BILL LANN LEE

Acting Assistant Attorney General

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

Civil Rights Division

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

SHIRLEY WANG

Assistant United States Attorney

California Bar No. 181669

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-0474

Facsimile: (213) 894-7819

JEANINE M. WORDEN

JOHN A. RUSS IV

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

1425 New York Avenue, N.W.

Room 4073

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 307-6556

Telephone: (202) 353-7738

Facsimile: (202) 307-1198

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Case No.: CV-99-01034-FMC (Shx)

)

Plaintiff ) **PLAINTIFF UNITED STATES'**

v\. ) **MEMORANDUM IN SUPPORT**

) **OF ITS MOTION TO DISMISS**

AMC ENTERTAINMENT, INC., ) **DEFENDANT STK'S COUNTERCLAIM**

[et]{.underline} [al]{.underline}., )

) Judge: Florence-Marie Cooper

Defendants. ) Date: May 22, 2000

) Time: 10 a.m.

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** iii

**PRELIMINARY STATEMENT** 1

**STATUTORY AND FACTUAL BACKGROUND** 2

**ARGUMENT** 4

> **I. Under the Law of the Case Doctrine, the Court Has Already
> Rejected All Possible Grounds for Demonstrating Final Agency Action**
> 4
>
> **II. There is No Final Department of Justice Action That Can Justify
> Judicial Review** 7
>
> A. The Administrative Procedure Act Is the Only Possible Source for a
> Waiver of Sovereign Immunity That Would Give This Court Jurisdiction
> over STK's Counterclaim 7
>
> B. The Department of Justice\'s Interpretation of Standard 4.33.3 Is
> Not \"Final Agency Action\" Subject to Judicial Review Under the
> Administrative Procedure Act 8
>
> 1\. The Department Is Simply Attempting to Enforce the Plain Language
> of Standard 4.33.3 8
>
> 2\. Because the Department Has Not Engaged in Final Agency Action in
> Attempting to Enforce the ADA and Its Regulations, This Court Lacks
> Jurisdiction to Hear STK's Counterclaim 12
>
> C. Further Discovery in This Case Will Not Reveal Any Final Agency
> Action 17
>
> D. The Court Need Not Reach the Issue of Whether STK Has an Adequate
> Remedy in a Court Because STK Cannot Point to Any Action by the
> Department in this Case that Constitutes Final Agency Action. 19

**CONCLUSION** 20

**TABLE OF AUTHORITIES**

**[CASES]{.underline}**

[Allsteel, Inc. v. United States EPA]{.underline}, 25 F.3d 312 (6th Cir.
1994) 15

[American Mining Congress v. Mine Safety & Health Admin.]{.underline},
995 F.2d 1106 (D.C. Cir. 1993)

> 16

[Arizona Past & Future Foundation, Inc. v. Lewis]{.underline}, 722 F.2d
1423 (9th Cir. 1983) 17

[Association of Public Agency Customers v. Bonneville Power
Admin.]{.underline}, 126 F.3d 1158 (9th Cir. 1997) 12, 17, 18

[Auer v. Robbins]{.underline}, 519 U.S. 452, 117 S. Ct. 905 (1997) 11

[Bennett v. Spear]{.underline}, 520 U.S. 154 (1997) 12

[Black Construction Corp. v. INS]{.underline}, 746 F.2d 503 (9th Cir.
1984) 17

[Board of Trade of the City of Chicago v. SEC]{.underline}, 883 F.2d 525
(7th Cir. 1989) 6, 18

[Bragdon v. Abbott]{.underline}, 524 U.S. 624, 118 S. Ct. 2196, 141 L.
Ed. 2d 540 (1998) 11

[Camp v. Pitts]{.underline}, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d
106 (1973) 17

[Cinemark v. United States Dept of Justice]{.underline}, 99-CV-0183 6

[Dow Chemical v. United States EPA]{.underline}, 832 F.2d 319 (5th Cir.
1987) 9, 12, 14-15

[Duval Ranching Co. v. Glickman]{.underline}, 965 F. Supp. 1427 (D. Nev.
1997) 6

[E.J. Friedman Co., v. United States]{.underline}, 6 F.3d 1355 (9th Cir.
1993) 7, 13, 14

[F.E. Trotter, Inc. v. Watkins]{.underline}, 869 F.2d 1312 (9th Cir.
1989) 19

[FTC v. Standard Oil Co. of Cal.]{.underline}, 449 U.S. 232, 101 S. Ct.
488, 66 L. Ed. 2d 416 (1980)

> 6, 9, 13, 16, 18

[First Nat\'l Bank v. Steinbrink]{.underline}, 812 F. Supp. 849 (N.D.
Ill. 1993) 20

[Friends of the Earth v. Hintz]{.underline}, 800 F.2d 822 (9th Cir.
1986) 17

[Gallo Cattle Co. v. United States Dep\'t of Agriculture]{.underline},
159 F.3d 1194 (9th Cir. 1998)

> 7, 8, 12, 16, 18, 19

[Georgia v. City of Chattanooga, Tennessee]{.underline}, 264 U.S. 472
(1924) 19

[Grider v. Cavazos]{.underline}, 911 F.2d 1158 (5th Cir. 1990) 10

[Heckler v. Chaney]{.underline}, 470 U.S. 821, 105 S. Ct. 1649, 84 L.
Ed. 2d 714 (1985) 8, 13

[Kokkonen v. Guardian Life Ins. Co.]{.underline}, 511 U.S. 375 (1994) 8

[Lara v. Cinemark]{.underline}, 1998 WL 1048497 (W.D. Tex. 1998) 4

[Lara v. Cinemark]{.underline}, 2000 WL 297662 (5th Cir. April 6, 2000)
4

[Marshall Leasing, Inc. v. United States]{.underline}, 893 F.2d 1096
(9th Cir. 1990) 7, 19

[Mt. Adams Veneer Co. v. United States]{.underline}, 896 F.2d 339 (9th
Cir. 1990) 6, 12, 13, 18

[NAACP v. Meese]{.underline}, 615 F. Supp. 200 (D.D.C. 1985) 19

[National Labor Relations Bd. v. Sears, Roebuck & Co.]{.underline}, 421
U.S. 132 (1975) 6, 13, 18

[National Union Automatic Laundry & Cleaning Council v.
Shultz]{.underline}, 443 F.2d 689 (D.C. Cir. 1970) 5, 16-17

[New Jersey Hosp. Ass\'n United States]{.underline}, 23 F. Supp. 2d 497
(D. N.J. 1998) 6, 14, 18, 19

[Olmstead v. Zimring]{.underline}, 119 S. Ct. 2176 (1999) 11

[Orengo Caraballo v. Reich]{.underline}, 11 F.3d 186 (D.C. Cir. 1993) 15

[Resident Council of Allen Parkway Village v. United States Dep't of
Housing & Urban Development]{.underline}, 980 F.2d 1043 (5^th^ Cir.
1993) 15

[Solar Turbines Inc. v. Seif]{.underline}, 879 F.2d 1073 (3d Cir. 1989)
16

[St. Clair v. City of Chico]{.underline}, 880 F.2d 199 (9th Cir. 1989)
18

[Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept v.
Dole]{.underline}, 948 F.2d 953 (5th Cir. 1991) 8, 15, 17, 18

[Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504, 114 S.
Ct. 2381, 129 L. Ed. 2d 405 (1994)

> 13

[Travis v. Pennyrile Rural Elec. Coop.]{.underline}, 399 F.2d 726 (6th
Cir. 1968) 19

