A recently resolved lawsuit in the nation’s capital highlighted both highly abstract legal principles and intensely practical litigation tactics in a case addressing a crucial public service for those with severe disabilities. “Paratransit” is a frequent and important battleground between public transit agencies and advocates for the disabled. Although the Washington, D.C., case did not go to a verdict, over its nearly four-year course it revealed significant lessons for both sides regarding legal efforts to ensure proper paratransit service. The case pitted a judicially certified class of 17,000 paratransit riders, represented by the Equal Rights Center of Washington and fourteen disabled class representatives, against the Washington Metropolitan Area Transit Authority (WMATA) that serves Washington, D.C., and the surrounding areas of Maryland and Virginia.
Public transportation provides many people with disabilities a lifeline to active participation in their communities. The ability to leave one’s home to go to work, to visit friends, or to access critical services is fundamental to one’s quality of life. A dysfunctional paratransit system therefore has devastating consequences. For example, in the WMATA litigation, numerous riders lost their jobs because they were frequently unable to get to work on time. Many others suffered serious health consequences, such as a rider who ran out of oxygen for her portable respirator due to an exceptionally long and delayed ride. Another had to cancel surgery that had been scheduled months earlier because her vehicle never arrived. A rider with severe mental disabilities was dropped off at a shopping mall after her driver grew frustrated by her inability to provide directions. And then there were the “everyday” frustrations—being stranded at a restaurant late at night, or missing a plane for that long-scheduled vacation. The stakes in paratransit litigation are high.
The ADA in the WMATA Context
One of Congress’s key goals when it enacted the Americans with Disabilities Act (ADA) was to eliminate barriers that prevent people with disabilities from readily participating in economic, social, and civic activities. Congress determined that accessible public transportation was critical to achieving this ADA goal. The House Committee on Education and Labor stated that transportation is “the linchpin which enables people with disabilities to be integrated and mainstreamed into society.” H.R. Rep. No. 101-485(II), at 37 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 319. Without accessible transportation, people with disabilities are confined to their homes, unable to go to work, attend school, attend religious services, or meaningfully participate in public life. 42 U.S.C. § 12101(a)(3).
Title II of the ADA requires states to provide people with disabilities access to public transportation services similar to those afforded to other people. In the Washington metropolitan area, as in most major urban areas, the transit system meets this obligation through a paratransit system that uses vans, minibuses, specialized car services, and taxis to provide point-to-point transportation services for people unable to use fixed route rail and bus public transportation systems. U.S. Department of Transportation regulations require paratransit systems to afford a level of service “comparable” to that provided to people without disabilities. Specifically, paratransit systems must be comparable to fixed route systems with respect to geographic coverage, response time, fares, trip restrictions, hours and days of service, and “capacity” constraints. In regard to capacity constraints, the regulations require that the system “shall not limit the . . . paratransit service by . . . [a]ny operational pattern or practice that significantly limits the availability of service to ADA paratransit eligible persons.” 49 C.F.R. § 37.131(f)(3). In the just concluded Washington litigation, key types of unacceptable operational patterns or practices at issue included “(A) Substantial numbers of significantly untimely pickups for initial or return trips; (B) Substantial numbers of trip denials or missed trips; [and] (C) Substantial numbers of trips with excessive trip lengths.” Id. § 37.131(f)(3)(i).
Perhaps the most difficult of the paratransit requirements to satisfy is the need to have sufficient capacity (i.e., resources) to ensure that riders are not systemically prevented or discouraged from using the system. Limitations in capacity are not infrequent given the costs associated with providing this service. In the Washington case, WMATA asserted that while the standard fare for each paratransit ride was $2.50, the average cost for providing each ride was approximately $30. Although WMATA claimed that this disconnect between fares and costs had no effect on its ability or commitment to provide comparable service, the plaintiffs in the lawsuit strenuously contended otherwise. They alleged that severe and persistent deficiencies in WMATA’s paratransit system forced the class members to endure regularly missed or denied trips, grossly belated pickups, excessively lengthy trips, and a dysfunctional phone reservation system that dropped calls after keeping customers on hold for extended periods of time.
