*1
297
case, however,
transferring
in that
trict court and
controlling factors
entire case to
unique;
was
Michigan.
defendant
the Eastern District of
were somewhat
government, and the dis
the United States
authority
We have
to transfer
the case
provision
of a life insur
pute centered on
imposing
task on the district
government.
by the
In
policy
ance
issued
See,
Warner,
e.g.,
court.
Minnette v. Time
circumstances,
really only
was
venue
those
(2d
1023,
Cir.1993);
997 F.2d
1026-27
Cam
interest.
In Save Our Cumberland
academic
eron,
257;
Holt,
983 F.2d at
Cox Enters. v.
Clark,
Mountains,
Inc. v.
ing 346 U.S. 74 v. Illinois Cent. (1953), 83, plain L.Ed. 39 reversed a
S.Ct. improper judgment
tiff’s because venue though the case had been tried to a
even
jury.
Frankfurter characterized the
Justice
Tracy EASLEY, by
friend,
her next
“a horse soon curried” and
venue issue as
EASLEY;
H.,
Lucille
difficulty
having
Florence
apparently had no
Appellees,
340,
Gogo
In
Id. at
States
Gulf
Welfare; Kay Arnold,
ment of Public
Co.,
(5th
Casualty
Maryland
v.
Secretary
Deputy
Programs;
for Social
Cir.1978),
Appeals
the Court of
for the Fifth
Metropoli
Homemaker
Services
judgment on
Circuit held that a
the merits
Kay Arnold,
Area,
tan
Karen
Snider
would be reversed or vacated and the cases
Appellants.
if it
remanded for transfer or dismissal
im
appeal
determined on
that venue was
No. 94-1199.
proper in the district court. See also Bechtel
(9th
Bank,
Appeals,
Liberty Nat’l
Bank v. 372 U.S. 83 S.Ct. (1963) curiam). (per Sept. 9 L.Ed.2d Decided case, In we cannot overlook the fact Rehearing Petition for Oct. Sur se, proceeded pro nо that Martino counsel One, engaged represent Trans was default,
judgments were obtained defen- during hearing present
dants were not on
damages, and a review of the record reveals
that both Martino and Trans One have color- liability damages.
able defenses on persuade pro- us that
These circumstances
ceeding improper in an with the case forum substantially effect on de-
had a detrimental circumstances, con-
fendants. these we justice that the interest of will best be
clude judgment by vacating the of the dis-
served *2 Gen., Preate, Jr., Atty. D. J.
Ernest Susan Atty. Forney, Deputy (argued), Gen. Senior Mershimer, Deputy Atty. Kate L. Senior Gen., Knorr, III, Atty. Deputy Chief John G. Gen., Gen., PA, Atty. Harrisburg, Office of appellants. for Resnick, Shane, llene Robin Disabilities PA, Project, Philadelphia, Stephen Law F. PA, (argued), Philadelphia, appel- Gold lees. SCIRICA, LEWIS, and
Before: ROSENN, Judges. Circuit OPINION OF THE COURT ROSENN, Judge. Circuit appeal, involving important legal This questions, societal arises out of an attack оn Pennsylvania legality Attendant (Care Act), Act Care Services 62 P.S. seq. (Supp.1994). Pennsylvania enacted et legislation program designed in 1986 as a persons to enable to live and, in their homes rather than institutions possible, when to become active and useful society. members of (Easley) plaintiffs, Tracey Easley (Howard), rejected Florence Howard both as ineligible program, brought suit the United States District Court for the Pennsylvania, alleging Eastern District of Act the more the Care conflicts with recently Americans with Disabilities enacted (ADA Act), ly, Easley or Act of 1990 U.S.CA. is unable to care for herself and seq. (Supp.1994),1 § 12101 et because the cannot be lеft alone. capable is not requires selecting, Act that candidates for supervising, firing attendant, Care managing also be alert. Plaintiffs her legal own financial and af- *3 enjoin sought Pennsylvania of fairs. to State excluding program.