[Ukiah Valley Med. Ctr. v. Federal Trade Comm\'n]{.underline}, 911 F.2d
261 (9th Cir. 1990) 8, 12, 13

[United States v. Alexander]{.underline}, 106 F.3d 874 (9th Cir. 1997)
2, 7

[United States v. Cinemark USA, Inc.]{.underline}, 99-CV-705 (Mar. 22,
2000) [passim]{.underline}

[United States v. Mitchell]{.underline}, 463 U.S. 206, 103 S. Ct. 2961
(1983) 7, 11

[United States v. Rural Elec. Convenience Coop. Co.]{.underline}, 922
F.2d 429 (7th Cir. 1991) 19

[Veldhoen v. United States Coast Guard]{.underline}, 35 F.3d 222 (5th
Cir. 1994) 8, 16

[Wells Fargo Co. v. Wells Fargo Express Co.]{.underline}, 556 F.2d 406
(9th Cir. 1977) 2, 18

[Western Illinois Home Health Care v. Herman]{.underline}, 150 F.3d 659
(7th Cir. 1998) 15

[Western Radio Servs. Co. v. Glickman]{.underline}, 123 F.3d 1189 (9th
Cir. 1997) 7, 12, 16

[Zaharakis v. Heckler]{.underline}, 744 F.2d 711 (9th Cir. 1984) 17

[**FEDERAL STATUTES** **AND REGULATIONS**]{.underline}

28 U.S.C. §1331 7

Administrative Procedure Act (\"APA\")

> 5 U.S.C. § 551, [et seq.]{.underline}; 8
>
> 5 U.S.C. § 553(e) 5
>
> 5 U.S.C. § 701(a)(2) 14
>
> 5 U.S.C. § 702 8
>
> 5 U.S.C. § 704 8, 7, 19, 20

Americans with Disabilities Act (\"ADA\")

> 42 U.S.C. § 12101, [et]{.underline} [seq]{.underline} 1, 2
>
> 42 U.S.C. § 12101 9
>
> 42 U.S.C. § 12181 9
>
> 42 U.S.C. § 12183 9
>
> 42 U.S.C. § 12186 10
>
> 42 U.S.C. § 12188 4, 5, 12, 14, 16

Fed. R. Civ. P. 6(e) 1

Fed. R. Civ. P. 12(a)(3) 1

28 C.F.R. 36.104 9

28 C.F.R. Part 36 App. A, § 4.33.3 [passim]{.underline}

56 Fed. Reg. 35,544 (1991), [codified at]{.underline} 28 C.F.R. §
36.101, [et seq.]{.underline} 10

**[MISCELLANEOUS]{.underline}**

Kenneth C. Davis & Richard J. Pierce, Jr., [Administrative Law
Treatise]{.underline}, § 15.15 at 391 (3d ed. 1994) 16

[Websters Ninth New Collegiate Dictionary]{.underline} (1990) 1

The United States submits this Memorandum in support of its motion to
dismiss the counterclaim filed by the architectural firm Salts,
Troutman, and Kaneshiro, Inc. (STK).[^1] In its counterclaim, STK
alleges that the United States has violated the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701-706, in attempting to enforce the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12101, [et seq.]{.underline},
and its regulations as applied to Defendants' stadium-style theaters.

**PRELIMINARY STATEMENT**

On December 17, 1999, the District Court entered a written order
dismissing without prejudice Defendant AMC\'s APA-based counterclaim, by
concluding that AMC[^2] had failed to identify any final agency action
that would provide grounds for jurisdiction to review this claim. Order
Granting Plaintiff's Motion to Dismiss Defendants' Counterclaim at 17-18
(December 17, 1999) (hereinafter "December 17^th^ Order"). The Court
specifically held that the Department of Justice's threats of litigation
and settlement negotiations, as well as its filing of an
[amicus]{.underline} brief in a Texas case and its filing of the present
suit against AMC, were not final agency action.[^3] [See]{.underline}
[id.]{.underline} at 11, 12-14. The Department subsequently amended its
complaint to name STK as a defendant. STK responded in its answer with
an APA counterclaim identical to

the one dismissed by the December 17th order. Because this Court has
already rejected all of Defendants\' possible grounds for identifying
final agency action by the government, and because even with further
discovery Defendants cannot identify any final agency action "meeting
the standards set forth in \[the December 17^th^\] order,"
[see]{.underline} [id.]{.underline} at 18,[^4] under the law of the case
the Court should dismiss STK\'s counterclaim for lack of jurisdiction.
[See]{.underline} [United States v. Alexander]{.underline}, 106 F.3d
874, 876 (9^th^ Cir. 1997).

**STATUTORY AND FACTUAL BACKGROUND**

The U.S. Department of Justice (\"Department\") has been designated by
Congress as the agency assigned to monitor and enforce compliance with
most provisions of the Americans with Disabilities Act (\"ADA\"), 42
U.S.C. §§ 12101, [et]{.underline} [seq]{.underline}. In 1997, the
Department began investigating a relatively new facility design ---
stadium-style movie theaters. In these theaters, most moviegoers reach
their seats by climbing stairs rather than by walking down traditional
sloped-floor aisles. Of course, moviegoers who use wheelchairs, who are
entitled under the ADA to access to \"comparable\" seating in movie
theaters, are unable to climb the stairs to reach the stadium-style
seats.

With few exceptions, AMC and STK[^5] have responded to this dilemma not
by designing theaters to allow entry into the stadium section by
wheelchair users, but by placing wheelchair seating on the floor, to the
side of, or in front of, the stadium-style seats. This practice has
resulted in numerous complaints by individuals with disabilities who are
forced to choose

between sitting in craned-neck discomfort in the front of the theater
(the worst seats in the house) or foregoing movies in Defendants\'
theaters altogether. As common sense would indicate, the ADA does not
permit such discrimination.

In June, 1998, the Department advised AMC that its theaters with
stadium-style seating violated Title III of the ADA, 42 U.S.C. §§
12181-12189, and agreed to enter into negotiations with AMC to attempt
to resolve the matter without litigation. When seven months of
negotiations proved unsuccessful, the Department filed an enforcement
action against AMC alleging that its stadium-style theaters violate
Title III of the ADA. Earlier this year, this Court permitted the
Department to amend its complaint to add architect STK as a defendant.
The primary issue in the negotiations and in the enforcement complaint
has been the interpretation of a 1991 Department of Justice regulation
(\"Standard 4.33.3\") that requires wheelchair users to be provided with
\"lines of sight comparable to those for members of the general
public.\" 28 C.F.R. pt. 36, Appendix A, § 4.33.3.

