UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, §

§ CIVIL ACTION NO.1:99CV-705

Plaintiff §

§ Hon. Donald C. Nugent

v\. §

§ **REPLY MEMORANDUM OF LAW**

CINEMARK USA, INC., § **IN FURTHER SUPPORT OF**

§ **PLAINTIFF UNITED STATES'**

Defendant. § **CROSS MOTION FOR PARTIAL**

§ **SUMMARY JUDGMENT**

§

§

**REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF**

**[UNITED STATES' CROSS MOTION FOR PARTIAL SUMMARY
JUDGMENT]{.underline}**

**Table of Contents**

Table of Authorities iv

I. INTRODUCTION 1

II\. ARGUMENT 2

> A. Cinemark Violates the Plain Meaning of Section 302 by Offering an
> Enhanced\
> and Superior Movie-Going Experience to the General Public, but Failing
> to\
> Make That Experience Available to Persons Who Use Wheelchairs. 4
>
> B. Cinemark Misconstrues the Plain Meaning of Section 303\
> and Standard 4.33.3 9
>
> 1\. The Integration Requirement in Standard 4.33.3\
> Requires More than Companion Seating 10
>
> 2\. The Requirement to Provide Persons Who Use Wheelchairs with
> Comparable Lines of Sight Is an Independent and Separate\
> Requirement from the Dispersal Requirement 13
>
> C. Cinemark Misapplies Relevant Deference Standards 16
>
> 1\. Deference to a Federal Agency's Interpretation of its Own\
> Regulation Is Generally Encouraged and Is Mandated Where\
> A Regulation Is Ambiguous 16
>
> 2\. There Is No "Heightened Deference" to the Fifth Circuit 19
>
> 3\. Deference to the Fifth Circuit's Flawed Analysis in
> [Lara]{.underline}\
> Is Unwarranted 21
>
> D. Cinemark's So-Called "Evidence" of Local Approvals Does\
> Not Preclude United States Enforcement of the ADA 22
>
> E. Neither the Doctrine of Mutual Collateral Estoppel Nor the
> Doctrine\
> of Non-Mutual Collateral Estoppel Bars the United States' Claims 26
>
> F. Cinemark's APA Defense Fails Because No Final Agency Action Exists
> 28
>
> G. The Fifth Circuit's Decision in [Lara]{.underline} Does Not
> Deprive\
> This Court of the Authority to Reach an Independent\
> Decision on the Legal Issues Involved in this Case 30

III\. CONCLUSION 31

**I. INTRODUCTION**

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

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

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

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

**II. ARGUMENT**

Although Defendant Cinemark USA, Inc. ("Cinemark") has clouded the
record with irrelevant disputed facts, the Court need only consider a
limited number of material undisputed facts in order to resolve the
United States' motion for partial summary judgment.[^2] The undisputed
evidence shows that:

-   At least forty-nine (49) of Cinemark\'s stadium-style theater
    complexes have auditoriums with two types of seating: stadium-style
    seating, which is elevated on risers, and tradition or
    non-stadium-style seating, which is located on the sloped floor
    section of the auditorium and not on risers. Plaintiff United
    States' Statement of Undisputed Material Facts in Support of its
    Cross Motion for Partial Summary Judgment ("U.S. Facts") at 8.[^3]

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

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

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

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

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

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

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

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

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

The mandate of section 302 -- to provide persons who use wheelchairs
with the full and equal enjoyment of a good, service, or accommodation
-- cannot be ignored merely because one of the distinguishing
characteristics of a good, service, or accommodation entails an
architectural component. Although Cinemark allows individuals with
disabilities to enter its theaters, it denies these individuals the
opportunity to participate in, and benefit from, the enhanced
movie-going experience offered by the stadium-style seating. The plain
reading of section 302 and the broad remedial goals of the ADA prohibit
Cinemark from denying individuals with disabilities access to, or
enjoyment of, the enhanced movie-going experience that it normally
offers to the public.

