Team SS CRAL 2020 Brief Submission - law.emory.eduTeam SS 6 1. Article III requires the District...
Transcript of Team SS CRAL 2020 Brief Submission - law.emory.eduTeam SS 6 1. Article III requires the District...
Team SS
UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT
C.A. No. 20-00328
ANTHONY FAUCI,
Plaintiff-Appellee
v.
SPICY PEACH, INC.,
Defendant-Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EMORY
BRIEF FOR THE PLAINTIFF-APPELLEE
Team SS Counsel for the Plaintiff-Appellee /s/ Team SS Member 1 /s/ Team SS Member 2
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TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………………………..iii
STATEMENT OF THE ISSUES…………………………………………………………………1
STATEMENT OF FACTS………………………………………………………………………..1
SUMMARY OF THE ARGUMENT……………………………………………………………..3
ARGUMENT……………………………………………………………………………………...4
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT CONSIDERED MR FAUCI’S NOVEL LEGAL ARGUMENT MADE IN HIS OBJECTIONS TO THE MAGISTRATE’S R&R…………………………………….4
A. The District Court Correctly Considered Mr. Fauci’s New Legal Argument Under the Required de novo Review Interpretation……………………………………………...5
1. Article III requires the District Court to render all final decisions on dispositive
motions…………………………………………………………………………….6
2. Congress intended for the District Court to retain final adjudicatory power over all dispositive motions.……………………………………………………………….7
3. The FMA’s plain language requires the District Court to review de novo all
arguments that could be raised before a magistrate……………………………….8
B. The District Court Properly Considered Mr. Fauci’s New Legal Argument Under the Discretionary Review Interpretation………………………………………………......9
C. The District Court Properly Considered Mr. Fauci’s New Legal Argument Under the Impermissibly Restrictive Waiver Interpretation……………………………………12
II. THE DISTRICT COURT PROPERLY HELD THAT SPICY PEACH, INC’S
WEBSITE IS SUBJECT TO THE AMERICANS WITH DISABILITIES ACT BECAUSE ITS WEBSITE IS PLACE OF PUBLIC ACCOMMODATION……….15
A. The Thirteenth Circuit Should Follow the First and Seventh Circuit Holding that
Websites Are Places of Public Accommodation under the ADA Regardless of Whether the Website is Connected to a Physical Location…………………………………….16
1. A textualist interpretation of the ADA provides that places of public
accommodation are not limited to physical spaces………………………………17 2. The legislative history and agency interpretation of the ADA require websites
to be places of public accommodation…………………………………………...20
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3. Public policy requires the ADA to be broadly interpreted in order to progress with societal and technological needs………………………………….22
B. If the Thirteenth Circuit Applies the Nexus Test, Spicy Peach’s Website is Still a Place
of Public Accommodation Because Its Website is Tied to Its Physical Location……………………………………………………………………………...25
CONCLUSION………………………………………………………………………………….27
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TABLE OF AUTHORITIES Cases
Abbas v. Dixon, 480 F.3d 636 (2d Cir. 2007) ............................................................................... 11
Abramski v. United States, 573 U.S. 169 (2014) .......................................................................... 20
Amadasu v. Ngati, No. 05–CV–2585, 2012 WL 3930386 (E.D.N.Y. Sept. 9, 2012) .............. 9, 10
Andrews v. Blick Art Materials, LLC, 368 F. Supp. 3d 381 (E.D.N.Y. 2017) ........................ 25, 26
Anna Ready Mix, Inc. v. N.E. Pierson Const. Co., Inc., 747 F.Supp. 1299 (S.D. Ill. 1990) ... 12, 14
Auer v. Robbins, 519 U.S. 452 (1997) .......................................................................................... 21
Boyd v. City and Cty. of San Francisco, 576 F.3d 938 (9th Cir. 2009) .......................................... 4
Carparts Distrib. Ctr., Inc. v. Auto. Wholesalers Ass’n of New England, 37 F.3d 12 (1st Cir.
1994) .................................................................................................................................. passim
CFTC v. Schor, 478 U.S. 833 (1986) (Brennan, J., dissenting) .................................................... 14
Crowell v. Benson, 285 U.S. 22 (1932) .......................................................................................... 6
Dewsnup v. Timm, 502 U.S. 410 (1992) ................................................................................. 17, 19
Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) ................................................. 17
Duncan v. Becerra, No. 19-55376, 2020 U.S. App. LEXIS 25836 (9th Cir. Aug. 14, 2020) ........ 4
E.E.O.C. v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012) ................................................................ 4
Energy Intelligence Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261 (5th Cir.
2020) ..................................................................................................................................... 4, 15
Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ..................................................... 17
Freeman v. Cty. Of Bexar, 142 F.3d 848 (5th Cir. 1998) ............................................. 5, 10, 12, 13
Gorecki v. Hobby Lobby, Inc., 2017 U.S. Dist. Lexis 109123 (C.D. Cal. June 15, 2017) ..... 21, 26
Haynes v. Dunkin’ Donuts LLC et al., 741 Fed. App’x 752 (11th Cir. 2018) ........................ 25, 26
Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868 (9th Cir. 1981) ......................................... 20
In re Friedman’s Inc., 738 F.3d 547 (3d Cir. 2013) ..................................................................... 17
Kyllo v. United States, 533 U.S. 27 (2001) ............................................................................. 24, 25
Mathews v. Weber, 423 U.S. 261 (1976) ........................................................................................ 8
Morgan v. Joint Admin Bd., 268 F.3d 456 (7th Cir. 2001) ........................................................... 16
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855) ................................ 6
Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) ................. 18, 19, 23
Nat’l Fed’n of the Blind v. Scribd Inc., 97 F.Supp. 3d 565 (D. Vt. 2015) .................................... 18
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Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp. 2d 946 (N.D. Cal. 2006) ................... 18, 26
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S 50 (1982) ........................ 6, 7
Olivares v. Brentwood Indus., 822 F.3d 426 (8th Cir. 2016) ......................................................... 4
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988) . 12, 13, 15
Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983) ................................................................ 13, 14
Pierce v. Underwood, 487 U.S. 552 (1988) .............................................................................. 4, 15
Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) ...................................... 17, 23
Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) ........................................ 16, 21, 25
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................................... 21, 22
Slave Regina College v. Russell, 499 U.S. 225 (1991) ................................................................... 8
Stephens v. Tolbert, 471 F.3d 1173 (11th Cir. 2006) ................................................................ 4, 10
Thomas v. Arn, 474 U.S. 140 (1985) .................................................................................... 8, 9, 13
Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568 (1985) .................................................. 6
United States v. Alvarez-Sanchez, 511 U.S. 350 (1994) ............................................................... 17
United States v. George, 971 F.2d 1113 (4th Cir. 1992) ........................................................ 5, 8, 9
United States v. Howell, 231 F.3d 615 (9th Cir. 2000) ................................................................... 5
United States v. Larson, 760 F.2d 852 (8th Cir. 1985) ................................................................... 9
United States v. McKelvey, 203 F.3d 66 (1st Cir. 2000) ............................................................... 19
United States v. Raddatz, 447 U.S. 667 (1980) ..................................................................... passim
United States v. Romano, 794 F.3d 317 (2d Cir. 2015) .................................................................. 9
United States v. Shami, 754 F.2d 670 (6th Cir. 1985) ............................................................ 5, 6, 7
United States v. Will, 449 U.S. 200 (1980) ..................................................................................... 6
