FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA BOOSE,
Plaintiff-Appellant,
No. 08-35878
v.
TRI-COUNTY METROPOLITAN D.C. No.
3:07-CV-00458-PK
TRANSPORTATION DISTRICT OF
OPINION
OREGON,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak, Magistrate Judge, Presiding
Argued and Submitted
October 8, 2009—Portland, Oregon
Filed November 23, 2009
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
15523
15526 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
COUNSEL
Karen Berkowitz, Oregon Law Center, Portland, Oregon,
argued the cause for appellant Barbara Boose and filed briefs;
Spencer M. Neal, Oregon Law Center, Portland, Oregon, and
Ellen Gradison, Oregon Law Center, Corvallis, Oregon, were
also on the briefs.
Keith M. Garza, Oak Grove, Oregon, argued the cause for
appellee TriMet and filed a brief; Kimberly Sewell, Portland,
Oregon, was also on the brief.
Susan E. Nash, Wesley T. Shih, Avi Braz, and Adam R. Law-
ton, Munger, Tolles & Olson LLP, Los Angeles, California;
and Paula Perlman, Deborah Dorfman, and Shawna Parks,
Los Angeles, California, submitted a brief in support of the
appellant on behalf of amici curiae Disability Rights Legal
Center, Disability Rights California, the California Founda-
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15527
tion for Independent Living Centers, the Disability Rights
Education and Defense Fund, Inc., Disability Rights Wash-
ington, and Disability Rights Oregon.
Tiffany Lorenzen, San Diego, California, submitted a brief in
support of the appellee on behalf of amicus curiae San Diego
Metropolitan Transit System.
James LaRusch, Washington, DC; Kenneth Scheidig, Oak-
land, California; George Sparks, Sacramento, California;
Madeline Chun, Hanson Bridgett Marcus Vlahos & Rudy,
LLP, San Francisco, California; Gregory Smith, Muncie Pub-
lic Transportation Corp., Muncie, Indiana; Tiffany Lorenzen,
San Diego, California; Ben C. Fetherston, Jr., Fetherston
Edmonds LLP, Salem, Oregon; Jenifer Ross-Amato, Denver,
Colorado; and Kevin Desmond, Seattle, Washington, submit-
ted a brief in support of the appellee on behalf of amici curiae
American Public Transportation Association, Alameda-
Contra Costa Transit District, CalACT, San Mateo County
Transit District, Golden Gate Bridge, Highway and Transpor-
tation District, Central Contra Costa Transit Authority, Mun-
cie Indiana Transit System, San Diego Metropolitan Transit
System, Salem Area Mass Transit District, Regional Trans-
portation District-Denver, and King County Department of
Transportation.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether the Americans with
Disabilities Act requires public transit systems to make cer-
tain modifications to their programs for disabled riders.
I
15528 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
A
Tri-County Metropolitan Transportation District of Oregon
(“TriMet”) is a public entity providing mass transportation
services in Multnomah, Washington, and Clackamas Counties
(generally, the Portland, Oregon metropolitan area). Pursuant
to the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., TriMet has developed and implemented a
plan for providing paratransit service for disabled riders
unable to use its fixed route system of buses and light rail.1
TriMet’s plan has been approved by the Federal Transit
Administration (“FTA”), a division of the Department of
Transportation (“DOT”), as meeting the requirements of the
ADA.
TriMet’s paratransit system, the LIFT Paratransit Program
(“LIFT”), provides door-to-door, shared-ride service twenty-
two hours a day, seven days a week, in all areas in the TriMet
district. See LIFT Rider’s Guide 6-7, available at
http://trimet.org/pdfs/lift/liftguide.pdf (last accessed Nov. 15,
2009). LIFT serves 22,600 riders, providing over 3600 rides
per day and over a million rides per year.2 See LIFT Program
Ridership and Service Statistics, available at http://trimet.org/
pdfs/lift/liftannualreport.pdf (last accessed Nov. 15, 2009).
LIFT’s fleet consists of 225 buses and 15 sedans. When no
vehicle is available, LIFT contracts with taxi companies to
1
The Department of Transportation defines “paratransit” as “compara-
ble transportation service required by the ADA for individuals with dis-
abilities who are unable to use fixed route transportation systems.” 49
C.F.R. § 37.3.
