Lonberg v. City of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN LONBERG, an individual, 

Plaintiff-Appellee, No. 06-55781

v.

 D.C. No.

CV-97-00237-SGL

CITY OF RIVERSIDE, a municipal

corporation, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

February 2, 2009—Pasadena, California

Filed June 26, 2009

Before: Cynthia Holcomb Hall, Barry G. Silverman and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan;

Dissent by Judge Silverman

8067

LONBERG v. CITY OF RIVERSIDE 8069

COUNSEL

Gregory F. Hurley and Stacey L. Herter of Greenberg Traurig,

LLP, Costa Mesa, California, for the defendant-appellant.

Terry J. Kilpatrick, San Luis Obispo, California, and Page

Wellcome, Cardiff-by-the-Sea, California, for the plaintiff-

appellee.

OPINION

CALLAHAN, Circuit Judge:

In 1997, John Lonberg (“Lonberg”), a paraplegic, initiated

a lawsuit against the City of Riverside (“City”), alleging vio-

8070 LONBERG v. CITY OF RIVERSIDE

lations of the Americans with Disabilities Act (“ADA”) and

its accompanying regulations. The district court divided the

lawsuit into three phases. Phase one, the only phase at issue

in this appeal, concerns Lonberg’s claim that the City’s plan

to achieve ADA compliance did not meet the standards set

forth in 28 C.F.R. § 35.150(d). The district court granted Lon-

berg’s request for a permanent injunction and ordered the City

to prepare a transition plan that complies with section

35.150(d). The City appeals, arguing that section 35.150(d) is

not privately enforceable.

We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1),

see Bates v. United Parcel Serv., Inc., 511 F.3d 974, 984 (9th

Cir. 2007), and we REVERSE and VACATE the permanent

injunction.

I.

During the first phase of this lawsuit, Lonberg moved for

partial summary judgment regarding the City’s alleged non-

compliance with section 35.150(d), which requires public

entities to develop a “transition plan” for achieving the

ADA’s accessibility requirements.1 On June 12, 2000, the dis-

1

28 C.F.R. § 35.150(d) provides, in relevant part, as follows:

Transition Plan. (1) In the event that structural changes to facili-

ties will be undertaken to achieve program accessibility, a public

entity that employs 50 or more persons shall develop, within six

months of January 26, 1992, a transition plan setting forth the

steps necessary to complete such changes. A public entity shall

provide an opportunity to interested persons, including individu-

als with disabilities or organizations representing individuals with

disabilities, to participate in the development of the transition

plan by submitting comments. A copy of the transition plan shall

be made available for public inspection.

(2) If a public entity has responsibility or authority over streets,

roads, or walkways, its transition plan shall include a schedule for

providing curb ramps or other sloped areas where pedestrian

walks cross curbs,

LONBERG v. CITY OF RIVERSIDE 8071

trict court granted Lonberg’s motion, concluding that the City

had failed to comply with section 35.150(d). Significantly for

purposes of this appeal, in granting Lonberg’s motion the dis-

trict court commented in a footnote that “[p]laintiff ha[d] not

requested any specific remedy in connection” with his

motion, “and in particular [did] not request[ ] injunctive

relief.”

Lonberg subsequently moved for a preliminary injunction

directing the City to prepare an adequate transition plan. For

reasons that are not clear from the record before us, the dis-

trict court deemed Lonberg’s motion moot, and set a bench

trial for May 2001 on the adequacy of the City’s transition

plan. Nearly five years after the trial, on March 17, 2006, the

district court issued findings of facts and conclusions of law

in Lonberg’s favor.2 The court found numerous faults with the

City’s transition plan, including its purported failure to suffi-

ciently identify particular physical obstacles limiting accessi-

bility to the City’s streets, intersections, sidewalks and

crosswalks. It also faulted the plan for, among other things,

....

