Vanko v. Finley (440 F. Supp. 656, 1977)

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, District Judge.

Plaintiff Peter Vanko filed this action on December 14, 1976 against defendant board members of Cuyahoga County’s Regional Transit Authority (hereinafter referred to as “RTA”), then Secretary of Transportation William T. Coleman, Jr., and Robert Patricelli, Administrator of the United States Urban Mass Transportation Administration. Vanko seeks to bring the action both on his own behalf and as representative of the class of “mobility handicapped” individuals within Cuyahoga County. His complaint asks for declaratory and injunctive relief and alleges that the defendants have denied him and other similarly situated individuals access to transportation facilities provided by the RTA in violation of Section 16(a) of the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1612(a); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Department of Transportation and Related Agencies Appropriations Act of 1975, Pub.L. No. 93-391, 88 Stat. 769 (1974); and the Fifth and Fourteenth Amendments to, and commerce clause of, the United States Constitution. The complaint premises jurisdiction upon 28 U.S.C. §§ 1331, 1337, 1343 and 5 U.S.C. § 702.

The affidavit of plaintiff Vanko states that he is confined to a wheelchair due to a birth defect and is employed by the J & B Stamping Company of Brooklyn, Ohio. Although this company is accessible by public transportation, because of his confinement to a 'Wheelchair Vanko cannot utilize the public transit which RTA provides. .

In his prayer for relief, plaintiff asks this court to enter a preliminary injunction enjoining the defendants from taking any action toward the purchase of any mass transit vehicles; to issue a declaratory judgment that the Regional Transit Authority is currently being operated in violation of federal statutory and constitutional provisions; to permanently enjoin defendant RTA board members from operating the RTA in a manner which does not assure effective utilization of the system by the mobility handicapped; and to permanently enjoin defendants Coleman and Patricelli from releasing federal funds to RTA until the system is operated so as to provide for effective utilization by the handicapped. The injunctive prayers for relief are specifically aimed at preventing the release of federal funds to RTA under the terms of a July 28, 1976 RTA application to the Urban Mass Transit Administration for federal financial assistance. This application requests federal funds of $99,547,200 as part of a capital improvements plan totaling $124,434,000.

Both the defendant board members of the RTA (hereinafter the “local defendants”) and Secretary Coleman and Administrator Patricelli (hereinafter the “federal defendants”) have moved to dismiss the complaint or, in the alternative, for summary judgment, and plaintiff has submitted a brief in opposition to these motions. The motions will now be considered and will be treated as motions for summary judgment, since matters outside the pleadings have been submitted to, and considered by, the court in ruling on the motions.

I.

Neither set of defendants have challenged plaintiff’s authority to bring this lawsuit. The court at the outset finds that the plaintiff, Peter Vanko, has standing to bring this action pursuant to Section Ten of the Administrative Procedure Act, 5 U.S.C. § 702, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Bartels v. Biernat, 405 F.Supp. 1012 (E.D. Wis.1975), and that he also has an implied right of action under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Lloyd v. Regional Transit Authority, 548 F.2d 1277 (7th Cir. 1977). The court, therefore, need not, at this point, decide whether plaintiff can maintain a private right of action based upon the other statutes and constitutional provisions relied upon in the complaint.

Although the defendants do not challenge plaintiff’s authority to bring this action, the local defendants contend that the court is precluded from entertaining this lawsuit at this time because of the doctrine of primary jurisdiction. This defense was originally based on the theory that the federal government had not yet acted upon RTA’s grant application and that the completion of federal administrative action is a prerequisite to judicial consideration of this lawsuit. The court has been informed by Mr. Arthur Fitzgerald, Chief Assistant General Counsel of RTA, that federal approval of at least a portion of RTA’s grant application has been obtained since the briefing of the motion at issue. Since the Urban Mass Transportation Administration has acted on the RTA request for federal funding for purchases of additional rolling stock (disagreement over such purchases being the crux of the parties’ dispute in this lawsuit), the court concludes that it has jurisdiction to entertain the action at this time. See also Lloyd v. Regional Transportation Authority, supra, at 1287.

A second procedural defense raised by the local defendants is that the plaintiff has failed to join the Regional Transit Authority as a party defendant and that the RTA is an indispensable party for the purposes of Rule 19 of the Federal Rules of Civil Procedure. The court agrees with these defendants that the RTA as a corporate body should be joined as a defendant to this lawsuit. This does not mean, as the local defendants argue, that plaintiff’s lawsuit must be dismissed for failure to sue RTA. The court instead orders, pursuant to Rule 19(a), that the RTA in its corporate capacity be joined as a party defendant.

The final procedural objection the local defendants raise to plaintiff’s complaint is that the RTA board members are named as defendants in both their official and individual capacities, while the facts asserted in, and prayer for relief of, the complaint concern only actions of the RTA and its board members in their official ca-parities. Since this is the case, and since the relief sought is solely equitable and of a character which only the corporate body of the RTA can furnish, the complaint is ordered dismissed as against the RTA board members in their individual (but not official) capacities.

II.

A.

The non-procedural aspects of defendants’ motions for summary judgment will now be considered. Plaintiff’s first claim for relief is premised upon the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1601, et seq., and, more specifically, upon Section 16(a) of that act, 49 U.S.C. § 1612(a), which provides:

(a) It is hereby declared to be the 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 design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured; and that all Federal programs offering assistance in the field of mass transportation (including the programs under this chapter) should contain provisions implementing this policy.