While the WMATA litigation was recently settled on terms that should ensure that paratransit service in the nation’s capital will greatly improve in the years ahead, the case raises two crucial questions that will surely confront future paratransit litigants:
1. Are paratransit claims filed under Title II of the ADA barred by the doctrine of sovereign immunity?
2. Will the Supreme Court’s decision to limit the availability of attorney fees severely deter private enforcement of Title II paratransit requirements?
The Question of Sovereign Immunity
Seventeen years after the ADA’s enactment, the courts have yet to determine definitively whether public transportation agencies are immune from private suit for claims arising under Title II. The Eleventh Amendment to the U.S. Constitution bars suits against state agencies for violations of federal statutes absent a valid abrogation of immunity by Congress or a waiver of immunity by the state. Under the test articulated by the U.S. Supreme Court, congressional abrogation of Eleventh Amendment immunity is effective where Congress has “unequivocally expressed its intent to abrogate that immunity” and “acted pursuant to a valid grant of constitutional authority.” Tennessee v. Lane, 541 U.S. 509, 517 (2004) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)).
In enacting the ADA, Congress clearly intended to abrogate state sovereign immunity. See Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363–64 (2001). The real issue then is whether such an abrogation is a valid exercise of the enforcement power conferred on Congress by Section 5 of the Fourteenth Amendment. In Lane, the Court applied a three-part test to conclude that Title II of the ADA, as it pertained to access to courthouses to defend a criminal charge and to serve as a court reporter, was a valid exercise of Congress’s power to abrogate Eleventh Amendment immunity. In so doing, the Court examined (1) whether a history of unconstitutional disability discrimination supports Congress’s determination that “inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation,” Lane, 541 U.S. at 529; (2) “whether Title II is an appropriate response to this history and pattern of unequal treatment,” id. at 530; and (3) the “constitutional right or rights that Congress sought to enforce when it enacted Title II,” id. at 522.
Although the Lane Court upheld ADA-based suits against states to the narrow extent that they implicate the right to access judicial services, it rejected a finding that all claims predicated on Title II’s requirement of access to government programs and services amounted to a valid abrogation of sovereign immunity. The opinion is expressly limited to cases about court proceedings, and thereby allows states to continue mounting threshold challenges to other ADA lawsuits regarding public programs and services, such as public transportation.
Applying the Lane analysis to the provision of paratransit services clearly indicates that Title II’s abrogation of Eleventh Amendment immunity is a valid exercise of Congress’s Section 5 power as applied in the provision of paratransit services. Indeed, the Lane Court’s finding that there is an extensive history of unconstitutional discrimination against persons with disabilities and that Title II’s remedies are “an appropriate response” to that “history and pattern of unequal treatment” indicates that a litigant would be able to meet the first two factors of the Lane abrogation test. What remains undetermined is whether public transportation constitutes a constitutional right that Congress sought to enforce when it enacted Title II.
During the passage of Title II, the vital link between adequate transportation and the ability to exercise fundamental rights was repeatedly emphasized. As one congressman observed, transportation plays a “crucial role” in our lives and is “the veritable lifeline which enables all persons to enjoy the full economic and social benefits which our country offers. To be denied effective transportation is to be denied the full benefits of employment, public and private services, and other basic opportunities.” 136 Cong. Rec. H2421, H2433 (daily ed. May 17, 1990) (statement of Rep. Luken). No fundamental right can mean anything if the state prevents you from getting to where you need to be in order to exercise that right. See S. Rep. 101-16, at 13 (1990).
Plaintiffs’ counsel in the WMATA litigation were in fact able to identify individual members of the class who were stymied in exercising specific fundamental rights such as voting, attending services at places of worship, and serving on juries. These facts alone should defeat any claim of sovereign immunity, as people with disabilities would never be able to take advantage of the right to access the courts afforded by Lane if they were unable to get to the courthouse. The more challenging legal question that will eventually need to be addressed is whether a paratransit rider has a fundamental right to comparable transportation services regardless of where he or she may choose to go.
