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DOPICO v. GOLDSCHMIDT

July 24, 1981

Rhea DOPICO, David Dopico, Muriel Zgardowsky and Vincent Zgardowsky, individually and on behalf of all others similarly situated, Plaintiffs,
v.
Neil E. GOLDSCHMIDT, individually and in his capacity as Secretary of the United States Department of Transportation; Theodore C. Lutz, individually and in his capacity as Administrator of the United States Urban Mass Transportation Administration; Hiram J. Walker, individually and in his official capacity as Regional Director of the Urban Mass Transportation Administration, Region II; Tri-State Regional Planning Commission; Metropolitan Transportation Authority; New York City Transit Authority; Manhattan and Bronx Surface Transit Operating Authority; Staten Island Rapid Transit Operating Authority; Richard Ravitch, individually and in his capacity as Chairman of the Board of the Metropolitan Transportation Authority; Lawrence R. Bailey, Carol Bellamy, Stephen Berger, David W. Brown, Jane K. Butcher, Herbert J. Libert, John F. McAlevey, Ronay Menschel, Daniel T. Scannell, William J. Sheridan, Constantine Sidamon-Eristoff, Robert F. Wagner, Jr., and Robert T. Waldbauer, as Members of the Board of the Metropolitan Transportation Authority, New York City Transit Authority, and Manhattan and Bronx Surface Transit Operating Authority; John D. Simpson, individually and in his capacity as Executive Director of the Metropolitan Transportation Authority; Edward I. Koch, individually and in his capacity as Mayor of the City of New York; New York City Department of Transportation; and Anthony Ameruso, individually and in his capacity as Commissioner of the New York City Department of Transportation, Defendants; DISABLED IN ACTION OF METROPOLITAN NEW YORK, Joseph Deriso, Vincent Venditti, Sally Wetzler, and Bernadino Delacruz, individually and on behalf of all others similarly situated, Plaintiffs, v. Neil E. GOLDSCHMIDT, individually and in his capacity as Secretary of the United States Department of Transportation; Theodore C. Lutz, individually and in his capacity as Administrator of the United States Urban Mass Transportation Administration; Hiram J. Walker, individually and in his capacity as Regional Director of the Urban Mass Transportation Administration, Region II; Metropolitan Transportation Authority; New York City Transit Authority; Manhattan and Bronx Surface Transit Operating Authority; Richard Ravitch, individually and in his capacity as Chairman of the Metropolitan Transportation Authority; Lawrence R. Bailey, Carol Bellamy, Stephen Berger, David W. Brown, Jane K. Butcher, Herbert J. Libert, John F. McAlevey, Ronay Menschel, Daniel T. Scannell, William J. Sheridan, Constantine Sidamon-Eristoff, Robert F. Wagner, Jr., and Robert T. Waldbauer, as Members of the Board of the Metropolitan Transportation Authority, New York City Transit Authority, and Manhattan and Bronx Surface Transit Operating Authority; John D. Simpson, individually and in his capacity as Executive Director of the Metropolitan Transportation Authority; Edward I. Koch, individually and in his capacity as Mayor of the City of New York; New York City Department of Transportation; and Anthony Ameruso, individually and in his capacity as Commissioner of the New York City Department of Transportation, Defendants



The opinion of the court was delivered by: WEINFELD

These are consolidated class actions in which plaintiffs, individually and representing all wheelchair-bound handicapped individuals, seek declaratory and injunctive relief to compel the defendants to comply with various statutes and regulations enacted by the Congress to implement the policy that the handicapped have the same right as other persons to use mass transportation facilities and services.

The defendants fall into two categories, federal and local. The defendants Goldschmidt, Lutz and Walker, officials of the United States Department of Transportation ("DOT") and the Urban Mass Transportation Administration ("UMTA"), will be collectively referred to as the "federal defendants" or, alternatively, as UMTA; the remaining defendants, the Metropolitan Transportation Authority ("MTA"), the New York City Transit Authority ("TA"), the New York City Department of Transportation ("NYCDOT"), and other authorities and agencies, their members, and members of the City government, will be collectively referred to as the "local defendants." The federal defendants grant mass transit assistance to local communities pursuant to statutes and regulations promulgated thereunder; the local defendants are the recipients of such funds, which are granted pursuant to appropriate applications to the federal agencies.

