Massachusetts v. E*Trade Access, Inc., No. 03-CV-11206-MEL.

• Decision Date: 21 February 2006
• Docket Number: No. 03-CV-11206-MEL.
• Citation: 464 F.Supp.2d 52
• Parties: Commonwealth of MASSACHUSETTS, The National Federation of the Blind, Inc., The National Federation of the Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi, and Philip Oliver, Plaintiffs, v. E*TRADE ACCESS, INC., E*Trade Bank, Cardtronics, LP, and Cardtronics, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

464 F.Supp.2d 52

Commonwealth of MASSACHUSETTS, The National Federation of the Blind, Inc., The National Federation of the Blind of Massachusetts, Inc., Adrienne Asch, Richard Downs, Theresa Jeraldi, and Philip Oliver, Plaintiffs, v. E*TRADE ACCESS, INC., E*Trade Bank, Cardtronics, LP, and Cardtronics, Inc., Defendants.

No. 03-CV-11206-MEL.

United States District Court, D. Massachusetts.

February 21, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia Correa, Attorney General's Office, Anthony M. Doniger, Christine M. Netski, Sugarman, Rogers, Barshak & Cohen, Boston, MA, Daniel F. Goldstein, Sharon Krevor-Weisbaum, Brown, Goldstein & Levy, LLP, Baltimore, MD, Amy F. Robertson, Timothy P. Fox, Fox & Robertson, PC, Denver, CO, for Plaintiffs.

Douglas P. Lobel, Cooley Godward LLP, Reston, VA, Jenny K. Cooper, Joseph L. Kociubes, Bingham Mccutchen LLP, Boston, MA, Leigh-Ann M. Durant, Nixon Peabody, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

LASKER, District Judge.

The Commonwealth of Massachusetts, the National Federation of the Blind, Inc., the National Federation of the Blind of Massachusetts, Inc., and a number of blind Massachusetts residents (collectively, "Plaintiffs") sue E*Trade Access, Inc. and E*Trade Bank (collectively, "E*Trade"), and Cardtronics, LP and Cardtronics, Inc. (collectively, "Cardtronics")¹, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12182 and 12183. The Plaintiffs seek injunctive relief ordering the Defendants to modify their Automated Teller Machines ("ATMs") so that the blind may have access to and independently use such ATMs.

In February 2005, this Court denied E*Trade's motion for judgment on the pleadings. E*Trade asserted that judgment on the pleadings was appropriate because the Plaintiffs seek relief — specifically, the installation of voice-guidance technology — not required or authorized under the current implementing regulations of the United States Department of Justice ("DOJ"). While I found that the remedy of voice-guidance technology is neither mandated nor required by standard 4.34.5, I ruled that:

The Plaintiffs have put forward a legally sufficient claim that under the existing regulations the Defendants' ATMs are not accessible to or independently usable by the blind. It appears that the Plaintiffs may be able to prove a set of facts that would entitle them to some relief, aside from voice-guidance technology, required by the current DOJ regulations. Although their preferred remedy of voice-guidance technology is not available under the existing regulations, the Plaintiffs can seek "the necessary modifications to the ATMs they [E*Trade] operate or operate and lease, so that blind people may have access to and independently use these ATMs."

Order of February 22, 2005 at 9.

The Plaintiffs now move for partial summary judgment and declaratory and injunctive relief under Count V of the Third Amendment Complaint; the Defendants cross-move for summary judgment on Counts I through V.

I. Analysis

A. Count V

Count V alleges a violation of the ADA's new facilities mandate, 42 U.S.C. § 12183(a)(1). Discrimination for purposes of this subsection includes

a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter.

The Plaintiffs move for summary judgment on the grounds that blind persons do not have access to and cannot independently use Cardtronics-owned ATMs constructed or installed after January 26, 1993, and seek an injunction specifying that the ATMs be brought into compliance with the ADA Accessibility Guidelines ("ADAAG") standard 4.34.5. 28 C.F.R. § 36.401, App. A, 4.34.5 (1991).

Cardtronics responds that: (1) the Plaintiffs request an impermissibly vague and unenforceable "obey the law" injunction; and (2) the Plaintiffs present no factual basis justifying summary judgment on approximately 25,000 ATMs nationwide. Moreover, the Defendants submit that summary judgment should be granted in their favor on Count V because § 12183(a)(1) does not apply to ATMs. According to the Defendants, § 12183(a)(1) encompasses only the construction of facilities for occupancy, not devices that might later be affixed to such facilities.

