Nat'l Fed'n of Blind of Missouri v. Cross

• Decision Date: 13 May 1999
• Docket Number: DEFENDANTS-APPELLEES,NOT-FOR-PROFIT,No. 98-3789,PLAINTIFF-APPELLANT,T-FOR-PROFIT,98-3789
• Citation: 184 F.3d 973
• Parties: (8th Cir. 1999) NATIONAL FEDERATION OF THE BLIND OF MISSOURI, A MISSOURICORPORATION,, GARY L. WUNDER, AN INDIVIDUAL; EDWIN C. BRYANT, AN INDIVIDUAL; JOHN FORD, AN INDIVIDUAL, PLAINTIFFS, NATIONAL FEDERATION OF THE BLIND, INC.,, v. DENISE CROSS, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF FAMILY SERVICES OF THE STATE OF MISSOURI; SALLY L. HOWARD, IN HER OFFICIAL CAPACITY AS DEPUTY DIRECTOR AND SUPERVISOR OF THE REHABILITATION SERVICES FOR THE BLIND OF THE STATE OF MISSOURI,, MAE E. WESTON, IN HER OFFICIAL CAPACITY AS DISTRICT SUPERVISOR OF THE NORTH ST. LOUIS OFFICE OF THE REHABILITATION SERVICES FOR THE BLIND, DEFENDANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 973

184 F.3d 973 (8th Cir. 1999)

NATIONAL FEDERATION OF THE BLIND OF MISSOURI, A MISSOURI NOT-FOR-PROFIT CORPORATION, PLAINTIFF-APPELLANT, GARY L. WUNDER, AN INDIVIDUAL; EDWIN C. BRYANT, AN INDIVIDUAL; JOHN FORD, AN INDIVIDUAL, PLAINTIFFS, NATIONAL FEDERATION OF THE BLIND, INC., PLAINTIFF-APPELLANT, v. DENISE CROSS, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF FAMILY SERVICES OF THE STATE OF MISSOURI; SALLY L. HOWARD, IN HER OFFICIAL CAPACITY AS DEPUTY DIRECTOR AND SUPERVISOR OF THE REHABILITATION SERVICES FOR THE BLIND OF THE STATE OF MISSOURI, DEFENDANTS-APPELLEES, MAE E. WESTON, IN HER OFFICIAL CAPACITY AS DISTRICT SUPERVISOR OF THE NORTH ST. LOUIS OFFICE OF THE REHABILITATION SERVICES FOR THE BLIND, DEFENDANT.

No. 98-3789

U.S. Court of Appeals, Eighth Circuit

Submitted: May 13, 1999

Decided: July 12, 1999

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Daniel Frank Goldstein, Baltimore, MD, argued (C. Christopher Brown, Baltimore, MD and Mary Ann Wymore, St. Louis, MO, on the brief), for Plaintiffs-Appellants.

Paul Michael Rauschenbach, Assistant Attorney General, St. Louis, MO, argued, for Defendants-Appellees.

Before Loken, Hansen, and Murphy, Circuit Judges.

Murphy, Circuit Judge.

The Rehabilitation Services for the Blind (RSB) is a Missouri state agency which receives federal funding and which developed a policy prohibiting its employees from distributing literature or discussing services offered by consumer groups such as the National Federation of the Blind (NFB) and its local affiliate, National Federation of the Blind of Missouri (NFB-Mo). NFB and NFB-Mo brought this action against state officials for violating the Rehabilitation Act, the First Amendment, and the Equal Protection clause. The district court¹ granted summary judgment to the defendants after finding that NFB and NFB-Mo lacked standing to pursue their claims under the Rehabilitation Act and that the other claims failed on the merits. NFB and NFB-Mo appeal from the judgment, and we affirm.

I.

RSB is a vocational rehabilitation agency serving blind Missourians. It is administered by the Missouri Division of Family Services and receives funding under the Rehabilitation Act, 29 U.S.C. §§ 720-796(l). RSB staff teach independent living skills, provide mobility training, assist with job searches, and provide counseling. Denise Cross is the Director of the Division of Family Services of the State of Missouri and in this capacity supervises the RSB. Sally L. Howard is the Deputy Director and Supervisor of RSB and is responsible for managing the agency's seven district offices throughout Missouri.

NFB and NFB-Mo are not for profit membership organizations which aim to promote integration of the blind into society on equal terms with the sighted. They offer support groups and services through volunteer networks, they distribute educational literature, and they engage in advocacy regarding issues of concern to blind persons. Their aggressive advocacy and support programs are built on the philosophy that blindness is a characteristic, not a disability. They oppose programs that they feel emphasize the limitations of blindness.