Wells Fargo Bank N.A. v. Sinnott, No. 2:07–CV–169, 2010 WL 297830 (D. Vt. Jan. 19, 2010)10,
11
Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) ........................ 17, 18
Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir. 1983) ................................................... 6
Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009) .................................................................... 10
Statutes
28 U.S.C. § 636 (2009).........................................................................................................passim
42 U.S.C. § 12102 (1990)............................................................................................................15
42 U.S.C. § 12181 (1990)......................................................................................................16,19
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42 U.S.C. § 12182 (1990)................................................................................................15,18,20
Other Authorities
Brief for the United States as Amicus Curiae in Support of Appellant, No. 01-11197, 2001 WL
34094038 (11th Cir. May 3, 2001).....................................................................................21,22
Fed. R. Civ. P. 72.......................................................................................................................5,7
H.R. Rep. 101-485 (1990)............................................................................................................20
H.R. Rep. No. 94-1609 (1976).......................................................................................7,8,10,13
J. Clement, U.S. Amazon retail e-commerce CMV share 2016-2021, Statistica (Aug. 9, 2019),
https://www.statista.com/statistics/788109/amazon-retail-market-share-usa/..........................24
Jia Wertz, 3 Emerging E-Commerce Growth Trends to Leverage in 2020, Forbes (Aug. 1, 2020),
https://www.forbes.com/sites/jiawertz/2020/08/01/3-emerging-e-commerce-growth-trends-to-
leverage-in-2020/#48665a7a6fee.............................................................................................24
Letter from Deval L. Patrick, Assistant Attorney General, DOJ (Sep. 9, 1996),
https://www.justice.gov/crt/foia/tal712.txt...............................................................................21
Letter from Stephen E. Boyd, Assistant Attorney General, DOJ (Sep. 25, 2018)........................22
Pub. L. 101-336............................................................................................................................20
Record...................................................................................................................................passim
U.S. Census Bureau, Quarterly Retail E-Commerce Sales 2nd Quarter 2020..............................24
U.S. Const. Art. III § 1...................................................................................................................6
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STATEMENT OF THE ISSUES
I. Whether the District Court properly considered Mr. Fauci’s novel civil rights legal
argument which was not submitted to or considered by the magistrate judge?
II. Whether Spicy Peach, Inc.’s website is a place of public accommodation under the
Americans with Disabilities Act?
STATEMENT OF FACTS Plaintiff Anthony Fauci (Mr. Fauci) was born with a hearing impairment rendering him
completely deaf. R. at 3. In every aspect of his life, Mr. Fauci has faced disability-related
hardships; he has had difficulty obtaining a consistent, well-paying job and has even been denied
the enjoyment of one of the finer things in life—adult entertainment. Id. at 9. On March 15, 2019,
Mr. Fauci rented an adult film “Home Alone 2: Quarantined Together” (Home Alone) from
Defendant Spicy Peach, Inc.’s (Spicy Peach) website, www.spicypeachrentals.com. Id. at 10. Mr.
Fauci relies almost exclusively on closed captioning to watch videos and movies. Id. at 9. Much
to Mr. Fauci’s dismay, Home Alone lacked closed captioning. Id. at 10. Unable to watch his first
choice Home Alone, Mr. Fauci proceeded to rent three more movies from Spicy Peach’s website.
Id. Not a single movie Mr. Fauci rented from Spicy Peach’s website provided closed captioning.
Id. Mr. Fauci could not enjoy his rented movies because Spicy Peach failed to accommodate his
hearing disability.
Spicy Peach was founded in 2000 as a brick-and-mortar store that rented adult videos. Id.
at 9. In 2015, Spicy Peach created its website, www.spicypeachrentals.com, to allow online rentals
and operate in tandem with its physical store. Id. at 3. Spicy Peach’s website includes the location
and contact information for the physical store and allows customers to buy online gift cards which
can be used either in person or online. Id. at 10. All online rentals are exclusively available to
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download or stream, much like Amazon Prime Video. Id. Spicy Peach offers slightly different
content at its physical store and on its website—only one of the videos Mr. Fauci rented online,
Home Alone, was also available at the physical store. Id. at 4. The other three were available
exclusively online. Id. The major difference between Spicy Peach’s website and physical store is
accessibility—every video for rent at the physical store provides closed captioning while not a
single streaming video can claim that honor. Id.
Mr. Fauci initiated pro se his civil rights complaint under the Americans with Disabilities
Act (ADA) on April 1, 2019. Id. at 11. On July 7, 2019, both parties’ motions for summary
judgment were referred to a magistrate for a Report and Recommendation (R&R). Id. Less than
one month before the summary judgment briefing deadline, Mr. Fauci obtained legal counsel. Id.
While Mr. Fauci’s counsel timely submitted their brief, they “missed a key legal argument” due to
the short time between the beginning of their representation and the filing deadline. Id. On January
27, 2020, the magistrate—without considering this key legal argument—issued the R&R
recommending that Spicy Peach’s motions for summary judgment be granted. Id. Mr. Fauci
submitted via electronic filing a letter seeking an extension of time to object to the R&R. Id. at 12.
Through the District Court’s own e-filing error, the letter was not entered into the system. Id. Due
to this error, the District Court adopted the R&R on February 14, 2020, as it saw no objection or
motion for extension. Id. On February 20, 2020, Mr. Fauci filed a motion opposing the adoption
of the R&R based on a new legal argument not raised before the magistrate. Id. The new legal
argument—that all websites that fall within a Title III category are places of public accommodation
under the ADA—is novel and has not been addressed by the Thirteenth Circuit. Id. at 13. The
District Court—recognizing that the R&R was written without considering Mr. Fauci’s strong civil
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rights argument—vacated its February 14, 2020 order and reviewed Mr. Fauci’s novel legal
argument not presented to the magistrate. Id. at 12.
SUMMARY OF THE ARGUMENT The District Court did not abuse its discretion when it considered Mr. Fauci’s novel legal
argument that was not presented to the magistrate and was raised for the first time in objections to
the magistrate’s R&R. Whether or not a district court may consider such an argument is a matter
of first impression for the Thirteenth Circuit. Under the Federal Magistrates Act (FMA), 28 U.S.C.
§ 636 (2009), the District Court was required to engage in de novo review of the magistrate’s R&R
upon the timely filing of specific objections. This de novo review required the District Court to
consider all new arguments raised in objections to the magistrate’s R&R. The required de novo
review interpretation is rooted in three sources: the United States Constitution, the FMA’s text,
and congressional intent. As part of its required de novo review, the District Court properly
considered Mr. Fauci’s new legal argument.
Once this court finds that the District Court properly considered Mr. Fauci’s argument—
that websites themselves are places of public accommodation under the ADA—this Court should
hold that Spicy Peach’s website is subject to the ADA. All websites that fall within an enumerated
Title III category are places of public accommodation. The text of the ADA, legislative and agency
history, and public policy support this conclusion. Here, Spicy Peach’s website is classified as a
“place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,”
and a “place of exercise or recreation,” and therefore is subject to the ADA. Even if this Court
applies the nexus test—requiring Spicy Peach’s website to be sufficiently tied to its brick-and-
mortar location—Spicy Peach’s website is still a place of public accommodation because it
provides similar in-store content, sells gift cards, and provides store location information.
