     Case: 14-11122      Document: 00512985635         Page: 1    Date Filed: 03/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11122                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 30, 2015
BILLY WILLIAMS,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

ERIC HOLDER; THOMAS E. PEREZ; UNITED STATES DEPARTMENT OF
JUSTICE,

              Defendants - Appellees




                   Appeal from the United States District Court
                for the Northern District of Texas, Dallas Division
                          U.S.D.C. No. 3:13-CV-2179-O


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant, pro se, filed suit under the Administrative Procedure Act
(APA) challenging Appellees’ interpretation of Section 12182(a) of Title III of
the Americans with Disabilities Act (ADA). The district court dismissed the
suit for lack of subject matter jurisdiction. We AFFIRM.
                                             I.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-11122
      This dispute centers on the Appellant’s claim that the Appellees’
incorrect interpretation of the ADA has caused, and is causing, him ongoing
harm. Billy Williams (Williams) is an allegedly disabled individual suffering
from asthma and hypersensitivity to secondhand tobacco smoke. On June 11,
2013, he filed suit against Eric Holder, Thomas E. Perez, and the United States
Department of Justice (DOJ) (collectively the Government) under the APA, 5
U.S.C. § 702. Williams alleged that he filed a complaint with the Texas Lottery
Commission asking that all of its lottery sales outlets be required to prohibit
smoking under the ADA, but the Texas Lottery Commission declined to enforce
a blanket smoking ban on all of its sales outlets, citing a technical assistance
letter by the Assistant Attorney General for the Civil Rights Division of the
DOJ. The technical assistance letter stated that “the ADA . . . d[id] not require
entities to enact legislation or to adopt policies to ban smoking” and that “[t]he
ADA require[d] the analysis of the requested modifications to be made on a
case-by-case basis.” Williams also asserted that as the executive director of an
organization named GASP of Texas, he submitted a complaint to the State of
Kansas to seek a smoking ban in its casinos. A law firm representing two
Kansas casinos submitted a letter to the Director of Kansas Gaming Facilities,
arguing that the ADA did not require a mandatory smoking ban.
      In his complaint, Williams challenged the Government’s statutory
interpretation of the ADA generally, and 42 U.S.C. § 12201(b) in particular, in
technical assistance letters that the Government issued to covered entities. He
also challenged the Government’s failure to impose a smoking ban on all
covered entities. He claimed that the Government’s interpretation results in
intentional discrimination against persons impacted by smoking.          He also
claimed that the Assistant Attorney General violated 28 C.F.R. § 35.190(a) by
failing to provide proper guidance to the U.S. Department of Transportation
on smoking policies.
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                                        No. 14-11122
          On November 18, 2013, the Government moved to dismiss Williams’s
complaint for lack of subject matter jurisdiction or, in the alternative, for
failure to state a claim upon which relief can be granted. In response, Williams
filed a motion for summary judgment, arguing that a total smoking ban should
be enforced under the ADA because there is no safe level of secondhand smoke.
The       Magistrate   Judge     (MJ)    issued    its   Findings,     Conclusions,      and
Recommendation (FCR) recommending that the Government’s motion to
dismiss be granted and Williams’s motion for summary judgment denied. With
respect to the motion to dismiss, the MJ agreed with the Government that the
court lacked jurisdiction to compel them to take enforcement actions against
public accommodations that allegedly violated the ADA or to issue technical
assistance letters. The MJ also concluded that dismissal for failure to state a
claim was appropriate because the DOJ’s reading of § 12201(b) as permitting,
but not requiring, a total ban on smoking was consistent with the statutory
text. 1
          Williams filed objections to the FCR, challenging the reading of his
complaint as seeking a total ban on smoking. He argued that he sought to have
the Government interpret the ADA as requiring a total ban if a request is made
and if the facility cannot affirmatively prove that a ban would fundamentally
alter what it offers. The district court conducted a de novo review of the
portions of the FCR to which Williams objected and adopted the FCR. Williams
appeals that judgment. 2




         The MJ also concluded that the court had jurisdiction to review the DOJ’s global
          1

interpretation of the ADA, but that because Williams failed to state a claim upon which relief
could be granted, the complaint must still be dismissed.
       2 Williams does not appeal the denial of his motion for summary judgment.

                                              3
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                                  No. 14-11122
                                      II.
      We review 12(b)(1) and 12(b)(6) motions to dismiss de novo. United
States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012); Coleman v.
Sweetin, 745 F.3d 756, 763 (5th Cir. 2014).
      After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the relevant statutes, applicable state and federal case
law, and the MJ’s FRC as adopted by the district court, we AFFIRM the district
court’s judgment dismissing Appellant’s claims against Defendant-Appellee
and adopt its analysis in full.




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