APTA: Statement Of The Amicus Curiae New York City Transit Authority

Government Affairs

TABLE OF CONTENTS

Statement of the Amicus Curiae, New York City Transit Authority

THE REGULATORY HISTORY OF ADA PARATRANSIT REGULATIONS DEMONSTRATES THAT THE DISTRICT COURT HAS MISCONSTRUED THE "RESPONSE TIME" AND "CAPACITY CONSTRAINTS" REGULATIONS

THE "RESPONSE TIME" REGULATION DOES NOT MANDATE ANY LEVEL OF TRIP CAPACITY; IT SOLELY REGULATES THE TRIP RESERVATION PROCESS
"TRIP CONFIRMATION," "STANDBY" AND OTHER TYPES OF TRIP RESERVATION POLICIES ARE NOT GOVERNED BY THE "CAPACITY CONSTRAINTS" REGULATION; THEY ARE GOVERNED BY THE "RESPONSE TIME" REGULATION
THE "CAPACITY CONSTRAINTS" REGULATION IS A SERVICE QUALITY REGULATION WHICH MANDATES EQUAL ACCESS AND RELIABLE SERVICE; IT DOES NOT MANDATE "0" TRIP DENIALS

CONCLUSION

Certificate of Compliance

TABLE OF AUTHORITIES

CASES
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)	23, 24
Gonzalez, et al. v. Metropolitan Transportation Authority and New York City Transit Authority, CV-98-7039 (E.D.N.Y.)	1
FEDERAL STATUTES
Americans with Disabilities Act of 1990, 42 U.S.C. 12143	1, 9, 11, 28
STATE STATUTES
New York Public Authorities Law 1201-1221 (McKinney's 1999 & Supp. 2001)	1
FEDERAL REGULATIONS
49 C.F.R. 37.121- 37.155 2001)	1,10
49 C.F.R. 37.123 (2001)	19
49 C.F.R. 37.125 (2001)	20
49 C.F.R. 37.131 (2001)	passim
49 C.F.R. 37.133 (2001)	26
49 C.F.R. 37.137 (2001)	11
49 C.F.R. Part 37 APP. D (2001)	19, 22
OTHER AUTHORITIES
56 Fed. Reg. 13,856 (1991)	9, 11, 12, 16, 18
56 Fed. Reg. 45,584 (1991)	passim
59 Fed. Reg. 37,208 (1994)	13, 14
61 Fed. Reg. 25,409 (1996)	1, 14, 15
Webster's New Universal Unabridged Dictionary, Deluxe 2d ed. (1983)	24

STATEMENT OF THE AMICUS CURIAE NEW YORK CITY TRANSIT AUTHORITY

The New York City Transit Authority (hereinafter "NYCT") is a New York State public authority and public benefit corporation authorized by the New York Public Authorities Law 1201-1221, to, inter alia, operate the rapid transit (subway) and bus systems in New York. In July 1993, NYCT assumed operation from the City of New York of the paratransit service called "Access-A-Ride," agreeing to expand the service to meet the requirements of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12143, and the implementing paratransit regulations promulgated by the United States Department of Transportation ("U.S. DOT"), and codified at 49 C.F.R. 37.121-37.155 (2001). The decision of this Court will have applicability to NYCTs operation of its paratransit service.

In November 1998, NYCT was sued by several individuals and organizations, claiming that Access-A-Ride ("AAR") service did not comply with federal paratransit regulations, in particular, the so-called "capacity constraints" regulation set forth at 49 C.F.R. 37.131(f)(3). Gonzalez, et al. v. Metropolitan Transportation Authority and New York City Transit Authority, CV-98-7039 (E.D.N.Y). For the year 1998, NYCTs "trip denial rate" was 5.4%.

NYCT settled the action by agreeing, inter alia, to operate a service in which no more than one per cent of requested trips per month would be denied ("1% denial rate"). The Agreement was in effect for 28 months, from September 1999 through December 2001. (1) Apart from the litigation and settlement, NYCT had set an internal goal to attempt to meet all demand; i.e., deny no requested trips.

NYCTs experience has shown that the closer an operation gets to achieving 0 trip denials, the higher the per-trip cost; and that a service that promises to meet all demand, as the district court appears to have ruled is mandated by ADA, induces ever-increasing numbers of people to seek paratransit eligibility, ever-increasing numbers of trip requests, as well as increasing numbers of customer trip cancellations, no-shows and other wasted resources. This runs counter to the entire philosophy of ADAs public transportation mandates.

Paratransit was to have two purposes. First, it was to be a stop-gap measure for most disabled people while public transit operators made their fixed route transit accessible. Second, over the long-term it would serve only a limited segment of the disabled population who could not use even accessible buses and subways because of their disabilities. As described by U.S. DOT:

The ADA is a civil rights statute, not a transportation or social service program statute. The ADA clearly emphasizes nondiscriminatory access to fixed route service, with complementary paratransit acting as a "safety net" for people who cannot use the fixed route system. Under the ADA, complementary paratransit is not intended to be a comprehensive system of transportation for individuals with disabilities.