The Department of Justice articulated its interpretation of Standard
4.33.3 in an [amicus]{.underline} brief filed in a private action
against another motion picture theater operator, [Lara v. Cinemark
USA]{.underline}, No. EP-97-CV-502-H (W.D. Tex.), and it has relied on
its interpretation of Standard 4.33.3 in filing its enforcement
complaint against Defendants. It is Standard 4.33.3, however, and not
the Department of Justice\'s interpretation, that has legal effect. The
Department cannot enforce compliance with Title III of the ADA except by
filing an enforcement action in U.S. District Court. 42 U.S.C. §
12188(b)(1)(B). Thus, Defendants are not forced to comply with the
Department's interpretation of Standard 4.33.3 unless and until a court
orders Defendants to do so. [See]{.underline}, [e.g.]{.underline}, 42
U.S.C. § 12188(b)(1) ("If the Attorney General has reasonable cause to
believe that . . . any person or group of persons is engaged in a
pattern or practice of discrimination under this subchapter . . .
\[she\] may commence a civil action. . . .); [id.]{.underline} §
12188(b)(2) (providing that in a civil action "the court . . . may grant
any equitable relief that [such court]{.underline} considers to be
appropriate . . . \[and\] may award such other relief as the
[court]{.underline} considers to be appropriate, including monetary
damages. . . .) (emphasis added); [United States v. Cinemark USA,
Inc.]{.underline}, 99-CV-705, Memorandum Opinion and Order, at 8 (Mar.
22, 2000) ("Any order for relief, damages, or levying of a fine can only
be made by the district court, and not by the Attorney General. 42
U.S.C. § 12188(b)(2).") (hereinafter "Ohio [Cinemark]{.underline} Order
(Mar. 22, 2000)") ([see]{.underline} Exh. A).[^6] As discussed further
below, the Department has not engaged in any final agency action in this
case that provides the basis for jurisdiction for STK's APA
counterclaim.

**ARGUMENT**

**I. Under the Law of the Case Doctrine, the Court Has Already Rejected
All Possible Grounds for Demonstrating Final Agency Action**

In her December 17^th^ Order, District Court Judge Morrow rejected all
of AMC's arguments that the Department had engaged in "final agency
action." Specifically, the Court found the following actions do
**[not]{.underline}** constitute final agency action for purposes of
conferring jurisdiction under the APA: filing briefs in litigation
(including [amicus]{.underline} briefs),[^7] the decision to file a
complaint,[^8] and settlement negotiations and threats of lawsuit.[^9]
[See also]{.underline} December 17^th^ Order at 14 ("Thus, viewed
separately or in combination, the matters AMC characterizes as

final agency action are not the kind of actions that are subject to
judicial review under the APA."). The Court further found that, on the
issue of whether the Department of Justice had taken an industry-wide
position as in [National Union Automatic Laundry & Cleaning Council v.
Shultz]{.underline}, 443 F.2d 689 (D.C. Cir. 1970), that "at most, DOJ
has communicated with ten members of the theater industry nationwide,
and has not sought to press its interpretation of Standard 4.33.3
uniformly even among the largest owners. Consequently, the court
concludes the evidence does not establish that DOJ has engaged in final
agency action." [See]{.underline} December 17^th^ Order at 17. The Court
ultimately dismissed AMC's motion without prejudice and permitted AMC to
seek leave to reassert its counterclaim "should it develop, through
discovery or otherwise, evidence of final agency action that satisfied
the legal standards discussed herein." [Id.]{.underline} at 17.

The District Court in the Northern District of Ohio recently agreed with
this Court's December 17^th^ Order, holding that "\[b\]ecause they do
not meet the requirements of finality, \[the Department of Justice's\]
filing of complaints in their enforcement actions; correspondence
discussing settlement or alleged violations of the ADA; and *amicus*
briefs are not 'final' agency actions." [See]{.underline} Ohio
[Cinemark]{.underline} Order at 6 (Mar. 22, 2000) (Exh. A).[^10] In
rejecting the defendant's finality arguments, the Court noted that

> The DOJ has no inherent power under the Act to adjudicate. Unlike many
> other agencies, it has no power to issue fines or to order a violator
> to do, or not do, some act. . . . Any order for relief, damages, or
> levying of a fine can only be made by the district court, and not by
> the Attorney General. 42 U.S.C. § 12188(b)(2). If the Court were to
> adopt Defendant's position \[on finality\], the United States and the
> Attorney General would be subject to suit any time the Attorney
> General initiated an investigation or filed a complaint based on the
> belief that some party was unlawfully discriminating against persons
> with disabilities. This is an untenable position which this Court
> declines to adopt. [See]{.underline} \[[FTC v.\] Standard
> Oil]{.underline}, 449 U.S. \[232,\] at 239 \[(1980)\] ("The
> Commission's issuance of its complaint was not 'final agency
> action.'").

[See]{.underline} [id.]{.underline} at 8. The Court subsequently granted
the United States' motion to dismiss Cinemark's APA counterclaim in its
entirety.[^11] [See]{.underline} [id.]{.underline} at 12. Indeed, the
conclusions of this Court and the Northern District of Ohio are well
supported by precedent. [See]{.underline} [National Labor Relations Bd.
v. Sears, Roebuck & Co.]{.underline}, 421 U.S. 132, 160 (1975) (decision
to file complaint not final agency action); [Mt. Adams Veneer Co. v.
United States]{.underline}, 896 F.2d 339, 343 (9^th^ Cir. 1990) (agency
advocacy in a judicial proceeding not final agency action); [Board of
Trade of the City of Chicago v. SEC]{.underline}, 883 F.2d 525, 529-30
(7^th^ Cir. 1989) (discretionary decision to prosecute a complaint not
reviewable under APA); [New Jersey Hospital Ass'n v. United
States]{.underline}, 23 F. Supp. 2d 497, 500 (D. N.J. 1998) (settlement
letters not final agency action); [Duval Ranching Co. v.
Glickman]{.underline}, 965 F. Supp. 1427, 1440 (D. Nev. 1997)
(threatening to file lawsuit not final agency action).

On February 15, 2000, STK filed an APA counterclaim identical in
substance to the one dismissed by this Court's December 17^th^ Order.
[Compare]{.underline}, [e.g.]{.underline}, Answer to First Am. Comp.,
Counterclaim ¶¶ 5, 14-16 [with]{.underline} Answer to Compl. ¶¶ 5,
23-25. Defendants have failed to articulate what agency action by the
Department constitutes final agency action. Indeed, further discovery
will not reveal any APA violation by the Department, as none of the
Department's actions meet the Ninth Circuit's definition of "final
agency action" needed to provide the basis for jurisdiction of an
APA-based challenge in this case. Because this Court has already
rejected all possible grounds by which the Defendants might claim final
agency action, [see]{.underline} [United States v.
Alexander]{.underline}, 106 F.3d 874, 876 (9^th^ Cir. 1997),[^12] and
because Defendants have failed to identify any other grounds that
constitute final agency action, this Court should dismiss STK's
counterclaim, with prejudice.

**II. There is No Final Department of Justice Action That Can Justify
Judicial Review**

> **A. The Administrative Procedure Act Is the Only Possible Source for
> a Waiver of Sovereign Immunity That Would Give This Court Jurisdiction
> Over STK's Counterclaim**

"It is axiomatic that the United States may not be sued without its
consent, and that the existence of consent is prerequisite to
jurisdiction." [United States v. Mitchell]{.underline}, 463 U.S. 206,
212, 103 S. Ct. 2961 (1983); [see also]{.underline} [E.J. Friedman Co.,
v. United States]{.underline}, 6 F.3d 1355, 1357 (9^th^ Cir. 1993)
("Waivers of sovereign immunity must be strictly construed in favor of
the government."); [Marshall Leasing, Inc. v. United
States]{.underline}, 893 F.2d 1096, 1098 (9^th^ Cir. 1990). The
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, waives
sovereign immunity to suit subject to several limitations, including
that only \"\[a\]gency 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.\"[^13] 5 U.S.C. § 704; [see
also]{.underline} [Gallo Cattle Co. v. United States Dep\'t of
Agriculture]{.underline}, 159 F.3d 1194, 1198 (9th Cir. 1998); [Western
Radio Servs. Co. v. Glickman]{.underline}, 123 F.3d 1189, 1196 (9th Cir.
1997). \"\[A\] finding of finality, or an applicable exception, is

essential when the court\'s reviewing authority depends on one of the
many statutes permitting appeal only of \'final\' agency actions, such
as § 10 of the APA, 5 U.S.C. § 704.\" [Ukiah Valley Med. Ctr. v. Federal
Trade Comm\'n]{.underline}, 911 F.2d 261, 264 (9th Cir. 1990).

