Michigan Flyer LLC, et al v. Wayne County Airport Auth.
Filing
OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Danny J. Boggs, Eugene E. Siler, Jr. (AUTHORING), and Bernice Bouie Donald, Circuit Judges. [16-1205, 16-1255]
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHIGAN FLYER LLC; INDIAN TRAILS,
INCORPORATED,
Plaintiffs-Appellants/Cross-Appellees,
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v.
WAYNE COUNTY AIRPORT AUTHORITY,
Defendant-Appellee/Cross-Appellant.
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Nos. 16-1205/1255
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:15-cv-11512—David M. Lawson, District Judge.
Argued: January 26, 2017
Decided and Filed: June 22, 2017
Before: BOGGS, SILER, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED:
Jason M. Turkish, NYMAN TURKISH PC, Southfield, Michigan, for
Appellants/Cross-Appellees. Gary K. August, ZAUSMER, AUGUST & CALDWELL, P.C.,
Farmington Hills, Michigan, for Appellee/Cross-Appellant. ON BRIEF: Jason M. Turkish,
Ryan T. Kaiser, Melissa M. Nyman, NYMAN TURKISH PC, Southfield, Michigan, for
Appellants/Cross-Appellees. Gary K. August, ZAUSMER, AUGUST & CALDWELL, P.C.,
Farmington Hills, Michigan, for Appellee/Cross-Appellant.
_________________
OPINION
_________________
SILER, Circuit Judge.
transportation services.
Plaintiffs Michigan Flyer and Indian Trails provide public
Plaintiffs supported two disabled individuals’ lawsuits against
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Defendant Wayne County Airport Authority (“Airport”) because some of Plaintiffs’ customers
are disabled. Airport allegedly began retaliating against Plaintiffs for this support. Plaintiffs
sued under the provisions of Title V of the Americans with Disabilities Act (“ADA”). The
district court dismissed the lawsuit, denied reopening, and denied Airport’s claim for attorney’s
fees. We affirm the district court because it did not err in dismissing the action and did not abuse
its discretion in denying reopening or attorney’s fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
Michigan Flyer provides public transportation services to the Detroit Metro area. It also
provides services on behalf of the Ann Arbor Area Transportation Authority. Indian Trails is the
parent company of Michigan Flyer. In 2014, two disabled individuals sued Airport to prevent
Airport from moving the public transportation bus stop from the curbside at the terminal.
Michigan Flyer and Indian Trails (“Plaintiffs”) provided support to the disabled individuals in
the lawsuit. After the lawsuit settled, Plaintiffs allege that Airport retaliated against them for
their role in the lawsuit. Among the list of alleged conduct, Plaintiffs allege that Airport
extended preferential access to all other transportation providers.
Plaintiffs sued Airport for violation of the ADA Title V provisions. The district court
dismissed the lawsuit. Subsequently, the district court denied Plaintiffs’ motion to reopen the
case pursuant to Federal Rule of Civil Procedure 59 and Airport’s motion for attorney’s fees.
II. MOTION TO DISMISS
Plaintiffs brought suit for retaliation under 42 U.S.C. § 12203(a). The district court
dismissed the lawsuit holding that “individual,” as used in the statute, did not protect corporate
entities. Plaintiffs argue that the term “individual” should be interpreted broadly to protect it
from retaliatory actions because the ADA’s remedial scheme is broad, Supreme Court precedent
supports the finding that “individuals” can include corporations, and agency regulation supports
its broad interpretation of the term “individual.” Therefore, the question for our review is
whether the word “individuals” as found in 42 U.S.C. § 12203(a) includes corporate entities.
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a. STANDARD OF REVIEW
We review a district court’s order granting a motion to dismiss de novo. Lambert v.
Hartman, 517 F.3d 433, 438–39 (6th Cir. 2008).
b. TEXT/CONGRESSIONAL INTENT
Our review must begin with the plain language of the statute because the “language of the
statute is the starting point for interpretation, and it should also be the ending point if the plain
meaning of that language is clear.” United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000);
see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (“Statutory construction must
begin with the language employed by Congress and the assumption that the ordinary meaning of
that language accurately expresses the legislative purpose.” (citation omitted)).
