Toomer v. City Cab

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

BARBARA TOOMER, an individual;
DISABLED RIGHTS ACTION
COMMITTEE, a Utah nonprofit
corporation, No. 05-4091

Plaintiffs - Appellants,

v.

CITY CAB, a Utah corporation; UTE
CAB, a Utah corporation; YELLOW
CAB DRIVERS ASSOCIATION, a
Utah corporation,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 04-CV-397-DAK)

Richard F. Armknecht, III, Armknecht & Cowdell, P.C., Lindon, Utah, for
Plaintiffs - Appellants.

Donald J. Winder (and John W. Holt, with him on the brief), Winder & Haslam,
P.C, Salt Lake City, Utah, for Defendants - Appellees.

Before KELLY, McKAY, and O’BRIEN, Circuit Judges.

KELLY, Circuit Judge.
 Plaintiffs-Appellants Barbara Toomer and the Disabled Rights Action

Committee (collectively, “DRAC”) appeal from the district court’s grant of

summary judgment in favor of Defendants-Appellees City Cab Company, Inc.,

Ute Cab Company, Inc., and Yellow Cab Drivers Association Inc. (collectively,

“Cab Companies”), arising from DRAC’s claim that the Cab Companies operated

in violation of Title III of the American with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12181-12189. DRAC sought to require the Cab Companies to provide service

to powered wheelchair users, contending that the Cab Companies were using new

vehicles that were required to be ADA compliant. The district court concluded

there was no ADA violation because the term “new vehicle” meant vehicles with

no prior use, not, as DRAC contended, vehicles manufactured after the effective

date of the ADA. Toomer v. City Cab Co., 2005 WL 67091 (D. Utah Jan. 10,

2005). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

The relevant facts are essentially undisputed. On May 3, 2004, DRAC filed

its complaint in federal district court against the Cab Companies. Aplt. App. at 7.

DRAC sought an injunction for violation of Title III of the ADA and damages for

nuisance. Id. at 16, 18. The district court dismissed the nuisance claim and upon

subsequent summary judgment motion by the Cab Companies, Aplee. Supp. App.

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at 1-8, dismissed the ADA claim. Aplt. App. at 84-89. DRAC moved for

reconsideration, id. at 90-91, which the district court denied, id. at 99-104. This

appeal followed.

Discussion

A. Statutory Language at Issue

The ADA provides:

No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of specified public
transportation services provided by a private entity that is
primarily engaged in the business of transporting people and
whose operations affect commerce.

42 U.S.C. § 12184(a). There is no dispute that the Cab Companies are subject to

this provision. The ADA defines “discrimination” as including:

the purchase or lease by such entity of a new vehicle (other than
an automobile, a van with a seating capacity of less than 8
passengers, including the driver, or an over-the-road bus) . . .
that is not readily accessible to and usable by individuals with
disabilities . . .

42 U.S.C. § 12184(b)(3). Discrimination also includes:

the purchase or lease by such entity of a new van with a seating
capacity of less than 8 passengers, including the driver, which
is to be used to provide specified public transportation and for
which a solicitation is made after the 30th day following the
effective date of this section that is not readily accessible to and
usable by such individuals . . . .

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 42 U.S.C. § 12184(b)(5).

Here, DRAC argues that the word “new” means a vehicle manufactured

after the effective date of the ADA. Aplt. Br. at 29; see also Pub. L. No. 101-336

§ 310 (effective dates of Title III). The Cab Companies argue that “new” means

“not previously used.” The Cab Companies operate vehicles and/or vans that seat

eight or more passengers that have been previously used, Aplee. Supp. App. at 4-

5; at least some of the cab companies operate vans (seating capacity unknown)

that were manufactured after the effective date of the ADA. Aplt. App. at 41-42.

B. Standard of Review

We review the grant of summary judgment de novo and apply the same

legal standard used by the district court. Pippin v. Burlington Res. Oil And Gas

Co., —F.3d—, 2006 WL 337586, *3 (10th Cir. Feb. 14, 2006). Summary

judgment is proper if the evidence, viewed in the light most favorable to the

non-moving party, presents no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Id. The construction and applicability

of a federal statute is a question of law reviewed de novo. Robbins v. Chronister,

—F.3d—, 2006 WL 172357 (10th Cir. Jan. 25, 2006); Foutz v. United States, 72

F.3d 802, 804 (10th Cir. 1995) (the construction of federal statutes is a question

of law).

C. Analysis

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 The core issue in this case is the meaning of the term “new” as used in 42

U.S.C. § 12184(b). The statute provides no specific definition of “new” within

the ADA. See 42 U.S.C. § 12102.

When construing a statute, we should give effect, if possible, to every

clause and word. Chickasaw Nation v. United States, 534 U.S. 84 (2001) (citing

United States v. Menasche, 348 U.S. 528, 538-539 (1955)); see also Hain v.

