1 ROBERT J. MATHER 2 U.S. Department of Justice Civil Rights Division 3 Disability Rights Section P.O. Box 66738 4 Washington, D.C. 20035-6738 Telephone: (202) 307-2236 5 RONALD R. GALLEGOS Arizona Bar No. 013227 6 Assistant United States Attorney 230 N. First Ave., Room 4000 7 Phoenix, Arizona 85025-0085 Telephone: (602) 514-7661 8 Attorneys for the United States 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 13 ) 14 BONNIE P. TUCKER, an individual ) NO. CIV 95-2742-PHX-RGS 15 Plaintiff, ) 16 ) UNITED STATES' 17 v. ) MOTION 18 CITY OF PHOENIX, a municipality, ) FOR LEAVE TO PARTICIPATE and LYLE RODABAUGH, in his ) AS AMICUS CURIAE 19 individual capacity as Commander ) of the Phoenix Police Department ) 20 Communications Bureau, and JANE ) DOE RODABAUGH, husband and wife, ) 21 ) Defendants. ) 24 PLEASE TAKE NOTICE that the United States of America hereby 25 moves the Court for leave to participate as amicus curiae in this 26 case. The government believes that its interests may be affected 27 by the outcome of the case and, further, that the government's 1 views will be of assistance to the Court and the parties in 2 addressing the issues raised in the litigation. 3 I. The District Court Has Discretion To Allow Non-Parties 4 to Participate as Amicus Curiae 5 The authority to allow non-parties to participate as amicus 6 curiae in the trial court is well established. "Generally, 7 courts have exercised great liberality in permitting an amicus 8 curiae to file a brief in a pending case, and with further 9 permission of the court, to argue the case and introduce 10 evidence." In re Roxford Foods Litigation, 790 F. Supp. 987, 997 11 (E.D. Cal. 1991), quoting from U.S. v. Louisiana, 751 F. Supp. 12 608, 620 (E.D. La. 1990). The United States seeks to play in 13 this case what the Ninth Circuit has described as "the classic 14 role of amicus curiae" -- "assisting in a case of general public 15 importance, supplementing the efforts of counsel, and drawing the 16 court's attention to law that might otherwise escape 17 consideration." Funbus Systems, Inc. v. State of Cal. Public 18 Utilities Com'n, 801 F.2d 1120, 1125 (9th Cir. 1986), citing 19 Miller-Wohl Co. v. Commissioner of Labor & Industry, 694 F.2d 20 203, 204 (9th Cir. 1982). The decision whether to grant amicus 21 status is one that rests firmly within the discretion of the 22 district court. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 23 1982). 24 25 26 27 28 2 1 II. The Department of Justice has Significant Enforcement 2 Responsibilities under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 3 The Department of Justice has important regulatory and 4 litigation responsibilities under the Americans with Disabilities 5 Act of 1990 ("ADA"), 42 U.S.C. SS 12101 et seq. Pursuant to 6 statutory directive, 42 U.S.C. S 12134(a), the Attorney General 7 has promulgated a regulation implementing title II of the ADA, 28 8 C.F.R. pt. 35.1 Under title II, various Federal agencies, 9 including the Department of Justice,2 are authorized to receive, 10 investigate, and attempt to resolve complaints involving state 11 programs and services. 42 U.S.C. S 12133; 28 C.F.R. pt. 35, 12 subpts. F and G. In situations where complaints are not resolved 13 through the title II administrative process, the Attorney General 14 may initiate litigation. 28 C.F.R. S 35.174. 15 Similarly, the Department has important regulatory and 16 litigation responsibilities under section 504 of the 17 Rehabilitation Act of 1973, 29 U.S.C. S 794. Pursuant to 18 Presidential directive, 42 U.S.C. S 12134(a), the Attorney 19 General has promulgated regulations implementing section 504.3 20 21 1 Title II of the ADA and the implementing regulation took effect on January 26, 1992. 22 2 The Department of Justice is the agency designated by the 23 title II implementing regulation to investigate title II complaints relating to State and local government "programs, 24 services, and regulatory activities" in conjunction with "public safety." 28 C.F.R. S 35.190(b)(6). 25 3 In 1976, the President directed the Secretary of Health, 26 Education, and Welfare to "establish standards for determining who are handicapped individuals and guidelines for determining 27 (continued...) 28 3 1 45 C.F.R. Part 85 (1978). As with title II, various Federal 2 agencies, including the Department of Justice, are authorized to 3 receive, investigate, and attempt to resolve complaints involving 4 State programs and services under section 504. 28 C.F.R. 5 S 42.411 (coordination regulation); and S 42.530 (Department of 6 Justice's section 504 regulation for federally assisted 7 programs). 8 III. Resolution of this Case will Affect the Department's 9 Enforcement Duties 10 Plaintiff Bonnie P. Tucker is a private citizen who has 11 filed a complaint with this Court that includes allegations 12 arising under title II of the ADA and section 504 of the 13 Rehabilitation Act. The case law that is developed in private 14 suits brought pursuant to the ADA and section 504, such as the 15 instant action, will interpret the same statutory and regulatory 16 provisions upon which the government continually relies in its 17 own enforcement efforts. Because the Attorney General does not 18 have unlimited resources for enforcing civil rights laws, suits 19 brought by "private attorneys general" are critical to successful 20 implementation of those laws. See, e.g., Alexander v. Gardner- 21 Denver Co., 415 U.S. 36, 45 (1974) (title VII of the 1964 Civil 22 23 3(...continued) what are discriminatory practices, within the meaning of section 24 504." Exec. Order No. 11914, 41 Fed. Reg. 17871 (1976). The Secretary issued detailed regulations. See 45 C.F.R. Part 85 25 (1978). In 1980, the Secretary's responsibility was transferred to the Attorney General, Exec. Order No. 12250 (45 Fed. Reg. 26 72995 (1980)), and the regulations were "deemed to have been issued by the Attorney General" (id. at 72997; see 28 C.F.R. Part 27 41). 28 4 1 Rights Act (employment)); Trafficante v. Metropolitan Life Ins. 2 Co., 409 U.S. 205, 211 (1972) (title VIII of the 1968 Civil 3 Rights Act (fair housing)); Newman v. Piggie Park Enterprises, 4 Inc., 390 U.S. 400, 401-402 (1968) (title II of the 1964 Civil 5 Rights Act (public accommodations)). The government has a strong 6 interest in ensuring that the case law developed in private 7 litigation under the ADA and section 504 is consistent with the 8 government's interpretation of the statutes and regulations. The 9 United States has often participated as amicus curiae in cases 10 involving title II and section 5045 before federal courts. 11 IV. The Case Raises Issues of First Impression 12 The ADA went into effect January 26, 1992. This suit is one 13 of the first cases filed under that statute regarding direct 14 15 access to public entities' telephone emergency services, 16 including 9-1-1 systems.6 Many issues of first impression will 17 arise throughout the litigation. Because of its unique role in 18 4 The United States has been granted leave to participate as amicus curiae in private title II suits. See e.g., Ellen S. 19 v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994); Galloway v. Superior Court of the District of Columbia, 20 1994 WL 16210 (D.D.C). 21 5 See e.g., Consolidated Rail Corp. v. Darrone, 465 U.S. 22 624 (1984); University of Texas v. Camenisch, 451 U.S. 390 (1981); Southeastern Community College v. Davis, 442 U.S. 397 23 (1979); Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947 (1979). 24 6 Another case challenging the effectiveness of Phoenix's 25 9-1-1 is pending (Ferguson v. City of Phoenix, No. Civ. 95-0260- PHX-RCB). The United States has already moved to participate in 26 Ferguson, but the Court has not yet acted on the motion. Plaintiffs in both this action and Ferguson have moved to 27 consolidate the two cases. That motion is still pending. 28 5 1 formulating the regulation and acting as the primary, though not 2 exclusive, enforcer of the ADA, the government has developed an 3 expertise that should provide a perspective useful to the Court 4 in helping to resolve these issues. 5 Furthermore, because Congress explicitly delegated authority 6 to the Department of Justice to construe title II of the ADA by 7 regulation, the Department's regulation is legislative and should 8 be accorded "controlling weight unless [it is] arbitrary, 9 capricious, or plainly contrary to the statute." United States v. 10 Morton, 467 U.S. 822, 834 (1984). See also Chevron USA, Inc. v. 11 Natural Resources Defense Council, Inc., 467 U.S. 837, 844 12 (1984). The title II regulation promulgated by the Department 13 includes a provision relating specifically to the provision of 14 9-1-1 telephone emergency service. See 28 C.F.R. S 35.162. The 15 Department's interpretative comments for the rule, and the 16 Department's Title II Technical Assistance Manual provide 17 additional guidance for interpreting this requirement. See 28 18 C.F.R. Pt. 35 App. A at pp. 471-472; and the Department's Title 19 II Technical Assistance Manual at II-7.3000. The Department of 20 Justice is thus in a favorable position to inform the Court of 21 appropriate application of the regulation. 22 Counsel for the United States has contacted counsel for the 23 parties to seek their acquiescence in this Motion for Leave to 24 Participate as Amicus Curiae. Plaintiff does not oppose the 25 motion, but Defendants will oppose it. 26 27 28 6 1 CONCLUSION 2 For the foregoing reasons, the United States respectfully 3 urges the Court to grant the accompanying motion for leave to 4 participate in the case as amicus curiae. 5 6 Respectfully submitted this 21st day of December, 1995. 7 8 Respectfully submitted, 9 JANET NAPOLITANO DEVAL L. PATRICK 10 United States Attorney, Assistant Attorney General District of Arizona for Civil Rights 11 12 By: By: 13 Ronald R. Gallegos John Wodatch Assistant United States Joan Magagna 14 Attorney Robert J. Mather 15 U.S. Department of Justice Civil Rights Division Disability Rights Section 16 P.O. Box 66738 Washington, D.C. 20035-6738 17 Tel: (202) 307-2236 18 19 20 21 22 23 24 25 26 27 28 7 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by first class mail, a true and correct copy of the foregoing the Motion of the United States for Leave to Participate as Amicus Curiae. Suzanne M. Dohrer HAGLUND, DOHRER & WATTS Suite 850 4041 North Central Avenue Phoenix, AZ 85012 (Attorneys for Plaintiffs) Alisa J. Gray JONES, SKELTON & HOCHULI Suite 800 2901 North Central Avenue Phoenix, Arizona 85012 (Attorney for Defendant) SO CERTIFIED this 21st day of December, 1995. (Signature) Robert J. Mather IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) BONNIE P. TUCKER, an individual ) NO. CIV 95-2742-PHX-RGS Plaintiff, ) v. ) ) ORDER CITY OF PHOENIX, a municipality, ) and LYLE RODABAUGH, in his ) individual capacity as Commander ) of the Phoenix Police Department ) Communications Bureau, and JANE ) DOE RODABAUGH, husband and wife, ) Defendants. ) Having read and considered the United States' Motion for Leave to Participate as Amicus Curiae in the above-entitled matter, and good cause appearing, IT IS HEREBY ORDERED that the United States has leave to participate as amicus curiae in this action. Date: December , 1995 United States District Court Judge Roger G. Strand 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 ) 8 WILLIAM D. FERGUSON, et al., ) 9 Plaintiffs, ) NO. CIV 95-0260-PHX-RCB 10 ) CIV 95-2742-PHX-RCB 11 ) CIV 96-0305-PHX-RCB 12 v. ) (Consolidated) 13 CITY OF PHOENIX, et al., ) CONSENT ORDER 14 Defendant. ) 15 ) 16 I. Introduction 17 1. These three suits (now consolidated) were brought by William and Elizabeth 18 Ferguson, Bonnie Tucker, Jay Frankel, and Barbara Jean Coffman ("Plaintiffs") against the 19 City of Phoenix under the provisions of the Americans with Disabilities Act, 42 U.S.C. SS 20 12131-12134, the Rehabilitation Act of 1973, 29 U.S.C. S 794, as amended, and 42 U.S.C. 21 S 1983. In their complaints, plaintiffs allege, inter alia, that the City of Phoenix, Arizona 22 ("the City") discriminated against them on the basis of disability (hearing impairments) by 23 operating its emergency 9-1-1 system in a manner that failed to respond properly to callers 24 using a telecommunications device for the deaf ("TDD"). 25 2. On April 12, 1996, this Court issued an Order denying the City's motion for 26 summary judgment. In doing so, the Court accepted as "reasonable" the Department of 1 Justice's interpretation of the title II requirements for 9-1-1 systems to handle calls from 2 TDD users, as set forth in the Department's Title II Technical Assistance Manual (II- 3 7.3100): 4 Additional dialing or space bar requirements are not permitted. Operators should be trained to recognize incoming TDD signals and respond 5 appropriately. In addition, they also must be trained to recognize that "silent" calls may be TDD or computer modem calls and to respond appropriately to 6 such calls as well. 7 The City's 9-1-1 system in the past has required the transmission of tones, emitted by 8 pressing a TDD space bar, in order to respond via TDD, both with the manual transfer 9 system in place before August 21, 1995, and with the automatic diverter system in place 10 thereafter. Order at 3-4. The Court recognized, however, that "not all TDD's emit an 11 audible tone when the space bar is pressed." Order at 15. Accordingly, the Court found 12 that "[F]or 'no-tone' users, the City's space bar requirement fails to provide them with [the] 13 same 9-1-1 access afforded other TDD users, let alone the non-hearing impaired public." 14 Order at 15. The Court used the same analysis with respect to the City's motion for 15 summary judgment on the Rehabilitation Act claim. Order at 17-18. 16 3. The Court in its April 12, 1996, Order did not determine whether it would create 17 an undue financial or administrative burden for the City to alter its 9-1-1 system to eliminate 18 the space bar requirement and, accordingly, reached no conclusion as to liability. The 19 parties have agreed to forego litigation of that question with respect to claims for injunctive 20 relief and hereby waive a hearing and findings of fact and conclusions of law on the issues 21 of liability with respect to claims for injunctive relief, and further agree to the entry of this 22 Order as final and binding among themselves as to the issue of injunctive relief. 23 4. This Order does not constitute an adjudication or finding on liability, nor shall it 24 be construed as an admission by the City or a finding of wrongdoing or violation of any 25 applicable Federal law or regulation. 26 - 2 - 1 II. Role of the United States 2 5. The United States sought and was granted leave to participate as amicus curiae 3 in these actions. The U.S. Attorney General has enforcement responsibilities under title II 4 of the ADA and Section 504 of the Rehabilitation Act, including the authority to bring suit 5 to enforce these statutes. 