UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

PARALYZED VETERANS OF AMERICA, )

FRED COWELL, GEOFFREY HOPKINS, )

ANDREW L. KRIEGER, and )

LEE PAGE, )

)

Plaintiffs, ) Civil Action No. 96-1354 (TFH)

)

v\. )

)

ELLERBE BECKET ARCHITECTS & )

ENGINEERS, P.C., ELLERBE )

BECKET, INC., D.C. ARENA )

ASSOCIATES, INC., D.C. ARENA )

L.P., CENTRE GROUP LIMITED )

PARTNERSHIP, ABE POLLIN SPORTS, )

INC., and ABE POLLIN, )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**MEMORANDUM OF *AMICUS CURIAE* UNITED STATES IN SUPPORT OF**

**PLAINTIFFS\' APPLICATION FOR A PRELIMINARY INJUNCTION**

**AND IN OPPOSITION TO DEFENDANTS\' MOTIONS TO DISMISS**

TABLE OF CONTENTS

[Page]{.underline}

I. INTRODUCTION 1

II\. STATUTORY AND REGULATORY FRAMEWORK 3

III\. ARGUMENT 7

> A. Title III of the ADA and the title III\
> regulation require the MCI Center to be\
> readily accessible to and usable by\
> individuals with disabilities. 7
>
> B. The Department of Justice\'s interpretation of\
> title III of the ADA and the title III\
> regulation is reasonable. 9
>
> C. This Court should defer to the Department\'s interpretation of
> title III and the title III regulation. 12
>
> D. The defendants\' arguments that the Court\
> should not defer to the Department\'s\
> interpretation lack merit. 18
>
> 1\. The Standards for Accessible Design\
> are an integral part of the\
> Department of Justice\'s title III\
> implementing regulation. 18
>
> 2\. The Department of Justice did not\
> adopt the Access Board\'s commentary\
> on the ADAAG. 21
>
> 3\. Prior industry standards and\
> practices provide no basis on which\
> to reject the Department\'s\
> position. 23
>
> E. Architects \-- like defendants Ellerbe Becket\
> Architects & Engineers, P.C., and Ellerbe\
> Becket, Inc. \-- are covered by the new\
> construction provision of the ADA, and are\
> properly subject to injunctive relief. 28
>
> F. Plaintiffs have standing to sue, and this\
> action is ripe. 33
>
> 1\. Plaintiffs have alleged a real,\
> concrete injury. 34
>
> 2\. The plaintiffs\' claims are ripe for\
> review. 37

IV\. CONCLUSION 39

EXHIBITS

> A U.S. Department of Justice, [Americans with Disabilities Act Title
> III Technical Assistance Manual, 1994 Supplement]{.underline}, §
> III-7.5810
>
> B U.S. Department of Justice, [Accessible Stadiums]{.underline}
> (undated)
>
> C [Ferguson v. City of Phoenix]{.underline}, No. CIV 95-0260 PHX RCB
> (D. Ariz. Apr. 16, 1996).
>
> D [Orr v. Kindercare]{.underline}, Civ. No. S-95-507 EJG/GGH (E.D.
> Cal. June 9, 1995).

TABLE OF AUTHORITIES

[Cases]{.underline}: [Page]{.underline}

[Adelman v. Dunmire]{.underline}, No. CIV.A. 95-4039, 1996 WL 107853

(E.D. Pa. Mar. 12, 1996) 17

[Alexander v. Gardner-Denver Co.]{.underline}, 415 U.S. 36 (1974) 34

[Bechtel v. East Penn. School Dist.]{.underline}, Civ. A. No. 93-4898,

1994 WL 3396 (E.D. Pa. Jan. 4, 1994) 18

[Benson v. Northwest Airlines, Inc.]{.underline}, 62 F.3d 1108

(8th Cir. 1995) 17

[Carparts Distrib. Ctr., Inc. v. Automotive]{.underline}

[Wholesaler\'s Ass\'n]{.underline}, 37 F.3d 12 (1st Cir. 1994) 31

[Chevron U.S.A., Inc. v. Natural Resources Defense]{.underline}

[Council, Inc.]{.underline}, 467 U.S. 837 (1984) 13, 16 17

[Civic Ass\'n of the Deaf, Inc. v. Giuliani]{.underline}, 915 F. Supp.
622

(S.D.N.Y. 1996) 17

[Clarkson v. Coughlin]{.underline}, 898 F. Supp. 1019 (S.D.N.Y. 1995) 18

[Dertz v. City of Chicago]{.underline}, 912 F. Supp. 319

(N.D. Ill. 1995) 18

[Ferguson v. City of Phoenix]{.underline}, No. CIV 95-0260 PHX RCB,

(D. Ariz. Apr. 16, 1996) 16

[Fiedler v. American Multi-Cinema, Inc.]{.underline},

871 F. Supp. 35 (D.D.C. 1994) 15

[Holihan v. Lucky Stores, Inc.]{.underline}, No. 95-55409,

1996 WL 346624 (9th Cir. June 26, 1996) 17

[Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994) 31

[Ingersoll-Rand Co. v. McClendon]{.underline}, 498 U.S. 133 (1990) 30

[Innovative Health Sys. v. City of White Plains]{.underline},

No. 95 CV 9642(BDP), 1996 WL 361137, (S.D.N.Y.

