Abrahams v. Bus

Citation644 F.3d 110,43 NDLR P 47
Decision Date05 May 2011
Docket Number10–2190–cv.,Docket Nos. 10–2058–cv
PartiesDanny ABRAHAMS, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, Lee Wolbrum, Plaintiffs–Appellants,v.MTA LONG ISLAND BUS, Defendant–Appellee.*Pablo Cruz, Maureen Hartnett, Joel Steele, Plaintiffs–Appellants,v.Nassau County, MTA Long Island Bus, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

OPINION TEXT STARTS HERE

Robert L. Schonfeld, Moritt Hock Hamroff & Horowitz LLP, Garden City, NY, for PlaintiffsAppellants Danny Abrahams, Anthony Celardo, Kevin Christman, Lauren Epstein, Meryl Jackelow, Evan Skidmore, David Tindal, and Lee Wolbrum.Robert R. Briglio, Nassau/Suffolk Law Services Committee, Inc., Islandia, NY, for PlaintiffsAppellants Pablo Cruz, Joel Steele, and Maureen Hartnett.Helene Fromm, Deputy General Counsel (Shawn M. Friedman, Peter Sistrom, of counsel, on the brief), Metropolitan Transportation Authority, New York, NY, for DefendantAppellee MTA Long Island Bus.Before: SACK, B.D. PARKER, and RAGGI, Circuit Judges.B.D. PARKER, JR., Circuit Judge:

These consolidated appeals address issues relating to a municipality's obligations under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., when paratransit services beyond those required by the ADA are reduced. Paratransit services are public transportation services for disabled users. In both Abrahams v. MTA Long Island Bus and Cruz v. Nassau County, plaintiffs sued defendants Nassau County, New York and/or MTA Long Island Bus (the MTA), asserting claims under the ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The gravamen of the lawsuits is that defendants implemented substantial reductions in paratransit services without allowing for the public participation by users of the services required by ADA regulations, and failed to make reasonable modifications to existing services so as to ameliorate the effect of the service reductions.

The United States District Court for the Eastern District of New York (Feuerstein, J.) dismissed both cases on the grounds that the regulations did not apply to the service cuts in question and that the reasonable modifications requirement did not apply to paratransit services. This appeal followed. We affirm.

BACKGROUND

The ADA requires municipalities to provide paratransit and other special transportation services to individuals whose disabilities do not permit them to use the regular fixed routes. See 42 U.S.C. § 12143(c)(1). The level of this service must be “comparable” to that afforded riders who are not disabled. 49 C.F.R. § 37.3. Under an operating agreement with Nassau County, the MTA provides public transportation services in the County. Entities providing such services are required by the ADA to submit to the Federal Transit Administration (“FTA”) “a plan for providing paratransit and other special transportation services” to disabled individuals. 42 U.S.C. § 12143(c)(7). The ADA also requires public entities to ensure that particular public participation procedures are utilized in developing their initial plan. See 49 C.F.R. § 37.137(b). These procedures include outreach, consultation with individuals with disabilities, opportunity for public comment, and a public hearing. 49 C.F.R. § 37.137(b)(1)-(4).

In response to the ADA's requirements, defendants in 1998 developed and later implemented an ADA Compliance Plan. There is no indication in the record that the required public participation did not occur in the development of defendants' initial paratransit plan. As part of the plan, defendants offered a paratransit service called “Able–Ride,” which provided door-to-door service to disabled riders. Able–Ride provided service both to areas required by the ADA (the “ADA service area”) and to areas outside that service area. Specifically, although the ADA's implementing regulations only require a municipality to offer paratransit services within three-quarters of a mile of a fixed route, see 49 C.F.R. § 37.131(a)(1)(i), Able–Ride transported disabled residents door-to-door anywhere within Nassau County. In other words, under the plan, defendants provided a level of service that not only fully complied with, but substantially exceeded, what the ADA required. The FTA approved the plan and in 2004 concluded that defendants were in full compliance with the ADA.

