IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-1964 ELEANOR OZGA, Plaintiff-Appellant v. CHARLES F. HERTZOG, D.M.D. and MODERN DENTAL CONCEPTS, INC., Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE STATEMENT OF JURISDICTION The district court had jurisdiction over this action pursuant to 42 U.S.C. 12188, 42 U.S.C. 2000a-3(a), and 42 U.S.C. 2000a-6(a). The district court entered a final judgment dismissing Ozga's complaint on October 13, 1995. The jurisdiction of this Court is based upon 28 U.S.C. 1291. STATEMENT OF THE ISSUE Whether the enforcement provisions of title III of the Americans With Disabilities Act (ADA), 42 U.S.C. 12188, which provide persons discriminated against because of disability with the remedies and procedures set forth in subsection 204(a) of Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(a), 01-07153 - 2 - also require potential ADA plaintiffs to invoke state administrative remedies prior to bringing a federal action. STANDARD OF REVIEW This Court exercises plenary review over a district court's dismissal of a complaint under Fed. R. Civ. P. 12(b)(6). Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). INTEREST OF THE UNITED STATES The United States has substantial responsibility for enforcement of Title III of the Americans with Disabilities Act, 42 U.S.C. 12181, et seq. (ADA). One of the express purposes of the ADA, 42 U.S.C. 12101(b)(3), is to "ensure that the Federal Government plays a central role in enforcing the standards established in [the Act] on behalf of individuals with disabilities." Pursuant to 42 U.S.C. 12186(b)(1) and 42 U.S.C. 12206(c)(3), the Department of Justice has issued regulations and a Technical Assistance Manual interpreting Title III. Neither the regulations nor the Technical Assistance Manual make any mention of the pre-suit state administrative notice requirement that the district court found applicable here. See 28 C.F.R. 36.501(a) (1993); Department of Justice, Title III of the Americans with Disabilities Technical Assistance Manual SS III- 8.1000, 8.2000. The absence of any mention of such a requirement in the contemporaneous administrative interpretation of the statute is cogent evidence of the Attorney General's belief that resort to such procedures was not intended by Congress. 01-07154 - 3 - Section 308(b) of Title III of the ADA provides authority for the Attorney General to enforce the nondiscrimination requirements only where there is a pattern or practice of discrimination or where discrimination raises an issue of general public importance. The private remedy found in section 308(a) is thus an important vehicle for individuals to correct particular instances of disability-based discrimination that do not rise to the level that would allow a suit by the Attorney General.1/ The limitation placed by the district court's decision in this case on the right of an individual to bring a suit in federal court is unwarranted by the plain language of section 308(b) of the ADA and may result in significantly delaying the vindication of federal rights. STATEMENT OF THE CASE A. Procedural History Eleanor Ozga brought suit on May 5, 1995, against Charles F. Hertzog, D.M.D., and Modern Dental Concepts, a professional corporation with which Dr. Hertzog practices, alleging that they discontinued necessary dental treatment because of her disability, in violation of 42 U.S.C. 12182(a). The district court, on October 13, 1995, granted the defendants' motion to ______________________ 1/ There is no federal administrative remedy under Title III of the ADA. Thus, the Attorney General has taken the position that "it is not necessary to file a complaint with the Department [of Justice] prior to exercising [a] private right of action." Department of Justice, Response to Inquiry, 4 Nat'l Disability L. Rep. P 360. 01-07155 - 4 - dismiss Ozga's ADA complaint, pursuant to Fed. R. Civ. P. 12(b)(6). The court held that it lacked jurisdiction over plaintiff's federal claim based upon her failure to allege that she had exhausted available state administrative remedies. B. Facts Appellant Eleanor Ozga has a psychiatric disorder that causes extreme anxiety, fear, and depression (Complaint  9).2/ In March 1994, Ozga sought dental treatment and prosthodontics from appellee Charles Hertzog, D.M.D., at the offices of Modern Dental Concepts, Inc., in King of Prussia, Pennsylvania, to correct some dental work that had previously been improperly performed by another dentist (id. at  11-12). Appellees agreed to provide the needed corrective dental services for a total of $5,280.00, which Ozga paid in June 1994 (id. at  14-15). At the time appellees entered into this agreement, they were aware that Ozga was "susceptible to anxiety and agitation concerning her dental condition," and that she had brought a lawsuit against the dentist who had previously performed the defective work on her teeth (id. at  16). Appellees performed portions of the agreed-upon dental work between April and December 1994 (id. at  17-18). In December 1994, however, when Hertzog produced the permanent crowns he proposed to use, Ozga was dissatisfied with their appearance and ____________________ 2/ On appeal from the dismissal of a complaint, this Court "accept[s] all factual allegations in the complaint as true and give[s] the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom." Kost v. Kozakiewicz, 1 F.3d at 183. 