UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

)

THE UNITED STATES OF AMERICA,	)

)

Plaintiff,	)

)

versus	) Civil Action No.: 4-96-995

) Judge Tunheim

)

ELLERBE BECKET, INC.,	)

) ORAL ARGUMENT REQUESTED

Defendant.	)

)

UNITED STATES' MEMORANDUM IN OPPOSITION TO

DEFENDANT'S MOTION TO DISMISS

TABLE OF CONTENTS

I.	FACTUAL BACKGROUND	2

A.	The United States' investigations of Ellerbe	2

B.	Other factual issues	5

II.	THE ADA'S REQUIREMENTS FOR NEW CONSTRUCTION	7

III.	ARGUMENT	9

A.	The legal standard for granting a motion to
dismiss.	9

B.	Architects who design buildings to be inaccessible
to or unusable by individuals with disabilities
can be held liable under title III of the ADA.	10

1.	The ADA's new construction requirements are broadly drawn, and apply to all parties
involved in the design and construction of inaccessible facilities.	10

2.	By specifically including the term "design" in section 303, Congress clearly signalled its intent to bring those who design new facilities -- architects and other designers -- within the scope of section 303's coverage.	17

3.	Holding architects responsible for designing buildings that exclude individuals with disabilities is consistent with the purposes of the ADA.	19

C.	In sports stadiums and arenas, where other specta
tors can be expected to stand, wheelchair seating locations must provide wheelchair users with lines of sight over standing spectators.	21

1.	Title III of the ADA requires all new sports stadiums and arenas to be readily accessible to and usable by individuals with disabilities.	21

2.	The Department of Justice's interpretation of title III of the ADA and the title III regulation is reasonable.	22

3.	The Department of Justice's interpretation of the ADA's architectural requirements is entitled to deference.	24

D.	The United States' claim is properly before this Court.
27

E.	This is an appropriate case for imposing a civil penalty and granting injunctive relief.	33

IV.	CONCLUSION	35

TABLE OF EXHIBITS

A	Letter dated August 24, 1994 from Civil Rights Division, U.S. Department of Justice, to Mr. Steven L. Allison, Ellerbe Becket Architects.

B	Letter dated December 6, 1994 from Civil Rights Division, U.S. Department of Justice, to Mr. Vincent W. King, General Counsel, Ellerbe Becket, Inc.

C	Letter dated February 28, 1996 from Civil Rights Division, U.S. Department of Justice, to Mr. Vincent W. King, Deputy General Counsel, Ellerbe Becket, Inc.

D	Letter dated December 9, 1994 from Vincent W. King, Ellerbe Becket, to Thomas M. Contois, Civil Rights Division, U.S. Department of Justice, transmitting Project File Index for Oregon Arena Project.

E	Excerpts of deposition testimony of Mr. Gordon Wood, Paralyzed Veterans of America, et al. v. Ellerbe Becket Architects & Engineers, P.C., et al. (D.D.C. Civil Action No. 96-1354 (TFH)) ("the MCI Center case"), taken September 26, 1996.

F	Excerpts of deposition testimony of Mr. Steven Allison, Independent Living Resources, et al. v. Oregon Arena Corp. (D. Ore. Civil Action No. 95-84-AS) ("the Rose Garden Case"), taken October 3, 1995.

G	Excerpts of deposition testimony of Mr. Gordon Wood, Independent Living Resources, et al. v. Oregon Arena Corp. (D. Ore. Civil Action No. 95-84-AS) ("the Rose Garden Case"), taken October 4, 1995.

H	U.S. Department of Justice, Civil Rights Division, Public Access Section, THE AMERICANS WITH DISABILITIES ACT Title III Technical Assistance Manual, Covering Public Accommoda
tions and Commercial Facilities (November 1993 and Supp. 1994)

I	Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., No. 96-1354 (TFH), transcript of bench op. (D.D.C. Oct. 21, 1996).

J	Orr v. Kindercare, No. S-95-507 EJG/GGH, slip op. (E.D. Cal. June 9, 1995).

TABLE OF AUTHORITIES

Cases:	Page(s):

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)	9

Beck v. Levering, 947 F.2d 639 (2d Cir. 1991),	34

cert. denied, 504 U.S. 909 (1992)

Benson v. Northwest Airlines, Inc., 62 F.3d 1108	27

(8th Cir. 1995)

Board of Regents of the University of Minnesota v.	25

Shalala, 53 F.3d 940 (8th Cir. 1995)

Carparts Distrib. Ctr., Inc. v. Automotive	19

Wholesaler's Ass'n, 37 F.3d 12 (1st Cir. 1994)

Chevron, U.S.A., Inc. v. Natural Resources Defense	15

Council, Inc., 467 U.S. 837 (1984)

Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994)	9

EEOC v. Harris Chernin, Inc., 10 F.3d 1286	29, 30

(7th Cir. 1993)

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir.),	29

cert. denied, 423 U.S. 994 (1975)

Ferguson v. City of Phoenix, 931 F. Supp. 688	27

(D. Ariz. 1996)

Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35	26

(D.D.C. 1994)

Goodman's Furn. Co. v. United States Postal Serv.,	28

561 F.2d 462 (3d Cir. 1977) (Weis, J., concurring)

Hamm v. Groose, 15 F.3d 110 (8th Cir. 1994)	9

Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994)	19

In re Workers' Compensation Refund, 46 F.3d 813	31

(8th Cir. 1995)

