Where Do We Go Berkeley v. Caltrans

                               FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                     APR 27 2022
                                                                   MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

WHERE DO WE GO BERKELEY; KEVIN No. 21-16790
CODDINGTON; JOSE MORFIN;
JONATHAN JAMES; KINNDRA         D.C. No. 3:21-cv-04435-EMC
MARTIN; MARIAH JACKSON; SHAWNA
GARCIA; ALHONDRO MYERS; RONNIE
BROOKS; TERRY LEE WALKER; JASON OPINION
MILLER; SARAH TEAGUE,

                Plaintiffs-Appellees,

 v.

CALIFORNIA DEPARTMENT OF
TRANSPORTATION; TOKS
OMISHAKIN, individually and in his
official capacity as Director of Caltrans;
DINA EL-TAWANSY, individually and in
her official capacity as Director of District
Four,

                Defendants-Appellants.

                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                       Argued and Submitted April 15, 2022
                            San Francisco, California

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges, and Susan R. Bolton,*

      *
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
District Judge.

                            Opinion by Judge R. Nelson

R. NELSON, Circuit Judge:

      We are asked to decide what the Americans with Disabilities Act (“ADA”)

likely requires when the California Department of Transportation (“Caltrans”)

coordinates and liaises with other government services before clearing homeless

encampments. When Caltrans planned to clear high-risk encampments along the

freeway, Plaintiff campers sought an injunction. The district court required Caltrans

to give Plaintiffs six months to relocate and find housing before clearing the

encampments. We vacate the district court’s order because there is no serious

question that the ADA requires such a lengthy delay. We also hold that the district

court abused its discretion when evaluating the injunction’s harm to Caltrans and

public safety, and thus erred in balancing the equities.

                                           I

                                          A

      California law provides Caltrans with “full possession and control” of state

highways and property acquired for state highway purposes. 

. On one of these properties, situated along an exit ramp for Interstate 80, lies a

cluster of homeless encampments. Over the last several years, Caltrans has worked

to clear these encampments while coordinating with local partners to facilitate the


                                          2
relocation of people who live there. This case is about Caltrans’s efforts to clear two

high-risk encampments and the district court’s injunction preventing it from doing

so.

      Caltrans, under its authority to “do any act necessary, convenient or proper

for the . . . maintenance or use of all highways,” 

 § 92, clears its properties of

homeless encampments according to its assessment of the risks posed by each

encampment. When the COVID-19 pandemic presented new health concerns for

homeless populations, Caltrans published interim guidance to govern its triage and

clearance process. The Interim Guidance instructs Caltrans to “attempt to request

assistance from local partners on homelessness but . . . not allow the response by

outreach teams to interfere with addressing critical safety concerns.”

      Each encampment is assigned a priority level based on its threat to public

safety. The priority level determines whether and when the encampment will be

cleared. Level 1 camps pose a “critical safety concern” and “[r]equire[] urgent

relocation in coordination with the [California Highway Patrol], and with local

partners on homelessness if possible.” Examples of level 1 encampments include

sites “within the clear recovery zone, which is the area where a car may swerve off

of the road and still recover back to the roadway,” sites that “[c]onnect[] to a power

source or other State utility,” and sites that “physically block[] traffic, bike or

pedestrian pathways and [are] an imminent danger to the unsheltered or the public.”


                                          3
As a general rule, Caltrans provides 72 hours’ notice to vacate level 1 encampments.

Notice is not required for “encampments that pose an immediate health or safety

hazard.”

      Level 2 camps are “[h]igh [p]riority” and also pose “a safety concern,” though

to a lesser degree. For those sites, Caltrans balances outreach and public safety needs

by “work[ing] with local governments/homeless services partners to perform

outreach, allowing partners approximately two weeks.” Caltrans then provides 72

hours’ notice to vacate.

      The encampments at issue are designated level 1. Caltrans began its efforts

to clear them in July 2020. Together with the City of Emeryville and a homeless

outreach organization, Caltrans imposed a ramp-up period of at least six weeks to

contact people living in the encampments and, along with Plaintiff Where Do We

Go Berkeley (“WDWG”), communicate the need to relocate.

      Efforts to clear the encampments were reinvigorated in February 2021, when

Caltrans was advised that construction of a housing project was scheduled to begin

in March and a portion of Caltrans property had been leased to the construction site

owner. According to Caltrans, the construction project was delayed until May to

allow time to relocate the campers. In April 2021, Caltrans communicated with its

partners about “the general background information of the campers, the removal




                                          4
status and the relocation efforts” and advised that it would post removal notices on

June 8, 2021.

