Opinion
Case No. 8:01CV259
January 2, 2002
MEMORANDUM AND ORDER OF DISMISSAL
This matter is before the Court upon a motion to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) (Filing 14), brought on behalf of the United States of America and the United States Postal Service. In his Amended Complaint, Plaintiff John Krumel alleges that the moving defendants and the City of Fremont have unlawfully deprived him of his use and enjoyment of sidewalks in the City of Fremont in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 to 12134, and in violation of the Rehabilitation Act of 1973, as amended in 1978, 29 U.S.C. § 794. The federal defendants contend that the court lacks subject matter jurisdiction over the ADA claim, and that Krumel has failed to state a claim upon which relief can be granted under the Rehabilitation Act. Krumel has submitted his brief in opposition to the motion.
The crux of Krumel's Amended Complaint is that the federal defendants are charged with mailbox placement, and that the boxes' placement in close proximity to the sidewalks in Fremont has a discriminatory impact on him because of his disabilities, which include blindness. Krumel also alleges that he has complained about the placement of mailboxes, and despite his repeated requests, the defendants have refused to relocate the mailboxes. Amended Complaint at paragraphs 7 to 11.
Subject Matter Jurisdiction
The federal defendants contend that the claims brought pursuant to the ADA should be dismissed based on the doctrine of sovereign immunity.
"It is axiomatic that the United States may not be sued without its consent and the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 445 U.S. 535, 538 (1980); see also Lane v. Pena, 518 U.S. 187 (1996), United States v. Sherwood, 312 U.S. 584, 586 (1941). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of the disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity. . . ." 42 U.S.C. § 12132. As defined in the ADA, "public entity" includes "(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority . . ." 42 U.S.C. § 12131(1)(A)-(C). The definition of "public entity" does not include the federal government. There is no indication in the statute that Congress authorized actions against the United States when it enacted the ADA. Thus, any remedies available to persons aggrieved under Title II of the ADA, including the injunctive relief requested by Krumel, are not available against the United States and the United States Postal Service. See 42 U.S.C. § 12131 and 12132. See also Whaley v. United States, 82 F. Supp.2d 1060 (D.Neb. 2000) (noting that United States is not an "employer" under Title I of the ADA, and that the federal defendants were immune from suit under the ADA). Accordingly, Krumel's claims against the United States and the United States Postal Service under the ADA must be dismissed because this court lacks subject matter jurisdiction over them.
Rehabilitation Act Claim
Krumel seeks injunctive relief against the federal defendants, alleging that they have discriminated against him on the basis of his handicap in violation of Section 504 of the Rehabilitation Act of 1973, as amended in 1978. The federal defendants contend that Krumel's Rehabilitation Act claim fails to state a claim upon which relief can be granted. When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must view a plaintiff's allegations in the light most favorable to the plaintiff. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). "[A] complaint should not be dismissed for failure to state a claim unless 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) (footnote omitted). "Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a Plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S. 1070 (1979).
The federal defendants raise two issues in their motion to dismiss: first, whether Krumel's Amended Complaint sufficiently alleges that he was excluded from a "program or activity" solely because of his disability under Section 504; and, second, whether the Amended Complaint should be dismissed based on Krumel's failure to exhaust administrative remedies. The federal defendants acknowledge that Krumel is challenging the impact of a regulation governing the placement of mailboxes, and alleging that the regulation is discriminatory, but the federal defendants contend that a regulation cannot constitute a "program or activity" under the Rehabilitation Act. In a related argument, the federal defendants urge the Court to adopt the reasoning set forth in Cousins v. Secretary of the Dep't. of Transportation, 880 F.2d 603, 605 (1st Cir. 1989) (en banc). Cousins held that individual plaintiffs have no private cause of action under Section 504 of the Rehabilitation Act against the United States in its role as a regulator, and, therefore, a person who challenges a regulation under the Rehabilitation Act must exhaust administrative remedies and seek judicial review pursuant to the Administrative Procedure Act. Id. at 607.
There is no dispute for purposes of this motion that Krumel has satisfactorily alleged that he is a handicapped person as defined in the Rehabilitation Act.
Krumel's response to the federal defendants' argument is that he is not seeking judicial review of an administrative agency's decision and that the APA does not apply. Rather, he contends that he seeks to pursue "an action impliedly authorized by the Rehabilitation Act of 1973" to redress defendants' discrimination against him under their programs and policies, which include all operations connected with the delivery of mail. Plaintiff's Brief in Opposition to Federal Defendants' Motion to Dismiss Amended Complaint at 7.
