Roy Payan v. Laccd

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2021
• Docket: 19-56111
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROY PAYAN; PORTIA MASON; Nos. 19-56111 NATIONAL FEDERATION OF THE 19-56146 BLIND; NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, D.C. No. 2:17-cv-01697-SVW-SK Plaintiffs-Appellees/Cross-Appellants,

v. MEMORANDUM*

LOS ANGELES COMMUNITY COLLEGE DISTRICT,

Defendant-Appellant/Cross-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted February 12, 2021 Submission Vacated February 16, 2021 Resubmitted August 17, 2021 Pasadena, California

Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges. Partial Concurrence and Partial Dissent by Judge LEE

Defendant-Appellant Los Angeles Community College District (“LACCD”)

appeals the final judgment and permanent injunction entered against it following

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. bench and jury trial verdicts finding it had systemically discriminated against blind

students at its Los Angeles City College (“LACC”) campus in violation of Section

504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the

Americans with Disabilities Act (“ADA”). Plaintiffs-Appellees, Roy Payan, Portia

Mason, the National Federation of the Blind, Inc. (“NFB”), and the National

Federation of the Blind of California, Inc. (“NFB-CA”) (together, “Plaintiffs”)

conditionally cross-appeal the district court’s denial of a jury trial on certain issues

of liability. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in

part; reverse in part; vacate the judgment and injunctive orders; and remand for

further proceedings. 1

1. As a threshold matter, LACCD seeks judicial notice of approximately

800 pages of evidence which was not presented to the district court. We decline to

notice these exhibits under Fed. R. Evid. 201 because they are “not factored into

the record on appeal.” Ctr. for Bio-Ethical Reform, Inc. v. City & County of

Honolulu, 455 F.3d 910, 913 n.3 (9th Cir. 2006). Moreover, LACCD’s motion

requests notice of the contents of these exhibits to decide contested issues of fact,

which is not an appropriate invocation of the rule. See Von Saher v. Norton Simon

Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010).

1 We explain separately, in a contemporaneously filed published opinion, the district court’s error in construing the applicable disability discrimination laws.

2 2. LACCD contends that neither NFB nor NFB-CA had organizational

standing to sue in this matter. We review questions of standing de novo and

underlying factual findings for clear error. Preminger v. Peake, 552 F.3d 757, 762

n.3 (9th Cir. 2008) (citations omitted).

The district court found that NFB and NFB-CA both had organizational

standing to sue. To prove organizational standing, a party bears “the burden of

demonstrating that (1) [it has] suffered an injury-in-fact, meaning that the injury is

‘concrete and particularized’ and ‘actual and imminent,’ (2) the alleged injury is

‘fairly traceable’ to the defendants’ conduct, and (3) it is ‘more than speculative’

that the injury is judicially redressable.” E. Bay Sanctuary Covenant v. Biden, 993

F.3d 640, 662–63 (9th Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)). The district court clearly erred by finding that NFB had diverted

its resources to combatting accessibility barriers at LACCD without tying NFB’s

expenditure of resources to any specific conditions at LACC. See El Rescate Legal

Servs., Inc. v. Exec. Office of Immigr. Rev., 959 F.2d 742, 748 (9th Cir. 1991).

However, the district court appropriately determined that NFB-CA’s advocacy

surrounding specific accessibility barriers at LACC was a diversion of resources

sufficient to support organizational standing. Id.

Alternatively, the district court found both NFB and NFB-CA had

associational standing to sue. “[A]n association has standing to bring suit on

3 behalf of its members when: (a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Hunt v. Wash.

State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). LACCD challenges only

this third element, which is generally satisfied when the associational plaintiff

seeks prospective relief for the benefit of its members. Warth v. Seldin, 422 U.S.

490, 515 (1975). Because both NFB and NFB-CA sought injunctive relief for their

members, the district court correctly determined that both entities satisfied the third

prong of the Hunt test. Id. Accordingly, both NFB and NFB-CA have standing to

sue in this case.

3. LACCD challenges the district court’s grant of partial summary

judgment on two specific grounds: that the court improperly weighed disputed

issues of fact and that it applied an incorrect burden-shifting framework to

Plaintiffs’ disparate impact claims. We review this challenge de novo. White v.

City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007) (citation omitted). LACCD’s

specific arguments are not supported by the record and do not establish error in the

district court’s partial grant of summary judgment. However, as explained

separately in our published opinion, the district court erred in its analysis of the

relevant disability law on summary judgment and is instructed to reconsider the

4 matter on remand as informed by the analysis in our published opinion.

4. LACCD contends the district court erred by failing to rule on its

Daubert motions and by finding LACCD’s expert submitted a sham affidavit. We

review for abuse of discretion the district court’s consideration of expert testimony

and its sham affidavit finding. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

152 (1999); Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2012).

