Access Now, Inc. v. Southwest Airlines Co., No. 02-16163.

• Decision Date: 24 September 2004
• Docket Number: No. 02-16163.
• Citation: 385 F.3d 1324
• Parties: ACCESS NOW, INC., a Florida non-profit corporation, Robert Gumson, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES COMPANY, a Texas corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

385 F.3d 1324

ACCESS NOW, INC., a Florida non-profit corporation, Robert Gumson, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES COMPANY, a Texas corporation, Defendant-Appellee.

No. 02-16163.

United States Court of Appeals, Eleventh Circuit.

September 24, 2004.

Appeal from the United States District Court for the Southern District of Florida.

Steven Reininger, Rasco, Reininger, Perez & Esquenazi, P.L., Matthew W. Dietz, Coral Gables, FL, Howard R. Behar, Rasco, Reininger, Perez & Esquenazi, Miami, FL, for Plaintiffs-Appellants.

Katherine Renee Schimkat, Carlton Fields, P.A., Miami, FL, Garth Thomas Yearick, Carlton Fields, P.A., West Palm Beach, FL, Sylvia H. Walbolt, Carlton Fields, P.A., St. Petersburg, FL, for Defendant-Appellee.

Linda M. Dardarian, Saperstein, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA, Deirdre K. Mulligan, Jennifer M. Urban, University of Cal. Berkeley, Elaine B. Feingold, Law Offices of Elaine B. Feingold, Berkeley, CA, Katherine Y.K. Cheung, U.S. Foodservice, Columbia, MD, Kathryn S. Zenna, Robbins, Russell, Englert, Orseck & Untereiner, LLP, Washington, DC, for Amici Curiae.

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE^*, Judge.

MARCUS, Circuit Judge:

The plaintiffs, Access Now, Inc. and Robert Gumson, appeal the district court's Rule 12(b)(6) dismissal of their claim against the defendant Southwest Airlines Company ("Southwest") under the Americans with Disabilities Act ("ADA"). The case centers around the inaccessibility of Southwest's web site, Southwest.com, to individuals like Mr. Gumson who are visually impaired and use the Internet through a special software program called a "screen reader." Some features of Southwest.com make it very difficult for the visually impaired to access using a screen reader. The plaintiffs claim that this limitation places Southwest.com in violation of Title III of the ADA, which requires privately operated "places of public accommodation" to be accessible to disabled individuals. Unfortunately, we are unable to reach the merits of this case, however, because none of the issues on appeal are properly before us. Accordingly, we are constrained to dismiss the appeal.

I.

The facts and procedural history in this case, which involves the application of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, to the Internet web site of Southwest Airlines, Southwest.com, are not in dispute. Southwest Airlines, the fourth-largest American domestic air carrier, first created Southwest.com in April 1996, making it the first major American airline to establish a web site. Now, Southwest.com allows individuals to check fares and schedules, make flight reservations, and learn about Southwest sales and promotions. The web site allows visitors to book reservations for hotels and car rentals. It also allows visitors to obtain transfers between the airport and the hotel, or elsewhere, travel insurance, tickets to local attractions, and other information about destinations. Southwest.com offers a "do it yourself" reservation system allowing customers to book and pay for airline flights as well as hotel rooms and rental cars. Exclusively through its web site Southwest offers "click and save Internet specials" that provide weekly discounts on plane tickets, hotel rooms, car rentals, and vacation packages. Southwest.com also offers a "rapid rewards" program that offers incentives to make purchases on the site. According to company factsheets, approximately 46 percent, or over $500 million, of Southwest's passenger revenue for the first quarter of 2002 was generated by online bookings via Southwest.com. However, none of these revenues apparently came from web surfers with serious vision impairments.

Robert Gumson is one of 1.5 million Americans with vision impairments who use the Internet. Being blind, Gumson is unable to use a computer monitor or a mouse. To overcome this difficulty, Gumson has installed on his computer a "screen reader," which is an inexpensive software program that converts graphic and textual information on his monitor into speech that an electronically synthesized voice reads out through the computer's speakers. Using the screen reader has enabled Gumson to access web browsers, e-mail, and other computer functions. Many sites on the World Wide Web are accessible to the visually impaired by the use of screen readers. Southwest.com, however, is not among them. Its unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a "skip navigation link" make it all but impossible for Gumson and other visually impaired individuals to access the features and services of Southwest.com. Because he cannot access Southwest.com, Gumson cannot take advantage of the beneficial services and information available to the site's visitors.

