The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SABRINA SIEGEL, CARLA HERVERT,
FRED HERVERT, JUDITY GOLDSMITH,
INGRID EDSTROM, CYNTHIA ALLEN,
ELIZABETH DICKEY, DR. ANITA BROWNING,
DENNIS HOERNER, WILLIAM ZWICKER,
VICTOR ODLIVAK, ALISON PRICE, SOFIA
DUMITRU, WANDA MECK, LISA-MARIE
DIVINCENT, JAMIE WHITNEY, MELINDA
STONE, MARSHALL SANDERS, BEKKI
BRUCKNER, JOSHUA KORN, TAD PATTERSON, Case No. 6:24-cv-00790-MK
ALAN STEIN, and STAR GATE AWARENESS
RESOURCE, ORDER AND OPINION
Plaintiffs,
v.
EUGENE WATER & ELECTRIC BOARD, and
FRANK LAWSON, in his personal capacity
Defendants.
MCSHANE, Judge:
Plaintiffs bring this action against a municipal utility and its manager. Plaintiffs seek a
temporary restraining order (“TRO”) which would prevent Defendants from replacing analog
metering devices with digital smart meters and prohibit Defendants from shutting off the power to
any customers who object to the smart meters. Second Mot. for Temporary Restraining Order
(“TRO Mot.”) 3, ECF No. 12. One group of plaintiffs (the “ADA Plaintiffs”) seek relief under
1 — OPINION AND ORDER
Title III of the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing
Amendments Act (“FFHA”), while a second group of plaintiffs (the “Avoiding Danger Plaintiffs”)
express concern about the privacy risks associated with smart meters and assert constitutional due
process and tort claims.1 Id. at 4, 5, 8. Because neither group of Plaintiffs have shown a likelihood
of success on the merits, Plaintiffs’ Motion is DENIED.
BACKGROUND
Defendant Eugene Water & Electric Board (“EWEB”) provides electricity and water to
approximately 200,000 customers in the Eugene, Oregon metropolitan area. Am. Compl. ¶ 23,
ECF No. 11. In 2013, Defendant approved a plan to substitute its traditional analog meters with
digital “smart meters.” Defs.’ Resp. 14, ECF No. 14. According to Defendants, the electric
metering is conducted for utility operational purposes only, including to accurately record a
customer’s cumulative electric usage. Rowe Decl. ¶ 5, ECF No. 19. Defendants also state they can
configure the digital meters to not broadcast consumption information. Defs.’ Resp. 15.
Plaintiffs are twenty-two2 of Defendants’ customers who object to the instillation of smart
meters. On May 24, 2024, Plaintiffs filed this TRO requesting that the Court issue an order: (1)
prohibiting Defendant from cutting power to any customer who wanted to retain their analog
meter; (2) requiring Defendant to restore electric services to three plaintiffs who refuse to replace
their analog meters with smart meters; (3) requiring Defendant to adjust the smart meter on the
property of a plaintiff who had previously threatened to fight one of Defendants’ employees; and
(4) requiring Defendants to show cause why a preliminary injunction should not be entered. TRO
1 It is not clear from the Amended Complaint and TRO Motion which plaintiffs fall into which group, or if individual
plaintiffs can be part of both the ADA Plaintiffs and Avoiding Danger Plaintiffs groups.
2 A twenty-third plaintiff, Star Gate Awareness Resources, is a bookstore owned by Plaintiff Stein, and similarly
receives its power from Defendants.
2 – OPINION AND ORDER
Mot 3; see also Pls.’ Reply 22, ECF No. 23. The Court reserved ruling on Plaintiffs’ Motion until
Defendants had an opportunity to respond. Scheduling Order, ECF No. 13.
