Tag: ADA

Preparing for a Wave of Meritless Motions: A Quick Guide to Why Title II, Title III, and Section 504 Regulations Survive Loper Bright.

Posted on by Amy Robertson

This post provides a very quick overview of why I think the regulations implementing Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 – 12189, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, will survive largely intact in the wake of the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, 2024 WL 3208360, 144 S. Ct. 2244 (2024), overruling the 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This comes with the caveat that, in a sense, nothing is safe: the Court does not seem bound by even its own recent precedent. But starting from the premise that they meant what they said in Loper Bright – at least for now! – I believe we can continue to rely on Section 504, Title II, and Title III regulations (the “Regulations”). 

That said, it seems likely that our opposing counsel – especially private counsel – will sense the opportunity for delay and billable hours offered by dispositive motions premised on the counterfactual demise of these regulations. The goal of this overview is to provide a quick research guide to opposing these motions. As a side effect, I’m hoping it provides a bit of reassurance to my beloved community in the current stressful legal environment.

For further reassurance, here is a photo of a golden retriever puppy, sticking her tongue out at attempts to undermine valid regulations.

With this post comes an offer of help: if you face a motion to dismiss or for summary judgment challenging one or all of the Regulations under Loper Bright, I would be happy to kibitz or, if appropriate, file an amicus brief. Indeed, some of the research below came from an amicus brief I co-wrote with an amazing team of colleagues including Claudia Center, Karla Gilbride, Arlene Mayerson, Susan Mizner, Carly Myers, and Justin Ormand. Any errors and of course all of the snark are mine.

CW: This post provides a starting point for research only. It is by no means complete and I will likely continue to update it, especially if I get useful feedback from the community. Always cite check your work! 

Summary

Chevron, very roughly speaking, required courts to defer to agency interpretations of ambiguous statutory language. Loper Bright overruled this holding, stating that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Id. slip op. at 35, 2024 WL 3208360 at **22. That said, Loper Bright did two things that will help ensure the continued viability of the Regulations. First, it recognized that Congress could expressly delegate authority to an agency to promulgate regulations, which authority the Court would respect “consistent with constitutional limits,” id.; and second, it stated that it did not “call into question” the holdings in earlier cases that “relied on the Chevron framework” to hold that “specific agency actions are lawful,” id. slip op. at 34, 2024 WL 3208360 at **21.  

Starting in 1968 with the Architectural Barriers Act, and continuing through the Rehabilitation Act of 1973, its several re-enactments, and the Americans with Disabilities Act of 1990, Congress has enacted strong protections for the rights of people with disabilities to architectural and programmatic access in recipients of federal funding, federal and state government agencies, and private businesses. In so doing, it has explicitly delegated to a number of federal agencies the authority to issue regulations implementing these statutes. In addition, these statutes have been enacted and re-enacted either expressly incorporating and endorsing or implicitly adopting those agency regulations. Finally, Supreme Court and circuit court cases since the early 1980s have acknowledged the legal force of these regulations and adopted their interpretations of their respective statutes, both in reliance on Chevron and on independent grounds. 

In the short period of time since the Loper Bright decision, it has been harnessed by several conservative courts to enjoin Biden Administration regulations protecting trans individuals. The decisions have relied on Loper Bright’s holdings that courts are uniquely tasked with interpreting statutory language and that “‘every statute’s meeting is fixed at the time of enactment,’” id. slip op. at 22, 2024 WL 3208360 at **16, to reach the conclusion that “sex” at the time Title IX[1] was enacted “meant only a person’s biological sex – ‘an immutable characteristic determined solely by the accident of birth.’”[2] Texas v. Becerra, No. 6:24-CV-211-JDK, 2024 WL 3297147, at *6 (E.D. Tex. July 3, 2024) (internal citation omitted); see also Kansas v. U.S. Dep’t of Educ., No. 24-4041-JWB, 2024 WL 3273285, at *8 (D. Kan. July 2, 2024) (same); Tennessee v. Becerra, No. 1:24CV161-LG-BWR, 2024 WL 3283887, at *7 (S.D. Miss. July 3, 2024) (same, interpreting the Affordable Care Act regulations which incorporate by reference Title IX’s definition).

I do not believe the regulations implementing Section 504, Title II, or Title III face similar risk. While these statutes contain broad terms like “discrimination” which the regulations interpret in great detail – and which inaccessible programs and businesses will almost certainly argue are ambiguous – earlier versions of many those regulations were explicitly incorporated into statutory language and acknowledged as definitive in legislative history – “fixing” at least the ADA’s meaning “at the time of enactment,” Loper Bright, slip op. at 22, 2024 WL 3208360 at **16. In addition, Congress has repeatedly and expressly delegated authority to various agencies to promulgate implementing regulations, and has enacted and re-enacted the relevant statutes without disturbing settled regulatory interpretation.

Statutory History: Delegation of Authority

Congress has – in statutory language – expressly delegated authority to a number of agencies to promulgate disability rights regulations.

