John Karczewski v. Dch Mission Valley LLC , 862 F.3d 1006 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN KARCZEWSKI, No. 15-55633
Plaintiff-Appellant,
D.C. No.
v. 3:14-cv-02639-
BAS-BLM
DCH MISSION VALLEY LLC, a
California Limited Liability
Company, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted February 9, 2017
Pasadena, California
Filed July 10, 2017
Before: Susan P. Graber, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Bybee, dubitante
2 KARCZEWSKI V. DCH MISSION VALLEY
SUMMARY*
Americans with Disabilities Act
The panel reversed the district court’s dismissal of a claim
that the defendant automobile dealership violated Title III of
the Americans with Disabilities Act by refusing to install
temporary vehicle hand controls for test-drives of a car
offered for sale.
The panel held that the plaintiff stated a claim under
42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public
accommodation to “make reasonable modifications in
policies, practices, or procedures, when such modifications
are necessary to afford . . . goods, services, facilities,
privileges, advantages, or accommodations to individuals
with disabilities.”
The panel held that the plaintiff did not state a claim
under § 12182(b)(2)(A)(iv), which requires the removal of
architectural barriers in existing facilities, because the
“barrier” that the plaintiff encountered could not reasonably
be described as an architectural barrier in an existing facility.
The barrier was the lack of hand controls in the defendant’s
cars, and the cars that the defendant offered for sale were
goods, not facilities.
The panel held that two implementing regulations,
28 C.F.R. §§ 36.307(a) and 36.306, did not preclude the
plaintiff’s statutory claim.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KARCZEWSKI V. DCH MISSION VALLEY 3
Acquiescing dubitante, Judge Bybee wrote that he would
hold that 28 C.F.R. § 36.304(b)(21), enforcing the
architectural barriers provision of the ADA and requiring the
installation of vehicle hand controls, is not a permissible
construction of the statute. Judge Bybee objected to the
majority’s analysis of § 12182(b)(2)(A)(ii) because it
enabled anything to be construed as a policy and because
the Department of Justice’s regulations and manuals had
taken a more modest approach to the terms “policies,
practices, and procedures.”
COUNSEL
Russell Clive Handy (argued), Center for Disability Access,
San Diego, California, for Plaintiff-Appellant.
Lann G. McIntyre (argued), Jonna D. Lothyan, Ryan P.
Garchie, and Jeffry A. Miller, Lewis Brisbois Bisgaard &
Smith LLP, San Diego, California, for Defendant-Appellee.
Felicia Ruth Reid (argued), Hirschfeld Kraemer LLP, San
Francisco, California, for Amici Curiae National Automobile
Dealers Association, California New Car Dealers
Association, and National Mobility Equipment Dealers
Association.
Christopher C. Wang and Sharon M. McGowan, Attorneys;
Vanita Gupta, Principal Deputy Assistant Attorney General;
Appellate Section, Civil Rights Division, United States
Department of Justice, Washington, D.C.; for Amicus Curiae
United States.
4 KARCZEWSKI V. DCH MISSION VALLEY
OPINION
GRABER, Circuit Judge:
Plaintiff John Karczewski, who is paralyzed from the
waist down, sought to test-drive one of the cars offered for
sale by Defendant DCH Mission Valley LLC. He requested
that Defendant temporarily install hand controls so that he
could test-drive the car, but Defendant declined. Plaintiff
then brought this action, alleging that Defendant’s refusal to
install temporary vehicle hand controls violated the
Americans with Disabilities Act (“ADA”). The district court
granted Defendant’s motion to dismiss, Fed. R. Civ. P.
12(b)(6), holding that, as a matter of law, a plaintiff may not
bring a claim under the ADA requiring a public
accommodation to install vehicle hand controls for test-
drives, no matter the circumstances.
Reviewing de novo, Brown v. Elec. Arts, Inc., 724 F.3d
1235, 1240 (9th Cir. 2013), and resolving a split among
district courts in our circuit, we reverse and remand.
Accepting the allegations in the complaint as true, as we
must, id. at 1247, Plaintiff has stated a claim under 42 U.S.C.
§ 12182(b)(2)(A)(ii), which requires a public accommodation
to “make reasonable modifications in policies, practices, or
procedures, when such modifications are necessary to afford
such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities.”
FACTUAL AND PROCEDURAL HISTORY
Plaintiff “is a level T10/11 paraplegic who is paralyzed
from the waist down, cannot walk, and . . . uses a wheelchair
for mobility.” “He drives a specially equipped vehicle with
KARCZEWSKI V. DCH MISSION VALLEY 5
hand controls,” and he “has a disabled persons placard . . .
[and] a driver’s license.” Defendant is “a facility open to the
public . . . and a business establishment” that sells cars.
Defendant permits potential buyers “the opportunity to test
drive vehicles that they are considering buying.”
Plaintiff visited Defendant’s business with the intention
of buying a used car. He asked Defendant’s employees “for
the opportunity to test drive a vehicle and informed them that
he could not use his legs and, therefore, needed to have
vehicle hand controls temporarily installed on the vehicle so
that he could avail himself of this opportunity.” The
employees told Plaintiff that Defendant “does not install
vehicle hand controls on any vehicles for sale and that they
would not do so for him as an accommodation.”
Plaintiff alleges that “[t]here are numerous companies that
sell (and will install) vehicle hand controls that are universal
in design, meaning that they can be used on any vehicle, and
their installation does not render any safety features
inoperable or cause any permanent modification or damage
to the vehicle itself.” “Such hand controls are inexpensive,
are widely used within the car rental agency world for
temporary installation and removal, and could be easily
installed by [Defendant] without much difficulty or expense.”
Following Defendant’s refusal to facilitate a test-drive,
Plaintiff brought this action, alleging that Defendant’s failure
to install temporary vehicle hand controls violated the ADA.1
1
Plaintiff also alleged violations of state law. The district court
dismissed those claims on the ground that they “are predicated on the
viability of his ADA claim.” Because we reverse the dismissal of the
ADA claim, we also reverse the dismissal of the state-law claims.
6 KARCZEWSKI V. DCH MISSION VALLEY
In particular, Plaintiff alleges that Defendant discriminated by
reason of:
a. A failure to make reasonable
modifications in policies, practices, or
procedures, when such modifications are
necessary to afford goods, services, facilities,
privileges, advantages, or accommodations to
individuals with disabilities, unless the
accommodation would work a fundamental
alteration of those services and facilities.
