John Karczewski v. Dch Mission Valley LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN KARCZEWSKI, No. 15-55633

Plaintiff-Appellant,

D.C. No.

v. 3:14-cv-02639-

BAS-BLM

DCH MISSION VALLEY LLC, a

California Limited Liability

Company, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted February 9, 2017

Pasadena, California

Filed July 10, 2017

Before: Susan P. Graber, Jay S. Bybee,

and Morgan Christen, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge Bybee, dubitante

2 KARCZEWSKI V. DCH MISSION VALLEY

SUMMARY*

Americans with Disabilities Act

The panel reversed the district court’s dismissal of a claim

that the defendant automobile dealership violated Title III of

the Americans with Disabilities Act by refusing to install

temporary vehicle hand controls for test-drives of a car

offered for sale.

The panel held that the plaintiff stated a claim under

42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public

accommodation to “make reasonable modifications in

policies, practices, or procedures, when such modifications

are necessary to afford . . . goods, services, facilities,

privileges, advantages, or accommodations to individuals

with disabilities.”

The panel held that the plaintiff did not state a claim

under § 12182(b)(2)(A)(iv), which requires the removal of

architectural barriers in existing facilities, because the

“barrier” that the plaintiff encountered could not reasonably

be described as an architectural barrier in an existing facility.

The barrier was the lack of hand controls in the defendant’s

cars, and the cars that the defendant offered for sale were

goods, not facilities.

The panel held that two implementing regulations,

28 C.F.R. §§ 36.307(a) and 36.306, did not preclude the

plaintiff’s statutory claim.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KARCZEWSKI V. DCH MISSION VALLEY 3

Acquiescing dubitante, Judge Bybee wrote that he would

hold that 28 C.F.R. § 36.304(b)(21), enforcing the

architectural barriers provision of the ADA and requiring the

installation of vehicle hand controls, is not a permissible

construction of the statute. Judge Bybee objected to the

majority’s analysis of § 12182(b)(2)(A)(ii) because it

enabled anything to be construed as a policy and because

the Department of Justice’s regulations and manuals had

taken a more modest approach to the terms “policies,

practices, and procedures.”

COUNSEL

Russell Clive Handy (argued), Center for Disability Access,

San Diego, California, for Plaintiff-Appellant.

Lann G. McIntyre (argued), Jonna D. Lothyan, Ryan P.

Garchie, and Jeffry A. Miller, Lewis Brisbois Bisgaard &

Smith LLP, San Diego, California, for Defendant-Appellee.

Felicia Ruth Reid (argued), Hirschfeld Kraemer LLP, San

Francisco, California, for Amici Curiae National Automobile

Dealers Association, California New Car Dealers

Association, and National Mobility Equipment Dealers

Association.

Christopher C. Wang and Sharon M. McGowan, Attorneys;

Vanita Gupta, Principal Deputy Assistant Attorney General;

Appellate Section, Civil Rights Division, United States

Department of Justice, Washington, D.C.; for Amicus Curiae

United States.

4 KARCZEWSKI V. DCH MISSION VALLEY

OPINION

GRABER, Circuit Judge:

Plaintiff John Karczewski, who is paralyzed from the

waist down, sought to test-drive one of the cars offered for

sale by Defendant DCH Mission Valley LLC. He requested

that Defendant temporarily install hand controls so that he

could test-drive the car, but Defendant declined. Plaintiff

then brought this action, alleging that Defendant’s refusal to

install temporary vehicle hand controls violated the

Americans with Disabilities Act (“ADA”). The district court

granted Defendant’s motion to dismiss, Fed. R. Civ. P.

12(b)(6), holding that, as a matter of law, a plaintiff may not

bring a claim under the ADA requiring a public

accommodation to install vehicle hand controls for test-

drives, no matter the circumstances.

Reviewing de novo, Brown v. Elec. Arts, Inc., 724 F.3d

1235, 1240 (9th Cir. 2013), and resolving a split among

district courts in our circuit, we reverse and remand.

Accepting the allegations in the complaint as true, as we

must, id. at 1247, Plaintiff has stated a claim under 42 U.S.C.

§ 12182(b)(2)(A)(ii), which requires a public accommodation

to “make reasonable modifications in policies, practices, or

procedures, when such modifications are necessary to afford

such goods, services, facilities, privileges, advantages, or

accommodations to individuals with disabilities.”

FACTUAL AND PROCEDURAL HISTORY

Plaintiff “is a level T10/11 paraplegic who is paralyzed

from the waist down, cannot walk, and . . . uses a wheelchair

for mobility.” “He drives a specially equipped vehicle with

KARCZEWSKI V. DCH MISSION VALLEY 5

hand controls,” and he “has a disabled persons placard . . .

[and] a driver’s license.” Defendant is “a facility open to the

public . . . and a business establishment” that sells cars.

Defendant permits potential buyers “the opportunity to test

drive vehicles that they are considering buying.”

Plaintiff visited Defendant’s business with the intention

of buying a used car. He asked Defendant’s employees “for

the opportunity to test drive a vehicle and informed them that

he could not use his legs and, therefore, needed to have

vehicle hand controls temporarily installed on the vehicle so

that he could avail himself of this opportunity.” The

employees told Plaintiff that Defendant “does not install

vehicle hand controls on any vehicles for sale and that they

would not do so for him as an accommodation.”

Plaintiff alleges that “[t]here are numerous companies that

sell (and will install) vehicle hand controls that are universal

in design, meaning that they can be used on any vehicle, and

their installation does not render any safety features

inoperable or cause any permanent modification or damage

to the vehicle itself.” “Such hand controls are inexpensive,

are widely used within the car rental agency world for

temporary installation and removal, and could be easily

installed by [Defendant] without much difficulty or expense.”

Following Defendant’s refusal to facilitate a test-drive,

Plaintiff brought this action, alleging that Defendant’s failure

to install temporary vehicle hand controls violated the ADA.1

1

Plaintiff also alleged violations of state law. The district court

dismissed those claims on the ground that they “are predicated on the

viability of his ADA claim.” Because we reverse the dismissal of the

ADA claim, we also reverse the dismissal of the state-law claims.

6 KARCZEWSKI V. DCH MISSION VALLEY

In particular, Plaintiff alleges that Defendant discriminated by

reason of:

a. A failure to make reasonable

modifications in policies, practices, or

procedures, when such modifications are

necessary to afford goods, services, facilities,

privileges, advantages, or accommodations to

individuals with disabilities, unless the

accommodation would work a fundamental

alteration of those services and facilities.