Another way of saying this is that the ADA does not attempt to meet all the transportation needs of individuals with disabilities.

As one [advocate] suggested . ADA is intended to provide the same mass transportation service opportunities everyone else gets, whether they be good, bad or mediocre.

56 Fed. Reg. 45,584, 45,601 (1991).

As NYCT and transit properties across the country make sizeable investments in accessible bus and subway service (e.g., NYCTs bus system of 200 local routes throughout the City, as well as its interborough express commuter service, has been 100% accessible since 1995), one should expect a diminution in applications for and usage of paratransit. Instead, due to interpretations of regulations such as those challenged in this appeal, paratransit has become much more than a safety net, as eligibility and usage grow unabated.

NYCTs experience is that it is not possible to operate a "0 denial rate" paratransit service (and even to consistently over the long-term maintain a "1% denial rate") in an environment in which eligibility rolls and trip demand keep increasing at significant rates. In such an environment, demand is unpredictable at a daily level. At best, a transit entity could develop annual projections and develop annual service capacity in accordance with those projections. This typical method of transportation planning, however, will not produce 0 denials on any given day. Any other method is simply not feasible (2), rational (3) or required by ADA.

As of December 31, 1998, NYCT operated a paratransit system in which there were 39,600 AAR registrants (ADA-eligible customers). By December 31, 2001, when the Settlement Agreement expired, the number of AAR registrants had risen to 64,902 (4). In 1998, the number of trips requested totaled 1,424,373. For 2001, the number of trips requested almost doubled to 2,718,644. In 1998, the "fully-loaded" (all costs included--transportation, fleet maintenance, eligibility determinations, trip scheduling, etc.) per-trip cost was $43.15; by 2001 that cost had risen to $54.16. The number of AAR vehicles needed to perform the trips tripled from 235 in 1998 to 730 in 2001, and will exceed 800 in 2002. This demonstrates the infeasibility, indeed futility, of attempting to meet a 0 trip denial standard in a growing service. The cost per trip grows as the denial rate decreases, because disproportionately more vehicles are needed for the additional number of trips to be performed to get to zero. Eventually demand outpaces available capacity, and a new round of cost growth commences (5).

Despite allocation of extraordinary resources, NYCT was able to achieve 0 denials only in four consecutive months (January-April 2000) (6). For the remaining months of the Agreement, the denial rate ranged from 0.1% to 1.5%. In the last month of the Agreement, the rate was 0.6%. This translated to 1,704 denials, or an average of 55 per day (7).

The 0 denials goal was not achieved despite a more-than-doubling of the budget, a doubling of the service capacity of the three citywide service providers under contract in 1998, the addition of eight targeted service providers, the initiation of a pilot "taxi voucher" program, and a significant expansion of a "taxi reimbursement" program.

In 1998, the AAR budget was $41,537,000. By 2001, the budget had climbed to $109,258,000. For 2002, in which NYCT has planned to meet at least the 1% denial rate standard, the budget is $140,601,000. NYCT now contracts with eight citywide service providers, while still maintaining four supplemental carriers, the expanded taxi reimbursement program, and the pilot taxi voucher program, which is about to become permanent and to be expanded citywide. Current projections are that by 2005, the number of AAR customers will reach 115,000, trip demand will approach 5,000,000, the cost (to NYCT) per trip will exceed $58.00, and the budget will exceed $260,000,000.

NYCT submits this brief in support of the defendants-appellants, Rochester-Genesee Regional Transportation Authority, et al. ("RGRTA"), and urges that this Court reverse the Decision and Order of the district court. If the district courts interpretation of paratransit regulations were to be affirmed, NYCTs service could be considered to violate ADA solely because the service has not kept ahead of fast-growing eligibility rolls and demand. RGRTA, a smaller transit system than NYCT, will find itself three years hence in as untenable a position as does NYCT three years after it entered into a Settlement Agreement to meet standards not even as stringent as the district court in this case has ruled is required by the regulations. As shown in NYCTs Argument, the district court has misconstrued those regulations.

SUMMARY OF ARGUMENT

In proposing and then promulgating after public comment the ADA paratransit regulations, U.S. DOT explained their purpose and meaning. By analyzing this history, this Court should conclude, contrary to the district court, that the so-called "response time" regulation addresses nothing more than reservation policies and procedures which must be followed. In addition, the Court should conclude, contrary to the district court, that issues such as confirmation of trips, standby trip requests and other such reservation procedures are governed by the "response time" procedural regulation and are permissible; they are not governed by the "waiting list" prohibition of the so-called "capacity constraints" regulation.

