Federal District Court Opinions

AREA TRANSIT AUTHORITY, et al., Defendants. Civil Action
04-00498 (HHK). United States District Court, D. Columbia.
December 9, 2006


HENRY KENNEDY JR., District Judge

Before the court are defendants’ motion to dismiss
plaintiffs’ second amended complaint [#69], plaintiffs’
Rule 23(c) motion for class certification [#12],
defendants’ motion to strike plaintiffs’ exhibits attached
to their reply regarding class certification [#81], and
defendants’ motion for reconsideration of the magistrate
judge’s order denying their motion for leave to file a
third-party complaint [#91]. Upon consideration of the
motions, the oppositions thereto, and the record of the
case, the court concludes that (1) the motion to dismiss
must be granted in part and denied in part; (2) the motion
for class certification should be granted in part and
denied in part, (3) the motion to strike should be denied;
and (4) defendants’ motion for reconsideration should be


This case involves a series of challenges to the adequacy
of paratransit services provided by defendant Washington
Metropolitan Area Transit Authority (“WMATA”) to persons
with disabilities residing in the Washington, D.C.,
metropolitan area. WMATA, a public entity Page 2
established by compact between Maryland, Virginia, and the
United States Congress (acting pursuant to its governmental
authority over the District of Columbia), operates a
fixed-route transportation system of both bus and rail
lines for Washington-area passengers. Souders v. Wash.
Metro. Area Transit Auth., 48 F.3d 546, 548 (D.C. Cir.
1995). Defendant Jack Requa is the acting general manager
of WMATA.[fn1] Title II of the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.,
requires entities operating such systems to provide
paratransit services to persons with disabilities at “a
level of service . . . which is comparable to the level of
. . . services provided to individuals without
disabilities.” 42 U.S.C. § 12143(a). The Department
of Transportation (“DOT”) has also issued regulations
outlining requirements for compliance with the ADA. 49
C.F.R. Part 37.

WMATA complies with these requirements by providing a
service called “MetroAccess,” a shared-ride, curb-to-curb
paratransit service. MetroAccess maintains fleets of
vehicles that are dispatched to eligible riders on an
appointment basis and delivers them to their requested
destinations. Many operational aspects of the program,
including reservations, drivers, and maintenance, are
performed by contractors hired by WMATA. From 2000 to 2006,
contract services were provided by LogistiCare, Inc., and
from January 2006 to the present, these services have been
provided by MV Transportation, Inc.

Plaintiffs, including the Disabilities Rights Council of
Greater Washington and a number of
paratransit-service-eligible individuals, allege that WMATA
has failed to maintain a level of Page 3 paratransit
service comparable to that offered via its fixed-route
systems. Specifically, plaintiffs allege WMATA has engaged
in a variety of “operational patterns or practices” that
significantly limit the availability of paratransit
services. See 49 C.F.R. § 37.131(f) (prohibiting
such patterns or practices). These include frequent missed
trip appointments, late trips, excessively long trips, poor
customer service, malfunctioning equipment, discourteous
vehicle operators, and reservation system inadequacies.

The second amended complaint brings claims of disability
discrimination pursuant to the ADA, § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.
(“Rehabilitation Act”), and § 1983 of Title 42 of
the United States Code, and seeks class certification.
WMATA moves to dismiss the complaint and also moves to
strike exhibits filed in support of plaintiffs’ class
certification motion. Finally, WMATA objects to an order,
authored by Magistrate Judge John M. Facciola, denying its
motion for leave to file a third-party complaint against
LogistiCare, Inc.


A. Defendants’ Motion to Dismiss

1. The ADA’s Abrogation of WMATA’s Purported Sovereign

The court turns first to the motion to dismiss. WMATA’s
primary argument in support of dismissal is that though the
ADA specifically abrogates the states’ sovereign immunity
as to claims that its mandates have been violated, see 42
U.S.C. § 12202, that abrogation is invalid as to the
class of claims asserted here.

a. General Principles

As a quasi-public entity, WMATA “partakes of the state
sovereign immunity conferred by the eleventh amendment upon
Virginia and Maryland.” Souders, 48 F.3d at 548. Given this
Page 4 immunity, WMATA may only be sued in this court
either if WMATA has waived its immunity or if Congress
(pursuant to its enforcement power under § 5 of the
Fourteenth Amendment) has abrogated that immunity. Barbour
v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1163
(D.C. Cir. 2004).[fn2]

