Iverson v. City of Boston

United States Court of Appeals
For the First Circuit

No. 05-2697

G. DAVID IVERSON AND ACCESS WITH SUCCESS, INC.,

Plaintiffs, Appellants,

v.

CITY OF BOSTON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Lipez and Howard,
Circuit Judges.

Nicholas S. Guerrera, with whom Shaheen Guerrera & O'Leary LLC
was on brief, for appellants.
Kate Cook, Assistant Corporation Counsel, for appellee.

June 30, 2006
 SELYA, Circuit Judge. This case requires us to decide

whether the self-evaluation and transition plan regulations

promulgated by the Attorney General under Title II of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, are

enforceable through a private right of action. Two of our sister

circuits have divided over the appropriate answer to this thorny

question. Compare Ability Ctr. of Greater Toledo v. City of

Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (holding that the

transition plan regulation is not so enforceable), with Chaffin v.

Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir. 2003) (holding

that both the self-evaluation and transition plan regulations are

enforceable in that manner). After careful consideration, we

conclude that recent Supreme Court precedent dashes any hope that

these regulations are so enforceable. We also conclude that the

plaintiffs' other arguments are unavailing and, accordingly, affirm

the district court's grant of summary judgment in the defendant's

favor.

I. BACKGROUND

Plaintiff-appellant G. David Iverson resides in Boston,

Massachusetts. He is a paraplegic who uses a wheelchair in order

to move about the city. Paraplegia qualifies as a disability

within the meaning of the ADA. See 42 U.S.C. § 12102(2)(A)

(defining "disability" for ADA purposes as "a physical or mental

impairment that substantially limits one or more . . . major life

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activities"). Plaintiff-appellant Access with Success, Inc. (AWS)

is a non-profit group, of which Iverson is a member, that advocates

equal access to public programs, services, and facilities for

disabled persons.

On August 20, 2004, the plaintiffs filed suit in the

federal district court alleging that defendant-appellee City of

Boston had failed to provide disabled persons with equal access to

its programs, services, and facilities. The gravamen of the

complaint was that many municipal facilities, including streets,

sidewalks, and public buildings, lacked adequate means of ingress

and egress for wheelchair-bound persons. The complaint made

particular mention of the condition of municipal sidewalks,

charging that they "lack proper curb cuts and/or curb ramps" and

"contain obstacles which block or impede the accessible path of

travel."

The plaintiffs' complaint contained three statements of

claim. Count 1 alleged that the self-evaluation and transition

plan regulations promulgated by the Attorney General under Title II

of the ADA, see 28 C.F.R. §§ 35.105, 35.150(d), imposed an

affirmative obligation on the City both to evaluate its conformance

with the ADA and to make structural changes to bring its existing

facilities into compliance; that the City failed to satisfy the

regulatory mandate within the allotted time frame; and that the

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plaintiffs were entitled to remedy this failure via a private right

of action.

Count 2 of the complaint incorporated the allegations

contained in count 1 and charged that the City's default of its

regulatory obligations could be corrected through the

instrumentality of a private right of action under section 504 of

the Rehabilitation Act. See 29 U.S.C. § 794(a) (providing that

"[n]o otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance"). The plaintiffs represent that counts 1 and

2 are intended to be "mirror images" of each other. Since the

parties have briefed and argued this appeal as though the ADA and

Rehabilitation Act claims are coterminous, we construe counts 1 and

2 as presenting a single claim. Cf. Theriault v. Flynn, 162 F.3d

46, 48 n.3 (1st Cir. 1998) (noting that "Title II of the ADA was

expressly modeled after Section 504 of the Rehabilitation Act, and

is to be interpreted consistently with that provision"). For ease

in reference, we discuss that claim in terms of the ADA.

Count 3 of the complaint asserted a parallel state-law

cause of action under Mass. Const. art. 114 and Mass. Gen. Laws ch.

93, § 103. The district court dismissed that claim without

prejudice for failure to exhaust state administrative remedies.

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Inasmuch as the plaintiffs do not fault that dismissal, we make no

further allusion to count 3.

The City moved to dismiss. See Fed. R. Civ. P. 12(b).

As to counts 1 and 2, the City proffered three grounds for

dismissal: (i) that the plaintiffs failed to allege any specific

injury and, therefore, lacked standing to sue; (ii) that the self-

evaluation and transition plan regulations were not enforceable by

means of a private right of action; and (iii) that the claims were

time-barred.

