UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff

v.

CINEMARK USA, INC.,

Defendant.

§

§	CIVIL ACTION NO.1:99CV-705

§

§	Hon. Donald C. Nugent

§

§	REPLY MEMORANDUM OF LAW

§	IN FURTHER SUPPORT OF

§	PLAINTIFF UNITED STATES'

§	CROSS MOTION FOR PARTIAL

§	SUMMARY JUDGMENT

§

§

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF

UNITED STATES' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

Table of Contents

Table of Authorities	iv

I.	INTRODUCTION	1

II.	ARGUMENT	2

A.	Cinemark Violates the Plain Meaning of Section 302 by Offering an Enhanced and Superior Movie-Going Experience to the General Public, but Failing to Make That Experience Available to Persons Who Use Wheelchairs.	4

B.	Cinemark Misconstrues the Plain Meaning of Section 303

and Standard 4.33.3	9

1.	The Integration Requirement in Standard 4.33.3

Requires More than Companion Seating	10

2.	The Requirement to Provide Persons Who Use Wheelchairs with

Comparable Lines of Sight Is an Independent and Separate

Requirement from the Dispersal Requirement	13

C.	Cinemark Misapplies Relevant Deference Standards	16

1.	Deference to a Federal Agency's Interpretation of its Own

Regulation Is Generally Encouraged and Is Mandated Where

A Regulation Is Ambiguous	16

2.	There Is No "Heightened Deference" to the Fifth Circuit	19

3.	Deference to the Fifth Circuit's Flawed Analysis in Lara

Is Unwarranted	21

D.	Cinemark's So-Called "Evidence" of Local Approvals Does

Not Preclude United States Enforcement of the ADA	22

E.	Neither the Doctrine of Mutual Collateral Estoppel Nor the Doctrine

of Non-Mutual Collateral Estoppel Bars the United States' Claims	26

F.	Cinemark's APA Defense Fails Because No Final Agency Action Exists	28

G.	The Fifth Circuit's Decision in Lara Does Not Deprive

This Court of the Authority to Reach an Independent

Decision on the Legal Issues Involved in this Case	30

III.	CONCLUSION	31

I.	INTRODUCTION

Individuals seated in Cinemark's stadium-style seats are provided with an enhanced movie viewing experience that is superior to the experience offered to those seated in its traditional seats. Persons who use wheelchairs are denied access to Cinemark's stadium-style seats. Cinemark does not dispute these facts.

Instead, Cinemark argues that it is free to place wheelchair seating locations anywhere in its auditoriums – even in locations providing the worst sightlines in the house – as long as there is an "unobstructed" view to the screen. In other words, Cinemark asks this Court to permit movie theater owners and operators to relegate persons who use wheelchairs to the worst seats in a theater as long as there is no obstruction. Such an outcome would undercut the basic premise of the ADA: to provide individuals with disabilities fair and equal enjoyment of public facilities.

The United States does not contend and has never contended that the ADA requires Cinemark to provide persons who use wheelchairs with the best seats in the house. Rather, the ADA specifically prohibits Cinemark from (a) denying persons who use wheelchairs access to a new good, service, or accommodation available at Cinemark's theaters, i.e., stadium-style seating; (b) failing to integrate wheelchair seating locations into areas of the theater where a majority of the patrons sit; and

(c) providing persons who use wheelchairs with inferior lines of sight to the screen.

Despite Cinemark's efforts to introduce tangential and erroneous arguments as well as irrelevant and unfounded allegations, the underlying question before this Court remains the same: In new movie theaters featuring "stadium-style" seating, can people who use wheelchairs be relegated to the traditional sloped-floor seating sections of the theaters and be denied seating in the stadium-style sections? The United States brings the instant motion to resolve this question and to remedy a pattern or practice of discrimination against persons with disabilities by Cinemark in its movie theaters with stadium-style seating.1

II.	ARGUMENT

Although Defendant Cinemark USA, Inc. ("Cinemark") has clouded the record with irrelevant disputed facts, the Court need only consider a limited number of material undisputed facts in order to resolve the United States' motion for partial summary judgment. The undisputed evidence shows that:

•	At least forty-nine (49) of Cinemark's stadium-style theater complexes have auditoriums with two types of seating: stadium-style seating, which is elevated on risers, and tradition or non-stadium-style seating, which is located on the sloped floor section of the auditorium and not on risers. Plaintiff United States' Statement of Undisputed Material Facts in Support of its Cross Motion for Partial Summary Judgment ("U.S. Facts") at 8.

•	Stadium-style seats offer "greater visibility" and "enhanced," "unobstructed sight lines" to the screen and a comfortable viewing experience. U.S. Facts at ¶¶ 11-13. In press releases and advertisements, Cinemark promotes the unique amenities associated with stadium-style seats. Id.

•	In the 49 Cinemark theaters subject to this motion, 80.3 % of the seats are located in the stadium-style section of the auditorium. See Supp. U.S. Facts at ¶ 43.

•	Seats located in the non-stadium-style section do not offer "greater visibility" or "enhanced" and "unobstructed sight lines." U.S. Facts at ¶¶ 11-13, 16.

•	In the 49 Cinemark theaters subject to this motion, Cinemark relegates persons who use wheelchairs to wheelchair seating locations in the traditional sloped-floor sections of its auditoriums, denying them access to the enhanced, unobstructed sight lines that are available to everyone else. Id.; see also Cinemark's Second Motion for Summary Judgment and Brief in Support ("Cinemark Motion"), Section III, ¶¶ 2-3.