June 12, 1996) 16

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993) 31

[Kornblau v. Dade County]{.underline}, No. 95-4100,

1996 WL 296824 (11th Cir. June 20, 1996) 17

[Le v. Applied Biosys.]{.underline}, 886 F. Supp. 717 (N.D. Cal. 1995)
17

[Lujan v. Defenders of Wildlife]{.underline}, 504 U.S. 555 (1992) 34, 37

[Milton v. Scrivner, Inc.]{.underline}, 53 F.3d 1118

(10th Cir. 1995) 17

[Moskal v. United States]{.underline}, 498 U.S. 103 (1990) 33

[Newman v. Piggie Park Enters., Inc.]{.underline}, 390 U.S. 400 (1968)
34

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ind. 1993) 18

[Orr v. Kindercare]{.underline}, No. S-95-507 EJG/GGH

(E.D. Calif. June 8, 1995) 17

[Petersen v. University of Wis. Bd. of Regents]{.underline},

818 F. Supp. 1276 (W.D. Wis. 1993) 18

[Peyton v. Rowe]{.underline}, 391 U.S. 54 (1968) 31

[Pinnock v. International House of Pancakes]{.underline}, 844 F. Supp.
574

(S.D. Cal. 1993) 17

[Rettig v. Pension Benefit Guar. Corp]{.underline}, 744 F.2d 133

(D.C. Cir. 1984) 31

[Reno v. Koray]{.underline}, 115 S. Ct. 2021 (1995) 13

[Tcherepnin v. Knight]{.underline}, 389 U.S. 332 (1967) 31

[Thomas Jefferson Univ. v. Shalala]{.underline},

114 S.Ct. 2381 (1994) 12,15,16

[Thompson v. Borg-Warner Protective Servs. Corp.]{.underline}

No. C-94-4015 MHP, 1996 WL 162990

(N.D. Cal. Mar. 11, 1996) 17

[Trafficante v. Metropolitan Life Ins. Co.]{.underline}, 409

U.S. 205 (1972) 34

[United States v. Giordano]{.underline}, 416 U.S. 505 (1974) 3

[United States v. Menasche]{.underline}, 348 U.S. 528 (1955) 33

[United States v. X-Citement Video, Inc.]{.underline},

115 S. Ct. 464 (1994) 31

[Wagner Seed Co., Inc. v. Bush]{.underline}, 946 F.2d 918 (D.C. Cir.
1991) 13

[Warth v. Seldin]{.underline}, 422 U.S. 490 (1975) 34

[Whitmore v. Arkansas]{.underline}, 495 U.S. 149 (1990) 37

[Statutes:]{.underline} [Page]{.underline}

29 U.S.C. § 792(a)(1) 6

29 U.S.C. § 792(a)(1)(B) 6

Americans with Disabilities Act of 1990

42 U.S.C. § 12101 3

42 U.S.C. § 12101(a)(4) 35

42 U.S.C. § 12101(a)(5) 23

42 U.S.C. § 12101(b)(1) 3

42 U.S.C. § 12101(b)(2) 35

42 U.S.C. § 12101(b)(4) 3

42 U.S.C. § 12181 1,3

42 U.S.C. § 12181(2) 4

42 U.S.C. § 12181(7) 4

42 U.S.C. § 12181(7)(c) 4

42 U.S.C. § 12182(a) 4, 28, 29

42 U.S.C. § 12182(b)(1)(A)(ii) 4

42 U.S.C. § 12182(b)(1)(A)(iii) 5

42 U.S.C. § 12183 20

42 U.S.C. § 12183(a) 5, 7, 10, 30

42 U.S.C. § 12183(a)(1) 20

42 U.S.C. § 12186(a) 5

42 U.S.C. § 12186(b) 5, 15, 18

42 U.S.C. § 12186(c) 6, 18, 19

42 U.S.C. § 12188(a)(1) 37

42 U.S.C. § 12189 1, 3

42 U.S.C. § 12204 18

42 U.S.C. § 12206(a)(1) 13

42 U.S.C. § 12206(c)(3) 14, 15

Civil Rights Act of 1964

42 U.S.C. § 2000a-3(a) 35

[Regulations:]{.underline} [Page]{.underline}

28 C.F.R.

§ 0.50(1) 13

Part 36 6

Part 36, App. A 1, 6, 20

§ 3.5 6

§ 4.1.3(19) 6

§ 4.33 6, 7, 21

§ 4.33.3 9, 15

Part 36, App. B. 20, 21

[Legislative Materials]{.underline}: [Page]{.underline}

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 10, 25

H. R. Rep. No. 485, 101st Cong., 2d Sess. (1990) 25, 32

[Other:]{.underline} [Page]{.underline}

[Americans with Disabilities Act Accessibility]{.underline}

[Guidelines for Buildings and Facilities]{.underline},

56 Fed. Reg. 35408 (July 26, 1991) 19

[Americans With Disabilities Act Title III Technical]{.underline}

[Assistance Manual Covering Public Accommodations and]{.underline}

[Commercial Facilities]{.underline}, Nov. 1993, III-5.1000

(General) 11, 22, 23

[Americans with Disabilities Title III Technical]{.underline}

[Assistance Manual Supplement]{.underline}, 1994 8, 15

**I. INTRODUCTION**

Plaintiffs Paralyzed Veterans of America (\"PVA\"), a Congressionally
chartered, national organization of veterans who use wheelchairs, and
four individual wheelchair users, Fred Cowell, Geoffrey Hopkins, Andrew
L. Krieger, and Lee Page, have brought this action against the owners,
developers, and architects of the new MCI Center, a multi-purpose indoor
arena to be constructed in Washington, D.C. The plaintiffs assert that
the current designs for the MCI Center violate title III of the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 through
12189 (the \"ADA\" or the \"Act\"), in that the designs provide
wheelchair seating locations from which wheelchair users will not be
able to see the court, the ice, or the stage when patrons in front of
them stand. This failure to provide lines of sight over standing
spectators, contend the plaintiffs, violates both title III of the ADA
and the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A,
the ADA\'s architectural requirements for new construction. The
plaintiffs seek an injunction compelling the defendant to bring the
facility into compliance with the ADA and the Standards. The
plaintiffs\' application for a preliminary injunction is opposed by
several defendants.[^1]

Also pending before the Court are motions to dismiss of various
defendants. Defendants Ellerbe Becket Architects & Engineers, P.C.
(\"EBAE\"), the architects for the MCI Center, and Ellerbe Becket, Inc.
(\"EB\"), the parent company of EBAE (collectively, the \"Ellerbe Becket
defendants\"), have moved to dismiss the counts of the complaint alleged
against them, arguing that architects and engineers do not fall within
the scope of the ADA\'s provisions governing the design and construction
of new facilities, so that they cannot be held liable under the ADA for
designing a facility that does not comply with the ADA\'s Standards for
Accessible Design.[^2] Defendant D.C. Arena L.P., the owner and operator
of the MCI Center, has also moved to dismiss this action, arguing that
because the arena has not yet been built, any injury to the plaintiffs
remains speculative, such that the case is not ripe for judicial review,
and the plaintiffs have no standing to bring the action.

As set forth below, the United States contends that the plaintiffs are
correct in arguing that title III of the ADA and the Standards require
that new arenas and stadiums be designed to allow patrons who use
wheelchairs to see what is happening on the floor or field, even when
other patrons stand up. Accordingly, the Court should grant the
plaintiffs\' application for a preliminary injunction to bring the MCI
Center into compliance with the Standards. In addition, the United
States urges the Court to deny the defendants\' motions to dismiss: the
ADA\'s provisions governing new construction apply to all entities
involved in the design and construction of new facilities, including
architects and engineers, and there can be little question that the
imminent construction of a facility that does not comply with the ADA
presents a case or controversy sufficiently ripe for judicial review.

**II. STATUTORY AND REGULATORY FRAMEWORK**

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 *et seq.*, is
Congress\' most comprehensive civil rights legislation since the Civil
Rights Act of 1964. Its purposes are \"to invoke the sweep of
congressional authority . . . in order to address the major areas of
discrimination faced day-to-day by people with disabilities,\" 42 U.S.C.
§ 12101(b)(4), and to provide \"a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities.\"\
42 U.S.C. § 12101(b)(1). The ADA\'s coverage is accordingly broad \--
prohibiting discrimination on the basis of disability in employment,
State and local government programs and services, transportation
systems, telecommunications, commercial facilities, and the provision of
goods and services offered to the public by private businesses.

This case concerns title III of the ADA, 42 U.S.C. §§ 12181 through
12189, which prohibits discrimination on the basis of disability in both
public accommodations and commercial facilities.[^3] Title III\'s
general mandate prohibiting discrimination against individuals with
disabilities is set out in section 302(a) of the Act, which provides
that

> \[n\]o individual shall be discriminated against on the basis of
> disability in the full and equal enjoyment of the goods, services,
> facilities, privileges, advantages, or accommodations of any place of
> public accommodation by any person who owns, leases (or leases to), or
> operates a place of public accommodation.

42 U.S.C. § 12182(a). Section 302(b) then construes section 302(a),
defining discrimination on the basis of disability to include various
acts or omissions. For instance, public accommodations may not deny
individuals with disabilities opportunities to participate in and
benefit from their services on a basis equal to that offered to other
individuals. *See* 42 U.S.C. § 12182(b)(1)(A)(ii). Public accommodations
also may not provide individuals with disabilities with goods, services,
privileges, or advantages that differ from those provided to other
individuals, unless doing so is necessary to the provision of the goods
or services in question. *See* 42 U.S.C. § 12182(b)(1)(A)(iii). All of
the prohibited activities defined in section 302(b) apply exclusively to
public accommodations. Section 303 of the Act adds another category of
prohibited activity \-- the design and construction of new facilities
that are not accessible to and usable by individuals with disabilities
\-- and extends this prohibition not just to public accommodations, but
to all commercial facilities. *See* 42 U.S.C. § 12183.

The Act directs the Attorney General to issue regulations to carry out
the provisions of title III (other than certain provisions dealing with
transportation issues, which are entrusted to the Secretary of
Transportation, *see* 42 U.S.C. § 12186(a)). 42 U.S.C. § 12186(b).
Section 303 specifically requires that the regulations include, or
incorporate by reference, architectural accessibility standards. 42
U.S.C. § 12183(a)). The statute provides that these architectural
standards must meet or exceed those developed by another federal agency,
the Architectural and Transportation Barriers Compliance Board (also
known as, and referred to herein as the \"Access Board\"); the
architectural standards promulgated by the Attorney General must be
\"consistent with the minimum guidelines and requirements issued by\"
the Access Board. 42 U.S.C. § 12186(c).[^4]

As required by the statute, the Attorney General timely issued a title
III implementing regulation on July 26, 1991. *See* 28 C.F.R. Part 36.
The regulation includes architectural standards for newly constructed
public accommodations and commercial facilities, entitled the Standards
for Accessible Design. *See* 28 C.F.R. Part 36, Appendix A (\"the
Standards\"). Among other things, the Standards set several requirements
for wheelchair seating locations in stadiums, arenas, and other
\"assembly areas.\" *See* Standards §§ 4.1.3(19), 4.33.[^5]

**III. ARGUMENT**

**A. Title III of the ADA and the title III regulation require the MCI
Center to be readily accessible to and usable by individuals with
disabilities.**

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

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

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

The Department of Justice interprets the language in the Standards
requiring \"lines of sight comparable to those for members of the
general public\" to mean that wheelchair locations in newly constructed
arenas must provide a line of sight over standing spectators in
facilities where spectators may be expected to stand during the events.
The Department has published or provided its view in various ways, but
the first published statement of the Department\'s position came in the
1994 supplement to the Department\'s Title III Technical Assistance
Manual, in which the Department publishes informal, non-binding guidance
on questions arising on all aspects of title III. The 1994 supplement to
the TA Manual states that

> \[i\]n addition to requiring companion seating and dispersion of
> wheelchair locations, ADAAG requires that wheelchair locations provide
> people with disabilities lines of sight comparable to those for
> members of the general public. Thus, in assembly areas where
> spectators can be expected to stand during the event or show being
> viewed, the wheelchair locations must provide lines of sight over
> spectators who stand. This can be accomplished in many ways, including
> placing wheelchair locations at the front of a seating section, or by
> providing sufficient additional elevation for wheelchair locations
> placed at the rear of seating sections to allow those spectators to
> see over the spectators who stand in front of them.

U.S. Department of Justice, [Americans with Disabilities Act Title III
Technical Assistance Manual, 1994 Supplement]{.underline} § III-7.5180
at 13 (Supp. 1994) (copy attached as Exhibit A).

