Previously, I blogged on the oral argument in Earll v. eBay and Cullen v. Netflix. On March 19, 2015, the District Court in Vermont came down with this decision in National Federation of the Blind v. ScribD. That decision bears reviewing.

I
Facts:

ScribD is a California-based digital library operating reading subscription services on its website and on applications for mobile phones and tablets. Its customers pay a monthly fee to gain access to the collection of over 40 million titles, including e-books, academic papers, legal filings, and other user uploaded digital documents. The software program is accessed over the Internet and is not accessible to users that use a visual interface exclusively and lack any nonvisual means of operation. As a result, plaintiff brought suit saying that ScribD denies blind persons access to all of the services, privileges, advantages, and accommodations that ScribD offers and is excluding them from accessing information critical to their education, employment, and community integration.

II
Court’s Reasoning for Denial of Motion to Dismiss

1. In order to make a prima facie case under title III of the ADA, a plaintiff has to show: A disability within the meaning of the ADA; defendant owns, leases, or operates a place of public accommodation; and the defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the services the defendant provides. The defendant argued that the plaintiff’s had not sufficiently alleged that it owned, leased, or operated a place of public accommodation.

2. The court cited to the text of title III, which states that no individual can be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation. 42 U.S.C. § 12182(a).

3. The court then lists the places of public accommodation, which can be found at 42 U.S.C. § 12181(7).

4. The court then goes into detail how the courts are all over the place with respect to whether a web-based business or even the web aspect of a brick-and-mortar business must comply with title III of the ADA. It noted that in the Ninth, Third, and Sixth Circuits, courts have held that title III of the ADA did not apply because of insufficient connection between the discrimination alleged and a physical place. However, in the 11th Circuit, the court there held that title III of the ADA covered both tangible and intangible barriers. The court also noted that in the First Circuit and in the Seventh Circuit, courts there have held that places of public accommodations are not limited to physical structures.

5. In the Second Circuit, the Second Circuit has held that title III prohibits the refusal to sell merchandise by reason of discrimination against the plaintiff’s disability. That decision, to the court’s mind, would logically extend imposing barriers on a person with a disability ability to access the merchandise, which is essentially the same effect as to where a company’s refuses to sell a person with a disability merchandise on the Internet. To hold otherwise, would allow a company to refuse to sell it goods or services to a person with a disability so long as it does so online rather than within the confines of a physical office or store. Such a holding makes no sense.

6. The court cited with approval National Association of the Deaf v. Netflix, Inc., which I blogged on here, for the proposition that the ADA covers not only transactions taking place over the phone or through correspondence, but also with equal force to services purchased over the Internet, and that when the ADA was passed, Congress intended the ADA to adapt to changes in technology. Accordingly, the court agreed with Judge Ponsor in NAD v. Netflix, that a plaintiff only has to show that the website fell within one of the general categories enumerated in the statute in order to be covered by title III of the ADA as a place of public accommodation.

7. ScribD did make the argument discussed in my blog entry discussing the oral argument in eBay and Cullen before the Ninth Circuit, that if a place of public accommodation is not construed to be a physical space, then Congress using the word, “place” improperly renders the word superfluous. The court was having none of it for the following reasons:

A. The title of the relevant section is “public accommodation,” and the categories and the definition are also described as, “public accommodations.” 42 U.S.C. § 12181(7). In neither situation, does the ADA use the word place, which thereby suggests that the accommodation has to be available to the public but not necessarily at a physical place open to the public.

B. In other instances, the statute uses the word, “establishment” instead of the word, “place.” 42 U.S.C. § 12181(7)(B). That suggested to the court that the word “place,” was used because there wasn’t any less cumbersome way to describe businesses offering those particular goods or services to the public.

C. Where there are instances where the word “public,” appears, the word is modifying the types of goods or services offered rather than the word, “place.” 42 U.S.C. § 12181(7)(D).

D. Reading the statute to extend beyond physical places open to the public, does not eliminate the need to demonstrate inclusion in one of the broad categories of public accommodations listed in title III of the ADA.

E. Relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, the court noted that Carparts mentioned that travel services were included as an example of a service establishment considered a place of public accommodation, and even back in 1990, it was entirely possible that a travel service might operate without a physical location open to the public and conduct business directly by phone or by mail. Thus, by logical extension, “place,” or “establishment,” could refer to services provided off-site, including the Internet.

F. Requiring a physical structure has some connection to a physical threshold results in arbitrary treatment. To the court, it made little sense for the law to allow for discrimination against a person with a disability where the defendant sells policies door-to-door but to not allow discrimination against a person with a disability if the parent company’s office was covered. The court found it very unlikely that Congress could’ve intended such an inconsistent result.

G. Citing to PGA Tour v. Martin, the 12 categories of public accommodations should be construed liberally in order to for persons with disabilities to have equal access to the wide variety of establishments available to those without disabilities. Further, the court found support for construing public accommodations liberally in legislative history.

H. The committee reports suggest that the important quality public accommodations share is the offering of goods or services to the public and not that they offer goods or services to the public at a physical location. What matters is membership in one of the general categories.

I. The Department of Justice final regulations implementing title III of the ADA, 28 C.F.R. § 36.104, define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock for other conveyances, roads, walks, passageways, parking lot, or other real or personal property, including the site where the building, property, structure, or equipment is located.” The plain language of that regulation does not require that an entity’s facility be open to the public.

J. DOJ in several different ways, which has been discussed numerous times in this blog, has interpreted their regulation to apply to the Internet, and is in the process of promulgating regulations codifying the position that the ADA does apply to the Internet. The court says that the DOJ interpretation of the regulation is entitled to deference.

K. The fact that Congress did not amend the ADA to include Internet accessibility when it enacted the amendment to the ADA is of no significance since there could be a lot of reasons why Congress did not do that.

L. Representative Nadler in 2010 said that Congress when it enacted the ADA understood that the world around them would change and believed that nondiscrimination against persons with disabilities needed to be broad and flexible enough to keep pace.

M. Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

8. ScribD could fall into any of several categories of public accommodations, including: exhibition or entertainment; sales or rental establishments; service establishment; library; gallery; or a place of public display or collection.

III
My Thoughts

1. First, in the interest of full disclosure, this whole blog entry has me very conflicted. My law practice and this blog are devoted to understanding the ADA. On the other hand, I have to use voice dictation technology in order to use the computer. None of my blog entries would’ve happened without it. For that matter, nor would anything that has anything to do with the computer happen without it. Also, I can’t tell you how many times I have tried to use a product on the Internet that is not accessible to voice dictation technology. Some of those products have not been accessible to voice dictation technology as well as to screen readers. However, I have run into a situation where product was accessible to screen readers but not to voice dictation technology. Being unable to use voice dictation technology with respect to the Internet, is extremely frustrating and makes things more inefficient for me than they need to be. That said, my blog is about understanding the ADA and not about advocating a particular point of view. Therefore, what follows is focused on that and does not necessarily reflect my personal opinion (my personal opinion would be that the ADA should apply to the Internet and that businesses should do it anyway because they are cutting down their customer base if they fail to do so). That said, that doesn’t mean the law gets you to the same place unless Congress amends it. Let’s discuss further.

2. The United States Supreme Court when trying to figure out what a statute means, often goes to dictionaries. So, I decided to do the same thing by looking up the word, “place” on the Internet. It is interesting what I found. When I asked Siri to define the word, I got, “a portion of space whether definite or indefinite.” When I asked Merriam-Webster to define the word, all of the possibilities clearly denoted a physical space. When I asked the free dictionary to define the word, I got, “a particular portion of space occupied by a person or thing.’ I also got a business establishment. When I asked the Oxford dictionary how to define the word, I got, “a particular position or point in space.” So, reviewing the possible definitions. The dictionary.com definition suggest that a place of public accommodation could be physical or otherwise. Merriam-Webster suggests it has to be physical. The free dictionary.com definitions are very interesting in two respects. First, a place could be a particular portion of space occupied by a person or thing. If you think about the Internet, when you are on the Internet a strong argument can be made that the person is occupying that space and it therefore, is in a place. Even if you can argue that the person is not in that place, a thing, namely your mouse (which is being controlled by that person), most certainly is. Also, nothing in this case suggests that the court looked to free dictionary.com to define the term, but it is interesting that this particular dictionary defines a place as a business establishment thereby supporting the reasoning of the ScribD court. The Oxford dictionary definition suggest that a physical place is not required for it to be a place. In short, the United States Supreme Court loves to go to the dictionary (from reading a biography of Justice Scalia, he has a particular dictionary that he likes to use), but here the dictionary definitions are all over the place, though the majority of them seem to suggest a place does not have to be physical.

3. I didn’t go into detail as to which decisions, with few exceptions, were cited by the ScibD court because I discussed many of those decisions in my book, where I have a section of chapter 13 devoted to the Internet and title III of the ADA.