The Messy Issue of Attorney Fees
The ADA contains a provision that explicitly authorizes recovery of attorney fees and other costs of litigation. It provides that a court “may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses and costs . . .” 42 U.S.C. § 12205. The term “prevailing party” has historically applied an analysis called the “catalyst theory,” whereby a plaintiff was entitled to fees if the lawsuit brought about a voluntary change in the defendant’s conduct. In short, if filing the lawsuit proved to be the catalyst for the defendant’s compliance, the plaintiff was deemed to have prevailed even though the case never proceeded to judgment.
In Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), the Supreme Court significantly narrowed the availability of attorney fees by rejecting the catalyst theory. The Court reasoned that “prevailing party” was a term of art that, according to Black’s Law Dictionary, meant a “party in whose favor a judgment is rendered . . .” Id. at 603. Attorney fees are no longer available if a defendant voluntarily eliminates the challenged conduct, even if the change was brought about by the lawsuit. Thus, a paratransit provider who eventually complies with the plaintiffs’ demands after years of litigation could essentially make the case moot on the eve of trial—after the plaintiffs had expended extensive resources—and avoid paying attorney fees. This is especially problematic in paratransit litigation where plaintiffs principally seek injunctive relief, namely, ordering the defendant to improve the system. While plaintiffs can also seek compensatory damages under Title II, the ability to prevail on such damages requires proof that the state acted with either “deliberate indifference” or “discriminatory animus.”
The impact of Buckhannon on paratransit litigation is further complicated by the fact that these systems frequently rely on expert testimony to prove that the system as a whole works, and that the testimony of inadequate service from tens of paratransit riders is irrelevant because hundreds or even thousands of people use the service daily. For example, while consistently maintaining that MetroAccess—WMATA’s paratransit system—had an on-time performance rate of 95 percent or better, and characterizing the named plaintiffs as anecdotal outliers, WMATA budgeted approximately $250,000 to retrain service and data experts to assess flaws in its operations and statistical analysis. The agency also issued a request for proposals on a significantly overhauled contract for paratransit services and eventually retained one of the nation’s largest and most experienced paratransit providers. WMATA’s multiyear effort to rebut what had repeatedly been characterized as anecdotal evidence had provided the agency with a roadmap and a powerful incentive to finally start fixing systemic problems in its paratransit system.
The “bad news” was that WMATA largely undercut the plaintiffs’ counsel’s ability to obtain attorney fees for their efforts. Having conducted extensive discovery (which involved some forty depositions and a hotly contested order that required the agency to incur some $500,000 in costs to recover e-mails that were not preserved) and extensive motion practice (where the class was certified and a series of motions to dismiss were denied), WMATA “voluntarily” elected to increase the MetroAccess budget by $4 million a year over the next three-year period. The budget increase was approximately equal to what WMATA’s experts opined was needed to improve the system. It is at this point in the litigation that the judge would need to determine if this was one of those “rare” instances where a court should enjoin a governmental agency and begin some potentially long-term, burdensome, and institutionally difficult oversight of the paratransit system. In essence, WMATA had successfully positioned the litigation so that an injunction was less likely to issue, the class would not be the prevailing party, and attorney fees were not justified under Buckhannon.
Although the WMATA litigation was prosecuted on a pro bono basis by a large private law firm that had pledged its fees to the nation’s oldest not-for-profit civil rights organization, the Buckhannon decision will certainly deter not-for-profit and publicly funded organizations from taking on the complexities and costs of paratransit litigation. There is no doubt that lawyers initiating paratransit litigation can play a vital role in identifying flaws in the system and working with stakeholders and experts to improve vital transportation services for people with disabilities. The real question is whether the litigation hurdles and strategies will derail these opportunities.