Keirnan v. Utah Transit Authority, 02-4098.

• Decision Date: 12 August 2003
• Docket Number: No. 02-4098.,02-4098.
• Citation: 339 F.3d 1217
• Parties: Paula KEIRNAN, individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant, v. UTAH TRANSIT AUTHORITY, a Utah DBA and special transportation district; John M. Inglish, UTA Executive Director; Orrin T. Colby, Jr.; William R. Williams; Necia Christensen; Terry Diehl; Biao Chang; Walter D. Talbot; Monta Rae Jeppson; John B. Updike; Howard Rigtrup; Steven K. Randall; Robert W. Davis; D. Brent Hales, Members, UTA Board of Trustees, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

339 F.3d 1217

Paula KEIRNAN, individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant, v. UTAH TRANSIT AUTHORITY, a Utah DBA and special transportation district; John M. Inglish, UTA Executive Director; Orrin T. Colby, Jr.; William R. Williams; Necia Christensen; Terry Diehl; Biao Chang; Walter D. Talbot; Monta Rae Jeppson; John B. Updike; Howard Rigtrup; Steven K. Randall; Robert W. Davis; D. Brent Hales, Members, UTA Board of Trustees, Defendants-Appellees.

No. 02-4098.

United States Court of Appeals, Tenth Circuit.

August 12, 2003.

John Pace (Robert B. Denton and Sonia K. Sweeney with him on the briefs) of Disability Law Center, Salt Lake City, UT, for Plaintiff-Appellant.

Scott A. Hagen (James S. Jardine, Robert O. Rice, and D. Zachary Wiseman with him on the brief) of Ray, Quinney & Nebeker, Salt Lake City, UT, for Defendants-Appellees.

Before HARTZ and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

McKAY, Circuit Judge.

Appellant Keirnan has been an unconditionally eligible paratransit rider pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131, et seq.,¹ for the past four years. She has been riding Utah Transit Authority (UTA) paratransit for these past four years without incident. Appellant uses an electric wheelchair which weighs 612 pounds when occupied and is longer than forty-eight inches when her leg rests are included in the length. Appellant's leg rests are extended because she is unable to bend her knees. UTA's entire paratransit fleet is equipped to handle larger mobility devices such as Appellant's.

In December 2001, for reasons not fully apparent in the record, UTA issued notice that, effective March 2002,² it was terminating the paratransit eligibility of all otherwise eligible paratransit riders whose mobility devices exceeded the dimensions of a "common wheelchair."³ Of the approximately 6,500 UTA paratransit riders, approximately thirty have had their eligibility terminated due to mobility device size — that is, less than one-half of one percent. Appellant is one of these thirty riders. Her 612-pound wheelchair exceeds the weight restriction by twelve pounds. Additionally, her device exceeds the forty-eight-inch length restriction when her leg rests are included in the length. Therefore, Appellant, an otherwise qualified individual with a disability, is now ineligible for paratransit services because of the new size and weight restrictions.

UTA has been operating under the ADA and United States Department of Transportation (DOT) standards since their inception. As detailed above, for reasons unclear in the record, UTA decided to adopt its own standards which are reflected in the service change at issue. As a basis for this change, UTA used minimum requirements which are set forth in the DOT regulations. The DOT does not purport to establish maximums or other restrictions based on size and weight of a mobility device.

Title II of the ADA requires public transit authorities to provide people with disabilities paratransit services that are "comparable" to those provided to others on the fixed route system. The services required by the ADA are those that conform to the service criteria developed by the DOT. The DOT promulgated regulations dealing both with rider eligibility and service criteria. Among the DOT's service criteria are the definitions of "wheelchair" and "common wheelchair." 49 C.F.R. § 37.3 (2002). The regulations further state that "[a]ll common wheelchairs and their users shall be transported." 49 C.F.R. § 37.165(b) (2002).

In an Interpretative Guidance, the DOT unequivocally stated that mobility devices that exceed the common wheelchair standard do not have to be carried. The Interpretative Guidance states that "[d]evices used by individuals with disabilities that do not fit this [common wheelchair] envelope, (e.g., ma[n]y "gurneys") do not have to be carried."⁴ 49 C.F.R. § 37, App. D (2002).

