Chalk v. U.S. Dist. Court Cent. Dist. of California

• Decision Date: 26 February 1988
• Docket Number: No. 87-6418,87-6418
• Parties: 46 Fair Empl.Prac.Cas. 279, 45 Empl. Prac. Dec. P 37,782, 56 USLW 2502, 45 Ed. Law Rep. 58, 1 A.D. Cases 1210 Vincent L. CHALK, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, Respondent, ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, also known as Orange County Department of Education, and Robert Peterson, in his official capacity, Real Parties in Interest/Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 701

840 F.2d 701

46 Fair Empl.Prac.Cas. 279,

45 Empl. Prac. Dec. P 37,782, 56 USLW 2502,

45 Ed. Law Rep. 58, 1 A.D. Cases 1210

Vincent L. CHALK, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA,

Respondent,

ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, also known as

Orange County Department of Education, and Robert

Peterson, in his official capacity, Real

Parties in Interest/Respondents.

No. 87-6418.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1987.

Order Nov. 18, 1987.

Decided Feb. 26, 1988.

Paul L. Hoffman, Susan D. McGreivy, Mickey J. Wheatley, Jon W. Davidson, Christine A. Littleton, ACLU Foundation of Southern California, Los Angeles, Cal., Marjorie Rushforth, Georgia Garrett-Norris, Joel J. Loquvam, Garrett-Norris & Rushforth, Joan K. Honeycutt, Jack C. Francis, Santa Ana, Cal., for petitioner-appellant.

Ronald D. Wenkart, Costa Mesa, Cal., for respondents.

Elizabeth H. Esty, Sidley & Austin, Washington, D.C., Kirk B. Johnson, Martin J. Hatlie, Chicago, Ill., for amicus American Medical Ass'n.

John Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Asst. Atty. Gen., Marian M. Johnston, Supervising Deputy Atty. Gen., and M. Anne Jennings, Deputy Atty. Gen., for amicus State of Cal.

Kirsten L. Zerger, Chief Counsel, and A. Eugene Huguenin, Jr., Staff Counsel, for amicus California Teachers Ass'n.

Arlene Mayerson, Berkeley, Cal., Professor Karl Mannheim, Loyola University Law School, Los Angeles, Cal., for amicus Disability Rights and Educ. Defense Fund.

Karl Mannheim, Los Angeles, Cal., for amicus Nat. Hemophilia Foundation.

Chris Redburn and Rina Hirai, San Francisco, Cal., for amicus Employment Law Center of Legal Aid Soc. of San Francisco.

Nan D. Hunter, New York City, for amici Shirley L. Fannin, M.D., and Martin D. Finn, M.D. Mark I. Klein, M.D., in pro. per., amicus.

Ron Apperson, Legal Advisor, and Belinda D. Stith, Asst. Legal Advisor, Los Angeles, Cal., for amicus Los Angeles Unified School Dist.

Kenneth R. Vogel, Loyola Law School, and Nora Quinn, Los Angeles, Cal., for amicus Western Law Center for the Handicapped.

Appeal from the United States District Court for the Central District of California.

Before SNEED, SKOPIL and POOLE, Circuit Judges.

POOLE, Circuit Judge:

Petitioner Vincent L. Chalk is a certified teacher of hearing-impaired students in the Orange County Department of Education. ¹ In February of 1987, Chalk was diagnosed as having Acquired Immune Deficiency Syndrome (AIDS). Subsequently, the Department reassigned Chalk to an administrative position and barred him from teaching in the classroom. Chalk then filed this action in the district court, claiming that the Department's action violated Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 794 (West Supp.1987), as amended, which proscribes recipients of federal funds from discriminating against otherwise qualified handicapped persons.

Chalk's motion for a preliminary injunction ordering his reinstatement was denied by the district court, and Chalk brought this appeal. ² After hearing oral argument, we issued an order reversing the district court and directing it to issue the preliminary injunction. Chalk v. United States Dist. Court, 832 F.2d 1158 (9th Cir.1987). In this opinion, we now set forth in full the reasons underlying our reversal.