Section 504 of the Rehabilitation Act states in relevant part:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, 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 or under any program or activity conducted by an Executive agency or by the United States Postal Service. . . .29 U.S.C. § 794(a).
Section 504 generally governs actions against entities that receive federal funding or sponsorship, executive agencies and the United States Postal Service. Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, governs actions against the same entities in the context of employment.
Krumel is correct that the U.S. Court of Appeals for the Eighth Circuit has long recognized that a private cause of action may exist under Section 504 in favor of handicapped persons as against federally funded entities, see Miener v. State of Missouri, 673 F.2d 969 (8th Cir. 1982), and as against federal agencies and the U.S. Postal Service as employers, see Morgan v. U.S. Postal Service, 798 F.2d 1162 (8th Cir. 1986); Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985). However, those holdings do not necessarily give Krumel the right to proceed with this claim against the federal defendants. Miener held that a handicapped individual could proceed under Section 504 against state and local agencies that had received federal assistance, without first exhausting administrative remedies. The facts of Miener are easily distinguished from this case. Miener alleged that she was deprived of equal access to educational facilities in violation of the Rehabilitation Act. Miener, 673 F.2d at 973 . The Miener court, noting that the plaintiff was seeking monetary damages and injunctive relief, found that the administrative remedies available to her were not sufficient to redress the alleged harm. The court stated:
Morgan and Gardner require plaintiffs who sue the federal government in its capacity as an employer under Section 504 to exhaust administrative remedies before filing suit, but the analysis applies solely in the employment context. In suits alleging discrimination in employment on the basis of handicap under Section 501, exhaustion is required because the remedies available under Title VII of the Civil Rights Act of 1964 are incorporated into the Rehabilitation Act for Section 501 plaintiffs, see 29 U.S.C. § 794a(a)(1). In suits alleging employment discrimination based on handicap under Section 504, the remedies available under Title VI of the Civil Rights Act of 1964 are incorporated into the Rehabilitation Act, see 29 U.S.C. § 794a (a)(2), but "only to those § 504 actions filed against employers receiving federal assistance, i.e. private parties and states." Morgan , 798 F.2d at 1165. Unlike Title VII, Title VI does not expressly require exhaustion. Gardner and Morgan found that exhaustion was also required in Section 504 employment actions because Congress would not have provided different exhaustion requirements for the same type of employment discrimination cases. Gardner , 752 F.2d at 1279, n. 7, and Morgan , 798 F.2d at 1165, citing Prewitt v. United States Postal Service , 752 F.2d 292, 304 (5th Cir. 1981).
"[T]he administrative enforcement remedies provided under the Rehabilitation Act are of little comfort to the individual plaintiff. The regulations adopted by the Department of Health and Human Services (HHS), incorporating procedures applicable to Title VI of the 1964 Civil Rights Act, . . . provide administrative sanctions such as the termination of funds for acts of discrimination. No provision is made for the complainant to furnish evidence or otherwise participate in the agency investigation. The complainant has no right to object to, or seek administrative review of HHS's findings. There is no provision for HHS to issue a binding order that damages be paid to an individual who has been injured by reason of a violation of section 504. It is obvious that administrative remedies are inadequate to vindicate individual rights and that Congress could not have expected the individual plaintiff to be made whole through administrative procedures.Id. at 978 (citations to the C.F.R. omitted). These observations led the Miener court to hold that "[s]ince administrative remedies are of little avail to the individual plaintiff, we also conclude that section 504 suits appropriately may be maintained in advance of the exhaustion of administrative remedies." Id. at 978.
In this case, there are administrative remedies available to Krumel to assure him that his complaint is considered, that the circumstances surrounding the complaint are responsibly examined, and that redress, if found to be appropriate, is provided. The Postal Service has stated its intention to comply with the Rehabilitation Act of 1973:
Postal Service policy is to comply fully with section 501 and 504 of the Rehabilitation Act of 1973, and other applicable laws. Accordingly, no otherwise qualified handicapped individual shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity operated by the Postal Service, or in employment.39 C.F.R. § 255.1(a).
