Supreme Court, U.S.FI LED

0 9 12 5 9 Af’R 15 2010

No. ~t~=~=ICE OF THE CLERK

IN THE

JOHN LONBERG,

Vo

CITY OF RIVERSIDE,

Petitioner,

Respondent.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DON A. ERNSTTERRY J. KILPATRICKERNST & MATTISON, APC1020 Palm StreetSan Luis Obispo, CA 93401(805) 541-0300

JOHN J. BURSCHCounsel of Record

MATTHEW T. NELSONAARON D. LINDSTROMJULIE LAMWARNER NORCROSS & JUDD LLP900 Fifth Third Center111 Lyon Street N.W.Grand Rapids, MI 49503(616) 752-2000jbursch@wnj.com

Counsel for Petitioner

Blank Page

QUESTION PRESENTED

Whether the Americans with Disabilities Act’stransition-plan regulations, 28 C.F.R. § 35.150(d),are enforceable by pri.vate.right of action.

PARTIES TO THE PROCEEDING

The c~ption to the c~se contains the n~mes of ~11of the p~rties to the proceedings.

iii

TABLE OF CONTENTS

Page

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................2

INTRODUCTION ........................................................4

STATEMENT ..............................................................6

A. The ADA’s statutory and regulatoryscheme .............................................................6

B. John Lonberg is being denied access tostreets and sidewalks .....................................8

C. Petitioner’s suit and the DistrictCourt’s grant of an injunction againstthe City ...........................................................9

D. The Ninth Circuit’s decision ........................10

REASONS FOR GRANTING THE PETITION .......11

I. The Ninth Circuit’s decision furthers asplit among the federal circuits on anissue of recurring and substantialimportance ....................................................12

II. The Ninth Circuit’s decisioncontravenes the text of the Americanswith Disabilities Act and this Court’sdecision in ,Sandoval .....................................13

CONCLUSION ..........................................................22

iv

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Ability Ctr. of Greater Toledo v. City ofSandusky,385 F.3d 901 (6th Cir. 2004) ......................4, 10, 12

Alexander v. Sandoval,532 U.S. 275 (2001) ......................................passim

Barnes v. German,536 U.S. 181 (2002) ................................................6

Chafl~n v. Kan. State Fair Bd.,348 F.3d 850 (10th Cir. 2003) ..............4, 10, 12, 18

Chevron U.S.A. Inc. v. Natural Res. De£Council, Inc.,467 U.S. 837 (1984) ..............................................15

Iverson v. City of Boston,452 F.3d 94 (1st Cir. 2006) ........................4, 10, 12

Lonberg v. City o£Riverside,571 F.3d 846 (2009) ................................................1

Matthews v. Jefferson,29 F. Supp. 2d 525 (W.D. Ark. 1998. ....................9

MeCready v. Michigan State Bar,881 F. Supp. 300 (W.D. Mich. 1995 ......................9

Schonfeld v. City of Carlsbad,978 F. Supp. 1329 (S.D. Cal. 1997) .......................9

Tennessee v. Lane,541 U.S. 509 (2004) ................................................5

V

TABLE OF Al.rrHORITIES--Continued

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

29 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

28 C.F.R.

28 C.F.R.

28 C.F.R.

28 C.F.R.

28 C.F.R.

28 C.F.R.

28 C.F.R.

28 C.F.R.

P g (s)

Feders] Statutes§ 1254(1) ......................................................1

§ 1291 ..........................................................1

§ 1292(a) ......................................................1

§ 1331 ..........................................................1

§ 1343 ..........................................................1

§ 1367 ..........................................................1

§ 794a ................................................2, 3, 14

§ 12101(a) ....................................................6

§ 12132 ..............................................passim

§ 12133 ..............................................passim

§ 12134 ..............................................passim

Federal Regulations

§ 31.150 .....................................................11

§ 35.101 ...................................12, 14, 15, 17

§ 35.101 to § 35.189 ...................................14

§ 35.150 .............................................passim

§ 39.101 .......................................................6

§ 39.150 .............................................passim

Part 35 .......................................................14

part 39 .............................................3, 15, 19

vi

TABLE OF AUTHORITIES--Continued

Other Authorities

HR Rep No. 101-485(II), 101st Cong., 2dSess. 95-96 (1990), reprinted in 1990USCCAN 378 .........................................................6

PETITION FOR A WRIT OF CERTIORARI

Petitioner John Lonberg respectfully submitsthis petition for a writ of certiorari to review thejudgment of the United States Court of Appeals forthe Ninth Circuit.

