For ADA regulatory mavens only

Under the Americans With Disabilities Act, municipalities have to provide special transportation services to the disabled, particularly for those who need to be picked up and dropped off at home. In Nassau County, this is done through "Able-Ride," which provided door-to-door transportation services. When the County in 2010 modified this service to deal with the budgetary crisis, it got sued for not consulting the public on these cutbacks.

The case is Abrahams v. MTA Long Island Bus, decided on May 5. ADA regulations say that the Department of Transportation has to allow for public participation in the ongoing "development and assessment" of paratransit services. Suing under 42 U.S.C. sec. 1983, plaintiffs argue that defendants violated this mandate. They cannot do so.

Section 1983 allows you to sue if the government has violated a federal civil right. There are limits to this. Under Alexander v. Sandoval, 532 U.S. 275 (2001), the Court said that Congress must intend that federal statutes allow for a private legal claim. In addition, plaintiffs may sue to enforce regulations created to enforce the statute, but to do so, the regulation must merely apply and not expand the statute. This is a subtle but important (and very complicated) distinction that dooms this case.

While the portion of the ADA that gave rise to the regulation may be enforced in a private right of action, the regulation at issue here cannot. The regulation that requires ongoing public participation in the management of paratransit services does not merely enforce that portion of the ADA but, instead, imposes obligations not found in the statute. The Court notes, "the statute requires public participation in connection with the development and submission of a public entity’s initial paratransit plan and annual plan updates. But that is all § 12143 requires in terms of public participation; it does not require any other ongoing form of public participation." Moreover, "the 'ongoing requirement' of 49 C.F.R. § 37.137(c) has a broader application than the implementation of an initial plan or the submission of annual updates." The regulation expands upon the ADA and does not merely enforce it. This means the regulation cannot be enforced under Section 1983.