42 U.S.C. § 12182(b)(2)(A)(ii).
b. A failure to remove architectural
barriers where s uch removal is
re a d i l y a c h i e v a b le. 42 U.S .C .
§ 12182(b)(2)(A)(iv). . . .
....
Among the barrier removal tasks that are
readily achievable to accomplish is installing
vehicle hand controls. 28 C.F.R.
§ 36.304(b)(21).
The district court dismissed the claim, holding that it was
foreclosed by 28 C.F.R. § 36.307(a), which states that “[t]his
part does not require a public accommodation to alter its
inventory to include accessible or special goods that are
designed for, or facilitate use by, individuals with
disabilities.” Plaintiff timely appeals.
District courts have divided on the legal question
presented in this appeal: whether a person seeking to test-
KARCZEWSKI V. DCH MISSION VALLEY 7
drive a car may bring a claim under the ADA to require an
automobile dealership to install temporary vehicle hand
controls, at least in some circumstances, or whether such
claims necessarily fail. Compare, e.g., Tate v. Deoca, No.
cv14-08738SJO(MRWx), 2015 WL 12552042 (C.D. Cal.
June 30, 2015) (dismissing a claim similar to Plaintiff’s
claim), and Schutza v. FRN of San Diego, LLC, No.
14cv628JM(RBB), 2015 WL 2152207 (S.D. Cal. May 7,
2015) (same); with Funches v. Barra, No. 14civ.7382(KPF),
2016 WL 2939165 (S.D.N.Y. May 17, 2016) (denying a
motion to dismiss a similar claim), and Schutza v. CarMax
Auto Superstores Cal., LLC, No. 14cv2617L(JLB), 2015 WL
1632716 (S.D. Cal. Apr. 13, 2015) (same). We received two
helpful briefs from amici: a brief from the United States, in
support of Plaintiff’s position; and a brief from the National
Automobile Dealers Association, the California New Car
Dealers Association, and the National Mobility Equipment
Dealers Association, in support of Defendant’s position.
DISCUSSION
“Title III of the ADA prohibits discrimination by public
accommodations . . . .” Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 669 (9th Cir. 2010)
(citing 42 U.S.C. § 12182(a)). “Public accommodations must
start by considering how their facilities are used by non-
disabled guests and then take reasonable steps to provide
disabled guests with a like experience.” Baughman v. Walt
Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012).
Section 12182 begins with a “General rule” in subsection (a):
No individual shall be discriminated
against on the basis of disability in the full
and equal enjoyment of the goods, services,
8 KARCZEWSKI V. DCH MISSION VALLEY
facilities, privileges, advantages, or
accommodations of any place of public
accommodation by any person who owns,
leases (or leases to), or operates a place of
public accommodation.
42 U.S.C. § 12182(a). More specifically:
For purposes of subsection (a) of this
section, discrimination includes—
....
(ii) a failure to make reasonable
modifications in policies, practices, or
procedures, when such modifications are
necessary to afford such goods, services,
facilities, privileges, advantages, or
accommodations to individuals with
disabilities, unless the entity can demonstrate
that making such modifications would
fundamentally alter the nature of such goods,
services, facilities, privileges, advantages, or
accommodations;
....
(iv) a failure to remove architectural
barriers, and communication barriers that are
structural in nature, in existing facilities, and
transportation barriers in existing vehicles and
rail passenger cars used by an establishment
for transporting individuals (not including
barriers that can only be removed through the
KARCZEWSKI V. DCH MISSION VALLEY 9
retrofitting of vehicles or rail passenger cars
by the installation of a hydraulic or other lift),
where such removal is readily achievable; and
(v) where an entity can demonstrate that
the removal of a barrier under clause (iv) is
not readily achievable, a failure to make such
goods, services, facilities, privileges,
advantages, or accommodations available
through alternative methods if such methods
are readily achievable.
Id. § 12182(b)(2)(A).
“Congress entrusted the Attorney General with the
responsibility of promulgating Title III’s implementing
regulations,” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d
1075, 1080 (9th Cir. 2004) (citing 42 U.S.C. § 12186(b)), and
the Attorney General issued regulations, through notice and
comment, found at 28 C.F.R. pt. 36. Accordingly, when
analyzing an ambiguity or a gap in the statute, we analyze
those regulations under the familiar Chevron framework.
Baughman, 685 F.3d at 1136.
A. Reasonable Modifications in Policies, Practices, or
Procedures
Plaintiff contends that Defendant’s refusal to install
vehicle hand controls constitutes
a failure to make reasonable modifications in
policies, practices, or procedures, when such
modifications are necessary to afford such
goods, services, facilities, privileges,
10 KARCZEWSKI V. DCH MISSION VALLEY
advantages, or accommodations to individuals
with disabilities, unless the entity can
demonstrate that making such modifications
would fundamentally alter the nature of such
goods, services, facilities, privileges,
advantages, or accommodations[.]
42 U.S.C. § 12182(b)(2)(A)(ii). To prevail on a claim under
that statutory provision, Plaintiff must establish that:
(1) he is disabled as that term is defined by
the ADA; (2) the defendant is a private entity
that owns, leases, or operates a place of public
accommodation; (3) the defendant employed
a discriminatory policy or practice; and (4) the
defendant discriminated against the plaintiff
based upon the plaintiff’s disability by
(a) failing to make a requested reasonable
modification that was (b) necessary to
accommodate the plaintiff’s disability.
Fortyune, 364 F.3d at 1082. If Plaintiff establishes a prima
facie case, then Defendant “must make the requested
modification unless it proves that doing so would alter the
fundamental nature of its business.” Id.At this procedural stage, we must take as true the
allegations stated in the complaint. Brown, 724 F.3d at 1247.
Viewing the complaint through that lens, Plaintiff has stated
a claim under the ADA. Plaintiff alleges that (1) he is
disabled; (2) Defendant operates a car dealership that is a
public accommodation; (3) Defendant employed the
discriminatory policy or practice of providing a test-driving
privilege or service only to those persons capable of using
KARCZEWSKI V. DCH MISSION VALLEY 11
foot controls; and (4) Defendant discriminated against
Plaintiff by (a) failing to make the reasonable modification of
temporarily installing hand controls that can be added without
significant difficulty or expense, (b) which is necessary to
accommodate Plaintiff’s disability.
