Petition for Writ of Certiorari — Disabled Rights Action Committee v. Archon Corp.

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Supreme Court, U.S.

FILED

(YY O2 70 7 NOV -6 2002

QRMNGE OF THE OLEFK

No.

In the

Supreme Court of the United States

DISABLED RIGHTS ACTION COMMITTEE,

Petitioner,

ARCHON CORPORATION,

formerly Santa Fe Gaming Corporation, -

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UnrrTeD StaTes Court OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD F’. ARMKNECHT, III

Counsel of Record

Armknecht & Cowdell, PC

364 West 120 South

Lindon, Utah 84042

(801) 796-0901

Attorney for Petitioners

Curry & Tav.or @¢ (202) 393-4141 HTP com

QUESTION PRESENTED

A complaint was filed in United States District Court.

The complaint alleged a federal claim (a violation of Title III of

the Americans with Disabilities Act of 1990, or “ADA”), and

alleged no state law cause of action. The federal claim was the

subject of: (1) briefing before the District Court; (2) the

decision of the District Court; (3) briefing before the Court of

Appeals; and (4) oral argument before the Court of Appeals.

A state law cause of action was not mentioned at any point in

the pleading, briefing, or argument of the case. In the Court of

Appeals’ disposition affirming the District Court's grant of

dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court of Appeals did not address the issue

presented for review (the scope of remedies available

regarding a violation of Title III of the ADA). Instead, the

disposition of the Court of Appeals was limited to a

pronouncement that relief for a particular state law claim

(common law “unjust enrichment”) was not available under

_ the facts alleged in the complaint.

The question presented is whether a Court of Appeals

may affirm dismissal of the case by ignoring the federal issue

presented for review and, accordingly, by ignoring that court's

duty to hear and decide the case.

PARTIES TO THE PROCEEDING

Petitioner

Petitioner is the Disabled Rights Action Committee, a

Utah nonprofi. corporation having members residing in Las

Vegas, Nevada. Plaintiff is a member-based organization, and

has no stock nor any corporate affiliations. The Disabled

Rights Action Committee was one of the Plaintiffs in the

District Court, and one of the Appellants in the Ninth Circuit

Court of Appeals.

The other Plaintiff in the District Court, and Appellant

in the Ninth Circuit Court of Appeals, was an individual

member of the Disabled Rights Action Committee, Ronald Ray

Smith. Mr. Smith is now deceased.

Respondent

Respondent, Archon Corporation, is a publicly traded

Nevada corporation, which was formerly known as “Santa Fe

Gaming Corporation.” Archon Corporation (under the name

“Santa Fe Gaming Corporation”) was the Defendant in the

District Court, and was the Appellee in the Ninth Circuit

Court of Appeals.

iil

TABLE OF CONTENTS

Questions Presented .......... 0 ee eee rere eee eect eeeees i

Parties to the Proceeding ..........:seeeeeeeeeeeeeees ii

Table of Contents .........c cc cece cee c cece vscccccces iii

Table of Cited Authorities ............ cee e eee renee iv

Table of Appendices ........ 00s e eee cece ee ee ee eeees Vili

Petition for a Writ of Certiorari .......... cess ee eens 1

Opinions Below ........... eee cece ee eee eee en eae 1

TION icc cee eer ccs ees eccneueseessnssennces 1

Statutory Provisions Involved ...........:+eeeeeeeeeees 1

Statement of the Case ..........cccccccceccesccesccens 2

Reasons for Granting the Writ ............ 66s e eee eee 6

Ca ee =F Pa aN pan oe ee 22

TABLE OF CITED AUTHORITIES

Cases

Adarand Constructors, Inc. v. Slater,

528 U.S. 216 (2000) ....... cree OY PES 20

Alexander v. Unification Church of America,

634 F.2d 6735 (2nd Cir. 1980) .... 2.0... cccceveeess 7

Anastasoff v. United States, 223 F.3d 898,

vacated as moot on reh’g en banc,

yo Pg | Bere 18

Bell v. Hood,

ee Se CIEE hd a pode ad¥ da eeeesevaens 8-10, 22

Buckhannon Board & Care Home, Inc. v.

West Virginia Dept. of Health and Human Resources,

SAE AA OPE LEED 6c edsvececcsceseeneseen 14,15

Conley v. Gibson,

Sg eee er ere rere rere 21

Dandridge v. Williams,

Ae. 0), feeatec wales 13

Disabled Rights Action Committee v.

Fremont Street Experience Limited Liability Company,

44 Fed.Appx. 100 (9th Cir. 2002), petition for cert.

filed Oct. 21, 2002 (No. 02-625) .............. 14, 20

Fischer v. SJB-P.D. Inc.,

yi gree Le ae rn 3,4

Great-West Life & Annuity Ins. Co. v. Knudson,

Pe NPee PE 63 4.860 kv ees badcdvewcteress 15

Hart v. Massanani,

266 F.3d 1155 (Sth Cir. 2001) ........ceeees 17, 18

Havens Realty Corp. v. Coleman,

Ge GATE Sho s cuveteusiasevs Seabee lon 20

Hishon v. King & Spalding,

Se Shy Fs Ko ke ns cd nke de pcbacenen 8

Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.,

tk ee ee fe err errr 9

Hormel v. Helvering,

FER WAR EIOOED cncnceecvnriscesectnepetnes 10

Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit,

Peter TET TTT TLC Tee 2

Long v. Coast Resorts, Inc.,

BET EIA FORGE, FO) ni ccc vccccccvnsenas 19

Lutcher & Moore Lumber Co. v. Knight,

yey eee og eer rrr Ter rrers 10-13, 16

Lutcher & Moore Lumber Co. v. Knight,

156 Fed. 1022 (5th Cir. 1907) ..... penbeveene pees 11

McCray v. New York,

SO RG EEUU bod eek edeedineneesnavnecees 17

Menkowitz v. Pottstown Memorial Medical Center,

1546 F.5d 133 Ged Cir. 2998) . 0. cccniscvcgescsvces 7

Mortenson v. Rock Springs Vista Development Corp.,

8 Fed.Appx. 837 (9th Cir. 2001)

petition for cert. denied, 122 S.Ct. 542 (2001) ....... 19

Oregon Laborers-Employees Health & Welfare Trust Fund v.

Philip Morris, 185 F.3d 957 (9th Cir. 1999) ....... 5, 6

Porter v. Warner Holding Co.,

EP A PLEO 8660 60d Kee seieneere SMbneeaA 3

Proctor v. Warden,

oe eo a er are 13

Reich v. Continental Casualty Co.,

Fe ee FO: SPT i sc cxsocegsacrnevenes 6

SEC v. First Pacific Bancorp,

DEE Fae BORO TG. BONE) vic ainocevesoveees 7

Singleton v. Wulff,

Ee SNE ck utVebeaxaernehcnediedvers 10

Skidmore v. Swift & Co.,

Be CALE POEE ke bn nV se beer esd vesecs canes 20

Smith v. United States,

eS UE MERE 04-05 6's honcho kuaanbees Nk 16

Swierkiewicz v. Sorema N.A.,

Se te PE 6 b5 che vhs de andeveccees y ys

Terrell v. Morris,

SIO UD LOGS occ ivs ceuicecevcdevesccsns 13

The Fair v. Kohler Die Co.,

| SAO UD. Ze CRGESD ccc ecvcvioversesvecesssseevas 9

Tennessee v. Union & Planters' Bank,

152 US. GGT ED). onc ccccccctssssccecescsenns 9

United States v. Concentrated Phosphate Export Assn., Inc.,

FOS IR TFG TN hte cec denser Gscaeeecaneses 20

United States v. Mead Corp., ;

Se UF SEE ho cs eee ceedeceesebensxeus 20

Statutes

(Atk tay | MATT rere ee 15

Be UE. BEE) ov conc racevecisusees eeneeeneneeeeea 1

Be I ED 5 eco v Gas den WOR cane en eeeeones 1-2, 12

gk ok rr erry perre bee bes 15

GZ UGA, GaRPOO 0 vc evtvcgedcccevansasavatewes 3,4

Gs Pe has kc uel er euees benuaes eaevepeein 15

SZ UIGA COREE cc viesesccevacdst me pare eke cares 20

GE UA, GPP U, Sav scuekcvestcteseseenssueaeees 15

G2 UB, SIRSMID cca ee dencceccsccnsqccasvaaue 15

CE UDA. © RES, 05 0 09 cain dnnd cut sxcdeassanaes ea 15

Title III of the Americans with Disabilities Act of 1990

(65 USK, G IZSe GEOR) vcs cesvecsscccuss passim

G2 USA. SE vas Whenecev nvcenecchagennaes 3,4

Circuit Courts of Appeals Act of 1891,

Se SEED a cco cre herceh Cocca eeees 11, 12

Rules of Procedure

Rule 8(a), Federal Rules of Civil Procedure ............. 8

Rule 8(e)(1), Federal Rules of Civil Procedure ........... 8

Rule 8(f), Federal Rules of Civil Procedure ............ 8

Rule 12(b)(6), Federal Rule of Civil Procedure ........... 3

Vii

Rule 41(a)(2), Federal Rules of Civil Procedure .......... 4

PRE GOREN CUED. cn wine cecccussastaeesescncers 16

Other Authorities

1 D. DOBBS, LAW OF REMEDIES (2d ed. 1993) ............. 6

Alex Kozinski & Stephen Reinhardt,

Please Don’t Cite This! Why We Don’t Allow

Citation to Unpublished Dispositions,

Al EA FUMIE Soe scedinvcercnccccacone 18

Unpublished Judicial Opinions:

Hearings Before the Subcomm. on Courts,

the Internet, and Intellectual Property of the

House Comm. on the Judiciary, 107th Cong.,

2nd Sess. 62 (June 27, 2002) ..............05. 19, 21

Vill

TABLE OF APPENDICES

Appendix A

Memorandum Decision of the United States

Court of Appeals for the Ninth Circuit,

Sf rere rrr Terr Ta

Appendix B

Order on Motion to Dismiss of the United

States District Court for the District of Nevada,

, fo 3 eee 4a

Appendix C

Order on Petitions for Rehearing of the United

States Court of Appeals for the Ninth Circuit,

PUN FUMES, FIRS oie ccivcncscccseccoences 8a

Appendix D

Complaint in the United States District Court

for the District of Nevada Order,

EE ek do oéeeuedhbeus bess maes 10a

Appendix E

Text of Reply Brief filed in the United States

Court of Appeals for the Ninth Circuit,

Pe PE A 6 vc anetu8eneele0ss averse l6a

PETITION FOR A WRIT OF CERTIORARI

The Disabled Rights Action Committee respectfully

petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The Memorandum decision of the Ninth Circuit

(Appendix (“App.”) A at la-3a) is designated as

“unpublished” (but is available at 2002 U.S. App. LEXIS 4803;

and 32 Fed. Appx. 820). The opinion of the District Court

(App. B at 4a-7a) is also unpublished (but is } available at 2000

U.S. Dist. LEXIS 22119).

JURISDICTION

The judgment of the Ninth Circuit Court of Appeals

was entered on March 20, 2002. App. A at la. A timely

Petition for Rehearing and Rehearing En Banc was filed and

those petitions were denied on August 8, 2002. App. C at 8a-

9a.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The case, as it was presented to the Ninth Circuit,

sought review of the District Court’s construction of certain

statutory provisions regarding the enforcement, by citizen

suits, of Title III of the Americans with Disabilities Act of 1990

(“ADA”). The question presented to this Court in this Petition,

however, involves 28 U.S.C. § 1291, which provides that: “The

courts of appeals . . . shall have jurisdiction of appeals from all

a Ge

final decisions of the district courts of the United States.”

STATEMENT OF THE CASE

On June 19, 2000, the Disabled Rights Action

Committee (along with Mr. Ronald Ray Smith, one of its

members residing in Las Vegas) (collectively, “Disabled

Rights”) filed a Complaint against Santa Fe Gaming

Corporation’ (“Santa Fe”) in the United States District Court

for the District of Nevada. The Complaint alleged’ that

Disabled Rights’ members were injured (in the form of injuries

to dignity interests) by Santa Fe’s ongoing violation of Title III

of the ADA (in the form of its operation of an inaccessible

shuttle bus system from the Santa Fe Hotel & Casino, a

property which was owned by Santa Fe). App. D at 13a.

