Magee v. Coca Cola Refreshments Brief as Amicus

 

No. 16-668

In the Supreme Court of the United States

EMMETT MAGEE, PETITIONER

v.

COCA-COLA REFRESHMENTS USA, INC.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

JEFFREY B. WALL
Acting Solicitor General Counsel of Record

T.E.  WHEELER, II
Acting Assistant Attorney General

MALCOLM L. STEWART
Deputy Solicitor General

MORGAN L. GOODSPEED
Assistant to the Solicitor General

TOVAH R. CALDERON

FRANCESCA  L. PROCACCINI
Attorneys
Department of Justice Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a beverage vending machine is a “place of public accommodation” under Title III of the
Americans with Disabilities Act of 1990, 42 U.S.C. 12181 et seq.

(I)

TABLE OF CONTENTS
                                                                                                  Page
Interest of the United States.......................................................  1
Statement ...................................................................................... 1
Discussion ...................................................................................... 5

A. The court of appeals correctly held that the vending machines

at issue here are not “place[s] of public accommodation” under the  ADA.....................................  6

B. The Fifth Circuit’s decision does not conflict with
any decision of another court of appeals....................... 15
Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

A. H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945) ............ 7
Access for the Disabled, Inc. v. First Resort, Inc.,
No. 11-cv-2342, 2012 WL 4479005 (M.D. Fla. Sept. 28, 2012) .................................................. 14
Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) ............................... 22
Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n

of New England, Inc., 37 F.3d 12 (1st Cir. 1994) ..............................5, 17, 18, 20, 21
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)................................................................ 8
Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ..................................................4, 17, 19, 20, 21
Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034 (2012) ........................................................... 8
Morgan v. Joint Admin. Bd., 268 F.3d 456 (7th Cir. 2001)...................................................... 4, 18, 20, 21
National Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) ................................. 22

(III)

IV
Cases—Continued:                                                     Page

National Fed’n of the Blind v. Scribd Inc.,
97 F. Supp. 3d 565 (D. Vt. 2015). ....................................... 22
National Fed’n of the Blind v. Target Corp.,
452 F. Supp. 2d 946 (N.D. Cal. 2006) ................................ 22
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).................... 1
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999),

amended on denial of reh’g by 204 F.3d 392 (2d Cir. 2000) ...................................... 5, 18, 19
Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997), cert. denied,
522 U.S. 1084 (1998)............................................ 4, 19, 20, 21
Perrin v. United States, 444 U.S. 37 (1979).......................... 7
Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279
(11th Cir. 2002).................................................................... 21
Sandifer v. United States Steel Corp.,
134 S. Ct. 870 (2014) ............................................................. 7
Taniguchi v. Kan Pac. Saipan, Ltd.,
132 S. Ct. 1997 (2012) ........................................................... 7
United States v. Williams, 553 U.S. 285 (2008) ................... 8
West v. Five Guys Enters., LLC, No. 15-cv-2845,
2016 WL 482981 (S.D.N.Y. Feb. 5, 2016) ......................... 15
West v. Moe’s Franchisor, LLC, No. 15cv2846,
2015 WL 8484567 (S.D.N.Y. Dec. 9, 2015)........................ 15
Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104 (9th Cir. 2000) ................................... 4, 20, 21
Yates v. United States, 135 S. Ct. 1074 (2015) .................... 11
Young v. Facebook, Inc., 790 F. Supp. 2d 1110
(N.D. Cal. 2011)................................................................... 22

V
Statutes and regulations:                                                           Page

Americans with Disabilities Act of 1990,
42 U.S.C. 12101 et seq........................................................... 1
Tit. I:
42 U.S.C. 12101(b)(1)................................................... 1
Tit.  III...................................................................... passim
42 U.S.C. 12181-12189 ................................................. 2
42 U.S.C. 12181(7) ............................................. 2, 9, 11
42 U.S.C. 12181(7)(A) .................................................. 9
42 U.S.C. 12181(7)(A)-(L) ......................................... 14
42 U.S.C. 12181(7)(B) ............................................ 9, 17
42  U.S.C.  12181(7)(E)....................................... passim
42 U.S.C. 12181(7)(F) ............................................ 9, 15
42 U.S.C. 12181(7)(G) ................................................ 15
42 U.S.C.  12181(7)(K).................................................. 9
42 U.S.C. 12181(10).................................................... 15
42 U.S.C. 12182(a) ......................................... 2, 5, 6, 15
42 U.S.C. 12186(b) ....................................................... 2
28 C.F.R. Pt. 36:
Section 36.104 ................................................ 2, 3, 5, 13, 14
Section 36.304(a).............................................................. 13
Section 36.304(b).............................................................. 13
Section 36.304(b)(4) ......................................................... 13
Section  36.401(d)(1)(ii)(A)............................................... 14
Section 36.404(a)(2)(i)...................................................... 14
App. C ................................................................................. 6
Miscellaneous:
The American Heritage Dictionary of the English Language  (4th ed.
2000)....................................................... 7
Black’s Law Dictionary (10th ed. 2014) ............................... 7

