 49 C.F.R. § 37.137(b).

19 These procedures include outreach, consultation with individuals with disabilities, opportunity

20 for public comment, and a public hearing. 49 C.F.R. § 37.137(b)(1)-(4).

3

1

In response to the ADA's requirements, defendants in 1998 developed and later

2 implemented an ADA Compliance Plan. There is no indication in the record that the required

3 public participation did not occur in the development of defendants' initial paratransit plan. As

4 part of the plan, defendants offered a paratransit service called "Able-Ride," which provided

5 door-to-door service to disabled riders. Able-Ride provided service both to areas required by the

6 ADA (the "ADA service area") and to areas outside that service area. Specifically, although the

7 ADA's implementing regulations only require a municipality to offer paratransit services within

8 three-quarters of a mile of a fixed route, see 49 C.F.R. § 37.13I(a)(I)(i), Able-Ride transported

9 disabled residents door-to-door anywhere within Nassau County. In other words, under the plan,

10 defendants provided a level of service that not only fully complied with, but substantially

11 exceeded, what the ADA required. The FTA approved the plan and in 2004 concluded that

12 defendants were in full compliance with the ADA.

13

Plaintiffs are disabled residents of Nassau County who qualify for the Able-Ride

14 program. They all suffer from a variety of serious mental and physical ailments, including

15 cerebral palsy, depression, mild mental retardation, and permanent blindness. Several plaintiffs

16 are on kidney dialysis, which substantially limits their mobility and necessitates the use of a

17 driver to attend medical appointments. Many of the plaintiffs also depend on a wheelchair. All

18 plaintiffs regularly used Able-Ride as their primary mode of transportation to or from locations

19 outside the ADA service area.

20

Around 2010, Nassau County, like many other municipalities, was experiencing

21 substantial budget shortfalls necessitating reductions in government spending in a variety of

4

1 areas. Paratransit service offered to locations not required by the ADA was one of the areas

2 targeted for cuts.

3

In January 2010, MTA officials met with a group known as the Accessible

4 Transportation Oversight Committee ("ATOC"), an advisory committee that includes people

5 with disabilities, many of whom used the Able-Ride service, and notified them in a general way

6 of impending service cuts. Additional specific information was promised for a subsequent

7 March meeting. In February, the MTA distributed notices on Able-Ride vehicles advertising a

8 March 1,2010 public hearing regarding, among other things, proposed changes in the MTA's

9 level of services. The public hearing notice also stated that "other service-related changes ...

10 that may also affect the operation and general provision of service of ... Able-Ride" were

11 among "the proposed changes," and that "[a]lthough these proposed changes do not require

12 public hearing, they are described in informational material available on the MTA website."

13 Plaintiffs contend that such a disclaimer discouraged individuals with disabilities from attending

14 the March 1 hearing, which was attended by few such individuals. The ATOC held a subsequent

15 meeting on March 9, 2010 to explain the service cuts. The next day, the MTA notified all Able-

16 Ride users by letter of the impending cuts. A short while later, the MTA eliminated most of the

17 Able-Ride service beyond the ADA service area.

18

Plaintiffs contend that defendants' steps in implementing the service cuts were

19 insufficient and violated 49 C.F.R. § 37.137(c), a Department of Transportation ("DOT")

20 regulation, promulgated pursuant to the ADA, which requires public entities to provide an

21 "ongoing mechanism for the participation of individuals with disabilities in the continued

5

1 development and assessment of services to persons with disabilities." Specifically, plaintiffs

2 allege that defendants violated the regulation by deciding to implement the service cuts without

3 consulting with plaintiffs or other disabled individuals in Nassau County who used the Able-

4 Ride service. In addition, the Cruz plaintiffs contend that by failing to prioritize Able-Ride

5 services outside the ADA service area so as to provide services to individuals who have the

6 greatest need for them, defendants violated 28 C.F.R. § 35.130(b)(7), the Department of Justice's

7 ("DOJ") "reasonable modifications" regulation, which was also promulgated pursuant to the

8 ADA.

9

Both the Cruz and the Abrahams plaintiffs moved for preliminary injunctions. The

10 County and the MTA opposed the motions and moved to dismiss the complaints. The County

11 argued that it was not a proper party, contending that, under its agreement with the MTA, the

12 MTA is the entity that provides paratransit services in Nassau County and that the MTA is the

13 only entity that has the unqualified right to establish and change the paratransit services in

