Students of California School for the Blind v. Honig, 84-1506

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before CHOY, PREGERSON, and REINHARDT; PREGERSON
• Citation: 736 F.2d 538
• Parties: 18 Ed. Law Rep. 260, 15 Fed. R. Evid. Serv. 1802 STUDENTS OF CALIFORNIA SCHOOL FOR THE BLIND, et al., Plaintiffs-Appellees, v. Bill HONIG, in his capacity as Superintendent of Public Instruction of the State of California, et al., Defendants-Appellants.
• Docket Number: No. 84-1506,84-1506
• Decision Date: 29 June 1984

Page 538

736 F.2d 538

18 Ed. Law Rep. 260, 15 Fed. R. Evid. Serv. 1802

STUDENTS OF CALIFORNIA SCHOOL FOR THE BLIND, et al., Plaintiffs-Appellees, v. Bill HONIG, in his capacity as Superintendent of Public

Instruction of the State of California, et al.,

Defendants-Appellants.

No. 84-1506.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 16, 1984.

Decided June 29, 1984.

Dennis Eckhart, Deputy Atty. Gen., Sacramento, Cal., for defendants-appellants.

Armando M. Menocal, III, Public Advocates, Inc., San Francisco, Cal., for plaintiffs-appellees.

On Appeal from the United States District Court for the Eastern District of California.

Before CHOY, PREGERSON, and REINHARDT, Circuit Judges.

PREGERSON, Circuit Judge.

This law suit concerns the seismic safety of the new Fremont campus of the California School for the Blind. The testimony of a court-appointed expert convinced the district court that additional tests were needed to determine the seismic safety of the Fremont school. The court entered a preliminary injunction ordering the state defendants to perform the additional tests or to close the school. We affirm.

I. Statement of Facts

This litigation arose when the California Department of Education decided to move its residential school for the blind from Berkeley to Fremont. The students sought to block the move. In June 1980, they brought suit in federal court against California educational authorities under the Education for All Handicapped Children Act of 1975 (codified at 20 U.S.C. Secs. 1232, 1401, 1405, 1406, 1411-1420 and 1453 (1983)), Sec. 504 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. Sec. 794 (1982)), and 42 U.S.C. Sec. 1983. The students challenged the move on a procedural ground, alleging that the state defendants failed to give proper notice of a change in the students' educational placement. The students also challenged the move on the substantive grounds that the facilities and community in Fremont were inappropriate for education of the blind. Among the many reasons against the move set out in the complaint were allegations that the Fremont site was an earthquake-prone, dangerous area.

In August 1980, the district court certified a plaintiff class of all present and future students at the school and their parents and guardians. The district court temporarily enjoined the move to Fremont pending formal notice to each parent or guardian and a hearing for those requesting it. Some parents objected to the possibility that no special school for the blind would be available if the Fremont move was blocked. The district court later modified its order and allowed the school to open.

The seismic safety claims became a major focus of the law suit at the pretrial stage. In the pretrial order, the students claimed for the first time that the state defendants had violated California Education Code provisions relating to the seismic safety of school sites. The students urged the court to exercise pendent jurisdiction over state law seismic safety claims. The state defendants argued that pendent jurisdiction was inappropriate because the seismic claims had no common nucleus of operative fact with the educational challenges to relocating the school. The district court did not decide to entertain the seismic safety claims until the trial was underway. When the court announced its decision to hear the claims, it failed to specify whether it would consider the claims under federal question jurisdiction or as pendent state law claims.

The trial began on March 31, 1981 and consumed 48 court days. Many experts testified on the seismic safety issues, and their testimony was highly contradictory. On January 19, 1982 the court orally announced a decision. The court found in favor of the state defendants on the claims relating to the quality of education at the new Fremont campus. The court also found that it was unable to decide the seismic safety claims on the basis of evidence presented at trial. The court then sua sponte reopened the case and stated its intention to appoint a neutral expert to determine whether the state defendants had adequately tested the Fremont campus for seismic safety. The court ultimately selected Dr. Richard Jahns, former Dean of Stanford University's Earth Sciences Department, to serve as the neutral expert.