VI
Miscellaneous—Continued:                                                               Page

Dep’t of Justice, 2010 ADA Standards for Accessible Design (Sept. 15, 2010),

https://www.ada.gov/regs2010/2010ADA
standards/2010ADAstandards_prt.pdf  ............................ 13
75 Fed. Reg. 56,319 (Sept. 15, 2010) .................................... 13
Merriam-Webster’s  Collegiate Dictionary
(11th ed. 2005) ....................................................................... 8
The Random House Dictionary of the English
Language  (2d ed. 1987) ........................................................ 8
Leena Rao, Amazon Go Debuts as a New Grocery Store Without Checkout Lines, Fortune
(Dec. 5, 2016), http://fortune.com/2016/12/05/
amazon-go-store/  ................................................................ 10
Kerry Segrave, Vending Machines: An American
Social  History  (2002) ......................................................... 11
2A Norman J. Singer, Sutherland on Statutes and Statutory Construction (4th ed.
1991)................................ 8
Webster’s Third New International Dictionary
(1993)...................................................................................... 8

In the Supreme Court of the United States

No. 16-668

EMMETT MAGEE, PETITIONER

v.

COCA-COLA REFRESHMENTS USA, INC.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED  STATES

This brief is submitted in response to the Court’s order inviting the Acting Solicitor General to
express the views of the United States. In the view of the United States, the petition for a writ
of certiorari should be denied.

STATEMENT

1. The Americans with Disabilities Act of 1990 (ADA or the Act), 42 U.S.C. 12101 et seq.,
established a “comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. 12101(b)(1). “To effectuate its sweeping pur- pose, 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,

(1)

2
Inc. v. Martin, 532 U.S. 661, 675 (2001) (footnotes omitted).
This case concerns the third area, public accommodations. See 42 U.S.C. 12181-12189. Title III of
the ADA provides that “[n]o individual shall be discrimi- nated 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.” 42 U.S.C. 12182(a). The ADA enumerates twelve
categories of “private entities” that “are considered public accommodations for purposes of [the
Act], if the operations of such entities affect commerce.” 42 U.S.C. 12181(7). Those twelve
categories span a wide array of establishments, including hotels, restaurants, movie theaters,
hospitals, banks, museums, bus stations, schools, and gymnasiums. Ibid. The category at issue in
this case encompasses “a bakery, grocery store, clothing store,  hardware  store,  shopping 
center,  or other sales or rental establishment.” 42 U.S.C. 12181(7)(E).
The Act authorizes the Attorney General to issue im- plementing regulations. 42 U.S.C. 12186(b).
Pursuant to that authority, the Department of Justice has defined the term “place of public
accommodation” to include any “facility operated by a private entity whose operations affect
commerce and fall within at least one of” the twelve categories listed in Section 12181(7). 28
C.F.R. 36.104 (capitalization and emphasis omitted). The term “facility,” in turn, is defined as “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,

3
including the site where the building, property, structure, or equipment is located.” Ibid.
(emphasis omitted).
2. Petitioner is an individual who is legally blind. Pet. App. 34a. He alleges that on three
occasions—once at his local hospital and twice at a New Orleans bus station
—he encountered a glass-front vending machine that was owned, operated, or leased by respondent.
Id. at 5a, 35a, 45a-47a. The relevant vending machines are self-service, fully automated machines
that dispense re- spondent’s sodas, juices, energy drinks, and waters. Id. at 31a. Petitioner
alleges that the vending machines are inaccessible to him because they do not offer a non-visual
means of operation or of conveying the beverage options and prices. Id. at 41a-43a.
3. Petitioner filed this action against respondent, alleging violations of Title III of the ADA.
Pet. App. 30a. He contended that respondent’s glass-front vending machines are “place[s] of public
accommodation” under the Act and that individuals who are blind, including petitioner and a
putative class of similarly situated people, have been denied full access to those public accommo-
dations. Id. at 48a-53a. Petitioner sought declaratory and injunctive relief and attorney’s fees.
Id. at 48a, 54a. He did not seek relief from the hospital or the bus station in which he had
encountered the machines. Id. at 34a.
Respondent moved to dismiss the suit for failure to state a claim. Pet. App. 17a. Respondent
argued, and the district court agreed, that respondent’s vending ma- chines are not themselves
“place[s] of public accommodation” under Title III. Id. at 22a-23a. The court stated that vending
machines “must comply with the ADA,” but it concluded that the bus station where petitioner