14 question.! The MTA argued that no private right of action exists under the ADA to enforce the

15 DOT's public participation regulations and that, even if a right does exist, no violation of the

16 regulations occurred. The MTA also argued that the Cruz plaintiffs' reasonable modification

17 claim failed because the reasonable modifications regulation, which was promulgated by the

! Although the County is named as a party in the Cruz plaintiffs' appeal, it did not submit briefing or appear for oral argument. Instead, the County informed the Court that it took no position on the appeal because under its Lease and Operating Agreement with the MTA, it is bound to defer to the MTA for all operating determinations.
6

I Attorney General, did not apply to services such as paratransit services, that fell within the

2 exclusive purview ofthe Secretary of Transportation.

3

The district court denied interlocutory relief and dismissed the complaints under Federal

4 Rule of Civil Procedure 12(b)(6). It held that the public participation regulations only apply to

5 the development of a paratransit plan, not to subsequent modifications, reasoning that although

6 public participation may be required under the ADA's regulations if an entity is not yet in

7 compliance with the ADA, entities in full compliance (such as defendants) that elect to provide

8 services above and beyond what the ADA requires are not subject to this obligation.2 Finding

9 the public participation regulations inapplicable, the district court did not reach the question of

10 whether the DOT's ongoing public participation regulation could be enforced through a private

II right of action. As to the Cruz plaintiffs' reasonable modification claim, the district court found

12 28 C.F.R. § 35.130(b)(7), the DOJ's regulation requiring reasonable modifications, inapplicable

13 because, in the court's view, paratransit services were under the exclusive authority of the

14 Secretary of Transportation. Finally, finding that plaintiffs had failed to state a claim upon

15 which relief could be granted, the district court denied plaintiffs' motions for preliminary

16 injunctions. This appeal followed.

17

2 Under 49 C.F.R. § 37.l35(c), public entities are required to submit an annual update to their paratransit plan. However, "[i]f an entity has met and is continuing to meet all requirements for complementary paratransit ... the entity may submit to FTA an annual certification of continued compliance in lieu of a plan update ... [and] [t]he requirements of §§ 37.137(a) and (b) ... do not apply when a certification is submitted under this paragraph." 49 C.F.R. § 37.l35(c)(I).
7

1

DISCUSSION

2

We review a district court's dismissal of a complaint for failure to state claim de novo.

3 Miller v. WolpoJf& Abramson. L.L.P., 321 F.3d 292,300 (2d Cir. 2003). We review a district

4 court's denial of a preliminary injunction for abuse of discretion. Metro. Taxicab Bd. o/Trade v.

5 City o/New York, 615 F.3d 152, 156 (2d Cir. 2010). A district court abuses its discretion when it

6 rests its decision on an error oflaw or clearly erroneous finding of fact. ld. at 508.

7

We first consider whether a private right of action exists to enforce 49 C.F.R. §

8 37.137(c), the DOT's ongoing public participation regulation. Although the district court did not

9 address this issue, we conclude that it is appropriate for us to do so. "[W]e may affirm a decision

l O o n any grounds supported in the record, even if it is not one on which the trial court relied." 10

II Ellicott Square Court Corp. v. Mountain Valley lndem. Co., 634 F.3d 112, 125 (2d Cir. 2011);

12 see also Price v. City o/Stockton, 390 F.3d llO5, 1108 (9th Cir. 2004) (reaching issue of

13 whether statute created private right of action even though district court failed to address the

14 issue in first instance). Second, we consider whether defendants were obligated to restructure

15 the Able-Ride program so as to make ''reasonable modifications ... to avoid discrimination on

16 the basis of disability." 28 C.F.R. § 35.l30(b)(7). Both issues are matters offust impression in

17 our Circuit.

18

19

20

8

1

I.

Statutory and Regulatory Framework3

2

Congress passed the ADA to provide "a clear and comprehensive national mandate forthe

3 elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101 (b)(1).

4 Title II of the ADA covers discrimination in the provision of public services and is divided into

5 Parts A and B. See 42 U.S.C. § 12131 et seq. Part A governs public services generally. It

6 provides that "no qualified individual with a disability shall, by reason of such disability, be

7 excluded from participation in or be denied the benefits of the services, programs, or activities of

8 a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.

9 Section 12134(a) gives the Attorney General the authority to promulgate regulations to

10 implement Part A. 42 U.S.C. § 12134(a).

