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The law is by now well settled in the United States Court of Appeals for the Eleventh Circuit that a legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed. The Federal Rules of Appellate Procedure plainly require that an appellant's brief contain, under appropriate headings and in the order indicated a statement of the issues presented for review. Fed. R. App. P. 28(a)(5).
The case centered around the inaccessibility of Southwest's web site, Southwest.com, to individuals who are visually impaired and use the Internet through a special software program called a "screen reader." Some features of Southwest.com make it very difficult for the visually impaired to access using a screen reader. The plaintiffs, Access Now, Inc. and Robert Gumson, a visually impaired individual, claim that this limitation places Southwest.com in violation of Title III of the ADA, which requires privately operated "places of public accommodation" to be accessible to disabled individuals. The district court dismissed their claim. They appealed.
May the court address the merits of the case notwithstanding the fact that Access Now, Inc. and Gumson presented a case that was wholly different from the one they brought to the district court?
The instant court found that Access Now, Inc. and Gumson presented the instant court with a case that was wholly different from the one they brought to the district court. Specifically, they had not appealed from the determination that the airline's website was not a place of public accommodation under Title III. Rather, their appellate brief, for the first time, argued that the airline as a whole was a place of public accommodation because it operated a "travel service," and that it had violated Title III precisely because of the web site's connection to the airline's "travel service." The instant court concluded that this case was not one of the "exceptional" ones in which it should elect to entertain a new theory and argument. The appeal was dismissed.