Last week, the Eleventh Circuit vacated its opinion in the disability discrimination case, Gil v. Winn-Dixie Stores, Inc., No. 17-13467-CC. The court dismissed as moot the appeal involving a legally blind customer’s claim that a Winn-Dixie-operated website’s incompatibility with screen-reader software hindered the customer’s ability to access a “place of public accommodation” and thereby violated Title III of the Americans With Disabilities Act (“ADA”).
In June 2017, a federal district court in the Southern District of Florida found for the plaintiff and entered a three-year injunction requiring Winn-Dixie to improve the accessibility of its website. Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017). The district court further found that the plaintiff, as the prevailing party, was entitled to an award of $99,879.00 in attorney’s fees, though it stayed the execution of that award pending Winn-Dixie’s appeal before the Eleventh Circuit.
Last April, the Eleventh Circuit reversed the district court’s judgment. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021). As a matter of first impression, the Eleventh Circuit held that the definition for “public accommodation” does not extend to websites and instead only includes physical places.
Last week, however, the Eleventh Circuit granted the plaintiff’s petition for re-hearing and vacated the decision because the parties’ dispute was “moot.” Gil v. Winn-Dixie Stores, Inc., __ F. 4th __, 2021 WL 6129128 (11th Cir. Dec. 28, 2021).
Mootness is an important consideration in determining whether a federal court may hear and resolve litigation. Article III of the United States Constitution limits the jurisdiction of federal courts to consideration of “cases” or “controversies,” which must involve active disputes between adversarial parties. When a dispute is no longer active—i.e., it no longer exists or has otherwise been resolved—a federal court must dismiss the litigation as moot. See Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276 (11th Cir. 2004).
Because the injunction expired in 2020, no active dispute existed for the Eleventh Circuit to resolve at the time it entered its April 2021 decision. The Eleventh Circuit, therefore, vacated that opinion and judgment, dismissed Winn-Dixie’s appeal, and remanded the case for the district court to enter an order dismissing it as moot. How the dismissal of the case impacts the plaintiff’s award of $99,879.00 in attorney’s fees remains unclear.
More broadly, the Eleventh Circuit’s order restores the pre-April 2021 status quo within the Circuit regarding the scope of “public accommodations.” Several Courts of Appeal have split on the question of whether “public accommodations” under Title III of the ADA extend beyond physical places. For example, the Third, Sixth, and Ninth Circuits have concluded that a “public accommodation” includes only physical places. See Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) (services provided by the lessor of a public accommodation); Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (insurance benefit plan provided by private employer); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) (administrator of employer’s group disability plan). On the other hand, the First and Seventh Circuits have recognized no such limit. See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994) (trade association and its administering trust for health benefit plan); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (medical insurer).
The Eleventh Circuit has now shown an inclination to read Title III’s “public accommodation” provision to exclude non-physical places such as websites, but only time will tell whether the court again has occasion to consider that issue.
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