As a remedy for the violation of Title III of the ADA

(which was mistakenly presented as a separate cause of

action), the Complaint sought an “Accounting for Unjust

Enrichment” based upon “the full application of the principles

of equity.” Specifically, Disabled Rights alleged that Santa Fe’s-

“employment of a shuttle bus system confers an economic

benefit to Defendants, and Defendants’ delay in retrofitting

[an inaccessible bus] gives Defendants the associated time

value of money.” App. D at 14a. Significantly, Disabled

Rights sought an order requiring Santa Fe to “disgorge . . .

economic gain reaped by ... illegal conduct.” App. D at 14a.

: On May 11, 2001, Santa Fe Gaming Corporation

changed its name to “ Archon Corporation.”

, In considering motions to dismiss, courts “must accept

as true all of the factual allegations contained in the complaint.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n 1 (2002) (citing Leatherman

v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,

164 (1993)).

ES EE ae

Clearly, “disgorgement” was requested and the Complaint did

not make out a claim for “unjust enrichment” in the form of an

implied in fact contract under state law.

On September 15, 2000, Santa Fe moved for dismissal

of the claim for an “accounting for unjust enrichment” under

Federal Rule of Civil Procedure 12(b)(6). The basis for Santa

Fe’s motion was that the claim did not constitute a “cognizable

legal theory” in light of the Ninth Circuit's dicta in Fischer v.

SJB-P.D. Inc., 215 F.3d 1115, 1120 (9th Cir. 2000) stating that 42

U.S.C. § 2000a-3(a) (which is incorporated by reference into the

private enforcement provision of Title III of the Americans

with Disabilities Act, 42 U.S.C. § 12188(a)(1)) does not provide

for “monetary relief.” Santa Fe’s motion did not in any way seek

to characterize the Complaint as making out a claim for “unjust

enrichment” in the form of an implied in fact contract under state

law.

On October 2, 2000, Disabled Rights filed an opposition

to the motion to dismiss. Disabled Rights noted the high

standard set for motions to dismiss, and that “[u]nless

. otherwise provided by statute, all the inherent equitable

powers of the District Court are available for the proper and

complete exercise of [its] jurisdiction.” Porter v. Warner

Holding Co.,328 U.S. 395, 398 (1946). Disabled Rights’ opposition

did not in any way seek to characterize the Complaint as making out

a claim for “unjust enrichment” in the form of an implied in fact

contract under state law.

On October 12, 2000, Santa Fe filed its reply in support

of the motion to dismiss.’ That reply sought to equate the

4 At page 5 of its reply, Santa Fe notified the District

Court of an asset sale that took place on or about October 2, 2000,

whereby the subject buses “ previously used at the Santa Fe Hotel &

Casino became the property of Station Casinos, the new owner of the

equitable monetary relief that was sought with damages, but

Santa Fe’s reply did not in any way seek to characterize the

Complaint as making out a claim for “unjust enrichment” in the

form of an implied in fact contract under state law.

On December 15, 2000, the district court entered its

Order granting Defendant's Motion to Dismiss Cause of

Action for Unjust Enrichment. App. B at 4a. Stating that

disgorgement of wrongful gains constitutes a form of

“monetary relief” (without distinguishing between equitable

and legal monetary relief), the District Court relied solely upon

dicta in Fischer v. SJB-P.D. Inc., supra at1120, which states that

42 U.S.C. § 2000a-3(a) does not provide for “monetary relief.”

App. B at 6a-7a. The District Court's decision clearly recognized

that the “disgorgement” remedy was at issue, and did not in any

way characterize the Complaint as making out a claim for “unjust

enrichment” in the form of an implied in fact contract under state

law.

On February 28, 2001, the Complaint of Disabled

Rights was dismissed and final judgment was entered in the

case. The Complaint was dismissed “for failure to state a

claim upon which relief can be granted and for mootness.”*

On appeal, Disabled Rights noted: (1) that 42 U.S.C. §

12188(a)(1) does not preclude equitable forms of monetary

relief (App. E at 19a-22a); (2) that 42 U.S.C. § 2000a-3(a) does

Santa Fe Hotel & Casino.” The asset sale thus rendered moot any

prospective injunctive relief that might have been ordered in the case..

, The mootness of any claim for prospective injunctive

relief against Santa Fe was attributable to the asset sale of October 2, 2000.

Dismissal of that claim was according to Rule 41(a)(2) of the Federal Rules

of Civil Procedure, and was pursuant to Disabled Rights’ concession that

mootness was applicable to any claim for prospective injunctive relief

against Santa Fe.

not restrict equitable jurisdiction (App. E at 23a-28a); (3) that

the disgorgement remedy is consonant with the purpose of the

ADA (App. E at 28a-30a); (4) that the disgorgement remedy is

consonant with enforcement through private attorneys general

(App. E at 30a-31a); and (5) that the disgorgement remedy

would give flexibility to district courts to remove incentives for

continuing violations (App. E at 31a-33a). Most significantly,

Disabled Rights distinguished “disgorgement” (the purpose of

which is “to deprive a person of ‘ill-gotten gains’ and prevent

unjust enrichment”) from “damages” which are to “make

whole” aggrieved parties, see App. E at 33a-34a, and Disabled

Rights did not in any way seek to characterize the Complaint as

making out a claim for “unjust enrichment” in the form of an

implied in fact contract under state law.

On February 12, 2002, at oral argument before a panel

of the Ninth Circuit, neither of the parties nor any member of the

panel addressed the issue submitted for review in the context of a

claim for “unjust enrichment” in the form of an implied in fact

contract under state law.

On March 20, 2002, the Ninth Circuit’s panel issued its

Memorandum decision affirming the District Court's

dismissal. The decision stated that:

Plaintiffs have not stated a cognizable claim for unjust

enrichment. They do not allege that defendant Santa Fe

gained profits from its alleged ADA violation that

properly belonged to the plaintiffs. See, e.g., Oregon

Laborers-Employees Health & Welfare Trust Fund v. Philip

Morris, 185 F.3d 957, 968 (9th Cir. 1999) (stating that "to

state a cause of action for unjust enrichment, plaintiffs

must show that they conferred a '‘benefit' on

defendants and that it would be unjust for defendants

to retain that benefit").

App. A at 2a.

Thus, the Ninth Circuit ignored the federal claim that

was presented, and treated the Complaint as setting forth a state

law claim’ for “unjust enrichment” in the form of an implied in fact

contract.

Disabled Rights timely petitioned the Ninth Circuit for

rehearing and rehearing en banc, which petitions for rehearing

were denied on August 8, 2002. App. C at 8a-9a.

REASONS FOR GRANTING THE WRIT -

I. THE DECISION OF THE NINTH CIRCUIT COURT OF

APPEALS CONFLICTS WITH DECISIONS OF OTHER

CIRCUITS.

The Ninth Circuit's decision is based upon a reading of

the Complaint as making out a claim for “unjust enrichment”

under state law. What was intended by Disabled Rights (and

what was understood by the litigants and the District Court)

was that Disabled Rights was seeking disgorgement as a

remedy for a violation of Title III of the ADA. The only facts

needed to be plead for the application of the remedy of the

disgorgement of wrongful gains is for there to be (1) a gain®

: Significantly, the sentence from Oregon Laborers-

Employees Health & Welfare Trust Fund v. Philip Morris, 185 F.3d 957 (9th

Cir. 1999) that was quoted by the Ninth Circuit in the decision below

began with the (omitted) words: “Under Oregon law,” and the quoted

language was under the heading “State Law Claims.” Id. at 968.

Or an avoidance of a loss, which is termed “negative

unjust enrichment.” See, Reich v. Continental Casualty Co., 33 F.3d 754, 756

(7th Cir. 1994) (citing 1 D. DoBBS, LAW OF REMEDIES § 509, pp. 802-03 (2d

which is (2) wrongful.’ These facts were plead in the

Complaint. App. D at 13a-14a.

Courts of appeals other than the Ninth Circuit have

found that substantial justice in construing pleadings is

achieved by ignoring missteps in terminology.’ See, e¢.g.,

Alexander v. Unification Church of America, 634 F.2d 673, 678

(2nd Cir. 1980) (“It is not material, under the liberal rules of

federal pleading, that Count One was mislabeled by

appellants’ counsel.” ); Menkowitz v. Pottstown Memorial Medical

Center, 154 F.3d 113, 124 (3rd Cir. 1998) (dismissal of ADA

claim due to “inartful pleading” is “the precise sort of pleading

as a highly developed form of art that the federal rules sought

to abandon.”)

A recent unanimous decision of this Court shows that

the approach taken by the Second Circuit and the Third Circuit

is more consistent with the Federal Rules of Civil Procedure,

ed. 1993).

, Whether the wrongful gain is to actually be disgorged

(and to whom it is disgorged) is a matter for the district court's discretion.

Disabled Rights requested, in the Complaint, that the District Court

exercise that discretion for the direct benefit of Disabled Rights, but (as is

plain from the pleadings, see App. E at 33a (citing S.E.C. v. First Pacific

Bancorp, 142 F.3d 1186, 1192 (9" Cir. 1998))), Disabled Rights in no way

sought to restrict the District Court's discretion.

: The labeling of the remedy as “unjust enrichment”

(instead of as “disgorgement”) would not appear to even be a “misstep”

under earlier Ninth Circuit precedent. In SEC v. First Pacific Bancorp, 142

F.3d 1186 (9th Cir. 1998), the Ninth Circuit recognized that the term

“unjust enrichment” is not limited in application to implied in fact

contracts. See, id., at 1192-93 (in enforcement of securities laws,

“scholastic” distinction between “restitution” and “disgorgement” is of

no consequence where wrongdoers were found to have been “unjustly

enriched.”)

8 ;

especially under “Rule 8(a)’s simplified pleading standard”

and under the “[o]ther provisions of the Federal Rules of Civil

Procedure [that] are inextricably linked to Rule 8(a)’s

simplified notice pleading standard.” Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 513 (2002). In particular, “Rule 8(e)(1)

states that ‘[n]o technical forms of pleading or motions are

required,’ and Rule 8(f) provides that ‘[a]ll pleadings shall be

so construed as to do substantial justice.” Swierkiewicz v.

Sorema N.A., supra at 513-14.

Even if the Ninth Circuit was correct in requiring a

technical form of pleading for the disgorgement remedy

sought by Disabled Rights, the proper course of action for the

Ninth Circuit was not to simply affirm the District Court's

dismissal. Given “the Federal Rules’ simplified standard for

pleading, ‘[a] court may dismiss a complaint only if it is clear

that no relief could be granted under any set of facts that could

be proved consistent with the allegations.” Swierkiewicz v.

Sorema N.A., supra at 514, quoting Hishon v. King & Spalding,

467 U.S. 69, 73 (1984). Clearly, a technicality in semantics

could easily be remedied by amending the Complaint, and the

Ninth Circuit, in adopting a technical form of pleading, should

have remanded the case to the District Court for entry of an

appropriate order granting Disabled Rights leave to amend in

order that Disabled Rights would have an opportunity to meet

the form of pleading required by the Ninth Circuit.

Il. THE DECISION OF THE NINTH CIRCUIT COURT OF

APPEALS CONFLICTS WITH RELEVANT DECISIONS OF

THIS COURT.

A. This Court has Held that Plaintiffs Control

their Complaints.

In Bell v. Hood,’ 327 U.S. 678 (1946), the Court

considered the argument that a district court’s dismissal of a

civil rights complaint for want of federal jurisdiction was

proper where “the complaint states a cause of action for the

common law tort of trespass made actionable by state law and

that it therefore does not raise questions arising ‘under the

Constitution or laws of the United States." Bell v. Hood, 327

U.S. at 680-81. The Court rejected that argument, stating that:

Whether or not the complaint as drafted states a

common law action in trespass made actionable by

state law, it is clear from the way it was drawn that

petitioners seek recovery squarely on the ground that

respondents violated the Fourth and Fifth

Amendments. . . Before deciding that there is no

jurisdiction, the District Court must look to the way the

complaint is drawn to see if it is drawn so as to claim

a right to recover under the Constitution and laws of

the United States. For to that extent "the party who

brings a suit is master to decide what law he will rely

upon and . .. does determine whether he will bring a

‘suit arising under' the . . . [Constitution or laws] of the

United States by his declaration or bill."