2
Although LIFT operations cost over $29 million a year, passenger rev-
enues total only $1 million. See LIFT Program Ridership and Service Sta-
tistics, available at http://trimet.org/pdfs/lift/liftannualreport.pdf (last
accessed Nov. 15, 2009). The net cost to TriMet for a LIFT trip is $26.50,
compared to $1.63 for a fixed route trip. See Tri-County Elderly and Dis-
abled Transportation Plan 7-2, available at http://trimet.org/pdfs/
publications/edplan.pdf (last accessed Nov. 15, 2009).
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15529
provide backup service. Currently, LIFT assigns vehicles to
riders based solely on the requested pickup time and location.
Barbara Boose, who suffers from a balance disorder, has
been approved by TriMet to use LIFT since 1996.3 Boose uses
LIFT to “get to medical appointments, do her grocery shop-
ping, and generally, to get around.” In 2006, she submitted a
request that LIFT accommodate her disability by scheduling
rides in only sedans or taxis, as she experiences “less dizzi-
ness and nausea” in those vehicles than in LIFT buses.
Accompanying her request was a letter from her doctor stat-
ing that “Ms. Boose has reported a number of Tri-Met [LIFT]
bus-associated traumas” that have “aggravat[ed] her condi-
tion.” He recommended “use of sedans or taxis” to “reduce
her neurological & emotional stress.” TriMet declined
Boose’s request.
B
Boose filed a complaint in the district court alleging that
TriMet’s refusal to accommodate her request violated the
ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq. She sought declaratory and injunctive relief, as well as
attorneys’ fees and costs. Boose and TriMet filed cross-
motions for summary judgment. The district court granted
TriMet’s motion and denied Boose’s motion. Boose timely
appealed.
II
[1] The sole issue presented in this appeal is whether under
the ADA and Rehabilitation Act, LIFT must accommodate
Boose pursuant to a Department of Justice (“DOJ”) regulation
requiring public entities to “make reasonable modifications in
3
TriMet approves riders for LIFT eligibility based on a self-certification
process. For the purposes of summary judgment, TriMet does not contest
whether Boose is disabled within the meaning of the ADA.
15530 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the mod-
ifications would fundamentally alter the nature of the service,
program, or activity.” 28 C.F.R. § 35.130(b)(7). This issue is
one of first impression in this circuit.4
Boose and the amici disability rights organizations argue
that this DOJ regulation applies to TriMet by its own indepen-
dent force, or in the alternative, through incorporation by ref-
erence in DOT regulations. We address these contentions in
turn.5
A
Boose and amici argue that because Title II, Part A of the
ADA, prohibits discrimination against the disabled by public
entities such as TriMet,6 42 U.S.C. § 12132,7 and the Attorney
General has the authority to promulgate regulations imple-
4
Boose suggests that this court has already weighed in on this issue in
Weinreich v. Los Angeles County Metropolitan Transportation Authority,
114 F.3d 976 (9th Cir. 1997). However, because Weinreich did not
involve a paratransit service, but rather a disabled rider’s eligibility for a
reduced-fare program for fixed route bus service, it is inapposite.
5
Boose asserted claims under both the ADA and the Rehabilitation Act,
which applies to programs receiving federal financial assistance. Because
the ADA was modeled on section 504 of the Rehabilitation Act, “courts
have applied the same analysis to claims brought under both statutes.”
Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir.
1999). We do so here as well and focus on whether TriMet has violated
the ADA.
6
TriMet is indisputably a public entity subject to Part A. See Midgett v.
Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846, 847 (9th Cir.
2001).
7
Section 12132 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 services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15531
menting Part A, id. § 12134(a), TriMet must follow the Attor-
ney General’s reasonable modification regulation.
1
Applicability of Part A to TriMet does not, however,
resolve the issue of whether the DOJ’s reasonable modifica-
tion regulation applies to LIFT, since Part A also specifically
prohibits the DOJ from making rules that “include any matter
within the scope of the authority of the Secretary of Transpor-
tation under section 12143.” Id. Hence, we must decide
whether the accommodation sought by Boose falls within the
scope of that authority.