6 6. The parties to these actions and the United States now agree that the United 7 States, because of its enforcement authority and interest in these cases, is so situated that 8 disposition of the cases in the United States' absence may leave the City subject to the risk 9 of incurring inconsistent obligations. Accordingly, the parties and the United States agree 10 that the United States should be joined as a party under Fed. R. Civ. P. 19(a)(2)(ii) for the 11 limited purpose of this Consent Order relating to injunctive relief. It is so ORDERED. 12 7. The United States agrees that the City's full implementation of the injunctive 13 provisions set forth below will meet the City's obligations under title II of the ADA and 14 Section 504 of the Rehabilitation Act with respect to providing effective communication for 15 TDD users seeking access to the City's 9-1-1 system. 16 17 III. Injunctive Relief 18 It is hereby ORDERED ADJUDGED AND DECREED as follows: 19 8. Technology. In order to provide individuals who use TDD's with direct access to 20 the City's 9-1-1 services, the City shall, within sixty (60) days of the date of this Order: 21 a. Install appropriate TDD 9-1-1 technology at each answering position. 22 b. Acquire additional TDD 9-1-1 equipment, or equivalent, to ensure that 23 backup equipment will be provided in case of an emergency or TDD 24 malfunction. 25 26 - 3 - 1 c. Evaluate its 9-1-1 system and procedures regarding the processing of TDD 2 calls that request police, fire or emergency medical services, and modify the 3 existing system and the procedures in order to ensure effective call handling. 4 This may include the transferring and/or conferencing of TDD calls with the 5 Police, Fire or Emergency Medical Services. 6 d. Include TDD 9-1-1 equipment in power failure contingency plans. 7 e. Record TDD calls electronically in the same manner as voice telephone calls. 8 9. Policies, practices, and procedures. In order to ensure effective processing of 9 TDD calls, the City shall, within sixty (60) days of the date of this Order, establish and 10 implement policies, practices and procedures to ensure that: 11 a. All 9-1-1 call-takers recognize incoming TDD tones and / or voice recorded 12 announcements and respond appropriately via TDD; that 13 b. All 9-1-1 call-takers consider "silent" open lines as potential TDD calls and 14 respond accordingly; and that 15 c. All policies, practices and procedures requiring TDD callers to press a space 16 bar are eliminated. 17 The policies and procedures shall be incorporated into the City's Standard Operating 18 Procedures and training materials. 19 10. Training. In order to ensure the proper operation of TDD's and related 20 equipment, as well as the effective processing of TDD calls by 9-1-1 call- takers, the City shall 21 provide comprehensive training for all 9-1-1 call-takers. The City has provided training to 22 all current call-takers and shall provide such training for newly hired call-takers. The 23 comprehensive training shall include: 24 a) General information about title II of the Americans with Disabilities Act and 25 Section 504 of the Rehabilitation Act; 26 - 4 - 1 b) General information about communication issues regarding individuals who are 2 deaf or hard of hearing, or who have speech impairments, including 3 information about American Sign Language; and 4 c) Practical instruction on identifying and processing of TDD calls, including the 5 importance of using proper syntax and protocol when responding to TDD calls 6 and relayed calls. 7 In addition to the above, all new employees do and shall receive hands-on training 8 in TDD communications as part of their initial training orientation. The comprehensive and 9 hands-on training for 9-1-1 call-takers shall take place before a call-taker handles calls alone. 10 The City shall also provide refresher training for each call-taker every six months 11 from the date of this Order in order to maintain each call-taker's skill levels. 12 11. Competency tests. To insure the effectiveness of its training, the City shall 13 (a) Utilize the Telecommunications for the Deaf, Inc.'s Emergency Access Self- 14 Evaluation program or its equivalent to establish criteria and test each 15 trainee's competency at the conclusion of the training; 16 (b) Develop and implement a supplemental training plan for any 9-1-1 call-taker 17 who does not satisfactorily complete the required training; 18 (c) Provide a refresher training course for each call-taker every six (6) months 19 from the date of this Order in order to maintain call-takers' skill levels; 20 (d) Re-evaluate any 9-1-1 call-taker's skill after any incident involving 21 unsatisfactory processing of a TDD call; 22 (e) Document all training provided, including each 9-1-1 call taker's employee 23 number, title and the date of training; and 24 (f) Provide copies of the documentation to Plaintiffs and/or the United States 25 upon request. 26 - 5 - 1 The City recently has developed and implemented various materials to establish 2 criteria and to test each new employee's competency at the conclusion of training, and has 3 developed and implemented a training program designed to satisfy the requirements of 4 subparts a - f. 5 12. Public education. Within sixty (60) days of the date of this Order, the City shall 6 begin working directly with organizations representing persons who are hearing or speech 7 impaired, to develop and implement a public education program to promote the use of 9-1-1 8 services by individuals who use TDD's. 9 13. Testing and audit. Beginning ninety (90) days after the date of this Order, the 10 City shall, on a quarterly basis, conduct test calls on each shift to call- taking positions as 11 routed by the Automatic Call Distributor ("ACD"). These tests shall be unannounced and 12 shall be documented to include the date and time of the test, the call-taker position, the 13 identification of the call as "silent," transmitting tones or a voice- recorded announcement and 14 whether the call was processed properly and efficiently according to departmental policies 15 and training directives. Counsel for the Plaintiffs, Counsel for the United States, and the 16 City shall work toward developing a mutually agreeable plan to ensure an objective and 17 effective test program. 18 If testing reveals inadequacies in the handling of TDD calls, the City shall take 19 immediate remedial action that may include as appropriate: additional training and 20 evaluation, equipment changes, additional policy or procedural changes, and disciplinary 21 action. Upon request, the City shall provide copies of the documentation to Plaintiffs and/or 22 the United States. 23 14. On-site evaluation. Within ninety (90) days after the effective date of this Order, 24 the City shall permit counsel for the Plaintiffs and counsel for the United States, along with 25 a technical advisor, Toni D. Dunne, at the United States' expense, to conduct an on-site 26 - 6 - 1 on-site evaluation. This evaluation will be conducted to determine the effectiveness of TDD 2 access to Phoenix's 9-1-1 services as a whole, including training, and practices, policies, and 3 procedures. If, as a result of this evaluation, the United States or Plaintiffs believe there are 4 deficiencies in Phoenix's 9-1-1 system, counsel for the United States, for the Plaintiffs, and 5 for the City shall meet and attempt to reach an agreement on remedying any deficiencies 6 identified. If no such agreement is reached within thirty (30) days, the United States, the 7 Plaintiffs, or the City may bring the issue to the Court for resolution. 8 9 IV. Implementation of the Order 10 It is further ORDERED that: 11 15. Progress report. Within sixty (60) days of the effective date of this Order, the 12 City shall submit its first report to counsel for Plaintiffs and for the United States detailing 13 the actions it has taken to comply with this Order. Within one hundred-twenty (120) days 14 of the date of this Order, the City shall submit its second report to counsel for Plaintiffs and 15 the United States detailing the actions it has taken to comply with this Order. 16 16. Audit Reports. During the two year period following the effective date of this 17 Order, results from each round of tests required by paragraph 13 shall be summarized and 18 sent to Plaintiffs and the United States on a semi-annual basis along with a description of 19 any actions taken to remedy inadequacies uncovered by the tests. 20 17. Final report. The City shall provide a final report to Plaintiffs and the United 21 States forty-five (45) days prior to the expiration date of the Order, detailing the actions 22 taken to comply with this Order and describing any actions taken to remedy inadequacies 23 uncovered by tests. 24 18. Records. The City shall retain during the life of this Consent Order records 25 necessary to document the implementation of and continued compliance with this Order and 26 - 7 - 1 shall allow the United States and Plaintiffs to review and copy such records upon reasonable 2 notice. 3 19. Resolution of Disputes. The parties and the United States shall attempt to 4 resolve informally any disputes that may occur under this Consent Order. If the parties and 5 the United States are unable to reach agreement to resolve a dispute within thirty (30) days 6 after the issue has been raised, the dispute may be submitted to the Court for resolution. 7 20. Jurisdiction. The Court shall retain jurisdiction over this Consent Order for 8 the purposes of enforcing this Order, resolving any disputes that may arise under this Order 9 and entering such further orders as may be appropriate. 10 20. Termination. This Order shall terminate two (2) years from the date of its 11 entry unless the Court finds good cause to extend any provision herein. 12 13 It is so ORDERED, this 24 day of June 1996. 14 15 ROBERT C. BROOMFIELD 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 - 8 - 1 Agreed and Consented To: 2 For the Plaintiffs: 3 4 Suzanne M. Dohrer 5 Stanley R. Watts DOHRER & WATTS 6 Suite 850 4041 North Central Avenue 7 Phoenix, AZ 85012 8 9 For the City of Phoenix, Arizona: 10 11 William R. Jones, Jr. Alisa J. Gray 12 Eileen Dennis JONES, SKELTON & HOCHULI 13 Suite 800 2901 North Central Avenue 14 Phoenix, Arizona 85012 15 16 For the United States of America: 17 JANET NAPOLITANO DEVAL L. PATRICK United States Attorney Assistant Attorney General 18 District of Arizona for Civil Rights 19 20 By: By: Ronald R. Gallegos John Wodatch 21 Assistant United States Joan Magagna Attorney Robert J. Mather 22 4000 U.S. Courthouse U.S. Department of Justice 230 N. First Avenue Civil Rights Division 23 Phoenix, AZ 85025 Disability Rights Section P.O. Box 66738 24 Washington, D.C. 20035-6738 25 26 - 9 - X FILED LODGED Bob Mather RECEIVED COPY 1 202/307-0595 APR 16 1996 2 FYI CLERK U S DISTRICT COURT DISTRICT OF ARIZONA 3 Suzanne Dohrer BY DEPUTY 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 WILLIAM FERGUSON, et al., ) )No. CIV 95-0260 PHX RCB 11 Plaintiffs, ) ) O R D E R 12 vs. ) ) 13 CITY OF PHOENIX, ) ) 14 Defendant. ) ) 15 16 Plaintiffs, William Ferguson, Bonnie Tucker and Jay 17 Frankel, bring this case pursuant to the Americans with 18 Disabilities Act ("ADA"), 42 U.S.C. S 12101 et seq., the 19 Rehabilitation Act, 29 U.S.C. S 794(a), and 42 U.S.C. S 1983. 20 Each plaintiff is deaf, and thereby qualifies for ADA 21 protection. Plaintiffs allege that defendant, the City of 22 Phoenix, operates its 911 emergency service in such a way as 23 to discriminate against the hearing impaired, in violation of 24 the ADA. Now before the court is defendant's motion for 25 summary judgment. The United States Department of Justice has 26 been permitted to appear as amicus curiae. Having read the 1 parties briefs and heard oral argument, the court now rules. 2 FACTS 3 A. Background. 4 All plaintiffs in this case have attempted to communicate 5 with the Phoenix 911 system through a telecommunications 6 device for the deaf ("TDD" or "TTY"). A TDD is the standard 7 instrument used by hearing impaired individuals who wish to 8 communicate via the telephone. It is similar to conversing by 9 electronic mail or modem. In order to communicate, both 10 parties must have TDD technology. A TDD caller types in his 11 half of the conversation, which is then transmitted over the 12 phone line and read by the recipient on a display on his TDD. 13 During a conversation only one person can talk at a time 14 because the phone lines can only transit TDD messages one at a 15 time. This makes TDD conversations slower than verbal 16 communication. As a result, a "TDD protocol" has been erected 17 within the deaf community. (United States Br. at 6.) 18 Apparently, "[j]ust as a hearing person will dial a telephone 19 number and wait to hear a person answer with a greeting before 20 proceeding to speak, a TDD caller will dial a telephone number 21 and wait for the person receiving the call to type a greeting 22 and the 'GA' (go ahead) before beginning to converse in text. 23 The TDD user does not typically press keys while awaiting a 24 response to his or her call. Pressing keys at this time would 25 not be considered common practice among TDD users. It is an 26 additional step that could be considered 'foreign' TDD 2 1 protocol." (Aff. of Toni D. Dunne at 4, United States Br. Ex. 2 A.) 3 Some, but not all, TDD's emit an audible "tone" that 4 signals properly trained hearing individuals that the call 5 they have received is a TDD call. Other TDD's have a "TDD 6 announcer" instead of the "tone" feature. The TDD announcer 7 transmits an actual voice recording that informs the other 8 party that they have received a TDD call. 9 B. Phoenix's 911 System and TDD Calls. 10 During the relevant time frame for this suit Phoenix had 11 two separate systems for handling 911 calls placed via TDD. 12 The first was in place before August 21, 1995. Essentially, a 13 TDD call would ring into 911 just like any other call and 14 would be verbally answered by a 911 operator. That call would 15 then be transferred to the one TDD machine located at an 16 auxiliary answering position. This transfer, which occurred 17 manually, required a) the TDD caller to initiate the audible 18 tone, and b) the operator to recognize that tone and transfer 19 the call. In other words, to get the operator to manually 20 transfer the call the TDD caller had to emit the audible tone. 21 Even after emitting the tone, no typed instructions were 22 given to a TDD caller informing the caller that the call was 23 being transferred or otherwise handled. Once the transfer was 24 completed, the system automatically transmitted the typed 25 message "Phoenix police department, give us your name address 26 and phone number, how can we help you?" This is the same 3 1 message that is currently transmitted under the City's new 911 2 system. Normally, however, "all TTY dialogue uses 3 abbreviations[,] and punctuations are not used." (Aff. of 4 Alfred Sonnestrahl P 52, PSOF Ex. D.) Again, this is due to 5 the relatively slow speed of TDD communications. 