Ivana Kirola v. City & County of San Francisco , 860 F.3d 1164 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVANA KIROLA, On Behalf of No. 14-17521
Herself and The Certified Class
of Similarly Situated Persons, D.C. No.
Plaintiff-Appellant, 4:07-cv-03685-SBA
v.
OPINION
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.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted December 14, 2016
San Francisco, California
2 KIROLA V. CITY & CTY. OF SAN FRANCISCO
Filed June 22, 2017
Before: Diarmuid F. O’Scannlain, Ronald M. Gould,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Gould
SUMMARY*
Americans with Disabilities Act
The 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.
Reversing 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 3
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.
On the 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 facility-specific requirements.
The 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
4 KIROLA V. CITY & CTY. OF SAN FRANCISCO
experts’ credibility was based on legal errors, the panel
remanded for reevaluation of the extent of ADAAG
noncompliance.
On the 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.
The 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.
COUNSEL
Guy B. 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 Plaintiff-Appellant.
James 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 Defendants-Appellees.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 5
Jinny 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.
Marc 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.
OPINION
GOULD, Circuit Judge:
Title 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.
6 KIROLA V. CITY & CTY. OF SAN FRANCISCO
I
Plaintiff-Appellant 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.
On July 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,1 and pedestrian right-of-way did not
comply with Title II of the Americans with Disabilities Act
(“ADA”) and related regulations.
On June 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
1
ADA regulations define “Facility” broadly to include “all or any
portion of buildings, structures, sites, complexes, equipment, rolling
stock or other conveyances, roads, walks, passageways, parking lots, or
other real or personal property, including the site where the building,
property, structure, or equipment is located.” 28 C.F.R. § 35.104.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 7
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.
The 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.
In 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:
Class 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. Id.Kirola 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.
8 KIROLA V. CITY & CTY. OF SAN FRANCISCO
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.
Accessibility 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.
Next is 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. Id.Third 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.Last is 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.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 9
Funding 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 2021.2 Id.Public 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 1205.
Scott 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.
The 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.2
A significant portion of the trial was also dedicated to evidence of
the City’s various plans and policies for addressing access barriers. See,
e.g., id. at 1216. The specific content of these plans and policies is not
relevant to the issues on appeal.
10 KIROLA V. CITY & CTY. OF SAN FRANCISCO
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. Id.The 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 ramp. Id.In 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 V. CITY & CTY. OF SAN FRANCISCO 11
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.Furthermore, 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 comprehensive.
Id.Finally, 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.
Library 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 at the end of aisles,
12 KIROLA V. CITY & CTY. OF SAN FRANCISCO
inaccessible restrooms, inaccessible seating, and excessive
door pressure.” Id.The City’s experts conducted their own inspections,
visiting sixteen of the libraries that Kirola’s experts inspected.
Id. at 1229. Wood testified that based on his inspection, each
of the sixteen libraries featured:
(1) an accessible route from the entrance to
the public sidewalk; (2) an accessible
entrance; (3) automatic door openers;
(4) elevators within multi-story buildings;
(5) access to all library levels; (6) accessible
checkout counters; (7) accessible tables;
(8) accessible doors along all accessible
routes; (9) accessible copy machines;
(10) accessible toilet rooms for men and
women; (11) accessible drinking fountains;
and (12) accessible book stacks.
Id. Nevertheless, based on Wood’s inspection, MOD advised
the library of three to four access barriers that it thought
should be addressed, as well as several maintenance issues.
Id. At the time of trial, the City was in the process of
addressing these requests. Id.The City also presented evidence that the library program
offers “a range of non-structural solutions to ensure access to
its programs and events, including assistive technologies,
books by mail, a Library on Wheels, a Library for the Blind
and Print Disabled, a Deaf Services Center, and Accessibility
Tool Kits.” Id. at 1214.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 13
The district court again criticized Kirola’s experts.
According to the district court, Kirola’s experts improperly
applied the requirement for a 48-inch-wide U-turn area to
aisles between shelves, which under applicable regulations
only had to be 36 inches wide. Id. at 1228. Moreover, some
of the doors Kirola’s experts examined for excessive pressure
were fire doors, which the district court maintained are
allowed to possess greater pressure. Id. The district court
also found that the effects of some of the access barriers cited
by Kirola’s experts were alleviated by other accessible
features. Id. For instance, some of the difficult-to-move
doors had electric door openers. Id. And at the Richmond
library, one ramp was not accessible, but another ramp
leading to the same place was accessible. Id. The district
court’s criticism regarding the failure to consider dimensional
tolerances applied to Kirola’s experts’ library examinations
as well. Id. at 1227.
Aquatic Program. San Francisco’s aquatics program
consists of nine public swimming pools. Id. at 1210. Of
these nine pools, six have been renovated to improve
accessibility. Id. at 1213.
Kirola’s experts inspected seven of the nine pools, though
three of the pools they inspected were the “limited access”
pools that had not been renovated to improve accessibility.
Id. at 1226. Steinfeld testified that he found numerous access
barriers at the pools. Id. at 1226–27. These included
“inaccessible paths of travel, inaccessible parking, inadequate
signage, missing handrails, inaccessible handrails, heavy
doors, drinking fountains lacking [adequate] knee clearance,
and non-detachable shower heads.” Id.14 KIROLA V. CITY & CTY. OF SAN FRANCISCO
The City’s experts visited five pools, three of which were
pools that Kirola’s experts had inspected. Id. at 1229.
Contrary to Steinfeld’s testimony, Wood explained that each
of the five pools he visited had “the features necessary to
facilitate accessibility.” Id. These features included:
(1) an accessible route from the property line
to the building; (2) an accessible entry; (3) an
accessible check-in counter; (4) accessible
signage; (5) accessible ramps or curb ramps
where necessary; (6) accessible toilets;
(7) accessible showers; (8) accessible locker
rooms; and (9) transfer lifts to assist
individuals with mobility impairments in
getting into and out of the pool.