Plaintiff’s requested accommodation ultimately may
prove to be unreasonable. For example, Defendant asserts
that, to meet Plaintiff’s needs, Defendant must purchase hand
controls; create a training program for its mechanics; retain
mechanics trained to install the controls; determine the ability
of each customer to use hand controls; develop a protocol for
evaluating the customer’s needs; develop a procedure for
determining whether each vehicle can be adapted; maintain
a trained mechanic and “qualified driving rehabilitation
employee” who would be available during all business hours;
and account for increased potential liability and the resulting
increase in insurance premiums.
As noted, though, we must take Plaintiff’s plausible
allegations as true. Brown, 724 F.3d at 1247. Plaintiff has
alleged that hand controls are inexpensive, are easy to obtain,
work on all types of vehicles, do not disable any safety
features, cause no damage, and can be installed by Defendant
“without much difficulty or expense.” Defendant’s argument
to the contrary may ultimately carry the day, perhaps even at
summary judgment. See Fortyune, 364 F.3d at 1083(“[W]hether a particular modification is ‘reasonable’ involves
a fact-specific, case-by-case inquiry that considers, among
other factors, the effectiveness of the modification in light of
the nature of the disability in question and the cost to the
organization that would implement it.” (internal quotation
marks omitted)). But taking the facts alleged in the complaint
as true, Plaintiff’s allegations suffice to establish that the
12 KARCZEWSKI V. DCH MISSION VALLEY
proposed modification to the test-driving privilege or service
is a reasonable one.
Plaintiff’s requested accommodation would not “alter the
fundamental nature of [Defendant’s] business.” Id. at 1082.
If the allegations in the complaint are true, Defendant would
still sell cars and would still offer test drives to its customers.
Plaintiff’s complaint does not suggest that individually
tailored controls would be required, nor does it suggest that
Defendant’s business model would have to accommodate on-
demand, unscheduled test drives of modified cars, as
Defendant argues. Cf. id. at 1084 (holding that a
modification to a seating policy at a movie theater would not
fundamentally alter the theater’s business).
In sum, taking the allegations in the complaint as true,
Plaintiff has stated a claim that Defendant discriminated
against him by failing to make a reasonable modification to
a policy, practice, or procedure.
In his separate opinion, Judge Bybee objects to the
foregoing analysis on a ground not advanced by Defendant.
In particular, he worries that Defendant’s policy of providing
a test-driving privilege or service only to those persons
capable of using foot controls may not be a “polic[y],
practice[], or procedure[]” under the ADA. His separate
opinion does not cite any case—and we have found
none—supporting its restrictive definition of “policies,
practices, or procedures.”
To the contrary, both the statute and our cases generally
reject restrictive interpretations of the ADA. See, e.g.,
42 U.S.C. § 12101(b)(1) (the stated purpose of the Act is “to
provide a clear and comprehensive national mandate for the
KARCZEWSKI V. DCH MISSION VALLEY 13
elimination of discrimination against individuals with
disabilities”); Cohen v. City of Culver City, 754 F.3d 690, 695
(9th Cir. 2014) (“We construe the language of the ADA
broadly to advance its remedial purpose.”). The principle of
broad construction is particularly apt here. As noted above,
§ 12182 begins with a “[g]eneral rule” in subsection (a) that
“[n]o individual shall be discriminated against on the basis of
disability . . . .” The “policies, practices, or procedures” text
is found in subsection (b)(2)(A) which, by its clear terms,
provides a non-exhaustive, illustrative list of certain actions
that qualify as discrimination. See also Spector v. Norwegian
Cruise Line Ltd., 545 U.S. 119, 128–29 (2005) (noting that
the general non-discrimination rule in subsection (a) is
“supplemented by various, more specific requirements,” such
as those found in subsection (b)(2)(A) (emphasis added)).
Against that backdrop, discrimination assuredly includes
Defendant’s denial of a privilege to disabled persons, such as
Plaintiff, when an allegedly simple, inexpensive, and
temporary solution exists.
We disagree with the separate opinion that, under our
interpretation, all ordinary “architectural barriers” claims may
be recast as “policy or practice” claims. A permanent
structural change to a building or surrounding fixtures, such
as “[m]aking curb cuts in sidewalks and entrances,” 28 C.F.R.
§ 36.304(b)(2), plainly qualifies as an “architectural barriers”
claim. But it would defy ordinary usage to assert that cutting
a permanent ramp into a sidewalk is a “modification” to a
“policy.” No matter how artfully drafted, the complaint
would seek a permanent structural change in actual concrete.
Not even creative lawyers ordinarily would describe such a
change as a modification of a policy. Here, by contrast,
Plaintiff seeks the temporary modification of a car for the
purpose of a short test-drive, relief that fits comfortably
14 KARCZEWSKI V. DCH MISSION VALLEY
within the ordinary understanding of a modification to a
policy—perhaps explaining why Defendant did not challenge
this aspect of Plaintiff’s claim and why the Department of
Justice filed an amicus brief urging us to find a viable “policy
and practice” claim.
Moreover, even assuming that some factual scenarios
plausibly could fit within more than one of Congress’ five
illustrative examples of discrimination, we fail to see what
problems that would cause. It is possible that Congress
intended for the more specific definition to govern over the
general definition; or perhaps Congress intended a plaintiff to
be able to proceed under alternative theories of
discrimination. But we need not address the issue of dueling
definitions here because all of us—the majority and Judge
Bybee—agree that the “architectural barriers” provision does
not apply to Plaintiff’s claim.
The separate opinion asserts that, if a court found that a
plaintiff could proceed under both definitions, our opinion
may have reduced the burden of proof because the “policy or
practice” definition might be easier for plaintiffs to prove.
Even if that were true, if Congress intended for both
standards to apply, then we must give effect to that intent.
But we disagree with the premise that a “policy” claim is
necessarily easier to prove than a “barriers” claim. Nothing
in the statute purports to subject the victims of architectural
discrimination to a higher burden. The prima facie case for
“reasonableness” under the “policy” definition appears, for
practical purposes, identical to the prima facie “readily
achievable” inquiry under the “barriers” definition. Compare
Fortyune, 364 F.3d at 1083 (describing the “reasonableness”
inquiry), with Disabled Rights Action Comm. v. Las Vegas
KARCZEWSKI V. DCH MISSION VALLEY 15
Events, Inc., 375 F.3d 861, 879–80 (9th Cir. 2004)
(describing the “readily achievable” inquiry). But a “policy”
claim—and not an “architectural barriers” claim—permits a
defendant to assert an affirmative defense that “making such
modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or
accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).