4
had encountered the machines, not respondent, was the responsible party. Ibid.
4. The court of appeals affirmed. Pet. App. 16a. The court rejected petitioner’s argument that
respondent’s vending machines are “sales * * * establishments” under 42 U.S.C. 12181(7)(E). Pet.
App. 8a-15a. The court explained that, although the ADA does not define the term “sales
establishment,” that catch-all category “follow[s] a list of retailers occupying physical
stores.” Id. at 10a. Applying the interpretive canons of ejusdem generis and noscitur a sociis, the
court concluded that vending machines are not “sales establishments” be- cause they are “not akin
to any of the listed examples.” Id. at 10a-11a. Rather, the court stated, “vending machines are
essentially always found inside those entities along with the other goods and services that they
provide.” Id. at 11a.
The court of appeals further observed that a “sales establishment” is not simply a business but is
also “the physical space that it occupies.” Pet. App. 11a. The Fifth Circuit believed that it had
aligned itself with the Third, Sixth, and Ninth Circuits in concluding that Title III applies only
to “actual, physical places where goods or services are open to the public.” Id. at 10a (quoting
Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000)); see also id. at
10a &
n.21 (citing Ford v. Schering-Plough Corp., 145 F.3d 601, 613-614 (3d Cir. 1998), and Parker v.
Metropolitan Life Ins. Co., 121 F.3d 1006, 1114 (6th Cir. 1997), cert. denied, 522 U.S. 1084
(1998)). The court noted, however, that the First, Second, and Seventh Circuits “have interpreted
the term ‘public accommodation’ to extend beyond physical places.” Id. at 11a n.23 (citing Morgan
v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001);

5
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 31-33 (2d Cir. 1999), amended on denial of reh’g
by 204 F.3d 392 (2d Cir. 2000); Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n
of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994)).
The court of appeals declined to consider whether a vending machine is a “facilit[y]” within the
meaning of the Department of Justice regulations that implement the ADA. Pet. App. 13a; see 28
C.F.R. 36.104. The court also “acknowledge[d] the limits of [its] holding,” agreeing with the
district court that the vending machines at issue “may very well be subject to various re-
quirements under the ADA by virtue of their being located in a hospital or a bus station, both of
which are indisputably places of public accommodation.” Pet. App. 16a. The court explained,
however, that petitioner had “sued only [respondent], an entity that does not own, lease (or lease
to), or operate a place of public accommodation,” as the court had construed that term. Ibid.

DISCUSSION

This case does not warrant the Court’s review. The court of appeals correctly held that the
beverage vend- ing machines at issue are not “place[s] of public accommodation” under Title III
of the ADA. 42 U.S.C. 12182(a). Beverage vending machines are not generally perceived as discrete
businesses, and they lack the other hallmarks of the statutorily enumerated “sales or rental
establishment[s].” 42 U.S.C. 12181(7)(E). Instead, as the court below explained, the public
accommodation in which a vending machine is located bears responsibility for ensuring the machine’s
accessibility in accordance with the ADA.

6
The Fifth Circuit is the only court of appeals that has addressed whether a vending machine is a
“place of public accommodation” under Title III. Although the Fifth Circuit believed that its
decision implicated an existing circuit split, the decisions that the court below cited addressed
the application of the ADA to a fundamentally different type of transaction. And no court,
including the Fifth Circuit, has adopted the physical entry rule described in petitioner’s
question presented (Pet. I). The petition for a writ of certiorari should be denied.

A. The Court Of Appeals Correctly Held That The Vending Machines At Issue Here Are Not “Place[s] Of
Public Accommodation” Under The ADA

Title III forbids discrimination “on the basis of disa- bility in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of any place of
public accommodation.” 42 U.S.C. 12182(a). The Act identifies, as one type of “public ac-
commodation,” “a bakery, grocery store, clothing store, hardware store, shopping center, or other
sales or rental establishment.” 42 U.S.C. 12181(7)(E).1 Although respondent’s beverage vending
machines are not bakeries, grocery stores, clothing stores, hardware stores, or shopping centers,
petitioner contends (Pet. 10) that the machines fall into the catch-all category of “other sales or
rental establishment[s].” 42 U.S.C. 12181(7)(E). The court of appeals correctly rejected that
contention.

1 To constitute a public accommodation under Title III, an entity

must also be open to the public. See 28 C.F.R. Pt. 36, App. C. As a result, sales establishments
are not public accommodations if they sell exclusively to other businesses, rather than to
individuals. Ibid.

7
1. a. The ADA does not define the term “sales or rental establishment.” Petitioner contends that a
vend- ing machine is a sales establishment because it “is a ‘place of business’ where people
‘transfer * * * property or title for a price.’” Pet. 10 (alteration in original) (quoting
Black’s Law Dictionary 664, 1537 (10th ed. 2014)). Respondent’s vending machines, which offer goods
in exchange for money, arguably fall within the outer bounds of that definition—as do gumball ma-
chines, newspaper stands, or other coin-operated pieces of equipment. But the “ordinary,
contemporary, com- mon meaning” of the term “sales establishment” is not so sweeping. Sandifer v.
United States Steel  Corp., 134 S. Ct. 870, 876 (2014) (quoting Perrin v. United States, 444 U.S.
37, 42 (1979)). In particular, the word “establishment” suggests a substantial, standalone place of
business. See A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945) (construing “establishment”
to mean “a distinct physical place of business,” such as a retail store or a wholesale warehouse).
That is why an ordinary English speaker who purchases a soda from a vending machine would not
typically describe the act as a quick visit to a sales establishment. See Taniguchi v. Kan Pac.
Saipan, Ltd., 132 S. Ct. 1997, 2003 (2012) (“That a definition is broad enough to encompass one
sense of a word does not establish that the word is ordinarily understood in that sense.”).
Dictionary definitions of the word “establishment” likewise emphasize the various accoutrements of
a busi- ness, not its bare ability to facilitate a commercial transaction. Pet. App. 11a-12a;
see, e.g., The American Heritage Dictionary of the English Language 609 (4th ed. 2000) (“[a]
place of residence or business with its pos-

