Andres Gomez v. Dade County Federal Credit Uni

Filing

Opinion issued by court as to Appellant Andres Gomez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11539
________________________
D.C. Docket No. 1:13-cv-23882-FAM
ANDRES GOMEZ,
Plaintiff-Appellant,
versus
DADE COUNTY FEDERAL CREDIT UNION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 6, 2015)
Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.

__________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.

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GOLDBERG, Judge:
Andres Gomez, a resident of Miami, Florida, is legally blind. In July 2013,
Gomez stopped at an automated teller machine (“ATM”) near his home, inserted a
card and headset, and prepared to do business using the machine’s voice guidance
system. Nothing happened. Instead of giving audible instructions as required by
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101−12213 (2012),
the machine spewed only silence, and Gomez was unable to finish a transaction.
Three months later, Gomez sued the ATM’s owner, Dade County Federal
Credit Union (“Dade”). He asked for an injunction that would force Dade to bring
its ATMs into compliance with the ADA. The district court dismissed the case,
however, and found that Gomez lacked constitutional standing to bring a claim.
We now affirm. While we commend the plaintiff’s effort to secure fair
treatment for the blind community, the law does not permit injunctive relief against
businesses whose noncompliance was unintentional, temporary, and isolated. See
28 C.F.R. § 36.211(b) (2014). Because Gomez suffered only an isolated harm, he
lacks standing to secure an injunction, and the case was rightly dismissed.
I.

BACKGROUND

A. The Americans with Disabilities Act
Congress passed the ADA in 1990 to solve a pressing problem: the
exclusion of disabled people from the public sphere. Throughout history,

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discriminatory barriers and overprotective rules kept the disabled from enjoying
services, programs, and jobs on equal footing with others. See 42 U.S.C.
§ 12101(a). The legislature sought to break the status quo by assuring “equality of
opportunity, full participation, [and] independent living” for the disabled through
“clear, strong, consistent, enforceable standards.” Id. § 12101(a)(7), (b)(2). These
rules apply to employers, local and state governments, and public
accommodations—a group that reflects the law’s sweeping mandate.
Title III of the ADA prohibits discrimination in public accommodations, and
gives specific guidance to that end. See id. § 12182. For example, the law orders
businesses “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 auxiliary aids and services.” Id. § 12182(b)(2)(A)(iii).
Businesses may derogate from this rule only if complying would cause an undue
burden. Furthermore, to flesh out the statute’s commands, the law authorizes the
Attorney General to craft regulations and set standards. Id. § 12186(b). The
Attorney General’s standards must accord with suggestions from the Architectural
and Transportation Barriers Compliance Board (the “Access Board”), a body of
expert appointees created by the Rehabilitation Act of 1973 § 502, 29 U.S.C.
§ 792(a). Id. § 12186(c).

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The Attorney General released the first ADA standards in 1991 and retooled
them effective March 15, 2011. See Nondiscrimination on the Basis of Disability
by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56,236,
56,237−38 (Dep’t of Justice Sept. 15, 2010) (“Final Rule”). The latest set, called
the 2010 Standards, was adopted from the Access Board’s 2004 ADA
Accessibility Guidelines. See id.; 36 C.F.R. pt. 1191 app. D (“2004 ADAAG”).
The 2004 ADAAG prescribe a variety of architectural and technical rules for
public facilities, and among these, rules for ATMs. These standards aim to help
people with visual impairments, and require that ATMs give users a modicum of
privacy, 2004 ADAAG § 707.4; that they be speech enabled, or “independently
usable by individuals with vision impairments” through a “standard connector or a
telephone handset,” id. § 707.5; and that they have raised, “tactilely discernable”
input keys and Braille instructions, among other specifications, id. §§ 707.6, 707.8.
Those who do not comply may fall subject to an injunction, or less often, to
monetary damages or civil penalties. See 42 U.S.C. § 12188(a), (b)(2). 1
1

