Lonberg v. City of Riverside ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN LONBERG, an individual, 
Plaintiff-Appellee, No. 06-55781
v.
 D.C. No.
CV-97-00237-SGL
CITY OF RIVERSIDE, a municipal
corporation, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
February 2, 2009—Pasadena, California
Filed June 26, 2009
Before: Cynthia Holcomb Hall, Barry G. Silverman and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Silverman
8067
LONBERG v. CITY OF RIVERSIDE 8069
COUNSEL
Gregory F. Hurley and Stacey L. Herter of Greenberg Traurig,
LLP, Costa Mesa, California, for the defendant-appellant.
Terry J. Kilpatrick, San Luis Obispo, California, and Page
Wellcome, Cardiff-by-the-Sea, California, for the plaintiff-
appellee.
OPINION
CALLAHAN, Circuit Judge:
In 1997, John Lonberg (“Lonberg”), a paraplegic, initiated
a lawsuit against the City of Riverside (“City”), alleging vio-
8070 LONBERG v. CITY OF RIVERSIDE
lations of the Americans with Disabilities Act (“ADA”) and
its accompanying regulations. The district court divided the
lawsuit into three phases. Phase one, the only phase at issue
in this appeal, concerns Lonberg’s claim that the City’s plan
to achieve ADA compliance did not meet the standards set
forth in 28 C.F.R. § 35.150(d). The district court granted Lon-
berg’s request for a permanent injunction and ordered the City
to prepare a transition plan that complies with section
35.150(d). The City appeals, arguing that section 35.150(d) is
not privately enforceable.
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1),
see Bates v. United Parcel Serv., Inc., 511 F.3d 974, 984 (9th
Cir. 2007), and we REVERSE and VACATE the permanent
injunction.
I.
During the first phase of this lawsuit, Lonberg moved for
partial summary judgment regarding the City’s alleged non-
compliance with section 35.150(d), which requires public
entities to develop a “transition plan” for achieving the
ADA’s accessibility requirements.1 On June 12, 2000, the dis-
1
28 C.F.R. § 35.150(d) provides, in relevant part, as follows:
Transition Plan. (1) In the event that structural changes to facili-
ties will be undertaken to achieve program accessibility, a public
entity that employs 50 or more persons shall develop, within six
months of January 26, 1992, a transition plan setting forth the
steps necessary to complete such changes. A public entity shall
provide an opportunity to interested persons, including individu-
als with disabilities or organizations representing individuals with
disabilities, to participate in the development of the transition
plan by submitting comments. A copy of the transition plan shall
be made available for public inspection.
(2) If a public entity has responsibility or authority over streets,
roads, or walkways, its transition plan shall include a schedule for
providing curb ramps or other sloped areas where pedestrian
walks cross curbs,
LONBERG v. CITY OF RIVERSIDE 8071
trict court granted Lonberg’s motion, concluding that the City
had failed to comply with section 35.150(d). Significantly for
purposes of this appeal, in granting Lonberg’s motion the dis-
trict court commented in a footnote that “[p]laintiff ha[d] not
requested any specific remedy in connection” with his
motion, “and in particular [did] not request[ ] injunctive
relief.”
Lonberg subsequently moved for a preliminary injunction
directing the City to prepare an adequate transition plan. For
reasons that are not clear from the record before us, the dis-
trict court deemed Lonberg’s motion moot, and set a bench
trial for May 2001 on the adequacy of the City’s transition
plan. Nearly five years after the trial, on March 17, 2006, the
district court issued findings of facts and conclusions of law
in Lonberg’s favor.2 The court found numerous faults with the
City’s transition plan, including its purported failure to suffi-
ciently identify particular physical obstacles limiting accessi-
bility to the City’s streets, intersections, sidewalks and
crosswalks. It also faulted the plan for, among other things,
....