42 U.S.C. § 12182(b)(2)(A)(ii).

b. A failure to remove architectural

barriers where s uch removal is

re a d i l y a c h i e v a b le. 42 U.S .C .

§ 12182(b)(2)(A)(iv). . . .

....

Among the barrier removal tasks that are

readily achievable to accomplish is installing

vehicle hand controls. 28 C.F.R.

§ 36.304(b)(21).

The district court dismissed the claim, holding that it was

foreclosed by 28 C.F.R. § 36.307(a), which states that “[t]his

part does not require a public accommodation to alter its

inventory to include accessible or special goods that are

designed for, or facilitate use by, individuals with

disabilities.” Plaintiff timely appeals.

District courts have divided on the legal question

presented in this appeal: whether a person seeking to test-

KARCZEWSKI V. DCH MISSION VALLEY 7

drive a car may bring a claim under the ADA to require an

automobile dealership to install temporary vehicle hand

controls, at least in some circumstances, or whether such

claims necessarily fail. Compare, e.g., Tate v. Deoca, No.

cv14-08738SJO(MRWx), 2015 WL 12552042 (C.D. Cal.

June 30, 2015) (dismissing a claim similar to Plaintiff’s

claim), and Schutza v. FRN of San Diego, LLC, No.

14cv628JM(RBB), 2015 WL 2152207 (S.D. Cal. May 7,

2015) (same); with Funches v. Barra, No. 14civ.7382(KPF),

2016 WL 2939165 (S.D.N.Y. May 17, 2016) (denying a

motion to dismiss a similar claim), and Schutza v. CarMax

Auto Superstores Cal., LLC, No. 14cv2617L(JLB), 2015 WL

1632716 (S.D. Cal. Apr. 13, 2015) (same). We received two

helpful briefs from amici: a brief from the United States, in

support of Plaintiff’s position; and a brief from the National

Automobile Dealers Association, the California New Car

Dealers Association, and the National Mobility Equipment

Dealers Association, in support of Defendant’s position.

DISCUSSION

“Title III of the ADA prohibits discrimination by public

accommodations . . . .” Arizona ex rel. Goddard v. Harkins

Amusement Enters., Inc., 603 F.3d 666, 669 (9th Cir. 2010)

(citing 42 U.S.C. § 12182(a)). “Public accommodations must

start by considering how their facilities are used by non-

disabled guests and then take reasonable steps to provide

disabled guests with a like experience.” Baughman v. Walt

Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012).

Section 12182 begins with a “General rule” in subsection (a):

No individual shall be discriminated

against on the basis of disability in the full

and equal enjoyment of the goods, services,

8 KARCZEWSKI V. DCH MISSION VALLEY

facilities, privileges, advantages, or

accommodations of any place of public

accommodation by any person who owns,

leases (or leases to), or operates a place of

public accommodation.

42 U.S.C. § 12182(a). More specifically:

For purposes of subsection (a) of this

section, discrimination includes—

....

(ii) a failure to make reasonable

modifications in policies, practices, or

procedures, when such modifications are

necessary to afford such goods, services,

facilities, privileges, advantages, or

accommodations to individuals with

disabilities, unless the entity can demonstrate

that making such modifications would

fundamentally alter the nature of such goods,

services, facilities, privileges, advantages, or

accommodations;

....

(iv) a failure to remove architectural

barriers, and communication barriers that are

structural in nature, in existing facilities, and

transportation barriers in existing vehicles and

rail passenger cars used by an establishment

for transporting individuals (not including

barriers that can only be removed through the

KARCZEWSKI V. DCH MISSION VALLEY 9

retrofitting of vehicles or rail passenger cars

by the installation of a hydraulic or other lift),

where such removal is readily achievable; and

(v) where an entity can demonstrate that

the removal of a barrier under clause (iv) is

not readily achievable, a failure to make such

goods, services, facilities, privileges,

advantages, or accommodations available

through alternative methods if such methods

are readily achievable.

Id. § 12182(b)(2)(A).

“Congress entrusted the Attorney General with the

responsibility of promulgating Title III’s implementing

regulations,” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d

1075, 1080 (9th Cir. 2004) (citing 42 U.S.C. § 12186(b)), and

the Attorney General issued regulations, through notice and

comment, found at 28 C.F.R. pt. 36. Accordingly, when

analyzing an ambiguity or a gap in the statute, we analyze

those regulations under the familiar Chevron framework.

Baughman, 685 F.3d at 1136.

A. Reasonable Modifications in Policies, Practices, or

Procedures

Plaintiff contends that Defendant’s refusal to install

vehicle hand controls constitutes

a failure to make reasonable modifications in

policies, practices, or procedures, when such

modifications are necessary to afford such

goods, services, facilities, privileges,

10 KARCZEWSKI V. DCH MISSION VALLEY

advantages, or accommodations to individuals

with disabilities, unless the entity can

demonstrate that making such modifications

would fundamentally alter the nature of such

goods, services, facilities, privileges,

advantages, or accommodations[.]

42 U.S.C. § 12182(b)(2)(A)(ii). To prevail on a claim under

that statutory provision, Plaintiff must establish that:

(1) he is disabled as that term is defined by

the ADA; (2) the defendant is a private entity

that owns, leases, or operates a place of public

accommodation; (3) the defendant employed

a discriminatory policy or practice; and (4) the

defendant discriminated against the plaintiff

based upon the plaintiff’s disability by

(a) failing to make a requested reasonable

modification that was (b) necessary to

accommodate the plaintiff’s disability.

Fortyune, 364 F.3d at 1082. If Plaintiff establishes a prima

facie case, then Defendant “must make the requested

modification unless it proves that doing so would alter the

fundamental nature of its business.” Id.

At this procedural stage, we must take as true the

allegations stated in the complaint. Brown, 724 F.3d at 1247.

Viewing the complaint through that lens, Plaintiff has stated

a claim under the ADA. Plaintiff alleges that (1) he is

disabled; (2) Defendant operates a car dealership that is a

public accommodation; (3) Defendant employed the

discriminatory policy or practice of providing a test-driving

privilege or service only to those persons capable of using

KARCZEWSKI V. DCH MISSION VALLEY 11

foot controls; and (4) Defendant discriminated against

Plaintiff by (a) failing to make the reasonable modification of

temporarily installing hand controls that can be added without

significant difficulty or expense, (b) which is necessary to

accommodate Plaintiff’s disability.