The essence of the claims against the local defendants is that they have deprived wheelchair users of mass transportation by failing to provide an accessible system for them. *fn1" The essence of the claims against the federal defendants is that they have approved transit grants to the local defendants when they knew or should have known that those defendants had failed to make satisfactory "special efforts," *fn2" as required by statutes, to provide accessible transportation to the handicapped. In consequence, plaintiffs claim that the practice of the defendants prevents the integration of class members into the mainstream of society, impairs their employment and educational opportunities, and deprives them of their rights under statutes enacted for their benefit and under the Fifth and Fourteenth Amendments of the United States Constitution.

 The Requested Relief

 Plaintiffs seek declaratory and injunctive relief that would, among other matters, require this Court to appoint a special master to make recommendations to the Court with respect to (i) the determination of the amount of funds defendants failed to spend or misspent on "special efforts"; (ii) oversee consultation with plaintiffs' class and their representatives by the defendants; (iii) monitor and report to the Court on defendants' implementation of required plans until the system is accessible; (iv) recommend to the Court any additional orders which the special master believes necessary to enforce the rights of the plaintiffs' class. Further, plaintiffs seek expenditure of "special efforts" funds and ask that this Court retain jurisdiction until all the requirements of the Court and the judgment to be entered herein are satisfied.

 There are two motions now before the Court. The local defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaints for failure to state a claim upon which relief can be granted; the federal defendants move pursuant to Rule 56 for summary judgment. While involving the same statutes and regulations, the motions present in most respects fundamentally different issues and so they will be considered separately (just as they have been briefed separately).

 The Statutes

 Federal assistance to states and localities for mass transit is generally provided under § 3 of the Urban Mass Transportation Act of 1964 (as amended) (the "UMT Act") *fn3" for discretionary capital grants, § 5 of the UMT Act *fn4" for operating and capital subsidies pursuant to a federal formula, and under the mass transportation provisions of the Federal-Aid Highway Act of 1973 (as amended). *fn5"

 Beginning in 1970, Congress enacted various provisions with the goal of advancing the rights of the elderly and handicapped persons in the use of public mass transportation. Thus, in 1970, Congress passed § 16 of the UMT Act, which declares it to be national policy

 
that elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and designing of (such) facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured. *fn6"

 Further, the section provides that all programs assisting mass transit should contain provisions implementing this policy.

 In 1973, Congress passed § 504 of the Rehabilitation Act of 1973, patterned after Title VI of the Civil Rights Act of 1964, which, as amended, provides that

 
(no) otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. *fn7"

 The Federal-Aid Highway Act of 1973, as amended in 1974, provides that transportation projects funded under that Act must be planned, designed, constructed, and operated to allow effective utilization by, among others, the non-ambulatory wheelchair-bound, and the Secretary of Transportation shall not approve any program not complying with these provisions. *fn8"

 Plaintiffs predicate their claims upon these statutes, the regulations promulgated thereunder, and also under § 315 of the Department of Transportation and Related Agencies Appropriations Act of 1975, which provides that no funds available under the Act for the fiscal year ending June 30, 1975 shall be authorized for the purchase of subway cars or buses unless they are designed to meet the needs of the elderly and handicapped. *fn9" Taken together, these statutes indicate that the Congressional approach for achieving the national goal of effective and efficient transportation for all citizens is based upon federal funding and administrative oversight of local planning.

 The Regulations

 There are two basic sets of regulations promulgated in furtherance of the above statutes. *fn10" The first, which became effective in 1976, are known as the "special efforts" regulations. They required the creation of a Metropolitan Planning Organization ("MPO"), which, in New York, is the Tri-State Regional Planning Commission, a defendant herein. The MPO is responsible "for carrying out the urban transportation planning process ... and shall develop the planning work programs, transportation plan, and improvement program (("TIP")) ... (and) shall be the forum for cooperative decisionmaking by principal elected officials." *fn11" The TIP is a "staged multiyear program of transportation improvements including an annual element." *fn12" "Annual element" is defined as "a list of transportation improvement projects proposed for implementation during the first program year." *fn13" The purpose of the TIP is to identify transportation improvements for a particular program period, indicate priorities, estimate costs, and group improvements of similar urgency. *fn14" The annual element of the TIP sets forth the projects being funded for that fiscal year. *fn15"

