George v. Bart ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERON GEORGE; SHARRICCI 
FOURTE-DANCY,
Plaintiffs-Appellees, No. 07-15661
v.  D.C. No.
CV-00-02206-CW
BAY AREA RAPID TRANSIT,
Defendant-Appellant.

SHERON GEORGE; SHARRICCI 
FOURTE-DANCY,
Plaintiffs-Appellees, No. 07-15896

UNITED STATES OF AMERICA, D.C. No.
Appellant, CV-00-02206-CW
v. OPINION
BAY AREA RAPID TRANSIT,
Defendant.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued September 11, 2008
Submitted August 5, 2009
San Francisco, California
Filed August 13, 2009
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
10923
10926 GEORGE v. BAY AREA RAPID TRANSIT
COUNSEL
Patricia Barbosa, Law Offices of Paul L. Rein, Oakland, Cali-
fornia argued the cause for plaintiffs-appellees and filed a
brief. Paul Rein and Julie Ostel, Law Offices of Paul L. Rein,
Oakland, California, and Bryce Anderson, Law Office of
Bryce Anderson, Brentwood, California were on the brief.
Joseph Hearst, Berkeley, California argued the cause for Bay
Area Rapid Transit and filed briefs. Clement Glynn and James
Hanlon, Glynn & Finley LLP, Walnut Creek, California were
on the briefs.
Karl Gellert, U.S. Department of Justice, Washington, D.C.,
argued the cause for intervenor-appellant and filed the briefs.
GEORGE v. BAY AREA RAPID TRANSIT 10927
Rena Comisac, Acting Assistant Attorney General, and Mark
Gross were on the briefs.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether sight-impaired transit riders can
recover under the Americans with Disabilities Act where a
public transit service system complies with existing federal
design regulations for train station accessibility.
I
A
1
Sheron George had congenital cataracts. By 1998, her
vision had become impaired to the point that she was declared
legally blind.1 George valued her independence, and because
she could not drive, relied on services provided by Bay Area
Rapid Transit District (“BART”) and other public transporta-
tion services to get around. She found it particularly difficult
to negotiate stairs because of her limited depth perception.
However, she was able to use stairs if they were painted or
marked a different color to show the location of each step.
She was taught to follow the movement of others to avoid get-
ting lost when she entered or exited public places. She had
never attempted to use BART’s so-called accessible or uni-
versal routes in its train stations.
One day, George was walking from a bus to a BART train
station when she fell down a set of stairs. She reported that
1
George has since died; her personal representative is continuing this
case.
10928 GEORGE v. BAY AREA RAPID TRANSIT
she “did not see any markings or any other indication that
[she] was approaching a stair until [she] suddenly stepped off
into thin air.” She also noted that she was in great pain as a
result of her fall and was taken to the hospital the next day.
Four days later, George fell again when she attempted to use
what was (unbeknownst to her) a closed entrance. She stated
in an affidavit that she was severely hurt and asked BART to
call an ambulance.
George’s eyesight improved in 2001 to the point that she
was no longer legally blind. However, she reported that after
her falls she developed physical disabilities that significantly
impaired her mobility and was prescribed a wheelchair due to
those disabilities.
2
Sharricci Fourte-Dancy2 had partial sight in both eyes, with
corrected vision of 20/200 in one eye and 20/100 in the other.3
Her depth perception and peripheral vision were limited; her
night vision was even more significantly impaired. As of
2002, she was a student at California State University at Hay-
ward and used public transportation (including BART) to
attend school and for other purposes. She reported anxiety
when using some of BART’s stations because they were not
equipped with color contrast striping or accessible handrails.
She did not have the visual acuity necessary to locate a desig-
nated accessible route on her own because she could not read
signs in public places unless she was very close to them.
Fourte-Dancy reported feeling unsafe when isolated from the
general public, and stated that the BART elevators she knew
of were too isolated. For these two reasons, she “would not
and [could not] use the ‘universal route’ that BART claims
2
Fourte-Dancy’s name is spelled differently in some district court docu-
ments. We use the spelling used by her counsel in this case.
