I. Legal Standard for Vacating or Modifying Injunction
"An injunction is an ambulatory remedy that marches along according to the nature of a proceeding. It is executory and subject to adaptation as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change." Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir. 1984) (citing United States v. Swift & Co., 286 U.S. 106, 114, 76 L. Ed. 999, 52 S. Ct. 460 (1932)). A court may modify a permanent or final injunction, such as the injunction in the present case, when there has been a "significant change in the law or facts," Sierra Club, 732 F.2d at 256, so as to make modification equitable.
Plaintiffs contend that the experience in the pilot areas warrants extension of the current injunction to order Defendants to restore the street alarm box system in the pilot areas, so that the number and distribution of boxes is the same as it was before the City's plan, and to require that one-button boxes be replaced with two-button boxes or BARS boxes. The question is whether modifying the injunction in this manner is consistent with the purpose behind the original relief: ensuring that the City's emergency response system comports with the Plaintiffs' right to equal access under the ADA and the Rehabilitation Act. See 732 F.2d at 257 (test of court's discretion to modify injunction is "whether the requested modification effectuates or thwarts the purpose behind the injunction").
II. Standards Under the ADA & Implementing Regulations
Title II of the ADA prohibits discrimination against the disabled in public services. In particular, section 202 of the ADA, 42 U.S.C. § 12132, 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." Thus, to establish a violation of Title II, a plaintiff must prove that (1) she is a "qualified individual with a disability"; (2) she is being excluded from participation in or being denied the benefits of some service, program, or activity by reason of her disability; and (3) the entity which provides the service, program or activity is a public entity. See Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995).
There is no dispute that Younger and the class are "qualified individuals" pursuant to 42 U.S.C. § 12131(2). The parties agree that the City is a public entity. At issue, then, is whether the one-button alarm boxes and the reduced number of boxes in the pilot areas exclude Plaintiffs from participation in a service, program, or activity by reason of their deafness.
Pursuant to 42 U.S.C. § 12134(a), the Attorney General is empowered to promulgate regulations implementing Title II of the ADA. These regulations, codified at 28 C.F.R. ch. 1, pt. 35, are to be given controlling weight, "unless they are arbitrary, capricious, or clearly contrary to the statute." Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir. 1996); Civic Ass'n, 915 F. Supp. at 635 (quoting United States v. Morton, 467 U.S. 822, 834, 81 L. Ed. 2d 680, 104 S. Ct. 2769 (1984)).
The regulations provide that: "Each facility or part of a facility altered by . . . a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.151(b). The term "facility" is defined to include, inter alia, "all or any portion of . . . equipment." 28 C.F.R. § 35.104.
The regulations governing the "alteration" of public facilities contrast with the regulations governing existing facilities. Although all public programs and services are to be operated so that existing facilities are "readily accessible to and usable by individuals with disabilities," public entities are not necessarily required to make each of their existing facilities accessible or to make changes that would result in "undue financial and administrative burdens." 28 CFR 35.150(a). The distinction between the treatment of existing facilities and alterations reflects Congress' recognition that mandating changes to existing facilities could impose extraordinary costs. "New construction and alterations, however, present an immediate opportunity to provide full accessibility." Kinney v. Yerusalim, 9 F.3d 1067, 1074 (4th Cir. 1993), cert. denied, 511 U.S. 1033, 114 S. Ct. 1545, 128 L. Ed. 2d 196 (1994). "Thus, while Congress chose not to mandate full accessibility to existing facilities, it required that subsequent changes to a facility be undertaken in a non-discriminatory manner." Id. at 1073. The more stringent requirements for alterations reflect a belief that it is "discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded." Id.
In Molloy v. Metropolitan Transp. Auth., 94 F.3d 808 (2d Cir. 1996), the Second Circuit considered a claim that the Metropolitan Transportation Authority's plan to reduce the number of ticket clerks at some stations and to install ticket vending machines violated Section 242 of Title II of the ADA, which provided that:
It shall be considered discrimination ... with respect to alterations of an existing station or part thereof in the intercity or commuter rail transportation systems that affect or could affect the usability of the station or part thereof, ... to fail to make the alterations in such a manner that, to the maximum extent feasible, the altered portions of the station are readily accessible to and usable by individuals with disabilities ... .