Samuel Love v. Marriott Hotel Services, Inc. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL LOVE, No. 21-15458
Plaintiff-Appellant,
D.C. No.
v. 3:20-cv-07137-
TSH
MARRIOTT HOTEL SERVICES, INC., a
Delaware Corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Thomas S. Hixson, Magistrate Judge, Presiding
Argued and Submitted February 14, 2022
San Francisco, California
Filed July 22, 2022
Before: M. Margaret McKeown and William A. Fletcher,
Circuit Judges, and Kathryn H. Vratil, * District Judge.
Opinion by Judge McKeown
*
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
2 LOVE V. MARRIOTT HOTEL SERVICES
SUMMARY **
Americans with Disabilities Act
The panel affirmed the district court’s dismissal, for
failure to state a claim, of an action under Title III of the
Americans with Disabilities Act, alleging that a hotel’s
reservation website failed to comply with the “Reservations
Rule,” 28 C.F.R. § 35.302(e)(1), which regulates the
accessibility information that hotels must post on their online
booking sites.
Addressing “Auer deference” to an agency’s
construction of its own regulation, the panel concluded that
the Reservations Rule was ambiguous in its directive that
hotels "[i]dentify and describe accessible features” in
“enough detail to reasonably permit individuals with
disabilities to assess independently” whether the hotel’s
offerings suit their needs. To resolve that ambiguity, the
panel deferred to the Department of Justice’s sound and
reasonable interpretation of that rule (the “DOJ Guidance”),
published in an appendix to the Code of Federal Regulations.
The panel concluded that the defendant’s website satisfied
the DOJ Guidance and thus the Reservations Rule, which
contains different requirements depending on the age of a
building. The panel concluded that this distinction did not
matter here because defendant’s website passed muster
under either set of requirements.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOVE V. MARRIOTT HOTEL SERVICES 3
COUNSEL
Dennis Price (argued) and Russell Handy, Center for
Disability Access, San Diego, California, for Plaintiff-
Appellant.
Philip H. Stillman (argued), Stillman & Associates, Miami
Beach, Florida, for Defendant-Appellee.
Minh N. Vu (argued), Seyfarth Shaw LLP, Washington,
D.C.; Michael E. Steinberg, Boston, Massachusetts; for
Amicus Curiae American Hotel & Lodging Association.
OPINION
McKEOWN, Circuit Judge:
The Americans with Disabilities Act (“ADA”) bars
discrimination in public life against people with disabilities.
See 42 U.S.C. § 12101 et seq. Congress has delegated to the
Department of Justice (“DOJ”) the responsibility of
promulgating regulations under the ADA. Id. § 12186(b).
The regulation at issue in this appeal is the “Reservations
Rule,” which regulates the accessibility information that
hotels must post on their online booking websites. 28 C.F.R.
§ 36.302(e)(1). The Reservations Rule is ambiguous in its
directive that hotels “[i]dentify and describe accessible
features” in “enough detail to reasonably permit individuals
with disabilities to assess independently” whether the hotel’s
offerings suit their needs. Id. § 36.302(e)(1)(ii). To resolve
that ambiguity, we defer to the DOJ’s sound and reasoned
interpretation of that rule (the “DOJ Guidance”), which DOJ
published in an appendix to the Code of Federal Regulations.
28 C.F.R. pt. 35, app. A. We conclude that Marriott’s
4 LOVE V. MARRIOTT HOTEL SERVICES
website satisfies the DOJ Guidance and thus the
Reservations Rule.
I. BACKGROUND
Samuel Love has paraplegia and uses a wheelchair for
mobility. His condition makes it difficult or impossible for
Love to stand, walk, reach objects above his shoulders,
transfer from his wheelchair to other equipment, and
maneuver around fixed objects. Preparing to travel to San
Francisco in February 2021, Love tried to book a room at the
downtown Marriott Marquis using the hotel’s online
reservation website. According to Love, the website lacked
sufficient information about the hotel’s accessibility
features, which prompted him to sue Marriott Hotel Services
Inc. (“Marriott”) under the ADA. Love takes issue with the
website’s description of “Accessible Hotel Features,” and its
list of accessible features in some guestrooms. In addition
to that list, the website provided information for different
types of rooms, including the size and number of beds, the
type of accessible bathing facility, and the accessible
communications features available in the room. The website
listed a phone number for prospective guests to call with
inquiries about “the physical features of [the hotel’s]
accessible rooms, common areas, or special services relating
to a specific disability.”
