`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`AMERICAN COUNCIL OF THE BLIND OF
`METROPOLITAN CHICAGO, ANN BRASH,
`MAUREEN HENEGHAN, and RAY
`CAMPBELL, on behalf of themselves and all
`others similarly situated,
`
` Plaintiffs,
`
`
`
`
`
`
`
`
` No. 19 C 6322
`
` Judge Bucklo
`
` v.
`
`
`CITY OF CHICAGO,
`
` Defendant.
`
`
`UNITED STATES’ UNOPPOSED MOTION TO INTERVENE AS A PLAINTIFF
`
`
`
`
`The United States of America moves, unopposed by the parties and pursuant to Fed. R. Civ.
`
`P. 24, to intervene as a plaintiff, as of right or by permission, and in support states as follows:
`
`1.
`
`This civil rights action was brought by the American Council of The Blind of
`
`Metropolitan Chicago (“ACBMC”) and three of its individual members, alleging that the City of
`
`Chicago’s failure to implement accessible pedestrian signals—meaning signals that provide safe
`
`crossing information for those who are blind or have low vision in the same way a “walk/don’t
`
`walk” sign does to a sighted pedestrian—violates Title II of the Americans with Disabilities Act
`
`(“Title II” and “ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act of
`
`1973 (“Section 504”), 29 U.S.C. § 794. Plaintiffs seek injunctive and declaratory relief on behalf
`
`of all persons with vision-related disabilities who use, or seek to use, pedestrian signals in Chicago.
`
`Dkt. 15. Further, plaintiffs seek “the implementation of a remedial plan to make signalized
`
`intersections across the City systemically accessible to blind pedestrians.” Dkt. 40 at 14.
`
`
`
`Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 2 of 6 PageID #:353
`
`2.
`
`The plaintiffs also filed a complaint with the Department of Justice regarding their
`
`allegations, which the government diligently investigated. The United States’ investigation
`
`substantiated the plaintiffs’ allegations that Chicago violated Title II, Section 504, and their
`
`implementing regulations by failing to provide pedestrians who are blind, deaf-blind, or have low
`
`vision1 with accessible street-crossing signal information at over 99 percent of the city’s street
`
`intersections currently equipped with visual-only pedestrian signal devices. The United States
`
`notified the City of its determination on April 6, 2021. As a result, the United States seeks to file
`
`a complaint in intervention, attached as Exhibit A, which seeks declaratory relief and an injunction
`
`requiring defendant to provide individuals who are blind equal access to pedestrian signal safety
`
`information, as well as compensatory damages in an appropriate amount for injuries, including
`
`emotional distress, suffered as a result of Chicago’s failure to comply with Title II and Section
`
`504.
`
`3.
`
`The United States seeks to intervene in this matter to ensure that Chicago complies
`
`with Title II and Section 504 by providing individuals who are blind, deaf-blind, or have low vision
`
`equal access to pedestrian signal safety information. The United States seeks intervention as of
`
`right because it has a significantly protectable interest in the enforcement of Title II and
`
`Section 504, which is not adequately represented by the existing parties and which may as a
`
`practical matter be impaired if intervention is denied. Fed. R. Civ. P. 24(a)(2). Alternatively, the
`
`United States asks the Court to exercise its discretion to allow permissive intervention, because its
`
`claims against the defendant present questions of law and fact in common with the main action,
`
`
`1 Hereinafter, the term “blind” is meant to encompass individuals who are entirely without sight,
`those who are legally blind or have low vision, and those who are “deaf-blind,” meaning that they
`have both little to no vision and little to no hearing.
`
`
`
`2
`
`
`
`Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 3 of 6 PageID #:354
`
`and the main action involves the interpretation of statutes which the Attorney General is entrusted
`
`by Congress to administer. Fed. R. Civ. P. 24(b)(1), (2).
`
`4.