Innovative Health Sys. v. City of White Plains,	27

931 F. Supp 222 (S.D.N.Y. 1996)

International Bhd. of Teamsters v. United States,	32

431 U.S. 324 (1977)

Kerr-McGee Chem. Corp. v. Hartigan, 816 F.2d 1177	28

(7th Cir. 1987)

Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993),	19

cert. denied sub nom. Hoskins v. Kinney,

114 S. Ct. 1545 (1994)

Martin v. Feilen, 965 F.2d 660 (8th Cir. 1992)	34

Moskal v. United States, 498 U.S. 103 (1990)	14

Munoz v. Imperial County, 667 F.2d 811 (9th Cir.),	28

cert. denied, 459 U.S. 825 (1982)

Newark Branch, NAACP v. Town of Harrison,	28

940 F.2d 792 (3d Cir. 1991)

Northwest Airlines, Inc. v. American Airlines, Inc.,	32

792 F. Supp. 655 (D. Minn. 1992)

Orr v. Kindercare, Civ. No. S-95-507 EJG/GGH, slip op.	27

(E.D. Cal. June 9, 1995)

Orthmann v. Apple River Campground, Inc., 765 F.2d 119	32

(8th Cir. 1985)

Paralyzed Veterans of America v. Ellerbe Becket	4, 16, 18

Architects & Engineers, P.C., 945 F. Supp. 1

(D.D.C. 1996)

Paralyzed Veterans of America v. Ellerbe Becket	32

Architects & Engineers, P.C., No. 96-1534

(TFH), 1996 WL 748416 (D.D.C. Dec. 20, 1996)

Paralyzed Veterans of America v. Ellerbe Becket	23, 24, 25, 26

Architects & Engineers, P.C., No. 96-1534

(TFH), 1996 WL 748420 (D.D.C. Dec. 20, 1996)

Paralyzed Veterans of America v. Ellerbe Becket	23, 24

Architects & Engineers, P.C., No. 96-1534

(TFH), bench op. (D.D.C. Oct. 21, 1996)

Peyton v. Rowe, 391 U.S. 54 (1968)	19

Pinnock v. International House of Pancakes,	27

844 F. Supp. 574 (S.D. Cal. 1993),

cert. denied, 114 S. Ct. 2726 (1994)

RSBI Aerospace, Inc. v. Affiliated FM Insurance Co.,	9

49 F.3d 399 (8th Cir. 1995)

Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133	19

(D.C. Cir. 1984)

Tcherepnin v. Knight, 389 U.S. 332 (1967)	19

Thomas Jefferson University v. Shalala,	25, 26

114 S. Ct. 2381 (1994)

Tull v. United States, 481 U.S. 412 (1987)	33

Tyus v. Schoemehl, 93 F.3d 449 (8th Cir. 1996)	29

United States v. Balistrieri, 981 F.2d 916 (7th Cir. 1992)	33

United States v. East Baton Rouge Parish School Board,	29

594 F.2d 56 (5th Cir. 1979)

United States v. ITT Continental Baking Co.,	33

420 U.S. 223 (1975)

United States v. Menasche, 348 U.S. 528 (1955)	14

United States v. Mendoza, 464 U.S. 154 (1984)	30

United States v. Reader's Digest Ass'n, Inc.,	33

662 F.2d 955 (3d Cir. 1981)

Wilkes v. Gomez, 32 F.3d 1324 (8th Cir. 1994)	25

Statutes:

42 U.S.C. §§ 12101 et seq.	7

42 U.S.C. § 12101(a)(5)	7

42 U.S.C. § 12101(b)(1)	7

42 U.S.C. §§ 12181 through 12189	1

42 U.S.C. § 12181(2)	10

42 U.S.C. § 12181(7)	10, 11

42 U.S.C. § 12182(a)	11

42 U.S.C. § 12182(b)	11, 12, 14

42 U.S.C. § 12183(a)	8, 10, 12, 21, 22

42 U.S.C. § 12186(b)	8

42 U.S.C. § 12188(a)(1)	18

42 U.S.C. § 12188(b)(1)	3, 30, 31

42 U.S.C. § 12188(b)(2)	30, 32, 33

42 U.S.C. § 12188(b)(5)	33

Regulations:

28 C.F.R. Part 36	1, 8

28 C.F.R. Part 36, Appendix A	1, 8

28 C.F.R. Part 36, Appendix A, § 4.33.3	21

Rules:

Fed. R. Civ. P. 12(b)	9

Fed. R. Civ. P. 56	9

Legislative history:

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. (1990)	13

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. (1990)	8

S. Rep. 116, 101st Cong., 1st Sess. 69 (1989)	23

Other:

U.S. Department of Justice, Civil Rights Division,	15

Public Access Section, THE AMERICANS WITH DISABILITIES ACT Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities, November 1993, § III-5.1000

The United States filed this action under the Americans with Disabilities Act (ADA) against Ellerbe Becket, Inc., an architectural firm headquartered in Minneapolis. The complaint alleges that Ellerbe has designed new sports arenas and stadiums in cities across the country that fail to comply with title III of the ADA, 42 U.S.C. §§ 12181 through 12189, and the title III implementing regulation, 28 C.F.R. Part 36, including the ADA's Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"), the architectural requirements applicable to new construction. In particular, the government alleges that Ellerbe has repeatedly designed stadiums and arenas with wheelchair seating locations that do not provide wheelchair users with lines of sight to the floor or field that are comparable to those for other spectators, as required by the Standards. The United States seeks a civil penalty and an injunction compelling Ellerbe to comply with the requirements of the ADA when designing stadiums and arenas in the future.

