Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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45 X. ADMINISTRATIVE AND JUDICIAL ENFORCEMENT OF TITLE II OF THE ADA A. FTA Oversight, Complaints, and Monitoring Recipients of federal financial assistance provided by the FTA are subject to administrative enforce- ment.666 Public entities are subject to enforcement by the Department of Justice, regardless of whether they receive federal financial assistance.667 Private entities also are subject to regulations issued by the Department of Justice that implement Title III of the ADA, again regardless of whether they receive fed- eral financial assistance.668 The FTA is responsible for ensuring that grant- ees of FTA’s financial assistance are not discrimi- nating against individuals with disabilities.669 If there is a violation that is not resolved voluntarily, the DOT or the FTA may suspend or terminate FTA financial assistance or refer the matter to the Jus- tice Department.670 When it becomes necessary to suspend federal financial assistance, under 49 C.F.R. § 27.125(b), the FTA determines whether compliance may be obtained voluntarily; it advises the grantee of its failure to comply; and the Secretary of Transporta- tion, thereafter, makes “an express finding on the record, after opportunity for hearing, that the grantee has failed to comply.”671 There is also a process that permits an individ- ual or individuals to file a written complaint with the FTA not later than 180 days from the date of the alleged discrimination unless an extension is granted.672 B. Triennial Reviews In addition to annual reviews,673 FTA conducts triennial reviews of recipients of federal funding. 49 U.S.C. § 5307(f) provides: (2) Triennial review. At least once every 3 years, the Secre- tary shall review and evaluate completely the performance of a recipient in carrying out the recipient’s program, spe- cifically referring to compliance with statutory and admin- istrative requirements and the extent to which actual program activities are consistent with the activities pro- posed under subsection (c) of this section and the planning 666 FTA Circular, Ch. 12.1, p. 12.2 (discussing 49 C.F.R. § 37.11(a)). 667 Id. Ch. 12.2, pp. 12-1–12-2 (discussing 49 C.F.R. § 37.11(b)). 668 Id. Ch. 12.2, p. 12-1 (discussing 49 C.F.R. § 37.11(c)). 669 Id. Ch. 12.2, p. 12-1. 670 Id. 671 Id. Ch.12.4, p. 12-3. 672 Id. Ch. 12.6, pp. 12-4–12-5 (discussing 49 C.F.R. § 27.123(b)). 673 49 U.S.C. § 5307(f)(1) (2018). re quire ments.657 The term equivalent service in the demand responsive context means that the service made “available to individuals with disabilities, in- cluding individuals who use wheelchairs, is pro- vided in the most integrated setting appropriate to the needs of the individual and is equivalent to the service provided other individuals….”658 The term equivalent service means that when all aspects of a transportation system are analyzed in their entirely, equal opportunities exist for each individual with a disability to use the transportation system.659 Al- though a transit agency’s complementary paratran- sit service is measured against its fixed route service, the comparison for demand responsive service is be- tween riders without disabilities and riders with disabilities for whom the level of service must be equivalent when viewed in its entirety.660 Service characteristics for determining service equivalency include response time, fares, geographic area of service, hours and days of service, restric- tions or priorities based on trip purpose, availability of information and reservations capability, and any constraints on capacity or service availability.661 For example, the service characteristic for fares is that “for a given trip, the fare is the same for all riders.”662 D. Transit Agencies’ Responses to the Survey Thirty-one transit agencies responding to the survey reported that they provide a demand respon- sive system subject to the ADA; thirteen agencies do not.663 Of the thirty-one agencies providing demand responsive service, three agencies had claims or cases in the past five years alleging that their agency violated the ADA;664 however, twenty-eight agencies reported that they had no claims or cases in the past five years.665 657 Id. Ch. 7.6.1, pp. 7-13–7-13 and tab. 7-2. 658 Id. Ch. 7.4, p. 7-3 (quoting 49 C.F.R. § 37.77(c)). 659 Id. Ch. 7.4.3, p. 7-5 (discussing 49 C.F.R. § 37.77, app. D). 660 Id. Ch. 7.4.2, p. 7-4 and Ch. 7.4.3, p. 7-5 (discussing 49 C.F.R. § 37.77(c)). 661 Id. Ch. 7.4.2, p. 7-4 (discussing 49 C.F.R. § 37.77(c)). 662 Id. 663 See Appendix C, Summary of Transit Agencies’ Responses to Question 16. 664 See id. Summary of Transit Agencies’ Responses to Question 17. 665 See id.

