Guillermo Robles v. Dominos Pizza LLC , 913 F.3d 898 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO ROBLES, an individual, No. 17-55504
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-06599-
SJO-FFM
DOMINO’S PIZZA, LLC, a limited
liability corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted October 12, 2018
Pasadena, California
Filed January 15, 2019
Before: Paul J. Watford and John B. Owens, Circuit
Judges, and Jennifer G. Zipps, * District Judge.
Opinion by Judge Owens
*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, sitting by designation.
2 ROBLES V. DOMINO’S PIZZA
SUMMARY **
Americans with Disabilities Act
The panel reversed the district court’s dismissal of an
action under Title III of the Americans with Disabilities Act
and California’s Unruh Civil Rights Act, alleging that
Domino’s Pizza’s website and mobile application were not
fully accessible to a blind or visually impaired person.
The panel held that the ADA applied to Domino’s
website and app because the Act mandates that places of
public accommodation, like Domino’s, provide auxiliary
aids and services to make visual materials available to
individuals who are blind. Even though customers primarily
accessed the website and app away from Domino’s physical
restaurants, the panel stated that the ADA applies to the
services of a public accommodation, not services in a place
of public accommodation. The panel stated that the website
and app connected customers to the goods and services of
Domino’s physical restaurants.
The panel held that imposing liability on Domino’s
under the ADA would not violate the company’s Fourteenth
Amendment right to due process. The panel held that the
statute was not impermissibly vague, and Domino’s had
received fair notice that its website and app must comply
with the ADA. Further, the plaintiff did not seek to impose
liability on Domino’s for failure to comply with the Web
Content Accessibility Guidelines 2.0, private industry
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROBLES V. DOMINO’S PIZZA 3
standards for website accessibility. Rather, an order
requiring compliance with WCAG 2.0 was a possible
equitable remedy. Finally, the lack of specific regulations,
not yet promulgated by the Department of Justice, did not
eliminate Domino’s statutory duty.
The panel held that the district court erred in invoking
the prudential doctrine of primary jurisdiction, which allows
courts to stay proceedings or to dismiss a complaint without
prejudice pending the resolution of an issue within the
special competence of an administrative agency. The panel
reasoned that the DOJ was aware of the issue, and its
withdrawal of an Advanced Notice of Proposed Rulemaking
meant that undue delay was inevitable. The delay was
needless because the application of the ADA to the facts of
this case was well within the district court’s competence.
The panel remanded the case to the district court.
COUNSEL
Joseph R. Manning (argued) and Michael J. Manning,
Manning Law APC, Newport Beach, California, for
Plaintiff-Appellant.
Gregory Francis Hurley (argued) and Bradley J. Leimkuhler,
Sheppard Mullin Richter & Hampton LLP, Costa Mesa,
California, for Defendant-Appellee.
Jessica Paulie Weber (argued) and Eve L. Hill, Brown
Goldstein & Levy LLP, Baltimore, Maryland, for Amici
Curiae National Federation of the Blind, American Council
of the Blind, American Foundation for the Blind,
Association of Late Deafened Adults, California Council of
the Blind, California Foundation for Independent Living
4 ROBLES V. DOMINO’S PIZZA
Centers, Disability Rights Advocates, Disability Rights
California, Disability Rights Education & Defense Fund,
National Association of the Deaf, National Disability Rights
Network, National Federation of the Blind of California,
Washington Lawyers’ Committee for Civil Rights and
Urban Affairs, and World Institute on Disability.
Stephanie N. Moot and Carol C. Lumpkin, K&L Gates LLP,
Miami, Florida; Martin S. Kaufman, Executive VP and
General Counsel, Atlantic Legal Foundation, Harrison, New
York; for Amicus Curiae The Atlantic Legal Foundation.
Stephanie Martz, National Retail Federation, Washington,
D.C., for Amicus Curiae National Retail Federation.
Kathleen McGuigan and Deborah White, Retail Litigation
Center, Inc., Arlington, Virginia, for Amicus Curiae Retail
Litigation Center, Inc.
Felicia Watson and Jeffrey B. Augello, National Association
of Home Builders of the United States, Washington, D.C.,
for Amicus Curiae National Association of Home Builders
of the United States.
Janet Galeria and Warren Postman, U.S. Chamber Litigation
Center, Washington, D.C., for Amicus Curiae Chamber of
Commerce of the United States of America.
Angelo I. Amador, Restaurant Law Center, Washington,
D.C., for Amicus Curiae Restaurant Law Center.
Elizabeth Milito, Karen R. Harned, National Federation of
Independent Business Small Business Legal Center,
Washington, D.C., for Amicus Curiae National Federation
of Independent Business Small Business Legal Center.