The earliest example of this is the Architectural Barriers Act (“ABA”) in 1968, Pub. L. No. 90-480, 82 Stat. 718 (1968) (codified at 42 U.S.C. ch. 51), mandating the promulgation of “standards for the design, construction, and alteration” of buildings constructed, altered, leased by, or financed by the federal government to ensure access for people with disabilities. 42 U.S.C. §§ 4151-4152. The statute assigned responsibility for promulgation of standards to the General Services Administration (“GSA”) and to the Departments of Housing and Urban Development (“HUD”) and Defense (“DoD”) – all in consultation with the Department of Health, Education, and Welfare (“HEW”). Pub. L. No. 90-480, §§ 2-4.

In 1973, Congress passed the Rehabilitation Act. Section 504 of that statute contains the landmark prohibition on disability discrimination by recipients of federal funding. Pub. L. No. 93-112, § 504, 87 Stat. 355 (1973) (codified at 29 U.S.C. § 794). Section 502 created the Architectural and Transportation Barriers Compliance Board (“Access Board”) and delegated to it the task of ensuring compliance with standards issued by the GSA, HUD, and DoD pursuant to the ABA. Id. § 502. The 1978 amendments to the Rehab Act specifically delegated to the Access Board authority to establish standards to implement the ABA. Pub. L. 95-602, § 502, 92 Stat. 2955 (1978) (codified at 29 U.S.C. § 792(c)(A)).  

In 1978, Congress also amended Section 504, expanding it beyond recipients of federal funding to prohibit disability discrimination by federal agencies. In so doing, it expressly instructed each agency to promulgate implementing regulations and to submit the regulations to the appropriate authorizing committees in Congress:

The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

29 U.S.C. § 794(a).

Finally, the Americans with Disabilities Act of 1990 expressly delegated authority to the Department of Justice (“DOJ”), the Department of Transportation (“DOT”), and the Access Board to promulgate implementing regulations. 42 U.S.C. §§ 12134, 12143, 12149, 12164, 12186, 12201. This delegation — which included specific reference to existing regulations — is discussed below.

Regulatory History: Consistent Interpretation

[Accessibility note: the linked copies of the older regulations are Westlaw’s scans from the Federal Register. Though they are OCR’d, I’m guessing they’ll be challenging for a screen reader. It was the only source I could find for old Federal Registers.]

The first regulations implementing Section 504 were promulgated by HEW on May 4, 1977. 42 Fed. Reg. 22676 (“HEW Regulations”). That agency first proposed these regulations in May 1976 after consulting with the relevant committees of both the House and Senate.[3] Senate hearings in that year expressly considered the scope and effectiveness of the proposals.[4] In January 1977, first HEW Secretary Mathews[5] and then HEW Secretary Califano[6] provided each member of Congress with copies of the proposed regulations and solicited their comments. Following the final promulgation of those regulations, a House subcommittee conducted further hearings on the implementation of Section 504.[7]

Following issuance of the 1977 HEW Regulations, and pursuant to Executive Order 11914, 41 Fed. Reg. 17871 (Apr. 28, 1976), that agency issued regulations that were to “coordinate governmentwide enforcement of section 504.” 43 Fed. Reg. 2132 (“HEW Coordination Regulations”). These Coordination Regulations largely tracked the original 1977 HEW Regulations. In 1981, the HEW Coordination Regulations were transferred to the DOJ, 46 Fed. Reg. 40686 (Aug. 11, 1981) and are currently codified at 28 C.F.R. pt. 41 (“DOJ Coordination Regulations”).

Pursuant to the 1978 amendment to Section 504 that required each agency to issue regulations implementing that statute as to the activities of that agency, over 100 sets of regulations have been promulgated by over 90 agencies implementing that statute as to both the agencies themselves (“agency regulations”) and recipients of their funding (“recipient regulations”). And pursuant to the requirement that agency regulations be submitted to Congress, 29 U.S.C. § 794(a), congressional committees have had the opportunity to review at least 70 sets of Section 504 regulations. All of these regulations are based on and very similar to the HEW (now DOJ) Coordination Regulations. A working chart of these regulations was included as an appendix to the amicus brief referenced above.

Finally, pursuant to the instructions in the statutory text of the ADA, the DOJ, the DOT, and the Access Board have issued regulations implementing that Act.

Statutory Language Referencing and Instructing Consistency with Existing Regulations.

In passing the Americans with Disabilities Act, Congress not only expressly delegated authority to the DOJ, the DOT, and the Access Board, it took the further step of instructing those agencies to issue regulations consistent with existing regulations, effectively endorsing and incorporating those regulations.

Title II of the ADA instructed the DOJ to issue regulations consistent with the 1978 HEW Coordination Regulations and the (presumably then-applicable 1990) DOJ agency regulations:

Except for “program accessibility, existing facilities”, and “communications”, regulations under subsection (a) shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29. With respect to “program accessibility, existing facilities”, and “communications”, such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under section 794 of Title 29.

42 U.S.C. § 12134(b). The statute directed the DOJ to issue regulations implementing Title III that were consistent with minimum accessibility guidelines to be issued by the Access Board:

Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204 of this title.

