1st Circuit Discusses Split Re Whether Transition and Self-Regulation Plans Under the Title II of the ADA are Enforceable by a Private Right of Action

Per Iverson v. City of Boston, 452 F.3d 94 (1st Cir. June 30, 2006):

This case requires us to decide whether the self-evaluation and transition plan regulations promulgated by the Attorney General under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, are enforceable through a private right of action. Two of our sister circuits have divided over the appropriate answer to this thorny question. Compare Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir.2004) (holding that the transition plan regulation is not so enforceable), with Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir.2003) (holding that both the self-evaluation and transition plan regulations are enforceable in that manner). After careful consideration, we conclude that recent Supreme Court precedent dashes any hope that these regulations are so enforceable. We also conclude that the plaintiffs' other arguments are unavailing and, accordingly, affirm the district court's grant of summary judgment in the defendant's favor.

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It is beyond peradventure that, in certain aspects, Title II creates a private right of action against noncompliant public entities. See 42 U.S.C. § 12133; see also Lane, 541 U.S. at 517, 124 S.Ct. 1978. Here, however...the plaintiffs do not claim a direct violation of Title II; instead, they claim violations of, and concomitant rights to enforce, the self-evaluation and transition plan regulations...

An implementing regulation may under certain circumstances be enforced through the private right of action available under the organic statute that it implements. See Alexander v. Sandoval, 532 U.S. 275, 284- 85 (2001). Under Sandoval, however, a private plaintiff may not, merely by referencing the organic statute, enforce regulations that interdict a broader swath of conduct than the statute itself prohibits. After all, the power to create a private right of action, like the power to create positive federal law itself, lies exclusively with Congress. [T]he Sixth Circuit has held that the transition plan regulation is not enforceable through the instrumentality of Title II's private right of action. See Ability Ctr., 385 F.3d at 913-15. Although the development of a transition plan "may ultimately facilitate compliance with Title II," the court explained, "there is no indication that a public entity's failure to develop a transition plan [seriously] harms disabled individuals" or that a public entity cannot make its services, programs, or activities accessible to qualified disabled persons without first developing a transition plan. Id. at 914. In short, the transition plan regulation imposes an obligation beyond the statutory mandate and, therefore, is not privately enforceable. Id.

We embrace this reasoning...[and] reject the position of the Tenth Circuit, see Chaffin, 348 F.3d at 856-60.