United States District Court, District of New Jersey
October 18, 2001
STEPHEN A. GREGORY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
ADMINISTRATIVE OFFICE OF THE COURTS OF THE STATE OF NEW JERSEY, DEFENDANT.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge
This case presents the Court with novel questions regarding what
remedies remain available to private disabled individuals to enforce the
provisions of Title II of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12132 ("ADA")*fn1, against state governmental agencies.
Plaintiff is a hearing-impaired man who seeks relief for what he alleges
is discriminatory treatment by the courts of the State of New Jersey.
Plaintiff's initial complaint has been buffeted by the Supreme Court's
evolving jurisprudence on the issue of when Congress may validly abrogate
the States' immunity from suit under the Eleventh Amendment. In its last
term, the Supreme Court decided Board of Trustees v. Garrett, 121 S.Ct.
955 (2001), the most recent in a long line of cases which have
substantially expanded the States' immunity from suit brought by
individuals. In Garrett, the Supreme Court found that Congress's
abrogation of the States' Eleventh Amendment*fn2 immunity from suit by
individuals for money damages under Title I of the ADA*fn3 was
unconstitutional. Anticipating that Garrett's holding would be extended
to Title II of the ADA, Plaintiff seeks to amend his Original Complaint
to plead his Title II claims under the doctrine of Ex parte Young,
209 U.S. 123 (1908), as well as to plead a separate cause of action under
Rehabilitation Act of 1973, 29 U.S.C. § 794(a)*fn4. The State of
New Jersey asks this Court not only to extend Garrett's reasoning to
Title II, but also to declare alternative causes of action, expressly
mentioned by the Court in Garrett, unavailable to disabled individuals
under Title II. For the reasons set forth below, I conclude that
Plaintiff may amend his complaint to pursue his claims under the doctrine
of Ex parte Young and Section 508 of the Rehabilitation Act, in
accordance with the Supreme Court's decision in Garrett.
I. PROCEDURAL BACKGROUND
Plaintiff, Stephen A. Gregory, filed his Original Complaint on April
16, 1999. The Complaint alleged that the Administrative Office of the
Courts of the State of New Jersey had violated Title II of the ADA by
failing to provide equal services to enable him and other
hearing-impaired individuals to record court proceedings. Gregory's
Original Complaint asked this Court to: (1) certify the case as a class
action; (2) enter an order "requiring defendants to make available to
Plaintiff and all deaf or hard of hearing persons who appear in court a
copy of the printed CART record at a cost equal to that charged to those
obtaining a copy of an audiotape or videotape of court proceedings"; (3)
award damages to Plaintiff and the Plaintiff class for expenses incurred
as a result of the alleged discrimination; and (4) award Plaintiff
reasonable attorneys' fees and other reasonable costs. See Orig. Compl.
On October 15, 1999, Defendant, the Administrative Office of the Courts
of the State of New Jersey, moved to dismiss, or in the alternative, for
summary judgment. Gregory filed a cross-motion for summary judgment. On
April 17, 2000, the Supreme Court granted certiorari in University of
Alabama Board of Trustees v. Garrett, 121 S.Ct. 955 (2001)*fn5, to
address the constitutionality of Congress's abrogation of the States'
Eleventh Amendment immunity from suit under both Titles I and II of the
On August 8, 2000, the United States Court of Appeals for the Third
Circuit filed its decision in Lavia v. Commonwealth of Pennsylvania,
224 F.3d 190 (3d Cir. 2000). In Lavia, the Third Circuit construed the
Supreme Court's decision in Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000), which had held that Congress had unconstitutionally abrogated the
States' Eleventh Amendment immunity from suit under the Age
Discrimination in Employment Act, to compel the conclusion that Congress
had similarly exceeded its power under section 5 of the Fourteenth
Amendment*fn6 in enacting Title I of the
ADA. The Court of Appeals
held, therefore, that the States were immune from suits by individuals
for money damages under Title I of the ADA.