A party asserting subject matter jurisdiction over an action (in this
case, STK) bears the burden of demonstrating that such jurisdiction
exists. [See]{.underline} [Kokkonen v. Guardian Life Ins.
Co.]{.underline}, 511 U.S. 375, 377 (1994). In its counterclaim, STK
relies on the waiver of sovereign immunity contained in the
Administrative Procedure Act (\"APA\"), 5 U.S.C. § 551, [et
seq.]{.underline}; [see]{.underline} [Taylor-Callahan-Coleman Counties
Dist. Adult Probation Dep't v. Dole]{.underline}, 948 F.2d 953 (5^th^
Cir. 1991). The APA's waiver of sovereign immunity contains several
limitations. [Gallo Cattle Co.]{.underline}, 159 F.3d at 1198-1199. The
APA provides for judicial review by a district court of \"agency
action\" in a case brought by a \"person suffering legal wrong because
of agency action.\" 5 U.S.C. § 702. The Act, however, "does not make
every agency action subject to judicial review." [See]{.underline}
[Taylor-Callahan-Coleman]{.underline}, 948 F.2d at 956; [see
also]{.underline} [Heckler v. Chaney]{.underline}, 470 U.S. 821, 828,
105 S. Ct. 1649, 1654, 84 L. Ed. 2d 714 (1985). Such review is limited
in various respects by other sections of the APA. Most relevant here,
agency action can be reviewed only if it is \"final,\" and, if it is
final, only if the plaintiff has \"no other adequate remedy in a
court.\" 5 U.S.C. § 704; [Gallo Cattle Co.]{.underline}, 159 F.3d at
1198-1199. Therefore, unless STK can demonstrate that it challenges
\"final agency action\" and that it is without an adequate remedy, there
is no waiver of sovereign immunity and this Court does not have
jurisdiction. [See]{.underline}, [e.g.]{.underline}, [id]{.underline}.;
[Veldhoen v. United States Coast Guard]{.underline}, 35 F.3d 222, 225
(5th Cir. 1994); [Taylor-Callahan-Coleman]{.underline}, 948 F.2d at 956.

> **B. The Department of Justice\'s Interpretation of Standard 4.33.3 Is
> Not \"Final Agency Action\" Subject to Judicial Review Under the
> Administrative Procedure Act**
>
> **1. The Department Is Simply Attempting to Enforce the Plain Language
> of Standard 4.33.3**

In this case, Defendants seek to turn enforcement of the ADA on its head
by filing a counterclaim which, in essence, challenges the Attorney
General's authority to file an enforcement action against it. Indeed,
"\[j\]udicial review . . . should not be a means of turning prosecutor
into defendant." [FTC v. Standard Oil Co. of Cal.]{.underline}, 449 U.S.
232, 243, 101 S. Ct. 488, 495, 66 L. Ed. 2d 416 (1980); [see
also]{.underline} [Dow Chemical v. United States EPA]{.underline}, 832
F.2d 319, 324 n.30 (5^th^ Cir. 1987). In its counterclaim, STK requests
a declaratory judgment that the Department of Justice\'s interpretation
of Standard 4.33.3 is procedurally improper, substantively incorrect,
and unenforceable. Essentially, STK asks the Court to prohibit the
Department of Justice from interpreting its own regulation, to paralyze
the Department's efforts to enforce the ADA against Defendants, and to
allow Defendants to continue discriminating against persons who use
wheelchairs by denying them access to the stadium-style seats that are
provided to all other members of the general public. The Court cannot
and should not grant such relief.

Under well-established Supreme Court and appellate precedent, the
Department of Justice\'s actions challenged here --- interpreting its
own regulations in the context of carrying out its enforcement mandate
--- are not \"final agency action\" subject to judicial review under the
Administrative Procedure Act. Therefore, the Court does not have
jurisdiction to hear STK's counterclaim.

The ADA was premised in part on the Congressional finding that
\"individuals with disabilities continually encounter various forms of
discrimination, including . . . effects of architectural . . .
barriers.\" 42 U.S.C. § 12101(a)(5). To combat this discrimination,
Congress mandated that all commercial facilities and \"public
accommodations\" designed and constructed for first occupancy after
January 26, 1993, be \"readily accessible to and usable by individuals
with disabilities . . . in accordance with standards set forth or
incorporated by reference in regulations\" issued pursuant to the Act.
42 U.S.C. § 12183(a)(1). Movie theaters are among the specific types of
entities considered to be a "public accommodation" and therefore subject
to the requirements of the Act.[^14] 42 U.S.C. § 12181(7)(C).

The Department of Justice, through the Attorney General, was
specifically designated by Congress as the agency authorized to issue
regulations to carry out the requirements of the ADA with respect to new
construction of public accommodations and commercial facilities.
[See]{.underline} 42 U.S.C. § 12186(b). The Department of Justice issued
such regulations on July 26, 1991. [See]{.underline} 56 Fed. Reg. 35,544
(1991), [codified at]{.underline} 28 C.F.R. § 36.101, [et
seq.]{.underline} The regulations incorporate architectural standards
for new construction that are known as the Standards for Accessible
Design (the \"Standards\"). [See]{.underline} 28 C.F.R. Part 36 App. A.
The Standards address numerous issues, but the primary regulation at
issue in this case is Standard 4.33.3, governing the placement of
wheelchair locations in assembly areas such as movie theaters. Standard
4.33.3 states in part:

> Wheelchair 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.

28 C.F.R. Part 36 App. A, § 4.33.3. Before 1998, the Department of
Justice had never announced an interpretation of this regulation as
applied to stadium-style movie theaters, nor had any court addressed
that issue.

In December 1997, a group of disabled individuals filed suit against a
motion picture theater operator alleging that certain stadium-style
theaters, and specifically the placement of wheelchair locations in
those theaters, violate the ADA. [Lara v. Cinemark USA,
Inc.]{.underline}, No. 97-CV-502 (W.D. Tex.). On July 21, 1998, the
Department of Justice submitted an [amicus]{.underline} brief in
[Lara]{.underline} on behalf of the United States in which it offered to
the court its interpretation of Standard 4.33.3 as applied to
stadium-style theaters. The Department's [amicus]{.underline} brief
offered the following plain language approach to Standard 4.33.3:

> Once measured, the lines of sight provided to wheelchair users must be
> comparable to those provided to members of the general public.
> "Comparable" is an ordinary word used in everyday parlance. [Grider v.
> Cavazos]{.underline}, 911 F.2d 1158, 1161-62 (5^th^ Cir. 1990) (courts
> forbidden from tampering with plain meaning of words in ordinary lay
> and legal parlance); [Webster's]{.underline} defines "comparable" as
> "capable of or suitable for comparison; [equivalent;
> similar]{.underline}." [Webster's Ninth New Collegiate
> Dictionary]{.underline} (1990) (emphasis added). Consistent with this
> practical definition, 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 in stadium style
> seating, wheelchair locations must be provided lines of sight in the
> stadium style seats within the range of viewing angles as those
> offered to most of the general public in the stadium style seats,
> adjusted for seat tilt. Wheelchair locations should not be relegated
> to the worst sight lines in the building, but neither do they
> categorically have to be the best. Instead, consistent with the
> overall intent of the ADA, wheelchair users should be provided equal
> access so that their experience equates to that of members of the
> general public.[^15] In other words, to ensure that wheelchair users
> are provided lines of sight that are comparable to the viewing angles
> offered to the general public, the lines of sight provided to
> wheelchair users should not be on the extremes of the range offered in
> the stadium. As described in the industry guidelines, "viewing angles"
> refers to vertical viewing angles, horizontal viewing angles and to
> other components that affect "lines of sight."

