Madsen v. Boise State University
Decision Date | 04 June 1992 |
Docket Number | No. 91-35335,91-35335 |
Citation | 976 F.2d 1219 |
Parties | 78 Ed. Law Rep. 219, 3 NDLR P 107 John W. MADSEN, Plaintiff-Appellant, v. BOISE STATE UNIVERSITY, Defendant-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
John Madsen, Boise, Idaho, pro se.
Donald W. Lojek, Lojek & Gabbert, Boise, Idaho, for defendant-appellee.
Appeal from the United States District Court for the District of Idaho.
Before FARRIS, NORRIS and KOZINSKI, Circuit Judges.
John Madsen sues Boise State University under 42 U.S.C. § 1983, claiming handicap discrimination based on the fact that the University did not offer free handicap parking permits on campus. Madsen claims this is discrimination because all handicap parking spots on campus require a permit (and therefore a fee), whereas there is some non-handicap parking available that students may use free of charge.
Madsen made several calls to the Parking Services Office, Student Special Services, and the Vice President's Office to inquire about the availability of free handicap permits and was told none were available. He did not actually apply for a permit; he did not seek a waiver of the $15 permit fee; he did not pay the $15 and seek a refund. OCR Letter at 3, Finding of Fact 12 (July 2, 1990). 1 Instead, he filed a complaint with the U.S. Department of Education, Office of Civil Rights, alleging that the University had discriminated against him on the basis of handicap by charging $15 for a handicap parking permit. OCR investigated the complaint, and found that the University parking policies did not comply with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The University voluntarily took remedial measures. OCR Letter at 4. Because Madsen himself had never actually applied for a free permit, however, "OCR [was] unable to conclude that the University discriminated against [Madsen], based on handicap, with respect to the handicap parking fee." Id.
Madsen then brought this suit seeking damages based on the fact that he had been denied a free handicap parking permit. The district court dismissed the action for failure to state a claim.
Like the OCR before us, we are confronted with the fact that Madsen never actually applied for a handicap parking permit. His lawsuit is based on the University's policy in the abstract. There is a long line of cases, however, that hold that a plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit. See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-71, 92 S.Ct. 1965, 1968-70, 32 L.Ed.2d 627 (1972) ( ); Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 72, 61 L.Ed. 145 (1916) ( ); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C.Cir.1991) ( ); Oil, Chemical & Atomic Workers Int'l Union v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir.1990) ( ); Doe v. Blum, 729 F.2d 186, 189-90 (2d Cir.1984) ( ); Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. Unit A Sept.1981) ( ); Jackson v. Dukakis, 526 F.2d 64, 65-66 (1st Cir.1975) ( ); Interstate Commerce Comm'n v. Appleyard, 513 F.2d 575, 577 (4th Cir.) (trucker who has never applied for ICC transportation permit has "suffered no legally cognizable injury" from policy), cert. denied, 423 U.S. 840, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).
Requiring a party to have actually confronted the policy he now challenges in court has several prudential and practical advantages. To begin with, it establishes the existence of a well-defined controversy between the parties. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) ( )(emphasis added). This case illustrates how the failure to make a concrete request can leave the dispute between the parties too nebulous for judicial resolution, because the precise nature of Madsen's asserted injury--and the appropriate relief--are unclear to us.
Madsen comes before us arguing that he suffered discrimination on the basis of handicap because he was denied a no-fee handicap parking permit. However, he does not allege that anyone else was given a no-fee parking permit. Therefore the University's failure to issue Madsen a free handicap permit cannot, by itself, be discriminatory. Madsen's real contention is that there are some parking spaces not covered by permits where non-handicapped individuals can park for free, while there are no such handicap parking spaces on campus. See OCR Letter at 2, Finding of Fact 3. Madsen's discrimination claim, then, is based not on the University's failure to give him a free permit, but on its failure to release some (although not necessarily all) handicap parking spaces from the requirement of a paid handicap permit. Indeed, in response to Madsen's OCR complaint, the University installed nine additional handicap spaces, three of which were "designated as available free of charge to handicapped persons ... who do not wish to pay the fee for a general handicap parking permit." OCR Letter, Memorandum of Agreement, at 1. Because Madsen never made a formal request for relief from the University, we are left somewhat at sea about whether the real dispute now before us concerns a claim that he was entitled to a free permit to park in any handicap space on campus or that there should have been some handicap spaces accessible with a special, no-fee permit. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) ( ).