On August 18, 2000, this Court issued an Order to Show Cause why this
case should not be dismissed in light of the Third Circuit's holding in
Lavia. This Court also certified the fact that the constitutionality of
the ADA had been drawn into question to the Attorney General of the
United States and extended to the United States Department of Justice the
opportunity to intervene, see August 18, 2000 Letter to The Honorable
Janet Reno, Attorney General of the United States, pursuant to Local
Civil Rule 24.1(a) and 28 U.S.C. § 2403(a)*fn7. In response to this
Court's certification, the Justice Department stated that it was
unnecessary for it to participate in this matter because the Supreme
Court's decision in Garrett would "control the disposition of this case
with regard to the question raised in the Court's letter," see September
4, 2000 Letter from M. Christine Fotopulos, Esq., Trial Attorney, to The
Honorable Stephen M. Orlofsky. On September 11, 2000, this Court
administratively terminated this case on the docket without prejudice,
pending the outcome of Garrett.
On February 21, 2001, the Supreme Court held in Garrett that Congress
had improperly abrogated the States' immunity from suit under the
Eleventh Amendment by individuals for money damages under Title I of the
ADA, but did not reach the identical issue under Title II of the ADA.
Indeed, the Supreme Court dismissed the grant of certiorari on the Title
II issue as improvidently granted. Garrett, 121 S.Ct. 955, 960 n. 1
On March 27, 2001, Gregory filed a motion to reopen this case and a
motion for leave to file a first amended complaint, pursuant to
Fed.R.Civ.P. 15(a), in order to conform his complaint to the Supreme
Court's holding in Garrett. Specifically, in his Amended Complaint,
Gregory seeks to: (1) name two New Jersey State Administrative Office
officials in their official capacities as Defendants; (2) withdraw his
request for damages; and (3) plead a cause of action under Section 504 of
the Rehabilitation Act of 1974. See Amended Compl. at ¶¶ 8, 9, 42.
In support of his Motion to Amend, Gregory points to footnote 9 in
Garrett which states that: "[Title I's] standards can be enforced by the
United States in actions for money damages, as well as by private
individuals in actions for injunctive relief under Ex parte Young."
The State of New Jersey argues that Gregory's Motion to Amend should be
denied because the proposed Amended Complaint is futile, that is, it
would not survive a Motion to Dismiss. The State further claims that the
action is barred by the Eleventh Amendment and that the doctrine
announced in Ex parte Young does not allow Mr. Gregory to plead claims
under Title II of the ADA or under the Rehabilitation Act of 1973.
II. FACTUAL BACKGROUND
Stephen Gregory has chronic hearing loss, and, although he retains some
residual hearing, he is considered "functionally deaf," see Compl. at
¶ 4, which places him within the ADA's definition of "disabled."
See 42 U.S.C. § 12102 (2).*fn8
Gregory's suit arises out of his appearances before the Superior Court
of New Jersey to resolve ongoing disputes involving the custody and
support of his three children. See Compl. at ¶¶ 11, 12. The general
practice of the Courts of the State of New Jersey is to audiotape or
videotape court proceedings, rather than employ a court reporter.
Litigants are given the opportunity to purchase a copy of the audio or
videotape for a ten dollar fee. Id. at ¶¶ 19, 20. Because of his
disability, Mr. Gregory requires "real-time" translations of court
proceedings, which are rendered by a court-provided system known as
"Computer Aided Realtime Translation" ("CART"). Id. at § 14. The
CART system works by having a court reporter "translate" spoken words
into written form; the words are then scrolled on a screen which can be
viewed by the hearing-impaired person. Id. at ¶ 17.
Gregory contends that because the CART system scrolls the spoken words
and because words are often improperly translated, it is "difficult for
the hard-of-hearing or deaf person to be sure that he or she has properly
taken in, or correctly responded to, everything that has been said and
processed." Id. at ¶ 17. As a result, Gregory has, on several
occasions, requested a written print-out of the CART record from the
Courts of the State of New Jersey, so that he might review the
proceedings afterward to determine the accuracy of his comprehension.
Id. at ¶ 18. Gregory has offered to pay the same ten dollar fee for
this CART print-out as hearing litigants pay for copies of the audio or
video tapes of standard court proceedings. Id. at ¶ 23.
The Administrative Office of the Courts of the State of New Jersey has
responded to Gregory's request by saying that a CART print-out could not
be purchased for ten dollars; rather, Gregory would have the choice of
purchasing an official transcript at a cost of $1.50 per page, or coming
to court to review the computer hard disk in person. Id. at ¶¶ 25,
26, 27. Because proceedings which employ a court reporter are not also
audio or video taped, it is impossible for Gregory to purchase an audio
or video tape in lieu of a CART print-out. Id. at ¶ 21.