OPINIONS BELOW

The court of appeals’ opinion is reported at 571F.3d 846. App. la. The order denying the petitionfor rehearing en banc is unreported. Id. 59a. Theorders of the United States District Court for theCentral District of California are also unreported.Id. 15a; id. 17a; id. 33a.

JURISDICTION

The district court had jurisdiction under 28U.S.C. § 1331 and § 1343 over petitioner’s federalcivil-rights claims, and the district court exercisedsupplemental jurisdiction pursuant to 28 U.S.C.§ 1367 over petitioner’s state-law claims. The courtof appeals had jurisdiction under 28 U.S.C. § 1291 toreview the district court’s final judgment, and under28 U.S.C. § 1292(a) to review its entry of a perma-nent injunction. The court of appeals filed its opin-ion on June 26, 2009, and it denied, on January 15,2010, petitioner’s timely filed petition for rehearingen banc. This Court’s jurisdiction rests on 28 U.S.C.§ 1254(1).

2

STATUTORY PROVISIONS INVOLVED

This case involves Section 202 of the Americanswith Disabilities Act (ADA), 42 U.S.C. § 12132 (here-inafter "§ 12132"), which prohibits public entitiesfrom discriminating against qualified individualswith a disability in the administration of servicesand programs. In its entirety, § 12132 states:

§ 12132. Discrimination. Subject to the pro-visions of this subchapter, no qualifiedindividual with a disability shall, by reasonof such disability, be excluded from partici-pation in or be denied the benefits of theservices, programs, or activities of a publicentity, or be subjected to discrimination byany such entity.

This case also involves Section 203 of the ADA,42 U.S.C. § 12133 (hereinafter "§ 12133"), which cre-ated a private cause of action to enforce the ADA byincorporating the remedies, procedures, and rights of29 U.S.C. § 794a. In its entirety, § 12133 states:

§ 12133. Enforcement. The remedies, proce-dures, and rights set forth in section 794a oftitle 29 shall be the remedies, procedures,and rights this subchapter provides to anyperson alleging discrimination on the basis ofdisability in violation of section 12132 of thistitle.

Finally, this case involves Section 204 of theADA, 42 U.S.C. §12134 (hereinafter "§12134"),which directed the Attorney General to promulgateregulations consistent with the transition planregulations for the Rehabilitation Act, 28 C.F.R.§ 39.150(d). In pertinent part, § 12134 states:

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§12134. Regulations. (a) In general. Notlater than 1 year after July 26, 1990, the At-torney General shall promulgate regulationsin an accessible format that implement thispart .... (b) Relation to other regulations.... With respect to "program accessibility,existing facilities", and "communications",such regulations shall be consistent with reg-ulations and analysis as in part 39 of title 28of the Code of Federal Regulations, applica-ble to federally conducted activities undersection 794 of title 29.

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INTRODUCTIONThis case involves a recognized and mature cir-

cuit split over an issue of substantial and recurringimportance--whether the ADA’s transition-planregulation, 28 C.F.R. § 35.150(d), is enforceable byprivate cause of action. The Ninth Circuit panelbelow agreed with the First and Sixth Circuits that§ 35.150(d) is not privately enforceable. App. 6a(citing Ability Ctr. of Greater Toledo v. City ofSandusky, 385 F.3d 901, 914 (6th Cir. 2004), andIverson v. City of Boston, 452 F.3d 94, 102 (lst Cir.2006)). In so holding, the panel reversed the district-court decision, which had followed the Tenth Circuitin concluding that § 35.150(d) is privately enforce-able. App. 6a (citing ChafI~n v. Kan. State Fair Bd.,348 F.3d 850, 858 (10th Cir. 2003)). The importanceof the question presented to advancing the goals ofthe ADA, and the uncertainty in the law that thesplit of authority creates, counsel strongly in favor ofgranting the petition.