4. We know that a particular product does not have to be accessible to a person with a disability. However, it is ingenious as to how this complaint was phrased. That is, the complaint says that persons with visual impairments are being denied services, privileges, advantages, and accommodations of ScribD. ScribD is most likely a product in the genre of, “software as a service,” which is a huge industry. That leads to the question as to whether ScribD is a product or a service. Services, privileges, and advantages have to be accessible but products do not. Therefore, expect a lot of discovery trying to determine whether ScribD is a product or a service.

5. ScribD is a California outfit and yet the case was brought in Vermont (no doubt due to favorable court decisions within that Circuit). If “place,”
is found to include the Internet, ScribD could be facing substantial damages under California law.

6. Much of this decision is a policy decision , but not all judges are persuaded by policy. It becomes a matter of judicial approach. For example, I certainly do not want to put words in Justice Breyer’s mouth and so if I am not getting it quite right forgive me, but I did have a chance to hear him in person once. The way I understood what he said is that when it comes to his judicial philosophy, he looks at a situation, and then asks how does it play out in a way that makes sense, which necessarily leaves room for some degree of policy. On the other hand, some justices are very focused on plain meaning and to them how “place,” is defined by the dictionary is going to be critical. Unfortunately, for justices that would use that approach, the word, “place” has different meanings depending upon the dictionary that is consulted.

7. There is a line of cases too numerous to recount that says a statute should not be interpreted in a way that lends absurdities to the statute.

8. Again, a matter of judicial approach. There are judges that will not even consider legislative history unless the term itself is vague. Considering the variety of definitions offered by different dictionary, this may well be such a situation. If so, that bodes favorably for persons with disabilities.

9. The Department of Justice final regulations refer to equipment. I think it likely that the final regulations would be given Chevron deference (though, in my opinion, there is a very good possibility that the Department of Justice interpretations of the regulations will not be given deference as I discussed in this blog entry). One wonders if an argument can be made that equipment includes the server that makes the website go. If so, a plaintiff could argue that failure to have the website accessible means they are being denied access to certain equipment, i.e. the server aka web site.

10. There is also a line of cases too numerous to recount that says Congress is presumed to know what is doing when it amends a law and doesn’t change it. The court here ignores that line of cases when it says that Congress could have a zillion reasons as to why it doesn’t amend the law, and therefore, the fact that it did not amend the law should not be given consideration. I don’t look for that statement to prevail in the end because, as mentioned above, that particular rule puts the burden on the defense when a long line of cases put the onus on the plaintiff to show that failure to amend the law should not be given consideration.

III
Conclusion

1. I absolutely believe this statement of the court mentioned above:

Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

Unfortunately, for me, and consistent with the purpose of my law practice and this blog, just because this is absolutely true doesn’t necessarily mean that it is supported by the law.

2. Before the NCAA tournament started, it was a given that the University of Kentucky would win it all. After the Notre Dame game, that may or may not be true. I can say with virtual certainty that United States Supreme Court will be faced with the question whether web-based businesses are subject to title III of the ADA if not with eBay and Cullen, perhaps with ScribD.

Yesterday, the United States Supreme Court heard oral argument (the transcript can be found here), in Sheehan v. City and County of San Francisco, which I discussed in this blog entry. I’ve got to admit that this argument did not go anyway along the lines that I thought it would and here is why:

I
City’s Argument

1. The question that the United States Supreme Court granted cert. on was this:

Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

But here is the thing. Before the attorney for the City and County of San Francisco could even begin talking, Justice Scalia was all over her. In particular, he noted that the argument made in their principal brief did not address the question on which the Supreme Court granted cert. Justice Sotomayor then chimed in by saying that nowhere in their brief do they raise the argument that the ADA stops at direct threat.

2. Under questioning from Justice Alito, the attorney for San Francisco conceded that under title II of the ADA failure to make an accommodation for disability is discrimination and that being arrested was an activity of the state subject to title II of the ADA.

This is interesting because Justice Alito seems to be asking whether discrimination under the ADA meant something different than discrimination in ordinary parlance. Justice Alito’s point is a very important one. It is my view that the ADA set up is such that discrimination with respect to disability discrimination is very different than discrimination in the ordinary parlance because of the mandate of reasonable accommodations and reasonable modifications. I have certainly seen other attorneys make the assumption that discrimination means the same as it does in ordinary parlance, and so Justice Alito is not alone on that score. However, Justice Alito’s point was never really addressed, but will undoubtedly have to be addressed in the future. For reasonable accommodations and reasonable modifications to survive, the answer to this question must be that discrimination is not the same in the typical sense as it is under the ADA.

3. The attorney for the City and County of San Francisco conceded that the ADA imposes vicarious liability on the entity for the actions of its employees.

4. The attorney for the City and County of San Francisco also conceded that under title II of the ADA, the City is liable for damages if it engages in intentional conduct, which the “Ninth Circuit has expanded that to include deliberate indifference as well.” This concession by the attorney for the City and County of San Francisco seems to imply that intentional conduct may include deliberate indifference as well as other things. This concession assumes that title II applies in the first place, which Justice Scalia pointed out was not an argument set forth in their petition. In response to Justice Scalia’s question, the attorney for the City and County of San Francisco said that title II applies but that accommodations were not required where the individual was armed and dangerous. The attorney uses the term, “significant threat.”

5. Since the City and County of San Francisco was arguing something along the lines of direct threat, Justice Sotomayor wondered why that wasn’t a question for the jury. In response, the attorney for the City and County of San Francisco claimed that no reasonable jury could conclude that there was no significant danger here.

I am not sure that is correct. As pointed out by Justice Sotomayor, the regulations make clear that direct threat must be based upon an individualized assessment using a reasonable judgment relying on current medical knowledge or the best available objective evidence to ascertain the nature, duration, severity of the risk, the probability that the potential injury will occur, and whether reasonable modifications will mitigate the risk. The evidence would have to be fairly overwhelming to decided this as a matter of law, which doesn’t seem to be the case here. Also, it is interesting that the words “significant danger/threat,” are being used, since direct threat under the applicable Department of Justice regulations, as pointed out by Justice SotoMayor, means something else entirely.

II
U.S. Argument

With respect to the United States position in this case, it was a bit odd and here is why:

1. United States view is that the ADA does apply to arrests because title II of the ADA applies broadly to any department or agency of the local government, including police. It also applies broadly to activities, services, and programs, which also includes arrests. Further, there is no circuit split on that issue and the ADA contains no exemption for police activities.

2. United States agrees that vicarious liability exists for the entity for the actions of its employees that occur in violation of title II of the ADA.

3. The United States was of the view that when it comes to arrests, the police should be given the benefit of the doubt. That is, the court should adopt the view that is adopted in Barnett (a case in which the United States Supreme Court said that given a seniority system, in the run of cases a transfer will not be allowed unless a showing of special circumstances is made). Similarly, the United States argued that when it comes to arrests, a title II violations should not occur in the run of cases unless the plaintiff could show special circumstances.

The problem here is that as far as I know, nobody knows what in the run of cases means. Also, special circumstances doesn’t offer much guidance, a point made by Justice Kennedy.

III
Sheehan’s Argument

1. Sheehan’s attorney argued that the principal dispute in this case is a factual and not a legal one. Justice Scalia’s response is very telling: “exactly. I don’t know why we took the case.” In response, Sheehan’s attorney says that the court should consider dismissing the case as improvidently granted, which basically means the United States Supreme Court said that it was mistake to take the case in the first place. The result of which is the decision below would stand.

2. Sheehan’s attorney argued that under the title II regulations, danger to self is not a part of the direct threat defense. Accordingly, even assuming that a person was a direct threat to self, since the regulations don’t encompass that, the duty to accommodate still exists.

This is interesting because it is the flipside of what the United States Supreme Court faced in Chevron v. Echazabal, where the United States Supreme Court held that the EEOC was within its rights to find that direct threat included a danger to self as well as to others. Now, it is essentially being argued that the Department of Justice is within its rights to say that direct threat does not include a danger to self. As pointed out earlier by Justice Sotomayor, nowhere in the papers below did the City and County of San Francisco raise the direct threat argument.

3. Barnett worked in the union situation but doesn’t work here. That is, in the union situation, there was a direct conflict between the proposed accommodation (transferring the employee), and the employer’s seniority rules. Therefore, it made sense for the United States Supreme Court to add an additional burden to the plaintiff. However, Sheehan’s attorney argued that the symmetry was completely different here. That is, there was a symmetry between the proposed accommodation and the way that the City trains its officers as a universally accepted means for dealing with persons with mental health issues. Further, the concept of direct threat is very analogous to the concept of reasonable force that the police have to use under the fourth amendment and they are used to dealing with that every day.

4. While it is true that one Circuit has said that the ADA does not apply if a person is armed and dangerous, that issue is not before the court since nobody was arguing that.

5. The special circumstances test proposed by the United States violates and undermine the regulatory framework of the ADA. Further, the test proposed by the United States government puts their from on the scale in addition to changing the regulatory framework without having given the lower court opportunity to develop the issue.

6. The standard proposed by Sheehan’s attorney was that if the direct threat defense is not satisfied, a person with a disability must be accommodated.

7. Sheehan’s attorney argued that if a police officer knows or could reasonably determine (knew or should have known), that an individual is suffering from a mental disability, then the ADA reasonable accommodation requirements apply.