3
The facts recited were true as of April 25, 2002. We are unaware of
Fourte-Dancy’s current status.
GEORGE v. BAY AREA RAPID TRANSIT 10929
was intended and designed for blind and low vision persons.”
She reported, however, that she could use facilities “with a
few minor modifications,” such as color contrast striping and
accessible handrails.
Fourte-Dancy reported that the lack of color contrast strip-
ing and the excessively wide handrails almost caused her to
fall at BART’s MacArthur train station. She also reported that
the glare from the color contrast steps at the 19th Street sta-
tion also caused her difficulty in using the stairs.
B
George and Fourte-Dancy (to whom we refer as “transit
riders”) sued BART in the United States District Court for the
Northern District of California, alleging violations of the
Americans with Disabilities Act (“ADA”), the Rehabilitation
Act of 1973, and California civil rights laws.4
In the district court, both sides agreed that BART’s facili-
ties complied with the Department of Transportation (“DOT”)
regulations, which require that each light rail station have “at
least one accessible route from an accessible entrance to those
areas necessary for the use of the transportation system.” 56
Fed. Reg. 45,500, 45,510 (Sept. 6, 1991). DOT regulations
are required by statute to be consistent with the ADA Accessi-
bility Guidelines (“ADAAG”) in effect at the time. Such spe-
cific technical guidelines implementing the ADA are issued
by the Architectural and Transportation Barriers Compliance
Board (“Board”), an independent agency.5 Nevertheless, the
4
Four of BART’s stations must meet certain requirements imposed by
the ADA. After the passage of the ADA, each of these stations was modi-
fied to provide a route for individuals with disabilities. The transit riders
claim that the routes do not meet the needs of visually disabled persons.
5
The Board has thirteen members appointed by the President from the
general public (of whom at least seven must be persons with disabilities)
and a representative from each of twelve federal agencies. 29 U.S.C.
10930 GEORGE v. BAY AREA RAPID TRANSIT
district court found that such DOT regulations were “both
arbitrary and plainly contrary to the statute.” Because “the
ADA requires that public transportation programs be accessi-
ble to all patrons with disabilities,” “[t]he DOT regulations
are arbitrary and capricious to the extent that they fail to ful-
fill this mandate by failing to address the needs of those with
visual impairments.” A stipulated judgment required BART to
pay attorney’s fees and costs, as well as $35,000 in compensa-
tory damages. In addition, BART was required to take seven
specific steps to improve the accessibility of some of its facili-
ties to those with vision impairments.
BART appealed the district court’s decision to this court,
whereupon the United States was granted leave to file a brief
as amicus curiae. On April 21, 2006, we vacated the district
court’s decision and remanded the case to the district court so
the United States could intervene as a party, which the United
States promptly did. See George v. Bay Area Rapid Transit
Dist., 175 F. App’x 809 (9th Cir. 2006). Following remand,
the district court again found the DOT regulations to be arbi-
§ 792. Congress directed the Board to publish minimum accessibility
guidelines. 42 U.S.C. § 12204. The Department of Transportation was
required to make its regulations “consistent” with those guidelines. 42
U.S.C. § 12149(b). In 1991, the Board issued the ADAAG after receiving
over 400 comments, including comments about individuals with visual
disabilities. For instance, the Board received comments about the use of
large characters on signs, design criteria for use in aiding those with visual
disabilities, and other matters. 56 Fed. Reg. 45,500, 45,503 (Sept. 6,
1991).
DOT then issued its ADA regulations. DOT’s regulations are consistent
with the Board’s guidelines. 49 C.F.R § 37.9 (“[A] transportation facility
shall be considered to be readily accessible to and usable by individuals
with disabilities if it meets the requirements of this part and the require-
ments set forth in Appendices B and D to 36 CFR part 1191 [i.e., the
ADAAG requirements], which apply to buildings and facilities covered by
the Americans with Disabilities Act, as modified by Appendix A to this
part.”).
GEORGE v. BAY AREA RAPID TRANSIT 10931
trary and capricious. BART and the United States both now
timely appeal.
