American Public Transit Ass'n v. Lewis, 80-1497
| Decision Date | 26 May 1981 |
| Docket Number | No. 80-1497,80-1497 |
| Citation | 655 F.2d 1272 |
| Parties | AMERICAN PUBLIC TRANSIT ASSOCIATION, et al., Appellants, v. Andrew L. LEWIS, Jr., Secretary, United States Department of Transportation, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Barry L. Gordon, Atty., Dept. of Justice, for appellees. Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Anthony Steinmeyer and Margaret E. Clark, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellees. Mary A. McReynolds, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellees.
Before MacKINNON, MIKVA and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Petitioners challenge certain regulations promulgated by the Department of Transportation (DOT or Department) on May 31, 1979, to implement section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794 (Supp. III 1979), section 16 of the Urban Mass Transit Act of 1964 (UMTA), 49 U.S.C. § 1612 (1976), and section 165(b) of the Federal-Aid Highway Act of 1973 (FAHA), 23 U.S.C. § 142 note (1976). These regulations require that every mode of transportation in a mass transit system be made accessible to the handicapped, though waivers can be obtained for rail systems under some circumstances. See 44 Fed.Reg. 31,442, 31,477-81 (1979), 49 C.F.R. §§ 27.81-27.107 (1980).
The district court upheld the regulations as a valid exercise of DOT's statutory authority. Although it is possible that the UMTA or the FAHA might support the issuance of such regulations, we find that DOT's view of section 504 of the Rehabilitation Act is inconsistent with the Supreme Court's subsequent analysis of the Act in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Because we conclude from the administrative record that DOT relied primarily on its understanding of its responsibilities under the Rehabilitation Act in promulgating the regulations, we reverse and remand for further proceedings not inconsistent with this opinion.
The regulations challenged in this appeal are not the first DOT regulations dealing with mass transit systems and the handicapped. In 1976, DOT issued regulations designed to implement section 504 of the Rehabilitation Act, section 16 of the UMTA, and section 165(b) of the FAHA. See 41 Fed.Reg. 18,234 (1976). Each of these statutes deals with the handicapped. Section 504 provides that any program receiving federal funds must not discriminate against the handicapped. 1 Section 16 of the UMTA The 1976 DOT regulations implemented these provisions by mandating that state and local planners make "special efforts in planning public mass transportation facilities and services that can effectively be utilized by elderly and handicapped persons." 41 Fed.Reg. 18,234 (1976). Approval of project grants was conditioned on On April 28, 1976, two days before the regulations were published in their final form, President Ford issued Executive Order Number 11,914, 41 Fed.Reg. 17,871 (1976). The order directed the Department of Health, Education, and Welfare (HEW) 4 to coordinate implementation of section 504 for all federal agencies and departments by establishing standards and guidelines for determining what practices were discriminatory. The President directed other agencies to promulgate regulations consistent with the guidelines established by HEW.
provides that, as a matter of national policy, handicapped and elderly persons have the same rights as others to use mass transit facilities. This provision imposes an obligation on local planners to make "special efforts ... in the planning and design of mass transportation facilities and services so that the availability" of such services to the elderly and the handicapped will be "assured." 2 FAHA section 165(b) authorizes the Secretary of DOT to require that a mass transit system, aided by grants from highway funds under the FAHA, "be planned, designed, constructed, and operated to allow effective utilization by elderly or handicapped persons." 3
"satisfactory special efforts." Id. The regulations were accompanied by guidelines issued jointly by the Urban Mass Transit Administration and the Federal Highway Administration to illustrate the kinds of plans that would satisfy the "special efforts" requirement. These guidelines allowed each local authority to choose a plan responsive to local needs. For example, a community could provide door-to-door "special services," rather than make fixed-route transportation modes accessible. Id
HEW issued its guidelines in 1978. See 43 Fed.Reg. 2132 (1978), 45 C.F.R. §§ 85.1-85.58 (1980). They require that all recipients of federal funds "mainstream" handicapped persons, that is, integrate such persons into the same programs available to others, rather than treat them as a separate group in "special" programs. Under the guidelines, "separate treatment" may be provided only when necessary to ensure equal opportunities. See 43 Fed.Reg. at 2134. 5
In the context of public transportation, "mainstreaming" means the physical integration of the handicapped with other members of the travelling public, and the HEW guidelines require that each mode of transportation in a transit system be accessible to the handicapped. See id. at 2138-39, 45 C.F.R. §§ 85.56, 85.57. The 1976 DOT regulations clearly violated this requirement; they sanctioned the provision of separate transit services for the handicapped as an alternative to accessible bus and rail systems.
