c.a. no. 20-00238 in the united states court of …...no. 17-cv-116-jl, 2017 wl 5186354, at *3...
TRANSCRIPT
Team A
C.A. No. 20-00238
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
ANTHONY FAUCI,
Plaintiff-Appellee,
v.
SPICY PEACH, INC.,
Defendant-Appellant.
BRIEF FOR PLAINTIFF-APPELLEE
Team A
Attorneys for Plaintiff-Appellee
Team A
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TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
TABLE OF AUTHORITIES ...................................................................................................... iii
STATEMENT OF THE ISSUES ..................................................................................................1
STATEMENT OF FACTS ............................................................................................................1
SUMMARY OF THE ARGUMENT ...........................................................................................4
ARGUMENT ..................................................................................................................................5
I. THE DISTRICT COURT PROPERLY CONSIDERED ANTHONY FAUCI’S
NOVEL ARGUMENT DESPITE IT NOT HAVING BEEN CONSIDERED BY THE
MAGISTRATE JUDGE. ...................................................................................................5
A. Properly Construed, the FMA Requires District Courts to Review All
Arguments Presented in Objection to a Magistrate’s R&R Even if Made for
the First Time to the District Court. ....................................................................6
1. Involuntary Waiver of Arguments Not Raised Before the Magistrate
Contravenes Due Process and the Article III Authority of District
Court Judges to Make the Final Determination of All Matters Before
Them............................................................................................................6
2. This Court Should Not Read Any Form of Involuntary Waiver Into the
FMA, Particularly in Light of the Question as to Its Constitutionality.
......................................................................................................................8
3. Considering the Constitutional Interests Involved and the Need to
Fairly Construe the FMA, This Court Should Hold that Fauci’s New
Argument Must Be Heard by the District Court, and Let Congress
Amend the Statute If Necessary. ...............................................................9
B. In the Alternative, a Reasonable Interpretation of the FMA Gives District
Courts Discretion to Decide Whether to Hear Issues Not Raised Before the
Magistrate. ............................................................................................................11
1. Discretionary Review is Consistent with the Discretion of Federal
Courts of Appeals to Determine Whether to Hear Appeals When a
Party Fails to Object to a Magistrate’s R&R. .......................................12
2. Discretionary Review is Consistent with the Nature of De Novo Review
that the FMA Gives to District Courts. ..................................................13
3. If This Court Adopts the Discretionary Review Rule, It Should Further
Adopt the Six-Factor Wells Fargo Test Cited by the District Court and
Find that Fauci’s Second Argument Deserves Consideration. ............15
II. SPICY PEACH’S WEBSITE IS A PLACE OF PUBLIC ACCOMMODATION
UNDER THE ADA BECAUSE THE ACT’S LEGISLATIVE HISTORY
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INDICATES THAT PUBLIC ACCOMMODATION “SHOULD BE CONSTRUED
LIBERALLY.” .................................................................................................................17
A. This Court Should Adopt a Rule that a Website is Always a Place of Public
Accommodation to Fulfill the Purpose of the ADA. .........................................18
1. Since the Purpose of the ADA Is to Remedy Widespread Discrimination
Against Disabled Individuals, a Website Should Always be Considered
a Place of Public Accommodation. .........................................................19
2. If this Court Adopts the Always a Place of Public Accommodation Rule,
Spicy Peach’s Website is a Place of Public Accommodation. ..............21
B. In the Alternative, This Circuit Should Adopt the Nexus Test and Find that
There is a Sufficient Nexus Between Spicy Peach’s Website and the Spicy
Peach Video Rental Store and Thus the Website Is a Place of Public
Accommodation....................................................................................................22
1. Spicy Peach’s Website is a Place of Public Accommodation Under the
Nexus Test Because It Provides Access to Store Services, is a Gateway
to Store Services, and Creates Intangible Barriers to Store Services. 22
a. The Spicy Peach Website Meets the Nexus Test by Providing
Access to Goods and Services at the Spicy Peach Brick-and-
Mortar Store. .................................................................................22
b. The Spicy Peach Website Meets the Nexus Test by Acting as a
Gateway to Its Physical Store. ......................................................24
c. The Spicy Peach Website Meets the Nexus Test Because the Lack
of Subtitles in Its Online Videos Is an Intangible Barrier to Store
Services. .........................................................................................25
2. The Nexus Test Is Archaic Because It Fails to Regulate the Changes in
Web-Based Businesses and Violates Public Policy. ..............................26
C. The Rule that Only a Physical Store Can Be a Place of Public Accommodation
Is a Misinterpretation of the ADA and Its Legislative History, and This Court
Should Not Adopt It. ............................................................................................27
1. The Fifth Circuit’s “Actual Store” Test Resulted from a
Misinterpretation of the Noscitur a Sociis Canon and Violates the Plain
Language of the ADA. .............................................................................27
2. The Department of Justice First Articulated that the ADA Applies to
Public Accommodations’ Websites Over 20 Years Ago Because It
Understands Congress Did Not Intend for the ADA to Expire. ..........29
CONCLUSION ............................................................................................................................30
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TABLE OF AUTHORITIES
Cases
Access Now, Inc. v. Blue Apron, LLC,
No. 17-cv-116-JL, 2017 WL 5186354 (D.N.H. Nov. 8, 2017) .........................................20
Borden v. Sec’y of Health & Human Servs.,
836 F.2d 4 (1st Cir. 1987) ....................................................................................................8
Campbell v. U.S. Dist. Court for the N. Dist. of Cal.,
501 F.2d 196 (9th Cir. 1974) .......................................................................................10, 13
Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England,
37 F.3d 12 (1st Cir. 1994) ......................................................................................17–20, 29
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) ...........................................................................................................29
Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833 (1986) ...................................................................................................6, 8, 12
Ditto v. McCurdy,
510 F.3d 1070 (9th Cir. 2007) ...........................................................................................14
Doe v. Mut. of Omaha Ins. Co.,
179 F.3d 557 (7th Cir. 1999) .......................................................................................18, 20
Earll v. eBay, Inc.,
599 F. App'x 695 (9th Cir. 2015) .......................................................................................26
Ford v. Schering-Plough Corp.,
145 F.3d 601 (3d Cir. 1998)...............................................................................................22
Freeman v. DirecTV, Inc.,
457 F.3d 1001 (9th Cir. 2006) ...........................................................................................14
Gil v. Winn Dixie Stores, Inc.,
242 F. Supp. 3d 1315 (S.D. Fla. 2017) ..................................................................22, 24, 25
Haynes v. Dunkin’ Donuts LLC,
741 Fed. App’x 752 (11th Cir. 2018) ....................................................................17, 22–24
Hynes v. Squillace,
143 F.3d 653 (2d Cir. 1998)...................................................................................11–12, 15
Int'l Ass'n of Machinists v. Street,
367 U.S. 740 (1961) .........................................................................................................8, 9
Magee v. Coca-Cola Refreshments USA, Inc.,
833 F.3d 530 (5th Cir. 2016) .................................................................................17–18, 27
Morgan v. Joint Admin. Bd.,
268 F.3d 456 (7th Cir. 2001) .............................................................................................20
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Nat'l Ass'n of the Deaf v. Netflix, Inc.,
869 F. Supp. 2d 196 (D. Mass. 2012) ..........................................................................18–21
Nat'l Fed'n of the Blind v. Scribd Inc.,
97 F. Supp. 3d 565 (D. Vt. 2015).......................................................................................28
Nat’l Fed’n of the Blind v. Target Corp.,
452 F. Supp. 2d 946 (N.D. Cal. 2006) .......................................................17–18, 22–24, 28
Pallozzi v. Allstate Life Ins. Co.,
198 F.3d 28 (2d Cir. 1999)...........................................................................................19–20
Park Motor Mart, Inc. v. Ford Motor Co.,
616 F.2d 603 (1st Cir. 1980) ................................................................................................9
Parker v. Metro. Life Ins. Co.,
121 F.3d 1006 (6th Cir. 1997) ...........................................................................................22
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co.,
840 F.2d 985 (1st Cir. 1988) ..........................................................................................9, 11
PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001) .....................................................................................................17, 19