STANDARDS
The standard for a preliminary injunction is a high one: “it may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, 555
U.S. 7, 22 (2008). A party seeking a preliminary injunction must establish four factors: “[(1)] that
he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction
is in the public interest.” Id. at 20. The legal standards applicable to TRO’s and preliminary
injunctions are “substantially identical.” Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and
Co., Inc., 240 F.3d 832, 839 n.7 (9thCir. 2001). A court cannot award a preliminary injunction
based on a mere possibility of irreparable harm. Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011).
DISCUSSION
I. Plaintiffs’ Motion is Substantively a Motion for Preliminary Injunction
As a threshold matter, the Court construes Plaintiffs’ Motion for Temporary Restraining
Order as a motion for preliminary injunction. While both forms of injunctive relief require courts
to look the same factors in their analyses, TRO’s and preliminary injunctions serve fundamentally
different purposes. See Stuhlbarg, 240 F.3d at 839 n.7. “The purpose of a temporary restraining
order is to preserve an existing situation in status quo until the court has an opportunity to pass
upon the merits of the demand for a preliminary injunction.” See W. Watersheds Project v.
Bernhardt, 391 F. Supp. 3d 1002, 1008–09 (D. Or. 2009) (citations and quotations omitted)
(cleaned up). On the other hand, “[t]he purpose of a preliminary injunction is to preserve the status
3 – OPINION AND ORDER
quo and the rights of the parties until a final judgment on the merits can be rendered[.]” Arizona
Recovery Hous. Ass’n v. Arizona Dep’t of Health Servs., 462 F. Supp. 3d 990, 996 (D. Ariz. 2020).
The respective durations of TRO’s and preliminary injunction support their distinctive
functions. “Preliminary injunctions remain in force throughout the litigation, whereas provisional
temporary restraining orders are traditionally more limited in time – ‘restricted to serving their
underlying purpose of preserving the status quo and preventing irreparable harm just so long as is
necessary and no longer.’” See Alliance for Wild Rockies v. Higgins, 690 F. Supp. 3d 1177, 1186
(D. Idaho 2023) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438–39 (1974)).
Plaintiffs’ TRO Motion, despite its title, is substantively a request for a preliminary
injunction. At various points in their Motion, Plaintiffs appear to request relief that would extend
throughout litigation:
“The Court should enter an order for a broader temporary restraining order and
order EWEB to show cause why a preliminary injunction order should not be
entered. Specifically, the Court should enter a TRO that: (1) prohibits EWEB from
cutting power to any customer who seeks to retain their analog meter . . .”
***
“EWEB’s behavior shows that a TRO protecting a single person is insufficient to
deter EWEB from cutting off power of other similarly situated people. . . . EWEB
did not get the hint that cutting off power to disabled people is inpermissible [sic].
Hence Plaintiffs request a temporary restraining order prohibiting EWEB from
cutting off the power for anyone who wants to keep their analog meter.”
***
“EWEB’s overall policy needs to be halted so that the Court can review it, without
responding to emergencies every week.”
***
“What about EWEB’s other customers who do not know about this case and who
are receiving the same threats from EWEB? . . . [T]he Court should issue a
preliminary injunction prohibiting EWEB from cutting off power to any
customer on the grounds that they are refusing a smart meter.”
TRO Mot. 3, 12, 13, 21 (emphasis added)
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In its May 29, 2023 Order, the Court deferred ruling on Plaintiffs’ Motion until it could
consider Defendants’ Response. Scheduling Order, ECF No. 13. Having received Defendants’
Response, Plaintiffs’ Motion is no longer ex parte—an element unique to TRO’s but not to
preliminary injunctions. See Fed. R. Civ. P. 65. Because the Court’s review of TRO motions and
preliminary injunction motions are substantially similar, the Court will construe Plaintiffs’ Motion
as a motion for preliminary injunction.