8
sessions and staff”); Merriam-Webster’s Collegiate Dic- tionary 427 (11th ed. 2005) (“a place of
business or res- idence with its furnishings and staff”); The Random House Dictionary of the
English Language 663 (2d ed. 1987) (“a place of business together with its employees, merchandise,
equipment, etc.”); Webster’s Third New International Dictionary 778 (1993) (“a more or less fixed
and usu[ally] sizable place of business or residence together with all the things that are an
essential part of it (as grounds, furniture, fixtures, retinue, employees)”). Those definitions,
like the ordinary English speaker’s intuition, suggest that a beverage vending machine is not a
“sales establishment” because it has no employ- ees, furnishings, or other commercial trappings.
The canons of ejusdem generis and noscitur a sociis reinforce that conclusion. The  open-ended
category of  “other sales or rental establishment[s]” appears  at the end of a list of enumerated
examples. 42 U.S.C. 12181(7)(E). When a broad catch-all phrase follows a list of specific examples,
the ejusdem generis canon teaches that “the general words are construed to em- brace only objects
similar in nature to those objects enumerated by the preceding specific words.” Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (quoting 2A Norman J. Singer, Sutherland on
Statutes and Statutory Construction § 47.17, at 166 (4th ed. 1991)). The related canon of noscitur
a sociis similarly “counsels that a word is given more precise content by the neighboring words
with which it is associated.” Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012) (quoting
United States v. Williams, 553 U.S. 285,
294 (2008)).
Section 12181(7)(E) lists five specific examples of a “sales or rental establishment”: “a bakery,
grocery store,

9
clothing store, hardware store, [and] shopping center.” 42 U.S.C. 12181(7)(E). Those are all retail
businesses that (1) sell goods to the public; (2) have a discrete, standalone location or identity;
and (3) are typically operated by an on-site proprietor or employees. A bakery, for example,
sells bread and muffins from a physical lo- cation that visitors would identify as a bakery; the
pro- prietor or employees perform the sales and assist customers. The other enumerated stores are
similar, while a shopping center covers a grouping of several such stores into a single physical
space. Most of the other types of establishments listed elsewhere in Section 12181(7) also tend to
share the second two characteristics outlined above. Inns, hotels, restaurants, bars, banks,
barber shops, gas stations, pharmacies, hospitals, day care centers, and so on are all standalone
com- mercial entities with a proprietor or employees. See 42 U.S.C. 12181(7)(A), (B), (F), and (K).
Although vending machines sell goods to the public, they lack the other features that are
characteristically associated with the enumerated sales establishments. First, they typically do
not have a standalone location or identity. To the contrary, vending machines are ordinarily
located within a larger establishment, often a business that itself qualifies as a Title III public
accommodation, as a courtesy to the business’s customers. Pet. App. 11a. A vending machine
therefore is generally thought of as a furnishing, amenity, or piece of equip- ment, rather than as
a discrete business. Consistent with that usual understanding, petitioner’s complaint alleges that
he encountered respondent’s vending machines “at his local hospital” and “at a bus station in New
Orleans,” id. at 45a, 47a, and that those are the

10
destinations that he “reasonably expects to visit * * * again,” id. at 46a, 47a.
Second, vending machines can operate without the assistance or oversight of a proprietor or
employees. Respondent’s vending machines are unstaffed pieces of equipment that perform a basic,
fully automated task: exchanging a few quarters or dollar bills for a beverage. Pet. App. 38a; see
Pet. 17. Without a proprietor, em- ployees, or any of the other typical trappings of a distinct
sales establishment, respondent’s vending machines have little in common with the specific
examples listed in Section 12181(7)(E).
b. This does not mean that the ADA phrase “sales or rental establishment” is categorically limited
to operations that possess all three of the foregoing characteristics. Although the typical
“sales establishment” is a standalone entity, one public accommodation may sometimes be located
inside another without forfeiting its distinct identity. A coffee shop, for example, could remain a
place of public accommodation even when it is located within a hotel or a department store.
The term “sales or rental establishment” likewise is not categorically limited to businesses that
are staffed by human proprietors or employees. Congress’s inclusion of a catch-all provision
serves in part to facilitate the ADA’s application to new businesses that utilize technologies or
methods of operation that were unknown when the statute was enacted in 1990. In particular,
businesses may develop sophisticated automation capa- ble of performing complex transactions that
closely resemble—or fully replace—the traditional establish- ments listed in Title III. See, e.g.,
Leena Rao, Amazon Go Debuts as a New Grocery Store Without Checkout Lines, Fortune (Dec. 5, 2016),
http://fortune.com/2016/

