United States v. Cinemark USA

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Cinemark USA, Inc. No. 02-3100 ELECTRONIC CITATION: 2003 FED App. 0395P (6th Cir.) File Name: 03a0395p.06 APPELLATE SECTION, Washington, D.C., for Appellant. Laura M. Franze, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Dallas, Texas, for Appellee. ON BRIEF: UNITED STATES COURT OF APPEALS Gregory B. Friel, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, FOR THE SIXTH CIRCUIT APPELLATE SECTION, Washington, D.C., for Appellant. _________________ Laura M. Franze, M. Brett Burns, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Dallas, Texas, for Appellee. David UNITED STATES OF AMERICA , X K. Monroe, GALLAND KHARASCH GREENBERG Plaintiff-Appellant, - FELLMAN & SWIRSKY P.C., Washington, D.C., Jeffrey T. - Kubes, CRISHAM & KUBES, Chicago, Illinois, for Amici - No. 02-3100 Curiae. v. - > _________________ , CINEMARK USA, INC., - Defendant-Appellee. - OPINION _________________ N Appeal from the United States District Court ROGERS, Circuit Judge. The district court in this case for the Northern District of Ohio at Cleveland. granted summary judgment against the United States in its No. 99-00705—Donald C. Nugent, District Judge. suit against Cinemark USA, Inc. (Cinemark) under Title III of the Americans with Disabilities Act (ADA). The government Argued: June 20, 2003 alleged that Cinemark has violated the ADA by designing, constructing, and operating stadium-style movie theaters in a Decided and Filed: November 6, 2003 manner that discriminates against wheelchair-using patrons. Specifically, the government argued that Cinemark was not Before: DAUGHTREY and ROGERS, Circuit Judges; complying with the applicable Justice Department regulation, QUIST, District Judge.* ADAAG1 § 4.33.3, which requires that “[w]heelchair areas shall be . . . provided so as to provide people with disabilities _________________ . . . lines of sight comparable to those for members of the general public.” The district court held as a matter of law that COUNSEL Cinemark was in compliance because its theaters provided wheelchair patrons with unobstructed views of the movie ARGUED: Gregory B. Friel, UNITED STATES screen from wheelchair seating located amid or adjacent to DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION,

1 * The Department of Justice’s enabling regulations under the The Honorable Gordon J. Quist, United States District Judge for the Americans with Disabilities Act are the Am ericans with Disabilities Act W estern District of Michigan, sitting by designation. Accessibility G uideline s, com mon ly referred to as the “AD AAG.”

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seating for the general public. The government correctly sometimes forced to look up at the screen at sharp angles, argues that the “line of sight” aspect of its regulation does not resulting in severe discomfort and pain. According to the require merely that wheelchair users be provided unobstructed government, these and similar problems have made views of the movie screen, but instead requires in addition Cinemark’s stadium-style theaters effectively unusable by that the unobstructed views be “comparable” to those of other persons confined to wheelchairs. patrons. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings 2. Title III of the ADA and the Justice Department’s consistent with this opinion. Regulation, ADAAG § 4.33.34

BACKGROUND Disability-based discrimination in public accommodations is prohibited under Title III of the Americans with Disabilities 1. Cinemark’s Stadium-style Theaters Act, 42 U.S.C. § 12182. Title III generally requires that public accommodations designed and constructed “for first Cinemark constructs, owns, and operates movie theaters occupancy” after January 26, 1993,5 be “readily accessible to throughout the United States. In 1995, Cinemark began and usable by individuals with disabilities.” 42 U.S.C. constructing “stadium-style” movie theaters. Stadium-style § 12183(a)(1). Cinemark’s stadium-style movie theaters were theaters have a seating configuration that rises at a relatively built starting in 1995 and are therefore subject to Title III’s steep grade,2 typically making stadium-style sections of these requirements for new construction. theaters impossible to navigate by wheelchair-using patrons. In Cinemark’s stadium-style theaters, wheelchair placements Congress gave the Attorney General the responsibility to are generally located on a flat portion of the auditorium promulgate regulations implementing the provisions of Title approximately one-third of the way back from the screen. III of the ADA. See 42 U.S.C. § 12186(b). These regulations This placement is in the third row of fixed seating, with two must be consistent with the minimum guidelines issued by the rows of general public seating in front, and near the entrances Architectural and Transportation Barriers Compliance Board and exits to the theaters.3 Wheelchair placements are also (the “Access Board”). See 42 U.S.C. § 12186(c). In 1991, located on a flat portion in the rear of the auditorium in the Department of Justice (the “DOJ”) issued regulations, Cinemark’s theaters that seat 300 or more people. These known as the Standards for Accessible Design, which placements are accessed by elevators. Over 80 percent of the incorporated the Americans with Disabilities Act general seating in Cinemark’s stadium-style theaters is Accessibility Guidelines (“ADAAG”) promulgated by the located in the stadium section. Access Board. See 56 Fed. Reg. 35,546 (July 26, 1991); 28 C.F.R. 36.406(a); 28 C.F.R. Pt. 36, App. A. The ADAAG The government alleges that because of the placement of the wheelchair-accessible locations, wheelchair users are

4 2 Also referred to as “Stand ard 4 .33.3 ” or “§ 4.33 .3.” This grade is often greater than 5%. 5 3 The language of the statute reads: “failure to design and construct Cinemark stresses that this latter detail is of prime importance in the facilities for first occupancy later than 30 months after the date of event of an em ergency. enactment o f this Act [enacted July 2 6, 19 90].”