Id.RecPark Program. The City’s RecPark program
encompasses “220 parks spanning 4,200 acres of park space
and 400 structures (i.e., clubhouses, recreation centers, etc.)
thereon.” Id. at 1210. The program has a website, which
provides information about which of its locations are
accessible. Id. at 1215–16.
Of the 220 total locations, Kirola’s experts inspected
13 parks, 7 mini-parks, and 16 playgrounds. Id. at 1227. The
district court gave the following description of Kirola’s
experts’ findings:
Kirola’s experts identified various access
barriers, including an inaccessible entrance
ramp at Balboa Park, a cracked sidewalk at
Jefferson Square Park, limited accessible
KIROLA V. CITY & CTY. OF SAN FRANCISCO 15
paths of travel at Golden Gate Park’s Japanese
Tea Garden and Rose Garden, inaccessible
paths connecting the main facilities at Glen
Canyon Park, and placement of flora and
fauna signage at Glen Canyon Park too far
from accessible trails.
Id.Kirola’s experts also inspected thirteen of the City’s
seventy-three recreation centers and clubhouses. Id. Mastin
concluded that four of the eleven recreation centers he
inspected were inaccessible, based on findings “such as
inadequate signage, an excessive cross-slope leading to
accessible features in a restroom, a broken elevator, and an
inaccessible tennis court.” Id.Wood and his team inspected the same recreation centers
as Kirola’s experts. Id. at 1229. Wood testified that
accessibility features at those centers included:
(1) an accessible route from the property line
to the building; (2) an accessible entry;
(3) accessible community rooms; (4)
accessible ramps or curb ramps where
necessary; (5) accessible elevators within
multi-story buildings; (6) an accessible gym
with accessible bleacher facilities (with the
exception of the Golden Gate Senior Center,
which lacked a gym); (7) an accessible weight
room in facilities where a weight room was
provided; (8) accessible doors; (9) an
attendant for special requests; (10) accessible
16 KIROLA V. CITY & CTY. OF SAN FRANCISCO
bathrooms for men and women; and
(11) accessible drinking fountains.
Id. Wood’s inspection did not come up completely clean,
however. He concluded that 1.6 percent of the access barriers
cited by Kirola’s experts at San Francisco’s recreation
facilities and its libraries required modification. Id. at 1230.
The evidence at trial similarly established that MOD had
concluded that there were roughly 400 access barriers
throughout the RecPark program in need of alteration. Id.The district court’s criticism of Kirola’s experts’ methods
applied to their RecPark investigation as well. The district
court faulted her experts for failing to consider dimensional
tolerances, and criticized them for not using the “rise in run”
approach to measuring slopes. Id. at 1222–23. Moreover, the
district court found that Kirola’s experts had once again
applied the standards of ADAAG, which the district court
concluded did not apply to parks and playgrounds. Id. at
1227–28. According to the district court, Kirola’s experts
also did not take into account conflicts between state and
federal law, which in some instances “requir[ed] the City to
decide which standard is more restrictive.” Id. at 1228.
Conclusions. On the basis of its many critiques of
Kirola’s experts’ methodologies, the district court ultimately
found that her experts were not credible in their investigations
of each public program. See, e.g., id. at 1224. The district
court gave little weight to the testimony of Kirola’s experts.
See, e.g., id. By contrast, the district court found the
testimony of the City’s experts convincing. See, e.g., id.On the basis of its factual findings, the district court
concluded that Kirola lacked Article III standing. The district
KIROLA V. CITY & CTY. OF SAN FRANCISCO 17
court ruled that Kirola’s “minimal testimony” about
encountering only a few barriers was insufficient to show
“that she has been deprived of meaningful access to a
challenged service, program, or activity in its entirety.” Id. at
1239–40 (internal quotation marks omitted). For this reason,
the district court held that Kirola had not established injury in
fact. Id. at 1242. The district court went on to hold that even
had Kirola shown an actual injury, that injury would not be
redressed by the specific terms of her proposed injunction.
Id. at 1243–45. Finally, the district court concluded that any
injury to Kirola was not likely to recur because she had not
shown that her alleged injuries stemmed from any written
policy. Id. at 1249.
As an alternative holding, the district court addressed, and
denied, Kirola’s claims on the merits. Id. at 1250. Of those
claims, two are relevant to this appeal. The first is a claim
over “existing facilities,” defined as facilities constructed
prior to January 26, 1992. Under 28 C.F.R. § 35.150, the City
is obligated to operate each existing facility so as to ensure
“program access.” Daubert v. Lindsay Unified Sch. Dist.,
760 F.3d 982, 988 (9th Cir. 2014). Program access does not
require that each existing facility be disability accessible. Id.
at 986. Rather, it requires that each “program” offered by the
City, when viewed in its entirety, be “readily accessible to
and usable by individuals with disabilities.” 28 C.F.R.
§ 35.150(a); Daubert, 760 F.3d at 986. The district court held
that Kirola did not prove that the City’s public right-of-way,
aquatics, library, and RecPark programs were inaccessible
when viewed in their entirety. Kirola, 74 F. Supp. 3d at
1251, 1254–56.
Kirola’s second relevant claim concerns facilities “newly
constructed or altered” after January 26, 1992. Under
18 KIROLA V. CITY & CTY. OF SAN FRANCISCO
28 C.F.R. § 35.151(a)(1), each newly constructed or altered
facility must be “readily accessible to and usable by
individuals with disabilities.” The City elected to meet this
standard by following the standards set forth in ADAAG.
Kirola, 74 F. Supp. 3d at 1212. The district court held that
because it did not find Kirola’s experts credible, Kirola had
established only “a few isolated departures” from ADAAG.
Id. at 1258. The district court denied Kirola’s claim,
reasoning that the “few variations” with respect to newly
constructed or altered facilities did not show that class
members had been denied “meaningful access.” Id. at 1259.
The district court entered judgment for the City, and
Kirola timely appealed. Id. at 1267. We have jurisdiction
under 28 U.S.C. § 1291. For the reasons that follow, we
affirm in part, reverse in part, and remand, with instructions.
II
We review the district court’s findings of fact following
a bench trial for clear error. See Fed. R. Civ. P. 52(a)(6);
OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096
(9th Cir. 2011). We review the district court’s conclusions of
law, including its conclusion regarding standing, de novo.