Ellerbe has moved to dismiss, arguing chiefly that the ADA imposes no responsibility on architects to design new facilities to be accessible to individuals with disabilities. Ellerbe also contends, among other things, that the requirement for "compar
able" lines of sight does not mean that wheelchair users must be able to see what other spectators are able to see. Rather, Ellerbe contends that despite the ADA it can continue to design stadiums and arenas in which wheelchair users will be able to see only the backs of people standing in front of them. Because Ellerbe's positions cannot be squared with either the language or the purpose of the ADA, its motion to dismiss should be denied.

I. FACTUAL BACKGROUND

A.	The United States' investigations of Ellerbe

The Department of Justice began investigating Ellerbe for violations of title III of the ADA in August 1994, when the Department received a complaint against the Rose Garden, an arena in Portland, Oregon, being designed by Ellerbe. Among other things, the complaint alleged that wheelchair seating locations in the arena were designed so that when other patrons stood up, wheelchair users would be unable to see the action on the floor. See Exhibit A. The Department soon received a second complaint, against another arena being designed by Ellerbe -- the Fleet Center, in Boston -- which also alleged that wheelchair seating locations did not provide lines of sight over standing specta
tors. The Department opened a second investigation, and so notified Ellerbe. See Exhibit B.1

The Department's investigations of the Rose Garden and the Fleet Center included review of architectural drawings for both arenas, and confirmed that at both arenas wheelchair users would be unable to see when other patrons stood. As a result of these findings, the Department decided that it was appropriate to review the compliance of other arenas designed by Ellerbe. See 42 U.S.C. § 12188(b)(1)(A)(i) (directing the Attorney General to review the compliance of entities covered by title III of the ADA). Accordingly, the Department reviewed architectural drawings for other Ellerbe arenas, including the Gund Arena in Cleveland, Ohio, the Corestates Center in Philadelphia, Pennsylvania, (formerly known as the Spectrum II) and the Marine Midland Arena in Buffalo, New York (formerly known as the Crossroads Arena). In each case, the Department found that the arena had been designed with wheelchair seating locations that would not provide wheelchair users with lines of sight to the arena floor when other patrons stood.

On February 28, 1996, the Department wrote to Ellerbe's counsel to describe the findings of the investigation. See Exhibit C. The Department informed Ellerbe that it believed Ellerbe had engaged in a pattern or practice of illegal discrimi
nation, and offered Ellerbe an opportunity to negotiate a settle
ment before suit was filed. In the event a settlement could not be reached, the Department advised that it would file suit in the District of Minnesota, where Ellerbe is headquartered. The United States and Ellerbe engaged in extensive settlement discus
sions, but no settlement had been reached when the Paralyzed

Veterans of America filed an action in June 1996 in the United States District Court for the District of Columbia, alleging that a new arena planned for downtown Washington -- the MCI Center, designed by Ellerbe -- failed to comply with the ADA's architectural requirements in various ways, including a failure to provide wheelchair seating locations with lines of sight over standing spectators. Paralyzed Veterans of America, et al. v. Ellerbe Becket Architects & Engineers, P.C., et al., (D.D.C. Civil Action No. 96-1354 (TFH)) (the "MCI Center" case). PVA sought a preliminary injunction halting construction of the MCI Center. Ellerbe moved to be dismissed from the action.

The United States was granted permission to file an amicus brief addressing the plaintiffs' application for a preliminary injunction, motions to dismiss by other defendants on various grounds, and Ellerbe's motion to dismiss. The United States was not allowed to participate in the oral argument on any of the pending motions. Ellerbe's motion was granted, and Ellerbe was dismissed from the MCI Center case on July 29, 1996. 945 F. Supp. 1 (D.D.C. 1996).2 After Ellerbe was dismissed from the action, the United States and Ellerbe resumed negotiations toward a resolution of this matter, but were unable to reach an agree
ment. On October 10, 1996, the United States filed this action.

B.	Other factual issues

Although there has been no opportunity to conduct discovery in this matter, the United States can offer some evidence contra
dicting certain of Ellerbe's factual assertions. For instance, Ellerbe asserts that while it designed the arenas identified in the United States' complaint, it did not construct them. See Ellerbe's Memorandum at 4. While it may be true that Ellerbe has not served as a contractor for any stadium or arena, that does not mean -- and Ellerbe does not claim -- that Ellerbe has not routinely been involved in the construction phase of the stadiums and arenas it designs. To the contrary, it appears that Ellerbe has provided "construction administration" or similar services to its arena clients, services which continue throughout the con
struction process. For instance, an index to Ellerbe's project file for the Portland arena -- an index provided to the United States by Ellerbe in the course of the United States' investiga
tion -- indicates that Ellerbe had substantial involvement in the construction of the Rose Garden. See Exhibit D.3

Ellerbe also asserts that in designing stadiums and arenas, it has always endeavored in good faith to comply with all of the ADA's architectural requirements, and that there is no evidence that it has acted recklessly or willfully. See Ellerbe's Memorandum at 21-22; Beckenbaugh Declaration ¶ 7. Despite this assertion, however, there is such evidence. In his deposition in the MCI Center case, Ellerbe architect Gordon Wood -- the firm's vice president and technical director -- testified that he serves as an advisor to all of Ellerbe's stadium and arena design teams, particularly with respect to issues of ADA compliance. Wood Deposition (MCI Center case) at 10, 15 (see Exhibit E).4 Mr. Wood acknowledged that he has known of the Department's position since at least late 1994, and acknowledged his understanding that the Department of Justice is responsible for enforcing the ADA, and for providing interpretive assistance. Id. at 23. Mr. Wood testified, however, that he does not consider the Department's position on lines of sight authoritative and has "chose[n] to disregard it." Id. at 25. Indeed, he did not make any effort to communicate the Department's position to the MCI Center design team. Id. Further, when Ellerbe learned of the Department's position, it did not make its clients aware of that position. Id. at 34-36.5

II. THE ADA'S REQUIREMENTS FOR NEW CONSTRUCTION

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., is Congress' most comprehensive civil rights legislation since the Civil Rights Act of 1964. Its chief purpose is to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). The ADA's coverage is accordingly broad -- prohibiting discrimination on the basis of disability in employment, State and local government programs and services, transportation systems, telecommunications, commercial facilities, and the provision of goods and services offered to the public by private businesses.

