Team SS CRAL 2020 Brief Submission - law.emory.eduTeam SS 6 1. Article III requires the District Court to render all final decisions on dispositive motions. ... Sinnott, No. 2:07–CV–169,

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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.