•	Stadium-style theaters can be designed so that the stadium-style section of the theater is accessed by persons who use wheelchairs through the use of cross aisles and ramps. See Supp. U.S. Facts at ¶ 44.

The plain meaning of the ADA and applicable regulations does not permit Cinemark to discriminate against persons who use wheelchairs by denying them access to the stadium-style section of its theaters. Accordingly, as a matter of law, Cinemark is liable under sections 302 and 303 of the ADA. Therefore, this Court should grant partial summary judgment in favor of the United States.

A.	Cinemark Violates the Plain Meaning of Section 302 by Offering an Enhanced and Superior Movie-Going Experience to the General Public, but Failing to Make That Experience Available to Persons Who Use Wheelchairs

To prohibit discrimination faced day-to-day by individuals with disabilities, Congress enacted the ADA. This Court must decide whether Cinemark violates section 302 of the ADA when it develops and markets a new and enhanced good, service, or accommodation (i.e., an enhanced and superior movie-going experience through the use of stadium-style seating) yet fails to make that good, service, or accommodation available to persons who use wheelchairs. Despite Cinemark's attempt to complicate and confuse this issue by raising extraneous contentions and immaterial facts, there is no genuine dispute that the stadium-style seating Cinemark offers to the general public has excellent viewing locations, enhanced and unobstructed sight lines to the screen, and a comfortable viewing experience. U.S. Facts at ¶¶ 8, 11. There is further no dispute that seating provided in the traditional sloped-floor seating area of Cinemark's theaters does not offer these features. U.S. Facts at ¶¶ 11-13, 16.

Cinemark insists that it is exempt from section 302's comprehensive mandate against discrimination because stadium-style seating entails an architectural design and construction component. See Cinemark Opp'n at 12-15. According to Cinemark, if a movie theater meets the architectural design and building requirements of section 303 and Standard 4.33.3, it has satisfied all the obligations of section 302. See id. at 12-13. Cinemark relies upon inapposite case law and advances its subjective view of "common sense" in arguing that only the detailed building guidelines in Standard 4.33.3 determine whether Cinemark's exclusion of individuals from stadium-style seating violates the ADA. See id. at 13-15. Cinemark's position misstates the law.

The mandate of section 302 – to provide persons who use wheelchairs with the full and equal enjoyment of a good, service, or accommodation – cannot be ignored merely because one of the distinguishing characteristics of a good, service, or accommodation entails an architectural component. Although Cinemark allows individuals with disabilities to enter its theaters, it denies these individuals the opportunity to participate in, and benefit from, the enhanced movie-going experience offered by the stadium-style seating. The plain reading of section 302 and the broad remedial goals of the ADA prohibit Cinemark from denying individuals with disabilities access to, or enjoyment of, the enhanced movie-going experience that it normally offers to the public.
Moreover, Cinemark ignores the fact that sections 302 and 303 of the ADA are independent and distinct provisions, with independent obligations and liabilities. A cardinal principle of statutory construction gives effect "if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538-539 (1955); see also Moskal v. United States, 498 U.S. 103, 109-110 (1990). A statute should not be read to render a portion of the statute meaningless. See Colautti v. Franklin, 439 U.S. 379, 392 (1979); Cafarelli v. Yancy, 226 F.3d 492, 499 (6th Cir. 2000). Section 302(a) bars a public accommodation from discriminating on the basis of disability in the "full and equal enjoyment" of goods, services and accommodations that it provides to the general public. See 42 U.S.C. § 12182(a). Section 302(b) defines a variety of acts and omissions that constitute discrimination for purposes of section 302(a), including the imposition of discriminatory eligibility criteria, the prohibition of offering separate or different goods and services, the failure to modify policies and practices, the failure to provide auxiliary aids and services, the failure to remove architectural barriers, the failure to provide public accommodation in the most integrated setting, and others. See 42 U.S.C. § 12182(b)(1)(2).

Section 303 addresses only one category of prohibited activity: the design and construction of inaccessible facilities. Thus, the purpose of the ADA is not only to change the way in which new facilities are designed and constructed, but also to discard the practices of operating these new facilities in ways that relegate individuals with disabilities to diminished enjoyment of those facilities and lessen their participation in the day-to-day life of our society. Where new designs and methods of construction heighten and dramatically improve a good, service, or accommodation, a public accommodation must comply with Congress' comprehensive ban against discrimination by offering this improved good, service, or accommodation to persons with disabilities. Excusing a public accommodation from some of its obligations under section 302 merely because the good or service derives its enhanced features from an innovative architectural design reads some key provisions of section 302 out of the law. Further, Cinemark's restrictive reading of section 302 would lead to absurd results. For example, a facility could be designed and constructed in full compliance with all relevant technical guidelines under the ADA, but an owner or operator could simply deny persons who use wheelchairs access to the facility. Under Cinemark's interpretation of section 302, there would no violation of the ADA.

The case cited by Cinemark does not support its claim that compliance with section 303 is sufficient to comply with all of Title III, and is readily distinguishable here. In Caruso v. Blockbuster-
Sony Music Entertainment Centre, 968 F. Supp. 210, 211-12 (D.N.J. 1997), aff'd in part, rev'd in part,174 F.3d 166 (3d Cir.), opinion vacated and superceded on panel reh'g, 193 F.3d 730

(3d Cir. 1999), plaintiffs alleged violations of the ADA for failure to provide persons who use wheelchairs with unobstructed lines of sight over standing spectators in a large music and entertainment facility. Caruso is inapposite – the court's decision centered on its holding that it should not defer to the Department's Technical Assistance Manual on the question of sight lines over standing spectators when it found (incorrectly, in our view) that there was a specific contrary regulatory history of interpretation. See Caruso, 968 F. Supp. at 215-16. Such is not the case here. The Caruso opinion does not stand for the sweeping proposition that section 302 is inapplicable in determining ADA violations where an accommodation has an architectural and design component. The court only briefly discusses the "full and equal enjoyment" language of the statute, and did not address the more specific provisions in section 302(b), such as integrated setting and equal access to accommodations and services. See id. at 216.