Congress found that architectural barriers constituted one of the types of discrimination "continually encounter[ed]" by individuals with disabilities. 42 U.S.C. § 12101(a)(5). To redress this form of discrimination, Congress mandated that all commercial facilities and public accommodations completed after January 26, 1993, must be "readily accessible to and usable by" individuals with disabilities. 42 U.S.C. § 12183(a). Congress intended strict adherence to the new construction requirements so that, "over time, access will be the rule rather than the exception." H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. 63 (1990) ("The ADA is geared to the future . . . . Thus, the bill only requires modest expenditures to provide access in existing facilities, while requiring all new construction to be accessible.") (emphasis added). Congress required that all newly constructed facilities be designed and constructed according to architectural standards to be set by the Attorney General. 42 U.S.C. §§ 12183(a), 12186(b). The Attorney General's architectural standards are incorporated into the Department of Justice's regulation implementing title III of the ADA, 28 C.F.R. Part 36, and are known as the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the Standards"). Among other things -- and as discussed in more detail below (see infra at 21) -- the Standards set requirements for the number, size, location, and other attributes of wheelchair seating locations for newly constructed stadiums and arenas. The United States' complaint alleges that Ellerbe has engaged in a pattern or practice of designing new arenas with wheelchair locations that do not meet the requirements of the Standards.

III. ARGUMENT

A.	The legal standard for granting a motion to dismiss.

In considering a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, and should not grant the motion unless it is beyond doubt that the plaintiff can prove no set of facts that would warrant relief. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994); Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).6 Thus, Ellerbe's motion must be decided against the factual background alleged in the United States' complaint: Ellerbe has repeatedly designed new stadiums and arenas which are not accessible to and usable by individuals with disabilities, because wheelchair users in those stadiums and arenas are not able to see what other spectators can see. Indeed, nowhere in its motion to dismiss does Ellerbe claim that the stadiums and arenas it has designed provide wheelchair users with lines of sight over standing spectators. Nowhere does Ellerbe claim that wheelchair users who attend events in its facilities can see what other spectators can see. The facilities designed by Ellerbe -- in Boston, Philadelphia, Washington, Cleveland, Portland, and elsewhere -- have all been designed for different owners. It is Ellerbe that is the common denominator among inaccessible arenas from coast to coast. Ellerbe nonetheless contends that it should bear no responsibility for its pattern or practice of designing facilities which effectively exclude wheelchair users from the events held there.

B.	Architects who design buildings to be inaccessible to or unusable by individuals with disabilities can be held liable under title III of the ADA.

1.	The ADA's new construction requirements are broadly drawn, and apply to all parties involved in the design and construction of inaccessible facilities.

As discussed above, title III of the ADA requires new facilities to be designed and constructed to be readily access
ible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(1). The requirement applies to two categories of facilities: "public accommodations" and "commercial facilities." Id. The ADA defines commercial facilities very broadly as all facilities intended for non-residential use whose operations affect commerce (with the exception of certain railroad facili
ties and equipment, and certain facilities covered by the Fair Housing Act). See 42 U.S.C. § 12181(2). The category of public accommodations, while still large, is not as broadly inclusive as "commercial facilities." The statute defines "public accommoda
tions" to be entities (1) whose operations affect commerce, and (2) that fall into one or more of twelve categories of public accommodations set out in the Act. See 42 U.S.C. § 12181(7).7

Title III of the ADA, however, does not only set architec
tural requirements for the design and construction of new facil
ities. It also prohibits a variety of forms of discrimination in the day-to-day operation of certain businesses. That is, in addition to the requirements for new construction set out in section 303, section 302 of the Act imposes on public accommoda
tions, but not on commercial facilities, various other non-
discrimination obligations with respect to their day-to-day operations. See 42 U.S.C. § 12182(a) and (b).8

Ellerbe's argument that the ADA does not cover architects rests entirely on a cross-reference in section 303 to section 302(a). Section 303 provides, in pertinent part, that

as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) of this title includes

(1) a failure to design and construct facilities for first occupancy later than [January 26, 1993] that are readily accessible to and usable by individuals with disabilities . . .

42 U.S.C. § 12183(a). The reference to section 302(a) will not bear the construction Ellerbe puts upon it.

It does violence to the statutory scheme to read the cross reference in section 303 to mean that only those who have obliga
tions under 302 -- the owners, lessors, lessees and operators of public accommodations -- can be held liable for new construction violations under section 303. Under that reading, the only people who could be held liable for design and construction vio
lations of commercial facilities would be those who own, lease, or operate public accommodations. For strictly commercial facil
ities -- many office buildings, for instance, do not contain places of public accommodation -- there is no party who would meet this definition and, therefore, no party to be held account
able for ADA violations. Such a result cannot be harmonized with the language in 303 that explicitly includes "commercial facili
ties" within the scope of the new construction requirements.9 Ellerbe does not explain either 1) how its "plain language" reading of the statute can be squared with the inclusion of commercial facilities in section 303, or 2) if they cannot be squared, why this Court should adopt a reading of the statute which eliminates an entire category of buildings from the coverage marked out by Congress.10

The most sensible reading of section 303's reference to section 302(a) is that section 303 refers to section 302(a) only to indicate that the failure to design and construct accessible facilities constitutes another type of "discrimination on the basis of disability," and not to identify the parties that may be held liable under section 303. This interpretation gives full effect to the terms of the provision. See Moskal v. United States, 498 U.S. 103, 109-10 (1990) (courts should interpret statutes in a manner that gives effect to every clause and word of the statute) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955) (same)).

