*1 ineligible on Cardenas-Uriarte v. BIA that Estrada is for a waiver Estrada relies 1182(h). Cir.2000), INS, under 8 F.3d 1132 where possession that a conviction for we held DENIED. drug is an offense covered paraphernalia suggests the FFOA. Estrada applied case we the BIA’s test for eligibility forth in FFOA set Matter of (B.I.A.1995), 21 I. & N.
Manrique, Dec. inquiry proba- made no into the alien’s
tionary disagree. peti- conduct. We not violat-
tioner Cardenas-Uriarte had Dorothy MARTIN; Estate of probation, terms and conditions of ed the Martin, Plaintiff-Appellants, addressing pre- so we were not the issue by Estrada’s case. a person sented While v. possessing drug paraphernalia convicted of CALIFORNIA DEPARTMENT OF a qualifying have conviction under the AFFAIRS, a California VETERANS umbrella, FFOA as we held Cardenas- Corporation; Thiesen, Public Bruce Uriarte, still he must meet the other re- individually Secretary and as quirements for FFOA relief. These in- California of Veterans having probation clude no violations. Affairs; George Andries, Jr., H. indi vidually Deputy Secretary and as recently indicated as much in Homes; Marcella McCor Ramirez-Altamirano. There we ex mack, individually and as Administra plained probation the end of the “[a]t California, tor of Veterans Home of term, any if the defendant has not violated Yountville; Heltsly, individually John probation, of the conditions of the court and as Administrator of Veterans will proceedings discharge dismiss the California, Barstow; Home of entering the defendant without a judgment Arnold, individually Tom and as Ad of conviction.” 554 F.3d at To 791. ministrator of Veterans Home of Cali any remains, extent question we now make fornia, Vista, Defendants-Ap Chula explicit that FFOA relief is not available pellees. person whose conviction is ex
punged has violated a condition of proba No. 06-16850. Therefore, tion. Estrada is not relieved of United States Appeals, Court of immigration consequences of his 2001 Ninth Circuit. conviction. Argued and Submitted June 2008. Estrada also contends that the BIA Filed March should have remanded the IJ for a determination whether his 2001 conviction possession pipe/drug paraphernalia
under California Safety Health & Code
§ 11364 was a “relating violation of a law
to a controlled substance” under 8 U.S.C. 1182(a)(2)(A)(i)(II). It is. See Luur-Le INS, 915-16 Cir.
2000). Accordingly, agree with the *2 Ruocco,
John California Affairs, Sacramento, CA, for the defendants-appellees. *3 WALLACE,
Before: J. CLIFFORD PREGERSON,* HARRY P. SUSAN GRABER, Judges. Circuit GRABER; Opinion by Judge Partial and Partial by Judge Concurrence Dissent PREGERSON GRABER, Judge: Circuit Plaintiffs, Dorothy the Estate of Martin Martin, Dorothy’s daughter, claim that Defendants the California De- partment of (“Depart- Veterans Affairs ment”) and its officers and administrators illegally denied Martin admission to the Veterans’ Home of California (“Home”) disability, specifical- because of a ly, Alzheimer’s disease and Azheimer’s- related dementia. The district court granted judgment as a matter of law to claims, Defendants on some of Plaintiffs’ jury and a returned a verdict in favor of Defendants on the remainder. We hold rejection Dorothy ap- Martin’s plications did not Equal violate the Protec- Clause, or the Americans with Act and there- Disabilities fore affirm.1 FACTUAL AND PROCEDURAL HISTORY Carlock, Plaintiffs’ Dorothy’s Chad Law claims arise from Offices of Chad Car- lock, Davis, CA, applications for the unsuccessful to reside at the plaintiffs-appel- lants. provide Home.2 These facilities a “home * issues, Judge Pregerson replace Judge rulings. agree was drawn to On those with the briefs, Schiavelli. He has read the reviewed rulings. district court and affirm its record, recording and listened to the argument oral held on June Department operates 2. The the Home at three challenge 1. Plaintiffs also the district court’s Barstow, Vista, Campuses, one each in Chula jury evidentiary instructions certain of its (4) care; care; nursing skilled persons who aged and disabled ... hospital acute care.3 Id. 503. Residents Armed Forces of the United served America[,] discharged through according who were move the levels of care States duty under honor- to their medical needs. from active or released conditions,” are California and who able at trial The evidence showed Doro- Cal. application. at the time of residents Care,4 thy required Nursing Skilled Mil. & Vet.Code second-highest level of care available to depends on additional residents, Admission also applications. at the time of her direct