Id.; see Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d
1281, 1286 (9th Cir. 2013).
III
“[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it
KIROLA V. CITY & CTY. OF SAN FRANCISCO 19
is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Friends of the Earth,
Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000). When seeking prospective injunctive
relief, the plaintiff must further show a likelihood of future
injury. City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983).
In the ADA context, a plaintiff may establish injury in
fact to pursue injunctive relief through evidence that the
plaintiff encountered an access barrier and either intends to
return or is deterred from returning to the facility. See
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950
(9th Cir. 2011) (en banc).3 Here, Kirola testified to
encountering the following access barriers at San Francisco’s
public facilities:
(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.
3
Chapman involved a challenge under Title III of the ADA, which
addresses discrimination in public accommodations, rather than Title II,
which applies to discrimination in public services. See id. Nevertheless,
despite the titles’ different application and different standards for relief on
the merits, the answer to the constitutional question of what amounts to
injury under Article III is the same.
20 KIROLA V. CITY & CTY. OF SAN FRANCISCO
Kirola, 74 F. Supp. 3d at 1240. These barriers spanned San
Francisco’s public right-of-way, libraries, parks, and pools,
and interfered with Kirola’s access at the facilities4 she
visited. Id.
The district court held that Kirola’s experiences were
insufficient to constitute Article III injury because Kirola had
not “been deprived of ‘meaningful access’ to a challenged
service, program, or activity in its entirety.” Id. at 1239. This
was error. The district court seems to have improperly
conflated Kirola’s standing with whether she would prevail
on the merits. See Whitmore v. Arkansas, 495 U.S. 149, 155
(1990) (“Our threshold inquiry into standing in no way
depends on the merits of the petitioner’s contention that
particular conduct is illegal.” (internal quotation marks and
alteration omitted)). Meaningful access to a program “in its
entirety” is the standard for relief on the merits of Kirola’s
program access claims. See 28 C.F.R. § 35.150. If that was
also the standard for injury in fact, there would be no
difference between Kirola succeeding on the merits and
establishing standing to assert her claims in the first place.
Article III is not superfluous. Its standards exist apart from
the merits, and are well established.
The standard for injury in fact is whether Kirola has
encountered at least one barrier that interfered with her access
to the particular public facility and whether she intends to
return or is deterred from returning to that facility. See
4
Standing for ADA claims is measured on a facility-by-facility basis,
not a barrier-by-barrier basis. Once a plaintiff has proven standing to
challenge one barrier at a particular facility, that plaintiff has standing to
challenge all barriers related to her disability at that facility. See Doran
v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008).
KIROLA V. CITY & CTY. OF SAN FRANCISCO 21
Chapman, 631 F.3d at 950; see also Doran, 524 F.3d at 1039(“The Supreme Court has instructed us to take a broad view
of constitutional standing in civil rights cases.”).
Kirola meets this standard. The barriers she encountered
prevented her from benefitting from the same degree of
access as a person without a mobility disability, and deterred
her from future attempts to access the facilities she visited.
This is a concrete and particularized harm. See Doran,
524 F.3d at 1040 (“[Plaintiff] has suffered an injury that is
concrete and particularized because he . . . personally suffered
discrimination as a result of the barriers in place during his
visits to 7-Eleven and that those barriers have deterred him
. . . from patronizing the store”). Kirola’s injuries are actual
because they have already happened. And she is likely to
suffer harm in the future because Kirola is “currently deterred
from visiting [various public facilities] by accessibility
barriers.” Ervine v. Desert View Reg’l Med. Ctr. Holdings,
LLC, 753 F.3d 862, 867 (9th Cir. 2014). Kirola has
established injury in fact.
Kirola has also proven causation. The barriers Kirola
encountered are “fairly traceable” to the City because the City
is responsible for construction, alteration, and maintenance of
the facilities that include those barriers. See Kirola, 74 F.
Supp. 3d at 1205.
Finally, Kirola has proven redressability. Through a
properly framed injunction, the district court can ensure that
the City alters or removes the access barriers Kirola
encountered. As a result, Kirola “personally would benefit in
a tangible way from the court’s intervention.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 104 n.5 (1998)
(quoting Warth v. Seldin, 422 U.S. 490, 508 (1975)). The
22 KIROLA V. CITY & CTY. OF SAN FRANCISCO
district court, concluding to the contrary, focused on the
specific terms of Kirola’s proposed injunction, finding that
the injunction would not remedy Kirola’s injuries. Kirola,
74 F. Supp. 3d at 1243. But Kirola’s proposed injunction
would benefit her. For example, her proposal to shorten the
City’s curb ramp inspection cycle would increase the
timetable in which the curb barriers she encountered would
be fixed. See id.
In any event, Kirola’s proposed injunction does not
control whether her claims are redressable. The district court
is not bound by Kirola’s proposal, and may enter any
injunction it deems appropriate, so long as the injunction is
“no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs.” United States v.
AMC Entm’t, Inc., 549 F.3d 760, 775 (9th Cir. 2008) (quoting
Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).
Redressability is a constitutional minimum, depending on the
relief that federal courts are capable of granting. Kirola does
not lose standing because she proposed an injunction that the
district court thought too narrow. We hold that Kirola has
proven standing to challenge barriers at the facilities she
visited.
We now address whether the certified class has standing
to challenge the facilities Kirola did not personally visit. A
panel of our court recently clarified the relationship between
Article III and class certification. See Melendres v. Arpaio,
784 F.3d 1254, 1262 (9th Cir. 2015). Adopting the “class
certification approach,” the panel in Melendres held that
“once the named plaintiff demonstrates her individual
standing to bring a claim, the standing inquiry is concluded,
and the court proceeds to consider whether the Rule 23(a)
prerequisites for class certification have been met.” Id.KIROLA V. CITY & CTY. OF SAN FRANCISCO 23
(quoting 1 William B. Rubenstein, Newberg on Class Actions
§ 2:6 (5th ed.)). Kirola has demonstrated individual standing
to bring her claims, and the district court earlier certified a
class consisting of “[a]ll persons with mobility disabilities
who are allegedly being denied access . . . due to disability
access barriers to . . . parks, libraries, swimming pools, and
curb ramps, sidewalks, crosswalks, and any other outdoor
designated pedestrian walkways in the City and County of
San Francisco.”5 The class definition is broad enough to
encompass every facility discussed at trial, whether Kirola
personally visited that facility or not. The district court
thought that it could address only facilities that were visited
by Kirola. But that does not take into account the scope of
the certified class and the holding of Melendres. We hold
that the plaintiff class has standing for claims related to all
facilities challenged at trial.