Cinemark next argues that Section 302 does not require that individuals with disabilities be provided an identical experience as members of the general public, nor does it require entities to change the goods or services it normally offers the general public. Cinemark Opp'n at 14-15 (relying on McNeil v. Time Ins. Co., 205 F.3d 179 (5th Cir. 2000), cert. denied, 2001 WL 178218 (Feb. 26, 2001) and Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999), cert. denied,

528 U.S. 1106 (2000)). However, the United States does not contend that Cinemark must do either of these things. Cinemark's reliance on McNeil and Doe demonstrates its misunderstanding of the United States' position as well as the goals, purpose, and scope of section 302.

McNeil and Doe involve insurance companies that refused to provide individuals with HIV additional insurance coverage not typically provided to other members. McNeil, 205 F.3d at 187; Doe, 179 F.3d 558. The issue in the instant case is not whether section 302 requires Cinemark to provide an individual with a disability access to a good or service not generally provided to members of the general public. Rather, the issue is whether section 302 requires Cinemark to provide an individual with a disability a good or service that is normally offered to the general public, i.e., stadium-style seating.4

The United States does not contend that Cinemark must provide patrons who use wheelchairs with the best seat in the house. Nor does the United States contend that Cinemark must make every seat in the house accessible to these patrons, or fulfill every subjective preference of each of these patrons. Moreover, the United States has not challenged the basic concept of stadium-style theaters, nor has the United States suggested that Cinemark needs to tear down its stadium-style theaters.5 Rather, Cinemark's practice and policy of promoting and offering the enhanced movie-going experience afforded by stadium-style seating to the general public while, at the same time, failing to provide individuals who use wheelchair access to, and enjoyment of, the stadium-style seating violates the ADA.6

The fact that members of the general public also sit in the traditional sloped-floor seating section does not bring wheelchair seating located in this section into compliance with the "equal enjoyment" mandate of section 302. The test is whether individuals who use wheelchairs are deprived of the superior experience that Cinemark normally offers to the general public. The majority of seats (80.7%) in Cinemark's theaters are in the stadium-style section elevated on risers. See Supp. U.S. Facts at

¶ 43. Therefore, by depriving individuals with disabilities of access to, and enjoyment of, the enhanced moving-going experience normally offered to the general public, Cinemark fails to comply with the "full and equal enjoyment" requirement of section 302.

B.	Cinemark Misconstrues the Plain Meaning of Section 303

and Standard 4.33.3

The undisputed facts demonstrate that Cinemark has violated Section 303 and Standard 4.33.3 in two ways: (1) by failing to provide wheelchair seating locations that are an integral part of the fixed seating plan within the stadium-style seating area; and (2) by failing to provide comparable lines of sight to persons who use wheelchairs.7 See Memorandum of Law in Support of Plaintiff United States' Cross Motion for Partial Summary Judgment ("U.S. Cross Motion") at 23-34.

1.	The Integration Requirement in Standard 4.33.3

Requires More than Companion Seating

Cinemark contends that the requirement in Standard 4.33.3 that "[w]heelchair areas shall be an integral part of any fixed seating plan" merely requires it to provide companion seating next to wheelchair seating locations in order to satisfy this requirement. See Cinemark Opp'n at 23-24. Cinemark misconstrues the Preamble to the Department's final Title III regulations and relies on inapplicable case law in an attempt to support its restrictive reading of Standard 4.33.3. Cinemark's interpretation of this integration requirement is far too narrow, and must be rejected for numerous reasons.

Cinemark's reading of this provision of Standard 4.33.3 renders the Standard's separate and express requirement to provide companion seating redundant and superfluous. Because the plain meaning of Standard 4.33.3 already requires that "[a]t least one companion fixed seat shall be provided next to each wheelchair seating area," the language addressing the integration requirement (i.e., that wheelchair seating be an integral part of the fixed seating plan) must mean something different.8 "Regulations, like statutes, are interpreted according to canons of construction. Chief among these canons is the mandate that constructions which render regulatory provisions superfluous are to be avoided." Black & Decker Corp. v. Commissioner of Internal Revenue, 986 F.2d 60, 65 (3d Cir. 1993) (internal quotation marks omitted); see also Jewett v. Commissioner of Internal Revenue,

455 U.S. 305, 315 (1982) (rejecting interpretation of regulation that rendered half of it superfluous).

Cinemark's reading is also clearly inconsistent with the intent of both Congress and the Department that integration means much more than merely providing a companion seat.9 Congress passed the ADA in part because "historically, society has tended to isolate and segregate individuals with disabilities, and . . . such forms of discrimination . . . continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2). Among the forms of discrimination encountered by persons with disabilities, Congress found, are "segregation[] and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities." Id. § 12101(a)(5). Similarly, the Preamble to the regulation, in addition to recognizing that persons who use wheelchairs have been forced to sit apart from family and friends, also recognizes that persons who use wheelchairs historically have been provided "inferior seating" and "segregated accommodations" compared to non-disabled individuals, thus relegating persons who use wheelchairs "to the status of second-class citizens." See 28 C.F.R. pt. 36, App. B, at 631-633, 651 (2000) (discussion of §§ 36.308, 36.203).10