“Congress’ power to enforce the [Fourteenth] Amendment
includes the authority both to remedy and to deter
violation of rights guaranteed thereunder by prohibiting a
somewhat broader swath of conduct, including that which is
not itself forbidden by the Amendment’s text.” Univ. of
Ala. v. Garrett, 531 U.S. 356, 365 (2001) (internal
quotation marks and citation omitted). Where Congress acts
upon this broad power and enacts “prophylactic legislation”
proscribing conduct that does not itself violate the
Fourteenth Amendment, that legislation “must exhibit
`congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.'”
Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 27-28
(quoting City of Boerne v. Flores, 521 U.S. 507, 520
(1997)). WMATA argues that the ADA sovereign immunity
waiver is valid only as to any conduct on its part that
constituted a violation of plaintiffs’ “fundamental”
rights, and does not allow plaintiffs to bring claims for
conduct not amounting to such a violation. Defs.’ Mem. in
Supp. of Mot. to Dismiss (“Mot. to Dismiss”) at 8-12.

b. Arguments Presented by the United States

Because the ADA’s waiver of sovereign immunity has been
called into question, the United States has intervened in
this case for the limited purpose of defending that waiver.
The Page 5 United States argues that (1) the court should
not reach the question of the ADA’s abrogation of WMATA’s
sovereign immunity, and (2) the abrogation is valid as to
the class of cases, such as this one, implicating public
transportation. As to the former, the United States cites
the “fundamental and longstanding principle of judicial
restraint [which] requires that courts avoid reaching
constitutional questions in advance of the necessity of
deciding them,” Lyng v. Northwest Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988), and argues that
the plaintiffs’ Rehabilitation Act claims necessarily
envelop the plaintiffs’ ADA claims, since compliance with
the Rehabilitation Act, at least as to WMATA, requires full
compliance with the ADA and its regulations. According to
this argument, plaintiffs’ ADA claims are entirely
duplicative of their Rehabilitation Act claims, the latter
of which proscribe the same conduct and offer identical
remedies. Given the duplicative nature of the claims under
the two Acts, the United States asserts that the ADA claims
simply may be dismissed, thus providing an avenue for the
constitutional questions regarding abrogation to be avoided.
As to the latter argument, the United States joins
plaintiffs in arguing that where the ADA prophylactically
proscribes conduct relating to public transportation which
is not prohibited by the text of the Fourteenth Amendment,
it manifests the requisite congruence and proportionality
between the injuries to be prevented and the means adopted
to prevent them.

The court agrees with the United States that it need not
— and, as a matter of prudence, should not —
address the parties’ abrogation-related arguments. The
parties apparently all agree, and the court has not found
reason to dispute, that because (1) WMATA has waived its
immunity as to plaintiffs’ Rehabilitation Act claims, and
(2) the DOT regulations governing compliance with the
Rehabilitation Act require compliance with all requirements
of the ADA (including Page 6 those imposed by the
applicable DOT regulations), see 49 C.F.R. § 27.19
(“Recipients [of federal funding] subject to this part . .
. shall comply with all applicable requirements of the
Americans with Disabilities Act (ADA) of 1990.”), any
violations of the ADA by WMATA are necessarily violations
of the Rehabilitation Act. See Nat’l Latino Media Coal. v.
FCC, 816 F.2d 785, 787-88 (D.C. Cir. 1987) (“A valid
legislative rule is binding upon all persons, and on the
courts, to the same extent as a congressional statute. When
Congress delegates rulemaking authority to an agency, and
the agency adopts legislative rules, the agency stands in
the place of Congress and makes law.”). Because plaintiffs
may enforce these regulations (and thereunder may sue to
enforce the ADA), their ADA claims are enveloped by their
claims under the Rehabilitation Act. See 29 U.S.C.
§§ 794(a), 794a (directing agencies to adopt
regulations implementing the Act and authorizing private
rights of action); Alexander v. Sandoval, 532 U.S. 275, 284
(2001) (“A Congress that intends the statute to be enforced
through a private cause of action intends the authoritative
interpretation of the statute to be so enforced as well.”).
Moreover, the remedies offered by the Rehabilitation Act in
the context of this case are identical to those offered by
the ADA. See 42 U.S.C. § 12133 (ADA) (incorporating
remedies in 29 U.S.C. § 794a (Rehabilitation Act)).
Plaintiffs’ ADA claims thus may be fully addressed and
remedied via the Rehabilitation Act. Therefore, the court
will dismiss those claims and deem the allegations
contained therein as stating substantive ADA claims brought
pursuant to the Rehabilitation Act.[fn3] Page 7

