George v. Bay Area Rapid Transit

• Decision Date: 13 August 2009
• Docket Number: No. 07-15661.,No. 07-15896.,07-15661.,07-15896.
• Citation: 577 F.3d 1005
• Parties: Sheron GEORGE; Sharricci Fourte-Dancy, Plaintiffs-Appellees, v. BAY AREA RAPID TRANSIT, Defendant-Appellant. Sheron George; Sharricci Fourte-Dancy, Plaintiffs-Appellees, United States of America, Appellant, v. Bay Area Rapid Transit, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

577 F.3d 1005

Sheron GEORGE; Sharricci Fourte-Dancy, Plaintiffs-Appellees, v. BAY AREA RAPID TRANSIT, Defendant-Appellant.

Sheron George; Sharricci Fourte-Dancy, Plaintiffs-Appellees, United States of America, Appellant, v. Bay Area Rapid Transit, Defendant.

No. 07-15661.

No. 07-15896.

United States Court of Appeals, Ninth Circuit.

Argued September 11, 2008.

Submitted August 5, 2009.

Filed August 13, 2009.

Patricia Barbosa, Law Offices of Paul L. Rein, Oakland, CA argued the cause for plaintiffs-appellees and filed a brief. Paul Rein and Julie Ostel, Law Offices of Paul L. Rein, Oakland, CA, and Bryce Anderson, Law Office of Bryce Anderson, Brentwood, CA were on the brief.

Joseph Hearst, Berkeley, CA argued the cause for Bay Area Rapid Transit and filed briefs. Clement Glynn and James Hanlon, Glynn & Finley LLP, Walnut Creek, CA were on the briefs.

Karl Gellert, U.S. Department of Justice, Washington, D.C., argued the cause for intervenor-appellant and filed the briefs.

Rena Comisac, Acting Assistant Attorney General, and Mark Gross were on the briefs.

James LaRusch, American Public Transportation Association, Washington, District of Columbia filed a brief on behalf of amici curiae American Public Transportation Association; Peninsula Corridor Joint Powers Board; San Mateo County District; Golden Gate Bridge, Highway and Transportation District; Central Contra Costa Transit Authority; Alameda-Contra Costa Transit District; Santa Cruz Metropolitan Transit District; and San Diego Metropolitan Transit System. With him on the brief were Madeline Chun, Hanson Bridgett Marcus Vlahos & Rudy, LLP, San Francisco, California; Kenneth Scheidig, Alameda-Contra Costa Transit District, Oakland, California; Margaret Gallagher, Santa Cruz Metropolitan Transit District, Santa Cruz, California; and Tiffany Lorenzen, San Diego Metropolitan Transit System, San Diego, California.

Tiffany Lorenzen, San Diego Metropolitan Transit System, San Diego, California, filed a brief on behalf of amicus curiae San Diego Metropolitan Transit System.

Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. CV-00-02206-CW.

Before DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and CARLOS T. BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether sight-impaired transit riders can recover under the Americans with Disabilities Act where a public transit service system complies with existing federal design regulations for train station accessibility.

I

A

Sheron George had congenital cataracts. By 1998, her vision had become impaired to the point that she was declared legally blind.¹ George valued her independence, and because she could not drive, relied on services provided by Bay Area Rapid Transit District ("BART") and other public transportation services to get around. She found it particularly difficult to negotiate stairs because of her limited depth perception. However, she was able to use stairs if they were painted or marked a different color to show the location of each step. She was taught to follow the movement of others to avoid getting lost when she entered or exited public places. She had never attempted to use BART's so-called accessible or universal routes in its train stations.

One day, George was walking from a bus to a BART train station when she fell down a set of stairs. She reported that she "did not see any markings or any other indication that [she] was approaching a stair until [she] suddenly stepped off into thin air." She also noted that she was in great pain as a result of her fall and was taken to the hospital the next day. Four days later, George fell again when she attempted to use what was (unbeknownst to her) a closed entrance. She stated in an affidavit that she was severely hurt and asked BART to call an ambulance.

George's eyesight improved in 2001 to the point that she was no longer legally blind. However, she reported that after her falls she developed physical disabilities that significantly impaired her mobility and was prescribed a wheelchair due to those disabilities.