42 U.S.C.
§ 12203(a) provides:
No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.
(emphasis added). As the ADA does not define “individual,” it should be interpreted by the
common usage of the word.
See Perrin v. United States, 444 U.S. 37, 42 (1979)
(“A fundamental canon of statutory construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common meaning.”).
The Supreme Court recently provided guidance on the ordinary meaning of the word
“individual” in Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012). The Court held that
“[t]he ordinary meaning of the word, fortified by its statutory context, persuades us that the
[Torture Victim Protection] Act authorizes suit against natural persons alone.” Id. at 1706. The
Court first noted that “‘individual’ ordinarily means ‘[a] human being, a person.’” Id. at 1707
(quoting 7 The Oxford English Dictionary 880 (2d ed. 1989)). It also noted that the term
“individual” is used in everyday parlance as denoting a human being, and the Court, itself,
“routinely uses ‘individual’ to denote a natural person, and in particular to distinguish between a
natural person and a corporation.” Id. Other courts faced with a similar task have also held that
“individual” does not include corporate entities. See Aziz v. Alcolac, Inc., 658 F.3d 388, 393 (4th
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Cir. 2011) (“In our view, then, when Congress uses the noun ‘individual’—rather than the
broader term ‘person’—it should ordinarily be construed to mean a human being or natural
person.”); Jonson v. C.I.R., 353 F.3d 1181, 1184 (10th Cir. 2003) (“When the word ‘individual’
is used elsewhere in the Internal Revenue Code, the context almost always compels it to be
construed to mean a human being.”); In re North, 12 F.3d 252, 254–55 (D.C. Cir. 1994) (per
curiam) (holding that the term individual in the Ethics in Government Act’s fee provisions is
limited to human beings); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay
Corp.), 920 F.2d 183, 184-85 (2d Cir. 1990) (holding that “individual” under the Bankruptcy
Code means “human beings” rather than “corporations and other legal entities”).
In response, Plaintiffs point to Mohamad’s recognition that “Congress remains free, as
always, to give the word a broader or different meaning.” 132 S. Ct. at 1707. Plaintiffs also
argue that Clinton v. City of New York, 524 U.S. 417 (1998), provides support that “individual”
can mean a non-human person.
In Clinton, the Court held that “Congress undoubtedly intended the word ‘individual’ to
be construed as synonymous with the word ‘person.’” Id. at 428. The same cannot be said for
the intent of Congress with the ADA. First, and most damaging to reliance on Clinton, is the fact
that the terms “person” and “individual” are both used in 42 U.S.C. § 12203(a): “No person shall
discriminate against any individual . . . .” (emphasis added). If Congress had “undoubtedly
intended” the word “individual” to mean “person,” it would have used the term “person” again
five words later.
Instead, Congress knowingly used two distinct terms, understanding the
difference that each term provides to the statute. Second, the “language and design” of the ADA
would not make sense if “individual” was to mean corporate entities. See Choice, 201 F.3d at
840. For example, the ADA uses “individuals” in the following manner: “individuals with
hearing impairments,” 42 U.S.C. § 12103(1)(A); an “individual’s uncorrected vision,” 42 U.S.C.
§ 12113(c); and “an individual [who] has an infectious or communicable disease,” 42 U.S.C.
§ 12113(e)(2). In each scenario, replacing “individual” with “corporate entity” would make the
statute incoherent and thus must be avoided. Brown v. Gardner, 513 U.S. 115, 118 (1994)
(“observing the interpretive presumption that a given term is used to mean the same thing
throughout a statute”).
This fact is compounded with the understanding that Congress
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appreciates the difference between the terms “person” and “individual.” “[F]ederal statutes
routinely distinguish between an ‘individual’ and an organizational entity.” Mohamad, 132 S.
Ct. at 1707. Title I of the ADA even instructs that the “term[] ‘person’ . . . shall have the same
meaning given . . . in section 2000e of this title.” 42 U.S.C. § 12111(7). Section 2000e(a) states:
“The term ‘person’ includes one or more individuals, governments, governmental agencies,
political
subdivisions,
labor
unions,
partnerships,
associations,
corporations,
legal
representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under title 11, or receivers.” Therefore, the term “individual” is
distinct from the term “corporation.”
c. ADA’S REMEDIAL SCHEME AND AGENCY INTERPRETATION
As a rebuttal to the unambiguous text,1 Plaintiffs argue that the remedial scheme of the
ADA requires the term “individual” to be interpreted as broadly as possible. See Summers v.