46 the regulation that was in dispute. The plaintiff, who had cerebral palsy and was wheelchair-bound, was a qualified individual with a disability under the ADA. The plaintiff, who had used the defen- dant’s paratransit services for many years, claimed that he was injured while a passenger in a Dial-a- Lift van that the defendant Intercity Transit owned and operated. Although Donnelly alleged that the defendant violated six federal regulations,682 the court found that the issue was whether Donnelly could enforce 49 C.F.R. § 38.23(d)(7) by a private action.683 Even though the DOT regulation required the defendant to provide a shoulder harness for wheelchair users, the court stated that the requirement had “nothing to do with whether the Defendant provide[d] an appropriate level of service as defined by the 42 U.S.C. § 12143(a)….”684 The court held that, because the regulation imposed an obligation that was “nowhere to be found in the plain language of 42 U.S.C. § 12132(a),” the plaintiff could not enforce § 38.23(d)(7) by a private action under § 12132(a).685 In Ability Center of Greater Toledo v. City of Sandusky,686 the issues were whether the city failed to make proper accommodations for individuals with disabilities when the city renovated its side- walks and street curbs and whether it was liable for not having a transition plan to implement ADA requirements.687 Regarding the first issue, the Sixth Circuit held that 28 C.F.R. § 35.151, which applies to new construction and alterations, is enforceable by a private action because the regulation “effectu- ates a mandate of Title II.”688 Title II “demands” that public entities do more than simply refrain from intentionally discriminating against individu- als with disabilities.689 Title II “contemplates” that accommodations include the removal of “architec- tural barriers that impede disabled individuals from securing the benefits of public services.”690 There- fore, to assure than an individual is not denied the benefits of a public service, the city had to remove an architectural barrier of its own creation.691 As for the second issue, the court rejected the plaintiffs’ claim that 28 C.F.R. § 35.150(d), applica- ble to transition plans, is enforceable by a private 682 Id. at *3-4. 683 Id. at *13-14. 684 Id. at *14. 685 Id. at *15. 686 385 F.3d 901 (6th Cir. 2004). 687 Id. at 902. 688 Id. at 907. 689 Id. at 910 (citation omitted). 690 Id. at 907. 691 Id. at 911. process required under sections 5303, 5304, and 5305 of this title [49 U.S.C.S. §§ 5303, 5304, and 5305]. To the extent practicable, the Secretary shall coordinate such reviews with any related State or local reviews. (3) Actions resulting from review, audit, or evaluation. The Secretary may take appropriate action consistent with a review, audit, and evaluation under this subsection, includ- ing making an appropriate adjustment in the amount of a grant or withdrawing the grant.674 Forty-five agencies responding to the survey reported that they had a triennial review in the past five years.675 Thirteen agencies stated that they had an enhanced review in the past five years.676 Although nineteen agencies reported that a triennial review or an enhanced review resulted in adverse findings against their agency, there were no adverse findings against twenty-six agencies.677 Some transit agencies with adverse findings described the findings and how they resolved them.678 C. Private Right of Action Under Title II of the ADA Section 12133 of Title II incorporates the reme- dies, procedures, and rights in Section 505 of the Rehabilitation Act, which, in turn, are the same rem- edies, procedures, and rights provided in Title VI of the Civil Rights Act.679 Because it has been held that there is an implied right of action in Title VI, Title II of the ADA likewise is enforceable by a private right of action by individuals with disabilities who allege discrimination that violates Title II.680 The fact that there is a private right of action under Title II, however, does not mean that all alleged violations of the regulations may serve as a basis for a private action. For example, in Donnelly v. Intercity Transit,681 the court held that the plain- tiff did not have a private right of action based on 674 Id. § 5307(f)(2) and (3). See also FTA Circular, Ch. 12.2, pp. 12-1–12-2 (discussing 49 C.F.R. § 37.11). 675 See Appendix C, Transit Agencies’ Responses to Question 28(a). Two agencies said they had not. 676 See id. Transit Agencies’ Responses to Question 28(b). Enhanced reviews are implemented for triennial review areas that have the highest risk of non-compliance. https://www.transit.dot.gov/regulations-and-guidance/ program-oversight/oversight-reviews. 677 See id. Transit Agencies’ Responses to Question 28(c). Two agencies did not respond to the question. 678 See id. Transit Agencies’ Responses to Question 28(d). 679 42 U.S.C. § 12133 (2018) and 29 U.S.C. § 794a(a)(2) (2018). See 42 U.S.C. § 2000d-2000d-7. (2018). 680 King v. Sec’y Ind. Family & Soc. Servs. Admin, 2013 U.S. Dist. LEXIS 20746, at *10 (N.D. Ind. 2013). See also Barnes v. Gorman, 536 U.S. 181, 184-85, 122 S. Ct. 2097, 2100, 153 L. Ed. 2d 230 (2002). 681 No. C12-5650 KLS, 2012 U.S. Dist. LEXIS 163597, (W.D. Wash. Nov. 15, 2012).

47 to merely speculative, that the injury will be redressed by the relief requested.696 Furthermore, “[t]he ‘injury in fact’ requirement is satisfied differently depending on whether the plaintiff seeks prospective or retrospective relief.”697 When a plaintiff is seeking prospective relief, the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.… Past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.… The threatened injury must be “certainly impending” and not merely speculative.… A claimed injury that is contin- gent upon speculation or conjecture is beyond the bounds of a federal court’s jurisdiction.698 When a plaintiff is seeking retrospective relief, if the plaintiff has suffered a past injury that is “con- crete and particularized,” the “injury in fact” require- ment is satisfied.699 2. Whether “Tester” Standing Exists Under the ADA In Tandy v. City of Wichita,700 the question was whether there was “tester” standing to challenge alleged ADA violations. In Tandy, the plaintiff sued the city of Wichita that operates the Wichita Metro- politan Transit Authority (Wichita Transit) for alleged violations of Title II of the ADA and the Rehabilitation Act.701 The Topeka Independent Living Resource Cen- ter provides both direct and indirect advocacy ser- vices to individuals with disabilities in the community. The center had responded to com- plaints about the accessibility of Wichita Transit’s fixed route bus system by holding a training ses- sion and advising attendees (i.e., testers) to attempt to ride Wichita Transit’s fixed route buses and to document any problems.702 The standing doctrine requires that a plaintiff have “a sufficient personal stake in a dispute to ensure the existence of a live case or controversy which renders judicial resolu- tion appropriate;”703 nevertheless, the court held that tester standing exists under Title II of the ADA,704 as well as under the Rehabilitation Act.705 Moreover, because several plaintiffs “established that they each suffered a past invasion of their 696 Tandy v. City of Wichita, 380 F.3d. 1277, 1283 (10th Cir. 2004) (citations omitted). 697 Id. (citation omitted). 698 Id. at 1283-84 (citations omitted). 699 Id. at 1284. 700 380 F.3d 1277 (10th Cir. 2004). 701 Id. at 1280. 702 Id. at 1281. 703 Id. at 1283. 704 Id. at 1286. 705 Id. at 1287. action under Title II. Although the regulation proce- durally encourages public entities to consider and plan ways to accommodate individuals with disabili- ties, “there is no indication that a public entity’s fail- ure to develop a transition plan harms disabled individuals, let alone in a way that Title II aims to prevent or redress.”692 D. Stating a Claim Under Title II For a plaintiff to state a “viable claim” for a viola- tion of Title II, a plaintiff must prove (1) that he or she is a qualified individual with a disability; (2) that he or she was either excluded from participation in or denied the benefits of some public entity’s services, pro- grams, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff ’s disability.693 The Tenth Circuit has identified two types of claims: (1) exclusion from or a denial of benefits and (2) discrimination,694 both of which require proof that any exclusion from or denial of benefits or any discrimination was because of the plaintiff ’s disability.695 E. Standing 1. Requirements for Article III Standing Under the Constitution In general, for article III standing under the U.S. Constitution, a plaintiff must establish that he or she (1) … suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the chal- lenged action of the defendant; and (3) it is likely, as opposed 692 Id. at 914. 693 J.V. ex. rel. C.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016). In Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015), the Sixth Circuit stated that for a prima facie case under Title II “a plaintiff must show that: (1) she has a disability; (2) she is other- wise qualified; and (3) she was being excluded from par- ticipation in, denied the benefits of, or subjected to dis- crimination under the program because of her disability.” 694 J.V. ex. rel. C.V., 813 F.3d at 1295 (citation omitted). 695 See also Metro Treatment of Me., LP v. City of Ban- gor, No. 1:16-cv-00433-JAW, 2016 U.S. Dist. Lexis 157619, at *22-23 (D. Me. Nov. 15, 2016)) (stating that section 504 of the Rehabilitation Act “prohibits the same type of dis- crimination by a recipient of federal funds: ‘No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, 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.’”) (quoting 29 U.S.C. § 794(a)).

