City of Los Angeles v. AECOM Services, et al

Filing

FILED OPINION (MILAN D. SMITH, JR., N. RANDY SMITH and GARY FEINERMAN) REVERSED AND REMANDED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [10407310]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, a municipal
corporation (acting by and through its
Department of Airports),
Third-Party-Plaintiff-Appellant,
v.

No. 15-56606
D.C. No.
2:13-cv-04057SJO-PJW

AECOM SERVICES, INC.; TUTOR PERINI
CORPORATION,
Third-Party-Defendants-Appellees,

OPINION

and
BCI COCA-COLA BOTTLING COMPANY
OF LOS ANGELES; JAROTH, INC.,
Third-Party-Defendants.

Appeal from the United States District Court
For the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted April 5, 2017
Pasadena, California
Filed April 24, 2017

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CITY OF LOS ANGELES V. AECOM

Before: MILAN D. SMITH, JR. and N.R. SMITH, Circuit
Judges, and GARY FEINERMAN, District Judge. *
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Disability Law / Preemption
The panel reversed the district court’s dismissal of thirdparty claims brought by the City of Los Angeles for breach
of contract and contribution against contractors that
allegedly breached their contractual duty to perform services
in compliance with federal disability regulations.
Two disabled individuals filed suit alleging that the
City’s FlyAway bus facility and service failed to meet
federal and state accessibility standards. The City filed a
third-party complaint alleging breach of contract by the
companies hired to design and construct the bus facility.
The panel held that Title II of the Americans with
Disabilities Act and § 504 of the Rehabilitation Act did not
preempt the City’s state-law claims. The panel held that
field preemption did not apply because the ADA expressly
disavows preemptive federal occupation of the disabilityrights field. Distinguishing a Fourth Circuit case, the panel
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
*

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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held that conflict preemption also did not preclude the City’s
claims. The panel disagreed with the district court’s
conclusion that the states have not traditionally occupied the
field of anti-discrimination law, and so the general
presumption against preemption did not apply. Applying the
presumption, the panel concluded that Congress did not
indicate a clear and manifest purpose to preempt claims for
state-law indemnification or contribution filed by a public
entity against a contractor. The panel remanded the case for
further proceedings.
COUNSEL
Timothy T. Coates (argued) and Edward L. Xanders,
Greines Martin Stein & Richland LLP, Los Angeles,
California; Kevin Gilbert, Lozano Smith, Walnut Creek,
California; Kerrin Tso, Los Angeles City Attorney’s Office,
Los Angeles, California; for Third-Party-PlaintiffAppellant.
Robert Nida (argued), Edward Wei, and Nomi L. Castle,
Castle & Associates APLC, Beverly Hills, California, for
Third-Party-Defendant-Appellee Tutor Perini Corporation.
Noel Eugene Macaulay (argued) and Steven H. Schwartz,
Schwartz & Janzen LLP, Los Angeles, California, for ThirdParty-Defendant-Appellee AECOM Services, Inc.
Christine Van Aken, Chief of Appellate Litigation; Dennis
J. Herrera, City Attorney; City Attorney’s Office, San
Francisco, California; for Amici Curiae League of California
Cities and California Association of Joint Powers
Authorities.

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OPINION

M. SMITH, Circuit Judge:
This appeal presents a single legal question that has not
yet been addressed by our court: Do Title II of the Americans
with Disabilities Act (ADA) and Section 504 of the
Rehabilitation Act of 1973 (§ 504) preempt a city’s state-law
claims for breach of contract and de facto contribution
against contractors who breach their contractual duty to
perform services in compliance with federal disability
regulations? For the reasons set forth in this opinion, we
hold that neither Title II nor § 504 preempts such claims.
FACTUAL AND PROCEDURAL BACKGROUND
Two disabled individuals filed suit against Appellant
City of Los Angeles (the City), alleging that the City’s
FlyAway bus facility and service—a bus system that
provides transportation between Los Angeles International
Airport and various locations—failed to meet the
accessibility standards set forth in Title II of the ADA,
42 U.S.C. §§ 12131 et seq.; § 504 of the Rehabilitation Act,
29 U.S.C. §§ 701 et seq.; and various California statutes.
The complaint specifically alleged that the FlyAway bus
facility in Van Nuys, California, had been constructed in
such a manner that it was inaccessible by disabled
individuals. Plaintiffs sought damages, attorneys’ fees, and
an injunction requiring the City to modify its Van Nuys
FlyAway facility so that it would become compliant with
state and federal disability access standards.
The City subsequently filed a third-party complaint
against Appellees AECOM Services, Inc. (AECOM) and