Accordingly, if any practical difference exists, a “policy”
claim is likely harder to prove because a plaintiff may have
to overcome an affirmative defense not available under the
“barriers” definition.
B. Architectural Barriers in Existing Facilities
Plaintiff also contends that Defendant’s refusal to install
vehicle hand controls constitutes “a failure to remove
architectural barriers . . . in existing facilities.”2 42 U.S.C.
§ 12182(b)(2)(A)(iv). In support, Plaintiff points to 28 C.F.R.
§ 36.304(a) and (b)(21). Section 36.304(a) states that “[a]
public accommodation shall remove architectural barriers in
existing facilities . . . where such removal is readily
achievable.” Section 36.304(b)(21) includes “[i]nstalling
vehicle hand controls” as one of 21 “[e]xamples of steps to
remove barriers.” We conclude that the statutory provision
does not apply in the circumstances of this case and that,
therefore, the regulation cannot apply here.
The ADA repeatedly treats “facilities” and “goods” as
distinct concepts when describing the reach of the
statute—Congress generally intended to ensure full and equal
2
We address this alternative contention both because the parties
focused much of their briefing on this statutory provision and because, as
just noted, an “architectural barriers” claim may be easier to prove.
16 KARCZEWSKI V. DCH MISSION VALLEY
enjoyment of “the goods, services, facilities, privileges,
advantages, or accommodations” of qualified businesses.
42 U.S.C. § 12182(a) (emphases added); id.§ 12182(b)(1)(A)(i), (ii) & (iii); id. § 12182(b)(1)(B), (E); id.
§ 12182(b)(2)(A)(i), (ii), (iii) & (v); id. § 12182(b)(3). But
Congress limited this specific definition of discrimination to
“architectural barriers . . . in existing facilities.” Id.
§ 12182(b)(2)(A)(iv) (emphasis added).
The “barrier” that Plaintiff has encountered cannot
reasonably be described as an architectural barrier in an
existing facility. The barrier that Plaintiff faced was the lack
of hand controls in Defendant’s cars, and the cars that
Defendant offered for sale are clearly goods, not facilities.
See, e.g., Merri am -W eb s t er Dictionary,
https://www.merriam-webster.com/dictionary/goods
(visited June 30, 2017) (defining “goods” as “something
manufactured or produced for sale”). Commonly, by
contrast, “facility” means the physical structure that enables
(or facilitates) the business’ overall mission. See, e.g., id. at
https://www.merriam-webster.com/dictionary/facility
(“something (as a hospital) that is built, installed, or
established to serve a particular purpose”). Similarly, the
most common definition of “architecture” refers to “the art or
practice of designing and building structures.” Id. at
https://www.merriam-webster.com/dictionary/architecture;
see also Ox ford English Dictionary,
http://www.oed.com/view/Entry/10408 (visited June 30,
2017) (defining “architecture” as “[t]he art or science of
building or constructing edifices of any kind for human use”).
Read as a whole, the phrase—“architectural barriers in
existing facilities”—most naturally encompasses a business’
buildings and surrounding grounds. It would stretch the
ordinary meaning of the phrase too far—and it would conflict
KARCZEWSKI V. DCH MISSION VALLEY 17
with Congress’ choice to limit the reach of the “architectural
barriers” provision to “facilities” only, and not to “goods”—if
we interpreted the phrase, “architectural barriers in existing
facilities,” to include the lack of hand controls on Defendant’s
cars.
At the first step of the Chevron analysis, we ask “whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the matter
. . . .” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). For the reasons stated above,
congressional intent is clear: The provision regulating
“architectural barriers in . . . existing facilities” plainly does
not apply to Plaintiff’s claim. But even if the statute were
ambiguous, at step two we conclude that, for the same
reasons, the agency’s construction is not “based on a
permissible construction of the statute.” Id. at 843.
Accordingly, the implementing regulation describing the
temporary installation of vehicle hand controls as an example
of removing an architectural barrier in an existing facility,
28 C.F.R. § 36.304(b)(21), is inapplicable to Plaintiff’s
claim.3
C. Additional Implementing Regulations
Defendant argues that, even if the text of the ADA is
broad enough to encompass Plaintiff’s claim, two of the
3
Our decision is limited, as it must be, to the particular question
before us. Nothing in this opinion is intended to cast doubt on the
application of this statutory section and the corresponding regulation to
other factual scenarios, such as the practice by rental-car companies of
installing vehicle hand controls in their rental cars. We decline the
separate opinion’s invitation to address factual situations and legal issues
not before us.
18 KARCZEWSKI V. DCH MISSION VALLEY
implementing regulations independently preclude his
statutory claim. We disagree.
Defendant first points to 28 C.F.R. § 36.307(a), which
states:
This part does not require a public
accommodation to alter its inventory to
include accessible or special goods that are
designed for, or facilitate use by, individuals
with disabilities.
Defendant reasons that installing temporary vehicle hand
controls will alter the vehicles that it sells, its vehicles for sale
constitute its inventory, and Plaintiff’s claim therefore fails.
Although Defendant’s argument appears plausible at first
blush, it does not withstand scrutiny.
The term “inventory” in this regulation means the
business’ set of items comprising its inventory as a whole—it
does not mean each individual item in the inventory. The
usual meaning of “inventory” is “an itemized list of current
assets: such as (1) a catalog of the property of an individual
or estate [or] (2) a list of goods on hand.” Merriam-Webster
Dictionary. And contextually, it is plain that Congress used
“inventory” in this ordinary sense. The regulation concerns
when a business must “alter its inventory to include
accessible or special goods.” 28 C.F.R. § 36.307(a)
(emphasis added). Similarly, the next subsection of the
regulation creates an exception to the general rule by
requiring that a “public accommodation shall order accessible
or special goods” in some circumstances. Id. § 36.307(b)
(emphasis added). The regulation thus pertains to the
circumstances in which a business must order additional
KARCZEWSKI V. DCH MISSION VALLEY 19
goods; it does not speak to Plaintiff’s requested
accommodation—a temporary, short-term modification to an
existing individual item already contained in Defendant’s
inventory. The district court in Funches, 2016 WL 2939165,
at *6, provided a helpful summary: “While places of public
accommodation are generally not required to alter their
inventories by manufacturing or ordering specialty goods,
they are required to make reasonable, temporary adjustments
to goods already in stock if doing so will help disabled
customers access the same goods and services as non-
disabled customers.”