The plaintiffs directed their opposition mainly to the

standing challenge. In an attempt to establish that Iverson and

other wheelchair-bound persons within AWS's constituency had

suffered concrete injuries as a result of the City's regulatory

noncompliance, the plaintiffs served two affidavits.

In the first of these, Iverson chronicled his

difficulties in operating his wheelchair in the area near his home

due to the substandard condition of municipal streets and

sidewalks, protested the dearth of accessible parking spots in the

neighborhoods he frequents, and complained of "numerous obstacles

to access" at the Boston Public Library. The second affidavit,

from another AWS member, contained comparable statements. These

two affidavits, the plaintiffs posited, defeated the claim that

they lacked standing.

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 As to the second and third proffered grounds for

dismissal, the plaintiffs' opposition reiterated the bald-faced

claim that the self-evaluation and transition plan regulations were

enforceable by private rights of action. The opposition also

explained why, in the plaintiffs' view, no applicable statute of

limitations barred the suit. The plaintiffs made no mention of —

and no attempt to develop — any alternate theory of municipal

liability.

While the plaintiffs maintained that the complaint

contained sufficient allegations to establish both standing and a

right to relief under Title II, they invited the district court, in

the alternative, either to grant leave to amend the complaint to

incorporate the factual averments contained in the affidavits or to

treat the motion to dismiss as a motion for summary judgment (and,

thus, bring the affidavits into play). The district court accepted

the second of these alternatives and converted the motion to

dismiss into a motion for summary judgment. See Fed. R. Civ. P.

12(b); see also Fed. R. Civ. P. 56(c).

The court proceeded to grant summary judgment in the

City's favor. Acknowledging that the plaintiffs had encountered

"hindrances" in the use of public facilities and assuming that the

City had failed seasonably to comply with the self-evaluation and

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transition plan regulations,1 the court decided the case on the

ground that the plaintiffs had not demonstrated any causal

connection between the City's alleged regulatory noncompliance and

the plaintiffs' alleged injuries.

The plaintiffs filed a timely motion for reconsideration,

see Fed. R. Civ. P. 59(e), asseverating that the district court's

judgment rested upon two errors of law, namely, (i) that in finding

an absence of causation, the court applied an overly demanding

pleading standard and (ii) that the court had disregarded the

plaintiffs' barrier-removal claim. Following the summary denial of

the motion for reconsideration, this appeal ensued.

II. ANALYSIS

On appeal, the plaintiffs' principal position is that the

self-evaluation and transition plan regulations are enforceable via

private rights of action and that they made out a trialworthy issue

as to whether the City had complied with these regulations. Their

fallback position is that the case, at the very least, should have

been allowed to proceed on their alternate barrier-removal theory.

Finally, the plaintiffs assign error to the denial of their motion

for reconsideration. After briefly delineating the standard of

review, we consider these points one by one.

1
The City asserts that it did, in fact, conduct the obligatory
self-evaluation and develop the requisite transition plan within
the allotted time span. Our resolution of this case renders this
factual dispute immaterial.

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 A. The Standard of Review.

The applicable standard of review is familiar: we assay

a district court's entry of summary judgment de novo. See DePoutot

v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005). In conducting

this tamisage, we construe the evidence in the light most

flattering to the nonmovants (here, the plaintiffs) and indulge all

reasonable inferences in their favor. Garside v. Osco Drug, Inc.,

895 F.2d 46, 48 (1st Cir. 1990). We are not, however, tied to the

district court's rationale but may affirm the judgment on any

ground revealed by the record. See Houlton Citizens' Coal. v. Town

of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

Summary judgment is appropriate only where the record,

construed in the manner limned above, discloses "no genuine issue

of material fact" and demonstrates that "the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

An issue is genuine if "it may reasonably be resolved in favor of

either party" at trial, Garside, 895 F.2d at 48, and material if it

"possess[es] the capacity to sway the outcome of the litigation

under the applicable law," Cadle Co. v. Hayes, 116 F.3d 957, 960

(1st Cir. 1997) (citation and internal quotation marks omitted).

The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that a

trialworthy issue persists. Celotex Corp. v. Catrett, 477 U.S.

317, 322-24 (1986); Garside, 895 F.2d at 48. Withal, a measure of

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factual specificity is required; "a conglomeration of 'conclusory

allegations, improbable inferences, and unsupported speculation' is

insufficient to discharge the nonmovant's burden." DePoutot, 424

F.3d at 117 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990)).