Id. § 12186(c). It then instructed the Access Board to issue regulations consistent with its earlier Minimum Guidelines and Requirements for Accessible Design:

[T]he Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter.

Id. § 12204(a). Both Titles II and III of the ADA also delegate to the DOT the task of promulgating regulations relating to public and private transportation services. 42 U.S.C. §§ 12143(b), 12149(a), 12164(a), 12186(a).

Finally — and most significantly — the ADA directs that the statute as a whole is not to be construed to apply a lower standard than that of the Section 504 regulations:

Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.

Id. § 12201(a).

While there is a good deal of caselaw addressing the situation that occurs when Congress re-enacts a statute against the backdrop of consistent regulatory interpretation, see infra, there is surprisingly little addressing the much more compelling situation in which a new or re-enacted statute explicitly refers to earlier regulations, instructing future regulations to conform. The key Supreme Court case, widely cited, is United States v. Board of Commissioners of Sheffield, Ala., which held, “[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.” 435 U.S. 110, 134 (1978) (Emphasis added.)

The Third Circuit applied this principle in the context of the ADA in Helen L. v. DiDario, holding:

Moreover, because Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law. When Congress re-enacts a statute and voices its approval of an administrative interpretation of that statute, that interpretation acquires the force of law and courts are bound by the regulation. … The same is true when Congress agrees with an administrative interpretation of a statute which Congress is re-enacting. … Although Title II of the ADA is not a re-enactment of section 504, it does extend section 504’s anti-discrimination principles to public entities. Furthermore, the legislative history of the ADA shows that Congress agreed with the coordination regulations promulgated under section 504.

46 F.3d 325, 332 (3d Cir. 1995) (citing Board of Commissioners; emphasis added; internal citations omitted.) That “[m]oreover” is significant, as this passage follows a Chevron analysis and suggests (properly) that this is an independent ground on which to defer to the 504 Coordination Regulations. See also Hikvision USA, Inc. v. Fed. Commc’ns Comm’n, 97 F.4th 938, 947 n.5 (D.C. Cir. 2024) (Congress enacted a statute explicitly incorporating a list of banned equipment previously identified by the FCC; quoting Board of Commissioners; holding, “The same principles apply with even greater force here, where Congress so clearly intended to incorporate the existing” list).  

Significance of Re-enactment

Congress has re-enacted Section 504 on numerous occasions and the ADA once since their original passage, at no time calling into question the interpretation in the then-applicable regulations. When this occurs, the regulations are entitled to deference under the legislative re-enactment doctrine. See, e.g. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” (emphasis added; quoting NLRB, infra)); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change” (emphasis added)); NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267, 274–75 (1974) (“In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has re-enacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress. We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.”).

Legislative History: Additional Support

In the legislative history of the 1974 amendments to the Rehabilitation Act, Congress stated that Section 504 “does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended.” S. Rep. No. 93-1297 (1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (emphasis added). That Report directed that federal agencies cooperate in “developing standards and policies” for Section 504, and directed HEW to coordinate this effort. Id. at 6391.

In the legislative history of the 1978 re-enactment, Congress specifically referred to the HEW Coordination Regulations and noted that, in light of these regulations, the “amendment codifie[d] existing practice as a specific statutory requirement.” S. Rep. No. 95-890 at 19 (1978). The report also explained that the remedies provision was “designed to enhance the ability of handicapped individuals to assure compliance with . . . [Section 504] and the regulations promulgated thereunder.” Id. at 18.

In the legislative history of the ADA, Congress explained that the purpose of Title II was to “make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services” of state and local government, H.R. Rep. No. 101-485(II) at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 366 (emphasis added).

Key Provisions of Early Regulations

The regulations that Congress expressly recognized in the text of the ADA – the 1978 HEW Coordination Regulations, the 1990 DOJ regulations, and the MGRAD – include many of the principles that remain crucial to enforcing Section 504 and Titles II and III, including (but of course not limited to) the following. Note: citations are to the regulations incorporated by reference in the ADA, 42 U.S.C. § 12201(a); materially identical requirements can be found throughout Section 504 regulations starting in 1977.

  1. Prohibition on denying opportunity to participate, providing unequal opportunity, providing benefit that is not as effective as that provided to others, or providing different or separate benefits. 45 C.F.R. § 85.51(b)(1)(1978).
  2. Prohibition on using criteria or methods of administration that have a discriminatory effect. Id. § 85.51(b)(3).
  3. Prohibition on doing those things “directly or through contractual, licensing, or other arrangements.” Id.
  4. Requirement that programs and activities be administered in “the most integrated setting appropriate.” Id. § 85.51(d).
  5. Requirement of auxiliary aids to ensure effective communication, including giving primary consideration to the request of the disabled person. 28 C.F.R. § 39.160(a).
  6. Requirement of accessibility in new construction and alterations. 45 C.F.R. §§ 85.58.
  7. Requirement of program access in existing facilities. 28 C.F.R. §§ 39.149 – 39.151.
  8. Detailed accessibility standards governing new construction and alterations. MGRAD, 47 Fed. Reg. 33862 (August 4, 1982) (originally codified at 36 C.F.R. pt. 1190 (1983)).
  9. Note that the right to reasonable accommodations under Section 504 was established by the Supreme Court itself. Alexander v. Choate, 469 U.S. 287, 301 (1985).

