United States Court of Appeals

For the First Circuit

No. 04-2086

DISABLED AMERICANS FOR EQUAL ACCESS, INC.

Plaintiff,

EDUARDO UMPIERRE,

Plaintiff, Appellant,

v.

FERRIES DEL CARIBE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Lorenzo Palomares Starbuck, with whom Lorenzo J. Palomares,

P.S.C., Lawrence J. McGuinness, Lawrence J. McGuinness, P.A., Ian

T. Kravitz, William D. Tucker, and Law Offices of William D.

Tucker, P.A., were on brief, for appellant. 

Dora M. Peñagarícano, with whom McConnell Valdés was on brief,

for appellee.

April 26, 2005
1Plaintiff Disabled Americans for Equal Access, Inc.,

voluntarily dismissed its complaint against Ferries on behalf of

its members and is no longer a party to the action or the appeal.

242 U.S.C. § 12182(b)(2)(A)(iv) prohibits the "failure to

remove architectural barriers . . . in existing facilities, and

transportation barriers in existing vehicles and rail passenger

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LIPEZ, Circuit Judge. In July 2003, Plaintiff-Appellant

Eduardo Umpierre, who is wheelchair-bound, and Plaintiff Disabled

Americans for Equal Access, Inc., on behalf of its members,1 filed

an amended complaint against Defendant-Appellee Ferries del Caribe,

Inc. ("Ferries") seeking injunctive relief, attorney's fees, and

costs for violations of Title III of the Americans with

Disabilities Act of 1990 as amended ("ADA"), 42 U.S.C. §§ 12181-89,

and a subset of its implementing regulations, 28 C.F.R. §§ 36.302-

305. Specifically, the complaint alleged that: 

• Ferries operates a cruise vessel subject to

the mandates of Title III that govern public

accommodations, see 42 U.S.C. § 12182(a),

and public transportation provided by a

private entity, see 42 U.S.C. § 12184(a); 

• Umpierre was subjected to discrimination and

is likely to suffer discrimination in the

future through lack of access to "full and

equal enjoyment" of the goods, services, and

other privileges available aboard Ferries'

vessel and at its land-based facilities (for

example, because of a lack of ramps or

accessible restrooms), see 42 U.S.C.

§ 12182(a); and

• Ferries' failure to remove barriers to

accessibility to the extent such removal is

"readily achievable," 42 U.S.C.

§ 12182(b)(2)(A)(iv), violates Title III of

the ADA and its implementing regulations.2
cars used by an establishment for transporting individuals . . . ,

where such removal is readily achievable." 42 U.S.C. § 12181(9)

defines "readily achievable" as "easily accomplishable and able to

be carried out without much difficulty or expense." If removal of

barriers is not "readily achievable," 42 U.S.C. § 12182(b)(2)(A)(v)

requires delivery of goods and services by alternate means. See

also 28 C.F.R. § 36.305.

3The record contains no explanation of the reason for this

unusual motion practice.

4While the district court explicitly mentioned regulations

governing only "new construction" and "barrier removal," we note

that 28 C.F.R. Pt. 36, Subpart D, which sets forth regulations

governing new construction by public accommodations, also includes

regulations for the "alteration" of public accommodations.

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On August 19, 2003, Ferries filed a motion for summary

judgment, followed three days later by a motion to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(6).3 On July 14, 2004,

the district court granted Ferries' motion to dismiss the

complaint, holding that "an ADA accessibility claim against cruise

ships is not proper due to the lack of ADA cruise ship

regulations." Disabled Americans for Equal Access, Inc. v. Ferries

Del Caribe, Inc., 329 F. Supp. 2d 209, 211 (D.P.R. 2004).

Umpierre timely appealed, arguing that the district court

improperly based its decision on the non-existence of "regulatory

guidelines with respect to both new construction and barrier

removal for cruise ships." Id. at 210 (emphasis added).4 Umpierre

points out that he raised no claim under the ADA or its regulations

regarding the new construction or alteration of public

accommodations. See 42 U.S.C. § 12183 (a)(2); 28 C.F.R. Pt. 36,
528 C.F.R. § 36.304 "requires the removal of architectural

barriers . . . in existing facilities, where such removal is

readily achievable." 28 C.F.R. Pt. 36, App. B at 700. By

contrast, the regulations contained in 28 C.F.R. Pt. 36, Subpart D,

which govern new construction and alterations, "do[] not require

alterations; [they] simply provide[] that when alterations are

undertaken, they must be made in a manner that provides access."