Finally, the regulatory history shows, and this Court should conclude, that the "capacity constraints" regulation does not mandate any specific level of service, much less the level required in the district courts view 100% of all demand at all times. That regulation only proscribes five specific types of service characteristics that, when present excessively and intentionally, produce a service that is unreliable, thereby artificially "constraining" the service by discouraging customers from using it. This interpretation is reinforced by an examination of two other paratransit service regulations, "trip purpose" and "subscription service," both of which would be irrelevant if the ADA paratransit regulations actually required that all trip demand be met.

ARGUMENT

THE REGULATORY HISTORY OF ADA PARATRANSIT REGULATIONS DEMONSTRATES THAT THE DISTRICT COURT HAS MISCONSTRUED THE "RESPONSE TIME" AND "CAPACITY CONSTRAINTS" REGULATIONS

The Americans with Disabilities Act of 1990 ("ADA") mandated accessible mass transit and the creation of paratransit transportation (generally, advance reservation, door-to-door service) for eligible persons with disabilities wherever "fixed route" transportation (generally, intracity rail or bus service operating along fixed routes according to fixed schedules) was available (8). ADA directed the U.S. Department of Transportation ("U.S. DOT") to issue regulations to carry out the statutory mandate. 42 U.S.C. 12143(a) and (b). In meeting its obligations thereunder, U.S. DOT issued proposed regulations for public comment, 56 Fed. Reg. 13,856 (1991), proposed April 4, 1991, and thereafter promulgated final regulations, 56 Fed. Reg. 45,584 (1991) (to be codified at 49 C.F.R. 37.121-37.155). The commentary accompanying these actions and later rule revisions by U.S. DOT shed light on the actual purpose and meaning of the two regulations at issue on this appeal, and show that the district court has misconstrued the "response time" and "capacity constraints" regulations.

A. The "Response Time" Regulation Does Not Mandate any Level of Trip Capacity; It Solely Regulates the Trip Reservation Process

The "response time" regulation requires that the transit entity accept reservations the day before the individual wants to travel, 49 C.F.R. 37.131(b); requires that reservations be accepted during all normal business hours of the entity, 37.131(b)(1); permits the time of travel to be negotiated within a two-hour window around the customers requested trip time, 37.131(b)(2); and permits the use of "real-time" scheduling, instead of "day before" scheduling, 37.l31(b)(3). As initially promulgated in 1991, the regulation also required that reservations must ("shall") be accepted not just the day before but up to 14 days in advance of the travel day. See 56 Fed. Reg. at 45,636 (1991), final promulgation of 49 C.F.R. 37.131(b)(4). In 1996, U.S. DOT revised the "14-day" regulation to its current form in which a transit entity is permitted to ("may") accept reservations up to 14 days in advance of the day of travel. In addition, a new provision was added to 37.131(b)(4): "When an entity proposes to change its reservations system, it shall comply with the public participation requirements equivalent to those of 37.13[7](b) and (c)." (9) See 61 Fed. Reg. 25,409, 25,416 (1996).

"Response time" is a service criterion specifically mentioned in the ADA statute in a manner that makes clear that it is a separate issue from "capacity." The statute states, as pertinent here:

[transit entities are to provide] paratransitsufficient to provide a level of service (1) which is comparable to the level ofpublic transportation; or (2) in the case of response time, which is comparable, to the extent practicable, to the level ofpublic transportation"

42 U.S.C. 12143(a). Subdivision (1) relates to all other aspects of paratransit service, including capacity; subdivision (2) relates to the advance reservation aspect, which has no counterpart in fixed route service. "Response time" simply addresses how far in advance a transit operator can require that customers call to reserve a trip. 56 Fed. Reg. 13,856, 13,869-70 (1991). For economy reasons, operators prefer longer lead times. For spontaneity reasons, customers prefer shorter times.

U.S. DOTs commentary to its proposed response time regulation focuses on two issues: (a) how far in advance of a desired trip must a paratransit user call to make a reservation; (b) hours of the day during which reservations must be taken by the transit providers. 56 Fed. Reg. at 13,869-70. The proposed regulation simply required that reservations must be permitted up to the day before the day of travel. In addition, reservations must be taken during the normal business hours of the transit operator on the day before every service day, even on weekends when business offices may be closed. See Proposed 37.111(c)(2), 56 Fed. Reg. at 13,888.

After receipt of public comment, the final rule added new reservations criteria: that operators are permitted to use "real-time" scheduling; that reservations must be accepted up to 14 days in advance; that trip times can be negotiated within a two-hour window. 56 Fed. Reg. at 45,635-36, 37.131(b). Again the commentary focused on reservations procedures, and the balance to be achieved between operators who favored long advance reservation periods because that enabled them more time to produce workable trip schedules, and the paratransit users who wanted the ability to make trip decisions spontaneously as is possible on mass transit, and who thus favored "real-time" scheduling. See 56 Fed. Reg. at 45,606 ("The Department is retaining the next-day scheduling provisionIt is a good balance").