Such a reading, moreover, is entirely consistent with the differing characters of sections 302 and 303. As noted above, section 303 differs from section 302 in that 302 defines a variety of prohibited activities -- imposition of discriminatory eligibility criteria, failure to modify policies and practices, failure to provide auxiliary aids and services, failure to remove architectural barriers, and others. See 42 U.S.C. § 12182(b)(1), (2); supra n.8. Because the nature of these prohibitions varies so greatly, it is not clear from the prohibitions themselves who is responsible for compliance, and a failure to specify who is responsible would undoubtedly produce finger-pointing between parties with connections to the facility. Accordingly, it made sense to identify, for the variety of obligations imposed in section 302, what parties were responsible for those obligations. Section 303, by contrast, addresses only one category of activity: the design and construction of inaccessible facilities. The parties responsible for complying with section 303 are evident from the nature of the activity itself: those who are involved in the design and construction of a new facility. There is no need to further define -- either to expand or to limit -- the category of responsible parties, because the definition of the prohibited activity inherently carries with it an identification of the responsible parties.11

Ellerbe relies heavily on the opinion dismissing it from the MCI Center case, Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F. Supp. 1 (D.D.C. 1996), the only case to address this issue. That opinion, however, is not persuasive, for the same reasons that Ellerbe's argument is not persuasive. For instance, the decision does not explain why section 303, which plainly applies to public accommodations and commercial facilities, should be limited to parties who own, lease, or operate public accommodations. The opinion does not even acknowledge this discrepancy, much less try to account for it. Rather, the court states only that "the limitation in § 302 to owners, operators, and lessors also applies to § 303 and thereby excludes architects . . . ." Id. at 2. But because section 302 applies only to owners, operators, and lessors of public accommodations and not to commercial facilities at all, this analysis, as discussed above, leads to the patently incorrect result of eliminating from section 303 any meaningful coverage of commercial facilities. The correct reading is one that gives full effect to both sections -- interpreting the cross-reference to 302 in section 303 to mean that a failure to design and construct accessible facilities is merely an additional form of discrimination to be included in section 302's definition of discrimination.

2.	By specifically including the term "design" in section 303, Congress clearly signalled its intent to bring those who design new facilities -- architects and other designers -- within the scope of section 303's coverage.

The language of section 303 itself indicates that architects fall within the scope of its coverage. By including the term "design," Congress clearly intended that those entities who design new facilities -- architects, engineers, and other designers of all types -- have obligations under the ADA. Congress could have written this paragraph without using the word "design," addressing itself only to the end result by making it illegal only to "construct" inaccessible facilities. By including the design function in the description of the prohibited conduct, however, Congress brought within the Act's coverage not just those parties who are ultimately responsible for the construction of a new facility, but also those parties who play a role in the design of a building. Thus, section 303 is properly read to prohibit designing an inaccessible facility as well as constructing an inaccessible facility. The language applies to the entire process of building a facility -- the "design and construction" of a public accommodation or commercial facility, and requires all parties involved in that process to conform their involvement, whatever its scope, to the requirements of the ADA.

Ellerbe argues that only those parties that both "design and construct" new facilities can be held liable under section 303. Because Ellerbe is only the designer, the argument goes, it cannot be held responsible for ADA violations at the arena since it is not involved in the construction of the arenas. See Ellerbe's Memorandum at 11-12. Initially, Ellerbe's argument fails as a factual matter. As discussed above, supra at 5, Ellerbe provides services which continue throughout construction of the facility. Moreover, as a matter of law, Ellerbe's parsing of the language of section 303 creates a large loophole. Under Ellerbe's proposed reading of section 303, so long as a facility is designed to be in compliance with the ADA, the owner and contractor can freely depart from the designs during construction and eliminate accessible features without violating the ADA, because the building is not both designed and constructed in violation. Such a result would effectively nullify section 303.12

The Paralyzed Veterans opinion does not address this loophole. Rather the Court simply concludes that

the phrase "design and construct" is distinctly conjunctive. It refers only to parties responsible for both functions, such as general contractors or facilities owners who hire the necessary design and construction experts for each project.

945 F. Supp. at 2. If this exclusive focus on those ultimately responsible for the facility were correct, it would have made far more sense for Congress to have omitted the word design from the statute altogether, and simply to have made it illegal to construct an inaccessible facility. Congress, however, did expressly include the term "design" when describing the prohibited activities, and neither Ellerbe nor the Paralyzed Veterans decision explains how its inclusion can be squared with their reading of the statute. It is more faithful to the language of the statute, and better serves the purposes of the Act, to read section 303's use of the conjunctive "and" to make it unlawful to design an inaccessible facility as well as to construct an inaccessible facility.

3.	Holding architects responsible for designing buildings that exclude individuals with disabilities is consistent with the purposes of the ADA.