Moreover, Cinemark ignores the fact that sections 302 and 303 of the ADA
are independent and distinct provisions, with independent obligations
and liabilities. A cardinal principle of statutory construction gives
effect "if possible, to every clause and word of a statute.\" [United
States v. Menasche]{.underline}, 348 U.S. 528, 538-539 (1955); [see
also]{.underline} [Moskal v. United States]{.underline}, 498 U.S. 103,
109-110 (1990). A statute should not be read to render a portion of the
statute meaningless. [See]{.underline} [Colautti v.
Franklin]{.underline}, 439 U.S. 379, 392 (1979); [Cafarelli v.
Yancy]{.underline}, 226 F.3d 492, 499 (6^th^ Cir. 2000). Section 302(a)
bars a public accommodation from discriminating on the basis of
disability in the "full and equal enjoyment" of goods, services and
accommodations that it provides to the general public. [See]{.underline}
42 U.S.C. § 12182(a). Section 302(b) defines a variety of acts and
omissions that constitute discrimination for purposes of section 302(a),
including the imposition of discriminatory eligibility criteria, the
prohibition of offering separate or different goods and services, the
failure to modify policies and practices, the failure to provide
auxiliary aids and services, the failure to remove architectural
barriers, the failure to provide public accommodation in the most
integrated setting, and others. [See]{.underline} 42 U.S.C. §
12182(b)(1)(2).

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

The case cited by Cinemark does not support its claim that compliance
with section 303 is sufficient to comply with all of Title III, and is
readily distinguishable here. In [Caruso v. Blockbuster-Sony Music
Entertainment Centre]{.underline}, 968 F. Supp. 210, 211-12 (D.N.J.
1997), [aff'd in part]{.underline}, [rev'd in part]{.underline},174 F.3d
166 (3^d^ Cir.), [opinion vacated and superceded on panel
reh'g]{.underline}, 193 F.3d 730 (3d Cir. 1999), plaintiffs alleged
violations of the ADA for failure to provide persons who use wheelchairs
with unobstructed lines of sight over standing spectators in a large
music and entertainment facility. [Caruso]{.underline} is inapposite --
the court's decision centered on its holding that it should not defer to
the Department's Technical Assistance Manual on the question of sight
lines over standing spectators when it found (incorrectly, in our view)
that there was a specific contrary regulatory history of interpretation.
[See]{.underline} [Caruso]{.underline}, 968 F. Supp. at 215-16. Such is
not the case here. The [Caruso]{.underline} opinion does not stand for
the sweeping proposition that section 302 is inapplicable in determining
ADA violations where an accommodation has an architectural and design
component. The court only briefly discusses the "full and equal
enjoyment" language of the statute, and did not address the more
specific provisions in section 302(b), such as integrated setting and
equal access to accommodations and services. [See]{.underline}
[id.]{.underline} at 216.

Cinemark next argues that Section 302 does not require that individuals
with disabilities be provided an identical experience as members of the
general public, nor does it require entities to change the goods or
services it normally offers the general public. Cinemark Opp'n at 14-15
(relying on [McNeil v. Time Ins. Co.]{.underline}, 205 F.3d 179 (5^th^
Cir. 2000), [cert. denied]{.underline}, 2001 WL 178218 (Feb. 26, 2001)
and [Doe v. Mutual of Omaha Ins. Co.]{.underline}, 179 F.3d 557, 560
(7^th^ Cir. 1999), [cert. denied]{.underline}, 528 U.S. 1106 (2000)).
However, the United States does not contend that Cinemark must do either
of these things. Cinemark's reliance on [McNeil]{.underline} and
[Doe]{.underline} demonstrates its misunderstanding of the United
States' position as well as the goals, purpose, and scope of section
302.

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

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

The fact that members of the general public also sit in the traditional
sloped-floor seating section does not bring wheelchair seating located
in this section into compliance with the "equal enjoyment" mandate of
section 302. The test is whether individuals who use wheelchairs are
deprived of the superior experience that Cinemark normally offers to the
general public. The majority of seats (80.7%) in Cinemark's theaters are
in the stadium-style section elevated on risers. [See]{.underline} Supp.
U.S. Facts at ¶ 43. Therefore, by depriving individuals with
disabilities of access to, and enjoyment of, the enhanced moving-going
experience normally offered to the general public, Cinemark fails to
comply with the "full and equal enjoyment" requirement of section 302.

> **B. [Cinemark Misconstrues the Plain Meaning of Section 303\
> and Standard 4.33.3]{.underline}**

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

> **1. [The Integration Requirement in Standard 4.33.3\
> Requires More than Companion Seating]{.underline}**

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

Cinemark's reading of this provision of Standard 4.33.3 renders the
Standard's separate and express requirement to provide companion seating
redundant and superfluous. Because the plain meaning of Standard 4.33.3
already requires that "\[a\]t least one companion fixed seat shall be
provided next to each wheelchair seating area," the language addressing
the integration requirement ([i.e.]{.underline}, that wheelchair seating
be an integral part of the fixed seating plan) must mean something
different.[^8] "Regulations, like statutes, are interpreted according to
canons of construction. Chief among these canons is the mandate that
constructions which render regulatory provisions superfluous are to be
avoided." [Black & Decker Corp. v. Commissioner of Internal
Revenue]{.underline}, 986 F.2d 60, 65 (3d Cir. 1993) (internal quotation
marks omitted); [see also]{.underline} [Jewett v. Commissioner of
Internal Revenue]{.underline}, 455 U.S. 305, 315 (1982) (rejecting
interpretation of regulation that rendered half of it superfluous).