6 On August 21, 1995, the City implemented its current, 7 upgraded system for handling 911 TDD calls. Now two of the 30 8 answering booths are equipped with TDD technology. In 9 addition, an automatic diverter system was installed. This 10 system monitors all incoming 911 calls and, if a TDD audible 11 tone is detected, automatically transfers the call to one of 12 the positions equipped with TDD technology. Thus, for this 13 transfer to take place the caller must still initiate the TDD 14 audible tone. 15 If the system detects a TDD call when all 911 operators 16 are otherwise busy, a message is automatically sent to the 17 caller telling him that he has reached 911 and should remain 18 on the line. That TDD call is then placed in front of all 19 other holding calls. Once freed to handle the call, the 911 20 operator gets the verbal message "TDD call." This message is 21 repeated until the operator manually transfers the call to a 22 TDD equipped position. 23 Under either the new or old system, operators receiving 24 silent calls treated these calls as "911 hangups." Under 25 established procedure, operators would hangup on a silent call 26 and then call the caller back on a regular voice phone line. 4 1 However, according to defendant, "in September of 1995, the 2 City implemented a new procedure whereby an operator who 3 receives a silent call can press '5#' and automatically send a 4 message to a potential TDD caller to press the space bar. If 5 the silent caller is on a TDD, he can then press the space bar 6 and emit the Baudot tone, signalling the diverter to 7 automatically connect to the TDD station." (Def.'s Reply at 8 6.) 9 C. Plaintiffs' Experiences with 911. 10 In the early morning hours of August 14, 1994, plaintiff 11 Ferguson observed some suspicious looking individuals lurking 12 about the front of his home. He decided to call 911 and 13 report these people to the Phoenix police using his TDD. The 14 911 operator who answered Ferguson's call, hearing no audible 15 tone or response, hung up, in accordance with defendant's 16 official policy on "silent calls." Also in accordance with 17 that policy, the operator immediately attempted to call 18 Ferguson back. However, the line was busy. That was because, 19 in the interim, Ferguson had placed a second call to 911. The 20 operator who answered the second call heard an audible tone 21 that she recognized as a TDD signal. As a result, she 22 transferred the call to a different operator station, one 23 equipped with a TDD machine. This transfer took 30 seconds to 24 effectuate. Once the call was transferred the operator sent a 25 preprogrammed TDD message to Ferguson. However, that call 26 also was disconnected. Having been disconnected, the 5 1 operator, pursuant to official policy, dispatched the police 2 to plaintiff's home on a priority two check welfare call. 3 Based upon plaintiff's actual circumstances, however, the 4 police should have been dispatched to Ferguson's residence on 5 a priority one call. Yet, because of the disconnects, 6 plaintiff was unable to communicate the true nature of his 7 emergency. 8 While the police were en route, Ferguson called 911 twice 9 more. Both calls were answered and subsequently disconnected, 10 despite Ferguson causing his TDD to make the audible tone. 11 Meanwhile, the individuals broke into plaintiff's truck. 12 Having gotten no satisfaction from 911, Ferguson 13 unsuccessfully attempted to thwart the thieves himself. 14 On January 30, 1995, Ferguson again called 911, this time 15 to report ongoing vandalism on his property. As had happened 16 before, the 911 operator hung up on his call. Ferguson tried 17 calling back. Meanwhile, the operator called Ferguson back 18 but received a busy signal. As a result, she asked US West to 19 break through the line. When the US West operator got no 20 response, the 911 operator again sent the police to Ferguson's 21 home on a priority two basis. As these goings on were 22 unbeknownst to Ferguson, he tried reaching 911 three more 23 times, each time emitting the TDD audible tone. It was only 24 on his fourth attempt that Ferguson was connected to a 911 25 operator with TDD equipment. Apparently, the three previous 26 operators had failed to recognize the TDD audible tone and, as 6 1 a result, disconnected these otherwise "silent calls." 2 On August 28, 1995, Ferguson observed a prowler lurking 3 behind his neighbor's garage. He called 911 as a result. 4 This call was handled under the new 911 system. However, the 5 911 operator again disconnected his call. This futile process 6 was then repeated. Ferguson then made a third call to 911. 7 After a few minutes delay, he was connected to a TDD operator. 8 However, during the course of that call, Ferguson experiences 9 delays lasting several minutes, during which time he was 10 unable to communicate with the 911 operator. 11 As a result of these experiences, Ferguson complained on 12 a number of occasions to the City about its 911 service. 13 These various complaints were reviewed by Commander Lyle 14 Rodabough. He acknowledged plaintiff's troubles, expressed 15 his dissatisfaction with the way plaintiff was treated by the 16 system, and vowed corrective action. 17 On November 25, 1995, plaintiff Tucker called 911 via her 18 TDD. She did so to test the system because her father, who is 19 also deaf, had unsuccessfully tried to reach 911 earlier that 20 evening when he believed he was experiencing a medical 21 emergency. Her first call went unrecognized as a TDD call. 22 On her second call she communicated the purpose of her call to 23 the 911 operator. The operator suggested Tucker hang up and 24 again try to test the system. Tucker then placed three more 25 calls to 911. The first two received no response after 2.5 26 and 3 minutes on the line, respectively. This, despite 7 1 Tucker's emission of the TDD audible tone. On the third call 2 the TDD tone was properly recognized. 3 On December 30, 1995, plaintiff Frankel called 911 to 4 report a theft. His TDD, instead of emitting an audible tone, 5 transmits an actual voice message alerting the other party 6 that his is a TDD call. Despite this verbal announcement, 7 each of his five calls to 911 were disconnected by the various 8 911 operators who answered his calls. 9 DISCUSSION 10 I. Summary Judgment Standard 11 To grant summary judgment, the court must determine that 12 in the record before it there exists "no genuine issue as to 13 any material fact" and, thus, "that the moving party is 14 entitled to judgment as a matter of law." Fed. R. Civ. P. 15 56(c). In determining whether to grant summary judgment, the 16 court will view the facts and inferences from these facts in 17 the light most favorable to the nonmoving party. Matsushita 18 Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986). 19 The mere existence of some alleged factual dispute 20 between the parties will not defeat an otherwise properly 21 supported motion for summary judgment; the requirement is that 22 there be no genuine issue of material fact. Anderson v. 23 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material 24 fact is any factual dispute that might affect the outcome of 25 the case under the governing substantive law. Id. at 248. A 26 factual dispute is genuine if the evidence is such that a 8 1 reasonable jury could resolve the dispute in favor of the 2 nonmoving party. Id. A party opposing a motion for summary 3 judgment cannot rest upon mere allegations or denials in the 4 pleadings or papers, but instead must set forth specific facts 5 demonstrating a genuine issue for trial. See id. at 250. 6 Finally, if the nonmoving party's evidence is merely colorable 7 or is not significantly probative, a court may grant summary 8 judgment. See, e.g., California Architectural Build. Prods., 9 Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 10 1987), cert. denied, 484 U.S. 1006 (1988). 11 II. Requirements of the ADA. 12 Congress, finding among other things that "individuals 13 with disabilities continually encounter various forms of 14 discrimination, including . . . the discriminatory effects of 15 . . . communication barriers . . . [and the] failure to make 16 modifications to existing facilities and practices," enacted 17 the ADA. 42 U.S.C. S 12101. Section 202 of Title II of the 18 ADA provides, in relevant part, that "no qualified individual 19 with a disability shall, by reason of such disability . . . be 20 denied the benefits of the services . . . of a public entity, 21 or be subjected to discrimination by any such entity." 42 22 U.S.C. S 12132. 23 In enacting this statute, Congress also specifically 24 authorized the Attorney General to promulgate all regulations 25 necessary to implement Title II. 42 U.S.C. S 12134(a). 26 Pursuant to this statutory mandate, the Department of Justice 9 1 ("the Department") issued regulations that are codified in 2 volume 28 of the Code of Federal Regulations. The overriding 3 concern of those regulations relevant to this case is that a 4 public entity's communications with its hearing impaired 5 citizens be "as effective as [its] communications with 6 others." 28 C.F.R. S 35.160. Thus, public entities that 7 offer 911 emergency service must also provide individuals who 8 use TDD's "direct access" to that service.1 28 C.F.R. S 9 35.162. This means that "TDD's or equally effective 10 telecommunication systems shall be used to communicate with 11 individuals with impaired hearing or speech." 28 C.F.R. S 12 35.161. Thus, the regulations require that public entities 13 "take appropriate steps, including equipping their emergency 14 systems with modern technology, as may be necessary to 15 promptly receive and respond to a call from users of TDD's and 16 computer modems." 28 C.F.R. S 35.162, App. A at 471. The 17 Department determines compliance by examining the performance 18 of a particular 911 service. Id. 19 Also pursuant to statutory mandate, the Department 20 promulgated the Title II Technical Assistance Manual 21 ("Manual"), to aid in understanding the rights and obligations 22 created by the ADA and its attendant regulations. See 42 23 24 1"'Direct access' means that emergency telephone services can directly receive calls from TDD's and computer modem users 25 without relying on outside relay services or third party services." Department of Justice Title II Technical 26 Assistance Manual II-7.3100 at 41. 10 1 U.S.C. S 12206(c)(3). The Manual, interpreting the 2 Department's ADA regulations outlined above elaborates on the 3 requirements of Title II in the 911 context: 4 Are any additional dialing or space bar requirements permissible for 911 systems? No. Additional dialing or 5 space bar requirements are not permitted. Operators should be trained to recognize incoming TDD signals and 6 respond appropriately. In addition, they also must be trained to recognize that "silent" calls may be TDD or 7 computer modem calls and to respond appropriately to such calls as well. 8 9 Manual, II-7.3100 at 42 (emphasis in original). 10 It is well settled that "considerable weight should be 11 accorded to an executive department's construction of a 12 statutory scheme it is entrusted to administer." Chevron, 13 U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 14 U.S. 837, 844 (1984). Thus, when Congress has explicitly 15 authorized an agency to promulgate regulations relating to a 16 specific statute, "[s]uch legislative regulations are given 17 controlling weight unless they are arbitrary, capricious, or 18 manifestly contrary to the statute." Id. This means that the 19 Department's ADA regulations should normally be given 20 presumptive effect. 21 Moreover, "an agency's interpretation of its own 22 regulations is given deference." Trustees of the Cal. State 23 Univ. v. Riley, -- F.3d --, 1996 WL 29091 at *5 (9th Cir. Jan. 24 26, 1996). Thus, the court must "defer to the [Department's] 25 interpretation unless an 'alternative reading is compelled by 26 the regulation's plain language or by other indications of the 11 1 [Department's] intent at the time of the regulation's 2 promulgation.'" Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 3 2381, 2386 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 4 415, 430 (1988)). It is with this mandate that the court 5 begins its analysis. 6 The City, in moving for summary judgment, simply asserted 7 that it does not discriminate against plaintiffs because it 8 provides TDD calls "direct access" to 911. In other words, 9 because no relay service is required for dialing 911, and 10 because the City has 911 TDD capabilities, the City provides 11 direct access to its 911 services. In its reply the City, 12 confronted by the Department's statutorily authorized 13 regulations and their interpretations of them, argues that 14 this court should ignore those interpretations. 15 Defendant challenges the legal effect of the Department's 16 Manual, asserting that, despite the law quoted above, the 17 court should ignore the Manual's directive that a space bar 18 requirement violates the ADA. The essence of this argument is 19 that, because "there is currently no technology available 20 whereby a 911 system can automatically detect every call from 21 every TDD unit or computer[] without the caller hitting the 22 space bar to emit a tone the system can understand[,]" the 23 Department's "no space bar" requirement is arbitrary and 24 capricious. (Def.'s Reply at 18.) In support of this 25 position, defendant cites Chevron. 26 Chevron is a two step inquiry. First, the court must 12 1 look to the intent of Congress and see if the agency had the 2 power to act as it did and to determine if Congress has 3 already addressed the issue being challenged. However, "[i]f 4 Congress has not directly addressed the issue, the question is 5 whether the agency's interpretation is reasonable and based 6 upon a permissible construction of the statute." Romero v. 7 Immigration and Naturalization Service, 39 F.3d 977, 980 (9th 8 Cir. 1994). 9 It is undisputed that Congress has authorized the agency 10 action now being challenged. Moreover, the City does not 11 argue that Congress has directly addressed the space bar 12 issue. Thus, left with what amounts to a step two challenge, 13 the court must inquire whether the Department's "no space bar" 14 interpretation "is reasonable 'in light of the language, 15 legislative history, and policies of the statute.'" 16 Republican National Committee v. Federal Elec. Cmm'n, -- F.3d 17 --, 1996 WL 69837, at *5 (D.C. Cir. Feb. 20, 1996) (quoting 18 Natural Resources Defense Council v. United States EPA, 822 19 F.2d 104, 111 (D.C. Cir. 1987)). 