B. The Regulatory Noncompliance Claim.

Congress enacted the ADA "to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.

§ 12101(b)(1). Title I of the ADA proscribes disability-related

discrimination in employment matters. See id. § 12112. Title III

proscribes disability-related discrimination in the provision of

public accommodations such as hotels, restaurants, and theaters.

See id. §§ 12182, 12184. This case involves Title II, which

broadly 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." Id. § 12132. A "qualified individual with a

disability" is

an individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural, communication, or
transportation barriers, or the provision of
auxiliary aids and services, meets the
essential eligibility requirements for the
receipt of services or the participation in

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 programs or activities provided by a public
entity.

Id. § 12131(2). The term "public entity" includes "any State or

local government" as well as "any department, agency, special

purpose district, or other instrumentality of a State or States or

local government." Id. § 12131(1)(A)-(B). The City does not

dispute that Iverson is a qualified individual with a disability or

that it is a public entity.

The clear purport of Title II is to guarantee that

qualified disabled persons enjoy meaningful access to public

services, programs, and activities. See Tennessee v. Lane, 541

U.S. 509, 531-32 (2004). To this end, the ADA authorizes the

Attorney General to promulgate regulations implementing its

provisions. See 42 U.S.C. § 12134(a).

Promulgated under this authority, the self-evaluation

regulation directed all public entities, by April 5, 1994, to

"evaluate [their] current services, policies, and practices, and

the effects thereof" for compliance with Title II. 28 C.F.R. §

35.105(a). If this self-evaluation indicates the need for

modification of a public service, policy, or practice in order to

achieve Title II compliance, the public entity is directed to make

the modification. See id.

A second regulation addresses a public entity's

responsibilities vis-à-vis "existing facilities," a phrase that

includes "all or any portion of [its] buildings, structures, sites,

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complexes, . . . roads, walks, [and] passageways" that were in

existence at the time of the ADA's enactment. Id. § 35.104.

Consistent with Title II's emphasis on "program accessibility," the

regulatory scheme generally does not require public entities to

retrofit their existing facilities. See Lane, 541 U.S. at 532; see

also 28 C.F.R. § 35.150(a)(1). Rather, the regulations permit a

public entity to select among a number of alternatives for

accomplishing program accessibility, including the relocation of

services, the reassignment of personnel, and the structural

modification of existing facilities. See 28 C.F.R. § 35.150(b)(1).

In all events, public entities are excused from undertaking any

compliance measures that "impose an undue financial or

administrative burden, threaten historic preservation interests, or

effect a fundamental alteration in the nature of the service."

Lane, 541 U.S. at 532 (citing 28 C.F.R. § 35.150(a)(2)-(3)).2

If structural changes to existing facilities are to be

undertaken to accomplish program accessibility, the transition plan

regulation directs a qualifying public entity to "develop, within

2
The regulations governing a public entity's construction of
new facilities and its voluntary alteration of existing facilities
are far more demanding. When a public entity undertakes such an
endeavor, it must, to the maximum extent feasible, ensure that the
newly constructed or renovated facility "is readily accessible to
and usable by individuals with disabilities." 28 C.F.R. §
35.151(a)-(b). With respect to newly constructed or altered
streets and sidewalks, the regulations require the installation of
curb cuts or comparable means of ingress and egress for disabled
persons. See id. § 35.151(e)(1)-(2).

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six months of January 26, 1992, a transition plan setting forth the

steps necessary to complete such changes." 28 C.F.R. §

35.150(d)(1). Public entities with responsibility over streets,

roads, or walkways bear an additional burden; the regulation

requires those entities to craft, in their transition plan, "a

schedule for providing curb ramps or other sloped areas where

pedestrian walks cross curbs, giving priority to walkways serving

. . . State and local government offices and facilities,

transportation, places of public accommodation, and employers."

Id. § 35.150(d)(2). And, finally, the transition plan regulation

mandates that any structural changes to existing facilities "be

made within three years of January 26, 1992, but in any event as

expeditiously as possible." Id. § 35.150(c).

It is beyond peradventure that, in certain aspects, Title

II creates a private right of action against noncompliant public

entities. See 42 U.S.C. § 12133; see also Lane, 541 U.S. at 517.