This particular argument led to a very interesting discussion, and which a very important point was missed somehow. That is, the question of whether it matters why a person is acting in a dangerous and violent way (is it because of a disability or is it because of something else?) Sheehan’s attorney says that the difference matters because of when ADA liability occurs, though for fourth amendment purposes, reasonable force doesn’t make those distinctions-though it does take into account diminished capacity. Here is my problem. The ADA also protects someone who is regarded as having a disability. It wouldn’t be hard to show that in “the run of cases “in this situation, a police officer could well regard a person acting in such a way as having a disability. It would’ve been interesting to see what would have happened if the regarded as argument had been made.

8. Both Sheehan and the City and County of San Francisco agree that the direct threat regulations of the DOJ apply to this case; it is only the United States that has a different standard.

9. Sheehan’s attorney went on to address the issue of qualified immunity, but the entire discussion reads as an afterthought (just consuming four pages of the 56 pages of transcript). That said, there was some discussion about whether the standard involved the law in general or just that in the controlling jurisdiction.

10. In summing up, Sheehan’s attorney said that the use of deadly force on people with mental illness was a real problem in society and that officers and public entities would only change when they are held accountable for those actions. Living here in Atlanta, just within the last couple of weeks, we had a situation where an officer shot and killed a naked veteran with mental health issues.

IV
So what is going to happen:

1. Reading tea leaves with the United States Supreme Court, especially in ADA matters, is impossible. True, with respect to employment, persons with disabilities frequently do not fare well. However, persons with disabilities do much better with United States Supreme Court when it comes to matters outside of employment. Also, here the case got argued in one way but the petition for cert. and the City and County of San Francisco’s brief suggested it would be argued another way. Thus, it wouldn’t surprise me to see the United States Supreme Court decide that the petition was improvidently granted. Keep in mind, Justice Breyer is not participating in this case because his brother was the District Court judge in this case. I suspect that there may be four votes and possibly more for improvidently granting cert.

2. The special circumstances test proposed by the United States government is probably not likely to be adopted, assuming the United States Supreme Court doesn’t say that Certiorari was improvidently granted, since Justice Kennedy did not like the test at all.

3. All parties agreed, except for the United States as amicus, that the direct threat regulations applied, though they differed in how the regulation should be interpreted.

4. Not before the court was whether the Department of Justice has the authority with respect to direct threat to exclude direct threat to self. That is the complete reverse of Chevron v. Echazabal, where as mentioned above, the United States Supreme Court held that the EEOC was within its rights to say that direct threat included threat to self.

This week is a two fer. At 11 AM Eastern time, the United States Supreme Court will hear argument in Sheehan (my blog entry on that case can be found here). I promise that I will read the transcript of the argument and post my analysis this week.

This particular blog entry involves two different cases questioning whether the ADA applies to web-based only businesses, both of which were argued to the Ninth Circuit on March 13, 2015, four days AFTER Perez.

Earll involves the situation where a deaf individual wanted to be an eBay vendor but could not be because the certification that she had to do in order to become an eBay vendor involved having to listen over the phone, and she of course could not do that since she was deaf. Cullen is the California version of the case discussed in this blog entry.

Here is how the argument before Judges McKeown, Murguia, and Friedland went (interesting that I could not find a way to read the transcript or a way to view the oral argument with closed captioning. Not sure if that was my technical skills or the ways don’t exist…:-).

Plaintiff (Earll)

1. The statement of interest from the Department of Justice saying that the ADA applies to web only based businesses is entitled to Chevron deference.

A. The Department of Justice specifically says that they are interpreting regulations of the ADA in reaching this conclusion.

2. Weyer v. 20th Century Fox Film Corporation, 198 F.3d 1104 (9th Cir. 2000), is no longer good law in light of Spector v. Norwegian Cruise Line, Limited, 545 U.S. 119 (2005).

A. Quite a bit of debate ensued between the judges and the appellant as to whether Spector even applied.

3. The appellant never cited to either National Association of the Deaf v. Netflix , 869 F. Supp. 2d 196 (D. Mass. 2012), or to Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999), though the judges did in response to the appellee’s arguments.

4. A very technical discussion ensued as to whether certain arguments could be made in light of the way the documents were filed and the arguments made in those documents.

eBay (Appellee)

1. Weyer is the law in the Ninth Circuit and it insists on an actual physical place.

2. National Association of the Deaf v. Netflix is simply not good law and should not be persuasive to the Ninth Circuit because it relied on Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, 37 F.3d 12 (1st Cir. 1994), which was a policy driven decision and not a decision based upon statute. That is, the plain meaning of title III of the ADA is that places of public accommodations are subject to its requirements. The emphasis is on the term, “place.”

3. Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999), statement that the ADA applies to electronic space is dicta.

4. Attorney for eBay conceded essentially that it goes too far to say that any website is not subject to the ADA, but it is consistent with the ADA to say that web-based only businesses are not subject to the ADA. In other words, in essence, the attorney for eBay was essentially saying that National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006), is good law.

5. The attorney for eBay actually argued the Spector case before the United States Supreme Court, and he said the issue was not whether the ship was a place of public accommodation as a ship is most certainly a place. Rather, the issue there concerned foreign flag vessels and whether they were subject to the ADA.

Cullen v. Netflix

Appellant (Cullen)

1. The ADA contains gaps that could be filled in by the appropriate federal agency and those gaps should be given Chevron deference.

2. The Department of Justice interpretation of the regulations trumps Weyer

3. The Department of Justice interpretation of the regulations may be found in an appendix. A considerable debate ensued about whether the appendix was interpretation or whether it was a regulation. The attorney for Cullen eventually had to say under intense questioning by one of the judges on the panel that the interpretation was not a regulation but rather an interpretation codified as part of a regulation.

Appellee (Netflix)

Cullen waived an independent disabled persons act claim but not the state law claims based upon the ADA.

My thoughts:

1. There was an awful lot of argument about whether the Department of Justice interpretation of what the ADA requires and its regulations should be entitled to Chevron deference. Bottom Line here is that the United States Supreme Court will not have to wait until the Department of Transportation regulation discussed in Perez makes its way through the court system before deciding the level of deference interpretation of regulations if this case gets a hearing before the United States Supreme Court after the Ninth Circuit decides it. If the Ninth Circuit finds that the interpretation of the regulations is entitled to deference, then the issue is squarely before the United States Supreme Court per Perez. Therefore, if the Ninth Circuit Court of Appeals holds that the Department of Justice interpretations of the regulations contained in their statement of interest and in the appendix are entitled to Chevron deference (as Perez makes clear, Chevron deference may not be the appropriate term since it is the agency’s interpretation of regulations that are involved here), then the issue will be squarely before the United States Supreme Court. While Perez did not come up by any of the attorneys or the judges in the argument, one has to believe that it will be a critical feature of the panel decision in this case. It is curious that none of the attorneys or the judges brought up Perez as that case, admittedly decided only four days prior to this argument, was very much lurking in this oral argument.

2. It is a pretty powerful argument when an attorney that has argued a case before the United States Supreme Court comes back with a statement saying that a particular case the appellant is arguing does not stand for what the appellant says because I argued that case and I was there. I am inclined to agree with that attorney. The issue in Spector was the foreign flag question and not whether the ship was a place.

3. The statement in Doe v. Mutual of Omaha Insurance Company that the ADA applies to electronic space is most certainly dicta as the case had nothing to do with that particular statement. That said, the fact that Judge Posner made that statement is an important consideration.

4. National Federation of the Blind v. Target got a big shot in the arm from this argument when eBay essentially says that it is good law. That is, eBay essentially conceded that a website if it is a gateway to a brick-and-mortar store, then that website must be in compliance with the ADA.

5. The attorney for eBay argument that Carparts was a policy driven decision and not a statutory based decision could have been made even stronger by saying that Congress amended the ADA with the ADAAA and they did not take the opportunity at that time to make it clear that the Internet was a place of public accommodations when they made those amendments to the ADA.

6. If EBay and Netflix lose, expect an appeal to the United States Supreme Court where the concerns of the concurring opinion in Perez will be squarely presented. If eBay and Netflix win and Earll and Cullen appeal, Perez will be the key there as well. If Cullen and Earll lose, there will be a real thing to consider as to whether they should even apply for cert. to the Supreme Court as it is entirely possible that by appealing, the United States Supreme Court will be given the opportunity to turn administrative law upside down and that is a risk that the plaintiffs may not want to take with respect to what it might mean for future cases.

I
Introduction
Sometimes a case can have a huge impact on the ADA universe even though it is not an ADA case at all. Gross v. FBL Financial Services 557 U.S. 167 (2009) is one such case and today’s case is another. As is my usual practice, the blog entry has been divided into several categories: introduction; today’s case; the concurring opinions; the final rule from the Department of Transportation pertaining to transportation for individuals with disabilities…; The specific provisions of the final rule; highlights of the language of the final rule; why Perez matters; the appendix; and takeaways. The reader is free to concentrate on any or all of the categories.

