Amicus Curiae Brief — Lonberg v. City of Riverside

Supreme Court. U S

\(o ag MAY 19 2010

No. 09-1259

OFFIUtE Ur tric CULEHK

jn Whe

Supreme Court of the United States

JOHN LONBERG

he ponde ni

Qn Petition For A Writ Of Certiorars

lo The United States Court Of Appeals

kor The Ninth Cireurt

BRIEF OF AMICUS CURTAI

RICHARD M. SKAFF

IN SUPPORT OF PETITIONER

.

ANDIIEW Jd. DHUES (CHARLES Ga. WENTWORTH

Attorne at iuaw Cour el of Reecord

156 Boynton Avenu WENTWORTH LAW OrrkICES PP.

berkeley, CA 9470% 160 N. Main Street, Suite 204

(510) 528-8200 Gaien llyn, 1h. 6013%

O30) 469-9600

( harle COW ¢ ntworthiawoll (“4 CTT)

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURTAE ... |

REASONS FOR GRANTING THE PETITION 6

| Comphance with the ADA’s Requirement:

by Public Intities Is Virtually Impossible

Without the Establishment of a Prope:

Selfl-KMvaluation and ‘Transition Plan . 7

iW. Mr. Skaff’s Expernence Both as a Public

Official and as a Private latigant Dem

onstrate the Importance of Forcing Public

Mntities to Kstablish and Maintain Self

Mvaluation and ‘Transition Plans 15

A. Mr. Skaff’s Expenence Shows the W1:

dom Behind the Regulations’ Require

ment that Transition Plans Must be in

Place to Effectively Locate and Correct

ADA Violations 1G

Is. Without a Proper ‘Transition Plan Al

ready in Place, Individuals with Di:

abilities are Forced to Litigate ADA

Violations on an After-the Injury, Curb

by-Curb Basi: 20

CONCLUSION 20

PABLE OF AUTHORITIES

Pape

CASK

Ability es: of Crreater loledo U (lily of San

dusky, 385 F.3d 901 (6th Cir. 2004) {>

Alexander v. Sandoval, 5382 U.S. 275 (200]) 8

American Assoc. of People with Disabilitte:s

Dv. Harris, Case No. 07-15004., I Sd

(ath Cir, May 11, 2010), available at httpy/

www.cal luscourts.gov/opimons/ops/Z007 15004

pal 6, 14,17, 18

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

(1Oth Cir. 2003) 6, 10

fverson v City of Boston, 452 F.3d 94 (Ist Cn

2006) &

Lonberg v. City of Riverside, 571 F.3d 846 (9th

(air. Z0O0%) passim

Skaff v. City of Corte Madera, Case No. 4:08-ey

05407 SBA (N.D. Cal.) 20. 23

Southwestern Comty. College v. Davis, 442 US

387 (1979) 13, lo

REGULATION

PABLE OF AUTHORITIES — Continued

Preagre

OTHER AUTHORITE

The ADA and City Governments: Common Prob

lems (Oct. 9, 2008), aquatilable at http Www

ada.gov/comprob. htm

Project Covi Acc avatlabl al http://w WV

ada.pov/civicac. htm

Questions and Answer. About ADA/Section

504, avatlable at http://www.thwa.dot.gov

civilmeht: ada (aa Hntm ‘)

Settlement Apreement Between the United

States of America and the City of San Rafael

California, Under the Amertcans with Di

abilities Act, DPJI# 2O4I-11-272, avatlable at

http://www.ada.gov/SankKataelSA. htm

Title a Lee Anical A: isla ce Manual avatlal

:-2as. 28. 2a, 34

http wWww.ada.vov/tamanZ. html

INTEREST OF THE AMICUS CURIAE’

his case presents the Court with an opportunity

tO recognize that 28 C.F R. § 35.150(d)(1) create:

a private mght of action in individuals to enforce

its requirement that public entities establish Self

Kvaluation and ‘Transition Plans. Such a_ holding

would resolve a mature circuit split between the

hirst, Sixth, and now Ninth Circuits on the one hand

and the lenth Circuit on the other

he resolution of thi question 1 mncredibly im

portant to amicus Richard M. Skall because of his

MWiahhy role a a leader br the busine S community, as

a publ offiqial, as an advocate tor disability rights

and as an individual with disabilities who has had to

briny Suit him elt to entorce the ADA requiremer

In the jurisdictions where he lives and works. Failure

to addre the split will mean that individuals with

disabilitue residing in the First. Sixth. and Ninth

Circuits will be forced to litigate enforcement of the

ADA’s requirements on an alfter-the-injury, curb-by

curb bas} rather than a preemptive chanve that

Pat int to this Courts Rule 37.6, amicus attirms that

counsel for a party authored this bmef in whole or in part, that

rn uch counsel or partly made monetary contribution mtendeda

to fund the preparation or submission of this brief, and that no

person other than amicus curtae or his counsel made a monetary

contribution to its preparation or submission. Pursuant to thi

( puirt rteahe Dt «4 CL71iCU COUT) 1 of record brciVe Cach party

nttlorire \ il | is| ten day Wrilte l nmol ol thy Intent to fale Ltil

bri it) Lrit | ili Corre pondence mentin I t] bitin ol

would allect global ch LP)p7¢ throughout thie othe nding

jurisdiction

As a former mayor and town council member, a

leader in the business community, the director of a

disability-access non-profit corporation, and a para

plepic, Mr. Skaff is uniquely qualified to addr thie

issues facing both public entities and individuals witt

disabilities

Mr. Skafi’s” busine leadership began in tt!

1970s when he manaved a large 250-seat restaurant

on FKisherman Whartin San Iranci coand erved oO!

the Board of the Golden Gate Restaurant A Octal

fs i)

He later spent,five years as thi executive Director of

the bisherman Whart Port ‘Tenant \ MlaLION

In 1981, Mr. Skatl was elected to the Town Cou

cil of Corte Madera. California. and late: erved a

Mayor until 1985. During that time, he served on thi

Marin County Council! of Mayors and Counci!| Mem

ber ) ra | thie founde! amiga Chairpet On ol {tae Ro

Valley Paramedu Authority (County of Marin). and

ai Program Developer Lor Acct Mari | in tt il la |

po ition. he consulted with ¢ ty, County. and State

building department: as well as other State and local

arenche architect enginee! and individuals witt

disabilities to ensure that these entits Were Con

pliant with the ADAS mandate

Later. he wa hired by Mayor Diane Fetnstein 1

create a new Propralth lor thie 5 I) iran Cd) sure iul

f Jsuilding In pection and assure it enforcement

of California Building Code acce requirement tie

Wort c n 1d) I

1 pl il i} [ } ‘ ‘

L rie { ( rit { | (

it (f th he D

ra " for to {| My |) ; }

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the Dey y | VV I

( \ Phil ] [ {

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While workll for the City, My } It U! elled t

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\ pork Colt | ve | Lire y doe Y | Housin

nd one itely } PrCOp Willi ¢ i Lill bie

ntinued I ear Mayor CTT ti] Aglen

vt mnie re I |

\ 1 Line pul [

I Vit } Tt be I Paraple I l ! |

n 19, leaving | paralyzed belo

nec Latil mat ne i \ cha hor mol

hortly iter | pent Nit Katt tou 1 Ul

Viarin Center for Independent (now

I) cl penaent [ erice | ( Lif [) Wi

versaw eliorts t rm ( Die ( rica

V1 rin ( MInLy ina l cit I { | KID L | ts

rif iro! Liye ( ) | ran . Kat]

founded |) ivr ril \ tyle , I | Lit }

’ fit ro ry} it) i i toc cy i .

