     06-4730-cv
     Roberts v. Royal Atlantic Corporation



1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: December 11, 2007                  Decided: September 18, 2008)

5                              Docket No. 06-4730-cv

6                    -------------------------------------

7         JUNE ROBERTS, STEPHEN LEE AND SUFFOLK INDEPENDENT LIVING
8                           ORGANIZATION (SILO),

9                             Plaintiffs-Appellants,

10                      ANITA BRADLEY, ELIZABETH GARDNER,

11                                   Plaintiffs,

12                                       - v -

13     ROYAL ATLANTIC CORPORATION, ROYAL ATLANTIC NORTH CORPORATION,
14    ROYAL ATLANTIC RESTAURANT CORPORATION, THEMISTOCLES KALIMNIOS,
15       ANTHONY KALIMNIOS, STEVEN KALIMNIOS, OCEAN REALTY HOLDING
16   CORPORATION, DES REALTY CORPORATION, and STAR DEVELOPMENT REALTY
17                          HOLDING CORPORATION,
18
19                             Defendants-Appellees.

20                   -------------------------------------

21   Before:     JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.

22               Appeal from a judgment of the United States District

23   Court for the Eastern District of New York (Leonard D. Wexler,

24   Judge), following a bench trial, in favor of the defendants.        The

25   court decided that 28 C.F.R. § 36.402(a), promulgated under Title

26   III of the Americans With Disabilities Act, 42 U.S.C. § 12182 et

27   seq., which, under specified circumstances, requires that altered

28   portions of public accommodations be made accessible to the
1    disabled, does not apply because there is no evidence that any

2    part of the defendants' property was altered after 1992, a

3    prerequisite to the applicability of the regulation.    The court

4    further concluded that the defendants' statutory obligations

5    under the Act to remove architectural barriers under certain

6    circumstances did not apply because the plaintiffs had not

7    established that their proposals for removal would be "readily

8    achievable" under the terms of the Act.

9              Vacated and remanded.

10                             MARTIN J. COLEMAN, Hauppauge, NY, for
11                             Plaintiffs-Appellants;
12
13                             ALLAN M. CANE, Fairfield, CT, for
14                             Defendants-Appellees.

15   SACK, Circuit Judge:

16             The plaintiffs-appellants are disabled individuals --

17   most of whom require a wheelchair for mobility -- and a non-

18   profit organization that provides services for, and advocates on

19   behalf of, disabled persons in Suffolk County, New York.     In a

20   complaint filed in the United States District Court for the

21   Eastern District of New York, the plaintiffs allege that the

22   defendants, who own and manage a resort complex in Suffolk County

23   ("Resort"), violate Title III of the Americans With Disabilities

24   Act ("ADA"), 42 U.S.C. § 12182 et seq., because the Resort's

25   rooms and facilities are not wheelchair-accessible.    The

26   plaintiffs sought injunctive and declaratory relief, attorneys'

27   fees, and costs.   Following a bench trial, the district court

28   (Leonard D. Wexler, Judge) filed Findings of Fact and Conclusions

                                       2
1    of Law and, on the basis thereof, entered judgment in favor of

2    the defendants.

3               For the reasons that follow, we vacate the district

4    court's judgment and remand for further proceedings.

5                                BACKGROUND

6               We summarize here those findings of fact relevant to

7    this appeal that were made by the district court judge following

8    the bench trial.

9               The Resort consists of several buildings containing

10   apartment units located on oceanfront property in Montauk, New

11   York.   The Resort is organized for legal purposes as distinct

12   residential cooperative corporations.     Two of them are among the

13   defendants here -- the Royal Atlantic Corporation ("Royal

14   Atlantic South") and the Royal Atlantic North Corporation ("Royal

15   Atlantic North").

16              Royal Atlantic North owns thirty-nine units of the

17   Resort in a complex of five two-storey buildings.     Royal Atlantic

18   South owns ninety-eight units in a complex of six two-storey

19   buildings.   None of the buildings has an elevator.

20              Most of the Resort's units are between 250 and 450

21   square feet in area and include a bathroom and small kitchen.

22   Each complex has one pool surrounded by a narrow deck.     Each

23   complex also has an associated parking lot.     Although there are

24   ramps leading from these lots to the Resort buildings, they are

25   too narrow for a wheelchair to navigate and, for that reason

26   among others, are not ADA-compliant.     Both parking lots are

                                      3
1    relatively narrow (approximately fifty feet wide) and have gravel

2    surfaces.

3                The two cooperative corporations also own the Resort's

4    land and buildings.    They lease units to individuals and entities

5    known as "proprietary tenants" who are in turn shareholders in

6    one or more of the corporations.       Many proprietary tenants rent

7    their units to members of the general public during the summer,

8    although they may, of course, choose to occupy their own units

9    during that period instead.

10               Units available for rent are typically advertised on

11   the Resort's website.    Defendant Double K Management Corporation

12   ("Double K") acts as a sales agent for the rentals.      Double K

13   also serves as a management agent to provide maid, maintenance,

14   and other services for each unit.

15               Each proprietary tenant leases his or her unit from one

16   of the two corporations on terms that require that the tenant

17   keep the interior of the unit -- anything within its walls -- in

18   good repair.    The corporations bear the responsibility for all

19   other maintenance and repair related to the buildings, walkways,

20   surrounding areas, and other common areas.

21               In June 2003, plaintiff Stephen Lee ("Lee"), who

22   because of his disability must use a wheelchair to move about,

23   was a guest at the Resort.    Upon his arrival, he had difficulty

24   navigating his wheelchair through the gravel-covered parking lot

25   and was unable to ascend steps leading to the Resort office in

26   order to check in.

                                        4
1              Lee experienced daily frustration and embarrassment

2    during the remainder of his stay.     He was unable to use the

3    bathroom in his unit because its doorway was too narrow to

4    accommodate his wheelchair.   As a result, he was forced to enlist

5    family members to assist him.   Lee was also unable to reach

6    either of the Resort's pool areas in his wheelchair.

7              One of the other plaintiffs, June Roberts, uses a

8    wheelchair and is the director of plaintiff Suffolk Independent

9    Living Organization ("SILO"), a not-for-profit corporation that

10   acts as an advocate for disabled individuals in Suffolk County.

11   Roberts testified that she visited the resort in April 2003

12   hoping to find a suitable location for a SILO conference, found

13   that the Resort was not accessible, and was unable to use a grant

14   for a conference because of the lack of accessible, affordable

15   accommodations in Montauk.    In February 2004, Lee and the other

16   plaintiffs filed the complaint initiating this lawsuit.

