Boose v. TRI-COUNTY METRO. TRANSP. DIST. OF OREGON

Citations: 587 F.3d 997; 22 Am. Disabilities Cas. (BNA) 1027; 2009 U.S. App. LEXIS 25609; 2009 WL 4020731Docket: 08-35878

Court: Court of Appeals for the Ninth Circuit; November 23, 2009; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The case involves Barbara Boose, the Plaintiff-Appellant, against the Tri-County Metropolitan Transportation District of Oregon (TriMet), the Defendant-Appellee, regarding the obligations under the Americans with Disabilities Act (ADA). TriMet, a public entity providing mass transit in the Portland, Oregon area, has a paratransit service called the LIFT Paratransit Program, which offers door-to-door service for disabled riders. The program, approved by the Federal Transit Administration, serves 22,600 riders and provides over a million rides annually using a fleet of 225 buses and 15 sedans, with backup services from taxi companies when needed. 

Barbara Boose, a LIFT user since 1996 due to a balance disorder, requested in 2006 that her rides be scheduled exclusively in sedans or taxis, as these vehicles mitigate her dizziness and nausea more effectively than the buses. The case raises the question of whether the ADA mandates public transit systems like TriMet to make specific accommodations for disabled individuals in their service offerings.

Ms. Boose's request for accommodations from TriMet, based on a doctor's letter citing traumas from TriMet LIFT bus rides that aggravated her condition, was denied. The doctor recommended the use of sedans or taxis to alleviate her stress. Subsequently, Boose filed a district court complaint claiming TriMet's refusal violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, seeking declaratory and injunctive relief alongside attorneys' fees. Both parties filed cross-motions for summary judgment, with the district court ruling in favor of TriMet and against Boose, prompting her timely appeal.

The appeal centers on whether TriMet must accommodate Boose under a Department of Justice (DOJ) regulation that mandates public entities to make reasonable modifications to avoid disability discrimination unless such modifications fundamentally alter the nature of the service. This is a novel issue for the circuit. Boose and supporting disability rights organizations argue that this DOJ regulation applies to TriMet either independently or through DOT regulations.

While the ADA's Title II prohibits discrimination by public entities like TriMet, the applicability of the DOJ's reasonable modification regulation to LIFT is contested, given that Title II also restricts the DOJ from encroaching on the Secretary of Transportation's authority. Title II, Part A addresses public entities generally, while Part B specifically pertains to public transportation. Section 12143 of Part B mandates that public entities operating fixed route systems provide comparable paratransit services for individuals with disabilities, with the Secretary of Transportation authorized to issue relevant regulations. Boose's requested modification involves scheduling transportation via sedans instead of buses, indicating her dissatisfaction with the current LIFT service level and desire for enhanced service options.

Boose's request aligns with the definition of 'service criteria,' but the absence of a DOT rule on vehicle type scheduling does not allow DOJ regulations to fill this gap. The Secretary of Transportation holds the exclusive authority to establish rules regarding the required level of paratransit services under 42 U.S.C. 12143(c)(3). Boose acknowledges this authority, asserting that the DOJ cannot regulate transportation services, which supports the conclusion that the Attorney General cannot impose requirements on paratransit systems that mandate scheduling by vehicle type. Applying the DOJ's reasonable modification regulation to TriMet would infringe upon the regulatory authority designated by Congress between the Attorney General and the Secretary of Transportation. The DOJ regulation lacks independent applicability in this context, as highlighted in Melton v. Dallas Area Rapid Transit, which stated that modifications relating to paratransit operations are exempt from DOJ regulations. Under the ADA, specifically 42 U.S.C. 12134(a), the Attorney General is explicitly barred from regulating paratransit scheduling matters. Chevron deference dictates that if Congressional intent is clear, further interpretation is unnecessary. The argument referencing 28 C.F.R. 35.102(b) is addressed; while amici interpret 'covered' narrowly, this contradicts the broader jurisdictional scope of the Secretary of Transportation. Thus, regulatory interpretations cannot extend beyond statutory limits, affirming that the Attorney General’s authority is not expanded by the regulations.