from them from the 1987, Easley in resided West Philadel- trial, Following a bench the district court phia, through and the use of surrogate, a in program developed concluded that the under mother, applied this case her for and re- enjoined the Care Act violated the ADA and ceived attendant care services from Re- excluding from and State Howard (RLI) Living Independently sources for from attendant care serviсes. The which was under contract with the PDPW. appeals. We reverse. Easley moved in 1991 to an area not serviced by by RLI but Homemaker Services Metro-
I. Area, politan (HSMA), Inc. which was also under contract with PDPW. Pennsylvania The Care Act authorized the (PDPW) Department of Public Welfare trial, At plaintiff the time of Howard was a provide eligible attendant care services to fifty-three year multiple old woman with scle- Assembly individuals. The General declared rosis and schizophrenia. undifferentiated purpose enacting that its law was Howard is immobile from the waist down mentally enable disabled but alert and, condition, due to her cannot live alone. ages eighteen adults between the of and fif- daughter Howard lived with her Sep- until ty-nine to live their own homes and com- tember Philadelphia but entered the Additionally, they munities. must: Nursing Home daughter when her could not experience physical impairment 1. a ex- obtain attendant care services for her. pected period to last a continuous of at expressed Howard has dissatisfaction with months; least 12 present her situation. She wants to leave capable selecting,- supervising 2. be of nursing community. home and live in the and, needed, attendant; firing if an this, To do she would need PDPW-funded capable managing 3. be their own fi- PDPW, however, attеndant care services. affairs; and, legal nancial and ineligible determined Howard under the Act mentally because she was not alert. Without physical impairment, 4. because of their using surrogate, incapable Howard is require complete assistance to selecting, supervising self-care, discharging an at- daily living, functions of and capable tendant and is managing not her mobility. legal own financial and affairs. § 62 P.S. 3053. Persons who are disabled but not alert are excluded Pennsylvania’s Program Attendant Care program. from the plaintiffs ineligible determined the to be they capable its services because were not Tracey Easlеy A. and Florence Howard. and, needed, hiring, supervising firing trial, Easley At twenty- capable the time of was a and because are not attendant year tragically by personally nine old woman controlling legal their and own catastrophic just car accident in alleged as she financial affairs. Both Snider, begin sophomore year was to Secretary her at Vassar defendant Karen PDPW, Arnold, College. Easley inju- Kay Dep- suffered closed head and defendant ry mobility uty Secretary which left her with minimal for PDPWs Office of Social (OSP), speech. apparently Programs can commu- She which administers the At- family by blinking eyes nicate with her her tendant Care violated the ADA using expressions. denying other facial Present- them attendant care services be- proceedings jurisdiction appeal 1. These assert claims under Title II has as the is from a final jurisdic- of the ADA. The district court exercised meaning § order within the of 28 U.S.C. pursuant tion to 28 U.S.C. court This model. Under the consumer “mentally alert.” Eas- combination they were cause advertises, interviews, challenge provision model the consumer ley Howard hires, participants to fires the attendant. The requires the consum- Act that Care agencies respective mentally alert. er submits invoices money so that the consumer is and receives Program. Attendant Care B. The responsible paying task of the care giver for or her services. Under the Assembly policies his stated the The General model, agency employs at- underlying Care Act part pertinent tendant, right retains but the consumer were as follows: reject an attendant the consumer availability of attendant increased 1. The pro- considers unsuitable. The consumer *4 will enable for adults care services developing plan in vides the service direction in own homes and to live their them responsibility supervising and retains the communities. in the com- the attendant the home. Under care Priority recipients attеndant 2. model, the consumer selects certain bination those under this Act shall be services performed to be and certain tasks tasks severely physically mentally but alert agency perform. The consumer has the will greatest risk of are in the disabled who delivery responsibility to choose the service setting. being in an institutional prefers. most PDPW de- model that he/she have the Recipients of attendant care 3. menu scribes combination model as “a about, decisions direct right to make selecting with the what tasks he or consumer their at- provision of and control agency will she will do and what tasks the includes services. This tendant carе do.” hiring, training, to is not limited but firing an at- paying and managing, II. tendant. §at
62 P.S.
targeting
must determine
of the
We
programmatic services to
care ser-
Act defines attendant
The Care
permissible
“[tjhose
alert individuals is
ancillary
and
services
vices as
basic
improperly
whether
excluded
the State
an individual to live
his home
which enable
receiving
institution,
Howard from
attendant
and
community, rather than
and
care
We make this determination
daily living,
services.