ROBLES V. DOMINO’S PIZZA 5
Christine Mott, International Council of Shopping Centers,
New York, New York, for Amicus Curiae International
Council of Shopping Centers.
Justin Vermuth, American Resort Development Association,
Washington, D.C., for Amicus Curiae American Resort
Development Association.
Mary Caroline Miller, Kevin W. Shaughnessy, and Joyce
Ackerbaum Cox, Baker & Hostetler LLP, Orlando, Florida;
John B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio; for
Amici Curiae Restaurant Law Center, American Bankers
Association, American Hotel & Lodging Association,
American Resort Development Association, Asian
American Hotel Owners Association, Chamber of
Commerce of the United States of America, International
Council of Shopping Centers, International Franchise
Association, National Association of Convenience Stores,
National Association of Home Builders of the United States,
National Association of Realtors, National Association of
Theater Owners, National Federation of Independent
Business Small Business Legal Center, National
Multifamily Housing Council, National Retail Federation,
Retail Litigation Center.
6 ROBLES V. DOMINO’S PIZZA
OPINION
OWENS, Circuit Judge:
Plaintiff Guillermo Robles, a blind man, appeals from
the district court’s dismissal of his complaint alleging
violations of the Americans with Disabilities Act, 42 U.S.C.
§ 12101, and California’s Unruh Civil Rights Act (UCRA),
California Civil Code § 51. Robles alleged that Defendant
Domino’s Pizza, LLC, (Domino’s) failed to design,
construct, maintain, and operate its website and mobile
application (app) to be fully accessible to him. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Robles accesses the internet using screen-reading
software, which vocalizes visual information on websites.
Domino’s operates a website and app that allows customers
to order pizzas and other products for at-home delivery or
in-store pickup, and receive exclusive discounts.
On at least two occasions, Robles unsuccessfully
attempted to order online a customized pizza from a nearby
Domino’s. Robles contends that he could not order the pizza
because Domino’s failed to design its website and app so his
software could read them.
In September 2016, Robles filed this suit seeking
damages and injunctive relief based on Domino’s failure to
“design, construct, maintain, and operate its [website and
app] to be fully accessible to and independently usable by
Mr. Robles and other blind or visually-impaired people,” in
violation of the ADA and UCRA. Robles sought a
“permanent injunction requiring Defendant to . . . comply
ROBLES V. DOMINO’S PIZZA 7
with [Web Content Accessibility Guidelines (WCAG) 2.0]
for its website and Mobile App.” 1 Domino’s moved for
summary judgment on the grounds that (1) the ADA did not
cover Domino’s online offerings; and (2) applying the ADA
to the website or app violated Domino’s due process rights.
Domino’s alternatively invoked the primary jurisdiction
doctrine, which permits a court to dismiss a complaint
pending the resolution of an issue before an administrative
agency with special competence. See Clark v. Time Warner
Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (defining
primary jurisdiction doctrine).
The district court first held that Title III of the ADA
applied to Domino’s website and app. The court highlighted
the ADA’s “auxiliary aids and services” section, 42 U.S.C.
§ 12182(b)(2)(A)(iii), which requires that covered entities
provide auxiliary aids and services to ensure that individuals
with disabilities are not excluded from accessing the services
of a “place of public accommodation”—in this case, from
using the website or app to order goods from Domino’s
physical restaurants.
1
WCAG 2.0 guidelines are private industry standards for website
accessibility developed by technology and accessibility experts. WCAG
2.0 guidelines have been widely adopted, including by federal agencies,
which conform their public-facing, electronic content to WCAG 2.0
level A and level AA Success Criteria. 36 C.F.R. pt. 1194, app. A
(2017). In addition, the Department of Transportation requires airline
websites to adopt these accessibility standards. See 14 C.F.R. § 382.43
(2013). Notably, the Department of Justice has required ADA-covered
entities to comply with WCAG 2.0 level AA (which incorporates level
A) in many consent decrees and settlement agreements in which the
United States has been a party.
8 ROBLES V. DOMINO’S PIZZA
The district court then addressed Domino’s argument
that applying the ADA to its website and app violated its due
process rights because the Department of Justice (DOJ) had
failed to provide helpful guidance, despite announcing its
intention to do so in 2010. 2 See Nondiscrimination on the
Basis of Disability, 75 Fed. Reg. 43460-01 (July 26, 2010)
(issuing Advance Notice of Proposed Rulemaking
(ANPRM) to “explor[e] what regulatory guidance [DOJ] can
propose to make clear to entities covered by the ADA their
obligations to make their Web sites accessible”). 3
The district court, relying heavily on United States v.
AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),
concluded that imposing the WCAG 2.0 standards on
Domino’s “without specifying a particular level of success
criteria and without the DOJ offering meaningful guidance
on this topic . . . fl[ew] in the face of due process.” 4 The
2
DOJ is charged with issuing regulations concerning the
implementation of the ADA. See 42 U.S.C. § 12186(b) (“[T]he Attorney
General shall issue regulations in an accessible format to carry out the
provisions of this subchapter . . . .”); Bragdon v. Abbott, 524 U.S. 624,
646 (1998) (noting that DOJ is “the agency directed by Congress to issue
implementing regulations, to render technical assistance explaining the
responsibilities of covered individuals and institutions, and to enforce
Title III in court”) (internal citations omitted).
3
We recognize that DOJ withdrew its ANPRM on December 26,
2017, so the district court did not have the benefit of considering this
withdrawal when it issued its decision on March 20, 2017. See
Nondiscrimination on the Basis of Disability, 82 Fed. Reg. 60932-01
(Dec. 26, 2017).
4
Only after Robles filed this suit, Domino’s website and app began
displaying a telephone number that customers using screen-reading
software could dial to receive assistance. The district court noted that
Robles had “failed to articulate why [Domino’s] provision of a telephone
hotline for the visually impaired . . . does not fall within the range of
ROBLES V. DOMINO’S PIZZA 9
district court held that DOJ “regulations and technical
assistance are necessary for the Court to determine what
obligations a regulated individual or institution must abide
by in order to comply with Title III.” In the district court’s
view, therefore, only the long-awaited regulations from DOJ
could cure the due process concerns, so it had no choice but
to invoke the primary jurisdiction doctrine. The district
court granted Domino’s motion to dismiss without
prejudice, and this appeal followed.
II. STANDARD OF REVIEW
We review de novo the district court’s interpretation and
construction of a federal statute—here, the court’s
application of the ADA to websites and apps. See ASARCO,
LLC v. Celanese Chem. Co., 792 F.3d 1203, 1208 (9th Cir.
2015). As the constitutionality of a statute or regulation is a
question of law, we also review de novo the district court’s
holding that applying the ADA to websites and apps would
violate due process. See Az. Libertarian Party v. Reagan,
798 F.3d 723, 728 (9th Cir. 2015); Preminger v. Peake,
552 F.3d 757, 765 n.7 (9th Cir. 2008). Finally, we review
de novo the court’s invocation of the primary jurisdiction
doctrine. See Reid v. Johnson & Johnson, 780 F.3d 952, 958
(9th Cir. 2015).
permissible options afforded under the ADA.” However, the district
court did not reach whether a genuine issue of material fact existed as to
the telephone hotline’s compliance with the ADA, including whether the
hotline guaranteed full and equal enjoyment and “protect[ed] the privacy
and independence of the individual with a disability.” 28 C.F.R.
§ 36.303(c)(1)(ii) (2017). We believe that the mere presence of the
phone number, without discovery on its effectiveness, is insufficient to
grant summary judgment in favor of Domino’s.
10 ROBLES V. DOMINO’S PIZZA
III. DISCUSSION
This appeal presents three questions. First, whether the
ADA applies to Domino’s website and app. Second, if so,
whether that holding raises due process concerns. Third,
whether a federal court should invoke the primary
jurisdiction doctrine because DOJ has failed to provide
meaningful guidance on how to make websites and apps
comply with the ADA.
A. The ADA’s Application to Domino’s Website and
App
The ADA “as a whole is intended ‘to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.’”
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999)
(quoting 42 U.S.C. § 12101(b)(1)). Title III of the ADA
advances that goal by providing that “[n]o individual shall
be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation.”
42 U.S.C. § 12182(a). We agree with the district court that
the ADA applies to Domino’s website and app.
The ADA expressly provides that a place of public
accommodation, like Domino’s, engages in unlawful
discrimination if it fails to “take such steps as may be
necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of
ROBLES V. DOMINO’S PIZZA 11
auxiliary aids and services.” 5 Id. § 12182(b)(2)(A)(iii).
DOJ regulations require that a public accommodation
“furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with
individuals with disabilities.” 28 C.F.R. § 36.303(c)(1)
(emphasis added); see Bragdon, 524 U.S. at 646 (holding
that DOJ’s administrative guidance on ADA compliance is
entitled to deference). And DOJ defines “auxiliary aids and
services” to include “accessible electronic and information
technology” or “other effective methods of making visually
delivered materials available to individuals who are blind or
have low vision.” 28 C.F.R. § 36.303(b)(2).