(3) The plan shall, at a minimum—
(i) Identify physical obstacles in the public entity’s facilities
that limit the accessibility of its programs or activities to individ-
uals with disabilities;
(ii) Describe in detail the methods that will be used to make the
facilities accessible;
(iii) Specify the schedule for taking the steps necessary to
achieve compliance with this section and, if the time period of the
transition plan is longer than one year, identify steps that will be
taken during each year of the transition period; and
(iv) Indicate the official responsible for implementation of the
plan.
2
While the parties litigated “phase one,” Lonberg also pursued his
claims for damages and injunctive relief in connection with the City’s
alleged failure to make its sidewalks and curb ramps accessible.
8072 LONBERG v. CITY OF RIVERSIDE
failing to describe in sufficient detail the methods the City
would use to achieve accessibility. Accordingly, the district
court entered a permanent injunction requiring the City to
“prepare a transition plan that complies with the ADA and
§ 35.150.”
After the district court entered the permanent injunction,
the City moved for a new trial, arguing for the first time that
section 35.150(d) is not enforceable through a private cause
of action. Despite Lonberg’s objection that the City had
waived any such argument, the district court denied the City’s
motion on its merits, holding that “Lonberg does have a pri-
vate right of action . . . for injunctive relief compelling the
City to comply with its obligations under Section 35.150(d).”
II.
The City appeals, seeking to vacate the permanent injunc-
tion based on Lonberg’s alleged lack of standing to privately
enforce section 35.150(d).
A.
[1] On appeal, Lonberg maintains that the City has waived
its challenge regarding the enforceability of section 35.150(d)
by failing to raise it until after trial. Specifically, he asserts
that the City’s challenge is a waivable Rule 12(b)(6) defense.
See Fed. R. Civ. P. 12(h)(2) (providing that a Rule 12(b)(6)
defense must be raised no later than trial). Although the City’s
challenge may be characterized as a Rule 12(b)(6) defense, it
also implicates the legal validity of the injunction. We have,
in the past, addressed such issues even where they were not
timely raised below, and we conclude that it is a proper exer-
cise of our discretion to do so here. Cf. Price v. City of Stock-
ton, 390 F.3d 1105, 1108 (9th Cir. 2004) (reaching the issue
of whether a statute created a private right of action even
when the district court failed to address it in the first
instance); Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104,
LONBERG v. CITY OF RIVERSIDE 8073
1114 (9th Cir. 2006) (exercising discretion to reach a purely
legal issue that plaintiffs raised only during oral argument
before the district court).
[2] Reaching the merits of this issue results in no harm to
Lonberg, since he had an opportunity to brief this issue fully
in district court.3 Indeed, the district court declined to find
waiver, and addressed this issue on its merits, adopting the
Tenth Circuit’s view that section 35.150(d) is privately
enforceable. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850,
858 (10th Cir. 2003). Accordingly, we conclude that this
issue, which was raised below and addressed on its merits by
the district court, and which underpins the validity of the
injunction at issue, is properly before us for a determination
on the merits.
B.
We review de novo whether a statute or regulation creates
a private cause of action. Townsend v. Univ. of Alaska, 543
F.3d 478, 482 (9th Cir. 2008). Whether section 35.150(d)
creates a private right of action is an issue of first impression
in this court, and one on which other circuits have split. Chaf-
fin, 348 F.3d at 858 (holding that section 35.150(d) creates a
private right of action); Ability Ctr. of Greater Toledo v. City
of Sandusky, 385 F.3d 901, 914 (6th Cir. 2004) (holding that
section 35.150(d) does not create a private right of action);
Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006)
(same). We agree with the First and Sixth Circuits and hold
that section 35.150(d) does not create a private right of action.
1. Alexander v. Sandoval
The Supreme Court’s decision in Alexander v. Sandoval,
3
Moreover, as noted below, we conclude that Lonberg’s remedy lies not
in the enforcement of a transition plan, but in the removal of barriers to
meaningful access.