Under well-established canons of statutory construction, in addition to examining the text of the statute the Court must also look to its remedial purposes.13 Architects play key roles in the design and construction of new facilities, particularly in cases involving large sports stadiums and arenas, where an owner relies heavily on architects, engineers, contractors, and other building professionals with highly specialized expertise. In such a case, an owner will in many instances simply be unable to judge whether the building professionals to whom he or she has entrusted the project are complying with the statute, particular
ly if, as the evidence suggests Ellerbe has done, the architect disregards the law or authoritative interpretations of it, or fails to inform his client of the applicable requirements or interpretations. See discussion supra, at 6-7. In most cases, owners will not realistically be in a position to identify and prevent ADA violations during the design and construction of the facility, and errors will have to be addressed after construction is complete, when it may be considerably more difficult and expensive to remedy ADA violations.

In addition to architects and other design professionals, entities other than those who own, operate, or lease the facility in question may exert considerable influence or control over the design and construction of a new facility. For instance, a franchisor of a chain of hotels or restaurants may dictate or control the design plans for facilities in its chain, but typically will not own or lease the facilities, and may have too little control over the operations of the facilities after they are built to be held to be "operating" the facilities within the meaning of title III. Under Ellerbe's reading of the statute, such an entity would have no responsibility to comply with the ADA, despite its control over the design of the facility.

C.	In sports stadiums and arenas, where other spectators can be expected to stand, wheelchair seating locations must provide wheelchair users with lines of sight over standing spectators.

1.	Title III of the ADA requires all new sports stadiums and arenas to be readily accessible to and usable by individuals with disabilities.

As discussed above (see pp. 7-8, supra), section 303 of the ADA requires that newly constructed facilities be "readily accessible to and usable by individuals with disabilities . . . in accordance with standards set forth . . . in regulations issued under this subchapter." 42 U.S.C. § 12183(a). The standards referred to -- the Attorney General's Standards for Accessible Design -- specifically address the placement of wheelchair seating locations in newly constructed stadiums and arenas, requiring that

[w]heelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. . . .

28 C.F.R Part 36, Appendix A, § 4.33.3 (emphasis added).

The Department of Justice interprets the language in the Standards requiring "lines of sight comparable to those for members of the general public" to mean that wheelchair locations in newly constructed arenas must provide a line of sight over standing spectators in facilities where spectators may be expected to stand during the events.

2.	The Department of Justice's interpretation of title III of the ADA and the title III regulation is reasonable.

The Department's reading of section 4.33.3 of the Standards makes perfect sense: if other spectators can see over standing spectators (by standing up themselves), then spectators using wheelchairs must also be able to see over standing spectators, or they will not have a "comparable" line of sight. Put different
ly, the developers, architects, and engineers who design new stadiums can no longer rely on the assumption that when patrons stand, all patrons will still be able to see, by standing up themselves. Rather, they must replace that assumption with a design feature that recognizes that most wheelchair users cannot stand in order to see over others in front of them. Just as the ADA does not allow a new facility to be designed and constructed with an entrance that requires wheelchair users to stand, walk, or climb stairs, so does the ADA forbid an arena to be designed and constructed so that wheelchair users must be able to walk or stand in order to see what is happening on the court or the ice or the stage.

The Department's reading of the "comparable" lines of sight language of the Standards is buttressed by the language and purpose of the statute itself. The new construction provision requires that new facilities be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a). The legislative history of the Act explains that this provision is intended to assure "both ready access to the facility and usability of its features and equipment and of the goods, services, and programs available therein." S. Rep. 116, 101st Cong., 1st Sess. 69 (1989). The central purpose of a sports stadium or arena is to provide a facility in which large numbers of people can gather and view an athletic or other event. At many of those events -- basketball games, music concerts, and others -- spectators will stand for much or all of the event, including the most interesting and exciting portions of the event. Having a line of sight over standing spectators will be critical to enjoyment of events at the facility. To sanction designs which relegate wheelchair users to looking at the backs of the people in front of them during those periods is to diminish the ability of wheelchair users to participate in and enjoy the event. It is precisely the kind of discrimination that the ADA is intended to prevent.

The only court to consider the issue -- the Paralyzed Veterans court (the MCI Center case) -- has come to precisely this conclusion. In a bench ruling denying a defense motion for summary judgment, the court ruled that the ADA does require sports arenas to provide wheelchair users with lines of sight over standing spectators.14 The court found that "the ADA requires a higher degree of accommodation" than previously was required, and that the ADA is "a new remedial law adopted by the Congress of the United States to put those who are disabled in as equal a position as possible with the general public." Transcript of bench op. at 7, 12. The court added that if the Justice Department's interpretation of the "comparable" lines of sight requirement were not correct,

there would be really no new requirements under the ADA, it seems to the Court, and that this new construction then could go along as other construction always has, which would simply not bring any relief to people in the plaintiffs' position that I believe that the statute was meant to cover.

Id. at 16-17. The court concluded that, as a matter of law, "the Americans with Disabilities Act does require such enhanced sightlines at substantially all wheelchair locations in a new arena." 1996 WL 748420, *1.