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

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

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

In sum, it is undisputed that Cinemark does not provide wheelchair
seating locations in the stadium-style section of its auditoriums.
[See]{.underline}, [e.g.]{.underline}, Cinemark Motion at Section III, ¶
3 ("Wheelchair-accessible seating at Cinemark's stadium-style movie
theaters . . . is located on a flat portion of each auditorium, near the
entranceway and exits, in front of the tiered seats."). Rather, Cinemark
locates its wheelchair seating in the front of its auditoriums, [see
id.]{.underline}, in traditional sloped-floor seating that comprises
less than 20% of the total seating in its stadium-style theaters,
[see]{.underline} Supp. U.S. Facts at ¶ 43. Based on these undisputed
facts, this Court should conclude that Cinemark's seating is not "an
integral part of the fixed seating plan," in violation of Standard
4.33.3.[^12]

> **2. [The Requirement to Provide Persons Who Use Wheelchairs with\
> Comparable Lines of Sight Is an Independent and\
> Separate Requirement from the Dispersal Requirement]{.underline}**

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

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

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

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

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

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

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

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

> **C. [Cinemark Misapplies Relevant Deference Standards]{.underline}**
>
> **1. [Deference to a Federal Agency's Interpretation of its Own
> Regulation\
> Is Generally Encouraged and Is Mandated Where a Regulation Is\
> Ambiguous]{.underline}**

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

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

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

Finally, Cinemark alleges that deference is not due because the United
States' interpretation of Standard 4.33.3 has been "a moving target."
[See]{.underline} Cinemark Opp'n at 1, 3, 16, n. 12 (incorporating by
reference Cinemark Reply at 6, n. 6). However, the United States'
interpretation of Standard 4.33.3 has not changed through time. The
United States has always maintained that: (a) at a minimum, persons who
use wheelchairs must have access to the stadium-style section of
auditoriums; (b) because the relevant standard is "comparability," there
is no minimum or maximum viewing angle required ([i.e.]{.underline}, if
most members of the general public have viewing angles to the top of the
screen exceeding 35 degrees, then persons who use wheelchairs may also
be provided viewing angles exceeding 35 degrees); and (c) owners and
operators of movie theaters must provide lines of sight for persons who
use wheelchairs within the range of viewing angles offered to most
members of the general public with respect to viewing angles, distance
to the screen, obstruction of view, and distortion of images.[^16] The
United States' position is consistent with Standard 4.33.3, is not
clearly erroneous, and has not changed. Thus, the Court should grant
respect to the United States' position, and must defer to the United
States' position if it finds the requirements of the applicable
regulations ambiguous. [See]{.underline} [Christensen]{.underline}, 529
U.S. at 587.

> **2. [There Is No "Heightened Deference" to the Fifth
> Circuit]{.underline}**

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

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

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

> **3. [Deference to the Fifth Circuit's Flawed Analysis in Lara Is
> Unwarranted]{.underline}**

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

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

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

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

> **D. [Cinemark's So-Called "Evidence" of Local Approvals Does\
> Not Preclude the United States' Enforcement of the ADA]{.underline}**

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

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

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

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

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

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

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

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

> **E. [Neither the Doctrine of Mutual Collateral Estoppel Nor the
> Doctrine\
> of Non-Mutual Collateral Estoppel Bars the United States'
> Claims]{.underline}**

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

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

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

> **F. [Cinemark's APA Defense Fails Because No Final Agency Action
> Exists]{.underline}**

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

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

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

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

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

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

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

> **G. [The Fifth Circuit's Decision in *Lara* Does Not Deprive\
> This Court of the Authority to Reach an Independent\
> Decision on the Legal Issues Involved in this Case]{.underline}**

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

**III. CONCLUSION**

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

> Respectfully submitted,
>
> WILLIAM R. YEOMANS
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> L. IRENE BOWEN, Deputy Chief
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> MARGARET L. BASKETTE
>
> HEATHER A. WYDRA
>
> JOHN A. RUSS IV
>
> DANIEL I. WERFEL
>
> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Section
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> Telephone: (202) 616-0330
>
> Facsimile: (202) 307-1197
>
> Counsel for Plaintiff United States of America