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were promulgated under the notice-and-comment procedures Code certification facilitates voluntary compliance by of the Administrative Procedure Act, 5 U.S.C. § 553 (1998). putting ADA requirements and local requirements into a single, readily available document. It allows builders to This appeal concerns one of DOJ’s regulations under Title rely on their local inspection and approval processes, and III of the ADA, known variously as Standard 4.33.3 or it ensures that accessibility will be routinely considered ADAAG § 4.33.3. This regulation provides that in “assembly in those processes. It allows builders to be assured of areas,” compliance through inspections early in the construction process, when mistakes can be corrected relatively easily Wheelchair areas shall be an integral part of any fixed and cost-effectively. It eliminates conflicts between local seating plan and shall be provided so as to provide requirements and ADA requirements. Finally, by people with physical disabilities a choice of admission incorporating ADA-equivalent accessibility provisions prices and lines of sight comparable to those for into the local code, certification gives building officials members of the general public. They shall adjoin an a significant role in enforcing the substance of the ADA. accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat J.A. at 154. Certification serves as “rebuttable evidence” that shall be provided next to each wheelchair seating area. a state law or local ordinance meets or exceeds the minimum When the seating capacity exceeds 300, wheelchair requirements of the ADA in a later federal enforcement spaces shall be provided in more than one location. proceeding, see 42 U.S.C. § 12188(b)(1)(A)(ii), and Readily removable seats may be installed in wheelchair compliance with a certified code is “rebuttable evidence” of spaces when the spaces are not required to accommodate compliance with Title III of the ADA. wheelchair users. The State of Texas has promulgated building codes related EXCEPTION: Accessible viewing positions may be to requirements under Title III of the ADA, known as the clustered for bleachers, balconies, and other areas having Texas Accessibility Standards (“TAS”). The TAS were sight lines that require slopes of greater than 5 percent. certified as meeting or exceeding federal accessibility Equivalent accessible viewing positions may be located requirements by the DOJ on September 23, 1996. Following on levels having accessible egress. this certification, the DOJ issued a press release which stated: 28 C.F.R. Pt. 36, App. A, § 4.33.3 (emphasis added). Builders in Texas who follow state building codes can be assured that they are complying with federal guidelines 3. The DOJ’s Certification of Local Accessibility Standards as well, now that the Justice Department has certified Texas codes as being in compliance with the Americans The Department of Justice is authorized under Title III of with Disabilities Act . . . . the ADA to certify that state or local accessibility standards meet or exceed the ADA Standards for Accessible Design. “Everyone in the state of Texas—builders, architects, The DOJ explained the advantages of this process in a business owners, and the general public—will benefit publication on its website entitled “Certification of State and from Texas’ new accessibility standards” . . . . Local Building Codes”: “Certification makes it easier to comply with the law.”

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. . . Builders will benefit from this new process because government requested a declaratory judgment stating that it ensures that construction which meets state codes Cinemark violated Title III of the ADA by designing, meets the requirements of the ADA. Builders will also constructing, and operating stadium-style movie theaters in a have additional legal protection in ADA lawsuits if they manner that discriminates against wheelchair-using patrons. build in compliance with the certified code. The government further requested that: (1) Cinemark be ordered to bring its present stadium-style movie theaters into J.A. at 153. The TAS includes a “Section 4.33.3,” which is compliance with Title III; (2) Cinemark be enjoined from modeled after the language of ADAAG § 4.33.3. Cinemark designing or constructing additional stadium-style theaters received certification of its compliance with TAS accessibility unless such theaters are in compliance with Title III; requirements for many of its stadium-style theaters built in (3) Cinemark be ordered to provide remedial relief, including Texas between 1995 and 1998. Cinemark relied upon this compensatory damages, to all individuals with disabilities certification of compliance when designing and building its who were discriminated against by Cinemark in violation of theaters in Texas and throughout the United States. Title III; and (4) Cinemark be assessed a civil penalty. 4. The Access Board’s New Notice of Proposed Rulemaking In December of 2000, Cinemark moved for summary judgment on all claims asserted by the government, On November 16, 1999, the Access Board published a new contending that all of its stadium-style theaters complied with Notice of Proposed Rulemaking in the Federal Register for Title III of the ADA and ADAAG § 4.33.3. The government public notice and comment. See 64 Fed. Reg. 62248, 62278 also moved for partial summary judgment on whether some (1999). The notice proposed modifications to ADAAG of Cinemark’s stadium-style theaters were in violation of § 4.33.3 not relevant here, but in a preamble to the proposed ADAAG § 4.33.3. On November 19, 2001, the district court revision, the Access Board noted that it was “aware” of DOJ granted Cinemark’s motion for summary judgment, denied attempts to enforce DOJ’s interpretation of ADAAG § 4.33.3 the government’s cross-motion, and entered final judgment through litigation, and stated that the Board was “considering for Cinemark. The district court held that, as a matter of law, whether to include specific requirements in the final rule that Cinemark’s stadium-style movie theaters complied with are consistent with DOJ's interpretation of 4.33.3 to ADAAG § 4.33.3 because they provided patrons that use stadium-style movie theaters.” Id. A new final rule has not wheelchairs with unobstructed views of the movie screen yet been adopted. from wheelchair seating located amidst or adjacent to seating for the general public, and this is all that was required under 5. Procedural History the plain language of that regulation. On March 24, 1999, the government sued Cinemark in the ANALYSIS United States District Court for the Northern District of Ohio, alleging that Cinemark had engaged in a pattern or practice of 1. Standard of Review discrimination in violation of Title III of the ADA, 42 U.S.C. 12181 et seq., and its implementing regulations. Specifically, We review a district court’s decision to grant summary the complaint alleged that many of Cinemark’s stadium-style judgment de novo. Thomas v. United States, 213 F.3d 927, theaters throughout the United States failed to comply with 929 (6th Cir. 2000). The moving party has the burden of ADAAG § 4.33.3, 28 C.F.R. Pt. 36, App. A, § 4.33.3. The establishing that there are no material factual disputes, and

