*1 сlearly un- contends that “Caruso had the ability ‘play
fair both sides’ and devise a
plan penal- with the Fund that would both
ize Rubber Associates for what the Union
perceived bargaining as difficult
height of the recession and benefit financially,”
Fund in her roles as “chief
negotiator for the during Union collective
bargaining negotiations with Rubber Asso-
ciates Fund trustee at all times However, Reply
relevant.” Br. at 17.
there is no authority would forbid serving
Caruso from both the Union and
the Fund at the same time. These factual more,
allegations, without prove would
only that the Union and the Fund were
interrelated, any improper not that or ille-
gal collusion occurred.
IV. above,
For the reasons discussed we
affirm the district court’s dismissal of Rub-
ber equitable Associates’ counterclaim for
relief. BABCOCK, Plaintiff-Appellant,
Jill MICHIGAN; Michigan
State of
Strategic Fund, Defendants-
Appellees.
No. 14-1816.
United States Appeals, Court of
Sixth Circuit.
Argued: Oct. 2015.
Decided and Filed: Feb. *2 Charara, Ali The Sam W.
ARGUED: Firm, PLLC, Farmington Bernstein Law Hills, L. Appellant. Gary Michigan, for Grant, Attorney Michigan Office of General, Michigan, Appellees. for Lansing, Charara, BRIEF: Ali The Sam ON W. Firm, PLLC, Farmington Bernstein Law Hills, Gary L. Michigan, Appellant. for Grant, Grossi, M. Office of Christina General, Attorney Lansing, Michigan Michigan, Appellees. KEITH, ROGERS, and
Before: GRIFFIN, Judges. Circuit GRIFFIN, J., opinion delivered the KEITH, J., joined, the court which ROGERS, ROGERS, J., part. J. joined 541-44), opinion (pp. separate delivered concurring in the result.
OPINION GRIFFIN, Judge. Circuit (formerly Cadillac Place the General Building) complex Motors is an office Detroit home to state of- that is various fices, a court a res- Michigan appeals, taurant, store, gift and even a barber shop. The is owned defendant Fund, Michigan entity, Strategic Michigan. leased defendant State оf attorney Plaintiff Babcock is an who Jill Place. alleges worked in Cadillac She features of Place various Cadillac equal place denied her access to her employment in violation of Title II of the Americans with Act and Sec- Disabilities tion 504 of the Rehabilitation Act of 1973. We affirm the district court’s dismissal of plaintiffs claims because she has not iden- tified a program, or which entity from she was excluded or denied a benefit.
I. Eco Michigan Babcock worked Corporation’s nomic Development office due to Place. She is disabled the ADA. conclude that Cadillac We she has Ataxia, degenerative neuro Friedreich’s has identify because she failed to “ser- any ability disorder that her impairs muscular vices, programs, activities” of a public cоmplaint Her that she to walk. states entity from which she was excluded access to right exercise her “wishes Similarly, respect denied a benefit. *3 fear employment of without of place her Act, to the Rehabilitation we ask whether embarrassment, unnecessary injury, and Babcock has identified a ac- “program or design' She identifies several frustration.” tivity” from which she was excluded her alleges deny “equal she Again, denied a benefit. we conclude Place,” to the slope access Cadillac such as she has not. ramps at and the of entrances handrails at She seeks lack of entrances.1 A. declaratory
injunctive relief. Observing that Babcock had identi- Whether Eleventh Amendment fied a sovereign immunity in a given exists case from which she was excluded or denied of quеstion is a constitutional law that we benefit, the granted district court defen- Rising, review de novo. Ernst v. F.3d 427 motion to lack of sub- dants’ dismiss for (6th Cir.2005) (en 351, banc). 359 The jurisdiction to ject-matter and failure state provides Eleventh Amendment “[t]he First, it ADA a claim. held Babcock’s of power Judicial the United shall States by claim was barred Eleventh Amendment to any be construed extend to suit second, sovereign immunity, it ruled equity, law or commenced or prosecuted allege that Babcock had to a viola- failed against by one United States Citi the Rehabilitation The district tion of Act. State, by zens of another Citizens or denied oral court also as futile Babcock’s Subjects any Foreign of State.” U.S. complaint for leave to to motion amend her Const, XI. Although by amend. its terms acting individual defendants their add applies оnly the Amendment to suits capacities. appeals. official Babcock state, by against a state citizens of another II. Supreme Court has extended it to suits See, against by citizens