Love contends that this information was insufficient to
permit him to assess whether a given hotel room would meet
his accessibility needs. Because Love uses a wheelchair, he
alleges he needed to know whether there was at least
30 inches of maneuvering space beside the bed, whether the
sink and mirror had enough clearance to be used from a
wheelchair, whether there were grab bars mounted near the
toilet and shower, whether the shower had a seat and
LOVE V. MARRIOTT HOTEL SERVICES 5
detachable hand-held wand, and whether the heights of the
toilet and bathing facilities were appropriate.
Love claims that Marriott’s failure to post this
information on the reservation website violated the ADA and
its implementing regulations. The district court granted
Marriott’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), finding that the website complied with
the DOJ Guidance and satisfied the Reservations Rule.
II. ANALYSIS
In our de novo review of the district court’s dismissal
under Rule 12(b)(6), we accept as true all factual allegations
in the complaint, construing the pleadings in the light most
favorable to Love, the nonmoving party. Curtis v. Irwin
Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019).
A. REGULATORY FRAMEWORK
Title III of the ADA requires public accommodations,
including hotels, to afford disabled individuals “the
opportunity . . . to participate in or benefit from the goods,
services, facilities, privileges, advantages, or
accommodations of an entity.” 42 U.S.C.
§ 12182(b)(1)(A)(i). Subject to several enumerated
exceptions, those facilities must make “reasonable
modifications” to their “policies, practices, or procedures” to
accommodate individuals with disabilities. Id.§ 12182(b)(2)(A)(ii).
The ADA delegates rulemaking authority to DOJ, which
must “issue regulations . . . to carry out the provisions of”
Title III relating to hotel accommodations. Id. § 12186(b).
In 2004, DOJ issued an advance notice of proposed
rulemaking “to begin the process” of adopting “revised
6 LOVE V. MARRIOTT HOTEL SERVICES
guidelines” implementing the statute’s requirements.
Advance Notice of Proposed Rulemaking Relating to
Nondiscrimination on the Basis of Disability by Public
Accommodations, 69 Fed. Reg. 58768, 58768 (Sept. 30,
2004). The “public response” was “extraordinary” and
highlighted the need for regulatory guidance to ensure that
individuals with disabilities could “reserve hotel rooms with
the same efficiency, immediacy, and convenience as those
who do not need accessible guest rooms.” Notice of
Proposed Rulemaking Relating to Nondiscrimination on the
Basis of Disability by Public Accommodations, 73 Fed. Reg.
34508, 34511, 34525 (June 17, 2008). In response, DOJ
proposed specific language to address hotel reservation
websites and solicited public feedback. See id. at 34553–54.
From this extended process of notice-and-comment
rulemaking emerged the final Reservations Rule.
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities Final Rule,
75 Fed. Reg. 56236, 56251–52 (Sept. 15, 2010) (codified at
28 C.F.R. § 36.302(e)(1). The Reservations Rule requires
places of public accommodations, like the San Francisco
Marriott Marquis here, to “ensure that individuals with
disabilities can make reservations for accessible guest rooms
during the same hours and in the same manner as individuals
who do not need accessible rooms.” 28 C.F.R.
§ 36.302(e)(1)(i). Regulated entities must also “[i]dentify
and describe accessible features in the hotels and guest
rooms” on the hotel’s website, providing “enough detail to
reasonably permit” guests to “assess independently whether
a given hotel or guest room meets his or her accessibility
needs.” Id. § 36.302(e)(1)(ii).
Concurrent with the final Reservations Rule, DOJ
published an appendix with interpretive guidance. See
LOVE V. MARRIOTT HOTEL SERVICES 7
28 C.F.R. pt. 36, app. A. The DOJ Guidance contains a
“detailed description” of the regulatory amendments, and the
“reasoning behind those changes.” Id. It also provides
information about how hotels may comply with the
regulations. For example, older hotels built before the ADA
Standards came into effect should specify “features that do
not comply with the 1991 Standards,” like a bedroom
doorway that does not meet current regulations. Id.
Different standards apply to newer hotels built in compliance
with the 1991 Standards for Accessible Design, see id. app.
D. For these hotels, “it may be sufficient to specify that the
hotel is accessible and, for each accessible room, to describe
the general type of room (e.g., deluxe executive suite), the
size and number of beds (e.g., two queen beds), the type of
accessible bathing facility (e.g., roll-in shower), and
communications features available in the room (e.g., alarms
and visual notification devices).” Id. app. A. In each case,
hotels should make trained staff available to answer
questions about accessibility features and provide guests
more detailed information. Id.