17             A bench trial began on May 31, 2005.     The district

18   court examined the following issues relating to accessibility at

19   the Resort: (1) the creation of accessible routes to Royal

20   Atlantic South and Royal Atlantic North from their respective

21   parking areas by way of ramps; (2) the configuration and

22   modification of the parking areas at the Resort; (3) the creation

23   of accessible parking spaces at Royal Atlantic South and Royal

24   Atlantic North without substantially limiting the number of

25   parking spaces or interfering with maintenance access to a

26   cesspool; (4) access to the pool areas located at the Resort; and

                                       5
1    (5) the modification of some, but not all, of the previously

2    altered apartment units.   Roberts v. Royal Atl. Corp., 445 F.

3    Supp. 2d 239, 244, 246 (E.D.N.Y. 2006).

4               At one point in the proceedings, the parties agreed

5    that a report by an independent architect evaluating the

6    feasibility of bringing the resort into compliance with the ADA

7    would be prepared in hopes that it would facilitate a settlement.

8               On August 15, 2006, the court rendered its Findings of

9    Fact and Conclusions of Law.   Among the latter, it decided, that

10   Lee had standing to bring this action,    and that the Resort was a

11   place of public accommodation under 42 U.S.C. § 12181(7)(A).1

12              As the court further recognized, regulations adopted

13   pursuant to the ADA impose access requirements on alterations

14   made to public accommodations after January 26, 1992.     See 28

15   C.F.R. § 36.402(a);2 see also 28 C.F.R. § 36.402(b) (an


          1
              42 U.S.C. § 12181(7)(A) provides in pertinent part:
                The following private entities are considered
                public accommodations for purposes of this
                subchapter, if the operations of such
                entities affect commerce --
                (A) an inn, hotel, motel, or other place of
                lodging, except for an establishment located
                within a building that contains not more than
                five rooms for rent or hire and that is
                actually occupied by the proprietor of such
                establishment as the residence of such
                proprietor . . . .
          2
              Section 36.402(a) provides:

                Any alteration to a place of public
                accommodation or a commercial facility, after
                January 26, 1992, shall be made so as to
                ensure that, to the maximum extent feasible,
                the altered portions of the facility are
                                      6
1    "alteration" is "a change to a place of public

2    accommodation . . . that affects or could affect the usability of

3    the building or facility or any part thereof").      The court

4    decided, however, that the ADA's access requirements did not

5    apply here because "[t]here was no evidence that the Resort

6    underwent any alteration after 1992" within the meaning of ADA

7    regulations.    Roberts, 445 F. Supp. 2d at 247.

8               As the district court also noted, the ADA requires

9    removal of architectural barriers, regardless of whether

10   alterations have been made, "where such removal is readily

11   achievable."    42 U.S.C. § 12182(b)(2)(A)(iv);3 see 42 U.S.C.


                readily accessible to and usable by
                individuals with disabilities, including
                individuals who use wheelchairs.

     28 C.F.R. § 36.402(a).
          3
              Section 12182 provides in pertinent part:

                (a) General rule. No individual shall be
                discriminated against on the basis of
                disability in the full and equal enjoyment of
                the goods, services, facilities, privileges,
                advantages, or accommodations of any place of
                public accommodation by any person who owns,
                leases (or leases to), or operates a place of
                public accommodation.
                . . . .
                [(b)(2)(A)]: Discrimination. For purposes of
                subsection (a), discrimination includes --
                    . . . .
                      [iv] a failure to remove
                      architectural barriers, and
                      communication barriers that are
                      structural in nature, in existing
                      facilities, and transportation
                      barriers in existing vehicles and
                      rail passenger cars used by an
                                       7
1    § 12181(9) ("'[R]eadily achievable' means 'easily accomplishable

2    and able to be carried out without much difficulty or

3    expense.'").    The court concluded, however, that the plaintiffs

4    had the burden of proving that the modifications they sought

5    would be "readily achievable" and that they failed to meet that

6    burden.   Roberts, 445 F. Supp. 2d at 248.

7               Based on these conclusions, the court entered judgment

8    in favor of the defendants.    The plaintiffs appeal.

9                                  DISCUSSION

10              On appeal from a judgment after a bench trial, we

11   review the district court's findings of fact for clear error and

12   its conclusions of law de novo.    Mixed questions of law and fact

13   are also reviewed de novo.    Well-Made Toy Mfg. Corp. v. Goffa

14   Int'l Corp., 354 F.3d 112, 115 (2d Cir. 2003).

15              I.   Standing

16              The defendants do not dispute, and we agree with, the

17   district court's determination that Lee had standing to seek all

18   of the relief that he pursued before the district court at trial:

19   wheelchair access to, from, and within the parking lots, pools,

20   and within at least two apartment units.     However, we note that




                      establishment for transporting
                      individuals (not including barriers
                      that can only be removed through
                      the retrofitting of vehicles or
                      rail passenger cars by the
                      installation of a hydraulic or
                      other lift), where such removal is
                      readily achievable . . . .
     42 U.S.C. § 12182 (emphasis added).
                                     8
1    SILO is asserting standing as an organization based on its

2    inability to book hotel rooms in Montauk for its disabled

3    employees and conference participants.    In light of the number of

4    disabled SILO employees and conference participants, it may be

5    that SILO's injury as an organization would not be redressed by

6    an injunction requiring Royal Atlantic to bring several units

7    into ADA compliance.    Therefore, on remand to the extent that

8    SILO or any other plaintiff seeks relief distinct from that

9    sought by Lee or on different claims than those pursued by Lee,

10   the district court should consider whether each such plaintiff

11   has standing.4   In this connection, we note that 42 U.S.C.

12   § 12188(a)(1) provides that "[n]othing in this section shall

13   require a person with a disability to engage in a futile gesture

14   if such person has actual notice that a person or organization

15   covered by this subchapter does not intend to comply with its

16   provisions."