At no point in its discussion of the "response time" regulation does U.S. DOT in any way suggest that its intention is to assure that every trip requested the day before a travel day would have to be granted by the paratransit provider, just that users could request trips up to the day before the travel day. That capacity was not the issue addressed by this regulation becomes crystal clear in U.S. DOTs 1994-96 process of revising this regulation.

In 1994, U.S. DOT published a petition for rulemaking in which two petitioners proposed to revise the "response time" regulation by eliminating the "14-day" provision. 59 Fed Reg. 37,208, 37,210-11 (1994). One of the petitioners sought the change to deal with the waste of resources that transit operators experienced due to high numbers of late cancellations and "no-shows" (see fn. 7, at 6) by customers who reserved well in advance of the trip day and then did not take the trip (10). Id. at 37,210. The other petitioner sought the change because another effect of the rule was to use up capacity before the mandated "day-before" scheduling:

What the 14-day advance provision does is to institutionalize capacity constraints, with a preference for people who have decided on their trip well in advance.

59 Fed. Reg. at 37,211 (emphasis in original). If U.S. DOT intended the "response time" regulation to mandate that all "next-day" requests be honored, that would have been the short answer to this petitioners petition for a rule change. Instead, U.S. DOT decided to seek public comment and then decide whether the regulation should be revised. Id. at 37,209.

In adopting a revised rule in 1996, U.S. DOT made the 14-day rule permissive instead of mandatory, and otherwise added a requirement that any changes that a paratransit provider wanted to make in its reservation system must go through a "public participation" process. 61 Fed. Reg. 25,409, 25,416 (1996). A principal concern of the comments U.S. DOT received clearly was how to permit flexibility as to when a trip could be reserved without using up all capacity prior to the day before the trip day. Id. at 25,412-13. (The issue of stemming excessive customer "no-shows" and cancellations was the other principal area of comment.) Ultimately, in response to "abundant and varied suggestions for improving reservations systems," 61 Fed. Reg. at 25,413 (emphasis added), U.S. DOT decided to make the 14-day period discretionary, noting:

One of the apparent reasons that users take advantage of existing advance reservation systems in large numbers is their apprehension that, if they wait until the day before travel, the capacity of the system to serve them will have been xhausted[T]ransit providers need to make sure that adequate vehicle and communications capacity is available, such that systematic denials of service do not exist to an extent that would constitute a capacity constraint (see 37.131(f)(3)(i)(B)).

61 Fed. Reg. at 25,413 (emphasis added). It cannot be clearer that U.S. DOT intended the "response time" regulation to address reservations procedures, not transportation service levels; that it is the "capacity constraints" regulation alone that addresses the subject of service capacity; and that the "capacity constraints" regulation does not mandate that all trip requests be met. The district court therefore erred in holding that the "response time" regulation requires paratransit providers to provide all trips requested the day before the travel day. JA at 24.

B. "Trip Confirmation," "Standby," and Other Types of Trip Reservation Policies are Not Governed by the "Capacity Constraints" Regulation; They are Governed by the "Response Time" Regulation

The district court denied summary judgment to RGRTA on plaintiffs "waiting list" claim. JA at 26. In so doing, the court erred by failing to review the RGRTA scheduling methods, about which the plaintiffs complained, under the appropriate regulation the "response time" regulation, 49 U.S.C. 37.131(b), discussed at Subpoint A above. Instead, the court reviewed them under the so-called "capacity constraints" regulation, specifically as constituting the "waiting lists" that are prohibited by the "capacity constraints" regulation, 49 C.F.R. 37.131(f)(2). Although a denial of summary judgment may not be appealed, this Court should not remand this case to the district court for further proceedings without correcting that courts erroneous interpretation of RGRTAs trip confirmation procedures.

Trip confirmation policies were a common feature of paratransit reservations systems at the time U.S. DOT first promulgated ADA paratransit regulations in 1991. That they were not a cause for concern is demonstrated by the fact that nowhere in the extensive commentary by U.S. DOT in its publications of proposed and final regulations (56 Fed. Reg. 13,856 [proposed]; 56 Fed. Reg. 45,584 [final] [1991]) did the agency even raise the issue as something that might need to be regulated (11).

NYCT currently has a limited "standby" or "trip confirmation" policy. NYCTs customers consider this standby service to be a benefit; NYCT considers it to be a customer-friendly reservation policy, and one way in which NYCT attempts to meet its 1% denial rate commitment.

Standby or confirmation service is a typical way to handle advance reservation travel. If a provider permits reservations up to 14 days in advance because that is the policy that resulted from the required public participation process in that community, then the only way in which the provider can schedule service to equal service capacity is to allocate a maximum percentage of the daily service capacity to be scheduled each day prior to the service day, place additional requests on standby/confirmation, and then to accommodate standbys by using the large number of early cancellations that routinely occur in paratransit service by persons who schedule well in advance (12).