a) CIV I tie { rl I

| > l |) {

1 Kall i it'd i | [

[ nt I | 1 I} | Crimi

ul Li persol ty

an undue unde Lana 1 | [ I L}

| Le rm) oder me liiatl ' { } . Tv

pte ith disab 1d t Cl . rip) LI

rt ore ilatior pul | lit

ys tLhrouphout the United

Code and regulatory Lraininy

Lale michud rij? bates beauye atl the request of the

Louriana Governor C office hortly after Hurricane

Mr. Skalfl has also traveled extensively to lecture

On ace Ibiity and disability mphts, presenting train

Myif? Wy ilerial about acce public right Of Way, and

emerpency-related issue LO Proups in Japan Portu

gal, and Imeuador, locales that previously had no repu

lations requiring ply ical acce Or thie protection of

the nights of individuals with disatilitye Mis input

Vas instrumental in the creation of new acce Law

and poles mn those countric

Parically, Mey Kadi has, on multiple occasions, had

lo personally bring suil to enforce the ADA require

ment lo allow him acee LO pruitoie prea Sven i}

Pibtarasedpocadibse Where he ones erved a i) elected

Othicial, Pde 4 Uyit personal fagniidsear With Chie

roadbhloct both tavurative and literal that puta

entities | coin Ubi ry Of person bhi Gaisaiboaditye

1 th th backvround that My Kall urp

thie 4 ivt to rant the Petitione: request and j Lif

L hie if l cert ri to the nth Coarcuit Court of

Joyo!

REASONS FOR GRANTING THE PETITION

Phe Ninth Circuit panel below has already ac

Knowledped that opinion, as well as those of the

ruxth Circuits, 1s squarely in conflict: with

of the Jenth Circuit regarding the enforceability

privals Individual of the ADA’ transition plan

repulations. Pet. at 11-21 (citing Alexander ov. San

doval aba Zéty (200)) Lonberp l y Of

Htiverside, 071 b.4d 846 (9th Cir. 2009); Lverson vo. City

Of Boston, 452 3d 94 Ost Cir. 2006); Ability Ctr. of

Greater Lloledo v. City of Sandusky, 385 ¥.3d 901 (6th

(ar. 2004); Chaffin vo. Kan. State hatr Bd., 348% b38d

MO (Oth Cir, Z008)). And the eleventh Circuit re

reached 4 similar result as the Furst, Sixth, and

ATC albeit with re pect to a different

Ameriwan Assoc. of People with DPrsabilitee:

v. ftlarri (rase No. O7-15004 Hd (Jilth Cir

May 11. ZOO). avatlable at http://www.call].uscourt

ops/ZO0 015004 pdf [hereinafter “/flarri:

if }2 Ae i (holding Lhat no ( |: It

) dor nol ale rival rig Of action)

}

repeating that

tablishment of a Sell-lvaluation

lan ois the only way aflect

asi iCipaled “iy required by thie

pecihie example WW Lhe GX)

alflected hit

ii publue entita both from

a public official, and from. the

maiviagual wt disabilitue and

Ntivation

Unless individuals are allowed to bring private

mghts of action to require that public entities adopt

transition plans, the ADA’s non-discrimination poal:

will be frustrated. Plaintiffs will be forced to litigate

on after-the-injury, curb-by-curb bases rather than

compelling public entities to preemptively interact

with the disability community, enabling publie offh

cials lo understand what must be done to comply with

the ADA’s mandates, and thereby create plans that

address those needs globally. The Court should there

fore prant Petitioner’s request for a writ of certiorari

to resolve the circuit spit

Ss Compliance with the ADA’s Requirements

by Public Entities Is Virtually Impossible

Without the Kstablishment of a Proper

Self-i valuation and Transition Plan.

