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No. 20-00238

_____________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRTEENTH CIRCUIT

_____________________________________________________________

ANTHONY FAUCI

Plaintiff-Appellee

v.

SPICY PEACH, INC.

Defendant-Appellant

_____________________________________________________________

ON WRIT OF CERTIORARI

TO THE DISTRICT COURT OF EMORY

_____________________________________________________________

BRIEF FOR APPELLEE ANTHONY FAUCI

_____________________________________________________________

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Counsel for Appellee

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ___________________________________________________ iii

QUESTIONS PRESENTED FOR REVIEW ______________________________________ 1

I. Factual Background ____________________________________________________ 1

II. Procedural Background _________________________________________________ 2

SUMMARY OF ARGUMENT _________________________________________________ 4

ARGUMENT ________________________________________________________________ 7

I. The district court correctly considered Fauci’s argument, which was a direct response to the magistrate’s recommendation. __________________________________ 7

A. The district court was required to make a de novo determination of all of Fauci’s objections. _______________________________________________________________ 7

1. The magistrate does not have the authority to determine the issues, so Fauci must be able to raise new arguments in the objection. __________________________________ 9

2. The district court cannot limit its own jurisdiction to make a de novo determination under the statute. _______________________________________________________ 11

B. Under sister circuits discretionary approaches, the district court had the discretion to hear the arguments. _______________________________________________________ 13

1. The district court acted within the scope of its judicial power in deciding to hear Fauci’s argument. _______________________________________________________ 13

2. The district court correctly determined Fauci was entitled to raise his argument under the Wells Fargo Test. ____________________________________________________ 16

II. Title III applies to the Website, regardless of whether a nexus is required. ______ 17

A. Title III applies to the Website because no nexus is required. ___________________ 18

1. The Website is a “place of public accommodation,” and the rules of statutory construction confirm this. ________________________________________________ 18

2. Even if the Website is not a “place of public accommodation,” it is a service of “place of public accommodation” and no nexus is required. ___________________________ 23

3. The ADA’s purpose and legislative history and the principle of avoiding absurd results confirm Title III prohibits the Website’s discrimination, regardless of whether a nexus exists. ___________________________________________________________ 24

4. The DOJ interprets Title III to apply to web-based services. __________________ 26

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B. Even if a nexus is required, the website has a sufficient nexus to Spicy Peach’s brick-and-mortar store. _________________________________________________________ 27

C. Public Policy supports applying Title III to the Website. ______________________ 29

CONCLUSION _____________________________________________________________ 30

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TABLE OF AUTHORITIES

Supreme Court Cases Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008). ...................................................................................................19, 20

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982). .........................................................................................................25

I.N.S. v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183 (1991). ..........................................................................................................21

K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988). ..........................................................................................................21

Mass. v. E.P.A., 549 U.S. 497 (2007). .........................................................................................................24

Muscarello v. U.S., 524 U.S. 125 (1998). .........................................................................................................21

Packingham v. North Carolina, 137 S. Ct. 1730 (2017). ...............................................................................................21, 29

Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 (1998). ...................................................................................................23, 26

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). .............................................................................................18, 24, 26

Reno v. ACLU, 521 U.S. 844 (1997). ..................................................................................................25, 26

Skidmore v. Swift & Co., 323 U.S. 134 (1944). .........................................................................................................27

Stenberg v. Carhart, 530 U.S. 914 (2000). ........................................................................................................18

Thomas v. Arn, 474 U.S. 140 (1985). ...................................................................................................11, 12

U.S. v. Alpers,

338 U.S. 680 (1950). .........................................................................................................20

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U.S. v. Raddatz, 447 U.S. 667 (1980). .......................................................................................... 7-9, 12, 13

Util. Air Regulatory Grp. v. E.P.A.,

537 U.S. 302 (2014). ...................................................................................................21, 22 Williams v. Taylor,

529 U.S. 362, 364 (2000). ............................................................................................22, 23 United States Courts of Appeals Cases Campbell v. U.S. Dist. Ct. N.D. Cal.,

501 F.2d 196 (9th Cir. 1974) ........................................................................................7, 10

Carparts Distrib. Ctr. v. Auto Wholesaler’s Ass’n, 37 F.3d 12 (1st Cir. 1994). .....................................................................................19, 25, 26

Cupit v. Whitley, F.3d 532 (5th Cir. 1994). ............................................................................................14, 15

Doe v. Mut. of Omaha Ins. Co.,

179 F.3d 557 (7th Cir. 1999). .....................................................................................17, 18

Freeman v. County of Bexar, 142 F.3d 848 (5th Cir.1998). ............................................................................................15

Magee v. Coca-Cola Refreshments USA, Inc.,

833 F.3d 530 (5th Cir. 2016). .....................................................................................19, 20 Morgan v. Joint Admin. Bd.,

268 F.3d 456, 459 (7th Cir. 2001). ..................................................................................19

Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1998). ...................................................................................19, 23

Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997). .............................................................................20, 26, 29

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co, 840 F.2d 985 (1st. Cir 1988). ..............................................................................................8

Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). .......................................................................................................28 Stephens v. Tolbert,

471 F.3d 1173 (11th Cir. 2006). .........................................................................................9

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U.S. v. George,

971 F.2d 1113 (4th Cir. 1992) ................................................................................9, 11, 12

U.S. v. Howell, 231 F.3d 615 (9th Cir. 2000) ............................................................................................15

U.S. v. Shami, 754 F.2d 670 (6th Cir. 1985) ......................................................................................10, 13

Williams v. McNeil,

552 F.3d 1287 (11th Cir. 2009) .................................................................................. 13-15

Worley v. City of Lilburn, 408 Fed. Appx. 248 (11th Cir. 2011). ...............................................................................14

District Court Cases Amadasu v. Nagati,

2012 WL3930386 (E.D. N.Y. 2012) ...........................................................................15, 16 Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017). .......................................................................20, 22, 24, 26 Contreras v. Walmart Stores East,

2020 WL 1429473 (E.D.N.Y. 2020) .................................................................................17 Del-Orden v. Bonobos, Inc.,

2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017). ...........................................................28, 29 Nat’l Ass’n of the Deaf v. Harvard Univ.,

377 F. Supp. 3d 49 (D. Mass. 2019). .......................................................................... 27-29 Nat’l Ass’n of the Deaf v. Netflix, Inc.,

869 F. Supp. 2d 196 (D. Mass. 2012) ...............................................................................25 Nat’l Fedn. of the Blind v. Scribd,

97 F. Supp. 3d 565 (D. Vt. 2015) .....................................................................................25 Wells Fargo Bank N.A. v. Sinnott,

2010 WL 297830 (D. Vt. Jan. 19, 2010). .........................................................................16 Constitutional Provisions U.S. Const. art. III, §1. ....................................................................................................................7

