Ivana Kirola, On Behalf of Herself and The Certified Class of Similarly Situated Persons, Plaintiff-Appellant,
City and County of San Francisco; Gavin Newsom, in his official capacity as Mayor; Aaron Peskin, in his official capacity as President of the Board of Supervisors; Jake McGoldrick; Michela Alioto-Pier; Ed Jew; Chris Daly; Sean Elsbernd; Bevan Duffy; Tom Ammiano; Sophie Maxwell; Ross Mirkarimi; Gerardo Sandoval, in their official capacities as members of the Board of Supervisors, Defendants-Appellees.
and Submitted December 14, 2016 San Francisco, California
from the United States District Court for the Northern
District of California, D.C. No. 4:07-cv-03685-SBA Saundra B.
Armstrong, District Judge, Presiding
Wallace (argued), Jennifer A. Uhrowczik, Sarah Colby, and
Mark T. Johnson, Schneider Wallace Cottrell Konecky Wotkyns
LLP, Emeryville, California; Monique Olivier, Duckworth
Peters Lebowitz Olivier LLP, San Francisco, California; James
C. Sturdevant, The Sturdevant Law Firm, San Francisco,
California; Ray A. Wendell, Linda M. Dardarian, and Barry
Goldstein, Goldstein Borgen Dardarian & Ho, Oakland,
California; José R. Allen, Palo Alto, California; for
M. Emery (argued) and Elaine M. O'Neil, Deputy City
Attorneys; Ronald P. Flynn, Chief Deputy City Attorney;
Dennis J. Herrera, City Attorney; Office of the City
Attorney, San Francisco, California; for
Kim and Alexis Alvarez, The Legal Aid Society - Employment
Law Center, San Francisco, California, for Amici Curiae The
Legal Aid Society - Employment Law Center, AIDS Legal
Referral Panel, American Association of People with
Disabilities, API Legal Outreach, California Foundation for
Independent Living Centers, Civil Rights Education and
Enforcement Center, Disability Rights Advocates, Disability
Rights California, Disability Rights Education and Defense
Fund, Disability Rights Legal Center, The Impact Fund,
Independent Living Resource Center San Francisco, National
Disability Rights Network, San Francisco Senior and
Disability Action, and Swords to Plowshares.
J. Poster and Timothy T. Coates, Greines Martin Stein &
Richland LLP, Los Angeles, California, for Amici Curiae
League of California Cities, International Municipal Lawyers
Association, and California State Association of Counties.
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and
Milan D. Smith, Jr., Circuit Judges.
with Disabilities Act
panel affirmed in part and reversed in part the district
court's judgment, after a bench trial, in favor of the
City and County of San Francisco in a class action brought
under Title II of the Americans with Disabilities Act,
alleging that San Francisco's public right-of-way, pools,
libraries, parks, and recreation facilities were not readily
accessible to and usable by mobility-impaired individuals.
in part, the panel held that the plaintiff established
Article III standing to pursue injunctive relief by showing
that she suffered in injury in fact through evidence that she
encountered an access barrier and either intended to return
or was deterred from returning to the facility in question.
The panel held that to establish standing, the plaintiff did
not need to show that she was deprived of meaningful access
to a challenged service, program, or activity in its
entirety; rather, this was the standard for relief on the
merits. The panel held that the plaintiff also established
causation and redressability, and therefore established
standing to challenge barriers at the facilities that she
visited. The panel held that, in addition, the certified
class had standing to challenge the facilities that the
plaintiff did not personally visit.
merits of claims related to newly constructed or altered
facilities, the panel explained that the Architectural and
Transportation Barriers Compliance Board ("Access
Board") produces the Americans with Disabilities Act
Accessibility Guidelines ("ADAAG"), which set a
baseline of nonbinding requirements. The Department of
Justice ("DOJ") then adopts binding regulations
that are consistent with the minimum standards put out by the
Access Board. DOJ's 2010 standards set a timetable
allowing public entities to choose to comply either with the
original 1991 ADAAG standards or with other federal
standards, and San Francisco chose to comply with the 1991
ADAAG standards. These standards include detailed design
guidelines for particular features of facilities, as well as
district court found that the plaintiff had proven that the
City's new or altered facilities departed from ADAAG in
only a few isolated instances. The panel held that, in making
this finding, the district court erred by concluding that
none of the plaintiff's experts was reliable and then
concluding that all of the City's experts were reliable.