regulations admission, factors. During period sought she *4 eligible applicants, Home to admit the applicant directly an could not be admitted can that care for their needs be “provided Nursing to Skilled unless the occu- Care the available resources of furnished within rate at that care level was pancy below subject 503(f). and to the addition, the Veterans Home § In at 75%. Id. admission is levels of care for which direct time, the Barstow and Chula Vista Cam- 12, tit. Regs. permitted.” Cal.Code puses provide Nursing did not Skilled 501(a). regulations provide § further applicants,5 to and the Yountville Care new “ability Home to Veterans admitting to the Campus was residents appropriately for provide adequately and domiciliary only. of care level and social needs applicant’s medical diagnosed with Alzheimer’s ability willingness applicant’s and the and Alzheimer’s-related dementia in 1998. Home environ- adapt to to the Veterans approximately period an 18-month Over determining factors.” Id. ment shall be 2000, early Dorothy applied beginning added). 501(d) The Home (emphasis § to, by, denied admission each and was applicants refuse admission to “shall Home. Campus requiring or disabilities medical conditions Mary cared her mother until Martin care, handling, or treatment specialized 2001. Dur- her mother died November ... not available at the or other resources time, Mary money used her own ing § (emphasis Home.” Id. 501.1 added). pay to for her mother’s care. also addition, provided is admission frustration, sleepless- “anxiety, come, suffered only on a “first first served basis.” ness, 502(a). despair.” § Id. death, Following Dorothy’s Plaintiffs by licensed the State of
The Home is action, that Defen- brought alleging Department of Health Services California (1) Dorothy admission illegally denied indepen- five of care: dants provide levels (2) disability and Home of her domiciliary; assisted liv- to the living dent or care; stating claims under numerous theories intermediate ing or residential daily help apply who with all activities of Applicants to each staff and Yountville. 503(f). Campus separately. § living. Id. highest hospital level of 3. Acute care is required Campus lacked the 5.The Barstow provides on care available and intensive care Nursing provide Care certification to Skilled 12, Regs. Cal.Code tit. a 24-hour basis. admitting prohibited from outside and was 503(g). § at Veterans cannot enter Home The Chula applicants at that level of care. care, to the this level of so it is not relevant Nursing Campus open a Skilled did not Vista appeal. issues on 2002, February Doro- facility after Care until Nursing provides residents 4. Skilled Care thy died. in-patient care licensed nurs- with 24-hour recovery. years, Id.; party’s Over the next three favor. Horphag, 337 those claims were winnowed down to F.3d at 1040. against claims under the “Judgment as a matter of proper law is 29 U.S.C. permits the evidence a reasonable the Americans with Disabilities Act jury Quik to reach one conclusion.” (“ADA”), 42 U.S.C. and claims silver, Inc. Kymsta Corp., against Department’s officers in their (9th Cir.2006) (internal quotation capacities
individual under 42 U.S.C. omitted). marks A renewed motion for 1983 for violations of Equal Protec- judgment Clause and California tort law. Plain- as a matter of law should be sought compensatory, spe- tiffs recover granted permits only the evidence one cial, punitive damages. conclusion and that contrary conclusion is jury’s verdict. Pavao v. Pagay, 307 jury
The case was tried to a
for week.
(9th Cir.2002).
verdict,
jury
Before the
returned its
parties
filed cross-motions for
as
alsoWe
review de novo the existence of
a matter of law under Federal Rule of
7-Eleven, Inc.,
standing. Doran v.
Civil Procedure
The district court
*5
(9th
1034, 1039
Cir.2008).
n. 3
granted Defendants’ motion in part, dis-
missing
equal protection
Plaintiffs’
and We review for abuse of discretion the
against
state law tort claims
Depart-
Pavao,
denial of a motion for a new trial.
officers, Mary
ment’s
Martin’s claims un- 307
may
F.3d at 918. “A trial court
grant
der
ADA
and the Rehabilitation Act
only
a new trial
if the
against
verdict is
against
Department,
and the Estate’s
weight
evidence,
clear
not
request for compensatory damages under
grant
it simply because the court would
the ADA and the Rehabilitation Act. The
have arrived at a different verdict.” Id.
jury
a
returned
verdict
in favor of the
We also review for abuse of discretion a
Department on
remaining
Plaintiffs’
evidentiary
district
rulings
court’s
and will
and Rehabilitation Act claims. Plaintiffs
prejudice.