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U.S. Const. art. III. §2. ....................................................................................................................7 Statutes 28 U.S.C § 636 (2020). ............................................................................................................10, 12 28 U.S.C. § 636(b)(1)(A) (2020). ...................................................................................................9 28 U.S.C. § 636(b)(1)(B) (2020). .............................................................................................9, 10 28 U.S.C. § 636(b)(1)(C) (2020). ...................................................................................7, 9, 12, 13 42 U.S.C. § 12101(a)(1) (2020). ..............................................................................................28, 29 42 U.S.C. § 12101(a)(5) (2020). ....................................................................................................24 42 U.S.C. § 12101(a)(7) (2020). ....................................................................................................26 42 U.S.C. § 12181(7) (2020). ........................................................................................... 18-20, 22 42 U.S.C. § 12182 (2020). ............................................................................................................22 42 U.S.C. § 12182(a) (2020). ......................................................................................17, 20, 22, 23 42 U.S.C. § 12182(b)(2)(A)(iii) (2020) .........................................................................................24 42 U.S.C. § 12183(b) (2020) ........................................................................................................22 28 C.F.R. § 36.303(b) (2020). .......................................................................................................27 28 C.F.R. § 36.303(c)(1) (2020) ...................................................................................................27 Legislative Materials H.R. Rep. 94-1609 (1976). ........................................................................................................ 7-11 H.R. Rep. No. 101-485 (1990). ...............................................................................................24, 25 Miscellaneous Authorities Letter from Deval L. Patrick, Assistant Att’y Gen., DOJ (Sept. 9 1996) ......................................27 Letter from Stephen Boyd, Assistant Att’y Gen., DOJ (Sept. 25 2018) ..................................26, 27

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QUESTIONS PRESENTED FOR REVIEW

I. Under the Federal Magistrate Act, if a party objects to the Magistrate’s Review and

Recommendation, the district court must make a de novo determination. In response to the

Magistrate’s R&R, Fauci raised a new argument not raised before the district court. Did the district

court correctly consider Fauci’s new argument?

II. Under Title III of the ADA, a private entity is a “public accommodation” if it affects commerce

and falls under one of twelve categories, which include a “rental establishment,” “service

establishment,” “place of entertainment,” and “place of recreation.” The Website offers a service

allowing customers to rent movies for entertainment or recreation. Is the Website a “public

accommodation” in whole or in part?

I. Factual Background

Spicy Peach, Inc. is a private entity. Its Website and brick-and-mortar store affect

commerce by offering videos to the public for rental. R. 3. Spicy Peach opened its brick-and-

mortar store in 2000. R. 9. The brick-and-mortar store’s sales began to decline with the advent of

streaming technology. R. 9-10. In 2015 an effort to increase sales, Spicy Peach opened

www.spicypeachrentals.com. Id. The Website gave customers the option to rent and stream videos

completely online. R. 10. Spicy Peach intended the Website to operate in tandem with its brick-

and-mortar store; the website features many of the same videos. R. 3&10. Online rentals are only

available to download or stream through the customer’s web browser or a “Smart” TV. R. 10.

Many online rentals are not available at the brick-and-mortar store. Id. Although videos from the

brick-and-mortar store provide closed-captioning, no videos available online provide closed

captioning. R. 4. The Website offers gift cards for sale that may be used on the Website or at the

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brick-and-mortar store, but does not allow patrons to order a rental online and pick it up in store.

Id. The Website also has location and contact information for the brick-and-mortar store. Id.

Anthony Fauci is an individual born with a hearing impairment that renders him completely

deaf. R. 3. On March 15, 2019, Fauci rented a video from Spicy Peach’s Website. R. 3-4. Fauci

discovered that the video did not provide closed captioning. R. 4. Because of Fauci’s hearing

impairment, the video was inaccessible to him without closed captioning. Id. Fauci rented to the

movie for it’s premise and believes the dialogue plays a critical role in developing the plot of these

movies. R. 10. He cannot enjoy the movies without closed captioning because they render the

video inaccessible to him due to his hearing impairment. Id.

II. Procedural Background On April 1, 2019, Fauci, then a pro se litigant, filed a claim against Spicy Peach, Inc. alleging

discrimination on the basis of disability, in violation of Title III of the Americans with Disabilities

Act. R. 3. On July 1, 2019, both Spicy Peach and Fauci moved for summary judgment. R. 3&11.

On July 7, 2019 the district court referred the motion to the assigned magistrate judge, the

Honorable Andrew Cuomo. R. 11. Judge Cuomo instructed the parties to file their oppositions to

the motions for summary judgment by August 1, 2019. Id. Because he was a pro se litigant, Fauci

was unable to complete discovery required to file his opposition. Id. As a result, Fauci moved for

additional time to conduct discovery pursuant to Rule 56(d) Federal Rule of Civil Procedure. Id.

Judge Cuomo denied Fauci request for additional time, but extended the deadline for the opposition

to the summary judgment to September 1, 2019. Id.

In early August, Fauci retained counsel on a pro bono basis. Id. Fauci’s new attorneys

began to review discovery and drafted the motion for summary judgment. Id. In the motion, Fauci

alleged that Spicy Peach’s website was subject to Title III of the ADA because it qualified as a

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public accommodation under four categories. R. 5. Fauci also argued that there was a sufficient

nexus between Spicy Peach’s brick and mortar store and the website. Id. Spicy Peach argued that

there was no sufficient nexus between the Website and the brick and mortar store to subject it to

Title III, and that the Websites could not be subject to regulations placed by the ADA. Id. Because

of the condensed timeline between retaining counsel and the deadline to file the motion, Fauci

failed to raise the argument that the website was a place of accommodation under the ADA. R.11.

On August 29, 2019 Fauci moved to stay the adjudication of the motion for summary judgment

and sought reconsideration of the Order denying the extension of discovery. R. 11-12. Judge

Cuomo granted both motions and extended Fauci’s discovery until January 13, 2020. R.12.

On January 27, 2020 Judge Cuomo issued an R&R. R. 12. In the R&R, Judge Cuomo

recommended the district court find that there was “no genuine issue as to any material fact” and

that Spicy Peach was entitled to judgment as a matter of law. R. 4. Judge Cuomo also

recommended that the district court utilize the nexus test. R. 4-5. In applying the nexus test, Judge

Cuomo found no sufficient nexus connecting the website to the brick and mortar store. R. 5.

Primarily because the inaccessibility of the website did not impede the enjoyment of the physical

store. Id. Judge Cuomo rejected Spicy Peach’s argument that a website is never subject to the

regulations of the ADA. R. 6. Pursuant to FRE 72(b), objections to the R&R were due February

10, 2020. R.12

On February 1, 2020, Fauci attempted to submit an electronic filing letter with the district

court, but there was an error and the letter did not enter the system until February 11, 2020. Id. On

February 14, 2020, the district court, unaware of Fauci’s request for an extension, adopted the

R&R. Id. On February 20, 2020 Fauci filed an opposition to the district court’s order adopting the

magistrate’s order. Id. In his objection to the R&R, Fauci argued that websites are always required

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to comply with the ADA, an argument he did not explicitly raise before the magistrate. Id. In

support of his argument Fauci submitted additional evidence. Id. The district court retroactively

granted Fauci’s request for an extension and made a de novo determination of Fauci’s objection to

the magistrate court’s R&R. Id.

In his order, Judge Seek, relying on the Fourth Circuit’s precedent, found that he was

required to hear all arguments brought before him when making a de novo determination. R. 13.

Judge Seek also determined that he had the right to hear the new arguments under the discretionary

standard, alluding to both the Second Circuit’s Wells Fargo test and other circuits grant of

discretion. R.15. Judge Seek then considered Fauci’s arguments de novo and concluded that the

Spicy Peach’s website was a place of public accommodation, and granted Fauci’s motion for

summary judgment. Id. Spicy Peach appealed on two grounds. R. 1. First, Judge Seek abused his

discretion when he heard Fauci’s new arguments, and second spicypeachrentals.com is not a place

of public accommodation under the ADA. R. 1.