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that it is entitled to judgment as a matter of law. Id. There doubtless include viewing angle.6 Several district courts have are no factual disputes in the present appeal; therefore, come to precisely this conclusion. See United States v. Hoyts resolution of this case depends on our determination of what Cinemas Corp., 256 F.Supp.2d 73, 88 (D.Mass. 2003) is required under the plain meaning of ADAAG § 4.33.3 and (relying upon federal district court decisions in New York and whether the DOJ’s interpretation of ADAAG § 4.33.3 is California to conclude that “viewing angles are truly the only reasonable and entitled to deference as a matter of law. operative way of measuring whether the line of sight offered Because the plain meaning of ADAAG § 4.33.3 requires more by a seat is ‘comparable’ to those offered to the general than merely unobstructed views of the movie screen, we public”). And the Ninth Circuit has recently held that it was reverse the judgment of the district court and remand for reasonable for the DOJ to interpret “comparable line of sight” further proceedings consistent with this opinion. The to encompass factors such as viewing angle. Oregon alternative grounds asserted by Cinemark, moreover, do not Paralyzed Veterans of America v. Regal Cinemas, 339 F.3d require affirmance of the district court’s judgment. 1126, 1132-33 (9th Cir. 2003). 2. ADAAG § 4.33.3 Does Not Require Merely That Moreover, as argued by the government, interpreting the Wheelchair-using Patrons Have Unobstructed Views of “lines of sight” portion of ADAAG § 4.33.3 to require that the Movie Screen wheelchair users be provided with comparable viewing angles, not just an unobstructed view of the movie screen, The regulation at issue appears plainly to require that furthers the central goals of Title III of the ADA. The ADA wheelchair patrons have something more than a merely fundamentally requires that “[n]o individual shall be unobstructed view in seating adjacent to other patrons. While discriminated against on the basis of disability in the full and we agree that “line of sight” can be defined as unobstructed equal enjoyment of the goods, services, facilities, privileges, view, the regulation requires more than “lines of sight” for advantages, or accommodations of any place of public wheelchair patrons. It requires comparable lines of sight. accommodation.” 42 U.S.C. § 12182(a). The thrust of that While the word “comparable” can mean “capable of being mandate leads us to conclude that the term “lines of sight compared,” such an interpretation would give the word no comparable to those for members of the general public” substantive content in this context. The other—obviously requires that wheelchair users be afforded comparable intended—meaning of “comparable” is “similar.” Thus, in viewing angles to those provided for the general public. Only ordinary parlance, if the prices at one store or restaurant are ten times those of a competitor, one would not say that the prices are “comparable,” even though they can obviously be 6 Treatises cited by the government support the contention that within compared. See MERRIAM -WEBSTER ’S COLLEGIATE the field of theater design, “lines of sight” are compared on the basis of DICTIONARY 234 (10th ed. 1997) (definitions for viewing angles. See George C. Izenour, T HEATER D E S IG N 3-4, 284 “comparable” include “similar, like” as in “fabrics of (1977); Harold Burris-M eyer & Edward C. Cole, T H E A T E R S A N D A U D IT OR IU M S 68-69 (2d ed. 1964). Cinemark argues in response that the comparable quality”). DOJ has waived its right to rely on such treatises because it did not present them to the district court below. To the extent that the treatises The regulation thus is plain in its requirement that the reflect the meaning of the term “com parable lines of sight,” we may refer wheelchair lines of sight be similar, or at least roughly to them just as appropriately as we would refer, say, to a dictiona ry that similar, to those of other patrons. The criteria for evaluating was not cited below. The treatises give some suppo rt to the go vernm ent’s similarity, moreover, while not explicit in the regulation, contended meaning of “comparable lines of sight,” and we do not rely upon them for anything mo re than that.