Id. at 717. Pursuant to 28 C.F.R. § 36.402(b)(1), "[a]lterations

include, but are not limited to, remodeling, renovation,

rehabilitation, reconstruction, historic restoration, changes or

rearrangement in structural parts or elements, and changes or

rearrangement in the plan configuration of walls and full-height

partitions."

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Subpart D. Rather, citing policy statements of the Departments of

Justice and Transportation, he argues that cruise ships are subject

to statutory and regulatory mandates applicable to all forms of

public accommodations and public transportation, 42 U.S.C.

§§ 12181-89; 28 C.F.R. §§ 36.302-305, including requirements for

barrier removal, 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R.

§ 36.304, regardless of whether they are also subject to additional

regulations governing new construction or alteration under 28

C.F.R. Pt. 36, Subpart D.5 Umpierre also argues that the district

court improperly dismissed his claims relating to Ferries' landbased, non-vessel facilities. Ferries counters by arguing that the

district court's decision should be affirmed on the merits or, in

the alternative, that Umpierre lacks standing to bring his claims.

Ferries also raises the argument for the first time on appeal that

even if Umpierre otherwise states a claim, Title III of the ADA is

inapplicable to foreign-flagged ships, such as its cruise vessel.
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We review the dismissal of a complaint pursuant to Fed.

R. Civ. P. 12(b)(6) de novo, "accept[ing] as true the factual

allegations of the complaint, constru[ing] all reasonable

inferences therefrom in favor of the plaintiffs, and determin[ing]

whether the complaint, so read, limns facts sufficient to justify

recovery on any cognizable theory of the case." Beddall v. State

St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). 

We first address Ferries' assertion that Umpierre lacks

standing because "it is impossible to experience discrimination

covered by the ADA without traveling aboard [Ferries' vessel]."

"[T]he irreducible constitutional minimum of standing" includes the

requirement that the plaintiff have suffered an "injury in fact"

that is "actual or imminent." Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (internal quotation marks and citations

omitted). In the context of Title III of the ADA, a plaintiff

generally must "show a real and immediate threat that a particular

(illegal) barrier will cause future harm." Dudley v. Hannaford

Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) (explaining that this

standard "has been adapted from generic Supreme Court precedents

discussing whether a plaintiff has standing to protest a particular

injury"). "[A] disabled individual who is currently deterred from

patronizing a public accommodation due to a defendant's failure to

comply with the ADA" and "who is threatened with harm in the future

because of existing or imminently threatened noncompliance with the
6Ferries refers us to documents outside the pleadings in an

attempt to prove that Umpierre's allegations in the complaint are

false, thereby ignoring the standard of review on appeal from a

Rule 12(b)(6) motion to dismiss.

7We have recognized the similarity between the standing

requirement and the standard for determining the availability of a

private right of action to enforce Title III. Dudley, 333 F.3d at

306. The enforcement provision of Title III states that "[n]othing

in this section shall require a person with a disability to engage

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ADA" suffers actual or imminent harm sufficient to confer standing.

Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th

Cir. 2002). 

Umpierre alleges in his complaint that he 

visited [Ferries'] vessel on several occasions

in 2001, 2002[,] and 2003, and at that time

was subjected to discrimination . . . due to

the existence of various barriers to

accessibility at Defendant's place of public

accommodation and aboard Defendant's vessel.

Plaintiff intends to return to the Defendant's

place of public accommodation and cruise

vessel to avail himself of the goods and

services offered therein.