Mr. Gumson and Access Now, Inc., a nonprofit advocacy organization for disabled individuals, brought suit in the United States District Court for the Southern District of Florida, seeking a declaratory judgment that Southwest.com violates (1) the ADA's communication barriers removal provision; (2) the ADA's auxiliary aids and services provision; (3) the ADA's reasonable modifications provisions; and (4) the ADA's full and equal enjoyment and participation provisions. They asked the district court to enjoin Southwest from continuing to violate the ADA, to order it to make Southwest.com accessible to the blind, and for attorneys' fees and costs. Southwest moved to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted the motion and dismissed the claim with prejudice, finding that Southwest.com is not a place of public accommodation and therefore not covered under Title III. Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312, 1322 (S.D.Fla.2002). This appeal ensued.

II.

The case before us hinges entirely on a question of statutory construction, addressing whether Southwest may have violated Title III by making Southwest.com inaccessible to the visually impaired. We review the district court's dismissal pursuant to Rule 12(b)(6) de novo, applying the same legal standard that the district court did. Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.2002). Dismissal under Rule 12(b)(6) is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

However, we are unable to reach the merits of the plaintiffs' claim because, simply put, they have presented this Court with a case that is wholly different from the one they brought to the district court. As we see it, the plaintiffs have abandoned the claim and argument they made before the district court, and in its place raised an entirely new theory on appeal — one never presented to or considered by the trial court.

In their complaint before the district court, the plaintiffs alleged:

The SOUTHWEST.COM website is a public accommodation as defined by Title III of the ADA, 42 U.S.C. § 12181(7), in that it is a place of exhibition, display and a sales establishment. SOUTHWEST has discriminated and continues to discriminate against Plaintiffs, and others who are similarly situated, by denying access to, and full and equal enjoyment of the goods, services, facilities, privileges, advantages and/or accommodations of their website (SOUTHWEST.COM) in derogation of the ADA.

Complaint ¶ 9 (emphasis added). The complaint then detailed the various ways in which the web site was inaccessible to the visually impaired, including, for example, by failing to provide "alternative text" to make it possible for a screen reader program to use and failing to provide accessible online forms. See id. ¶ 10-14.

The plaintiffs' four claims for relief in the complaint all hinged on their inability to access the Southwest.com web site (purportedly a place of public accommodation), without any reference to any connection or "nexus" with any other goods or services (such as travel services) provided by Southwest Airlines. Specifically, Count I alleged that the "website denies access to Plaintiffs through the use of a screen reader and therefore, violates the communications barriers removal provision of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iv), because it constitutes a failure to remove existing communications barriers from the website." Id. ¶ 18. Count II, in turn, claimed that "Defendant's website violates the auxiliary aids and services provision of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iii), because it constitutes a failure to take steps to ensure that individuals who are blind are not denied access to the website, and does not provide an effective method of making this `visually delivered material available to individuals with visual impairments.'" Id. ¶ 22 (citing 42 U.S.C. § 12102(1)(b)). Count III said that "Defendant's website denying access to the Plaintiffs to use it through a screen reader violates the reasonable modifications provisions of the ADA, 42 U.S.C. § 12182(b)(2)(A)(ii), in that it constitutes a failure to make reasonable modifications to policies, practices and procedures necessary to afford access to the website to persons who are blind." Id. ¶ 25. Finally, Count IV alleged that "Defendant's internet website violates the full and equal enjoyment and participation provisions of the ADA pertaining to access to goods and services and advantages offered by SOUTHWEST.COM (42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(i), and 12182(b)(1)(A)(ii)), in that it constitutes a failure to make the website fully accessible and independently usable by individuals who are blind." Id. ¶ 27. All of the counts in the complaint thus focused entirely on the inaccessibility of the web site itself as a place of public accommodation, making no connection between Southwest.com and...