Rendon v. Valleycrest Prods., Ltd.,
294 F.3d 1279 (11th Cir. 2002) .........................................................................................25
Reno v. ACLU,
521 U.S. 844 (1997) ...........................................................................................................30
Ridenour v. Boehringer Ingelheim Pharm., Inc.,
679 F.3d 1062 (8th Cir. 2012) .............................................................................................9
Robles v. Domino’s Pizza, LLC,
913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019) ........................22–25, 28
Salve Regina Coll. v. Russell,
499 U.S. 225 (1991) ...........................................................................................................14
Singh v. Superintending Sch. Comm. of the City of Portland,
593 F. Supp. 1315 (D. Me. 1984) ........................................................................................8
Singleton v. Wulff,
428 U.S. 106 (1976) .....................................................................................................12–13
Thomas v. Arn,
474 U.S. 140 (1985) .......................................................................................7–8, 10, 13, 16
Thomas v. Union Carbide Agric. Prods. Co,
473 U.S. 568 (1985) .............................................................................................................6
United States v. Elsoffer,
644 F.2d 357 (5th Cir. 1981) ...............................................................................................7
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United States v. George,
971 F.2d 1113 (4th Cir. 1992) .......................................................................................7, 14
United States v. Raddatz,
447 U.S. 667 (1980) ...........................................................................................7, 10, 13–14
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) .......................................12, 15
Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104 (9th Cir. 2000) .....................................................................................18, 26
Williams v. McNeil,
557 F.3d 1287 (11th Cir. 2009) ...........................................................................................9
Zervos v. Verizon N.Y., Inc.,
252 F.3d 163 (2d Cir. 2001)...............................................................................................14
Statutes
28 U.S.C. § 636 ..................................................................................................................5–7, 9, 13
42 U.S.C. § 12101 ..................................................................................................19–20, 26–27, 29
42 U.S.C. § 12181 ..........................................................................................................................17
42 U.S.C. § 12182 ..............................................................................................................17, 21, 28
Other Authorities
Black’s Law Dictionary (11th ed. 2019)..........................................................................................9
Disability Impacts All of Us, Centers for Disease Control and Prevention (Sept. 9, 2019),
https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html ...........29
Fed. R. Civ. P. 72 .....................................................................................................................10–11
Fed. R. Evid. 410 .............................................................................................................................3
H.R. Rep. No. 94-1609 (1976) .......................................................................................9–10, 13–14
H.R. Rep. No. 101-485 (1990) .......................................................................................................20
Letter from Stephen E. Boyd, Assistant Att'y Gen., U.S. Dep't of Just., to Ted Budd, Rep.,
U.S. House of Representatives (Sept. 25, 2018) ............................................................................29
Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity
“Crisis”: Charting A Path for Federal Judiciary Reform, 108 Cal. L. Rev. 789 (2020) .............11
S. Rep. No. 94-625 (1976) .............................................................................................................13
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U.S. Const. art. III ............................................................................................................................6
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STATEMENT OF THE ISSUES
I. Whether the Federal Magistrates Act permits a district court to hear arguments, either
mandatorily or upon the exercise of discretion, raised in objection to a magistrate judge’s
Report and Recommendation when the litigant did not make the argument at the magistrate
level?
II. Whether the Spicy Peach’s website is a place of public accommodation under Title III of
the Americans with Disabilities Act when the website uses the same 48-hours return policy
as Spicy Peach’s brick-and-mortar store, customers are allowed to buy gift cards on the
website that can be used both online and in store, and the website contains the store location
and information?
STATEMENT OF FACTS
Factual History
Respondent, Anthony Fauci, suffers from hearing impairment so severe it renders him
completely deaf. R. at 3. Despite his deafness, Fauci continues to enjoy video entertainment, which
is made accessible to him via closed captioning. R. at 4. In pursuit of this type of entertainment,
Fauci went online to Petitioner Spicy Peach, Inc.’s website to rent and stream a video on March
15, 2019. R. at 3. To his dismay, Fauci found that Spicy Peach’s streaming version of “Home
Alone 2: Quarantined Together” had no closed captioning. R. at 4. Fauci was unable to enjoy the
service he had paid for because he had no way to understand the dialogue, which was critical to
the plot of the film. Id. Following Fauci’s rental of “Home Alone 2,” Fauci also rented three adult
films and found them all equally without closed captioning. Id.
Similar to its website, Spicy Peach also has a brick-and-mortar store in which it offers
video rentals. Id. In fact, Spicy Peach offers a “Home Alone 2” rental with closed captioning in its
brick-and-mortar store. Id. The three additional adult films that Fauci rented are available only
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online without closed captioning. Id. Whether renting films from the Spicy Peach website or brick-
and-mortar store, customers are given 48 hours of access to the film. R. at 10. The Spicy Peach
website offers additional services as well. R. at 4. For example, the website provides location and
contact information for the brick-and-mortar store as well as the option to purchase gift cards
online. Id. The gift cards can be used either online or in person at the Spicy Peach store. Id. The
Spicy Peach website cannot be used to purchase a rental for pick-up in store. Id.
Spicy Peach intended its website to “operate in tandem” with its brick-and-mortar stores.
R. at 3. Many of Spicy Peach’s films are available to rent both online and at its store. R. at 4.
However, none of the videos available for streaming on the Spicy Peach website provide closed
captioning. Id. Therefore, the streaming content on Spicy Peach’s website is, for all practical
purposes, completely unavailable to Fauci due solely to his disability. R. at 3–4.
Procedural History
Acting pro se, Fauci filed a complaint against Spicy Peach for violations of the Americans
with Disabilities Act (ADA) on April 1, 2019. R. at 11. Both parties moved for summary judgment
on July 1, 2019. Id. The United States District Court for the District of Emory referred the matter
to Magistrate Judge Andrew Cuomo on July 7, 2019, and Judge Cuomo instructed the parties to
file any oppositions to the motions for summary judgment by August 1, 2019. Id. As he was still
acting pro se, Fauci lacked the time and resources to review the discovery documents he had
received from Spicy Peach within three weeks, and he instead filed a motion for additional
discovery time. Id. Judge Cuomo denied the extension on August 8, 2019 but allowed Fauci an
additional three weeks to file his opposition by September 1, 2019. Id.
In early August 2019, Coron & Varis, LLP heard about Fauci’s ADA complaint and offered
to represent him pro bono. Id. Fauci accepted, giving Coron & Varis less than three weeks to
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review the entire litigation file, including all discovery and prior motions. Id. Fauci’s new counsel
was able to prepare and file a new summary judgment motion by the September 1, 2019 deadline.
Id. Unfortunately, due to the short timeframe, Fauci’s filing did not include a legal argument for
the adoption of the First and Seventh Circuit rule that all websites are places of public
accommodation under Title III of the ADA. R. at 11, 22.
On August 29, 2019, Fauci’s counsel filed a new motion seeking reconsideration of Judge
Cuomo’s August 8th order denying the extension of discovery and to stay adjudication of summary
judgment. R. at 11–12. Judge Cuomo granted both motions and set a new deadline of January 13,
2020 for discovery. R. at 12.
On January 27, 2020, Judge Cuomo issued his Report and Recommendation (R&R),
recommending that Spicy Peach’s motion for summary judgment be granted. Id. Pursuant to the
Federal Rules of Evidence, objections to the R&R were due by February 10, 2020. Id.; see Fed. R.
Evid. 410. On February 1, 2020, Fauci’s counsel electronically submitted a letter seeking extension
of the objection period, but a technical error prevented the letter from entering the e-filing system
until February 11, 2020, the day after the deadline. R. at 12. Requests for extensions of this kind
are routinely granted. Id. Being unaware of Fauci’s request for an extension, however, the Court
adopted Judge Cuomo’s R&R on February 14, 2020. Id. Within the week, on February 20, 2020,
Fauci filed a motion opposing the adoption of Judge Cuomo’s R&R and arguing that websites are
always places of public accommodation subject to the rules of Title III of the ADA. Id.