The Plaintiffs' motion for summary judgment on Count V is DENIED, because genuine issues of material fact remain. While the Plaintiffs present evidence demonstrating that approximately one dozen tested ATMs fail to provide appropriate accommodations and instructions for use by blind individuals, they have made no systematic showing that the entire fleet of Cardtronics-owned ATMs is not accessible to and independently usable by the blind. Although it would be unreasonable and unnecessary to require the Plaintiffs to test every post-January 26, 1993 Cardtronics ATM in order to demonstrate non-compliance with § 12183(a)(1), at the least the Plaintiffs must present a more comprehensive showing that documents the specific types of accessibility problems or design defects encountered in a larger sample of ATMs nationwide, and that explains why and how it is appropriate to conclude that those documented problems pervade the entire Cardtronics fleet. Indeed, it may be that the information necessary to reach such a conclusion may be secured by the relatively simple devices of requests for admissions or interrogatories addressed to the Defendants. However, the Court cannot grant summary judgment as to 25,000 ATMs based only on an extrapolation from the extremely limited data of record. Accordingly, summary judgment for the Plaintiffs is DENIED without prejudice to renewal on the basis of a more substantial factual showing.

The Defendants' motion for summary judgment on Count V is also DENIED. The Defendants assert that § 121.83(a)(1) concerns only the construction of buildings and other facilities for occupancy and does not reach devices, such as ATMs, that might later be affixed to such facilities. In support of this argument, Cardtronics first refers to the language of § 12183(a)(1) and contends that an ATM is manufactured rather than "constructed", and used rather than "occupied". Next, the Defendants point to the DOJ's implementing regulations, which measure the statutory requirement of "first occupancy" by the date that one obtains "building permits" or "certifications of occupancy" for the "facility", and which define "structural impracticability" in relation to "terrain". 28 C.F.R. §§ 36.401(a)(2) and 36.401(c)(1) (1991). The Defendants submit that the events of first occupancy and obtaining building permits clearly do not apply to ATM construction and installation, and that terrain affects only the design of a building, not the design of an ATM. Finally, the Defendants argue that the case law under § 12183 demonstrates that this section of the ADA applies only to the design of facilities for occupancy, and not to fixtures or devices like ATMs. See, e.g., Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F.Supp.2d 707, 710 (D.Colo.2004)(holding that § 12183(a)(1) does not apply to claims concerning alleged inaccessibility caused by movable display racks inside a clothing retailer, because "[t]he legislative history bears out the argument that design and construction refers to actions taken during the building process").

Although these arguments command serious attention, I find that applicable DOJ regulations and interpretative guidelines demonstrate that the new construction mandate does apply to ATMs that are affixed to or built into facilities. DOJ regulations define "facility", for ADA purposes, as "all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located." 28 C.F.R. § 36.104 (1991). Interpretive guidance issued by the Access Board and adopted by the DOJ has specified that to be covered by ADAAG, equipment must be "fixed or built into the structure of a building". 56 Fed.Reg. 35,408 at *12 (July 26, 1991). ATMs fall within the category of built-in equipment subject to regulation under the statute. Id. at *28 (stating that "the legislative history of the ADA specifically mentions automatic teller machines (ATMs) as covered by the accessibility requirements"); see also ADA Title Technical Assistance Manual, § III-5.3000 (1994 Supp.), available at http://wvvw.ada. gov/taman3up.html ("Only equipment that is fixed or built in to the facility is covered by the accessibility standards (e.g., public pay telephones or built-in ATMs)."). Moreover, the Access Board's "Accessibility Guidelines Checklist For Buildings and Facilities", issued in October 1992 to help insure compliance with § 12183(a), includes a technical requirements survey form to assess whether ATMs comply with the statute's requirements. Survey form 22, entitled "Automated Teller Machines", specifically asks: "Are instructions and information for use made accessible to and independently usable by people with visual impairments?" Available at http://www. access-board.gov/adaag/checklist/ATMs. html.

In sum, relevant regulations and guidelines issued by the DOJ and the Access Board seem clearly to establish that built-in ATMs are facilities covered by the new construction mandate. The Defendants present no evidence suggesting that any ATMs at issue in this case are movable structures not contemplated during the building process, as was the case with the display racks at issue in Colorado Cross Disability Coalition. In fact, representations made to the Court indicate...