2. Standing

WMATA’s second major argument in support of dismissal is
that the plaintiffs lack standing to bring some of their
claims. First, it argues that Plaintiffs’s ADA claims fail
because they do not allege any violations of rights the
courts have deemed “fundamental” in the context of
Fourteenth Amendment jurisprudence. Mot. to Dismiss at
8-12. And, so the argument goes, Congress’s abrogation of
sovereign immunity is only valid as to such rights
violations. This argument is mooted by the court’s
dismissal of plaintiffs’ ADA claims. Because the full range
of plaintiffs’ ADA claims may be addressed via § 504,
the court need not consider whether the alleged violations
impinge on fundamental rights. The identification of rights
as fundamental is only relevant here to the question of the
ADA’s abrogation of WMATA’s sovereign immunity — a
question the court need not consider.

Second, WMATA argues that plaintiffs lack standing because
many of the alleged wrongs about which they complain do not
constitute violations of the ADA. Specifically, WMATA
argues that though plaintiffs complain about
“[d]iscourteous drivers, frustrating treatment by telephone
operators, poorly functioning air conditioning and heating
controls, and exposure to the elements,” such complaints
cannot possibly fall within the scope of the ADA because
they represent matters not governed by DOT regulations. Id.
at 15-16. In WMATA’s view, such complaints are to be
distinguished from complaints regarding untimely pickups,
missed trips, or trips of excessive length. Only these
complaints, it argues, are subjects of DOT regulation and
therefore only they may give rise to civil actions under
the ADA. Page 8

a. Whether the Court Should Address WMATA’s Standing
Arguments Before or After Addressing Class Certification

Before turning to this argument, the court must determine
whether to address it prior to or after addressing
plaintiffs’ motion to certify the proposed class. In the
class action context, the Supreme Court has directed courts
to address certain issues of standing after certifying (or
denying certification of) classes: in Amchem Products, Inc.
v. Windsor, 521 U.S. 591 (1997), the Court observed that
class certification questions were “logically antecedent”
to, and should be addressed before, questions of class
standing “which would not exist but for the class action
certification.” Id. at 612; see also Ortiz v. Fibreboard
Corp., 527 U.S. 815, 831 (1999) (citing Amchem). This
statement has caused some confusion among the courts, which
have struggled to determine how broadly and in what
circumstances to delay addressing standing in the class
action context. See generally Linda S. Mullenix, Standing
and Other Dispositive Motions After Amchen and Ortiz: The
Problem of “Logically Antecedent” Inquiries, 2004 Mich. St.
L. Rev. 703 (2004) (collecting cases).

This appears to be a question of first impression in this
jurisdiction. In assessing it, the court finds two decisions
of the Seventh and Fifth Circuits to be instructive. The
Seventh Circuit has described the statements of Amchem and
Ortiz simply to speak to “the long-standing rule that, once
a class is properly certified, statutory and Article III
standing requirements must be assessed with reference to
the class as a whole, not simply with reference to the
individual named plaintiffs.” Payton v. County of Kane, 308
F.3d 673, 680 (7th Cir. 2002). Similarly, the Fifth Circuit
has described the Supreme Court’s statements as
articulating a “limited exception” to the general principle
that standing should be assessed before certification,
applicable only where the Page 9 standing issue would not
exist if the complaint were filed as an individual action.
Rivera v. Wyeth-Averst Labs., 283 F.3d 315, 319 n. 6 (5th
Cir. 2002). Put differently, “the Ortiz exception treating
class certification as the antecedent consideration does
not apply if the standing issue would exist regardless of
whether the name plaintiff filed his claim alone or as part
of a class.” Clark v. McDonald’s Corp., 213 F.R.D. 198, 204
(D.N.J. 2003) (citing Ford v. NYLCare Health Plans of Gulf
Coast, Inc., 301 F.3d 329, 333 n. 2 (5th Cir. 2002) (citing
Rivera, 283 F.3d at 319 n. 6)). The court agrees with the
approach of these decisions. The standing issues raised by
WMATA here do not fall within the Ortiz exception. Whether
the class is certified will have no bearing on WMATA’s
argument that the ADA regulations only govern missed,
lengthy or untimely paratransit trips, and the question of
standing would apply to the individual plaintiffs or to the
proposed class of plaintiffs equally. The court may
therefore address WMATA’s standing arguments prior to
addressing class certification.

