By Kristina M. Launey and Minh Vu
Seyfarth Synopsis: The Eleventh Circuit has refused to reconsider its decision to vacate its prior order and the trial court’s judgment because of mootness; meanwhile disability rights advocates demand regulatory action from DOJ on accessible websites.
On March 2, 2022, the Eleventh Circuit Court of Appeals denied Winn-Dixie’s request that the full panel of judges reconsider a single Eleventh Circuit judge’s order dismissing the appeal and district court proceeding as moot. This ends what had been an over-six year saga in one of the most-watched website accessibility cases in the country. Here’s your Cliffs Notes version of this drama:
In June 2017 a Florida federal trial court ruled in favor of the blind plaintiff, finding Winn-Dixie’s inaccessible website violated the ADA, holding Winn-Dixie responsible for third party content on its website, and ordering, among other things, that the website be brought into conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA by December 1, 2017. According to court filings, Winn-Dixie complied with the order.
As we previously reported, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s verdict, finding that (1) the retailer did not violate the ADA because its website is not a place of public accommodation, and (2) the website did not pose an “intangible barrier” to his access to the goods, services, privileges, or advantages of Winn-Dixie’s physical stores.
Just a week later after the Eleventh Circuit’s order, the plaintiff filed a request that an en banc panel of judges reconsider the ruling, arguing that the issues in the case are of exceptional importance and that, among other things, the panel deviated from prior Eleventh Circuit precedent in rejecting the physical “nexus” standard.
At the end of 2021, the Eleventh Circuit dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot. The Court concluded that the entire matter was moot because the injunction had expired while the appeal was pending for over four years.
Winn-Dixie apparently didn’t like this ruling and asked the Eleventh Circuit for rehearing en banc on whether the appeal and underlying case are moot. The Eleventh Circuit has now denied that petition, putting an end to this six year saga unless Winn-Dixie decides to ask the Supreme Court to review the decision. Since the chances of the case being accepted by the Supreme Court are miniscule, this matter is likely over.
How does the Eleventh Circuit’s dismissal of the appeal and vacating of the judgment below affect the legal landscape? The substantive decisions by the district court (often cited by plaintiffs) and the Eleventh Circuit (cited by defendants for a short time) are effectively erased from the case books and can no longer be cited for any purpose. On balance, this is a good outcome for plaintiffs in the Eleventh Circuit because the decision set a very high standard for a violation. The court had concluded, for example, the plaintiff’s inability to order prescriptions online for pick up at the store because of the website’s inaccessibility was not a barrier to his access to Winn-Dixie’s goods and services at the store.
Another Saga Begins (Anew?)
Meanwhile, on February 28, 2022, 181 advocacy groups—some of which had also at one time filed Amicus Briefs in the Winn-Dixie litigation—collectively published a “Joint Letter to Enforce Accessibility Standards” to Kristen Clarke, the head of the US Department of Justice (DOJ) Civil Rights Division which is responsible for enforcing the ADA. The groups—led by the American Council of the Blind, American Federation for the Blind, the National Disability Rights Network, and the National Federation of the Blind—asked DOJ to “adopt enforceable online accessibility standards by the end of the current Administration.”
Cliffs Notes version of the regulatory saga: In 2010, DOJ issued an Advanced Notice of Proposed Rulemaking for Title II and Title III website regulations for state/local governments and public accommodations, respectively. While there was some non-substantive activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA in 2016, the DOJ did not issue a single proposed rule during the entire Obama Administration. In 2017, the Trump DOJ terminated these rulemaking efforts altogether.
The absence of regulations regarding web accessibility has been problematic for public accommodations which were hit with over 7,851 federal website lawsuits from the beginning of 2017 to the end of 2020. This number does not include the numerous lawsuits filed in California state courts or demand letters that never turned into lawsuits. The lack of clear standards has resulted in a body of law with conflicting decisions, and has made it very difficult for businesses to demand accessible websites from their web developers and web content from software vendors. Thoughtful regulations that set clear standards and take into account the challenges businesses face in developing and maintaining accessible websites would be welcome by the business community and advocates alike. While we have seen greater activity by the Biden DOJ in the website accessibility enforcement space recently, it would be surprising to see this Administration issue website accessibility final regulations in fewer than three years. It is not impossible, but also not likely.