SUMMARY OF ARGUMENT

The district court correctly granted summary judgment. The district court correctly conducted a

de novo determination of Fauci’s arguments. First, after the court accepted Fauci’s objection, he

had the right to a de novo determination of his arguments. Second, the district court judge did not

abuse his discretion. The Federal Magistrate’s Act creates a statutory right to a de novo

determination by an Article III court. For the magistrate’s hearing to comply with Article III, the

district court must retain the ultimate decision-making power. Once a litigant objects to the

magistrate’s R&R, they are entitled to a fresh consideration of the issues. To comply with Article

III, the district court must hear all arguments brought before it. Because the magistrate judge does

not have the authority to make a final determination of the issues, a litigant must be able to make

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an objection to the report, even if the argument was not raised before the magistrate. In addition to

this, neither the district court not the court of appeals can limit the statutory authority of the district

court. Once a party objects, his right to a de novo determination cannot be limited.

If district courts are not required to hear new arguments, hearing Fauci’s argument was not

an abuse of discretion. Fauci’s argument was correctly considered. Under a factorial test like Wells

Fargo, Fauci had compelling reasons for not presenting the argument to the magistrate court in the

first instance. However, district circuits should be afforded wide discretion as they are in the best

position to weigh a litigant’s interest to have their arguments heard before an Article III court and

the judicial efficiency policy underlying the Federal Magistrate Act.

Title III applies to the Website’s discrimination, regardless of whether a nexus is required.

First, Title III applies to the Website because no nexus is required. The Website is a “public

accommodation” under the plain text and structure of the ADA. The Website offers a service

allowing customers to rent movies for entertainment and recreation. Therefore, the Website is a

“public accommodation” because of its function. Cases from the First and Seventh Circuits support

interpreting the Website to be a “public accommodation.” Courts that have held “public

accommodations” have to be physical structures open to the public have misapplied canons of

construction. Further, the plain meaning and everyday usage of the word “place” and examining

the ADA as a whole support the First and Seventh Circuits’ interpretations.

Even if the Website is not a “public accommodation,” it is a good, service, privilege,

advantage, or accommodation of the brick-and-mortar-store, which is indisputably a “public

accommodation.” The plain statutory text does not require a nexus between a service of “public

accommodation” and its physical location. Therefore, Title III applies to the Website, regardless

of whether a nexus exists.

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The ADA’s purpose and legislative history supports the First and Seventh Circuits’

interpretation. The ADA was meant to remedy widespread discrimination against disabled persons,

after Congress found that discrimination to be serious and pervasive problem. Congress intended

the types of accommodations covered under Title III to be able to keep pace with the rapidly

changing technology of the times. Further, the principle of avoiding absurd results supports

applying the ADA to the Website, regardless of whether a nexus exists. The Website provides the

same function as Spicy Peach’s brick-and-mortar store. Applying Title III to the brick-and-mortar

store but not the Website allows people without disabilities to obtain the full and equal enjoyment

of Spicy Peach’s online streaming service, while those with a hearing disability, like Fauci, cannot.

This is an absurd result that Congress did not intend. The Department of Justice has also interpreted

the ADA to apply to web-based services for over two decades. Regulations support requiring the

Website to provide auxiliary aids and services, such as closed captioning. This interpretation is

entitled to deference.

Even if a nexus is required, the Website has a sufficient nexus to the brick-and-mortar store.

The Website offers many of the same movies as the brick-and-mortar store. The Website performs

the same function as the brick-and-mortar store. The Website operates in tandem with the brick-

and-mortar store. Case law supports that a sufficient nexus exists when a website offers the same

content as the physical location and when the website operates in tandem with the physical

location. Therefore, Title III applies to the Website’s discrimination, even if a nexus is required.

Additionally, public policy supports applying Title III to the Website. Technology has been

rapidly changing. The Internet and commerce conducted on it are more essential to people’s lives.

Therefore, this Court should hold Title III applies to the Website’s discrimination against Fauci on

the basis of his disability.

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ARGUMENT

I. The district court correctly considered Fauci’s argument, which was a direct response to the magistrate’s recommendation.

Article III of the Constitution vests the judicial power in the Supreme Court and inferior courts.

U.S. Const. art. III, § 1. (requiring judges that carry the judicial power have a life tenure and

irreducible salary) The judicial power extends to cases that arise under the constitution or federal

law. U.S. Const. art. III § 2. In 1968, Congress passed the Federal Magistrate Act to relieve

overburdened Article III courts. The purpose of the Act was to allow district courts to focus on the

trial itself rather than a substantial amount of pre-trial motions. H.R. Rep. 94-1609, at 6 (1976).

However, any provision of the Act must be interpreted in accordance with Article III. Campbell v.

U.S. Dist. Ct. N.D. Cal., 501 F.2d 196 (9th Cir. 1974), cert. denied 419 U.S. 879 (1974). When a

district court refers a dispositive motion to the magistrate judge, the district court must maintain

the ultimate decision-making power. U.S. v. Raddatz, 447 U.S. 667, 683 (1980). Once the motion

is referred to the magistrate, the magistrate schedules a hearing and submits a Review and

Recommendation (“R&R”) to the district court judge, recommending his findings of facts and

conclusions of law. 28 U.S.C. § 636(b)(1)(C) (2020).

A. The district court was required to make a de novo determination of all of Fauci’s objections.

Once a litigant objects to the magistrate judge’s R&R, the party has the right to a de novo

determination made by the district court. 28 U.S.C. § 636(b)(1)(C) (2020). The standard for de

novo determination is a hybrid between de novo hearings performed by district courts typically

and de novo review performed by appellate courts. Cf. Raddatz, 447 U.S. at 676 (holding that

Congress’s use of de novo determination absolved district courts of the duty to conduct a de novo

hearing) ;H.R. Rep. 94-1609 at 3 (1976) (explaining that Congress does not intend the district court

to be so limited to the magistrate’s record). When the district court judge is making a

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determination, the recording of the magistrate’s hearing becomes the non-exclusive record from

which the district court judge begins to make the determination.1 After the magistrate files his

R&R the proceedings continue under the district court judge’s “total control and jurisdiction.”

Raddatz, 447 U.S. at 681. The standard for de novo determination balances the efficiency concerns

behind the Federal Magistrate Act and a party’s Article III right to an ultimate determination made

by the district court. Raddatz, 447 U.S. at 683-84.

Some circuits have found that the district court is limited to making determinations of

arguments that were raised before the magistrate. Paterson-Leitch Co. v. Mass. Mun. Wholesale

Elec. Co., 840 F.2d 985, 990 (1st. Cir 1988) (“At most, the aggrieved party is entitled to a review

of the bidding rather than a fresh deal.”). This is at odds with Congress’s stated intention. In 1976,

Congress amended section 636 due to disagreements about the magistrate judges’ authority. The

amendment made two relevant clarifications to the statute. First, all motions to dismiss, and

therefore dispositive motions referred to magistrates must follow the procedures outlined in

subparagraphs (B) and (C). H.R. Rep. 94-1609 at 2 (1976). Second, the legislature clarified that

after a party objects to the R&R the district court judge must make a de novo determination. Id.