Therefore, the ADA mandates that places of public
accommodation, like Domino’s, provide auxiliary aids and
services to make visual materials available to individuals
who are blind. See id. § 36.303. This requirement applies
to Domino’s website and app, even though customers
predominantly access them away from the physical
restaurant: “The statute applies to the services of a place of
public accommodation, not services in a place of public
accommodation. To limit the ADA to discrimination in the
provision of services occurring on the premises of a public
accommodation would contradict the plain language of the
statute.” Nat’l Fed’n of the Blind v. Target Corp., 452 F.
5
The ADA exempts covered entities from the requirement to
provide auxiliary aids and services where compliance would
“fundamentally alter the nature of the good, service, facility, privilege,
advantage, or accommodation being offered or would result in an undue
burden.” 42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R.
§ 36.303(a). At this stage, Domino’s does not argue that making its
website or app accessible to blind people would fundamentally alter the
nature of its offerings or be an undue burden.
12 ROBLES V. DOMINO’S PIZZA
Supp. 2d 946, 953 (N.D. Cal. 2006) (emphasis in original)
(internal citation omitted).
The alleged inaccessibility of Domino’s website and app
impedes access to the goods and services of its physical
pizza franchises—which are places of public
accommodation. See 42 U.S.C. § 12181(7)(B) (listing a
restaurant as a covered “public accommodation”).
Customers use the website and app to locate a nearby
Domino’s restaurant and order pizzas for at-home delivery
or in-store pickup. This nexus between Domino’s website
and app and physical restaurants—which Domino’s does not
contest—is critical to our analysis. 6
In Weyer v. Twentieth Century Fox Film Corp., our court
examined whether an insurance company that administered
an allegedly discriminatory employer-provided insurance
policy was a covered “place of public accommodation.”
198 F.3d 1104, 1113–14 (9th Cir. 2000). We concluded that
it was not. Because the ADA only covers “actual, physical
places where goods or services are open to the public, and
places where the public gets those goods or services,” there
had to be “some connection between the good or service
complained of and an actual physical place.” Id. at 1114.
While the insurance company had a physical office, the
insurance policy at issue did not concern accessibility, or
“such matters as ramps and elevators so that disabled people
can get to the office.” Id. And although it was administered
by the insurance company, the employer-provided policy
6
We need not decide whether the ADA covers the websites or apps
of a physical place of public accommodation where their inaccessibility
does not impede access to the goods and services of a physical location.
ROBLES V. DOMINO’S PIZZA 13
was not a good offered by the insurance company’s physical
office. Id. at 1115.
Unlike the insurance policy in Weyer, Domino’s website
and app facilitate access to the goods and services of a place
of public accommodation—Domino’s physical restaurants.
They are two of the primary (and heavily advertised) means
of ordering Domino’s products to be picked up at or
delivered from Domino’s restaurants. We agree with the
district court in this case—and the many other district courts
that have confronted this issue in similar contexts 7—that the
ADA applies to Domino’s website and app, which connect
customers to the goods and services of Domino’s physical
restaurants.
B. Due Process
The second question we address is whether applying the
ADA to Domino’s website and app raises due process
concerns. Despite concluding that the ADA covered
Domino’s website and app, the district court held that
7
See, e.g., Robles v. Yum! Brands, Inc., 2018 WL 566781, at *4
(C.D. Cal. Jan. 24, 2018); Rios v. N.Y. & Co., Inc., 2017 WL 5564530,
at *3 (C.D. Cal. Nov. 16, 2017); Reed v. CVS Pharmacy, Inc., 2017 WL
4457508, at *3 (C.D. Cal. Oct. 3, 2017); Gorecki v. Hobby Lobby Stores,
Inc., 2017 WL 2957736, at *3–4 (C.D. Cal. June 15, 2017); Target,
452 F. Supp. 2d at 953; Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d
1368, 1375–76 (S.D. Fla. 2018); Castillo v. Jo-Ann Stores, LLC, 286 F.
Supp. 3d 870, 881 (N.D. Ohio 2018); Gil v. Winn-Dixie Stores, Inc.,
257 F. Supp. 3d 1340, 1348–49 (S.D. Fla. 2017), appeal docketed, No.
17-13467 (11th Cir. Aug. 1, 2017).
14 ROBLES V. DOMINO’S PIZZA
imposing liability on Domino’s here would violate its
Fourteenth Amendment right to due process. 8
As a preliminary matter, we hold that Domino’s has
received fair notice that its website and app must comply
with the ADA. An impermissibly vague statute violates due
process because it does not “give fair notice of conduct that
is forbidden or required.” F.C.C. v. Fox Television Stations,
Inc., 567 U.S. 239, 253 (2012). However, “[a] statute is
vague not when it prohibits conduct according ‘to an
imprecise but comprehensible normative standard, but rather
in the sense that no standard of conduct is specified at all.’”
Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir.
2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611,
614 (1971)). Moreover, “[b]ecause the ADA is a statute that
regulates commercial conduct, it is reviewed under a less
stringent standard of specificity” than, for example, criminal
laws or restrictions on speech. Id. (citing Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498–99 (1982)). 9 Therefore, the ADA would be vague “only
8
The district court also held (in error) that Robles conceded
Domino’s due process argument by not squarely addressing it at the
motion to dismiss stage. The relevant issue here is whether Domino’s
website and app comply with the ADA. Domino’s due process argument
is a defense to that issue. Domino’s cites no authority holding that a
plaintiff’s failure to respond to a defense waives the plaintiff’s cause of
action (here, the ADA). Regardless, “an issue will generally be deemed
waived on appeal if the argument was not raised sufficiently for the trial
court to rule on it.” In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
988, 992 (9th Cir. 2010) (internal quotation marks omitted). Here, the
parties raised the matter sufficiently for the district court to dedicate four
pages to this issue, and Robles did not waive his ability to respond to
Domino’s due process argument.
9
In Village of Hoffman Estates, the Supreme Court explained: “The
degree of vagueness that the Constitution tolerates—as well as the
ROBLES V. DOMINO’S PIZZA 15
if it is so indefinite in its terms that it fails to articulate
comprehensible standards to which a person’s conduct must
conform.” Id.
The ADA articulates comprehensible standards to which
Domino’s conduct must conform. Since its enactment in
1990, the ADA has clearly stated that covered entities must
provide “full and equal enjoyment of the[ir] goods, services,
facilities, privileges, advantages, or accommodations” to
people with disabilities, 42 U.S.C. § 12182(a), and must
“ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently
than other individuals because of the absence of auxiliary
aids and services,” id. § 12182(b)(2)(A)(iii). DOJ has
clarified that these provisions require “effective
communication.” 28 C.F.R. § 36.303(c)(1). Moreover,
since it announced its position in 1996, DOJ has “repeatedly
affirmed the application of [T]itle III to Web sites of public
accommodations.” 75 Fed. Reg. 43460-01, 43464 (July 26,
2010). Thus, at least since 1996, Domino’s has been on
notice that its online offerings must effectively communicate
with its disabled customers and facilitate “full and equal
enjoyment” of Domino’s goods and services. See 42 U.S.C.
§ 12182(a); see also Gorecki, 2017 WL 2957736, at *5
(“Title III’s general prohibition of discrimination on the
basis of disability, and its requirements to provide
appropriate auxiliary aids and services, where necessary to
ensure effective communication, place an affirmative
relative importance of fair notice and fair enforcement—depends in part
on the nature of the enactment. Thus, economic regulation is subject to
a less strict vagueness test because its subject matter is often more
narrow, and because businesses, which face economic demands to plan
behavior carefully, can be expected to consult relevant legislation in
advance of action.” 455 U.S. at 498 (internal footnotes omitted).
16 ROBLES V. DOMINO’S PIZZA
obligation on places that meet the definition of a public
accommodation to ensure disabled individuals have as full
and equal enjoyment of their websites as non-disabled
individuals.”).
However, the heart of Domino’s due process argument
is not that Domino’s lacked fair notice that its website and
app must comply with the ADA. Instead, Domino’s argues
that imposing liability would violate due process because
(1) Robles seeks to impose liability on Domino’s for failing
to comply with WCAG 2.0, which are private, unenforceable
guidelines; and (2) DOJ has not issued regulations
specifying technical standards for compliance, so Domino’s
does not have “fair notice of what specifically the ADA
requires companies to do in order to make their websites
accessible.”
1. Robles Does Not Seek to Impose Liability
Based on WCAG 2.0
First, we address Domino’s argument that Robles seeks
to impose liability based on Domino’s failure to comply with
WCAG 2.0. Relying heavily on our decision in AMC,
Domino’s argues that this would violate due process because
Domino’s has not received fair notice of its obligation to
comply with the WCAG 2.0 guidelines. Yet, as explained
below, Domino’s overstates both the holding of AMC and
the significance of WCAG 2.0 in this case.
AMC concerned movie-theater accessibility for
wheelchair-bound patrons. See 549 F.3d at 762. Our court
reversed an injunction ordering that AMC’s stadium-style
theaters (many built before 1998) undergo a massive
reconfiguration to comply with DOJ’s interpretation of an
ambiguous accessibility regulation (finalized in 1998). Id.
at 768–70. Our court held that requiring AMC to
ROBLES V. DOMINO’S PIZZA 17
reconfigure theaters built before DOJ announced its
interpretation of the ambiguous regulation would violate due
process. Id.
