Legal Update: May 2021

More Thoughts on Winn-Dixie

Wow, if the country were tilted, it’s clear where all the nuts would roll—Florida and the 11^th Circuit in the southeast corner of the country! I’ve been thinking about the Eleventh Circuit decision in Gil v. Winn-Dixie for some time and I’ve decided that the court’s approach in that case is best characterized as creating a whole new test for website accessibility. At first, I wanted to call it “Nexus Plus” but that doesn’t quite capture it. Instead, I think that the Eleventh Circuit’s articulation is the “Gateway” standard. Based on the logic of the court’s decision, unless the website acts as a gateway to the goods and services available at a physical place of public accommodation, courts in the Eleventh Circuit won’t not entertain claims that an inaccessible website violates Title III of the ADA. Consider what happened in Winn-Dixie. First, Mr. Gil couldn’t use the online pharmacy and had to wait twice as long waiting for his prescriptions. Nope, the court says, he has no standing to sue. What about the fact that Mr. Gil couldn’t access online coupons and had to rely on good Samaritans at the store to assist him with physical coupons? Nope, still no standing. In other words, unless the website either (1) served as a gateway to accessing a physical place of public accommodation or (2) provided some good or service completely unavailable when Mr. Gil visited a Winn-Dixie store, he had no standing to sue. For instance, if the only way that Mr. Gil could buy groceries from Winn-Dixie was by first reserving an appointment online but couldn’t do so, that might enable Mr. Gil to meet the court’s high bar for standing. Or maybe even if the coupons that Mr. Gil used in the store were ONLY available online, then maybe even that would be enough for the 11^th Circuit’s “gateway” standard. And, when you consider the facts in Rendon v. Valleycrest Productions (where the court held that an inaccessible telephone screening process violated the ADA because it prevented deaf contestant from participating on the game show, “Who Wants to be a Mllionaire?”), Winn-Dixie was really the narrowest possible interpretation of Rendon that the court could have given to that case.

Sierra v. City of Hallandale Beach

So just when you may have thought that the Eleventh Circuit was a jurisdiction for judges with the disposition of Attila the Hun, they surprise you. I often cite the Sierra v. City of Hallandale Beach line of cases for a number of different legal precedence (such as whether the FCC has primary jurisdiction over CVAA claims or whether a local government can be liable for the inaccessibility of its social media content), but just this last week they issued yet another opinion in the case concerning a completely different issue. Specifically, the court addressed whether Eddie Sierra had standing to sue when he filed a complaint against the city for not providing captioned videos of important city events on its website. The court concluded that Mr. Sierra had standing to sue and reversed the lower court’s decision because the district court improperly interpreted another case, Price v. City of Ocala, 375 F. Supp. 3d 1264 (M.D. Fla. 2019) based on the nature of the remedy sought. Now I can’t really say whether that distinction or the Price decision make sense, but it doesn’t surprise me at all that a Federal appellate court would say that a city violated Title II of the ADA when it fails to provide captioning on the videos it posts on its website.

It surprised me was that such a rational decision came on the heels of that court’s bizarre decision in Gil v. Winn-Dixie, where the 11^th Circuit decided to become such a outlier in its hostility to people with disabilities. But another surprising part of the Sierra decision was the strange and rambling concurring opinion by Judge Kevin Newsom. While Federal court judges usually try to stay within the issues immediately before the court, Judge Newsom’s concurring opinion wandered off into an ethereal discussion of the relationship between the Executive and Judicial branches of the Federal government-- even though there was no question about whether Congress could create a private right of action for Mr. Sierra and other people with disabilities. As I read Judge Newsom’s opinion, I kept thinking that his analysis might better be served in a law review article instead of a concurring opinion.

But it’s not like I wasn’t forewarned. At the beginning of his opinion, Judge Newsom writes.

I agree that Eddie Sierra has suffered an "injury in fact" as that phrase has come to be understood in Article III standing doctrine. Accordingly, I join the Court's opinion. I write separately to explain why, following several pretty unsatisfying encounters with it, I've come to doubt that current standing doctrine—and especially its injury-in-fact requirement—is properly grounded in the Constitution's text and history, coherent in theory, or workable in practice. I'd like to propose a different way of thinking about things, in two parts. First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however—and it's a considerable "however"—Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large. It has taken me a while to come to this conclusion, and unpacking it will likewise take some doing.

Sierra v. City of Hallandale Beach, 2021 U.S. App. LEXIS 13473 *9 (11^th Cir. 2021). When a judge starts an opinion like that, you know it’s time to get the popcorn going because you’re in for an interesting show. The approximately 15,000 words in Judge Newsom’s opinion can be boiled down into his assertion that the standing to sue doctrine doesn’t work because the tests are unusable and unpredictable. Instead, a plaintiff can sue as long as he has a legal right created either by common law or by statute. Congress, however, can’t create a private right to sue if the goal is to protect a public interest. In general, I don’t disagree with that 53-word summary. Between Winn-Dixie (Judge Branch) and this concurring opinion in Hallandale Beach (Judge Newsom), we have two really odd opinions by two judges from the same court and who were both appointed in 2017. We may as well settle in for some more weird opinions coming out of the Eleventh Circuit because it’s clear they will both be on the bench for some time.