8074 LONBERG v. CITY OF RIVERSIDE
532 U.S. 275 (2001), governs our analysis, as it sets forth the
framework for determining whether a federal regulation is
enforceable through a private right of action.
In Sandoval, a class of non-fluent English speakers sued the
Alabama Department of Public Safety, alleging that its
administration of an English-only driver’s license test violated
28 C.F.R. § 42.104(b)(2),4 “because it had the effect of sub-
jecting non-English speakers to discrimination based on their
national origin.” 532 U.S. at 278-79. The Court reversed an
injunction requiring the department to accommodate non-
English speakers, holding that 28 C.F.R. § 42.104(b)(2) was
not enforceable through a private cause of action. Id. at 293.
[3] The Court explained that “private rights of action to
enforce federal law must be created by Congress . . ., [and
that] [t]he judicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to create not
just a private right but also a private remedy.” Id. at 286(internal citations omitted).
The relevant statute in Sandoval was § 601 of Title VI of
the Civil Rights Act of 1964, as it was the statute that
§ 42.104(b)(2) was meant to implement.5 See id. at 278. Sec-
tion 601 bans recipients of federal funding from intentionally
discriminating against individuals “on the ground of race,
color, or national origin” in connection with any program or
activity covered by Title VI. Id. (citing 42 U.S.C. § 2000d).
The Court noted that Congress clearly intended § 601 to be
4
28 C.F.R. § 42.104(b)(2) prohibits a recipient of federal funding from
“utiliz[ing] criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color, or
national origin . . . .”
5
Section 42.104(b)(2) was promulgated under § 602 of Title VI of the
Civil Rights Act of 1964, which authorizes federal agencies “to effectuate
the provisions of [§ 601] . . . by issuing rules, regulations, or orders of
general applicability.” Sandoval, 532 U.S. at 278 (quoting 42 U.S.C.
§ 2000d-1).
LONBERG v. CITY OF RIVERSIDE 8075
enforceable through a private right of action, see id. at 280
(citing 42 U.S.C. § 2000d-7, which “expressly abrogated
States’ sovereign immunity against suits brought in federal
court to enforce Title VI”), but determined that this cause of
action did not extend to all the regulations meant to imple-
ment it.
In determining whether a particular regulation is enforce-
able through a statute’s private right of action, the Court
explained that we must look to the statute itself and determine
whether it displays Congress’s intent to create the private
right purportedly contained in the regulation. Id. at 286. The
Court stated that absent such intent, “a cause of action does
not exist and courts may not create one, no matter how desir-
able that might be as a policy matter, or how compatible with
the statute.” Id. at 286-87.
The Court determined that § 601 only banned intentional
discrimination, and said nothing about activities that may
have a discriminatory effect. Accordingly, it held that the
disparate-impact regulations, though perhaps otherwise valid,
were not enforceable through § 601’s private cause of action
because they did not “simply apply § 601[‘s]” ban on inten-
tional discrimination and instead “forbid conduct that § 601
permits.” Id. at 285. In other words, because the plain lan-
guage of § 601 only banned intentional discrimination, only
those regulations effectuating that ban could be enforced
through § 601’s private cause of action. To hold otherwise,
the Court reasoned, would allow “language in a regulation . . .
[to] conjure up a private cause of action that has not been
authorized by Congress.” Id. at 291.
[4] Thus, Sandoval instructs that because only Congress
can create a private right of action through statute, we must
examine a challenged regulation in the context of the statute
it is meant to implement. Only those regulations effectuating
the statute’s clear prohibitions or requirements are enforce-
able through the statute’s private right of action; regulations
8076 LONBERG v. CITY OF RIVERSIDE
that do not encapsulate the statutory right and corresponding
remedy are not privately enforceable.
