IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DEBORAH E. MILLER ) ) and ) ) SEAN OWENS ) ) Plaintiffs ) ) v. ) Civil Action No. 96-CV02833 ) (SS) (OTHER CIVIL ACTION) DISTRICT OF COLUMBIA ) ) and ) ) DISTRICT OF COLUMBIA ) METROPOLITAN POLICE DEPARTMENT ) ) Defendants ) ) UNITED STATES' REPLY TO DEFENDANTS' OPPOSITION TO THE UNITED STATES' MOTION TO INTERVENE BACKGROUND Plaintiffs filed suit against defendants, District of Columbia and District of Columbia Metropolitan Police Department, (collectively, the "District") on December 23, 1996. The complaint alleges claims of disability discrimination regarding the District's provision of 9-1-1 services to individuals with disabilities under title II of the Americans with Disabilities Act, 42 U.S.C.  12131-12134 ("ADA"), and section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.  794. In 1995, the United States, in response to a complaint, investigated the District's 9-1-1 system and found that the District's 9-1-1 system failed to provide direct, effective access for persons who use telecommunications devices for the 01-04599 deaf ("TDD's"). A formal letter of findings was not issued since the District indicated a willingness to resolve its noncompliance with the ADA on an informal basis. However, the steps that the District needed to take in order to comply with the ADA were embodied in the terms of a proposed settlement agreement the United States sent to the District in July 1995. In its December 1995, letter to Robert J. Mather of the Department of Justice, attached hereto as Exhibit A, Ronald B. Harris, Assistant General Counsel for the Metropolitan Police Department, stated that he saw "no need" to enter a formal agreement, and stated, You have advised us that you require a written agreement in order to facilitate the Justice Department's monitoring of the communications division provision of services to deaf persons. As we informed you earlier, we would be more than happy, upon request, to submit periodic updates on our continuing efforts to make telephone emergency services available equally to deaf persons. The District also advised the United States that all of the recommendations either had been implemented or would immediately be implemented. Having learned of the failures of the District's 9-1-1 system alleged in the instant case and other failures of the District's 9-1-1 system, the United States on numerous occasions during February and March 1997 attempted to contact Assistant Corporation Counsel Kenneth Vance to attempt to complete informal resolution of the District's noncompliance with the ADA. Neither Mr. Vance nor anyone else returned the United States' repeated telephone calls. On March 6, 1997, the United States sent a letter advising the District that it was not in compliance with - 2 - 01-04600 the ADA and attempting to complete informal resolution of this matter. See Exhibit B, attached hereto. Again, the United States received no response. On March 11, 1997, the United States again requested the District to engage in informal resolution of this matter. In its letter, the United States advised the District that it would be moving to intervene in this action. See Exhibit C, attached hereto. On March 13, 1997, the District contacted the United States to express interest in informal resolution of these matters only after learning that the United States intended to move to intervene in this action. In order to comply with the parties' proposed scheduling order in this case, the United States moved to intervene on March 13, 1997 -- prior to the March 15, 1997 deadline for adding other parties. The United States moved to intervene as a plaintiff, joining on the ADA claims, a statute which the Attorney General is authorized to enforce. 42 U.S.C.  12132, 12134. The United States decided to intervene in this action rather than filing a separate action to avoid needlessly duplicative litigation before the court. Plaintiffs support the United States' intervention while the District opposes it. - 3 - 01-04601 ARGUMENT I. The United States Satisfies Requirements for Permissive Intervention. Pursuant to Rule 24 (b)(2), a court has discretion to allow a party to intervene "[u]pon timely application . . . when an applicant's claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. P. 24 (b)(2). The court must consider "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id.; U.S. v. Microsoft Corp., 159 F.R.D. 318, 328 (D.D.C. 1995) (Sporkin, J.). A review of the United States' proposed complaint in intervention, attached to the United States' Motion to Intervene, shows that resolution of the United States' complaint and plaintiffs' claims will turn on common questions of law and fact. Plaintiffs allege that the District does not provide effective 9-1-1 services for persons who use TDD's; the United States' proposed complaint makes the same allegation. Further, the United States' motion to intervene is timely. The parties filed a joint report under Local Rule 206, as amended, at the February 25, 1997, status conference, in which the deadline for adding parties was set at March 15, 1997. The United States filed its motion to intervene on March 13, 1997, prior to that deadline. Further, the case is not far advanced, with discovery being in its early stages. On April 2, 1997, the District