48 the regulations broadly prohibit “‘[a]ny operational pattern or practice that significantly limits the availability of service.’”715 Indeed, the regulations only exclude “from the class of prohibited patterns a narrow set of ‘operational problems … attributable to causes beyond the control of the entity.’”716 F. Class Actions Under the ADA Against Transit Agencies 1. Certification Under Rule 23, Federal Rules of Civil Procedure Plaintiffs have brought class actions against transit agencies under the ADA, as well as the Reha- bilitation Act. However, transit agencies responding to the survey reported that there were no class actions against their agencies in the past five years for alleged violations of Title II of the ADA.717 Rule 23 of the Federal Rules of Civil Procedure applies to the certification of class actions. Certifica- tion is permissible only when a class is so numerous that joinder of all members is impracticable; there are questions of law or fact that are common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.718 In addition, the Rules permit certification when “‘the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corre- sponding declaratory relief with respect to the class as a whole.’”719 A class action in Bacal v. Southeastern Pennsyl- vania Transportation Authority720 sought injunctive relief and compensatory damages for the plaintiffs. The plaintiffs claimed that SEPTA provided inade- quate transit services to individuals with disabili- ties in violation of 42 U.S.C. § 12143(a) and 49 C.F.R. §§ 37.121-.155.721 The plaintiffs alleged that the 715 Id. at 19 (quoting 49 C.F.R. § 37.131(f)(3)). 716 Id. (citation omitted). 717 See Appendix C, Summary of Transit Agencies’ Reponses to Question 21. 718 Anderson v. Rochester-Genesee Reg’l. Transp. Auth., 206 F.R.D. 56, 70 (W.D.N.Y. 2001), supplemental opinion, 205 F. Supp. 2d 106 (W.D.N.Y. 2002), aff’d in part, rev’d in part, remanded on other grounds 337 F.3d 201 (2d Cir. 2003) (affirming summary judgment on plaintiffs’ claims for injunctive relief but reversing summary judgment on claim for noncompliance with the plan submitted to the Secretary of Transportation). 719 Id. at 70-71 (quoting Fed. R. Civ. P. 23(b)(2)). 720 No. 94-6497, 1995 U.S. Dist. LEXIS 6609 (E.D. Pa. May 15, 1995). 721 Id. at *1-2. statutory rights,”706 they had standing to seek damages. 3. Non-Profit Corporations’ Standing Under the ADA In Raver v. Capitol Area Transit,707 the plaintiffs included the Center for Independent Living of Cen- tral Pennsylvania (CILCP), a non-profit corporation whose clients have disabilities. One of the purposes of CILCP is to assure that individuals with disabili- ties have equal access to mass transportation facili- ties.708 The court held that, although the CILCP is not a person with a disability, the non-profit corpo- ration had standing to bring an action under the ADA on behalf of individuals with disabilities.709 4.Standing for Class Actions As for standing in class actions, in Disability Rights Council of Greater Washington v. Washington Metropolitan Area Transit Authority,710 the plaintiffs alleged that, because WMATA engaged in a variety of “‘operational patterns or practices’ that signifi- cantly limit the availability of paratransit services,”711 WMATA failed to provide a level of paratransit service comparable to WMATA’s fixed route service. A federal district court in the District of Columbia issued several key findings. First, the court found that the “long-standing rule” is that after a “‘class is properly certified, stat- utory 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.’”712 Second, to demonstrate that they had standing, the plaintiffs did not have to show that their claims were “legally meritorious.”713 Third, the regulations implementing the ADA do not limit the “types of ‘patterns or practices’”714 about which the plaintiffs may complain, because 706 Id. at 1289. 707 887 F. Supp. 96 (M.D. Pa. 1995) (cited in Liberty Resources v. Southeastern Pa. Trans. Auth., 155 F. Supp. 2d 242 (E.D. Pa. 2001) (stating that “Congress intended that standing under the ADA be limited only by the mini- mum constitutional constraints of Article III”). 708 Raver, 887 F. Supp. at 97. 709 Id. 710 239 F.R.D. 9 (D. D.C. 2006), motion denied by, motion granted by, Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., No. 04-498 (HHK/ JMF), 2007 U.S. Dist. LEXIS 39605 (D. D.C., June 1, 2007). 711 Id. at 13 (citation omitted). 712 Id. at 15 (citation omitted). 713 Id. at 17 (citation omitted). 714 Id. at 18.

