UPDATE – Well, that didn’t take long. Less than nine months after the Eleventh Circuit overturned the District Court judgment in favor of the Plaintiff, Juan Carlos Gil, it granted Mr. Gil’s petition for rehearing en banc via an opinion published on December 28, 2021. In two, tersely-worded paragraphs, the per curiam decision vacated the Circuit Court’s earlier opinion along with the 2017 District Court opinion by which Mr. Gil had originally prevailed. Additionally, the appeal was dismissed and the case was remanded to the District Court to be dismissed as moot. The Circuit Court thus restored the parties to the status quo existing before Mr. Gil filed his lawsuit back in 2016.
The given reason for this latest twist in an already-circuitous litigation saga (for example, refer to my above discussion on the Eleventh’s earlier Dunkin’ Donuts opinion which appears irreconcilable with its April, 2021 (now vacated) ruling in favor of Winn-Dixie): the expiration of the injunction requiring Winn-Dixie to make its website accessible while the appeal was pending (by its terms, the injunction was to only last for three years) along with the “absence of any formal award of declaratory relief” purportedly rendered Winn-Dixie’s appeal moot.
Considering that the object of reported appellate decisions is to increase predictability for practitioners and litigants by outlining the reasoning for why a given set of facts results in a particular legal ruling, the Circuit Court’s succinct conclusion on mootness feels abrupt and unsatisfying. The vacation of both the reversal of the District Court’s judgment in favor of the Plaintiff along with the underlying judgment itself creates a precedential void within the Eleventh Circuit. For Mr. Gil and Winn-Dixie, this void engenders uncertainty with respect to the modifications already made to the grocery chain’s website. Is Winn-Dixie free to reverse the changes made to accommodate Mr. Gil and others similarly situated, and if so, what will be the outcome if Mr. Gil (or anyone else) again pursues litigation based upon the same claims of discrimination? And what if Winn-Dixie adds functionality to its website beyond that which existed at the time of Mr. Gil’s prior claims? Will the grocery chain similarly need to ensure the same level of accessibility for those new features, even in the absence of a binding injunction?
Winn-Dixie apparently disagrees with the Eleventh Circuit’s mootness conclusion as per the grocery chain’s intention to pursue its own motion for rehearing en banc, as reported by Seyfarth Shaw, LLP. Despite the span of time which has elapsed since Mr. Gil initially filed suit more than five years ago, the parties as well as interested practitioners and their clients continue to await finality in this important legal area. I will continue to update this post as further developments occur.