11

Part B of Title II specifically governs the provision of public transportation services. See

12 42 U.S.C. §§ 12141-12165. Section 12143, the provision governing paratransit services,

13 requires public entities operating fixed route transportation systems to provide disabled persons

14 with paratransit services that are "comparable to the level of designated public transportation

15 services provided to individuals without disabilities." 42 U.S.C. § 12143(a). Failure to do so

16 "shall be considered discrimination for purposes of section 12132." Id.

17

The Secretary of Transportation has the exclusive authority to issue final regulations

18 implementing Part B. See 42 U.S.C. §§ 12143(b), 12149, 12164. Section 12143(c) sets out the

3 Plaintiffs assert claims under both Title II of the ADA and Section 504 of the Rehabilitation Act. Because the ADA and the Rehabilitation Act impose nearly identical requirements, we focus on the ADA but our analysis applies to the Rehabilitation Act as well. See HenriettaD. v. Bloomberg, 331 F.3d 261,272 (2d Cir. 2003); Rodriguez v. City o/New York, 197 F.3d 611,618 (2d Cir. 1999).
9

1 required content of the regulations issued to implement the paratransit provision. Section

2 12143(c)(6), labeled "Public participation," provides that "[tlhe regulations issued under this

3 section shall require that each public entity which operates a fixed route system hold a public

4 hearing, provide an opportunity for public comment, and consult with individuals with

5 disabilities in preparing its [paratransitl plan under paragraph (7)." Paragraph (7) directs the

6 issuance of regulations requiring public entities to (1) submit and commence implementation of

7 an initial plan that meets the requirements of the ADA and (2) submit an annual update to any

8 such plan. 42 U.S.C. § 12143(c)(7). Section 12143(e)(I) provides that the term

9 "discrimination," as used in § 12143(a), includes "a failure of a public entity ... to submit, or

10 commence implementation of, a plan in accordance with subsections (c)(6) and (c)(7)." 42

11 U.S.C. § 12143(e)(I).

12

In response to § 12143, the Secretary of Transportation promulgated regulations

13 governing the provision of paratransit services, including regulations concerning the required

14 paratransit service area and the development and submission of paratransit plans. See 49 C.F.R.

15 §§ 37.131, 37.135, 37.137. The DOT regulations require that a public entity ''provide

16 complementary paratransit service to origins and destinations within corridors with a width of

17 three-fourths of a mile on each side of each fixed route." 49 C.F.R. § 37.131(a)(I)(i). However,

18 public entities are also permitted to provide "additional service" beyond that required by the

19 ADA and the DOT regulations. 42 U.S.C. § 12143(c)(5); 49 C.F.R. § 37.131(g). In developing

20 its initial paratransit plan, the DOT regulations require an entity to ensure that particular public

10

1 participation procedures are utilized. See 49 C.F.R. § 37.137(b).4 Under 49 C.F.R. § 37.137(c),
2 the entity must also permit the participation of people with disabilities in the ongoing
3 "development and assessment" of paratransit services. "This includes, but is not limited to, the
4 development of the initial plan, any request for an undue financial burden waiver, and each
5 annual submission." 49 C.F.R. § 37.137(c). Section 37.137(c)'s ongoing requirement of public
6 participation is at the heart of this dispute.
7 II. Public Participation Claims
4 Those procedures are:
(1) Outreach. Each submitting entity shall solicit participation in the development of its plan by the widest range of persons anticipated to use its paratransit service. Each entity shall develop contacts, mailing lists and other appropriate means for notification ofopportunities to participate in the development ofthe paratransit plan;
(2) Consultation with individuals with disabilities. Each entity shall contact individuals with disabilities and groups representing them in the community. Consultation shall begin at an early stage in the plan development and should involve persons with disabilities in all phases ofplan development. All documents and other information concerning the planning procedure and the provision ofservice shall be available, upon request, to members ofthe public, except where disclosure would be an unwarranted invasion of personal privacy;
(3) Opportunity for public comment. The submitting entity shall make its plan available for review before the plan is finalized. In making the plan available for public review, the entity shall ensure that the plan is available upon request in accessible formats;
(4) Public hearing. The entity shall sponsor at a minimum one public hearing and shall provide adequate notice ofthe hearing, including advertisement in appropriate media, such as newspapers of general and special interest circulation and radio announcements ....
49 C.F.R. § 37.137(b)(1)-(4).
11

1

Plaintiffs advance three argwnents regarding their public participation claims: first, that a

