Lewis "Toby" Tyler v. City of Manhattan, United States of America, Amicus Curiae

118 F.3d 1400, 97 Colo. J. 1022, 6 Am. Disabilities Cas. (BNA) 1748, 1997 U.S. App. LEXIS 16799, 1997 WL 374150

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 8, 1997
• Docket: 94-3344
• Status: Published

Opinions

MURPHY, Circuit Judge.

The plaintiff, Lewis “Toby” Tyler, appeals a district court order striking his claim for compensatory damages under Title II of the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12133. The district court ruled that compensatory damages for mental and emotional injury were not available under the ADA absent intentional discrimination. The district court further concluded that Tyler had not claimed he was subjected to intentional discrimination. Tyler appeals, arguing that he did indeed assert a claim of intentional discrimination. This court has jurisdiction to review Tyler’s claim under 28 U.S.C. § 1291.¹ Because we find that the district court did not abuse its discretion in determining that the pretrial order does not include a claim of intentional discrimination, we affirm. No cause exists for this court to resolve an issue raised not by Tyler but by the United States as amicus: whether compensatory damages are recoverable for unintentional violations of the ADA.

Tyler, a resident of Manhattan, Kansas, is disabled within the meaning of the ADA.² He is partially paralyzed and essentially unable to read. Tyler has taken it upon himself to see that the City of Manhattan complies with the ADA. He complained to the City about the lack of handicapped-accessible parking at City facilities; about the lack of wheelchair access to public restrooms, parks, tennis courts, the zoo and other public facilities; about the City’s failure to make agendas and information packets for public meetings available on audio tape; about the City’s failure to conduct an adequate self-evaluation as required by the ADA; and about the City’s licensing of inaccessible liquor stores.

Dissatisfied with the City’s response to his complaints, Tyler brought this action against the City, alleging in four separate claims that the City had violated Title II of the ADA by (1) failing to meet the minimum requirements for a self-evaluation plan under the ADA; (2) excluding persons with disabilities from participation in and the benefit of City services and programs; (3) “directly utilizing] methods of administration” and “subjecting] Plaintiff to discrimination on the basis of his disability”;³ and (4) licensing and contracting with businesses that are in violation of the ADA. The complaint prayed for relief consistent with the enforcement provisions of the ADA.

The district court granted the City summary judgment on the last count of Tyler’s complaint and generally denied the City’s motion for summary judgment on the remaining counts. See Tyler v. City of Manhattan, 849 F.Supp. 1429 (D.Kan.1994)⁴ Two days later, on April 20,1994, the district court sua sponte struck from the pretrial order Tyler’s compensatory damage claim for mental anguish, humiliation, embarrassment and “denial of his right of participation.” See Tyler v. City of Manhattan, 849 F.Supp. 1442, 1445 (D.Kan.1994).⁵ The court concluded that compensatory damages for emotional distress were not available under the ADA absent intentional discrimination and that Tyler had not alleged intentional discrimination either in his complaint or in the pretrial order. Id. at 1444 & n. 5. The court further ordered that Tyler’s discrimination claim be tried to the court, not to a jury. Id. at 1445.

After Tyler’s remaining claims had been resolved by bench trial,⁶ Tyler filed the instant appeal claiming that the district court had erred in striking his claim for compensatory damages. For his part, Tyler does not contest the district court’s ruling that intentional damages must be pleaded and proved in order to recover compensatory damages for mental and emotional distress under the ADA. Instead, Tyler asserts the district court misinterpreted its pretrial order in determining that it did not contain a claim of intentional discrimination. Accordingly, the only issue on appeal is whether the pretrial order contains a claim of intentional discrimination.

Rule 16(e) of the Federal Rules of Civil Procedure provides as follows:

After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.

An order entered pursuant to Rule 16(e) supersedes the pleadings and controls the subsequent course of litigation. Hullman v. Board of Trustees, 950 F.2d 665, 668 (10th Cir.1991). As this court noted in Hullman, “the pretrial order ‘measures the dimensions of the lawsuit, both in the trial court and on appeal.’” Id. (citations omitted). Because the district court is in the best position to interpret its pretrial order, our standard of review on appeal is abuse of discretion. See Perry v. Winspur, 782 F.2d 893, 894 (10th Cir.1986).

We have reviewed the pretrial order and agree with the district court that the order does not describe acts of intentional wrongdoing. Instead, it is apparent that the order describes acts and omissions which have a disparate impact on disabled persons in general but not specific acts of intentional discrimination against Tyler in particular. Furthermore, there are no allegations in the pretrial order that the City was motivated by animus toward the disabled generally or Tyler specifically.

Despite the fact that Tyler did not raise the issue, amicus curiae, the United States, argues that Tyler is entitled to seek compensatory damages for violations of Title II of the ADA without alleging intentional discrimination. We choose not to address this argument because it was not raised by a party to this appeal. It is instead an attempt by amicus to frame the issues on appeal, a prerogative more appropriately restricted to the litigants. See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 731 (3d Cir.), cert. denied, — U.S.-, 116 S.Ct. 306, 133 L.Ed.2d 210 (1995); Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 705 n. 22 (1st Cir.), cert. denied, 513 U.S. 919, 115 , 130 L.Ed.2d 211 (1994); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1581 n. 9 (9th Cir.1986).