Dated: March 12, 2001

[^1]: In opposing the United States' cross motion, Cinemark relies on
    arguments raised in support of its second motion for summary
    judgment. [See]{.underline} Cinemark's Memorandum of Law in
    Opposition to United States' Cross Motion for Partial Summary
    Judgment ("Cinemark Opp'n") at 16, 24-26. Specifically, Cinemark
    incorporates by reference arguments relating to [Lara v.
    Cinemark]{.underline}, 207 F.3d 783 (5^th^ Cir.), [cert.
    denied]{.underline}, 121 S. Ct. 341 (2000), deference,
    certification, the APA, theaters in the Fifth Circuit, and
    collateral estoppel, each of which was addressed in Cinemark USA,
    Inc.'s Reply in Further Support of its Second Motion for Summary
    Judgment ("Cinemark Reply"). Thus, the United States responds, where
    appropriate, to these arguments in the instant reply.

[^2]: Cinemark mistakenly contends that certain facts relied upon in the
    United States' "Statement of Undisputed Material Facts" are
    irrelevant, misleading or inadmissible. [See]{.underline} Cinemark
    Opp'n at 4-7. Cinemark misconstrues the United States' intended use
    of certain undisputed facts. [See]{.underline} U.S. Memorandum in
    Opposition to Defendant's Objection to and/or Motion to Strike
    Plaintiff's Cross-Motion for Partial Summary Judgment Evidence
    ("U.S. Opp'n"). The United States relies upon a limited number of
    facts necessary to the Court's determination of Cinemark's violation
    of the plain meaning of the ADA and the applicable regulations.
    [See]{.underline} discussion [infra]{.underline} at 3. However, in
    the event that this Court finds that it cannot discern the plain
    meaning of the statute or regulations, the United States includes
    additional undisputed facts to: (a) demonstrate the reasonableness
    and consistency of the Department of Justice's interpretation of
    applicable regulations; (b) assist the Court in understanding the
    applicable regulatory terms and how they are applied in practice;
    and (c) demonstrate that applicable regulatory terms
    ([e.g.]{.underline}, "lines of sight comparable") have specific
    meaning to the regulated industry and its membership organization.
    In citing to the views of industry officials regarding Standard
    4.33.3, the United States did not intend to suggest that the test of
    whether Cinemark must comply with the regulation is based upon
    Cinemark's actual knowledge of the regulation or industry's views
    and opinions on the regulation. Rather, publication of Standard
    4.33.3 in the Federal Register gave Cinemark notice of the
    regulation and Cinemark was required to comply with it. [Merrill v.
    Federal Crop Ins. Corp.]{.underline}, 332 U.S. 380, 384-85 (1947).

[^3]: [See]{.underline} Plaintiff United States\' Supplemental Statement
    of Undisputed Material Facts in Further Support of its Cross Motion
    for Partial Summary Judgment ("Supp. U.S. Facts") at ¶ 42 (listing
    the 49 Cinemark theaters at issue in this motion). The instant
    motion addresses only 49 theaters with both stadium-style seating
    and traditional sloped-floor seating in one auditorium, and where
    all wheelchair seating is in the traditional sloped-floor seating.
    [See]{.underline} Supp. U.S. Facts at ¶ 43.

[^4]: Indeed, [McNeil]{.underline} and [Doe]{.underline} both recognize
    that the full and equal enjoyment provision of section 302 requires
    owners and operators of public facilities to provide individuals
    with disabilities access to those goods generally provided to
    members of the general public. [McNeil]{.underline}, 205 F.3d at
    186; [Doe]{.underline}, 179 F.3d at 558.

[^5]: Should the Court grant the instant motion, the United States
    intends to introduce evidence, during the remedy phase of this
    litigation, that will establish the feasibility of appropriate
    modifications or changes to Cinemark's existing stadium-style
    theaters.

[^6]: Cinemark mischaracterizes the United States' discussion of
    Cinemark's aggressive advertising campaign as nothing more than a
    false advertising claim. Cinemark Opp'n at 13, n 8. Cinemark's
    promotion of its stadium-style theaters directly relates to the
    goods and services that Cinemark normally offers to the general
    public and underscores the two different experiences that Cinemark
    offers. In addition, Cinemark's advertising relates to Cinemark's
    operational policies and practices. Pursuant to section 302,
    Cinemark's policies, practices and procedures that deny goods and
    services to individuals with disabilities are discriminatory. 42
    U.S.C. § 12182(b)(2)(A)(ii).