To effectuate the integration requirement in Standard 4.33.3, wheelchair seating locations must not only be located in the auditorium and next to a companion seat, they must be part of the auditorium seating section where most members of the general public routinely sit. See U.S. Cross Motion at 23-25. Any other interpretation of Standard 4.33.3 would result in the very inferior seating and segregation that Standard 4.33.3 was intended to prevent. Stadium-style seating makes up 80.7% of the seating in Cinemark's stadium-style auditoriums, meaning that, in those auditoriums, the general public sits primarily in stadium-style seats. See Supp. U.S. Facts at ¶ 43. Further, Cinemark emphasizes the greater comfort and "greater visibility and enhanced unobstructed sight lines to the screen" afforded by its stadium-style seating, not by its traditional seating. See U.S. Facts at ¶¶ 11-13. Therefore, to be "an integral part of the fixed seating plan" in Cinemark's stadium-style theaters, wheelchair seating locations must be located in the stadium-style section.11

Contrary to Cinemark's contention, the decisions in Caruso v. Blockbuster-Sony Entertainment Centre, 193 F.3d 730 (3d Cir. 1999) and Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) do not support its narrow interpretation of Standard 4.33.3's integration requirement because they do not even address that requirement. See Cinemark Opp'n at 22-24. The integration provision of Standard 4.33.3 was not at issue in Caruso. Rather, Caruso discusses whether the "lines of sight comparable" language in Standard 4.33.3 requires persons who use wheelchairs to be provided lines of sight over standing spectators. See 193 F.3d at 731-37. The decision in Arnold is limited to the resolution of several procedural issues (e.g., class certification, bifurcation of trial, reconsideration and interlocutory appeal).

In sum, it is undisputed that Cinemark does not provide wheelchair seating locations in the stadium-style section of its auditoriums. See, e.g., Cinemark Motion at Section III, ¶ 3 ("Wheelchair-
accessible seating at Cinemark's stadium-style movie theaters . . . is located on a flat portion of each auditorium, near the entranceway and exits, in front of the tiered seats."). Rather, Cinemark locates its wheelchair seating in the front of its auditoriums, see id., in traditional sloped-floor seating that comprises less than 20% of the total seating in its stadium-style theaters, see Supp. U.S. Facts at ¶ 43. Based on these undisputed facts, this Court should conclude that Cinemark's seating is not "an integral part of the fixed seating plan," in violation of Standard 4.33.3.12

2.	The Requirement to Provide Persons Who Use Wheelchairs with

Comparable Lines of Sight Is an Independent and

Separate Requirement from the Dispersal Requirement

In opposing the United States' motion, Cinemark alternatively argues that the comparable lines of sight requirement does not apply to its theaters because they fit within an exception to the rule and that, in any event, it has complied with the requirement for comparable lines of sight. See Cinemark Opp'n at 17-19. Cinemark's arguments lack merit.

Cinemark first argues that Standard 4.33.3's line of sight requirement does not apply to theaters with a seating capacity of 300 or less. See Cinemark Opp'n at 17-18. Cinemark improperly collapses the comparable line of sight requirement with the separate "dispersal" requirement. However, in addition to requiring integration, comparable lines of sight, and choice of admission prices (when relevant), Standard 4.33.3 also requires wheelchair seating locations to be dispersed throughout a facility. See Standard 4.33.3. According to Cinemark, because the dispersal requirement applies only to a facility with a seating capacity exceeding 300, a smaller facility (i.e., one with a seating capacity of 300 or less) may avoid both the dispersal and the line of sight requirements. See Cinemark Opp'n at 17-18. Cinemark misconstrues the regulation.

A plain reading of Standard 4.33.3 establishes that, in addition to the requirement that wheelchair seating locations be an integral part of the fixed seating plan, the regulation contains two independent requirements that are applicable here: (1) that wheelchair seating locations have lines of sight comparable to those for members of the general public, and (2) that, in assembly areas with seating capacities exceeding 300, wheelchair seating locations be dispersed in two or more different locations. See Paralyzed Veterans of Am. v. D.C. Arena, 117 F.3d 579, 588 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 1184 (1998). Cinemark's interpretation of Standard 4.33.3 reads the requirement of comparable lines of sight out of the regulation. Nothing in Standard 4.33.3 permits a facility with a seating capacity of 300 or less to provide wheelchair seating locations only in locations that offer distinctly inferior lines of sight that are not comparable to those provided most other patrons.

Cinemark next argues that it has complied with the comparable lines of sight requirement because, in Cinemark's view, Standard 4.33.3 only requires that the sight lines for wheelchair spaces be "capable of being compared" to other public seating, and imposes no particular quality of sight lines. Cinemark Opp'n at 18. As explained in the United States' cross motion, the term "comparable" should be given its common meaning of "equivalent or similar." U.S. Cross Motion at 25-34. Thus, it is not enough that sight lines afforded wheelchair seating locations can be compared to those near them; they need to be qualitatively comparable to those normally provided to the general public. Because the regulation's standard is "comparability," the determination of what is "comparable" is necessarily decided on a case-by-case basis. For example, if most members of the general public have viewing angles exceeding 30-35 degrees, then persons in wheelchairs may also be provided viewing angles exceeding 30-35 degrees, so long as the viewing angles are otherwise "comparable" for both types of seats.

Cinemark's third argument asserts that Standard 4.33.3's exception providing that "[a]ccessible viewing positions may be clustered for bleachers, balconies, and other areas having lines of sight that require slopes of greater than 5 percent" (emphasis added) permits its placement of wheelchair seating on the unelevated sloped floor in the front of its theaters. See Cinemark Opp'n at 19. Cinemark tries to exempt an entire auditorium through an exception that was intended for particular limited "areas," i.e., bleachers and balconies. Cinemark claims the exception applies to its theaters because "[t]he floor rises at an angle plainly not accessible to wheelchairs." Id.