3.	The Department of Justice's interpretation of the ADA's architectural requirements is entitled to deference.

Significantly, in arguing that wheelchair users need not be able to see over other patrons, Ellerbe nowhere argues that wheelchair users at the arenas it has designed are actually able to see what other spectators are able to see. Instead, Ellerbe argues only that the Department's position with respect to the "comparable" lines of sight requirement does not have the force of law and is not binding. See Ellerbe's Memorandum at 18-21. Ellerbe is correct that the Department's interpretations of title III of the ADA and the title III regulation do not themselves have the force of law. It is well established, however, that the courts must give substantial deference to an agency's interpreta
tion of its own regulations. Thomas Jefferson University v. Shalala, 114 S. Ct. 2381, 2386 (1994) (internal quotes omitted). This means, the 8th Circuit has held, that the agency's inter
pretation "must be given controlling weight unless plainly erroneous or inconsistent with the regulation." Board of Regents of the University of Minnesota v. Shalala, 53 F.3d 940, 943 (8th Cir. 1995) (citing Thomas Jefferson). The court added that "this broad deference is all the more warranted when, as here, the regulation concerns a complex and highly technical regulatory program." Id. (internal brackets and quotation marks omitted). See also Wilkes v. Gomez, 32 F.3d 1324, 1329 (8th Cir. 1994) (same).

Ellerbe contends that the Architectural and Transportation Barriers Compliance Board is the authoritative agency with respect to the ADA's architectural standards, and points to various statements by the Board or its representatives suggesting that the Board differs with the Department of Justice on the question of comparable lines of sight. The Paralyzed Veterans court, however, has already rejected this argument. The court noted that the Board "has declined to address the issue of lines of sight over standing spectators," but added that whatever the Board's treatment of that issue,

it is clear that the Board is not the authoritative agency on this matter. Under the ADA, the Board is merely given the role of setting minimum guidelines for the Attorney General's regulations to follow. Nowhere is the Board listed as one of the agencies having primary responsibility for either enforcing the Act or for interpreting it; at most it has a supplementary role. . . .

Instead, the Justice Department is the authoritative agency, and the [Standards for Accessible Design], not the [Board's ADA Accessibility Guidelines], are the authorita
tive guidelines. Therefore, it is the interpretation of the Department of Justice -- the agency with the authority to enact binding regulations and to enforce the Act -- that shapes the meaning of the regulations.

Paralyzed Veterans, 1996 WL 748420, *2. (citation omitted). The court found the Department of Justice's reading of the comparable lines of sight requirement to be reasonable, and consistent with the terms of the architectural standards and the Act itself. Id. at *4. In addition, the Department's interpretation does not

"add new duties or rights to the statute, such that A[dminis
trative] P[rocedure] A[ct] requirements are triggered." Id. "Therefore," the court held, "the interpretation outlined by the Justice Department is entitled to deference from this Court." Id.15

D.	The United States' claim is properly before this Court.

Raising an assortment of issues -- forum shopping, preclu
sion, comity, standing, ripeness, and the first-filed rule -- Ellerbe argues that this case is not properly before this Court, and should be dismissed. None of Ellerbe's arguments has merit.

First, the United States is not forum shopping, or, as Ellerbe puts it, "[h]opping from circuit to circuit looking for a favorable forum." Ellerbe's Memorandum at 16. Ellerbe ignores two facts. First, the United States has filed only one action, and can hardly be accused of "hopping from circuit to circuit." Second, as discussed above, see supra at 3, the United States informed Ellerbe in February 1996 of its intent to bring an enforcement action in this district, where Ellerbe is headquartered. The government thus registered its intent to sue, and its choice of forum, well before the Paralyzed Veterans brought their action in Washington.

Raising issues of preclusion and comity, Ellerbe next contends that the decision of the Paralyzed Veterans should be binding, and prevent this court from deciding the issue indepen
dently. The United States, however, was not a party to, and is not bound by the judgment dismissing Ellerbe from the MCI Center case. The United States participated in that case only as an amicus curiae, and thus had only a limited opportunity to be heard, and has no right or opportunity to appeal the district court ruling. See, e.g., Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 808 (3d Cir. 1991) (amicus has no right to review by appeal, and cannot request relief not sought by the parties).16 Recognizing that "[p]articipation as an amicus curiae does not provide the requisite degree of control" to warrant binding the amicus with the judgment in the case, Kerr-
McGee Chem. Corp. v. Hartigan, 816 F.2d 1177, 1181 (7th Cir. 1987), the courts have held that amici are not bound by the judgments in the cases in which they participate. See, e.g., Kerr-McGee, 816 F.2d at 1180-81, 1180-81 n.4; Munoz v. Imperial County, 667 F.2d 811, 816 (9th Cir.) (same), cert. denied, 459 U.S. 825 (1982).

Further, actions brought by private parties do not bind the government. As the 5th Circuit has explained, "the United States will not be barred from independent litigation by the failure of a private plaintiff," because "the United States has an interest in enforcing federal law that is independent of any claims of private citizens." United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5th Cir. 1979). "[A]ny contrary rule would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention." Id. See also EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993) (EEOC's interests are broader than those of individuals injured by discrimination; "private litigants cannot adequately represent the government's interest in enforcing the prohibitions of federal statutes"); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir.) (EEOC sues to vindicate the public interest, which is broader than the interests of the individual parties in the prior action), cert. denied, 423 U.S. 994 (1975).17

And while comity is certainly important, the Supreme Court has recognized that "the government is often involved in litigating issues of national significance where conservation of judicial resources is less important than `getting a second opinion.'" United States v. Mendoza, 464 U.S. 154, 158 (1984). The Court rejected the attempt of a private party to collaterally estop the government from relitigating an issue, because doing so

would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari.