Plaintiff’s requested accommodation ultimately may

prove to be unreasonable. For example, Defendant asserts

that, to meet Plaintiff’s needs, Defendant must purchase hand

controls; create a training program for its mechanics; retain

mechanics trained to install the controls; determine the ability

of each customer to use hand controls; develop a protocol for

evaluating the customer’s needs; develop a procedure for

determining whether each vehicle can be adapted; maintain

a trained mechanic and “qualified driving rehabilitation

employee” who would be available during all business hours;

and account for increased potential liability and the resulting

increase in insurance premiums.

As noted, though, we must take Plaintiff’s plausible

allegations as true. Brown, 724 F.3d at 1247. Plaintiff has

alleged that hand controls are inexpensive, are easy to obtain,

work on all types of vehicles, do not disable any safety

features, cause no damage, and can be installed by Defendant

“without much difficulty or expense.” Defendant’s argument

to the contrary may ultimately carry the day, perhaps even at

summary judgment. See Fortyune, 364 F.3d at 1083

(“[W]hether a particular modification is ‘reasonable’ involves

a fact-specific, case-by-case inquiry that considers, among

other factors, the effectiveness of the modification in light of

the nature of the disability in question and the cost to the

organization that would implement it.” (internal quotation

marks omitted)). But taking the facts alleged in the complaint

as true, Plaintiff’s allegations suffice to establish that the

12 KARCZEWSKI V. DCH MISSION VALLEY

proposed modification to the test-driving privilege or service

is a reasonable one.

Plaintiff’s requested accommodation would not “alter the

fundamental nature of [Defendant’s] business.” Id. at 1082.

If the allegations in the complaint are true, Defendant would

still sell cars and would still offer test drives to its customers.

Plaintiff’s complaint does not suggest that individually

tailored controls would be required, nor does it suggest that

Defendant’s business model would have to accommodate on-

demand, unscheduled test drives of modified cars, as

Defendant argues. Cf. id. at 1084 (holding that a

modification to a seating policy at a movie theater would not

fundamentally alter the theater’s business).

In sum, taking the allegations in the complaint as true,

Plaintiff has stated a claim that Defendant discriminated

against him by failing to make a reasonable modification to

a policy, practice, or procedure.

In his separate opinion, Judge Bybee objects to the

foregoing analysis on a ground not advanced by Defendant.

In particular, he worries that Defendant’s policy of providing

a test-driving privilege or service only to those persons

capable of using foot controls may not be a “polic[y],

practice[], or procedure[]” under the ADA. His separate

opinion does not cite any case—and we have found

none—supporting its restrictive definition of “policies,

practices, or procedures.”

To the contrary, both the statute and our cases generally

reject restrictive interpretations of the ADA. See, e.g.,

42 U.S.C. § 12101(b)(1) (the stated purpose of the Act is “to

provide a clear and comprehensive national mandate for the

KARCZEWSKI V. DCH MISSION VALLEY 13

elimination of discrimination against individuals with

disabilities”); Cohen v. City of Culver City, 754 F.3d 690, 695

(9th Cir. 2014) (“We construe the language of the ADA

broadly to advance its remedial purpose.”). The principle of

broad construction is particularly apt here. As noted above,

§ 12182 begins with a “[g]eneral rule” in subsection (a) that

“[n]o individual shall be discriminated against on the basis of

disability . . . .” The “policies, practices, or procedures” text

is found in subsection (b)(2)(A) which, by its clear terms,

provides a non-exhaustive, illustrative list of certain actions

that qualify as discrimination. See also Spector v. Norwegian

Cruise Line Ltd., 545 U.S. 119, 128–29 (2005) (noting that

the general non-discrimination rule in subsection (a) is

“supplemented by various, more specific requirements,” such

as those found in subsection (b)(2)(A) (emphasis added)).

Against that backdrop, discrimination assuredly includes

Defendant’s denial of a privilege to disabled persons, such as

Plaintiff, when an allegedly simple, inexpensive, and

temporary solution exists.

We disagree with the separate opinion that, under our

interpretation, all ordinary “architectural barriers” claims may

be recast as “policy or practice” claims. A permanent

structural change to a building or surrounding fixtures, such

as “[m]aking curb cuts in sidewalks and entrances,” 28 C.F.R.

§ 36.304(b)(2), plainly qualifies as an “architectural barriers”

claim. But it would defy ordinary usage to assert that cutting

a permanent ramp into a sidewalk is a “modification” to a

“policy.” No matter how artfully drafted, the complaint

would seek a permanent structural change in actual concrete.

Not even creative lawyers ordinarily would describe such a

change as a modification of a policy. Here, by contrast,

Plaintiff seeks the temporary modification of a car for the

purpose of a short test-drive, relief that fits comfortably

14 KARCZEWSKI V. DCH MISSION VALLEY

within the ordinary understanding of a modification to a

policy—perhaps explaining why Defendant did not challenge

this aspect of Plaintiff’s claim and why the Department of

Justice filed an amicus brief urging us to find a viable “policy

and practice” claim.

Moreover, even assuming that some factual scenarios

plausibly could fit within more than one of Congress’ five

illustrative examples of discrimination, we fail to see what

problems that would cause. It is possible that Congress

intended for the more specific definition to govern over the

general definition; or perhaps Congress intended a plaintiff to

be able to proceed under alternative theories of

discrimination. But we need not address the issue of dueling

definitions here because all of us—the majority and Judge

Bybee—agree that the “architectural barriers” provision does

not apply to Plaintiff’s claim.

The separate opinion asserts that, if a court found that a

plaintiff could proceed under both definitions, our opinion

may have reduced the burden of proof because the “policy or

practice” definition might be easier for plaintiffs to prove.

Even if that were true, if Congress intended for both

standards to apply, then we must give effect to that intent.

But we disagree with the premise that a “policy” claim is

necessarily easier to prove than a “barriers” claim. Nothing

in the statute purports to subject the victims of architectural

discrimination to a higher burden. The prima facie case for

“reasonableness” under the “policy” definition appears, for

practical purposes, identical to the prima facie “readily

achievable” inquiry under the “barriers” definition. Compare

Fortyune, 364 F.3d at 1083 (describing the “reasonableness”

inquiry), with Disabled Rights Action Comm. v. Las Vegas

KARCZEWSKI V. DCH MISSION VALLEY 15

Events, Inc., 375 F.3d 861, 879–80 (9th Cir. 2004)

(describing the “readily achievable” inquiry). But a “policy”

claim—and not an “architectural barriers” claim—permits a

defendant to assert an affirmative defense that “making such

modifications would fundamentally alter the nature of such

goods, services, facilities, privileges, advantages, or

accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).

