The opinion of the court was delivered by: KATZ
Plaintiffs, on behalf of the disabled, attack regulations which purport to carry out legislation protecting the rights of the handicapped and elderly to public transportation services. The regulations create a 3% cost cap as a safe harbor, regardless of the level of service provided by transit authorities to the disabled. I find this 3% formula as well as the inclusion of the cost of a "half-fare" program in the calculation of the 3 % spending cap to be arbitrary. The six year phase-in period of the regulations, however, is reasonable. In addition, I find that Congress has not yet legislated mainstreaming for the disabled in public transportation.
Americans Disabled for Accessible Public Transportation (ADAPT), et al. and Eastern Paralyzed Veterans Association (EPVA), et al. have filed respectively, a motion for summary judgment and a motion for partial summary judgment, seeking to invalidate portions of regulations (the "regulations") promulgated by the Secretary (the "Secretary") of the United States Department of Transportation ("DOT"), on the bases that the Secretary's 1986 regulations fail to provide to disabled persons all of the services and rights that they have been granted by federal disability civil rights statutes and that the regulations arbitrarily limit the obligations of transit operators who receive federal funds to provide transportation services to the handicapped. Defendant has filed a cross-motion for summary judgment.
STATUTORY AND REGULATORY BACKGROUND
In 1983 Congress passed § 317(c) of the Surface Transportation Assistance Act of 1982 ("STAA"), (49 U.S.C. § 1612(d)), directing the Secretary of DOT to promulgate final regulations establishing "minimum criteria for the provision of transportation services to handicapped and elderly individuals by recipients of Federal financial assistance." 49 U.S.C. § 1612(d).
These regulations were to carry out, pursuant to § 317(c), three earlier Congressional directives concerning the rights of the elderly and handicapped to use public transportation. First, in § 16(a) of the Urban Mass Transportation Act of 1964, as amended (49 U.S.C. § 1612(a)), Congress enunciated a national policy that:
elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured; and that all Federal programs offering assistance in the field of mass transportation (including the programs under this Act) should contain provisions implementing this policy.
49 U.S.C. § 1612(a). Secondly, in § 165(b) of the Federal-Aid Highway Act of 1973, (23 U.S.C. § 142), Congress directed that: "the Secretary of Transportation shall assure that projects receiving Federal financial assistance . . . shall be planned and designed so that mass transportation facilities and services can effectively be utilized by elderly and handicapped persons." 23 U.S.C. § 142. Thirdly, § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) provides that:
No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
The regulations, promulgated by the Secretary in 1986, provide for a local option approach which permits local transit authorities to comply with the above legislation in any one of three ways: either by using accessible buses (operating on fixed routes on a scheduled or on-call basis), using a "special service" with accessible vehicles providing door to door service, or by combining accessible fixed route service with special service. Local transit authorities may elect which of these three methods to use, but the service that they provide must meet each of six specified criteria. 49 C.F.R. § 27.97 (1986).
The service must meet the following six criteria:
(1) all persons who, by reason of handicap, are physically unable to use the recipient's bus service for the general public must be eligible to use the service for handicapped persons;