Bell v. Hood, 327 U.S. at 681 (quoting The Fair v. Kohler Die Co.,

228 U.S. 22, 25 (1913)).

This Court has held that whether a complaint states a

claim “arising under” federal law must “be ascertained by the

legal construction of [the plaintiff's] allegations, and not by the

effect attributed to those allegations by the adverse party.”

Tennessee v. Union & Planters' Bank, 152 U.S. 454, 460 (1894)).

Most recently, this point of law was reiterated by this Court in

Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535

US.__, ___, 122 S.Ct. 1889, 1894-1894 (2002).

In the decision below, the Ninth Circuit,without being

requested to do so by any litigant, re-characterized the Complaint

as seeking relief under an implied in fact contract theory of

“unjust enrichment” (a state law claim)instead of as preventive

relief to enforce Title III of the ADA. Thus, the Ninth Circuit's

decision effects a more egregious judicial “redraft” of a

complaint than that which was rejected by this Court in Bell v.

Hood (where the lower court characterized the complaint as

making out a state law claim at the urging of the defendant). The

Ninth Circuit’s sua sponte redraft of the Complaint is plainly

contrary to this Court's decisions in Hormel v. Helvering, 312

U.S. 552, 556 (1941) (“it is . . . essential . . . that litigants may

not be surprised on appeal by final decision there of issues

upon which they have had no opportunity to introduce

evidence") and Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(“even assuming that there is no such evidence, [litigants]

should have the opportunity to present whatever legal

arguments [they] may have.”)

The issue that was determinative of the Ninth Circuit's

decision (state law “unjust enrichinent” ) was never argued by

Santa Fe nor by Disabled Rights and was never suggested by

either the District Court in its Order on the Motion to Dismiss

or by the Ninth Circuit at oral argument. Before the Ninth

Circuit filed its Memorandum decision, there was absolutely

no indication that the Complaint would ever be construed as

making out a state law cause of action (let alone as only

making out a state law cause of action). Clearly, the Ninth

Circuit's action was contrary to well-established precedent of

this Court.

B. This Court has Held that Circuit Courts of

Appeals have a Duty to Decide Cases

Presented to Them for Review.

In Lutcher & Moore Lumber Co. v. Knight, 217 U.S. 257

(1910), this Court was presented with a case that was very

similar to the case presented here. In Lutcher & Moore, the

parties had tried a case based upona contract theory, and(after

a jury trial) a decision had been entered for the plaintiff. On

appeal, the defendant sought review by the Fifth Circuit of

“the many questions raised in the trial court.” Id. at 264.

The Fifth Circuit affirmed the judgment of the trial

court by way of a per curium opinion which, in its entirety,

stated:

‘By the court: After a thorough and attentive

consideration of the questions raised on this writ, we

are of opinion that the matters of defense relied upon

by plaintiffs in error on the trial below, in so far as they

were not given consideration, were of an equitable

nature, not cognizable in a court of law. We therefore

affirm the judgment of the circuit court.'

Id. at 264, quoting Lutcher & Moore Lumber Co. v. Knight,

84 C. C. A. 679, 156 Fed. 1022 (5th Cir. 1907).

The Supreme Court noted that “the effect of the action

of the circuit court of appeals was substantially to deny to [the

defendants] their day in court; in other words, was equivalent

to condemning them without affording them an opportunity

to be heard.”” Lutcher & Moore Lumber Co. v. Knight, 217 US.

at 267. The Court then observed that:

The great purpose of the [Circuit Courts of Appeals]

act of 1891 [26 Stat. at L. 826, chap. 517, U.S. Comp.

Stat. 1901, p. 488], however, to which all its provisions

are subservient, is to distribute the jurisdiction of the

° In the case submitted for review in this Petition, the __

Ninth Circuit did not remand the case to the District Court for entry of an

order granting leave to amend. The effect of the action of the Ninth

Circuit has been to effectively deny Disabled Rights its day in court.

courts of the United States, and thus to relieve the

docket of this court by casting upon the circuit courts

of appeal the duty of finally deciding the cases over which

the jurisdiction of those courts is by the act made final. The

power to issue certiorari in accordance with the act, in

its essence, is only a means to the end that this imperative

and responsible duty may be adequately performed.

Lutcher & Moore Lumber Co. v. Knight, 217 U.S. at 267-268.

The Court held that “the judgment of the circuit court

of appeals must be reversed, and the case be remanded to that

court, to the end that the duty to hear and decide it may be

performed,” Id. at 268, and noted that “To hold otherwise

would be repugnant to the plain intent of the act of 1891, since

it would recognize a practice by which the concededly

essential purpose of the act of 1891 could be disregarded or be

made practically of no avail.” Id.

The provision of the Circuit Courts of Appeals Act of

1891 that this Court found so essential was Section 6, which

states “[t]hat the circuit courts of appeals established by this

act shall exercise appellate jurisdiction to review by appeal or

by writ of error final decision in the district court . . . and the

judgments or decrees of the circuit courts of appeals shall be

final.” 26 Stat. at L. 826, 828. While subsequent acts of

Congress have superceded the Circuit Courts of Appeals Act

of 1891, the delegation to the circuit courts of appeals of “the

duty of finally deciding the cases over which the jurisdiction of

those courts is... made final” has not been extinguished: the

circuit courts of appeals are still given final jurisdiction over

cases, see, 28 U.S.C. § 1291 (“The courts of appeals . . . shall

have jurisdiction of appeals from all final decisions of the

district courts of the United States.”), and the circuit courts of

appeals are still obligated to decide the cases presented to

them for review.

Furthermore, cases where this Court has recognized the

duty of circuit courts of appeals to address the issues

presented to them for review are not confined to old cases

such as Lutcher & Moore, supra. See, e.g., Terrell v. Morris, 493

US. 1,3 (1989) (“The Sixth Circuit, by its unpublished opinion,

affirmed a decision that the District Court never made, and so

never reviewed that court's actual decision. Review of the. .

. issues should be undertaken based on a correct formulation

~ of the ruling in the District Court”);° Proctor v. Warden, 435

U.S. 559, 560 (1978) (Noting that the per curiam order of the

circuit court of appeals had “nothing whatsoever to do with

the petitioner's case. He had filed a petition for a writ of

habeas corpus, not a civil rights action under 42 U.S.C. § 1983.

He had sought relief in a federal court in Maryland, not one in

North Carolina” and that the only case cited by the circuit

court of appeals in its per curium order was “wholly unrelated

to the petitioner's case.”); Dandridge v. Williams, 397 U.S. 471,

476 n.6 (1970) (“when attention has been focused on other

issues, or when the court from which a case comes has

expressed no views on a controlling question, it may be

appropriate to remand the case rather than deal with the

merits of that question in this Court.”).

” The dissent in Terrell v. Morris considered the issue-

presented to the Court to be “simply a case of an appellate court affirming

a district court's dismissal on a legal basis different from that adopted by

the district court - a not uncommon practice.” Terrell v. Morris, 493 U.S. 1,

4 (1989) (REHNQUIST, C.J., dissenting). In this case, however, the Ninth

Circuit affirmed the District Court's dismissal based on the inapplicability

of the allegations of the Complaint to a cause of action that was never

submitted for review while ignoring the issue that was submitted for review.

Hopefully, the Ninth Circuit's course of action in this case is a very

uncommon practice. It may be, however, that courts of appeals commonly

avoid their duty to decide the cases presented to them for review (by

judicial “redrafting” of complaints or by other means). If so, then the

importance of granting the writ of certiorari to exercise this Court's

supervisory power is indicated all the more.

III. THE FEDERAL QUESTION PRESENTED IS IMPORTANT.

A. The Issue That Was Presented to the Ninth

Circuit for Review is Important.

In Buckhannon Board & Care Home, Inc. v. West Virginia

Dept. of Health and Human Resources, 532 U.S. 598 (2001), this

Court determined that the “catalyst” theory for awards of

attorneys fees in civil rights lawsuits (including suits brought

under Title III of the ADA) was not a permissible rationale

under the “ prevailing party” language of the relevant statutes.

Id. at 607-608.

In the wake of Buckhannon, the enforcement of civil

rights laws is in a state of disarray as some defendants have,

particularly in cases involving Title III of the ADA,” been

encouraged to “ unilaterally moot[] anaction before judgmentin

an effort to avoid attorneys fees” which this Court foresaw as

“materializ[ing] in claims for equitable relief.” Id. at 608-609.

Indeed, in ADA cases in particular (where plaintiffs are more

likely to die during the often long course of litigation), an

effort by a defendant to “unilaterally moot” a case may not

~ In another case that has been presented by Disabled

Rights to this Court for a writ of certiorari, the Ninth Circuit has affirmed

a district court's finding moot a claim under Title III of the ADA alleging

ongoing discriminatory conduct. See Disabled Rights Action Committee v.

Fremont Street Experience Limited Liability Company, 44 Fed.Appx. 100 (9th |

Cir. 2002), petition for cert. filed Oct. 21, 2002 (No. 02-625). The

determination of mootness was based upon a heretofore unrecognized

power of the District Courts to disregard, as “late filed,” affidavits

submitted in opposition to a motion for summary judgment over 20 days

before the hearing on the motion for summary judgment (the rationale for

the “late filed” characterization being that the affidavit provided evidence

of instances of an ongoing violation that were not identified in the

complaint). Id.

even be needed.’* A disgorgement remedy, while not

providing “damages,” can nevertheless foreclose what this

Court clearly recognized, in Buckhannon, as a potential

problem inherent in the abolition of the “catalyst theory” for

awards of attorneys fees.

Moreover, the matter submitted to the Ninth Circuit for

review involved language (“preventive relief, including an

application for a permanent or temporary injunction, or other

order”) that is identical to language found in no fewer than five

other federal remedial schemes." Thus, the issue that the

Ninth Circuit aggressively avoided has implications beyond

the private enforcement of Title III of the ADA. Indeed, the

issue presented to the Ninth Circuit (the availability of

disgorgement under a district court’s inherent equitable

power) is closely related to an issue (the distinction between

legal and equitable restitution) that this Court found worthy

of addressing this year. See, Great-West Life & Annuity Ins. Co.

v. Knudson, 534 U.S. 204 (2002). Clearly, these are issues of

importance that merit this Court's attention.

Finally, the Ninth Circuit's decision is at odds with the

ADA’s purpose of providing “a clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). If

circuit courts of appeals will not even hear and decide an

appeal of the dismissal of a claim under Title III of the ADA,

“i In fact, one of the litigants in this case, Mr. Smith, died

while the Ninth Circuit was deliberating the petitions for rehearing.

” See, ¢.g., 7 U.S.C. § 2305(b)(agricultural unfair trade

practices), 42 U.S.C. § 1971 (voting rights), 42 U.S.C. § 2000a-5 (Title II of

Civil Rights Act of 1964, enforcement by the Attorney General), 42 U.S.C.

§ 3614(c)(1)(fair housing enforcement by private citizens), and 42 U.S.C. §

3614(d)(1)(A)(fair housing enforcement by the Attorney General).

then the ADA’s mandate cannot be heeded.

B. The Duty of the Circuit Courts of Appeals to

Hear and Decide Cases Presented for Review

is of Critical Importance.

No matter the importance that may be attributed to the

matter presented for review to the Ninth Circuit, Disabled

Rights submits that the Ninth Circuit's failure to decide the case

is of even greater significance.

Indeed, while the reasons that moved this Court to

issue a GVR order in Lutcher & Moore Lumber Co. v. Knight,

supra, are present on this case, the imperative duty of the

circuit courts of appeals to hear and decide the cases submitted

to them is arguably of greater significance in 2002 than it was

in 1910. As the number of federal lawsuits has increased

(occasioned by both the expansion of the federal judiciary’s

role in the protection of rights and by the increase in

population of the United States), the likelihood of review by

this Court has diminished. Furthermore, many circuit courts

today have court rules (e.g., Ninth Cir. Rule 36-3) that enable

circuit courts to designate certain opinions as unpublished

decisions, which designation effectively consigns the decision

to precedential oblivion. Ideally, of course, “[nJonpublication

must not be a convenient means to avoid review.” Smith v.