The regulatory history discussed above in Subpoint A demonstrates that transit entities may design their own reservations systems (subject to public participation in their development). They simply cannot include policies that would run afoul of any of the specific "response time" reservation regulations. RGRTAs trip confirmation and standby policies clearly do not violate any specific "response time" provision, all of which are identified and discussed in Subpoint A, supra, at 10-14.

Instead, the district court in error interpreted these reservations procedures to be a species of "waiting lists," prohibited by the "capacity constraints" regulation. 49 C.F.R. 37.131(f)(2).

When ADA paratransit regulations were first proposed, U.S. DOT included the "waiting lists" provision in the "capacity constraints" proposed regulation without any explanation of it. See 56 Fed. Reg. at 13,888,

Proposed 37.111(c)(6), and commentary, 56 Fed. Reg. at 13,871.

Upon final promulgation (in the same form as proposed) and in the published Appendix to the codified final rules, the "no waiting lists" requirement was discussed. U.S. DOT stated that it was prohibiting waiting lists because on fixed route transportation a passenger is not told "that he needs to work his way to the top of a waiting list before he can elbow his way onto a train." (13) 56 Fed. Reg. at 45,608. In other words, "first come, first served": anyone who want to use a bus or subway has the same chance to ride as everyone else. In the Appendix, the commentary makes clear, as fully discussed in RGRTAs main brief, at 36-39, and thus not repeated here, that what is proscribed is a cap on the numbers of persons who are registered as ADA-eligible at any one time, as these are the only persons who can call and request a trip (14). See 49 C.F.R. 37 App. D 518, 528 (2001). In other words, as on fixed route service, "first come, first served": all persons who meet ADA eligibility criteria should have equal access to the service. Capping the allowable number of eligibles would not provide equal access as is enjoyed by users of fixed route transportation.

By indicating that a standard method of advance reservation booking, such as RGRTAs, can be a prohibited waiting list and thus denying summary judgment to defendants on this claim, the district court effectively has ruled, when combining its "response time" ruling and its "waiting list" interpretation, that not only does ADA require that every trip requested the day before the travel day be provided, but, in addition, that every trip requested up to 14 days before also must be provided (if the local reservation scheme is to allow reservations up to 14 days in advance). Implicitly, the effect of the district courts combined interpretations is that it is appropriate for the taxpayers and the mass transit farepayers, while they still try to "elbow their way onto a train," to absorb the cost of all wasted paratransit capacity all the early cancellations (in addition to absorbing the cost of all of the "standby" capacity needed to meet every trip request every day) (15). (See supra, at 17 & fn. 12.) Moreover, if all trips must be granted whenever requested, the "response time" regulation as interpreted by the district court is redundant and unnecessary.

This Court should not affirm, in the guise of enforcing the civil rights of the disabled, unsupportable albeit sympathetic interpretations of regulations that lead to infeasible, irrational mandates and great waste of public resources. Trips that are available and thus paid for by the transit operator, but not used, serve no one, deny transportation to others, and guarantee no ones civil rights.

C. The "Capacity Constraints" Regulation is a Service Quality Regulation Which Mandates Equal Access and Reliable Service; It Does Not Mandate "0" Trip Denials

After prescribing specific "service criteria" in 49 C.F.R. 37.131(a)-(e), U.S. DOT added a "catch-all" provision addressed to operational issues: 49 C.F.R. 37.131(f), referred to as the "capacity constraints" regulation. Thus, the regulatory scheme which, in effect, "designed" the ADA paratransit system, recognized that one can be in compliance with every specific service criterion but still operate the service in such an unfair or unreliable way that the disabled customer either is denied equal access by having to wait to be registered (waiting lists) or given trip caps (trip number restrictions), or is provided with a service that is so unreliable excessive denied, missed or late trips -- that the individual seeks out alternate means of transportation. Thus, disabled customers who cannot use fixed route service in the end would not have an alternative public transportation system comparable to the fixed route system available to them if the system were to be defined by these deficiencies.

U.S. DOT provides examples of unreliable service to illustrate violations of 49 C.F.R. 37.131(f)(3), which according to the agency prohibits "operational patterns or practices that constrain usage." See 49 C.F.R. Part 37 App. D, at 529 (2001). These examples of excessive denied, missed and late trips:

probably cover the most frequently cited problems in paratransit operations that directly or indirectly limit the provision of service that is theoretically available to eligible persons [but the list is not exhaustive].

All of the examples given are those of egregious paratransit service reliability (quality). Id. at 528-29. If a de minimus number of denied, missed or late trips were all that were required to trigger a violation of this provision, there would be no point in providing examples of egregious operations. It would be easy enough to explain that this regulation prohibits all but minor deviations from perfection. It also is to be noted that the examples illustrate deficient paratransit systems, not bad experiences of any individual users. Id.