The Department has expressed the same position in other interpretive
documents,[^6] and has pursued its view of the statute and the
regulation in its enforcement efforts. Most notably, the Department has
recently concluded a lengthy investigation of several newly constructed
Olympic venues in and around Atlanta, Georgia. The investigation
included the new 85,000 seat Olympic Stadium, which will be used as the
main venue for the 1996 Summer Olympic Games, and then converted to a
45,000 seat baseball stadium. The central objective of the Department\'s
investigation of these facilities was to insure that all of the
wheelchair seating locations in the facilities in question would provide
a line of sight over standing spectators. The Department\'s efforts were
successful: in both the Olympic and baseball stadiums, as well as three
other new Olympic venues, wheelchair users will have \"comparable\"
lines of sight allowing them to see over standing spectators.[^7]

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

The Department\'s reading of section 4.33.3 of the Standards makes
perfect sense: if other spectators can see over standing spectators (by
standing up themselves), then spectators using wheelchairs must also be
able to see over standing spectators, or they will not have a
\"comparable\" line of sight. Put differently, the developers,
architects, and engineers who design new stadiums can no longer rely on
the assumption that when patrons stand, all patrons will still be able
to see, by standing up themselves. Rather, they must replace that
assumption with a design feature that does not require wheelchair users
to stand in order to see. Just as the ADA does not allow a new facility
to be designed and constructed with an entrance that requires wheelchair
users to stand, walk, or climb stairs, so does the ADA forbid an arena
to be designed and constructed so that wheelchair users must be able to
walk or stand in order to see what is happening on the court or the ice
or the stage.[^8]

The Department\'s reading of the \"comparable\" lines of sight language
of the Standards is buttressed by the language and purpose of the
statute itself. The new construction provision requires that new
facilities be \"readily accessible to and usable by individuals with
disabilities.\" 42 U.S.C. § 12183(a). The legislative history of the Act
explains that this provision is intended to assure \"both ready access
to the facility and usability of its features and equipment and of the
goods, services, and programs available therein.\" S. Rep. No. 116,
101st Cong., 1st Sess. 69 (1989). The central purpose of a sports arena
like the MCI Center is to provide a facility in which large numbers of
people can gather and view an athletic or other event. At many of those
events \-- basketball games, hockey matches, music concerts, and others
\-- spectators will stand for all or significant portions of the event,
including the most interesting and exciting portions of the event.
Having a line of sight over standing spectators will be critical to
enjoyment of events at the facility. To allow a stadium design which
relegates wheelchair users to looking at the backs of the people in
front of them during those periods is to allow a stadium design which
significantly diminishes the ability of wheelchair users to participate
in and enjoy the event. It is precisely the kind of discrimination that
the ADA is intended to prevent.

The defendants do not argue that wheelchair users at the MCI Center will
be able to see what other spectators will be able to see. Instead, the
defendants argue that the Department of Justice\'s views on comparable
lines of sight, as expressed in the Technical Assistance Manual, do not
have the force of law, are not binding, and are entitled to no
deference. The defendants have missed the point. The Department
acknowledges that the TA Manual, standing alone, does not have the force
of law and is not binding, but only expresses the Department\'s views on
the correct interpretation of title III of the ADA and its title III
regulation. We argue below that as the agency directed by Congress to
promulgate and enforce architectural standards, our interpretation of
the Standards is entitled to deference, but the central issue here is
[not]{.underline} the nature or validity of the Department\'s Technical
Assistance Manual. The central issue is whether title III of the ADA and
the Standards require that patrons using wheelchairs in the MCI Center
be able to see the

action on the arena floor. It is the Department\'s position that, read
in light of the statutory language and purpose, the only sensible
conclusion is that in stadiums and arenas where spectators can be
expected to stand, the \"comparable\" lines of sight requirement
includes lines of sight over those standing spectators.

**C. This Court should defer to the Department\'s interpretation of
title III and the title III regulation.**

It is well established that the courts \"must give substantial deference
to an agency\'s interpretation of its own regulations\" unless \"plainly
erroneous or inconsistent with the regulation.\" [Thomas Jefferson
University v. Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994)
(internal quotes omitted). Moreover, \"an agency\'s interpretation of
its own regulations\" need not be expressed by formal rulemaking;
deference extends as well to statements made in informal interpretive
documents like the Department\'s Technical Assistance Manual. The
Supreme Court, for instance, has recently deferred to a Bureau of
Prisons interpretation of a statute it was charged with administering,
even though the interpretation was contained only in an internal agency
document:

> It is true that the Bureau\'s interpretation appears only in a
> \`Program Statement\' \-- an internal agency guideline \--rather than
> in published regulations subject to the rigors of the Administrative
> Procedure Act, including public notice and comment. But BOP\'s
> internal agency guideline, which is akin to an \'interpretive rule\'
> that does not require notice-and-comment, is still entitled to some
> deference, since it is a permissible construction of the statute.

[Reno v. Koray]{.underline}, 115 S. Ct. 2021, 2027 (1995) (quotation
marks, brackets, and citations omitted). *See also* [Wagner Seed Co.,
Inc. v. Bush]{.underline}, 946 F.2d 918, 922 (D.C. Cir. 1991), [cert.
denied]{.underline}, 503 U.S. 970 (1992)(holding that interpretive
statements receive [Chevron]{.underline} deference even if they do not
arise out of rulemaking, and deferring to position taken by EPA in a
\"decision letter\").

The ADA itself provides for the issuance of the Department of Justice\'s
TA Manuals, so that covered entities and individuals with disabilities
might better understand their respective duties and rights. The statute
directs the Attorney General, in consultation with various other federal
officials, to develop and implement a technical assistance plan, \"to
assist entities covered under \[the Act\] . . . in understanding the
responsibility of such entities . . . under \[this Act\].\" 42 U.S.C. §
12206(a)(1). The statute specifically directs the Attorney General[^9]
and others with enforcement responsibilities \"to ensure the
availability and provision of appropriate technical assistance manuals
to individuals or entities with rights or duties under \[the Act\] . . .
.\" 42 U.S.C. § 12206(c)(3).[^10] Given that Congress explicitly
directed the Attorney General to issue this informal guidance, the title
III TA Manual should be considered a particularly valuable source for
understanding title III and the title III regulation.[^11]

Many courts have deferred to the Department\'s TA Manuals for both
titles II and III of the ADA. Indeed, this Court deferred to the title
III TA Manual in a case construing other language of section 4.33.3 of
the Standards for Accessible Design, the very section of the Standards
at issue here. [Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871
F. Supp. 35 (D.D.C. 1994). In [Fiedler]{.underline}, the plaintiff
sought to have a movie theater in Union Station disperse its wheelchair
seating locations throughout the theater. The defendants argued that an
\"exception\" to section 4.33.3 permitted \"clustering\" of wheelchair
locations in the theater. In resolving the dispute, the court relied
heavily on the Department of Justice\'s interpretation of section 4.33.3
in the Technical Assistance Manual. The court noted that

> \[t\]he United States Department of Justice is charged by statute with
> the implementation of Title III of the ADA, 42 U.S.C. § 12186(b), and
> to that end it has promulgated conventional regulations and published
> literature interpreting the regulations, including a \"technical
> assistance\" manual, pursuant to 42 U.S.C. § 12206(c)(3) . . . .
> Although the parties do not agree as to the force and effect each is
> to be given, the Court will deem them as regulations and
> interpretations of regulations, the latter to be given controlling
> weight as to the former.

[Id.]{.underline} at 36 n.4. The court concluded that \"\[a\]s the
author of the regulation, the Department of Justice is also the
principal arbiter as to its meaning,\" and adopted the reading of
section 4.33.3 advanced by the government. [Id.]{.underline} at 38
(citing [Thomas Jefferson Univ. v. Shalala]{.underline}, 114 S. Ct. 2381
(1994)). The [Fiedler]{.underline} court also relied upon statements in
the TA Manual, including statements in the 1994 supplement to the TA
Manual, in addressing other questions raised by the case. *See*
[id]{.underline}. at 37 n.6 (relying on statement in 1994 supplement to
TA Manual as to status of private lessees of government property under
title III), and 37 n.7 (title III does not disturb other federal laws
which provide equal or greater protections for individuals with
disabilities.)

