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DISABLED IN ACTION OF PENNSYLVANIA v. PIERCE

March 26, 1985

DISABLED IN ACTION OF PENNSYLVANIA, et al.
v.
SAMUEL R. PIERCE, in his capacity as SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al.



The opinion of the court was delivered by: FULLAM

 FULLAM, J.

 The essence of plaintiffs' complaint is that on January 7, 1985, the U.S. Department of Housing and Urban Development (HUD) moved into new local quarters at 105 S. 7th Street in Philadelphia ("The Liberty Square Building"); according to plaintiffs, the newly renovated structure does not comply with federal requirements for access to the handicapped.

 Defendants are the Secretary of HUD, the Administrator of this HUD region (Region III), the Acting Administrator of the General Services Administration (GSA), and the Region III GSA Administrator.

 Plaintiffs Disabled in Action of Pennsylvania and Handicap Advocacy Network of Delaware, Inc., are described as organizations which have as their primary goal the enforcement of federal laws calling for "barrier-free" buildings. The three individual plaintiffs are physically handicapped persons who have full mobility through the use of wheelchairs, but who cannot gain entrance to the new HUD building in this manner. The plaintiffs charge that because of HUD's failure to provide barrier-free access, they cannot share in HUD's programs, seek employment with HUD, monitor HUD's activities, or file complaints with HUD on behalf of other disabled people.

 Plaintiffs contend that the leased building, which was renovated expressly for HUD under the direction of the GSA, fails to meet federal requirements in the following ways:

 
1. The primary front entrance is inaccessible to wheelchair users and others with mobility disabilities (there are no ramps; only "extremely steep and slippery steps");
 
2. The entrance door and other internal doors cannot be opened in a single motion. Their handles are difficult to grasp and operate with one hand; and
 
3. Elevator buttons are too high to be reached by a person in a wheelchair. Nor do the elevators have braille markings or direction-indicator bells for the visually impaired.

 As relief, plaintiffs ask the court (1) to certify their action as a class action; (2) to declare defendants' actions to be violative of § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); (3) to enjoin, preliminarily and permanently, defendants from denying plaintiffs equal access; (4) to direct defendants to submit and implement a plan which outlines the steps which defendants will take in compliance; and (5) to award costs and attorneys fees to plaintiffs.

 A hearing on the motion for preliminary injunction was scheduled for March 13. On the eve of the hearing, defendants submitted their response in the form of a motion to dismiss. Defendants contend (1) that plaintiffs' claim is properly founded on the Architectural Barriers Act (42 U.S.C. § 4151 et seq.) and not the Rehabilitation Act; (2) that under the Barriers Act, plaintiffs must exhaust their administrative remedies; (3) that, even assuming that plaintiffs may bring suit pursuant to § 504 of the Rehabilitation Act, they have not shown that they are "otherwise qualified" within the meaning of the Act; *fn1" and, finally, (4) that the Liberty Square Building, still undergoing renovations, is now in compliance with the appropriate federal standards.

 At the preliminary injunction hearing, I sought counsel's viewpoint on the interplay between the two statutes. It was plaintiffs' counsel's view that the Rehabilitation Act provided a remedy independent of the Barriers Act. Defendants' counsel pointed to the administrative enforcement and implementation scheme in place under the Barriers Act as evidence that it was the controlling statute. In order to consider the matter further and to allow plaintiffs an opportunity to respond to the newly filed motion to dismiss, I adjourned the hearing for a period of two weeks, and stated that I would rule on the motion to dismiss in the interim; if I were to deny the motion, I would then hear evidence regarding irreparable harm. *fn2"

 As I see it, the crucial issue to be resolved at this point in the case is whether, in the present circumstances, the Achitectural [Architectural] Barriers Act preempts § 504 of the Rehabilitation Act with respect to the regulation of the physical accessibility of federal buildings. If so, plaintiffs would be obligated to resort to the administrative remedies provided in the Barriers Act before seeking judicial relief; if not, plaintiffs' challenge in this court would be proper.

 In 1968, Congress passed the Architectural Barriers Act, which provides that GSA, in conjunction with the Department of Health and Human Services (HHS), *fn3" "shall prescribe standards for the design, construction, and alteration of buildings . . . to insure whenever possible that physically handicapped persons ...


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