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Tutor Perini Corporation (Tutor). 1 The City’s third-party
complaint alleged that pursuant to the contract entered into
by the City and the company hired to design and construct
the Van Nuys FlyAway facility (which was AECOM’s
predecessor-in-interest), AECOM was obligated “to defend,
indemnify, and hold harmless the City against all suits,
claims, losses, demands, and expenses to the extent that any
such claim results from the negligent and/or intentional
wrongful acts or omissions of [AECOM], its subcontractors,
officers, agents, servants, [or] employees.” (emphasis
added). The complaint also tracked the language of the
contract, pursuant to which AECOM’s predecessor-ininterest agreed
to defend, indemnify and hold City . . .
harmless from and against all suits and causes
of action, claims, losses, demands and
expenses . . . to the extent that any claim for
personal injury and/or for property damage
results from the negligent and/or the
intentional wrongful acts or omissions of
Consultant, its subcontractors of any tier, and
its or their officers, agents, servants, or
employees, successors or assigns.
(emphasis added).
The City further alleged that Tutor, the successor-ininterest to another company retained by the City to construct
the Van Nuys FlyAway facility, was contractually obligated
“to defend, indemnify, and hold harmless the City against all
costs, liability, damage or expense . . . sustained as a
The City also named two other companies as third-party
defendants, but neither of those entities is a party to this appeal.
1

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proximate result of the acts or omissions of [Tutor] or
relating to acts or events pertaining to, or arising out of, the
contract.” The contract between the City and Tutor’s
predecessor-in-interest also required that the contractor, in
performing its contractual obligations, “comply with all
applicable present and/or future local, . . . State and Federal
Laws, statutes, ordinances, rules, regulations, restrictions
and/or orders, including . . . the Americans with Disabilities
Act of 1990,” and stated that “Contractor shall be solely
responsible for any and all damages caused, and/or penalties
levied, as the result of Contractor’s noncompliance with
such enactments.” The contract also stated that
[e]xcept for the City’s sole negligence or
willful misconduct, Contractor expressly
agrees to . . . defend, indemnify, keep and
hold City . . . harmless from any and all costs,
liability, damage or expense . . . sustained as
a proximate result of the acts or omissions of
Contractor,
its
agents,
servants,
subcontractors, employees or invitees; or []
relating to acts or events pertaining to, or
arising from or out of, this Contract.
Based on the foregoing contractual provisions between
the City and Appellees’ respective predecessors-in-interest,
the City’s third-party complaint against Appellees sought
damages for breach of contract, express contractual
indemnity, and declaratory relief establishing Appellees’
obligations to defend and indemnify the City.
Tutor moved to dismiss the City’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6), on the theory that
Title II and § 504 preempt the City’s claims for
indemnification. The district court granted Tutor’s motion