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then will wheelchair users have “equal enjoyment” with the DOJ has asserted in attempting to settle particular cases general public. Under the district court’s interpretation, a that wheelchair seating locations [in stadium-style wheelchair-using patron could be relegated to the worst seats theaters] must: (1) be placed within the stadium-style in the theater (assuming it was still among some seats for the section of the theater . . .; (2) provide viewing angles that general public), so long as the disabled patron still had an are equivalent or better than the viewing angles . . . “unobstructed view” of the screen. This does not comport provided by 50 percent of the seats in the auditorium, with the “full and equal enjoyment” language of Title III, nor counting all seats of any type sold in that auditorium; and does it seem likely that this is all the DOJ and the Access (3) provide a view of the screen, in terms of lack of Board were attempting to guarantee for disabled persons obstruction . . . that is in the top 50 percent of all seats of when they formulated ADAAG § 4.33.3. A more reasonable any type sold in the auditorium. The Board is considering interpretation of ADAAG § 4.33.3, given the purpose of Title whether to include specific requirements in the final rule III, is that the DOJ and the Access Board intended to assure that are consistent with the DOJ's interpretation of 4.33.3 disabled patrons seats of “comparable” quality to those to stadium-style movie theaters. 64 Fed. Reg. at 62278. provided for members of the general public. See Lara, 207 F.3d at 788. Immediately preceding the Cinemark urges us to uphold the district court’s very language cited by the Fifth Circuit, however, the Access different understanding of the “line of sight” regulation. That Board stated: understanding is based on the Fifth Circuit’s holding in Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000). The As stadium-style theaters are currently designed, patrons Lara court rejected the contention that “the phrase ‘lines of using wheelchair spaces are often relegated to a few rows sight comparable’ requires anything more than that theaters of each auditorium, in the traditional sloped floor area provide wheelchair-bound patrons with unobstructed views of near the screen. Due to the size and proximity of the the screen.” 207 F.3d at 789. Accordingly, the Fifth Circuit screen, as well as other factors related to stadium-style held that in the absence of a more specific regulation, design, patrons using wheelchair spaces are required to ADAAG § 4.33.3 “does not require movie theaters to provide tilt their heads back at uncomfortable angles and to disabled patrons with the same viewing angles available to constantly move their heads from side to side to view the the majority of non-disabled patrons.” Id. screen. They are afforded inferior lines of sight to the screen. The arguments relied upon by the Fifth Circuit in Lara are, however, in the end not persuasive. First, the Lara court 64 Fed. Reg. at 62278. This passage notes that wheelchair- noted that “questions regarding ‘viewing angle’ did not arise using patrons are afforded “inferior lines of sight” because the until well after the DOJ promulgated section 4.33.3.” 207 close proximity to the screen of the wheelchair placements F.3d at 788. The Lara court found it significant that the causes their viewing experience to be uncomfortable. It Access Board, in proposing to modify § 4.33.3, proposed to demonstrates that lines of sight have a qualitative aspect: lines define “line of sight” problems in the context of obstructed of sight can be “inferior,” not simply obstructed or views, and recognized that “additional language would be unobstructed. necessary to codify the DOJ’s litigating position.” Id. The Fifth Circuit quoted the Access Board as follows: In addition, the language cited by the Fifth Circuit does not definitively support the conclusion that the Access Board