20 In enacting the ADA, Congress explicitly stated: 21 It is the purpose of this chapter-- 22 (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals 23 with disabilities; 24 (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals 25 with disabilities; 26 (3) to ensure the Federal Government plays a central role 13 1 in enforcing standards established in this chapter on behalf of individuals with disabilities; and 2 (4) to invoke the sweep of congressional authority, 3 including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major 4 areas of discrimination faced day-to-day by people with disabilities. 5 6 42 U.S.C. Section 12101(b). Thus, the purpose of the ADA is clearly 7 both broad and remedial; to ensure "the elimination of 8 discrimination against individuals with disabilities." Id. 9 With regard to 911 service, Congress enacted the ADA with 10 the intention that "the telephone emergency services operated 11 by local and state governments be accessible to [hearing 12 impaired] individuals." H.R. Rep. No. 596, 101st Cong., 2d 13 Sess., 67 (1990). This concern was echoed in the Department's 14 subsequent regulations. See 28 C.F.R. Section 35.162, App. A at 471 15 ("The legislative history of title II specifically reflects 16 congressional intent that public entities must ensure that 17 telephone emergency services, including 911 services, be 18 accessible to persons with impaired hearing and speech through 19 telecommunication technology."). Moreover, the House Report 20 on the ADA noted that: "Unlike the other titles in this Act, 21 title II does not list all of the forms of discrimination that 22 the title is intended to prohibit. Therefore the purpose of 23 [section 204] is to direct the Attorney General to issue 24 regulations setting forth the forms of discrimination 25 prohibited." H.R. Rep. No. 485(III), 101st Cong., 2d Sess., 26 52 (1990). 14 1 With this as a backdrop, the court is satisfied that the 2 Department's Manual (which interprets its regulations) is 3 reasonable. The Manual's "no space bar" requirement is 4 consistent with Congress' stated desire to end discrimination 5 against individuals like the plaintiffs. Furthermore, this 6 requirement is reasonable, for it takes into account that not 7 all TDD's emit an audible tone when the space bar is pressed. 8 For "no-tone" TDD users, the City's space bar requirement 9 fails to provide them with same 911 access afforded other TDD 10 users, let alone the non-hearing impaired public. For this 11 reason alone the "no space bar" requirement in neither 12 arbitrary nor capricious. 13 In short, the City quarrels with the Manual because it 14 disagrees with its substantive requirements. Although it may 15 be true that the Department's interpretation of the ADA is not 16 the only plausible one, that is immaterial, for it also 17 "reflects a reasonable reading of the statute." National 18 Republican Committee, 1996 WL 69837, at *5. This is all that 19 Chevron requires.2 20 2Although the City frames this as a Chevron challenge, an 21 argument could be made that, in reality, the question at bar is governed by the Administrative Procedure Act ("APA"). See 22 5 U.S.C. Section 706(2) (A). First, the court notes that defendant challenges the Department's interpretation of its regulations. 23 Such a challenge is governed by Thomas Jefferson Univ., 114 S. Ct. at 2386. In that case, the party challenging the agency's 24 interpretations did so pursuant to the APA. Moreover, the District of Columbia Circuit Court of 25 Appeals has recently had occasion to address the dichotomy between Chevron and the APA. See Arent v. Shalala, 70 F.3d 26 610 (D.C. Cir. 1995). There, the court was confronted with a 15 1 The City next asserts that, even if the no space bar 2 requirement is the law, the alternatives are administratively 3 and financially unreasonable. The City accurately notes that 4 the ADA does not "[r]equire a public entity to take any action 5 challenge to the FDA's regulation defining the term 6 "substantial compliance," as used in 21 U.S.C. S 343(q)(4)(D). Both the parties and the District Court analyzed plaintiff's 7 challenge under Chevron. The court of appeals, however, in a divided panel, disagreed, holding that "[i]n challenging the 8 FDA's regulation defining 'substantial compliance,' appellants seek traditional arbitrary and capricious review" governed by 9 the APA and its progeny. Arent, 70 F.3d at 615. In the majority's view, a Chevron challenge concerns "'[t]he power of 10 an administrative agency to administer a congressionally 11 created . . . program.'" Id. (alterations and emphasis in original) (quoting Chevron, 467 U.S. at 843). Thus, according 12 to Arent, Chevron is concerned with whether the agency had the authority to act as it did. However, where the sole issue is 13 whether the agency discharged its authority reasonably, "[s]uch a question falls within the province of traditional arbitrary and capricious review." Id. at 616. This is the 14 very essence of the City's challenge. However, even were the court to analyze this case under 15 the APA, the City's challenge still must fail. The City charges that the Manual is arbitrary and capricious because 16 "the record lacks any evidence that the Department of Justice has accounted for the[] technological considerations [outlined 17 above] in dictating its 'no space bar' guideline." (Def.'s Reply at 20.) However, the City has provided no evidence that 18 the Department did not consider technological limitations in interpreting its regulations. In fact, there is no record at 19 all on this question. However, the burden is not on the agency to show that its interpretation is not arbitrary and 20 capricious. Rather, "[t]he burden of proof under the arbitrary and capricious standard is on the party challenging" 21 the agency. MicKinley v. United States, 828 F. Supp. 888, 892 (D.N.M. 1993); see also Sierra Club v. Robertson, 810 F. Supp. 22 1021, 1025 (W.D. Ark. 1992) ("Plaintiffs bear the burden on all issues in this case.") (Arnold, Circuit Judge, sitting by 23 designation). Thus, absent evidence that the Department failed to consider technological limitations and that this 24 failure was somehow unreasonable, the court cannot say that the Department's interpretive guidelines are no longer 25 entitled to deference. Cf. Thomas Jefferson Univ., 114 S. Ct. at 2386. In this regard, mere argument from counsel is 26 insufficient. 16 1 that it can demonstrate would result in a fundamental 2 alteration in the nature of the service, program, or activity 3 or in undue financial and administrative burdens." 28 C.F.R. 4 S 35.150(a)(3). 5 The essence of its argument is that to equip every 911 6 workstation with a TDD, when coupled with other necessary 7 equipment, the redesign of the workstations to create 8 additional space, additional training, a budgetary increase to 9 handle operator overtime, as well as other increased expenses, 10 would cost approximately $1.3 million. However, this argument 11 was first made in defendant's reply. Plaintiffs have not had 12 the opportunity to address it. Without such an opportunity 13 the court declines to address this issue. Defendant may 14 reassert this issue in further briefing if it so desires. 15 III. The Rehabilitation Act. 16 Plaintiffs also charge the City with violating the 17 Rehabilitation Act. See 29 U.S.C. S 794(a). It provides, in 18 relevant part: 19 No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or 20 her disability, be excluded from the participation in, or be denied the benefits of, or be subjected to 21 discrimination under any program or activity receiving Federal financial assistance. 23 Id. 24 Initially, defendant moves for summary judgment on the 25 same basis as it did under the ADA; because it provides 26 "direct access" to TDD callers. However, for the reasons 17 1 stated above, this argument fails. 2 Defendant next contends that plaintiffs are not entitled 3 to compensatory damages under the Rehabilitation Act, citing 4 Franklin v. Gwinnett County Pub. Schs., -- U.S. --, 112 S. Ct. 5 1028 (1992). In Franklin, the Court held that an individual, 6 suing under Title IX, is not limited to equitable remedies, 7 and can recover money damages for a defendant's intentional 8 violation of that Act. 9 A number of courts since have looked to Franklin to 10 determine whether compensatory damages are available under 11 Title VI. This is because the Court, in finding a damages 12 remedy available under Title IX, cited to cases construing 13 Title VI. These post-Franklin cases have uniformly held that 14 compensatory damages under Title VI are available, but only 15 for intentional violations of the act. See, e.g., Tafoya v. 16 Bobroff, 865 F. Supp. 742, 749 (D.N.M. 1994) (collecting 17 cases); Tyler v. City of Manhattan, 849 F. Supp. 1442, 1444 18 (D. Kan. 1994); Miller v. Spicer, 822 F. Supp. 158, 166-168 19 (D. Del. 1993). In this regard, plaintiffs assert that 20 "Phoenix's official policies and practice and its continuing 21 and knowing violations of Plaintiffs' civil rights over more 22 than a year, evinces intentional discrimination deserving of 23 compensatory as well as punitive relief," citing as evidence 24 the entire factual background of this case. (Pls.' Response 25 at 15.) 26 Defendant fails to cite case law dealing with the level 18 1 of proof necessary to find intentional discrimination in the 2 context of the Rehabilitation Act. Nor has the court's own 3 research unearthed any cases addressing this standard. 4 However, the court notes that in S 1983 cases conduct is 5 intentional when "the policymaker acted with at least 6 deliberate indifference to the strong likelihood that a 7 violation of federally protected rights will result from the 8 implementation of the [challenged] policy, training, protocol 9 or custom." Penney v. Town of Middletown, 888 F. Supp. 332, 10 340 (D.N.H. 1994) (citing Canton v. Harris, 489 U.S. 378, 385 11 (1989)). Thus, the inquiry collapses into a search for 12 evidence of such deliberate indifference. 13 The most which has been shown is the Department's view of 14 the ADA's requirements as set forth in an August 3, 1994 15 letter from the Department to former Mayor Paul Johnson. 16 Although it informed the Mayor of the Department's 911 17 settlement with the City of Los Angeles, it made no mention of 18 the no space bar requirement or the Department's binding view 19 of its manual. The letter also encouraged the City to review 20 its 911 service to ensure that it complied with the law. 21 This is hardly the stuff of intentional conduct or 22 deliberate indifference. It is a stretch to say that such a 23 letter could create an inference that the City knew what the 24 Department's interpretive Manual required in August of 1994, 25 and yet chose to continue its space bar policy. For compensa- tory damages based on intentional conduct more compelling 19 1 evidence is required. Indeed, there is no evidence, before 2 the court, that the City actually knew of the Manual's 3 requirements. Moreover, it disregards the other qualities of 4 the City's 911 system and their efforts to address concerns of 5 plaintiffs and persons similarly situated to them. 6 Furthermore, without more explicit notice that the manual had 7 the force of law or that the City did not have a faith belief 8 that the Manual did not have the force and effect of law, the 9 City cannot be held to have acted intentionally or with 10 deliberate indifference to plaintiffs' rights. However, at 11 defendant's request, discovery has been stayed essentially 12 since the inception of this case. Plaintiffs are entitled to 13 test the City's knowledge and belief by appropriate discovery. 14 Hence, it is premature to resolve this issue on the current 15 state of the record. 16 IV. Plaintiffs' S 1983 claim. 17 Defendant next contends that plaintiffs' S 1983 claim 18 must be dismissed because the ADA and the Rehabilitation Act 19 preclude such relief. In essence, the City argues that, 20 because the ADA and the Rehabilitation Act have comprehensive 21 remedial schemes, a S 1983 claim cannot be predicated on their 22 violation. "This is a question of first impression in the 23 Ninth Circuit." Madsen v. Boise State Univ., 976 F.2d 1219, 24 1225 (9th Cir. 1992) (Norris, J., dissenting from majority's 25 dismissal for lack of standing). 26 It is true that, when Congress has enacted a statute with 20 1 a comprehensive enforcement mechanism, a separate claim for 2 S 1983 enforcement is not available. Middlesex Cty. Sewerage 3 Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 21 (1981). 4 However, the court must "'not lightly conclude the Congress 5 intended to preclude reliance on S 1983 as a remedy for the 6 deprivation of a federally secured right. The burden is on 7 the State to show by express provision or other specific 8 evidence from the statute itself that Congress intended to 9 foreclose such private enforcement.'" Madsen, 976 F.2d at 10 1225 (Norris, J., dissenting) (emphasis added) (quoting Wilder 11 v. Virginia Hosp. Ass'n, 496 U.S. 498, 520-21 (1990)). In 12 Madsen, Judge Norris found that nothing in the Rehabilitation 13 Act itself foreclosed S 1983 relief. Indeed, such a holding 14 has widespread acceptance. See Penney, 888 F. Supp. at 340 15 (collecting cases). Moreover, this analysis yields the same 16 result with respect to the ADA. See Independent Housing 17 Servs. v. Fillmore Center Assocs., 840 F. Supp. 1328, 1345 18 (N.D. Cal. 1993) (relying upon the Madsen dissent in holding 19 that "the ADA does not preclude an action under section 20 1983"). While defendant asserts that "both the ADA and the 21 Rehabilitation Act of 1973 have comprehensive remedial 22 schemes," (Def's Motion at 14.), it does so baldly, citing 23 nothing "from the statute itself," express, specific or 24 otherwise, that demonstrates Congress intended to prevent S 25 1983 relief predicated on a violation of either the ADA or the 26 Rehabilitation Act. 21 1 The City next argues that plaintiffs' S 1983 claim must 2 fail because they have not produced evidence that the City 3 acted with "at least deliberate indifference to the strong 4 likelihood that a violation of federally protected rights" 5 would result from its 911 policies. See Penney, 888 F. Supp. 6 at 340. This argument has force for the reasons previously 7 noted in the Rehabilitation Act discussion. The City has 8 improved its 911 system. Again, the court cannot say that the 9 letter to the City is sufficient evidence that it acted with 10 "at least deliberate indifference to the strong likelihood" 11 that maintaining its space bar policy would violate the 12 federally protected rights of its hearing impaired citizens. 13 But also, again, plaintiffs are entitled to discovery on the 14 issue. 