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38 action brought by the Attorney General.548 Thus, the pay money damages to a private plaintiff under Title USDOT could not require by regulation "that bus com- II."558 Thus, the court held that Metro Ride was not "li- panies pay `compensation' to disabled passengers when able for money damages under Title II of the ADA, even [the bus companies] fail to provide them with accessible though it may be bound by ADA requirements."559 service."549 Although a successful private plaintiff may recover E. Transit Cases Arising Under Title III reasonable attorney's fees,550 only injunctive relief is No cases were located involving Title III and private available under Title III to a private party.551 Further- transportation entities providing regular service to the more, some courts have held "that they lacked jurisdic- public that related to reduced service or increased tion to hear ADA Title III cases, because the plaintiffs' fares.560 There is one recent case involving a private individual instances of discrimination did not create transportation company that failed to provide a bus standing to seek injunctive relief."552 It may be noted with a wheelchair lift for customers with disabilities in that one commentator argues that the laws of 20 states which the company entered into a consent decree with and the District of Columbia "provide for reasonably the Justice Department.561 effective relief beyond what ADA Title III requires."553 One case has addressed the issue of whether a Title IX. DISCUSSION OF PRACTICES WHEN III private transit entity may be held liable under Title REDUCING SERVICE OR INCREASING FARES II of the ADA, discussed in Section VI, supra. In O'Connor v. Metro Ride, Inc.,554 the defendant Metro- As stated, 64 agencies (see Appendix B) responded to politan Council was the successor to the former Re- a survey conducted for the digest. Some of the agencies' gional Transit Board (RTB) and the former Metropoli- responses are discussed elsewhere in the digest.562 tan Transit Commission (MTC). Metro Ride was a Based on the agencies' survey responses, this part of "private, for profit company that was under contract the digest discusses what transit agencies' practices are with the RTB to provide Metro Mobility service, admin- with respect to Title VI and the ADA when transit 555 istered by the MTC." The plaintiffs' complaint alleged agencies have to reduce service or increase fares. Many that they were disabled and that they sustained inju- of the practices mentioned by agencies are covered, for ries in connection with their use of the Metro Mobility's example, in the 2007 FTA Title VI Circular or the paratransit van service.556 USDOT LEP Policy Guidance. The plaintiffs argued that Metro Ride, even though a private party, was also liable under Title II of the ADA A. Transit Agencies' Title VI Policies and thus subject to a claim for money damages not Thirty-two agencies stated that they had a policy for available under Title III. The plaintiffs argued that, dealing with Title VI issues that may be implicated by a because Metro Ride provided public transportation ser- reduction in transit service and/or an increase in fares, vices and was subject to the ADA, they stood "in the whereas the same number of agencies, 32, stated that 557 shoes of the public entities with which they contract." they do not. However, the court held that nothing under the regula- tions "provide[d] that a private entity may be liable to 548 Am. Bus. Ass'n v. Slater, 231 F.3d 1, 4, 343 U.S. App. D.C. 367 (D.C. Cir. 2000). 549 Id. at 3, 6. 550 Id. 12205. The statute provides: 558 In any action or administrative proceeding commenced pur- Id. at 899900 (footnote omitted). suant to this chapter, the court or agency, in its discretion, may 559 Id. at 899. allow the prevailing party, other than the United States, a rea- 560 sonable attorney's fee, including litigation expenses, and costs, In James, 1999 U.S. Dist. LEXIS 2565, at *20, the magis- and the United States shall be liable for the foregoing the same trate judge recommended that Peter Pan's motion for summary as a private individual. judgment be denied, because a "genuine issue of material fact 551 Id. 12188(a)(1), (2) (2009) and 2000a-3(a) (2009). See exists as to whether Peter Pan adequately maintained and James v. Peter Pan Transit Mgmt., Inc., 1999 U.S. Dist. LEXIS repaired its CAT Connector wheelchair lifts and adequately 2565, at *21 N 4 (E.D. N.C. 1999) (stating that the "[p]laintiff trained its employees to operate the lifts" in violation of Title may not recover money damages from Peter Pan on her ADA III of the ADA. 561 claim because money damages are not recoverable under title United States v. New Century Travel, Inc. (D.D.C. July III of the ADA," (citing 42 U.S.C. 12188)). 10, 2008) (consent decree available at http://www.ada.gov/ 552 Colker, supra note 518, at 377, 395 (citations omitted). newcentury.htm (Last visited Sept. 8, 2010)). 562 553 Id. at 406. See pts. I.E.4 (transit agencies' response to the 2007 FTA 554 Title VI Circular); pt. V.C (transit agencies' reported Title VI 87 F. Supp. 2d 894 (D. Minn. 2000). 555 complaints in the past 10 years caused by a reduction in ser- Id. at 895. vice or an increase in fares); pt. VI.E (transit agencies' reported 556 Id. ADA complaints in the past 10 years); and pt. VIII.C ( 13(c) 557 Id. at 899 (citing 49 C.F.R. 37.5(a), 37.21(a), and certifications and the transit agencies' responses to the survey 37.23(a)) (quotation marks omitted). regarding 13(c)).