II
The United States argues that the district court erred by
declaring the DOT regulatory scheme arbitrary and capricious.6
A
DOT was required to issue regulations to make “key sta-
tions” readily accessible to and useable by persons with visual
impairments. See 42 U.S.C. § 12147(b)(1); id. §§ 12134(a),
12143, 12149, 12164. The United States argues that DOT has,
in fact, done so. We agree; the DOT regulations are not arbi-
trary or capricious because the DOT did address the needs of
those with visual disabilities, although perhaps not to the level
the transit riders would have preferred.
DOT regulations address these needs, in part, through a
performance standard. The Board had explicitly included in
ADAAG a provision requiring facilities to be designed to
minimize the distance which wheelchair users and other per-
sons who cannot negotiate steps may have to travel compared
to the general public. The performance standard addresses
“persons who cannot negotiate steps,” and the Board enacted
the performance standard to aid the visually disabled. See 56
6
In their response brief, the transit riders suggest that Chevron deference
is not appropriate because the statutory language is clear. We disagree.
The statutory command for DOT to issue regulations is fatal to the transit
riders’ suggestion, since administrative rulemaking inherently involves
addressing specifics not addressed in the underlying legislation. See Chev-
ron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44
(1984) (“If Congress has explicitly left a gap for the agency to fill, there
is an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation. Such legislative regulations are
given controlling weight unless they are arbitrary, capricious, or mani-
festly contrary to statute.”).
10932 GEORGE v. BAY AREA RAPID TRANSIT
Fed. Reg. 45,500, 45,504 (Sept. 6, 1991) (“The [preliminary
rules] required designers to lay out stations in a straightfor-
ward manner, both to reduce the distance a person with a dis-
ability would need to travel and to encourage consistency in
design to assist all persons, but especially persons with cogni-
tive, visual or stamina-limiting disabilities to locate various
elements expeditiously.” (emphases added)). Earlier, the
Board considered whether “steps should have contrasting nos-
ings or thread markings” but concluded that it was “not aware
of any research that” supported such a recommendation. 56
Fed. Reg. 35,408, 35,432 (July 26, 1991). Consistent with the
Board’s decisions, DOT included the performance standard in
its regulations, but did not require contrasting nosings or
thread markings.
Furthermore, the DOT regulations require many other fea-
tures to aid those with visual disabilities. For instance, signs
used to indicate the direction of the accessible route must use
a wheelchair icon and meet certain typeface requirements. Id.
at 45,510. Certain steps to minimize glare are required, id.,and tactile warnings must be placed near platform edges. Id.
at 45,508.7
The transit riders counter that “readily accessible to and
usable by” means “a high degree of convenient accessibility.”
H.R. 101-485(III), 1990 U.S.C.C.A.N. 445, 483 (1990). How-
ever, they merely replace one vague phrase with another,
doing little to aid us in deciding whether DOT’s regulations
are arbitrary and capricious.
[1] “A decision is arbitrary and capricious if the agency [1]
has relied on factors which Congress has not intended it to
consider, [2] entirely failed to consider an important aspect of
the problem, [3] offered an explanation for its decision that
7
Requirements of a more general nature (e.g., specifications to make
elevators accessible to those with visual disabilities) are found elsewhere
in ADAAG.
GEORGE v. BAY AREA RAPID TRANSIT 10933
runs counter to the evidence before the agency, or [4] [has
offered an explanation] so implausible that it could not be
ascribed to a difference in view or product of agency exper-
tise.” United States v. Snoring Relief Labs, Inc. 210 F.3d
1081, 1085 (9th Cir. 2000) (internal quotation marks omitted,
bracketed numbers added).
There is no evidence that DOT considered impermissible
factors. The regulations demonstrate that DOT did not
entirely fail to consider the needs of those with visual disabili-
ties. Nor is there any reason to think that the overall set of
regulations runs counter to the evidence or is implausible.
B
Nor did DOT act arbitrarily and capriciously by failing to
consider the needs of those persons with severe vision impair-
ments who require information regarding the accessible route.8
The Board had considered, but rejected, requiring duplicate
tactile signs where there were visual signs because it would
require station managers to keep two different sets of signs.