01-07156 - 5 - sought a written certification that the crowns met the specifications of her agreement with appellees (id. at  19-20). When appellees refused to provide such a certification, Ozga commenced a pro se lawsuit in state small claims court (id. at  21).3 The state court magistrate dismissed her complaint after Hertzog testified under oath that the crowns he had prepared were the ones for which Ozga had contracted and that he would complete the dental treatment for which she had contracted (id. at  22). Following the dismissal of the lawsuit, appellants refused to install the crowns or provide further dental services and demanded that Ozga sign a General Release discharging them from any liability to her (id. at  23 & Exhibit B). Ozga refused to sign such a release, retained counsel, and filed an appeal of the state court's dismissal of her complaint (id. at  24). After unsuccessful settlement discussions, appellants refused to complete Ozga's dental work on the grounds that she is "crazy," mentally unstable, and might cause "trouble" through litigation or otherwise (id. at  25-26). Ozga then dismissed her appeal of the state court action and brought this suit under the ADA (Complaint  30). C. The Decision Below The district court granted the defendants' motion to dismiss plaintiff's ADA complaint, pursuant to Fed. R. Civ. . 12(b)(6), ______________________ 3/ That suit was based upon appellants' "refusal to certify that the crowns they had prepared were conformed to their agreement with Mrs. Ozga" (Complaint  21). It did not include any claim of discrimination based upon her disability. 01-07157 - 6 - holding that it lacked jurisdiction over Ozga's federal claim because she failed to allege that she had exhausted available state administrative remedies. The court found that the ADA enforcement provision, 42 U.S.C. 12188, incorporates not only the remedies and procedures of subsection 204(a) of the Civil Rights Act of 1964 to which it specifically refers, but also subsection 204(c) of the 1964 Act, which the court found requires exhaustion of available state and local administrative remedies. Since state law authorizes the Pennsylvania Human Relations Commission to investigate and resolve allegations of discrimination on the basis of disability in places of public accommodation, 49 Pa. Cons. Stat.  955(i)(1), 956, 959, the court held that Ozga was required to exhaust that remedy before filing her federal suit. SUMMARY OF ARGUMENT The district court dismissed Ozga's complaint of disability- based refusal to provide dental services because she failed to allege that she had exhausted state administrative remedies. That decision is incorrect primarily because the plain language of the statute does not require it. In providing individuals who suffer discrimination based on disability by a place of public accommodation the remedies and procedures provided in subsection 204(a) of the Civil Rights Act of 1964, Congress did not intend to engraft upon Title III of the ADA other provisions of section 204 that have no applicability to the unique statutory scheme created by the ADA. The district court's task was to apply the 01-07158 - 7 - statute as written, not to rewrite it. Department of Defense v. FLRA, 114 S. Ct. 1006, 1014 (1994). The effect of the district court's erroneous decision is to introduce an unwarranted barrier to the prompt vindication of rights protected by the ADA. Because subsection 204(c) of the 1964 Act gives the district court in which an action is filed pursuant to 204(a) the authority to "stay proceedings in such civil action pending the termination of State or local enforcement proceedings," 42 U.S.C. 2000a-3(c), the district court's decision could cause a substantial delay. Where it is apparent from the plain language of the statute that Congress did not intend to impose such a delay, the district court had no authority to create one. ARGUMENT INDIVIDUALS ALLEGING DISCRIMINATION BASED UPON DISABILITY IN PLACES OF PUBLIC ACCOMMODATION NEED NOT INVOKE STATE ADMINISTRATIVE REMEDIES PRIOR TO BRINGING SUIT IN FEDERAL COURT UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT The Plain Language Of The Statute Does Not Require Invocation Of State Administrative Remedies Prior To Bringing Suit in Federal Court In any inquiry into the meaning of a statute, "[t]he language of the statute [is] the starting place." Staples v. United States, 114 S. Ct. 1793, 1797 (1994). The Supreme Court has instructed "time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992). 01-07159 - 8 - Title III of the Americans With Disabilities Act (ADA), 42 U.S.C. 12181, et seq., provides that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. 12182(a). Included within the definition of "public accommodation" is the "professional office of a health care provider." 