Appendix — Zimmerman v. Oregon Department of Justice

SCOT L. ZIMMERMAN, Plaintiff,

v.

STATE OF OREGON DEPARTMENT OF

JUSTICE, Defendant.

CV 97-959-PA

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

October 31, 1997, Decided

Plaintiff Scot L. Zimmerman brings this employment dis-

crimination action against defendant Oregon Department of

Justice. Plaintiff alleges that defendant failed to accommodate

his poor eyesight while training him to work as a child sup-

port agent. Plaintiff brings claims under the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 to

12213, and state law.

Defendant moves to dismiss for failure to state a claim

and lack of subject matter jurisdiction. I grant the motion.

BACKGROUND

Plaintiff alleges that he began working for defendant on

June 21, 1995, as a trial employee. Defendant discharged him

on December 18, 1995, when he refused defendant’s request

that he remain on trial service.

After the state Employment Department denied unem-

ployment benefits, plaintiff requested administrative review.

The Employment Department initially denied plaintiff's

claim, which included allegations of discrimination, on April

App. 2

19, 1996.' After a hearing, the Employment Department

again denied plaintiff's claim on June 19, 1996.

On December 18, 1996, plaintiff filed a complaint with

the Oregon Bureau of Labor and Industries (BOLI). Johnston

Affid., Attach. B.? Plaintiff later withdrew the BOLI com-

plaint and filed this action on June 23, 1997.

STANDARDS

The court should not grani a motion to dismiss for failure

to state a claim under Federal Rule of Civil Procedure

12(b)(6) unless it appears beyond doubt that the plaintiff can

prove no facts in support of the claim. Conley v. Gibson, 355

U.S. 41, 45-46 (1957). The court should construe the com-

plaint in the light most favorable to the plaintiff. Rosen v.

Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).

A motion to dismiss for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1) may attack

the substance of the complaint’s jurisdictional allegations

even though the allegations are formally sufficient. St. Clair

v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

DISCUSSION

I. Failure to File Timely Complaint With BOLI

Defendant moves to dismiss plaintiffs first two claims,

which are under Title I of the ADA, 42 U.S.C. §§ 12111 to

12117, because plaintiff filed his complaint with BOLI more

than 300 days after his alleged discharge. To bring an action

in federal court for employment discrimination under Title I

I will accept these dates as true. Plaintiff asserts them in his response

brief but not in the complaint.

Plaintiff did not allege the date of the BOLI filing in his complaint.

However, plaintiff does not dispute that the date was December 18, 1996.

See Plitf..s Memo. in Support at 2 (“Plaintiff also filed a Complaint with

the Civil Rights Division of the State of Oregon on December 18, 1996.”).

App. 3

of the ADA, a person first must file a charge of discrimination

with the federal Equal Employment Opportunity Commission

(EEOC) or with a state or local agency able to grant relief

from the unlawful employment practice. See 42 U.S.C.

§ 12117(a) (adopting Title VII’s filing requirements, which

are set forth in 42 U.S.C. § 2000e-5(e)(1)). There is a 180-

day deadiine for filing discrimination charges with the EEOC

and a 300-day deadline for filing charges with the state or lo-

cal agency. 42 U.S.C. § 2000e-5(e)(1). The filing deadline

acts as a statute of limitations and failure to file a timely

charge bars a subsequent action in federal court. Delaware

State College v. Ricks, 449 U.S. 250, 256-57 (1980).

Here, plaintiff was discharged on December 18, 1995, and

did not file a charge of discrimination with BOLI until De-

cember 18, 1996, well past the 300-day deadline. Plaintiff

contends that he beat the deadline by filing his claim for un-

employment benefits, which included allegations of discrimi-

nation, within 300 days.

I find no support for plaintiff's contention that filing a

claim for unemployment benefits with the state Employment

Department can be considered the equivalent of filing a claim

with BOLI, even if the claim includes charges of discrimina-

tion. Cf. Williams v. Board of Educ., 972 F. Supp. 248, 250

(S.D.N.Y. 1997) (filing complaint with U.S. Dep’t of Educa-

tion Office of Civil Rights not equivalent to filing with the

EEOC or a state or local agency). Plaintiff does not dispute

that BOLI, not the Employment Department, has a memoran-

dum of understanding with the EEOC to accept discrimina-

tion claims. The Employment Department’s jurisdiction is

over unemployment insurance and compensation, not dis-

crimination against disabled employees. Compare

ORS 657.601 (legislature established Employment Depart-

ment to “administer the unemployment laws,” “provide for

the operation of a state-wide employment service.” manage

an information system on the state labor market, and “provide

child care advocacy .. .”) with ORS 659.435 (legislature

App. 4

grants Commissioner of BOLI enforcement powers to correct

discrimination against disabled persons).

Plaintiff also has not shown grounds for equitable tolling.

See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96

(1990) (courts have allowed equitable tolling when the claim-

ant filed defective pleading during statutory period or was

induced by the defendant’s misconduct into missing the filing

deadline, but not when the claimant fails to exercise due dili-

gence); Baldwin County Welcome Center v. Brown, 466 U.S.

147, 151-52 (1984) (claimant who fails to act diligently can-

not invoke equitable principles to excuse lack of diligence).

Plaintiff's first two claims must be dismissed for failure to file

a timely complaint with BOLI.

II. Employment Discrimination Claim under Title II of the

ADA

Plaintiff's third claim is under Title II of the ADA, 42

U.S.C. §§ 12131 to 12134. Defendant moves to dismiss, con-

tending that Title II does not create a cause of action for em-

ployment discrimination.

The Ninth Circuit has not addressed this issue. The Justice

Department interprets Title II as prohibiting employment dis-

crimination,’ while courts addressing the issue are split, with

a majority agreeing with the Justice Department. See Bledsoe

v. Palm Beach Soil and Water Conservation Dist., 942

F. Supp. 1439, 1443 (S.D. Fla. 1996) (collecting cases and

concluding that although a majority hold that Title II creates a

cause of action for employment discrimination, majority view

is inconsistent with the ADA); Dominguez v. City of Council

Bluffs, 974 F. Supp. 732, 1997 WL 484647, at *4 (S.D. lowa

1997) (noting split of authority and following majority view).

> 28 C.F.R. § 35.140(a) (“No qualified individual with a disability shall,

on the basis of disability, be subjected to discrimination in employment

under any service, program, or activity conducted by a public entity.”’).

App. 5

I reject plaintiff's interpretation of Title II because it is in-

consistent with the structure of the ADA as a whole. In Title

I, Congress created a comprehensive scheme prohibiting em-

ployment discrimination. In Title II, headed “Public Serv-

ices,” Congress prohibited governments from discriminating

against disabled persons in providing services such as public

transportation or parks. See 42 U.S.C. § 12132 (“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 such entity.”); Bledsoe, 942 F.

Supp. at 1443-44. Allowing employment discrimination

claims under Title II would make Title I almost completely

redundant as applied to public employees.’ After establishing

a comprehensive statutory scheme in Title | to prohibit dis-

crimination by both public and private employers, why would

Congress then create a vague implied remedy for employment

discrimination, available only to public employees? But see

Winfrey v. City of Chicago, 957 F. Supp. 1014, 1023 (N.D.

Ill. 1997) (speculating that Congress may have considered

notice of employees’ claims unnecessary for public employ-

ers and concluding that majority view not “so absurd as to

require a different construction of the statute”). Public em-

ployees would have no reason to bring discrimination claims

under Title I if Title I] allowed them to take claims directly to

federal court without exhausting administrative remedies.

Bledsoe, 942 F. Supp. at 1445.

The wording of Title II also does not support plaintiff s

argument. As courts on both sides of the dispute have noted,

Title II does not address employment. Bledsoe, 942 F. Supp.

at 1444; Petersen v. University of Wisconsin Bd of Regents,

818 F. Supp. 1276, 1278 (W.D. Wis. 1993) (coverage of em-

* Title | applies to employers with fifteen or more employees, while Title

II applies to all governmental entities, regardless of size or number of em-

ployees.

App. 6

ployment discrimination “is not obvious from the plain lan-

guage’; finding coverage based on Justice Department rule).

One could broadly construe the phrase “services, programs, or

activities of a public entity” to include employment. How-

ever, that reading ignores Title I’s specific coverage of em-

ployment discrimination. See Decker v. University of Hous-

ton, 970 F. Supp. 575, 578 (S.D. Tex. 1997).

Plaintiff argues that I should accept the Justice Depart-

ment’s interpretation of Title II. However, courts are the final

authorities on statutory construction, and a court must reject

an agency construction that is inconsistent with the statutory

mandate. Vance v. Hegstrom, 793 F.2d 1018, 1023 (9th Cir.

1986). The Justice Department’s regulations are inconsistent

with Title Il and the entire ADA. See Bledsoe, 942 F. Supp.

at 1448-49.

I conclude that Title I] does not cover employment dis-

crimination. Accepting plaintiff's position would create a

“completely bewildering” statutory scheme:

Both Title I and Title{] II apply to employment, al-

though Title II says nothing at all on the subject and Ti-

tle | lays out a comprehensive scheme to deal with em-

ployment issues; Title I says an employer must hire 15

employees to be sued for employment discrimination,

but you can get around this under Title II if your em-

ployer is an arm of the State; Title 1 says you must ex-

haust administrative remedies, but you can ignore this

requirement too if you are employed by the State. If this

is really what Congress meant, then the ADA surely

must rank as one of the great drafting debacles of recent

umes.

Bledsoe, 942 F. Supp. at 1445-46. Plaintiff's third claim must

be dismissed for failure to state a claim.

III. Eleventh Amendment Immunity

Defendant moves to dismiss plaintiff's fourth claim,

which is under ORS 659.425, contending that the Eleventh

CPi ae ar sito

App. 7

Amendment bars the claim from being heard in federal court.

I agree.

The Eleventh Amendment protects a state from suit by its

own citizens in federal court. Clark v. State of California,

123 F.3d 1267, 1269, 1997 WL 525518, at *1 (9th Cir. 1997).

A state may lose its Eleventh Amendment immunity in two

ways: Congress can abrogate it by statute, or the state itself

may choose to waive it. /d.

Plaintiff argues, correctly, that Congress abrogated Ore-

gon’s Eleventh Amendment immunity for claims brought un-

der the ADA. See id. at *1-2. However, that abrogation ap-

plies only to claims under the ADA. The potential for sup-

plemental federal jurisdiction over state law claims cannot

abrogate a state’s Eleventh Amendment immunity.

The other exception to Eleventh Amendment immunity,

waiver by the state, also does not apply here. The court may

find a waiver only when expressly stated or “by such over-

whelming implication” as to leave no other reasonable inter-

pretation possible. See Micomonaco v. State of Washington,

45 F.3d 316, 319 (9th Cir. 1995). “For a state statute to con-

stitute waiver of Eleventh Amendment immunity, the statute

at issue must specify the state’s intention to be sued in federal

court, because the state has a constitutional interest in where

it may be sued.” /d. The statute at issue here contains no

waiver, express or implied, of Eleventh Amendment immu-

nity. I dismiss plaintiff's state law claim for lack of subject

matter jurisdiction.