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Since Spicy Peach’s website is a place of public accommodation, the District Court
properly held that Spicy Peach violated the ADA by failing to provide video closed captioning to
accommodate Mr. Fauci’s hearing disability. Due to this violation, this Court should affirm the
injunctive relief granted by the District Court requiring Spicy Peach to provide closed captioning
on all of its online videos.
ARGUMENT
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT CONSIDERED MR FAUCI’S NOVEL LEGAL ARGUMENT MADE IN HIS OBJECTIONS TO THE MAGISTRATE’S R&R.
The District Court properly considered Mr. Fauci’s novel legal argument raised for the first
time in his objections to the magistrate’s R&R. This court reviews de novo the District Court’s
interpretation of the FMA. See Pierce v. Underwood, 487 U.S. 552, 558 (1988); see also Energy
Intelligence Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261, 277 (5th Cir. 2020).
Once this Court determines that the District Court properly interpreted the FMA to require de novo
review of a magistrate’s R&R and all accompanying objections, this Court reviews the District
Court’s decision to consider Mr. Fauci’s new argument for abuse of discretion. Stephens v. Tolbert,
471 F.3d 1173, 1175 (11th Cir. 2006). Abuse of discretion is a highly deferential standard. See
Duncan v. Becerra, No. 19-55376, 2020 U.S. App. LEXIS 25836, at *23 (9th Cir. Aug. 14, 2020).
A district court abuses its discretion if it (1) bases its decision on an error of law, (2) commits clear
error of judgment while weighing relevant factors, or (3) reaches a conclusion that is unreasonable
and “cannot be located within the range of permissible decisions.” See, e.g., E.E.O.C. v. KarenKim,
Inc., 698 F.3d 92, 99–100 (2d Cir. 2012); Olivares v. Brentwood Indus., 822 F.3d 426, 429 (8th
Cir. 2016); Boyd v. City and Cty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009). Here, the
District Court did not abuse its discretion because (1) the decision to require consideration of Mr.
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Fauci’s new argument is supported by the United States Constitution, the FMA’s text, and
congressional intent; (2) the supporting factual findings are not clearly erroneous; and (3) all
conclusions are reasonable and comport with accepted interpretations of the FMA.
The FMA clause at issue is the de novo clause—“[a] judge of the court shall make a de
novo determination of those portions of the [R&R]…to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the [magistrate’s R&R].” § 636(b)(1); Fed.
R. Civ. P. 72(b)(3). This Court has yet to decide the extent to which a district court, upon proper
objection to a magistrate’s R&R, has discretion to consider new arguments. Circuit courts differ
on the extent the de novo review clause grants a district court this discretion. See, e.g., United
States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992); United States v. Howell, 231 F.3d 615, 621
(9th Cir. 2000); Freeman v. Cty. Of Bexar, 142 F.3d 848, 852 (5th Cir. 1998). The circuits offer
three possible interpretations: the district court (1) is required to consider new arguments; (2) has
discretion to consider new arguments; and (3) may deem new arguments waived. See Howell, 231
F.3d at 621. The District Court correctly adopted and applied the first interpretation requiring de
novo review. R. at 13. However, under every interpretation, the District Court did not abuse its
discretion.
A. The District Court Correctly Considered Mr. Fauci’s New Legal Argument Under the Required de novo Review Interpretation.
Once de novo review was triggered by Mr. Fauci’s timely objections, the District Court
was both constitutionally and statutorily required to consider anew all arguments raised in his
objections. George, 971 at 1118; United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). This
interpretation is supported by Article III of the United States Constitution, the FMA’s text, and
congressional intent.
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1. Article III requires the District Court to render all final decisions on dispositive motions.
Required review comports with Article III’s mandate that “[t]he judicial power of the
United States shall be vested” in federal courts. U.S. Const. Art. III § 1; see also Shami, 754 F.2d
at 672. The Framers created an independent federal judiciary to both maintain checks and balances
on the other branches of government and to guarantee impartial adjudication of litigants’ claims
free of undue external influence. United States v. Will, 449 U.S. 200, 218 (1980); Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S 50, 58 (1982). Article III unambiguously
captures these fundamental principles—“[t]he judicial power of the United States shall be vested”
in an independent federal court system whose judges enjoy life tenure and salary protection. U.S.
Const. Art. III § 1. This judicial power—with minimal exceptions—must be exercised by Article
III courts. Northern Pipeline, 458 U.S at 60; Murray’s Lessee v. Hoboken Land & Improvement
Co., 59 U.S. 272, 284 (1855) (“[T]here are matters…which…are susceptible of judicial
determination, but which congress may or may not bring within the cognizance of the courts of
the United States.”).
One exception is the delegation of judicial fact-finding functions, ordinarily performed by
Article III judges, to adjunct tribunals and officers. See, e.g., Crowell v. Benson, 285 U.S. 22, 51
(1932) (delegating decision-making authority to agencies); United States v. Raddatz, 447 U.S. 667,
673–74 (1980) (delegating certain pretrial decision-making authority to magistrate judges).
Magistrates are non-Article III judicial officers. § 636(c)(1); Wharton-Thomas v. United States,
721 F.2d 922, 925 (3d Cir. 1983). Congress’s power to delegate judicial functions to magistrates
is limited. See Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 584 (1985). Congress
may not vest the power to render final judgments on dispositive matters in magistrates. See id. The
“essential attributes of judicial power,” including the power of finality, must remain with the
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Article III court. Northern Pipeline, 458 U.S. at 81 (internal quotations omitted); Raddatz, 447
U.S. at 683.
The entire § 636 process of referring a motion to a magistrate and accepting the
magistrate’s findings “takes place under the district court’s total control and jurisdiction.” Raddatz,
447 U.S. at 681. The de novo review requirement is a statutory recognition that a district court—
enjoying Article III protections—must exercise its power of judicial review over all dispositive
matters delegated to a magistrate. See Shami, 754 F.2d at 672. Because the matters at issue here
are dispositive, the District Court must have, and therefore properly, reviewed Mr. Fauci’s ADA
argument.
2. Congress intended for the District Court to retain final adjudicatory power over all dispositive motions.
Congressional intent further favors requiring a district court to review all objections to a
magistrate’s R&R. Congress only vested a finite set of powers in magistrates in the FMA. See H.R.
Rep. No. 94-1609, at 11 (1976). Congress intended for magistrates to alleviate district courts’
workload by adjudicating burdensome pre-trial motions. Raddatz, 447 U.S. at 683; see also id. at
6 (“Congress [intended] that the magistrate should…assist the district judge [so] that the district
judge could have more time to preside at [] trial.”). To this end, the FMA permits the district court
to assign parties’ dispositive motions to a magistrate, so long as the district court makes all “final
and binding” rulings. § 636(b)(1)(B); Raddatz, 447 U.S. at 673.