`
`To intervene as of right, Rule 24(a)(2) states that, upon a timely motion, the Court
`
`must permit anyone to intervene who “claims an interest relating to the property or transaction that
`
`is the subject of the action, and is so situated that disposing of the action may as a practical matter
`
`impair or impede the movant’s ability to protect its interest, unless existing parties adequately
`
`represent that interest.”
`
`5.
`
`As an initial matter, the Court should find this motion timely. See Fed. R. Civ.
`
`P. 24(a), (b). The Seventh Circuit looks at four factors to determine whether a motion is timely:
`
`“(1) the length of time the intervenor knew or should have known of his interest in the case; (2) the
`
`prejudice caused to the original parties by the delay; (3) the prejudice to the intervenor if the motion
`
`is denied; (4) any other unusual circumstances.” Grochocinski v. Mayer Brown Rowe & Maw,
`
`LLP, 719 F.3d 785, 797-98 (7th Cir. 2013) (internal quotation and citation omitted). Upon receipt
`
`of the complaint by the plaintiffs, the government diligently investigated these allegations and now
`
`moves to intervene to allege violations of Title II and Section 504 upon substantiating the
`
`complaint allegations. There is no prejudice to the original parties, who were aware of and
`
`participated in the United States’ investigation, and do not oppose intervention. Further, fact
`
`discovery remains open and expert discovery has yet to begin. And as explained below, the United
`
`States would be prejudiced if the motion were denied.
`
`6.
`
`The United States’ interest in the matter is significant. The Department of Justice
`
`is the federal agency charged with enforcing the ADA and Section 504, and it issues the ADA’s
`
`implementing regulations. See Fed. R. Civ. P. 24(a)(2). It has a substantial interest in the subject
`
`matter of the pending litigation. Underlying the enactment of the ADA was Congress’s intent to
`
`
`
`3
`
`
`
`Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 4 of 6 PageID #:355
`
`“provide a clear and comprehensive national mandate for the elimination of discrimination against
`
`individuals with disabilities . . . .” 42 U.S.C. § 1210l(b)(l). Congress sought “clear, strong,
`
`consistent, enforceable standards addressing discrimination against individuals with disabilities,”
`
`42 U.S.C. § 12101(b)(2), and explicitly stated that one of the purposes of the ADA was “to ensure
`
`that the Federal Government plays a central role in enforcing the standards established [in the Act]
`
`on behalf of individuals with disabilities . . . .” 42 U.S.C. § 12101(b)(3).
`
`7.
`
`In this case, the United States’ interest is in enforcing the ADA and Section 504
`
`and their implementing regulations in the context of the accessibility of pedestrian signals. The
`
`private plaintiffs do not and cannot represent the United States’ views on the proper interpretation
`
`and application of Title II, Section 504, and the relevant implementing regulations in this context.
`
`Cf. Fed. R. Civ. P. 24(a)(2). Furthermore, if this case proceeds to a remedy phase (as the United
`
`States expects it will), the United States’ participation will be important to assure that the remedial
`
`plan for Chicago, a large municipality, comports with those interpretations. Conversely, if
`
`intervention is denied and the United States is not a party to the process, the United States’ interests
`
`and responsibilities will be impaired. Therefore, the Court should grant the United States
`
`intervention as of right.
`
`8.
`
`Alternatively, the Court should exercise its discretion to permit the United States to
`
`intervene as a plaintiff under Fed. R. Civ. P. 24(b)(1)(B) and/or (b)(2). Under Rule 24(b), the
`
`Court may allow intervention, on a timely motion, by:
`
`(1)(B) Anyone who “has a claim or defense that shares with the main action a
`
`common question of law or fact.” Fed. R. Civ. P. 24(b)(l); and
`
`(2) A governmental officer or agency “if a party’s claim or defense is based on:
`
`(A) a statute or executive order administered by the officer or agency; or (B) any
`
`
`
`4
`
`
`
`Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 5 of 6 PageID #:356
`
`regulation, order, requirement, or agreement issued or made under the statute or
`
`executive order.” Fed. R. Civ. P. 24(b)(2).