b. Requirements for Establishing Standing

The party invoking federal jurisdiction bears the burden
of demonstrating standing. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). To establish standing under
Article III, a plaintiff must establish (1) that the
plaintiff suffered an “injury in fact;” (2) that the injury
is “fairly . . . trace[able] to the challenged action of
the defendant;” and (3) that the injury will “likely” be
“redressed by a favorable decision.” Id. at 560-61
(citations and internal quotation marks omitted); see also
Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426,
431 (D.C. Cir. 1998) (en banc). To qualify as an injury in
fact, the interest harmed must be concrete, particularized,
and actual or imminent. Lujan, 504 U.S. at 560. Because
standing is “an indispensable part of the plaintiff’s case,
each element must be supported in the same way as any Page
10 other matter upon which the plaintiff bears the burden
of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Id.
at 561. Thus, “[a]t the pleading stage, general factual
allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss, `we
presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.'” Ibid.
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889
(1990)). As a result, the plaintiff need only allege facts
that “demonstrate a realistic danger of [the plaintiff’s]
sustaining a direct injury.” Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979). As long as the
plaintiff can allege facts that, if true, would result in a
cognizable injury, the court should not dismiss the
complaint for lack of standing.

c. Case Law Regarding The Injury-in-Fact Aspect of the
Standing Inquiry

WMATA concedes that plaintiffs have satisfied the causation
and redressability aspects of the Article III standing
inquiry, and it does not argue that plaintiffs have failed
to allege concrete and particularized injuries. It argues
only that plaintiffs have not shown injury-in-fact as to
some of the harms they allege because those injuries are
not “legally protected.” In making this argument, WMATA
relies principally on Claybrook v. Slater, 111 F.3d 904
(D.C. Cir. 1997), in which the D.C. Circuit stated that “if
the plaintiff’s claim has no foundation in law, he has no
legally protected interest and thus no standing to sue.”
Id. at 907. This statement includes two phrases that
warrant careful inquiry: “legally protected interest” and
“no foundation in law.” Page 11

(i) “Legally Protected Interest”

As Judge Williams recently noted, the phrase “legally
protected, “as used in the standing context, is both
puzzling and potentially misleading. Judicial Watch, Inc.
v. U.S. Senate, 432 F.3d 359, 363-66 (D.C. Cir. 2005)
(Williams, J., concurring). The phrase has been used
inconsistently by the Supreme Court since its appearance in
Lujan, id. at 363 (noting that only two post-Lujan cases
apply the phrase, while two restate the injury-in-fact test
without using the words “legally protected”), and as the
D.C. Circuit has observed, “the Lujan Court itself found an
interest `cognizable’ for standing purposes (the desire to
observe an animal species, even if purely for aesthetic
purposes) with no discussion of any support in any positive
law,” id. (citing Claybrook, 111 F.3d at 907 (citing
Lujan, 504 U.S. at 562-63)).[fn4]

Furthermore, as Judge Williams observed in Judicial Watch,
“the use of the phrase `legally protected’ to require
showing of a substantive right would thwart a major
function of standing doctrine — to avoid premature
judicial involvement in resolution of issues on the
merits.” Id. at 364. For this reason, the courts have
rejected attempts (such as that made by WMATA here) to
require plaintiffs to show that their claims are legally
meritorious in order to Page 12 demonstrate that they have
standing. In Data Processing Service Organizations, Inc. v.
Camp, 397 U.S. 150 (1970), for example, the Supreme Court
rejected the notion that to establish standing, a plaintiff
must allege an invasion of a “legal right.” A court should
ask not whether a “legal right” was invaded, the Court
observed, but rather whether the plaintiff has suffered an
“injury in fact” — i.e., an injury to an interest,
rather than to a “right” — and, where alleged
statutory rights are involved, whether the interest the
plaintiff seeks to protect is within the “zone of
interests” protected or regulated by the statute in
question. Id. at 153; see also Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 12 (2004). The Court reasoned
that an inquiry into the existence of a legal right “goes
to the merits,” and that “[t]he question of standing is
different.” 397 U.S. at 153. Likewise, the D.C. Circuit has
recently held that if phrase “legally protected” allowed
for the consideration of legal arguments, courts “would
effectually be deciding the merits under the guise of
determining the plaintiff’s standing.” Info. Handling
Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d
1024, 1030 (D.C. Cir. 2003).