The United States District Court for the District of Emory, recognizing that Fauci’s failure
to file a timely objection was due to a system error, vacated its adoption of Judge Cuomo’s R&R.
Id. The court further agreed to hear Fauci’s new argument. Id. Additionally, in its Memorandum
and Order, the district court agreed with Fauci’s new argument and held that websites are always
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places of public accommodation under the ADA. R. at 22. As a result, the court granted declaratory
relief and an injunction in favor of Fauci. R. at 24. Spicy Peach appealed to this Court. R. at 1.
SUMMARY OF THE ARGUMENT
The first issue in this case is whether a district court has authority under the Federal
Magistrates Act (FMA) to hear arguments made for the first time upon objection to a magistrate
judge’s R&R. This Court should adopt a rule requiring district courts to hear such arguments for
three reasons: this interpretation of the FMA is consistent with Article III of the Constitution; the
FMA does not state that parties can waive their right to bring new arguments in objection to an
R&R; and Congress could have included such a waiver if it so desired. In the alternative, this Court
could also craft a rule that gives district courts discretion to hear new arguments following an
objection but without the requirement to do so. This middle ground approach has the downside of
reading a provision into the FMA that is not there, but it would be reasonable in light of similar
authority possessed by the courts of appeals and in light of the de novo review authority of the
district court. Accordingly, the Court should either adopt a rule requiring district courts to hear
such arguments or give discretion to hear them in worthy cases, and Fauci should be permitted to
argue that websites are always places of public accommodation.
Regarding the second issue, this Court should find that Spicy Peach’s website is a place of
public accommodation under the ADA because that interpretation is aligned with Congress’ intent
as demonstrated in the legislative history and supported by the First and Seventh Circuits. Since
this issue is of first impression to this Court, it should look to other circuit courts for guidance.
However, the circuit courts are not in unison on this issue. For instance, the First and Seventh
Circuits have held that a website is a place of public accommodation under the ADA. The Ninth
and Eleventh require sufficient nexus—the nexus test—to a brick and mortar store for a website
to be considered a place of public accommodation. Lastly, the Fifth Circuit has held that a website
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is never a place of public accommodation and that a place of public accommodation requires an
“actual store.” The First Circuit approach is most in sync with the legislative history of the ADA,
which suggests that the Act should be “construed liberally.” Accordingly, this Court should adopt
the approach of the First Circuit and uphold the decision of the district court below.
ARGUMENT
I. THE DISTRICT COURT PROPERLY CONSIDERED ANTHONY FAUCI’S
NOVEL ARGUMENT DESPITE IT NOT HAVING BEEN CONSIDERED BY THE
MAGISTRATE JUDGE.
Under the FMA, the district courts of the United States may designate magistrate judges to
adjudicate certain kinds of matters. 28 U.S.C. § 636. Specifically, and as relevant in this case,1
magistrate judges may hear injunctive motions, hear summary judgment motions, conduct hearings
theretofore, and “submit to a judge of the [district] court proposed findings of fact and
recommendations for the disposition” of the motion. Id. § 636(b)(1). If no litigant objects to the
magistrate’s R&R, the district court may “accept, reject, or modify” the recommendation in a final
judgment. Id. § 636(b)(1)(C). If a party objects, the district court must conduct a de novo review
of the matter in light of the objections raised. Id. The first issue in this case arises from the fact
that the statute is silent as to whether the district court may hear arguments made in objection to
the R&R that the party did not make in front of the magistrate. R. at 13.
The federal circuit courts are split on this question. Id. The best interpretation of the plain
language of the FMA requires this circuit to adopt a mandatory review rule requiring district courts
to hear all arguments before them, whether heard previously by a magistrate or not. This approach
provides an equitable outcome in this case and ensures due process to all litigants. Alternatively,
this circuit should adopt a discretionary review rule giving districts courts discretion over whether
1 Magistrate judges also have authority to decide nondispositive motions, 28 U.S.C. § 636(b)(1)(A), and to decide
cases in which the parties consent to magistrate decision-making, id. § 636(b)(3).
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to hear novel arguments. This Court should reject an automatic, mandatory waiver of arguments
not raised before the magistrate because such a rule has questionable constitutional validity and
violates congressional purpose.
A. Properly Construed, the FMA Requires District Courts to Review All
Arguments Presented in Objection to a Magistrate’s R&R Even if Made for
the First Time to the District Court.
Under the FMA, if a party objects to a magistrate judge’s R&R, the district court must
conduct de novo review of the portions or the R&R to which a party objected. 28 U.S.C. §
636(b)(1)(C). Neither the FMA nor its legislative history state that the failure to raise a specific
argument before the magistrate will ever waive that argument before the district court, assuming
the party properly objected. Accordingly, this Court should hold that a party does not waive such
arguments, and for three specific reasons: (1) the Article III considerations involved, (2) the need
to interpret statutes in a proper and constitutional manner, and (3) the deference due to Congress,
which retains the power to amend the statute if a need arises.
1. Involuntary Waiver of Arguments Not Raised Before the Magistrate
Contravenes Due Process and the Article III Authority of District
Court Judges to Make the Final Determination of All Matters Before
Them.
Article III of the Constitution protects “the role of the independent judiciary within the
constitutional scheme of tripartite government,” Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 583 (1985), while safeguarding the “right to have claims decided before judges who are
free from potential domination by other branches of government,” United States v. Will, 449 U.S.
200, 218 (1980); see generally U.S. Const. art. III. Even when matters are referred to a magistrate,
parties retain the right to be heard before the district court, and district courts retain authority to
hear every matter. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986).
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Thus, under Article III, district court judges are the ultimate arbitrator of federal cases,
including motions for summary judgment. United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir.
1981). Although district courts possess this constitutional authority, magistrates may carry out
some district court duties. United States v. Raddatz, 447 U.S. 667, 683 (1980). District courts may
give some weight to the findings of the R&R, and “that delegation does not violate Art[icle] III so
long as the ultimate decision is made by the district court.” Id. However, precluding Article III
judges from hearing all arguments effectively precludes them from making the final
determinations of cases, undermining their constitutional power and rendering their decisions
vulnerable to constitutional challenge. See United States v. George, 971 F.2d 1113, 1118 (4th Cir.
1992).
Additionally, under Article III, parties have a constitutional right to have their matter
considered before the district court, unless they voluntarily waive that right. See Thomas v. Arn,
474 U.S. 140, 155 (1985). In Thomas, the Supreme Court addressed whether a federal court of
appeals can adopt a rule barring appellate review if the party fails to object to the magistrate’s
R&R. Id. at 142. The Court held that such a rule is consistent with both the FMA and the
Constitution, emphasizing that due process and the statutory right to an appeal were satisfied when
the litigant had the opportunity to object and decided against it. Id. at 155. In other words, the
decision to waive an objection must be voluntary. See id.
Similarly, parties possess a statutory right under the FMA to de novo review by the district
court, and due process would be violated if that right were forcibly waived. The FMA has explicit
language laying out the process of waiver: parties who choose not to file an objection to a
magistrate’s R&R within fourteen days affirmatively waive their right to object. 28 U.S.C. §
636(b)(1)(C). In Thomas, the Supreme Court recognized that waiver occurs when the litigant
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voluntarily decides against objection after having time to consider the decision of the magistrate.
See 474 U.S. at 155. A party who chooses not to object effectively signs a waiver. See id. By
contrast, an automatic waiver of arguments not heard by the magistrate essentially imposes a
mandatory waiver on future litigants, because they have no right to have the district court fully
consider a new argument, even if they filed a timely objection. R. at 13. To impose such a
requirement would contravene due process by stripping away the required voluntariness of a
waiver of the right to a decision by an Article III judge. Furthermore, even a willing district court
would be unable to hear new arguments raised in objection to the magistrate’s R&R, thus
unconstitutionally contravening the district court’s Article III authority. Therefore, this Court
should avoid mandatory waiver’s unconstitutional implications and adopt a standard of mandatory
review of all arguments raised by litigants, even those not raised before the magistrate.