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to dismiss on preemption grounds. The district court also
denied the City’s request for leave to amend its complaint,
because it believed that any potential amendment would be
futile. The City and AECOM then stipulated that the district
court could rule on the viability of the City’s claims against
AECOM on the same basis as it did on Tutor’s motion to
dismiss because AECOM had asserted an identical
preemption defense.
The district court subsequently
dismissed the City’s claims against AECOM in an order
substantively identical to the order previously issued in
regard to Tutor’s motion to dismiss. The City now appeals
the district court’s dismissal of its third-party claims against
Appellees.
JURISDICTION AND STANDARD OF REVIEW
The district court entered a final judgment as to all
parties in this appeal on October 8, 2015. We have
jurisdiction over final judgments of the district court
pursuant to 28 U.S.C. § 1291. We review de novo a district
court’s dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). In re Apple iPhone
Antitrust Litig., 846 F.3d 313, 317 (9th Cir. 2017). We
similarly review de novo questions of preemption under the
Supremacy Clause. Kroske v. U.S. Bank Corp., 432 F.3d
976, 980 (9th Cir. 2005).
ANALYSIS
I. The Americans with Disabilities Act and the
Rehabilitation Act of 1973
Title II of the ADA states that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be

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subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. This echoes § 504 of the Rehabilitation Act, which
states that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a).
Title II “extends the anti-discrimination
prohibition embodied in section 504 [of the Rehabilitation
Act of 1973] to all actions of state and local governments,”
H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990
U.S.C.C.A.N. 303, 367, and should be read “broadly in order
to effectively implement the ADA’s fundamental purpose of
providing a clear and comprehensive national mandate for
the elimination of discrimination against individuals with
disabilities.” Hason v. Med. Bd. of Cal., 279 F.3d 1167,
1172 (9th Cir. 2002) (internal quotation marks and alteration
omitted). In the context of claims brought under Title II,
“the ADA’s broad language brings within its scope anything
a public entity does.” Lee v. City of Los Angeles, 250 F.3d
668, 691 (9th Cir. 2001) (internal quotation marks omitted).
II. Federal Preemption of State Law
The Supremacy Clause of the United States Constitution
provides that the “Constitution, and the Laws of the United
States which shall be made in Pursuance thereof . . . shall be
the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2. The Supreme Court has set forth two
principles to guide courts in applying the federal preemption
principle embodied in this constitutional provision. First,
“the purpose of Congress is the ultimate touchstone in every
pre-emption case.” Medtronic, Inc. v. Lohr, 518 U.S. 470,

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485 (1996) (internal quotation marks and alteration omitted).
Second, “[i]n all pre-emption cases, and particularly in those
in which Congress has legislated in a field which the States
have traditionally occupied, we start with the assumption
that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Id. (internal quotation
marks and ellipsis omitted); see also Wyeth v. Levine,
555 U.S. 555, 565 (2009).
We have recognized three ways in which a federal law
may preempt state legislation:
First, Congress may preempt state law by so
stating in express terms. Second, preemption
may be inferred when federal regulation in a
particular field is so pervasive as to make
reasonable the inference that Congress left no
room for the States to supplement it. In such
cases of field preemption, the mere volume
and complexity of federal regulations
demonstrate an implicit congressional intent
to displace all state law. Third, preemption
may be implied when state law actually
conflicts with federal law. Such a conflict
arises when compliance with both federal and
state regulations is a physical impossibility,
or when state law stands as an obstacle to the
accomplishment and execution of the full
purposes and objectives of Congress.
Bank of Am. v. City & Cty. of S.F., 309 F.3d 551, 558 (9th
Cir. 2002), as amended on denial of reh’g and reh’g en banc
(Dec. 20, 2002) (internal quotation marks and citations
omitted).

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The Supreme Court has stated, in the context of banking
regulations, that the general presumption against preemption
“is not triggered when the State regulates in an area where
there has been a history of significant federal presence.”
United States v. Locke, 529 U.S. 89, 108 (2000). Taken in
isolation, this language might suggest that any time the
federal government has historically regulated in a given area,
the typical presumption against preemption does not apply.
However, the Court, in Wyeth v. Levine, 555 U.S. 555
(2009), somewhat cabined its language from Locke by
further explaining the role of historic federal regulation in
conducting a preemption analysis:
Wyeth argues that the presumption against
pre-emption should not apply to this case
because the Federal Government has
regulated drug labeling for more than a
century. That argument misunderstands the
principle: We rely on the presumption
because respect for the States as
“independent sovereigns in our federal
system” leads us to assume that “Congress
does not cavalierly pre-empt state-law causes
of action.” Lohr, 518 U.S. at 485 . . . . The
presumption thus accounts for the historic
presence of state law but does not rely on the
absence of federal regulation.
Id. at 565 n.3 (emphasis added). Locke’s assertion that the
presumption against preemption will not apply “where there
has been a history of significant federal presence” must
therefore be considered in conjunction with the specific
circumstances attendant to banking regulations, and
particularly the fact that in Locke, a state had “enacted
legislation in an area where the federal interest has been

