Case: 1:19-cv-06322 Document #: 74 Filed: 04/08/21 Page 1 of 6 PageID #:352
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`AMERICAN COUNCIL OF THE BLIND OF
`METROPOLITAN CHICAGO, ANN BRASH,
`MAUREEN HENEGHAN, and RAY
`CAMPBELL, on behalf of themselves and all
`others similarly situated,
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` Plaintiffs,
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` No. 19 C 6322
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` Judge Bucklo
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` v.
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`CITY OF CHICAGO,
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` Defendant.
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`UNITED STATES’ UNOPPOSED MOTION TO INTERVENE AS A PLAINTIFF
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`The United States of America moves, unopposed by the parties and pursuant to Fed. R. Civ.
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`P. 24, to intervene as a plaintiff, as of right or by permission, and in support states as follows:
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`1.
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`This civil rights action was brought by the American Council of The Blind of
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`Metropolitan Chicago (“ACBMC”) and three of its individual members, alleging that the City of
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`Chicago’s failure to implement accessible pedestrian signals—meaning signals that provide safe
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`crossing information for those who are blind or have low vision in the same way a “walk/don’t
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`walk” sign does to a sighted pedestrian—violates Title II of the Americans with Disabilities Act
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`(“Title II” and “ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act of
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`1973 (“Section 504”), 29 U.S.C. § 794. Plaintiffs seek injunctive and declaratory relief on behalf
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`of all persons with vision-related disabilities who use, or seek to use, pedestrian signals in Chicago.
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`Dkt. 15. Further, plaintiffs seek “the implementation of a remedial plan to make signalized
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`intersections across the City systemically accessible to blind pedestrians.” Dkt. 40 at 14.
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`2.
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`The plaintiffs also filed a complaint with the Department of Justice regarding their
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`allegations, which the government diligently investigated. The United States’ investigation
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`substantiated the plaintiffs’ allegations that Chicago violated Title II, Section 504, and their
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`implementing regulations by failing to provide pedestrians who are blind, deaf-blind, or have low
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`vision1 with accessible street-crossing signal information at over 99 percent of the city’s street
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`intersections currently equipped with visual-only pedestrian signal devices. The United States
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`notified the City of its determination on April 6, 2021. As a result, the United States seeks to file
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`a complaint in intervention, attached as Exhibit A, which seeks declaratory relief and an injunction
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`requiring defendant to provide individuals who are blind equal access to pedestrian signal safety
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`information, as well as compensatory damages in an appropriate amount for injuries, including
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`emotional distress, suffered as a result of Chicago’s failure to comply with Title II and Section
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`504.
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`3.
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`The United States seeks to intervene in this matter to ensure that Chicago complies
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`with Title II and Section 504 by providing individuals who are blind, deaf-blind, or have low vision
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`equal access to pedestrian signal safety information. The United States seeks intervention as of
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`right because it has a significantly protectable interest in the enforcement of Title II and
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`Section 504, which is not adequately represented by the existing parties and which may as a
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`practical matter be impaired if intervention is denied. Fed. R. Civ. P. 24(a)(2). Alternatively, the
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`United States asks the Court to exercise its discretion to allow permissive intervention, because its
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`claims against the defendant present questions of law and fact in common with the main action,
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`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.
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`and the main action involves the interpretation of statutes which the Attorney General is entrusted
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`by Congress to administer. Fed. R. Civ. P. 24(b)(1), (2).
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`4.
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`To intervene as of right, Rule 24(a)(2) states that, upon a timely motion, the Court
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`must permit anyone to intervene who “claims an interest relating to the property or transaction that
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`is the subject of the action, and is so situated that disposing of the action may as a practical matter
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`impair or impede the movant’s ability to protect its interest, unless existing parties adequately
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`represent that interest.”
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`5.
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`As an initial matter, the Court should find this motion timely. See Fed. R. Civ.
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`P. 24(a), (b). The Seventh Circuit looks at four factors to determine whether a motion is timely:
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`“(1) the length of time the intervenor knew or should have known of his interest in the case; (2) the
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`prejudice caused to the original parties by the delay; (3) the prejudice to the intervenor if the motion
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`is denied; (4) any other unusual circumstances.” Grochocinski v. Mayer Brown Rowe & Maw,
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`LLP, 719 F.3d 785, 797-98 (7th Cir. 2013) (internal quotation and citation omitted). Upon receipt
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`of the complaint by the plaintiffs, the government diligently investigated these allegations and now
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`moves to intervene to allege violations of Title II and Section 504 upon substantiating the
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`complaint allegations. There is no prejudice to the original parties, who were aware of and
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`participated in the United States’ investigation, and do not oppose intervention. Further, fact
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`discovery remains open and expert discovery has yet to begin. And as explained below, the United
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`States would be prejudiced if the motion were denied.
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`6.