reverse
the absence of
again
judgment
moved for
aas matter of
Josephs,
STANDARDS OF REVIEW (internal omitted). quotation marks We review de novo both the district Although the district court has “substan- entry judgment court’s as a matter of instructions,” tailoring jury tial latitude in law, Horphag Pellegrini Research Ltd. v. we review they the instructions de novo if (9th Cir.2003), 337 F.3d and its are challenged as a misstatement of law. denial of a renewed motion County, Modeler v. Multnomah 140 F.3d law, Bell, as a matter of Josephs v. Pac. (9th Cir.1998). But reversal is not Cir.2006). In instances, required probably “if the error was both more we view the evidence (internal light most favorable to the than not harmless.” Id. nonmoving par- quota- omitted). ty and all draw reasonable inferences tion marks qualified” for for abuse of discretion wise services whether also review We costs and will overturn the an award of she was denied those services because of “if it on an erroneous de award is based disability. her Lussier v. Dollar termination of law.” Stores, Inc., 1062, 1065
Tree
Plaintiffs contend that
.2008).
Cir
“qualified”
individual because she satis
statutory
DISCUSSION
fied the
requirements of Califor
Military
nia
& Veterans Code section
ADA and Rehabilitation
A. The Estate’s
agree. Dorothy
was an hon
Act Claims
orably discharged veteran and a California
argues
Depart-
first
that the
The Estate
resident, so she met
basic eligibility
those
the ADA and the Rehabilita-
ment violated
requirements.
Title II of
ADA and section
tion Act.
Act prohibit
504 of the Rehabilitation
dis-
reject
holding,
so
Defendants’ ar-
disability.6
To
crimination because of
gument
regulatory requirements
statute, the
establish a violation of either
appearing
Regula-
in California
Code
(1) Dorothy
Estate must show that:
Mar-
tions sections 501-503 are eligibility re-
meaning
tin was disabled within the
quirements.
regulations
Those
prescribe
(2)
statute;
qualified”
she was “otherwise
space and resources considerations that
i.e.,
for the Home’s
that she
services —
must be taken into account
deciding
eligibility require-
could meet the essential
eligible
whether an otherwise
applicant
services,
or without
ments of such
should be admitted to the Home. For ex-
accommodation;
she was
501(a)
ample, section
provides
denied the services because
her disabili-
*6
Home
eligible applicants,
“shall admit all
ty;
Department
and
received feder-
that
provided
care for their needs can be
(for
al financial assistance
the Rehabilita-
claim)
(for
furnished within the available resources of
public entity
tion Act
or was a
claim).7
subject
the Veterans Home and
to the
Regents
the ADA
Zukle v.
Cal.,
Univ.
levels of care for which direct
is
admission
Cir.1999).
permitted.”
Regs.
tit.
Cal.Code
501(a). By
§
that
requiring
the Home
parties agree
Dorothy
that
long
eligible applicants
admit all
as
as
meaning
“disabled” within the
of the ADA
available,
adequate resources are
the text
and the
Act and that
Rehabilitation
501(a)
eligibility
section
implies
public entity
is a
that receives
source,
criteria come from another
not
parties disagree,
federal assistance. The
501(a).
however,
on whether
was “other-
from section
in,
provides:
participation
be de-
6. Title II of the ADA
excluded from
of,
subjected
nied the benefits
or be
to dis-
Subject
provisions
subchapter,
of this
qualified
disability
any program
activity
individual
a
no
crimination under
or
shall, by
disability,
of such
receiving
reason
be ex-
Federal financial assistance....
participation
cluded from
in or be denied
§
services, programs,
the benefits of the
or
public entity,
subjected
activities of a
or be
significant
is no
difference
“[t]here
Because
by any
entity.
such
to discrimination
analysis
rights
obligations
in
creat-
§
42 U.S.C. 12132.
Act,”
ADA
ed
provides
pertinent
The Rehabilitation Act
in
analy-
consistently applied
we have
"the same
part:
statutes,”
brought
sis to claims
under both
qualified
No otherwise
individual with a
Zukle,
again
n.