Brief of [Amicus Curiae]{.underline} United States on Summary Judgment
Issues at 8-9.

The Department's views, even when asserted in an [amicus]{.underline}
brief, are entitled to respect because the Department is charged by
Congress with implementing the ADA. [See]{.underline} [Olmstead v.
Zimring]{.underline}, 119 S. Ct. 2176, 2185-86 & 2185 n.9 (1999)
("Because the Department \[of Justice\] is the agency directed by
Congress to issue regulations implementing Title II \[of the ADA\] . . .
its views warrant respect."); [see also]{.underline} [Bragdon v.
Abbott]{.underline}, 524 U.S. 624, 642, 118 S. Ct. 2196, 141 L. Ed. 2d
540 (1998) ("\[T\]he well-reasoned views of the agencies implementing a
statute constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance."); [Auer v.
Robbins]{.underline}, 519 U.S. 452, 461-62, 117 S. Ct. 905 (1997)
(holding that the Secretary of Labor's interpretation of his
Department's regulation should be controlling unless "plainly erroneous
or inconsistent with the regulation," even if "the Secretary's
interpretation comes to us in the form of a legal brief") (internal
quotation marks omitted). However, the Department's interpretation of
the plain language does not bind the Defendants absent a court order.
[See]{.underline} 42 U.S.C. § 12188(b)(2); [see also]{.underline} [Ukiah
Valley]{.underline}, 911 F.2d at 265 (finding no final agency action in
filing an administrative complaint, because plaintiffs were "not yet
subject to any order requiring them to act"); Ohio
[Cinemark]{.underline} Order at 6 (Mar. 22, 2000) (Exh. A).

> **2. Because the Department Has Not Engaged in Final Agency Action in
> Attempting to Enforce the ADA and Its Regulations, This Court Lacks
> Jurisdiction to Hear STK's Counterclaim**

An agency action is not a "final agency action" unless it is "one by
which rights or obligations have been determined, or from which legal
consequences will flow." [Gallo Cattle Company]{.underline}, 159 F.3d at
1199; [Western Radio]{.underline}, 123 F.3d at 1196; [see]{.underline}
[also]{.underline} [Bennett v. Spear]{.underline}, 520 U.S. 154, 177-78
(1997); [Dow Chemical]{.underline}, 832 F.2d at 323. To be final agency
action, \"the administrative action challenged should be a definitive
statement of an agency\'s position; the action should have a direct and
immediate effect on the day-to-day business of the complaining parties;
the action should have the status of law; immediate compliance should be
expected; and the question should be a legal one.\" [Mt. Adams Veneer
Co.]{.underline}, 896 F.2d at 343. As the December 17th order and
circuit court precedent make clear, none of the Department\'s actions in
attempting to enforce the requirements of Standard 4.33.3 in the
stadium-style theater context violate the APA.

For example, the Department\'s letters to Defendants during settlements
negotiations, and the Department\'s efforts to settle potential claims
against other theater chains, are not final agency actions reviewable
under the APA. [See]{.underline} [Association of Public Agency Customers
v. Bonneville Power Admin.]{.underline}, 126 F.3d 1158, 1184 (9th Cir.
1997) (\"Negotiations, which are not final actions, therefore are not
reviewable, and we decline to consider them.\"). Further, the
Department\'s filing of briefs, including the [amicus]{.underline} brief
in the [Lara]{.underline} case, are not properly subject to challenge
under the APA, since \"\[a\]gency advocacy in a judicial proceeding is
obviously not such agency action as would be subject to judicial
review\" under the APA. [Mt. Adams Veneer]{.underline}, 896 F.2d at
343.[^16] In filing [amicus]{.underline} briefs with the
[Lara]{.underline} court, the Department was offering its views on the
interpretation of Standard 4.33.3 to the court---views that the court is
free to reject if it believes that it is plainly erroneous or that it is
inconsistent with the regulatory purposes. [See]{.underline} [Thomas
Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504, 114 S. Ct. 2381,
2386, 129 L. Ed. 2d 405 (1994).

In essence, the \"action\" that STK challenges in this litigation is the
Department of Justice\'s interpretation of its own regulation.
[See]{.underline} STK\'s Counterclaim, ¶ 6. That interpretation was
developed and put forward as part of the Department\'s responsibility to
enforce the ADA, but it has not been codified, nor has it resulted in
any legal consequences for anyone, let alone Defendants. As a result,
the APA does not provide a means to challenge it. The decision to file
an enforcement action does not constitute final agency action.
[See]{.underline} [Standard Oil Co.]{.underline}, 449 U.S. at 238
(issuing a complaint is not "final agency action"); [Sears, Roebuck &
Co.]{.underline}, 421 U.S. at 160 (memorandum recommending filing of
complaint not final agency action); [Ukiah Valley]{.underline}, 911 F.2d
at 263-64 (issuing an administrative complaint not final agency action).
The filing of a complaint against STK "has no legal force" on STK and
imposes no "burden" other than responding to the Department's
allegations, which cannot serve as the basis of a finding of final
agency action. [See]{.underline} [Standard Oil Co.]{.underline}, 449
U.S. at 242; [see also]{.underline} Ohio [Cinemark]{.underline} Order at
8 (Mar. 22, 2000) (Exh. A). Indeed, "the expense and annoyance of
litigation is part of the social burden of living under government" and
not the type of burden that fixes rights or obligations.
[See]{.underline} [Standard Oil]{.underline}, 449 U.S. at 244 (quoting
[Petroleum Exploration, Inc. v. Public Serv. Comm'n]{.underline}, 304
U.S. 209, 222, 58 S. Ct. 834, 841, 82 L. Ed. 1294 (1938)) (internal
quotation marks omitted). To allow defendants to challenge the decision
to file a complaint as final agency action turns enforcement of the law
on its head, "turning prosecutor into defendant" in potentially every
case in which an enforcement action is brought.[^17] [See]{.underline}
[id.]{.underline} at 242-43.

An extended analysis of the Fifth Circuit's decision in
[Dow]{.underline} is worthwhile because that case involved facts
strikingly similar to those here --- a procedural and substantive
challenge to an agency\'s efforts to enforce a statute and regulations
entrusted to it. Specifically, Dow challenged the EPA\'s interpretation
of its own regulation regarding the meaning of \"discharges,\" an
interpretation that had been disclosed and applied to Dow in the context
of an investigation of Dow\'s alleged discharges of vinyl chloride gas.
Subsequent to Dow\'s filing its lawsuit, the EPA filed a complaint in a
pending enforcement action against Dow in which, relying on its
interpretation of its regulation, it asked a court to order Dow to
comply with its regulation as interpreted, and order civil penalties.

The Court dismissed Dow\'s claim, finding that EPA had not taken any
steps that could be characterized as final agency action. The Court
first held that EPA\'s interpretation of its discharge regulation, just
like the Department of Justice\'s interpretation of Standard 4.33.3,

> is \"final\" only in the sense that no one at the agency currently
> plans to revise it. The same could be said for countless other
> instances of legal \"interpretation\" that inevitably occur. . . .
> When these interpretations do not establish new rights or duties ---
> when they do not fix a legal relationship --- they do not constitute
> \"final action\" by the agency and they are not reviewable. . . .