I believe these principles now have the force of law.

Cases Expressly Deferring to HEW, DOJ, and Other Regulations

There are a number of Supreme Court and circuit court decisions deferring to the HEW and DOJ Section 504 regulations, in some cases recognizing that they have the status of law. The earliest of these, Consolidated Rail Corp. v. Darrone, noted that, in passing the 1978 amendments to the Rehab Act “Congress incorporated the substance of [HEW’s] regulations into the statute.” 465 U.S. 624, 634 n.15 (1984); see also School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 279–80 (1987) (“As we have previously recognized, these [HHS] regulations were drafted with the oversight and approval of Congress … they provide ‘an important source of guidance on the meaning of § 504.’” (Internal citations omitted)). In the seminal case of Alexander v. Choate, the Court explained that “those charged with administering the [Rehabilitation Act] [have] substantial leeway to explore areas in which discrimination against the handicapped posed particularly significant problems and to devise regulations to prohibit such discrimination.” 469 U.S. at 304 n.24.

Two more recent Supreme Court cases interpreting and applying Titles II and III of the ADA recognize the history and status of the regulations implementing those provisions. Bragdon v. Abbott addressed the question whether asymptomatic HIV fell under the ADA’s definition of disability. The case relied on the instruction in 42 U.S.C. § 12201(a) that the ADA may not be construed to apply a lesser standard than Section 504 or any of its implementing regulations to hold that this “directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” 524 U.S. 624, 631-32 (1998); see also id. (citing Darrone and holding that the HEW Coordination Regulations “are of particular significance.”)

The Bragdon Court also relied on the “consistent course of agency interpretation before and after enactment of the ADA. Every agency to consider the issue under the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV.” Id. at 642. The Court concluded: “[t]he uniform body of administrative and judicial precedent confirms the conclusion we reach today as the most faithful way to effect the congressional design.” Id. at 645. This latter analysis relied on Chevron, but should in theory be covered by Loper Bright’s reassurance that the Court would not “call into question prior cases that relied on the Chevron framework.” Id. slip op. at 34, 2024 WL 3208360, at **21.

A year later, the Court addressed the Title II regulations in Olmstead v. L.C. ex rel. Zimring, the case establishing that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” 527 U.S. 581, 597 (1999). The Court noted Congress’s instruction to the DOJ to issue regulations implementing Title II that were consistent with the HEW and DOJ Coordination Regulations. Id. at 591-92 (citing 28 C.F.R. § 41.51(d)). While the Court noted that it was not determining the validity of the regulations – as neither party challenged them – it held, “[b]ecause the [DOJ] is the agency directed by Congress to issue regulations implementing Title II  . . . , its views warrant respect.” Crucially for the purposes of this post, the Court went on to hold that it “need not inquire whether the degree of deference described in Chevron  . . . is in order; ‘[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”’” Id. 597-98 (internal citations omitted).

A number of circuit courts have also noted the statutory and regulatory history in deferring to the DOJ’s ADA regulations. See, e.g., Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003) (“Congress expressly authorized the Attorney General to make rules with the force of law interpreting and implementing the ADA provisions generally applicable to public services. See 42 U.S.C. § 12134(a). The DOJ issued its rules contemporaneously with its implementation of these provisions, using conventional notice-and-comment rulemaking procedures. … The resulting rules are therefore entitled to controlling weight unless they are procedurally flawed, substantively arbitrary and capricious, or plainly contradict the statute. … As such, the relevant DOJ rule interpreting the ADA’s anti-retaliation provision, 28 C.F.R. § 35.134, commands that same level of deference.”); Helen L., 46 F.3d at 332 (“[B]ecause Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law); Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (same, quoting Helen L.); see also Messier v. Southbury Training Sch., 916 F. Supp. 133, 141 (D. Conn. 1996) (“Additionally, when Congress, in enacting a statute, explicitly approves of prior administrative interpretations of a law, Congress is treated as having adopted such interpretations. … Thus, Congress’s instruction to the Attorney General to promulgate regulations under the ADA consistent with those promulgated under Section 504 indicates congressional approval of the above-cited specific prohibitions.”)

Conclusion

For these reasons, I believe that the 1977 and 1978 HEW Regulations, the 1990 DOJ agency regulations, and the MGRAD have the force of law. As noted above, these regulations cover a great deal of the territory we need to enforce the ADA and Section 504. Later regulations — the original Title II and Title III regulations, the 2010 DOJ regulations, and unpublished regulations such as web accessibility, medical equipment, furniture and equipment, and the PROWAG — were all promulgated (or are in the process of being promulgated) pursuant to an express delegation and all are interpretations of Section 504 and the ADA that are consistent with previous regulations that were incorporated into the statute and that have been in effect since 1977. They should have similar status to those earlier regulations.