2. Application of Sandoval to section 35.150(d)
[5] In determining whether section 35.150(d) is enforceable
through a private right of action, we look to the statute it is
meant to implement: § 202 of Title II of the ADA, which pro-
hibits discrimination by public entities on the basis of disability.6
Section 202 is enforceable through a private right of action,
Ability Center of Greater Toledo v. City of Sandusky, 385
F.3d 901, 906 (6th Cir. 2004), (citing Barnes v. Gorman, 536
U.S. 181, 184-85 (2002)), and provides that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132 (1990).
[6] The plain language of § 202 prohibits public entities
from discriminating against qualified disabled individuals in
its administration of services and programs. This prohibition
against discrimination is universally understood as a require-
ment to provide “meaningful access.” See, e.g., Mark H. v.
Lemahieu, 513 F.3d 922, 937 (9th Cir. 2008) (noting that the
ADA requires reasonable modifications necessary to ensure
“meaningful access”) (citing Southeastern Comty. College v.
Davis, 442 U.S. 397, 410 (1979)); Ability Ctr., 385 F.3d at
913 (noting Title II’s express aim of providing meaningful
access by requiring public entities to alter city streets and
sidewalks); Chaffin, 348 F.3d at 857 (noting its prior holding
that “the ADA requires public entitles to provide disabled
individuals ‘meaningful access’ ”). Section 202 says nothing
about a public entity’s obligation to draft a detailed plan and
6
Section 35.150(d) was promulgated by the Attorney General pursuant
to § 204 of the ADA, 42 U.S.C. § 12134, in order to implement § 202. See
28 C.F.R. § 35.101.
LONBERG v. CITY OF RIVERSIDE 8077
schedule for achieving such meaningful access, nor does it
create a private right to such a plan.
[7] Further, and perhaps most importantly, nothing in the
language of § 202 indicates that a disabled person’s remedy
for the denial of meaningful access lies in the private enforce-
ment of section 35.150(d)’s detailed transition plan require-
ments. See Sandoval, 532 U.S. at 286 (emphasizing that the
operative statute must display “an intent to create not just a
private right but also a private remedy”). The existence or
non-existence of a transition plan does not, by itself, deny a
disabled person access to a public entity’s services, nor does
it remedy the denial of access.7 Indeed, a public entity may be
fully compliant with § 202 without ever having drafted a tran-
sition plan, in which case, a lawsuit forcing the public entity
to draft such a plan would afford the plaintiff no meaningful
remedy. See Ability Ctr., 385 F.3d at 914; see Iverson, 452
F.3d at 101. Conversely, a public entity may have a transition
plan that complies with section 35.150(d), but may still be in
violation of § 202 by, for example, failing to alter its side-
walks in a way that provides meaningful access.
[8] We do not suggest that section 35.150(d) is invalid or
an otherwise improper exercise of agency discretion. We sim-
ply conclude that under Sandoval, it is not enforceable
through § 202’s private right of action because the obligations
it imposes are nowhere to be found in § 202’s plain language.
Moreover, requiring a public entity to create a transition plan
does not directly remedy a denial of § 202’s right to meaning-
ful access.
7
Tellingly, in his 2001 motion for partial summary judgment with
respect to the City’s transition plan, Lonberg sought no remedy other than
a declaration that the City was not in compliance with the regulation. Had
section 35.150(d) been the true vehicle to right the wrongs caused by the
City’s alleged ADA violations, Lonberg might have asked for some actual
relief in connection with his first attempt to enforce that regulation.
8078 LONBERG v. CITY OF RIVERSIDE
Our conclusions are consistent with the approach outlined
by the Sixth Circuit in Ability Center and adopted by the First
Circuit in Iverson. Ability Ctr., 385 F.3d at 914; Iverson, 452
F.3d at 100-01. Although the Tenth Circuit held otherwise in
Chaffin, it did not address whether § 202 evinced congressio-
nal intent to create a private right to a transition plan, or
whether such a plan would remedy the denial of meaningful
access. Instead, it applied Sandoval broadly to a host of ADA
regulations, and without addressing each one individually
concluded that they all “simply provide[d] the details neces-
sary to implement the statutory right created by § [202] . . .
of the ADA,” and did “not prohibit otherwise permissible
conduct.” Chaffin, 348 F.3d at 854, 857-58 (holding that 28
C.F.R. §§ 35.150, 35.151, and the Americans with Disabilities
Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. pt. 36,
app. A, were all privately enforceable).