do so
space Dorothy required help with at required. tion Act Claims daily living, which least five activities appeals Martin the district court’s only for Skilled qualified meant that she grant as a matter of law to available in Nursing Care. No beds were Department on ADA her and Rehabili- Nursing Campus the Yountville Skilled claims, allege tation Act which financial Dorothy facility applied, Care and emotional loss as a result of the De- Campus neither the Chula Vista nor partment’s alleged against discrimination had Campus Barstow licensed Skilled her mother. The district court held that Nursing facilities into which she Care Mary’s ADA and Rehabilitation Act claims could have been admitted. In other proeedurally were improper because the words, Dorothy was denied admission be- Department did inju- not cause her direct facilities had adequate cause none of the ry. prop- to care for her resources be able question We need not reach the whether erly, disability. of her The Mary can bring third-party claims under jury verdict form reflects that the unani- and the Rehabilitation Act be- Dorothy mously prove found that failed to premised cause her derivative claims are “that the defendant California entirely on the existence of discrimi- against illegal of Veterans Affairs discriminated against Dorothy. nation Martin reason her disabili- Because De- ” added), and the evidence at ty (emphasis partment against did not discriminate Dor- supports finding. trial othy, no derivative claim could succeed on merits, proeedurally even if it were The causal standard the Rehabilita- proper. Washington, See United States v. stricter, demanding tion Act is even (9th Cir.1992) (“We Dorothy show that she was denied services any supported by affirm on basis the rec- “solely by disability. of’ her reason rely ord even if the district court did not explained As we have (internal quotation on that basis.” marks above, Dorothy failed to show that she was omitted)). solely by denied admission reason of her disability. C. Estate’s 1983 Claim sum, record, we hold on this *8 42 brought In a claim under U.S.C. that
jury reasonably Depart- found 1983, alleges the Estate that the De against Dorothy ment did not discriminate Equal Pro partment’s officers violated disability. Martin on the of her The basis by treating Dorothy tection Clause attack, than policies that Plaintiffs rather similarly applicants situated discriminating disability, on the basis of —those are not Alzheimer’s-related dementia who simply reflect the unfortunate fact that a differently ap than other facility with limited resources cannot serve self-sufficient— that plicants. governmental policy “[A] every disabled individual who needs care. differently the disabled purposefully treats decide whom to ad- The must only ‘ra Here, from the non-disabled need be away. mit to turn it has and whom legislative tionally legitimate of related to permissible made decisions on the basis 1050 to Defendants as a mat- grant muster.” Lee of constitutional pass to
goals’
668,
F.3d
687 ter of law on this claim.
City
Angeles,
Los
250
v.
of
(9th Cir.2001) (quoting Does 1-5 v. Chan-
Mary
D.
Martin’s
1983 Claim
(9th
1150,
Cir.1996));
dler,
1155
88
Liv-
City Cleburne v. Cleburne
see also
§a
Mary Martin advances
1983
of
432, 442-43,
Ctr.,
473 U.S.
S.Ct.
ing
claim the violation of
Martin’s
for
3249,
(declining to
L.Ed.2d 313
rule,
rights.
general
As a
equal protection
scrutiny to a classifica-
apply heightened
having standing to
party
a third
does not
retardation). Apply-
mental
tion based on
of
bring
asserting
a claim
a violation
some
standard,
difficulty
we have no
ing that
Ohio,
rights.
v.
one else’s
See Powers
Department’s
that
admis-
concluding
1364,
400, 410, 111 S.Ct.
113 L.Ed.2d
U.S.
constitutional muster.
policies pass
sion
(1991) (“In
course,
ordinary
a liti
gant
legal
must assert his or her own
government
The
“must have sub
interests,
and cannot rest a
rights
latitude to establish classifications
stantial
legal rights
claim to relief on the
or inter
...
account for limitations on the
an
parties.”).
recognize
ests of third
ability
remedy every
...
to
ill.”
practical
if,
general
among
to
rule
exception
this
Doe,
202, 216, 102
Plyler v.
457 U.S.
S.Ct.
...