                                          B

      One day after Caltrans posted the notices, Plaintiffs sued, arguing that clearing

the encampments violated the ADA.1 They asked the district court for a temporary

restraining order (“TRO”) to stop Caltrans from clearing the encampments until all

residents were given housing. The district court granted a ten-day TRO, which it

then extended for another month and a half. See Where Do We Go Berkeley v. Cal.

Dep’t of Transp., No. 21-CV-04435-EMC, 

, at *1 & n.1 (N.D.

Cal. Sept. 27, 2021).

      WDWG then amended the complaint, seeking the same relief but removing

the individual plaintiffs (who had found new places to live) from the suit. The

district court declined to grant a preliminary injunction, holding that WDWG could

not establish organizational standing. It continued its TRO to allow WDWG to add

eleven new individual plaintiffs.

      The new individual plaintiffs were offered a place to stay at a warehouse-type

group shelter called Horizon. But Plaintiffs argued that the shelter was inaccessible




1
  Plaintiffs also raised claims under the Fourth Amendment and federal and state
Due Process Clauses. Because the district court granted its injunction based on only
the ADA claim, the other claims are not at issue.

                                          5
to them because of their disabilities and again requested an injunction to prevent

Caltrans from clearing the encampments.

      The district court granted in part Plaintiffs’ request for a preliminary

injunction. 

. Its order permitted Caltrans to clear the leased portion of its

property but enjoined Caltrans from clearing the rest of the property for six months.

 In doing so, the district court held that Plaintiffs had raised serious questions on

the merits of their ADA claim. 

. The district court also held that Plaintiffs

had shown a likelihood of irreparable harm, noting that most of the individual

plaintiffs had mental disabilities which made the Horizon shelter inaccessible and

that clearing the encampments would leave them with nowhere to go. 

 at *2–3,

*5. Thus, it found that the harm to Plaintiffs outweighed Caltrans’s temporary harm

in being unable to clear the encampments. 

 at *4–5. The district court also

recognized that the encampments created a serious threat to public safety. 

.

But it concluded that Caltrans could mitigate this harm by reopening Seabreeze, a

previously cleared property, for the campers’ use. 

      The district court’s preliminary injunction emphasized that the grounds for the

injunction would wane over time. 

. In particular, it noted that Caltrans

would meet its obligation to accommodate Plaintiffs as time was provided. 

 The

injunction was set to expire on March 23, 2022. 

                                           6
      Caltrans appealed the district court’s injunction. Because the injunction was

set to expire before argument, we requested supplemental briefing on mootness.

Caltrans argued that the issue would not become moot because Plaintiffs had moved

for a four-month extension of the injunction and therefore the dispute fell within the

exception for issues capable of repetition, yet evading review. Plaintiffs argued that

the appeal would be moot because any new injunction would have different terms

including “a smaller set of Plaintiffs and, potentially, a different location.” The

district court extended the original injunction until April 30, 2022.

                                          II

      “A preliminary injunction should only be set aside if the district court abused

its discretion or based its decision on an erroneous legal standard or on clearly

erroneous findings of fact.” FTC v. Consumer Def., LLC, 

, 1211–12

(9th Cir. 2019) (quoting Puente Ariz. v. Arpaio, 

 (9th Cir.

2016)). “We review the district court’s legal conclusions de novo, the factual

findings underlying its decision for clear error, and the injunction’s scope for abuse

of discretion.” 

 at 1212 (quoting K.W. ex rel. D.W. v. Armstrong, 

 (9th Cir. 2015)). A factual finding constitutes clear error if it is “illogical,

implausible, or without support in inferences that may be drawn from the facts in the

record.” M.R. v. Dreyfus, 

 (9th Cir. 2012) (quoting United States

v. Hinkson, 

 (9th Cir. 2009) (en banc)).


                                          7
                                          III

      We first determine whether we have jurisdiction to review the expired original

injunction. When an appealed injunction expires by its own terms, the appeal

generally becomes moot. See, e.g., Shell Offshore Inc. v. Greenpeace, Inc., 

 (9th Cir. 2016). This rule is subject to an exception for disputes “capable

of repetition, yet evading review.” See Shell Offshore, Inc. v. Greenpeace, Inc.