[2] While Part A of Title II deals with public entities in
general, Part B deals with public transportation. See Olmstead
v. Zimring, 527 U.S. 581, 589 n.3 (1999). Section 12143
under Part B is titled “Paratransit as a complement to fixed
route service.” 42 U.S.C. § 12143. It provides:
It shall be considered discrimination for purposes of
[the ADA] and [the Rehabilitation Act] for a public
entity which operates a fixed route system . . . to fail
to provide . . . paratransit and other special transpor-
tation services to individuals with disabilities . . .
that are sufficient to provide to such individuals a
level of service (1) which is comparable to the level
of designated public transportation services provided
to individuals without disabilities using such system;
or (2) in the case of response time, which is compa-
rable, to the extent practicable, to the level of desig-
nated public transportation services provided to
individuals without disabilities using such system.
Id. The Secretary of Transportation has the sole authority to
“issue final regulations to carry out this section.” Id.
§ 12143(b). These regulations must establish, inter alia,
15532 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
“minimum service criteria for determining the level of ser-
vices to be required under this section.” Id. § 12143(c)(3).
[3] Boose describes her requested modification as “sched-
uling transportation for her using TriMet sedans instead of
TriMet buses.” In other words, she is dissatisfied with the
level of service TriMet currently provides through LIFT and
would like an enhanced level of service that would enable her
to choose whatever vehicle she would like to ride. Boose’s
request, therefore, fits squarely within the definition of “ser-
vice criteria.” That the DOT has not yet promulgated a rule
concerning scheduling by vehicle type8 does not mean that the
DOJ’s regulations automatically fill this regulatory vacuum.
Surely the scope of the Secretary’s authority exceeds the
extent to which he has currently regulated. Indeed, Boose
does not try to argue that the Secretary lacks the authority to
promulgate such a regulation. She even concedes that “[t]he
DOJ cannot promulgate regulations regarding transportation
. . . services. Only the DOT can do that.” We agree. Only the
Secretary of Transportation can make rules “determining the
level of services to be required” for paratransit. 42 U.S.C.
§ 12143(c)(3).
[4] If the Attorney General cannot make rules about sched-
uling paratransit trips by vehicle type, then neither can he
make rules that effectively require paratransit systems to
schedule trips by vehicle type. Application of the DOJ’s rea-
sonable modification regulation to TriMet in this instance
would do just that, in violation of the regulation’s enabling
statute. See id. § 12134(a). We decline to impose a require-
ment on TriMet that would upset the balance of authority that
8
The DOT has promulgated a regulation concerning scheduling by
desired departure time. See 49 C.F.R. § 37.131(b)(2). The heading for this
regulation, “Service criteria for complementary paratransit,” reinforces our
conclusion that scheduling trips is a service criterion. See id. § 37.131; see
also Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 229-30 (4th
Cir. 2001) (noting that “scheduling of paratransit trips” is “[o]ne of the
specified service criteria” in the DOT regulations).
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15533
Congress has carefully allocated between the Attorney Gen-
eral and Secretary of Transportation. Consequently, we con-
clude that the DOJ’s reasonable modification regulation does
not, and cannot, apply by its own independent force. See Mel-
ton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir.
2004) (holding that a reasonable modification that “relates
specifically to the operation of [a paratransit system’s] ser-
vice” is “exempt from the Attorney General’s regulations in
28 C.F.R. part 35”).
2
[5] Part A of the ADA unambiguously prevents the Attor-
ney General from regulating paratransit scheduling, which is
a “matter within the scope of the authority of the Secretary of
Transportation under section 12143.” 42 U.S.C. § 12134(a).
“If the intent of Congress is clear, that is the end of the matter
. . . .” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984).