2. This Court Should Not Read Any Form of Involuntary Waiver Into the
FMA, Particularly in Light of the Question as to Its Constitutionality.
A party cannot be compelled to waive their constitutional rights, and statutes that purport
to do that should be interpreted differently if fairly possible. See Int'l Ass'n of Machinists v. Street,
367 U.S. 740, 749 (1961) (“Federal statutes are to be so construed as to avoid serious doubt of
their constitutionality.”). However, courts may not “ignore the legislative will in order to avoid
constitutional adjudication.” Schor, 478 U.S. at 841. In this case, there is nothing in the legislative
history to suggest that Congress intended to include a mandatory waiver, and thus this Court should
err on the side of a construction that is not constitutionally suspect.
Some circuit courts have erroneously taken the position that, under the FMA, “[p]arties
must take before the magistrate, ‘not only their “best shot” but all of their shots.’” See Borden v.
Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (quoting Singh v. Superintending
Sch. Comm. of the City of Portland, 593 F. Supp. 1315, 1318 (D. Me. 1984)). This requirement is
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simply not in the statute. On the contrary, the legislative history of the FMA suggests that Congress
intended district court judges to “give fresh consideration” to all issues objected to without regard
to whether they have been raised before a magistrate before “making the ultimate determination.”
H.R. Rep. No. 94-1609, at 1–2 (1976). Furthermore, the de novo standard of review selected by
Congress suggests that review should begin “anew” or from the beginning, which would include
all issues raised from the complaint through the objection bringing the case into district court. De
novo, Black’s Law Dictionary (11th ed. 2019).
Accordingly, to honor legislative intent and avoid an unconstitutional interpretation, the
Court should construe the FMA to require review of new arguments by the district court in every
case in which the litigant adheres to the fourteen-day objection window. See 28 U.S.C. §
636(b)(1)(C). It follows, then, that a mandatory waiver rule would be improper. See Street, 367
U.S. at 749. Even a rule allowing discretionary review would violate the holding of Street and
contravene congressional intent in some cases. See id.
3. Considering the Constitutional Interests Involved and the Need to
Fairly Construe the FMA, This Court Should Hold that Fauci’s New
Argument Must Be Heard by the District Court, and Let Congress
Amend the Statute If Necessary.
According to some circuit courts, “requiring the district court to consider new arguments
raised in the objections” would allow litigants to change tactics after a magistrate ruling. Williams
v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009). Courts have noted that mandatory review could
lead to parties skipping the magistrate process altogether and simply waiting for district court
review to make their best arguments. See, e.g., Ridenour v. Boehringer Ingelheim Pharm., Inc.,
679 F.3d 1062, 1067 (8th Cir. 2012); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840
F.2d 985, 986 (1st Cir. 1988). The concern, of course, is rooted in a desire for judicial economy.
See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) (“The purpose of
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the FMA is to relieve courts of unnecessary work.”). These concerns are unfounded and should
not override constitutional rights and proper statutory interpretation.
Practically, there are several reasons why the concerns regarding judicial economy under
a mandatory review rule are unfounded. First, district court judges would retain considerable
power over the handling of the case. In accordance with its de novo power, the court could accept
newly presented evidence, or keep the record closed. See Fed. R. Civ. P. 72 (“The district judge
may . . . receive further evidence.”) (emphasis added). The authority to limit the evidence presented
is consistent with the House Report issued upon passage of the bill. See H.R. Rep. No. 94-1609,
at 3 (“In some specific instances, however, it may be necessary for the judge to modify or reject
the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter
to the magistrate for further proceedings.”); see also Raddatz, 447 U.S. at 674 (“It should be clear
that on these dispositive motions, the statute calls for a de novo determination, not a de novo
hearing. We find nothing in the legislative history of the statute to support the contention that the
judge is required to rehear the contested testimony in order to carry out the statutory command to
make the required ‘determination.’”).
Second, the district court will only be required to listen to new arguments when a party
objects to the magistrate’s R&R. See Thomas, 474 U.S. at 150. When Congress compiled in House
Report 1609, it made clear that it had contemplated the fact that many cases would receive no
objection, stating: “If neither party contests the magistrate's proposed findings of fact, the court
may assume their correctness and decide the motion on the applicable law.” H.R. Rep. No. 94-
1609, at 3 (quoting Campbell v. U.S. Dist. Court for the N. Dist. of Cal., 501 F.2d 196, 206 (9th
Cir. 1974)). Moreover, even when a party files an objection, only a fraction of those cases
presumably will involve new arguments.
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Finally, district courts will not be outplayed by litigants who save their “knockout punch
for the second round.” See Paterson-Leitch, 840 F.2d at 991. If a party is circumventing the
magistrate level in this way, or if there is a need for further fact finding, the district court can
remand the case back to the magistrate judge. See Fed. R. Civ. P. 72 (“The district judge may . . .
return the matter to the magistrate judge with instructions.”). Furthermore, if district courts are
indeed overrun with unnecessary work, Congress monitors the workload of the federal courts. See
Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity
“Crisis”: Charting A Path for Federal Judiciary Reform, 108 Cal. L. Rev. 789, 821 (2020)
(discussing a 1970s example when Congress changed the magistrate system in response to a
“growing district court backlog”). Little more would motivate Congress to act than attorneys
disrespecting the role of federal magistrate judges and grinding the system to a halt. If that
happened, Congress could correct the issue by amending the FMA.
Considering both the authority of the district court to remand cases and Congress’ power
to act, there is no serious risk that the system will be overrun with litigants foregoing the magistrate
process and waiting to raise matters before the district court. The case before this Court better
reflects the types of cases to which mandatory review would apply. In this case, Fauci was not
gaming the system. He was unrepresented at the magistrate level, and the issue on appeal concerns
an uncertain and evolving body of law. R. at 15. Accordingly, this Court should adopt a standard
of mandatory review, hold that Fauci’s argument must be considered, and let the gamesmanship
of future litigants be dealt with by Congress when that issue arises.
B. In the Alternative, a Reasonable Interpretation of the FMA Gives District
Courts Discretion to Decide Whether to Hear Issues Not Raised Before the
Magistrate.
If this Court does not adopt a mandatory review rule, it should adopt, in the alternative, a
rule giving district courts discretion to review. See Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.
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1998). By avoiding a per se rule, the Court would neither mandate nor prohibit district courts from
hearing arguments not raised at the magistrate level. See id. Although there are advantages to
discretionary review, this approach remains less proper than mandatory review because it still
imposes a form of mandatory waiver, which is constitutionally suspect and absent from the statute
as discussed above. In effect, a party who fails to bring an argument before the magistrate risks
being forced to waive that argument when filing a timely objection. The difference between
discretionary review and fully mandatory waiver is that the district court may forgive this waiver
in sympathetic cases.
Despite the issues that discretionary review poses, it also poses certain advantages and it is
a superior approach to denying review in all cases. For one, discretionary review would mitigate
due process concerns because a factor in the decision to exercise discretion could be the
constitutional considerations involved. See Wells Fargo Bank, N.A. v. Sinnott, No. 2:07-CV-169,
2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010). Furthermore, in every case, an Article III judge
would determine whether to hear new arguments, and thus the final decision would come from the
authority of an Article III judge. See Schor, 478 U.S. at 848. Discretionary review is a reasonable
interpretation of the FMA because of (1) the similarities between circuit court and district court
discretionary review, (2) the nature of de novo review, (3) the availability of factors that can be
employed in the exercise of discretion to ensure that cases like Fauci’s are properly handled.
1. Discretionary Review is Consistent with the Discretion of Federal
Courts of Appeals to Determine Whether to Hear Appeals When a
Party Fails to Object to a Magistrate’s R&R.