Defendant next points to 28 C.F.R. § 36.306, which
states:
This part does not require a public
accommodation to provide its customers,
clients, or participants with personal devices,
such as wheelchairs; individually prescribed
devices, such as prescription eyeglasses or
hearing aids; or services of a personal nature
including assistance in eating, toileting, or
dressing.
Defendant reads that regulation to create a categorical rule
precluding any claim under the ADA that would require
public accommodations to provide “personal devices.”
Defendant then asserts that, because vehicle hand controls are
“personal devices” within the meaning of the regulation,
Plaintiff’s claim fails. For the reasons that follow, we are not
persuaded.
The phrase “personal devices” is flexible enough that it
could describe all devices that one uses personally—
20 KARCZEWSKI V. DCH MISSION VALLEY
encompassing wheelchairs, prescription eyeglasses, and
hearing aids, but also steering wheels, door handles, turn-
signal levers, gearshifts, radio knobs, brake pedals, and
accelerators. Under that broad definition, vehicle hand
controls, like vehicle foot controls, would qualify as
“personal devices” because a driver uses the controls
personally.
But if we were to adopt such a broad definition of
“personal devices,” it would cause a conflict in the
regulations. In particular, 28 C.F.R. § 36.303 requires
businesses, in certain circumstances, to provide many devices
that a customer uses personally. For example, § 36.303(g)
requires movie theaters to provide “audio description
devices,” which aurally describe to the patron the action
occurring on the big screen; and the same regulation requires
movie theaters to provide “captioning devices,” which
visually depict the movie’s auditory features, such as
dialogue. Those devices are used personally by customers.
See id. § 36.303(g)(iii) & (iv) (describing the devices as “the
individual device that a patron may use at any seat”). Thus,
under a broad reading of “personal devices,” the regulations
conflict: One regulation flatly prohibits devices-used-
personally, and a nearby regulation details many devices-
used-personally that businesses must provide.
When confronted with an irreconcilable conflict in two
legal provisions, we may apply the interpretive principle that
the specific governs over the general. In essence, the general
rule applies unless a more specific rule provides otherwise.
Applied here, that principle would operate to carve out an
exception to the general prohibition on “personal devices”
whenever the regulations elsewhere required the provision of
“personal devices.” Although that interpretation appears
KARCZEWSKI V. DCH MISSION VALLEY 21
plausible at first blush, we are persuaded that the agency did
not intend that legalistic analysis.
The conflict here is not subtle or abstract: One regulation
forbids all “personal devices,” and a nearby regulation
requires some “personal devices.” Cf. Nat’l Ass’n of Home
Builders v. San Joaquin Valley Unified Air Pollution Control
Dist., 627 F.3d 730, 737 (9th Cir. 2010) (“It would be odd if
the Act took away . . . with one hand what it granted with the
other.”). Reading § 36.306 to encompass all devices-used-
personally thus requires adding an implicit
qualifier—“Except as otherwise provided in this part”—to
§ 36.306: “Except as otherwise provided in this part, this
part does not require a public accommodation to provide . . .
personal devices . . . .” But the agency clearly knew how to
write its regulations in that fashion. For example, § 36.103(a)
states: “Except as otherwise provided in this part, this part
shall not be construed [in a certain way].” Similarly,
§ 36.508(a) states: “Except as otherwise provided in this
section and in this part, this part shall become effective on
January 26, 1992.” We do not think that the agency would
have added an explicit qualification to other regulations while
at the same time leaving it up to the courts to read an implicit
qualification into this particular regulation.
Rather than reading § 36.306 in a way that conflicts with
§ 36.303, we read the regulations in harmony. In other
words, we apply “the familiar rule of construction that, where
possible, provisions of a [regulation] should be read so as not
to create a conflict.” La. Pub. Serv. Comm’n v. FCC,
22 KARCZEWSKI V. DCH MISSION VALLEY
476 U.S. 355, 370 (1986).4 The examples of devices listed in
the regulation—wheelchairs, prescription eyeglasses, and
hearing aids—suggest a narrower definition. Cf. Yates v.
United States, 135 S. Ct. 1074, 1085 (2015) (“a word is
known by the company it keeps”). All of those devices are
independently useful objects that a person possesses for a
general purpose. Understood in that manner, the two
regulations do not conflict, because the devices listed in
§ 36.303 do not meet that definition. For example, the audio
and visual devices described above have no utility by
themselves; they must be coordinated with the showing of the
film.
This narrower interpretation of “personal devices”
comports with the overall purpose of the ADA to require
businesses to accommodate persons with disabilities
whenever doing so is reasonable. From a practical
standpoint, it would make little sense to require all businesses
to make available, for example, wheelchairs or a wide array
of prescription eyeglasses. It is far more practical, and
consistent with the intent of the ADA, to expect a person in
need of such a general-purpose device to possess one.
The same reasoning yields the opposite result with respect
to specialized devices that must be installed or coordinated
with a business’ system. For example, it would make little
sense to require all persons with hearing disabilities to
possess a captioning device that may or may not work with a
4
That interpretive canon, like “the specific governs over the general,”
ordinarily applies to provisions of a statute. But we regularly hold that a
generic canon of statutory interpretation “applies equally to regulations,”
Lezama-Garcia v. Holder, 666 F.3d 518, 531 n.13 (9th Cir. 2011), and we
see no reason why these two canons do not apply equally to regulations.
KARCZEWSKI V. DCH MISSION VALLEY 23
particular movie theater’s captioning system. Instead, it
makes far more sense to expect a business to provide the
personal receivers that work with the theater’s system.
Indeed, the agency made that intent clear when it
promulgated these regulations. See Nondiscrimination on the
Basis of Disability by Public Accommodations and in
Commercial Facilities, 35 Fed. Reg. 35544-01, 35,571 (July
26, 1991) (“[T]his section [§ 36.306] does not preclude the
short-term loan of personal receivers that are part of an
assistive listening system.”).