Here, however — with the exception of their fallback argument, to

which we shortly shall return — the plaintiffs do not claim a

direct violation of Title II; instead, they claim violations of,

and concomitant rights to enforce, the self-evaluation and

transition plan regulations. As we explain below, this is an

important distinction.

An implementing regulation may under certain

circumstances be enforced through the private right of action

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available under the organic statute that it implements. See

Alexander v. Sandoval, 532 U.S. 275, 284-85 (2001). Under

Sandoval, however, a private plaintiff may not, merely by

referencing the organic statute, enforce regulations that interdict

a broader swath of conduct than the statute itself prohibits.

After all, the power to create a private right of action, like the

power to create positive federal law itself, lies exclusively with

Congress. See id. at 286; Bonano v. E. Carib. Airline Corp., 365

F.3d 81, 84 (1st Cir. 2004). Accordingly, a private right of

action may be conceived only by a statute that clearly evinces

congressional intent to bestow such a right. See Sandoval, 532

U.S. at 286-87.

Sandoval itself aptly illustrates this point. Citing the

tenet described above, the Sandoval Court held that an implementing

regulation, on its own, cannot create a private right of action.

See id. at 291; see also Bonano, 365 F.3d at 84.

To be sure, this holding does not foreclose all private

regulatory enforcement. Although a regulation "may not create a

right that Congress has not," it "may invoke a private right of

action that Congress through statutory text created." Sandoval,

532 U.S. at 291. Thus, while it is vecordious to speak in terms of

a cause of action to enforce an implementing regulation separate

and apart from its organic statute, a regulation that simply

effectuates an express mandate contained in the organic statute may

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nonetheless be enforceable through the private right of action

available under the statute itself. See id. at 284. In contrast,

a regulation that announces an obligation or a prohibition not

imposed by the organic statute may not be enforced under the aegis

of a statutory right of action. See id. at 284-85. So viewed, the

dispositive question is whether the regulation either forbids

conduct that the statute allows or imposes an obligation beyond

what the statute mandates. If that question produces an

affirmative answer, the regulation is not privately enforceable.

See id.

Applying these principles, the Sixth Circuit has held

that the transition plan regulation is not enforceable through the

instrumentality of Title II's private right of action. See Ability

Ctr., 385 F.3d at 913-15. Although the development of a transition

plan "may ultimately facilitate compliance with Title II," the

court explained, "there is no indication that a public entity's

failure to develop a transition plan [seriously] harms disabled

individuals" or that a public entity cannot make its services,

programs, or activities accessible to qualified disabled persons

without first developing a transition plan. Id. at 914. In short,

the transition plan regulation imposes an obligation beyond the

statutory mandate and, therefore, is not privately enforceable.

Id.

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 We embrace this reasoning. We add, moreover, that it

also dooms the plaintiffs' attempt to enforce the self-evaluation

regulation through a private suit. Nothing in the text of Title II

requires public entities to conduct self-evaluations, let alone to

do so by the date prescribed in the regulation. Conducting a self-

evaluation may well facilitate compliance with the strictures of

Title II — but a municipality's failure to self-evaluate does not

in and of itself render municipal services, programs, or activities

inaccessible to disabled persons. Put another way, it is

altogether conceivable that a public entity may be in full

compliance with Title II without observing the commands of the

self-evaluation regulation. Given this state of affairs, we hold

that the self-evaluation regulation imposes a burden on public

entities not imposed by Title II itself and, therefore, is not

enforceable through the instrumentality of Title II's private right

of action.3

3
At the expense of carting coal to Newcastle, we add that the
regulations at issue here do not actually require the City to
undertake the measures sought by the plaintiffs. The complaint
prays for structural changes to existing facilities, including the
installation of curb cuts and the creation of accessible parking
spaces. But, the self-evaluation regulation requires public
entities to evaluate and modify only "services, policies, and
practices," not facilities, where needed to achieve Title II
compliance. 28 C.F.R. § 35.105(a). Similarly, the transition plan
regulation requires public entities to set schedules for
effectuating structural changes to existing facilities only where
structural changes to facilities will be undertaken to comply with
Title II. See id. § 35.150(d). This formulation begs the question
of whether the public entity has chosen structural changes to
existing facilities as a method for achieving Title II compliance.

