by approving the local defendants' applications for federal
financial grants with the knowledge that the mass transit
system had been and would continue to be inaccessible to the
elderly and handicapped.
The plaintiffs seek both declaratory and injunctive relief.
In particular, plaintiffs seek a declaratory judgment that
they have a right of meaningful access to the mass transit
system; that the defendants have violated the plaintiffs'
rights secured by the UMT Act, the FAHA, the Rehabilitation
Act, 42 U.S.C. § 1983, and the applicable federal regulations;
and that the local defendants have violated the regulations
codified in 49 C.F.R. Parts 609 and 613. The prayer for relief
also seeks an injunction against the local defendants from
operating or owning any vehicles or facilities "in addition to
those currently owned or operated", which are not designed for
use and accessibility by the mobility-handicapped, until (a)
the local agency defendants have completely implemented all
projects contained in the 1976, 1977, 1978 and 1979 Annual
Elements; (b) the local agency defendants have made all buses,
rapid transit facilities, and fixed facilities constructed or
purchased since May 1, 1976 accessible to the handicapped; and
(c) the local defendants can satisfy this court that adequate
plans have been made to design and to construct services and
facilities that can be used by the handicapped. (Third Amend.
Complaint, Prayer for Relief, ¶ 5). Plaintiffs seek to enjoin
the federal defendants from releasing any funds to the local
defendants or from approving any projects and proposals until
the local defendants have complied with the foregoing
requirements in paragraph 5 of the prayer for relief. (Third
Amend. Complaint, Prayer for Relief, ¶ 6).
The same statutes and applicable regulations were involved
in a recent case brought on similar grounds before Judge
Weinfeld in the United States District Court for the Southern
District of New York. See, e.g., Dopico v. Goldschmidt,
518 F. Supp. 1161 (S.D.N.Y. 1981), aff'd in part, rev'd in part,
687 F.2d 644 (2nd Cir. 1982).*fn1 Judge Weinfeld's lengthy opinion
adequately described the statutes involved and the regulations
implementing them. Id. at 1166-1169. In addition, the
Memorandum in Support of the Federal Defendants' Motion to
Dismiss Third Amended Complaint or, Alternatively, for Summary
Judgment, provides a very thorough and able review of the
applicable federal statutory and regulatory provisions.
(Federal Defs. Memo. in Support at 7-16). This court need not
dwell on the regulations that have already been fully described
in Judge Weinfeld's decision in Dopico and by the brief of the
federal defendants. A broad overview of the applicable
regulations, however, is necessary for purposes of the motions
before the court.
The first regulations implementing section 16(a), section
165(b), and section 504 were promulgated in 1976 in order to
provide for accessible mass transportation for handicapped
persons ("the 1976 regulations"). See 23 C.F.R. Part 450. They
required the creation of a Metropolitan Planning Organization
("MPO"), which in this case is the defendant Chicago Area
Transportation Study (CATS). The MPO is responsible "for
carrying out the urban transportation planning process . . .
and shall develop the planning work programs [TIP] . . . [and]
shall be the forum for cooperative decision making by principal
elected officials." 23 C.F.R. § 450.112(a). The TIP is a
"staged multiyear program of transportation improvements
including an annual element." Id. § 450.304. The purpose of the
TIP is to identify transportation improvements for a particular
program period, indicate priorities, and estimate costs; the
element of the TIP sets forth the projects being funded for
that fiscal year. Id. §§ 450.308 and 450.310-312; Dopico v.
Goldschmidt, supra, 518 F. Supp. at 1167.
The UMTA must determine that a program conforms to the
regulations in order to certify it for federal funding.
Id. § 450.320. Significantly, the 1976 regulations also
required that the TIP must include "special efforts" in
planning public mass-transit facilities so that they can
effectively be used by the elderly and the handicapped. Id. §
450.120(a)(5). Thus, the locality must demonstrate genuine,
good-faith progress in planning services for disabled persons
and "reasonable progress" in implementing previously approved
projects. 23 C.F.R. Pt. 450, Sub. A, App. B;
49 C.F.R. § 613.202(c).
An Appendix, which supplements these regulatory
requirements, sets forth specific examples of effort that will
be deemed to satisfy the "special efforts" requirement. 41
Fed. Reg. 18234. The three examples described in the Appendix
A program for wheelchair users and
semi-ambulatory persons involving annual average
expenditures equivalent to a minimum of 5 percent
of the urban area's apportionment under section 5
of the UMT Act.
Purchase of only wheelchair-accessible, fixed
route vehicles until one-half of the fleet is
accessible or development of a substitute service
that will provide comparable coverage and
Any type of system that assures every wheelchair
user or semi-ambulatory person transportation of
10 round trips per week within the service area,
at prices comparable to those charged for the
standard service for trips of similar length.
The Department of Transportation issued a second set of
regulations in 1979 in order to implement an executive order
and new guidelines on the subject of accessibility for
handicapped persons. 44 Fed. Reg. 31442 et seq. adding 49
C.F.R. Part 27 (1979 regulations). The HEW guidelines mandated
"program accessibility" or "mainstreaming" for the mobility
handicapped; "mainstreaming" was defined as "the concept of
prohibiting the exclusion of handicapped persons from programs
by virtue of architectural barriers to such facilities as
buildings, vehicles and walks . . ." 43 Fed. Reg. 2132, 2135
(1978), 45 C.F.R. §§ 85.1 et seq. (1980). The 1979
"mainstreaming" regulations superseded the 1976 "special
efforts" regulations. Id. As a result of the new regulations,
each mode of public transportation must be accessible to the
handicapped, and recipients of federal grants who did not plan
to achieve program accessibility by July 2, 1982 were required
to provide interim accessible transportation until the full
accessibility was achieved. 49 C.F.R. § 27.97.
The 1979 regulations had been enacted to implement section
504 of the Rehabilitation Act, section 16 of the Urban Mass.
Transit Act, and section 165(b) of the Federal-Aid Highway
Act. In reversing a district court decision, the District of
Columbia Court of Appeals held that the DOT could not rely on
the authority of section 504 of the Rehabilitation Act to
promulgate the 1979 regulations. See, e.g., American Public
Transit Ass'n v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981). Because
the court found that the regulations exceeded the DOT's
authority to enforce section 504, the regulations were remanded
to the DOT so that it could determine whether the 1979
regulations could be based on other statutory authority. Id. at
On July 20, 1981, the DOT deleted Subpart E of the 1979
regulation which required mass transit systems to become
accessible to handicapped persons. 46 Fed. Reg. 37488 (1981).
In discussing the American Public Transit Association case, the
DOT noted that the court's decision directly affected only
Subpart E of 49 C.F.R. Part 27; no other portion of the
regulation was at issue in the case. 46 Fed. Reg. at 37489. In
addition, the DOT wrote:
While the Court allowed the Department to
consider whether section 16 and section 165,
among other statutes, might support the
requirements of Subpart E, we believe that these
statutes do not mandate,
although they may permit, the kinds of
affirmative action that Subpart E contained. 46
Fed. Reg. at 37491.
As a result, the DOT declined to maintain the "mainstreaming"
requirements of Subpart E under the authority of either
section 16 of the UMTA or section 165 of the FAHA. Instead,
the DOT published an interim final rule (the 1981 regulation)
which served to implement § 504 and effectively reverted to the
former provisions in the 1976 "special efforts" regulations. 46
Fed. Reg. 37488.