The state defendants objected to the reopening procedure, to the court's choice of expert, and to the way the court instructed the expert. The state defendants refused to post its half of the expert's fee, which caused the district court to enter a preliminary injunction preventing the state defendants from using the Fremont campus until the money was posted. The state defendants appealed to this court, and asked for a stay of the injunction pending appeal. This court denied the stay, and the state defendants withdrew the appeal and posted the money.

When his study was completed, Dr. Jahns testified that the seismic studies of the site were inadequate because they did not provide enough information to evaluate the school's physical safety. The state defendants then made an offer of proof to rebut Dr. Jahns' testimony, but the district court rejected the offer as untimely. The court entered findings of fact and conclusions of law which found that California's pre-construction seismic safety investigation was inadequate. The court then issued a preliminary injunction ordering the state defendants to conduct additional geological tests (under the supervision of Dr. Jahns as special master) or to close the Fremont campus. The tests will cost about $200,000.

The state defendants brought this appeal under 28 U.S.C. Sec. 1292(a)(1) (1982). They applied to this court for a stay of the district court's order pending appeal, which we denied. The Supreme Court also refused to stay the district court's order requesting additional geological tests. The parties joined in a motion to expedite the appeal, which we granted.

On this appeal, the state defendants argue that:

(1) the preliminary injunction violates the Eleventh Amendment;

(2) the students' seismic safety claims are not cognizable under federal law;

(3) the district court's finding that seismic testing of the Fremont site was inadequate is clearly erroneous; and

(4) the district court abused its discretion in reopening the case, appointing a neutral expert, and rejecting the state defendants' offer of proof in rebuttal.

II. Standard of Review

Our standard of review depends on whether the district court's order should be characterized as a preliminary or as a permanent injunction. The court styled its order as a preliminary injunction, an intermediate step to an ultimate determination whether the Fremont campus is either seismically safe or unsafe. The state defendants argue that the district court's injunction is an interlocutory, but permanent, injunction that requires a more exacting review than that accorded a preliminary injunction. See, e.g., Smith v. Vulcan Iron Works, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810 (1897).

In Smith, the trial court had made a final determination on the merits in awarding injunctive relief, and all that remained for the court to do was to calculate damages. This case is distinguishable. The essence of the district court's order is preliminary, not final. The order prevents the state defendants from using the Fremont campus unless certain geological tests are performed. The tests will determine once and for all whether the campus is seismically safe. The liability of the state defendants will not be finally decided unless and until the tests are performed.

Because we conclude that the order on appeal is a preliminary injunction, our review is necessarily abbreviated. "A court of appeals, like a district court, is not required to resolve doubtful or difficult questions of law at this preliminary stage." Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984), partial stay granted, Heckler v. Lopez, --- U.S. ----, 104 S.Ct. 2164, 80 L.Ed.2d 548 (1984). We will reverse the district court only if we find that it abused its discretion in granting the preliminary injunction. Abuse of discretion is shown if "the district court's decision was based on an error of law or on a clearly erroneous finding of fact." Lopez v. Heckler, 725 F.2d at 1497 (citations omitted).

III. The Standard for Granting a Preliminary Injunction

We note as a threshold matter that the district court applied the proper legal standard for granting a preliminary injunction. In its Memorandum of Decision filed August 17, 1982, the district court found that the appellants' contentions raised serious questions regarding the seismic safety of the Fremont facility and that the dangers to the students if they remained at the facility decidedly outweighed the hardships the state defendants would sustain if additional seismic tests were ordered. In this circuit, a preliminary injunction is properly granted if the moving party has demonstrated "either a combination of probable success on the merits and a possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the moving party's favor." Beltran v. Myers, 677 F.2d 1317, 1320 (9th Cir.1982) (emphasis in original). The "balance of hardships" is a critical element in justifying a preliminary injunction, and the public interest is also an important factor strongly to be considered. See Lopez v. Heckler, 725 F.2d at 1498 (citing extensive authority).

In the instant case, the state defendants do not argue that the balance of hardships fails to tip sharply in favor of the appellants or that the preliminary injunction is not in the public interest. The tests ordered by the district court will cost the state approximately $200,000. Weighed against that relatively small sum is potentially the safety of blind and multi-handicapped students. We agree with the district court that under the circumstances...