(“Greenpeace II”), 

 (9th Cir. 2013) (quoting NAACP, W. Region

v. City of Richmond, 

, 1353 (9th Cir. 1984)). “In order for the

exception to apply, (1) the duration of the challenged action or injury must be too

short to be fully litigated; and (2) there must be a reasonable likelihood that the same

party will be subject to the action again.” Id. (quotation marks omitted) (quoting

NAACP, W. Region, 743 F.2d at 1353).

      Although the appealed order expired before argument, we hold that the

dispute is not moot because it is capable of repetition, yet evading review. See id.

The six-month preliminary injunction is too brief for an appeal to be fully litigated,

and there is a reasonable likelihood that Caltrans will be subject to similar

injunctions in the future.

      “An action is ‘fully litigated’ if it is reviewed by this Court and the Supreme

Court.” Id. We have already held that “a transaction set for a term of 17 months . . .

would be likely to expire before our review (let alone the Supreme Court’s) could


                                           8
be completed,” and is thus “likely to evade review.” Alcoa, Inc. v. Bonneville Power

Admin., 

 (9th Cir. 2012) (quotation marks omitted). These

constraints apply “even where (as here) the parties d[id] not seek expedited review

or a stay pending appeal.” 

      In 2012, we relied on statistics showing that in 2010 and 2011 “the average

time in this court from the filing of a notice of appeal through to final disposition of

a case was 16.4 and 17.4 months, respectively.” 

 at 787 n.9 (citing Ninth Circuit:

2011 Annual Report 59, available at https://cdn.ca9.uscourts.gov/datastore/judicial-

council/publications/AnnualReport2011.pdf).        Since then, those averages have

dropped—in the most recent two years with available data, 2019 and 2020, the

average times were 10.8 months and 12.5 months. Ninth Circuit: 2020 Annual

Report     62,    available      at   https://cdn.ca9.uscourts.gov/datastore/judicial-

council/publications/AnnualReport2020.pdf. But even with these improvements, it

is unlikely that a six-month injunction will be fully litigated. The injunction’s

duration is simply too short for an appeal to run its course.

      As for the second prong, there is more than a reasonable likelihood that the

dispute will recur. Indeed, it has already happened. In this very case, Plaintiffs

requested (and partially received) an extension of the original injunction. 2 And the


2
  We sua sponte take judicial notice of the district court’s order extending the
injunction. See United States ex rel. Robinson Rancheria Citizens Council v.


                                           9
initial TRO was extended for six weeks before the injunction issued. Although the

district court’s latest order states that its injunction “will terminate on April 30,

2022,” nothing prevents Plaintiffs from seeking a new injunction with the same

practical effect.

       Other reasons suggest that this dispute is likely to recur. WDWG works with

homeless individuals along the I-80 corridor in the East Bay. It is reasonably likely

that new people could move to the encampments at issue and join the suit. As has

already happened in this case, new campers could request another injunction. Or

they could file suits of their own. In fact, a recent case in the Northern District of

California involves similar theories and requests for relief.        See Blumberg v.

Chambers, No. 3:22-cv-01834-MMC (N.D. Cal. 2022) (filed Mar. 23, 2022).

Finally, WDWG could challenge clearings of other nearby encampments. Any of

these scenarios would satisfy the second prong of the “capable of repetition, yet

evading review” test. See A.D. ex rel. L.D. v. Haw. Dep’t of Educ., 

 (9th Cir. 2013).

       Plaintiffs argue that the dispute is unlikely to recur under our analysis in

Ahlman v. Barnes because “a reasonable expectation requires more than a mere



Borneo, Inc., 

 (9th Cir. 1992) (citation omitted) (noting that we
“may take notice of proceedings in other courts . . . if those proceedings have a direct
relation to matters at issue” (quoting St. Louis Baptist Temple, Inc. v. FDIC, 

 (10th Cir. 1979))).

                                          10
possibility that something might happen,” and there is no more than a “mere

possibility” here. See 

 (9th Cir. 2021) (citation and quotation marks

omitted). But in Ahlman, the likelihood of a new injunction being granted was

“remote.” 

. The Supreme Court had already stayed the injunction. Barnes

v. Ahlman, 

 (2020); Ahlman, 20 F.4th at 492–93. Here, on the other

hand, the injunction was never vacated or stayed and Plaintiffs have already asked

for and received an extension of the original injunction, which remains in place.