2 private right of action exists to sue for violations of the DOT's ongoing public participation

3 regulation; second, that the district court erred in concluding that the public participation

4 requirements did not apply to additional services; and third, that defendants violated § 37.137(c)

5 by failing to create an adequate mechanism of public participation before eliminating the

6 portions of the Able-Ride service not required by the ADA. As set forth below, we are not

7 persuaded that a private right of action exists. Because this conclusion resolves the appeal, we

8 need not reach the remaining argwnents.5

9

Our analysis is driven by Alexander v. Sandoval, 532 U.S. 275 (2001). In Sandoval, the

10 Supreme Court addressed whether a private right of action existed to enforce a DOJ regulation

5 Although we need not reach plaintiffs' argwnent regarding the applicability of § 37.137(c) to additional services or their argwnent concerning the regulation's precise scope in light of our holding that there is no private right of action, we fmd it appropriate to make two observations here. First, although the district court held that the ongoing public participation requirement does not apply to additional services, at oral argwnent, the MTA's counsel seemed to concede that it in fact did apply and that § 37.137(c) imposed an "obligation" on the MTA that did not exclude the additional service changes. See Tr. of Oral Arg. at 20, 27, 28. The MTA's counsel simply argued that the public participation process it used in making these service changes met the requirements of § 37.137(c).
Second, although we are not called to adjudicate the precise scope of § 37.137(c), we observe that in order for an ongoing public participation requirement to have teeth, it must require more than a mere notification of service change (which is all that plaintiffs allege occurred here). Indeed, we agree with plaintiffs' counsel's statement at oral argwnent that the drafters of the ADA could not have intended that the statute's public participation requirements be satisfied by a mere "meaningless gesture." Tr. of Oral Arg. at 39. However, it is unclear to us whether the regulation requires advance notice and an opportunity to be heard regarding every proposed change in service (as plaintiffs seem to suggest), or whether it merely requires a continuing ability to comment on the assessment of a public entity's paratransit services (as the MTA seems to suggest). Due to the ambiguity in the DOT regulations in this area, we believe that the DOT might wish to examine and clarify the scope of § 37.137(c)'s ongoing public participation requirement.
12

1 promulgated pursuant to Title VI of the Civil Rights Act of 1964. ld. at 278. Section 601 of

2 Title VI barred recipients of federal funding from intentional invidious discrimination; section

3 602 authorized the DOJ to effectuate § 601 by promulgating regulations. 42 U.S.C. §§ 2000d,

4 2000d-1. One such regulation, 28 C.F.R. § 42.1 04(b)(2), went beyond intentional discrimination

5 and prohibited recipients of federal funding from utilizing criteria which had a discriminatory

6 effect. The plaintiffs, who were non-fluent English speakers, challenged an Alabama policy of

7 administering driver's license examinations exclusively in English on the ground that the policy

8 had a discriminatory effect on non-English speakers and, consequently, violated § 42.104(b)(2).

9

The Court concluded that the regulation was not enforceable through a private right of

10 action. It first noted that "private rights of action to enforce federal law must be created by

11 Congress" and the statute in question must evidence congressional intent to create a private right

12 of action. Sandoval, 532 U.S. at 286. Absent such intent, "a cause of action does not exist and

13 courts may not create one, no matter how desirable that might be as a policy matter, or how

14 compatible with the statute." ld. at 286-87.

15

Next, the Court observed that although it previously had held that Congress intended

16 § 601 to be enforceable through a private right of action, that right did not automatically extend

17 to the statute's implementing regulations. "Language in a regulation may invoke a private right

18 of action that Congress through statutory text created, but it may not create a right that Congress

19 has not." ld. at 291. Concluding that § 601 prohibited only intentional discrimination, the Court

20 held that the discriminatory effect regulation was not enforceable through private action under

21 § 601 because the regulation did not simply apply § 601's prohibition on intentional

13

I discrimination but went further and prohibited conduct that § 601 did not. Id. at 285,293. In

2 other words, the Court held that the private action available for enforcing § 60 I did not extend to

3 a regulation that substantively expanded the provision.

4

The implications of Sandoval are clear: If a private right of action exists to enforce the

5 DOT's "public participation" regulation, plaintiffs must show that the right originates in 42

6 U.S.C. § 12143, the underlying statute regulating paratransit services. Plaintiffs must also show

7 that the regulation applies-but does not expand-the statute.