56 Fed Reg. 45,500, 45,505 (Sept. 6, 1991).9 Likewise, DOT
regulations do not require duplicate tactile signs. However,
DOT does provide for some directional assistance for people
with visual disabilities in its rules on signage. We cannot con-
clude that DOT completely failed to consider an important
part of the task before it.
8
It is unclear from the record whether the transit riders would use the
accessible routes even if directional information were made available.
Because we conclude that the regulations are not arbitrary and capricious,
we need not remand to the district court for factfinding.
9
The Board voted that “[n]o provision has been added to address the
needs of persons with severe vision impairments who require directional
information regarding the accessible route because the Board has very lit-
tle information to adequately address the wayfinding needs of such per-
sons at this time.” Id.10934 GEORGE v. BAY AREA RAPID TRANSIT
There was no evidence before DOT which compelled a dif-
ferent conclusion. Nor is there any evidence that it considered
impermissible factors. See City of Olmsted Falls, Ohio v.
FAA, 292 F.3d 261, 271 (D.C. Cir. 2002) (“[T]he party chal-
lenging an agency’s action as arbitrary and capricious bears
the burden of proof . . . . Indeed, even assuming the [agency]
made missteps . . . the burden is on petitioners to demonstrate
that the [agency’s] ultimate conclusions are unreasonable.”)
(internal punctuation and citations omitted).
C
In defense of the district court decision, the transit riders
cite Motor Vehicle Manufacturers Association of the United
States, Inc. v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29 (1983). There, the Supreme Court held that the
revocation of certain automobile safety regulations was arbi-
trary and capricious. However, the Motor Vehicle court
expressly stated that there was a significant difference
between declining to regulate in the first place and rescinding
a regulation, at least where rescissions were expressly made
subject to the same judicial review as issuance of regulations.
See id. at 41 (“[N]either th[e] Act nor the APA suggests that
revocations are to be treated as refusals to promulgate stan-
dards.”).
Nor does Massachusetts v. EPA, 549 U.S. 497 (2007), dem-
onstrate that DOT has acted in an arbitrary and capricious
manner. There, the Supreme Court held that the EPA’s failure
to ascertain whether greenhouse gases caused climate change
was arbitrary and capricious. However, in that case “[t]he
harms associated with climate change [were] serious and well
recognized.” Id. at 521. The EPA simply ignored the evidence
of global warming, choosing not to delve into the area
because it believed that regulation would undermine the
Nation’s foreign policy objective of inducing “key developing
nations” to reduce their greenhouse gas emissions. Id. at 533(noting that such notions “have nothing to do with whether
GEORGE v. BAY AREA RAPID TRANSIT 10935
greenhouse gas emissions contribute to climate change”). It is
in this sense that the Court concluded that the EPA sought a
“roving license to ignore the statutory text.” Id.. The com-
bined judgment of the Board and DOT about wayfinding
needs, by contrast, has everything to do with their specific
areas of technical expertise: evaluating technologies and
accommodations for those with disabilities and transportation
issues, respectively.
D
It may well be sensible to require accessible handrails, con-
trast striping on stairs, and other such measures to promote
accessibility. However, it is not up to this court to decide what
is reasonable or sensible in this regard; instead, our task is to
ascertain BART’s legal obligations. Unless DOT regulations
are arbitrary and capricious, BART is required to do no more
than follow them.
[2] DOT did not entirely ignore the needs of persons with
visual disabilities. Likewise, DOT did not act arbitrarily and
capriciously by entirely ignoring the wayfinding needs of
those with visual disabilities, because it did consider the needs
of that group. No showing has been made that the agency
made regulations against the weight of the evidence before
the agency or that it offered an explanation so implausible that
it cannot be accepted. Therefore, the regulations cannot be
held to be arbitrary and capricious on the record before us.