17             II.    Legal Framework

18             Title III of the ADA prohibits discrimination against

19   individuals "on the basis of disability in the full and equal

20   enjoyment of the goods, services, facilities, privileges,

21   advantages, or accommodations of any place of public



          4
             The relief originally sought by the plaintiffs in their
     complaint included, inter alia, "Braille or enlarged font" signs
     and restaurant menus for persons with severe, uncorrected visual
     impairments. There is no allegation that Lee has a visual
     impairment; we therefore doubt he would have standing to seek
     such relief. But in the course of the district court proceedings
     the plaintiffs abandoned their claims related to this relief. We
     need not and do not address those claims here.
                                     9
1    accommodation . . . ."   42 U.S.C. § 12182(a).    A Title III claim

2    therefore requires that a plaintiff establish that (1) he or she

3    is disabled within the meaning of the ADA; (2) that the

4    defendants own, lease, or operate a place of public

5    accommodation; and (3) that the defendants discriminated against

6    the plaintiff within the meaning of the ADA.     See Camarillo v.

7    Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).     There is little

8    dispute that the first two requirements have been met.     At issue

9    is the third: whether the inaccessibility of the Resort to

10   wheelchair users constitutes discrimination under the ADA.

11             The ADA describes discrimination in both general and

12   specific terms.   Two provisions are relevant to this appeal.    The

13   first, which addresses the making of alterations, provides that

14   "discrimination" includes,

15             with respect to a facility or part thereof
16             that is altered by, on behalf of, or for the
17             use of an establishment in a manner that
18             affects or could affect the usability of the
19             facility or part thereof, a failure to make
20             alterations in such a manner that, to the
21             maximum extent feasible, the altered portions
22             of the facility are readily accessible to and
23             usable by individuals with disabilities,
24             including individuals who use wheelchairs.
25             Where the entity is undertaking an alteration
26             that affects or could affect usability of or
27             access to an area of the facility containing
28             a primary function, the entity shall also
29             make the alterations in such a manner that,
30             to the maximum extent feasible, the path of
31             travel to the altered area and the bathrooms,
32             telephones, and drinking fountains serving
33             the altered area, are readily accessible to
34             and usable by individuals with disabilities
35             where such alterations to the path of travel
36             or the bathrooms, telephones, and drinking
37             fountains serving the altered area are not
38             disproportionate to the overall alterations
                                     10
1               in terms of cost and scope (as determined
2               under criteria established by the Attorney
3               General).

4    42 U.S.C. § 12183(a)(2) (emphasis added).    The second provides

5    that "discrimination" includes "a failure to remove architectural

6    barriers . . . in existing facilities . . . where such removal is

7    readily achievable."    Id. § 12182(b)(2)(A)(iv).

8               We must therefore first determine whether a challenged

9    facility (or part thereof) has been "altered" in "a manner that

10   affects or could affect its usability."    If alterations have been

11   made, a defendant "discriminates" if those altered areas -- and

12   paths of travel to altered areas that "contain[] a primary

13   function" -- are not made readily accessible to disabled

14   individuals "to the maximum extent feasible."    Id.   Even in the

15   absence of alterations, a defendant nonetheless "discriminates"

16   if it fails to remove any existing barriers to accessibility

17   where such removal "is readily achievable."    Id.

18   § 12182(b)(2)(A)(iv).

19   A.   When Is a Facility "Altered"?

20              The ADA does not expressly define the term "altered."

21   The Department of Justice's implementing regulations, however,

22   define "alteration" as "a change to a place of public

23   accommodation or commercial facility that affects or could affect

24   the usability of the building or facility or any part thereof."

25   28 C.F.R. § 36.402(b).    The regulation describes by illustration

26   what constitutes an alteration.

27              Alterations include, but are not limited to,
28              remodeling, renovation, rehabilitation,
                                       11
 1             reconstruction, historic restoration, changes
 2             or rearrangement in structural parts or
 3             elements, and changes or rearrangement in the
 4             plan configuration of walls and full-height
 5             partitions. Normal maintenance, reroofing,
 6             painting or wallpapering, asbestos removal,
 7             or changes to mechanical and electrical
 8             systems are not alterations unless they
 9             affect the usability of the building or
10             facility.
11   28 C.F.R. § 36.402(b)(1) (emphasis added).

12             Under the implementing regulations, then, the concept

13   of "usability" appears to be central to determining whether an

14   alteration has been made.   And the Department of Justice has

15   commented that it "remains convinced that the [ADA] requires the

16   concept of 'usability' to be read broadly to include any change

17   that affects the usability of the facility, not simply changes

18   that relate directly to access by individuals with disabilities."

19   Final Rule, Nondiscrimination on the Basis of Disability by

20   Public Accommodations and in Commercial Facilities, 56 Fed. Reg.

21   35,544, 35,581 (July 26, 1991) ("Title III Final Rule").   The

22   absence of a formal definition, however, renders interpretation a

23   challenge.   Neither the statute nor the regulation specifies the

24   allocation of burdens of production and persuasion between the

25   parties in establishing whether a facility has been altered.

26             The illustrations provided at section 36.402(b)(1), for

27   example, suggest a distinction between major and minor changes to

28   a facility -- relative to its overall size -- as well as between

29   changes that do and do not affect the activities that can be

30   performed in the facility, particularly those that are dependent

31   on a facility's physical layout.

                                     12
1               The ADA's requirement that "new construction," like

2    altered facilities, be made "readily accessible and usable" to

3    disabled individuals provides a separate and useful reference

4    point.   See 42 U.S.C. § 12183(a).     The greater the change made by

5    a modification to a facility or portion of a facility, the closer

6    it is, in effect, to new construction.     This is consistent with

7    the relativity principle in section 36.402(b)(1): The more a

8    place is altered, the easier and cheaper it becomes, in both

9    absolute and relative terms, to integrate incidentally features

10   that facilitate ADA access.   The ADA contemplates that both

11   "alterations" and "new constructions" should be subject to

12   similar accessibility requirements.

13              The concept of alteration seems generally to exclude

14   from "alterations" those modifications that essentially preserve

15   the status and condition of a facility, rather than rendering it

16   materially "new" in some sense.    As the cost, degree, or scope of

17   a modification decreases, the likelihood that it approaches the

18   equivalent of "new construction" or is therefore an alteration

19   under the ADA also decreases.   Even a relatively inexpensive or

20   localized modification may, however, so fundamentally change the

21   use of a facility that we would regard it as an alteration,

22   particularly if it affects the purpose, function, or underlying

23   structure of the facility.

24              Accordingly, our considerations for determining whether

25   the modifications in this case are alterations under the ADA can

26   (but need not) include factors such as:

                                       13
1              1.   The overall cost of the modification
2                   relative to the size (physical and
3                   financial) of the facility or relevant
4                   part thereof.

