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September 30, 1982


The opinion of the court was delivered by: Kocoras, District Judge:


Plaintiffs bring this action on behalf of a class of mobility-handicapped individuals who challenge the efforts of local, state, and federal officials and agencies to comply with various statutes and regulations securing the rights of the handicapped to use and to have access to the mass transportation system in the Chicago metropolitan area. Plaintiffs' Third Amended Complaint, which is at issue here, seeks declaratory and injunctive relief for alleged violations of the Urban Mass. Transportation Act, 49 U.S.C. § 1601 et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, § 165 of the Federal-Aid Highway Act of 1973, 23 U.S.C. § 142, the applicable federal regulations promulgated under the authority of the foregoing statutes, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The defendants have filed motions to dismiss and for summary judgment.

The named plaintiffs are George A. Lloyd, who is a quadriplegic confined to a wheelchair since 1953, Janet B. Wolfe, who is mobility-disabled because of a chronic pulmonary dysfunction, and Harold Brennan, who is also disabled because of partial paralysis in both legs from polio. All are residents of Chicago, but they sue on behalf of all mobility-disabled persons residing in the region served by the local defendants.

The defendants may be characterized as federal and local. The federal officials and agencies sued in this action include the former Secretary of Transportation, the United States Department of Transportation (DOT), the former administrator of the Urban Mass. Transportation Administration (UMTA), and the former administrator of the Federal Highway Administration (FHWA). These will hereafter be referred to as the "federal defendants". Pursuant to Fed.R.Civ.P. 25(d)(1), the present administrators of the UMTA, FHWA, and the DOT are substituted as party defendants.

The local defendants include the Regional Transportation Authority (RTA), which provides public transportation and assists in the public mass transportation system in this region, the Chicago Transportation Authority (CTA), which administers and provides mass transportation service in the Chicago metropolitan area, the Chicago Urban Transportation District (CUDT), the administrators of the foregoing entities, and the Chicago Area Transportation Study (CATS), which is the Metropolitan Planning Organization (MPO) for the transportation area served by the RTA, CTA and the CUTD. Both the CTA and the RTA are municipal corporations established pursuant to Ill.Rev.Stat. 1975, ch. 111 2/3, §§ 701.01 et seq. and 301 et seq.

The local defendants receive direct or indirect federal financial assistance under the auspices and approval of the federal defendants. Count I of the Third Amended Complaint alleges that the local agency defendants have violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, because they have conducted the mass transit operations in such a way as to exclude plaintiffs and their class from use of the system by reason of plaintiffs' handicaps. Count II alleges that the local agency defendants' conduct in excluding plaintiffs from the mass transit system has violated Section 504 of the Rehabilitation Act, the regulations promulgated thereto, and 42 U.S.C. § 1983. Count III alleges that the local agency defendants have failed to take "special efforts" to plan and to design the mass transit system so as to assure the meaningful usage of the federally-financed facilities by the elderly and handicapped; the third count asserts violations of section 16(a) of the Urban Mass. Transportation Act, 49 U.S.C. § 1612(a), the Federal-Aid Highway Act, 23 U.S.C. § 142, and 42 U.S.C. § 1983. Count IV, which is the only count against the federal defendants, alleges that they violated section 16(a) of the UMTA, 49 U.S.C. § 1612(a), the Federal-Aid Highway Act, 23 U.S.C. § 142, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the federal regulations implementing those provisions 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 annual 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 include:

  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 1280.

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.

The 1981 regulations, which became effective on its date of publication on July 20, 1981, replaced Subpart E of the 1979 regulations with provisions similar to those in the 1976 regulation and its appendix. The three examples of "special efforts", which are quoted above, were essentially reenacted with some minor modifications. In considering the changes in the structure and funding level of the UMTA section 5 grant program and the effects of inflation, the DOT revised the example of the expenditure of a minimum of five percent of a recipient's section 5 funding to the equivalent of a minimum of three and one-half percent of this funding. 46 Fed. Reg. at 37489. The DOT observed that three and one-half percent of contemporary section 5 funding in real dollar terms is "essentially equivalent to five percent of section 5 funding in Fiscal Year 1977, the first full fiscal year in which the 1976 UMTA regulations were in effect." Id. at 37489. With the exception of Subpart E's deletion, all other provisions of the 1979 regulation were retained including the administrative enforcement procedures in Subpart F. 49 C.F.R. §§ 27.121-.129 (1981). Under the 1981 regulation, local recipients of section 5 funds are required to certify that "special efforts" are being made in their service area to provide transportation that handicapped persons can use. 46 Fed. Reg. 37489-90 explaining 49 C.F.R. Part 27.17(a). On August 1, 1981, the Department of Justice published a notice suspending its guideline (the former HEW Guideline) which required that all transportation systems receiving federal financial assistance be made accessible to the handicapped. 46 Fed. Reg. 40687.

The local agency defendants, as well as their employees and agents, prepared the proposed "annual elements" containing specific mass transportation projects for fiscal years 1976, 1977, 1978 and 1979; those elements were submitted for funding approval to the Urban Mass. Transportation Administration (UMTA) and to the Federal Highway Administration (FHWA), which is an agency of the Department of Transportation. The annual element for fiscal 1976 submitted by the RTA, CTA, and CUTD, which was approved by the federal agency defendants, contained only one project concerning the handicapped: a demonstration program consisting of 20 small, demand-responsive buses for one specific area of Chicago. (Third Amend. Complaint ¶ 42). The annual element for fiscal 1977 proposed a demonstration project of 25 small, demand-responsible buses for one area of Chicago. (Third Amend. Comp. ¶ 44). The annual element for fiscal 1978 included proposals to equip 300 buses with lifts and to make an unidentified rapid transit station in downtown Chicago accessible to the handicapped. (Complaint ¶ 46). The annual element for fiscal 1979 included the same proposal for small buses that had been proposed for 1976 and 1977, but had not yet been implemented. In addition, the 1979 annual element again proposed expenditures on making a downtown rapid transit station accessible to the elderly and handicapped. (Complaint 48).

The gist of the complaint against the local defendants is that they failed to implement the annual elements, which contained transportation improvement programs for the handicapped, for fiscal years 1976, 1977, 1978, and 1979. (Third Amend. Complaint ¶¶ 43, 45, 47, 49). Specifically, plaintiffs allege that the local defendants have failed to implement any of the special projects for the handicapped proposed in fiscal years 1976 and 1977; that they have failed to spend a vast majority of the funds allocated for projects to benefit the handicapped in fiscal 1978 and 1979; and that they have purported to satisfy the regulatory requirements in fiscal years 1977, 1978, and 1979 by carrying over projects that had been proposed but not implemented. (Third Amend. Complaint ¶ 48).

The basis of the claim against the federal defendants is that they approved funds in fiscal years 1977, 1978 and 1979 when they knew that the local defendants had failed to implement the projects approved in prior fiscal years and that the earlier projects had not been implemented. (Third Amend. Complaint ΒΆ 52). Moreover, plaintiffs claim that the federal defendants approved such funds even though they knew, or should have known, that the local defendants were using the ...

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