United States, 502 U.S. 1017, 1020 n. (1991) (BLACKMUN, J.,

dissenting). In practice, however, nonpublication does

diminish the likelihood that this Court will review a decision

of a circuit court of appeals. Thus, in 2002, the circuit courts’

“duty to hear and decide” the cases presented for their review

is of greater importance than in 1910 as the dispositions of the

circuit courts of appeals have become more “final” (in a

practical sense) over the years.

The importance of the circuit courts’ hearing and

deciding the cases that are properly presented to them for

review extends beyond the interests of the litigants. This

Court typically relies on the circuit courts to study issues prior

to this Court's addressing the issues. See, McCray v. New York,

461 U.S. 961, 963 (1983) (STEVENS, J., respecting denial of

petitions for writs of certiorari) (“[I]t is a sound exercise of

discretion for the Court to allow [other courts] to serve as

laboratories in which the issue receives further study before it

is addressed by this Court.”). If the circuit courts do not

decide the cases of first impression (such as the case below)

which are properly presented for review, then it is quite

possible that important questions of law will remain

unanswered for extended periods or, if circuit courts of

appeals steadfastly and consistently refuse to decide on the

issues, will never be answered at all.

IV. THE NINTH CIRCUIT'S FAILURE TO EXERCISE ITS DUTY

TO DECIDE THE CASE PRESENTED TO IT CALLS FOR AN

EXERCISE OF THIS COURT’S SUPERVISORY POWER.

The Ninth Circuit, in affirming the constitutionality of

its rule prohibiting citation to unpublished dispositions, has

recently opined that “[s]ufficient restrictions on judicial

decisionmaking exist to allay fears of irresponsible and

unaccountable practices such as ‘burying’ inconvenient

decisions through nonpublication.” Hart v. Massanari, 266

F.3d 1155, 1177 n.35 (9th Cir. 2001). Certainly, some

procedures within circuits (such as the petition for an en banc

rehearing which Disabled Rights made to the Ninth Circuit)

provide some restrictions on judicial decisionmaking, but this

case presents a clear example of the insufficiency of those

restrictions.

Over the past two years,'* there has been considerable

interest in the constitutionality of unpublished opinions. On

June 27, 2002, a hearing was held on “Unpublished Judicial

Opinions” before the Subcommittee on Courts, the Internet,

and Intellectual Property of the Committee on the Judiciary of

the United States House of Representatives. One of the

witnesses at that hearing was the Honorable Alex Kozinski,

the Ninth Circuit judge who authored Hart v. Massanani, supra.

In Hart v. Massanari, supra, Judge Kozinski noted that

“{w]hile federal courts of appeals generally lack discretionary

review authority, they use their authority to decide cases by

unpublished -- and nonprecedential -- dispositions to achieve

the same end.” Hart v. Massanari, supra at 1177. Judge

Kozinski (together, at times,’” with Judge Stephen Reinhardt,

the senior member of the Ninth Circuit panel that was assigned,

but did not decide, the case at issue in this Petition) has

emphasized the practical benefits (even the necessity) of

unpublished (and nonprecedential) judicial opinions for the

operation of the Ninth Circuit. See, e.g., Hart v. Massanari,

supra at 1176-1178. Disabled Rights does not dispute the

practical benefits (nor the necessity and constitutionality) of

maintaining a distinction between precedent-setting cases and

cases where a shorter, less time-consuming, and non-

precedential disposition is appropriate.

Disabled Rights is persuaded by Judge Kozinski’s

arguments regarding the constitutionality and practicality of

e A torrent of commentary followed in the wake of

Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235

F.3d 1054 (8" Cir. 2000).

a See, e.g., Alex Kozinski & Stephen Reinhardt, Please

Don't Cite This! Why We Don’t Allow Citation to Unpublished Dispositions,

CAL. LAW., June 2000.

nonpublication. Furthermore, Judge Kozinski is a man of

extraordinary intellect, industry, and intellectual honesty. As

such, he has articulated standards for publication of opinions

as follows:

Whether or not something is published is not up to the

whim of the judges. We have legal standards for when

we publish. One very simple way of testing it, if I have

to write a disposition and I can't cite a Ninth Circuit

case on point I publish, and I think that is a rule of

most of my colleagues. It has to be a Ninth Circuit case

directly controlling. --

Unpublished Judicial Opinions: Hearings Before the Subcomm. on

Courts, the Internet, and Intellectual Property of the House Comm.

on the Judiciary, 107th Cong., 2nd Sess. 62 (June 27, 2002)

(testimony of Judge Alex Kozinski).

Unfortunately for the Disabled Rights Action

Committee (and its members residing in Las Vegas), its

appeals to the Ninth Circuit have repeatedly been heard by

judges representing the minority of Ninth Circuit judges who

do not subscribe to Judge Kozinski’s responsible standards for

publication. In fact, with the exception of Long v. Coast Resorts,

Inc., 267 F.3d 918 (9th Cir. 2001) (wherein Judge Kozinski was

the senior member of the panel which heard and decided the

case), the appeals of the Disabled Rights Action Committee

(and its members) to the Ninth Circuit have repeatedly been

given short shrift, even though each appeal was decided (sub

silentio, of course) on a point of law that has been contrary to

the precedent of this Court (let alone contrary to Ninth Circuit

precedent).”°

- In Mortenson v. Rock Springs Vista Development Corp., 8

Fed.Appx. 837 (9th Cir. 2001) petition for cert. denied, 122 S.Ct. 542 (2001),

the Ninth Circuit declined to accord a disabled person “tester” standing

In sum, the practical effect of the Ninth Circuit's use of

unpublished dispositions “to achieve the same end” as a grant

of “discretionary review authority,” is plainly evident in the

case submitted for review. The panel of the Ninth Circuit,

without discretionary review authority, has effectively decided

not to decide the case presented to it for review. No matter

what course of action is taken by the circuit courts of appeals

vis-a-vis unpublished opinions, the course of action taken by

the Ninth Circuit in this case presents a situation that simply

cannot be remedied by modification of nonpublication rules

because an “inconvenient decision” has not been buried.

Instead, an “inconvenient case” has been buried.

The distinction between burying a decision and

burying a case is that, where a case has been buried, there is no

decision that addresses the case. The effect of burying the case

that is the subject of this Petition can be objectively measured

by the same method shown by Professor Arthur Hellman

before Congress to demonstrate the precedential insignificance

under 42 U.S.C. § 3604(f)(2) even though an administrative

pronouncement of the Department of Housing and Urban Development

stated that such standing should be accorded in light of Havens Realty Corp.

v. Coleman, 455 U.S. 363 (1982). Furthermore, the Ninth Circuit did not

even address the logic of the administrative pronouncement as required

under United States v. Mead Corp., 533 U.S. 218 (2001) and Skidmore v. Swift

& Co., 323 U.S. 134 (1944). In Disabled Rights Action Committee v. Fremont

Street Experience Limited Liability Company, 44 Fed.Appx. 100 (9th Cir.

2002), petition for cert. filed Oct. 21, 2002 (No. 02-625), the Ninth Circuit

affirmed the district court's literal “disintegration” of a claim of

discriminatory conduct into the discrete manifestations of the conduct,

thus allowing a finding of mootness despite this Court's precedent (in

Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) and United States v.

Concentrated Phosphate Export Assn., Inc., 393 U.S. 199 (1968)) requiring the

party asserting mootness of conduct to show that it is absolutely clear

that the wrongful behavior will not recur.

ae re

Pa a Re TT re BI Bo a i

of unpublished decisions:

But I have here—this is the Federal appendix we have

heard so much about. These are the unpublished

opinions—not the hard-covered version but the

soft-covered version. If you were to browse through

that, you would say that most of those cases got just

about the treatment they deserve, a written opinion,

but not precedential.

Unpublished Judicial Opinions: Hearings Before the Subcomm. on

Courts, the Internet, and Intellectual Property of the House Comm.

on the Judiciary, 107th Cong., 2nd Sess. 64 (June 27, 2002)

(testimony of Professor Arthur Hellman).

Apart from parties to the case, no one reading the

Ninth Circuit’s Memorandum disposition of this case would

have the slightest idea of the error that the Ninth Circuit

committed in avoiding its duty to hear and decide the case

presented to it for review. The uninformed reader would

simply conclude that Disabled Rights had tried to make a state

law claim for “unjust enrichment” without ample facts for the

cause of action - end of story.

To the informed, however, the Ninth Circuit's

Memorandum disposition in this case is an example of a

circuit court evading its duty to decide the case presented for

review. As this Court has recently reiterated, “Tt]he Federal

Rules reject the approach that pleading is a game of skill in

which one misstep by counsel may be decisive to the outcome

and accept the principle that the purpose of pleading is to facilitate

a proper decision on the merits.’” Swierkiewicz v. Sorema N.A., 534

U.S. at 514 (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)

(emphasis added)). Furthermore, “where federally protected

rights have been invaded, it has been the rule from the

beginning that courts will be alert to adjust their remedies so

as to grant the necessary relief.” Bell v. Hood, 327 U.S. at 684.

The Ninth Circuit, however, has done just the opposite: it has

been alert to adjust the complaint so as to preclude review of a

decision, to avoid its duty to decide the case submitted for

review, and to effectively deny any relief for an invasion of

federally protected rights.

The United States Supreme Court retains the ultimate

check on the practices of the circuit courts of appeals. That

check is this Court’s supervisory power, and that power

should be exercised in this case.

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted.

RICHARD F. ARMKNECHT, III

Counsel of Record

Armknecht & Cowdell, P.C.

364 West 120 South

Lindon, Utah 84042

Phone: (801) 796-0901

FAX: (413) 825-8570

Attorney for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

{Filed March 20, 2002]

DISABLED RIGHTS )

ACTION COMMITTEE; ) No. 01-15248

RONALD RAY SMITH, )

)

Plaintiffs-Appellants, ) D.C. No. CV-00-00806-RLH

Vv. ) !

)

SANTA FE GAMING ) MEMORANDUM*

CORPORATION, )

)

Defendant-Appellee. )

)

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding —

Argued and Submitted, February 12, 2002

San Francisco, California

-Before: REINHARDT and FISHER, Circuit Judges, and

MOLLOY, District Judge.**

* This disposition is not appropriate for publication

and may not be cited to or by the courts of this circuit

except as may be provided by Ninth Circuit Rule 36-3.

** The Honorable Donald Molloy, United States

District Judge for the District of Montana, sitting by

designation.

Plaintiffs brought this action pursuant to Title III of

the Americans With Disabilities Act ("ADA"), seeking an

accounting for unjust enrichment because one of the shuttle

buses that defendant Santa Fe Gaming ("Santa Fe") operated

was not accessible to patrons who use wheelchairs. The

district court dismissed the complaint pursuant to Fed. R.

Civ. P. 12(b)(6), and plaintiffs appeal.

The district court ruled that the remedial provision of

Title III of the ADA, 42 U.S.C. § 12188, does not allow an

equitable remedy in monetary form, such as an accounting

for unjust enrichment.’ We agree that the relief sought here

is not authorized, given the circumstances of this case, and

need not decide any broader question.

Plaintiffs have not stated a cognizable claim for unjust

enrichment. They do not allege that defendant Santa Fe

gained profits from its alleged ADA violation that properly

belonged to the plaintiffs. See, e.g., Oregon Laborers-

Employees Health & Welfare Trust Fund v. Philip Morris, 185

F.3d 957, 968 (9th Cir. 1999) (stating that "to state a cause of

action for unjust enrichment, plaintiffs must show that they

conferred a 'benefit' on defendants and that it would be

unjust for defendants to retain that benefit"). Here, plaintiffs

were able to ride other Santa Fe buses during the time that

the defendant's larger and non-conforming bus was in

service. Under the circumstances, by seeking an accounting

for unjust enrichment when Santa Fe did not reap profits

that rightfully belonged to the plaintiffs, the plaintiffs are in

Title III of the ADA, which proscribes discrimination in

public accommodations, incorporates the remedies contained in the

public accommodations portions of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a-3(a).

essence pursuing punitive damages for defendant's alleged

ADA violation. Damages are not an available remedy for a

violation of Title III of the ADA. See 42 U.S.C. § 2000a-3(a).

Thus, the district court properly dismissed plaintiffs' claim

as a matter of law.