5              2.   The scope of the modification (including
6                   what portion of the facility or relevant
7                   part thereof was modified).

 8             3.   The reason for the modification
 9                  (including whether the goal is
10                  maintenance or improvement, and whether
11                  it is to change the purpose or function
12                  of the facility).

13             4.   Whether the modification affects only
14                  the facility's surfaces or also
15                  structural attachments and fixtures that
16                  are part of the realty.5

17             Before making this assessment in the case before us, we

18   must consider who bears the burden to establish that a

19   modification is or is not an alteration.   These regulations and

20   commentary indicate that the concept of "alteration" is a

21   relative one, requiring us to consider the nature, cost, degree,

22   scope, and purpose of any alleged alteration.   Our analysis is

23   guided by our decision in Borkowski v. Valley Central School

24   District, 63 F.3d 131 (2d Cir. 1995).   There, we addressed the

25   allocation of burdens for the analogous task of establishing a

26   "reasonable accommodation" for purposes of the Rehabilitation

27   Act, 29 U.S.C. § 794.   See Henry H. Perritt, Jr., Americans with


          5
             Other cases may of course raise questions not at issue
     here, and the list is not meant to be exhaustive. See Final
     Rule, Nondiscrimination on the Basis of Disability by Public
     Accommodations and in Commercial Facilities, 56 Fed. Reg. 35,544,
     35,581 (July 26, 1991) ("The Department remains convinced that
     the Act requires the concept of 'usability' to be read broadly to
     include any change that affects the usability of the facility,
     not simply changes that relate directly to access by individuals
     with disabilities.").
                                     14
1    Disabilities Act Handbook § 1.02 (4th ed. 2003) ("The definition

2    of disability is identical under the [ADA and the Rehabilitation

3    Act], as are the basic concepts of discrimination, reasonable

4    accommodation, and program and facility accessibility.").

5              In Borkowski, we observed that in applying the

6    Rehabilitation Act and related statutes, our case law bars us

7    from placing both the initial burden of production and the

8    ultimate burden of persuasion on either the plaintiff or the

9    defendant.    Instead, we follow a "middle course."   Borkowski, 63

10   F.3d at 137.    To establish a "reasonable accommodation," a

11   plaintiff "bears only a burden of production" that "is not a

12   heavy one."    Id. at 138.   That is, it would be "enough for the

13   plaintiff to suggest the existence of a plausible accommodation,

14   the costs of which, facially, do not clearly exceed its benefits.

15   Once the plaintiff has done this, she has made out a prima facie

16   showing that a reasonable accommodation is available, and the

17   risk of nonpersuasion falls on the defendant."     Id.

18             We concluded in Borkowski that the plaintiff's burden

19   does not require him or her to furnish exact or highly detailed

20   cost estimates.    Because defendants possess superior access to

21   information regarding their own facilities, such as architectural

22   plans, maintenance requirements and history, and the historical

23   and projected costs of repairs and improvements, they are

24   typically in a position far more easily to refute a plaintiff's

25   proposal as unreasonable than is a plaintiff to prove otherwise.

26   As we put it in Borkowski, the defendants have "far greater

                                       15
1    access to information than the typical plaintiff, both about

2    [their] own organization and, equally importantly, about the

3    practices and structure of the industry as a whole."   Id. at 137.

4               A similar analysis applies to our determination of

5    whether a facility has been "altered."   As in Borkowski and in

6    light of our "alteration" analysis above, defendants can be

7    expected to have superior access to information with which to

8    refute assertions that their facilities have been altered within

9    the meaning of the statute and the applicable regulations and

10   commentary.   To establish the existence of an alteration, a

11   plaintiff fulfills his or her initial burden of production by

12   identifying a modification to a facility and by making a facially

13   plausible demonstration that the modification is an alteration

14   under the ADA.   The defendant then bears the burden of persuasion

15   to establish that the modification is in fact not an alteration.

16              If we determine that a particular modification is an

17   alteration under the ADA, we must then decide whether the

18   alteration was made readily accessible and usable to disabled

19   individuals to the "maximum extent feasible."   42 U.S.C.

20   § 12183(a)(2).

21   B.   When Is an Altered Facility Made Readily Accessible
22        and Usable to the "Maximum Extent Feasible"?

23              As explained by regulation:

24              The phrase 'to the maximum extent
25              feasible' . . . applies to the occasional
26              case where the nature of an existing facility
27              makes it virtually impossible to comply fully
28              with applicable accessibility standards
29              through a planned alteration. In these
30              circumstances, the alteration shall provide
                                      16
 1             the maximum physical accessibility feasible.
 2             Any altered features of the facility that can
 3             be made accessible shall be made accessible.
 4             If providing accessibility in conformance
 5             with this section to individuals with certain
 6             disabilities (e.g., those who use
 7             wheelchairs) would not be feasible, the
 8             facility shall be made accessible to persons
 9             with other types of disabilities (e.g., those
10             who use crutches, those who have impaired
11             vision or hearing, or those who have other
12             impairments).

13   28 C.F.R. § 36.402(c).   Section 12183's "maximum extent feasible"

14   requirement does not ask the court to make a judgment involving

15   costs and benefits.    Instead it requires accessibility except

16   where providing it would be "virtually impossible" in light of

17   the "nature of an existing facility."   28 C.F.R. § 36.402(c).

18   The statute and regulations require that such facilities be made

19   accessible even if the cost of doing so -- financial or otherwise

20   -- is high.   Indeed, in promulgating the implementing

21   regulations, the Department explicitly rejected suggestions that

22   cost be considered with respect to this provision.   See Title III

23   Final Rule, 56 Fed. Reg. at 35,581 ("The legislative history of

24   the ADA indicates that the concept of feasibility only reaches

25   the question of whether it is possible to make the alteration

26   accessible in compliance with this part.   Costs are to be

27   considered only when an alteration to an area containing a

28   primary function triggers an additional requirement to make the

29   path of travel to the altered area accessible."); id. ("Any

30   features of the facility that are being altered shall be made

31   accessible unless it is technically infeasible to do so.").


                                     17
1              Only if there is some characteristic of the facility

2    itself that makes accessibility "virtually impossible," then, may

3    the provision of access be excused.    Even in such cases,

4    accessibility must be provided for all types of disabilities for

5    which nondiscrimination is possible.    For example, if a doorway

6    is altered but the hallways leading to and from the doorway

7    remain unaltered and too narrow for wheelchairs, this would seem

8    to be the sort of "technical infeasibility," Title III Final

9    Rule, 56 Fed. Reg. at 35,581, that would excuse a failure to

10   provide accessibility.   The owner would nonetheless be required

11   to render maximal accessibility for other kinds of disabilities.