In this case, when the parties’ dispositive motions were referred to the magistrate, the
magistrate conducted a hearing and subsequently submitted the R&R to the District Court. R at
12; § 636(b)(1)(B). Mr. Fauci then made specific objections to the R&R triggering the District
Court’s de novo review. R. at 12; § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(2)–(3). Congress intended
for district courts to “give fresh consideration to those issues to which specific objections have
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been made.” H.R. Rep. 94-1509, at 3. As part of this fresh consideration, the District Court was
required to consider de novo all of Mr. Fauci’s arguments—not just arguments made before the
magistrate—and “accept, reject, or modify [the R&R] in whole or in part.” § 636(b)(1); see also
Raddatz, 447 U.S. at 668; Mathews v. Weber, 423 U.S. 261, 271 (1976). In doing so, the District
Court made a constitutionally required “final and binding” ruling on Mr. Fauci’s new argument. §
636(b)(1)(B); Raddatz, 447 U.S. at 673.
3. The FMA’s plain language requires the District Court to review de novo all arguments that could be raised before a magistrate.
The FMA’s text similarly requires de novo review. Congress carefully chose the FMA’s
text to grant district courts final adjudicatory power over a magistrate’s R&R because it correctly
assumed that granting a magistrate final decision-making authority over dispositive motions would
run afoul of Article III. H.R. Rep. No. 94-1609, at 8 (“Article III…[requires a magistrate’s R&R
to be] subject always to ultimate review by a judge of the court.”); Raddatz, 447 U.S. at 676. Mr.
Fauci was entitled to de novo review for “those issues to which [specific] objection has been
made.” Raddatz, 447 U.S. at 675. However, if no party had raised an objection, the District Court—
sua sponte—could have reviewed de novo any issue delegated to the magistrate and “accept[ed],
reject[ed], or modif[ied] [the R&R] in whole or in part.” § 636(b)(1); Thomas v. Arn, 474 U.S.
140, 154 (1985). The FMA’s text explicitly permits a district court to receive additional
information as part of its de novo review. § 636(b)(1). De novo review is nondeferential and
requires a district court to make an independent review of the matter at issue. Slave Regina College
v. Russell, 499 U.S. 225, 238 (1991). “[B]y definition, de novo review entails consideration of an
issue as if it had not been decided previously.” George, 971 F.2d at 1118. Therefore, the District
Court was required to “conduct[] a thorough review of all objections and responses to the” R&R,
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including new arguments. United States v. Larson, 760 F.2d 852, 857 (8th Cir. 1985); United States
v. Romano, 794 F.3d 317, 341 (2d Cir. 2015); id.
Under the required review interpretation, the District Court was required to consider Mr.
Fauci’s new legal argument not submitted to the magistrate and raised for the first time in
objections to the magistrate’s R&R. Mr. Fauci’s objections were proper and the District Court
reviewed them “as if they had been timely filed.” R. at 12; see also Amadasu v. Ngati, No. 05–
CV–2585, 2012 WL 3930386, at *2 (E.D.N.Y. Sept. 9, 2012) (finding objection proper even when
filed late because the court’s own clerical error caused the late filing). The District Court therefore
did not abuse its discretion when it considered Mr. Fauci’s new public accommodation argument.
B. The District Court Properly Considered Mr. Fauci’s New Legal Argument Under the Discretionary Review Interpretation.
In the alternative, if this Court decides that the District Court was not required, but rather
had discretion, to hear Mr. Fauci’s new legal argument, this court should still find the District
Court properly exercised its discretion. Like the required review interpretation, the discretionary
interpretation is supported by Article III, the FMA’s text, and congressional intent.
The FMA is constitutional because the final decision on all dispositive matters referred to
the magistrate is made by the district court. See Raddatz, 447 U.S. at 683. The district court retains
the power—whether triggered by a party’s objection or by the court sua sponte—to review all
matters decided by a magistrate. See Thomas, 474 U.S. at 150. Granting the district court discretion
to consider an argument not presented to the magistrate fits within this narrative: if an argument
could have been considered by the magistrate, then it could have been reviewed de novo by the
district court.
A district court must affirmatively exercise its discretion and weigh the competing interests
of both congress’s intent to unburden the district court and congress’s intent to retain final
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adjudicatory power in the Article III court. See Freeman, 142 F.3d at 853; see also Raddatz, 447
U.S. at 683; H.R. Rep. No. 94-1609, at 11. The discretionary interpretation strikes a balance
between these two intentions: a district court may review a magistrate’s R&R for any reason yet
is not required to if it believes the new argument contravenes congress’s intent to alleviate the
district court’s workload. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
The FMA’s text further supports a discretionary standard. Once a magistrate submits the
R&R, the district court “shall make a de novo determination” and “may accept, reject, or
modify…the [R&R].” § 636(b)(1) (emphasis added). The district court “may receive further
evidence.” Id. (emphasis added). This language grants a district court discretion to consider legal
arguments not raised before the magistrate. Stephens, 471 F.3d at 1176–77 (finding that new legal
arguments fall under the “receive further evidence” clause).
In the instant case, under the discretionary standard, the District Court properly exercised
its discretionary power to consider Mr. Fauci’s new legal argument. The Second Circuit uses a six-
factor balancing test to standardize district courts’ use of discretion. Wells Fargo Bank N.A. v.
Sinnott, No. 2:07–CV–169, 2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010). Here, all five of the
relevant Wells Fargo factors weigh in Mr. Fauci’s favor. R. at 17–18; id. (the second factor—
whether a case or statute has changed the law—is not applicable here). The District Court properly
weighed the third factor—whether the new issue is a pure issue of law—in Mr. Fauci’s favor
because Mr. Fauci’s new legal argument that websites are places of public accommodation is
purely a question of law requiring no additional fact finding. R. at 18; Amadasu, No. 05–CV–2585,
2012 WL 3930386, at * 6 (“[A] purely legal question requires no additional factfinding.”).
Similarly, the District Court properly weighed the fourth factor—"whether the resolution of the
new legal issue is not open to serious question—" in Mr. Fauci’s favor because Mr. Fauci’s legal
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argument is one of first impression before the Thirteenth Circuit and is therefore open to question.
R. at 18.
While the District Court did not articulate its analysis of the first, fifth, and sixth factors,
each weighs in Mr. Fauci’s favor. The first factor—"the reason for the litigant's previous failure to
raise the new legal argument—" wholeheartedly weighs in Mr. Fauci’s favor. Wells Fargo, No.
2:07–CV–169, 2010 WL 297830, at *4. Mr. Fauci began his civil rights litigation pro se. R. at 11.
Less than one month before the motion for summary judgment filing deadline, Mr. Fauci obtained
legal counsel. Id. Due to the short turnaround between taking the case and the motion for summary
judgment filing deadline, Mr. Fauci’s counsel “missed a key legal argument…that they could have
raised in support of Mr. Fauci’s position.” Id. The fact that Mr. Fauci proceeded pro se cannot
destroy his case. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (Courts have an
“obligation…to make reasonable allowances to protect pro se litigants from inadvertent forfeiture
of important rights.”) (internal quotations omitted). Similarly, the fact that Mr. Fauci obtained legal
counsel so close to the summary judgment filing deadline cannot destroy his case. Mr. Fauci’s
failure to raise the legal argument in his motion for summary judgment because of his initial pro
se status should weigh in his favor.