When Congress creates a private fight of actionto enforce a statute, it necessarily intends to create aprivate right of action to enforce regulations imple-menting that statute. Alexander v. Sandoval, 532U.S. 275 (2001). Here, it is undisputed thatCongress created a private right of action to enforcethe ADA. 42 U.S.C. § 12133. So the only question iswhether § 35.150(d)’s transition-plan requirementsimplement the ADA. They plainly do. In enactingthe ADA, Congress expressly required the AttorneyGeneral to adopt transition-plan requirements simi-lar to those already in place for the RehabilitationAct. 42 U.S.C. § 12134. And that is precisely what§ 35.150(d) accomplishes. Moreover, as explainedfurther below, the transition-plan requirements arecritical to implementing the ADA. Without compre-

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hensive transition plans that identify barriers toaccess, public entities cannot proactively resolve ac-cessibility issues. The natural result is that millionsof people with disabilities will be unable to partici-pate in public services, programs, and activitiesunless they file suit, the very scenario that Congresssought to prevent when it enacted §§ 12132, 12133,and 12134. Accordingly, this Court should adopt theTenth Circuit’s holding that § 35.150(d) is privatelyenforceable and should reject the contrary holdingsof the First, Sixth, and Ninth Circuits.

The circuit split over the issue of § 35.150(d)’sprivate enforceability engenders uncertainty forpublic entities and results in differing treatment ofclaimants depending on the circuit where they live.In addition, the issue presented is one of immensepractical importance. As this Court noted inTennessee v. Lane, 541 U.S. 509, 511 (2004), thesheer volume of passive discrimination againstpersons with disabilities "was an appropriate subjectfor prophylactic legislation." And, as catalogued inthe amici cudae briefing below, there are numerouslawsuits currently pending against public entitiesjust on the narrow issue of sidewalk accessibility,lawsuits that would be wholly unnecessary if citiescreated and implemented transition plans as the lawrequires. The Ninth Circuit’s decision adverselyaffects the rights and lives of many and is directlycontradicted by the plain language of the ADA. ThisCourt should grant the petition and reverse.

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STATEMENTA. The ADA’s statutory and regulatory scheme

Congress enacted the ADA in 1990 to address the"serious and pervasive" isolation of and discrimina-tion against millions of Americans with a physical ormental disability. 42 U.S.C. § 12101(a). Congressspecifically tailored Title II of the ADA to address"passive" or "exclusionary" discrimination by localand state governments, particularly those govern-ments’ failure to modify structural barriers to dis-ability inclusion. See HR Rep No. 101-485(II), 101stCong., 2d Sess. 95-96 (1990), reprinted in 1990USCCAN 378.

Section 12132 prohibits public entities fromdiscriminating against qualified individuals with adisability in the administration of services andprograms. 42 U.S.C. § 12132. As the Ninth Circuitrecognized below, the prohibition "is universallyunderstood as a requirement to provide ’meaningfulaccess.’" App. 10a.

Due to the passive discrimination that Title II isdesigned to remedy, § 12133 expressly authorizes aprivate right of action to "[a]ny person allegingdiscrimination on the basis of disability in violationof section 12132 .... " Important for purposes of Mr.Lonberg’s suit here, available remedies include in-junctive relief. Barne~ v. Go,’man, 536 U.S. 181, 187(2002).

Transition-plan requirements have their genesisin § 12134, which required the Attorney General to"promulgate regulations" by July 26, 1991, that wereconsistent with the Rehabilitation Act regulationsalready in effect for federally conducted activities.42 U.S.C. § 12134(a), (b) (citing 28 C.F.R. § 39.101 et

7

seq.). Among the regulations Congress specificallydirected the Attorney General to implement was aregulation that requires public entities to developtransition plans that identify physical obstacleslimiting access to the entities’ programs and activi-ties, and that explain how and when those obstacleswill be removed. See 28 C.F.R. § 39.150(d). Accord-ingly, the regulations the Attorney General promul-gated require certain public entities (i.e., thoseentities that would need to make "structural changesto facilities" to meet ADA standards) to "develop... atransition plan setting forth the steps necessary tocomplete such changes." 28 C.F.R. § 35.150(d). At aminimum, such a plan must identify physical obsta-cles that limit accessibility; describe the methodsthat will be used to make facilities accessible; createan implementation schedule; and indicate the gov-ernment official responsible for plan implementation.28 C.F.R. § 35.150(d)(3).

The Disability Rights Section of the U.S. Depart-ment of Justice’s Civil Rights Division has identifiedfailure to develop transition plans as one of theADA’s most "common problems." The ADA and CityGovernments: Common Problems (Oct. 9, 2008),available at http://www.ada.gov/comprob.htm [here-inafter "Common Problems"]. As the Department ofJustice observes, when transition plans are notdeveloped, "city governments are ill-equipped toimplement accessibility changes required by theADA," and the city "can only react to problems ratherthan anticipate and correct them in advance." Id.The necessary result is that "people with disabilitiescannot participate in or benefit from the city’s ser-vices, programs, and activities." Id. This is the exactharm that Congress sought to prevent when itenacted § 12132 and made it privately enforceable.