42 U.S.C. 12181(7)(F). Congress intended the nondiscrimination provisions of Title III to be enforced both by persons who are themselves subjected to discrimination on the basis of disability, 42 U.S.C. 12188(a), and by the Attorney General, 42 U.S.C. 12188(b). Thus, section 308(a)(1), 42 U.S.C. 12188(a)(1), provides, in relevant part (emphasis added): The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. The "remedy" provided by section 204(a) of the 1964 Act, 42 U.S.C. 2000a-3(a), is a civil action for injunctive relief. The "procedures" it provides are intervention by the Attorney General in a case certified by the Attorney General to be of "general public importance," and, "upon application by the complainant and in such circumstances as the court may deem just," appointment of 01-07160 - 9 - an attorney for the complainant and the commencement of suit without the payment of fees, costs, or security.4/ As it often does in enacting a new statute, Congress selectively incorporated portions of existing statutes into the ADA. The ADA Title III enforcement provision under which Ozga brought suit makes reference only to subsection 204(a) of the 1964 Act. It does not refer to any of the other three subsections of section 204. The district court had no basis for ignoring the plain language of section 308 of the ADA and incorporating into it additional subsections of section 204 to which Congress did not refer. This Court faced an analogous situation in Sperling v. Hoffman-La Roche, Inc., 24 F.3d 463 (1994). There the issue was whether the filing of a representative complaint under the Age Discrimination in Employment Act, 29 U.S.C. 626(b), tolled the statute of limitations for unnamed employees to become members of _______________________ 4/ Section 204(a), 42 U.S.C. 2000a-3(a), states: Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventative relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs or security. 01-07161 - 10 - the opt-in class. At the time the action was filed, the ADEA expressly incorporated the statute of limitations contained in Section 6 of the Portal-to-Portal Act, 29 U.S.C. 255. 29 U.S.C. 626(e)(1). The employer argued that the tolling question should be governed by Section 7 of the Portal-to-Portal Act, which was not incorporated specifically into the ADEA. Section 7 would have required employees who wished to opt-in to do so within the Section 6 statute of limitations. This Court noted that "incorporation of selected provisions into section 7(b) of the ADEA indicates that Congress deliberately left out those provisions not incorporated." 24 F.3d at 470. The Court stated that its decision was "a fairly routine application of the traditional rule of statutory construction pithily captured in the Latin maxim expressio unius est exclusio alterius." Ibid. That principle applies equally here. Title III of the ADA is not simply a carbon-copy of Title II of the 1964 Act, although both prohibit discrimination in places of public accommodation. Congress recognized that discrimination based upon disability is manifested in ways that are distinct from discrimination on the basis of race, color, religion or national origin, and must be addressed in a different way. Thus, rather than simply amending Title II of the 1964 Act to add disability as a prohibited basis for discrimination, Congress enacted a comprehensive statute addressing issues such as architectural and communication barriers, 42 U.S.C. 01-07162 - 11 - 12182(b)(2)(iv), and provision of auxiliary aids and services, 42 U.S.C. 12182(b)(2)(iii), that were not relevant to the kinds of discrimination prohibited by the 1964 Act. The ADA concept of public accommodations is also much broader than that of Title II of the 1964 Act. Compare 42 U.S.C. 2000a(b) with 42 U.S.C. 12181(7), 42 U.S.C. 12183 (commercial facilities), 42 U.S.C. 12184 (public transportation services provided by private entities). Congress borrowed from the 1964 Act the remedial structure contained in section 204(a), but it did not thereby incorporate any of the other provisions of section 204. Congress could simply have described in Title III of the ADA the remedies and procedures it intended to provide to aggrieved persons. If it had done so, there would be no argument that Congress intended to require such persons to exhaust State or local administrative remedies. The fact that Congress used subsection 204(a) of the 1964 Act as a shorthand method to refer to the remedies and procedures it intended to provide should not change that result.5/ ___________________________________ 5/ Even if the district court were correct that subsection 204(c) of the 1964 Act is implicitly incorporated into the ADA along with the specifically-referenced subsection 204(a), the court erred in holding that subsection 204(c) requires individuals to "exhaust" state administrative remedies. Subsection 207(a) of the 1964 Act specifically provides (42 U.S.C. 2000a-6(a)) that [t]he district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subchapter and shall exercise the same without (continued...) 