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    Disabled Americans v. Ferries Del Caribe, 405 F.3d 60, 1st Cir. (2005)

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    This document summarizes a court case regarding a disabled individual's lawsuit against a cruise line under the Americans with Disabilities Act (ADA). The individual alleged that he experienced discrimination due to barriers preventing accessibility aboard the cruise line's vessel and at its land-based facilities. The district court dismissed the complaint, finding that ADA claims against cruise ships were improper given the lack of specific ADA regulations for cruise ships. However, the appeals court found that the individual had standing to sue and that the district court erred in dismissing claims related to land-based facilities. The appeals court instructed the district court to defer further proceedings until the Supreme Court ruled on a pending case regarding whether the ADA applies to foreign-flagged cruise ships.

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    Disabled Americans v. Ferries Del Caribe, 405 F.3d 60, 1st Cir. (2005)

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    This document summarizes a court case regarding a disabled individual's lawsuit against a cruise line under the Americans with Disabilities Act (ADA). The individual alleged that he experienced discrimination due to barriers preventing accessibility aboard the cruise line's vessel and at its land-based facilities. The district court dismissed the complaint, finding that ADA claims against cruise ships were improper given the lack of specific ADA regulations for cruise ships. However, the appeals court found that the individual had standing to sue and that the district court erred in dismissing claims related to land-based facilities. The appeals court instructed the district court to defer further proceedings until the Supreme Court ruled on a pending case regarding whether the ADA applies to foreign-flagged cruise ships.

    Original Description:

    Filed: 2005-04-26 Precedential Status: Precedential Citations: 405 F.3d 60 Docket: 04-2086

    Original Title

    Disabled Americans v. Ferries del Caribe, 405 F.3d 60, 1st Cir. (2005)

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    This document summarizes a court case regarding a disabled individual's lawsuit against a cruise line under the Americans with Disabilities Act (ADA). The individual alleged that he experienced discrimination due to barriers preventing accessibility aboard the cruise line's vessel and at its land-based facilities. The district court dismissed the complaint, finding that ADA claims against cruise ships were improper given the lack of specific ADA regulations for cruise ships. However, the appeals court found that the individual had standing to sue and that the district court erred in dismissing claims related to land-based facilities. The appeals court instructed the district court to defer further proceedings until the Supreme Court ruled on a pending case regarding whether the ADA applies to foreign-flagged cruise ships.

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    28 views6 pages

    Disabled Americans v. Ferries Del Caribe, 405 F.3d 60, 1st Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case regarding a disabled individual's lawsuit against a cruise line under the Americans with Disabilities Act (ADA). The individual alleged that he experienced discrimination due to barriers preventing accessibility aboard the cruise line's vessel and at its land-based facilities. The district court dismissed the complaint, finding that ADA claims against cruise ships were improper given the lack of specific ADA regulations for cruise ships. However, the appeals court found that the individual had standing to sue and that the district court erred in dismissing claims related to land-based facilities. The appeals court instructed the district court to defer further proceedings until the Supreme Court ruled on a pending case regarding whether the ADA applies to foreign-flagged cruise ships.

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    of 6

    405 F.

    3d 60

    DISABLED AMERICANS FOR EQUAL ACCESS, INC.,


    Plaintiff,
    Eduardo Umpierre, Plaintiff, Appellant,
    v.
    FERRIES DEL CARIBE, INC., Defendant, Appellee.
    No. 04-2086.

    United States Court of Appeals, First Circuit.


    Heard March 10, 2005.
    Decided April 26, 2005.

    COPYRIGHT MATERIAL OMITTED Lorenzo Palomares Starbuck,


    with whom Lorenzo J. Palomares, P.S.C., Lawrence J. McGuinness,
    Lawrence J. McGuinness, P.A., Ian T. Kravitz, William D. Tucker, and
    Law Offices of William D. Tucker, P.A., were on brief, for appellant.
    Dora M. Peagarcano, with whom McConnell Valds was on brief, for
    appellee.
    Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and
    LIPEZ, Circuit Judge.
    LIPEZ, Circuit Judge.

