No. _________
________________________________________________________________
XXXX COURT OF APPEALS
FOR THE FOURTH CIRCUIT
________________________________________________________________
XXX,
Appellant,
v.
XXX GOVERNMENT, ET AL.,
Appellees.
________________________________________________________________
BRIEF FOR THE APPELLANT
________________________________________________________________
Appeal from the Judgment of the XXX District Court
Eastern District of XXX entered on January XXX
XXX
(XXX)
________________________________________________________________
[ENTER NAME]
[ENTER ADDRESS]
Appellant
2
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 3
STATEMENT OF ISSUES 3
STATEMENT OF THE CASE AND RELEVANT FACTS 3
SUMMARY OF ARGUMENT 5
STANDARD OF REVIEW 5
ARGUMENTS 6
THE TRIAL COURT ENGAGED IN DISABILITY DISCRIMINATION
AGAINST THE PLAINTIFFS IN THE TRIAL CASE, BY DENYING
THEM THE USE OF AUXILIARY AIDS 6
CONCLUSION 12
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15
3
TABLE OF AUTHORITIES
Cases
XX
4
XXX
STATEMENT OF JURISDICTION
5
The district court had subject matter jurisdiction pursuant to 28 U.S.C. §
1331 and Plaintiffs’ claims arise under federal law. In the Trial Court, Plaintiffs
sought relief under inter alia, 42 U.S.C. § 1983; 42 U.S.C. § 1988; 42 U.S.C.§
1985; 42 U.S.C.§ 1986; Monell-Related Claims; RICO conspiracy to commit
fraud; 28 U.S.C. § 1361; and Bivens Claims.
The district court entered an interlocutory judgment denying Appellant’s
motion to intervene, on January 6, 2023. Accordingly, this Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1292 because the Appellant is appealing an
interlocutory decision.
STATEMENT OF ISSUES
Whether the Trial Court engaged in disability discrimination against the
Plaintiffs in the Trial Case, by denying them the use of auxiliary aids.
STATEMENT OF THE CASE AND RELEVANT FACTS
The Plaintiffs in the Trial Court filed their Complaint on or about October
11, 2022, asserting claims under 42 U.S.C. § 1983; 42 U.S.C. § 1988; 42
U.S.C.§ 1985; 42 U.S.C.§ 1986; Monell-Related Claims; RICO conspiracy to
commit fraud; legal malpractice; medical malpractice; breach of fiduciary duty;
breach of implied and express warranties; unconscionable contracts; 28 U.S.C.
§ 1361; Bivens Claims; and declaratory and injunctive relief. See Complaint.
Plaintiffs sued the Appellee for violation of civil rights arising out of child
custody proceedings held in various states and localities. Plaintiffs are therefore
parents of children involved in those child custody proceedings.
6
On December XXX, the Trial Court issued an order dismissing certain
Plaintiffs from the case without prejudice, for failing to timely correct
deficiencies on notices of self- representation or financial disclosure statements
See Trial Court’s December XXX Order, page 1. The court also noted that
Appellant’s filing of records on behalf of other Plaintiffs “gives rise to a
suggestion of her representation on behalf of other pro se parties and/or
unauthorized practice of law.” See Trial Court’s December XXX Order,
page 2. The Court then directed the remaining Plaintiffs to file a response to the
order, confirming that each Plaintiff was acting on its own behalf See Trial
Court’s December XXXX Order, page 3. The Trial Court also notified the
Plaintiffs of their possible removal from the case for failure to prosecute, and
for failure to adhere to the Court’s orders.
On January XXXX, the Court issued another order See Trial Court’s
January XXX Order. In this order, the court noted that six Plaintiffs had
responded to its December XXX order. The Court then dismissed the
remaining Plaintiffs, including Appellant, from the case, for failure to prosecute
and failure to comply with the court’s order. See Trial Court’s January XXX Order, page 3. The Court also denied the Appellant’s (and other
Plaintiffs’) Motions to Intervene. The Court stated that none of the movants
seeking intervention met the requirements for intervention of right, under Rule
24(a), or permissive intervention, under Rule 24(b). See Trial Court’s January
6, 2023 Order, page 6.
7
SUMMARY OF ARGUMENT
The Trial Court judge discriminated upon the Plaintiffs who have
disabilities under the ADA. It is notable that the attorneys for the Appellees are
allowed to use electronic means of signing and communication, which unfairly
advantages them. On the other hand, the pro se Plaintiffs who have disabilities
caused by the Appellees are not allowed to use their aids. This is in violation of
the Americans with Disabilities Acts because it bars the disabled individuals
from accessing public services, which in this case is the court. Accordingly, the
Trial Court judge erred in denying Appellant’s Motion to Intervene claiming
that Appellant was representing the pro se Plaintiffs and acting as their attorney.
However, Appellant has not held herself out to be an attorney. She is only an
auxiliary aid, considering the Plaintiffs’ disabilities.
STANDARD OF REVIEW
This Honorable Court reviews de novo the legal conclusion of the district
court, but reviews for clear error the district court’s underlying factual findings.
