So, I will say that you don't
need to repeat arguments

related to Weyer unless they're
different because we are

well aware of the issue on 
the Title 3.

Yes, your Honor.
May it please the court,

Jack Fitzgerald on behalf of Donald Cullen
and I would like to address Weyer

but we do have a different take 
and different arguments on it

than were presented.
I think that Cullen prevails in this appeal,

including, as against Weyer, under a 
three step analysis.

First, the statute is either ambiguous
or it leaves a gap for the agency to fill,

as required under Chevron.

Second, the DOJ's interpretation,
at least one of the interpretations

we have talked about in the briefing
is entitled to Chevron deference.

Meaning, it meets the standard set forth 
in US vs. Meade and its projeny.

And third, under Brand X, 
that interpretation trumps Weyer

because Weyer did not find,
did not construe the statute

and say that it was an unambiguous
statute and this is the plain meaning.

Weyer rather resorted to a canon
of construction, noscitur a sociis

(chuckles)
I hope I'm pronouncing that right.

That is used to resolve ambiguous
or unclear language.

So on the first point,
I think this actually,

whether the statute is ambiguous,
I think this action is one of

the major disagreements in the briefing.
And maybe one of the points to crystallize.

But, there are at least three points
that show that it's ambiguous.

First, in the DOJ's rule making
in 2010 it noted

that clarification was needed, 
or at least noted comments it received

that clarification was needed 
because of the current ambiguity

caused by court decisions
as to whether Web-only businesses

are covered under Title III
and that's 75 FR 43464.

Second, there indeed is a circuit split.
We've got four circuits

on either side of the aisle
and different strengths.

(Panel)
But, if circuit split isn't enough

for us to depart from wire as a 
panel is it?

(Fitzgerald)
No...The argument is that

the circuit split indicates that
there is ambiguity in the statute.

That's the only argument
I'm making.

Not that the circuit split
overrules the wire.

(Panel)
Let's assume there is ambiguity in the statute

Where is the statement that deserves
Chevron deference?

(Fitzgerald)
The statement that deserves

Chevron deference is 28CFR
section 36, Appendix A. And...

(Panel)
What statement in there?

(Fitzgerald)
It's the statement, that

It's actually, there's quite a long
paragraph on it.

I won't read the whole thing.
But, it's in our addendum

at pages 40-41 and there's
a comment on website accessibility

that talks about how the DOJ
has consistently interpreted

this over time.

(Panel)
But not in any regulation

to which we owe Chevron
deference, right?

That's true, they've interpreted
this way. But, in briefs

and other things under Meade
we wouldn't give deference to?

(Fitzgerald)
That's true.

Not until the DOJ put it in this 
regulation. Granted, this is an appendix.

And it sort of commentary on the
rules and principles.

But, I point the Court to the decision 
in Gilstrap v. United Airlines

Where, the question was whether
a woman who had repaired knees

had to be given a wheelchair in
an airport terminal to...and she had sued

United Airlines.
And, the court found, in that case

the statute wasn't ambiguous
because there was a regulation or

there was a specific exception for
airline carriers at airport terminals.

So, it said, that it wasn't ambiguous.
The plain language was clear,

and we decide that Title 3
doesn't cover it.

But, our interpretation is
confirmed by regulation.

And it referred to the DOJ's comments
in an appendix to the same thing.

(Panel)
Right, but that really goes to the point.

We see that a lot, where the
interpretation is made by the Court.

And then, they might make reference.
But, that doesn't mean there is some sort

of deference, either Skidmore or Chevron.
Does it?

(Fitzgerald mumbles)
(Panel) Your point is that

they called the appendix a regulation,
so that means we need to treat

the appendix as a regulation?

(Fitzgerald)
The appendix is part of the regulation.

(Panel)
But the appendix wasn't passed through

notice and comment and procedures 
the way the regulation itself was.

Right? So it seems like maybe our court
made a misstatement with vocabulary

That doesn't mean all of the sudden
this thing is a regulation.

(Fitzgerald)
Well, your Honor, I respectfully disagree.

I think if it's codified there
the same way the advisory committee

notes to the federal rules are
relied on and are considered

authoritative on Federal rules.
I believe Gilstrap shows and, in fact,

twice it called it a regulation
and not commentary or guidance

They called it a regulation.

(Panel) What the label is, is not so important,

as to what it is and how did it get there.
Would you agree?

(Fitzgerald) That's fair. 
So I would like to turn to Meade.

Really, the question is,
is it entitled to deference under Meade?

So what Meade says is that you
have to have two criteria.

First, Congress has to have delegated
authority to the agency. We know that they did.

That's 44 USC 12186B.

Second, the agency interpretation claiming
deference has to be promulgated in the exercise of that.

That doesn't actually say that it
has to be a regulation.

It just has to be promulgated in its authority.
Meaning, no [mumbled] rulemaking.

Indeed, these comments were part of
a two step note of proposed

notice of rule making.
And then, a final rule.

It was codified.

(Panel) Okay, so even if we give you that.
Say, we think this is a regulation,

and something that deserves deference.
Isn't it still the case that what it says

is that a public accomodation's website
and so we still have this issue that

what it means is an actual physical bank that runs a website?

As opposed to an entity that is just a website?

(Fitzgerald) I think the comments are broader than that.
In fact, it refers to some of its previous

comments to incorporate some
of its statements over time.

Certainly, as you mentioned, the statement
of interest, the comments

may be persuasive.

(Panel interrupts inaudibly)

I understand
they aren't entitled to Chevron deference.

But those are persuasive and I think
the commentary here is broad enough

that it doesn't mean that it's just
the websites of physical places.

(Panel) How do we know that reading it? 
At least, it's ambiguous in what it means.

If it's ambiguous, how can we say
that it's clearly reconciable with Weyer?

(Fitzgerald) Your Honor, I don't think it's ambiguous.
If it's ambiguous, that's probably a problem.

I think if it's ambiguous, one thing the
court could do is say,

well in Weyer, we interpreted a certain
way. We found the statute was ambiguous.

We interpreted it a certain way.
We didn't find it was plain clear.

So now we have an ambiguous statute.
Since Weyer we have had a lot

of commentary from the DOJ.

(Panel) And we now have an ambiguous 
commentary and therefore, what do we do?

(Fitzgerald) That commentary is at least 
persausive under Skidmore.

Granted, that doesn't necessarily
allow this court to overrule Weyer

on this panel, because it's persausive.
But, I think an opinion saying that,

today, persuaded by the DOJ's commentary,
we might find differently.

That gives us a chance to bring it up
for review and let the panel face it.

(Panel) That's why even if you're going to
lose you would rather have the merit

that say that you waived it. 
Because we have this issue of if you waived.

(Fitzgerald) You know, we responded to that.
I'm happy to address that.

(Panel) Could you address it?
I'm trying to figure out why you omitted

your state law discrimination claims
from your third ammended complaint.

(Fitzgerald) We, the Court found, that it was bound
by wire. There was only one operate affect.

That was that Netflix is a website.
We couldn't have ammended the complaint.

Couldn't have planted additional facts
that would have allowed us to state a claim,

under the current state of law.

That was really clear. 
If you look at the district court's opinion,

everything it dismissed us against,
granted without prejudice,

exempt for that section where
it says bound by wire.

(Panel) But you made some expressed
statements that you voluntarily

abandoned those claims and
that Netflix...

(Fitzgerald) Your Honor, that statment was
in application to opposition of

Netflix's application which was
filed a month after this appeal.

But, that only had to do with ADA
independent state law claims

under the DPA. 
It wasn't a statement about the Unruh Act.

It wasn't a statement about the 
ADA independent claims.

(Panel) The court had already said you
couldn't ammend the DPA claim

based on the ADA.
So the only thing you abadoned

was the DPA claims based on
something else.

(Fitzgerald) Right. And that's because 
we got similar rulings.

I think it was the same court,
the intentional discrimination.

We had to show a higher standard.
We didn't feel we could do that

under Rule 11. 
So we elected not to pursue

the ADA independent claims.
Clearly, the ADA claims have been

dismissed as a matter of law.
There was nothing we could do.

(Panel) I think my question earlier was confused.
So your ADA claim where you have to get

around wire and want to seek
review. That is preserved.

The only issue is whether the
DPA claim is preserved or not.

That one is also based on the ADA.
Do you need both or....[mumbles]?

(Fitzgerald) Actually, we did not pursue an ADA 
claim on principle. We only did it under DPA.

(Panel) So you do really need this?
You need to not have waived this DPA claim.

(Fitzgerald)
At least the ADA dependent DPA claim.

(Panel) 
Why did you not pursue an ADA claim directly?

(Fitzgerald) Because the NAD came to 
us and said that the law is better

in the first circuit, will you
please drop your ADA claim

so that we aren't subject to wire.
I'm glad they did because look at the result.

I just want to finish on the final point
that under Brand X, because if you

find that the statute is ambiguous
and you find that at least this

regulation is entitled to chevron 
deference then under Brand X

that supercedes wire. That's entirely fair.
Thank you very much.

(Panel) Thank you.

Good morning, may it please the court.
David McDowell on behalf of Netflix.

I'm not going to go back through
the argument that was made

by Ebay. He's right, they walked
through the various steps

this court needed to do and did
in where and the question of

Chevron deference.
I think the real question that

is left here is whether the
claim was abandoned.

Certainly the ADA claim 
was abandoned.

They walked away from it.
They made a choice.

(Panel) Well, they lost it on the merit.
The district court said as a matter

of law the DPA claim based on the
ADA is foreclosed by wire.

That section does not say that you can
ammend all the other sections.

Are you actually saying they could
have tried again to plead the claim

based on the ADA at that point?

(McDowell) No at that claim, that sole claim.
Not that there is anything DPA broader than the ADA.

Those claims were waived
and walked away from.

I do think that it's absolutely right.
I can't dispute that the court did say

the DPA claim based on a 
violation of the ADA.

(Panel) And so why isn't that a final 
decision on the merits of that claim that

was dismissed with prejudice and is
therefore done is preserved for repeal.

(McDowell) That question is preserved.
It's the other question that was also

throughout the papers of the 
broader DPA independence.

(Panel) So you're really just arguing
that they can't try to have a

DPA claim based on other state 
laws, the Unruh act, or something else.

That seems very clear.
So if that's all you are arguing...

I didn't understand that from
your brief.

(McDowell) I apologize for that.
It was because it was unclear to us

what claims were 
being asserted.

(Panel) What they are left with is
a DPA claim hinged on Title 3.

(McDowell) Yes.

(Panel) We all agree that is here
on the deal.

But then, there are some
hurdles which may or may

not be able to overcome 
because of Weyer.

Is that the sum of
what we have?

(McDowell) That's absolutely correct.

(Panel) So in your view we should
write something now that says

they have this claim of the DPA
based on the ADA but it's

foreclosed by wire. We can
write a paragraph in this case.

That's what we should do?

(McDowell) That's what you should do.
If there are any other questions,

I'm happy to address them,
but the issues have been covered well.

(Panel) Alright. (To Fitzgerald) I would 
give you some rebuttal time, but

I don't think there is much to
rebutt. I will give you a minute

if you feel like there is something
additional you need to tell us.

(Fitzgerald)
I appreciate that but I don't think so.

(Panel) Alright, thank you. Thank you
both for your argument this morning.

Cullen v. Netflix is submitted.