United States Court of Appeals
For the First Circuit
No. 04-2086
DISABLED AMERICANS FOR EQUAL ACCESS, INC.
Plaintiff,
EDUARDO UMPIERRE,
Plaintiff, Appellant,
v.
FERRIES DEL CARIBE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
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. Peñagarícano, with whom McConnell Valdés was on brief,
for appellee.
April 26, 2005
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 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
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.
2
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
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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,
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 means. See
also 28 C.F.R. § 36.305.
3
The record contains no explanation of the reason for this
unusual motion practice.
4
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.
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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.
5
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."
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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).
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 (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
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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
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.
7
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 III. Dudley, 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
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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.
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
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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that a decision by the Supreme Court is pending. Spector v.
Norwegian Cruise Line Ltd., No. 03-1388 (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.
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, 125 S. Ct. 26 (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
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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).
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.
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