8

Although the Supreme Court has never addressed whether § 12143 supports a private

9 right of action, it held in Barnes v. Gorman, 536 U.S. 181 (2002), that Congress intended to

10 create a private right of action to enforce 42 U.S.C. § 12132, Title IT's general anti-

11 discrimination provision. See id. at 184-85 ("Thus, the remedies for violations of § 202 of the

12 ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private

13 cause of action brought under Title VI of the Civil Rights Act of 1964 ...."). In this Circuit,

14 "[t]o discover whether Congress intended that the Act be enforceable by a private right of action,

15 we look to the 'text and structure' of the statute." George v. NY.C. Dep't oJCity Planning, 436

16 F.3d 102, 103 (2d Cir. 2006); see Olmsted v. Pruco Life Ins. Co. oJNJ., 283 F.3d 429, 432 (2d

17 Cir. 2002) ("The Supreme Court has established that courts must look to the intent of Congress

18 in determining whether a federal private right of action exists for violations of a federal

19 statute."). As we have noted, 42. U.S.C. § 12132 broadly bars discrimination on the basis of

20 disability in the services, programs, or activities ofa public entity. Section 12143 defmes

21 "discrimination" "for purposes of section 12132" as follows:

14

I

It shall be considered discrimination . . . for a public entity which

2

operates a fixed route system (other than a system which provides solely

3

commuter bus service) to fail to provide with respect to the operations

4

ofits fixed route system, in accordance with this section, paratransit and

5

other special transportation services to individuals with disabilities,

6

including individuals who use wheelchairs, that are sufficient to provide

7

to such individuals a level of service (I) which is comparable to the

8

level ofdesignatedpublic transportation services provided to individuals

9

without disabilities using such system; or (2) in the case of response

10

time, which is comparable, to the extent practicable, to the level of

II

designated public transportation services provided to individuals without

12

disabilities using such system.

13

14 42 U.S.C. § 12143(a). By tying this subsection to the definition of discrimination in § 12132, we

15 conclude that Congress intended the statute to confer a private right of action to enforce § 12143,

16 including § 12143(c)(6)'s public participation requirements. See 42 U.S.C. § 12143(e) (defining

17 a failure to provide public participation under subsection (c)(6) as "discrimination" under §

18 12143(a) of the ADA).

19

Having found a private right of action under § 12143, we now must determine whether

20 49 C.F.R. § 37.137(c), the regulation promulgated pursuant to § 12143 that requires ongoing

21 public participation in the management of paratransit services, enforces § 12143 or imposes

22

obligations not found in the statute.6

6 To the extent that plaintiffs argue that we should instead look to whether 49 C.F.R. § 37.137 as a whole implements 42 U.S.C. § 12143, we disagree. Although it is true that 49 C.F.R. § 37.137(a) and (b) are more closely tied to the ADA's statutory language, it cannot be the case that § 37.137(c) can simply piggyback on these subsections for purposes of determining whether there is a private right of action to enforce § 37.137(c) if the regulation itself does not effectuate 42 U.S.C. § 12143. See Am. Ass 'n ofPeople with Disabilities v. Harris, 605 F.3d 1124, 1135 n.24 (11th Cir. 2010) (noting that Sandoval requires courts to "examin[e] each regulation individually to see if it evinced congressioual intent to enforce the regulations through a private right of action" and noting that Sandoval should not be applied "in a categorical manner to several ADA regulations").
15

1

Looking first to the language of § 12143, we see that the statute requires public

2 participation in connection with the development and submission of a public entity's initial

3 paratransit plan and annual plan updates. But that is all § 12143 requires in terms of public

4 participation; it does not require any other ongoing form of public participation. Section 12143

5 contains a single reference to public participation: "The regulations issued under this section

6 shall require that each public entity which operates a fixed route system hold a public hearing,

7 provide an opportunity for public comment, and consult with individuals with disabilities in

8 preparing its plan under paragraph (7)." 42 U.S.C. § 12143(c)(6) (emphasis added). Paragraph

9 (7) requires that public entities submit an initial plan for meeting the requirements of the ADA,

10 see id. § 12143(c)(7)(A), and an annual update, see id. § 12143(c)(7)(B). Reading §§

11

12143(c)(6) and 12143(c)(7) together, it is apparent that the statue's public participation

12 requirements only apply when a public entity is submitting its initial plan or an annual plan

13 update. But neither of these situations applies to the MTA. It is undisputed that the MTA had

14 already developed, submitted, and implemented an ADA-compliant paratransit plan, and because

15 the plan was ADA-compliant, the MTA was not obligated to submit an annual plan update. See

16 49 C.F.R. § 37.135(c)(I). Therefore, the MTA fully satisfied § 12143's public participation

17 requirements.