Gregory contends that the Administrative Office's refusal to provide
him with a CART print-out for the same fee that is charged for the video
or audio tapes of court proceedings which are made available to hearing
litigants is a violation of Title II of the ADA. Regulations promulgated
under Title II prohibit public entities from "provid[ing] a qualified
individual with a disability with an aid, benefit or service that is not
as effective in affording
equal opportunity . . . to gain the same
benefit . . . as that provided to others." 28 C.F.R. § 35.130.
A. Motion to Reopen
Mr. Gregory has moved to reopen this case pursuant to this Court's
September 11, 2000 Order which administratively terminated this case
without prejudice. Defendant does not oppose Mr. Gregory's application
to reopen this case, see Def.'s April 4, 2001 Letter Br.; therefore, the
Court shall grant Plaintiff's Motion to Reopen without further
B. Motion for Leave to Amend Complaint
In accordance with footnote 9 of the Garrett decision*fn9
seeks to amend his complaint in the following ways: (1) to name as
Defendants the Administrative Director of the Courts for the State of New
Jersey and the Chief of Court Access Services for the Administrative
Office of the Courts for the State of New Jersey in their official
capacities; (2) to withdraw his request for money damages; and (3) to add
a claim under § 504 of the Rehabilitation Act.
The State of New Jersey argues that Gregory's Motion for leave to file
an amended complaint should be denied because it cannot withstand a
motion to dismiss because: (1) "it is illogical to permit a plaintiff to
do an end run around the Eleventh Amendment and pursue an otherwise
barred remedy against the state through an action against an individual
official of the state"; (2) Gregory cannot establish a prerequisite for
the application of the Ex parte Young doctrine, i.e., a present violation
of federal law; and (3) the claim under the Rehabilitation Act is, under
the reasoning in Garrett, prohibited by the Eleventh Amendment.
1. Legal Standard for Leave to File an Amended Complaint
Federal Rule of Civil Procedure 15(a) provides that a party may amend a
pleading by leave of court, and "leave shall be freely given when justice
so requires." Local Civil Rule 7.1(e)(2) further requires that a motion
seeking leave to amend a complaint contain a copy of the proposed amended
The decision to allow an amendment is within the discretion of the
District Court, but leave to amend should be "freely given" absent "any
apparent or declared reason — such as undue delay, bad faith, or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of
amendment . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment
is futile if it would not survive a motion to dismiss. See Smith v.
NCAA, 139 F.3d 180, 190 (3d Cir. 1998), rev'd on other grounds,
525 U.S. 459 (1999).
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure
12(b)(6), for "failure to state a claim under which relief can be
granted" is governed by the following legal standard: "In considering a
motion to dismiss under Rule 12(b)(6), the Court may dismiss a complaint
if it appears certain that the plaintiff cannot prove any set of facts in
support of its claims which would entitle it to relief." Mruz v.
Caring, Inc., 39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing
Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all
well-pled allegations are accepted as true and reasonable inferences are
drawn in the plaintiff's favor, the Court may dismiss a complaint where,
under any set of facts which could be shown to be consistent with a
complaint, the plaintiff is not entitled to relief." Id. (citing Gomez
v. Toledo, 446 U.S. 635, 636 (1980); Schrob v. Catterson, 948 F.2d 1402,
1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103
(3d Cir. 1990)); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Finally, "Rule 12(b)(6) authorizes a court to dismiss a claim on the
basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319,
326-27 (1989) (noting that this procedure "streamlines litigation by
dispensing with needless discovery and fact-finding").
In order to determine whether Mr. Gregory's motion to file an amended
complaint should be granted, it is first necessary to explore the holding
of Garrett and the contours of the Ex parte Young doctrine. Only then is
it possible to determine whether, under Garrett and Young, Mr. Gregory's
claim would be "futile" as the State of New Jersey asserts.
2. Board of Trustees v. Garrett
The issue before the Supreme Court in Garrett was whether state
employees may recover money damages by reason of the state's failure to
comply with the provisions of Title I of the ADA. The Court concluded
that such suits are barred by the Eleventh Amendment under the reasoning
of its recent cases addressing the issue, e.g., Kimel v. Florida Bd. of
Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act did not
validly abrogate states' Eleventh Amendment immunity from suit by private
individuals); Alden v. Maine, 527 U.S. 706 (1999) (Fair Labor Standards
Act); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense
Bd., 527 U.S. 666 (1999) (Patent and Plant Variety Protection Remedy
Clarification Act); City of Boerne v. Flores, 521 U.S. 507 (1997)
(Religious Freedom Restoration Act of 1993); Seminole Tribe of Fla. v.
