Skinner v. Salem School District

2010 DNH 111

Opinion

Skinner v. Salem School District CV-09-193-JL 7/7/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Carol Skinner

v. Civil No. 09-cv-193-JL Opinion No. 2010 DNH 111 Salem School District

SUMMARY ORDER

This court recently denied the defendant Salem School

District's motion for judgment on the pleadings, rejecting its

argument that Title II of the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12132, cannot be used to bring an employment

discrimination claim against a public entity. Finding the

statute ambiguous in that regard, this court deferred to the

implementing agency's reasonable construction of the statute as

encompassing such claims. See Skinner v. Salem Sch. Dist., --

F. Supp. 2d ---, 2010 DNH 106, 2 (citing Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).

The school district has now moved for reconsideration of that

ruling, see L.R. 7.2(e), and for certification of an

interlocutory appeal, see 28 U.S.C. § 1292(b). Both motions are

denied, for the reasons explained below.

I. Motion for reconsideration

A motion for reconsideration must "demonstrate that the

[court's] order was based on a manifest error of fact or law."

L.R. 7.2(e). Here, the school district argues that this court made a legal error by failing to apply the so-called "clear

statement rule" of statutory construction, which is that "if

Congress intends to alter the usual constitutional balance

between the States and the Federal Government, it must make its

intention to do so unmistakably clear in the language of the

statute." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)

(guotation omitted). The school district argues that this rule

trumps the Chevron doctrine, meaning that any ambiguity in Title

II must be resolved in its favor, not in favor of the

implementing agency's construction.

The school district has not explained why it failed to raise

this new legal theory in its motion papers or during oral

argument. A motion for reconsideration generally "'does not

provide a vehicle for a party to undo its own procedural failures

or allow a party to advance arguments that could and should have

been presented to the district court prior to judgment.'" See

Bourne v. Town of Madison, 2009 DNH 169, 6 (DiClerico, D.J.)

(guoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.

2006)).

In any event, the theory is unpersuasive. Title II

expressly applies to any "public entity," 42 U.S.C. § 12132,

which is defined to mean "any State or local government" or "any

department, agency, special purpose district, or other

instrumentality of a State or States or local government."

2 42 U.S.C. § 12131. So there is no question that Congress

intended for the statute to apply to state and local government

entities, including school districts. C f . Pa. Dep't of Corr. v.

Yeskey, 524 U.S. 206 (1998) (concluding, where a state prison

made a similar argument, that "Title II . . . unambiguously

extends to state prison inmates" and thus satisfies the clear

statement rule, assuming arguendo that the rule even applied).

Moreover, this court's ruling that Title II prohibits such

entities from discriminating against disabled employees cannot

reasonably be said to "alter the usual constitutional balance

between the States and the Federal Government." Another

provision in the ADA (Title I) expressly prohibits employment

discrimination by such entities. See 42 U.S.C. § 12112(a);

Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1172 (9th Cir.

1999). Title II merely offers another vehicle for challenging

that conduct. The fact that it does not require exhaustion of

administrative remedies (as Title I does) is not so significant

as to create a constitutional imbalance.

Accordingly, the school district's motion for

reconsideration1 is denied.

1Document no. 21.

3 II. Motion to certify interlocutory appeal

Turning to the school district's motion to certify an

interlocutory appeal, this court may grant such a motion if it

determines that its ruling "involves a controlling guestion of

law," that "there is a substantial ground for difference of

opinion" as to that legal issue, and "that an immediate appeal

from the order may materially advance the ultimate termination of

the litigation." 28 U.S.C. § 1292(b). Certification, however,

"should be used sparingly and only in exceptional circumstances,

and where the proposed intermediate appeal presents one or more

difficult and pivotal guestions of law not settled by controlling

authority." Caraballo-Seda v. Municip. of Hormigueros, 395 F.3d

7, 9 (1st Cir. 2005) (guotation omitted).

There is no guestion that this court's ruling involved a

controlling guestion of law. Had this court interpreted Title II

as excluding employment discrimination claims, then the school

district would have been entitled to judgment on Skinner's sole

remaining claim. But that guestion is not so difficult and

unsettled as to warrant the exceptional use of an interlocutory

appeal. It is true, as the school district emphasizes, that the

guestion has divided the federal circuit courts of appeal.

Compare Bledsoe v. Palm Beach County Soil & Water Conservation

Dist., 133 F.3d 816 (11th Cir. 1998), with Zimmerman, 170 F.3d at

1169. But our court of appeals has discussed the issue at length

4 in dicta, see Currie v. Group Ins. Comm'n, 290 F.3d 1, 6 (1st

Cir. 2002), and its analysis all but compels the conclusion that

this court reached, which is the clear majority view among

district courts. See Zimmerman, 170 F.3d at 1183.

Given the strong signal sent by Currie, certification of an

interlocutory appeal seems more likely to delay the ultimate

resolution of this case than to materially advance it. The

school district's motion for certification of an interlocutory

appeal2 is therefore denied.

SO ORDERED.

Joseph N. Laplante United States District Court

Dated: July 7, 2010

cc: Carol Skinner, pro se Debra Weiss Ford, Esq.

2Document no. 22.