Sharricci Fourte-Dancy² had partial sight in both eyes, with corrected vision of 20/200 in one eye and 20/100 in the other.³ Her depth perception and peripheral vision were limited; her night vision was even more significantly impaired. As of 2002, she was a student at California State University at Hayward and used public transportation (including BART) to attend school and for other purposes. She reported anxiety when using some of BART's stations because they were not equipped with color contrast striping or accessible handrails. She did not have the visual acuity necessary to locate a designated accessible route on her own because she could not read signs in public places unless she was very close to them. Fourte-Dancy reported feeling unsafe when isolated from the general public, and stated that the BART elevators she knew of were too isolated. For these two reasons, she "would not and [could not] use the `universal route' that BART claims was intended and designed for blind and low vision persons." She reported, however, that she could use facilities "with a few minor modifications," such as color contrast striping and accessible handrails.

Fourte-Dancy reported that the lack of color contrast striping and the excessively wide handrails almost caused her to fall at BART's MacArthur train station. She also reported that the glare from the color contrast steps at the 19th Street station also caused her difficulty in using the stairs.

B

George and Fourte-Dancy (to whom we refer as "transit riders") sued BART in the United States District Court for the Northern District of California, alleging violations of the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973, and California civil rights laws.⁴

In the district court, both sides agreed that BART's facilities complied with the Department of Transportation ("DOT") regulations, which require that each light rail station have "at least one accessible route from an accessible entrance to those areas necessary for the use of the transportation system." 56 Fed.Reg. 45,500, 45,510 (Sept. 6, 1991). DOT regulations are required by statute to be consistent with the ADA Accessibility Guidelines ("ADAAG") in effect at the time. Such specific technical guidelines implementing the ADA are issued by the Architectural and Transportation Barriers Compliance Board ("Board"), an independent agency.⁵ Nevertheless, the district court found that such DOT regulations were "both arbitrary and plainly contrary to the statute." Because "the ADA requires that public transportation programs be accessible to all patrons with disabilities," "[t]he DOT regulations are arbitrary and capricious to the extent that they fail to fulfill this mandate by failing to address the needs of those with visual impairments." A stipulated judgment required BART to pay attorney's fees and costs, as well as $35,000 in compensatory damages. In addition, BART was required to take seven specific steps to improve the accessibility of some of its facilities to those with vision impairments.

BART appealed the district court's decision to this court, whereupon the United States was granted leave to file a brief as amicus curiae. On April 21, 2006, we vacated the district court's decision and remanded the case to the district court so the United States could intervene as a party, which the United States promptly did. See George v. Bay Area Rapid Transit Dist., 175 Fed.Appx. 809 (9th Cir.2006). Following remand, the district court again found the DOT regulations to be arbitrary and capricious. BART and the United States both now timely appeal.

II

The United States argues that the district court erred by declaring the DOT regulatory scheme arbitrary and capricious.⁶

A

DOT was required to issue regulations to make "key stations" readily accessible to and useable by persons with visual impairments. See 42 U.S.C. § 12147(b)(1); id. §§ 12134(a), 12143, 12149, 12164. The United States argues that DOT has, in fact, done so. We agree; the DOT regulations are not arbitrary or capricious because the DOT did address the needs of those with visual disabilities, although perhaps not to the level the transit riders would have preferred.

DOT regulations address these needs, in part, through a performance standard. The Board had explicitly included in ADAAG a provision requiring facilities to be designed to minimize the distance which wheelchair users and other persons who cannot negotiate steps may have to travel compared to the general public. The performance standard addresses "persons who cannot negotiate steps," and the Board enacted the performance standard to aid the visually disabled. See 56 Fed. Reg. 45,500, 45,504 (Sept. 6, 1991) ("The[preliminary rules] required designers to lay out stations in a straightforward manner, both to reduce the distance a person with a disability would need to travel and to encourage consistency in design to assist all persons, but especially persons with cognitive, visual or stamina-limiting disabilities to locate various elements expeditiously." (emphases added)). Earlier, the Board considered whether "steps should have contrasting nosings or thread markings" but concluded that it was "not aware of any research that" supported such a recommendation. 56 Fed. Reg. 35,408, 35,432 (July 26, 1991). Consistent with the Board's decisions, DOT included the performance standard in its regulations, but did not require contrasting nosings or thread markings.

Furthermore, the DOT regulations require many other features to aid those with visual disabilities. For instance, signs used to indicate the direction of the accessible route must use a wheelchair icon and meet certain typeface requirements. Id. at 45,510. Certain steps to minimize glare are required, id., and tactile warnings must be placed...