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

[Entered and Served December 15, 2000]

DISABLED RIGHTS

ACTION COMMITTEE; a

Utah nonprofit corporation;

and RONALD RAY SMITH,

Plaintiffs, CV-S-00-00806 RLH

VS.

SANTA FE GAMING

CORPORATION, a Nevada

corporation, et al.,

ORDER

(Motion to Dismiss— # 4)

Defendant-Appellee.

ee ee ee i

This matter came before the Court on Defendant

Santa Fe's Motion to Dismiss Cause of Action for Unjust

Enrichment (# 4). The Court has considered Defendant's

Motion (# 4), Plaintiff's Opposition (# 6), and Defendant's

Reply (# 7).

BACKGROUND

This is an action based upon an alleged violation of Title

III of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

§ 12101, et seq., because the Santa Fe Gaming Corporation

("Santa Fe") operated a shuttle bus that was not wheelchair

accessible. The Second Cause of Action, which is the subject

of the instant motion, seeks an accounting for unjust

enrichment. The Plaintiffs assert that employment of a

shuttle bus system confers an economic benefit to the Santa

Fe and Santa Fe's delay in retrofitting the shuttle bus gives

them the associated time value of money.

DISCUSSION

The Santa Fe contends that the Plaintiffs have failed to

state a claim upon which relief can be granted in the second

cause of action for unjust enrichment. The Santa Fe believes

that an accounting for unjust enrichment is a form of

monetary relief, which is unavailable under Title ITi of the

ADA. Plaintiffs argue that accounting for unjust enrichment

constitutes "preventive relief" allowable under Title III of the

ADA.

I. Motion to Dismiss

In considering Defendants' Motion to Dismiss, the

factual allegations of Plaintiffs' Complaint must be

presumed to be true, and this Court must draw all

reasonable inferences in favor of Plaintiffs. Usher v. City of

Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The issue is not

whether Plaintiffs will ultimately prevail, but whether they

are entitled to offer evidence in support of their claims.

Scheuer v. Rhodes, 416 U.S. 232, (1974). Consequently, the

Court may not grant a Motion to Dismiss for failure to state

a claim "unJess it appears beyond doubt that the Plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-

46 (1957). The Court does not, however, necessarily assume

the truth of legal conclusions merely because they are cast in

the form of factual allegations in Plaintiffs' Complaint.

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.

1981), cert. denied, 454 U.S. 1031, (1981).

II. Accounting for Profits as Unjust Enrichment

Plaintiffs have alleged a cause of action seeking an

accounting for unjust enrichment. Title III of the ADA deals

with public accommodations and services operated by

private entities. 42 U.S.C. § 12188 discusses the enforcement

of violations of the ADA. Specifically, 12188(a)(1) states:

The remedies and procedures set forth in section

2000a-3(a) of this title are the remedies and

procedures this subchapter provides to any person

who is being subjected to discrimination on the basis

of disability in violation of this subchapter or who

has reasonable grounds for believing that such

person is about to be subjected to discrimination in

violation of section 12183 of this title.

42 U.S.C. § 2000a-3(a) allows aggrieved persons in a civil

action to seek "...preventive relief, including an application

for a permanent or temporary injunction, restraining order,

or other order, [which] may be instituted by the person

aggrieved and, upon timely application, the court may, in its

discretion, permit the Attorney General to intervene in such

civil action if he certifies that the case is of general public

importance."

In the instant case, Plaintiffs seek an accounting for

unjust enrichment, which includes the "application of the

principles of equity [requiring] Defendants to disgorge to

Plaintiffs the full amount of economic gain reaped by

Defendants through [their] illegal conduct." Although

Plaintiffs have eloquently termed this an "accounting for

profits", Santa Fe would have to pay or "disgorge" to

Plaintiffs any economic gain it received during this period.

This in essence makes the "accounting for profits" a form of

monetary relief. Under the ADA, Congress created a cause

of action for private individuals, but limited the remedies

available under that cause of action to "preventative" or

equitable relief. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1120

(9th Cir. 2000). Monetary relief is not an option for private

individuals under Title III of the ADA...as a result, a plaintiff

who files an ADA claim can at most hope to improve access

through an injunction. Id. So, at best, Plaintiffs in this case

can hope to improve access to the shuttle bus through an

injunction and nothing more. Therefore, the Court agrees

that Plaintiffs Second Cause of Action has failed to state a

claim upon which relief can be granted, because the ADA

does not allow awards for monetary relief.

CONCLUSION

Accordingly, and for good cause appearing,

IT IS HEREBY ORDERED that Defendant's Motion to

Dismiss (# 4) is GRANTED. ‘

Dated December 12, 2000.

/s/ ROGER L. HUNT

United States District Judge

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed August 8, 2002]

DISABLED RIGHTS )

ACTION COMMITTEE; ) No. 01-15248

RONALD RAY SMITH, )

)

Plaintiffs-Appellants, ) D.C. No. CV-00-00806-RLH

) District of Nevada,

V. ) Las Vegas

)

SANTA FE GAMING ) ORDER

CORPORATION, )

)

Defendant-Appellee. _)

)

Before: REINHARDT and FISHER, Circuit Judges, and

MOLLOY, District Judge.*

The panel has unanimously voted to deny the

Petition for Rehearing. Judge Reinhardt and Judge Fisher

vote to deny the Petition for Rehearing En Banc, and Judge

Molloy so recommends.

The full court has been advised of the Petition for

Rehearing En Banc and no judge of the court has requested a

vote on the Petition for Rehearing En Banc. Fed. R. App. P.

35.

The Petition for Rehearing and Petition for

Rehearing En Banc are DENIED.

* The Honorable Donald Molloy, United States District

Judge for the District of Montana, sitting by designation.

10a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

[Filed June 19, 2000]

DISABLED RIGHTS

ACTION COMMITTEE; a

Utah nonprofit corporation;

and RONALD RAY SMITH,

Plaintiffs, CV-S-00-00806 RLH

vs.

SANTA FE GAMING COMPLAINT

CORPORATION, a Nevada

corporation,

DOES I-X; and ROE

CORPORATIONS I-X; et al.,

Defendant-Appellee.

me meee eee ee ee”

Plaintiffs, DISABLED RIGHTS ACTION

COMMITTEE, a Utah nonprofit corporation; and RONALD

RAY SMITH, by and through their attorney, RICHARD F.

ARMKNECHT, III, do hereby complain against SANTA FE

GAMING CORPORATION, a Nevada corporation, DOES I-

X; and ROE CORPORATIONS I-X; as follows:

JURISDICTION AND VENUE

1. This is an action for declaratory judgment and

permanent injunctive relief for Defendants’ violations of

Title III of the Americans with Disabilities Act, 42 U.S.C. §

lla

12181, et seq. (ADA), and for equitable relief in the form of

an accounting for Defendants' unjust enrichment. Plaintiff

SMITH files this action individually, and Plaintiff

DISABLED RIGHTS ACTION COMMITTEE files this action

on behalf of its members. The Court has jurisdiction of this

action under 28 U.S.C. § 1331, and 42 U.S.C. § 12188(a)(1).

2. Venue of this action is appropriate in the United

States District Court for the District of Nevada, pursuant to

28 U.S.C. § 1391(b) and (c) as the claim arose in such district

and, further, as Defendants conduct business in such

district.

THE PARTIES

3. Plaintiff RONALD RAY SMITH is a natural

person who resides in Las Vegas, Nevada. Mr. Smith

requires a wheelchair for mobility. He desires the fullest

access (on a non-discriminatory and fully integrated basis)

to all of the amenities of living in Las Vegas, including the

bus service provided by Defendants. Such desire is

frustrated by the maintenance of public accommodations

(including the bus service provided by Defendants) which

subject Plaintiff SMITH to discrimination and segregation.

4. Plaintiff DISABLED RIGHTS ACTION

COMMITTEE (DRAC) is a Utah non profit corporation

organized with the principal purpose of helping to eliminate

discrimination against individuals with disabilities by

ensuring compliance with laws intended to provide access

to housing, public buildings, transportation, goods and

services. The ADA constitutes such a law. DRAC is

qualified as a charitable organization under 26 U.S.C. §

901(c)(3). Members of DRAC are primarily individuals with

disabilities and persons related to individuals with

disabilities. DRAC has over one thousand members

nationwide. DRAC's membership includes residents of

Nevada other than the individual plaintiff. As a result of

their disabilities, certain accommodations are necessary to

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allow DRAC’s members access to public buildings,

transportation, goods and services, which access is required

under the ADA.

5. Defendant SANTA FE GAMING

CORPORATION (“SANTA FE”) is a Nevada corporation

primarily engaged in the hotel and gaming business.

SANTA FE’s hotel and gaming property is the “Santa Fe

Hotel & Casino” located at 4949 North Rancho Drive, Las

Vegas, Nevada. As an amenity associated with its principal

business (hotel and gaming), SANTA FE provides a shuttle

bus service. SANTA FE is subject to the requirements of the

ADA as it operates or otherwise provides (either directly or

indirectly) public accommodations, as defined in Title III of

the ADA, 42 U.S.C. § 12181.

6. DOES I-X are fictitiously-named individuals

who are employed or otherwise affiliated with the named

Defendant which operate and provide discriminatory

shuttle bus service at the Santa Fe Hotel & Casino, or who

otherwise have sufficient control over the equipment

and/or operations of the shuttle bus system in order to

cause a remedy to the discriminatory aspects of the shuttle

bus system complained of. Such fictitiously-named

individuals are anticipated to be identified through

discovery at which time the fictitiously-named Defendants

can be identified in true name.

if ROE CORPORATIONS I-X are fictitiously-

named corporations or other business entities that are

affiliated with the named Defendants (either contractually,

as subsidiaries, or as commonly-owned entities) which

operate and provide discriminatory shuttle bus service at

the Santa Fe Hotel & Casino, or which otherwise have

sufficient control over the equipment and/or operations of

the shuttle bus system in order to cause a remedy to the

discriminatory aspects of the shuttle bus system complained

of. Such fictitiously-named corporations are anticipated to

be identified through discovery at which time the

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fictitiously-named Defendants can be identified in true

name.

FIRST CAUSE OF ACTION

(Violation of ADA)

8. Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 7 hereof, and

incorporate the same herein by reference.

9. Plaintiffs, because of their disabilities, cannot

fully and equally access the transportation services provided

by Defendants. Plaintiff SMITH was subjected to such

discrimination on Sunday, June 10th, 2000, when Mr.

SMITH visited the Santa Fe and waited at the shuttle bus

stop for a ride. At 7:15, p.m., a large shuttle bus bearing

license plate 448 DYX (448 DYX) arrived. See Exhibit 1. 448

DYX was not equipped with a wheelchair lift, so Mr. SMITH

was discouraged from even attempting to board the bus, as

such effort would have constituted a futile gesture.

10. ‘For alll Plaintiffs (including wheelchair-using

members of Plaintiff DRAC, whom DRAC is representing in

this cause of action) the inability to access Defendants'

shuttle bus, 448 DYX, is ongoing and constitutes irreparable

harm in the nature of humiliation, limitation of freedom,

and in other forms of intangible injuries to Plaintiffs' dignity

interests. Plaintiffs eagerly await the opportunity to access

Defendants' transportation on a nondiscriminatory basis or,

in the alternative, to see the cessation of the discriminatory

practices conducted by Defendants by their favoring able-

bodied patrons in the provision of shuttle transportation.

11. 448 DYX can carry more than 16 persons

(including the driver), has (on information and belief) been

acquired subsequent to 1990, and runs on a fixed route.

12. Defendants have discriminated against

Plaintiffs on the basis of disability in the full and equal

enjoyment of the services, facilities, privileges, advantages,

or accommodations of Defendants' place of public

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accommodation.

SECOND CAUSE OF ACTION

(Accounting for Unjust Enrichment)

13. ‘Plaintiffs repeat and reallege each and every

allegation contained in paragraphs 1 through 12 hereof, and

incorporate the same herein by reference.

14. On information and belief, Defendants'

employment of a shuttle bus system confers an economic

benefit to Defendants, and Defendants’ delay in retrofitting

448 DYX gives Defendants the associated time value of

money.

15. | The ADA has been the "law of the land" since

1990, and knowledge of the law (and the benefits it confers

upon disabled persons) may be imputed to Defendants.

Furthermore, as of the date of service of this Complaint,

Defendants have actual notice of their obligations under the

ADA.