Other courts have also explicitly deferred to the Department\'s TA
Manuals for both titles II and III of the ADA, and more have looked to
the Manuals for guidance or support. One of the cases expressly
deferring to the title II TA Manual is [Ferguson v. City of
Phoenix]{.underline}, No. CIV 95-0260 PHX RCB (D. Ariz. Apr. 16, 1996)
(attached as Exhibit C). In [Ferguson]{.underline}, deaf plaintiffs
challenged the adequacy of the city of Phoenix\' 911 emergency system,
with respect to its ability to handle incoming calls from individuals
using telecommunications devices for deaf persons (TDDs). Among other
things, they relied upon statements in the Department\'s title II TA
Manual describing features that the Department believes 911 systems must
possess. The court first observed that (as with title III) Congress had
directed the Attorney General to promulgate regulations necessary to
implement title II (which prohibits disability based discrimination by
state and local governments \-- *see* 42 U.S.C. § 12132), and to publish
a technical assistance manual. Slip op. at 9-11. Then, relying on
[Chevron]{.underline} and [Thomas Jefferson]{.underline}, the court held
that because the Department\'s views, as expressed in the TA Manual,
were reasonable interpretations of its own regulations, it should defer
to them. [Id]{.underline}. at 12-15. *See also* [Innovative Health Sys.
v. City of White Plains]{.underline}, No. 95 CV 9642(BDP) 1996 WL 361137
at \*19 n.4 (S.D.N.Y. June 12, 1996) (Department of Justice\'s title II
TA Manual entitled to controlling weight unless plainly erroneous or

inconsistent with the regulations); [Orr v. Kindercare]{.underline},
Civ. No. S-95-507 EJG/GGH (E.D. Cal. June 9, 1995), slip op. at 5-6
(attached as Exhibit D) (Attorney General\'s interpretations of the
title III regulations are entitled to substantial deference; moreover,
\"the government\'s interpretations of the statute and regulations
implemented thereunder, \[even though\] articulated for the first time
in this lawsuit, are at the very least, informative and useful.\").
*Cf.* [Pinnock v. International House of Pancakes]{.underline}, 844 F.
Supp. 574 (S.D. Cal. 1993) (rejecting a constitutional challenge to
title III of the ADA as void for vagueness in part by considering
clarification of statute found in administrative regulations and the
title III TA Manual).[^12] Many more decisions cite or rely upon the TA
Manuals as authority for the courts\' statutory and regulatory
interpretations of the ADA, without discussion of the level of deference
afforded.[^13]

**D. The defendants\' arguments that the Court should not defer to the
Department\'s interpretation lack merit.**

*1. The Standards for Accessible Design are an integral part of the
Department of Justice\'s title III implementing regulation.*

As described above (*see* discussion *supra* at 5-6), the Act directs
the Attorney General to issue regulations to implement title III of the
ADA, including architectural standards for new construction consistent
with minimum guidelines developed by the Access Board. Contrary to the
defendants\' assertion, the architectural standards included within the
Department\'s title III regulation are not another agency\'s regulation,
but are manifestly part \-- indeed, a central, crucial part \-- of the
Department\'s own regulation.

Initially, the language of the statute makes clear that the actions of
the Attorney General and the Access Board are of different legal effect:
while the Access Board is to issue only minimum \"guidelines,\" the
Attorney General is to issue \"regulations,\" including architectural
standards which must be consistent with the Access Board\'s
\"guidelines.\" *See* 42 U.S.C.\
§ 12186(b) (Attorney General to issue \"regulations\"); 42 U.S.C. §
12204 (Access Board to issue \"minimum guidelines\"); 42 U.S.C.

§ 12186(c) (standards included in regulations issued by Attorney General
must be consistent with minimum guidelines issued by Access Board). The
\"guidelines\" issued by the Access Board have no regulatory force or
effect in and of themselves; the architectural standards in question are
a \"regulation,\" and have regulatory effect, [only]{.underline} because
they have been included by the Department of Justice in the
Department\'s title III regulation. Indeed, the Board\'s \"guidelines\"
explicitly recognize that

> \[t\]hese guidelines are to be applied during the design,
> construction, and alteration of such buildings and facilities [to the
> extent required by regulations issued by Federal agencies, including
> the Department of Justice,]{.underline} under the Americans with
> Disabilities Act of 1990.

Americans with Disabilities Act Accessibility Guidelines for Buildings
and Facilities, 56 Fed. Reg. 35408, 35459 (1991) (emphasis added).

Moreover, title III vests the Attorney General with considerable
discretion to set architectural standards: the only requirement is that
they be at least as strict as the \"minimum guidelines\" to be developed
by the Access Board. 42 U.S.C. § 12186(c). Thus, while the Department
adopted the Board\'s guidelines (the ADA Accessibility Guidelines, or
\"ADAAG\") as its Standards for Accessible Design without modification,
it was not required to do so, and did so only because, as the Department
explained when it issued its final title III regulation,

> \[a\]s a member of the Board and of its ADA Task Force, the Department
> participated actively in the public hearings held on the proposed
> guidelines and in preparation of both the proposed and final versions
> of ADAAG. Many individuals and groups commented directly to the
> Department\'s docket, or at its public hearings, about ADAAG. The
> comments received on ADAAG, whether by the Board or by this
> Department, were thoroughly analyzed and considered by the Department
> in the context of whether the proposed ADAAG was consistent with the
> ADA and suitable for adoption as both guidelines and standards. The
> Department is convinced that ADAAG as adopted in its final form is
> appropriate for these purposes. The final guidelines, adopted here as
> standards, will ensure the high level of access contemplated by
> Congress, consistent with the ADA\'s balance between the interests of
> people with disabilities and the business community.

28 C.F.R. Part 36, Appendix B at 634.

Indeed, in promulgating the title III implementing regulation, the
Department did not simply incorporate the Board\'s ADAAG by reference
(as it might have done consistently with the requirements of the Act \--
*see* 42 U.S.C. § 12183(a)(1) (architectural standards to be \"set forth
or incorporated by reference in regulations issued under this
subchapter\"). To the contrary, the Department carefully integrated the
ADAAG into its title III regulation, modifying other parts of the
regulation to produce a coherent whole. As explained in the preamble to
the final title III regulation, the Department deleted certain parts of
subpart D of the rule because they were included in the ADAAG, and
retained other parts of subpart D to be faithful to the statute, even
though those provisions were partially or wholly repeated in the ADAAG.
*See* 28 C.F.R. Part 36, Appendix B at 633. Finally, the ADAAG were
re-labeled as the Standards for Accessible Design, to make clear that
these were not \"guidelines\" \-- which might be thought to be merely
suggestive \-- but \"standards\" with the force of law, and to
distinguish the Department of Justice\'s legally binding regulation from
the Board\'s non-binding ADAAG. *See* 28 C.F.R. Part 36, Appendix A (the
\"Standards for Accessible Design\"). When it interprets the regulation
and the Standards for Accessible Design, the Department is
unquestionably construing its own regulation.

*2. The Department of Justice did not adopt the Access Board\'s
commentary on the ADAAG.*

In contending that the language of the Standards requiring
\"comparable\" lines of sight does not require that wheelchair seating
locations provide lines of sight over standing spectators, the
defendants make much of the Board\'s statement, in its commentary to the
final ADAAG, that it would return to that issue in future rule-making.
What the defendants do not point out, however, is that while the
Department adopted the Board\'s guidelines and incorporated them into
its regulation, the Department did [not]{.underline} adopt or
incorporate the Board\'s commentary on the final ADAAG. If it had wished
to do so, the Department certainly could have adopted the Board\'s
discussion of the ADAAG. The Department, however, wrote and published
its own lengthy commentary (some twenty pages) on the new construction
requirements of the ADA, the architectural standards, and the
interrelationship between the standards and other parts of the
regulation and the statute. *See* 28 C.F.R. Part 36, Appendix B at
619-38. In doing so, the Department did not specifically address any of
the comments made by the Board the same day, either to endorse or to
disavow them. The commentary issued by the Department does not
specifically address section 4.33.3 of the

Standards, or the issue of line of sight over standing spectators.
[Id]{.underline}.

In any case, the defendants cannot credibly argue that they relied on
the Board\'s statement in designing the MCI Center to have wheelchair
locations without lines of sight over standing spectators. The Technical
Assistance Manual made clear, two years ago, that the Department of
Justice believed that lines of sight over standing spectators were
required \-- resolving any doubts about the Department\'s position that
might have been raised by the Board\'s statements.[^14] The defendants
do not claim to have been unaware of the Technical Assistance Manual, or
the Department\'s position. To the contrary, as the plaintiffs
demonstrate in their reply memorandum, the defendants were fully aware
of the Department\'s position and simply disregarded it. The defendants
now rely on the great momentum of the project, and its high public
profile, to steamroll any objections to the design of the arena. They
ask this Court to save them from their own calculated refusal to make
the facility fully accessible to and usable by individuals with
disabilities, based on a statement by the Access Board which the
defendants knew all along was not the view of the agency responsible for
enforcing the statute.

*3. Prior industry standards and practices provide no basis on which to
reject the Department\'s position.*

Finally, in resisting the plaintiffs\' attempts to insure that they and
other wheelchair users will be able to participate fully and equally in
the events to be held at the MCI Center, the defendants rely in part on
what they call a \"well-established preexisting meaning\" for the
principle of \"comparable\" lines of sight. Memorandum of D.C. Arena
L.P. at 36. It is no answer to the plaintiffs\' claim, however, to say
that stadiums and arenas have not been designed this way in the past \--
that there is (or was) a generally understood and accepted industry
standard which called for sight lines to be calculated over seated
patrons only. Indeed, in adopting the ADA, Congress explicitly
recognized that individuals with disabilities

> continually encounter various forms of discrimination, including
> \[among other things\] . . . the discriminatory effects of
> architectural, transportation, and communication barriers, . . . and
> relegation to lesser services, programs, activities, benefits, jobs,
> or other opportunities.