15 V. Punitive Damages 16 Last, defendant argues that, as a matter of law,3 17 punitive damages are never available under the ADA, the 18 Rehabilitation Act or S 1983. With respect to the first two 19 statutes, the City cites Cortes v. Board of Governors, 766 F. 20 Supp. 623, 626 (N.D. Ill. 1991), in support of its position. 21 In that pre-Franklin case, the court held that punitive 22 damages are not recoverable in a Rehabilitation Act claim. 23 3 At oral argument the City, for the first time, argued 24 that plaintiffs are not entitled to punitive damages because 25 the facts of this case do not warrant such extraordinary relief. While the court agrees, since this theory was not 26 briefed by either party, the court will not rely exclusively on it. 22 1 However, the court "cannot rely on the case law issued prior 2 to the Supreme Court's decision in Franklin to determine the 3 propriety of punitive damages under section 504" of the 4 Rehabilitation Act. Moreno v. Consolidated Rail Corp., 63 5 F.3d 1404, 1418 (6th Cir. 1995). In Moreno, the Sixth Circuit 6 concluded that, in the aftermath of Franklin, "punitive 7 damages are an appropriate remedy for an intentional violation 8 of section 504." Id. However, since the court has concluded 9 that, based on the current record, there is insufficient 10 evidence of an intentional violation, punitive damages would 11 not lie for the alleged Rehabilitation Act violation. But 12 again, plaintiffs have not had their opportunity for 13 discovery. 14 Finally, with respect to their S 1983 claim, the City is 15 correct that plaintiffs are precluded from recovering punitive 16 damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 17 247, 271 (1981) ("we hold that a municipality is immune from 18 punitive damages under 42 U.S.C. S 1983"). 19 IT IS ORDERED granting, in civil 96-305 PHX CAM, 20 plaintiffs' motion to consolidate (doc 7). All future 21 pleadings in that case shall be docketed in civil 95-260 PHX 22 RCB. 23 IT IS FURTHER ORDERED granting, in part, and denying, in 24 part, defendant's motion for summary judgment (doc. 13). 25 IT IS FURTHER ORDERED denying defendant's motion to 26 strike and for expedited ruling (doc. 108). 23 1 IT IS FURTHER ORDERED denying defendant's motion to 2 revoke the participation of the United States as amicus curiae 3 and for expedited ruling (doc. 109). 4 IT IS FURTHER ORDER setting a status conference in this 5 case for April 29, 1996, at 3:45 p.m. in courtroom #3. The 6 purpose of this conference is to appraise the court on the 7 progress of negotiations between the parties and to determine 8 whether, and what, future hearings need to be scheduled. 9 DATED this 12 day of April, 1996. 10 12 Robert C. Broomfield 13 United States District Judge 14 Copies to counsel of record 15 16 17 18 19 20 21 22 23 24 25 26 24 No. 96-17350 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM D. FERGUSON; ELIZABETH T. FERGUSON; BONNIE P. TUCKER; JAY T. FRANKEL; BARBARA JEAN COFFMAN, Plaintiffs-Appellants v. CITY OF PHOENIX; LYLE RODABOUGH; JANE DOE RODABOUGH, Defendants-Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE JANET NAPOLITANO ISABELLE KATZ PINZLER United States Attorney Acting Assistant Attorney General RONALD R. GALLEGOS Assistant JESSICA DUNSAY SILVER United States Attorney GREGORY B. FRIEL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3876 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Procedural History . . . . . . . . . . . . . . . . . . . . . . 3 B. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 12 ARGUMENT: I. PLAINTIFFS MAY SEEK COMPENSATORY DAMAGES FOR VIOLATIONS OF THE "REASONABLE MODIFICATIONS" AND "REASONABLE ACCOMMODATIONS" REQUIREMENTS OF TITLE II AND S 504 WITHOUT ALLEGING INTENTIONAL DISCRIMINATION . . . . . . . . . . . . . . . . . 14 A. This Court Allows Claims For Compensatory Damages Under S 504 In Failure-To- Accommodate Cases . . . . . . . . . . . . . . . . . . . . 15 B. The Supreme Court's Franklin Decision Confirms That Compensatory Damages Are Available Under Title II And S 504 In The Absence Of Intentional Discrimination . . . . . . . . . 17 1. Congress did not rebut the presumption in favor of compensatory damages . . . . . . . . . . . . . . . . . . . . 19 a. Statutory Language . . . . . . . . . . . . . . . . . . . 19 b. Legislative History . . . . . . . . . . . . . . . . . . . 21 2. The Franklin presumption applies under Title II and S 504 regardless of whether the plaintiff alleges intentional discrimination . . . . . . . . . . . . . . . . . 23 - i - TABLE OF CONTENTS (continued): PAGE II. PRIVATE PLAINTIFFS WHO SEEK COMPENSATORY DAMAGES UNDER TITLE II OR S 504 HAVE A RIGHT TO A JURY TRIAL . . . . . . . . . . . . . . . . . . . . . 31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . .. . . .32 CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES CASES: Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987), modified, 866 F.2d 318 (9th Cir.), cert. denied, 493 U.S. 871 (1989) . . . . . . . . . . . 2 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . . . . . . 16 Burkhart v. WMATA, No. 96-7163 (D.C. Cir., argued Feb. 21, 1997) . . . . . . . . . . . . . . . . . . . . . . 18 Cannon v. University of Chicago, 441 U.S. 677 (1979). . . . . . . . . . . . . . . . . . . . . 2, 18, 28 Carter v. Orleans Parish Pub. Schs., 725 F.2d 261 (5th Cir. 1984) . .. . . . . . . . . . . . . . . .. . . . . . . . . 16 Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) . . . . . . . . . . . . . . . . . . . . . . . .26 Curtis v. Loether, 415 U.S. 189 (1974) . . . . . . . . . . . . . . . . .31 Ferguson v. City of Phoenix, 931 F. Supp. 688 (D. Ariz. 1996) . . . . . . . . . . . . . . . . . . . . . . .. .passim Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992) . . . . . . . . . . . . . . . . . . .. . . . passim Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987) . . . . . . . . . .15, 16, 17 Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983) . . . . . . . . . . . . . . . . . .25, 26, 28, 29 - ii - CASES (continued): PAGE J.L. v. Social Security Admin., 971 F.2d 260 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 16 KLK, Inc. v. Department of Interior, 35 F.3d 454 (9th Cir. 1994) . . . . . . . . . . . . . . . .. . . . . 2 Lane v. Pena, 116 S. Ct. 2092 (1996) . . . . . . . . . . . . . . . .16, 18 Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982) . . . . . . . .. . . . . . . . .. 21 Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968) (per curiam) . . . . . .. . . . . . . . . . .2, 20 Owen v. City of Independence, 445 U.S. 622 (1980). . . . . . . . . . 26, 27 Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994) . . . . . . . . . . . . . .. .16, 18, 20 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . . .. . . . . . . . .25, 26 Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir. 1981) . . . . . . . .. . . . . . . . . . . . 29 Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978) . . . . . . . . . .. . . . . . . . . . . . . . 28 Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642 (8th Cir. 1994) . . . . . . . . . . . .. . . . . . . . . . . . .16, 18 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . .. . . . . . . . . . . . .13, 18 Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991) . . . . . . . . . . . . . .. . 31 Texas & Pacific Rv. Co. v. Rigsby, 241 U.S. 33 (1916) . . . . . . . . . 24 Thaver v. Boston, 36 Mass. 511 (1837) . . . . . . . . . . . . . . .. . . 26 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . .. . . . . . 2 Tyler v. City of Manhattan, No. 94-3344 (10th Cir., argued Nov. 15, 1995) . . . . . . . . .. . . . . . . . 18 - iii - CASES (continued): PAGE United States v. Fordice, 505 U.S. 717 (1992) . . . . . . . . . . . . . 28 W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) . . . . . . . . . . .. . 16, 18 Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . 18 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) . . . . . . . . . 12 Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . . . . . 28 Wood v. President & Trustees of Spring Hill College, 978 F.2d 1214 (11th Cir. 1992) . . . . . . . . . . . . . . 16 CONSTITUTION, STATUTES & REGULATIONS: Constitution of the United States: Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . .27 Spending Clause . . . . . . . . . . . . . . . . . . . . . 25, 27, 28 Seventh Amendment . . . . . . . . . . . . . . . . . . . . . . . 14, 31 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . 19 Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . 27, 28 Americans with Disabilities Act (ADA): 42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . . .. . . . . .26 Title I, 42 U.S.C. 12111-12117 . . . . . . . . . . .. . . . . . . . 22 Title II, 42 U.S.C. 12131-12165 . . . . . . . .. . . . . . . . .passim 42 U.S.C. 12132 . . . . . . . . . . . . . .. . . . . . . . . .12 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . 1, 14, 17 Title III, 42 U.S.C. 12181-12189 . . . . . . . . . . . .. . .20, 22 42 U.S.C. 12188(a)(1) . . . . . . . . . . . . . .. . . . . . 20 42 U.S.C. 12188(b)(2)(B) . . . . . . . . . . .. . . . . . . 20 42 U.S.C. 12202 . . . . . . . . . . . . . .. . . . . . . .. . . .19 - iv - STATUTES & REGULATIONS (continued): PAGE Civil Rights Act of 1964: Title II, 42 U.S.C. 2000a et seq.: 42 U.S.C. 2000a-3(a) . . . . . . . . . . . . . .. . . . . . .20 Title VI, 42 U.S.C. 2000d et seq. . . . . . . . . . . . . . . passim 42 U.S.C. 2000d . . . . . . . . . . . . . .. . . . . . . . . 18 42 U.S.C. 2000d-1 . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. 2000d-7(a)(1) . . . . . . . .. . . . . . . . . . . .19 42 U.S.C. 2000d-7(a)(2) . . . . . . . . . . . . . . . . . 15, 19 Title VII, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . 12 Education Amendments of 1972, Title IX, 20 U.S.C. 1681-1688 . . . . . . . . . . . . . . . . . . . . . .passim 20 U.S.C. 1681 . . . . . . . . . . . . . . . . . . . . . .. . . 18 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . .passim 29 U.S.C. 794a . . . . . . . . . . . . . . . . . . . . . . . . . . 14 29 U.S.C. 794a(a)(2) . . . . . . . . . . . . . . . .. . . . . . . . 14 Rehabilitation Act Amendments of 1986, 100 Stat. 1845 . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Safety Appliance Act of 1893, ch. 196, 27 Stat. 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. 1981a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 26 28 C.F.R. Pt. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 28 C.F.R. 35.130 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 28 C.F.R. 35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . 13 28 C.F.R. 35.150(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 13 28 C.F.R. 35.160-35.162 . . . . . . . . . . . . . . . . . . . . . . 13, 30 28 C.F.R. 35.164 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 28 C.F.R. 35.174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 C.F.R. Pt. 35, App. A (1996). . . . . . . . . . . . . . . . . . . 1, 13 - v - REGULATIONS (continued): PAGE 28 C.F.R. 39.130 . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 28 C.F.R. 41.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . .. . . . .21, 22 H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . .21, 22 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . .. . . . . . . . . . . .22 135 Cong. Rec. 19,840 (1989) . . . . . . . . . . . . . . . . . . . . . .23 135 Cong. Rec. 19,855 (1989) . . . . . .. . . . . . . . . . . . . . . . .23 MISCELLANEOUS: The Americans with Disabilities Act: Title II Technical Assistance Manual (Nov. 1993 & 1994 Supp.) . . . . . . . . . . . . . . . . . . . . . . 4, 5, 11, 30 S II-7.3100 . . . . . . . . . . . . . . . . . . . . .. . . . . 11, 30 - vi - IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 96-17350 WILLIAM D. FERGUSON; ELIZABETH T. FERGUSON; BONNIE P. TUCKER; JAY T. FRANKEL; BARBARA JEAN COFFMAN, Plaintiffs-Appellants v. CITY OF PHOENIX; LYLE RODABOUGH; JANE DOE RODABOUGH, Defendants-Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES This case concerns the availability of compensatory damages under Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. 12131-12165 (Title II), and under Section 504 of the Rehabilitation Act, 29 U.S.C. 794 (S 504). The Department of Justice has authority to bring actions to enforce Title II and S 504. See 42 U.S.C. 12133; 28 C.F.R. 35.174; 28 C.F.R. Pt. 35. App. A at 480 (1996). This Court's decision may therefore affect the remedies available to the Attorney General in actions under Title II and S 504. It also will affect the ability of private plaintiffs to obtain complete relief in Title II and S 504 cases. The United States has a strong interest in assuring that - 2 - individuals will serve as "private attorneys general" to supplement its enforcement efforts. See Cannon v. University of Chicago, 441 U.S. 677, 708 n.42 (1979); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam). STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. 1331. The court entered final judgment on October 18, 1996. Plaintiffs filed a timely notice of appeal on November 14, 1996. This Court has jurisdiction under 28 U.S.C. 1291. ISSUES PRESENTED The United States will address the following issues: 1. Whether a private plaintiff may recover compensatory damages under Title II and under S 504, without proof of intentional discrimination. 2. Whether plaintiffs seeking compensatory damages under Title II or under S 504 are entitled to a jury trial. These are legal questions subject to de novo review. See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1350 (9th Cir. 1987) (damages), modified on other grounds, 866 F.2d 318 (9th Cir.), cert. denied, 493 U.S. 871 (1989); KLK, Inc. v. Department of Interior, 35 F.3d 454, 455 (9th Cir. 1994) (jury trial). -3- STATEMENT OF THE CASE A. Procedural History Plaintiffs, who are deaf or hard of hearing, use telecommunications devices for the deaf (TDDs) to communicate by telephone. Ferguson v. City of Phoenix, 931 F. Supp. 688, 691 (D. Ariz. 1996). They filed three separate lawsuits against the City of Phoenix under Title II, S 504, and 42 U.S.C. 1983, alleging that the City operated its 9-1-1 emergency service in a way that discriminated against individuals who are deaf or hard of hearing. 931 F. Supp. at 691. Some of the plaintiffs also named Lyle Rodabough,1 Commander of the Phoenix Police Department's Communications Bureau, as a defendant in his individual capacity (Frankel CR 1 at 3-4; Tucker CR 1 at 2- 3).2 Plaintiffs claimed that the City's 9-1-1 emergency system did not respond adequately, or at all, to their TDD calls. Ferguson, 931 F. Supp. at 691-693. They sought compensatory and punitive damages, as well as injunctive relief, and demanded a jury trial (CR 1 at 11-12; Frankel CR 1 at 16-17; Tucker CR 1 at 16-17). The district court consolidated the three lawsuits (CR 63, 126). _________________ 1 Plaintiffs also named Rodabough's wife as a defendant to comply with Arizona's community property laws (Frankel CR 1 at 3- 4; Tucker CR 1 at 2-3). 