The Ninth Circuit erred when it speculated that

the “existence or non-existence of a transition plan

doe nol by JUS If deny a disabled Person acces. LO a

pubhie entilys service Lonberg, 571 kdd at 65]

Quite to the contrary, and as the DOJ’s Civil Right:

Dpeehion reECcouymnize “When seif-evaluations are not

conducted and transition plans not developed, city

povernments are ill-equipped to implement acc

bilily chanpe required by the ADA.” The ADA and

City Governments: Common Problems (Oct. 9. 2008)

avatlable at http://w WWoada povie OMmiprob htm. In Olney

words, unle a pubhe entity has a complete asse

ment of its facilities, services, and programs, 1 1s in

possible for the entity to effectively plan, budget, and

prepare for the changes necessary to meet the ADA

requireme nt See id. Without a Self-Kvaluation and

Transition Plan, “people with disabilities cannot par

or benechit from the city ervices, program

VEOSI importantly, the creation of a transition

forces public entities to review their properts

tics, and programs so that they know what they

lransition plans are not only there to protect

hts of individ tals with disabilities. They are

essary for the pubhe entities to protect them

from future htipgation by identifying areas of

yrovement and forcing the entities to create a plan

hdr those shortfalls. Only after a plan has been

pleted can an entity demonstrate that it 3 n fact

Nith the ADA’s mandate

ason : » repulation

ured public entities to adopt pelf-hivabscation

ransition Plan by danuary 26 1993. 286 C.F KR

L5OCd 01) ul a yel, only a very smail portion

diction: ave taken the time necessary to di

plas adequate to addre the need

the ADA was adopted, the Attormne

that these plans would be necessa:

event that structural chanpe to facility

undertaken to achieve propram acc Horlity

milicipation of this, the regulations mandated

ansition plat contain at a minimum Lhe

int

> ldentification of physical obstacles tim

iling accessibility of individuals with

disabilities to programs and facilitie:

° A detailed description of the method

that will be used to make the facilitie

ace idole

. Specification of a schedule for taking

Lep GT ed AT y LO CON mito Comphance

and

: Naming the official responsible for im

plementation of the plan

Cdyie example ol Lhe bi porlvance a) tiie sell

( aluation | CCF }y} Lie mstruction provided LO

State and local tran portation department: The led

eral Highway Administration teaches that an “ADA

transition plan is intended to identify system need

and mteprate them with the State; planning pro

( " Questions and Answer About ADA/Section 504

j

avatlable at http://wwwihwa.dot.vov/eivilmehts/ada

|

(ja hitnn

Moreover Lae 1) )J lechnical A iISbLance Man

u explain to State ana local yovernments how to

poll anne prac (¢ Lyi r¢ riulat (iT) Title // Technical

f istance Manual, avattable at http WWW. ON

taman2. html [herematter “ADA Manual}. opecili

ally the ADA Manual Five extensive instruction on

hoy putt Cyibiblie al ¢ LO create and use Lranmsition

plan ld : 1] ‘ AULOLE elf ( Valuation The ie ereuene' 1 |

il Lructl thal if} ernibil hould bye mindtul that

iQ)

although its policies and practices may appear harm-

less, they may result in denying individuals with

disabilities the full participation of its programs, ac

tivities, or services.” Id. This is exactly the harm that

Title Il of the ADA was intended to remedy

And these instructions to State and local author

tics from the Federal povernment’s administi ative

bodies also recopnize the importance of having transi

tion plans in place, both to evaluate current efforts

and to plan for future changes. Indeed, the ADA

Manual notes that once a public entity identifies the

areas of concern in its Communities, “it Should take

unmediate remedial action to eliminate the impedi-

ments to full and equivalent participation.” Jd. (em

phasis added). Further, the manual points out that

“Is|tructural modifications Should be made as

expeditiously as possible, but no later than January

26, 1995” — now more than 15 years ago. /d. Thus the

Tenth Ciresit correctly held that the ADA prants to

Individuals private nghts of action, allowing them to

brings suit to compel public entities to establish such

plans. Chaffin, 34% F.3d at 858. This is because the

requrrements of the regulations and “the type. of

discrimination prohibited [by them| fallf | squarely

within the type prohibited by the ADA itself.” Jd. at

ire

Ode

That the regulations implement the ADA is clear

Indeed, the Ninth Circuit acknowledged as much, ob

erving that “section 35.150(d) was promulgated by

the Attorney General pursuant to § 204 of the ADA

in order to implement & 202." Lonberg, 571 13d at

1 |

851 0.6. Yet, that court still ilopgically held that the

regulations do not create a private right of action. It

reached this decision in part because a public entity

could be ADA comphant without having a transition

plan in place, “in which case, a lawsuit forcing the

public entity to draft such a plan would afford the

plaintiff no meanimyptul remedy.” [d. at 85]