Appellant filed a motion in the district court to enjoin UTA's service change which limits the size and weight of wheelchairs carried by its transit system to the common wheelchair standard as defined in 49 C.F.R. § 37.3. Appellant also filed a motion for a preliminary injunction. The district court denied Appellant's motion for a preliminary injunction; Appellant appeals this denial.

We will only set aside a denial of a preliminary injunction "if it is based on an error of law or constitutes an abuse of discretion." Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 354 (10th Cir.1986); see also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1243 (10th Cir.2001). A preliminary injunction serves to preserve the status quo pending a final determination of the case on the merits. Tri-State, 805 F.2d at 355. "In issuing a preliminary injunction, a court is primarily attempting to preserve the power to render a meaningful decision on the merits." Id. In order to obtain a preliminary injunction, Appellant must show:

(1) [She] will suffer irreparable injury unless the injunction issues; (2) the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits.

Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992).

It does not appear from its Order of June 7, 2002, that the district court specifically ruled on the first three factors. However, at the hearing, the court did state that the first three factors are "probably not where this issue turns. I think if you can persuade me that you have a likelihood of success on the merits, then I would be inclined to grant an injunction." App. of Exhibits, Vol. II, at 382. In its denial of a preliminary injunction, the district court seemed so persuaded that Appellant did not have a substantial likelihood of success on the merits that it did not take a clear position on the first three factors.

That being said, we agree with the district court that the fourth factor is determinative. The first three factors weigh heavily in Appellant's favor. The first factor, that "[she] will suffer irreparable injury unless the injunction issues," has been demonstrated by Appellant in her briefs and at the hearing. Resolution Trust, 972 F.2d at 1198. She will lose the ability to attend religious services and medical appointments. She will also lose contact with friends and family. Appellant and other paratransit riders affected by the service change will be incapable of living their lives in the independent fashion to which they have become accustomed. Additionally, because Appellant is not alleging intentional discrimination or out-of-pocket expenses, damages might not be available should a court later find in her favor on the merits. See Tri-State, 805 F.2d at 355 ("Injury is generally not irreparable if compensatory relief would be adequate."); see also App. of Exhibits, Vol. II, at 378-80; Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir.1999) (compensatory damages not available under section 504 of the Rehabilitation Act unless intentional discrimination); Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir.1997) (compensatory damages for mental and emotional injury not available under ADA absent intentional discrimination).⁵

The second factor, that "the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party," also supports Appellant's position. Resolution Trust, 972 F.2d at 1198. Surely Appellant will suffer a great deal more at the loss of her independence than UTA will suffer in continuing to provide service to Appellant and others as it has done for years. Additionally, while UTA stresses linkage concerns, UTA has offered no documented information regarding the severity of these concerns.⁶ Furthermore, this is UTA's sole offer of negative impact on it if a preliminary injunction were to issue.

UTA also stresses that it should not be penalized for merely complying with DOT regulations. However, we are at the preliminary injunction stage. "[I]n deciding whether a preliminary injunction should issue, we are only examining the possible course of events between the present time and the conclusion of the underlying litigation." Tri-State, 805 F.2d at 356. UTA has the opportunity to make its argument on the merits at the district court level. Additionally, UTA would simply be required to provide the service it has provided for years without significant documented burden until a final decision on the merits.

The third factor, which takes into account the public interest, also weighs in Appellant's favor. A preliminary injunction would simply maintain the status quo pending a final determination on the merits. Because UTA has been providing this service without any documented detriment to the public, we fail to see how a temporary extension would harm the public interest in any capacity. Appellee is unable to point to anything adverse to the public interest should the preliminary injunction issue.

Because the first three factors favor Appellant, we must turn to the final factor in order to determine if a preliminary injunction should issue.⁷ "The fourth prerequisite for obtaining a preliminary injunction is a showing of a likelihood of success on the merits." Tri-State, 805 F.2d at 358. It is unclear from the hearing and the district court's order whether the court applied the correct legal standard in its determination of this factor. "The Tenth Circuit has adopted the Second Circuit's liberal definition of the `probability of success' requirement." Otero Savings & Loan Ass'n v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir.1981). We have previously stated:

When a party seeking a preliminary injunction satisfies the first three requirements, the standard...