Accordingly, if any practical difference exists, a “policy”

claim is likely harder to prove because a plaintiff may have

to overcome an affirmative defense not available under the

“barriers” definition.

B. Architectural Barriers in Existing Facilities

Plaintiff also contends that Defendant’s refusal to install

vehicle hand controls constitutes “a failure to remove

architectural barriers . . . in existing facilities.”2 42 U.S.C.

§ 12182(b)(2)(A)(iv). In support, Plaintiff points to 28 C.F.R.

§ 36.304(a) and (b)(21). Section 36.304(a) states that “[a]

public accommodation shall remove architectural barriers in

existing facilities . . . where such removal is readily

achievable.” Section 36.304(b)(21) includes “[i]nstalling

vehicle hand controls” as one of 21 “[e]xamples of steps to

remove barriers.” We conclude that the statutory provision

does not apply in the circumstances of this case and that,

therefore, the regulation cannot apply here.

The ADA repeatedly treats “facilities” and “goods” as

distinct concepts when describing the reach of the

statute—Congress generally intended to ensure full and equal

2

We address this alternative contention both because the parties

focused much of their briefing on this statutory provision and because, as

just noted, an “architectural barriers” claim may be easier to prove.

16 KARCZEWSKI V. DCH MISSION VALLEY

enjoyment of “the goods, services, facilities, privileges,

advantages, or accommodations” of qualified businesses.

42 U.S.C. § 12182(a) (emphases added); id.

§ 12182(b)(1)(A)(i), (ii) & (iii); id. § 12182(b)(1)(B), (E); id.

§ 12182(b)(2)(A)(i), (ii), (iii) & (v); id. § 12182(b)(3). But

Congress limited this specific definition of discrimination to

“architectural barriers . . . in existing facilities.” Id.

§ 12182(b)(2)(A)(iv) (emphasis added).

The “barrier” that Plaintiff has encountered cannot

reasonably be described as an architectural barrier in an

existing facility. The barrier that Plaintiff faced was the lack

of hand controls in Defendant’s cars, and the cars that

Defendant offered for sale are clearly goods, not facilities.

See, e.g., Merri am -W eb s t er Dictionary,

https://www.merriam-webster.com/dictionary/goods

(visited June 30, 2017) (defining “goods” as “something

manufactured or produced for sale”). Commonly, by

contrast, “facility” means the physical structure that enables

(or facilitates) the business’ overall mission. See, e.g., id. at

https://www.merriam-webster.com/dictionary/facility

(“something (as a hospital) that is built, installed, or

established to serve a particular purpose”). Similarly, the

most common definition of “architecture” refers to “the art or

practice of designing and building structures.” Id. at

https://www.merriam-webster.com/dictionary/architecture;

see also Ox ford English Dictionary,

http://www.oed.com/view/Entry/10408 (visited June 30,

2017) (defining “architecture” as “[t]he art or science of

building or constructing edifices of any kind for human use”).

Read as a whole, the phrase—“architectural barriers in

existing facilities”—most naturally encompasses a business’

buildings and surrounding grounds. It would stretch the

ordinary meaning of the phrase too far—and it would conflict

KARCZEWSKI V. DCH MISSION VALLEY 17

with Congress’ choice to limit the reach of the “architectural

barriers” provision to “facilities” only, and not to “goods”—if

we interpreted the phrase, “architectural barriers in existing

facilities,” to include the lack of hand controls on Defendant’s

cars.

At the first step of the Chevron analysis, we ask “whether

Congress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of the matter

. . . .” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984). For the reasons stated above,

congressional intent is clear: The provision regulating

“architectural barriers in . . . existing facilities” plainly does

not apply to Plaintiff’s claim. But even if the statute were

ambiguous, at step two we conclude that, for the same

reasons, the agency’s construction is not “based on a

permissible construction of the statute.” Id. at 843.

Accordingly, the implementing regulation describing the

temporary installation of vehicle hand controls as an example

of removing an architectural barrier in an existing facility,

28 C.F.R. § 36.304(b)(21), is inapplicable to Plaintiff’s

claim.3

C. Additional Implementing Regulations

Defendant argues that, even if the text of the ADA is

broad enough to encompass Plaintiff’s claim, two of the

3

Our decision is limited, as it must be, to the particular question

before us. Nothing in this opinion is intended to cast doubt on the

application of this statutory section and the corresponding regulation to

other factual scenarios, such as the practice by rental-car companies of

installing vehicle hand controls in their rental cars. We decline the

separate opinion’s invitation to address factual situations and legal issues

not before us.

18 KARCZEWSKI V. DCH MISSION VALLEY

implementing regulations independently preclude his

statutory claim. We disagree.

Defendant first points to 28 C.F.R. § 36.307(a), which

states:

This part does not require a public

accommodation to alter its inventory to

include accessible or special goods that are

designed for, or facilitate use by, individuals

with disabilities.

Defendant reasons that installing temporary vehicle hand

controls will alter the vehicles that it sells, its vehicles for sale

constitute its inventory, and Plaintiff’s claim therefore fails.

Although Defendant’s argument appears plausible at first

blush, it does not withstand scrutiny.

The term “inventory” in this regulation means the

business’ set of items comprising its inventory as a whole—it

does not mean each individual item in the inventory. The

usual meaning of “inventory” is “an itemized list of current

assets: such as (1) a catalog of the property of an individual

or estate [or] (2) a list of goods on hand.” Merriam-Webster

Dictionary. And contextually, it is plain that Congress used

“inventory” in this ordinary sense. The regulation concerns

when a business must “alter its inventory to include

accessible or special goods.” 28 C.F.R. § 36.307(a)

(emphasis added). Similarly, the next subsection of the

regulation creates an exception to the general rule by

requiring that a “public accommodation shall order accessible

or special goods” in some circumstances. Id. § 36.307(b)

(emphasis added). The regulation thus pertains to the

circumstances in which a business must order additional

KARCZEWSKI V. DCH MISSION VALLEY 19

goods; it does not speak to Plaintiff’s requested

accommodation—a temporary, short-term modification to an

existing individual item already contained in Defendant’s

inventory. The district court in Funches, 2016 WL 2939165,

at *6, provided a helpful summary: “While places of public

accommodation are generally not required to alter their

inventories by manufacturing or ordering specialty goods,

they are required to make reasonable, temporary adjustments

to goods already in stock if doing so will help disabled

customers access the same goods and services as non-

disabled customers.”

