231 F.3d 1 (D.C. Cir. 2000), 99-5390, American Bus Ass. V Slater

Docket Nº:99-5390
Citation:231 F.3d 1
Case Date:November 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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231 F.3d 1 (D.C. Cir. 2000)




No. 99-5390

United States Court of Appeals, District of Columbia Circuit

November 14, 2000

Argued September 8, 2000.

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Appeal from the United States District Court for the District of Columbia. (No. 98cv02351).

Richard A. Allen argued the cause for appellant. With him on the briefs were Richard P. Schweitzer, Craig M. Cibak and Jol A. Silversmith.

Sandra Wien Simon, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General, Marleigh D. Dover, Attorney, Nancy E. McFadden, General Counsel, U.S. Department of Transportation, and Paul M. Geier, Assistant General Counsel.

Before: WILLIAMS, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

American Bus Association ("ABA") appeals from a District Court judgment upholding a Department of Transportation ("DOT") rule that implements portions of the Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101 et seq. (1994). Appellant challenges those portions of the rule that authorize the imposition of money damages against bus companies that fail to comply with the ADA. Appellant claims that the remedies enumerated in the ADA are exclusive, and may not be supplemented with a money-damages scheme. It also alleges that DOT violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. (1994), because it provided neither notice that it was considering authorizing monetary relief nor opportunity for the public to comment.

We conclude that DOT lacked the statutory authority to impose money damages on bus companies. Congress has given the agency no authority to establish remedies in addition to those that are specified in the ADA. Because we hold that DOT exceeded the scope of its authority, we need not reach Appellant's notice-and-comment claim.


A. Factual background

Title III of the ADA generally requires operators of public accommodations, including common carriers, to make their services accessible to disabled persons. See 42 U.S.C. §§ 12181-88 (1994). Toward that end, the ADA instructs the Secretary of Transportation--which post is presently held by Appellee Rodney E. Slater--to promulgate rules concerning the accessibility of over-the-road buses ("OTRBs"), which are large motorcoaches designed for travel between cities. See id. § 12186(a). On September 6, 1991, DOT issued a set of interim rules governing OTRB accessibility. These rules required bus companies to provide boarding assistance to disabled passengers, and permitted operators to require passengers who needed such assistance to provide them with 48 hours of advance notice. DOT did not, at the time, oblige operators to equip their OTRBs with wheelchair lifts, nor did it require operators to pay money damages to disabled persons whose travel plans were frustrated. See Transportation for Individuals with Disabilities, 56 Fed. Reg. 45,584, 45,640 (1991).

In 1993, DOT issued an advance notice of proposed rulemaking in which the agency identified the OTRB-accessibility issues it hoped to resolve. Among DOT's concerns were whether all OTRB routes should have accessibility requirements, and whether disabled passengers' needs could be accommodated by an "on-call" system under which they could request an accessible OTRB in advance. See Transportation for Individuals with Disabilities; Accessibility of Over-the-Road Buses, 58 Fed. Reg. 52,735, 52,738-39 (1993). The public more than complied with the agency's

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request for comments: hundreds were submitted, mostly from disabled persons' advocacy groups and organizations representing the bus industry.

On March 25, 1998, DOT published a notice of proposed rulemaking ("NPRM") that proposed requiring all fixed-route OTRBs (regularly scheduled buses, such as Greyhound) to install wheelchair lifts, and obliging charter/tour OTRBs to provide lift-equipped buses to passengers who request them 48 hours in advance. The NPRM made no mention of the possibility of money damages, or any other scheme to compensate disabled passengers whose travel plans were frustrated by an inaccessible OTRB. See Transportation for Individuals with Disabilities, 63 Fed. Reg. 14,560-71 (1998).