Under the ADA, only the Attorney General may file civil suits for damages and
penalties. See 42 U.S.C. § 12188(b). And the Attorney General may sue only if he has cause to
believe that a business is engaged in a “pattern or practice of discrimination,” or if discriminatory
conduct “raises an issue of general public importance.” Id. § 12188(b)(1)(B). As a consequence,
those who violate the ADA face damages and penalties only rarely. Nat’l Council on Disability,
Implementation of the Americans with Disabilities Act 167−68 (2007) (noting limited
involvement of Justice Department in ADA litigation); Samuel R. Bagenstos, The Perversity of
Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1,
9−10 (2006) (remarking that Justice Department employs “only a small cadre of lawyers” to
enforce ADA(internal quotation marks omitted)); Casey L. Raymond, A Growing Threat to the
ADA: An Empirical Study of Mass Filings, Popular Backlash, and Potential Solutions Under
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Even so, the law recognizes that access measures may fail from time to time.
When snow falls on a wheelchair ramp, the ramp may be briefly impassable. See
Foley v. City of Lafayette, 359 F.3d 925, 927−28 (7th Cir. 2004). In a similar way,
a store aisle or sales counter may become cluttered with merchandise. See
Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1003−04 (9th Cir. 2015).
Because weather or wear or computer glitches may hamper access—and by no
fault of the business owner—the regulations “do[] not prohibit isolated or
temporary interruptions in service or access due to maintenance or repairs.” 28
C.F.R. § 36.211(b). The rule “is intended to clarify that temporary obstructions or
isolated instances of mechanical failure would not be considered violations of the
Act.” 28 C.F.R. pt. 36 app. C § 36.211. But “allowing obstructions or ‘out of
service’ equipment to persist beyond a reasonable period of time would violate [the
Act], as would repeated mechanical failures due to improper or inadequate
maintenance.” Id. The exception for temporary malfunctions is a narrow one.
B. Gomez Tests an ATM
Andres Gomez suffers from macular degeneration and is legally blind, as
noted above. He lives less than a mile from an ATM operated by the defendant
(the “Subject ATM”). Dade has a total of thirty-six machines in its network.
Titles II and III, 18 Tex. J. C.L. & C.R. 235, 257−59 (2012) (describing Justice Department’s
limited enforcement role). Thus the qui tam or private attorney general suit is the most common
form of enforcement under the ADA, but the only remedies there are injunctions, fees, and costs.
See 42 U.S.C. § 12188(a)(1) (incorporating by reference 42 U.S.C. § 2000a-3).
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In February 2012, technicians from Diebold Inc. upgraded the Subject ATM
to comply with the Attorney General’s 2010 Standards. About a year after the
upgrades, Dade employee Trayon Gaskins inspected the Subject ATM for ADA
compliance. He used “headphones and a debit card to access the voice guidance
system,” and completed a transaction. He also filled out a checklist indicating the
status of various parts of the machine, including the audio jack, the Braille plaque,
and the audio instructions. Gaskins said, in a sworn statement, that he
“encountered no difficulties or problems with the voice guidance system” when
testing the Subject ATM.
Then, on July 21, 2013, Gomez visited the Subject ATM and attempted a
transaction. He plugged in his headphones, which were “compatible with ATM
voice guidance technology,” but the voice guidance system did not work. As a
result, Gomez was unable to complete a transaction. Gomez also said an
investigation was performed on his behalf, which indicated that other ATMs in the
network were out of compliance. Gomez never said who the investigator was or
which ATMs had misfired.
Later that October, Dade branch manager Stephanie Miles again tested the
Subject ATM. She followed the same checklist that Gaskins had used in April,
and she found the voice guidance system was fully operational.

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C. Gomez Files Suit
On October 25, 2013, Gomez filed a class action in the Southern District of
Florida. The complaint alleged that the Subject ATM did not comply with ADA
standards. Rather than giving specific information about the alleged malfunction,
however, Gomez reported only that the voice guidance system failed sometime
after the 2010 Standards came into effect. 2 Gomez added that he planned to revisit
the Subject ATM in his effort to find ADA-compliant machines. For relief, Gomez
requested a permanent injunction requiring defendant to bring its ATMs into
compliance, along with costs and attorney’s fees.
Dade moved to dismiss the complaint for want of jurisdiction on February
13, 2014. Defendant argued that Gomez lacked standing because he failed to
allege a constitutional injury-in-fact. In support, Dade produced declarations from
Gaskins, Miles, and others showing that the Subject ATM complied with ADA
standards both before and after plaintiff’s test.
Gomez responded with his own declaration, which testified that he visited
the Subject ATM just after the motion to dismiss on February 27, 2014. This time,
the machine worked and Gomez was able to “complete a balance inquiry
transaction using voice guidance.” Gomez further declared that he tested a second

2

Though the Final Results became effective in March 2011, the communications
standards relevant to this case went into effect on March 15, 2012. See Final Rule at 56,237,
56,256.
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ATM about sixteen miles away from his home on the same day. He reported that
this ATM’s voice guidance system began when prompted, but “stopped during the
course of the transaction.”
The trial court granted the defendant’s motion and dismissed the complaint
on March 24, 2014. After weighing the parties’ evidence, the court concluded that
Gomez lacked constitutional standing to bring a claim. In the court’s view, Gomez
was not under imminent threat of injury. Dade’s declarations showed that the
Subject ATM complied with ADA standards before and after Gomez’s July 2013
visit, and hence it was unlikely Gomez would suffer another malfunction at the
Subject ATM in the future. The court also refused to credit plaintiff’s assertion
that other ATMs were out of compliance, because Gomez offered nothing to
corroborate the findings of his unnamed investigator. Finally, the court accorded
no weight to the allegation that a second ATM broke down after the suit began.
Because “standing is determined as of the time at which the plaintiff’s complaint is
filed,” Gomez could not create standing by alleging a malfunction four months
after the case began.
The court dismissed plaintiff’s case without prejudice, but Gomez did not
take the opportunity to amend and refile his complaint. Instead, he appealed.