It is true that section 35.150(d) does not “prohibit” conduct
that is otherwise permissible under § 202 as the challenged
regulation in Sandoval did with respect to § 601 of Title VI
of the Civil Rights Act. However, we read Sandoval to require
a more particularized review of the challenged regulation than
was undertaken by the Tenth Circuit in Chaffin, in addition to
a determination of whether the regulation effectuates the stat-
utory right and corresponding remedy. As set forth above, the
application of this requisite inquiry with respect to 35.150(d)
leads us to conclude that it is not enforceable through § 202’s
private right of action. This holding does not preclude another
panel from finding that other regulations promulgated to
effectuate § 202 are privately enforceable, nor does it prevent
Lonberg from pursuing his pending claims for damages and
injunctive relief raised in the other phases of this litigation.
Indeed, to the extent the City is in violation of the ADA and
its attendant regulations, Lonberg’s true remedy would lie in
an injunction requiring the actual removal of barriers that pre-
vent meaningful access.
LONBERG v. CITY OF RIVERSIDE 8079
III.
[9] Based on the foregoing, we hold that 28 C.F.R.
§ 35.150(d) is not enforceable through the private right of
action under § 202 of Title II, 42 U.S.C. § 12132, and we
REVERSE and VACATE the district court’s permanent
injunction.
SILVERMAN, Circuit Judge, dissenting:
Because I believe the City of Riverside waived its argu-
ment that 28 C.F.R. § 35.150(d) is not privately enforceable,
I dissent.
The City did not raise this defense in its answer, in a
motion to dismiss, in a motion for summary judgment, or
even at trial. Instead, the City waited until after trial — after
the district court issued a decision in Lonberg’s favor — to
argue for the first time in a motion for new trial that
§ 35.150(d) is not privately enforceable. Even worse, after
Lonberg argued in his opening brief to us that the City had
waived this argument by not raising it before trial, the City
offered not one word of rebuttal about the waiver argument.
It seems to me the City has doubly waived its argument — it
did not raise it prior to trial in the district court and it failed
to reply to the waiver argument made before us in the court
of appeals.
Under Federal Rule of Civil Procedure 12(h)(2), a Rule
12(b)(6) defense must be raised at or before trial. Here, the
City raised its defense after the trial concluded and after the
district court rendered a decision against it, even though “the
City’s [defense] may be characterized as a Rule 12(b)(6)
defense,” as the majority itself acknowledges.
Even if we have the discretion to reach this issue notwith-
standing the City’s failure to perfect it below, I do not see
8080 LONBERG v. CITY OF RIVERSIDE
why we should. The City’s belated assertion of this new
defense is most unfair to Lonberg who prevailed at trial in the
face of the defenses that were raised and litigated. Why
should the City be allowed to wait until it loses and then get
another chance to raise an entirely new non-jurisdictional
defense that was perfectly available before? This makes a
mockery of the rules of civil procedure requiring that claims
and defenses be timely raised. There are good reasons for
these rules, too — like fairness and avoidance of surprise.
What is the City’s answer to Lonberg’s assertion that the
new argument has been waived? Nothing. Not a word. In its
brief before us, the City offered no explanation whatsoever
for its failure to raise its argument earlier, or even a justifica-
tion for why the argument has not been waived. The City’s
brief is totally silent in response to Lonberg’s claim of waiver.
This failure alone counsels against the exercise of discretion
to consider the City’s new-found position at this late date.
I would affirm.