District court discretionary review over arguments not raised before the magistrate would
be consistent with the discretion the federal courts of appeals have in similar matters. See Singleton
v. Wulff, 428 U.S. 106, 121 (1976). For instance, the courts of appeals have discretion hear any
legal issue, even if raised for the first time on appeal. See id. Courts of appeals generally exercise
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such discretion in cases where review is necessary to avoid injustice or when “proper resolution is
beyond any doubt.” Id. Furthermore, under Thomas, courts of appeals have discretion to hear
arguments even when a party fails to object to a magistrate’s R&R in a timely manner. See 474
U.S. at 155.
Congress intended for district courts to have wide discretion when parties file objections
to an R&R, and this intent is largely defeated if the district court’s discretion is far narrower than
that of the courts of appeals. See Raddatz, 447 U.S. at 674. In the Senate Report of the 1976
amendment of the FMA, Congress emphasized that the purpose of the bill was to give “ultimate
adjudicatory power” to district courts and grant them the “widest discretion” in handling magistrate
recommendations. S. Rep. No. 94-625, at 10 (1976).
Accordingly, the FMA requires—at the minimum—discretion to review new arguments.
In this case, if this Court finds that Fauci cannot raise the new argument before the district court,
it could nonetheless consider it now on appeal, thus defeating judicial economy. While Fauci
contends that district courts should always hear arguments raised in a timely objection, district
courts at the minimum should have the discretion that Congress intended, and certainly no less
opportunity to review the case than the courts of appeals have to do so.
2. Discretionary Review is Consistent with the Nature of De Novo Review
that the FMA Gives to District Courts.
When Congress amended the FMA in 1976, it made explicit that it intended for district
courts to have de novo authority over their cases. 28 U.S.C. § 636(b)(1). The House Report
accompanying the amendment stated that Congress had adopted the approach of a Ninth Circuit
case, quoting the following portion of it: “[The district] court may accept, reject or modify the
proposed findings or may enter new findings. It shall make the final determination of the facts and
the final adjudication.” H.R. Rep. No. 94-1609, at 4 (quoting Campbell, 501 F.2d at 207).
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When a court reviews de novo, it gives no deference to prior findings or conclusions. See
Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991); see also Ditto v. McCurdy, 510 F.3d 1070,
1075 (9th Cir. 2007); Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir. 2001). In House
Report 1609, Congress stated that de novo review means “fresh consideration to those issues to
which specific objection has been made.” H.R. Rep. No. 94-1609, at 3. Put another way, the court
is to “review the matter anew, the same as if it had not been heard before, and as if no decision
previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).
The court can rely on the magistrate’s R&R to the extent it chooses. Raddatz, 447 U.S. at 676.
A district court having discretion to review the arguments available is consistent with the
nature of de novo review. See George, 971 F.2d at 1118 (“[A]s part of its obligation to determine
de novo any issue to which proper objection is made, a district court is required to consider all
arguments directed to that issue, regardless of whether they were raised before the magistrate.”).
De novo review, by definition, means consideration of all issues not decided by the lower court.
See id. A court cannot truly have de novo authority if the arguments it can consider are constrained.
See id. Such constraint would “artificially limit the scope” of the district court’s de novo review
authority. See id.
Congress was clear that district courts must have “ultimate adjudicatory” authority over
the matter to which a party objected. See Raddatz, 447 U.S. at 676. The power to adjudicate means
the court must come to a formal conclusion, and a conclusion is based on the arguments that are
made to that end. In the instant case, the district court arrived at a different conclusion than that of
the magistrate, an outcome that would have been impossible if the court did not have authority to
look beyond the initial arguments made to the magistrate. R. at 19. Thus, if this Court holds that
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district courts have discretion to determine which arguments to hear, such a holding would be
consistent with the de novo authority that Congress intended the district courts to possess.
3. If This Court Adopts the Discretionary Review Rule, It Should Further
Adopt the Six-Factor Wells Fargo Test Cited by the District Court and
Find that Fauci’s Second Argument Deserves Consideration.
If this Court permits discretionary review, it should further adopt the District of Vermont’s
six-factor test for discretion. See Wells Fargo, 2010 WL 297830, at *4. The court articulated the
factors as follows:
(1) the reason for the litigant's previous failure to raise the new legal argument; (2)
whether an intervening case or statute has changed the state of the law; (3) whether
the new issue is a pure issue of law for which no additional fact-finding is required;
(4) whether the resolution of the new legal issue is not open to serious question; (5)
whether efficiency and fairness militate in favor or against consideration of the new
argument; and (6) whether manifest injustice will result if the new argument is not
considered.
Id. In arriving at these six factors, the court cited precedent from the Second Circuit regarding
whether district courts should have discretion to allow or reject supplemental evidence when
conducting de novo review of an R&R. See id. (citing Squillace, 143 F.3d at 656). Noting interests
in “efficiency and fairness,” the Second Circuit had found that district courts should have such
discretion. Squillace, 143 F.3d at 656.
Although the district court below did not explicitly adopt the Wells Fargo test, the court
acknowledged its merit. R. at 18 (describing the test as “the cleanest approach to determining
whether discretion should be employed and the most representative of striking a balance between
the tensions at the heart of the FMA”). The court further commended the test for accounting for
the fact that pro se litigants are often at a disadvantage; by tying district court discretion to the
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reason for the failure and to considerations of justice, courts can use their equitable power to
protect the due process rights for pro se litigants. R. at 19.
Finally, if this Court allows discretion and adopts the Wells Fargo test, Fauci should be
allowed to proceed with his new argument. The district court below, in obiter dictum, applied the
six factors to his case and found that he met the test. Id. (“Even if this Court were to apply the
Wells Fargo balancing test, this Court would rule in favor of hearing Fauci’s new argument.”). In
support of this finding, the court noted the novelty of the issue, the lack of any necessary fact-
finding, and the innocent reason Fauci did not make this argument at the outset. Id. It would make
little sense for this Court to announce a rule whereby the district court has discretion over a matter
and then to rule contrary to the district court’s exercised discretion.
Accordingly, this Court should permit Fauci to make his new arguments. Fauci presents a
new argument to the district court that he could not have presented at the magistrate level, in part
due to his pro se status and in part due to the evolving nature of this area of law. R. at 15. A ruling
in his favor—either allowing or requiring the district court to review his argument—will not open
the floodgates to every litigant in the federal court system to bypass the magistrate level. There are
sufficient safeguards in place to ensure judicial economy and still protect the ability of litigants to
have their arguments heard before an Article III judge. Thus, regardless of whether this Court
adopts a mandatory or discretionary review rule, Fauci should prevail on the first issue.2
2 As an additional alternative, this Court has discretion, under Thomas, to independently hear new arguments on
appeal. 474 U.S. at 155. Even if this Court rules against Fauci on the first issue, it should exercise its own discretion
to hear all the arguments pertinent to the resolution of the second issue.
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II. SPICY PEACH’S WEBSITE IS A PLACE OF PUBLIC ACCOMMODATION
UNDER THE ADA BECAUSE THE ACT’S LEGISLATIVE HISTORY
INDICATES THAT PUBLIC ACCOMMODATION “SHOULD BE CONSTRUED
LIBERALLY.”
Under Title III of the ADA, “[n]o individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services . . . of any place of public
accommodation by any person who . . . operates a place of public accommodation.” 42 U.S.C. §
12182(a). A place of public accommodation is defined by twelve non-exclusive categories in the
ADA,3 and the legislative history suggests that the term should be construed liberally to grant
people with disabilities access to all establishments available to the nondisabled. PGA Tour, Inc.
v. Martin, 532 U.S. 661, 676–77 (2001).
Whether a website can be a place of public accommodation is an issue of first impression
for the Thirteen Circuit.4 Usually, on issues of first impression, circuit courts look to other sister
courts for support in adopting a new legal rule. However, the circuit courts are divided into three
categories on this issue: some hold a website is always a place of public accommodation, others
hold a website is never a place of public accommodation, and still others say that a website must
have sufficient “nexus” to a physical location to be a place of public accommodation. See Carparts
Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, 37 F.3d 12, 20 (1st Cir. 1994)
(place of public accommodation); Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946,
952 (N.D. Cal. 2006) (applying the nexus test); Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x
752, 753 (11th Cir. 2018) (nexus test); Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d
530, 536 (5th Cir. 2016) (never a place of public accommodation).