filed its initial disclosures, which were originally due - 4 - 01-04602 on February 15, 1997. No depositions have been taken. Thus, the United States' intervention would not cause any undue delay to the parties. II. The Justice Department Should Be Permitted to Intervene. The District contends that the motion to intervene should be denied because the Department of Justice failed to fulfill its regulatory duties to issue a letter of findings and to attempt a voluntary compliance agreement before filing a lawsuit. Defendants' Memorandum at 7-8. The ADA, however, does not require the Department to issue a letter of findings in this case. Rule 24 (b)(2) supports the United States' intervention in private suits already filed. Whenever "a party to an action relies for ground of claim or defense upon any statute . . . administered by a federal . . . agency . . .," that "officer or agency upon timely motion may be permitted to intervene in the action." Fed. R. Civ. P. 24 (b)(2). Congress specifically provided in Title VI of the Civil Rights Act of 1964, from which the ADA title II enforcement authority derives (see 42 U.S.C. S 12132), that "[n]othing in this Act shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General or of the United States . . . under existing - 5 - 01-04603 law to . . . intervene in any action or proceeding." 42 U.S.C.  2000h-3.1/ The general rule is that compliance with administrative requirements is not required if they would prove futile. McCarthy v. Madigan, 503 U.S. 140, 148 (1992); Clayton v. International Union, 451 U.S. 679, 693 (1981). The purpose of the administrative conciliation procedure pursuant to title II of the ADA is to resolve disputes short of litigation. 28 C.F.R. S 35.172; 56 Fed. Reg. 35, 714-15 (1991). However, where, as here, a public entity is simultaneously defending against the same claims brought by private plaintiffs, it is extremely unlikely that the conciliation process will resolve the matter with the United States. Moreover, the District has already received notice of the Department's claims in the complaint in 1995. Courts routinely allow federal agencies to intervene in private suits under an anti-discrimination statute. Johnson v. Nekoosa-Edwards Paper Co., 558 F. 2d 841, 847 (8th Cir.) cert. denied, 434 U.S. 920 (1977); Brennan v. McDonnell Douglas Corp., 519 F. 2d 718 (8th Cir. 1975) (intervention by EEOC in a private suit under the Age Discrimination Employment Act (ADEA)). See also, EEOC v. Wackenhut Corp., 939 F.2d 241, 244 (5th Cir. 1991) (intervention __________________________________ 1/ Legislative history of the Civil Rights Act of 1964 makes clear that Congress was aware of the general rule about intervention and imposed no additional duties in other provisions of the Act. See, Greenbaum, Government Participation in Private Litigation, 21 Ariz. St. L.J. 853, 926 & n. 285 (1989) (collecting legislative history). - 6 - 01-04604 by EEOC in private action under the ADEA); Glass v. IDS Fin. Servs. Inc., 778 F. Supp. 1029, 1048-50 (D. Minn. 1991) (denying defendants' motion to dismiss EEOC's complaint in intervention for failure to conciliate). Sobel v. Yeshiva University, 438 F. Supp. 625 (S.D.N.Y. 1977); Jones v. Holy Cross Hospital, 64 F.R.D. 586 (D. Md. 1974). The District offers no cases to support the proposition that the Department of Justice should be precluded from intervention because it did not issue a letter of findings. Defendants' Memorandum at 10. The District was afforded the opportunity to resolve these matters informally in 1995. Although it made commitments to bring its 9-1-1 system into compliance with the ADA, it has not done so. The District was given another opportunity to resolve these matters informally in March and April 1997. Thus, the District faces no prejudice whatsoever if the United States is permitted to intervene because the District is on notice of claims that the United States has tried to resolve before.2/ Furthermore, intervention by the United States in this lawsuit preserves judicial resources by litigating common factual issues in one case instead of two. __________________________________ 2/ The District argues that the United States' claims for injunctive relief are moot based on the allegation that the District has modified the 9-1-1 system to address the concerns expressed by the Department of Justice in 1995. The United States disagrees. Whether or not the District has complied with the ADA is an important factual issue to be determined by the Court. Conclusory statements in an affidavit are not proof that the District's 9-1-1 system complies with the law. - 7 - 01-04605 CONCLUSION For the reasons set forth above, and in the United States' Memorandum In Support of the United States' Motion to Intervene should be granted because intervention is timely and does not prejudice the interests of the District of Columbia. Respectfully Submitted, ISABELLE K. PINZLER Acting Assistant Attorney General Civil Rights Division (Handwritten) Robert Mather By:_______________________________ JOHN L. WODATCH [DC Bar No. 344523] RENEE WOHLENHAUS ROBERT J. MATHER [DC Bar No. 264598] JEANINE WORDEN [DC Bar No. 420177] Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D. C. 20035-6738 (202) 307-2236 (202) 307-6556 Dated: April 11, 1997 Washington, D.C. - 9 - 01-04606