Defendant next points to 28 C.F.R. § 36.306, which

states:

This part does not require a public

accommodation to provide its customers,

clients, or participants with personal devices,

such as wheelchairs; individually prescribed

devices, such as prescription eyeglasses or

hearing aids; or services of a personal nature

including assistance in eating, toileting, or

dressing.

Defendant reads that regulation to create a categorical rule

precluding any claim under the ADA that would require

public accommodations to provide “personal devices.”

Defendant then asserts that, because vehicle hand controls are

“personal devices” within the meaning of the regulation,

Plaintiff’s claim fails. For the reasons that follow, we are not

persuaded.

The phrase “personal devices” is flexible enough that it

could describe all devices that one uses personally—

20 KARCZEWSKI V. DCH MISSION VALLEY

encompassing wheelchairs, prescription eyeglasses, and

hearing aids, but also steering wheels, door handles, turn-

signal levers, gearshifts, radio knobs, brake pedals, and

accelerators. Under that broad definition, vehicle hand

controls, like vehicle foot controls, would qualify as

“personal devices” because a driver uses the controls

personally.

But if we were to adopt such a broad definition of

“personal devices,” it would cause a conflict in the

regulations. In particular, 28 C.F.R. § 36.303 requires

businesses, in certain circumstances, to provide many devices

that a customer uses personally. For example, § 36.303(g)

requires movie theaters to provide “audio description

devices,” which aurally describe to the patron the action

occurring on the big screen; and the same regulation requires

movie theaters to provide “captioning devices,” which

visually depict the movie’s auditory features, such as

dialogue. Those devices are used personally by customers.

See id. § 36.303(g)(iii) & (iv) (describing the devices as “the

individual device that a patron may use at any seat”). Thus,

under a broad reading of “personal devices,” the regulations

conflict: One regulation flatly prohibits devices-used-

personally, and a nearby regulation details many devices-

used-personally that businesses must provide.

When confronted with an irreconcilable conflict in two

legal provisions, we may apply the interpretive principle that

the specific governs over the general. In essence, the general

rule applies unless a more specific rule provides otherwise.

Applied here, that principle would operate to carve out an

exception to the general prohibition on “personal devices”

whenever the regulations elsewhere required the provision of

“personal devices.” Although that interpretation appears

KARCZEWSKI V. DCH MISSION VALLEY 21

plausible at first blush, we are persuaded that the agency did

not intend that legalistic analysis.

The conflict here is not subtle or abstract: One regulation

forbids all “personal devices,” and a nearby regulation

requires some “personal devices.” Cf. Nat’l Ass’n of Home

Builders v. San Joaquin Valley Unified Air Pollution Control

Dist., 627 F.3d 730, 737 (9th Cir. 2010) (“It would be odd if

the Act took away . . . with one hand what it granted with the

other.”). Reading § 36.306 to encompass all devices-used-

personally thus requires adding an implicit

qualifier—“Except as otherwise provided in this part”—to

§ 36.306: “Except as otherwise provided in this part, this

part does not require a public accommodation to provide . . .

personal devices . . . .” But the agency clearly knew how to

write its regulations in that fashion. For example, § 36.103(a)

states: “Except as otherwise provided in this part, this part

shall not be construed [in a certain way].” Similarly,

§ 36.508(a) states: “Except as otherwise provided in this

section and in this part, this part shall become effective on

January 26, 1992.” We do not think that the agency would

have added an explicit qualification to other regulations while

at the same time leaving it up to the courts to read an implicit

qualification into this particular regulation.

Rather than reading § 36.306 in a way that conflicts with

§ 36.303, we read the regulations in harmony. In other

words, we apply “the familiar rule of construction that, where

possible, provisions of a [regulation] should be read so as not

to create a conflict.” La. Pub. Serv. Comm’n v. FCC,

22 KARCZEWSKI V. DCH MISSION VALLEY

476 U.S. 355, 370 (1986).4 The examples of devices listed in

the regulation—wheelchairs, prescription eyeglasses, and

hearing aids—suggest a narrower definition. Cf. Yates v.

United States, 135 S. Ct. 1074, 1085 (2015) (“a word is

known by the company it keeps”). All of those devices are

independently useful objects that a person possesses for a

general purpose. Understood in that manner, the two

regulations do not conflict, because the devices listed in

§ 36.303 do not meet that definition. For example, the audio

and visual devices described above have no utility by

themselves; they must be coordinated with the showing of the

film.

This narrower interpretation of “personal devices”

comports with the overall purpose of the ADA to require

businesses to accommodate persons with disabilities

whenever doing so is reasonable. From a practical

standpoint, it would make little sense to require all businesses

to make available, for example, wheelchairs or a wide array

of prescription eyeglasses. It is far more practical, and

consistent with the intent of the ADA, to expect a person in

need of such a general-purpose device to possess one.

The same reasoning yields the opposite result with respect

to specialized devices that must be installed or coordinated

with a business’ system. For example, it would make little

sense to require all persons with hearing disabilities to

possess a captioning device that may or may not work with a

4

That interpretive canon, like “the specific governs over the general,”

ordinarily applies to provisions of a statute. But we regularly hold that a

generic canon of statutory interpretation “applies equally to regulations,”

Lezama-Garcia v. Holder, 666 F.3d 518, 531 n.13 (9th Cir. 2011), and we

see no reason why these two canons do not apply equally to regulations.

KARCZEWSKI V. DCH MISSION VALLEY 23

particular movie theater’s captioning system. Instead, it

makes far more sense to expect a business to provide the

personal receivers that work with the theater’s system.

Indeed, the agency made that intent clear when it

promulgated these regulations. See Nondiscrimination on the

Basis of Disability by Public Accommodations and in

Commercial Facilities, 35 Fed. Reg. 35544-01, 35,571 (July

26, 1991) (“[T]his section [§ 36.306] does not preclude the

short-term loan of personal receivers that are part of an

assistive listening system.”).

