                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TRICIA LOCKETT,                               No. 05-56483
                Plaintiff-Appellant,
                v.                               D.C. No.
                                              CV-02-08833-RJK
CATALINA   CHANNEL EXPRESS, INC.,
                                                 OPINION
               Defendant-Appellee.
                                         
        Appeal from the United States District Court
           for the Central District of California
         Robert J. Kelleher, Senior Judge, Presiding

                    Argued and Submitted
              June 4, 2007—Pasadena, California

                      Filed August 9, 2007

 Before: Cynthia Holcomb Hall and Consuelo M. Callahan,
   Circuit Judges, and James L. Robart,* District Judge.

                  Opinion by Judge Callahan;
                    Dissent by Judge Hall




 *The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.

                               9535
            LOCKETT v. CATALINA CHANNEL EXPRESS        9537


                        COUNSEL

Russell C. Handy, Center for Disability Access, LLP, of San
Marcos, California, for plaintiff-appellant Tricia Lockett.

Peter S. Forgie, Forgie & Leonard, LLP, of Santa Monica,
California, for defendant-appellee Catalina Channel Express,
Inc.
9538         LOCKETT v. CATALINA CHANNEL EXPRESS
                          OPINION

CALLAHAN, Circuit Judge:

   Catalina Channel Express (“CCE”) operates a ferry
between Long Beach and Catalina Island. In response to
requests by a frequent passenger for an area free of animal
dander, CCE adopted a policy of excluding animals from the
Commodore Lounge, a separate and more expensive section
of the ferry. Tricia Lockett is legally blind and uses a service
animal, a guide dog, to assist her. On September 2, 2002,
Lockett requested a ticket in the Commodore Lounge, but
CCE refused to sell her a ticket because it would not allow her
to take her guide dog into the area. Two weeks later CCE
changed its policy, but two months later Lockett filed this
lawsuit alleging that CCE violated the Americans with Dis-
abilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. On cross-
motions for summary judgment, the district court granted
summary judgment for CCE. We affirm on the narrow ground
that CCE, when suddenly faced with a possible threat to the
health and safety of its passengers, made a one-time reason-
able judgment under 28 C.F.R. § 36.208 while it investigated
the competing interests.

                               I

   CCE operates a public ferry boat service between Long
Beach and Catalina Island. The trip takes an hour each way.
In addition to the general passenger seating area, the Commo-
dore Lounge, located on the second deck, serves as a semi-
private sitting area for a small number of passengers who pay
an additional ten dollars each way for access. The Commo-
dore Lounge has leather seats that slightly recline and have
tray tables and head rests. Also, Commodore Lounge passen-
gers have the privilege of priority boarding and are served a
complimentary drink.
              LOCKETT v. CATALINA CHANNEL EXPRESS                9539
   In 2000, CCE received a request for a dander-free zone
from a frequent passenger who claimed to be allergic to ani-
mals. CCE determined that the Commodore Lounge was the
only area on the ferry where passengers could be effectively
insulated from contact with animals and made dander-free.1 In
early 2001, CCE instituted a policy prohibiting all animals,
including service animals, from the Commodore Lounge.

   Lockett is legally blind and uses a service animal, a guide
dog, to assist her in travel and mobility. On September 2,
2002, she sought to purchase a ticket to travel on the ferry to
Catalina Island in the Commodore Lounge. CCE declined to
sell Lockett a ticket for the Commodore Lounge because it
did not permit any animals, even guide dogs, in the Commo-
dore Lounge. CCE did sell Lockett a general passage ticket
and Lockett traveled to Catalina Island and back to Long
Beach in the main seating area.

   CCE changed its animal policy two weeks later to allow
service animals in the Commodore Lounge. CCE estimates
that now service animals are brought into the Commodore
Lounge once or twice a year.