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 In an effort to blunt the force of this reasoning, the

plaintiffs note that the Tenth Circuit has held that the self-

evaluation and transition plan regulations, along with several

other regulations promulgated under Title II, are enforceable

through a private suit. See Chaffin, 348 F.3d at 856-60. In our

view, the Chaffin court misconstrued Sandoval and, thus, the

decision is simply incorrect. Although the court appropriately

recognized that "regulations may not create a private cause of

action where no such right was intended by Congress in the statute

authorizing promulgation of such regulations," id. at 857, it

inexplicably disregarded Sandoval's corollary rule that regulations

which impose an obligation beyond the statutory mandate are not

enforceable through the statutory right of action, see id. at 857-

58. In light of this error, we elect to align ourselves with the

Sixth Circuit, see Ability Ctr., 385 F.3d at 913-15, and to reject

the position of the Tenth Circuit, see Chaffin, 348 F.3d at 856-60.

To recapitulate, the self-evaluation and transition plan

regulations impose obligations on public entities different than,

and beyond, those imposed by the ADA itself. Consequently, those

regulations may not be enforced through the instrumentality of the

private right of action available under Title II. On this basis —

and without reaching the causation issue that the district court

See id. § 35.150(a)(1), (b)(1).

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found dispositive — we uphold the entry of summary judgment for the

City on the plaintiffs' regulatory noncompliance claim.

C. The Barrier-Removal Claim.

The plaintiffs' fallback position is that even if they

have no private right of action to enforce the self-evaluation and

transition plan regulations, the district court nonetheless erred

in neglecting to address an alternate theory of liability: that the

City's failure to remove barriers to access at existing facilities

constitutes disability-based discrimination. This plaint cannot

withstand scrutiny.

We have held, with echolalic regularity, that theories

not squarely and timely raised in the trial court cannot be pursued

for the first time on appeal. See, e.g., Boston Beer Co. Ltd.

P'ship v. Slesar Bros. Brewing Co., 9 F.3d 175, 180 (1st Cir.

1993); United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992);

Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d

17, 21 (1st Cir. 1992); McCoy v. Mass. Inst. of Tech., 950 F.2d 13,

22 (1st Cir. 1991); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.

1987). This prophylactic rule requires litigants to spell out

their legal theories face-up and squarely in the trial court; if a

claim is "merely insinuated" rather than "actually articulated,"

that claim ordinarily is deemed unpreserved for purposes of

appellate review. McCoy, 950 F.2d at 22 (citation omitted).

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 So it is here. While the plaintiffs' complaint at one

point decried the condition of city streets and sidewalks, it

contained few facts — and even fewer allegations — that so much as

hinted at a barrier-removal claim. District judges are not

expected to be clairvoyants — and this was too inscrutable a

reference to state a barrier-removal claim.

Let us be perfectly clear. A pleading states a claim

upon which relief can be granted only when it contains "factual

allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal

theory." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997)

(quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.

1988)); see Educadores Puertorriqueños En Acción v. Hernández, 367

F.3d 61, 67-68 (1st Cir. 2004) (emphasizing that the notice

pleading requirements of Fed. R. Civ. P. 8(a)(2) incorporate this

principle). At a minimum, then, the plaintiffs were required to

plead (i) that Iverson (or some other member of AWS) is a qualified

individual with a disability; (ii) that such an individual was

either excluded from participation in or denied the benefit of some

public services, programs, or activities; and (iii) that such

exclusion, denial of benefits, or other discrimination was by

reason of the individual's disability. See Parker v. Universidad

de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000). The plaintiffs'

complaint offered no meaningful explanation as to how — if at all

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— the conditions of municipal streets and sidewalks deprived

Iverson (or anyone else) of access to any public service, program,

or activity. For that reason alone, the plaintiffs' barrier-

removal claim fails as a matter of pleading.

To cinch matters, the plaintiffs made no mention of a

barrier-removal claim in their opposition to the City's dispositive

motion. As we wrote in a comparable case, "[c]ourts are entitled

to expect represented parties to incorporate all relevant arguments

in the papers that directly address a pending motion." McCoy, 950

F.2d at 22 n.7. This branch of the raise-or-waive rule serves the

salutary purpose of preventing litigants from gaming the system by

seeding complaints with Delphic references in the hope of

facilitating an escape should the district court's ruling on their

advertised claims fail to suit. See id. at 22. Applying that

principle, we conclude that the plaintiffs' failure to mention —

let alone adequately to develop — the barrier-removal theory in

their opposition to the City's dispositive motion defeats their

belated attempt to advance the theory on appeal.4

4
Even if the plaintiffs had pleaded and preserved their
nascent barrier-removal claim (which they did not), that claim
would fail on appeal. The district court, at the plaintiffs'
urging, converted the motion to dismiss to a motion for summary
judgment. The two affidavits filed by the plaintiffs (which are
the only materials of evidentiary quality in the summary judgment
record) do not contain facts sufficient to make out a trialworthy
issue on the barrier-removal claim. See Parker, 225 F.3d at 5
(enumerating the elements of such a claim).