After considering the over 400 comments submitted in response to its NPRM, the agency issued its final rule on September 28, 1998. Several commentators had urged DOT to promulgate an "on-call," or reservation-based, rule, under which all OTRB operators (and not just charter/tour operators) would be required to provide wheelchair-accessible buses to passengers who gave 48-hours advance notice of their need. See, e.g., Comments of Coach USA, Inc. at 19-21. The agency rejected that alternative. Its final rule essentially imposed the obligations proposed in the NPRM--requiring fixed-route OTRB operators to equip their entire fleets with wheelchair lifts--with the additional requirement that bus companies pay "compensation" to disabled passengers when they fail to provide them with accessible service. A bus operator will be assessed a $ 300 fine for its first violation, $ 400 for its second, and so on in $ 100 increments up to $ 700 for its fifth and all subsequent infractions. See Transportation for Individuals with Disabilities, 63 Fed. Reg. 51,670, 51,692 (1998) (codified at 49 C.F.R. § 37.199 (2000)).

B. The District Court decision

Two days after the final rule was promulgated, September 30, 1998, Appellant American Bus Association filed a complaint in the United States District Court for the District of Columbia. ABA, an organization representing the bus industry, alleged, among other things, that DOT had no statutory authority to implement the money-damages scheme, that the agency had not provided adequate notice that it intended to adopt a remedies provision, and that the rule violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1994).

On the parties' cross-motions for summary judgment, the District Court rejected each of ABA's contentions. The court found that the agency had provided adequate notice that it was considering a money-damages provision. While the NPRM may not expressly have mentioned the possibility of money damages, the remedies scheme was the "logical outgrowth" of the agency's often-expressed concern that bus companies would fail to provide accessible service to disabled passengers. See American Bus Ass'n v. Slater, No. 98-2351, Mem. Op. at 22-23 (D.D.C. Sept. 10, 1999) ("Mem. Op.") (citing, inter alia, United Steelworkers v. Marshall, 208 U.S. App. D.C. 60, 647 F.2d 1189, 1221 (D.C. Cir. 1980) ("Where the change between the proposed and final rule is important, the question for the court is whether the final rule is a 'logical outgrowth' of the rulemaking proceeding.")). Indeed, the court reasoned, ABA had actual notice that DOT was considering a damages provision, as its own submitted comment expressly endorsed a proposal that disappointed passengers should be permitted to seek monetary relief. See id. at 25-26.

ABA's argument that the agency exceeded its statutory authority by imposing money damages fared no better. The District Court cited the Supreme Court's pronouncement that, if an authorizing "statute is silent or ambiguous," courts must uphold "a reasonable interpretation made by the administrator of an agency." Chevron U.S.A. Inc. v. Natural Resources Defense

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Council, Inc., 467 U.S. 837, 843, 844, 81 L.Ed. 2d 694, 104 S.Ct. 2778 (1984). Such an ambiguity, the court reasoned, exists here: "The plain language [of the ADA] indicates that Congress did not explicitly forbid the Secretary from including a compensation mechanism in the OTRB accessibility regulations." Mem. Op. at 28. Because of the ADA's silence on the availability of money damages--because "[a] gap exists in this enabling statute," id.--the court concluded that Chevron obliged it to defer to DOT's reasonable interpretation.

Nor was the District Court persuaded by ABA's argument that the agency's money-damages scheme is foreclosed by APA § 558(b), which establishes that "[a] sanction may not be imposed ... except within jurisdiction delegated to the agency and as authorized by law." 5 U.S.C. § 558(b) (1994). The court conceded that DOT had authorized sanctions, but it reasoned that they were not penal sanctions. Because the sanctions were designed to remedy the injuries suffered by disabled persons whose travel needs were not accommodated, and because the fines would be paid directly to the disappointed passengers, "this court concludes that the provision is a regulatory sanction with a remedial purpose and not a penalty." Mem. Op. at 27. The court therefore entered summary judgment in favor of the agency's Secretary.

This appeal followed. ABA no longer contests DOT's decision to require that OTRB companies equip their buses with wheelchair lifts, and only its money-damages and notice-and-comment claims are before this Court.


A. Chevron and ADA § 12188

The principal issue in this case is whether DOT had the statutory authority to adopt a rule imposing money damages on bus companies that fail to provide accessible service to disabled passengers. Because, DOT proposes, this case involves a dispute as to whether that rule is in fact authorized by the statute it purports to implement, it is governed by the familiar two-step analysis announced in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L.Ed. 2d 694, 104 S.Ct. 2778 (1984). "First, always," the reviewing court must consider "whether Congress has directly spoken to the precise question at issue." An affirmative answer "is the end of the matter;...

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