Requiring a formal application as a condition for bringing a lawsuit also serves the salutary objective of ensuring that only those individuals who cannot resolve their disputes without judicial intervention wind up in court. When, as here, the defendant is an institution, a formal application, complaint or petition for relief assures that those in charge are aware of the problem and have a fair opportunity to resolve it. See 13A Wright, Miller & Cooper, Federal Practice and Procedure § 3532.1, at 114 (1984) (). The OCR found that the University had in place formal channels for handling complaints regarding parking. See OCR Letter at 3, Finding of Fact 16. An application for a parking permit, unaccompanied by the normal application fee, but containing a request for a waiver and an explanation for the basis therefor, would have required the University authorities to take formal action--to grant or deny the free permit--or to take some other remedial steps. The University was willing enough to adjust its policies once the OCR determined that those policies were in conflict with the Rehabilitation Act. We cannot presume that they would have been unwilling to waive or change existing policies if faced with a concrete request backed by a sound argument.
Finally, requiring a formal application as the normal prerequisite for bringing a case to court limits those who can claim injury from a policy that may not have harmed them at all, or that they may not have even known about. An application creates a record that the individual in question was, indeed, affected by the challenged policy. Admittedly, this is not a particularly strong consideration in this case, because Madsen does appear to have expressed a genuine interest in the policy in question, and apparently was responsible for the University's decision altering it. But the facts are seldom as clear and undisputed as these. The formal application requirement--as our caselaw establishes--presents a bright line separating those who have suffered from the challenged policy and those who have not.
The only remaining question is whether Madsen's case falls within that small class of cases where a formal application is unnecessary on the ground of futility. To begin with, it is unclear whether futility can, by itself, establish standing where it does not otherwise exist. It may well be that futility excuses some aspects of proving injury-in-fact while standing, a constitutional requirement, may not be so easily finessed. Cf. Lujan v. Defenders of Wildlife, --- U.S. ----, ---- - ----, 112 S.Ct. 2130, 2144-45, 119 L.Ed.2d 351 (1992) ( ). We need not resolve this issue because Madsen fails to allege sufficient facts supporting his futility claim. OCR's finding--incorporated by Madsen into his complaint--is that "[t]he position of University officials knowledgeable about campus parking is that parking permit fees may not be waived...
To continue reading
Request your trial-
Indep. Housing Services v. Fillmore Ctr.
...has been no holding on the question in the Ninth Circuit, but it was addressed by Judge Norris in dissent in Madsen v. Boise State University, 976 F.2d 1219, 1225-26 (9th Cir.1992). Judge Norris concluded that section 504 does not preclude a section 1983 action. He noted that a court is "no......
-
Arizona Yage Assembly v. Garland
...Plaintiffs are required to petition for an exemption or a new rulemaking. See 5 U.S.C. §§ 702, 704, 706 ; Madsen v. Boise State University , 976 F.2d 1219, 1220 (9th Cir. 1992). Then, if the DEA denied the petition or refused to respond to it, Plaintiffs could argue they were harmed because......
-
Md. Shall Issue, Inc. v. Hogan
...never even applied for a permit, much less been denied one" and "cannotdemonstrate an actual injury"); Madsen v. Boise State Univ., 976 F.2d 1219, 1220 (9th Cir. 1992) (per curiam) ("[A] plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually......
-
Bezet v. United States, CIVIL ACTION CASE NO. 16–2545
...Id. at 166, 92 S.Ct. 1965.209 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).210 See, e.g. , Madsen v. Boise State Univ. , 976 F.2d 1219, 1220 (9th Cir. 1992) ("There is a long line of cases, however, that hold that a plaintiff lacks standing to challenge a rule or policy to which......