CONCLUSION

Defendant’s motion to dismiss ( # 8) is granted.

DATED this 31st day of October, 1997.

OWEN M. PANNER

U.S. DISTRICT COURT JUDGE

App. 8

SCOT L. ZIMMERMAN, Plaintiff-Appellant,

Vv.

STATE OF OREGON

DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 97-36101

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

March 18, 1999, Filed

Plaintiff brought this action claiming, in part, that defen-

dant’s employment practices discriminated against him in

violation of Title II of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12131, et seg. The district court dis-

missed the action, holding that Title II of the ADA does not

apply to employment. Addressing this issue of first impres-

sion for the Ninth Circuit, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because this is an appeal from the dismissal of an action

pursuant to Fed. R. Civ. P. 12(b)(6), we accept as true the

facts alleged in the complaint. Associated Gen. Contractors

of Am. v. Metropolitan Water Dist., 159 F.3d 1178, 1181 (9th

Cir. 1998).

On January 21, 1995, defendant hired plaintiff on a trial

basis as a child support agent. Plaintiff suffers from a dis-

abling eye condition that renders him visually impaired.

During his employment, plaintiff asked that defendant rea-

sonably accommodate his disability. Defendant refused and

thereafter retaliated against plaintiff. Finally, on December

18, 1995, defendant fired plaintiff.

sic aah

App. 9

On June 23, 1997, plaintiff filed this action alleging that

defendant had violated Titles I and II of the ADA and a simi-

lar state anti-discrimination statute. Zimmerman v. Oregon

Dep't of Justice, 983 F. Supp. 1327, 1328 (D. Ore. 1997). De-

fendant moved to dismiss the action pursuant to Fed. R. Civ.

P. 12(b)(6). Jd.

The district court first dismissed plaintiff's Title I claims.

holding that plaintiff had failed to file a timely charge with

the Equal Employment Opportunity Commission (EEOC).

Id. at 1328-29. The court also dismissed plaintiff's state law

claim, holding that defendant has Eleventh Amendment im-

munity. /d. at 1330-31. On appeal, plaintiff does not chal-

lenge either of those rulings.

Finally, the court dismissed plaintiff's Title II claim.

holding that Title II does not apply to employment. /d. at

1329-30. The court acknowledged that it is possible to inter-

pret the words of Title II broadly to cover employment. /d. at

1330. However, the court relied on contextual clues to reject

that interpretation:

I reject plaintiff's interpretation of Title II because it

is inconsistent with the structure of the ADA as a whole.

In Title 1, Congress created a comprehensive Statutory

scheme prohibiting employment discrimination. In Title

Il, headed “Public Services,” Congress prohibited gov-

ernments from discriminating against disabled persons

in providing services such as transportation or parks.

Allowing employment discrimination claims under Title

I] would make Title I almost completely redundant as

applied to public employees. After establishing a com-

prehensive statutory scheme in Title I to prohibit dis-

crimination by both public and private employers, why

would Congress then create a vague implied remedy for

employment discrimination, available only to public

employees? Public employees would have no reason to

bring discrimination claims under Title | if Title I al-

App. 10

lowed them to take claims directly to federal court with-

out exhausting administrative remedies.

Id. at 1329-30 (footnote and citations omitted). Plaintiff

brings this timely appeal to challenge that decision.

STANDARD OF REVIEW

We review de novo the district court’s dismissal of an ac-

tion pursuant to Fed. R. Civ. P. 12(b)(6). Steckman v. Hart

Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998).

DISCUSSION

A. Statutory Overview

The ADA contains five titles: Employment (Title 1), Pub-

lic Services (Title II), Public Accommodations and Services

Operated by Private Entities (Title III), Telecommunications

(Title IV), and Miscellaneous Provisions (Title V).° Ameri-

cans with Disabilities Act of 1990, Pub. L. No. 101-336, 104

Stat. 327, 327-28 (1990). As those headings suggest, Title I

applies specifically to employment:

No covered entity shall discriminate against a qualli-

fied individual with a disability because of the disability

of such individual in regard to job application proce-

dures, the hiring, advancement, or discharge of employ-

ees, employee compensation, job training, and other

terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a).

Congress has defined “covered entity” to include state

employers such as defendant. The term “covered entity” in-

cludes an “employer.” 42 U.S.C. § 12111 (2). In turn, “em-

ployer” includes a “person engaged in an industry affecting

commerce who has 15 or more employees.” 42 U.S.C. §

12111(S5)(A). Completing the picture of who is covered, the

* As codified, the telecommunications title is not a separate subchapter.

App. 11

statute defines “person” and “industry affecting commerce” to

include a governmental “industry, business or activity.” See

42 U.S.C. § 12111(7) (“The terms ‘person’ . . . and ‘industry

affecting commerce’, shall have the same meaning given such

terms in section 2000e of this title.”); 42 U.S.C. § 2000e(a)

(“The term ‘person’ includes one or more individuals, gov-

ernments, governmental agencies, political subdivisions . . .

.”; 42 U.S.C. § 2000e(h) (“The term ‘industry affecting com-

merce’ means any activity, business, or industry in commerce

or in which a labor dispute would hinder or obstruct com-

merce or the free flow of commerce and includes . . . any

governmental! industry, business, or activity.”).

Although Congress generally included governmental em-

ployers in Title I, it exempted the federal government from

that Title. See 42 U.S.C. § 12111(5)B) (“The term ‘em-

ployer’ does not include . . . the United States, a corporation

wholly owned by the government of the United States, or an

Indian tribe... .”). That being so, by including governmental

employers in Title I, but at the same time excluding federal

governmental employers, Congress was referring only to state

and local governmental employers such as defendant.

Neither party disputes that Title | ordinarily would apply

to piaintiff's action. However, Title I requires an employee

first to file a charge with the EEOC in a timely manner. See

42 U.S.C. § 12117(a) (incorporating the charge requirement

from Title VII of the Civil Rights Act of 1964, as amended).

Plaintiff failed to satisfy that requirement and, thus, is left to

argue that Title II also applies to state employment; Title II

does not require him to file a charge with the EEOC.

B. Chevron deference

Title II is the “Public Services” title of the ADA. Con-

gress required the Attorney General to promulgate regulations

implementing Title II. See 42 U.S.C. § 12134(a). Pursuant to

that grant of authority, the Attorney General has determined

that Title II applies to employment:

App. 12

No qualified individual with a disability shall, on the

basis of disability, be subjected to discrimination in em-

ployment under any service, program, or activity con-

ducted by a public entity.

28 C.F.R. § 35.140(a) (1998).

Under these circumstances, Chevron U.S.A. Inc. v. Natu-

ral Resources Defense Council, Inc., 467 U.S. 837 (1984),

governs our review of 28 C.F.R. § 35.140(a) and Title II. See,

e.g., Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir.

1996) (applying Chevron deference to other Title II regula-

tions). Although the parties agree that Chevron applies, not

surprisingly, they disagree about the outcome of a Chevron

analysis.

In Chevron, the Supreme Court devised a two-step proc-

ess for reviewing an administrative agency's interpretation of

a statute that it administers. See Chevron, 467 U.S. at 842-44.

See also Bicycle Trails Council of Marin v. Babbitt, 82 F.3d

1445, 1452 (9th Cir. 1996) (“The Supreme Court has estab-

lished a two-step process for reviewing an agency's construc-

tion of a statute it administers.”). Under the first step, we

employ our “traditional tools of statutory construction” to

determine whether Congress has expressed its intent unambi-

guously on the question before the court. Chevron, 467 U.S.

at 843 n.9. “If the intent of Congress is clear, that is the end

of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.”

Id. at 842-43. If, instead, Congress has left a gap for the ad-

ministrative agency to fill, we proceed to step two. See id. at

843. At step two, we must uphold the administrative regula-

tion unless it is “arbitrary, capricious, or manifestly contrary

to the statute.” /d. at 844.

Plaintiff and the Attorney General, as amicus, argue that

Title Il is ambiguous and thus requires us to defer to the At-

torney General's regulation. Defendant, to the contrary, ar-

gues that Title I] expresses Congress’ intent unambiguously.

App. 13

We agree with defendant. Congress unambiguously ex-

pressed its intent for Title II not to apply to employment.

That being so, we end our inquiry at the first step of the Chev-

ron analysis and accord the Attorney General’s regulation no

weight. See National Credit Union Admin. v. First Nat'l

Bank & Trust Co., 522 U.S. 479 (1998) (“Because we con-

clude that Congress has made it clear that the same common

bond of occupation must unite each member of an occupa-

tionally defined federal credit union, we hold that the

NCUA’s contrary interpretation is impermissible under the

first step of Chevron.”) (emphasis in original); Sierra Club v.

United States Envtl. Protection Agency, 118 F.3d 1324, 1327

(9th Cir. 1997) (“Congress has spoken clearly on the subject

and the regulation violates the provisions of the statute. Our

inquiry ends at the first prong of Chevron.”). See also Patter-

son v. State of Ill., Dep't of Corrections, 1999 U.S. Dist.

LEXIS 1430, No. 98-4005, 1999 WL 68373, at *8 (C.D. II.

Jan. 26, 1999) (refusing to defer to 28 C.F.R. § 35.140(a), be-

cause “Congress clearly intended for employment disputes,

whether arising from public or private employment, to be

brought only under Title I of the ADA”); Decker v. Univer-

sity of Houston, 970 F. Supp. 575, 578 (S.D. Tex. 1997) (re-

fusing to defer to 28 C.F.R. § 35.140(a)), aff'd, 159 F.3d 1355

(Sth Cir. 1998) (Table).

C. Wording of Title II

Using our “traditional tools of statutory construction,”

Chevron, 467 U.S. at 843 n.9, “when interpreting a statute,

[we] look[ } first to the words that Congress used.” Sanchez

v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998).

“Rather than focusing just on the word or phrase at issue,

[we] look[ } to the entire statute to determine Congressional

intent.” Jd.

Title IIs operative section provides:

Subject to the provisions of this subchapter, no quali-

fied individual with a disability shall, by reason of such

App. 14

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. The term “public entity” means “any

State or local government” or “any department, agency, spe-

cial purpose district, or other instrumentality of a State or

States or local government.” 42 U.S.C. § 12131(1)(A) & (B).

As is evident, that section contains two clauses. First, 42

U.S.C. § 12132 says that no qualified individual with a dis-

ability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, pro-

grams, or activities of a public entity[.]

Congress did not define any of the terms in that clause ex-

cept “public entity” and “qualified individual with a disabil-

ity.” See 42 U.S.C. § 12131 (defining Title II's terms).

“When a statute does not define a term, we generally interpret

that term by employing the ordinary, contemporary, and

common meaning of the words that Congress used.” United

States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998).

A common understanding of the first clause shows that it

applies only to the “outputs” of a public agency, not to “in-

puts” such as employment. See Decker, 970 F. Supp. at 578

(“The phrase ‘services, programs, and activities,’ . . . under-

stood as a whole, focuses on a public entity's outputs rather

than inputs.”) (citation and internal quotation marks omitted).

First, employment by a public entity is not commonly thought

of as a “service, program, or activity of a public entity.” Sec-

ond, the “action” words in the sentence presuppose that the

public entity provides an output that is generally available,

and that an individual seeks to participate in or receive the

benefit of such an output.

