Roy Payan v. Laccd ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY PAYAN; PORTIA MASON; Nos. 19-56111
NATIONAL FEDERATION OF THE 19-56146
BLIND; NATIONAL FEDERATION OF
THE BLIND OF CALIFORNIA, D.C. No.
2:17-cv-01697-SVW-SK
Plaintiffs-Appellees/Cross-Appellants,
v. MEMORANDUM*
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Defendant-Appellant/Cross-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 12, 2021
Submission Vacated February 16, 2021
Resubmitted August 17, 2021
Pasadena, California
Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge LEE
Defendant-Appellant Los Angeles Community College District (“LACCD”)
appeals the final judgment and permanent injunction entered against it following
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
bench and jury trial verdicts finding it had systemically discriminated against blind
students at its Los Angeles City College (“LACC”) campus in violation of Section
504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the
Americans with Disabilities Act (“ADA”). Plaintiffs-Appellees, Roy Payan, Portia
Mason, the National Federation of the Blind, Inc. (“NFB”), and the National
Federation of the Blind of California, Inc. (“NFB-CA”) (together, “Plaintiffs”)
conditionally cross-appeal the district court’s denial of a jury trial on certain issues
of liability. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in
part; reverse in part; vacate the judgment and injunctive orders; and remand for
further proceedings. 1
1. As a threshold matter, LACCD seeks judicial notice of approximately
800 pages of evidence which was not presented to the district court. We decline to
notice these exhibits under Fed. R. Evid. 201 because they are “not factored into
the record on appeal.” Ctr. for Bio-Ethical Reform, Inc. v. City & County of
Honolulu, 455 F.3d 910, 913 n.3 (9th Cir. 2006). Moreover, LACCD’s motion
requests notice of the contents of these exhibits to decide contested issues of fact,
which is not an appropriate invocation of the rule. See Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010).
1
We explain separately, in a contemporaneously filed published opinion, the
district court’s error in construing the applicable disability discrimination laws.
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2. LACCD contends that neither NFB nor NFB-CA had organizational
standing to sue in this matter. We review questions of standing de novo and
underlying factual findings for clear error. Preminger v. Peake, 552 F.3d 757, 762
n.3 (9th Cir. 2008) (citations omitted).
The district court found that NFB and NFB-CA both had organizational
standing to sue. To prove organizational standing, a party bears “the burden of
demonstrating that (1) [it has] suffered an injury-in-fact, meaning that the injury is
‘concrete and particularized’ and ‘actual and imminent,’ (2) the alleged injury is
‘fairly traceable’ to the defendants’ conduct, and (3) it is ‘more than speculative’
that the injury is judicially redressable.” E. Bay Sanctuary Covenant v. Biden, 993
F.3d 640, 662–63 (9th Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)). The district court clearly erred by finding that NFB had diverted
its resources to combatting accessibility barriers at LACCD without tying NFB’s
expenditure of resources to any specific conditions at LACC. See El Rescate Legal
Servs., Inc. v. Exec. Office of Immigr. Rev., 959 F.2d 742, 748 (9th Cir. 1991).
However, the district court appropriately determined that NFB-CA’s advocacy
surrounding specific accessibility barriers at LACC was a diversion of resources
sufficient to support organizational standing. Id.Alternatively, the district court found both NFB and NFB-CA had
associational standing to sue. “[A]n association has standing to bring suit on
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behalf of its members when: (a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Hunt v. Wash.
State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). LACCD challenges only
this third element, which is generally satisfied when the associational plaintiff
seeks prospective relief for the benefit of its members. Warth v. Seldin, 422 U.S.
490, 515 (1975). Because both NFB and NFB-CA sought injunctive relief for their
members, the district court correctly determined that both entities satisfied the third
prong of the Hunt test. Id. Accordingly, both NFB and NFB-CA have standing to
sue in this case.
3. LACCD challenges the district court’s grant of partial summary
judgment on two specific grounds: that the court improperly weighed disputed
issues of fact and that it applied an incorrect burden-shifting framework to
Plaintiffs’ disparate impact claims. We review this challenge de novo. White v.
City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007) (citation omitted). LACCD’s
specific arguments are not supported by the record and do not establish error in the
district court’s partial grant of summary judgment. However, as explained
separately in our published opinion, the district court erred in its analysis of the
relevant disability law on summary judgment and is instructed to reconsider the
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matter on remand as informed by the analysis in our published opinion.
4. LACCD contends the district court erred by failing to rule on its
Daubert motions and by finding LACCD’s expert submitted a sham affidavit. We
review for abuse of discretion the district court’s consideration of expert testimony
and its sham affidavit finding. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152 (1999); Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2012).