      Second, Plaintiffs argue that any new injunction would be based on different

facts and thus not the “same action.” See United States v. Sanchez-Gomez, 

 (2018) (quoting Turner v. Rogers, 

, 439–40 (2011)).

But when looking at reasonable likelihood of recurrence, we have never insisted that

the facts be identical. In Greenpeace II, for example, it was enough that the same

party seemed likely to challenge the same action again. 

. We did

not delve further into the facts to ensure that the conditions of the challenge would

be exactly the same. And in A.D., we found the exception satisfied even when future

challenges would come from different plaintiffs who would sue on similar grounds.

. Based on these cases, another preliminary injunction—either in

this case or in a similar case—would be similar enough to count as a recurrence.

      Finally, Plaintiffs argue that even if the case is not moot, we should stay the

appeal to allow the parties to brief the extension order instead. But delaying this


                                         11
appeal to adjudicate a new order would essentially facilitate the dispute’s ability to

recur and evade review. With a new round of briefing, the appeal would stretch

beyond the expiration of the extended injunction.

                                           IV

      Having confirmed that the dispute is not moot, we turn to the substance of

Caltrans’s appeal.

      The Supreme Court has explained that plaintiffs seeking a preliminary

injunction must establish that (1) they are likely to succeed on the merits, (2) they

are likely to suffer irreparable harm absent preliminary relief, (3) the balance of

equities tips in their favor, and (4) an injunction is in the public interest. Winter v.

Nat. Res. Def. Council, Inc., 

 (2008). We employ a “sliding scale

test,” which allows a strong showing on the balance of hardships to compensate for

a lesser showing of likelihood of success. All. for the Wild Rockies v. Cottrell, 

, 1134–35 (9th Cir. 2011). Thus, when plaintiffs establish that the balance

of hardships tips sharply in their favor, there is a likelihood of irreparable injury, and

the injunction is in the public interest, they need only show “serious questions” on

the merits. 

.3



3
  Plaintiffs probably had to show a likelihood of success on the merits given the
district court’s abuse of discretion in balancing the equities. See infra Part IV.C.
Because Plaintiffs fail to show even a serious question on the merits, we do not reach
that issue.

                                           12
      We hold that the district court erred in finding serious questions going to the

merits of Plaintiffs’ ADA claim and in balancing the equities.

                                           A

      Title II of the ADA 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, or be subjected to

discrimination by any such entity.”        

.        Its implementing

regulations require state agencies to “make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid

discrimination on the basis of disability, unless the public entity can demonstrate

that making the modifications would fundamentally alter the nature of the service,

program, or activity.” 

(b)(7)(i).4 To state a prima facie case for

a violation of Title II, Plaintiffs must show that (1) they are “qualified individual[s]

with disabilit[ies]”; (2) they were “either excluded from participation in or denied

the benefits of a public entity’s services, programs, or activities, or w[ere] otherwise

discriminated against by the public entity”; and (3) “such exclusion, denial of

benefits, or discrimination was by reason of [their] disabilit[ies].” Payan, 

  Title II uses the term “reasonable modification” rather than the “reasonable
accommodation” term found in Title I, the part of the ADA that applies to employers.
The terms “create identical standards and may be used interchangeably.” Payan v.
L.A. Cmty. Coll. Dist., 

, 738 n.4 (9th Cir. 2021) (citation omitted).

                                          13
at 737 (quoting Duvall v. County of Kitsap, 

 (9th Cir. 2001), as

amended on denial of reh’g (Oct. 11, 2001)). The parties do not dispute that

Plaintiffs satisfy the first and third elements of a Title II claim. Their disagreement

is limited to whether Plaintiffs have established a serious question that they were

denied the benefits of Caltrans’s programs or otherwise discriminated against.

      The district court held that Plaintiffs had established serious questions on the

merits of their claim. It provided two bases for its holding. First, it concluded that

Plaintiffs sufficiently asserted that “Caltrans ha[d] implemented a ‘program’

regarding the removal of homeless encampments (e.g., as reflected in the Interim

Guidance)” and the ADA required the program to give “reasonable accommodation

to disabled persons because they . . . need more time before being evicted.” Where

Do We Go Berkeley, 

, at *5. In the alternative, the district court

held that Plaintiffs had stated a “plausible claim” that clearing the encampments

would violate the second clause of Title II of the ADA, which prohibits a public

entity from discriminating against disabled persons. See id.; 

.