their own states. First, we must Bab- determine whether Garrett, e.g., Bd. Univ. v. Ala. ADA claim by cock’s is barred Eleventh Trs. of 356, 363, 955, 531 121 148 U.S. S.Ct. sovereign immunity. part As Amendment (2001). guar analysis, L.Ed.2d 866 “The ultimate of this we Bab- consider whether cock has identified conduct that violates antee of Eleventh Amendment is alleges following provide adequate timing 1. Plaintiff violations: e. Failure to and an adequate plan floor in order to dis- provide adequate parking allow a. Failure to for. parking operated opportunity safely the disabled in abled individuals an areas to by controlled the defendants. and/or board elevators. protect prevent b. Failure to the obstruc- provide doorways f. to Failure interior parked, ramps by illegally of curb tion necessary opening hardware and force state-owned vehicles. to access disabled allow individuals. n g. require- comply c. Failure with ADAAG slope changes great- Failure of level ramps regarding slope posi- ments inch, one-quarter of en- er than at the at the tioned accessible entrances trances to restrooms. building. provide d. Failure to at accessible handrails entries. 534 violation); targeted to the
nonconsenting
proportional
States
not be sued
509, 533-34,
Lane,
Id2
private individuals
federal court.”
v.
Tennessee
(2004)
1978,
L.Ed.2d 820
124 S.Ct.
may abrogate the states’
Congress
(Title II
of “the fun-
alleging
claim
denial
immunity
sovereign
Amendment
Eleventh
right of
to the courts” not
dаmental
access
pursuant
provisions
enforcement
barred);
Georgia,
United States
Fourteenth Amendment when
5 of the
151, 159,
S.Ct.
L.Ed.2d
U.S.
“unequivocally intends
Congress both
(2006) (Title II
barred to
claim not
pursuant
grant
do
to a valid
*act[s]
so and
conduct
ADA-violating
that the
also
extent
(quoting
authority.’”
of constitutional
Amendment).
violates
the Fourteenth
Bd.
Regents,
Kimel v. Fla.
U.S.
has also
that an
Our court
clarified
(2000)).3
73, 120
(1984)). regulations We as See id. look to these "services.” the case. As ADA requires better view of the dissent local governments to ‘re- explained, barriers, move’ i.e. transportation so that disabled individuals will light regula- of the statute and have ac-
[i]n tions, therе is no mandate for accessibili- cess to services. This is the nonsensical facilities; hand, ty on the ...; there reading that follows we should strive express is the mandate of the statute absurdity.” Thus, avoid such Id. regulations accessibility to universal dissent concluded that although the ADA services, programs, and activities. “services,” not does define the ADA does differently, specifi- Stated facilities are indicate that “a service is not an inaccessi- cally excluded from the access demands sidewalk, ble which is instead treated as private of action provided cause facility that is a barrier to access of a Section 12132. public service.” 243-44. that, although Id. at 242. It elaborated The en banc dissent in Frame further explicitly Title II “does not define the term Congress observed that included “facili- ‘services,’ the sugges- statute makes a few accessibility ties” B II, Part Title interpretation tions to aid our of the term.” 12146, 12147, §§ but omitted it First, Id. at 243. Title II “quali- defines a A, from Part id. Specifically, it disability” fied individual with a a per- noted that the ADA explicitly requires cer- “who, son ... mth without the removal (and tain facilities to be accessible “in only ... transportation architectural bar- in) unique ‘designated context of riers ... eligibility meets the essential re- transportation services.’ Id. at 244 (citing quirements receipt for the services 12141(2)). 42 U.S.C. “Given that the stat- participation programs or activi- requires ute that facilities be accessible to 12131(2)). (quoting ties.” Id. 42 U.S.C. disabled only individuals in this limited Thus, explained, the dissent the statute context, it plain facilities are are-by defines what “services” reference to (in- merely a subset of services.” Id. they “Obviously,
