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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