2 "CR " refers to the entry number on the district court docket sheet in Ferguson's lawsuit. "Frankel CR " and "Tucker CR " refer to the district court docket entries in Frankel's and Tucker's lawsuits, respectively. -4- The City filed a motion for summary judgment (CR 13). The court denied the motion with regard to liability, but granted the motion, in part, on the question of damages. Ferguson, 931 F. Supp. at 691, 699. The district judge concluded that Phoenix's 9-1-1 system did not comply with the Department of Justice's ADA regulations (as construed by the Department in its "Title II Technical Assistance Manual"), and that the Department's interpretation of the ADA was reasonable. Id. at 694-697. The City's 9-1-1 procedures required a TDD caller to emit an audible tone by tapping the space bar on his or her machine, so that the operator or the automatic diverter system could identify the call as originating from a TDD. Id. at 692. The Technical Assistance Manual expressly prohibits municipalities from imposing such a "space bar requirement." Id. at 694. Nonetheless, the court left open the question whether the City might avoid liability by showing that compliance with the Justice Department regulations would create a fundamental alteration in the 9-1-1 system or impose an undue financial or administrative burden Id. at 696. With regard to the damages issues, the court held that plaintiffs could not recover compensatory or punitive damages under Title II or Section 504 unless they could show that the City's actions were intentionally discriminatory. Id. at 697- 698. The court suggested that proof of intentional discrimination required, at a minimum, a showing that defendants acted with "deliberate indifference" to the plaintiffs' rights -5- under Title II and S 504. Pending further discovery, the judge deferred deciding whether plaintiffs met that burden. Ibid. The court granted partial summary judgment to the City, however, on plaintiffs' S 1983 claims, concluding that municipalities are immune from punitive damages under that statute. Id. at 698-699. The court subsequently entered a consent order approving the parties' settlement of the remaining liability issues (CR 188). The court joined the United States as a party for purposes of the consent order only (CR 188 at 3). The consent order required the City to eliminate the requirement that TDD callers tap the space bar on their machines when contacting the 9-1-1 system, and mandated other changes in the system to make it responsive to TDD calls (CR 188). The consent decree did not resolve the question of damages. The court then granted the defendants' motions for summary judgment on the damages issue, and denied plaintiffs' cross- motion (CR 234 at 19-20). The court again held that compensatory damages were unavailable under Title II and S 504 in the absence of an intentional violation of those statutes (CR 234 at 3), and concluded that no such intentional conduct occurred in this case (CR 234 at 6-18). Although the City had unlawfully imposed a "space bar requirement" in violation of the Department of Justice's Technical Assistance Manual, the court concluded that the defendants neither knew that the Manual prohibited a space bar requirement nor realized that the Manual had "the presumptive - 6 - effect of law" (CR 234 at 18). The court found that defendants acted "in good faith" in attempting to upgrade their 9-1-1 service to make it responsive to TDD callers (ibid.). The court also held that defendant Rodabough was entitled to qualified immunity (CR 234 at 18-19). Having granted summary judgment to defendants on the damages claims, the court did not decide whether plaintiffs who seek compensatory damages under Section 504 or Title II have a right to a jury trial. The court entered final judgment on October 18, 1996 (CR 235). B. Facts The plaintiffs are residents of Phoenix, Arizona, and are deaf or hard of hearing. Because of their disabilities, they use TDDs to communicate by telephone. Ferguson, 931 F. Supp. at 691. Use of a TDD is similar to conversing by electronic mail. A TDD caller types in a message, which is then transmitted over the telephone line and displayed on the recipient's TDD screen. Some, but not all, TDDs emit an audible tone when the user taps the space bar on the machine, and this tone signals properly trained hearing individuals that the call is from a TDD. Id. at 691, 695. The custom among most TDD users is to dial a telephone number and wait for the person receiving the call to type a greeting and "GA" (for "go ahead"). Under customary practice, the TDD user does not tap the space bar before receiving the "go ahead" message. Id. at 691. - 7 - If a 9-1-1 system receives a call from a TDD that emits no tone, the call will appear to an operator as if it were "a silent open line" (CR 98, Dunne Decl. Paragraph 9). Prior to September 1995, Phoenix's official policy required 9-1-1 operators to treat such "silent" calls as "9-1-1 hangups." Ferguson, 931 F. Supp. at 692. Operators would disconnect these silent calls and attempt to call back on a voice telephone, and, if there was no answer, dispatch a police officer to the caller's residence on a "priority two" call (CR 96 at 3-4; CR 93 at 4-5, 11-12). In September 1995, the City implemented a new procedure whereby a 9- 1-1 operator who received a silent call would type a code and automatically send a message instructing a potential TDD caller to tap the space bar on the TDD. Ferguson, 931 F. Supp. at 692. If there was still silence on the line, the operator would disconnect and try to dial the caller back (CR 96 at 4). At all times relevant to the plaintiffs' lawsuits, the City's 9-1-1 system placed the responsibility on a TDD caller to tap the space bar on his or her machine to emit an audible tone that would alert the operator or the automatic diverter that the call was from a TDD (CR 188 at 2). If the TDD emitted this audible tone, and the tone was properly recognized, the system would try to transfer the call to an operator with a TDD. No such transfer would occur if the TDD caller failed to initiate the TDD audible tone. Ferguson, 931 F. Supp. at 691-692. - 8 - During the early morning hours of August 14, 1994, plaintiff William Ferguson tried to use his TDD to call 9-1-1 to report suspicious individuals outside his home. Id. at 692. The 9-1-1 operator heard no audible response and failed to recognize that the call was originating from a TDD. The operator hung up and dialed the number from which the call had come. Ferguson's line was busy, however, because he was trying to place a second call to 9-1-1. Id. at 692. The operator who answered the second call heard an audible tone that she recognized as a TDD signal, and transferred the call to a different operator, but the call was prematurely disconnected. Id. at 692. Without communicating with Ferguson, the operator dispatched the police to his home on a "priority two" call. Ferguson's actual circumstances, however, warranted a "priority one" call (i.e., a more urgent response by police), but Ferguson was unable to communicate the true nature of the emergency because of the disconnections. While the police were en route, Ferguson called 9-1-1 twice more, but both calls were disconnected. The suspicious individuals outside Ferguson's house stole his truck before the police arrived. Id. at 692; CR 1 at 4-5. Ferguson experienced difficulties in contacting 9-1-1 on at least two other occasions. He called 9-1-1 on January 30, 1995, to report vandalism on his property. His calls were disconnected three times because the operators apparently failed to recognize them as TDD calls. It was only on his fourth attempt that - 9 - Ferguson was connected to a 9-1-1 operator with TDD equipment. Id. at 692. On August 28, 1995, Ferguson again called 9-1-1 after observing a prowler lurking behind his neighbor's garage. The 9-1-1 operators twice disconnected his calls. On his third attempt, he was connected to a TDD operator but experienced delays of several minutes in communicating with the operator. Id. at 693. On November 25, 1995, plaintiff Bonnie Tucker used her TDD to call 9-1-1 in order to test the system. She did this because her father, who is also deaf, had unsuccessfully tried to reach 9-1-1 earlier that evening when he believed he was experiencing a medical emergency. Tucker's first call went unrecognized as a TDD call. On her second attempt, she communicated the purpose of her call to the 9-1-1 operator, who suggested that Tucker hang up and try again to test the system. Tucker then placed three more calls to 9-1-1. The first two received no response after 2.5 and 3 minutes on the line, respectively. The 9-1-1 system finally recognized her TDD call on the third attempt. Id. at 693 On December 30, 1995, plaintiff Jay Frankel called 9-1-1 to report a theft from the residence that he shared with plaintiff Barbara Coffman. Id. at 693. Frankel placed five calls, each of which was disconnected. Id. at 693. Both before and after the incidents described above, the City received notice that individuals who are deaf or hard of hearing had experienced problems contacting the 9-1-1 system on - 10 - their TDDs. A representative of the Arizona Council for the Hearing Impaired contacted the Phoenix 9-1-1 center on more than one occasion prior to August 1994 to report problems with the system's handling of TDD calls (CR 234 at 16). Ferguson himself complained to the City about its 9-1-1 services immediately following the incident on August 14, 1994, and on a number of other occasions. Ferguson, 931 F. Supp. at 693. In a letter to Ferguson on September 1, 1994, defendant Rodabough asserted that the 9-1-1 operators had acted properly in handling his 9-1-1 calls, but nonetheless expressed dissatisfaction with the quality of service available to individuals who are deaf or hard of hearing (CR 234 at 10). In addition, Phoenix officials were advised no later than September 13, 1994, that tapping the space bar on a TDD could disconnect a 9-1-1 call (CR 112, Exh. Y at 20 (minutes of meeting)). In addition, Phoenix received notice that Title II of the ADA required municipalities to make their 9-1-1 emergency services accessible to TDD callers. On August 3, 1994 -- before any of the incidents involving the plaintiffs -- the Department of Justice sent a letter to Phoenix's mayor explaining the ADA's requirements with regard to 9-1-1 services, and warning the City that failure to make such services accessible to TDD users could imperil individuals who are deaf or hard of hearing. The letter urged the City to review its 9-1-1 system to ensure compliance with the ADA (CR 98, Mather Decl. PP 4-5 & Exh. 2; CR 234 at 9). - 11 - See Ferguson, 931 F. Supp. at 697. The letter also notified Phoenix of a settlement agreement that the United States had reached with the City of Los Angeles concerning its handling of 9-1-1 calls by TDD users (CR 98, Mather Decl. P 4 & Exh. 2). That agreement, which was attached to the letter, required Los Angeles to treat "silent open lines" as potential TDD calls and respond accordingly (CR 98, Mather Decl. P 3 & Exh. 1 P 11).3 On November 15, 1995 -- prior to plaintiff Tucker's unsuccessful attempts to contact 9-1-1 -- Tucker advised one of the City's attorneys that the Justice Department's Technical Assistance Manual prohibited municipalities from imposing a space-bar requirement for TDD users who call 9-1-1 (CR 220 at Exh. JJ (Tucker affidavit)). In addition, a training packet approved by the Department of Justice was sent to Phoenix's mayor on April 21, 1995, advising the City that silent 9-1-1 calls should be considered potential TDD calls (CR 234 at 12). ___________________ 3 The district court stated that the letter "made no mention of the no space bar requirement." Ferguson, 931 F. Supp. at 697. Apparently, the court assumed that the requirement for treating "silent open lines" as potential TDD calls is significantly different from the prohibition against space bar requirements. In fact, they are basically the same. See The Americans with Disabilities Act: Title II Technical Assistance Manual, S II- 7.3100 at 42 (Nov. 1993). - 12 - INTRODUCTION AND SUMMARY OF ARGUMENT This case involves Title II of the ADA and S 504 of the Rehabilitation Act, which broadly prohibit discrimination against qualified individuals with disabilities. 42 U.S.C. 12132; 29 U.S.C. 794. There are three distinct forms of discrimination. The first two varieties are commonly recognized under most civil rights statutes: (1) intentional discrimination, also commonly known as "disparate treatment," which involves treating a person less favorably than others because of his or her race, gender, disability or some other protected status, and (2) "disparate impact" discrimination, which involves use of a facially neutral rule or practice that has a disproportionate adverse effect on individuals in a protected class, as compared to other persons. See Wards Cove Packing Co. v. Azonio, 490 U.S. 642, 645-646 (1989) (recognizing both theories in race discrimination cases under Title VII of the Civil Rights Act of 1964). Like many other civil rights statutes, Title II and S 504 prohibit both disparate treatment and disparate impact discrimination. See generally 28 C.F.R. 35.130 (Title II regulations); 28 C.F.R. 39.130 (S 504 regulations); 28 C.F.R. 41.51 (same). But unlike most other civil rights statutes, Title II and S 504 also bar a third, distinct type of discrimination: the failure to make "reasonable modifications" or "reasonable accommodations" in policies, practices, or procedures in order to ensure effective and meaningful access for individuals with - 13 - disabilities. 28 C.F.R. 35.130(b)(7) (Title II); School Bd. of Nassau County v. Arline, 480 U.S. 273, 289 n.19 (1987) (S 504). Section 504 and Title II impose an "affirmative obligation" to make such accommodations for persons with disabilities, unless such modifications would result in a fundamental alteration in the nature of the service, program or activity or in undue financial and administrative burdens. Arline, 480 U.S. at 287 n.17, 289 n.19; 28 C.F.R. 35.150(a) (3) & 35.164. This affirmative duty of reasonable modification requires municipalities to ensure that persons who are deaf or hard of hearing can communicate directly and effectively with 9-1-1 emergency systems. 