      The district court’s analysis concluded by recognizing that the ADA does not

require modifications that would “fundamentally alter” the nature of Caltrans’s

programs. Where Do We Go Berkeley, 

, at *6. But it held that

there was a serious question about whether a six-month injunction would reach the

level of a “fundamental alteration of Caltrans’s property and function.” 

 It


                                          14
conceded that the longer the accommodation, the stronger Caltrans’s argument that

its property was being “fundamentally altered to that of providing housing.” 

      In reviewing the district court’s six-month injunction, we must first define the

Caltrans “programs” subject to the ADA. We then examine whether the district

court’s remedy is a “reasonable modification” of those programs or a more major

change that “fundamentally alters” their nature.

                                          1

      The district court never explicitly described the scope of Caltrans’s “program”

that serves as the basis for Plaintiffs’ ADA claim. It seemingly accepted Plaintiffs’

definition: a “program regarding the removal of homeless encampments (e.g., as

reflected in the Interim Guidance).” See 

. On its face, this tells us little

about what Caltrans’s programs do and do not entail—and therefore what could be

a “reasonable modification” of that program.

      Caltrans argues that clearing the encampments involves no ADA obligation

because its properties are not open to the public. But arguing that the properties are

not open to the public is a distinction without meaning: the ADA’s prohibition on

discrimination in public programs “bring[s] within its scope anything a public entity

does.” Barden v. City of Sacramento, 

 (9th Cir. 2002) (quotation

marks omitted) (quoting Lee v. City of Los Angeles, 

 (9th Cir.

2001)). It applies to a wide range of public functions, such as access to public


                                         15
sidewalks, medical licensing, and zoning. See LA All. for Hum. Rts. v. County of

Los Angeles, 

 (9th Cir. 2021); Hason v. Med. Bd. of Cal., 

, 1173 (9th Cir. 2002); Bay Area Addiction Rsch. & Treatment, Inc. v. City of

Antioch, 

 (9th Cir. 1999). We have also applied it to the way

entities enforce the law. For example, we have allowed claims for enforcing a local

nuisance code, McGary v. City of Portland, 

, 1268–70 (9th Cir. 2004),

and enforcement of a health and safety quarantine, Crowder v. Kitagawa, 

 (9th Cir. 1996). “The focus of the inquiry . . . is not so much on whether

a particular public function can technically be characterized as a service, program,

or activity, but whether it is a normal function of a governmental entity.” Barden,

 (quotation marks omitted) (quoting Bay Area Addiction, 

).

      While there is a program, it is not enough to say that Caltrans interacts with

homeless people on its properties. We must also define the scope of the program to

determine whether a six-month injunction is a reasonable modification that is

required by the ADA or a fundamental alteration that is not.

      In Zimmerman v. Oregon Department of Justice, 

 (9th

Cir. 1999), we considered the scope of “services, programs, and activities” offered

by a parks department. We reasoned that the term included things like operating a

swimming pool, leading nature walks, and maintaining playgrounds, but not things


                                         16
like buying lawnmowers and hiring people to operate them, which were just “means

to deliver the services, programs, and activities” and not services, programs, or

activities themselves. 

      Fairly analyzed, Caltrans’s programs are far more limited than Plaintiffs

contend or the district court held.    The Interim Guidance states that Caltrans

collaborates with local partners to help people at the encampments connect with

critical services and housing solutions. But Caltrans itself does not provide those

services; it “is not the appropriate entity to provide social services or relocation

assistance.”

      Caltrans’s programs also include clearing the encampments. Exactly how

Caltrans clears an encampment depends on the encampment’s priority level.

Caltrans “immediately resolve[s]” level 1 encampments, which “pose imminent

threats to safety or infrastructure.” Coordination with local partners is encouraged

“if possible.” Caltrans provides 72 hours’ notice to vacate, “with the exception to

encampments that pose an immediate health or safety hazard.” In short, time is of

the essence when it comes to level 1 encampments; addressing urgent safety risks is

the primary goal.

      Caltrans’s programs for level 1 encampments are abbreviated and expedited

when compared to Caltrans’s engagement with lower-priority encampments. For

example, the Interim Guidance for level 2 encampments allows local partners about


                                        17
two weeks to conduct outreach (with a shorter timeline for construction projects

requiring a ten-day period for relocation and cleanup). Levels 3 and 4 do not even

require relocation; instead, the Interim Guidance instructs Caltrans to work with

local partners responsible for implementing “relocation solutions” and to keep the

sites clear of trash and hazardous waste.