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manifest since the beginning of our Republic.” Locke,
529 U.S. at 99. The Supreme Court found a wholly different
situation in Wyeth, and, although Congress had enacted a
“significant public health law” as early as 1906, the Court
nevertheless recognized public health and safety as a realm
in which the presumption applies. 555 U.S. at 565–66, 565
n.3.
III.

Neither Title II nor Section 504 Preempts StateLaw Claims for Contribution

Neither Title II nor § 504 contains a statement of express
preemption, and no party in this appeal contends otherwise.
The district court’s opinion suggests, however, that field
preemption applies to preclude Appellant’s claims. We
disagree. Field preemption occurs “where the scheme of
federal regulation is sufficiently comprehensive to make
reasonable the inference that Congress left no room for
supplementary state regulation,” or “where the field is one
in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state
laws on the same subject.” Hillsborough Cty. v. Automated
Med. Labs., Inc., 471 U.S. 707, 713 (1985) (internal
quotation marks omitted). Title II specifically states that
“[n]othing in this chapter shall be construed to invalidate or
limit the remedies, rights, and procedures of . . . any State or
political subdivision of any State or jurisdiction that provides
greater or equal protection for the rights of individuals with
disabilities than are afforded by this chapter.” 42 U.S.C.
§ 12201(b). In other words, the ADA expressly disavows
preemptive federal occupation of the disability-rights field.
Nevertheless, we may affirm on any basis finding
support in the record, and Appellees contend—as they did
before the district court—that conflict preemption precludes
the City’s claims. Appellees’ argument rests largely upon

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the Fourth Circuit Court of Appeals’ decision in Equal
Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th
Cir. 2010). That case concerned a housing developer that
filed crossclaims for implied and express contractual
indemnification against the architect of its properties,
seeking damages stemming from those properties’ failure to
comply with, inter alia, the ADA’s disability accessibility
requirements. See id. at 599. The Fourth Circuit held that
the ADA preempted the developer’s claim for
indemnification, and further concluded that granting the
developer leave to amend to include a claim for contribution
would be futile, because any contribution claim would be a
de facto indemnification claim, and thus similarly
preempted. Id. at 602.
The Equal Rights Center court found that obstacle
preemption, which is a subset of conflict preemption, applied
to the claims there at issue. Id. at 601–02. It explained that
the purpose of the ADA is “regulatory rather than
compensatory,” and that therefore “denying indemnification
encourages the reasonable care required by the [federal
statute].” Id. It further emphasized the nondelegable nature
of responsibility under the ADA, pursuant to which “an
owner cannot insulate himself from liability for
discrimination in regard to living premises owned by him
and managed for his benefit merely by relinquishing the
responsibility for preventing such discrimination to another
party.” Id. at 602 (internal quotation marks and ellipsis
omitted).
As an initial matter, the factual circumstances of Equal
Rights Center materially differ from those in this appeal.
Most importantly, the Equal Rights Center court emphasized
that the developer “sought to allocate the full risk of loss to
[the architect] for the apartment buildings at issue,” and