(3) The plan shall, at a minimum—

(i) Identify physical obstacles in the public entity’s facilities

that limit the accessibility of its programs or activities to individ-

uals with disabilities;

(ii) Describe in detail the methods that will be used to make the

facilities accessible;

(iii) Specify the schedule for taking the steps necessary to

achieve compliance with this section and, if the time period of the

transition plan is longer than one year, identify steps that will be

taken during each year of the transition period; and

(iv) Indicate the official responsible for implementation of the

plan.

2

While the parties litigated “phase one,” Lonberg also pursued his

claims for damages and injunctive relief in connection with the City’s

alleged failure to make its sidewalks and curb ramps accessible.

8072 LONBERG v. CITY OF RIVERSIDE

failing to describe in sufficient detail the methods the City

would use to achieve accessibility. Accordingly, the district

court entered a permanent injunction requiring the City to

“prepare a transition plan that complies with the ADA and

§ 35.150.”

After the district court entered the permanent injunction,

the City moved for a new trial, arguing for the first time that

section 35.150(d) is not enforceable through a private cause

of action. Despite Lonberg’s objection that the City had

waived any such argument, the district court denied the City’s

motion on its merits, holding that “Lonberg does have a pri-

vate right of action . . . for injunctive relief compelling the

City to comply with its obligations under Section 35.150(d).”

II.

The City appeals, seeking to vacate the permanent injunc-

tion based on Lonberg’s alleged lack of standing to privately

enforce section 35.150(d).

A.

[1] On appeal, Lonberg maintains that the City has waived

its challenge regarding the enforceability of section 35.150(d)

by failing to raise it until after trial. Specifically, he asserts

that the City’s challenge is a waivable Rule 12(b)(6) defense.

See Fed. R. Civ. P. 12(h)(2) (providing that a Rule 12(b)(6)

defense must be raised no later than trial). Although the City’s

challenge may be characterized as a Rule 12(b)(6) defense, it

also implicates the legal validity of the injunction. We have,

in the past, addressed such issues even where they were not

timely raised below, and we conclude that it is a proper exer-

cise of our discretion to do so here. Cf. Price v. City of Stock-

ton, 390 F.3d 1105, 1108 (9th Cir. 2004) (reaching the issue

of whether a statute created a private right of action even

when the district court failed to address it in the first

instance); Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104,

LONBERG v. CITY OF RIVERSIDE 8073

1114 (9th Cir. 2006) (exercising discretion to reach a purely

legal issue that plaintiffs raised only during oral argument

before the district court).

[2] Reaching the merits of this issue results in no harm to

Lonberg, since he had an opportunity to brief this issue fully

in district court.3 Indeed, the district court declined to find

waiver, and addressed this issue on its merits, adopting the

Tenth Circuit’s view that section 35.150(d) is privately

enforceable. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850,

858 (10th Cir. 2003). Accordingly, we conclude that this

issue, which was raised below and addressed on its merits by

the district court, and which underpins the validity of the

injunction at issue, is properly before us for a determination

on the merits.

B.

We review de novo whether a statute or regulation creates

a private cause of action. Townsend v. Univ. of Alaska, 543

F.3d 478, 482 (9th Cir. 2008). Whether section 35.150(d)

creates a private right of action is an issue of first impression

in this court, and one on which other circuits have split. Chaf-

fin, 348 F.3d at 858 (holding that section 35.150(d) creates a

private right of action); Ability Ctr. of Greater Toledo v. City

of Sandusky, 385 F.3d 901, 914 (6th Cir. 2004) (holding that

section 35.150(d) does not create a private right of action);

Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006)

(same). We agree with the First and Sixth Circuits and hold

that section 35.150(d) does not create a private right of action.

1. Alexander v. Sandoval

The Supreme Court’s decision in Alexander v. Sandoval,

3

Moreover, as noted below, we conclude that Lonberg’s remedy lies not

in the enforcement of a transition plan, but in the removal of barriers to

meaningful access.

