Amicus Curiae Brief — Domino's Pizza, LLC, Petitioner v. Guillermo Robles

No. 18-1539

IN THE

Supreme Court of the United States

___________

DOMINO’S P IZZA LLC,

v.

Petitioner,

GUILLERMO ROBLES,

Respondent.

___________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

___________

July 15, 2019

CORY L. ANDREWS

Counsel of Record

CORBIN K. BARTHOLD

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether Title III of the ADA requires a website or mobile phone application that offers goods or

services to the public to satisfy discrete accessibility

requirements for individuals with disabilities.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iv

INTEREST OF AMICUS CURIAE ......................... 1

STATEMENT OF THE CASE ................................. 2

SUMMARY OF ARGUMENT.................................. 5

REASONS FOR GRANTING THE PETITION ...... 7

I.

REVIEW IS WARRANTED TO ENSURE THAT

THE SWEEPING REGULATION OF AMERICA’S DIGITAL ECONOMY REMAINS A “MAJOR QUESTION” SOLELY FOR CONGRESS.......... 8

A.

Only Congress May Resolve a

Major Question ................................... 8

B.

Whether and How to Impose a

Federal Accessibility Regime on

the Digital Economy Is a Major

Question ............................................ 11

II.

THIS COURT’S INTERVENTION IS CRUCIAL

BECAUSE THE DOJ LACKS BOTH THE

AUTHORITY AND THE ABILITY TO CREATE

AN INTERNET-ACCESSIBILITY RULE .............. 14

III.

ONLY THIS COURT CAN STOP JUDGES

AND JURIES FROM REWRITING THE ADA

AND EXCEEDING THEIR PROPER ROLE .......... 18

CONCLUSION ....................................................... 22

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ............................................... 5

Carparts Dist. Ctr., Inc. v. Auto. Wholesaler’s

Assoc. of New Eng., Inc., 37 F.3d 12

(1st Cir. 1994) ...................................................... 20

Cullen v. Netflix,

880 F. Supp. 2d 1017 (N.D. Cal. 2012) ............... 19

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

179 F.3d 557 (7th Cir. 1999) ......................... 19, 20

FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000) ...................... 1, 6, 9, 10

Gil v. Winn Dixie Stores, Inc.,

257 F. Supp. 3d 1340 (S.D. Fla. 2017) ................ 12

Gonzales v. Oregon,

546 U.S. 243 (2006) ....................................... 10, 17

Iselin v. United States,

270 U.S. 245 (1926) ............................................... 6

King v. Burwell,

135 S. Ct. 2480 (2015) ............................... 1, 10, 17

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218 (1994) ............................................... 9

v

Page(s)

Nat’l Assoc. of the Deaf v. Netflix,

869 F. Supp. 2d 196 (D. Mass. 2012) .................. 19

PGA Tour, Inc. v. Martin,

532 U.S. 661 (2001) ............................................... 1

Reed v. CVS Pharm.,

2:17-cv-3877 (C.D. Cal. 2017) ............................. 21

Rios v. N.Y. & Co., Inc.,

2:17-cv-4676 (C.D. Cal. 2017) ............................. 21

Robles v. Yum! Brands, Inc.,

No. 2:16-cv-8211 (C.D. Cal. 2018)....................... 21

United States v. Mead Corp.,

533 U.S. 218 (2001) ............................................... 8

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) ............................................. 22

United States Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2019) .................... 7, 8, 11

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ................................. 1, 5, 9, 10

Statutes and Regulations:

29 U.S.C. § 794d (2000).......................................... 13

ADA Amendments Act of 2008, Pub. L. No.

110-325, 122 Stat. 3553 .................................. 3, 13

vi

Page(s)

The Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq. ..............................passim

42 U.S.C. § 12101(b)(1) ......................................... 2

42 U.S.C. § 12101(b)(2) ....................................... 16

42 U.S.C. § 12181(7) ................................ 2, 3, 8, 14

42 U.S.C. § 12181(7)(B) ......................................... 2

42 U.S.C. § 12182 .................................................. 2

42 U.S.C. § 12186(b) .......................................... 2, 3

Twenty-First Century Communications and Video

Accessibility Act of 2010,

Pub. L. No. 111-260, 124 Stat. 2751 ................... 13

47 U.S.C. § 613 (2010) ............................................ 13

28 C.F.R. § 36.104 .................................................... 3

28 C.F.R. § 36.307(a) .............................................. 19

Miscellaneous:

Achieving the Promises of the Americans with

Disabilities Act in the Digital Age—Current

Issues, Challenges, and Opportunities: Hearing

before the Subcomm. on the Constitution,

Civil Rights, 111th Cong. (Apr. 22, 2010) .......... 13

vii

Page(s)

Stephen Breyer, Judicial Review of Questions

of Law and Policy, 38 Admin. L. Rev. 363

(1986) ..................................................................... 8

J. Clement, Mobile App Usage—Statistics and

Facts, Statista (Oct. 10, 2017) ............................ 12

J. Clement, Most popular retail websites in the

United States as of December 2018, ranked by

visitors (in millions), Statista (July 3, 2019)...... 12

J. Clement, Retail e-commerce sales in the

United States from 2017 to 2023, Statista

(Jan. 16, 2019) ..................................................... 12

Comments of Am. Bankers Ass’n, Proposed

Rulemaking, Dkt No. 110 RIN 19-AA61

(Jan 24, 2011) ...................................................... 12

Comments of AT&T Inc., Proposed Rulemaking,

Dkt No. 110 RIN 1190-AA61 (Mar. 8, 2011) ...... 15

Comments of eBay Inc., Proposed Rulemaking,

Dkt No. 110 RIN 1190-AA61 (Jan. 24, 2011) ..... 15

Comments of Nat’l Rest. Assoc. and Retail

Indus. Leaders Assoc., Proposed Rulemaking,

Dkt No. 110 RIN 1190-AA61 (Jan. 24, 2011) ..... 15

Comments of U.S. Chamber of Commerce,

Proposed Rulemaking, Dkt No. 110

RIN 1190-AA61 (Jan. 24, 2011) .................... 14, 15

viii

Page(s)

Dep’t. of Justice, Nondiscrimination on the Basis

of Disability; Accessibility of Web Information

and Services of State and Local Government

Entities and Public Accommodations, 75

Fed. Reg. 43,460 (July 26, 2010)............... 3, 14, 16

Dep’t. of Justice, Nondiscrimination on the Basis

of Disability; Notice of Withdrawal of Four

Previously Announced Rulemaking Actions,

82 Fed. Reg. 60,932 (Dec. 26, 2017).................... 17

Digital Economy Accounted for 6.9% of GDP

in 2017, Bureau of Economic Analysis

(Apr. 4, 2019) ....................................................... 11

Frank H. Easterbrook, Statutes’ Domains,

50 U. Chi. L. Rev. 533 (1983) .............................. 22

William N. Eskridge Jr., Interpreting Law: A

Primer on How to Read Statutes and the

Constitution (2016).......................................... 8, 11

James Gillies & Robert Calliau, How the Web

Was Born: The Story of the World Wide

Web (2000) ............................................................. 7

Abbe R. Gluck & Lisa Schultz Bressman,

Statutory Interpretation from the Inside—An

Empirical Study of Congressional Drafting,

Delegation, and the Canons: Part 1, 65

Stan. L. Rev. 901 (2013) ...................................... 10

ix

Page(s)

Innovation and Inclusion: The Americans with

Disabilities Act at 20: Hearing before the

Subcomm. on Commc’ns, Tech., and the

Internet of the S. Comm. on Commerce, Sci.,

and Transp., 111th Cong. (May 26, 2010).... 12, 13

Samuel D. Levy & Martin S. Krezalek, A Call

for Regulation: The DOJ Ignored Website

Accessibility Regulation and Enterprising

Chaos Ensued, N.Y.L.J., Nov. 9, 2018 .................. 7

John F. Manning, Textualism and the Equity of

the Statute, 101 Colum. L. Rev. 1 (Jan. 2001).... 18

Preamble to Regulation on Nondiscrimination on

the Basis of Disability by Public Accommodations and in Commercial Facilities (July 26,

1991), reprinted in 28 C.F.R. Pt. 36, App. B,

at 645 (1997) .................................................. 18, 19

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ............................................................. 21, 22

Cass R. Sunstein, The Cost-Benefit Revolution

(2018) ................................................................... 21

David S. Tatel, The Administrative Process

and the Rule of Environmental Law, 34

Harv. Envtl. L. Rev. 1 (2010) .............................. 17

x

Page(s)

The Applicability of the Americans with

Disabilities Act (ADA) to Private Internet

Sites: Hearing before the Subcomm. on the

Constitution of the H. Comm. on the

Judiciary, 106th Cong. (Feb. 9, 2000) ................ 13

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation (WLF) is a

nonprofit, public-interest law firm and policy center

with supporters nationwide. WLF promotes and defends free enterprise, individual rights, limited government, and the rule of law. It often appears as an

amicus curiae in important statutory-interpretation

cases, to urge the Court to stop agencies and lower

courts from rewriting federal law. See, e.g., King v.

Burwell, 135 S. Ct. 2480 (2015); Util. Air Regulatory

Grp. v. EPA, 573 U.S. 302 (2014); FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000).

WLF supports the laudable goals of Title III of

the Americans with Disabilities Act. Yet a series of

lower court decisions—including the Ninth Circuit’s

decision here—has improperly expanded that statute’s reach far beyond anything its text can sustain.

Simply put, nothing in Title III imposes discrete accessibility requirements on Internet websites and

mobile apps.

The lower courts are frantically trying to fill

this statutory void with judge-made legislation. And

DOJ has tried, but so far failed, to expand the statute’s regulatory sweep by formal rule. Because rewriting the ADA is a task the Constitution reserves

solely for Congress, this Court’s review is warranted.

* No party’s counsel authored any part of this brief. No

person or entity, other than WLF and its counsel, helped pay

for the preparation or submission of this brief. At least ten days

before its brief was due, WLF notified all counsel of record of

WLF’s intent to file as amicus curiae. All parties have

consented to the filing of WLF’s brief.

2

STATEMENT OF THE CASE

The Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. § 12101 et seq., is a “comprehensive

national mandate for the elimination of discrimination against individuals with disabilities.” Id.

§ 12101(b)(1). The ADA “forbids discrimination

against disabled individuals in major areas of public

life, among them employment (Title I of the Act),

public services (Title II), and public accommodations

(Title III).” PGA Tour, Inc. v. Martin, 532 U.S. 661,

675 (2001) (citations omitted).

This case is about the third area, public accommodations. Title III of the ADA says 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.” See 42

U.S.C. § 12182.

The ADA lists twelve categories of “private entities” that “are considered public accommodations

for purposes of [the ADA],” if their operation “affect[s] commerce.” 42 U.S.C. § 12181(7). Those

twelve categories run the gamut from hotels, movie

theaters, and amusement parks to hospitals, schools,

and bus stations—but every category is a physical

location. Ibid. The relevant category here is “a restaurant, bar, or other establishment serving food or

drink.” Id. § 12181(7)(B).

The ADA authorizes the Department of Justice to issue regulations implementing Title III. 42

3

U.S.C. § 12186(b). Under that authority, DOJ has

defined a “place of public accommodation” as any

“facility operated by a private entity whose operations affect commerce and fall within at least one of”

the twelve categories specified in § 12181(7). 28

C.F.R. § 36.104. A “facility” is “all or any portion of

buildings, structures, sites, complexes, equipment,

rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal

property, including the site where the building,

property, structure, or equipment is located.” Ibid.

While it details twelve categories of “public

accommodations,” Title III says nothing about the

Internet or online accessibility. DOJ has acknowledged that the “Internet as it is known today did not

exist when Congress enacted the ADA.” Dep’t. of

Justice, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of

State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460, 43,463 (July 26,

2010). As a result, “neither the ADA nor [its] regulations * * * specifically address access to Web sites.”

Ibid.

Congress amended the ADA in 2008 but added

nothing about the Internet, websites, or mobile apps.

See ADA Amendments Act of 2008, Pub. L. No. 110325, 122 Stat. 3553. And though it has issued a bevy

of incoherent and contradictory statements on the

question over the years, DOJ has never issued a rule

applying Title III to the Internet.

Petitioner Domino’s Pizza LLC is a restaurant

chain that sells over 2.5 million pizzas worldwide

every day. It offers its customers “at least 15 ways to

4

order pizza.” Pet. Br. 11. Besides visiting a Domino’s

restaurant, customers may, for example, phone their

local store for delivery or in-store pickup. Ibid. They

may order pizza via text message, Tweet, or voiceactivated device (such as Amazon’s Alexa). Ibid. Customers may also order pizza (for delivery or in-store

pickup) through Domino’s website and mobile app.

Id. at 12.

Respondent Guillermo Robles, a blind resident

of California, sued Domino’s under the ADA. Robles’s

complaint alleges that by failing to “design, construct, maintain, and operate” its website and mobile

app “to be fully accessible to him,” Domino’s violated

Title III of the ADA. Pet. App. 2a. Robles did not

phone his local Domino’s store for pizza delivery or

in-store pickup. Nor did he try any of Domino’s other

means for ordering pizza. Robles uses screen-reading

software to access the Internet; he alleges that Domino’s website and app lacked adequate written descriptions for every digital image, preventing him

from completing an online order. Id. at 57a-60a.

On Domino’s motion, the district court dismissed Robles’s suit. Pet. App. 22a-42a. The court

agreed that the ADA applies to the websites and

mobile apps of brick-and-mortar places of public accommodation. Id. at 27a-29a. But the court held that

applying the ADA to Domino’s website and mobile

app, without “meaningful guidance” from DOJ on

how to comply, would violate Domino’s due process

rights. Id. at 34a.

The Ninth Circuit reversed. Pet. App. 1a-21a.

The panel held that (1) Title III applies to Domino’s

website and mobile app and (2) Domino’s had fair

5

notice of its Title III obligations under the ADA.

“The alleged inaccessibility of Domino’s website and

app,” the court opined, “impedes access to the goods

and services of its physical pizza franchise—which

are places of public accommodation.” Id. at 8a.

The Ninth Circuit remanded the case for the

district court “to decide in the first instance whether

Domino’s website and app provide the blind with effective communication and full and equal enjoyment

of its products and services” under the ADA. Id. at

21a.

SUMMARY OF ARGUMENT

As Domino’s emphasizes in its petition, the

decision below is not only unwise, it is profoundly

wrong. Congress never even enacted, much less debated, an ADA that defines Internet websites and

mobile apps as “public accommodations.” Pet. Br. 32.

By imposing discrete accessibility requirements on

Domino’s website and mobile app, the Ninth Circuit

effectively “rewrites Title III.” Ibid. Yet the panel’s

“need to rewrite clear provisions of the statute

should have alerted [it] that it had taken a wrong

interpretive turn.” UARG, 573 U.S. at 328. The

Court should grant review to stop the Ninth Circuit’s

rewrite of Title III from becoming the law of the

land.

To be clear, the question Domino’s petition

poses “is not what Congress ‘would have wanted,’”

but “what Congress enacted.” Argentina v. Weltover,

Inc., 504 U.S. 607, 618 (1992). And because Congress

did not enact an ADA that regulates, or even allows

the regulation of, websites and mobile apps, any rule

6

DOJ might enact that does so would be ultra vires.

Indeed, whether to expand the ADA to cover the vast

digital economy is a “major question”—that is, a

question of “such economic and political magnitude”

that Congress would never commit it to the discretion of an agency without explicitly saying so. Brown

& Williamson, 529 U.S. at 133.

Yet if DOJ may not amend the ADA, neither

may the Ninth Circuit. Enacted before the Internet

age, the ADA omits any mention of websites or mobile apps. “To supply omissions transcends the judicial function.” Iselin v. United States, 270 U.S. 245,

251 (1926) (Brandeis, J.). Judges do not wield the

statutes they want; they must enforce the statutes

they get. And the statutes they get come not from

themselves, nor from the Executive, but from the

people’s representatives in Congress. Neither the

Ninth Circuit nor any other court may rewrite federal law—no matter how well intentioned they may be.

Acting on an understandable but still misguided desire to achieve rough justice for the disabled, many lower courts have drifted far from these

fundamental principles. Only this Court’s intervention can remind those courts of their proper, narrow

role in our constitutional structure. Only then will

the difficult social and economic policy choices at

stake be returned to their rightful place—the Congress.

7

REASONS FOR GRANTING THE PETITION

As the petition and at least three appeals

court decisions make clear, the ADA does not reach

Internet websites and mobile apps. This is hardly

surprising. The World Wide Web did not exist in

1990, when Congress enacted the ADA. Tim Berners-Lee, a CERN research fellow in Switzerland,

would not create the first web server, web browser,

or website until 1991. See James Gillies & Robert

Calliau, How the Web Was Born: The Story of the

World Wide Web 230-35 (2000).

Even so, some observers have suggested that

DOJ could mitigate many of the petition’s concerns—

problems of regulatory uncertainty and burdensome

litigation—if only it would promulgate a uniform Internet-accessibility standard under the ADA. See

Samuel D. Levy & Martin S. Krezalek, A Call for

Regulation: The DOJ Ignored Website Accessibility

Regulation and Enterprising Chaos Ensued,

N.Y.L.J., Nov. 9, 2018. But that expedient view of

the problem overlooks a glaring defect—Congress

never authorized such a rule.

Yet even if the ADA were ambiguous on that

point—and it is not—“an ambiguous grant of authority is not enough.” United States Telecom Ass’n v.

FCC, 855 F.3d 381, 421 (D.C. Cir. 2019) (Kavanaugh, J., dissenting from denial of rehearing en

banc). Instead, “Congress must clearly authorize an

agency to take such a major regulatory action.” Ibid.

Above all, only Congress may rewrite federal law.

And only Congress can answer the momentous question of whether and how to extend the ADA’s accessibility regime to Internet websites and mobile apps.

8

The Ninth Circuit’s extra-statutory overreach cries

out for this Court’s review.

I.

REVIEW IS WARRANTED TO ENSURE THAT THE

SWEEPING REGULATION OF AMERICA’S DIGITAL ECONOMY REMAINS A “MAJOR QUESTION” SOLELY FOR CONGRESS.

A.

Only Congress May Resolve a Major Question.

An agency may fill a statutory gap only when

the “statutory circumstances” clarify that Congress

meant to grant it such power. United States v. Mead

Corp., 533 U.S. 218, 229 (2001). The statutory circumstances here betray any suggestion that Congress meant for Title III of the ADA to reach cyberspace. To fall within the scope of Title III, a public

accommodation must be a physical place like those

enumerated in § 12181(7). To expand the ADA to

cover virtual spaces would be to create new rights

and burdens that Congress never approved.

While Congress often grants the Executive authority to resolve “interstitial matters” in the “course

of the statute’s daily administration,” Congress itself

is “more likely to have focused upon, and answered,

major questions.” Stephen Breyer, Judicial Review

of Questions of Law and Policy, 38 Admin. L. Rev.

363, 370 (1986). And even “if Congress has delegated

an agency general rulemaking or adjudicatory power, judges presume that Congress does not delegate

its authority to settle or amend major social and

economic policy decisions.” William N. Eskridge Jr.,

Interpreting Law: A Primer on How to Read Statutes

and the Constitution 288 (2016).

9

This Court “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast

‘economic and political significance.’” UARG, 573

U.S. at 324 (quoting Brown & Williamson, 529 U.S.

at 160). Consistent with this principle, the Court has

repeatedly refused to extend the scope of a statute’s

regulatory reach over a “major question” without a

clear congressional grant:

•

In vacating a Federal Communications Commission rule that would have exempted certain

telephone companies from statutory rate-filing

requirements, the Court found it “highly unlikely that Congress would leave the determination of whether an industry will be entirely,

or even substantially, rate-regulated to agency

discretion.” MCI Telecomms. Corp. v. Am. Tel.

& Tel. Co., 512 U.S. 218, 231 (1994).

•

In rejecting the Food and Drug Administration’s attempt to regulate cigarettes as “drugs”

or “devices” under the Food, Drug, and Cosmetic Act, the Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”

Brown & Williamson, 529 U.S. at 146.

•

In overturning an interpretative rule by the

U.S. Attorney General that would have prohibited, under the Controlled Substances Act

(CSA), physicians from prescribing drugs for

assisted suicide, the Court rejected the “idea

that Congress gave the Attorney General such

broad and unusual authority through an implicit delegation in the CSA’s registration pro-

10

vision.” Gonzales v. Oregon, 546 U.S. 243, 267

(2006).

•

In vacating an Environmental Protection

Agency rule that would have subjected millions

of previously unregulated greenhouse-gas

emitters to onerous permitting requirements

under the Clean Air Act, the Court expressed

“skepticism” that the “long-extant statute” contained “an unheralded power to regulate so

‘significant [a] portion of the American economy.’” UARG, 573 U.S. at 324 (quoting Brown &

Williamson, 529 U.S. at 159).

•

In refusing to defer to the Internal Revenue

Service’s view that the Affordable Care Act authorizes billions of dollars each year in government subsidies to individuals who obtained

health insurance through a federal exchange,

the Court explained that, given the “deep ‘economic and political significance’” of that question, “[h]ad Congress wished to assign [it] to an

agency, it surely would have done so expressly.” King, 135 S. Ct. at 2489 (quoting UARG,

573 U.S. at 324).

At bottom, this Court’s major-questions doctrine “supports a presumption of nondelegation in

the face of statutory ambiguity over major policy

questions or questions of major political or economic

significance.” Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An

Empirical Study of Congressional Drafting, Delegation, and the Canons: Part 1, 65 Stan. L. Rev. 901,

1003 (2013).

11

The “key reason” for the doctrine “is the

strong presumption of continuity for major policies

unless and until Congress has deliberated about and

enacted a change in those major policies.” Eskridge,

supra, at 289. “Because a major policy change should

be made by the most democratically accountable process—Article I, Section 7 legislation—this kind of

continuity is consistent with democratic values.”

Ibid.

B.

Whether and How to Impose a Federal Accessibility Regime on the

Digital Economy Is a Major Question.

Though the Court has not provided a brightline test for when the expansion of a statute’s regulatory reach presents a major question, its precedents suggest some relevant factors. These include

(1) “the amount of money involved for regulated and

affected parties,” (2) “the overall impact on the economy,” (3) “the number of people affected,” and (4)

“the degree of congressional and public attention to

the issue.” United States Telecom, 855 F.3d at 422-23

(Kavanaugh, J.) (collecting cases). Here, under any

conceivable test, the Ninth Circuit’s drastic expansion of the ADA raises a major question.

The financial impact of the Ninth Circuit’s

version of the ADA is staggering, both as a share of

the economy affected and in the dollars at stake. According to the Bureau of Economic Analysis (BEA),

America’s “digital economy” accounted for $1.35 trillion of GDP in 2017. See Digital Economy Accounted

for 6.9% of GDP in 2017, BEA (Apr. 4, 2019),

<https://tinyurl.com/yxutmdcf>. In 2018, $504.6 bil-

12

lion in goods were sold online, and that amount will

likely surpass $735 billion in 2023. See J. Clement,

Retail e-commerce sales in the United States from

2017 to 2023, Statista (Jan. 16, 2019), <https://tiny

url.com/y9gc44ht>. Mobile apps generated $88.3 billion in revenue in 2016 and will likely generate

around $189 billion in revenue by 2020. See J. Clement, Mobile App Usage—Statistics and Facts, Statista (Oct. 10, 2017), <https://tinyurl.com/y5vdzl5s>.

Virtually every brick-and-mortar business in

the United States, from the smallest mom-and-pop

shop to the largest multi-national corporation, maintains an Internet website. In December 2018, 206.1

million unique users visited Amazon.com and 131.9

million unique users visited second-ranked Walmart.

com. See J. Clement, Most popular retail websites in

the United States as of December 2018, ranked by

visitors (in millions), Statista (July 3, 2019),

<https://tinyurl.com/y3egeel7>. And regulated parties estimate the cost of ADA Internet compliance

would range from $250,000 to $3 million per website.

See, e.g., Gil v. Winn Dixie Stores, Inc., 257 F. Supp.

3d 1340, 1345-47 (S.D. Fla. 2017); Comments of Am.

Bankers Ass’n, Proposed Rulemaking, Dkt No. 110

RIN 19-AA61 (Jan 24, 2011).

Nor is Congress in the dark. Congress has

long understood that the ADA does not mandate Internet accessibility for the disabled. It held hearings,

once in 2000 and twice in 2010, at which it considered whether to address Internet accessibility under

the ADA. See Innovation and Inclusion: The Americans with Disabilities Act at 20: Hearing before the

Subcomm. on Commc’ns, Tech., and the Internet of

the S. Comm. on Commerce, Sci., and Transp., 111th

13

Cong. (May 26, 2010); Achieving the Promises of the

Americans with Disabilities Act in the Digital Age—

Current Issues, Challenges, and Opportunities: Hearing before the Subcomm. on the Constitution, Civil

Rights, 111th Cong. (Apr. 22, 2010); The Applicability of the Americans with Disabilities Act (ADA) to

Private Internet Sites: Hearing before the Subcomm.

on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (Feb. 9, 2000). Yet Congress has

never considered a bill that would amend the ADA to

require Internet accessibility.

Instead, whenever it has sought to ensure disabled persons’ access to the Internet, Congress has

always turned elsewhere. In 1998, for instance, Congress amended § 508 of the Rehabilitation Act to require that all federal government websites be accessible to persons with disabilities. See 29 U.S.C.

§ 794d (2000). More recently, Congress enacted the

Twenty-First Century Communications and Video

Accessibility Act of 2010. Pub. L. No. 111-260, 124

Stat. 2751. It authorizes the FCC—not DOJ—to

promulgate regulations to address certain onlineaccessibility barriers for persons with disabilities.

See 47 U.S.C. § 613 (2010).

Finally, Congress knows how to amend federal

law when it wants to. Congress amended the ADA in

2008—the year after Apple introduced its popular

iPhone—but nothing in those amendments mentions

the Internet, websites, or mobile apps. See ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553.

In sum, whether and how to impose a federal

accessibility regime on the entire digital economy

14

qualifies as a major question. Only Congress can answer it. This Court should intervene to review the

Ninth Circuit’s misguided response before it disrupts

vast swaths of the U.S. economy.

II.

THIS COURT’S INTERVENTION IS CRUCIAL

BECAUSE THE DOJ LACKS BOTH THE AUTHORITY AND THE ABILITY TO CREATE AN INTERNET-ACCESSIBILITY RULE.

Perhaps the best evidence of the sheer magnitude and complexity of any attempt to regulate Internet-website accessibility is the DOJ’s inability to

craft a workable rule—or, indeed, any rule—that

does so. DOJ concedes that “a clear requirement” informing covered entities of “what is required under

the ADA” to make websites accessible “does not exist.” 75 Fed. Reg. at 43,464. And while it has issued a

cascade of contradictory statements on whether (and

how far) Title III’s accessibility requirements apply

to Internet websites, DOJ has never issued a rule

applying the ADA to Internet websites. Nor can it.

DOJ’s inability to come up with a rule is hardly surprising. Congress designed the ADA for the

material world—buildings, parks, stations, 12 U.S.C.

§ 12181(7)—and it does not translate neatly from

physical space to cyberspace. To begin with, the web

does not lend itself to regularization. Maintaining

web accessibility is not like adding ramps or checking sink heights. “Whether a door provides 32 [inches] clear width is an objectively verifiable fact.”

Comments of U.S. Chamber of Commerce, Proposed

Rulemaking, Dkt No. 110 RIN 1190-AA61 (Jan. 24,

2011). “By contrast, many Web accessibility criteria”—whether, for example, a “text alternative” to an

15

image “is appropriately descriptive”—“have an inherent degree of subjectivity.” Ibid.

Web accessibility is also inherently complex.

Consider the obstacles faced by a company like

AT&T:

AT&T’s Web sites contain, among other

things, content developed and controlled by AT&T, content provided by

others not controlled by AT&T, and embedded functions, such as media players, which may or may not be in AT&T’s

power to alter. Accessibility, by its nature, must be addressed at every phase

of production, by different parts of

AT&T responsible for those functions—

from concept to design to content to

code development to deployment and,

thereafter, to updates.

Comments of AT&T Inc., Proposed Rulemaking, Dkt

No. 110 RIN 1190-AA61 (Mar. 8, 2011).

At any given time “there is no viable technique for making certain [web] content accessible.”

Comments of eBay Inc., Proposed Rulemaking, Dkt

No. 110 RIN 1190-AA61 (Jan. 24, 2011). Because

“assistive technology support” tends to “lag behind

the emergence of new technology,” an “alternative

format” of a website will not—cannot—always “offer

all the ‘bells and whistles’ of the original page.”

Comments of Nat’l Rest. Assoc. and Retail Indus.

Leaders Assoc., Proposed Rulemaking, Dkt No. 110

RIN 1190-AA61 (Jan. 24, 2011).

16

Congress enacted the ADA to provide “clear,

strong, consistent, enforceable standards addressing

discrimination against individuals with disabilities.”

42 U.S.C. § 12101(b)(2). Yet the subjectivity of what

qualifies as “access” in cyberspace, the complexity of

website design, and the ever-shifting technology of

the electronic world are, and always will be, major

obstacles to web accessibility. Someone must, then,

make the tough and even arbitrary choices about

what counts as “accessibility” online.

In a 2010 Advance Notice of Proposed Rulemaking, DOJ’s Civil Rights Division volunteered itself for this role. See Dep’t. of Justice, Nondiscrimination on the Basis of Disability; Accessibility of Web

Information and Services of State and Local Government Entities and Public Accommodations, 75

Fed. Reg. 43,460-01 (July 26, 2010). So far as DOJ

was concerned, Congress need take no part in the

drafting of ADA 2.0.

Without the slightest guidance from Congress,

DOJ began asking the hard questions and even—

with all the clarity of a Magic 8-Ball—trying to answer them. Should Title III require a website to ensure the accessibility of a third-party payment vendor that it neither operates nor controls? DOJ says:

Most likely, yes. Id. at 43,465. Should Title III require a website to ensure the accessibility of an informal online marketplace? DOJ says: Very doubtful.

Ibid. Should Title III require a website to ensure the

accessibility of its patrons’ personal videos or photos?

DOJ says: Reply hazy, try again. Ibid.

In other words, DOJ’s Civil Rights Division offered vague guidance it was ill-equipped to provide

17

in response to questions Congress never authorized

it to ask. “This confirms that the authority claimed

by the Attorney General is both beyond his expertise

and incongruous with the statutory purposes and

design.” Gonzales, 546 U.S. at 267. Cf. King, 135 S.

Ct. at 2489 (“It is especially unlikely that Congress

would have delegated this decision to the IRS, which

has no expertise in crafting health insurance policy

of this sort.”).

Seven years later, DOJ threw up its hands

and withdrew the ANPRM, advising parties not to

treat it as “the Department of Justice’s position on

these issues.” Dep’t. of Justice, Nondiscrimination on

the Basis of Disability; Notice of Withdrawal of Four

Previously Announced Rulemaking Actions, 82 Fed.

Reg. 60,932, 60,933 (Dec. 26, 2017). This fumbling

around—for the better part of a decade!—is revealing, yet unsurprising. It is simply what happens

when an agency chooses to act without guidance (or

authority) from the legislature.

Of course, DOJ has zero authority to draft

what amounts to a whole new law. This is, rather,

one of those times when an agency “choose[s] their

policy first and then later seek[s] to defend its legality.” David S. Tatel, The Administrative Process and

the Rule of Environmental Law, 34 Harv. Envtl. L.

Rev. 1, 2 (2010). But if DOJ cannot write its own

web-accessibility law from scratch, still less so may

the courts.

18

III.

ONLY THIS COURT CAN STOP JUDGES AND

JURIES FROM REWRITING THE ADA AND EXCEEDING THEIR PROPER ROLE.

If a court may draft its own sweeping regulations without regard to the legislature or the statutory text, it becomes a vehicle for overseeing public

policy. That is not a role any court should embrace.

Yet without this Court’s review, the lower courts will

go on essentially rewriting the ADA on an ad hoc basis.

The “U.S. Constitution explicitly disconnects

federal judges from the legislative power and, in doing so, undercuts any judicial claim to derivative

lawmaking authority.” John F. Manning, Textualism

and the Equity of the Statute, 101 Colum. L. Rev. 1,

59 (Jan. 2001). This “sharp separation of legislative

and judicial powers was designed, in large measure,

to limit judicial discretion—and thus to promote

governance according to known and established

laws.” Id. at 61.

When the political branches are presented

with a societal problem, they can collect data, study

incentives, consider diverse viewpoints, and then

craft a balanced solution. In crafting the ADA, for

example, Congress carefully struck “a balance between guaranteeing access to individuals with disabilities and recognizing the legitimate cost concerns

of businesses and other private entities.” Preamble to

Regulation on Nondiscrimination on the Basis of

Disability by Public Accommodations and in Commercial Facilities (July 26, 1991), reprinted in 28

C.F.R. Pt. 36, App. B, at 645 (1997). That is why, for

19

example, Congress “establish[ed] different standards

for existing facilities and new construction.” Ibid.

By contrast, when a court (or a jury) is presented with a societal problem, it can do no more

than hear from a few witnesses, maybe a few experts, and a few lawyers—then impose remedies limited to the parties in the lawsuit. Litigation, with its

inherent limitations (and frightful expense), is no

way to go about crafting major public policy.

Disturbing as it may be for the Executive to

seize the power to legislate, at least DOJ can be expected (if it ever gets its act together) to create just

one set of spurious rules. But if the courts continue

trying to draft web-accessibility standards, they will

add the vice of inconsistency to the evil of illegitimacy. Compare Nat’l Assoc. of the Deaf v. Netflix, 869 F.

Supp. 2d 196 (D. Mass. 2012) (Netflix’s streaming

service is subject to Title III), with Cullen v. Netflix,

880 F. Supp. 2d 1017 (N.D. Cal. 2012) (not so fast).

Nor are the courts any better equipped than

DOJ to draw fine policy lines. Consider, for example,

how hard it can be to distinguish a website’s “inventory” from its “interface.” Title III “does not require a

public accommodation to alter its inventory to include accessible or special goods that are designed

for, or facilitate use by, individuals with disabilities.”

28 C.F.R. § 36.307(a). In short, “the content of the

goods or services offered by a place of public accommodation is not regulated.” Doe v. Mut. of Omaha

Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999).

So while “a camera store may not refuse to sell

cameras to a disabled person,” it “is not required to

20

stock cameras specially designed for such persons.”

Ibid. This conclusion finds support in the ADA’s silence about how a company would adjust its inventory to accommodate the disabled. “Had Congress purposed to impose so enormous a burden on the retail

sector of the economy and so vast a supervisory responsibility on the federal courts,” it surely “would

have made its intention clearer and could at least

have imposed some standards.” Ibid. It did not, and

the judiciary is neither equipped nor authorized to

press ahead anyway, “making standardless decisions

about the composition of retail inventories.” Ibid.

Yet the online distinction between access to a

product or service, on the one hand, and the product

or service itself, on the other, is often “illusory.” Carparts Dist. Ctr., Inc. v. Auto. Wholesaler’s Assoc. of

New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994). For

many websites, “access” is “inventory.” The whole

point of many websites is to offer a unique aural or

visual experience. That experience is often irreducible and untranslatable. Just as “it is hardly a feasible judicial function to decide whether shoestores

should sell single shoes to one-legged persons and if

so at what price,” Mut. of Omaha, 179 F.3d at 560, so

it is “hardly a feasible judicial function” to decide

how Facebook must modify the protean array of photo collages, ad videos, comments, and “like” reactions

in a blind person’s News Feed.

Courts applying Title III to the Internet have

tended to duck this problem. How to comply with Title III is, they say, a matter not of liability but of

remedy. It is, they say, a matter for the end of a case,

not the beginning. But when a district court rejects a

defendant’s attempt to cut an ADA lawsuit off at the

21

early stage, settlement becomes all but inevitable. It

is, in fact, often the very next event in the case. See,

e.g., Rios v. N.Y. & Co., Inc., 2:17-cv-4676 (C.D. Cal.

2017) (order denying motion for judgment on the

pleadings at Dkt #27; notice of settlement at Dkt

#28); Reed v. CVS Pharm., 2:17-cv-3877 (C.D. Cal.

2017) (order denying motion to dismiss at Dkt #27;

notice of settlement at Dkt #28); Robles v. Yum!

Brands, Inc., No. 2:16-cv-8211 (C.D. Cal. 2018) (order denying motion for summary judgment at Dkt

#57; notice of settlement at Dkt #62). Leaving standard-setting for the remedy stage may be convenient

for courts, but it leaves businesses in an impossible

bind.

A court that creates a radical new regulatory

rule to address a nationwide problem acts in defiance of many blind spots. “The omnipresence of unintended consequences” of public policy “can be attributed, in large part, to the absence of relevant information.” Cass R. Sunstein, The Cost-Benefit Revolution 79 (2018). Yet “the decisions that follow adjudication, involving a small number of parties,” often

“turn out to be inadequately informed.” Id. at 86.

This lawsuit proves the point. In contrast, the political branches are better able to “collect dispersed

knowledge” and “bring it to bear on official choices.”

Id. at 88.

Even if the federal courts could somehow craft

a serviceable approach to addressing the problem of

Internet accessibility for disabled Americans, that

would not justify such drastic judicial action. “Judicial amendment flatly contradicts democratic selfgovernance.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 96

22

(2012). There is no authority permitting judges to

transform the ADA into a tool for setting public policy of the highest order. That would be a “serious invasion of the legislative domain.” United States v.

Nat’l Treasury Emps. Union, 513 U.S. 454, 479 n.26

(1995).

What’s more, it is “impossible for a court—

even one that knows each legislator’s complete table

of preferences—to say what the whole body would

have done with a proposal it did not consider in fact.”

Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi.

L. Rev. 533, 547-48 (1983). Such “judicial predictions

of how the legislature would have decided issues it

did not in fact decide are bound to be little more than

wild guesses.” Id. at 548.

Without this Court’s review, such wild guesses

will only continue to multiply.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

July 15, 2019

CORY L. ANDREWS

Counsel of Record

CORBIN K. BARTHOLD

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org