Altarum Inst., Corp., 740 F.3d 325, 330 (4th Cir. 2014) (“Congress also mandated that the ADA,
as amended, be interpreted as broadly as its text permits.”); Alexander v. Kujok, 158 F. Supp. 3d
1012, 1019 (E.D. Cal. 2016) (“[T]he ADA should be interpreted as broadly as permissible under
the Constitution.”). According to Plaintiffs, interpreting “individual” narrowly would result in
unfair treatment of corporations that defend the rights of disabled individuals.
This is unpersuasive. The fact that a statute has a broad remedial structure does not allow
us to interpret its text in a way that conflicts with its plain language. See Sandusky Wellness Ctr.,
LLC v. Medco Health Sols., Inc., 788 F.3d 218, 224 (6th Cir. 2015); see also Vander Boegh v.
EnergySolutions, Inc., 772 F.3d 1056, 1061 (6th Cir. 2014) (“[C]ourts should presume Congress
intended a term to have its settled, common-law definition ‘unless [the statute] clearly indicates
otherwise,’ even over the argument that a broad reading is necessary to ‘advance . . . [an act’s]
remedial purposes.’” (second and third alteration and omission in original) (quoting Nationwide
Mut. Ins. v. Darden, 503 U.S. 318, 325 (1992))). Furthermore, the remedial structure of the
1
Plaintiffs’ reliance on King v. Burwell is misguided because the term “individual” in this case is
unambiguous. 135 S. Ct. 2480, 2489–90 (2015) (“If we give the phrase ‘the State that established the Exchange’ its
most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges. But the Act clearly
contemplates that there will be qualified individuals on every Exchange.”). Instead, this case can be resolved
through the basic rule of statutory interpretation that started the King Court’s analysis, “If the statutory language is
plain, we must enforce it according to its terms.” Id.
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ADA has been limited in other contexts without undermining the remedial purpose. See, e.g.,
Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013) (no cognizable employment
discrimination claim under Title II); see also Moore v. Chavez, 36 F. App’x 169, 171 (6th Cir.
2002) (“Title II of the ADA does not provide for individual capacity suits against state
officials.”).
As a final effort to prove that the remedial scheme requires the broad interpretation of
“individual,” Plaintiffs rely on the Department of Justice’s (“DOJ”) regulation.
28 C.F.R.
§ 36.206(c)(4) lists prohibited conduct, including: “Retaliating against any person because that
person has participated in any investigation or action to enforce the Act . . . .” (emphases added).
According to Plaintiffs, the DOJ has corrected the ‘“inartful’ drafting of Title V” and provides
relief for corporate entities that are retaliated against.
This argument fails. First, “individual,” as used in the statute, is unambiguous; therefore
no deference is afforded to the DOJ’s interpretation. See Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997) (“Our inquiry must cease if the statutory language is unambiguous and the
statutory scheme is coherent and consistent.” (quoting United States v. Ron Pair Enters., Inc.,
489 U.S. 235, 240 (1989))). As we have clearly articulated, “[w]hen the statute is unambiguous,
there has been no delegation to the agency to interpret the statute and therefore the agency’s
interpretation deserves no consideration at all, much less deference.” Terrell v. United States,
564 F.3d 442, 450 (6th Cir. 2009).
Second, the fact that the regulation uses the term “person” in the illustration does not
support Plaintiffs’ argument that the term “individual” should be replaced entirely with “person.”
28 C.F.R. § 36.206(a) states:
No private or public entity shall discriminate against any individual because that
individual has opposed any act or practice made unlawful by this part, or because
that individual made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under the Act or this part.
This language mirrors completely the ADA’s language. If the DOJ was truly correcting “inartful
drafting,” it would not have included the term “individual” in its own regulation. See also 56
Fed. Reg. 35544, 35559,1991 WL 304374 (July 26, 1991) (“This section protects not only
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individuals who allege a violation of the Act or this part, but also any individuals who support or
assist them.”). Additionally, if the DOJ intended to change the ordinary meaning of “individual”
found in the statute, it would have made clear this intention in the regulation.