Florida, 517 U.S. 44 (1996) (Indian Gaming Regulatory Act).
For a congressional abrogation of the States' Eleventh Amendment
immunity to be constitutional, two predicates must be met. First,
Congress must unequivocally intend to abrogate the immunity. Second,
Congress must act pursuant to a valid grant of constitutional authority.
See Garrett, 121 S.Ct. at 962 (quoting Kimel, 528 U.S. at 73). The first
requirement was not at issue in Garrett, because the ADA makes clear the
intent of Congress to abrogate the States' immunity from suit.
42 U.S.C. § 12202 (2000).
Because Congress may not base its abrogation of Eleventh Amendment
immunity on Article I, see id.; Kimel, 528 U.S. at 79; Seminole Tribe,
517 U.S. at 72-73, its authority must rest on the enforcement power of
section 5 of the Fourteenth Amendment.
Legislation enacted pursuant to
Section 5 must be congruent and proportional to the injury to be
prevented or remedied. To determine congruence and proportionality, a
Court must identify the constitutional right at issue, determine if
Congress identified a history and pattern of unconstitutional behavior in
violation of that right, and determine if the legislative requirements
are proportional to the constitutional injury identified. Garrett, 121
S.Ct. at 964-67.
In Garrett, the Supreme Court concluded that because the disabled are
not a suspect class, any constitutional harm to them is entitled to only
rational basis review. Id. at 963. It further found that, in enacting
Title I of the ADA, Congress had failed to show a pattern of irrational
state discrimination in employment against the disabled. Id. at 965.
Finally, the Court found that Title I's duty to accommodate the disabled
"far exceeds what is constitutionally required in that it makes unlawful
a range of alternative responses that would be reasonable but would fall
short of imposing an `undue burden' upon the employer." Id. at 967.
Thus, the Court concluded that Title I of the ADA was an unconstitutional
abrogation of the States' Eleventh Amendment immunity from suit by
private citizens for money damages. Id. at 967-68. The Court stressed in
footnote 9, however, that "Title I of the ADA still prescribes standards
applicable to the States. Those standards can be enforced by the United
States in actions for money damages, as well as by private individuals in
actions for injunctive relief under Ex parte Young." Id. at 968, n. 9.
3. The Ex parte Young Doctrine
Ex parte Young, 209 U.S. 123
(1908), held that the Eleventh Amendment
did not preclude suits against state officers, in their official
capacities, to enjoin violations of federal law, even when the remedy
will, in fact, enjoin the implementation of an official state policy.
The Court defended this "end run" around the Eleventh Amendment in the
The act to be enforced is alleged to be
unconstitutional, and if it be so, the use of the name
of the State to enforce an unconstitutional act to the
injury of complainants is a proceeding without the
authority of and one which does not affect the State
in its sovereign or governmental capacity. It is
simply an illegal act upon the part of a state
official in attempting to use the name of the State to
enforce a legislative enactment which is void because
unconstitutional. If the act which the state Attorney
General seeks to enforce be a violation of the Federal
Constitution, the officer in proceeding under such
enactment comes into conflict with the superior
authority of that Constitution, and he is in that case
stripped of his official or representative character
and is subjected in his person to the consequences of
his individual conduct. The State has no power to
impart to him any immunity from responsibility to the
supreme authority of the United States.
209 U.S. 123
The Supreme Court has extended this holding to violations of federal
statutes as well as of the United States Constitution. See Green v.
Mansour, 474 U.S. 64, 68 (1985). The Ex parte Young doctrine has been
called an "obvious fiction," see Idaho v. Coeur d'Alene Tribe, 117 S.Ct.
2028, 2034 (1997), because when a state officer is sued to enjoin the
enforcement of an official state policy, the real party in interest is
the state; thus, the end result is the same as if the state had
been sued directly, the Eleventh Amendment, notwithstanding. See Erwin
Chemerinsky, Federal Jurisdiction § 6.5 (3d ed. 1999). Despite this
fictive quality, the viability of employing the Ex parte Young doctrine
to provide relief against state violations of the Constitution and
federal laws, has been consistently upheld by the Supreme Court, see
e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, n. 10
(1989); Edelman v. Jordan, 415 U.S. 651 (1974); Home Telephone &
Telegraph v. Los Angeles, 227 U.S. 278 (1913); see also, Charles Alan
Wright, Arthur R. Miller & Edward Cooper, 13 Federal Practice and
Procedure § 3524, at 154 (1984) ("To be sure the doctrine of Ex parte
Young has a fictive quality to it; nonetheless, it serves as an effective
mechanism for providing relief against unconstitutional conduct by state
officers and for testing, in federal courts, the constitutionality of the
state statutes under which they act").