Mullin, —F.3d—, 2006 WL 158892, *1 (10th Cir. Jan. 23, 2006) (quoting Duncan

v. Walker, 533 U.S. 167, 174 (2001)). We must construe the words of the statute

in their ordinary, everyday sense. Smith v. United States, 508 U.S. 223, 228-29

(1993); Malat v. Riddell, 383 U.S. 569, 572 (1966); see also Harbert v.

Healthcare Servs. Group, Inc., 391 F.3d 1140, 1148 (10th Cir. 2004). If the terms

of the statute are clear and unambiguous, the inquiry ends and we simply give

effect to the plain language of the statute. Sullivan v. Stroop, 496 U.S. 478, 482

(1990); see also Anderson v. United States Dep’t of Labor, 422 F.3d 1155, 1177

(10th Cir. 2005); Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986). “The

plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Anderson, 422 F.3d at 1177.

Here, both DRAC and the Cab Companies begin by arguing that the word

“new” is unambiguous. Aplt. Br. at 26 n.7; Aplee. Br. at 9, 11. They urge that

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different meanings of “new” are clear from the ADA’s plain language. As noted

above, DRAC contends that “new” means any vehicle manufactured after the

passage of the ADA, while the Cab Companies contend that “new” means not

previously used. Both are plausible interpretations–the statute is ambiguous with

respect to the word “new.”

DRAC’s argument that the congressional purpose in enacting the ADA

renders the term “new” unambiguous is unpersuasive. We do not disagree that the

broad, general purpose of the ADA was to eliminate discrimination against people

with disabilities. Nor do we disagree that accessible transportation was a “critical

component” of the ADA. See H.R. Rep. 101-485(II), at 37 (1990); H.R. Rep.

101-485(IV), at 23 (1990). 1 But the ADA does not seek to equalize without

exception. The ADA does not require all accommodation at any cost for all

disabilities. For example, we have held that the ADA does not require

accommodation of oversized mobility devices. Kiernan v. Utah Transit Auth.,

339 F.3d 1217, 1222 (10th Cir. 2003). The ADA does not mandate that all

private transportation entities provide accessible vehicles—a taxi fleet consisting

entirely of non-accessible vehicles would be in accord with the ADA. See 42

U.S.C. § 12184(b)(3). Witness testimony before Congress preceding the passage

1
The parties have not cited, nor have we discovered, any congressional
record addressing the specific question before us in this case—the definition of
“new.” See H.R. Rep. No. 101-485 (Parts I-IV); H. Conf. R. No. 101-596.

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of the ADA recognized that costs were a consideration in determining which

facilities had to be accessible, and what changes had to be made, and Congress

balanced accordingly. H.R. Rep. 101-485(II), at 35-36 (1990); see also 42 U.S.C.

§ 12182(b)(2)(A)(iv) (requirement that barriers be removed when readily

achievable). These limitations demonstrate that the ADA is more nuanced than

DRAC suggests. As such, we cannot say that Congress unambiguously intended

to include all vehicles manufactured after the effective date of the ADA, rather

than vehicles that have not been previously used.

Nor are we persuaded by the Cab Companies’ argument that the agency

regulations render the word “new” unambiguous. We look to the agency

regulations only after we determine the relevant statutory term to be ambiguous.

General Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004); see also Arco

Oil and Gas, Co. v. Environmental Protection Agency, 14 F.3d 1431, 1434-1436

(10th Cir. 1993).

Because we find the statute is ambiguous as to what “new” means, we must

look to any relevant agency interpretation or definition and defer to the agency if

it has based its definition on a permissible construction. Chevron, U.S.A. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Seneca-

Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1037

(10th Cir. 2003); Pharmanex v. Shalala, 221 F.3d 1151, 1154 (10th Cir. 2000).

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As the Cab Companies argue, agency construction is permissible unless it is

arbitrary, capricious or manifestly contrary to the statute. Chevron, 467 U.S. at

842-44; Seneca-Cayuga Tribe, 327 F.3d at 1037; Pharmanex, 221 F.3d at 1154.

The Department of Transportation (“DOT”) has defined a “new vehicle” as

one “which is offered for sale or lease after manufacture without any prior use.”

49 C.F.R. § 37.3. DRAC contends that we should not defer to the DOT’s

interpretation because the agency did not apply its expertise, resulting in a

regulatory definition that is arbitrary and capricious and one that may be rejected

in favor of one in accord with the ADA’s fundamental purpose. As we discuss

below, the DOT’s definition, drawing on an ordinary meaning of “new,” is a

permissible construction that is not arbitrary, capricious or contrary to statute.

