Robles v. Domino's Pizza, LLC

913 F.3d 898

Guillermo ROBLES, an Individual, Plaintiff-Appellant,

v.DOMINO'S PIZZA, LLC, a Limited Liability Corporation, Defendant-Appellee.

No. 17-55504

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 12, 2018 Pasadena, California

Filed January 15, 2019

Joseph R. Manning (argued) and Michael J. Manning, Manning Law APC, Newport Beach, California, for Plaintiff-Appellant.

Gregory Francis Hurley (argued) and Bradley J. Leimkuhler, Sheppard Mullin Richter & Hampton LLP, Costa Mesa, California, for Defendant-Appellee.

Jessica Paulie Weber (argued) and Eve L. Hill, Brown Goldstein & Levy LLP, Baltimore, Maryland, for Amici Curiae National Federation of the Blind, American Council of the Blind, American Foundation for the Blind, Association of Late Deafened Adults, California Council of the Blind, California Foundation for Independent Living Centers, Disability Rights Advocates, Disability Rights California, Disability Rights Education & Defense Fund, National Association of the Deaf, National Disability Rights Network, National Federation of the Blind of California, Washington Lawyers' Committee for Civil Rights and Urban Affairs, and World Institute on Disability.

Stephanie N. Moot and Carol C. Lumpkin, K&L Gates LLP, Miami, Florida; Martin S. Kaufman, Executive VP and General Counsel, Atlantic Legal Foundation, Harrison, New York; for Amicus Curiae The Atlantic Legal Foundation.

Stephanie Martz, National Retail Federation, Washington, D.C., for Amicus Curiae National Retail Federation.

Kathleen McGuigan and Deborah White, Retail Litigation Center, Inc., Arlington, Virginia, for Amicus Curiae Retail Litigation Center, Inc.

Felicia Watson and Jeffrey B. Augello, National Association of Home Builders of the United States, Washington, D.C., for Amicus Curiae National Association of Home Builders of the United States.

Janet Galeria and Warren Postman, U.S. Chamber Litigation Center, Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States of America.

Angelo I. Amador, Restaurant Law Center, Washington, D.C., for Amicus Curiae Restaurant Law Center.

Elizabeth Milito, Karen R. Harned, National Federation of Independent Business Small Business Legal Center, Washington, D.C., for Amicus Curiae National Federation of Independent Business Small Business Legal Center.

Christine Mott, International Council of Shopping Centers, New York, New York, for Amicus Curiae International Council of Shopping Centers.

Justin Vermuth, American Resort Development Association, Washington, D.C., for Amicus Curiae American Resort Development Association.

Mary Caroline Miller, Kevin W. Shaughnessy, and Joyce Ackerbaum Cox, Baker & Hostetler LLP, Orlando, Florida; John B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio; for Amici Curiae Restaurant Law Center, American Bankers Association, American Hotel & Lodging Association, American Resort Development Association, Asian American Hotel Owners Association, Chamber of Commerce of the United States of America, International Council of Shopping Centers, International Franchise Association, National Association of Convenience Stores, National Association of Home Builders of the United States, National Association of Realtors, National Association of Theater Owners, National Federation of Independent Business Small Business Legal Center, National Multifamily Housing Council, National Retail Federation, Retail Litigation Center.

Before: Paul J. Watford and John B. Owens, Circuit Judges, and Jennifer G. Zipps,^* District Judge.

OWENS, Circuit Judge:

Plaintiff Guillermo Robles, a blind man, appeals from the district court's dismissal of his complaint alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, and California's Unruh Civil Rights Act (UCRA), California Civil Code § 51. Robles alleged that Defendant Domino's Pizza, LLC, (Domino's) failed to design, construct, maintain, and operate its website and mobile application (app) to be fully accessible to him. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Robles accesses the internet using screen-reading software, which vocalizes visual information on websites. Domino's operates a website and app that allows customers to order pizzas and other products for at-home delivery or in-store pickup, and receive exclusive discounts.