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B. John Lonberg is being denied access tostreets and sidewalks.

Petitioner John Lonberg is a resident of the Cityof Riverside, California. He is a man with paraplegiawho uses a wheelchair for mobility. Mr. Lonberguses the City’s public streets and sidewalks on a reg-ular and ongoing basis to, among other things, takehis grandchildren to sporting events, patrol thestreets as a Handicap Parking Patrol Officer, attendchurch, accompany his grandchildren to school, andgo to Kaiser Hospital.

The City of Riverside is a municipal corporationand charter city of the State of California that issubject to the ADA. By federal mandate, the Citywas supposed to have a transition plan in place byJuly26, 1992, 28 C.F.R. §35.150(d)(1), and wasrequired to bring its facilities into ADA complianceno later than January 26, 1995, 28 C.F.R. § 35.150(c).Yet, more than 15 years later, the City acknowledgesthat there are still "thousands" of unlawful barriersto Mr. Lonberg’s mobility throughout the City. Afterexamining the evidence, the district court concludedthat the City "has engaged in a pervasive pattern ofviolating Title II of the ADA and the regulationsrelated thereto." App. 30a (emphasis added).

The physical obstacles that Mr. Lonberg encoun-ters within the City prevent him from using certainCity streets and sidewalks, or require him to risk hishealth and safety by going around or throughobstacles. The district court concluded that the chal-lenges Mr. Lonberg faces due to these obstacles"cause him irreparable harm." App. 20a.

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C. Petitioner’s suit and the District Court’sgrant of an injunction against the City

Mr. Lonberg initiated his lawsuit in 1997. Thedistrict court divided the litigation into three phases.At issue in this appeal is phase one, concerningMr. Lonberg’s claim that the City lacked an adequatetransition plan as 28 C.F.R. § 35.150(d) requires.

On June 12, 2000, the district court first con-cluded, as a matter of law, that the City lacked anadequate transition plan addressing the thousands ofbarriers to accessibility within the City. The Cityamended its plans in November 2000 and again inJuly 2001, but the district court held that theseplans likewise failed to meet the requirements ofADA Title II and its accompanying regulations. In soruling, the district court noted that the City had notraised the issue whether § 35.150(d) is enforceable bya private citizen by means of a federal lawsuit. Butthe court noted that several district courts had heldthat such a private right of action exists, at leastwhere the plaintiff seeks injunctive relief. App. 43a(citing Matthews v. Je~ferson, 29 F. Supp. 2d 525,539 (W.D. Ark. 1998); Schonfeld v. City of Carlsbad,978 F. Supp. 1329 (S.D. Cal. 1997); MeCready v.Michigan State Bar, 881 F. Supp. 300 (W.D. Mich.1995)).

On March 21, 2006, the district court entered apermanent injunction against the City, requiring itto prepare a transition plan that complies with theADA and 28 C.F.R. § 35.150. App. 15a. The Citythen moved for a new trial, arguing for the very firsttime--after a decade of litigation--that Mr. Lonbergdid not have a right to privately enforce § 35.150(d).The district court denied the City’s motion on themerits, reaching the same conclusion as the Tenth

10

Circuit’s decision in ChaftTn v. Kansas State FairBoard, 348 F.3d 850, 858 (10th Cir. 2002), that§ 35.150(d) is privately enforceable.

D. The Ninth Circuit’s decision

The City appealed, and a divided panel of theNinth Circuit reversed, holding that § 35.150(d) doesnot create a private right of action. (The dissentingjudge would have affirmed based on waiver. App.13a.) The panel majority, acknowledging that other"circuits have split" on the issue, App. 6a, declined tofollow the Tenth Circuit’s lead in Chaffin, choosinginstead to follow the Sixth and First Circuit decisionsin Ability Center of Greater Toledo v. City ofSandusky, 385 F.3d 901, 914 (6th Cir. 2004), andIverson v. City of Boston, 452 F.3d 94, 102 (lst Cir.2006). In so ruling, the majority failed entirely toanalyze either the ADA provision directing theAttorney General to promulgate a transition-planregulation, 42 U.S.C. § 12134, or the provision creat-ing a private cause of action to enforce the ADA, 42U.S.C. § 12133.