Congress intended that after a litigant made an objection the district court would make a “fresh

consideration” of the issues. H.R. Rep. 94-1609 at 3 (1976) (“the district judge in making the

ultimate determination of the matter would have to give fresh consideration to those issues to

which specific objection is made by a party.”) (emphasis added). In his R&R Judge Cuomo

recommended “that the district court utilize the nexus test.” R. 5. In his objection to that

1 H.R. Rep. 94-1609 at 3 (1976) (“The use of the words ‘de novo determination’ is not intended to require the judge to actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate. 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.”).

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recommendation, Fauci argued that the Website was a public accommodation under Title III of the

ADA, and no nexus was required. The district court had the authority to hear the argument. Accord

Stephens v. Tolbert, 471 F.3d 1173 (11th Cir. 2006) (holding district courts may hear arguments

not raised before the magistrate). Further, the district court was constitutionally compelled to hear

the argument. See U.S. v. George, 971 F.2d 1113 (4th Cir. 1992) (“We believe that as 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”). If district courts may decline to make a de novo determination of objection

to the R&R, the magistrate’s authority extends beyond its statutorily granted power and violates

Article III. After the litigant makes an objection to the recommendation, neither the magistrate

court nor the district court have the authority to limit the scope of de novo determination.

1. The magistrate does not have the authority to determine the issues, so Fauci must be able to raise new arguments in the objection.

In a dispositive hearing, magistrates only have the authority to hold a hearing and recommend

finding of facts and dispositions of law in an R&R. 28 U.S.C. § 636(b)(1)(B). If a party objects to

the R&R, the district court must make a de novo determination. 28 U.S.C. § 636(b)(1)(C). In

contrast, the magistrate judge has the authority to “hear and determine” the non-dispositive pretrial

motions. 28 U.S.C. § 636(b)(1)(A). In determining non-dispositive motions, the magistrate issues

an order. Id. If a party objects, the district court reviews the order for clear error review. Id.

Unlike a magistrate court’s order, a R&R is not binding on the district court, does not carry the

force of law, and is not considered a final decision until adopted by the district court. Accord

Raddatz, 447 U.S. 667. However, by interpreting a party’s failure to raise an argument before the

magistrate as a waiver, courts are granting magistrate’s the power to “hear and determine”

dispositive issues. In his objection to the R&R, Fauci objected to the magistrate’s recommendation

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of the nexus test. If Fauci was unable to raise his public accommodation argument, the court would

effectively limit his statutory right to object to the R&R. Furthermore, the magistrate’s

recommendation could go unchecked and would be the “ultimate determination” of the issues,

despite Fauci’s objection. See U.S. v. Shami, 754 F.2d 670, 672 (6th Cir. 1985) (requiring district

court to make a de novo determination of all the defendant’s objections).

The Ninth Circuit’s decision in Campbell, ultimately led to the legislature amending the

statute to clarify that objections lead to de novo determinations. H.R. Rep. 94-1609 at 3 (1976). In

Campbell, the petitioner filed a writ of mandamus challenging the district court’s order referring a

motion to suppress evidence in a criminal case to a magistrate judge. Campbell, 501 F.2d 196. The

petitioner contended that the district court improperly referred the motion to the magistrate judge,

the Ninth Circuit rejected. Id. The court held that any duties of the magistrate judge are not

inconsistent with the constitution so long as “there is no abdication of decision-making

responsibility of the district courts.” Id. at 205 (citing TPO, Inc. v. McMillen, 460 F.2d 348 (7th

Cir. 1972). The power to make the final decision rests with the district court alone. Campbell, 501

F.2d at 206 (“[W]e hold that the district court must make the final adjudication of the motion.”).

Campbell stands for the proposition that while magistrate judges may give a preliminary

disposition of the case, section 636(b) “cannot be read in derogation of the fundamental

responsibility of judges to decide the cases before them.” Id. at 206. The magistrate judge does not

have the authority to make the final decision on the issue, so they should not have the effect of

doing. When litigants cannot respond to recommendations made by the magistrate judge, the

magistrate judge’s decision becomes final. The legislature intentionally did not vest the magistrate

judge with the authority to dispose of a case, so courts cannot permit the same outcome by a

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procedural mechanism not provided for in the statute. All authority to make the final decision must

rest with the district court.

2. The district court cannot limit its own jurisdiction to make a de novo determination under the statute.

A rule limiting what is subject to de novo determination by the district court goes beyond the

scope of the Court’s supervisory powers and conflicts with constitutional and statutory

provisions. While courts of appeals can establish rules pursuant to their supervisory powers to

aid in the management of litigation, they may not limit the jurisdiction conferred on the court by

Congress. See Thomas v. Arn, 474 U.S. 140,149 (1985) (“Even a sensible and efficient use of the

supervisory power, however, is invalid if it conflicts with the constitutional or statutory

provisions.”) and George, 971 F.2d 1113, 1118 (“The district court cannot artificially limit the

scope of its review by resort to ordinary prudential rules, such as waiver provide that the proper

objection to the magistrate’s proposed finding has been made and the appellant’s right to de novo

review by the district court has been established.”) Congress vested the district court with the

authority to give “fresh considerations to the issues.” H.R. Rep. 94-1609 at 3 (1976). By failing

to consider arguments and limiting the consideration to be given to the issues the district court is

limiting its jurisdiction. Failing to raise all potential arguments before the magistrate cannot be

likened to “scheduling an order or paying a filing fee” in the same way that filing the objection

can. Thomas, 474 U.S. at 147. Especially when the arguments were raised by the magistrate

himself. By implying a waiver, the court is limiting both the right to a de novo determination and

the right to make an objection. A circuit court may not limit the subject-matter jurisdiction

conferred on it by congress, and thus the court does not have the supervisory power to

promulgate the rule. Id.

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The waiver of further appellate review the Court found permissible in Thomas is easily

distinguishable from a rule implying waiver from failure to raise an argument. In Thomas, the

Court held that it did not violate Article III to condition further appeal on an objection to the

magistrate’s R&R. 474 U.S. at 142. Because filing an appeal to the magistrate’s R&R was

procedural, the circuit court had the discretion to bar litigants from appealing a district court’s

decision after not objecting to the R&R. Id. at 146-47. However, the waiver of de novo

determination of arguments is contrary to legislative intent. George, 971 F.2d at 1118. The rule in

Thomas limited a litigant’s right to appeal where the statute was silent. 474 U.S. at 149. The statute

itself differentiates the standard of review of a litigant who objects to the magistrate’s R&R from

a litigant who does not. 28 U.S.C. §636 (2009). Thus, the statute provides a basis for knowing that

if the litigant does not object to the magistrate’s R&R review will be limited. The objection is the

mechanism that gives rise to de novo review. On the other hand, the rules adopted by sister circuits

limit the right that litigants are statutorily entitled to when they object. George, 971 F.2d at 1118.

The statute does not provide any additional differentiation that could serve as a basis for restricting

the right to a “fresh consideration of the issues.”

The legislative intent was that the district court should hold the “ultimate decision-making

power” to determine the issues. Raddatz, 447 U.S. at 680. Courts do not have the power to limit

their jurisdiction, thus the substantive waiver read by other circuits is unconstitutional. In Thomas,

the court found that the condition of “filing a piece of paper” was sufficient to condition review of

an appellate court. 474 U.S. at 149. The rule proposed by Appellant does not fall within the

supervisory powers of the Court.

