Boose v. Tri-County Metro. Transp. Dist. of Oregon

• Decision Date: 23 November 2009
• Docket Number: No. 08-35878.,08-35878.
• Citation: 587 F.3d 997
• Parties: Barbara BOOSE, Plaintiff-Appellant, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

587 F.3d 997

Barbara BOOSE, Plaintiff-Appellant, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Defendant-Appellee.

No. 08-35878.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2009.

Filed November 23, 2009.

Karen Berkowitz, Oregon Law Center, Portland, OR, argued the cause for appellant Barbara Boose and filed briefs; Spencer M. Neal, Oregon Law Center, Portland, OR, and Ellen Gradison, Oregon Law Center, Corvallis, OR, were also on the briefs.

Keith M. Garza, Oak Grove, OR, argued the cause for appellee TriMet and filed a brief; Kimberly Sewell, Portland, OR, was also on the brief.

Susan E. Nash, Wesley T. Shih, Avi Braz, and Adam R. Lawton, Munger, Tolles & Olson LLP, Los Angeles, CA;

and Paula Perlman, Deborah Dorfman, and Shawna Parks, Los Angeles, CA, submitted a brief in support of the appellant on behalf of amici curiae Disability Rights Legal Center, Disability Rights California, the California Foundation for Independent Living Centers, the Disability Rights Education and Defense Fund, Inc., Disability Rights Washington, and Disability Rights Oregon.

Tiffany Lorenzen, San Diego, CA, submitted a brief in support of the appellee on behalf of amicus curiae San Diego Metropolitan Transit System.

James LaRusch, Washington, DC; Kenneth Scheidig, Oakland, CA; George Sparks, Sacramento, CA; Madeline Chun, Hanson Bridgett Marcus Vlahos & Rudy, LLP, San Francisco, CA; Gregory Smith, Muncie Public Transportation Corp., Muncie, IN; Tiffany Lorenzen, San Diego, CA; Ben C. Fetherston, Jr., Fetherston Edmonds LLP, Salem, OR; Jenifer Ross-Amato, Denver, CO; and Kevin Desmond, Seattle, WA, submitted a brief in support of the appellee on behalf of amici curiae American Public Transportation Association, AlamedaContra Costa Transit District, CalACT, San Mateo County Transit District, Golden Gate Bridge, Highway and Transportation District, Central Contra Costa Transit Authority, Muncie Indiana Transit System, San Diego Metropolitan Transit System, Salem Area Mass Transit District, Regional Transportation District-Denver, and King County Department of Transportation.

Appeal from the United States District Court for the District of Oregon, Paul J. Papak, Magistrate Judge, Presiding. D.C. No. 3:07-CV-00458-PK.

Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and RONALD M. WHYTE,^* District Judge.

O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether the Americans with Disabilities Act requires public transit systems to make certain modifications to their programs for disabled riders.

I

A

Tri-County Metropolitan Transportation District of Oregon ("TriMet") is a public entity providing mass transportation services in Multnomah, Washington, and Clackamas Counties (generally, the Portland, Oregon metropolitan area). Pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., TriMet has developed and implemented a plan for providing paratransit service for disabled riders unable to use its fixed route system of buses and light rail.¹ TriMet's plan has been approved by the Federal Transit Administration ("FTA"), a division of the Department of Transportation ("DOT"), as meeting the requirements of the ADA.

TriMet's paratransit system, the LIFT Paratransit Program ("LIFT"), provides door-to-door, shared-ride service twentytwo hours a day, seven days a week, in all areas in the TriMet district. See LIFT Rider's Guide 6-7, available at http:// trimet.org/pdfs/lift/liftguide.pdf (last accessed Nov. 15, 2009). LIFT serves 22,600 riders, providing over 3600 rides per day and over a million rides per year.² See LIFT Program Ridership and Service Statistics, available at http://trimet.org/ pdfs/lift/liftannualreport.pdf (last accessed Nov. 15, 2009). LIFT's fleet consists of 225 buses and 15 sedans. When no vehicle is available, LIFT contracts with taxi companies to provide backup service. Currently, LIFT assigns vehicles to riders based solely on the requested pickup time and location.