16. As Defendants have infringed upon the

rights of others (wheelchair users residing in or visiting Las

Vegas) to gain an economic benefit (the economic advantage

of leasing less expensive, inaccessible, vehicles; the

increased profitability inherent in operating a shuttle bus

service; and the time value of money), Defendants have

been unjustly enriched, and the full application of the

principles of equity requires Defendants to disgorge to

Plaintiffs the full amount of economic gain reaped by

Defendants through Defendants' illegal conduct.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that judgment be

entered against Defendants;

(a) For a permanent injunction enjoining

Defendants, their agents, employees and assigns from

discrimination on the basis of disability in violation of the

Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.,

15a

and specifically requiring Defendants to cease violating 42

U.S.C. § 12182(b)(2)(B) by operating on a fixed route any

inaccessible shuttle bus seating more than 16 persons (and

in all events providing equivalent bus service to persons

without regard to disability);

(b) For the full amount of the economic

benefit which has wrongfully inured to Defendants as a

result of their violation of the ADA;

litigation expenses, and costs of suit; and

(d) ‘For such other and further relief

deemed appropriate by the Court.

DATED this 17th day of June, 2000.

/s/

Richard F. Armknecht, III, Esq.,

Nevada Bar Number 5205

7862 Danish Downes Court,

Salt Lake City, Utah 84121

(801) 942-3804

l6a

APPENDIX E

TEXT OF APPELLANTS’ REPLY BRIEF

IN THE NINTH CIRCUIT

I. Introduction.

The United States Supreme Court has recently noted

that “one of the [Americans with Disabilities] Act’s ‘most

impressive strengths’ has been identified as its

‘comprehensive character’” PGA Tour, Inc. v. Martin, 532

US. __, __; No. 00-24, slip op. at 12 (decided May 29, 2001)

(quoting Hearings on S. 933 before the Senate Committee on

Labor and Human Resources and the Subcommittee on the

Handicapped, 101* Cong., 1° Sess., 197(1989)(statement of

Attorney General Thornburgh)). Santa Fe Gaming

Corporation (Santa Fe), in urging the Court to adopt a

restrictive reading of the enforcement scheme of Title III of

the Americans with Disabilities Act of 1990 (ADA),

characterizes Plaintiffs’ brief as “nothing more than a

lengthy argument of the law as they would like it to be

rather than the law as it exists.” Appellee Brief, p.6. While

it is true that there is “no ADA case law directly holding

that a claim for unjust enrichment or other monetary relief

can be awarded under [Title II of] the ADA.” (Appellee

Brief, p.6), there is also no ADA case law that directly

addresses the availability of disgorgement of unjust

enrichment or other forms of equitable monetary relief.

Clearly, the Court is presented with a case of first

impression and “The fact that a statute can be applied in

situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” PGA

Tour, Inc. v. Martin, 532 U.S. ___, __; No. 00-24, slip op. at

27 (decided May 29, 2001), quoting Pennsylvania Dept. of

Corrections v. Yeskey, 524 U.S. 206, 212 (1998).

Aside from various examples of dicta, Santa Fe’s

restrictive reading of the enforcement scheme of Title III of

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the ADA has no basis in existing case law, in the plain

meaning of 42 U.S.C. 12188(a)(1), in the plain meaning of 42

U.S.C. 2000a-3(a), in the purpose of the ADA, or in the

enforcement of ADA Title III.’

II. This Court is not Required to Engage in Fact-Finding.

Santa Fe certainly understands that this is an appeal

of a dismissal under Fed. R.Civ.Pro. 12(b)(6). Appellee

Brief, p. 1. Accordingly, the allegations of the Complaint are

taken as true. Santa Fe, however, contends that no

“compelling need” for monetary equitable relief has been

“demonstrated” and that “ Appellants have produced no

evidence that violators are dragging their feet in settling

Title III access cases.” Appellee Brief, pp. 21-22. At this

stage of the proceedings, of course, Plaintiffs have not

assembled the evidence (or, at least, have not submitted all

of their evidence to the district court) to support an award in

equity of monetary relief. Santa Fe is essentially attempting

to turn this appeal into an appeal of a grant of summary

judgment in favor of Santa Fe. Plaintiffs had the misfortune

to have their claim dismissed under Fed.R. Civ. Pro.

12(b)(6). If their case had survived the 12(b)(6) motion, then

they would have entered into evidence facts sufficient to

support the equitable relief sought. This evidentiary

incapacity is remedied by the standard of review applicable

It is also important to note what Santa Fe Gaming

Corporation (Santa Fe) has not argued in its “Appellee Brief.” It has not

argued that the word “including” should be deemed to be a term of

limitation. It has not argued that an accounting for profits would not

serve a “preventive” function (but, instead, argues that “[t]he terms

‘preventive’ or ‘preventive relief’ as used in 42 U.S.C. 2000a-3(a) refer

only to those injunctive remedies such as injunctions, restraining orders

and other such orders.”) Appellee Brief, p.16. (emphasis in original). It

also does not argue that an accounting for profits (or disgorgement) is

anything other than an equitable remedy

18a

to motions to dismiss under 12(b)(6). Questions of fact and

matters of equity, of course, are properly matters for the

district court to decide, and this Court should decline Santa

Fe’s invitation to engage in both fact finding and equity-

weighing at the appellate level. See, Murray v. United States,

487 U.S. 533, 542-43 (1988).

III. Santa Fe’s Case Law “Support” is Mere Dicta.

Santa Fe cites a host of cases for the proposition that

42 U.S.C. 2000a-3(a) does not provide tor damages. See, e.g.,

Newman v. Piggie Park, 390 U.S. 400, 402 (1968); Fischer v.

SJB-P.D. Inc., 215 F.3d 1115, 1120 (9 Cir. 2000); American Bus

Association v. Slater, 231 F.3d 1,5 (D.C. Cir. 2000); Stan v.

WalMart Stores, Inc., 111 F.Supp.2d 119, 124 (N.D.N.Y. 2000);

Long v.-Coast Resorts, Inc., 32 F. Supp.2d 1203, 1209 (D.Nev.

1998); A.R. v. Kogan, 964 F.Supp. 269, 271 (N.D.IL. 1997);

Battle v. Dayton-Hudson Corporation, 399 F.Supp. 900, 905

(D.Minn. 1975); Lyle v. Village of Golden Valley, 310 F.Supp.

852, 854-855 (D.Minn. 1970). This point of law is clear, and

Plaintiffs agree that no damages are allowed under 42 U.S.C.

2000a-3(a).. Many of the cases cited by Santa Fe state that

district courts’ jurisdiction under 42 U.S.C. 2000a-3(a) is

limited to “injunctive relief.” See, A.R. v. Kogan, 964 F.Supp.

269, 271 (N.D.II. 1997); Battle v. Dayton-Hudson Corporation,

399 F.Supp. 900, 905 (D.Minn. 1975); Lyle v. Village of Golden

Valley, 310 F.Supp. 852, 854-855 (D.Minn. 1970). These

pronouncements are, however, completely consonant with

allowing monetary equitable relief under a well-established

point of law: monetary equitable relief is “ancillary to” or

“incident to” injunctive relief. See, infra at 13-18.

Still fewer of the cases cited by Santa Fe contain

language supporting Santa Fe’s proposition that 42 U.S.C.

2000a-3(a) does not provide for “monetary relief.” See, e.g.,

Fischer v. SJB-P.D. Inc., 215 F.3d 1115, 1120 (9" Cir. 2000);

Stan v. WalMart Stores, Inc., 111 F.Supp.2d 119, 124

19a

(N.D.N.Y. 2000). See also, American Bus Association v. Slater,

231 F.3d 1, 5 (D.C. Cir. 2000) (noting an “intent to deny

agencies the power to authorize supplementary injunctive

relief.” (emphasis added)). In two of the cases cited by Santa

Fe (Stan v. WalMart Stores, Inc., and American Bus Association

v. Slater), the “monetary relief” that was actually sought in

the case was limited to damages. In Fischer v. SJB-P.D. Inc.,

the connection was even more tenuous: no relief other than

attorneys fees was at issue. Clearly, because neither

restitution, disgorgement, nor an accounting for profits was

at issue, language denying any “monetary relief” (including

monetary relief other than damages) is merely dicta. Cf,

Allegeheny County v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (stare decisis

extends to holdings of prior cases and “to their explications

of the governing rules of law”) (Kennedy, J., concurring and

dissenting).

The Court's overreach in its dicta is certainly

understandable. It is “the ‘general rule’ that monetary relief

is legal” Feltner v. Columbia Pictures Television, Inc., 523 U.S.

340, 352 (1998) (quoting Chauffeurs, Teamsters and Helpers,

Local No. 391 v. Terry, 494 U.S. 558, 570 (1990)). See also,

Curtis v. Loether, 415 U.S. 189, 196 (1974). Furthermore, only

the availability of attorneys fees was before the Ninth

Circuit in Fischer v. SJB-P.D. Inc., supra, not the question

presented in this case: what is the scope of the relief

afforded under 42 U.S.C. 2000a-3(a)?

IV. 420U.S.C. 121 1

Equitable Forms of Monetary Relief.

Santa Fe contends that “the determinative factor in

this appeal is that Title III of the ADA, section 12188

provides for two remedies . . . the private civil action [and]

enforcement by the Attorney General.” Appellee Brief, p. 19.

Santa Fe argues that (1) there is a large body of case law

20a

which holds that “12188(a)(1) of the ADA is limited to

providing injunctive relief and not monetary relief” and (2)

“the provision of 42 U.S.C. § 12188(b) provides enforcement

by the Attorney General including assessment of monetary

damages and civil penalties. Plaintiff Smith chose to bring

his suit under the private enforcement provision of Title III

of the ADA rather than seeking relief under 12188(b).”

Appellee Brief, p. 9.

42 U.S.C. 12188(a)(1), of course, expressly

incorporates the remedies afforded under 42 U.S.C. 2000a-

3(a), and references to 42 U.S.C. 12188(b) are simply

inapplicable to this case. First of all, Santa Fe is in error to

assert that Plaintiffs had a choice of bringing suit under

either 12188(a)(1) or 12188(b). The choice -- under the

statutory scheme - is the choice of the Attorney General,

not that of the Plaintiffs. Furthermore, under the realities of

civil rights litigation, the Department of Justice is simply

unable to enter into every civil rights lawsuit. Next, just

because the Attorney General has a set of remedies that is

more expansive than that available to private litigants is no

basis for concluding that private litigants should be denied

the full range of equitable remedies which are ancillary to

(or “adjunct to” or “incident to”) injunctive relief.

Santa Fe misreads American Bus Association v. Slater,

231 F.3d 1 (D.C. Cir. 2000). The circuit court in that case was

not “faced with interpreting the scope of § 2000a-3(a)

remedies.” (Appellee Brief, p.17) except for the readily-

accepted point that damages are not available. To the extent

that American Bus Association v. Slater makes the point that

only specifically enumerated remedies are available under

the ADA, such holding merely states the truism that

remedies under 42 U.S.C. 12188(a)(1) are limited to the

remedies available under 42 U.S.C. 2000a-3(a) and that 42

U.S.C. 2000a-3(a) does not provide for damages.

Santa Fe apparently argues that, because “the

Congress carefully crafted the ADA remedies scheme and

2la

evinced its intent that damages would be available under 42

U.S.C. 12188(b) only if certain conditions were met,”

(Appellee Brief, pp. 13-14) the full range of equitable relief

should not be available under 42 U.S.C. 2000a-3(a) (as

incorporated under 42 U.S.C. 12188(a)(1)). Of course, Santa

Fe seeks to mix apples (private lawsuits) with oranges

(Attorney General lawsuits). There is simply nothing to

support the contention that a limitation of damages to

Attorney General lawsuits indicates that the full range of

equitable remedies should not be available to private litigants.

In fact, the opposite is indicated because where damages are

not available to private litigants, “necessary relief” must

include something in addition to injunctions other than

damages. As the Supreme Court has observed: “If [persons

obliged to comply with civil rights laws] faced only the

prospect of an injunctive order, they would have little

incentive to shun practices of dubious legality [and]. . .

‘where federally protected rights have been invaded, it has

been the rule from the beginning that courts will be alert to

adjust their remedies so as to grant the necessary relief.’”