carry
self-
and
out functions
to
by examining
nature of the
the essential
§
mobility.” Id. at
3053. Basic
care and
program
discover whether
alert
to
mental
getting in
include assistance with
services
necessary
rеquirement
wheelchair,
eligibility
ness is a
bed,
or a car and
and out of
a
satisfy
Easley and
and whether
Howard can
bodily
with routine
also include assistance
requirement
this
with a reasonable modifica
activi-
as health
functions such
maintenance
tion,
by using
surrogate.
In review
here
ties,
hygiene, dressing,
bathing
personal
and
ing
appeal,
plenary
the court exercises
feeding.
ancil-
grooming, and
Id. Certain
applying
pre
legal
standard of review when
may
provided
include
lary
be
which
services
cepts
Midnight
undisputed
to
facts.
Ses
shopping,
such as
clean-
services
homemaker
sions,
Philadelphia,
v.
671
Ltd.
laundry, companion-type services
ing and
—
(3d Cir.1991),
denied,
U.S.-,
n. 1
cert.
transportation,
writing,
letter
read-
such as
(1992).
planning decisions. Act. The Care Id. pas agencies begin analysis our with We
The PDFW contracts with various Congress sage ADA. enacted the provide pursuant care attendant services against guidelines. ADA to eliminate discrimination Department Act and extending handicapped by requires agencies offer individuals Department that the principles required at in delivery: the con- non-discrimination three models service model, by the Re- model, stitutions federal funds and the sumеr Act, seq. obligations § tional per- 791 et other classes of 29 U.S.C.A. habilitation array of institu- sons with disabilities. to a much wider (Supp.1994), businesses, including pro- services tions (1993). A., App. I Pt 28 C.F.R. Ch. municipalities. by states vided The State asserts that in addition to the seq. § Title II of the ADA 12101 et U.S.C.A consistency regulations Care Act’s with the provides: ADA, implementing the the Care Act is con- subchap- Subject provisions regulations of this implementing sistent ter, disability Act, qualified § with a no individual Rehabilitation 29 U.S.C.A. by ex- regulations shall reason of such ADA’s forerunner. These state part: in or be denied cluded from services, programs,
the benefits nonhandicapped persons The exclusion of subjected public еntity, or be activities of a by from the benefits of a limited by any entity. to discrimination such Federal statute or executive order to hand- icapped persons spe- or the exclusion aof Id. at handicapped persons class cific from reading ADA and its State’s limited Federal statute or ex- *5 a supporting regulations is one which enables ecutive order to a different class handi- provide particular a class of disabled state to capped persons prohibited by not is this persons and services without with benefits part. obligating to extend the same services itself 84.4(c) (1993) added). (emphasis § 45 C.F.R. persons to other classes of with and benefits rejected posi- The district court the State’s regulations implementing disabilities. The accepted tion and the contentions of “qualified a the ADA define a individual with prerequisite and Howard that the of mental disability” as: just alertness the sort of discrimination who, disability An individual with a with or prevent that the ADA intended to and con- rules, modifications to without reasonable cluded that such a criterion contravenes the practices, ...
policies, or
meets
essen-
regulations implementing the Act. The court
eligibility requirements
receipt
tial
regulation
relied on an ADA
which states in
programs
or
of services
part:
relevant
publiс entity.
provided
or activities
a
public entity
impose
apply
A
shall not
or
eligibility criteria that screen out or tend
(1993).
regula-
§
35.104
Another
C.F.R.
disability
with a
to screen out an individual
implementing
specifically
tion
ADA
en-
any
or
class of individuals with a
authority
dorses a state’s
to offer benefits to
fully
enjoying any
equally
from
service
specific
persons
classes of
with disabilities:
activity,
program or
unless such criteria
Nothing
part prohibits
public
in this
necessary
provi-
can be shown to be
for
benefits, services,
entity
providing
from
or
service,
activity
program,
sion
disabilities,
advantages to individuals with
being offered.
particular
of individuals
or to
class
with
35.130(b)(8)
added).