8074 LONBERG v. CITY OF RIVERSIDE

532 U.S. 275 (2001), governs our analysis, as it sets forth the

framework for determining whether a federal regulation is

enforceable through a private right of action.

In Sandoval, a class of non-fluent English speakers sued the

Alabama Department of Public Safety, alleging that its

administration of an English-only driver’s license test violated

28 C.F.R. § 42.104(b)(2),4 “because it had the effect of sub-

jecting non-English speakers to discrimination based on their

national origin.” 532 U.S. at 278-79. The Court reversed an

injunction requiring the department to accommodate non-

English speakers, holding that 28 C.F.R. § 42.104(b)(2) was

not enforceable through a private cause of action. Id. at 293.

[3] The Court explained that “private rights of action to

enforce federal law must be created by Congress . . ., [and

that] [t]he judicial task is to interpret the statute Congress has

passed to determine whether it displays an intent to create not

just a private right but also a private remedy.” Id. at 286

(internal citations omitted).

The relevant statute in Sandoval was § 601 of Title VI of

the Civil Rights Act of 1964, as it was the statute that

§ 42.104(b)(2) was meant to implement.5 See id. at 278. Sec-

tion 601 bans recipients of federal funding from intentionally

discriminating against individuals “on the ground of race,

color, or national origin” in connection with any program or

activity covered by Title VI. Id. (citing 42 U.S.C. § 2000d).

The Court noted that Congress clearly intended § 601 to be

4

28 C.F.R. § 42.104(b)(2) prohibits a recipient of federal funding from

“utiliz[ing] criteria or methods of administration which have the effect of

subjecting individuals to discrimination because of their race, color, or

national origin . . . .”

5

Section 42.104(b)(2) was promulgated under § 602 of Title VI of the

Civil Rights Act of 1964, which authorizes federal agencies “to effectuate

the provisions of [§ 601] . . . by issuing rules, regulations, or orders of

general applicability.” Sandoval, 532 U.S. at 278 (quoting 42 U.S.C.

§ 2000d-1).

LONBERG v. CITY OF RIVERSIDE 8075

enforceable through a private right of action, see id. at 280

(citing 42 U.S.C. § 2000d-7, which “expressly abrogated

States’ sovereign immunity against suits brought in federal

court to enforce Title VI”), but determined that this cause of

action did not extend to all the regulations meant to imple-

ment it.

In determining whether a particular regulation is enforce-

able through a statute’s private right of action, the Court

explained that we must look to the statute itself and determine

whether it displays Congress’s intent to create the private

right purportedly contained in the regulation. Id. at 286. The

Court stated that absent such intent, “a cause of action does

not exist and courts may not create one, no matter how desir-

able that might be as a policy matter, or how compatible with

the statute.” Id. at 286-87.

The Court determined that § 601 only banned intentional

discrimination, and said nothing about activities that may

have a discriminatory effect. Accordingly, it held that the

disparate-impact regulations, though perhaps otherwise valid,

were not enforceable through § 601’s private cause of action

because they did not “simply apply § 601[‘s]” ban on inten-

tional discrimination and instead “forbid conduct that § 601

permits.” Id. at 285. In other words, because the plain lan-

guage of § 601 only banned intentional discrimination, only

those regulations effectuating that ban could be enforced

through § 601’s private cause of action. To hold otherwise,

the Court reasoned, would allow “language in a regulation . . .

[to] conjure up a private cause of action that has not been

authorized by Congress.” Id. at 291.

[4] Thus, Sandoval instructs that because only Congress

can create a private right of action through statute, we must

examine a challenged regulation in the context of the statute

it is meant to implement. Only those regulations effectuating

the statute’s clear prohibitions or requirements are enforce-

able through the statute’s private right of action; regulations

8076 LONBERG v. CITY OF RIVERSIDE

that do not encapsulate the statutory right and corresponding

remedy are not privately enforceable.