42 U.S.C. § 12101(a)(5). The defendants complain that requiring lines of
sight over standing spectators is a \"major change in the law.\"
Memorandum of D.C. Arena L.P. at 37. This is no reason to rule against
the plaintiffs. To the contrary \-- it is the very purpose of the ADA to
[change]{.underline} the way new facilities, including sports arenas,
are designed and constructed \-- to discard standards and practices
which have relegated individuals with disabilities to diminished
participation in the day to day life of our society.

The defendants\' arguments based on past experience at the USAir Arena
fail for similar reasons. *See* Memorandum of D.C. Arena L.P. at 5, 17.
Initially, the defendants\' suggestion that the MCI Center need have
only enough wheelchair seating locations to accommodate the demand
experienced at the USAir Arena is tantamount to suggesting that the
developers and architects of the MCI Center need not comply with the
ADA\'s new construction requirements. That is, rather than provide the
number of wheelchair locations required by the Standards for Accessible
Design, the defendants\' argument would allow them to provide whatever
number of such locations they judged to be adequate, based on \"current
experience.\" [Id]{.underline}. at 17.

Second, there is every reason to expect that, if it is designed and
constructed to be readily accessible to and usable by individuals with
disabilities \-- including providing wheelchair locations with a line of
sight over standing spectators \-- the MCI Center will attract far more
wheelchair users than have attended events at the USAir Arena, or other
older arenas. Those arenas typically do not provide a high level of
access or usability, and it is no surprise that few wheelchair users
attend events there. In addition to the line of sight question, a
variety of other barriers \-- lack of accessible public transportation,
inaccessible parking, inaccessible entrances, inaccessible restrooms,
inaccessible concession stands, or failure to provide wheelchair seating
areas in desirable locations \-- may deter wheelchair users from
visiting the facility in question.[^15] The MCI Center (if it complies
with the ADA) will be fully accessible to and usable by individuals with
disabilities, will be centrally located and reachable by an accessible
public transportation system (the Metro), and attending games there will
be considerably easier and more inviting for wheelchair users and their
companions.

Indeed, in addition to mandating architectural accessibility, the ADA
also aims to change many other factors which have limited the ability of
individuals with disabilities to participate in social and leisure
activities. By improving access to education and employment
opportunities for individuals with disabilities \-- and thereby raising
their level of disposable income \-- the ADA will enable individuals
with disabilities to do many things they have not been able to do
before, including buying tickets and attending games, concerts, and
other events. In all of this, the ADA is forward-looking: the
requirements for accessibility applicable to the MCI Center are designed
to insure not just that the facility\'s capacity for wheelchair users
will be adequate when it opens in 1997, but also in 2007, 2017, and
2027, when it will still be in operation, and the effects of the ADA in
making accessible all aspects of our society will have been more
completely realized.

Given the defendants\' admission that there are several ways in which to
provide wheelchair users at the MCI Center with comparable lines of
sight \-- ways which will not require the halting of construction \--
there is every reason to grant the plaintiffs\' request to require the
defendants to redesign the MCI Center\'s wheelchair seating locations,
so that the facility will be in compliance with the ADA when it opens in
1997.[^16]

**E. Architects \-- like defendants Ellerbe Becket Architects &
Engineers, P.C., and Ellerbe Becket, Inc. \-- are covered by the new
construction provision of the ADA, and are properly subject to
injunctive relief.**

As described above, section 302(a) of the statute contains the basic
non-discrimination provision, and section 302(b) defines several types
of prohibited activity. Section 303 of the Act adds an additional
category of prohibited activity \-- the design and construction of
inaccessible facilities \-- and extends its coverage to an additional
category of buildings \-- commercial facilities. In doing so, section
303 brings within its coverage additional parties: those who design and
construct new buildings, such as architects, engineers, contractors, and
other building professionals. In contending that the ADA does not reach
them, the Ellerbe Becket defendants misconstrue the statute.

Section 302(a) specifies that it applies to private entities that own,
operate, or lease places of public accommodation. 42 U.S.C. § 12182(a).
This is unsurprising, given that sections 302(a) and 302(b) prohibit
various activities related to the operation of public accommodations,
and their provision of goods and services (including a requirement to
make architectural changes to make public accommodations more accessible
to individuals with disabilities) \-- the parties that own, operate, or
lease those facilities are the parties that control the operation of
these entities, and that are able to effect the necessary changes.

Unlike section 302, section 303 does not separately designate the
parties responsible for compliance with its mandate. Because section 303
applies to both public accommodations and commercial facilities,
however, it would be quite surprising to find that its obligations were
limited to only those parties who have obligations under section 302:
\"any person who owns, leases (or leases to), or operates [a place of
public accommodation]{.underline}.\" 42 U.S.C. § 12182(a) (emphasis
added). Indeed, such a reading would make meaningless section 303\'s
inclusion of commercial facilities.[^17] As noted above, *see* note 3,
*supra*, excluding this broad category of facilities would exclude from
the ADA\'s coverage many types of buildings not included within the
definition of places of public accommodation. For instance, many office
buildings, warehouses, and factories are commercial facilities, but are
not places of public accommodation.

Construction of the language of section 303 must begin with the
statutory language itself, and the structure and purpose of the statute.
[Ingersoll-Rand Co. v. McClendon]{.underline}, 498 U.S. 133, 138 (1990).
Section 303(a) provides that:

> as applied to public accommodations and commercial facilities,
> discrimination for purposes of section 302(a) of this title includes
>
> \(1\) a failure to design and construct facilities for first occupancy
> later than \[January 26, 1993\] that are readily accessible to and
> usable by individuals with\
> disabilities . . .

42 U.S.C. § 12183(a). By including the term \"design\" in paragraph (1),
Congress clearly indicated that those who design new facilities \--
architects and engineers \-- have obligations under the ADA. The
provision certainly could have been drafted differently: Congress could
have written this paragraph without using the word \"design,\"
addressing itself only to the end result by simply making it illegal to
construct inaccessible facilities. By including \"design\" in the
description of the prohibited conduct, however, Congress brought within
the Act\'s coverage not just those parties who are ultimately
responsible for the construction of a new facility (the owners of the
facility), but also those parties who play a role in the design of a
building. In designing new buildings, those parties must ensure that the
building is accessible to persons with disabilities.[^18]

Under well-established canons of statutory construction, in addition to
examining the text of the statute, the Court must also look to its
remedial purposes.[^19] By including within the coverage of section 303
those with control over design and construction, Congress chose the path
that would best safeguard its stated purpose, \"that, over time, access
will be the rule rather than the exception.\" H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 3, at 63 (1990). Indeed, Congress intended strict
adherence to section 303. Unlike section 302, where Congress provided a
number of statutory cost defenses, in section 303, Congress drew a line
in the sand and determined that from January 26, 1993 forward, all new
buildings must be fully accessible to individuals with disabilities.
*See* [id]{.underline}. (\"The ADA is geared to the future . . . Thus,
the bill only requires modest expenditures to provide access in existing
facilities, while requiring all new construction to be accessible.\").
Placing responsibility for compliance not just on owners of buildings,
but also on the architects, engineers, and other building professionals
on whose judgment and expertise owners rely, best effectuates a fully
accessible future. This is particularly true in a case like this one,
involving a large, complex, indoor sports and multi-purpose arena, where
an owner must rely very heavily on architects and engineers with highly
specialized expertise. In such a case, an owner will in many instances
simply be unable to judge whether the building professionals to whom he
has entrusted his project are complying with the statute, and will not
realistically be in a position to identify and prevent ADA violations.

Given the incongruity of limiting section 303 (which plainly covers
commercial facilities) to parties who own, operate or lease public
accommodations, Congress\' use of the term \"design\" in section 303,
and the importance of construing the ADA in a manner consistent with
Congress\' stated goals, the most sensible reading of section 303\'s
reference to section 302(a) is that section 303 refers to section 302(a)
[not]{.underline} to identify the parties that may be held liable under
section 303, but rather to indicate that the failure to design and
construct accessible facilities constitutes another type of
\"discrimination on the basis of disability.\" This interpretation gives
full effect to the terms of the provision. *See* [Moskal v. United
States]{.underline}, 498 U.S. 103, 109-10 (1990) (courts should
interpret statutes in a manner that gives effect to every clause and
word of the statute) (quoting [United States v. Menasche]{.underline},
348 U.S. 528, 538-39 (1955) (same)).[^20]

**F. Plaintiffs have standing to sue, and this action is ripe.**

Defendant D.C. Arena L.P. has moved to dismiss the plaintiffs\' action
on grounds that the plaintiffs do not have standing to sue, and that
their action is not ripe. In support of its motion, D.C. Arena L.P.
argues that the plaintiffs have alleged no legally cognizable injury,
and that any potential injury remains speculative, because construction
is not complete.[^21]

*1. Plaintiffs have alleged a real, concrete injury.*

For purposes of standing to sue under Article III of the Constitution a
cognizable injury consists of \"the invasion of a legally protected
interest which is concrete and particularized and actual and imminent,
not conjectural or hypothetical.\" [Lujan v. Defenders of
Wildlife]{.underline}, 504 U.S. 555, 559 (1992).[^22] Congress can act
to confer rights, the invasion of which is sufficient to constitute
injury for standing purposes. [Warth v. Seldin]{.underline}, 422 U.S.
490, 500 (1975). Given the ADA\'s protection of individuals with
disabilities against disability-based discrimination, there simply is no
merit in the argument of defendant D.C. Arena L.P. that no such legally
protected right is implicated here. The injury alleged by the plaintiffs
is entirely sufficient to confer standing upon them.