The fifth and sixth factors—efficiency, fairness, and manifest injustice—similarly weigh
in Mr. Fauci’s favor for two reasons. Wells Fargo, No. 2:07–CV–169, 2010 WL 297830, at *4.
First, considering Mr. Fauci’s novel civil rights argument is fair, and not considering his argument
would be manifestly unjust. As part of this court’s obligation to protect “pro se litigants from
inadvertent forfeiture of important rights,” Abbas, 480 F.3d at 639, the District Court should have
and did give Mr. Fauci an opportunity to argue his full case. A civil right is unequivocally an
important right. It would be manifestly unfair and unjust for a civil rights violation to be dismissed
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without fully analyzing the legal issues. Mr. Fauci’s case is especially important because not only
does it involve a civil rights issue, it is a matter of first impression for the Thirteenth Circuit. R. at
13.
Second, the District Court correctly believed its decision to consider Mr. Fauci’s public
accommodation argument conformed with “the spirit of the FMA” because all fact finding was
completed by the magistrate. Id. at 18. No inefficiencies arose when the District Court considered
Mr. Fauci’s argument. Further, in this case, the fairness and injustice factors strongly outweigh
efficiency. Efficiency is not served by keeping a pro se litigant from making a valid legal argument
in defense of a civil rights claim. An efficiency argument should not deprive Mr. Fauci of a strong
civil rights argument offered as soon as practicably possible given the circumstances. For these
reasons, the fifth and sixth factors should also weigh in Mr. Fauci’s favor.
C. The District Court Properly Considered Mr. Fauci’s New Legal Argument Under the Impermissibly Restrictive Waiver Interpretation.
The impermissibly restrictive waiver interpretation is incorrect because it (1) misapplies
the plain language of the FMA, (2) distorts congressional intent, and (3) runs afoul of Article III.
However, even under the restrictive interpretation, the District Court properly exercised its
discretion to consider Mr. Fauci’s new legal argument.
The restrictive interpretation circuits believe that a legal argument not raised before a
magistrate is waived and is not entitled “as of right to de novo review” by the district court “absent
compelling reasons.” Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–
91 (1st Cir. 1988); Anna Ready Mix, Inc. v. N.E. Pierson Const. Co., Inc., 747 F.Supp. 1299, 1303
(S.D. Ill. 1990). While this interpretation allows parties to raise new factual or evidentiary issues,
it improperly bars district courts from considering new legal arguments. See Freeman, 142 F.3d at
852. The legal versus factual issue distinction is untenable. In Thomas v. Arn, the Supreme Court
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rejected the distinction between factual and legal issues, stating “the plain language of the statute
recognizes no such distinction.” 474 U.S. at 150. Under the plain language of the FMA, a district
judge may review both factual and legal issues. See id. Waiver is therefore an impermissible
intrusion on litigants’ rights. See id.
The restrictive interpretation is not based in the Constitution or the FMA’s text. See
Freeman, 142 F.3d at 851–53. Instead, it is based on two public policy concerns: efficiency and
fairness. Id. These circuits believe that allowing district courts to consider new legal arguments
would frustrate congress’s intention to relieve district courts of burdensome work. Paterson-
Leitch, 840 F.2d at 991. While Congress intended to streamline district courts’ dockets, Congress
acted within the strict confines of Article III. H.R. Rep. No. 94-1609, at 8. In doing so, Congress
necessarily gave final adjudicatory power to district courts. See Raddatz, 447 U.S. at 683.
These circuits are further concerned with opportunism. Paterson-Leitch, 840 F.2d at 990–
91. They find it unfair to permit a party to raise a new argument before the district court if its
original argument before the magistrate is unsuccessful. Id. at 991. However, it is the district
court’s obligation to decide whether an argument is unfair or opportunistic. See Raddatz, 447 U.S.
at 683. In fact, taking review power away from a district court would be patently unfair because
litigants must have the “broadest opportunity to fully avail themselves of the American legal
system” in keeping with the Framers’ constitutional design. R. at 19. Some circuits even refuse to
apply waiver to pro se litigants because it would be unfair. See Patterson v. Mintzes, 717 F.2d 284,
287–88 (6th Cir. 1983) (finding that the waiver rule is meant to “improve access to the federal
courts and aid the efficient administration of justice” and neither is accomplished by waiving a pro
se litigant’s rights.).
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While efficiency and fairness are important, they are not dispositive. See CFTC v. Schor,
478 U.S. 833, 863 (1986) (Brennan, J., dissenting). “The legislative interest in convenience and
efficiency [must] be weighed against the competing interest in judicial independence.” Id.
Because, pursuant to Article III, a district court must make the final decision on all dispositive
matters referred to a magistrate, and new arguments are part of these dispositive matters, restricting
district courts’ power of judicial review impermissibly infringes on Article III and “depriv[es]
litigants of too much process.” R. at 17; Raddatz, 447 U.S. at 683.
Even under this impermissibly restrictive interpretation, the District Court did not abuse its
discretion because (1) the district court had discretion to disregard waiver for a pro se litigant and
(2) this case fits within the “compelling reasons” exception. See Patterson, 717 F.2d at 287–88;
Anna Ready Mix, Inc., 747 F.Supp. at 1303. Here, the District court properly considered Mr.
Fauci’s argument because none of the policy reasons underpinning the waiver interpretation are
served by waiving a pro se litigant’s right to raise a new argument. See Patterson, 717 F.2d at
287–88. In Patterson v. Mintzes, a district court exercised its discretion and extended the written
objections filing deadlines for a pro se litigant because doing so was consistent with congressional
intent. Id. Here, the District Court recognized that Mr. Fauci proceeded pro se and that the only
reason his new legal argument was not raised before the magistrate was because his new counsel
lacked time to adequately prepare the summary judgment brief. R. at 11. Automatically waiving
Mr. Fauci’s right to present a full and sound case does not comport with Congress’s intent to
“improve access to the federal courts and aid the efficient administration of justice.” See Patterson,
717 F.2d at 287–88.
Further, if this Court determines that waiver should still apply, multiple compelling reasons
necessitate considering Mr. Fauci’s new legal argument. Mr. Fauci was a pro se litigant; Mr. Fauci
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has a credible and novel civil rights claim; Mr. Fauci obtained competent legal counsel close to
the summary judgment filing deadline; Mr. Fauci’s counsel raised this strong legal argument at
the first possible opportunity; as a pro se civil rights litigant, the District Court had an obligation
to protect Mr. Fauci from forfeiting his right to fully argue his claim. R. at 11–12. Mr. Fauci has
not—as the Paterson-Leitch court feared—taken a second bite at the apple. 840 F.2d at 991. This
voluminous list of compelling reasons weighs in Mr. Fauci’s favor.
For these reasons, this Court should affirm the District Court’s decision to consider Mr.
Fauci’s novel legal argument that websites themselves are places of public accommodation under
the ADA.
II. THE DISTRICT COURT PROPERLY HELD THAT SPICY PEACH, INC’S
WEBSITE IS SUBJECT TO THE AMERICANS WITH DISABILITIES ACT BECAUSE ITS WEBSITE IS PLACE OF PUBLIC ACCOMMODATION.