IV
Turning to the merits of Kirola’s claims, we address those
related to newly constructed or altered facilities. Title II’s
implementing regulations mandate that “each facility
constructed” after January 26, 1992, be “readily accessible to
and usable by individuals with disabilities.” 28 C.F.R.
§ 35.151(a)(1). Likewise, for “each facility altered” after
January 26, 1992, the altered portion must, “to the maximum
extent feasible,” be “readily accessible to and usable by
individuals with disabilities.” Id. at 28 C.F.R. § 35.151(b)(1).
To ensure compliance with these mandates, a federal
agency called the Architectural and Transportation Barriers
5
No challenge to the class certification order is before us on this
appeal.
24 KIROLA V. CITY & CTY. OF SAN FRANCISCO
Compliance Board (“Access Board”) produces the ADAAG
standards mentioned above. These standards are not binding
when promulgated by the Access Board. Under Title II, the
Department of Justice (“DOJ”) is required to adopt its own
binding access regulations that are consistent with the
minimum standards put out by the Access Board. See
42 U.S.C. § 12134(b). The legal framework is that: (1) the
Access Board sets a baseline of nonbinding requirements; and
(2) DOJ must then adopt binding regulations that are
“consistent with—but not necessarily identical to—the
[Access] Board’s guidelines.” Miller v. Cal. Speedway
Corp., 536 F.3d 1020, 1025 (9th Cir. 2008).
Both ADAAG and DOJ’s guidelines have been through
multiple iterations since Congress passed the ADA in 1990.
See id. at 1024–27 (giving partial history of ADAAG-related
rulemakings and interpretations). The history of these
regulations is a helpful key to full understanding of the
requirements that govern Kirola’s claims over new and
altered facilities.
On July 26, 1991, the Access Board published its first
iteration of ADAAG. Id. at 1025; ADA Accessibility
Guidelines (ADAAG), United States Access Board, available
at https://www.access-board.gov/guidelines-and-
standards/buildings-and-sites/about-the-ada-standards/
background/adaag. That same day, DOJ adopted ADAAG
in full as its own accessibility regulations. See Background,
United States Access Board, https://www.access-
board.gov/guidelines-and-standards/buildings-and-
sites/about-the-ada-standards/background (hereinafter
“ADAAG Background”). Through September 3, 2002, the
Access Board published several supplements to ADAAG. Id.But because DOJ had not re-adopted ADAAG up to this
KIROLA V. CITY & CTY. OF SAN FRANCISCO 25
point, the supplements were nonbinding; the only binding
ADAAG requirements were the original ones adopted in
1991. See Arizona ex rel. Goddard v. Harkins Amusement
Enterprises, Inc., 603 F.3d 666, 674 (9th Cir. 2010) (“This
court has declined to give deference to Access Board
guidelines that have not yet been adopted by the DOJ.”).
In 2004, the Access Board published a wholesale revamp
of ADAAG. See ADAAG Background. Again, the new
regulations were not then binding. But on September 15,
2010, DOJ updated its accessibility regulations by
incorporating the 2004 ADAAG standards with slight
variations. See 2010 ADA Standards for Accessible
Design, available at https://www.ada.gov/regs2010/
2010ADAStandards/2010ADAStandards.pdf; 36 C.F.R. Pt.
1191, App. B, D; 28 C.F.R. Pt. 36, App. A.
DOJ’s 2010 standards set a timetable for compliance with
the newly binding 2004 ADAAG standards. For new
constructions or alterations commenced before September 15,
2010, public entities could choose to comply either with the
original 1991 ADAAG standards or with another set of
federal standards called the Uniform Federal Accessibility
Standards (“UFAS”). 28 C.F.R. § 35.151(c)(1). New
constructions or alterations commenced between September
15, 2010, and March 15, 2012, could comply with the 1991
ADAAG standards, with UFAS, or with the newly adopted
2004 ADAAG standards. Id. § 35.151(c)(2). And new
constructions or alterations commenced after March 15, 2012,
had to comply with the 2004 ADAAG standards. Id.
§ 35.151(c)(3).
Here, the district court found that the City had elected to
follow ADAAG over UFAS to meet its federal access
26 KIROLA V. CITY & CTY. OF SAN FRANCISCO
obligations. Kirola, 74 F. Supp. 3d at 1212. Though the
district court did not specify which of the two ADAAG
standards the City had chosen to comply with—the 1991 or
2004 standards—we can be confident that for most new
constructions and alterations it was the 1991 standard. The
trial took place in April and May of 2011, a year and a half
after the 2004 standards became an option for the City’s new
constructions and alterations. So only for facilities
constructed or altered during that year-and-a-half period
could the City have chosen to comply with the 2004
standards. Even then, complying with the new standard was
optional, not required.
We focus our analysis on the original ADAAG standards
from 1991. From here on in this opinion, when we refer
to“ADAAG,” we refer to the 1991 ADAAG standards.
These standards state requirements “as precise as they are
thorough, and the difference between compliance and
noncompliance with the standard of full and equal enjoyment
established by the ADA is often a matter of inches.”
Chapman, 631 F.3d at 945–46. “[O]bedience to the spirit of
the ADA does not excuse noncompliance with [] ADAAG’s
requirements.” Id. at 945 (internal quotation marks omitted).
