Seyfarth Synopsis: Due process, DOJ’s failure to enact regulations, and whether the ADA covers websites arguments dominated the recent Domino’s Ninth Circuit oral argument.
In the increasing morass of varying state and federal district court opinions in website accessibility cases, we will soon have two additional federal appellate decisions to provide more guidance of precedential value to federal trial courts. Most recently, on October 12, the Ninth Circuit heard the parties’ oral arguments in Robles v. Domino’s Pizza. On October 4, the Eleventh Circuit heard oral argument in Gil v. Winn-Dixie. We attended the Robles argument.
Sitting on the Domino’s Ninth Circuit panel were Ninth Circuit Judges Watford and Owens, and Arizona District Court Judge Zipps. Judges Watford and Owens actively questioned all parties while Judge Zipps only listened. The judges seemed to be leaning in Robles’ favor, expressing skepticism at many of Domino’s arguments, especially with respect to the main issue on appeal: Whether the court can apply the ADA to websites of public accommodations without regulatory guidance from the Department of Justice (DOJ). Below is a summary of the key arguments and judges’ comments:
Primary Jurisdiction/Due Process. The main issue on appeal is whether U.S. District Judge Otero erred in granting Domino’s motion to dismiss the case on primary jurisdiction and due process grounds. Robles argued that the lack of specific website accessibility regulations does not eliminate the statutory obligation to comply with the ADA, and that Domino’s is not exempted from the ADA and its implementing regulations because DOJ was working on such regulations at one time. Robles pointed out that DOJ has terminated the rulemaking process since the District Court ruled. Robles stated that the court does not need the DOJ to rule on this issue – in fact, that the DOJ said in a recent letter (to Congressman Ted Budd) mentioning this very case that it was not going to act.
Frustration with DOJ’ s Inaction. Not surprisingly, the DOJ continued to come up numerous times during the Domino’s argument. Judge Watford stated that all “agree it’s a highly undesirable state for the law to be in” and “it’s DOJ that’s mainly at fault – it should have happened a long time ago.” Domino’s asked whether the Court could certify the question for the DOJ to answer. Judge Watford did not believe any mechanism to do so existed. Judge Owens interjected that the DOJ could have intervened, but did not. “This shows the problem with your primary jurisdiction argument. It’s like a Samuel Beckett play – we’re just waiting and it’s not going to happen.” Isn’t that an inherent due process problem, Domino’s asked? “The court’s job is to interpret the law as best it can.” If the Supreme Court doesn’t like it, it doesn’t like it.
Coverage of Websites by the ADA. The question of whether the ADA covers websites also came up at several points. Domino’s took the position that the ADA covers the communication on websites, but not the websites themselves – a position that Judge Owens said was contrary to what Domino’s said in District Court. Judge Watford pointed out that the DOJ has said the ADA covers websites on numerous occasions. In response, Domino’s said the DOJ’s latest position on this topic was a footnote in the U.S. Solicitor General’s brief filed in the McGee v. Coca Cola case which did not involve a website. The footnote simply noted district courts have grappled with the question of whether the ADA applies to goods and services offered over the Internet. Judge Watford said if that footnote is “all you’ve got, you’re on extremely shaky ground… you don’t have much to stand on there.”
What is an accessible website? Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG). To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.” He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.
Judge Watford disagreed, “I don’t think it’s as dire as you painted”. The Judge added, skeptically, “You want us to just throw our hands up and say this is just impossible, there’s no way to figure this out. I don’t think that’s correct.” Judge Watford noted any particulars as to what businesses need to do to have an accessible website can be worked out in the remedy stage. At various points, counsel for Robles and the National Federation of the Blind (NFB), as Amicus, as well as Judge Owens, remarked that the lower court had not decided whether Domino’s website was required to be, and was or was not, accessible – let alone by what standard accessibility should be measured. Thus, those issues were not before this Court. Judge Watford asked, since it appears the WCAG is the “only game in town”, “how could compliance with anything else render a website’s content accessible to people with vision disabilities”? (Note that in its oral argument, Winn-Dixie, appealing the district court’s order that the grocer conform its website to the WCAG, argued that such an order constituted “legislating from the bench”, which denies businesses due process.)
Telephonic Access. At one point, Domino’s counsel stated that that people who could not use the website could call a 1-800 number. Judge Watford reminded him that banner displaying the number was not on the Domino’s website at the time Robles attempted to access it. The Judge did not say that the phone number could not provide a lawful alternative to access but said “we can debate whether that would be adequate.” Amicus Counsel for the NFB expressed skepticism about whether the phone could ever be an adequate substitute, and argued that this was an issue of fact.
The Ninth Circuit will likely issue its order in the next three to twelve months.
Edited by Minh N. Vu.