gut the Ninth Circuit's concern was misplaced

Under the hypothetical situation where a publie en

lily is already “fully comphant with § 202 without

ever having drafted a transition plan,” id., meaning

ful 2CCC: would have already been provided, ng) thie I'¢

would be no need for litigation and nothing to remedy

Phe importance of creating and maintaining ef

fective transition plans is again underscored by the

Mederal povernment’s ADA Manual, which it devel

oped to help State and local povernment program

and services comply with ADA requirements. Build

ing on the four “minimum required categories out

lined in 28% Cbekt. § 85.150(d 01), the manual contain

an additional thirteen areas of “careful examination

that publi entitle hould analyze in doing then eit

evaluations. ADA Manual & I1-8.2000, Self-evaluation

‘hhese thirteen areas are as tollow

| Physical barmners to acc

Modification of policn where ne ify

lo avoid exclusion, and justifications for

exclu: 101) Ww hi t¢ fi) modihication will ay

miade

itlective means of communication “with

individuals with impaired hearing. os

peech such re | through TDD “Ol

qually effective telecommunication

tems_

lL tjeader lor individual with sual

Impairment interpreters or other alter

native communication measure Lol

mdivdual With hearing

ind aMmanuUenIse fot bid)

manual impairment

bur

’

Pac €

acuatllon |

during

Sch ECeReeCE A pit

lnipairment

vidual ith

|

Pub C1]

fil Leria |

olen r yf

P«Aatti {

it ryt) ca

: } } | i

i j b> idhe«a il

AA COMP ant

itl i} {|

iil

j i

'

I Lilt ¢ {

Prope Lraining§ tor! public employes

revarding full participation tf indi

viduals with disabilitie

Distineurshing \ 1. former and cut

rent drug users wil setting polici

denying participation in Propram DAased

on aruy usape

ld. ito as the Ninth Circuit determined

nothing: about a public eENnvity

detailed plan and schedule yr achieving such mean

iInglol ace Lonberp

would the government have

thorough ¢ x planation OO]

14

(oo? ily ( olle pe { Davi: 142 \ : Ten 110 (1979)

which by it nature includes the way thie polici are

actually implemented and not Imply the words pul

down on papel by the public entitle

Also, the adoption of a transition plan allow

member a) the COMMUNDILS both individual with

disabilitue and otherwise, to discu what areas of

improvement are most critical. Although there is no

required public-comment period, entitie are strong

ly encouraged to consult with individuals wath di

boadatue and organizations that represent them to

the sell-evaluation proce VDA Manual

1E-&. 2000, Self-evaluation. When done properly hie

rouabodae envuily 1] able to evaluate what needs exist and

et a plan to deal with them in an organized and

ffiment manner. Thu an effective transition plan

miust have public bipul, ana thie public Cncilsre must

first take the time and eftort to pul On I phere LO!

