Bartels v. Biernat, 75-C-704.

• Decision Date: 24 December 1975
• Docket Number: No. 75-C-704.,75-C-704.
• Citation: 405 F. Supp. 1012
• Parties: Randall BARTELS et al., Plaintiffs, v. Francis F. BIERNAT et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

405 F. Supp. 1012

Randall BARTELS et al., Plaintiffs, v. Francis F. BIERNAT et al., Defendants.

No. 75-C-704.

United States District Court, E. D. Wisconsin.

December 24, 1975.

COPYRIGHT MATERIAL OMITTED

Kenneth M. Streit, James L. Brown, and Robert Blondis, Milwaukee Legal Services, Milwaukee, Wis., for plaintiffs.

William E. Callahan, Jr., Asst. U. S. Atty., Milwaukee, Wis., for Federal defendants.

George E. Rice and Gerald G. Pagel, Asst. Corp. Counsels, Milwaukee, Wis., for Milwaukee County Transit Bd.

MEMORANDUM AND ORDER

WARREN, District Judge.

This is an action whereby certain mobility-handicapped persons seek to gain greater access to the public mass transportation system which has been designed for service in Milwaukee County. The named plaintiffs are mobility-handicapped individuals who reside in Milwaukee County; the suit is brought on behalf of them and a group of some 2,000 other people, allegedly similarly situated.

The defendants include members of the Milwaukee County Transit Board, as officials charged with responsibility for the operation and maintenance of mass transportation systems in the County and City of Milwaukee; the defendants also include the Secretary of the United States Department of Transportation and the Administrator of the Urban Mass Transportation Administration of the Department of Transportation, as individuals responsible for the administration of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. § 1601 et seq.

The facts recited in the complaint and the briefs that have been filed to date indicate that on March 15, 1975, the Milwaukee County Transit Board (MCTB) submitted application number WI-03-0005 (the application) in an effort to obtain a capital improvement grant from the United States Department of Transportation, Urban Mass Transit Administration (UMTA). The purpose of this grant was to fund the purchase of the Milwaukee and Suburban Transit Company, a privately owned transit system operating in Milwaukee County, together with some 100 new public passenger buses. It appears that the application was made under the provisions of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. § 1601 et seq., and was approved by the UMTA in or about May, 1975.

While Milwaukee County, through the MCTB, assumed control of the local transit system on or about July 1, 1975, it is clear that none of the 100 new buses have been or are being manufactured for the MCTB at this time. Pursuant to the application and funding in question, bids for a contract in this regard were received from two bus manufacturers on November 25, 1975; these bids were to remain open for a period of approximately thirty days, and are presently outstanding.

Anticipating that one or more of these bids will be accepted, counsel for the plaintiffs have filed a complaint to commence this suit together with motions for a temporary restraining order, a preliminary injunction, and leave to proceed as a class. They seek to prevent execution of any contracts for construction of the public passengers buses described above; they allege that until the needs of the mobility handicapped are given greater consideration, the applications, authorizations, grants of funds and proposed contracts at issue here involve actions and conduct on the part of the defendants which violate not only certain provisions of the Urban Mass Transportation Act, as amended, 49 U.S.C. § 1601 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq., but also fifth and fourteenth amendments to the United States Constitution.¹

The following memorandum opinion will resolve the motions for leave to proceed as a class and for preliminary injunctive relief, as filed on behalf of the plaintiffs, and will consider in detail certain questions regarding jurisdiction over the various named defendants. For reasons to be disclosed below, the Court is of the opinion that jurisdiction does exist as to all defendants, and that these two pending motions should each be granted.

I. JURISDICTION

As concerns the state officials, jurisdiction lies pursuant to 28 U.S.C. § 1343 because the complaint alleges a cause of action arising under 42 U.S.C. § 1983.² As concerns the federal officials, jurisdiction lies under § 10 of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and/or the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. See: Brown v. Lynn, 385 F.Supp. 986 (N.D.Ill., 1974).³

Notwithstanding the argument submitted by counsel for these parties, the Court need not and does not determine whether a private right of action is created by either § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, or § 16(a) of the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1612(a). Where equitable relief is sought, as in the case at bar, it would appear that private plaintiffs with sufficient standing may obtain protection against harm from federal administrative action even though the only legally protected interests are those of the public. See, e. g., Davis v. Romney, 490 F.2d 1360 (3d Cir., 1974).

The prospective plaintiffs cannot be said to be without sufficient standing: They are clearly within the zone of interests to be protected by the statutes in question; if entitled to either mass transportation at a cost no greater than that now paid by the general public, or simply more consideration before the funds at issue are expended, they appear to have alleged sufficient economic injury or harm in fact. More need not be required. See: United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), Ass'n. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); see too, Northwest Residents Ass'n v. Department of H. U. D., 325 F.Supp. 65 (E.D.Wis., 1971).

II. THE PROPRIETY OF PERMITTING THE PLAINTIFFS TO PROCEED AS A CLASS

The complaint that has been filed indicates that the three named plaintiffs would bring this action on behalf of themselves and a class of individuals similarly situated. In accordance with Rule 23(c)(1), Federal Rules of Civil Procedure, the Court will proceed to review the factual circumstances presented and to consider the propriety of permitting the suit to proceed in this fashion.

It is apparent that the pleas for injunctive relief at issue here are based in substantial part upon 29 U.S.C. § 794. See part III, infra. This statute prohibits certain discriminations in connection with federal grants, and is explicitly intended to protect handicapped individuals as defined at 29 U.S.C. § 706(6):

"(6) The term `handicapped individual' means any individual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to subchapters I and III of this chapter. For the purposes of subchapters IV and V of this chapter, such term means any person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment."

In view of the broad nature of the language quoted above, the Court cannot conclude that the scope of the proposed class is unduly large. On the basis of the record as it exists at this time, the Court finds that this class contains readily-identifiable members too numerous for joinder, that common questions of law and fact exist as to all prospective class members, and that the named plaintiffs are able to adequately protect the interests of all concerned. The Court is of the opinion that this case presents a situation wherein the named defendants and their agents have acted or refused to act on grounds generally applicable to each of the members of the proposed class, and wherein it would be appropriate to consider the claims of these parties as a group.

For the reasons stated above, and because only declaratory and injunctive relief is sought, the Court finds that the plaintiffs may proceed as a class under the provisions of Rule 23(b)(2), Federal Rules of Civil Procedure. The class will include the named plaintiffs and all persons in Milwaukee County who suffer from a mobility handicap and who are presently unable to make effective use of the public mass transportation system that is serving Milwaukee County.

The Court would address the problem of notice. With due regard for principles of procedural due process, as embodied in the fifth and fourteenth amendments to the United States Constitution, and because the class has been established pursuant to Rule 23(b)(2), F.R.C.P., the Court determines that the facts of this case are not such as to require that notice be given to these plaintiffs on an individual basis. See: Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Watson v. Branch County Bank, 380 F.Supp. 945 (W.D. Mich., 1974). In light of the nature of the injunctive relief that is sought, the Court need not review the various circumstances of the individuals to comprise the class; the fact that certain members of this group may be personally satisfied with the questioned conduct is of no material consequence. See generally, 3B Moore's Federal Practice ¶ 23.40, at pp. 23-651 et seq. (1975 Ed.).

III. THE PROPRIETY OF PRELIMINARY INJUNCTIVE RELIEF

Counsel for the plaintiffs have filed motions for a temporary restraining order and a preliminary injunction. Because notice has been given and a hearing has been held, and because briefs have been submitted on behalf of each party, the Court will consider only the latter of these motions at this time. As a practical matter, the showings required for either type of relief are thought to be quite...