(ii) “No Foundation in Law”

The phrase “no foundation in law” likewise could be
misused. WMATA equates the phrase with simply being wrong
as a matter of law. Claybrook does not support such a
reading. First, in Claybrook, the D.C. Circuit observed
that “[w]hether a plaintiff has a legally protected
interest (and thus standing) does not depend on whether he
can demonstrate that he will succeed on the merits.
Otherwise, every unsuccessful plaintiff will have lacked
standing in the first place.” 111 F.3d at 907.
Unsurprisingly, then, the holding in Claybrook was not that
the plaintiffs had the law wrong, but rather that the
plaintiff lacked standing because the particular Page 13
question he presented was committed to agency discretion,
and therefore the court was “left with no law to apply to
Claybrook’s claims.” 111 F.3d at 909.[fn5]

Moreover, WMATA’s broad reading of Claybrook’s “no
foundation” language runs contrary to the approach
articulated in later decisions by the D.C. Circuit. In
these cases, the court has inquired not whether plaintiffs’
legal interpretations are correct, but rather whether they
are frivolous. See Louisiana Energy and Power Auth. v.
FERC, 141 F.3d 364, 368 (D.C. Cir. 1998) (“To be sure,
claims that are `entirely frivolous’ or have `no foundation
in law’ are insufficient to establish standing. LEPA’s
allegations, however, cannot be characterized as frivolous,
and FERC does not suggest otherwise.” (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 97 n. 2 (1998);
Claybrook, 111 F.3d at 907)); Info. Handling Servs., 338
F.3d at 1030 (“[A] plaintiff’s non-frivolous contention
regarding the meaning of a statute must be taken as correct
for purposes of standing.”). The court has established this
standard for the same reason that animated (1) the
rejection of the “legal interest” standard in Data
Processing, and (2) the court’s narrow interpretation of
the phrase “legally protected interest” in Information
Handling Services: a court applying a more rigorous inquiry
“would effectively be deciding the merits under the guise
of determining the plaintiff’s standing.” 338 F.3d at 1030.

c. Application

With these guiding principles in mind, the court concludes
that plaintiffs have standing to bring their claims.
WMATA’s argument, essentially, is that the ADA regulations
only prohibit a transit provider from creating “capacity
constraints,” and say nothing about — and therefore
do Page 14 not prohibit — some of the harms alleged
in the complaint, including rude customer service,
inadequate telephone reservation service, failure to
respond to complaints, dangerous driving, and “false
no-shows.” 2nd Am. Compl. § 139.

Title II of the ADA requires operators of fixed-route
public transportation systems to provide paratransit

that are sufficient to provide to such individuals a
level of service (1) which is comparable to the level of
designated public transportation services provided to
individuals without disabilities using such system; or (2)
in the case of response time, which is comparable, to the
extent practicable, to the level of designated public
transportation services provided to individuals without
disabilities using such system.

42 U.S.C. § 12143. Comparability is the key
component of the statute’s requirements, and DOT
regulations set forth the service criteria for determining
whether a paratransit system satisfies this requirement.
See 49 C.F.R. § 37.131(f); see also id. §
37.121(b) (comparability to be measured by compliance with
regulations setting forth paratransit requirements). The
paratransit services must be comparable in a number of
areas, including geographic areas, response time, fares,
trip restrictions, hours and days of service, and
“capacity constraints.” Id. § 37.131. Both sides
focus their attention on the “capacity constraints”
requirements. Subsection 37.131(f), which deals with these
constraints, prohibits any of the following:

(1) Restrictions on the number of trips an individual
will be provided;

(2) Waiting lists for access to the service; or

(3) Any operational pattern or practice that
significantly limits the availability of service to ADA
paratransit eligible persons.

(i) Such patterns or practices include, but are not
limited to, the following:

(A) Substantial numbers of significantly untimely pickups
for initial or return trips; Page 15

(B) Substantial numbers of trip denials or missed trips;

(C) Substantial numbers of trips with excessive trip

Id. § 37.131(f).[fn6]

WMATA argues that this subsection definitively limits the
types of “patterns or practices” about which plaintiffs can
complain in this suit. In WMATA’s view, because the
regulations only prohibit those patterns or practices
enumerated in subsections (3)(i)(A) through (3)(i)(C), any
other patterns or practices inherently are not prohibited.
And because those practices are not prohibited in the
regulations, there is no law to apply, and standing is
lacking under Claybrook.

