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The Center for Disability Access, the civil rights division of the Potter Handy, LLP law firm, has argued—or will argue—a half dozen cases before the Ninth Circuit in the year 2020. Needless to say, it is a momentous year with a number of potential game-changing decisions within the world of disability civil rights.

One decision with significant ramifications was argued in May of 2020: Lopez v. Catalina Channel Express, Ninth Cir. Case No. 19-55136.  In Lopez, the plaintiff was on a birthday trip aboard the Catalina Channel’s Jet Cat Express, headed to Catalina with his girlfriend. A T10 paraplegic, wheelchair user, Lopez needed to use the restroom while onboard. The only onboard restrooms had doorways that were too narrow for Lopez to get his wheelchair through and he had an unfortunate accident. He sued Catalina Channel for violating the Americans with Disabilities Act.

During the course of the case, Catalina Channel raised a number of arguments about why it could not widen the doorway a mere six inches to accommodate wheelchair users. These arguments included the theory that it might negatively impact the stability of the vessel, that it could cause its overall weight to change and the overall center of gravity to move, which might implicate safety concerns. The district court held that it was plaintiff’s burden to demonstrate that the door could be widened without these issues. The plaintiff argued that these were affirmative defenses and the defense bore the burdens. We challenged this decision on appeal to the Ninth Circuit.  Our argument is that the defense should bear the burden of production and persuasion for its raised affirmative defenses. The Ninth Circuit has never ruled on this issue and the district courts are somewhat split. Based on the tenor of oral argument, we anticipate that the Ninth Circuit will not place the entire burden on the defense—although it should—but will create an initial modest burden on the plaintiff, with the ultimate burden being borne by the defense. This would not be the homerun decision we are looking for but would be a tremendous improvement over the district court’s decision.

Another decision that we argued two weeks ago (in early June of 2020) was on behalf of five plaintiffs against Starbucks. The lead case is Johnson v. Starbucks, Ninth Cir. Case No. 19-15759. Starbucks has a long-standing practice—that it heatedly defends to this very day—of placing so many merchandise items on its sales counter that it narrows the clear counter surface to between 8 and 15 inches. The plaintiffs argue that this violates the ADA Standards which require 36 inches of counter surface, at a wheelchair accessible height, be provided to wheelchair users. Starbucks argues that where there is not a high-low or dual-height counter, i.e., the entire counter is one accessible height, then it is free to provide any amount—or none at all—of clear and useable counter surface. Adding a wrinkle to the arguments, the Department of Justice issued an amicus brief at the trial level, seeming to support Starbucks’ practice although the brief directly contradicted the DOJ’s previously published (and still maintained on its website) technical assistance materials that say that the wheelchair portion of counter must be kept clear of all merchandise and equipment so that it can be used by wheelchair patrons. The Ninth Circuit issued an unpublished, not to be cited, decision upholding the district court’s decision and we are now preparing a petition for en banc review. While the ruling will likely only affect a small subset of cases on a very particular code issue, the fact that Starbucks are found on almost every corner in America, means that this practice is constantly vexing persons with disabilities. We are going to fight this issue until the end.

Three other issues being argued by CDA in a variety of related cases this year are: (1) whether district judges abuse their discretion by refusing to exercise supplemental jurisdiction over concomitant state law claims while keeping jurisdiction over the federal ADA claims on the basis that California’s recent amendments to its Code of Civil Procedure demonstrates such an interest by California in handling these claims that it presents an “exceptional circumstance,” warranting dismissal by the federal courts; (2) whether an ADA plaintiff with a Title III barrier case must allege specific facts and details about the barriers to properly state a claim under Rule 8 of the Code of Civil Procedure or whether general allegations are sufficient at the pleading stage; and (3) whether an ADA plaintiff must allege specific facts—such as the proximity of his residence to the business, his preference for the goods and services of the business he is suing, and the frequency of his visits to the geographic area—in order to sufficiently plead Article III standing to obtain injunctive relief on the ADA claim.

The decisions on these three issues will affect thousands of cases. They are big issues with wide-reaching implications. CDA is working these cases diligently, with a full understanding of the gravity of the responsibility for helping to properly shape ADA jurisprudence.

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