The same analysis applies to vehicle hand controls. It
makes little sense to require a person to possess a spare set of
hand controls—of a brand that a dealership may or may not
know how to install—simply for the few occasions in the
person’s lifetime when he or she wants to test-drive a car. It
is far more practical to require dealerships that voluntarily
offer the privilege or service of test-drives to carry hand
controls—of a brand that the dealership knows how to
install—for use when a customer seeks a test-drive
(assuming, of course, that providing hand controls is
“reasonable” and that the other statutory requirements are
met).
In sum, our narrower reading of “personal devices” in
§ 36.306 is more consistent with the overall structure of the
regulations and with the purpose of the ADA. Accordingly,
§ 36.306 does not preclude Plaintiff’s claim.
24 KARCZEWSKI V. DCH MISSION VALLEY
CONCLUSION
Plaintiff has stated a claim under 42 U.S.C. § 12182(a)
and (b)(2)(A)(ii), and nothing in the implementing
regulations categorically precludes that claim. We reiterate
the limited nature of our holding, which necessarily assumes
the truth of Plaintiff’s allegations. For many car dealerships,
the accommodation of installing temporary vehicle hand
controls may prove to be unreasonably burdensome. But we
cannot conclude that the ADA categorically precludes a claim
that a car dealership must provide hand controls for test
drives, which necessarily would encompass situations in
which the provision of hand controls would be reasonable.
For example, the installation of vehicle hand controls is likely
reasonable at a large dealership that regularly installs hand
controls, has spare universal hand controls on hand, and
employs many mechanics with expertise in installing hand
controls, when advance notice is given by a customer with
clear expertise in using hand controls. Rather than
interpreting the ADA never to require the provision of vehicle
hand controls, no matter the situation, we conclude that it is
more consistent with the text of the ADA, with the Act’s
overall intent, and with our caselaw, to inquire into the
underlying facts. See, e.g., Baughman, 685 F.3d at 1135
(“Public accommodations must start by considering how their
facilities are used by non-disabled guests and then take
reasonable steps to provide disabled guests with a like
experience.”).
REVERSED and REMANDED.
KARCZEWSKI V. DCH MISSION VALLEY 25
BYBEE, Circuit Judge, acquiescing dubitante:
The Old Testament prophet Elijah once asked the people
of Samaria, “How long halt ye between two opinions?” 1
Kings 18:21 (King James). Like the ancient inhabitants of the
Northern Kingdom, I find myself in the perplexing situation
of having halted between two opinions—because I am neither
able to join the majority opinion nor have I been able to write
a full-throated dissent. Recognizing that it isn’t any better a
place to be today than it was in Elijah’s day (but also
admitting that his audience had weightier questions on their
minds than questions of statutory interpretation), it is
nevertheless the place in which I find myself. I acquiesce in
the judgment, but dubitante.1
I
I am going to start in a different place from the majority.
I wish to begin with the plaintiff’s sole issue on appeal:
Whether we must defer to DOJ’s regulation requiring that car
dealers “[i]nstall[] vehicle hand controls,” 28 C.F.R.
§ 36.304(b)(21), as a reasonable construction of the ADA.
1
See Credit Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119,
1151 (9th Cir. 2005) (Berzon, J., concurring in the judgment) (“[B]ecause
I cannot conclude with any reasonable certainty that the result . . . is
necessarily wrong given the above-articulated concerns, the only prudent
course of action for me is to set out my views in detail, as I have done, and
to concur in the judgment, while remaining dubitante. See LON L.
FULLER, ANATOMY OF THE LAW 147 (1968) (‘[E]xpressing the epitome of
the common law spirit, there is the opinion entered dubitante—the judge
is unhappy about some aspect of the decision rendered, but cannot quite
bring himself to record an open dissent.’).” (third alteration in original)
(emphasis omitted)). See generally Jason J. Czarnezki, The Dubitante
Opinion, 39 AKRON L. REV. 1 (2006) (providing a history of dubitante
opinions).
26 KARCZEWSKI V. DCH MISSION VALLEY
For its part as amicus, DOJ argues that its regulation on
vehicle hand controls was the “most applicable regulation”
whose “plain language” means that “the absence of hand
controls in a vehicle is a physical barrier that a public
accommodation must remedy under Title III.” Brief for the
United States as Amicus Curiae 10–13, ECF No. 22.
The ADA starts with a broad, general rule: “No individual
shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation.” 42 U.S.C. § 12182(a). The ADA
then offers five examples of specific prohibitions, two of
which are relevant here:
discrimination includes—
....
(ii) a failure to make reasonable modifications
in policies, practices, or procedures . . . unless
the entity can demonstrate that making such
modifications would fundamentally alter the
nature of such goods, services, facilities,
privileges, advantages, or accommodations;
....
(iv) a failure to remove architectural barriers
. . . where such removal is readily
achievable[.]
Id. § 12182(b)(2)(A). DOJ has addressed the architectural
barriers provision, § 12182(b)(2)(A)(iv), in some detail. Here
KARCZEWSKI V. DCH MISSION VALLEY 27
is the relevant portion of the regulation enforcing that
provision:
Examples of steps to remove barriers include,
but are not limited to, the following actions—
(1) Installing ramps;
(2) Making curb cuts in sidewalks and
entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending
machines, display racks, and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator
control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen
doorways;
(10) Eliminating a turnstile or providing an
alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
28 KARCZEWSKI V. DCH MISSION VALLEY
(13) Rearranging toilet partitions to increase
maneuvering space;
(14) Insulating lavatory pipes under sinks to
prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser
in a bathroom;
(18) Creating designated accessible parking
spaces;
(19) Installing an accessible paper cup
dispenser at an existing inaccessible water
fountain;
(20) Removing high pile, low density
carpeting; or
(21) Installing vehicle hand controls.
28 C.F.R. § 36.304(b). Twenty of the twenty-one items on
this list refer to accommodations that must be made in fixed
structures; one relates to vehicles. Even a child can tell that
one of these things is not like the others. See generally
SESAME STREET, One of These Things (Is Not Like the
Others), on SESAME STREET BOOK & RECORD (Columbia
Records 1970).