B. WE AFFORD THE DOJ GUIDANCE CONTROLLING
WEIGHT
The parties dispute how much deference we should
afford the DOJ’s interpretation of the Reservations Rule in
the DOJ Guidance. Under the familiar principle of “Auer
deference,” we defer to an agency’s construction of its own
regulation. Kisor v. Wilkie, 139 S. Ct. 2400, 2412 (2019)
(explaining the “presumption that Congress would generally
want the agency to play the primary role in resolving
regulatory ambiguities.”). But Auer deference is warranted
“only if a regulation is genuinely ambiguous,” and only after
we make “an independent inquiry into whether the character
8 LOVE V. MARRIOTT HOTEL SERVICES
and context of the agency interpretation entitles it to
controlling weight.” Id. at 2414, 2416.
Applying the “‘traditional tools’ of construction,”
considering the regulation’s “text, structure, history, and
purpose,” we conclude that the Reservations Rule is
genuinely ambiguous. Id. at 2415 (first quoting Chevron
U. S. A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
843 n.9 (1984)). The Rule requires hotel reservation
websites to “[i]dentify and describe accessible features . . .
in enough detail to reasonably permit” customers “to assess
independently whether a given hotel or guest room meets his
or her accessibility needs.” 28 C.F.R. § 36.302(e)(1)(ii).
But what is “enough detail,” and which “accessible features”
must be identified and described? These are genuine
ambiguities in the regulation’s text. Its structure, history and
purpose do not dispel that textual ambiguity.
1. The Rule’s Structure, History and Purpose
The Rule’s structure and its placement within Part 36 of
the Code of Federal Regulations’ chapter dedicated to the
requirements for public accommodations’
nondiscrimination of people with disabilities does not
resolve the text’s ambiguity, nor do its history and purpose.
During the regulatory process, commenters asked DOJ “to
focus on previously unregulated areas, such as . . .
reservations for hotel rooms.” 75 Fed. Reg. 56236, 56239.
In 2008, commenters observed that “now, more than
seventeen years after enactment of the ADA, as facilities are
becoming physically accessible to individuals with
disabilities, the Department needs to focus on second
generation issues that ensure that individuals with
disabilities can actually gain access to and use the accessible
elements,” such as reservations for hotel rooms. Id. While
the history makes clear that the Rule’s purpose was to
LOVE V. MARRIOTT HOTEL SERVICES 9
address concerns that it was often “difficult or impossible to
obtain information about accessible rooms and hotel
features” from a reservation system, it does not clarify what
level of detail is sufficient or which accessibility features
must be described. 75 Fed. Reg. 56236, 56273.
2. Additional Considerations
Having concluded that the Rule’s text, structure, history,
and purpose each point to the Reservation Rule’s ambiguity,
we ask whether the “character and context of the agency
interpretation” suggest such deference is appropriate. Kisor,
139 S. Ct. at 2416. The DOJ Guidance was promulgated
pursuant to DOJ’s “substantive expertise” in ADA
compliance, making DOJ an “authority” on the Rule’s
meaning. Kisor, 139 S. Ct. at 2417; cf. Miller v. California
Speedway Corp., 536 F.3d 1020, 1025–26 (9th Cir. 2008)
(describing DOJ’s technical expertise on related ADA
provision); see also Fortyune v. City of Lomita, 766 F.3d
1098, 1104 (9th Cir. 2014) (concluding the court was “bound
to defer” to DOJ’s interpretation of ADA implementing
regulations). The Guidance was published in the Federal
Register alongside the Rule and was informed by the
extensive notice-and-comment period that preceded
publication. 75 Fed. Reg. 56236, 56240. It reflected the
“agency’s authoritative [and] official position,” and was the
product of DOJ’s “fair and considered judgment.” Kisor,
139 S. Ct. at 2416. We therefore afford “controlling weight”
to the DOJ Guidance and ask whether the San Francisco
Marriott Marquis’ reservations website complies with that
Guidance. Id.10 LOVE V. MARRIOTT HOTEL SERVICES
C. THE RESERVATIONS WEBSITE COMPLIES WITH
THE DOJ GUIDANCE
Although the Rule contains different requirements
depending on the age of a building,1 that distinction does not
matter here, because the Marriott’s website passes muster
under either set of requirements.
Newer hotels built in compliance with ADA Standards
should “specify that the hotel is accessible” and provide key
information about accessible rooms per the DOJ Guidance.