[^7]: Cinemark's allegation that the United States "stood silent" on its
    interpretation of Standard 4.33.3 while Cinemark built the theaters
    subject to the instant motion is both irrelevant and unfounded.
    [See]{.underline} Cinemark Opp'n at 1, 3. The absence or presence of
    technical assistance is not relevant to the issue of whether
    Cinemark complied with sections 302 and 303 of the ADA, and the
    underlying regulations. [See]{.underline} 42 U.S.C. § 12206(e)
    ("\[An entity\] covered under \[the ADA\] shall not be excused from
    compliance with the requirements of \[the ADA\] because of any
    failure to receive technical assistance . . ."). At all times
    relevant to these proceedings, Cinemark had ready access to Standard
    4.33.3 and was on notice of its requirements. In any event, and for
    the purpose of clarifying the record, the first time the industry
    asked for guidance on the requirements of Standard 4.33.3 in
    stadium-style theaters was in April, 1998, and the Department
    immediately and unequivocally informed the industry that wheelchair
    seating locations must be provided, at a minimum, in the
    stadium-style seating section of auditoriums. [See]{.underline}
    Appendix of Documents Supporting the United States\' Motion for
    Summary Judgment ("App.") at 11, pp. 5-6. Finally, at least 13 of
    the 49 theaters that are subject to this motion were designed and/or
    built after April 1998, when the industry first asked for technical
    assistance on Standard 4.33.3 and the Department made clear that
    wheelchair areas must be provided, at a minimum, in the
    stadium-style section. [See]{.underline} Supplemental Declaration of
    Diane Perry ¶ 45, Supp. U.S. Facts at Tab A.

[^8]: [See]{.underline} 28 C.F.R. pt. 36, App. A, § 4.33.3 ("Wheelchair
    areas shall be an integral part of any fixed seating plan. . .").

[^9]: Cinemark contends that on page 22 of the United States' memorandum
    in support of its cross motion, the United States took remarks by
    Representative Shroeder out of context to support its integration
    argument. [See]{.underline} Cinemark Opp'n at 23, n. 22. Cinemark's
    allegation is somewhat baffling, because the United States did not
    rely on remarks by any member of Congress, anywhere in its
    memorandum, to support its integration argument.

[^10]: Cinemark erroneously contends that all of the United States'
    citations to its Preamble are from sections dealing specifically
    with companion seating. [See]{.underline} Cinemark Opp'n at 23, n.
    24. In fact, § 36.203 of the Preamble is entitled "Integrated
    Settings" and does not discuss companion seating. Section 36.308 is
    entitled "Seating in Assembly Areas" and discusses the removal of
    barriers to assembly areas, including, [but not limited
    to]{.underline}, the provision of appropriate companion seating.

[^11]: Cinemark contends that this interpretation of Standard 4.33.3
    contradicts the law because Standard 4.33.3 allows clustering of
    seats in certain circumstances. As we discuss later, the clustering
    "exception" does not apply to stadium-style theaters.
    [See]{.underline} pp. 15-16, [infra]{.underline}.

[^12]: The Court should give no weight to Cinemark's proffered testimony
    of the appropriate meaning of Standard 4.33.3\'s integration
    requirement. [See]{.underline} Cinemark Opp'n at 21 (relying on
    supplemental affidavits of its architects). The proper
    interpretation of Standard 4.33.3\'s integration requirement is a
    legal question for this Court to decide. [See]{.underline} Plaintiff
    United States' Reply in Further Support of its Motion to Strike
    Portions of Evidence Used in Support of Cinemark's Second Motion for
    Summary Judgment ("U.S. Strike Reply") at 4-6.

[^13]: Relying on [Fiedler v. Am. Multi-Cinema, Inc.]{.underline}, 871
    F. Supp. 35 (D.D.C. 1994), Cinemark argues that -- in the past --
    the Department considered it reasonable to place wheelchair seating
    at the top or bottom of a theater if the seating arrangement
    mimicked bleacher-style seating at sports events. [See]{.underline}
    Cinemark Opp'n at 17, n. 13. However, the Department's position in
    [Fiedler]{.underline}, which the court described and to which the
    court deferred, was based on the assumption that balconies,
    bleachers and areas having characteristics similar to them are
    situated high above the spectacle to be observed, and thus are not
    typically accessible by ramps. [Fiedler]{.underline}, 871 F. Supp.
    at 38-39. In the instant case, the Department's position in
    [Fiedler]{.underline} is inapplicable because stadium-style theaters
    can be designed so that the stadium-style seating is accessed by
    persons using wheelchairs through the use of cross-aisles and ramps.
    [See]{.underline} Supp. U.S. Facts at ¶ 44.

