Molloy v. Metropolitan Transp. Authority, 2499

• Decision Date: 05 September 1996
• Docket Number: No. 2499,D,2499
• Citation: 94 F.3d 808
• Parties: 5 A.D. Cases 1499, 8 NDLR P 342 Edward MOLLOY, The Long Island Center for Independent Living, Inc., The Helen Keller National Center for Deaf-Blind Youths and Adults, The American Council of the Blind of New York, Inc., Long Island Chapter, and Irene Ciorra, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION AUTHORITY and Long Island Railroad, Defendants-Appellants. ocket 96-7786.
• Court: U.S. Court of Appeals — Second Circuit

Page 808

94 F.3d 808

5 A.D. Cases 1499, 8 NDLR P 342

Edward MOLLOY, The Long Island Center for Independent Living, Inc., The Helen Keller National Center for Deaf-Blind Youths and Adults, The American Council of the Blind of New York, Inc., Long Island Chapter, and Irene Ciorra, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION AUTHORITY and Long Island Railroad, Defendants-Appellants.

No. 2499, Docket 96-7786.

United States Court of Appeals Second Circuit.

Argued Aug. 5, 1996.

Decided Sept. 5, 1996.

Richard J. Holwell, New York City (Glenn M. Kurtz, White & Case, New York City, Roger J. Schiera, LIRR Law Dept., Jamaica, NY, Robert L. Folks, Joel M. Markowitz, Cahn Wishod & Lamb, LLP, Melville, NY, of counsel), for Defendants-Appellants.

Dolores Fredrich, Uniondale, NY (F. Judith Helpworth, Dina Talmor Miller, Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., of counsel), for Plaintiffs-Appellees.

Charles G. Moerdler, Brian M. Cogan, Charles E. Torres, Stroock & Stroock & Lavan, New York City, of counsel, for Amicus Curiae Senator Alfonse M. D'Amato.

Before: CALABRESI and PARKER, Circuit Judges, POLLAK, District Judge. ^*

PARKER, Circuit Judge:

Plaintiffs, a group of individuals and organizations representing the interests of the blind and visually impaired, sought and received an order of the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ) preliminarily enjoining defendants, the Metropolitan Transit Authority ("MTA") and its subsidiary the Long Island Railroad ("LIRR"), from implementing a staff reduction plan in thirty-two LIRR stations. The staff reduction plan, which was implemented to address an annual operating budget deficit of over $30 million, involved removing human ticket clerks from thirty-two low volume LIRR stations. The plan also called for the installation of station doors that will lock and unlock automatically depending on the time of day. The plan also called for the installation of ticket vending machines ("TVMs") in eighteen of the thirty two stations in which TVMs had not already been installed.

Plaintiffs contend that the staff reduction plan violates the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994) ("ADA"). That statute makes it unlawful:

with respect to alterations of an existing station or part thereof in ... commuter rail transportation systems that affect or could affect the usability of the station or part thereof, for the ... person in control of the station to fail to make the alterations in such a manner that, to the maximum extent feasible, the altered portions of the station are readily accessible to and usable by individuals with disabilities....

42 U.S.C. § 12162(e)(2)(B)(i).

The district court issued the preliminary injunction from the bench on May 30, 1996. In its ruling, the district court concluded that plaintiffs showed that they would suffer irreparable harm if the injunction did not issue and that the balance of hardships tipped decidedly in their favor. The district court also concluded that there was a substantial question regarding whether closing ticket offices, removing ticket clerks and replacing them with TVMs are "alterations," such that those aspects of the ticket reduction plan must be executed "in such a manner that, to the maximum extent feasible," the affected stations remained usable by plaintiffs.

The next day defendants moved to reargue the propriety of the injunction, arguing that the district court had employed the wrong standard in deciding to issue the preliminary injunction. Defendants based this argument on New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 n. 7 (2d Cir.1995), in which we noted that the only proper standard for issuing a preliminary injunction which blocked a New York City subway fare increase was (1) a showing of irreparable injury in the absence of the injunction, and (2) the establishment of likelihood of success on the merits.

In Urban League, we held that only the likelihood of success standard was proper because the injunction blocked a "fare increase that was to be implemented in accordance with the special powers of the [New York Transit Authority] as set forth in N.Y.Pub.Auth.Law § 1205(1) (McKinney 1982)." Defendants argued to the district court that the LIRR is similarly authorized pursuant to N.Y.Pub.Auth.L. § 1266 to implement its staffing reduction plan. Therefore, defendants argued, plaintiffs should be required to show the district court a likelihood of success on the merits.

In response, Judge Wexler granted the motion to reargue the injunction, and reaffirmed the injunction's issuance by holding that plaintiffs also had established a likelihood of success on the merits. The district court has thus ruled that both sets of criteria that must be satisfied for a preliminary injunction to issue have been satisfied.

The injunction prohibits the LIRR from implementing its staff reduction "plan as to any of the 32 affected stations," directed the LIRR to reopen seven stations to which the plan had previously been applied, and directed the LIRR to "maintain Long Island Railroad personnel on the platforms" at seven other stations that had previously been affected by the staff reduction plan.

Defendants took this appeal pursuant to 28 U.S.C. § 1292(a)(1).

As explained below, we hold that under the circumstances of this case, plaintiffs were required to show a likelihood of success on the merits and irreparable injury in the absence of the injunction. We also hold that the district court abused its discretion when it concluded that plaintiffs were likely to succeed in establishing that the removal of ticket clerks from stations constitutes an "alteration" under the ADA, and that the plaintiffs would be irreparably harmed by the installation of TVMs. Accordingly, we vacate the injunction.

I. The Standards for Issuing and Reviewing the Issuance of a Preliminary Injunction.

There are generally two standards for issuing a preliminary injunction.

The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.

Able v. United States, 44 F.3d 128, 130 (2d Cir.1995) (per curiam). However, only the "likelihood of success" standard applies when the injunction seeks to prevent government action taken pursuant to statutory authority, which is presumed to be in the public interest. Id. at 131. We have held that certain conduct by New York's public transportation authorities constitutes such governmental action. See Urban League, 71 F.3d at 1036 n. 7.

Here, the MTA's authorizing statute, N.Y.Pub.Auth.Law §§ 1260-1278 (McKinney 1982), specifically authorizes the MTA to collect fares and operate its facilities as the MTA deems convenient. N.Y.Pub.Auth.Law § 1266(2),(3). Consistent with Urban League, we hold that only the likelihood of success standard properly applies here.

We review this issuance of a preliminary injunction for an abuse of discretion. Reuters, Ltd. v. United Press International, Inc., 903 F.2d 904 (2d Cir.1990). Such an abuse occurs when the district court makes an error of law or fact. Id.

II. Whether Staff Reductions Constitute an "Alteration" under the ADA.

The statute at issue here, 42 U.S.C. § 12162(e)(2)(B)(i), only applies to "alterations of an existing station or part thereof." The statute's text thus supports defendants' argument, suggesting that only changes to the station are regulated by the statute.

This interpretation is further supported by the regulations promulgated by the Secretary of Transportation pursuant to 42 U.S.C. § 12164. Those regulations include a definition of "alteration":

Alteration means a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building facility.

49 C.F.R. § 37.3. Literally, an "alteration" is "change" to a "facility." By way of non-exclusive example, the regulation lists only physical modifications of a relatively permanent nature to the facility. Under the common sense approach to interpreting a general provision in the light of a list of specific illustrative provisions, ejusdem generis, we construe the general term (here, "change") to include only things similar to the...