ADAAG includes two categories of requirements. The
first, found in Section Four, is titled “Accessible Elements
and Spaces: Scope and Technical Requirements.” These
requirements set out detailed design guidelines for particular
features of facilities. See, e.g., ADAAG § 4.9.2 (“Stair treads
shall be no less than 11 in (280 mm) wide, measured from
riser to riser.”); id. § 4.13.7 (“The minimum space between
two hinged or pivoted doors in series shall be 48 in (1220
mm) plus the width of any door swinging into the space.”);
KIROLA V. CITY & CTY. OF SAN FRANCISCO 27
id. § 4.19.6 (“Mirrors shall be mounted with the bottom edge
of the reflecting surface no higher than 40 in (1015 mm)
above the finish floor.”). We refer to the collection of
guidelines in Section Four as the “feature-specific”
requirements. The feature-specific requirements apply to
“[a]ll areas of newly designed or newly constructed buildings
and facilities and altered portions of existing buildings and
facilities.” Id. § 4.1.1.
The second category of guidelines is addressed not to
specific features, but to specific types of facilities. We call
these “facility-specific” requirements. The facility-specific
requirements are spread across several different sections and
give standards for particular types of facilities such as
“Restaurants and Cafeterias,” id § 5, “Medical Care
Facilities,” id § 6, and “Libraries,” id § 8. The facility-
specific sections each begin with a recital that the facilities
covered by that section must still comply with the feature-
specific guidelines contained in Section Four. See, e.g., id.
§ 5.1.
The district court found that Kirola had proven that the
City’s new or altered facilities departed from ADAAG in
only a few isolated instances. The district court reasoned in
two steps, first concluding that none of Kirola’s experts was
reliable, and then concluding that all of the City’s experts
were reliable. See Kirola, 74 F. Supp. 3d at 1222, 1227–28,
1258. It thus disregarded and discarded every ADAAG
violation identified by Kirola’s experts, accepting only the
small number of violations identified by the City’s experts.
See id. at 1230 (“Wood found that only 1.6 percent of the
access barriers cited by Kirola’s experts at City libraries and
recreation facilities actually needed modification.”).
28 KIROLA V. CITY & CTY. OF SAN FRANCISCO
The district court’s conclusion concerning the credibility
of Kirola’s experts and the extent of ADAAG compliance
was erroneous because it relied on several regulatory
misinterpretations. The district court’s most consequential
misinterpretation concerned ADAAG’s applicability to public
rights-of-way, parks, and playground facilities. Kirola’s
experts applied ADAAG’s standards to San Francisco’s
public right-of-way, parks, and playground facilities as part
of their investigation of the City’s compliance with the ADA.
The district court sharply disagreed with this approach,
explaining that in its view, ADAAG was simply inapplicable
to such facilities. Kirola, 74 F. Supp. 3d at 1223, 1227–28.
The district court based its erroneous conclusion on the fact
that ADAAG in 1991 did not contain facility-specific sections
for public rights-of-way, parks, and playgrounds.6 The
district court’s incorrect interpretation of ADAAG
contributed to its negative view of the credibility of Kirola’s
experts: “[t]he Court further discounts the probative value of
Kirola’s experts’ opinions and reports based on their
misapplication of ADAAG.” See Kirola, 74 F. Supp. 3d at
1223. But because the experts had not misapplied ADAAG,
and instead it was the district court that so erred, this point
did not give a valid basis on which to discount Kirola’s
experts’ testimony.
6
At some point the Access Board inserted into ADAAG a placeholder
heading for “Public Rights-of-Way,” but the Access Board did not publish
any requirements in that section. The Access Board also published an
ADAAG supplement in 2002 titled “Recreation Facilities,” but the
supplement was not incorporated into DOJ’s guidelines. See ADAAG
§§ 14–15.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 29
We hold that the district court’s interpretation of ADAAG
was erroneous.7 Properly interpreted, ADAAG’s standards
apply to public rights-of-way, parks, and playgrounds.
Although ADAAG does not include facility-specific
guidelines particular to those types of facilities, the Section
Four feature-specific requirements apply.
Several reasons support this conclusion. First, applying
ADAAG’s feature-specific requirements to public rights-of-
way, parks, and playgrounds is consistent with the executive
branch’s own interpretation of ADAAG. In 1993, DOJ issued
a Technical Assistance Manual to help public entities
understand their obligations under the ADA. In 1994, DOJ
issued a supplement to the manual that stated:
What if neither ADAAG nor UFAS contain
specific standards for a particular type of
facility? In such cases the technical
requirements of the chosen standard should be
applied to the extent possible. If no standard
exists for particular features, those features
need not comply with a particular design
standard. However, the facility must still be
designed and operated to meet other title II
requirements, including program accessibility.
1994 Supplement to Technical Assistance Manual, II–6.2100,
available at https://www.ada.gov/taman2up.html (emphasis
7
Though we review the district court’s ultimate conclusion as to
witness credibility for clear error, where, as here, that credibility finding
was based on a legal interpretation, we review that legal interpretation de
novo. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15
(1982).
30 KIROLA V. CITY & CTY. OF SAN FRANCISCO
in original) (citation omitted). We recently held that the
interpretations in this supplement are entitled to deference.
See Fortyune v. City of Lomita, 766 F.3d 1098, 1104 (9th Cir.
2014) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)); cf.
Miller, 536 F.3d at 1028 (“The guidance provided in the
technical assistance manual is an interpretation of the DOJ’s
regulation and, as such, is entitled to significant weight as to
the meaning of the regulation.” (internal quotation marks
omitted)).
Applying the City’s “chosen standard”—ADAAG—“to
the extent possible,” requires applying ADAAG’s feature-
specific standards to San Francisco’s public right-of-way,
parks, and playgrounds. As an example of what this means
on the ground, while ADAAG may not have a facility-
specific section governing parks, it does have a feature-
specific section governing ramps. See ADAAG § 4.8. Any
ramp constructed or altered in a park between January 26,
1992, and September 15, 2010 (and possibly as late as March
15, 2012), had to comply with ADAAG’s feature-specific
ramp guidelines.
The City focuses on the next sentence from the 1994
Supplement, that “[i]f no standard exists for particular
features, those features need not comply with a particular
design standard.” But that sentence applies to “features,” not
“facilities.” The sentence says that if, for example, Section
Four had no feature-specific requirements for ramps, then any
newly constructed ramps need not comply with ADAAG.