Plaintiff contends that the “special efforts” mandated by this section require the defendants “to act so as to ensure that all transit rolling stock and facilities can be effectively utilized by all mobile disabled and elderly people.” The defendants’ position is that neither the Urban Mass Transportation Act nor the other statutory or constitutional provisions relied upon by plaintiff require “that every regular route vehicle must be accessible to every person with a mobility handicap, including those who must ambulate by wheelchair”. The defendants instead contend that they have met the act’s requirement of “special efforts” by the institution of several programs and policies designed to benefit the handicapped and elderly, such programs being collectively entitled Community Responsive Transportation (CRT).

This court cannot accept plaintiff’s broad reading of 49 U.S.C. § 1612. To the contrary, the court specifically rejects plaintiff’s contention that this statutory provision requires that “all transit rolling stock and facilities [must be able to be] effectively utilized by all mobile disabled and elderly people.” Leary v. Crapsey, Civil No. 76-286 (W.D.N.Y. Mar. 31, 1977); Young v. Coleman, Civil No. H-76-201 (D.Conn. Dec. 17, 1976); United Handicapped Federation v. Andre, 409 F.Supp. 1297 (D.Minn.1976); Snowden v. Birmingham—Jefferson County Transit Authority, 407 F.Supp. 394 (N.D.Ala.1975), aff’d (5th Cir. April 21, 1977); Bohlke v. Golden Gate Bridge, Highway, and Transportation District, No. 73362 (Marin County, California Superior Court, May 9, 1975). In establishing a national policy to guarantee mass transit utilization rights for the handicapped, Congress did not create immediate rights of access for all handicapped individuals to all mass transit facilities.

The plaintiff has left uncontroverted RTA’s estimate that a fully accessible transit system would require $66,800,000 in capital expenditures and an additional $10,880,000 per year in increased operating expenses (the total cost of operation of RTA’s bus and rapid transit systems in 1976 was $40,150,000). Expenditures of this magnitude for an estimated 1,700 to 8,600 persons confined to wheelchairs are not required by Section 16(a) of the Urban Mass Transportation Act, when, as in this case, adequate transit services for all persons in Cuyahoga County can apparently be provided at a fraction of such cost. Although the court is cognizant of the psychological and rehabilitative benefits to be gained from integrating wheelchair users into the regular transit system, the Regional Transit Authority is only required to provide mass transit that the handicapped and elderly can “effectively utilize.” The court therefore holds that there is no statutory infirmity in RTA’s basic approach to Section 16(a) special efforts compliance (the operation of a separate paratransport system parallel to the main bus and rapid systems).

B.

Although the court rejects plaintiff’s argument that the Urban Mass Transportation Act of 1964 requires that all rapid transit vehicles must be universally accessible, it nevertheless feels that on the present record summary judgment for the defendants is inappropriate. However, as hereafter explained, the court reserves final ruling on the defendants’ motions pending augmentation of the record and submission of supplemental briefs. Two issues left unresolved on this record are whether the RTA is required by the applicable federal statutes to provide service for elderly and handicapped individuals “that is reasonable by comparison with the service provided to the general public” and whether, if it is required to provide comparable service, it is in fact meeting such requirement. The briefs submitted to this court, as well as all of the cases .cited to the court, focus on the question of whether or not RTA must make all of its vehicles fully accessible and have not considered in any depth the extent to which federal statutes may require comparable, but non-integrated, transit services for the wheelchair confined and other handicapped and elderly individuals. The court, therefore, orders the parties to submit to the court supplemental briefs on this legal issue, as well as any affidavits or other documentation that bears on the comparability of services provided by RTA’s Community Responsive Transit and RTA’s general transit services. Such information should include current data on the coverage of CRT both in terms of the area in which the program is in effect and the hours and days per week of its operation. These further submissions should be- made to the court within twenty days from the date of this memorandum and order.

C.

Plaintiff has also claimed relief against local and federal defendants under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the Department of Transportation and Related Agencies Act of 1975, Pub.L. No. 93-391, 88 Stat. 768 (1974), and the commerce, due process, equal protection, and privileges and immunities clauses of the United States Constitution. Since ruling is reserved on the defendants’ motions for summary judgment, it is unnecessary to discuss plaintiff’s claims under these other statutory and constitutional claims at length. The separate provisions will now be considered briefly, however.

The Rehabilitation Act claim of plaintiff is based upon 29 U.S.C. § 794, which provides that:

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, 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.

As to this statutory claim, the court adopts the reasoning of Part II.B. of this opinion and finds that the same issue remains unresolved under the Rehabilitation Act of 1973 as under the Urban Mass Transportation Act of 1964: i. e., whether RTA is required to provide services for the elderly and handicapped which are reasonably comparable to the services provided the general public and, if such a requirement exists, whether RTA is in compliance with it. The court, however, specifically rejects the plaintiffs contention that the Rehabilitation Act of 1973 or the regulations promulgated thereunder require the defendants to make all RTA buses accessible to wheelchairs.

Plaintiff’s third claim for relief is based upon the Department of Transportation and Related Agencies Act of 1975, Pub.L. No. 93-391, 88 Stat. 768 (1974), Section 315 of which provides:

SEC. 315. None of the funds provided under this Act shall be available for the purchase of passenger rail or subway-cars, for the purchase of motor buses or for the construction of related facilities unless such ears, buses and facilities are designed to meet the mass transportation needs of the elderly and the handicapped.

This section of the appropriations bill is of no benefit to plaintiff, however, since it only restricts the allocation of funds under that particular allocations act. In this 1974 act, Congress only appropriated money for the fiscal year ending June 30, 1975 and thus RTA cannot now receive funds from this 1974-75 appropriation. Thus, defendants are not in violation of Pub.L. No. 93-391, and plaintiff’s claim, insofar as it is based on this act, is ordered dismissed.

Since the enactment of this 1974 legislation, Congress has passed two other appropriations acts to fund the Department of Transportation for the fiscal years ending June 30, 1976 and June 30, 1977. Pub.L. No. 9