For you baseball fans out there, yesterday was a big day. Both the NL Central and the NL West had a one game play in to decide whether they are going to be the division winner or the wildcard. I’m lucky because my native team, the Chicago Cubs, are assured of a playoff spot (wildcard it turns out). My hometown team, the Atlanta Braves, is a division winner. So, I have two teams in the hunt. If you have a team in the playoffs, good luck!

Today’s blog entry is a two-for-one. That is, we will be discussing two cases from the 11th Circuit that came down recently. One we have blogged on already here, and this is the appellate decision. The other is exhaustively analyzed by my colleague Richard Hunt in his blog entry, which can be found here. However, I do want to add a few words beyond what Richard says in his entry. As usual, the blog entry is divided into categories, and they are: court’s reasoning Sierra v. City of Hallandale Beach, Florida-exhaustion; court’s reasoning Sierra v. City of Hallandale Beach, Florida-primary jurisdiction; Sierra takeaways; Kennedy v. OmegaGas and Oil LLC; and Kennedy takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Exhaustion.

  1. We discussed the lower court decision here. So, I refer you to that blog entry for a more complete recitation of the facts. Also, the 11th Circuit decision is published.
  2. Before determining an administrative remedy bars federal court’s jurisdiction, there must be clear and unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.
  3. Plaintiff has not brought a complaint under the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Rather, the complaint was brought under the Rehabilitation Act and title II of the ADA.
  4. Under the well pleaded complaint rule, a litigant gets to choose under what cause of action to sue.
  5. Congress granted the Federal Communications Commission exclusive jurisdiction with respect to any complaint filed under the CVAA.
  6. Issues concerning closed captioning of video content delivered over the Internet can arise in a variety of ways, including in the context of disability discrimination, while issues concerning complaints under the CVAA arise only in one place. In short, the relevant section of the CVAA does nothing more than prevent someone wanting to bring the complaint under that section from doing so anywhere else other than before the FCC. Both the Ninth Circuit and the District Court in Massachusetts, in a case we discussed here, have reached the same conclusions. Cases to the contrary are not persuasive.
  7. Not all plaintiffs are able to sue under the Rehabilitation Act or the ADA.

II

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Primary Jurisdiction

  1. Two factors are utilized for deciding whether primary jurisdiction is an appropriate doctrine to apply and they are: the expertise of the agency deferred to and the need for a uniform interpretation of a statute or regulation.
  2. The FCC itself has indicated a plaintiff is not required to exhaust remedies under the CVAA. That indication comes in two different places. First, when they issued regulations in 1997, the FCC recognized that the statute operated in parallel to other federal statutes on the same subject. Second, the plaintiff in this case when he exhausted his administrative remedies with the FCC, received a reply from the FCC explicitly noting that he had ADA remedies apart from the CVAA.
  3. Since the primary jurisdiction doctrine is prudential and not jurisdictional, the court saw no reason why deference to an agency is appropriate when the agency itself feels that no deference is warranted.
  4. The FCC has no expertise on whether the Rehabilitation Act and the ADA recognizes a cause of action for failure to provide closed captioning.
  5. The FCC’s charge under the CVAA has nothing to do with what constitutes a violation under the Rehabilitation Act or the ADA.
  6. Courts do not automatically grant primary jurisdiction to an agency in interpreting its own statute, let alone a statute over which the agency has no authority.
  7. The statutory interpretation task presented by this case presents no issue demanding the FCC’s expertise.
  8. The case presents no special need for uniformity apart from the general search for uniformity that the law requires. That is, just because you may have divergent interpretation of the ADA and Rehabilitation Act, that does not defeat the statutes themselves.
  9. One plaintiff benefiting from a more favorable interpretation of the Rehabilitation Act or the ADA will not benefit that plaintiff at some other plaintiff’s expense.
  10. Just because it is possible that the plaintiff has filed a claim against the wrong party, that does not defeat the court’s jurisdiction to hear the case.

III

Sierra Takeaways

  1. The decision is published.
  2. One of the things we have seen about this blog, is that many times the various laws bump into each other. This case is a reminder that the plaintiff gets to choose what laws to proceed under. There are a variety of reasons as to why a plaintiff chooses to proceed under one law or the other.
  3. I am not exactly sure I understand the court’s reference that not all plaintiffs are able to sue under Rehabilitation Act or the ADA in the context that the statement arises in the opinion. It is, of course, a true statement especially where the plaintiff does not have a disability. However, if the plaintiff does have a disability and cannot meaningfully access the programs and activities of the public entity or the place of public accommodations, it would seem they could bring suit under the ADA or the Rehabilitation Act in many situations.
  4. An important consideration here, is that the FCC explicitly noted that their jurisdiction over disability discrimination was not exclusive.
  5. There is a difference between plaintiff benefiting from divergent interpretation of statutes v. a plaintiff benefiting at the expense of another plaintiff, which is the case in ratemaking situations.
  6. Assuming a claim is filed against the wrong party, that doesn’t prevent the court from hearing the case in the first place.

IV

Kennedy v. OmegaGas and Oil, LLC

  1. This decision is not published.
  2. For an analysis of this decision, you are not going to do better than Richard Hunt’s exhaustive analysis of this case, which can be found here.
  3. This case should be read with my blog entry discussing how to defend against the serial plaintiff, the defense of which I have been involved with numerous times. That blog entry can be found here.
  4. The critical piece of the decision is the part of the opinion talking about the burden of proof when it comes to readily achievable. The court said that the burden of proof works as follows. First, the plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable. That is, easily accomplishable and able to be carried out with much difficulty or expense under the particular circumstances of the case. Second, if the plaintiff meet this burden, then the defendant bears the ultimate burden of persuasion that the barrier removal is not readily achievable. However, the court goes even further when it says: “The plaintiff’s initial burden is not light. Rather, a plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of the facility. Without evidence of these issues, a defendant cannot determine if it can meet its subsequent burden of persuasion.”

V

Kennedy Takeaways

  1. The decision is not published.
  2. This decision should be used in conjunction with the case discussed in my defending against the serial plaintiff blog entry, which can be found here.
  3. The critical piece of this decision is the court specifically saying that the plaintiff initial burden of production, “is not light.” So, this gives the defense the ability to use the two-step approach discussed in my defending against the serial plaintiff blog entry, and should it continue to go into litigation, then be able to buttress its decisions as to what to fix and when to fix them by forcing the plaintiff to present a significant amount of evidence that the defendant’s determination as to readily achievable is not correct.

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