[1] Title IX of the Education Act of 1972, 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”).

[2] The fact that this definition does not mean what conservative courts think it means – that it does not extract them from the definitional conundrum in which they have placed themselves – must be left for a different post by a writer better versed in this area. Paging Kyle Velte.

[3] Hearings on Rehabilitation of the Handicapped Programs, 1976, before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 1491, 1503-04 (1976) (hereinafter cited as “1976 Senate Hearings”.)

[4] 1976 Senate Hearings 323 (Rep. Dodd), 1502 (Sen. Williams), 1511 (Sen. Williams).

[5] Hearings on Review of Programs for the Handicapped 1976, before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 1st Sess. 73 (1977).

[6] Id. at 76.

[7] Id. at 295-6.

ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse

Posted on by Amy Robertson

[Originally published on the blog of the Civil Rights Education and Enforcement Center on February 27, 2018.]

Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights.

This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed.

H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice.

To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa. May 12, 2017) for their anti-ADA invective.

We took a closer look at the Cracker Barrel case and discovered that it presented a fairly typical example of ADA defense lawyer abuse.  The case alleged that a chain of fast food restaurants had noncompliant parking lots.  Instead of assessing and remedying these violations, Cracker Barrel’s attorneys — including several known for their serial defense of hundreds of ADA lawsuits and for proactively work against enforcement of Title III — prolonged the litigation for two and a half years with multiple, meritless motions and obstruction.

Cracker Barrel’s seven lawyers took the following actions in litigation, all of which were unsuccessful.  These lawyers’ abuse of the system is perhaps best illustrated by the fact that Cracker Barrel admitted, 14 months into the case, that “the subject properties contained barriers to access that were in need of remediation,”[1] yet continued to litigate for another year.

During the course of the litigation, Cracker Barrel and its attorneys:

  1. moved unsuccessfully to dismiss the case, ECF 10, 14, 15;[2]
  2. objected unsuccessfully to the magistrate’s ruling denying their motion to dismiss, ECF 16, 19, 23, 35;
  3. moved unsuccessfully for a protective order to prevent site visits by the plaintiff, ECF 20, 24, 26, 36;
  4. moved unsuccessfully for a protective order to limit the scope of the plaintiff’s deposition of defendant’s most knowledgeable representative, ECF 30, 37;
  5. refused to engage in class-wide discovery, requiring plaintiffs to file a successful motion to compel, ECF 27, 29, 36;
  6. moved unsuccessfully to stay the litigation, ECF 32, 37;
  7. refused to comply with the order granting the plaintiff’s motion to compel class-wide discovery, see ECF 41-2, requiring the plaintiff to move for sanctions, ECF 41, 43, 44; while the court did not impose sanctions, it imposed a deadline by which Cracker Barrel would have to produce class-wide discovery, ECF 47;
  8. moved unsuccessfully to compel discovery from the plaintiff, ECF 55, 60, 62;
  9. moved prematurely — and ultimately unsuccessfully — for summary judgment, ECF 64, 100, 105, 106, 113, in response to which the plaintiff moved successfully for additional discovery, ECF 74, 82;
  10. moved unsuccessfully to stay all proceedings pending ruling on its summary judgment motion, ECF 71, 78, 81, 82;
  11. unsuccessfully objected to the magistrate’s recommendation to deny its summary judgment motion, ECF 116, 126;[3]
  12. withheld ADA surveys of challenged facilities requiring plaintiff to file a successful motion to compel, ECF 76, 85, 87, 93;[4]
  13. moved unsuccessfully for a third protective order, ECF 91, 92, 96;
  14. unsuccessfully opposed the plaintiff’s motion for class certification, ECF 103, 108, 110, 113;
  15. unsuccessfully objected to the magistrate’s recommendation to grant the motion for class certification, ECF 116, 119, 123, 126;[5]
  16. unsuccessfully petitioned the Third Circuit Court of Appeals pursuant to Rule 23(f) to challenge class certification; and
  17. unsuccessfully moved — for a third time — to stay proceedings pending resolution of its Rule 23(f) petition, ECF 131, 134;
  18. unsuccessfully objected to the magistrate’s recommendation to deny the stay, ECF 135, 136, 137.

The case was filed in October, 2014, demanding that Cracker Barrel bring its parking lots into compliance with the ADA.  ECF 1.  In May, 2017, after all of the motions and maneuvers listed above, Cracker Barrel agreed to precisely this relief:  that it would survey it stores and bring the parking lots into compliance with the ADA.  ECF 163-1. In the meantime, people with mobility disabilities went another two and a half years without accessible parking, and Cracker Barrel’s lawyers billed their client for the time spent drafting and filing 21 separate briefs in pursuit of this campaign of delay. 

H.R. 620 will add yet another layer of process — another hoop to jump through — before people with disabilities can have the access guaranteed them when the ADA was passed in 1990.  It will also add to the list above another motion that ADA defense counsel can be paid to file.

The above Case Study is available in MS Word here.