                                  II

   On November 18, 2002, Locket filed a complaint in the
United States District Court for the Central District of Califor-
nia seeking damages and injunctive relief under the ADA,
certain California statutes, and common law. Lockett stated
that the experience of being denied a ticket to the Commodore
Lounge was “embarrassing and frustrating and humiliation
[sic].”
  1
   Although the district court observed that the parties disagreed on
whether the case concerned architectural barriers as defined under the
ADA standards, it declined to decide the case on that issue. We do not
address any issue concerning architectural barriers because the parties
have not raised any such issue on appeal.
9540               LOCKETT v. CATALINA CHANNEL EXPRESS
   In the fall of 2004, the parties filed motions for summary
judgment. On August 24, 2005, the district court entered an
order denying Lockett’s motion for summary judgment and
granting CCE’s motion for summary judgment. The district
court rejected Lockett’s contention that CCE violated 42
U.S.C. § 12182(b)(1)(A)(ii) in failing to modify its policies to
permit service animals into the Commodore Lounge.2 It held
that CCE had provided Lockett with “different and separate
accommodations” as allowed by 42 U.S.C. § 12182(b)(1)
(A)(iii).3 As a separate basis for granting CCE summary judg-
ment, the district court held that CCE’s refusal to admit
Lockett’s service animal to the Commodore Lounge was per-
missible under 28 C.F.R. §§ 36.208, 36.301(a), and 36.302(c)
based on health and safety concerns. Lockett filed a timely
appeal.

  2
   42 U.S.C. § 12182(b)(1)(A)(ii) reads:
      (ii)    Participation in unequal benefit
      It shall be discriminatory to afford an individual or class of indi-
      viduals, on the basis of a disability or disabilities of such individ-
      ual or class, directly, or through contractual, licensing, or other
      arrangements with the opportunity to participate in or benefit
      from a good, service, facility, privilege, advantage, or accommo-
      dation that is not equal to that afforded to other individuals.
  3
   42 U.S.C. § 12182(b)(1)(A)(iii) reads:
      (iii)   Separate benefit
      It shall be discriminatory to provide an individual or class of indi-
      viduals, on the basis of a disability or disabilities of such individ-
      ual or class, directly, or through contractual, licensing, or other
      arrangements with a good, service, facility, privilege, advantage,
      or accommodation that is different or separate from that provided
      to other individuals, unless such action is necessary to provide
      the individual or class of individuals with a good, service, facil-
      ity, privilege, advantage, or accommodation, or other opportunity
      that is as effective as that provided to others.
             LOCKETT v. CATALINA CHANNEL EXPRESS            9541
                               III

   As noted by the district court, pursuant to Federal Rule of
Civil Procedure 56(c), summary judgment is proper only
where “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” We review the district court’s grant of summary judg-
ment for CCE de novo. Oregon Paralyzed Veterans of Amer-
ica v. Regal Cinemas, Inc., 339 F.3d 1126, 1130 (9th Cir.
2003). We “must determine, viewing the evidence in the light
most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Id. at 1131.

                               IV

   [1] It is undisputed that Lockett is a member of a protected
class of disabled persons under 42 U.S.C. § 12102(2). In light
of the purposes of the ADA, CCE’s refusal to sell Lockett a
ticket to the Commodore Lounge cannot be justified as a sep-
arate arrangement under 42 U.S.C. § 12182(b)(1)(A)(iii). This
subsection allows for a separate arrangement or facility when
“necessary to provide the individual . . . with a good, service,
facility, privilege, advantage, or accommodation, . . . as effec-
tive as that provided to others.” For this subsection to come
into play, there must be (1) a separate arrangement or facility,
which (2) was necessary for the disabled person, and (3) was
“as effective as” that for which it was a substitution. Here,
CCE did not offer Lockett a separate arrangement or facility,
but relegated her to the general passenger area. Thus, this sub-
section is not applicable. Moreover, even if it were applicable,
the general passenger area was not equivalent to — not “as
effective as” — the Commodore Lounge. The record shows
that some travelers were willing to pay a premium for a seat
that reclines, early boarding, and being served a cookie and a
drink. In other words, the Commodore Lounge is the equiva-
9542             LOCKETT v. CATALINA CHANNEL EXPRESS
lent of a first class section on an airplane. Construing the sub-
section to allow the relegation of an individual with a
disability to tourist class, or to the back of the airplane, on the
rationalization that the individual was allowed to travel on the
same plane would distort the letter and intent of the subsec-
tion. Furthermore, even if it could be argued that there was a
factual question as to whether the general passenger area was
“as effective as” the Commodore Lounge, that question would
be a matter for the jury, and could not be determined on sum-
mary judgment. CCE’s relegation of Lockett to the general
passenger area was not a permissible accommodation under
42 U.S.C. § 12182(b)(1)(A)(iii).