Spicy Peach violated the ADA because its website is a place of public accommodation that
is inaccessible to Mr. Fauci and others with hearing disabilities. Title III of the ADA forbids a
place of public accommodation from denying any person the full and equal enjoyment of its
services on the basis of disability. 42 U.S.C. § 12182(a) (1990). It is not contested whether or not
Mr. Fauci has a protected disability, 42 U.S.C. § 12102 (1990) (stating that hearing impairments
are protected by the ADA), the issue before this court is whether Spicy Peach’s website is
considered a place of public accommodation within the meaning of the ADA, as it is silent on
website coverage. This court reviews de novo the District Court’s interpretation of the ADA. See
Pierce, 487 U.S. at 558; see also Energy Intelligence Grp., Inc., 948 F.3d at 277.
The ADA defines “place of public accommodation” to include twelve different categories
of establishments, including a “place of exhibition or entertainment,” a “sales or rental
establishment,” a “service establishment,” and a “place of exercise or recreation.” 42 U.S.C. §
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12181(7)(c), (e), (f), (l) (1990). There is no question whether physical establishments under the
above categories are subject to the ADA, but there is a circuit split as to whether non-physical
establishments are subject to the ADA on their own. Compare Carparts Distrib. Ctr., Inc. v. Auto.
Wholesalers Ass’n of New England, 37 F.3d 12, 26–27 (1st Cir. 1994) (holding that Title III of the
ADA is not limited to physical structures); and Morgan v. Joint Admin Bd., 268 F.3d 456, 459 (7th
Cir. 2001) (holding that a physical location is not necessary to be a place of public
accommodation); with Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905–906 (9th Cir. 2019)
(holding that websites can be places of public accommodation only if they have a sufficient nexus
to a physical location). The District Court properly held that Spicy Peach’s website is a place of
public accommodation because all websites that fall within at least one of the enumerated Title III
categories are places of public accommodation. However, even under the nexus test interpretation,
there is a sufficient nexus between Spicy Peach’s website and physical store to subject its website
to the ADA. Under both interpretations, Spicy Peach violated the ADA.
A. The Thirteenth Circuit Should Follow the First and Seventh Circuit Holding that Websites Are Places of Public Accommodation under the ADA Regardless of Whether the Website is Connected to a Physical Location.
The Thirteenth Circuit should follow the approach of the First and Seventh Circuits by
holding that all websites that fall within at least one Title III category are places of public
accommodation because (1) a textualist reading of the statute provides that a physical space is not
necessary to be subject to the ADA; (2) legislative history and agency interpretation are consistent
with this holding; and (3) public policy demands statutory meaning conform with technological
progress.
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1. A textualist interpretation of the ADA provides that places of public accommodation are not limited to physical spaces.
When interpreting statutes, courts should first look at the text itself. United States v.
Alvarez-Sanchez, 511 U.S. 350, 356 (1994). If the plain meaning of the statute is clear, the plain
meaning of the statute applies. See Carparts, 37 F.3d at 21. A statute is ambiguous if the plain
meaning of the statute and policy goals of the statute do not lend themselves to a singular
interpretation. See In re Friedman’s Inc., 738 F.3d 547, 554 (3d Cir. 2013). A circuit split and
contrasting legal positions are not themselves indicative of ambiguity, but may provide evidence
of existing ambiguities. See Dewsnup v. Timm, 502 U.S. 410, 416 (1992). If the ADA is
ambiguous, this Court should consider congressional intent, legislative history, agency regulations,
and public policy concerns. See Carparts, 37 F.3d at 21–23.
When interpreting the “place of public accommodation” definition within Title III of the
ADA, the First and Seventh Circuits, holding that no physical location is necessary for the ADA
to apply, find that Title III of the ADA is unambiguous. See Carparts, 37 F.3d at 21 (stating that
the plain meaning of the public accommodation categories does not require entry into a physical
structure); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (stating that the
meaning of the statute plainly prevents all spaces, physical or not, from excluding persons with
disabilities). Similarly, the Third, Ninth, and Eleventh Circuits find that the ADA unambiguously
requires that a place of public accommodation be tied to physical location. Ford v. Schering-
Plough Corp., 145 F.3d 601, 612–13 (3d Cir. 1998) (holding that the plain meaning of place of
public accommodation requires a physical place); Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104, 1114 (9th Cir. 2000) (stating that the public accommodations listed in the statute
are physical places, thus Title III requires a tie to a physical location); Rendon v. Valleycrest
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Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) (holding that off-site services can be places of
public accommodation if they are tied to a physical location).
When looking at Title III’s plain language, the First Circuit highlights the inclusion of the
“travel service” category to support the interpretation that the ADA applies to non-physical
locations. Carparts, 37 F.3d at 22. When the ADA was passed, travel services were not often
provided at physical locations, rather they were provided by mail or telephone. Id. Thus, because
travel services are not confined to physical locations, the ADA does not require a physical location
to be a place of public accommodation. See id. Additionally, Title III covers services “of” a place
of public accommodation and does not solely cover services “in” or “at” a place of public
accommodation. 42. U.S.C. § 12182(a). Thus, “[t]o limit the ADA to discrimination in the
provision of services occurring on the premises of a public accommodation would contradict the
plain language of the statute.” Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 201 (D.
Mass. 2012) (quoting Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp. 2d 946, 953 (N.D. Cal.
2006)). The plain meaning of Title III clearly indicates that a physical location is not necessary in
order to be a place of public accommodation.
Courts further interpret the plain meaning of Title III by using the canon of construction
ejusdem generis. See e.g., Nat’l Fed’n of the Blind v. Scribd Inc., 97 F.Supp. 3d 565, 572 (D. Vt.
2015). Latin for “of the same kind,” this canon is used to interpret lists or categories within a
statute. See, e.g., id.; Weyer, 198 F.3d at 1114; Carparts, 37 F.3d at 19–20. The Ninth Circuit states
that the public accommodation categories are all of the same kind because the categories list only
physical places, and therefore Title III only applies if there is a physical location. See Weyer, 198
F.3d at 1114. This is an improper characterization of the categorical lists that define “place of
public accommodation” because requiring a physical location reads an extra condition into the
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statute. The definition of “place of public accommodation” does not include a physical location
requirement. The statute lists out physical places as examples, but does not install a physical barrier
upon each category; it allows places that are not explicitly listed in the statute to be subject to the
ADA. 42 U.S.C. § 12181(7) (stating that “other place of exhibition or entertainment,” “other sales
or rental establishment,” “other service establishment,” “other place of education,” etc. are subject
to the ADA).
Ejusdem generis provides that when general words in a statute “follow the enumeration of
particular classes of things” then “those general words will be construed as applying only to things
of the same general class as those enumerated.” United States v. McKelvey, 203 F.3d 66, 71 (1st
Cir. 2000). The particular class of things listed in the ADA are not physical places, rather they are
general categories of places, such as “place[s] of exhibition or entertainment” and “sales or rental
establishment[s].” See 42 U.S.C. § 12181(7). So long as the place at issue falls within one of the
general enumerated Title III categories, it will be considered a place of public accommodation
under the ADA. See Nat’l Ass’n of the Deaf, 869 F. Supp. 2d at 200 (stating that Netflix’s online
video streaming service is analogous to a brick-and-mortar video rental store as they are both “sales
or rental establishment[s]”). In this case, Spicy Peach’s online video streaming service is
considered a place of public accommodation just like video services provided in movie theatres
because they both fall within the general category of “place of exhibition or entertainment.” As
such, Spicy Peach’s website must accommodate Mr. Fauci’s hearing disability.