The district court's analysis relied on several
regulatory misinterpretations, including its conclusion that
ADAAG did not apply to San Francisco's public
right-of-way, parks, and playground facilities. The panel
held that, even though ADAAG did not include
facility-specific guidelines particular to those types of
facilities, ADAAG's feature-specific requirements
applied. Because the district court's approach to the
plaintiff's experts' credibility was based on legal
errors, the panel remanded for reevaluation of the extent of
merits of claims related to existing facilities, the panel
affirmed the district court's finding that the City's
public right-of-way and "RecPark" programs were
accessible when viewed in their entirety.
panel affirmed in part, reversed in part, and remanded with
instructions for the district court to apply ADAAG as the
panel had interpreted it, reevaluate the extent of ADAAG
noncompliance, and then revisit the question of whether
injunctive relief should be granted.
II of the Americans with Disabilities Act provides that
"no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. §
12132. We address whether the City and County of San
Francisco have complied with their obligations under this
law. In particular, we are concerned with whether San
Francisco's public right-of-way, pools, libraries, parks,
and recreation facilities are readily accessible to and
usable by mobility-impaired individuals.
Ivana Kirola suffers from cerebral palsy and moves within the
city in a wheelchair. A resident of San Francisco, her
ability to move about the city and benefit from its public
services depends in part on the City and County's
compliance with disability access laws.
17, 2007, Kirola filed a putative class action alleging that
the City and County of San Francisco, the Mayor of San
Francisco, and members of the San Francisco Board of
Supervisors (collectively, "the City") had
systematically failed to comply with federal and state
disability access laws, seeking declarative and injunctive
relief. Relevant here, Kirola alleged that the City's
public libraries, pools, Recreation and Parks Department
("RecPark") facilities,  and pedestrian right-of-way
did not comply with Title II of the Americans with
Disabilities Act ("ADA") and related regulations.
7, 2010, the district court certified a class consisting of:
All persons with mobility disabilities who are allegedly
being denied access under Title II . . . due to disability
access barriers to the following programs, services,
activities and facilities owned, operated and/or maintained
by the City and County of San Francisco: parks, libraries,
swimming pools, and curb ramps, sidewalks, crosswalks, and
any other outdoor designated pedestrian walkways in the City
and County of San Francisco.
district court estimated that about 21, 000 persons with
mobility disabilities live in San Francisco. In this lawsuit,
Kirola seeks to advance their important rights.
April and May of 2011, the district court held a five-week
bench trial featuring testimony by 36 different witnesses.
Kirola v. City & Cty. of San Francisco, 74
F.Supp.3d 1187, 1200 (N.D. Cal. 2014). The district court
made the following findings of fact:
Members. Seven class members or mothers of class members
testified, including Kirola. Id. at 1217. Each class
member suffered from a disability and was mobility-impaired.
testified that as a resident of San Francisco, she had
encountered the following access barriers related to the
City's public services:
(1) three stretches of sidewalk containing "bumps,
" (2) a sidewalk where her wheelchair became stuck in a
tree well; (3) one street corner that lacked curb ramps, (4)
one street corner that provided only a single curb ramp, (5)
errant step stools at three of the City's libraries, (6)
three inaccessible pools, and (7) steep paths at one park.
Id. at 1240. The other testifying class members or
their mothers described various other access barriers that
they had encountered while enjoying San Francisco's
public services. Id. at 1217-21.
Infrastructure. San Francisco handles disability access
concerns through a collection of institutional mechanisms. At
the top is the Mayor's Office on Disability
("MOD"), an eight-person office that oversees the
"various departments, positions, policies, and
programs" dedicated to disability issues. Id.
at 1202. The staff of MOD "regularly work with and
receive input from a variety of organizations devoted to
disabled access, " as well as maintain a public website
with extensive information on disability access resources.
Id. at 1202-03.
the Mayor's Disability Council, an advisory body of
members of the disabled community that "provide[s] a
public forum to discuss disability issues." Id.
at 1203. The Mayor's Disability Council acts as the
primary liaison to San Francisco's disabled community.
are ADA coordinators located in each City department that has
more than fifty employees. Id. The ADA coordinators
investigate disability access complaints and serve as
resources for their respective departments on disability
access issues. Id.
a citywide grievance procedure overseen by MOD. Id.