KARCZEWSKI V. DCH MISSION VALLEY 29
Sensibly, the majority does not buy DOJ’s reading of the
ADA. Neither do I. “Installing vehicle hand controls” cannot
be a reasoned application of the ADA’s command to “remove
architectural barriers . . . in existing facilities” for the simple
reason that “architectural barriers” ought to have something
to do with architecture.2 Indeed, the majority concludes that
§ 12182(b)(2)(A)(iv) does not apply here and, thus, the
regulation is “inapplicable.” Maj. Op. at 16, 17. The
majority then suggests, in dicta, that if it were to reach the
question, then it would hold that “the agency’s construction
is not ‘based on a permissible construction of the statute.’”
Id. at 16 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984)).
I would simply hold that § 36.304 is not a permissible
construction of the architectural barrier provision of the
ADA, § 12182(b)(2)(A)(iv). The regulation is not
“inapplicable” to the plaintiff’s claim, as the majority says; it
was the heart and soul of the plaintiff’s claim and the basis
for DOJ’s amicus brief. And if the regulation is not
applicable here, where would it be applicable? We should
have just said the obvious: that portion of § 36.304 requiring
“vehicle hand controls” is not a reasonable construction of the
statute it purports to implement and is a dead letter.
2
The regulations define “facility” as “all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real or
personal property, including the site where the building, property,
structure, or equipment is located.” 28 C.F.R. § 36.104.
30 KARCZEWSKI V. DCH MISSION VALLEY
II
Anticipating that we would not sustain its regulation on
vehicle hand controls, DOJ offered us a half-hearted
alternative—salvaged from the plaintiff’s complaint but
otherwise ignored by the plaintiff on appeal—which the
majority accepts: we can characterize the car dealer’s refusal
to install hand controls as “a failure to make reasonable
modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations
to individuals with disabilities.” 42 U.S.C.
§ 12182(b)(2)(A)(ii); see Maj. Op. at 9–15. The plaintiff
alleged that the car dealer “employed the discriminatory
policy or practice of providing a test-driving privilege or
service only to those persons capable of using foot controls.”
Maj. Op. at 10–11. According to the majority, that suffices
to “state[] a claim that [the defendant] discriminated against
[the plaintiff] by failing to make a . . . modification to a
policy, practice, or procedure.” Id. at 12.
On an initial reading of the statute, the majority’s
conclusion is plausible. It doesn’t stretch the ADA beyond
recognition to say that the dealer here had a policy,
procedure, or practice that permits able-bodied persons, but
not the plaintiff, to test-drive its cars. That “policy” is a
natural consequence of the dealer only stocking standard-
make cars that depend on foot controls. A buyer who wants
a car, but needs hand controls to operate it, will have to install
the controls at his own expense. The dealer allows customers
to drive the cars the dealer is selling, and they don’t come
with hand controls.
KARCZEWSKI V. DCH MISSION VALLEY 31
On further reflection, however, I have two objections to
the majority’s analysis. First, under the majority’s aggressive
reading of the ADA—which, so far as I can tell, no other
court has adopted—everything can be construed as a policy,
practice, or procedure. The majority characterizes the
plaintiff’s argument as “Defendant employed the
discriminatory policy or practice of providing a test-driving
privilege or service only to those persons capable of using
foot controls[.]” Maj. Op. at 10–11. The form of this
argument—“Defendant employed the discriminatory policy
or practice of providing X only to those persons capable of
doing Y”—has endless possibilities. Consider the following
examples, all consistent with this form.
1. The grocery store employed the
discriminatory policy or practice of providing
shopping only to those persons capable of
doing so without a personal shopper.
2. The commercial airline employed the
discriminatory policy or practice of providing
transportation only to those persons who are
capable of sitting upright in a seat.
3. The building owner employed the
discriminatory policy or practice of providing
access to restrooms only to those persons
capable of using facilities without the aid of a
grab bar.
At least one of these examples—the restroom in a
building—is certainly covered by the ADA and its
regulations, and quite specifically. 28 C.F.R. § 36.304(b)(12)
(requiring grab bars in restroom stalls). In the past, a plaintiff
32 KARCZEWSKI V. DCH MISSION VALLEY
would have brought a claim about an inaccessible restroom
under the “architectural barriers . . . in existing facilities”
provision of the ADA, § 12182(b)(2)(A)(iv). After today’s
case, a sensible plaintiff will also argue that he has a claim
under § 12182(b)(2)(A)(ii) as well. I don’t think that either
of the other examples are covered by the architectural barriers
provision of ADA, and, until today, it is questionable whether
either example would survive a motion to dismiss. But after
today’s broad decision, plaintiffs can bring these claims and
argue that they are covered by the policy-and-practices
provision.
The majority disagrees with my assessment. It responds
that the architectural provision still has bite because some
barriers can’t be forced under the “policies, practices, and
procedures” rubric. Writes the majority:
We disagree with the separate opinion
that, under our interpretation, all ordinary
“architectural barriers” claims may be recast
as “policy or practice” claims. A permanent
structural change to a building or surrounding
fixtures, such as “[m]aking curb cuts in
sidewalks and entrances,” 28 C.F.R.
§ 36.304(b)(2), plainly qualifies as an
“architectural barriers” claim. But it would
defy ordinary usage to assert that cutting a
permanent ramp into a sidewalk is a
“modification” to a “policy.”
Maj. Op. at 13 (alteration in original). The majority has
misunderstood the strength of its own argument. I agree that
a permanent ramp is not a “modification” to a policy (just as
installing vehicle hand controls on a car is not a modification
KARCZEWSKI V. DCH MISSION VALLEY 33
to a policy). But just as the majority holds that the dealer has
a policy of not allowing foot-impaired drivers to test-drive its
cars, it takes only a little lawyerly imagination to accuse the
building owner of having a policy or practice of not installing
permanent ramps in its sidewalks, thus denying its disabled
patrons the equal access to its facilities.
The majority’s aggressive reading of § 12182(b)(2)(A)(ii)
has a real consequence: it gives putative plaintiffs heretofore
unknown abilities to choose the standard of scrutiny their
claims must meet to succeed. Take the restroom example. A
plaintiff who claims that the owner of a building has
maintained an “architectural barrier” in violation of
§ 12182(b)(2)(A)(iv) and its regulations must at least make an
initial showing that “removal is readily achievable.”