                                      V

   We recognize, however, that Lockett’s request for passage
in the Commodore Lounge created a dilemma for CCE. Its
prohibition on animals in the Commodore Lounge was
adopted in response to a passenger’s assertion of an allergy to
animal dander. Accordingly, CCE’s employees had to decide
on the spot whether to potentially expose passengers in the
Commodore Lounge to dander or to ask Lockett to ride in the
general passenger area. We read 29 C.F.R. § 36.208 as per-
mitting CCE to ask Lockett to travel in the general passenger
area while it investigated the matter.4
  4
   28 C.F.R. § 36.208 reads:
      (a) This part does not require a public accommodation to permit
      an individual to participate in or benefit from the goods, services,
      facilities, privileges, advantages and accommodations of that
      public accommodation when that individual poses a direct threat
      to the health or safety of others.
      (b) Direct threat means a significant risk to the health or safety
      of others that cannot be eliminated by a modification of policies,
      practices, or procedures, or by the provision of auxiliary aids or
      services.
      (c) In determining whether an individual poses a direct threat to
      the health or safety of others, a public accommodation must make
               LOCKETT v. CATALINA CHANNEL EXPRESS                     9543
   [2] This regulation provides that an individual can be
denied an accommodation when the individual “poses a direct
threat to the health or safety of others.” Subsection (b) notes
that direct threat means that the significant risk “cannot be
eliminated by a modification of policies, practices, or proce-
dures, or by the provision of auxiliary aids or services.” Sub-
section (c) states:

     In determining whether an individual poses a direct
     threat to the health or safety of others, a public
     accommodation must make an individualized assess-
     ment, based on reasonable judgment that relies on
     current medical knowledge or on the best available
     objective evidence, to ascertain: the nature, duration,
     and severity of the risk; the probability that the
     potential injury will actually occur; and whether rea-
     sonable modifications of policies, practices, or pro-
     cedures will mitigate the risk.

   [3] Applying the regulation to the situation presented in this
case, it appears that CCE was faced with a potential threat to
the health and safety of others, and that the threat could not
be eliminated by a modification of the policy. Accordingly,
CCE had to make a reasonable judgment based on the avail-
able medical knowledge and objective evidence.5 We hold

      an individualized assessment, based on reasonable judgment that
      relies on current medical knowledge or on the best available
      objective evidence, to ascertain: the nature, duration, and severity
      of the risk; the probability that the potential injury will actually
      occur; and whether reasonable modifications of policies, prac-
      tices, or procedures will mitigate the risk.
   5
     There is no indication that CCE knew, or should have known, whether
any passenger in the Commodore Lounge on September 2, 2002, was
allergic to animal dander. Moreover, there is no indication that CCE knew,
or should have known, the severity of any passenger’s alleged allergy to
dander. However, it is not difficult to conceive of the potential health ram-
ifications for a passenger with a severe allergy to animal dander who, hav-
9544           LOCKETT v. CATALINA CHANNEL EXPRESS
that CCE’s one-time request that Lockett accept passage in
the general passenger area was a reasonable judgment under
28 C.F.R. § 36.208.