LACCD filed Daubert objections to Plaintiffs’ two experts, Peter Bossley
and John Gunderson, which the district court never explicitly ruled on. This failure
to engage in the Daubert gatekeeping inquiry was an abuse of discretion. United
States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (citation
omitted); see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
Plaintiffs bear the burden of proving the harmlessness of this error. Ruvalcaba-
Garcia, 923 F.3d at 1190. Because the district court’s bench trial findings and
injunctive order rely heavily on Bossley’s opinions, and because Plaintiffs did not
specifically argue the harmlessness of the failure to evaluate Gunderson’s opinion,
we cannot conclude that the error here was harmless. We thus have “discretion to
impose a remedy ‘as may be just under the circumstances.’” United States v.
Bacon, 979 F.3d 766, 770 (9th Cir. 2020) (en banc) (citation omitted). Because
other errors in this case warrant remand for further proceedings, we instruct the
district court to also complete the appropriate Daubert inquiry on remand. See id.5
at 768 (citing Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th Cir.
2014) (en banc)).
The district court did not abuse its discretion in determining that LACCD’s
expert submitted a sham affidavit. The district court made factual findings that the
contradiction in LACCD’s expert’s affidavit was a sham because the inconsistency
between her deposition testimony and her affidavit was clear and unambiguous and
not otherwise attributable to a misunderstanding or changed circumstances. This
satisfied the district court’s obligation to complete the requisite inquiry before
invoking the sham affidavit rule. Yeager, 693 F.3d at 1080 (citation omitted).
5. LACCD contends the district court erred by permitting Plaintiffs to
pursue money damages for their deliberate indifference claims. We review this
argument de novo. Molski v. Foley Ests. Vineyard & Winery, LLC, 531 F.3d 1043,
1046 (9th Cir. 2008). “To recover monetary damages under Title II of the ADA or
the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part
of the defendant,” which is measured by a “deliberate indifference” standard.
Duvall v. County of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001), as amended
on denial of reh’g (Oct. 11, 2001) (footnote and citation omitted). LACCD argues
that the “deliberate indifference” standard is inconsistent with the “thoughtless
indifference” that disparate impact claims are meant to remedy. But this argument
has no basis in our precedent which has long recognized that money damages are
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recoverable for intentional violations of both the ADA and Section 504. See
Alexander v. Choate, 469 U.S. 287, 295 (1985); Duvall, 260 F.3d at 1138.
6. LACCD contends the district court’s bench trial findings were clearly
erroneous. We review the district court’s factual findings for clear error and its
legal conclusions de novo. Lee v. W. Coast Life Ins. Co., 688 F.3d 1004, 1009 (9th
Cir. 2012) (citations omitted). Because the district court erred in construing the
appropriate legal scope of Plaintiffs’ disability discrimination claims, thus
requiring remand for a new trial, we decline to address many of LACCD’s specific
assignments of error. We note, however, that the district court erred in holding
LACCD liable for accessibility barriers in the LACC library research databases
based on “self-evident principles,” despite making an explicit finding that Plaintiffs
failed to carry their burden of proof to show that reasonable modifications existed
to remedy these accessibility barriers.
7. LACCD contends the district court’s permanent injunction was overly
broad. We agree. We review the permanent injunction for abuse of discretion.
Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 965 (9th Cir. 2017) (citation
omitted). The injunction’s provisions regarding the library databases, for example,
constituted an abuse of discretion because Plaintiffs failed to meet their burden of
proof regarding the existence of reasonable modifications to those databases.
Because we remand this case for reconsideration of Plaintiffs’ disability
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discrimination claims, we similarly vacate the entire injunction and remand for
reconsideration of Plaintiffs’ requested injunctive relief in light of the findings on
retrial.
8. Plaintiffs contend on cross-appeal that the district court erred by
denying plaintiffs a jury trial on issues of liability. We agree. We review this
issue de novo. Smith v. Barton, 914 F.2d 1330, 1336 (9th Cir. 1990) (citation
omitted). The district court denied Plaintiffs’ request for a jury trial on all but the
“deliberate indifference” and damages components of their claims. This was error.
Because the individual plaintiffs sought money damages on their disability
discrimination claims, they were entitled to a jury trial on these claims under the
Seventh Amendment. Id. at 1337–38. On remand, the district court is instructed to
permit Plaintiffs to try their disability discrimination claims to a jury.
AFFIRMED in part; REVERSED in part; VACATED in part; and
REMANDED for retrial. LACCD’s Motion for Judicial Notice (ECF No. 28)
is DENIED. Each party is to bear its own costs.
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FILED
Payan v. Los Angeles Community College District, No. 19-56111 AUG 24 2021
MOLLY C. DWYER, CLERK
LEE, Circuit Judge, concurring-in-part and dissenting-in-part: U.S. COURT OF APPEALS
I agree with the majority except that I do not believe that disparate impact is
available under Section 504 of the Rehabilitation Act or Title II of the ADA.