Mr. Lonberg petitioned for rehearing en banc,and on July 17, 2009, the panel unanimously orderedthe City to file a response. App. 58a. On January15, 2010, the panel majority voted to deny the peti-tion, with one judge recommending that the petitionbe granted. App. 59a. The petition for rehearing enbanc also received a split vote but failed to garnerthe support of a majority of the nonrecused, activejudges of the Ninth Circuit. Id.

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REASONS FOR GRANTING THE PETITIONThis Court should review the Ninth Circuit’s

decision because the circuits are split over the recur-ring and important issue whether a person with adisability has a private right of action to enforce theADA’s transition plan regulation, 28 C.F.R. § 31.150.As a result of the panel majority’s ruling below,millions of individuals with a disability who live in orvisit the Ninth Circuit (or the Sixth and FirstCircuits that the panel majority followed), willinevitably be barred from participating in or benefit-ing from city services, programs, and activities, thevery type of passive discrimination that Congresssought to remedy in enacting the ADA.

The Ninth Circuit’s decision is also inconsistentwith the plain text of §§ 12133 and 12134. Eventhough Congress identified a specific transition-planregulation as necessary to implement the ADA(§ 12134), and expressly created a private right toenforce the ADA (§ 12133), the panel majority failedto address either of these sections in concluding thatthe regulation could not be enforced by privateaction. That conclusion was error.

Finally, the Ninth Circuit’s decision conflictswith this Court’s decision in Alexander v. Sandov~l,532 U.S. 275 (2001). In S~ndoval, this Court statedthat "[a] Congress that intends the statute to beenforced through a private cause of action intendsthe authoritative interpretation of the statute [i.e.,the regulation] to be enforced as well." Id. Here,Congress specifically created a right that implements§ 12132 by directing the Attorney General to promul-gate regulations requiring a transition plan, therebydemonstrating that Congress intended both to createthe right to a transition plan, see 42 U.S.C. § 12134,

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and a private right of action to enforce the transitionplan, see id. § 12133. And the authoritative regu-lations do just that by "effectuat[ing]" the prohibitionagainst "discrimination on the basis of disability bypublic entities" by requiring public entities to "de-velop a transition plan." See 28 C.F.R. §§ 35.101 &35.150(d). Because Congress intended to provide aprivate right of action to enforce the ADA transition-plan regulation, such regulation is privately enforce-able under Sandoval.

I. The Ninth Circuit’s decision furthers a splitamong the federal circuits on an issue ofrecurring and substantial importance.

The Ninth Circuit recognized its decision fur-thered a clear circuit split as to whether § 35.150(d)creates a private right of action. App. 6a. The NinthCircuit aligned itself with the Sixth Circuit in Abilit~vCenter, and the First Circuit in Iverson. In so rul-ing, the Ninth Circuit reversed the district court,which had reached the same conclusion as the TenthCircuit in ChafSn.

The Tenth Circuit’s opinion in Chatt~n correctlyrejects the panel majority’s conclusion here that§ 35.150(d) somehow creates a new right that cannotbe found in Title II. In the Tenth Circuit’s view, theregulation "simply provide[s] the details necessary toimplement the statutory right created by [§ 12132] ofthe ADA." 348 F.3d at 858. This conclusion is con-sistent with the federal government’s, view that the"common problem" of a city’s failure to prepare atransition plan leads to the denial of city services,programs, and activities to individuals with disabili-ties, the very problem that Congress tried to correctby enacting § 12132. Common Problems, supra.

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The importance of the issue presented and themillions of individuals it affects counsel strongly infavor of this Court’s resolution of the split in author-ity. In circuits such as the First, Sixth, and Ninth,that have held there is no private right of action toenforce §35.150(d), an apparent lack of federalresources to enforce the regulation will allow citiesand other local governments to ignore their duty toprevent discrimination on the basis of disability.That is how the City of Riverside has reached theyear 2010, some 15 years after it was supposed to beADA compliant, with thousands upon thousands ofphysical barriers to access still in place. Wastefullitigation over the question presented also is sure tooccur in circuits that have not yet addressed theissue. This Court should grant certiorari now toresolve the conflict and ensure that the ADA isuniformly applied throughout the country.

II. The Ninth Circuit’s decision contravenes thetext of the Americans with Disabilities Actand this Court’s decision in b’tmdo~ra/.

