IT IS HEREBY ORDERED THAT the Court’s Order (# 13) of November 12,1997 is AMENDED to read as follows:
Defendants have moved to dismiss this Americans With Disabilities Act (“ADA”) action for, in essence, failure to exhaust administrative remedies. Mot. (#8). Plаintiffs have opposed (# 11) and Defendants have replied (# 12). For the reasons outlined below, the motion to dismiss is DENIED and this action is STAYED pending Plaintiffs’ exhaustion of administrative remedies.'
BACKGROUND
Plaintiff Jack Mayеs is mobile only through use of a wheelchair. The individual Defendants own the Best Western Elko Inn Express, a motel in Elko, Nevada. In May 1997 Mr. Mayes allegedly discovered that Defendants had failed to make their property wheelchair accessible as required by the ADA Plaintiffs therefore sued Defendants in August 1997 under 42 U.S.C. § 12182(b)(2)(A)(iv), but without first seeking redress with the Nevada Equal Rights Commission (“NERC”).
Defendants argue that Plaintiffs should have nоtified NERC thirty days before suing, and that failure to so notify destroys our subject matter jurisdiction; Defendants have accordingly moved to dismiss. Mоt. (#8). Plaintiffs, apparently conceding that they did not notify NERC, argue that no such notification requirement exists. Opp’n at 3(# 11). Defendants’ mоtion to dismiss is now ripe.
DISCUSSION
The question presented is both narrow and straightforward: must a plaintiff seeking relief under 42 U.S.C. § 12182 provide thirty days’ notice to a state anti-discrimination agency before filing suit? Although the issue is hardly arcane, the answer is rather obscure.
I. Statutory Construction
“Canons of stаtutory construction dictate that if the language of a statute is clear, we look no further than that language in determining the stаtute’s meaning.”
United States v. Lewis,
The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discriminаtion on the basis of disability in violation of this subchapter____ Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this sub-chapter does not intеnd to comply with its provisions.
Section 2000a-3(a) (i.e., 42 U.S.C. § 2000a-3(a)) states in pertinent part that an aggrieved individual may sue for injunctive rеlief. In addition, 42 U.S.C. § 2000a-3(e) (not expressly adopted by the ADA) requires thirty days’ notice to state anti-discrimination authorities.
Becausе NERC is such an authority, Defendants argue that Plaintiffs should have notified NERC before suing. See Nev.Rev. Stat. § 651.110. Plaintiffs argue in opposition that bеcause the ADA did not expressly in
In our view, the plain language of the statute supports both sides’ interpretations, and the statute is therefore ambiguous. We arrivе at this conclusion primarily because the four courts to have addressed the issue are evenly split on its resolution. The District of New Hampshire and the District of Colorado view 42 U.S.C. § 12188(a)(1) as incorporating 42 U.S.C. § 2000a-3(c); indeed, the District of Colorado views аll of section 2000a-3 as being incorporated by. section 12188.
Daigle v. Friendly Ice Cream Corp.,
Secondarily, we note that the Department of Justiсe’s implementing regulation combines the two clearly applicable statutory sections, 42 U.S.C. §§ 12188(a) and 2000a-3(a), but leaves out the notification requirement of section 2000a-3(e), suggesting that the notification requirement is not valid. 28 C.F.R. § 36.501. On the other hand, the DOJ regulatiоn incorporates the attorney’s fees statutory section (42 U.S.C. § 2000a-3(b)), which is not expressly cited in the ADA, suggesting that other statutory sections (such as section 2000a-3(c)) might be valid notwithstanding the ADA’s failure to expressly incorporate them.
In short, neither the case lаw nor the implementing regulations provide unambiguous constructions of sections 12188(a)(1) and 2000a-3. Because there are two reasonable interpretations which yield opposite results in this case, we must scrutinize legislative history.
Lewis,
II. Legislative History
The legislative history is dispоsitive. We first note that the Senate floor debate, cited by both sides, is inconclusive. Senator Harldn indicated at one point during a colloquy with Senator Bumpers that exhaustion was required before filing suit, and then just moments later, in the same colloquy, stated that exhaustion was only required in employment discrimination cases. 135 Cong. Rec. § 10734-02, § 10759-10760 (daily ed. Sept. 7, 1989). Senator Bumpers’ attémpt to clаrify the issue was unsuccessful.
By contrast, the more important legislative history, that contained in the “Joint Explanatory Statement оf the Committee- of Conference,” demonstrates an intent to adopt the entirety of 42 U.S.C. § 2000a as the ADA’s enforcement meсhanism. H.R. Conf. Rep. No. 101-596, at 80 (1990), reprinted in 1990 U.S.C.C.AN. 565, 589. Specifically, the House amendment ultimately adopted by Congress “specifies that the remedies and procedures of Title II of the 1964 Civil Rights Act” shall be the remedies and procedures for enforcement of 42 U.S.C. § 12182. This implies that Congress intended for all of Title II of the 1964 Civil Rights Act (i.e., 42 U.S.C. § 2000a), and not just one subsection, to apply to such enforcement actions. Therе is nothing to the contrary in the rest of the legislative history.
III. Application
In keeping with legislative intent, we conclude that all of section 2000a-3 аpplies to actions brought to enforce 42 U.S.C. § 12182. Consequently, we hold that 42 U.S.C. § 2000a-3(c) applies in this case, and that Plaintiffs should havе notified NERC, and given it thirty days to respond, before filing the present action.
Plaintiffs’ omission does not mandate dismissal, though. This is because section 2000a-3(c) by its own terms permits a court to “stay proceedings ... pending the termination of State or local enfоrcement proceedings.” 42 U.S.C. § 2000a-3(c). We construe this clause to mean that a court may also stay proceedings рending initiation of state enforcement proceedings. This is the sensi
IT IS, THEREFORE, HEREBY ORDERED THAT Defendants’ motion to dismiss (# 3) is DENIED.
IT IS FURTHER ORDERED THAT Plaintiffs shall have 15 days to provide written notice of their allegations to the Nevada Equal Rights Commission by registered mail or in person, in accordance with 42 U.S.C § 2000a-3(e).
IT IS FURTHER ORDERED THAT this action is STAYED until 45 days after entry of this. Order.