To plead a cause of action under Ex parte Young, a plaintiff must
establish a present violation of federal law. B.H. Papasan v. Allain,
478 U.S. 265, 278 (1986) (Ex parte Young applies to those cases in which
a violation of federal law is ongoing, not to those in which federal law
was violated in the past); Milliken v. Bradley, 433 U.S. 267, 289-90
(1977) (Ex parte Young applied to defendants perpetuating a system of de
jure segregation at the time the suit was filed). Furthermore, only
prospective injunctive relief is available under Ex parte Young. See
Quern v. Jordan, 440 U.S. 332, 337 (1979); Milliken v. Bradley, 433 U.S.
at 289; Edelman v. Jordan, 415 U.S. 651, 677 (1974).
4. Plaintiff's Motion to Name Two State Officials as
Defendants and Relinquish His Claim for Money Damages
In order to utilize the Ex parte Young doctrine, Mr. Gregory seeks to
amend his complaint to name as Defendants the Administrative Director of
the Courts for the State of New Jersey and the Chief of the Court Access
Services in their official capacities and to abandon his claim for
monetary damages. See Amended Compl. at ¶¶ 8, 9. The State of New
Jersey argues that this amendment will be futile because it is "it is
illogical to permit a plaintiff to do an end run around the Eleventh
Amendment and pursue an otherwise barred remedy against the state through
an action against an individual official of the state." The State's
contention directly contradicts footnote nine in Garrett, as well as the
purpose behind the Ex parte Young doctrine.
As noted above, in Garrett, the Supreme Court expressly stated that its
decision that Congress had unconstitutionally abrogated the States'
Eleventh Amendment immunity from suits by individuals for money damages
under Title I of the ADA,
[did] not mean that persons with disabilities have no
federal recourse against discrimination. Title I of
the ADA still prescribes standards applicable to the
States. Those standards can be enforced by the United
States in actions for money damages, as well as by
private individuals in actions for injunctive relief
under Ex parte Young.
Garrett, 121 S.Ct. at 968, n. 9.
The State of New Jersey argues that footnote 9 is inapplicable to Title
II of the ADA because Title II applies to public entities and because it
is "well established that individuals can not be liable for Title II
violations." For this proposition, the
State cites to Doe v. DYFS,
148 F. Supp.2d 462 (D.N.J. 2001), Moyer v. Conti, 2000 WL 1478791
(E.D.Pa. Oct. 10, 2000), this Court's opinion in Calloway v. Boro of
Glassboro Dept. of Police, 89 F. Supp. 543 (D.N.J. 2000), and the Seventh
Circuit's opinion in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000). The
State's argument is unavailing because Calloway and Doe do not stand for
the proposition that the State asserts. Moreover, Walker is not
controlling authority in this Circuit, and Moyer was decided before the
Supreme Court held that Ex parte Young was available to individuals suing
a State for violations of Title I.
In Calloway, the plaintiff had sued police officers in their individual
capacities for violations of Title II and the Rehabilitation Act. Thus,
while this Court held in Calloway that individuals may not be liable for
violations of Title II and the Rehabilitation Act, it did not hold that
individuals sued in their official capacities were likewise protected
from suit. In Doe, the Court denied Plaintiffs' motion to amend their
complaint to utilize the Ex parte Young doctrine because of their lack of
standing, see Doe, 148 F. Supp.2d at 478-79; the Court's discussion of
Plaintiffs' Title II cause of action in Doe does not discuss the
availability of the Ex parte Young doctrine, id. at 27-36. Finally,
while Walker did hold that "[a] suit resting on the Young approach is not
a suit against the public body and therefore cannot support relief," a
decision by the Seventh Circuit, while entitled to deference, is not
binding authority in this Court. Furthermore, Walker was decided before
the Supreme Court held in Garrett that Ex parte Young was available to
In Moyer, plaintiff who was a quadriplegic, filed suit against
Pennsylvania Senator Conti and the Pennsylvania State Senate under Title
II of the ADA for the lack of wheelchair accessible building entrances
and disability parking. Mr. Moyer later sought to amend his original
complaint in order to name the Chief Clerk of the Pennsylvania Senate in
his official capacity as a defendant and to relinquish his claim for
damages so as to utilize the Ex parte Young doctrine. The Honorable
Berle M. Schiller concluded that "[b]ecause, as discussed above, Title II
of the ADA is not enforceable against the state through the Senate, [the
state official] could not have violated any federal law if in fact he
failed to require ADA compliance." 2000 WL 1478791, at *7. Thus, the
Court granted Defendant's Motion for Summary Judgment.