II
Today’s Case

Today’s case, Perez v. Mortgage Bankers Association, a unanimous decision from the United States Supreme Court decided on March 9, 2015 is another such case. In this case, the Department of Labor’s wage and hour division issued letters stating that it was their opinion that mortgage loan officers do not qualify for the administrative exemption to overtime pay requirements under the fair labor standards act. In 2006, the wage and hour division completely reversed course. In 2010, they reversed again. MBA file suit alleging that under the jurisprudence of the United States Court of Appeals for the District of Columbia, when an agency does something like this, it must go through the Administrative Procedure Act’s notice and comment procedures.

The United States Supreme Court in a unanimous opinion, said the terms of the Administrative Procedure Act were very clear when it states that the notice and comment requirement does not apply to interpretive rules, general statement of policy, or rules of agency organization, procedure, or practice. Therefore, an agency was not required to go through the notice and comment procedures when it issues interpretive rules regardless of its interpretation in the past, and the line of cases from the US Court of Appeals of the District of Columbia saying otherwise was in error.

In reaching this conclusion, the majority opinion made a few additional critical points that are useful here. First, interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process. Second, prior case law from the United States Supreme Court merely meant that an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations and was not in support of the line of cases stating otherwise from the US Court of Appeals for the District of Columbia. Third, the Administrative Procedure Act does require an agency to provide more substantial justification when a new policy rests upon factual finding contradicting those underlying a prior policy or when a prior policy has led to serious reliance interests. To ignore both of those situations would be arbitrary and capricious.

III
The Concurring Opinions

That all may be true, but what is extremely significant about this case is the concurring opinions. The concurring opinions reveal that there are at least three justices of the United States Supreme Court that would go even further. To their view, it is simply not enough to say that interpretive rules do not have the effect of law because while they do not have the effect of law, there is a line of cases from the United States Supreme Court that requires deference to agency interpretations of regulations unless it is plainly erroneous or inconsistent with the regulation. The three justices (Scalia and Thomas explicitly and Alito signifying he is leaning that way), believe that doctrine should be overruled as well, which brings us to….

IV
The Final Rule from the Department Of Transportation Pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices

On March 13, 2015, the Department of Transportation issued a final rule pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices. The final rule requires public transportation entities to make reasonable modifications/accommodation to their policies, practices, and procedures in order to ensure program accessibility. The necessity for the rules was mandated by case law that was finding against the Department of Transportation by holding that transportation entities were not obligated to make such modifications under the ADA because the Department of Transportation had no regulations explicitly requiring transportation entities to make reasonable modifications.

V
The Specific Provisions of the Final Rule:

1. Recipients of federal financial assistance are required to provide reasonable accommodation to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless there exist a fundamental alteration to the nature of the service, program, or activity or there exist an undue financial and administrative burden.

What is interesting about this particular provision of the final rule is the requirement that a defense exist where there exist an undue financial AND administrative burden. When I first saw this, I said to myself this can’t be right and so I double checked it. It turns out that under the implementing regulations for title I of the ADA, it is clear that undue hardship, which is a title I term, can either be an undue hardship in the financial sense OR in the logistical sense. See 29 C.F.R. § 1630.2(p)(2). With respect to title III’s implementing regulations, it is clear that undue burden can be either financial or logistical. See 28 C.F.R. § 36.303(a). While I don’t have it handy at the moment, there is plenty of case law to support that undue hardship can either be financial or logistical and that undue burden under title II can either be financial or logistical. Nevertheless, the final regulations dealing with title II of the ADA, 28 C.F.R. § 35.150(a)(3) do refer to undue financial AND administrative burdens. It doesn’t seem that the Department of Transportation believes that both have to be satisfied because otherwise much of its appendix, more on that later, to this final rule would not make any sense.

2. Those providing public transportation, including fixed route, demand responsive, and complementary paratransit services must implement their own processes for making decisions on providing reasonable modification to their policies and practices. There is freedom on how to go about it but certain things have to happen. First, information about the process and how to use it must be readily available to the public, including persons with disabilities. Second, the process must allow for accessible means by which persons with disabilities can request reasonable modifications/accommodations. Third, the process must also provide for those situations where an advance request and determination is not feasible.

3. Requested modification can be denied in any of three different situations: a fundamental alteration of the provider’s services exist; providing the modification results in a direct threat to the health or safety of others; providing the accommodation is not necessary to permit the passenger to use the entity’s services for their intended purpose in a nondiscriminatory fashion (that is, while the modification might make things more convenient for the passenger, the passenger could nevertheless use the services in a nondiscriminatory manner without the modification).

4. All public and private entities providing these transportation services must have a complaint process in place. The Department of Transportation will look to take action where a complaint process is not in place, the complaint process is not being operated properly, the complaint process is not being operated in good faith, or a particular case raises a federal interest.

VI
Highlights of The Language of the Final Rule

5. With respect to an entity receiving federal financial assistance, what is really interesting is that the final rule itself uses a bit of different language. The final rule talks about reasonable accommodations and not reasonable modifications. Reasonable accommodations is a title I term, whereas reasonable modifications are the terms used in title II and title III. Nevertheless, the final rule specifically uses the term reasonable accommodations but then says that reasonable accommodations mean the same thing as reasonable modifications under title II of the ADA and not reasonable accommodations under title I of the ADA. I find this all strange. I do not know why the Department of Transportation does not stick with the term reasonable modifications instead of going through a complicated endeavor to use the term reasonable accommodations in the final rule.

6. Whether a public entity or a private entity, it must have at least one person designated to coordinate its efforts to comply with nondiscrimination on the part of persons with disabilities (recipients of federal financial assistance due to § 504 regulations should already have such a person).

7. The final rule specifically defines origin to destination service and mandates that where an ADA paratransit operator chooses curb to curb service as the primary means of providing service, assistance must be provided to passengers with disabilities beyond the curb unless such assistance results in a fundamental alteration or a direct threat.

8. Public and private entities must give priority to methods offering services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate to the needs of the person with a disability.

9. Public entities have until July 13, 2015 to get a complaint process in place.

10. In determining whether to grant a requested modification, public entities shall be guided by the provisions of appendix E, coming up next.

VII
Why Perez Matters

11. Perez matters because in the world of the ADA you have guidances and interpretive rules everywhere. The decision puts everyone on notice that the guidances and interpretive rules are at considerable risk of subsequent litigation. Further, calling a guidance something else, such as in this case attaching an appendix, is also at considerable risk.

VIII
The Appendix:

12. The provisions of the final rule clearly suggests that the appendix only applies to public entities (See new 49 C.F.R. 37.169(d)), yet the appendix itself doesn’t seem to make that distinction.

13. The appendix actually uses the term, “…explains the department’s interpretation of §§ 37.5(g) and 37.169 [and] is intended to be used as the official position of the department concerning the meaning and implementation of these provisions.”

Two points here. First, the rule as literally set up seems to suggest that private entities do not have to worry about the appendix. Second, it is clear that the appendix is the Department of Transportation’s interpretation of the final rule and as such may run into the problem of whether this interpretation will be granted deference per Scalia, Thomas, and presumably Alito, if their views prevail.

14. Things that the Department of Transportation will consider reasonable modifications:

A. A passenger’s request for a paratransit driver to walk over a pathway that has not been fully cleared of snow and ice where such request is to help the passenger with a disability navigate the pathway;

B. If snow or icy conditions at a bus stop make it difficult or impossible for a fixed route passenger with a disability to get to the lift or for the lift to deploy, moving the bus to a cleared area for boarding if moving the bus is available within reasonable proximity to the stop;

C. A paratransit rider’s request to be picked up at home but not at the front door of his or her home or to be dropped off at an entrance requested by a passenger to a frequently visited public place with multiple entrances so long as the requested pickup location did not pose a direct threat;

D. Picking up a paratransit passenger on private property in a gated community or parking lot, mobile home community, business or governmental facility where vehicle access requires it also pass through a security barrier so long as every reasonable effort to gain access to that area has been made;

E. Granting a passenger’s request for a driver to position the vehicle to avoid obstruction to the passenger’s ability to enter or leave the vehicle at a designated stop location, such as park cars, snowbanks, and construction so long as the vehicle avoiding the obstruction does not pose a direct threat;

F. Granting a passenger’s request for transit personnel to handle the fare when the passenger with a disability cannot pay the fare by the generally established means;

G. Granting a passenger with diabetes or another medical condition request to eat or drink aboard a vehicle or in a transit facility in order to avoid adverse health consequences;

H. Granting a passenger’s request to take medication while aboard a fixed route or paratransit vehicle or in a transit facility;

I. Granting a wheelchair user’s request aboard a fixed route or paratransit vehicle separately from his or her device when the occupied weight of the device exceed the design load of the vehicle lift;

J. A passenger’s request for the driver to open an exterior entry door to a building to provide boarding and/or alighting assistance to a passenger with a disability so long as such assistance does not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

K. A passenger requesting that a paratransit vehicle navigate to a pickup point where it is difficult to maneuver a vehicle so long as the passenger does not expose the vehicle to a hazard posing a direct threat.