what are not: the non- omitted). quotation ternal “Again, marks compliant alleged by sidewalks are’ primary implication of Sections 12146 plaintiffs to be barriers to transportation and 12147 only is that facilities need be for the Consequent- wheelchair disabled. equally made accessible in specific ly, plain it is that transportation barriers ‘designated public limited context of tran- are treated as barriers to accessing ser- Thus, sit services.’ because facilities are vice, and that sidewalks are not classified dissent, subject equal to the universal accessi- Second, as a service.” Id. ex- *7 bility requirement, they not ... enfold- are plained that it in reaching was “not alone ed with the term services.” (emphasis Id. the transportation conclusion that barriers original). strongly suggests This services,” distinguishable are from because Congress intentionally omitted the term the Supreme Court held that “ha[d] the “facilities” from enforcement 12131(2) private necessary implication of Section § circumstances, action under 12132. Id. “Congress that in some could govern- local easily expressed have prohibit ments must ‘remove its intent to architectural and oth- governments judicial denying er barriers to from disabled accessibility [the] [of local ” ‘facilities, (quoting equal services].’ Id. individuals access to all Tennessee v. Lane, 509, 531, services, programs, U.S. or activities.’ It did S.Ct. 1978 (2004)) (brackets Instead, original).' In required govern- not. it that local words, barriers, “if transportation i.e. facil- only ments make their facilities accessible ities, and services are ... transportation coextensive the in the context of services.” entity ADA, regulations, saying ‘a “Thus, without ex-
Id. at 245. the services, identi- the term Title II a plicitly defining by adopting comply with not: a things that a service is fies two measures, costly including variety of less facility. Ap- a and transportation barrier alternative, accessi- to relocating services here, ... non- those a plying distinctions persons ... to assist with disabili- ble sites transportation is a bar- compliant sidewalk Id. at 248. accessing services.’ ties general[ are—] rier and sidewalks inanimate, static, immobile infra- like other interpretation the dissent’s We find structure —facilities.” and it in ana compelling adopt of Title II on The en banc went to discuss dissent case, lyzing claims.5 In this Babcock’s ADA-promulgating the aforementioned ADA is that principal argument Babcock’s the distinction regulations, highlighting right has of action under private she a services, and they facilities draw between inaccessi Title II Cadillac Place is because See id. at 245-46 programs, activities. defects, design and that ble due to its 35.130, 35.149, 35.150, §§ (citing 28 C.F.R. properly allegation is “alone sufficient 35.151). ADA is “The clear mandate agree. II claim.” cannot plead Title We unequivocal right to access on defen Despite that she was notice of activities, re- Congress and and programs, has position, dants’ she identified clarify regulations that the that this quired activity of right action to demand access private entity in Place that she seeks Cadillac facilities, a does not extend to term only facilities-relat access.6 identifies She Id. at mentioned 12132.” 247-48. (“Facili issues. See ed 28 C.F.R. 35.104 Moreover, Suрreme placed “the Court has buildings, ty any portion all or means flexibility on the particular emphasis structures, sites, complexes, equipment governments to local under granted “provided majority opinion ordinarily to all Fifth rests on are not in common 5. The Circuit's First, citizens,” hard-pressed so we grounds. act of id. are two alternative “services,” they qualify like conclude that as building altering public sidewalks is a "ser- majority’s Fifth sidewalks under the Circuit advance vice.” Babcock does not such an approach. argument respect Place, we defects of Cadillac so need not accepting logic majority, Even ground majori- it. is the address The second facility of a like Cadillac features ty's encompasses conclusion that "services” distinguishable Place arе from sidewalks. plain under the sidewalks themselves might reasonably While fall a sidewalk more meaning Rely- Id. at 225-28. the statute. “facility” gray within the area between a ing Supreme use of on Court's the term “service,” the nature walls and floors definitions, dictionary “services” various quintessential examples of Cadillac Place are majority emphasized pub- the Frame that the facility, see "general transpor- lic has a demand” for "safe 35.104, service, program, opposed to a as tation,” added), (emphasis id. at 226-27 activity. by the For the reasons stated qualifies That so “sidewalk” "service.” above, we find the dis- dissent and outlined case, reasoning inapplicable here. this persuasive. interpretation more sent’s question we face the of whether de- certain sign examplе features in a argue employ- 6. Babcock does not that her —for *8 qualify handrails at as a "ser- Michigan Development ment at the Economic