[^14]: Cinemark relies on [Christensen]{.underline} to argue that the
    United States' interpretation of Standard 4.33.3 is not entitled to
    [Chevron]{.underline} deference because it comes by way of a "legal
    brief." [See]{.underline} Cinemark Opp'n at 16, n. 12 (incorporating
    by reference Cinemark Reply at 5). This line of reasoning is
    misleading on two fronts. First, the United States does not seek
    [Chevron]{.underline} deference to its interpretation of Standard
    4.33.3. The Supreme Court case in [Chevron]{.underline} is relevant
    where there is a challenge to the way an agency construes a
    [statute]{.underline}. [Chevron U.S.A., Inc. v. Natural Resources
    Def. Council, Inc.]{.underline}, 467 U.S. 837, 843-844 (1984)
    (emphasis added); [see also]{.underline} [Christensen]{.underline},
    529 U.S. at 587-88. Conversely, deference under the Supreme Court
    case in [Auer]{.underline} is relevant where there is a challenge to
    the way an agency construes a [regulation]{.underline}.
    [Auer]{.underline}, 519 U.S. at 461 (emphasis added); [see
    also]{.underline} [Christensen]{.underline}, 529 U.S. at 587-88.
    Thus, to the extent the United States seeks deference to its
    interpretation of Standard 4.33.3 ([i.e.]{.underline}, a
    regulation), it does so pursuant to [Auer]{.underline}, not
    [Chevron]{.underline}. Second, although the
    [Christensen]{.underline} Court held agency interpretations found in
    subregulatory documents ([i.e.]{.underline}, opinion letters) do not
    warrant [Chevron]{.underline} deference, it further held that agency
    interpretations found in subregulatory documents
    ([i.e.]{.underline}, opinion letters) can be given
    [Auer]{.underline} deference if the underlying regulation is
    ambiguous. [See]{.underline} [Christensen]{.underline}, 529 U.S. at
    587-88.

[^15]: This analysis also applies to the claims in the instant case
    surrounding section 302 of the ADA, 42 U.S.C. § 12182, and its
    implementing regulations, 28 C.F.R. §§ 36.201, 36.202, and 36.203.
    The United States interprets these regulatory provisions to prohibit
    a public accommodation from making a good, service, or accommodation
    (such as stadium-style seating) available to the general public, but
    failing to make that same good, service, or accommodation available
    to individuals with disabilities. The United States' interpretation
    is controlling if the Court finds the regulatory requirements to be
    ambiguous.

[^16]: Cinemark's claim that the United States, in its
    [Lara]{.underline} [amicus]{.underline} brief, sets a maximum
    viewing angle of 35 degrees is pure fabrication, for which Cinemark
    provides neither a quote from the [amicus]{.underline} brief nor a
    cite to support its claim, nor can it. [See]{.underline} Cinemark
    Opp'n at 16, n. 12 (incorporating by reference Cinemark Reply at 6,
    n. 6). Furthermore, Cinemark's claim that Access Board statements
    regarding "50 per-cent" of the viewing angles indicate a change in
    the Department's interpretation is erroneous. [See]{.underline}
    [id.]{.underline} The Access Board's statement merely tries to
    restate the Department's position with respect to the provision of
    lines of sight for persons who use wheelchairs within the range of
    viewing angles offered to most members of the general public.
    Moreover, Cinemark erroneously concludes that the Access Board's
    consideration of clarifying the requirements of Standard 4.33.3 in
    future regulations necessarily indicates that the requirements in
    question do not currently exist. [See]{.underline} Cinemark's Opp'n
    at 20-21. The laudable desire of an agency to clarify the
    requirements of a regulation does not nullify the existing
    requirements. [Smiley v. Citibank]{.underline}, 517 U.S. 735, 743
    (1996).