Even if the waiver falls with the supervisory power granted to the courts, it conflicts with

both statutory and constitutional provisions. The Federal Magistrate Act forbids a finding that

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failure to raise arguments constitutes a waiver of those arguments. Section 636(b)(1)(C) clearly

states that a “judge of the court shall make a de novo determination of those portions of the report

or recommendations to which objection is made.” The district court has a statutory obligation to

make a de novo determination of all objections. See U.S. v. Shami, 754 F.2d 670 (6th Cir. 1985)

(holding that after objection the district court must make an “independent determination of the

dispositive issues) (citing United States v. Raddatz, 474 U.S. 667, 675-76 (1980)). The district

court recommended “the district court utilize the nexus test.” Once the magistrate made the

recommendation, Fauci had the legal right to make an objection to that issue regardless of whether

he raised it before the magistrate.

B. Under sister circuits discretionary approaches, the district court had the discretion to hear the arguments.

If this court does find that the statute allows for the waiver of any argument not raised before

magistrate, it should adopt the discretionary approach affording deference to district courts who

would like to hear new arguments. District Courts have been granted the “ultimate decision-

making power,” so the district court should be vested with the decision to hear the arguments.

1. The district court acted within the scope of its judicial power in deciding to hear Fauci’s argument.

This court should find that district courts have wide discretion in determining when a party has

waived their legal arguments. The “ultimate decision-making power” is vested in the district

courts. Raddatz, 447 U.S at 683. For that reason, district courts should be afforded discretion to

determine when a litigant has waived their right to waive new arguments. Williams v. McNeil, 552

F.3d 1287, 1292 (11th Cir. 2009). Granting the district courts the power to decline to hear new

legal arguments as they see fit is the interpretation of discretion that closely aligns with the

statutory scheme. This balances district courts’ Article III judicial power with Congress’s intention

to increase judicial efficiency.

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The district court is in the best position to balance their Article III power and the need for

judicial efficiency. Mandating a waiver of new arguments or so severely limiting the factors the

district court can consider undermines the district courts’ “ultimate decision-making” power. In

Williams v. McNeil, the Eleventh Circuit affirmed the district court’s decision to decline to hear

the defendant’s argument. 557 F.3d 1292. The defendant filed for habeas relief after a prior appeal

for post-conviction was denied. In their response, the state argued that the defendant’s petition was

untimely. Id. at 1289. The magistrate urged the defendant to file a response to the movant’s motion,

but the defendant declined to do so. Id. Before the district court the defendant raised various new

arguments that the defendant could have included in a response. Id. The district court declined to

hear the new arguments, based on the defendant’s failure to file a response. Id. The district court

was in the best decision to determine how inefficient addressing the argument would be. Id. The

failure to file an objection in Williams was a waste of time, and ultimately led to an over-simplified

analysis of the timeliness issue by the magistrate. The district court had the discretion to determine

it was inefficient and a waste of judicial resources to consider the timeliness arguments. Further in

Worley v. City of Lilburn, the Eleventh Circuit affirmed the decision to not consider new arguments

of the defendant when he failed to raise the argument before the magistrate, citing that he had

supplemented his response to the Defendant’s motion for summary judgment eight times. 408 Fed.

Appx. 248, 253 (11th Cir. 2011). The discretion to hear new arguments is ultimately concerned

with maximizing judicial resources. The district court is in the best position to know what new

arguments will be the least efficient for it to hear.

In Cupit v. Whitley, the Fifth Circuit affirmed it was within the district court’s discretion to not

hear an argument that was superficially addressed before the magistrate. F.3d 532 (5th Cir. 1994).

Similar to the defendant in Williams, the government in Cupit was ordered by the magistrate to

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respond to an argument, but only did so in a “cursory and non-responsive manner.” Id. Placing

wide discretion with the district courts allows the court to determine when a litigant’s failure to

raise an argument below was a waste of judicial resources. Freeman v. County of Bexar, 142 F.3d

848 (5th Cir.1998).

The district court did not abuse its discretion. District courts should be afforded wide discretion

because they are in the best position to determine when hearing an argument goes against the

notion of efficiency. Fauci’s failure to raise the argument was not because he did not thoroughly

respond to Appellant, nor was it a procedural tactic intended to “sandbag” the magistrate by failing

to present all arguments before him, with the hope of getting a “second bite” at the apple before

the district court. Fauci responded to the motion, but because of the short deadline, he did not raise

all potential arguments of Appellant’s liability under Title III of the ADA. The plain meaning

arguments presented by Fauci do not render the magistrate’s analysis as unusual. If this court is

to adopt a discretionary test, it should adopt a narrow reading of the Eleventh Circuit’s decision in

Williams, as it establishes the best balance of judicial efficiency and litigant’s right to a de novo

determination.

The court grant the district court wide discretion, which should be aimed at those who have

essentially committed a procedural default by failing to file a response or have rendered the

magistrate’s decision useless. This approach to considering new arguments gets to the heart of

the sister circuits fear of “sandbagging” before the magistrate court, only to appeal later. This

also disincentivizes litigants from lying in wait and not participating in the judicial process prior

to the district court’s review. See U.S. v. Howell, 231 F.3d 615, 622 (9th Cir. 2000). By adopting

this approach, the court will impose the most logical condition on the right to a de novo

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determination, respecting the district court’s Article III power and the notion of judicial

economy.

2. The district court correctly determined Fauci was entitled to raise his argument under the Wells Fargo Test.

To determine if a litigant may bring a new argument before the district court, the courts

in the Second Circuit prioritizes the discretion afforded to the district court by statute. In Wells

Fargo Bank N.A. v. Sinnott, the district court suggested that courts should look to the following

factors:

(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.

2010 WL 297830 (D. Vt. Jan. 19, 2010). In applying the Wells Fargo test, the district court

correctly exercised discretion and found that Fauci could raise his new argument. The primary

reason that Fauci failed to raise the new arguments before the magistrate was that he had not

completed the requisite discovery to be aware of the arguments. After filing his motion, Fauci

moved for a stay of adjudication and for reconsideration of the order denying discovery. Cf.

Amadasu v. Nagati, 2012 WL3930386 (E.D. N.Y. 2012) (not finding the plaintiff’s request for

extended discovery compelling when the plaintiff failed to file a response to the motion.). Viewing

Fauci’s failure to raise the argument in this context supports that the exclusion of the argument was

not a tactical maneuver, but rather the result of discovery difficulties.

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Fauci’s new argument is also a purely legal issue. Whether websites can be a “place of

public accommodation” is analogous to Contreras v. Walmart Stores East, 2020 WL 1429473

(E.D.N.Y. 2020). As noted by the district court judge, there was no dispute of material fact. To

determine if the ADA allows websites to be a place of public accommodation, does not require

any additional facts.

As mentioned above, both efficiency and fairness weigh in the favor of considering Fauci’s

argument. Fauci originally moved for additional time prior to the deadline for the opposition for

Appellant’s motion which Cuomo denied. Efficiency and fairness also support a finding that the

district court correctly allowed Fauci to raise the new argument. It is unfair to limit Fauci is not

raising an unrelated or frivolous argument, but one that is a matter of first impression before the

circuit. To correctly make a determination on the issue, the court would need to hear the new

arguments. Additionally, in Judge Cuomo’s recommendation he specifically recommended the

nexus test, to fully object to the R&R it is only fair Fauci be able to raise new

arguments. Ultimately, the Wells Fargo factors weigh in favor of the district court’s decision to

hear Fauci’s arguments and the district court correctly heard the argument.