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975)

(quoting Bell v. Hood, 327 U.S. 678, 684 (1946)).

Furthermore, even the most comprehensive of

enforcement schemes (such as the enforcement scheme set

forth under ERISA’) does not “crowd out” the full range of

equitable remedies (including restitution) without a clear

expression of Congressional intent. See, Mertens v. Hewitt

Assocs. 508 U.S. 248, 256-258 (1993). Cf, Dishman v. UNUM

Life Insurance Company, Nos. 99-55963 and 99-56077, slip op.

at 5747-48 (9" Cir. May 8, 2001) (prejudgment interest

allowable in an ERISA claim); Shaw v. International Ass'n of

. Six statutory enforcement provisions provide evidence

that Congress did not intend any other means of enforcement. See,

Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985).

22a

Machinists & Aerospace Workers Pension Plan, 750 F.2d 1458,

1465 (9" Cir. 1985) (same).

Santa Fe attempts to distinguish United States v. Rent-

a-Homes Systems of Illinois, Inc., 602 F.2d 795 (7" Cir. 1979);

United States v. Mitchell, 580 F.2d 789 (5" Cir. 1978); and

United States v. Long, 537 F.2d 1151 (4" Cir. 1975) cert. denied

429 U.S. 871 (1976) based upon the fact that each of those

cases was “brought by the Attorney General as opposed to

private civil actions.” Appellee Brief, p. 18. Again, Santa Fe

sees a variety of remedies in a statutory scheme and

concludes that, even though an identical statutory provision

is found in two different enforcement schemes, each having

a different mix of provisions, that an earlier description of

the discreet and identical provision is distinguishable.’ The

enforcement at issue is not intertwined with the

enforcement available to the Attorney General under 42

U.S.C. 12188(b) and “each kind of relief is separably

authorized in a separate and distinct statutory provision.”

Tull v. United States, 481 U.S. 412, 424 (1987) (describing the

enforcement scheme for the Clean Water Act). Finally, the

implication that an enforcement provision should have a

narrower scope for private litigants than for the Attorney

General runs directly against the purpose of private

enforcement through 42 U.S.C. 2000a-3(a), which section

incorporates the efforts of private attorneys general for

“vindicating a policy that Congress considered of the

highest priority.” Newman v. Piggie Park, 390 U.S. 400, 402

(1968).

, Instead of “not being able to see the forest for the trees,”

Santa Fe has focused on the “forest” to describe a “tree” and presents

logic which is analogous to the following syllogism: “Oaks located in a

forest consisting of oak, maple and beech are observed to bear acorns in

the fall. This oak is found in a forest consisting of oak and pine.

Therefore, this oak will not bear acorns.”

23a

V. 42U.S.C. 2000a-3(a) does not Restrict Equitable

urisdiction.

A. Santa Fe has not presented a clear and valid legislative

command negating any equitable relief.

Santa Fe (at Appellee Brief, pp. 19-20) is plainly

aware that a limitation on the “comprehensiveness” of a

district court’s “equitable jurisdiction is not to be denied or

limited in the absence of a clear and valid legislative command.

Unless a statute in so many words, or by necessary

inference, restricts the court's jurisdiction in equity, the full

scope of that jurisdiction is to be recognized and applied.”

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)

(emphasis added). The Ninth Circuit has noted that

“Congress's intent to adopt such a regime must be clear: a

strong presumption militates against any such finding.”

Reebok Int'l, Ltd. v. Marnatech Enter., Inc., 970 F.2d 552, 561

(9th Cir. 1992).

Santa Fe seeks to convince the Court that a “clear

and valid legislative command” is found in the heading to

the statutory provision at issue (“Civil actions for injunctive

relief”) and to its description (in the legislative history) as a

“bill . . . to confer jurisdiction upon the district courts of the

United States to provide injunctive relief against

discrimination in public accommodations.” Appellee Brief,

pp. 10-11 (quoting Lyle v. Village of Golden Valley, 310 F.Supp.

852, 854-855 (D.Minn. 1970)). Certainly, “‘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.”

Almendarez - Torres v. United States, 523 U.S. 224, 234 (1998),

quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519,

928-529 (1947). Santa Fe, however, fails to provide an

example of a heading to a statutory provision which has

provided a “clear and valid legislative command” to limit

equitable remedies where the statute provides for injunctive

relief. In fact, Santa Fe does not provide any example of a

24a

court-recognized “clear and valid legislative command”

sufficient to countermand the presumption of broad

equitable remedies (including equitable monetary relief)

where injunctive relief is authorized by Congress.*

When held up to the standard enunciated by the

Supreme Court for a “clear statement” in legislation, the

headings presented by Santa Fe appear particularly anemic.

For example, in Landgraf v. USI Film Products, 511 U.S. 244,

260 (1994), the language that the Supreme Court suggested

might qualify as a clear statement (that a statute was to

apply retroactively)was: “[T]he new provisions shall apply

to all proceedings pending on or commenced after the date

of enactment.” See also, Martin v. Hadix, 527 U.S. 343, 353-355

(1998). In Mitchell v. DeMario Jewelry, 361 U.S. 288 (1960), the

Supreme Court considered a grant of jurisdiction “to

restrain violations” limited so “that no court shall have

jurisdiction, in any action brought by the Secretary of Labor

to restrain such violations, to order the payment to

employees of unpaid minimum wages or unpaid overtime

compensation or an additional equal amount as liquidated

damages in such action.” The Supreme Court held that

there was “no warrant for construing the [limiting] proviso

as reaching beyond suits to enjoin violations of the

minimum wage and overtime provisions of the statute, so as

wholly to eradicate any jurisdiction to restore wage losses to

employees discharged in [retaliation for maintaining their

rights under law].” Id. at 296. See also, Pollard v. E.I. du Pont

de Nemours & Co., 532 U.S. __, __ ; No. 00-763, slip op. at 10

(decided June 4, 2001)(Court will not create limitation on

remedy for civil rights violation where such limitation has

Of course, Congress can restrict the district courts

equity jurisdiction, and has chosen to do so in a variety of contexts. See,

Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 303, 342

(1999) (GINSBURG, J., dissenting), citing Yakus v. United States, 321 U.S. 414,

442, n.8 (1944).

i esieraaciaeiemamaainel rat ssseeneniaaienteaainemanaatee eaten

25a

not been drawn by Congress.). Neither the statute nor the

relevant legislative history in this case presents anything

that even comes close to the degree of clarity that is required

by the Supreme Court.

B. Ancillary remedies are at issue in this case.

Santa Fe’s brief repeatedly argues that the

“preventive relief” allowed under 42 U.S.C. 2000a-3(a) is

limited to “those injunctive remedies such as injunctions,

re[s]training orders and other such orders.” Appellee Brief,

p. 16. This argument is conclusory and sidesteps the

question before the Court: is ancillary equitable relief

allowed under 42 U.S.C. 2000a-3(a)? Santa Fe contends that

a statute’s provision of injunctive relief (with no other

enumerated relief) precludes the district courts from access to

the full range of their traditional equitable jurisdiction. The

Supreme Court, however, has made it clear that the other

types of equitable remedies (unless plainly restricted from

the district courts’ jurisdiction by Congress) are “ancillary

to” injunctions, “adjunct to” injunctions, or “incident to”

injunctions. See, Porter v. Warner Holding Co., 328 U.S. 395,

398 (1946); Chauffeurs, Teamsters and Helpers, Local No. 391 v.

Terry, 494 U.S. 558, 570 (1990)(“a monetary award

‘incidental to or intertwined with injunctive relief’ may be

equitable.” (quoting Tull v. United States, 481 U.S. 412, 424

(1987))). This point of law has been repeatedly recognized

by both the United States Supreme Court and the circuit

courts in a broad array of statutory schemes:

1. Intellectual Property. “Prior to the Copyright

Act of 1909, there had been no statutory provision for the

recovery of profits, but that recovery had been allowed in

equity both in copyright and patent cases as appropriate

equitable relief incident to a decree for an injunction.”

Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 399

(1940) (citing, Stevens v. Gladding, et al. 17 How. 447, 455

(1854)).

26a

2. Price Controls. In the context of emergency price

control regulation, the Supreme Court has stated that:

“a decree compelling one to disgorge profits

acquired in violation of the Emergency Price Control

Act may properly be entered by a District Court once

its equity jurisdiction has been invoked. * * *.

An order for the recovery and restitution of illegal

rents may be considered a proper “other order”

under either of two theories:

(1) It may be considered as an equitable adjunct to an

injunction decree * * *.

(2) It may be considered as an order appropriate and

necessary to enforce compliance with the Act.”

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)

(emphasis added).

3. Securities Laws. 15 U.S.C. 78u(d)(1) (which is

described in the heading of 15 U.S.C. 78u(d) as “Injunction

proceedings”) proscribes insider trading with the

enforcement mechanism of “an action in the proper district

court... and upon a proper showing a permanent or

temporary injunction or restraining order shall be granted

without bond.” No mention of any ancillary or included

remedy to injunctive relief is made explicit in the statute, but

the Ninth Circuit has noted that “The power of a district

court to impose a receivership or to grant other forms of

ancillary relief does not in the first instance depend ona

statutory grant of power from the securities laws. Rather,

the authority derives from the inherent power of a court of

equity to fashion effective relief.” S.E.C. v. Wenke, 622 F.2d

1363, 1369 (9" Cir. 1980)(emphasis added) (Citations

omitted). The ancillary relief has included orders for

disgorgement. See, e.g., S.E.C. v. First Pacific Bancorp, 142

F.3d 1186, 1191-1193 (9" Cir. 1998); S.E.C. v- Randolph, 736

F.2d 525, 529 (9 Cir. 1984).

4. Fair Trade Laws. 15 U.S.C. 53(b), is headed

“Temporary restraining orders; preliminary injunctions,”

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and mentions only injunctions (preliminary and permanent)

and temporary restraining orders as remedies: there is no

provision for “other orders.” Concerning 15 U.S.C. 53(b),

this Court has, however, noted that “the power to enjoin is

part of what used to be the jurisdiction of equity” and has

held that “Congress, when it gave the district court

authority to grant a permanent injunction against violations

... also gave the district court authority to grant any

ancillary relief necessary to accomplish complete justice

because it did not limit that traditional equitable power

explicitly or by necessary and inescapable inference.” FTC

v. H.N. Singer, Inc., 668 F.2d 1107, 1112-1113 (9th Cir.

1982)(emphasis added)); see also Reebok Int'l, Ltd. v.

Marnatech Enter., Inc., 970 F.2d 552, 560 (9th Cir. 1992). In

FTC v. Pantron I Corporation, 33 F.3d 1088, 1102 (9" Cir.

1994), the Ninth Circuit held that “monetary equitable

relief” (in the form of restitution or disgorgement of profits)

was appropriate ancillary relief under 15 U.S.C. 53(b).

2. Food and Drug Regulation. 21 U.S.C. 332 is

headed “Injunction proceedings” and it grants jurisdiction

to the district courts for injunctions and restraining orders.

No other form of relief is mentioned. Still, the Sixth Circuit

held that it was “not established that the FDCA by ‘a

necessary and inescapable inference, restricts the court’s

jurisdiction in equity.’ Nothing in the FDCA explicitly

precludes a district court from ordering restitution.” United

States v. Universal Management Services, Inc., 191 F.3d 750, 762

(6" Cir. 1999).°

In light of the foregoing examples, it is clear that the

mere fact that a heading only mentions “injunctions” or

. The Sixth Circuit's decision was so thorough that it

distinguished (as superceded by Mitchell v. DeMario Jewelry, 361 U.S. 288

(1960)) a Ninth Circuit case (United States v. Parkinson, 240 F.2d 918 (o*

Cir. 1956)) that has never been cited by the Ninth Circuit in a published

case.

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“injunctive relief” is not at all indicative of a legislative

intent to limit the full range of equitable relief. If Santa Fe

were correct, then the Supreme Court and the Ninth Circuit

has repeatedly been wrong, in consistently recognizing the

availability of equitable “monetary relief” (whether in the

form of an accounting for profits or in another form of

restitution) in cases involving statutes enforceable only by

injunctions by their express terms. This availability of

additional equitable remedies is not surprising: restitution,

accounting for profits, and disgorgement are part and parcel

to “injunctive relief.” Thus, these other remedies complement

injunctive relief just as back pay under Title VII is not legal

“damages” but is “an integral part of the equitable remedy

of reinstatement” (see, Slack v. Havens, 522 F.2d 1091, 1094

(9" Cir. 1975) (citing Albemarle Paper Co. v. Moody, 422 US.