The U.S. Postal Service's regulations describe a thorough complaint procedure through which any person who alleges that he or she has been subject to discrimination in the provision of postal services or programs on the basis of a handicap can seek redress from local postmasters. The complainant must submit a written complaint and information sufficient to allow a complete examination of all the relevant circumstances. Id. at § 255.1(c)(1). After review of all relevant information, the local postmaster may issue a decision which, in turn, may be reviewed by the district manager. If the complainant's request is denied by the local postmaster, review by the district manager is automatic. Id. at § 255.1(c)(4). If there is no resolution to the complaint within 60 days of submission, the complainant may seek redress in "any other appropriate forum" including an appeal to the Postal Services' Customer Advocate. Id. at § 255.1(c)(1)-(5). After this procedure is concluded, the complainant may seek judicial review pursuant to the Administrative Procedure Act. See 5 U.S.C. § 701 to 706.
The complaint procedure defined in the U.S. Postal Service regulations is available to Krumel, and there is no reason to believe that it would be ineffective. The local postmaster is empowered to provide the injunctive relief Krumel seeks in this case. Krumel has the right to seek review of the local postmaster's decision by a district manager, or by the Postal Services' Customer Advocate, or by federal court pursuant to the APA. The inability of Miener to obtain relief administratively was the key factor in the court's holding that exhaustion of administrative remedies was not required of her. That factor is not present in this case, and therefore, the federal defendants' motion to dismiss the amended complaint against them will be granted, and Krumel is directed to pursue his administrative remedies and seek any desired judicial review pursuant to the APA.
Title VI remedies, which were available to Miener, are available to plaintiffs who prevail in a Section 504 action against "any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title." 29 U.S.C. § 794a(a)(2). Those same remedies are not available to plaintiffs who prevail in Section 504 actions against a federal defendant, including Executive agencies and the U.S. Postal Service. See Morgan , 798 F.2d at 1165. The omission of Executive agencies and the U.S. Postal Service from 29 U.S.C. § 794a(a)(2) must have been intentional since the same1978 amendment that created the remedies provision at § 794a(a)(2) also expanded the scope of § 794(a) to include Executive agencies and the U.S. Postal Service. Thus, the statutory framework also supports the conclusion that Krumel's redress should be sought initially through administrative procedures.
This Court reaches the same result as the Cousins court, albeit by a different path. The Cousins court's simple examination of the Administrative Procedure Act, 5 U.S.C. § 701-706, and its usefulness to plaintiffs such as Cousins is also instructive in this case. [T]he APA was intended to organize and unify
preexisting methods of obtaining judicial review of agency action, e.g., by making it clear that anyone "adversely affected or aggrieved within the meaning of a relevant statute" could obtain review of "agency action." 5 U.S.C. § 702. A system of administrative law that seeks regularity and hopes to avoid confusion should offer a plaintiff such as Cousins a § 504 action, but one that is securely embraced within the uniform procedural confines of the APA. And, we think that the APA not only should, but does, offer Cousins the type of review that he seeks.Id. at 605. Like the Cousins plaintiff, Krumel may question whether judicial review under the APA is adequate to redress his claim of discrimination. The Cousins court responded to a similar concern, stating:
The general provisions for judicial review of agency action, as embodied in the APA, offer adequate relief. Since the APA offers a set of general rules for judicial review, see 5 U.S.C. § 701-706, since it incorporates by reference other, more specific statutory procedures, see 5 U.S.C. § 703, and since it tends to expand relief beyond what other statutes offer, not to contract it, see, e.g., § 706(2)(A) (forbidding "arbitrary, capricious" agency action), see, e.g., § 706(2)(A) (forbidding "arbitrary, capricious" agency action), it is difficult to imagine a case where an implied private right of action under some other statute would be of much use to a plaintiff who wants to challenge agency action.
Id. at 606.
The procedures made available to Krumel are more than sufficient for him to obtain redress if he can show discrimination. If the Postal Service had not adopted an administrative process designed to bring complaints of discrimination against the handicapped to its attention, then perhaps this case would be resolved under Miener. But the Postal Service has developed an administrative procedure designed to redress claims of discrimination by reason of handicap. Utilization of that procedure by complainants such as Krumel should expedite the resolution of complaints and promote judicial economy. Although Krumel has alleged that he has made "many requests" of the defendants to move the mail boxes and that he has engaged in "futile negotiations," these allegations do not inform the Court whether he availed himself of the procedures outlined in 39 C.F.R. § 255.1(c)(1)-(5). In its own regulations, the Postal Service has stated its policy "to comply fully with section 501 and 504 of the Rehabilitation Act of 1973." There is no reason to presume it will not.
For the foregoing reasons, IT IS ORDERED:
1. The Motion to Dismiss the Amended Complaint (Filing 14) is granted as to the United States of America and the United States Postal Service.