28 C.F.R. 35.160-35.162; 28 C.F.R. Pt. 35, App. A at 479 (1996). In challenging the operation of Phoenix's 9-1-1 service, the plaintiffs in this case not only alleged intentional discrimination, but also claimed that the City had failed to meet its affirmative duty to make reasonable accommodations to give them effective access to the 9-1-1 service (CR 219 at 9-10). Private plaintiffs who allege a violation of the "reasonable accommodations" or "reasonable modifications" requirements of S 504 or Title II are entitled to seek compensatory damages and a jury trial, regardless of the defendant's motivation. This Court has already recognized that compensatory damages are available under S 504 for plaintiffs who allege a failure to make reasonable accommodations. The plaintiffs in the present case - 14 - have based their claims, in part, on the City's failure to make such accommodations. Allowing plaintiffs to seek compensatory damages under S 504 and Title II is consistent with the well- established presumption that damages are available to remedy violations of federal statutes unless Congress has clearly indicated otherwise. Congress has not expressly limited the relief available under Title II or S 504, but instead, has indicated that private plaintiffs should have a "full panoply of remedies" under those statutes. Since compensatory damages are available under Title II and S 504 (regardless of whether the defendant acted with discriminatory intent), the Seventh Amendment provides a right to a jury trial whenever a plaintiff seeks such relief. ARGUMENT I PLAINTIFFS MAY SEEK COMPENSATORY DAMAGES FOR VIOLATIONS OF THE "REASONABLE MODIFICATIONS" AND "REASONABLE ACCOMMODATIONS" REQUIREMENTS OF TITLE II AND S 504 WITHOUT ALLEGING INTENTIONAL DISCRIMINATION The remedies available for violations of Title II of the ADA are coextensive with those available under S 504. Title II states that plaintiffs shall have the "remedies, procedures, and rights" set forth in 29 U.S.C. 794a (which governs the relief available under S 504). 42 U.S.C. 12133. In turn, 29 U.S.C. 794a(a) (2) gives S 504 plaintiffs the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964," 42 - 15 - U.S.C. 2000d et seq. (Title VI). Although damages are available under Title VI, see 42 U.S.C. 2000d-7(a)(2),4/ the statutory language is silent as to whether an award of damages requires proof of discriminatory intent. See ibid.; 42 U.S.C. 2000d-1. Although the statutory language provides no definitive answers, this Court's S 504 caselaw, and well as the reasoning of Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992), makes clear that compensatory damages are available under both S 504 and Title II, regardless of whether the defendant engaged in intentional discrimination. A. This Court Allows Claims For Compensatory Damages Under S 504 In Failure-To-Accommodate Cases This Court has recognized that compensatory damages are available under S 504 where, as here, the plaintiffs allege a failure to make reasonable accommodations to meet the special needs of persons with disabilities. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1106-1111, 1116 (9th Cir. 1987). In Zolin, the plaintiffs alleged that defendants violated their duty of reasonable accommodation under S 504 by refusing to provide interpreters to enable persons who were deaf to serve as jurors. Id. at 1106, 1108, 1109 n.7. In holding that plaintiffs had an action for damages under S 504 (id. at 1116), the Zolin Court emphasized that "[i]f a person suffers discrimination in violation of section 504, he may ____________________ 4/ See discussion pp. 19-20, infra. - 16 - collect appropriate damages." id. at 1111, and further explained that "plaintiffs suing under section 504 may pursue the full panoply of remedies, including equitable relief and monetary damages." Id. at 1107. See also J.L. v. Social Security Admin., 971 F.2d 260, 262, 264, 268, 272 (9th Cir. 1992) (suggesting that compensatory damages would be available in S 504 action challenging defendant's failure to accommodate needs of mentally disabled applicants);5/ Bonner v. Lewis, 857 F.2d 559, 560-561, 566 (9th Cir. 1988) (suggesting that prison inmate who was deaf may seek compensatory damages under S 504 for prison's alleged failure to accommodate his disability by providing sign language interpreters). 6/ ___________________ 5/ J.L. is no longer good law insofar as it allows recovery of damages in a S 504 action against the federal government. See Lane v. Pena, 116 S. Ct. 2092, 2096-2100 (1996). But nothing in Lane calls into question the availability of compensatory damages against non-federal defendants who fail to provide reasonable accommodations required by S 504. 6/ Other circuits have held that compensatory damages are available under S 504, without expressly limiting their holdings to cases alleging intentional discrimination. See, e.g., W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995); Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642, 644-645 (8th Cir. 1994). Cf. Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 825-826, 829-830 & n.9, 832-833 (4th Cir. 1994) (holding that damages were available in failure-to-accommodate case and stating that "'intentional discrimination' suffices to recover compensatory damages," without expressly deciding that intent is necessary). But see Wood v. President & Trustees of Spring Hill College, 978 F.2d 1214, 1219-1220 (11th Cir. 1992) (discriminatory intent required); Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 264 (5th Cir. 1984) (same). -17- This Court's decision in Zolin thus illustrates that compensatory damages are available under S 504, even in the absence of disparate treatment. And since proof of discriminatory intent is unnecessary for an award of damages under S 504, it is also unnecessary under Title II. See 42 U.S.C. 12133 (incorporating S 504 remedies into Title II). B. The Supreme Court's Franklin Decision Confirms That Compensatory Damages Are Available Under Title II And S 504 In The Absence Of Intentional Discrimination In Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992), the Supreme Court held that compensatory damages are available in actions brought to enforce Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1688 (Title IX). In finding a right to damages under Title IX, the Court relied on the "longstanding rule" that "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Franklin, 503 U.S. at 66, 70-71. Franklin recognized that damages are an "appropriate" form of relief for violations of law that cause compensable harm. Indeed, they are the presumptive form of relief, even if an injunction or other equitable remedies are available to the plaintiff. See id. at 75-76. Franklin's reasoning fully applies to S 504 and, derivatively, to Title II. Both S 504 and Title IX (the statute at issue in Franklin) were modeled on Title VI of the Civil - 18 - Rights Act of 1964. See Cannon v. University of Chicago, 441 U.S. 677, 694 (1979); Arline, 480 U.S. at 278 n.2.7 Given the substantial similarities between Title IX and S 504, the Franklin presumption in favor of compensatory damages governs the analysis under S 504.8 W.B. v. Mazula, 67 F.3d 484, 494 (3d Cir. 1995); Rodgers v. Magnet Cove Pub. Schs., 34 f.3d 642, 644-645 (8th Cir. 1994); Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152, 156-157 (11th Cir. 1994); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830-832 (4th Cir. 1994). As explained below, application of the Franklin presumption shows that compensatory damages are available under Title II and S 504, regardless of whether the defendant acted with discriminatory intent.9 _________________ 7 All three statutes prohibit discrimination in programs or activities receiving federal financial assistance. Title VI prohibits discrimination on the basis of race, color, or national origin. 42 U.S.C. 2000d. Title IX prohibits discrimination on the basis of sex in education programs and activities. 20 U.S.C. 1681. Section 504 prohibits discrimination on the basis of disability. 29 U.S.C. 794. 8 The Franklin presumption in favor of compensatory damages does not apply, however, in S 504 actions against the federal government because of the special rules governing waiver of sovereign immunity. Lane, 116 S. Ct. at 2098-2099. But the presumption does apply in S 504 actions against non-federal defendants. See note 5, supra. 9 The United States has made this argument in appeals now pending in two other circuits. See Tyler v. City of Manhattan, No. 94-3344 (10th Cir., argued Nov. 15, 1995), and in Burkhart v. WMATA, No. 96-7163 (D.C. Cir., argued Feb. 21, 1997). - 19 - 1. Congress did not rebut the presumption in favor of compensatory damages Under Franklin, compensatory damages are an available remedy for a violation of a federal statute "unless Congress has expressly indicated otherwise." 503 U.S. at 66. Neither the statutory language nor the legislative history of Title II or S 504 reflects any intent by Congress to restrict the availability of compensatory damages by requiring private plaintiffs to prove intentional discrimination to obtain such relief. Indeed, the legislative history suggests precisely the opposite. a. Statutory Language As with Title IX, nothing in the statutory language expressly indicates an intention to limit the relief available under Title II or S 504. To the contrary, Congress has affirmatively indicated that it intended compensatory damages to be available under both statutes. In the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, Congress abrogated states' Eleventh Amendment immunity against suits arising under various statutes, including S 504, Title VI, and Title IX. See 42 U.S.C. 2000d-7(a)(1). The 1986 amendments made explicit that "remedies both at law and in equity" would be available against states under these statutes to the same extent as against other defendants. 42 U.S.C. 2000d-7(a)(2).10 The Franklin Court _______________________ 10 The ADA itself contains a virtually identical provision. See 42 U.S.C. 12202. - 20 - relied on this provision in finding compensatory damages available under Title IX. 503 U.S. at 72-73; see also id. at 78 (Scalia, J., concurring in the judgment) (reading the 1986 amendments as "an implicit acknowledgment that damages are available"). Because the 1986 amendments reached S 504 in the same manner as Title IX, the Franklin Court's reading of those amendments applies equally here. See Pandazides, 13 F.3d at 832. By authorizing damage awards under S 504 without expressly imposing restrictions on such relief, Congress has reinforced the presumption that compensatory damages are available for any violation of the statute, regardless of whether the plaintiff proves intentional discrimination. If Congress had intended to limit the relief available to private plaintiffs under Title II, we believe it would have done so expressly, as it did in Title III of the ADA, 42 U.S.C. 12181- 12189. Although that provision expressly authorizes the Attorney General to seek compensatory damages on behalf of an aggrieved person, 42 U.S.C. 12188(b)(2)(3), it limits the relief available in private actions under Title III by adopting the "remedies and procedures" of 42 U.S.C. 2000a-3(a) (Title II of the Civil Rights Act of 1964, which deals with public accommodations). 42 U.S.C. 12188(a)(1). Since S 2000a-3(a) authorizes only "preventive relief," such as an injunction or restraining order, see Newman, 390 U.S. at 402, damages are also unavailable in private actions under Title III. Unlike Title III, however, Title II relies on in private actions under Title 17T-by adopting the "remedies and procedures" of 42 U.S.C. 2000a-3 (a) (Title II of the Civil Rights Act of 1964, which deals with public accommodations). 42 U.S.C. 12"83(a)(1). Since # 2000a-3(a) authorizes only "preventive relief, 11 such as an injunction or restraining order, see Newman, 390 U.S. at 402, damages are also unavailable in private actions under Title III. Unlike Title III, however, Title II relies on -21- the remedies of S 504 and Title VI, which do allow private plaintiffs to seek compensatory damages for any violation. b. Legislative History Nor does the legislative history reveal any congressional intent to require proof of intentional discrimination to recover compensatory damages under Title II. Rather, it suggests precisely the opposite. In discussing Title II's remedial provision, the House Education and Labor Committee report on the ADA stated that "[a]s with section 504, there is also a private right of action for persons with disabilities, which includes the full panoply of remedies." H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 98 (1990) (emphasis added). The House Judiciary Committee report similarly explained its understanding of the remedies that were available under S 504 and that would therefore be available under Title II: "The Rehabilitation Act provides a private right of action, with a full panoply of remedies available, as well as attorney's fees." H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 52 (1990). As authority for that statement, the committee cited Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982). See H.R. Rep. No. 485, Pt. 3, supra, at 52 n.62. Miener held that "damages are available under S 504 as a necessary remedy for discrimination." 673 F.2d at 979. By citing Miener and stating that Title II would afford plaintiffs a "full panoply of remedies," these committees underscored Congress's embrace of the -22- traditional presumption that all appropriate remedies are available for violations of a federal statute. The "full panoply" language used to describe Title II remedies stands in sharp contrast to the Committee reports' explanation of the relief available to private litigants under Title III of the ADA. Those reports make clear that private plaintiffs were limited to seeking injunctive relief under Title III, even though the Attorney General could seek monetary damages and civil penalties under the same statute. See H.R. Rep. No. 485, Pt. 3, supra, at 66-68; H.R. Rep. No. 485, Pt. 2, supra, at 24, 126-127; S. Rep. No. 116, 101st Cong., 1st Sess. 76-77 (1989). These discussions of Title III remedies illustrate that Congress knew how to limit the relief available in private actions under the ADA when it wanted to do so. The floor debate confirms that Congress intended to make damages available to private litigants under Title II, but not under other provisions of the ADA.11 For example, Senator Harkin, the chief sponsor of the legislation in the Senate, emphasized that damages were available to private litigants under Title II: It is true that the employment provisions of title I make available the rights and remedies of title VII of the 1964 Civil Rights Act, which provides for backpay and equitable relief. Also under the public accommodations provisions of __________________ 11 Congress later enacted legislation, however, that expanded the relief available under Title I to include compensatory damages. See 42 U.S.C. 1981a(a)(2). -23- title III, the bill expressly limits relief to equitable remedies. However, title II of the act, covering public services, contains no such limitation. Title II of the bill makes available the rights and remedies also available under section 505 of the Rehabilitation Act, and damages remedies are available under that provision enforcing section 504 of the Rehabilitation Act and, therefore, also under title II of this bill. 135 Cong. Rec. 19,855 (1989) (emphasis added). Senator Kennedy, an original sponsor of the legislation, displayed a similar understanding of Title II. Id. at 19,840 (no damages in private actions under ADA, "except those involving public services, as under section 504"). Although this legislative history does not expressly state that compensatory damages are available in the absence of intentional discrimination, it supports -- rather than rebuts -- the Franklin rule that a full panoply of remedies is available for any violation of Title II. In sum, neither the statutory language nor the legislative history reveals "any legislative intent to abandon the traditional presumption in favor of all available remedies." Franklin, 503 U.S. at 72. Plaintiffs in the present case must therefore be allowed to seek such relief for any violation of the statute, regardless of whether Phoenix acted with discriminatory intent. 