The above Case Study is available in PDF here.

——————————-

[1] See Heinzl v. Cracker Barrel Old Country Stores, Inc., No. 2:14-cv-1455, 2016 WL 2347367, at *11 (W.D. Pa. Jan. 27, 2016).

[2]  The numbers following each item refer to the docket numbers in the PACER Electronic Case Filing system, www.pacer.gov.  All substantive filings related to each item are listed, including motions and orders.

[3] Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016).

[4]  Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2015 WL 6604015 (W.D. Pa. Oct. 29, 2015).

[5]  Heinzl, 2016 WL 1761963.

Acheson Hotels v. Laufer: Revenge of the Data Nerds

Posted on by Amy Robertson

Fox & Robertson along with a dream team of drafting partners filed an amicus brief today in the case of Acheson Hotels v. Laufer, currently pending in the Supreme Court. The case addresses the issue of “tester standing,” that is, whether people protected by civil rights laws have standing to sue when they intentionally investigate compliance and encounter discrimination.

Because tester litigation has been responsible for calling out and challenging widespread disability discrimination, businesses hate it. The amicus briefs they filed were full of hair-on-fire numbers — of pending ADA lawsuits — that they characterize as a “staggering,” “unrelenting tide” that is “clog[ging] federal court dockets.” Chamber of Commerce Br. 7, 11; Retail Litig. Ctr. Br. 4, 11, 20, 22. One business brief asserted that tester standing “threat[ened] . . . the cohesiveness of our union.” Ctr. for Constitutional Responsibility Br. 1. Drama much?

Of course numbers are catnip to the data nerds here at Fox & Robertson World Headquarters, so we decided to take a look at the actual numbers of ADA cases filed in federal court — based on data gathered by the United States Courts on its uscourts.gov website — and see how they looked in context. Here’s a chart comparing the “ADA-Other” category — roughly speaking, non-employment ADA cases, including the Title III cases that cause flaming hair on the business side — with six other common types of cases. Note the bright red ADA-Other line at the bottom.

Image: a line graph titled “Case Filings by Type (Table C-2),” with the years 2008 to 2022 on the x axis and numbers 0 to 300,000 on the y axis. Seven colored lines cross the graph horizontally, each representing a type of case. The top line is a jagged line representing tort cases (varying between approximately 50,000 and 135,000). The line representing the category "ADA - Other" is in red. It starts and ends at the bottom of the seven lines, intermingling with them in 2020. ADA-Other cases vary from approximately 1,700 to approximately 12,000. Other types of cases are as follows: Contract cases, in green, vary from approximately 23,000 to 35,000. Labor law cases, in light blue, vary from approximately 13,000 to 19,000. Other civil rights laws, in dark green, vary from approximately 11,000 to 16,000. Employment cases, in purple, vary from approximately 11,000 to 15,000. Intellectual property, in blue, vary from approximately 8,000 to 14,000.

See? Not so bad after all! If business put half the effort into compliance that they put into whining, the world would be pretty damn accessible by now.

Be sure to check out our amicus brief with other fun facts and incisive arguments from the dream team: free agent disability rights rockstar Karla Gilbride, Michelle Uzeta at Disability Rights Education and Defense Fund, Tom Zito at Disability Rights Advocates, Justin Ormand at Allen & Overy and yours truly here at the World HQ.

F&R, DREDF submit amicus brief in support of proactive ADA enforcement.

Posted on by Amy Robertson

Fox & Robertson, along with Michelle Uzeta of the Disability Rights Education and Defense Fund (“DREDF”) drafted an amicus — or “friend of the court” — brief to the Ninth Circuit supporting the time-honored and effective civil rights enforcement technique called “testing.” The amici filing the brief were DREDF, the Civil Rights Education and Enforcement Center (“CREEC”) as well as four disabled women who both need accessible businesses and facilities and have served as testers: Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn.

The Ninth Circuit recently issued a decision in the case of Langer v. Kiser, 57 F. 4th 1085 (9th Cir. 2023), strongly supporting civil rights testing in the context of Title III of the Americans with Disabilities Act, which prohibits disability discrimination by places of public accommodation. In response, the defendant business — and several supporting businesses and trade associations as amici — are petitioning the Ninth Circuit to rehear the case. Our brief asks the court to deny that petition.

We were inspired to write by the truly astonishing level of invective and baloney in the petition and amicus briefs urging rehearing. Title III testing involves people with disabilities intentionally putting themselves in a situation to experience, observe, and challenge discrimination. Given the vast number of businesses and facilities governed by Title III, testing is essential to full compliance, so people with disabilities can go about their days integrated and included in our society.

In this case, the plaintiff, Chris Langer, is a wheelchair-user who attempted to patronize a lobster shop in San Diego, but was unable to park due to the lack of accessible spaces. Mr. Langer sued the owners of the shop in 2018 and — rather than applying a bit of paint to asphalt to bring their parking lot into compliance — the owners fought back, challenging Mr. Langer’s standing to sue, that is, his right to be in court in the first place. They did not claim that their parking lot was accessible or vow to correct their violations; they just wanted to take away Mr. Langer’s right to challenge those violations and, along with it, both the rights of other plaintiffs to challenge other Title III violations and the rights of people with disabilities in general to use and enjoy the accessible facilities that result from these lawsuits.