there to be anythin LO COMIMEeNHL ¢

Iti bhiport trace Ol J) if trea i phat 1th

place { [i Lye lll I ¢ Litriile | \ Like tele bith | I

uil recently recognized in maly i] I ther ¢ Cra

LDA nabiin revulatiol Ne LCLELLL CON

tructed for use by pubhe enti must ! ' tote

( I I ) iS i ithe I ¢ ISU racil

Lie miust Iso. bye by] L(t) flay

Lip) CPpitton at Zt

But what that « rt wrnored (| lirst

I qd | bnth Circuit ata tho building |

n mavcicall Dual themsel\ With the requi

accommodations. The ADA’s enacting regulations ar

necessary to the effective implementation of the stat

ule because they give pubhe officials an opportunity

to interact with the disability community in a way

that they, in all likelihood, have never done before

This in tarn educates the officials about the disability

community and forces them to look at the entity

programs and facilities in ways that they never would

have otherwise. Such interaction is at the heart of the

ADA, helping public officials understand how mem

bers of the disability community function both phy

cally and cognitively, and giving those officials thi

empathy that they need toimplement the meaningful

access that this Court has recognized the ADA wa

designed to bring about. Davis, 442 US. at 410

lt is extremely important that individuals be al

lowed to bring suit to compel public entities to estab

lish and maintain the requisite transition plans. Thi

Court should thus issue the writ, and bring the lirst

sixth, and Ninth Cireuits into conformity with the

‘Tenth

i. Mr. Skaff’s Experience Both as a Public

Official and as a Private Litigant Demon

strates the Importance of Forcing Public

Entities to Establish and Maintain Self

Evaluation and Transition Plans

Mr Skatl has wide-ranging busine and put

CLOI CAPCTLE IC during Whit t) at ava \ ned) ¢ {¢

VeELY LO ee that publi eribatye becom md rel

mphant with the ADAS mandat \s noted abovy

his busine expermence began in MOs, toll

bY nearly »Vved a prurtotane ervi ‘ ted }

ppomted official nd fA t that 1) ited

Mire Skatl itlered a tall that left him paralyzed th

t waist down. Uhiuis prmiypury led tise | (

i reatt I bron | [ | Die’ |

pI itty a Deaial |

nd pr tf {

} i

ty t if int vit put '

|) requul ts, Mi kati ha

DiiStil ell lf-] 1}

1] .

\. Mr. Skaff’s Experience Shows the Wis

dom Behind the Regulations’ Require

ment that Transition Plans Must be in

Place to Effectively Locate and Cor

rect ADA Violation:

i. Without a Proper Transition Plan Al

ready in Place, Individuals with Dis-

abilities are Forced to Litivate ADA

Violations on an After-the-Injyury, Curb

by-Curb Basis.

addition to his prove ional Encounter Witt

! plan Mr Kall wh personally felt the

{ { ()] Jif Sinith ( precy ru If? that mdividual

i bficadole oenlorce the ADA repulation Lransition

joi eqquircmciy! i 7 bTya foie Mi } iff 4 CUTTent

| th the town of Corte Madera Over it

I ( pstal Ol bOhi-COMI py rice ith ADA man

heaff uo. City of Corte Madera, ¢ e No. 4:08 -

40, A Ld) Cal.) (docket entries available on

! Af I 1; Jil { Ori plaitil Mis ; Kall cle crmibed (‘fi

i various barners to aces throughout thre

le requested that Cor Mader remove all

fi J rriei { rCCI lor pel ! With d atoalatue

irthies ked for pingunelion ordering the Cait

f | ind eniorce a curb ras [) chedule i }) rt

| lf I [> ! hia] ClOsT] "odd Docket

ONT

Phe town | ved for judpiment on the pleading

rer Ai PLAC aryu rip that jul La Jf) thie instant

Vd kall has no private mypht of action to

@ndorce the Caty Lransilion plan The district court

peed) ‘ranted that motion relyinyv in part Ori the

result. Mr. Skall recovery i now limited to

those particular Curb idewalk ramp and ovunel

parriel LO acce that he has already identilied in hit

daily moverments and in the litigation. Jo affect any

y at IJ i { shnoulde!