On at least two occasions, Robles unsuccessfully attempted to order online a customized pizza from a nearby Domino's. Robles contends that he could not order the pizza because Domino's failed to design its website and app so his software could read them.

In September 2016, Robles filed this suit seeking damages and injunctive relief based on Domino's failure to "design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable by Mr. Robles and other blind or visually-impaired people," in violation of the ADA and UCRA. Robles sought a "permanent injunction requiring Defendant to ... comply with [Web Content Accessibility Guidelines (WCAG) 2.0] for its website and Mobile App."¹ Domino's moved for summary judgment on the grounds that (1) the ADA did not cover Domino's online offerings; and (2) applying the ADA to the website or app violated Domino's due process rights. Domino's alternatively invoked the primary jurisdiction doctrine, which permits a court to dismiss a complaint pending the resolution of an issue before an administrative agency with special competence. See Clark v. Time Warner Cable , 523 F.3d 1110, 1114 (9th Cir. 2008) (defining primary jurisdiction doctrine).

The district court first held that Title III of the ADA applied to Domino's website and app. The court highlighted the ADA's "auxiliary aids and services" section, 42 U.S.C. § 12182(b)(2)(A)(iii), which requires that covered entities provide auxiliary aids and services to ensure that individuals with disabilities are not excluded from accessing the services of a "place of public accommodation"—in this case, from using the website or app to order goods from Domino's physical restaurants.

The district court then addressed Domino's argument that applying the ADA to its website and app violated its due process rights because the Department of Justice (DOJ) had failed to provide helpful guidance, despite announcing its intention to do so in 2010.² See Nondiscrimination on the Basis of Disability, 75 Fed. Reg. 43460-01 (July 26, 2010) (issuing Advance Notice of Proposed Rulemaking (ANPRM) to "explor[e] what regulatory guidance [DOJ] can propose to make clear to entities covered by the ADA their obligations to make their Web sites accessible").³

The district court, relying heavily on United States v. AMC Entertainment, Inc. , 549 F.3d 760 (9th Cir. 2008), concluded that imposing the WCAG 2.0 standards on Domino's "without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic ... fl[ew] in the face of due process."⁴ The district court held that DOJ "regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III." In the district court's view, therefore, only the long-awaited regulations from DOJ could cure the due process concerns, so it had no choice but to invoke the primary jurisdiction doctrine. The district court granted Domino's motion to dismiss without prejudice, and this appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court's interpretation and construction of a federal statute—here, the court's application of the ADA to websites and apps. See ASARCO, LLC v. Celanese Chem. Co. , 792 F.3d 1203, 1208 (9th Cir. 2015). As the constitutionality of a statute or regulation is a question of law, we also review de novo the district court's holding that applying the ADA to websites and apps would violate due process. See Az. Libertarian Party v. Reagan , 798 F.3d 723, 728 (9th Cir. 2015) ; Preminger v. Peake , 552 F.3d 757, 765 n.7 (9th Cir. 2008). Finally, we review de novo the court's invocation of the primary jurisdiction doctrine. See Reid v. Johnson & Johnson , 780 F.3d 952, 958 (9th Cir. 2015).

III. DISCUSSION

This appeal presents three questions. First, whether the ADA applies to Domino's website and app. Second, if so, whether that holding raises due process concerns. Third, whether a federal court should invoke the primary jurisdiction doctrine because DOJ has failed to provide meaningful guidance on how to make websites and apps comply with the ADA.

A. The ADA's Application to Domino's Website and App

The ADA "as a whole is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ " Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 589, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (quoting 42 U.S.C. § 12101(b)(1) ). Title III of the ADA advances that goal by providing that "[n]o 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." 42 U.S.C. § 12182(a). We agree with the district court that the ADA applies to Domino's website and app.

The ADA expressly provides that a place of public accommodation, like Domino's, engages in unlawful discrimination if it fails to "take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services."⁵ Id. § 12182(b)(2)(A)(iii). DOJ regulations require that a public accommodation "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with...