The Ninth Circuit’s decision — almost precisely five years after the case was filed — strongly upheld Mr. Langer’s standing as both a patron and a tester, holding that “a plaintiff’s motive for going to a place of public accommodation is irrelevant to standing.” Langer, 57 F.4th at 1084.

In response to this clear and well-supported decision, the defendants asked the Ninth Circuit to rehear the case, and gathered four sets of amici to support them. These briefs were an eyebrow-raising collection of misconstruction and mud-slinging. Lawyers who represent disabled plaintiffs in Title III cases are “unscrupulous,” “opportunistic” and “predatory,” engaging in a “transfer of wealth.” Curiously, they call Title III litigation “meritless” and “baseless” without any argument or evidence to suggest that either the Kisers’ premises or the facilities in the cases they rely on are actually in compliance — 30 years after the deadline for compliance.

So much vitriol – so little substance!

Our amicus brief pushed back hard — not with the counter-invective that hilariously populated the authors’ text threads, but with fact and law. From our brief:

  • Congress chose to make private enforcement “the primary method of obtaining compliance with the [ADA].” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
  • Based on barriers to the courthouse, “the ADA remains a chronically under-enforced statute.”
  • The “ADA regulates more than 600,000 businesses, [and] 5 million places of public accommodation.”
  • Testers have been widely accepted as enforcers of civil rights starting with Black people intentionally riding a segregated bus or using a whites-only waiting room. Evers v. Dwyer, 358 U.S. 202, 204 (1958); Pierson v. Ray, 386 U.S. 547, 558 (1967). 
  • People with disabilities have been granted standing to challenge architectural barriers in decisions around the country — and previously in the Ninth Circuit. Suárez-Torres v. Panaderia Y Reposteria España, Inc., 988 F.3d 542, 551 (1st Cir. 2021); Mosley v. Kohl’s Dep’t Stores, Inc., 942 F.3d 752, 758 (6th Cir. 2019); Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 457 (4th Cir. 2017); Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013); Harty v. Simon Prop. Grp., L.P., 428 F. App’x 69, 71 (2d Cir. 2011.)

We explained the value of testing in terms of the everyday experience of the amici:

It is the experience of the Individual Amici that illegal barriers are a routine impediment to their professional and personal lives. By the time a wheelchair-user arrives at a public accommodation, hoping to enjoy its goods, services, facilities, privileges, advantages, and accommodations, it’s too late for a lawsuit to be much use. You roll up to a place that should have been made accessible some time in the past 30 years only to discover that you can’t park, or you can’t get in the door, or you can’t use the restroom, or – in the case of the Individual Amici in the CREEC case – you can’t get from the airport to your hotel because the hotel’s van is inaccessible. The fact that you just achieved an injury-in-fact and an admit-one ticket to federal court does not let you park, or get in the door, or use the restroom, or get to your hotel.

Testers help solve this problem. Wheelchair-users who are intentional about investigating and challenging barriers can help move our society toward a time when they and others can go about their daily lives expecting and finding access to a wide range of facilities. . .

Throughout its decision, the Ninth Circuit cited to and relied on the CREEC case which was brought by (as the name suggests) CREEC, as well as the individual amici Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn. Because of their crucial role in the case on which the Ninth Circuit relied, these four women, along with CREEC and DREDF, were the amici asking the Court to turn away from the business-side invective and uphold an important tool for civil rights enforcement.

Deaf and Hard of Hearing People in Colorado Prisons Will Get Interpreters, Other Effective Communication and Accommodations

Posted on by Amy Robertson

Disability Law Colorado Settles Lawsuit Against Colorado Department of Corrections

Disability Law Colorado (DLC) and the Colorado Department of Corrections (CDOC) have reached a settlement in a lawsuit DLC brought on behalf of Deaf and hard of hearing people incarcerated in CDOC’s custody.  DLC is represented by student attorneys and their professors at the Civil Rights Clinic (CRC) at the University of Denver Sturm College of Law, as well as attorneys from the Civil Rights Education and Enforcement Center (CREEC) and the Denver law firm of Fox & Robertson.

The lawsuit alleged that CDOC was in violation of the Americans with Disabilities Act (ADA) by failing to provide sign language interpreters for medical appointments, classes, and other significant interactions; failing to provide equal access to notifications and alarms; and failing to provide and maintain hearing aids.

In the settlement, CDOC commits to ensure that Deaf incarcerated people have access to sign language interpreters for key interactions such as intake and orientation; medical appointments; educational, vocational, and religious programs; and preparation for parole and release. CDOC will provide captioned telephones for hard of hearing incarcerated people, and continue to provide – per an earlier settlement with CREEC – videophones for those who are Deaf. CDOC will also ensure that hard of hearing incarcerated people are evaluated by an audiologist and provided hearing aids if necessary; those with hearing aids will receive prompt repairs and replacement batteries. 