01-07163 -12- The district court's decision provides no legal analysis for its conclusion that ADA Title III plaintiffs must follow the procedures of subsection (c) of section 204. The underlying rationale would seem to be, however, that by incorporating subsection 204(a), Congress must necessarily have intended to incorporate the rest of section 204 as well. An examination of the other subsections of section 204 that are also not specifically incorporated demonstrates the fallacy of any such reasoning. Title III of the ADA does not refer specifically to section 204(d) of the 1964 Act, which applies under Title II of the 1964 Act where the alleged discrimination takes place in a state where there is no state law prohibiting such discrimination. Under those circumstances, subsection 204(d) allows a court in which a civil action is commenced pursuant to section 204(a) to refer the matter to the Community Relations Service (CRS) for a limited time, if it believes there is a "reasonable possibility of obtaining voluntary compliance." Although the district court's rationale would suggest that subsection 204(d) may be followed by ____________________ 5/ (...continued) regard to whether the aggrieved party shall have exhausted any administrative or other remedies that may be provided by law. In reconciling the seeming contradiction between subsection 204(c) and subsection 207(a), courts have concluded that subsection 204(c) requires only that the aggrieved person give notice of the alleged violation to the state or local agency and wait 30 days thereafter before filing suit; exhausting the state or local remedy is not a jurisdictional prerequisite to suit. Harris v. Erickson, 457 F.2d 765, 766 (10th Cir. 1972). 01-07164 -13- a court in which an ADA Title III action is filed, Congress could not have intended such a result. Since the ADA did not expand the jurisdiction of the CRS to allow it to mediate issues of discrimination based on disability, Congress could not have intended subsection 204(d) to be incorporated by implication into Title III. Neither does the ADA refer to subsection (b) of section 204 of the 1964 Act, which allows a court to award attorney's fees to a prevailing party other than the United States in an action brought pursuant to subsection 204 (a). Congress certainly did not intend to incorporate subsection (b) because the ADA contains a separate attorney's fees provision, 42 U.S.C. 12205, that is applicable to all civil actions and administrative proceedings brought pursuant to the ADA. As this Court has recognized, a statute " ' is as significant for what it omits as for what it says.'" In re TMI, 67 F.3d 1119, 1123 (1995), quoting Williams v. Wolgemuth, 540 F.2d 163, 169 n.30 (3d Cir. 1976). See also Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947) (in construing a statute, "[o]ne must also listen attentively to what it does not say.") The inherent differences between Title II of the 1964 Act and Title III of the ADA demonstrates the error in the district court's attempt to pick and choose, on its own, portions of the 1964 Act to incorporate into the ADA. Rather, 01-07165 -14- the district court was bound by the plain language of section 308 of the ADA to allow Ozga to proceed with her suit.6/ ______________________ 6/ The only discussion in the legislative history of the ADA of prerequisites to filing a federal action under Title III is contained in a colloquy between Senator Harkin, one of the primary sponsors of the ADA and the floor manager of the bill, and Senator Bumpers, a co-sponsor. Although the colloquy is apparently addressed to the question whether Title III creates any federal administrative remedy, it indicates that it was not accidental that Congress incorporated only subsection (a) of section 204. MR. BUMPERS. * * * if somebody who is disabled goes into a place of business, and we will just use this hypothetical example, and they say, "You do not have a ramp out here and I am in a wheelchair and I just went to the restroom here and it is not suitable for wheelchair occupants," are they permitted at that point to bring an action administratively against the owner of that business, or do they have to give the owner some notice prior to pursuing a legal remedy? MR. HARKIN. First of all Senator, there would be no administrative remedy in that kind of a situation. The administrative remedies only apply in the employment situation. In the situation you are talking about -- MR. BUMPERS. That is true. So one does not have to pursue or exhaust his administrative remedies in title III if it is title III that is the public accommodations. 135 Cong. Rec. 10759-10760 (Sept. 7, 1989). If Congress had intended to incorporate subsection 204(c) of the 1964 Civil Rights Act into Title III of the ADA, it is likely that either Congressmen Harkin or Bumpers would have made reference to it during this colloquy. The fact that they did not is persuasive evidence against the district court's interpretation of the statute. 01-07166 - 15 - CONCLUSION The judgment of the district court should be reversed. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General ___________________________ JESSICA DUNSAY SILVER MARIE K. McELDERRY Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068 01-07167