[^17]: Cinemark states that the "conclusory" allegations relating to the
    two specific instances at one theater cannot defeat a motion for
    summary judgment. [See]{.underline} Cinemark Reply at 10-11. But, as
    noted in the text, these are -- and were offered as -- illustrative
    and easy-to-understand examples of ADA violations that do not
    disappear simply because they are accepted by local officials
    ([i.e.]{.underline}, doors that have less than the required 32\"
    clear width, Standard 4.13.5). Notably, the United States had
    specific information related to non-sightline related issues at the
    Tinseltown Theater in El Paso because attorneys for the United
    States had been involved in a previous inspection of that theater
    during its investigation of Cinemark's compliance with Title III of
    the ADA, and thus had specific knowledge about the facility that
    could be compared to the "approval" documentation provided by
    Cinemark. Indeed, if Cinemark had provided its documentation related
    to all its local approvals pursuant to the United States' relevant
    discovery requests and in a timely manner, the United States would
    have had notice that Cinemark intended to raise this as a defense
    and had sufficient time to further investigate these purported
    additional local approvals. [See]{.underline} U.S. Strike Reply at
    2-4; [see also]{.underline} discussion [infra]{.underline} at 24-25
    (questioning, upon closer examination, the sufficiency of the
    documentation of Cinemark's alleged local approvals.)

[^18]: [See]{.underline} "Collected State and Local Approvals," Harton
    Aff. (App. Ex. A) at ¶ 9 and Tab 4 (substantial compliance
    certificates for only "The Woodlands"(Woodlands, Tx), "Movies 20\"
    (El Paso, Tx), and "Katy 19\" (Katy, Tx)). Given Cinemark's delay in
    providing this approval documentation, the United States has not had
    sufficient time to research, investigate, and respond to the meaning
    and validity of these "Substantial Compliance Certificates" within
    the context of the Texas certification program. [See]{.underline}
    U.S. Strike Reply at 2-4. Thus, nothing in this response, or any
    United States' brief on this issue, should be construed as a waiver
    of the United States' right to further assess, and if necessary
    challenge, the validity of these local approvals.

[^19]: [See]{.underline} "Collected State and Local Approvals," Harton
    Aff. (App. Ex. A) at ¶ 9 and Tab 4 (preliminary plan approvals for
    "Cinemark 20-Plex" (Plano, Tx), "Cinemark 16-Plex" (Houston, Tx),
    "Cinemark 24-Plex" (Houston, Tx) "Tinseltown 15\" (Beaumont, Tx),
    "Tinseltown 17\" (Woodlands, Tx), "Cinemark 17\" (Lubbock, Tx),
    "Harlingen 16" (Harlingen, Tx), "Tinseltown 20\" (El Paso, Tx);
    disapprovals for "Cinemark Theatre" (3600 West Beltway, Houston),
    "Cinemark 16-Plex" (12920 Highway, Houston, Tx), "Tinseltown 20\"
    (El Paso, Tx); "Tinseltown 17\" (Dallas, Tx), "Tinseltown Movies"
    (Webb Chapel Road, Dallas), "Tinseltown 20-Plex" (Pflugerville, Tx),
    "Tinseltown 14\" (San Angelo, Tx), "Legacy 24\" (Plano, Tx), "Corpus
    Christi 16\" (Corpus Christi, Tx)).

[^20]: "\[I\]t is a principle of general application in Anglo-American
    jurisprudence that one is not bound by a judgment [in
    personam]{.underline} in a litigation in which he is not designated
    as a party or to which he has not been made a party by service of
    process." [Martin]{.underline}, 490 U.S. at 761 (quoting [Hansberry
    v. Lee]{.underline}, 311 U.S. 32, 40 (1940)).

[^21]: [See]{.underline} [United States v. Stauffer Chem.
    Co.]{.underline}, 464 U.S. 165, 169 (1984) (holding that "the
    doctrine of mutual defensive collateral estoppel is applicable
    against the government to preclude relitigation of the same issue
    already litigated against the same party in another case involving
    virtually identical facts"); [Parklane Hosiery Co. v.
    Shore]{.underline}, 439 U.S. 322, 332-33 (1979) (applying doctrine
    of non-mutual collateral estoppel against petitioners who "received
    a 'full and fair' opportunity to litigate their claims" in the prior
    action); [Blonder-Tongue Labs., Inc. v. University of Ill.
    Found.]{.underline}, 402 U.S. 313, 329 (1971) (discarding mutuality
    requirement but noting that due process prohibits estopping
    litigants who "have never had a chance to present their
    [evidence]{.underline} and arguments on the claim") (emphasis
    added).

