Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner, ADAPT-W

Citation881 F.2d 1184
Decision Date24 July 1989
Docket NumberNos. 88-1139,ADAPT-W,No. 88-1178,88-1177 and 88-1178,No. 88-1177,No. 88-1139,88-1139,88-1177,88-1178,s. 88-1139
PartiesAMERICANS DISABLED FOR ACCESSIBLE PUBLIC TRANSPORTATION (ADAPT); Disabled in Action of Pennsylvania; The Coalition of Active Disabled of Chester County; The Chicago Council for Disability Rights; The Maryland Alliance of Advocates with the Handicapped; The Wisconsin Disability Coalition; Tulsans for Accessible Public Transit; The North Carolina Alliance of Disabled; The Maine Association of Handicapped Persons; ADAPT of Cleveland; The Coalition of Texans with Disabilities;est on behalf of their members; and Joyce Brock; Michael Landwehr; Susan Deis; Stephanie Cris Matthews; Walter S. Place; Stephen Margolis; Wendy Elliott-Vandivier v. Samuel K. SKINNER, Secretary of Transportation. (Two Cases) EASTERN PARALYZED VETERANS ASSOCIATION, INC., and James J. Peters v. Samuel K. SKINNER, Secretary of Transportation, Appellant inEASTERN PARALYZED VETERANS ASSOCIATION, INC., and James J. Peters v. Samuel K. SKINNER, Secretary of Transportation. (Two Cases) Appeal of AMERICANS DISABLED FOR ACCESSIBLE PUBLIC TRANSPORTATION (ADAPT), et al., inAMERICANS DISABLED FOR ACCESSIBLE PUBLIC TRANSPORTATION (ADAPT); Disabled in Action of Pennsylvania; The Coalition of Active Disabled of Chester County; The Chicago Council for Disability Rights; The Maryland Alliance of Advocates with the Handicapped; The Wisconsin Disability Coalition; Tulsans for Accessible Public Transit; The North Carolina Alliance of Disabled; The Maine Association of Handicapped Persons; ADAPT of Cleveland; The Coalition of Texans with Disabilities;est on behalf of their members; and Joyce Brock; Michael Landwehr; Susan Deis; Stephanie Cris Matthews; Walter S. Place; Stephen Margolis; Wendy Elliott-Vandivier v. Samuel K. SKINNER, in his capacity as Secretary of Transportation. Appeal of EASTERN PARALYZED VETERANS ASSOCIATION OF PENNSYLVANIA, INC. ("EPVA") and James J. Peters, in
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Timothy M. Cook (Argued), Frank J. Laski, Lisa M. Rau, Philadelphia, Pa., Stephen F. Gold, Philadelphia, Pa., for appellant and cross-appellee Americans Disabled for Accessible Public Transp. (ADAPT).

Jeffrey Clair (argued), Peter R. Maier, Michael J. Singer, Mark Stern, U.S. Dept. of Justice Appellate Staff, Civ. Div., Washington, D.C., for appellee and cross-appellant Secretary of Transp.

Richard M. Zuckerman, James D. Fornari (argued), Jarblum, Solomon & Fornari, P.C., New York City, for appellants and cross-appellees Eastern Paralyzed Veterans Ass'n of Pennsylvania and James J. Peters.

Peter S. Greenberg, Joyce S. Meyers, Schnader, Harrison Segal & Lewis, Philadelphia, Pa., for appellant and cross-appellee Eastern Paralyzed Veterans Ass'n, Inc.

Argued Oct. 5, 1988.

Before HIGGINBOTHAM, MANSMANN, and GREENBERG, Circuit Judges.

Reargued In Banc May 15, 1989.

Before GIBBONS, Chief Judge, and SEITZ, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, and NYGAARD, Circuit Judges.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

BECKER, Circuit Judge.