12   Furthermore, because both the statute and regulations require

13   that the alterations themselves be made to provide the maximum

14   feasible accessibility, a court's assessment of feasibility must

15   be made with respect to the state of the facility before the

16   alterations in question were made, rather than the facility's

17   post-alteration state.

18             Although the "maximum extent feasible" standard is not

19   a relative phrase in the same sense as is a reasonableness

20   requirement, the applicable burdens of production and persuasion

21   remain appropriately drawn from Borkowski, for the standard

22   requires a similar degree of reliance on facilities-related

23   information to which defendants would be expected to have

24   superior access.   So, once a plaintiff has met an initial burden

25   of production identifying some manner in which the alteration

26   could be, or could have been, made "readily accessible and usable

                                     18
1    by individuals with disabilities, including individuals who use

2    wheelchairs," the defendant then bears the burden of persuading

3    the factfinder that the plaintiff's proposal would be "virtually

4    impossible" in light of the "nature of the facility."   42 U.S.C.

5    § 12183; 28 C.F.R. § 36.402.

6              Section 12183(b), it will be recalled, requires that if

7    a covered entity undertakes an alteration that affects or could

8    affect usability of or access to an area of the facility

9    containing a primary function, the entity must also make the

10   alteration so that, "to the maximum extent feasible," the path of

11   travel to the altered area and certain other facilities --

12   bathrooms, telephones, and drinking fountains serving the altered

13   area, 28 C.F.R. § 36.403 -- are readily accessible to and usable

14   by individuals with disabilities, provided the alterations

15   required by this provision are not disproportionate to the

16   overall alterations in terms of cost and scope or that the

17   original alteration did not affect, nor could have affected, the

18   usability of the facility.   The same Borkowski burden-shifting

19   mechanism applies when considering compliance in this regard.

20             The proportionality requirement limits the extent to

21   which supporting areas must be made accessible.    This changes the

22   burdens placed on ADA plaintiffs and defendants.   A plaintiff

23   challenging the accessibility of the paths of travel, restrooms,

24   telephones, and drinking fountains serving an altered area

25   containing a primary function bears an initial burden of

26   production that the area in question is covered by the statute

                                     19
1    and that the desired access may be achieved with a cost and scope

2    not disproportionate to the overall alteration.     This burden may

3    be met with cost estimates that are facially plausible, without

4    reference to design details, and are such that the defendant can

5    assess its feasibility and cost.     Once this burden is met, the

6    defendant must persuade the factfinder that the cost and scope of

7    compliance would, in fact, be disproportionate, or that the areas

8    in question are not paths of travel (or restrooms, telephones, or

9    drinking fountains) within the meaning of the statute and

10   regulations.

11   C. When is the Removal of an Architectural Barrier "Readily
12    Achievable"?

13             We conclude that the Borkowski approach is also

14   appropriate when considering the removal of barriers under 42

15   U.S.C. § 12182(b)(2)(A)(iv), which applies even to facilities

16   that are neither new nor altered, and that are not paths of

17   travel, bathrooms, telephones, or drinking fountains serving an

18   altered area.   When evaluating a claim under this provision, we

19   require a plaintiff to articulate a plausible proposal for

20   barrier removal, "the costs of which, facially, do not clearly

21   exceed its benefits."   Borkowski, 63 F.3d at 138.    Neither the

22   estimates nor the proposal are required to be exact or detailed,

23   for the defendant may counter the plaintiff's showing by meeting

24   its own burden of persuasion and establishing that the costs of a

25   plaintiff's proposal would in fact exceed the benefits.     Because

26   the concept of "readily achievable" is a broad one, either party


                                     20
1    may include in its analysis, as costs or benefits, both monetary

2    and non-monetary considerations.6

3               III.   Wheelchair Access at the Resort

4               We examine the plaintiffs' claims for relief as they

5    have been presented on appeal within the legal framework set

6    forth in Part II of this opinion, above.    Our analysis is limited

7    to the same issues considered by the district court regarding

8    wheelchair access within, to, and from the parking areas and pool

9    areas, and the modification of any two units to be usable by

10   wheelchair users.    We address only the issues that have been

11   brought before us, which do not, of course, include whether the

12   defendants have other obligations under the ADA.

13   A.   Unit Accessibility

14              The first question is whether the units at the Resort

15   have been altered within the meaning of the ADA and applicable

16   regulations.   This inquiry is a mixed question of law and fact.

17   We therefore review de novo the district court's conclusion that

18   "[t]here was no evidence that the Resort underwent any alteration

19   after 1992."   Roberts, 445 F. Supp. 2d at 247.     We review the

20   court's underlying factual findings for clear error.



           6
             This view of the plaintiff's initial burden departs
     somewhat from that expressed by the Tenth Circuit in Colorado
     Cross Disability Coalition v. Hermanson Family Ltd. Partnership
     I, 264 F.3d 999 (10th Cir. 2001), where the court required that a
     plaintiff furnish "precise cost estimates" and "specific design"
     details regarding his proposed accommodation. Id. at 1009. We
     think that this asks too much of the typical plaintiff,
     particularly where defendants can so quickly dispose of non-
     meritorious claims by reference to their knowledge and
     information regarding their own facilities.
                                     21
1              Based on the record and the district court's findings

2    of fact, we conclude to the contrary, and as a matter of law,

3    that a large fraction of the Resort's rooms were altered in the

4    course of renovations made in 2000 and 2001.   The district court

5    did not make any specific findings regarding these renovations,

6    but there is ample evidence to convince us that the affected

7    units were altered then.

8              The minutes of a meeting of shareholders of the Royal

9    Atlantic Cooperative Corporation,7 held December 13, 1999,

10   reported the shareholders' view that the "[b]athrooms and

11   [k]itchens need[ed] to be [r]enovated for the 2001 season."     The

12   minutes explained that:

13             In 1995 suggestions were made by owners,
14             management and guests in reference to the
15             condition of the bathrooms and kitchens. At
16             that time management was asked to be aware
17             but not pursue renovations. Through the
18             years, we have done everything possible to
19             repair and maintain these items. At this
20             time their age (23-27 years) and wear are
21             entirely to[o] evident. Their condition has
22             progressed, and only a hand[ful] of rooms are
23             in satisfactory shape.

