687 F.2d 644 (2nd Cir. 1982), 603, Dopico v. Goldschmidt

Docket Nº:603, Docket 81-6172.
Citation:687 F.2d 644
Party Name:Rhea DOPICO, et al., Plaintiffs-Appellants, v. Neil E. GOLDSCHMIDT, et al., Defendants-Appellees. DISABLED IN ACTION, et al., Plaintiffs-Appellants, v. Neil E. GOLDSCHMIDT, et al., Defendants-Appellees.
Case Date:September 02, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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687 F.2d 644 (2nd Cir. 1982)

Rhea DOPICO, et al., Plaintiffs-Appellants,


Neil E. GOLDSCHMIDT, et al., Defendants-Appellees.

DISABLED IN ACTION, et al., Plaintiffs-Appellants,


Neil E. GOLDSCHMIDT, et al., Defendants-Appellees.

No. 603, Docket 81-6172.

United States Court of Appeals, Second Circuit

September 2, 1982

Argued March 11, 1982.

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Jane E. Bloom, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., and Richard N. Papper, Asst. U. S. Atty., New York City, on the brief), for federal defendants-appellees.

Dean Ringel, New York City (Floyd Abrams, Thomas Jones, Devereux Chatillon, and Cahill, Gordon & Reindel, New York City, on the brief), for local defendants-appellees.

Jane Greengold Stevens, Brooklyn, N. Y. (John C. Gray, Jr., George W. Sampson, and Brooklyn Legal Services Corp., Brooklyn, N. Y., Susan Sugar Nathan and Community Action for Legal Services, Inc., Handicapped Persons Legal Support Unit, New York City, Sutton Keany, Christopher R. Wall, Aileen Meyer, and Winthrop, Stimson, Putnam & Roberts, New York City, on the brief), for plaintiffs-appellants.

Before TIMBERS, NEWMAN and CARDAMONE, Circuit Judges.

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NEWMAN, Circuit Judge:

This appeal concerns the extent of the efforts that federal law requires of local and federal authorities in pursuing the national policy of making urban mass transportation available to the handicapped. Plaintiffs, individually and representing all wheelchair-bound handicapped persons in New York City, initiated two consolidated class actions in the District Court for the Southern District of New York against local and federal defendants, seeking declaratory and injunctive relief to force defendants to comply with a variety of federal statutes and regulations that implement that policy through a system of federal funding and administrative oversight. The principal local defendants are the New York City Transit Authority, the Metropolitan Transportation Authority, and the New York City Department of Transportation. The federal defendants are officials of the United States Department of Transportation (DOT) and its Urban Mass Transportation Administration (UMTA).

In essence, plaintiffs made two claims. First, they alleged that the local defendants, who are recipients of federal mass transit assistance funds granted by federal agencies, have failed during the past decade to use these funds to make the "special efforts" required by federal law toward making mass transportation services in New York City available to the elderly and the handicapped. Second, they alleged that the federal defendants, who grant such assistance on appropriate application and who must certify local program compliance with federal law, have continued to approve and fund the local defendants' programs even though the federal defendants knew or should have known of the lack of required "special efforts." On motion of defendants, the District Court (Edward Weinfeld, Judge) dismissed the complaint against the local defendants for failure to state a claim upon which relief could be granted, ruling that the statutes upon which the plaintiffs relied either did not create a private right of action or did not permit the kind of relief sought. The Court also granted summary judgment in favor of the federal defendants, ruling that their decisions and actions passed muster under the "arbitrary and capricious" standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1976). 518 F.Supp. 1161 (S.D.N.Y.1981). Plaintiffs appealed.

As to the dismissal of the complaint against the local defendants, we affirm several aspects of Judge Weinfeld's ruling, but disagree with his conclusion that section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976), does not permit any of the relief that plaintiffs seek. As to the grant of summary judgment against the federal defendants, we conclude that such a judgment is premature because there is a factual question as to the completeness of the administrative record before the Court. We therefore reverse in part and remand for further proceedings.