This exception to Standard 4.33.3, however, does not apply here; and even if it were to apply, it does not negate the comparable lines of sight requirement. The exception merely permits noncompliance with the dispersal requirements of Standard 4.33.3, and only in limited circumstances. Even where the exception applies, the exception still requires "[e]quivalent accessible viewing positions" on levels having accessible egress. In other words, "equivalent accessible viewing positions" with comparable lines of sight must still be provided.13

Moreover, Cinemark wrongly concludes that the stadium-style sections of the theater are "plainly not accessible to wheelchairs." Cinemark Opp'n at 19. More accurately, it is feasible for persons who use wheelchairs to access stadium-style seating through cross-aisles and ramps, see Supp. U.S. Facts at ¶ 44; however, Cinemark has simply chosen to design its theaters without providing access to the stadium-style seating section for persons who use wheelchairs. That choice violates the ADA.

The limited exception to Standard 4.33.3 does not exempt whole auditoriums. See Fiedler, 871 F. Supp. at 38. Those areas that are within the exception must still comply with all the provisions of Standard 4.33.3 except for dispersal. The exception does not affect Cinemark's obligation to design and construct new theaters to provide patrons who use wheelchairs with the opportunity to enjoy the enhanced and superior lines of sight heralded by Cinemark as the central attraction of its stadium-style theaters.

C.	Cinemark Misapplies Relevant Deference Standards

1.	Deference to a Federal Agency's Interpretation of its Own Regulation

Is Generally Encouraged and Is Mandated Where a Regulation Is

Ambiguous

In the recent case of Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court articulated and clarified the appropriate level of deference that courts should give a Federal agency's interpretation of its own regulation. According to the Supreme Court, agency interpretations of its own regulations are "entitled to respect" to the extent the agency's position is persuasive. Id. at 587. The Supreme Court further instructs that, if a court finds the language of a regulation to be ambiguous, then the court must defer to an agency's interpretation of its own regulation pursuant to the Supreme Court's earlier holding in Auer v. Robbins, 519 U.S. 452, 461 (1997) (an agency's interpretations of its own regulation is controlling unless plainly erroneous or inconsistent with the regulation). See Christensen, 529 U.S. at 588. Moreover, despite Cinemark's creative interpretation of Christensen to the contrary, it is irrelevant whether the agency's interpretation of its own regulation is articulated in a legal brief, a policy document, or a notice and comment procedure.14 See id.

Thus, applying Christensen to the claims surrounding Standard 4.33.3 in the instant case, if the Court finds the requirements of Standard 4.33.3 to be clear on their face, then the Court should independently interpret the plain meaning, but is encouraged to look to the Department of Justice's interpretation for guidance. See Christensen, 529 U.S. at 587. Should the Court find the requirements of Standard 4.33.3 to be ambiguous, then the Court must defer to the Department of Justice's interpretation of Standard 4.33.3 unless that interpretation is plainly erroneous or inconsistent with the regulation.15

The United States submits that the requirements of Standard 4.33.3 are clear on their face and can be applied to the theaters subject to the instant motion as follows: (1) the requirement for wheelchair seating locations to be "an integral part of any fixed seating plan" is violated where two types of seating plans, stadium-style seats (with enhanced sight lines) and traditional sloped-floor seating (with unenhanced sight lines) are provided in a single auditorium and no wheelchair locations are provided in the stadium-style section; and (2) the requirement that wheelchair locations provide "lines of sight comparable to those for members of the general public" is violated where two types of seats, "stadium-
style" and "traditional sloped-floor," are provided in a single auditorium and no wheelchair areas are provided in the stadium-style section. This interpretation is entitled to respect if this Court finds these regulatory requirements to be clear on the face of the rule, and is controlling if the Court finds the regulatory requirements ambiguous.

Finally, Cinemark alleges that deference is not due because the United States' interpretation of Standard 4.33.3 has been "a moving target." See Cinemark Opp'n at 1, 3, 16, n. 12 (incorporating by reference Cinemark Reply at 6, n. 6). However, the United States' interpretation of Standard 4.33.3 has not changed through time. The United States has always maintained that: (a) at a minimum, persons who use wheelchairs must have access to the stadium-style section of auditoriums; (b) because the relevant standard is "comparability," there is no minimum or maximum viewing angle required (i.e., if most members of the general public have viewing angles to the top of the screen exceeding 35 degrees, then persons who use wheelchairs may also be provided viewing angles exceeding 35 degrees); and

(c) owners and operators of movie theaters must provide lines of sight for persons who use wheelchairs within the range of viewing angles offered to most members of the general public with respect to viewing angles, distance to the screen, obstruction of view, and distortion of images.16 The United States' position is consistent with Standard 4.33.3, is not clearly erroneous, and has not changed. Thus, the Court should grant respect to the United States' position, and must defer to the United States' position if it finds the requirements of the applicable regulations ambiguous. See Christensen, 529 U.S. at 587.

2.	There Is No "Heightened Deference" to the Fifth Circuit

Cinemark concedes that the Sixth Circuit is not bound by the decisions of its sister circuits. See Cinemark Opp'n at 14, n. 17. However, Cinemark asks this Court to give "heightened" deference to the Fifth Circuit in order to shield Cinemark from potential "inconsistent" legal obligations. See Cinemark Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 8-9). Cinemark's claim of "heightened" deference is inappropriate and should be rejected.