It can hardly be disputed that the ADA in general protects individuals
with disabilities from disability-based discrimination, or that title
III of the ADA in particular protects wheelchair users from
disability-based discrimination in public accommodations and commercial
facilities. As Congress expressly found in passing the ADA,

> unlike individuals who have experienced discrimination on the basis of
> race, color, sex, national origin, religion, or age, individuals who
> have experienced discrimination on the basis of disability have often
> had [no legal recourse]{.underline} to redress such discrimination.

42 U.S.C. § 12101(a)(4) (emphasis added). Thus, a primary purpose of the
ADA is \"to provide clear, strong, consistent, [enforceable]{.underline}
standards addressing discrimination against individuals with
disabilities,\" 42 U.S.C. § 12101(b)(2), and Congress specifically
included a private right of action in the statute\'s enforcement
scheme.[^23]

The legal interests protected by the ADA specifically include protection
from the discriminatory effects of new buildings that are designed and
constructed to be inaccessible to or unusable by such individuals. The
statute and regulation protect the right to be able to have access to
and make full use of such buildings, on a basis equivalent to that of
other members of our society. In the case of new sports arenas, the
rights of individuals with disabilities specifically include the right
to have a choice of seating options in all parts of the stadium, and to
be able to see the action on the floor from whatever location is chosen.

Defendant D.C. Arena L.P. makes several attempts to trivialize the
plaintiffs\' interest in having the MCI Center designed and constructed
according to the requirements of the ADA, repeatedly characterizing
their claim as grounded in no more than an \"anxiety\" or
\"apprehension\" that the facility will not provide them with seating
\"in positions they consider desirable.\" Memorandum to Dismiss of D.C.
Arena L.P. at 6, 7. Plaintiffs, however, face the very kind of exclusion
that the ADA aims to prevent \-- relegation to second-class citizenship
status by placement in inferior seating locations, or locations that
will not allow them to see what is happening. The defendant\'s attempt
to minimize that injury is tantamount to an attack on the statute itself
\-- a suggestion that the rights the ADA protects are of little
significance, and not worthy of recognition. The answer to such an
argument is that the Congress took a different view.

*2. The plaintiffs\' claims are ripe for review.*

In addition to being legally cognizable, in order to confer jurisdiction
on a federal court, the injury asserted by a plaintiff must be
\"certainly impending.\" [Lujan]{.underline}, 504 U.S. at 565 n.2;
[Whitmore v. Arkansas]{.underline}, 495 U.S. 149, 158 (1990). The
plaintiffs\' claims meet this requirement.

First, Congress has specifically addressed itself to the degree of
immediacy that must be shown in order to bring an action to prevent a
new facility from being designed and constructed in violation of the
ADA. Title III of the ADA specifically authorizes actions to enforce the
statute by any person \"who has reasonable grounds for believing that
such person is about to be subjected to discrimination in violation of
section 12183 of this title.\" 42 U.S.C. § 12188(a)(1). The statute
further provides that \"\[n\]othing in this section shall require a
person with a disability to engage in a futile gesture if such person
has actual notice that a person or organization covered by this
subchapter does not intend to comply with its provisions.\"
[Id]{.underline}. That is, knowing that the blueprints for the MCI
Center call for wheelchair locations which will not comply with the
Standards\' line of sight requirements, the plaintiffs need not wait for
the arena to be built, go to an event, be unable to see, and then file
their action.

Moreover, D.C. Arena L.P. itself argues forcefully that construction of
the MCI Center is well underway (and provides affidavits to show it),
making clear the plaintiffs\' claims are \"certainly impending.\"
According to the defendants, the MCI Center is \"being built on an
unusually fast and demanding schedule.\" Memorandum of D.C. Arena L.P.
at 16. Mr. Stranix, the chief operating officer of D.C. Arena L.P.,
explains in his affidavit that as of June 25, 1996, 88% of the
excavation work has been completed, and 90% of the foundation work has
been completed. Stranix Aff. ¶¶ 10, 11, 12. Nearly 7,000 tons of steel
have been ordered, and fabrication has begun. [Id]{.underline}. ¶ 13.

There is nothing conjectural or speculative about the plaintiffs\' case.
The current plans for the arena plainly show that the vast majority of
all wheelchair seating locations will not provide lines of sight over
standing spectators (and the defendants do not dispute this). Defendant
D.C. Arena L.P. responds instead that \"the seating plan\" is not yet
finalized. Memorandum of D.C. Arena L.P. in Support of Motion to Dismiss
at 4. As is explained by Mr. Stranix, however, what is not final is the
selection of a seating supplier, and the selection of seats for the
arena. Stranix Aff. ¶ 19. Those choices will have little impact on the
issues raised by plaintiffs. The ability of wheelchair users to see what
is happening on the floor will depend not on whether the arena uses 18\"
wide or 20\" wide seats, but rather on the placement and elevation of
wheelchair locations relative to the placement and elevation of other
seating. And those choices have already been made: as Mr. Stranix
explains, the pre-cast concrete risers on which both standard seats and
wheelchair locations will be placed are a \"long lead-time item\"; they
will be erected along with the facility\'s structural steel, and as of
June 25, all shop drawings for the risers have been completed, and over
300 of them have been finally cast. Stranix Aff. ¶ 14. The plaintiffs\'
concerns about their inability to see are, quite literally, being set in
concrete.

**IV. CONCLUSION**

For the reasons stated above, the United States respectfully urges this
Court to grant the plaintiffs\' application for a preliminary
injunction, so that the designs for the MCI Center may be brought into
compliance with the requirements of title III of the ADA, including the
Standards for Accessible Design, and to deny the defendants\' motions to
dismiss.

Respectfully submitted,

ERIC H. HOLDER, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

District of Columbia Civil Rights Division

[                           ]{.underline}

JOHN L. WODATCH

District of Columbia Bar

Number 344523

JOAN A. MAGAGNA

District of Columbia Bar

Number 910885

THOMAS M. CONTOIS

North Carolina Bar

Number 17787

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6014

Dated: July 10, 1996

[^1]: ^?^Although only one defendant, D.C. Arena L.P, has filed a
    memorandum in opposition to the plaintiffs\' application for a
    preliminary injunction, other defendants \-- including Ellerbe
    Becket Architects & Engineers, P.C., Ellerbe Becket, Inc., and D.C.
    Arena Associates \-- have filed statements joining in the arguments
    presented by defendant D.C. Arena L.P. Accordingly, in discussing
    the arguments against the plaintiffs\' application, this memorandum
    refers to the defendants collectively, unless the context requires
    otherwise.

[^2]: ^?^The Ellerbe Becket defendants have also moved to dismiss the
    claim against them under the District of Columbia\'s Human Rights
    Act, D.C. Code §§ 1-2501 *et seq*. The United States does not
    address any issues relating to the D.C. Human Rights Act.

[^3]: ^?^The ADA defines commercial facilities very broadly as all
    facilities intended for non-residential use whose operations affect
    commerce (with the exception of certain railroad facilities and
    equipment, and certain facilities covered by the Fair Housing Act).
    *See* 42 U.S.C. § 12181(2). The statute defines \"public
    accommodations\" to be entities (1) whose operations affect
    commerce, and (2) that fall into one or more of twelve categories of
    public accommodations set out in the Act. *See* 42 U.S.C. §
    12181(7). The category of public accommodations, while still large,
    is not as broadly inclusive as \"commercial facilities.\"

    Many facilities meet both definitions. The MCI Center, for instance,
    is clearly a non-residential facility whose operations affect
    commerce, and thus is a \"commercial facility.\" It also is a
    \"public accommodation,\" as it falls within at least two of the
    statute\'s categories of public accommodation: it is a motion
    picture house, theater, concert hall, stadium, or other place of
    exhibition or entertainment, within the meaning of section
    301(7)(C), and it is also an auditorium, convention center, lecture
    hall, or other place of public gathering, within the meaning of
    section 301(7)(D). *See* 42 U.S.C. §§ 12181(7)(C), (D).