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acknowledged that additional language will be necessary to Since Lara was decided, the Ninth Circuit and several codify the DOJ’s litigating position. The Access Board district courts have rejected its reasoning. See Or. Paralyzed explained that “[t]he Board is considering whether to include Veterans of Am. v. Regal Cinemas, 339 F.3d 1126, 1132-33 specific requirements in the final rule that are consistent with (9th Cir. 2003) (reversing Or. Paralyzed Veterans of Am. v. DOJ's interpretation of 4.33.3 to stadium-style movie Regal Cinemas, Inc., 142 F. Supp. 2d 1293 (D. Or. 2001); theaters.” 64 Fed. Reg. 62278 (emphasis added). The United States v. Hoyts Cinemas Corp., 256 F.Supp.2d 73, 84- inclusion of the word “specific” implies that although the 89 (D. Mass. 2003); Meineker, 216 F. Supp. 2d at 17, United Board might think that the present language of ADAAG States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1110-12 § 4.33.3 is broad enough to include the DOJ’s interpretation, (C.D. Calif. 2002). it is considering whether to make these requirements explicit in the final rule. The language of the Access Board with Our conclusion that the plain meaning of “lines of sight regard to the proposed modification of ADAAG § 4.33.3 at comparable to those for members of the general public” least equally supports an interpretation of that section that requires more points of similarity than merely an includes a qualitative element in the comparable “lines of unobstructed view is further supported by DOJ’s sight” analysis. interpretation of ADAAG § 4.33.3. As a general matter, deference should be given to an agency’s interpretation of a Second, the Fifth Circuit noted that although “the phrase regulation when the agency has been given responsibility to ‘lines of sight’ lacked a clear meaning in the ADA context, it issue regulations under the statute in question, to explain the is clear that in a number of other contexts, the phrase meant responsibilities of those concerned under the statute, and to unobstructed view.” Id. at 788. The Fifth Circuit cited three enforce the statute in court. See Bragdon v. Abbott, 524 U.S. other, unrelated regulations that use “line of sight” to mean 624, 646 (1998). The DOJ has these responsibilities in this unobstructed view, including a Federal Communications context. See 42 U.S.C. § 12186(b); 42 U.S.C. Commission regulation requiring that antennae have line of § 12188(b)(1)(B). When an agency is interpreting its own sight, without obstruction, of the communities that they serve. regulations, even greater deference is due to the agency’s Id. The fallacy of this argument is that ADAAG § 4.33.3 interpretation. See United States v. Midwest Suspension & does not just require that wheelchair patrons have “lines of Brake, 49 F.3d 1197, 1203 (6th Cir. 1995). Therefore, the sight.” They must be afforded comparable lines of sight. DOJ’s interpretation should be upheld unless it is “plainly That requirement is perfectly consistent with interpreting erroneous or inconsistent with the regulation.” Auer v. “line of sight” to mean unobstructed view. The holding of the Robbins, 519 U.S. 452, 461 (1997). To be sure, we are not Fifth Circuit in Lara effectively ignored the phrase required to defer to the DOJ’s interpretation if an “alternative “comparable to those for members of the general public,” and reading is compelled by the regulation's plain language or by in so doing failed to take sufficiently into account the purpose other indications of the [DOJ’s] intent at the time of the of Title III of the ADA. The phrase, in the Fifth Circuit’s regulation's promulgation.” Thomas Jefferson Univ. v. interpretation, would be reduced to meaning simply a Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v. “similarly unobstructed” view.” See Meineker v. Hoyts Jenkins, 485 U.S. 415, 430 (1988)). The Supreme Court has Cinemas Corp., 216 F. Supp. 2d 14, 18 (N.D.N.Y. 2002), also indicated that deference to an agency’s “convenient vacated and remanded on other grounds, 2003 U.S. App. litigation position” would be “entirely inappropriate” where LEXIS 13411 (2d Cir. 2003). This does not give sufficient the agency’s position is contrary to the view advocated by the meaning to the regulation. agency in past cases and is not “reasoned and consistent.”

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Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213 therefore conclude that the district court erred in holding that (1988); see Auer, 519 U.S. at 462 (contrasting an agency’s ADAAG § 4.33.3 merely required unobstructed views of the “post hoc rationalization” with a “fair and considered movie screen. We therefore reverse the judgment of the judgment”) (internal quotation marks omitted). The DOJ district court and remand for further proceedings in position in this case is neither plainly erroneous nor accordance with this opinion. inconsistent with the regulation. Nor is it inconsistent with views advocated by DOJ in earlier cases. 3. The Alternative Grounds Advanced by Cinemark on Which to Affirm the Judgment of the District Court are The DOJ argues that the “lines of sight comparable” Unpersuasive. portion of ADAAG § 4.33.3 includes a consideration of the quality of the viewing angle of the movie screen. This is Cinemark advances several alternative grounds that it consistent with our conclusion that the plain meaning of argues require us to affirm the judgment of the district court. ADAAG § 4.33.3 requires that there be greater points of These grounds are (1) that the DOJ’s interpretation of commonality between lines of sight than that the lines of sight ADAAG § 4.33.3 amounts to a new substantive rule in share an unobstructed view; in order to be comparable, viewing angles must also be taken into account to some degree. Since this DOJ interpretation is consistent with the defendant by a plaintiff having the same interests as [the plaintiff plain meaning of the regulation, it is entitled to deference. in the current case] is a reason for the district court in the present See Auer, 519 U.S. at 461. case to have given serious considera tion to the [previous] decision—b ut not a reason to invoke stare decisis and give the We leave it to the district court on remand to determine the decision complete deference automatically, as the [lower] court extent to which lines of sight must be similar for wheelchair appears to have done . . . . W here different ou tcomes would patrons in stadium-style theaters, but hold that the plain place the defendant under inconsistent legal duties, the case for the second co urt's not going into conflict with the first is meaning of “lines of sight comparable to those for members particularly strong. A conflict would place the defendant in an of the general public” clearly requires more points of impo ssible position unless the Supreme Court agreed to hear the similarity than merely an unobstructed view. In short, we case . . . . disagree with the reasoning of the Fifth Circuit in Lara,7 and Id. at 1124. As this quote makes clear, automatic deference to the decision of another circuit is not required, although there m ay be strong 7 reasons for deference when to decide o therwise would subject a party to Cinemark, citing Colby v. J.C. Penney Co., 811 F.2d 1 119 (7th Cir. inconsistent legal duties. However, the “inconsistent legal obligations” 1987), also asserts that this court should give deference to the decision of that Cinem ark will suffer from in this case do not appear to be the Lara court and follow that holding because to do o therwise would insurmountable: any cha in of stores that extends across state lines is subject Cinemark to inconsistent legal obligations. In Colby the Seventh subject to the different building codes of the vario us states in which it Circuit stated: chooses to build a store (and probably to a variety of different local ordinances at each location as well) . This is not such an “impossible A posture somewhere in be tween some deference and comp lete position” as defendant would lead us to believe. deference is prop er whe n cases in different circuits challenge the same practice of the same defendant, particularly if different In any eve nt, this consideration is insufficient to require us to change outcomes would place the defendant under inconsistent our interpre tation of ADAAG § 4.33 .3, particularly no w that the Ninth obligations . . . . [T]he fact that [a previous] case involved the Circuit has already created a split in the circuits on that legal issue in Or. identical issue in a lawsuit brought against the identical Paralyzed Veterans of Am. v. Regal Cinemas.

