Bypassing Procedure: Should DOJ Promulgate Website Regulations Through Litigation?
Instead of following the requirements of the Administrative Procedure Act (APA), DOJ has chosen to regulate through litigation by filing Statements of Interest in American’s with Disabilities Act (ADA) website accessibility lawsuits across the country. In its Statements of Interest, DOJ claims that the ADA governs websites, not because the statute explicitly so provides, nor because DOJ has amended the ADA regulations to cover websites, but because DOJ has deemed it so as its litigative posture. DOJ has failed to adopt standards setting forth the requirements for website accessibility, leaving businesses to guess at what is required to meet DOJ’s mandate. Instead, DOJ demands that covered entities comply with the Web Content Accessibility Guidelines 2.0, Success Criteria AA (“WCAG 2.0 AA”), a set of evolving guidelines created by a private non-governmental consortium without any notice and comment procedure and without meeting other requirements to which government regulations are subject.
DOJ’s disregard for the regulatory process has led to a deluge of private ADA website lawsuits, resulting in a patchwork of judicial opinions imposing conflicting directives on businesses. The circuit courts are split on whether the ADA covers websites and, if so, to what extent. A business’s website, therefore, may be subject to the ADA in some jurisdictions in which it operates, but not in others. And courts that have determined that the ADA applies to websites have imposed different standards for compliance because there are no enforceable website accessibility standards that have been properly promulgated by DOJ.
The lower court declined to give deference to DOJ’s litigation position that websites are required to satisfy WCAG 2.0 AA because DOJ has not amended its Title III regulations pursuant to the APA’s notice and comment provisions to encompass websites or to include website accessibility standards. The current disjointed approach to website accessibility creates uncertainty and unduly burdens businesses. It subjects businesses who operate a single website to competing requirements depending on where it is sued. It also compels businesses to expend an inordinate amount of resources in an attempt to meet ever-changing guidance, without any assurance that compliance efforts will be sufficient.
Free Enterprise, Limited Government
Robles v. Domino’s Pizza, LLC, No. 17-55504 (Court of Appeals for the Ninth Circuit)
Read the Amicus Brief:
Is the DOJ’s promulgation of ADA regulations for websites through litigation legitimate according to the APA, which requires a notice and comment procedure?
ALF’s Amicus Brief:
In an amicus brief the ALF argues that DOJ’s position is not entitled to deference because its strategy of regulation through litigation is contrary to the requirements of the APA, 5 U.S.C. §553. The Court should not afford deference to DOJ’s regulation through litigation approach. Instead the Court should recognize that Congress did not regulate the internet through the ADA and require DOJ to follow the promulgation procedures outlined in the APA. The procedures outlined by the APA create relative certainty and uniformity compared to the jurisdiction dependent litigative patchwork of regulations that has develop instead.
WCAG 2.0 AA are merely guidelines established by a private, non-governmental group. The DOJ’s mere proposal of WCAG 2.0 AA does not warrant deference. As the lower court aptly noted, this Court has refused to defer to a proposed regulation published by DOJ. See Cal. Rural Legal Assistance v. Legal Services Corp, 917 F.2d 1171, 1173 (9th Cir. 1990) (“declin[ing] to take cognizance” of a proposed regulation because it “does not represent an agency’s considered interpretation of its statute.”). The ALF asks the Court to affirm the lower court’s opinion, and encourage DOJ to promulgate regulations, which have the potential to make everyone in society poorer, such as by triggering the litigation process if a business’ website does not read to the blind (with a 3rd party’s technology), through open and legitimate processes which are subject to debate and criticism.
On January 15, 2019, the Ninth Circuit Court issued an adverse opinion holding that the district court erred in invoking the prudential doctrine of primary jurisdiction, which allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).
Date Originally Posted: December 27, 2017