24   Minutes of the Sixteenth Annual Shareholders Meeting of Royal

25   Atlantic Cooperative Corp., Dec. 13, 1999, at 5 ("1999 Minutes").

26   The estimated costs and scope of the renovations to each unit

27   were described as follows:

28             Bathroom: $3,740.00

29             Complete gut to studs, install wonderboard at
30             tub surround and sheetrock remainder, install


          7
             The plaintiffs presented evidence of unit alterations
     only for those owned by Royal Atlantic South.
                                     22
1                new floor tiles on mud base, wall tiles,
2                shower enclosure, light fixture, tub and
3                shower body, toilet, lavatory and faucet,
4                spackle and paint.

5                Kitchen: $1,364.00

6                Remove and replace linoleum floor, baseboard
7                molding and kitchen cabinets. Replace sink,
8                faucet and stove as needed. Replace electric
9                outlets to G.F.I., spackle and paint.

10   Id. at 6.    The minutes stated that these renovations would "start

11   at the end of the 2000 season and [be] completed the spring of

12   year 2001.    The actual cost for this project will be billed

13   directly to the unit owners and collected from the rental . . .

14   of the year 2000 season."    Id.   These renovations, according to

15   the minutes, would "offer our guests yet another reason to

16   continue their patronage at our unique seaside resort."      Id. at

17   5-6.

18               The minutes of the shareholder meeting of the following

19   year, 2000, confirmed the progress being made with respect to

20   these renovations.    The minutes noted that "[r]enovation is on

21   schedule[.]    [A]ll rooms have been gutted and the repair stages

22   are in full swing.    The only problems so far ha[ve] been that

23   there appears to have been more rotted floors and joists th[a]n

24   anticipated."    Minutes of the Seventeenth Annual Shareholders

25   Meeting of Royal Atlantic Corp., Dec. 11, 2000, at 7.       And one

26   year after that, the minutes of the annual meeting noted that

27   during 2001, Royal Atlantic had "[c]ompleted renovations to 100

28   bathrooms, kitchens, and foyers."       Minutes of the Royal Atlantic

29   Corp. Stockholders Meeting, Dec. 12, 2001, at 4.       The kitchen and

                                        23
1    bath renovations cost a total of $527,095.00, which included the

2    installation of certain ADA-compliant fixtures such as faucets,

3    grab bars, tiles, and linoleum.    Id., addendum.

4                There is thus little doubt that the kitchens and

5    bathrooms of the renovated rooms had been "altered" within the

6    meaning of the ADA.    First, as a renovation, these modifications

7    easily fall within the illustrative examples of alterations at 28

8    C.F.R. § 36.402(b)(1).    By performing a "gut to studs," Royal

9    Atlantic essentially rebuilt the bathrooms and kitchens.      The

10   defendants would therefore have had ample opportunity to perform

11   the renovations in a way that would ensure access by the

12   disabled.

13               Moreover, this renovation work affected the vast

14   majority of rooms at Royal Atlantic South.      Its extensive nature

15   suggests that the conversion of only a few units to be more fully

16   accessible could have been achieved with a relatively small

17   marginal increase in difficulty and cost compared to the overall

18   cost of the project.    It also reflects Royal Atlantic's intent,

19   in undertaking these renovations, to upgrade the facilities,

20   rather than merely maintain them.      Having done "everything

21   possible to repair and maintain" the units' bathroom and kitchen

22   facilities, 1999 Minutes at 5, it appears that normal maintenance

23   was no longer sufficient in light of the facilities' age.        In the

24   course of updating and renovating these facilities, the

25   defendants changed the usability of the units.      The ensuing



                                       24
1    modifications are therefore properly considered alterations under

2    the ADA.

3               Because the renovations physically altered the Resort's

4    units in a manner that affected their usability, the ADA requires

5    that some of these units be made readily accessible and usable by

6    disabled individuals "to the maximum extent feasible."    See ADA

7    Accessibility Guidelines ("ADAAG"), 28 CFR Part 36, App. A,

8    revised July 1, 1994, §§ 9.1.2, 9.1.5 ("When sleeping rooms are

9    being altered in an existing facility, or portion thereof," four

10   rooms must be made accessible for every 76 to 100 altered rooms).

11   The plaintiffs satisfied their initial burden of production by

12   demonstrating that the defendants had not complied with the ADA

13   in this regard, and by presenting a feasible proposal for

14   renovating the rooms so as to make them wheelchair accessible.8

15   The burden therefore shifted to the defendants to demonstrate

16   that the prior alterations had been performed so that, "to the

17   maximum extent feasible," the necessary proportion of units were

18   each made readily accessible and usable by the disabled.

19   Although there are reasons to doubt that this burden has been

20   met, a decision on this issue requires a fact-intensive

21   determination that cannot be resolved on the existing record.

22   The district court should address this question in the first

23   instance after taking such additional evidence as deemed


          8
            Plaintiffs proffered an architect's report suggesting
     reasonably priced modifications that would render a typical unit
     wheelchair accessible. They would require adding accessories to
     the apartment and some renovations, which would enlarge the
     bathroom at the modest cost of some living space.
                                     25
1    advisable in order to do so.   As we have explained, only if

2    achieving accessibility would be "virtually impossible" in light

3    of the "nature" of the facility under 28 C.F.R. § 36.402(c) may

4    the accessibility requirement be relaxed.   On remand, the

5    district court may not consider the comparative cost or scope of

6    the proposed renovations.   The feasibility of alterations should

7    be ascertained with respect to the units' pre-alteration

8    configuration, rather than their present state.

9              Similarly, the defendants' assertion that they do not

10   now have the authority to renovate unilaterally specific units

11   for accessibility has little bearing on whether they violated the

12   ADA by renovating the kitchens and bathrooms without making any

13   of them wheelchair accessible.   Even if it is true that the

14   cooperative corporation defendants have no unilateral power to

15   interfere with individual proprietary leases, a proposition

16   suggested by Double K in a 2003 letter to shareholders apprising

17   them of this litigation, our inquiry under section 12183(b) is

18   backward-looking.   It asks whether, at the time the kitchen and

19   bathroom renovations were performed, the defendants had made

20   maximally feasible efforts to achieve the requisite level of

21   accessibility.   And although limitations on the defendants'

22   authority arising from the ownership structure of a facility may

23   be considered in evaluating the feasibility of compliance -- a

24   facility's ownership structure may fairly be encompassed within

25   the "nature" of that facility -- it seems to us that it would be



                                      26
1    a rare case where such limitations could excuse the ADA's

2    accessibility requirement.