   We hasten to note that this holding is limited to CCE’s sin-
gle determination made on September 2, 2002, and should not
be read as suggesting that CCE’s change in its policy to allow
service animals in the Commodore Lounge was not compelled
under the ADA. To the contrary, it is clear that ultimately the
entity asserting a “direct threat” as a basis for excluding an
individual bears a heavy burden of demonstrating that the
individual poses a significant risk to the health and safety of
others. See Bragdon v. Abbot, 524 U.S. 624, 649-50 (1998).
Indeed, CCE may well have violated the ADA had it not
changed its policy.6

ing been informed that animals are not allowed into the Commodore
Lounge, is then confronted with a service dog entering the area. We can-
not say that it was unreasonable for CCE to ask Lockett to ride in the gen-
eral passenger area with her service animal while it ascertained how
severe an allergic reaction to animal dander was medically possible or
likely, and informed its riders that service animals would be allowed in the
Commodore Lounge.
   6
     28 C.F.R. 36.302 reads, in relevant part:
    (a) General. A public accommodation shall make reasonable
    modifications in policies, practices, or procedures, when the
    modifications are necessary to afford goods, services, facilities,
    privileges, advantages, or accommodations to individuals with
    disabilities, unless the public accommodation can demonstrate
    that making the modifications would fundamentally alter the
    nature of the goods, services, facilities, privileges, advantages, or
    accommodations.
    ...
    (c) Service animals—
    (1) General. Generally, a public accommodation shall modify
    policies, practices, or procedures to permit the use of a service
    animal by an individual with a disability.
               LOCKETT v. CATALINA CHANNEL EXPRESS                      9545
   However, in this case we are asked to determine whether
CCE’s failure to immediately accede to Lockett’s request sup-
ports a cause of action. Neither party has cited any case
directly on point and we have not found such a case.7 Most
of the cases we have reviewed addressed a provider’s ultimate
decision concerning the accommodation it is willing to make.
For example, in Anderson v. Little League Baseball, Inc., 794
F. Supp. 342, 345-46 (D. Ariz. 1992), the district court issued
a temporary restraining order because the defendant adopted
a rule prohibiting a person in a wheelchair from being in a
coach’s box on the field, and had not conducted an individual-
ized assessment. In Bombrys v. City of Toledo, 849 F. Supp.
1210, 1221 (N.D. Ohio 1993), the district court granted relief
against the city’s blanket exclusion of insulin-dependent dia-
betics from the police force. Also, in Doe v. District of
Columbia, 796 F. Supp. 559, 573 (D.D.C. 1992), the district
court granted relief because the city had withdrawn its offer
of employment based on the plaintiff being HIV-positive.
None of these cases concerned a lawsuit brought after the
defendant had made the requested accommodation under the
ADA, but challenging the defendant’s failure to make an
accommodation as soon as it was first requested.8

   [4] Faced with an issue of first impression, we conclude
that CCE’s single decision on September 2, 2002, to ask
Lockett to ride in the general passenger area was a reasonable
judgment under 28 C.F.R. § 36.208. On that day, the ticket
  7
     The district court cited only an unpublished district court case, Pool v.
Riverside Health Servs., Inc., No-941430-PFK, 1995 WL 519129 (D. Kan.
Aug. 25, 1995). In that case, the district court determined that Ms. Pool,
who was confined to a wheelchair, could not state a cause of action under
the ADA based on the hospital’s refusal to allow her to take her “assis-
tance dog” into the hospital’s emergency services department where Ms.
Pool’s fiancé was being treated. Although this case shows that not all
refusals to accommodate are actionable, it is too factually distinct from the
case before this court to provide much guidance.
   8
     At the time that Lockett filed her complaint, CCE had already changed
its policy to allow service animals in the Commodore Lounge.
9546         LOCKETT v. CATALINA CHANNEL EXPRESS
seller was required to make a “reasonable judgment” based on
“current medical knowledge” and the “best available objec-
tive evidence.” The ticket seller knew only that CCE had
adopted a policy based on a passenger’s alleged allergy, and
there is no suggestion that the person had any training to eval-
uate the possible effect on an allergic passenger of the pres-
ence of a service animal in the Commodore Lounge. With the
ferry scheduled to depart, selling Lockett a ticket for the gen-
eral passenger area was a reasonable judgment. It allowed
CCE to provide Lockett with transportation to Catalina Island,
as she requested, albeit without the benefits and the cost of the
Commodore Lounge.