Consider, for example, how a Parks Department would

answer the question, “What are the services, programs, and

activities of the Parks Department?” It might answer, “We

App. 15

operate a swimming pool; we lead nature walks; we maintain

playgrounds.” It would not answer, “We buy lawnmowers

and hire people to operate them.” The latter is a means to de-

liver the services, programs, and activities of the hypothetical”

Parks Department, but it is not itself a service, program, or

activity of the Parks Department.

Similarly, consider how a member of the public would an-

swer the question, “What are the services, programs, and ac-

tivities of the Parks Department in which you want to partici-

pate, or whose benefits you seek to receive?” The individual

might answer, “I want to participate in the Wednesday night

basketball league, or find out about the free children’s pro-

grams for the summer months.” The individual would not

logically answer, “I want to go to work for the Parks Depart-

ment.”

We conclude, then, that the wording of the first clause

does not suggest that Congress intended for Title II to apply

to employment.® Almost all other courts have, at least im-

plicitly, adopted the foregoing interpretation.’ In particular,

although they have held that Title II applies to employment,

they have not done so because of the wording of the first

clause. Instead, the courts that have considered that wording

have held that it does not apply to employment. See, e.g.,

Devker, 970 F. Supp. at 578 (so holding). See also Larra-

mendy v. San Mateo County Transit Dist., 1998 U.S. Dist

LEXIS 11711, No. 97-3436, 1998 WL 456283, at *3 n.1

(N.D. Cal. July 30, 1998) (holding that Title II does not apply

to the plaintiff's employment action, because the “plaintiff is

not claiming that he was trying to avail himself of a public

service, such as use of a public bus, administered by the Dis-

* If there were any doubt about the meaning of the first clause, it would be

resolved by resort to the statutorily defined term, “qualified individual

with a disability,” which we discuss in the text below.

” The only exception appears to be Dominguez v. City of Council Bluffs,

lowa, 974 F. Supp. 732, 736-37 (S.D. lowa 1997).

~

App. 16

trict; instead, he is claiming that the District, as employer,

violated his rights as an employee”); /skander v. Rodeo

Sanitary Dist., 1995 U.S. Dist. LEXIS 1620, No. C-94 0479-

SC, 1995 WL 56578, at *9 (N.D. Cal. Feb. 7, 1995) (“This

section concerns the rendering of services to the public by

public entities, i.e., public transportation. Title II is inapplica-

ble to the District’s composition of employees.”) (citation and

footnote omitted), aff'd on other grounds, 121 F.3d 715 (9th

Cir. 1997) (Table).

The second clause of 42 U.S.C. § 12132 states that no

qualified individual with a disability shall, by reason of such

disability, . . . be subjected to discrimination by any such en-

tity.

Some courts have held that the second clause is entirely

independent from the first and that it prohibits any form of

discrimination by a public entity. See Bledsoe v. Palm Beach

County Soil & Water Conserv. Dist., 133 F.3d 816, 822 (11th

Cir.) (“The language of Title II's antidiscrimination provision

does not limit the ADA’s coverage to conduct that occurs in

the ‘programs, services, or activities,’ of [a public entity].

Rather, it is a catch-all phrase that prohibits all discrimination

by a public entity, regardless of the context.”) (citation and

internal quotation marks omitted), cert. denied, 142 L. Ed. 2d

57, 119 S. Ct. 72 (1998); Innovative Health Sys., Inc. v. City

of White Plains, 117 F.3d 37, 44-45 (2d Cir. 1997) (same)

(not an employment action). See also Alberti v. City &

County of San Francisco Sheriff's Dep't, 32 F. Supp. 2d

1164, 1998 WL 954876, at *4 (N.D. Cal. 1998) (“The stat-

ute’s construction evinces congressional intent to keep the

term ‘or be subject to such discrimination’ broad. Although

Congress did not insert the word ‘employment’ it could be

read to include all forms of discrimination . . . .”); Downs v.

Massachusetts Bay Transp. Auth., 13 F. Supp. 2d 130, 135

(D. Mass. 1998) (“The [defendant] focuses exclusively on the

access to the ‘services, programs, or activities’ of public enti-

ties guaranteed by the first prong of this section, and disre-

a i i ia

App. 17

gards the general prohibition on discrimination provided by

the second prong.”).

Under that interpretation, Title II would be broad enough

to include employment discrimination by a public entity. We

do not, however, agree with that interpretation for two rea-

sons: (1) it takes the key phrase out of context, and (2) it con-

flicts with Ninth Circuit precedent.

Initially, the placement of the second clause in the single

sentence that forms 42 U.S.C. § 12132 suggests that the sec-

ond clause relates back to the same “services, programs, or

activities” of a public entity that the first clause covers.

Moreover, of course, Title II pertains to “Public Services.”

See Almendarez-Torres v. United States, 523 U.S. 224 ( 1998)

(“The title of a statute and the heading of a section are tools

available for the resolution of a doubt about the meaning of a

statute.”) (citation and internal quotation marks omitted).

Although placement of the second clause and the heading of

the section do not, by themselves, unambiguously indicate

Congress’ intent, the remainder of Title II does.

To prevail on a Title II claim, including a claim under the

second clause, a plaintiff must prove that he or she is a “quali-

fied individual with a disability.” See 42 U.S.C. § 12132 (so

providing); Weinreich v. Los Angeles County Metro. Transp.

Auth., 114 F.3d 976, 978 (9th Cir. 1997) (“To prove a public

program or service violates Title II of the ADA, a plaintiff

must show . . . [that] he is a ‘qualified individual with a dis-

ability.’”), cert. denied, 139 L. Ed. 2d 324, 118 S. Ct. 423

(1998). Title II defines that requirement:

As used in this subchapter:

The term “qualified individual with a disability”

means an individual with a disability who, with or with-

out reasonable modifications to rules, policies, or prac-

tices, the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids

and services, meets the essential eligibility requirements

App. 18

for the receipt of services or the participation in pro-

grams or activities provided by a public entity.

42 U.S.C. § 12131(2) (emphasis added). A plaintiff is not

“qualified” to bring any Title II claim unless he or she “meets

the essential eligibility requirements” of a government serv-

ice, program, or activity provided by a public entity. The

second clause of § 12132 therefore must relate to a govern-

ment service, program, or activity; otherwise a plaintiff is not

“qualified” to bring a claim under that clause. Using the ordi-

nary meaning of the phrase emphasized above, we return to

what we said about the first clause of § 12132. Obtaining or

retaining a job is not “the receipt of services,” nor is employ-

ment a “program[ ] or activity provided by a public entity.”

Again, the “action” words in the statute assume a relationship

between a public entity, on the one hand, and a member of the

public, on the other. The former provides an output that the

latter participates in or receives.

This court already has hinted at the foregoing interpreta-

tion of the second clause. In Crowder v. Kitagawa, 81 F.3d

1480 (9th Cir. 1996), this court held that Congress’ placement

of the word “or” between the two clauses in 42 U.S.C.

§ 12132 indicates its intent to prohibit two things: “Due to the

insertion of ‘or’ between exclusion from/denial of benefits on

the one hand and discrimination by a public entity on the

other, we conclude Congress intended to prohibit two differ-

ent phenomena.” /d. at 1483. In particular, Congress in-

tended for the second clause to prohibit intentional discrimi-

nation, whereas it intended for the first clause to prohibit dis-

parate treatment of the disabled. See id. (“Congress intended

to prohibit outright discrimination, as well as those forms of

discrimination which deny disabled persons public services

disproportionately due to their disability.”).

Crowder, thus, suggests that both clauses prohibit dis-

crimination by a public entity in providing its services, pro-

grams and activities. The clauses differ only in their method

of prohibiting discrimination. See, e.g., id. at 1483-84 (“Few

App. 19

would argue that architectural barriers to disabled persons

such as stairs, or communication barriers such as the prefer-

ence for the spoken word, are intentionally discriminatory.

Yet, stairs can deny the wheelchair-bound access to services

provided on the second floor of a government building; and

communicating only by the spoken word can deny deaf per-

sons the ability to find out that it is the second floor where

they must go to obtain the services they seek.”).

In summary, the second clause of 42 U.S.C. § 12132, like

the first, prohibits discrimination only in a public entity's

“outputs.” Thus, the wording of 42 U.S.C. § 12132 does not

permit an inference that Congress intended-for Title II to ap-

ply to employment.

D. Structure of the ADA

Even were the wording of Title II ambiguous, by itself,

the structure of the ADA as a whole unambiguously demon-

Strates that Congress did not intend for Title II to apply to

employment. See National R.R. Passenger Corp. v. Boston &

Maine Corp., 503 U.S. 407, 417 (1992) (“In ascertaining

whether the agency’s interpretation is a permissible construc-

tion of the language, a court must look to the structure and

language of the statute as a whole.”’).

The structure of the ADA demonstrates congressional in-

tent in five main ways: (1) Congress placed employmen!-

specific provisions in Title I, which it labeled “Employment,”

whereas Congress placed no employment-related provisions

in Title Il, which it labeled “Public Services.” (2) Congress

defined “qualified individual with a disability” differently in

Title I than in Title II. In Title I, a person is “qualified” if the

person can work, whereas in Title II a person is “qualified” if

the person is eligible to receive services or participate in a

publicly provided program. (3) Allowing employment dis-

crimination claims under Title II would make Title | redun-

dant as applied to public employees and would eviscerate the

procedural requirements of Title I for those employees. (4)

App. 20

Congress gave regulatory authority to different agencies for

Title I and Title II. Congress gave authority over Title I to the

EEOC, the agency that administers most federal employment-

related statutes. (5) Congress expressly linked the employ-

ment-related provisions of the Rehabilitation Act to Title I of

the ADA, not to Title II. We discuss each of those aspects of

the ADA’s structure in turn.

First, Title 1 contains detailed and comprehensive em-

ployment provisions. Title II, on the other hand, is com-

pletely devoid of any employment provisions. For example,

in Title I (“Employment”), the term “qualified individual with

a disability” speaks to a person's qualifications to work. By

contrast, as discussed above, in Title II (“Public Services”) a

“qualified individual with a disability” means a person who is

eligible to receive services or to participate in a publicly pro-

vided program or activity. Compare 42 U.S.C. § 12111(8)

(Title I):

As used in this subchapter:

The term “qualified individual with a disability”

means an individual with a disability who, with or with-

out reasonable accommodation, can perform the essen-

tial functions of the employment position that such indi-

vidual holds or desires. For the purposes of this sub-

chapter, consideration shall be given to the employer's

judgment as to what functions of a job are essential, and

if an employer has prepared a written description before

advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential

functions of the job.

with 42 U.S.C. § 12131(2) (Title II):

As used in this subchapter:

The term “qualified individual with a disability”

means an individual with a disability who, with or with-

out reasonable modifications to rules, policies, or prac-

tices, the removal of architectural, communication, or

App. 21

transportation barriers, or the provision of auxiliary aids

and services, meets the essential eligibility requirements

for the receipt of services or the participation in pro-

grams or activities provided by a public entity.