II. Title III applies to the Website, regardless of whether a nexus is required.

Title III mandates as a general rule that “[n]o individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The

plain meaning is that the owner or operator of a “Web site, or other facility (whether in physical

space or in electronic space) that is open to the public” cannot prevent disabled persons from

entering or using the facility as nondisabled persons do. Doe v. Mut. of Omaha Ins. Co., 179 F.3d

557, 559 (7th Cir. 1999) (emphasis added). Here, the Website has prevented Fauci from using it

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as nondisabled persons do. The Website needs no nexus to Spicy Peach’s brick-and-mortar store.

But even if a nexus is required, the Website has a sufficient nexus to the brick-and-mortar store.

Further, public policy supports applying Title III to the Website. What matters is the Website’s

function, not its form. Therefore, this Court should hold that Title III applies to the Website.

A. Title III applies to the Website because no nexus is required.

The Website is a “place of public accommodation” under the plain text and structure of

Title III. Even if the Website is not a “place of public accommodation,” Title III applies to it

because no nexus is required. The ADA’s purpose and legislative history confirm this. Further, a

contrary interpretation would lead to absurd results. Finally, the DOJ’s interpretation that Title III

applies to websites is entitled to deference. Thus, this Court should hold that Title III requires no

nexus and applies to the Website.

1. The Website is a “place of public accommodation,” and the rules of statutory construction confirm this.

A private entity is rendered a “place of public accommodation” based on whether it offers certain

goods and services to the public. Title III defines “public accommodation” under 42 U.S.C. §

12181(7) (2020). When a statute includes an explicit definition, courts must follow that definition.

Stenberg v. Carhart, 530 U.S. 914, 942 (2000). If a private entity affects commerce and falls under

one of twelve extensive categories, it is a “public accommodation.” § 12181(7). These categories

are organized by the type of business an entity conducts and “should be construed liberally[.]”

PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001). Spicy Peach and its website are a private

entity that affects commerce. Because the Website offers a service for people to rent movies for

entertainment or recreation, it falls under at least four categories as a “place of exhibition or

entertainment,” “sales or rental establishment,” “service establishment,” or “place of recreation.”

§ 12181(7)(C), (E), (F), (I). Thus, the Website is a “public accommodation” under the plain text.

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The First and Seventh Circuits believe private entities, like the Website, are rendered a

“public accommodation” because of their function, not their form. The First Circuit has held the

plain text does not require “public accommodations” to have physical structures for persons to

enter. Carparts Distrib. Ctr. v. Auto Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994). The court

relied on the inclusion of “travel services” as a “public accommodation” because many conducted

business without requiring people to enter a physical structure, such as by phone or mail. Id.

Therefore, as the Seventh Circuit recognized, a “public accommodation” can no more discriminate

on the basis of a disability “over the Internet” than a furniture store can do that to a person who

enters the store. Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001). The site of sale

is irrelevant. Id. Rather, “what matters is that the good or service be offered to the public.” Id.; see

also Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1998) (emphasizing it is the sale of

goods and services to the public that is crucial, not how and where that sale is executed).

Although some courts believe how and where goods and services are offered determine if

an entity is a “public accommodation,” these courts have misapplied the principles of noscitur a

sociis—a word is interpreted in the context of the accompanying words—and ejusdem generis—

when a word or phrase follows a list of specifics, the general word or phrase will be interpreted to

include only the items of the same class as those listed. See Magee v. Coca-Cola Refreshments

USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016). These courts hold “public accommodations” must

be physical structures open to the public because every example listed supposedly is. Id. But courts

“do not woodenly apply limiting principles every time Congress includes a specific example along

with a general phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 (2008) (refusing to apply

the principle of noscitur a sociis); see also, U.S. v. Alpers, 338 U.S. 680, 682 (1950) (noting

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limiting principles cannot be used to “obscure and defeat the intent and purpose of Congress.”).

Thus, these courts have misused these doctrines with selective application.

In prioritizing form over function, these courts dismiss the inclusion of “travel service” in the

categories because Congress likely “had no better term than ‘service’ to describe an office

[providing] travel services[.]” See Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir.

1997). Yet, the Sixth Circuit ironically provided that better term: travel service office. Further,

the ADA was passed in 1990, making it irrelevant most examples are physical structures. And

most importantly, these doctrines compel the opposite conclusion because § 12181(7) groups the

categories according to function, not form. Thus, the Emory District Court stated correctly that

under ejusdem generis, “video services like Spicy Peach’s are of the same general class as those

listed” in § 12181(7). R. 22-23.

Those courts have also mistakenly put emphasis on the word “place” in § 12182(a). Magee,

833 F.3d at 535. But “place” merely designates that Title III prohibits discrimination by public

accommodations occurring anywhere. A definition of “place” in Cambridge Dictionary states,

“used after words such as ‘any’ and ‘some’ as a different way of saying “anywhere,” “somewhere,”

etc.”2 Thus, Congress used the phrase “any place of public accommodation” as a catchall to

prohibit discrimination by public accommodations offering goods and services to the public no

matter how or where they are doing so, including over the Internet. Therefore, Congress included

“place” because there was no other less cumbersome term to describe those businesses. Andrews

v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 394 (E.D.N.Y. 2017) (holding a website to be a

“a place of public accommodation”).

2 Place, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/place (last visited Sep. 20, 2020).

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Indeed, the everyday use of “place” shows it may refer to more than physical locations. See

Muscarello v. U.S., 524 U.S. 125, 127-33 (1998) (examining everyday usage of the term “carry”

in addition to dictionary definitions). A person referring to Amazon’s website may say, “I got it

on Amazon, it’s my favorite place to shop.” The Supreme Court has stated, “[previously] there

may have been difficulty in identifying the most important places (in a spatial sense) for the

exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the

Internet in general[.]” Packingham v. N.C., 137 S. Ct. 1730, 1735 (2017) (examining the First

Amendment) (emphasis added). Thus, people speak of the Internet in spatial terms. Email

addresses, IP addresses, and website addresses exist for the same reason street addresses do—to

allow a person to navigate to “places” or to communicate with people.

Further, the ADA’s overall language and structure support the First and Seventh Circuits’

interpretation. In discerning the plain meaning of a statute, courts must look to the particular

language at issue, as well as the language and design of the statute as a whole. K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988). The fundamental canon of statutory construction is that

one must read the words of a statute in their context and with a view to their place in the overall

statutory scheme. Util. Air Regulatory Grp. v. E.P.A., 537 U.S. 302, 320 (2014). Examining the

statute as whole and the context of “place” in the overall statutory scheme illuminates four reasons

“place” does not impose a physical structure requirement.

First, titles and headings throughout Title III support that what matter is a private entities

function, not its form. The title of a statute or text may aid in resolving an ambiguity in the

legislative text. I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991). Title

III is titled “Public Accommodations and Services Operated by Private Entities,” not “Places of

Public Accommodation and Services Operated by Private Entities.” Nor is it “Public

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Accommodations and Services Operated at (or in) Private Entities.” Similarly, § 12182 is titled

“Prohibition of Discrimination by Public Accommodations.” And Title III lists the categories

under the heading “Public accommodation.” § 12181(7). Yet, Title III never defines “place” or

“place of public accommodation.”

Second, in § 12181(7), the word “public” modifies the types of goods or services offered,

not “place.” For example, § 12181(7) lists “other place of public display or public collection,” not

“other public place of display or collection.”

Third, § 12181(7) uses different words in addition to “place,” such as “office,” and

“establishment,” indicating again that “any place of public accommodation” was merely meant to

prohibit discrimination by public accommodations that offers goods and services to the public, no

matter how or where.