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determined that “[a]llowing an owner to completely insulate
itself [in that manner] from liability for an ADA or FHA
violation through contract [would] diminish[] its incentive to
ensure compliance with discrimination laws.” Id. (emphases
added).
Here, by contrast, the relevant contractual
provisions assign liability to Appellees only to the extent that
their own actions give rise to liability. Thus, the Equal
Rights Center court’s concern with permitting a responsible
party to completely insulate itself from Title II liability is not
in play here.
On the contrary, under the present
circumstances, the greater concern is the potential for
contractors to shield themselves from any liability they
caused under both state contract law and federal disability
regulations if Title II and § 504 are found to preempt
Appellant’s claims. 2
Furthermore, while the developer in Equal Rights Center
sought leave to amend to add a claim for contribution, the
Fourth Circuit affirmed the district court’s denial on the
ground that the developer “really [sought] to have [the
architect] pay all damages,” and that any such claim would
therefore be a “de facto claim for indemnification.” 602 F.3d
at 602, 604. Because the so-called contribution claim really
constituted a claim for indemnification, the court declined to

We acknowledge that were we to find state-law contribution claims
preempted, future plaintiffs could still elect to bring suit directly against
the contracting parties. We also acknowledge, however, that as a
practical matter, it will often be the public-facing municipal entity that
provides the most attractive target for litigation. That is precisely what
happened here.
2

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reach the question of whether a genuine state-law claim for
contribution would be preempted. See id. at 604 n.2. 3
Appellees also cite Independent Living Center v. City of
Los Angeles, 973 F. Supp. 2d 1139 (C.D. Cal. 2013) in
support of their preemption argument. That district court
case concerned a suit for Title II and § 504 liability against
the City of Los Angeles, and various owners of residential
properties in the City of Los Angeles that received federal
funds from or through the City, for having engaged in a
“‘pattern or practice’ of discrimination against people with
disabilities in violation of federal and state antidiscrimination laws.” Id. at 1142. The City crossclaimed
for express and implied contribution or indemnity against the
property owners. Id. at 1143. The property owners moved
to dismiss the City’s crossclaims. Id. The district court
found that no cause of action for implied contribution or
indemnification exists under Title II or § 504. Id. at 1154,
1156. The district court also determined that state-law
indemnity and contribution claims posed an obstacle to the
full implementation of Title II and § 504, and that they were
accordingly preempted. Id. at 1160. It reasoned “that
3
Notably, in Baker, Watts & Co. v. Miles & Stockbridge, 876 F.2d
1101 (4th Cir. 1989), a case upon which the Equal Rights Center court
relied heavily for its preemption analysis, the Fourth Circuit held that
federal securities law preempted claims for indemnification, but that it
did not similarly preempt claims for contribution. Id. at 1108.

In the present case, we do not view the labels of “indemnification”
or “contribution” as dispositive of the analysis. Here, though the City
may seek “indemnification” for a contractor’s wrong-doing, that
compensation only constitutes a portion of the City’s total liability under
federal disability statutes. In other words, the relief sought may be
complete indemnification from the perspective of the contractor’s
liability; but it constitutes only partial contribution from the perspective
of the City’s liability exposure.

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congressional objectives are best served when parties with
duties under the antidiscrimination statutes remain
independently responsible for compliance,” and held that
“allowing public entities regulated by Section 504 and Title
II to seek indemnification or contribution through state law
to offset their liability would interfere with the methods by
which the federal statutes were designed to reach their goal.”
Id. (internal alterations and quotation marks omitted). The
court further held that the City’s contractual indemnity
crossclaim derived from the first-party claims under the
ADA and FHA, citing Equal Rights Center for the
proposition that such claims present an impermissible
attempt to contract around the nondelegable nature of a
party’s duties under the ADA and FHA, and that permitting
those claims would therefore undermine federal law. Id. at
1161. The Independent Living Center court rested its
analysis regarding contract claim preemption wholly on
Equal Rights Center, and did not discuss any difference
between claims seeking contractual contribution, and those
seeking indemnity. Id. We are, of course, not bound in any
way by Independent Living Center, but we address its
reasoning in this opinion as part of our analysis.
The district court in this case declined to address two
aspects of Independent Living Center that cabin its
persuasive effect on the present appeal. First, as the
Independent Living Center court emphasized, the first-party
plaintiffs in that matter alleged that the City had “failed . . .
to maintain policies, practices, or procedures to ensure that
accessible housing units [were] made available and [were]
meaningfully accessible to people with disabilities,” and that
they additionally “failed to monitor compliance with the
Rehabilitation Act accessibility requirements.” Id. at 1144–
45 (internal quotation marks omitted, emphases added). The
court expressly found that “the main focus of [the] lawsuit