11
12/05/amazon-go-store/ (describing automated grocery- store concept). In that situation, a store
could qualify as an ADA “sales establishment” even though auto- mated devices perform functions
that human employees would have performed when the ADA was enacted.2
The characteristics traditionally associated with the enumerated businesses, however, provide
useful points of reference in determining the catch-all provision’s coverage. The stark differences
between respondent’s beverage vending machines and the enumerated sales establishments are
particularly significant because vend- ing machines had long been in operation when the ADA was
enacted. See Kerry Segrave, Vending Machines: An American Social History 7-8 (2002) (describing the
creation of bubble-gum vending machines in the late 1800s and vending machines’ subsequent
proliferation); see also Pet. 15 (asserting that there are now almost 7 million vending machines in
the United States). If Congress had intended to include vending machines among the many entities it
listed as places of public ac- commodation, “one would have expected a clearer indi- cation of that
intent.” Yates v. United States, 135 S. Ct. 1074, 1083 (2015) (opinion of Ginsburg, J.). Congress’s
failure to identify any enumerated category of “public accommodation” that meaningfully resembles
vending machines, at a time when such machines were a familiar feature of the commercial landscape,
indicates that Congress did not intend to include them within the ADA’s definition of that term.

2 By the same token, an automated business of the sort described

in the text might fall within one of Section 12181(7)’s enumerated categories (e.g., as a “grocery
store,” 42 U.S.C. 12181(7)(E)), even though such automated businesses were not familiar to the Con-
gress that enacted the ADA.

12
As the court of appeals recognized, moreover, the ADA can protect access to most vending machines
for persons with disabilities even if the machines them- selves are not treated as distinct public
accommodations. See Pet. App. 16a (explaining that the vending machines at issue here “may very
well be subject to various requirements under the ADA by virtue of their being located in a
hospital or a bus station”). And in the usual case where (as here) vending machines are located
within a place of public accommodation, it makes good practical sense for the operator of the
public ac- commodation to be responsible for ensuring that the machines are accessible to persons
with disabilities. Petitioner contends (Pet. 4, 14) that several technological features could be
added to respondent’s vending machines to make them accessible to blind customers, and that only
respondent is positioned to make those changes. Whether or not that is correct, the more salient
point is that the operator of a public accommodation in which the vending machines are located is
better suited to determine whether such changes are the most efficient means of complying with the
ADA. When buying or leasing vending machines, some business owners might insist upon the
inclusion of accessible features. Others, however, might choose instead to install the machines
at locations within their establishments where their employees will be available to assist
customers with disabilities. The business owner is better positioned than is the seller or lessor
of the machines to determine what method of ensuring accessibility will be most effective at a
particular location.
2. Department of Justice regulations state that “[a] public accommodation shall remove
architectural barriers in existing facilities   * * *   where  such removal

13
is readily achievable.” 28 C.F.R. 36.304(a). As one “[e]xample[] of steps to remove barriers” that
a public accommodation may take, 28 C.F.R. 36.304(b), the regulations refer to “[r]earranging
tables, chairs, vending machines, display racks, and other furniture.” 28 C.F.R. 36.304(b)(4). The
regulations thus treat vending machines as one type of furnishing that may appear within a public
accommodation.
The agency’s 2010 ADA Standards for Accessible Design reflect the same understanding. That document
states: “Where provided, at least one of each type of depository, vending machine, change machine,
and fuel dispenser shall comply with” certain accessibility requirements for individuals with
mobility restrictions. Dep’t of Justice, 2010 ADA Standards for Accessible Design § 228.1 (Sept.
15, 2010); see 75 Fed. Reg. 56,319 (Sept. 15, 2010). If each vending machine were a distinct
place of public accommodation, Title III’s accessibility requirements would apply to each machine
individually. The agency’s regulatory approach, which instead imposes the less stringent
requirement that “at least one of each type of” machine be made accessible, makes sense if (but
only if) the relevant public accommodation is the larger establishment in which the machines
are located.
Contrary to petitioner’s contention (Pet. 13), the agency’s regulations do not suggest that a
vending ma- chine is a “place of public accommodation.” Petitioner relies on the fact that the
regulations’ broad definition of “facility” encompasses vending machines.  See 28 C.F.R.
36.104 (defining “facility” to include, inter alia, “equipment” and “personal property”). But the
regulations do not suggest that every “facility” as so defined is a discrete “place of public
accommodation.” Rather, the