L. A paratransit passenger’s request for a driver to help him or her navigate an incline with the passenger’s wheel device. Same goes for assistance in traversing a difficult sidewalk or getting around obstacles between the vehicle and a door to a passenger’s house or destination unless such assistance results in a direct threat or leaves the vehicle unattended or out of visual observation for a lengthy period of time.

M. A passenger’s request to be assisted from his or her door to a vehicle during extreme weather conditions so long as the driver leaving the vehicle to assist would not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

N. Where a passenger’s request for assistance means that the driver will need to leave passengers aboard a vehicle unattended or out of visual observation for a lengthy period of time, unless accommodating the request is a direct threat to the health or safety of the unattended passengers, which the Department of Transportation says “could involve direct threat,” in that situation.

The use of the term “could involve direct threat…,” Is extremely problematic in terms of what it might mean.

O. Accommodating a passenger with a disability on a return trip when they did not need that assistance on the initial trip;

P. A passenger’s request for a telephone call five minutes in advance or at time of vehicle arrival.

What is not a reasonable modification/accommodation:

1. Fixed route operators having to establish flag stop or route deviation policies;

2. Reaching into pockets or backpacks of the passenger with a disability in order to extract the fare;

3. A paratransit passenger’s request for special equipment so long as that requested equipment is not required by the ADA or Department of Transportation rules. Same goes for a dedicated vehicle or a specific type or appearance of vehicle;

4. A person’s request to have the transportation provider travel outside of its service area or to operate outside of its operating hours;

5. Providing a personal care attendant or a personal care attendant services to meet the needs of passengers with disabilities on paratransit or fixed route trips;

6. Providing the passenger with a disability free fixed route or paratransit driver services;

7. Being asked to follow a path to a pickup or drop-off point that exposes the vehicle and its occupant to hazards;

8. A passenger’s request for a specific driver;

9. A passenger’s request for a fixed route or paratransit driver to assist with luggage or packages where it is not the normal policy or practice of the transportation agency to do that;

10. A paratransit passenger’s request not to ride with certain riders.

11. Unless an emergency exists, a passenger’s request for a driver to lift the passenger out of his or her mobility device.

Optional

1. Granting a paratransit passenger’s request for a driver to make an intermediate stop where the driver would be required to wait is something the paratransit operator can or cannot do at their option.

Wild West

1. A paratransit or fixed route passenger’s request that the driver take charge of the service animal may be denied. Caring for a service animal is the responsibility of the passenger or a personal care assistant.

True enough. But what does caring for the animal mean. See this blog entry of mine.

IX
Takeaways:

1. Guidances and interpretive rules when it comes to the world of the ADA are absolutely everywhere. Perez is putting everyone on notice that the ability of agencies to issue the guidances and interpretive rules is unfettered, but the days of such interpretive guidances and rules being given a great deal of discretion by the court may be coming to an end. Thus, agencies may have won the battle in Perez, but may be on the verge of losing the war.

2. These Department of Transportation regulations may be the perfect case for the Supreme Court to evaluate whether interpretive rules and guidances must be given deference by the courts. Apendix E is clearly an interpretive rule regardless of what you might call it, and the very nature of the rule takes away the individual case by case analysis that the ADA requires.

3. Apendix E on its face only applies to public entities. Therefore, if you are a private entity, a plausible argument can certainly be made that appendix E is not applicable. Also, nothing in the final regulation seems to suggest that appendix E would apply to a private entity accepting federal funds either.

4. Despite what the title II regulations say, I am not aware of any case law that says for something to be an undue burden it has to be both financial and administrative.

5. As I have mentioned before, with rare exceptions, I don’t like guidances and interpretive rules for many reasons. First, the guidances and interpretive rules avoid the notice and commenting process of the Administrative Procedure Act. Second, such guidances and rules can create their own problems (example-what does caring for an animal mean? What does it mean to say that an intermediate stop is optional but could rise to a fundamental alteration?). Finally, the guidances and rules are used as a crutch by attorneys so that attorneys don’t have to go through the individual analysis to figure out whether an undue burden/hardship or fundamental alteration exists. It won’t surprise me in the least if appendix E is used as a vehicle to test whether the doctrine of giving deference to interpretive rules and guidances is still good law.

I
Introduction

Let’s say that you have a client that is an independent contractor. The following day after disclosing that he or she has a disability, the independent contractor relationship is terminated. Where does this person turn for a remedy?

The first possibility is to show that the client was not an independent contractor at all. That is, despite the label in the contract, the hiring authority exercises sufficient control over the independent contractor so that the client was in fact an employee. For this possibility to fly, you want to take a look at two different authorities. First, Revenue Ruling 87-41, which has a 20 part test for determining whether sufficient control is being exercised. Keep in mind, that none of those factors are dispositive in and of themselves. Rather, you have to look at the whole situation after applying all 20 factors. By googling Revenue Ruling 87-41, you can find all kinds of references to that law, including this one, though not necessarily the actual document unless you have a legal database or you want to write to the IRS. The second authority that you want to look at is Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), where the United States Supreme Court evaluated whether a physician shareholder was an employee so as to be able to pursue a claim of disability discrimination under title I of the ADA.

Okay, so now you have tried that approach and you realize that your client is truly an independent contractor. Is your client out of luck? Where do you turn? There are two places you might turn to. First, if privileges or benefits are involved, you might try pursuing a claim under title III of the ADA, though you would only get injunctive relief and attorneys fees if you do so. A physician at a hospital who did precisely that can be found in this case, Mentkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998). The other thing you could do is try suing under the Rehabilitation Act, which brings us to the case of the week. As usual, I have divided the blog entry into various categories: introduction; facts; issue; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the sections.

II
Facts
Our case of the week is Flynn v. Distinctive Home Care, Inc., 2015 U.S. Dist. LEXIS 26869 (W.D. Tex. March 5, 2015). In this case, a pediatrician was diagnosed with autism spectrum disorder, used to be called Aspergers syndrome. Shortly after disclosing her condition to the defendants, her independent contractor agreement was terminated. She opted to bring suit under the Rehabilitation Act.

III
Issue

In order for a person to bring in employment claim so to speak under the Rehabilitation Act, must that person be an employee?

IV
Court’s Reasoning

The court says yes relying on an unpublished decision from the Fifth Circuit. Nevertheless, the court does go into detail as to how the arguments can go either way and the Circuits are split. It all comes down to whether the Rehabilitation Act adopts title I of the ADA wholesale or whether it only selectively incorporates title I of the ADA.

1. The Sixth and Eighth Circuits have decided that the Rehabilitation Act adopts title I of the ADA in full. The Eighth Circuit noted that they were construing both laws to apply to the employer employee relationship because of the similarity between title I and the Rehabilitation Act in the absence of authority to the contrary. The Sixth Circuit found that the the ADA, ADEA, and Rehabilitation Act all borrow the definition of employer from title VII of the Civil Rights Act. Therefore, an individual not meeting the title VII statutory definition of employer could not be held liable under the Rehabilitation Act.

2. On the other hand, the Flynn court notes that the 9th and 10th circuit have concluded the title I of the ADA is only selectively incorporated into the Rehabilitation Act. The 10th circuit specifically noted that the language of the 1992 amendment to the Rehabilitation Act states that the ADA’s standards are to be used only to determine whether the Rehabilitation Act has been violated. That is not the same thing as saying that the standards of the ADA are used to determine whether an employer is even subject to the Rehabilitation Act in the first place. That is, the reference to the ADA’s employment provisions in the Rehabilitation Act addresses only the substantive standards for determining what conduct violates the Rehabilitation Act and does not go to the definition of who is covered under Rehabilitation Act.

3. In deciding that title I of the ADA was only selectively incorporated into the Rehabilitation Act, the Flynn court noted that the Ninth Circuit reached that conclusion for four different reasons. First, the scope of the Rehabilitation Act is broader than the ADA. Second, Congress did not use language of incorporation when it referred to the ADA and § 504. Third, to decide otherwise would substantially narrow the scope of the Rehabilitation Act. Fourth, complete incorporation of title I of the ADA into the Rehabilitation Act results in substantial duplication between the two laws, perhaps inconsistent duplication, in the definitions of key terms (as we have seen over the course of the discussions had in this blog, the differences between the two laws can be very subtle but at the same time significant).

4. The Flynn court says that since the Fifth Circuit in an unpublished decision had said that employment discrimination claims under the Rehabilitation Act require the existence of an employer employee relationship, they were bound to follow that decision.

V
Takeaways:

1. Since the Fifth Circuit decision on this issue is unpublished, it wouldn’t surprise me in the least to see this case appealed to the Fifth Circuit. It is anybody’s guess as to how the Fifth Circuit would rule in this case. That said, to my mind, the reasoning noted by this court of the 9th and 10th circuit is fairly compelling.

2. Before opting for the possibilities afforded by paragraph 3 below, always figure out first whether the person is truly an independent contractor. For that, as mentioned above, you definitely want to review Revenue Ruling 87-41 and also review Clackamas as well.