This is different from saying that if there are no facility-
specific requirements for parks, then parks need not comply
with ADAAG at all.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 31
Second, the language of ADAAG supports our view. The
feature-specific guidelines in ADAAG Section Four, by
ADAAG’s own terms, apply to “[a]ll areas of newly designed
or newly constructed buildings and facilities and altered
portions of existing buildings and facilities.” ADAAG
§ 4.1.1. No provision excludes application to public rights-
of-way, parks, or playgrounds. Instead, ADAAG uses the
broad phrase “all areas.”
The City’s main argument in response relies on the
expressio unius canon of interpretation. The City contends
that the presence of facility-specific sections for some types
of facilities precludes ADAAG’s application to other facility
types that do not have their own specific set of regulations.
We reject this argument, because the facility-specific sections
are not standalone sets of regulations. Rather, they are
collections of additions and exceptions. Consider the
language at the head of each facility-specific section stating
that the facility-specific requirements apply in addition to the
feature-specific regulations of Section Four. See, e.g., id.
§ 5.1. These provisions indicate that ADAAG was not
structured as a regulation that applies to “apples, bananas, and
oranges,” permitting the reasonable inference that it does not
apply to a pear. ADAAG is structured as a regulation that
applies to “all fruit, but with additional rules and exception
for apples, bananas, and oranges.” Such a regulation would
still apply to a pear. And for ADAAG, it still applies to
public rights-of-way, parks, and playgrounds. For these same
reasons, we are not persuaded by the district court’s twist on
expressio unius that because the Access Board has proposed
facility-specific guidelines for public rights-of-way and
adopted a supplement for recreation facilities, the rest of
ADAAG does not apply to such facilities. See Kirola, 74 F.
32 KIROLA V. CITY & CTY. OF SAN FRANCISCO
Supp. 3d at 1223, 1227–28. The district court’s conclusion
does not follow from its premise.
Third, applying ADAAG’s feature-specific requirements
to public rights-of-way, parks, and playgrounds makes sense
as a regulatory scheme. Imagine that ADAAG did not apply
to those facilities at all. Public entities would not suddenly
find themselves free to ignore access concerns when altering
or building new rights-of-way, parks, and playgrounds. The
requirements of 28 C.F.R. § 35.151 would still apply, holding
public entities to the “readily accessible [] and usable”
standard. Id. § 35.151(a), (b). However, the exposition of
this general standard would no longer come from experts at
DOJ and the Access Board, but from the courts. In many
areas of law, this is a permissible arrangement. Giving
content to general standards is foundational to the judicial
function. See Marbury v. Madison, 5 U.S. 137, 177 (1803).
But when the content involves many precise dimensions such
as inches of knee clearance underneath a sink, see ADAAG
§ 4.24.3, courts do not have the institutional competence to
put together a coherent body of regulation. By contrast, a
federal administrative agency can hire personnel with the
specific skills needed to devise and implement the regulatory
scheme. And as for the regulated entities, an architect putting
thousands of measurements into his or her blueprint needs a
holistic collection of design rules, not the incremental product
of courts deciding cases and controversies one at a time.
We hold that ADAAG applies to San Francisco’s public
right-of-way, parks, and playgrounds. The district court
therefore erred in its conclusion that Kirola’s experts’
application of ADAAG to those facilities made them less
credible. The district court should have made its credibility
KIROLA V. CITY & CTY. OF SAN FRANCISCO 33
assessment on the premise that ADAAG applied to those
facilities.
The district court made other legal mistakes in reaching
its credibility determination. For one thing, it improperly
criticized Kirola’s experts because they “dwelled on minor
variations,” rather than “focusing on overall accessibility.”
Kirola, 74 F. Supp. 3d at 1228. While, as explained below,
focusing on overall accessibility is acceptable when
evaluating existing facilities, avoiding “minor variations” is
exactly what ADAAG requires of new or altered facilities.
See Chapman, 631 F.3d at 946 (compliance with ADAAG “is
often a matter of inches”). The district court’s criticisms of
Kirola’s experts’ detail-focused approach affected its
assessment of those experts’ credibility generally, regarding
the experts’ conclusions both on existing and on new or
altered facilities.
The district court also improperly faulted Kirola’s experts
for not applying proposed federal standards for “outdoor
facilities” to parks and playgrounds. Kirola, 74 F. Supp. 3d
at 1227–28. We presume by “outdoor facilities,” the district
court meant ADAAG’s 2002 supplement on “Recreation
Facilities.” See ADAAG § 15. The district court reasoned
that because ADAAG did not apply to parks and playgrounds,
the proposed standards must have been applicable. Id. But
as already discussed, ADAAG applies to parks and
playgrounds. Moreover, the 2002 supplement was not
binding because DOJ never adopted the supplement as part of
its own standards. See Goddard, 603 F.3d at 674. Kirola’s
experts were correct to avoid applying ADAAG’s proposed
standards for “Recreation Facilities” because they were not
binding.
34 KIROLA V. CITY & CTY. OF SAN FRANCISCO
The district court further erred in criticizing Kirola’s
experts for their approach to measuring the slopes of curb
ramps. Kirola’s experts measured slope by recording the
“maximum localized variation,” which is the steepest
individual point along the slope of a ramp. Kirola, 74 F.
Supp. 3d at 1223. The district court thought that Kirola’s
experts should have instead considered the overall “rise in
run,” which is the average slope of the ramp. Id. But for a
mobility-impaired user like Kirola, it is the steepest
point—not the average steepness—that determines whether
a particular ramp is accessible. In 2007, DOJ issued an
“ADA Best Practices Tool Kit” that recognized this point,
stating that “rise over run” is “not useful when assessing the
accessibility of a feature that has already been
constructed. . . . [I]t assumes that the slope over the length of
the run is consistent, which is often an inaccurate
assumption.” See ADA Best Practices Tool Kit, Introduction
to Appendices 1 and 2, available at https://www.ada.gov/
pcatoolkit/introapp1and2.htm. DOJ’s approach in the ADA
Best Practices Tool Kit is an interpretation of its own
regulations, so it “is entitled to significant weight as to the
meaning of the regulation.” Miller, 536 F.3d at 1028. The
district court erred in finding Kirola’s experts less credible
because of their approach to measuring slope. Because it is
the steepest point on the ramp that affects whether a
wheelchair user can navigate the ramp, it is the maximum
localized variation, used by Kirola’s experts, rather than the
average slope, used by the City’s experts, that is the correct
benchmark. In any event, it was at least permissible and not
a ground for discrediting Kirola’s experts for them to stress
maximum slope as a key to accessibility.