Since multiple circuits have a split interpretation of Title III of the ADA, there is evidence
of a potential ambiguity in the statute. See Dewsnup, 502 U.S. at 416. While the plain language
supports the fact that all websites that fall within an enumerated category are places of public
accommodation, if this Court is not convinced that the text on its face supports this conclusion,
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this Court should look to congressional intent and legislative and agency history. Congressional
intent, legislative history, and agency interpretive history all support the conclusion that the ADA
applies to websites.
2. The legislative history and agency interpretation of the ADA require websites to be places of public accommodation.
Congress intended for the ADA to apply to websites in order to fully eliminate
discrimination on the basis of disability in the “full and equal enjoyment” of goods and services.
See 42 U.S.C. § 12182(a). When interpreting a statute, courts do not interpret its words in a
vacuum, rather they also look to its statutory purpose and legislative history. See Abramski v.
United States, 573 U.S. 169, 178 (2014). If the statutory language is ambiguous, courts should
examine congressional intent. See Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 872 (9th
Cir. 1981). Though Congress and the Department of Justice (DOJ) have not explicitly stated that
all websites are subject to the ADA, legislative and agency history support this interpretation.
The ADA was signed into law prior to the advent of the internet on July 26, 1990. Pub. L.
101-336. While the internet was not available for public use until after the ADA was passed,
Congress intended for the ADA to adapt to technological advancements. H.R. Rep. 101-485, 108
(1990) (“The Committee intends that the types of accommodation and services provided to
individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly
changing technology of the times.”). The First Circuit, persuaded by this congressional intent,
stated that it would be “irrational” if persons who purchased services at a brick-and-mortar location
were protected by the ADA, but persons who purchased services by telephone or mail, or in this
case online, were not. Carparts, 37 F.3d at 19 (“Congress could not have intended such an absurd
result.”). As a vast majority of establishments move their goods and services online, it would be
irrational and an “absurd result” to not apply the ADA to all public accommodation websites. Id.
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Additionally, the DOJ has consistently interpreted the ADA to apply to public
accommodation websites. Since the DOJ is the ADA’s enforcement agency, its informal
interpretation of the law is given persuasive effect on the courts. See Robles, 913 F.3d at 906.
(“[S]ince it announced its position in 1996, DOJ has repeatedly affirmed its application of Title III
to Web sites of public accommodations”) (internal citations omitted); Gorecki v. Hobby Lobby,
Inc., 2017 U.S. Dist. Lexis 109123, at *13 (C.D. Cal. June 15, 2017) (holding that websites are
covered by the ADA because the DOJ’s statements and actions indicate such). The DOJ’s
interpretation of the ADA should be given some deference if it is reasonable and persuasive. See
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (finding that thoroughness of the
interpretation’s reasoning and its consistency over time can give it persuasive effect). The fact that
the DOJ’s interpretation comes in the form of legal briefs does not preclude its persuasive effect.
See Auer v. Robbins, 519 U.S. 452, 462 (1997).
The DOJ has not issued formal regulations stating that the ADA applies to websites, but it
has informally expressed this view throughout the ADA’s 30-year history. In 1996, Assistant
Attorney General of the DOJ’s Civil Rights Division Deval L. Patrick wrote a letter to Senator
Tom Harkin stating that places of public accommodation that have websites must ensure that their
websites are accessible. See Letter from Deval L. Patrick, Assistant Attorney General, DOJ (Sep.
9, 1996), https://www.justice.gov/crt/foia/tal712.txt (“Covered entities that use the Internet for
communications regarding their programs, goods, or services must be prepared to offer those
communications through accessible means as well.”). In 2002, the DOJ filed an amicus brief in
Rendon urging the court to find that off-site services are places of public accommodation. Brief
for the United States as Amicus Curiae in Support of Appellant, No. 01-11197, 2001 WL
34094038, at *18 (11th Cir. May 3, 2001) (stating that “even if the [Who Wants to Be A
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Millionaire] selection process is viewed as a separate and independent privilege or service, it need
not occur on-site to be covered by Title III [of the ADA]”). In 2018, the DOJ provided further
guidance in a letter to the U.S. House of Representatives stating that the DOJ had interpreted the
ADA to apply “to public accommodations’ websites over 20 years ago.” Letter from Stephen E.
Boyd, Assistant Attorney General, DOJ (Sep. 25, 2018).
These statements of interest provide further indication that not only did Congress intend
for the ADA to apply to websites, but the DOJ intends to enforce the ADA against all public
accommodation websites, as well. Throughout the last 20 years, the DOJ has made clear to the
public in the form of letters and legal briefs, that websites are subject to the ADA. The DOJ has
been consistent in its reasoning that websites are places of public accommodation under Title III
because such an interpretation furthers congressional intent to eliminate discrimination on the basis
of disability. See Brief of the United States of America, No. 01-11197, 2001 WL 34094038, at *5.
Because the DOJ uses valid reasoning and is consistent in its opinion over time, its statements of
interest should be persuasive on this Court. See Skidmore, 323 U.S. at 140. Thus, this Court should
hold that websites themselves are places of public accommodation under the ADA.
3. Public policy requires the ADA to be broadly interpreted in order to progress with societal and technological needs.
Title III of the ADA does not limit the definition of “place of public accommodation” to
physical places, and public policy requires the same.
“Title III covers both tangible barriers, that is physical and architectural barriers
that would prevent a disabled person from entering an accommodation’s facilities
and accessing its good, services, and privileges,… and intangible barriers, such as
eligibility requirements and screening rules or discriminatory policies and
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procedures that restrict a disabled persons ability to enjoy the defendant entity’s
goods, services and privileges.”
Rendon, 294 F.3d at 1286 (finding that the call in procedures to be a contestant on the show “Who
Wants to Be A Millionaire” were subject to the ADA) (emphasis added). Intangible barriers are
subject to the ADA because the ADA protects a person’s access to goods or services on or off a
physical site. See id. at 1283–1284.
To hold that the ADA only applies to physical spaces would subvert public policy because
almost all stores and sales facilities use telephonic or virtual means to sell their goods and services.
See Carparts, 37 F.3d at 19 (stating that the ambiguity of the place of public accommodation
definition “considered together with agency regulations and public policy concerns persuades us
that the phrase is not limited to physical structures”). Services provided or used in the home are
still places of public accommodation if they fall within the twelve categories listed in the statutory
text of the ADA. See Nat’l Ass’n of the Deaf, 869 F. Supp. 2d at 200–01 (holding that Netflix’s
Watch Instantly video streaming service was a place of public accommodation within the scope of
“place of exhibition and entertainment,” “place of recreation,” “sales or rental establishment,” and
“service establishment”).