This case does not present the fair notice concerns of
AMC, and the district court erred in equating the relevance
of WCAG 2.0 with the regulation at issue in AMC. Here,
Robles does not seek to impose liability based on Domino’s
failure to comply with WCAG 2.0. Rather, Robles merely
argues—and we agree—that the district court can order
compliance with WCAG 2.0 as an equitable remedy if, after
discovery, the website and app fail to satisfy the ADA. At
this stage, Robles only seeks to impose liability on Domino’s
for failing to comply with § 12182 of the ADA, not for the
failure to comply with a regulation or guideline of which
Domino’s has not received fair notice. See Reed, 2017 WL
4457508, at *5 (“[A]t this point in the litigation . . . Plaintiff
does not seek to require [Defendant] to adopt any particular
set of guidelines. Plaintiff simply alleges that her difficulty
accessing [Defendant’s] website and mobile app violate the
ADA.”).
Also unlike in AMC—where the overbroad injunction
would have required AMC to retrofit theaters built before it
received fair notice of DOJ’s position—Domino’s does not
allege that its website or app were created prior to (or never
updated since) 1996, when DOJ announced its position that
the ADA applies to websites of covered entities. Further, the
regulation at issue in AMC was ambiguous. See 549 F.3d at
764–67 (summarizing circuit split on how to interpret this
regulation, which all courts agreed was ambiguous). It was
unfair to expect AMC to have guessed which interpretation
to follow when circuits were in disagreement and DOJ had
not announced its position. Id. at 768. By contrast, the
statutory provisions of § 12182 at issue here—requiring
18 ROBLES V. DOMINO’S PIZZA
“auxiliary aids and services” and “full and equal
enjoyment”—are flexible, but not ambiguous, and have been
interpreted many times by federal courts. 10 Finally, in AMC,
our court limited its due process holding to the district
court’s remedy without disturbing liability. Id. at 768–70.
Here, the district court dismissed the case at the pleading
stage before Robles could conduct discovery and establish
liability. Even if due process concerns akin to those in AMC
were present here, further consideration of them “would be
premature because due process constrains the remedies that
may be imposed,” Fortyune v. City of Lomita, 766 F.3d
1098, 1106 n.13 (9th Cir. 2014) (citing AMC, 549 F.3d at
768–70) (emphasis added), and not the initial question of
ADA compliance. See Reed 2017 WL 4457508, at *4
(“[W]hether or not [defendant’s] digital offerings must
comply with [WCAG], or any other set of noncompulsory
guidelines, is a question of remedy, not liability.”) (emphasis
in original).
10
See, e.g., Baughman v. Walt Disney World Co., 685 F.3d 1131,
1135 (9th Cir. 2012) (holding that, to provide “full and equal
enjoyment,” public accommodations must “consider[] how their
facilities are used by non-disabled guests and then take reasonable steps
to provide disabled guests with a like experience”); Fortyune v.
American Multi-Cinema, 364 F.3d 1075, 1085 (9th Cir. 2004)
(interpreting “full and equal enjoyment” to require theater to provide
wheelchair seating and adjacent seat for plaintiff’s wife); see also, e.g.,
McGann v. Cinemark, 873 F.3d 218, 223 (3d Cir. 2017) (holding that
theater’s failure to provide deaf patron with sign language interpreter—
an auxiliary aid or service—excluded him from services); Argenyi v.
Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) (holding that
university must provide reasonable auxiliary aids and services to
partially deaf medical student to afford him opportunity equal to his
nondisabled peers).
ROBLES V. DOMINO’S PIZZA 19
2. The Lack of Specific Regulations Does Not
Eliminate Domino’s Statutory Duty
Second, we address Domino’s argument that imposing
liability here would violate due process because Domino’s
lacked “fair notice of what specifically the ADA requires
companies to do in order to make their websites accessible.”
In other words, Domino’s argues it “needs consistent
standards when it designs its website.” While we understand
why Domino’s wants DOJ to issue specific guidelines for
website and app accessibility, the Constitution only requires
that Domino’s receive fair notice of its legal duties, not a
blueprint for compliance with its statutory obligations. And,
as one district court noted, the lack of specific instructions
from DOJ might be purposeful:
The DOJ’s position that the ADA applies to
websites being clear, it is no matter that the
ADA and the DOJ fail to describe exactly
how any given website must be made
accessible to people with visual impairments.
Indeed, this is often the case with the ADA’s
requirements, because the ADA and its
implementing regulations are intended to
give public accommodations maximum
flexibility in meeting the statute’s
requirements. This flexibility is a feature, not
a bug, and certainly not a violation of due
process.