18

Turning to the regulation at issue, we find that it does not "simply apply" the express

19 mandate of § 12143. See Sandoval, 532 U.S. at 285. To the contrary, by its own terms, the

20 "ongoing requirement" of 49 C.F.R. § 37.137(c) has a broader application than the

21 implementation of an initial plan or the submission of annual updates. See 49 C.F.R. § 37.137(c)

16

1 ("The entity shall create an ongoing mechanism for the participation of individuals with

2 disabilities in the continued development and assessment ofservices to persons with disabilities.

3 This includes, but is not limited to, the development of the initial plan, any request for an undue

4 fmancial burden waiver, and each annual submission." (emphasis added)). Tellingly, a public

5 entity may be in full compliance with § 12143's public participation requirements, while

6 simultaneously violating § 37.137(c)'s ongoing public participation requirement.

7

Although § 37.137(c) may create a procedural requirement that a public entity permit

8 ongoing public participation in developing and assessing the paratransit services it offers to

9 individuals with disabilities, the absence of such a requirement from § 12143 indicates that

10 Congress did not provide that an entity's failure to do so constituted discrimination under

11

§ 12143. If this failure to permit public participation does not constitute discrimination under

12 § 12143, § 37.137(c) may not, we hold, be enforced in a private right of action based on

13

§ 12143.7

14 ill. The Cruz Plaintiffs' Reasonable Modification Claim

15

We now tum to the Cruz plaintiffs' contention that defendants' failure to modify the

16 Able-Ride program so as to permit plaintiffs to continue to use the service beyond the ADA

7 In reaching this conclusion, we follow the other circuits that have found no private right of action to enforce a regulation that creates obligations that are not imposed by the regulation's controlling statute. See Lonberg v. City ofRiverside, 571 F.3d 846,850-52 (9th Cir. 2009) (finding no private right of action to enforce a regulation of the ADA ''through § 202's private right of action because the obligations [the regulation] imposes are nowhere to be found in § 202's plain language"); Iverson v. City ofBos., 452 F.3d 94,100 (1st Cir. 2006) ("Under Sandoval . .. a private plaintiffmay not, merely by referencing the organic statute, enforce regulations that interdict a broader swath of conduct than the statute itselfprohibits.").
17

1 service area violated 28 C.F.R. § 35. 130(b)(7), the reasonable modifications provision

2 promulgated pursuant to the ADA. The resolution of this question depends on whether the ADA

3 requires a public entity to make reasonable modifications to "additional services."

4

As previously mentioned, the Attorney General has the exclusive authority to promulgate

5 regulations to implement Part A ofTitle II of the ADA. See 42 U.S.C. § 12134(a). One such

6 regulation, 28 C.F.R. § 35.130(b)(7), requires a public entity to "make reasonable modifications

7 in policies, practices, or procedures when the modifications are necessary to avoid discrimination

8 on the basis of disability, unless the public entity can demonstrate that making the modifications

9 would fundamentally alter the nature of the service, program, or activity." The Secretary of

10 Transportation has the authority to issue final regulations implementing Part B of Title II,

11 including regulations governing the provision of paratransit services. See 42 U.S.C. §§

12 12143(b), 12149, 12164. To date, the Secretary of Transportation has not promulgated

13 regulations requiring public entities to make reasonable modifications to avoid discriminating

14 against disabled individuals. See 49 C.F.R. pt 37.

15

The district court held that because the provision of paratransit services is covered by

16 Part B, public entities that provide paratransit services are not subject to the reasonable

17 modifications regulation issued by the Attorney General. As the district court also noted, two

18 other circuits have reached the same conclusion, albeit in the context of required services. See

19 Boose v. Tri-County Metro. Transp. Dist. ofOr., 587 F.3d 997, 1002 (9th Cir. 2009); Melton v.

20 Dall. Area Rapid Transit, 391 F.3d 669,675 (5th Cir. 2004).

18

1

The Cruz plaintiffs argue that this analysis fails because paratransit rides to areas outside

2 the ADA service area qualify as "additional services," which are not governed by 42 U.S.C.