Plaintiffs, in contrast, read Title II and the applicable
DOT regulation to encompass their claims. This reading is
not frivolous, and plaintiffs therefore have standing to
sue. Info. Handling Servs., 338 F.3d at 1030. As plaintiffs
point out, the plain language of the regulation arguably
contradicts WMATA’s arguments. First, the regulation
prohibits “[a]ny operational pattern or practice that
significantly limits the availability of service.” 49
C.F.R. § 37.131(f)(3) (emphasis added). Moreover,
subsection (3)(i), which articulates the examples of
impermissible patterns or practices on which WMATA rests
its argument, notes that impermissible patterns or
practices “include, but are not limited to” the examples it
sets forth. Id. § 37.131(f)(3)(i). Finally, while
the regulation describes prohibited practices in these
expansive terms, it excludes from the class of prohibited
patterns a narrow set of “operational problems” which
includes only those problems “attributable to causes beyond
the control of the entity.” Id. § 37.131(f)(ii).
Page 16

Under plaintiffs’ colorable reading, the DOT regulation
contemplates an expansive variety of impermissible patterns
or practices, not limited to those articulated by the
regulation itself. This expansive language manifests an
intent to focus on the impact on the users of the system,
not on any particular list of prohibited conduct.
“[A]vailability of service” is the animating principle, and
“any pattern or practice” that significantly limits that
availability constitutes a violation of Title II. 49 C.F.R.
§ 37.131(f).

The Appendix to the DOT regulations underscores this
interpretation of § 37.131. It reiterates the
prohibition against “any operational pattern or practice
that significantly limits the availability of service.” 49
C.F.R. Part 37, App. D, at 578 (emphasis added). It also
emphasizes that the list of capacity constraint problems
appearing in subsections (3)(i)(A) through (3)(i)(C) “is
not exhaustive,” and cites numerous examples of patterns
and practices that could either directly or indirectly
result in a significant limitation on the availability of
service. Id. at 579.

The court concludes with little trouble that plaintiffs’
reading of Title II to prohibit the patterns or practices
alleged by plaintiffs, including rude customer service,
inadequate telephone reservation service, failure to
respond to complaints, dangerous driving, “false no-shows,
“untimely pick-ups, missed trips, and denied trips, is not
frivolous. See Martin v. Metro. Atlanta Rapid Transit
Auth., 225 F. Supp. 2d 1362, 1380-81 (N.D. Ga. 2002) (on
review of a motion for a preliminary injunction, holding
that plaintiffs alleging patterns of unreliable
reservations systems, excessive telephone hold times, false
no-shows, and discourteous treatment were substantially
likely to succeed at showing violations of §
37.131(f)). WMATA’s argument that plaintiffs do not have
standing is therefore rejected. Page 17

3. The “Primary Jurisdiction” Doctrine

WMATA next argues that the questions presented by
plaintiffs’ claims lie within the primary jurisdiction of
the Federal Transit Administration. The primary
jurisdiction doctrine applies where a court has
jurisdiction over a claim or set of claims, but
adjudication of those claims “requires the resolution of
issues which, under a regulatory scheme, have been placed
within the special competence of an administrative body; in
such a case the judicial process is suspended pending
referral of such issues to the administrative body for its
views.” United States v. W. Pac. R. Co., 352 U.S. 59, 63-64
(1956). The doctrine may be invoked and the matter may be
referred to an administrative agency when the agency is
“best suited to make the initial decision on the issues in
dispute, even though the district court has subject-matter
jurisdiction.” Am. Ass’n of Cruise Passengers v. Cunard
Line, Ltd., 31 F.3d 1184, 1186 (D.C. Cir. 1994). Dismissal
is not required. Rather, the court may “suspend the matter
pending agency resolution.” Lipton v. MCI Worldcom, Inc.,
135 F. Supp. 2d 182, 190 (D.D.C. 2001). The doctrine should
be invoked sparingly. United States v. McDonnell Douglas
Corp., 751 F.2d 220, 224 (8th Cir. 1984).

There is “no fixed formula” for application of the primary
jurisdiction doctrine. W. Pac. R. Co., 352 U.S. at 64. This
court has generally considered four factors: “(1) whether
the issue is within the conventional expertise of judges;
(2) whether the issue lies within the agency’s discretion
or requires the exercise of agency expertise; (3) whether
there is a substantial danger of inconsistent rulings; and
(4) whether a prior application to the agency has been
made.” APCC Servs., Inc. v. WorldCom, Inc., 305 F. Supp. 2d
1, 13 (D.D.C. 2001). Page 18

The central question that WMATA argues the court should
not address is whether various patterns or practices not
matching those enumerated in the DOT regulation governing
capacity constraints (untimely pickups, denials or missed
trips, excessive trip lengths) constitute patterns or
practices that “significantly [limit] the availability of
service to ADA paratransit eligible persons.” 49 C.F.R.
§ 37.131(f)(3). WMATA argues that when DOT
promulgated its regulation prohibiting such practices, and
in that regulation stated that such practices “include, but
are not limited to” missed trips, untimely pickups, and
excessive trip lengths, the agency functionally reserved
determination of which unenumerated practices fall within
the ambit of the “include, but not limited to” language to

