UNITED STATES OF AMERICA v. METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY - OPINION & ORDER

III. DISCUSSION

The ADA “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities[.]” 42 U.S.C. § 12101(b)(1). It recognizes that “discrimination against individuals with disabilities persists in . . . transportation” through the “failure to make modifications to existing facilities[.]” 42 U.S.C. § 12101(a). Title II of the ADA, which governs public entities, therefore provides that “no qualified individual with a disability shall, by reason of such disability, . . . be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 12147 of Title II regulates the accessibility obligations of public entities making alterations to public transit facilities like subway stations. The densely worded section provides that when a public entity makes alterations to an existing public transportation facility that affect or could affect the “usability” of a station or a part thereof,

This provision is known as the “Accessible Alterations Rule.”

Section 12147 also provides that when a public entity makes alterations that “affect[] or could affect[] [the] usability of or access to an area” containing a “primary function,”

Thus, Section 12147 recognizes two categories of alterations that can trigger accessibility obligations: those that affect the usability of the station or part of the station, and those that affect the usability of a station area containing a primary function.

The Department of Transportation (“DOT”), and its subsidiary agency the FTA, are the federal agencies charged with implementing the transit-related provisions of Title II. See 42 U.S.C. § 12149. Part 49 C.F.R. § 37 contains the implementing regulations. Specifically, section 37.43 contains the implementing regulations of § 12147 of Title II. The two regulations at issue here mirror the distinction made in § 12147 between the two categories of alterations, those that affect “usability” and those that affect the usability of an area with a “primary function,” which in turn trigger differing obligations, as follows:

49 C.F.R. § 37.43 (emphasis added). If a public entity makes the type of alterations covered in (a)(1), it must make the altered portions accessible to and usable by disabled individuals “to the maximum extent feasible,” regardless of the cost. See Roberts v. Royal Atl. Corp., 542 F.3d 363, 371 (2d Cir. 2008) (stating that the phrase “the maximum extent feasible” requires that accessibility alterations be made regardless of cost). If it makes the type of alterations covered in (a)(2), it must ensure that “the path of travel” to the altered area is accessible to and usable by disabled individuals “to the maximum extent feasible . . . [p]rovided[] that alterations to the path of travel . . . are not required to be made readily accessible . . . if the cost and scope of doing so would be disproportionate.” 

By their language, § 37.43(a)(1) and (a)(2) are not mutually exclusive—an alteration can both “affect the usability of the facility” and “affect the usability of or access to an area of a facility containing a primary function.” See Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. Auth., 635 F.3d 87, 95 (3d Cir. 2011) (stating that (a)(2) covers “additional” changes); Department of Transportation, ADA Standards for Transportation Facilities at § 202.3 (2006) (characterizing (a)(2) obligation as “in addition” to general accessibility obligation)⁴; 28 C.F.R. Part 36, App’x C, Section 36.402 (stating, in the Title III context, that “[c]osts are to be considered only when an alteration to an area containing a primary function triggers an additional requirement to make the path of travel to the altered area accessible”). Defendants argue that § 37.43(a)(2) should apply instead of § 37.43(a)(1), but no law suggests that either one or the other provision must apply—if both provisions are triggered, both should apply.

The parties agree that the only issue to be determined by the Court on these cross-motions for summary judgment is whether the scope of work performed at Middletown Road Station triggers the obligations in § 37.43(a)(1) or (a)(2).⁵ If § 37.43(a)(1) applies, Defendants must make whatever renovations are required no matter the cost. If § 37.43(a)(2) applies instead, then Defendants only need to make the required renovations if doing so would not be disproportionately expensive.

Plaintiffs and the federal government argue that the scope of work performed at the Middletown Road Station triggered the obligations set forth in § 37.43(a)(1). Defendants argue that the scope of work performed triggered the obligations set forth in § 37.43(a)(2) and not (a)(1). The Court finds that § 37.43(a)(1) applies.⁶

Accessibility obligations under § 37.43(a)(1) are triggered “[w]hen a public entity alters an existing facility or a part of an existing facility used in providing designated public transportation services in a way that affects or could affect the usability of the facility or part of the facility.” The Court finds that Defendants’ renewal project, which involved the replacement of the stairways at the Middletown Road Station, clearly met this condition.

There is no dispute that Middletown Road Station is “an existing facility used in providing designated public transportation services.” So the sole question is whether Defendants “alter[ed]” the station “in a way that affects or could affect [its] usability” by, among other things, replacing the stairways. DOT regulations define an “alteration” as such:

49 C.F.R. § 37.3. Defendants entirely replaced the stairways at Middletown Road Station with new stairways as part of a major renewal project that also included replacement of walls, floors, railings, and platforms. This amounts to a “reconstruction” or “renovation” of the station, including the stairways, and thus an alteration. Indeed, Defendants do not dispute that their stairway replacement amounted to an “alteration,” referring to it as such multiple times in their briefing. See Doc. 100 at 14, 15.

Defendants’ replacement of the stairways also affected the usability of the facility. “Usability” is left undefined in §§ 37.43(a)(1) and (a)(2), but the Department of Justice, discussing the term in the context of Title III of the ADA, has stated that it should “be read broadly to include any change that affects the usability of the facility, not simply changes that relate directly to access by individuals with disabilities.” Final Rule, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, 35581 (July 26, 1991). Agreeing with the DOJ’s interpretation, the Second Circuit found replacements of kitchen floors and bathroom light fixtures to be “alterations” that changed the “usability” of condominium units under Title III provisions analogous to 42 U.S.C. § 12147. See Roberts, 542 F.3d at 369.7 Defendants’ replacement of the stairways at Middletown Road Station was clearly an alteration that affected the station’s usability under Roberts. The alteration thus triggered accessibility obligations under § 37.43(a)(1).

Defendants argue that § 37.43(a)(2), not (a)(1), applies to the alteration because the renovations were to areas of the station that contained a “primary function.” But (a)(1) and (a)(2) are not mutually exclusive. Under § 37.43(a)(2), accessibility obligations are triggered when “a public entity undertakes an alteration that affects or could affect the usability of or access to an area of a facility containing a primary function.” An alteration can both affect the usability of a facility, which triggers (a)(1), and affect the usability of or access to an area of a facility containing a primary function, which triggers (a)(2). In addition to replacing the stairways, Defendants made extensive alterations to the mezzanine and platform floors of the station. Since these floors are where tickets are bought and trains are boarded, they clearly contain primary functions. Therefore, the Court agrees with Defendants that § 37.43(a)(2) also arguably applies to the renovations made at Middletown Road Station. Plaintiffs do not dispute this, and the government recognizes that § 37.43(a)(2) applies to a less broad set of alterations that are "additional" to those triggered under (a)(1), see Doc. 106 at 10. But since Defendants moved this Court to hold that § 37.43(a)(1) specifically does not apply, their cross-motion for summary judgement is denied.