We are not saying that every legal interpretation by the
district court affecting its credibility finding was erroneous.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 35
For example, the district court properly faulted Kirola’s
experts for applying ADAAG to all curb ramps without first
identifying whether those ramps were constructed or altered
after January 26, 1992, thereby bringing them within
ADAAG’s purview.8 Kirola, 74 F. Supp. 3d at 1223. The
district court also correctly criticized Kirola’s experts for not
taking into account dimensional tolerances, for which
ADAAG specifically provides.9 See ADAAG § 3.2 (“All
dimensions are subject to conventional building industry
tolerances for field conditions.”). But insofar as the district
court misinterpreted applicable law, those misinterpretations
led the court to an incorrect conclusion about credibility, and
ultimately, to the wrong conclusion about the extent of
noncompliance with ADAAG.
We are aware of and do not recede from the principle that
trial court credibility findings are entitled to special
8
This criticism by the district court was proper, however, only as to
Kirola’s claims under 28 C.F.R. § 35.151. For her claims under 28 C.F.R.
§ 35.150—her program access claims—compliance with ADAAG is
relevant whether the facility is existing, or newly constructed or altered.
This is because while the regulatory standard for claims under 28 C.F.R.
§ 35.150 is access on a program-wide basis, plaintiffs sometimes prove
lack of programmatic access by showing that many individual barriers to
access exist in the program. In evaluating these individual barriers,
ADAAG’s standards provide guidance. See Pascuiti v. N.Y. Yankees,
87 F. Supp. 2d 221, 226 (S.D.N.Y. 1999) (“[E]ven though only new
construction and alterations must comply with the [ADAAG], those
Standards nevertheless provide valuable guidance for determining whether
an existing facility contains architectural barriers.”).
9
Many of ADAAG’s requirements do not involve dimensions. See,
e.g., ADAAG § 4.8.5(1) (“Handrails shall be provided along both sides of
ramp segments.”). A failure to consider dimensional tolerances has no
effect on the application of these requirements.
36 KIROLA V. CITY & CTY. OF SAN FRANCISCO
deference. Allen v. Iranon, 283 F.3d 1070, 1078 n.8 (9th Cir.
2002). But the district court’s approach to Kirola’s experts’
credibility was based on legal errors. We remand for
reevaluation of the extent of ADAAG noncompliance.
V
We next address Kirola’s claims related to existing
facilities. Under 28 C.F.R. § 35.150(a), public entities must
“operate each service, program, or activity so that the service,
program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.”
Meeting this standard does not “[n]ecessarily require a public
entity to make each of its existing facilities accessible to and
usable by individuals with disabilities.” Id. § 35.150(a)(1).
It also does not require structural changes to existing
facilities, if “other methods, such as relocating services to
different buildings, would be effective.”10 Cohen v. City of
Culver City, 754 F.3d 690, 696 (9th Cir. 2014); 28 C.F.R.
§ 35.150(b)(1). The regulation requires only that, “when
viewed in its entirety,” the program at issue be accessible.
On appeal, Kirola challenges the district court’s program
access rulings only as to the public right-of-way and RecPark
programs. She first contends that for both of these programs,
the district court applied the wrong standard. Kirola points to
the district court’s statement that for her to prevail, each
program had to be “inaccessible,” or “unusable,” “in its
entirety.” Kirola, 74 F. Supp. 3d at 1240, 1250. Kirola
contends based on this language—and nothing more—that
10
If a public entity decides to make structural changes to an existing
facility, however, those changes must comply with ADAAG. See
28 C.F.R. § 35.150(b)(1) (citing id. § 35.151).
KIROLA V. CITY & CTY. OF SAN FRANCISCO 37
the district court required her to prove that no part of the
City’s right-of-way or RecPark programs was accessible. But
we conclude that Kirola misreads the district court. By
“inaccessible,” or “unusable,” “in its entirety,” the district
court appears to us to have meant inaccessible or unusable
when viewed in its entirety.
Kirola next contends that even under the correct
standard—“when viewed in its entirety”—she proved that the
public right-of-way and RecPark programs were inaccessible.
We disagree.
As to the public right-of-way, we agree with the district
court that Kirola and the other class members’ anecdotal
testimony about cracked pavement, potholes, uneven
sidewalks, and missing or difficult-to-use curb ramps did not
establish inaccessibility at a programmatic level. See id. at
1251. As far as we can tell from the record, no class member
testified that there were locations in the city that such class
member could not reach because of access barriers.
The testimony of Kirola’s experts fares no better on this
particular issue. Expert Mastin inspected 1,432 curb ramps
and identified 1,358 as inaccessible; expert Steinfeld
conducted fourteen site inspections and found thirteen
inaccessible; and expert Margen inspected ten intersections
of street corners and found “major barriers to accessibility.”
Id. at 1222. But despite this partially supportive testimony,
this evidence describes only a small part of the City’s
“approximately 2,000 miles of sidewalks, 27,585 street
corners, and roughly 7,200 intersections.” Id. at 1205. The
district court also identified several problems with Kirola’s
experts’ analysis, including that they did not consider certain
“critical measurements,” did not account for dimensional
38 KIROLA V. CITY & CTY. OF SAN FRANCISCO
tolerances, used inconsistent measurement techniques, and
relied on potentially unqualified individuals to assist with
surveys. Id. at 1222–23. Kirola has not shown that these
criticisms were clearly erroneous.
