Access Now, Inc., a non-profit organization, and Robert Gumson, a visually impaired individual, appealed a federal district court’s dismissal of their claim against Southwest Airlines Company (“Southwest”) under Title III of the Americans with Disabilities Act (“ADA”). The case centers on the accessibility of Southwest’s website, Southwest.com, to visually impaired individuals who use the Internet through a software program called a “screen reader.” The “screen reader” converts graphics and textual information on the monitor into speech that an electronically synthesized voice reads out through computer speakers. Southwest.com’s use of unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a “skip navigation link” make it impossible for visually impaired individuals to access the services and features of Southwest.com.The district court dismissed 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). The district court held that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure.” Id. at 1318. All of the counts in the complaint focused entirely on the inaccessibility of the website as a place of public accommodations and made no connection between Southwest.com and any physical location.
On appeal, plaintiffs presented a different theory. They argued that Southwest, as a whole, is a place of public accommodation because it operates a “travel service,” and that it has violated Title III because of the website’s connection with Southwest’s “travel service.” The 11th Circuit upheld the district court’s dismissal, giving five reasons why the Court was unable to reach the merits of either theory.
First, the broader “travel service” theory was not properly before the Court. An issue not raised in the district court and raised for the first time on appeal would not be considered by 11th Circuit. Second, the plaintiffs could have raised, but failed to raise, the new theory in the district court, either in their initial complaint or as an amendment. Third, the new theory is highly dependent on specific facts regarding Southwest’s physical location and the elements of its “travel service.” An appellate court cannot address fact-bound issues where the facts were not alleged in the district court. Fourth, airlines are specifically excepted from Title III of the ADA (and instead are covered under the Air Carriers Access Act). Finally, although it is within a circuit court’s power to entertain an argument raised for the first time on appeal, the Court may only choose to hear the argument under five special circumstances set out in Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001). None of the exceptional conditions was met in the case.
The Court noted that the legal question of whether the Internet is covered by the ADA is of “substantial public importance,” but declined to rule on the issue because the case did not provide the proper vehicle for answering this question.