FACTS AND PROCEEDINGS BELOW

Petitioner Chalk has been teaching hearing-impaired students in the Orange County schools for approximately six years. In February 1987, Chalk was hospitalized with pneumocystis carinii pneumonia and was diagnosed as having AIDS. On April 20, after eight weeks of treatment and recuperation, he was found fit for duty and released to return to work by his personal physician, Dr. Andrew Siskind. The Department, however, placed him on administrative leave pending the opinion of Dr. Thomas J. Prendergast, the Director of Epidemiology and Disease Control for the Orange County Health Care Agency. On May 22, Dr. Prendergast informed the Department that "[n]othing in his [Chalk's] role as a teacher should place his students or others in the school at any risk of acquiring HIV ³ infection." ⁴

Chalk agreed to remain on administrative leave through the end of the school year in June. On August 5, Chalk and representatives of the Department met to discuss his return to the classroom. The Department offered Chalk an administrative position at the same rate of pay and benefits, with the option of working either at the Department's offices or at his home, and informed him that if he insisted on returning to the classroom, it would file an action for declaratory relief. Chalk refused the offer. On August 6, the Department filed an action in the Orange County Superior Court, and Chalk filed this action in the district court seeking a preliminary and permanent injunction barring the Department from excluding him from classroom duties. ⁵ By On August 18, Chalk moved for a preliminary injunction ordering the Department to reinstate him to his classroom duties pending trial. At a hearing on September 8, the district court denied the motion. Following the ruling, the Department reassigned Chalk to an administrative position coordinating grant applications and educational materials for the hearing-impaired program. A panel of this court denied Chalk's emergency petition for a writ of mandamus, but granted his alternative motion for an expedited appeal. Chalk then filed an emergency motion for an injunction pending appeal. We heard oral argument on November 10, and on November 18 we issued an order reversing the district court with this fuller statement of our reasons to follow.

agreement of counsel, the Department has not pursued the state court action; instead, it filed a counterclaim in the district court.

STANDARD OF REVIEW

The grant or denial of a motion for a preliminary injunction lies within the discretion of the district court, and its order will be reversed only if the court relied on an erroneous legal premise or otherwise abused its discretion. Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir.1982); Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir.1981); Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980) (L.A. Coliseum ). To determine whether there has been an abuse of discretion, the reviewing court must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). An order is reversible for legal error if the court did not apply the correct preliminary injunction standard, see Benda v. Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979), or if the court misapprehended the law with respect to the underlying issues in the litigation, see Sports Form, 686 F.2d at 752; L.A. Coliseum, 634 F.2d at 1200. An abuse of discretion may also occur when the district court rests its conclusions on clearly erroneous findings of fact. Sports Form, 686 F.2d at 752. A finding of fact is clearly erroneous when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

APPLICATION OF THE PRELIMINARY INJUNCTION STANDARD

The basic function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. L.A. Coliseum, 634 F.2d at 1200. The moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Id. at 1201; Benda, 584 F.2d at 314-15. "These are not separate tests, but the outer reaches 'of a single continuum.' " L.A. Coliseum, 634 F.2d at 1201 (quoting Benda, 584 F.2d at 315). We will examine each of the elements in turn.

1. Probable Success on the Merits

Chalk bases his claim on section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, as amended (the Act), which provides:

No otherwise qualified individual with handicaps ... shall, solely by reason of his handicap, be excluded from the participation in ... or be subjected to discrimination under any program or activity receiving Federal financial assistance ...

As the district court recognized, the Supreme Court recently held that section 504 is fully applicable to individuals who suffer from contagious diseases. School Bd. of Nassau County v. Arline, --- U.S. ---- 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). ⁶ Arline involved a school teacher who was discharged after contracting tuberculosis. She sued the school authorities claiming unlawful discrimination in violation of section 504. The trial court held that although Arline suffered a handicap, she was not a "handicapped person" within the meaning of the Act, stating that it could not "conceive that Congress intended contagious diseases to be included within the definition of a handicapped person." 107 S.Ct. at 1125. Alternatively, the trial court held that even if Arline fell within that definition, she was not "qualified" to teach elementary school. Id. The Court of Appeals for the Eleventh Circuit reversed, holding that persons with contagious diseases were within the Act's coverage. Arline v. School Board of Nassau County, 772 F.2d 759, 764 (11th Cir.1985). The Supreme Court granted certiorari and affirmed the court of appeals in an opinion by Justice Brennan. Chief Justice Rehnquist, joined by Justice Scalia, dissented.

In its opinion, the Court addressed the question which is of central importance to this...