Zimmerman v. St. of Oregon Dept. of Justice

• Decision Date: 28 July 1999
• Docket Number: No. 97-36101,97-36101
• Citation: 183 F.3d 1161
• Parties: (9th Cir. 1999) SCOT L. ZIMMERMAN, Plaintiff-Appellant, v. STATE OF OREGON DEPARTMENT OF JUSTICE, Defendant-Appellee. Filed
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

183 F.3d 1161 (9th Cir. 1999)

SCOT L. ZIMMERMAN, Plaintiff-Appellant, v. STATE OF OREGON DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 97-36101

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed July 28, 1999

Before: Alex Kozinski, Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

Order; Dissent by Judge Reinhardt

ORDER

The panel has voted to deny the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED.

REINHARDT, Circuit Judge, with whom Circuit Judges PREGERSON and HAWKINS join, dissenting from the denial of reconsideration en banc:

I dissent from the court's refusal to reconsider, en banc, the panel's decision in this important case of national significance. The panel's opinion holding that Title II of the Americans with Disabilities Act (ADA) does not prohibit employment discrimination by public entities is directly contrary to the plain language of the statute, to the clearly expressed intent of Congress, and to the Department of Justice's authoritative implementing regulations. Moreover, the panel's opinion conflicts either directly or indirectly with the position taken by every circuit to confront the question, including ours, see Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1272 (9th Cir. 1998) (applying, without discussion, Title II to employment discrimination claim); Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (holding that Title II applies to employment discrimination); Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998) (applying Title II to employee benefits discrimination claim); Holmes v. Texas A & M, 145 F.3d 681, 684 (5th Cir. 1998) (applying Title II to employment discrimination claim); Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261 (4th Cir. 1995) (applying Title II to employment discrimination claim using same standards as under Rehabilitation Act), as well as with 18 of the 21 published district court opinions addressing the issue.¹ The Ninth Circuit now stands alone in adopting an interpretation of the ADA that deprives disabled persons of a right expressly granted them by Congress -- the right to bring an action for employment discrimination under Title II of the ADA.

Overview

The panel holds that the "plain meaning" of Title II of the ADA excludes discrimination in employment from the other- wise broad anti-discrimination prohibition of that Title. Such is not only not the plain meaning of Title II, but the panel's interpretation is directly contrary to the express language of the Title, to the unequivocal legislative history of the Title and to the uniform administrative interpretations of the Title rendered by the agency charged by Congress with that func- tion. Title II contains two independent clauses, each of which serves to prohibit discrimination in employment. The Title contains no language of exclusion and the panel points to none. Rather it relies on a concept of its own creation -- "inputs" and "outputs" -- a concept found nowhere in the statute, or in any of the pertinent materials, as well as on a structural argument not accepted by any other circuit court. The panel's mode of statutory analysis at most results in a question of statutory ambiguity. However, if Title II were ambiguous, we would still be required by the applicable rules of statutory construction to hold that it covers every form of discrimination, including employment discrimination. Thus, the panel is compelled to base its decision exclusively on its plain meaning argument, an argument that cannot survive serious scrutiny.

A. Plain Meaning of the ADA

The plain meaning of Title II is that it prohibits employment discrimination as well as all other forms of discrimination by public entities against the disabled. The ADA was enacted by Congress in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. S 12101(b)(1). Title II provides that no disabled individual:

shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.

42 U.S.C. S 12132. The panel concludes that this language obviously and unambiguously excludes discrimination in employment from its purview. Yet, there is nothing in the plain meaning of the words that even suggests, let alone man- dates, this result. The words themselves are self-evidently broad and inclusive. There are two clauses; each of which, properly construed, includes a proscription on workplace discrimination.

1. First Clause

The first clause bars discrimination in any of the "programs, services, or activities" of a local governmental entity. The plain and ordinary meaning of "activity" clearly does not exclude hiring or employing workers. Indeed, putting people to work is often the chief "activity" of municipalities. Although Title II does not define these terms, the Rehabilitation Act -- with which Congress specified that Title II is to be interpreted consistently -- does. See 42 U.S.C. S12133 (providing that "remedies, procedures, and rights " under Title II are the same as those provided in S 794a of the Rehabilitation Act); 42 U.S.C. S 12134 (providing that Title II should be interpreted consistently with regulations under the Rehabilitation Act). Section 508 of the Rehabilitation Act defines "program or activity" as "all of the operations" of the govern- mental entity. 29 U.S.C. 794(b); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir. 1997) (holding that "activity" under Title II has same meaning as "activity" under the Rehabilitation Act and includes all operations of the entity).

Furthermore, the Supreme Court has specifically interpreted the "programs and activities" language in the Rehabilitation Act to include employment, and thus to bar employment discrimination. Consolidated Rail v. Darrone, 465 U.S. 624, 631-34 (1984). The language at issue here (Title II) is unquestionably broader than that in Consolidated Rail, particularly as Title II, unlike the Rehabilitation Act, contains an independent discrimination clause banning all dis- crimination, in addition to the clause which the Supreme Court construed: the "programs and activities " provision that is common to both statutes. Thus, there can be no justification for concluding, as the panel does, that Title II is somehow narrower. Indeed, applying Title II to discrimination in employment, the Fourth Circuit concluded that the same standard applies to employment discrimination actions brought under Title II and the Rehabilitation Act, because, as Judge Wilkins wrote for the court, in an opinion joined by Judges Wilkinson and Luttig, "the language of the Rehabilitation Act and Title II is substantially the same." Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261, 1264 (4th Cir.1995). Moreover, the ADA contains a further provision stating that "nothing in this chapter [the ADA ] shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 or the regulations issued by Federal agencies pursuant to such title. 42 U.S.C. S 12201(a). Where, as here, the language is not only similar, but indeed broader, it must be accorded at a minimum the same meaning -- i.e., prohibiting employment discrimination.

The panel attempts to distinguish the Supreme Court decision in Consolidated Rail by pointing out that the Rehabilitation Act, unlike the ADA, was limited to those governmental entities receiving federal funds. Thus, according to the panel, the Supreme Court interpreted the Rehabilitation Act to bar employment discrimination because it was possible that fed- eral funds "may well flow into compensation for employees." The panel overlooks the fact, however, that in Consolidated Rail, the Supreme Court expressly rejected the argument that Congress was concerned about whether the federal funds were to be used to promote employment, and instead said that the Act was intended to "prohibit[ ] employment discrimination regardless of the purpose of federal financial assistance." 465 U.S. at 632.

Despite the overwhelming legal authority that the phrase "services, programs, and activities" under Title II is to be interpreted consistently with the phrase "programs and activities" under the Rehabilitation Act, and thus to include employment discrimination, the panel arrives at precisely the opposite conclusion. In so doing, the panel rests its determination almost entirely on an erroneous and non-existent dichotomy between "inputs" and "outputs," asserting that employment is in the former category, while "programs, ser- vices, or activities" fall within the latter.

The distinction between "inputs" and "outputs" finds no support whatever in the statutory language (or in the legislative or administrative history). Indeed, the approach was first concocted by a district court in Florida in a decision that has since been reversed in an Eleventh Circuit opinion holding that Title II does apply to employment discrimination. See Bledsoe v. Palm Beach Soil and Water Conservation Dist., 942 F. Supp. 1439, 1443 (S.D. Fla. 1996), rev'd , 133 F.3d 816 (11th Cir. 1998).² The input-output format adopted by the panel will plunge district courts, and this court as well, into the impossible task of categorizing municipal and state functions and activities into two newly created categories -- inputs and outputs -- categories heretofore unknown to Congress or the affected...