Baker v. Bell, No. 79-2173

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, HENDERSON and REAVLEY; ALVIN B. RUBIN
Citation630 F.2d 1046
Decision Date17 November 1980
Docket NumberNo. 79-2173
PartiesWilliam BAKER et al., Plaintiffs-Appellants, v. Dean BELL et al., Defendants-Appellees.

Page 1046

630 F.2d 1046
William BAKER et al., Plaintiffs-Appellants,
v.
Dean BELL et al., Defendants-Appellees.
No. 79-2173.
United States Court of Appeals,
Fifth Circuit.
Nov. 17, 1980.

Page 1047

Donald Juneau, Susan H. Campos, New Orleans, La., for plaintiffs-appellants.

Page 1048

Kent Hull, Ronald M. Soskin, National Center for Law and the Handicapped, Inc., Notre Dame, Ind., for amicus curiae.

Debra J. Fischman, New Orleans, La., for Dean Mell, the Office of Transit Admin., Ernest Morial, City of New Orleans.

Marc J. Yellin, Asst. U. S. Atty., New Orleans, La., Trudy B. Levy, Atty.-Advisor, Urban Mass Transportation Adm., Washington, D. C., for Brock Adams and Richard Page.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Both the Rehabilitation Act of 1973 and the Urban Mass Transportation Act declare that federally financed programs shall be available to handicapped persons. Persons handicapped to such a degree that they are confined to wheelchairs challenge the use of federal grants to the City of New Orleans for the purchase of 175 buses that they will be unable to board and use on two basically different grounds: the action of the federal agencies violates the duties imposed on them as governmental units under applicable departmental regulations, and the action of all of the parties involved violates the personal rights of the physically-disabled persons who join as a class in this suit. We conclude that the district court correctly determined that the agencies had complied with the regulations applicable to them, but that the disabled persons are entitled to court consideration of their personal claims and we, therefore, remand for further consideration of that issue.

I.

This class action on behalf of mobility-disabled individuals 1 seeks to bar the purchase of transit buses by the City of New Orleans 2 and the public utility that operates the City's urban transportation services, New Orleans Public Service, Inc. (NOPSI), with funds provided in major part by a federal grant. 3

The grant was made to finance 80% of the purchase price of 185 new standard size buses to replace older buses now in service on fixed transit routes. NOPSI is to provide the other 20% of the purchase price. Ten of these buses are to be equipped with wheelchair lift devices; the other 175 buses could not be boarded by wheelchair users or others who cannot negotiate steps. The grant is also to fund 80% of the acquisition cost of ten smaller coaches, all lift-equipped, which will be leased by the City to a non-profit corporation to provide transportation for the elderly and handicapped. The local contribution for these ten vehicles will be made by the City of New Orleans.

The plaintiffs charge that, by participating in this acquisition, the local government defendants discriminate against them, violating the duty imposed upon recipients of federal assistance 4 because mobility-disabled

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persons will not be provided with service comparable to that afforded by the 175 buses that they will be unable to use, violating Section 504 5 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department of Health, Education and Welfare (HEW) implementary guidelines promulgated on January 13, 1978, which prohibit discrimination against handicapped individuals under any program receiving federal financial assistance, as well as Section 16(a) 6 of the Urban Mass Transportation Act (UMT Act) of 1964, as amended, 49 U.S.C. § 1612(a), which embodies the policy of nondiscrimination in transportation, and the 1976 Urban Mass Transit Administration (UMTA) regulations promulgated under that provision. Finally, the plaintiffs contend that the purchase would deprive the mobility-disabled class of effective use of public transportation and thus deny them equal protection of the laws, violating the fourteenth amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983. 7

The plaintiffs contend that, by approving the grant to finance the discriminatory acquisition, the federal government officials, who are joined as defendants, violated Section 504 and the 1978 HEW guidelines as well as Section 16(a) of the UMT Act and the 1976 UMTA regulations.

Upon motions by all of the defendants for dismissal or alternatively for summary judgment, the district court concluded that the HEW guidelines promulgated under Section 504 were not yet effective when the grant was approved and, furthermore, were not applicable to the local government defendants. The court also determined that the UMT Act, as interpreted by the controlling UMTA regulations, was satisfied, relying upon the findings of the UMTA Administrator as set forth in the administrative record. The court noted "that all of the claims asserted in this action, with the exceptions of the constitutional and § 1983 claims (which we find to be without merit), may be decided within the framework of judicial review of the final action of the UMTA in approving Capital Grant Project No. LA-03-0015." Thus, the district court, relying solely upon the administrative record and applying the standard of review stated in Section 10(e) 8 of the Administrative

Page 1050

Procedure Act (APA), 5 U.S.C. § 706, concluded that UMTA's decision to approve the grant was not made "arbitrarily, capriciously, or in an abuse of discretion."