Accordingly, we hold that 42 U.S.C. § 12203(a)’s use of the term “individual” is
unambiguous and does not include corporations.
III. FEDERAL RULE OF CIVIL PROCEDURE 59 MOTION
After the trial court granted Airport’s motion to dismiss, Plaintiffs moved the court to
reopen the case and grant Plaintiffs leave to amend their complaint. Specifically, Plaintiffs
sought leave to amend the complaint in two respects. First, they wanted to add allegations to the
Title V claim alleging that Airport’s conduct was directed toward Oded Norkin, Vice President
of Michigan Flyer. Second, Plaintiffs also wanted to add an additional count under Title II of the
ADA. The district court denied this request on three grounds: (1) its own previous decision was
not an intervening change in controlling law; (2) the strategic decision not to request leave to
amend until after an adverse judgment was entered did not result in manifest injustice; and
(3) the proposed amendments were futile. We affirm the denial of Plaintiffs’ motion under Fed.
R. Civ. P. 59 because the district court did not abuse its discretion by finding that its decision
was not an intervening change in controlling law and that the Plaintiffs’ strategic decision not to
request leave until after an adverse judgment was entered did not result in manifest injustice.
a. STANDARD OF REVIEW
A party seeking leave to amend after an adverse judgment faces a heavier burden than for
a Rule 15 leave to amend motion prior to a final ruling. Leisure Caviar, LLC v. U.S. Fish &
Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010). A Rule 59 motion should only be granted if
there was (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice. Id. at 615.
“We review the denial of a Rule 59(e) motion for an abuse of discretion.” Ventas, Inc. v.
HCP, Inc., 647 F.3d 291, 328 (6th Cir. 2011). “A motion under Rule 59(e) is not an opportunity
to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
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(6th Cir. 1998). “If a permissive amendment policy applied after adverse judgments, plaintiffs
could use the court as a sounding board to discover holes in their arguments, then ‘reopen the
case by amending their complaint to take account of the court’s decision.’” Leisure Caviar,
616 F.3d at 616 (quoting James v. Watt, 716 F.2d 71, 78 (1st Cir. 1983)). “That would sidestep
the narrow grounds for obtaining post-judgment relief under Rules 59 and 60, make the finality
of judgments an interim concept and risk turning Rules 59 and 60 into nullities.” Id.
b. INTERVENING CHANGE/MANIFEST INJUSTICE
Plaintiffs first argue that the district court’s decision in this case constituted an
intervening change in controlling law. Under this theory, Plaintiffs believe Rule 59(e) relief is
warranted because the district court interpreted “individual” under the ADA for the first time.
This argument is unpersuasive. To accept this argument would essentially grant the
losing party in every matter of first impression the unlimited right for relief under Rule 59. This
would certainly “sidestep the narrow grounds for obtaining post-judgment relief under Rules 59
and 60, mak[ing] the finality of judgments an interim concept and risk turning Rules 59 and 60
into nullities.” Id.
In addition to the “intervening change in the controlling law” argument, Plaintiffs also
argue that denial of their Rule 59 motion resulted in manifest injustice. See GenCorp, Inc. v. Am.
Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (listing the four grounds for relief and
including both “an intervening change in controlling law” and “manifest injustice”).
This argument also fails. We have noted that “manifest injustice” does not occur when a
losing party attempts to “correct what has—in hindsight—turned out to be poor strategic
decision.” Id. Plaintiffs had numerous opportunities to seek leave to amend under Rule 15 to
add the new allegations and claim.2 Plaintiffs could have even sought leave after Airport filed its
motion to dismiss and laid out its position. At that time, Plaintiffs were well aware of arguments
2
Plaintiffs admit that this was a result of strategic decisions. Plaintiffs aver the Title II claim “was not
raised in the original complaint because the direct cause of action for Plaintiffs is the statutory tort created by the
Retaliation Provision of Title V. However, because the Court has ruled that a non-human entity cannot sustain a
cause of action for Retaliation, Plaintiffs must now turn to this regulation to remedy their injury.” Plaintiffs also
assert that it wanted to add the Norkin allegations so that “Defendant’s conduct was directed at a natural person” and
this would allow Plaintiffs to “overcome the Court’s holding that Title V only protects natural persons.”