The American Council of the Blind (ACB) and its affiliate, the Missouri Council of the Blind (MCB), are also not for profit organizations which advocate for the blind. They formed after a philosophical disagreement among NFB members led some to break away and start a new volunteer organization. Certain members of the Missouri chapter of the NFB were among those who encouraged the development of a spin-off organization. ACB and NFB and their local affiliates, MCB and NFB-Mo, promote differing philosophical approaches to blindness and compete for members, and there apparently continues to be some hostility between the competing groups. RSB considers both NFB and ACB and their local affiliates to be "consumer organizations" because their charters require that they be run by members of the blind community.

In the summer of 1994, MCB complained to the RSB that some of its counselors had been actively recruiting members for NFB-Mo. Then RSB director David Vogel wanted to avoid any perception in the blind community that RSB was not acting impartially, so he restricted the extent to which its counselors and other employees could tell clients about materials and services provided by MCB and NFB. He issued a policy in September 1994, instructing agency representatives not to suggest or recommend one consumer group over another or to reveal whether they belonged to either. The RSB central office provided each new client with some limited information about the consumer organizations and their phone numbers, but RSB staff were generally prohibited from distributing literature produced by the organizations. Although counselors could potentially receive special permission to distribute materials or suggest services provided by one consumer group or the other, it does not appear that this ever occurred.

Sally Howard took over as director of RSB in April 1995, and she reaffirmed and strengthened the policy regarding consumer groups. She circulated a new memo in July 1995 supplementing Vogel's initial memorandum on the subject. This memo acknowledged that under existing policy, RSB staff were prohibited from directly passing out any kind of consumer group literature to clients, but also recognized that staff might often have clients who would benefit from the resources available from the consumer groups. The memo instructed staff to inform their blind clients of the existence of the two organizations and ask if they would like to sign a release of information to both groups. The names of clients who signed the release would be forwarded to both NFB-Mo and MCB, who could then inform the individuals about resources they had to offer.

Although defendants contend that RSB staff members retained some authority to inform clients about particular services, this issue is contested. In reviewing a summary judgment, all reasonable inferences from the facts must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We therefore assume that literature produced by NFB and NFB-Mo can not be displayed in the RSB lobby or otherwise distributed by the agency, and that RSB staff can no longer inform individual clients about any specific relevant resource offered by either organization.

NFB-Mo objected to the RSB policy on the grounds that it chilled its speech and made it more difficult for it to reach members of the blind community. It apparently felt that the policy weakened its message to its competitive disadvantage in respect to MCB, which has a different approach to blindness.

NFB-Mo and three of its members filed this action in August of 1996. They named as defendants Carmen K. Schulze, then director of the Missouri Division of Family Services, Sally L. Howard, director of RSB, and Mae E. Weston, an RSB district supervisor. The plaintiffs sought a temporary restraining order (TRO) and preliminary and permanent injunctive relief to bar these state officials from implementing the policy prohibiting RSB staff from handing out NFB and NFB-Mo publications or referring RSB clients to NFB-Mo sponsored programs or services.

On August 27, 1996 the district court² heard arguments on the TRO motion and denied it on the grounds that NFB-Mo had failed to demonstrate irreparable harm. MCB moved to intervene in the proceedings, but no action was then taken on its motion. Evidentiary hearings were held in October 1996 on the request for a preliminary injunction, and a different district court Judge³ ruled that NFB-Mo had failed to establish irreparable harm and denied the request. MCB's request to intervene was also subsequently denied. NFB-Mo, through new attorneys, filed an amended complaint. This new complaint dropped the individual members as plaintiffs, but added NFB-Mo's parent organization, NFB. The amended complaint also eliminated Mae E. Weston as a defendant. In count I plaintiffs request relief under 42 U.S.C. § 1983 to redress alleged violations of the Rehabilitation Act. They contend that the RSB policy violated the agency's statutory duties under the Rehabilitation Act to establish programs that make "'maximum utilization' of'public or other vocational or technical training programs or other appropriate resources in the community,'" to maintain information referral programs and provide referrals to other agencies when appropriate, and to provide programs that enhance the individual client's choice and control in determining rehabilitation goals and objectives. Count II alleges that Schulze and Howard violated the plaintiffs' Equal Protection rights by permitting other similarly situated non- governmental organizations greater access to RSB and its clients. Counts III and IV raise two First Amendment challenges. The complaint requests a declaration that RSB's policies are unconstitutional or otherwise illegal and a permanent injunction prohibiting defendants from implementing the challenged policies. It also sought injunctive relief requiring that defendants establish programs to refer clients to community resources, including those offered by the plaintiffs. Finally, it requests attorney fees and costs and all other relief deemed appropriate.

Each side moved for summary judgment, and the district court granted the defendants' motion and dismissed all claims. The court found that NFB and NFB-Mo did not have jus tertii standing to bring their Rehabilitation Act claims because "it is not clear that the blind community, whose rights NFB is seeking to assert, is suffering any impairment of its enjoyment of services under the Rehabilitation Act." It also ruled that plaintiffs had not made out viable claims under the First Amendment or Equal Protection clause.

NFB and NFB-Mo...