3. If you’re on the plaintiff’s side, it would make sense in these kind of situations to sue under both title III of the ADA and the Rehabilitation Act. Expect a vigorous defense to the title III suit on the grounds that title III was not meant to apply to employment situations. With respect to Rehabilitation Act claim, expect the same defenses made in this case. Of course, suing under title III of the ADA only allows for injunctive relief and attorneys fees. With respect to recovering under the Rehabilitation Act, the plaintiff will have two obstacles. First, they will have to show that the discrimination was the sole cause. Second, to get damages, they will have to show deliberate indifference. Nevertheless, a true independent contractor doesn’t have a lot of options available to him or her.

4. Since there is a Circuit split on whether coverage under the Rehabilitation Act demands an employer employee relationship, it is reasonable to expect that this will go to the United States Supreme Court someday.

Previously, I have written on whether you can get compensatory and punitive damages in ADA retaliation claims. That particular blog entry despite its title was restricted to title I claims of the ADA. That is, claims arising from employment. But what about title II claims of the ADA. That is, a retaliation claim arising from a situation where a governmental entity retaliates against someone who is advocating for the governmental entity to do the right thing so to speak for a person with a disability. As we are about to find out, you wind up with a different answer with respect to whether compensatory damages are available for retaliation claims based on title II of the ADA , though, for different reasons, you do wind up with the same answer that punitive damages are not available for retaliation claims based on title II of the ADA. As is typical with my blog entries, this particular blog entry is divided into three sections: facts, court’s reasoning, and takeaways. The reader is free to concentrate on any or all of the sections, though considering that this blog entry is on the short side for my blog entries, you will probably wind up reading all of it:-)

I
Facts

You might ask how might you see a retaliation claim in the context of title II. Lee v. Natomas Unified School District, 2015 U.S. Dist. LEXIS 24253 (E.D. Cal. February 27, 2015), is such a case. In that case, the plaintiff had a child that was found through a psycho-educational assessment to have a disability falling along the autism spectrum. The plaintiff was not at all happy with that determination. After that, the plaintiff became quite aggressive with trying to get the school district to change the classification. The school district took umbrage at the plaintiff’s efforts, including ultimately seeking a series of injunctions that would have effectively barred him from the school’s campus. The plaintiff files a retaliation claim alleging violations of § 504 the Rehabilitation Act and title II of the ADA.

II
Court’s Reasoning

There is a section of the opinion talking about how do you make a prima facie case out with respect to retaliation claims, and I commend that to your reading. However, for our purposes I want to focus on the damages section of the case. With respect to the damages section of the case, in finding that compensatory damages but not punitive damages are allowed for retaliation claims under title II of the ADA, the court reasoned as follows:

1. Since remedies for violations of title II of the ADA and § 504 of the Rehabilitation Act are coextensive with each other and link to title VI of the Civil Rights Act of 1964, the ADA and the Rehabilitation Act remedies must be construed in the same manner applicable to remedies under title VI of the Civil Rights Act.

2. The ADA does have a retaliation provision. With respect to title II of the ADA, the remedies for retaliation link back to 42 U.S.C. § 12133. The remedies available under that section are coextensive with the remedies available in a private cause of action brought under title VI of the Civil Rights Act of 1964, which includes monetary damages.

3. Barnes v. Gorman, 536 U.S. 181 (2002), holds that when it comes to a private cause of action brought under title II of the ADA and § 504 of the Rehabilitation Act, only compensatory damages are allowed and not punitives because the remedies involving title VI of the Civil Rights Act are inherently contractual in nature and punitive damages are not allowed for breach of contract.

III
Takeaways:

1. This case illustrates that there is a very important difference with respect to damages for retaliation claims depending upon the title of the ADA that is involved. As mentioned previously in the blog entry discussing compensatory and punitive damages with respect to a title I claims, title I retaliation claims relate back to 42 U.S.C. § 12117. If you play the string out in terms of where it leads, you wind up with the argument that compensatory and punitive damages are not available for retaliation claims under title I. As also mentioned in that blog entry, a contrary argument can be constructed. However, with title II retaliation claims, 42 U.S.C. §12203(c) specifically relates back to 42 U.S.C. § 12133, which if you follow that string out, takes you into title VI of the Civil Rights Act, which does allow, per case law, for compensatory damages.

2. Punitive damages are out for title II retaliation claims per Barnes v. Gorman, mentioned above.

Back from vacation and so it is time to get another blog entry up.

I have written about service dogs before (they are in reverse chronological order here, here, and here).

When it comes to service dogs, there may be a lot more to think about than what first appears. the case of Alboniga v. School Board of Broward County Florida from the Southern District of Florida is such a case. As is my usual practice, I have divided the entry into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader, as always, is free to focus on any or all of the categories.

I
Facts

The child in this case is a six-year-old child with multiple disabilities who has cerebral palsy, spastic quadreparesis, a seizure disorder, is nonverbal, and is confined to a wheelchair. He needs care and support for all aspects of daily living and education. He attends public schools and has an IEP. Plaintiff then gets a trained service dog that meets all applicable standards for the purpose of meeting the child needs with respect to his seizures. The service dog performs very specific functions with respect to helping the child deal with his seizures. The service dog also has a special vest carrying pertinent medical supplies and information important for the care of the child in the event of an emergency. When the plaintiff asked the school board for the ability to have her child be accompanied to school with a service dog, the school requested information regarding liability insurance for the service animal and information about vaccinations of the service dog neither of which the plaintiff furnished. The vaccinations required by the school board mirrored those applicable to dog breeders with respect to ensuring the health of a dog before its sale but exceeded those related to the regulation of animals permitted in schools under Florida statute. Subsequently, the school board sent a letter requesting the additional vaccination information as well as proof of liability insurance in an amount to be determined by the school board’s risk management office. It then also required that the plaintiff provide a handler for the dog. The plaintiff did serve as the handler for the dog for four months and was not paid for doing so nor did she assist school staff with any activities regarding the child in the classroom. At the end of those four months, the school board provided a handler for the service dog. The responsibilities of the handler were to walk the dog with the leash instead of allowing the dog to be attached to the child’s wheelchair, take the dog outside of the school premises to urinate, and to ensure that other people do not approach pet or play with the dog while he is working as a service dog. The handler did not have any duties regarding the child’s education or care. At all times while at home and in other public places, the dog is tethered to the child. Finally, the plaintiff submitted declarations, which were not disputed by the defendant, that the dog and the child form a service dog team. Therefore, separation of the service animal from the target member of the team is detrimental and diminishes the animal’s responsiveness and effectiveness. Neither the child’s healthcare plan, his IEP, or his section 504 plan mentioned anything about service dogs. The plaintiff brought suit to allow the service dog in the school: without having to pay for additional liability insurance and additional vaccinations; without having to provide an additional handler; and to accommodate the child by walking his service dog when necessary.

II
Issues

1. Was it necessary for the plaintiff to exhaust the IDEA process first prior to bringing suit alleging violations of the ADA and § 504 of the Rehabilitation Act?

2. Since the school board has always allowed the child to attend school with the service animal, is the case moot?

3. Are the relevant implementing regulations pertaining to service dogs permissible and entitled to deference?

4. Are the insurance and vaccination requirements a surcharge in violation of the ADA?

5. Must the child have a handler excluding the child himself in order to be consistent with the Department of Justice regulations?

6. Was what the school’s handler was doing care and supervision under the Department of Justice regulations, which require that care and supervision be done by the person using the service dog?

III
Holdings:

1. No

2. No

3. Yes

4. Yes

5. No

6. No

IV
Court’s Reasoning:

1. With respect to service dogs, I have previously written on whether exhaustion of IDEA is required before bringing suit with respect to allowing a service dog in the schools. As I mentioned there, there are two views on this. That is, one view says the parent does not have to exhaust remedies, while the other view says that they do. Judging from my research on Westlaw, the minority view is represented by Sullivan by and through Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). In that case, the Eastern District of California held that whether the child could have a service dog with him or her in the school had nothing to do with the child’s IEP since the child was happy with that plan. Rather, this was a substantive question arising under § 504 of the Rehabilitation Act. In fact, IDEA doesn’t have anything to do with whether a court could mandate a service dog on a school district regardless of whether that service dog was educationally necessary. The majority view, represented by Cave v. East Meadow Union Free School District , 514 F.3d 240 (2d Cir. 2008), is that if the child has an IEP, then the remedy clause mentioned above applies if the situation is related to or has an impact on the IEP. The fact that relief may be sought that is different than what can be obtained under IDEA is of no matter.

The Southern District of Florida in this case opts for Sullivan and indeed cites to that decision. In particular, the court notes that the plaintiff is not claiming a denial of a free appropriate public education and that IDEA and its administrative scheme are simply not implicated by the kind of claims made in this case.

2. The court found that the case was not moot because when a party abandons a challenged practice freely, the case only becomes moot only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. That in turn depends upon the analysis of three different factors: whether the termination of the offending conduct was unambiguous; whether the change in government policy or conduct appears to be the result of substantial deliberation, or simply an attempt to manipulate jurisdiction; and whether the government has consistently applied a new policy or adhered to a new course of conduct. Applying those factors, the court found that the elements of the case being moot were not satisfied because a change in government conduct by administrative fiat in violation of its own rules cannot constitute unambiguous or consistent termination of the claimed improper conduct. Further, it wasn’t clear that the conduct wouldn’t start all over again once the threat of the lawsuit was removed.