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that “individual” may not include a corporate entity. Instead, strategically, Plaintiffs proceeded
with the case to the point that the district court dismissed their action. Now, Plaintiffs seek
reopening due to this poor strategic decision. However, if the district court would have granted
this motion, it ultimately would have participated in a situation where Plaintiffs “use[d] the court
as a sounding board to discover holes in their arguments, then ‘reopen[ed] the case by amending
their complaint to take account of the court’s decision.’” Leisure Caviar, 616 F.3d at 616
(citation omitted). Therefore, the district court did not abuse its discretion. Instead, it remained
committed to the finality of judgment and prevented Plaintiffs from sidestepping Rule 59. Id;
see also Moore v. Coffee Cty., 402 F. App’x 107, 109 (6th Cir. 2010) (holding that no abuse of
discretion exists when district court dismisses claims because plaintiff neglected to request
remand prior to judgment).
Morse v. McWhorter, 290 F.3d 795 (6th Cir. 2002), does not compel a different result. In
Morse, the magistrate judge in a report and recommendation (“R&R”) recommended that
defendant’s motion to dismiss be granted “without prejudice to re-file upon disclosing more
specific facts.” Id. at 798. The plaintiffs filed objections to the R&R, but also requested “leave
to re-plead, consistent with the recommendation of the Report . . . and Rule 15(a).” Id. After
reviewing the R&R, the district court dismissed the complaint with prejudice and subsequently
denied a motion under Rule 59(e). We then vacated and remanded the case to allow leave to
amend. Id. at 801.
Morse is distinguishable. First, the Morse plaintiffs requested leave to amend prior to the
dismissal of the action. Id. In this case, Airport was not “put . . . on notice that plaintiffs would
seek to amend their complaint” until after the judgment was entered. Id. at 801. Second, the
dismissal in Morse concerned factual allegations rather than legal issues, as are presented in this
case. Id. at 798. Third, the proposed amendments in Morse did not “substantially revise any
present defense strategy because the plaintiffs’ proposed second amended complaint does not
add new substantive claims or overhaul plaintiffs’ theory of the case, but merely attempts to
remedy the defects identified by the magistrate.” Id. at 801. In this case, however, Plaintiffs
proposed to add a new claim altogether: violation of ADA’s Title II.
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IV. MOTION FOR ATTORNEY’S FEES
After prevailing in the district court, Airport requested the district court to award
attorney’s fees. The district court denied the motion and Airport appeals. We affirm because the
district court did not abuse its discretion.
a. STANDARD OF REVIEW
Section 12205 allows the court “in its discretion” to award reasonable attorney’s fees to
the prevailing party. “[A] district court may in its discretion award attorney’s fees to a prevailing
defendant in a [civil rights] case upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith.”
Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412, 421 (1978).
The purpose of this heightened requirement is that it reduces the “chilling effect on a plaintiff
who seeks to enforce his/her civil rights.” Riddle v. Egensperger, 266 F.3d 542, 551 (6th Cir.
2001).
Airport argues that this heightened standard does not apply to this case because it
concerns a for-profit corporation. See Goldrich, Kest & Stern v. City of San Fernando, 617 F.
Supp. 557, 564–65 (C.D. Cal. 1985) (“[T]he chilling effects of an award of attorney’s fees to
prevailing defendants as against a corporate-type plaintiff is de minimus [sic].”).
b. ANALYSIS
We need not decide whether the heightened Christiansburg standard applies in all, some,
or no cases brought by a for-profit corporation. In this case, Plaintiffs brought an action that was
a matter of first impression with no Sixth Circuit precedent on point. Although Mohamad
existed, the Supreme Court also had decided Clinton. In addition, the DOJ’s illustration used
“person” instead of “individuals.” Therefore, it was clearly within the district court’s discretion
not to award attorney’s fees in this case because this litigation resulted in clarification of the law
not known to Plaintiffs.
AFFIRMED.
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