Reed, 2017 WL 4457508, at *5. A desire to maintain this
flexibility might explain why DOJ withdrew its ANPRM
related to website accessibility and “continue[s] to assess
whether specific technical standards are necessary and
appropriate to assist covered entities with complying with
20 ROBLES V. DOMINO’S PIZZA
the ADA.” 82 Fed. Reg. 60932-01 (Dec. 26, 2017)
(emphasis added).
And in any case, our precedent is clear that, “as a general
matter, the lack of specific regulations cannot eliminate a
statutory obligation.” City of Lomita, 766 F.3d at 1102; see
also Gorecki, 2017 WL 2957736, at *4 (“The lack of specific
regulations [regarding website accessibility] does not
eliminate [defendant’s] obligation to comply with the ADA
or excuse its failure to comply with the mandates of the
ADA.”).
For example, in City of Lomita, the defendant-city
argued that although existing Title II regulations broadly
prohibited it from discriminating in its services, requiring the
city to provide accessible on-street parking would violate its
due process rights absent specific regulatory guidance.
766 F.3d at 1102. Our court rejected that argument, and held
that the ADA’s regulations did not “suggest[] that when
technical specifications do not exist for a particular type of
facility, public entities have no accessibility obligations.”
Id. at 1103 (citing Barden v. City of Sacramento, 292 F.3d
1073, 1076–78 (9th Cir. 2002) (holding that Title II requires
public entities to maintain accessible public sidewalks,
notwithstanding absence of implementing regulations
addressing sidewalks)).
Similarly, in Kirola v. City & County of San Francisco,
we explained that even if there were no technical
accessibility requirements for buildings and facilities under
Title II of the ADA, “[p]ublic entities would not suddenly
find themselves free to ignore access concerns when altering
or building new rights-of-way, parks, and playgrounds.”
860 F.3d 1164, 1180 (9th Cir. 2017). Instead, our court
applied Title II’s “readily accessible” and “usable” standards
to determine whether the city violated the ADA. Id.
ROBLES V. DOMINO’S PIZZA 21
Although DOJ guidance might have been helpful, “[g]iving
content to general standards is foundational to the judicial
function.” Id. (citing Marbury v. Madison, 5 U.S. 137, 177
(1803)).
Moreover, the possibility that an agency might issue
technical standards in the future does not create a due
process problem. In Reich v. Montana Sulphur & Chemical
Company, our court held that although the Secretary of
Labor would likely promulgate specific standards for safe
and healthy working conditions, these standards would only
“amplify and augment” the existing statutory obligation to
provide a safe workspace and would not “displace” it.
32 F.3d 440, 445 (9th Cir. 1994); cf. Or. Paralyzed Veterans
of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1132–33 (9th
Cir. 2003) (following DOJ’s interpretation of existing
regulation, even though Access Board was addressing the
specific topic at issue through rulemaking). The same logic
applies here.
In sum, we conclude that the district court erred in
holding that imposing liability in this case would violate
Domino’s due process rights. Domino’s has received fair
notice that its website and app must provide effective
communication and facilitate “full and equal enjoyment” of
Domino’s goods and services to its customers who are
disabled. Our Constitution does not require that Congress or
DOJ spell out exactly how Domino’s should fulfill this
obligation.
C. Primary Jurisdiction Doctrine
Finally, we address the primary jurisdiction doctrine,
which “allows courts to stay proceedings or to dismiss a
complaint without prejudice pending the resolution of an
issue within the special competence of an administrative
22 ROBLES V. DOMINO’S PIZZA
agency.” Clark, 523 F.3d at 1114. It is a prudential doctrine
that does not “implicate[] the subject matter jurisdiction of
the federal courts.” Astiana v. Hain Celestial Grp., Inc.,
783 F.3d 753, 759 (9th Cir. 2015) (quoting Syntek
Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d
775, 780 (9th Cir. 2002)). Rather, it permits courts to
determine “that an otherwise cognizable claim implicates
technical and policy questions that should be addressed in
the first instance by the agency with regulatory authority
over the relevant industry rather than by the judicial branch.”
Id. at 760 (quoting Clark, 523 F.3d at 1114).
While “no fixed formula exists for applying the doctrine
of primary jurisdiction,” we consider: “(1) the need to
resolve an issue that (2) has been placed by Congress within
the jurisdiction of an administrative body having regulatory
authority (3) pursuant to a statute that subjects an industry or
activity to a comprehensive regulatory authority that
(4) requires expertise or uniformity in administration.”
Davel Commc’n, Inc. v. Qwest Corp., 460 F.3d 1075, 1086–
87 (9th Cir. 2006); see also Astiana, 783 F.3d at 760 (same).