405 (1975))). Similarly, disgorgement is an integral part of

the remedy of injunction.

VI. The Enforcement of Title III of the ADA Will Benefit

with the Use of the Disgorgement Remedy.

Santa Fe understands that “the goal in 42 U.S.C. §

12188(a)(1) is to allow quick access by disabled individuals

to public accommodations by the use of a wide range of

injunctive remedies.” Appellee Brief, pp. 20-21. Santa Fe,

however, questions whether recognition of the availability

of claims for unjust enrichment would be beneficial to the

enforcement of Title III of the ADA in this case. Appellee

Brief, p.22. The benefit is clear upon considering and

understanding the nature of Title III of the ADA, the

purpose of Title III of the ADA, the importance of private

attorneys general in enforcement, and the nature and benefit

of the disgorgement remedy.

29a

A. The nature of ADA Title III

Title III of the ADA is in the nature of a public

nuisance law, which at common law was “an act or

omission ‘which obstructs or causes inconvenience or

damage to the public in the exercise of rights common to all

Her Majesty’s subjects.” Tull v. United States, 481 U.S. 412,

420 (1987)(citations omitted). With regard to the Clean

Water Act, the Supreme Court has noted that “The objective

of this statute is in some respects similar to that sought in

nuisance suits, where courts have fully exercised their

equitable discretion and ingenuity in ordering remedies.

E.g. Spur Industries, Inc. v. Del E. Webb Development Co., 108

Ariz. 178, 494 P.2d 700 (1972); Boomer v. Atlantic Cement Co.,

26 N.Y.2d 219, 257 N.E.2d 870 (1970).” Weinberger v. Romero-

Barcelo, 456 U.S. 305, 314, fn. 7 (1982). Clearly, district courts

should be permitted to exercise similar equitable discretion

and ingenuity in ordering remedies to violations of Title III

of the ADA.

B. The purpose of the ADA.

Congress enacted the Americans with Disabilities

Act of 1990 (ADA) for the following purposes:

(1) to provide a clear and comprehensive mandate for the

elimination of discrimination against individuals with

disabilities;

(2) to provide clear, strong, consistent, enforceable,

standards addressing discrimination against

individuals with disabilities;

(3) to ensure that the Federal Government plays a central

role in enforcing the standards established in this Act on

behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth

amendment and to regulate commerce, in order to

address the major areas of discrimination faced day-

to-day by people with disabilities.

30a

42 US.C. 12101(b). (Emphasis added.)

The congressional findings (see, 42 U.S.C. 12101), the

purposes of the ADA and the enforcement scheme of Title

III of the ADA make it plain that Congress sought to place

discriminatory conduct affecting the disabled in the same

category (and to afford the disabled the same powerful tools

of enforcing laws prohibiting discrimination) as

discrimination on the basis of race, color, sex, national

origin, religion, or age.°

C. Enforcement through private attorneys general.

While Plaintiffs do not urge the Court to engage in

fact-finding or equity-weighing (see, supra at 2-3), it may be

noted that Santa Fe does not deny that, for over a month

after the Complaint was filed, it continued to operate at least

one of its buses in violation of the ADA - and that the

withdrawal of the bus from service was “due to mechanical

problems” -- and not in an effort to comply with the ADA.

Nor does Santa Fe deny that its course of conduct provided

it with economic benefits. In fact, Santa Fe’s notation that

“injunctive relief was rendered moot” (Appellee Brief, p.22)

underscores one of the economic benefits accruing to Santa

Fe -- the avoidance of paying the Plaintiffs’ attorneys fees in

this case.

The avoidance of the payment of attorneys fees

presents a sharp irony: the district court’s opinion (and

Santa Fe’s brief) centered on dicta in this Court's decision of

See also, Crawford v. Indiana Dept. of Corrections, 115 F.3d

481, 486 (7th Cir. 1997) (The Americans with Disabilities Act was cast in

terms not of subsidizing an interest group but of eliminating a form of

discrimination that Congress considered unfair and even odious. The

Act assimilates the disabled to groups that by reason of sex, age, race,

religion, nationality, or ethnic origin are believed to be victims of

discrimination.)

3la

Fischer v. SJB-P.D. Inc., 215 F.3d 1115 (9" Cir. 2000) - a case

which emphasized (and had as the only issue before it) the

availability of attorneys fees. Furthermore, the Supreme

Court has recently considered the possibility of defendants'

"unilaterally mooting an action before judgment in an effort

to avoid an award of attorney's fees" and dispelled that

possibility as "only materializ[ing] in claims for equitable

relief, for so long as the plaintiff has a cause of action for

damages, a defendant's change in conduct will not moot the

case." Buckhannon Board & Care Home, Inc., v. West Virginia

Dept. of Health and Human Resources, 532 US. mints aimee OOD

99-1848, slip op. at 10 (Decided May 29, 2001). This

“mooting an action before judgment”, of course, is precisely

what has happened in this case.

D. Disgorgement comports with the purpose of ADA

Title III enforcement.

Santa Fe implies that it is impossible under any set of

facts for a district court to order the sort of accounting for

profits sought in this case. Appellee Brief, pp. 20-21.

However, it is clear that the full breadth of equity

jurisdiction is retained by the district courts under 42 U.S.C.

2000a-3(a). See, supra, at 13-18. It is also clear that the

disgorgement of unjust enrichment is favored by the courts

as the authority to order disgorgement derives from the

broad equitable powers given courts under the securities

laws “to provide such remedies as are necessary to make

effective the congressional purpose.” J.]. Case Co. v. Borak,

377 U.S. 426, 433 (1964). Clearly, the congressional purpose

of “the elimination of discrimination against individuals

with disabilities” is aided when persistent violators of the

ADA are required to disgorge profits associated with the

continued violation.

A disgorgement remedy would serve a particularly

useful role as preventive relief if applied in the United States

District Court for the District of Nevada. Such usefulness is

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evident upon a review of a denial of an injunction where

Judge Hunt (the same judge whose decision is being

appealed in this case) recognized that the defendants were

in violation of Title III of the ADA, but wrongly applied the

"barrier removal" standard’ to “new construction.”*® Long v.

Coast Resorts, Inc., 32 F. Supp.2d 1203, 1212 (D.Nev. 1998).

Thus, the district court was “loathe to grant injunctive

relief.” Id. Accordingly, the United Stated District Court for

the District of Nevada has effectively licensed an ongoing

violation of the ADA - in order to save the violator’s money.

Clearly, if disgorgement of the savings of the violator had

been a remedy which was considered by the district court,

the violator would have had a very strong financial

incentive to comply with the ADA ina prompt manner. As

it now stands in Nevada, violators of Title III of the ADA

repeatedly appeal to the district court’s equitable

jurisdiction in order to avoid the plain terms of the ADA

and its legislative regulations. If the full scope of the district

courts’ equitable jurisdiction is allowed to the district courts,

then the district courts will not only be able to use their

: Applicable to ADA Title III compliance at facilities

existing before the effective date of the ADA and requiring only

accessibility that is “easily accomplishable and able to be carried out

without much difficulty or expense.” 42 U.S.C. 12181(9).

. Under 42 U.S.C. 12183, requirements for new

construction are far more exacting than "readily achievable barrier

removal," and covered entities must comply with the ADAAG, except in

very limited circumstances that were specifically identified by Congress.

28 C.F.R. § 36.401. See also Coalition of Montanans Concerned With

Disabilities, Inc. v. Gallatin Airport Auth, 957 F. Supp. 1166, 1168 (D. Mont.

1997) (“The overall policy of the ADA is to require relatively few changes

to existing buildings, but to impose extensive design requirements when

buildings are modified or replaced.”) Cf. Rose v. United States Postal

Service, 774 F.2d 1355, 1361 (9 Cir. 1984) (Duty to comply with

Architectural Barriers Act not abrogated by “high costs” which were

avoidable by compliance with the law).

33a

equitable discretion to permit ongoing violations of the

ADA, but they will also be able to affix a cost to the equitable

licensing of violations by requiring disgorgement of the .

profits occasioned by maintenance of the ongoing violation.

It is clear that disgorgement is “preventive” in its

effect: “[T]he order of disgorgement may serve to deter

future violations. As the Supreme Court has noted in a

similar context: ‘Future compliance may be more definitely

assured if one is compelled to restore one’s illegal gains.’”

Commodity Futures Trading Commission v. CO Petro Marketing

Group, Inc., 680 F.2d 573, 583 (9 Cir. 1982), quoting Porter v.

Warner Holding Co., 328 U.S. 395, 400 (1946). See also, U.S. v.

Bonano Organized Crime Family, 683 F. Supp. 1411, 1448-1449

(E.D.N.Y. 1988) (“disgorgement has been found to be an

appropriate, non-punitive, ancillary equitable remedy in the

securities and commodities law area which deprives

wrongdoers of their ill-gotten gains and deters future

violations.” ).

. Unlike damages, the purpose of disgorgement is not

to “make whole” the aggrieved parties. Rather, “the

purpose of disgorgement is to deprive a person of ‘ill-gotten

gains’ and prevent unjust enrichment.” Hateley v. S.E.C., 8

F.3d 653, 655 (9" Cir. 1993).

The focus on the activity of the violator (and not the

injury to the aggrieved party) is emphasized when

considering to whom disgorgement is paid: “Once the

primary purpose of disgorgement has been served by

depriving the wrongdoer of ill-gotten gains, the district

court has broad discretion in determining the disposition of

the disgorged funds.” S.E.C. v. First Pacific Bancorp, 142 F.3d

1186, 1192 (9" Cir. 1998). Similarly, disgorgement is not

rendered unavailable by the mere fact that it is only the

34a

violator’s financial gain’ that is at issue (and not any

pecuniary loss on the part of the persons whose rights have

been violated). See, e.g., Edwards v, Lee’s Administrator, 96

S.W.2d 1028, 1032 (Ky. 1936) (ordering an accounting for

profits to owners of land with a cavern beneath where

neighbors with access to the cavern had given tours of the

cave for hire without compensating the landowners). See

also, U.S. v. Bonano Organized Crime Family, 683 F. Supp.

1411, 1449 (E.D.N.Y. 1988) citing S.E.C. v. Tome, 833 F.2d

1086, 1096 (2d Cir. 1987) (“the primary purpose of

disgorgement is to prevent unjust enrichment regardless of

whether any victims are entitled to damages.”)

VII. Conclusion

“The plain language of [42 U.S.C.] 12188(a)(1) is

clear and unambiguous, and it can be understood without

reference to any other statutory provision.” Botosan v. Paul

McNally Realty, 216 F.3d 827, 832 (9" Cir. 2000). The grant of

jurisdiction for injunctive relief and “other orders” provided

in 42 U.S.C. 2000a-3(a) presumptively includes all forms of

equitable relief ancillary to injunctions. No limitation (and

certainly no clear limitation) of equitable jurisdiction has

been set forth by Congress. Just as awards of back pay are

complementary to reinstatement, so are awards of

disgorgement complementary to injunction: the ancillary

relief covers the period of time prior to the district court's

ordering the injunctive relief and removes the incentive that

a violator of the civil rights law otherwise has to postpone

. Or, perhaps more accurately, “negative unjust

enrichment” which consists of the unjust avoidance of a loss. See, Reich

v. Continental Casualty Co., 33 F.3d 754, 756 (7 Cir. 1994) (citing 1 Dan R.

Dobbs, Law of Remedies § 509, pp. 802-03 (2d ed. 1993); Dan B. Dobbs,

Handbook on the Law of Remedies: Damages-Equity-Restitution § 4.5,

p.278 (1973)

35a

compliance with the law. Such effect is clearly “preventive”

and is consonant with the prompt enforcement of Title III of

the ADA. Clearly, the district court should be allowed to

exercise its equitable discretion in this case to award

complete relief.

Respectfully Submitted this 11th day of June, 2001.

/s/

RICHARD F. ARMKNECHT, III, ESQ.

7862 South Danish Downes Court

Salt Lake City, Utah 84121

(801) 942-3804

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.