[^22]: Cinemark erroneously contends that the United States "does not
    dispute that it had a full and fair opportunity to litigate against
    Cinemark in [Lara]{.underline}." [See]{.underline} Cinemark Opp'n at
    24-25 (incorporating by reference Cinemark Reply at 15). On the
    contrary, the United States spent over four pages of its Memorandum
    of Law in Opposition to Cinemark's Second Motion for Summary
    Judgment disputing that contention. [See]{.underline} Plaintiff
    United States' Memorandum of Law in Opposition to Cinemark's Second
    Motion for Summary Judgment at 12-16. Moreover, in this action, the
    United States has asserted a claim under section 302 of the ADA that
    was not included by the private plaintiffs in the [Lara]{.underline}
    complaint or in the Department's [amicus]{.underline} briefs. In
    addition, as part of its claim under section 303, the United States
    has included an integration argument that the [Lara]{.underline}
    plaintiffs did not make and the district judge did not consider.
    [See]{.underline} [id.]{.underline} at 14, n. 12.

[^23]: [See]{.underline}, [e.g.]{.underline}, [Parklane Hosiery
    Co.]{.underline}, 439 U.S. at 332-33 (allowing stockholders, who
    were not a party in the prior action, to assert non-mutual
    collateral estoppel against petitioners, who were a party);
    [Blonder-Tongue Labs.]{.underline}, 402 U.S. at 329 (holding that
    patentee may be estopped from asserting the validity of a patent
    that was declared invalid in a prior suit against a different
    party).

[^24]: On March 22, 2000, this Court dismissed Cinemark's counterclaim
    that the United States violated the Administrative Procedure Act
    (APA) finding that judicial review was inappropriate because no
    final agency action existed and because Cinemark had an alternate
    adequate remedy. [See]{.underline} Memorandum Opinion and Order at
    6, 11 (Mar. 22, 2000) \[docket \# 47\] (hereinafter "March 22, 2000
    Order "). Since that time, Cinemark has failed to identify or
    provide any new evidence of an alleged final agency action not
    already considered by this Court.

[^25]: Cinemark's remaining arguments in support of its reading of the
    APA are repetitive of earlier arguments that have been previously
    addressed and rejected by this Court. First, in response to
    Cinemark's attempt to link "finality" with "ripeness" in order to
    argue that the finality requirement is inapplicable where an
    enforcement action has already commenced, [see]{.underline} Cinemark
    Opp'n at 25 (incorporating by reference Cinemark Reply at 18-19),
    this Court distinguished "ripeness" from "finality" and found that
    whether an agency action is ripe for review or not, if "an agency
    action lacks finality . . . then a court lacks subject matter
    jurisdiction." [See]{.underline} March 22 Order at 5-6. Second, in
    addressing Cinemark's argument that the United States' position has
    the effect of immunizing federal agencies from judicial review when
    "vague regulations" are promulgated and then enforced through
    litigation, [see]{.underline} Cinemark Opp'n at 25 (incorporating by
    reference Cinemark Reply at 19), this Court instructed that the
    proper procedure for pursuit of a grievance over an agency rule is
    to petition the agency for issuance, amendment, or repeal of a rule,
    denial of which can be appealed to the courts. [See]{.underline}
    March 22 Order at 6, n. 4.

[^26]: To the extent that Cinemark challenges the United States'
    interpretation of the ADA and its underlying regulations, such a
    challenge would be a valid question of law for this Court to decide.
    However, the APA does not prohibit the United States from advancing
    its interpretation, regardless of the appellation (as a "defense" or
    "claim") Cinemark puts on its APA argument.

[^27]: Cinemark continues to misunderstand the holdings of [Reich v.
    Contractors Welding of Western N.Y., Inc.]{.underline}, 996 F.2d
    1409 (2d Cir. 1993) and [NLRB v. Gibson Products Co.]{.underline},
    494 F.2d 762 (5^th^ Cir. 1974). [See]{.underline} Cinemark Opp'n at
    25-26 (incorporating by reference Cinemark Reply at 19 n. 15). These
    cases stand for the proposition that a government agency [appearing
    as a party]{.underline} before a court of appeals must comply with
    the decisions of that particular court of appeals. [See]{.underline}
    [Reich]{.underline}, 996 F.2d at 1413 (Second Circuit required
    Occupational Safety and Health Review Commission to comply with
    mandate issued by the Second Circuit); [Gibson Prods.
    Co.]{.underline}, 494 F.2d at 766 (Fifth Circuit required NLRB to
    adhere to Fifth Circuit law). The United States and Cinemark are
    currently appearing before U.S. District Court for the Northern
    District of Ohio, not the Fifth Circuit. Therefore, only decisions
    of this Court and the Sixth Circuit Court of Appeals (as well as the
    U.S. Supreme Court) are binding on the United States and Cinemark in
    this action.