(emphasis
§
28 C.F.R.
beyond
required by
disabilities
those
accept
The district court refused to
part.
program and,
characterization of the
State’s
35.130(c). Further,
preamble
§
Id. at
in its own examination of the essential nature
design
also authorizes a state to
programs
program,
the court determined that it
particular groups
of disabilities. The
necessary
is not
to be
alert to re-
preamble
part:
reads
ceive attendant care services. The court did
independence
not view consumer control
may provide
governments
and local
program,
as essential elements of the
benefits,
special
beyond
requirеd by
those
many opportunities
merely
rather
two of the
requirements
non-discrimination
of this
program provides.
part
that are
to individuals
limited
Community College v.
particular
of individu-
In
disabilities or a
class
Southeastern
Davis,
2361,
disabilities,
incurring
99 S.Ct.
als with
addi-
U.S.
(1979),
capped person
program’s
to receive the
es-
first
the Court
examined
L.Ed.2d 980
Further,
Act,
determining
predeces-
when
sential benefits.
the Rehabilitation
504 of
There,
allow the
an accommodation would
after a deaf woman whether
the ADA.
sor of
benefit, a court can-
federally-funded
applicant to receive the
into a
admission
was denied
rely solely
because
on the stated benefits
the Court was asked
nursing program,
may attempt to define the benefit
prohibited physical
programs
re-
§ 504
whether
decide
way
“effectively
otherwise
professional
in a
denies
quirements
in admission
handicapped
meaningful ac-
individuals the
An examination of the actual services of- goals blance to the State’s earlier to alleviate personal fered demonstrates that control is handicapped, the lot of another class of essential and that mental retarded, mentally disаbled and when it en- necessary requirement alertness for re- comprehensive acted the Mental Health and ceipt program’s essential rath- benefit Retardation Act in 50 P.S. 4102 et merely recipients. er than a service to benefit *7 seq. legislation This endeavored deinstitu- to contrary that The record indicates tionalize, possible, insofar as the State’s men- model, agency court’s characterization of the up tal health and retardation centers and set program relinquish per- beneficiaries do not possible County whenever Mental Health any sonal control in of the attendant care programs and Rеtardation Boards with at Howley, supervisor models. Paula Jean for county community the and levels. The Care Programs, PDPW Attendant Care testified by progressive program Act is another the personal at trial how the consumer retains improve many to lot lives of and pur- control under the. model. The physically by providing opportuni- disabled pose program has as its well-defined personal independence employ- ties for and goal provision greater personal of control ment. See Knutzen v. Eben Ezer Lutheran independence and for the disabled. Center, Housing 1353-54 programmatic goal, physi- To achieve the (10th Cir.1987) (Rehаbilitation Act in- was cally obviously cannot function inde- helping to tended serve as hand and pendently personal and exercise control of handicapped “as a ‘sword’ with which the their lives are not alert. every may carve a share from federal benefit Hence, joinder requirement of this can- program”). discrimination, rather, not be attributable to “necessary provision it is of the ... indepen- support Final for our view is an program activity being offered.” in program conducted dent evaluation argument by Easley 1986-by Company submitted 1985 and The Conservation by Organization Insti- adopted Howard and the district court and The Human Sciеnce tute, University, at the behest of mischaracterizes the Attendant Care Pro- Villanova demonstrates, gram. delivery report The State intended that the the PDPW. As the delivery. any The choice of legislation form of service Attendant Care Pennsylvania’s very different from a surro- programs service model is of similar a number followed making for the consumer. gate Associations of the decision by states. adopted other by surrogate is at (e.g., Allowing Cerebral a decision United handicapped persons objectives. Action, Pennsylvania Alli- complete odds with the Palsy, Disabled actively Physically Handicapped) ance of Acсordingly, that mental alertness we hold A begin attendant care. urged legislators to necessary to prerequisite is a Evaluation of the Penn- Report of an Final program. Although attendant care we Pro- Demonstration sylvania Attendant Care by appreciate the contentions report also observes gram, p. 