      In sum, Caltrans’s “programs” for level 1 encampments provide, when

possible, 72 hours’ notice before clearing and possible coordination with local

partners. More importantly, some services are not part of any program: Caltrans

does not provide campers with alternative housing, nor does it allow two weeks for

coordination with local partners (as for level 2 encampments) because the risks

posed by the encampment are too urgent to allow campers to stay.

                                            2

      Having defined Caltrans’s programs for level 1 encampments, we next ask

whether a six-month delay in clearing the encampments is a “fundamental

alteration” of those programs.

      The ADA requires “only ‘reasonable modifications’ that would not

fundamentally alter the nature of the service provided.” Tennessee v. Lane, 

 (2004) (citation omitted). “[I]n no event is the entity required to undertake

measures that would impose an undue financial or administrative burden . . . or

effect a fundamental alteration in the nature of the service.” 

 “[P]ublic entities


                                            18
are not required to create new programs that provide heretofore unprovided services

to assist disabled persons.” Townsend v. Quasim, 

 (9th Cir. 2003)

(citations omitted).

       The distinction between a reasonable modification and fundamental alteration

is “fact-specific, requiring case-by-case inquiry.” Crowder, 

. A

modification’s reasonableness depends on how it impacts the goals of an agency’s

program. For programs designed to address risks to the public, reasonableness

depends on the nature of the risk, whether the proposed modification would affect

the agency’s ability to address the risk, and the probability of worsening the risk if

the agency is forced to alter its programs. See 

 We also “take into account

financial and other logistical limitations on [the program].” Townsend, 

.

       Here, a six-month delay is a fundamental alteration of Caltrans’s programs,

which provide for expedient clearing of level 1 encampments and include, when

possible, 72 hours’ notice and coordination with local partners. Precluding Caltrans

from addressing a level 1 encampment’s urgent threat to public safety and

infrastructure—and suggesting that the risk is mitigated because Caltrans might

reopen Seabreeze for campers’ use—essentially requires Caltrans “to create new

programs that provide heretofore unprovided services.” See 

. The district

court effectively asked Caltrans to house Plaintiffs on its property until Plaintiffs


                                         19
found new housing, with no regard to the safety risks that make clearing level 1

encampments so critical. But Caltrans does not provide people with housing

solutions and cannot make clearing level 1 encampments dependent on when the

people living there can relocate.

                                          B

      Even if the scope of Caltrans’s programs precludes relief, the district court

also held that Plaintiffs had established a plausible claim that they were entitled to

relief under the second clause of Title II, which provides that a public entity cannot

subject a disabled person to discrimination. Where Do We Go Berkeley, 

, at *5. It noted our decision in Zimmerman, which held that Title II

prohibits discrimination in an entity’s “outputs” (i.e., the programs it extends to the

public) but not its “inputs” (e.g., employment). 170 F.3d at 1174–76. The district

court acknowledged that we have “not defined with precision the outer limits of the

clause” and concluded that the “subjected to discrimination” clause could apply even

if Caltrans provided no “service, program, or activity” under the ADA. Where Do

We Go Berkeley, 

, at *5.

      First, the district court wrongly used the lack of a precise outer limit for the

discrimination clause to hold that Plaintiffs had shown serious questions on the

merits. Instead, before exercising its authority to issue an injunction, the district

court must analyze the merits. The Supreme Court has explained that plaintiffs


                                          20
seeking a preliminary injunction must establish that they are likely to succeed on the

merits. Winter, 

. Our sliding scale test permits plaintiffs to satisfy

this requirement with a “serious question” on the merits when the balance of

hardships tips sharply in their favor. All. for the Wild Rockies, 632 F.3d at 1134–35.

But none of these legal standards allows the district court to enter an injunction on a

merely plausible claim. Nor can the district court forgo legal analysis just because

it has not identified precedent that places the question beyond debate.

      In any event, the district court’s alternative holding contradicts our precedent.

Title II’s second clause precludes intentional discrimination in an entity’s programs.