Upon receipt of an access complaint, MOD sends a copy to the
ADA coordinator at the relevant department, who in turn
conducts an investigation. Id. at 1204. There is a
separate procedure for complaints related to curb ramps.
Id. at 1204-05.
for disability access improvements is governed by the
City's Capital Plan. Id. at 1205. The City
estimates that it will spend $670 million on ADA compliance
between 2012 and 2021. Id.
Right-of-Way. San Francisco operates a network of
"approximately 2, 000 miles of sidewalks, 27, 585 street
corners, and roughly 7, 200 intersections, " all
overseen by the Department of Public Works. Id. at
Mastin, one of Kirola's experts, testified that he
inspected 1, 432 curb ramps throughout the pedestrian
right-of-way and identified 1, 358 as inaccessible or
noncompliant with ADA standards. Id. at 1222.
Another expert, Dr. Edward Steinfeld, conducted fourteen site
inspections involving the public right-of-way and at thirteen
of them found curb ramp access barriers. Id. Expert
Peter Margen inspected ten intersections or street segments
and found "major barriers to accessibility" that
rendered "the system as a whole not accessible."
Id. Finally, expert David Seaman analyzed curb ramp
data held in a government database, and prepared maps
depicting which corners lacked curb ramps or had ramps in low
condition. Id. at 1224.
City presented experts that disagreed with these conclusions
and criticized the methods employed by Kirola's experts.
Defense expert Larry Wood testified that among Kirola's
experts, "there was no common way of measuring anything,
such as slopes, sidewalks, [and] curb ramps."
Id. at 1222 (alteration in original). Rather,
"they all seemed to have a different approach that was
somewhat haphazard." Id. Wood criticized Mastin
in particular for not considering dimensional tolerance in
his measurements. Id. at 1222-23. According to Wood,
dimensional tolerances are industry-accepted deviations from
applicable design requirements, such as those required by the
ADA and its regulations. Id. Wood also faulted
Mastin for using an incorrect benchmark when determining
whether the slopes of curb ramps were ADA compliant.
Id. at 1223. And Woods complained that Kirola's
experts cited potholes or utility grates as access barriers,
even when there was a wide path around the pothole or grate.
district court took issue with Kirola's experts'
methods as well. The court noted that her experts did not
"consider the height of the curbs or widths of the
sidewalks they examined, " even though those are
"critical measurements that may impact the design,
construction, and accessibility conclusions of the curb ramps
at issue." Id. at 1222. Agreeing with Wood, the
district court explained that Kirola's experts used
inconsistent methods to measure slopes, sidewalks, and curb
ramps. Id. The district court also criticized
Kirola's experts for recording curb-ramp slope by
measuring the "maximum localized variation, " which
is the steepest individual point along the slope of a ramp.
Id. at 1223. In the district court's view,
Kirola's experts should have considered the overall
"rise in run, " which is the average slope of the
evaluating the pedestrian right-of-way, Kirola's experts
applied the standards found in the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities ("ADAAG"). Id. at 1222. The
district court faulted Kirola's experts for this as well,
stating that ADAAG was inapplicable to public rights-of-way.
Id. 1222-23. The district court also stated that
even if ADAAG did apply to the public right-of-way, it only
applied to parts of the right-of-way that had been
constructed or altered after January 26, 1992. Id.
at 1223. The district court found that Kirola's experts
had applied ADAAG to all curb ramps, without first
determining the date on which each ramp had previously been
constructed or altered. Id.
the district court found that Seamon's analysis of
government curb ramp data did not include analysis of
accessible curb ramps, even when those accessible ramps
provided an alternative means of using a sidewalk.
Id. at 1224. The district court also found that the
information that Seamon relied on was not up to date or
the district court expressed concern about the qualifications
of the individuals who conducted Kirola's inspections.
Id. at 1222. The court noted that Steinfeld used
mostly student interns for his inspections, and that Margen
was not an architect. Id. Nevertheless, the district
court qualified Mastin, Steinfeld, Margen, Seamon, and
another witness named Gary Waters, all as experts.
Id. at 1221.
Program. San Francisco's library program consists of
a main library and twenty-seven branch libraries located
throughout the City. Id. at 1210. Kirola's
experts inspected eighteen of the City's twenty-eight
total libraries. Id. at 1226. Margen, Mastin, and
Steinfeld all testified to discovering access barriers at the
libraries, including "narrow aisles, inadequate
turnaround space ...