Congress clearly expressed its intent in the ADAto provide a private cause of action to enforce thetransition-plan regulation. Indeed, Congress specifi-cally authorized the regulation in the statutory textto give effect to the ADA’s prohibition on discrimina-tion against persons with a disability.

First, Congress in the ADA prohibited publicentities from discriminating against persons with adisability: "no qualified individual with a disabilityshall, by reason of such disability, be excluded fromparticipation in or be denied the benefits of the ser-vices, programs, or activities of a public entity, or besubjected to discrimination by any such entity." 42U.S.C. § 12132. As the Ninth Circuit noted, "[t]his

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prohibition against discrimination is universallyunderstood as a requirement to provide ’meaningfulaccess.’" App. 10a. The City of Riverside admits it isa public entity subject to this prohibition.

Second, Congress provided a private right ofaction to enforce the ADA’s prohibition against dis-crimination. The section immediately following theprohibition, a section entitled "Enforcement," statesthat "[t]he remedies, procedures, and rights set forthin section 794a of title 29 shall be the remedies,procedures, and rights this subchapter provides toany person alleging discrimination on the basis ofdisability in violation of section 12132 of this title."42 U.S.C. 8 12133. The Ninth Circuit agrees that"[8 12132] is enforceable through a private right ofaction," App. 9a, and the City has not disputed thatpoint.

Tt~ird, Congress directed the Attorney General topromulgate regulations to implement the ADA’sdiscrimination prohibition, and that direction spe-cifically called for regulations requiring transitionplans. Section 12134(a) states that "the AttorneyGeneral shall promulgate regulations.., that imple-ment this part"--with "this part" referring to 8 12131through 8 12134. Accordingly, the Attorney Generalpromulgated in 28 C.F.R. Part 35 regulations thatstate that "[t]he purpose of this part"---consisting of28 C.F.R. 8 35.101 to 8 35.189--"is to effectuate sub-title A of title II of the Americans with DisabilitiesAct"--i.e., 42 U.S.C. 812131 through 812134--"which prohibits dise~mination on the basis ofdisability by public entities." 28 C.F.R. 8 35.101(emphasis added). This statement of purpose demon-strates the Attorney General’s interpretation that allof the regulations in Part 35, including both its

15

"[g]eneral prohibitions against discrimination," id.§ 35.130, and its regulations addressing "[e]xistingfacilities" and transition plans, id. § 35.150,effectuatethe prohibition against discriminationfound in42 U.S.C. § 12132. See Alex~der v.Sandoval, 532 U.S. 275, 284 (2001) ("[R]egulations, ifvalid and reasonable, authoritatively construe thestatute itself." (citing Chevron U.S.A. Inc. v. NaturalRes. Def. Council, Inc., 467 U.S. 837, 843-44 (1984))).In other words, the Attorney General promulgatedthese regulations under § 12132, and thatinterpretation of the ADA, as reflected in 28 C.F.R.§ 35.101, is entitled to Che~Ton deference.

Furthermore, Congress went so far as to specifythe content of those regulations: "with respect to’program accessibility, existing facilities’ ..., suchregulations shall be consistent with regulations andanalysis as in part 39 of title 28 of the Code ofFederal Regulations." 42 U.S.C. § 12134(b). Byreferring to 28 C.F.R. Part 39, which includes regu-lations promulgated under the Rehabilitation Act,Congress thus purposely referred to 28 C.F.R.§ 39.150, which (as echoed in the text of § 12134(b))is entitled "Program accessibility: Existing facili-ties." And as the following chart shows, the AttorneyGeneral followed Congress’s express directive byadopting in §35.150(d) a regulation that wasconsistent with--and in fact extremely similar to--28 C.F.R. § 39.150.

28 C.F.R. § 39.150(Rehabilitation Act)

(d) Transition plan.In the event that struc-tural changes to facilitieswill be undertaken to

28 C.F.R. § 35.150(ADA)

(d) Transition plan.(1) In the event thatstructural changes tofacilities will be under-

16

achieve program accessi-bility, the agency shalldevelop, by April 11,1985, a transition plansetting forth the stepsnecessary to completesuch changes ....

The plan shall, at aminimum-

(1) Identify physicalobstacles in the agency’sfacilities that limit theaccessibility of its pro-grams or activities tohandicapped persons;

(2) Describe in detailthe methods that will beused to make the facili-ties accessible;

(3) Specify theschedule for takingthe steps necessary toachieve compliance withthis section and, if thetime period of the tran-sition plan is longer thanone year, identify stepsthat will be taken duringeach year of the transi-tion period; and

taken to achieve programaccessibility, a public en-tity that employs 50 ormore persons shall de-velop, within six monthsof January 26, 1992, atransition plan settingforth the steps necessaryto complete suchchanges ....