Although this circuit has yet to address the issue, it is clear that this panel has the discretion to reach arguments raised only in an amicus curiae brief. See Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 1069-70,103 L.Ed.2d 334 (1989). It is equally clear, however, that we should exercise that discretion only in exceptional circumstances. See Resident Council v. HUD, 980 F.2d 1043, 1049 (5th Cir.), cert. denied, 510 U.S. 820, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993); Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240, 1247 (11th Cir.1991); Wiggins Bros. v. Department of Energy, 667 F.2d 77, 83 (Temp.Emer.Ct.App.1981), cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982).

Our review of the relevant case law demonstrates that it is truly the exceptional case when an appellate court will reach out to decide issues advanced not by the parties but instead by amicus. In Swan v. Peterson, for instance, the Ninth Circuit refused to consider whether a criminal defendant can be convicted on the basis of hearsay alone because the issue was raised by amicus rather than the appellant. 6 F.3d 1373, 1383 (9th Cir. 1993), cert. denied, 513 U.S. 985, 115 S.Ct. 479, 130 L.Ed.2d 393 (1994). In considering the question of what constitutes exceptional circumstances, the Ninth Circuit has concluded that it will exercise its discretion only when (1) a party attempts to raise the issue by reference to the amicus brief; or (2) the issue “involves a jurisdictional question or touches upon an issue of federalism or comity that could be considered sua sponte.” Id.

Applying the Ninth Circuit’s analysis to the case at hand, we decline to address the issue raised by amicus. Tyler did not adopt amicus ’ argument by reference in his brief and none of the other exceptions referenced by the Ninth Circuit apply. Furthermore, neither the parties nor amicus have identified any other exceptional circumstance to justify this court’s resolution of the issue presented solely by amicus. As a consequence, Tyler has chosen to affirmatively waive the question of whether he could recover compensatory damages absent an allegation of intentional discrimination and we correspondingly do not address the issue.

Because we agree with the district court that the pretrial order does not allege intentional discrimination on the part of the City, we AFFIRM the order of the district court striking Tyler’s claim for compensatory damages.

1 . The City suggests that the district court's judgment was not a final, appealable judgment because it ordered only injunctive relief and the district court necessarily retains jurisdiction over the parties until they have complied with the terms of the injunction. The fact that the district court may retain jurisdiction over the parties to enforce its judgment does not convert the judgment to an interlocutory order for purposes of appeal. See, e.g., United States v. Local 30, United State, Tile & Composition Roofers, 871 F.2d 401, 403 (3d Cir.), cert. denied, 493 U.S. 953, 110 S.Ct. 363, 107 L.Ed.2d 350 (1989). An order or judgment is final for purposes of appeal if it resolves all substantive issues on the merits and effectively ends the litigation. See, e.g., Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945); Turnbull v. Wilcken, 893 F.2d 256, 257 (10th Cir.1990). The judgment in this case, ordering injunctive relief, resolved all remaining issues on the merits and effectively ended the litigation. The fact that the original judgment left open the issue of costs and attorney fees did not deprive the judgment of finality for purposes of appeal. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988). There was thus a final, appealable order, and Tyler was free to appeal from anything in that judgment or the court's prior orders that "dissatisfied him.” See Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir.1985).

2 . The ADA defines "disability” to include "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” 42 U.S.C. § 12102(2)(A).

3 . This third claim was dropped in the pretrial order, and the fourth claim was renumbered Count III.

4 . The court granted the City partial summary judgment on Count II to the extent Tyler claimed that the City had barred him from participating in preparation of the City’s self-evaluation and transition plan under the ADA. Tyler v. City of Manhattan, 849 F.Supp. 1429, 1440 (D.Kan. 1994).

5 . The court construed Tyler's damage claim for denial of his right of participation "as one for emotional distress as a result of being denied the opportunity to participate in City programs, services, and activities.” Tyler, 849 F.Supp. at 1443 n. 3.

6 . On the first count of the complaint, the district court found that the City's self-evaluation and transition plans did not comply fully with federal regulations. On the plaintiff's second claim, the district court found that the City had discriminated against Tyler based on his disability by not providing a means for him to attend a City Commission meeting when the elevator at the City hall was out of order; by retaining physical barriers at City parks which impede wheelchair access and thus exclude him from participation in certain recreational activities; and by effectively denying him access to the restroom facilities at the City's municipal court building. The court rejected Tyler's other specific claims of discrimination. The court ordered the City to adopt a schedule for installing curb ramps and to complete a self-evaluation of its current services, policies and practices consistent with federal regulations. The court also ordered the City to relocate any City-sponsored ball games to an accessible field and not to sponsor any activities at the inaccessible field until it is made accessible to the disabled. Finally, the court ordered the City to modify the steel barricade blocking the entrance to another park. See Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan.1994). A judgment was entered reflecting the court’s order and reserving the matter of slatutoiy costs and attorney fees. The City filed a timely motion for clarification or amendment of the court's memorandum decision or in the alternative for a new trial, which was denied. See Tyler v. City of Manhattan, 157 F.R.D. 508 (D.Kan.1994). The district court entered a second judgment denying the City’s motion and Tyler filed his notice of appeal. The court thereafter entered a third judgment awarding plaintiff his attorney fees. See Tyler v. City of Manhattan, 866 F.Supp. 500 (D.Kan.1994).