[Dow]{.underline}, 832 F.2d at 323-24. The Court reached this holding
despite recognizing that Dow might eventually be penalized for failing
to abide by the discharge regulation as interpreted by EPA. \"But the
legal source for these \[penalties\] --- if indeed the district court
concludes they are warranted --- will be \[the regulation\], and not any
later EPA interpretation of that regulation.\" [Id.]{.underline} at 323;
[see also]{.underline} [Orengo Caraballo v. Reich]{.underline}, 11 F.3d
186, 195 (D.C. Cir. 1993) (interpretive statement in context of
adjudication not intended to create new rights or duties).

The same result is mandated in this case. As the Department of Justice
has interpreted Standard 4.33.3 --- specifically the phrase \"lines of
sight comparable to those for members of the general public\" in that
regulation --- Defendants\' practice of placing wheelchair seating in
the front of its stadium-style theaters, outside the stadium portion,
does not comply with the regulation. But it is the regulation itself,
and not the Department of Justice\'s interpretation of it, that imposes
the duty to provide wheelchair users with \"comparable\" seating.
Indeed, the Department of Justice has issued no order requiring
Defendants to comply with its interpretation (nor does the ADA authorize
the Department to compel action), and can impose no penalty on
Defendants for failing to comply with its interpretation absent a court
order. The interpretation therefore does not have "the status of law
with penalties for noncompliance" and is not final agency action.
[Taylor-Callahan-Coleman]{.underline}, 948 F.2d at 959; [see
also]{.underline} [Resident Council of Allen Parkway Village v. United
States Dep't of Housing & Urban Development]{.underline}, 980 F.2d 1043,
1056 (5^th^ Cir. 1993) (HUD interpretation of statute not final because
it does not have status of law).[^18]

The fact that the Department of Justice has filed an enforcement action
based on an application of Standard 4.33.3 to Defendants\' stadium-style
theaters does not change the finality analysis. This exact situation
arose in [Dow]{.underline}, and the Fifth Circuit expressly held that
the filing of an enforcement suit by an administrative agency
responsible for enforcement of a statute is not final agency action.
[Dow]{.underline}, 832 F.2d at 325. While Defendants now have the
\"obligation\" to defend themselves in litigation, that \"obligation\"
is \"different in kind and legal effect\" from the burdens imposed by
final agency action. [Id.]{.underline} (quoting [Standard
Oil]{.underline}, 449 U.S. at 242).

The [Dow]{.underline} court's decision is consistent with the pragmatic
approach the Supreme Court and the Ninth Circuit employ to assess
finality. [Standard Oil]{.underline}, 449 U.S. at 239; [Gallo Cattle
Co.]{.underline}, 159 F.3d at 1199; [Western Radio Servs.
Co.]{.underline}, 123 F.3d at 1196. Administrative agencies continually
engage in enforcement efforts, often relying on their own
interpretations of statutes and regulations entrusted to their
administration. [See]{.underline}, [e.g.]{.underline}, [American Mining
Congress v. Mine Safety & Health Admin.]{.underline}, 995 F.2d 1106,
1111-12 (D.C. Cir. 1993). To allow a defendant to preempt an enforcement
action through a procedural challenge would significantly hinder agency
enforcement efforts. As the Supreme Court put it, it is not the purpose
of judicial review provisions to turn prosecutor into defendant.
[Standard Oil]{.underline}, 449 U.S. at 243; [see also]{.underline}
Kenneth C. Davis & Richard J. Pierce, Jr., [Administrative Law
Treatise]{.underline}, § 15.15 at 391 (3d ed. 1994) (\"\[c\]ourts cannot
possibly get into the business of reviewing . . . announcements of major
investigations or enforcement actions\").

The Department of Justice\'s complaint against STK is a statement that
there is \"reasonable cause to believe\" that discrimination under the
ADA has occurred, [see]{.underline} 42 U.S.C. § 12188(b)(1)(B), and such
a statement, even in the form of a formal complaint, is not final agency
action. [Standard Oil]{.underline}, 449 U.S. at 241. In essence, the
Department of Justice has \"recommended\" that a court make certain
findings, and that does not \"fix legal rights or impose obligations,
even if further proceedings prompted by the \[agency\'s\] decision
may.\" [Veldhoen]{.underline}, 35 F.3d at 226. [See also]{.underline}
[Solar Turbines Inc. v. Seif]{.underline}, 879 F.2d 1073, 1082 (3d Cir.
1989) (issuance of administrative order not final agency action where no
compulsion to obey order). Any penalty imposed on STK would result from
a court\'s determination that it failed to comply with the ADA and its
regulations, rather than any action by the Department of Justice.
[See]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199.

Finally, as noted earlier, this Court has already rejected the argument
that the Department of Justice has taken an industry-wide position as
the agency did in [National Automatic Laundry & Cleaning
Council]{.underline}, 443 F.2d 689 (D.C. Cir. 1971). [See]{.underline}
December 17^th^ Order at 17. The Court in [National
Automatic]{.underline} found final agency action when the head of an
agency issued a ruling to an industry group on the meaning of the Fair
Labor Standards Act. 443 F.2d at 702. [But see]{.underline} [Zaharakis
v. Heckler]{.underline}, 744 F.2d 711, 712 (9^th^ Cir. 1984) (holding
that interpretive rules do not "grant rights \[or\] impose obligations"
on private interests but rather "merely express the agency's intended
course of action, its tentative view of the meaning of a particular
statutory term, or internal house-keeping measures organizing agency
activities") (internal quotation marks omitted). The narrow factual case
presented by [National Automatic Laundry]{.underline} does not apply to
this case, as the Department's attempts to negotiate settlements with
individual theaters owners who it believes have violated the plain
language of the law do not constitute final agency action that binds the
industry. These efforts "do not have the status of law with penalties
for noncompliance." [See]{.underline}
[Taylor-Callahan-Coleman]{.underline}, 948 F.2d at 959.

Furthermore, this Court has already determined that investigating and
litigating against approximately ten members of the theater industry
nationwide "does not establish that DOJ has engaged in final agency
action" even under the [National Automatic Laundry]{.underline}
framework. [See]{.underline} December 17^th^ Order at 17. This ruling is
consistent with the Ninth Circuit's determination that negotiations "are
not final action, \[and\] therefore are not reviewable."
[See]{.underline} [Bonneville Power Admin.]{.underline}, 126 F.3d at
1184.