42 U.S.C. § 12182(b)(2)(A)(iv); see Colo. Cross Disability
Coal. v. Hermanson Family Ltd., 264 F.3d 999, 1002 (10th
Cir. 2001); Johnson v. YIP Holdings Five, LLC, No. 2:14-cv-
1114-WBS-EFB, 2015 WL 5435659, at *2–3 (E.D. Cal. Sept.
15, 2015). But if the same plaintiff also alleges that the
building owner “employed the discriminatory policy or
practice of providing access to restrooms only to those
persons capable of doing so without the aid of a grab bar” and
could reasonably modify it, the defendant must show that
making the modification to its policy or practice “would
fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations.”
42 U.S.C. § 12182(b)(2)(A)(ii); see Colo. Cross, 264 F.3d at
1003; Wong v. Regents of Univ. of Cal., 192 F.3d 807,
816–17 (9th Cir. 1999); Johnson v. Gambrinus Co./Spoetzel
Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997). Indeed, a
savvy plaintiff who has an architectural barrier argument will
always bring a policies, practices, and procedures claim as
well. Once the plaintiff makes out a prima facie case, the
34 KARCZEWSKI V. DCH MISSION VALLEY
defendant must demonstrate that the removal of its
architectural barrier is “not readily achievable,” 42 U.S.C.
§ 12182(b)(2)(A)(iv), and that modifying its policy “would
fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations,” id.§ 12182(b)(2)(A)(ii).
The majority responds to my concern by telling us that
there is no difference between the two standards, that they
are, “for practical purposes, identical.” Maj. Op. at 14. This
is not reassuring. Ordinarily, when Congress adopts two
different standards within the same legislation, we assume
that the standards mean different things. “A presumption that
a single word means the same thing throughout a statute goes
together with a presumption that different words mean
different things.” Med. Coll. of Wis. Affiliated Hosps., Inc. v.
United States, 854 F.3d 930, 933 (7th Cir. 2017); see also
Mohamad v. Palestinian Auth., 566 U.S. 449, 455–56 (2012);
Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).
Congress may occasionally engage in “elegant
variation”—adopting different language to mean the same
thing, perhaps to stave off its own boredom—but we have a
presumption against elegant variation. See EEOC v.
Gilbarco, Inc., 615 F.2d 985, 999 & n.23 (4th Cir. 1980)
(“Congress determined in closely related circumstances to use
two different terms. It is, therefore, more likely than not that
the use of different language indicated a legislative intention
to mean different things.”); see also Burlington Indus. Inc. v.
Dayco Corp., 849 F.2d 1418, 1421–22 (Fed. Cir. 1988)
(discussing the risks of elegant variation in legal documents).
Second, I harbor serious reservations about whether we
should construe “policies, practices, and procedures” so
broadly when DOJ’s regulations and manuals have taken a
KARCZEWSKI V. DCH MISSION VALLEY 35
more modest approach to those terms. DOJ’s regulations
interpreting § 12182(b)(2)(A)(ii) focus on examples that are
far more policy-like than the dealership’s “policy” here. See,
e.g., 28 C.F.R. § 36.302(c) (forbidding, among other things,
surcharges for service animals and other policies that ban
service animals); id. § 36.302(e) (requiring modifications to
hotel reservation systems); id. § 36.302(f) (requiring
modification to seating policies for ticketed events); see also
DEP’T OF JUSTICE, ADA TITLE III TECHNICAL ASSISTANCE
MANUAL, at III-4.2100–2400 (1993) [hereinafter TAM],
https://www.ada.gov/taman3.html. These areas are within the
core of what in ordinary conversation we consider to be
policies, practices, and procedures. So a doctor who routinely
refers certain kinds of medical problems to another specialist
is not discriminating against a disabled patient when he
“would make a similar referral for an individual without a
disability.” 28 C.F.R. § 36.302(b)(2). However, the doctor
may not refer individuals with disabilities to another
physician when he would treat similarly situated patients
without the same disability. Similarly, a grocery store with
check-out aisles that accommodate the disabled must “ensure
that an adequate number of accessible check-out aisles are
kept open during store hours.” Id. § 36.302(d); TAM III-
4.2400. The store doesn’t get to open wheelchair-accessible
aisles during the day but close them at night; such a policy
violates § 12182(b)(2)(A)(ii). These are policies or practices
as we typically conceive of those terms—a way of doing
things, a course of action. Once we find we can wrap up
anything as a policy, practice, or procedure, DOJ’s
regulations become nearly meaningless.3
3
The TAM makes clear that DOJ believed that the architectural
barriers provision and the policies, practices, and procedures provision
36 KARCZEWSKI V. DCH MISSION VALLEY
The point is reinforced when we consider DOJ’s
regulation regarding “vehicle hand controls” that the plaintiff
and DOJ urged on us. DOJ thought that vehicle hand controls
were required by the ADA, but it located that restriction in
§ 12182(b)(2)(A)(iv), not in § 12182(b)(2)(A)(ii). The
majority resuscitates the essence of the regulation, but locates
it in a different provision of the ADA. If the majority had
done so formally, it would be a flat violation of the Chenery
principle that we don’t supply a rationale where the agency’s
explanation has failed. See SEC v. Chenery Corp., 318 U.S.
80, 88 (1943). The majority has accomplished indirectly
what it couldn’t have done directly. We should hesitate long
before going down this road when DOJ adopted an on-point
regulation, but did so under a different provision of the ADA.
covered different problems. One of its illustrations for a policy, practice
or procedure states:
Under its obligation to remove architectural barriers
where it is readily achievable to do so, a local motel has
greatly improved physical access in several of its
rooms. However, under its present reservation system,
the motel is unable to guarantee that, when a person
requests an accessible room, one of the new rooms will
actually be available when he or she arrives. The ADA
requires the motel to make reasonable modifications in
its reservation system to ensure the availability of the
accessible room.
TAM III-4.2100 (Illustration 2). Under the majority’s reasoning, both
accessibility problems—the motel’s architectural barriers and its
reservation system—could be addressed through § 12182(b)(2)(A)(ii), and
not through § 12182(b)(2)(A)(ii) and (iv) as DOJ contemplated.
KARCZEWSKI V. DCH MISSION VALLEY 37
III
These are challenging interpretive questions for the ADA.
I question whether the majority has got this one right. On the
other hand, I don’t have a full answer for the majority’s
analysis. I remain halted between two opinions, dubitante.