The court declines to apply the doctrine. First, the court
disagrees with WMATA regarding the implication of the
regulatory language. Rather than manifesting a reservation
of issues to the agency, the court reads the “include, but
not limited to” and “any operational pattern or practice”
language as manifesting agency intent that the regulations
be read and applied both broadly and without agency
involvement. Second, application of the factors this court
has traditionally considered favors the court’s retention
of the claims. Whether or not a practice limits the
availability of a public service, particularly when
availability is measured from the perspective of the user
— as it must be measured here — is a question
that can be answered by reference to the knowledge and
experience of lay persons, including judges.[fn7] It
requires no Page 19 particular technical, policy, or
administrative expertise. “[W]hen the agency’s position is
sufficiently clear or nontechnical . . . courts should be
very reluctant to refer. . . . [Additionally, t]he court
must always balance the benefits of seeking the agency’s
aid with the need to resolve disputes fairly yet as
expeditiously as possible.” Mississippi Power & Light Co.
v. United Gas Pipe Line Co., 532 F.2d 412, 419 (5th Cir.
1976). Moreover, this dispute is not currently pending
before an administrative body, as plaintiffs have acted
within their statutory rights to bring an action before
this court. Finally, the court sees little danger of
inconsistent rulings on the questions presented here.
Satisfied that agency expertise is not required to resolve
the questions before it, the court sees no need to create
further delay by referring this matter for agency

4. Whether Plaintiffs Can Bring Their Claims Under Both
§ 1983 and the Disability Statutes

In addition to their ADA and Rehabilitation Act claims,
plaintiffs also seek injunctive relief against defendants
pursuant to § 1983 of Title 42. 2nd Am. Compl.
§§ 153-154. This count must be dismissed as
to WMATA because it is not a “person” and therefore cannot
be sued under the statute. Lucero-Nelson v. WMATA, 1 F.
Supp. 2d 1, 7-8 (D.D.C. 1998).[fn8] As to Requa, Page 20
he argues that the ADA provides an exclusive remedy for
violations thereof, therefore precluding § 1983
claims against him.

Claims under § 1983 are “generally and
presumptively available . . . for claimed violations of
federal law.” Livadas v. Bradshaw, 512 U.S. 107, 133
(1994). Such claims may be precluded, however, where
Congress either has expressly precluded them or has
established, for a given federal law, a “comprehensive
enforcement scheme that is incompatible with individual
enforcement under § 1983.” Blessing v. Freestone,
520 U.S. 329, 341 (1997).

A plaintiff suing pursuant to § 1983 bears an
initial burden of demonstrating that the federal statute
she claims has been violated creates an individually
enforceable right. Rancho Palos Verdes v. Abrams, 544 U.S.
113, 120 (2005). This showing creates a “rebuttable
presumption” that the right identified is enforceable under
§ 1983. Blessing, 520 U.S. at 341. “The defendant
may defeat this presumption by demonstrating that Congress
did not intend that remedy for a newly created right.”
Rancho Palos Verdes, 544 U.S. at 120. To do so, the
defendant must make “the difficult showing that allowing
§ 1983 actions to go forward in these circumstances
`would be inconsistent with Congress’ carefully tailored
scheme.'” Blessing, 520 U.S. at 346 (quoting Golden State
Transit Corp. v. Los Angeles, 493 U.S. 103, 107 (1989));
see also Wright v. City of Roanoke Redev. & Housing Auth.,
479 U.S. 418, 423-24 (1987) (“`We do not lightly conclude
that Congress intended to preclude reliance on § 1983
as a remedy’ for the deprivation of a federally secured
right.” (quoting Smith v. Robinson, 468 U.S. 992, 1012
(1984))). Whether a defendant can successfully defeat the
presumption may depend on whether and in what manner the
statute in question provides its own remedies. The Supreme
Court has held that where “an express, private means of
redress in the statute” in question exists, an Page 21
“ordinary inference” arises “that the remedy provided in
the statute is exclusive.” Rancho Palos Verdes, 544 U.S. at
121-22. This inference may be overcome by evidence of
congressional intent that the remedy not be exclusive.
Ibid. “The crucial consideration” in determining whether
individual enforcement via § 1983 is available “is
what Congress intended.” Id. at 120 (quoting Robinson, 468
U.S. at 1012). In making this determination, courts “look
first, of course, to the statutory language, particularly
to the provisions made therein for enforcement and relief.
Then [they] review the legislative history and other
traditional aids of statutory interpretation to determine
congressional intent.” Middlesex County Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13 (1981).[fn9] Page