Having validated the grant approval by UMTA, the district court concluded that the local government defendants' actions and those of the federal defendants did not violate the controlling UMTA regulations. The agency action in approving the grant authorized NOPSI's anticipatory actions in leasing and operating the transit vehicles. However, the trial court did not consider separately the plaintiffs' claims for relief arising by implication from Section 504 of the Rehabilitation Act as distinguished from their claims that the actions of the federal agencies violated the regulations applicable to agency action promulgated under that statute. 9

In reviewing the claims under the applicable Section 504 regulations, the district court did not conduct a de novo hearing but merely reviewed the administrative record. Because it considered the action solely upon the administrative record, the district court refused to permit discovery by the plaintiff class.

The constitutional claim was dismissed by the district court, citing with approval the rationale in Vanko v. Finley, 440 F.Supp. 656 (N.D.Ohio 1977), i. e., the constitutional provision adds nothing to the plaintiffs' cause of action under the federal statutes, which impose a higher standard than the constitutional provision might require. Finally, having found no violation of any statutory or constitutional provision by the local government defendants, the court determined that the Section 1983 claim lacked merit. Accordingly, the trial court granted the defendants' motions for summary judgment.

II. UMT ACT

Section 16(a) 10 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. § 1612(a), and the regulations promulgated under that section, require governmental agencies to make special efforts to benefit handicapped persons and to include provisions implementing that policy in all programs receiving federal financial assistance. The claimed violation of Section 16(a) by the federal government defendants consists of UMTA's approval of the grant of financial aid to a noncomplying transit authority.

The district court correctly determined that the plaintiffs had standing to contest the validity of UMTA's action in approving the grant. The "three-part test (for standing to contest validity of agency actions) established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Organ., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibition of judicial review." Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979).

Page 1051

The constitutionally-compelled injury-in-fact element of the standing test requires the plaintiffs to demonstrate a sufficiently direct and concrete injury, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 73, 98 S.Ct. 2620, 2631, 57 L.Ed.2d 595, 611 (1978), which is likely to be redressed if the plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450, 462 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450, 460 (1976). The mobility-disabled plaintiffs in the present case have met the constitutional requisite for standing; their injury-in-fact consists of the direct and personal loss they suffer if they are unable to use public transportation.

The second element of the standing test is mandated by the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. and § 701 et seq. A person who is "adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" under Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. A plaintiff satisfies the APA standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970). "The 'relevant statute' is the agency's enabling act or other legislation under which the zone of interests is purported to exist." 5 B. Mezines, J. Stein & J. Gruff, Administrative...

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34 practice notes
  • Cousins v. Secretary of U.S. Dept. of Transp., No. 88-1106
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 7, 1988
    ...from issuing a definitive ruling on this matter, and simply note the different approaches among the circuits. Compare Baker v. Bell, 630 F.2d 1046, 1055-57 (5th Cir.1980) (finding private cause of action against provider directly under section 504) with Marlow v. U.S. Dept. of Educ., 820 F.......
  • Maryland v. Wash. Metro. Area Transit Auth., MV Transp., Inc., Civil Action No. TDC-14-3397
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 13, 2015
    ..."giv[es] legally enforceable rights to the public" in the context of a suit by riders of Boston's mass transit system); Baker v. Bell, 630 F.2d 1046, 1050 (5th Cir. 1980) (holding that mobility-disabled users of public transportation had standing to contest the award of grant funds under th......
  • Dopico v. Goldschmidt, No. 80 Civ. 4562
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 24, 1981
    ...175 (1981). Several courts of appeals, however, have indicated that a private right of action under § 504 exists. E. g., Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); United Handicapped Fed'n v. Andre, 558 F.2d 413 (8th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Lloyd ......
  • Garrity v. Gallen, Civ. A. No. 78-116-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 17, 1981
    ...1980) (catheterization constitutes "related service", which must be provided elementary school child pursuant to § 504); Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980) (remanding to district court for determination whether mobility-disabled plaintiffs' claim for alleged discrimination in mass......
  • Request a trial to view additional results
34 cases
  • Cousins v. Secretary of U.S. Dept. of Transp., No. 88-1106
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 7, 1988
    ...from issuing a definitive ruling on this matter, and simply note the different approaches among the circuits. Compare Baker v. Bell, 630 F.2d 1046, 1055-57 (5th Cir.1980) (finding private cause of action against provider directly under section 504) with Marlow v. U.S. Dept. of Educ., 820 F.......
  • Maryland v. Wash. Metro. Area Transit Auth., MV Transp., Inc., Civil Action No. TDC-14-3397
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 13, 2015
    ..."giv[es] legally enforceable rights to the public" in the context of a suit by riders of Boston's mass transit system); Baker v. Bell, 630 F.2d 1046, 1050 (5th Cir. 1980) (holding that mobility-disabled users of public transportation had standing to contest the award of grant funds under th......
  • Dopico v. Goldschmidt, No. 80 Civ. 4562
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 24, 1981
    ...175 (1981). Several courts of appeals, however, have indicated that a private right of action under § 504 exists. E. g., Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); United Handicapped Fed'n v. Andre, 558 F.2d 413 (8th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Lloyd ......
  • Garrity v. Gallen, Civ. A. No. 78-116-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 17, 1981
    ...1980) (catheterization constitutes "related service", which must be provided elementary school child pursuant to § 504); Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980) (remanding to district court for determination whether mobility-disabled plaintiffs' claim for alleged discrimination in mass......
  • Request a trial to view additional results

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