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circumvention of the Administrative Procedure Act’s (the administrative agency.’” Id. at 293 (quoting SEC v. Chenery, “APA’s”) notice and comment requirements; (2) that the 332 U.S. at 203).8 government should be estopped from arguing for its interpretation of ADAAG § 4.33.3 because it approved the In the instant case the enforcement action is either TAS, which Cinemark’s theaters were built in compliance warranted by the statute and the regulation or it is not. Since with; (3) that the government is precluded under the doctrine the action is so warranted, then (under Chenery and Bell of collateral estoppel from re-litigating issues that it Aerospace) nothing in the APA requires additional previously litigated unsuccessfully against Cinemark in Lara; rulemaking. But even if the action were not warranted, then and (4) that at the very least summary judgment should be enforcement should be denied on that ground alone, and any given to Cinemark with regard to its theaters in the Fifth APA notice-and-comment argument would be surplusage. Circuit. None of these arguments provide alternative support for the district court’s grant of summary judgment. B. Estoppel

A. The APA’s Notice and Comment Requirements Cinemark also asserts that the government should be estopped from asserting a “new” interpretation of ADAAG Cinemark asserts that the DOJ’s interpretation of ADAAG § 4.33.3 that invalidates approvals given pursuant to TAS, § 4.33.3 mandates new substantive requirements without given that TAS was certified by the DOJ as “meeting or undergoing notice and comment as required by the exceeding” the requirements of the ADA and Cinemark relied Administrative Procedure Act, 5 U.S.C. § 553. According to Cinemark, the DOJ’s attempt to introduce a new quantitative 8 viewing angles requirement imposes new obligations on Mo reover, even if the government’s litigating position in the instant theater construction, obligations that were not required under enforcement action were co nsidered a “rule” subject to the APA, the the plain meaning of ADAAG § 4.33.3, and therefore this exception to the notice-and-comment requirement for interpretive rules would apply. 5 U.S.C. § 553 (b)(A). We have recognized the distinction requirement should have been implemented through the between interp retive and substantive (or legislative) rules as follows: APA’s notice-and-comment procedures. A legislative rule is one that “has the force of law,” while an This argument runs against a long-settled principle of interpretive rule is “merely a clarification or explanation of an federal administrative law. An agency’s enforcement of a existing statute or rule” and is “‘issued by an agency to advise general statutory or regulatory term against a regulated party the public of the agency's construction of the statutes and rules which it administers.’” Guardian Fed. Sav. & Loan v. Fed. Sav. cannot be defeated on the ground that the agency has failed to & Loan Ins. Corp ., 191 U.S. App. D.C. 135, 589 F.2d 658, promulgate a more specific regulation. See SEC v. Chenery 664-65 (D.C .Cir. 1978) (quoting U.S. Department of Justice, Corp., 332 U.S. 194, 201 (1947); NLRB v. Bell Aerospace Attorney General's Manual on the Administrative Procedure Act Co., 416 U.S. 267 (1974). “‘The choice made between 30 n.3 (1947 )). Legislative rules “grant rights, impose proceeding by general rule or by individual, ad hoc litigation obligations, or produce other significant effects on priva te interests,” while interpretive rules do not “foreclose alternative is one that lies primarily in the informed discretion of the courses of action or conclusively affect rights of private parties.”

Ohio D ep’t of Human Servs. v. Dept. of HHS, 862 F.2d 128 8, 12 33 (6th Cir. 1988). T he governme nt here is not even arguably relying upon the effect of its litigating position as independently substantively binding. Instead, it is arguing on the basis of its interpretation of ADAAG § 4.33.3.