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 Of course, appellate courts retain a modicum of

discretion to relax the raise-or-waive rule in order to prevent

miscarriages of justice. See Slade, 980 F.2d at 31. But this

authority is to be used sparingly and only in exceptional cases —

cases in which "the previously omitted ground is 'so compelling as

virtually to insure appellant's success.'" Id. (quoting Hernandez-

Hernandez v. United States, 904 F.2d 758, 763 (1st Cir. 1990)).

The case at hand does not come close to satisfying this rigorous

criterion.

Neither the self-evaluation and transition plan

regulations nor Title II itself imposes a duty on a public entity

to make structural changes to existing facilities. This fact

largely explains the plaintiffs' inability to articulate how the

City's alleged failure to comply with the regulations caused the

injuries of which they complain; after all, the City, once it

conducts a self-evaluation — and it may already have done so, see

supra note 1 — may elect to achieve Title II compliance through

methods other than the modification of existing facilities. See 28

C.F.R. §§ 35.150(a)(1), (b)(1). Moreover, the plaintiffs have

pointed to nothing in the record to buttress their conclusory

contention that the City's ostensible failure to remove structural

barriers emanated from some disability-based animus. See Ability

Ctr., 385 F.3d at 910 ("[A] plaintiff can prevail under [Title II]

either by showing 'discrimination' or by showing 'denial of the

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benefits' of public services." (quoting Henrietta D. v. Bloomberg,

331 F.3d 261, 276 (2d Cir. 2003)); cf. Forestier Fradera v.

Municipality of Mayagüez, 440 F.3d 17, 22-23 (1st Cir. 2006)

(holding that a showing of delay in a municipality's accommodation

of a plaintiff's disability, without more, was insufficient to

establish the disability-based animus required for actionable

discrimination under Title II). In light of these considerations,

there is no reason here to deviate from the raise-or-waive rule.

D. The Motion for Reconsideration.

The plaintiffs' objection to the lower court's denial of

their motion for reconsideration need not detain us. As said, see

supra Part II(C), the plaintiffs failed properly to develop the

barrier-removal theory in either their complaint or their

opposition to the City's dispositive motion. It follows, a

fortiori, that there was no abuse of discretion in the district

court's refusal to address that theory on a motion for

reconsideration. See Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st

Cir. 1997) (explaining that Rule 59(e) "does not provide a vehicle

for a party to undo its own procedural failures [or] allow a party

[to] advance arguments that could and should have been presented to

the district court prior to judgment" (citation and quotation marks

omitted)); see also Tell v. Trs. of Darmouth Coll., 145 F.3d 417,

420 (1st Cir. 1998). The presentation of a previously unpled and

undeveloped argument in a motion for reconsideration neither cures

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the original omission nor preserves the argument as a matter of

right for appellate review. See Tell, 145 F.3d at 420.

In all events, the motion for reconsideration contained

scant elaboration of the barrier-removal theory and offered no

analysis of how the statute, regulations, or relevant case law

supported such a theory on the facts of this case. That, in

itself, was a fatal flaw.5 See United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990) (stating that "issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived").

III. CONCLUSION

We need go no further. The self-evaluation and

transition plan regulations impose obligations different than, and

beyond, those imposed by Title II of the ADA. Accordingly, they

are not enforceable through the instrumentality of the private

right of action available under that statute. That ends the

matter: as explicated above, the plaintiffs neither pleaded nor

preserved (and, thus, waived) their claim that the City's failure

to remove structural barriers at its existing facilities

constituted disability-based discrimination. For these reasons, we

affirm the judgment below.

Affirmed.

5
Since our decision, unlike that of the district court, does
not rest on a lack of causation, it is unnecessary for us to
address the other ground raised in the plaintiffs' motion for
reconsideration.

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