See United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). Moreover, if the
district court errs as a matter of law, it has by definition committed an abuse of
discretion. See Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court
by definition abuses its discretion when it makes an error of law.")
ARGUMENTS
8
THE TRIAL COURT ENGAGED IN DISABILITY
DISCRIMINATION AGAINST THE PLAINTIFFS IN THE TRIAL
CASE, BY DENYING THEM THE USE OF AUXILIARY AIDS.
Title III of the ADA prohibits public accommodations from
discriminating against individuals with disabilities. See 42 U.S.C. 12182(a). It
expressly requires owners, operators, or lessees of public accommodations to
take “such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated
differently because of the absence of auxiliary aids and services”. 42 U.S.C.
12182(b)(2)(A)(iii). Failure to take such steps amounts to prohibited
discrimination unless the accommodation shows that providing the auxiliary aid
or service would fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered or would result in an
undue burden. Id.
28 C.F.R. § 36.302 (a) provides for the modifications in policies,
practices, or procedures, to accommodate individuals with disabilities. Said
provision states that:
A public accommodation shall make reasonable modifications in
policies, practices, or procedures, when the modifications are
necessary to afford goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities,
unless the public accommodation can demonstrate that making
the modifications would fundamentally alter the nature of the
goods, services, facilities, privileges, advantages, or
accommodations
9
28 CFR 36.303(a) also provides for auxiliary aids and services for
disabled individuals. Said provision states in pertinent part that:
A public accommodation shall take those steps that may be
necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of
auxiliary aids and services, unless the public accommodation can
demonstrate that taking those steps would fundamentally alter
the nature of the goods, services, facilities, privileges,
advantages, or accommodations being offered or would result in
an undue burden, i.e., significant difficulty or expense.
28 CFR 36.303(b) proceeds to define what includes an auxiliary aid.
Accordingly, auxiliary aids may include “other effective methods of making
aurally delivered information available to individuals who are deaf or hard of
hearing”, “other effective methods of making visually delivered materials
available to individuals who are blind or have low vision”, or “[o]ther similar
services and actions”.
Further, 28 CFR 36.303(c)(1) provides for the need for effective
communication for people with disabilities. This includes an obligation to
provide effective communication to companions who are individuals with
disabilities. According to said law, “‘companion’ means a family member,
friend, or associate of an individual seeking access to, or participating in, the
goods, services, facilities, privileges, advantages, or accommodations of a
public accommodation, who, along with such individual, is an appropriate
person with whom the public accommodation should communicate.”
10
It is also notable that “[t]he type of auxiliary aid or service necessary to
ensure effective communication will vary in accordance with the method of
communication used by the individual; the nature, length, and complexity of the
communication involved; and the context in which the communication is taking
place.” 28 CFR 36.303(c)(1)( ii ).
“[T]he type of auxiliary aid that ensures ‘effective communication’ varies
by context.” See Feldman v. Pro. Football, Inc., 419 Fed.Appx. 381, 391 (4th
Cir. 2011). The DOJ’s Technical Assistance Manual for Title III also indicates
that the type of auxiliary aid that ensures "effective communication" varies by
context. See U.S. Dep’t of Justice, Civil Rights Division, The Americans with
Disabilities Act: Title III Technical Assistance Manual III-4.3200. The
regulation contemplates that, like the type of auxiliary aid, the content that must
be communicated by auxiliary aids is also context-sensitive. What constitutes
"full and equal enjoyment" of a place of public accommodation’s goods,
services, facilities, and privileges necessarily varies based on what the place
provides to visitors and consumers. See Feldman v. Pro Football, Inc., 419 F.
App’x 381, 391 (4th Cir. 2011).
Further, the law permits a person with a disability to act as such person’s
auxiliary aid, if such disabled person “specifically requests that the
accompanying adult interpret or facilitate communication, the accompanying
adult agrees to provide such assistance, and reliance on that adult for such
assistance is appropriate under the circumstances.” See 28 CFR 36.303(c)(3)( ii ).
11
In McGann v. Cinemark USA, Inc., 2016 U.S. Dist. LEXIS 45332 (W.D.
Pa., Apr. 4, 2016), the Court held that the trial court had erred by determining
that the requested tactile interpreter was not an auxiliary aid or service under the
Americans with Disabilities Act (ADA). In the words of the Court, “tactile
interpreter satisfied the definition of ‘auxiliary aid or service’”.
Also, in Feldman v. Pro Football, Inc., 419 F. App’x 381, 391 (4th Cir.
2011), the Fourth Circuit affirmed a grant of summary judgment in favor of deaf
plaintiffs, holding that the ADA required the defendants to provide captioning
of the lyrics of popular music played over the public address system at a
stadium during professional football games.
It is instant action, it is Appellant’s contention that by denying
Appellant’s Motion to Intervene, the Trial Court judge discriminated upon the
Plaintiffs who have disabilities under the ADA. The Trial Court judge
erroneously stated that Appellant was representing the pro se Plaintiffs and
acting as their attorney. However, Appellant has not held herself out to be an
attorney. She is only an auxiliary aid, considering the Plaintiffs’ disabilities. The
Plaintiffs, including Appellant, have mild to severe disabilities. They therefore
need electronic aids for communication and for preparing documents.