5. Vol. Easley and Howard could derive the benefits that differs from the role of attendants unfortunately in- program, this from this or homemakers. Under traditional aides sought carry purposes out the sufficient by is directed the attendant by legislature. Again, accomplished performs handicapped individual policy the Carе Act’s declaration physically dis- range tasks for the wide explain Independent Report to PDPW physically dis- person. This enables abled the essential nature of the is to persons to abled independence through consumer con- foster maxi- their lives and reach better control who, physical trol for individuals their they are able to independence when mum disabilities, lives, manage could their own manage personal care and direct their own independence, perhaps achieve obtain home, business, and social lives. At- their such, employment. alertness of As mental Pennsylvania continues tendant Care in pаrticipants prerequisite. is a part independent the wider as be seen matter, however, This does not end the as goals fundamental living whose movement of surro- we must determine whether the use a) disabled to: to enable the are non-mentally gates as decision-makers for indepen- a less restrictive maintain and/or alert consumers is a reasonable modification b) living arrangement; maintain em- dent Act. under the Care e) remain in their homes. ployment; and/or incorpo- later at 4. These concerns were Id. B. Reasonable Modifications of the Care policy rated in the declaration Under the Care Act. Act, support of its cited the State provision The reasonable modification 3052(3), page 5 su- position. 62 P.S. see regulations implementing ADA pra. requires: part and Howard’s important An public entity A mod- shall make reasonable argument that mental alertness is not a nec- policies, practices, proce- ifications in essary prerequisite to attendant *8 dures when the are neces- modifications analogy on their be- care services is based sary to avoid discrimination on the basis of surrogates by the use of consumers tween disability, public entity can dem- unless the “agency” use the or “combi- and clients who making the onstrate that modifications by program. the nation” models offered fundamentally would alter the nature of comparison both overstates the control This services, program, activity. the or Easley over their own and Howard exercise 35.130(b)(7). Easley § and How- and understates the role of the clients 28 C.F.R. lives is an agency argue models of ser- ard that even mental alertness the and combination model, delivery. prerequisite the con- essential to attendant vice the services, satisfy prereq- they could supervise sumer must the attendant and the care They may reject by surrogates. the of claim plan service and the attendant at uisite use model, modi- any the that the failure to allow this reasonable time. In the combination regulations designate will fication violates the ADA and the consumer must tasks he/she State, agency. implementing All Act. The on the perform assign and tasks to the the least, hand, very position that the modi- require, that other takes the three models at requested by is unrea- the consumer a decision as to the best fication make sonable, regu- seeking if that ... required under the individual is services and is referring provider’s the ADA. outside of the implementing area of lations specialization, referring provider and if the reasonable test to determine the The would makе a similar referral for an indi- it alters the a modification is whether ness of vidual without a who seeks or program imposes nature of essential requires the same treatment or services. light hardship an undue burden Bd. Nassau program. overall School 36.302(b)(2). § 28 C.F.R. Arline, 17, 107 273, 287 n. County v. 480 U.S. plaintiffs acknowledge The that the State (1987); 1123, 1131 17, n. 94 L.Ed.2d S.Ct. may lawfully provide pro- an attendant care Choate, 287, 300, 105 Alexander v. 469 U.S. gram serving individuals with a certain hand- (1985); 712, 719-20, L.Ed.2d 661 S.Ct. icap, assert that the State discriminated College Pennsylva Nathanson v. Medical of (3d Cir.1991). against them because have an additional nia, 1384-86 handicap. opin- As discussed earlier in this proposed analysis An modification ion, the Carе Act does not discriminate Easley us to conclude that and How leads disabled; against mentally it focuses on a modification, suggested the use of sur ard’s handicapped. different class of The lan- would, least, very change rogates, at the Act, ADA, guage of