3 § l2l43(c). Therefore, the Cruz plaintiffs assert, the provision of additional services is not under

4 the exclusive regulatory authority of the Secretary ofTransportation. They contend that DOT

5 regulations, specifically 49 C.F.R. § 37.21(c), support this conclusion. The regulation provides:

6

7

Entities to which this part applies also may be subject to ADA regulations of the

8

Department of Justice (28 CFR parts 35 or 36, as applicable). The provisions of

9

this part shall be interpreted in a manner that will make them consistent with

10

applicable Department of Justice regulations. In any case of apparent

11

inconsistency, the provisions of this part shall prevail.

12

13 49 C.F.R. § 37.21(c). Because the requested modification to Able-Ride is not inconsistent with

14 DOT regulations, the argument goes, the MTA is subject to the DOJ's reasonable modifications

15 requirement.

16

We are not persuaded. The conclusion that paratransit services, including "additional

17 services," are covered by the DOJ regulations would be incompatible with 42 U.S.C. § l2134(a),

18 the statute under which the DOJ reasonable modifications regulation was promulgated. Section

19 12134 provides that the DOJ regulations "shall not include any matter within the scope o/the

20 authority of the Secretary of Transportation." 42 U.S.C. § l2134(a) (emphasis added). The

21 "additional service" in question clearly falls under that Secretary's authority.' See 42 U.S.C.

22 § 12l43(c)(5). Accordingly, we read § 12134 to mean that the DOJ's reasonable modifications

, While not explicitly conceding this point, the Cruz plaintiffs' do not seem to argue that the Able-Ride service at issue here is not within the Secretary of Transportation's scope of authority. Indeed, such a position would cut against the merits of plaintiffs' public participation claim. Specifically, a holding that additional services are not within the Secretary's authority would seem to foreclose any claim that additional services are subject to the DOT's regulations requiring public entities to provide a mechanism for ongoing public participation.
19

1 regulation does not apply to public entities providing paratransit services outside the ADA

2 service area.

3

In addition, consistent with § 12134's statutory limitation on the scope ofDOJ authority,

4 the DOJ specifically provides that its regulations do not apply to areas that are "covered by

5 subtitle B of title II of the ADA." 28 C.F.R. § 35.l02(b).9 Although it is true that the DOT

6 regulations at least acknowledge that public entities that provide transportation services "may be

7 subject to ADA regulations of the Department of Justice" and that the DOT regulations shall be

8 interpreted to be consistent with "applicable Department of Justice regulations," 49 C.F.R.

9 § 37.21 (emphasis added), we find this language too conjectural and imprecise to demonstrate

10 actual incorporation. On other occasions the DOT has promulgated regulations requiring private

11

entities to "compl[y1with the requirements of the rules of the Department of Justice concerning

12 eligibility criteria, making reasonable modifications, providing auxiliary aids and services, and

13 removing barriers (28 C.F.R. §§ 36.301-306)." 49 C.F.R. § 37.5(t). If the DOT wishes to

9 Interpreting the term "covered" in its most restrictive sense, the Cruz plaintiffs seem to argue that this regulation is not applicable because additional services are not "covered" under Part B. Although, when read alone, one could reasonably interpret the term "covered" to only include services that are specifically addressed by the DOT regulations, such a restrictive interpretation would be entirely inconsistent with the text of the DOJ regulations' authorizing statute, which exempts all matters within the Secretary's scope ofauthority. See 42 U.S.C. § 12134(a). Based on our reading of 42 U.S.C. § 12134, we are unable to accept the Cruz plaintiffs' restrictive interpretation. See Ins. Co. ofN Am. v. Gee, 702 F.2d 411, 414 (2d Cir. 1983) ("Regulations promulgated pursuant to rulemaking authority conferred by statute assume the force of law only to the extent consistent with the statutory scheme they were designed to implement.").
20

I incorporate by reference DOJ regulations, we are confident that it knows how to do so. See

2 Boose, 587 F.3d at 1004.10

3

CONCLUSION

4

For the foregoing reasons, the judgments of the district court are AFFIRMED.

10 Nothing in our holding should be construed as an opinion on whether the DOJ reasonable modifications regulation is appropriate or necessary for paratransit services. We simply hold that under the DOJ regulations and the statutory provision under which they were authorized, the reasonable modifications requirement of § 35.130(b)(7) is inapplicable to paratransit services. If the DOT determines that such a requirement may be desirable for paratransit services, it is, of course, free to address that issue during, for example, its rule-making processes.
21