Likewise, in Title I, “reasonable accommodation” addresses

specifically the needs of the disabled in the workplace. Title

II does not contain a similar definition. Compare 42 U.S.C. §

12111(9) (Title I):

As used in this subchapter:

The term “reasonable accommodation” may include -

(A) making existing facilities used by employees

readily accessible to and usable by individuals with dis-

abilities; and

(B) job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition

or modification of equipment or devices. appropriate

adjustment or modifications of examinations, training

materials or policies, the provision of qualified readers

or interpreters, and other similar accommodations for

individuals with disabilities.

with 42 U.S.C. § 12131 (Title II) (using the undefined term

“reasonable modification”).

Congress thus crafted extensive employment-specific

provisions in Title I. It omitted any mention of employment

in Title II. In that circumstance, we must give effect to the

different wording and different focus of the two provisions.

See Russello v. United States, 464 U.S. 16, 23 (1983)

(“Where Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”) (citation

and internal quotation marks omitted). See also Patterson,

1999 WL 68373, at *7 (relying, in part, on the different defi-

nitions of “qualified individual with a disability” to hold that

App. 22

“Congress never intended for Title II to cover employment

disputes’’).

We turn next to the principle of giv‘ng full effect to each

provision of a statute. Congress consciously and expressly

chose to include the employment practices of state and local

governments in Title I. To hold that Title II also governs

their employment practices would render Congress’ special

effort to ensure their inclusion in Title I superfluous. Public

employees could avoid the procedural requirements of Title I

by pursuing all their claims under Title II]. This court gener-

ally refuses to interpret a statute in such a manner. See

Northwest Forest Resource Council v. Glickman, 82 F.3d

825, 834 (9th Cir. 1996) (“We have long followed the princi-

ple that statutes should not be construed to make surplusage

of any provision.”) (citation and internal quotation marks

omitted).

Titles I and II of the ADA incorporate their remedies and

procedures from different acts: Title | incorporates provisions

of Title VII of the Civil Rights Act of 1964, as amended,®

while Title II incorporates provisions of the Rehabilitation

Act.” Title I thereby incorporates Title VII's charge require-

ment, whereas Title II] incorporates the Rehabilitation Act's

provisions, which do not require an employee to pursue any

administrative relief. See Smith v. Barton, 914 F.2d 1330,

* See 42 U.S.C. § 12117(a) (Title 1) (“The powers, remedies, and proce-

dures set forth in sections 2000e-4, 2000e-5 [charge requirement}, 2000e-

6, 2000e-8 and 2000e-9 of this title [Title VII] shall be the powers, reme-

dies, and procedures this subchapter provides to the Commission, to the

Attorney General, or to any person alleging discrimination on the basis of

disability in violation of any provision of this chapter, or regulations

promulgated under section 12116 of this title, concerning employment.”).

* See 42 U.S.C. § 12133 (Title 11) (“The remedies, procedures, and rights

set forth in section 794a of Title 29 [the Rehabilitation Act] shall be the

remedies, procedures, and rights this subchapter provides to any person

alleging discrimination on the basis of disability in violation of section

12132 of this title.”).

App. 23

1338 (9th Cir. 1990) (“Private plaintiffs suing under section

504 [of the Rehabilitation Act] need not first exhaust admin-

istrative remedies.”). Allowing employment claims under

Title II would render the charge requirement completely su-

perfluous for public employees.

Next, we consider Congress’ choices respecting delega-

tion of authority to the Executive Branch. Titles I and II dele-

gate the responsibility to promulgate regulations to different

agencies. Title I requires the EEOC to issue regulations in-

terpreting that title. 42 U.S.C. § 12116. Title II, on the other

hand, gives that power to the Attorney General. 42 U.S.C. §

12134(a). If both Title I and II apply to disability discrimina-

tion in employment, then it is possible for state and local gov-

ernments to be subjected to conflicting regulations.

Congress was aware of the problem that conflicting regu-

lations could create. In response to that potential problem,

Congress ordered the agencies charged with enforcing Title I

(the EEOC) and the Rehabilitation Act of 1973 (the Attorney

General) to “develop procedures to ensure that administrative

complaints filed under this subchapter and under the Reha-

bilitation Act of 1973 are dealt with in a manner that avoids

duplication of effort and prevents imposition of inconsistent

or conflicting standards for the same requirements under this

subchapter and the Rehabilitation Act of 1973.” 42 U.S.C. §

12117(b). Congress’ failure to include a similar provision for

coordination between Titles I and II is evidence that it did not

intend for the Attorney General to have any power over em-

ployment under Title II; it never envisioned that there could

be a conflict.

Finally, the ADA’s linkage of Title I and the Rehabilita-

tion Act establishes that Congress thought that the ADA’s

employment-related provisions were embodied in Title I. not

Title II]. Congress made this linkage even stronger in 1992

when it amended the Rehabilitation Act to incorporate em-

ployment-related standards from Title I, not Title II:

App. 24

The standards used to determine whether this section

has been violated in a complaint alleging employment

discrimination under this section shall be the standards

applied under title I of the Americans with Disabilities

Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions

of sections 501 through 504, and 510, of the Americans

with Disabilities Act of 1990 (42 U.S.C. 12201-12204

and 12210), as such sections relate to employment.'°

29 U.S.C. § 794(d) (emphasis added).''

In conclusion, when viewed as a whole, the text, context

and structure of the ADA show unambiguously that Congress

did not intend for Title II to apply to employment. Under

these circumstances, we do not resort to legislative history,

and we do not defer to the Attorney General’s regulation.

See, e.g., Sloan v. West, 140 F.3d 1255, 1261 (9th Cir. 1998)

(“If the intent of Congress is clear from the face of the statu-

tory language, we must give effect to the unambiguously ex-

pressed Congressional intent.”); Moyle v. Director, Office of

Workers’ Comp. Programs, 147 F.3d 1116, 1120 (9th Cir.

1998) (“When interpreting a statute, we ordinarily first look

to the plain meaning of the language used by Congress. But if

the statute is ambiguous, we consult the legislative history, to

the extent that it is of value, to aid in our interpretation.”) (ci-

tation and internal quotation marks omitted), petition for cert.

filed, 67 U.S.L.W. 3394 (U.S. Dec. 3, 1998) (No. 98-927). '

'° The other cited sections of the ADA are among the “Miscellaneous Pro-

visions.”

'' Ordinarily, the 1992 Congress’ interpretation of a 1990 statute would

provide no guidance. However, 1992 was the first year in which the ADA

took effect, so the 1992 Congress was the first Congress that had to ad-

dress the interrelationship between the ADA and the Rehabilitation Act.

'? The Eleventh Circuit in Bledsoe stated that “extensive legislative com-

mentary regarding the applicability of Title I] to employment discrimina-

tion, however, is so pervasive as to belie any contention that Title II does

not apply to employment actions.” Bledsoe, 133 F.3d at 821. We again

part ways with the Eleventh Circuit. We have reviewed the legislative

App. 25

E. Rehabilitation Act

1. Express incorporation

Plaintiff and amicus argue that Title II expressly incorpo-

rates the Rehabilitation Act’s prohibition on employment dis-

crimination. We disagree.

Plaintiff and amicus rely, first, on 42 U.S.C. § 12133,

which provides:

The remedies, procedures, and rights set forth in sec-

tion 794a of Title 29 [the Rehabilitation Act] shall be the

remedies, procedures, and rights this subchapter pro-

vides to any person alleging discrimination on the basis

of disability in violation of section 12132 of this title.

(Emphasis added.) Because one of the “rights” in the Reha-

bilitation Act is the right to be free from employment dis-

crimination, plaintiff and amicus argue, 42 U.S.C. § 12133

incorporates that “right” into Title II.

However, 42 U.S.C. § 12133 incorporates only one sec-

tion of the Rehabilitation Act: 29 U.S.C. § 794a. That sec-

tion includes the Rehabilitation Act's procedural rights, not

its substantive rights. Congress’ choice to incorporate one

section of the Rehabilitation Act, which provides certain pro-

cedures, does not demonstrate that Congress also intended to

incorporate the rest of the Rehabilitation Act’s substance. In-

deed, it demonstrates precisely the opposite. See, e.g.,

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th

Cir. 1992) (“No sensible person accustomed to the use of

words in laws would speak so narrowly and precisely of par-

ticular statutory provisions, while meaning to imply a more

general and broad coverage than the statutes designated. In

this case, expressio unius est exclusio alterius.”).

Second, plaintiff and amicus rely on 42 U.S.C. §

12134(b), which provides in part:

history thoroughly and find it ambiguous at best. More importantly, we

are bound by what Congress actually enacted.

App. 26

Regulations under subsection (a) of this section shall

be consistent with this chapter and with the coordination

regulations under part 41 of title 28, Code of Federal

Regulations (as promulgated by the Department of

Health, Education, and Welfare on January 13, 1978),

applicable to recipients of Federal financial assistance

under section 794 of Title 29.

They argue that, because 28 C.F.R. § 41.1 ef seq. (1989) pro-

hibited employment discrimination, the foregoing provision

demonstrates Congress’ intent to incorporate that prohibition

into Title II]. See 28 C.F.R. §§ 41.52-41.55 (so prohibiting).

See also 28 C.F.R. § 35.140 App. A (“The statutory language

of section [12134] of the ADA requires the Department to

issue a regulation that is consistent with the ADA and the De-

partment’s coordination regulation under section 504, 28

C.F.R. part 41. The coordination regulation specifically re-

quires nondiscrimination in employment.”). We again dis-

agree.

Unlike 42 U.S.C. § 12133, 42 U.S.C. § 12134(b) does not

suggest that Congress intended to incorporate any provisions

from the Rehabilitation Act into Title II. Instead, 42 U.S.C. §

12134(b) merely requires the Attorney General to ensure that

the regulations are “compatible” to the extent that they over-

lap. See, e.g., Webster’s Third New Int'l Dictionary 484 (un-

abridged ed. 1993) (“Consistently [means] . . . compatibly . . .

congruously . . . [or] in harmony with.”). The regulations in

question embrace four main topics: They define terms such

as “handicap” or “disability”; list types of prohibited dis-

crimination in programs, activities, and services; list types of

prohibited discrimination in employment, and set accessibility

standards. Because of the several topics, of which employ-

ment is but one, we infer that Congress intended employment

to be an area of regulatory overlap.

We conclude that Congress did not expressly incorporate

the substantive employment provisions of the Rehabilitation

Act into Title II.

App. 27

2. Implied incorporation

Even if Title II of the ADA does not expressly incorporate

the Rehabilitation Act’s substantive employment rights,

plaintiff and amicus argue, it impliedly incorporates those

rights. We are not persuaded.

Congress did model Title II on the Rehabilitation Act. See

Weinreich, 114 F.3d at 978 (“Title li of the ADA was ex-

pressly modeled after Section 504 of the Rehabilitation Act . .

..”). Plaintiff and amicus argue that, because Title II merely

expands the reach of the Rehabilitation Act, Title II must also

apply to employment.

Unlike the Rehabilitation Act, Title II applies to all public

entities, whether or not they receive federal financial assis-

tance. Thus, in some respects, it is true that Congress broad-

ened the provisions of the Rehabilitation Act in Title II.