First, Cinemark's claim that it faces potential "inconsistent" legal obligations is unfounded. The Fifth Circuit held that Cinemark must provide persons who use wheelchairs with unobstructed views to the screen. See Lara v. Cinemark, 207 F.3d 783, 789 (5th Cir. 2000), cert. denied, 121 S. Ct. 341 (2000). Should this Court grant the instant motion, Cinemark would have to provide persons who use wheelchairs with both unobstructed views of the screen and seating locations in the stadium-style section of its auditoriums. Cinemark's compliance with the latter ruling would in no way affect its compliance with the former ruling. Indeed, the single case on which Cinemark relies for its "heightened" deference standard, Colby v. J.C. Penney Co., 811 F.2d 1119 (7th Cir. 1987), describes "inconsistent legal obligations" as putting a party in an "impossible position." Id. at 1124; see also Cinemark Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 12). Although this Court's rejection of Lara would result in additional, but not inconsistent, obligations for Cinemark, it would not put Cinemark in an "impossible situation," i.e., where compliance with one court's order would mean non-compliance with a separate court's order.

Moreover, in making its claim for heightened deference, Cinemark ignores relevant Sixth Circuit authority instructing district courts to evaluate the decisions of sister circuits on the merits of the underlying legal issues. See Nixon v. Kent County, 76 F.3d 1381, 1388 (6th Cir. 1996) (en banc) (courts within the Sixth Circuit are not constrained to follow decisions of sister circuits if, in the district courts' opinion, they are based upon an incomplete or incorrect analysis); Berryhill v. United States, 199 F.2d 217, 219 (6th Cir. 1952) (stating that a district judge faced with no controlling authority in his circuit should "rule[] in accordance with his own view of the applicable law"). Because the outcome in the instant case will have far reaching consequences for both individuals with disabilities and private entities in the Sixth Circuit and beyond, it is imperative that the Court give the greatest weight to the underlying substantive legal claims of both parties, and give little, if any, weight to Cinemark's claim that it could have a more favorable ruling in a different circuit.

3.	Deference to the Fifth Circuit's Flawed Analysis in Lara Is Unwarranted

Should this Court find the analysis in Lara "incomplete" or "incorrect," it must not defer to the Fifth Circuit. Nixon, 76 F.3d at 1388. The United States has previously discussed the underlying flaws in the Fifth Circuit's Lara decision and incorporates those discussions herein by reference. See U.S. Cross Motion at 28-33. Nevertheless, several of Cinemark's mischaracterizations warrant brief correction and clarification.

First, the United States' discussion of hypothetical seating, such as wheelchairs facing sideways, was meant only to demonstrate the absurdity of assessing comparable lines of sight by measuring obstruction only, as the Lara decision would do. See Cinemark Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 3); see also U.S. Cross Motion at 29. The Lara decision has the practical effect of permitting movie theater owners and operators to continually provide persons who use wheelchairs with the worst seats in the house as long as those seats provide "unobstructed" views.

Second, Cinemark asserts that the United States does not dispute the Fifth Circuit's conclusion that "questions regarding 'viewing angle' did not arise until well after DOJ promulgated Section 4.33.3." See Cinemark Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 3 (quoting Lara, 207 F.3d at 788)). The United States does in fact dispute this conclusion. See U.S. Cross Motion at 30-31. Prior to the promulgation of Standard 4.33.3, the Access Board considered several factors related to viewing angles, such as "slope of the floor; the height of the screen; the distance between rows; and the staggering of seats." 56 Fed. Reg. 35408, 35440 (1991), App. at 28. Although Cinemark argues that the word "viewing angles" is not explicitly used, see Cinemark Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 4, n. 3), the factors listed by the Access Board are inextricably related to viewing angles. At a minimum, the Fifth Circuit was clearly wrong in its related conclusion that the Access Board only considered the factor of "viewer obstruction" prior to the promulgation of Standard 4.33.3. See Lara, 207 F.3d at 788.

Third, the Fifth Circuit specifically found the language in Standard 4.33.3 to be ambiguous; and thus the Fifth Circuit should have deferred to the United States' interpretation as Christensen has since made clear. Christensen, 529 U.S. at 588. Cinemark's claim that the Lara Court did not find Standard 4.33.3 to be "ambiguous" because the word "ambiguous" does not appear in the decision is disingenuous. The Fifth Circuit specifically states: "The text of section 4.33.3 provides little guidance as to whether theaters must provide wheelchair-bound moviegoers with comparable viewing angles or simply unobstructed lines of sight." Lara, 207 F.3d at 788. After the Lara case, the Supreme Court held that, where a court finds a regulation ambiguous, it must defer to an agency's interpretation of its own regulation if that interpretation is not clearly erroneous or inconsistent with the regulation. Christensen, 529 U.S. at 588. Thus, Christensen instructs that the Fifth Circuit should have deferred to the United States' interpretation of Standard 4.33.3, unless the Fifth Circuit found the United States' interpretations to be clearly erroneous or inconsistent with Standard 4.33.3. Id.

D.	Cinemark's So-Called "Evidence" of Local Approvals Does

Not Preclude the United States' Enforcement of the ADA

Through its discussion of state code certification, Cinemark attempts to misdirect the Court's attention from the central issue of this case and advances several misleading arguments and erroneous facts. See Cinemark Opp'n at 24 (incorporating by reference Cinemark Reply at 9-12).