Title II of the ADA does not manifest an intent to preclude
use of § 1983 to remedy violations of its mandates.
First, the court determines that the ADA contains an
“express private means of redress in the statute itself.”
See Rancho Palos Verdes, 544 U.S. at 121.[fn10] The Act
incorporates into its scheme the enforcement provisions of
the Rehabilitation Act. See 42 U.S.C. § 12133
(citing 29 U.S.C. § 794a). In turn, the
Rehabilitation Act incorporates the rights and remedies
provided in Title VI of the Civil Rights Act of 1964. 29
U.S.C. § 794a(a)(2) (citing 42 U.S.C.
§§ 2000d et seq.). And though Title VI does
not contain an “express private means of redress in the
statute itself” — the private right of action under
Title VI is implied (see Sandoval, 532 U.S. at 279-80)
— the court may presume that when Congress
incorporated Title VI’s remedies into the Rehabilitation Act
and the ADA, it did so with the intent that these remedies
include the private right of action which courts had
previously (and consistently) held to exist under Title VI.
See Cannon v. Univ. of Chicago, 441 U.S. 677, 696 (1979)
(reciting pre-1973 decisions finding an implied private
right of action under Title VI, and relying on the
existence of those decisions in finding an implied private
right of action for violations of Title IX);[fn11] Blitz v.
Donovan, 740 F.2d 1241, 1245 (D.C. Cir. 1984) (“Congress is
deemed to know the . . . judicial gloss given to certain
language and thus adopts the existing interpretation unless
it affirmatively acts to change the meaning.” (quoting
Florida National Guard v. FLRA, 699 F.2d 1082, 1087 (11th
Cir. 1983))). The court therefore deems § 12133 as
setting forth an “express Page 23 private means of
redress.” Accordingly, an ordinary inference arises that
Congress intended for the means of redress in the statute
to be exclusive. Rancho Palos Verdes, 544 U.S. at 121-22.

The court must next determine whether evidence of
Congress’s intent, either textual or extratextual, exists
that sufficiently overcomes this inference. It does.
Section 501(b) of the ADA states: “Nothing in this chapter
shall be construed to invalidate or limit the remedies,
rights, and procedures of any Federal law . . . that
provides greater or equal protection for the rights of
individuals with disabilities than are afforded by this
chapter.” 42 U.S.C. § 12201(b). Also, as plaintiffs
point out, the legislative history of the ADA confirms that
this provision was intended in part specifically to ensure
that remedies under § 1983 were available to redress
violations of the Act. The House Judiciary Committee Report
states that this section “provides that the ADA does not
preempt other applicable or greater protection. For Title
II, like Section 504 of the Rehabilitation Act, this
includes remedies available under 42 U.S.C. [§] 1983
and under state law claims.” H.R. Rep. No. 101-485, Part
III (1990) at 52 (emphasis added); see also H.R. Rep. No.
101-485, Part II (1990) at 135 (“[A]ll of the rights,
remedies and procedures that are available to people with
disabilities under other federal laws . . . are not
preempted by this Act.”).[fn12] Given these manifestations
of Congressional intent to preserve the availability of
remedies under § 1983, the court holds that a
private right of action is available under that Page 24
provision for violations of the ADA, in addition to the
right of action arising from the statute itself.

The Rehabilitation Act contains no provision similar to
§ 501(b) of the ADA. As noted, § 505 of the
Act simply incorporates “[t]he remedies, procedures, and
rights set forth in title VI of the Civil Rights Act of
1964” for persons harmed by § 504 violations. 29
U.S.C. § 794a(a)(2). The legislative history of this
provision, which was adopted in 1978, five years after the
initial enactment of the Act, is unilluminating. See H.R.
Rep. No. 95-1149, at 21, 41 (1978); H.R. Conf. Rep. No.
95-1780 (1978). Absent any evidence of congressional intent
apart from § 505 itself, the court must conclude
that the ordinary inference raised by the statute’s
incorporation of an express private means of redress has
not been overcome. The private right of action provided for
by § 505 therefore is exclusive. Plaintiffs’ §
1983 claims, insofar as they allege violations of the
Rehabilitation Act, are dismissed.[fn13] Page 25