The same analysis applies to vehicle hand controls. It

makes little sense to require a person to possess a spare set of

hand controls—of a brand that a dealership may or may not

know how to install—simply for the few occasions in the

person’s lifetime when he or she wants to test-drive a car. It

is far more practical to require dealerships that voluntarily

offer the privilege or service of test-drives to carry hand

controls—of a brand that the dealership knows how to

install—for use when a customer seeks a test-drive

(assuming, of course, that providing hand controls is

“reasonable” and that the other statutory requirements are

met).

In sum, our narrower reading of “personal devices” in

§ 36.306 is more consistent with the overall structure of the

regulations and with the purpose of the ADA. Accordingly,

§ 36.306 does not preclude Plaintiff’s claim.

24 KARCZEWSKI V. DCH MISSION VALLEY

CONCLUSION

Plaintiff has stated a claim under 42 U.S.C. § 12182(a)

and (b)(2)(A)(ii), and nothing in the implementing

regulations categorically precludes that claim. We reiterate

the limited nature of our holding, which necessarily assumes

the truth of Plaintiff’s allegations. For many car dealerships,

the accommodation of installing temporary vehicle hand

controls may prove to be unreasonably burdensome. But we

cannot conclude that the ADA categorically precludes a claim

that a car dealership must provide hand controls for test

drives, which necessarily would encompass situations in

which the provision of hand controls would be reasonable.

For example, the installation of vehicle hand controls is likely

reasonable at a large dealership that regularly installs hand

controls, has spare universal hand controls on hand, and

employs many mechanics with expertise in installing hand

controls, when advance notice is given by a customer with

clear expertise in using hand controls. Rather than

interpreting the ADA never to require the provision of vehicle

hand controls, no matter the situation, we conclude that it is

more consistent with the text of the ADA, with the Act’s

overall intent, and with our caselaw, to inquire into the

underlying facts. See, e.g., Baughman, 685 F.3d at 1135

(“Public accommodations must start by considering how their

facilities are used by non-disabled guests and then take

reasonable steps to provide disabled guests with a like

experience.”).

REVERSED and REMANDED.

KARCZEWSKI V. DCH MISSION VALLEY 25

BYBEE, Circuit Judge, acquiescing dubitante:

The Old Testament prophet Elijah once asked the people

of Samaria, “How long halt ye between two opinions?” 1

Kings 18:21 (King James). Like the ancient inhabitants of the

Northern Kingdom, I find myself in the perplexing situation

of having halted between two opinions—because I am neither

able to join the majority opinion nor have I been able to write

a full-throated dissent. Recognizing that it isn’t any better a

place to be today than it was in Elijah’s day (but also

admitting that his audience had weightier questions on their

minds than questions of statutory interpretation), it is

nevertheless the place in which I find myself. I acquiesce in

the judgment, but dubitante.1

I

I am going to start in a different place from the majority.

I wish to begin with the plaintiff’s sole issue on appeal:

Whether we must defer to DOJ’s regulation requiring that car

dealers “[i]nstall[] vehicle hand controls,” 28 C.F.R.

§ 36.304(b)(21), as a reasonable construction of the ADA.

1

See Credit Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119,

1151 (9th Cir. 2005) (Berzon, J., concurring in the judgment) (“[B]ecause

I cannot conclude with any reasonable certainty that the result . . . is

necessarily wrong given the above-articulated concerns, the only prudent

course of action for me is to set out my views in detail, as I have done, and

to concur in the judgment, while remaining dubitante. See LON L.

FULLER, ANATOMY OF THE LAW 147 (1968) (‘[E]xpressing the epitome of

the common law spirit, there is the opinion entered dubitante—the judge

is unhappy about some aspect of the decision rendered, but cannot quite

bring himself to record an open dissent.’).” (third alteration in original)

(emphasis omitted)). See generally Jason J. Czarnezki, The Dubitante

Opinion, 39 AKRON L. REV. 1 (2006) (providing a history of dubitante

opinions).

26 KARCZEWSKI V. DCH MISSION VALLEY

For its part as amicus, DOJ argues that its regulation on

vehicle hand controls was the “most applicable regulation”

whose “plain language” means that “the absence of hand

controls in a vehicle is a physical barrier that a public

accommodation must remedy under Title III.” Brief for the

United States as Amicus Curiae 10–13, ECF No. 22.

The ADA starts with a broad, general rule: “No individual

shall be discriminated against on the basis of disability in the

full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of

public accommodation.” 42 U.S.C. § 12182(a). The ADA

then offers five examples of specific prohibitions, two of

which are relevant here:

discrimination includes—

....

(ii) a failure to make reasonable modifications

in policies, practices, or procedures . . . unless

the entity can demonstrate that making such

modifications would fundamentally alter the

nature of such goods, services, facilities,

privileges, advantages, or accommodations;

....

(iv) a failure to remove architectural barriers

. . . where such removal is readily

achievable[.]

Id. § 12182(b)(2)(A). DOJ has addressed the architectural

barriers provision, § 12182(b)(2)(A)(iv), in some detail. Here

KARCZEWSKI V. DCH MISSION VALLEY 27

is the relevant portion of the regulation enforcing that

provision:

Examples of steps to remove barriers include,

but are not limited to, the following actions—

(1) Installing ramps;

(2) Making curb cuts in sidewalks and

entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending

machines, display racks, and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator

control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen

doorways;

(10) Eliminating a turnstile or providing an

alternative accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

28 KARCZEWSKI V. DCH MISSION VALLEY

(13) Rearranging toilet partitions to increase

maneuvering space;

(14) Insulating lavatory pipes under sinks to

prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser

in a bathroom;

(18) Creating designated accessible parking

spaces;

(19) Installing an accessible paper cup

dispenser at an existing inaccessible water

fountain;

(20) Removing high pile, low density

carpeting; or

(21) Installing vehicle hand controls.

28 C.F.R. § 36.304(b). Twenty of the twenty-one items on

this list refer to accommodations that must be made in fixed

structures; one relates to vehicles. Even a child can tell that

one of these things is not like the others. See generally

SESAME STREET, One of These Things (Is Not Like the

Others), on SESAME STREET BOOK & RECORD (Columbia

Records 1970).