3 Some public accommodation categories include: (A) an inn; (B) a restaurant, bar; (C) place of exhibition or
entertainment; (D) place of public gathering; (E) sales or rental establishment; etc. See 42 U.S.C. § 12181. 4 This brief assumes that a website otherwise meets the requirements of a public accommodation under the ADA,
such as the required number of employees. See R. at 22.
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This Court should adopt the First and Seventh Circuit rule that all websites are places of
public accommodation because those circuits interpreted the ADA in accordance with Congress’
intention to open the American economy to disabled persons as broadly as possible. See Carparts,
37 F.3d at 20; Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999). In the alternative,
this Court should adopt the nexus test used in the Ninth and Eleventh Circuit and find that Spicy
Peach’s website has sufficient nexus to Spicy Peach’s brick-and-mortar store to be a place of public
accommodation subject to Title III of the ADA. See Nat’l Fed’n of the Blind, 452 F. Supp. 2d at
952–54; Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000). Finally,
this Court should not adopt the view that a website is never a place of public accommodation
because that interpretation is contrary to the legislative history of the ADA. Contra Magee, 833
F.3d at 536.
A. This Court Should Adopt a Rule that a Website is Always a Place of Public
Accommodation to Fulfill the Purpose of the ADA.
This Court should adopt the view that a website is always a place of public accommodation.
As the First Circuit stated in Carparts, a web-based business is a place of public accommodation
because places of public accommodation are not limited to “actual physical structures.” 37 F.3d at
19. The First Circuit stated that “[i]t would be irrational” to reason otherwise. Id. The Court further
explained that if places of accommodations are limited to physical structures, someone who enters
an office is protected under the ADA, but someone who purchases the same services over the
telephone is not. Id. The Court concluded that “Congress could not have intended such an absurd
result.” Id.
Additionally, in National Association of the Deaf, the court held that the reasoning in
Carparts applies “with equal force to services purchased over the Internet.” Nat'l Ass'n of the Deaf
v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012). The court emphasized the fact that
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“business is increasingly conducted online,” and excluding online businesses from the ADA
“would ‘run afoul of the purposes of the ADA and would severely frustrate Congress's intent that
individuals with disabilities fully enjoy the goods, services . . . available indiscriminately to other
members of the general public.’” Id. (quoting Carparts, 37 F.3d at 20).
1. Since the Purpose of the ADA Is to Remedy Widespread Discrimination
Against Disabled Individuals, a Website Should Always be Considered
a Place of Public Accommodation.
Congress enacted the ADA to remedy widespread discrimination against disabled
individuals. PGA Tour, Inc., 532 U.S. at 675; see also 42 U.S.C. § 12101(a)(3) (“[D]iscrimination
against individuals with disabilities persists in such critical areas as employment, housing, public
accommodations, education, transportation, communication, recreation, institutionalization,
health services, voting, and access to public services.”). Congress concluded that there was an
undeniable need for a comprehensive national mandate to eradicate discrimination against disabled
individuals, and to include all people in the American economy. PGA Tour, Inc., 532 U.S. at 675.
The ADA itself states that its purpose is to “provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §
12101(b)(1).
Moreover, the ADA legislative history indicates that places of public accommodation
should be construed liberally. See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999).
In Pallozzi, the Second Circuit explained that the language of the statute was meant to guarantee
disabled individuals more than physical access. Id. The Pallozzi defendant argued that Congress
intended the ADA to ensure the disabled have physical access to the facilities of insurance
providers, not to prohibit discrimination in insurance underwriting. Id. However, the court found
that argument unpersuasive. Id. In rejecting it, the Second Circuit quoted Carparts in reasoning
that “[t]o limit the application of Title III to physical structures . . . would severely frustrate
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Congress’s intent that individuals with disabilities fully enjoy the goods . . . available
indiscriminately to other members of the general public.” Id. (quoting Carparts, 37 F.3d at 20).
Also, the legislative history of the ADA states that Congress “intended the ADA to adapt
to changes in technology.” Nat’l Ass’n of the Deaf, 869 F. Supp. 2d at 200–01. In the House Report
written at the time of the ADA’s adoption, Congress stated that “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.” H.R. Rep.
No. 101-485, pt. II (1990). Congress could not have explicitly included web-based services, like
video streaming, in the definition of places of public accommodation in the ADA because such
services did not exist when the ADA was adopted in 1990. See Nat’l Ass’n of the Deaf, 869 F.
Supp. 2d at 200. However, by stating its intention to keep up with changing technology in the
Committee Report and explicitly including “comprehensive . . . elimination of discrimination” in
the purpose section of the ADA, Congress clearly signaled that developing web-based services
should be within the ADA’s reach. 42 U.S.C. § 12101(b)(1).
Other circuits agree with a broad reading of the reach of the ADA based on legislative
history. For instance, in Carparts, the First Circuit held that places of public accommodation are
not limited to physical buildings. 37 F.3d at 19–20; see also Access Now, Inc. v. Blue Apron, LLC,
No. 17-cv-116-JL, 2017 WL 5186354, at *3 (D.N.H. Nov. 8, 2017) (following Carparts and
holding that the Blue Apron website is a place of public accommodation). The Seventh Circuit has
held that business owners cannot exclude disabled persons “whether in physical space or in
electronic space.” Doe, 179 F.3d at 559; see also Morgan v. Joint Admin. Bd., 268 F.3d 456, 459
(7th Cir. 2001). In short, the Court should adopt the view that a website is always a place of public
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accommodation because that view is already in used by the First and Seventh Circuits and
supported by the legislative history and purpose statements of the ADA.
The opposition to the view that a website is a place of public accommodation is that it will
be burdensome to small businesses. However, this argument is already addressed by the ADA.
According to National Association of the Deaf, the ADA also recognizes the need to take economic
hardship into account when determining the extent of a defendant's duties. 869 F. Supp. 2d at 205;
see also 42 U.S.C. § 12182(b)(2)(A)(iii) (creating an “undue burden” exception under the ADA).
Under the ADA, courts conduct an economic burden analysis on the defendant, taking into
consideration factors that are similar to existing FCC regulations. Nat’l Ass’n of the Deaf, 869 F.
Supp. 2d at 205. In other words, Title III already allows the courts to make individual
determinations of what is an “undue burden,” based on each website and this argument holds no
weight.
2. If this Court Adopts the Always a Place of Public Accommodation Rule,
Spicy Peach’s Website is a Place of Public Accommodation.
If this circuit adopts the rule that websites are always places of public accommodation, then
Fauci has a per se claim under the ADA. To state a claim under the ADA, the plaintiff must allege:
(1) that he or she has a disability, and (2) someone who owns or operates a place of public
accommodation discriminated against him or her. Id. at 200.
Fauci is deaf and uses subtitles on videos to compensate for his lack of hearing so that he
can follow the plot. R. at 9. Spicy Peach does not challenge Fauci’s disability nor argue that the
lack of subtitles on its adult entertainment videos is not discriminatory. Therefore, if Spicy Peach’s
website is a place of public accommodation, as clearly intended by Congress, then the Spicy Peach
is in violation of Title III of the ADA. Therefore, this Court should affirm the district court’s grant
of summary judgment and injunction against Spicy Peach.
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B. In the Alternative, This Circuit Should Adopt the Nexus Test and Find that
There is a Sufficient Nexus Between Spicy Peach’s Website and the Spicy
Peach Video Rental Store and Thus the Website Is a Place of Public
Accommodation.
A rule adopted in several circuit courts is that a plaintiff must demonstrate a “nexus”
between a website and a physical place of public accommodation for the website to fall within the
ADA. Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro. Life
Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997); Nat’l Fed’n of the Blind, 452 F. Supp. 2d at 952.