The settlement requires CDOC to provide text-based notifications for incarcerated people who cannot hear announcements over the public address system, and to provide a visual or tactile alarm system to ensure that Deaf and hard of hearing incarcerated people are not left behind in emergencies.  

The lawsuit was the result of a two-year investigation by student attorneys at the CRC, who reviewed thousands of pages of documents and conducted hundreds of interviews. The investigation revealed systemic discrimination against Deaf and hard of hearing people and led to the filing of the federal court complaint in March of 2021.

Later that year, the parties began to discuss settlement, culminating in the agreement announced today.

“This settlement will finally ensure that Deaf and hard of hearing people are treated equally in Colorado’s prisons – that, like others, they can understand and communicate with medical personnel, succeed in educational and vocational programs, be safe in emergencies, and prepare for parole and release,” said Carrie Griffin Basas, DLC’s Executive Director. “We commend the CDOC for working with us improve the conditions for Deaf and hard of hearing incarcerated people.”

“For years, Deaf and hard of hearing people incarcerated by CDOC fought for their rights. We are grateful for their tenacity and courage. This settlement would not have been possible without their hard work and that of the multiple generations of Civil Rights Clinic student attorneys who fought alongside them,” added Professor Laura Rovner, Director of the Civil Rights Clinic. “We thank them, DLC, and our co-counsel for helping to bring about these critically important reforms.”

“We are excited for this important settlement and fortunate to have worked with DLC and d/Deaf and hard of hearing incarcerated people in this lawsuit,” said Pilar Gonzalez Morales, Director of the Accessibility Project at CREEC. “We commend the work of all the people held by CDOC who supported and helped us bring this lawsuit, as well as the work of our co-counsel partners.”

“We are grateful for DLC’s leadership in this important case, and for the courage of the individual incarcerated people who worked with us to document discrimination and craft the settlement,” said Amy Robertson, with the law firm of Fox & Robertson. We look forward to working with the CDOC to implement this ground-breaking settlement.”

National Federation of the Blind of Colorado, Blind Prisoners Resolve Suit Against CDOC.

Posted on by Amy Robertson

Colorado Department of Corrections will Correct Systemic Failures that Threatened Privacy and Safety of Blind Incarcerated People.

Icon showing blind person using cane, laptop, and headphones, all behind prison bars.

Brian Christopher Mackes and Adrian Chávez, two blind men in the custody of the Colorado Department of Corrections (CDOC), and the National Federation of the Blind of Colorado have settled the lawsuit they brought against CDOC last year. The suit alleged that CDOC denied blind prisoners access to the aids and services needed to participate in educational programming, work assignments, and recreation. According to the complaint, CDOC also failed to provide blind prisoners with effective communication of the materials and information that the Department provides prisoners in written form, such as handbooks, regulations, and grievance forms. This conduct forced blind prisoners to rely on other inmates to help them with various tasks, such as reading mail, and to provide them with information, threatening their privacy and safety.

The plaintiffs were represented by attorneys from the Civil Rights Education and Enforcement Center (CREEC), the Denver law firm of Fox & Robertson, and the Baltimore law firm of Brown Goldstein & Levy.

The settlement requires that each blind prisoner have access to a laptop loaded with screen reader software, which reads digital material aloud, as well as a typing tutorial program, an ebook reader, and other assistive technology. These devices will also contain accessible-format versions of key prison documents. Blind prisoners will also have access to a scanner and printer to which the laptops can be connected so that they can read mail and other printed documents. All job and education information will be made accessible, and blind prisoners cannot be denied access to any such opportunity based on disability.

“Blind prisoners do not seek, and this settlement does not grant, special treatment,” said Jessica Beecham, president of the National Federation of the Blind of Colorado. “Blind incarcerated people will now receive the accommodations they need, and to which they are legally entitled, in order to fully and equally participate in the programs and opportunities available to other members of the incarcerated population. We commend the Colorado Department of Corrections for reaching this agreement, and hope that other corrections systems throughout our nation will take note of the necessary and humane reforms taking place in Colorado. We are grateful for the leadership of our national organization in coordinating the expertise, resources, and talent to make these changes a reality.”

“We recognize and appreciate the courage of the individual plaintiffs, Brian Mackes and Adrian Chávez, who documented the discrimination they faced and worked with us and with the Department to craft this ground-breaking settlement,” said Amy Robertson, an attorney with Denver’s Fox & Robertson who represented the NFB of Colorado and the individual plaintiffs. “We look forward to working with the CDOC to ensure access and privacy for blind people in CDOC custody.”

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About the National Federation of the Blind of Colorado

The National Federation of the Blind of Colorado, an affiliate of the transformative membership and advocacy organization of blind Americans,  is a nonprofit made up of blind people of all ages and their families and friends. NFB-CO is dedicated to ensuring that blind Coloradoans have full and equal access to all the services, programs, and activities of the State. NFB-CO serves as an advocate for change when equal treatment is denied. https://www.nfbco.org/.