14
regulations define the term “place of public accommo- dation” to mean “a facility operated by a
private entity whose operations affect commerce and fall within at least one of the following
categories.” Ibid. (emphasis added). The “categories” that “follow[]” track the list of public
accommodations that appears in the ADA itself. Compare ibid., with 42 U.S.C. 12181(7)(A)-(L).
Because a vending machine does not fall within any of the enumerated categories—and, in particular,
because it is not a “sales * * * establishment” as that term is properly understood—it is not a
“place of public accom- modation” under the regulatory definition.3
3. Consistent with the statutory text and agency regulations, plaintiffs have historically obtained
relief for Title III violations involving traditional vending machines by suing the persons who
own or operate the places of public accommodation in which those vending machines are located. See,
e.g., Access for the Disabled, Inc. v. First Resort, Inc., No. 11-cv-2342, 2012 WL 4479005, at *5
(M.D. Fla. Sept. 28, 2012) (owner of hotel); Compl., Esposito v. RLJ Medford Hotel, L.L.C., No.
06-cv-12010 (D. Mass. Nov. 2, 2006) (owner of hotel); Compl., Styperk v. John Carroll Univ., No.
04-cv- 1820 (N.D. Ohio Sept. 8, 2004) (university); Compl., Access  4  All,  Inc.  v. Amazonia,
Inc., No. 02-cv-61725

3 The Department of Justice has defined the term “shopping center

or shopping mall” as “[a] building housing five or more sales or rental establishments.” 28
C.F.R. 36.401(d)(1)(ii)(A), 36.404(a)(2)(i). Under petitioner’s theory, that definition would treat
as a “shopping center” any cafeteria or break room that houses five vending machines. The
implausibility of that result further undermines petitioner’s contention that a vending machine
is a “sales establishment” within the meaning of the regulations.

15
(S.D. Fla. Dec. 9, 2002) (owner of gas station); see also West v. Five Guys Enters., LLC, No.
15-cv-2845, 2016 WL 482981 (S.D.N.Y. Feb. 5, 2016) (restaurant with touch screen soda dispenser);
West v. Moe’s Franchisor, LLC, No. 15cv2846, 2015 WL 8484567 (S.D.N.Y. Dec. 9, 2015)
(same).
Similarly here, petitioner is not without redress. As the court of appeals recognized, both the
hospital and the bus station in which petitioner encountered respondent’s vending machines are
“indisputably places of public accommodation.” Pet. App. 16a; see 42 U.S.C. 12181(7)(F)
(identifying “hospital” as a public accommodation); 42 U.S.C. 12181(7)(G) (identifying “a
terminal, depot, or other station used for specified public transportation” as a public
accommodation); 42 U.S.C. 12181(10) (defining “specified public transportation” to include
“transportation by bus”). Petitioner may seek relief for the discrimination that he alleges by
suing either entity to enforce Title III’s non-discrimination mandate. See 42 U.S.C. 12182(a).4

B. The Fifth Circuit’s Decision Does  Not  Conflict  With  Any  Decision Of Another Court Of
Appeals

The court of appeals’ narrow holding does not conflict with any decision of another court of
appeals. No other circuit has confronted the question whether a vending machine is a “place of
public accommodation” within the meaning of the ADA. And no court of appeals
—including the Fifth Circuit here—has adopted  the

4 The United States takes no position on whether petitioner could

make out all of the elements of a Title III claim, or whether the hospital or bus station could
successfully assert any of the defenses available to Title III defendants.

16
“physical-entry rule” that petitioner describes (Pet. 8, 9).
Several courts of appeals have disagreed about Title III’s application to non-physical places
offering goods or services, in the specific context of discrimination in the provision of insurance
coverage or retirement benefits. Notwithstanding their divergent views, however, those courts
have reached consistent outcomes. And in any event, this case does not involve insurance or retire-
ment plans. More broadly, it does not implicate the question whether a Title III plaintiff must
allege discrimination with a nexus to a physical location. The Fifth Circuit did not conclude
that a vending machine lacks a physical identity; it merely recognized that not every physical
object is a “place of public accommodation.” This case would therefore be an unsuitable vehicle
for resolving the division over Title III’s application to goods or services without a nexus to a
physical place.
1. Petitioner contends (Pet. 9, 12) that the court of appeals adopted a “physical-entry rule” that
distinguishes, for example, a “restaurant” from a “food truck.” That contention is unfounded.
Neither the Fifth Circuit nor any other court of appeals has held, as petitioner asserts (Pet. 5,
6, 8), that Title III of the ADA is limited “to physical spaces that people can enter.”
The Fifth Circuit concluded that the “sales establish- ments” described in Section 12181(7)(E) are
limited to “physical stores.” Pet. App. 10a; see id. at 11a (describ- ing the “physical space that
[a business] occupies”). The court construed Section 12181(7)(E) as limited to “actual stores,”
id. at 14a; see id. at 15a (same), and concluded that respondent’s vending machines are not “akin
to” such stores, id. at 11a. But the court’s opinion did not use the word “enter” or “entry,” and
the court