    In July 2003, Plaintiff-Appellant Eduardo Umpierre, who is wheelchair-bound,


    and Plaintiff Disabled Americans for Equal Access, Inc., on behalf of its
    members,1 filed an amended complaint against Defendant-Appellee Ferries del
    Caribe, Inc. ("Ferries") seeking injunctive relief, attorney's fees, and costs for
    violations of Title III of the Americans with Disabilities Act of 1990 as
    amended ("ADA"), 42 U.S.C. 12181-89, and a subset of its implementing
    regulations, 28 C.F.R. 36.302-305. Specifically, the complaint alleged that:
    • Ferries operates a cruise vessel subject to the mandates of Title III
    that govern public accommodations, see 42 U.S.C. 12182(a), and public
    transportation provided by a private entity, see 42 U.S.C. 12184(a);
    • Umpierre was subjected to discrimination and is likely to suffer

    • Umpierre was subjected to discrimination and is likely to suffer


    discrimination in the future through lack of access to "full and equal
    enjoyment" of the goods, services, and other privileges available aboard Ferries'
    vessel and at its land-based facilities (for example, because of a lack of ramps
    or accessible restrooms), see 42 U.S.C. 12182(a); and

    • Ferries' failure to remove barriers to accessibility to the extent such


    removal is "readily achievable," 42 U.S.C. 12182(b)(2)(A)(iv), violates Title
    III of the ADA and its implementing regulations. 2

    On August 19, 2003, Ferries filed a motion for summary judgment, followed
    three days later by a motion to dismiss the complaint pursuant to Fed.R.Civ.P.
    12(b)(6).3 On July 14, 2004, the district court granted Ferries' motion to dismiss
    the complaint, holding that "an ADA accessibility claim against cruise ships is
    not proper due to the lack of ADA cruise ship regulations." Disabled
    Americans for Equal Access, Inc. v. Ferries Del Caribe, Inc., 329 F.Supp.2d
    209, 211 (D.P.R.2004).

    Umpierre timely appealed, arguing that the district court improperly based its
    decision on the non-existence of "regulatory guidelines with respect to both new
    construction and barrier removal for cruise ships." Id. at 210 (emphasis
    added). 4 Umpierre points out that he raised no claim under the ADA or its
    regulations regarding the new construction or alteration of public
    accommodations. See 42 U.S.C. 12183(a)(2); 28 C.F.R. Pt. 36, Subpart D.
    Rather, citing policy statements of the Departments of Justice and
    Transportation, he argues that cruise ships are subject to statutory and
    regulatory mandates applicable to all forms of public accommodations and
    public transportation, 42 U.S.C. 12181-89; 28 C.F.R. 36.302-305,
    including requirements for barrier removal, 42 U.S.C. 12182(b)(2)(A)(iv); 28
    C.F.R. 36.304, regardless of whether they are also subject to additional
    regulations governing new construction or alteration under 28 C.F.R. Pt. 36,
    Subpart D.5 Umpierre also argues that the district court improperly dismissed
    his claims relating to Ferries' land-based, non-vessel facilities. Ferries counters
    by arguing that the district court's decision should be affirmed on the merits or,
    in the alternative, that Umpierre lacks standing to bring his claims. Ferries also
    raises the argument for the first time on appeal that even if Umpierre otherwise
    states a claim, Title III of the ADA is inapplicable to foreign-flagged ships,
    such as its cruise vessel.

    We review the dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) de


    novo,"accept[ing] as true the factual allegations of the complaint, constru[ing]
    all reasonable inferences therefrom in favor of the plaintiffs, and determin[ing]

    whether the complaint, so read, limns facts sufficient to justify recovery on any
    cognizable theory of the case." Beddall v. State St. Bank & Trust Co., 137 F.3d
    12, 16 (1st Cir.1998).
    7