(3) The plan shall, at aminimum-

(i) Identify physicalobstacles in the publicentity’s facilities thatlimit the accessibility ofits programs or activitiesto individuals withdisabilities;

(ii) Describe in detailthe methods that will beused to make the facili-ties accessible;

(iii) Specify theschedule for takingthe steps necessary toachieve compliance withthis section and, if thetime period of the tran-sition plan is longer thanone year, identify stepsthat will be taken duringeach year of the transi-tion period; and

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(4) Indicate the officialresponsible for imple-mentation of the plan.

(iv) Indicate the of-ficial responsible for im-plementation of the plan.

Congress thus specifically indicated through theplain text of 42 U.S.C. § 12134 its intent to imple-ment §12132’s anti-discrimination provision byrequiring public entities to prepare and implementtransition plans, and Congress even required thatsuch plans meet certain requirements. Despite thefact that § 12134 specifically directs the AttorneyGeneral to implement § 12132 by adopting transi-tion-plan regulations, the Ninth Circuit neveraddressed § 12134 in its opinion.

Fourtlb, this Court has explained that whenCongress creates a private right of action to enforce astatute, it necessarily intends to create a privateright of action to enforce regulations implementingthat statute. In AIexanderv. Sandov~l, 532 U.S. 275(2001), this Court stated that "[a] Congress thatintends the statute to be enforced through a privatecause of action intends the authoritative interpreta-tion of the statute [i.e., the regulation] to be enforcedas well." Id. Here, Congress specifically created aright that implements § 12132 by directing theAttorney General to promulgate regulations requir-ing a transition plan, thereby demonstrating thatCongress intended both to create the right to atransition plan, see 42 U.S.C. § 12134, s~d a privateright of action to enforce the transition plan, see id.§ 12133. And the authoritative regulations do justthat by "effectuat[ing]" the prohibition against"discrimination on the basis of disability by publicentities" by requiring public entities to "develop atransition plan." See 28 C.F.R. 3335.101 &35.150(d). Just as this Court in Sandoval did "not

18

doubt that regulations applying 8601’s ban onintentional discrimination are covered by the causeof action to enforce that section," 532 U.S. at 284,here too there should be no doubt that the transition-plan regulations implementing 8 12132’s ban ondiscrimination fall squarely within a cause of actionto enforce 8 12132. Under Sandoval, therefore,Congress intended to provide a private right of actionto enforce the ADA transition-plan regulations.ChaflSn, 348 F.3d at 858 ("The [transition-plan]regulations simply provide the details necessary toimplement the statutory right created by 8 12132 ofthe ADA. They do not prohibit otherwise permissibleconduct.") (citation omitted).

In its decision below, the Ninth Circuit acknowl-edged that "regulations effectuating the statute’sclear prohibitions or requirements are enforceablethrough the statute’s private right of action." App.9a. That acknowledgment should have been the endof its analysis, because the transition-plan regula-tions effectuate rights specifically laid out in the textof the ADA. See 42 U.S.C. 88 12132, 12134. But inspite of the clear language of the ADA, the NinthCircuit concluded that the ADA transition-plan regu-lation "is not enforceable through [8 12132’s] privateright of action because the obligations it imposes arenowhere to be found in [8 12132’s] plain language."App. lla. The Ninth Circuit reached this conclusiononly by ignoring 8 12134 and by misreadingSandoval.

In Sandoval, this Court considered whether TitleVI regulations prohibiting a disparate impact couldbe enforced through a private right of action grantedunder a statute that forbade only intentional dis-crimination. "Both the Government and respondents

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argue[d] that the regulations contain rights-creatinglanguage and so must be privately enforceable," butthis Court explained that the right must be createdby statutory text. 532 U.S. at 291. Noting that"§ 601 prohibits only intentional discrimination," id.at 280, this Court concluded that § 601 did not createa right to be free from a disparate impact: "It is clearnow that the disparate-impact regulations do notsimply apply § 601--since they indeed forbid conductthat § 601 permits--and therefore [make] clear thatthe private right of action to enforce § 601 does notinclude a private right of action to enforce theseregulations." Id. at 285. After analyzing the statute,this Court "found no evidence anywhere in the textto suggest that Congress intended to create a privateright to enforce regulations promulgated under§ 602." Id. at 291. "Language in a regulation," thisCourt continued, "may invoke a private right ofaction that Congress through statutory text created,but it may not create a right Congress has not." Id.