First, Cinemark contends that the resolution of the disputed facts surrounding local approval of certain Cinemark theaters in Texas is critical to this case. It is not. A Federal court's interpretation and application of the ADA – a Federal statute – is not dependent upon whether Cinemark received an approval of the theaters from local officials applying the certified state codes. The certification of state codes merely creates a rebuttable presumption that a certified code meets or exceeds Title III's new construction requirements. See 42 U.S.C. § 12188(b)(1)(A)(ii). However, the Department's certification of state codes does not speak to the way in which a local official applies the certified code. See 28 C.F.R. Pt. 36, App. B at 677-78 (2000). Thus, a local approval is not conclusive evidence of compliance with the ADA; even when a building was approved by a local official, a court can find that a building was not built in compliance with the certified code and/or does not comply with Title III standards.

In the instant case, because the Department has shown a violation of Standard 4.33.3, it has established a violation of the ADA. It is possible that Cinemark would be able to establish that local officials granted approvals of particular facilities as built. However, misapplication of the certified state code by local officials in this case would not excuse Cinemark's failure to comply with Federal law.

In order to demonstrate to the Court the way in which local officials can, and in fact did in this case, misapply a state code, the United States presented two very clear and simple examples of problems at one Cinemark theater in Texas.17 See Plaintiff United States' Counter Statement of Facts in Dispute of its Memorandum of Law in Opposition to Cinemark's Second Motion for Summary Judgment at 1-2. Moreover, as demonstrated supra at 2-3, the United States is relying upon undisputed facts that show Cinemark violated the ADA with respect to the placement of wheelchair seating areas. Thus, as a matter of law, if this Court concludes that Cinemark violated the ADA, then the local officials misapplied the certified state code for ADA purposes.

Second, the United States has never indicated, publicly or otherwise, that an entity receiving a local approval pursuant to a certified state code is immune from suit. In fact, the ADA specifically contemplates post-certification enforcement proceedings in which evidence of certification would be considered rebuttable evidence that the code meets the requirements of the ADA. See 42 U.S.C.

§ 12188(b)(1)(A)(ii) ("At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this [Act.]").

Cinemark claims that it "relied" on the United States' press statements regarding the certification process, such that the United States should now be "estopped" from litigating against Cinemark. See Cinemark Opp'n at 24 (incorporating by reference Cinemark Reply at 9). Apparently, Cinemark interprets statements regarding "additional" legal protection to mean "complete" legal protection. Reliance cannot be manufactured through an arbitrary or mistaken interpretation of a statement. See Goldstick v. ICM Realty, 788 F.2d 456, 465 (7th Cir. 1986) (reliance is inappropriate where the promise has been fabricated or misunderstood without fault on the promisor); see also Office of Personnel Management v. Richmond, 496 U.S. 414, 420-433 (1990) (a court should only entertain equitable estoppel claims against the government in extremely rare circumstances.) Moreover, regardless of any statements by the United States, the plain and unambiguous language of the ADA describing post-certification enforcement actions, see 42 U.S.C. § 12188(b)(1)(A)(ii), put Cinemark on notice that local approvals do not provide immunity from Federal enforcement. Therefore, any alleged reliance by Cinemark was misguided, and its estoppel argument should be rejected.

Finally, there are significant evidentiary problems with Cinemark's current "record" of approvals. Although Cinemark claims that its Appendix of Documentary Evidence in Support of Motion for Summary Judgment provides proof of fourteen separate TAS approvals, see Cinemark Motion at 7, ¶ 10, a close review of Cinemark's appendix reveals approval documentation for only three facilities.18 The rest of the documentation represents either preliminary approvals of proposed plans, or disapprovals of plans rather than of the theaters "as-built."19 Thus, the Court should not give any legal effect to what Cinemark has proffered as "evidence" of approval, absent Cinemark's provision of a clear and unambiguous record of approvals of as-built facilities, and sufficient opportunity for the United States to research and investigate their authenticity and validity.

E.	Neither the Doctrine of Mutual Collateral Estoppel Nor the Doctrine

of Non-Mutual Collateral Estoppel Bars the United States' Claims

Cinemark acknowledges that the United States was not a party to the Lara litigation. Therefore, it is axiomatic that the United States cannot be bound by the decision reached in that action. See, e.g., Martin v. Wilks, 490 U.S. 755, 761 (1989).20 Nor has Cinemark shown, nor can it, that the United States "assume[d] control over the [Lara] litigation" in the manner described in Montana v. United States, 440 U.S. 147, 154 (1979). As demonstrated in our earlier brief, the United States' involvement in Lara was limited to that of amicus curiae on limited points of law with no other involvement in the development or proceedings of the case, and thus the United States should not be bound by the results of the Lara litigation. See U.S. Opp'n at 12-16. Cinemark misrepresents the nature of the United States' participation in the Lara litigation, contending – without factual basis – that the United States discussed litigation and mediation strategy with the Lara plaintiffs' attorneys. See Cinemark Opp'n at 24-25 (incorporating by reference Cinemark Reply at 13). In fact, the United States never discussed litigation strategy with the Lara plaintiffs' attorneys. See Declaration of Phyllis H. Cohen ¶¶ 3-10, U.S. App., Tab A (describing limited extent of United States' participation in Lara action).

Further, the fact that the United States was not a party to the Lara litigation precludes application of both the doctrine of mutual collateral estoppel and the doctrine of non-mutual collateral estoppel to its claims. Under both doctrines, the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate its claims in a prior action.21 The United States, acting solely as amicus curiae in the Lara action, never had a full and fair opportunity to litigate its claims against Cinemark.22 Therefore, no theory of collateral estoppel can bar its claims. Further, because only a non-party to a prior action may assert non-mutual collateral estoppel against the party that appeared in both actions,23 Cinemark's attempt to assert the doctrine of non-mutual collateral estoppel against the United States is improper.