 UMTA must determine that a program conforms to the regulations and thus certify it for federal funding. *fn16" Among other things, the TIP must include satisfactory "special efforts" in planning public mass-transit facilities so that they can effectively be used by the elderly and the handicapped. *fn17" Thus, the locality must demonstrate genuine, good-faith progress in planning services for disabled persons *fn18" and "reasonable progress" in implementing previously approved projects. *fn19"

 The second set of regulations was promulgated in 1979. They were necessitated when President Ford directed the Department of Health, Education and Welfare to establish guidelines for all agencies in implementing § 504 of the Rehabilitation Act. *fn20" The HEW guidelines require "mainstreaming" the handicapped and permit separate treatment only when necessary. "In the context of public transportation, "mainstreaming' means the physical integration of the handicapped with other members of the traveling public." *fn21" Thus, in the mass transportation area, each mode of transportation must be accessible to the handicapped. *fn22" Inasmuch as the "special efforts" regulations did not require such mainstreaming, DOT was compelled to promulgate new regulations.

 These were issued pursuant mainly to § 504 of the Rehabilitation Act and also pursuant to § 16 of the UMT Act and § 165(b) of the Federal-Aid Highway Act. *fn23" They are known as the "504 regulations" and mandate, with certain exceptions, that transportation systems be made accessible by July 2, 1982. *fn24" A program is deemed to have achieved accessibility "when viewed in the entirety, it is accessible to handicapped persons." *fn25" The regulations establish various criteria for determining when the different kinds of mass transit shall be deemed to have achieved "program accessibility."

 Thus, a fixed-route bus system *fn26" has achieved "program accessibility" when it is accessible to handicapped persons who can use steps and when the system, viewed in its entirety, is accessible to wheelchair users; with respect to the latter aspect, this means that "at least one-half of the peak-hour bus service must be accessible and accessible buses must be used before inaccessible buses during off-peak hours." *fn27" While the deadline to achieve this goal is July 2, 1982, extraordinary structural changes to, or replacement of, existing equipment need not be accomplished for ten years. *fn28" Similarly, subways must achieve accessibility by July 2, 1982, but extraordinary structural changes may be made over a period of thirty years, provided that steady progress toward accessibility be made during that time. With respect to subway station accessibility, all stations must be accessible to handicapped persons who use steps, and "key" stations (those with heavy usage, at transfer and end points, and serving major activity centers like schools and health-care facilities) must be accessible to wheelchair users. *fn29"

 If full program accessibility is not achieved by July 2, 1982, then there must be assurance of interim program accessibility until full accessibility is achieved. The standards for interim accessibility are to be developed in cooperation with a local advisory group of the handicapped, and during the interim period states and localities must spend two percent of the funds received pursuant to § 5 of the UMT Act *fn30" on interim transportation. *fn31"

 The regulations also provide for paratransit systems, which are "those forms of collective passenger transportation which provide shared-ride service to the general public or special categories of users on a regular basis and which do not necessarily operate on fixed schedules or over prescribed routes." *fn32" Paratransit systems have the same program accessibility requirements as other components of public transportation. *fn33"

 Plaintiffs' Claims

 Plaintiffs, as already noted, allege violations of the above statutes and regulations and also of the Federal Constitution. In broad sweep, they allege that although no special efforts were made between 1970 and 1976 by the local defendants to plan and design accessible public mass transportation in New York City, the federal defendants continued to fund the programs of the local defendants. However, their charges focus primarily upon alleged "special efforts" shortcomings in specific fiscal years. An outline of plaintiffs' claims with respect to the TIP of each fiscal year is necessary in order to understand the rights which they claim were violated and the defendants' motions challenging the asserted claims.

 Fiscal Year 1977-78

 The TIP for this fiscal year contemplated the purchase of one hundred minibuses to be equipped with level-change devices and safety and accessibility features for wheelchair users. The buses were to be run on fixed routes selected by a special task force. The project was budgeted at $ 5,000,000.

 Plaintiffs charge that although the minibus project was to be used by able-bodied as well as handicapped persons, the local defendants attributed the entire cost, not just the accessibility features, to "special efforts." They further charge that the federal defendants approved the project not only in disregard of the recommendations of the disabled community but also upon an erroneous determination that the minibus program satisfied the special-efforts requirements based upon a finding that the local defendants had designed and planned an urban mass transportation system which assured accessibility to handicapped persons, including wheelchair users. The plaintiffs further allege that the federal defendants, contrary to a long-standing practice, in this instance allowed the local defendants to allocate the entire cost of the minibuses against their special-efforts obligations.