hin
things,
other
“there
some
exist[s]
(1982);
Lips
see also
1051 Dorothy the death of Mar- did not survive Defendants on the Estate’s state law tort agree. tin. We claims for emotional distress. law,
Under California F. Mary Martin’s State Law Tort proceeding by an action or a dece- [i]n Claims Emotional Distress for personal representative or dent’s succes- sor in interest on the decedent’s cause of Mary Martin alleges a claim of in action, damages recoverable are lim- tentional infliction of emotional distress damage ited to the or loss that the dece- under California Law and argues that the death, dent or incurred sustained before ADA, alleged violations of the Rehabilita including any penalties punitive or or Act, 1983 .support her claim exemplary damages that decedent would that Defendants’ conduct outrageous. have entitled to been recover had the In order to establish a claim of intentional lived, decedent and do not include dam- distress, infliction of emotional Mary must ages pain, suffering, disfigure- or prove, among things, other “extreme and ment. outrageous conduct the defendant with (emphasis Cal.Civ.Proc.Code 377.34 add- of causing, intention or reckless disre ed). Notwithstanding emphasized gard of probability of causing, emotion text, clearly precludes recovery which of al distress.” Superior Christensen v. damages, emotional distress the Estate Court, 868, 79, 54 Cal.3d 2 Cal.Rptr.2d 820 reasons that the tort claims survive be- (1991) (internal 181, P.2d 202 quotation Dorothy cause could have recovered puni- omitted). above, marks As discussed damages. tive Plaintiffs’ claims of discrimination under ADA, Appeal recently The California Court § 1983 fail. Consequently, this state law rejected precise argu-
considered claim fails as well. Dowds, Berkley ment. Cal.App.4th 152 518, 304, (2007). Cal.Rptr.3d Sec- Mary alleges “bystander” also permit recovery tion 377.34 does not negligent claim of infliction of emotional upon emotional distress the death of the distress under California law. In order to and, person allegedly harmed under long- claim, Mary prove, establish must authority, established California “an award among other things, pres that she “[wa]s compensatory damages in some amount injury ent at the scene of producing prerequisite punitive is a to a damage event at the time it occurred] [wa]s Berkley, Cal.Rptr.3d award.” at 316. causing injury then aware that it [wa]s disagree We see no reason to with the Chusa, Thing the victim.” v. La 48 Cal.3d analysis of the Appeal. California Court of Cal.Rptr. 771 P.2d 829- II, See Vestar Dev. LLC v. Dynamics Gen. (1989). Because we have held that (9th Cir.2001) Corp., 249 F.3d legally cognizable suffered no in (stating the state’s highest court jury, Mary bystander cannot recover on a has not decided the issue and “there is no theory. Accordingly, we affirm the dis convincing supreme evidence that the state court on Martin’s state tort law trict court differently, would decide a federal claims of emotional distress. obligated court is to follow the decisions of appellate the state’s intermediate courts” G. Costs to Defendants (internal omitted)). quotation marks Ac- cordingly, we affirm the district Finally, challenge court’s Plaintiffs grant as a matter of law district court’s award of costs to Defen-
1052
knowledge,
their
our
none of our sister circuits
by
persuaded
are not
dants. We
applied
Christiansburg
has
the
standard to
arguments.
Act,
costs under the Rehabilitation
and we
that Defendants
court ruled
The district
to do
here.
decline
so
ADA
to costs under the
not entitled
were
Brown,
we examined the text of the
appropriate only
are
such costs
unreasonable,
in
frivolous,
ruling
or ADA to determine whether our
claim is
the
Son, Inc., 127
Lucky
v. A. Teichert &
Summers
foundation. See Brown
without
Cir.1997),
in which we
Stores, Inc.,
1154
1190
Cir.
2001)
acknowledged
Christiansburg
that
the
the standard an
(holding
applies
request
attorney
to a
Christiansburg
Co. v.
standard
in
Garment
nounced
ADA,
to a
EEOC,
412, 421,
applied
54
under the
also
98 S.Ct.
434 U.S.
fees
Brown,
under the ADA.
request
the recov
for costs
(1978) permitting
L.Ed.2d
—
of
Moreover, the the text of Rehabilitation AFFIRMED. supports Act an inference that costs are to PREGERSON, Judge, Circuit ordinary in the be awarded course. Sec- concurring part in dissenting part: in 794a(b) Act pro- tion of the Rehabilitation that, any I proceeding part vides action or dissent in part “[i]n concur in in charge to enforce or a violation of opinion. [the the court’s I disagree with the Act], court, majority’s (1) in its discre- opinion on points: two tion, may prevailing party allow the ... a “an award of costs under the Rehabilita- attorney’s part fee as Act satisfy tion need not the Christians- attorney costs.” That text makes an burg fee test” and “that the district court discretionary; given, may award it be did not abuse its discretion awarding part made a of the costs. The text does costs to Defendants as the prevailing party suggest similarly that “the costs” are on the Rehabilitation Act Maj. Op. claim.” discretionary, they but rather that are a at In respects, all other I agree and given, to which fees attach. Accord- concur. ingly, wording supports of the statute In Christiansburg Garment Co. v. general provision an inference that the in EEOC, 412, 421, 434 U.S. 98 S.Ct. 54(d)(1) Rule of the Federal Rules of Civil (1978), L.Ed.2d 648 the Supreme Court
Procedure —that costs are allowed in the that, VII, held prevailing under Title ordinary prevailing party— course to the may only attorney’s defendant recover fees 54(d)(1) applies. presump- Rule “creates a “frivolous, plaintiffs when the claim un- is awarding prevail- favor of costs to a reasonable, or without foundation.” ing party.” Ass’n Mexican-Am. Edu- particular, Supreme Court’ noted that California, cators v. “assessing attorney’s against plaintiffs fees Cir.2000) (en banc). simply they finally prevail do not reasons,
For
these
we hold that an
substantially
would
add to the risks inher-
award of costs under the Rehabilitation
litigation
most
undercut
would
satisfy
Christiansburg
Congress
Act need not
to promote vigor-
efforts
test and that
provisions
the district court did not
ous enforcement of the
of Title
abuse its
in awarding
discretion
costs to
Id. at
VII.”