Unfortunately, plaintiffs and the district court believe that not only does ADA mandate a perfect transportation system (by interpreting the regulations as providing that only deficiencies that are outside the control of the paratransit operator are excusable), but that it is actually possible to routinely provide deficiency-free transportation to high volumes of people on high volumes of trips. This is erroneous.

The "capacity constraints" regulation bars widespread, intentional service deficiencies or intentional failures to address such problems once perceived. (Even once perceived, there will necessarily be a lag between identifying a problem and correcting it, which can be many months; for example, if one has to terminate a poor-performing contractor and contract with a new one). The very words used in 49 C.F.R 37.131(f)(3) -- no "operational pattern or practice" that "significantly" limits service, such as "substantial" numbers of trip denials -- show that intentional, major, chronic, pervasive deficiencies are what this regulation seeks to prevent.

The phrase, "operational pattern or practice," can only have been adopted to have the same meaning already (prior to adoption of ADA) afforded to this phrase in civil rights law; namely, widespread or systemic, intentional acts; intentional discrimination as "standard operating procedure." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). U.S. DOT concurs that this regulation is meant to address widespread, intentional acts. See 56 Fed. Reg. at 45,608, where the agency states its belief that the "capacity constraints" regulation provides "adequate redress" for "systemic" problems in service delivery. "Substantial," as it relates to numbers, in common usage means "of considerable size or amount; large." Likewise, "significantly" means "important" or "momentous." (16) Given that the regulation emphasized, not once, but three times, its intention to address major, widespread deficiencies, any legal argument or court interpretation that reads this regulation as meaning that a paratransit provider is in violation of law if even one or a few trips, or a small percentage are denied (17) simply cannot stand.

When adopting the "capacity constraints" regulation, U.S. DOT referred to the trip denial aspect as one that proscribes "chronic" denials. The agency also referred to the "capacity constraints" regulation as addressing service quality, and noted that its aim is to prevent "systemic" problems in service delivery. 56 Fed. Reg. at 45,608.

In discussing the decision to promulgate this regulation, U.S. DOT cited an egregious example of a paratransit system that operated with such a high percentage of extremely late trips that "more than half" of the customers quit the system "because of its unreliability." Id. at 45,608. It is thus apparent that a reliable public paratransit system is what U.S. DOT sought to achieve with this regulation, not a utopian system with extraordinarily high service quality requirements such that no expense is to be spared. This is not a private sector, unsubsidized service.

As on fixed route transportation, there will of necessity be a lag between recognition of a pattern of increased demand and the ability to secure additional vehicles and drivers, dispatchers, reservationists and other personnel, and perhaps even additional depots, all critical to the ability to deliver increased service. Even with all reasonable forward planning to provide service for all projected demand, demand can turn out to exceed projections. By definition, statistical projections are not precise, especially when eligibility rolls are expanding (one never knows in advance how frequently each new eligible user will use the service, one can only base projections on historical average usage). Transportation is not a mathematical science. It is a human endeavor on the part of the operators and a human activity on the part of the customers.

Finally, reference to two other ADA paratransit regulations -- trip purpose" and "subscription service"-- shows that neither the "response time" nor the "capacity constraints" regulation was ever intended to require a service that accommodated all trips at all times. If that were the correct interpretation of the regulations at issue in this case, these other regulations would be wholly irrelevant.

The "trip purpose" provision prohibits an entity from restricting or prioritizing trips based on the reason for the trip (e.g., work, medical, movie). 49 C.F.R. 37.131(d). U.S. DOT believed that permitting trip purpose restrictions would make paratransit a "social service," 56 Fed. Reg. at 45,607, and thus prohibited it. If all trip requests must be provided, however, this regulation has no purpose. There would be no need to assure that priority is not given to certain types of trips (e.g., medical trips) over others (e.g., trips to movie theaters), which some commenters had recommended be permissible. Id.

The same is true of the regulation requiring that "subscription service" may equal no more than 50% of total service capacity at any given time of day "unless there is non-subscription capacity." 49 C.F.R. 37.133. The purpose of this provision is to assure that there is sufficient capacity for "spontaneous" or "ad hoc" trips. (18)Thus, the regulation assumes limits on capacity, and therefore mandates a maximum percentage that can be allocated to subscription service. See 56 Fed. Reg. at 45,609:

[S]ubscription service can be a valuable component of a complementary paratransit system. Therefore, we [U.S. DOT] agree with commenters who wish us to specify that such a system is permissible.

At the same time, we also agree that it would be inconsistent with the notion of a comparable paratransit system to let subscription service absorb the full capacity of the system, as it might at a given time of day (e.g., peak times for work trips).

