Iverson v. City of Boston

Decision Date30 June 2006
Docket NumberNo. 05-2697.,05-2697.
Citation452 F.3d 94
PartiesG. David IVERSON and Access with Success, Inc., Plaintiffs, Appellants, v. CITY OF BOSTON, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Nicholas S. Guerrera, with whom Shaheen Guerrera & O'Leary LLC was on brief, for appellants.

Kate Cook, Assistant Corporation Counsel, for appellee.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

This case requires us to decide whether the self-evaluation and transition plan regulations promulgated by the Attorney General under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, are enforceable through a private right of action. Two of our sister circuits have divided over the appropriate answer to this thorny question. Compare Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (holding that the transition plan regulation is not so enforceable), with Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir.2003) (holding that both the self-evaluation and transition plan regulations are enforceable in that manner). After careful consideration, we conclude that recent Supreme Court precedent dashes any hope that these regulations are so enforceable. We also conclude that the plaintiffs' other arguments are unavailing and, accordingly, affirm the district court's grant of summary judgment in the defendant's favor.


Plaintiff-appellant G. David Iverson resides in Boston, Massachusetts. He is a paraplegic who uses a wheelchair in order to move about the city. Paraplegia qualifies as a disability within the meaning of the ADA. See 42 U.S.C. § 12102(2)(A) (defining "disability" for ADA purposes as "a physical or mental impairment that substantially limits one or more ... major life activities"). Plaintiff-appellant Access with Success, Inc. (AWS) is a non-profit group, of which Iverson is a member, that advocates equal access to public programs, services, and facilities for disabled persons.

On August 20, 2004, the plaintiffs filed suit in the federal district court alleging that defendant-appellee City of Boston had failed to provide disabled persons with equal access to its programs, services, and facilities. The gravamen of the complaint was that many municipal facilities, including streets, sidewalks, and public buildings, lacked adequate means of ingress and egress for wheelchair-bound persons. The complaint made particular mention of the condition of municipal sidewalks, charging that they "lack proper curb cuts and/or curb ramps" and "contain obstacles which block or impede the accessible path of travel."

The plaintiffs' complaint contained three statements of claim. Count 1 alleged that the self-evaluation and transition plan regulations promulgated by the Attorney General under Title II of the ADA, see 28 C.F.R. §§ 35.105, 35.150(d), imposed an affirmative obligation on the City both to evaluate its conformance with the ADA and to make structural changes to bring its existing facilities into compliance; that the City failed to satisfy the regulatory mandate within the allotted time frame; and that the plaintiffs were entitled to remedy this failure via a private right of action.

Count 2 of the complaint incorporated the allegations contained in count 1 and charged that the City's default of its regulatory obligations could be corrected through the instrumentality of a private right of action under section 504 of the Rehabilitation Act. See 29 U.S.C. § 794(a) (providing that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, 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"). The plaintiffs represent that counts 1 and 2 are intended to be "mirror images" of each other. Since the parties have briefed and argued this appeal as though the ADA and Rehabilitation Act claims are coterminous, we construe counts 1 and 2 as presenting a single claim. Cf. Theriault v. Flynn, 162 F.3d 46, 48 n. 3 (1st Cir.1998) (noting that "Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act, and is to be interpreted consistently with that provision"). For ease in reference, we discuss that claim in terms of the ADA.

Count 3 of the complaint asserted a parallel state-law cause of action under Mass. Const. art. 114 and Mass. Gen. Laws ch. 93, § 103. The district court dismissed that claim without prejudice for failure to exhaust state administrative remedies. Inasmuch as the plaintiffs do not fault that dismissal, we make no further allusion to count 3.

The City moved to dismiss. See Fed. R.Civ.P. 12(b). As to counts 1 and 2, the City proffered three grounds for dismissal: (i) that the plaintiffs failed to allege any specific injury and, therefore, lacked standing to sue; (ii) that the self-evaluation and transition plan regulations were not enforceable by means of a private right of action; and (iii) that the claims were time-barred.

The plaintiffs directed their opposition mainly to the standing challenge. In an attempt to establish that Iverson and other wheelchair-bound persons within AWS's constituency had suffered concrete injuries as a result of the City's regulatory noncompliance, the plaintiffs served two affidavits.

In the first of these, Iverson chronicled his difficulties in operating his wheelchair in the area near his home due to the substandard condition of municipal streets and sidewalks, protested the dearth of accessible parking spots in the neighborhoods he frequents, and complained of "numerous obstacles to access" at the Boston Public Library. The second affidavit, from another AWS member, contained comparable statements. These two affidavits, the plaintiffs posited, defeated the claim that they lacked standing.

As to the second and third proffered grounds for dismissal, the plaintiffs' opposition reiterated the bald-faced claim that the self-evaluation and transition plan regulations were enforceable by private rights of action. The opposition also explained why, in the plaintiffs' view, no applicable statute of limitations barred the suit. The plaintiffs made no mention of—and no attempt to develop—any alternate theory of municipal liability.

While the plaintiffs maintained that the complaint contained sufficient allegations to establish both standing and a right to relief under Title II, they invited the district court, in the alternative, either to grant leave to amend the complaint to incorporate the factual averments contained in the affidavits or to treat the motion to dismiss as a motion for summary judgment (and, thus, bring the affidavits into play). The district court accepted the second of these alternatives and converted the motion to dismiss into a motion for summary judgment. See Fed.R.Civ.P. 12(b); see also Fed.R.Civ.P. 56(c).

The court proceeded to grant summary judgment in the City's favor. Acknowledging that the plaintiffs had encountered "hindrances" in the use of public facilities and assuming that the City had failed seasonably to comply with the self-evaluation and transition plan regulations,1 the court decided the case on the ground that the plaintiffs had not demonstrated any causal connection between the City's alleged regulatory noncompliance and the plaintiffs' alleged injuries.

The plaintiffs filed a timely motion for reconsideration, see Fed.R.Civ.P. 59(e), asseverating that the district court's judgment rested upon two errors of law, namely, (i) that in finding an absence of causation, the court applied an overly demanding pleading standard and (ii) that the court had disregarded the plaintiffs' barrier-removal claim. Following the summary denial of the motion for reconsideration, this appeal ensued.


On appeal, the plaintiffs' principal position is that the self-evaluation and transition plan regulations are enforceable via private rights of action and that they made out a trialworthy issue as to whether the City had complied with these regulations. Their fallback position is that the case, at the very least, should have been allowed to proceed on their alternate barrier-removal theory. Finally, the plaintiffs assign error to the denial of their motion for reconsideration. After briefly delineating the standard of review, we consider these points one by one.

A. The Standard of Review.

The applicable standard of review is familiar: we assay a district court's entry of summary judgment de novo. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005). In conducting this tamisage, we construe the evidence in the light most flattering to the nonmovants (here, the plaintiffs) and indulge all reasonable inferences in their favor. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). We are not, however, tied to the district court's rationale but may affirm the judgment on any ground revealed by the record. See Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

Summary judgment is appropriate only where the record, construed in the manner limned above, discloses "no genuine issue of material fact" and demonstrates that "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine if "it may reasonably be resolved in favor of either party" at trial, Garside, 895 F.2d at 48, and material if it "possess[es] the capacity to sway the outcome of the litigation under the applicable law," Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (citation and internal quotation marks omitted). The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1...

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