   [5] We further hold that in this instance, the determination
that selling Lockett a ticket to the general passenger area was
a reasonable judgment under 28 C.F.R. § 36.208 was properly
made on the parties’ cross-motions for summary judgment.
All the evidence as to what the CCE employees knew on Sep-
tember 2, 2002 was before the district court. Lockett does not
allege that she was precluded from presenting relevant evi-
dence. Instead, on appeal, she argues that the district court
should have granted her summary judgment on the liability
issue. We agree with the district court that the evidence
required a finding that CCE’s decision on September 2, 2002
to relegate Lockett to the general passenger area was a reason-
able judgment under 28 C.F.R. § 36.208. Accordingly, on this
ground only, the district court’s order is AFFIRMED.



HALL, Circuit Judge, dissenting:

   Because I find that Catalina Channel Express failed to
make the individualized assessment required under the Amer-
icans with Disabilities Act, and failed to consider whether rea-
sonable modifications could be made in this individual case,
I respectfully dissent.
             LOCKETT v. CATALINA CHANNEL EXPRESS             9547
   Under the ADA, a place of public accommodation may
exclude a disabled individual from a service or opportunity,
if that individual “poses a direct threat to the health or safety
of others.” 42 U.S.C. § 12182(b)(3). A “direct threat” is
defined as “a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, prac-
tices, or procedures or by the provision of auxiliary aids or
services.” Id. “When determining whether an individual poses
a ‘direct threat,’ a place of public accommodation must not
base its calculus on stereotypes or generalizations about the
effects of a disability but rather must make ‘an individualized
assessment, based on reasonable judgment that relies on cur-
rent medical knowledge or on the best available objective evi-
dence.’ ” Montalvo v. Radcliffe, 167 F.3d 873, 877 (4th Cir.
1999) (quoting 28 C.F.R. § 36.208(c)). This assessment must
consider the nature, duration, and severity of the risk. 28
C.F.R. § 36.208.

   Under this rule, a good faith belief that a risk exists is not
sufficient. Bragdon v. Abbott, 524 U.S. 624, 649 (1998). The
person making the relevant decision not to provide the service
must base his decision on the objective information available
to him. See id. In Bragdon, a dentist had declined to see an
HIV-positive patient on the basis that she would have posed
a risk to the health of others. The Supreme Court used the
opportunity to elaborate on the “direct threat” standard:

    The existence, or nonexistence, of a significant risk
    must be determined from the standpoint of the per-
    son who refuses the treatment or accommodation,
    and the risk assessment must be based on medical or
    other objective evidence. As a health care profes-
    sional, petitioner had the duty to assess the risk of
    infection based on the objective, scientific informa-
    tion available to him and others in his profession.
    His belief that a significant risk existed, even if
    maintained in good faith, would not relieve him from
    liability. To use the words of the question presented,
9548         LOCKETT v. CATALINA CHANNEL EXPRESS
    petitioner receives no special deference simply
    because he is a health care professional.

Id. However, the Court has previously held that medical judg-
ments based on the duration, severity and nature of the risk
are entitled to deference. See School Bd. of Nassau Cty. v.
Arline, 480 U.S. 273, 288 (1987).

   The risk to others must also be “significant.” 42 U.S.C.
§ 12182(b)(3). The ADA’s statutory language regarding the
threat to others was adopted from Arline, a case dealing with
infectious disease. See Bragdon, 524 U.S. at 649 (discussing
the influence of Arline). As the Court acknowledged, “Arline
and the ADA do not ask whether a risk exists, but whether it
is significant.” Bragdon, 524 U.S. at 649. In Doe v. District
of Columbia, 796 F. Supp. 559 (D.D.C. 1992), for example,
the district court held that hiring an HIV-positive firefighter
would pose no “measurable risk” of infection to other fire-
fighters or the public. Id. at 569.