3. The regulations were a permissible construction of the statute and entitled to deference under Chevron because:

A. The regulations were reasonable in light of the language, policies, and legislative history of the statute;

B. The regulation, which honored the choice of an individual with a disability to be accompanied by a service animal in all aspects of community life-including schools- promotes the ADA’s ultimate aim of ensuring equal opportunity for, and full participation by, individuals with disabilities in all aspects of civil life. In particular, the regulations carry out congressional direction that the ADA goes beyond prohibiting outright discrimination to require modification to existing facilities and practices in order to accommodate individuals with disabilities;

C. The legislative history of the ADA confirmed that DOJ regulations are consistent with congressional intent;

D. Over the years, there has been extensive judicial support, both before and after the DOJ added specific service animal provisions to title II regulations, for the principle that the ADA generally requires public entities to permit individuals with disabilities to be accompanied by their service animals;

E. The DOJ regulations also contain exceptions so as to not make mandatory the inclusion of service animals in all circumstances. That is, the DOJ regulations set forth certain circumstances where it is not reasonable to allow the service animal. The fact that such exceptions exist is another indicator that the regulations are reasonable.

4. The school board’s requirement that plaintiff maintain liability insurance for the service animal and procure vaccinations above and beyond the requirements under Florida law, are surcharges because the policy in effect amounts to an extra upfront charge to the plaintiff in order for the child to use his service dog. Further, the insurance costs are in excess of what other students are required to spend in order to attend school. Finally, the vaccinations, as mentioned above, exceed what is ordinarily required under Florida law regarding the regulations of animals permitted in schools.

5. The court had several reasons for holding that the child did not need to have a handler (excluding the child himself), in order to be consistent with the Department of Justice regulations:

A. Permitting a person with a disability to use a service animal is generally reasonable;

B. A public entity is not permitted to survey the universe of reasonable modification to determine what is in the best interest of the person with a disability since it is persons with disabilities that typically have the most accurate knowledge about the functional limitations imposed by the disability and the individual is not obligated to accept an alternative accommodation suggested by the provider if he or she believes it will not meet his or her needs and the preferred accommodation is reasonable;

E. A public entity cannot dictate the type of services a person with a disability needs in contravention of that person’s own decisions regarding his own life and care;

F. It was not disputed that separating the child from the service animal during the school day has a detrimental effect on the child-service animal bond and diminishes the animal’s responsiveness and effectiveness outside of the school setting;

G. It is not a reasonable accommodation for the public entity to act as the handler for the service animal. However, if one looks at the handler regulation as a whole, it is clear that tethering a service animal to a wheelchair of a person with a disability constitutes control over the animal by the person with a disability and therefore, that person with a disability is acting as the service animal’s handler. Accordingly, the child is the handler for purposes of the DOJ regulations, and therefore, it is perfectly reasonable to allow the service animal to be tethered to the child.

6. The school was not being asked to engage in care or supervision of the service animal since under the DOJ guidance to the revised ADA regulations, care and supervision means routine animal care such as feeding, watering, water washing the animal. Case law is similar. For example, the court cited to a Montana case where the Montana Supreme Court said that caring for a service animal means looking after the service animal in the owner’s absence, which is not the case here. Finally, the court makes a very important distinction that the school board is not being asked to accommodate or care for the dog, rather the school board is being asked to help the child as a reasonable accommodation to provide an employee to walk the dog when necessary so that the dog could relieve himself. In that way, it is no different than a school assisting a diabetic child with her insulin pump,
assisting a child with disabilities in employing her motorized wheelchair, or assisting a child with vision impairments to help her deploy her white cane, or assisting that same child with her seeing-eye dog.

V
Takeaways

1. I look for this case to be appealed to the 11th Circuit if for no other reason because there is a split of authority on just when IDEA remedies need to be exhausted when it comes to the issue of a service animal accompanying a child into the schools. I do find it interesting that the court does not mention the majority view on this subject in its opinion. The case law surrounding exhaustion of IDEA remedies creates an interesting situation. That is, generally the rule of thumb is for an IEP to be comprehensive and include everything that is possible to include in it. However, in light of the case law, if you’re on the plaintiff’s side and faced with a service dog issue, it may make a great deal of sense to demand the service dog a company the child to school but also fight against the service dog being included in the IEP so as to maximize your remedies later. On the defense side, it may make sense to encourage the inclusion of the service dog in the IEP. If the person does not have an IEP but does have a § 504 plan, it probably doesn’t matter if the § 504 plan contains a reference to the service dog or not.

2. Just because you allow the plaintiff to get some of what they want that does not make the case moot necessarily, especially if the plaintiff is only getting some of what they want. On the defense side, you would want to make sure that the entire system moves in the direction it needs to move in and for the right reason. On the plaintiff side, you want to keep a lookout to see if a person is going at it alone or if the conduct is otherwise violating school policy, even if that policy itself is discriminatory.

3. Considering what we have discussed before regarding whether the service dog regulations would withstand a challenge, it isn’t surprising that the DOJ regulations were found by the court to be permissible and entitled to Chevron deference.

4. Be sure to remember that when it comes to the ADA, regardless of title, surcharges are not appropriate.

5. The term handler is being construed by this court in a way that maximizes the independence of a person with a disability, which is the goal of the ADA in the first place.

6. The court makes a very important distinction between accommodating the service animal v. accommodating the child himself. That is, since the child and the service animal are a team, it is the principal of that team that the accommodation relates back to. Further, care and supervision is being interpreted in a broad sense.

First, a housekeeping matter. I will be away next week, and so the next blog you will see after this week, unless I somehow blog later in the week, will be two weeks from today. Recently, the constitutionality of the transvestism exclusion in the ADA has been in the news.

True or False:

1. If a person has a disability and is a transvestite, transgender, or a person with a gender disorder not resulting from physical impairments, the ADA can’t be used regardless of what the disability is.

2. Proving that the transvestism, transsexualism, gender identity disorder, etc. exclusion is unconstitutional will be extraordinarily difficult if not virtually impossible.

Answers: The answers are my own opinion based on the law as it stands currently and no personal opinion is meant.

1. False

2. True

Reason for Answers:

1. 42 U.S.C. § 12211(b) specifically has an exclusion in it for protection under the ADA. More specifically, it excludes from protection under the ADA, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse use disorders resulting from current illegal use of drugs. 29 C.F.R. 1630.3(d) is identical. 42 U.S.C. § 12211(a) and 29 C.F.R. 1630.3(e) also state that homosexuality and bisexuality are not disabilities as they are not impairments. This is not the same thing as saying that a person who has one of these conditions but also has another condition that would be considered a disability under the ADA as amended, would not be protected by the ADA because of their status in one of these categories. The statute clearly refers to these particular conditions as not being disabilities; it isn’t talking about removing people from coverage based upon their status regardless of the disabilities.

2. Presumably, the challenge to the exclusion is on equal protection grounds. That means first determining what equal protection class a person falls into. In this particular situation, it is hard to believe that the list of conditions mentioned in paragraph 1 above would fall into any class other than the lowest equal protection class, rational basis. This is especially so since persons with disabilities who are covered by the statute are with respect to employment, in the rational basis class, and with respect to things outside of employment, it is a case-by-case situation. Assuming that the conditions in paragraph 1 above would fall into the rational basis class, then Congress would only need a rational basis for coming up with the exclusions that it did. That is a very low standard to meet. Accordingly, getting a judge to find a constitutional violation for the exclusions of these conditions from the ADA will probably be extraordinarily difficult.

Again, none of this represents a personal opinion of mine. Rather, I am just analyzing the law as it currently exists. Also, we don’t know the actual facts of this particular case nor do we know how things will shake out during discovery. For example, perhaps status-based discrimination is going on. That is, maybe the employer is saying that it doesn’t matter what the person’s disability is, they do not have to do anything because the plaintiff falls into one of these categories. If that is what is going on, the above analysis might go differently.

When it comes to drugs and alcohol, those addicted to drugs and alcohol are not treated the same way as persons with other disabilities. For example, an employer has the right to evaluate an alcoholic employee or an employee addicted to drugs as if the disability didn’t exist. 42 U.S.C. § 12114(c)(4); EEOC interpretive guidance on 29 C.F.R. § 1630.16(b). Also, under 42 U.S.C. § 12114(a) a person currently using illegal drugs or alcohol is not protected. Finally, a person who is in a rehabilitation program or has completed a rehabilitation program and is no longer engaging in the use of alcohol or drugs can be protected under the ADA. 42 U.S.C. § 12114(b)(1),(2). In short, a person using drugs or alcohol is not protected, but a person with a record of using drugs or alcohol can be. Case law often refers to this as a safe harbor. Case law may also refer to it as a person not being qualified since that is the statutory language.