In consideration of the Plaintiffs’ disabilities, the Trial Court should have
taken such steps as may be necessary to ensure that the Plaintiffs were not
excluded or denied the Court’s services. See 42 U.S.C. 12182(b)(2)(A)(iii). In
the circumstances, the Plaintiffs had selected Appellant to be their auxiliary aid.
12
As Appellant has already stated above, the law permits an auxiliary aid for
individuals with disabilities, to provide, inter alia, provide effective
communication to companions who are individuals with disabilities. See 28
CFR 36.303(c)(1).
Further, as already stated above, the type of auxiliary services needed
varies depending on the method of communication used by the individual; the
nature, length, and complexity of the communication involved; and the context
in which the communication is taking place. 28 CFR 36.303(c)(1)( ii ). In this
case, the Plaintiffs had mild to severe disabilities. They therefore need
electronic aids for communication and for preparing documents. Since the
Plaintiffs needed effective communication in their prosecution of their case at
the Trial Court, Appellant’s services are greatly needed.
Besides, the Plaintiffs requested Appellant to be their auxiliary aid, and
Appellant accepted their requests. This is allowed under the law. See 28 CFR
36.303(c)(3)( ii ).
It is notable that the attorneys for the Appellees are allowed to use
electronic means of signing and communication, which unfairly advantages
them. On the other hand, the pro se Plaintiffs who have disabilities caused by
the Appellees are not allowed to use their aids. This is in violation of the
Americans with Disabilities Acts because it bars the disabled individuals from
accessing public services, which in this case is the court.
13
Appellant therefore avers that the Trial Court’s failure to take such steps,
and denying Appellant’s Motion to Intervene, amounts to prohibited
discrimination. Besides, the Trial Court cannot show that allowing Appellant to
be the Plaintiffs’ auxiliary aid would fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being offered or would
result in an undue burden to the Court. 28 C.F.R. § 36.302 (a) and 28 CFR §
36.304 provide that any policy and procedural barriers must be removed and/or
modified, to accommodate individuals with disabilities.
Appellant avers that the Trial Court, in denying Appellant’s Motion to
Intervene, is in violation of the Rehabilitation Act. "To establish a prima facie
claim of failure to accommodate under the Rehabilitation Act, a plaintiff must
demonstrate that (1) [he or] she was a qualified person with a disability; (2) the
employer had notice of the disability; (3) the plaintiff could perform the
essential functions of the position with a reasonable accommodation; and (4) the
employer nonetheless refused to make the accommodation." Hannah P. v.
Coats, 916 F.3d 327, 337 (4th Cir. 2019).
In this case, the Plaintiffs and Appellant, are qualified persons with
disabilities, as already stated hereinabove. Next, Trial Court is federally funded
entity that falls under the jurisdiction of the Rehabilitation Act. See Myers v.
Hose, 50 F.3d 278, 281 (4th Cir. 1995) ("[W]here suit is filed against a
federally-funded entity under the Rehabilitation Act or against a private
14
employer under the ADA, the substantive standards for determining liability are
the same.").
Next, in consideration of the Plaintiffs’ disabilities, the Plaintiffs needed
Appellant’s services as an auxiliary aid, in order to prosecute their case at the
Trial Court. However, the Trial Court judge denied the Appellant’s Motion to
Intervene, which action makes the Trial Court judge violate the Rehabilitation
Act. It is notable that the law provides no immunity for governmental agents
and officials who violate the Americans with Disabilities Act. See 28 CFR §
35.130.
CONCLUSION
This Honorable Court should rule in favor of Appellant and allow
Appellant be the auxiliary aid of the Plaintiffs, and allow them to use electronic
devices. The court should also order the Trial Court to modify its customs and
procedures to allow for extra time for them to respond. Lastly, this Honorable
Court should stay the Trial Court’s decision denying Appellant’s Motion to
Intervene, and dismissing the Plaintiffs from the case. The Court should also
grant a stay from all current motions that are pending from the Appellees until
this Honorable Court settles the instant matter.
Accordingly, the Appellant prays that this Court issues Judgment for
Plaintiff and for the interest of justice and fairness, reverse the District Court’s
judgment, and remands the case with appropriate instructions. Appellant also
prays this Court grant any other Order it deems fit and just.
15
Respectfully Submitted,
Dated: _____________
_______________________
XXXX
Appellant
CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate Procedure 32(a)
(7)(C), that the attached OPENING BRIEF FOR THE APPELLANT:
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1. complies with Federal Rule of Appellate Procedure 32(a)(7)(B) because it
contains roughly 2,337 words, excluding the parts of the brief exempted
by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii); and
2. complies with the typeface requirements of Federal Rule of Appellate
Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Word 2016, in 14-point Times New
Roman font.
The undersigned has relied upon the word count feature of the mentioned
word processing system in preparing this certificate.
Dated: _____________
_______________________
XXX
Appellant
CERTIFICATE OF SERVICE
I hereby certify that on _____________, I sent the foregoing to the
Parties herein to their respective addresses.
Dated: _____________
17
_______________________
XXX
Appellant
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