(Emphasis added.) Simply stated, there is no need for a provision limiting the percentage of subscription service that is permissible if all demand is to be met, since under such a "no constraints" system there would always be sufficient capacity for spontaneous or ad hoc trips. (Indeed, as NYCT has attempted to meet all demand these last three years, the percentage of subscription service has declined from about 30% to less than 20%, even though the absolute numbers have not, and even though NYCT is employing subscription service to the maximum extent feasible.)

Unfortunately, the focus in paratransit litigation has been on "individual trips" -- the claim by plaintiffs that ADA has given each eligible paratransit user the right to an on-time trip on demand, and that each and every failure to provide one by the paratransit operator is a violation of that users civil rights. This position not only trivializes the meaning of a civil right, it does not comport with the clear intention of Congress in enacting this section of ADA. Congress mandated that it would be "discrimination" under ADA for a public entity that operates a fixed route system to fail to provide a "comparable" paratransit system for eligible individuals. 42 U.S.C. 12143(a) and (e). No public transportation system meets all potential users needs all of the time, nor can a paratransit system. The paratransit system simply must be comparably reliable as the local public transportation system, and, within the system, the potential users all must have equal access, as in fixed route service.

U.S. DOTs regulations seek to implement the statutory intent by designing a "comparable system" and then prohibiting system deficiencies of such a magnitude that the service is unreliable and thus not utilized. The district court, in focusing on individual trip denials, instead of on RGRTAs system of service provision, simply missed the point of ADA and of public transit.

CONCLUSION

FOR THE REASONS SET FORTH ABOVE,THE DISTRICT COURTS DECISIONSHOULD BE REVERSED.

Dated: Brooklyn, New York

March 13, 2002

Respectfully submitted,

NEW YORK CITY TRANSIT AUTHORITY

Amicus Curiae

Mary McCorry, of Counsel

Martin B. Schnabel, General Counsel

130 Livingston Street, Rm. 1244

Brooklyn, New York 11201

Tel.: (718) 694-5715

Fax: (718) 694-5728

399386

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief complies with the type-volume limitation for an Amicus Curiae brief. This brief was produced in Times New Roman 14-point proportional type and contains 5,369 words.

Mary McCorry, Esq.

Footnotes:

1) The parties are now in litigation pursuant to a motion by plaintiffs to extend the agreement and a cross-motion by NYCT to dismiss the complaint with prejudice. The facts submitted in this Statement are a matter of public record, and for the most part have been submitted as affidavit testimony by NYCT's Paratransit Division management on NYCT's pending cross-motion to dismiss.

2) Plaintiffs in the litigation against NYCT have stated that ADA mandates that public transit utilize scarce resources to acquire and maintain "standby" (excess) capacity. Although NYCT disagrees that ADA requires it, maintaining excess capacity is the only way to never deny a trip. To pay for standby service, a public transit entity would need to be in a financial position to have large amounts of dollars to spare. All public transit entities, however, operate with taxpayer subsidies; i.e., even with efficient fixed route service (bus and subway) fares do not cover operating costs. No new funding was appropriated -- at the federal, state or local level -- for any of the new ADA obligations, much less funding for excess capacity for paratransit.

3) Given the need for subsidies to operate public transit, including paratransit, it would be irrational to obtain unused, "just-in-case" service capacity. No fixed route system operates in this manner. Capacity always plays "catch-up" to demand, based on funding availability. Furthermore, there is no way to accurately predict precisely how much excess capacity must be maintained.

4) During 2001, NYCT received an average of more than 2,000 applications per month (24,547 for the year).

5) At NYCT, unlike fixed route service, in which fare revenue funds about 70% of the cost per trip, paratransit fare revenue now funds only 3% of the cost per trip. This percentage diminishes as the service grows (at least until there is a fare increase), because, as discussed above, attempting to approach zero requires the service to become less and less productive.

6) December 1999 was the first month in which the Settlement Agreement required NYCT to meet the 1% denial rate standard. Thus, for 25 of the 28 months in which the Agreement was in effect, NYCT sought to maintain no more than a 1% denial rate and in fact attempted to achieve 0%.

7) At the same time, customers "late cancelled" or "no-showed" 6.4% of all trips they scheduled in December 2001, or a total of 15,971 trips for the month-515 per day-transportation capacity made unavailable for use by other customers and requiring NYCT to maintain excessive capacity to provide those other customers a service that costs NYCT more than $54.00 per trip (see text, supra, at 5). A "late cancellation" is one which occurs at any time after the time during which next day trip requests can be made; at NYCT, this is a trip cancelled after 5:00 p.m. the day before the trip. A "no-show" is a customer's failure to cancel or appear for a scheduled trip.