On the other hand, the Rehabilitation Act also applied

(and still does apply) to private entities that receive federal

financial assistance. See 29 U.S.C. § 794(b) (“The term ‘pro-

gram or activity’ means all operations of . . . an entire corpo-

ration, partnership, or other private organization . . . .”) (em-

phasis added). See also Jacobson v. Delta Airlines, Inc., 742

F.2d 1202, 1209 (9th Cir. 1984) (holding that private airlines

are subject to the Rehabilitation Act if they receive federal

subsidies). Congress did not make private entities subject to

Title II; instead, they are subject only to Titles I, II], and V. In

other words, Congress also limited the reach of the Rehabili-

tation Act in Title II.

In the circumstances, Congress’ use of the Rehabilitation

Act as a model for Title II does not, standing alone, evidence

Congress’ intent to incorporate the employment provisions

from that Act into Title II, as distinct from Title I. Rather, we

must examine carefully the similarities and differences be-

tween the two statutes to determine whether Congress had

such an intent.

App. 28

Plaintiff and amicus note that Title I] contains wording

that is similar to the wording found in § 504 of the Rehabili-

tation Act. Before the enactment of the ADA, the Supreme

Court had held that § 504 applies to employment. Consoli-

dated Rail Corp. v. Darrone, 465 U.S. 624, 631-34 (1984).

Plaintiff and amicus argue that we must interpret Title II,

likewise, to apply to employment. See, e.g., Bledsoe, 133

F.3d at 821 (“It is significant that Congress intended Title II

to work in the same manner as Section 504 of the Rehabilita-

tion Act, because Section 504 was so focused on employment

discrimination that Congress enacted subsequent legislation to

clarify that Section 504 applied to other forms of discrimina-

tion in addition to employment discrimination.”) (citing Con-

solidated Rail, 465 U.S. at 626-32); Alberti, 1998 WL

954876, at *5 (“Congress modeled Title II of the ADA after

the Rehabilitation Act. ... When Congress passed the ADA

in 1990, it was clearly established that the Rehabilitation Act

covers employment discrimination.”) (citing Consolidated

Rail, 465 U.S. at 624); Downs, 13 F. Supp. 2d at 135 (“Lan-

guage in § 504 very similar to that of 42 U.S.C. § 12132 (and

similarly devoid of express reference to employment) had

long been understood to prohibit employment discrimina-

tion.”) (citing Consolidated Rail, 465 U.S. at 632); Ethridge

v. Alabama, 847 F. Supp. 903, 906 (M.D. Ala. 1993) (“A

primary purpose of § 12131 was to extend the reach of § 504

of the Rehabilitation Act of 1973 . . . Section 504, including

its amendments and regulations, clearly applies to employ-

ment discrimination.”) (citing Consolidated Rail, 465 U.S. at

626).

The answer is not so simple, for four reasons. (1) Textu-

ally, Congress did not borrow the wording of § 504 verbatim

when it drafted Title II, although the phrasing of the two stat-

utes is similar. (2) Contextually, surrounding sections of the

Rehabilitation Act relate explicitly to employment, whereas

no section of Title II relates to employment. (3) The Congres-

sional purpose to cover employment could not be carried out

App. 29

under the Rehabilitation Act except by construing its sole op-

erative provision, § 504, to encompass employment, whereas

the Congressional purpose ito cover employment is carried out

in a separate operative provision of the ADA (Title I). (4)

Congress has linked the Rehabilitation Act to Title I, but not

Title II, of the ADA.

We turn firsto-the-statutory text. “When a legislature

borrows an already judicially interpreted phrase from an old

statute to use it in a new statute, it is presumed that the legis-

lature intends to adopt not merely the old phrase but the judi-

cial construction of that phrase.” Long v. Director. Office of

Workers’ Comp. Programs, 767 F.2d 1578, 1581 (9th Cir.

1985) (citation and internal quotation marks omitted). See

also Collings v. Longview Fibre Co., 63 F.3d 828. 832 n.3

(9th Cir. 1995) (“The legislative history of the ADA indicates

that Congress intended judicial interpretation of the Reha-

bilitation Act be incorporated by reference when interpreting

the ADA.”). That rule of interpretation makes sense, how-

ever, only when the new statute contains materially the same

phrase as is found in the old statute. Here. Congress chose

not to adopt the broad wording of the Rehabilitation Act.

When the Supreme Court interpreted § 504 of the Reha-

bilitation Act, that section provided in part:

No otherwise qualified handicapped individual in the

United States, as defined in section 706(7) of this title,

shall, solely by reason of his handicap, be excluded from

the participation in, be denied the benefits of, or be sub-

ject to discrimination under any program or activity re-

ceiving Federal financial assistance or under any pro-

gram or activity conducted by any Executive agency or

by the United States Postal Service.

29 U.S.C. § 794 (1984) (emphasis added); Consolidated Rail,

465 U.S. at 632. The Rehabilitation Act’s phrase “under any

program or activity receiving Federal financial assistance” is

App. 30

broader than Title II’s phrase, “in . . . the services, programs,

or activities of a public entity.”

The focus of the emphasized phrase in § 504 of the Reha-

bilitation Act is the receipt of Federal financial assistance.

See Consolidated Rail, 465 U.S. at 631-36 (discussing the

meaning of the requirement that a program receive Federal

financial assistance). Discrimination is prohibited under any

program or activity that receives such assistance. This focus

naturally encompasses the entire operation of the program or

activity, for its federal funding may well flow into compensa-

tion for employees.

To the extent that there was any ambiguity about the

breadth of that wording when the Supreme Court decided

Consolidated Rail, Congress amended § 504 in 1988 to make

its breadth clear. That amendment defined the term “program

or activity” to include “all of the operations” of the entity.’

By contrast, the focus of Title I] of the ADA is on the

services, programs, or activities that a public entity provides.

That is an outward-looking focus.

In summary, when Congress enacted the ADA, § 504’s

“under any program or activity” wording was very broad.

Congress’ decision to use a narrower phrase in Title II indi-

cates its intent for Title II not to be coextensive with the Re-

habilitation Act.

'' Title 29 U.S.C. § 794(b) provides in part:

For the purposes of this section, the term “program or activity”

means all of the operations of -

(1)(A) a department, agency, special purpose district, or other

instrumentality of a State or of a local government; or

(B) the entity of such State or local government that dis-

tributes such assistance and each such department or agency (and

each other State or local government entity) to which the assistance

is extended, in the case of assistance to a State or local govern-

ment{[.]

App. 31

Moreover, unlike Title II of the ADA, the Rehabilitation

Act contained several employment-related provisions. For

example, Congress limited the application of § 504 to an

“otherwise qualified handicapped individual in the United

States, as defined in section 706(7).” 29 U.S.C. § 794 (1984).

In turn, 29 U.S.C. § 706(7) defines that term solely in relation

to employment. See 29 U.S.C. § 706(7)(A) (1984) (“The

term ‘handicapped individual’ means any individual who (i)

has a physical or mental disability which for such individual

constitutes or results in a substantial handicap to employment;

and (ii) can reasonably be expected to benefit in terms of em-

ployability.”) (emphasis added). See also 29 U.S.C. §

706(7)(B) (1984) (“For purposes of sections 793 and 794 of

this title as such sections relate to employment, such term

does not include any individual who is an alcoholic or drug

abuser whose current use of alcohol or drugs prevents such

individual from performing the duties of the job in question or

whose employment, by reason of such current alcohol or drug

abuse, would constitute a direct threat to property or the

safety of others.”’) (emphasis added).

In fact, one of Congress’ express purposes in enacting the

Rehabilitation Act was to “promote and expand employment

opportunities in the public and private sectors for handi-

capped individuals.” See Consolidated Rail, 465 U.S. at 626

(quoting 29 U.S.C. § 701(8) (1973)). These textual and con-

textual clues demonstrated that Congress intended for the Re-

habilitation Act to apply to employment despite the absence

of an express mention of employment in § 504 itself.

By contrast, Title II contains no employment-specific

provisions. Congress placed all of those provisions in Title I.

Unlike the ADA, the Rehabilitation Act has no separate title

specifically governing employment. See, e.g., Consolidated

Rail, 465 U.S. at 632 n.13 (contrasting the Civil Rights Act of

1964 because, “as the Court of Appeals observed, it was un-

necessary to extend Title VI more generally to ban employ-

App. 32

ment discrimination, as Title VIi comprehensively regulates

such discrimination”).

The Supreme Court’s interpretation of Title IX of the

Education Amendments of 1972 (which the Supreme Court

also has held applies to employment) highlights the effect of*

that difference in statutory structure. See North Haven Bd. of

Educ. v. Bell, 456 U.S. 512 (1982) (construing Title IX). Title

IX provides in part:

No person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving Federal finan-

cial assistance ....

20 U.S.C. § 1681(a) (emphasis added). As does the Reha-

bilitation Act, Title IX contains the phrase “under any .. .

program or activity receiving Federal financial assistance,”

which is broader than the corresponding phrase in Title II of

the ADA. The Supreme Court noted that the wording of Title

IX was “broad” and that it “favored” inclusion of employees.

North Haven, 456 U.S. at 520, 522. Even so, before con-

cluding that Title IX covered employment, the Court rea-

soned:

If we are to give [Title IX] the scope that its origins

dictate, we must accord it a sweep as broad as its lan-

guage. Because [Title IX] neither expressly nor im-

pliedly excludes employees from its reach, we should

interpret thé provision as covering and protecting these

“persons” unless other considerations counsel to the

contrary.

Id. at 521 (emphasis added) (citations and internal quotation

marks omitted).

There is no need under the ADA to interpret Title Il

broadly “to give [the ADA] the scope that its origins dictate.”

Unlike both Title IX and the Rehabilitation Act, the ADA

contains a detailed, separate employment discrimination title.

App. 33

Title I protects nearly all state and local government employ-

ees even if Title II does not apply to employment. See Bled-

soe v. Palm Beach Soil & Water Conserv. Dist., 942 F. Supp.

1439, 1444 n.4 (S.D. Fla. 1996) (“The Court recognizes that

the Supreme Court has construed similar language in the Re-

habilitation Act to include employment. However, the Reha-

bilitation Act only applied to any ‘program or activity,’ and

added that these were to be construed to include ‘all opera-

tions’ of the covered entities. The Court believes that by...

creating an entire new section devoted to employment, Con-

gress meant to bifurcate the ADA into one section dealing

with public and private employment relationships, and one

section dealing with government services.”) (citation omit-

ted), rev'd, 133 F.3d 816 (11th Cir.), cert. denied, 119 S. Ct.

72 (1998)."

Finally, as noted above, Congress amended the Rehabili-

tation Act to incorporate the employment provisions from Ti-

tle I of the ADA. See 29 U.S.C. § 794(d) (quoted at p. 2345

above). Because Congress expressly linked the Rehabilitation

Act’s employment provisions to Title I (but not to Title II), “it

would seem rather bizarre to find an employment cause of

action in Title II of the ADA on the grounds that Title II is

tied to the Rehabilitation Act, when the Rehabilitation Act

itself ties its employment cause of action to Title I.” Bledsoe,

942 F. Supp. at 1446.

In summary, the Rehabilitation Act does not provide a ba-

sis for interpreting Title II to apply to employment. To the

contrary, the differences between that Act and Title II further

Support the conclusion that Congress did not intend for Title

I] to apply to employment.