`
`9.
`
`The United States satisfies Rule 24(b)(1)(B), because the proposed complaint in
`
`intervention implicates several questions of fact and law that are not only common but identical to
`
`those already in the case. Indeed, the most essential questions—whether and to what extent
`
`Chicago has provided pedestrian signals for sighted pedestrians but failed to do so for pedestrians
`
`who are blind, and whether that violates Title II and Section 504—are identical.
`
`10.
`
`The United States also satisfies Rule 24(b)(2), because the parties’ claims and
`
`defenses entirely concern Title II and Section 504 and their implementing regulations, and the
`
`Department of Justice is a federal agency that administers and enforces the ADA and Section 504,
`
`and issues the ADA’s implementing regulations. See 42 U.S.C. § 12101(b)(3) (“the Federal
`
`Government plays a central role in enforcing the [ADA’s] standards”); 42 U.S.C. § 12134(a)
`
`(directing the Attorney General to promulgate ADA regulations); Executive Order 12250 (45
`
`FR 72995) (delegating to the Attorney General leadership and coordination of Section 504
`
`implementation and enforcement by Executive agencies); cf. Steward v. Abbott, 189 F. Supp.
`
`3d 620, 626 (W.D. Tex. 2016) (the parties’ Title II and Section 504 claims and defenses were
`
`based on “a statutory and regulatory regime that the Attorney General has been charged by
`
`Congress with administering.”); see also Disability Advocates, Inc. v. Paterson, No. 03-cv-3209,
`
`2009 WL 4506301, at *2 (E.D.N.Y. Nov. 23, 2009) (permitting intervention by the United States
`
`under Rule 24(b)(2) in a Title II and Section 504 case).
`
`11.
`
`Having met those requirements, permissive intervention is in the case management
`
`discretion of the Court. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 803 (7th
`
`Cir. 2019). The Court must weigh “whether the intervention will unduly delay or prejudice the
`
`
`
`5
`
`
`
`Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 6 of 6 PageID #:357
`
`adjudication of the original parties’ rights,” Fed. R. Civ. P. 24(b)(3), but otherwise does not place
`
`any restraints on the Court’s discretion. As discussed above, the United States’ participation as
`
`intervenor would neither unduly delay the proceedings nor prejudice the adjudication of the rights
`
`of the original parties. On the contrary, the United States anticipates that its participation will
`
`further the goal of appropriate remediation of the violations and efficient resolution of this matter.
`
`Therefore, the Court should allow intervention here.
`
`12.
`
`Attorneys for the United States have consulted with counsel for all parties, and no
`
`party opposes the United States’ intervention as plaintiff.
`
`WHEREFORE, the United States should be allowed to intervene as a plaintiff in this case.
`
`Respectfully submitted,
`
`JOHN R. LAUSCH, JR.
`United States Attorney for the
`Northern District of Illinois
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` s/Sarah J. North
`PATRICK JOHNSON
`SARAH J. NORTH
`Assistant United States Attorneys
`219 South Dearborn Street, 9th Floor
`Chicago, Illinois 60604
`Phone: (312) 353-5327
`Email: patrick.johnson2@usdoj.gov
`
`sarah.north@usdoj.gov
`
`PAMELA S. KARLAN
`Principal Deputy Assistant Attorney General
`Civil Rights Division
`
`REBECCA B. BOND
`Chief
`
`KATHLEEN P. WOLFE
`Special Litigation Counsel
`
`AMANDA MAISELS
`Deputy Chief
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
` s/Matthew Faiella
`MATTHEW FAIELLA
`Trial Attorney
`U.S. Department of Justice
`Civil Rights Division –
`Disability Rights Section
`950 Pennsylvania Avenue, N.W. –
`4CON 9.114
`Washington, D.C. 20530
`Phone: (202) 305-6829
`Email: matthew.faiella@usdoj.gov
`
`
`
`
`
`
`
`6
`
`