17
did not suggest that a patron’s ability to “enter” is the salient feature of an “actual” or
“physical” store. Nothing in the opinion below would foreclose the Fifth Circuit from concluding in
a future ADA suit that a food truck is “akin to” the statutorily enumerated “establishment[s]
serving food or drink,” 42 U.S.C. 12181(7)(B), and is thus a “public accommodation” under the Act.
Nor has any other court of appeals adopted a physical- entry rule. Petitioner identifies (Pet. 6) a
First Circuit decision stating that Title III is not limited to “actual physical structures * * *
which a person physically enters.” Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s
Ass’n of New England, Inc., 37 F.3d 12, 18 (1994) (Carparts). Although petitioner is correct (Pet.
8) that other courts of appeals have disagreed with the First Circuit’s analysis in Carparts, see
pp. 19-20, infra, those courts have not viewed the potential for physical entry as essential to ADA
coverage. Rather, those other courts have focused on whether the asserted discrimination relates
to “resources utilized by physical access.” Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d
Cir. 1998). The businesses that petitioner discusses (Pet. 12)—such as “food trucks, hot dog carts,
and road- side produce stands”—are physical structures at which patrons access physical goods. No
court has suggested that it matters whether patrons must cross a threshold to enter those
businesses.
2. The courts of appeals have divided over Title III’s application to non-physical places offering
goods or services. In particular, different circuits have employed different analyses in
determining whether Title III reaches discrimination in the provision of insurance coverage or
retirement benefits.   Even in that  context,

18
however, the outcomes of the various cases are poten- tially reconcilable. In any event, this case
does not im- plicate any circuit division.
a. As petitioner notes (Pet. 6-9), the First and Sev- enth Circuits have refused to limit Title III
to actual physical structures. The First Circuit in Carparts was the first court of appeals to
address the question, in a case involving a Title III claim against an insurance association for
administering an allegedly discriminatory plan. 37 F.3d at 14. The court held that the term “public
accommodation” is not “limited to actual physical structures,” and it remanded the case so that
the plaintiff could attempt to develop its claim against the insurance association. Id. at 19.
The Seventh Circuit took the same approach in a case involving an allegedly discriminatory
employer- sponsored retirement plan. See Morgan v. Joint Admin. Bd., 268 F.3d 456 (2001). It
concluded that a public accommodation need not be “a physical site,” and that an insurance company
could not “refuse to sell a policy to a disabled person over the Internet.” Id. at 459. The court
further held, however, that the plan at issue did not qualify as a good or service of a public
accommodation because “[t]he retirement plan was not offered to the public,” but instead “was
negotiated between the employer and the representative of its employees.” Ibid.5

5  Relying on Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28

(2d Cir. 1999), amended on denial of reh’g by 204 F.3d 392 (2d Cir. 2000), petitioner contends
(Pet. 7) that the Second Circuit has adopted the same approach as the First and Seventh Circuits.
But while the court in Pallozzi clearly understood the defendant insurance company to be a place
of public accommodation, see 198 F.3d at 31-32, it addressed whether “an entity covered by Title
III is not

19
In cases involving employer-administered disability plans, the Third, Sixth, and Ninth Circuits
have taken a different approach. The en banc Sixth Circuit addressed the question first, in
Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (1997), cert. denied,
522 U.S. 1084 (1998). Although the court “agree[d] that an insurance office is a public
accommodation” under the ADA, it explained that the plaintiff in that case “did not seek the goods
and services of an insurance office,” but instead “accessed a benefit plan provided by her pri-
vate employer.” Id. at 1010. It concluded that a disability “benefit plan offered by an employer
is not a good offered by a place of public accommodation.” Ibid. The court construed the ADA term
“public accommodation” to refer to “a physical place,” id. at 1014, and it found “no nexus” between
the allegedly discriminatory terms of the plaintiff’s policy and “the services which [the
defendant] offers to the public from its insurance office,” id. at 1011. The court stated that it
“disagree[d] with the First Circuit’s decision in Carparts.” Id. at 1013. Shortly thereafter, the
Third Circuit confronted a case nearly identical to Parker and came to the same result. See Ford,
145 F.3d at 612-614. It concluded that disability benefits received through a plaintiff’s

employer have “no nexus to [the defendant’s] ‘insurance

only obligated by the statute to provide disabled persons with physical access, but is also
prohibited from refusing to sell them its mer- chandise by reason of discrimination against their
disability.” Id. at 33; see id. at 32 n.3 (stating that “[t]here is no dispute that Plaintiffs in
this case” have a “nexus to a place of public accommodation”). The court thus focused on what Title
III requires of covered enti- ties, not on what entities are covered in the first place.