'* As the citation shows, the Eleventh Circuit has reversed the district

court’s decision in Bledsoe. We cite the district court’s decision for the

strength of its reasoning and not the force of its authority.

App. 34

F. Precedent

We are mindful that most courts have held that Title II

applies to employment. Ordinarily, we would find it difficult

to hold that the wording of a statute unambiguously indicates

a contrary congressional intent in the face of such precedent.

However, those courts generally have ignored the wording of

Title II altogether,'* including the definition of “qualified in-

dividual with a disability” from that Title and the surrounding

words in 42 U.S.C. § 12132. Instead, they have: (1) assumed

without analysis that Title II applies to employment,'® (2) re-

lied only on the Attorney General’s regulation and the legis-

lative history of the ADA, without discussion of the statutory

text and context,'’ (3) relied on the Rehabilitation Act without

'S The major exception is the Eleventh Circuit’s decision in Bledsoe.

Like the cases listed infra at footnote 13, that court relied primarily on the

ADA’s legislative history and the Attorney General’s regulation. See

Bledsoe, 133 F.3d at 821-22. However, the court also justified its result

with reference to the second clause of § 12132, which it described as a

““catch-all phrase that prohibits all discrimination by a public entity.’” /d.

at 822 (citation omitted); See also Alberti, 1998 WL 954876, at *4 (rely-

ing on the second clause of § 12132); Downs, 13 F. Supp. 2d at 135 (re-

lying on the second clause of § 12132). However, for reasons that we

already have discussed, we do not think that this reading of the statutory

text is correct.

'© See, e.g., Holmes v. Texas A & M Univ., 145 F.3d 681, 683-84 (Sth Cir.

1998); Doe v. University of Maryland Med. Sys., 50 F.3d 1261, 1264-65 &

n.9 (4th Cir. 1995); Motto v. City of Union City, 1997 WL 816509, at *8

(D.N.J. Aug, 27, 1997); Davoll v. Webb, 943 F. Supp. 1289, 1297 (D.

Colo. 1996); Dertz v. City of Chicago, 912 F. Supp. 319, 323-25 (N.D. Ill.

1995), reconsidered in part on other grounds, 1997 WL 85169 (Feb. 24,

1997); Doe v. County of Milwaukee, 871 F. Supp. 1072, 1074 (E.D. Wis.

1993); Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78,

83-84 (W.D. Mich. 1993); Finley v. Giacobbe, 827 F. Supp. 215, 219 n.3

(S.D.N.Y. 1993).

"" See, e.g., Hernandez v. City of Hartford, 959 F. Supp. 125, 133 (D.

Conn. 1997) (“On its face, Title II prohibits discrimination in ‘public

services’. A plain reading of the section does not reveal whether Title Il

covers employment discrimination addressed more specifically in Title I.

The regulations under and the legislative history of ADA Title I] make it

A i ag me i te

App. 35

analyzing whether Congress intended to incorporate its prohi-

bition against employment discrimination into Title 1,"® or

(4) relied solely on the foregoing precedent without inde-

pendent consideration of the problem.'? Because of the lim-

ited analysis performed in those cases - in particular, their

failure to consider the statutory text and context carefully - we

simply do not find them persuasive.

CONCLUSION

We realize that our decision creates an inter-circuit split

of authority. Although we are hesitant to create such a split,

and we do so only after the most painstaking inquiry, we must

follow the unambiguously expressed intent of Congress. We

therefore hold that Title II does not apply to employment.

AFFIRMED.

clear, however, that § 12132 prohibits employment discrimination by

public entities on the basis of disability.”) (footnote and citation omitted);

Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996)

(“Although it is not apparent from the plain language of § 12132, the

regulations issued by the Department of Justice make it clear that the pro-

hibition against discrimination by public entities includes employment

discrimination.”). See also Winfrey v. City of Chicago, 957 F. Supp.

1014, 1023 n.7 (N.D. Ill. 1997) (similar); Silk v. City of Chicago, No. 95 C

0143, 1996 WL 312074, *10 (N.D. Ill. June 7, 1996) (similar); Benedum

v. Franklin Township Recycling Center, No. 95-1343, 1996 WL 679402,

at *5 (W.D. Pa. Sept 12, 1996) (similar); Petersen v. Univ. of Wisconsin

Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993) (similar).

'§ See, e.g, Bledsoe, 133 F.3d at 821; Alberti, 1998 WL 954876, at *5:;

Downs, 13 F. Supp. 2d at 135; Ethridge, 847 F. Supp. at 906.

9 See, e.g., Saylor v. Ridge, 989 F. Supp. 680, 688 (E.D. Pa. 1998) (“We

are inclined to follow the reasoning and holdings of our brethren which

also appears to be the view followed by the majority of courts nationwide

which have confronted this issue.”). See also Magee v. Nassau County

Medical Center, 27 F. Supp. 2d 154, 159 (E.D.N.Y. 1998) (similar); Fo-

bar v. City of Dearborn Heights, 994 F. Supp. 878, 885 n.3 (E.D. Mich.

1998) (similar); Bruton v. Southeastern Penn. Transp. Auth., No. 94- CV-

3111, 1994 WL 470277, at *2 (E.D. Pa. Aug. 19, 1994) (similar).

App. 36

SCOT L. ZIMMERMAN, Plaintiff-Appellant,

Vv.

STATE OF OREGON

DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 97-36101

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

July 28, 1999, Filed

The panel has voted to deny the petition for rehearing en

banc.

The full court was advised of the petition for rehearing en

banc. A judge of the court requested a vote on whether to

rehear the matter en banc. The matter failed to receive a ma-

jority of the votes of the nonrecused active judges in favor of

en banc consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED.

REINHARDT, Circuit Judge, with whom Circuit Judges

PREGERSON and HAWKINS join, dissenting from the de-

nial of reconsideration en banc:

I dissent from the court’s refusal to reconsider, en banc,

the panel’s decision in this important case of national signifi-

cance. The panel’s opinion holding that Title II of the Ameri-

cans with Disabilities Act (ADA) does not prohibit employ-

ment discrimination by public entities is directly contrary to

the plain language of the statute, to the clearly expressed in-

tent of Congress, and to the Department of Justice’s authori-

tative implementing regulations. Moreover, the panel’s

:

'

Ne tc ot. 1 aerate

App. 37

opinion conflicts either directly or indirectly with the position

taken by every circuit to confront the question, including

ours, See Norman-Bloodsaw v. Lawrence Berkeley Labora-

tory, 135 F.3d 1260, 1272 (9th Cir. 1998) (applying, without

discussion, Title II to employment discrimination claim);

Bledsoe v. Palm Beach County Soil and Water Conservation

Dist., 133 F.3d 816 (11th Cir. 1998) (holding that Title II ap-

plies to employment discrimination); Castellano v. City of

New York, 142 F.3d 58 (2d Cir. 1998) (applying Title II to

employee benefits discrimination claim); Holmes v. Texas A

& M, 145 F.3d 681, 684 (Sth Cir. 1998) (applying Title II to

employment discrimination claim); Doe v. University of

Maryland Medical Sys. Corp., 50 F.3d 1261 (4th Cir. 1995)

(applying Title II to employment discrimination claim using

same standards as under Rehabilitation Act), as well as with

18 of the 21 published district court opinions addressing the

issue.’ The Ninth Circuit now stands alone in adopting an

' Saylor v. Ridge, 989 F. Supp. 680 (E.D. Pa. 1998): Magee v. Nassau

County Medical Center, 27 F. Supp. 2d 154 (E.D.N.Y. 1998); Fobar v.

City Dearborn Heights, 994 F. Supp. 878 (E.D. Mich. 1998); Alberti v.

City and County of San Francisco, 32 F. Supp. 2d 1164 (N.D. Cal. 1998),

Downs v. Massachusetts Bay Transp. Auth., 13 F. Supp. 2d 130 (D. Mass.

1998); Winfrey v. City of Chicago, 957 F. Supp. 1014 (N.D. Ill. 1997);

Dominguez v. City of Council Bluffs, 974 F. Supp. 732 (S.D. lowa 1997);

Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn. 1997); Roe v.

County Comm'n of Monongalia, 926 F. Supp. 74 (N.D. W. Va. 1996);

Graboski v. Guiliani, 937 F. Supp. 258 (S.D.N.Y. 1996); Wagner v. Texas

A & M Univ., 939 F. Supp. 1297 (S.D. Tex. 1996); Davoll v. Webb, 943 F.

Supp. 1289 (D. Colo. 1996); Dertz v. City of Chicago, 912 F. Supp. 319

(N.D. Ill. 1995); Doe v. County of Milwaukee, 871 F. Supp. 1072 (E.D.

Wisc. 1993); Eisfelder v. Michigan Dep't of Natural Resources, $47 F.

Supp. 78 (W.D. Mich. 1993); Finley v. Giacobbe, 827 F. Supp. 215

(S.D.N.Y. 1993); Petersen v. University of Wisconsin Bd of Regents, 818

F. Supp. 1276 (W.D. Wisc. 1993); Ethridge v. State of Alabama, 847 F.

Supp. 903 (M.D. Ala. 1993). Two of the three district court opinions

agreeing with Zimmerman have already been overruled: Bledsoe v. Palm

Beach Soil and Water Conservation Dist., 942 F. Supp. 1439 (S.D. Fla.

1996), rev'd, 133 F.3d 816 (1 Ith Cir. 1998), and Decker v. University of

Houston, 970 F. Supp. 575 (S.D. Tex. 1997). Decker is no longer good

App. 38

interpretation of the ADA that deprives disabled persons of a

right expressly granted them by Congress - the right to bring

an action for employment discrimination under Title II of the

ADA.

Overview

The panel holds that the “plain meaning” of Title II of the

ADA excludes discrimination in employment from the other-

wise broad anti-discrimination prohibition of that Title. Such

is not only not the plain meaning of Title II, but the panel’s

interpretation is directly contrary to the express language of

the Title, to the unequivocal legislative history of the Title

and to the uniform administrative interpretations of the Title

rendered by the agency charged by Congress with that func-

tion. Title II contains two independent clauses, each of which

serves to prohibit discrimination in employment. The Title

contains no language of exclusion and the panel points to

none. Rather it relies on a concept of its own creation - “in-

puts” and “outputs” - a concept found nowhere in the statute,

or in any of the pertinent materials, as well as on a structural

argument not accepted by any other circuit court. The panel’s

mode of statutory analysis at most results in a question of

statutory ambiguity. However, if Title Il were ambiguous, we

would still be required by the applicable rules of statutory

construction to hold that it covers every form of discrimina-

tion, including employment discrimination. Thus, the panel is

compelled to base its decision exclusively on its plain mean-

ing argument, an argument that cannot survive serious scru-

tiny.

law, given the Fifth Circuit's contrary opinion in Holmes. Thus, Patterson

v. Illinois Dep't of Corrections, 35 F. Supp. 2d 1103 (C.D. Ill. 1999) pro-

vides the slim reed of support on which Zimmerman rests. In addition to

these published cases, 4 out of 6 unpublished district court decisions dis-

agree with Zimmerman.