49 stated that both the ADA and the Rehabilitation Act prohibit discrimination against persons with AIDS.732 The court observed that, even though hav- ing AIDS means that a person has “qualifying fac- tors,” MetroLink’s Program Application made AIDS a “nonqualifying factor” for the program.733 The plaintiff belonged “to a group of individuals with AIDS who are being classified for different treat- ment than other disabled persons by being denied the benefits of a federally funded, public reduced fare program, and his classification utterly fail[ed] to relate to any conceivable legitimate governmental purpose.”734 The court ruled that the Metro Link Reduced Fare Program, on its face, discriminated against persons with AIDS solely because they have AIDS.735 The program excluded “persons with the disability of AIDS, inter alia, from participation in the pro- gram, without even a rational explanation, let alone a ‘rational basis,’ for doing so.”736 Even if the pro- gram were “assessed under the least exacting stan- dard, the rational basis test,” the program failed to satisfy the requirements of the Equal Protection Clause of the Fourteenth Amendment.737 Thus, it did not “require a great leap” for the court to find that Metro Link was liable under the ADA.738 3.Class Action for Failure to Provide Next-Day Service In Anderson v. Rochester-Genesee Regional Transportation,739 a class action, 12 individuals with disabilities and a disability rights organiza- tion alleged that the defendants’ paratransit ser- vice violated the ADA because they failed to provide next-day service. The complaint alleged that the defendants required riders to call to confirm their ride, a practice that limited the availability of para- transit service.740 The Second Circuit held that the transit agency violated DOT regulations by failing to design a program to provide next-day ride requests for eligible riders and by denying a sub- stantial number of paratransit rides in violation of the ADA.741 732 Id. at 1130. 733 Id. at 1131. 734 Id. at 1134 (original emphasis omitted). 735 Id. at 1131. 736 Id. at 1132. 737 Id. 738 Id. 739 337 F.3d 201 (2d Cir. 2003), on remand, complaint dismissed, 332 F. Supp. 2d 540 (W.D.N.Y. 2004). 740 Id. at 204. 741 Id. at 213, 215. defendants’ paratransit service discriminated against persons with disabilities, inter alia, because requests made a day in advance routinely were not met; requested rides were not scheduled at the requested times; trips were routinely excessively long; and the paratransit fare system was not comparable to the fare system for fixed route riders.722 At issue was whether the plaintiffs’ claim met the prerequisites in Federal Rule of Civil Procedure 23(a) for a class action.723 First, the court had no dif- ficulty finding that the number of plaintiffs satisfied the Rule’s “numerosity” requirement.724 Second, because there were questions of law or fact that were common to the class, the plaintiffs met the “commonality” requirement.725 Third, the plaintiffs satisfied the Rule’s “typicality” requirement. That is, the plaintiffs’ individual circumstances were not “markedly different from those of the proposed class,”726 and the plaintiffs’ individual legal theories for their claims did not differ from the theories for the claims of the proposed class. Fourth, the plain- tiffs’ individual interests were not “antagonistic to the interests of the members of the proposed class,”727 and the plaintiffs’ attorneys were “qualified, experi- enced, and generally able to conduct the litigation.”728 Finally, a denial of class certification would create a risk that the court’s orders would “not run to the entire class”; thus, the court rejected the defendants’ argument that class certification was an unneces- sary “formality.”729 2. Class Action for Discriminating Against a Person with AIDs In Hamlyn v. Rock Island County Metropolitan Mass Transit District,730 the plaintiff sued the Rock Island County Metropolitan Mass Transit District (Metro Link) because of its alleged policy denying equal access to its reduced fare program solely because the plaintiff had AIDS.731 The court, recog- nizing that AIDS is a disability under federal law, 722 Id. at *3-4. 723 Id. at *5-6. 724 Id. at *9. The court denied without prejudice the motion for class certification regarding the plaintiffs’ pro- posed subclass. Id. at *10-11. 725 Id. at *10 (stating that “[t]he commonality require- ment will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the pro- spective class”). Id. 726 Id. at *13. 727 Id. at *14. 728 Id. 729 Id. at *22. 730 986 F. Supp. 1126 (C.D. Ill. 1997). 731 Id. at 1128.

50 gain access to the 9-1-1 system.”749 On the defendants’ second motion for summary judgment, the district court concluded that the plaintiffs were not entitled to compensatory damages because there was no evi- dence of the city’s intentional discrimination or delib- erate indifference.750 The Ninth Circuit, which affirmed the district court’s judgment, stated that the Justice Depart- ment’s regulations that were applicable to the case “require that ‘telephone emergency services, includ- ing 911 services, shall provide direct access to indi- viduals who use [telecommunication devices] and computer modems.’”751 The court found, however, that there was no evidence of any intentional dis- crimination, deliberate indifference, or discrimina- tory animus by the city toward the plaintiffs.752 Although the plaintiffs were not entitled to dam- ages, the appellate court stated that equitable relief, i.e., the injunction, was sufficient to remedy the plaintiff ’s “problem” and that, in the meantime, the city’s corrective action had solved the problem.753 However, in Munson v. Del Taco, Inc.,754 the court held that “[i]ntentional discrimination need not be shown to establish a violation of the ADA’s access requirements….”755 In the ADA, Congress “sought to eliminate all forms of invidious discrimination against individuals with disabilities, including not only ‘outright intentional exclusion,’ but also ‘the discriminatory effects of architectural, transporta- tion, and communication barriers and the failure to make modifications to existing facilities.’”756 H. Compensatory Damages for Violations of the ADA Because of Deliberate Indifference Some courts have held that plaintiffs with dis- abilities may recover compensatory damages when- ever a public entity’s violation of the ADA was intentional discrimination or occurred because of 749 Id. at 673. 750 Id. at 672. 751 Id. (quoting 28 C.F.R. § 35.162). The court relied also on a Justice Department manual entitled The Ameri- cans with Disabilities Act: Title II Technical Assistance Manual (stating that “[a]dditional dialing or space bar requirements are not permitted”), https://www.ada.gov/ taman2.html (last accessed June 20, 2018). 752 Id. at 675. 753 Id. 754 46 Cal. 4th 661, 208 P.3d 623, 94 Cal. Rptr. 3d 685 (Cal. 2009). 755 Id. at 669, 208 P.3d at 628, 94 Cal. Rptr. 3d at 691 (emphasis supplied). 756 Id. at 669-70, 208 P.3d at 628, 94 Cal. Rptr. 3d at 691 (citations omitted). G. Liability for Compensatory Damages for Intentional Violations of the ADA As also discussed in Subpart H below, a plaintiff may recover compensatory damages when the plain- tiff proves that a defendant’s violation of the ADA was intentional. In Savage v. South Florida Regional Transporta- tion Authority,742 the South Florida Regional Trans- portation Authority (SFRTA) had an “envelope policy” that provided that individuals with disabili- ties who did not purchase a ticket in advance, and who were unable to purchase a ticket through a ticket vending machine (TVM), could request a self-addressed envelope from onboard security per- sonnel and mail their payment after their trip.743 Because Savage, who was legally blind, was not told of the company’s envelope policy, and because SFRTA had not made a reasonable accommodation to enable him to pay for his ticket at the end of his trip, Savage sued for “intentional disability dis- crimination.”744 The plaintiff demonstrated that SFRTA’s policy requiring a passenger with a dis- ability to request an envelope was ineffective but failed to provide evidence of SFRTA’s intentional discrimination.745 The Eleventh Circuit held that, because the ticket-purchasing system complied with applicable regulations and guidelines, SFRTA had not excluded the plaintiff or denied the plain- tiff the benefits of its transportation services. In Ferguson v. City of Phoenix,746 the plaintiffs, who were deaf or hearing impaired, alleged that the city’s 911 system ineffectively served the deaf in vio- lation of Title II of the ADA, Section 504 of the Reha- bilitation Act, and 42 U.S.C. § 1983, and that the defendants treated the plaintiffs differently than they treated non-hearing impaired callers.747 The plaintiffs argued that under the ADA, the Rehabilita- tion Act, or § 1983, they were “presumptively enti- tled” to damages without regard to intent.748 After the district court’s decision on the defendants’ first motion for summary judgment, the case continued on the issue of damages. In the meantime, the parties entered into a consent decree that “required the City to eliminate the need for TDD [telecommunications device for the deaf] callers to use a TDD space bar to 742 523 Fed. App’x. 554 (11th Cir. 2013). 743 Id. at 554. 744 Id. 745 Id. 746 157 F.3d 668 (9th Cir. 1998), cert. denied, No, 98-1619, 1999 U.S. LEXIS 3857 (June 7, 1999). 747 Id. at 672. 748 Id.