[^4]: ^?^The Access Board is composed of twenty-two members, eleven of
    whom are members of the public appointed by the President, and
    eleven of whom are representatives of federal agencies. 29 U.S.C. §
    792(a)(1). The Attorney General, as head of the Department of
    Justice, is one of the eleven federal members of the Board. 29
    U.S.C. § 792(a)(1)(B).

[^5]: ^?^An \"assembly area\" is defined by the Standards to be any

    > room or space accommodating a group of individuals for
    > recreational, educational, political, social, or amusement
    > purposes, or for the consumption of food and drink.

    Standards § 3.5 (definition of assembly area). The Standards require
    that assembly areas with fixed seating provide a certain number of
    wheelchair seating locations (tied to the total number of fixed
    seats in the assembly area), and that these wheelchair seating
    locations comply with various requirements governing their size,
    floor surface, placement, companion seating, and so on. *See*
    Standards § 4.1.3(19).

[^6]: ^?^The Department most recently addressed this issue in a
    four-page document entitled \"Accessible Stadiums,\" which was first
    distributed publicly in May 1996. Among other things, this document
    explains the Department\'s view that

    > \[i\]n stadiums where spectators can be expected to stand during
    > the show or event (for example, football, baseball, basketball
    > games, or rock concerts), all or substantially all of the
    > wheelchair seating locations must provide a line of sight over
    > standing spectators. A comparable line of sight . . . allows a
    > person using a wheelchair to see the playing surface between the
    > heads and over the shoulders of the persons standing in the row
    > immediately in front and over the heads of the persons standing
    > two rows in front.

    Accessible Stadiums at 2. The document includes a diagram depicting
    comparable lines of sight for wheelchair users. A copy is attached
    as Exhibit B.

[^7]: ^?^The wheelchair seating locations at two other newly constructed
    Olympic venues \-- outdoor stadiums at Clark Atlanta University and
    Morris Brown College \-- will also have lines of sight over standing
    spectators. In addition, a fourth Olympic venue, the newly
    constructed aquatic center (on the campus of the Georgia Institute
    of Technology) will have wheelchair locations with lines of sight
    over standing spectators in its permanent seating sections. When
    temporary seating is added for the Summer Games, half of the
    wheelchair locations in that seating will also provide lines of
    sight over standing spectators.

[^8]: ^?^For the sake of convenience, the various playing and performing
    surfaces that will be employed at the MCI Center are referred to
    hereafter as the arena \"floor.\"

[^9]: ^?^In discussing the Title III Technical Assistance Manual, the
    defendants make several references to \"a subordinate office\"
    within the Justice Department, seeming to suggest that the
    Department\'s Civil Rights Division did not have authority to author
    or issue the Technical Assistance Manual, or to interpret or enforce
    the statute. Defendants\' suggestion is disingenuous. There is
    nothing \"unofficial\" about the TA Manual or its updates; the
    authority to carry out particular governmental functions is
    frequently delegated to \"subordinate\" officials, and the authority
    to enforce and administer the ADA has been expressly delegated to
    the Assistant Attorney General for the Civil Rights Division. *See*
    28 C.F.R. § 0.50(l). *See also* [United States v.
    Giordano]{.underline}, 416 U.S. 505, 513-14 (1974) (accepting as
    \"unexceptionable\" the general proposition that \"merely vesting a
    duty in the Attorney General . . . evinces no intention whatsoever
    to preclude delegation to other officers in the Department of
    Justice.\")

[^10]: ^?^The purpose of the Technical Assistance Manual is described in
    its introduction:

    > The purpose of this technical assistance manual is to present the
    > ADA\'s title III requirements in a format that will be useful to
    > the widest possible audience. The guidance provided in the
    > Department\'s regulations and accompanying preambles has been
    > carefully reorganized to provide a focused, systematic description
    > of the ADA\'s requirements. The manual attempts to avoid an overly
    > legalistic style without sacrificing completeness. In order to
    > promote readability and understanding, the text makes liberal use
    > of questions and answers and illustrations.

    U.S. Department of Justice, [The Americans with Disabilities Act
    Title III Technical Assistance Manual]{.underline}, Introduction
    (Nov. 1993). Thus, the TA Manual is not in any sense a regulation.
    It provides informal guidance about the Department\'s interpretation
    of the ADA\'s statutory and regulatory requirements.

[^11]: ^?^The defendants suggest that the Department of Justice\'s
    interpretations of the Standards do not deserve deference because
    they come from \"lawyers in a subordinate office of the Civil Rights
    Division . . . who have no discernible expertise in designing
    buildings.\" Memorandum of D.C. Arena L.P. at 38. Evidently, the
    defendants are unaware of the level of expertise possessed by the
    Department. The Civil Rights Division employs five licensed
    architects to work exclusively on issues of accessible design
    arising in the course of the Department\'s ADA enforcement,
    regulatory, and technical assistance efforts. The Division also
    employs several other individuals with expertise in a variety of
    other technical subjects covered by the title III regulation and the
    Standards, including, for instance, assistive listening systems and
    devices and other technologies of use to individuals with speech,
    hearing, or vision impairments.

[^12]: ^?^While the defendants are correct in pointing out there are
    cases in which federal courts have refused to defer to the EEOC\'s
    Title I Technical Assistance Manual, *see* Memorandum of D.C. Arena
    L.P. at 33-34, other federal courts have deferred to the Title I TA
    Manual. *See* [Thompson v. Borg-Warner Protective Services
    Corp.]{.underline}, No. C-94-4015 MHP, 1996 WL 162990 at \*4 (N.D.
    Cal. Mar. 11, 1996) (according \"broad deference to interpretations
    in the EEOC 1995 ADA Manual on Enforcement Guidance as 1995
    Guidance, citing [Chevron]{.underline}); [Le v. Applied
    Biosystems]{.underline}, 886 F. Supp. 717, 720 n.2 (N.D. Cal. 1995)
    (\"Although not binding on \[the\] court, \[the Title I TA
    Manual\'s\] interpretation of the ADA is instructive\").

[^13]: ^?^*See, e.g.*, [Holihan v. Lucky Stores, Inc.]{.underline}, No.
    95-55409, 1996 WL 346624 at \*4 n.3 (9th Cir. June 26, 1996) (Title
    I); [Kornblau v. Dade County]{.underline}, No. 95-4100, 1996 WL
    196824 at \*3 (11th Cir. June 20, 1996) (Title III); [Benson v.
    Northwest Airlines, Inc.]{.underline}, 62 F.3d 1108, 1123, 1114 (8th
    Cir. 1995) (Title I); [Milton v. Scrivner, Inc.]{.underline}, 53
    F.3d 1118, 1124 (10th Cir. 1995) (Title I); [Adelman v.
    Dunmire]{.underline}, No. CIV.A. 95-4039, 1996 WL 107853 at \*5 n.7
    (E.D. Pa. Mar. 12, 1996) (title II); [Civic Ass\'n. of the Deaf,
    Inc. v. Giuliani]{.underline}, 915 F.Supp. 622, 635 (S.D.N.Y. 1996)
    (Title II); [Dertz v. City of Chicago]{.underline}, 912 F. Supp. 319
    (N.D. Ill. 1995) (Title II); [Clarkson v. Coughlin]{.underline}, 898
    F. Supp. 1019, 1037-38 (S.D.N.Y. 1995) (Title II); [Bechtel v. East
    Penn Sch. Dist.]{.underline}, No. Civ. A. 93-4898, 1994 WL 3396 at
    \*2-\*3 (E.D. Pa. Jan. 4, 1994); [Petersen v. University of Wis. Bd.
    of Regents]{.underline}, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993)
    (Title II); [Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D.
    Ind. 1993) (Title II).

[^14]: ^?^It should not be surprising that additional material has been
    added to the TA Manuals over time. As the Department pursues its
    enforcement and technical assistance mandates, it becomes clear \--
    as one might expect with a new statute and new regulation \-- that
    particular issues are not fully understood, and that additional
    guidance will assist covered entities and individuals with
    disabilities understand their respective rights and obligations.
    Thus, the Department publishes supplements to the Technical
    Assistance Manual, addressing a variety of issues that arise in the
    course of its enforcement and technical assistance efforts. The
    supplements, like the TA Manual itself, cover all aspects of the
    title III regulation, including the Standards for Accessible Design
    (and the requirements for wheelchair seating locations in stadiums
    and arenas).

[^15]: ^?^The legislative history of the ADA makes clear that Congress
    recognized the magnitude of this problem, and acted to address it:

    Based on testimony presented at the hearings and recent national
    surveys and reports, it is clear that an overwhelming majority of
    individuals with disabilities lead isolated lives and do not
    frequent places of public accommodation.

    The National Council on Disability summarized the findings of a
    recent Lou Harris poll:

    The survey results dealing with social life and leisure experiences
    paint a sobering picture of an isolated and secluded population of
    individuals with disabilities. The large majority of people with
    disabilities do not go to movies, do not go to the theater, do not
    go to see musical performances, and do not go to sports events. A
    substantial minority of persons with disabilities never go to a
    restaurant, never go to a grocery store, and never go to a church or
    synagogue \* \* \* The extent of non-participation of individuals
    with disabilities in social and recreational activities is alarming.