Chevron deference is warranted when it “appears that Congress delegated

authority to the agency generally to make rules carrying the force of law, and that

the agency interpretation claiming deference was promulgated in the exercise of

that authority.” Gonzales v. Oregon, 126 S.Ct 904, 915 (2006) (quoting United

States v. Mead Corp., 533 U.S. 218, 226-27 (2001)). Congress explicitly vested

the Secretary of Transportation with the authority to “issue regulations in an

accessible format to carry out sections 12182(b)(2)(B) and (C) of this title and to

carry out section 12184 of this title (other than subsection (b)(4)).” 42 U.S.C. §

12186(a)(1). Congress also required that the agency regulations be consistent

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with “the minimum guidelines and requirements issued by the Architectural and

Transportation Barriers Compliance Board.” 42 U.S.C. § 12186(c). The

Architectural and Transportation Barriers Compliance Board (“ATBCB”) is

comprised of the twelve executive cabinet members and thirteen members of the

public, appointed by the President and of whom at least a majority are persons

with disabilities. 29 U.S.C. § 792(a)(1)(A) and (B). The ATBCB conducts

investigations, holds public hearings and issues any order it deems necessary to

ensure ADA compliance. Id. at (e). Among the purposes of the ATBCB is to

establish and maintain minimum guidelines for ADA compliance and to promote

accessibility though all segments of society. 29 U.S.C. § 792(a)(2)(B)(b). Of

importance here, the ATBCB also defines “new vehicle” as “a vehicle which is

offered for sale or lease after manufacture without any prior use.” 2 ADA

Accessibility Guidelines for Transportation Vehicles § 1192.3 (available at

http://www.access-board.gov/transit/html/vguide.htm#AD, last checked Mar. 13,

2006). The agency definition, therefore, is wholly consistent (in fact, identical)

2
DRAC’s argument that the agency definition need not follow from the
ATBCB’s establishment of minimum requirements is correct, Aplt. Reply at 13, to
the extent that the agency would be free to go above and beyond the ATBCB.
DRAC fails, however to persuade us that the ATBCB’s definition is not heavily
instructive on whether the DOT’s definition is arbitrary or capricious. Moreover,
DRAC’s conclusory statement that the ATBCB’s definition is “far below the
‘minimum’”, Id. (emphasis in original), is not accurate, as Congress specifically
authorized the ATBCB to determine what in fact the minimum is.

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with the specialized board that Congress entrusted with ensuring agency

compliance. 3 As such, we must reject DRAC’s argument that the DOT is not

entitled to Chevron deference because it acted without “expertise.” Agencies are

presumed to have institutional competence, Chevron, 467 U.S. at 844, and DRAC

fails to sufficiently rebut that presumption here. 4

If the Cab Companies do in fact exploit this “gaping loophole,” Aplt. Reply

Br. at 8, 11, DRAC’s remedy lies with Congress, not the courts. See Robbins,

2006 WL 172357 (quoting Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461-

62 (2002)). The agency interpretation creates a loophole no greater than other

limitations on accommodation requirements already contained in the ADA. In

light of the deference we accord agency regulations under Chevron, the DOT’s

definition of “new vehicle” controls here. The agency definition is consistent

3
We also note that the DOT explicitly considered, and rejected, DRAC’s
proposed definition. Aplee. Supp. App. at 69.
4
DRAC argues several reasons why the DOT is not entitled to deference
here: (1) the DOT did not apply its specialized experience and expertise because
it observed as an “oddity” the difference between the requirements for ‘private,
not primarily’ and ‘private, primarily’ where the former is required to make
accessible all vehicles while the latter is required to make accessible only unused
vehicles, Aplt. Br. at 25, 27; and (2) the DOT did not specify its reasons for the
definition, Aplt. Br. at 29. The “oddity” language in the DOT commentary
addresses the oddity of having different requirements for ‘private, not primarily’
and ‘private, primarily’ and does not suggest that the “used vehicle” exception is
what is in fact odd. Nor is the DOT required to set forth reasons for its
regulations. Regardless, neither of these reasons are compelling enough to
overcome the presumption of institutional competence, especially in light of the
ATBCB’s identical definition.

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with one of the common usages of “new,” is identical to the ATBCB’s definition

and is consistent with the ADA’s purpose of providing for accommodation with

certain limitations. The definition is not arbitrary, capricious or contrary to

congressional intent.

We deny the Cab Companies’ request for attorney’s fees. To the extent that

the Cab Companies’ request is an appeal from the district court’s denial of an

award for fees below, they failed to file a timely notice of cross-appeal. See Fed.

R. App. P. 4(a)(3). To the extent the Cab Companies’ request is one for appellate

costs, we find that DRAC presented non-frivolous and colorable arguments on

appeal, and thus exercise our discretion to deny fees. See Hoyt v. Robson

Companies, Inc., 11 F.3d 983, 984 (10th Cir. 1993).

AFFIRMED.

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