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II.

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DISCUSSION

We must now decide whether the trial court erred to dismiss the complaint
for lack of standing. For reasons set forth below, we affirm.
The Constitution extends the federal judicial power to cases and
controversies arising under federal law. See U.S. Const. art. III, § 2. This
provision gives birth to the doctrine of constitutional standing, which permits
judicial redress only where plaintiff suffers the invasion of a legally protected
interest or “injury in fact,” and a court decision will remedy the harm that
defendant caused. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61 (1992).
In most suits, a plaintiff may prove injury-in-fact—and his personal stake in
the litigation—by alleging a past harm that the court can remedy. See City of Los
Angeles v. Lyons, 461 U.S. 95, 102−03 (1983). But when plaintiff sues for
injunctive relief, the law requires more. An injunction, by definition, seeks to stop
an ongoing injustice or to prevent future injury. So to claim standing for an
injunction, plaintiff must prove that he “sustained or is immediately in danger of
sustaining some direct injury as the result of the challenged . . . conduct and the
injury or threat of injury must be both real and immediate, not conjectural or
hypothetical.” Id. at 102 (internal quotation marks omitted). In Title III cases,
plaintiff must prove he is likely to suffer discrimination in the future, either
because he intends to return to a noncompliant establishment, or because

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defendant’s misconduct deterred his patronage. See Houston v. Marod Supermkts.,
Inc., 733 F.3d 1323, 1334−37 (11th Cir. 2013) (holding plaintiff who often passed
defendant’s store alleged intent to return and injury-in-fact); Kreisler v. Second
Ave. Diner Corp., 731 F.3d 184, 187−88 (2d Cir. 2013) (finding injury-in-fact
where plaintiff deterred from visiting diner with inadequate wheelchair access);
Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137−38 (9th Cir. 2002)
(finding injury-in-fact where plaintiff deterred from visiting store with architectural
barriers).
Here, the trial court weighed evidence from the parties’ declarations to
decide whether Gomez suffered an injury warranting an injunction. Plaintiff
claims this was a mistake. Though courts typically weigh evidence to discern
jurisdiction on motions to dismiss, the Eleventh Circuit makes an exception where
matters of statutory standing intertwine with merits issues. Lawrence v. Dunbar,
919 F.2d 1525, 1530 (11th Cir. 1990). When a question of standing is the same as
an issue presented on the merits, courts apply a summary judgment standard,
dismissing only if undisputed facts show that the plaintiff lacks standing. See id.
(applying summary judgment standard where Federal Tort Claims Act “scope of
employment” issue implicated standing and merits); see also Morrison v. Amway
Corp., 323 F.3d 920, 927−28 (11th Cir. 2003) (applying summary judgment
standard where Family Medical Leave Act “eligible employee” issue implicated

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standing and merits); Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256,
1266−67 (11th Cir. 1997) (applying summary judgment standard where Age
Discrimination in Employment Act “employer” issue implicated standing and
merits). To this end, Gomez claims that the matter of defendant’s compliance
bears both on constitutional injury-in-fact and defendant’s liability under the
statute. Thus in plaintiff’s view, we should review the motion to dismiss de novo
and apply a summary judgment standard to settle disputed facts.
But there is no need to fuss over these arguments. Even if we apply the
summary judgment standard, plaintiff still fails to allege an injury-in-fact. As
mentioned before, those who seek standing under Title III must show either that
they intend to return to a noncomplying public accommodation, or that defendant’s
inaction deterred plaintiff from visiting an offending site. See Houston, 733 F.3d
at 1334−37. Gomez cannot make either showing, because he cannot establish the
crucial fact underpinning both tests: Dade’s failure to comply with ADA rules.
The 2010 Standards list the traits of ADA-compatible ATMs in minute
detail. Some of these specifications, like the rule requiring tactile keys, describe
the physical attributes of ADA-worthy machines. See 2004 ADAAG § 707.6.
After a bank fits its ATMs to comply with such rules, the machines will likely
remain compliant unless the bank erects new barriers to access. But other
standards demand ongoing attention to ensure compliance. The rule requiring