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[was] the legality of the overall housing program,” and that
“Plaintiffs did not file this case because a particular building
violated provisions under the various statutes.” Id. at 1148
(internal alterations omitted). Rather, the plaintiffs sought
redress for a programmatic failure on the part of the City to
maintain adequate policies and oversight under the relevant
federal statutes. See id. at 1148–49.
That factual circumstance stands in stark contrast to the
situation presented by this appeal. Cities implement policies
and procedures as part of their standard operation. Were
courts to permit a city to contract away its liability to
implement policies and procedures that comply with federal
disability regulations, they would indeed be permitting
delegation of an entity’s duties under the ADA. Here,
however, the City does not seek indemnification or
contribution for damages arising out of its own failure to
implement policies or exercise oversight. Rather, it seeks
redress for specific construction and design failures related
to the FlyAway bus service. Cities usually have no choice
but to contract out design and construction of public
facilities because they do not have the expertise, personnel,
or equipment necessary to construct public projects. They
delegate that task by necessity. Accordingly, an important
component in a city’s doing all it can to fulfill its duties
under Title II and § 504 is to require as part of its contracts
with necessary third party entities that the requirements of
those statutes be met. 4 Permitting enforcement of contract
In considering the actions for which Title II intends to impose
liability on a public entity, we have previously framed the question in
terms of the “outputs” of a public entity:
4

Consider, for example, how a Parks Department would
answer the question, “What are the services, programs,

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claims seeking to hold a contractor liable for duties
necessarily delegated to it does not raise the specter of
entirely insulating public entities from ongoing Title II or
§ 504 liability posed by offloading all the city’s
responsibilities under those laws.
Second, although it found that conflict preemption
precluded the City’s claims for both contribution and
indemnification, the Independent Living Center court relies
almost entirely on Equal Rights Center—a case that
and activities of the Parks Department?” It might
answer, “We operate a swimming pool; we lead nature
walks; we maintain playgrounds.” It would not
answer, “We buy lawnmowers and hire people to
operate them.” The latter is a means to deliver the
services, programs, and activities of the hypothetical
Parks Department, but it is not itself a service,
program, or activity of the Parks Department.
Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999)
(emphases added). In line with this analysis, the Zimmerman court found
that the defendant Parks Department was not liable under Title II for
employment discrimination, because employment is not a “service,
program, or activity” of a public entity within the meaning of Title II,
which relates to public services. Id.; see also Barden v. City of
Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (framing analysis of
the scope of Title II as asking whether a given activity constitutes “a
normal function of a governmental entity”).
Though Zimmerman was not a preemption case, its analysis is
instructive insofar as it considered Congress’ intention for the scope of
actions falling under Title II. Preemption analysis focuses, first and
foremost, on congressional intent. See Hughes v. Talen Energy Mktg.,
LLC, 136 S. Ct. 1288, 1297 (2016). If one frames the scope of Title II
as encompassing a public entity’s outputs, this supports the notion that
Congress did not intend to preempt claims for liability arising from tasks
that a City does not—and in many cases simply cannot—do itself, but
must instead contract with others to provide the service.