2. Application of Sandoval to section 35.150(d)

[5] In determining whether section 35.150(d) is enforceable

through a private right of action, we look to the statute it is

meant to implement: § 202 of Title II of the ADA, which pro-

hibits discrimination by public entities on the basis of disability.6

Section 202 is enforceable through a private right of action,

Ability Center of Greater Toledo v. City of Sandusky, 385

F.3d 901, 906 (6th Cir. 2004), (citing Barnes v. Gorman, 536

U.S. 181, 184-85 (2002)), and provides that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132 (1990).

[6] The plain language of § 202 prohibits public entities

from discriminating against qualified disabled individuals in

its administration of services and programs. This prohibition

against discrimination is universally understood as a require-

ment to provide “meaningful access.” See, e.g., Mark H. v.

Lemahieu, 513 F.3d 922, 937 (9th Cir. 2008) (noting that the

ADA requires reasonable modifications necessary to ensure

“meaningful access”) (citing Southeastern Comty. College v.

Davis, 442 U.S. 397, 410 (1979)); Ability Ctr., 385 F.3d at

913 (noting Title II’s express aim of providing meaningful

access by requiring public entities to alter city streets and

sidewalks); Chaffin, 348 F.3d at 857 (noting its prior holding

that “the ADA requires public entitles to provide disabled

individuals ‘meaningful access’ ”). Section 202 says nothing

about a public entity’s obligation to draft a detailed plan and

6

Section 35.150(d) was promulgated by the Attorney General pursuant

to § 204 of the ADA, 42 U.S.C. § 12134, in order to implement § 202. See

28 C.F.R. § 35.101.

LONBERG v. CITY OF RIVERSIDE 8077

schedule for achieving such meaningful access, nor does it

create a private right to such a plan.

[7] Further, and perhaps most importantly, nothing in the

language of § 202 indicates that a disabled person’s remedy

for the denial of meaningful access lies in the private enforce-

ment of section 35.150(d)’s detailed transition plan require-

ments. See Sandoval, 532 U.S. at 286 (emphasizing that the

operative statute must display “an intent to create not just a

private right but also a private remedy”). The existence or

non-existence of a transition plan does not, by itself, deny a

disabled person access to a public entity’s services, nor does

it remedy the denial of access.7 Indeed, a public entity may be

fully compliant with § 202 without ever having drafted a tran-

sition plan, in which case, a lawsuit forcing the public entity

to draft such a plan would afford the plaintiff no meaningful

remedy. See Ability Ctr., 385 F.3d at 914; see Iverson, 452

F.3d at 101. Conversely, a public entity may have a transition

plan that complies with section 35.150(d), but may still be in

violation of § 202 by, for example, failing to alter its side-

walks in a way that provides meaningful access.

[8] We do not suggest that section 35.150(d) is invalid or

an otherwise improper exercise of agency discretion. We sim-

ply conclude that under Sandoval, it is not enforceable

through § 202’s private right of action because the obligations

it imposes are nowhere to be found in § 202’s plain language.

Moreover, requiring a public entity to create a transition plan

does not directly remedy a denial of § 202’s right to meaning-

ful access.

7

Tellingly, in his 2001 motion for partial summary judgment with

respect to the City’s transition plan, Lonberg sought no remedy other than

a declaration that the City was not in compliance with the regulation. Had

section 35.150(d) been the true vehicle to right the wrongs caused by the

City’s alleged ADA violations, Lonberg might have asked for some actual

relief in connection with his first attempt to enforce that regulation.

8078 LONBERG v. CITY OF RIVERSIDE

Our conclusions are consistent with the approach outlined

by the Sixth Circuit in Ability Center and adopted by the First

Circuit in Iverson. Ability Ctr., 385 F.3d at 914; Iverson, 452

F.3d at 100-01. Although the Tenth Circuit held otherwise in

Chaffin, it did not address whether § 202 evinced congressio-

nal intent to create a private right to a transition plan, or

whether such a plan would remedy the denial of meaningful

access. Instead, it applied Sandoval broadly to a host of ADA

regulations, and without addressing each one individually

concluded that they all “simply provide[d] the details neces-

sary to implement the statutory right created by § [202] . . .

of the ADA,” and did “not prohibit otherwise permissible

conduct.” Chaffin, 348 F.3d at 854, 857-58 (holding that 28

C.F.R. §§ 35.150, 35.151, and the Americans with Disabilities

Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. pt. 36,

app. A, were all privately enforceable).

