requested file. The court granted attorney's fees since it found that the
relief granted was a direct result of judicial intervention, which the
plaintiff's lawsuit had prompted. Consequently, the court held that
because the plaintiff in Nong had demonstrated chronology and judicial
intervention brought on by the litigation, the plaintiff was a prevailing
party for purposes of the EAJA. Once again, no such intervention occurred
in this case.
This Circuit has recognized that chronology, combined with the lack of
alternative explanations for the change in the defendants' conduct, can
be strong evidence of causation. See Public Citizen, 909 F.2d at 551. In
this case, another point in the defendants' favor is that they offer a
reasonable alternative explanation for their conduct. In short, WMATA and
the FTA had already engaged in numerous rounds of detailed negotiations
over how WMATA would come into compliance with the ADA prior to the
plaintiffs' lawsuit. WMATA's choice, it seems, was between installing the
IRIIS system or the "default" system, which consisted of the truncated
domes described in the ADAAG. The plaintiffs' position might have shown
more than mere chronology if it had convinced WMATA to install the
truncated domes in the face of numerous options. In this case, though,
once IRIIS proved to be unworkable, WMATA, facing enforcement
proceedings, chose to follow the default position of installing truncated
Accordingly, the court holds that the plaintiffs have failed to carry
their burden of showing that their litigation was the "but for" cause of
WMATA's decision to install truncated domes. See Public Citizen, 909 F.2d
at 550. Other courts have also denied the complainant prevailing party
status under the catalyst test when the defendant had already taken
substantial steps towards remedial action. See, e.g., Craig v. Gregg
County, 988 F.2d 18 (5th Cir. 1993); Sumbry v. Russell County,
993 F. Supp. 1439 (M.D.Ala. 1998); Jackson v. Stevenson 666 F. Supp. 99
In this case, WMATA and the FTA had already been discussing ways to
achieve ADA-mandated compliance since late 1992, four years before the
plaintiffs filed their suit. The record does not indicate that the FTA
ever contemplated granting WMATA an equivalent facilitation, regulatory
exemption, or any other reprieve that would excuse WMATA's compliance
with the ADA based solely on the existing platform edge. Rather, the FTA
consistently required that WMATA install additional supplemental measures
that would aid visually impaired riders if WMATA wanted to receive a
grant of equivalent facilitation.
Moreover, when WMATA proposed installing the IRIIS system, the FTA set
a final deadline of May 31, 1997, for system-wide installation of IRIIS.
When it became clear that IRIIS would not be functional by the final
deadline, FTA informed WMATA that regulatory enforcement efforts would be
undertaken absent timely efforts to comply with the ADA through alternate
means. Faced with imminent enforcement action after the failure of
IRIIS, WMATA had no other alternative than to install truncated domes.
In sum, this case resembles Sumbry, where the court found that the
plaintiff's lawsuit was "merely a parallel effort" to a plan that had
already been set in motion to remedy a civil-rights violation. See
Sumbry, 993 F. Supp. at 1446. Likewise, in this case, the court finds
that the FTA's actions and the failure of alternative methods brought
about WMATA's decision to install truncated domes, not the plaintiffs'
One other point bears mention. In their motion, the plaintiffs cite
Chen v. Slattery, 842 F. Supp. 597, 598-99 (D.D.C. 1994) for the
proposition that if the defendants do not present any evidence to support
alternative explanations for a government action and chronology favors
the plaintiff, then prevailing party status
should attach.*fn2 The plaintiffs, however, misstate the law. A
plaintiff bears the burden of proof to put forth evidence that supports
its position in addition to demonstrating a persuasive chronological
progression of events.
In the case at bar, the plaintiffs have not presented any supplemental
evidence. The fact that WMATA made its ultimate decision to install
truncated domes after the plaintiffs filed their lawsuit does not qualify
as additional evidence. Without more, the plaintiffs have failed to carry
their burden of demonstrating that their lawsuit caused WMATA to change
its course of conduct, i.e., to install truncated domes. In sum, the
plaintiffs fail the catalyst test.