Although Fauci urges this Court to affirm the district court’s ruling that all websites are places of
public accommodation, he would still prevail under the nexus test because there is sufficient nexus
between the Spicy Peach website and its physical store. Despite Fauci’s presumptive success under
this test, this section concludes by showing how the nexus test is archaic and inapplicable to the
age of the Internet.
1. Spicy Peach’s Website is a Place of Public Accommodation Under the
Nexus Test Because It Provides Access to Store Services, is a Gateway
to Store Services, and Creates Intangible Barriers to Store Services.
There are several ways in which a plaintiff can show a nexus between a website and a
physical store. First, a nexus exists where customers can access the goods and services of a physical
store by using its website. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019), cert.
denied, 140 S. Ct. 122 (2019); Nat’l Fed'n of the Blind, 452 F. Supp. 2d at 956. Second, a nexus
exists if a website is acts as a “gateway” to a physical store. Gil v. Winn Dixie Stores, Inc., 242 F.
Supp. 3d 1315, 1321 (S.D. Fla. 2017). Third, a nexus exists when discriminatory aspects of a
website create “intangible barriers” to a physical store’s services. Haynes, 741 F. App'x at 754.
a. The Spicy Peach Website Meets the Nexus Test by Providing
Access to Goods and Services at the Spicy Peach Brick-and-
Mortar Store.
A nexus between a website and a physical store exists when customers can access the goods
and services of the physical store by using the website. Nat’l Fed'n of the Blind, 452 F. Supp. 2d
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at 956. In Robles, the Ninth Circuit found sufficient nexus to rule that the Domino’s website (and
mobile application) was a place of public accommodation because the website and the application
are “two of the primary . . . means of ordering Domino's products.” 913 F.3d at 905. Because
customers could access Domino’s in-store pizza by using Domino’s online website, the nexus
requirement was met. Id. Similarly, in National Federation of the Blind, Target’s website allowed
customers to make online purchases of in-store goods and find out information about the goods
and services offered in the store. 452 F. Supp. 2d at 956. The court found that the nexus test was
met there also. Id.
Furthermore, in Haynes, the plaintiff alleged that Dunkin’ Donuts’ website discriminated
against blind individuals because it does not have a screen reader software. 741 F. App'x at 754.
The website allowed customers to locate physical Dunkin’ Donuts stores and purchase gift cards
to be used in the store. Id. Moreover, the Dunkin’ Donuts’ website “provide[d] access to” and
“information about the goods and services, of” Dunkin’ Donuts’ shops. Id. The Eleventh Circuit
reasoned that since the Dunkin’ Donuts’ website “is a service that facilitates the use of Dunkin’
Donuts’ shops, which are places of public accommodation . . . it cannot discriminate against people
on the basis of a disability” and the nexus test was met. Id.
Here, the nexus test is also met because the Spicy Peach website has the location and
contact information of the brick and mortar store, provides buyers the option to buy gift cards
online which can be used online or in the store, and both the website and the store provide access
to some of the same rental videos. R. at 4, 7, 10, 21. In Robles, the court found that a nexus existed
when the website and physical store were two ways to purchase the same pizza. 913 F.3d at 905.
In the same way here, Spicy Peach’s website and store are two ways to rent the same video content.
R. at 4. Although not all of Spicy Peach’s online content is available in store, much of it is. Id.
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Additionally, in Haynes and National Federation of the Blind, there was a sufficient nexus where
websites allowed customers to purchase gift cards. Haynes, 741 F. App'x at 754; Nat’l Fed'n of
the Blind, 452 F. Supp. 2d at 956. In the exact same way, Spicy Peach offers its address information
and a gift card purchase option on its website. R. at 4. Spicy Peach’s gift cards can be used both in
store and online, which further demonstrates the interconnected nature of the website and store.
Id. Additionally, both the website and the brick and mortar store have the same 48-hour rule for
returning DVDs and streaming videos. R. at 10. Therefore, Spicy Peach’s website offers the same
or similar rental opportunities as the store, and both the website and the store are operated under
the same policies. Thus, there is a sufficient nexus between the website and the store for the Court
to find that Spicy Peach’s website is a place of public accommodation.
b. The Spicy Peach Website Meets the Nexus Test by Acting as a
Gateway to Its Physical Store.
The nexus test is satisfied when a website provides a gateway to services at the physical
store. Gil, 242 F. Supp. 3d at 1321. In Gil, Winn-Dixie’s website allowed customers to view store
locations, fill prescriptions, and learn about Winn-Dixie’s store-brand goods. Id. at 1316. The court
found that the defendant’s website was “heavily integrated with the brick-and-mortar stores and
operates in many ways as a gateway to the stores.” Id. at 1321 (emphasis added). Accordingly,
because the website denied the plaintiff equal access to Winn-Dixie’s services, it violated the
ADA. Id.; see also Robles, 913 F.3d at 905 (finding a nexus when a website acted as a gateway to
allow customers to purchase Domino’s pizza); Nat’l Fed’n of the Blind, 452 F. Supp. 2d at 953,
955 (finding that the Target website was a gateway to Target goods and services).
Like in Gil, Robles, and National Federation of the Blind, Spicy Peach’s website serves as
a gateway to its store. The website is integral to the store and is a primary means for customers to
enjoy Spicy Peach products, just as Domino’s website was a means to enjoy pizza in Robles, 913
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F.3d at 905. In Gil, Winn-Dixie’s website was sufficiently connected to the store because it
increased access to store-brand goods. 242 F. Supp. 3d at 1321. Spicy Peach’s website does the
same. In the physical store, Spicy Peach must rely on physical DVDs to rent the adult movies, and
the store is limited to the number of DVDs available. R. at 10. However, since the website is a
streaming service, it allows Spicy Peach to increase access to rentals by renting the same movie to
as many customers who wish to rent it. Id. Finally, like the Winn-Dixie website in Gil, 242 F.
Supp. 3d at 1316, Spicy Peach’s website has the location and information of the physical store, R.
at 10. If a customer wants to go to the store, the website helps them locate it. Id. Thus, the website
is a gateway and a primary means for customers to access Spicy Peach’s products away from the
store, and the nexus test is satisfied.
c. The Spicy Peach Website Meets the Nexus Test Because the Lack
of Subtitles in Its Online Videos Is an Intangible Barrier to Store
Services.
A nexus when inaccessibility of a website creates “intangible barriers” to the goods and
services of a physical store. Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1283 (11th Cir.
2002). In Rendon, the plaintiff sued the game show “Who Wants to be a Millionaire?” over its
telephone service for selecting potential game show contestants. Id. at 1281. Deaf persons who
wanted to be on the show could not hear the questions asked over the phone, creating an “intangible
barrier” to their ability to become contestants. Id. at 1281, 1283. The court explained that the
ADA’s definition of discrimination covers both “tangible barriers . . . and intangible barriers.” Id.
It held that the intangible barrier between the phone system and the show’s studios was sufficient
nexus to find a violation of the ADA. Id. at 1283.
Similarly, the lack of subtitles on Spicy Peach’s website is an intangible barrier to Spicy
Peach’s services. In Rendon, the nexus existed between the phone service acted as an “intangible
barrier” to the game show studio. 294 F3d at 1283. It is equally unreasonable to expect a deaf
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person to watch a movie with no subtitles as it is to expect a deaf person to hear game show
questions on the phone. Fauci could not enjoy any of the four movies he bought for the sole reason
that he is deaf. R. at 10. Therefore, like Rendon where the phone screening was an intangible
barrier, the lack of subtitles is an intangible barrier in this case. R. at 11. Thus, the nexus test is
met, and the Spicy Peach website is a place of public accommodation.
3. The Nexus Test Is Archaic Because It Fails to Regulate the Changes in
Web-Based Businesses and Violates Public Policy.
Although Fauci demonstrably prevails under the nexus test, the test nonetheless fails the
differently abled in online commerce. See, e.g., Earll v. eBay, Inc., 599 F. App'x 695, 696 (9th Cir.