II. The ADA Plaintiffs Have Not Shown a Likelihood of Success on the Merits
The first factor under Winter requires Plaintiffs to demonstrate a likelihood of success on
the merits. 555 U.S. at 20. Title II of the ADA prohibits disability discrimination as it relates to
public services. The statute specifically 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.” 42 U.S.C. § 12132. Under Title II, “[a] public entity shall make reasonable
accommodations to policies, practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of a disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of the service, program, or
activity.” 28 § C.F.R. 35.130(b)(7)(i).
To succeed on a Title II claim, a plaintiff must show that: (1) he is a qualified individual
with a disability, (2) he was excluded from participation in or otherwise discriminated against with
regard to a public entity’s services, programs, or activities, and (3) such exclusion or discrimination
was by reason of his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). The
“failure to provide [a] reasonable accommodation can constitute discrimination.” Updike v.
Multnomah Cnty., 870 F.3d 939, 951 (9th Cir. 2017) (cleaned up). However, the ADA does not
5 – OPINION AND ORDER
mandate that a public entity fulfill every accommodation requested by a disabled individual;
instead, it only mandates reasonable accommodations. See Selene v. Legislature of Idaho, 514 F.
Supp. 3d 1243, 1256 (D. Idaho 2021) (citing Zivkovic v. S. California Edison Co., 302 F.3d 1080,
1089 (9th Cir. 2002)).
Immediately, the first element is at issue; i.e., whether the ADA Plaintiffs are qualified
individuals with a disability. Under the ADA, the term “disability” means (A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. §
12102.3 The ADA Plaintiff allege that their hypersensitivity to electromagnetic radiation qualifies
them as disabled under both the ADA and the FHAA. See TRO Mot. 6. However, courts have
repeatedly disagreed, finding that electromagnetic sensitive is not a cognizable disability under
those laws. See e.g. Barcello v. Welch, No. 1:23-CV-137-MOC-WCM, 2023 WL 6307309, at *4
(W.D.N.C. Sept. 27, 2023); Hirmiz v. New Harrison Hotel Corp., 865 F.3d 475, 476 (7th Cir.
2017); G v. Fay Sch., Inc. by & through its Bd. of Trustees, 282 F. Supp. 3d 381, 396–97 (D. Mass.
2017).
Plaintiffs bear the burden of demonstrating a qualifying disability, yet they instead ask the
Court to accept conclusory statements asserting the existence of a disability. See Am. Compl. ¶ 42
(“Other Plaintiffs also suffer impairment of major life activities similar to Siegel.”). And while the
TRO Motion states that “[t]he ADA Plaintiffs have a handicap[,]” the Court is unpersuaded.
The ADA Plaintiffs have also failed to establish the third element of their ADA claims—a
causal connection between the smart meters and their asserted disabilities. As Defendants point
3 The definition of “handicap” under the FHAA is substantially identical to the definition of “disability” under the
ADA. See 42 U.S.C. § 3602(h).
6 – OPINION AND ORDER
out, the ADA Plaintiffs only state a “concern for the possibility that an unspecified effect may
result if a transmitting digital meter is placed on their homes[.]” Defs.’ Resp. 11 (emphasis in
original). The Court agrees with Plaintiffs that “[a]ccommodation under the disability statutes is
not a one-size-fits-all answer.” TRO Mot. 7. But as the Supreme Court held in Winter, “[a]
preliminary injunction is an extraordinary remedy never awarded as of right.” 555 U.S. at 24.
Even assuming the ADA Plaintiffs could establish that they each have a qualified disability, the
Court is not prepared to issue preliminary injunctive relief based on mere speculation. As this is
not a decision on the merits, Plaintiffs will have the opportunity to supplement and complete the
record during the discovery process.
III. The Avoiding Danger Plaintiffs Have Not Shown a Likelihood of Success on the
Merits
The Avoiding Danger Plaintiffs similarly fail to demonstrate a likelihood of success on the
merits. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Fourteenth
Amendment’s Due Process Clause “specifically protects those fundamental rights and liberties
which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (internal quotations and citations
omitted).