Id. at 160.18

Ellerbe's jurisdictional arguments are no more persuasive. Its contention, for instance, that the United States does not have standing to bring this action is really an argument that the United States has failed to state a claim: Ellerbe's "standing" argument is that the ADA does not require a line of sight over standing spectators, so that there is no injury and therefore no standing. The argument has no independent force, resting entirely on the question of the meaning of the comparable lines of sight requirement. Similarly, what Ellerbe labels a "ripeness" argument is really an attack on the ability of the Attorney General to bring actions alleging a "pattern or practice" of discrimination, as provided by title III of the ADA. See 42 U.S.C. § 12188(b)(1)(B)(i).19 Ellerbe argues that because no other court has yet determined that an arena designed by Ellerbe violates the ADA, the United States cannot bring an action alleging Ellerbe has engaged in a pattern or practice of discrimination.20 Ellerbe's Memorandum at 17. Ellerbe thus contends that the Attorney General cannot bring a pattern or practice action until there is a judgment or finding in some other action that the conduct at issue violates the statute. Ellerbe cites no authority for this proposition, and neither the ADA nor the cases contain such a requirement. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 336 n.16 (1977).21

Lastly, the "first-filed rule" has no application here. As the cases cited by Ellerbe make clear, that rule applies when one party files multiple claims against the same defendant in different courts, or when two parties each file claims against the other, and do so in different courts. See Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir. 1985); Northwest Airlines, Inc. v. American Airlines, Inc., 792 F. Supp. 655 (D. Minn. 1992). The United States has filed only one action, and Ellerbe has filed no action at all. Even if the rule applied, the only conclusion could be that this is the "first-
filed" action.

E.	This is an appropriate case for imposing a civil penalty and granting injunctive relief.

In addition to authorizing the court to grant equitable relief, title III of the ADA authorizes the court, in cases brought by the Attorney General, to vindicate the public interest by assessing a civil penalty against an entity found to have violated the statute. 42 U.S.C. § 12188(b)(2)(C). When consid
ering whether to assess a civil penalty or determining the amount of a penalty, the court must consider the defendant's good faith. 42 U.S.C. § 12188(b)(5).22

Ellerbe asserts that "there is no evidence that Ellerbe willfully, intentionally or recklessly disregarded the law," offering the conclusory statement in the declaration of Thomas Beckenbaugh that Ellerbe has made a good faith effort to comply with the ADA in designing the arenas in question. See Ellerbe's Memorandum at 22; Beckenbaugh Dec. ¶ 7. As the deposition testimony cited above shows, however, there is already strong evidence that Ellerbe did willfully or recklessly disregard the Department of Justice's interpretation of the comparable lines of sight requirement. See supra pp. 6-7. Gordon Wood testified twice that he knew of the Department's position, disagreed with it, and disregarded it to the point of not bringing it to the attention of Ellerbe's design teams. He and Mr. Allison also testified that Ellerbe may not even have advised their clients of the Department's position. Discovery may yield further evidence of a reckless or willful disregard for the ADA.

Finally, Ellerbe argues that injunctive relief is not appro
priate here because enjoining Ellerbe "will not bind other design professionals" or other parties. Ellerbe's Memorandum at 22-23. The standard for granting an injunction, however, does not include a requirement that it be effective against the world; the ADA authorizes the court to grant "any equitable relief" that the court considers appropriate, see 42 U.S.C. § 12188(b)(2)(A), and preventing further violations by this defendant is sufficient reason to grant an injunction. See Martin v. Feilen, 965 F.2d 660, 672 (8th Cir. 1992) ("serious misconduct that violates statutory obligations is sufficient grounds for a permanent injunction" (quoting Beck v. Levering, 947 F.2d 639, 641 (2d Cir. 1991), cert. denied, 504 U.S. 909 (1992))). To the extent that other parties need to be deterred from designing and constructing new arenas that do not comply with the ADA, they can be deterred by imposing a substantial civil penalty on Ellerbe. As the cases cited above point out, deterring misconduct by others is one of the chief purposes of civil penalties. See n.22, supra.

IV. CONCLUSION

For the reasons stated above, the United States respectfully urges the court to deny Ellerbe's motion to dismiss.

Respectfully submitted,

DEVAL L. PATRICK

Assistant Attorney General

Civil Rights Division

___________________________

JOAN A. MAGAGNA

THOMAS M. CONTOIS

KATHERINE M. NICHOLSON

Attorneys

Civil Rights Division

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

(202) 514-6014

ROBERT SMALL

Assistant U.S. Attorney

Minnesota Bar No. 10212X

234 United States Courthouse

110 South 4th Street

Minneapolis, Minnesota 55401

(612) 348-1500

Dated: January 13, 1997

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the United States' Memorandum in Opposition to Defendant's Motion to Dismiss was served upon

Lewis J. Baker

Watt, Tieder & Hoffar, LLP

7929 Westpark Drive, Suite 400

McLean, Virginia 22102

attorney for defendant Ellerbe Becket, Inc., by hand delivery on January 13, 1997, and upon

Philip L. Bruner

Faegre & Benson LLP

2200 Norwest Center

90 South Seventh Street

Minneapolis, Minnesota 55402-3901

and

Vincent W. King

310 Fourth Avenue South, Suite 500

Minneapolis, Minnesota 55415

attorneys for defendant Ellerbe Becket, Inc.,

Richard C. Wall

McKenna & Cuneo, L.L.P.

1900 K Street, N.W.

Washington, D.C. 20006

attorney for amici curiae the American Institute of Architects and the Associated General Contractors, and

Lawrence A. Moloney

Doherty, Rumble & Butler, P.A.

3500 Fifth Street Towers

150 South Fifth Street

Minneapolis, Minnesota 55402-4245

attorney for amicus curiae Building Owners and Managers Association, International, by overnight common carrier Federal Express on January 13, 1997.

________________________________

Thomas M. Contois

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

(202) 514-6014