It is important to note that Moyer was decided before the Supreme
Court's decision in Garrett expressly allowed suits by individuals under
Title I of the ADA to proceed under the Ex parte Young doctrine. It
appears to this Court that Judge Schiller's reasoning was predicated on
his conclusion that "the Supreme Court's reasoning in Kimel as well as
the Third Circuit's reasoning in Lavia applies equally to Title II of the
ADA and . . . that [therefore] Congress did not validly pierce the shield
of immunity provided to the States through the Eleventh Amendment."
Moyer, 2000 WL 1478791, at *6. Thus, because Judge Schiller concluded
that in enacting Title II of the ADA, Congress had unconstitutionally
abrogated the States' Eleventh Amendment immunity, there was no valid
federal statute for the state official to violate. As a result, it was
impossible to sue that official under the Ex parte Young doctrine.
However, Garrett expressly holds out the possibility of suing state
officials under Ex parte Young for violations of Title I, even though the
Court found that Congress's abrogation of the States' Eleventh Amendment
immunity in Title I was unconstitutional. It should
therefore, be equally possible to sue state officials under the Ex parte
Young doctrine for violations of Title II, even if the Court should
likewise find that Congress's abrogation of the States' immunity under
Title II is unconstitutional.
In addition, it is noteworthy that the Supreme Court did not address
Title II in Garrett, see 121 S.Ct. at 960, n. 1, nor is it a foregone
conclusion that Title II of the ADA will suffer the same fate as Title I
did in Garrett, see id. at 966, n. 7 (suggesting that the congressional
findings of historic discrimination by the State against the disabled in
the provision of public services and public accommodations, areas
addressed by Titles II and III are more compelling than those for
employment discrimination addressed by Title I).
In short, the case law demonstrates that the State of New Jersey is
mistaken in contending that Ex parte Young is unavailable to Gregory
because, in reality, he seeks to compel the State, not the individual
defendants, to comply with Title II. This argument fails to recognize
that this "way around the Eleventh Amendment"*fn10 is exactly what the
Ex parte Young doctrine allows.
The State's second argument is that Mr. Gregory cannot establish a
necessary predicate for the Ex parte Young doctrine, i.e., an ongoing
violation of federal law, because the State of New Jersey provides the
hearing disabled with CART translations. This contention has more merit,
but ultimately fails to persuade this Court that Mr. Gregory's Amended
Complaint would not withstand a motion to dismiss.
Title II provides that "no qualified individual with a disability
shall, on the basis of disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any public entity."
28 C.F.R. § 35.130(a). Public entities are prohibited from
"provid[ing] a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others,
28 C.F.R. § 35.130(b)(iii), or from "provid[ing] different or
separate aids, benefits, or services to individuals with
disabilities . . . than is provided to others unless such action is
necessary to provide qualified individuals with disabilities with aids,
benefits, or services that are as effective as those provided to
others," 28 C.F.R. § 35.130(b)(iv). Title II does
not require a public entity to provide "personal devices," such as
wheelchairs, hearing aids, or "readers for personal use or study" to
disabled individuals.28 C.F.R. § 35.135.
Regarding communication with the disabled, public entities are required
to "furnish appropriate auxiliary aids and services where necessary to
afford an individual with a disability an equal opportunity to
participate in, and enjoy the benefit of, a service, program, or activity
conducted by a public entity." 28 C.F.R. § 35.160(b)(1). Public
entities are to give "primary consideration" to the disabled individual's
requests in determining what auxiliary aid or service is necessary.