the Rehabilitation program. focus fun entire focus of the The PDPW, Independent Report damentally provision from the would shift regulations implementing the acts con- objectives for attendant care and its societal template point specific classes of dis- physically personal care ser emphasizes power abled. The many vices to the thousands government design program partic- for a by spe served other disabled who are often illustration, handicapped. ular As an class cially designed programs. pro state Act, Randolph-Sheppard it cites the which posed program create a alteration would provides vending persons. licenses to blind it the State never envisioned when enacted 107(a) (1990). § There are U.S.C. other create the Care Act. modification would programs offered the Commonwealth of perhaps impossible burden on undue e.g., Pennsylvania, Comprehensive Men- State, jeopardizing possibly the whole tal Health and Retardation Act to which we by forcing provide it to attendant alluded, program have the deaf and care services to all disabled indi § hearing impaired, seq., 43 Pa.C.SA. 1463 et viduals, mentally whether or not alert. We program for the care and treatment of surrogates therefore hold that the use of persons suffering from chronic renal dis- would be an unreasonable modification of the eases, seq. § 35 Pa.C.S.A. 6201 et attendant care under the Act. reading Our of the Care Act is not incon The Care and the ADA. C. Act sistent the ADA and the Rehabilitation with agreed The district court regulations implementing these Act. The interpretation and Howard’s of 28 C.F.R. contemplate reaching groups of disabled acts 35.130(c) physically handicapped per obligations groups incurring to other ineligible cannot rendered sons interpreting handicapped. Cases the Re they also are afflicted with because Act have stated that their main habilitation disability that leaves them *9 a mental handicapped thrust is to assure individuals analysis support unalert. To its the district as the non-handi receive the same benefits Ti regulations implementing court cited Traynor capped. Supreme Court in v. The distinguish III the ADA between tle which 535, 548, 1372, Turnage, 108 S.Ct. U.S. offering persons to one class of services (1987), 1381-82, declared 99 L.Ed.2d barring person with the disabilities “[tjhere nothing in the Rehabilitation Act is individual anoth same needs because the has any to one requires benefit extended part: disability. regulation er states category handicapped persons also be ex categories handicapped provider may A an indi- tended to all other health care refer provider, persons.” to another vidual with rejected Easley Judge grant rehear- denied. Becker would has not
The State ing. because, mentally Howard from the
unalert, unworthy help; the State they are estab-
merely distinguishes program pro- Act from a
lished the Care non-mentally alert
viding assistance to This is not a case of physically disabled. Marilyn GOEPEL; Ronald against subgroup State discrimination Goepel, Appellants, are dis- group people who v. contrary, this a case wherе abled. On the degree of handicap, a severe an additional MAIL NATIONAL POSTAL HANDLERS disability, mental renders UNION, LIUNA, A OF DIVISION d/b/a program ineffectual. Mail Benefit Plan. Handlers
No. 93-5657. III. CONCLUSION Appeals, United States Court of Third Circuit. Pennsylvania therefore hold that We Aug. Argued 1994. requires Act which Attendant Care Services persons only physically not qualified Sept. Decided handicapped also alert does not Rehearing Sur Petition for Oct. non-discriminatory pur- ADA’s violate the poses. further hold that the use of sur- We
rogates by non-mentally alert modification of
disabled is a reasonable Pennsylvania Care Services Attendant
Act.
Accordingly, judgment of the district Each its
court will be reversed. side bear
own costs. SLOVITER, Judge,
Present: Chief
BECKER, STAPLETON, MANSMANN, SCIRICA, COWEN,
GREENBERG,
NYGAARD, ALITO, ROTH, LEWIS, *, Judges.
McKEE Circuit and ROSENN
SUR PETITION FOR REHEARING 18, 1994
Oct. petition rehearing by appel- filed having
lees in case been the above-entitled judges participated in
submitted to the who of this and to all the other decision Court judges regu- of the circuit in
available circuit service, judge
lar active and no who con- having
curred the decision asked for re-
hearing, majority judges and a of the circuit regular having
of the circuit in service not *10 rehearing, petition
voted for for rehear- banc,
ing panel and the Court in panel rehearing only.
*As to