Lhae pli Cdlidsle WDUPradeysl i neelenall uSer LO 1n poet

COET curb ranip iu the City to determine whether

they comply with the law. And then he must initiate

new litigation related to eac] nd every ne o] the

( pdormiisy OCALIOT

bya Piciency reated by the Ninth Circuit

Crrot pinton J Layyerin (Corte Madera could

Lia] th the Conegre ional mandate ft

create 1 ¢njorce el{-} tluation and ‘Tras 1OF)

17} rm | { { modi ij j { priorit A. Piuadee ana

p>] fi rOFr ine % recuiol Ol all barrier LO acc J

thie ¢ {) 1 yt ( ) edoain the dlenth Circus

11 kal d request that the district court order

trial c- mid enlorce ic} plan

Pu | Lyi mith Corcust CE Ql vir Kill

i! vidual ith, Gasababitae Who live, wor}

y! 4 Lé 1 Cd miust git) il A|) compl a ijyce

; i ! l 4 | fit tree] at peat il} i|

Carne

! © time a person iu} qd bility en

ounte! ri barner, (hat person has been deprived

then, the lack of a transition plan does, by ttself, deny

person with disabilities access to a public entity:

ervices. Granting certiorarn and reversing the Ninth

Circuit's erroncous decision will not simply resolve a

mature and important circuit split. Jt wall also

effectuate Conyressional intent and pive full meaning

to ‘Title 1]

If the Ninth Circuit is correct, then responsibility

for enforcement of the ADA is placed solely on the

houlders of the DOJ. In 1999, the Department en

gaged in Project Civic Access, whereby it took a small

armpling of 100 cities throughout the country to spot

check those pubhe entities for comphance with ADA

mandates. See Project Crowe Access, available at nttp://

wwwada pov/eivicac htm. One of those municipals

ties Was San Rafael, a town only five miles from

Mii ; Kall S home

While inve ligating pan Ktalacl, the Department

discovered numerous violations of the ADA and

learned that the Citys transition plan and if in)

plementation of it were inadequate. The DOJ then

entered into a settlement agreement with the City, in

Which at required that San Kafael make variou

changes and improvements to its programs and facili

Lis Settlement Apres ment Between the United State:

of America and the City of San Rafael, California,

Under the Amerwans with Disabilities Act, DJ# 204

11-272, available at http-//www.ada-.pov/sankalaeclsA

htm

bout while Mr Skall welcome such settlement

agreements and hopes that more are forthcoming, 1

is ludicrous to beheve that the DOJ will be able to

complete inspection of every building, program, and

facility in the muallions of public entities throughout

the nation. The reality is that meaninptul access wall

only come about when individual plaintiffs are al

lowed to force the same types of settlement apreem

ents with pubhe entities on their own, without having

to watt for the JDOd to appeal at the door: Lep ol every

offending municipality. In short, leaving enforcement

Ol transition plans in the hands of the DOJ will only

guarantee that individuals such as Mr. Skaff are

never be able to receive the meaningful access that

the ADA was ade ined Lo provide

CONCLUSION

In establishing the ADA's transition plan require

ments, Congress and the Attorney General intended

that the regulation ela preemptive Course lo cor

recuing ADA non-comphance in pubhie entities. Ty

failing to recopnize this key facet of the legislation,

the Iurst, Sixth, and Ninth Circuits have put an

meredible burden on the courts, the puble entitie

and most Wniportantly, the individual htigyant with

disabilities who the law was intended to protect

|

The ‘Tenth Circunt reached the proper decision in

determining that andividuals have a private mght of

24

action to enforce the ADA’s transition-plan require

ments by requesting an injunction ordering publi

entities to establish transition plan:

lor all of these reasons and those set forth in the

petition, the Court should issue a writ of certiorari to

the Ninth Circuit Court of Appeal:

Respectfully submitted

ANDKEW J. DHUERY CHAKLES G. WENTWORTH

Attorney at Law Clounsel of Record

456 Boynton Avenue WENTWORTH LAW OFrbricks Pu

Berkeley, CA 94707 460 N. Main Street, Suite 204

Cilen Milyn, tl, 60187

( harles wwentworthlawoflices com

Counsel for Amicus Curiae