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EASTERN PARALYZED VETERANS ASSN. OF PENNSYLVANIA

June 30, 1988

Eastern Paralyzed Veterans Association of Pennsylvania, Inc., et al.
v.
Dudley R. Sykes, Commissioner, Philadelphia Department of Public Property, City of Philadelphia, and Southeastern Pennsylvania Transportation Authority



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE

 This litigation focuses on the use of federal funds by the City of Philadelphia ("the City") and the South Eastern Pennsylvania Transportation Authority ("SEPTA") for the renovation of various subway stations and whether or not the plaintiffs, an organization of wheelchair-bound individuals and its members, are discriminated against by the renovations in violation of various federal statutes and regulations.

 Presently before the court is SEPTA's motion and accompanying memoranda for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have filed memoranda opposing SEPTA's motion. After considering the parties' arguments, the complaint, and the applicable legal standards, I have concluded that SEPTA's motion should be denied. My reasoning follows.

 I.

 Such analysis must begin with plaintiff's amended complaint. The amended complaint alleges that the City and SEPTA have failed and continue to fail to comply with federal statutes and regulations which require that transit facilities be made accessible to the handicapped when such transit facilities are renovated. Plaintiffs claim that the defendants' renovation of the Philadelphia subway system violates section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. § 794, the Architectural Barriers Act of 1968, as amended, 42 U.S.C.A. §§ 4151-4157, section 16(a) of the Urban Mass Transportation Act, as amended by section 317(c) of the Surface Transportation Act of 1982, 49 U.S.C.A. § 1612(a), (d), section 165 of the Federal-Aid Highway Act, 23 U.S.C.A. § 142 note, and the regulations promulgated pursuant to those statutes.

 On a previous occasion this court reviewed the interplay among the various statutes, regulations, judicial decisions, and agency pronouncements implicated in this action. Eastern Paralyzed Veterans Ass'n of Pennsylvania v. Sykes, 676 F. Supp. 597 (E.D. Pa. 1987). As SEPTA has not challenged this prior analysis and my own independent review of the statutes and regulations confirms this prior analysis, I see no reason to recapitulate it here. See also Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989, 99 L. Ed. 2d 503, 108 S. Ct. 1293 (1988).

 II.

 In support of its motion for judgment on the pleadings SEPTA advances four arguments: (1) section 504 of the Rehabilitation Act does not afford plaintiffs a private right of action and that plaintiffs' complaint must be governed by the Architectural Barriers Act and section 502 of the Rehabilitation Act; (2) the Architectural Barriers Act does not provide an independent private right of action and that therefore plaintiffs must first exhaust their administrative remedies under the Architectural Barriers Act and section 502 of the Rehabilitation Act; (3) section 165(b) of the Federal-Aid Highways Act does not provide a cause of action; and (4) section 16 of the Urban Mass Transportation Act does not provide a private cause of action.

 A.

 SEPTA's first argument fails -- and with it SEPTA's motion for judgment on the pleadings -- because section 504 of the Rehabilitation Act *fn1" does afford a private right of action to handicapped persons who are discriminated in some manner under a program which receives federal financial assistance. In Disabled in Action v. Sykes, the Third Circuit Court of Appeals reviewed this court's decision in a parallel lawsuit. 833 F.2d 1113 (3d Cir. 1987). The plaintiffs in that litigation based their complaint on section 504 of the Rehabilitation Act, section 16(a) of the Urban Mass Transportation Act, section 165 of the Federal Aid Highways Act, the regulations promulgated pursuant to those statutes, and 42 U.S.C.A. § 1983. The Third Circuit expressly stated:

 
Section 504 affords a private right of action to handicapped persons who are excluded from federally funded programs. [string citation omitted.]
 
The plaintiffs also claimed that the defendants had violated section 165 of the Federal-Aid Highways Act, 23 U.S.C. § 142 note, section 16(a) of the Urban Mass Transportation Act, as amended by section 317(c) of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 1612(a), (d), the regulations applicable to these statutes, and 42 U.S.C. § 1983. We need not reach those contentions in light of our disposition under Section 504 of the Rehabilitation Act.

 833 F.2d at 1116 n.5. Accordingly, plaintiffs may prosecute their complaint pursuant to section 504 of the Rehabilitation Act. *fn2"

 B.

 The second prong of SEPTA's first argument -- that plaintiffs must proceed under the Architectural Barriers Act and section 502 of the Rehabilitation Act -- also fails. Simply stated, in light of the recognition that section 504 of the Rehabilitation Act provides a private cause of action and the fact that Congress has not empowered the Architectural and Transportation Barriers Compliance Board ("ATBCB") "to make final determinations with regard to compliance with section 504 of [the Rehabilitation Act] regarding architectural . . . barriers confronting handicapped individuals," *fn3" plaintiffs should not be limited to proceeding only under the Architectural Barriers Act, section 502 of the Rehabilitation Act and the regulations promulgated thereunder.

 To begin with, the regulations which lie at the heart of this case, 49 C.F.R. §§ 27.61-27.67 (1979) (collectively referred to as "Subpart C"), were promulgated pursuant to section 504 of the Rehabilitation Act, sections 3, 5, and 16 of the Urban Mass Transportation Act, and section 165(b) of the Federal-Aid Highway Act. 44 Fed.Reg. 31443, 31468 (1979); 46 Fed.Reg. 37488, 37492 (1981). It is equally clear that Subpart C reflects the requirements found in the Architectural Barriers Act and the regulations promulgated thereunder. 44 Fed.Reg. 31442, 31450 *fn4" ; see also the Department of Transportation's amicus curiae brief at pp. 12-13 n.9. The Third Circuit has also noted the close relationship between Subpart C and the regulations adopted pursuant to the Architectural Barriers Act.

 833 F.2d at 1118-19 n.7. As Subpart C reflects the requirements contained in the GSA's regulations, it makes little sense to adopt SEPTA's argument which would require plaintiff to proceed under Architectural Barriers Act and related regulations but prohibit plaintiffs from proceeding under section 504 of the Rehabilitation Act.

 Moreover, the opinion of the district court in Disabled in Action of Pennsylvania v. Pierce, 606 F. Supp. 310 (E.D. Pa. 1985) (" Pierce "), specifically held that a handicapped plaintiff is not limited to proceeding under the Architectural Barriers Act and related regulations. Judge Fullam, after a thorough review of the Rehabilitation Act's legislative history, stated: "It appears that § 504 was intended by Congress to be an independent weapon in its barrier-free arsenal. Nor does defendants' 'specific controls the general' argument convince me otherwise." 606 F. Supp. at 314 (citing H.Conf.Rep. No. 1750, 95th Cong., 2nd Sess. 90, 91, reprinted in 1978 U.S. Code Cong. & Ad. News, 7312, 7375, 7401, 7402). The court also found that the ...


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