Barbara Boose, who suffers from a balance disorder, has been approved by Tri-Met to use LIFT since 1996.³ Boose uses LIFT to "get to medical appointments, do her grocery shopping, and generally, to get around." In 2006, she submitted a request that LIFT accommodate her disability by scheduling rides in only sedans or taxis, as she experiences "less dizziness and nausea" in those vehicles than in LIFT buses. Accompanying her request was a letter from her doctor stating that "Ms. Boose has reported a number of Tri-Met [LIFT] bus-associated traumas" that have "aggravat[ed] her condition." He recommended "use of sedans or taxis" to "reduce her neurological & emotional stress." TriMet declined Boose's request.

B

Boose filed a complaint in the district court alleging that TriMet's refusal to accommodate her request violated the ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. She sought declaratory and injunctive relief, as well as attorneys' fees and costs. Boose and TriMet filed cross-motions for summary judgment. The district court granted TriMet's motion and denied Boose's motion. Boose timely appealed.

II

The sole issue presented in this appeal is whether under the ADA and Rehabilitation Act, LIFT must accommodate Boose pursuant to a Department of Justice ("DOJ") regulation requiring public entities to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7). This issue is one of first impression in this circuit.⁴

Boose and the amici disability rights organizations argue that this DOJ regulation applies to TriMet by its own independent force, or in the alternative, through incorporation by reference in DOT regulations. We address these contentions in turn.⁵

A

Boose and amici argue that because Title II, Part A of the ADA, prohibits discrimination against the disabled by public entities such as TriMet,⁶ 42 U.S.C. § 12132,⁷ and the Attorney General has the authority to promulgate regulations implementing Part A, id. § 12134(a), TriMet must follow the Attorney General's reasonable modification regulation.

Applicability of Part A to TriMet does not, however, resolve the issue of whether the DOJ's reasonable modification regulation applies to LIFT, since Part A also specifically prohibits the DOJ from making rules that "include any matter within the scope of the authority of the Secretary of Transportation under section 12143." Id. Hence, we must decide whether the accommodation sought by Boose falls within the scope of that authority.

While Part A of Title II deals with public entities in general, Part B deals with public transportation. See Olmstead v. Zimring, 527 U.S. 581, 589 n. 3, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). Section 12143 under Part B is titled "Paratransit as a complement to fixed route service." 42 U.S.C. § 12143. It provides:

It shall be considered discrimination for purposes of [the ADA] and [the Rehabilitation Act] for a public entity which operates a fixed route system ... to fail to provide ... paratransit and other special transportation services to individuals with disabilities ... that are sufficient to provide to such individuals a level of service (1) which is comparable to the level of designated public transportation services provided to individuals without disabilities using such system; or (2) in the case of response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities using such system.

Id. The Secretary of Transportation has the sole authority to "issue final regulations to carry out this section." Id. § 12143(b). These regulations must establish, inter alia, "minimum service criteria for determining the level of services to be required under this section." Id. § 12143(c)(3).

Boose describes her requested modification as "scheduling transportation for her using TriMet sedans instead of TriMet buses." In other words, she is dissatisfied with the level of service TriMet currently provides through LIFT and would like an enhanced level of service that would enable her to choose whatever vehicle she would like to ride. Boose's request, therefore, fits squarely within the definition of "service criteria." That the DOT has not yet promulgated a rule concerning scheduling by vehicle type⁸ does not mean that the DOJ's regulations automatically fill this regulatory vacuum. Surely the scope of the Secretary's authority exceeds the extent to which he has currently regulated. Indeed, Boose does not try to argue that the Secretary lacks the authority to promulgate such a regulation. She even concedes that "[t]he DOJ cannot promulgate regulations regarding transportation ... services. Only the DOT can do that." We agree. Only the Secretary of Transportation can make rules "determining the level of services to be required" for paratransit. 42 U.S.C. § 12143(c)(3).

If the Attorney General cannot make rules about scheduling paratransit trips by vehicle type, then neither can he make rules that effectively require paratransit systems to schedule trips by vehicle type. Application of the DOJ's reasonable modification regulation to TriMet in this instance would do just that, in violation of the regulation's enabling statute. See id. § 12134(a). We decline to impose a requirement on TriMet that would upset the balance of authority that Congress has carefully allocated between the Attorney General and Secretary of Transportation. Consequently, we conclude that the DOJ's reasonable modification regulation does not, and cannot, apply by its own independent force. See Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir. 2004) ...