entrances — satisfy service, Those do not vice.” features Corporation program, activi- was a “general transportation” demand” for "safe ty entity purposes for of Title II. does; Moreover, way in the same that a sidewalk in- argu- her counsel conceded at oral stead, longer these features are intended for a subset ment that because Babcock no works MEDC, general population entering any argument respect for the Cadillac at the to employment is way, Put these access her moot. Place. another to roads, walks, parking court passageways, holding The district did not err in property, lots, personal or other real or that lacked standing Babcock that argue including building, prop the site where the she was denied access to the courts. located”). structure, or erty, equipment complaint, her Babcock only mentioned “2,000 that the fa simply she maintains that Place Because Cadillac was home to II, inaccessibility violates Title her cility’s employees, state of- officials’ government fices, fails.7 Compensation court, claim a Workers’ the Court of Michigan Appeals for District position In response to defendants’ I.” no There is mention of Babcock’s desire her Title II claim is that barred courts, to access the not even to observe Amendment, argues Eleventh Babcock public proceedings, nor does she as- nоw that she was denied access to courts sert way, such a desire. Put another Bab- Cadillac Place is home to state because alleged cock has not that she has been that The district court held Bab courts. thus, injured, standing she lacks standing lacked such claim cock raise raise this claim. sought she did not that she allege because court her em proceedings, to observe That Babcock has failed to con- identify courts, or. ployment required access to the duct that the ADA dispositive violates was a concrete that she otherwise denied her claim under the Eleventh Amendment proc in opportunity engage judicial immunity analysis set forth by the Su- dispute ess.8 Babcock does not she preme See Georgia, Court. U.S. to allege any such fact. failеd identifying 126 S.Ct. Without conduct, standing, ADA-violating To establish must Babcock we cannot hold (1) in requirements: “injury abrogated meet three that Congress the states’ sover- harm immunity by fact—a is both and eign concrete a valid its exercise of imminent, conjectural power actual under the Fourteenth (2) “fairly hypothetical,” pro- causation —a Amendment. And even if we were to alleged connection step traceable between ceed to the second analysis— injury fact and the conduct of alleged ADA-violating whether conduct vio- .the (3) defendant,” “redressability lates Fourteenth Amendment —Bab- —a requested argument substantial likelihood that cock’s sole is her access-to-the- remedy injury relief will alleged argument courts detailed above. Because Vermont Agency standing faсt.” Nat. Res. Babcock lacks to make such Stevens, 765, 771, rel. argument, U.S. ex has not al- she shown that the (inter (2000) leged 146 L.Ed.2d S.Ct. conduct violates the Fourteenth quotation nal marks and alterations omit Amendment. It is thus Elev- barred ted). sovereign enth immunity. Amendment phrase 7. Babcock asserts in her brief that denied access to a subjected by any be "or to discrimination (ADA) step under the first sov- of the entity” unambiguously such shows ereign immunity analysis process or a due public entity "is in violation of the ADA (Fourteenth Amendment) purposes claim by subjecting simply disabled individual step analysis. Regard- second explained discrimination.” But as we less, argument her does not overcome Elev- Johnson, 151 F.3d at "the discrimination sovereign immunity enth Amendment because referenced in the statute must relate to ser- support she she has not facts tо vices, programs, or activities....” was denied access to the courts under either argument step. 8. Babcock's access-to-the-courts interpreted arguing be could that she was *9 agree. applies The Act in this case should not be Rehabilitation Our decision activities],” and it de- “program[s] as our which viewed inconsistent with court’s ... a operations fines “all of the of phrase “ser- as interpretation broad vices, activities,” dis- department, agency, special purpose and to “encom- programs, trict, instrumentality or or other of a State virtually everything pass!] Johnson, government.” F.3d at of local 29 U.S.C. entity does.” 569. 794(b)(1)(A). § something regulations imple- The we encounter here is What “does,” Act, menting the Rehabilitation like Michigan the State of but fa- something regulations, in ADA differentiate between facility rather the which simple programs for and- or activities. See 34 is done. It would have been cilities 104.3(f),(k) (defining “facility” she C.F.R. Babcock have wanted structures, any portion buildings, number “all or of any pro- to access of roads, walks, lots, equipment, in or parking or administered Cad- grams, activities personal property Place. has not other real or or interest illac But because she done so, in appropriate. property” “[p]rogram dismissal such or activi-
