The Ninth Circuit decided yesterday that that you cannot moot a Title III case by keeping the challenged policy and making an exception only for the plaintiff.

In Butler v. WinCo Foods, LLC, — Fed. App’x —, 2015 WL 3377837 (May 26, 2015), the plaintiff had challenged the defendant grocery store’s service animal policy. After the store offered the plaintiff an individual exception to the policy, the District Court dismissed the case as moot. In today’s decision, the Ninth Circuit reversed, holding that WinCo had not met its burden to show that it was “‘absolutely clear’ that it ‘could not reasonably be expected’ to revoke the exception or continue to enforce the allegedly improper policy against” the plaintiff.

WinCo proffers the declaration of its manager, Steve Behn, who states that a memorandum is posted in the breakroom informing employees of the exception; that employees are being trained to grant Butler the exception; and that WinCo “has no intention of revoking the exception to the policy.” However, WinCo’s allegedly improper service animal policy remains in place, and WinCo maintains the position that the policy need not be changed. And, although WinCo employees are presently being trained to grant Butler an exception to the policy, it is not “absolutely clear” that such training cannot reasonably be expected to cease.

Butler, slip op. at 3.

Congratulations to Amy Vandeveld, the plaintiff’s attorney. CREEC wrote an amicus brief in support of Ms. Butler, which was joined by our friends at the American Association of People with Disabilities, The Disability Law & Advocacy Center of Tennessee, the Disability Rights Education And Defense Fund, Disability Rights Texas, the Judge David L. Bazelon Center For Mental Health Law, and Legal Aid Society – Employment Law Center.