    Several witnesses addressed the obvious question \"Why don\'t people
    with disabilities frequent places of public accommodation and stores
    as often as other Americans?\" Three major reasons were given by
    witnesses. The first reason is that people with disabilities do not
    feel that they are welcome and can participate safely in such
    places. The second reason is fear and self-consciousness about their
    disability stemming from degrading experiences they or their friends
    with disabilities have experienced. The third reason is
    architectural, communication, and transportation barriers.

    S. Rep. No. 116, 101st Cong., 1st Sess. 10-11 (1989). *See also* H.
    R. Rep. No. 485, 101st Cong., 2d Sess. pt. 2, at 34-35 (1990)
    (same).

[^16]: ^?^The defendants offer several possible remedial measures for
    providing lines of sight over standing spectators, arguing that
    these measures do not require construction to be halted, and that
    implementing these measures will be less burdensome than the burdens
    that would flow from halting construction. Memorandum of D.C. Arena
    L.P. at 5-6, 16-17, 18. While some of the defendants\' proposed
    remedies would not comply with the requirements of title III and the
    Standards, others do offer the possibility of bringing the facility
    into compliance with the ADA.

    The remedies suggested by the defendants that offer some promise
    are: providing additional wheelchair seating locations in the front
    row of the Lower Bowl, increasing the elevation of the wheelchair
    seating locations in the upper part of the Lower Bowl, and replacing
    one or more suites with sections of wheelchair seating locations. It
    is likely that in order to reach the required number of wheelchair
    seating locations with comparable lines of sight, a combination of
    these measures will have to be employed. (Using a combination of
    these measures also helps to insure that wheelchair seating
    locations will be available in different locations around the
    stadium, so that spectators using wheelchairs will have a choice of
    seating areas and admission prices, as required by section 4.33.3 of
    the Standards).

    At least two other remedies proposed by the defendants are
    unacceptable, because they rely on operational measures as opposed
    to design solutions. The focus of the ADA\'s new construction
    requirement is that new facilities be [designed and
    constructed]{.underline} to be readily accessible to and usable by
    individuals with disabilities; compliance with the new construction
    requirements of the ADA cannot depend on making special, *ad hoc*
    arrangements or accommodations that allow people with disabilities
    to gain access to and participate in the daily activities and events
    that the rest of our society takes for granted. To propose building
    the MCI Center in a fashion that is not accessible \-- with a
    proviso that the operators of the facility will attempt to cure the
    accessibility problems operationally every time there is an event at
    the facility \-- is to propose creating exactly the kind of
    situation that the ADA\'s new construction provision is intended to
    prevent.

    Thus, this Court should reject the defendants\' proposal to
    implement \"measures to ensure that patrons who could block the view
    of a patron using a wheelchair do not stand up during events.\"
    Memorandum of D.C. Arena L.P. at 6. Even if such measures were
    effective \-- which seems very unlikely \-- they have a real
    potential to cause considerable ill will toward the wheelchair users
    at the back of the section. Similarly, \"withholding from sale seats
    in the two rows located immediately in front of the numerous
    third-row wheelchair accessible locations\" is unacceptable. *See*
    Memorandum of D.C. Arena L.P. at 5-6. Not selling tickets for those
    seats does not mean that those seats will be empty; other patrons
    may well move down from other seats to occupy them, and once again
    wheelchair users will be forced to rely on others \-- their
    companions, arena personnel (who may or may not be at hand), or the
    spectators in front of them \-- to allow them to see and participate
    in the event.

[^17]: ^?^The defendants have not argued \-- and presumably they will
    not argue \-- that the language of section 302 could be read to
    apply to parties who \"own, lease (or lease to), or operate\"
    [commercial facilities]{.underline}. Nowhere in section 302 or
    section 303 \-- or anywhere else in the Act \-- are the terms \"own,
    lease (or lease to), or operate\" applied to \"commercial
    facilities.\"

[^18]: ^?^The Ellerbe Becket defendants also argue that they cannot be
    held responsible for ADA violations at the MCI Center because they
    are only designing the facility, not designing [and]{.underline}
    constructing it. Memorandum of Ellerbe Becket Defendants at 8-9,
    n.3. The Ellerbe Becket defendants have again misread the statute.
    Section 303 is properly read to apply to the entire process of
    building a facility \-- the \"design and construction\" of a public
    accommodation or commercial facility. It thus requires all parties
    involved in that process to conform their involvement, whatever its
    scope, to the requirements of the ADA. If one parses the language as
    Ellerbe Becket suggests \-- separating \"design\" from \"construct\"
    \-- absurd results follow. Under that reading of section 303, so
    long as a facility were [designed]{.underline} to be in compliance
    with the ADA, the owner and contractor could freely depart from the
    designs during construction, eliminating accessible features as they
    wished, and there would be no violation of the ADA, because the
    building was not designed [and]{.underline} constructed in violation
    of the ADA. It is well-recognized that statutes must not be
    construed in a manner that yields \"odd\" or \"absurd\" results.
    *See* [United States v. X-Citement Video, Inc.]{.underline}, 115 S.
    Ct. 464, 467 (1994).

[^19]: ^?^*See* [Peyton v. Rowe]{.underline}, 391 U.S. 54, 65 (1968)
    (civil rights legislation should be liberally construed in order to
    effectuate its remedial purpose); [Tcherepnin v.
    Knight]{.underline}, 389 U.S. 332, 336 (1967) (it is a \"familiar
    canon of statutory construction that remedial legislation should be
    construed broadly to effectuate its purposes\"). The D.C. Circuit
    has also recognized that \"remedial statutes are to be liberally
    construed to effectuate their purposes.\" [Rettig v. Pension Benefit
    Guar. Corp.]{.underline}, 744 F.2d 133, 155 n.54 (D.C. Cir. 1984).
    *See also* [Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler\'s
    Ass\'n]{.underline}, 37 F.3d 12, 18 (1st Cir. 1994) (broadly
    construing the ADA); [Kinney v. Yerusalim]{.underline}, 9 F.3d 1067
    (3d Cir. 1993) (same), [cert. denied]{.underline} [sub]{.underline}
    [nom.]{.underline} [Hoskins v. Kinney]{.underline}, 114 S. Ct. 1545
    (1994); [Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994)
    (same).

[^20]: ^?^The Department of Justice has also taken this position in its
    Technical Assistance Manual. *See* [THE AMERICANS WITH DISABILITIES
    ACT Title III Technical Assistance Manual]{.underline}, Covering
    Public Accommodations and Commercial Facilities, November 1993,
    III-5.1000 (General). As discussed at some length above, because the
    Department is the executive agency charged with administering title
    III of the ADA, its interpretations of the statute and its
    regulation are entitled to substantial deference.

[^21]: ^?^To the extent D.C. Arena L.P.\'s argues that violation of
    rights protected by the ADA is not a legally cognizable injury for
    standing purposes, and that an action alleging imminent construction
    of a building designed to be in violation of the ADA is not ripe,
    the Department of Justice has a strong interest in addressing D.C.
    Arena L.P.\'s arguments. As the Supreme Court has often noted,
    effective enforcement of the nation\'s civil rights laws depends in
    large part on the private right of action included in the statute.
    *See, e.g.*, [Alexander v. Gardner-Denver Co.]{.underline}, 415 U.S.
    36, 45 (1974) (title VII of the 1964 Civil Rights Act (employment));
    [Trafficante v. Metropolitan Life Ins. Co.]{.underline}, 409 U.S.
    205, 211 (1972) (title VIII of the 1968 Civil Rights Act (fair
    housing)); [Newman v. Piggie Park Enterprises, Inc.]{.underline},
    390 U.S. 400, 401-402 (1968) (title II of the 1964 Civil Rights Act
    (public accommodations)). Any attempt to limit the ability of
    private parties to bring actions to enforce the statute is therefore
    of considerable interest to the Attorney General, as it could have
    the effect of making her efforts to enforce the statute that much
    more difficult.

[^22]: ^?^In making its standing argument, D.C. Arena L.P. argues only
    that plaintiffs have suffered no legally cognizable injury. *See*
    Memorandum of D.C. Arena L.P. in Support of Motion to Dismiss at
    5-7. No issue has been raised with regard to the other
    constitutionally-required elements of standing, commonly referred to
    as \"traceability\" and \"redressability.\"

[^23]: ^?^For private suits, title III of the ADA adopts the \"remedies
    and procedures\" set forth in title II of the 1964 Civil Rights Act,
    42 U.S.C. § 2000a-3(a), which provides:

    \[w\]henever any person has engaged or there are reasonable grounds
    to believe that any person is about to engage in any act or practice
    prohibited by section 2000a-2 of this title, a civil action for
    preventive relief, including an application for a\[n\] . . .
    injunction . . . may be instituted by the person aggrieved\[.\]

    42 U.S.C. § 2000a-3(a).