    We first address Ferries' assertion that Umpierre lacks standing because "it is
    impossible to experience discrimination covered by the ADA without traveling
    aboard [Ferries' vessel]." "[T]he irreducible constitutional minimum of
    standing" includes the requirement that the plaintiff have suffered an "injury in
    fact" that is "actual or imminent." Lujan v. Defenders of Wildlife, 504 U.S. 555,
    560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and
    citations omitted). In the context of Title III of the ADA, a plaintiff generally
    must "show a real and immediate threat that a particular (illegal) barrier will
    cause future harm." Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st
    Cir.2003) (explaining that this standard "has been adapted from generic
    Supreme Court precedents discussing whether a plaintiff has standing to protest
    a particular injury"). "[A] disabled individual who is currently deterred from
    patronizing a public accommodation due to a defendant's failure to comply with
    the ADA" and "who is threatened with harm in the future because of existing or
    imminently threatened noncompliance with the ADA" suffers actual or
    imminent harm sufficient to confer standing. Pickern v. Holiday Quality Foods,
    Inc., 293 F.3d 1133, 1138 (9th Cir.2002).
    Umpierre alleges in his complaint that he

    visited [Ferries'] vessel on several occasions in 2001, 2002[,] and 2003, and at
    that time was subjected to discrimination... due to the existence of various
    barriers to accessibility at Defendant's place of public accommodation and
    aboard Defendant's vessel. Plaintiff intends to return to the Defendant's place of
    public accommodation and cruise vessel to avail himself of the goods and
    services offered therein.

    Furthermore, Umpierre alleges that the barriers to accessibility "have


    effectively denied and/or diminished Plaintiff's ability to visit and/or use the
    property and have endangered Plaintiff's safety and the safety of other disabled
    persons who also visit and/or may want to visit the property." Viewing the
    facts alleged in Umpierre's complaint as true, as we must when reviewing a
    Rule 12(b)(6) dismissal,6 we conclude that Umpierre has alleged "a real and
    immediate threat" of discrimination by Ferries sufficient to confer standing to
    sue. Dudley, 333 F.3d at 306. 7

    10

    Next, Ferries advances no argument that its land-based facilities are exempt

    from the statutory and regulatory mandates of the ADA; it argues only that it
    maintains no land-based facilities. Resolution of this factual dispute awaits the
    development of a record on remand. Taking the allegations in the complaint as
    true, Umpierre states a claim for relief under Title III of the ADA and its
    implementing regulations with respect to Ferries' land-based facilities.
    11

    We turn, then, to Ferries' argument that Title III of the ADA does not apply to
    foreign-flagged ships. Ordinarily, we treat legal theories raised for the first time
    on appeal as waived. United States v. Slade, 980 F.2d 27, 30 (1st Cir.1992) ("It
    is a bedrock rule that when a party has not presented an argument to the district
    court, [he] may not unveil it in the court of appeals."). Nevertheless, we take
    judicial notice of the fact that the Supreme Court recently heard oral argument
    on the precise question whether Title III of the ADA applies to foreign-flagged
    cruise ships, and that a decision by the Supreme Court is pending. Spector v.
    Norwegian Cruise Line Ltd., No. 03-1388, 2005 WL 578842 (S.Ct. argued Feb.
    28, 2005). On remand, the district court will have to apply that decision of the
    Supreme Court when it is rendered. Therefore, we instruct the district court to
    defer further proceedings until the Supreme Court's decision in Spector is
    available. The district court shall then permit development of the record, if
    consistent with the Supreme Court's holding, on the factual issue of whether
    Ferries operates a foreign-flagged cruise vessel.

    12

    Finally, we note that the district court appears to have treated Umpierre's
    vessel-related claims as alleging only violations of regulations governing the
    new construction or alteration of cruise ships specifically. The district court
    correctly noted that no such regulations currently exist. See Spector v.
    Norwegian Cruise Line Ltd., 356 F.3d 641, 650 n. 10 (5th Cir.), cert. granted,
    ___ U.S. ___, 125 S.Ct. 26, 159 L.Ed.2d 856 (2004) ("Amazingly, now more
    than a decade since the ADA's passage, [the Departments of Justice and
    Transportation] have yet to issue regulations specific to cruise ships.").
    However, Umpierre's complaint makes no allegations relating to new
    construction or alteration. Instead, Umpierre alleges violations of the statutory
    provisions of the ADA and its implementing regulations that require removal of
    existing barriers by all public accommodations and public transportation apart
    from regulations that may govern any new construction or alteration. Therefore,
    if the legal or factual resolution of the foreign-flagged ship issue does not
    preclude application of Title III to Ferries' cruise vessel, the district court
    should also consider on remand whether Umpierre's vessel-based statutory and
    regulatory claims under 42 U.S.C. 12181-89 and 28 C.F.R. 36.302-305
    may proceed despite the absence of a separate category of regulations
    governing the new construction and alteration of cruise ships. See, e.g., Stevens
    v. Premier Cruises, Inc., 215 F.3d 1237, 1241 n. 6 (11th Cir.2000) (per curiam)

