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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GUILLERMO ROBLES , an individual, Plaintiff -Appellant , v. DOMINO ™S PIZZA , LLC, a limited liability corporation, Defendant -Appellee. No. 17-55504 D.C. No. 2:16 -cv-06599-SJO -FFM 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.
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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 serv ices 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 pl aintiff 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.
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ROBLES V . DOMINO ™S PIZZA 3 standards for website accessibility. Rather, an order requiring compliance with WCAG 2.0 was a possible equitabl e 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, wh ich 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 a n 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 distri ct 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 Web er (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
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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, At lantic 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 Na tional 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 Bu siness Legal Center .
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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 A merican 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 B ankers 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 Franch ise 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 Le gal Center, National Multifamily Housing Council, National Retail Federation, Retail Litigation Center .
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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 rema nd. 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 t o 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 fidesign, construct, maintain, and operate its [website and app] to be fully accessibl e to and independently usable by Mr. Robles and other blind or visually -impaired people,fl in violation of the ADA and UCRA. Robles sought a fipermanent injunction requiring Defendant to . . . comply
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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 fiexplor[e] what regulatory guidance [DOJ] can propose to make clear to entities covered by th e ADA their obligations to make their Web sites accessiblefl). 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 fiwithout specifying a p articular level of success criteria and without the DOJ offering meaningful guidance on this topic . . . fl[ew] in the face of due process.fl 4 The 2 DOJ is charged with issuing regulations concerning the implementation of the ADA. See 42 U.S.C. § 12186(b) (fi[T]he Attorney General shall issue regulations in an acc essible format to carry out the provisions of this subchapter . . . .fl); Bragdon v. Abbott , 524 U.S. 624, 646 (1998) (noting that DOJ is fithe agency directed by Congress to issue implementing regulations, to render technical assistance explaining the respo nsibilities of covered individuals and institutions, and to enforce Title III in courtfl) (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 withd rawal 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 fifailed to articulate why [ Domino™s ] provision of a telephone hotline for the visually impaired . . . does not fall with in the range of
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ROBLES V . DOMINO ™S PIZZA 9 district court held that DOJ firegulations and technical assistance are necessary for the Court to determine w hat obligations a regulated individual or institution must abide by in order to comply with Title III.fl 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 inv oke 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 Šhere, 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 invoc ation of the primary jurisdiction doctrine. See Reid v. Johnson & Johnson , 780 F.3d 952, 958 (9th Cir. 2015). permissible options afforded under the ADA. fl However, t he 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 fiprotect[ed] the privacy and independence of the individual with a disability. fl 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 gra nt summary judgment in favor of Domino ™s.
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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 h olding 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 Domi no™s Website and App The ADA fias a whole is intended ‚to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.™fl 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 fi[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 a ccommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.fl 42 U.S.C. § 12182(a). We agree with the district court that the ADA applies to Domino™s website and app. The A DA expressly provides that a place of public accommodation, like Domino™s, engages in unlawful discrimination if it fails to fitake such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or oth erwise treated differently than other individuals because of the absence of
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ROBLES V . DOMINO ™S PIZZA 11 auxiliary aids and services.fl 5 Id. § 12182(b)(2)(A)(iii). DOJ regulations require that a public accommodation fifurnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.fl 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 fiauxiliary aids and servicesfl to include fiaccessible electronic and information technologyfl or fiother effective methods of making vi sually delivered materials available to individuals who are blind or have low vision.fl 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 a vailable 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: fiThe statute applies to the services of a place of public ac commodation, 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.fl Nat™l Fed™n of the Blin d v. Target Corp. , 452 F. 5 The ADA exempts covered entities from the requirement to provide auxiliary aids and services where compliance would fifundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.fl 42 U.S.C. § 1218 2(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 .
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