51 several individuals with disabilities “who similarly complain[ed] of instances of lift failure and malfunction.”766 A federal district court in Oregon held that “com- pensatory damages are not available under Title II of the ADA absent a showing of discriminatory intent or, at a minimum, deliberate indifference.”767 The court concluded that occasional lift problems, when considered in the larger context of Tri-Met’s entire fixed route system, did not violate the ADA.768 The plaintiff failed to provide “evidence from which a rational inference of discriminatory intent” could be drawn.769 In addition, evidence of “‘bureaucratic inertia as well as some lack of knowledge and under- standing’ do not satisfy the intent requirement.”770 In Paulone v. City of Frederick,771 the plaintiff brought an action against the Board of County Com- missioners of Frederick County and the state of Maryland, inter alia, for allegedly violating the ADA. The case arose out of plaintiff ’s arrest in July 2008 by the city of Frederick, Maryland, on the charge that the plaintiff, who was deaf, was driving while impaired by alcohol (DWI). Before ruling on the parties’ cross-motions for summary judgment, the court stated: [C]ompensatory damages are available only upon proof of intentional discrimination or disparate treatment, rather than mere disparate impact.” … However, “intentional dis- crimination” and “disparate treatment” in this context are “synonymous.… [A] plaintiff need not show ‘discriminatory animus’ to prevail on a claim for damages under Title II of the ADA or § 504 of the Rehabilitation Act.” Moreover, “damages may be awarded if a public entity ‘intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation.”772 Because there were material facts in dispute, the court denied the parties’ cross-motions for summary judgment on Paulone’s claims that she was discrimi- nated against because of her disability because an American Sign Language (ASL) interpreter was not provided during her post-arrest detention and later 766 Id. at 1013. 767 Id. at 1018. See Michael Lewyn, Thou Shalt Not Put a Stumbling Block Before the Blind: The Americans with Disabilities Act and Public Transit for the Disabled, 52 Hastings L.J. 1037, 1083-84 (2001). 768 Midgett, 74 F. Supp. 2d at 1018. As for an injunc- tion, the court noted “that the desired corrective action [had] already been taken” and that the plaintiff had “not met his burden of demonstrating a threat of irreparable future harm.” Id. 769 Id. (citation omitted). 770 Id. (citation omitted). 771 787 F. Supp. 2d 360 (D. Md. 2011). 772 Id. at 373 (citations omitted). Punitive damages are not recoverable in actions brought under Title II of the ADA and Section 504 of the Rehabilitation Act. Id. deliberate indifference that “satisfies the requisite showing of intentional discrimination.”757 In Stamm v. New York City Transit Authority,758 the plaintiff brought claims under Title II of the ADA and Section 504 of the Rehabilitation Act against the New York City Transit Authority (NYCTA) and the Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA). The plaintiff alleged that the defendants’ vehicles and facilities were not accessible to her and other per- sons with disabilities who utilize service animals.759 Because “a reasonable jury could find the evi- dence adduced by Plaintiff sufficient to establish deliberate indifference,”760 a federal district court in New York denied the defendants’ motion for sum- mary judgment. To recover compensatory damages, the plaintiff did not have to show “personal animos- ity or ill will” to prove intentional discrimination.761 The court ruled that “a jury could reasonably con- clude that at least one NYCTA official with author- ity to address the alleged discrimination and to institute corrective measures on Plaintiff ’s behalf had actual knowledge of ongoing discrimination against Plaintiff but failed to respond adequately.”762 The court held that the plaintiff could recover dam- ages for emotional distress.763 In Midgett v. Tri-County Metropolitan Transpor- taion District,764 the plaintiff, a wheelchair user, alleged numerous service failures by TriMet. The plaintiff alleged that during one extremely cold day in January, when he intended to travel to work by bus, the number 45 bus that stopped for him had an inoperable lift; that when he proceeded to another regular bus stop the lift on the number 41 bus also was inoperable; and that when he decided to return home, the bus that arrived had a lift that initially failed to retract fully, thus preventing the bus doors from closing.765 The plaintiff provided evidence of two other failures, as well as submitted affidavits of 757 S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 262 (3d Cir. 2013). 758 No. 04-CV-2163 (SLT)(JMA), 2013 U.S. Dist. LEXIS 8534 (E.D.N.Y. Jan. 18, 2013). 759 The defendants’ motion for summary judgment argued that the plaintiff was not disabled, that she was not entitled to use a “service animal,” that she was seek- ing to bring dogs onboard that did not qualify as service animals, and that she had failed to make a Title II claim or a claim for intentional infliction of emotional distress. Id. at *1. 760 Id. at *11. 761 Id. at *3. 762 Id. at *11. 763 Id. at *21. 764 74 F. Supp. 2d 1008 (D. Or. 1999). 765 Id. at 1010.