Finally, contrary to Cinemark's contention (see Cinemark Opp'n at 24-25 (incorporating by reference Cinemark Reply at 14-15)), the United States in no way concedes that the Supreme Court's decision in United States v. Mendoza, 464 U.S. 154 (1984), allows Cinemark to assert the doctrine of non-mutual collateral estoppel against the United States. More accurately, Mendoza addresses whether the government may be collaterally estopped from relitigating an issue that it previously litigated against another party. Mendoza has no application where, as here, the government was not a party to the prior litigation. Therefore, Mendoza provides no authority for Cinemark to assert the doctrine of nonmutual collateral estoppel against the United States.

F.	Cinemark's APA Defense Fails Because No Final Agency Action Exists

This Court's March 22, 2000 Order unambiguously addresses and rejects each and every APA-
related argument raised by Cinemark to date.24 However, in its latest round of briefs on this issue, Cinemark raises an erroneous and misleading argument that demands clarification and response.

Faced with the reality that no final agency action exists in the instant case, Cinemark has fabricated a wholly unsupported reading of the APA: "Cinemark need not show that the DOJ engaged in 'final agency action'" because "[t]he jurisdictional bar found in the APA [ ] applies only to 'claims,' not defenses." See Cinemark Opp'n at 25 (incorporating by reference Cinemark Reply at 16). This reading of the APA directly contradicts this Court's March 22, 2000, Order, as well as the plain language of the APA and relevant Sixth Circuit precedent.

In its March 22, 2000, Order, this Court made clear that the presence of final agency action is a necessary element to Cinemark's APA-based defense:

. . . Defendant's APA counterclaim must be dismissed because there is an adequate remedy in Court: Defendant may assert a violation of the APA as a defense to the DOJ's enforcement action against it [ ]. Where an alternate adequate remedy is available to review a final agency action the APA does not express the U.S. government's consent to suit.

March 22, 2000, Order at 11 (quoting, in part, Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997)) (citations omitted) (emphasis added). Whether an APA allegation takes the form of a claim or some alternate remedy, such as a defense, both this Court and the Sixth Circuit recognize that final agency action is a prerequisite to judicial review of any APA allegation. See id.; see also Beamon, 125 F.3d at 967 ("the APA does not express the U.S. government's consent to suit if an alternate adequate remedy is available to review a final agency action") (emphasis added).

The Court's March 22, 2000 ruling is consistent with the plain language of the APA, which makes no distinction between "claims" and "defenses." 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."). More accurately, the plain language of the APA indicates that the finality requirement is applicable whenever courts are contemplating alleged APA violations. See id.; see also United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000) ("Interpretation of a statute begins with the statute's plain language, and if such language is clear and unambiguous, the Court will usually proceed no further.").

Notably, Cinemark fails to identify a single case that supports its unique reading of the APA. Instead, Cinemark pieces together a series of inapplicable cases, none of which limits the APA's requirement for final agency action.25 See Cinemark Opp'n at 24 (incorporating by reference Cinemark Reply at 17) (citing Hoctor v. United States Dep't of Agriculture, 82 F.3d 165, 168 (7th Cir. 1996) (addressing the unrelated question of whether an agency known to have conducted a final agency action ("a promulgated rule") violated the notice and comment provisions of § 553 of the APA); American Frozen Food Inst., Inc. v. United States, 855 F. Supp. 388, 390-391 (Ct. Int'l Trade 1994) (same); Caruso v. Blockbuster Sony Music Entm't Ctr., 968 F. Supp. 210, 216-217 (D. N.J. 1997) (addressing an alleged APA violation only after finding that a final agency action existed), aff'd in part, rev'd in part, 193 F.3d 730 (3rd Cir. 1999); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 743 (D. Or. 1997) (same). Because no Court has adopted Cinemark's unique reading of the APA eliminating the finality requirement, and because Cinemark's reading of the APA is inconsistent with the plain language of the APA and this Court's March 22, 2000, Order, it should be rejected here.26

G.	The Fifth Circuit's Decision in Lara Does Not Deprive

This Court of the Authority to Reach an Independent

Decision on the Legal Issues Involved in this Case

Contrary to Cinemark's representation (see Cinemark Opp'n at 25-26 (incorporating by reference Cinemark Reply at 19)), the United States has not asked this Court to "overrule" the Fifth Circuit's decision in Lara. The United States understands that only the Fifth Circuit sitting en banc or the United States Supreme Court may overrule the Lara decision. The United States does ask this Court, however, to reach a decision different from that reached by the Fifth Circuit, which this Court certainly has the power to do.27 Although Cinemark may, at the appropriate time, ask this Court to decline to order a remedy applicable to theaters located in the Fifth Circuit, this Court has the authority, and indeed is obligated, to reach an independent decision on the legal issues presented in this case. See id. at 6. Moreover, because the United States has asserted claims in this action that were not presented to the Fifth Circuit in Lara, see discussion at 27, n. 22, supra, Cinemark is not entitled to summary judgment in the Fifth Circuit or elsewhere as to all of the United States' claims.

III.	CONCLUSION

For the foregoing reasons, this Court should grant the United States' Cross-Motion for Partial Summary Judgment and deny Cinemark's Second Motion for Summary Judgment.

Respectfully submitted,

WILLIAM R. YEOMANS

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

Disability Rights Section

__________________________

MARGARET L. BASKETTE

HEATHER A. WYDRA

JOHN A. RUSS IV

DANIEL I. WERFEL

Trial Attorneys

Disability Rights Section

Civil Rights Section

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 616-0330

Facsimile: (202) 307-1197

Counsel for Plaintiff United States of America

Dated: March 12, 2001