ty” “operations” “department, as the b! district, agency, special purpose or instrumentality of or a local a State remaining claim is viola Babcock’s government” “entity or such State tion of 504 of the Rehabilitation Section government or local distribute such The district court Act dismissed 104.4(b)(5) assistance____”); claim the “material defect” in this because recipients (prohibiting of federal financial failing identify ADA claim of Babcock’s loca- selecting assistance from “site or service, program, or from which facility” tion that has “effect of or she was excluded denied benefits was from, excluding handicapped persons de- dispositive of her Act also Rehabilitation of, nying them benefits or otherwise claim, requires which the identification of a subjecting them to discrimination under activity.” “program pro Section any program activity”). regula- These qualified vides that otherwise individ “[n]o tions, regulations, strongly like the ADA shall, disability solely by ual with suggest dispositive distinction between disability, reason of her or his be excluded facility to a and access to programs access in, participation from the be denied the or activities. of, subjected benefits or be to discrimina program activity under any tion receiv reasoning en The banc dissent ing financial Federal assistance.... applies also Frame to Babcock’s Rehabili- 794(a). analysis Our Rehabili See, Frame, e.g., tation Act claim. Act “roughly parallels” tation claims ADA J., (Jolly, dissenting F.3d at 241 n. 5 claims contain similar because statutes (“A sidewalk, part concurring part) language “quite and are purpose similar inanimate, piece which is an static of con- scope.” High McPherson v. Mich. crete, ‘operation.’ does not constitute Ass’n, Inc., Sch. Athletic Thus, can safely we conclude that a side- (6th Cir.1997). 459-60 walk program is neither a nor an activi- argument ty.”). argument Babcock advances the same And Babcock’s for her claim: Rehabilitation Act that de- defects Cadillac Place are- “ser- nying equal facility to a vices” equiva- access is even more tenuous under Act, denying “program express- lent to access to a does Rehabilitation which claim, activity.” ly As with the ADA we dis- extend to See 29 U.S.C. “services.” *10 794(a). Ultimately, § for the same reason reason, tation Act claim for the same identify that Babcock has failed to ADA- district court did not err in denying the violating purposes conduct for of overcom- motion as futile. immu-
ing sovereign Eleventh Amendment
nity, Babcock has failed to state a Rehabil- IV.
itation Act claim. reasons, For these affirm judg- we ment of the district court.
III. Finally, we consider whether the district ROGERS, Judge, Circuit concurring. denying court erred in as futile Babcock’s Ordinarily, oral motion to amend. we re CONCURRENCE view a district court’s denial of a mоtion to I concur in the result and in much but discretion, amend for abuse of but we re majority’s not all of reasoning. view it de novo when the district court denies grounds amendment on the that the required by Affirmance is an examina- Inge amendment would be futile. v. Rock tion of language regulations two (6th 613, Corp., Fin. 281 F.3d Cir. implementing Title II of the ADA: 28 2002). 35.150, C.F.R. the regulation ap- plies facilities,” “existing and 28 C:F.R. oral
Babcock’s
motion to amend her
35.151,
the regulation
applies
complaint,
made
the alternative in re-
“new construction and
Al-
alterations.”
sponse
dismiss,
to defendants’ motion to
though
existing-facilities
regulation
sought to add
agents
“individual state
does
strongly,
regulations
so more
both
their
capacities”
satisfy
official
the Ex
suggest that —at least where a building or
doctrine,
Young
Parte
which forecloses
similar structure is invоlved—a service is
immunity
Eleventh Amendment
when an
something that is housed within the build-
brought against
action is
official
state
ing.
claim
Babcock’s
fails on the basis
only
and seeks
prospective injunctive re-
that Babcock
See,
has identified neither what
e.g.,
lief.