52 absent intentional discrimination.”783 Nevertheless, courts have “held that deliberate indifference satis- fies the requisite showing of intentional dis- crimination.”784 “[A] two-part standard for deliberate indifference [requires] both (1) ‘knowledge that a harm to a federally protected right is substantially likely,’ and (2) ‘a failure to act upon that likelihood.’”785 The Third Circuit rejected the “discriminatory animus” standard for determining whether there was intentional discrimination. The court held that “the deliberate indifference standard is better suited to the remedial goals” of the ADA and the Rehabili- tation Act and that both Acts are “targeted to address ‘more subtle forms of discrimination’ than merely ‘obviously exclusionary conduct.’”786 After selecting the standard that applied, the court addressed whether the School District was deliber- ately indifferent. To satisfy the deliberate indifference standard, Appellants must present evidence that shows both: (1) knowledge that a federally protected right is substantially likely to be vio- lated (i.e., knowledge that S.H. was likely not disabled and therefore should not have been in special education), and (2) failure to act despite that knowledge.787 The appellants argued that the evidence estab- lished that the School District had knowledge that S.H. had been misidentified as learning disabled. For example, S.H. had informed her teachers in fifth grade and middle school that she did not belong in special education. Nevertheless, the court ruled that the “[a]ppellants have presented no evidence that would create a genuine dispute as to whether the School District knew, prior to Dr. Abdullah-John- son’s evaluation, that S.H. had likely been misiden- tified as having a learning disability.”788 Because there was no evidence of deliberate indifference, the court affirmed the district court’s grant of a sum- mary judgment for the School District.789 I. Applicability of 42 U.S.C. § 1983 to ADA Claims Although there have been 42 U.S.C. § 1983 actions against transit agencies, only one agency responding to the survey reported having a § 1983 action in the past 5 years for alleged violations of Title II of the ADA.790 783 Id. at 262. 784 Id. 785 Id. at 263 (citations omitted). 786 Id. at 264 (citation omitted). 787 Id. at 265 (citation omitted). 788 Id. at 267. 789 Id. 790 See Appendix C, Transit Agencies’ Responses to Question 22. The agency did not elaborate on the claim. at alcohol education classes. On Paulone’s claim that the state failed to provide an interpreter for her at her initial appearance before a district court com- missioner, the court found that the omission was not intentional. The court granted a summary judgment to the state solely on the issue of liability to the plaintiff for monetary damages.773 The court granted the plaintiff ’s motion for a summary judgment on her claim that the state failed to provide an inter- preter for her attendance at a victim impact panel, but the court did not determine the issue of damages.774 S.H. v. Lower Merion School District775 was an action by S.H. and her mother against the Lower Merion School District (School District) for alleged violations of the Individuals with Disabilities Edu- cation Act (IDEA),776 Section 504 of the Rehabilita- tion Act, and Section 202 of the ADA.777 The appellants’ claims were based on the School Dis- trict’s misdiagnosis of S.H. as being learning dis- abled for several years. The plaintiffs argued that the School District was liable under the IDEA for compensatory education and under the ADA and Rehabilitation Act for compensatory damages.778 In brief, beginning in first grade (2000-2001), S.H., an African American, was placed in a “feder- ally funded remedial program designed to improve a student’s academic performance in reading and math.”779 At the beginning of S.H.’s fifth-grade year, (2004-2005), a school psychologist, after an evalua- tion, determined that S.H. had a learning disability in reading and math and recommended that she receive specially designed instruction in those areas.780 After her designation as learning disabled, an education team developed an Individualized Education Program (IEP) for her.781 However, in 2009, a nationally certified school psychologist, Dr. Abdullah-Johnson, performed an evaluation and “concluded that S.H.’s designation as learning dis- abled was, and always has been, erroneous.”782 On the plaintiff ’s ADA and Rehabilitation Act claims, the court observed that “[a]ll courts of appeals that have considered this issue have held that compensatory damages are not available under § 504 of the Rehabilitation Act and § 202 of the ADA 773 Id. at 399. 774 Id. at 405 and 407. 775 729 F.3d 248 (3d Cir. 2013). 776 Pub. L. No. 101-476, 104 Stat. 1142 (1990). 777 S.H., 729 F.3d at 250-51. 778 Id. at 251. 779 Id. at 251, n. 1. 780 Id. at 252. 781 Id. 782 Id. at 254.

