Seyfarth synopsis:  Winn-Dixie has asked the Eleventh Circuit to recall its decision to dismiss the appeal and underlying lawsuit as moot and that the decision be reconsidered by a full panel of Eleventh Circuit judges.

A few weeks ago we reported on the Eleventh Circuit’s decision to dismiss as moot the appeal filed by Winn-Dixie challenging a district court’s finding that the grocery retailer had violated the ADA by having an inaccessible website.  In its decision, the Eleventh Circuit didn’t just dismiss the appeal and its prior decision reversing the district court.  It also vacated the district court’s judgment for Plaintiff and remanded the case to the district court with an order that the district court dismiss the case as moot. The Eleventh Circuit’s action to dismiss the district court’s prior judgment on grounds of mootness is very surprising as the case was not moot at the time of the district court’s judgment and issuance of an injunction.  The appeal to the Eleventh Circuit only became moot because – by the time the Eleventh Circuit issued a decision on the appeal more than three years after the district court decided that Winn-Dixie had violated the ADA — the district court’s injunction requiring Winn-Dixie to make its website accessible had already expired and the website had been made accessible.

The Eleventh Circuit’s decision to dismiss the entire case as moot put an end to a five-year litigation saga — or so we thought.  However, several days after the decision, Winn-Dixie filed a motion to recall and stay the decision so that it can file a petition for rehearing en banc (i.e., a full panel of judges) on whether the appeal and underlying case are moot.  In the motion, Winn-Dixie argued that they “are not moot because, among other things, formal declaratory relief was entered below and the issue is capable of repetition, yet evading review, and the panel’s order conflicts with decisions of the United States Supreme Court and this Court and involves questions of exceptional importance concerning the ability of litigants to seek appellate review after a full trial on the merits.”  Plaintiff Gil opposed this motion.  How the Eleventh Circuit rules on Winn-Dixie’s forthcoming petition for rehearing en banc is to be determined, but only a tiny fraction of such petitions are usually granted.

In sum, the Winn-Dixie saga continues into its sixth year, underscoring the larger point that litigating these cases requires a long term commitment from both sides to paying hefty attorneys’ fees which are not always recoverable.  While plaintiffs in ADA lawsuits will be awarded reasonable fees and costs if they secure a judgment in their favor, in this rather unusual case, the fees that had been awarded to plaintiff Gil may be in jeopardy if the Eleventh Circuit’s order to vacate the district court’s judgment and dismiss the case as moot stands.  (This is somewhat ironic because plaintiff Gil had argued in his petition for rehearing en banc that only the appeal — not the district court’s judgment – was moot, but the Eleventh Circuit wound up vacating both and placing Gil’s fees in jeopardy.)  Unlike plaintiffs in ADA Title III cases, defendants can only recover fees if the claims on which they prevailed were frivolous or groundless – a more demanding standard.  The prospect of high defense costs is one reason why so many ADA Title III resolve early.