Seminole Tribe
Fla. v.
areas of Cadillac Place have been renovat-
Florida,
44, 73,
116 S.Ct.
ed nor what services
(1996).
she intends to access.
Court regulation аddressing square new facilities, change is for which structural *11 alterations, C.F.R. construction and 28 difficult, public entity more a likely to be regulation § that provides 35.151. That II a may comply adopting with Title “readily newly facilities must be ac- built measures, including variety costly of less and usable individuals with cessible to alternative, relocating services to accessi- disabilities,” altered facili- newly and to assigning per- and aides assist ble sites “to satisfy ties the same standard the must accessing ser- sons with disabilities maximum extent feasible.” Lane, Tennessee v. vices.” (b)(1). 35.151(a)(1), “readily § The acces- (2004) (emphasis add- S.Ct. 1978 a facil- requires sible and usable” standard ed) 35.150(b)(1)). (citing § The constructed, ity designed, to or altered “be reasoning on exist- was based the Court’s design stan- compliance in strict with a regulation, provides ing-facilitiеs which II Man- dard.” Title Technical Assistance public entity “[n]ecessarily is not Lane, 6.1000; ual see also 541 U.S. at II— existing to make each of its require[d] 35.151(c)). § (citing S.Ct. usable by facilities accessible to and indi- “readily The accessible and regulation’s disabilities,” long with as as the viduals addition, requirement, usable” extends able to the person disabled is still access the travel” areas. “path to altered service, program, activity. relevant 35.151(b)(4). § definition C.F.R. The 35.150(a)(1); § see C.F.R. also id. path many design includes of the of travel 35.150(b)(1). § This distinction between building, including in a “walks and features buildings and the the services house sidewalks, ramps curb and other interior by examples is further illustrated services pedestrian ramps; clear floor exterior the in the following such as Justice De- lobbies, corridors, rooms, paths through Manual, Technical partment’s Assistance areas; and improved parking other access implementation elaborates which on aisles; lifts[; and and] elevators rest- Title II: rooms, telephones, drinking and foun- 35.151(b)(4)(ii)(A)-(B). tains.” Id. The a city ILLUSTRATION 1: When holds regulation many of applies thus existing public meeting building, in an design features Babcock identifies. to, provide ready it must access and use appear This does regulation not allow of, meeting facilities individuals services, activities, programs, or relocating city is with disabilities. The re- not requiring compliance instead strict with to make in the quired building all areas building specifications public entity when a accessible, long as the meeting as room alters existing building or constructs a telephones is accessible. Accessible and new one. provided be bathrooms should also statutory The and regulatory scheme are
where these services available for can hardly be construed that services such meeting use of attendees. facilities, existing and are not mu- but Justice, Dep’t of The Americans with U.S. tually purposes regula- exclusive Act: II Disabilities Title Technical Assis- tion new addressing construction al- (1993), tance Manual II-5.1000 available terations. It follows that services sum, In http://www.ada.gov/taman2.html. mutually building’s design are ex- existing-facilities regulation indicates regard clusive to the new-con- even design existing features of an regulation, struction and that building a service. building qualify do features of are services. Nonetheless, public entity where a remod- than are the specific features of a building triggers building. The els the new-con- conclusion that sidewalks may qualify as a service requirements, appears supported by struction 35.151 court, 2004 decision from this prohibit entity reassigning from a Title II implementing regulation, and the programs, and Justice activities within Department’s amicus briefs in several side- part building to another walk judgment cases. Our today does not words, or to a different site. question. resolve the applies, where 35.151 list services a building necessarily within has not ex- First, the Frame dissent inbe some *12 panded, imposed but the duties on the tension with Ability Center. suggest We public entity have. ed not install curb cuts and ramps Ctr., those Ability sidewalks. 