20
office,’” id. at 613, and that the term “public accommodation” does not “refer to non-physical
access,” id. at 614. It therefore held that the plaintiff had failed to state a claim under Title
III of the ADA. Ibid. The Ninth Circuit later joined the Third and Sixth Circuits.  It concluded
that Title III requires “some connection between the good or service complained of and an actual
physical place,” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000),
and that “an insurance company administering an employer-provided disability policy is not a ‘place
of public accommodation’ under Title III,” id. at 1115.
b. Even with respect to the provision of insurance coverage, the results in the cases that
petitioner cites (Pet. 6-9) are potentially reconcilable. The Third, Sixth, and Ninth Circuits each
concluded that an employer- sponsored insurance plan was not a good or service offered by a place
of public accommodation. Those holdings rested at least in part on the fact that the defend- ants
in those cases did not offer the relevant product to  the public.  See Weyer, 198 F.3d at 1115;
Ford,  145 F.3d at 612-613; Parker, 121 F.3d at 1010. The Seventh Circuit reached the same result
with respect to an employer-sponsored retirement plan. See Morgan, 268 F.3d at 459. And the First
Circuit did not grapple with whether the insurance plan at issue had been made available to the
public, concluding merely that the plain- tiffs should be permitted “to adduce further evidence
supporting their view that the defendants are places of ‘public accommodation.’” Carparts, 37 F.3d
at 19.
Petitioner identifies no court of appeals decision holding either (i) that discrimination in the
terms of an employer-sponsored insurance plan can violate Title III of the ADA, or (ii) that
discrimination in the provision

21
of insurance to the public cannot. And some courts have commented that the employer-plan cases can
be read narrowly, eliminating any conflict among the courts of appeals. See, e.g., Rendon v.
Valleycrest Prods., Ltd., 294 F.3d 1279, 1284 n.8 (11th Cir. 2002) (“These cases indicate that * *
* the plaintiff must demonstrate that the policy was offered to the plaintiff directly by the in-
surance company and was connected with its offices, as opposed to its being a privilege provided by
the plaintiff’s employer.”).
c. Although their ultimate holdings can be recon- ciled, the courts of appeals in the insurance
cases described above have disagreed about whether a place of public accommodation must be an
actual physical site. The Third, Sixth, and Ninth Circuits have construed Title III to impose that
limitation. See Ford, 145 F.3d at 614 (stating that a public accommodation does not “refer to
non-physical access”); Parker, 121 F.3d at 1014 (stating “that a public accommodation is a physical
place”); Weyer, 198 F.3d at 1114 (requiring “some connection between the good or service
complained of and an actual physical place”). The First and Seventh Circuits have rejected that
interpretation. See Carparts, 37 F.3d at 19 (stating that the statute is “not so limited”);
Morgan, 268 F.3d at 459 (rejecting the argument that a public accommodation “denot[es] a physical
site”).
In this case, the court below stated that it had chosen to “follow[] the Third, Sixth, and Ninth
Circuits” and to “depart[] from the precedents of the First, Second, and Seventh Circuits.” Pet.
App. 11a n.23. As respondent explains (Br. in Opp. 18), however, the question presented here is
quite different from the issues that those other courts confronted. The court below correctly held

22
that respondent’s vending machines are not sufficiently “akin to” the statutorily enumerated sales
establishments to qualify as ADA “public accommodations.” Pet. App. 11a; see pp. 6-15, supra. But
the court did not base that holding on the (implausible) view that a vending machine lacks a
physical identity. The court simply rec- ognized that not every physical object is a distinct pub-
lic accommodation. That proposition would remain cor- rect and central to the ADA’s proper
application, even if (as the First and Seventh Circuits have concluded) the term “place of public
accommodation” extends beyond physical structures.
Questions concerning Title III’s application to non- physical establishments—including websites or
digital services—may someday warrant this Court’s attention.6 This case is not a suitable vehicle
for addressing those emerging issues, however, since petitioner encountered respondent’s machines
in person, not by telephone or over the Internet. Pet. App. 45a-47a. And the insurance- coverage
decisions that petitioner cites provide no sound basis for concluding that any other circuit would
have found respondent’s vending machines to be places

6 Several district courts have grappled with the question whether

Title III applies to goods or services offered over the Internet. Some decisions hold that Title
III applies only if the alleged online discrimination has a sufficient nexus to a physical place,
while oth- ers hold that the Act does not require any such nexus. Compare Young v. Facebook, Inc.,
790 F. Supp. 2d 1110, 1115-1116 (N.D. Cal. 2011); National Fed’n of the Blind v. Target Corp., 452
F. Supp. 2d 946, 951-956 (N.D. Cal. 2006); Access Now, Inc. v. Southwest Airlines, Co., 227 F.
Supp. 2d 1312, 1317-1321 (S.D. Fla. 2002), with National Fed’n of the Blind v. Scribd Inc., 97 F.
Supp. 3d 565, 569-576 (D. Vt. 2015); National Ass’n of  the  Deaf  v. Netflix,  Inc.,  869 F. Supp. 2d 196, 200-202
(D. Mass. 2012).

23
of public accommodation. Further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL
Acting Solicitor General

T.E.  WHEELER, II
Acting Assistant Attorney General

MALCOLM L. STEWART
Deputy Solicitor General

MORGAN L. GOODSPEED
Assistant to the Solicitor General

TOVAH R. CALDERON 

FRANCESCA L. PROCACCINI
Attorneys

JULY 2017