> **C. Further Discovery in This Case Will Not Reveal Any Final Agency
> Action**

As a general matter, judicial review under the APA is limited to a
review of the administrative record. [See]{.underline} [Friends of the
Earth v. Hintz]{.underline}, 800 F.2d 822, 828 (9^th^ Cir. 1986); [Black
Construction Corp. v. INS]{.underline}, 746 F.2d 503, 505 (9^th^ Cir.
1984); [Arizona Past & Future Foundation, Inc. v. Lewis]{.underline},
722 F.2d 1423, 1425-26 (9^th^ Cir. 1983). "\[T\]he focal point for
judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing court."
[Camp v. Pitts]{.underline}, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36
L. Ed. 2d 106 (1973). Even assuming that Defendants can demonstrate they
are entitled to discovery relating to their APA-based challenge (a
question currently pending before Magistrate Judge Hillman),[^19]
Defendants cannot identify any possible final agency action by the
Department in this case that has not already been rejected by this and
other Courts. In investigating and pursuing enforcement actions against
STK, AMC, and several other owners of stadium-style theaters, the
Department has not engaged in any final agency action from "which rights
or obligations have been determined, or from which legal consequences
will flow." [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199. None of
the Department's actions qualify as final agency action, including the
decision to file complaints against theaters and the actual filing of
complaints, [Standard Oil]{.underline}, 449 U.S. at 238; [Sears,
Roebuck]{.underline}, 421 U.S. at 160; any briefs or other advocacy
taken in judicial proceedings, [see]{.underline} [Mt. Adams Veneer
Co.]{.underline}, 896 F.2d at 343; [Board of Trade of the City of
Chicago]{.underline}, 883 F.2d at 529-30; any settlement letters with
theaters or STK, [New Jersey Hospital Ass'n]{.underline}, 23 F. Supp. 2d
at 500; or any settlement negotiations, [Bonneville Power
Admin.]{.underline}, 126 F.3d at 1184. The fact that the Department's
investigations have led it to believe that several other theaters
owners, not just AMC and STK, have violated the ADA and its regulations
in designing, constructing, and/or operating stadium-style theaters does
not suddenly convert its efforts to enforce the law into final agency
action. [See]{.underline} [Taylor-Callahan-Coleman]{.underline}, 948
F.2d at 958-59. Defendants have not identified any action by the
Department that qualifies as final agency action in this case, other
than the initial promulgation of Standard 4.33.3 in 1991, which
Defendants have not challenged. STK has failed to meet its burden of
making an "initial prima facie showing of jurisdictional facts at the
pleading stage," and the Court need not wait for further discovery on
this jurisdictional question "when it is clear that further discovery
would not demonstrate facts sufficient to constitute a basis for
jurisdiction." [See]{.underline} [Wells Fargo Co.]{.underline}, 556 F.2d
at 430 n.24 (9^th^ Cir.). [See also]{.underline} [St. Clair v. City of
Chico]{.underline}, 880

F.2d 199, 201 (9^th^ Cir. 1989) (holding that district court did not err
in denying party asserting jurisdiction additional discovery when it was
clear party could not demonstrate the requisite jurisdictional facts);
[F.E. Trotter, Inc. v. Watkins]{.underline}, 869 F.2d 1312, 1318 (9^th^
Cir. 1989) (holding that, even assuming the truth of plaintiff's
allegations, if defendants are immune from suit \[here, through
qualified immunity\], "permitting discovery would be futile").

> **D. The Court Need Not Reach the Issue of Whether STK Has an Adequate
> Remedy in a Court Because STK Cannot Point to Any Action by the
> Department in this Case that Constitutes Final Agency Action.**

Because the Department has not engaged in final agency action, the court
need not reach the question of whether an adequate remedy in court
exists because the Court lacks jurisdiction to hear STK's APA-based
counterclaim. [See]{.underline} 5 U.S.C. § 704 (providing review for
"final agency action for which there is no other adequate remedy in a
court"); [see also]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d
at 1198; [New Jersey Hospital Ass'n]{.underline}, 23 F. Supp. 2d at 500,
501. Even if the Department's interpretation of Standard 4.33.3 were
final agency action, however, the Court still lacks jurisdiction because
STK has an \"adequate remedy" in a court. 5 U.S.C. § 704; [see
also]{.underline} [Marshall Leasing]{.underline}, 893 F.2d at 1110. In
defending this action, STK is free to argue that the Department's
interpretation of Standard 4.33.3 is incorrect, and therefore should not
be applied to STK. [See]{.underline}, [e.g.]{.underline}, [New Jersey
Hospital Ass'n]{.underline}, 23 F. Supp. 2d at 51 (defendant had
adequate remedy because it could argue that the Department of Justice
could not establish the necessary scienter to bring a viable claim under
the FCA). Where a party has the ability to assert its claims as a
defense, that is an adequate remedy at law. [See]{.underline} [Georgia
v. City of Chattanooga, Tennessee]{.underline}, 264 U.S. 472, 483
(1924); [see also]{.underline} [United States v. Rural Elec. Convenience
Coop. Co.]{.underline}, 922 F.2d 429, 433 (7th Cir. 1991); [Travis v.
Pennyrile Rural Elec. Coop.]{.underline}, 399 F.2d 726, 729 (6th Cir.
1968). Under the APA, then, this Court does not have jurisdiction to
hear STK's claims. [See]{.underline} [New Jersey Hosp.
Ass\'n]{.underline}, 23 F. Supp. 2d at 501; [NAACP v.
Meese]{.underline}, 615 F. Supp. 200, 203 (D.D.C. 1985). Although STK
might prefer to litigate its interpretation of Standard 4.33.3
preemptively as part of an affirmative claim instead of simply defending
an enforcement action by arguing that it disagrees with the enforcing
agency\'s interpretation of the agency\'s own regulations, that does not
mean that STK lacks an \"adequate\" opportunity, within the meaning of 5
U.S.C. § 704, to challenge the agency\'s interpretation of its
regulation. [See]{.underline}, [e.g.]{.underline}, [First Nat\'l Bank v.
Steinbrink]{.underline}, 812 F. Supp. 849, 853-54 (N.D. Ill. 1993)
(expense or inconvenience of defending self does not limit adequacy of
remedy in court).

**CONCLUSION**

Because this Court has already ruled in its December 17^th^ Order that
there was no final agency action, and because there is no basis upon
which this Court may exercise its jurisdiction pursuant to the APA,
STK's counterclaim must be dismissed, with prejudice.

> **Respectfully submitted,**
>
> BILL LANN LEE
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section
>
> Civil Rights Division
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> JEANINE M. WORDEN
>
> JOHN ALBERT RUSS IV
>
> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Section
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> Telephone: (202) 307-6556
>
> Telephone: (202) 353-7738
>
> Facsimile: (202) 307-1198
>
> Counsel for Plaintiff
>
> United States of America

Dated: April 17, 2000

[^1]: Fed. R. Civ. P. 12(a)(3) provides that the United States has 60
    days following the service of a counterclaim to file a responsive
    pleading. Where a counterclaim was served by mail, as in this case
    where the counterclaim was served by mail on February 15, 2000, the
    United States has 63 days to serve a timely motion to dismiss. Fed.
    R. Civ. P. 6(e). Thus, the United States' motion to dismiss is
    timely so long as it is served by April 18, 2000.

[^2]: \"AMC\" refers collectively to Defendants AMC Entertainment, Inc.
    and American Multi-Cinema, Inc.

[^3]: A district court in the Northern District of Ohio recently reached
    the same conclusion in dismissing an APA counterclaim raised by
    another movie theater chain. [See]{.underline} [United States v.
    Cinemark USA, Inc.]{.underline}, 99-CV-705, Memorandum Opinion and
    Order at 6 (Mar. 22, 2000) ("Because they do not meet the
    requirements of finality, Plaintiff's filing of complaints in their
    enforcement actions; correspondence discussing settlement or alleged
    violations of the ADA; and *amicus* briefs are not 'final' agency
    actions.") (hereinafter "Ohio [Cinemark]{.underline} Order (Mar. 22,
    2000)") ([see]{.underline} Exh. A).

