# American Public Transit Association v. Andrew L. Lewis, Jr., Secretary, United States Department of Transportation > Court of Appeals for the D.C. Circuit · May 26, 1981 · 655 F.2d 1272 URL: https://www.frixlaw.com/law-library/cases/9468232 ## Case - **Full name:** AMERICAN PUBLIC TRANSIT ASSOCIATION, Et Al., Appellants, v. Andrew L. LEWIS, Jr., Secretary, United States Department of Transportation, Et Al. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** May 26, 1981 - **Citations:** 655 F.2d 1272; 211 U.S. App. D.C. 42; 1981 U.S. App. LEXIS 12960 - **Precedential status:** Published - **Opinion:** Concurrence by Edwards - **Judges:** MacKinnon, Mikva, Edwards - **Cited by:** 45 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468232 ## How later opinions describe it (automated extraction) - holding that the Rehabilitation Act cannot justify federal regulations that “impose extremely heavy financial burdens on local transit authorities” ## Opinion text HARRY T. EDWARDS, Circuit Judge, concurring: I concur in the result. A difficult question would be presented in this case if the Department had maintained that section 504 of the Rehabilitation Act, without consideration of any other statutory provision, provided sufficient authority for the issuance of the challenged regulations. This was the position of the Department in the trial before the District Court, and also in its brief to this court on appeal. However, it was my impression from oral argument that DOT no longer advances this position, and instead argues, as the District Court held below, that the regulations are authorized by various provisions of the Urban Mass Transportation Act, possibly in conjunction with section 504. Since in issuing the regulations the Department did not contend to be acting under the authority of UMTA, as it does now, I believe that under SEC v. Chenery Corp., 332 U.S. 194 , 67 S.Ct. 1575 , 91 L.Ed. 1995 (1947), a remand to the Department is necessary. *1281 At the start of oral argument, Government counsel did not seek to justify the regulations under section 504 alone; rather, she asserted that the regulations were “promulgated pursuant to two transportation statutes and section 504 of the Rehabilitation Act.” Government counsel then argued that the DOT regulations represented “a permissible [policy] choice under the language of the statutes and their legislative history.” What is noteworthy is that, although the regulations were in fact promulgated solely on the authority of section 504, at oral argument Government counsel seemed to urge that the regulations were justified on the authority of the three statutes together, not section 504 alone. It is of course possible to construe Government counsel’s argument to mean that each of the three statutes provided an independent basis justifying the regulations. However, since the Government appears to embrace the opinion of the District Court, I find this suggestion untenable. Furthermore, almost the entire argument of Government counsel was devoted to a justification of the regulations under UMTA. At the very close of her argument, Government counsel stated that: [Section] 504 alone could support these regulations, but this court need not reach that issue; it could find as the District Court did that ... the Urban Mass Transportation Act and the Federal Aid to Highway Act independently authorized the regulations. This was the only occasion during oral argument when Government counsel even suggested that section 504 provided an independent basis justifying the regulations. Following this statement, Government counsel again argued that all three statutes were relied upon to support the regulations. At best, the Government’s position is ambiguous. For this reason alone it seems to me that it makes good sense to remand this case for a clearer explication of the Government’s position. Since I agree with the majority that the regulations were promulgated solely under section 504, and since the Government now seeks to argue otherwise, I agree that the case should be remanded. As a result, I express no opinion here on the extremely complicated question of whether the regulations exceed the permissible scope of section 504 of the Rehabilitation Act by imposing on transit authorities a requirement of “affirmative action,” as opposed to one of “non-discrimination.” In my opinion, the application of section 504 to public transportation systems raises some questions that are significantly different from those considered by the Supreme Court in the higher education setting in Southeastern Community College v. Davis, 442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979). In considering the accessibility of public transportation to otherwise qualified handicapped persons, it is much more difficult to avoid “discrimination” without taking some kind of “affirmative action.” Resolution of the type of permissible affirmative action that may be ordered by the Government as a condition to the grant of federal funds should be made, in my opinion, on a proper administrative record, which sets forth unequivocally the statutory authority and the factual basis for the action taken. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468232. Public record. Not legal advice.