Lastly, Title III’s use of “facilities” confirms function, not form, is what matters. See Andrews,

268 F. Supp. 3d at 394-95 (finding the use of “facilities” throughout Title III bolsters this

interpretation). Courts presume “identical words used in different parts of the same act are intended

to have the same meaning[.]” Util. Air, 537 U.S. at 320. In Title III, “facilities” plainly refers to

physical structures. See, e.g., § 12183(b) (“Subsection (a) shall not be construed to require

installation of an elevator for facilities that are less than three stories or have less than 3,000 square

feet per story unless the building is a shopping center . . . .”). Here, the “same meaning”

presumption and context indicate “facilities” refers to physical structures throughout Title III,

including § 12182(a). Thus, “place” cannot refer to a physical structure in § 12182(a). Otherwise,

Congress would not have included “facilities.” Denying enjoyment of facilities would inherently

deny enjoyment of goods and services in a “public accommodation.” Therefore, this construction

of “place” renders “facilities” superfluous, a result that courts must avoid. See Williams v. Taylor,

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529 U.S. 362, 364 (2000) (emphasizing the “cardinal principle of statutory construction that courts

must give effect, if possible, to every clause and word of a statute”). Further, Congress could have

used “facility” instead of “place,” i.e., “any facility of public accommodation.” Yet, Congress did

not do this. Thus, “place” cannot limit “public accommodation” to the form of physical structures.

Here, the Website is a “public accommodation” because of its function, not its form. “[T]he

fact that a statute can be applied in situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212

(1998) (finding Title II of the ADA applies to state prison inmates even though Title II does not

specifically mention prisons). Therefore, it is irrelevant web-based services did not exist when the

ADA was passed and were not listed as a specific example. It is only relevant that the Website

meets the broad definition of “public accommodation.” And here it does.

2. Even if the Website is not a “place of public accommodation,” it is a service of “place of public accommodation” and no nexus is required.

Title III prohibits denying “enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation[.]” § 12182(a) (emphasis added).

“Facilities” is only one of several items to which a disabled person is entitled to full and equal

enjoyment. And the plain text mandates Title III may apply even if the goods and services were

not offered or provided at a physical facility. Requiring a nexus between a website’s discrimination

and a physical facility effectively rewrites § 12182(a) to include “and,” rather than “or,” and “at”

or “in” rather than “of.” See Pallozzi, 198 F.3d at 33 (“The term ‘of’ generally does not mean ‘in,’

and there is no indication that Congress intended to employ the term in such an unorthodox manner

in [§ 12182(a)].”). Thus, a website’s discrimination does not require a nexus to a physical facility.

Even if the Website is not a “public accommodation,” it is a good, service, privilege, advantage or

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accommodation of Spicy Peach’s physical store. Therefore, Title III prohibits denying the full and

equal enjoyment of the Website.

3. The ADA’s purpose and legislative history and the principle of avoiding absurd results confirm Title III prohibits the Website’s discrimination, regardless of whether a nexus exists.

The ADA’s broad mandate is able to keep pace with the fact that the virtual reality of the Internet

is almost as important now as physical reality alone when the ADA was passed. Andrews 268 F.

Supp. 3d at 395. Congress enacted the ADA “to provide a clear and comprehensive national

mandate” to end widespread discrimination against disabled individuals, after finding it has a long

history and continues to be a serious and pervasive social problem. PGA Tour, 532 U.S. at 675.

Courts read broad statutes like the ADA to reflect an intentional effort to confer the flexibility

necessary to forestall obsolescence. See Mass. v. E.P.A., 549 U.S. 497, 532 (2007) (citing Pa.

Dep’t. of Corr. v. Yeskey, 524 U.S. at 212).

Congress specifically intended to remedy discriminatory communication barriers. See §

12101(a)(5). Discrimination under Title III includes a public accommodation’s failure to ensure

that no disabled individual “is excluded, denied services, segregated, or otherwise treated

differently than other individuals because of the absence of auxiliary aids and services[.]” §

12182(b)(2)(A)(iii). Requiring a nexus would contravene the purpose of the ADA because it denies

disabled persons, like Fauci, protection under the ADA due to arbitrary distinctions of form. Thus,

a broad interpretation is proper because it fulfills the ADA’s purpose.

The legislative history also supports that what matters is function, rather than form. Congress

intended that “the types of accommodation and services . . . should keep pace with the rapidly

changing technology of the times,” and that the twelve categories were to be “construed

liberally[.]” H.R. Rep. No. 101-485, pt. 2, at 100, 108 (1990). Indeed, Congress found it “critical”

to define places of public accommodation even more broadly than the Civil Rights Act of 1964

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because “discrimination against people with disabilities is not limited to specific categories of

public accommodations.” Id. at 35.

While the categories are exhaustive, the specific examples are merely “a representative

sample of the types of entities covered under [each] category.” H.R. Rep. No. 101-485, pt. 3 at 54.

A person alleging discrimination does not have to prove the charged defendant is similar to the

examples. Id. It is not necessary to show a jewelry store is like a clothing store but rather “it is

sufficient that the jewelry store sells items to the public.” Id. The House Report does not mention

that it would be sufficient that the jewelry store sells items at a physical structure open to the

public. Nat’l Fed’n. of the Blind v. Scribd, 97 F. Supp. 3d 565, 574 (D. Vt. 2015). Thus, the

legislative history confirms what matters is whether public accommodations offer goods and

services to the public, not how and where they are offered.

How and where public accommodations offer goods and services is not what matters

because that would produce absurd results. Courts have long adhered to the rule that statutory

interpretations that would produce absurd results must be avoided if alternative interpretations

consistent with the legislative purpose are available. Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 575 (1982). Interpreting Title III to protect persons who enter a physical structure but not

those “who purchase the same services over the telephone or by mail” is irrational. Carparts, 37

F.3d at 19. Carparts’s reasoning extends to services purchased over the internet because business

is increasingly conducted online. Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200

(D. Mass. 2012) (holding Netflix’s online streaming service to be a “public accommodation”). No

functional difference exists between “public accommodations” in a physical structure and those

that sell goods and services online. Even in 1997, the Supreme Court realized this: “The Web is

thus comparable, from the readers’ viewpoint, to . . . a sprawling mall offering goods and services.”

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Reno v. A.C.L.U., 521 U.S. 844, 853 (1997). Thus, requiring the Website to have a nexus would

produce an absurd result. Many videos are only available online. Thus, non-disabled persons could

enjoy all of Spicy Peach’s videos, while those with a hearing disability, like Fauci, could not. Fauci

would be forced to spend time and energy going to the brick-and-mortar store, when just leaving

the home is much more difficult for him than a non-disabled person. The First Circuit recognized

“Congress could not have intended such an absurd result.” Carparts, 37 F.3d at 19.

Congress intended to integrate disabled individuals “into the economic and social

mainstream of American life.” PGA Tour, 532 U.S. at 675. But a strict commitment to a nexus

requirement denies a smooth road to integration by leaving large gaps of discrimination uncovered.

Andrews, 268 F. Supp. 3d at 397 (“It would be perverse to give such an interpretation to a statute

intended to comprehensively remedy discrimination.”). The Internet and commerce conducted on

it are central to the economic and social mainstream of American life. Under that interpretation,

“the same technological advances that have offered disabled individuals unprecedented freedom

may now operate to deprive them of rights that Title III would otherwise guarantee.” Parker, 121

F.3d at 1020 (Martin, J. dissenting). That absurd result would deny Congress’s goals of “equality

of opportunity, full participation, independent living, and economic self-sufficiency.” §

12101(a)(7). But here, this Court can fulfill these goals by holding Title III applies to the Website,

regardless of whether a nexus exists.

4. The DOJ interprets Title III to apply to web-based services.

The Assistant Attorney General recently penned a letter reaffirming the DOJ’s position that

Title III applies to public accommodations’ websites. Letter from Stephen E. Boyd, Assistant

Att’y Gen., DOJ (Sept. 25, 2018), to Rep. Ted Budd,

https://images.cutimes.com/contrib/content/uploads/documents/413/152136/adaletter.pdf. The

amount of deference owed to an agency’s interpretation in an opinion letter depends on “the

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thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors which give it power to persuade, if lacking power

to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The DOJ has articulated its position

for over two decades. See, e.g., Letter from Deval L. Patrick, Assistant Attorney General, DOJ

(Sept. 9, 1996) (“Covered entities under the ADA are required to provide effective communication,

regardless of whether they generally communicate through . . . computerized media such as the

Internet.”). The DOJ has thoroughly laid out why it believes the ADA applies to websites.

Moreover, DOJ regulations provide that a “public accommodation shall furnish appropriate

auxiliary aids and services where necessary to ensure effective communication with individuals

with disabilities.” 28 C.F.R. § 36.303(c)(1). “Auxiliary aids and services” include “closed

captioning.” § 36.303(b). This interpretation is consistent with the statute’s text and purpose.

Therefore, this Court should give a large amount of deference to the DOJ’s interpretation.

B. Even if a nexus is required, the website has a sufficient nexus to Spicy Peach’s brick-and-mortar store.

Under the nexus requirement, a website requires a connection to a physical structure open to the

public. The Website “operate[s] in tandem with” Spicy Peach’s brick-and-mortar store and

performs the same function. R.3. The Website “contains many of the same videos available for

rental at the brick-and-mortar store.” R.4. The website has location and contact information for the

brick-and-mortar store and sells gift cards to be used online or in the physical store. Id. Therefore,

the Website’s services have a sufficient nexus to the brick-and-mortar store.

At least one court has found a sufficient alleged nexus based on similarity of content alone. Nat’l

Ass’n of the Deaf v. Harvard Univ., 377 F. Supp. 3d 49 (D. Mass. 2019). That court held the

plaintiff alleged a sufficient nexus between Harvard’s online audiovisual content, which did not

provide closed captioning, and Harvard’s physical locations. Id. at 60. Because the content was

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designed to simulate what one would find in a Harvard classroom, the court concluded, “[i]t may

be inferred that this online content is the same as a good or service” offered at Harvard’s physical

location. Id.

Additionally, at least one court has held a nexus is found when commercial websites

“operate in tandem” with the entity’s brick-and-mortar store. Del-Orden v. Bonobos, Inc., 2017

WL 6547902 (S.D.N.Y. Dec. 20, 2017). The court emphasized the store’s website was

indisputably a service of the brick-and-mortar store. Id. at *28-30.

Like the defendant in Harvard, Spicy Peach offers many movies in its brick-and-mortar

store that it offers online. And the Website performs the same function as the brick-and-mortar

store, that is, renting a movie to a customer to watch in their home. Further, like the defendant in

Bonobos, the Website is a service of and “operates in tandem” with Spicy Peach’s brick-and-

mortar store.

Although some courts require a website’s inaccessibility to impede the full and equal

enjoyment of goods and services offered in a physical store, this strict nexus theory contravenes

the ADA's plain text and purpose. The Ninth Circuit found a sufficient nexus between Domino’s

website and the physical restaurant, even where people only ordered pizzas for at-home delivery

because the pizza comes from a physical structure open to the public. Robles v. Domino’s Pizza,

LLC, 913 F.3d 898, 905 (9th Cir. 2019). Yet, this interpretation does not cover at-home movie

“delivery” from a physical structure open to the public because the “delivery” is over the Internet.

Even if Title III implies a nexus requirement, nothing in the text mandates this stringent standard.

This is an absurd result that cannot be. Congress intended to give disabled people the right “to

fully participate in all aspects of society.” § 12101(a)(1) (emphasis added). Therefore, this Court

cannot adopt the Ninth Circuit’s stringent nexus standard.

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Rather, this Court should adopt the nexus standard used in Harvard and Bonobos and hold

the Website has a sufficient nexus to Spicy Peach’s brick-and-mortar store.

C. Public Policy supports applying Title III to the Website.

From 2000 to 2019, the number of Americans who use the internet climbed from 52% to 90%.3

The importance of goods and services offered over the Internet has become even more evident

during the COVID-19 pandemic, as 53% of Americans have said the internet has been essential

during the crisis.4 Internet retail sales are up 241% year over year during the second quarter of

2020.5 As technology has rapidly evolved, Judge Martin’s solemn dissent in Parker rings entirely

true: “An increasing array of products and services are becoming available for purchase . . . via

the Internet[.] . . . As the modern economy increases the percentage of goods and services available

through a marketplace that does not consist of physical structures, the protections of Title III will

become increasingly diluted.” Parker, 121 F.3d at 1020 (Martin, J., dissenting). The Thirteenth

Circuit should heed Judge Martin’s words and realize that “the Cyber Age is a revolution of historic

proportions[.] . . . The forces and direction of the Internet are so new, so protean, and so far

reaching that courts must be conscious what they say today might be obsolete tomorrow.”

Packingham, 137 S. Ct. at 1736. What the Sixth Circuit said in 1997 is now obsolete. Unlike the

Sixth Circuit, the Thirteenth Circuit can heed Judge Martin’s warning and formulate an

3 Internet/Broadband Fact Sheet, Pew Research Center, https://www.pewresearch.org/internet/fact-sheet/internet-broadband/ (last visited Sept. 20, 2020). 4 53% of Americans Say the Internet Has Been Essential During the COVID-19 Outbreak, Pew Research Center, https://www.pewresearch.org/internet/2020/04/30/53-of-americans-say-the-internet-has-been-essential-during-the-covid-19-outbreak/pi_2020-04-30_covid-internet_00-1/ (last visited Sept. 20, 2020). 5 U.S. E-Commerce Growth Rate: 2001-2020, Marketplace Pulse, https://www.marketplacepulse.com/stats/us-ecommerce/us-e-commerce-growth-rate-55 (citing The Census Bureau of the Department of Commerce) (last visited Sept. 20, 2020).

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interpretation of Title III that will inhibit obsolescence of not only its interpretation, but of the

ADA itself. Therefore, this Court should find that the Website is subject to Title III.

CONCLUSION

The district court correctly considered Fauci’s argument. The district court was required to

make a de novo determination of all of Fauci’s arguments. Regardless, the district court still had

the discretion under the discretionary approach to hear all of Fauci’s arguments.

Title III applies to the Website, regardless of whether a nexus is required. In view of the

ADA’s text, purpose, and legislative history, Title III applies to the Website because it is a “public

accommodation” and no nexus is required. Even if a nexus is required, the Website has a sufficient

nexus to the brick-and-mortar store. Finally, public policy supports applying Title III to the

Website.

Therefore, this Court should hold that the district court correctly considered Fauci’s

argument and that Title III applies to the Website.