28 C.F.R. pt. 36, app. A. This information should include
“the general type of room (e.g., deluxe executive suite), the
size and number of beds (e.g., two queen beds), the type of
accessible bathing facility (e.g., roll-in shower), and
communications features available in the room (e.g., alarms
and visual notification devices).” Id.Marriott’s website complies with this guidance. First, it
“specif[ies] that the hotel is accessible,” id., and lists
accessible features available in certain guest rooms,
including 32-inch wide doorways; accessible routes from the
public entrance to accessible guest rooms; alarm clock
telephone ringers; bathroom and bathtub grab bars; bathtub
seats; lowered deadbolt locks; door night guards, electrical
outlets, and viewports; doors with lever handles; flashing
1
Public accommodations that were constructed or altered after
January 26, 1993 must comply with either the 1991 or 2010 ADA
Standards for Accessible Design, depending on the date the construction
or alterations began. 28 C.F.R. § 36.406. Facilities that were
constructed prior to January 1993 and have not been altered are not
required to comply with the 1991 or 2010 Standards but must still
“remove architectural barriers . . . where such removal is readily
achievable.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945
(9th Cir. 2011) (en banc) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
LOVE V. MARRIOTT HOTEL SERVICES 11
door knockers; hearing accessible rooms and/or kits; roll-in
showers; adjustable shower wands; text telephones; close-
captioning television service; wheelchair-height toilet seats;
transfer showers; and accessible vanities. The website also
describes the accessible guest rooms themselves, displaying
information about (1) “the general type of room”; (2) “the
size and number of beds”; (3) “the type of accessible bathing
facility”; and (4) “communications features available in the
room” in accordance with the DOJ Guidance. Id. For
example, the page describing the Hotel’s “Guest room,
2 Queen, Low floor” room type stated that such rooms
offered “2 Queen” beds, “roll in showers” and hearing-
accessible communications features including “visual
alarms and visual notification devices for door and phone.”
Love correctly observes that certain features may be
described as “accessible” but differ in key ways. The DOJ
Guidance provides the example of an “accessible” bathroom,
which could contain either a roll-in shower or a bathtub. Id.(“[H]otel rooms that are in full compliance with current
standards may differ”). In such cases, hotels must explain
the accessible features so that individuals with disabilities
can evaluate whether those features meet their needs. Id.Marriott also complied with this requirement. For example,
Marriott’s website stated that one accessible guestroom
offered a “roll-in shower” (as opposed to a transfer shower
or tub) in compliance with the Guidance. For other features,
the ADA Standards leave no doubt about the meaning of
“accessible.” For those features, additional detail is not
necessary because “accessible” functions as a term of art,
i.e., as a shorthand way of signaling compliance with the
ADA and its implementing regulations. For example, the
1991 Standards specify that “accessible sleeping rooms shall
have a 36 in. [] clear width maneuvering space located along
both sides of a bed,” 28 C.F.R. pt. 36 app. D § 9.2.2(1); that
12 LOVE V. MARRIOTT HOTEL SERVICES
toilet seats must be 17–19 inches high with grab bars
provided, id. §§ 4.16.3, 4.16.4; that sinks must have knee
clearance that is at least 27 inches high, 30 inches wide, and
19 inches deep, id. § 4.24.3; and accessible showers must
have seats and grab bars, id. §§ 4.21.3, 4.21.4—the same
information Love contends was missing from Marriott’s
website.
“Older hotels” not built in accordance with ADA
Standards “should include, at a minimum, information about
accessible entrances to the hotel, the path of travel to guest
check-in and other essential services, and the accessible
route to the accessible room or rooms.” Id. app. A.
Marriott’s website provides that information and more: The
“Hotel Details” page includes an “Accessibility” section
describing the “Accessible Areas with Accessible Routes
from Public Entrance.” Those areas include the business
center, the fitness center, the public entrance alternative, the
registration desk pathway, the registration desk, and the
restaurant lounges. The page also describes “Accessible
Hotel Features” including parking areas and elevators.
These older hotels should also indicate when “important
features . . . do not comply with the [ADA] Standards” and
“provide a way for guests to contact the appropriate hotel
employee for additional information.” Id. Love has neither
alleged that the Hotel fails to comply with the ADA
Standards, nor has he indicated that any information is
missing from the website regarding noncompliant features.
In any event, Marriott’s website provides a phone number
for prospective guests to call with inquiries about “the
physical features of [Marriott’s] accessible rooms, common
areas, or special services relating to a specific disability.” Id.
(requiring hotels to make “trained staff” available to provide
additional accessibility information).
LOVE V. MARRIOTT HOTEL SERVICES 13
To sum up, Marriott’s website comports with DOJ’s
Guidance.
III. CONCLUSION
Because we afford the DOJ Guidance controlling weight
in interpreting the Reservations Rule, and because Marriott
has complied with that Guidance, Love cannot prevail on his
ADA claim. We affirm the district court’s dismissal of the
complaint.