           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.”

                                   1
No. 02-3100            United States v. Cinemark USA, Inc.                 3    4         United States v. Cinemark USA, Inc.                   No. 02-3100

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].”
No. 02-3100       United States v. Cinemark USA, Inc.          5   6      United States v. Cinemark USA, Inc.         No. 02-3100

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.”
No. 02-3100       United States v. Cinemark USA, Inc.            7   8    United States v. Cinemark USA, Inc.         No. 02-3100

     . . . 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
No. 02-3100       United States v. Cinemark USA, Inc.        9    10       United States v. Cinemark USA, Inc.               No. 02-3100

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.
No. 02-3100       United States v. Cinemark USA, Inc.       11    12    United States v. Cinemark USA, Inc.            No. 02-3100

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
No. 02-3100        United States v. Cinemark USA, Inc.       13    14   United States v. Cinemark USA, Inc.          No. 02-3100

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.”
No. 02-3100           United States v. Cinemark USA, Inc.                  15   16     United States v. Cinemark USA, Inc.                     No. 02-3100

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.
No. 02-3100       United States v. Cinemark USA, Inc.      17    18       United States v. Cinemark USA, Inc.                 No. 02-3100

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.
No. 02-3100           United States v. Cinemark USA, Inc.                19     20   United States v. Cinemark USA, Inc.          No. 02-3100

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
No. 02-3100            United States v. Cinemark USA, Inc.                21     22     United States v. Cinemark USA, Inc.                 No. 02-3100

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.
No. 02-3100           United States v. Cinemark USA, Inc.               23     24   United States v. Cinemark USA, Inc.         No. 02-3100

  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.
No. 02-3100        United States v. Cinemark USA, Inc.        25

  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.