Defendants as the on the applied have the Christiansburg Rehabilitation Act claim. attorney’s standard to both fees and costs costs, respect With to the calculation of under the American with Disabilities Act (“ADA”). justified the district court its award v. A. Teichert & See Summers Son, Inc., explaining although Defendants could Cir. 1997) not recover costs on (applying Christiansburg Plaintiffs’ central stan remaining attorney’s claim—the claim—the dard to an award of fees under ADA); Stores, Inc., primary three claims accounted for Lucky about Brown v. *12 Cir.2001) the Rehabilitation Act and the (apply- Both 1182, 1190 246 F.3d purpose an Christiansburg specific standard to ADA were enacted for the ing the ADA). But here under the liv- protecting rights of costs of individuals award concludes that the majority’s opinion ing Compare with disabilities. U.S.C. apply does not Christiansburg standard 701(b)(2)(stating purpose that the of the defendant prevailing to a an award of costs ensure that the Rehabilitation Act is “to Maj. atOp. Act. the Rehabilitation under leadership plays a Federal Government 1051-53. employment of indi- promoting role in disabilities, individ- especially viduals with that “the majority’s opinion states
The disabilities”) significant with an infer- uals supports the statute wording of (stating purpose are allowed that the ence ... that costs party.” clear, ordinary prevailing strong, course to the con- provide ADA is “to plain I Maj. Op. at 1053. believe sistent, addressing enforceable standards provi- Act’s cost text of against individuals with dis- discrimination ambiguous. The Rehabilitation sion is that the Federal abilities” and “to ensure court, states that “the provision Act’s cost in enforc- plays Government central role discretion, may prevailing allow the in its chap- the standards established attorney’s ... a fee as party ter on behalf of individuals with disabili- 794a(b). the costs.” 29 U.S.C. part of ties”). here, Indeed, many as was the case Act, however, Rehabilitation does not present plaintiffs living with disabilities discretion- clearly state whether costs- are ADA and Rehabili- claims under both the the Rehabilita- ary presumed, or nor does bringing tation Act a federal action be tion Act state which standard should protect rights. Accordingly, their to an applied award of costs. awarding prevailing standard for costs to a ambiguous, “If the statute’s terms are defendant under the ADA and the Reha- construction, may legisla we use canons of bilitation Act should be consistent. history, pur tive and the statute’s overall Therefore, the better rule be to would pose Congress’s to illuminate intent.” Jo apply Christiansburg standard to an Carmona, R. v. 446 F.3d nah a prevailing award of costs to defendant (9th Cir.2006) Stephen Milne v. (citing Sle Act and the under both the Rehabilitation Inc., singer, 430 F.3d Cir. plaintiff pursues If a an unsuccessful ADA. 2005)). majority’s opinion pre While claim, Rehabilitation Act he should not be any ambiguity by analogiz fers to resolve forced to bear the costs associated with ing the text of the Rehabilitation Act to frivolous, litigation unless his claim was VII, the text of Title I believe that it is unreasonable, or without foundation. Sub- appropriate more that we look to the Re jecting plaintiff to an award of costs on purpose, habilitation Act’s overall and that reasonable Rehabilitation Act claims will provisions ensure that the cost likely deter individuals with disabilities Act ADA are inter and the bringing from thus limit effective suit and preted consistently they because deal with of the statute. enforcement subject: disability rights. the same See Nader, part I and concur Accordingly, States v. dissent United (9th Cir.2008) R., (quoting in part. Jonah 1007) (stating
at that “we consider dealing
related statutes ‘statutes subjects interpreted
with similar be should ”).
harmoniously’