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upon these approvals.9 Of course, with the possible exception NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir. of “affirmative misconduct,” equitable estoppel does not run 1966) (citations omitted). Cinemark’s reliance on TAS and against the government. E.g., Schweiker v. Hanson, 450 U.S. the government’s statements with respect to the state building 785 (1981). On the other hand, due process concerns may code certification process weigh strongly in favor of making warrant denial of enforcement of an agency determination any relief that the district court grants the government on when conduct previously approved by a regulatory agency is remand apply only on a prospective basis. We do not go so retroactively branded as a statutory violation. As Judge far as to hold that any relief must be prospective to comport Friendly colorfully expressed in the labor relations context: with due process, but note that, given the following facts, prospective relief will often be most appropriate. Although courts have not generally balked at allowing administrative agencies to apply a rule newly fashioned The DOJ stated in numerous publications that approval in an adjudicative proceeding to past conduct, a decision given pursuant to state or local ordinances such as TAS branding as “unfair” conduct stamped “fair” at the time constituted “rebuttable evidence” that the building was in a party acted, raises judicial hackles considerably more compliance with the ADA. See 42 U.S.C. 12188(b)(1)(A)(ii); than [for instance, imposing a more severe remedy for J.A. at 154. Even in the DOJ’s press release announcing conduct already prohibited]. And the hackles bristle still certification for TAS, the DOJ stated that “[b]uilders will also more when a financial penalty is assessed for action that have additional legal protection in ADA lawsuits if they build might well have been avoided if the agency’s changed in compliance with the certified code.” J.A. at 153. The disposition had been earlier made known, or might even word “additional” is consistent with the other statements have been taken in express reliance on the standard issued by the DOJ that compliance with TAS constitutes previously established. “rebuttable evidence” that the theater was in compliance with the ADA. This is not incontrovertible evidence; instead, it gives a presumption in favor of the builder, but that presumption may be overcome. 9 In its amicus brief, the A merican Institute of Arc hitects (the “AIA”) Because the DOJ’s statements said that the certification of argues that reliance on state or local standards such as TAS that have been the state or local building ordinances was not something upon certified by the DOJ should shield a builder from liability. Its stated which the builder could completely rely, the district court motivation in making this argument is to shield architects from liability that could result if the DOJ later finds that a theater is not in compliance should not be altogether barred from ordering some kind of with the ADA and the theater owner brings suit against the architect. The remedial measures for existing facilities if the facts warrant AIA argues that the certification process is a sensible way in which such relief. The DOJ’s statements also imply, however, that architects can determine in advance which designs are in compliance with a cinema builder should be able to rely—at least to some the AD A, given the lack of clarity in the current regulations. According degree—on the approval of their building plans by state or to the AIA, it has no interest in what the substantive requirements of the ADA are; it simply wishes to have a process by which architects can make local inspectors that were certified by the DOJ. The phrases certain that their plans comply with the ADA. Although we do not “rebuttable evidence”and “additional legal protection” question the wisdom of such a process, we have no power to create such indicate that a builder and the owner should have some a process where the legislature and the executive have not taken sufficient measure of protection from an enforcement action by the steps to do so. Contrary to the AIA’s assertion, the D OJ has expressly government. The government has assured us that any stated that certification is not a process on which architects can com pletely rely. remedial measures they will request on remand will take into

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account the cost and feasibility that implementation of the Limited remedial measures such as those proposed by the measures would require, and that it would “work with DOJ at oral argument would fulfill the ADAAG § 4.33.3 [Cinemark] to come up with a reasonable approach.”10 requirement that wheelchair placements have “lines of sight comparable to those for members of the general public,” but would also comport with due process by allowing Cinemark 10 to rely on the approval of the TAS where that reliance was At oral argument, the attorney from the DOJ stated that “I wan t to make very clear to the court, we have emphasized repeatedly the United reasonable in light of ADAAG § 4.33.3. In short, in States is not— has no t and is no t going to argue, for example, that the fashioning any remedy the district court, as a court of equity, entire interior of the theater be gutted or torn down. We are going to can take into account previous advice and representations by work with the defendants to come up with a reaso nable app roach.” the government upon which Cinemark or this court reasonably relied. In response to a question from the court as to “the earliest date that the government . . . let the theater designers, owners, builders know that the government was taking the position that lines of sight included angles C. Collateral Estoppel of viewing,” DOJ counsel responded, “as far as a widely published doc ument, it was the Lara brief filed in a district court in Texas in July of Collateral estoppel does not bar the government from 199 8.” bringing this action against Cinemark. Cinemark contends that the government is precluded under the doctrine of DOJ counsel also acknowledged that there will be hard cases in collateral estoppel from relitigating issues against Cinemark which reasonable peo ple will disagree about whether a wheelchair position is comparable to where most people sit. DOJ counsel stated that that it and others previously litigated unsuccessfully against Cinemark in Lara. The Sixth Circuit has established a in those situations, it is appropriate for a district judge to take four-part test for determining whether and when collateral into account notice and due process concerns in deciding estoppel bars relitigation of an issue: whether there were any rem edy. But what I’m saying is just because there are cases in some situations does not mean you 1) the precise issue raised in the present case must have can’t order relief for situations where there’s a clear violation where they are all in the front row. been raised and actually litigated in the prior proceeding;

DOJ counsel further emphasized that “we’re not going to ask for an 2) determination of the issue must have been necessary extreme remedy, because what has been suggested is that we’re talking to the outcome of the prior proceeding; about gutting these theaters, and we understand as a practical matter once theaters are built, even though we believe some remedy is required, if in 3) the prior proceeding must have resulted in a final fact it’s just—would essentially eliminate half the seats as [opposing counsel] would put in a ramp— we’re not going to propose that as a judgment on the merits; and reme dy.”

