Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-2316.
Seitz, Mansmann and Greenberg, Circuit Judges.
This action involves the interpretation of federal regulations setting forth the extent of the obligation of recipients of federal funds for renovation of mass transit facilities to make those facilities accessible to handicapped persons. After careful review of the regulations and the cited authorities and in light of the interpretation of its regulations by the United States Department of Transportation ("the DOT") subsequent to the district court's decision, we hold that compliance by the City of Philadelphia and the Southeastern Pennsylvania Transportation Authority ("SEPTA") with the "special efforts" requirements of the DOT regulations as set forth in Section 27.77 of the former regulations, 49 C.F.R. 27.77 (1981), did not excuse compliance with the accessibility requirements of 49 C.F.R. 27.67(b) (1985) in connection with renovations to the Columbia Avenue subway station, which serves Temple University in Philadelphia.
Therefore, we will vacate the district court's order granting summary judgment for the defendants because the order was based solely upon the conclusion that the defendants had complied with the "special efforts" requirements as a matter of law. Furthermore, we will reverse the order denying partial summary judgment for the plaintiffs and remand for entry of an order granting partial summary judgment in favor of the plaintiffs as to the defendants' duty, in compliance with the regulations, to make the northeast entrance to the Columbia Avenue subway station's northbound terminal usable by persons in wheelchairs.
In 1979, the DOT enacted regulations entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefitting from Federal Financial Assistance."*fn1 49 C.F.R. Part 27 (1979). The 1979 regulations were promulgated to comply with U.S. Department of Health, Education and Welfare coordination guidelines, issued in 1978, implementing Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"). These HEW guidelines required that all recipients of federal funds integrate handicapped persons into the same programs available to others, rather than treat them as a separate group in "special" programs. See 45 C.F.R. § § 85.1-85.58 (1980). Subpart C of the 1979 DOT regulations, 49 C.F.R. Part 27 (1979), which dealt with the accessibility of facilities, stated that it:
does not necessarily require a recipient to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons.
However, Subpart C did require that:
Each facility or part of a facility which is altered by, on behalf of, or for use of a recipient . . . in a manner that affects or could affect the accessibility of the facility or part of the facility shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by handicapped persons.
Subparts D and E of these regulations imposed additional program-specific requirements regarding the accessibility of facilities and services. Subpart D contained program-specific requirements for airports, railroads and highways. Subpart E, which contained requirements pertaining to mass transportation, specifically required that stations within the rapid and commuter rail systems which served institutions of higher learning, such as the Columbia Avenue subway station,*fn2 "must be accessible to wheelchair users." 49 C.F.R. 27.87(a) (1979).
One month after the 1979 regulations were promulgated, suit was filed challenging the validity of Subpart E of these regulations. American Public Transit Association v. Goldschmidt, 485 F. Supp. 811 (D.D.C. 1980), rev'd, 211 U.S. App. D.C. 42, 655 F.2d 1272 (D.C. Cir. 1981) ("APTA"). The Court of Appeals for the D.C. Circuit, referring to the Supreme Court's decision in Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979), held that because Subpart E of the DOT's regulations could be read to require extensive modifications of existing systems and impose extremely heavy financial burdens on local transit authorities, the regulations exceeded the DOT's authority to enforce Section 504. APTA, 655 F.2d at 1280. The court remanded the case to the DOT to allow the DOT to ascertain whether Subpart E was also based on other enabling legislation. Id. at 1280.
In response to the court's remand the DOT published an interim rule in 1981 deleting Subpart E of 49 C.F.R. Part 27 and substituting a new section 27.77 in Subpart D. 46 Fed. Reg. 37488 (1981). This new section 27.77 did not impose any program-specific requirements regarding mass transportation facilities but was limited to mass transportation services. Id. at 37492. This section established a system whereby recipients of federal funds could engage in "special efforts" to satisfy their obligations for promoting transportation services to handicapped individuals.*fn3 Id. The only modification to Subpart C was to delete any reference to Subpart E. Id. at 37492.
From 1979 through 1986, officials from the City of Philadelphia and from SEPTA*fn4 planned and executed a $5.3 million renovation of the Columbia Avenue subway station. The Urban Mass Transportation Administration ("UMTA"), an agency of the DOT, provided $4.3 million in grants for the Columbia Avenue station renovation pursuant to Section 3 of the Urban Mass Transportation Act, 49 U.S.C. 1602. The proposal for the Columbia Avenue station renovation, which included the construction of an elevator shaft to service the northbound platform of the station, was submitted in 1978 and funding initially was approved in 1979.
In 1981, the City of Philadelphia requested UMTA's approval of the City's revised plan to delete the proposed elevator shaft at the Columbia Avenue subway station. Joseph Mayer, Director, Office of Engineering, UMTA, informed the City by letter of December 14, 1981 that:
Since it is this Administration's view that the method of compliance with Section 504 of the Rehabilitation Act of 1973 is a matter of local preference and since the City has filed its certification of compliance with the "Special Efforts" requirements published in the federal register on July 20, 1981, your decision to make this change can be made without UMTA's approval.
In effect, UMTA stated that it need not approve the proposal as long as the requirements for accessibility of services in Subpart D of Part 27 were satisfied, thereby also meeting the requirements of Subpart C of Part 27, 49 C.F.R. § 27.67 by making the facilities accessible as well. ...