A regulation must align with its enabling statute to be valid, and it has been determined that the regulation in question is consistent with the statute. The term "cover" is defined as having sufficient scope to include something, which supports the Secretary's authority to accommodate Boose’s request under Part B, making it not subject to DOJ regulations. Boose claims that the DOJ’s reasonable modification regulation is incorporated into DOT regulations, citing that the DOT regulations do not explicitly mention reasonable modifications except for requirements imposed on private entities. She argues that since the DOT regulations lack inconsistency regarding vehicle scheduling, the DOJ’s regulation applies to her case.

However, this reasoning is flawed because it relies on the incorrect premise that DOT regulations fully incorporate DOJ regulations. The text of 49 C.F.R. 37.21(c) indicates that entities may be subject to DOJ regulations but does not imply wholesale incorporation. The use of terms like "may" and "applicable" shows that the DOT did not intend to incorporate DOJ regulations by reference. In contrast, the DOT has specific provisions requiring private entities to comply with certain DOJ regulations, indicating a clear method of incorporation that is absent in 37.21(c).

The analysis remains unchanged even when considering the mandatory language used in the DOT regulation under the Rehabilitation Act, which also employs the term "applicable," suggesting it does not extend the reach of the ADA or its regulations. Boose fails to provide evidence that the Rehabilitation Act offers greater rights than the ADA for disabled riders of paratransit services, leading to the conclusion that DOT regulations are consistent with one another.

Boose advocates for the adoption of her interpretation of 49 C.F.R. 37.21(c), asserting that the Secretary of Transportation supports her view and that deference should be given to the Secretary's interpretation under Auer v. Robbins. The Secretary's 2006 notice of proposed rulemaking aimed to clarify that public transportation entities must make reasonable modifications for program accessibility, although he acknowledged the lack of explicit language in the DOT ADA regulations mandating such modifications. The Secretary indicated that the regulations were intended to incorporate DOJ provisions on reasonable modifications but has not finalized these proposed rules after three years. A 2008 FTA letter reiterated the Secretary’s stance, yet the court declined to defer to either the 2006 preamble or the 2008 letter, finding their interpretation of section 37.21(c) as incorporating DOJ regulations by reference to be plainly erroneous. The regulation only indicates that other provisions "may" apply and does not impose additional substantive requirements. The court emphasized that deferring to the Secretary's interpretation would improperly allow the agency to create new regulations without going through the necessary rulemaking process. Furthermore, while acknowledging the significance of paratransit for individuals with disabilities, the court reiterated that the ADA mandates only a "comparable" level of service and does not require perfect service. The Secretary retains the authority to define what constitutes "comparable" services, and since the proposed requirement for reasonable modifications is not yet formalized, TriMet is not obligated to implement it. Consequently, Boose cannot establish a prima facie case of discrimination under the ADA or the Rehabilitation Act, leading to the affirmation of the district court's summary judgment in favor of TriMet.

The Honorable Ronald M. Whyte, a U.S. District Judge, references the definition of 'paratransit' as required by the ADA for individuals with disabilities unable to use fixed route services. The LIFT program incurs annual costs exceeding $29 million, with passenger revenues around $1 million, resulting in a net cost of $26.50 per trip, compared to $1.63 for fixed route trips. TriMet uses a self-certification process to determine LIFT eligibility and does not contest Boose's disability status under the ADA. Boose's claims under the ADA and Rehabilitation Act are analyzed similarly, as the ADA is modeled after Section 504 of the Rehabilitation Act. The focus is on whether TriMet has violated the ADA, given that it is a public entity under applicable laws.

According to 42 U.S.C. 12132, qualified individuals with disabilities cannot be excluded from services provided by public entities. The Department of Transportation (DOT) has regulations regarding scheduling for paratransit, which are recognized as service criteria. Although amici disability rights organizations did not argue for a reasonable modification provision under DOT regulations, the DOJ regulations impose this obligation independently. Boose claims that the preamble and appendix of 49 C.F.R. 37.21 imply incorporation of DOJ regulations, but this argument lacks validation.

The Secretary has proposed modifications to ADA and Rehabilitation Act nondiscrimination regulations, which are noted in Boose's brief. The court grants judicial notice of a DOT letter included in Boose's reply, affirming that informal DOT interpretations warrant deference. The DOT's evolving views on reasonable modifications do not undermine its current interpretation, as such changes were subject to notice-and-comment rulemaking, ensuring no unfair surprise. The court finds it unnecessary to address TriMet's safe harbor argument under the ADA. Additionally, motions from disability rights organizations and public transit entities to file amicus curiae briefs are granted.