3               Some of the factual issues the district court might

4    consider addressing on remand are whether the defendants could

5    have made some rooms wheelchair-accessible in the course of their

6    renovations in 2000 and 2001 by offering to purchase units as

7    they were offered for sale, by asking for volunteers among the

8    individual unit owners whose costs for ADA compliance would be

9    distributed among all owners, by offering additional compensation

10   to those who volunteered their units, or by some other

11   practicable and appropriate, even if costly, mechanism.

12              As explained at 28 C.F.R. § 36.403, "a 'primary

13   function' is a major activity for which the facility is

14   intended."   Royal Atlantic's rooms are, of course, the central

15   commercial offering of the facility.   The units renovated in 2000

16   and 2001 were therefore undoubtedly areas of "primary function."

17   As will be discussed, the paths of travel, bathrooms, telephones,

18   and drinking fountains serving these rooms are also subject to

19   the accessibility requirements of § 12183(b)(2), to the extent

20   that this accessibility could have been achieved with cost and

21   scope not disproportionate to the overall alteration.

22   B.   Parking Area Access and Accessibility

23              We apply a similar analysis to the Royal Atlantic

24   parking areas, asking first whether those areas have been

25   altered.   The record is sparse with respect to the modifications

26   made to these lots, beyond evidence that tons of gravel had been

                                     27
1    added in 2000 and 2001.   We therefore cannot, based on the

2    existing record, make a determination as a matter of law as to

3    whether the pool or parking areas have been altered.   The

4    district court should address this question on remand.

5              Should the district court conclude that the parking

6    lots were altered, the defendants would, of course, be required

7    to establish that they had been made readily accessible and

8    usable to the maximum extent feasible; the plaintiffs have amply

9    demonstrated the lots' inaccessibility to wheelchairs in

10   satisfaction of their initial burden of production.

11             If, on the other hand, the district court concludes

12   that the lots were not altered, then because the rooms were

13   altered, and were areas of primary function, there is a question

14   as to whether the lots are within the "path of travel" to the

15   rooms, or to any other altered portion of the facility.    See 42

16   U.S.C. § 12183(a)(2).   If so, they must also be made accessible

17   to the maximum extent feasible (provided the costs and scope of

18   doing so are not disproportionate to the room alterations).    If

19   not, the less stringent "readily achievable" standard for

20   existing facilities applies.

21             By regulation, a "path of travel" to an altered area

22   includes "a continuous, unobstructed way of pedestrian passage by

23   means of which the altered area may be approached, entered, and

24   exited, and which connects the altered area with an exterior

25   approach (including sidewalks, streets, and parking areas), an

26   entrance to the facility, and other parts of the facility."    28

                                     28
1    C.F.R. § 36.403(e)(1).   "An accessible path of travel may consist

2    of walks and sidewalks, curb ramps and other interior or exterior

3    pedestrian ramps; clear floor paths through lobbies, corridors,

4    rooms, and other improved areas; parking access aisles; elevators

5    and lifts; or a combination of these elements."    28 C.F.R.

6    § 36.403(e)(2).   Although section 36.403(e) might be read to

7    suggest that parking areas are no more than exterior approaches

8    and not within the "path of travel" contemplated by statute, we

9    think the better interpretation of this regulation is that the

10   exterior approach refers to those structures that adjoin, and

11   provide pedestrian access to, an owner's facilities, but that are

12   not in fact part of those facilities.    This interpretation is

13   supported by the inclusion of "parking access aisles" as elements

14   that may make up an accessible path of travel under 28 C.F.R.

15   § 36.403(e)(2).

16             We conclude that the Royal Atlantic parking areas are

17   along the path of travel to the rooms.    They connect this area to

18   the public street, which in this case provides the "exterior

19   approach" to the Resort.   Even if the parking lots were not

20   "altered," then, they must still be made accessible "to the

21   maximum extent feasible" at the time the alterations were made,

22   subject to the proportionality limitation explained in detail at

23   28 C.F.R. § 36.403(f) and (g).   However, because the path of

24   travel for a person traveling by car begins at his or her parking

25   space, this path need not include the entire parking area, only



                                      29
1    the path from an accessible parking space to the areas of public

2    function within the Resort.

3               Also, although we have focused only on the Resort

4    units, there may be other areas of primary function that were

5    altered and whose costs must be considered in determining whether

6    the cost and scope of accessibility would be disproportionate.

7    See 28 C.F.R. § 36.403(h)(2)(i) ("If an area containing a primary

8    function has been altered without providing an accessible path of

9    travel to that area, and subsequent alterations of that area, or

10   a different area on the same path of travel, are undertaken

11   within three years of the original alteration, the total cost of

12   alterations to the primary function areas on that path of travel

13   during the preceding three year period shall be considered in

14   determining whether the cost of making that path of travel

15   accessible is disproportionate.").    Should the district court

16   reach this question, a full analysis of alterations made to areas

17   of public function would be required.

18   C.   Access to Pool Areas

19              As with the parking lots, we cannot decide as a matter

20   of law based on the existing record whether the Resort's pool

21   areas were altered.   This is another subject for the district

22   court to consider upon remand.

23              Pool areas are obviously areas of primary function of a

24   seafront, summer resort.    If the district court concludes that

25   they were altered, it would follow that the Resort was required

26   to make paths of travel to these areas wheelchair accessible.

                                      30
1               If the district court determines that the pool areas

2    were not altered, the remaining question will be whether, because

3    the pool was an existing facility, the defendants had failed to

4    remove architectural barriers where such removal would be readily

5    achievable as required under the ADA.   In light of our discussion

6    of the proper application of this provision, the district court

7    -- should it reach this question -- must reconsider its prior

8    analysis of the plaintiffs' proposed pool renovations.

9               In its findings of fact, the district court observed

10   that the pool renovation "plan offered by Plaintiffs . . . failed

11   to take into account shifting sands, fencing requirements,

12   interference with balconies and the impact of a large ramp on the

13   number of people allowed by law to enter the pool area."

14   Roberts, 445 F. Supp. 2d at 246.   As a consequence, the court

15   concluded that "Plaintiffs failed in [their] burden" "to

16   establish that the modifications sought . . . are readily

17   achievable."   Id. at 248.