In the intervening period between the filing of the complaint and this
opinion, several events have occurred that have caused the plaintiffs'
original causes of action to become moot. First and foremost, WMATA has
abandoned the IRIIS system and has installed the truncated dome warnings
envisioned by the ADAAG, except for the fact that the domes are not flush
with the platform edge, but are set back 18 inches. The FTA found that
the set-back domes provided visually impaired people with substantially
the same usability as truncated domes that are flush with the edge, and
granted WMATA an equivalent facilitation. As the D.C. Circuit has
stated, "[E]ven where litigation poses a live controversy when filed, the
[mootness] doctrine requires a federal court to refrain from deciding it
if `events have so transpired that the decision will neither presently
affect the parties' rights nor have a more-than-speculative chance of
affecting them in the future.'" Clarke v. United States, 915 F.2d 699,
701 (D.C.Cir. 1990) (en banc) (quoting Transwestern Pipeline Co. v.
FERC, 897 F.2d 570, 575 (D.C.Cir. 1990)).
In Count I, the plaintiffs seek six declaratory judgments that WMATA
violated the ADA and the APA by seeking equivalent facilitation of the
IRIIS system, by not installing truncated domes, and by delaying
compliance with the ADA. WMATA finished installing truncated domes in all
key and new rail stations on September 30, 1999. The D.C. Circuit has
held that, "The potential of declaratory relief alone cannot save an
action from mootness if the object of the suit is not `some ongoing
underlying policy, but . . . an isolated agency action.'" Columbian Rope
Co. v. West, 142 F.3d 1313, 1317 n. 3 (D.C.Cir. 1998) (quoting City of
Houston v. Department of Housing & Urban Dev., 24 F.3d 1421, 1429
In this case, WMATA has abandoned the IRIIS system, installed truncated
domes, and received an equivalent facilitation that brings it into
compliance with the ADA. The plaintiffs' objective in filing this suit
was to prevent WMATA from installing IRIIS, and to prevent the FTA from
allowing the IRIIS to replace the ADA's truncated-dome requirement. Now
that WMATA has taken these steps, the plaintiffs' requests for
declaratory relief in Count I are moot.
In Count I, the plaintiffs asked the court to enjoin WMATA from
delaying installation of truncated domes. Truncated domes are now present
in all required
WMATA stations. Thus, the plaintiffs' request to enjoin WMATA from
delaying installation is also moot. The final relief requested in Count I
was an order requiring WMATA to prepare and deliver a compliance plan to
the court within 30 days. Obviously, the time envisioned in the request
has lapsed, and a plan is no longer needed for compliance with the ADA.
Therefore, the plaintiffs' request for the court to order WMATA to
deliver a plan for compliance with the ADA is now moot.
In Count II, the plaintiffs seek a declaration that the Federal
Defendants acted arbitrarily, capriciously, and unlawfully during their
compliance negotiations with WMATA. The plaintiffs also requested that
this court enjoin the FTA from taking further arbitrary and capricious
action, prevent an FTA grant of equivalent facilitation to WMATA for any
detectable warning technology now in existence, and prevent the FTA from
granting further time extensions to WMATA for complying with the
truncated-dome requirement. The plaintiffs made each of these requests to
pressure FTA into ordering WMATA to install truncated domes. Since WMATA
had already installed the domes, each of these points is now moot.
In Count III, the plaintiffs asked the court to declare the IRIIS
installation contract to NFB to be null and void and to enjoin the
installation of IRIIS. Once again, WMATA's decision to forgo use of IRIIS
and install truncated domes moots these two requests. Accordingly, the
court dismisses the case as moot.
For all of these reasons, the court denies the plaintiffs' motion for
attorneys' fees and dismisses the case as moot. An order directing the
parties in a fashion consistent with this Memorandum Opinion is separately
and contemporaneously issued this 13 day of February, 2001.