In response to a question from the court regarding whether wheelchair seating would have to be placed in the middle of the stadium seating instead of in the front of the stadium, perhaps thereby requiring an elevator to be put in, DOJ counsel responded: “where you have an that we’ve seen, if the wheelchair space was up on the first row of that elevated stadium section, certainly I think getting the wheelchair up to the elevated sec tion, I think, as a rem edial m atter, we would be satisfied.” first row of the stadium section, not the traditional style, would dram atically improve the experiences for people in wheelchairs.” DOJ Our holding in this case assumes that the DO J will stand by these counsel subsequently indicated that “[f]or the typical stadium-style theater representations.

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4) the party against whom estoppel is sought must have Cinemark asserts that the government’s actions in this case had a full and fair opportunity to litigate the issue in the amount to the extraordinary circumstances discussed in prior proceeding. Montana. Specifically, Cinemark asserts that the government went beyond the role of neutral friend of the court by Aircraft Braking Sys. Corp. v. Local 856, Int'l Union, 97 F.3d asserting a new substantive claim, by introducing new 155, 161 (6th Cir. 1996). The first three parts of this test are evidence, by filing a second brief, by submitting responses in not contested in the present appeal. The government does opposition to Cinemark’s motions, and by taking part in oral contest the fourth prong, however, asserting that its role as an arguments before both the district court and the Fifth Circuit. amicus curiae in Lara was not sufficient to satisfy this test. The government, in response, contends that it did not assert As a general matter, amicus participation does not trigger a claim against Cinemark, nor did its attaching a report to its collateral estoppel. See United States v. Michigan, 940 F.2d amicus brief constitute the submission of new evidence. It 143, 165 (6th Cir. 1991). Nevertheless, the Supreme Court further argues that in its opposition to Cinemark’s motion to has found that in some extraordinary cases a party may be compel discovery from the DOJ, it emphasized that its role as barred by collateral estoppel for its earlier role as an amicus a non-party and as amicus was limited to providing the court curiae. See Montana v. United States, 440 U.S. 147 (1979). with the Department of Justice’s interpretation of its own In that case the government went beyond merely filing an regulations. Finally, the government notes that it opposed amicus brief, but also “totally financed and controlled” the Cinemark’s motion for a scheduling order amendment that litigation. United States v. Mendoza, 464 U.S. 154, 159 n.5 would have permitted Cinemark to seek to add the DOJ as a (1984).11 party. Although the government’s actions in Lara might have been more than that of a typical amicus curiae, they are still a far cry from having “totally financed and controlled” the 11 litigation. Mendoza, 464 U.S. at 159 n.5. The government The Supreme Co urt in Montana noted that it was undisputed that the United States exercised control over the earlier litigation in which it was therefore not collaterally estopped in this case. had been an am icus. 440 U .S. at 155. In particular, the government had stipulated that it had: D. Summary Judgment for Cinemark’s Theaters that are Within the Fifth Circuit (1) required the [earlier] lawsuit to be filed; (2) reviewed and approved the comp laint; (3) paid the attorneys’ fees and costs; Finally, Cinemark argues that the government’s assertion (4) directed the appeal from State D istrict Court to the Mo ntana of claims with a national scope ignores that Lara is Supreme Court; controlling authority in the Fifth Circuit and that the (5) appeared and submitted a brief as amicus in the Montana Supreme government cannot ask the Sixth Circuit to overturn precedent Court; as applied to theaters within the Fifth Circuit’s jurisdiction. (6) directed the filing of a no tice of appeal to [the Sup reme ] Court; and Cinemark therefore urges this court to affirm the district (7) effectuated [the named party’s] abandonment of that appeal on court’s decision granting summary judgment as to all of advice of the Solicito r General. Cinemark’s stadium-style theaters that are within the jurisdiction of the Fifth Circuit. Id.

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This pertains to the scope of relief, and therefore is a matter for the district court to decide consistent with the principles of comity. The government has stated in its brief that it will not make any demands with regard to Cinemark’s theaters that are within the Fifth Circuit until such time as the law might change within that circuit. Therefore, we need not address this issue at the present time. CONCLUSION Because the district court erred in holding that ADAAG § 4.33.3 requires only that theaters provide disabled patrons with unobstructed views of the screen and failed to give meaning to the word “comparable” in ADAAG § 4.33.3, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.