Tandy v. City of Wichita

• Decision Date: 25 August 2004
• Docket Number: No. 02-3329.,No. 02-3340.,02-3329.,02-3340.
• Citation: 380 F.3d 1277
• Parties: Sylvia TANDY; Naomi Passman; Jeff Farney; Betty Allen; Joel Goertz; Joann Donnell; Victor Beltz; Ron Garnett; Mike Goupil; Carolyn Jeffries, Plaintiffs-Appellants-Cross-Appellees. v. CITY OF WICHITA, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.3d 1277

Sylvia TANDY; Naomi Passman; Jeff Farney; Betty Allen; Joel Goertz; Joann Donnell; Victor Beltz; Ron Garnett; Mike Goupil; Carolyn Jeffries, Plaintiffs-Appellants-Cross-Appellees. v. CITY OF WICHITA, Defendant-Appellee-Cross-Appellant.

No. 02-3329.

No. 02-3340.

United States Court of Appeals, Tenth Circuit.

August 25, 2004.

Appeal from the United States District Court for the District of Kansas, John Thomas Marten, J.

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Kirk W. Lowry, Topeka Independent Living Resource Center, Inc., Topeka, KS, for Plaintiffs-Appellants-Cross-Appellees.

Jay C. Hinkel, Assistant City Attorney (Michael L. North, Assistant City Attorney, with him on the brief), Wichita, KS, for Defendant-Appellee-Cross-Appellant.

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs-appellants Betty Allen, Victor Beltz, Jo Ann Donnell, Jeff Farney,¹ Ron Garnett, Mike Goupil, and Carolyn Jeffries (collectively "appellants") sued, alongside Sylvia Tandy, Naomi Passman, and Joel Goertz (collectively "cross-appellees"), defendant-appellee City of Wichita ("Wichita") in the United States District Court for the District of Kansas. Wichita operates the Wichita Metropolitan Transit Authority ("Wichita Transit"). Appellants alleged violations of 29 U.S.C. § 794 ("Rehabilitation Act") and of Title II of the Americans with Disabilities Act ("ADA"). Almost all of the appellants were testing Wichita Transit's compliance with the Rehabilitation Act and the ADA and did not reside in the Wichita area. Appellants alleged that Wichita Transit's fixed-route bus system was intentionally inaccessible to and unusable by people with disabilities.² They claimed that Wichita's conduct caused them humiliation, mental anguish, and frustration.

Each appellant sought injunctive relief, declaratory relief, compensatory damages, punitive damages, costs, and attorneys' fees. The parties filed cross-motions for summary judgment. The district court concluded that the cross-appellees have standing to pursue their claims. The district court, however, dismissed appellants' claims on the grounds that they each lacked standing to seek any form of relief. Appellants argue that the district court erred by analyzing their standing in gross, and should instead have separately analyzed their standing in relation to each claim for relief. They further argue that the district court erred in concluding that they lack standing to sue for damages, injunctive relief, and declaratory relief.

The district court partially granted cross-appellee Tandy's motion for summary judgment. It issued an injunction against Wichita Transit's continued use of its policy of giving drivers the discretion to deny wheelchair-bound passengers access to an accessible bus on an inaccessible route, reasoning that this policy violates the ADA. Wichita cross-appeals the grant of the injunction, arguing that the injunction was unnecessary and is now moot because Wichita Transit's fixed-routes were scheduled to become, and have become, fully accessible to wheelchair users as of April 2002. Wichita does not appeal the district court's conclusion that its driver-discretion policy violated the ADA.

This court exercises jurisdiction over these appeals pursuant to 28 U.S.C. § 1291. In appeal No. 02-3329, this court DISMISSES in part for lack of Article III jurisdiction, AFFIRMS in part and REVERSES in part the district court's dismissal of appellants' claims for a lack of standing, and REMANDS for further proceedings not inconsistent with this opinion. In appeal No. 02-3340, this court DISMISSES Wichita's cross-appeal for lack of Article III jurisdiction.

II. BACKGROUND

The Topeka Independent Living Resource Center ("The Resource Center") is an organization which provides both direct and indirect advocacy services to the disabled community. In response to complaints about the accessibility of Wichita Transit's fixed-route bus system, The Resource Center held a training session on March 22, 2001, and advised the attendees to attempt to ride Wichita Transit's fixed-route buses and to document any problems. The purpose of these test rides was to determine Wichita Transit's compliance with the ADA and the Rehabilitation Act. Among the sixty potential testers who attended this meeting were all the plaintiffs in this lawsuit.