KARCZEWSKI V. DCH MISSION VALLEY 29

Sensibly, the majority does not buy DOJ’s reading of the

ADA. Neither do I. “Installing vehicle hand controls” cannot

be a reasoned application of the ADA’s command to “remove

architectural barriers . . . in existing facilities” for the simple

reason that “architectural barriers” ought to have something

to do with architecture.2 Indeed, the majority concludes that

§ 12182(b)(2)(A)(iv) does not apply here and, thus, the

regulation is “inapplicable.” Maj. Op. at 16, 17. The

majority then suggests, in dicta, that if it were to reach the

question, then it would hold that “the agency’s construction

is not ‘based on a permissible construction of the statute.’”

Id. at 16 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984)).

I would simply hold that § 36.304 is not a permissible

construction of the architectural barrier provision of the

ADA, § 12182(b)(2)(A)(iv). The regulation is not

“inapplicable” to the plaintiff’s claim, as the majority says; it

was the heart and soul of the plaintiff’s claim and the basis

for DOJ’s amicus brief. And if the regulation is not

applicable here, where would it be applicable? We should

have just said the obvious: that portion of § 36.304 requiring

“vehicle hand controls” is not a reasonable construction of the

statute it purports to implement and is a dead letter.

2

The regulations define “facility” as “all or any portion of buildings,

structures, sites, complexes, equipment, rolling stock or other

conveyances, roads, walks, passageways, parking lots, or other real or

personal property, including the site where the building, property,

structure, or equipment is located.” 28 C.F.R. § 36.104.

30 KARCZEWSKI V. DCH MISSION VALLEY

II

Anticipating that we would not sustain its regulation on

vehicle hand controls, DOJ offered us a half-hearted

alternative—salvaged from the plaintiff’s complaint but

otherwise ignored by the plaintiff on appeal—which the

majority accepts: we can characterize the car dealer’s refusal

to install hand controls as “a failure to make reasonable

modifications in policies, practices, or procedures, when such

modifications are necessary to afford such goods, services,

facilities, privileges, advantages, or accommodations

to individuals with disabilities.” 42 U.S.C.

§ 12182(b)(2)(A)(ii); see Maj. Op. at 9–15. The plaintiff

alleged that the car dealer “employed the discriminatory

policy or practice of providing a test-driving privilege or

service only to those persons capable of using foot controls.”

Maj. Op. at 10–11. According to the majority, that suffices

to “state[] a claim that [the defendant] discriminated against

[the plaintiff] by failing to make a . . . modification to a

policy, practice, or procedure.” Id. at 12.

On an initial reading of the statute, the majority’s

conclusion is plausible. It doesn’t stretch the ADA beyond

recognition to say that the dealer here had a policy,

procedure, or practice that permits able-bodied persons, but

not the plaintiff, to test-drive its cars. That “policy” is a

natural consequence of the dealer only stocking standard-

make cars that depend on foot controls. A buyer who wants

a car, but needs hand controls to operate it, will have to install

the controls at his own expense. The dealer allows customers

to drive the cars the dealer is selling, and they don’t come

with hand controls.

KARCZEWSKI V. DCH MISSION VALLEY 31

On further reflection, however, I have two objections to

the majority’s analysis. First, under the majority’s aggressive

reading of the ADA—which, so far as I can tell, no other

court has adopted—everything can be construed as a policy,

practice, or procedure. The majority characterizes the

plaintiff’s argument as “Defendant employed the

discriminatory policy or practice of providing a test-driving

privilege or service only to those persons capable of using

foot controls[.]” Maj. Op. at 10–11. The form of this

argument—“Defendant employed the discriminatory policy

or practice of providing X only to those persons capable of

doing Y”—has endless possibilities. Consider the following

examples, all consistent with this form.

1. The grocery store employed the

discriminatory policy or practice of providing

shopping only to those persons capable of

doing so without a personal shopper.

2. The commercial airline employed the

discriminatory policy or practice of providing

transportation only to those persons who are

capable of sitting upright in a seat.

3. The building owner employed the

discriminatory policy or practice of providing

access to restrooms only to those persons

capable of using facilities without the aid of a

grab bar.

At least one of these examples—the restroom in a

building—is certainly covered by the ADA and its

regulations, and quite specifically. 28 C.F.R. § 36.304(b)(12)

(requiring grab bars in restroom stalls). In the past, a plaintiff

32 KARCZEWSKI V. DCH MISSION VALLEY

would have brought a claim about an inaccessible restroom

under the “architectural barriers . . . in existing facilities”

provision of the ADA, § 12182(b)(2)(A)(iv). After today’s

case, a sensible plaintiff will also argue that he has a claim

under § 12182(b)(2)(A)(ii) as well. I don’t think that either

of the other examples are covered by the architectural barriers

provision of ADA, and, until today, it is questionable whether

either example would survive a motion to dismiss. But after

today’s broad decision, plaintiffs can bring these claims and

argue that they are covered by the policy-and-practices

provision.

The majority disagrees with my assessment. It responds

that the architectural provision still has bite because some

barriers can’t be forced under the “policies, practices, and

procedures” rubric. Writes the majority:

We disagree with the separate opinion

that, under our interpretation, all ordinary

“architectural barriers” claims may be recast

as “policy or practice” claims. A permanent

structural change to a building or surrounding

fixtures, such as “[m]aking curb cuts in

sidewalks and entrances,” 28 C.F.R.

§ 36.304(b)(2), plainly qualifies as an

“architectural barriers” claim. But it would

defy ordinary usage to assert that cutting a

permanent ramp into a sidewalk is a

“modification” to a “policy.”

Maj. Op. at 13 (alteration in original). The majority has

misunderstood the strength of its own argument. I agree that

a permanent ramp is not a “modification” to a policy (just as

installing vehicle hand controls on a car is not a modification

KARCZEWSKI V. DCH MISSION VALLEY 33

to a policy). But just as the majority holds that the dealer has

a policy of not allowing foot-impaired drivers to test-drive its

cars, it takes only a little lawyerly imagination to accuse the

building owner of having a policy or practice of not installing

permanent ramps in its sidewalks, thus denying its disabled

patrons the equal access to its facilities.

The majority’s aggressive reading of § 12182(b)(2)(A)(ii)

has a real consequence: it gives putative plaintiffs heretofore

unknown abilities to choose the standard of scrutiny their

claims must meet to succeed. Take the restroom example. A

plaintiff who claims that the owner of a building has

maintained an “architectural barrier” in violation of

§ 12182(b)(2)(A)(iv) and its regulations must at least make an

initial showing that “removal is readily achievable.”