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ATMs to have a voice guidance system falls in this category, because once a voice
system is installed, the program may occasionally malfunction and require
maintenance. See id. § 707.5. Periodic hurdles may thus arise not as a result of
negligence or bad intent, but as a natural attendant of the access-enhancing
solution. To ensure that periodic breakdowns are not punished as ADA violations,
the regulations permit “isolated or temporary interruptions in service or access due
to maintenance or repairs,” 28 C.F.R. § 36.211(b), as long as the interruption does
not “persist beyond a reasonable period of time,” id. at pt. 36 app. C § 36.211.
The defendant falls within this narrow exception. In the complaint, Gomez
alleged just one instance when a Dade voice-guidance system failed: the Subject
ATM’s misfire in July 2013. The complaint and declarations offer no other
concrete examples of a malfunction prior to suit. This one breakdown, standing
alone, is the very essence of an “isolated or temporary” interruption exempt from
liability. 28 C.F.R. § 36.211(b). To lend this view more credence, defendant
produced statements that the ATM was retrofitted and ready for service before and
after July 2013. Employees also declared that they followed company policy to
keep all ATMs in working order, and though Gomez claims the policy was
window-dressing, he offers no evidence in support. Because he marshalled proof
of just one ATM malfunction—but no evidence regarding other technical
glitches—Gomez has not raised a genuine dispute of fact regarding defendant’s

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ADA compliance. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact . .
. is genuinely disputed must support the assertion by citing to particular parts of
materials in the record . . . .”); AFL-CIO v. City of Miami, 637 F.3d 1178, 1191−92
(11th Cir. 2011) (dismissing where plaintiff failed to adduce evidence proving
conspiracy to infringe constitutional rights). The trial court was correct to dismiss
the case for lack of standing.
Plaintiff’s other allegations do not move the dial. Gomez claimed, for
instance, that additional ATMs malfunctioned when tested in July 2013. Yet
plaintiff’s complaint and declaration do little to support the claim: The pleadings
do not reveal who tested the other ATMs for Gomez or where those machines were
located, and though plaintiff’s declaration confirms that the Subject ATM broke
down once prior to suit, the document does not mention any other pre-suit
malfunctions. Without evidence to support his side of the story, Gomez cannot
refute that defendant’s other ATMs complied with the ADA. See Fed. R. Civ. P.
56(c)(1)(A).
Gomez also claimed standing based on the malfunction of a second ATM
following the motion to dismiss. But again, even conceding that the machine
actually failed, Gomez has not shown this was anything more than an isolated
interruption in service. See 28 C.F.R. § 36.211(b). Furthermore, the law requires
plaintiffs to prove that they had standing at the time the complaint was filed.

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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180
(2000) (holding standing established at “outset of the litigation”); Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003)
(holding standing established at time complaint is filed); Cleveland Branch,
NAACP v. City of Parma, 263 F.3d 513, 524−25 (6th Cir. 2001) (same). If Gomez
wished to claim standing based on the malfunctions of the Subject ATM and
second ATM together, he could have amended his complaint to include both
examples. Gomez declined to do so, however, even though the trial court
dismissed his case without prejudice.
Finally, the court notes a key difference between this case and Sawczyn v.
BMO Harris Bank National Ass’n, 8 F. Supp. 3d 1108 (D. Minn. 2014), which
Gomez recommended to the trial court.3 There, plaintiff visited two ATMs prior to
suit and found that neither had a functioning voice system. Id. at 1110, 1112.
During litigation, defendant argued that the claim was moot because it fixed four
voice systems after learning they were broken. Id. at 1113−14. The court refused
to dismiss, however, because plaintiff planned to return to the offending ATM and
the bank could not prove that it repaired all outstanding compliance issues. Id.
Sawczyn did not mention § 36.211(b) or analyze its effect on injury-in-fact.
3

Gomez cited Sawczyn not to prove he had constitutional standing, but to show that his
claim was not moot. We do not address mootness because we agree with the trial court that
Gomez lacked standing to bring his case. We thus distinguish Sawczyn to the extent it found
plaintiff had standing to maintain an ADA action.
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By contrast, Gomez alleged that he visited one machine one time before
bringing suit. And unopposed evidence shows the Subject ATM worked both
before and after plaintiff’s visit. Unlike Sawczyn, where plaintiff alleged multiple
malfunctions before filing his case, Gomez alleged just one service interruption.
This case falls squarely within the saving ambit of § 36.211(b).
III.

CONCLUSION

We again commend plaintiff’s effort to enforce the ADA on behalf of the
blind community. As the statute is written, private citizens bear the brunt of the
enforcement burden, and Mr. Gomez is doing his part.
Nevertheless, even those with the best intentions must satisfy the minima of
constitutional standing to maintain a claim. Plaintiff’s threadbare allegations do
not clear the bar, and as a consequence, the trial court correctly dismissed the case
for lack of jurisdiction.
AFFIRMED.

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