In contrast here, Congress did, through the stat-utory text, create the right to a transition plan. Sec-tion 12134 specifically provides that the regulations"implement this part," which includes § 12132, andexpressly requires the ADA regulations to be con-sistent with the Rehabilitation Act regulations thatrequire a transition plan. See 42 U.S.C. § 12134(b)("[S]uch regulations shall be consistent withregulations ... in [28 C.F.R. part 39]."); see also 28C.F.R. § 39.150(d) (requiring agencies to develop ...a transition plan setting forth the steps necessary tocomplete such changes"). And § 12133 creates a pri-vate right of action to address violations of § 12132.Furthermore, the Attorney General authoritativelyinterpreted § 12134’s specific requirement that headopt transition-plan regulations as effectuating

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§ 12132’s discrimination prohibition. UnderSandoval, then, Congress’s clear intent to create aprivate right of action to enforce the discriminationprohibition demonstrates that it also intends thatthe regulation implementing that prohibition beenforceable by a private right of action.

The Ninth Circuit also based its ruling on theconclusion that "[t]he existence or non-existence of atransition plan does not, by itself, deny a disabledperson access to a public entity’s services, nor does itremedy the denial of access." App. 10-11a. Thatargument disregards the fact that Congress createdthe right to a transition plan in the ADA andauthorized aggrieved individuals to seek aninjunction enforcing that right. And the facts of thiscase demonstrate exactly why Congress imposed thisrequirement. Congress placed the burden on publicentities to "[i]dentify physical obstacles ... thatlimit" accessibility, 28 C.F.R. § 35.150(d)(3)(i), so thatan individual with a disability would not have toencounter dangerous or impassible obstacles duringthe course of ordinary life, and then be forced tolitigate each one on a case-by-case basis to provideaccess. Accord Common Problems, supra. In short,Congress required public entities to provide aroadmap through the minefield, not just a right tosue after stepping on a mine.

Here, for example, because the City violated theregulation by failing to complete its transition planby July 26, 1992 and by failing to take steps neces-sary to achieve compliance with the plan, 28 C.F.R.§ 35.150(d)(3), Mr. Lonberg has spent the last 18years of his life risking tipping over in his wheel-chair, getting stuck, or getting hit by traffic when hecannot travel on the sidewalks, without even being

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provided information about which intersections andsidewalks to avoid. This case demonstratesCongress’s wisdom in allowing private citizens to sueto require a city to develop a transition plan, ratherthan requiring such citizens to themselves identifyand be injured by each individual obstacle beforethey could seek redress.

The Ninth Circuit also contended that "a publicentity may be fully compliant with [§ 12132] withoutever having drafted a transition plan, in which case,a lawsuit forcing the public entity to draft such aplan would afford the plaintiff no meaningful rem-edy." App. lla. That is of course not this case, butin any event, the transition-plan regulation does notapply when a public entity is fully compliant: atransition plan is necessary only "[i]n the event thatstructural changes to facilities will be undertaken toachieve program accessibility." 28 C.F.R.§ 35.150(d). Thus, a fully compliant public entitywould not need to make structural changes andwould not need to develop a transition plan. Andwhile the Ninth Circuit correctly notes that a publicentity with a transition plan could still violate§ 12132, that does not justify disregarding this statu-torily created requirement. Moreover, having theplan would both provide individuals with a disabilitywith notice of the obstacles remaining in their com-munity, which would help them avoid the obstacles,and would provide those individuals with the right toparticipate in the process of prioritizing the removalof the obstacles. 28 C.F.R. § 35.150(d). Having atransition plan would give effect to those rights.

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CONCLUSIONThe petition for a writ of certiorari

granted.

Respectfully submitted.

DON A. ERNST JOHN J. BURSCHTERRY J. KILPATRICK CouBse] of RecordERNST & MATTISON, APC MATTHEW T. NELSON1020 Palm Street AARON D. LINDSTROMSan Luis Obispo, CA 93401 JULIE LAM(805) 541-0300 WARNER NORCROSS & JUDD LLP

900 Fifth Third Center111 Lyon Street N.W.Grand Rapids, MI 49503(616) 752-2000jbursch@wnj.com

should be

Counsel for Petitioner

APRIL 2010