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expressly declined to address whether conflict preemption
would apply to claims for contribution, as opposed to those
for indemnification. See Indep. Living Ctr., 973 F. Supp. 2d
at 1160–61. Independent Living Center expresses a clear
concern regarding attempts to shift a responsible party’s
liability under federal disability statutes to another party, and
accordingly explains how permitting express contractual
indemnification claims poses an obstacle to the regulatory
purpose of the ADA. It does not, however, explain how
permitting claims for contribution commensurate with a
third-party’s own wrongdoing would pose a similar obstacle.
As discussed supra, analysis under the Supremacy
Clause begins with a presumption against preemption,
“unless [preemption] was the clear and manifest purpose of
Congress.” Medtronic, 518 U.S. at 485. The Independent
Living Center court held that “the presumption against
preemption is inapplicable [to the ADA], because the states
have not traditionally occupied the field of antidiscrimination law.” 973 F. Supp. 2d at 1157. We disagree
with this characterization of the historical legal landscape,
and we believe the district court erred in concluding that the
presumption against preemption is inapplicable to claims
brought under Title II of the ADA.
In Federation of African American Contractors v. City
of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996), we observed
that “[p]rivate causes of action against state actors who
impair federal civil rights have not been traditionally
relegated to state law.” However, the mere co-existence of
state and federal causes of action does not support a rejection
of the presumption. See Wyeth, 555 U.S. at 565 n.3.
Similarly, the fact that “Congress enacted Title II against a
backdrop of pervasive unequal treatment in the
administration of state services and programs,” and that its

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“enactment of the ADA represents its judgment that there
should be a comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities,” 973 F. Supp. 2d at 1158, does not render the
presumption against preemption inapplicable. As the
Supreme Court has explained, the presumption is rooted in
federalism concerns. See, e.g., Jones v. Rath Packing Co.,
430 U.S. 519, 525 (1977); see also Wyeth, 555 U.S. at 565
n.3; id. at 583–87 (Thomas, J., concurring in the judgment).
The relevant question is whether a given area is one in which
states have historically had the power to regulate, not
whether states have previously regulated in the precise
manner or to the degree that the federal government has itself
chosen to regulate. See Wyeth, 555 U.S. at 565, 565 n.3.
Indeed, if state and federal regulatory choices perfectly
aligned, there would be no cause for federal legislation at all.
Conversely, if the presumption against preemption failed to
apply anytime federal regulations add something to state
legislation, the presumption would be a nullity.
States have historically regulated in the area of civil
rights generally, and in the field of discrimination against
disabled individuals specifically. See, e.g., Bd. of Trustees
of Univ. of Ala. v. Garrett, 531 U.S. 365, 368 n.5 (2001) (“It
is worth noting that by the time that Congress enacted the
ADA in 1990, every State in the Union had enacted such
measures [against disability discrimination].”); see also
Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 33 (1948)
(noting that “many states” had at that time enacted civil
rights statutes); Rodriguez v. Barrita, Inc., 10 F. Supp. 3d
1062, 1073 (N.D. Cal. 2014) (“Long before Congress passed
the ADA, California enacted several statutes to prohibit
disability discrimination at the state level.”). We therefore
apply the presumption against preemption, and, accordingly,
will find preemption only if Congress indicated a “clear and

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manifest purpose” to that effect. Nation v. City of Glendale,
804 F.3d 1292, 1298 (9th Cir. 2015).
Obstacle preemption applies when a given “state law[]
stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
“What is a sufficient obstacle is a matter of judgment, to be
informed by examining the federal statute as a whole and
identifying its purpose and intended effects.”
Id.
Accordingly, whether claims for express contractual
indemnification or contribution conflict with Title II and
§ 504 requires consideration of those statutes’ animating
purposes and intended consequences.
Congress expressly set forth the purpose of Title II as “to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities” through “clear, strong, consistent, enforceable
standards addressing discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1)–(2). We have noted
that “[t]here is no significant difference in analysis of the
rights and obligations created by the ADA and the
Rehabilitation Act.” Zukle v. Regents of Univ. of Cal.,
166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (listing cases); see
also Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d
976, 978 (9th Cir. 1997) (“Title II of the ADA was expressly
modeled after Section 504 of the Rehabilitation Act.”).
Nothing in Title II or § 504 addresses claims for statelaw indemnification or contribution filed by a public entity
against a contractor. In Equal Rights Center, the Fourth
Circuit drew on its reasoning in Baker, Watts & Co. v. Miles
& Stockbridge, 876 F.2d 1101 (4th Cir. 1989), to