53 However, it appears that officials may not be sued in their individual capacities under the ADA800 and that non-employer individuals may not be held per- sonally liable under either Title I or Title II of the ADA.801 K. Immunity of a State or State Agency for Damages for Violations of Title II In Miranda B. v. Kitzhaber,802 in which the plain- tiff sought prospective injunctive relief, the Ninth Circuit held that Oregon was not entitled to sover- eign immunity under the Eleventh Amendment, because Congress validly abrogated immunity from suit for claims under Title II of the ADA, and because the state waived immunity for claims under Section 504 of the Rehabilitation Act of 1973 when it accepted federal funds. Although the court in Mason v. City of Huntsville,803 in addressing whether Title II of the ADA abrogated a state or state agency’s sovereign immunity, observed that although “other circuits and districts have nar- rowed the scope of valid Title II claims solely to those implicating a fundamental right …, the Eleventh Cir- cuit has not followed that path.”804 Accordingly, the court held that “Title II of the ADA is a valid exercise of Congress’s enforcement power under Section 5 of the Fourteenth Amendment.”805 In contrast, in Everybody Counts, Inc. v. Northern Indiana Regional Planning Commission,806 the court addressed the issue of whether a fundamental right was at stake in deciding whether the Indiana Department of Transportation (INDOT), as a state agency, has immunity under the Eleventh Amend- ment, and, if so, whether Congress “properly” abro- gated the states’ immunity in the ADA.807 The plaintiffs alleged that the defendants, includ- ing INDOT, deprived them of access to public trans- portation services in violation of Title II of the ADA 800 Sway v. Spokane Paratransit, No. 2:16-CV- 310-RMP, 2017 U.S. Dist. LEXIS 206716, at *8 (E.D. Wash. Dec. 25, 2017). 801 Smith v. Aldridge, No. 3:17-cv-01485-HZ, 2018 U.S. Dist. LEXIS 47021, at *16 (D. Or. March 22, 2018) (hold- ing that “[c]laims under Title II of the ADA—which applies to state and local governments—similarly cannot be brought against individual state actors”). 802 328 F.3d 1181 (9th Cir. 2003). 803 No. CV-10-5-02794-NE, 2012 U.S. Dist. LEXIS 145698 (N.D. Ala. Oct. 10, 2012). 804 Id. at *21-22. 805 Id. at *42. 806 No. 2:98-CV-97, 2006 U.S. Dist. LEXIS 39607 (N.D. Ind. March 30, 2006), motion granted by No. 2:98-CV-PPS- APR, 2010 U.S. Dist. LEXIS 94235 (N.D. Ind., Sept. 9, 2010). 807 Id. at *2-3. Nevertheless, transit agencies are subject to § 1983 actions for violating the ADA. For example, in Hamlyn v. Rock Island County Metropolitan Mass Transit District,791 in which the court held that the defendant Metro Link violated the ADA and the Equal Protection Clause of the U.S. Constitution,792 the court held also that the plaintiff had a claim under § 1983. [F]acial challenges alleging an improper classification involve[] only two steps: (1) [a] plaintiff must first show that the challenged statute or policy, on its face, results in mem- bers of a certain group being treated differently from other persons based on membership in that group…. (2) [I]f it is demonstrated that a cognizable class is treated differently, then the court must analyze under the appropriate level of scrutiny whether the distinction made between the groups is justified.793 In Disability Rights Council of Greater Washington v. Washington Metropolitan Area Transit Authority,794 the court stated that “Title II of the ADA does not manifest an intent to preclude use of § 1983 to rem- edy violations of its mandates.”795 Furthermore, the court held that under Section 501(b) of the ADA “‘[n]othing in this chapter shall be construed to inval- idate or limit the remedies, rights, and procedures of any Federal law … that provides greater or equal protection for the rights of individuals with disabili- ties than are afforded by this chapter.’”796 Based on the legislative history, the foregoing “provision was intended in part specifically to ensure that remedies under § 1983 [are] available to redress violations of the Act.”797 J. Respondeat Superior Liability Under the ADA In Paulone v. City of Frederick,798 although not a case involving transportation services, the court stated that Title II of the ADA and Section 504 of the Rehabilitation Act “contemplate” respondeat supe- rior liability; thus, a principal may be held liable for its agent’s violations, as well as for an “official ‘policy of discrimination.’”799 791 986 F. Supp. 1126 (C.D. Ill. 1997). 792 Id. at 1332-33. 793 Id. at 1134 (citations omitted). 794 239 F.R.D. 9 (D.D.C. 2009). 795 Id. at 22. 796 Id. (quoting 42 U.S.C. § 12201(b)). 797 Id. However, the court dismissed the plaintiffs’ § 1983 claims that alleged violations of the Rehabilitation Act. Id. at 23. The private right of action provided by Sec- tion 505 is exclusive, because the Rehabilitation Act does not include a provision similar to Section 501(b) of the ADA. Id. 798 787 F. Supp. 2d 360 (D. Md. 2011). 799 Id. at 372 (citations omitted).

54 issue, therefore, was whether under § 5 there was “‘a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’”819 An Indiana federal district court held, first, that there was no “clear fundamental constitutional right to public transportation.”820 Second, Title II of the ADA was not a congruent and proportional rem- edy in cases that “implicat[e] only the right to be free from irrational disability discrimination in the provision of public transportation.”821 Title II and its implementing regulations go beyond merely protecting disabled individuals from irrational disability discrimination. Instead, they expose states to money dam- ages for violations of the ADA by creating a number of affir- mative obligations that the state can only avoid by establishing undue financial hardship. This does not allow the state enough room to make classifications that are rationally related to some legitimate governmental purpose.822 The court held that the Title II regulations impose various “affirmative actions in the form of ‘reason- able modifications’ which place a heavy burden on transportation providers.”823 In this particular case, the burden on the state is exagger- ated by a statutory scheme that essentially attempts to hold the state vicariously liable for disability discrimination even where the state is not the actual entity providing the transportation.… INDOT is merely a funding entity…. This regulation purports to place a significant oversight burden on INDOT by making INDOT responsible for any discrimi- nation by any transportation provider to which INDOT has ever administered funds.824 Thus, the court held that INDOT, as a state agency, had Eleventh Amendment immunity from actions for damages under Title II of the ADA.825 Moreover, for the plaintiffs to prove that INDOT “violated the ADA by aiding or perpetuating dis- crimination by providing assistance to an agency that discriminates on the basis of disability, there 819 Id. at *18 (citation omitted). 820 Id. at *29 (citing Anthony v. Franklin Cnty., 799 F.2d 681, 666 (11th Cir. 1986)). 821 Id. at *32. 822 Id. at *32-33. (citing Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367-68, 121 S. Ct. 955, 964, 148 L. Ed. 2d 866, 879 (2001)). 823 Id. at *33. 824 Id. at *35-36 (citations omitted). 825 Id. at *40. As for whether there was immunity under Section 504 of the Rehabilitation Act, the court stated that Section 504 differs from the ADA because Sec- tion 504 is “‘a condition on the receipt of federal funds.’” Id. at *41 (citations omitted). See also Monroe v. Indiana, No. 1:14-cv-00252-SEB-DML, 2016 U.S. Dist. LEXIS 43842, at *16 (S.D. Ind. March 31, 2016) (stating that the plain- tiff ’s claims against the state defendants for damages under Title I of the ADA are barred by the Eleventh Amendment). and § 504 of the Rehabilitation Act. The plaintiffs argued that the municipal defendants provided a level of transportation services to individuals with disabilities that “was not comparable to the services provided to non-disabled riders in violation of the ADA.”808 The plaintiffs further alleged that the municipalities that were violating the ADA and the Rehabilitation Act received federal grant funds and that INDOT was violating the ADA because the Act prohibits public entities from aiding other organiza- tions that are discriminating.809 Although the court stated that the claim against INDOT was not “immediately apparent,” the plaintiffs’ argument was that INDOT had not adequately overseen the cities’ compliance with the ADA.810 Because INDOT was “responsible for ensuring that the [Metropoli- tan Planning Organizations] comply with the ADA, the Rehabilitation Act, and other relevant federal statutes,”811 INDOT’s role was “limited to an over- sight function and [to] being a pass-through funding entity.”812 The court explained that § 5 of the Fourteenth Amendment empowers Congress to abrogate the states’ sovereign immunity “as necessary to enforce the substantive guarantees of the Fourteenth Amendment,”813 but “the power to determine what constitutes a constitutional violation” is “for the Supreme Court—not Congress—to decide….”814 Even though Congress “unequivocally expressed” its intent in the ADA to abrogate the states’ sover- eign immunity, whether Congress acted pursuant to a valid grant of congressional authority was “not quite as straight-forward.”815 For an act of Congress to abrogate Eleventh Amendment immunity, a court must identify the constitutional right at issue and then “determine whether a ‘relevant history’ and ‘pattern of constitutional violations’ exists.”816 The question, thus, was “whether the legislative ‘fix’ that Congress suggests is an appropriate response (or, in other words is ‘congruent and proportional’) to the history and pattern of unequal treatment.”817 When fundamental rights, such as access to the courts, are not at stake, it is much more difficult for Congress to abrogate Eleventh Amendment immunity.818 The 808 Id. at *5. 809 Id. at *10. 810 Id. at *5. 811 Id. at *7. 812 Id. at *6. 813 Id. at *16 (citation omitted). 814 Id. at *17. 815 Id. at *15. 816 Id. at *16. 817 Id. (citation omitted). 818 Id. at *21.