2. The Franklin presumption applies under Title II and S 504 regardless of whether the plaintiff alleges intentional discrimination Instead of examining congressional intent, however, the district court apparently assumed that the Franklin presumption - 24 - did not apply in the absence of intentional discrimination. That assumption is based on a misunderstanding of Franklin. Franklin's presumption applies by its terms to any "cognizable cause of action brought pursuant to a federal statute." 503 U.S. at 71; see also id. at 66 (noting that Court had previously upheld "federal courts' power to award appropriate relief so long as a cause of action existed under the Constitution or laws of the United States"); id. at 69 ("if a right of action exists to enforce a federal right and Congress is silent on the question of remedies, a federal court may order any appropriate relief"). The presumption is not limited to causes of action that require a showing of unlawful intent. Franklin made this point clear by relying on Texas & Pacific Rv. Co. v. Rigsby, 241 U.S. 33 (1916). See Franklin, 503 U.S. at 67. In Rigsby, the Court held that damages were an available remedy for violations of the federal Safety Appliance Act of 1893, even though the Act imposed strict liability and thus did not require a showing of unlawful intent. See Rigsby, 241 U.S. at 39, 43 (Act "imposes an absolute and unqualified duty" to comply with its mandates). Franklin did not hold that discriminatory intent was a prerequisite for recovery of damages under Title IX, or that the usual presumption would not apply in the absence of such intent. To be sure, the Franklin Court did suggest a distinction between "intentional" and "unintentional" discrimination, in rejecting - 25 - the argument that the normal presumption in favor of compensatory damages "should not apply because Title IX was enacted pursuant to Congress' Spending Clause power." Franklin, 503 U.S. at 74 But the Court did not endorse that distinction. It simply noted that any limitation on remedies that might exist under Spending Clause statutes would not apply where, as in Franklin, the violation of federal law was intentional. See id. at 74-75. As the Court explained, the argument for "not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. *** This notice problem does not arise in a case such as this, in which intentional discrimination is alleged." Ibid., citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 28-29 (1981).12 Because the _____________________ 11/ Nor did Pennhurst hold that damages are unavailable for unintentional violations of Spending Clause legislation. Although Pennhurst contains dictum suggesting that damages may never be available for violations of Spending Clause legislation, see 451 U.S. at 29-30, the Court's discussion in Pennhurst drew no distinction between intentional and unintentional violations. And Franklin makes clear that damages are available under Spending Clause legislation. See Franklin, 503 U.S. at 75 n.8 (assuming Title IX was enacted pursuant to spending power). Two Justices have interpreted Pennhurst as creating a rebuttable "presumption that only limited injunctive relief should be granted as a remedy for unintended violations of statutes passed pursuant to the spending power." Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582, 602 (1983) (opinion of White, J., joined by Rehnquist, J.). That reading of Pennhurst, however, has never garnered the support of a majority of the Court and, in fact, was specifically repudiated by five justices in Guardians. See id. at 612 (O'Connor, J., concurring in (continued...) - 26 - plaintiff in Franklin alleged intentional discrimination, the Court had no need to address the question whether damages would be available for unintentional violations of Title IX. Moreover, requiring plaintiffs to prove that Phoenix intentionally violated federal law would be inconsistent with the Supreme Court's reasoning in Owen v. City of Independence, 445 U.S. 622 (1980). There, the Supreme Court held that a municipality was not immune from damages under 42 U.S.C. 1983 for good faith violations of federal law. 445 U.S. at 650-657. The lower court had held that a municipality enjoyed immunity under S 1983 because it could not reasonably have known prior to the lawsuit that its conduct violated the Constitution. Owen, 445 U.S. at 634. In rejecting that argument, the Supreme Court emphasized the long-standing principle that a municipality should be required to remedy the damage caused by its unlawful actions, even if City officials did not realize at the time that they were violating the law. See id. at 641, quoting Thayer v. Boston, 36 Mass. 511, 515-516 (1837). As the Owen Court observed: "It _______________________ 12 (...continued) judgment) (endorsing Part I of Justice Stevens' dissent, which rejected Justice White's reading of Pennhurst); id. at 636-639 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting); id. at 624-633 (Marshall, J., dissenting). As the Supreme Court has explained, "[a] majority of the Court agreed [in Guardians] that retroactive relief is available to private plaintiffs for all discrimination, whether intentional or unintentional, that is actionable under Title VI." Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 n.9 (1984): see also Franklin, 503 U.S. at 70 (quoting this passage from Darrone). - 27 - hardly seems unjust to require a municipal defendant which has violated a citizen's *** rights to compensate him for the injury suffered thereby. *** Elemental notions of fairness dictate that one who causes a loss should bear the loss." Id. at 654. Even when a court interprets a statute in a way that "could not have been foreseen by municipal officials, it is fairer" to shift any monetary loss caused by the statutory violation to the municipality, rather than "to allow [the financial] impact to be felt solely by those whose rights, albeit newly recognized, have been violated." Id. at 655. But even if compensatory damages were unavailable for "unintentional" violations of Spending Clause legislation, there are two reasons why such damages would still be appropriate for the violations alleged in this case: First, the statutes at issue here are not based solely on Congress's Spending Clause powers. Cf. Franklin, 503 U.S. at 75 n.8. Title II is not Spending Clause legislation. It applies to public entities regardless of whether they receive federal funding. In enacting the ADA, Congress made clear that it was exercising its powers under the Commerce Clause and the Fourteenth Amendment. See 42 U.S.C. 12101(b) (4). Nor was S 504 enacted solely under the spending power. It prohibits discrimination and thus is a proper exercise of Congress's authority under the Fourteenth Amendment, at least to the extent it applies to governmental entities. See Welch v. Texas Dep't of - 28 - Highways & Pub. Transp., 483 U.S. 468, 472 n. 2 (1987) ("The Rehabilitation Act was passed pursuant to S 5 of the Fourteenth Amendment.").13 Since Congress had the power to enact Title II and S 504 under the Fourteenth Amendment, the usual presumption in favor of compensatory damages should apply here, even assuming, arguendo, that special restrictions on relief are justified under legislation that rests solely on Congress's spending powers. Second, the conduct that plaintiffs have challenged in this lawsuit cannot be characterized as "unintentional" in the sense that the Supreme Court used that term in Franklin and earlier cases. Justice White's opinion in Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983), illustrates this point. In a two-justice opinion, Justice White argued that "intentional" and "unintentional" discrimination should be treated differently for purposes of determining whether compensatory relief is available under Title VI. Id. at 597-603.14 He used the term ________________________ 13 Likewise, Title VI -- from which Title II and S 504 derive their remedies -- is a proper exercise of Congress's Fourteenth Amendment powers, and thus was not enacted solely under the Spending Clause. See United States v. Fordice, 505 U.S. 717, 732 n.7 (1992) (Title VI's protections coextensive with those of Fourteenth Amendment); Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.) (same); id. at 328, 340 (opinion of Brennan, White, Marshall, Blackmun, JJ.) (same). See also Cannon, 441 U.S. at 686-687 n.7 (quoting post- enactment legislative history suggesting that Title VI was designed to enforce the Fourteenth Amendment). 14 A majority of the Court has never accepted Justice White's (continued...) - 29 - "unintentional" to distinguish "disparate-impact" discrimination from disparate treatment, id. at 598 -- the only two theories of discrimination that could exist in a race discrimination case, such as Guardians, or a sex discrimination case, such as Franklin. See p. 12, supra. Although Justice White concluded that Title VI "reaches unintentional, disparate-impact discrimination, "Guardians, 463 U.S. at 593, he believed the defendant lacked sufficient notice of its obligations under Title VI to justify a monetary remedy for such discrimination. See id. at 598. In contrast to the disparate-impact challenge in Guardians, the plaintiffs' claims in the present case rely, in part, on the City's failure to make reasonable accommodations in its practices to meet the special needs of persons with disabilities. See p. 13, supra. Such a failure to accommodate is distinct from the type of disparate-impact discrimination at issue in Guardians. See Prewitt v. United States Postal Serv., 662 F.2d 292, 305 & n.19, 306-309 (5th Cir. 1981) (noting distinctions between disparate treatment, disparate impact, and failure to accommodate through modification of barriers). Moreover, it certainly cannot be said that defendants in this case did not have sufficient notice of their obligations ____________________ 14 (...continued) attempt to limit the relief available for "unintentional" violations of federal legislation. See note 12, supra. - 30 - under Title II and S 504. The Department of Justice has promulgated extensive regulations under Title II that explain the duty of state and local governments to accommodate persons with disabilities. See 28 C.F.R. Pt. 35. These regulations specifically address the obligation to accommodate individuals who are deaf or hard of hearing so that they can directly and effectively communicate with 9-1-1 systems. See 28 C.F.R. 35.160-35.162. Moreover, the Department has issued an interpretation of its own regulations in The Americans with Disabilities Act: Title II Technical Assistance Manual (Nov. 1993 & 1994 Supp.), which expressly prohibits the space-bar requirement that Phoenix unlawfully imposed on TDD callers to the 9-1-1 system. See id. at II-7.3100. These regulations (when read in conjunction with the Technical Assistance Manual) explain a defendant's obligations with a high degree of specificity. ILLEGIBLE Moreover, in the present case, the City received specific notice prior to the filing of these lawsuits that persons who are deaf or hard of hearing had experienced problems in contacting the 9-1-1 system on their TDD's and that 15 The district court found that Phoenix officials neither knew about the Technical Assistance Manual's prohibition on space-bar requirements nor realized that the Manual had the force of law (R. 234 at 18). The City's alleged ignorance of the law, however, does not change the fact that the ADA regulations put municipalities on notice that they must provide TDD users with direct and effective access to their 9-1-1 systems. See 28 C.F.R. 35.160-35.162. - 31 - the ADA required municipalities to make their 9-1-1 services fully accessible to TDD users. See pp. 9-11, supra. II PRIVATE PLAINTIFFS WHO SEEK COMPENSATORY DAMAGES UNDER TITLE II OR S 504 HAVE A RIGHT TO A JURY TRIAL Since compensatory damages are available in this case, plaintiffs have a right to a jury trial under the Seventh Amendment. See Curtis v. Loether, 415 U.S. 189, 192-197 (1974); Smith v. Barton, 914 F.2d 1330, 1337-1338 (9th Cir. 1990) (availability of compensatory damages under S 504 triggers right to jury trial), cert. denied, 501 U.S. 1217 (1991). - 32 - CONCLUSION This Court should reverse the district court's order granting summary judgment to the City of Phoenix on plaintiffs' claims for compensatory damages under Title II and S 504, and should remand for a jury trial on those claims.16 Respectfully submitted, JANET NAPOLITANO ISABELLE KATZ PINZLER United States Attorney Acting Assistant Attorney General RONALD R. GALLEGOS Assistant United States Attorney (Signature) JESSICA DUNSAY SILVER GREGORY B. FRIEL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3876 STATEMENT OF RELATED CASES The United States is unaware of any related cases pending in this Circuit. ________________ 16 The availability of compensatory damages under Title II and S 504 does not mean that every plaintiff will be entitled to such damages. As with any claim for compensatory damages, a plaintiff must prove that he or she suffered injury, and that the statutory violation caused that injury. CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the foregoing Brief For The United States As Amicus Curiae uses a monospaced typeface of no more that 10.5 characters per inch, is appropriately double-spaced, and contains 7,006 words. (Attorney) GREGORY B. FRIEL Attorney March 3, 1997 CERTIFICATE OF SERVICE I hereby certify that on March 3, 1997, two copies of the foregoing Brief for the United States as Amicus Curiae were served by first-class mail, postage prepaid, on each of the following counsel: Suzanne M. Dohrer, Esq. Dohrer & Watts 4041 North Central, Suite 850 Phoenix, Arizona 85012 Counsel for Plaintiffs-Appellants William R. Jones, Jr., Esq. Jones, Skelton & Hochuli 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Counsel for Defendants-Appellees (Signature) GREGORY B. FRIEL Attorney