Plaintiffs are disabled residents of Nassau County who qualify for the Able–Ride program. They all suffer from a variety of serious mental and physical ailments, including cerebral palsy, depression, mild mental retardation, and permanent blindness. Several plaintiffs are on kidney dialysis, which substantially limits their mobility and necessitates the use of a driver to attend medical appointments. Many of the plaintiffs also depend on a wheelchair. All plaintiffs regularly used Able–Ride as their primary mode of transportation to or from locations outside the ADA service area.

Around 2010, Nassau County, like many other municipalities, was experiencing substantial budget shortfalls necessitating reductions in government spending in a variety of areas. Paratransit service offered to locations not required by the ADA was one of the areas targeted for cuts.

In January 2010, MTA officials met with a group known as the Accessible Transportation Oversight Committee (“ATOC”), an advisory committee that includes people with disabilities, many of whom used the Able–Ride service, and notified them in a general way of impending service cuts. Additional specific information was promised for a subsequent March meeting. In February, the MTA distributed notices on Able–Ride vehicles advertising a March 1, 2010 public hearing regarding, among other things, proposed changes in the MTA's level of services. The public hearing notice also stated that “other service-related changes ... that may also affect the operation and general provision of service of ... Able–Ride” were among “the proposed changes,” and that [a]lthough these proposed changes do not require public hearing, they are described in informational material available on the MTA website.” Plaintiffs contend that such a disclaimer discouraged individuals with disabilities from attending the March 1 hearing, which was attended by few such individuals. The ATOC held a subsequent meeting on March 9, 2010 to explain the service cuts. The next day, the MTA notified all Able–Ride users by letter of the impending cuts. A short while later, the MTA eliminated most of the Able–Ride service beyond the ADA service area.

Plaintiffs contend that defendants' steps in implementing the service cuts were insufficient and violated 49 C.F.R. § 37.137(c), a Department of Transportation (“DOT”) regulation, promulgated pursuant to the ADA, which requires public entities to provide an “ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities.” Specifically, plaintiffs allege that defendants violated the regulation by deciding to implement the service cuts without consulting with plaintiffs or other disabled individuals in Nassau County who used the Able–Ride service. In addition, the Cruz plaintiffs contend that by failing to prioritize Able–Ride services outside the ADA service area so as to provide services to individuals who have the greatest need for them, defendants violated 28 C.F.R. § 35.130(b)(7), the Department of Justice's (“DOJ”) “reasonable modifications” regulation, which was also promulgated pursuant to the ADA.

Both the Cruz and the Abrahams plaintiffs moved for preliminary injunctions. The County and the MTA opposed the motions and moved to dismiss the complaints. The County argued that it was not a proper party, contending that, under its agreement with the MTA, the MTA is the entity that provides paratransit services in Nassau County and that the MTA is the only entity that has the unqualified right to establish and change the paratransit services in question.1 The MTA argued that no private right of action exists under the ADA to enforce the DOT's public participation regulations and that, even if a right does exist, no violation of the regulations occurred. The MTA also argued that the Cruz plaintiffs' reasonable modification claim failed because the reasonable modifications regulation, which was promulgated by the Attorney General, did not apply to services such as paratransit services, that fell within the exclusive purview of the Secretary of Transportation.

The district court denied interlocutory relief and dismissed the complaints under Federal Rule of Civil Procedure 12(b)(6). It held that the public participation regulations only apply to the development of a paratransit plan, not to subsequent modifications, reasoning that although public participation may be required under the ADA's regulations if an entity is not yet in compliance with the ADA, entities in full compliance (such as defendants) that elect to provide services above and beyond what the ADA requires are not subject to this obligation.2 Finding the public participation regulations inapplicable, the district court did not reach the question of whether the DOT's ongoing public participation regulation could be enforced through a private right of action. As to the Cruz plaintiffs' reasonable modification claim, the district court found 28 C.F.R. § 35.130(b)(7), the DOJ's regulation requiring reasonable modifications, inapplicable because, in the court's view, paratransit services were under the exclusive authority of the Secretary of Transportation. Finally, finding that plaintiffs had failed to state a claim upon which relief could be granted, the district court denied plaintiffs' motions for preliminary injunctions. This appeal followed.

DISCUSSION

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

To continue reading

Request your trial
35 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT