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.