The Court understands the Avoid Danger Plaintiffs’ claims to be based on their asserted
right to privacy. See Am. Compl. ¶ 52 (“Through Smart Meters, utility companies and all their
partners will be inside everyone’s home, constantly observing, evaluating, and recording
individuals and their families, what they’re using and doing. [sic] It is as if EWEB installed video
7 – OPINION AND ORDER
cameras in every room of every building, watching and recording, down to the ‘bad flapper valve
in the toilet.’”) But before the Avoiding Danger Plaintiffs can assert that their privacy rights have
been violated, they need to have interests protected by the Constitution.
“The Supreme Court has recognized that one aspect of the liberty protected by the Due
Process Clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee of
certain areas or zones of privacy.” Parents for Priv. v. Barr, 949 F.3d 1210, 1222 (9th Cir. 2020)
(internal quotations marks and citations omitted). “This right includes at least two constitutionally
protected privacy interests: the right to control the disclosure of sensitive information and the right
to independence [in] making certain kinds of important decisions.” Id. (quotation marks omitted).
It is well-settled that a person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties. See United States v. Mayer, 503 F.3d 740, 750 (9th Cir.
2007) (citing Smith v. Maryland, 442 U.S. 735, 743–44 (1979)). Courts have repeatedly found that
utility records—and specifically power records—do not contain information in which individuals
possess a reasonable expectation of privacy. See e.g. United States v. Hamilton, 434 F. Supp. 2d
974, 979–80 (D. Or. 2006); Booker v. Dominion Virginia Pwr., No. 3:09-cv-759, 2010 WL
1848474, at *5 (E.D. Va. May 7, 2010).
The Avoiding Danger Plaintiffs point to Naperville Smart Meter Awareness v. City of
Naperville, a recent case in which the Seventh Circuit held that a city’s collection of energy-
consumption data constituted a search. 900 F.3d 521, 527 (7th Cir. 2018); TRO Mot. 18. Using
Naperville, the Avoiding Danger Plaintiffs contend that they do not “assume the risk of near
constant monitoring by choosing to have electricity in [their] home[s].” TRO Mot. 18. But
Naperville actually weakens Plaintiffs’ argument, as the Naperville court would conclude—in the
very next section—that the data collection at issue was reasonable:
8 – OPINION AND ORDER
Of course, even a lessened privacy interest must be weighed against the
government's interest in the data collection. That interest is substantial in this case.
Indeed, the modernization of the electrical grid is a priority for both Naperville and
the Federal Government.
Smart meters play a crucial role in this transition. For instance, they allow utilities
to restore service more quickly when power goes out precisely because they provide
energy-consumption data at regular intervals. The meters also permit utilities to
offer time-based pricing, an innovation which reduces strain on the grid by
encouraging consumers to shift usage away from peak demand periods. In addition,
smart meters reduce utilities’ labor costs because home visits are needed less
frequently.
With these benefits stacked together, the government's interest in smart meters is
significant. Smart meters allow utilities to reduce costs, provide cheaper power to
consumers, encourage energy efficiency, and increase grid stability. We hold that
these interests render the city's search reasonable, where the search is unrelated to
law enforcement, is minimally invasive, and presents little risk of corollary criminal
consequences.
Id. at 528–29.
Plaintiffs have not provided—and the Court was unable to find—any caselaw recognizing
the Avoiding Danger Plaintiffs’ purported right to privacy concerning electrical usage records.
Finding no reason to break from clearly established precedent, the Court will not judicially create
a new privacy interest. The Court is not convinced that the Avoiding Danger Plaintiffs’ can present
a meritorious claim without a constitutionally protected right to be violated.
CONCLUSION
Because neither group of Plaintiffs have shown a likelihood of success on the merits,
Plaintiffs’ Motion (ECF No. 12) is DENIED.
IT IS SO ORDERED.
DATED this 30th day of July, 2024.
_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge
9 – OPINION AND ORDER