On the morning of March 23, 2001, fifty-eight or fifty-nine of the attendees, including all of the plaintiffs in this action, attempted to access Wichita Transit's fixed-route buses in order to test the system for accessibility. After conducting their test, the testers attended a debriefing meeting at the Hyatt Hotel to discuss their experiences. Beyond testing the buses for accessibility, appellants also attempted to use the buses to reach the debriefing meeting. Those who could not use the buses to reach this meeting had to be transported by other participants. Most appellants submitted affidavits detailing their individual experiences with Wichita Transit, including the events of March 23, 2001. These affidavits and other evidence constitute the record in this case.

Appellant Allen, who uses a power chair as a mobility aid, tested a fixed-route bus on March 23, 2001, and was delayed because of a malfunctioning wheelchair lift ("lift"). Wichita Transit has had numerous lift failures throughout the years. Evidence shows that a frequent rider experienced lift failures during twenty to thirty percent of his rides between 1994 and 1998. Allen testified that she intends to use Wichita Transit's fixed-route bus service several times per year for both personal transportation and to "test it for access and compliance with the ADA and the Rehabilitation Act" and, during May 2002, "to check on whether the new buses have arrived and are accessible."

Appellant Beltz used a power chair as a mobility aid. While conducting a test on March 23, 2001, Beltz was denied access to a bus on a fixed-route which Wichita Transit had designated as inaccessible to wheelchair-bound riders ("inaccessible route").³ Beltz testified that he intended to test Wichita Transit's fixed-route bus service several times per year.

Appellant Donnell is blind and reads Braille. On March 23, 2001, she took a test ride on a Wichita Transit fixed-route bus. The bus driver did not offer her a seat designated for disabled individuals and did not call out stops. At the transit center where passengers access buses, Donnell found no Braille schedules or directories. She found Braille signage only on the pillars. On a different occasion Donnell read some of Wichita Transit's Braille schedules and claimed that they made no sense. Donnell testified that she intends to test Wichita Transit's fixed-route bus service several times per year.

A driver's failure to call out stops or to offer a designated seat on the bus is against Wichita Transit's policy and training. Another blind user of Wichita Transit, however, filed complaints stating that fixed-route bus drivers regularly fail to call out stops. In March 2001, Braille materials were kept at the operations center and could be delivered to the transit centers in under five minutes.⁴

Appellant Garnett uses a power chair as a mobility aid. Some evidence in the record indicates that Garnett was one of the testers who attempted to board Wichita Transit's fixed-route buses on March 23, 2001. Garnett was denied a ride because of a broken lift. Unlike the other appellants, Garnett did not file an affidavit stating an intent to use Wichita Transit's fixed-route buses in the future.

Appellant Goupil uses a manual wheelchair as a mobility aid. On March 23, 2001, Goupil conducted a test on a fixed-route bus and was denied a ride because of a malfunctioning lift. Goupil testified that he intends to test Wichita Transit's fixed-route service several times per year starting in May 2002.

Appellant Jeffries is deaf and uses a Telecommunications Device for the Deaf ("TDD") to communicate by phone. On April 5, 2001, and several times thereafter, Jeffries tested Wichita Transit's TDD line and found that it was not working. The TDD line did not work when others attempted to call it between January and August of 2001.⁵ Jeffries testified that she intends to call Wichita Transit's TDD line once per month "to make sure it is in working order."

The appellants and cross-appellees produced evidence that, at the commencement of this action in April 2001, it was known Wichita Transit had a history of unreliable service to disabled riders. Furthermore, in the 1980s, Wichita Transit bolted shut the lifts on its buses because it did not want to maintain them. In the ten years prior to the commencement of this action, Wichita Transit received over $50 million from the Federal Transit Authority to buy and maintain handicap accessible buses, to operate its transit system, and to build accessible facilities. At the time this case was filed in April 2001, Wichita Transit still designated several of its fixed bus routes as inaccessible.⁶ In the pretrial order, Wichita Transit stipulated that "[i]t is and has been the policy of Wichita Transit to designate certain bus routes as not accessible.... This designation allows the City to utilize buses not equipped for handling disabled passengers for the full useful life of those vehicles." Prior to the commencement of this suit, Wichita Transit had ordered buses which were expected to make its fixed routes 100% accessible to mobility impaired riders.⁷ These buses were scheduled to be delivered by April 2002.

When this case was commenced, Wichita Transit gave its drivers discretion to refuse to deploy lifts for disabled persons who attempted to board an accessible bus on an inaccessible route ("driver-discretion policy").⁸

Wichita Transit trained its bus drivers to call out stops at major intersections, to operate lifts, to tie...