28 C.F.R. § 35.160(b)(2). This directive is included because of the
wide variety of disabilities and situations requiring auxiliary aids and
services for the disabled. App. A, 28 C.F.R. § 35.160 (explaining
that in some situations where the information being communicated is
complex or is exchanged for a lengthy period of
time, a qualified
interpreter rather than less complicated and expensive aids may be
These directives do not require the entity to "take any action that it
can demonstrate would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and administrative
burdens," but the entity has the burden of showing such fundamental
alteration or undue burden. 28 C.F.R. § 35.164.
This Court agrees with the Administrative Office of the Courts of the
State of New Jersey that in providing Mr. Gregory with CART
translations, it has provided him with an auxiliary aid as directed by
Title II, indeed, an aid which is specifically mentioned in the
regulations. See App. A to 28 C.F.R. § 35.160 ("For instance, some
courtrooms are now equipped for `computer-assisted transcripts,' which
allow virtually instantaneous transcripts of courtroom argument and
testimony to appear on displays"). However, Title II expressly states
that public entities should give deference to the disabled person's
choice of aid, and acknowledges that especially complex and lengthy
communications may require different, more involved and perhaps more
expensive accommodations. Therefore, I cannot conclude, when construing
the proposed amendment and all reasonable inferences in Mr. Gregory's
favor, that he can prove no set of facts which would entitle him to
relief. It is conceivable that a jury could conclude that the provision
of a CART system alone, rather than providing a written CART print-out,
in these circumstances, to Gregory, does not constitute a benefit that is
"as effective in affording equal opportunity to obtain the same result,
the gain the same benefit, or to reach the same level of achievement as
that provided to others."
Nor has the State demonstrated that there is no question of fact
concerning whether supplying a CART print-out to Mr. Gregory and other
hearing-impaired individuals would "fundamentally alter" the service
which Defendant provides or result in "undue financial or administrative
Accordingly, I conclude that Mr. Gregory's motion to amend his
complaint to include those elements necessary to proceed under the Ex
parte Young doctrine can withstand a motion to dismiss and, therefore, is
thus not "futile" under Fed.R.Civ.P. 15(a).
5. Plaintiff's Motion to Amend the Complaint to Include a
Claim Under the Rehabilitation Act
Mr. Gregory also seeks to amend his complaint to plead a cause of
action under § 504 the Rehabilitation Act of 1973, which provides:
No otherwise qualified individual with a disability in
the United States, as defined in section 702(20)[sic]
of this title, shall, solely by reason of her or his
disability, be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance. . . .
29 U.S.C. § 794(a).
To state a claim under § 504, a plaintiff must demonstrate that: (1)
he is a qualified individual with a disability; (2) he was denied the
benefits of a program or activity of a public entity which receives
federal funds; and (3) he was discriminated against based on his
disability. See id.; Calloway, 89 F. Supp.2d at 551. The Rehabilitation
Act is applicable to State governments. 29 U.S.C. § 794(b)(1)(A)(B).
The Rehabilitation Act was the predecessor to Title II of the Americans
with Disabilities Act, see Easley v. Snider, 36 F.3d 297, 301 (3d Cir.
1994), the statutory language of each and the regulations promulgated
under each are congruous, and the law developed under the Rehabilitation
Act is applicable to Title II of the Disability Act. Calloway, 89 F.
Supp.2d at 551; Easley, 36 F.3d at 300-05.
The State does not argue that Mr. Gregory failed to make out a prima
facie case of discrimination under the Rehabilitation Act. The State
argues instead that because the Rehabilitation Act is the precursor to
Title II of the ADA and imposes similar duties on public entities, its
abrogation of the States' Eleventh Amendment immunity from suit must be
unconstitutional under Garrett and Lavia*fn11
While suits by individuals against public entities for money damages
under the Rehabilitation Act may be precluded by Garrett, see Garcia,
2001 WL 1159970, at *10 (2d Cir.) I cannot agree that the language in
footnote 9 of Garrett that the Ex parte Young doctrine is available to
individuals to enforce the requirements of the ADA should not likewise be
applicable to § 504 of the Rehabilitation Act. Therefore, for the
reasons discussed in Part 4 above, I find that Mr. Gregory's Motion to
Amend his complaint to include a claim under the Rehabilitation Act of
1973 would survive a motion to dismiss, and therefore should be granted.
For the reasons set forth above, I shall grant Plaintiff's Motions to
Reopen this case and for Leave to Amend his Original Complaint. The
Court will enter an appropriate form of order.