18              In light of the relative burdens borne by each party,

19   this analysis was flawed.    The plaintiffs satisfied their initial

20   burden of production by proffering plans -- proposed themselves

21   or with the aid of the independent architect -- that would permit

22   facially cost-effective wheelchair access to at least one of the

23   pool areas.9   The district court's finding that the plaintiffs

24   had failed to take into account various other factors is of

25   little import, for once the plaintiffs met their initial burden


          9
              This included a proposal for a ramp leading to the pool.
                                      31
1    of production, it was the defendants' responsibility to prove

2    that the proposals were not readily achievable.

3    D.   Requirements If ADA-Compliant Remedial Measures Are "Not
4         Readily Achievable"

5               An ADA regulation provides:

 6              If . . . the measures required to remove a
 7              barrier would not be readily achievable, a
 8              public accommodation may take other readily
 9              achievable measures to remove the barrier
10              that do not fully comply with [ADA]
11              requirements. Such measures include, for
12              example, providing a ramp with a steeper
13              slope or widening a doorway to a narrower
14              width than that mandated by the [ADA]. No
15              measure shall be taken, however, that poses a
16              significant risk to the health or safety of
17              individuals with disabilities or others.

18   28 C.F.R. § 36.304(d)(2).   The purpose of the regulation is to

19   "maximize the flexibility of public accommodations in undertaking

20   barrier removal by allowing deviations from the [ADA's] technical

21   standards," thereby promoting "certainty and good design at the

22   same time that permitting slight deviations will expand the

23   amount of barrier removal that may be achieved."   Title III Final

24   Rule, 56 Fed. Reg. at 35,570.   Even if the defendants meet their

25   burden, if one has been placed upon them, of demonstrating that

26   the plaintiffs' proposals for the removal of existing barriers

27   would not be readily achievable, the district court must then

28   determine, under that regulation, whether any of these proposals

29   would be readily achievable if certain ADA requirements were

30   relaxed.

31              There is evidence that application of this rule might

32   overcome some of the objections voiced by the defendants and the

                                     32
1    district court.    For example, it appears that the district court

2    has not considered fully the independent architect's testimony

3    that construction of a ramp in the north parking lot might be

4    readily achievable if the ADAAG requirements were relaxed to

5    permit a steeper ramp and the placement of accessible spaces

6    further from the general route of travel than the ADAAG would

7    otherwise allow.   Similarly, although the defendants argue that

8    the plaintiffs' proposal for a ramp leading to the north pool

9    area would not comply with the ADA's five-foot width requirement

10   because of the presence of a nearby transformer, the court did

11   not address the architect's assertion that such a problem could

12   be avoided if the ramp were constructed to be narrower than the

13   standard width otherwise mandated by the ADAAG.

14              The flexibility provision changes somewhat the

15   defendants' burden.   In addition to establishing that the

16   plaintiffs' proposals would not be readily achievable, defendants

17   must also establish that the proposals would not be readily

18   achievable even if ADA design requirements were relaxed.     Both

19   possibilities must be addressed by the district court.

20   E.   Relief and Named Defendants

21              The district court expressed doubts as to whether it

22   had the power to order the requested relief in light of the

23   Resort's ownership structure and the defendants' explicit lack of

24   authority to modify certain individual units at the Resort.     See

25   Roberts, 445 F. Supp. 2d at 246-47.     The plaintiffs in this case

26   named as defendants the cooperative corporations, the managing

                                        33
1    authority, and some (but not all) unit owners, but they did not

2    identify particular units for modification or identify and serve

3    process on the owners of those units.

4              As an initial matter, we observe that the plaintiffs

5    did properly identify at least some -- and perhaps all -- of the

6    defendants contemplated by the ADA for claims under the ADA.     In

7    enacting the statute, Congress apparently intended that the

8    prohibition against discrimination "appl[y] to any person who

9    owns, leases . . . or operates a place of public accommodation."

10   H.R. Conf. Rep. 101-558, 101st Cong., 2d Sess. (1990) (emphasis

11   added).   Of course, owners and operators of facilities may

12   allocate by lease or contract their relative responsibilities for

13   compliance with the ADA.   See Americans with Disabilities Act

14   Handbook at § 6.02.   And the Department of Justice has provided

15   informal guidance suggesting that the duty to remove barriers

16   depends on who has legal authority to make alterations, "which is

17   generally determined by the contractual agreement . . . ."    Id.

18   (quoting U.S. Dep't of Justice, Questions and Answers (rev. Sept.

19   1992)).

20             We cannot say, however, based on the existing record

21   and factual findings, whether, in this case, the plaintiffs'

22   claims for relief would fail based on the named defendants'

23   potential inability to comply with orders of the district court

24   directing modifications.   Perhaps because the court concluded

25   that no relief was available in the first place, it made no

26   findings regarding the cooperative corporations' ability to

                                     34
1    solicit individual unit owners to volunteer their units for

2    renovation on a distributed cost basis or with compensation, to

3    purchase specific units as corporate property as they come onto

4    the market, for corporate owners of second-floor units to swap

5    with owners of first-floor units, or to buy first floor units

6    when they come available, or for the unit owners to take any

7    other action to cause the Resort to become ADA-compliant.

8              If the district court, on remand, concludes that the

9    plaintiffs are entitled to some or all of the relief they have

10   sought, the court should, of course, inquire whether the named

11   defendants can comply with an order to provide that relief.

12   Perhaps the defendants may do so unilaterally; perhaps they may

13   be able to solicit the assistance of individual unit owners.    As

14   we have already noted, section 12183 requires, with respect to

15   altered facilities, that all feasible efforts be made toward

16   compliance without regard to cost, and the same requirement would

17   apply to complying with orders for relief pursuant to this

18   provision.   It may well be, then, that the named defendants are

19   able to comply with orders to modify individual units, if

20   required, in light of the defendants' admission that at least

21   thirty units in fact change ownership each year.

22             Only if the district court finds that the named

23   defendants, having exhausted all options, are unable to comply

24   with its orders would it need to consider whether the plaintiffs

25   had failed to identify and serve necessary and indispensable

26   parties (such as individual proprietary tenants) under Fed. R.

                                     35
1   Civ. P. 19.   We offer no view as to whether individual tenants

2   would be proper defendants.    These remain issues for the district

3   court in the first instance.

4                                 CONCLUSION

5             For the foregoing reasons, the judgment of the district

6   court is vacated and the cause remanded for further proceedings.




                                      36