III
[3] BART claims that even if it violated the ADA, it is
immune from liability under a safe harbor provision of 49
C.F.R. § 37.9. In support of its position, BART notes that 42
U.S.C. § 12150 provides a similar safe harbor, stating that
compliance with existing federal accessibility standards in
construction completed after the passage of the ADA but
before DOT regulations were issued “shall suffice to satisfy
10936 GEORGE v. BAY AREA RAPID TRANSIT
the requirement that facilities be readily accessible to and
usable by persons with disabilities as required under” sections
12146 and 12147. If the facility is completed at least one year
after ADAAG guidelines had been issued, but before the DOT
regulations implementing them had been issued, then compli-
ance with the ADAAG “shall be necessary to satisfy the
requirement that facilities be readily accessible to and usable
by persons with disabilities prior to issuance of the final regu-
lations.” Id. As BART correctly argues, the clear implication
is that once final DOT regulations are issued, transit entities
will be able to comply with the ADA by following those regu-
lations.
Additionally, BART points to a number of cases which
hold that a defendant cannot be liable for the design of a facil-
ity if it comports with the implementing regulations.10 BART
argues that these cases, which arise under Title III of the ADA
and address facility design by private entities, are applicable
10
See, e.g., Sanford v. Del Taco, 2006 WL 2669351, at *2 (E.D. Cal.
Sept. 18, 2006) (“ADAAG . . . provides the standard for determining a
violation of the ADA.”); Massachusetts v. E*Trade Access, Inc., 2005 WL
2511059, at *4 (D. Mass. Feb. 22, 2005) (“The statutory language and
structure of the ADA indicate that Congress intended that the DOJ’s regu-
lations and the ADAAG, when passed, would set forth standards sufficient
to satisfy ADA obligations; the DOJ’s regulations therefore establish the
limits of ADA liability.”); United States v. Nat’l Amusements, Inc., 180 F.
Supp. 2d 251, 258 (D. Mass. 2001) (“The Court infers from ADA § 306(d)
that Congress intended that the Attorney General’s regulations and the
Access Board’s guidelines, when passed, would similarly set forth the
standards, which, if followed, would be sufficient to satisfy Title III obli-
gations with respect to the design of a structure.”); see also Chapman v.
Pier 1 Imports, 2006 WL 1686511, at *7 n.11 (E.D. Cal. June 19, 2006)
(“[Because of ADAAG, t]he court is not authorized to evaluate Title III
disability discrimination claims under any other standard, and to determine
what engineering or architectural modifications are necessary, or whether
such modifications would be feasible and desirable.”); Eiden v. Home
Depot USA, Inc., 2006 WL 1490418, *8 (E.D. Cal. May 26, 2006) (“This
language also plainly implies that compliance with the ADAAG, and not
another standard, constitutes compliance with the ADA requirements for
new construction.”).
GEORGE v. BAY AREA RAPID TRANSIT 10937
because the US Department of Justice (“DOJ”) has virtually
the same authority in Title III as DOT has in Title II and both
sets of regulations incorporate ADAAG. The transit riders
have not provided a cogent explanation as to why the court
should not consider Title III cases where both titles rely on
ADAAG. On the contrary, BART has identified a very clear
policy rationale supporting its position:
The interpretation of the ADA proposed by . . . [the
transit riders] is very problematic. It would allow
any person to file an action contending that, in the
opinion of this particular plaintiff, a design feature
ought to have been included in . . . [a] structure. The
courts are ill-equipped to evaluate such claims and to
make what amount to engineering, architectural, and
policy determinations as to whether a particular
design feature is feasible and desirable . . . . It also
would be difficult for anyone to design a . . . struc-
ture if the design requirements are subject to being
changed retroactively.
Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 746
(D. Or. 1997).
[4] BART notes that those who find the ADAAG guide-
lines or DOT regulations unreasonable may challenge them
under the Administrative Procedure Act (“APA”) (codified as
amended in scattered sections of 5 U.S.C.). The transit riders,
BART argues, “should not be permitted to use the courts . . .
to enact regulations they failed to convince the . . . Board or
the DOT to implement and did not thereafter challenge under
the APA.” We agree.