This case, before us on consolidated cross-appeals from the judgment of the district court, requires us to construe a welter of statutory provisions establishing the obligations of recipients of federal financial assistance to provide accessible public transportation for the handicapped. The statutory provisions involved are section 16(a) of the Urban Mass Transportation Act ("UMTA"), 49 U.S.C.App. Sec. 1612(a) (1982); section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794(a) (1982 & Supp. V 1987 & West Supp.1989); section 165(b) of the Federal-Aid Highway Act, 23 U.S.C. Sec. 142 note (1982) (Bus and Other Project Standards); and section 317(c) of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C.A.App. Sec. 1612(d) (West Supp.1989) (originally codified at 49 U.S.C.App. Sec. 1612(c) (1982)). The principal question before us is whether certain regulations promulgated by the Department of Transportation ("DOT") at 49 C.F.R. Sec. 27.95 & 27.97 (1987), delineating local transit authorities' obligations to meet the needs of the disabled, are in compliance with these statutes. The regulations were challenged by seven disabled individuals and twelve organizations, who brought one of the consolidated actions on behalf of themselves and their mobility-impaired members ("ADAPT"), on the grounds that they were in derogation of the applicable statutes.

The first challenged regulation, 49 C.F.R. Sec. 27.95 (1987), gives local governments the option to effectuate the purposes of the statutes through either accessible mass transit, paratransit, 1 or a combination of both. The district court concluded that the regulation was not an arbitrary and capricious exercise of delegated authority and granted summary judgment for the defendant Secretary of Transportation on this issue. Contending that the law requires mainline accessibility, or "mainstreaming," and that the regulations' paratransit-only option obviates that requirement, ADAPT appeals, No. 88-1177.

The other challenged regulation, 49 C.F.R. Sec. 27.97, is a safe harbor provision insulating transit operators that spend 3% of their average operating costs from further liability under the statutes. The district court granted summary judgment for the plaintiffs on this issue, holding that the safe harbor was arbitrary and capricious. The district court set the regulation aside and remanded for further consideration by the Secretary. The Secretary, contending that the safe harbor provision was necessary to keep expenditures for transportation for the disabled within reasonable bounds, as mandated by the statutes, appeals, No. 88-1139. 2

For the reasons that follow, we will affirm, though on remand we will require the district court to set a timetable for the Secretary's further rulemaking.

I. STATUTORY AND REGULATORY HISTORY

The first of the relevant statutes to be enacted was the Urban Mass Transportation Act of 1964, amended by Congress in the Urban Mass Transportation Assistance Act in 1970. The Act provides for federal financial assistance to local transit operators. The 1970 amendments added section 16(a), which declared a national policy that

elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured....

49 U.S.C.App. Sec. 1612(a).

Subsequently, Congress passed section 504 of the Rehabilitation Act of 1973, commonly known as the civil rights bill of the disabled. Section 504, which was introduced by Senators Humphrey and Percy as an amendment to the Civil Rights Act of 1964, provides that:

No otherwise qualified individual with handicaps in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

29 U.S.C. Sec. 794(a). 3

Congress then enacted section 165(b) of the Federal-Aid Highway Act of 1973, which directed that

[t]he Secretary of Transportation shall require that projects receiving Federal financial assistance ... shall be planned, designed, constructed, and operated to allow effective utilization by elderly and handicapped persons who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability ... are unable without special facilities or special planning or design to utilize such facilities and services effectively.... The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons.

23 U.S.C. Sec. 142 note.

To implement these statutory mandates, DOT promulgated regulations in 1976 requiring local planners to 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).

Moreover, two days before the regulations were published, then-President Gerald Ford issued Executive Order Number 11,914, 41 Fed.Reg. 17,871 (1976), directing the Department of Health, Education, and Welfare ("HEW") (now the Department of Health and Human Services, see 20 U.S.C. Sec. 3508 (1982)), to coordinate implementation of the non-discriminatory policy announced in section 504 for all federal agencies.

HEW's guidelines, issued in 1978, required all recipients of federal funds to mainstream handicapped persons by making public transportation "readily accessible to and usable by handicapped persons." 45 C.F.R. Secs. 85.57(a), 85.58(a) (1978). The HEW guidelines stressed that participating programs should authorize those options offering access "in the most integrated setting appropriate." 43 Fed.Reg. 2132, 2138 (1978). With respect to public transportation, the HEW guidelines specifically required retrofitting of subways and buses to make these modes of transportation fully accessible to the disabled. 45 C.F.R. Secs. 85.57(b), 85.58.

Importantly, even though the language of HEW's guidelines appeared to require mainstreaming, HEW was careful not to preclude the possibility of paratransit. HEW stated that it "wish[ed] to make clear that it does not construe [the guidelines] to preclude in all circumstances the provision of specialized services as a substitute for, or supplement to, totally accessible services." 43 Fed.Reg. at 2134...

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