App. 39

A. Plain Meaning of the ADA

The plain meaning of Title II is that it prohibits employ-

ment discrimination as well as all other forms of discrimina-

tion by public entities against the disabled. The ADA was

enacted by Congress in 1990 “to provide a clear and compre-

hensive national mandate for the elimination of discrimina-

tion against individuals with disabilities.” 42 U.S.C. §

12101(b)(1). Title II provides that no disabled individual:

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 such entity.

42 U.S.C. § 12132. The panel concludes that this language

obviously and unambiguously excludes discrimination in em-

ployment from its purview. Yet, there is nothing in the plain

meaning of the words that even suggests, let alone mandates,

this result. The words themselves are self-evidently broad

and inclusive. There are two clauses; each of which, properly

construed, includes a proscription on workplace discrimina-

tion.

1. First Clause

The first clause bars discrimination in any of the “pro-

grams, services, or activities” of a local governmental entity.

The plain and ordinary meaning of “activity” clearly does not

exclude hiring or employing workers. Indeed, putting people

to work is often the chief “activity” of municipalities. Al-

though Title II does not define these terms, the Rehabilitation

Act - with which Congress specified that Title II is to be in-

terpreted consistently - does. See 42 U.S.C. § 12133 (pro-

viding that “remedies, procedures, and rights” under Title II

are the same as those provided in § 794a of the Rehabilitation

Act); 42 U.S.C. § 12134 (providing that Title II should be in-

terpreted consistently with regulations under the Rehabilita-

tion Act). Section 508 of the Rehabilitation Act defines “pro-

gram or activity” as “all of the operations” of the govern-

App. 40

mental entity. 29 U.S.C. 794(b); Innovative Health Sys., Inc.

v. City of White Plains, 117 F.3d 37, 44 (2d Cir. 1997)

(holding that “activity” under Title II] has same meaning as

“activity” under the Rehabilitation Act and includes all op-

erations of the entity).

Furthermore, the Supreme Court has specifically inter-

preted the “programs and activities” language in the Reha-

bilitation Act to include employment, and thus to bar em-

ployment discrimination. Consolidated Rail v. Darrone, 465

U.S. 624, 631-34 (1984). The language at issue here (Title II)

is unquestionably broader than that in Consolidated Rail, par-

ticularly as Title II, unlike the Rehabilitation Act, contains an

independent discrimination clause banning all discrimination,

in addition to the clause which the Supreme Court construed:

the “programs and activities” provision that is common to

both statutes. Thus, there can be no justification for con-

cluding, as the panel does, that Title II is somehow narrower.

Indeed, applying Title II to discrimination in employment, the

Fourth Circuit concluded that the same standard applies to

employment discrimination actions brought under Title Il

and the Rehabilitation Act, because, as Judge Wilkins wrote

for the court, in an opinion joined by Judges Wilkinson and

Luttig, “the language of the Rehabilitation Act and Title i! is

substantially the same.” Doe v. University of Maryland

Medical Sys. Corp., 50 F.3d 1261, 1264 (4th Cir. 1995).

Moreover, the ADA contains a further provision stating that

“nothing in this chapter [the ADA] shall be construed to apply

a lesser standard than the standards applied under Title V of

the Rehabilitation Act of 1973 or the regulations issued by

Federal agencies pursuant to such title. 42 U.S.C. § 12201(a).

Where, as here, the language is not only similar, but indeed

broader, it must be accorded at a minimum the same meaning

- 1.e., prohibiting employment discrimination.

The panel attempts to distinguish the Supreme Court deci-

sion in Consolidated Rail by pointing out that the Rehabilita-

tion Act, unlike the ADA, was limited to those governmental

s

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-

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{

:

App. 41

entities receiving federal funds. Thus, according to the panel,

the Supreme Court interpreted the Rehabilitation Act to bar

employment discrimination because it was possible that fed-

eral funds “may well flow into compensation for employees.”

The panel overlooks the fact, however, that in Consolidated

Rail, the Supreme Court expressly rejected the argument that

Congress was concerned about whether the federal funds

were to be used to promote employment, and instead said that

the Act was intended to “prohibit[] employment discrimina-

tion regardless of the purpose of federal financial assistance.”

465 U.S. at 632.

Despite the overwhelming legal authority that the phrase

“services, programs, and activities” under Title II is to be in-

terpreted consistently with the phrase “programs and activi-

ties” under the Rehabilitation Act, and thus to include em-

ployment discrimination, the panel arrives at precisely the

Opposite conclusion. In so doing, the panel rests its determi-

nation almost entirely on an erroneous and non-existent di-

chotomy between “inputs” and “outputs,” asserting that em-

ployment is in the former category, while “programs, serv-

ices, or activities” fall within the latter.

The distinction between “inputs” and “outputs” finds no

Support whatever in the statutory language (or in the legisla-

tive or administrative history). Indeed, the approach was first

concocted by a district court in Florida in a decision that has

since been reversed in an Eleventh Circuit opinion holding

that Title II does apply to employment discrimination. See

Bledsoe v. Palm Beach Soil and Water Conservation Dist.,

942 F. Supp. 1439, 1443 (S.D. Fla. 1996), rev'd, 133 F.3d

816 (11th Cir. 1998).2 The input-output format adopted by

> The input-output distinction was also adopted by a district court in

Texas, see Decker, 970 F. Supp. at 578, but that decision was subse-

quently implicitly overruled by the Fifth Circuit when it applied Title II to

discrimination in employment. See Holmes v. Texas A & M University,

145 F.3d 681, 684 (Sth Cir. 1998).

App. 42

the panel will plunge district courts, and this court as well,

into the impossible task of categorizing municipal and state

functions and activities into two newly created categories -

inputs and outputs - categories heretofore unknown to Con-

gress or the affected administrative agencies, to local or state

governments, or to the federal or state courts, with no stan-

dards or definitions to guide the entities or parties involved.

In any event, it is certainly hard to find “inputs” and “outputs”

in the plain meaning of Title II.

In reaching its decision that the plain meaning of Title II

excludes discrimination in employment from its coverage, the

panel also ignores the A.D.A.’s clear command that Title II

be interpreted consistently with the regulations issued under

the Rehabilitation Act. 42 U.S.C. § 12134. The particular

regulations specified in the text of the statute include specific

prohibitions against employment discrimination. The panel

refused, however, to consider that statutory command as evi-

dence that Title II prohibits employment discrimination be-

cause, it said, “employment is but one” of the topics covered

by the regulations. Slip Op. at 2348. The panel does not,

however, offer any reason why that fact should justify ignor-

ing the specific statutory requirement that those particular

regulations affecting employment discrimination be made ap-

plicable. Similarly, the panel refuses to give effect to the

statute’s directive in § 12133 that the “remedies, procedures,

and rights” under Title II shall be identical with those under §

504 of the Rehabilitation Act. The referenced section of the

Rehabilitation Act, in turn, provides that the “remedies, pro-

cedures, and rights [of Title VI of the Civil Rights Act] shall

be available to any employee or applicant for employment . . .

.” 29 U.S.C. 794a (emphasis added). The panel concludes

that this plain language does not demonstrate a congressional

intent to grant victims of employment discrimination a cause

of action, i.e. rights, under Title II because that section of the

Rehabilitation Act deals only with “procedural” rights. This

reasoning completely ignores the fact that the rights addressed

i

:

|

App. 43

are those of “any employee or applicant for employment.” In

this circumstance, it is irrelevant whether the rights are

viewed as “procedural” or “substantive,” although it is diffi-

cult, in any event, to comprehend why the panel concludes

that they are plainly only procedural.

2. Second Clause

The plain meaning of the second clause of § 12132 even

more clearly encompasses employment discrimination - if

that is possible. The second clause is separated from the first

by a comma followed by “or be subjected to discrimination

by any such entity.” The second and independent clause, like

the first, does not contain any language which limits it to an

“outward” focus; nor does its language in any way limit the

flat and unqualified statutory prohibition against discrimina-

tion by any public entity. Certainly, nothing in the statutory

language purports to exclude discrimination in employment.

To the contrary, the second clause plainly and unequivocally

prohibits covered entities from engaging in any discrimina-

tion. The panel, however, concludes that the second clause

also applies only to discrimination in the provision of “serv-

ices, programs, and activities” and cites Crowder v. Kita-

gawa, 81 F.3d 1480 (9th Cir. 1996), for support. Crowder in

no way supports the panel’s opinion; indeed, it is pertinent

only to the extent that it emphasizes the “or” that separates

the two independent clauses, and the substantive differences

in congressional intent with respect to these clauses. The

only issue in Crowder was whether discrimination with re-

spect to “services, programs, and activities” need be direct

and intentional, and the court said, “no,” a holding of no rele-

vance here.

The proper construction of the second clause was afforded

it by both the Eleventh and the Second Circuits. In Bledsoe,

the Eleventh Circuit wrote:

As the Second Circuit found in Jnnovative Health

Systems, Inc. v. City of White Plains, 117 F.3d 37, 44-45

(2d Cir. 1997), “the language of Title II’s antidiscrimi-

App. 44

nation provision does not limit the ADA’s coverage to

conduct that occurs in the ‘programs, services, or activi-

ties’ of [a public entity]. Rather, it is a catch-all phrase

that prohibits all discrimination by a public entity, re-

gardless of the context, .. . .” Accordingly, employment

coverage is clear from the language and structure of Ti-

tle II.

Bledsoe, 133 F.3d at 821. To conclude that the panel clearly

erred in holding that the plain meaning of Title II is that it is

inapplicable to discrimination in employment, we need only

look to what the Second and Eleventh Circuits have une-

quivocally stated regarding the Title’s second and independ-

ent clause. “It is a catch-all phrase that prohibits all discrimi-

nation by a public entity, regardless of the context... .” Jd.

The panel supports its niggardly construction of the sec-

ond clause by suggesting that Title II’s definition of “quali-

fied individual with a disability” somehow excludes coverage

for employment discrimination. Its argument essentially is

that the definition of that term in 42 U.S.C. § 12131(2) neces-

sarily limits Title II’s coverage to “services, programs or ac-

tivities.” Slip Op. at 2338-39. There are two obvious prob-

lems with this argument. First, it would read the second

clause of § 12132 - “or be subjected to discrimination” - en-

tirely out of the statute and render it redundant. Second, as

noted above, both Congress and the Supreme Court have al-

ready made it absolutely clear that programs and activities as

used in the Rehabilitation Act - with which the ADA is to be

interpreted consistently, see Bay View Addiction Research

and Treatment, Inc. v. City of Antioch, 1999 WL 351126, at

*3 (9th Cir. June 3, 1999), does cover employment. At most,

the definition of a disabled person in the definition section of

Title II raises a question, or creates an ambiguity, regarding

the meaning of Title II’s language. It does not in any way

“plainly” exclude employment discrimination from the pur-

view of a statute that, on its face, clearly covers it.