The Regulatory Scheme

Federal aid to urban mass transit programs is provided primarily under sections 3 and 5 of the Urban Mass Transportation Act ("UMT Act"), 49 U.S.C. §§ 1602, 1604 (1976), and under the Federal-Aid Highway Act ("FAH Act"), 23 U.S.C. §§ 120(a), 142(a), (c) (1976). The UMT Act was enacted in 1964; in 1970 Congress added to it section 16, in response to complaints that the various facilities being subsidized were not accessible to people using wheelchairs. Section 16 declared as "national policy" that the elderly and handicapped have the "same right" as other persons to use mass transit and that "special efforts shall be made in the planning and design of mass transportation facilities and services" to ensure that usable mass transportation is available to them. 49 U.S.C. § 1612(a). Three years later, Congress enacted the Rehabilitation Act of 1973, which includes the authorization of programs to "study and develop solutions to existing ... transportation barriers impeding handicapped individuals." Rehabilitation Act of 1973, § 2(11), 29 U.S.C. § 701(11) (1976). Specifically involved in this litigation is section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits recipients of federal funding from

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excluding from participation in any program, denying the benefits of any program to, or discriminating against otherwise qualified handicapped individuals. 1 The FAH Act also was passed in 1973; section 165(b), as amended in 1975, declares that projects funded under the FAH Act must be planned, designed, constructed, and operated to allow effective use by the handicapped. 23 U.S.C. § 142 note. These enactments form the principal statutory bases for plaintiff's complaint. 2

Beginning in 1976, the federal defendants began promulgating regulations to implement the directives of these three statutes with regard to use of mass transit programs by the handicapped. Two basic sets of regulations were issued, one in 1976 and the other in 1979. Plaintiffs allege violations of both. The first set was the "special efforts" regulations, appearing in 49 C.F.R. Parts 609 and 613 (1980), and incorporating provisions now appearing at 23 C.F.R. Part 450 (1981). The latter provisions require that a local planning authority annually prepare and submit to the UMTA for its approval a Transportation Improvement Program (TIP). All funded projects must be part of a TIP, the purposes of which include specifying the improvements to be pursued during the program period, setting priorities, and estimating expenses. Each TIP must contain an "annual element" listing the projects to be implemented that year. The "special efforts" regulations added three new criteria to those governing the UMTA's approval of the TIP: (1) the planning process by which the TIP was developed had to show satisfactory "special efforts" in planning services and facilities that could be effectively used by the elderly and the handicapped, 23 C.F.R. § 450.120(a)(5); 49 C.F.R. § 613.204(a), (2) the annual element of every TIP submitted after September 30, 1976, had to contain projects designed to benefit the handicapped, id. § 613.204(b), and (3) after September 30, 1977, funding recipients had to demonstrate reasonable progress in implementing previously programmed projects, id. § 613.204(c). The regulations did not specify a particular program design that would satisfy the "special efforts" requirement. 3

The second set of regulations was issued in 1979 and appeared in 49 C.F.R. Part 27 (1980). These superseded the 1976 regulations, requiring far more than mere "special efforts." Instead of the relatively mild 1976 requirement that some progress be made, the 1979 regulations substituted a far more exacting scheme by establishing "accessibility" as a goal and by specifying the criteria for determining its achievement in various types of public transportation and

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setting a timetable for accomplishing it. 4 The validity of this second set of regulations was placed in question, however, by the District of Columbia Circuit's decision in American Public Transit Association v. Lewis ("APTA "), 655 F.2d 1272 (D.C.Cir.1981). That decision held that the new regulations were invalid to the extent that they were based on section 504, since they required extensive and costly modifications beyond that section's authority; the Court "remanded" the regulations to DOT to determine whether, in the absence of section 504, they could properly be based solely on the other statutes to which the regulations referred-section 16 of the UMT Act and section 165(b) of the FAH Act. As a result of the APTA case, DOT issued new regulations on July 21, 1981, superseding the 1979 set. See 46 Fed.Reg. 37,488 (1981). These are now codified at 49 C.F.R. § 27.77 (1981). They return essentially to the 1976 model, requiring "special efforts" toward providing transportation usable by the handicapped, rather than achieving a predefined goal of "accessibility" by a certain date.

Plaintiffs' Claims

Plaintiffs allege violations of the three statutes, the 1976 and 1979 regulations, and the Fifth and Fourteenth Amendments. The District Court's opinion provides a thorough account of the factual allegations, which we will summarize here. Plaintiffs' charges pertain to the time period since 1976, when the first set of regulations appeared. Basically, plaintiffs assert the complete inadequacy of the "special efforts" that the local defendants made during that time. Their allegations focus on two main projects proposed in the TIPs for the years in question and intended to satisfy the "special efforts" requirement. The rest was a proposal for specially equipped...

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