The 11th circuit just came down with a decision, Jarvela v. Crete Carrier Corporation (published). As is typical for my blog entries, I have divided this entry into several categories: facts; issue; court’s reasoning; takeaways; current user; from what time is current user measured by; and how to make sense of it all. The reader is free to focus on any or all of the sections.

I
Facts:

The facts are really straightforward. The plaintiff was terminated by the employer because the week prior to the termination, a substance abuse center, for which the plaintiff had taken FMLA leave, had discharged the plaintiff with a diagnosis of alcohol dependence. The plaintiff was a commercial truck driver, and Department of Transportation regulations specifically say that a person must not have a current clinical diagnosis of alcoholism in order to be able to be a commercial truck driver.

II
Issue

Was the plaintiff a qualified person with a disability?

III
Court’s Reasoning

1. The plaintiff’s written job description for a commercial motor vehicle driver provided that the driver has to qualify as an over the road driver under U.S. Department of Transportation regulations.

2. The Department of Transportation regulations require that a commercial truck driver not have a current clinical diagnosis of alcoholism.

3. The ADA has a provision in it that allows for Department of Transportation regulations to act as a trump card if the employer is engaged in the transportation industry. 42 U.S.C. § 12114(c)(5)(C).

4. A person cannot reasonably contend that a seven day old diagnosis of alcoholism was not current at the time of his termination, and the court went on to specifically say that a seven day old diagnosis is current under the applicable Department of Transportation statute and regulations.

5. The court does say that they are not prepared to draw a bright line as to how much time can pass before diagnosis of alcoholism is no longer current. They also say that they are not rendering an opinion as to the meaning of current in any other statutory or regulatory context dealing with employer-employee relations.

IV
Takeaways:

1. I found this case strange. Basically, it says that if an employer is in a transportation industry, then a person who is terminated seven days after completing a rehabilitation program is a current user under applicable Department of Transportation statutes and regulations and therefore, is not a qualified person with a disability protected by the ADA. As such, this is a narrow holding.

2. Under the ADA, a person in a rehabilitation program for drug or alcohol addiction can be a qualified person with a disability for purposes of the ADA. Same for a person that has successfully been rehabilitated either in a program or otherwise who is no longer currently engaging in such use.

3. But what if the employer is not engaged in the transportation industry and so you do not have the same statute and regulations involved. What do you do then? The current user safe harbor of the ADA remains. What guidance can you look to with respect to whether a person is a current user? Also, from what point in time do you measure whether the person is a current user of alcohol or drugs? Neither of these questions are answered by this case, which is a reason I am a bit surprised that the case was published, but it can be hard to figure out as to why a decision is published or not. For the answer to these questions, go to the next section.

V
Current User

There is case law out there talking about what “current user,” might mean for purposes of the ADA safe harbor. Depending upon the Circuit, you see various formulations:

1. Periodic or ongoing activity in which a person engages, even if doing something else at that precise moment, which is not yet permanently ended. Therefore, current drug use refers to the illegal use of drugs occurring recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem (Shafer v. Preston Memorial Hospital Corporation, 107 F.3d 274 (4th Cir. 1997) abrogated on other grounds by Baird ex rel Baird v. Rose, 192 F.3d 462 (4th Cir. 1999);

2. A significant length of time needs to transpire (Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001);

3. Looking at whether the circumstances of the plaintiff’s drug use AND recovery justify a reasonable belief that drug use is no longer a problem (Mauerhan v. Wagner Corporation, at 649 F.3d 1180 (10th Cir. 2011). It seems to me that a requirement concerning recovery is problematic as it runs the risk of allowing stereotypes about the potential for recovery to influence the termination decision and a person who is perceived as being an alcoholic or a drug addict is protected by the ADA (Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997).

4. The Third Circuit manages to agree with the Ninth, Fourth, Sixth, and Second Circuits all at the same time (New Direction Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir. 2007).

5. All of the Circuits mentioned in 1-4 of this section basically take their guidance from a Second Circuit court case, Teahan v. Metro-North Commuter Railroad Company, 951 F.2d 511 (2d Cir. 1991). The standard the Second Circuit used was whether the employee’s substance abuse problem was severe and recent enough so that the employer was justified in believing that the employee was unable to perform the essential duties of the job. That question in turn depends on the answer to several factors, such as the level of responsibility entrusted to the employee, the employer’s applicable job and performance requirements, the level of confidence ordinarily required to adequately perform the task in question, and the employee’s past performance record. In other words, in the Second Circuit, you have a two-step process. First, figuring out whether the plaintiff was a current user. Second, if the plaintiff is a current user, then figuring out whether the plaintiff was a qualified person with a disability.

VI
From What Time Is Current User Measured by?

The Teahan case says that whether a person is a current user is measured by the actual date of firing rather than the date the employer is notified of the employee being a current user. That is a standard that the other circuits have followed except for the Fifth Circuit, which believes that the notification date is the critical inquiry (Zenor v. El Paso Health Care System Limited, 176 F.3d 847 (5th Cir. 1999).

VII

How to make sense of it all

1. If you are an employer and an employee is a current user of drugs or alcohol, you, of course, want to look at your company’s policies. Then, you want to consider what industry are you in. Are there statutes and regulations, such as the Department of Transportation, that govern the situation? If not, when were you, as the employer, notified of the current use? Is the person a current user? Is the person a qualified person with a disability?

2. How do you figure out the answers to the questions in 1 of this section is very much going to depend upon the Circuit you are in. As mentioned in this blog entry, the cases are a bit all over the place. I know lawyers say it all the time that a lawyer skilled in the field should be consulted and it is kind of a stock in trade. However, this area is particularly unsettled and so consulting competent and skilled legal counsel in this area will likely prove helpful.

3. Work with your legal counsel to determine the proper time frame for deciding whether a person is a current user. Notification? Or termination? If your Circuit has not decided that question, be aware that arguments exist both ways. With respect to it being the termination, the arguments would be: such a rule is consistent with the legislative purpose of ensuring that individuals going through rehabilitation are not discriminated against on the basis of past substance abuse; ensures that the integration of people with disabilities into the workforce was not overly burdensome for the employer; and any burden on the employer is not outweighed by the ADA and the Rehabilitation Act purposes to afford substance abusers the opportunity to overcome the disability and become fully integrated into the workforce as soon as possible (Teahan). On the other hand, going the notification route provides a fair remedy to both the employer and the employee without penalizing the employer who allows an employee to take a medical leave of absence rather than terminate him or her right away (Zenor), which is exactly what happened in Jarvela.

4. Finally, since the cases are a bit all over the place, eventually expect the United States Supreme Court to step in and figure this out.

My last weekend was absolutely crazy. Then, client matters kind of took over. Therefore, I am later than usual in getting my blog up for the week. Glad to say, here it is.

In a recent post, I discussed the survivability of ADA claims. It all seemed pretty cut and dry. That is, look to the most applicable state law and figure things out. However, I just came across a case from the Eastern District of Virginia decided on January 27, 2015, Flaum v. Gloucester Lanes, 2015 U.S. Dist. LEXIS 9182 (E.D. Va. January 27, 2015) that says there may be another way to look at it. Same kind of facts as the other one. That is, a person died during the pendency of an ADA claim. The issue here was whether attorneys fees survived. The court said that whether an ADA claim survives is not a matter of state law at all. Rather, relying on this case from the District Court of Minnesota (Kettner v. Compass Group USA, Inc., 570 F. Supp. 2d 1121 (D. Minn. 2008), said that whether an ADA claim survives is a question of federal common law. They cited extensively from Kettner, which said that cases relying on 42 U.S.C. § 1988(a) were mistaken because neither the Americans with Disabilities Act nor the Rehabilitation Act were referenced in that statute. Further, they agreed with the Kettner court that courts saying otherwise were not supporting their conclusions with any persuasive analysis or in fact any analysis at all of the statutory language.

So, that led me to read the Kettner decision. As mentioned above, the District Court of Minnesota in Kettner held that whether an ADA claim survives was a question of federal common law and they had two main reasons for that conclusion. First, Congress had numerous opportunities to expand the scope of § 1988(a) to the ADA and the Rehabilitation Act but declined to do so even though they did extend it to several other Acts. Second, as noted above, the courts taking the state law approach not only did not engage in any persuasive analysis, or for that matter any analysis at all of the statutory language, rather they simply seemed to ignore the actual language of § 1988(a) on the principle that the section applied broadly to any claims sounding in civil rights. That approach was simply not supported by analysis of the statute.

Since it is a matter of federal common law as to whether an ADA claim survives under these two cases, the question then becomes what is the federal common law. Kettner tells us that under federal common law, only actions for penalties or forfeitures do not survive. Since the ADA is a remedial statute, all causes of actions under the ADA will survive under federal common law except for liquidated or punitive damages.

What does this all mean? Well, it means that if you are faced with the question of whether an ADA or Rehabilitation Act claim survives, the first thing you want to do is check your jurisdiction to see how it handles this particular matter. If it goes the state law approach, and that does not benefit your client, feel free to argue under Flaum (I’m not sure if that decision will be published), and under Kettner (which was published), that decisions referencing back to state law are simply wrong and federal common law should prevail.