55 however, the continuing violation doctrine did not apply to the plaintiff ’s retaliation claim under the ADA.834 M. Attorney’s Fees A court has jurisdiction under the ADA to award attorney’s fees to a “‘prevailing party’ other than the United States.”835 In litigation against the federal government, however, the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, authorizes a private litigant to recover attorney’s fees incurred when the litigant has prevailed in the lawsuit, and the gov- ernment cannot prove that its position in the law- suit was substantially justified.836 The Third Circuit has held that whether a plaintiff is a prevailing party depends, first, on whether the plaintiff achieved some of the benefit it sought by initiating the action, and, second, on whether the “‘litigation constituted a material contributing factor in bring- ing about the events that resulted in the obtaining of the desired relief.’”837 In Collins v. Southeastern Pennsylvania Trans- portation Authority,838 the plaintiffs recovered legal fees. The plaintiffs had alleged that SEPTA violated the ADA and the Due Process clause of the Four- teenth Amendment by denying the plaintiffs’ access to paratransit services.839 Eventually, the parties negotiated a consent decree.840 SEPTA opposed the plaintiffs’ application for attorney’s fees, in part, because the plaintiffs did not prevail on all claims.841 A federal district court in Pennsylvania stated that the plaintiffs in the settlement received “relief of the ‘same general type’ they requested in the complaint, regardless of what legal theory led to that result.”842 The court also found that the amount of the attor- ney’s fees claimed was reasonable. Likewise, in Brinn v. Tidewater Transportation District Commission,843 the Fourth Circuit affirmed a district court’s award of $29,506.24 in attorney’s 834 Id. at *30-31. 835 Am. Council of the Blind v. Wash. Metro. Area Tran- sit Auth., 133 F. Supp. 2d 66, 71 (D.D.C. 2001) (citing 42 U.S.C §12205). 836 Id. 837 Collins v. Se. Pa. Transp. Auth., 69 F. Supp. 2d 701, 703 (E.D. Pa. 1999) (quoting Metro. Pittsburgh Crusade for Voters v. Pittsburgh, 964 F.2d 244, 250 (3d Cir. 1992)). 838 69 F. Supp. 2d 701 (E.D. Pa. 1999). 839 Id. at 702. 840 Id. 841 Id. 842 Id. at 704, (quoting Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 911 (3d Cir. 1985)). 843 242 F.3d 227 (4th Cir. 2001). must first be proof that the agencies receiving grant money are actually discriminating against individu- als with disabilities.”826 In Disability Rights Council of Greater Washing- ton v. WMATA,827 involving the adequacy of para- transit services, the court agreed with the United States, which intervened in the case, that it was not necessary to address the abrogation of immunity issue. Because DOT regulations that require WMATA to comply with the Rehabilitation Act also require WMATA to comply with all ADA require- ments, WMATA had waived its immunity to the plaintiffs’ claims under the Rehabilitation Act. The court held that any violations by WMATA of the ADA and the DOT regulations were “necessarily vio- lations of the Rehabilitation Act.”828 The court, therefore, deemed the plaintiff ’s ADA claims as claims having been brought pursuant to the Reha- bilitation Act.829 L. Statute of Limitations It has been held that in the absence of a statute of limitations in the ADA, the courts apply the appro- priate state statute of limitations to ADA claims. The limitation period, accordingly, may differ from state to state. In Disabled in Action v. SEPTA,830 the Third Circuit held that discrimination claims under the ADA based on SEPTA’s failure to include eleva- tors in its renovations of two subway stations were not barred by the statute of limitations. Claims under § 12147(a) of the ADA accrue only on the com- pletion of alterations to public transportation facili- ties. The fact that an action could have been brought for a preliminary injunction prior to completion of the alterations did not trigger the applicable statute of limitations, which was the two-year statute of limitations that applied to personal injury actions in Pennsylvania. In contrast, in Stamm v. New York City Transit Authority,831 the court ruled that the plaintiff ’s Title II and Rehabilitation Act claims were both governed by the three-year statute of limitations that applies to personal injury actions in New York.832 The plaintiff ’s Title II claim survived under New York’s “continuing violation” doctrine;833 826 Everybody Counts, Inc., 2006 U.S. Dist. LEXIS 39607, at *50. 827 239 F.R.D. 9 (D.D.C. 2006). 828 Id. at 14. 829 Id. at 15. 830 539 F.3d 199 (3d Cir. 2008). 831 No. 04-CV-2163 (SLT)(JMA), 2013 U.S. Dist. LEXIS 8534 (E.D.N.Y. Jan. 18, 2013). 832 Id. at *22. 833 Id. at *25.