2015). In Earll, the court dismissed a claim under the ADA because it did not find a sufficient
nexus. Id. In its reasoning, the court stated that it had “previously interpreted the term ‘place of
public accommodation’ to require ‘some connection between the good or service complained of
and an actual physical place.’” Id. (quoting Weyer, 198 F.3d at 1114). And since eBay's “services
are not connected to any ‘actual, physical place[],’ eBay is not subject to the ADA.” Id.
Given that eBay is a fully web-based purchasing platform, the Earll holding is arbitrary
and violates public policy. Despite congressional intent that the ADA is to evolve with ever-
changing technology and to prevent discrimination, see 42 U.S.C. § 12101(b)(1), the Ninth Circuit
still interpreted the statute in a manner that completely prevents the ADA from being applicable
to eBay or online companies like it, Earll, 599 F. App’x at 696. Companies such as Amazon,
Netflix, Hulu, etc. will never be subject to the ADA because they operate entirely online and
provide no physical spaces to the public. Online-only companies like this are likely to expand and
increase in number in the coming years. As they do, the space in the American economy where
protections for disabled persons exist under the ADA will shrink if this Court applies the nexus
test. This directly violates Congress’ intent that the ADA provide “comprehensive” protection for
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disabled persons and undermines fairness in the economy for those who are disabled. 42 U.S.C. §
12101(b)(1). Therefore, Fauci urges this Court to hold that all websites are places of public
accommodation, adopting the nexus test only as a last resort.
C. The Rule that Only a Physical Store Can Be a Place of Public Accommodation
Is a Misinterpretation of the ADA and Its Legislative History, and This Court
Should Not Adopt It.
The Fifth Circuit held that only an actual store can constitute a place of public
accommodation. Magee, 833 F.3d at 535. In Magee, the court reviewed various definitions of
“establishment” in different dictionaries before concluding that a vending machine operation is
not a “sale establishment” and cannot be a place of public accommodation under the ADA. Id. The
court then limited places of public accommodations to “actual stores” with physical locations. Id.
at 536. However, this interpretation is contrary to the intentions of Congress and the plain language
of the ADA, and this court should not adopt the “actual store” rule.
1. The Fifth Circuit’s “Actual Store” Test Resulted from a
Misinterpretation of the Noscitur a Sociis Canon and Violates the Plain
Language of the ADA.
In limiting the ADA to “actual stores,” the Fifth Circuit relied on a misinterpretation of the
noscitur a sociis canon. Id. at 534–36. The Fifth Circuit looked to the ADA’s statutory definition
of “place of public accommodation” and the twelve examples of establishments that are
specifically listed as places of public accommodation in the statute. Id. Finding that the “sales
establishment” was likely the closest thing from the list to the vending machines at issue in Magee,
the court looked to definitions of that term. Id. After reviewing the definitions of the term
“establishment,” the court went on to establish the rule that places of public accommodations are
limited to “actual stores” with physical locations, like an establishment. Id. However, the Fifth
Circuit is alone in this interpretation, and this Court should be wary of this flawed use of the
noscitur a sociis analysis.
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In Scribd, the district court took on a stronger statutory analysis. See Nat'l Fed'n of the
Blind v. Scribd Inc., 97 F. Supp. 3d 565, 572 (D. Vt. 2015). In that case, the defendant made the
same noscitur a sociis argument as the Magee defendant, but the court disagreed with the Magee
court’s interpretation of the ADA. Id. The Scribd court noted that that there are “two instances [in
which] the statute does not use the word place, which suggests that the accommodation must be
available to the public but not necessarily at a physical place open to the public.” Id. Specifically,
the ADA explicitly includes “other establishments serving food or drink” and “other sales or rental
establishments,” which may or may not have a “physical place.” Id. Therefore, the court held that
in the phrase “place of public accommodation,” the emphasis is on the public accommodation, not
on place. Id. Thus, because the ADA’s list of public accommodations includes establishments
without or without a “physical place,” the court held that noscitur a sociis suggests that other
“public accommodations” with or without physical places could be within the ADA. Id.
Furthermore, the Fifth Circuit limitation of the ADA to physical locations limits the reach
of the ADA in violation of the statutory text. Notably, Title III of the ADA prohibits discrimination
“on the basis of disability in the full and equal enjoyment of” a place of public accommodation,
not “in” or “at” a place of public accommodation. 42 U.S.C. § 12182(a) (emphasis added). This
distinction is crucial. Nat’l Fed’n of the Blind, 452 F. Supp. at 953. If an “actual store” or “physical
location” is required, as the Fifth Circuit has held, then the words “of” in the statutory text must
be ignored. For instance, the ability to purchase a pizza is clearly a service of a place of public
accommodation like Domino’s, whether it is done online or in person. Robles, 913 F.3d at 905. To
require that the purchase of Domino’s pizza be completed in person for the ADA to apply, a court
would have to rewrite the statute to refer only to services “at” a place of public accommodation.
Not only does this violate the plain language of the statute, it also violates congressional intent for
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the ADA to comprehensively eliminate discrimination based on disability. 42 U.S.C. §
12101(b)(1). Therefore, because the Fifth Circuit rule effectively rewrites the language and
violates the purpose of the ADA, this Court should not adopt it.
2. The Department of Justice First Articulated that the ADA Applies to
Public Accommodations’ Websites Over 20 Years Ago Because It
Understands Congress Did Not Intend for the ADA to Expire.
In 2018, the Assistant Attorney General of the Department of Justice (DOJ) stated in a
letter: “[t]he Department first articulated its interpretation that the ADA applies to public
accommodations’ websites over 20 years ago.” Letter from Stephen E. Boyd, Assistant Att’y Gen.,
U.S. Dep't of Just., to Ted Budd, Rep., U.S. House of Representatives (Sept. 25, 2018). As the
agency responsible for implementing the ADA, the DOJ’s finding is significant, and this Court
should give deference to the DOJ’s interpretation. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843–44 (1984) (holding that when the term of a statute is ambiguous
and Congress did not speak to it, the court should give deference to the agency’s interpretation if
it is based on a permissible construction). Additionally, the DOJ’s interpretation is in line with the
purpose of the ADA, because, as the Court explained in Carparts: “[t]o exclude this broad category
of businesses from the reach of Title III and limit the application of Title III to physical structures
which persons must enter to obtain goods and services would run afoul of the purposes of the
ADA.” 37 F.3d at 20.
Although this case concerns adult videos, the ruling in this case will impact many online
services and the lives of many Americans under the jurisdiction of this Court. According to the
CDC, as of 2019, 61 million adults in the United States live with a disability—one in four
Americans. Disability Impacts All of Us, Centers for Disease Control and Prevention (Sept. 9,
2019), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.
Disabled individuals living under the jurisdiction of the Thirteenth Circuit would be negatively
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impacted and denied relief for discrimination in pursuit of all kinds of services—more than just
adult video rentals—if the Court finds that websites cannot be places of public accommodation.
Lastly, the Supreme Court has acknowledged the importance the Internet, describing it as
“a unique medium . . . located in no particular geographical location but available to anyone,
anywhere in the world, with access to the Internet.” Reno v. ACLU, 521 U.S. 844, 851 (1997).
Some circuit courts have failed to realize that 61 million Americans have had to fight an uphill
battle to have access to this unique medium, and in jurisdictions like the Fifth Circuit, disabled
Americans have lost that battle. When Congress signed the ADA in 1990, it did not intend for the
ADA to come with an expiration date. That is, Congress did not intend for the ADA to last only
as long as people rely on physical stores. The goal was to help people with disabilities gain access
to public services. As more companies move completely online, a rule excluding websites from
places of public accommodation would effectively stamp an expiration date on the ADA, denying
relief to Fauci and millions more Americans who are differently abled.
CONCLUSION
For the foregoing reasons, Plaintiff-Appellee Fauci respectfully requests that this Court
AFFIRM the district court grant of summary judgment that awarded him declaratory relief and an
injunction against Spicy Peach, Inc.
Date: September 21, 2020
Team A
/s/ Team A
Attorneys for Plaintiff-Appellee