385 F.3d at complaint Babcock’s fails to state a claim 904. Although we did not hold that a parts because she has not what of sidewalk or curb cut is a service within the undergone Cadillac Place have renovatiоns meaning § of 42 U.S.C. we acknowl 35.151, § trigger that would and she has edged that public entities that case not identified the programs, or dispute not “d[id] the district court’s find activities that she intends to access. It is ing they § that 35.151”by failing [violated] Ability true that in Center Greater Tole- of to install throughout sidewalks city City Sandusky, do v. 385 F.3d 913 of that were accessible to the disabled. Abil (6th Cir.2004), § pro- we held that 35.151 Ctr., ity 385 F.3d at Nothing 904. in the private vides a right against of action de- opinion cast doubt on the fact city’s comply fendants who do not that reg- properly failure to construct sidewalks vio ulation’s requirements. Nothing this § lates 28 C.F.R. 35.151 and 42 U.S.C. analysis questions proposition. § 12132. Also supporting the view that a short, complaint Babcock’s does not identi- may qualify sidewalk as a service is a fy any service, program, 42 provision in existing-facilities regula § protect. Thus, U.S.C. 12132 aims to tion. provision That states public en requires even if 35.151 that certain de- “provid[e] tities should ramps curb or oth sign features of building here conform sloped er pedestrian areas where walks specific requirements, architectural curbs, cross giving priority walkways complaint Babcock’s does state a claim. Act, serving entities covered includ basis, On this majority opinion is cor- ing' government State and local offices and rect. facilities, transportation, places of While the majority substantially relies accommodation, and employers, followed reasoning dissent, on the of the Frame by walkways serving other areas.” majority in carefully ways *13 interpretation regula its own agency’s deference. is entitled substantial
tions Appeals, United States Court of Agric., 794 Woudenberg Dep’t v. U.S. Sixth Circuit. (6th Cir.2015). 595, 601 F.3d Argued: 2016. Jan. Department amicus briefs The Justice Decided and Feb. Filed: there are distinctions be- indicate sidewalks tween First, existing-facilities
features. 35.150(d)(2), con-
regulation, may require
templates sidewalks sloped areas even ramps
curb public do lead to a
if the sidewalks There is no building.
office or other provision
analogous regarding significant- in a More building.
ly, sidewalks as ser- characterizing
vices, Department the Justice has relied part aspects on several particular
sidewalks, including that “side- the fact purpose for the
walks have been used speech,” association and public stay “permit public ...
sidewalks traffic,”
clear of road and that sidewalks shops, busi-
permit to access
nesses, Brief transportation. Amicus Curiae
for the United States as Appellants’ Petition for Re-
Supporting Banc, Frame, En
hearing
(No. 08-10630), WL some consider-
*4. At
least
these
this case
notes
35.150(d)(2)
added).
C.F.R.
(emphasis
in which
may
the case of sidewalks
be
provision suggests
This
that a public entity
different
building designs
from the
before
duty
has a
ramps
install curb
in all
Ante,
us.
at 538 n.
today
5. Our decision
sidewalks,
if
even
the sidewalk does not
necessarily
thus does not
control a future
“gateway”
serve as a
govern
another
involving
case
sidewalks. There is some
service,-
mеntal
activity.
As
room
possibility
for the
sidewalks
it,
put
the Ninth Circuit has
“Section
qualify as
if
services even
fea-
requirement
ramps
35.150’s
of curb
in all
tures of a
A city’s
do not.
side- pedestrian walkways
general
reveals a
everyday
walks are more critical to the
concern
accessibility
for the
of
side
transportation
general public
Sacramento,
needs of the
City
walks.” Barden v.
Cir.2002)
(9th
do
(empha
arguably
apply
ations
added). Finally;
building.
address
in a
in two cases
sis
a sidewalk is
question
whether
ing
has sub
Department
the Justice
a sidewalk is
arguing
briefs
mitted
12132 and
under
service
Brief
See
Justice-Department
regulations.
as Amicus Curiae
for the United States
for Re
Appellants’ Petition
Supporting
Banc,
Arling
City
En
v.
hearing
Frame
America,
UNITED STATES of
(en banc)
(5th Cir.2010)
ton,
F.3d 215
Plaintiff-Appellee,
5306469;
(No. 08-10630),
Brief
2010 WL
as Amicus Curiae
for the United States
v.
City
Appellants,
Barden
Support
ALSANTE, Defendant-Appellant.
James
Cir.2002)
(9th
Sacramento,