DOT's inconsistent regulations were soon rescinded. Six months after HEW promulgated the guidelines, DOT published its notice of proposed rulemaking, together with proposed rules. See 43 Fed.Reg. 25,016 (1976). The notice stated that DOT felt bound by the HEW guidelines to adopt only such options as would constitute "mainstreaming." Id. at 25,017. A regulatory analysis, prepared by DOT to explain its rationale and choices, analyzed the various options in terms of their consistency with the HEW guidelines. See Department of Transportation Section 504 Regulation Regulatory Analysis, Joint Appendix (J.A.) at 95. Before publication of the final rules, DOT submitted its draft rules to HEW for approval. Based on discussions with HEW, DOT agreed to a number of changes so that former HEW Secretary Califano could find the DOT regulations in compliance with the HEW guidelines. See 44 Fed.Reg. 31,468 (1979).
The new regulations, formally promulgated by DOT in 1979, differ substantially from the earlier ones, although both sets implement the same statutory provisions. The 1979 regulations require that transit systems receiving any federal funds make each mode of public transportation "accessible" to the handicapped by May 31, 1982, although "extraordinarily expensive" structural changes to, or replacements of, existing A transportation mode is generally considered "accessible" when it can be used by a handicapped person in a wheelchair. Every bus purchased after July 2, 1979, must have a wheelchair lift, id. at 31,478, 49 C.F.R. § 27.85. The estimated additional cost is $12,000 to $15,000 per bus. 6 At the end of ten years, half of the buses on any system must be accessible to wheelchair users. Id.
vehicles or facilities may be accomplished over periods as long as thirty years. See 44 Fed.Reg. 31,442, 31,477-79 (1979), 49 C.F.R. §§ 27.83-27.95 (1980). Some particularly costly structural changes to rail systems may be waived under certain conditions. Id. at 31,480, 49 C.F.R. § 27.99.
Subways and other rail systems must be retrofitted with elevators and "gap-closing" equipment that will enable wheelchair users to board trains. Id. at 31,478-79, 49 C.F.R. §§ 27.87-27.89. "Key" subway and commuter rail system stations, about forty per cent of all stations, must be accessible, and connector service must be provided between key stations and other stations. Id. At least one car per train must be accessible; to this end, new subway cars acquired after July 2, 1979, must be accessible to wheelchair users, as must new commuter rail cars acquired after January 1, 1983.
The regulations include a special waiver provision for existing subway, commuter rail, and streetcar systems, but not for bus systems. An application for a waiver may be submitted after the metropolitan planning organization, handicapped persons, and their representative groups plan an alternative service that is at least as good as an accessible rail system, and the DOT Secretary has discretionary authority to grant the waiver if these conditions have been met. Id. at 31,480, 49 C.F.R. § 27.99.
DOT's regulations were promulgated on May 31, 1979; on June 29, 1979, the plaintiff, American Public Transit Association (APTA), a voluntary trade association, and eleven of its transit system members, 7 filed suit in district court challenging the validity of the regulations. After hearing argument on cross-motions for summary judgment, the district court entered a judgment affirming the validity of the regulations.
The district court upheld the regulations on the basis of the three statutes cited by DOT: section 16 of the UMTA (local planners must make "special efforts" to provide transportation for the elderly and the handicapped), 8 section 165(b) of the FAHA (transit systems receiving highway funds should be planned, designed, constructed, and operated to allow effective utilization by the elderly and the handicapped), 9 and section 504 of the Rehabilitation Act (). 10 In...
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