[6] Nevertheless, we briefly address the contention that a
DOJ regulation and its preamble compel a contrary conclu-
sion. Amici focus on the language of 28 C.F.R. § 35.102(b),
which provides that “[t]o the extent that public transportation
services . . . are covered by [Part] B . . . , they are not subject
to the requirements of this part.” They also quote the language
of this regulation’s preamble:
Paragraph (b) of § 35.102 explains that to the extent
that public transportation services . . . are covered by
[Part] B . . . , they are subject to the regulations of
the [DOT] at 49 CFR part 37 and are not covered by
[28 CFR part 35]. . . . Matters not covered by subtitle
B, such as the provision of auxiliary aids, are cov-
ered by this rule.”
Nondiscrimination on the Basis of Disability in State and
Local Government Services, 56 Fed. Reg. 35,694, 35,696
15534 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
(July 26, 1991) (emphasis added); 28 C.F.R. pt. 35, App. A,
§ 35.102. Because “[t]he substitution of a sedan or taxi for a
bus is not a ‘matter covered by Part B,’ ” amici conclude that
the preamble dictates that it is “outside the scope of
§ 35.102(b)’s exception.”
Amici narrowly read the term “covered” to mean “specifi-
cally mentioned” by Part B or its implementing regulations.
This construction is at odds with the regulation’s enabling
statute, which speaks more broadly of “the scope of the
authority of the Secretary of Transportation.” 42 U.S.C.
§ 12134(a) (emphasis added). Of course, we may not read 28
C.F.R. § 35.102(b) to be inconsistent with its enabling statute
such that it enlarges the Attorney General’s jurisdiction. See
Commodity Futures Trading Comm’n v. White Pine Trust
Corp., 574 F.3d 1219, 1223 (9th Cir. 2009) (“[R]egulations
. . . cannot go beyond the jurisdictional limits of the statute.”);
Komarenko v. I.N.S., 35 F.3d 432, 435 (9th Cir. 1994) (“In
order to be valid, a regulation must be consistent with its
enabling statute.”).
[7] We are satisfied, however, that the regulation is not
actually inconsistent with the statute. The word “cover” is
defined, inter alia, as “to have width or scope enough to
include or embrace.” Webster’s Third New Int’l Dictionary
524 (1986). As we have explained, the Secretary’s authority
under Part B has scope enough to include Boose’s requested
accommodation; hence, the accommodation is a matter “cov-
ered by [Part] B” and “not subject to the requirements” of the
DOJ regulations. 28 C.F.R. § 35.102(b). In any event, we
decline the invitation to read 28 C.F.R. § 35.102(b) as
expanding the DOJ’s jurisdiction beyond the limits estab-
lished by its enabling statute, 42 U.S.C. § 12134(a).
B
Next, Boose argues that the DOJ’s reasonable modification
regulation is incorporated by reference in DOT’s regulations
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15535
implementing the ADA and Rehabilitation Act.9 She makes
this incorporation-by-reference argument because the DOT
regulations do not mention reasonable modifications, except
to the extent that they require private entities to make them.
See 49 C.F.R. § 37.5(f).
1
Boose sets forth a tidy syllogism to explain why TriMet
must accommodate her by providing her with the vehicle of
her choice. First, citing 49 C.F.R. §§ 27.19(a) and 37.21(c),
she states that the “DOT regulations adopt and incorporate
the DOJ Title II A regulations” except in the rare case that the
DOT and DOJ regulations are inconsistent. Because the DOT
regulations “do not cover the scheduling of one type of acces-
sible vehicle over another,” she finds no inconsistency. Ergo,
she concludes that the DOJ’s reasonable modification regula-
tion applies to LIFT in this instance.
However, “[f]or the conclusion to stand the content of the
premises must be true.” Schultz v. PLM Int’l, Inc., 127 F.3d
1139, 1143 (9th Cir. 1997) (Aldisert, J., dissenting). Boose’s
syllogism is based on the false premise that the DOT regula-
tions “adopt and incorporate” the DOJ regulations wholesale.
[8] The plain text of 49 C.F.R. § 37.21(c) contradicts
Boose’s interpretation. That regulation merely states that enti-
ties “may be subject to ADA regulations of the Department of
Justice,” and that the DOT regulations shall be interpreted to
be consistent with “applicable Department of Justice regula-
tions.” 49 C.F.R. § 37.21(c). Certainly, this provision refers to
DOJ regulations, but does it also incorporate them? The
DOT’s use of qualifying terms such as “may” and “applica-
ble” leads us to conclude that it does not.