8) The district court, in its discussion of the legislative history preceding the enactment of ADA, seems to believe that paratransit is the only form of public transportation available to the disabled. See Decision and Order, Joint Appendix (hereinafter "JA") at 3-4. To the contrary, ADA mandated that all new fixed route buses purchased or leased must be accessible, as defined by ADA; "key" subway stations (100 in New York City) must be retrofitted for accessibility, as defined by ADA; new subway cars purchased must be ADA accessible; all station renovations must include all accessibility features that can be built, up to a 20% add-on to the project cost; all new stations must be constructed ADA accessible. Paratransit was to be only a "safety net." See supra, at 3, quoted statement of U.S. DOT.

9) The regulation as set forth in the Federal Register and in the Code of Federal Regulations contains a typographical error in that it refers to "public participation requirementsof 37.131(b) and (c)." Those requirements actually are set forth at 37.137(b) and (c).

10) In 1999, NYCT changed its reservation policy to "1 - 4" days (i.e., trip reservations can be made no later than the day before and no earlier than four days before the travel day). This change did not achieve the hoped-for result: customer late cancellations and no-shows have remained very high. See supra, fn. 7, at 6.

11) Until 1997 when NYCT centralized and automated its reservation and scheduling system, all trip reservations were performed as a "trip confirmation" process. Reservations were taken manually by its three contractors. Customers were required to call in their trip requests up to seven days in advance. The night before the travel day, the contractors would call back to confirm the trip (or deny it). Small transit jurisdictions today may very well still operate paratransit on a manual basis. They would not be able to give real-time trip confirmations, at least not as the available service gets closer to being fully booked. As shown in the text, this is not prohibited by any paratransit regulation.

12) In fn. 7, at 6, NYCT discusses late cancellations and no shows. The number of "early cancellations" (those that occur before 5:00 p.m. the day before the trip) is much larger. In December 2001, the same month used to report data in fn. 7, NYCT's AAR customers "early cancelled" 29,491 trips out of 232,091 requested, or 12.7%. At NYCT's per-trip cost of $43.15, the district court's view, if upheld by this Court, that "standby" service can constitute a prohibited waiting list, would require that all of this trip capacity go begging, at a cost (to the public fisc) of $1,272,537 (more than $15 million per year).

13) It bears noting that paratransit customers do not receive service by "elbowing their way onto a vehicle." Unlike the "crush load" standing room service that prevails on fixed route transportation during peak service hours in New York City, for each disabled customer, the paratransit operator must provide up to three seats: one seat for the disabled person, one seat for a personal care attendant ("PCA") (who rides free), if needed by the disabled person, and one seat for at least one guest. 49 C.F.R. 37.123(f). In 2001, in addition to trips for its ADA-eligible customers, NYCT provided 553,383 PCA trips and 139,824 guest trips. The requirement to provide service to this "hidden" and unpredictable passenger population makes it even more difficult to produce accurate projections of capacity needs.

14) The district court noted that the discussion in the Appendix to the regulations of a waiting list as a limit on the number of eligibles is preceded by the word "typically," and used that one word as the linchpin to adopt the plaintiffs' otherwise unsupported position that standby reservations policies are a type of prohibited waiting list. See JA at 25-26.

15) The district court notes that one can suspend persons who abuse the service. The court also adopted plaintiffs' unsupported argument that if more capacity were available, trips would not be scheduled so far in advance and then cancelled. JA at 22-23. First, the suspension provision does not apply to "early cancellations." 49 C.F.R. 37.125(h). Second, NYCT has instituted progressively stricter suspension policies for excessive late cancellations and no shows. They have not remedied the problem. Third, as service capacity has increased, and NYCT reduced its advance reservation time to no more than four days, early and late cancellations and no shows have continued to increase. See fn. 12, supra, at 17.

16) Webster's New Universal Unabridged Dictionary, Deluxe 2d ed. (1983).

17) Plaintiffs argue and the district court agreed, JA at 27-28, that the provider is "off the hook" when a denied trip occurs outside of his control. However, unbelievably, they do not consider customer demand as outside the operator's control. In this view, the operator simply needs to keep on hand an (unknowable) quantity of excess (standby) service. This is a utopian scenario, not public transit.

18) Subscription trips, a/k/a "standing order" trips, are trips that are regularly taken by an individual on the same days and hours of the week for the same origin and destination. Typically, these are trips to work, or college, or rehabilitation. This service is desirable to providers who can plan ahead and develop productive schedules for subscription trips; it also is desirable for customers, because they do not have to call every day to schedule their daily trips to work, etc.

Download these documents in word format

ANDERSON V ROCHESTER REGIONAL COVER PAGE.DOC

ANDERSON, ET AL. TOC OF AMICUS BRIEF.DOC

ANDERSON, ET AL TOA FOR AMICUS BRIEF.DOC

ANDERSON, ET AL. AMICUS BRIEF.DOC

Some of these pages may include links to documents in the Adobe PDF format. Please download the Adobe PDF reader if you have not already done so.