It is true that section 35.150(d) does not “prohibit” conduct

that is otherwise permissible under § 202 as the challenged

regulation in Sandoval did with respect to § 601 of Title VI

of the Civil Rights Act. However, we read Sandoval to require

a more particularized review of the challenged regulation than

was undertaken by the Tenth Circuit in Chaffin, in addition to

a determination of whether the regulation effectuates the stat-

utory right and corresponding remedy. As set forth above, the

application of this requisite inquiry with respect to 35.150(d)

leads us to conclude that it is not enforceable through § 202’s

private right of action. This holding does not preclude another

panel from finding that other regulations promulgated to

effectuate § 202 are privately enforceable, nor does it prevent

Lonberg from pursuing his pending claims for damages and

injunctive relief raised in the other phases of this litigation.

Indeed, to the extent the City is in violation of the ADA and

its attendant regulations, Lonberg’s true remedy would lie in

an injunction requiring the actual removal of barriers that pre-

vent meaningful access.

LONBERG v. CITY OF RIVERSIDE 8079

III.

[9] Based on the foregoing, we hold that 28 C.F.R.

§ 35.150(d) is not enforceable through the private right of

action under § 202 of Title II, 42 U.S.C. § 12132, and we

REVERSE and VACATE the district court’s permanent

injunction.

SILVERMAN, Circuit Judge, dissenting:

Because I believe the City of Riverside waived its argu-

ment that 28 C.F.R. § 35.150(d) is not privately enforceable,

I dissent.

The City did not raise this defense in its answer, in a

motion to dismiss, in a motion for summary judgment, or

even at trial. Instead, the City waited until after trial — after

the district court issued a decision in Lonberg’s favor — to

argue for the first time in a motion for new trial that

§ 35.150(d) is not privately enforceable. Even worse, after

Lonberg argued in his opening brief to us that the City had

waived this argument by not raising it before trial, the City

offered not one word of rebuttal about the waiver argument.

It seems to me the City has doubly waived its argument — it

did not raise it prior to trial in the district court and it failed

to reply to the waiver argument made before us in the court

of appeals.

Under Federal Rule of Civil Procedure 12(h)(2), a Rule

12(b)(6) defense must be raised at or before trial. Here, the

City raised its defense after the trial concluded and after the

district court rendered a decision against it, even though “the

City’s [defense] may be characterized as a Rule 12(b)(6)

defense,” as the majority itself acknowledges.

Even if we have the discretion to reach this issue notwith-

standing the City’s failure to perfect it below, I do not see

8080 LONBERG v. CITY OF RIVERSIDE

why we should. The City’s belated assertion of this new

defense is most unfair to Lonberg who prevailed at trial in the

face of the defenses that were raised and litigated. Why

should the City be allowed to wait until it loses and then get

another chance to raise an entirely new non-jurisdictional

defense that was perfectly available before? This makes a

mockery of the rules of civil procedure requiring that claims

and defenses be timely raised. There are good reasons for

these rules, too — like fairness and avoidance of surprise.

What is the City’s answer to Lonberg’s assertion that the

new argument has been waived? Nothing. Not a word. In its

brief before us, the City offered no explanation whatsoever

for its failure to raise its argument earlier, or even a justifica-

tion for why the argument has not been waived. The City’s

brief is totally silent in response to Lonberg’s claim of waiver.

This failure alone counsels against the exercise of discretion

to consider the City’s new-found position at this late date.

I would affirm.