Here, Spicy Peach’s online video streaming services are inaccessible to Mr. Fauci because
they lack closed captioning. The lack of closed captioning is an intangible barrier that prohibits
Mr. Fauci’s full and equal enjoyment of Spicy Peach’s video services. Spicy Peach improperly
argues that because the site of sale is online and not at its brick-and-mortar location, that the ADA
does not apply. R. at 21. However, like in Netflix, where an in-home video streaming service was
a place of public accommodation, F. Supp. 2d at 200, here, Spicy Peach’s online video rental
service is a place of public accommodation within the “place of exhibition and entertainment,”
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“place of recreation,” “sales or rental establishment,” and “service establishment” categories
regardless of the existence of a physical store.
Additionally, Spicy Peach’s approach would ignore public policy concerns by rendering
the ADA ineffective in a technologically progressing world. Over the past decade, in-store retail
sales have declined, but e-commerce sales, sales made online, have a year-over-year increase of
129%. See Jia Wertz, 3 Emerging E-Commerce Growth Trends to Leverage in 2020, Forbes (Aug.
1, 2020), https://www.forbes.com/sites/jiawertz/2020/08/01/3-emerging-e-commerce-growth-
trends-to-leverage-in-2020/#48665a7a6fee. From 2011 to 2020, e-commerce has increased from
around five percent of total quarterly retail sales to over 15 percent. U.S. Census Bureau, Quarterly
Retail E-Commerce Sales 2nd Quarter 2020. Sale of consumer products and services are rapidly
moving to online, virtual formats. If this Court adopts Spicy Peach’s interpretation that no website
is subject to the ADA or, in the alternative, that the website must have a sufficient nexus to a
physical structure, disabled persons’ access to e-commerce would be inexcusably diminished. For
example, under Spicy Peach’s favored interpretation, Amazon, an online retail giant that accounted
for 37% of the retail e-commerce market share in 2017, J. Clement, U.S. Amazon retail e-
commerce CMV share 2016-2021, Statistica (Aug. 9, 2019),
https://www.statista.com/statistics/788109/amazon-retail-market-share-usa/, would not be subject
to Title III of the ADA because all of Amazon’s sales are made online, rather than in physical
stores. It would be unthinkable for Amazon, the largest retailer in the world, to evade ADA
compliance because websites are not considered places of public accommodation. Thus, this Court
should apply the ADA to all public accommodation websites.
Technological advancements cannot erode Mr. Fauci’s right to fully and equally enjoy the
same goods and services as abled persons. As technology advances, courts are hesitant to apply a
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narrow meaning to constitutional and statutory provisions. For example, the Supreme Court in
Kyllo v. United States, held that warrantless use of a thermal imaging device outside a person’s
home constituted a search and violated the Fourth Amendment and its privacy protections. 533
U.S. 27, 35–36 (2001) (stating that to hold otherwise would leave the homeowner’s privacy “at
the mercy of advancing technology”). Likewise, Mr. Fauci’s civil rights and liberties cannot be at
the mercy of advancing technology. Due to the public policy concerns regarding technological
advancement’s effect on disability rights, this Court should hold that all websites that fall within
enumerated categories are places of public accommodation subject to the ADA. Under this
interpretation, Spicy Peach violated the ADA and Mr. Fauci’s right to equal enjoyment of its
services because it did not provide closed captioning on its online videos.
B. If the Thirteenth Circuit Applies the Nexus Test, Spicy Peach’s Website is Still a Place of Public Accommodation Because Its Website is Tied to Its Physical Location.
Even if this Court holds that the “nexus test” applies, Spicy Peach’s website is still a place
of public accommodation under the ADA. The nexus test requires websites to have a sufficient
nexus to a physical location in order to be considered a place of public accommodation under the
ADA. See Robles, 913 F.3d at 905; Haynes v. Dunkin’ Donuts LLC et al., 741 Fed. App’x 752,
754 (11th Cir. 2018). A sufficient nexus is established if the website’s content is in some way
connected to the physical establishment. Robles, 913 F.3d at 905 (finding that there was a sufficient
nexus between Domino’s website and its physical location because Domino’s website allowed
customers to order pizza from a physical store for delivery or pickup). If there is a sufficient nexus
between the website and the physical location, the entire website is a place of public
accommodation. See id. at 905–906; Andrews v. Blick Art Materials, LLC, 368 F. Supp. 3d 381,
396–97 (E.D.N.Y. 2017) (stating that only requiring select aspects of Blick’s website to be covered
by the ADA would be “absurd” and “unworkab[le]”).
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In this case, Mr. Fauci was deprived of full and equal enjoyment of Spicy Peach’s online
services when he rented Home Alone and three other videos from their website because each video
lacked the closed captioning needed to accommodate his hearing disability. Home Alone was
available for rent both on Spicy Peach’s website, www.spicypeachrental.com, and at its brick-and-
mortar store. R. at 2. Additionally, the website contained store location information and sold gift
cards that could be used in-stores. Id. at 4. In Gorecki v. Hobby Lobby Stores, Inc., the court found
that Gorecki stated a claim under the ADA’s nexus test because the website contained similar in-
store content, the ability to purchase gift cards, and store location information. 2017 WL 2957736
at *3–4 (C.D. Cal. 2017). Here, Mr. Fauci establishes a nexus for the exact same reasons. The
District Court contends that it is unclear whether or not the availability of similar video content
online and in-stores is sufficient to establish a nexus. R. at 21. However, the ability to purchase
gift cards and access store information online, both of which are available on Spicy Peach’s
website, is sufficient to establish a nexus. See Haynes, 741 Fed. App’x at 754 (finding that the
ability to make gift card purchases and gather physical store information online is a sufficient
nexus because it denies equal enjoyment of goods and services to disabled persons). Because a
sufficient nexus between Spicy Peach’s website and physical store was established, Spicy Peach’s
website is a place of public accommodation under the ADA.
The Northern District of California has improperly held that only the sections of the
website that establish a nexus with the physical store are subject to the ADA. See Target., 452 F.
Supp. 2d at 956. The Eastern District of New York recognizes that applying the nexus test in this
way is “unworkab[le]” and “absurd.” See Andrews, 368 F. Supp. 3d at 396–97. The Target test
circumvents the express purpose of the ADA to prohibit and eliminate discrimination against
disabled persons. See id. at 395; Carparts, 37 F.3d at 19. The Target test gives businesses an easy
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way around civil rights laws because compliance with the ADA could be circumvented if sales
establishments, including Spicy Peach, eliminate portions of their website that have any
connection with their physical store or if they close their brick-and-mortar store altogether.
Congress did not intend for such an absurd result that could dismantle disability rights in a growing
e-commerce economy; especially during the COVID-19 pandemic where access to brick-and-
mortar stores is limited or prohibited. Thus, this Court should hold that the entirety of Spicy
Peach’s website—not just parts of its website—is a place of public accommodation. In light of this
holding, “Spicy Peach’s failure to provide adequate closed captioning on its videos has deprived
the hearing impaired of the ‘full and equal enjoyment’ enjoyed by hearing individuals” in violation
of the ADA. R. at 23.
CONCLUSION
Based on the foregoing reasons and authorities, this Court should affirm the injunctive
relief granted by the District Court and require Spicy Peach to provide closed captioning on all
videos available on its website.