Here, the district court erred in invoking primary
jurisdiction. The purpose of the doctrine is not to “secure
expert advice” from an agency “every time a court is
presented with an issue conceivably within the agency’s
ambit.” Brown v. MCI WorldCom Network Servs., Inc.,
277 F.3d 1166, 1172 (9th Cir. 2002); see also Astiana,
783 F.3d at 760 (“Not every case that implicates the
expertise of federal agencies warrants invocation of primary
jurisdiction.”). Rather, “‘efficiency’ is the ‘deciding factor’
in whether to invoke primary jurisdiction.” Astiana,
783 F.3d at 760 (citation omitted). Our precedent is clear:
[E]ven when agency expertise would be
helpful, a court should not invoke primary
ROBLES V. DOMINO’S PIZZA 23
jurisdiction when the agency is aware of but
has expressed no interest in the subject
matter of the litigation. Similarly, primary
jurisdiction is not required when a referral to
the agency would significantly postpone a
ruling that a court is otherwise competent to
make.
Id. at 761 (emphases added). Both circumstances are present
here.
First, DOJ is aware of the issue—it issued the ANPRM
in 2010, 75 Fed. Reg. 43460-01 (July 26, 2010), and
withdrew it in 2017, 82 Fed. Reg. 60932-01 (Dec. 26, 2017).
Second, DOJ’s withdrawal means that the potential for
undue delay is not just likely, but inevitable. Robles has no
ability to participate in an administrative hearing process
with remedies. See Arizona ex rel. Goddard v. Harkins
Admin. Servs., Inc., 2011 WL 13202686, at *3 (D. Az. Feb.
8, 2011) (“[T]he DOJ does not have an administrative
process in which these parties can directly participate to
resolve their dispute. The absence of such an administrative
process argues against referral to an agency under the
primary jurisdiction doctrine.”).
Therefore, according to the district court, Robles cannot
vindicate his statutory rights unless DOJ reopens and
completes its rulemaking process. This would “needlessly
delay the resolution of” Robles’ claims and undercut
efficiency, “the ‘deciding factor’ in whether to invoke
primary jurisdiction.” Astiana, 783 F.3d at 760 (citation
omitted); see also Reid, 780 F.3d at 966–67 (declining to
invoke primary jurisdiction in part because “it has been over
a decade since the FDA indicated that it would issue a new
[rule]”).
24 ROBLES V. DOMINO’S PIZZA
The delay is “needless” because the application of the
ADA to the facts of this case are well within the court’s
competence. Properly framed, the issues for the district
court to resolve on remand are whether Domino’s website
and app provide the blind with auxiliary aids and services for
effective communication and full and equal enjoyment of its
products and services. Courts are perfectly capable of
interpreting the meaning of “equal” and “effective” and have
done so in a variety of contexts. See supra note 10
(providing examples of circuit courts interpreting ADA’s
requirements of “full and equal enjoyment” and “auxiliary
aids and services” in non-website contexts); see also
Georgia v. Ashcroft, 539 U.S. 461, 462 (2003) (interpreting
“effective exercise of the electoral franchise”), superseded
by statute, 52 U.S.C. §§ 10304(b)(d), as recognized in Ala.
Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1273
(2015); Strickland v. Washington, 466 U.S. 668, 687–88
(1984) (interpreting right to “effective assistance of
counsel”). In addition, if the court requires specialized or
technical knowledge to understand Robles’ assertions, the
parties can submit expert testimony. See, e.g., Nat’l Fed’n
of the Blind v. Lamone, 813 F.3d 494, 501–02 (4th Cir. 2016)
(relying on credited expert testimony on security risks
associated with “online ballot marking tool,” which the court
held was a “reasonable modification” to make absentee
voting accessible to blind voters); cf. Strong v. Valdez Fine
Foods, 724 F.3d 1042, 1046–47 (9th Cir. 2013) (holding that
expert testimony is not required to understand plaintiff’s
straightforward ADA claim about physical barriers).
Whether Domino’s website and app are effective means of
communication is a fact-based inquiry within a court’s
competency.
Thus, we reverse the district court’s reliance on the
primary jurisdiction doctrine. Rather than promote
ROBLES V. DOMINO’S PIZZA 25
efficiency—the deciding factor in whether to invoke primary
jurisdiction—the district court’s ruling unduly delays the
resolution of an issue that a court can decide. See Astiana,
783 F.3d at 760–62.
IV. CONCLUSION
We express no opinion about whether Domino’s website
or app comply with the ADA. We leave it to the district
court, after discovery, to decide in the first instance whether
Domino’s website and app provide the blind with effective
communication and full and equal enjoyment of its products
and services as the ADA mandates. 11
REVERSED AND REMANDED.
11
We also reverse the dismissal of Robles’ UCRA claims and
remand for proceedings consistent with this opinion.