[^4]: [See]{.underline} [Wells Fargo Co. v. Wells Fargo Express
    Co.]{.underline}, 556 F.2d 406, 430 n.24 (9^th^ Cir. 1977) (person
    asserting jurisdiction bears burden of making "initial prima facie
    showing of jurisdictional facts at the pleading stage"; court need
    not allow further discovery regarding jurisdictional issue "when it
    is clear that further discovery would not demonstrate facts
    sufficient to constitute a basis for jurisdiction").

[^5]: STK had been retained by AMC to perform services related to the
    design, construction, and alternation of various AMC theaters with
    stadium-style seating, including the Norwalk Theater and the
    Promenade 16 Theater here in the Central District. First Am. Compl.
    at ¶ 14.1.

[^6]: Indeed, in the [Lara]{.underline} action, where a private
    plaintiff sued a motion picture theater operator to enforce Standard
    4.33.3, the Department filed an [amicus]{.underline} brief to
    convince the court to adopt the Department's interpretation of the
    regulation. However, the district court found the theaters in
    violation of the ADA and Standard 4.33.3 based on its own
    interpretation of the plain language of the regulation --- not
    relying on the Department's interpretation. [See]{.underline} [Lara
    v. Cinemark]{.underline}, 1998 WL 1048497 (W.D. Tex. 1998)
    ([see]{.underline} Exh. B). The Fifth Circuit recently reversed the
    District Court, announcing its own interpretation of Standard 4.33.3
    and holding that "section 4.33.3 does not require movie theaters to
    provide disabled patrons with the same viewing angles available to
    the majority of non-disabled patrons." [Lara v.
    Cinemark]{.underline}, 2000 WL 297662 (5^th^ Cir. April 6, 2000)
    ([see]{.underline} Exh. C). Although the Department respectfully
    disagrees with the Fifth Circuit's conclusion (and will fully brief
    its arguments distinguishing the [Lara]{.underline} opinion at the
    appropriate time), its decision is further evidence that the
    Department's interpretation is not final agency action, as it
    reached the merits of interpreting the plain meaning of Standard
    4.33.3.

[^7]: [See]{.underline} December 17^th^ Order at 10.

[^8]: [See]{.underline} [id.]{.underline} at 11.

[^9]: [See]{.underline} [id.]{.underline} at 12.

[^10]: The Court alternatively noted that, even if such actions were
    final agency actions, Defendant Cinemark had failed to exhaust its
    administrative remedies under 5 U.S.C. § 553(e). [See]{.underline}
    [id.]{.underline} at 6 n.4.

[^11]: In the case [Cinemark v. Department of Justice]{.underline}, No.
    99-CV-0183 (N.D. Tex.), a declaratory judgment action filed by a
    movie theater chain against the Department, the same issue is still
    pending before the Court. Prior to the Ohio decision, a Magistrate
    Judge orally recommended the conclusion that the Department's
    actions are final agency action subject to review, but the Court is
    considering this issue at a hearing on April 21, 2000.

[^12]: \"Under the \'law of the case\' doctrine, \'a court is generally
    precluded from reconsidering an issue that has already been decided
    by the same court, or a higher court in the identical case.\"
    [See]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (quoting
    [Thomas v. Bible]{.underline}, 983 F.2d 152, 154 (9th Cir. 1993)). A
    court may only depart from the law of the case where \"1) the first
    decision was clearly erroneous; 2) an intervening change in the law
    has occurred; 3) the evidence on remand is substantially different;
    4) other changed circumstances exist; or 5) a manifest injustice
    would otherwise result.\" [See]{.underline} [id]{.underline}. at
    876. As seen below, the law of the Ninth Circuit is quite clear that
    the actions taken by the Department of Justice in this case do not
    constitute final agency action, nor have courts intervened to change
    those standards. [See]{.underline} discussion in Section II,
    [supra]{.underline}. Nor have any intervening facts or manifest
    injustice arisen since December 17, 1999 to justify disturbing the
    Court's conclusions.

[^13]: Although the APA can waive sovereign immunity, it does not
    provide an independent basis for subject matter jurisdiction.
    [See]{.underline} [Gallo Cattle Co. v. United States Dep\'t of
    Agriculture]{.underline}, 159 F.3d 1194, 1198 (9th Cir. 1998).
    Jurisdiction is conferred under 28 U.S.C. § 1331, which permits
    challenge to federal agency action as to claims arising under
    federal law, unless a statute expressly precludes review.
    [See]{.underline} [id.]{.underline} In this case, 5 U.S.C. § 704
    permits review of "final" agency actions.

[^14]: Motion picture theaters are also "commercial facilities" within
    the meaning of Section 301(2) of the ADA, since they "are intended
    for nonresidential use" and since their "operations will affect
    commerce." [See]{.underline} 42 U.S.C. § 12181(2); 28 C.F.R. 36.104.

[^15]: [See]{.underline} 28 C.F.R. Part 36, §§ 36.202, 36.203, 36.302
    (As a general rule, the objective of Title III is to provide persons
    with disabilities who utilize public accommodations with an
    experience that is functionally equivalent to that of other
    patrons.). . . .

[^16]: [Cf.]{.underline} [Heckler]{.underline}, 470 U.S. at 821 n.5
    ("\[W\]e find it difficult to believe that statements of agency
    counsel in litigation against private individuals can be taken to
    establish 'rules' that bind an entire agency prospectively. Such
    would turn orderly process on its head.").

[^17]: Furthermore, apart from the requirement that an agency action be
    final, courts cannot review agency action that is committed to its
    discretion by law. [See]{.underline} [New Jersey Hospital
    Ass'n]{.underline}, 23 F. Supp. 2d at 500; [see also]{.underline} 5
    U.S.C. § 701(a)(2). In this case, the Attorney General may commence
    a civil action if she "has reasonable cause to believe that . . .
    any person or group of persons is engaged in a pattern or practice
    of discrimination under this subchapter." [See]{.underline} 42
    U.S.C. § 12188(b)(1)(B). Such language provides the Attorney General
    with discretion to "assess the results of \[an\] investigation, as
    well as the application of agency policy and available resources, to
    the factual circumstances before them." [See]{.underline} [New
    Jersey Hospital Ass'n]{.underline}, 23 F. Supp. 2d at 501-02; [see
    also]{.underline} [E.J. Friedman Co.]{.underline}, 6 F.3d at 1359
    (finding that decision by the IRS "to discharge a lien" was an
    agency action committed to agency discretion, as there was no
    meaningful standard against which to judge the agency's exercise of
    that discretion).

[^18]: [Cf.]{.underline} [Western Illinois Home Health Care v.
    Herman]{.underline}, 150 F.3d 659, 663-64 (7th Cir. 1998) (party not
    entitled to seek judicial review when no legal consequences for
    disregarding agency\'s position); [Allsteel, Inc. v. United States
    EPA]{.underline}, 25 F.3d 312, 315 (6th Cir. 1994) (\"Where
    violation of an order would not expose the party to penalties or
    obligations not already imposed by the statute, the impact of the
    order may not be sufficiently practical or immediate to make the
    action \'final.\'\").

[^19]: On April 12, 2000, this Court upheld Magistrate Judge Hillman's
    February 25, 2000, minute order denying Defendants' discovery of the
    United States' settlement negotiations with other theaters. The
    Court held that it "agrees with the Magistrate that evidence
    pertaining to meetings, discussions, and negotiations between
    plaintiff and other theater owners concerning enforcement of the
    ADA's line-of-sight requirements is privileged and not subject to
    discovery." [United States v. AMC]{.underline}, CV 99-1034, Order
    Denying Defendants' Motion for Review and Reconsideration at 5 (Apr.
    12, 2000).