Kirola’s best piece of evidence for inaccessibility at a
programmatic level was probably expert Seamon’s graphical
representation showing a map of curbs lacking ramps and
curb ramps with low condition scores. See id. at 1224. But
the district court found Seamon’s representation misleading
because (1) it did not show accessible curbs when they were
near inaccessible ones, and (2) it relied on outdated data.
Kirola has not shown that these findings were clearly
erroneous either.
Finally, the trial record included evidence that the City’s
Municipal Transportation Agency provides both public
transportation and paratransit services as part of the public
right-of-way. Id. at 1205. The paratransit service in
particular includes van and taxi service for disabled
individuals. Id. The public transportation and paratransit
services are the sorts of “other methods” that can satisfy
program access even if other particular methods of
benefitting from the program are inaccessible. 28 C.F.R.
§ 35.150(b)(1); see Daubert, 760 F.3d at 988 (holding that
high school football games met program access standard
where bleachers were inaccessible but other accessible
locations provided unobstructed views of the field). In sum,
we conclude that Kirola has not shown that the City operates
its public right-of-way in a deficient manner so that the
program, when viewed in its entirety, is not readily accessible
to and usable by individuals with disabilities.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 39
We reach the same conclusion regarding San Francisco’s
RecPark program. Kirola and the other class members
testified to encountering barriers at some parts of various
parks. Kirola, 74 F. Supp. 3d at 1219–20. But their
anecdotal experiences do not establish that the RecPark
program, consisting of 220 parks and 400 structures, is
inaccessible when viewed in its entirety. Kirola’s experts
inspected 13 parks, 7 mini-parks, and 16 playgrounds, finding
access barriers at many of them. Id. at 1227. But their
analysis still covered only a small fraction of the City’s total
park offerings. The same goes for her experts’ analysis of
recreation centers and clubhouses, where they inspected only
thirteen of the City’s total seventy-three. Id. Moreover, after
expert Mastin inspected eleven recreation centers, he
concluded that only four were inaccessible. Id.
The City does not dispute that its parks contain some
access barriers. MOD at one point concluded that the
RecPark program contained roughly 400 such barriers. Id. at
1230. But the presence of these barriers does not establish
that the RecPark program was inaccessible when viewed as
a whole. We sympathize with the frustration of mobility-
impaired individuals who may show up to many of San
Francisco’s parks and then find themselves shut out. But
perfect accessibility is not the applicable standard under
28 C.F.R. § 35.150. We also note that the City operates a
website that gives information on the accessibility of its
various parks, information that can help disabled persons plan
which parks to visit.
Kirola argues that certain parks offer unique benefits, and
that when those parks are inaccessible, the existence of other,
accessible parks does not provide an adequate substitute. For
example, she asserts that Golden Gate Park provides
40 KIROLA V. CITY & CTY. OF SAN FRANCISCO
inaccessible benefits such as a Model Yacht Clubhouse, a
Rose Garden, and a Shakespeare Garden, among other
amenities, that are unique to Golden Gate Park. But program
access does not operate at such a narrow level of review. See
Daubert, 760 F.3d at 988. There may be something unique
about every park and every facility. But 28 C.F.R. § 35.150requires only that the program as a whole be accessible, not
that all access barriers—and not even all of those at the most
iconic locations—be remedied.
Finally, Kirola contends that the City’s own definition of
an “accessible park” is too lenient to ensure meaningful
access. On the RecPark website, the City defines an
“accessible park” as one that has an “accessible entry” and “at
least one accessible recreational opportunity.” Kirola, 74 F.
Supp. 3d at 1216. But as the district court recognized, the
City does not use this definition as its standard for ensuring
program access. Id. at 1263. Rather, the City uses the
definition as part of its effort to inform disabled individuals
about which parks they may or may not be comfortable
visiting. The above considerations lead us to conclude that
Kirola has not met her burden of proving a lack of program
access to the City’s park system.
At bottom, Kirola’s program access claims fail for lack of
proof. She did not present evidence sufficient to show that
the City’s public right-of-way and RecPark programs, when
viewed in their entirety, were not readily accessible to and
usable by individuals with disabilities. The district court
properly rejected Kirola’s program access claims. We affirm
the district court’s program access holdings.
KIROLA V. CITY & CTY. OF SAN FRANCISCO 41
VI
In sum, we hold that the district court’s credibility
determinations were based on legal errors and that its
conclusion regarding the scope of ADAAG noncompliance
was erroneous. We also hold that the district court properly
concluded that Kirola had not proven program access
violations. On remand,11 the district court shall apply
ADAAG as we have interpreted it, and reevaluate the extent
of ADAAG noncompliance. Once the scope of any ADAAG
violations at facilities used by Kirola and all other class
members has been determined, the district court shall revisit
the question of whether injunctive relief should be granted in
light of the scope of violations determined by the district
court, and the Supreme Court’s required standards. See
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010);
11
Kirola requests that this case be reassigned on remand. She
contends that reassignment is necessary because (1) the district court, in
her view, focused almost entirely on the City’s arguments to the exclusion
of her own, and (2) more than three-and-a-half years passed between the
close of trial and the district court’s decision. We decline to reassign this
case. Though the district court erred in its conclusion regarding the extent
of facilities out of compliance with ADAAG, the district court did not
display partiality, and we have no reason to believe that it will not
faithfully apply our instructions on remand. Moreover, the substantial
period between the end of trial and the district court’s decision was
consumed with post-trial briefing, not needless delay. This case does not
present the sort of “rare and extraordinary circumstances” that merit
reassignment. Krechman v. Cty. of Riverside, 723 F.3d 1104, 1112 (9th
Cir. 2013) (internal quotation marks omitted).
42 KIROLA V. CITY & CTY. OF SAN FRANCISCO
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008);
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).12
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED, with instructions.
12
There are two motions currently pending in our docket, The Motion
to Exceed the Type Volume Limitation for Brief of Amicus Curiae, The
Legal Aid Society – Employment Law Center, filed with this court on
November 9, 2015, and Appellants’ Request for Judicial Notice, filed with
this court on July 15, 2016. Both motions are GRANTED.