Zimmerman, 

. This is because the second clause still requires a

plaintiff to establish that he or she is a “qualified individual with a disability,” and a

plaintiff is not “qualified” to bring a Title II claim unless he or she “meets the

essential eligibility requirements” for a public service, program, or activity. See id.at

1175–77; 

. We have thus held that Title II’s clauses differ only

in their method of prohibiting discrimination: “Congress intended for the second

clause to prohibit intentional discrimination, whereas it intended for the first clause

to prohibit disparate treatment of the disabled.” Zimmerman, 

. The

district court erred by supporting its injunction on what it deemed a “plausible claim”

that Caltrans must delay clearing the encampments even if it provided no program




                                           21
under the ADA. No injunction can issue based on only a plausible claim—and

Plaintiffs’ claims were not plausible.5

                                          C

      We also hold that the district court erred by incorrectly mitigating the

hardships caused by the injunction. When evaluating the balance of equities, the

district court noted that Plaintiffs’ potential injury was “exacerbated by the public

health concerns of disbanding homeless encampments during the COVID-19

pandemic.” Where Do We Go Berkeley, 

, at *3. It then described

the hardships to Caltrans and the public if an injunction were granted. It recognized

that the encampments were “in need of urgent relocation” and that allowing them

“to remain in place permanently [was] clearly not viable.” 

. The district

court recognized that these encampments posed serious public safety risks, including

risks to drivers and the campers themselves, as well as electrical, fire, and

environmental hazards. 

 For example, some campers had broken into Caltrans

electrical boxes to get power, “which can trip breakers, overload circuits, and/or

otherwise cause electrical faults, which can in turn impact Smart Corridor display

signs.” 

 The district court also noted that “no serious injuries or harms have




5
  Because there is no serious question that the ADA requires a six-month delay in
Caltrans’s efforts to clear the encampments, we decline to reach Caltrans’s
arguments about irreparable harm, state law, and the scope of the injunction.

                                          22
occurred.”6 

 Despite the serious risks to the public, the district court decided that

the balance of hardships tipped sharply in Plaintiffs’ favor because Caltrans could

allow people to move to Seabreeze, a different Caltrans property that had been

previously cleared.7 

      The district court correctly recognized the public safety risks associated with

allowing the campers to stay. But it erred by finding that these risks were mitigated

by the injunction’s “limited duration” and the fact that Caltrans is “in a position to

mitigate the risk associated with the encampments at issue by allowing campers to

stay, on a temporary basis, . . . at Seabreeze.” 

 The length of the injunction was

invalid, and consideration of reopening Seabreeze as a mitigating factor was also

improper.

      Caltrans strongly objected to allowing the encampments to be moved to

Seabreeze, and rightfully so. The district court cannot require Caltrans to allow the

campers to live on another Caltrans property because such an order goes beyond

preserving the status quo. Cf. Fraihat v. ICE, 

 (9th Cir. 2021).




6
 A dog belonging to two Plaintiffs, however, was struck and killed by a passing
vehicle directly in front of one of the encampments.
7
  The district court excepted one portion of the encampments from this conclusion:
it permitted Caltrans to clear the right of way leased for the construction project to
build new housing.

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This would be no different from the district court requiring Caltrans to move the

campers into a hotel or other housing.

      The district court cites no authority for why it could require Caltrans to do so.

Nor does it include this requirement as part of the injunction. Instead, it shoehorns

this solution into the injunction by stating that “if Caltrans were to allow the

individual plaintiffs to move to Seabreeze, the Court would lift the preliminary

injunction.” See Where Do We Go Berkeley, 

, at *4. The district

court improperly considered this as a mitigating factor, and thus the district court

erred in minimizing the serious hardships posed by the injunction.

      The district court’s erroneous analysis comes with another consequence. The

district court acknowledged that “the balance of hardship shifts in Caltrans’s favor

over time.” 

. But its balancing assumed that the harms to Caltrans and the

public could be reduced to nothing if Caltrans reopened Seabreeze, so we are left in

the dark about how and when that shift occurs and, most importantly, at what point

the balancing of the equities would no longer tip strongly in Plaintiffs’ favor. For

all these reasons, the district court abused its discretion in balancing the equities.

                                           V

      We vacate the district court’s injunction. The district court legally erred in

holding that a serious question exists as to whether Caltrans violated the ADA.

Requiring Caltrans to delay clearing its properties for six months is not a reasonable


                                           24
modification of Caltrans’s programs. The district court also erred when balancing

the equities by inappropriately mitigating the harm to Caltrans and the public and

ignoring how the balance of hardship shifts in Caltrans’s favor over time.

      VACATED AND REMANDED.




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