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`The United States’ interest in the matter is significant. The Department of Justice
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`is the federal agency charged with enforcing the ADA and Section 504, and it issues the ADA’s
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`implementing regulations. See Fed. R. Civ. P. 24(a)(2). It has a substantial interest in the subject
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`matter of the pending litigation. Underlying the enactment of the ADA was Congress’s intent to
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`“provide a clear and comprehensive national mandate for the elimination of discrimination against
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`individuals with disabilities . . . .” 42 U.S.C. § 1210l(b)(l). Congress sought “clear, strong,
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`consistent, enforceable standards addressing discrimination against individuals with disabilities,”
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`42 U.S.C. § 12101(b)(2), and explicitly stated that one of the purposes of the ADA was “to ensure
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`that the Federal Government plays a central role in enforcing the standards established [in the Act]
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`on behalf of individuals with disabilities . . . .” 42 U.S.C. § 12101(b)(3).
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`7.
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`In this case, the United States’ interest is in enforcing the ADA and Section 504
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`and their implementing regulations in the context of the accessibility of pedestrian signals. The
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`private plaintiffs do not and cannot represent the United States’ views on the proper interpretation
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`and application of Title II, Section 504, and the relevant implementing regulations in this context.
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`Cf. Fed. R. Civ. P. 24(a)(2). Furthermore, if this case proceeds to a remedy phase (as the United
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`States expects it will), the United States’ participation will be important to assure that the remedial
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`plan for Chicago, a large municipality, comports with those interpretations. Conversely, if
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`intervention is denied and the United States is not a party to the process, the United States’ interests
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`and responsibilities will be impaired. Therefore, the Court should grant the United States
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`intervention as of right.
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`8.
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`Alternatively, the Court should exercise its discretion to permit the United States to
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`intervene as a plaintiff under Fed. R. Civ. P. 24(b)(1)(B) and/or (b)(2). Under Rule 24(b), the
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`Court may allow intervention, on a timely motion, by:
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`(1)(B) Anyone who “has a claim or defense that shares with the main action a
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`common question of law or fact.” Fed. R. Civ. P. 24(b)(l); and
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`(2) A governmental officer or agency “if a party’s claim or defense is based on:
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`(A) a statute or executive order administered by the officer or agency; or (B) any
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`regulation, order, requirement, or agreement issued or made under the statute or
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`executive order.” Fed. R. Civ. P. 24(b)(2).
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`9.
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`The United States satisfies Rule 24(b)(1)(B), because the proposed complaint in
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`intervention implicates several questions of fact and law that are not only common but identical to
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`those already in the case. Indeed, the most essential questions—whether and to what extent
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`Chicago has provided pedestrian signals for sighted pedestrians but failed to do so for pedestrians
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`who are blind, and whether that violates Title II and Section 504—are identical.
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`10.
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`The United States also satisfies Rule 24(b)(2), because the parties’ claims and
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`defenses entirely concern Title II and Section 504 and their implementing regulations, and the
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`Department of Justice is a federal agency that administers and enforces the ADA and Section 504,
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`and issues the ADA’s implementing regulations. See 42 U.S.C. § 12101(b)(3) (“the Federal
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`Government plays a central role in enforcing the [ADA’s] standards”); 42 U.S.C. § 12134(a)
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`(directing the Attorney General to promulgate ADA regulations); Executive Order 12250 (45
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`FR 72995) (delegating to the Attorney General leadership and coordination of Section 504
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`implementation and enforcement by Executive agencies); cf. Steward v. Abbott, 189 F. Supp.
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`3d 620, 626 (W.D. Tex. 2016) (the parties’ Title II and Section 504 claims and defenses were
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`based on “a statutory and regulatory regime that the Attorney General has been charged by
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`Congress with administering.”); see also Disability Advocates, Inc. v. Paterson, No. 03-cv-3209,
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`2009 WL 4506301, at *2 (E.D.N.Y. Nov. 23, 2009) (permitting intervention by the United States
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`under Rule 24(b)(2) in a Title II and Section 504 case).
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`11.
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`Having met those requirements, permissive intervention is in the case management
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`discretion of the Court. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 803 (7th
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`Cir. 2019). The Court must weigh “whether the intervention will unduly delay or prejudice the
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`adjudication of the original parties’ rights,” Fed. R. Civ. P. 24(b)(3), but otherwise does not place
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`any restraints on the Court’s discretion. As discussed above, the United States’ participation as
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`intervenor would neither unduly delay the proceedings nor prejudice the adjudication of the rights
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`of the original parties. On the contrary, the United States anticipates that its participation will
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`further the goal of appropriate remediation of the violations and efficient resolution of this matter.
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`Therefore, the Court should allow intervention here.
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`12.
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`Attorneys for the United States have consulted with counsel for all parties, and no
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`party opposes the United States’ intervention as plaintiff.
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`WHEREFORE, the United States should be allowed to intervene as a plaintiff in this case.
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`Respectfully submitted,
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`JOHN R. LAUSCH, JR.
`United States Attorney for the
`Northern District of Illinois
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`By:
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` 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
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`sarah.north@usdoj.gov
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`PAMELA S. KARLAN
`Principal Deputy Assistant Attorney General
`Civil Rights Division
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`REBECCA B. BOND
`Chief
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`KATHLEEN P. WOLFE
`Special Litigation Counsel
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`AMANDA MAISELS
`Deputy Chief
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`By:
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` 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
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