    (under plain language of the ADA, "those parts of a cruise ship which fall
    within the statutory enumeration of public accommodations are themselves
    public accommodations for the purposes of Title III," and Department of
    Justice's interpretation of Title III reaches the same conclusion).
    13

    The decision of the district court dismissing the complaint with prejudice is
    vacated, and this case is remanded, for further proceedings consistent with this
    opinion. Costs to appellant.

    Notes:
    1

    Plaintiff Disabled Americans for Equal Access, Inc., voluntarily dismissed its
    complaint against Ferries on behalf of its members and is no longer a party to
    the action or the appeal

    42 U.S.C. 12182(b)(2)(A)(iv) prohibits the "failure to remove architectural


    barriers ... in existing facilities, and transportation barriers in existing vehicles
    and rail passenger cars used by an establishment for transporting individuals...,
    where such removal is readily achievable." 42 U.S.C. 12181(9) defines
    "readily achievable" as "easily accomplishable and able to be carried out
    without much difficulty or expense." If removal of barriers is not "readily
    achievable," 42 U.S.C. 12182(b)(2)(A)(v) requires delivery of goods and
    services by alternate meansSee also 28 C.F.R. 36.305.

    The record contains no explanation of the reason for this unusual motion
    practice

    While the district court explicitly mentioned regulations governing only "new
    construction" and "barrier removal," we note that 28 C.F.R. Pt. 36, Subpart D,
    which sets forth regulations governing new construction by public
    accommodations, also includes regulations for the "alteration" of public
    accommodations

    28 C.F.R. 36.304 "requires the removal of architectural barriers ... in existing


    facilities, where such removal is readily achievable." 28 C.F.R. Pt. 36, App. B
    at 700. By contrast, the regulations contained in 28 C.F.R. Pt. 36, Subpart D,
    which govern new construction and alterations, "do[ ] not require alterations;
    [they] simply provide[ ] that when alterations are undertaken, they must be
    made in a manner that provides access."Id. at 717. Pursuant to 28 C.F.R.
    36.402(b)(1), "[a]lterations include, but are not limited to, remodeling,
    renovation, rehabilitation, reconstruction, historic restoration, changes or
    rearrangement in structural parts or elements, and changes or rearrangement in

    the plan configuration of walls and full-height partitions."


    6

    Ferries refers us to documents outside the pleadings in an attempt to prove that


    Umpierre's allegations in the complaint are false, thereby ignoring the standard
    of review on appeal from a Rule 12(b)(6) motion to dismiss

    We have recognized the similarity between the standing requirement and the
    standard for determining the availability of a private right of action to enforce
    Title IIIDudley, 333 F.3d at 306. The enforcement provision of Title III states
    that "[n]othing in this section shall require a person with a disability to engage
    in a futile gesture if such person has actual notice that a person or organization
    covered by [Title III] does not intend to comply with its provisions." 42 U.S.C.
    12188(a)(1). Section 12188(a)(1) thus "negates any requirement that a
    disabled person engage in a futile gesture to establish the existence of a
    discriminatory policy or practice" for purposes of bringing suit under Title III.
    Dudley, 333 F.3d at 306. Accordingly, Umpierre need not have engaged in the
    "futile" indeed, allegedly hazardous "gesture," 42 U.S.C. 12188(a)(1),
    of actually traveling aboard Ferries' cruise vessel in order to establish either his
    standing to sue or a private right of action under Title III.

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