The transit riders respond by claiming that the safe harbor
does not apply to claims that BART does not operate its facil-
ities in an appropriate manner under 42 U.S.C. § 12148 (pro-
hibiting operating service in a discriminatory manner). They
also claim that general non-discrimination language in 42
10938 GEORGE v. BAY AREA RAPID TRANSIT
U.S.C. § 12132 (prohibiting public entities from denying the
benefit of services, programs, and activities on the basis of
disability) is applicable here, and can be used to find BART
liable in a way that does not implicate the safe harbor.11
If Congress intended that transit agencies could rely on
DOT regulations in the design of their facilities, it defies logic
that the transit agencies’ protection could be taken away
merely by citing a section of the ADA dealing with operations
or one establishing a general non-discrimination rule. That
would make Congress’ enactment of section 12150 without
any effect, because it would offer no protection at all to transit
agencies which followed the rules. It seems unlikely that Con-
gress intended that part of the ADA would be given no effect.
Cf. Williams v. Taylor, 529 U.S. 362, 404 (2000) (“It is . . .
a cardinal principle of statutory construction that we must
give effect, if possible, to every clause and word of a statute.”
(internal citation omitted)). Likewise, the DOT regulatory
safe harbor would be completely lacking if any facilities-
based claim could be recast as a claim about operations, gen-
eral discrimination, or another non-design related problem.
Unless the issuance of § 37.9 was arbitrary and capricious, the
transit riders’ argument against the safe harbor must fail. And
given that the safe harbor in § 37.9 closely tracks the interim
safe harbors Congress provided for, it can hardly be arbitrary
and capricious.12
11
In their brief, the transit riders also suggest that despite BART’s com-
pliance with the DOT regulations, it may be held liable based on other the-
ories. They assert that BART discriminates in favor of some groups of the
disabled and against those with visual disabilities. Furthermore, they argue
that BART is in violation of certain DOJ regulations. These claims cannot
breach the safe harbor for the same reasons that the operation and general
discrimination claims cannot.
12
The transit riders repeatedly assert that the Board has not acted since
1991, despite having ample time to conduct further research concerning
wayfinding assistance. They allege that, notwithstanding the Board’s lack
of action, the failure of DOT to formulate new regulations in a reasonable
amount of time renders the safe harbor arbitrary and capricious.
GEORGE v. BAY AREA RAPID TRANSIT 10939
IV
[5] The parties dispute whether the district court found
BART in violation of California Civil Code section 54.1,
which guarantees “full and equal access” to modes of trans-
portation for those with disabilities.13 However:
“Full and equal access,” for purposes of this section
in its application to transportation, means access that
meets the standards of Titles II and III of the [ADA]
and federal regulations adopted pursuant thereto,
except that, if the laws of [California] prescribe
higher standards, it shall mean access that meets
those higher standards.
Cal. Civ. Code § 54.1(a)(3). If the district court did in fact
rule on the section 54.1 claim, its decision is inconsistent with
our decision today. We must, therefore, vacate the district
court’s ruling insofar as it states that BART is liable under
§ 54.1 due to its noncompliance with the ADA. The transit
riders may, of course, argue on remand that a higher state
standard affords them relief under the statute.
However, the Board and DOT have not failed to act. The revised ver-
sion of the ADAAG (published in 2004 and later implemented by DOT)
does recommend contrast striping on stairs, though it does not require it.
36 C.F.R. § 1191 (App. D, § 504.4). It is notable that after further consid-
eration, the Board chose to recommend — not to require — contrast strip-
ing. At heart, the transit riders’ claim is that the Board has unreasonably
delayed enacting the reforms they favor. They, however, have the burden
of showing that the decision not to require contrast striping or other spe-
cific wayfinding accommodations was against the weight of the evidence
before the agency. They have failed to do so.
13
The district court did state that BART had violated section 54.1, but
apparently predicated that statement on BART’s violation of DOJ regula-
tions which it later held to be inapplicable to BART. There was no men-
tion of section 54.1 in the order granting the transit riders’ cross-motion
for summary judgment in 2007.
10940 GEORGE v. BAY AREA RAPID TRANSIT
V
[6] Consideration of the transit riders’ claims that are not
based on the ADA shall be for the district court on remand.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED. Appellants are
awarded costs.