   The ADA’s required analysis does not end, however, with
a finding of significant risk. If it finds such a threat, the ser-
vice provider must then ascertain “whether reasonable modifi-
cations of policies, practices, or procedures will mitigate the
risk, to the point of eliminating it as a significant risk.” Mon-
talvo, 167 F.3d at 877 (quoting 28 C.F.R. § 36.208(c) and 42
U.S.C.§ 12182(b)(3))(internal punctuation omitted). As the
Fourth Circuit explained in Montalvo, one of the few appel-
late decisions dealing with these provisions, “a failure to
make a reasonable modification is itself an act of discrimina-
tion unless the place of public accommodation can demon-
strate that implementing the modification would
fundamentally alter the nature of the program.” Id.

  The interaction between Lockett and Catalina Channel
Express falls far short of this statutory procedure. First, CCE
made no “individualized assessment” as to the health effects
of bringing Lockett’s dog aboard. Though it had limited
             LOCKETT v. CATALINA CHANNEL EXPRESS             9549
objective evidence, it could have investigated whether the
female passenger who had complained about dander was in
fact on the ship, or whether there were other allergic passen-
gers in the lounge. Though CCE did not appear to act with
malice, pure intentions and good faith are not sufficient under
the ADA.

   Second, the risk to others was not found, objectively, to be
significant. The frequent passenger who allegedly requested a
dander-free environment (a passenger who was never
deposed, let alone named, by CCE) did not suggest this policy
was necessary as a matter of serious public health concern,
along the lines of an infectious disease. It bears repeating that
CCE never determined whether any allergic passenger would
even be in the lounge area.

   The opinion in this case treats the decision about Lockett
as an individualized assessment, but it appears that the ticket
agent was simply applying CCE’s policy as a matter of reflex.
Under the ADA, the standard for judging the application of a
policy is the same as the standard for one-time action: “Safety
requirements must be based on actual risks and not on mere
speculation, stereotypes, or generalizations about individuals
with disabilities.” 28 C.F.R. 36.301. In Leiken v. Squaw Val-
ley Ski Corp., 1994 WL 494298, 3 A.D. Cases 945 (E.D. Cal.
1994), the district court granted a preliminary injunction
against a ski resort’s policy of barring wheelchairs from the
cable car used to access a high-altitude recreation area. The
resort had justified the policy on the grounds that wheelchairs
would hinder any emergency evacuation of the cable car. The
district court held that the ski resort “cannot justify its policy
as a series of individual safety-based exclusions because it has
not performed individualized risk assessments.” Id.; see also
Bombrys v. City of Toledo, 849 F. Supp. 1210, 1216 (N.D.
Ohio 1993); Anderson v. Little League Baseball, Inc., 794 F.
Supp. 342, 345 (D. Ariz. 1992). As in these cases, CCE made
a blanket policy and applied it to Lockett without considering
the individual facts of her case.
9550         LOCKETT v. CATALINA CHANNEL EXPRESS
   Finally, CCE’s employees did not investigate whether a
“reasonable modification” would neutralize any health threat.
Though the lounge was allegedly the only area where allergic
passengers could be segregated from animals, CCE did not
investigate whether there were in fact other allergic passen-
gers aboard, whether any passengers could be persuaded to sit
elsewhere, or whether Lockett could be seated in any particu-
lar part of the lounge where the dog’s dander would pose the
least risk.

   Though it was no doubt wise and well-intentioned for CCE
to eliminate this policy following the Lockett incident, this
change of course does not remedy whatever damage Lockett
alleges from the initial violation. Any sentiment that her claim
is too small to be worthwhile, or that CCE should not be pun-
ished when it has acted admirably otherwise, is an issue best
left to the jury when determining damages. Accordingly, I
dissent.