42 U.S.C. § 12182(b)(2)(A)(iv); see Colo. Cross Disability

Coal. v. Hermanson Family Ltd., 264 F.3d 999, 1002 (10th

Cir. 2001); Johnson v. YIP Holdings Five, LLC, No. 2:14-cv-

1114-WBS-EFB, 2015 WL 5435659, at *2–3 (E.D. Cal. Sept.

15, 2015). But if the same plaintiff also alleges that the

building owner “employed the discriminatory policy or

practice of providing access to restrooms only to those

persons capable of doing so without the aid of a grab bar” and

could reasonably modify it, the defendant must show that

making the modification to its policy or practice “would

fundamentally alter the nature of such goods, services,

facilities, privileges, advantages, or accommodations.”

42 U.S.C. § 12182(b)(2)(A)(ii); see Colo. Cross, 264 F.3d at

1003; Wong v. Regents of Univ. of Cal., 192 F.3d 807,

816–17 (9th Cir. 1999); Johnson v. Gambrinus Co./Spoetzel

Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997). Indeed, a

savvy plaintiff who has an architectural barrier argument will

always bring a policies, practices, and procedures claim as

well. Once the plaintiff makes out a prima facie case, the

34 KARCZEWSKI V. DCH MISSION VALLEY

defendant must demonstrate that the removal of its

architectural barrier is “not readily achievable,” 42 U.S.C.

§ 12182(b)(2)(A)(iv), and that modifying its policy “would

fundamentally alter the nature of such goods, services,

facilities, privileges, advantages, or accommodations,” id.

§ 12182(b)(2)(A)(ii).

The majority responds to my concern by telling us that

there is no difference between the two standards, that they

are, “for practical purposes, identical.” Maj. Op. at 14. This

is not reassuring. Ordinarily, when Congress adopts two

different standards within the same legislation, we assume

that the standards mean different things. “A presumption that

a single word means the same thing throughout a statute goes

together with a presumption that different words mean

different things.” Med. Coll. of Wis. Affiliated Hosps., Inc. v.

United States, 854 F.3d 930, 933 (7th Cir. 2017); see also

Mohamad v. Palestinian Auth., 566 U.S. 449, 455–56 (2012);

Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).

Congress may occasionally engage in “elegant

variation”—adopting different language to mean the same

thing, perhaps to stave off its own boredom—but we have a

presumption against elegant variation. See EEOC v.

Gilbarco, Inc., 615 F.2d 985, 999 & n.23 (4th Cir. 1980)

(“Congress determined in closely related circumstances to use

two different terms. It is, therefore, more likely than not that

the use of different language indicated a legislative intention

to mean different things.”); see also Burlington Indus. Inc. v.

Dayco Corp., 849 F.2d 1418, 1421–22 (Fed. Cir. 1988)

(discussing the risks of elegant variation in legal documents).

Second, I harbor serious reservations about whether we

should construe “policies, practices, and procedures” so

broadly when DOJ’s regulations and manuals have taken a

KARCZEWSKI V. DCH MISSION VALLEY 35

more modest approach to those terms. DOJ’s regulations

interpreting § 12182(b)(2)(A)(ii) focus on examples that are

far more policy-like than the dealership’s “policy” here. See,

e.g., 28 C.F.R. § 36.302(c) (forbidding, among other things,

surcharges for service animals and other policies that ban

service animals); id. § 36.302(e) (requiring modifications to

hotel reservation systems); id. § 36.302(f) (requiring

modification to seating policies for ticketed events); see also

DEP’T OF JUSTICE, ADA TITLE III TECHNICAL ASSISTANCE

MANUAL, at III-4.2100–2400 (1993) [hereinafter TAM],

https://www.ada.gov/taman3.html. These areas are within the

core of what in ordinary conversation we consider to be

policies, practices, and procedures. So a doctor who routinely

refers certain kinds of medical problems to another specialist

is not discriminating against a disabled patient when he

“would make a similar referral for an individual without a

disability.” 28 C.F.R. § 36.302(b)(2). However, the doctor

may not refer individuals with disabilities to another

physician when he would treat similarly situated patients

without the same disability. Similarly, a grocery store with

check-out aisles that accommodate the disabled must “ensure

that an adequate number of accessible check-out aisles are

kept open during store hours.” Id. § 36.302(d); TAM III-

4.2400. The store doesn’t get to open wheelchair-accessible

aisles during the day but close them at night; such a policy

violates § 12182(b)(2)(A)(ii). These are policies or practices

as we typically conceive of those terms—a way of doing

things, a course of action. Once we find we can wrap up

anything as a policy, practice, or procedure, DOJ’s

regulations become nearly meaningless.3

3

The TAM makes clear that DOJ believed that the architectural

barriers provision and the policies, practices, and procedures provision

36 KARCZEWSKI V. DCH MISSION VALLEY

The point is reinforced when we consider DOJ’s

regulation regarding “vehicle hand controls” that the plaintiff

and DOJ urged on us. DOJ thought that vehicle hand controls

were required by the ADA, but it located that restriction in

§ 12182(b)(2)(A)(iv), not in § 12182(b)(2)(A)(ii). The

majority resuscitates the essence of the regulation, but locates

it in a different provision of the ADA. If the majority had

done so formally, it would be a flat violation of the Chenery

principle that we don’t supply a rationale where the agency’s

explanation has failed. See SEC v. Chenery Corp., 318 U.S.

80, 88 (1943). The majority has accomplished indirectly

what it couldn’t have done directly. We should hesitate long

before going down this road when DOJ adopted an on-point

regulation, but did so under a different provision of the ADA.

covered different problems. One of its illustrations for a policy, practice

or procedure states:

Under its obligation to remove architectural barriers

where it is readily achievable to do so, a local motel has

greatly improved physical access in several of its

rooms. However, under its present reservation system,

the motel is unable to guarantee that, when a person

requests an accessible room, one of the new rooms will

actually be available when he or she arrives. The ADA

requires the motel to make reasonable modifications in

its reservation system to ensure the availability of the

accessible room.

TAM III-4.2100 (Illustration 2). Under the majority’s reasoning, both

accessibility problems—the motel’s architectural barriers and its

reservation system—could be addressed through § 12182(b)(2)(A)(ii), and

not through § 12182(b)(2)(A)(ii) and (iv) as DOJ contemplated.

KARCZEWSKI V. DCH MISSION VALLEY 37

III

These are challenging interpretive questions for the ADA.

I question whether the majority has got this one right. On the

other hand, I don’t have a full answer for the majority’s

analysis. I remain halted between two opinions, dubitante.