 The only bid for the minibus project was $ 8,750,000, which was 75% higher than the $ 5,000,000 budgeted. Thus, in May 1980, UMTA permitted the local defendants to switch the funds previously allotted to the minibus project to the purchase and installation of hydraulic wheelchair lifts on 200 of 837 Grumman Flexible buses previously ordered in March 1979 and the purchase of seven additional buses equipped with lifts. UMTA deemed this amendment to satisfy fully the special-efforts requirements for 1977-78.

 Plaintiffs, however, press their original claim; they allege that defendants have failed to comply with their special-efforts obligations with respect to the funds made available, although not used, for the aborted minibus program. They charge that the more than two-and-a-half year delay that ensued between the approval of the minibus project and approval of the wheelchair-lift substitution, was the result of ineptitude and poor planning by the local defendants; that when the switch was made for the installation of the 200 hydraulic lifts on previously ordered buses and the purchase of seven new buses, the handicapped groups were not consulted; that in the instance of the seven new buses, the full cost thereof was credited to "special efforts" although the major portion of the cost was not for the benefit of the elderly or handicapped. The ultimate grievance is that although $ 5,000,000 has been budgeted for "special efforts" within the above fiscal period, the earliest that accessible transportation can be expected is sometime in 1981.

 Fiscal Year 1978-79

 The major special-effort feature of the annual element of this fiscal year's TIP was a paratransit service system, a supplement to public mass transit that provides door-to-door transportation using taxi services or vans. After a preliminary review by UMTA in the summer of 1978 indicated that the City was not demonstrating sufficient special efforts, Mayor Koch on November 1, 1978 issued a special directive to the NYCDOT to develop and implement a paratransit system to meet the special-efforts requirements. The paratransit program was to operate on a subscription basis, upon advance reservation, and also on demand. The system would function for only seventeen hours per day in contrast to the City's mass transit system, which requires no reservation and operates twenty-four hours per day. The program was contemplated as part of an accessible multi-modal transportation system for the entire City. The concept was to provide "high quality coordinated transportation services."

 Largely in reliance on the Koch directive, UMTA approved the TIP for this fiscal year with conditions, including a requirement that the local defendants implement the paratransit program by January 1, 1980. The plaintiffs charge that with the exception of an implementation schedule, the local defendants have failed to meet the conditions of approval; that the schedule failed to provide for prompt initiation of "13(c) negotiations" with labor unions as required by 49 U.S.C. § 1609; that UMTA failed to monitor closely the local defendants' progress in implementation of the paratransit plan; that the local defendants have not only failed to implement the plan on the scheduled dates but that no new implementation date has been set and no funds have as yet been expended for the purchase of paratransit services or equipment; and that the entire plan is inadequate since it is based upon an incorrect estimate as to the population and trip demand of handicapped persons in New York City.

 Fiscal Year 1979-80

 The major special-efforts component of this year's TIP was the same paratransit system as in the last year's. Although implementation of the program had been substantially delayed, UMTA determined that there was sufficient evidence of reasonable progress to find that the special-efforts requirements were being satisfied. This was based in part on the role of the paratransit system as the part of the entire highly coordinated system that tied the special-efforts program together.

 Plaintiffs, in addition to continuing their fundamental objections to the paratransit system, contended that UMTA approved it as satisfying the special-efforts requirements though there was no tangible evidence of progress. Not only had no funds from the previous year actually been spent, plaintiffs charge, but, at the time the 1979-80 TIP was approved, NYCDOT had already reduced the number of vehicles to be in the paratransit program without informing UMTA.

 Fiscal Year 1980-81

 The TIP for this fiscal year, approved only two months after the prior year's, is taken almost verbatim from the previous year's. Thus, UMTA again justified approval of the paratransit system toward the special-efforts requirements on the basis of its importance, delays beyond the City's control, and the Mayor's stated commitment to the system. Moreover, UMTA noted that the City's order of 532 new accessible buses, the lifts of which cost $ 5,300,000, was enough to satisfy the special-efforts requirement.

 Plaintiffs press the same objections to the system as before, and furthermore criticize the TIP as demonstrating that UMTA had not seriously reexamined the ...


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