Wednesday, December 27, 2017 – Mamaroneck, New York – The Atlantic Legal Foundation filed its amicus curie brief today with the United States Court of Appeals for the Ninth Circuit, in support of Appellee Domino’s Pizza LLC, and with an aim to reign in repeated over-reach by the U.S. Department of Justice (DOJ) in side-stepping the public notice and other rule-making requirements of the Administrative Procedures Act (“APA”).
Here, as it has done routinely in other actions, the DOJ sought to influence litigation surrounding internet website accessibility provisions of the Americans with Disabilities Act (ADA), by third party litigation instead of APA-compliant regulatory checks and balances. While DOJ sometimes promulgates regulations in accordance with its APA responsibilities, DOJ also regularly files third-party Statements of Interest (SOI) in ADA actions, as well as in other non-ADA litigations. These inconsistent DOJ actions (1) fail to afford citizens advance notice of DOJ positions and the opportunity to be heard under the APA notice/comment framework, and (2) can substantially increase costs and risks when an unexpected third-party DOJ SOI is filed during litigation.
In its latest amicus curie appellate brief, The Atlantic Legal Foundation advocates affirmance of a lower court ruling on two principal issues: (1) the lack of judicial deference afforded to regulatory agencies that attempt to short-circuit the notice and comment protections of the Administrative Procedures Act (“APA”) with respect to regulatory law making; and (2) the uncertainty and costs that arise when competing judicial directives are issued because federal agencies have abdicated their duty to promulgate regulations pursuant to the APA.
Download the brief here – 20171227 USCA9 Domino’s – ALF Mot Leave_Amicus Brief _AS FILED 12-27-2017