9
The amici disability rights organizations expressly declined to make
this argument in their brief: “[A]mici do not argue that the DOT regula-
tions contain a reasonable modification provision. Rather, the DOJ regula-
tions impose this obligation by their own independent force.”
15536 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
If the DOT wanted to incorporate DOJ regulations by refer-
ence, it knew how to do so. With respect to private entities,
the DOT has promulgated a regulation requiring their “com-
pliance with the requirements of the rules of the Department
of Justice concerning eligibility requirements, making reason-
able modifications, providing auxiliary aids and services, and
removing barriers (28 C.F.R. §§ 36.301-306).” Id. § 37.5(f).
This provision lists the specific DOJ regulations that apply by
both description and number. It clearly incorporates them by
reference, in contradistinction to section 37.21(c).10
[9] That the DOT regulation implementing the Rehabilita-
tion Act uses mandatory rather than permissive language does
not change our analysis. Under that regulation, “[r]ecipients
[of federal financial assistance] . . . shall comply with all
applicable requirements of the [ADA] including . . . the regu-
lations of the Department of Justice implementing [Title II]
. . . of the ADA.” 49 C.F.R. § 27.19(a) (emphasis added).
However, because this regulation also uses the qualifying
term “applicable,” it does not purport to extend the reach of
the ADA and its implementing regulations. See Transporta-
tion for Individuals with Disabilities, 56 Fed. Reg. 45,584,
45,584 (Sept. 6, 1991) (noting that section 27.19 was
amended to clarify that “[t]he basic relationship between sec-
tion 504 [of the Rehabilitation Act] and the ADA is that a
recipient of DOT funds complies with its section 504 obliga-
tions by complying with its ADA obligations.”). Boose cites
10
Boose argues that the preamble and appendix to 49 C.F.R. § 37.21
support her contention that this provision incorporates the DOJ regulations
by reference. The preamble states that “most, if not all, transportation pro-
viders covered by Part 37 are also covered by DOJ regulations.” 56 Fed.
Reg. at 45,588. The appendix states that “[t]he DOT rules apply only to
[a public] entity’s transportation facilities, vehicles, and services; the
DOJ’s rules may cover the entity’s activities more broadly.” 49 C.F.R. pt.
37, App. D, § 37.21. However, to say that public entities providing trans-
portation services “may be subject” to DOJ rules that “cover the entity’s
activities more broadly” does nothing to validate Boose’s incorporation-
by-reference argument.
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15537
no authority for the proposition that the Rehabilitation Act
confers greater substantive rights to disabled riders of para-
transit services than the ADA. Therefore, we read the DOT
regulations to be consistent with each other.
2
Boose urges us to adopt her interpretation of 49 C.F.R.
§ 37.21(c) based on her assertion that the Secretary of Trans-
portation has agreed with her, and that we should defer to the
Secretary’s interpretation of his own regulation under Auer v.
Robbins, 519 U.S. 452, 461 (1997) (holding that an agency’s
interpretation of its own regulation is “controlling unless
plainly erroneous or inconsistent with the regulation” (internal
quotation marks omitted)).
[10] In a 2006 notice of proposed rulemaking, the Secretary
purported to “clarify that . . . public transportation entities
required to provide complementary paratransit service[ ] must
make reasonable modifications to their policies and practices
to ensure program accessibility.” 71 Fed. Reg. at 9762.
Although the Secretary acknowledged that “the DOT ADA
regulations do not include language specifically requiring reg-
ulated parties to make reasonable modifications,” he
explained that the DOT, “when drafting 49 CFR part 37,
assumed that § 37.21(c) would incorporate the DOJ provi-
sions on this subject.” Id. (emphasis added). However, the
Secretary noted that because the Melton court had concluded
otherwise, the Secretary “believe[d] that it would be useful to
amend [the DOT] rules to clarify them.”11 Id.