App. 45

As the Eleventh Circuit concluded in Bledsoe: “Accord-

ingly, employment coverage is clear from the language and

structure of Title II.” /d. In sum, the plain language of Title

Il prohibiting “discrimination,” coupled with the plain lan-

guage of other parts of Title II that incorporate by reference

parts of the Rehabilitation Act, demonstrates that Congress

unambiguously intended to include, and did include, em-

ployment discrimination within the scope of Title II. Such

coverage is provided for in the plain language of both the first

and the second clauses of § 12132, as indeed are all forms of

discrimination by public entities. Thus, the panel’s conclu-

sion that the plain meaning of the statute compels the opposite

result - that Title II excludes employment discrimination from

its Coverage - is to misread the Statutory language completely.

3. Structure

The panel states that Title I of the ADA prohibits dis-

crimination in employment, and then treats Titles I and II as

necessarily mutually exclusive, although other circuits have

consistently construed them as overlapping. See e.g., Bled-

soe, 133 F.3d at 820. In insisting on a necessary mutual ex-

clusivity, the panel ignores the plain statutory language of Ti-

tle II and relies on an entirely unsupportable theory that ap-

plying Title II to employment discrimination would render

Title 1 superfluous. In this respect as well, the panel clearly

errs. There are differences in the scope of coverage of em-

ployment discrimination under Title I and Title II (Title |

covers employers with 15 or more employees, while Title II

covers all public employers, regardless of size), the two Titles

evolved from different civil rights laws (Title I is modeled on

Title VII of the 1964 Civil Rights Act, while Title II is mod-

eled on the Rehabilitation Act and Title VI of the 1964 Civil

Rights Act), and there is a difference in the forms of relief

(compensatory and punitive damages are available under Title

I, but may not be under Title II), and the procedures to be

followed (administrative exhaustion is required under Title |

but not under Title II). Thus, the provisions of the two Titles

App. 46

are not coextensive; although both apply to employment,

neither is redundant.

Congress’s decision to provide two approaches to reme-

dying discrimination in employment in one complex disabil-

ity statute has caused some to question the wisdom of its pol-

icy and its rationale. It is, of course, not our function to do so.

See United States v. Burdeau, 1999 WL 421319, at *2 (9th

Cir. 1999) (Kozinski, J., dissenting from the order rejecting

the suggestion for rehearing en banc). In any event, if the fact

that two Titles appear to address the same general area of dis-

crimination raises some doubt about the meaning of one or

both Titles, the statute is, at most, ambiguous, and it is the

unequivocal legislative history to which we must turn.

Before doing so, 1 would add that the panel acted properly

in examining the statute’s structure and the statute as a whole,

as well as the statutory objectives and policies, if it believed

that its effort to determine Title II’s plain meaning would

benefit from such an examination. See Northwest Forest Re-

source Council v. Glickman, 82 F.3d 825, 830 (9th Cir.

1996). The problem here, in part, is that its examination led it

to the wrong result. The statutory structure does not support

the panel’s conclusion; nor does the statute as a whole. A

careful examination merely tells us that the statute contains

overlapping Titles. More significantly, the statute’s objec-

tives and policies not only do not support the holding the

panel reaches, but compel the opposite result. Nowhere in its

opinion does the panel suggest, nor could it, that any policy or

objective of the ADA argues for limiting any of its provi-

sions, including Title II, so as to exclude employment dis-

crimination. To the contrary, the policies and objectives of

the act were to eradicate all discrimination against the dis-

abled by public entities in every area, including employment

discrimination. It is a generous rather than a stingy reading of

Title II that furthers thse ADA’s policies and objectives.

App. 47

4. Summary

If anything is clear about this case, it is that the plain

meaning of the statute is not what the panel says it is. No

matter how apparent it may be that particular Statutory lan-

guage provides “X”, a court can determine, if it chooses, that

the statute does not provide “X”; and indeed, that “X” has

nothing whatever to do with it. It can do so by holding that

the statutory language plainly says what it plainly does not. A

court can announce that the word “dog” plainly means “cat” if

a panel so chooses, and a majority of eligible active judges

then elects not to take the case en banc.

That is what happened here: Congress, by plain language

(or “wording” as the panel insists on putting it) provided dis-

abled persons with a Title II remedy for discrimination in

public employment. The panel then held that the plain

meaning of the statute is that it did not, and a majority of our

active judges has now seen fit to allow the panel’s erroneous

pronouncement to stand.

What the panel and our court have done is of course not

unique. Courts have in the past chosen on various occasions

to read statutes as having precisely the Opposite meaning from

that dictated by the statutes’ plain language. Even the Con-

stitution has been the victim of this odd interpretive tech-

nique. The most prominent example is the perverse interpre-

tation given to the Eleventh Amendment in Hans v. Louisi-

ana, 134 U.S. 1, 14 (1890). There, the Court read the plain

language of the Amendment, which stated that the federal

courts lack jurisdiction to consider suits brought against a

state by “citizens of another state” as having almost precisely

the opposite meaning: that federal courts lack jurisdiction

over suits brought against a state by citizens of the same state.

The Court rejected the plaintiff s appeal to the plain language

of the amendment as “an attempt to strain the constitution and

the law to a construction never imagined or dreamed of.” Jus-

tice Bradley, writing for the majority, declined even to give

any policy justifications for the decision to ignore what he

App. 48

called “the letter” of the law, saying “it is enough for us to

declare” a contrary rule. 10 S. Ct. at 508. This ostensibly

“plain” meaning was reaffirmed by a divided Supreme Court

in 1987. See Welch v. Texas Dept. of Highways and Public

Transportation, 483 U.S. 468, 492 (1987) (declining to over-

rule Hans on the basis of stare decisis). Today, this contrarian

“construction” of the Eleventh Amendment’s plain language

lies at the heart of federalism’s recent resurgence. See Alden

v. Maine, 119 S. Ct. 2240, 1999 WL 412617, *13 (U.S. 1999)

(following Hans in declining to “adhere to the mere letter” of

the Eleventh Amendment).

Hans and other cases involving judicial failures to respect

the plain meaning of words contained in the Constitution or in

statutes do not, of course, excuse what our court does today.

To the contrary, this latest example should cause great con-

cern to those who volubly proclaim their fear that federal

judges do not demonstrate sufficient respect for the decisions

of other branches of government or for the Constitution’s

framers. Whether a congressionally granted right is invali-

dated under the guise of statutory construction or by reliance

on a Constitutional doctrine conjured up by the judiciary, the

result is the same; the will of the people has been improperly

frustrated.

B. Legislative History

The panel is compelled to rely on “plain language” that is

nowhere to be found in the statute because the legislative

history of Title Il overwhelmingly confirms that Congress did

indeed intend to ban employment discrimination in Title II. If

the statute were ambiguous - and that is the best that the panel

could legitimately hope to prove by its wording and structure

arguments - the legislative history would be dispositive. The

House Judiciary Committee Report states that “in the area of

employment, title I] incorporates” the regulations under the

Rehabilitation Act. H.R. Rep. No. 101-485(III) (1990). The

House Report also states that Title II is intended to prohibit

App. 49

forms of discrimination “identical” to those contained in Title

I - which deals exclusively with employment discrimination -

and that it is to “work in the same manner as section 504” of

the Rehabilitation Act, which also prohibits employment dis-

crimination. Jd. at 84. Likewise, the Senate Labor Commit-

tee Report states that employment discrimination is prohibited

by Title II: “The existence of non-disability related factors in

the rejection decisions does not immunize employers” mak-

ing adverse hiring determinations. S. Rep. No. 116, 10Ist

cong., Ist Sess., at 45 (1989). As the Eleventh Circuit ob-

served in Bledsoe, “extensive legislative commentary re-

garding the applicability of Title II to employment discrimi-

nation . . . is SO pervasive as to belie any contention that Title

II does not apply to employment actions.” 133 F.3d at 821.

The panel’s opinion never even acknowledges the exis-

tence of these authoritative Committee Reports and the clear

evidence of congressional intent. The panel insists instead

that the language and structure of the law unambiguously

makes clear that Title I] excludes “employment” discrimina-

tion from its scope. The reason the panel does not go beyond

this point is evident. Unless the panel can base its decision on

its argument that the plain language of the statute excludes

employment discrimination from the coverage afforded by

Title Il, the argument is over. If the ADA is “ambiguous,”

then in light of the legislative history, Title II must be held to

cover employment discrimination.

C. Chevron Deference

The panel is compelled to rely exclusively on its argument

that Title II plainly and unambiguously excludes discrimina-

tion in employment for another reason as well. If the statute

does not by its plain language compel exclusion of employ-

ment discrimination, and it is instead found to be ambiguous,

Chevron deference also requires that we hold that Title II

does indeed prohibit employment discrimination. Congress

delegated enforcement of Title II to the Department of Jus-

App. 50

tice, and directed it to promulgate regulations consistent with

the regulations implementing the Rehabilitation Act. 42

U.S.C. § 12134. Moreover, as the House Judiciary Commit-

tee Report states, the Department of Justice was directed to

specify the interpretation of the forms of prohibited discrimi-

nation where ambiguity existed and interpretation was re-

quired.

Unlike the other Titles in this Act, title I] does not list

all of the forms of discrimination that the title is in-

tended to prohibit. Thus, the purpose of this section is

to direct the Attorney General to issue regulations set-

ting forth the forms of discrimination prohibited. The

Committee intends that the regulations under Title II in-

corporate interpretations of the term discrimination set

forth in Titles I and III of the ADA to the extent that

they do not conflict with section 504 regulations.

H.R. Rep. No. 485(III), 101st Cong., 2d Sess., at 52 (1989).

This language was used in both the Judiciary and Education

Committee Reports.

The Department of Justice, acting pursuant to this clear

congressional command, issued regulations that straightfor-

wardly apply Title II to employment discrimination. 28

C.F.R. pt. 35, App. A (“Title II of the ADA applies to all ac-

tivities of public entities, including their employment prac-

tices.”); 28 C.F.R. § 35.140(a) (“No qualified individual with

a disability shall, on the basis of disability, be subjected to

discrimination in employment under any service, program, or

activity conducted by a public entity.”). If it is not plain from

the language, structure, and legislative history that Congress

intended to apply Title II to public employment, then, at the

very least, it is uncertain whether or not it intended to do so.

In such cases, the Department of Justice was authorized to fill

in the gaps. The Department's interpretation is neither arbi-

trary nor manifestly contrary to the statute. Instead, these

regulations faithfully adhere to Congress’s intent, are well

within the agency’s discretion, and are thus controlling.

App. 51

D. Conclusion

The plain language of the statute conclusively demon-

strates that, as every other circuit to have considered the issue

has concluded, Title II applies to employment discrimination.

Both major clauses of the provision independently proscribe

such discrimination. At the very least, the statute is ambigu-

ous, and in that event, both the unequivocal legislative history

and the uniform Department of Justice’s regulatory interpre-

tations, to which we must give deference, compel the conclu-

sion that Title II applies to employment discrimination. Un-

questionably, that is what Congress intended, and that is what

the other circuit courts have readily understood. Here, the

panel made a serious error of law in a case of great signifi-

cance, where uniformity is necessary. Its holding that the

plain language of Title II excludes employment discrimina-

tion is simply contrary to the applicable rules and precepts of

Statutory construction, as well as to all prior caselaw in the

circuit courts. For these reasons, I dissent.