Particularly when, as here, I don't think that the facts of the case are exactly those I'd want if I was litigating in the public interest. Which is precisely what's happening here, where there's a public interest group representing the plaintiff and lots of public interest amici support as well. (Lots of amici on the other side, too, I might add.)
The core (overly simplified) issue in the case is whether the ADA can regulate municipal public transportation systems through private litigation or whether the Secretary of Transportation is the sole authority who can do so. It's a tough call, and there are reasonable arguments on both sides.
But even when, as here, it's a pure question of statutory interpretation, I think that facts matter. And what facts do we have here? It's a disabled plaintiff, so that obviously creates sympathy as well as a desire to ensure that she has access to a full and complete life. But what precisely what relief does she want in the lawsuit? Well, the defendant here operates the bus and light rail system in Portland and its environs. For disabled individuals like plaintiff, it operates door-to-door service -- not merely station-to-station like for the non-disabled -- largely through a separate fleet of 225 buses that provide shared rides. Sometimes, though, those buses aren't readily available, so there are also 15 sedans, and when those aren't available, the defendant simply calls the plaintiff a taxi (and pays for it).
Plaintiff has a doctor's note that says that the bus rides cause her "trauma" and recommended that in the future she instead be provided with a sedan or taxi to "reduce her neurological and emotional stress." Which may be entirely accurate. But let me tell you how it can easily look to an outsider, particularly one who may not be sympathetic towards the ADA itself: That plaintiff would prefer to ride in a private taxi or sedan rather than a bus (and who wouldn't, after all?), and is using the ADA to argue that the defendants have to give her what she wants.
I think that the facts, combined with the law and the panel, are simply too overwhelming here. Sometimes you've got to take a 30,000 foot view of the case. Particularly when it's a public interest case, and perhaps especially when you're emotionally invested in the cause. Here, that 30,000 foot view isn't so favorable. Hence, at least in part, the result.