It is now over three years later, and the Secretary has not
finalized these proposed rules. However, a recent FTA letter
11
To that end, the Secretary proposed adding a paragraph to sections
27.7 and 37.5, the general nondiscrimination regulations under the ADA
and Rehabilitation Act, to impose a reasonable modification requirement.
71 Fed. Reg. 9762, 9767-68.
15538 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
of finding reiterated the Secretary’s position: “Although the
requirement for public entities to make reasonable modifica-
tions in their policies and practices is not explicitly addressed
in the DOT ADA regulations, it is included in DOJ regula-
tions, which are incorporated by reference at 49 CFR
§ 37.21(c).” FTA Ltr. of Finding (Aug. 14, 2008) at 4.12
[11] We decline Boose’s invitation to defer to the 2006 pre-
amble and the 2008 letter of finding. As we have already
explained, any interpretation of section 37.21(c) as incorpo-
rating DOJ regulations by reference is plainly erroneous. The
regulation merely reminds public entities that another set of
provisions “may” apply. It does not, as Boose contends,
impose any additional substantive requirements. Because the
Secretary’s interpretation conflicts with the plain language of
the regulation, it is not controlling under Auer.13 “To defer to
the agency’s position would be to permit the agency, under
the guise of interpreting a regulation, to create de facto a new
regulation.” Christensen v. Harris County, 529 U.S. 576, 588
(2000). We will not, under the guise of deference, engage in
an end-run around notice-and-comment rulemaking. Until the
Secretary formally promulgates the proposed regulations, Tri-
Met is not required to follow them.
12
This letter of finding does not appear to be publicly available but was
included in Boose’s reply brief. We granted her motion for judicial notice
of the letter.
13
That the DOT’s interpretations are contained in informal statements
such as a preamble and letter of finding does not vitiate the level of defer-
ence we accord it. See Or. Paralyzed Veterans of Am. v. Regal Cinemas,
Inc., 339 F.3d 1126, 1131 n.6 (9th Cir. 2003). Nor does the fact that the
DOT has changed its views on reasonable modifications over the years
present a “separate ground for disregarding [its] present interpretation,”
since the DOT’s “recourse to notice-and-comment rulemaking in an
attempt to codify its new interpretation” creates “no unfair surprise.” Long
Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007).
BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION 15539
III
We recognize the importance of paratransit systems for dis-
abled individuals like Barbara Boose. We are mindful, how-
ever, that the ADA requires only a “comparable” level of
service, 42 U.S.C. § 12143(a), and the DOT regulations
implementing the ADA “do not contemplate perfect service”
for the disabled. Midgett v. Tri-County Metro. Transp. Dist.
of Oregon, 254 F.3d 846, 849 (9th Cir. 2001). As the DOT
has explained:
Under the ADA, complementary paratransit is not
intended to be a comprehensive system of transpor-
tation for individuals with disabilities. Another way
of saying this is that the ADA does not attempt to
meet all the transportation needs of individuals with
disabilities. . . . [T]he ADA is intended simply to
provide to individuals with disabilities the same
mass transportation service opportunities everyone
else gets, whether they be good, bad, or mediocre.
56 Fed. Reg. at 45,601.
[12] The Secretary of Transportation has the sole authority
to “determin[e] the level of services” that paratransit systems
must provide to be considered “comparable.” 42 U.S.C.
§ 12143(c)(3); 49 C.F.R. § 37.121(b). Although the Secretary
has apparently decided that paratransit systems should make
reasonable modifications to be considered comparable, he has
yet to issue the final rules that would impose such a require-
ment. Because TriMet is not currently required to consider
Boose’s requested modification, she cannot make out a prima
facie case of discrimination under the ADA or the Rehabilita-
tion Act.14
14
In light of the foregoing, we need not consider TriMet’s argument that
its compliance with its paratransit plan, 42 U.S.C. § 12143(c)-(e), creates
a safe harbor under the ADA.
15540 BOOSE v. TRI-COUNTY METROPOLITAN TRANSPORTATION
Accordingly, the order of the district court granting sum-
mary judgment to TriMet is AFFIRMED.15
15
The motions of the disability rights organizations and public transit
entities for leave to file amicus curiae briefs are granted, and the briefs are
ordered filed.