LACCD filed Daubert objections to Plaintiffs’ two experts, Peter Bossley

and John Gunderson, which the district court never explicitly ruled on. This failure

to engage in the Daubert gatekeeping inquiry was an abuse of discretion. United

States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (citation

omitted); see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

Plaintiffs bear the burden of proving the harmlessness of this error. Ruvalcaba-

Garcia, 923 F.3d at 1190. Because the district court’s bench trial findings and

injunctive order rely heavily on Bossley’s opinions, and because Plaintiffs did not

specifically argue the harmlessness of the failure to evaluate Gunderson’s opinion,

we cannot conclude that the error here was harmless. We thus have “discretion to

impose a remedy ‘as may be just under the circumstances.’” United States v.

Bacon, 979 F.3d 766, 770 (9th Cir. 2020) (en banc) (citation omitted). Because

other errors in this case warrant remand for further proceedings, we instruct the

district court to also complete the appropriate Daubert inquiry on remand. See id.

5 at 768 (citing Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th Cir.

2014) (en banc)).

The district court did not abuse its discretion in determining that LACCD’s

expert submitted a sham affidavit. The district court made factual findings that the

contradiction in LACCD’s expert’s affidavit was a sham because the inconsistency

between her deposition testimony and her affidavit was clear and unambiguous and

not otherwise attributable to a misunderstanding or changed circumstances. This

satisfied the district court’s obligation to complete the requisite inquiry before

invoking the sham affidavit rule. Yeager, 693 F.3d at 1080 (citation omitted).

5. LACCD contends the district court erred by permitting Plaintiffs to

pursue money damages for their deliberate indifference claims. We review this

argument de novo. Molski v. Foley Ests. Vineyard & Winery, LLC, 531 F.3d 1043,

1046 (9th Cir. 2008). “To recover monetary damages under Title II of the ADA or

the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part

of the defendant,” which is measured by a “deliberate indifference” standard.

Duvall v. County of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001), as amended

on denial of reh’g (Oct. 11, 2001) (footnote and citation omitted). LACCD argues

that the “deliberate indifference” standard is inconsistent with the “thoughtless

indifference” that disparate impact claims are meant to remedy. But this argument

has no basis in our precedent which has long recognized that money damages are

6 recoverable for intentional violations of both the ADA and Section 504. See

Alexander v. Choate, 469 U.S. 287, 295 (1985); Duvall, 260 F.3d at 1138.

6. LACCD contends the district court’s bench trial findings were clearly

erroneous. We review the district court’s factual findings for clear error and its

legal conclusions de novo. Lee v. W. Coast Life Ins. Co., 688 F.3d 1004, 1009 (9th

Cir. 2012) (citations omitted). Because the district court erred in construing the

appropriate legal scope of Plaintiffs’ disability discrimination claims, thus

requiring remand for a new trial, we decline to address many of LACCD’s specific

assignments of error. We note, however, that the district court erred in holding

LACCD liable for accessibility barriers in the LACC library research databases

based on “self-evident principles,” despite making an explicit finding that Plaintiffs

failed to carry their burden of proof to show that reasonable modifications existed

to remedy these accessibility barriers.

7. LACCD contends the district court’s permanent injunction was overly

broad. We agree. We review the permanent injunction for abuse of discretion.

Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 965 (9th Cir. 2017) (citation

omitted). The injunction’s provisions regarding the library databases, for example,

constituted an abuse of discretion because Plaintiffs failed to meet their burden of

proof regarding the existence of reasonable modifications to those databases.

Because we remand this case for reconsideration of Plaintiffs’ disability

7 discrimination claims, we similarly vacate the entire injunction and remand for

reconsideration of Plaintiffs’ requested injunctive relief in light of the findings on

retrial.

8. Plaintiffs contend on cross-appeal that the district court erred by

denying plaintiffs a jury trial on issues of liability. We agree. We review this

issue de novo. Smith v. Barton, 914 F.2d 1330, 1336 (9th Cir. 1990) (citation

omitted). The district court denied Plaintiffs’ request for a jury trial on all but the

“deliberate indifference” and damages components of their claims. This was error.

Because the individual plaintiffs sought money damages on their disability

discrimination claims, they were entitled to a jury trial on these claims under the

Seventh Amendment. Id. at 1337–38. On remand, the district court is instructed to

permit Plaintiffs to try their disability discrimination claims to a jury.

AFFIRMED in part; REVERSED in part; VACATED in part; and

REMANDED for retrial. LACCD’s Motion for Judicial Notice (ECF No. 28)

is DENIED. Each party is to bear its own costs.

8 FILED Payan v. Los Angeles Community College District, No. 19-56111 AUG 24 2021 MOLLY C. DWYER, CLERK LEE, Circuit Judge, concurring-in-part and dissenting-in-part: U.S. COURT OF APPEALS

I agree with the majority except that I do not believe that disparate impact is

available under Section 504 of the Rehabilitation Act or Title II of the ADA.