Furthermore, Umpierre alleges that the barriers to accessibility

"have effectively denied and/or diminished Plaintiff's ability to

visit and/or use the property and have endangered Plaintiff's

safety and the safety of other disabled persons who also visit

and/or may want to visit the property." Viewing the facts alleged

in Umpierre's complaint as true, as we must when reviewing a Rule

12(b)(6) dismissal,6 we conclude that Umpierre has alleged "a real

and immediate threat" of discrimination by Ferries sufficient to

confer standing to sue. Dudley, 333 F.3d at 306.7 
in a futile gesture if such person has actual notice that a person

or organization covered by [Title III] does not intend to comply

with its provisions." 42 U.S.C. § 12188(a)(1). Section

12188(a)(1) thus "negates any requirement that a disabled person

engage in a futile gesture to establish the existence of a

discriminatory policy or practice" for purposes of bringing suit

under Title III. Dudley, 333 F.3d at 306. Accordingly, Umpierre

need not have engaged in the "futile" -- indeed, allegedly

hazardous -- "gesture," 42 U.S.C. § 12188(a)(1), of actually

traveling aboard Ferries' cruise vessel in order to establish

either his standing to sue or a private right of action under Title

III. 

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Next, Ferries advances no argument that its land-based

facilities are exempt from the statutory and regulatory mandates of

the ADA; it argues only that it maintains no land-based facilities.

Resolution of this factual dispute awaits the development of a

record on remand. Taking the allegations in the complaint as true,

Umpierre states a claim for relief under Title III of the ADA and

its implementing regulations with respect to Ferries' land-based

facilities. 

We turn, then, to Ferries' argument that Title III of the

ADA does not apply to foreign-flagged ships. Ordinarily, we treat

legal theories raised for the first time on appeal as waived.

United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a

bedrock rule that when a party has not presented an argument to the

district court, [he] may not unveil it in the court of appeals.").

Nevertheless, we take judicial notice of the fact that the Supreme

Court recently heard oral argument on the precise question whether

Title III of the ADA applies to foreign-flagged cruise ships, and
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that a decision by the Supreme Court is pending. Spector v.

Norwegian Cruise Line Ltd., No. 03-1388 (S. Ct. argued Feb. 28,

2005). On remand, the district court will have to apply that

decision of the Supreme Court when it is rendered. Therefore, we

instruct the district court to defer further proceedings until the

Supreme Court's decision in Spector is available. The district

court shall then permit development of the record, if consistent

with the Supreme Court's holding, on the factual issue of whether

Ferries operates a foreign-flagged cruise vessel. 

Finally, we note that the district court appears to have

treated Umpierre's vessel-related claims as alleging only

violations of regulations governing the new construction or

alteration of cruise ships specifically. The district court

correctly noted that no such regulations currently exist. See

Spector v. Norwegian Cruise Line Ltd., 356 F.3d 641, 650 n.10 (5th

Cir.), cert. granted, 125 S. Ct. 26 (2004) ("Amazingly, now more

than a decade since the ADA's passage, [the Departments of Justice

and Transportation] have yet to issue regulations specific to

cruise ships."). However, Umpierre's complaint makes no

allegations relating to new construction or alteration. Instead,

Umpierre alleges violations of the statutory provisions of the ADA

and its implementing regulations that require removal of existing

barriers by all public accommodations and public transportation

apart from regulations that may govern any new construction or
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alteration. Therefore, if the legal or factual resolution of the

foreign-flagged ship issue does not preclude application of Title

III to Ferries' cruise vessel, the district court should also

consider on remand whether Umpierre's vessel-based statutory and

regulatory claims under 42 U.S.C. §§ 12181-89 and 28 C.F.R.

§§ 36.302-305 may proceed despite the absence of a separate

category of regulations governing the new construction and

alteration of cruise ships. See, e.g., Stevens v. Premier Cruises,

Inc., 215 F.3d 1237, 1241 n.6 (11th Cir. 2000) (per curiam) (under

plain language of the ADA, "those parts of a cruise ship which fall

within the statutory enumeration of public accommodations are

themselves public accommodations for the purposes of Title III,"

and Department of Justice's interpretation of Title III reaches the

same conclusion). 

The decision of the district court dismissing the

complaint with prejudice is vacated, and this case is remanded for

further proceedings consistent with this opinion. Costs to

appellant.