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nevertheless find contractual indemnification precluded. It
explained that
In holding the indemnification claim [in
Baker, Watts & Co.] preempted, we analyzed
whether the claim represented an obstacle to
the regulatory goals of the federal law. We
explained that “Congress ha[d] not provided
a right to indemnification in the federal
securities laws under any circumstances.”
Furthermore, we emphasized the total nature
of a claim for indemnity, concluding that “it
would run counter to the basic policy of the
federal securities laws to allow a securities
wrongdoer . . . to shift its entire responsibility
for federal violations on the basis of a
collateral state action for indemnification.”
As we explained, “[t]he goal of the 1933 and
1934 Acts is preventive as well as remedial,
and ‘denying indemnification encourages the
reasonable care required by the federal
securities provisions.’”
Equal Rights Ctr., 602 F.3d at 601 (internal citations
omitted). To the extent that this analysis relies on
congressional omission of a federal cause of action for
indemnification, it turns the presumption against preemption
on its head. The basic premise of the presumption is that
absent an affirmative indication to the contrary, a federal
regulation will not preempt state law. The failure to provide
a federal analogue to a state-law cause of action does not
meet this standard.
Any concern that a public entity will be able to contract
out of Title II or § 504 compliance makes sense in the

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context of indemnification for an entity’s failure to maintain
appropriate policies and practices—in other words, for its
failure to take action solely within its control, as was
arguably the case in Equal Rights Center. Permitting a shift
of liability to a party lacking the power to remedy the
violation would frustrate the federal statutes’ regulatory
purpose. As we have stated in the Title III context of
landlords and lessees,
a covered entity may not use a contractual
provision to reduce any of its obligations
under [the ADA] . . . . [A] public
accommodation’s obligations are not
extended or changed in any manner by virtue
of its lease with the other entity. H.R.Rep.
No. 101-485(II), at 104, reprinted in 1990
U.S.C.C.A.N. 303, 387. The legislative
history [of the ADA] confirms that a landlord
has an independent obligation to comply with
the ADA that may not be eliminated by
contract.
Botosan v. Paul McNally Realty, 216 F.3d 827, 833 (9th Cir.
2000).
This principle applies equally to Title II’s
requirements for public services. Crucially, however, the
third-party claims asserted by the City against Appellees do
not seek to shift liability in such a manner.
Unlike the crossclaims at issue in Equal Rights Center,
the City’s third-party claim seeks only to collect for
violations arising out of Appellees’ own negligence or
wrongdoing. In this sense, though styled as a claim for
“indemnification,” the City functionally seeks contribution
from Appellees. Allowing the City to seek redress for
liability incurred by virtue of a third-party contractor’s

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actions does not plausibly pose an obstacle to the intended
purpose and effect of Title II or § 504. Rather, finding such
claims precluded would itself hamper the statutes’
regulatory purpose. The most a public entity may be able to
do in furtherance of its duties under the respective acts may,
in many situations, be to expressly contract for compliance
(contractual provisions for which it will potentially have to
pay a premium to the contractor). From there, the entity best
situated to ensure full compliance may well be the contractor
tasked with designing or constructing the public resource in
question, and precluding contract clauses for contribution
reduces a contractor’s incentives to do so. Cf. Baker, Watts
& Co., 876 F.2d at 1107 (finding indemnification claims
preempted by federal securities law, but stating that
“Congress did not remove it from the power of a state to
conclude that a state right to contribution would further the
regulatory purposes of the federal securities laws by holding
all violators to account.” (emphasis added)).
In sum, neither Title II of the ADA nor § 504 of the
Rehabilitation Act preempt the City’s state-law claims for de
facto contribution, however styled, against Appellees.
CONCLUSION
For the reasons set forth in this opinion, we REVERSE
the district court’s order dismissing the City’s third-party
claims, and REMAND for further proceedings consistent
with this opinion.