Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency & Office of Emergency Preparedness

649 F.2d 71
CourtCourt of Appeals for the First Circuit
DecidedMay 26, 1981
DocketNo. 80-1520
StatusPublished
Cited by28 cases

This text of 649 F.2d 71 (Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency & Office of Emergency Preparedness) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency & Office of Emergency Preparedness, 649 F.2d 71 (1st Cir. 1981).

Opinion

MARKEY, Chief Judge.

This is an appeal from the denial of a preliminary injunction against the state agencies and officials responsible for evacuation planning in the event of a meltdown at the Pilgrim I Nuclear Power Facility in Plymouth, Massachusetts. Plaintiffs brought this class action on behalf of persons residing in the area immediately surrounding the facility who are handicapped, those who do not speak English, and those without access to an automobile.

Plaintiffs sought and were denied a preliminary order requiring the State Defendants to modify their plan, to test the modified plan, and to report the steps taken to the court within 10 days. We affirm the denial of a preliminary injunction.

Proceedings

In its original complaint, the Massachusetts Coalition of Citizens with Disabilities and others (“Coalition”) sought a restraining order compelling the Civil Defense Agency and Office of Emergency Preparedness of the Commonwealth of Massachusetts, its Director, and other state defendants (“Agency”), to curtail the operation of the Plymouth I plant pending implementation and testing of an evacuation plan for evacuating all persons within ten miles of the plant, and to inform all persons within thirty miles of the plant of the dangers of nuclear accidents and the plan’s warning- and-evacuation procedures.

At the hearing on its motion for preliminary relief, the Coalition submitted a “Proposed Order”, which in relevant part read:

That the Public Defendants are ordered to provide for and test a warning system adequate to warn all persons within ten (10) miles of the Pilgrim I Plant within fifteen (15) minutes of notification from Boston Edison that an accident has occurred, including but not limited to all such persons with communication disabilities, and report to the Court what steps they have taken to comply with this Order within ten (10) days.
That the Public Defendants are ordered to provide for and test an evacuation plan that:
(a) provides sufficient transportation to assist all mobility handicapped persons and persons without private transportation to evacuate an area within a radius of ten miles of the Pilgrim I Plant in no more than four hours time;
(b) permits and takes account of voluntary evacuation by persons outside an area with [sic] a radius of ten miles from the Pilgrim I Plant, including but not limited to those persons on Cape Cod;
(c) that takes into account all meteorological, geographic, traffic, and related factors that might impact on the execution of said plan and describes in detail how each factor shall be handled by personnel in charge of an evacuation;
and report to the Court what steps they have taken to comply with this Order within ten days.
That the Defendants are ordered to provide all members of the public residing within thirty miles of the Pilgrim I Plant [73]*73with the maximum possible amount of informational materials describing the improved warning and evacuation plan and how thereunder they should act and/or may obtain assistance; and describing the dangers of a nuclear accident, possible effects thereof, and the need to act in accordance with the requirements of the aforementioned plan.

In the light of affidavits, written memoranda and oral argument from all parties, the trial judge issued a decision, accompanied by an opinion, denying all injunctive relief. The Coalition moved for reconsideration of its proposed order. After a second hearing, the trial judge adhered to his decision, noting that plaintiffs had shown neither a reasonable prospect of immediate irreparable injury nor a reasonable prospect of success on the merits.

THE PLAN

The plan in existence when suit was filed included a general section listing overall evacuation measures for the area within a ten mile radius of the Pilgrim I plant, and twelve specific subsections, each constituting a local evacuation plan for a town within the ten mile radius. Respecting a nuclear accident, the plan provides for: (1) notice, warning, and instruction to officials and the public; (2) evacuation routes; (3) evacuation stations and sheltering facilities; (4) provision and protection of food; and, (5) public education about the plan. Respecting evacuation, the plan designates particular evacuation routes and assigns traffic control responsibility and locations to specific local units with available police assistance.

The plan requires that it be reviewed and updated every year. It also requires that the Agency educate the public about, and test, each local plan.1

Coalition’s Arguments

The Coalition, relying on the Agency’s receipt of federal funds, invokes this provision, section 504 of the Rehabilitation Act of 1973 (Act):

No otherwise qualified handicapped individual ... shall... be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance....

Viewing the Act as requiring that every recipient of federal funds must guarantee the handicapped participation in and the benefits of the recipient’s program, the Coalition says the Agency violated the act by failing to provide special evacuation procedures for the handicapped.2

The Coalition further urges that failure to specially and specifically provide for notification and evacuation of class members in the manner set forth in its proposed order is a denial of the constitutional guarantees of equal protection and due process and a denial of the class members’ fundamental rights to life, liberty and property.

ISSUE

Whether the trial court abused its discretion in denying the preliminary relief sought by the Coalition.3

[74]*74OPINION

In an interlocutory appeal from a denial of preliminary injunctive relief, the scope of review is narrow. Application for a preliminary injunction is addressed to the discretion of the trial court, not to that of the appellate court. A-Copy, Inc. v. Michaelson, 599 F.2d 450, 452 (1st Cir. 1978). Hence the Coalition must meet the heavy burden of establishing that the denial here was an abuse of the trial court’s discretion or was based on a clear error of law. Fifteen Thousand Eight Hundred and Forty-Four Welfare Recipients v. King, 610 F.2d 32, 34 (1st Cir. 1979); Automatic Radio Mfg. Co. v. Ford Motor Company, 390 F.2d 113, 115 (1st Cir. 1968), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968).

The denial must be affirmed if the trial court examined the appropriate factors and properly concluded that the existence of one of the factors required to support the issuance of a preliminary injunction had not been demonstrated by the Coalition. Factors traditionally examined include: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) whether the public interest would be better served by issuing then by denying the injunction; and (4) the comparable hardship inflicted upon the parties.4 See Grimard v. Carlston,

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Bluebook (online)
649 F.2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-coalition-of-citizens-with-disabilities-v-civil-defense-ca1-1981.